ORAL ARGUMENT HAS BEEN SCHEDULED FOR JANUARY 17, 1995
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
xxxxxxx B. xxxxxxx,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Assistant Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
Cr. No. 92-213
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
I. PARTIES AND AMICI:
A. Names of Parties Below and on Appeal
This appeal arises from a criminal trial in which two defendants were convicted of conspiring to distribute and possess
with the intent to distribute in excess of five kilograms of cocaine and in excess of 50 grams of cocaine base, and defendant xxxxxxx was convicted of engaging in a continuing enterprise and distribution of more than 50 grams of cocaine base. The appellant, xxxxxxx B. xxxxxxx, was one of the defendants in the trial below. The other defendant, Dennis xxxxxxx, is the appellant in 94-3003, consolidated with this case for appeal. There are no amici.
II. RULINGS UNDER REVIEW:
Appellant xxxxxxx xxxxxxx was convicted by a jury on August 18, 1993, of engaging in a continuing enterprise (CCE), in violation of 21 U.S.C. § 848, conspiring to possess and to possess with intent to distribute in excess of five kilograms of cocaine and in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846, and distribution of more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(3). On the fourth count of the indictment, the jury determined that the sum of $1,000,000 was subject to forfeiture to the United States. The jury used a special verdict form summarizing the government's evidence of drug transactions carried out by the criminal enterprise. App. 1. Of the 27 drug transactions listed in the special verdict, the jury found 14 proven beyond a reasonable doubt.
On January 25, 1994, District Judge Thomas F. Hogan sentenced Mr. xxxxxxx to three concurrent terms of life without parole on the three counts for which he was convicted, to a term of supervised release of five years on each count, and ordered that he pay a special assessment in the amount of $150.00. App. 6. On December 13, 1993, the district court entered an Order of Forfeiture authorizing the United States to seize $1,000,000 in United States currency. App. ___.
Mr. xxxxxxx seeks review of the sufficiency of the evidence to support the CCE conviction, the admission of other-crimes evidence pursuant to Federal Rules of Evidence (Fed.R.Evid.) 404(b), the admission of hearsay statements contained in Western Union money orders, the exclusion of a defense expert witness, and the limitation of the cross examination of a crucial government witness. Additionally, he challenges the sentences imposed in this case on several grounds, based upon the disparate treatment between cocaine hydrochloride and cocaine base, and the sentence imposed on the CCE count on ex post facto grounds. None of the challenged rulings has been reported.
III. RELATED CASES:
The appeal of defendant Dennis xxxxxxx, who was jointly indicted with Mr. xxxxxxx, is pending before this court, which has ordered that these appeals be consolidated.
TABLE OF CONTENTS
TABLE OF AUTHORITIES vi
ISSUES PRESENTED 1
STATUTES AND REGULATIONS 3
STATEMENT OF THE CASE 3
(i)Course of Proceedings and Disposition Below 3
(ii)Post-Trial Proceedings 4
(iii)The Sentence 4
STATEMENT OF FACTS 5
SUMMARY OF ARGUMENT 8
I.THE EVIDENCE WAS INSUFFICIENT TO CONVICT MR. xxxxxxx OF ENGAGING IN A CONTINUING CRIMINAL ENTERPRISE BECAUSE THE GOVERNMENT DID NOT PROVE THAT HE MANAGED, SUPERVISED OR ORGANIZED FIVE OR MORE PERSONS8
A.Standard of review 9
B.The government's description of the enterprise9
C.The insufficiency of the evidence 12
II.THE COURT ERRED IN ADMITTING THE METHAMPHETAMINE EVIDENCE, INITIALLY, AS EVIDENCE CONNECTED TO THE CHARGED CONSPIRACY, AND ULTIMATELY, UNDER FED.R.EVID. 404(b); IN FAILING TO CONTROL THE MODE OF PRESENTATION OF THE EVIDENCE; AND IN FAILING TO GIVE AN IMMEDIATE LIMITING INSTRUCTION 15
A.The standard of review 16
B.The challenged evidence 16
C.The district court's decision to admit the methamphetamine evidence 18
D.The challenged evidence was not probative of an intent to commit the charged offenses or of a specific plan to commit a series of offenses that were connected to each other. 22
(2)Specific plan to commit a series of crimes connected to each other. 27
E.Even if arguably relevant, the probative value of the methamphetamine evidence was outweighed by its prejudicial impact. 29
F.It was error to admit the methamphetamine evidence without an immediate cautionary instruction as to the limited basis for its admission. 31
G.The prejudice to Mr. xxxxxxx
III.THE COURT ERRED IN ADMITTING INTO EVIDENCE MONEY TRANSFER RECORDS THAT CONTAINED HEARSAY AND DID NOT CONSTITUTE CO-CONSPIRATOR STATEMENTS, IN VIOLATION OF MR. xxxxxxx'S RIGHTS UNDER THE CONFRONTATION CLAUSE. 35
A.Standard of review 36
B.The court's variable theories of admissibility 36
C.The admission of the money orders violated the Confrontation Clause. 39
D.Because it was not the standard practice of Western Union to verify the identity of the recipient of money orders, the Western Union records were not admissible as business records. 40
E.The money orders were not co-conspirator statements in furtherance of the conspiracy and should not have been admitted on that basis. 42
F.The erroneous admission of the money transfer records prejudiced Mr. xxxxxxx. 45
IV.THE COURT ERRED WHEN IT REFUSED TO PERMIT A LINGUISTICS EXPERT TO TESTIFY AS AN EXPERT WITNESS AND EXPLAIN CHARTS HE HAD PREPARED, BUT INSTEAD PERMITTED HIM TO TESTIFY AS A LAY WITNESS AND INTRODUCE THE CHARTS INTO EVIDENCE WITHOUT EXPLANATION. 46
A.The standard of review 46
B.The proffered expert testimony47
C.The exclusion of Dr. Shuy's expert testimony constituted an abuse of discretion by the trial court. 48
V.THE COURT ERRED IN LIMITING THE CROSS-EXAMINATION OF TOM xxxxxxx, A CRUCIAL GOVERNMENT WITNESS, BY REFUSING TO PERMIT APPELLANT TO CONFRONT HIM WITH AND QUESTION HIM ABOUT EXCERPTED PORTIONS OF VIDEOTAPES THAT IMPEACHED HIS TRIAL TESTIMONY AND DEMONSTRATED HIS BIAS. 54
A.Standard of review. 54
B.Tom xxxxxxx's testimony. 54
C.The proposed cross-examination. 56
D.The district court erroneously prohibited the proposed cross-examination. 58
VI.THE COURT'S PLAIN ERROR IN FAILING TO INSTRUCT THE JURY THAT MR. xxxxxxx COULD BE CONVICTED UNDER 21 U.S.C. § 848(b) ONLY IF HE FUNCTIONED AS A MANAGER, SUPERVISOR OR ORGANIZER OF THE ALLEGED ENTERPRISE AFTER THE EFFECTIVE DATE OF THE STATUTE VIOLATED THE EX POST FACTO CLAUSE. 63
A.The standard of review. 63
B.The ex post facto violation. 64
C.Violation of the ex post facto clause constituted plain error. 68
Certificate of Service
TABLE OF AUTHORITIES
Anderson v. United States, 417 U.S. 211 (1974) 39
Bouie v. City of Columbia, 378 U.S. 347 (1964) 64
Bourjaily v. United States, 443 U.S. 171 (1987) 39, 43, 44
Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) 53
Calder v. Bull, 3 Dall. 386 (1978)64
Chapman v. California, 386 U.S. 18 (1967) 40
Chambers v. Mississippi, 410 U.S. 295 (1973) 58
Collins v. Youngblood, 110 S. Ct. 2715 (1990) 65
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
113 S. Ct. 2786 (1993) 49, 67
Davis v. Alaska, 415 U.S. 308 (1974) 58
Delaware v. Fensterer, 474 U.S. 18 (1985) 58
Delaware v. Van Arsdall, 475 U.S. 673 (1986) 60, 61
Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) 28
Idaho v. Wright, 110 S. Ct. 3139 (1990) 40
Jackson v. Virginia, 443 U.S. 307 (1979) 9
Michelson v. United States, 335 U.S. 469 (1948) 33
Miller v. Florida, 482 U.S. 423 (1987) 64, 65, 67, 68
Ohio v. Roberts, 448 U.S. 56 (1980) 39, 41
Olden v. Kentucky, 488 U.S. 229 (1988) 61
United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990) 12
United States v. Anderson, 851 F.2d 384 (D.C. Cir. 1988) 25, 61
United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989) 13
United States v. Apodaca, 843 F.2d 421 (10th Cir.),
cert. denied, 488 U.S. 932 (1988) 14
United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992) 47
United States v. Brawner, 32 F.3d 602 181 (1987) 32
United States v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981) 39
United States v. Burkley, 591 F.2d 903 (D. C. Cir. 1978),
cert. denied, 440 U.S. 966 (1979) 28
United States v. Bussey, 432 F.2d 1330 (D.C. Cir. 1970) 33
United States v. Castro, 972 F.2d 1107 (9th Cir. 1992),
cert.denied, 113 S. Ct. 1350 (1993) 66
United States v. Chase 838 F.2d 743 (5th Cir.),
cert. denied, 486 U.S. 1035 (1988) 12
United States v. Clarke, 24 F.3d 257 (D.C. Cir. 1994) 25, 36
United States v. Copelin, 996 F.2d 379 (D.C. Cir. 1993) 31, 35
United States v. Dale, 991 F.2d 819 (D.C. Cir.),
cert. denied, 114 S.Ct. 650 (1993) 64
United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985) 33, 34
United States v. Devine, 787 F.2d 1086 (7th Cir. 1986),
cert denied, 479 United States 848 (1986) 53
United States v. Downing, 753 F.2d 1224 (3rd Cir 1985) 52
United States v. Delgado, 4 F.3d 780 (9th Cir. 1993) 13
United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980),
cert. denied, 450 U.S. 933 (1981) 30
United States v. Derr, 990 F.2d 1330 (D.C. Cir. 1993) 61
United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992) 32, 33
United States v. Edelman, 873 F.2d 791 (5th Cir. 1989) 53
United States v. Evans, 910 F.2d 790 (11th Cir. 1990) 53
United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980) 30
United States v. Foster, 986 F.2d 541 (D.C. Cir. 1993) 59
United States v. Fountain, 1 F.3d 656 (6th Cir. 1993) 59
United States v. Garrett, 542 F.2d 23 (6th Cir, 1976)59
United States v. Giry, 818 F.2d 120 (1st Cir.),
cert. denied, 484 U.S. 855 (1987)12
United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981)62, 65
United States v. Harley, 990 F.2d 1340 (D.C. Cir.),
cert. denied, 114 S. Ct. 236 (1993) 46
United States v. Hodge, 19 F.3d 51 (D.C. Cir. 1994)62
United States v. Houser, 746 F.2d 55 (D.C. Cir. 1984)39, 40
United States v. Jeffers, 432 U.S. 137 (1977)12
United States v. Jenkins, 904 F.2d 549 (10th Cir. 1990)11, 14
United States v. Jerome, 942 F.2d 1328 (9th Cir. 1991)11
United States v. Johnson, 970 F.2d 907 (D. C. Cir. 1992)16, 28
United States v. Kupau, 781 F.2d 740 (9th Cir.,
cert. denied, 479 U.S. 823 (1986) 53
United States v. Lam Kwong-Wah, 924 F.2d 298 (D.C. Cir. 1991)
cert. denied, 113 S. Ct. 287 (1992)65, 68
United States v. Lavelle, 751 F.2d 1266 (D.C. Cir. 1985) 33
United States v. Lewis, 693 F.2d 189 (D.C. Cir. 1982) 27, 32
United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980)41
United States v. Lueth, 807 F.2d 719 (8th Cir. 1986)10
United States v. Manner, 887 F.2d 317 (D.C. Cir. 1989)25
United States v. Martinez, 3 F.3d 1191 (8th Cir.),
cert. denied, 114 S. Ct. 734 (1993)
United States v. Maske, 840 F. Supp. 151 8
United States v. McClain, 440 F.2d 241 (D. C. Cir. 1971) 32
United States v. Miller, 895 F.2d 1431 (D.C. Cir. 1990)25
United States v. Nicely, 922 F.2d 850 (D.C. Cir. 1991) 24, 29
United States v. Onumonu, 967 F.2d 782 (2d Cir. 1992)39, 50, 51
United States v Olano, 113 S. Ct.1770 (1993)68, 69
United States v. Patrick, 959 F.2d 991
(D.C. Cir. 1992)12, 37, 41, 42
United States v. Patrick, 965 F.2d 1390 (6th Cir.),
cert. denied, 113 U.S. 376 (1992)11
United States v. Possick, 849 F.2d 332 (8th Cir. 1988)13
United States v. Pryce, 938 F.2d 1343 (D.C. Cir. 1991),
cert. denied, 1125 S. Ct. 1979 (1992)59
United States v. Pugh, 436 F.2d 222 (D.C. Cir. 1970)59
United States v. Rhodes, 886 F.2d 375 (D.C. Cir. 1989)29
United States v. Robinson, 832 F.2d 366 (7th Cir. 1987),
cert. denied, 486 U.S. 1010 (1988)61
United States v. Rogers, 918 F.2d 207 (D.C. Cir. 1990)25
United States v. Shelton, 628 F.2d 54 (D.C. Cir. 1980)33
United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993)16
United States v. Stock, 948 F.2d 1299 (D.C. Cir 1991)58, 59
United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988)
cert. denied, 488 U.S. 867 (1988)45, 60
United States v. Thomas (Kevin Lamont), No. 92-32898
United States v. Thomas (Dwayne Antonio), No. 93-31538
United States v. Thorne, 997 F.2d 1504 (D.C. Cir.),
cert. denied, 114 S. Ct. 568 (1993)54
United States v. Torres, 901 F.2d 205 (2nd Cir. 1990),
cert. denied, 948 U.S. 906 (1991)66, 67, 69, 70
United States v. Ward, 1994 U.S. App. LEXIS 25640,
(6th Cir. September 19, 1994)12, 13
United States v. Warren (Wilbert B.), 93-3628
United States v. Washington, 952 F.2d 1402 (D.C. Cir. 1991)43
United States v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) 25
United States v. Weisz, 718 F.2d 413 (D.C. Cir. 1983)43
United States v. West, 670 F.2d 675 (7th Cir. 1982)43
United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993)9
Weaver v. Graham, 450 U.S. 24 (1981)65
18 U.S.C. §3231 3
21 U.S.C. §§ 841(a) and 841(b)(1)(A)(3) ix
21 U.S.C. section 848(a)(1986)(current version at 21
U.S.C. section 848(a) (1988) passim
28 U.S.C. § 12913
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, §1253, 100
Fed. R. Crim. P. 52(b). . . . . . . . . . . . . . . . . . . . . 69
Fed. R. Evid. 104(a)
Fed. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . . 49
Fed. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . 29
Fed. R. Evid. 61162
Fed. R. Evid. 70249
Fed. R. Evid. 404(b)passim
Fed. R.Evid. 801(d)(2)(E)passim
Fed. R.Evid. 803(6)passim
Fed. R. Evid. 80541
UNITED STATES CONSTITUTIION
Article I, § 9 Cl. 364
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
xxxxxxx B. xxxxxxx,
BRIEF FOR APPELLANT
I. Whether the evidence was sufficient to support the conviction on Count II of the indictment, engaging in a continuing criminal enterprise;
II. Whether the court erred in admitting other-crimes evidence:
(A) initially, as evidence of conduct in furtherance of the charged cocaine conspiracy;
(B) and ultimately, as probative of the intent of appellant to commit the charged offenses or of a specific plan to commit a series of crimes that were connected to each other;
(C) by failing to control the mode of presentation of the evidence; and
(D) without an immediate cautionary instruction as to the basis for the admission of the evidence.
III. Whether the court erred in admitting statements contained in Western Union money transfer records because:
(A) the statements were hearsay, and did not qualify as business records under FRE 803(6);
(B) the statements were not co-conspirator statements, as defined by FRE 801(d)(2)(E),
(B) and, the statements were not in furtherance of the conspiracy charged in the indictment.
IV. Whether the court erred in excluding the testimony of Dr. Roger Shuy, a linguistics expert retained by counsel for Mr. xxxxxxx to analyze over 100 hours of audiotapes, on the grounds that the testimony would not be helpful to the jury and would tend to confuse the jury.
V. Whether the court erred in limiting the cross-examination of Tom xxxxxxx, a crucial government witness, by refusing to permit counsel for Mr. xxxxxxx to confront him with and question him about excerpted portions of videotapes that impeached his trial testimony and demonstrated his bias.
VI. Whether the sentences imposed upon Mr. xxxxxxx were violative of the United States Constitution, in that
(A) the sentence imposed on the CCE count violated the ex post facto provision;
(B) and, the sentences for offenses involving cocaine base were much more harsh than sentences for similar offenses involving cocaine hydrochloride, contrary to his rights to equal protection of the law, due process of law, and to be free from cruel and unusual punishment.
STATUTES AND REGULATIONS
Pertinent statutes and rules are set forth in the addendum to this brief.
This court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.
STATEMENT OF THE CASE
(i) Course of Proceedings and Disposition Below
On or about May 20, 1992, a federal grand jury returned a one-count indictment charging xxxxxxx B. xxxxxxx with conspiracy to distribute in excess of 50 grams of cocaine base. On or about November 4, 1992, a nine-count superseding indictment was returned against Mr. xxxxxxx and Dennis L. xxxxxxx. Count One charged both of them with conspiracy to distribute and possess with the intention to distribute in excess of 5 kilograms of cocaine and in excess of 50 grams of cocaine base. Count II charged Mr. xxxxxxx with engaging in a continuing criminal enterprise. While Counts Three through Eight charged him with six counts of distribution of more than 50 grams of cocaine base, Mr. xxxxxxx was charged only in Count VI. Count Nine sought to forfeit cash proceeds of $2,000,000. On May 11, 1993, at the request of the government, the district court dismissed Counts Three through Seven of the indictment.
The final retyped indictment contained four counts and charged Mr. xxxxxxx and Mr. xxxxxxx in Count One with a drug conspiracy, and Mr. xxxxxxx alone in Counts Two and Three with engaging in a continuing criminal enterprise and with distributing in excess of 50 grams of cocaine base, respectively. Count IV sought the forfeiture of $2,000,000.
Trial commenced before the district court on May 3, 1993. A jury was empaneled on May 11, 1993. On August 18, 1993, the jury returned verdicts of guilty on all counts.
(ii) Post-Trial Proceedings
Subsequent to the verdict, Mr. xxxxxxx filed three motions for new trial. The first motion for new trial, filed on September 20, 1993, in pertinent part, renewed his objection to the introduction of other crimes evidence and to the court's receipt of that evidence without giving the jury an immediate cautionary instruction.
On December 15, 1993, the district court denied the motion for new trial based upon the admission of other crimes evidence. 12/15/93 Tr. 28-29. On January 5, 1994, the court issued a Memorandum Opinion detailing the reasons for the denial. App. ___. A written Order followed on January 10, 1994. App. ___.
(iii) The Sentence
On January 14, 1994, Mr. xxxxxxx filed a Memorandum in Aid of Sentencing raising consitutional challenges to the disparate sentences to which he was subjected by virtue of convictions for offenses involving cocaine base rather than cocaine hydrochloride. He also challenged the imposition of a sentence of life without parole on the CCE count as violative of the proscription against ex post facto laws. The court, after hearing argument on those challenges, found no constitutional infirmities in the sentencing scheme, and imposed sentence. 1/25/94 Tr. 21-27.
STATEMENT OF FACTS
Mr. xxxxxxx was charged in a superseding indictment with conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base, with engaging in a continuing criminal enterprise, and with related drug offenses. In addition, forfeiture of $1,000,000 was sought against him.
The government presented evidence that for nearly seven years, Mr. xxxxxxx distributed cocaine and cocaine base to various persons in several different cities by "fronting" the cocaine, and telling the buyers how much money to bring him once the drugs were sold. Mr. xxxxxxx made hundreds of thousands of dollars from these drugs activities and he moved some of that money using Western Union money transfers.
While in San Clemente, in the spring of 1992, Mr. xxxxxxx was involved with Khalifeh xxxxxxx in methamphetamine dealing. At the same time, he was trying to import several kilograms of cocaine from Mexico.
The defense introduced evidence that Mr. xxxxxxx tried to "scam" money from several of the prosecution witnesses by promising them cocaine, but that he did not deliver on those promises. The methamphetamine deal, ultimately admitted as other crimes evidence, was orchestrated by xxxxxxx, who got most of the proceeds from the methamphetamine sale, and who him to do the deal to help him pay his attorney's fees.
Mr. xxxxxxx earned money in legitimate businesses, including a bail bonds business, a restaurant, a record company and a sportswear concern. His economic circumstances were so desperate in 1991 and 1992 that his family was dependent on public assistance.
SUMMARY OF ARGUMENT
Mr. xxxxxxx was charged with a cocaine conspiracy, with engaging in a continuing criminal enterprise to distribute cocaine, and with the distribution of cocaine base.
I. The evidence was insufficient to support the CCE conviction. 21 U.S.C. § 848 required proof that Mr. xxxxxxx managed, supervised or organized five or more persons in a continuing criminal enterprise. The government's evidence was that he delivered cocaine and cocaine base to various persons on consignment. Proof that he "fronted" cocaine was insufficient to establish that Mr. xxxxxxx managed, supervised or organized five persons.
II. The district court admitted evidence of methamphetamine deals by Mr. xxxxxxx and a government witness. Initially, the court admitted the evidence as proof of the charged cocaine conspiracy. However, when the government failed to prove that the methamhetamine deals funded the conspiracy, the court admitted the evidence, pursuant to Fed.R.Evid. 404(b), as probative of whether Mr. xxxxxxx had a specific plan to commit a series of crimes that were connected to each other and whether he intended to commit the charged offenses. The jury was not given an immediate cautionary instruction about the ways in which the other-crimes evidence could be used. The other-crimes evidence was inadmissible because the methamphetamine deals were not probative ofintent or of a specific plan to commit a series of crimes connected to each other. It was error to admit the other crimes evidence without an immediate cautionary instruction.
III. The court admitted numerous Western Union money orders that were not admissible as business records because the identity of the sender and recipient could not be verified and they were not connected to the charged offenses. The money orders did not qualify as statements by co-conspirators because there was no proof of the identity of the senders or recipients and no showing that the money orders were in furtherance of the charged conspiracy.
IV. The court erroneously excluded the expert testimony of Dr. Roger Shuy, a linguist. Dr. Shuy's expert testimony was essential to the defense. He had analyzed 100 audiotapes of conversations between Mr. xxxxxxx and various cooperating witnesses, and had prepared charts reflecting his analysis of the tapes. The expert's proffered testimony was about an area of expertise which was not shared by the average juror, and would have helped the jury decide whether to credit the government or Mr. xxxxxxx's version of the taped conversations.
V. The court precluded Mr. xxxxxxx from cross-examining Tom xxxxxxx, a crucial government witness, about videotapes made by the Drug Enforcement Agency (DEA) which would have squarely contradicted his trial testimony and revealed his bias and self-interest.
VI. The sentence imposed upon Mr. xxxxxxx on the CCE conviction violated the ex post facto provision of the United States Constitution. Appellant was convicted under 21 U.S.C. § 848(b), the "super kingpin" statute, and was sentenced to life in prison without the possibility of parole. Congress enacted the super kingpin provision on October 27, 1986. The district court's jury instruction on the CCE offense permitted the jury to convict Mr. xxxxxxx for conduct occurring before the enactment of the statute.
I. THE EVIDENCE WAS INSUFFICIENT TO CONVICT
MR. xxxxxxx OF ENGAGING IN A CONTINUING
CRIMINAL ENTERPRISE BECAUSE THE GOVERNMENT
DID NOT PROVE THAT HE MANAGED, SUPERVISED
OR ORGANIZED FIVE OR MORE PERSONS.
Taken in its most favorable light, the government's evidence shows that over the course of several years from about 1985 through 1992, Mr. xxxxxxx "fronted" cocaine to various individuals who would then sell the drugs and pay him for them out of the proceeds. In the early years, Mr. xxxxxxx supplied small quantities of cocaine and cocaine base to his college friends to sell. Later, in St. Louis, Missouri, he had a group of customers to whom he sold varying amounts of cocaine on consignment. In Washington, D. C., he had one wholesale customer who purchased several shipments of cocaine base on consignment. The government did not establish that Mr. xxxxxxx exerted any control over these credit purchasers. A. Standard of review.
When reviewing a claim of insufficiency of evidence, the court
considers the evidence in the light most favorable to the government, and determines whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993).
B. The government's description of
According to government witnesses, at the beginning of the conspiracy, Mr. xxxxxxx sold cocaine on and around his college campus or gave cocaine to friends to sell on consignment. Tr. Vol. I, pp. 130-31, 136-37, 140-42.
After Mr. xxxxxxx left college and moved to Sacramento, he and a group of friends worked together to cut and package cocaine, which was then delivered to purchasers on consignment, with Mr. xxxxxxx telling the purchasers how much money to bring back for the cocaine. Tr. Vol. I, pp. 146-51, 155. While one witness testififed that Mr. xxxxxxx had 20 to 30 people working for him in Sacramento, in a hierarchical structure, when the witness described the actual distribution of cocaine, he described sales on a consignment basis to the persons he had termed "workers." Tr. Vol. II, pp. 170, 181-83.
Government witnesses testified that Mr. xxxxxxx relocated to St. Louis in 1988. In St. Louis, he and his associates, some of whom had been involved in the conspiracy in California, worked together to cut and package cocaine for purchasers who would come by, pick up the packages, and agree with Mr. xxxxxxx about how much money to bring him from their sales. Tr. Vol. II, pp. 205-07, 231-32, 236-39, 261-62, 275-76; Vol. III, pp. 380-82; Vol. VI, pp. 995, 998; Mr. xxxxxxx never set any terms or conditions for the persons who purchased on consignment. Tr. Vol. III, p. 383; Vol. VI, pp. 1016-18, 1033; Vol. VII, pp. 1089-90, Vol. XII, pp. 1955-58, 1960-63. Various associates made trips to California to pick up cocaine to be sold on consignment in St. Louis. Tr. Vol. II, pp. 190, 194, 228-30. Tr. Vol. VI, pp. 1045-46, 1053-55; Vol. VII, pp. 1089-90; Vol. XII, pp. 1959-60. Two organizational charts prepared by the government showing persons associated with Mr. xxxxxxx in St. Louis, RW 14 and 15, reflected a hierarchical structure. Tr. Vol. III, pp. 394-96; 399-402. However, the charts were never supported by any testimony other than that Mr. xxxxxxx issued drugs to these various persons on consignment.
According to the goverment, the conspiracy branched out from St. Louis to supply a customer, Calvin Stevens, in Washington, D.C. Stevens received shipments of cocaine base on consignment. Tr. Vol. VIII, pp. 1286, 1289; 1292-93; 1303, 1341, 1369-71; 1432. Mr. xxxxxxx had no role in Stevens' distribution of the cocaine he received.
For some part of the life of the conspiracy, Mr. xxxxxxx worked with a partner who acquired cocaine from El Paso, Texas. Tr. Vol. XV, pp. 2386, 2391, 2397-2405, 2426. Mr. xxxxxxx used a driver to bring cocaine to St. Louis and ferry cash back to El Paso. Tr. Vol. XV, pp. 2392-93.
By the end of the conspiracy, the government's evidence showed only aborted efforts by Mr. xxxxxxx to deal in cocaine. In April and May, 1992, he stayed at a resort hotel in San Clemente, California, owned by the family of Khalifeh xxxxxxx, his friend from high school, and tried to bring some Mexican nationals into the country so that he could acquire cocaine from them. Tr. Vol. XXVI, p. 3793, 3822; Vol. XXVIII, pp. 4036-37. Co-defendant Dennis xxxxxxx was working with Mr. xxxxxxx as a driver during this period. Tr. Vol. XXIII, pp. 3516-18, 3537.
C. The insufficiency of the evidence.
At the close of the government's case and again at the close of all the evidence, the defense moved for judgment of acquittal on the CCE count, on the basis that the government had not proven that Mr. xxxxxxx supervised or managed five or more people. Tr. Vol. XXXV, p. 5296; Vol. L, pp. 7656-57. The district court denied the motions. Tr Vol. XXXV, pp. 5320-22; Vol. L, p. 7659. However, the court observed that rather than showing a "larger, tightly controlled organization," the government's evidence "is a little more conspiracy to distribute cocaine in various places at various times to somewhat loosely organized individuals." Id., p. 7658 (emhasis added).
It is well established that "fronting" cocaine is insufficient to support a finding of a management relationship, because "[f]ronting cocaine, without additional elements of control, is nothing more than a variation on the traditional buyer-seller relationship." United States v. Ward, 1994 U.S. App. LEXIS 25640 (6th Cir. September 19, 1994) (citing United States v. Possick, 849 F.2d 332, 336 (8th Cir. 1988)). In Ward, the court held that merely showing that the purchaser bought drugs from the seller at an agreed-upon price, without proof that the seller set the price the buyer could charge for the drugs or told him to whom to sell, was insufficient to show the control which must be proven under 21 U.S.C. §848.
Similarly, in United States v. Delgado, 4 F.3d 780 (9th Cir. 1993), Delgado's CCE conviction was reversed because the government failed to prove that he in fact managed, supervised or organized the activities of persons to whom he sold cocaine on credit. The court noted that Delgado did not dictate to whom his customers sold drugs, nor the terms on which they did so. Additionally, the customers were free to hire whomever they chose. They did not share their profits with Delgado. Therefore, the court concluded, the requisite relationship of control by Delgado over the persons to whom he sold on consignment was absent. Id. at 785-86.
What the government is required to prove, in a consignment relationship, to supply the element of control required by the CCE statute is demonstrated by United States v. Apodaca, 843 F.2d 421, 426 (10th Cir.), cert. denied, 488 U.S. 932 (1988), where the government was able to show a managerial role through Apodaca's own statements, and through proof that he controlled buyers by limiting their supply of drugs and promising them that he would furnish attorneys and bail money. See also, United States v. Possick, 849 F.2d at 336-37 (in addition to fronting cocaine to a purchaser, Possick instructed the purchaser on collection and payment for the drugs, directed him how to deal with his customers, and beat and threatened him when he did not pay Possick right away); United States v. Jenkins, 904 F.2d 549. 553 (10th Cir.), cert. denied, 498 U.S. 962 (1990) (the court found a managerial relationship between Jenkins and credit buyers because Jenkins used the buyers to store and deliver drugs, threatened them when their payments were late, and dictated to whom they could sell their drugs); United States v. Aguilar, 843 F.2d 155, 157 (3rd Cir.), cert. denied, 488 U.S. 924 (1988); United States v. Jones, 801 F.2d 304, 309-10 (8th Cir. 1986).
None of the factors which caused courts to find a supervisory role in consignment relationships is present in the instant case. Here, taking the evidence in the light most favorable to the government, Mr. xxxxxxx either sold small amounts of cocaine himself or gave cocaine to others and told them how much money he expected to be paid when they had sold the cocaine. There is no showing that he directed the operations of the purchasers or in any way set limits on their autonomy. He set a price for the drugs he issued out, and whatever profit the purchasers could make was up to them.
The government contended that Mr. xxxxxxx ran a drug organization, that he directed the activities of scores of workers in that organization and that through the structure he set up, he distributed substantial quantities of cocaine and cocaine base, earning millions of dollars in the process. However, even taking the evidence in the light most favorable to the government, the "organization" is a creation of the prosecution. In spite of charts showing a hierarchical structure, and the frequent reference by the government and its witnesses to "xxxxxxx's organization," the proof is simply that Mr. xxxxxxx either sold drugs himself, on a small scale, or supplied cocaine to purchasers on consignment. The court's finding that the evidence demonstrated "somewhat loosely organized individuals" aptly describes what the government was able to prove on the CCE count. The government did not prove that Mr. xxxxxxx supervised, managed or organized five or more persons and as a consequence, his conviction on the CCE count
should be reversed.
II. THE COURT ERRED IN ADMITTING THE METHAMPHETAMINE
EVIDENCE, INITIALLY, AS EVIDENCE CONNECTED TO THE
CHARGED CONSPIRACY, AND ULTIMATELY, UNDER FED.R.EVID. 404(b); IN FAILING TO CONTROL THE MODE OF PRESENTATION OF THE EVIDENCE; AND IN FAILING TO GIVE AN IMMEDIATE LIMITING INSTRUCTION.
Because the government misled the court by insisting that its evidence would show that the methamphetamine deals were carried out in order to fund the cocaine conspiracy, the court initially admitted the methamphetamine evidence as conduct in furtherance of the charged conspiracy. However, when it became apparent several days into the testimony about methamphetamine that the government could not link the evidence to the cocaine conspiracy, the court ruled that the evidence could not be admitted on that basis. The court then determined to admit the methamphetamine evidence under Fed.R.Evid. 404(b). By that time the jury had heard seven days of testimony from three witnesses and excerpts from 29 tapes about the methamphetamine deals. No instruction was given as to the limited basis for admitting the evidence until the eighth day after it was first introduced.
A. The standard of review.
The underlying admissibility of other-crimes evidence is reviewed de novo. United States v. Simpson, 992 F.2d 1224, 1229 (D.C. Cir. 1993). Whether the probative value of admissible evidence is outweighed by its prejudicial impact is reviewed for grave abuse of discretion. United States v. Johnson, 970 F.2d 907
(D.C. Cir. 1992).
B. The challenged evidence.
The government called four witnesses who testified about Mr. xxxxxxx's methamphetamine dealings. Khalifeh xxxxxxx, who was a cooperating witness, Sgt. Michael Luebeck, who had arrested xxxxxxx in California, Donald R. Robak, who was the chemist who analyzed the methamphetamine which was sold to an undercover police officer, and the undercover officer, John Thomas. In addition, the government's drug expert, Dwight Rawls, testified about methamphetamine and the manufacturing process involving the precursor ephedrine.
Sgt. Michael Luebeck was the government's first witness regarding the methamphetamine deals. He testified about several conversations concerning methamphetamine which he overheard on the tapes xxxxxxx made. Tr. Vol. XXI, pp. 3241-43, 3247, 3251-52.
xxxxxxx followed Luebeck and explained the methamphetamine deals in great detail. As a part of his cooperation agreements, he tried to "entice xxxxxxx into coming down to do a deal with [him]," using the ruse that he desperately needed money to pay the attorney in his pending California case. Tr. Vol. XXV, pp. 3693, 3695; Vol. XXIX, pp. 4306-08, 4312, 4314-15, Vol. XXX, p. 4425. In several telephone calls in early 1992, Mr. xxxxxxx agreed to bring some methamphetamine to xxxxxxx, which xxxxxxx could then sell for several thousand dollars. However, the methamphetamine was never delivered. Tr. Vol. XXV, pp. 3690-92, 3696, 3699-3700, 3725, 3754. xxxxxxx's plan was to have Mr. xxxxxxx sell the methamphetamine to an undercover police officer. Tr. Vol. XXIX, pp. 4328, 4330. During the spring of 1992, Mr. xxxxxxx made several trips to a resort hotel owned by xxxxxxx's father in San Clemente, California. While in San Clemente, he got two boxes of ephedrine, which he planned to sell to an associate to whom he had sold ephedrine previously, but that sale fell through. Tr. Vol. XXIII, pp. 3560-61; Vol. XXVI, pp. 3822-23, 3856-57, 3867; Vol. XXIX, pp. 4333, 4335.
Even before the sale fell through, xxxxxxx approached his own methamphetamine supplier, trying to sell him the ephedrine in return for finished methamphetamine and cash. Tr. Vol. XXVI, p. 3823, 3833; Vol. XXIX, p. 4335. xxxxxxx owed the supplier approximately $80,000 and he negotiated a $10,000 reduction in that debt as part of the payment for the ephedrine. Tr. Vol. XXV, pp. 3668-69. xxxxxxx and the police planned to have Mr. xxxxxxx sell the finished methamphetamine to an undercover police officer. Tr. Vol. XXVI, p. 3870.
By the time Mr. xxxxxxx's sale fell through, xxxxxxx had everything in place to sell the ephedrine to his own supplier. Tr. Vol. XXVI, p. 3823. Dennis xxxxxxx took the ephedrine to the supplier, and returned with $5,000 in cash and one pound of finished methamphetamine. Tr. Vol. XXVI, p. 3823-24; Vol. XXVII, p. 3964. xxxxxxx then delivered the pound of methamphetamine to a "buyer," who was really an undercover officer posing as xxxxxxx's former roommate, and brought xxxxxxx and Mr. xxxxxxx $10,000 cash. Tr. Vol. XXVII, p. 3979. From the $10,000 in government funds, xxxxxxx received $5500. His family received a substantial sum of the remainder, to pay Mr. xxxxxxx's expenses in staying at the hotel, and to repay a loan from xxxxxxx's uncle for the initial purchase of the ephedrine. Tr. Vol. XXVII, pp. 3980-81, 3985, 4000-01.
C. The district court's decision to
admit the methamphetamine evidence.
Before trial, the government filed a notice seeking to admit evidence that (1) Mr. xxxxxxx received a large quantity of ephedrine tablets, in April of 1992, (2) he arranged the exchange of those tablets for a pound of finished methamphetamine and cash, and (3) he and co-defendant Dennis xxxxxxx distributed the pound of methamphetamine to an undercover police officer, in exchange for $10,000 cash. The government argued that the evidence was probative of intent, knowledge, and absence of mistake. App.___.
The defense responded that the proffered evidence was inadmissible as 404(b) evidence because the methamphetamine activity was entirely unrelated to the events charged, and that under Fed. R. Evid. 403, the probative value of the evidence was substantially outweighed by its prejudicial impact. App. ___.
In its reply, the government argued for the first time that the 404(b) notice had been filed merely as a precaution, and that the evidence was actually intrinsically connected to the cocaine conspiracy since the methamphetamine deals were carried out in order to buy cocaine. Alternatively, the government argued, the proffered evidence was admissible to prove intent or as part of a common scheme or plan under Fed.R.Evid. 404(b). App.___. In its pretrial ruling, the court determined to admit the evidence as proof of the charged cocaine conspiracy. 5/3/93 Tr. 85-86. During trial, in response to renewed objections, the government repeatedly insisted that it would prove that the methamphetamine deals were to fund the cocaine conspiracy and that therefore the methamphetamine evidence was not really 404(b) evidence. Alternatively, the government argued, the evidence was admissible as other crimes evidence. Tr. Vol. XX, pp. 3185-3189; Vol. XXI, pp. 3205-07.
The district court urged the government to choose the basis on which it was offering the evidence, expressing the concern that the jury was entitled to a limiting instruction if the evidence was being admitted under Fed.R.Evid. 404(b):
If [the proffered evidence] is 404(b), then I think
the defendants are entitled clearly to a limiting
instruction. So I think the government has got to
decide how they want to have this evidence come in
and live with their choice. The only possible
other way of handling it would be if the Court is
convinced it could be primary evidence, then after
hearing the evidence, decided it is not, then
accepts it as 404(b) evidence or strikes it,
and we see what the consequences of that are,
which could be a problem.
Tr. Vol. XXI, pp. 3206 (emphasis added).
In spite of the court's warning to the government that it would have to live with its choice "through[out] the appellate process," id., p. 3206, the government reasserted its position that because the methamphetamine activity supplied the conspiracy with needed funds, it was evidence of the conspiracy itself. Id., pp. 3206-07. Based upon the government's proffer, the district court made a provisional ruling to admit the methamphetamine deals as conduct in furtherance of the conspiracy. Id., pp. 3218-21.
xxxxxxx's direct examination was interrupted to permit the government to call the chemist who analyzed the methamphetamine. At that time, the defense renewed its motion to exclude the evidence, reiterating its position that there had been no showing that the methamphetamine deals were connected to the cocaine conspiracy. Tr. Vol. XXVIII, pp. 4053-54.
The court observed that "I did not hear testimony from Mr. xxxxxxx that they were trying to fund the cocaine deal in any fashion." (Id. at 4055). Once again, however, the government insisted that the two events, Mr. xxxxxxx's efforts to acquire cocaine and his methamphetamine dealings, were "very genuinely tied together" and that it was "very artificial to try to separate them out and say that there's two separate things going on." Id., p. 4056. The court responded that the evidence about those two events was "segregable," and that indeed the government had already separated the methamphetamine evidence from the evidence of the cocaine conspiracy. Id, p. 4057. The court added:
Well, I must say, listening to the evidence the past
two days, I was concerned with the theory the
government proffered and which I had ruled originally
could be admitted as substantive evidence of a
conspiracy, that these deals in the area of speed that
they talked about that Mr. xxxxxxx helped arrange was
really part and parcel of the cocaine conspiracy
because it was meant to fund the cocaine conspiracy,
and I did not see any evidence of that to date, except
the argument by counsel now that, well, it paid his
hotel bill for a couple of thousand dollars.
But to let all that evidence in as substantive
evidence of a conspiracy, it seems to me a
separate transaction that he was engaged in,
apart from this cocaine ring.
Id., p. 4058.
The court determined to withhold ruling on whether the government could connect the methamphetamine evidence to the cocaine conspiracy, as it had repeately promised to do, until the close of xxxxxxx's direct examination, but pointed out that the government had not proven a connection at that point:
Well, what I would like, if I am going to decide to admit it, if I do admit it, if I don't strike it, if I admit it at all, if it comes in as 404(b), I do want to apprise the jury at the reasonable, earliest time of the import of the evidence we've been listening to for three days, the greater part. It does concern the court because I really anticipated on the government's argument when we started this trial, that there was some kind of evidence that these moneys went to buy some cocaine.
GOVERNMENT: And there will be that.
COURT: And I haven't heard that....
COURT: Well, I will withhold ruling at this time,
but I do have concerns about this evidence and its
use without some proper instruction to the jury as to
the proper way to consider it at all. And I think the government might have been better advised to just play
the cocaine tapes with Mr. xxxxxxx.
Id., pp. 4063-64.
At the close of xxxxxxx's direct examination, the defense moved to strike the methamphetamine testimony and for a mistrial, arguing that the government had not demonstrated how the methamphetamine deal supported the cocaine conspiracy and that the defendants would be substantially prejudiced by the admission of the evidence under Fed.R.Evid.404(b) because the jury was not instructed at the time the evidence was presented what limited use to make of the evidence. Tr. Vol. XXIX, pp. 4165-4168.
The court agreed that the government had failed to show the promised connection between the methamphetamine dealings and the cocaine conspiracy. Nonetheless, the court ruled that the evidence was "typical 404(b) evidence" showing intent and knowledge, that the probative value of the evidence was not substantially outweighed by its prejudicial impact, and that a limiting instruction would cure any prejudice. Id., pp. 4179-81. Defense motions to strike and for a mistrial were denied. Id., p. 4180.
On the eighth day after the first testimony involving methamphetamine was presented, the court finally instructed the jury that the evidence of the methamphetamine deal was being admitted to show the defendants' intent, knowledge, and lack of mistake and for no other purpose. Id., pp. 4197-98.
D. The challenged evidence was not probative
of an intent to commit the charged offenses
or of a specific plan to commit a series
of offenses that were connected to each other. (1) Intent.
In its final instructions, the court stated that the evidence was being admitted as probative of appellant's intent to commit the charged offenses or of a specific plan to commit a series of crimes that were connected to each other. Tr. Vol. LI, p. 7875.
The methamphetamine dealings were not sufficiently similar to the charged offenses to be probative on the issue of intent. The most significant dissimilarity was the level of governmental involvement in the methamphatamine deals. In fact, xxxxxxx's involvement in the methamphetamine deals was so crucial and so pervasive that the district court correctly concluded that "xxxxxxx put this deal together":
. . . [T]here's no question Mr. xxxxxxx obtained the
source for the methamphetamine, a fellow named Mike
up in northern California, to complete the sale of
that deal that had been completed earlier by Mr.
xxxxxxx with his individual, who was just selling
the pills originally, I believe, to Mr. xxxxxxx,
and that Mr. xxxxxxx essentially put the deal
together with Mr. xxxxxxx's assistance but intro-
duced Mr. xxxxxxx to Mike, although there was some
discussion of Mr. xxxxxxx, he had met him previously
or at least was responsible previously for sending him
some other drugs, but that it was Mr. xxxxxxx's deal
primarily. . .
Again, we do have substantial conduct by Mr. xxxxxxx attempting to get Mr. xxxxxxx down to
San Clemente to deal with him, originally in cocaine
and then on a parallel track, on this methamphetamine
There's no question that he was heavily
engaged in that process, from all the tapes and phone
calls that were recorded as well. That it was his
dealer that he found and it was -- that is, the
supplier and that he also found the purchaser,
which was the undercover agent.
There is some evidence that Mr. xxxxxxx was also dealing with
Mr. xxxxxxx in attempting to sell it there and
had made arrangements with Mr. xxxxxxx to get the
raw product earlier, but had used some money
borrowed from Khalifeh's family apparently to pay
for some of this....
I think Mr. xxxxxxx, in a fair reading of the evidence, clearly put together this arrangement for the sale of this methamphetamine. Mr. xxxxxxx was otherwise trying to make a deal, but clearly, Mr. xxxxxxx put this deal together.
Tr. Vol. L, pp. 7622, 7642-44.
Given xxxxxxx's managerial role in the methamphetamine deals, this other crimes evidence proves nothing about Mr. xxxxxxx's intent to engage in a criminal enterprise, to participate in a conspiracy, or to distribute cocaine base.
This court has often held that a threshold requirement for other crimes evidence to be relevant to show intent is that the two sets of offenses must be sufficiently related so that the uncharged act illuminates the intent of the actor in the charged conduct. In United States v. Nicely, 922 F.2d 850 (D.C. Cir. 1991), the court reversed the convictions on counts charging separate conspiracies, finding that the conspiracies were improperly joined. The government argued that even if the two conspiracies were separate and unconnected, evidence of each would be admissible at a trial of the other under Fed.R.Evid. 404(b), and that therefore the joinder was not prejudicial. However, the court concluded that since the two conspiracies were not substantially alike, the admission of one conspiracy to show intent or knowledge with regard to the other was erroneous. The court held that "[W]hen a prior criminal act is relied upon to prove intent or knowledge, similarity between the two events must be shown to establish the threshold requirement of relevance." Id. at 857 (citations omitted).
In cases in which this court has approved the admission of other-crimes evidence to show intent or knowledge, the charged and uncharged offenses have been sufficiently similar so that relevance is apparent. See United States v. Clarke, 24 F.3d 257, 265 (D.C. Cir. 1994)(testimony that the defendants had engaged in 25 previous cocaine sales very similar to the charged offense was admissible to show that the cocaine they possessed was meant to be distributed and that they were working in concert); United States v. Rogers, 918 F.2d 207 (D.C. Cir. 1990)(evidence that defendant had recently pled guilty to possession of crack cocaine after throwing nine bags of crack out of an apartment window was relevant to show that another bag containing crack cocaine, which he threw into a sewer as police approached, belonged to him); United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986)(the court correctly admitted evidence of defendant's prior attempts to thwart an investigation since it was that same investigation that prompted him to pay a bribe in the case on trial); United States v. Lavelle, 751 F.2d 1266 (D.C. Cir. 1985) (evidence of defendant's prior false statements was admissible in her trial for perjury and obstruction of justice).
In this case, in its pretrial ruling on the admissibility of the methamphetamine evidence, the district court relied upon United States v. Miller, 895 F.2d 1431, 1435-37 (D.C. Cir. 1990); United States v. Watson, 894 F.2d 1345, 1349 (D.C. Cir. 1990); United States v. Manner, 887 F.2d 317, 321-23 (D.C. Cir. 1989); and United States v. Anderson, 881 F.2d 1128, 1142 (D.C. Cir. 1989). Tr. XXIX, pp. 4180-81. However, because none of these cases involves uncharged acts which are unrelated to the charged offenses, they are inapposite. In Miller, the court upheld the admission of other crimes evidence to show a witness' state of mind, an issue raised by defendant Miller's trial strategy. In Watson, the court upheld the admission of evidence that Watson, who was charged with possession with intent to distribute a kilogram of cocaine found in his train compartment, had negotiated the sale of 4 kilograms of cocaine to an informant a couple of months after being released from jail in the case in which he was on trial. In Manner, defendant Leeper was arrested when his fingerprints were recovered from bags of crack cocaine found in a car occupied by two co-defendants. The court found arguably relevant evidence that ten weeks after his arrest, Leeper had made a sale of crack cocaine to an undercover officer. In Anderson, defendant xxxxxxx was charged with possession with intent to distribute crack cocaine and with weapons offenses. The court upheld the introduction of evidence that on two earlier occasions, xxxxxxx was seen selling drugs from the same apartment where he was arrested. None of these cases support the admission of the methamphetamine evidence in this case.
In the instant case, the methamphetamine dealings were instigated and orchestrated by a government agent, Khalifeh xxxxxxx. He admitted that he repeatedly prevailed upon Mr. xxxxxxx, his friend from high school, to set up some kind of drug deal, pretending that he needed money to pay his attorney fees. He arranged the methamphetamine sale to the undercover officer. His uncle provided some of the money for the ephedrine, he arranged with his supplier to process the ephedrine for cash and finished methamphetamine, he first struck a deal with the supplier that would have netted him a $10,000 reduction in an $80,000 debt, and even when those terms were renegotiated, he and his family got the lion's share of the $10,000 which the undercover police officer paid for the methamphetamine. Nothing about Mr. xxxxxxx's involvement in xxxxxxx's dealings illuminates his intent to commit the charged offenses.
(2) Specific plan to commit a series of crimes
connected to each other.
The court admitted the methamphetamine evidence on an alternative ground, that the jury could find from the evidence a specific plan to commit a series of crimes connected to each other and thereby determine whether "the defendants were the persons who committed the offenses charged in the indictment." Tr. Vol. LI, p. 7875. The defense objected to that section of the court's instruction, on the grounds that there was no evidence of a common scheme or plan and that the language would confuse the jury. The government argued that the language was appropriate because it permitted the jury to find that the methamphetamine evidence was connected with the other criminal narcotics activity. Tr. Vol. L, p. 7651.
Fed.R.Evid. 404(b) makes other-crimes evidence admissible to prove a plan or scheme. However, the cases in which this court
has approved the introduction of other crimes evidence to show a common scheme or plan fall into two categories. In United States v. Lewis, 693 F.2d 189, 193 (D.C. Cir. 1982), the defendant was charged with unlawfully transporting falsely made, altered or forged money orders in interstate commerce. The government introduced evidence from several bank employees that the defendant had enlisted them to cash the money orders referred to in the indictment, as well as others. The court upheld the admission of the evidence regarding the uncharged money orders because it showed that the defendant had a scheme which included the offenses for which he was on trial and tended to prove the existence of a "definite project intended to facilitate completion of the crime in question." Id., (citation omitted).
The other category of cases where evidence is admissible to show a plan or common scheme are those where the charged and uncharged offenses are so similar in nature and "so related to each other that proof of the one tends to establish the other." Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964). See also, United States v. Johnson, 970 F.2d 907, 914 (D. C. Cir. 1992) (the court relied upon the fact that in five separate instances Johnson went to an American Express office, used a fake name, identified a false sender of a moneygram, and asked for cash rather than travelers checks to uphold the admissibility of the uncharged offenses as part of common scheme or plan); United States v. Burkley, 591 F.2d 903, 920 (D. C. Cir. 1978), cert. denied, 440 U.S. 966 (1979) (the court found a common scheme or plan from evidence that the defendant made two heroin sales to the same undercover police officer with the understanding that he would continue to supply heroin to the buyer).
Neither of the grounds discussed above justifies admission of the methamphetamine evidence in this case. Unlike Lewis, there was no showing that the methamphetamine deals and the charged offenses were all part of some larger plan. In fact, the court expressly rejected that notion when it found that the government had failed to show that the methamphetamine deals had funded the cocaine conspiracy or were otherwise connected to the conspiracy.
The second class of cases, exemplified by Johnson and Burkley,
are also inapposite. In those cases, since the defendants had committed the uncharged offenses, it was highly likely that they had committed the charged offenses as well, because both were so similar. For the reasons discussed earlier, there is no similarity between the methamphetamine deals, which were in substantial respects the handiwork of the government, and the charged offenses. Therefore, the court's alternative basis for admitting the methamphetamine deals was not supported by the evidence. Moreover, the court instructed the jury that a finding that the defendants had a specific plan to commit a series of crimes that were connected to each other could be used to determine the identity of the perpetrators of the charged offenses. Since identity was never an issue in the case, the instruction merely confused the jury.
Since the methamphetamine evidence was not probative of intent or a common scheme or plan, or for any other legitimate purpose, it should have been excluded.
E. Even if arguably relevant, the probative
value of the methamphetamine evidence
was outweighed by its prejudicial impact.
Any slight probative value the methamphetamine evidence may have had was outweighed by the prejudice created by the manner of presentation and the quantum of evidence, and the evidence should have been excluded under Fed.R.Evid. 403. This circuit has repeatedly recognized that the manner of presentation of 404(b) evidence is of critical importance in determining whether the evidence was properly admitted. In United States v. Nicely, 922 F.2d at 856, the court found substantial prejudice from the misjoinder of two conspiracies in part because of the mode of presentation of the evidence. See also, United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980)(the court reversed a conviction for failure to sever offenses under Rule 14, observing that although the trial court was conscientious in its attempts to limit the admission of evidence for only relevant purposes, the "nuances and breadth of some of the testimony," made it inevitable that the simultaneous presentation of charged and uncharged offenses was prejudicial to the defendant); United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989)(one factor in determining whether the introduction of other crimes evidence was plain error, requiring reversal, is the way in which the evidence was presented to the jury); United States v. Foskey, 636 F.2d 517, 524 n.6 (D.C. Cir. 1980)(excluding evidence of Foskey's prior arrest in part because the evidence ws presented in a disorganized and confusing manner, "raising serious doubts aboout whether its import was even made clear to the jury.").
As Judge Tamm said in the concurrence in United States v. DeLoach, 654 F.2d 763, 772 (D.C. Cir. 1980), cert. denied, 450 U.S. 933 (1981), it is only by scrupulously guarding against the presentation of 404(b) evidence in a confusing or prejudicial manner that the aims of the Rule, and its careful balancing of the need for the evidence against the potential harm to defendants, can be achieved: "Appropriate deference to these interests [sought to be served by the rule] requires the prosecution to conduct its presentation of such evidence in a manner likey to make clear to the jurors the limited purpose for which it is properly admissible." Id. at 772.
In this case, where the indictment charged only offenses related to cocaine or cocaine base, four fact witnesses and an expert testified about methamphetamine. The testimony of the non-expert witnesses lasted twelve days and dealt extensively with the methamphetamine deals. The majority of the excerpts of the approximately 70 tapes admitted during the witnesses' testimony concerned methamphetamine deals and not the cocaine conspiracy which the government contended was unfolding simultaneously. In fact, numerous tapes which were turned over to the defense during discovery and which purported to relate to the cocaine conspiracy were not even transcribed by the government for presentation to the jury. Tr. Vol. XXVIII, p. 4055. Additionally, no police officer testified to having seen Mr. xxxxxxx in possession of cocaine or engaging in a cocaine transaction. The only police officer witnesses who gave any testimony about direct observations of drug activity by Mr. xxxxxxx were the officers involved in the methamphetamine activities.
During the trial, the court lamented the fact that the government's presentation of the methamphetamine evidence "has unfortunately, taken much of the court's time in this trial," Tr. Vol. L, p. 7640, and expressed regret that "this [the other crimes evidence] has taken more time than the principal part of the case, which is the cocaine charge." Id., p. 7656.
If the court viewed the methamphetamine evidence as having occupied such a prominent place in the trial as a whole, it is highly likely that the jury shared that perception. Given that, there is serious doubt as to whether the jury could keep separate the evidence about the methamphetamine deals.
F. It was error to admit the methamphetamine
evidence without an immediate cautionary
instruction as to the limited basis
for its admission.
Compounding the prejudice from the volume of the methamphetamine evidence and the manner in which it was presented was that no limiting instruction was given as to the import of the methamphetamine evidence until the eighth day after it was first introduced. At every point where the issue of the admissibility of the methamphetamine evidence was discussed, the government assured the court that it would prove that the methamphetamine deal was carried out in order to finance the charged cocaine conspiracy. These assurances, the district court concluded, were not borne out by the evidence. From the many arguments on the methamphetamine evidence, the government clearly was apprised that the district court was very concerned about whether to admit the evidence, on what basis it would be admitted, and that the jury be told about the reasons for its admission. The government, by its dogged adherence to an untenable position, precluded the court from properly instructing the jury, immediately on receipt of the methamphetamine evidence, as to the limited use to be made of the evidence.
This court has repeatedly stressed the necessity for an immediate cautionary instruction when evidence which is likely to prejudice a defendant is admitted for a limited purpose. Recently, in United States v. Copelin, 996 F.2d 379 (D.C. Cir. 1993), the court reversed Copelin's conviction, finding the failure to give an immediate cautionary instruction when Copelin was impeached with evidence of prior drug tests plain error. Id. at 386. This court has since interpreted Copelin to create a presumption of plain error in situations where the government introduces prejudicial bad acts evidence and no limiting instruction is given. United States v. Brawner, 32 F.3d 602, 603 (D.C. Cir. 1994)("[T]he presumption of plain error created in Copelin does not arise where, as in this case, evidence of the defendant's prior bad acts is introduced not by the Government but as part of the defense attorney's strategy"). The presumption of error applies, even though the court has moved from a per se rule to one that looks at the prejudicial nature of the challenged evidence. In an early decision, United States v. McClain, 440 F.2d 241 (D. C. Cir. 1971), the court appeared to create an absolute rule that whenever other-crimes evidence was admitted, it was plain error not to give an immediate cautionary instruction as to the use for the evidence, because "the danger of prejudicial effect from such evidence is so
great that only an immediate and comtemporaneous instructioncan be considered sufficient to protect defendants." Id., p. 246.
However, McClain has since been read to require a limiting instruction in any circumstance where substantially prejudicial evidence is admitted. In United States v. Lewis, 693 F.2d 189 (D.C. Cir. 1982), relied upon in Copelin, the court reviewed cases after McClain where failure to give a limiting instruction was not deemed reversible error. From that review, the court concluded that:
When all the dust is settled and pushed aside, it
becomes clear that McClain and its progeny find
reversible error occurs only when evidence that
substantially prejudices the defendant is
admitted without immediate cautioning instruction
as to its permissible uses.
693 F.2d at 197.
The methamphetamine evidence was clearly "evidence that substantially prejudice[d] the defendant." Indeed, the powerfully incriminating nature of other-crimes evidence has long been recognized. In United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992), the court reversed Dockery's conviction on drug offenses because an ex-felon in possession of firearms count was tried along with the drug offenses. The trial court did not take special precautions to prevent prejudice to Dockery from the joint trial, including an appropriate limiting instruction. Citing Michelson v. United States, 335 U.S. 469, 476 (1948), the appellate court outlined the general danger of other-crimes evidence: "The primary concern is that prior crimes evidence `weigh[s] too much with the jury and...overpersuade[s] them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.'" United States v. Dockery, 955 F.2d at 53. See also, United States v. Shelton, 628 F.2d 54, 56 (D.C. Cir. 1980)(recognizing "the enormous danger of prejudice to the defendant that evidence of other crimes creates,"); United States v. Lavelle, 751 F.2d at 1278 (reciting "the unique dangers of prejudice associated with the introduction of evidence of other bad acts").
Because other crimes evidence is so prejudicial, courts have been less than sanguine about whether a limiting instruction can ever cure the inherent prejudice of such evidence. See, e.g., United States v. Bussey, 432 F.2d 1330 (D.C. Cir. 1970)("The naive assumption that prejudicial effects can be overcome by instructions to the jury... all practicing lawyers know to be unmitigated fiction,")(citations omitted); United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). In Bussey, the defendant's robbery and assault convictions were reversed in part because the trial court failed to give a limiting instruction when evidence of the defendant's participation in another robbery was introduced by the government. The court held that because "[N]o instruction was given at the time this testimony was admitted, to caution the jurors on the limited purpose for which it was being received,. . . it blinks reality to think that on the basis of the instruction given as part of the charge-in-chief . . . the jury was capable of the 'mental gymnastic' . . . of disregarding the evidence in 'any respect' except as to the one purpose permitted by the trial court ". United States v. Bussey, 432 F.2d at 1334-35. See also, United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985)(the court, in discussing the efficacy of jury instructions in curing the prejudice of other-crimes evidence, quoted the Third Circuit's caution that "it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence [given the admission of other crimes evidence]. A drop of ink cannot be removed from a glass of milk," [citing Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d. Cir. 1976)).
In the instant case, the district court clearly recognized the importance of giving the jury a limiting instruction as to the use to be made of the methamphetamine evidence. The court was precluded from doing so only by reliance upon the government's representations that the methamphetamine deal was primary evidence of the cocaine conspiracy. The trial court was put in a position by the government's continued insistence that its evidence would prove a connection between the methamphetamine dealings and the cocaine conspiracy of not heeding its own counsel. The failure to give a limiting instruction denied Mr. xxxxxxx a fair trial.
G. The prejudice to Mr. xxxxxxx.
The government's case rested largely on the testimony of cooperating witnesses and the audiotapes they made of their conversations with Mr. xxxxxxx. These witnesses were caught with drugs in their possession and faced substantial prison terms when they agreed to cooperate with the prosecution. The
government presented no evidence that Mr. xxxxxxx was ever arrested with drugs for sale. He presented a defense, through his testimony and that of witnesses, that he was a legitimate businessman, that he promised to deliver cocaine to various persons in an effort to scam money from them, and that he was financially destitute by the time of his arrest in 1992. The government's own witness, Robert Passmore, an Internal Revenue Service (IRS) agent, testified that he conducted an exhaustive search for Mr. Cambpell's assets and uncovered only a copy machine, which was subsequently returned. Tr. Vol. XXXII, pp. 4800-01, Vol. XXXIII, pp. 4901-4903, 4914. Shortly before Mr. xxxxxxx's arrest in this case, the IRS executed search warrants at his and his mother's homes, finding no drugs, weapons or other contraband. Id., pp. 4909-13. The jury was given a special verdict form, in which the government summarized its evidence of drug transactions involving Mr. xxxxxxx. Of the 27 transactions listed on the verdict form, the jury found that 13 were not proven beyond a reasonable doubt. App. ___.
Against this backdrop, the methamphetamine evidence substantially prejudiced Mr. xxxxxxx's right to a fair trial. Because no limiting instruction was given immediately upon the introduction of the methamphetamine evidence, the government must overcome a presumption of prejudice. United States v. Copelin, 996 F.2d 379, 386 (D.C. Cir. 1993). Because the government cannot meet this burden, Mr. xxxxxxx's convictions should be reversed.
III. THE COURT ERRED IN ADMITTING INTO
EVIDENCE MONEY TRANSFER RECORDS THAT
CONTAINED HEARSAY AND DID NOT CONSTI-
TUTE CO-CONSPIRATOR STATEMENTS, IN
VIOLATION OF MR. xxxxxxx'S RIGHTS
UNDER THE CONFRONTATION CLAUSE.
The court received into evidence, over objection, more than fifty Western Union money transfer documents. Although troubled by the records' questionable admissibility, the court ultimately ruled that they were admissible as business records to prove the recipient's identity but not to prove the sender's identity. However, the prosecution persuaded the court that the purported sender was admissible as part of the recipient's co-conspirator statement confirming the transfer in order to obtain the money. Contrary to the court's ruling, the records were not admissible as business records under Fed.R.Evid. 803(6) because the identities of the sender and recipient were not adequately verified. Moreover, the foundational requirements of Fed.R.Evid. 801(d)(2)(E) were not met and the documents were not relevant to the charged conspiracy. Therefore, the erroneous admission of the money transfer records violated Mr. xxxxxxx's rights under the Confrontation Clause. A. Standard of review.
This court, in evaluating the admission of hearsay evidence, "will reverse the district court's evidentiary rulings only if the rulings were an abuse of discretion." United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994).
B.The court's variable theories
In its case in chief, and in rebuttal, the government offered Western Union money transfer records into evidence. To authenticate the records, the government called Jennifer Dalton, a records custodian for Western Union. She testified about the forms that are generated and the procedures that are followed when money is transferred via Western Union. Tr. Vol. VI, p. 919. She explained that when a customer sends money, the customer completes a "to send" form, with his/her name, address, telephone number, and whether payment is to be made on a test question, in lieu of the recipient presenting identification. Id., p. 922. Western Union will make payments up to $500 on a test question alone, but a physical description of the recipient is required for payments over $500. Id., p. 941. If the sender does not instruct payment on a test question, then the recipient must present a valid identification in order to receive payment. Id., p. 944.
The government argued that the records were admissible because they reflected the transfer of money between co-conspirators, during the time frame and in the geographical locations of the cocaine conspiracy. Tr. Vol. XXXIV, p. 5139. The defense objected to the records on the grounds that the identities of the sender and recipient were not verified, there was no evidence that the money transfers were in furtherance of the conspiracy, and admission of the documents violated Mr. xxxxxxx's right to confront and cross- examine witnesses against him. Id., pp. 5174-76.
Initially, the court admitted the records under Fed.R.Evid. 803(6), finding that they were properly authenticated because one of the parties to the money transaction could be linked to the conspiracy, the time period and geographical locations reflected on the money transfers coincided with testimony about the conspiracy, and an inference could be drawn that the money was generated from drug dealings because the money was being shipped from St. Louis to California. Tr. Vol. XXXIV, pp. 5167-70, 5198. Additionally, the court found that there was no Confrontation Clause violation because the various witnesses that did testify about the records were subject to cross-examination. Id., p. 5180.
Following a recess, the defense renewed its objection, arguing that United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), required verification of the identity of the party sending the money in order for the records to be admissible as business records. After further argument, the court found that the verification requirement of Patrick was satisfied because "there ha[d] to be communication [by the recipient] with the sending end; that that would verify that there was a relationship between these people who were using the names of the people engaged in this organization." Tr. Vol. XXXV, 5251, 5273-74.
However, on the following day, the court reconsidered, sua sponte, the "serious matter" of the admission of the money orders in light of Patrick. Tr. Vol. XXXVII, pp. 5786-87. Because Western Union did not require verification of the identity of the sender of the money, the court was not satisfied that the documents were admissible as business records. Id., pp. 5788-89.
In response, the government advanced a new theory that the documents were admissible as co-conspirator statements to prove the purported identity of the sender, arguing that when a receiver went to Western Union to pick up money, and signed a form indicating from whom the money was expected, the receiver was making a statement in furtherance of the conspiracy, so long as both the purported sender and recipient were identified as co-conspirators. Tr. Vol. XXXVIII, pp. 5797-98. The defense countered that even if both parties to the transaction could be properly identified, the statement by the recipient was not evidence that the money transfer was in furtherance of the conspiracy. Id., pp. 5804-06, 5812. The court ruled that the identity of the recipient of the money orders was verified, so the statement that the recipient received money could be admitted as a business record, but that the actual identity of the sender could not come in under that theory. Therefore, the complete statement on the money orders, that the purported sender sent money to the recipient, would be admitted as a co-conspirator statement, with a limiting instruction that the identity of the sender was not being admitted for its truth. Id., pp. 5812, 5819, 5823-24.
C. The admission of the money orders
violated the Confrontation Clause.
Mr. xxxxxxx's sixth amendment rights under the Confrontation Clause were violated by the admission of the hearsay statements in the Western Union money orders. "It is a truism that `hearsay rules and the Confrontation Clause are generally designed to protect similar values.'" United States v. Houser, 746 F.2d 55, 62 (D.C. Cir. 1984) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). "The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence." United States v. Bruner, 657 F.2d 1278, 1284 (D.C. Cir. 1981) (quoting Anderson v. United States, 417 U.S. 211, 220 (1974)). Where an exception applies to the admission of hearsay evidence, it is because the exception is so firmly rooted by its own "indicia of reliability" or "particularized guarantees of trustworthiness," that it comports with Confrontation Clause strictures. Bourjaily v. United States, 443 U.S. 171, 182-83 (1987). As this court recognized in Houser, when "[c]onstitutional values are implicated, the `circumstantial guarantees of trustworthiness' justif[ying] departures from the general rule excluding hearsay' should therefore be closely examined." 746 F.2d at 62.
In Idaho v. Wright, 110 S. Ct. 3139 (1990), the Court articulated a two-pronged test to determine whether the introduction of hearsay statements violated an accused's Sixth Amendment rights: (1) The Confrontation Clause is not violated if the hearsay statement "falls within a firmly rooted hearsay exception;" or (2) even if it does not fall within such an exception, it is "supported by a showing of particularized guarantees of trustworthiness." Id. at 3147 (quotations omitted). If the statements cannot be demonstrated to fall within a firmly rooted hearsay exception or to otherwise possess guarantees of trustworthiness, the government bears the burden "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. D. Because it was not the standard
practice of Western Union to
verify the identity of the recipient
of money orders, the Western Union
records were not admissible as
Hearsay evidence is defined as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." Ohio v. Roberts, 448 U.S. at 62 n.4 (1980) (citation omitted). The business records exception to the hearsay rule, Fed.R.Evid. 803(6), permits the admission of a business record as evidence of the truth of matters asserted in it if the record was made at or about the time of the event by a person with knowledge, and was made and kept in the course of a regularly conducted business activity.
This hearsay exception is not applicable when a business record is prepared by an employee from information provided by an outsider, which is not verified. Fed.R.Evid. 805; United States v. Patrick, 959 F.2d 991, 1000-01 (D.C. Cir. 1992) (a store receipt is not a business record admissible to prove purchaser's identity and address where there was no showing that purchaser's information was verified); United States v. Lieberman, 637 F.2d 95, 101 (2d Cir. 1980) (a hotel guest card was inadmissible to prove its truth where the hotel employee had not examined any identification to verify information provided).
In the instant case, according to the Western Union records custodian, the recipient of a money order was not required to provide identification to receive payment if the recipient could answer a test question posed by the sender, and additionally, for payments over $500, the recipient matched a physical description provided by the sender. Tr. Vol. VI, pp. 922, 941, 944. The defense objected to the admission of the money transfer records on the ground that the identity of the recipient was not customarily verified. Tr. Vol. XXXIV, p. 5157. The court concluded that the receiver verified his/her identity by providing a "secret codeword," even where no identification was required. Tr. Vol. XXXVII, p. 5788. However, under Patrick, a codeword cannot establish a party's identity. What Patrick requires is "reliable evidence" that the recipient is who he/she purports to be. United States v. Patrick, 959 F.2d at 1002. Merely having access to information provided by the sender of money does nothing to guarantee that the person who picks up the money is who he/she claims to be. Without proper authentication of the recipient, the admission of the money orders as business records was error.
E. The money orders were not co-conspirator
statements in furtherance of the conspiracy
and should not have been admitted on that
The court admitted the money transfer records on the ground that the statement by the recipient, in picking up money, that the sender had sent him/her money, was a co-conspirator statement, under Fed.R.Evid. 801(d)(2)(E). Tr. Vol. XXXVIII, pp. 5797-98, 5819-20, 5823-24, 5830. Fed.R.Evid. 801(d)(2)(E) "embodies the standing doctrine that when two or more individuals are acting in concert toward a common goal, the out-of-court statements of one are not hearsay and are admissible against the others, if made in furtherance of the common goal." United States v. Weisz, 718 F.2d 413, 433 (D.C. Cir. 1983). This circuit has determined that there must be "substantial evidence independent of the statements [at issue] that a conspiracy existed, that the defendant and the out-of-court declarant were members of the conspiracy, and that the statements were made in furtherance of it." United States v. Washington, 952 F.2d 1402, 1407 (D.C. Cir. 1991). The district court must find these prerequisites by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. at 175.
In the instant case, there was no evidence that many of the individuals named on the money transfer records were co-conspirators, let alone acting in furtherance of the cocaine conspiracy. There was no evidence at all connecting Mr. xxxxxxx to many of the recipients or senders. In other instances, the money orders bore the names of Mr. xxxxxxx's relatives or friends. Tr. Vol. XLIX, p. 7487; XXXVIII, pp. 5822-23. However, "mere association with co-conspirators is insufficient to show that the declarant was a participant in the conspiracy." United States v. West, 670 F.2d 675, 685 (7th Cir. 1982). Because as to many of the persons named in the transfer records, the government failed to furnish independent proof that the recipients were members of the conspiracy, the court was left with the hearsay statement itself, i.e., that the recipient received money from the sender.
The hearsay statement could not support its own admission. "An otherwise inadmissible hearsay statement cannot provide the sole evidentiary support for its own admissibility -- it cannot lift itself into admissibility entirely by tugging on its own bootstraps." Bourjaily v. United States , 483 U.S. at 184 (Stevens, J., concurring). Without any independent evidence to establish that the senders and recipients were co-conspirators, the money transfer records were inadmissible.
Further, the court's proposal to give a limiting instruction as to the identity of the sender vitiated the very basis for admission of the records as co-conspirator statements. Even if the recipient was shown to be a co-conspirator, the fact of receiving money from someone unconnected to the conspiracy would have no relevance. Moreover, if both the senders and recipients named in these transfers had been connected to the charged conspiracy, there was still no evidence outside of the money transfers themselves to establish that the money was received in furtherance of the conspiracy. The only circumstantial evidence with regard to the transfers was that some of the purported senders and recipients were co-conspirators and that the money orders were sent during a time frame and to or from geographical locations connected to the conspiracy. However, nothing was shown about the intent or purpose of the contested transactions. Merely showing that money was received by an alleged co-conspirator without any showing that the money transfer served some aim of the conspiracy fails to meet the threshold requirement that there be a "specific intent to further [a] common unlawful objective." United States v. Tarantino, 846 F.2d at 1392. Given these failings in proof, the statements should not have been admitted as co-conspirator statement.
F. The erroneous admission of the money
transfer records prejudiced Mr. xxxxxxx.
In order for the jury to find Mr. xxxxxxx guilty on the CCE count, they were required to find that he obtained "substantial" income or resources from engaging in a criminal enterprise. 21 U.S.C. § 848(a,c). The erroneous admission of the Western Union transfers allowed the jury to use the thousands of dollars reflected in the transfers as proof of this element of the offense. The contested money orders, over fifty of them, totaled over $110,000. The government argued in its summation that the money orders demonstrated that Mr. xxxxxxx acquired "substantial income." In fact, the money orders were the only documentary evidence of money being moved around by the conspiracy. Unquestionably, the contested money orders constituted a major component of the government's proof of income, an element of the CCE offense. Because Mr. xxxxxxx was prejudiced by the admission of the money orders, their admission was error.
IV. THE COURT ERRED WHEN IT REFUSED TO
PERMIT A LINGUISTICS EXPERT TO
TESTIFY AS AN EXPERT WITNESS AND
EXPLAIN CHARTS HE HAD PREPARED,
BUT INSTEAD PERMITTED HIM TO TESTIFY
AS A LAY WITNESS AND INTRODUCE THE
CHARTS INTO EVIDENCE WITHOUT EXPLANATION. When the defense attempted to call Dr. Roger Shuy, a linguistics expert, to testify about the approximately 100 tape recorded converstions which the government had introduced into evidence in its case in chief, the government objected. Tr. Vol. XXXIX, pp. 6016-24. After a voir dire examination of Dr. Shuy, the court found him fully qualified as a linguist, but declined to admit his expert testimony. Id., pp. 6094-95, 6097-99, 6104. Instead, the court permitted Dr. Shuy to testify as a lay witness, and allowed into evidence several charts which he had prepared. Id., p. 6105, 6110, 6112. In admitting the charts while limiting Dr. Shuy's testimony, the court necessarily confused the jury as to the significance of the charts and the purpose for their admission.
A. The standard of review.
A district court's decision whether to admit expert testimony is reviewed for abuse of discretion. United States v. Harley, 990 F.2d 1340 (D.C. Cir.), cert. denied, 114 S.Ct. 236 (1993); United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992).
B. The proffered expert testimony.
The defense proposed to examine Dr. Shuy about his analysis of approximately 100 audiotapes of conversations among Mr. xxxxxxx and various prosecution witnesses. During a voir dire examination of the expert, Dr. Shuy explained the science of linguistics, his analysis of the conversations on the three series of tapes, and his preparation of certain charts. Tr. Vol. XXXIX, pp. 6036, 6045. He explained that he had analyzed sections of the Calvin Stevens tapes relating to a shipment of cocaine base received by Stevens in August, 1990 and to payment for that shipment, and based on that analysis, could draw certain inferences as to who sent the shipment and to whom money for the shipment was owed. Id., pp. 6046-47, 6049-50.
Dr. Shuy also noticed throughout the three sets of tapes Mr. xxxxxxx's conversational strategies of asking for money, promising, and deferring. Id., pp. 6052-54. The frequency with which these strategies were used permitted Dr. Shuy to draw certain inferences about Mr. xxxxxxx's activities. Id., p. 6054.
The analysis which he conducted is beyond the ability of the average layperson, Dr. Shuy explained, because the process requires knowledge of units of conversation, such as how to identify topics, and how to look for conversational strategies. Id., pp. 6051-52. A layperson would lack the necessary experience in listening to such a large volume of tapes and in identifying the relevant units. Dr. Shuy's analysis of the three series of tapes took between 50 and 60 hours. Id., pp. 6054-56, 6083-86.
At the conclusion of the voir dire, the defense argued that the proffered testimony would corroborate Mr. xxxxxxx's anticipated testimony and would counter the government witnesses' interpretations of the tapes. Id., pp. 6092-93. The district court disallowed Dr. Shuy's expert testimony, finding that it would not aid the jury because the subject matter of the testimony, the taped conversations, was within the general knowledge of the jury and that the testimony would tend to confuse and mislead the jury because Dr. Shuy's analysis dealt only with recorded conversations between Mr. xxxxxxx and government witnesses and many conversations among the participants were never recorded. Tr. Vol. XXXIX, pp. 6099-6101. Instead of permitting Dr. Shuy to testify as an expert, the court ruled that he could testify as a lay witness, simply to introduce redacted versions of charts he had prepared in the course of his analysis of the tapes. Id., pp. 6110, 6112.
C. The exclusion of Dr. Shuy's expert
testimony constituted an abuse of
discretion by the trial court.
The court's refusal to permit Dr. Shuy to testify as an expert deprived the defense of an essential witness. The testimony was admissible under Fed.R.Evid. 702, because the proposed testimony constituted (1) scientific knowledge that (2) would assist the trier of fact to understand or determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2794-95, 125 L.Ed.2d 469 (1993). The requirement that expert testimony assist the trier of fact is primarily a condition of relevance. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. at 2795. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (citing Fed.R.Evid. 401).
In the instant case, the district court found that the proposed testimony satisfied the first prong of the Daubert test, in that it was based on scientific knowledge. However, the court excluded Dr. Shuy's testimony under the second prong of Daubert, finding that it would not have been helpful to the trier of fact. While the decision as to admissibility is discretionary, discretion " . . . does not mean immunity from accountability." U.S. v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992). A court's exclusion of highly relevant expert testimony critical to a defense, when failing to provide a colorable reason for exclusion, constitutes an abuse of discretion. Id., at 788.
In Onumonu, the court reversed the defendant's conviction for heroin smuggling, finding that the trial court abused its discretion in refusing to permit the testimony of a defense expert. The central issue in the case was whether Onumonu knew that the condoms he carried contained heroin. He claimed he thought that they contained diamonds. The defense proposed to call a gemologist to testify about diamond smuggling. The appellate court first determined that the proposed testimony was relevant to an issue at the trial, Onumonu's state of mind, because the testimony of the expert would have helped the jury answer whether Onumonu would likely have concealed diamonds in condoms. Id. at 787. The court next considered the requirement under Fed.R.Evid. 702 that the expert testimony be helpful to the jury. Concluding that the average New York juror knew nothing about diamond smuggling, the court found that the proffered testimony would have assisted the jury in resolving the contested issue whether Onumonu knew that the condoms contained heroin. Id. at 788.
In the instant case, the district court concluded that the proffered testimony would not be helpful to the jury because the subject of the testimony, the taped conversations, was already before the jury and was therefore within their general knowledge. The court did not make an explicit determination on the record as to the relevance of the proffered testimony. However, it is clear that the testimony of Dr. Shuy went to a contested issue in the case, whether the tapes reflected Mr. xxxxxxx's dealings in cocaine and therefore his intent to do the acts charged in the indictment, or, whether, as he contended, they showed his efforts to scam money from various participants in the conversations. Evidence about the expert's topic analysis, from which he was able to draw the possible inference that drugs received by Calvin Stevens in August, 1990, were sent by someone other than Mr. xxxxxxx and that the money Calvin Stevens owed for the shipment was owed to someone other than Mr. xxxxxxx, Tr. Vol. XXXIX, pp. 6047-50, would have made Mr. xxxxxxx's explanation more probable than it would have been without the testimony. Likewise, evidence about the expert's identification of conversational strategies used by Mr. xxxxxxx, asking for money, promising and deferring delivery, Id., p. 6054, would have made Mr. xxxxxxx's explanation more probable than it would have been without the testimony. Therefore, like the gemolist's proposed testimony in Onumonu, Dr. Shuy's testimony was relevant under Fed.R.Evid. 401.
In this case, the court's only basis for concluding that the expert testimony would not be helpful was that the jury had listened to the tapes and could do so again, and that counsel could argue the content of the tapes in closing argument. Tr. Vol. XXXIX, pp. 6098-99. That finding ignored the court's own observations that there were "a very large number of tapes" in evidence and that the taped conversations had been played for the jury at various times during "a very long trial." Id., p. 6098. Moreover, the court ignored the testimony of Dr. Shuy that the analysis he performed was not one that could be done by laypersons. Dr. Shuy stressed the volume of the taped conversations, the fact that some of the recordings were of poor quality, that he had spent 50 to 60 hours listening to all of the tapes (the jury had heard only redactions of many of them), and that it was unlikely that the jury, without expert assistance, would discern the structure of the conversations simply by listening to the tapes. Id., pp. 6045, 6055, 6062, 6084, 6086.
The court excluded the testimony on the additional ground that it would confuse the jury, because the excerpts of the tapes which he analyzed were taken out of context because some of the conversations among the various actors were not recorded and therefore not available for evaluation. Tr. Vol. XXXIX, pp. 6099-6101. Of course, that same rationale would have supported the exclusion of the tapes from evidence at all.
Even if the court's concerns that some of the taped conversations were analyzed out of context were valid, that would not warrant exclusion of the expert testimony. In order for the relevant and helpful testimony of a qualified expert to be excluded, under Fed.R.Evid. 403, the prejudicial effect or the risk of confusion posed by the evidence must substantially outweigh its probative value. United States v. Downing, 753 F.2d, 1224, 1241 n. 22 (3rd Cir. 1985): "In view of the transcendent value of the criminal defendant's interest in the outcome of a criminal trial, added caution is appropriate where the prosecution rather than the defendant seeks to introduce the evidence." Inasmuch as Rule 403 is "an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence," Busby v. City of Orlando, 931 F.2d 764, 784 (11th Cir. 1991)(citation omitted), the court was in error in finding that the prospect of juror confusion outweighed the probative value of Dr. Shuy's testimony.
In Busby, the court reversed a decision of the trial court to exclude the testimony of an expert witness and several charts he had prepared. The raw data from which the charts were made was part of the record. The court found that absent expert testimony and the summary the expert prepared, the jury was left with the raw data and no way to summarize it or discern its meaning. The expert summary would have assisted the trier of fact, the court found, and so the witness should have been permitted to testify and to introduce the summary. Id. at 784.
In this case, the district court admitted the charts prepared by the expert but precluded his testimony explaining them. Obviously, the court determined that the charts had probative value since they were admitted over government objection. If the charts were relevant, then the expert's method and protocol in preparing the charts was also relevant. What the jury received was concededly relevant evidence, without any guidance as to how to use the evidence or any explanation of its significance. After admitting the charts into evidence, the court should have permitted the expert to explain his analysis of the conversations and how that analysis was reflected on the charts. The district court's incongruous ruling caused the very harm that it sought to avoid by excluding the expert testimony -- confusion of the jury.
The testimony of Dr. Shuy was highly probative on a critical issue in the case, and, in fact, would have corroborated Mr. xxxxxxx's theory of defense. In order to outweigh such highly probative evidence, the threat of confusion must be severe. Because Dr. Shuy's testimony would have explained the demonstrative evidence admitted by the court, it would have illuminated, rather than confused, the jury. Additionally, Mr. xxxxxxx had a sixth amendment right to present a defense, which right was abridged by the court's error.
V. THE COURT ERRED IN LIMITING THE CROSS-EXAMINATON
OF TOM xxxxxxx, A CRUCIAL GOVERNMENT WITNESS,
BY REFUSING TO PERMIT APPELLANT TO CONFRONT HIM
WITH AND QUESTION HIM ABOUT EXCERPTED PORTIONS OF
VIDEOTAPES THAT IMPEACHED HIS TRIAL TESTIMONY AND DEMONSTRATED HIS BIAS.
A. Standard of review.
A conviction will be reversed if the district court's limitation on cross-examination "results in prejudice to the substantial rights of the appellant." United States v. Thorne, 997 F.2d 1504, 1513 (D.C. Cir.), cert. denied, 114 S.Ct. 568 (1993).
B. Tom xxxxxxx's testimony.
xxxxxxx and Mr. xxxxxxx were partners in the purchase of several kilograms of cocaine from xxxxxxx's source in El Paso. Tr. Vol. XIV, p. 2349; Vol. XV, p. 2387-88. This cocaine was sold in St. Louis. Tr. Vol. XV, pp. 2397-2405. All told, xxxxxxx and Mr. xxxxxxx purchased about $700,000 worth of cocaine during their partnership. Id.
With profits from the partnership, xxxxxxx invested in a planeload of marijuana which was to be flown into the United States on a DC-3 he had leased for that purpose. Tr. Vol. XV, pp. 2411, 2413, 2434-35. Mr. xxxxxxx was to receive some of the marijuana. Tr. Vol. XVI, pp. 2620-21. When problems developed getting the marijuana from Mexico, xxxxxxx flew to Guatemala to arrange for a load from there. Tr. Vol. XV, pp. 2435-36. The pilot hired to bring the plane into the country turned out to be a government agent, and the plane was seized in Mexico with 591 kilograms of cocaine. Id., pp. 2441-43. xxxxxxx claimed that he did not know that cocaine was on the plane, because he had negotiated to bring in marijuana and not cocaine. Tr. Vol. XVI, pp. 2629-30, Vol. XV, p. 2442.
xxxxxxx was charged in Texas with conspiracy to import 591 kilograms of cocaine, subjecting him to a penalty of 360 months to life. Tr. Vol. XVI, p. 2597. He had previously been convicted of a drug felony. Id. He entered a plea of guilty to the cocaine charge, even though he was expecting only marijuana to be on the airplane, because that was the only plea offer the government extended to him. Tr. Vol. XIV, p. 2342; Vol. XVI, pp. 2633-34.
xxxxxxx testified against Mr. xxxxxxx pursuant to a plea bargain with the government. Tr. Vol. XVI, pp. 2599, 2600. He claimed that if he did not give truthful testimony at trial, the deal with the government would be nullified. Tr. Vol. XIV, p. 2343.
B. The proposed cross-examination.
Following xxxxxxx's direct examination, the defense requested copies of videotapes made by the Drug Enforcement Agency (DEA) of negotiations between xxxxxxx and the agents to import marijuana and cocaine. Tr. Vol. XV, pp. 2505, 2508. After extensive argument, the court ordered that the tapes be produced. The government provided the defense with three videotapes, which the defense attempted to use to impeach xxxxxxx's testimony that he did not intend to import cocaine and to show that he was racially biased. The defense argued that the videotapes showed xxxxxxx's explicit negotiations to import a planeload of cocaine and that his trip to Guatemala was for that purpose.
When the court suggested that discrete, limited, nonrepetitive sections of the tapes might be played during cross-examination, Tr. Vol. XIX, pp. 2937-38, the defense redacted the videotapes, about five hours in length, to approximately thirty minutes of conversation reflecting the negotiations for cocaine and xxxxxxx's statements showing racial bias. The government continued to object to any use of the videotapes, claiming that the proposed cross-examination was collateral.
The court in camera reviewed the segments of the tapes which the defense proposed to use on cross-examination. The court then ruled that the defense had been permitted to question xxxxxxx about the fact that he tried to import cocaine into the country, using a report from the court in Texas, and that further cross-examination would be cumulative. Tr. Vol. XXX, p. 4494. The court determined that playing the proposed excerpts would not be sufficient to put the conversations in context and that playing additional portions of the tapes would be a substantial waste of time. Id. Under Fed.R.Evid. 403, the court held, the value of the proposed cross-examination was outweighed by these factors. Id., p. 4495. Additionally, the court found that xxxxxxx's use of the word "nigger" on one of the tapes did not reflect his racial bias and precluded impeachment with that section of tape. Id., p. 4496. xxxxxxx linked Mr. xxxxxxx to his scheme to import drugs from Mexico and Guatemala. He described the operation of his partnership with Mr. xxxxxxx and the large volume of cocaine the partnership moved to St. Louis. His testimony accounted for a substantial portion of the money the government claimed was earned by the conspiracy throughout its existence. His testimony was not corroborated by documents or tangible evidence and he testified pursuant to a cooperation agreement in order to lessen what was likely to be a very long prison term. The court rightly characterized xxxxxxx as "a very crucial witness as far as Mr. xxxxxxx is concerned," Tr. Vol. XVI, p. 2510, and "a very important witness for the government and against the defense. . . as to the major drug dealing involving Mr. xxxxxxx, if the jury believes his testimony," Id. The court erred in precluding the proposed cross-examination of this crucial prosecution witness. C. The district court erroneously prohibited
the proposed cross-examination.
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." The right of confrontation "means more than being allowed to confront the witness physically." Davis v. Alaska, 415 U.S. 308, 315 (1974). "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Id., pp. 315-16. The Court has emphasized that "the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but [also] . . . allowed to impeach, i.e., discredit the witness." Delaware v. Fensterer, 474 U.S. 18, 22 (1985), citing Davis v. Alaska, 415 U.S. 316. Significant restrictions on the right of cross-examination "call into question the ultimate `integrity of the fact-finding process' and require that the competing interest be closely examined. Chambers v. Mississippi, 410 U.S. 295, 299 (1973)(citation omitted).
Cross-examination which serves to contradict a statement of fact made by a witness to a jury is especially deserving of protection. In United States v. Stock, 948 F.2d 1299 (D.C. Cir. 1991), the court found a violation of the defendant's Sixth Amendment right because the trial judge refused to allow the defense to cross-examine a police officer about a discrepancy between his trial testimony and prior statements he had made about the case. The court reiterated that one component of the right to cross-examination is the right to impeach a witness by asking him about prior inconsistent statements. Id. at 1301. See also United States v. Foster, 986 F.2d 541, 544 (D.C. Cir. 1993)("[t]he essence of successful cross-examination is in selecting questions that undermine the witness's version of reality"); United States v. Pryce, 938 F.2d 1343, 1343, 1345-46 (D.C. Cir. 1991)(finding error in the court's refusal to permit the defense to cross-examine the government's witness about his recent hallucinatory experiences, because hallucinations so close in time to the events at issue were obviously relevant to the witness' ability to recognize reality) cert. denied, 112 S.Ct. 1679 (1992); United States v. Garrett, 542 F.2d 23 (6th Cir. 1976)(cross-examination to elicit answers which might possibly establish untruthfulness with respect to the specific events of the crime charged deserves heightened deference).
The government contended that the proposed cross-examination about the cocaine deal was collateral. However, this court has made it clear that "there should be great latitude for cross-examination on issues raised in direct testimony; cases upholding a court's exclusion of extrinsic evidence offered to impeach a witness, on the ground of the issue's being `collateral,' do not govern the scope of cross-examination itself." United States v. Stock, 948 F.2d at 1302 (citing United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970)).
In addition to seeking to contradict xxxxxxx's direct testimony, the defense proposed to examine him on two possible bias interests, his self-interest in coloring his criminal conduct in Texas and his racial bias. On direct examination, the government bolstered xxxxxxx's credibility by bringing out that if he was not entirely truthful, his deal with the government was off. The defense proposed to show that he was not in fact truthful when he testified on direct examination about his dealings with the DEA agents, so that the jury could fully evaluate whether the government's threat was real, whether xxxxxxx's incentive to give truthful testimony was as powerful as he claimed, and whether he had anything to lose by minimizing his criminal involvement in Texas. Precluding the inquiry into xxxxxxx's self-interest and how it affected his trial testimony violated the rule that "a defendant must be given a reasonable opportunity to cross-examine a government witness as to any agreement with the prosecution." United States v. Tarantino, 846 F.2d 1384 (D.C. Cir.), cert. denied, 488 U.S. 867 (1988)(citations omitted).
Further, the defense sought to probe xxxxxxx's racial bias. The defense contended that his use of racial epithets on the tape demonstrated that he harbored a racial bias which colored his testimony against Mr. xxxxxxx. That the bias or self interest of a witness might cause him to color his testimony is always relevant for cross-examination purposes. The Supreme Court has repeatedly stressed the importance of cross-examination to ferret out such feelings. In Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986), the Court found a violation of the right of confrontation when the trial court refused to allow the defense to question a primary government witness about the government's dismissal of a pending public drunkeness charge in return for his testimony in the defendant's murder trial. Following Van Arsdall, in Olden v. Kentucky, 488 U.S. 229, 233 (1988), the Court found a violation of the Sixth Amendment's guarantee of the right to confrontation when the trial court refused to permit the defendant's counsel to cross-examine the complainant in a rape case about her living arrangements to show that at the time of the alleged assault, the witness was living with another man and claimed to have been raped to protect that relationship. Because the proposed cross-examination might have caused the jury to have a different impression of the credibility of the complainant, the cross-examination should have been permitted, the Court held.
The rule is that a defendant is entitled to bring out enough information on cross-examination to allow "a discriminat[ing] appraisal of the witness's motives and bias." United States v. Derr, 990 F.2d 1330, 1334 (D.C. Cir. 1993) (citing United States v. Robinson, 832 F.2d 366, 373 (7th Cir. 1987)), cert. denied, 486 U.S. 1010 (1988). See also United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989) (conviction reversed because the jury was not apprised that the government had recently dismissed a murder indictment against its chief witness). The Anderson court held that in order to reveal a "prototypical form of bias", Delaware v. Van Arsdall, 475 U.S. at 680, the defendant should have been able to explore the dismissal. 881 F.2d at 1137. In this case, the jury was denied essential information with which it could have appraised xxxxxxx's bias and self-interest.
The court's ruling to exclude the proposed examination rested in part on the concern that the examination would be too time-consuming. However, the defense had selected less than 30 minutes of conversation from approximately five hours of videotapes as showing xxxxxxx's clear intention to import cocaine. The section of the tape where the racial epithets were used was only about one to two minutes in length. The court agreed that the other selected portions did in fact relate to cocaine and to xxxxxxx's efforts to import cocaine, but concluded that the portions were taken out of context and that more of the tapes would need to be used to fully relate the conversations.
The concerns expressed by the court were not significant enough to warrant the denial of the defense request to cross-examine this crucial prosecution witness. In United States v. Hodge, 19 F.3d 51 (D.C. Cir. 1994), the court remanded for a further hearing because of the restriction of the cross-examination of police officers at a suppression hearing. In so holding, the court observed that "any limitations on the right of cross-examination `beyond the typical evidentiary rules limiting its scope to the subject matter of direct examination and to matters affecting witness credibility, Fed.R.Evid. 611(b), must be justified by weighty considerations,'" (quoting United States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981)). That the proposed examination might have taken some time is not such a "weighty consideration," especially in a trial where the government's evidence lasted two months and where the witness was crucial to the government's case.
xxxxxxx was "a very crucial witness against Mr. xxxxxxx," as the district court recognized. He accounted for much of the cocaine which was supplied to the conspiracy and for a great deal of the profits earned during its life. The cross-examination which the court permitted on the issue of the cocaine deal relied upon a report from the court in Texas. The report was not prepared by or in connection with xxxxxxx. It could not be used to impeach his testimony, but merely afforded a good-faith basis for counsel's questions. Once xxxxxxx denied the allegations in the report, only his own words on the tapes could impeach him. xxxxxxx was a cooperating witness, with a very substantial interest in assisting the government. His testimony was largely uncorroborated by either physical or tape evidence. Given the foregoing, the cross-examination error was not harmless.
VI. THE COURT'S PLAIN ERROR IN FAILING TO
INSTRUCT THE JURY THAT MR. xxxxxxx
COULD BE CONVICTED UNDER 21 U.S.C.
§ 848(b) ONLY IF HE FUNCTIONED AS A
MANAGER, SUPERVISOR OR ORGANIZER OF
THE ALLEGED ENTERPRISE AFTER THE
EFFECTIVE DATE OF THE STATUTE
VIOLATED THE EX POST FACTO CLAUSE.
Following a lengthy jury trial, Mr. xxxxxxx was convicted under 21 U.S.C. § 848(b)(1988), the "super kingpin" statute. At sentencing, for the first time, defense counsel objected to the court's failure to instruct the jury that Mr. xxxxxxx could be convicted under that statute only if he functioned as a manager, supervisor, or organizer of the alleged enterprise after the effective date of the statute, arguing that the instructional error violated the ex post facto clause because the jury was allowed to convict Mr. xxxxxxx under the super kingpin statute, which became effective on October 27, 1986, without being required to find that he was a manager, supervisor or organizer of more than five persons after the effective date of the statute. Tr. Vol. LI, pp. 7893-97.
A. The standard of review.
When no objection to an instruction is made before the jury retires, an instruction is reviewed only for "plain error affecting a substantial right so that a miscarriage of justice would otherwise result." United States v. Dale, 991 F.2d 819, (D.C. Cir.), cert. denied, 114 S.Ct. 650 (1993).
B. The ex post facto violation.
In this case, the district court erred by instructing the jury in contravention of the ex post facto clause. Article I of the United States Constitution precludes Congress from enacting any ex post facto laws. See Art. I, section 9, cl.3. See also Miller v. Florida, 482 U.S. 423, 429-30 (1987). The Supreme Court has added that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law such as Art. I, section 9, of the Constitution forbids." Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964).
The types of laws precluded by the ex post facto clause were first defined by the Supreme Court in Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798). There the Court stated that the clause encompasses:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment
than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)(emphasis added).
The Calder v. Bull definition of an ex post facto law can be boiled down to two critical elements: one, "`the law must apply to events occurring before its enactment;'" and two, "`the law must disadvantage the affected offender.'" Miller v. Florida, 482 U.S. at 429-30 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). See also Collins v. Youngblood, 110 S.Ct. 2715, 2719 (1990); United States v. Lam Kwong-Wah, 924 F.2d 298, 304 (D.C. Cir. 1991), cert. denied, 113 S.Ct. 287 (1992); United States v. Green, 952 F.2d 414, 416 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 1775 (1992).
The district court's jury instruction allowed § 848(b) to be applied retroactively, that is, to events occurring before the statute's enactment. Congress enacted 21 U.S.C. §§ 848(a) and (b) as part of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, §1253, 100 Stat. 3207; the enactment became effective upon the President's approval on October 27, 1986.
Section 848(a) provides that anyone who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than ten years and which may be up to life imprisonment. Section 848(b) provides that any person who is the principal administrator, organizer, or leader of a continuing criminal enterprise which deals in 1.5 kilograms of cocaine base or 150 kilograms of cocaine hydrochloride, or which receives at least 10 million dollars in gross receipts during any 12-month period, shall be imprisoned for life without the possibility of parole. As 848(b) has been construed, the government need not prove that a defendant was the principal administrator of the enterprise for an entire 12-month period, but merely that he held a leadership position at some point during that period. United States v. Torres, 901 F.2d at 228. In the case of continuing offenses, the ex post facto clause is not violated by application of a statute to conduct that began prior to but continued after the effective date of the legislation. United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992), cert. denied, 113 S.Ct. 1350 (1993). However, in order to convict a defendant of a continuing offense under 848(b), a fact finder must conclude that the defendant led a continuing criminal activity at some point after the effective date of the statute. United States v. Torres, 901 F.2d at 229 (participation in a criminal enterprise continuing after effective date of statute does not dispose of § 848(b)(1) requirement that jury find that defendant acted as a principal administrator, organizer or leader of the organization after October 27, 1986). It is precisely this determination that the jury in the instant case was not required to make before convicting Mr. xxxxxxx under § 848(b).
The district court's erroneous jury instruction allowed Mr. xxxxxxx to be subjected to the enhanced mandatory life sentence imposed by § 848(b) if he acted as a principal administrator of the enterprise at any time between 1985 and 1992, although §848(b) did not become effective until October 27, 1986. Such an instruction clearly violated the ex post facto clause because it permitted the application of § 848(b) to Mr. xxxxxxx without a jury finding that he engaged in the prohibited conduct at some point after that section's enactment.
Retrospective application of a law constitutes an ex post facto error whenever the defendant was disadvantaged as a result of such application. U.S. v. Torres, 901 F.2d at 227. "It is 'axiomatic that for a law to be ex post facto it must be more onerous than the prior law.'" Miller v. Florida, 482 U.S. at 429-30 (quoting Dobbert v. Florida, 432 U.S. 282, 300 (1979)). The Supreme Court has held that a law applied retrospectively, thereby increasing the length of incarceration, constitutes a substantial disadvantage to a defendant. Miller v. Florida, 482 U.S. at 431. The retrospective application of § 848(b) to Mr. xxxxxxx and his subsequent conviction under the "super kingpin" statute mandated that he be sentenced to life in prison without parole. Had the district court given a proper jury instruction, the jury may have found him guilty of violating § 848(a) only, exposing him to imprisonment from 10 years to life. Thus, the retrospective application of § 848(b) resulted in an increase in the length of his incarceration. Consequently he was disadvantaged by the application of the statute, even though § 848(a) allowed for a life sentence. See Miller v. Florida, 482 U.S. at 431, where the Court held that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old one.
Finally, even if a retrospective law operates to a defendant's disadvantage, it is not ex post facto if the change in the law is procedural rather than substantive. United States v. Lam Kwong-Wah; 924 F.2d at 304, United States v. Green, 952 F.2d at 416. "Although the distinction between substance and procedure might sometimes prove elusive. . . ", a legislative enactment that ". . . increases the quantum of punishment . . . appears to have little about it that could be deemed procedural." Miller v. Florida, 107 S.Ct. at 2453.
C. Violation of the ex post facto clause
constituted plain error.
For the foregoing reasons, the court's failure to properly instruct the jury violated the ex post facto clause. Further, the instruction constituted plain error. Violation of the ex post facto clause is an obvious deviation from a legal rule, or more precisely, a deviation from constitutional law. Therefore, the court's error satisfies the first limitation on appellate authority under Rule 52(b), that there be an error. See United States v. Olano, 113 S.Ct. 1770, 1777 (1993).
The second limitation on appellate authority under Rule 52(b) is that the error be "plain." Id. In determining whether the error is obvious, courts have acknowledged that errors of constitutional magnitude will be noticed more freely under the plain error rule than less serious errors. United States v. Torres, 901 F.2d at 228.
Furthermore, an error is said to be plain if failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 113 S.Ct. at 1777; United States v. Torres, 901 F.2d at 228. In this case, the court's failure to give a proper §848(b) instruction constituted plain error. The integrity and the equity of the judicial system would surely be compromised if an oversight at trial resulted in a defendant's sentence being increased from a minimum of 10 years to a term of life without the possibility of parole.
The third and final limitation on appellate authority under Rule 52(b) is that the plain error "affec[t] substantial rights." United States v. Olano, 113 S.Ct. at 1777-78. In the instant case, Mr. xxxxxxx is in exactly the same position as the defendants in Torres:
It is clear that (1) it was the government's burden to prove all the elements of section 848(b) beyond a reasonable doubt; (2) the instruction and verdict form allowed a resolution of this issue against the Torres brothers and Flores, whether or not they met the requirements of section 848(b)(1) on or after October 27, 1986; (3) the ex post facto rule requires such conduct on or after October 27, 1986, as a constitutional matter as a basis for a conviction under 848(b); and (4) as a result of this resolution adversely to them, these defendants were subjected to the mandatory life sentence imposed by section 848(b), rather than the ten years to life sentence which would otherwise have been available under section 848(a). United States v. Torres, 901 F.2d at 229.
Therefore, the court's error affected his substantial rights.
In summary, the court's failure to give a proper §848(b) jury instruction violated the ex post facto clause and constituted plain error. Given the grave results that the district court's plain error worked in this case, this court must correct the error. The conviction under 21 U.S.C. §848(b) should be vacated, and Mr. xxxxxxx should be resentenced under 21 U.S.C. §848(a).
For the foregoing reasons, Mr. xxxxxxx's convictions should
be reversed and his case remanded for a new trial. Failing that, Mr. xxxxxxx's sentence on Count II of the Indictment should be set aside and his case remanded for resentencing.
FEDERAL PUBLIC DEFENDER
Assistant Federal Defender
On Behalf of Appellant xxxxxxx xxxxxxx
625 Indiana Avenue, N.W., Suite 550
Washington, D. C. 20004
CERTIFICATE OF SERVICE
I hereby certify that on November 2, 1994, I have served by United States Mail, postage prepaid, two copies of the foregoing Brief for Appellant xxxxxxx B. xxxxxxx and one copy of the accompanying Appendix on John R. Fisher, Chief, Appellate Section, United States Attorney's Office, 555 4th Street, N.W., Washington, D. C. 20001, and one copy of the Brief and Appendix on counsel for co-defendant Dennis xxxxxxx, Jonathan Zucker, 2001 S Street, N.W., Suite 630, Washington, D. C. 20009.
Assistant Federal Defender (202) 208-7500