CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Parties

The appellant,xxxxxxxxxxxx, and the appellee, the United States, are the only parties in this court and were the only parties in the District Court.

Ruling Under Review

This appeal presents issues that arose during the trial and sentencing of the appellant in the District Court before the Honorable Thomas Hogan. Relevant rulings by Judge Hogan at issue in this appeal are:

1. Denial of appellant's motion to hold 21 U.S.C. § 856 unconstitutionally vague. Tr. II. 214, Tr. 1/29/91 3; A. 90, 104.

2. Instructions of trial judge to jury concerning elements of Counts one and three through six. Tr. V. IIIA, pp. 18-20; A.1-103.

3. Denial of appellant's motion for judgment of acquittal as to Count six. Tr. V. II. 198-214; A. 75-90.

4. Denial of appellant's objection to reference to and testimony concerning crack houses". Tr. V. II, 11-12, 146-155; A. 48-49, 55-64.

5. Ruling concerning application of relevant conduct and grouping rules of the Sentencing Guidelines. Tr. 2-6-91, 2-3; A. 109-110.

6. Ruling that court lacked power as a matter of law to depart based on lengthy delay between conviction and sentencing. Tr. 2-6-91, 11-12; A. 118-119.

Related Cases

This case has not previously been before this Court. There are presently no other related cases pending in this Court of which counsel is aware.

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES 1

TABLE OF AUTHORITIES iv

ISSUES PRESENTED FOR REVIEW v

STATUTES AND REGULATIONS vi

JURISDICTION 1

STATEMENT OF THE CASE 1

A. The proceedings below. 1

B. The evidence adduced at trial. 2

SUMMARY OF ARGUMENT 6

ARGUMENT 10

I. APPELLANT'S CONVICTIONS ON COUNTS ONE AND THREE THROUGH SIX SHOULD BE VACATED AS 21 U.S.C. § 856 IS UNCONSTITUTIONAL AS APPLIED TO AN INDIVIDUAL WHO MERELY USES A CONTROLLED SUBSTANCE IN HIS HOME 10

II. THE TRIAL JUDGE'S INSTRUCTIONS ERRONEOUSLY

INTERMINGLED THE ELEMENTS OF SECTION 856(a)(1) AND

(a)(2) AND THUS FAILED TO DISTINGUISH BETWEEN THE

NATURE OF THE PURPOSEFUL CONDUCT REQUIRED UNDER EACH SUBSECTION 18

III. THE EVIDENCE WAS INSUFFICIENT AS TO COUNT SIX 21

IV. THE DISTRICT COURT ERRED IN ALLOWING GOVERNMENT

WITNESSES TO REFER TO APPELLANT'S RESIDENCE AS A

"CRACK HOUSE" AND IN ALLOWING A GOVERNMENT EXPERT

TO TESTIFY THAT ACTS OF PROSTITUTION OFTEN OCCURS

IN SUCH "CRACK HOUSES" 23

V. THE DISTRICT COURT MADE INCONSISTENT AND IRRECONCILABLE RULINGS ABOUT RELEVANT CONDUCT AND GROUPING 28

VI. THE DISTRICT COURT ERRED IN CONCLUDING THAT IT

LACKED THE AUTHORITY TO DEPART DOWNWARD. 32

CONCLUSION 37

TABLE OF AUTHORITIES

CASES

AFL-CIO-CLC v. Weber, 443 U.S. 193 (1979) 16

Connally v. General Construction Co., 269 U.S. 385 (1926) 14

Griffin v. Oceanic Contractors, 458 U.S. 564 (1982) 17

Jackson v. United States, 348 F.2d 772 (D.C. Cir. 1965) 21, 22

Lanzetta v. New York, 306 U.S. 451 (1939) 13

Leary v. United States, 395 U.S. 6, 31 (1969) 18

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) 13

People v. Horn, 187 Cal. Rptr. 578 (1960) 14

Stromberg v. California, 283 U.S. 359, 366 (1931) 17

United States v. Adeniyi, 912 F.2d 615 (2d Cir. 1990) 33

United States v. Burns, 893 F.2d 1345 (D.C. Cir. 1990) 34

United States v. Castillo, 924 F.2d 1227 (2d Cir. 1991) 26

United States v. Chen, 913 F.2d 183

(5th Cir. 1990) 11, 14, 16, 18

United States v. Cox, 432 F.2d 1326 (D.C. Cir. 1970) 18

United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990) 26

United States v. Dunn, 846 F.2d 761 (D.C.Cir. 1988) 25

United States v. Garcia-Garcia, 927 F.2d 489 (9th Cir. 1991) 33

United States v. Green, 548 F.2d 1261 (D.C. Cir. 1977) 26

United States v. Lowden, 900 F.2d 213 (10th Cir. 1990) 34

United States v. Maude, 481 F.2d 1062 (D.C. Cir. 1973) 21

United States v. Milani, 739 F.Supp. 216 (S.D.N.Y. 1990) 12

United States v. Olnick, 889 F.2d 1425 (5th Cir. 1989) 11

United States v. Ortez, 902 F.2d 61 (D.C. Cir. 1990) 33

United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980) 22

United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980) 18

United States v. Watkins, 519 F.2d 294 (D.C.Cir. 1975) 22

United States v. Weaver, 920 F.2d 1570 (11th Cir. 1991) 36

United States v. White, 888 F.2d 490 (7th Cir. 1990) 29

United States v. Williams, 891 F.2d 921 (D.C. Cir. 1989) 32

United States v. Williams, 923 F.2d 1397 (10th Cir. 1990) 11

Yates v. United States, 354 U.S. 312 (1957) 18

Zant v. Stephens, 462 U.S. 862 (1983) 18

STATUTES, RULES AND SENTENCING GUIDELINES

18 U.S.C. § 3553(b) 34

21 U.S.C. § 844(a) 16

21 U.S.C. § 856 10

Fed. R. Crim. P. 32(a) 35

Fed. R. Evid. 401 25

Fed. R. Evid. 403 25

Fed. R. Evid. 702 25

U.S.S.G. § 1B1.3(a)(2) 29, 31

U.S.S.G. § 2D1.1(c)(19) 30

U.S.S.G. § 3D1.2(d) 29, 32

U.S.S.G. § 3D1.4(c) 30

U.S.S.G. § 5G1.3 35

California Healh and Safety Code Sections

11365 et seq. . . . . . . . . . . . . . . . . . . . . . . 17

OTHER AUTHORITIES

T. Hutchison & D. Yellen, Federal Sentencing Law and Practice § 9.12 (Supp. 1991) 33, 34

U.S. Department of Justice Handbook on the Anti-Drug Abuse Act of 1986 16, 17

ISSUES PRESENTED FOR REVIEW

I. Whether 21 U.S.C. 856 is unconstitutionally vague as applied to the use of a controlled substance in one's own home?

II. Whether the trial judge incorrectly charged the jury as to the elements of Counts one and three through six when he failed to distinguish between the nature of the purposeful conduct required under 21 U.S.C. 856(a)(1) and (a)(2)?

III. Whether the evidence was sufficient to support the appellant's conviction on Count six?

IV. Whether the appellant was prejudiced by government witnesses general references to his residence as a "crack house" and by a government expert's testimony that prostitution is often found in crack houses where there was no evidence that the appellant's residence was primarily or principally used for the manufacture, distribution, or use of controlled substances nor any evidence that prostitution was conducted or allowed at the residence?

V. Whether the trial judge erred in calculating the applicable offense level by inconsistent application of the relevant conduct and grouping guidelines?

VI. Whether the trial judge erred in ruling as a matter of law that he did not have authority to depart downward based on the 18 month delay between conviction and sentencing?

STATUTES AND REGULATIONS

21 U.S.C. § 856 provides:

Endangering human life while illegally manufacturing a controlled substance

(a) Except as authorized by this title, it shall be unlawful to---

(1) knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance;

(2) manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

(b) Any person who violates subsection (a) of this section shall be sentenced to a term of imprisonment of not more than 20 years or a fine of not more than $500,000, or both, or a fine of $2,000,000 for a person other than an individual.

U.S.S.G. § 1B1.3 provides:

Relevant Conduct (Factors that Determine the Guideline Range)

(a) Chapters Two (Offense Conduct) and Three (Adjustments. Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plain as the offense of conviction;

(3) all harm that resulted from the acts or omissions specified in subsections (a)(2) and (a)(2) above, and all harm that was the object of such acts or omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. § 3D1.2 provides:

Groups of Closely-Related Counts

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

Federal Rule of Evidence 401 provides:

Definition of "Relevant Evidence"

"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 evidence.

Federal Rule of Evidence 403 provides:

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Federal Rule of Evidence 702 provides:

Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. xxxxxxxxx

UNITED STATES OF AMERICA,

Appellee

xxxxxxxxxxx, SR. Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

JURISDICTION

Jurisdiction of this appeal from the final judgment of conviction entered by the District Court is conferred by 28 U.S.C. 1291. Jurisdiction to review the sentence imposed is conferred by 18 U.S.C. § 3742(a). The appellant filed a timely notice of appeal.

STATEMENT OF THE CASE

A. The proceedings below.

On December 8, 1988 a grand jury for the District of Columbia returned a five count indictment charging in Counts one through four that the appellant knowingly did "open and maintain a place for the purpose of distributing and using a controlled substance". Count five was a forfeiture count directed at the property named in the first four counts.

Hearings on the defendant's motions to suppress physical evidence and statements were held in March 1989. The defendant's motions were denied by a Memorandum Opinion and Order filed on May 25, 1989.

Four days prior to the scheduled commencement of trial the government filed a Superseding Indictment, omitting the original forfeiture count and adding two additional counts. A. 10. The trial of this case commenced before the Honorable Thomas Hogan on July 10th. On July 14th the jury returned guilty verdicts on all six Counts of the Superseding Indictment.

The appellant filed posttrial Motions for Arrest of Judgment on July 25, 1989. After hearing argument the Court denied the defendant's pending motions on January 31, 1991. Tr. 1/29/91. The defendant was sentenced on February 6, 1991, approximately 18 and one-half months after the jury rendered its verdict. A. 14.

B. The evidence adduced at trial.

Counts one and three through six charged appellant with violations of 21 U.S.C. 856 by, paraphrased, maintaining a place for the unlawful manufacture, distribution, or use of a controlled substance on June 15, September 1, September 16, October 11, and December 1, 1988, respectively. The evidence regarding each of these offenses consisted primarily of testimony of officers who executed warrants or otherwise visited the premises on these dates.

In addition, evidence concerning the appellant's involvement in the distribution of crack cocaine on June 15th formed the basis of the offense charged in Count two.

1. June 15, 1988 (Counts one and two).

On this date officers went to the appellant's residence at xxxx Marion Street, N.W. to execute a search warrant. Prior to execution of the warrant an undercover officer attempted to make a "backup buy" at the address. Appellant met the undercover officer at the front door and in response to the latter's request to purchase cocaine, led him to a female on the second floor of the house, who then sold the officer a $40 "rock" of crack cocaine. Tr. V. I. 5-8.

Within a few minutes the previously obtained search warrant was executed. Twenty two people were found in appellant's house at the time of execution of the warrant. Narcotics and related paraphernalia was found in a bedroom on the second floor. The appellant was standing in the doorway of the second floor bedroom within 5-10 feet of the narcotics. Others were also in the bedroom. Tr. V. I. 23-24, 31-2.

2. September 1, 1988 (Count three).

On this date a warrant was executed for xxxx Marion Street and again controlled substances and related paraphernalia were found. On this occasion there were 20 individuals found in the house. Tr. V. I., 46-51. Two ziplocks of crack was found in the front bedroom, one ziplock was found in a change purse on the floor of the basement and one baggie containing crack was found in a stereo in the hall. Id. at 83. Paraphernalia were also found in the basement. Id. at 49.

3. September 16, 1988 (Count four).

Again on this date a search warrant was executed for appellant's residence. At the time of execution of the warrant, there were 22 people in the residence, 19-20 of whom were in the basement. Also found in the basement was a small amount of crack cocaine and related narcotics paraphernalia. There was no evidence that the appellant was present at the time. Tr. V. I. pp. 104-109.

4. October 11, 1988 (Count five).

On this date officers of the Metropolitan Police Department accompanied United States Marshals in the execution of a seizure warrant that had been issued by the District Court on October 4th for forfeiture of xxx Marion Street Again, approximately 20 people, scattered throughout the three levels, were found in the house when the officers arrived to execute the warrant. A small quantity of drugs was found in a change purse in the hallway. Paraphernalia were found throughout the premises. The appellant was at that time informed that his house was subject to the seizure warrant that had been issued by the District Court and that he would have to leave, as the Marshal's were going to board the house and otherwise block access. Signs were then posted notifying the public of the seizure and prohibited access. Tr. V. I. 123-132; V. II. 34-40. Appellant was specifically informed that the premises were now in the custody and control of the government. Tr. V. II. 24.

5. December 1, 1988 (Count six).

After receiving information that reentry had been made into xxxx Marion Street after the October 11th seizure, U. S. Marshals returned to the premises on December 1st. Upon arrival, appellant was seen exiting a door to the basement. Access had apparently been gained by removal of the plywood that had been utilized to block entrance. Nine to ten others were seen either exiting or on the premises. Paraphernalia used for the ingestion of crack were found throughout the house. A pipe and some glass tubing was removed from the appellant's person. Tr. V. I. 162-165; V. II. 38-42.

6. The testimony of David Shroud.

The government called Metropolitan Police Officer David Shroud to testify as an expert on the "use and trafficking of controlled substances, particularly crack and cocaine." Tr. V. II, p. 145. After testifying as to the methods of distribution of crack in the District of Columbia, Officer Shroud was allowed to testify, over objection, as to the general characteristics of "crack houses." Specifically, Shroud told the jury that a "crack house" is a place whose "main purpose" is as a refuge for ingestion of crack. Shroud further informed the jury that such houses also exist for the sale and manufacture of crack, as well as providing havens for prostitution. Tr. V. II, pp. 159-160. 7. The government's lay evidence.

The government offered the testimony of five lay witnesses, three of which were neighbors who related their general observations concerning activities around xxxx Marion Street, including frequent visitors and loud music and noises consistent with "partying." Tr. V. II. 84, 87-8, 107-8, 119-123. The other two lay witnesses were users who frequented the premises for the purposes of using crack cocaine.

xxxxxxx Alexander testified that she was present when the police arrived on September 1st and that she often went to the appellant's house to obtain and smoke crack cocaine. Tr. V. I. 93-97. Moreover, she had observed appellant smoking crack at his house. Id. at 97-98. Jocelyn Luckey, who was present at the time of the September 16th raid offered similar testimony. V. II. 72-74. She also testified that she had seen appellant use crack at his house. V.II. 74.

SUMMARY OF ARGUMENT

The appellant's first argument addresses the scope of 21 U.S.C. § 856 as applied to an individual who uses a controlled substance in his home. Section 856, a relatively new statute, enacted as Section 1841 of the Anti-Drug Abuse Act of 1986, Pub L. No. 99-570, 100 Stat. 3207-52, proscribes two different kinds of conduct. Though the language is far from clear, subsection (a)(1) appears to address the manner in which an individual personally uses his property, while subsection (a)(2) prohibits an individual from knowingly making his property available to others for the manufacture, distribution or use of controlled substances. While sufficient evidence was introduced to support a finding that the appellant violated subsection (a)(2) by making his home available to others for the use of a controlled substance, the jury was not specifically instructed as to the distinction between violating subsection (a)(2) by an individual making a place available to another and violating subsection (a)(1) by an individual "opening" or "maintaining" a place for his own improper purpose. The foundation of appellant's first argument is that 21 U.S.C. § 856 was not intended to bring about the anomaly that results when that provision is applied in a broad fashion to conduct which involves the mere use or simple possession of a controlled substance and that the statute does not give adequate notice that it might be so broadly applied.

The vagueness problem was exacerbated by the imprecise language of the indictment and the trial judge's charge, both of which contained language that was a hybrid of subsections (a)(1) and (a)(2). The trial judge's instructions, which,in effect, merely tracked the imprecise and confusing language of the indictment, are the focus of the appellant's second argument. Here, it is contended that the instructions did not differentiate between the offenses set out in subsections (a)(1) and (a)(2), and, therefore, mistakenly treated the "purpose" element as being the same under both subsections, when, in fact, subsection (a)(1) requires the individual who "open[s] or maintain[s]" the place do so with the express purpose of distributing, manufacturing, or using a controlled substance, while (a)(2) requires prohibits a person from knowingly making a place available to another who has the prohibited purpose. The jury, as instructed, could have found that appellant had the prohibited mental state but did not "open" or "maintain" the premises for the prohibited purpose as required by subsection (a)(1). Similarly, as instructed, the jury could have mistakenly found appellant guilty on a subsection (a)(2) theory of providing a room or enclosure to others without finding that the other parties had the prohibited purposeful mental state. The jury was simply given no guidance in this regard.

While a properly instructed jury could arguably have found appellant guilty of Counts one, three, four and five under either a subsection (a)(1) or (a)(2) theory, the appellant maintains in his third argument that the evidence was insufficient to support a conviction on Count six under either theory due to the peculiar factual scenario wherein the alleged prohibited usage occurred after the property had been seized by the Government pursuant to a forfeiture warrant. In the absence of any evidence as to the circumstances surrounding the alleged reentry into the premises after the seizure of the property (the appellant was merely seen exiting the basement on December 1st and paraphernalia were found inside along with nine to ten other people), the evidence was insufficient to support Count six.

The appellant's fourth argument, while based on related evidentiary rulings, is not entirely disconnected from the vagueness problem presented by Section 856 in general and the specific difficulties generated by the confusing language of the indictment. Despite the fact that the evidence fairly indicated that xxxx Marion Street was primarily the residence of appellant, and had been so used for years, the government's witnesses were repeatedly allowed, over objection, to refer to the premises as a "crack house", a term which implies that a principal purpose of the residence was to further the proscribed purposes set out in Section 856. The error in allowing the government witnesses to refer to appellant's residence as a "crack house" when there was no evidence to support the theory that the primary, or at a minimum, a principal usage of the house was for the prohibited purpose was greatly compounded when a government expert went much further and offered testimony concerning the so-called characteristics of crack houses as including refuges for prostitution. This evidence was extremely prejudicial when there was no evidence whatsoever in this case concerning prostitution at xxxxx Marion Street

Appellant's final two arguments address errors committed at sentencing. In argument five appellant contends that the trial judge erred in applying the multiple count rules of the sentencing guidelines. The approach taken in the Presentence Report, which was followed by the trial judge, was internally inconsistent in that the amount of drugs used to calculate the offense level for Count two included the total amount of drugs found in the house on each of the dates that form the basis of Counts one and three through six under a relevant conduct theory, U.S.S.G. § 1B1.3(a)(2), that allows consideration of conduct for which grouping is required under Sentencing Guideline §3D1.2(d); however, despite using this theory of relevant conduct, the Court then inconsistently refused to group Count two with the other Counts pursuant to U.S.S.G. § 3D1.2(d).

Appellant's final sentencing argument is that the trial judge erred when he ruled that as a matter of law he did not have the authority to depart downward based on the 18 month delay between conviction and sentencing, a delay for which the appellant was not responsible, where such delay conceivably worked to the appellant's prejudice.

ARGUMENT

I. APPELLANT'S CONVICTIONS ON COUNTS ONE AND THREE THROUGH SIX SHOULD BE VACATED AS 21 U.S.C. 856 IS UNCONSTITUTIONAL AS APPLIED TO AN INDIVIDUAL WHO MERELY USES A CONTROLLED SUBSTANCE IN HIS HOME

A. As Instructed the Jury Could Have Found the Appellant Guilty on the Theory That He Used a Controlled Substance in His Own Home.

Counts one and three through six of the indictment in this case charged that the appellant violated 21 U.S.C. § 856, which provides:

Endangering human life while illegally manufacturing a controlled substance

(a) Except as authorized by this title, it shall be unlawful to---

(1) knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance;

Subsections (a)(1) and (a)(2) describe two different means of violating Section 856. Subsection (a)(1) is directed at the person who "opens" or "maintains" any place for the purpose of manufacturing, distributing, or using a controlled substance. Subsection (a)(2) is aimed at the person who, while not intending to personally engage in the above unlawful purposes, nevertheless knowingly makes available any property to others who do have such a purpose. See United States v. Chen, 913 F.2d 183 (5th Cir. 1990) (discussing different mental element of purpose required for subsections (a)(1) and (a)(2)). While as yet there are not many reported cases analyzing Section 856, the ones that do assume that subsections (a)(1) and (a)(2) proscribe different kinds of conduct. See United States v. Chen, supra (defendant charged in Count one with violating 856(a)(1) and in Count two with violating 856(a)(2); United States v. Olnick, 889 F.2d 1425 (5th Cir. 1989)(defendant charged with violating 856(a)(1)); United States v. Williams, 923 F.2d 1397 (10th Cir. 1990)(defendant charged with violating 856(a)(1)).

As discussed in Argument II, infra, neither the indictment nor the trial judge's instructions took any note of the differences in the two subsections. While the indictment and the charge to the jury were both couched primarily in subsection (a)(2) language, the "open" or "maintain" terminology was taken from subsection (a)(1). First, as instructed (though improperly charged as to the element of purposefulness, see Argument II), the jury could have found appellant guilty on a subsection (a)(2) theory that he knowingly made his home available to others, who had the prohibited purpose. Second, as instructed, the jury could have utilized a subsection (a)(1) theory to find the appellant knowingly "opened" or "maintained" a place for his own personal use of a controlled substance. It is this potential application of the statute that appellant contends is problematically vague.⁽¹⁾

B. There Was Evidence Whereby a Jury Could Find That Appellant "Maintained" His Home for His Personal Use of a Controlled Substance.

There was evidence introduced whereby a jury, as charged, see Argument II, infra, could have based its guilty verdicts on Counts one and three through six on a theory that appellant maintained his home for his own use of a controlled substance. Government witnesses Juanita Alexander and Jocelyn Lackey both testified that they had observed appellant using controlled substances in his home. Tr. V. I. 97-98, A.36 (Alexander); V. II. 72-74, A.54 (Lackey). The appellant was found in his house where controlled substances were found on all but one of the raids, often in close proximity to narcotics and/or paraphernalia. See Statement of the Case, § b, supra. For instance on June 15th when the police arrived appellant was standing in the doorway of the upstairs bedroom within a few feet of where the narcotics were found. Tr. V. I. 23-4, 31-2; A. 34-35. On December 1st a pipe and glass tubing was removed from defendant's person. Tr. V. II. 38-42; A. 37. In addition testimony of defense witnesses, elicited primarily on cross examination, established that appellant smoked crack in his home. Tr. V. III. 41, 49; A. 91A-91B.

C. Section 856 is Vague as Applied to Usage of a Controlled Substance In One's Own Home.

A basic tenet of due process is that a statute criminalizing conduct must provide adequate notice that such conduct is prohibited; thus, a statute is void for vagueness where it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972). A citizen should not have to speculate as to what conduct is prohibited by a particular statute. Lanzetta v. New York, 306 U.S. 451, 453 (1939).

Where a statute, such as Section 856, creates a new offense it should clearly and unmistakably inform those subject to its terms of what conduct on their part will violate the statute. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). This principle is grounded in the most basic principles of "fair play." Id. While specificity in an indictment may not be used to rescue an otherwise vague statute, Lanzetta, 306 U.S. at 453, here the indictment actually served to further complicate matters as it confusingly intermingled the elements of Sections 856(a)(1) and (a)(2).

1. "Open" or "maintain".

The meaning of the terms "open" and "maintain" are simply unclear when not adequately limited by the specific purposeful conduct required to violate Section 856(a)(1). For instance, does a person violate this statute by merely "opening" a building and then later forming the unlawful purpose? Does the term "open" apply to the building's initial use or can an individual, such as appellant, who had owned and used his house for lawful purposes for several years suddenly be guilty of "opening" his house if he comes in one day and uses a controlled substance? See United States v. Chen, 913 F.2d at 186 (the term "open" in Section 856(a)(1) requires that the place be originally opened for the prohibited purpose (emphasis added); People v. Horn, 187 Cal. Rptr. 578 (1960)(interpreting the terms "open and maintain" under similar provision of the California Health and Safety Code).⁽²⁾

The same problems are presented with a broad interpretation of guilt based on "maintaining" one's home for the purpose of use of a controlled substance. If an individual maintains and uses his home almost exclusively for a family residence but peripherally and/or occasionally uses a controlled substance therein has he violated Section 856(a)(1)?

Appellant suggests that in order for Section 856(a)(1) to survive a vagueness challenge, its applicability must be limited by an instruction requiring that the primary purpose, or at a minimum, a substantial purpose, of the violator be the use of the premises for the manufacture, distribution or use of a controlled substance, at least in the situation where the violation is potentially based on the use rather than manufacture or distribution of a controlled substance.⁽³⁾ Such an interpretation avoids inconsistent and potentially absurd results.

2. Use of a controlled substance in one's home.

Read literally, subsection (a)(1) would make it a felony, punishable by incarceration up to 20 years for a person to use a controlled substance in his home regardless of the amount, as without any limiting requirement that such use be the "primary" or a "substantial" purpose for the home, such an individual could be said to be "maintaining" his home for use of a controlled substance. However, an act may literally be within the four corners of a statute and yet still not violate the statute where such act is neither within the spirit nor the intentions of its makers. AFL-CIO-CLC v. Weber, 443 U.S. 193, 201 (1979). Appellant suggests that to be the situation as to the general application of Section 856(a) to the use of a controlled substance within one's home. There is nothing in the sparse legislative history, see United States v. Chen, 913 F.2d at 188; U.S. Department of Justice Handbook on the Anti-Drug Abuse Act of 1986, p. 106, or in the title of Section 856, "Establishment of Manufacturing Operations", which would lead one to believe Section 856 was designed to change the long held understanding that simple possession or use of a small amount of a controlled substance is a misdemeanor. See 21 U.S.C. § 844(a). In fact, a broad reading of Section 856(a)(1) as applicable to the mere possession or usage of a small amount of a controlled substance would result in such usage or possession in the privacy of a home being a felony punishable by up to 20 years in prison while the same usage or possession in public would be only a misdemeanor, punishable by a maximum of only one year. The inference that Congress intended such a non-sequitur can be avoided only by a finding that Section 856(a)(1) does not apply to the use of a controlled substance in the home in the absence of an interpretation (and instruction to the jury) that such possession was a substantial or primary use of the home.⁽⁴⁾ Such an approach would be consistent with the statutory maxim that statutory interpretations which produce absurd results are to be avoided if alternative interpretations consistent with legislative purpose are available. Griffin v. Oceanic Contractors, 458 U.S. 564 (1982). Without such an interpretation, and charge to the jury, Section 856(a)(1) is unconstitutionally vague as applied to the use of a controlled substance in one's own home.

D. Where the Jury Is Instructed on Two Theories, One of Which Would Result in a Proper Basis For Conviction and One of

Would Result in Conviction on an Improper Basis, a New Trial Must Be Granted

It has long been settled that a general verdict of guilt must be set aside if, due to the instructions to the jury, such verdict could have rested on two or more grounds, one of which is improper.

Stromberg v. California, 283 U.S. 359, 366-67 (1931)(where jury instructed as to three clauses in indictment, and where any one of such clauses is unconstitutional, general verdict must be vacated); Yates v. United States, 354 U.S. 312, 313 (1957)(verdict must be set aside where "supportable on one ground but not on another, and it is impossible to tell which ground the jury selected."); Leary v. United States, 395 U.S. 6, 31-32 (1969)("when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires the conviction be set aside."). Zant v. Stephens, 462 U.S. 862, 880-82 (1983). This court has specifically recognized and applied this rule. United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980); United States v. Cox, 432 F.2d 1326 (D.C. Cir. 1970).

It is conceded that under the evidence a jury could have found appellant guilty of violating Section 856(a)(2), if he had been so charged, by making his home available to others who had the purpose prohibited by the statute. However, inasmuch as the instructions to the jury sanctioned a finding of guilt on Counts one and three through six on a theory of simple possession or use of a controlled substance by appellant in his own home, where the application to this situation Section 856(a)(1) would be unconstitutionally vague, this court must set aside the verdict.

II. THE TRIAL JUDGE'S INSTRUCTIONS ERRONEOUSLY INTERMINGLED THE ELEMENTS OF SECTION 856(a)(1) AND (a)(2) AND THUS FAILED TO DISTINGUISH BETWEEN THE NATURE OF THE PURPOSEFUL CONDUCT REQUIRED UNDER EACH SUBSECTION

As noted above 21 U.S.C. §856 proscribes two separate offenses, each with distinguishing elements. United States v. Chen, supra.

Subsection (a)(1) is addressed to the individual who knowingly opens and maintains a place for the express purpose of distribution, manufacture, or use of a controlled substance. Id. Under subsection (a)(1) the mental element of purpose is that attributed to the individual who himself has the prohibited purpose when opening or maintaining a place. By contrast, subsection (a)(2) addresses the situation where an individual knowingly makes available to another a place where the other person's purpose is the manufacture, distribution or use of a controlled substance. Id. Thus, while the mental element of "knowingly" may be the same under both subsections, the mental element of "purpose" requires a different inquiry when examining whether a defendant unlawfully "opened" or "maintained" a place under subsection (a)(1) than when determining whether a defendant violated subsection (a)(2) by knowingly making available a room or enclosure to others. Id.

The indictment in this case improperly commingled the elements of subsections (a)(1) and (a)(2), failing to specify either offense and instead alleging in a general fashion in Counts one and three through six that the appellant violated section 856 in that appellant did "open and maintain a place" (subsection (a)(1) language) for the purpose of distributing and using a controlled substance and further, "as an owner, lessee and agent... did...manage, control, and otherwise make available..." (subsection (a)(2) language) the premises for the use of a controlled substance. A. 10.

Thus, without differentiation, the "open and maintain" language of subsection (a)(1) is combined with the "manage and control" language of (a)(2). While Counts one and three through six contained other language more appropriate to subsection (a)(2), the instructions of the trial judge failed to resolve the confusion, tracking instead the language of the indictment. Thus, the jury was instructed that the elements of these counts were:

1. that the defendant managed, controlled, opened, or maintained any building, room, or enclosure

2. that he did so for the purpose of manufacturing, storing, distributing or using a controlled substance

3. that he did so knowingly; and

4. that at the time he did so the defendant was either the owner, lessee, agent, employee, or mortgagee of the premises.

Tr. V. IIIA, p. 19-20; A. 101-103.

As can be seen, the instruction fails to distinguish between the purposeful conduct required under the two subsections. This problem arose with the initial failure of the indictment to distinguish between the express prohibitions of subsections (a)(1) and (a)(2).

The trial judge's failure to clarify this distinction prejudiced the appellant. Under the instructions as given, the jury may have found the appellant guilty under a subsection (a)(2) theory that he "managed" or "controlled" a property which he made available to others without an express finding that the others had the purpose of distributing or using a controlled substance. As instructed, the jury's focus would have been on the appellant's purpose. Similarly, the jury may have found that the appellant indeed personally did have the prohibited purpose but that he neither "opened or maintained" a place as required by subsection (a)(1).

The trial judge has a duty to correctly charge all the elements of an offense. Jackson v. United States, 348 F.2d 772, 773 (D.C. Cir. 1965)("defendant's right to have the jury pass on each element of the offense imposes a duty on the judge to give proper instructions on each element, even though no request is made by defense counsel.");

United States v. Maude, 481 F.2d 1062, 1075 (D.C. Cir. 1973). Here, the instructions failed to adequately discharge that duty.

III. THE EVIDENCE WAS INSUFFICIENT AS TO COUNT SIX

At the conclusion of the government's case and at the conclusion of all the evidence, appellant moved the court for a judgment of acquittal on Count six. Tr. II. 198-211; A. 75-90. Appellant contended, as he does here, that the evidence was insufficient as to Count six because the government had seized control of his home when executing the seizure warrant on October 11, 1988. At the time of execution of the seizure warrant appellant was advised that he would have to leave the premises and could not return absent court authorization. Appellant's home was boarded and appropriate signs posted. Tr. V. I., 123-132; V. II., 24,34-40.

When the officers returned on December 1st, appellant was observed exiting a door to the basement, where access had apparently been gained by removal of the plywood that had been used to bar entrance. Nine to ten others were seen either exiting or within various parts of xxxx Marion Street Paraphernalia was found within the house. A pipe and glass tubing was removed from appellant. There was no other evidence as to the circumstances of the entry by appellant or anyone else. Tr. V. I. 162-165; V. II. 38-42.

Due process requires the government to introduce evidence sufficient to satisfy a rational jury that each element of the offense has been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). While this court must review the evidence in a light most favorable to the government, drawing all reasonable and legitimate inferences from the evidence, United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980); United States v. Watkins, 519 F.2d 294 (D.C.Cir. 1975), nonetheless the appellant's guilt may not be established by speculation as to the existence of any element of the offense.

Here, there was insufficient evidence to support guilt on Count six under either a subsection (a)(1) or subsection (a)(2) theory. Under subsection (a)(1) there was no evidence whatsoever that the appellant was the person who removed the plywood and therefore arguably "opened" the premises for the prohibited purpose. In light of the evidence that appellant's house had been a long-time neighborhood "hangout", see Tr. III. 23-77, and the evidence that there was as many as ten other people in the house when the officers arrived, there was no adequate evidentiary basis for concluding that appellant, had himself, either "opened" or "maintained" the premises after his exclusion on October 11th. This conclusion is buttressed by the testimony of three neighbors called by the government. None was able to shed any light on the specifics of the reentry into xxxx Marion Street and appellant's role, if any. See Tr. II, 87-88 (Parsons), 111-112 (Mikitin), 120-123 (Crochet). In fact, the substance of this testimony was that numerous people were seen going in and out of the premises after the October 11th seizure, though appellant was apparently only sporadically seen in the area.

Similarly, as to subsection (a)(2) there was no evidence either that appellant, after his exclusion, "managed" or "controlled" the premises, or for that matter that appellant was the "owner, lessee, agent, employee, or mortgagee" as required by this subsection.⁽⁵⁾

IV. THE DISTRICT COURT ERRED IN ALLOWING GOVERNMENT WITNESSES TO

REFER TO APPELLANT'S RESIDENCE AS A "CRACK HOUSE" AND IN ALLOWING A GOVERNMENT EXPERT TO TESTIFY THAT ACTS OF

PROSTITUTION OFTEN OCCURS IN SUCH "CRACK HOUSES"

After a reference to appellant's residence as being a "crack house", defense counsel objected to use of the term by government witnesses, correctly pointing out that Section 856 does not refer to "crack houses", but rather proscribes the manufacture, distribution, or use of a controlled substance in a place, room, or enclosure. Tr. V. II. 11-12; A. 48-49. While recognizing the validity of counsel's argument, the Court nonetheless ruled that the government witnesses would not be prohibited from utilizing the term.

Thus, Sergeant Hickey, testifying as to the circumstances of the seizure of the residence on October 11th, made several references to procedures followed in "crack house" cases. Tr. V. II. 16-19; A.50-53. While it is suggested that this reference was improper, its prejudicial effect is not self-contained but instead

appreciated more when considered in conjunction with the later testimony of Officer David Shroud of the Metropolitan Police Department, who was called and qualified as an expert in the use and trafficking of drugs in the District of Columbia. Tr. V. II. 146; A. 55. Defense counsel's objection to much of Shroud's testimony was overruled, Tr. V. II. 146-154; A. 55-63, and Shroud was allowed to testify that the primary purpose of "crack houses" is the ingestion of crack; that sales of rental of paraphernalia often occur therein; that crack is often manufactured or cooked therein; and finally, most prejudicially, and without any evidence of relevance to this case, that acts of prostitution will often occur in such locations. Tr. V. II. 158-159, A. 67-68. While the trial judge did not allow Shroud to offer his opinion that appellant's residence was a "crack house", the inference was inescapable given the earlier testimony of Hickey and Shroud's own description.

The references of Sergeant Hickey to "crack houses" was, as an initial matter, irrelevant. This evidence had no tendency to "make the existence of any fact that [was] of consequence" more or less probable, Fed. R. Evid. 401, as Section 856 makes no reference nor requires any finding related to "crack houses". Even if it could be argued that these references of Hickey had some minimal relevance, such was clearly substantially outweighed by the prejudicial effect. Fed. R. Evid. 403.

While prejudice from Hickey's use of this term was self-evident, and indeed demonstrably illustrated by defense counsel's proffer concerning recent prejudicial publicity in the District referencing "crack houses", Tr. V. II. 4-10, A., it was Shroud's "expert" testimony that graphically brought home the prejudice, containing references to so-called "crack house" characteristics that had no relevance to this case. Shroud's "crack house" testimony not only irrelevant under the above analysis, but also was inadmissible as not satisfying the "helpfulness" standard of Fed. R. Evid. 702.

Rule 702 provides that expert testimony that "will assist the trier of fact to understand the evidence" is admissible. The standard of review of the admissibility of such evidence is abuse of discretion. United States v. Dunn, 846 F.2d 761, 763 (D.C.Cir. 1988). While federal courts have often allowed expert testimony concerning methods of narcotics distribution, id., the mere incantation of the word "narcotics" does not allow testimony unconstrained by Rule 702's "helpfulness" standard, which has been interpreted to require not only that the evidence be relevant and assist the trier of fact on a material issue, but that it also touch on subjects that are "beyond the ken of the average juror." United States v. Castillo, 924 F.2d 1227 (2d Cir. 1991).

Thus, the Second Circuit in Castillo held that the admission of expert testimony concerning, inter alia, the function of scales, that drugs are kept in plastic bags, that drugs are often sold out of vacant apartments, that drug dealers often make their customers snort cocaine etc., did not assist the jury, where the primary witness, an undercover officer, had already testified that these events occurred when he purchased drugs from the defendant. Such expert evidence is not needed where "`all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training. . .'". Id. at 1232 (citations omitted).

This Court has also recognized that, in addition to Rule 702, Rules 401 and 403 may also bar admission of expert testimony in narcotics cases. United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990)(error to admit expert testimony concerning Jamaicans alleged dominant role in District drug trade); United States v. Green, 548 F.2d 1261 (D.C. Cir. 1977)("Dubious relevance" of expert evidence concerning properties of the narcotic DMT and its psysiological effects outweighed by prejudicial impact and thus inadmissible under Rules 401, 403, and 702). Expert testimony, due to its alleged aura of trustworthiness, presents special dangers of unduly biasing a jury. Id. at 1270.

Here, Shroud's testimony concerning the so-called characteristics of "crack houses" was of "dubious relevance", Id. at 1268, providing no enlightenment to the jury as to whether the appellant violated Section 856. The jury had already heard detailed evidence not only as to the drugs, paraphernalia and number of individuals found at the residence on numerous occasions, but also from several lay witnesses who had observed drug usage in the house. Further, in his own testimony Shroud described in detail many of the items taken from xxxx Marion Sreet and the purposes of such items in drug usage or trafficking. Tr. V. II. 161-165; A. 70-74. Thus, "all the primary facts were accurately and intelligently" described and the jury was fully capable of evaluating the relevance thereof to the charges without the "crack house" references and the alleged "aid" of the "crack house characterics" evidence.

The admission of the prostitution aspect made this evidence even more odious. Nowhere was any evidence presented that acts of prostitution took place at appellant's residence, much less that he had any involvement or knowledge of such; yet, the jury was, in effect, invited to make such inference by the repeated references to appellant's residence as a "crack house", and Shroud's "expert" testimony that "crack houses" are used not only for the use, distribution, and manufacture of crack, but also as havens of prostitution. It is precisely this type of misuse of expert evidence that would seemed barred by this Circuit' decision in Doe, supra.

V. THE DISTRICT COURT MADE INCONSISTENT AND IRRECONCILABLE RULINGS ABOUT RELEVANT CONDUCT AND GROUPING

The District Court determined the appellant's offense level on Count two by including the drugs associated with the other counts, i.e. that the drugs seized in all the raids constituted relevant conduct for purposes of the distribution conviction on Count two. Presentence Report ¶ 30, adopted by the District Court, Sentencing Hearing Tr. 12, 20 (2/6/91); A. 24. The District Court also held that Count two should not be grouped with the other Counts. Sentencing Hearing Tr. 3-4, 20 (Feb. 6, 1991).

The basis for the District Court's relevant conduct ruling was U. S. S. G. § 1B1.3(a)(2) Presentence Report ¶ 30, adopted by the District Court, Sentencing Hearing Tr. 12, 20 (2/6/91). A. 24. That provision calls for aggregating drug quantities in counts that U.S.S.G. § 3D1.2(d) requires to be grouped together. It was fundamentally unfair for the District Court to hold appellant accountable for all drug quantities on the basis of a relevant conduct theory that is based on assumptions that all the Counts are to be grouped and then simultaneously not group those Counts with Count two when applying the multiple count grouping rules.

The District Court's relevant conduct and grouping rulings are inconsistent with each other and cannot be reconciled on the basis of the record of this case.

A. If the District Court's grouping decision is correct, then the District Court's sentence is greater than the maximum of the guideline sentencing range, and the case must be remanded to the District Court for resentencing.

If the District Court's grouping decision is correct, and there are two groups of counts, then the District Court cannot use the relevant conduct rule of U.S.S.G. § 1B1.3(a)(2) to determine the quantity of drugs to use in calculating the appellant's offense level on Count two. U.S.S.G. § 1B1.3(a)(2) applies only if U.S.S.G. § 3D1.2(d) requires that the counts be grouped.⁽⁶⁾ That condition is not met because the District Court has held that Count two is not to be grouped with the other Counts.

The District Court, therefore, must determine the quantity by application of the other provisions of § 1B1.3, primarily subsection (a)(1). Subsection (a)(1) makes defendant accountable for:

all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.

Count two charges appellant with distributing crack on June 15, 1988. Counts three, four, five, and six charge appellant with operating a crack house on dates subsequent to June 15, 1988. The appellant's conduct on those dates, therefore, is not involved in the preparation for, and is not otherwise in furtherance of, the offense in Count two because the distribution had already taken place when the conduct in those Counts occurred. It is not apparent how operating a crack house subsequent to June 15, 1988 would aid appellant to avoid detection or responsibility for the distribution offense. In any event, there is nothing in the record to suggest that appellant's conduct in Counts three, four, five, and six was part of an attempt to avoid detection or responsibility for the offense in Count two.

Appellant is accountable only for the drugs seized on June 15, 1988. The presentence report indicates that 190 milligrams of marijuana are involved. U.S.S.G. § 2D1.1(c)(19) provides an offense level of 6 for that quantity, so the offense level for the count two group would be 6. Because the offense level for that group is 10 levels less than the offense level for the group of counts one, three, four, five, and six, the offense level for the count two group is disregarded. U.S.S.G. § 3D1.4(c). Thus, appellant's combined offense level is 16, which, because he is in criminal history category III, yields a guideline sentencing range of 27-33 months.

Thus, if the District Court's grouping decision is correct, the District Court's sentence of 51 months is outside of the guideline range -- i.e., the District Court's sentence is a departure. Because there is nothing in the record indicating that the District Court ever intended to depart upward -- and nothing in the record that would provide a basis for such a departure -- the case must be remanded.

B. If the District Court's relevant conduct decision is correct, the District Court computed the wrong combined offense level, and the case must be remanded to the District Court for resentencing.

The presentence report (at ¶ 30; A. 24) citing U.S.S.G. § 1B1.3(a)(2), found that "the amount of drugs in all six counts is equivalent to 56.01 grams of heroin", a finding adopted by the District Court, Sentencing Hearing Tr. 12, 20 (Feb. 6, 1991). The guideline provision relied upon for that finding -- § 1B1.3(a)(2) -- calls for aggregating quantities that were a part of the same course of conduct as, or part of a common scheme or plan including, the offense of conviction. U.S.S.G. § 1B1.3(a)(2) applies, however, "solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts". Thus, in order for the District Court to aggregate drug quantities in this case under § 1B1.3(a)(2), the District Court would have had to conclude that U.S.S.G. § 3D1.2(d) requires grouping Count two with the other Counts.⁽⁷⁾

If all Counts constitute a single group, then the offense level for the group is "the offense level corresponding to the aggregated quantity", U.S.S.G. § 3D1.3(b), which the District Court determined to be level 20. Presentence Report ¶ 30; A.24. The guideline sentencing range for level 20, criminal history category III, is 41-51 months. The District Court's sentence, 51 months, is at the top of that range (and at the bottom of the range that the District Court found to be applicable). Because there is nothing in the record to indicate that the District Court would have imposed a 51 month sentence if it were sentencing using the lower range, the cased must be remanded. United States v. Williams, 891 F.2d 921 (D.C. Cir. 1989).

VI. THE DISTRICT COURT ERRED IN CONCLUDING THAT IT LACKED THE AUTHORITY TO DEPART DOWNWARD.

Appellant asked the District Court to depart because of the 18 month delay in imposing sentence -- a delay sought by the government because it was not ready for sentencing -- arguing that had there been no delay, appellant would have been able to serve time on a parole revocation concurrently with his sentence in this case, a factor not considered by the Sentencing Commission in formulating the guidelines. Tr. Sentencing Hearing Tr. 4-6 (Feb. 6, 1991). The District Court held that this was not a basis for a departure downward. Id. at 12. The District Court erred in this conclusion.

A. A party may appeal a sentencing court's refusal to depart if the refusal is based on a finding that the sentencing court lacked the authority to depart.

The sentencing court is required by 18 U.S.C. § 3553(b) to impose a sentence called for by the guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result" in a different sentence. The cases are clear that a party may not appeal a refusal to depart if the sentencing court acknowledges that it has the authority to depart. See T. Hutchison & D. Yellen, Federal Sentencing Law and Practice § 9.12 (Supp. 1991).

A party may appeal a refusal to depart, however, if the sentencing court's refusal is based upon a conclusion that the court lacks authority to depart. See United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990). See also cases cited in T. Hutchison & D. Yellen, Federal Sentencing Law and Practice § 9.12 at n.35 (Supp. 1991); United States v. Adeniyi, 912 F.2d 615, 619 (2d Cir. 1990); United States v. Garcia-Garcia, 927 F.2d 489 (9th Cir. 1991). The District Court in this case found that it lacked authority to depart. Sentencing Hearing Tr. at 12 (Feb. 6, 1991).

B. The District Court's determination that it lacked authority to depart is reviewed de novo.

Whether the sentencing court has authority to depart is a question of law, and the sentencing court's decision is, therefore, reviewed de novo. See cases cited in T. Hutchison & D. Yellen, Federal Sentencing Law and Practice § 9.12 at n.42 (Supp. 1991); United States v. Lowden, 900 F.2d 213, 217 (10th Cir. 1990). Cf. United States v. Burns, 893 F.2d 1345 (D.C. Cir. 1990) (plenary review of district court determination that the Sentencing Commission adequately considered a factor).

C. The District Court had authority to depart downward under the facts and circumstances of this case.

A sentencing court is authorized to depart if there is "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result" in a different sentence. 18 U.S.C. § 3553(b). In determining if a circumstance has adequately been considered, a sentencing court can consider only the "guidelines, policy statements, and official commentary of the Sentencing Commission." Id.

At the time he committed the offenses involved in this case, appellant was on parole for a District of Columbia offense, a fact that moved him from criminal history category II to criminal history category III and raised his guideline range from 46-57 months to 51-63 months. The District of Columbia Parole Board, as a result of this case, revoked appellant's parole.

Although Fed. R. Crim. P. 32(a) requires the sentencing court to impose sentence "without unnecessary delay", there was in this case an 18 month delay in imposing sentence due to the government's inability to be ready for sentencing. The presentence report was completed, and defendant was ready for the imposition of sentence, in late August 1989. Had defendant been sentenced promptly, as required by Rule 32(a), the District Court would have had the option of running defendant's sentence concurrently with the defendant's term for revocation of his District of Columbia parole.

Although U.S.S.G. § 5G1.3 calls for consecutive sentences when a defendant is sentenced for an offense committed while the defendant is serving an unexpired term of imprisonment, the Sentencing Commission has indicated that when a defendant is on parole status, the District Court can run the sentence concurrently or consecutively. U.S.S.G. § 5G1.3 comment. ("Where the defendant is serving an unexpired term of imprisonment, but did not commit the instant offense while serving that term of imprisonment, the sentence for the instant offense may be imposed to run consecutively or concurrently with the unexpired term of imprisonment").

Because of the long delay in imposing sentence, the appellant's term for revocation of his District of Columbia parole had expired prior to his sentencing and the District Court lost the option to impose a concurrent sentence. The District Court could have achieved the result authorized by § 5G1.3, however, by departing downward based on the length of appellant's incarceration for revocation of District of Columbia parole.⁽⁸⁾

There is nothing in the guidelines, policy statements, or official commentary that indicates that the Sentencing Commission has considered that an extended delay in imposing sentence may deprive the sentencing court of a sentencing option. See United States v. Weaver, 920 F.2d 1570 (11th Cir. 1991) (affirming departure based in part on the action of the United States Parole Commission in setting back the defendant's parole release date because of the new offense for which the defendant was being sentenced). ("Since the guidelines do not consider the parole eligibility extension in the sentencing calculation, we hold that it is permissible for a district court to depart from the guidelines to account for the Parole Commission's extension of a prisoner's parole range", at 1576).

Because this case presents circumstances not adequately considered by the Sentencing Commission in formulating the guidelines, the District Court had a basis for departure downward, and the case should be remanded for the District Court to determine whether such a departure is appropriate.

CONCLUSION

Based on the foregoing appellant submits this Court should enter an order reversing his conviction on all Counts and remand this case to the District Court for a new trial. Alternatively, this Court should enter an order remanding this case for resentencing.

CERTIFICATE OF SERVICE

I hereby certify that 2 copies of the foregoing Brief of Appellant and 1 copy of the accompanying Record Entries has been mailed, first class, postage prepaid to the United States Attorney's Office, Appellate Division, 555 4th Street, NW, Washington, DC 20001 this 12th day of September, 1991.

Robert L. Tucker

Assistant Federal Public Defender

625 Indiana Avenue, NW

Suite 550

Washington, DC 20004

1. Defense counsel objected several times in the trial to the vague and incomprehensible provisions of Section 856. For instance, see Tr. II. 198-214; A. 75-90. At times counsel was objecting to the uncertainty of its provisions as applied to the multiple counts; at other times counsel objected to vagueness in general due process terms. In denying counsel's post-trial vagueness motion, the court made reference to a District Court opinion upholding Section 856 against a vagueness argument. United States v. Milani, 739 F.Supp. 216 (S.D.N.Y. 1990). However, Milani merely denied the defendant's pretrial motion, holding that Section 856 was not unconstitutionally vague on its face. Milani specifically noted that the issue of the constitutionality of Section 856 as applied to the particular facts of the case would have to await development of the facts at trial. This is precisely appellant's argument, namely, that Section 856 is unconstitutional as applied to the personal usage of a controlled substance in the home and that the jury could easily had convicted appellant on such a theory in light of the instructions and the facts, as developed at trial.

2. In discussing appellant's motion for judgment of acquittal on count six the District Court seemed to recognize that the meaning of "open" in the statute was not clear. Tr. II. 220-201; A. 77-78. Later, the Court again expressed curiosity as to the meaning of "open", remarking that it must mean more than the mere isolated opening of a door for someone who is later found using a controlled substance in the premises. Tr. III. 98; A. 97. The Court's remarks seem to be consistent with an understanding or interpretation, as contended here, that in order for Section 856(a)(1)'s prohibition against "opening" to meaningfully convey notice as to the conduct forbidden, it must be interpreted as encompassing a requirement that the "opening" be primarily, or substantially, for the prohibited purpose. Regardless of these comments, the Court failed to give the jury any guidance as to the meaning of "open" in the context of Section 856(a)(1) or as to the temporal relationship of the term to the mental element of purpose required for a violation of the statute. Tr. V. IIIA. 18-20; A. 101-103.

3. When testifying over defense objection, see Argument IV, infra, to characteristics of "crack houses", Officer Shroud did note that "crack houses" are houses or apartments whose "main purpose is used to ingest crack. In these houses, the people who are crack users will come in just for the purpose of ingesting it." Tr. V. II. 158; A. 67.

4. It appears that Section 856 was derived or modeled after California Health and Safety Code Sections 11365 et seq. See U.S. Department of Justice Handbook on the Anti-Drug Abuse Act of 1986, p. 186. In particular Section 856(a)(1)'s "open and maintain" provisions seems to mirror, Section 11366 of the California Code, while Section 856(a)(2)'s "manage and control" provision seems to derive almost verbatim from Section 11366.5 of the California Code. While not dispositive, it is noteworthy that these two provisions of the California Code would avoid the irrational result of application to the mere possession or use of a controlled substance in one's home however minimal the amount, in that the maximum penalty provided under the California Code is one year, presumably consistent with that provided for simple possession of a controlled substance in California.

5. It could be said that appellant was still the "owner" after execution of the seizure warrant in that he still had legal title since the property had not yet been forfeited. However, it would appear that the interest required by Section 856(a)(2) and described as being an "owner, lessee, agent, employee, or mortgagee, envisions a degree of control not evident in the situation where the control of the property falls into the hands of another. An interpretation of liability based on ownership without control would seem to be inconsistent with both the intent and the express provisions of Section 856(a)(2).

6. § 1B1.3(a)(2) applies "solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts". The Sentencing Commission used the subjunctive voice because the relevant conduct rule of subsection (a)(2) "does not require the defendant, in fact, to have been convicted of multiple counts." U.S.S.G. § 1B1.3 comment. (n.2). See United States v. White, 888 F.2d 490, 497 (7th Cir. 1990).

7. The attorney for the government acknowledged the unfairness and inconsistency in this regard and took the position that the combined offense level should be 20, based on all counts being grouped together rather than 22 as recommended in the Presentence Report. Sentencing Hearing Tr. 23-24 (1/29/91) A. 107-108. The Court adopted for the approach taken in the Presentence Report. Sentencing Hearing Tr. 2-4; A. 109-111 (2/6/91).

8. It is not unreasonable to believe that the District Court, if it had believed that it had the power to depart, may indeed have done so. The Court determined that the applicable guideline range was 51-63 months. Since the Court felt that it could not depart on the basis of the delay, it was constrained to stay within this range. Based on appellant's age and "excellent record in the past", the fact that he had no involvement with the law until he was in his 60's and had successfully raised 8 children under difficult circumstances, the Court believed the minimum sentence of 51 months was appropriate. However, the Court also recognized that the delay in sentencing had deprived appellant of a chance to have this sentence run concurrently with the revocation time. In light of the above it is submitted that the Court may have chosen to depart, at least to the extent of the 5-6 months that appellant had served on the revocation, head it believed it had the power to do so. Sentencing Hearing Tr. 10-14 (2/6/91); A. 117-120.