UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________________________
No.
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UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxxxxxxxxxxxx, Defendant-Appellant.
_________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________________
BRIEF FOR APPELLANT
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JURISDICTION
The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from that court's final judgment (entered October 3, 1996) having been filed on October 9, 1996, this Court has jurisdiction under 28 U.S.C. 1291.
ISSUES PRESENTED FOR REVIEW
I. Whether the district court impaired appellant's Confrontation Clause right to expose witness bias when it
instructed the jury, incorrectly, that the U.S. Attorney's office had no jurisdiction to prosecute its juvenile witnesses.
II. Whether the district court violated appellant's constitutional rights to present a defense and to compulsory process when it 1) excluded defense testimony from his civil attorney and his co-defendant brother of a prior dispute between the police and the xxxxxxxxs that established a retaliatory motive for what the defense contended was police manipulation of evidence; and 2) refused to continue the case long enough for Marshals to obtain the presence of a defense witness who had thrown his subpoena on the ground.
III. Whether the district court violated appellant's Confrontation Clause rights by 1) admitting into evidence the videotaped hearsay statements of two of the juvenile witnesses; and 2) allowing the prosecutor to rehabilitate one of those juveniles with prior consistent hearsay from her grand jury testimony.
IV. Whether the imposition of a special assessment greater than that authorized at the time of the alleged offenses violated the Ex Post Facto Clause.
STATUTES AND RULES
The pertinent statutes and rules are reproduced in the Addendum.
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition in the Court
Below.
On April 2, 1996, a federal grand jury returned an indictment charging Melvin xxxxxxxx and his brother, Troy xxxxxxxx, with possessing with intent to distribute more than 5 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii) (Count One), and employing a minor to commit the same drug offense, in violation of 21 U.S.C. 861(a)(1) (Count Three). The indictment charged Melvin xxxxxxxx alone with carrying a firearm during a drug trafficking offense (Count Two), carrying a pistol without a license (Count Four) and possession of unregistered ammunition (Count Five). (Appx:23-25). (1)
A jury trial commenced before the Honorable Joyce Hens Green on June 25, 1996. On July 8, 1996, the jury convicted both xxxxxxxxs on the drug counts (Counts One and Three) but acquitted Melvin xxxxxxxx on all gun counts (Counts Two, Four and Five). The court sentenced Melvin to 188 months in prison on Counts One and Three (concurrent), 8 years of supervised release on Count Three (with 5 years of concurrent supervised release on Count One) and a $200 special assessment. (Appx:26-29; 10/1/96:37-38). B. Statement of Facts
This case arose out of the execution of a search warrant on March 5, 1996, at xxxx West Virginia Avenue, N.E., Apartment #4. (2) Inside the small second-floor apartment, the police found 8 people, 2.3 grams of cocaine base in 16 ziplocs on a table, 31 grams of cocaine base in 202 ziplocs hidden in a ceiling light fixture, and a pistol hidden in the cushion of a chair. Of the 8 people in the apartment, three were adults (appellant Melvin xxxxxxxx, co-appellant Troy xxxxxxxx, andxxxxxxx Davenport) and five were juveniles (Michael xxxxxxx, Anthony xxxxxx, Lavon xxxx, Kellie xxxxxl, and Catherine xxxxxxx). The purpose of the gathering was a party celebrating Kellie xxxxxxxxl's birthday. That night, Detective Tyronexxxxxxx conducted videotaped interviews of the two female juveniles and one of the male juveniles (Michael xxxxxxx). He decided to release both females and to present all the males for charging and "work out with the U.S. Attorney's Office and the Corporation Counsel as to what to do for the next step." (6/25/96pm:51). Davenport and the three male juveniles were subsequently no-papered. Thus, although Michael xxxxxx's fingerprints were on the clip of the gun and Lavon xxxxx's fingerprints were on the light fixture, and no fingerprints from either xxxxxxxx were found on either the gun or the drugs, (3) only the xxxxxxxxs were prosecuted.
1. The Government's Evidence.
The government presented its case through officers involved in the search, a drug expert, the landlord, the videotaped statements of two of the juveniles (Michael xxxxxxx and Kellie xxxxxxxx) and live testimony from three of the juveniles (Michael xxxxxxx, Anthony xxxxxxxx and Kellie xxxxxxxx). The evidence from the juveniles was critical to the government's case. Although there was independent evidence linking Melvin xxxxxxxx to the apartment, the inference that he exercised dominion and control over the drugs found therein and employed the minors to distribute them was extremely weak without the juveniles' testimony.
a. The Evidence Linking Melvin xxxxxxxx to the Apartment.
The building's landlord testified that he had rented the apartment to Melvin xxxxxxxx a year earlier but that he had asked all the tenants to move when he decided to sell the building. Melvin was supposed to have been moving out on the day of the search. The landlord was not sure if the keys had been turned in. (6/26/96:129-33).
Seizing officer John Eisel testified that he seized an ID card in Melvin's name from
the table beside the door. (6/26/96:72). Eisel further testified that he saw Detective
Delpo seize a black leather jacket from the couch, take the coat to the window, and call
out, "Melvin, is this your jacket?" to the people detained outside. When a voice
answered yes, Delpo took the coat downstairs out of Eisel's sight. When Delpo returned, he
gave the coat to Eisel to seize. In the pockets, Eisel found $30, a pager and a set of
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