ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No.  and xxxxxxxxxxxxxx

Consolidated Cases

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxx, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________



BRIEF FOR APPELLANT



_________________________________________________________________









A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500







District Court

Cr. No. xxxxxxxxx

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant, Clyde Karl xxxxx, hereby states as follows:

A. Parties and Amici:

The parties below were defendant Clyde Karl xxxxx, defendant Iran Ramsay, defendant Sylvester Ernest Cole, Jr., and the United States of America. The parties to this appeal are defendant-appellant Clyde Karl xxxxx and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review:

These consolidated appeals seek review of the judgment of the district court (the Honorable June L. Green), dated October 31, 1996, adjudging appellant guilty after a jury trial on the charge of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii), and review of the district court's denial, dated May 13, 1997, of appellant's Motion for Writ of Error Coram Nobis to Vacate the Judgment and for a New Trial.

In this appeal, appellant seeks review of the district court's ruling on January 17, 1991, invoking the Fifth Amendment privilege on behalf of a defense witness, its ruling on October 31, 1996, applying the 1995 version of the Sentencing Guidelines in violation of the ex post facto clause, and its ruling on May 13, 1997, finding that appellant's trial counsel delivered effective assistance.



C. Related Cases:

There are no related cases. This case has not previously been before this Court.

TABLE OF CONTENTS





TABLE OF AUTHORITIES iii



STATUTES AND RULES 1



JURISDICTION 1



ISSUES PRESENTED FOR REVIEW 1



STATEMENT OF THE CASE 2



A. Nature of the Case, Course of Proceedings, and

Disposition in the Court Below 2



B. Statement of Facts 3



i. The Evidence at Trial 3



ii. Preclusion of Sean Ashman's Testimony 5



SUMMARY OF ARGUMENT 8



ARGUMENT



I. THE TRIAL COURT'S INVOCATION OF THE FIFTH AMENDMENT PRIVILEGE ON BEHALF OF A DEFENSE WITNESS WHO WOULD HAVE OFFERED MATERIAL AND FAVORABLE EVIDENCE VIOLATED THE CONSTITUTION'S COMPULSORY PROCESS CLAUSE AND DUE PROCESS

CLAUSE 10



A. Standard of Review 10



B. The Trial Court Prevented Appellant from Presenting His Version of the Facts to the Jury By Invoking the Fifth Amendment Privilege On Behalf of Defense

Witness Sean Ashman 10



II. TO THE EXTENT THAT APPELLANT'S COUNSEL FAILED TO ADEQUATELY PRESERVE THE SIXTH AMENDMENT AND DUE PROCESS

VIOLATION FOR APPELLATE REVIEW, HE WAS INEFFECTIVE 14



A. Standard of Review 14



B. To the Extent the Government May Contend that Mr. Ashman Did Not Testify Because Defense Counsel Failed to Call Him As a Witness Upon Learning That Ashman's Attorney Advised Ashman Not to Testify,

Counsel Was Ineffective 15

III. THE DISTRICT COURT PLAINLY VIOLATED THE EX POST FACTO CLAUSE WHEN IT APPLIED THE 1995 VERSION OF THE SENTENCING GUIDELINES THAT RESULTED IN A HARSHER PENALTY THAN WOULD THE 1989 VERSION IN EFFECT AT THE TIME THE OFFENSE WAS

COMMITTED 17



A. Standard of Review 17

B. Application of the Two-Level Adjustment for "Using a Minor" Plainly Violated the Ex Post Facto Clause Where the Offense Was Committed in August, 1990 and the Adjustment Was Not Added to the Sentencing Guidelines Until November, 1995 18



IV. MR. xxxxx'S COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE EX POST FACTO CLAUSE VIOLATION 21



A. Standard of Review 21

B. Mr. xxxxx Was Prejudiced By His Lawyer's Failure to Object to the Application of the 1995 Version of the Guidelines 21



CONCLUSION 23



CERTIFICATE OF LENGTH 25



CERTIFICATE OF SERVICE 25

TABLE OF AUTHORITIES



CASES



Bigby v. United States Immigration and Naturalization Service,

21 F.3d 1059 (11th Cir. 1994) 12, 16



*Chambers v. Mississippi, 410 U.S. 284 (1973) 10, 11, 14



Chapman v. California, 386 U.S. 18 (1967) 14



Couch v. United States, 409 U.S. 322 (1973) 11



*Miller v. Florida, 482 U.S. 423 (1987) 18, 20, 22



*State v. McGuire, 253 S.E.2d 103 (S.C. 1979) 11



Strickland v. Washington, 466 U.S. 668 (1984) 15, 16, 21



*United States v. Aman, 31 F.3d 550 (7th Cir. 1994) 21



*United States v. Bowe, 698 F.2d 560 (2d Cir. 1983) 11, 16



United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.),

cert. denied, 117 S. Ct. 218 (1996) 17



United States v. Catlett, 97 F.3d 565 (D.C. Cir. 1996) 21



United States v. Clark, 8 F.3d 839 (D.C. Cir. 1993) 18, 20, 22



*United States v. Colyer, 571 F.2d 941 (5th Cir. 1978)

12, 13, 16



United States v. Dean, 55 F.3d 640 (D.C. Cir. 1995),

cert. denied, 116 S. Ct. 1288 (1996) 14



United States v. Fennell, 53 F.3d 1296 (D.C. Cir. 1995) 22, 23



*United States v. Gilberg, 75 F.3d 15 (1st Cir. 1996) 20



*United States v. Heater, 63 F.3d 311 (4th Cir. 1995),

cert. denied, 116 S. Ct. 796 (1996) 20



*United States v. Hoster, 988 F.2d 1374 (5th Cir. 1993) 21



United States v. Lam, 924 F.2d 298 (D.C. Cir. 1991) 18, 20, 22



*United States v. Mayes, 512 F.2d 637 (6th Cir. 1975) 11, 16



United States v. Molina, 952 F.2d 514 (D.C. Cir. 1992)

16, 18, 20, 22



United States v. Monroe, 990 F.2d 1370 (D.C. Cir. 1993) 19



United States v. North, 910 F.2d 843 (D.C. Cir. 1990) 14



United States v. Olano, 507 U.S. 725 (1993) 17



*United States v. Orr, 68 F.3d 1247 (10th Cir.),

cert. denied, 116 S. Ct. 747 (1995) 20



United States v. Saro, 24 F.2d 283 (D.C. Cir. 1994) 17, 21



United States v. Saucedo, 950 F.2d 1508 (10th Cir. 1991) `7



United States v. Schmidt, 816 F.2d 1477 (10th Cir. 1987) 12, 16



United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993) 10



United States v. Streater, 70 F.3d 1314 (D.C. Cir. 1995) 16



United States v. Thornton, 733 F.2d 121 (D.C. Cir. 1984) 11



United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) 13



*Washington v. Texas, 388 U.S. 14 (1967) 10, 11, 14



STATUTES AND RULES



U.S. Const. Art. I, 9, cl. 3 18



U.S. Const. Amend. IV 10



U.S.S.G. 1B1.11(b)(1) 19, 20, 22



U.S.S.G. 2D1.1 19



U.S.S.G. 3B1.4 9, 19



U.S.S.G. 3C1.1 19



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________



No.  and xxxxxxxxxxx



_________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



CLYDE KARL xxxxx, Defendant-Appellant.



_____________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________



BRIEF FOR DEFENDANT-APPELLANT

CLYDE KARL xxxxx

_____________________________________________



STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231 and 28 U.S.C. 1651. A timely notice of appeal having been filed, this Court has jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742(a).

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court's invocation of the Fifth Amendment privilege against self-incrimination on behalf of a defense witness whose testimony would have completely exculpated appellant violated appellant's Sixth Amendment and Due Process right to present his version of the facts to the jury.

II. Whether, to the extent that appellant's counsel failed to adequately preserve the Sixth Amendment and Due Process violation for appellate review, appellant received ineffective assistance of counsel.

III. Whether the district court's application of the 1995 version of the Sentencing Guidelines plainly violated the ex post facto clause where it resulted in a harsher penalty than would application of the 1989 version in effect at the time the offense was committed.

IV. Whether defense counsel rendered ineffective assistance by failing to object to the ex post facto clause violation.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On August 30, 1990, a grand jury returned an indictment charging Clyde Karl xxxxx and two co-defendants (Sylvester Ernest xxxxx, Jr., and Iran xxxxxx) with possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii) (A. at 14). (1)

Co-defendants Sylvester Ernest Cole, Jr. and Iran Ramsay entered guilty pleas on January 16, 1990, to simple possession of cocaine (1/16/91am at 6, 11). The charges against appellant xxxxx were heard by a jury commencing on January 16, 1991, before the Honorable June L. Green. Mr. xxxxx failed to return to court the next day (1/17/91 at 3-10). The trial continued in his absence. That afternoon, the jury returned a verdict of guilty.

Mr. xxxxx was a fugitive for five years. He was returned to the District of Columbia on July 9, 1996. On October 28, 1996, Mr. xxxxx filed a Motion for Writ of Error Coram Nobis to Vacate the Judgment and for a New Trial on the ground that, inter alia, his trial counsel had not provided effective assistance (A. at 25). The district court denied the motion on May 13, 1997 (A. at 72, 73). Mr. xxxxx filed a timely notice of appeal, and the case was docketed as 97-3070 (A. at 84).

On October 31, 1996, Mr. xxxxx was sentenced to 97 months imprisonment to be followed by a five-year term of supervised release. A $50.00 special assessment was imposed (A. at 79). Mr. xxxxx filed a timely notice of appeal, and the case was docketed as 96-3152 (A. at 83).

B. Statement of Facts

i. The Evidence at Trial

Shortly after midnight on August 8, 1990, officers of the Metropolitan Police Department executed a search warrant at 4323 New Hampshire Avenue, N.W. (1/16/91pm at 15). Moments after the officers announced their presence, they heard the sound of footsteps moving away from the door (1/16/91pm at 22, 40). An officer standing behind the house heard the sound of glass breaking at a second floor window (1/16/91pm at 16). Nothing was thrown from the window. Officer Jamie Anderson ran upstairs to the second floor rear bedroom. He testified that he observed co-defendant Iran Ramsay on the bed and observed appellant xxxxx and juvenile Sean Ashman in an adjacent porch making throwing motions toward a shattered window (1/16/91pm at 27-28, 44). The screen behind the broken glass was intact, however, and scattered at their feet were 11 ziplock bags of crack (1/16/91pm at 28, 30).

Between nine and thirteen people were in the house at the time that the warrant was executed, some downstairs, some on the second floor, and some in the attic (1/16/91pm at 46, 61; 1/17/91am at 51). The officers seized a total of 12.828 grams of crack: 11 ziplocks of crack (4.654 grams) from the porch off the second floor rear bedroom, two ziplocks of crack (2.300 grams) from the nightstand in the adjacent bedroom, another 27 ziplocks of crack (4.348 grams) from the nightstand, and three ziplocks of crack (1.526 grams) from the second floor bathroom (1/16/91pm at 54-55, 75). There was no evidence that Mr. xxxxx had any connection to the house other than as a visitor (1/16/91pm at 68).

The defense cross-examined Officer Anderson at length about the lighting conditions and his ability to observe (1/16/91pm at 35-36, 42-43, 47-48, 49-51). One of the residents of xxx New Hampshire Avenue, N.W., testified in the defense case that the house was a rooming house (1/17/91am at 32). She testified that the second floor rear bedroom and adjacent porch had been rented by Sean Ashman (1/17/91am at 26). Four people lived in the house at the time, and Mr. xxxxx had inquired about renting a spare bedroom on the second floor (1/17/91am at 25, 26).

ii. Preclusion of Sean Ashman's Testimony

Appellant sought to call Sean Ashman as a witness in the defense case (1/16/91pm at 7). Mr. Ashman was a sixteen-year-old who, Officer Anderson alleged, was seen making throwing motions toward the window along with Mr. xxxxx (1/16/91pm at 27-28, 44). Mr. Ashman had been arrested on delinquency charges as a result of the August 8, 1990 raid. Soon thereafter, Mr. Ashman was charged with an unrelated murder and prosecuted as an adult in the Superior Court (1/16/91am at 24-25; 1/16/91pm at 6; 10/31/96 at 7). The murder charge was pending against Mr. Ashman at the time of Mr. xxxxx's trial (1/16/91am at 24-25).

Beginning on the first morning of the trial, defense counsel alerted the district court that he "would like to offer [Mr. Ashman] as a witness" (1/16/91am at 24; 1/16/91pm at 7), and that Mr. Ashman might have a Fifth Amendment privilege and would need the advice of counsel (id.). From the beginning, the district court signalled that it would not permit Mr. Ashman to testify as a defense witness (emphasis added):

The Court: [Addressing the defendant's oral pro se motion for a continuance so that he could proceed with a retained attorney] . . . I might say that there's no question in the Court's mind that your two witnesses [Mr. Ashman and former adult co-defendant Iran Ramsay] have Fifth Amendment rights and would not be able to be called to testify in your behalf anyhow. Certainly the juvenile couldn't be called.



Defendant: Everybody just leading me into this kind of situation.



The Court: Well, there's nobody else, paid or otherwise, that could do anything about that. That is something that the Constitution of the United States gives the right to those people, and there isn't anybody who can force them to testify. In fact, I would have great problems accepting a plea from somebody -- I mean testimony from somebody. (1/16/91pm at 3-4) (emphasis added)



* * *



The Court: I won't be here at 12:30, because I'll be going out to lunch, that is, if this witness gets here and gets finished, but I am assuming that this attorney will talk with the individual. Of course, it has to be the individual's claim rather than anybody else's for him, and he will explain to him where he stands.

If he elects to take the stand, I will explain it to him again, because I think it absolutely to be a ridiculous thing for him to do, to take the stand under the circumstances. He could do himself lots of harm. I have never, ever known a situation with a person with that kind of thing hanging over him who would testify or should testify in another matter. (1/17/91am at 40-41).Both defense counsel and government counsel urged the court to obtain counsel to advise Mr. Ashman (1/16/91pm at 7-8). The district court agreed to the prosecutor's request that Mr. Ashman be advised by "his own attorney" who represented him in the pending murder charge (1/16/91pm at 7-8). That attorney promised to consult with Mr. Ashman during the lunch break on the second and final day of the trial, but then failed to appeared (1/17/91am at 16, 42).

That afternoon, defense counsel requested a recess so that he might track down the attorney at the Superior Court (1/17/91am at 54). The prosecutor conceded that defense counsel might be allowed "an hour or two" to find the attorney (1/17/91am at 55). The district court ruled that Mr. Ashman would not be a proper defense witness and, therefore, refused to recess the trial to allow Mr. Ashman to be advised by his attorney:

The Court: I think we've gone far enough. In the first place, as I believe you know how I feel about the idea, any possibility of his testimony anyway, I cannot believe that a juvenile with charges such as he has hanging over his head should take any chance under his Fifth Amendment rights, and I don't think that he would be a proper witness in his own, for his own sake. That's, that's the situation.

So that the Court feels that it is so unlikely that his attorney would allow him to take the stand and testify in this case that I think it's a total exercise in futility, and I think I've made that clear from the beginning. So your motion is denied.

(1/17/91 at 54-55) (emphasis added). Although Mr. Ashman sat in the cellblock behind the courtroom during both days of the trial proceedings, he was never advised of his privilege and was never asked whether he wished to invoke or waive the privilege (1/16/91am at 24; 1/16/91pm at 6; 1/17/91am at 42).

At his sentencing hearing five years later, Mr. xxxxx again sought Mr. Ashman's testimony. (2) This time, the court appointed counsel to advise Mr. Ashman (10/29/96 at 6). Mr. Ashman's counsel was of the opinion that Mr. Ashman did have a privilege under the Fifth Amendment (10/31/96 at 6). Against counsel's advice, Mr. Ashman waived his privilege and testified (10/31/96 at 10).

Mr. Ashman further testified that he was willing to waive his privilege "[b]ecause I know that this man is innocent, because I seen it with my very eyes, that he was in the hallway at the time that the police arrested both of us. He wasn't selling any drugs." (10/31/96 at 16). Mr. Ashman testified that his attorney never met with him in 1991 to discuss waiving or asserting his privilege at Mr. xxxxx's trial (10/31/96 at 17-18).

Mr. Ashman testified that on August 8, 1990, he had been selling crack at xxx New Hampshire Avenue, N.W. (10/31/96 at 12). When he heard the police banging on the door he ran to the porch adjacent to the second floor bedroom (10/31/96 at 13-14). He and two men who lived in the house -- "Blocker" and "Boa" -- tried to throw the crack out the window (10/31/96 at 14). Mr. xxxxx did not help them (10/31/96 at 14, 27). In fact, Mr. xxxxx was not even on the porch (10/31/96 at 13-14). After he was arrested, Mr. Ashman saw Mr. xxxxx for the first time in the hallway outside the bedroom (10/31/96 at 14). Before this time, Mr. Ashman had never seen or met Mr. xxxxx (10/31/96 at 12).

SUMMARY OF ARGUMENT

The trial court effectively denied appellant his Sixth Amendment and Due Process rights to present a defense by invoking the Fifth Amendment privilege on behalf of defense witness Sean Ashman. The Fifth Amendment privilege must be invoked or waived by the witness, and cannot be invoked or waived by the judge. Mr. Ashman's testimony that appellant did not possess crack with the intent to distribute and did not try to discard drugs when the police raided the house, would have directly contradicted the police officer's testimony and would have been material and favorable to the defense.

To the extent the government may contend that Mr. Ashman did not testify as a result of defense counsel's decision not to call him as a witness because his attorney advised him that he should not testify, that claim is contradicted by the record. Even if that claim is supported by the record, since the decision whether to invoke or waive the Fifth Amendment privilege rests with the witness and not with his lawyer, such a decision would be sufficient to establish deficient representation under Strickland v. Washington, 466 U.S. 668 (1984).

Application of the two-level adjustment for "using a minor" (U.S.S.G. 3B1.4), which was added to the Sentencing Guidelines after the date of appellant's offense, plainly violated the ex post facto clause. The error prejudiced Mr. xxxxx because it resulted in a 19-month increase in his sentence.

Even if the ex post facto violation were not sufficiently "obvious" to qualify as "plain error," it was obvious enough that defense counsel failed to meet the Strickland standard of competence in failing to object.

ARGUMENT

I. THE TRIAL COURT'S INVOCATION OF THE FIFTH AMENDMENT PRIVILEGE ON BEHALF OF A DEFENSE WITNESS WHO WOULD HAVE OFFERED MATERIAL AND FAVORABLE EVIDENCE VIOLATED THE CONSTITUTION'S COMPULSORY PROCESS CLAUSE AND DUE PROCESS CLAUSE.

A. Standard of Review

Evidentiary decisions generally are reviewed to determine whether the trial court abused it discretion. In this context, "that discretion is constrained by the defendant's Sixth Amendment right to compulsory process." United States v. Simpson, 992 F.2d 1224, 1230 (D.C. Cir. 1993).

B. The Trial Court Prevented Appellant from Presenting His Version of the Facts to the Jury By Invoking the Fifth Amendment Privilege On Behalf of Defense Witness Sean Ashman.

The district court's ruling that Sean Ashman would not be a "proper witness" prevented appellant from presenting his version of the facts to the jury in violation of the Fifth and Sixth Amendments. The Sixth Amendment's Compulsory Process clause (3) entitles every criminal defendant to present a defense to the charges and to procure testimony in his or her favor. Washington v. Texas, 388 U.S. 14, 19 (1967); Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The Supreme Court has explained the significance of the Compulsory Process clause:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies.

Washington, 388 U.S. at 19. "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers, 410 U.S. at 302. This right is a "fundamental element of due process." Id.

In certain circumstances, a defendant's right to present a defense may be trumped where a witness' testimony would be self-incriminatory and the witness invokes the privilege bestowed by the Fifth Amendment to be free from compelled incriminatory statements. United States v. Thornton, 733 F.2d 121, 125 (D.C. Cir. 1984). The Fifth Amendment privilege against compelled self-incrimination is a personal privilege, Couch v. United States, 409 U.S. 322, 327 (1973), however, and may not be invoked or waived by anyone other than the witness. It cannot be invoked or waived by the judge on behalf of the witness. United States v. Bowe, 698 F.2d 560, 565 (2d Cir. 1983) (case remanded for hearing on motion to suppress where judge invoked privilege on behalf of witness who stated that she did not wish to testify but did not invoke Fifth Amendment privilege); United States v. Mayes, 512 F.2d 637, 649 (6th Cir. 1975) ("[I]n the final analysis the controlling decision [whether to invoke or waive a Fifth Amendment privilege] is that of the witness himself."); State v. McGuire, 253 S.E.2d 103, 104 (S.C. 1979) ("A judge may not invoke a witness' Fifth Amendment privilege. . . ."). (4)

In United States v. Colyer, 571 F.2d 941, 945-946 (5th Cir. 1978), the Fifth Circuit held that a judge may not invoke the privilege on behalf of a witness based on an assumption that the witness himself would invoke the privilege. The complaining witness in Colyer testified that he invited the defendant to his home after meeting the defendant at a bar frequented by homosexuals. 571 F.2d at 943. He testified that he fell asleep, and when he awoke his wallet and credit card were missing and the defendant had left. Id. Defense counsel sought to explore whether the witness had given his credit card to the defendant as payment for sexual favors. Id. at 944 n.2. When counsel asked the witness whether he was homosexual, the prosecutor objected that the witness was "entitled to plead the Fifth Amendment rights" and the judge agreed and sustained the objection. Id. The judge did not inquire of the witness himself whether he wished to invoke or waive the privilege. Id. at 944. The Fifth Circuit held that a trial judge may not assume that a witness will claim a privilege:

We find nothing in the federal case law to indicate that the trial court is entitled to assume the witness will claim the privilege simply because it is available and there is a valid basis for granting the privilege. While most witnesses will choose to remain silent in such circumstances, the choice to invoke the privilege should still be exercised by the witness.

Id. at 946. (5) Likewise, the trial court here was not entitled make the choice for Mr. Ashman or assume that Mr. Ashman would have chosen to invoked the privilege. (6) Its ruling was an abuse of the court's limited discretion on this issue.

To establish Sixth Amendment and Due Process violations, the excluded testimony must have been "both material and favorable to the defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Here, Mr. Ashman's testimony would have completely exculpated appellant and would have directly contradicted Officer Anderson's testimony that appellant tried to throw crack from the window. Certainly, Mr. Ashman's testimony that he had tried to throw crack from the window but Mr. xxxxx had not, and that he was selling crack from the house that night but Mr. xxxxx was not, would have been "both material and favorable to the defense." Id. Mr. Ashman's testimony would have established a misidentification defense; without it, appellant was left virtually defenseless. United States v. Dean, 55 F.3d 640, 662 (D.C. Cir. 1995) ("A witness' testimony is material if its absence actually prejudiced the defendant's ability to mount a defense."), (citing United States v. North, 910 F.2d 843, 889 (D.C. Cir. 1990), cert. denied, 116 S. Ct. 1288 (1996). Having heard only the prosecution's version of the facts, the jury had little choice but to convict.

In sum, the judge's well-intentioned desire to protect Mr. Ashman prejudiced appellant because it utterly prevented him from presenting his version of the facts to the jury for its determination of "where the truth lies." Washington v. Texas, 388 U.S. at 19. The effective denial of this most fundamental right, Chambers, 410 U.S. at 302, was not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). A new trial, at which Mr. Ashman can be called as a witness in the defense case, is required.

II. TO THE EXTENT THAT APPELLANT'S COUNSEL FAILED TO ADEQUATELY PRESERVE THE SIXTH AMENDMENT AND DUE PROCESS VIOLATION FOR APPELLATE REVIEW, HE WAS INEFFECTIVE.

A. Standard of Review

To obtain relief for a violation of the Sixth Amendment right to effective assistance of counsel, appellant must show (1) that his lawyer's performance was unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687-94 (1984).

B. To the Extent the Government May Contend that Mr. Ashman Did Not Testify Because Defense Counsel Failed to Call Him As a Witness Upon Learning That Ashman's Attorney Advised Ashman Not to Testify, Counsel Was Ineffective.

In response to appellant's earlier claim of ineffective assistance of counsel, see Defendant's Motion For Writ Of Error Coram Nobis To Vacate The Judgment And For A New Trial (A. at 25), appellant's trial counsel submitted an affidavit stating that

[t]o the best of my recollection, Mr. Ashman's attorney, James E. Williams, Esquire, advised Mr. Ashman that he should not testify on behalf of defendant xxxxx. Consequently, Mr. Ashman was not called as a defense witness.

(A. at 71). The district court cited trial counsel's affidavit to deny appellant's Motion for Writ of Error Coram Nobis: "When Mr. Ashman's attorney was later contacted, he advised Mr. Ashman not to testify and, as a result, Mr. Ashman was not called as a defense witness. (Orenberg Aff., 6.)" (A. at 78).

Trial counsel's recollection is contradicted by the record. The record reflects that counsel spoke to Mr. Ashman's attorney on January 16 or 17, 1991 and arranged for the attorney to appear in district court on January 17, 1991 at 12:30 p.m. to advise Mr. Ashman as to his rights under the Fifth Amendment (1/17/91am at 16). The attorney failed to appear on January 17th (1/17/91am at 42; 10/31/96 at 17-18). Appellant's counsel continued to pursue Mr. Ashman's testimony even after he had spoken to the Ashman's attorney and even after the attorney failed to appear. Defense counsel abandoned his efforts only after the court ruled that Ashman was not a "proper witness" and would not be permitted to testify (1/17/91am at 55).

Nevertheless, to the extent that the government may contend that Ashman did not testify in the defense case as a result of defense counsel's decision not to call him as a witness (rather than the court's invocation of a Fifth Amendment privilege on Ashman's behalf), that decision was based on a fundamental misunderstanding of the nature of the Fifth Amendment privilege and would be sufficient to establish deficient representation under Strickland v. Washington, supra. See United States v. Streater, 70 F.3d 1314, 1318-19 (D.C. Cir. 1995) (erroneous advice that defendant could not assert inconsistent defenses at suppression hearing and at trial amounted to defective representation). A competent attorney would recognize that the decision whether to invoke or waive a Fifth Amendment privilege is, in the final analysis, that of the witness. Bigby, 21 F.3d at 1061; Schmidt, 816 F.2d at 1481 n.3; Bowe, 698 F.2d at 565; Colyer, 571 F.2d at 945-46; Mayes, 512 F.2d at 649; McGuire, 253 S.E.2d at 104. A competent attorney would recognize that a witness is entitled waive the privilege and testify regardless of the advice of legal counsel.

There is a "reasonable probability" that the result of the trial would have been different if that most "fundamental" underpinning of the adversary system had been present -- if the jury had been "present[ed] the defendant's version of the facts as well as the prosecution's" for it's determination of "where the truth lies." Washington v. Texas, 388 U.S. at 19. Therefore, assuming arguendo that Mr. Ashman's testimony was excluded because of defense counsel's failure to call him as a witness, the trial court erred by denying appellant's Motion for Writ of Error Coram Nobis alleging ineffective assistance of counsel, and this Court should order a new trial at which Mr. xxxxx has counsel meeting the minimum requirements of the Sixth Amendment.

III. THE DISTRICT COURT PLAINLY VIOLATED THE EX POST FACTO CLAUSE WHEN IT APPLIED THE 1995 VERSION OF THE SENTENCING GUIDELINES THAT RESULTED IN A HARSHER PENALTY THAN WOULD THE 1989 VERSION IN EFFECT AT THE TIME THE OFFENSE WAS COMMITTED.

A. Standard of Review

Whether application of a guideline violates the ex post facto clause is reviewed de novo. United States v. Cabrera-Sosa, 81 F.3d 998, 1001 (10th Cir.), cert. denied, 117 S. Ct. 218 (1996). Because Mr. xxxxx's sentencing counsel did not object to the court's use of the 1995 version of the Sentencing Guidelines, the court's application is reviewed for plain error. This Court will reverse for plain error where there was legal error, the error was "plain" in the sense of being obvious or clear, and it "prejudiced" appellant or affected a substantial right. United States v. Olano, 507 U.S. 725, 734 (1993). The plain error rule is applied "less rigidly when reviewing a potential constitutional error," United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir. 1991), and, the showing of prejudice may be "somewhat lighter in the sentencing context." United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994).

B. Application of the Two-Level Adjustment for "Using a Minor" Plainly Violated the Ex Post Facto Clause Where the Offense Was Committed in August, 1990 and the Adjustment Was Not Added to the Sentencing Guidelines Until November, 1995.

Amendments to the United States Sentencing Guidelines occurring after a defendant's offense but before sentencing may not be applied if doing so would increase the sentence because such would violate the ex post facto clause of the Constitution. (7) Miller v. Florida, 482 U.S. 423, 430-31 (1987) (application of amended sentencing guidelines, which became effective after defendant's offense, violated ex post facto clause); United States v. Clark, 8 F.3d 839, 844 (D.C. Cir. 1993) (U.S.S.G 5H2.12, which became effective after defendant's offense, could not be applied to defendant); United States v. Molina, 952 F.2d 514, 522-23 (D.C. Cir. 1992) ("[W]hen an amendment to a Guideline increases the punishment imposed, the ex post facto clause of the Constitution prevents retroactive application of the amended Guideline to crimes committed prior to the effective date of the amendment."); United States v. Lam, 924 F.2d 298, 304 (D.C. Cir. 1991) (substantive changes to Guidelines that adversely affect a defendant's sentence "may not be applied retroactively without violating the ex post facto clause of the Constitution").

Thus, where a harsher penalty would result from calculating a defendant's sentence using the Guidelines in effect at the time of the sentencing hearing, the sentence must be calculated using the Guidelines in effect at the time the offense was committed. U.S.S.G. 1B1.11(b)(1) (directing district court to apply version of Guidelines in effect at time of sentencing, unless such an application would violate ex post facto clause, in which case court "shall use the Guidelines Manual in effect on the date that the offense of conviction was committed").

Because Mr. xxxxx's punishment under the 1995 Guidelines was greater than it would have been under the 1989 Guidelines in effect at the time of his offense, the sentence violated the ex post facto clause. U.S.S.G. 3B1.4, which came into effect on November 1, 1995 -- more than five years after the offense was committed -- provides for a two-level upward adjustment for using a minor to commit a crime. By using the 1995 version of the Guidelines in effect at the time of the sentencing in October, 1996, Mr. xxxxx's offense level was adjusted from 28 to 30: U.S.S.G. 2D1.1 sets the base offense level at 26 (PSR at 3, 14). 3C1.1 provides for a two-level adjustment for obstruction of justice, raising the offense level to 28. (8) Application of the 3B1.4 two-level adjustment for using a minor increased the offense level to 30. Mr. xxxxx's criminal history placed him in Criminal History Category I (PSR at 3-4, 16). The sentencing range for Category I with an offense level 28 is 78-97 months imprisonment. The sentencing range with an offense level 30 is 97-121 months imprisonment. Mr. xxxxx was sentenced to 97 months imprisonment, the bottom of the guideline range for that offense level (A. at 79).

Application of the harsher 1995 version of the Guidelines rather than the 1989 version was plainly erroneous. First, the error was plain in the sense of being obvious or clear. The Supreme Court's decision in Miller, this Court's decisions in Clark, Molina, and Lam, were on the books at the time of Mr. xxxxx's sentencing, and U.S.S.G. 1B1.11(b)(1) was in effect.

Second, the error prejudiced Mr. xxxxx since it likely resulted in a 19-month increase in his sentence. Since the district court sentenced Mr. xxxxx at the bottom of the guideline range for an offense level of 30, it is likely that it would have sentenced him at the bottom of the guideline range for an offense level of 28. Clark, 8 F.3d at 844 (question is whether guideline amendment "disadvantages the defendant"); United States v. Molina, 952 F.2d at 522-523 (imposition of a longer prison sentence adversely affects defendant in violation of ex post facto clause). See United States v. Gilberg, 75 F.3d 15, 22 (1st Cir. 1996) (plain error standard met where use of version of Victim and Witness Protective Act, amended after commission of offense, resulted in increase in restitution order); United States v. Orr, 68 F.3d 1247, 1252 (10th Cir.) (plain error standard met where retroactive application of revised guideline resulted in more severe sentence), cert. denied, 116 S. Ct. 747 (1995)); United States v. Heater, 63 F.3d 311, (4th Cir. 1995) (same), cert. denied, 116 S. Ct. 796 (1996)); United States v. Aman, 31 F.3d 550, 557 (7th Cir. 1994) (same); United States v. Hoster, 988 F.2d 1374, 1380-1381 (5th Cir. 1993) (same). Thus, Mr. xxxxx has shown a "reasonable likelihood" that this error affected his sentence -- the minimum prejudice requirement set forth in Saro, 24 F.3d at 287-288.

IV. MR. xxxxx'S COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE EX POST FACTO CLAUSE VIOLATION.

A. Standard of Review

To obtain relief for a violation of the Sixth Amendment right to effective assistance of counsel, appellant must show (1) that his lawyer's performance was unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687-94 (1984).

B. Mr. xxxxx Was Prejudiced By His Lawyer's Failure to Object to the Application of the 1995 Version of the Guidelines.

Even if this Court were to conclude that the sentencing error discussed in Part III, supra, was not sufficiently "obvious" to qualify as "plain error," it was nevertheless obvious enough that defense counsel failed to meet the Strickland standard of competence in failing to object. See United States v. Catlett, 97 F.3d 565, 571 (D.C. Cir. 1996) (Court assumes arguendo that counsel were deficient by failing to make so-called "Beach" objection to expert testimony, even though its admission could not have been "plain error" since this Court had never adopted "Beach" rule). (9)

Here, defense counsel's representation at sentencing was clearly deficient. (10) Despite the Supreme Court's decision in Miller, supra, this Court's decisions in Clark, supra, Molina, supra, and Lam, supra, and the Guidelines' own clear direction in 1B1.11(b)(1) to use the Guidelines in effect at the time of the offense where use of subsequent Guidelines would otherwise violate the ex post facto clause, defense counsel failed to lodge any objection to the district court's use of the 1995 version of the Guidelines. Even assuming, arguendo, that the overlooked error was not obvious enough to be "plain" error, it was surely sufficiently questionable that any competent defense lawyer would have raised it. If appellant's lawyer had raised the objection, there is at least a "reasonable probability" that the sentence would have been 19 months lower.

This Court's general practice when a defendant claims ineffective assistance of counsel for the first time on appeal is to remand for an evidentiary hearing. United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C. Cir. 1995). Fennell recognized, however, that the Court will make an exception to that practice when the record conclusively shows that the appellant is entitled to relief. Id. In Fennell, that exception did not apply because each of the claimed errors "could have involved a reasoned tactical choice, and so cannot be resolved without a hearing in district court." Id. at 1404. Here, unlike in Fennell, counsel's error could not possibly have been the result of any "reasoned tactical choice." There could be no conceivable benefit to Mr. xxxxx from the withholding of a valid objection to the use of the wrong version of the Guidelines and the application of a sentencing adjustment that increased Mr. xxxxx's sentence in violation of the ex post facto clause. Therefore, even aside from whether the error in Mr. xxxxx's sentence qualifies as "plain error," this Court should order a resentencing at which Mr. xxxxx has counsel meeting the minimum requirements of the Sixth Amendment.

CONCLUSION

Because the trial court's invocation of the Fifth Amendment privilege on behalf of Mr. xxxxx's witness interfered with Mr. xxxxx's ability and right to present a defense, his conviction must be reversed and the case remanded for a new trial. To the extent that the government contends and the Court finds that defense counsel failed to call the witness based on an assumption that the witness would invoke the privilege, Mr. xxxxx's conviction must be reversed and the case remanded for a new trial due to ineffective assistance of counsel.

With respect to Mr. xxxxx's sentence, this Court should find the district court's application of the 1995 version of the United States Sentencing Guidelines and its imposition of a 97-month term of imprisonment to be plain error and remand for resentencing. In the even the Court denies such relief, it should nevertheless remand for resentencing due to sentencing counsel's ineffective assistance.

Respectfully submitted,



A. J. Kramer

Federal Public Defender



_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500





CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant, Clyde Karl xxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).



_________________________________

Sandra G. Roland





CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 13th day of August, 1997.



___________________________________

Sandra G. Roland

1. "A." citations refer to pages of the Appendix filed with this brief. The dates followed by a number (e.g., 1/16/91am at 21) refer to pages of the transcripts of the pretrial hearings, trial proceedings, and sentencing hearing.

2. In the meantime, Mr. Ashman had been sentenced on October 29, 1991, in the Superior Court for second degree murder while armed and was serving a 12-36 year sentence of imprisonment at Lorton (10/31/96 at 6, 18).

3. "In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . . ." U.S. Const. amend. IV.

4. It also has been held that the privilege cannot be invoked or waived by the witness' attorney. United States v. Schmidt, 816 F.2d 1477, 1481 n.3 (10th Cir. 1987) ("only the appellants, not their counsel, are the proper parties to interpose a claim of privilege" under the Fifth Amendment). See Bigby v. United States Immigration and Naturalization Service, 21 F.3d 1059, 1061 (11th Cir. 1994) (assuming arguendo that the Fifth Amendment privilege cannot be invoked by counsel).

5. Because defense counsel in Colyer had been permitted to ask the witness whether he had given the credit card to the defendant "in consideration of a favor . . . of some sort," id. at 944 n.2, the error was harmless beyond a reasonable doubt. Id. at 946.

6. In fact, the evidence points in the opposite direction: Not only did defense counsel appear to have reason in January, 1991 to believe that Mr. Ashman intended to waive the privilege (e.g., 1/16/91pm at 8: "[I]t was somewhat of a surprise as a last minute witness when we found out that he was willing to testify on behalf of my client."), but when Mr. Ashman was subpoenaed to the sentencing hearing in 1996 he did waive the privilege despite legal advice to the contrary. Since his reason for waiving the privilege in 1996 -- "[b]ecause I know that this man is innocent, because I seen it with my very eyes . . ." -- was equally strong in 1991, there is a substantial likelihood that Mr. Ashman would have chosen to waive the privilege and testify at appellant's trial.

7. "No Bill of Attainder or ex post facto Law shall be passed." U.S. Const. art. I, 9, cl. 3.

8. Although the Application Notes to 3C1.1 did not explicitly describe failure to appear for a judicial proceeding as obstruction of justice until November 1, 1990, this Court has held that the amendment did not effect a substantive change to the Guidelines, but "merely added another example of the kind of conduct that is to be found obstructive . . ." United States v. Monroe, 990 F.2d 1370, 1375 (D.C. Cir. 1993).

9. The Catlett court ruled that the defendants had failed to show that such deficiency prejudiced them because they had not shown a reasonable probability that a Beach objection would have been successful or changed the outcome of the trial. Id. at 571-72. Here, by contrast, the objection Mr. xxxxx's counsel failed to raise has clear merit and, if made, would have resulted in a significantly lower sentence.

10. Appellant had different counsel at trial and at sentencing.