CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici:

This appeal arises from a criminal trial involving the defendant-appellant, Cornell Francis xxxxx, and the plaintiff-appellee, the United States of America. The parties on appeal are the same as those below. There are no intervenors or amici.

This is an appeal from the judgment of the district court (Honorable Richard W. Roberts), dated May 18, 1999, adjudging appellant guilty after a jury trial on drug distribution and related charges. In this appeal, appellant seeks review of the district court's rulings denying his for-cause challenge to a juror on voir dire (2/3/99 a.m. Tr. 127-28), admitting the hearsay testimony of government witness Neil Darnell (2/4/99 Tr. 26-28), refusing to sentence appellant under the "safety valve" provision of the sentencing guidelines (5/14/99 Tr. 32-33), and denying a downward departure for extraordinary family responsibilities (5/14/99 Tr. 33-34). None of these rulings has been reported.

C. Related Cases

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


UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





__________________________________________________________________



NO. xxxxxxxx

_________________________________________________________________



BRIEF FOR APPELLANT



_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



CORNELL FRANCIS xxxxx, Defendant-Appellant.





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________







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 having been filed on May 19, 1999, this Court has jurisdiction under 28 U.S.C. 1291.


ISSUES PRESENTED FOR REVIEW

I. WHETHER THE DISTRICT COURT'S ERRONEOUS DENIAL OF A CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO EXPRESSED PARTIALITY FOR THE TESTIMONY OF LAW ENFORCEMENT WITNESSES, REQUIRING THE DEFENSE TO EXERCISE A PEREMPTORY CHALLENGE TO STRIKE THE JUROR, CONSTITUTES REVERSIBLE ERROR.

II. WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN ADMITTING HEARSAY TESTIMONY THAT THE FBI HAD INFORMATION THAT MR. xxxxx WAS INVOLVED IN DRUG TRAFFICKING.

III. WHETHER THE DISTRICT COURT ERRED IN REFUSING TO APPLY THE SAFETY VALVE PROVISION OF THE SENTENCING GUIDELINES AND IN RULING IT LACKED AUTHORITY TO GRANT A DEPARTURE FOR EXTRAORDINARY FAMILY CIRCUMSTANCES.



STATUTES AND RULES



Pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

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

On October 27, 1998, a federal grand jury returned a five-count indictment charging Cornell F. xxxxx with unlawful use of a communications facility, in violation of 21 U.S.C. 843(b) (Counts One and Three), distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii) (Count Two), distribution of cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C) (Count Four), and possession of cocaine, in violation of 21 U.S.C. 844(a) (Count Five). [A. 11] (1)

A jury trial commenced before the Honorable Richard W. Roberts on February 3, 1999. On December 8, 1999, the jury convicted Mr. xxxxx on all counts. (2/8/99 Tr. 3-5)

On May 14, 1999, the district court sentenced Mr. xxxxx to 121 months imprisonment, five years supervised release, and a special assessment of four hundred and twenty-five dollars. (5/14/99 Tr. 40-41) Thereafter, Mr. xxxxx filed a timely notice of appeal and this appeal ensued. [A. 21]

B. Statement of Facts

1. Introduction

This case arises out of an undercover operation conducted by the FBI. Using two cooperating witnesses, the FBI obtained drugs from Mr. xxxxx on two occasions. The government's evidence primarily consisted of the testimony of FBI agents and one of the cooperating witnesses. Mr. xxxxx presented an entrapment defense based upon his own testimony and the testimony of three defense witnesses. The jury rejected the entrapment defense and convicted Mr. xxxxx of the five charges against him.

2. Voir Dire Concerning Bias Toward Testimony of Law Enforcement Officer

During the voir dire, the district court asked the panel of prospective jurors whether any of them would give more or less weight to the testimony of a law enforcement officer based upon the witness's status as a law enforcement officer. (2/3/99 a.m. Tr.44) Jurors 072668 and 079667 answered affirmatively. (Id. 44-45) When the court conducted an individual voir dire of juror 072668, the juror indicated that it would tend to believe a police officer more than another witness. (Id. 83) During additional questioning, the juror indicated it would "try" to follow the court's instruction that police testimony is not to be accorded more weight than the testimony of other witnesses. (Id. 84) The juror indicated that it would do its "best" to accept the court's instructions on this point. (Id. 85-86) Ultimately, the juror stated that it would "try" to be fair and impartial, but could not "guarantee" it. (Id. 87, 90) The district court denied defense counsel's motion to strike juror 072668 for cause. (Id. 90-91) (2) The defense used one of its peremptory challenges to strike the juror.

3. The Government's Case

The government called as its first witness FBI Special Agent Neil Darnell. Darnell testified that in the fall of 1996, he and FBI Agent Timothy Ervin met with an individual named Thomas xxxxx at the Fairton Correctional Institution in New Jersey. (2/4/99 Tr. 25, 84) xxxxx was serving approximately fifteen years in prison for a variety of charges and had two state detainers pending against him. (Id. 84-85) The agents agreed to help xxxxx with his present sentence and pending charges if he provided information about potential investigations. (Id. 86-87) The FBI also gave xxxxx money to deposit in his prison account to make telephone calls and to obtain medical services. (Id. 90-92)

Thomas xxxxx informed the agents that his uncle, George xxxxx, who lived in Pennsylvania at that time, would assist in their investigation. (Id. 87-88) In early March 1997, Darnell met with George xxxxx in Washington, D.C. (Id. 25, 28) George xxxxx agreed to cooperate with the FBI provided that his nephew Thomas would receive the benefit of his uncle's cooperation. (Id. 93) The FBI also agreed to pay for George xxxxx's expenses, including food, lodging, and telephone bills, relating to the investigation. (Id. 28-29, 88-89) Between November 1997 and January 1998, the FBI paid George xxxxx over $1,100.00 for his telephone bills. (Id. 89)

After Darnell testified that George xxxxx had agreed to attempt to purchase drugs from Mr. xxxxx, the pxxxxxcutor asked how the investigation became focused on xxxxx. (Id. 25-26) Defense counsel objected on the grounds that the question necessarily called for hearsay evidence as to what Thomas xxxxx had told the FBI and that the defense was not going to have an opportunity to cross-examine him. (Id. 26) Accepting the pxxxxxcutor's argument that the evidence was not hearsay because it was offered to establish "where the FBI met with George xxxxx and why they did what they did with George xxxxx[,]" the district court overruled the objection but indicated it would strike any inadmissible hearsay. (Id.)

Darnell then testified that the FBI had received information that Mr. xxxxx was involved in drug trafficking and that George xxxxx was in a position to directly approach xxxxx about drugs. (Id. 27) The court overruled defense counsel's renewed objection. (Id.) In response to the pxxxxxcutor's leading question as to the source of that information, Darnell testified that it came from Thomas xxxxx. (Id.) The court then sustained defense counsel's objection and granted his motion to strike the answer. (Id. 27-28) When the pxxxxxcutor re-phrased the question, Darnell testified that the information came from a "source." (Id. 28) The court again sustained defense counsel's objection and granted his motion to strike the answer. (Id.)

In accordance with the FBI's plan, George xxxxx called Mr. xxxxx on March 18, 1997, to set up a drug transaction. (Id. 32-33; 2/5/99 Tr. 11-13) The FBI taped the telephone conversation and personal meetings between xxxxx and xxxxx. Audio tapes of their conversations and meetings on March 18, 1997, were admitted into evidence and played to the jury. (2/4/99 Tr. 32-33, 44-46; Gov. Ex. 1-A, 1-B) Before xxxxx met with xxxxx on March 18, the FBI provided xxxxx with a Nagra recorder and transmitter so the agents could monitor his conversations with xxxxx and gave xxxxx $1,800.00 to purchase the drugs. (Id. 46-47) On that date, xxxxx purchased from xxxxx a quantity of crack cocaine at the barber shop where xxxxx worked. (2/5/99 a.m. Tr. 14-16; Gov. Ex. 4) (3) xxxxx left the barber shop and gave the drugs to Agent Darnell. (2/4/99 Tr. 48; 2/5/99 a.m. Tr. 16) FBI surveillance photographs of the transaction were admitted into evidence. (2/4/99 Tr. 121-27; Gov. Ex. 3A-3H)

On March 27, 1997, the FBI taped a telephone call from Thomas xxxxx to Mr. xxxxx. (2/4/99 Tr. 54-55; Gov. Ex. 6) A tape recording of the conversation was played to the jury. (Id. 58) During the conversation, Mr. xxxxx stated that he was not a "middle man." (Id. 94-95) On the next day, George xxxxx called xxxxx to schedule another drug transaction. (Id. 59-60; Gov. Ex. 7) The audiotape of that conversation also was played to the jury. (Id. 60) On April 1, 1997, George xxxxx made several telephone calls to Mr. xxxxx to arrange another drug purchase. (Id. 53; 2/5/99 a.m. Tr. 16-17) Audiotapes of the telephone conversations were admitted into evidence and played to the jury. (2/4/99 Tr. 60-63; Gov. Ex. 8, 9) Later that day, George xxxxx again went to the barber shop and purchased a quantity of cocaine from Mr. xxxxx. (2/4/99 Tr. 53-54; 2/5/99 a.m. Tr. 17-19; Gov. Ex. 17) (4) An audiotape recording of that transaction was admitted into evidence and played to the jury. (2/4/99 Tr. 63-64; Gov. Ex. 10) FBI surveillance photographs of the transaction also were admitted into evidence. (Id. 128-36; Gov. Ex. 16A-16KK)

On October 13, 1998, the FBI arrested Mr. xxxxx. (2/4/99 Tr. 75) After waiving his Miranda rights, xxxxx spoke with the agents for about one hour. (Id. 76-79) xxxxx told the agents that he remembered the first drug transaction with George xxxxx but not the second one. (Id. 79) xxxxx indicated that an individual he knew by the name of "Tee" had called him from a jail in Pennsylvania and had asked him to show around Tee's uncle, George xxxxx, who was coming to Washington, D.C. (Id.) George xxxxx later contacted xxxxx and told him he was interested in purchasing some cocaine. (Id.) In response to xxxxx's request, xxxxx obtained from an individual in the barber shop where xxxxx worked the names and telephone numbers of two persons who could supply him with cocaine. (Id.) xxxxx did not remember the names or phone numbers of those individuals but did remember that one of the men was known as "Barber." (Id.)

xxxxx further told the agents that he contacted the two individuals who brought the drugs to his barber shop. (Id.) xxxxx came to the barber shop, gave the money for the drugs to xxxxx, who, in turn, gave the money to the individuals who had the drugs. (Id.) xxxxx took the drugs from them and gave the drugs to xxxxx. (Id. 79-80) xxxxx indicated to the agents that he had done this as a favor to Tee and to George xxxxx. (Id. 80) The agents showed xxxxx the surveillance photographs of the March 18, 1997 transaction and xxxxx identified the two individuals who had brought the drugs to his barber shop on that date. (Id. 80-81)

After Mr. xxxxx' arrest, Agent Ervin searched him and recovered four small bags containing white powder rolled up in xxxxx's pants leg. (Id. 139-40; Gov. Ex. 20) (5) xxxxx told the agents that he had purchased the small bags of cocaine on the street two days earlier for $50.00. (Id. 144)

4. The Entrapment Defense

In addition to his own testimony, Mr. xxxxx presented three defense witnesses. Robert Carter worked at the barber shop with Mr. xxxxx from 1989 through 1996. (2/5/99 a.m. Tr. 69-70) In 1994-95, xxxxx developed a close friendship with a customer named "Tee." (Id. 70-71) Even after Carter stopped working at the barber shop, he returned there once or twice a week as he maintained a close relationship with xxxxx' grandfather who owned the shop. (Id. 70, 73) Carter never saw Mr. xxxxx do anything to indicate that he was distributing drugs at the barber shop. (Id. 73-74)

Victor Graves, a Metropolitan Police Department officer, had been a customer of Mr. xxxxx since 1989. (Id. 78-79) He never observed drugs or large amounts of cash in the barber shop. (Id. 80) Graves did not see xxxxx do anything to indicate that he was selling cocaine out of the barber shop. (Id.)

Angela xxxxx had been married to Mr. xxxxx for four years. (Id. 96-97) They had five daughters between them -- two together, two were hers before the marriage, and one was his before the marriage. (Id. 97, 100) Mr. xxxxx supported all five children, although his daughter from a previous relationship resided with her mother. (Id. 100-01) Mr. xxxxx earned between $300.00-$400.00 per week at the barber shop. (Id. 102) Mrs. xxxxx, who was a secretary, stopped working full-time in 1995. (Id. 102-03) At the time of this trial, she was undergoing chemotherapy for a recurrence of breast cancer. (Id. 96)

Mrs. xxxxx never saw any drugs or large sums of cash in the house she and her husband rented. (Id. 97-98, 101) She occasionally went to the barber shop where Mr. xxxxx worked and she never saw him sell drugs there. (Id. 98-99) She also never saw him with any large sums of money in the barber shop. (Id. 99)

Mr. xxxxx testified that he was a master barber and manager of the Longfellow Unisex Shop. (Id. 109) He had worked there for ten years. (Id.) In 1989, he began to cut the hair of an individual named Thomas xxxxx, who also went by the name of "Tee." (Id.) xxxxx and xxxxx developed a close friendship outside of the barber shop. (Id. 109-10) During the course of their friendship, xxxxx was sent to prison. (Id. 110)

In 1997, xxxxx called xxxxx and told him that xxxxx's uncle, George xxxxx, was coming to Washington, D.C. (Id. 110-11) xxxxx agreed to show xxxxx's uncle around the city. (Id. 111) Thereafter, George xxxxx came to the barber shop and asked xxxxx to find some drugs for him. (Id.) xxxxx told him that he was not certain but that he would look into it for him. (Id.)

xxxxx asked an old friend, Charles Boyd, if he knew where to obtain a quantity of drugs. (6) (Id. 112) Boyd told xxxxx that he might be able to contact someone to obtain the drugs. (Id. 112) Thereafter, an unidentified person contacted xxxxx and agreed to provide the drugs for George xxxxx. (Id. 114-15) xxxxx gave the drugs to xxxxx at the barber shop on March 18, 1997. (Id. 115) xxxxx decided to comply with George xxxxx's request out of his friendship for Thomas xxxxx. (Id. 111-12, 124)

After the first transaction, George xxxxx again contacted Mr. xxxxx to obtain more drugs. (Id. 116) xxxxx felt uncomfortable after the first transaction and did not want to be involved in another one. (Id. 117) However, again out of his friendship with Thomas xxxxx, xxxxx arranged for another quantity of drugs for George xxxxx. (Id. 116)

Mr. xxxxx testified that he was not a drug dealer and that the two transactions with George xxxxx were the only times he had distributed drugs. (Id. 122, 132) He denied ever having sold drugs with Thomas xxxxx. (Id. 142-43) However, xxxxx admitted that he used cocaine. (Id. 119) He explained that in 1989, he possessed a gram of cocaine for personal use when he was in the military. (Id. 143-44) Concerning his post-arrest statements to the FBI, which were made some eighteen months after the two drug transactions occurred, Mr. xxxxx testified that he was nervous during the questioning and could not remember everything that had occurred with George xxxxx. (Id. 119-21)

5. The Sentencing

At sentencing, Mr. xxxxx argued for a sentence below the mandatory minimum sentence required by his conviction for violating 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii), and below the applicable guidelines range, which the presentence report ("PSR") calculated as 135-168 months. (PSR, p. 10, 48) (7) xxxxx argued that he was eligible to be sentenced under the "safety valve" provision of U.S.S.G. 5C1.2, which permits the court to impose a sentence below the statutory minimum. (5/14/99 Tr. 3, 8, 10, 15, 26-27) Indicating that Mr. xxxxx had failed to truthfully provide all information to the government, as required by 5C1.2(5), the district court denied his request to be sentenced below the statutory minimum of 120 months. (Id. 32-33)

Based upon his wife's serious illness and the devastating effect his incarceration would have on his family, Mr. xxxxx requested a downward departure for extraordinary family responsibilities under U.S.S.G. 5K2.0. (Id. 11-12) The PSR indicated that the court could grant a downward departure because Mr. xxxxx was the sole support of his wife and five children and, in light of her medical condition and his impending incarceration, there were no other family members able to take care of the children. (PSR, p. 13, 71) The court denied the departure on the grounds that it lacked authority under this circuit's precedents. (5/14/99 Tr. 33-34) Finding that Mr. xxxxx's criminal history category was I instead of II, as calculated in the PSR, the court found that the applicable guideline range was 121-151 months and sentenced Mr. xxxxx to 121 months in prison, followed by 5 years of supervised release, and imposed a special assessment of $425.00. (Id. 40-41)

SUMMARY OF ARGUMENT

The district court erroneously denied Mr. xxxxx's cause challenge to a prospective juror who expressed a clear bias toward law enforcement testimony. Although the court attempted during an individual voir dire to rehabilitate the juror, the juror continued to give qualified answers concerning its ability to follow the court's instructions in evaluating police testimony. Therefore, the court abused its discretion in concluding that the juror could be fair and impartial. Because the defense exercised all of its peremptory challenges, including one on that juror, Mr. xxxxx's conviction must be reversed.

The district court also erred in admitting, over defense objection, the hearsay testimony of a FBI agent indicating that the government had information that Mr. xxxxx was involved in drug trafficking. Although the pxxxxxcutor argued that the evidence was offered to explain the background of the FBI's investigation, the testimony nevertheless constituted damaging hearsay because it placed before the jury highly prejudicial propensity evidence which Mr. xxxxx did not have the opportunity to confront and cross-examine. The pxxxxxcutor exploited the erroneous admission of the evidence by asking two improper follow-up questions to elicit that the FBI had obtained the information from a cooperating witness who did not testify at trial. Although the court struck the answers to the follow-up questions, it would have been extremely difficult for the jury to disregard such inflammatory testimony. The hearsay evidence was particularly prejudicial in this case -- in which Mr. xxxxx raised an entrapment defense -- because it was the government's only substantial evidence to prove that xxxxx was predisposed to commit the charged offenses. Because the improper evidence likely contributed to the jury's rejection of the entrapment defense, the court's error in admitting the hearsay testimony is not harmless.

Finally, the district court erred in refusing to sentence Mr. xxxxx under the "safety valve" provision of the sentencing guidelines and in denying for lack of authority a downward departure on the grounds of extraordinary family circumstances. Without making specific findings, the court ruled that xxxxx did not qualify for the safety valve because he failed to provide the government with complete and truthful information concerning any prior drug offenses he might have committed. This finding is not supported by the record and misapplies the fifth criterion of the safety valve, which requires the defendant to disclose all information concerning the offense of conviction and any offenses that were part of the same course of conduct or common scheme. The government did not present any evidence that Mr. xxxxx had committed prior offenses that were related to his offenses of conviction. Thus, the court's unsupported conclusion is insufficient to support its denial of safety valve relief.

The district court also misinterpreted its authority to grant a departure for Mr. xxxxx's extraordinary family circumstances -- xxxxx was the sole support of his wife, who was suffering from cancer, and their four children. The court mistakenly concluded that this circuit's precedents denying departures on the grounds that a parent's incarceration might result in the children being placed in foster care, precluded the court from departing in this case. However, in reaching this conclusion, the court failed to consider the impact Mr. xxxxx's imprisonment would have on his wife, who needed him to pay her medical bills and to help care for her, and on the stability of the family unit. Because the court underestimated its departure authority, Mr. xxxxx is entitled to a resentencing.

I. THE DISTRICT COURT'S ERRONEOUS DENIAL OF A CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO EXPRESSED PARTIALITY FOR THE TESTIMONY OF LAW ENFORCEMENT WITNESSES, REQUIRING THE DEFENSE TO EXERCISE A PEREMPTORY CHALLENGE TO REMOVE THE JUROR, REQUIRES REVERSAL OF MR. xxxxx'S CONVICTION WHERE THE DEFENSE EXHAUSTED ALL OF ITS PEREMPTORY CHALLENGES

A. Standard of Review

This Court reviews the district court's refusal to excuse a juror for cause for clear abuse of discretion. See United States v. Joseph, 892 F.2d 118, 123-24 (D.C. Cir. 1989) (trial court has "broad discretion" in jury selection) (additional citation omitted).

B. The District Court Clearly Abused its Discretion in Refusing to Excuse a Biased Prospective Juror

During voir dire, the district court asked the prospective jurors whether any of them would "give more weight, or less weight to the testimony of a police officer or a law enforcement officer simply because that witness is a law enforcement officer?" (2/3/99 a.m. Tr. 44) Two jurors, # 072668 and # 079667, answered affirmatively. (Id. 44-45) Later in the jury selection process, the court individually questioned juror # 072668 and the following colloquy occurred:

THE COURT: Good morning.



JUROR 072668: Good morning.



THE COURT: We had asked whether you would give any more weight or less weight to the testimony of a police officer. What would you do?



JUROR 072668: Well, it's just some of them -- yeah, I think I would.



THE COURT: Which way?



JUROR 072668: For the police officer. In favor of the police officer. I would find -- I would find myself, I think, believing the police officer more than I might believe someone else.



THE COURT: And suppose I told you, I instructed you that it was your duty to not give any more weight to the testimony of a police officer because that person is a police officer and that you have to assess that police officer's testimony the way you would assess anybody's testimony. It is not accorded more weight just because he or she is a police officer.



JUROR 072668: I would try.



THE COURT: You would try to follow my instructions?



JUROR 072668: Yes.



THE COURT: Would you promise me you would follow --



JUROR 072668: I can promise I'd do the best I could.



THE COURT: You don't think there is anything that would prevent you from following that instruction, do you?



JUROR 072668: It's a gut feeling. It's not rationality. So I would do the best I could. There is no reason. It's just a feeling, a hunch.



THE COURT: Probably a hunch?



JUROR 072668: Yeah.



THE COURT: Now you know that we weigh the evidence here. You --



JUROR 072668: The hunches don't work.



THE COURT: Ultimately, you are going to have to find beyond a reasonable doubt that the government has proven its case. If you vote to convict, you cannot vote to convict on hunches.



JUROR 072668: I understand.



THE COURT: So I would remind you of that. I would tell you that the testimony of a police officer or a law enforcement officer is not entitled to more weight just because that person is a law enforcement officer.



JUROR 072668: I understand.



THE COURT: Could you accept that?



JUROR 072668: I would accept that, sure.



THE COURT: Now you also mentioned that you have friends or relatives in law enforcement.



JUROR 072668: Well, I don't now. My father was a police officer. He was a member of the Board of Patrol, County Sheriff. I mean he had a lot of different law enforcement positions.



THE COURT: Where was that?



JUROR 072668: A small town in Arizona.



THE COURT: I take it that you ended up having a pretty warm feeling for your father in the work that he did?



JUROR 072668: Yes.



THE COURT: Would you accept my instructions with all due respect to your father and to you? You have to put your father out of this case.



JUROR 072668: I think under that rationale, I would do my best.



THE COURT: And you would have to put your experience with whatever he may well have been testifying to out of this case.



JUROR 072668: I understand.



THE COURT: And you would have to accept the testimony of any law enforcement witnesses on the one matter and nothing having to do with this case?



JUROR 072668: I completely understand.



THE COURT: Would you accept that instruction?



JUROR 072668: I would do the best that I could; yes.



THE COURT: You also answered the question about your feelings about drugs offenses and whether there's too much or too little enforcement there, or penalties too soft.



JUROR 072668: I can't -- I have to admit it is not a rational feeling. It just makes me angry that so much court time is taken up. I'm a little angry about it.



THE COURT: And I understand that and a lot of us feel anger that there are many things that go on in our communities and in our system. But one thing that we have to do if we are going to be holding people criminally accountable for their behavior, we have got to make sure we put them through a fair process and we require that they be proven guilty if they are.



And you do believe that?



JUROR 072668: I do believe that.



THE COURT: Whether they are drug offenses, whether white-collar crime offenses, whether sex offenders; no matter it is?



JUROR 072668: I understand.



THE COURT: Would you accept my instruction that anger has no place --



JUROR 072668: Yes, I would.



THE COURT: -- In their deliberations?



JUROR 072668: Yes.



THE COURT: And that all -- what you must do is assess the case based on the evidence in this case, not based on your anger, and based on the law that I instruct you.



JUROR 072668: I believe that I could do that.



THE COURT: You believe you could do that?



JUROR 072668: I think so.



THE COURT: And you think you could be fair and impartial and accept those instructions in this case?



JUROR 072668: I think so. I would try.



THE COURT: [Pause].



JUROR 072668: Yes.



* * *



THE COURT: And did you meet your father's co-workers in the law enforcement career?



JUROR 072668: Yes.



THE COURT: Do you find them to be truthful people?



JUROR: Yes.



MR. GORMAN: Is that one of the reasons you give more

(DEFENSE COUNSEL) weight to the police?



JUROR 072668: I think so. As I see it, it is not entirely rational, but I have to be confident --



MR. GORMAN: You can say for sure right now, even with the judge's instructions, you would tend to give more weight to the testimony of the police than anyone else?



JUROR 072668: I would do my best.



THE COURT: You couldn't guarantee?



JUROR 072668: No, not really.



MR. KLINE:

(PxxxxxCUTOR) You responded to a question about the court spending so much time with drug cases, did you mean with the people committing the crimes?



JUROR 072668: That they were committing crime and then take up the court's time.



THE COURT: Okay. Anything further?



MR. GORMAN: Nothing.



THE COURT: Thank you, ma'am.



[Juror 072668 withdrew.]



THE COURT: Mr. Gorman, counsel.



MR. GORMAN: I'd move to strike her for cause. I think the belief she has in the police department would cause her to be unfair and impartial because I think it is ingrained because of the father and the people she's met through him.



MR. KLINE: Your Honor, I defer to the court. She did say she would do her best. All we can ask from most jurors is completely understanding what you were saying about the instructions: you could follow the court instructions? Could you be fair and impartial.



THE COURT: I don't know that we have, we can have extract from any person on the jury what the outcome could be. If anything, I appreciate when she came forward, being honest; that she had come from a law enforcement background where she had this experience. I'm convinced from her responses to my comments that she would try her best to follow the instructions to not give more weight to the credibility of law enforcement officers. I'm going to deny the motion for cause.

(Id. 83-87, 89-91) (emphasis added).

Because the district court denied the cause challenge to juror 072668, (8) who had expressed a clear bias toward law enforcement witnesses, the defense used one of its peremptory challenges to strike the juror. [A. 14] In fact, the defense exercised all of its ten peremptory challenges. [A. 14]

This Court has recognized the need to inquire of a jury panel regarding possible predilections concerning testimony of law enforcement witnesses in cases in which police testimony constitutes a significant part of the pxxxxxcution's evidence. See Brown v. United States, 338 F.2d 543, 545 (D.C. Cir. 1964) (reversible error for district court to deny defendant's request to inquire of prospective jurors whether they would give greater credence to police testimony where virtually entire case for pxxxxxcution consisted of testimony of law enforcement officers). In the present case, seven of the eight government witnesses were FBI agents. Therefore, in ensuring Mr. xxxxx's right to a fair trial, the district court had the responsibility to discover and excuse any jurors who were inclined to give special weight and credence to the testimony of law enforcement witnesses. Although the district court has broad discretion in ruling on cause challenges to prospective jurors, the exercise of that discretion is subject to "the essential demands of fairness." United States v. Cassel, 668 F.2d 969, 971 (8th Cir. 1982) (quoting Aldridge v. United States, 283 U.S. 308, 310 (1931)). Thus, "a defendant cannot receive a fair trial at the hands of jurors who [are] inclined to give unqualified credence to [ ] law enforcement officer[s] simply because [they are] officer[s].'" United States v. Amerson, 938 F.2d 116, 118 (8th Cir. 1991) (quoting Chavez v. United States, 258 F.2d 816, 819 (10th Cir. 1958) (emphasis omitted)).

The district court clearly abused its discretion in denying the cause challenge to juror 072668. In response to the court's general questions concerning evaluation of police testimony, the juror expressed a clear bias in favor of the testimony of law enforcement officers. (2/3/99 a.m. Tr. 83) When the court attempted to exact a promise from the juror that it would follow the court's instructions concerning police testimony, the juror still expressed doubt indicating only that it would "try" and would do its "best." (Id. 84-87, 90) In fact, during the lengthy colloquy in which the court attempted to rehabilitate the juror, the juror gave no less than eight qualified answers concerning its ability to follow the court's instructions in evaluating police testimony. During the course of the questions, the juror indicated that its partiality toward the police was "a gut feeling" and not "rational[ ]." (Id. 84) However, the juror did explain that its father was a police officer, that the juror found its father's co-workers to be truthful people, and that the juror was "angry" that so much court time was taken up in pxxxxxcuting drug offenses. (Id. 85-86, 89-90)

Notwithstanding the district court's persistent questioning, which covers some eight pages of the trial transcript, the juror continued to express doubt as to whether it could refrain from giving more weight to police testimony. Her doubt was expressed again at the very end of the colloquy when defense counsel asked whether the juror, even given the judge's instructions, would give more weight to the testimony of law enforcement witnesses, the juror answered that it would do its "best." (Id. 90) When the district court asked whether the juror could guarantee it would not give special weight to police testimony, the juror answered, "no, not really." (Id.)

A juror is deemed impartial "only if he can lay aside his opinion and render a verdict based on the evidence presented in court . . . ." Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). The district court should have excused juror 072668 because the juror did not affirmatively state that it could lay aside its admitted bias in favor of police testimony. The juror's qualified answers to the court's questions do not support a finding that the juror would be fair and impartial. In fact, the pxxxxxcutor deferred to the court rather than oppose defense counsel's motion to strike the juror for cause. (Id. 91) Moreover, the district court failed to make a finding that the juror could be fair and impartial and, instead, concluded that the juror "would try [its] best to follow the instructions to not give more weight to the credibility of law enforcement officers." (Id.) A juror who cannot affirmatively state that it would be fair and impartial but only that it would "try" and do its "best," cannot be considered an impartial juror. See United States v. Sithithongtham, 192 F.3d 1119, 1121 (8th Cir. 1999) (a juror who "could probably be fair and impartial" cannot be considered impartial; "[p]robably" is not good enough).

Other courts have reversed convictions for the denial of a challenge for cause where a juror indicated a bias toward police testimony. In United States v. Jones, 193 F.3d 948, 950-52 (8th Cir. 1999), the trial court refused to excuse for cause two jurors who expressed a belief that police officers are less likely to lie than other witnesses. The defendant used one of his peremptory challenges to strike one of the jurors but the other one ultimately sat on the jury. Id. at 950. The trial judge denied the challenge to that juror, remarking that the juror had indicated that the police would "tell the facts as they saw them." Id. at 951. The court of appeals concluded that the juror's answers during voir dire did not rehabilitate her and that she was impermissibly biased in favor of police witnesses. Id. On that basis, the court reversed the defendant's conviction. Id. at 952.

Similarly, in United States v. Amerson, 938 F.2d at 117-18, the court of appeals held that the district court erred in failing to remove for cause several jurors who admitted bias in favor of police officer testimony. In reversing the defendant's conviction, the court noted that, "[w]hen jurors express this kind of bias, the district court must either "excuse [the jurors] for cause, or by instruction and additional questions convince the [jurors] that there is no special credence due the testimony of [police officers]." Id. at 118 (additional citation omitted). As in Amerson, the district court here neither excused the biased juror for cause nor convinced the juror that the testimony of law enforcement officers is not inherently more credible than that of other witnesses. By doing neither, the district court in this case failed to "fulfill [its] duty to remove prospective jurors who [would] not be able to follow impartially the court's instructions and evaluate the evidence." Id. at 118 (additional citation omitted). See also United States v. Martin, 749 F.2d 1514, 1516-18 (11th Cir. 1985) (trial court erred by refusing to excuse for cause juror whose "expressions of ability to abide by the evidence presented in court were at most qualified . . . .").

C. The District Court's Erroneous Refusal to Strike

Juror 072668 for Cause Constitutes Reversible Error



Under Fed. R. Crim. P. 24(b), a defendant in a felony case is entitled to ten peremptory challenges. Mr. xxxxx had to use a peremptory challenge to strike juror 072668 because the district court refused to excuse that juror for cause. Thus, the court's erroneous denial of the cause challenge to juror 072668 violated Mr. xxxxx's Fifth Amendment right to due process by denying or impairing his right to the full complement of peremptory challenges to which he was entitled under Rule 24(b). See United States v. Martinez-Salazar, 146 F.3d 653, 657-59 (9th Cir. 1998), cert. granted, 119 S. Ct. 2365 (1999). In Martinez-Salazar, the Ninth Circuit held that the district court's erroneous refusal to excuse a juror for cause violates due process where the defendant expends a peremptory challenge to remove the juror that should have been excused for cause. Id. at 657. The court concluded that such an error requires automatic reversal of the defendant's conviction. Id. at 659.

There is a conflict in the circuits as to whether reversal is required when a district court erroneously denies a defense motion to remove a potential juror for cause, thereby causing the defendant to use a peremptory challenge to remove that juror. Compare United States v. Serino, 163 F.3d 91(1st Cir. 1998) (automatic reversal required); United States v. Ruuska, 883 F.2d 262, 267-68 (3d Cir. 1989) (same); United States v. Hall, 152 F.3d 381, 408 (5th Cir. 1998) (same), cert. denied, 119 S. Ct. 1767 (1999); United States v. McFerron, 163 F.2d 952, 955-56 (6th Cir. 1998) (same); United States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997) (same), cert. denied, 118 S. Ct. 2341 (1998), with United States v. Gibson, 105 F.3d 1229, 1233 (8th Cir. 1997) (requiring showing of prejudice); United States v. McIntyre, 997 F.2d 687, 698 n.7 (10th Cir. 1993) (same); United States v. Farmer, 923 F.2d 1557, 1566 & n.20 (11th Cir. 1991) (same). (9)

In light of the split in the circuits on this issue, the Supreme Court granted the government's petition for a writ of certiorari in Martinez-Salazar on the following question:

Whether a defendant is entitled to automatic reversal of his conviction when he uses a peremptory challenge to remove a potential juror whom the district court erroneously failed to remove for cause, and he ultimately exhausts his remaining peremptory challenges.

In the present case, the district court's erroneous denial of the cause challenge to juror 072668 violated Mr. xxxxx's due process right to use his peremptory challenges under Rule 24(b) solely to strike those jurors who would not otherwise be excused for cause. The district court's effective denial of Mr. xxxxx's right to exercise his full complement of peremptory challenges requires reversal of his conviction.

II. THE DISTRICT COURT'S ERROR IN ADMITTING HEARSAY TESTIMONY THAT THE FBI HAD INFORMATION THAT MR. xxxxx WAS INVOLVED IN DRUG TRAFFICKING VIOLATED HIS CONFRONTATION RIGHTS AND CONTRIBUTED TO THE JURY'S REJECTION OF HIS ENTRAPMENT DEFENSE

 

A. Standard of Review

The district court's admission of improper hearsay testimony under Fed. R. Evid. 801 & 802 is subject to review for abuse of discretion. United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994). Whether admission of the hearsay testimony violated Mr. xxxxx's Sixth Amendment confrontation rights is reviewed de novo. United States v. Wilson, 160 F.3d 732, 739 (D.C. Cir. 1998), cert. denied, 120 S. Ct. 81 (1999).

B. The District Court Erroneously Permitted the Government to Introduce Highly Prejudicial Hearsay Testimony Indicating that Mr. xxxxx was a Drug Dealer

FBI Special Agent Neil Darnell testified as the government's first witness at trial. He explained to the jury that a prison inmate named Thomas xxxxx agreed to provide the FBI with information about potential investigations in return for the FBI's assistance in helping him obtain a sentence reduction and a favorable disposition of other charges that were pending against him. (2/4/99 Tr. 84-87) Darnell testified that as part of Thomas xxxxx's cooperation agreement, his uncle George xxxxx, agreed to work with the FBI by arranging to purchase drugs from Mr. xxxxx. (Id. 25-26, 93) When the pxxxxxcutor asked Darnell how he "came about knowing Mr. xxxxx," defense counsel objected and the following bench conference occurred:

MR. GORMAN:

(Defense Counsel) I object to the open-ended question as a result of the hearsay about what Thomas xxxxx said to anybody. He is not a witness in the case, and what he said should not come in through the back door.

And I think that all the witnesses, including this one, should be admonished to not to make any statements as to what Thomas xxxxx said to anyone, because we are not going to get a chance to cross-examine.



That's why I think that kind of question may lead to that kind of answer.



MR. KLINE:

(PxxxxxCUTOR) Those are non-hearsay. I'm trying to establish where the FBI met with George xxxxx and why they did what they did with George xxxxx.



THE COURT: I will allow it and if there is inadmissible hearsay, I will sustain the objection.



MR. KLINE: I will try to narrow my questions, Your Honor.



(Id. 26-27)



After the court overruled the objection, the pxxxxxcutor asked Darnell why he specifically discussed Mr. xxxxx with George xxxxx and Darnell answered:

We had received Mr. -- or information that Mr. xxxxx was involved in drug trafficking and -- [defendant's objection overruled] Mr. xxxxx was in a position to directly go in and approach Mr. xxxxx about narcotics.



(Id. 27) The pxxxxxcutor then asked if that information came from Thomas xxxxx and Darnell answered affirmatively. (Id.) The district court sustained defense counsel's objection, granted his motion to strike the answer and instructed the jury to disregard it. (Id. 27-28) Apparently undeterred, the pxxxxxcutor again asked where that information came from and Darnell answered that, "[i]t came from a source." (Id. 28) Defense counsel made the same objection and the court sustained it, struck the answer, and again instructed the jury to disregard it. (Id.)

A short time later, defense counsel requested a bench conference and moved for a mistrial based upon the admission of Darnell's hearsay testimony that the FBI had information that Mr. xxxxx was a drug dealer and the pxxxxxcutor's improper follow-up questions, which were designed to elicit that Thomas xxxxx was the source of that information. (Id. 30-32) The district court denied the mistrial motion without prejudice to renewing it later in the trial. (Id. 32) When counsel renewed the motion at the close of the government's case-in-chief, after the defense rested, and at the close of all the evidence, the court made the same ruling. (2/5/99 a.m. Tr. 57-58, 145; 2/5/99 p.m. Tr. 5-6)



The district court should have precluded the government from presenting evidence that the FBI had information that Mr. xxxxx was involved in drug trafficking. Defense counsel objected on hearsay and confrontation grounds to the pxxxxxcutor's question as to how the FBI knew about Mr. xxxxx. (2/4/99 Tr. 26) In fact, defense counsel anticipated that the question would elicit hearsay testimony of Thomas xxxxx's statements to the FBI concerning Mr. xxxxx. (Id.) The district court overruled the objection but noted that if Darnell's response to the question contained "inadmissible hearsay," the court would sustain the objection. (Id.) Although Darnell's answer that the FBI had received information that Mr. xxxxx was involved in drug trafficking demonstrated that defense counsel's objection was right on the mark and that the evidence should have been excluded, the district court overruled counsel's renewed objection. (Id. 27) During a later colloquy concerning defense counsel's renewed mistrial motion, the court acknowledged that it "might have been a mistake to overrule the objection . . . ." (Id. 41)

The reason the FBI focused its investigation on Mr. xxxxx had limited, if any, probative value. In any event, the probative value was insufficient to offset the severe prejudice to Mr. xxxxx resulting from Darnell's hearsay testimony directly implying that Mr. xxxxx was involved in drug trafficking before he committed the offenses charged in this case. By presenting Darnell's hearsay testimony that the FBI had information that Mr. xxxxx was a drug dealer, and then asking a leading question as to whether Thomas xxxxx was the source of that information, the pxxxxxcutor was able to introduce indirectly highly prejudicial hearsay testimony of Thomas xxxxx without calling him as a witness and subjecting him to cross-examination. Although the district court struck Darnell's answer, the damage was done when the jury heard the pxxxxxcutor's leading question and the answer to it before defense counsel objected. (Id. 27-28)

The pxxxxxcutor's later cross-examination of Mr. xxxxx, in which the pxxxxxcutor tried to establish that xxxxx was predisposed to commit the charged crimes by asking whether he and Thomas xxxxx had distributed drugs together (2/5/99 a.m. Tr. 142-44), put before the jury in an indirect manner the government's theory that Thomas xxxxx knew Mr. xxxxx was involved in drug trafficking because they previously had sold drugs together. Thus, the pxxxxxcutor exploited the combined effect of Darnell's inadmissible hearsay testimony that the FBI had information concerning Mr. xxxxx's drug trafficking and the pxxxxxcutor's improper leading question designed to elicit testimony that Thomas xxxxx was the source of that information. In fact, the pxxxxxcutor intended to argue in closing argument that Darnell's hearsay testimony was evidence of Mr. xxxxx's predisposition, but the district court prohibited that argument. (2/5/99 p.m. Tr. 18-19)

This Court consistently has rejected the notion that evidence does not constitute hearsay merely because it provides to the jury information concerning the "background" of the government's investigation. In United States v. Hilliard, 569 F.2d 143, 146 (D.C. Cir. 1977), the pxxxxxcutor elicited police testimony suggesting that unknown witnesses to an armed robbery identified the defendant as the robber. Despite the government's argument that the police testimony was not hearsay because the evidence was offered to explain why the police had included the defendant's picture in a photographic array, the court repudiated the government's contention and reversed the conviction:

We reject this argument. There was no issue as to the presence of Hilliard's picture in the array, and therefore no occasion for any explanation. In any event, explanation of a photographic array cannot be allowed to repeal the hearsay rule.



Id. at 146. See also United States v. Small, 74 F.3d 1276, 1282-83 (D.C. Cir.) (recognizing tension between pxxxxxcutor's effort to provide full context of investigation with district court's instructions that pxxxxxcutor "avoid prejudicial matters relating to the investigative techniques of law enforcement officials"), cert. denied, 517 U.S. 1229 (1996); United States v. Clarke, 24 F.3d at 267 (admission of police "background" testimony "questionable" but "harmlessly cumulative"); United States v. Freeman, 514 F.2d 1314, 1317 (D.C. Cir. 1975) (reversing conviction on grounds, inter alia, that police testimony recounting witness's tip was hearsay and not admissible to explain why police went to defendant's house; hearsay "problem could have been avoided entirely simply by restricting the officer's testimony to a statement that he received certain information leading him to the [defendant's] address;" no limiting instruction given), vacated on other grounds, 598 F.2d 306 (D.C. Cir. 1979); 2 McCormick On Evidence 249 at 104 (4th ed. 1992) ("[Officer's] testimony that he acted 'upon information received,' or words to that effect, should be sufficient [to explain background for his conduct]. However, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight; the likelihood of misuse is great.").

Other courts have adopted a similar approach. In United States v. Johnson, 439 F.2d 885, 887-89 (5th Cir. 1971), the government introduced through a Custom's agent testimony that an unnamed informant overheard a conversation in which the defendant stated that he was planning a drug smuggling trip. Although the district court instructed the jury that the testimony was admitted not for the truth but only to show why the agents were on the look- out for the defendant, the court of appeals held that the hearsay testimony was improperly admitted because a jury could have considered it to prove the defendant's intent to enter the drug conspiracy with which he was charged. Id. at 888-89. Concluding that the constitutional error in admitting the hearsay testimony, which was not subject to confrontation, was not harmless beyond a reasonable doubt, the court reversed the defendant's conviction. Id. at 889.

In United States v. Reyes, 18 F.3d 65, 69-72 (2d Cir. 1994), the court held that the testimony of a law enforcement witness regarding statements by two persons implicating the defendant in a drug trafficking conspiracy did not constitute clarifying, noncontroversial "background" evidence. The court indicated that such evidence is admissible only if its non-hearsay purpose is relevant under Fed. R. Evid. 401 and the probative value of the evidence for its non-hearsay purpose outweighs the danger of unfair prejudice resulting from the impermissible hearsay use of the evidence under Fed. R. Evid. 403. Id. at 70. The court noted that the mere identification of a non-hearsay use of "background" evidence is insufficient to justify its admission if the jury is likely to consider it for its truth and if the evidence is potentially prejudicial. Id. at 71. Since the evidence directly implicated the defendant in the charged drug conspiracy, the court held that the evidence was inadmissible and reversed the defendant's conviction. Id. at 71-72. See also United States v. Forrester, 60 F.3d 52, 59-61 (2d Cir. 1995) (officer's hearsay testimony concerning information provided by informant that led police to believe investigation of defendant involved drugs inadmissible; conviction reversed); United States v. Figueroa, 750 F.2d 232, 238-41 (2d Cir. 1984) (erroneous admission of undercover detective's testimony reciting statements made by police informant during telephone conversations with defendant constitutes reversible error).

Notwithstanding the pxxxxxcutor's argument that Agent Darnell's testimony relating the information obtained from Thomas xxxxx was not hearsay because it was introduced to show why the FBI focused its investigation on Mr. xxxxx, the principal purpose of that evidence was an impermissible one -- to convey to the jury that the government knew of drug crimes committed by Mr. xxxxx before the two transactions involved in this case. See United States v. Crowder, 131 F.3d 1202, 1205 (D.C. Cir. 1998) (evidence of other crimes inadmissible under Fed. R. Evid. 404(b) to prove defendant's propensity to commit crime). Moreover, although Mr. xxxxx raised an entrapment defense, the hearsay evidence was not admissible to prove his predisposition to commit the charged offenses. See United States v. Webster, 649 F.2d 346, 351 (5th Cir. 1981) (hearsay inadmissible to prove predisposition); United States v. Catanzaro, 407 F.2d 998, 1000-01 (3d Cir. 1969) (same). In sum, if evidence is "both permissible background and highly prejudicial, otherwise inadmissible hearsay, fairness demands that the government find a way to get the background into evidence without the hearsay." United States v. Alonzo, 991 F.2d 1422, 1426-27 (8th Cir. 1993).

C. The Erroneous Admission of the Prejudicial Hearsay Testimony is not Harmless Beyond a Reasonable Doubt



By indicating that Mr. xxxxx previously distributed drugs, Agent Darnell's hearsay testimony provided information critical to the pxxxxxcution's case. In addition to the danger that the jury considered the testimony as propensity evidence, the jury also could have considered it as evidence that xxxxx was predisposed to commit the charged offenses and, therefore, was not entrapped. Except for an arguable inference from xxxxx's own statements made during his conversations with George xxxxx, there was no evidence that xxxxx committed any prior drug offenses or otherwise was predisposed to sell drugs. Thus, without receiving any instructions to the contrary, it is likely that the jury considered Darnell's testimony that the FBI had information that xxxxx was involved in drug trafficking as evidence of his willingness to distribute drugs to xxxxx. In fact, the court's entrapment instruction informed the jury that it could consider "evidence of the defendant's similar conduct" in determining whether he was ready and willing to commit the charged crimes. (2/5/99 p.m. Tr. 37-37) Since the government did not present any other evidence of prior drug offenses, the instruction that prior similar conduct was a proper means of establishing predisposition suggested to the jury that it could use the hearsay testimony concerning the FBI's information that xxxxx was a drug dealer, as proof of his predisposition.

Moreover, the hearsay declarant was a cooperating witness, who was unavailable for cross-examination because the government failed to produce or call him as a witness. Therefore, the admission of the prejudicial hearsay testimony implicates Mr. xxxxx's Sixth Amendment confrontation rights and thus, rises to the level of constitutional error. See United States v. Jordan, 810 F.2d 262, 264-65 (D.C. Cir. 1987) (admission of hearsay testimony without special indicia of reliability could implicate defendant's constitutional right to confront witnesses against him) (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)). Since the inadmissible hearsay evidence related to Mr. xxxxx's predisposition to commit the drug distribution crimes charged in this case, the government cannot show beyond a reasonable doubt that the error in admitting the evidence did not contribute to the jury's rejection of his entrapment defense and, therefore, is harmless. See United States v. Cunningham, 145 F.3d 1385, 1393-94 (D.C. Cir. 1998) (constitutional harmless error rule applies to error implicating confrontation rights) (citing Chapman v. California, 386 U.S. 18, 24 (1967)), cert. denied, 119 S. Ct. 917 (1999). Since, at a minimum, there is uncertainty as to the effect of the inadmissible hearsay testimony on the jury's verdict, the error cannot be deemed harmless. See O'Neal v. McAninch, 513 U.S. 432, 435-36 (1995). Thus, Mr. xxxxx's conviction must be reversed.

III. THE DISTRICT COURT ERRED IN REFUSING TO SENTENCE MR. xxxxx UNDER THE "SAFETY VALVE" PROVISION OF THE SENTENCING GUIDELINES AND IN DENYING A DOWNWARD DEPARTURE FOR EXTRAORDINARY FAMILY CIRCUMSTANCES

A. Standard of Review

This Court reviews the district court's interpretation of the safety valve provision of the sentencing guidelines de novo and reviews its factual findings for clear error. United States v. DeJesus-Gaul, 73 F.3d 395, 397 (D.C. Cir. 1996); United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). In reviewing the district court's denial of a downward departure, this Court is confined to determining whether there has been a mistake of law or an incorrect application of the sentencing guidelines. United States v. Leandre, 132 F.3d 796, 800 (D.C. Cir.), cert. denied, 523 U.S. 1131 (1998).

B. The district court applied the wrong standard in concluding that Mr. xxxxx failed to provide sufficient information to the government to qualify for safety valve relief



The district court denied Mr. xxxxx's request to be sentenced under the "safety valve" provisions of 18 U.S.C. 3553(f) and its guideline equivalent, U.S.S.G. 5C1.2. (5/14/99 Tr. 32-33) Without making specific findings, the court concluded that Mr. xxxxx did not satisfy the fifth criterion of the safety valve, which requires that the defendant provide truthful information and evidence to the government "concerning the offense or offenses that were part of the same course of conduct or a common scheme or plan . . . ." 3553(f)(5); 5C1.2(5). At the sentencing hearing, Mr. xxxxx contended that his post-arrest statements to FBI agents, combined with his trial testimony, constituted a full and candid disclosure of all information in his possession concerning the charged offenses. (5/14/99 Tr. 26-27)

The court did not make a specific finding that any of the information Mr. xxxxx provided to the government was untruthful. Instead, the court inferred from the taped conversations between Mr. xxxxx and cooperating witness George xxxxx that xxxxx previously had been involved in drug trafficking. (Id. 33) On that basis, the court concluded that it was "not certain that the evidence would support the safety valve provision under 5C1.2, or a generalized conclusion that Mr. xxxxx had not been involved in this activity beforehand, or was not ready and willing to commit the offense when afforded an opportunity to do so." (Id.) Although it is less than clear from this record, the district court apparently refused to apply the safety valve provision because it determined that Mr. xxxxx had failed to provide the government all information about prior drug transactions. In requiring such disclosure, the court misapplied subsection (5) of the safety valve provision.

Subsection (5) clearly indicates that the defendant must provide all the information that he has about his offenses of conviction and about offenses that were part of the same course of conduct or common scheme. In fact, the Sentencing Commission has interpreted this provision to "mean the offense of conviction and all relevant conduct." U.S.S.G. 5C1.2, comment.(n.3). This commentary is an authoritative interpretation of the guideline and governing statute. Stinson v. United States, 508 U.S. 36, 38 (1993). In his post-arrest statements to FBI agents and his trial testimony, Mr. xxxxx provided complete and truthful information concerning his offenses of conviction. In fact, he identified in surveillance photographs the two individuals who provided the drugs xxxxx distributed to George xxxxx. (2/4/99 Tr. 80-81) Moreover, xxxxx testified at trial that a friend named Charles Boyd contacted the source who provided xxxxx with the drugs. (2/5/99 a.m. 112-15) The government failed to produce any evidence that Mr. xxxxx was involved in other offenses that were part of the same course of conduct or common scheme. The government did not point to any information concerning the offenses of conviction or any relevant conduct which Mr. xxxxx must have known and failed to disclose. In fact, there is no specific information the government alleged that Mr. xxxxx possessed and failed to provide. Under these circumstances, the district court's unsupported conclusion that Mr. xxxxx did not provide complete information about speculative prior drug trafficking is insufficient to justify the court's denial of safety valve relief. See United States v. Miranda-Santiago, 96 F.3d 517, 529-30 (1st Cir. 1996) (district court erroneously denied safety valve sentence where government did not point to specific information defendant allegedly failed to provide).

C. The district court underestimated its authority to depart for Mr. xxxxx's extraordinary family circumstances

Mr. xxxxx requested a downward departure from the applicable guideline range on the grounds of extraordinary family circumstances that he was the sole support of his wife and five children, his wife was suffering from cancer, and there were no family members available to care for his children. (5/14/99 Tr. 11-12) The PSR identified these factors as possible grounds for departure. (PSR, p. 13, 71) However, concluding that this circuit's precedents do not permit a departure "for single parents losing custody of their children because the parents might be imprisoned and those children might have to fall into foster care," the district court categorically denied a departure based on extraordinary family circumstances. (5/14/99 Tr. 33-34) By focusing solely upon the effect Mr. xxxxx's incarceration would have on his children without considering the disruption and impact his imprisonment would have on his wife and entire family unit, the court underestimated the extent of its departure authority.

As noted in the PSR, Mr. xxxxx was the sole support of his wife and their two children, as well as his wife's two daughters from another relationship. (PSR, p. 8, 33, 34) (10) Mr. xxxxx not only was solely responsible for the financial support of his family but also was needed to care for his ill wife, to pay her medical bills, and help take care of the children. Without Mr. xxxxx's financial support and presence at home, the family unit was likely to deteriorate significantly. By only considering the impact of Mr. xxxxx's absence on the children, the district court failed to weigh the totality of the extraordinary family circumstances when it denied a departure.

This Court has indicated that the possible placement of children in foster care due to the defendant's imprisonment does not constitute a sufficiently extraordinary circumstance to justify a departure. See United States v. Leandre, 132 F.3d at 807-08; United States v. Dyce, 91 F.3d 1466-68 (D.C. Cir.), cert. denied, 519 U.S. 1018 (1996). However, neither Leandre nor Dyce involved a circumstance in which the defendant's spouse suffered from a serious illness and the defendant was needed to pay her medical bills and help care for her. Other courts have recognized that such extraordinary family circumstances justify a departure. See, e.g., United States v. Tocco, No. 98-2312/2426, 2000 WL 3849 (6th Cir. Jan. 5, 2000) (district court granted 2-level downward departure where defendant personally required to take care of seriously ill spouse; remanded for court to make specific findings regarding defendant's personal involvement in care and support of wife); United States v. Haversat, 22 F.3d 790, 797 (8th Cir. 1994) (departure affirmed where defendant actively involved in caring for wife who suffered from severe mental health problems); United States v. Gaskill, 991 F.2d 82, 84-86 (3d Cir. 1993) (departure denial reversed where defendant was sole caretaker of mentally ill wife); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991) (departure affirmed where family depended upon defendant for financial support and defendant helped care for disabled father who resided with defendant, wife, and two daughters). Because the district court failed to consider the impact Mr. xxxxx's incarceration would have on his wife and her ability to maintain the stability of the family, Mr. xxxxx's sentence should be vacated and a resentencing ordered for the district court to consider the totality of extraordinary family circumstances in determining whether a departure is appropriate in this case.


CONCLUSION

For the foregoing reasons, this Court should reverse Mr. xxxxx's conviction and remand his case to the district court for a new trial. Failing that, Mr. xxxxx's sentence should be vacated and a resentencing ordered.

Respectfully submitted,



A. J. KRAMER,

FEDERAL PUBLIC DEFENDER







NEIL H. JAFFEE

JENNIFER BLUNT

ASSISTANT FEDERAL PUBLIC DEFENDERS

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500













CERTIFICATE OF LENGTH



I hereby certify that the foregoing brief for appellant, Cornell Francis xxxxx, contains 10,632 words and does not exceed the word limit of Fed. R. App. P. 32(a)(7).







NEIL H. JAFFEE









CERTIFICATE OF SERVICE



I hereby certify that on January 12, 2000, two copies of the

foregoing brief for appellant Cornell Francis xxxxx and one copy of

the accompanying Appendix were served by hand on John R. Fisher,

Chief, Appellate Division, United States Attorney's Office, 555

Fourth Street, N.W., Room 8104, Washington, D.C. 20001.







NEIL H. JAFFEE



















































































1. "A" refers to pages of the Appendix filed with this brief. The references to the transcript of the district court proceedings are cited by date and page number (e.g., "2/3/99 Tr. __") and trial exhibits are cited by the exhibit numbers (e.g., "Gov. Ex. __"). Pertinent portions of the transcript are contained in the Appendix behind Tabs A-E.

2. After the court conducted an individual voir dire of juror 079667, who also had indicated a bias toward police testimony, the juror stated it could follow the court's instructions concerning the testimony of law enforcement witnesses, and the defense did not move to strike the juror for cause. (2/3/99 p.m. Tr. 182-94)

3. The parties stipulated that Gov. Ex. 4 contained 60.28 grams of crack cocaine. (2/5/99 a.m. Tr. 55)

4. The parties stipulated that Gov. Ex. 17 contained 123.9 grams of cocaine hydrochloride. (2/5/99 a.m. Tr. 55)

5. The parties stipulated that Gov. Ex. 20 contained 1.6 grams of cocaine powder. (2/5/99 a.m. Tr. 55)

6. The defense presented evidence that Mr. Boyd died on December 23, 1997. (2/5/99 a.m. Tr. 113-14; Def. Ex. 2)

7. Mr. xxxxx's PSR is filed separately under seal as part of the Appendix.

8. In denying the pxxxxxcutor's Batson objection to defense counsel's use of a peremptory strike against juror 072668, the district court acknowledged that the juror had "some significant baggage" that gave the court "some pause," but the court "was confident that given [the juror's responses after [the court's] questioning she would be able to do her duty and be a fair juror." (2/3/99 p.m. Tr. 2262-63)

9. The law in the Second and Fourth Circuits is unsettled. See, e.g., United States v. Taylor, 92 F.3d 1313, 1325 (2d Cir. 1996) (automatic reversal), cert. denied, 519 U.S. 1093 (1997); United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994) (prejudice required); United States v. Ricks, 802 F.2d 731, 734 (4th Cir.) (en banc) (automatic reversal), cert. denied, 479 U.S. 1009 (1986); United States v. Love, 134 F.3d 595, 600-03 (4th Cir.) (prejudice required), cert. denied, 118 S. Ct. 2332 (1998).

10. Mr. xxxxx also helped support his daughter from a prior relationship. (PSR, p. 9, 35)