UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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NOS.

(CONSOLIDATED)

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THE UNITED STATES OF AMERICA,



Appellee,



v.



xxxxxxxxxxxxxxxxxxx,

xxxxxxxxx, and

xxxxxxxxxxxxxx,



Appellants.

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CONSOLIDATED APPEALS FROM JUDGMENTS

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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INDIVIDUAL BRIEF FOR APPELLANT xxxxxxxxxx

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GUIDELINES



Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5), pertinent Sentencing Guidelines are set forth in the Addendum hereto.

ISSUES PRESENTED

1. Whether the Government failed to present legally sufficient proof, in support of the charge of aiding and abetting attempted possession of cocaine with intent to distribute, that xxxxxxxxxx's mere following of the purported drug courier in fact helped him or xxxxxxxxxx's employer, Agent Olivier.

2. Whether the judge erred in imposing an increase of two offense levels for obstruction of justice because xxxxxxxxxx denied at trial that he knew, before Agent Olivier told him so, that the prospective "security work" involved drug running.

3. Whether the judge erred in refusing to grant a decrease of two offense levels for the minor role in the offense played by xxxxxxxxxx, who was the last officer recruited, who brought in no one else, and who did not attend the meetings on September 16 and November 16, 1993.

STATEMENT OF THE CASE

The charges and sentences are summarized in the Procedural Background section of appellants' joint brief, and the essential facts alleged by the government are set forth in the Government's Case section of that brief.

Mr. xxxxxxxxxx's Defense

The last recruit for the alleged conspiracy was defendant Troy E. xxxxxxxxxx. When he testified, about a year after most of the events in question, he was living with his parents, was engaged to Alicia xxxxxxx, the mother of his four-month-old daughter, and was a member of the Full Gospel A.M.E. Zion Church (T2200-01).

One of nine siblings, xxxxxxxxxx grew up in Clinton, Maryland, completing high school in 1987 with grades of "C" and below (T2201). In 1989, encouraged by a cousin in the MPD, xxxxxxxxxx applied to the D.C. Police Academy because he "wanted to make a difference," and when he was admitted in December, 1990, he was surprised and he "just started telling everybody, 'They accepted me. They accepted me.'" (T2202-03, 2259). Although he failed his first Academy test on the D.C. Code, he passed it on his second try, and he graduated in June, 1991, without ever having been taught how to recognize and handle "an approach in a police corruption context" (T2206, 2353-54).

xxxxxxxxxx was initially assigned to a foot beat in the Fifth District ("5D") with Officer Edward A. Hanner, who trained him, among other things, to set up observation posts and to recover drugs and guns (T2210-11). xxxxxxxxxx enjoyed the job and initially thought his biweekly take-home pay of $525 was a lot of money (T2211). (1) He moved from his family's home to an apartment he rented in Virginia, but by the end of 1991 and early 1992, he became unable to keep up payment of his bills for the apartment, his car, and his other purchases, and he was evicted, his car was repossessed, and he moved "back home" and declared personal bankruptcy (T2212-14).

In December, 1992, xxxxxxxxxx met Ms. xxxxxxx; before long they became engaged and she became pregnant, had a miscarriage, and became pregnant again; and during the summer of 1993 he moved in with her so that they would be together and settled when the baby came (T2214, 2217). Generally reticent about his problems, he then discussed them with his close friend, Corey Harmon, and as a result of that conversation, William Hackney told xxxxxxxxxx about some "private," "part-time," security employment (T2217-18, 2221-22). (2) Harmon did not tell him that the employer was a drug dealer (T2267-68).

Hackney, a casual acquaintance from 5D (whose wedding reception xxxxxxxxxx had attended upon Hackney's open invitation to 5D personnel), told him that the potential employer was a "business dude" who had been robbed previously and carried a lot of money, that he would want to meet xxxxxxxxxx, and that Nygel Brown would contact him to arrange the interview (T2223, 2269-70, 2395-96). Hackney said nothing about drugs (id.). He said the job was merely to "follow someone from point A to point B and get paid," and xxxxxxxxxx thought it was "too easy to be true," but he intended to see whether the work was "something I want to do" (T2224).

Brown, also an acquaintance but not a friend from 5D, called xxxxxxxxxx in September, 1993, and in an attempt to find out more, xxxxxxxxxx "talk[ed] a lot of trash," but no further plans were made (T2224-25). Brown, like Hackney, did not tell xxxxxxxxxx that Olivier was a drug dealer (T2272). (3) In late September, Hackney called again and told xxxxxxxxxx to go to Brown's house on October 4, and when he did so, Brown led xxxxxxxxxx to the house on Newton Street (T2225).

Seeing a house, rather than a "business building," xxxxxxxxxx wondered what was "going on," but he reasoned that some people do business from their houses, and he went in and met Agent Olivier (T2226). He lied and told Olivier that he had been unable to come previously because he had been on a homicide case, and after about five minutes, Olivier told him the job involved drugs (T2226). xxxxxxxxxx (having seen in movies that drug dealers shoot people) started thinking about how he might "get out" and what might happen to him if he said, "No" , and he began to get nervous--swallowing, hands sweating, and feeling dazed--as he had when he faced fights as a child (T2227). Jose did tell him that he did not have to work for him if he did not want to, but he did not believe Jose (T2359). In this "scared" state, he "talk[ed] trash" again, claiming falsely that he knew a "hit man" as well as Rayful Edmond, and he said he thought the job would be "cool" (T2227-28, 2360).

Upon leaving, xxxxxxxxxx felt relieved but uncertain whether or not to come back as he was told, because he did not know what would happen to him if he did not; ultimately, he decided to take the money because his financial crisis had not improved (T2228, 2230). He also decided, however, that he "wasn't going to do what [he] was hired to do" (T2228). He was driving his fiancee's car (T2313). He intended to follow the courier's car from the house to the beltway, "to get the money and go home," but, as he made "clear" to Mark Reid, his companion in the car on October 5, "if anything come [sic] about with this car, we're not stopping, I'm gone" (T2229, 2252, 2301-03, 2342). xxxxxxxxxx was required by MPD rules to carry his badge and gun at all times, and he did carry them that day, but he planned to do "nothing" with them pursuant to his agreement with Olivier (T2229, 2252-53, 2295, 2367-68). He followed the car because the "drug kingpin" told him to do so and he was scared of him (T2369-71).

Reid telephoned Brown after they finished following the courier, and xxxxxxxxxx got on the telephone and talked to Hackney, who told him to return to Olivier's house (T2297-98). They did so, and there Olivier gave them each $2000, telling xxxxxxxxxx but not Reid to count it (T2299-2300). At Olivier's request, xxxxxxxxxx also showed him his gun (T2300). In leaving, xxxxxxxxxx responded to Olivier's question about his willingness to do the same thing again by saying, "No problem" (T2301). xxxxxxxxxx said he spent the $2000 for the October 5 job on a rear end for the used Porsche he had bought in December, 1992, from a man on his beat for $8000, paying $1000 down and agreeing to pay the balance at $500 a month (T2238-39). Ultimately, however, he could not get the car running or keep up the payments, so he gave it back (T2239).

Concerning his recorded conversation later on October 5 with Brown and Hackney about Reid, among other subjects, xxxxxxxxxx explained that they both had been "scared" in the car, and he said that he did not sound scared talking to Brown and Hackney because he was "just fronting" (as he commented he was doing again on the witness stand) (T2229-30, 2306). Hackney told him at that time that he had wanted him to go with Harmon, and he indicated that he would prefer to work with Harmon, thinking they could protect each other (T2306, 2313). xxxxxxxxxx also feigned unconcern that a woman on the street near the house might call the police, and he lied about having seen a larger shipment of cocaine before (T2308-12).

xxxxxxxxxx did not initiate contact with Brown and Hackney after October 5 (T2230). On October 19, Hackney got in touch with him and told him that Olivier wanted to see him, and he wondered why and got nervous again (T2230, 2316, 2320). Hackney told him to go to Olivier's house on October 20 and, while he was on duty, he did so, meeting Olivier and discussing his friend James Henry, who he falsely told Olivier was a "hit man" (T2231, 2318-2319). It "popped in [his] mind" to do that because Henry was a boxer and "Hit Man" was his ring nickname (T2231). (4) He also told Olivier he was ready and willing to work for him again (T2320). He was still nervous and he was concerned that someone would emerge through one of the doors in the house and do something to him if he "actually told the truth" (T2232). And when he left, he thought again about how he might "get out of this" (id.).

Hackney called him afterward, summoning him to a meeting with "all of us" on November 16, but xxxxxxxxxx did not want to go, so he falsely told Hackney that he had to stay with his partner (T2232-33). (5) On that day, Hackney paged him for Olivier, and when he called back, Olivier told him, "I just want to make sure you [sic] still on board" (T2233). Because he was still scared, xxxxxxxxxx answered affirmatively (id.).

On the night of December 13, Hackney called xxxxxxxxxx again to tell him about the meeting at the hotel on December 14, and the next morning, Hackney called again and told him to bring a car "because dude said you need to bring a car" (T2234). He understood that the meeting would be followed by another drug courier protection job, for which he would receive another $2000 (T2255). He again thought about not going, but he considered the possible adverse consequences and needed the money, so he decided to show up, let "drug kingpin" Jose think he was "with him," and take the money (T2234-35). Again, he never intended to do anything on December 14 with the badge and gun he normally possessed (T2241-42, 2255, 2367).

Early on December 14, xxxxxxxxxx went to the house of Sean Wiggins, and then xxxxxxxxxx and Harmon went to a Hardee's restaurant and I told him I never felt good about this and I'm thinking of ways of how to get out of it, and I told him we should start taking notes on this Jose dude and think about setting him up.(T2237). He went to the meeting on December 14 because he still needed money and was still scared of the drug kingpin and his likely "hit people" (T2383-2384, 2403).

On cross-examination, xxxxxxxxxx acknowledged that because he was scared, he had taken $2000 and intended to take $2000 more for not arresting the apparent drug dealer, Jose, and his courier, which his duty as a police officer required (T2245-47). On redirect, however, xxxxxxxxxx explained that his refraining from arresting Jose was never discussed, and he did not believe then that he was being paid for that (T2403-04). He also acknowledged that before October 5, he knew that he was joining Hackney and Brown in agreeing to help Jose's drug business by protecting the courier, and that at the October 5 morning meeting with Jose, Vikki Childress, Mark Reid, Dwayne Washington, and Darryl Lawson, all armed police officers, were also present (T2250-52, 2256-57, 2284). (6) And he admittedly never saw Jose with a gun or was threatened by him, while he was told by Jose to bring his gun, badge, and credentials on the job "just in case something went wrong" (T2255-56, 2290, 2292). Apart from the events in question, however, he was never associated with drugs or drug dealers, and he had never considered associating with dealers, taking a bribe, or using his gun illegally (T2242). (7)

xxxxxxxxxx admittedly knew that taking the $2000 was wrong, but he said that given his lack of training, he did not know then what he said he knew at trial--that he should have said "No" to Olivier and "notified the proper people" (T2385).

Six other witnesses testified in xxxxxxxxxx's defense. James Henry, a close friend of xxxxxxxxxx for about six years, testified that he was a successful amateur boxer who had been compared to the professional, Thomas "the Hit Man" Hearns, and thus he was called "Little Hit Man Henry" (T2434-37). In denying that he was "a hit man," Henry laughed because it was "a joke" (T2434). He testified that xxxxxxxxxx had cried when he apologized for bringing Henry's name into the case, and that he had never known xxxxxxxxxx to demonstrate willingness to do anything illegal, specifically with respect to drugs and the use of his gun (T2440-41). xxxxxxxxxx's good character also was described by: Officer Edward Hanner, his field trainer and partner for 18 months (T2474-75, 2479, 2647-48); Officer Thomas Stewart, a fellow foot-beat officer in 5D (T2658-59); Officer Troy Ray, who trained xxxxxxxxxx in a scout car (T2667-69); Ms. Tracie Quander, a family and personal friend (T2677-78); and James Belt, the building supervisor at xxxxxxxxxx's high school, who had known him since he was a student (T2685-88).

SUMMARY OF ARGUMENT

ARGUMENT

I. THE GOVERNMENT FAILED TO PRESENT LEGALLY SUFFICIENT PROOF, IN SUPPORT OF THE CHARGE OF AIDING AND ABETTING ATTEMPTED POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE, THAT xxxxxxxxxx'S MERE FOLLOWING OF THE PURPORTED DRUG COURIER IN FACT HELPED HIM OR AGENT OLIVIER.

II. THE JUDGE ERRED IN IMPOSING AN INCREASE OF TWO OFFENSE LEVELS FOR OBSTRUCTION OF JUSTICE BECAUSE xxxxxxxxxx DENIED AT TRIAL THAT HE KNEW, BEFORE AGENT OLIVIER TOLD HIM SO, THAT THE PROSPECTIVE "SECURITY WORK" INVOLVED DRUG RUNNING.



Standard of Review

The Court reviews a sentencing judge's compliance with the legal requirements of the Sentencing Guidelines de novo. See United States v. xxxxxxxxxx, 997 F.2d 1551 (D.C. Cir. 1993). Factual findings are reviewed for clear error. United States v. Chaikin, 960 F.2d 171 (D.C. Cir. 1992).

The Judge Did Not Consider xxxxxxxxxx's Testimony in the Light Most Favorable to Him.

Application Note 1 to the Commentary on U.S.S.G. 3C1.1, which requires a two-level increase for "willfully" obstructing justice, admonishes, "In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant." In a decision published well before the sentencing here, this Court stated that the Sentencing Commission apparently meant in this Commentary to hold judges to an evidentiary standard higher than a preponderance of the evidence, and that the appropriate standard is proof by "clear and convincing" evidence. United States v. Montague, 40 F.3d 1251, 1254-56 (D.C. Cir. 1994).

The process of weighing evidence under the clear-and-convincing standard, as described in Montague, is very different from that under the preponderance-of-the-evidence standard, which simply involves comparing the heights of "piles" of evidence that are arguably on the defendant's side and arguably on the Government's side. Id. at 1255. To reach a proper conclusion that evidence is clear and convincing, a judge must consider whether he or she is "uncertain" as to each item of evidence, and if so, count it in the defendant's favor. Id. In other words, "it is crucial that the judge be clear as to his or her findings and give the benefit of the doubt to the defendant when the judge has no firm conviction." Id. at 1256 (emphasis added). And, of course, a judge cannot reasonably reach a "firm conviction" about all relevant evidence without consciously going through this process.

The government requested obstruction-of-justice increases for both Washington and xxxxxxxxxx. (8) The judge acknowledged preliminarily that he had to consider the statements of both defendants in the light most favorable to them and find that they were false and material under the clear-and-convincing-evidence standard (SH207). However, he did not employ the painstaking methodology required by Montague in finding that xxxxxxxxxx obstructed justice when he testified that before he met with Olivier on October 4, "he did not know this was a drug operation" (SH214).

The testimony by xxxxxxxxxx that the judge specifically cited (SH212) in support of his finding consisted of xxxxxxxxxx's denials, on cross-examination, that Harmon had ever told him before he met Olivier that Olivier was a "drug dealer" (T2266-68) and that when he talked by telephone with Brown on September 7 and referred to a "run," he used that term "out of the blue," only meaning the unauthorized job following a businessman that Hackney had described, which he did not want Bailey to reveal because it could result in a dereliction report (T2273-74). The judge did not even give lip service to considering this testimony in the light most favorable to xxxxxxxxxx. He simply found "no question that it was false" in light of xxxxxxxxxx's recorded conversation with Brown, which he said "obviously suggests that he knew the conspiracy involved drugs" (T212-13; emphasis).

The judge's choice of the word "suggests" reveals that he did not properly find the evidence of falsity "clear and convincing." xxxxxxxxxx's use of the word "run"--defined most aptly in Webster's II New Riverside Dictionary (1988 ed.) as "a quick trip or visit" or "a regular or scheduled route"--was quite ambiguous as to what he knew of the job. Beyond that, the judge said,

He complained about Bailey's flashing of money. He said that Corey had filled him in. He talked about his dealings on Chesapeake Street. He threatened to kill Reid [sic] (9) if he'd have to. He referred to hit people.

(SH213). But none of these statements was necessarily inconsistent with xxxxxxxxxx's claim that he was merely talking tough, as the transcript (Government's Exhibit 71T) shows Brown was doing.

The judge accordingly resorted to a bootstrapping approach, deducing from xxxxxxxxxx's extravagantly tough "language and demeanor" with Olivier on October 4, when he was told about the cocaine, that he had known before that the job involved drugs (SH213). In finding "no other rational explanation," the judge completely failed to consider how unlikely it would be that an officer in that situation--facing a confessed major drug dealer with no one to protect him--would act very differently if he were surprised by the nature of the job.

Instead, the judge looked back to the September 7 conversation and declared that it was "ludicrous" for xxxxxxxxxx to claim he talked about killing Bailey "to protect the security of his off-the-books part-time security work" (SH214). In so doing, the judge also ignored xxxxxxxxxx's testimony that he did not really want to hurt Bailey but genuinely had disliked him ever since he had abused xxxxxxxxxx's hospitality by driving across his family's lawn during their July 4th cookout (T2391). It is unfortunate but true that in our society such rude acts may prompt talk of killing, and this incident could well have given rise to the emotion that colored xxxxxxxxxx's comments about Bailey. Here, as in Montague, a remand for resentencing under the proper standard is required.

III. THE JUDGE ERRED IN REFUSING TO GRANT A DECREASE OF TWO OFFENSE LEVELS FOR THE MINOR ROLE IN THE OFFENSE PLAYED BY xxxxxxxxxx, WHO WAS THE LAST OFFICER RECRUITED, WHO BROUGHT IN NO ONE ELSE, AND WHO DID NOT ATTEND THE MEETINGS ON SEPTEMBER 16 AND NOVEMBER 16, 1993.

 

Considering Harmon's and xxxxxxxxxx's requests for offense level reductions under U.S.S.G. 3B1.2 for minimal or minor roles in the offense, the judge held that both men were not leaders, but they were not minimal. They participated like the other defendants did, except for a couple of leaders. They were active participants, whose participation, as I said, level was consistent with the others. Nine out of twelve, I think, took $2000 bribes.

For that reason, also, they cannot be considered minor participants. A defendant is a minor participant where the evidence shows the defendant's culpability is, quote, relatively minor compared to that of the other participants, end quote. United States v. Caballero, 936 F.2d 1292, a '91 D.C. Circuit case.

Here among all of these nine defendants, it's apparent to me they're somewhat equally culpable. Others were leaders. They were not the leaders, but still they were comparable to all the others as full and active participants.

Mr. Harmon actively recruited Mr. xxxxxxxxxx. Mr. xxxxxxxxxx indicated he would commit violence on anyone and actually were [sic] heavily involved. (10) So it does not appeal that either is entitled to a reduction because of a mitigating role in the offense.

(SH 204). (Argue T the last recruit, didn't go 11/16, didn't recruit anyone, puffing claim not found incredible? Caballero said courier role not minor per se, but these jobs were designed to be more minor or minimal than couriers--"hands off" drugs, didn't carry, just followed, never had to deal with or confront anyone.)

1. xxxxxxxxxx had previously worked in security, construction, reading water meters, and package delivery (T2202).

2. Some time before, xxxxxxxxxx had applied to the MPD for permission to do part-time security work, but had never received a response (T2223).

3. During cross-examination about the September 7 telephone conversation with Brown, xxxxxxxxxx explained that he asked, "When we supposed to be, uh, making the run?", because Hackney had told him that they would be following the businessman to the beltway (T2273-74). xxxxxxxxxx also acknowledged that he expressed the desire that Ronald Bailey, who had been displaying money and who Brown told him had been "cut off" from the group, keep his mouth shut, because the work was unauthorized by the MPD (T2274, 2276-79). And xxxxxxxxxx explained that his references to possible violence against Bailey and to his own drug activity were made falsely, just to pass the time in his adopted "tough" role (T2279-82). He conceded, however, that he actually disliked Bailey previously because he had driven across his family's lawn during a cookout he had recently given (T2391).

4. He again played his assumed role as a "tough man" for Olivier on December 14 by raising the subject of his likely contact with the hit man (T2377, 2408)

5. On cross-examination, xxxxxxxxxx testified that he could not recall if he actually had to work at the time (T2275).

6. He learned later of the other group that included Harmon (T2287).

7. xxxxxxxxxx said he was lying to Olivier in the taped October 4 conversation (Government's Exhibit 28) when he indicated his own prior involvement with cocaine and when he told Olivier he would approach his own brother, a police office, about possible involvement (T2284-86). And he said that despite his representations to Olivier, he would not have taken any cocaine from him (Tr. 2287-89).

8. The Probation Department had not recommended an adjustment in xxxxxxxxxx's offense level on this ground.

9. Apparently, the judge meant Bailey here (see SH214).

10. Later, the judge acknowledged that Mr. xxxxxxxxxx, as he claimed, may have been "puffing to get this drug running job" (Tr.SH 213).