CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to Rule 11 of the General Rules of this court, appellant, xxxxxxx A. xxxxxxx, hereby states as follows:

A. Parties and Amici: The parties below were the defendant-appellant, xxxxxxx A. xxxxxxx, the codefendant, xxxxxxx A. xxxxxxx, and the plaintiff-appellee, the United States of America. Defendant's appeal has been consolidated with the appeal of xxxxxxx xxxxxxx, No. 91-3057, by order of this court dated March 6, 1991. There are no amici.

B.Rulings Under Review: In this appeal defendant challenges the sufficiency of the evidence to support the jury's verdict. The defendant also contests three rulings of the district court, the Honorable William B. Bryant, in this appeal. The first is the district court's denial of defendant's motion for a judgment of acquittal. The second is the district court's denial of defendant's motion for severance. The third is the sentence imposed on February 22, 1991. There is no official citation to any of these rulings. The oral order denying the motion for judgment of acquittal and severance appears in the appendix at page 48; the sentencing pronouncement appears at page 78 of the appendix.

C.Related Cases: This case has not been before this court or any other court previously, nor is counsel aware of any related cases, other than the consolidated case.

ISSUES PRESENTED

There are three issues presented for review:

1. Whether there was sufficient evidence to support defendant's convictions for aiding and abetting, where defendant's actions all took place after the underlying crime was completed.

2. Whether the district court erred in refusing to sever defendant's trial from that of his codefendant, where there was an extreme disparity in the evidence, and defendant was prejudiced by the joint trial.

3. Whether the district court erred in not making any findings with regard to the sentencing and in not giving defendant a downward adjustment in the offense level for his mitigating role in the offense.

STATUTES AND REGULATIONS

The pertinent statutes and regulations appear in the addendum to this brief.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 91-3058

UNITED STATES OF AMERICAAppellee,

v.

xxxxxxx A. xxxxxxxAppellant,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed.R.App.P. 4(b), this court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1)&(2).

STATEMENT OF THE CASE

The defendant-appellant, xxxxxxx A. xxxxxxx, was indicted on August 28, 1990, along with his brother, xxxxxxx xxxxxxx, in a four- count indictment (APP 1). Both defendants were charged in all of the counts, and all the counts specifically included an aiding and abetting charge, 18 U.S.C. § 2. Count One charged assault with a deadly or dangerous weapon of a federal officer engaged in the performance of duty, 18 U.S.C. § 111(b). Count Two charged assault with intent to commit murder within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 114(a). Count Three charged maiming within the special maritime and territorial jurisdiction, 18 U.S.C. § 114. Count Four charged attempted murder of an officer or employee of the United States, 18 U.S.C. § 1114. All the offenses were alleged to have occurred on August 12, 1990, and the alleged victim of all the offenses was United States Park Police Officer James xxxxxxx.

The defendants were tried jointly in a jury trial which began on November 26, 1990. The jury found defendant not guilty of the second count, assault with intent to commit murder, and convicted him of the other three counts. The district court subsequently sentenced defendant to a term of imprisonment of 87 months, a supervised released term of three years, and a special assessment of $150.

FACTS

A. Introduction

The charges arose out of an admittedly brutal attack on Officer xxxxxxx late on the night of August 12, 1990, in Rock Creek Park in the Northwest section of the District. Officer xxxxxxx was severely injured and lost the sight in his left eye as a result of the attack. Defendant's theory at trial was that his brother xxxxxxx was the one who attacked xxxxxxx, and that defendant had no involvement whatsoever in the attack. Defendant's contention throughout the trial was that if he was guilty of anything, it was of being an accessory after the fact.

B. The Events Before the Assault

The defendant lived at 1401 Tuckerman Street in Washington, while xxxxxxx lived at 1415 Tuckerman (11/28/90 : 90). Defendant worked for three to five years for Thomas Weldon, who did demolition and rehabilitation work (11/30/90 : 46-48). xxxxxxx was the head maintenance worker in the apartment building in which he lived, which has 60 units (12/3/90 : 30).

On Sunday, August 12, 1990, from 7:00 a.m. to 5:30 p.m., Mr. Weldon was supervising drywall finishing work at Mayfair McLean, a town house development in Fairfax County, Virginia (11/30/90 : 46). Defendant worked that day, as did Pedro Compose, who worked occasionally (11/30/90 : 53). Because all the other expected workers did not show up, Weldon asked defendant if he knew anyone who wanted to work (11/30/90 : 48-49). Defendant called xxxxxxx, who came in his Isuzu Trooper four wheel drive vehicle to the job, accompanied by a young woman, who also worked that day (11/30/90 : 49). That was the first day xxxxxxx had ever worked for Weldon (11/30/90 : 48). They all worked doing sanding (11/30/90 : 47).

At one point defendant's car had to be moved from where it was parked in a fire lane (11/30/90 : 50). The car would not start and had to be pulled out of the way with a chain (11/30/90 : 51). Weldon left the job site at 5:30 p.m. after paying everyone (11/30/90 : 54). When Weldon left everyone else was still there, and he figured they had about another hour of work to do (11/30/90 : 54).

The woman who accompanied xxxxxxx that day was Olinda Martinez, who was the only person other than Officer xxxxxxx and the defendants present when the assault itself occurred. She was the only witness who testified as to the events of the attack itself, although Officer xxxxxxx also testified at the trial about what occurred immediately before the attack.

Ms. Martinez met xxxxxxx about a year before the trial and had lived with him for seven to eight months in apartment J2 at 1415 Tuckerman (11/30/90 : 129). She had known defendant almost as long as she had known xxxxxxx (11/20/90 : 129).

On Sunday, August 12, 1990, she and xxxxxxx were in the apartment when defendant called and asked for help at the job site (11/30/90 : 130-131). She went with xxxxxxx; they left the apartment about 8:30 a.m., got to the job around 10:00 a.m., and worked until about 7:00 p.m. (11/30/90 : 131). At the job site defendant and xxxxxxx were with her the entire time (11/30/90 : 132).

After finishing work that day they first dropped off a coworker, a man named Pedro (11/30/90 : 132). Pedro had gone with defendant in his car, while Ms. Martinez went with xxxxxxx in his car (11/30/90 : 132). She and xxxxxxx were going home, but on the way defendant and xxxxxxx bought a case of beer (11/30/90 : 133, 168). Ms. Martinez and xxxxxxx then stopped in Rock Creek Park on the way home, and defendant met them there about fifteen minutes later (11/30/90 : 133, 168).

Defendant and xxxxxxx got out of their cars and began drinking (11/30/90 : 134). Ms. Martinez did not drink any beer, as she never drinks (11/30/90 : 134). She waited in xxxxxxx's car while he and defendant sat outside and drank all the beer (11/30/90 : 169).

The Park Police have a Rock Creek substation at Beach Drive and Military Road, near the scene of the incident (11/27/90 : 95). Only two officers were working out of that station on the night shift on Sunday, August 12, 1990, from 10:00 p.m. to 6:00 a.m. (11/27/90 : 96-97). Officer xxxxxxx was working that night with his supervisor, Officer Charles Stuby (11/27/90 : 95).

The officers received a call from the mayor's command post for help in dealing with a washout on Klingle Road (11/27/90 : 98). Stuby told xxxxxxx to try to find some barricades while Stuby went to the Klingle Road site (11/27/90 : 102). xxxxxxx was unable to locate any barriers in the park, and was then cleared from that assignment (11/30 /90 : 64). He was driving a Chevy Caprice police cruiser and was in uniform with a short-sleeve shirt, no tie, and a badge (11/30//90 : 65). Officer xxxxxxx drove by a parking area known as Grove 13, and drove into the area when he saw a car with people around it (11/30/90 : 66).

C.The Incident

While Officer xxxxxxx testified about the events immediately preceding the attack, Ms. Martinez was the only witness who testified about the assault itself. xxxxxxx testified that he pulled into the parking lot and parked his cruiser with the headlights facing the car and people he had seen (11/27/90 : 68). He first saw two males sitting on the curb to the rear of the driver's side of the parked car (11/30/90 : 68). xxxxxxx saw alcoholic beverage containers in the men's hands, which was illegal (11/30/90 : 69). He had the men stand up and the one closest to xxxxxxx appeared intoxicated (11/30/90 : 85). He performed a horizontal gaze test and determined that the man could not drive a car (11/30/90 : 70).

Both men produced identification cards at xxxxxxx's request, one a District of Columbia driver's license, and one a non-operator's license from another state (11/30/90 : 72, 86). xxxxxxx than called the dispatcher to tell him of the location (11/30/90 : 71). xxxxxxx decided at that point to check xxxxxxx's car for weapons (11/30/90 : 71). He opened the driver's door of the car and saw Ms. Martinez sitting in the front on the passenger's side (11/30/90 : 73, 95, 97). The keys were not in the car, so xxxxxxx asked Martinez for them, but she said she did not have them (11/30/90 : 73). xxxxxxx intended to lock the car and bring the keys to the station until someone was fit to drive it (11/30/90 : 73-74). xxxxxxx turned to ask for the keys from the person to whom he had given the test and that is the last thing xxxxxxx remembered about that night (11/30/90 : 74). The next thing he remembered was waking up in the hospital (11/30/90 : 75).

xxxxxxx recognized with certainty that xxxxxxx was the male with whom he had spoken and to whom he had given the sobriety test, and he recognized Martinez as the woman in the car (11/30/90 : 80). xxxxxxx thought he recognized defendant, who seemed to fit in his memory (11/30/90 : 79, 81).

Ms. Martinez, who was sitting in xxxxxxx's car at the time, saw xxxxxxx drive up in his cruiser, wearing his uniform (11/30/90 : 135-136). She told a slightly different version of the subsequent events than xxxxxxx. She testified that xxxxxxx got out of his car and asked defendant and xxxxxxx for identification, which they gave to xxxxxxx (11/30/90 : 136). Martinez stated that xxxxxxx shined his flashlight on her from the driver's side, but he did not open the door (11/30/90 : 171). xxxxxxx then asked xxxxxxx for the keys to his car and xxxxxxx went to his car to get them (11/30/90 : 136). When xxxxxxx opened the door to his car he told her, "I will not give him the keys", and told her not to give the keys to xxxxxxx (11/30/90 : 136, 172).

According to Martinez, xxxxxxx then grabbed a stick, that was about two feet long, from under the seat and then he hit xxxxxxx with it (11/30/90 : 136). Martinez stayed in the car and screamed at xxxxxxx not to hit xxxxxxx, but xxxxxxx ignored her (11/30/90 : 138; APP 5). She did not know how many times xxxxxxx hit xxxxxxx because she screamed and covered her eyes and could only hear the blows (11/30/90 : 138, 175; APP 5).

When xxxxxxx hit xxxxxxx, defendant was 32 feet away (11/30/90 : 174; APP 13). She never saw defendant hit xxxxxxx (11/30/90 : 138; APP 5). Martinez uncovered her eyes, raised her head and looked over (11/30/90 : 176; APP 15). At that point the assault was over and xxxxxxx was lying on the ground (11/30/90 : 139; APP 6) As xxxxxxx put the stick back in the car, she saw defendant come over and bend over near xxxxxxx, but did not know what defendant was doing (11/30/90 : 141; APP 8). She had not heard any argument between xxxxxxx and xxxxxxx, nor did she go over to xxxxxxx after he was hit (11/30/90 : 181, 185).

Defendant then said to xxxxxxx, "let's go" (11/30/90 : 141; APP 8). Defendant asked xxxxxxx to push defendant's car, which was parked away from xxxxxxx's car, to get it started (11/30/90 : 142; APP 9). Defendant drove away in his car and Martinez and xxxxxxx drove away in his car.

D.The Aftermath

Officer xxxxxxx somehow put out a call for help over his car radio. Park Police Officer Lance Ludwick was the first person to reach xxxxxxx in Grove 13, about 11:37 p.m. (11/27/90 : 141). Ludwick immediately pulled up to the cruiser, which was the only car there (11/27/90 : 143). Ludwick could not recognize xxxxxxx, who was sitting in his cruiser, because he was so covered with blood (11/27/90 : 144). xxxxxxx told Ludwick it was a red four by four Toyota with three people, two hispanic males and one female (11/27/90 : 145). Ludwick yelled this information to Stuby, who arrived just after Ludwick, and Stuby broadcast a lookout for the car (11/27/90 : 110, 116, 146). Ludwick comforted xxxxxxx for about four minutes until an ambulance arrived (11/27/90 : 150). A helicopter arrived a few minutes later and took xxxxxxx to Washington Hospital Center (11/27/90 : 150).

The paramedic who arrived at the scene testified that Officer xxxxxxx stopped breathing twice at the scene and once in the helicopter, and each time a blood clot had to be removed from his throat or he would have died (11/27/90 : 190-91, 196, 198). xxxxxxx had a cut above his left eyebrow which went from the middle of his forehead to the back of his head and exposed his skull (11/27/90 : 190). It looked like wood fragments in his eye (11/27/90 : 190).

Officer xxxxxxx spent eleven days in the hospital (11/28/90 : 12-13). He suffered skull, jaw, and multiple facial fractures and underwent eye surgery, ear, nose, and throat surgery, and neurosurgery (11/29/90 : 90-93). xxxxxxx lost the sight in his left eye, and because the optic nerve was damaged there is no chance he will regain vision in the eye (11/30/90 : 194-95).

Park Police Officer Renee Abt was at the hospital on August 15, when xxxxxxx first regained consciousness (11/30/90 : 39). xxxxxxx said that an Hispanic male with a mustache had hit xxxxxxx in the head (11/30/90 :41). xxxxxxx specifically said "he" hit me in the head, not "they" (11/30/90 : 45).

E.The Investigation at the Scene

The most important pieces of evidence found at the scene, lying at the curb, were defendant's Virginia identification card and xxxxxxx's District driver's license (11/28/90 : 25-26). The right end of the light bar on top of the cruiser had been broken, and part of it was lying on the cement (1/27/90 : 178). xxxxxxx's dented badge, flashlight, keys and key keeper were scattered around the area (11/28/90 : 31, 67). Just before he was hit, xxxxxxx had the badge on his shirt, the flashlight in his hand, and the keys and key keeper attached to his belt (11/30/90 : 77). Also found at the scene were a tape measure and ten Budweiser beer bottles, as well as a paper bag with a plastic bag inside containing two cardboard Budweiser six-pack holders (11/28/90 : 59, 65). No weapon was ever found (11/28/90 : 43).

Fingerprints taken from the beer bottles and bags were submitted to the FBI for analysis (1/28/90 : 63). Two of xxxxxxx's fingerprints were on the shopping bag and one on one of the beer bottles (12/3/90 : 12). Defendant's fingerprints were not found on the bag or bottles (12/3/90 : 12).

The Park Police subsequently obtained search warrants to both the residences and cars of xxxxxxx and defendant (11/28/90 : 92).

F.The Defendants' Actions

As the police were investigating, defendant and xxxxxxx and Martinez went from Grove 13 to Tuckerman Street (11/30/90 : 142; APP 9). Martinez asked xxxxxxx for the keys to their apartment and she went inside right away (11/30/90 : 142; APP 9). Before she went into the apartment xxxxxxx told her that she had not seen anything and that she should not say anything (11/30/90 : 144; APP 11). Defendant also told her in the garage before she went into the apartment that she should not say anything (11/30/90 : 145; APP 12). Defendant and xxxxxxx stayed outside for a little while, and then xxxxxxx came into the apartment (11/30/90 : 143; APP 10). Defendant did not come into the apartment (11/30/90 : 145; APP 12).

When xxxxxxx came into the apartment he changed his shirt, but not the blue jeans he had worn to work (11/30/90 : 144-145). xxxxxxx told her that he was leaving, but did not say where he was going, and that she should stay in the apartment (11/30/90 : 146) She left the apartment later to stay with her brother and went back to the apartment the next Saturday only to get her clothes (11/30/90 : 146, 185). The only time she had talked to xxxxxxx after the incident was when he called her shortly before trial to ask her to change a little bit of testimony and say she had been drinking (11/30/90 : 156).

Defendant and xxxxxxx then went to the house of their half sister, Martha xxxxxxx, in Hyattsville, Maryland (11/29/90 : 16, 17). They arrived unexpectedly between 10:00 and 11:00 p.m., both of them drunk (11/29/90 : 69). xxxxxxx came to the door and Ms. xxxxxxx's husband, Luis Jimenez, went outside to talk with xxxxxxx and defendant (11/29/90 : 70). xxxxxxx wanted to leave his Isuzu behind their house (11/29/90 : 70). In order to drive the Isuzu behind the house, Mrs. xxxxxxx's son, Carlos xxxxxxx, had to move his car out of the driveway (11/29/90 : 47, 70). After Carlos moved his car, xxxxxxx drove his Isuzu behind the house (11/29/90 : 71). After xxxxxxx left his car, he and defendant drove away in defendant's car (11/29/90 : 71).

xxxxxxx returned to his half-sister's house the next morning, Monday, August 13, between 9:00 and 10:00 a.m., and stayed at the house all day (11/29/90 : 20). That night xxxxxxx asked Carlos to take xxxxxxx's car somewhere and leave it (11/29/90 : 48). Carlos and a friend took xxxxxxx's car to a park a few miles away and left it (11/29/90 : 99). Before doing so they took the roof rack off the top and took the stereo out (11/29/90 : 50). xxxxxxx gave them some belongings from the car (11/29/90 : 50). The belongings were put in a little closet at Martha xxxxxxx's house (11/29/90 : 22). xxxxxxx also gave Martha some jewelry (11/29/90 : 21). Carlos's friend took the license plates off xxxxxxx's car and xxxxxxx put them in the trash (11/29/90 : 51, 75).

Also on Monday night xxxxxxx asked Carlos to call the Greyhound bus station to check on busses to Houston (11/29/90 : 51). xxxxxxx said he was going back to El Salvador (11/29/90 : 52). The bus station in Silver Spring was closed that night (11/29/90 : 52). xxxxxxx stayed that night at Martha xxxxxxx's house and left about 5:00 a.m. Tuesday morning, August 14 (11/29/90 : 52).

G.The Arrests

Park Police officers went to defendant's apartment building shortly after noon the day after the assault (11/28/90 : 97). Two officers waited in the hall, and after about twenty minutes defendant came out of his apartment (11/28/90 : 98). Defendant took a few steps down the hall and looked up to see the officers, who were in uniform (11/28/90 : 99, 112). One officer told defendant to stop and put up his hands because the officers wanted to talk to defendant (11/28/90 : 99). Defendant backed up toward the door and opened the door (11/28/90 : 100). The officers, who had kept telling defendant to stop, then drew their guns and told him to stop again (11/28/90 : 100). Defendant went into the apartment and shut the door (11/28/90 : 100). The police did not follow (11/28/90 : 100).

One officer had gone to the back of the building. He saw defendant starting to climb out a first floor corner window (11/28/90 : 117). The officer told defendant to stop, defendant looked at the officer and went back inside (11/28/90 : 117).

Some Spanish-speaking officers arrived shortly thereafter (11/28/90 : 113). The officers who had talked to defendant in the hall did not know he could not speak English (11/28/90 : 114). The Spanish speaking officers talked to defendant through the door, trying to talk him into coming out of the apartment (11/28/90 : 113). Eventually defendant opened the door and he was taken out of the apartment and arrested (11/28/90 : 111).

On Wednesday, August 15, xxxxxxx was arrested by the FBI in Mobile, Alabama on a bus (11/29/90 : 118-120). A ticket agent at the Silver Spring Greyhound station had remembered that xxxxxxx had been there about 9:00 a.m. on Tuesday (11/29/90 : 101). When the agents in Mobile asked xxxxxxx his identity he told them he was xxxxxxx Torres (11/29/90 : 120). The agents found a resident alien card with xxxxxxx's true name in his possession, as well as a bus ticket from Silver Spring to Houston in his baggage (11/29/90 : 122).

xxxxxxx was interviewed by a Spanish speaking FBI agent the next day, after he waived his Miranda rights (11/29/90 : 131-33). xxxxxxx admitted he owned a red 1989 Isuzu trooper which he had recently abandoned in Maryland, although he could not remember exactly where, because he was going back to El Salvador (11/29/90 : 140). xxxxxxx stated that a woman had told him someone was looking for him and he was leaving to hide from whomever it was, although he did not know who it was (11/29/90 : 140). xxxxxxx thought it involved something that happened one night, which he could not remember (11/29/90 : 140). xxxxxxx said he had been drunk on August 12 and could not remember what he did with his driver's license (11/29/90 : 141). xxxxxxx first claimed he shaved his mustache because it did not look good, then he said he did it because someone was looking for him (11/29/90 : 140).

xxxxxxx recalled going to work with defendant on August 12, buying a lot of beer after work, and stopping in Rock Creek Park on the way home (11/29/90 : 142-43). xxxxxxx stated that at one point a car came to the parking area in the park where he and defendant were drinking beer, stopped, and then left (11/29/90 : 143). When asked what happened next xxxxxxx terminated the interview, stating that his recollection of what happened that night was vague because he had been drinking so much (11/29/90 : 143).

H.The Physical Evidence

The government introduced several items of physical evidence, and testimony about them. A pair of blue jeans was found on a couch in xxxxxxx's apartment (11/30/90 : 11). They did not belong to Ms. Martinez (11/30/90 : 190). Blood grouping tests were done at the FBI lab, on a red stain on the bottom right leg (11/30/90 : 118). The tests first determine if a stain is blood, and if it is then it is tested to see if it is human blood, and if it is then certain characteristics of the blood are determined to try to show whether it could have come from a certain person (11/30/90 : 113). Blood samples from defendant, xxxxxxx, and Officer xxxxxxx were submitted to the lab (11/30/90 : 106-107). The blood on the jeans found in xxxxxxx's apartment absolutely could not have come from xxxxxxx or defendant, and could have come from xxxxxxx, because it had the characteristics of his blood, which are only present in about one percent of the population (1/30/90 : 115).

A shirt was recovered from defendant's car, which had minute brown-colored stains on it (11/30/90 : 21). The stain was determined to be human blood, but no further conclusion could be made (11/30/90 : 117). A piece of electrical conduit pipe was also found in defendant's car, but there was no blood at all on it, (11/30/90 : 30-31, 33). The government never contended this pipe had any connection to the offenses.

xxxxxxx's car, with no license plates, was found in Buck Lodge Community Park, an isolated wooded area, about two miles from Martha xxxxxxx's house (11/30/90 : 6). The items from xxxxxxx's car were found in a tool shed at her house (11/29/90 : 98). Tests performed on a swab used to take a blood sample from xxxxxxx's car likewise showed human blood, but inconclusive grouping (11/30/90 : 18, 177).

The Maxitt brand tape measure found at the scene had human blood stains on it, but the grouping test on it was also inconclusive (11/30/90 : 116). xxxxxxx had a tape measure on his hip while working for Weldon, which was unusual for a day laborer (11/30/90 : 51). Defendant carried a Stanley tape measure while working for Weldon, not a Maxitt, which is not a standard brand ordinarily used by most construction people (11/30/90 : 52).

The defendant and xxxxxxx stipulated that Grove 13 was within the special maritime and territorial jurisdiction of the United States (12/3/90 : 13).

I.The Defense

Neither xxxxxxx nor defendant testified. xxxxxxx presented two character witnesses, the manager of the apartment building in which xxxxxxx lived and worked, and one of the tenants (12/3/90 : 29, 35). xxxxxxx's stepdaughter also testified, primarily about his drinking habits (12/3/90 : 38). xxxxxxx also presented the testimony of a psychologist, Lanning E. Moldauer, who testified about xxxxxxx's drinking and that xxxxxxx suffered from diffuse brain damage (12/3/90 : 48, 60-61). xxxxxxx also called a friend of his, who also knew Ms. Martinez (12/3/90 : 92). None of xxxxxxx's witnesses testified about defendant or his activities.

Defendant called only one witness, a Park Police detective who testified that Ms. Martinez was an illegal alien and had falsified information about that on her employment application to get a job (12/3/90 : 100). That witness did not testify to anything about the defendant.

J.Trial Issues

Defendant had filed a pretrial motion for severance of his case from that of xxxxxxx, primarily based upon the disparity of the evidence in the case (10/25/90 : 13). Defendant pointed out that Ms. Martinez's statements showed that defendant was an accessory after the fact, but not an aider and abettor (10/25/90 : 15). Defendant argued the motion again just before the beginning of the trial (11/21/90 : 190). Defendant repeated his argument about being an accessory after the fact (11/21/90 : 204). The court denied the severance motion (11/21/90 : 210).

At the conclusion of the government's case, defendant made a motion for a judgment of acquittal. Defendant again argued that the evidence showed only that he was an accessory after the fact, not an aider and abettor (12/3/90 : 21-22). The district court denied this motion (12/3/90 : 27).

At the close of all the evidence, defendant renewed all his motions (12/4/90 : 2). In its closing argument the government told the jury that it was xxxxxxx who struck xxxxxxx with the club (12/4/90 : 26). The government argued that defendant was guilty as an aider and abettor because he assisted xxxxxxx at the scene and later in the cover up and concealment of the assault (12/4/90 : 26).

In its instruction to the jury, the district court included an instruction on aiding and abetting (12/4/90 : 90-91).

Now, the theory of course, as I've indicated to you in the government's case, is that the defendants aided and abetted one another in the commission of these offenses. And in connection with that aspect of the case, the court instructs you that you may find the defendant guilty of a crime charged in the indictment without finding that he personally committed each of the acts constituting the offense, or that he was personally present at the commission of the offense. Any person who advises, incites or connives or counsels or induces or procures an offense, aids or abets the principal defendant is therefore punishable as the principal. That is to say he's as guilty of the offense as if he had personally committed each of the acts constituting the offense. A person aids and abets another in the commission of a crime if he knowingly associates himself in some way with the criminal venture with the intent to commit the crime, participates in it as something he wishes to bring about, and seeks by some action of his to make it succeed. Some conduct by the defendant of an affirmative character in furtherance of a common criminal design or purpose is necessary. The mere physical presence by the defendant at the time and at the place of the commission of an offense is not, by itself, sufficient to establish his guilt.

At one point the jury sent out a note asking for, among other things, defendant's shirt and all the pictures in evidence (12/5/90 : 2). The jury subsequently convicted defendant of Counts One, Three, and Four, and convicted xxxxxxx of all four counts (12/5/90 : 6-7).

K.Post-Trial Motions

Defendant filed a renewed motion for a judgment of acquittal after the verdict as well as a motion for a new trial on the ground that his severance motion should have been granted. This was at least the fourth time defendant had raised the arguments (2/21/91 : 22; APP 38). The district court discussed both these motions at some length, and expressed its concerns about the issues involved. Defendant essentially repeated his argument that he was guilty, if at all, of being an accessory after the fact, not an aider and abettor. The government argued that defendant's presence, his flight afterwards, his statement to Martinez in the garage, the attempted destruction of evidence at the scene, the blood on the shirt taken from defendant's car, and defendant being bent over xxxxxxx, all justified the verdict (2/22/91 : 16-17; APP 32-33). The government also argued that defendant should have tried to stop the attack and "leave to get help, or at least leave" (2/22/91 : 18; APP 34). The government also felt that if Martinez had testified that defendant told xxxxxxx to stop, a judgment of acquittal would have been appropriate (2/22/91 : 25; APP 41).

The district court was troubled about the sufficiency of the evidence argument and expressed its concern (2/22/91 : 23; APP 39). The district court believed that "by allowing [defendant's convictions] to stand we have taken the doctrine of aiding and abetting to its outermost limits, to its outer boundaries" (2/22/92 : 26; APP 42). The district court then addressed the severance issue, noting that "in this case the disparity in evidence is extreme" (2/22/91 : 27; APP 43). The court then denied both of defendant's motions, stating:

I have grave concerns about both your motions, and I think they are indicated in the colloquy between counsel. I recognize, I believe as I told [the prosecutor], that these facts, carried to their very outer limits of aiding and abetting, expand the concept I think further than I have seen it in any case.

(2/22/92 : 32; APP 48).

The district court further stated that, "I don't have a great deal of confidence in the correctness of my decisions, but I deny your motion" (2/22/92 : 32; APP 48). The district court's last words to the defendant were that defendant's case was "troubling . . . and I hope it's resolved fairly someplace else" (2/22/91 : 63; APP 79).

L.Sentencing

The probation officer who prepared the presentence report determined that all three counts of which defendant was convicted should be grouped together under U.S.S.G. § 3D1.2, because they all involved substantially the same offense behavior (PR 8). The guideline for Count Four, attempted murder, 18 U.S.C. § 1114, was the count with the highest offense level. The report stated the base offense level was 22, under U.S.S.G. § 2A2.1 (PR 8). The report recommended a four level increase pursuant to U.S.S.G. § 2A2.1(b)(1)(A) because the victim sustained permanent or life threatening bodily injury (PR 8). The report also recommended a three level increase under U.S.S.G. § 3A1.2(a), because the victim was a law enforcement officer included in 18 U.S.C. § 1114 (PR 8). This resulted in a total offense level of 29. The report recommended no downward adjustment for acceptance of responsibility.

Because the defendant had no prior record, his criminal history category was I (PR 9). The guideline sentencing range for a level 29 offense and a criminal history category of I was determined to be 87 to 108 months (PR 9).

Defendant raised several objections to the presentence report. Defendant also argued that the offense level should be reduced under U.S.S.G. § 3B1.2 because defendant was a minimal participant in the offense (2/22/91 : 59-61; APP 75-77).

The district court made no findings of any kind with respect to the offense level computation, with respect to the objections raised by defendant, nor about defendant's request for a minimal role adjustment. The court simply sentenced defendant to 87 months imprisonment, a $150.00 special assessment, and three years of supervised release (2/22/91 : 62; APP 78). The 87 month sentence was the bottom of the guideline range recommended in the presentence report.

ARGUMENT

SUMMARY OF ARGUMENT

Defendant contends that the evidence was insufficient to sustain his conviction as an aider and abettor. The evidence conclusively established that defendant had no advance knowledge of the offense and did not participate in it in any way. At most, defendant may have been guilty of being an accessary after the fact, as all defendant's actions occurred after the offense was complete. In addition, defendant claims the extreme disparity in the evidence between defendant and xxxxxxx resulted in defendant suffering prejudice when the district court refused to sever the trials. Finally, defendant argues that a remand for resentencing is required because the district court failed to state any findings at the sentencing, and failed to give defendant a downward adjustment for his mitigating role in the offense.

I.THE EVIDENCE WAS INSUFFICIENT TO CONVICT

DEFENDANT AS AN AIDER AND ABETTOR

A.Standard of Review

Defendant recognizes the heavy burden he faces in challenging a conviction on sufficiency of the evidence grounds.

In assessing the substantiality of this evidence, we begin by recognizing that "[t]he standard for overturning a guilty verdict on the grounds of insufficiency of evidence is . . . a demanding one." Accordingly, we will not reverse a conviction in such a case unless, reviewing the evidence in the light most favorable to the Government, a reasonable jury "could not have found guilt beyond a reasonable doubt."

United States v. Chun-Yin, No. 90-3185, slip op. at 5 (D.C. Cir. Mar. 13, 1992) (citations omitted).

B.The Merits

This court has recently set forth the elements the government must prove to convict a defendant as an aider and abettor under 18 U.S.C. § 2:

Aiding and abetting an offense consists of four elements: "(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense."

United States v. Harris, No. 89-3206, slip op. at 29-30 (D.C. Cir. Feb. 19, 1992) (citations omitted). "[A]iders and abettors must possess the same criminal intent as the principals." United States v. North, 910 F.2d 843, 881 n.11 (D.C. Cir. 1990), cert. denied, 111 S.Ct. 2235 (1991).

Defendant's contention in the present case is very simple, and is the same argument he made to the district court. While there may have been sufficient evidence to convict him as an accessory after the fact, there is no evidence at all to support an aiding and abetting conviction, because the government failed to prove three of the four elements required by the Harris case. There is no evidence defendant had any intent to facilitate the commission of the attack; no evidence of guilty knowledge on his part; and no evidence that he assisted or participated in the offense. In fact, the eyewitness testimony of Olinda Martinez showed that the government failed to prove all three of these elements.

There was no plan to assault Officer xxxxxxx that night. Defendant, xxxxxxx, and Ms. Martinez stopped in Rock Creek Park on their way home. It was happenstance that xxxxxxx pulled in to see what was taking place. There was no evidence defendant and xxxxxxx talked about the attack at all. xxxxxxx did tell Martinez that xxxxxxx would not get the keys, but xxxxxxx said nothing to defendant, and there was no evidence defendant overheard xxxxxxx tell Martinez about the keys. Indeed, while Ms. Martinez heard xxxxxxx ask defendant and xxxxxxx for identification, she did not testify to hearing defendant and xxxxxxx converse at all while xxxxxxx was there.

xxxxxxx's action was a bizarre, unprovoked act. There is no evidence defendant had any idea xxxxxxx was about to do such a thing. Martinez's testimony was clear that defendant was 32 feet away when xxxxxxx struck xxxxxxx. There was no testimony that defendant offered any encouragement or support. Indeed, all the witnesses who saw xxxxxxx at the time, including xxxxxxx, testified that xxxxxxx was intoxicated. There was also testimony about xxxxxxx suffering from brain damage. Defendant could not have anticipated xxxxxxx's irrational and unplanned act.

Martinez testified that defendant did nothing with respect to xxxxxxx, except bend over him, after xxxxxxx had completed the attack and while xxxxxxx was putting the club back in the car. All defendant did was bend over and look at xxxxxxx. That there were tiny unidentified blood stains on a shirt found in defendant's car adds nothing to the case. It may have been xxxxxxx's shirt that he had taken off after leaving Martha xxxxxxx's house. The stains may have been old. Even if it were defendant's shirt, Officer xxxxxxx was suffering from an arterial bleed, and it would not be surprising that when defendant bent over xxxxxxx, some blood may have gotten on defendant's shirt.

All of defendant's actions occurred after xxxxxxx had committed the crime. "A person cannot be found guilty of aiding and abetting a crime that already has been committed." United States v. Shulman, 624 F.2d 384, 387 (2nd Cir. 1980). An example of this concept in a situation analogous to the present case is found in Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). In Roberts, one defendant knew in advance that a codefendant was going to pass a counterfeit $20.00 bill in a store. Id. at 1220. The defendant was with the codefendant, who was detained by store employees to await the police. Id. at 1218. The codefendant gave the defendant nine other counterfeit bills, which the defendant took and burned. Id. The court reversed the defendant's conviction for aiding and abetting the passing of the counterfeit bill, because the defendant's "act could not have aided and abetted [the codefendant] in the passing of the counterfeit currency because that was already an accomplished act." Id. at 1221. The court noted that the defendant "may well . . . have been charged and convicted as an accessory after the fact on the basis of the destruction of the money as helping [the codefendant] escape detection or punishment, but the charge was not so framed in the indictment." Id. The reasoning of Roberts is equally applicable to the present case.

There is no indication defendant had any advance knowledge or warning about xxxxxxx's actions. The factors which the government pointed out to the district court were all efforts to help xxxxxxx avoid capture. They in no way, however, indicate that defendant aided and abetted the attack itself. Leaving the scene with xxxxxxx, and telling Ms. Martinez to say nothing, and trying to avoid the police all indicate an effort by defendant to help xxxxxxx or for defendant to avoid being wrongfully blamed himself, especially because defendant was an alien and did not speak English. It is noteworthy that, unlike xxxxxxx, defendant returned to his apartment and was making no attempt to leave the area. In addition, xxxxxxx is the one who called Martinez asking her to change her testimony.

This court has recognized that flight after a crime has been committed is of dubious probative value because "it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses." Bailey v. United States, 416 F.2d 1110, 1115 (D.C. Cir. 1969) (footnote omitted) (quoting Alberty v. United States, 162 U.S. 499, 511 (1896)). In Bailey, the defendant was present at the scene where an unidentified person committed a robbery. The defendant had been seen with the robber at the scene several times prior to the robbery, and was about ten feet away when the robbery occurred. The defendant ran away with the robber when a witness yelled at them. 416 F.2d at 1112. The court reversed the aiding and abetting conviction noting that "innocent people caught in a web of circumstances frequently become terror-stricken." Id. at 1115-16 (quoting Cooper v. United States, 218 F.2d 39, 41 (D.C. Cir. 1954)).

In United States v. Barlow, 470 F.2d 1245 (D.C. Cir. 1972) this court again addressed the difference between being an aider and abettor and an accessory after the fact. The defendant in Barlow was convicted of theft of government property, under an aiding and abetting theory. The court first explained that "where the defendant merely provided assistance to the perpetrator of the actual crime after its completion - and nothing more - a conviction for aiding and abetting the principal regarding that crime cannot stand." Id. at 1249 (emphasis in original). The defendant in Barlow drove off with stolen goods moments after a codefendant had stolen them. The court upheld the conviction because asportation was a part of the crime, which was actually continuing when the defendant drove away with the stolen goods. Thus, the crime was still "progressing and had not been terminated or finished" when the defendant took action. Id. at 1251. In an important passage the court explained why the defendant was not solely an accessory after the fact:

The gist of being an accessory after the fact lies essentially in obstructing justice by rendering assistance to hinder or prevent the arrest of the offender after he has committed the crime. Evidence of this offense is most frequently found in acts which harbor, protect and conceal the individual criminal such as by driving him away after he commits a murder. The very definition of the crime also requires that the felony not be in progress when the assistance is rendered because then he who renders assistance would aid in the commission of the offense and be guilty as a principal.

Id. at 1252-53 (emphasis added). In the present case, defendant's acts fall exactly within this definition of an accessory after the fact.

In United States v. Grey Bear, 828 F.2d 1286 (8th Cir. 1987), cert. denied, 110 S.Ct. 846 (1990) the Eighth Circuit discussed at length the aiding and abetting convictions of several defendants. The court set forth the general principles required for an aiding and abetting conviction:

It follows, and has often been stressed by this court, that mere presence at the scene of the crime is insufficient proof on which to base an aiding and abetting conviction. Mere association with the principal and even knowledge that a crime is about to be committed are also insufficient to support an aiding and abetting conviction without proof of culpable purpose. United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971). As we noted in Kelton "[t]he necessity for proving facts other than presence has been explained as 'an essential safeguard against the ever present danger of assuming the complicity of all in attendance whenever group activity is involved.'" Aiding and abetting, therefore, requires conduct of an affirmative nature; mere negative acquiescence in a crime is insufficient.

828 F.2d at 1292-93 (citations omitted) (emphasis in original). In Grey Bear the victim was chased, beaten by a group of defendants and left lying on a road, where he was then run over and killed by a car driven by one of the eleven defendants. Id. at 1288. In addition to the driver of the car, the court affirmed the murder conviction of only one of the other defendants. There was testimony that that defendant gave a signal to the driver of the car indicating that the defendant wanted the driver to hit the victim with the car. Id. at 1295. The court reversed the convictions of all nine other defendants, finding that the only evidence they intended the victim to die was that they beat him and left him on the highway. Id. at 1296. The court found that the "jury's tendency to find guilt by association" was the only plausible reason for the verdicts. Id. at 1297.

The court in Grey Bear also reversed one defendant's conviction for assault resulting in serious bodily injury. Although that defendant was present at the scene the court determined there was no evidence he had actually encouraged the assault. Id. at 1295. The court stated that he could not be convicted "merely because he was at the scene of the assault or because he was associated with other defendants." Id.

Defendant in the present case contends that he fits squarely within the rule of Grey Bear. The most that was shown was his mere presence and "negative acquiescence" in the assault. The government admitted as much in its closing argument when it told the jury that defendant assisted xxxxxxx at the scene, but never described how. (12/4/90 : 26). In the rebuttal portion of its closing the government merely said that defendant was with xxxxxxx "every step of the way" (12/4/90 : 65). That is not enough to make defendant guilty, however, where the attack was clearly a sudden, unanticipated event, and he took no part in it.

Had defendant done something to assist or encourage xxxxxxx, this would be a much different case. A good example of such a situation occurred in United States v. Ferreboeuf, 632 F.2d 832 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981). In Ferreboeuf, the defendant was convicted of being an accessory after the fact to murder and of aiding and abetting an assault on a federal officer. The defendant and her husband were in a customs building at the Canadian border. One customs inspector was shot and killed inside the building. Id. at 833. While defendant held the door open her husband shot at another inspector who was outside. Id. During an ensuing chase, defendant acted as the lookout. Id. The court found conviction on both charges was proper. Proof of acting as the lookout supported the accessory after the fact of the murder charge. Id. at 836. Proof that defendant held the door open to assist in the assault satisfied the aiding and abetting charge. Id. It is interesting that the defendant was not charged with aiding and abetting the murder, apparently because there was no evidence whether she assisted that crime in any way during its commission.

The facts in the present case are even more compelling. Not only is there no evidence that defendant did anything to aid or abet the assault, but also Martinez's testimony affirmatively showed that defendant did nothing and that he was 32 feet away when the attack occurred.

Another example of what kind of affirmative act is required in a similar situation is found in State v. Martinez, 441 N.W. 2d 690 (Wis. 1989). In Martinez the defendant was convicted of the Wisconsin equivalent of aiding and abetting. The underlying crime was an attempted murder of which his brother was convicted of being the principal. The defendant got in a fight with a bouncer outside a bar. The defendant threatened the bouncer's life several times during the fight. Id. at 693. The defendant then reached inside his coat, as if for a gun. Id. at 691. While defendant did not have a gun, this motion distracted the crowd which had gathered, and then defendant's brother who was standing nearby, pulled out a gun and shot the bouncer. Id. The court found that the defendant's threats could have been interpreted as an intention of readiness and willingness to assist in the subsequent offense, and that the motion of reaching in the coat could have been either a signal or a deliberate feint. Id. at 693. The Martinez case shows the type of conduct that can support an aiding and abetting conviction, none of which occurred in the present case.

The government relied principally upon three cases in its argument to the district court on this issue. Not one of the cases is analogous to the present case. In United States v. Bryant, 671 F.2d 450 (11th Cir. 1982), three defendants were convicted of tampering with a vessel. The defendants were the captain and two crew members of a sailboat, which carried a cargo of 3,000 pounds of marijuana. Id. at 452. Within 30 minutes of contact by a Coast Guard cutter, the defendants were in a dinghy fleeing the sailboat, which had gasoline poured on deck, the fuel lines and a salt water line cut, and a valve open so the boat would flood. Id. The sails were set and the helm tied down so the boat would keep its course. Id. In addition, just as the Coast Guard was preparing to board the sailboat, a flare was fired at it. Id. The court upheld the convictions of all three men, finding with respect to the two crew members that the extent of the damage in such a short time, the fact that neither requested assistance, and their presence and flight "indicated a concert of action among the three men," which, though "largely circumstantial," was sufficient to affirm the conviction. Id. at.

The obvious difference between Bryant and the present case is that in the present case there was an eyewitness, Martinez, who testified that defendant had nothing to do with the assault. Nothing about xxxxxxx's brief, although brutal, attack showed any concert of action.

In United States v. Garrett, 720 F.2d 705 (D.C. Cir. 1983), cert. denied, 465 U.S. 1037 (1984), this court affirmed the conviction for aiding and abetting the interstate transportation of a minor for prohibited sexual conduct. The defendant in Garrett had numerous conversations with an undercover agent and acted as a go-between in procuring the transportation of a young boy for sexual purposes. The court affirmed the conviction because the defendant was a "heavily involved go-between." Id. at 714. No such evidence exists in the present case.

Finally, in United States v. Poston, 902 F.2d 90 (D.C. Cir. 1990) the defendant was convicted of aiding and abetting the possession of PCP with intent to distribute. The court first stated that possession with intent to distribute was a continuing offense. Id. at 94. Thus, the defendant's actions in giving the seller of drugs a ride to the transaction and acting as a lookout during the transaction were sufficient to affirm the conviction, even though the seller had already obtained possession of the drugs before getting the ride. The court stated that, "Lookouts have long been recognized to be liable under 18 U.S.C. § 2 for aiding and abetting possession offenses." Id. at 96. In addition, the defendant knew his passenger was going to engage in a drug transaction. Once again, there was no such evidence in the present case. Furthermore, the present case is not a continuing offense like a possession case.

The district court in the present case was deeply troubled by the sufficiency of the evidence against defendant. The district court thought it took aiding and abetting to its outermost limits. Defendant contends that this case goes beyond the outermost limits. The district court justifiably expressed little confidence in the propriety of its decision, and expressed its hope that the case would be fairly resolved someplace else. Defendant urges this court to fairly resolve his case by reversing his conviction for insufficient evidence.

II.

A.

Obviously, if the court finds that the evidence was insufficient to sustain defendant's convictions, as discussed above, then the court need not decide the other issues discussed in this brief. Should the court find the evidence sufficient, then defendant contends he should have received a trial separate from xxxxxxx, because of the disparity in the evidence. The district court's decision to deny a severance motion is reviewed for abuse of discretion. United States v. Tarantino, 846 F.2d 1384, 1398-99 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988).

B.

Defendant acknowledges that it was proper to charge xxxxxxx and him in the same indictment under Fed. R. Crim. P. 8. Defendant argues that under Fed. R. Crim. P. 14, he was prejudiced by joinder with xxxxxxx for trial, and that the district court should have severed the trials.

The defendant made this motion before trial and renewed it several times, including in a post-trial motion for a new trial. While the district court denied the motion again after the conclusion of the trial, it expressed its concern about the motion and stated that the disparity in the evidence between the defendants was extreme.

When there is an extreme disparity in the evidence between codefendants, severance may be required. United States v. Halliman, 923 F.2d 873, 884 (D.C. Cir. 1991); United States v. Tarantino, 846 F.2d at 1398. This is because the "prejudicial spillover may have deprived a defendant of a fair trial." Id. The critical determination is whether the jury could "reasonably compartmentalize the evidence introduced against each individual defendant." United States v. Halliman, 923 F.2d at 884 (quoting United States v. Hernandez, 780 F.2d 113, 119 (D.C. Cir. 1986)).

In the present case, it is, of course, defendant's position that the disparity in the evidence was so extreme that there is not enough to support defendant's conviction. In fact, it is likely that defendant's conviction was obtained just as a result of being on trial with xxxxxxx. The danger of prejudice was especially great in this case because defendant and xxxxxxx are brothers, and it is likely the jury viewed them as acting in concert by that fact alone. The government played upon this in its closing by arguing to the jury that defendant was guilty because he was with xxxxxxx every step of the way, even though there was no evidence to support this assertion.

It would have required little extra time to hold two separate trials. "There were only two defendants, the evidence was uncomplicated and it would neither have been too time consuming nor impracticable to have two separate trials." United States v. Gonzalez, 804 F.2d 691, 696 (11th Cir. 1986). At a separate trial of defendant much of the evidence could have been introduced by stipulation, thus focusing solely on defendant's role and state of mind.

The disparity in this case was reflected in the testimony about the crucial fact that xxxxxxx talked mostly to xxxxxxx. Only xxxxxxx struck xxxxxxx. It was xxxxxxx who hid and abandoned his car. xxxxxxx fled on a bus headed for Houston, while defendant went back to his apartment. xxxxxxx's statement was introduced into evidence. xxxxxxx's blood was identified only on the pants found in xxxxxxx's apartment. xxxxxxx talked to Martinez to ask her to change her testimony.

For all these reasons, defendant respectfully requests that even if the court does not reverse his conviction for insufficient evidence, it at least reverse his conviction and afford him a new trial free from the taint of being tried with xxxxxxx.

III.

The presentence report computed the offense level by first grouping all three counts of conviction under U.S.S.G. § 3D1.2, and then using the offense level of the count with the highest offense level pursuant to U.S.S.G. § 3D1.3. The count with the highest offense level was Count Four, the attempted murder count, 18 U.S.C. § 1114. The offense level for that count was determined by reference to U.S.S.G. § 2A2.1. The presentence report then calculated the offense level under § 2A2.1 as follows:

Base Offense Level (§ 2A2.1)22

Specific Offense Characteristic

(§ 2A2.1(b)(1)(A)): Victim sustaining

permanent or life threatening bodily

injury +4

Victim Related Adjustment (§ 3A1.2(a)):

Law enforcement officer victim+3

Obstruction of Justice Adjustment

(§ 3C1.1): 0

Acceptance of Responsibility Adjustment

(§ 3E1.1): Not warranted 0

Total Offense Level29

The district court made no findings at all with respect to the applicable guideline or any adjustments. The district court simply sentenced defendant to the bottom of the guideline range determined in the presentence report, and failed to address defendant's claim that he should have been given a downward adjustment for his role in the offense. The presentence report did not discuss a downward adjustment for defendant's role in the offense. The only claim defendant is raising on appeal is the failure to award a downward adjustment for his role in the offense. Defendant does not dispute the other calculations in the report. A remand appears necessary, however, to require the district court to make findings as to exactly what offense level and adjustments were applied or not applied. Lam Kwong-Wah, 924 F.2d at 307.

A defendant may receive a downward adjustment for his mitigating role in the offense pursuant to U.S.S.G. § 3B1.2, which provides:

Based on the defendant's role in the offense, decrease the offense level as follows:

(a)If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b)If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

The commentary to this guideline states that the four-level downward adjustment "is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. § 3B1.2, comment. n. 1. At the time of the offense in the present case, the role in the offense section of the guidelines stated that, "This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense." U.S.S.G. Ch. 3, Pt. B, intro. comment. In United States v. Williams, 891 F.2d 921, 925-26 (D.C. Cir. 1989), the court held that this introductory commentary meant that in deciding whether to award a role in the offense adjustment the court could only look at defendant's role with respect to the offense of conviction, not in terms of relevant conduct included with U.S.S.G. § 1B1.3.

The introductory commentary was subsequently amended effective November 1, 1990, specifically to include relevant conduct under § 1B1.3 in determination of a defendant's role in the offense adjustment. This court later determined, in United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir. 1991), that the amendment to the commentary "nullified" Williams. The court held that all relevant conduct, not just the elements of the crime of conviction, could be used in determining a role in the offense adjustment. Id. at 1298-99 & n.7. The court then noted that the amendment could be applied to offenses occurring before its effective date, because it was only a clarifying amendment. Id. at 1299 n. 8. The court did this without discussing any ex post facto problems, and without discussing the problems of effectively overruling the decision of another panel.

At the time of the offense in this case, Williams was the controlling precedent and only the conduct surrounding the offense of conviction could be used in determining whether a downward adjustment for role in the offense was warranted. Defendant believes that under the circumstances of this case it does not matter whether the Williams or Caballero test is used, because under either formulation defendant was a minimal participant. If the court, however, is of the opinion that the result under Caballero would be harsher than under Williams, then defendant asserts that to use Caballero instead of Williams violates the ex post facto clause. See United States v. Green, 952 F.2d 414 (D.C. Cir. 1991).

United States v. Williams, 891 F.2d at 923; Caballero, 936 F.2d at 1300 n.9.

The district court's decision regarding a downward adjustment under § 3B1.2 is given due deference, Williams, 891 F.2d at 926, and is largely committed to the discretion of the trial judge. Caballero, 936 F.2d at 1299. Defendant's position is, once again, that there was no evidence to convict him of the offenses. Even if the court finds there was sufficient evidence, however, it is clear that defendant's role was minimal compared to that of xxxxxxx. In determining the adjustment for a mitigating role the district court must assess the defendant's culpability "compared to that of the other participant." Id.

Defendant was plainly far less culpable than xxxxxxx. "There is a thin line between a minor and a minimal participant, and at times, it is difficult to determine just where to draw it." United States v. Vega-Encarnacion, 914 F.2d 20, (1st Cir. 1990), cert. denied, 111 S.Ct. 1626 (1991). Without repeating all the facts above, defendant contends he is entitled to a four-point downward adjustment as a minimal participant under § 3B1.2(a). Interestingly, had defendant been charged and convicted of being an accessory after the fact, which is the most of which he contended he was guilty, he would have received a six-point downward adjustment from the offense level, pursuant to U.S.S.G. § 2X3.1. Thus, the four-point reduction is clearly warranted if the court upholds the conviction itself. Defendant respectfully requests that if the court affirms the conviction it remand the case for findings by the district court with respect to the appropriate guideline range and adjustments, including a mitigating role adjustment.