[COMPLEX CASE]

ORAL ARGUMENT HAS BEEN SCHEDULED FOR FEBRUARY 1, xxxxxx

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________________________

NO.

______________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH E. xxxx,

Defendant-Appellant.

_______________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________

FINAL BRIEF FOR APPELLANT

________________________________________________

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

NEIL H. JAFFEE

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

I. PARTIES AND AMICI:

A. Names of Parties Below and on Appeal

This appeal arises from a criminal trial in which eleven defendants were convicted of conspiring to distribute and possess with the intent to distribute large quantities of cocaine and cocaine base and related offenses occurring over approximately a four-year period. The appellant, Keith E. xxxx, was one of the defendants in the trial below. All other parties appearing before the district court and in this court are listed in the Joint Brief for Appellants filed simultaneously with this individual brief. There are no amici.

II. RULINGS UNDER REVIEW:

This is an appeal from a judgment of the district court (Honorable Charles R. Richey), dated September 17, 1990, adjudging appellant guilty after a trial on drug conspiracy and related charges. In this appeal, appellant seeks review of the district court's ruling made on November 27, 1989, sustaining a defense witness's blanket assertion of his Fifth Amendment privilege. That ruling has not been reported. In addition, appellant seeks review of the sentence, consisting of a term of imprisonment of 320 months, followed by a term of supervised release of 6 years, and a special assessment of $300.00, imposed on him by the district court (Richey, J.) on September 6, 1990.

III. RELATED CASES:

The appeals of all eleven defendants in the trial below are pending before this court, which has ordered that these appeals be consolidated. Moreover, the consolidated appeals of nine defendants who were jointly indicted with the appellants in this case but tried separately are also pending before this court. The respective parties and docket numbers in these appeals are listed in the Joint Brief for Appellants.

TABLE OF CONTENTS

TABLE OF AUTHORITIES v

ISSUES PRESENTED 1

STATUTES AND REGULATIONS 2

JURISDICTION 2

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT 4

ARGUMENT 7

I. THE COURT ERRED, IN VIOLATION OF MR. xxxx'S CONSTITUTIONAL RIGHT TO PROCURE FAVORABLE TESTIMONY, IN SUSTAINING A DEFENSE WITNESS'S BLANKET ASSERTION OF HIS FIFTH AMENDMENT PRIVILEGE WHERE SUCH WITNESS HAD BEEN ACQUITTED OF CHARGES ARISING FROM THE SAME INCIDENT ABOUT WHICH HE INTENDED TO TESTIFY, THE TESTIMONY WOULD HAVE EXCULPATED MR. xxxx OF SEVERAL OF THE CHARGES IN THE INDICTMENT, AND THE GOVERNMENT WOULD HAVE HAD AN ADEQUATE OPPORTUNITY TO CROSS-EXAMINE THE WITNESS. 7

A. Standard of Review 9

B. After Conducting a Hearing the Trial Court Sustained Pinkney's Blanket Claim of Privilege 10

C. Because Mr. xxxx Had A Material Need to Obtain Pinkney's Non-Privileged Testimony and the Government Would Have Had An Adequate Opportunity to Cross-Examine Him, the Trial Court Should Have Compelled His Testimony Concerning the Events That Occurred On February 18, 1988 14

D. Conclusion 20

II. THE TRIAL COURT ERRED IN ATTRIBUTING TO MR. xxxx FOR SENTENCING PURPOSES THE TOTAL QUANTITY OF DRUGS INVOLVED IN THE CONSPIRACY WITHOUT MAKING INDIVIDUALIZED FACTUAL FINDINGS CONCERNING THE AMOUNT REASONABLY FORESEEABLE TO HIM WITHIN THE SCOPE OF HIS AGREEMENT WITH COCONSPIRATORS AND IN INCREASING HIS BASE OFFENSE LEVEL FOR POSSESSION OF FIREARMS UNDER U.S.S.G. § 2D1.1(b)(1) WHERE THERE WAS NO EVIDENCE THAT HE ACTUALLY OR CONSTRUCTIVELY POSSESSED ANY OF THE FIREARMS OR THAT HE REASONABLY FORESAW THAT HIS COCONSPIRATORS WOULD UTILIZE FIREARMS IN FURTHERANCE OF THE CONSPIRACY. 21

A. Standard of Review 23

B. Relevant Conduct Drug Quantity 23

C. Relevant Conduct Firearms 29

III. ADOPTION OF CODEFENDANTS' ARGUMENTS 31

CONCLUSION 31

CERTIFICATE OF SERVICE 32

ADDENDUM A-1

TABLE OF AUTHORITIES

CASES

*Chambers v. Mississippi,

410 U.S. 284 (1973) . . . . . . . . . . . . . . . . . . . 7

In re Liddy,

506 F.2d 1293 (D.C. Cir. 1974) 8

Ullmann v. United States,

350 U.S. 422 (1956) 8

United States v. Ball,

163 U.S. 662 (1896) . . . . . . . . . . . . . . . . . . . 8

United States v. Boney,

977 F.2d 624 (D.C. Cir. 1992) 29

United States v. Carreon,

11 F.3d 1225 (5th Cir. 1994) 26

United States v. Cochran,

14 F.3d 1128 (6th Cir. 1994) 30

United States v. Conkins,

9 F.3d 1377 (9th Cir. 1993) 26, 28

United States v. DePriest,

6 F.3d 1201 (7th Cir. 1993) 23, 28, 29

United States v. Edwards,

945 F.2d 1387 (7th Cir. 1991),

cert. denied, 112 S.Ct. 1590 (1992) 27

United States v. Garcia,

909 F.2d 1346 (9th Cir. 1990) 23

United States v. Ismond,

993 F.2d 1498 (11th Cir. 1993) 26, 28

United States v. Jenkins,

4 F.3d 1348 (6th Cir. 1993),

cert. denied, 114 S.Ct. 1317 (1994) 26, 28

*United States v. Lam Kwong-Wah,

966 F.2d 682 (D.C. Cir.),

cert. denied, 113 S.Ct. 287 (1992) 26

United States v. Melchor Moreno,

536 F.2d 1042 (5th Cir. 1976) 20

*United States v. Pardo,

636 F.2d 535 (D.C. Cir. 1980) passim

*United States v. Perkins,

963 F.2d 1523 (D.C. Cir. 1992) 26, 28

United States v. Petty,

992 F.2d 887 (9th Cir. 1993) 26, 28

*United States v. Reese,

561 F.2d 894 (D.C. Cir. 1977) 14

United States v. Robinson,

530 F.2d 1076 (D.C. Cir. 1976) 19

United States v. Simpson,

992 F.2d 1224 (D.C. Cir.),

cert. denied, 114 S. Ct. 286 (1993) 9

*United States v. Thornton,

733 F.2d 121 (D.C. Cir. 1984) passim

United States v. Young,

997 F.2d 1204 (7th Cir. 1993) 28

*Washington v. Texas,

388 U.S. 14 (1967) . . . . . . . . . . . . . . . . . . . 7

STATUTES AND GUIDELINES

18 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . 3, 24

21 U.S.C. § 841(a)(1), (b)(1)(A)(ii) (II) and

(b)(1)(A)(iii) 2, 3

21 U.S.C. § 845b 3

21 U.S.C. § 846 2

*U.S.S.G. § 1B1.3 passim

*U.S.S.G. § 2D1.1(b)(1) 6, 29

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________________

NO.

____________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH E. xxxx,

Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

BRIEF FOR APPELLANT

______________________________________________

ISSUES PRESENTED

I. Whether the court erred, in violation of Mr. xxxx's constitutional right to procure favorable testimony, in sustaining a defense witness's blanket assertion of his Fifth Amendment privilege where such witness had been acquitted of charges arising from the same incident about which he intended to testify, the testimony would have exculpated Mr. xxxx of several of the charges in the indictment, and the government would have had an adequate opportunity to cross-examine the witness.

II. Whether the trial court erred in attributing to Mr. xxxx for sentencing purposes the total quantity of drugs involved in the conspiracy without making individualized factual findings concerning the amount reasonably foreseeable to him within the scope of his agreement with co-conspirators and in increasing his base offense level for possession of firearms under U.S.S.G. § 2D1.1(b) where there was no evidence that he actually or constructively possessed any of the firearms or that he reasonably foresaw that his co-conspirators would utilize firearms in furtherance of the conspiracy.

STATUTES AND REGULATIONS

Pertinent statutes and Sentencing Guidelines are set forth in the addendum to this brief.

JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.

STATEMENT OF THE CASE ⁽¹⁾

Mr. xxxx was charged in six of the twenty-three counts in the retyped indictment. [A. I 4-24] Count Two charged a conspiracy to distribute and possess with intent to distribute large quantities of cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), 841(b)(1)(A)(iii) and 846. Counts Six and Eight charged Mr. xxxx with distributing quantities of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2. Counts Seven and Ten alleged that Mr. xxxx used minors to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 845b, and Count Nine charged possession with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).

The government presented evidence that in 1987 and 1988, Mr. xxxx participated in the drug conspiracy by receiving at stash houses deliveries of cocaine and cocaine base which he, in turn, would distribute to street sellers and then collect the proceeds from their sales. (10/3/89 Tr. 42-45, 61-62, 72-74; 10/4/89 Tr. 122-123) According to that evidence, Mr. xxxx was involved in distributing packages of cocaine base on February 17 and 18, 1988. (9/20/89 Tr. 46-49, 62-69; 9/21/89 Tr. 117-125) When Mr. xxxx was arrested on February 18, 1988, in the basement of 656 Orleans Place, N.E., Washington, D.C., approximately 73 grams of cocaine base were seized from that location. (9/20/89 Tr. 68-69; 9/21/89 Tr. 73) The prosecution did not present evidence that Mr. xxxx participated in any other activities of the drug conspiracy. For example, there was no evidence that he was involved in the purchasing of the drugs or in their distribution from locations other than the stash houses in which he worked. Moreover, the parties stipulated that Mr. xxxx was incarcerated for several months during the period in which the drug conspiracy was in operation.

On December 6, 1989, the jury returned its verdict finding Mr. xxxx guilty of all charges against him. [A. II. 68-70] After the original sentence Mr. xxxx received on February 16, 1990 was vacated by this court, he was resentenced on September 6, 1990. At that time, the district court sentenced him to 320 months in prison, to be followed by a term of 6 years on supervised release, and a special assessment of $300.00. [A. II. 118-121] Thereafter, on September 10, 1990, a timely notice of appeal was filed on behalf of Mr. xxxx and this appeal ensued. Mr. xxxx is incarcerated pending this appeal.

SUMMARY OF ARGUMENT

This appeal involves both joint and individual points of error, that is, errors by the district court that infected the proceedings against all of the defendants, as well as errors that impacted against individual defendants. The trial court's errors that apply to all defendants are raised in the Joint Brief for Appellants, filed simultaneously with this individual brief on behalf of Mr. xxxx. Thus, the arguments set forth in this brief focus on three rulings by the district court that apply solely to Mr. xxxx -- one ruling involves a trial issue and the other two relate to the calculation of Mr. xxxx's base offense level under the Sentencing Guidelines.

First, the district court erroneously sustained a defense witness's blanket assertion of his Fifth Amendment during the presentation of Mr. xxxx's defense at trial. In this regard, Mr. xxxx sought to elicit from the witness critical testimony that would have exculpated Mr. xxxx, in whole or in part, as to four separate charges against him. Because the witness had been acquitted of charges arising from the events about which Mr. xxxx sought his testimony, the witness did not face any further threat of incrimination on either direct or cross-examination concerning those offenses. Thus, the witness's Fifth Amendment problem was caused by the prosecutor's proposed cross-examination concerning two other incidents in an effort to prove that the witness was biased in favor of Mr. xxxx. In sustaining the witness's blanket privilege, the district court failed to fully consider Mr. xxxx's Sixth Amendment right to procure testimony in his favor. Given the pertinent facts and circumstances, the trial court could have reconciled Mr. xxxx's constitutional right to procure testimony and the government's non-constitutional right to fully cross-examine the witness. Because such a reconciliation was possible here, the court's failure to compel the witness's testimony, which was essential to Mr. xxxx's defense, requires that his convictions on four counts of the indictment be reversed and a new trial granted.

Second, without setting forth reasons in support of its conclusion and without making specific factual findings, the district court attributed to Mr. xxxx the total quantity of drugs involved in the conspiracy in arriving at his base offense level under the Sentencing Guidelines. Although the court found that the total amount of drugs was reasonably foreseeable to Mr. xxxx, it failed to articulate any reasons for this finding. Moreover, the court did not make any findings as to the scope of Mr. xxxx's agreement with coconspirators. Because the evidence presented at trial by the government established that Mr. xxxx participated in distributing only a portion of the drugs involved in the conspiracy, without determining the scope of criminal activity undertaken by him, the district court could not accurately calculate the quantity of drugs for which he could reasonably be held accountable. Thus, Mr. xxxx's sentence should be vacated and the case remanded to the trial court to make individualized findings in determining the quantity of drugs distributed that were within the scope of his agreement and that were reasonably foreseeable by him.

Finally, the district court increased Mr. xxxx's offense level by two points for firearms possession under U.S.S.G. § 2D1.1 (b)(1) on the grounds that he could have reasonably foreseen that his codefendants utilized firearms in furtherance of the drug conspiracy. However, the government did not present any evidence that Mr. xxxx actually or constructively possessed any of the firearms seized in this case or ever discussed firearms with his coconspirators. Thus, because the district court clearly erred in finding that Mr. xxxx could have reasonably foreseen that his coconspirators would utilize firearms, the weapons enhancement portion of his sentence must be vacated and this case remanded for resentencing.

For these reasons, as well as for those set forth in the Joint Brief for Appellants, Mr. xxxx's conviction and sentence cannot stand.

ARGUMENT

I. THE COURT ERRED, IN VIOLATION OF MR. xxxx'S CONSTITUTIONAL RIGHT TO PROCURE FAVORABLE TESTIMONY, IN SUSTAINING A DEFENSE WITNESS'S BLANKET ASSERTION OF HIS FIFTH AMENDMENT PRIVILEGE WHERE SUCH WITNESS HAD BEEN ACQUITTED OF CHARGES ARISING FROM THE SAME INCIDENT ABOUT WHICH HE INTENDED TO TESTIFY, THE TESTIMONY WOULD HAVE EXCULPATED MR. xxxx OF SEVERAL OF THE CHARGES IN THE INDICTMENT, AND THE GOVERNMENT WOULD HAVE HAD AN ADEQUATE OPPORTUNITY TO CROSS-EXAMINE THE WITNESS.

The right of an accused in a criminal case to procure testimony in his favor derives from the compulsory process clause of the Sixth Amendment, which states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." The right to present one's own witnesses in establishing a defense is of fundamental significance. As the Supreme Court stated in Washington v. Texas, 388 U.S. 14, 19 (1967),

[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

As the Court recognized, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

Although the accused's right to compulsory process does not include the right to compel a witness to waive his Fifth Amendment privilege, United States v. Thornton, 733 F.2d 121, 125 (D.C. Cir. 1984) (citations omitted), the privilege has no application beyond its 'protective purpose.' United States v. Pardo, 636 F.2d 535, 542 (D.C. Cir. 1980) (quoting Ullmann v. United States, 350 U.S. 422, 431 (1956) (additional citation omitted)). It is clear that one who has been acquitted of an offense may not thereafter be prosecuted again for the same offense. United States v. Ball, 163 U.S. 662, 670 (1896). Thus, the privilege against self-incrimination no longer applies once a witness is acquitted of the charges about which he is called to testify. Cf. United States v. Pardo, 636 F.2d at 543 (self-incrimination privilege ceases to apply once witness has been convicted of offense with respect to which he fears incrimination); In re Liddy, 506 F.2d 1293, 1299-1300 (D.C. Cir. 1974) (same).

The evidence against Mr. xxxx in this case consisted primarily of the testimony of prosecution witnesses with respect to xxxx's involvement in distributing cocaine base on February 17 and 18, 1988. In his defense case, Mr. xxxx sought to elicit testimony from Patrick Pinkney, a juvenile, who would have contradicted the testimony of the government witnesses in so far as it implicated xxxx in the drug activities on February 18th. Pinkney had already been acquitted in juvenile court of charges arising from the February 18 incident and defense counsel for xxxx emphasized at trial that she would only question Pinkney concerning the events of that date. However, the government insisted that if Pinkney took the stand, it would have the right to cross-examine him as to events that occurred on two other dates in order to establish that Pinkney had been working for xxxx and therefore was biased in his favor and against the government. Based upon the prosecution's representations, Pinkney asserted his privilege against self-incrimination.

Although the trial court held a hearing to determine whether Pinkney properly could refuse to testify, it erroneously focused on Pinkney's privilege without fully considering Mr. xxxx's Sixth Amendment right to procure testimony in his favor. Because Mr. xxxx's right to procure testimony and the government's right to cross-examine Pinkney could have been reconciled in this case, the court should have compelled Pinkney to testify concerning the events that occurred on February 18, 1988. The court's failure to compel Pinkney's testimony, which would have exculpated Mr. xxxx, in whole or in part, as to four counts of the indictment, requires that his convictions on those counts be reversed and a new trial granted.

A. Standard of Review

A decision to sustain a defense witness's blanket refusal to testify and assertion of his Fifth Amendment privilege against self-incrimination lies within the trial judge's discretion as constrained by the defendant's Sixth Amendment right to compulsory process. See United States v. Simpson, 992 F.2d 1224, 1230 (D.C. Cir.), cert. denied, 114 S.Ct. 286 (1993); United States v. Pardo, 636 F.2d at 544-45.

B. After Conducting a Hearing the Trial Court Sustained Pinkney's Blanket Claim of Privilege

The indictment in this case charged, inter alia, that Mr. xxxx conspired with others to distribute and possess with intent to distribute large quantities of cocaine and cocaine base (Count Two). [A. I. 4-22] Mr. xxxx was named in six overt acts in furtherance of the alleged conspiracy (Overt Acts 11, 21-25). [A. I. 13-15] Three of those acts alleged that on February 18, 1988, Mr. xxxx distributed packets of cocaine base from the basement of 656 Orleans Place, N.E., collected money from street sellers in front of that address, and possessed 100 packets of cocaine base there (Overt Acts 19-21). [A. I. 14] In addition to the overt acts in the drug conspiracy charge, the February 18th incident also gave rise to three substantive counts charging Mr. xxxx with distribution of cocaine base, possession with the intent to distribute 50 grams or more of cocaine base, and using a minor to possess with intent to distribute cocaine and cocaine base (Counts 8-10). [A. I. 24]

At the trial, MPD Officer Muzzatti testified that on February 18, 1988, he observed Mr. xxxx, Cornelius McDonald, and Walter Boram selling packets of cocaine in the 600 block of Orleans Place, N.E. (9/20/89 Tr. 62-63) According to Muzzatti, xxxx and McDonald would come out of the basement of 656 Orleans Place to replenish the street sellers on that block and then would return to collect the money from the sellers. (9/20/89 Tr. 64) After an undercover police officer purchased drugs from one of the sellers in that block, Muzzatti gave the arrest signal and the arrest team, armed with a search warrant for 656 Orleans Place, entered the area. (9/20/89 Tr. 66-68) Muzzatti observed xxxx and McDonald run into the basement of that address where they were subsequently arrested. (9/20/89 Tr. 68-69) According to McDonald, who testified as a prosecution witness, he, xxxx, and Patrick Pinkney were in the basement when they were placed under arrest and the police recovered 100 plastic bags of cocaine from a pipe near the back door of the basement. (9/21/89 Tr. 122-34)

To rebut this evidence, Mr. xxxx called Patrick Pinkney as a defense witness. (11/27/89 Tr. 113) According to a proffer by xxxx's counsel in which she referred to previous testimony by Pinkney, Pinkney's anticipated trial testimony would have contradicted the testimony of Cornelius McDonald with regard to xxxx's involvement in the drug trafficking on February 18, 1988. ⁽²⁾ (11/27/89 Tr. 132) Specifically, Pinkney would have testified as to the location of the drugs seized from the basement of 656 Orleans Place in relation to Mr. xxxx's presence there at the time of his arrest. (11/27/89 Tr. 132)

Pinkney, a juvenile, had been acquitted in juvenile court of charges stemming from the February 18th incident. (11/27/89 Tr. 132) Thus, court-appointed counsel for Pinkney agreed that his testimony would not tend to incriminate him provided that it was limited to the events that occurred on February 18. However, the prosecutor informed the court that he intended to cross-examine Pinkney as to his participation in two other incidents -- one before and the other after February 18, 1988 -- in order to establish that Pinkney was a member of the alleged drug conspiracy and therefore was biased in favor of xxxx and against the government. (11/27/89 Tr. 114-16, 118-119) Based upon the prosecutor's representations, Pinkney's counsel advised the court that his client would invoke his Fifth Amendment privilege and refuse to testify at all. (11/27/89 Tr. 117-18)

Based upon the prosecutor's proffer, and without making any particularized inquiries to decide whether the privilege applied to each specific area that the defense and prosecution wished to explore with Pinkney, the trial court sustained Pinkney's blanket assertion of the privilege because "there [was] a likelihood of his being prosecuted . . . ." (11/27/89 Tr. 120) However, after xxxx's counsel insisted that Pinkney either invoke or waive his Fifth Amendment right on the record, the court conducted a hearing outside the presence of the jury in which Pinkney was called as the only witness. (11/27/89 Tr. 120-122) During Pinkney's direct examination at the hearing, he appeared to be somewhat confused as to whether he was willing to waive his privilege against self-incrimination and testify for Mr. xxxx. (11/27/89 Tr. 122-126) However, after further consultation with his attorney, Pinkney advised that he did not wish to waive his Fifth Amendment right. (11/27/89 Tr. 126) At that point in the hearing, the court asked the prosecutor to "put to [Pinkney] the two questions or three questions that you propose to put to him, and we will get the answers[.]" (11/27/89 Tr. 127) Because the prosecutor's cross-examination of Pinkney at the hearing fell far short of the proffer made to the trial court, we set it out in its entirety. (11/27/89 Tr. 129-130)

MR. TAPP: Mr. Pinkney, do you know 642 [Morton Place]?

MR. PINKNEY: I refuse to answer based on my Fifth Amendment right.

MR. TAPP: Have you ever been to 642 Morton?

MR. PINKNEY: I refuse to answer based on my Fifth Amendment rights.

MR. TAPP: Do you know Patrick McDonald?

MR. PINKNEY: I refuse to answer based on my Fifth Amendment rights.

MR. TAPP: Have you been to 656 prior to February 18th?

MR. PINKNEY: I refuse to answer based on my Fifth Amendment right.

MR. TAPP: I don't have any further questions.

* * *

Based upon the government's limited cross-examination, as well as Pinkney's invocation of his privilege against self-incrimination, and without even discussing Mr. xxxx's right to put on a defense, the court sustained Pinkney's blanket claim, inexplicably finding that there was "no narrower basis upon which [he] could provide testimony to the defendant . . . ." (11/27/89 Tr. 130-131) Thus, citing as controlling this Court's decision in United States v. Thornton, 733 F.2d 121 (D.C. Cir. 1984), the trial court excused Pinkney from testifying in this case. (11/27/89 Tr. 131)

C. Because Mr. xxxx Had A Material Need to Obtain Pinkney's Non-Privileged Testimony and the Government Would Have Had An Adequate Opportunity to Cross-Examine Him, the Trial Court Should Have Compelled His Testimony Concerning the Events That Occurred On February 18, 1988

The district court's reliance upon Thornton was misplaced because the issue there was whether the district court properly sustained a defense witness's claim of privilege as to his entire testimony regarding the circumstances of the defendant's arrest. 733 F.2d at 125. Noting that the accused's right to compulsory process does not include the right to compel a witness to waive his privilege against self-incrimination, the Thornton court found that the district court had properly balanced the defendant's Fifth Amendment right and the Sixth Amendment right of the witness. Id. In balancing these interests, 'the trial judge must make an appropriate inquiry into the basis of the privilege claimed by the witness, and may not permit the witness to refuse to testify where a narrower privilege would adequately protect him.' Id. (quoting United States v. Reese, 561 F.2d 894, 900 (D.C. Cir. 1977)). Because the potential defense witness in Thornton was facing charges for possession of drugs and paraphernalia found on his person at the same time as Thornton's arrest, the district court properly concluded "that there [was] a reasonable basis for believing a danger to the witness might exist in answering any relevant question." 733 F.2d at 126 (emphasis in original).

In citing Thornton as support for its ruling in favor of Pinkney's blanket claim of privilege, the trial court failed to recognize the fundamental distinctions between Thornton and this case. First, unlike Pinkney, the defense witness in Thornton would likely have incriminated himself had he testified even on direct examination as to any relevant events. In contrast, since Pinkney had been acquitted in juvenile court on charges arising from the events on February 18, 1988, he faced no further threat of incrimination on either direct or cross-examination concerning those events. Thus, Pinkney's testimony concerning Mr. xxxx's lack of involvement in the drug trafficking on February 18th would not have tended to incriminate him. Instead, his Fifth Amendment problem was caused by the prosecutor's proposed cross-examination concerning two other incidents in an effort to prove that Pinkney was biased in favor of Mr. xxxx.

Second, the witness in Thornton was called by the defense to contradict police officer testimony that the defendant had placed a small package resembling drugs into his right rear pants pocket shortly before he was stopped by the police. Id. at 123-24. However, in order to have provided that testimony, the witness would have had to testify as to the circumstances surrounding his own arrest because he had been arrested at the same time as Thornton. Because any testimony regarding the circumstances of his own arrest could have been within the scope of his Fifth Amendment privilege, the trial judge reasonably concluded that a "narrower privilege" would not have sufficed to protect the witness from self-incrimination. Id. at 125-26. In contrast, because Pinkney could have testified with impunity concerning the events of February 18th, the trial court could have properly concluded that a "narrower privilege" would have sufficed to protect him from self-incrimination while permitting Mr. xxxx to elicit the desired testimony.

Finally, whereas Thornton was an "unusual case" that justified the witness's blanket assertion of privilege, id. at 126, because the danger of self-incrimination arose here only as a result of the prosecutor's proposed cross-examination of Pinkney, this case does not qualify as "unusual" so as to sustain a blanket assertion of privilege. For these reasons, the decision in Thornton does not control the determination of whether Pinkney should have been compelled to testify in this case.

It is clear that because Pinkney only faced a threat of incrimination concerning matters outside the scope of his direct examination, contrary to the district court's analysis, this case does not involve a conflict between his Fifth Amendment right and Mr. xxxx's Sixth Amendment right to procure favorable testimony. Instead, this case involves a direct conflict between Mr. xxxx's Sixth Amendment right to procure exculpatory testimony from Pinkney and the prosecution's non-constitutional right to cross-examine him. See United States v. Pardo, 636 F.2d at 544. Had the district court recognized this crucial distinction, it would have concluded that Pardo and not Thornton is controlling.

In Pardo, six individuals were charged with possession and possession with intent to distribute cocaine. 636 F.2d at 537. In exchange for his guilty plea to charges contained in other indictments, the two drug charges against one of the defendants, Clifford Corbett, were dropped. Id. The evidence against two defendants, Goodwin and Tate, consisted solely of the testimony of an undercover agent with respect to their participation in the alleged drug distribution scheme. Id. at 538-39. Prior to trial, Goodwin and Tate filed motions to secure testimony from Corbett that would contradict the agent's testimony. Because Corbett had already entered into a plea agreement that effectively immunized him from further prosecution on the dismissed drug charges, Goodwin and Tate argued that he could not refuse to testify on Fifth Amendment grounds because his testimony would not tend to incriminate him. Id. at 540. However, the trial court upheld Corbett's blanket refusal to testify based upon his counsel's expressed fear that Corbett's cross-examination "might touch upon matters which would provide 'a link or a clue that may well enable the prosecution to charge him with conspiracy in some case where he had a very small part but, nevertheless, would expose him to a possible prosecution'[  ]." Id. at 541.

Applying an analysis that is equally applicable to this case, the court of appeals concluded in Pardo that the case did not present the typical "painful choice between a defendant's Sixth Amendment right to procure testimony in his favor and a witness's Fifth Amendment right not to incriminate himself[,]" but, instead, "[o]n careful examination," it concluded that the case presented "the less painful conflict between the defendant's Sixth Amendment right to procure testimony and the government's right to cross-examine the witness offering that testimony." Id. at 542 (footnote omitted). The court reasoned that because Corbett's testimony concerning the events alleged in the indictment could not incriminate him, the only danger posed to his privilege lay in cross-examination. Id. at 544. However, since the government would have an unlimited opportunity to cross-examine Corbett as to the acts alleged in the indictment, "where the rights of the defendant and the Government can be reconciled, the defendant's constitutional right to procure testimony in his favor must prevail." Id. at 544-45 (footnote omitted). Thus, the court reversed the district court's ruling and held that because such a reconciliation was possible there, Corbett should have been compelled to testify.

The same factors that compelled the result in Pardo are also present in this case. First, the defense needed Pinkney's testimony to rebut the government's evidence that Mr. xxxx was involved in the drug trafficking on February 18th. Although Officer Muzzatti's testimony concerning Mr. xxxx's participation in the events of February 18th was corroborated by the accomplice testimony of Cornelius McDonald, it is possible that Pinkney's exculpatory testimony would have exonerated Mr. xxxx of all charges relating to that incident.

Second, as in Pardo, the prosecution in this case would have had an adequate opportunity to cross-examine the defense witness. Because Pinkney could have testified with impunity as to the events of February 18th, the government would have had an unlimited opportunity to cross-examine him as to the events on that date. Clearly, the prosecutor would have been permitted to cross-examine Pinkney regarding his "working relationship" with xxxx, McDonald, and others on February 18th. Thus, like Pardo, "[t]his is not a case in which the witness is attempting to testify 'selectively,' i.e. to testify concerning certain events on direct examination, but refuse to testify as to those same events on cross-examination on the grounds of the Fifth Amendment." Id. at 545 (emphasis in original).

Next, it is clear that the prosecution would have had ample opportunity to impeach Pinkney collaterally, as well. Certainly, in its questioning of Pinkney and its argument to the jury, the government could have suggested that he falsely testified in order to exonerate his co-conspirators, especially in light of the fact that he could not have been prosecuted again for the events in question. Moreover, since bias may be proven by extrinsic evidence, United States v. Robinson, 530 F.2d 1076, 1079-81 (D.C. Cir. 1976), the prosecution could have established Pinkney's bias by recalling McDonald on rebuttal to testify that Pinkney had been working for xxxx and the other alleged co-conspirators during the events in question. In this regard, McDonald's testimony would not have been limited to the February 18th incident and, if he had personal knowledge, could have extended to the other dates initially mentioned in the prosecutor's proffer.

Finally, as in Pardo, the government made no showing in this case that there were significant matters which it would have been preempted from exploring on cross-examination because of Pinkney's privilege against self-incrimination. Although the prosecutor alluded to two other incidents allegedly involving Pinkney and other co-conspirators, at the hearing conducted by the trial judge the prosecutor failed to specifically ask Pinkney about his involvement in other drug-related matters. It is significant to note that the prosecutor also failed to ask Pinkney any questions about his participation in the drug activities on February 18th. Moreover, as mentioned, based upon its theory that Pinkney's participation in other crimes was evidence of his bias in favor of Mr. xxxx, the government could have attempted to prove Pinkney's relationship with xxxx by extrinsic evidence if Pinkney had been permitted to assert his privilege as to specific questions on cross-examination. See United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976) (blanket refusal to testify unacceptable where only a portion of testimony was protected from disclosure by Fifth Amendment). Thus, Mr. xxxx could have obtained the testimony he needed from Pinkney without infringing upon the government's interest in cross-examining and impeaching him.

D. Conclusion

For these reasons, the trial court committed reversible error in refusing to compel the testimony of Patrick Pinkney concerning the events of February 18, 1988. It is clear that Pinkney had no Fifth Amendment right as to those events. While he did retain a privilege with respect to matters occurring on other dates, the prosecutor would have had an unlimited opportunity to cross-examine him as to the February 18th incident and could have attempted to prove his bias in favor of Mr. xxxx by extrinsic evidence if necessary. By sustaining Pinkney's blanket privilege, the trial court deprived Mr. xxxx of his constitutional right to present favorable testimony to the jury. Because Mr. xxxx's fundamental Sixth Amendment right was violated, his convictions on those counts as to which Pinkney's testimony would have been exculpatory -- Two, Eight, Nine, and Ten -- must be reversed and a new trial ordered.

II. THE TRIAL COURT ERRED IN ATTRIBUTING TO MR. xxxx FOR SENTENCING PURPOSES THE TOTAL QUANTITY OF DRUGS INVOLVED IN THE CONSPIRACY WITHOUT MAKING INDIVIDUALIZED FACTUAL FINDINGS CONCERNING THE AMOUNT REASONABLY FORESEEABLE TO HIM WITHIN THE SCOPE OF HIS AGREEMENT WITH COCONSPIRATORS AND IN INCREASING HIS BASE OFFENSE LEVEL FOR POSSESSION OF FIREARMS UNDER U.S.S.G. § 2D1.1(b)(1) WHERE THERE WAS NO EVIDENCE THAT HE ACTUALLY OR CONSTRUCTIVELY POSSESSED ANY OF THE FIREARMS OR THAT HE REASONABLY FORESAW THAT HIS COCONSPIRATORS WOULD UTILIZE FIREARMS IN FURTHERANCE OF THE CONSPIRACY.

The government presented evidence at trial that Mr. xxxx was a member of the drug conspiracy charged in Count Two of the indictment. According to that evidence, Mr. xxxx received deliveries of cocaine and cocaine base which he, in turn, would distribute to street sellers and then collect the proceeds from their sales. (10/3/89 Tr. 43-45, 61-62, 72-74; 10/4/89 Tr. 122-123) On several specific occasions, government witnesses observed Mr. xxxx distributing packages of cocaine to street sellers located in the area of Orleans and Morton Places, N.E., Washington, D.C. (9/20/89 Tr. 46-49, 62-69; 9/21/89 Tr. 117-125; 9/22/89 Tr. 159-160, 162) When he was arrested in the basement of 656 Orleans Place, N.E., on February 18, 1988, approximately 73 grams of cocaine base were seized from that location. (9/20/89 Tr. 68-69; 9/21/89 Tr. 73)

On September 6, 1990, the district court resentenced ⁽³⁾

Mr. xxxx on the total quantity of drugs involved in the conspiracy and increased his base offense level by two points under U.S.S.G. § 2D1.1(b)(1) on the basis that firearms possessed by other members of the conspiracy were reasonably foreseeable to him. (9/6/90 Tr. 62-64) Finding that Mr. xxxx's base offense level was 40, the district court sentenced him to imprisonment for a term of 320 months.

Although the district court determined that the total quantity of drugs was reasonably foreseeable to Mr. xxxx, it failed to make any findings as to the scope of the criminal activity he agreed to jointly undertake and did not give sufficient reasons for its finding that, despite Mr. xxxx's participation in only one phase of the drug distribution scheme, the entire amount of drugs involved in the conspiracy could be attributed to him. Therefore, Mr. xxxx's case should be remanded for resentencing to give the district court an opportunity to articulate its reasons in support of its finding of reasonable foreseeability and to determine the scope of criminal activity Mr. xxxx agreed to undertake. Moreover, because there was no evidence from which the district court reasonably could infer that Mr. xxxx knew that his co-conspirators would utilize firearms, the weapons enhancement portion of the sentence imposed upon him cannot stand.

A. Standard of Review

The district court's resolution of the drug quantity foreseeability issue is a factual conclusion that is reviewed for clear error. United States v. DePriest, 6 F.3d 1201, 1213 (7th Cir. 1993). Similarly, the district court's finding that the firearm possession by his co-conspirators was reasonably foreseeable to Mr. xxxx is also reviewed for clear error. United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990).

B. Relevant Conduct Drug Quantity

Mr. xxxx's Presentence Investigation Report ("PSR") found that the drug conspiracy was responsible for distributing over a 150 kilograms of cocaine and held him accountable for the entire quantity, therefore calculating a base offense level of 36. (PSR at 10-11, 19a) ⁽⁴⁾ In support of its base offense level calculation, the PSI found that the large quantity of drugs was reasonably foreseeable to Mr. xxxx because he was involved in the distribution end of the conspiracy and "on one occasion was found to be in possession of over 73 grams of cocaine base . . . ." (PSR at 19a) In its discussion of the offense conduct in this case, the PSR characterized Mr. xxxx as one of the "street lieutenants," who maintained stash houses from which drugs were distributed to street sellers. (PSR at 9)

The district court found that the PSR's characterization of Mr. xxxx as a "street lieutenant" was supported by the evidence at trial. (9/6/90 Tr. 60) In calculating Mr. xxxx's base offense level, the court did not adopt the PSR's finding that the conspiracy involved at least 150 kilograms of cocaine but, instead, concluded that the conspiracy involved 50 or more of kilograms of cocaine, resulting in the same base offense level of 36, based upon the testimony of an accomplice witness that he stored 89 to 93 kilograms of cocaine at one time. (9/6/90 Tr. 62) The sentencing court found that because the total quantity of drugs involved in the conspiracy was reasonably foreseeable to Mr. xxxx, the PSR's base offense level calculation of 36 was correct. (9/6/90 Tr. 62)

Because relevant conduct under U.S.S.G. § 1B1.3 includes acts engaged in by coconspirators, sentences in drug conspiracy prosecutions are often determined based on drug quantities attributable to the particular defendant even where that defendant is not directly involved in the transactions upon which the drug quantity calculation is based. At the time Mr. xxxx was resentenced in September 1990, § 1B1.3 provided in pertinent part that relevant conduct included:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense[.]

Application note 1 of that guideline explained the concept as follows:

Conduct "for which the defendant would be otherwise accountable" as used in subsection (a)(1), includes conduct that the defendant counseled, commanded, induced, procured, or willfully caused. (Cf. 18 U.S.C. § 2) In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant "would be otherwise accountable" also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant. Because a count may be broadly worded and include the conduct of many participants over a substantial period of time, the scope of the jointly-undertaken criminal activity, and hence relevant conduct, is not necessarily the same for every participant. Where it is established that the conduct was neither within the scope of the defendant's agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant's offense level under this guideline. (emphasis added)

Thus, co-conspirators' conduct could be attributed to a particular defendant under § 1B1.3 only if that conduct was "reasonably foreseeable" in connection with that defendant's agreement "to jointly undertake" such activity. In a more recent amendment, which became effective November 1, 1992, the Sentencing Commission attempted to clarify the relevant conduct provisions by delineating the extent of liability for conspiratorial activity. U.S.S.G. App. C, amend. 439. In this regard, the Commission moved the "reasonable foreseeability" requirement into the text of the guideline and rewrote the commentary to emphasize that the "scope of the agreement" and "reasonable foreseeability" are independent and essential elements of conspiratorial accountability. The second note to the new commentary now provides in pertinent part:

In the case of jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:

(i) in furtherance of the jointly undertaken criminal activity; and

(ii) reasonably foreseeable in connection with that criminal activity. (emphasis added)

This court has held that in determining offense levels under § 1B1.3 the district court must make specific findings as to what conduct was reasonably foreseeable to the defendant. United States v. Lam Kwong-Wah, 966 F.2d 682, 688 (D.C. Cir.), cert. denied, 113 S.Ct. 287 (1992); United States v. Perkins, 963 F.2d 1523, 1528 (D.C. Cir. 1992). Other circuits that have addressed the question of accountability for conspiratorial conduct under the relevant conduct guideline provisions have held that the sentencing court must make particularized findings as to both the "scope of the agreement" and "reasonable foreseeability" of coconspirators' conduct. See, e.g., United States v. Carreon, 11 F.3d 1225, 1233-34 (5th Cir. 1994) (scope of agreement and reasonable foreseeability are "independent and necessary elements"); United States v. Conkins, 9 F.3d 1377, 1386-87 (9th Cir. 1993) (district court must make specific findings both as to scope of agreement and reasonable foreseeability of drug amounts attributed to defendants under § 1B1.3); United States v. Jenkins, 4 F.3d 1348, 1346-47 (6th Cir. 1993) (sentencing court must make findings on foreseeability and scope of agreement), cert. denied, 114 S.Ct. 1317 (1994); United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993) (district court must "make individualized findings concerning the scope of criminal activity undertaken by particular defendant"); United States v. Petty, 992 F.2d 887, 890 (9th Cir. 1993) (§ 1B1.3 makes distinction among conspiracy members in terms of scope of particular agreement); United States v. Edwards, 945 F.2d 1387, 1393-95 (7th Cir. 1991) (reasonable foreseeability inquiry involves determining scope of particular defendant's agreement), cert. denied, 112 S.Ct. 1590 (1992).

Although the district court found that the total quantity of drugs involved the conspiracy was reasonably foreseeable to Mr. xxxx, it failed to set forth the reasons in support of its conclusion and it made no findings as to the scope of Mr. xxxx's agreement. Without making these determinations, the sentencing court could not accurately calculate the drug quantity for which Mr. xxxx could be reasonably held accountable. The evidence presented at trial by the government established that Mr. xxxx's role in the conspiracy was limited to maintaining one or more stash houses from which drugs were distributed. However, according to that evidence, not all of the drugs involved in the conspiracy were distributed through the stash houses with which Mr. xxxx was connected. In fact, the district court made a finding at Mr. xxxx's sentencing that some of the drugs involved in the conspiracy were distributed by a coconspirator (Tony Lewis) out of the Bates Street area, which was unrelated to the stash houses maintained by xxxx and others. (9/6/90 Tr. 59) In making this finding, the court relied upon the testimony of accomplice witness Royal Brooks that on numerous occasions Mr. Edmond, the alleged leader of the conspiracy, directed him to deliver drugs to the Bates Street area. (9/6/90 Tr. 59)

Significantly, in calculating the quantity of drugs involved in the conspiracy, the district court again relied upon Brooks's testimony that he stored in his apartment for Mr. Edmond 89 to 93 kilograms of cocaine at one time. (9/6/90 Tr. 62) Since the court specifically found that a portion of the drugs stored by Brooks was distributed out of the Bates Street area, without determining the scope of criminal activity undertaken by xxxx, it could not accurately calculate the quantity of drugs for which he could reasonably be held accountable. Thus, this case should be remanded for the district court to make individualized findings in determining the quantity of drugs distributed that were within the scope of Mr. xxxx's agreement and that were reasonably foreseeable by him. See Conkins, 9 F.3d at 1387 (remand for resentencing for district court to make findings as to whether additional shipment of drugs were reasonably foreseeable and within scope of defendants' agreement); DePriest, 6 F.3d at 12, 13-14 (remand for resentencing where court failed to make specific findings as why entire quantity of drugs in conspiracy could be attributed to defendant); Jenkins, 4 F.3d at 1347 (remand for resentencing for district court to make finding as to scope of criminal activity defendant agreed to undertake); United States v. Young, 997 F.2d 1204, 1212 (7th Cir. 1993) (remand for resentencing for district court to determine whether defendant had reason to know that conspiracy involved more than amount of drugs he actually brokered); Ismond, 993 F.2d at 1499 (remand for resentencing for district court to make individualized findings concerning scope of defendants' involvement with conspiracy to determine drug quantity for which they were responsible); Petty, 992 F.2d at 891 (remand for resentencing for district court to determine scope of each defendant's agreement); Perkins, 963 F.2d at 1528 (remand for resentencing for district court to make specific finding whether quantity of drugs possessed by codefendant was reasonably foreseeable to defendant).

Because it is extremely difficult to apply the relevant conduct guideline provision to a drug conspiracy that spanned approximately four years and included numerous members of varying degrees of culpability and responsibility, Mr. xxxx does not attempt here to determine the drug quantity for which he should be held accountable. Moreover, because the government is attempting to use relevant conduct for purposes of enhancing Mr. xxxx's sentence, it must establish the drug quantity attributable to him by a preponderance of the evidence. United States v. Boney, 977 F.2d 624, 644 (D.C. Cir. 1992). Since the potential period of imprisonment varies greatly according to the drug quantity calculated under the guidelines, the relevant conduct determination under § 1B1.3 must be made with "great care." DePriest, 6 F.3d at 1213. Therefore, Mr. xxxx's sentence should be vacated and his case remanded to the district court to properly make this crucial determination.

C. Relevant Conduct Firearms

Mr. xxxx's PSR recommended that his offense level be increased by two points for firearms possession under U.S.S.G. § 2D1.1(b)(1) on the grounds that it was reasonable to assume that Mr. xxxx was aware that other members of the conspiracy utilized firearms to protect the drug sales and purchases. (PSR at 12, 19a-19b) The district court found that because of the evidence that firearms and ammunition were seized from several stash houses connected to Mr. xxxx and given the large quantity of drugs involved in the conspiracy, he could have reasonably foreseen that his codefendants would have possessed firearms. (9/6/90 Tr. 62-64)

The government did not present any evidence at trial that Mr. xxxx actually or constructively possessed any of the firearms seized in this case. In this regard, although there was evidence connecting Mr. xxxx to at least two stash houses, he was not present at either one when firearms were recovered. (9/20/89 Tr. 77-79, 162-166, 170-172; 9/27/89 Tr. 37) Moreover, although numerous tape recorded conversations among coconspirators were presented by the government, it did not present any evidence that Mr. xxxx discussed firearms with his coconspirators.

The government does not meet its burden of proving relevant conduct by a preponderance of the evidence by merely establishing that the defendant was a member of a drug conspiracy in which firearms were used by coconspirators. United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir. 1994) ("[w]e are not willing to indulge the fiction that a firearm's presence always will be foreseeable to persons participating in illegal drug transactions"). Because there was no evidence presented at trial which indicated that Mr. xxxx reasonably foresaw that firearms were used in furtherance of the drug conspiracy, the weapons enhancement portion of his sentence must be vacated and his case remanded for resentencing.

III. ADOPTION OF CODEFENDANTS' ARGUMENTS

Pursuant to Fed. R. App. P. 28(i), Mr. xxxx adopts the arguments set forth in his codefendants' individual briefs insofar as they are applicable to him.

CONCLUSION

For the foregoing reasons, as well as those set forth in the Joint Brief for Appellants, Mr. xxxx's conviction should be reversed and his case remanded for a new trial. Failing that, Mr. xxxx's sentence should be vacated and his case remanded for resentencing.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

NEIL H. JAFFEE

Assistant Federal Public Defender

On Behalf of Appellant Keith xxxx

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December ___, 1994, I have served by hand two copies of the foregoing Final Brief for Appellant Keith E. xxxx on Elizabeth H. Danello, Assistant United States Attorney, United States Attorney for the District of Columbia, 555 Fourth Street, N.W., Washington, D.C. 20001; and on each of the following by first-class, postage pre-paid mail:

Elise Haldane, Esq.

1900 L Street, NW

#300

Washington, DC 20036

Counsel for

James Antonio Jones

Godwin Oyewole, Esq.

601 Pennsylvania Avenue, NW #900

Washington, DC 20004

Counsel for

Bernice H. McCraw