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 four defendants were convicted of distributing various amounts of cocaine base. The appellant, Stephen Anthony xxxxxx, was one of the defendants in the trial below. The other defendants below were Eric Wilkins, Rodney Rollins, and Edward Magruder. Their appeals to this court, numbers 94-3030, 94-3031 and 94-3032, respectively, were consolidated with this case for appeal. There are no amici.

II. Rulings Under Review:

This is an appeal from the judgment of the district court (The Honorable Royce C. Lamberth), dated February 25, 1994, adjudging appellant guilty of three counts of unlawfully distributing cocaine base. In this appeal, the appellant challenges the sufficiency of the evidence to support the jury's verdict. In addition, appellant seeks review of his sentence, consisting of a term of imprisonment of 188 months, followed by a term of supervised release of 4 years, and a special assessment of $150.00.

III. Related Cases:

The appeals of codefendants xxxx, xxxxxx, xxxxxxxxx,  are pending before this court and have been consolidated with this appeal.

TABLE OF CONTENTS


TABLE OF AUTHORITIES

CASES





STATUTES AND GUIDELINES









UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



NO. xx-3029

UNITED STATES OF AMERICA,



Plaintiff-Appellee;



v.



xxxxxxxxxxxxxxxxxxxxxxxxxxxxx



Defendant-Appellant.



ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



BRIEF OF APPELLANT





ISSUES PRESENTED

I. Whether the evidence was sufficient to support the convictions on Counts Ten, Twelve and Seventeen of the indictment, which charged Mr. xxxxxx with the unlawful distribution of cocaine base.

II. Whether the trial court erred in imposing sentence by (1) attributing to Mr. xxxxxx the total amount of drugs charged in the indictment; (2) enhancing his sentence for being an organizer or leader of the criminal activity; and (3) refusing to permit Mr. xxxxxx a two level reduction of his offense level because of acceptance of responsibility.

STATUTES AND REGULATIONS

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

STATEMENT OF 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

Appellant, Stephen Anthony xxxxxx, was indicted on October 13, 1992, in a twenty-three count indictment. (App. 028-038) (1) Charged along with Mr. xxxxxx were Eric Wilkins, Rodney Rollins, and Edward Magruder. Mr. xxxxxx was charged in eight of the twenty-three counts in the indictment. In Count One, Mr. xxxxxx was charged with conspiracy to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. 846. Counts Ten, Twelve and Seventeen charged Mr. xxxxxx with unlawful distribution of 5 or more grams of cocaine based in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii). In addition, each of Counts Ten, Twelve and Seventeen also charged Mr. xxxxxx with aiding and abetting, in violation of 18 U.S.C. 2. Counts Fourteen and Twenty charged Mr. xxxxxx with unlawful use of a communication facility, in violation of 21 U.S.C. 853. In Count Sixteen, Mr. xxxxxx was charged with attempted distribution of cocaine Base, in violation

of 21 U.S.C. 846. Finally, Count Twenty-three sought the forfeiture of $4,700.00 pursuant to 21 U.S.C. 853.

Trial commenced before the district court and a jury on November 29, 1993. The government presented evidence that in January of 1992 the Narcotic Unit of the Metropolitan Police Department began an investigation concerning the sale of drugs in the 200 block of Upshur Street, N.W., Washington, DC. (12/2/93 Tr. 196-197) The principal evidence concerning the above mentioned investigation was provided by Detective Mark Christopher Stone of the Metropolitan Police Department. (12/2/93 Tr. 195-351; 12/3/93/ Tr. 359-488; 12/6/93 Tr. 493-665) In support of Detective Stone's testimony, the government presented videotape and audio-tape evidence. In addition, there was testimony from other law enforcement officers and civilian witnesses. (12/7/93 Tr. 680-867; 12/8/93 Tr. 877-964)

Detective Stone testified that from January to June of 1992 he operated in an undercover capacity in the area of the 200 block of Upshur Street, N.W., Washington, DC. (12/2/93 Tr. 196-197) During that time, he purchased various amounts of crack cocaine from several individuals. Included among the numerous persons from whom Detective Stone purchased drugs were Stephen xxxxxx, Eric Wilkins, Rodney Rollins and Edward Magruder.

As to Stephen xxxxxx, the government presented evidence that on February 28, 1992, Eric Wilkins sold Detective Stone approximately 8 grams of crack cocaine for one thousand dollars. (12/2/93 Tr. 273-304) That on March 7, 1992, Rodney Rollins sold Detective Stone approximately 18 grams of cocaine base for one thousand dollars. (12/2/93 Tr. 313-351) And that on April 1, 1992, Eric Wilkins sold Detective Stone approximately 6 grams of cocaine base for five hundred dollars. (12/3/93 Tr. 392-445) Although Mr. xxxxxx was not directly involved in the above mentioned transactions, the government asserted through its evidence that Mr. xxxxxx was the supplier of the drugs. The evidence introduced by the government to support its case against Mr. xxxxxx included pager numbers and records, sightings of Mr. xxxxxx in the area of the transactions, and recorded conversations of xxxxxx and others.

At the conclusion of the government's case, the defense rested without presenting any evidence. On December 14, 1994, the jury returned its verdict finding Mr. xxxxxx guilty of Counts Ten, Twelve, and Seventeen charging him with distribution of 5 or more grams of cocaine base and aiding and abetting. (App. 022; 12/14/93 Tr. 1191-1199) The jury was unable to reach an unanimous verdict on Counts One and Fourteen charging Mr. xxxxxx with conspiracy and unlawful use of a communication facility, respectively. Those counts were subsequently dismissed. (App. 022; 12/14/93 Tr. 1191-1199) On Count Twenty, the second unlawful use of a communication facility charge against Mr. xxxxxx, he was acquitted. (App. 022; 12/14/93 Tr. 1191-1199) Count Sixteen, charging Mr. xxxxxx and Mr. Rollins with attempted distribution of cocaine base, was dismissed at the conclusion of the government's case upon the district court's granting of the defendants' motion for judgement of acquittal. (App. 021; 12/8/93 Tr. 999) On February 24, 1994, the district court sentenced Mr. xxxxxx to a term of imprisonment of 188 months on each of Counts Ten, Twelve, and Seventeen, to run concurrently. Upon his release from prison, Mr. xxxxxx has to serve a term of supervised release of 4 years and a special assessment of $150.00. (App. 039-042; 2/24/94 Tr. 65-66) Thereafter, on March 4, 1994, a timely notice of appeal was filed on behalf of Mr. xxxxxx. (App. 043) Mr. xxxxxx is incarcerated pending this appeal.

SUMMARY OF ARGUMENT

Stephen xxxxxx contends that the evidence was insufficient to sustain his convictions for distributing cocaine base and aiding and abetting. Each of the drug transactions for which Mr. xxxxxx was convicted, February 28, 1994, March 7, 1992, and April 1, 1992, were conducted by someone other than Mr. xxxxxx. There was no evidence that Mr. xxxxxx supplied the drugs which were sold to the undercover officer. Further, there was not any evidence that Mr. xxxxxx received any of the payment for the drugs. Thus, the evidence failed to establish beyond a reasonable doubt that Mr. xxxxxx either distributed cocaine base or aided and abetted in the distribution of cocaine base.

In addition, Mr. xxxxxx asserts that his base offense level under the Sentencing Guidelines should have been based solely upon the amount of drugs that pertained to the transactions for which he was convicted. The evidence did not support the district court's finding that all of the drug transactions alleged in the indictment were jointly undertaken and reasonably foreseeable by Mr. xxxxxx. Thus, Mr. xxxxxx' sentence should be vacated and the case remanded to the trial court for a resentencing based upon the amounts of drugs for which Mr. xxxxxx was convicted.

Further, Mr. xxxxxx submits that his offense level should not have been increased by two points, under U.S.S.G. 3B1.1(c), for being a manager or organizer. The evidence did not establish that Mr. xxxxxx gave orders, set the price of drugs, arranged the details of drug transactions or exercised control in any way over the other defendants in the case. Thus, the district court clearly erred in ruling that Mr. xxxxxx was a manager or organizer and this case must be remanded for resentencing.

Finally, Mr. xxxxxx contends that he is entitled to a two point reduction of his offense level, under U.S.S.G. 3E1.1, because he accepted responsibility for the conduct pertaining to his counts of conviction. Thus, because the district court clearly erred in finding that Mr. xxxxxx was not entitled to the aforementioned two level reduction where he had not accepted responsibility for all of his conduct, the sentence must be vacated and this case remanded for resentencing.

ARGUMENT

I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION

A. Standard of Review

As has been stated many times, "[t]he standard for overturning a guilty verdict on the grounds of insufficiency of evidence is ... a demanding one." United States v. Monroe, 990 F.2d 1370, 1373 (D.C. Cir. 1993) (quoting United States v. Lam Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir. 1991)). The reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

A defendant challenging a conviction because of insufficient evidence faces a burdensome task. However, it is not a hopeless one. The reviewing court's examination is not "entirely toothless," and its duty is not discharged by the mere "rote incantation of [the principles governing a review of sufficiency of evidence] followed by summary affirmance. [It] must ensure that the evidence adduced at trial is sufficient to support a verdict as a matter of law. A jury is entitled to draw a vast range of reasonable inferences from evidence, but may not base a verdict on mere speculation." United States v. Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993) (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.), cert. denied, 498 U.S. 948 (1990)).

B. The Evidence Was Insufficient To Prove Beyond A Reasonable Doubt That Stephen xxxxxx Unlawfully

Distributed Or Aided And Abetted In The Distribution

Of Cocaine Base

In the present case,  xxxxxx was convicted of three counts of unlawfully distributing in excess of 5 grams of crack cocaine. The drug transactions for which he was convicted occurred on February 28, March 7, and April 1 of 1992. A review of the evidence of the aforementioned transactions, even when considered in a light which is most favorable to the government, fails to establish beyond a reasonable doubt that Stephen xxxxxx was a participant in those drug deals.

As to Count Ten, the evidence established that on February 28, 1992, Detective Stone went to the 200 block of Upshur Street, N.W., Washington, DC, to purchase one ounce of crack cocaine from Eric Wilkins. (12/2/93 Tr. 273-274) That this meeting with Wilkins was arrange on a prior occasion. That after a long period of time, Eric Wilkins sold Detective Stone approximately 8 grams of crack cocaine for one thousand dollars. (12/2/93 Tr. 273-300) That on February 28, 1992, Detective Stone did not have any contact with Mr. xxxxxx. On that date, Detective Stone did not see, talk to, receive anything from or give anything to Mr. xxxxxx. (12/6/93 Tr. 535-536, 547-548) Finally, that on February 28, 1992, Detective Stone did not see Mr. xxxxxx give anything to or receive anything from Eric Wilkins. (12/6/93 Tr. 54, 580-581)

Next, with regard to Count Twelve, the evidence established that on March 7, 1992, Detective Stone met with Rodney Rollins in the area of Rock Creek Church Road and Webster Street, N.W., Washington, DC. (12/2/93 Tr. 311-313) This meeting with Rollins was arranged on March 6, 1992. (12/2/93 Tr. 311-313) That Detective Stone was to purchase an ounce of crack cocaine from Mr. Rollins for $1000.00. That during the March 7, 1992, Mr. Rollins met Detective Stone in his car and had an extended conversation with him. (12/2/93 Tr. 322-340) Subsequently, Mr. xxxxxx arrived and entered Detective Stone's car. (12/2/93 Tr. 341) After a short conversation, Mr. xxxxxx left. (12/2/93 Tr. 341-345) After Mr. xxxxxx left, Rodney Rollins remained with Detective Stone for another short period of time. Then Rollins walked around the corner and returned with approximately 17.97 grams of cocaine base. (12/2/93 Tr. 345-346) He sold drugs to Detective Stone for $1000.00. (12/2/93 Tr. 345-346) Again, there was no evidence that Mr. xxxxxx supplied the drugs which Rollins sold to Detective Stone.

Finally, as to Count Seventeen, the April 1, 1992, transaction, the evidence established that Detective Stone was once again in the area of the 200 block of Upshur Street to meet with Eric Wilkins. (12/3/93 Tr. 392) On this occasion, Detective Stone was to meet Wilkins to purchase one ounce of crack cocaine. (12/3/93 Tr. 392) After waiting for a long period of time, talking to Wilkins and other individuals in the area (12/3/93 Tr. 392-439), Detective Stone purchased approximately seven grams of cocaine base from Eric Wilkins for $500.00. (12/3/93 Tr. 439-440) Wilkins retrieved these drugs from behind a house in the 600 block of Upshur Street. (12/3/92 Tr. 439-440) On April 1, 1992, Detective Stone did not have any contact with Mr. xxxxxx. On that date, Detective Stone did not see, talk to, or receive anything from or give anything to Mr. xxxxxx. (12/6/93 Tr. 583-585) Finally, on that date, Detective Stone did not see Mr. xxxxxx give anything to or receive anything from Eric Wilkins. (12/6/93 Tr. 583-585) Thus, the evidence does not establish that Mr. xxxxxx directly participated in any of the drug transactions, supplied any of the drugs, received any of the payments, or directed anyone to so act in his behalf.

The appellant recognizes that circumstantial evidence is as legally sufficient as direct evidence. However, while circumstantial evidence may sustain a conviction, the inferences adduced must construct "a logical and convincing connection between the facts established and the conclusion inferred." United States v. McNeill, 887 F.2d 448, 450 (3rd Cir. 1989).

In this case, the circumstantial evidence cannot support a guilty verdict beyond a reasonable doubt. The proximity of Mr. xxxxxx' residence, 204 Varum Street, N.W., Washington, DC, to the area of the transactions; the use of Mr. xxxxxx' pager number by some of the participants in the transactions; the mere presence of Mr. xxxxxx in the area during the time period of the some of the transactions; the vague statements of the participants to the undercover concerning their drug source; and even Mr. xxxxxx' own uncorroborated statements are insufficient circumstantial evidence to support a conclusion beyond a reasonable doubt that he was involved in the drug transactions of which he was convicted. Thus, to infer that Stephen xxxxxx participated in the drug transactions contained in Counts Ten, Twelve, and Seventeen would amount to mere speculation and cannot support a guilty verdict.

Finally, the evidence failed to establish beyond a reasonable doubt that Stephen xxxxxx aided and abetted the distribution of drugs. The offense of aiding and abetting is defined in 18 U.S.C. 2(a) which provides that a person who "aids, abets, counsels, commands, induces, or procures" the commission of a crime is punishable as a principal. The essential elements necessary to sustain a conviction for aiding and abetting are: "(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. Poston, 902 F.2d 90 (D.C. Cir. 1990) (quoting United States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982)). In the present case, there is no evidence that Mr. xxxxxx instructed or urged Wilkins or Rollins to initiate their deals with the undercover officer. Further, there was not any evidence that Mr. xxxxxx was aware of any of the activity which occurred between Rollins or Wilkins and the undercover officer when he was not present. Thus, as there is no evidence that Mr. xxxxxx supplied the drugs sold by Rollins and Wilkins, or even that he had knowledge of their activity, it was not proven beyond a reasonable doubt that Mr. xxxxxx intentionally, assisted Rollins and Wilkins with their drug dealing.

II. THE TRIAL COURT ERRED IN ATTRIBUTING TO MR. xxxxxx FOR SENTENCING PURPOSES THE TOTAL QUANTITY OF DRUGS CONTAINED

IN THE INDICTMENT AS RELEVANT CONDUCT AND IN INCREASING HIS

BASE OFFENSE LEVEL UNDER U.S.S.G. 3B1.1(c) FOR BEING A

MANAGER OR ORGANIZER AND IN DENYING HIM A REDUCTION OF HIS

OFFENSE LEVEL PURSUANT TO U.S.S.G. 3E1.1 FOR ACCEPTANCE

OF RESPONSIBILITY.



In the present case,  xxxxxx, xxxxxxx, xxxxxxxxx, and xxxxxxxxxx were convicted of several counts of unlawful distribution of cocaine base. Although, they originally had been charged with conspiracy to distribute cocaine base, the jury was unable to reach an unanimous verdict on that count and it was subsequently dismissed. (App. 022; 12/14/93 Tr. 1191-1199) Mr. xxxxxx was convicted for three separate transactions, Counts Ten, Twelve, and Seventeen. The total amount of cocaine base involved in Mr. xxxxxx' counts of conviction was 30.96 grams. (App. 151) Mr. xxxxxx was convicted of six additional drug distributions in addition to the two counts in which he was charged with Mr. xxxxxx. xxxxxx was convicted of two additional transactions along with the one count in which he was charged with Mr. xxxxxx. xxxxxxxxxx was convicted of five separate, independent drug transactions. (App. 022) The total amount of cocaine base resulting from all of the above mentioned transactions was 51.17 grams. (PSI at 10) (2)

On February 24, 1994, the district court concluded that the trial evidence had established proof of the conspiracy, at least by a preponderance of the evidence (App. 146), and determined that the entire 51.17 grams was attributable to each of the defendants for Sentencing Guideline purposes. (App. 177) In Mr. xxxxxx' case the district court also increased his offense level by two points for being a manager and organizer under U.S.S.G 3B1.1(c). Further, the sentencing court refused to reduce Mr. xxxxxx' offense level by two points, pursuant to U.S.S.G. 3E1.1, for accepting responsibility. (App. 182-186, 196-197) Finding that Mr. xxxxxx' total offense level was 34, the district court sentenced him to imprisonment for a term of 188 months. (App. 039-042, 204-205)

In the present case, Mr. xxxxxx's case should be remanded for resentencing because the evidence did not support the conclusion that the individual, independent, drug dealings of the other defendants were jointly undertaken and reasonably foreseeable by him. Further, the evidence did not support the determination that Mr. xxxxxx was a manager or organizer of the other defendants. Finally, under the circumstances of this case, Mr. xxxxxx should have been granted the two point reduction for acceptance of responsibility.

A. Standard of Review

The district court's determination of the drug quantity for purposes of relevant conduct is a factual conclusion that is reviewed for clear error. United States v. DePriest, 6 F.3d 1201 (7th Cir. 1993). Similarly, the district court's finding that the defendant was a manager or organizer is also reviewed for clear error. United States v. Paz, 927 F.2d 176, 180 (4th Cir. 1991); United States v. Jewel, 947 F.2d 224 (7th Cir. 1991) Finally, the district court's decision as to acceptance of responsibility is also reviewed under the clearly erroneous standard. United States v. Taylor, 937 F.2d 676 (D.C. Cir. 1991).

B. Mr. xxxxxx Should Not Be Responsible For The Individual

Transactions Of The Other Defendants.

In the present case, the district court in imposing sentence accepted "the sentencing guidelines as prepared by the probation officer." (App. 196) Mr. xxxxxx' Presentence Investigation Report concluded that the total quantity of drugs purchased by the undercover officer from all of the defendants, 51.17 grams, was attributable to each defendant because the evidence indicated that they acted in concert and/or knew of each other's activities such that their criminal activity was jointly undertaken and reasonably foreseeable. (PSI at 9)

Under U.S.S.G. 1B1.3 the base offense level for "jointly undertaken criminal activity" is based upon all of the reasonably foreseeable acts of others committed in furtherance of the jointly undertaken criminal activity. Application Note 1 of U.S.S.G. 1B1.3 defines "jointly undertaken criminal activity" as a "criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others." Application Note 1 further explains that a defendant is only accountable for the conduct of others where it was "in furtherance of the jointly undertaken criminal activity" and it was "reasonably foreseeable in connection with the criminal activity."

In this case, the evidence did not establish that the various drug sellers in the "open air drug market" (12/6/93 Tr. 571) of the 200 block Upshur Street, N.W., were involved in a endeavor with each other to sell drugs. To the contrary, the evidence established that even the defendants in this case were acting independently of each other to advance their sales. Even the undercover officer attempted to keep his individual plans and deals with Rollins, Wilkins and Magruder separate from each other. He was constantly reminding each of them not to inform the other of his independent transactions with them. Further, as to Mr. xxxxxx, at best, the evidence merely established that he had a relationship with Mr. Rollins and a separate relationship with Mr. Wilkins. Therefore, the evidence did not establish, even by a preponderance, that Mr. xxxxxx was jointly involved with Wilkins, Rollins and Magruder.

Further, the evidence in this case did not support a finding that the individual, independent sells of drugs by the other defendants was reasonably foreseeable by Mr. xxxxxx. In this case, the evidence completely failed to establish that xxxxxx was the supplier of the drugs for each of the other defendant's transactions with the undercover officer. The evidence showed that each of the other defendants had connections to other places, such as 229 Upshur Street, and other drivers of expensive cars prior to some of their transactions with the undercover officer. None of the aforementioned contacts had any connection to Mr. xxxxxx. This is especially so in light of both Magruder's and Rollins' post-arrest statements. Magruder told the police that the area of Upshur Street was just independent dealers. (App. 151) After his arrest, Mr. Rollins told the officers that he had obtained the drugs which he delivered to the undercover officer on April 4, 1992 (Count Nineteen) from an individual named Bryant. (App. 152) Thus, the evidence clearly did not establish that all of the activity of the defendants was jointly undertaken and that the other defendants' individual transactions were reasonably foreseeable to Mr. xxxxxx. Finally, this court has held that in determining offense levels under U.S.S.G. 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). In the present case, the court merely accepted the conclusions of the presentence writer. Therefore, Mr. xxxxxx' case should be remanded for resentencing.

C. Mr. xxxxxx Does Qualify As A Manager Or Organizer

In this case, the district court accepted the presentence investigator's conclusion that Mr. xxxxxx, as "the supplier of the cocaine base," was a leader or organizer of the criminal activity. (PSI at 9, 10) U.S.S.G. 3B1.1(c) provides for a two point increase where "the defendant was an organizer, leader, manager, or supervisor in any criminal activity. . ."

In Mr. xxxxxx' case, the above mentioned enhancement was imposed because he was the supplier of the drugs. However, there was no evidence that he directed the activities of the other participants, set the prices for the drugs, negotiated or arranged the time and location of the transactions, that he received a larger share of he profits, or that he exercised any control over the other defendants. Thus, none of the factors enumerated in Application Note 4 of U.S.S.G. 3B1.1 are present in this case.

In United States v. Veilleux, 949 F.2d 522 (1st Cir. 1991), the court indicated that in order for the enhancement of 3B1.1(c) to apply, the sentencing court "must make a factual finding that there were at least two participants," and that "the evidence must show `[t]hat the defendant exercised control over, or was otherwise responsible for organizing the activities of, at least one other individual in committing the crime.'" Id. at 524 (quoting United States v. Akitoye, 923 F.2d 221 (1st.Cir. 1991)). In Veilleux, the court affirmed the enhancement where the evidence indicated, among other things, that the defendant assumed his father's drug operation, took over the accounts receivable, issued orders concerning all of the deals, set the prices, collected the debts, and was described as the leader by the witnesses. Unlike Veilleux, the evidence here did not establish that Mr. xxxxxx exercised any of those roles, thus, the district court's ruling that he was a manager or organizer was clearly erroneous.

D. Mr. xxxxxx Was Entitled To A Reduction Of His

Offense Level For Acceptance of Responsibility

Following his conviction on Counts Ten, Twelve and Seventeen, Mr. xxxxxx met with the presentence investigator and admitted his involvement in his counts of conviction. However, at his sentencing the district court denied Mr. xxxxxx' request for a two level reduction of his offense level, pursuant to U.S.S.G 3E1.1, for acceptance of responsibility. (App. 184-196)

U.S.S.G. 3E1.1 provides for a two level reduction of the offense level for acceptance of responsibility. Application Note 1(a) of 3E1.1 provides that the defendant only has to admit responsibility for the offenses of conviction.

Mr. xxxxxx' PSI indicates that he was not entitled to the acceptance of responsibility reduction because he went to trial and only admitted the conduct of which he was convicted. (PSI at 10) However, as was argued by all counsel at the sentencing hearing, the defendants were forced to trial by the government's refusal to allow them to plead guilty to their individual counts and not the conspiracy. It was the defendants' position, as indicated by some of their post-arrest statements and the evidence at trial, that they were not jointly involved in a conspiracy. Thus, defendants could not agree to the requirement that they plead guilty to the conspiracy. Therefore, because he accepted responsibility for his counts of conviction, Mr. xxxxxx was entitled to the two point reduction under 3E1.1.

CONCLUSION

For the foregoing reasons, Mr. xxxxxx conviction should be reversed. Failing that, Mr. xxxxxx' sentence should be vacated and his case remanded for resentencing.




Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER







W. GREGORY SPENCER

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



CERTIFICATE OF LENGTH



I hereby certify that the foregoing brief for appellant, xxxxxx, does not exceed the number of words permitted Rule 28(d) of the General Rules of this Court.



W. GREGORY SPENCER

Assistant Federal Public Defender







CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of November, 1994, two copies of the foregoing Brief of the Appellant and one copy of the accompanying Appendix was served by personal delivery, upon the Office of the United States Attorney, Appellate Division, 555 Fourth Street, N.W., Washington, DC 20001. Also, one copy of the foregoing Brief of the Appellant and one copy of the accompanying Appendix was served by first class mail, postage prepaid, upon Jane Norman, Esquire, 601 Pennsylvania Avenue, Suite 900, Washington, DC, 20004; Elaine Mittleman, Esquire, 2040 Arch Drive, Falls Church, VA, 22043; and, Henry Schoenfeld, Esquire, 601 Indiana Avenue, N.W., Suite 512, Washington, DC 20004.



W. GREGORY SPENCER

Assistant Federal Public Defender




1. "App" refers to the appendix filed with this brief. "Tr" refers to the trial transcripts which are designated by date and page number.

2. Mr. xxxxxx' Presentence Investigative Report ("PSI") will be filed under seal simultaneously with but separately from the Appendix in this case.