TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

JURISDICTION 1

ISSUES PRESENTED FOR REVIEW 2

STATUTES AND RULES 2

STATEMENT OF THE CASE 3

A. Nature of the Case, Course of Proceedings,

and Disposition in the Court Below 3

B. Statement of Facts 4

SUMMARY OF ARGUMENT 14

ARGUMENT 15

I. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF

THE INTERSTATE COMMERCE NEXUS REQUIRED FOR WIRE FRAUD 15

A. Standard of Review 15

B. The Evidence That Appellant Received A Telephone

Call From The District Of Columbia On A Cell Phone Carrying A Maryland Exchange Did Not Establish An

Interstate Wire Communication When There Was No

Evidence That Appellant Was Outside The District

Of Columbia When He Received The Call. 15

II. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF

FIRST-DEGREE FRAUD OF PROPERTY WITH A VALUE OVER $250 20

A. Standard of Review 20

B. The Government's Only Evidence Of Value Went To

A Property Interest Different Than That Which

Appellant Caused The District of Columbia To Lose. 20

III. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF

FORGERY WITH RESPECT TO THE PD-81 PROPERTY RECORD

FOR THE DRUG EVIDENCE 23

A. Standard of Review 23

B. The PD-81 Was Not False 23

CONCLUSION 26

TABLE OF AUTHORITIES

CASES

Burks v. United States,

437 U.S. 1 (1978) 15

Center Cadillac v. Bank Leumi Trust Co.,

808 F. Supp. 213 (S.D.N.Y. 1992) 16

Jackson v. Virginia,

443 U.S. 307 (1979) 15

McNally v. United States,

483 U.S. 350 (1987) 21

Smith v. Ayres,

845 F.2d 1360 (5th Cir. 1988) 16

United States v. Freeman,

524 F.2d 337 (7^th Cir. 1975),

cert. denied, 424 U.S. 920 (1976) 16

United States v. Johnson,

952 F.2d 1407 (D.C. Cir. 1992) 15

*United States v. Paredes,

950 F. Supp. 584 (S.D.N.Y. 1996) 18

*United States v. Stevens,

842 F. Supp. 96 (S.D.N.Y. 1994) 19

*United States v. Weathers,

169 F.3d 336 (6th Cir.),

cert. denied, 528 U.S. 838 (1999) 18-19

STATUTES AND RULES

18 U.S.C. § 1343 17

D.C. Code § 22-3801 21

D.C. Code § 22-3821 3, 20, 22

D.C. Code § 22-3822 3, 20, 22

D.C. Code § 22-3841 3, 23

D.C. Code § 22-3842 3, 23

Fed. R. Evid. 402 15-16

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________

No. xx-3154

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________________

BRIEF FOR APPELLANT

____________________________________________

JURISDICTION

The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal from the final judgment of the district court having been filed on November 29, 1999, this Court has jurisdiction over this appeal under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the government presented sufficient evidence of federal wire fraud (Count 3) when the interstate commerce nexus charged was a telephone call alleged to be from the District of Columbia to Maryland but there was no evidence the defendant was in Maryland when he received the call, but simply that he did so on a cellular telephone with a Maryland telephone number.

II. Whether the government presented sufficient evidence of first degree fraud involving a deprivation of property having a value greater than $250 (Count 9 - D.C. Code) when the only value evidence was of the value of a truck appellant was charged with scheming to prevent the District of Columbia from forfeiting but there was no evidence that appellant, by returning the truck to its owner, succeeded in depriving the District of its right to seek such a forfeiture as opposed to its mere possessory interest in the truck during the pendency of any such proceeding - an interest for which the government presented no evidence of value.

III. Whether the government presented sufficient evidence of forgery of a PD-81 Property Record relating to the seizure of narcotics evidence (Count 14 - D.C. Code) when the subject form contains no factual misrepresentation.

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

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

On January 8, 1999, a federal grand jury returned a 17-count indictment against appellant Wallace xxxxxx, a former police officer, charging him with conspiracy to accept a bribe and commit fraud in violation of 18 U.S.C. § 371 (Count 1), accepting a bribe in violation of 18 U.S.C. § 201(b)(2)(A) & (C) (Count 2), wire fraud in violation of 18 U.S.C. §§ 1343, 1346 (Counts 3-8), first-degree fraud in violation of 22 D.C. Code §§ 3821, 3822(a) (Count 9), tampering with evidence in violation of 22 D.C. Code

§ 723 (Count 10), forgery in violation of 22 D.C. Code §§ 3841, 3842(a) (Counts 11-15), and obstructing justice in violation of 22 D.C. Code § 722(a)(6) (Counts 16 and 17). (Appx. 12-36). ⁽¹⁾ Co-defendant Clement xxxxx was charged in Counts 1-8 and Count 17 with acting as a middleman in arranging payment of the alleged bribe. On March 17, 1999, xxxxx pleaded guilty to Count 2 and agreed to cooperate with the government, in exchange for which the remainder of his charges were dismissed.

On July 19, 1999, appellant's jury trial commenced before the Honorable Thomas F. Hogan. On July 30, 1999, the jury returned verdicts acquitting Mr. xxxxxx of conspiracy, bribery, and five of the six wire fraud counts, but convicting him of Count 3 (wire fraud), Count 9 (D.C. Code first-degree fraud), Count 10 (D.C. Code tampering), Counts 11-15 (D.C. Code forgery) and Counts 16 and 17 (D.C. Code obstruction of justice). At sentencing on November 17, 1999, Judge Hogan ordered Mr. xxxxxx to serve concurrent prison terms of 16 months on the federal wire fraud count (followed by 3 years of supervised release), 1-3 years on the D.C. Code fraud, tampering, and forgery counts, and 3-9 years on the D.C. Code obstruction counts. (Appx:40-41). Mr. xxxxxx filed a timely notice of appeal. (Appx:46).

B. Statement of Facts

In 1995, at the time of the events alleged in this case, Mr. xxxxxx was a Metropolitan Police Department ("MPD") Officer assigned to the Fourth District ("4-D") Vice Unit. The government's case was presented through the testimony of 1) co-defendant xxxxxxxxxxx, who claimed to have acted as a go-between to pay a bribe to Mr. xxxxxx from a drug defendant; 2) the drug defendant, xxxxxxxxx, and his father-in-law, xxxxxxx; 3) the Assistant United States Attorney who had papered zzzzzz's drug case; 4) several 4-D police officers, including the officers responsible for handling property in that district; 5) MPD Property Clerk Debra Howard, who testified as an expert in MPD policies regarding the handling of property; and 6) an attorney who handles forfeitures for the D.C. Corporation Counsel. The defense presented the testimony of defense attorney Archie Nichols, who represented xxxxxx in his drug case and who contradicted certain claims made by Clement xxxxx.

The government's evidence showed that on September 13, 1995, Mr. xxxxxx and other 4-D vice officers observed xxxxxx appearing to engage in a drug transaction from his 1987 Dodge Raider truck. When the officers found a third of a gram of crack in plain view in the truck and 6 grams of crack in zzzzzz's sock, they arrested zzzzzz and the other participant to the transaction, zzzzzz's brother-in-law, Ronald Stevens. zzzzzz told appellant that he owned the truck and appellant exercised his discretion to seize it for civil forfeiture.

Appellant prepared a PD-81 Property Record for the truck, classifying it as held for civil forfeiture, and pursuant to MPD policy requiring that PD-81's be approved by an officer with a rank of lieutenant or above, obtained the signature of Lieutenant Angel Medina.

The next day, September 14, 1995, zzzzzz's case was papered and he was presented in D.C. Superior Court. zzzzzz's father-in-law, Warren Stevens, while waiting with his daughter Warrenette for zzzzzz's case to be called, ran into Clement xxxxx, whom he had gone to junior high school with and later worked with. xxxxx was a courthouse fixture who made his living as a freelance defense investigator but spent much of his time in the police liaison lounge playing cards with the officers waiting to testify. (7/26/99am:4, 8-9). Stevens testified that xxxxx said he "could get [zzzzzz] off his charges" (7/22/99pm:22), so Stevens, who was under the impression that xxxxx was "some kind of attorney in court or something," (id.), introduced zzzzzz to xxxxx in the courthouse hallway after zzzzzz's release at about 6:00 p.m.

At this point, the testimony of zzzzzz and xxxxx diverge. According to zzzzzz, while at the courthouse, "paralegal" xxxxx showed him paperwork from zzzzzz's prior cases and current charge and indicated he could introduce zzzzzz to a lawyer "who could make this whole thing go away." (7/20/99pm:15-16, 88). zzzzzz, who had been planning to keep his court-appointed attorney, was quite hesitant but xxxxx offered his family a ride home and on the way told zzzzzz that he knew his arresting officer, xxxxxx, and showed him xxxxxx's number in his phone book. (7/20/99pm:16).

zzzzzz told xxxxx that he wanted to get his truck back and retrieve his jewelry (for which he had not been given a property receipt). (7/20/99pm:17-19). xxxxx offered to call xxxxxx and "get things squared away." (7/20/99pm:16-17). As they were driving up Georgia Avenue, xxxxx said he would call xxxxxx to get the jewelry back and made a telephone call (the basis for appellant's wire fraud conviction) in the presence of zzzzzz, his wife, and father-in-law. (7/20/99pm:24). When xxxxx hung up, he said that "xxxxxx will be up there shortly because he was on another run right now, and he should be coming up the avenue next ten or fifteen minutes." (7/20/99pm:24-25). (Cell phone records indicated that appellant received an incoming call on number (301) 538-9925 at 6:43 p.m.) (Appx:49; 7/21/99pm:58, 77). They waited at the Amvet thrift store across the street from the precinct for 20-30 minutes, at which time xxxxx met briefly with appellant outside the precinct. (7/20/99pm:25-26). When xxxxx returned to the car, he handed zzzzzz his wedding ring. (7/20/99pm:26). When zzzzzz complained that other jewelry had also been taken, xxxxx told him he was lucky to have gotten the ring back and not to be ungrateful. (7/20/99pm:27).

xxxxx's story was different. According to xxxxx, zzzzzz's wife had said she needed the truck for transporting the kids and, upon his release, zzzzzz, too, said he wanted the truck back. (7/26/99am:13-14). xxxxx informed zzzzzz that he knew his arresting officer, and showed zzzzzz that he had appellant's phone numbers in his book. (7/26/99am:15). xxxxx then called the 4-D vice office from the first floor of the courthouse and appellant answered the phone. (7/26/99am:15). xxxxx inquired as to how the truck had been classified and whether it could be released. Appellant said he would look into it and get back with xxxxx. (7/26/99am:16). Within 5 to 10 minutes, xxxxx received a page from appellant. Still at the courthouse, xxxxx immediately telephoned appellant back, at which time, according to xxxxx, appellant asked, "What is he working with?," which xxxxx interpreted as a solicitation of a bribe. When xxxxx indicated that zzzzzz did not have money, appellant responded that he must have money if he's selling dope. (7/26/99am:16-17). According to xxxxx, the call ended with an agreement that xxxxx would check with zzzzzz and appellant would check further about the truck. (7/26/99am:17).

xxxxx relayed this conversation to zzzzzz, who indicated that he had money, although not with him. (7/26/99am:17-19). xxxxx told zzzzzz the case would cost him between $3500 and $4500, including hiring a lawyer and getting the truck back. (7/26/99am:18-20). zzzzzz offered to write a check for $2,000 and xxxxx said that would be enough to get started. (7/26/99am:19).

xxxxx then testified that he offered to give the others a ride from the courthouse and zzzzzz said he had not gotten a receipt for his property and wanted to go to the 4-D precinct to get his "gold." (7/26/99am:20-21). xxxxx tried to persuade zzzzzz not to go to the precinct in the state of mind he was in but zzzzzz was determined to go so xxxxx agreed to take him. (7/26/99am:21). As to the telephone call that formed the basis for the wire fraud conviction, xxxxx testified as follows:

Q Did you do anything to communicate to the defendant that zzzzzz wanted his gold?

A Yes.

Q What did you do?

A I stopped en route and in fact I think in the neighborhood of the precinct of the Fourth District I stopped at a public phone and I made the call. I called him and I said, xxxxxx, these people want their gold. This man wants his gold.

Q And when he was told that, how did he respond?

A He says, come on up to the precinct, but don't come in. I will meet you, I will come out.

(7/26/99am:21). Without any suggestion that he had to wait for appellant to return to the precinct, xxxxx testified that he parked in the Amvet parking lot, told the others to wait in the car, and walked over to the mouth of an alley across the grounds from the precinct, at which point appellant came out of the entrance to the precinct and ran over and gave xxxxx "some gold." xxxxx returned to the car and gave it to zzzzzz. (7/26/99am:22-23, 85-86). (According to xxxxx, zzzzzz said nothing at the time, but later than night, zzzzzz called him at home to complain that some jewelry was missing and xxxxx in turn called xxxxxx at the precinct and chastised him about it. (7/26/99am:30).)

After the return of his ring, zzzzzz wrote xxxxx a check for $2000, with the notation "legal services" on the memo line and "Truck, Jeep, xxxxxx" on the back of the check register carbon. (7/20/99pm:27-33; Govt. Ex. GW-2A; Govt. Ex. GW3-A).

xxxxx testified that the next day, September 15, 1999, he cashed the check, called appellant at the precinct and told him, "I got what you need." (7/26/99am:24). Appellant drove over to the front of xxxxx's apartment building and xxxxx handed him $250 and said "there is more coming." (7/26/99am:24-26). xxxxx testified that on the day of zzzzzz's preliminary hearing on September 21, 1999, xxxxx saw appellant in the courthouse and gave him a final $250. (7/26/99am:27-28).

In the interim, on September 16, 1999, appellant told some of his fellow vice officers that he thought there were more drugs in zzzzzz's truck and suggested they search it again. (7/21/99am:39). Several officers then went out to the 4-D parking lot with appellant and began to search. Officer Goodwin opened a "secret hiding spot" in the console and saw what he thought was, and what others described as, an "8-ball" of crack cocaine (an eighth of an ounce, or 3.5 grams). (7/23/99pm:36, 40). Appellant told Goodwin he would take custody of the drugs and later, back inside the office, Goodwin saw appellant placing the drugs in a "heatseal" evidence bag, but did not see him seal it. (7/23/99pm:37-44).

Sergeant John Johnson came out to the parking lot shortly after the drugs were discovered and appellant approached him to say that he had learned that the truck actually belonged to a relative of zzzzzz's who really needed it and asking if it could be released. (7/22/99am:26-28,31). ⁽²⁾ The sergeant responded that since the paperwork had been completed the matter was in the hands of the Property Division. When appellant asked whether there was anything that could be done at the district level, the sergeant suggested asking the lieutenant who had signed the PD-81 to change the classification. (7/22/99am:26-31).

Documents were admitted showing that, sometime after Lieutenant Medina signed the PD-81 showing the "civil forfeiture" classification, appellant marked through that classification in red ink, amending it to indicate that the truck was being held for "safekeeping," and initialing his change with the notation "WSN." He amended the Property Book in the same manner.

During the two weeks following the truck's seizure, there were several telephone calls between zzzzzz and xxxxx, xxxxx and xxxxxx, xxxxx and Stevens, and Stevens and zzzzzz, concerning the release of the truck (five of which formed the bases for the wire fraud counts of which appellant was acquitted). Finally, on September 28, 1995, appellant told xxxxx to have Warren Stevens come to the precinct at 6:00 that evening and appellant would be there to release the truck. After Stevens signed the property book as "owner" and appellant signed as witness, appellant brought the truck around to the side of the building. As he gave Stevens the keys, appellant said, "Oh, still some more of this so-and-so in the car" and threw a little bag of something into the bushes. (7/22/99pm:33-40). Sometime subsequent to the release of the truck, one of the 4-D property officers transferred the release information from the Property Book to the PD-81, but the PD-81 for the truck was never entered into MPD's computerized property tracking system.

Within a couple of days after the release of the truck on September 28, 1995, vice officer Eric Espinosa checked the Property Book, and saw that the truck's classification had been changed to safekeeping, and that it had been released to someone other than the registered owner. (7/21/99am:43-44). He also discovered that the drugs from the second search of zzzzzz's truck had not been put on the Property Book. (7/21/99am:51). Espinosa brought this to the attention of his colleague Tonce Cutler, who brought it up with appellant. (7/22/99pm:10-12). Appellant told Cutler that the vehicle belonged to the grandparents, not zzzzzz, and that keeping it would hinder them more than it would help the department. (7/22/99pm:13). When Cutler asked whether appellant had gotten with the Property Clerk about changing the classification, appellant stated that he took care of it. (7/22/99pm:14). When Cutler brought up the drugs, appellant looked surprised and said he had forgotten. (7/22/99pm:14-15).

On October 3, 1995, appellant pulled Espinosa aside and asked why he had implied that appellant was working both sides of the fence. When Espinosa asked why appellant released the Raider, appellant said it was a raggedy old truck and belonged to a friend of a friend. (7/21/99am:52-55). With respect to the drugs, appellant said they were in his desk. When Espinosa said, "show me the drugs and we will forget the whole thing," appellant agreed, but as they began walking to appellant's desk, his phone rang. When appellant got off the phone, he said he had to take care of something and hurriedly left. (7/21/99am:56-59).

Later that day, Espinosa reported what he had found to Captain Joseph Adamany (7/21/99am:60), who checked the Property Book and saw that the last entry was an October 3, 1995, entry by appellant for narcotics seized from xxxxxx. (7/22/99pm:59-62; 58). Adamany closed out the Property Book, ordered an inventory of the narcotics lockbox and other locations that might contain the drugs and associated paperwork, and initiated an investigation through Internal Affairs. (7/22/99pm:63-72). Records were introduced establishing that the drug paperwork and .76 grams of crack cocaine were turned in by appellant for processing on October 19, 1995.

The MPD Property Clerk, Lieutenant Debra Howard, testified that MPD General Orders require all property to be processed as soon as practicable and no later than the end of the seizing officer's tour of duty. (7/26/99pm:32-33). She also gave her expert opinion that, although there is no General Order addressing the subject, an officer is not authorized to amend the property classification on a PD-81 once it is signed by a lieutenant. (7/26/99pm:73, 88; 7/27/99am:20-25). In her opinion, the method specified in the General Orders for making corrections to the Property Book (making the change in red ink and initialing it) is not a permissible means of amending a PD-81 that has been signed by a lieutenant. (7/27/99am:18-19). Several officers testified to their understanding that they may not amend a PD-81 once it has been signed by a lieutenant.

At the close of the government's evidence, defense counsel moved for a judgment of acquittal on each of the counts of the indictment but the court concluded that there was sufficient evidence to support each count. (7/27/99pm:34-41). Defense counsel renewed the motion for judgment of acquittal at the close of all the evidence and the court again denied it, concluding that, viewing the evidence in the light most favorable to the government, "each count [has] sufficient evidence to go to the jury." (7/27/99pm:64).

SUMMARY OF ARGUMENT

The government's evidence was insufficient with respect to Counts 3, 9, and 14.

As to Count 3, the wire fraud conviction, the government failed to prove an interstate telephone call. There was no evidence that appellant was in Maryland, as charged in the indictment, when he received the subject telephone call from the District of Columbia. The fact that the call was received on a cellular telephone with a Maryland exchange was not sufficient. Even if a conviction could be based on the transmission of a wire signal across state lines where both parties are in the same state, the government put on no evidence that such a signal was sent to connect this particular call.

As to Count 9, the first-degree fraud conviction, the government failed to prove that the District was defrauded of property with a value of $250. The only evidence of value was evidence that zzzzzz's truck was worth $5100. But the District did not lose zzzzzz's truck because it was not the District's to lose. Nor did it lose the right to seek forfeiture of the truck. All it lost was possession of the truck during the pendency of any forfeiture proceeding and there was no proof that such possession was worth $250.

As to Count 14, the forgery conviction involving the PD-81 for the narcotics seized from zzzzzz's truck during the second search, the government failed to prove that the PD-81 was false. The government's theory that the drug paperwork was false to the extent it purported to be prepared on September 16, 1995, when it could not have been prepared before October 3, 1995, was valid only as to the DEA-7 and the PD-95 heatseal, which each stated that they were prepared on September 16, 1995. The PD-81, by contrast, did not contain any preparation date, and was therefore not shown to be false.

ARGUMENT

I. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF

THE INTERSTATE COMMERCE NEXUS REQUIRED FOR WIRE FRAUD.

A. Standard Of Review.

This Court reviews a trial court's denial of a motion for judgment of acquittal de novo. This Court does not defer to the district court, but rather must make its own independent judgment regarding the sufficiency of the evidence, viewing it in the light most favorable to the government. See Burks v. United States, 437 U.S. 1, 16-17 (1978); United States v. Johnson, 952 F.2d 1407, 1409 (D.C. Cir. 1992). This Court must reverse if, on the evidence presented, a reasonable mind could not find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

B. The Evidence That Appellant Received A Telephone Call From The District Of Columbia On A Cell Phone Carrying A Maryland Exchange Did Not Establish An Interstate Wire Communication When There Was No Evidence That Appellant Was Outside The District Of Columbia When He Received The Call.

The wire fraud statute, 18 U.S.C. § 3143, requires that the defendant, having devised a scheme defraud, "transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds" for the purpose of executing the scheme. Therefore, unlike the mail fraud statute, which simply requires the use of the interstate postal system regardless of whether the mailed item crosses state lines, 18 U.S.C. § 1341, the wire fraud statute "requires that the wire communication cross state lines." Smith v. Ayres, 845 F.2d 1360, 1366 (5^th Cir. 1988) (calls "made between telephones within the city of Dallas" could not form basis of wire fraud claim).

See also United States v. Freeman, 524 F.2d 337, 339 (7^th Cir. 1975) (wire fraud statute requires "an interstate telephone call"), cert. denied, 424 U.S. 920 (1976); Center Cadillac v. Bank Leumi Trust Co., 808 F. Supp. 213, 227 (S.D.N.Y. 1992) (mail fraud requires use of interstate mails or transmission facilities; "[w]ire fraud requires the additional element of a communication crossing state lines").

The indictment in this case charged that appellant:

knowingly and willfully transmitted or caused to be transmitted, by means of wire communications in interstate commerce, the telephone calls from and to the locations listed below:

COUNT DATE FROM TO

3 9/14/95 CLEMENT F. xxxxx WALLACE S. xxxxxx

District of Columbia Maryland

(Appx:30-31) (emphasis added).

But the government presented no evidence that appellant was "located" in Maryland (or anywhere outside the District of Columbia) when xxxxx called him from the District on September 14^th. Rather, the government's theory was that when xxxxx called appellant on the way to the precinct that day to arrange the pickup of zzzzzz's jewelry, xxxxx reached appellant on a cell phone bearing a Maryland phone number. Specifically, the parties had stipulated that, during September 1995, appellant "used a cellular phone bearing the telephone number (301) 538-9925." (7/21/99pm:58). See also 7/21/99pm:77 (appellant provided that cell phone number to attorney papering zzzzzz's drug case). The records for that number, Government Exhibit NW-1, showed an incoming call at 6:43 p.m. (Appx:49) and the government argued:

[O]n the 14^th, the day of the jewelry recovery, you know from the case and from the stipulations in the case this, that xxxxxx got released at 6:00. There was some talk at the courthouse and ultimately there was a drive up Georgia Avenue uptown to 4-D and that zzzzzz tells you that xxxxx called xxxxxx. xxxxxx was on a run. Now if xxxxxx is on a run, [h]e won't answer the vice phone, because the vice phone is in the office. At 6:43 on 9-14, you see that, 000-000-0000, that is an incoming cell phone call in the vicinity of the time that xxxxxx ⁽³⁾ tells [you that] a call was placed to xxxxxx's cell phone.

(7/28/99pm:58-59). Thus, the government's theory appeared to be that the call was an interstate call simply because it was received on a cell phone with a Maryland exchange. There was no evidence that the call involved any wire transmission across state lines, and the jury was simply instructed that appellant was charged with engaging in "interstate telephone calls" and that "[t]elephone calls occurring between the District of Columbia and Maryland constitut[e] interstate telephone calls under the law." (7/28/99pm:29).

Appellant has not found wire fraud cases directly on point. There are, however, some analogous murder-for-hire cases. In United States v. Paredes, 950 F. Supp. 584 (S.D.N.Y. 1996), the court held that a page placed in New York to the defendant, who was also located in New York, did not "use . . . any facility in interstate . . . commerce" as required for federal jurisdiction over a murder-for-hire charge under 18 U.S.C. § 1958, even though the beeper system emits an interstate signal each time it is used. "That the paging system had the capacity to find the beeper owner in another state is not determinative; what matters is the actual location of the parties at the time the paging system was used." Id. at 590.

In United States v. Weathers, 169 F.3d 336 (6th Cir.), cert. denied, 528 U.S. 838 (1999), the alleged use of a "facility in interstate commerce" were calls from Kentucky to a cellular telephone in Kentucky. The government in that case put on an expert witness from Bell South Mobility to explain how its cellular network operated and, specifically, the complex process by which a call would reach the defendant's cell phone. Id. at 339. "[F]ocus[ing] on the evidence regarding the technical aspects of the operation of Weathers's cellular telephone," in particular the testimony that a search signal from Kentucky would reach cell sites in Southern Indiana, the Sixth Circuit found a sufficient interstate nexus. Id. at 342. "Even though the signal that actually connected the two parties was ultimately intrastate, interstate activities were required to make that connection possible." Id. Here, there was no such evidence. Appellant's jury had no basis for finding that the particular call to appellant's cell phone would have involved the routing of wire signals to Maryland or any other state.

In United States v. Stevens, 842 F. Supp. 96 (S.D.N.Y. 1994), the court held that the defendant's use of a paging system in New York to reach a hit-man's intermediary in New York was a sufficient interstate commerce nexus under the same murder-for-hire statute where it was undisputed on a motion to dismiss that calls to the particular Metromedia beeper at issue "were routed to a transmitting station in New Jersey, which sent radio waves out across New York, New Jersey, and Connecticut." Id. at 97. Again, there was no such evidence of transmission of interstate wire signals here. Moreover, the Stevens court distinguished an interstate paging system from "an intrastate telephone call routed interstate" where "aside from the signal path, the call would be an essentially local act."

Absent evidence that appellant was in Maryland, as charged, when he received the call, or even that the call involved the routing of a wire signal across state lines, Count 3 must be dismissed.

II. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF

FIRST-DEGREE FRAUD OF PROPERTY WITH A VALUE OVER $250.

A. Standard Of Review.

As discussed in Point I, this Court reviews sufficiency of the evidence claims de novo under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

B. The Government's Only Evidence Of Value Went To

A Property Interest Different Than That Which

Appellant Caused The District of Columbia To Lose.

Under the District of Columbia fraud statute, a person commits first-degree fraud if he "engages in a scheme . . . with intent to defraud . . . and thereby obtains property of another or causes another to lose property." D.C. Code § 22-3821(a) (Addendum:4). If the government proves the further element that "the value of the property obtained or lost is $250 or more," the penalty includes up to 3 years in prison. D.C. Code § 22-3822(a)(1) (Addendum:5). The government charged Mr. xxxxxx with this enhanced form of first-degree fraud, and the jury was instructed on it. (Appx:31-32; 7/28/99pm:30-32). But, the government having failed to prove the $250 value element, Mr. xxxxxx's judgment should be amended to reflect conviction under the lesser included offense of first-degree fraud of property valued at less than $250, D.C. Code § 3822(a)(2), which provides for a prison sentence of not more than 180 days. (Addendum:5).

The government's only value evidence was that the truck itself had a Blue Book value of $5100. (7/27/99pm:16-23). Thus, the government argued in closing:

The Ninth Count is First Degree Fraud in the District of Columbia. It is not a federal offense, it requires essentially the same stuff as the other ones, except you don't need to find a phone call, just a systematic scheme of conduct to defraud, to defraud the District of Columbia out of their property. No phone call, but you need to find a value of $250. And who gave that to you[?] Gary Queen when he brought in the Blue Book, the retail value of that car at that time was $250? A lot more.

(7/28/99pm:74) (emphasis added).

But this theory that the District of Columbia lost the value of the truck was flawed because the truck was not the District of Columbia's to lose. As the indictment set forth, Mr. xxxxxx was charged with scheming to defraud the MPD and citizens of the District of Columbia "of their right to attempt to obtain the truck through forfeiture proceedings and maintain possession of it pending the conclusion of any such proceedings, thereby causing a loss of $250." (Appx:32)(emphasis added). ⁽⁴⁾ But because the release of the truck was discovered, the District of Columbia never lost the right to attempt to obtain the truck through forfeiture. ⁽⁵⁾ All the District lost when appellant released the truck to its owner was possession of the truck during the pendency of any forfeiture proceeding. There was no evidence that such possession was worth $250 - that it would have cost the District $250 to reseize the truck, or alternatively, that the District would have earned $250 in interest if the owner had opted to post a bond and contest the forfeiture. See 7/26/99pm:75-78 (expert Howard testifying Blue Book value used to determine bond required to avoid administrative forfeiture and force District to initiate civil forfeiture suit); 7/27/99pm:19 (AUSA reminding court that "10 percent bond" is derived from Blue Book value).

Absent any such evidence, the government merely proved that the District lost something of value as required for simple first-degree fraud. It did not prove that the value of that something was at least $250. Therefore, this Court should vacate appellant's conviction for first-degree fraud of property over $250 under D.C. Code §§ 22-3821(a), 3822(a)(1), and order that he be adjudged guilty of the lesser included offense of simple first-degree fraud under D.C. Code §§ 22-3821(a), 3822(a)(2), and resentenced accordingly.

III. THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE OF

FORGERY WITH RESPECT TO THE PD-81 PROPERTY RECORD

FOR THE DRUG EVIDENCE.

A. Standard Of Review.

As discussed in Point I, this Court reviews sufficiency of the evidence claims de novo under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

B. The PD-81 Was Not False.

Under the District of Columbia forgery statute, a person commits forgery "if that person makes . . . a forged written instrument with intent to defraud or injure another." D.C. Code § 22-3841(b). "A 'forged written instrument' means any written instrument that purports to be genuine but which is not because it:

(A) Has been falsely made, altered, signed, or endorsed;

(B) Contains a false addition or insertion; or

(C) Is a combination of parts of 2 or more genuine written instruments."

D.C. Code § 22-3841(a) (emphasis added). ⁽⁶⁾ Consistent with the statute and with Instruction No. 4.43 of the Criminal Jury Instructions for the District of Columbia (the "Red Book"), Mr. xxxxxx's jury was instructed that the first element of forgery is "that the Defendant falsely made, altered, signed or endorsed a written instrument; or made a false addition or insertion on a written instrument" and that "[t]o establish the first essential element of the offense, the Government need not prove that the whole written instrument was falsified or altered, but only that it contained some material misrepresentation of fact." (7/28/99pm:32-33) (emphasis added).

Mr. xxxxxx was charged with five counts of forgery involving five different instruments that he allegedly "falsely made and altered": the Property Book entry for zzzzzz's truck (Count 11); the PD-81 Property Record for zzzzzz's truck (Count 12); the DEA-7 for the drugs seized during the second search of zzzzzz's truck (Appx:56) (Count 13); the PD-81 Property Record for those drugs (Appx:52) (Count 14); and the PD-95 heatseal for those drugs (Appx:54) (Count 15). (Appx:33-35). Appellant contends that there was insufficient that the written instrument at issue in Count 14 - the PD-81 for the narcotics evidence - was false in any respect. The government's theory as to the drug paperwork was that since the DEA-7, PD-95 and PD-81 all cross-referenced the page number from the Property Book entry that was not made until October 3, 1995 (Appx:58), those documents could not have been completed until after that date. For example, the PD-95 purports to have been sealed on "9/16/95" at "16:00" (Appx:54), which the government argued was impossible because the heatseal contained the Property Book information that was not available until October 3, 1995, and could not have fit in the typewriter with the drugs sealed inside it. (7/78/99pm:75-76). Similarly, the DEA-7 indicates that it was "prepared" on "9/16/95." (Appx:57).

As to the PD-81, the government argued,

You have the 81. The 81 says it was recovered on the 16^th and says but you now look at the Property Book and the page number, again it doesn't mesh, it doesn't mesh. This document was done at least on the 3^rd of October.

(7/28/99pm:76). The problem with this argument is that unlike the DEA-7 and PD-95, which require not only the "date obtained" (DEA-7) or "date of offense" (PD-95), but also the "date prepared" (DEA-7) or date and time of sealing (PD-95), the PD-81 only purports to state the "date recovered." (Appx:52). See 7/26/99pm:28 (expert Howard testifying "date recovered" on PD-81 means "when the property was actually brought into the custody of the Police Department"). The PD-81 contains no indication of when it was prepared, other than to cross-reference the Property Book entry completed on October 3, 1995. ⁽⁷⁾ The PD-81's "recovered" date of "9/16/95" was in no way false, but rather was consistent with the government's own theory. See Appx:34 (Count 14 charges forgery of "a PD-81 Property Record relating to narcotics evidence seized from Gregory D. zzzzzz's truck on or about September 16, 1995").

For these reasons, the government failed to prove any forgery with respect to the PD-81 for the narcotics evidence and Count 14 must be dismissed.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxx must be vacated and the case remanded for dismissal of Counts 3 and 14, amendment of Count 9 to reflect conviction under D.C. Code §§ 3821(a), 3822(a)(2), and resentencing.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Wallace S. xxxxxx, II

CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Wallace xxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief for Appellant Wallace xxxxxx have been served by mail, and one copy of the accompanying Appendix has been served by hand, on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001 (Attention: Suzanne Curt), this 26^th day of December, 2000.

_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

1. "Appx: __" refers to pages of Appellant's Appendix filed with this brief. Transcript pages are cited by date, i.e., "7/28/99pm:46" refers to page 46 of the transcript for the afternoon of July 28, 1999.

2. xxxxxx testified that xxxxx knew the car was zzzzzz's but "[h]e twisted it around and said the car belonged to my father-in-law, and that's what he told xxxxxx." (7/20/99pm:58-59). zzzzzz had a child who was sick with cancer (7/22/99pm:54) but xxxxx denied knowing that or telling appellant that that was why the family needed the car back (7/26/99am:110).

3. xxxxx never testified that he called appellant's cell phone, as opposed to the precinct phone on which he had reached appellant when calling from the courthouse. Although xxxxx identified certain outgoing calls on appellant's cell phone records as having been made to numbers belonging to xxxxx, he was never asked whether the 6:43 incoming call was from him. (7/26/99am:54-57).

4. The indictment also alleged, and the jury was charged, that an object of the scheme was to defraud the MPD and the citizens of the District of Columbia "of their right to the honest and faithful services of their employee, defendant WALLACE S. xxxxxx, II, as a police officer of the MPD." (Appx:31-32). Although the D.C. Code defines "property" as "anything of value," including "services", D.C. Code § 22-3801(3), we question whether the District's interest in having services performed "honestly" is included in that definition. Cf. McNally v. United States, 483 U.S. 350 (1987) (pre-1988, federal mail fraud statute did not prohibit schemes to defraud citizens of intangible right to honest services of public officials). In any event, the government did not argue such a theory or present any evidence placing a value on such "honest services," other than the value of the truck itself, which was not the District's to lose.

5. Under the government's own evidence, it was not clear that this right to seek forfeiture was worth more than $250. See 7/26/99pm:79 (Property Clerk Howard testifying as expert that "I would not say that money is a motivating factor" in forfeitures because "I think there is more money spent in preparing for that than there is in the amount that we actually get back").

6. An enhanced penalty of up to 10 years imprisonment applies if the written instrument is "[a] public record, or instrument filed in a public office or with a public servant," D.C. Code § 22-3842(a)(3), or "[a] written instrument officially issued or created by a public office, public servant, or government instrumentality," D.C. Code § 22-3842(a)(4). Mr. xxxxxx's jury was instructed that it must find that each of the allegedly forged documents met, or appeared to meet, one of these definitions. (7/28/99pm:32-33).

7. Property Clerk Howard testified that the PD-81 is essentially a "mobile" version of the Property Book. (7/26/99pm:24). The Property Book contains a date of entry that cannot be falsified because it is entered chronologically between other dated entries.