UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
)
v. ) Crim. No. 96-0319 (NHJ)
)
xxxxxxxx, )
xxxxxxxxxx, )
xxxxxxxxxx, )
)
Defendants.
DEFENDANT xxxxxxxxxxx'S RESPONSE TO
GOVERNMENT'S NOTICE OF INTENTION TO INTRODUCE
EVIDENCE PURSUANT TO FED. R. EVID. 404(b)
Defendant xxxxxxxxx, through undersigned counsel,
respectfully responds to the government's notice of intention to introduce evidence of uncharged offenses, pursuant to Fed. R. Evid. 404(b), at the trial of this case.
1. On December 23, 1996, in a letter from counsel for the government to all defense counsel, the government stated its intention to introduce at the trial of this case evidence "that [defendants xxxx and xxxxx] distributed drugs, and that [defendant] xxx used drugs." The government specified that "[t]hat evidence would include the drugs, cash, guns and other drug distribution paraphernalia found during the search of 30 New York Avenue, as well as testimony that xxxxxxxxxx and xxxxxxxx distributed drugs. Such evidence would also include the drugs and drug paraphernalia found on Judd on 4/4/96 and at the time of his arrest, as well as admissions as to his drug useage, testimony by others as to his drug useage, and his attempts to purchase drugs from the xxxxxx." According to the government, the foregoing evidence would be relevant to show that "the motive for xxxxxxx's participation in the conspiracy to kill Leroy Copeland was his expectation of being provided heroin and cocaine by xxxx or xxxxx for xxxx's assistance in locating and identifying Copeland."
2. Defendant xxxxxxxx contests the admission of the proposed evidence on two grounds. First, the evidence is not relevant to any issue which the jury will have to resolve in deciding the guilt or innocence of the defendants in this case.
Therefore, pursuant to Fed. R. Evid. 401 and 404(b), the proposed other-crimes evidence is inadmissible. Second, even if the evidence had some limited probative value, the probative value would be outweighed by its enormous prejudicial impact, and therefore the evidence is inadmissible under Fed. R. Evid. 403.
3. Although the government has not stated how it intends to introduce evidence that xxxxxxx motive to involve himself in the conspiracy to murder Leroy Copeland was his expectation that the xxxxxx's would reward him with drugs, the most obvious possibilities are as follows. The government could call witnesses who overheard xxx make statements to the effect that he cooperated in the conspiracy in order to obtain drugs from the xxxxxx. Such statements by Judd might be admissible if was on trial alone. But such admissions are hearsay statements which inculpate xxxxxxx, and introduction of the statements at a joint trial would violate Mr. xxxx's Sixth Amendment right to confront and cross-examine witnesses against him. See, defendant xxxx's Motion to Sever Defendants, filed November 13, 1996, and defendant xxxxx's Reply to Government's Response to . . . Motion to Sever Defendants (hereafter, "Reply"), filed December 10, 1996, the arguments in which are incorporated herein by reference. For the reasons set forth in those pleadings, the statements are inadmissible in a joint trial. The goverment's efforts to bring such statements within the co-conspirator exception of Fed. R. Evid. 801(d)(2)(E) are unavailing, for the reasons set forth in defendant xxxxxx's Reply.
4. Another possibility is that the government intends to introduce the proposed other-crimes evidence, and ask the jury to infer that because xxxx was a drug user, and because the xxxxxx are drug dealers(1) , this was xxxd's motive. However, the fallacy in that approach is that the requested inference does not flow from the proven facts. Even if it is true that the xxxxxx were drug dealers, there is no reason to assume that xxxxxxxx had any expectation of being rewarded with drugs if he cooperated in this conspiracy. Equally speculative motives are fear, friendship, or an independent bias against Mr. Copeland. As this circuit recently noted, in United States v. Teffera, 985 F.2d 1082 (D. C. Cir. 1995), "[a] jury is entitled to draw a vast range of reasonable inferences from evidence, but may not base a verdict on mere speculation," (citing United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.), cert. denied, 498 U.S. 948 (1990)). Given the wholly speculative nature of the "inference" which the government would ask the jury to draw, the other-crimes evidence is irrelevant and should not be admitted.
5. Moreover, the proposed other-crimes evidence is highly prejudicial. This circuit has repeatedly recognized the inflammatory nature of other-crimes evidence. See, e.g., United States v. Shelton, 628 F.2d 54, 56 (D.C. Cir. 1980); United States v. Daniels, 770 F.2d 1111, 1117-18 (D.C. Cir. 1985); United States v. Dockery, 955 F.2d 50, 53 (D.C. Cir. 1992);
United States v. Brawner, 32 F.3d 602, 603 (D.C. Cir. 1994).
Prejudice is of special concern where the uncharged crimes involve drugs and weapons. The prejudice inherent in that type of evidence is compounded when the defendants are already on trial for a crime of violence.
6. Additionally, there are grave constitutional concerns raised by the government's attempt to rely on the inference that Judd's motive in this alleged conspiracy was to get drugs from the xxxxxx. Over twenty-five years ago, this circuit addressed the question of when an inference may be the basis for a criminal conviction. In United States v. Johnson, 433 F.2d 1160, 1167-68 (D.C. Cir. 1970), the defendant challenged his convictions for larceny of an automobile and an automobile engine, based upon an inference from recent possession of the stolen property. Johnson claimed that the inference was unconstitutional, depriving him of due process of law because of an insufficient connection between the proven fact and the presumed fact. In denying Johnson's claim, the court reviewed the law with regard to the permissibility of inferences in criminal cases. The court concluded that
"`. . . a common law rule authorizing a guilty inference
. . . must be regarded as `irrational' or `arbitrary,'
and hence unconstitutional, unless it can at least be
said with substantial assurance that the presumed fact
is more likely than not to flow from the proved fact
on which it is made to depend.' Beyond that, and
because proof beyond a reasonable doubt is itself
an indispensable ingredient of due process in
criminal cases, a rule of inference `which passes
muster when so judged [by the more-likely-than-not
standard] must also satisfy the criminal `reasonable
doubt' standard if proof of the crime charged or
an essential element thereof depends upon its use.'
This latter, in such circumstances, imposes in turn
the requirement that the inference authorized,
standing alone, possess such potency that a jury
could prudently accept it as proof of guilt to
a moral certainty."
Id. at 1168 (citations omitted).
Three years later, in Barnes v. United States, 412 U.S. 837, 847 (l973), the Supreme Court adopted exactly the same requirement for use of the inference from possession of recently stolen property in a case where the defendant was charged with possession of United States Treasury checks which had been stolen from the mail. See also United States v. Carter, 522 F.2d 666, 679 (D.C. Cir. 1975) (for an inference to be valid under established principles of criminal law, the presumed fact must, beyond a reasonable doubt, flow from the proved facts on which the inference depends).
In the instant case, if the government is attempting to rely upon an inference to prove motive, that attempt must fail, because the government, the proponent of the evidence, cannot show that the inferred facts, xxxxxx's expectation that he would be rewarded with drugs if he participated in the alleged conspiracy, flow beyond a reasonable doubt from the proved facts. Therefore, the inference the government would seek to have the jury draw is constitutionally impermissible.
For these reasons, and any others that may appear at a hearing on the government's request to admit other-crimes evidence, defendant xxxxxxxxxxx respectfully requests that the government's request be denied.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
___________________________
Reita Pendry
David Howard
Assistant Federal Defenders
Counsel for xxxxxxxxxx
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. This same evidence which the government proposes to introduce at the trial of the instant case is the subject of an indictment in United States v. xxxxxxxx, 96-157, also pending before this court. The allegations in that indictment will be vigorously contested when that case comes to trial. Likewise, those allegations are denied by defendant xxxxxx here. However, for purposes of argument,we entertain the prospect that the government can prove that xxxxx was connected to the contraband found in the premises at xx New York Avenue when a search was conducted.