Kevin F. McCoy

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxx

)

Plaintiff, )

) MOTION FOR NEW TRIAL

vs. )

)

xxxxxxxxxxxxxxxxxxx, )

)

Defendant. )

__________________________________________)

xxxxxxx asks this court to grant him a new trial. A new trial is appropriate because Mr. xxxxxxxxxx was improperly denied the right to be personally present at critical stages of his prosecution in violation of the Fifth and Sixth Amendments and in violation of Fed.R.Crim.P. 43.

This motion is submitted pursuant to Fed.R.Crim.P. 33, D.Ak.L.R. 7.1 and is based upon the Memorandum of Law filed herewith.

Dated at Anchorage, Alaska this 12^th day of November, 1998.

_____________________________

KEVIN F. McCOY

Assistant Federal Defender

I hereby certify that on the _____ day of

November, 1998, I hand delivered a copy of

MOTION FOR NEW TRIAL to: Crandon

Randell, Assistant U.S. Attorney, U.S.

Attorney's Office, 222 W. Seventh Avenue,

Anchorage, AK 99513.

_________________________________________

Lynn M. Wright

Kevin F. McCoy

Assistant Federal Public Defender

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF ALASKA

550 W. Seventh Avenue, Suite 1600

Anchorage, AK 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxx

)

Plaintiff, )

) MEMORANDUM OF LAW

vs. ) IN SUPPORT OF

) MOTION FOR NEW TRIAL

xxxxxxxxxxxxxxxxxx, )

)

Defendant. )

__________________________________________)

xxxxxxxx respectfully submits this Memorandum of Law in support of his request for a new trial in this matter.

I. Introduction.

On September 15, 1998, the grand jury returned a true bill to an indictment charging xxxxxxxxxx with conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846. Mr. xxxxxxx pleaded not guilty. The government invoked the presumptive detention provisions of 18 U.S.C. § 3142 and Mr. xxxxxxx remained incarcerated pending trial.

Mr. xxxx jury trial commenced on November 2, 1998. On the afternoon of November 3, 1998, in the presence of Mr. xxxxxxxxx, the court submitted the case to the jury for its decision. At 3:55 p.m. on November 4, 1998, the jury sent out a note dated and signed by the jury foreperson which read as follows:

NOTE FROM THE JURY

We have questions on the following parts to the jury instructions:

1) 14 - first paragraph - xxxxxxx and xxxxxxxxxx and both have to conspire together at the same time[?]

2) 17 - 3^rd paragraph - does further distribution include distributing to the government informant[?]

3) give us an example ("inference").

The court consulted with counsel off record by telephone and at 4:35 p.m. responded to the Jury's question with Supplemental Jury Instruction No. A. This supplemental instruction provided as follows:

MEMBERS OF THE JURY

I have your note bearing the time 3:55 p.m., November 4, 1998. I have discussed this note with counsel.

Counsel agree that I provide you the following answer.

With respect to your question No. 1, you should refer to Instruction No. 16.

With respect to your question No.2, the answer is no.

With respect to your question No. 3, please refer to Instruction No. 6.

See Docket No. 58.

The jury resumed deliberations on November 5, 1998. At 11:05 a.m. on November 5th, the jury sent out a second note dated and signed by the jury foreperson. This note read:

NOTE FROM THE JURY

Regards to instruction # 17, 3^rd paragraph, can Stacey (the informant) be considered the buyer that the 2 alleged co-conspirators sold to[?]

Can the government informant be considered the recipient (not co-conspirator) to further distribute drugs - or - do we have to have further evidence of distribution to other parties, even if these parties really don't exist[?]

The court again consulted with counsel off record by telephone and at 11:30 a.m. responded to the jury's second note with Supplemental Instruction No. B. This supplemental instruction provided as follows:

MEMBERS OF THE JURY

I have your note bearing the time 11:30 a.m., November 5, 1998. I have discussed this note with counsel.

Counsel agree that I provide you with the following answer.

With respect to your first question, your question asks me to comment on the evidence. I cannot do that.

With respect to your second question, the government does not have to prove a violation of 21 U.S.C. § 841(a)(1) actually took place.

See Docket No. 59.

The discussion of each of these jury questions and each of these proposed answers took place off record in the absence of Mr. xxxxxxx. Shortly after the last question was answered, the jury notified the court that it had reached a verdict. At 1:12 p.m. on November 5, 1998, the court reconvened for the first time since giving the matter to the jury for its decision. In the presence of Mr. xxxxxxx, the jury's guilty verdict was published.

The matter is now before the court on Mr. xxxxxxx's motion for a new trial because he was deprived of his right to be personally present at a critical stage of the prosecution, namely the formulation of the answers given to each of the jury's questions in violation of the Fifth and Sixth Amendments and in violation of Fed.R.Crim.P. 43.

II. Jose xxxxxxx Has A Fundamental Right Of Personal Presence At All Critical Stages Of The Prosecution And Includes The Right To Personal Presence Whenever The Court Communicates With The Jury.

The right of the accused charged with a felony to be personally present in the courtroom at every stage of his trial is fundamental to the American system of justice. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed.2d 1011 (1892). This fundamental right of personal presence is implemented by Fed.R.Crim.P. 43. This rule provides in the pertinent part:

(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at imposition of sentence[.]

Fed.R.CrimP. 43 and the Fifth and Sixth Amendments guarantee the right of the accused to be personally present whenever the court communicates with the jury. Rogers v. United States, 422 U.S. 35,38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975); Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 479, 71 L.Ed. 787 (1927).

The right to be present at all critical stages of the proceeding is personal to the accused and cannot be waived by counsel. Campbell v. Blodgett, 978 F.2d 1502, 1509 (9^th Cir. 1992). In Bustamante v. Eyman, 456 F.2d 269 (9^th Cir. 1972), the court explained the rationale for precluding waivers of personal presence by counsel.

It cannot be argued that appellant's absence was per se harmless because his counsel was at all times present to guard his interests. In the first place, whether counsel who attempts without the defendant's knowledge to waive his right to be personally present can be trusted to protect a defendant's other rights is a dubious assumption. More importantly, the presence of counsel is no substitute for the presence of the defendant himself. The right to be present at trial stems in part from the fact that by his physical presence the defendant can hear and see the proceedings, can be seen by the jury, and can participate in the presentation of his rights. But the right also rests in society's interests in due process. As stated in Hopt [v. Utah], 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 1884)], "[t]he public has an interest in [the defendant's] life and liberty. Neither can be lawfully taken except in a mode prescribed by law". The defendant's right to be present at all proceedings of the tribunal which may date his life or liberty is designed to safeguard the public's interest in a fair and orderly judicial system.

Id. at 274 (Footnote Omitted).

Mr. xxxxxx never waived his right to be personally present at critical stages of his prosecution and the communications with his jury violated the Fifth and Sixth Amendments and violated Fed.R.Crim.P. 43.

III. The Decision To Respond To the Jury Questions In This Case Without Mr. xxxxxxx Was Not Harmless And Affected His Substantial Rights.

Communication with a jury in the absence of the accused is an error which requires a new trial unless the error is determined to be harmless beyond a reasonable doubt analysis. Rushen v. Spain, 464 U.S. at 120, 104 S.Ct. at 456; Chapman v. California, 386 U.S. 18, 20-21, 87 S.Ct. 824, 826, 17 S.Ct. 705 (1967). Mr. xxxxxxxx respectfully submits that a number of the proffered responses to the jury questions in this case were mistaken and require a new trial.

A. "Do xxxxxx And xxxxx Both Have To Conspire Together At The Same Time?"

The first jury note referenced Instruction Number 14 and asked whether xxxxxxx and McFarland both had to conspire at the same time. The court responded to this inquiry with the consent of counsel, but outside the presence of Mr. xxxxxxx, by referring the jury to instruction number 16. Mr. xxxxxxx respectfully submits that this answer was not responsive to the jury note and may have misled the jury in its deliberations.

The essence of the crime of conspiracy is "a meeting of the minds" among the conspirators to accomplish an illegal objective. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Where two defendants act in concert to achieve different goals, the government has not shown a meeting of the minds as to a common scheme or plan. United States v. Lorenzo, 995 F.2d 1448, 1459 (9^th Cir. 1992). For these reasons, the proper response to this inquiry was that the crime of conspiracy requires a meeting of the minds to accomplish an illegal objective and that requires at some point in time between May 23, 1998 and August 20, 1998 a mutual agreement to achieve the same objective. This is another way of saying that defendants guilty of conspiracy must, at some point, conspire at the same time.

Because the response given was not responsive and may have misled the jury in its deliberations, a new trial is required.

B. "Can The 'Further Distribution' Referenced In The Third Paragraph Of Instruction No. 17 Include Distribution To A Government Informant?"

The first jury note referenced the third paragraph of Instruction No. 17. This paragraph reads as follows:

Finally, mere proof that a defendant sold cocaine base to another person knowing that this person would later distribute this cocaine base to others does not establish the existence of a conspiracy. Rather, the plaintiff must prove that the defendant and his buyer had an agreement to further distribute the cocaine base.

The note asked whether "further distribution"could include distribution to the government informant. The court responded to the question with the consent of counsel, but outside the presence of Mr. xxxxxxx, by indicating that the further distribution could not include the government informant.

Mr. xxxxxxx respectfully submits that this answer is mistaken. The correct answer should be yes. Again, the essence of the crime of conspiracy is an agreement to violate the law. United States v. Lennick, 18 F.3d 814, 819 (9^th Cir. 1994). The third paragraph of Instruction No. 17 correctly instructs the jury that if one person sells crack cocaine to another person knowing that other person will sell the substance to a third person, this does not by itself establish a conspiracy. It does not matter who the third person is. Rather, the central question is whether an agreement existed between the first two persons.

Because the answer provided to this question was inaccurate and may have misled the jury, a new trial is required.

C. "Can The Government Informant Be Considered The Recipient Of Drugs Or Must The Government Prove Further Distribution To Other Parties Even If These Other Parties Do Not Exist?

The second note from the jury included a question which asked whether the government informant could be considered the recipient of drugs or did the government have to prove further distribution to other parties, even if those other parties did not exist. The court responded to the question with the consent of counsel, but outside the presence of Mr. xxxxxxx, by indicating that the government did not have to prove a violation of 21 U.S.C. § 841(a)(1).

Mr. xxxxxxx respectfully submits that this answer was not responsive to the jury's question. Additionally, he respectfully suggests that the answer given was mistaken. Again, the essence of conspiracy is an agreement by two persons to accomplish an illegal object. United States v. Lennick, 18 F.3d at 819. Thus, if two persons agree to violate a drug law, the crime of conspiracy is complete. A government informant can in fact be considered the recipient of the drugs because the crime is not determined by who received the drugs but by whether there was a meeting of the minds of the alleged co-conspirators.

Because this answer provided to this question was inaccurate and may have misled the jury, a new trial is required.

IV. Conclusion.

Mr. xxxxxxx respectfully asks this court for a new trial. He is entitled to a new trial because his right to be personally present when the court responded to questions from the jury was violated. The error he alleges is not harmless beyond a reasonable doubt and impacted on his substantial rights. For all these reasons, a new trial is appropriate.

Dated at Anchorage, Alaska this 12^th day of November 1998.

_____________________________

KEVIN F. McCOY

Assistant Federal Defender

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