ORAL ARGUMENT HAS BEEN SCHEDULED FOR FEBRUARY 1, 1995
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
xxxxxxx xxxxxxx, III, et al.,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FINAL JOINT BRIEF FOR APPELLANTS
JENSEN E. BARBER, ESQ.
400 Seventh Street, NW #400
Washington, DC 20004
Counsel for Emanuel W. Sutton
JOSEPH R. CONTE, ESQ.
601 Pennsylvania Avenue, NW
Washington, DC 20004
Counsel for Jerry R. Millington
DANIEL E. ELLENBOGEN, ESQ.
717 D Street, NW #400
Washington, DC 20004
Counsel for xxxxxxx xxxxxxx, III
ELISE HALDANE, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for James Antonio Jones
Federal Public Defender
NEIL JAFFEE, ESQ.
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D.C. 20004
Counsel for Keith E. Cooper
STEVEN R. KIERSH, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Melvin D. Butler
* ADDITIONAL COUNSEL ARE LISTED ON REVERSE SIDE
LEONARD L. LONG, ESQ.
1818 11th Street, NW #100
Washington, DC 20007
Counsel for John Monford
LEROY NESBITT, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for Tony Lewis
G. GODWIN OYEWOLE, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Bernice H. McCraw
ROBERT E. SANDERS, ESQ.
7125 16th Street, NW
Washington, DC 20012
Counsel for Armaretta B. Perry
DAVID B. SMITH, ESQ.
526 King Street #213
Alexandria, VA 22314
Counsel for David W. McCraw
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 the lead defendant, xxxxxxx xxxxxxx, III, was convicted of engaging in a continuing criminal enterprise involving drug trafficking and he, as well as his ten co-defendants, were convicted of conspiring to distribute and possess with the intent to distribute large quantities of cocaine and cocaine base and related offenses occurring over approximately a four-year period.
The names of the parties in the trial below are:
Plaintiff-Appellee: United States of America.
Defendants-Appellants: xxxxxxx xxxxxxx, III, Tony Lewis, James Antonio Jones, a/k/a Tonio, Jerry Millington, Keith Cooper, a/k/a Cheese, David McGraw, Melvin Butler, Bernice Hillman McGraw, a/k/a Niecy, John Monford, a/k/a Johnny, Armaretta B. Perry, and Emanuel Sutton, a/k/a Mangie. There are no amici.
II.RULINGS UNDER REVIEW:
This is an appeal from judgments of the district court (Honorable Charles R. Richey), adjudging appellants guilty after a trial on CCE, drug conspiracy, and related charges. In this appeal, appellants seek review of the district court's rulings denying their motions for change of venue (July 13 and September 9, 1989) and to suppress wiretap evidence (August 28, 1989), and ordering that the jury be anonymous and sequestered (August 25, 1989). None of these rulings has been reported. In addition, appellants seek review of the trial judge's apparent and actual bias against the defense, which occurred throughout the proceedings, as well as his numerous rulings sanctioning non-disclosure by the prosecution of discoverable evidence and materials and restricting cross-examination of key government witnesses. Once again, none of the district court's rulings upon which the arguments relating to bias, discovery violations, and cross-examination restrictions are based, has been reported.
The appeals of nine criminal defendants who were jointly indicted with the appellants in this case but tried separately are pending before this court, as follows:
No. 90-3222United States v. Willie Childress
No. 90-3223United States v. Columbus Daniels
No. 90-3224United States v. Rachelle xxxxxxx
No. 90-3225United States v. Robert Hardy
No. 90-3226United States v. Ronald Morgan
No. 90-3227United States v. Constance Perry
No. 90-3228United States v. Melvin Stewart
No. 90-3229United States v. Jeffrey Thompson
No. 90-3230United States v. Raynice Thompson
The Court has ordered that these appeals be consolidated but has not yet set a briefing schedule.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
xxxxxxx xxxxxxx, III, et al.,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOINT BRIEF FOR APPELLANTS
1. Whether the trial court's use of an anonymous jury was an abuse of discretion where there was no showing of the defendants' ability or predilection to improperly influence the jury, where the court failed to make any factual findings or to consider less drastic alternatives, and where the court's explanation to the jury of its anonymity heightened the prejudice to the defendants.
2. Whether the court abused its discretion in denying the defendants' motion for change of venue without a hearing and in conducting an unfair jury selection process where the case involved inflammatory pretrial publicity which was instigated by the government.
3. Whether the cumulative effect of the trial judge's critical comments, hostile manner, intimidating tactics, unwarranted contempt findings, and unequal treatment of the defense and prosecution adversely influenced the jury and deprived defendants of their constitutionally protected right to a fair and impartial trial.
4. Whether the combined effect of restrictions on cross-examination of key prosecution witnesses and non-disclosure of discoverable evidence deprived defendants of their rights to confrontation and due process of law.
5. Whether the court erred in denying without a full hearing defendants' motion to suppress wiretap evidence where the supporting affidavit omitted a full and complete statement of other investigative procedures tried, the government failed to prove that the interceptions were necessary, and the authority of the specially designated assistant attorney general who authorized the filing of the application lapsed because of a change in attorney general.
6. Whether the individual errors at trial, taken together, combined to deprive defendants of a fundamentally fair trial.
STATUTES AND REGULATIONS
Pertinent statutes and rules are set forth in the addendum to this joint brief.
This court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of final judgments in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.
STATEMENT OF THE CASE
(i) Course of Proceedings and Disposition Below
On or about May 15, 1989, a federal grand jury returned a thirty-nine count indictment charging xxxxxxx xxxxxxx, III and twenty-eight codefendants with various violations of the federal drug statutes and related charges, including operation of a continuing criminal enterprise by xxxxxxx and several armed offenses by xxxxxxx and three other defendants. Prior to trial, the district court (Honorable Charles R. Richey) ordered a severance of defendants and counts. The final retyped indictment, which charged the eleven defendants in this case in twenty-three counts, included the CCE violation, drug conspiracy (all defendants), substantive drug offenses, and criminal forfeiture of certain real and personal property.
Trial commenced before the district court and the first anonymous jury empaneled in the District of Columbia. The anonymous jurors were also sequestered throughout the trial and deliberations. On December 6, 1989, the jury returned verdicts finding all defendants guilty on all counts but one (Jones was acquitted of the substantive drug offense in Count Four). The individual verdicts and sentences were as follows:
xxxxxxx xxxxxxx III. Count One -- Guilty of engaging in a continuing criminal enterprise, 21 U.S.C. §§ 848, 853. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Five -- Guilty of unlawfully employing a person under Eighteen years of age, 21 U.S.C § 845b. Count Eleven -- Guilty of interstate travel in aid of racketeering, 18 U.S.C. § 1952(a)(2). Counts Fourteen, Fifteen, Sixteen, Eighteen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 17, 1990, the district court imposed sentences of mandatory life without parole on Count One, life without parole on Counts Two and Five, 60 months (concurrent) on Count Eleven, and 48 months (concurrent) on Counts Fourteen, Fifteen, Sixteen, and Eighteen.
Melvin Butler. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Fifteen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 4, 1990, the court sentenced Mr. Butler to 405 months on Count Two, and 48 months on Count Fifteen (concurrent).
Emanuel W. Sutton. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Twenty -- Guilty of distribution of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 18 U.S.C. § 2. Count Twenty-one -- Guilty of unlawfully employing a person under Eighteen years of age, 21 U.S.C. § 845b.
On September 6, 1990, the court sentenced Mr. Sutton to 320 months on Counts Two and Twenty-one, and 240 months on Count Twenty (concurrent).
James Antonio Jones. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Four -- Not guilty of possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a) and (b)(1)(C).
On September 5, 1990, the court imposed a sentence of life without parole on Count Two.
Jerry Millington. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Thirteen -- Guilty of interstate travel in aid of racketeering, 18 U.S.C. § 1952(a)(2).
On September 5, 1990, the court sentenced Mr. Millington to 405 months on Count Two, and 60 months on Count Thirteen (concurrent).
Tony Lewis. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Eleven -- Guilty of interstate travel in aid of racketeering, 18 U.S.C.
§ 1952 (a)(2). Counts Sixteen, Eighteen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 6, 1990, the court imposed a sentence of life without parole on Count Two, five years each on Count Eleven, and four years on Counts Sixteen and Eighteen (all concurrent).
Keith E. Cooper. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Six -- Guilty of distributing cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 18 U.S.C. § 2. Count Seven -- Guilty of unlawfully employing a person under 18 years of age, 21 U.S.C. § 845b. Count Eight--Guilty of distributing a quantity of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Count Nine -- Guilty of possessing with intent to distribute 50 or more grame of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Count Ten -- Guilty of unlawfully employing a person under 18 years of age, 21 U.S.C. § 845b.
On September 6, 1990, the court sentenced Mr. Cooper to 320 months on Counts Two, Seven, Nine and Ten, and 240 months on Counts Six and Eight (all concurrent).
Bernice Hillman McCraw. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Seventeen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 4, 1990, the court sentenced Ms. McCraw to 235 months on Count Two and 48 months on Count Seventeen (concurrent).
David McCraw. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Nineteen -- Guilty of distribution of 500 or more grams of cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)(II).
On September 4, 1990, the court sentenced Mr. McCraw to 292 months on Counts Two and Nineteen (concurrent).
John Monford. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846.
On September 5, 1990, the court sentenced Mr. Monford to 405 months on Count Two.
Armaretta Perry. Count Two -- Conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, 21 U.S.C. § 846. Count Three -- Guilty of maintaining a premises for an unlawful purpose, 21 U.S.C. § 856. Count Seventeen -- Guilty of unlawful use of a communications facility, 21 U.S.C. § 843(b).
On September 4, 1990, the court sentenced Ms. Perry to 405 months on Count Two, 240 months on Count Three and 48 months on Count Seventeen (all concurrent).
In addition, the jury found a basis for the forfeiture of real property located at 1009 Peconic Place, Upper Marlboro, Maryland, 14518 London Lane, Bowie, Maryland, a 1986 Chevrolet Corvette, and assorted personal property.
All defendants filed timely notices of appeal. Their appeals were consolidated pursuant to this court's order.
(ii) Statement of Facts
The defendants were charged in a superseding indictment with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841 (a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(iii), and as well as related drug offenses. Four of the original defendants (three of whom were tried in this case) were charged with homicide and related offenses. The lead defendant, xxxxxxx xxxxxxx III, was charged with engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. §§ 848, 853.
In orders dated August 4 and August 7, 1989, the district court severed the case by defendants and counts. Eleven defendants were tried in this case; all homicide and related charges were severed.
Overwhelming publicity accompanied the arrests, pretrial proceedings and trial of the case. Defendants' written motions for a change of venue were denied on July 13, 1989 and September 9, 1989. The defendants' renewed oral motions for a change of venue were denied during jury selection.
On August 25, 1989, the court ordered, sua sponte, that the jury would be anonymous and sequestered throughout the trial.
At the trial, which began on September 18, 1989, the government introduced evidence to document its theory that xxxxxxx xxxxxxx III was the kingpin of a sophisticated drug distribution network whose members consisted of his family and friends. According to that evidence, Californian Melvin Butler arranged for cocaine to be delivered to Washington, D.C. (11/1/89 Tr. 209-231) in exchange for cash which was delivered to him in Los Angeles by courier. (10/20/89 Tr. 20-24, 49-51; 11/9/89 Tr. 42-47) Witnesses testified that Tony Lewis joined xxxxxxx on trips to California and in sending cash across the continent. (10/20/89 Tr. 36-38; 10/27/89 Tr. (p.m.) 140-144; 11/2/89 Tr. 11-12)
According to the testimony of cooperating witnesses, the cocaine arrived from in the D.C. area by courier, where it was picked up by xxxxxxx brother-in-law David McCraw and others. (11/1/89 Tr. 216-217) The drugs were stored at various locations, including the home of brother-in-law Jerry Millington. (10/3/89 Tr. (p.m.) 40-41) Family members David McCraw, Bernice Hillman McCraw and Armaretta Perry packaged the cocaine into retail units. (9/29/89 Tr. 79-80, 82, 112-113; 10/16/89 Tr. 124, 170; 10/24/89 Tr. 22)
According to the cooperating individuals and police officers who made observations, the packaged cocaine was then taken to the "Strip"--a two-block area located on Morton and Orleans Streets in northeast Washington, D.C. Street sellers and supervisors included Keith Cooper, Emanuel Sutton, John Monford, James Antonio Jones and Jerry Millington. (9/20/89 Tr. 46-48, 56-57, 64; 9/21/89 Tr. 119, 161-163, 168-169; 9/22/89 Tr. 52-55, 159, 162-163; 9/25/89 Tr. 82, 84; 9/27/89 Tr. 32-33; 10/3/89 Tr. (p.m.) 45-46, 50, 62; 10/4/89 Tr. 63-64; 10/16/89 Tr. 133-134, 139-140)
To prove its case, the government relied upon the contents of court-ordered wiretaps, police observations and undercover purchases, executed search warrants, tax returns of certain defendants and the testimony of a number of informants who ranged from addicted cocaine purchasers to the prosecution's "star witness," Alta Rae Zanville, who acted as a general factotum to the xxxxxxx family until her arrest on unrelated cocaine distribution charges in December, 1988. Following her arrest, she continued her activities, but consented to the taping of her conversations with xxxxxxx xxxxxxx and his associates. (10/19/89 Tr. 140-147; 10/20/89 Tr. 16-19, 26-27, 36-38, 49-51, 56-59, 72, 82-86) James Mathis and Royal Brooks, self-styled transcontinental drug couriers who became government witnesses, described cross-country trips between Washington, D.C. and the transfer of large sums of money for multi- kilogram quantities of cocaine (11/1/89 Tr. 209-235, 11/9/89 Tr. 4-7, 40-66, 87-94) James Minor, a childhood friend of David McCraw, described deliveries of cocaine and drug transactions on the "Strip." (9/29/89 Tr. 96-98, 105-106; 10/16/89 Tr. 101-104, 131-132, 158-159)
SUMMARY OF ARGUMENT
Defendants' trial was a progression of errors, each error damaging standing alone, but lethal as a whole. The defendants had been targets of adverse media publicity throughout the five-month period between their arrest and the commencement of trial. The print and media publicity contained references to extensive drug dealing and violent activity by the "xxxxxxx organization." The media coverage, much of which was engineered by the prosecution, was so pervasive that it was improbable that any prospective juror could have been untouched by it. Knowing this, the trial judge should have granted a change of venue to a district which was not saturated with prejudicial pretrial publicity.
Instead, the district court, in the absence of any evidence of possible jury tampering or corruption and without conducting a hearing or making any findings, impaneled the first anonymous jury ever to sit in the District of Columbia. To make matters worse, the trial was presided over by a judge who consistently favored the prosecution in his rulings while criticizing, disparaging, and threatening defense counsel, both in the presence and absence of the jury. Compounding this, the trial court permitted the government to ignore its obligation to disclose certain evidence and other materials and restricted cross-examination of key prosecution witnesses. Moreover, the court erroneously admitted into evidence recordings of telephone conversations which were illegally intercepted by the government. Finally, the aggregate and cumulative impact of the various errors summarized above denied defendants the fundamentally fair trial to which they are entitled. Therefore, their convictions should be reversed.
THE TRIAL COURT'S USE OF AN ANONYMOUS JURY WAS AN ABUSE OF DISCRETION WHERE THERE WAS NO SHOWING OF THE DEFENDANTS' ABILITY OR PREDILECTION TO IMPROPERLY INFLUENCE THE JURY, WHERE THE COURT FAILED TO MAKE ANY FACTUAL FINDINGS OR TO CONSIDER LESS DRASTIC ALTERNATIVES, AND WHERE THE COURT'S EXPLANATION TO THE JURY OF ITS ANONYMITY HEIGHTENED THE PREJUDICE TO THE DEFENDANTS.
Shortly after the defendants' motions for a change of venue were denied without a hearing on July 13, 1989, the government filed a "Motion for Protective Order and Sealing of Portions of the Juror Questionnaire." [A. I. 203-209] The motion requested that the court seal portions of the juror questionnaire and order that defense counsel not share any identifying information in the juror questionnaires with their clients. The court granted the government's motion on the same date. [A. I. 210]
On July 26, 1989, the defendants filed a motion to reconsider the court's order of July 17, 1989. [A. I. 211] At the hearing on the motion, the government made known its position on the need for an anonymous jury:
MR. ANDARY: We would submit there is only one alternative to the procedure we are asking for and that is sequestration and we think this is a much fairer alternative.
THE COURT: The alternative to what you are seeking is try the case before an anonymous jury, which is being done right now in New York in the federal court.
MR. ANDARY: That is another alternative.
THE COURT: It has been done, and it is being done in the Eastern and Southern District, so- called "mother" court.
MR. ANDARY: That, we would submit, that is not necessary if we take simple precautions. (8/9/89 Tr. 745) (emphasis added)
The court concluded the hearing without further comment on the issue. (8/9/89 Tr. 755)
On August 25, 1989, the court ordered, sua sponte, that the jury would be sequestered and anonymous. A memorandum opinion citing precedents for use of anonymous juries followed on August 30, 1989. [A. I. 252-254] Defense objections to the anonymous jury were ignored by the court. (9/11/89 Tr. 1892-93)
When the prospective jurors arrived to fill out the juror questionnaires, they were advised that pursuant to "a common practice followed in many cases in the Federal court," their names and identities were being kept in confidence. [A. I. 251-261] The media soon exposed this fiction. On the second day of jury selection, a prospective juror stated
PROSPECTIVE JUROR: I have heard that this is like a precedent, not having everyone's name, this is the first time they ever used numbers. . . . I saw that on TV.
(9/12/89 Tr. 2100)
During jury selection, two prospective jurors wrote notes to the court regarding their concerns about anonymity. [A. IV. 283-284] Another wrote that s/he could not be fair in the presence of "such tight security and what that security, in my mind, stands for." [A. IV. 282]
A. Standard of Review
Although this is an issue of first impression in this jurisdiction, other circuits have held that the standard is abuse of discretion. See United States v. Crockett, 979 F.2d 1204, 1215-17 (7th Cir. 1992) (trial court enjoys substantial discretion in empaneling an anonymous jury so long as there is strong reason to believe jury needs protection and reasonable precautions are taken to minimize any prejudicial effects on defendant).
The Sixth Amendment guarantees to criminal defendants the right to a fair trial by an impartial jury. The presumption of innocence is an essential component of a fair trial. Estelle v. Williams, 425 U.S. 501, 503 (1976). To protect that right, this court has taken a "stringent view of any action which creates an appearance of danger in a trial." Dorman v. United States, 435 F.2d 385, 398 (D.C. Cir. 1970).
When a judge conducts a trial in a way that can only impress upon the jury the dangerousness of the men on trial, this impartial search for truth aborts. Therefore, the judge should be at pains not to act precipitately.
Id. at 398.
"As a matter of law and virtually immemorial custom, public trials have been the essentially unwavering rule in ancestral England and in our own Nation." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 593 (1980) (Brennan, J., concurring). The rule was admeasured in United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980). The Second and Third Circuits have adopted the use of anonymous juries in a number of cases -- all of which involve notorious narcotics conspiracies operated by criminal syndicates. See, e.g., United States v. Scarfo, 850 F.2d 1015, 1021-26 (3d Cir.), cert. denied, 488 U.S. 910 (1988) (reviewing the history of anonymous jury selection); United States v. Barnes, 604 F.2d at 140-141 (rejecting proposition that jurors must disclose identities in all cases).
Recognizing that the use of anonymous juries poses a significant risk of erosion of the presumption of innocence, those courts which have approved the use of anonymous juries have held that "there must be first, strong reason to believe the jury needs protection," before the court empanels an anonymous jury. See United States v. Thomas, 757 F.2d 1359, 1365 (2d Cir. 1985), cert. denied, 474 U.S. 819 (1986), cited in United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990). "[T]he impaneling of an anonymous jury -- and its impact on the presumption of innocence -- must therefore receive close judicial scrutiny and be evaluated in the light of reason, principle and common sense." United States v. Thomas, 757 F.2d at 1363.
A district court should not empanel an anonymous jury without "(a) concluding that there is strong reason to believe the jury needs protection and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected." United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991). In United States v. Millan-Colon, 834 F. Supp. 78, 83-84 (S.D.N.Y. 1993), the court noted that the mere fact that defendants were charged with crimes involving a narcotics enterprise, money laundering and violence was not sufficient to justify using an anonymous jury without some suggestion that there had been jury tampering, juror intimidation or some interference with the judicial process. See also United States v. Vario, 943 F.2d 236, 241 (2d Cir. 1991) (error to empanel an anonymous jury based on the mere allegation that the defendant has substantial ties to organized crime figures), cert. denied, 112 S. Ct. 882 (1992). In United States v. Melendez, 743 F. Supp. 134, 136-139 (E.D.N.Y. 1990), the court rejected a request for an anonymous jury notwithstanding serious allegations of racketeering, violence and narcotic violations, but ordered partial restrictions on information disclosed based on alleged threats to codefendants.
Recently, in Commonwealth v. Angiulo, 415 Mass. 502, 615 N.E.2d 155 (Mass. 1993), the Supreme Court of Massachusetts reversed a conviction where the erroneous use of an anonymous jury was compounded by misconduct of the trial judge in examining jurors outside the presence of counsel and the defendant. Although the court rejected the use of an anonymous jury on statutory grounds applicable to defendants charged with crimes punishable by death or life imprisonment, it provided guidance in future cases by requiring that no anonymous jury be empaneled "unless the trial judge has first determined on adequate evidence that anonymity is truly necessary and has made written findings on the question." 615 N.E.2d at 171. The district court in this case failed to comply with either of these requirements.
In cases where anonymous juries have been empaneled, courts uniformly have required a demonstration of a genuine and realistic likelihood that the defendants have the means to tamper with the jury and will, in fact, tamper with it. See United States v. Locascio, 6 F.3d 924, 930, 947 (2d Cir. 1993) (wiretap revealed that defendants discussed schemes for interfering with judicial process and that they were pro-active with regard to jury tampering and witness intimidation), cert. denied, 114 S. Ct. 1645 (1994); United States v. Crockett, 979 F.2d at 1215-1217; United States v. Thomas, 757 F.2d at 1362. In addition, a finding of genuine media interest and likelihood of extensive media coverage is required. See United States v. Vario, 943 F.2d at 240 (history of tampering with juries in other cases coupled with extensive media coverage of case); United States v. Eufrasio, 935 F.2d 553, 558-559 (3d Cir. 1991) ("Mafia" defendants in high profile conspiracy trial which received extensive media coverage); United States v. Persico, 832 F.2d 705, 717 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988) (history of witness tampering and extensive media coverage).
In the extraordinary event that a court decides to empanel an anonymous jury, it should tell the jurors why they will be anonymous in such a way as to minimize the effect of anonymity on their perception of the defendants. The suggested contents of the instruction diverge by circuit. The Second Circuit has held that the district court should tell the jury that the reason for anonymity is to insulate the jury from media publicity and not refer to any potential danger of tampering from the defendants. United States v. Locascio, 6 F.3d at 947. The Third Circuit has held that the district court should be "frank with the jury" and should instruct the jurors that the purpose of anonymity is to dispel any worries about personal safety that the jurors may harbor since the trial involved members of organized crime even though the court does not believe that there is "the slightest reality" to any "feeling of insecurity" that the jurors may have. United States v. Scarfo, 850 F.2d at 1028.
C.Where There Was No Showing of Need for Anonymity, the Court Abused Its Discretion in Making the Jury Anonymous
Anonymous juries have been employed almost exclusively in cases involving highly sophisticated crime syndicates -- the "mafia" and "La Cosa Nostra" -- in which the defendants previously had demonstrated that they were ready, willing and able to tamper with jurors. See United States v. Crockett, 979 F.2d at 1216; United States v. Thomas, 757 F.2d at 1362-1363. In each of the aforesaid cases, the government presented the court with some evidence of the defendant's history of jury tampering. In this case, the lack of evidence supporting a conclusion that the defendants had the inclination to influence a juror was matched by a total paucity of proof that the defendants had the ability to tamper with a member of the jury. The court did not make factual findings in support of its decision to empanel an anonymous jury simply because there were no facts of record from which to make findings.
Defendants recognize that the charges in this case were serious and carried substantial penalties. However, because federal sentencing provisions -- mandatory minimum statutory penalties combined with Sentencing Guidelines -- require lengthy sentences for even low-level drug offenders, the potential penalty in a case is not a significant consideration in determining whether an anonymous jury is necessary. Moreover, the more serious the charges and possible penalties in a case, the more important it is for the defense to be able to conduct a full voir dire and for the trial court to insure that the jury's opinion of the defendants is not tainted by the use of an anonymous jury. In fact, in the most serious cases -- involving capital offenses -- the law requires pre-trial disclosure of names and addresses of all prospective jurors. See 18 U.S.C. § 3432. Defendants facing life imprisonment and sentences exceeding a quarter of a century should, at a minimum, receive such information at the time of jury selection.The arbitrariness of the order to use an anonymous jury is further demonstrated by the fact that the district court refused to conduct a hearing on the issue. Immediately prior to the voir dire, defense counsel opposed the use of the anonymous jury and, on behalf of all defendants, moved that they be heard on the issue. The district court ignored the motion. (9/11/89 Tr. 1892-1893). While a hearing has not been required in every case as a matter of law, it is highly recommended. United States v. Eufrasio, 935 F.2d at 574. However, because the district court in this case decided sua sponte to use an anonymous jury and thereby substantially burden a fundamental right, a hearing was essential. A hearing would have allowed for a full and rational consideration of the need for an anonymous jury and avoided the arbitrariness of the court's unilateral decision.
D.The Court's Use of the Most Restrictive Alternative In A Case Where Either Sequestration or a Change of Venue Would Have Solved the Problem of Media Influence Was An Abuse of Discretion
If the sole criterion for use of an anonymous jury were media attention, this case undoubtedly would qualify. However, in this circuit, two well-established procedures for dealing with media attention have stood the test of time: sequestration and a change of venue. In a recent high publicity case which received national attention, United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991), the jury was sequestered, but not anonymous. Similarly, in United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc), cert. denied, 431 U.S. 933 (1977), the jury was simply sequestered. As a result of a change of venue, the second trial of United States v. Antonelli, Crim. #78-00175 (GAG) (D.D.C.), took place in Philadelphia.
Sequestration alone would have sufficed to insulate the jury from the inevitable media coverage which was likely to attend the trial of the first group of xxxxxxx defendants. There is nothing in the record that in any way suggests that representatives had or could have had improper contact with jurors. If the district court nevertheless believed that there was a danger of improper contacts between representatives of the media and the jurors, sequestration without anonymity would have adequately averted that danger. Alternatively, a change of venue would have solved the problems raised by the pre-trial publicity. Rather than considering either of these less restrictive alternatives, and without conducting a hearing or even providing the parties with an opportunity to research, brief, and argue the issue, the court ruled by fiat.
The arbitrariness of the decision is also demonstrated by failure of the district court adequately to consider whether a less restrictive alternative to absolute anonymity was available. Even if the district court had properly concluded that anonymity was necessary after duly considering the facts, it should have considered practical means of rationally fashioning the extent of the anonymity so that the intrusion on the constitutional rights of the defendants would have been as minimal as possible. See, e.g., United States v. Melendez, 743 F. Supp. at 135 (first names and street addresses of jurors withheld but surnames, general locations of residence and types of employment revealed).
E.The Explanations Given to the Jury Regarding Their Anonymity Were False and Misleading and Could Only Result In A Belief that the Jurors Were Anonymous Because They Were Endangered By the Defendants
After the jurors were told at the time they filled out their questionnaires, that anonymity was "common in federal courts," the court somewhat inconsistently advised three panels during voir dire that because of the
. . . close scrutiny and legitimate interest by the press and others in this case, and in order to avoid any outside or extra-judicial pressures or conduct which might affect the integrity of the right to a trial by jury process, the court has decided to sequester the jury . . . (9/11/89 Tr. 1902; see also 9/11/89 Tr. 1960; 9/13/89 Tr. 2242-43)
Moreover, in its final instructions the court informed the jurors that, "just like the fact that your anonymity has been preserved and that you've been sequestered, [the court is] going to ask the marshal to be with you during the luncheon recess, not because nobody [sic] mistrusts you but to protect you." (12/1/89 Tr. 93-94)
Despite the court's efforts to mislead the jury into believing that their anonymity was intended to keep the press away from them, they were well aware of (and many jurors noted) the extraordinary security precautions and personnel, the large number of defendants in the courtroom, and the bullet-proof plexiglass barrier, behind which sat the defendants' families, friends, and the press. The message was not subliminal.
The court's statements did not in any way explain that anonymity was necessary to protect the privacy of the jurors from the media (Second Circuit approach) or from the defendants from whom there was no known possibility of danger to the jurors (Third Circuit approach). Since the statements mentioned merely juror privacy as the reason for anonymity, the jurors were left to speculate as to whether the district court was really using anonymity because the jurors were in personal danger or because it had decided that the defendants were guilty.
Although the court's instruction referred to media publicity as a reason for anonymity and sequestration, it did so in the conjunctive to "outside or extra-judicial pressures that might affect the integrity of the right to trial". The jurors were not told affirmatively that there was no threat to their personal safety or that the only reason for anonymity and consequent sequestration was media publicity. Instead, the court's preliminary instruction, coupled with its comment during its final instruction implying that the jurors' anonymity was to "protect" them, sent a clear message that the court believed that there were or could be threats to their personal safety from the defendants. That message can only be deemed to have "cast the defendant[s] in an unfavorable light." United States v. Thomas, 757 F.2d at 1364.
The court failed to provide to the jury any clear guidance in the form of a credible explanation and non-inflammatory instruction as to the reason that they were anonymous. Under the circumstances, the jurors could only draw negative and adverse inferences from the fact that their identities were shielded from the defendants. Because it is unlikely that the jurors could have impartially weighed the evidence presented at trial without the taint created by their anonymity, the defendants were denied their right to a fair trial.
F.The Court's Refusal to Allow the Defense Access to Residential Information About the Prospective Jurors Denied the Defense an Opportunity to Exercise Their Peremptory Strikes Intelligently
In furtherance of its anonymity order, the court allowed the parties to ascertain the quadrant of the city in which the prospective jurors resided, but did not allow inquiry into the neighborhood or exact address. Since the defendants could not determine the type of neighborhood (drug-ridden, orange-hatted or barred) in which the prospective jurors lived, their ability to make effective use of their peremptory strikes was severely eroded. "The principal value of the peremptory is that it helps produce
fair and impartial juries. J.E.B. v. Alabama, 114 S. Ct. 1419, 1431 (1994) (O'Connor, J., concurring).
For centuries, Anglo-American jurisprudence has recognized the importance of a person's residence to his sense of self and his place in the community. In order to determine whether a prospective juror can be fair, it is essential for the trial attorney to determine whether the area in which the juror lives is drug-ridden (Clifton Terrace), infamous as a result of a notorious homicide (Acker Street, N.E.), or has been the subject of extraordinary rehabilitation efforts (Queen's Stroll). In some areas of this city, the police are considered to be protectors and guardians of the public; in others, police officers are considered to be predators, and inspire such mistrust that citizens will avoid them like the plague. Lacking the information, counsel was unable to explore the biases and prejudices of the prospective jurors during the voir dire process. Had the information been available, counsel would have been in a position at least to suggest to the court a line of inquiry on issues which could be material to the case. See Aldridge v. United States, 283 U.S. 308 (1931); United States v. Tutino, 883 F.2d at 1133; United States v. Barnes, 604 F.2d at 137.
Knowing the quadrant where the prospective juror resides is of little value in determining whether to exercise a peremptory challenge. In the northeast quadrant alone, residential neighborhoods span the spectrum from the houses in protected and well-policed sections of Capitol Hill to student housing in the
areas of Catholic and Gallaudet Universities to public housing in
the area of Nannie Helen Burroughs Avenue. See United States v. Gibbons, 602 F.2d 1044, 1053 (2d Cir. 1979) (Oakes, J., dissenting), cert. denied, 444 U.S. 950 (1979) (knowing someone is from Manhattan insufficient to provide knowledge of community in which prospective juror lives). Experienced criminal defense attorneys maintain a professional interest in the events in various sections of the city. To deprive them of the information regarding the jurors' residences was to depreciate the value of the peremptory challenges allotted to the defense.
This was the first trial ever held in the District of Columbia in which an anonymous jury was empaneled. For the first time here, defendants in a criminal case did not know the names, residences, or places of employment of their fellow citizens who sat in judgment of them. Such an extreme and extraordinary measure which impairs the right to exercise peremptory challenges -- heretofore employed by other courts in a handful of cases in which a real threat of jury tampering existed -- was unnecessary in this case because there was no indication of jury corruption and sequestration alone would have sufficed to insulate the jury from the media. The trial judge could not have made a finding of necessity because there was no evidence to support such a finding. It is no wonder that the record is barren of any findings on this issue.
Given the charged atmosphere of this trial -- extremely tight security coupled with extensive media interest -- it blinks reality to assume that the jurors were not aware that the actual reason for their anonymity was to protect them from the defendants. Thus, the judge's attempt to hide his belief that the defendants posed a threat to the jurors' safety by stating that anonymity was a standard procedure only made matters worse. The presumption of innocence could not withstand such a heavy burden.
Affirming the use of an anonymous jury in this case would set a terribly dangerous precedent because anonymity simply was not necessary to protect the jurors from harm or improper influence. Moreover, the trial judge did not conduct a hearing on the issue, made no findings in support of his decision, and failed to take reasonable precautions to minimize the effect of the jurors' anonymity on their collective perception of the defendants, whose fate they were sworn to decide. Finally, the district court failed to balance the defendants' fundamental due process right to a fair trial with any perceived interest in empaneling an anonymous jury. In holding that a newspaper was entitled to the names and addresses of the veniremen and women in a high profile criminal trial, Circuit Judge Widener stated in words particularly applicable to this case:
We recognize the difficulties which may exist in highly publicized trials such as the case being tried here and the pressures upon jurors. But we think the risk of loss of confidence of the public in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity. If the district court thinks that the attendant dangers of a highly publicized trial are too great, it may always sequester the jury; and change of venue is always possible as a method of obviating pressure or prejudice.
In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).
For each of these reasons, this court should reject resoundingly the use of an anonymous jury in this case and remand the case for a new trial before a public jury.
THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANTS' MOTION FOR CHANGE OF VENUE WITHOUT A HEARING AND IN CONDUCTING AN UNFAIR JURY SELECTION PROCESS WHERE THE CASE INVOLVED INFLAMMATORY PRETRIAL PUBLICITY WHICH WAS INSTIGATED BY THE GOVERNMENT.
On April 15, 1989, with a shower of publicity, the United States initiated the arrests of xxxxxxx xxxxxxx III and his codefendants. The media was present at the booking of some defendants, [A. III. 110 Exhibit C] , and televised the arrest of one defendant. (8/7/89 Tr. 378)
Three days after the arrests began, then U.S. Attorney Jay B. Stephens held a press conference on the front steps of the Courthouse. Mr. Stephens announced that "xxxxxxx's group distributed 20 to 50% of the cocaine coming in. It was a closely knit family organization with enforcers, runners, lieutenants and money counters." [A. III. 26] Less than a week later, the Washington Post ran a lengthy front page story describing Mr. xxxxxxx as a flashy drug lord who lured the youth of the city into drug dealing with all-expense-paid trips to the Superbowl and to championship prize fights, Mercedes-Benz automobiles, $5,000 a week salaries and Dom Perignon champagne at local nightclubs. According to the article, his enforcers, wearing black jumpsuits, shot rival drug dealers on behalf of the organization. The reporter stated that several law enforcement officials, speaking on condition of anonymity, were the sources of the allegations contained in the story. [A. III. 34]
Nightly coverage on local television show City Under Siege and the local news continued for weeks, and included a four-hour special on Nightline, "The Divided City," on April 27, 1989, during which John Thompson, Georgetown University's basketball coach, discussed this case and the cocaine overdose of Maryland basketball star Len Bias. Stories about a meeting between Coach Thompson and xxxxxxx xxxxxxx III permeated the press. [A. III. 87-88; "Videotapes"]
Two motions for change of venue, filed July 13, 1989, were summarily denied that same date. [A. III. 81]
Throughout July and August, the media continued to focus on the effects of cocaine trafficking on the citizens and economy of Washington. Hoya basketball star John Turner's basketball scholarship was withdrawn due to his association with xxxxxxx xxxxxxx III. [A. III. 136-138] His subsequent arrest on drug charges provided the occasion for a second round of stories connecting him to Mr. xxxxxxx. [A. III. 145-148] In a front page story, "Dying Young in DC," the Washington Times described the wholesale slaughter of juveniles in drug-related incidents. The dead youngsters included Donnell Winley, a sixteen-year-old alleged member of xxxxxxx's organization. [A. III. 150-157] The deaths of witnesses in drug cases, and death threats to witnesses, provided a recurrent theme. [A. III. 156-157, 173-175] Stories about lavish lifestyles of drug dealers in general, and xxxxxxx defendants in particular, pervaded the pretrial coverage. [A. III. 141-142, 160-162] Concomitantly, bombings by Colombia's cocaine cartels, which resulted in offers by the Bush administration to send troops to South America, were being given heavy coverage by the press. [A. III. 164-168, 185, 188-191, 194-195, 201-202, 217-220]
On August 25, 1989, the court announced, sua sponte, that the xxxxxxx jury would be sequestered and anonymous. (See Point I) The anonymous jury order created an issue of first impression in the District of Columbia. The Washington Times reported that:
One police official who requested anonymity said sequestering the jury is a precautionary measure taken by the judge in light of the drug-related violence in this city. This guy (Mr. xxxxxxx) might be responsible for several homicides . . . (Joint Motion, ex. dated 8/28/89)
[A. III. 248]
In the wake of the anonymity order, the government's manipulation of the media escalated. On August 31, 1989, in a Washington Times story titled "Gangland killings in D.C. emulate Capone-era style", unnamed area investigators said "the most notorious D.C. gang with Capone-like tendencies is the xxxxxxx xxxxxxx-Tony Lewis organization that has been linked to as many as 30 homicides and hundreds of thousands of dollars in drug trafficking. The article went on to link the xxxxxxx defendants to the notorious Crips gang in Los Angeles, the Colombian cartels, and the death of 16-year-old Donnell Winley. Finally, the story announced that the xxxxxxx defendants were an offshoot of the 8th 'n H Crew, which broke up after ten members went to trial for the slaying of Catherine Fuller (who was fatally assaulted in 1984 after a metal pole was inserted in her anus). [A. III. 260]
Eight days before jury selection began, the Washington Post began a three-part series which described the government's case in lurid detail. [A. III. 278-287, 301-305] On September 3, 1989, the first article, "Making a Link to the Colombian Source," featured a front page picture of bombed offices in Colombia. It went on to describe the meeting between "flashy" 22-year-old xxxxxxx xxxxxxx III and Melvin Butler, a member of the Crips gang, who established the connection between the Colombian drug cartel and the cocaine distributed by the xxxxxxx organization. On September 4, 1989, the Post featured the seizure in Missouri of 1,102 pounds of cocaine with "Cali" (Colombian cartel) markings and its connections to xxxxxxx xxxxxxx III and Melvin Butler. Again, interviews with unnamed officials, as well as affidavits of federal officers, were the sources of the story. Finally, on September 5, 1989, the newspaper described the street distribution operation in the District of Colombia, and repeated the information that DC police attributed 30 murders to the xxxxxxx organization. Jay Stephens was quoted: "It resembled the traditional organized crime, of La Cosa Nostra." [A. III. 303]
On September 6, 1989, the defense filed its Joint Motion for Reconsideration of Change of Venue, appending 98 cocaine-related news articles that had been published since the earlier motions were filed and denied in July. Nineteen of the stories related directly to the xxxxxxx case. Once again, the motion was denied without a hearing on September 9, 1989. [A. IV. 229]
Jury selection was conducted by the court with occasional input of counsel. Prior to jury selection, prospective jurors filled out questionnaires, at which time they were advised that they would be anonymous. [A. I. 258-261] The court's Order regarding jury selection was issued September 5, 1989. [A. III. 126-129] On September 8, 1989 (the Friday before jury selection was to begin and the day that the completed juror questionnaires were to be released to the defense), the court summoned the attorneys at 5:35 p.m. to announce that the court personally had reviewed 101 of the completed questionnaires and had dictated twenty suggested strikes for cause. (9/8/89 Tr. 1824-1825) The defense objected to striking any prospective juror for cause without having an opportunity to review and compare the questionnaires and to consult with the defendants. The court responded "All right. You win. . . . I tried to help you, but if you don't appreciate it, you are on your own." (9/8/89 Tr. 1829). The issue was resolved after counsel suggested that the twenty prospective jurors in question be placed on call subject to counsel's review of the questionnaires.
On September 11, 1989, the court commenced a four-day voir dire process in the secured courtroom which was assigned for the duration of trial. During jury selection, and prior to the sequestration of the anonymous jury, Mr. Stephens was quoted on television as stating that this case represented the government's attempt to send a message to the children of Washington, D.C. (9/12/89 Tr. 2071) Despite the court's earlier assurance that individual voir dire would occur in instances in which the prospective jurors had heard about the case in the media or had formed opinions about it (9/5/89 Tr. 1610), by the second day of jury selection the court refused to allow individual voir dire regarding media and drug issues. See, e.g., 9/12/89 Tr. 2146 et seq. (court refused to ask questions regarding drug usage by siblings and former boyfriend, and interrupted questions about media to ask whether juror could put it aside); 9/12/89 Tr. 2188, et seq. (where juror's nephew overdosed in area of Northeast, D.C. where defendants allegedly distributed drugs, court complimented juror on intelligence, facial expressions and dress, said it assumed juror could put all those things aside, and precluded further questioning); 9/12/89 Tr. 2214 (where juror's cousin overdosed and drugs harmed close member of family, request for individual voir dire denied); 9/13/89 Tr. 2370 (where juror read about case and was not sure he could be fair, court denied individual voir dire); 9/13/89 Tr. 2378 (where juror knew about Crips gang, court denied voir dire regarding opinions based upon what he read in newspapers); 9/13/89 Tr. 2381 (where juror knew about Crips because he had seen it in a movie, court precluded further individual voir dire, repeating that "this is not a psychiatric examination").
On the second day of jury selection (September 12, 1989), the court refused to strike a prospective juror who expressed fear. Thereafter, four prospective jurors in succession advised the court that they could not be fair in view of the media stories, security measures, reports of killings and number of defendants on trial. (9/12/89 Tr. 2107-2116) The defense then unsuccessfully renewed its motion for change of venue. (9/12/89 Tr. 2133) Citing the Herculean efforts of the court, and noting that the President of the United States, political leaders, clergymen and the "great national media" had all taken strong positions on drugs, the judge advised the panel that their job was to put all of that information aside in order to decide the case on the facts. (9/12/89 Tr. 2163- 2166) Over objection, the court repeatedly told the panel that this would be an extremely interesting case, and that they would be the beneficiaries of attractive accommodations. (9/13/89 Tr. 2284)
A. Standard of Review.
The standard of review for denial of a change of venue is abuse of discretion. United States v. Chapin, 515 F.2d 1274, 1287 (D.C. Cir.), cert. denied, 423 U.S. 1015 (1975). However, "[t]he responsibility for passing on a claim for change of venue or delay in a trial because of prejudicial pretrial publicity calls for the exercise of the highest order of sound judicial discretion by the trial court." Ehrlichman v. Sirica, 419 U.S. 1310, 1312 (1974) (emphasis added).
B.The Trial Court's Denial of Defendants' Motions for Change of Venue From the District of Columbia Where the Publicity Was Sensational, Adverse and Voluminous Deprived Them of A Fair Trial Before An Impartial Jury
The Constitution guarantees every criminal defendant a fair trial before an impartial jury. U.S. Const. amend. V and VI; Singer v. United States, 380 U.S. 24, 36 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963), Jones v. Gasch, 404 F.2d 1231, 1234 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968).
A fair and impartial jury is a quintessential component of a fair trial. In the final analysis, the liberty of a defendant is entrusted exclusively to the jury. Therefore, each juror must be "indifferent as he stands unsworne." Lord Coke, Co Litt 155b, cited in Irvin v. Dowd, 366 U.S. 717, 722 (1961); Chandler v. Florida, 449 U.S. 560 (1981).
A trial court's ability to insure these incontrovertible rights to a criminal defendant is particularly challenged where the media has made inflammatory pretrial presentations in the court of public opinion. "Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. 333, 362 (1966).
The Federal Rules provide a mechanism for transfer of criminal cases to another judicial district
if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district. Fed. R. Crim. P. 21(a).
In order to make the determination that prejudicial publicity may prevent a fair trial, the trial court need only satisfy itself that there exists a reasonable likelihood of unfairness. "A showing of actual prejudice shall not be required." ABA standards on change of venue, Section 3.2(c).
In deciding whether the trial court should have granted a motion for a change of venue in this case, this court must examine the totality of circumstances surrounding the trial to determine whether it was fundamentally fair. Murphy v. Florida, 421 U.S. 794, 799 (1975). That analysis must include consideration of the pervasive negative publicity concerning the parties and issues in this case, the trial court's refusal to hold an evidentiary hearing on the motion for change of venue and the conduct and results of the jury selection process itself. The two standards which guide the totality of circumstances analysis are the "presumed prejudice" and "actual prejudice" standards. These standards are derived from a defendant's due process and Sixth Amendment rights to be tried by an impartial jury. Irvin v. Dowd, 366 U.S. at 722. If the trial court is unable to seat an impartial jury because of prejudicial pretrial publicity, due process requires the court to grant a motion for a change of venue. See Groppi v. Wisconsin, 400 U.S. 505 (1971); Rideau v. Louisiana, 373 U.S. at 727.
2.Jury prejudice was presumptive where the pretrial publicity concerning the case was continuous from the time of the arrests to the time of trial, was wildly inaccurate and wholly prejudicial and where the government deliberately inflamed the media coverage of the case.
Jury prejudice is presumed from pretrial publicity when such publicity is sufficiently prejudicial and inflammatory and has saturated the community where the trial was held. See Coleman v. Kemp, 778 F.2d 1487, 1490 (llth Cir. 1985) (inflammatory pretrial publicity so pervasive as to create presumed prejudice in trial of defendant charged with murdering six members of family in small rural community), cert. denied, 476 U.S. 1164 (1986).
Although the presumed prejudice principle is rarely applicable, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976), it should be applied to the extreme situation in this case for several reasons. First, the pretrial publicity was sufficient to prejudice the most detached citizen to be found in the city. The media attributed thirty murders to the organization, whose leaders were depicted as "drug lords" who lived hard, fast and high on the hog. According to the press, the street-level dealers were making $5,000 a week. Thus, the publicity was extremely negative and highly inflammatory. Secondly, the government's consistent violations of Local Rule 308(b) poisoned the community during the five months which elapsed between the arrests and trial. The United States Attorney's well-attended press conference was conducted on the front steps of the Courthouse, where he faced cameras and Constitution Avenue as he violated the document for which the street was named. Immediately prior to jury selection, he compared the defendants to members of "La Cosa Nostra" and announced that the trial was being staged as a morality play for children. Without a shred of evidence, the media linked the defendants to the truly ghastly murder of Catherine Fuller, the manner of which had not faded from the minds of the citizenry.
The nature of the charges and arrests in this case undoubtedly would have sparked a degree of media attention.
The government, however, deliberately fanned the media flame, singeing the mind and memory of each prospective juror in the city. Only "local and federal authorities" provided the information which appeared in the front page newspaper stories at the time of the arrests. The government had become "a conscious participant in trial by newspaper." Stroble v. California, 343 U.S. 181, 201 (1952) (Frankfurter, J., dissenting). After the four-hour Nightline broadcast, the media admitted in an article that the "coverage has begun to have an impact all its own." (Washington Post, 5/7/89, Motion for Change of Venue, Exhibit A).
Over fifty years ago, the Supreme Court stated that "legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Bridges v. California, 314 U.S. 252, 271, (1941), cited in Sheppard v. Maxwell, 384 U.S. at 350. Those well-known standards, now enhanced by television, did not deter the United States Attorney or the law enforcement officials.
Moreover, the court's unilateral decision to empanel the city's first anonymous jury exacerbated the problems created by the virulent publicity in this case and insured that jurors would believe that they were in need of protection. The court's conclusion that anonymity was necessary irrevocably tipped the scales against the defendants, because given the extensive publicity surrounding the case, any reasonable juror could only conclude that the reason for anonymity was for his or her own protection from the notorious and dangerous defendants. (See Point I)
Thus, the publicity surrounding this trial was sufficiently inflammatory to be presumptively prejudicial. See Isaacs v. Kemp, 778 F.2d 1482, 1484 (llth Cir. 1985), cert. denied, 476 U.S. 1164 (1986) (prejudice presumed where statements of accomplice describing the murders were known in the community and one juror had sat through three trials of others charged in the crime); United States v. Williams, 523 F.2d 1203, 1208-09 (5th Cir. 1975) (intense pretrial publicity and prejudicial closing argument by prosecutor, taken together, deprived defendant of fair trial).
The nature and extent of the publicity differed from the press which has attended the high-profile political trials in this district. See, e.g., United States v. North, 910 F.2d 843 (D.C. Cir.), cert. denied, 111 S.Ct. 2235 (1991); United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 656 (1992); United States v. Barry, 938 F.2d 1327 (D.C. Cir. 1991); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc), cert. denied, 431 U.S. 933 (1977). Although the political trials generated substantial publicity, no Watergate or Iran-Contra defendant was alleged to have murdered citizens, amassed millions of dollars as a result of illicit drug transactions, or participated in an organization akin to the Mafia. Nor was the pre-trial publicity generated in the notorious murder case, United States v. Sampol, 636 F.2d 621, 680-681 (D.C. Cir. 1980), analogous to this case. Although the publicity in Sampol was substantial, it occurred during three distinct periods -- at the time of the murders in 1976, the indictment in 1978, and a week prior to the trial in 1979. The trial of the defendants in this case, in contrast, began within five months of the arrests. The pre-trial publicity was sensational, adverse and unabated throughout the entire period.
If jurors are exposed to highly prejudicial information sufficient to result in an unfair trial, the conviction may be reversed in the exercise of the Court's supervisory power. Murphy v. Florida, 421 U.S. at 797, citing Marshall v. United States, 360 U.S. 310 (1959) (case reversed although jurors who saw prejudicial publicity said they could be fair); Coppedge v. United States, 272 F.2d 504 (D.C. Cir. 1959), cert. denied, 368 U.S. 855 (1961).
C.The Trial Court's Manner of Conducting the Jury Selection Process Eliminated the Possibility of A Fair Appraisal of The Actual Prejudice of the Entire Jury Panel
During the voir dire examination, the trial court has a final independent opportunity to consider the effects of prejudicial pretrial publicity and the possibility of empaneling a fair and impartial jury. See United States v. Chapin, 515 F.2d at 1285-86.
In this case, the trial court, well aware of the pretrial publicity and community prejudice, reacted by empanelling an anonymous jury without consultation with the parties. In an effort to streamline the voir dire process, he administered a juror questionnaire to the prospective jurors. [A. IV. 1-19] The fallacy in the trial court's plan emerged during the jury selection process, when it became apparent that many of the prospective jurors had heard about the case and formed opinions about it. In response, the court made lengthy statements about the requirement that each prospective juror put aside any negative opinions about publicity, drugs, the Crips gang, etc., and then asked complex questions that had the effect of preventing jurors from approaching the bench. When a few jurors did approach the bench, the judge refused to ask follow-up questions or to allow individual voir dire of those jurors who had indicated knowledge of the case. The result was a jury selected in accordance with the trial court's stated premise:
We tried the Watergate defendants, the Oliver North case, Albert Fall, way back in the Teapot Dome scandals, in the Harding administration or some of the other more highly publicized trials in this jurisdiction, as well as in others. The final answer to that can only be determined after the voir dire process is completed that the Court is satisfied that we can obtain a fair and impartial jury, which the Court believes will still be possible. (9/12/89 Tr. 2066-67)
Furthermore, the jury selection procedures employed by the trial court relating to matters of pre-trial publicity and juror opinions about the issues involved in the case were structured to avoid revelations of possible prejudice on the part of the prospective jurors. See Jordan v. Lippman, 763 F.2d 1265, 1281 n.19 (llth Cir. 1985) ("general inquiries as to impartiality, when directed to the group as a whole, are unlikely to elicit admissions of partiality."); United States v. Davis, 583 F.2d 190, 196 (5th Cir. 1978) (where nature of pretrial publicity raises significant possibility of prejudice, due process requires more than general questions to venire as group regarding ability to render impartial verdict).
The trial court's general questioning of the jury panel as to exposure to publicity and its inadequate follow-up questions were insufficient to determine whether actual prejudice existed, and as in Davis, 583 F.2d at 196-198, requires reversal of the defendants' convictions. See also Jordan v. Lippman, 763 F.2d at 1274-1281; United States v. Hawkins, 658 F.2d 279, 282-285 (5th Cir. 1981); United States v. Dellinger, 472 F.2d 340, 374 (7th Cir.), cert. denied, 410 U.S. 1970 (1973); Silverthorne v. United States, 400 F.2d 627, 635-640 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971). Although the court did ask some of the prospective jurors a few questions regarding their exposure to pretrial publicity, the substance and scope of the examination was highly restricted. Moreover, the court improperly limited the jurors' responses to questions concerning their knowledge of the case. In short, the trial court failed to conduct a searching and sensitive voir dire on the issue of pretrial publicity which was necessary under the extraordinary circumstances of this case.
Admonitions to the jury to unring the bell such as those pronounced by the court during voir dire, are useless. ". . . [I]t is like the Mark Twain story of the little boy who was told to stand in a corner and not to think of a white elephant." United States v. Leviton, 193 F.2d 848, 868 (2d Cir. 1951) (Frank, J., dissenting), cert. denied, 343 U.S. 946 (1952).
D.The Limitation of Voir Dire Unfairly Restricted the Defendants' Exercise of Peremptory Challenges
"Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently." J.E.B. v. Alabama, 114 S. Ct. at 1429. Peremptory challenges have a constitutional foundation, in that they are an important "means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 112 S.Ct. 2348 (1992). The importance of peremptory challenges was recognized in Pointer v. United States, 151 U.S. 396 (1894), reiterated in Stilson v. United States, 250 U.S. 583, 586 (1919) ("one of the most important rights secured to the accused") and given heightened vitality in Swain v. Alabama, 380 U.S. 202 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79 (1986), when the Court acknowledged that "the denial or the impairment of [this] right is reversible error without a showing of prejudice." 380 U.S. at 219.
The trial court has broad discretion to determine the most effective method of conducting voir dire examination as long as the purpose of peremptory challenges is preserved. Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion) (adequate voir dire necessary for judge to discover bias in prospective jurors and for counsel to exercise peremptory challenges intelligently). This discretion, of course, is subject to the essential demands of fairness. United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983); United States v. Brooks, 670 F.2d 148, 152 (llth Cir.), cert. denied, 457 U.S. 1124 (1982). The standard for determining whether the trial court's exercise of its discretion meets the essential demands of fairness is whether the procedure used for testing juror impartiality created "a reasonable assurance that prejudice would be discovered if present." United States v. Holman, 680 F.2d 1340, 1344 (llth Cir. 1982). Where the voir dire procedure derogates a defendant's right to exercise his challenges, the case should be reversed, irrespective of prejudice. United States v. Ricks, 776 F.2d 455 (4th Cir. 1985) (drug conspiracy convictions reversed).
In this instance, by consistently denying the defense the opportunity to obtain basic and highly relevant information, the court deprived the defendants of the information necessary to exercise their peremptory challenges in an enlightened fashion.
The trial court committed numerous errors in its rulings relating to the extensive publicity surrounding this case and the jury selection process itself. Some of the errors, such as denying the motion for a change of venue and refusing to permit individual voir dire of jurors who were exposed to pretrial publicity, are sufficient, by themselves, to warrant a new trial. Moreover, the cumulative effect of all of the errors committed by the court compels reversal of the defendants' convictions and necessitates a new trial. See United States v. Freeman, 514 F.2d 1314, 1318 (D.C. 1975) (reviewing court must weigh "cumulative impact" of numerous trial errors), vacated, 598 F.2d 306 (D.C. Cir. 1979). Ordering a new trial now that the massive publicity has subsided, with a public jury, and full and unrestricted voir dire would entitle the defendants to receive what is guaranteed to them by law -- a fair trial by an impartial jury.
THE CUMULATIVE EFFECT OF THE TRIAL JUDGE'S CRITICAL COMMENTS, HOSTILE MANNER, INTIMIDATING TACTICS, UNWARRANTED CONTEMPT FINDINGS, AND UNEQUAL TREATMENT OF THE DEFENSE AND PROSECUTION ADVERSELY INFLUENCED THE JURY AND DEPRIVED DEFENDANTS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT TO A FAIR AND IMPARTIAL TRIAL.
The defendants in this case were denied their fundamental right under the Due Process Clause to a trial before an unbiased judge. This venerable right is recognized and developed in a long line of cases that hold that due process will not tolerate actual bias or even the appearance of bias. "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness . . . . '[J]ustice must satisfy the appearance of justice.'" In re Murchinson, 349 U.S. 133, 136 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).
Thus, a trial judge must maintain a disinterested and neutral position and avoid creating even the appearance of partiality. United States v. Logan, 998 F.2d 1025, 1028-29 (D.C. Cir. 1993); United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.), cert. denied, 439 U.S. 835 (1989); United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969); Billeci v. United States, 184 F.2d 394, 403 (D.C. Cir. 1950). A judge's demeanor, conduct, and behavior during a trial must never indicate to the jury that the judge believes the accused to be guilty. In this regard, the appearance of bias alone can be grounds for reversal even if the trial judge is, in fact, impartial. Bollenbach v. United States, 326 U.S. 607, 612 (1946). In the instant case, the trial judge was actually biased against the defense and created the appearance of partiality by his unequal treatment in the jury's presence of the prosecution and defense -- his one-sided rulings, his explicit verbal threats and attacks on defense counsel, and his more subtle voice intonations and facial expressions combined to impermissibly influence the jury.
Over a century and a half ago, the Supreme Court recognized the danger of undue judicial influence on jury verdicts. See, e.g., Carver v. Jackson, 29 U.S. (4 Pet.) 1, 4 (1830). Before the turn of the century, the Court recognized that the manner in which a judge addresses a jury can have an undue influence on its decision-making process. Starr v. United States, 153 U.S. 614, 625-26 (1894). Thus, although appellate courts are understandably reluctant to reverse a conviction on the basis of a few isolated, arguably prejudicial actions by a trial judge, particularly in a long and complex trial like this one, both the Supreme Court and this Court have reversed convictions where the trial judge's conduct impermissibly influenced the jury and deprived the accused of a fair trial. Quercia v. United States, 289 U.S. 466, 469 (1933) (conviction reversed where trial judge indicated that he disbelieved defendant's testimony); Starr v. United States, 153 U.S. at 625-26 (conviction reversed where trial judge expressed indignation at crime with which accused was charged and urged jury to vindicate and uphold the law); United States v. Wyatt, 442 F.2d 858, 861 (D.C. Cir. 1971) (conviction reversed where trial judge's extensive examination of defendant and alibi witnesses may have influenced jury); Salley v. United States, 353 F.2d 897, 899 (D.C. Cir. 1965) (conviction reversed where trial judge made improper comments to defense counsel both in and out of jury's presence); Young v. United States, 346 F.2d 793, 795-96 (D.C. Cir. 1965) (conviction reversed where trial judge continuously interrupted defense counsel during cross-examination of essential government witnesses and severely criticized defense counsel at bench conferences which jury may have overheard); Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964) (conviction reversed where trial judge extensively examined witnesses and made prejudicial comments); Blunt v. United States, 244 F.2d 355, 365-66 (D.C. Cir. 1957) (conviction reversed where trial judge extensively examined defense witnesses and made argumentative comments); Peckham v. United States, 210 F.2d 693, 701-03 (D.C. Cir. 1953) (conviction reversed where trial judge's comments and participation in witness examination demonstrated lack of impartiality); Butler v. United States, 188 F.2d 24, 25-27 (D.C. Cir. 1951) (conviction reversed where trial judge refused to permit defense counsel to state basis of objection to court's gesticulations and facial expressions during jury charge); Billeci v. United States, 184 F.2d at 401-02 (conviction reversed where intonations and gestures of trial judge during jury charge were prejudicial).
Like each of the appellants in the cited cases, these defendants must now look to an appellate court to vindicate their right to a fair trial before an unbiased judge. Because the trial judge in this case lacked impartiality and sent a clear, albeit perhaps unintended, message to the jury that he believed the defendants were guilty, their convictions must also be reversed.
A. Standard of Review
The determination of whether the trial judge's behavior was so prejudicial that it deprived the defendants of a fair trial is essentially a legal question subject to de novo review. United States v. Logan, 998 F.2d at 1029.
B.The Trial Judge's Behavior Prejudiced the Defense
This was a long and difficult trial. The pretrial hearings in the case took some eleven days and the trial lasted almost three months. The transcript of the proceedings exceeds 20,000 pages. The trial atmosphere was tense as the courtroom was heavily guarded and often filled with spectators and press personnel. The jury was anonymous and sequestered throughout the trial. Given that backdrop, in order to guarantee the defendants a fair trial it was essential that the trial judge actually be and appear to be impartial, dispassionate, and non-argumentative, thereby creating "that indefinable but knowable ambiance of evenhanded judicial disinterest and respect for the dignity of individuals [that is a] component[ ] of a fair trial." Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.), cert. denied, 115 S. Ct. 215 (1994).
Instead, the district judge exhibited a deprecatory and antagonistic attitude toward the defense from the very beginning of the trial. This attitude was displayed in the court's critical remarks, hostile actions, and threats to impose sanctions upon defense counsel, both in the presence and absence of the jury. By his conduct -- both verbal and nonverbal -- the judge unmistakably conveyed to the jury that he favored the prosecution and that he believed in the defendants' guilt. Instead of receiving a fair jury trial, the defendants in this case were given a trial before a jury that was adversely influenced by a biased judge.
1. Unequal Treatment of Defense and Prosecution
The trial judge's partiality to the prosecution and his often antagonistic attitude toward the defense is evident in the record from the outset of the proceedings. For example, during a colloquy with one defense counsel at a pretrial hearing, the trial judge commented that "[the jury] will like me better than you, you wait and see." (9/5/89 Tr. 1512) This half-prediction, half-warning is evidence of the court's intention to pit itself against the defense in the eyes of the jury. Such a mismatch obviously has disastrous consequences for the defense because even the slightest hint of partiality by the trial judge has a significant impact on the jury. See Billeci v. United States, 184 F.2d at 402.
The judge's influence over the jury was enhanced by his inappropriate comments, such as referring to the jurors as his "dear friends" and stating "[b]less each and every one of you." (9/18/89 Tr. 40; 9/21/89 Tr. 12) Thus, by currying favor with the jury while demonstrating his partiality to the prosecution, the court effectively biased the process against the defense.
On numerous occasions throughout the trial, the court failed to treat both sides equally and fairly, to the detriment of the defense. For example, in its "Trial Order," the court mandated that evidentiary objections not be argued in the presence of the jury but that the basis for objections be stated in open court followed by a request to approach the bench to argue the objection in more detail if "absolutely essential." [A. I. 263] Although this order is neutral on its face, the court selectively enforced it by frequently denying defense attorneys but not prosecutors access to the bench to argue evidentiary objections and other legal points. (See, e.g., 9/18/89 Tr. 40-41; 9/20/89 Tr. 30-31, 40-41, 156; 9/26/89 Tr. 56-60, 62-63, 84, 88-89, 91; 9/27/89 Tr. 64-66; 9/28/89 Tr. 149, 227, 240, 243; 10/12/89 Tr. 81-82, 90; 10/16/89 Tr. 60-63; 10/17/89 Tr. 187, 190; 10/18/89 Tr. 60-61; 10/19/89 Tr. 74-75, 139, 148, 157; 10/20/89 Tr. 147-48, 153-54; 10/25/89 Tr. 6, 9, 15, 24, 146-47; 11/8/89 Tr. 32, 34, 52, 53, 61; 11/20/89 Tr. 209-12; 11/27/89 Tr. 272) Moreover, at times the judge exacerbated the prejudice to the defense in being denied access to the bench by criticizing in the presence of the jury counsel's requests for bench conferences. (See, e.g., 9/20/89 Tr. 40; 9/26/89 Tr. 57-58; 9/28/89 Tr. 228)
The court also refused to follow the common practice of permitting defense counsel to make a continuing objection to a particular line of questioning where the court's rulings made it apparent that separate objections to questions concerning the same subject matter would be overruled. (See, e.g., 9/20/89 Tr. 87-93, 99; 11/20/89 Tr. 212) Thus, the trial judge consistently precluded defense counsel from making legal arguments in support of evidentiary objections while simultaneously requiring them to object for the record -- even when it was clear that the objections would be overruled -- in front of the jury.
Moreover, the court imposed a procedural requirement that motions in limine be made in writing except for good cause shown. [A. I. 264, 267-68] (See, e.g., 9/26/89 Tr. 63, 66-67, 82, 85-86, 88, 113-17; 10/18/89 Tr. 60-61) Because the vast majority of the testimonial and tangible evidence was presented by the prosecution, this practice compelled the defense to frantically write motions in long-hand during witness examinations while the court, without waiting for the written motions, was admitting arguably inadmissible evidence. Once again, this facially neutral procedure was implemented in such a way as to prejudice the defense and, conversely, favor the government.
Finally, although the court occasionally criticized the prosecutors, this was always done outside the presence of the jury and was much less frequent and severe than the criticism of defense counsel. In fact, on one occasion, when a defense attorney objected to the prosecutor making a "speech" in front of the jury, the judge overruled the objection and defended the prosecutor by commenting that she was merely "doing the same thing [that defense attorney had] been doing throughout the trial." (10/24/89 Tr. 164) On two other occasions, the court refused to admonish the prosecutor for her improper comments and characterizations in the jury's presence. (10/25/89 Tr. 7; 10/27/89 (a.m.) Tr. 153-55) Moreover, to the extent that the judge admonished the prosecutors at all, improper treatment by the court of defense counsel cannot be offset necessarily by equally improper treatment of government counsel. United States v. Jackson, 627 F.2d 1198, 1208-09 (D.C. Cir. 1980). Contrary to the trial court's self-serving observation that defendants were fortunate to "have a judge that still can be fair to them in spite of all that's gone [sic] during the course of this trial[,]" (10/27/89 (p.m.) Tr. 33), the trial judge's partiality to the government and hostility toward the defense was so prejudicial that it denied the defendants a fair trial. See United States v. Dellinger, 472 F.2d 340, 387-91 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973) (new trial required on grounds, inter alia, that judge was more likely to exercise discretion against defense and in favor of prosecution).
2. The Judge's Verbal and Nonverbal Conduct
The record in this case is replete with examples of the trial judge's disparaging and often hostile attitude toward the defense, which was conveyed to the jury through both verbal and non-verbal means. On numerous occasions during the lengthy trial, the judge improperly admonished, threatened, criticized, and belittled defense counsel and exhibited through his tone of voice and facial expressions his contempt for the defense -- all in the presence of the jury. Moreover, the judge exacerbated his misbehavior by impeding the defense efforts to make an adequate appellate record of the court's nonverbal conduct. Finally, the judge's constant threats, mostly outside the jury's presence, to impose sanctions upon defense counsel, effectively chilled their vigorous advocacy.
The combined effect of what the judge said and implied to the jury about the credibility and competence of defense counsel and -- by implication -- about the merits of the defense necessarily prejudiced the defendants' cases in the eyes of the jury. See United States v. Hickman, 592 F.2d 931, 933-34 (6th Cir. 1979) (outright bias or belittling of counsel ordinarily constitutes reversible error); United States v. Dellinger, 472 F.2d at 387 (judge's deprecatory comments and antagonistic attitude toward defense prejudiced jury); United States v. Cassiagnol, 420 F.2d 868, 878-79 (4th Cir.), cert. denied, 397 U.S. 1044 (1970) (judge's exhaustive questioning of defendant and critical comments of defense counsel required new trial); Peckham v. United States, 210 F.2d at 702 (judge's hostile comments to defense counsel demonstrated bias and necessitated reversal of conviction).
(a)Verbal Misconduct in Jury's Presence
The trial judge mistreated defense counsel by berating, threatening, and belittling them in front of the jury, thereby diminishing the jury's respect for the defense. Although much of the court's anger was directed toward Mr. xxxxxxx's lead counsel, William Murphy, none of the defense attorneys escaped the judge's wrath. During the cross-examination of a government witness in the early stages of the trial, Murphy asked to approach the bench because the judge was hollering at him while sustaining objections by the prosecutor. (9/21/89 Tr. 175) When the judge in the jury's presence denied hollering at him, Murphy responded that he "saw it differently[,]" and again requested to approach the bench. (9/21/89 Tr. 175) Without responding to Murphy's second request for a bench conference, the court commented in front of the jury that, "[w]e see a lot of things differently, but that's alright." (9/21/89 Tr. 176) Although the judge had the right to make a record in response to Murphy's complaint that the court was hollering at him, the judge's response, which included a gratuitously confrontational comment that must have discredited counsel in the eyes of the jury, should have been made outside the presence of the jury. See United States v. Spears, 558 F.2d 1296, 1298 (7th Cir. 1977) (conviction reversed where judge's castigation of defense counsel in jury's presence deprived defendant of fair trial).
As the trial wore on, the judge's patience with defense counsel wore thinner. The court's critical and often sarcastic comments in the jury's presence implied that defense counsel were inept and unworthy of the jury's trust. (See 9/26/89 Tr. 91-92 (court explains to Murphy what constitutes leading question); 9/29/89 Tr. 128-29 (court states that it will become angry if Murphy tries to "play judge and jury"); 10/25/89 Tr. 21 (court advises Murphy that he can resume cross-examination provided he does it "properly"); 10/25/89 Tr. 146-47, 158-59 (court denies request for bench conference and comments that defense counsel is presumed to know the law); 10/31/89 Tr. 31, 36-39 (court comments that Murphy's cross-examination on government witness's racial bias is "wholly improper"); 11/3/89 Tr. 162 (court advises Murphy that "we," apparently referring to court and prosecution, want him to ask questions "properly"); 11/9/89 Tr. 112-13 (court comments that Murphy objects to every question)).
Although the trial judge denied a mistrial motion based upon his angry and deprecatory remarks in front of the jury (10/24/89 Tr. 191-96), certainly such comments "are subject to special scrutiny because of the recognized fact that 'the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or inclination is received with deference, and may prove controlling.'" United States v. Dellinger, 472 F.2d at 386 (quoting Starr v. United States, 153 U.S. at 626). See also United States v. Poindexter, 942 F.2d 354, 359-60 (6th Cir.) (trial judge's comments criticizing defense counsel in jury's presence not harmless), cert. denied, 112 S.Ct. 615 (1991); Zebouni v. United States, 226 F.2d 826, 827 (5th Cir. 1955) (trial judge's comments in presence of jury that questions asked by defense counsel were "foolish" deprived defendant of fair trial); Peckham v. United States, 210 F.2d at 702 (trial judge's degrading and prejudicial remarks directed at defense counsel necessitated new trial).
In the instant case, in addition to rebuking and degrading defense counsel, the trial judge -- again in the presence of the jury -- improperly threatened to impose sanctions on the defense lawyers. On one occasion, when Murphy's co-counsel, James Robertson, tried to press a legitimate point concerning what the defense claimed was an improper in-court identification procedure, the judge angrily ordered him to be seated and warned him that "if this conduct continues, you know what's going to happen." (9/26/89 Tr. 82-86) When the defense continued to object to the identification procedure, the court threatened, albeit reluctantly, to sanction the next defense lawyer "that pops up[.]" (9/26/89 Tr. 100-101) During the direct examination of a different government witness, when Murphy persisted in his objection to a claimed leading question, the judge admonished him and warned that "if you do it once more, you know what's going to happen." (9/28/89 Tr. 156)
The court's antagonistic comments and threats of sanctions obviously discredited defense counsel in the eyes of the jury. Although a trial judge must regulate the conduct of the trial and supervise witness examinations, many of the court's caustic remarks and heavy-handed warnings were without basis. See United States v. Kelley, 314 F.2d 461, 463-64 (6th Cir. 1963) (judge's baseless threat made in presence of jury to hold lawyer in contempt for repeating question in effort to comply with erroneous ruling deprived defendant of fair trial).
Even if a defense attorney occasionally deserved to be admonished, the judge could have done so outside the jury's presence and not have shown the jury his displeasure with the defense. In sum, the court's reprimands and threats directed toward defense counsel and made in the presence of the jury -- when combined with the court's unequal treatment of the parties -- must
have further aligned the judge with the prosecution in the eyes of the jury. Certainly, the jury could have inferred from the judge's conduct that because the defense attorneys were not to be trusted, the defense itself was not credible. Therefore, the judge's verbal attacks on defense counsel in the jury's presence deprived the defendants of their right to an impartial tribunal.
(b)Nonverbal Misconduct in Jury's Presence
Verbal comments, admonitions, rebukes, and threats made in the presence of the jury are not the only means by which trial judges can impermissibly influence a jury and violate a defendant's right to due process. Improper judicial influence can also be expressed through more subtle, nonverbal messages, such as facial expressions, gestures, and tone of voice. See Peter D. Blanck, Robert Rosenthal & LaDoris Hazzard Cordell, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 Stan. L. Rev. 89, 137-38 (1985) (discusses findings of empirical study of how trial judges' expectations for trial outcome can predict their unintended verbal and nonverbal behavior and verdicts returned by juries). As stated by one court, "[t]he basic requirement is one of impartiality in demeanor as well as in actions." United States v. Frazier, 584 F.2d 790, 794 (6th Cir. 1978). As this Court put it, a trial judge "may not do by indirection that which it may not do directly . . . it may not coerce, or attempt to coerce, a jury by gesture anymore than it may do so by word[.]") Billeci v. United States, 184 F.2d at 401 (citing Vinci v. United States, 159 F.2d 777, 778 (D.C. Cir. 1947)).
This Court has long recognized the need for defense counsel to make a record of the trial judge's facial expressions, inclinations, gestures, and other actions which might support a claim of bias. See United States v. McCord, 509 F.2d 334, 346 n.34 (D.C. Cir. 1974) (en banc), cert. denied, 421 U.S. 930 (1975); United States v. Green, 429 F.2d 754, 761 (D.C. Cir. 1970); Butler v. United States, 188 F.2d 24, 25 (D.C. Cir. 1951); Billeci v. United States, 184 F.2d at 401.
In the instant case, despite the trial judge's efforts to thwart them, defense counsel made a record of the court's demeanor, gestures, and tone of voice that were prejudicial to the defense. The objectionable conduct involved the judge's angry and gruff manner in responding to defense objections (9/20/89 Tr. 91-92; 9/21/89 Tr. 175-76; 9/26/89 Tr. 113; 9/28/89 Tr. 241-43; 10/16/89 Tr. 60-63; 10/17/89 Tr. 194-95; 11/13/89 Tr. 123-28; 11/20/89 Tr. 39-41), his disgusted facial expressions during cross-examination of government witnesses (9/25/89 Tr. 219-20), and his "markedly different" facial expressions, demeanor, and tone of voice during the testimony of defense witnesses (11/20/89 Tr. 161-65).
On four separate occasions, the defense unsuccessfully moved for a mistrial, citing nonverbal misconduct by the court. (9/20/89 Tr. 87-93; 10/16/89 Tr. 60-63; 10/17/89 Tr. 194-95; 11/20/89 Tr. 161-65) Taken in conjunction with the judge's verbal rebukes of and threats against defense counsel in the presence of the jury, his nonverbal demeanor contributed to the denial of the defendants' right to a fair and impartial trial. See Billeci v. United States, 184 F.2d at 401-03.
The trial judge in this case exacerbated his frequent mistreatment of defense counsel by impeding their right and, indeed, obligation to object to his verbal comments and to make a record of his nonverbal behavior in front of the jury. In this regard, as discussed above, the court frequently denied defense counsel access to the bench to argue objections, refused to permit the defense to make continuing objections to specific lines of questioning, and required motions in limine to be in writing, even in instances where an immediate ruling could have prevented evidence from being erroneously admitted against the defense.
Moreover, the court reacted angrily and severely criticized defense counsel for their efforts to make a good appellate record (9/21/89 Tr. 177-81; 9/25/89 Tr. 219-20; 10/16/89 Tr. 60-63; 11/13/89 Tr. 123-28; 11/20/89 Tr. 161-65), sarcastically commenting that they were trying the case for the "International Court at the Hague" or for the "Court of Appeals." (9/22/89 Tr. 44; 10/23/89 Tr. 33) The trial court also rebuked defense counsel for continually making arguments "for the record" (10/20/89 Tr. 218-19) and admonished Murphy that if he did not stop using the common term of art, "let the record show," he would be "in trouble." (10/26/89 Tr. 70-71)
In light of this Court's insistence that defense counsel make an adequate record for appellate review of a trial judge's nonverbal behavior, the trial court's efforts to prevent counsel from doing this are particularly egregious and should be considered in evaluating the court's bias against the defense in this case. Cf. Butler v. United States, 188 F.2d at 25-27 (trial court committed reversible error in refusing to permit defense attorney to make record of judge's facial expressions and gesticulations).
(c)Misconduct Outside Jury's Presence
Because the trial judge's conduct described in the previous section occurred in the presence of the jury, it was extremely detrimental to the defense. Although other actions of the judge, such as finding several defense lawyers in "contempt," frequently threatening to impose sanctions, and rebuking counsel, occurred outside the presence of the jury, because they necessarily chilled defense counsel's vigorous advocacy, they were no less prejudicial. Moreover, the judge's actions "reveal[ed] such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky v. United States, 114 S. Ct. 1147, 1157 (1994) (judge's critical or hostile remarks during trial are grounds for recusal under 28 U.S.C. § 455(a) only when they evidence deep-seated favoritism or antagonism as would make fair judgment impossible).
Early in the trial, the judge expressed his displeasure with the defense by commenting that whatever the court did was not satisfactory to the defense attorneys. (9/19/89 Tr. 52) On another occasion, the court commented in a similar vein that even though it had been "provoked" by defense counsel and their clients, it had tried to be fair to all of them. (9/29/89 Tr. 53) As the trial progressed, the judge's growing animosity toward Mr. Murphy spilled over against all defense counsel. During a heated exchange at a bench conference in which the judge accused Murphy of speaking too loudly, Murphy denied the accusation and responded that the other defense lawyers would verify that they were unable to hear what he had stated the bench. (11/21/89 Tr. 21) The court's rejoinder -- that the other attorneys would verify "anything" Murphy said -- is further evidence that the judge viewed defense counsel as his opponents whose purpose was to scuttle the trial.
Moreover, the judge's inappropriate response was highly prejudicial because, due to technical difficulties with the microphones in the courtroom at that time, the jury might have overheard the court's remarks made during that bench conference. (11/21/89 Tr. 19-33, 66-82) Although the court did conduct a hearing ostensibly to determine whether the jury overheard the bench conference, the only witness at the hearing was a deputy U.S. Marshal who testified that he was seated in the well of the courtroom during the bench conference and did not hear anything that occurred at the bench. (11/21/89 Tr. 66-82) No jurors were interviewed or called as witnesses at the hearing. Given the potentially devastating effect on the defense if the jury overheard the court's comment implying that the defense was acting in concert -- especially, in a conspiracy case -- the court should have conducted a fuller inquiry. Cf. Young v. United States, 346 F.2d at 795-96 (conviction reversed where court failed to conduct inquiry to determine whether jury heard and was prejudiced by judge's severe criticism of defense counsel at bench conferences).
In addition to its criticism of defense counsel both in and out of the presence of the jury, the court continuously threatened to hold attorneys in contempt or to impose other unstated sanctions upon them. This occurred no less than twenty times during the trial. (See, e.g., 9/11/89 Tr. 1928-1938, 9/21/89 Tr. 177; 9/22/89 Tr. 159-61; 9/26/89 Tr. 86, 100-01, 188-90; 9/28/89 Tr. 156, 241-43; 10/3/89 p.m. Tr. 26-27; 10/17/89 Tr. 209-10; 10/20/89 Tr. 156-57, 169-70; 10/23/89 Tr. 11-13; 10/25/89 Tr. 129; 10/26/89 Tr. 106, 174-75; 10/27/89 a.m. Tr. 2-3; 11/1/89 Tr. 57-59; 11/3/89 Tr. 88-89) Although there is not sufficient space here to discuss each of these threats, this Court can review the pertinent transcript excerpts and satisfy itself that the trial judge's actions were unwarranted because in each instance the particular defense attorney did not violate "the standards of proper courtroom decorum." United States v. Seale, 461 F.2d 345, 366-67 (7th Cir. 1972), cert. denied, 420 U.S. 990 (1975). Moreover, the attorneys' conduct that occasioned the contempt threats by the court did not approach the type of "misbehavior" addressed by the criminal contempt statute, which must be such as to obstruct the administration of justice. See 18 U.S.C. § 401(1). In the instant case, the trial judge failed to recognize the crucial distinction between vigorous advocacy and obstructionism and held three of the defense attorneys in contempt during the trial for conduct that constituted zealous advocacy but clearly was not contumacious. (10/27/89 p.m. Tr. 104-06; 11/15/89 Tr. 123-25; 11/27/89 Tr. 181-85)
The Supreme Court has observed that "[a]n independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice." In re McConnell, 370 U.S. 230, 236 (1962). Appellate courts have recognized that because defense attorneys must be given broad latitude in zealously representing their clients, trial judges cannot be arbitrary or provide counsel with an inadequate opportunity to argue their positions. In re Dellinger, 461 F.2d 389, 398-399 (7th Cir. 1972), cert. denied, 420 U.S. 990 (1975). The ethical codes of the legal profession also recognize and promote the concept of vigorous advocacy, requiring that a lawyer represent "a client zealously and diligently." District of Columbia Rules of Professional Conduct, Rule 1.3 (1991); See also, ABA Standards for Criminal Justice, The Defense Function, Standard 4-1.2(b) (3d ed. 1993) (defense lawyer has basic duty to "advocate with courage and devotion and to render effective, quality representation").
Thus, defense counsel must be given substantial leeway to press a claim "even if it appears far-fetched and untenable. . . ." Sacher v. United States, 343 U.S. 1, 9 (1952); see also In re Dellinger, 461 F.2d at 399 ("counsel must be given substantial leeway in pressing his contention, for it is through such colloquy that the judge may recognize his mistake and prevent error from infecting the record"). Reviewed in light of these principles, the defense attorneys' conduct was not contemptuous. The record in this case clearly undermines the trial judge's actions in holding three of the defense attorneys in contempt and threatening to sanction many of the other lawyers, as well. The combination of baseless threats and unwarranted contempt findings necessarily had a chilling effect on defense counsel's vigorous advocacy (see, e.g., 10/24/89 Tr. 268-69; 10/27/89 p.m. Tr. 146-47; 11/8/89 Tr. 70; 11/22/89 Tr. 91-102), and constitutes further evidence of the court's bias against the defense.
3. The Cumulative Effect of the Judge's Behavior
The trial judge's behavior in this case precluded "that atmosphere of austerity which should especially dominate a criminal trial and which is indispensable for an appropriate sense of responsibility on the part of court, counsel and jury." Offutt v. United States, 348 U.S. at 17. The examples of the court's misconduct discussed above do not stand alone. Instead, they stand intertwined with the court's ordering of the anonymous jury (see Point I), its refusal to transfer this case to another district even though this community was saturated with prejudicial pretrial publicity (see Point II), and its restrictive view of the defendants' discovery and cross-examination rights (see Point IV). Taken individually, any particular act of misconduct by the judge might be regarded as harmless given the difficulties inherent in a long and complex trial. However, the totality of the trial judge's misconduct -- his unequal treatment of the defense and prosecution, his critical remarks and hostile actions both in the presence and absence of the jury, his constant threats to impose sanctions on defense counsel, and his unwarranted contempt findings -- combined to deny the defendants the fair trial before an impartial judge that is a basic requirement of due process. See Johnson v. Metz, 609 F.2d 1052, 1057 (2d Cir. 1979) (Newman, J., concurring). "In a case of this nature, where determination of guilt or innocence rest largely on whether the jury credits the testimony of the chief government witness[es] . . ., avoidance of the appearance of bias by the trial judge takes on added importance. The conduct of the trial as a whole must be scrutinized carefully." United States v. Candelairia-Gonzalez, 547 F.2d 291, 297 (5th Cir. 1977).
The decision in United States v. Dellinger, 472 F.2d at 385-91, is instructive on this point. There, in a trial of eight defendants on charges arising out of the Democratic National Convention in Chicago in 1968, the judge frequently made remarks in the presence of the jury that were disparaging of defense counsel and their case. While the court of appeals observed that each individual comment by the judge was not very significant, it pointed out that "cumulatively, they must have telegraphed to the jury the judge's contempt for the defense." Id. at 387. Thus, the Seventh Circuit concluded that the trial judge's conduct would require reversal of the defendants' convictions. Id. at 391. See also United States v. Singer, 710 F.2d 431, 437 (8th Cir. 1983) (reversing conviction due to improper comments of trial judge where review of entire record convinced court that conduct of trial fell below exceptable level of fairness and appearance of fairness).
Here, too, the conduct of the trial judge, taken as a whole, must have left the jury with a strong impression of the court's belief that the defense was not credible and, therefore, that the defendants were most likely guilty. Because this improper impression interfered with the jury's ability to freely perform its independent fact-finding function, the defendants did not receive a fair trial before an impartial tribunal.
A trial judge must not only be impartial but also must conduct the trial in such a way as to convey his impartiality to the jury. In the instant case, the trial judge's words and conduct necessarily conveyed an impression of bias against the defense, the inevitable impact of which was to convince the jury that the judge believed the defendants to be guilty. While it may be true that the judge's animosity in this case was directed more toward defense counsel than the defendants themselves, "the judge who is so hostile to a lawyer as to doom the client to defeat deprives the client of the right to an impartial tribunal." Walberg v. Israel, 766 F.2d 1071, 1077 (7th Cir.) (citation omitted), cert. denied, 474 U.S. 1013 (1985). In dissenting from the court's affirmance of convictions after a trial dominated by angry exchanges between the trial judge and defense counsel, Chief Judge Mikva recognized in words equally applicable to these defendants that:
Almost lost in the clamor of the trial were the defendants, the individuals whose fate rested in the proceedings at hand. They quite possibly wondered to themselves whether they could receive a fair trial in this courtroom, in front of this jury. They were right to wonder.
United States v. Logan, 998 F.2d at 1033 (Mikva, C.J., dissenting in part).
The court's antagonistic and unfair treatment of defense counsel in this case crossed the constitutional line which separates the neutral judge from the adversarial parties. By suggesting that defense counsel were employing improper tactics in an effort to circumvent the court's rulings and by criticizing them in front of the jury, the trial judge, clothed with the extraordinary power of his position, effectively shattered in the eyes of the jury defense counsel's image as forthright and competent advocates for the defense. This error, particularly in the context of the court's restriction of cross-examination of key prosecution witnesses in a highly publicized trial involving a jury which was told that its anonymity was for its own protection, operated to deny the defendants a trial by an impartial tribunal and violated their fundamental due process right to a fair trial. This right must be strictly enforced in all cases but particularly in a case such as this one in which a guilty verdict carried with it the likelihood of a lengthy mandatory prison sentence up to life imprisonment without parole. Because the defendants did not receive the fair trial to which they are entitled, their convictions cannot stand. Thus, the defendants must be granted a new trial before an impartial judge and a jury untainted by the court's improper influence. Our Constitution, which embodies the cherished notions of fundamental fairness and justice under the law, requires no less.
THE COMBINED EFFECT OF RESTRICTIONS ON CROSS-EXAMINATION OF KEY PROSECUTION WITNESSES AND NON-DISCLOSURE OF DISCOVERABLE EVIDENCE DEPRIVED DEFENDANTS OF THEIR RIGHTS TO CONFRONTATION AND DUE PROCESS OF LAW
Due process requires that the government disclose upon request all exculpatory as well as information that could be used to impeach the government's witnesses. Brady v. Maryland, 373 U.S. 83 (1963). This requirement of candor by the sovereign encompasses information which bears upon the credibility of its witnesses as well as matters more directly material to guilt or innocence. United States v. Bagley, 473 U.S. 667 (1985); Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959). In addition to the government's constitutional discovery obligations, it also has a statutory duty under the Jencks Act, 18 U.S.C. § 3500, to provide the defense with certain "statements" of prosecution witnesses.
The defense is not only entitled to receive Jencks Act/Brady/ Giglio materials, it is entitled to use them in defending against the charges, which includes their use in cross-examination of government witnesses. In this regard, the Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him." This right is fundamental and essential in our system of justice and is a minimum requirement of due process. Dutton v. Evans, 400 U.S. 74, 79 (1970); Pointer v. Texas, 380 U.S. 400, 403, 405 (1965). An accused exercises the right to confrontation primarily by cross-examining witnesses. Davis v. Alaska, 415 U.S 308, 315-16 (1974). Thus, the right of confrontation 'means more than being allowed to confront the witness physically.' Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (quoting Davis, 415 U.S. at 315). The full cross-examination is especially important where, as here, the witnesses to be cross-examined were the government's principal accomplice/informant witnesses. United States v. Anderson, 881 F.2d 1128, 1140 (D.C. Cir. 1989); United States v. Leonard, 494 F.2d 955, 963 (D.C. Cir. 1974); United States v. Fowler, 465 F.2d 664, 666 (D.C. Cir. 1972).
In this case, the prosecution violated its constitutional and statutory duty to make timely disclosure to the defense of discoverable evidence and material, while the trial court violated its duty to allow wide latitude in cross-examination of prosecution witnesses to assure that the defendants' confrontation rights were satisfied. The combination of these prosecutorial and judicial violations resulted in the denial of the defendants' collective right of confrontation and due process of law. Accordingly, their convictions must be reversed.
This high profile case involving allegations of drug dealing on a massive scale was, in reality, nothing more than the prosecution of a neighborhood family and friends for violations of the controlled substances act. The government's presentation of evidence fell into three distinct categories: (a) police observations, undercover purchases and executed search warrants, (b) wiretap and consensual tape conversations of co-conspirators, and (c) testimony from eleven informants who portrayed themselves as close associates who were familiar with the defendants and the drug operation.
Separating this matter from the garden-variety drug case was the parade of cooperating witnesses who adddressed the various levels of the drug organization and the roles of the numerous defendants. These informants were distilled into groups: street-level dealers, stash house operators, transcontinental couriers, suppliers and wholesale distributors. Each of them presented a slice of the alleged hierarchy and its workings.
For example, Cornelius McDonald, Richard Farmer, and Linda Wilson testified about selling cocaine on Morton and Orleans Place (the "Strip"), (9/21/89 Tr. 118-119, 159-160; 9/26/89 Tr. 56, 60-62); while Denise Johnson and Kathy Sellers focused on the storage and transportation of drugs. (9/29/89 Tr. 96-98; 10/3/89 Tr. p.m. 41-42, 49-50) Stevenson McArthur, a wholesale buyer and distributor with his own organization, testified about his personal drug dealings with xxxxxxx xxxxxxx, (9/28/89 Tr. 151-152, 163-164, 166-168, 175); in contrast to Denise Johnson and James Minor, childhood friends of some of the defendants who dealt with Dave McCraw and the lower echelon. (9/29/89 Tr. 65, 96-98, 105-106; 10/16/89 Tr. 65, 101-104, 131-132, 158-159) James Mathis and Royal Brooks, two of the transcontinental couriers, described trips across country to California and the passage of large sums of money for transfer of multi-kilos of cocaine to Washington, D.C. (11/01/89 Tr. 209-235; 11/9/89 Tr. 4-7, 40-55, 87-94) One of Brooks' girlfriends, Desiree Murphy, testified about Brooks' relationship with xxxxxxx xxxxxxx and her trip, with Columbus Daniels, to her boyfriend's apartment following Brook's arrest to remove incriminating evidence, 93 kilograms of cocaine secreted therein. (11/15/89 Tr. 231)
These ten cooperating witnesses provided the building blocks for the government's star witness, Alta Rae Zanville, who testified that she permeated all levels of the putative organization, e.g., by cutting and bagging cocaine in “stash” houses (10/20/89 Tr. 71), delivering drugs and money (10/24/89 Tr. 14-15), acting as a courier of money between the east and west coasts (10/20/89 Tr. 36-38, 49-51, 53-54), and purchasing cars for co-conspirators. (10/20/89 Tr. 72-74) Without her, the evidence would have supported buyer-seller relationships, mini-conspiracies, or a series of drug sales by unrelated parties to undercover police.
In addition to testifying about her own multiple roles in the organization, Zanville described her personal relationship with xxxxxxx xxxxxxx when she testified about the favors she undertook for "Sweetie", i.e., xxxxxxx, (10/20/89 Tr. 126) such as renting an apartment in his name at Buchanan House in Arlington, Va. (10/19/89 Tr. 135-136), traveling as xxxxxxx's guest to Las Vegas for the Leonard-Hagler fight (10/19/89 Tr. 140-47), purchasing plane tickets (10/20/89 Tr. 16-19), paying off his Jaguar and decorating his house with custom-made furniture (10/20/89 Tr. 56-59), and arranging for the purchase and delivery of his Range Rover. (10/20/89 Tr. 12-14)
With the exception of defendant Keith Cooper, she identified various other defendants in the organization: Bernice and David McCraw (10/24/89 Tr. 22); Tony Lewis (10/20/89 Tr. 35-38); Armaretta Perry (10/20/89 Tr. 8); Melvin Butler (10/19/89 Tr. 150-152, 154); Emanuel Sutton (10/23/89 Tr. 88-89); James Antonio Jones (10/24/89 Tr. 22); Jerry Millington (10/24/89 Tr. 22); and John Monford (10/23/89 Tr. 84-86). Finally, Zanville identified the defendants' voices on taped conversations which she secretly recorded and in which she elicited incriminating hearsay concerning many of the alleged co-conspirators.
In sum, Zanville pulled together the testimony of all the civilian witnesses to portray an established organization formed for the sole purpose of distributing cocaine in Washington, D.C. Against this backdrop, the defendants sought to avail themselves of the most powerful instrument of truth -- cross-examination.
A.Standard of Review
Although Jencks Act issues are subject to reversal only for an abuse of discretion, suppression of evidence favorable to the defense requires reversal where there is any reasonable probability that the suppressed evidence would have materially affected the verdict. United States v. Derr, 990 F.2d 1330, 1335 (D.C. Cir. 1993). This question of law is reviewed de novo.
The district court's prohibition of all inquiry into a particular area of cross-examination is a legal determination which is reviewed de novo. Delaware v. Van Arsdall, 475 U.S. at 678-681. On the other hand, where there is a limitation rather than a complete deprivation, on a legitimate area of cross-examination, the limitation is reviewed under an abuse of discretion standard. United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993).
B.Hiding the Ball: Nondisclosure of Brady, Giglio and Jencks Materials In A Timely Fashion Denied Defense Effective Cross-Examination and Interfered With Their Ability to Present A Defense
The government failed to disclose to the defense impeachment evidence relating to one of its "snitch" witnesses, Stevenson McArthur, and evidence tending to show that its "star" witness, Alta Rae Zanville, had been transporting drugs not as a member of the xxxxxxx conspiracy, as she claimed, but as a high-ranking member of a separate "drug organization." The nondisclosure of this evidence precluded the defense from effectively cross-examining these key witnesses and deprived them of their right to develop their theory of defense that Zanville actually was working for someone other than xxxxxxx.
Youthful entrepreneur Stevenson McArthur testified that he first encountered xxxxxxx xxxxxxx at a 7-11 in 1986, when he admired xxxxxxx's car and asked whether xxxxxxx might "do something for [him]." (9/28/89 Tr. 142, 145) Later, McArthur and a family friend met with xxxxxxx at 407 M Street, and persuaded xxxxxxx to "front" $1,300 worth of drugs to them. (9/28/89 Tr. 149, 151-152) According to McArthur, he purchased half-kilos from xxxxxxx or a representative of xxxxxxx's on four subsequent occasions. (9/28/89 Tr. 163-164, 166, 167-168, 175) Following McArthur's arrest in August of 1988 in Virginia (9/28/89 Tr. 180), he entered a plea of guilty in October, 1988 (9/28/89 Tr. 182) to two counts of distribution of 50 grams or more of cocaine base (9/28/89 Tr. 141) was released on $7,500 bond pending sentencing (9/28/89 Tr. 204) and began to cooperate with the government. (9/28/89 Tr. 182, 216-217) By the time of his testimony at trial, he had been sentenced to 12 years, 7 months incarceration, (9/28/89 Tr. 141) and was seeking a reduction in sentence. (9/28/89 Tr. 247)
The path of cooperation with the government was not entirely smooth for Mr. McArthur. He testified twice before the grand jury and on the second occasion corrected a lie that he told in his first testimony. All references to the actual content of the lie were redacted in the Jencks material provided to the defense. [A. VI. 271] However, the court denied the defense request for release of the unredacted grand jury testimony. (9/28/89 Tr. 133)
Perjury by a government witness during trial, known to the government, is clearly Brady evidence which must be disclosed. See Giglio; Napue. Additionally, inconsistent statements made by an important witness must be disclosed as impeachment evidence under Brady. See United States v. Starusko, 729 F.2d 256, 260-61 (3d Cir. 1984); United States v. Enright, 579 F.2d 980, 989 (6th Cir. 1978). Thus, the district court erred in refusing to order the government to disclose this powerful impeachment evidence.
After he began to cooperate with the government, McArthur attempted to engage in a consensual telephone conversation with xxxxxxx xxxxxxx. On October 27, 1988, he paged a number which had been used by xxxxxxx on previous occasions. (11/24/89 Tr. 73) The man who returned the page obviously did not know Stevenson McArthur. [A. VI. 271] Neither the tape nor the relevant DEA paperwork was provided to the defense as Jencks material for Stevenson McArthur. McArthur never mentioned the attempted telephone call during his testimony. The defense found out that McArthur had made the call long after the witness left the stand. As the defense had indicated at the time of McArthur's testimony, xxxxxxx did not know the man. Had the defense been provided the Jencks material prior to or during McArthur's testimony, cross-examination would have demonstrated definitively that the government's canary, who testified that xxxxxxx had sold him over two kilograms of crack was singing off-key.
The tape recording of McArthur's telephone call is clearly a producible "statement" under the Jencks Act. Similarly, interview notes and reports relating to McArthur's taped conversation also constituted Jencks materials. See United States v. Harrison, 524 F.2d 421, 423 (D.C. Cir. 1975) (original interview notes taken by FBI agent are potentially discoverable under Jencks Act). Moreover, because the tape reflected that xxxxxxx did not even know McArthur, notwithstanding McArthur's testimony that he purchased from xxxxxxx large quantities of drugs on numerous occasions, the tape affected McArthur's credibility and, therefore, constituted Brady evidence. The government's suppression of this discoverable evidence thwarted defense efforts to impeach an important prosecution witness.
On two occasions, the defendants moved the court for an order to unseal Alta Rae Zanville's magistrate file. [A. I. 229, 275] The requests were denied. At trial, Zanville testified that for three or four months prior to her arrest on December 19, 1988, she had transported 7.5 kilos of cocaine. (10/20/89 Tr. 82) At the time of her arrest, she had 1.5 kilograms of cocaine in her possession. (10/20/89 Tr. 84)
The government must disclose "evidence that may reasonably be considered admissible and useful to the defense." Griffin v. United States, 183 F.2d 990, 993 (D.C. Cir. 1950). See Barbee v. Warden, 331 F.2d 842, 844 (4th Cir. 1964) (prosecution should have disclosed existence of evidence tending to show that defendant's revolver was not used in shooting). Because the Zanville file demonstrated that she was working for other drug dealers when she claimed to be employed by xxxxxxx, it would have allowed the defense to develop the theory that her actual employment was with other drug dealers during the time she claimed to be transporting drugs for xxxxxxx. Although the magistrate's file on Zanville was unsealed and disclosed to the defense after the trial, the failure to disclose timely the Brady material in the file violated the defendants' due process rights because, "had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985).
In connection with Zanville's testimony, the court refused to require the government to produce (or allow the defense to subpoena) items recovered in a search of her home on the date of her arrest. (10/24/89 Tr. 6-11; 31-32) Zanville was not required to produce her address book, which contained names of various drug dealers, even though she had it with her in court. (10/25/89 Tr. 16) Like the magistrate's file, the address book would have been useful in developing the line of defense that Zanville had been working not for xxxxxxx but for other drug dealers. Therefore, the government's suppression of clearly exculpatory evidence which could have been utilized by the defense to discredit the government's star witness and to develop and present a viable theory of defense deprived defendants of their right to due process of law.
C.The Court's Specific Restrictions of Relevant Areas Of Cross-Examination
The government's case against the defendants was based, in large part, on the testimony of its accomplice/informant witnesses. The theory of defense was essentially that these witnesses lied about the defendants in order to save themselves. Thus, defense counsel attempted to cross-examine the witnesses about not only explicit government promises of leniency but also to demonstrate '"conduct which might have led [that] witness[es] to believe that [their] prospects for lenient treatment by the government depended on the degree of [their] cooperation."' United States v. Leonard, 494 F.2d at 963 (quoting United States v. Campbell, 426 F.2d 547, 549 (2d Cir. 1970)). However, the trial court's restrictive rulings kept the bright lights of cross-examination and impeachment from shining on the prosecution's key witnesses. The resulting curtailment of cross-examination in these crucial areas was a denial of confrontation.
1.Restrictions on Cross-Examination of Mandatory Minimum Penalties and Guideline Sentences Facing Government Witnesses
With one exception , the court essentially refused to allow defense counsel to cross-examine the government informants about the mandatory minimum sentences and the guidelines that pertained to their potential exposure to incarceration. For example, the court did not allow counsel to ask Richard Farmer, who had the potential to be charged as a co-conspirator in this case, whether he was aware of his exposure under the sentencing guidelines. (9/21/89 Tr. 204-209) Similarly, the court refused to allow counsel to ask Linda Wilson, a confessed drug user and adjudicated addict (9/26/89 Tr. 155), who testified that she acted as a lookout and distributed cocaine for xxxxxxx (9/26/89 Tr. 58, 62), if she was aware of the mandatory minimum penalty of five years for a conviction for distribution of five grams or more of crack. The court stated its rationale:
THE COURT: Because under 3553, even then the individual defendant can get probation. I know what I'm talking about. It's subsection E. That's why I ruled the way I did.
MR. MURPHY: Judge, she can't get probation without the government's intervention.
(9/26/89 Tr. 172). Finally, although defense counsel elicited from Zanville that she was aware of the mandatory minimum of five years for the crime to which she pled, the court sustained an objection to the question of whether she knew that the only way to avoid that penalty was to provide "substantial assistance." (10/26/89 Tr. 40-41)
In Delaware v. Van Arsdall, 475 U.S. at 679, the Court held that a defendant was denied his constitutional right to effective cross-examination where "the trial court prohibited all inquiry into the possibility that [the witness] would be biased as a result of the State's dismissal of his pending public drunkenness charge." Although the trial court in this case typically permitted defense counsel to elicit on cross-examination the maximum penalty facing the various "snitch" witnesses, it precluded all inquiry into the witnesses' potential guideline sentences and their understanding of the mandatory minimum/substantial assistance sentencing scheme.
Although the defense was permitted to cross-examine on statutory maximum penalties, those penalties are largely irrelevant under the Sentencing Guidelines because the sentencing court is limited to the penalties ranges prescribed by the Guidelines except in relatively unusual cases in which departures are permitted. See 18 U.S.C. § 3553. "Because the Guidelines have largely replaced the statutes as the determinants of the maximum penalties facing criminal defendants," the court should have permitted cross-examination on both the statutory maximum penalties and the applicable guideline ranges. United States v. Horne, 987 F.2d 833, 839 (D.C. Cir.) (Buckley, J., writing separately for the court) (recommending that district court make presentence reports available to defendants before taking guilty pleas because of preeminence of guideline ranges over statutory maximum penalties), cert. denied, 114 S.Ct. 153 (1993).
Since sentences under the guidelines occur within a fixed range, and parole has been abolished, a more accurate -- and compelling -- cross-examination would include the sentences which the witnesses were certain to receive if they did not cooperate. Thus, the jury never learned that the witnesses could avoid mandatory prison sentences only if the government informed the sentencing court that they had provided substantial assistance in the investigation and/or prosecution of other individuals. See U.S.S.G. § 5K1.1. Because this evidence goes directly to the witness's motive to cooperate and testify favorably for the government, the defense should have been permitted to elicit this critical information.
2.Restriction on Use of Certain Terms to Show that Government Witnesses Were Liars.
The Supreme Court has recognized that one the purposes of cross-examination is to "[e]xpose falsehood and bring[ ] out the truth[.]" Smith v. Illinois, 390 U.S. 129, 131 (1968). Thus, the primary objective of impeaching a witness is to show that the witness is either lying or honestly mistaken. Because the government so heavily relied on accomplice/informant witness testimony in this case, the objective of the defense was to show that the witnesses were liars.
However, the defendants' attempts to expose the government's informants as liars were foiled by the court's edict that the words "lie" and "liar" were prohibited in his courtroom. [A. I. 269] (11/3/89 Tr. 58) The command obtained through closing arguments and the court continued to observe it during jury instructions. The effect was a court ordered mutation of perjurers and fibbers.
Compliance with the rule was particularly difficult during the cross-examination of Royal Brooks, who pled guilty to obstruction of justice in this case in connection with the lies he told during his initial grand jury appearance. (11/13/89 Tr. 24) When the defense requested Brooks' tax returns, stating its belief that the witness had made false and fraudulent representations on those documents, the court required the defense to substitute "incorrect" for "fraudulent." (11/13/89 Tr. 5) When defense counsel attempted to comply with the court's ruling by asking whether Brooks had filed a false credit application for a car, the court sustained the government's objection on the grounds that the word "false" called for a legal conclusion. (11/13/89 Tr. 113-114) The court sustained another objection when counsel then asked if Brooks had "lied" on the credit application. (11/13/89 Tr. 114) Finally, counsel was allowed to ask, over objection, whether Brooks had given "correct" information on his credit application. (11/13/89 Tr. 114) The court denied a defense motion for mistrial on the grounds that the judge's idiosyncratic refusal to allow the use of the terms "lie," "perjury," or "false" even when the evidence clearly called for the use of such commonly-accepted language, unfairly restricted their cross-examination rights. (11/13/89 Tr. 125-126)
James Mathis' confabulations at the time of his initial debriefing presented similar problems. Following his arrest on 12/29/88, Mathis made numerous false statements to law enforcement officers. (11/3/89 Tr. 32-33, 57) When defense counsel sought to cross-examine on the subject, the court called counsel to the bench to reiterate its position on the use of the word "lie," but finally ruled that if the witness actually had used the word "liar," and the defense could prove it by independent means, counsel could use that term. (11/13/89 Tr. 58-60)
In addition to precluding the defense from cross-examining witnesses on the fact that they "lied," the trial court compounded the error by extending the prohibition to closing arguments and jury instructions. For example, although Brooks and Mathis had admitted to committing perjury in prior court proceedings, in his instructions to the jury, the judge refused to use the term "perjury" and substituted the word "inaccurate" for "false." (11/29/89 Tr. 139-140; 12/1/89 Tr. 83) Thus, the court's refusal to permit the defense to use appropriate language to expose cooperating witnesses as liars prevented the defendants from effectively cross-examining them.
3.Restrictions on Cross-Examination Designed to Show that a Government Witness Was Obtaining His Testimony from the Numerous Press Accounts of the Case
During cross-examination, Royal Brooks admitted that he had followed the case on television, the newspapers, and through conversations with family, friends and case agents. (11/13/89 Tr. 130-135) When defense counsel sought to examine him about the articles he had read, the court sustained the government's objection. (11/13/89 Tr. 78-79) At the bench, although counsel proffered that the witness would admit that he had read virtually every relevant story in the Washington Times and the Washington Post, and that the line of questioning would document that an alternative source of the information contained in Brooks' testimony was readily available to him, the court would not change its ruling. (11/13/89 Tr. 80-81) As a result, the defense was unable to show that Brooks, an admitted perjurer, had no personal knowledge of many of the events described in his trial testimony.
4.Restrictions on Cross-Examination Intended to Establish Facts to Support Defense Case.
In addition to impeaching the credibility of government witnesses, another objective of effective cross-examination is to establish facts to support the defense theory or to contradict the testimony of government witnesses. This court has recognized that the defense is entitled to present through cross-examination its theory to the jury. United States v. Foster, 982 F.2d at 552, 554-55; United States v. Anderson, 881 F.2d at 1137 (citations omitted). However, the trial judge in this case unfairly curtailed cross-examination of key prosecution witnesses intended to establish evidence supporting the defense theory that the "snitch" witnesses, and not the defendants, actually committed the drug offenses alleged in the indictment.
For example, during the cross-examination of Kathy Sellers, the government objected to questions about the criminal problems of Sellers' boyfriend, Maurice Grayton, who was arrested in Prince Georges' County in December of 1988 for possession of drugs which were found in the car she drove. Codefendant David McCraw was arrested with Mr. Grayton. Despite a further proffer that the plea agreement stated that the government would advise other jurisdictions of her cooperation, and that drugs had been found in Ms. Sellers' apartment when it was burgled in March of 1988, the court precluded the line of questioning. (10/4/89 Tr. 47-58) Following further requests by the defense, (10/4/89 Tr. 97-98) counsel was allowed to ask about the cocaine that was found in her apartment when it was burgled, but was not allowed to inquire whether Grayton was a drug dealer. (10/4/89 Tr. 168-170) The court also refused to permit the defense to introduce in their case Grayton's conviction and arrest record. (11/22/89 Tr. 138-39; 11/24/89 Tr. 100) This line of cross-examination was designed to establish that Sellers was involved in drug activities with her boyfriend and not with the defendants, as she claimed.
The court imposed similarly extreme limitations on the cross-examination of Alta Rae Zanville regarding her involvement with others in drug trafficking. Specifically, counsel was not allowed to ask the identity of the source of the cocaine which she ferried at the time of her arrest in December 1988. (10/24/89 Tr. 48) On the evening of her arrest, Zanville made three telephone calls. (10/25/89 Tr. 100) Once again the defense was not permitted to learn through cross-examination the names of the persons she called. (10/25/89 Tr. 100)
Through its intended cross-examination, the defense sought to demonstrate that, contrary to her testimony that she transported drugs and money for xxxxxxx, Zanville actually was a leader of an entirely distinct drug network that dealt in multi-kilogram quantities, and that she was concealing it because she did not want to face possible CCE charges. (10/24/89 Tr. 49) By restricting this line of cross-examination, the court limited the defense to the bare-bones information relating to Zanville's drug trafficking, which had been disclosed by the government. This limitation prevented the defense from developing its theory before the jury. Because Zanville's testimony was crucial to the prosecution's case, the court's ruling violated defendants' confrontation rights.
The government's pattern of nondisclosure of exculpatory and impeachment evidence pervaded this trial. The significance to the defense of the nondisclosed Jencks, Brady, and Giglio materials was obvious and "their importance as tools for impeachment of . . . crucial witness[es] is inescapable." United States v. Badalamente, 507 F.2d 12, 18 (2d Cir. 1974) (reversing conviction and granting new trial), cert. denied, 421 U.S. 911 (1975). The nondisclosure of such evidence and the court's rulings restricting cross-examination of the government's most crucial witnesses combined to violate the defendant's constitutional rights. The cumulative effect of the court's rulings sanctioning the nondisclosure of material evidence and restrictions on relevant cross-examination foreclosed the defendants from confronting the evidence against them and from presenting their own defense. Because these errors denied the defendants their right to fundamental fairness, they cannot be deemed harmless. Thus, the declaration of a new trial in this case is mandated.
THE COURT ERRED IN DENYING WITHOUT A FULL HEARING DEFENDANTS' MOTION TO SUPPRESS WIRETAP EVIDENCE WHERE THE SUPPORTING AFFIDAVIT OMITTED A FULL AND COMPLETE STATEMENT OF OTHER INVESTIGATIVE PROCEDURES TRIED, THE GOVERNMENT FAILED TO PROVE THAT THE INTERCEPTIONS WERE NECESSARY, AND THE AUTHORITY OF THE SPECIALLY DESIGNATED ASSISTANT ATTORNEY GENERAL WHO AUTHORIZED THE FILING OF THE APPLICATION LAPSED BECAUSE OF A CHANGE IN ATTORNEY GENERAL
A.Standard of Review
On review, an appellate court examines de novo whether a full and complete statement was submitted to the issuing judge. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir. 1985). The "necessity determination is reviewable for abuse of discretion." United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989), cert. denied, 498 U.S. 825 (1990).
On August 15, 1988, the district court authorized the interception of telephone calls on (202) 543-7878 and (202) 543-5268, both located at 407 M Street, N.E., Washington, D.C. At the time of the initiation of the wiretap defendants Armaretta Perry and John Monford resided at that address. The interception began on August 16, 1988, and continued until the expiration of the authorization order on September 14, 1988. Subsequently, on September 15, 1988, the court only extended the interception on (202) 543-7378, which ultimately was terminated on October 14, 1988. The interception was made upon application of the United States and contained therein the affidavit of John A. Cornille, Special Agent, Drug Enforcement Administration, in accordance with 18 U.S.C. § 2518.
On July 11, 1989, all defendants, in a joint motion, moved to suppress the wire communications. [A. I. 190] As grounds for suppression the defendants alleged that the communications on (202) 543-7378 and (202) 543-5268 were unlawfully intercepted because:
1. The government failed to make a full and complete statement of the facts and circumstances they relied upon under the particular facts of this case to justify its belief that an order for interception should be issued; and
2. The government failed to make a full and complete statement as to (a) whether or not under the particular facts of this case other investigative procedures had been tried and failed; and (b) why under the particular facts of this case other investigative procedures appeared to be unlikely to succeed if tried; and (c) why under the particular facts of this case other investigative procedures would have been too dangerous.
Thereafter, a hearing was held on all pretrial motions including the motion to suppress the wiretap evidence. During the suppression hearing, notes of MPD Officer Shawn Maguire's investigation of xxxxxxx xxxxxxx and others were introduced into evidence by the defendants. (8/4/89 Tr. 112-13) Drug Enforcement Administration Special Agent John Cornille testified at the hearing on behalf of the United States. Special Agent Cornille testified that he first met Lt. Maguire in December 1988, that he was never told that MPD police officers were obtaining information from xxxxxxx xxxxxxx, and that he did not believe that he had spoken to any officers who had made arrests around Morton and Orleans Streets, N.E, the alleged location of several of xxxxxxx's stash houses and an active outdoor drug market. (8/7/89 Tr. 301, 305, 316). Although Federal Bureau of Investigation Special Agent Anderson was called as a defense witness to rebut the testimony of Cornille, the court quashed the subpoena and he was not permitted to testify. (8/7/89 Tr. 337, 344)
In an effort to establish that Cornille was not being completely candid about his prior knowledge of MPD investigation into xxxxxxx's activities, the defendants attempted to call Lt. Maguire as a witness at the continuation of the suppression hearing. (8/15/89 Tr. 1463, 1464) At the conclusion of the hearing, the defendants requested a Franks hearing on the grounds that there was reason to believe that Cornille's affidavit had contained material omissions. (8/15/89 Tr. 1466) The court quashed the subpoena served on Maguire and denied any further suppression hearing. Finally, on August 28, 1989, the court issued a written order denying the defendants' motions to suppress the wiretaps and for a Franks hearing.
During the trial, the defense obtained Jencks material relating to the testimony of MPD officer Mario Sevilla. The redacted portion of Sevilla's report indicated that restrictions had been placed on the MPD investigation of xxxxxxx xxxxxxx (presumably by the Drug Enforcement Administration). A copy of Sevilla's unredacted report was provided to the court, which ruled that the unredacted portions were not Jencks material. The following exchange between xxxxxxx's counsel and the court then took place:
MR. MURPHY: Let me ask this, Judge. Does the redacted portion have anything to do with the reasons why the Metropolitan Police were ordered off of certain aspects of this investigation by the DEA, because if it does, Judge, it's related to a wiretap in this case and we have the right to see it on that issue even if we don't have a right to use it in evidence during the trial.
THE COURT: That's another issue. I'm not going to discuss it any further. It just doesn't affect adversely your ability to cross-examine. I don't know whether it does or doesn't. I just don't want to debate it now.
(9/25/89 Tr. 119-20)
The redacted report contained the following:
"On August 12, 1987, Lieutenant Shawn Maguire of the Fifth District developed information from a confidential source relative to narcotic trafficking in the area of the 600 blocks of Orleans Place and Morton Place Northeast. The information developed by Lieutenant Maguire describes an elaborate organized scheme to distribute narcotics. The leader of the organization has been identified as "xxxxxxx xxxxxxxs III" DOB (11-26-64). Mr. xxxxxxxs is responsible for bringing in from Los Angeles, California to the District of Columbia very large quantities of cocaine. The transferring of the narcotics from the west coast is accomplished by the use of couriers and information has been received that a White/Female approximately forty (40) years of age are being used for this purpose.
Presently it is believed that Mr. xxxxxxxs is responsible for bringing in nearly one-hundred (100) pounds of cocaine per week. This figure has been developed by Agents of the D.E.A. and F.B.I.
C.The Supporting Affidavit Was Defective Because It Failed to Inform the Court of the Extensive Evidence Already Obtained by the Government
In its application in support of the wiretap, the United States (Special Agent John Cornille) alleged to the district court that "normal methods of investigation have been attempted and have failed or reasonably appear unlikely to succeed or are too dangerous." [A. I. 94] In fact, at the time of the application for the wiretap, there had already been an intensive investigation into the conspiracy which had identified literally every member of the conspiracy. Observation posts had identified street sellers and street lieutenants, including several who would later testify against the defendants. Search warrants had already been executed resulting in arrests of defendants and eventual government witnesses. Observations and further investigation in Los Angeles, California, had identified money and drug couriers and upper level associates of xxxxxxx xxxxxxx. (This information was corroborated by at least one confidential informant).
Six confidential informants were cooperating with the investigating authorities to the extent that, at the time of the application for the search warrant, xxxxxxx xxxxxxx had already been identified as a "Class 1 Violator, capable of trafficking a minimum of four kilograms of cocaine per month." [A. I. 100] In his affidavit, Special Agent Cornille stated that all six confidential informants "refused to testify because they feel their lives will be in danger." [A. I. 139] These informants remain unknown and Special Agent Cornille's statement on this issue has never been tested through cross-examination. Pen registers were already authorized on the telephones subject to the wiretaps and, additionally, on the phone of Alta Rae Zanville, who later became the prosecutor's chief witness. Additionally, a wholly different investigation was under way concerning Ms. Zanville, which ultimately resulted in her arrest with one and a half kilograms of cocaine.
D.The Supporting Affidavit Did Not Include a Full and Complete Statement of Whether Other Investigative Procedures Had Been Tried or Why They Appeared Unlikely to Succeed or Were Too Dangerous As Required by 18 U.S.C. § 2518(c)(1)
"Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices." Berger v. New York, 388 U.S. 41, 63 (1967). Recognizing the threat to privacy rights that would result from unrestricted use of electronic surveillance, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Section 2518 of Title 18 of the United States Code provides the "Procedure for interception of wire, oral, or electronic communications." § 2518(1)(c) provides for:
a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.
This showing, which may be roughly denominated as the "necessity or exhaustion requirement," is an essential predicate to a judicial determination, mandated by § 2518(3)(c), that a wiretap is necessary because alternative investigatory methods cannot accomplish the goals and purposes of the particular investigation.
As noted in the American Bar Association Standards for Criminal Justice, Standards Relating to Electronic Surveillance (Second Edition, 1980) at 49, and by a handful of courts, see, e.g., United States v. Tortorello, 480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866 (1973); United States v. Forlano, 358 F. Supp. 56 (S.D.N.Y. 1973), § 2518(1)(c) has a constitutional origin and, if properly enforced by the courts, can implement basic constitutional principles and policies. See generally, Goldsmith, The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance, 74 J. Crim. L. & Criminology 1, 126 (1983). One constitutional basis for § 2518(1)(c) is found in the Supreme Court's determination in Berger v. New York, 388 U.S. at 60, that the New York eavesdropping statute was defective on its face, because in part, it contained no requirement for notice, while failing to "overcome this defect by requiring some showing of special facts." A second constitutional origin for the necessity requirement is the doctrine that intrusions under the Fourth Amendment are strictly limited by the justification upon which they are based. See Goldsmith, supra, at 125, 132.
The Supreme Court has acknowledged the applicability of electronic surveillance to the principle of proportionality between the extent of the need and the degree of intrusiveness. In Dalia v. United States, 441 U.S. 238 (1979), the Court stated that "[t]he plain effect of the detailed restrictions of § 2518 is to guarantee that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent that it is needed." The Court touched less directly upon this theme when it stated in United States v. Kahn, 415 U.S. 143, 154 (1974) (dictum), that § 2518(1)(c) was "designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime" and in its comment in United States v. Giordano, 416 U.S. 505, 515 (1974), that surveillance procedures "were not to be routinely employed as the initial step in criminal investigation."
Because "necessity is a keystone of congressional regulation of electronic eavesdropping, courts examine closely challenges for noncompliance and reject applications that misstate or overstate the difficulties involved." United States v. Lyons, 507 F. Supp. 551, 555 (D. Md. 1981), (quoting United States v. Williams, 580 F.2d 578, 587-88 (D.C. Cir.), cert. denied, 439 U.S. 832 (1978)). In Williams, this court interpreted the necessity requirement flexibly, recognizing that wiretaps are neither a routine initial step nor an absolute last resort. Id. at 578. The affidavit in support of the wire interception in that case set forth the investigative techniques already employed, which included pen registers, informants and visual surveillance. The court found the affidavit sufficient on the grounds that more sophisticated tactics were required to expose the entire gambling operation. Id. at 590. It is clear, therefore, that the necessity requirement of § 2518(1)(c) is the statutory embodiment of a constitutionally derived principle of least intrusive means and proportionality.
The obligation of showing the inadequacy of alternative investigative procedures may be accomplished in several ways, including describing the peculiarities of the particular operations and the unsuccessful prior attempts to obtain the desired information. See United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977). However, conclusions which are unsupported by facts are not sufficient. United States v. Lilla, 699 F.2d 99, 104 (2d Cir. 1983); In re DeMonte, 674 F.2d 1169, 1174 (7th Cir. 1982);
United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977). Only facts, rather than conclusory assertions, enable the judge to "determine whether other . . . investigative procedures exist as a viable alternative." United States v. Kalustian, 529 F.2d 585, 590 (9th Cir. 1975). Accord United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989).
In the section entitled, "Need for Interception, in his affidavit in support of the wiretap application, the affiant, Special Agent Cornille made "boilerplate statements" concerning the need for the interception, such as:
(1.) Physical surveillances have not provided the identities of all the criminal associates of xxxxxxx xxxxxxx who receive cocaine from him. Likewise, surveillances have been unable to identify all of the criminal associates who are providing xxxxxxx with cocaine. Surveillance, in and of itself, even if highly successful, rarely succeeds in gathering conclusive evidence of the criminal activities under investigation. [A. I. 136-137]
Despite this statement by of Special Agent Cornille, numerous law enforcement witnesses testified at trial concerning their successful surveillance of the defendants. These witnesses included:
(a) Officer Marcello Muzzatti, who conducted surveillance on Morton Street, N.E., and observed Keith Cooper, Emanuel Sutton, Cornelius McDonald and Patrick MacDonald trafficking in drugs (9/20/89 Tr. 48, 70-71);
(b) Officer Donald Bell, who identified defendant Johnny Monford placing trash in the alley (9/22/89 Tr. 28-29);
(c) Officer Thomas Bryant, who identified xxxxxxx xxxxxxx in the area, saw Emanuel Sutton driving a car in the area, saw Keith Cooper resupplying the street sellers, and saw Tony Lewis, Jerry Millington and James Antonio Jones standing around as sales of cocaine were being made (9/22/89 Tr. 151-164);
(d) Officer Jerome Sitek, who investigated Morton and Orleans Places and observed Emanuel Sutton, Johnny Monford, James Antonio Jones, Jerry Millington, and Kathy Sellers (9/27/89 Tr. 86-88);
(e) Officers Dennis Fitzgerald and Kirk Delpo, who stopped James Antonio Jones (9/27/89 Tr. 223, 261);
(f) Special Agent John William Lee of the Drug Enforcement Administration, who observed xxxxxxx xxxxxxx at the Buchanan House on December 24, 1987 (10/13/89 Tr. 83);
(g) Special Agent Clifford J. Ruona of the Federal Bureau of Investigation, who identified xxxxxxx xxxxxxx, Melvin Butler, Royal Brooks, Columbus Daniels and Derrick Steadman at the Los Angeles International Airport on January 11, 1988; observed xxxxxxx xxxxxxx and Melvin Butler at the Los Angeles Airport on February 24, 1988; and observed Melvin Butler and Derrick Steadman at the Los Angeles Airport on February 25, 1988. On April 7, 1988, he observed Alta Rae Zanville arrive at the Los Angeles Airport and exit with a skycap carrying three large suitcases. (10/30/89 Tr. 8-17)
(2.) "Based upon my experience and the experiences of detectives of the Washington, D.C. Metropolitan Police Department and agents of the Drug Enforcement Administration and the Federal Bureau of Investigation, it is my belief that the use of search warrants would not provide sufficient evidence necessary to determine the full scope of the criminal activities and the various methods utilized by xxxxxxx xxxxxxx and others in furthering these activities, as was the case in the February 5, 1988 search of 407 M Street, N.E., Washington, D.C." [A. I. 138]
Omitted from the affidavit were the results of the search warrants executed at 656 Orleans Place on January 27, 1988 (no one present at time of search); the February 18, 1988 search warrant at 656 Orleans Place (where Keith Cooper was observed to throw down $1,400.00); and the March 5, 1988 search warrant at 642 Morton Street, N.E. (where drugs and guns were recovered and Michael Pollard and Patrick McDonald were arrested). Finally, Cornille's bald statement that use of search warrants would not provide sufficient evidence failed to mention the investigations of Lt. Maguire and, more importantly, the quashing by the DEA of the search warrant obtained by MPD Lt. Mario Sevilla.
(3.) "Traditional undercover activities have failed to go beyond the "lieutenant" level of the organization. It is not likely that any other undercover agent will succeed in reaching beyond the level of a drug purchaser in light of xxxxxxx's practice of restricting higher level positions to individuals who are either relatives or long time associates. Likewise, those individuals who are cooperating with the investigation and who have personal and direct knowledge of xxxxxxx's activities have refused to testify because they feel their lives will be in danger. This fear is not unfounded. MPDC Homicide detectives have informed your affiant that sixteen recent homicides are believed to have been committed by members of the xxxxxxx organization." [A. I. 139]
In his affidavit Agent Cornille lists six confidential informants. The basis of all of the informants' information is alleged to be personal knowledge and conversations with xxxxxxx xxxxxxx. Agent Cornille's bald statement that all six individuals were afraid to testify is not supported in the record. Unsupported assertions about danger to witnesses are insufficient to show necessity for a wiretap and the general assertion about sixteen recent homicides lacks any supporting facts. See United States v. Spagnuolo, 549 F.2d at 710.
By its general nature the "Need for Interception" section of the affidavit is insufficient to meet the requirements of § 2518(1)(c). The government relied on vague generalities to support its request for the wiretaps. In United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.), cert. denied, 423 U.S. 924 (1975), the court stated that "boilerplate recitation of the difficulties of gathering usable evidence . . . is not a sufficient basis for granting a wiretap order."
In United States v. Kalustian, 529 F.2d 585 (9th Cir. 1976), the court reversed convictions because the government failed to satisfy § 2518(1)(c). Although Kalustian involved a gambling case, the facts of the case are remarkably similar to the instant case. In that case, the affidavit sworn by FBI Special Agent James Brent contained the same type of boilerplate language as contained in Agent Cornille's affidavit. In fact, Agent Brent's affidavit went even further than Agent Cornille's by stating that the informants would not testify even if granted immunity. In United States v. Sobamowo, 892 F.2d 90 (D.C. Cir. 1989), cert. denied, 498 U.S. 825 (1990), this court upheld a similar attack on an affidavit. However, in contrast to the instant case, in Sobamowo, the authorities appeared to have exhausted normal investigatory techniques prior to the application for the wiretap. Because Cornille's affidavit failed to establish that normal investigative techniques were inadequate, the government did not satisfy the statutory necessity requirement. Therefore, the district court erred in denying the motion to suppress the wiretap evidence.
E.The Contents of the Wire Interceptions Must Be Suppressed Because the Applications Were Improperly Authorized Under Section 18 U.S.C. § 2516(1)
Prior to seeking a wire interception from a federal court, 18 U.S.C. § 2516(1), as amended in 1984 and 1986, requires that either the "Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant General, or any Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General" must authorize the filing of the application. This same authorization procedure must be followed for an application to extend the period of surveillance under §2518(5). United States v. Bynum, 513 F.2d 533, 535 (2d Cir.), cert. denied, 423 U.S. 952 (1975). The Supreme Court made clear the key importance of § 2516(1) in United States v. Giordano, 416 U.S. 505 (1974).
In the instant case the authorization memoranda purportedly issued by Mr. Edward S.G. Dennis, Jr. on August 16 and September 14, 1988, were issued pursuant to Dennis's special designation by Attorney General Edwin Meese (Order No. 1162-86). [A. I. 182] But, at the time Mr. Dennis purportedly issued the two documents, Mr. Meese was no longer the Attorney General as he had resigned on August 12, 1988, and been succeeded that same day by Attorney General Richard Thornburgh. Mr. Thornburgh did not, however, redesignate Mr. Dennis by person or by office as a proper § 2516(1) authorizing official prior to Mr. Dennis's authorization memorandum of August 16, or prior to his memorandum of September 14. Indeed, not until May 24, 1989, some nine months after assuming office as Attorney General, did Mr. Thornburgh issue a special designation authorizing order pursuant to § 2516(1). Thus, since Mr. Dennis's authority had lapsed on August 12, 1988, his subsequent authorizations of wiretaps in this case violated § 2516(1) and were invalid.
Because the government failed to demonstrate the necessity for a wiretap and to comply strictly with Title III procedures in obtaining authorization for the wiretap in this case, the district court erred in denying the defendants' suppression motion. Therefore, the case should be remanded for a new trial in which none of the evidence obtained through electronic surveillance can be admitted.
THE INDIVIDUAL ERRORS AT TRIAL, TAKEN TOGETHER, COMBINED TO DEPRIVE DEFENDANTS OF A FUNDAMENTALLY FAIR TRIAL
Sometimes the whole is greater than the sum of its parts. Recognizing this, this court and other federal courts have reversed convictions where the cumulative effect of several trial errors, even if not individually reversible, has deprived a defendant of a fair trial. See, e.g., United States v. Dwyer, 843 F.2d 60, 65 (1st Cir. 1988) (reviewed cumulatively, three errors by trial court required reversal); Stimack v. Texas, 548 F.2d 588, 589 (5th Cir. 1977) (errors in combination may well have produced "a synergistic effect"); United States v. Alfonso-Perez, 535 F.2d 1362, 1366-67 (2d Cir. 1976) (combination of errors requires reversal); United States v. Freeman, 514 F.2d 1314, 1318 (D.C. Cir. 1975) (where numerous trial errors, reviewing court must weigh "cumulative impact"), vacated, 598 F.2d 306 (D.C. Cir. 1979).
The combination of errors in this case worked a grave injustice upon the defendants. The conclusion of this court in Egan v. United States, 287 F. 958, 971 (D.C. Cir. 1923), is appropriate here as well:
While there is perhaps no single instance involving error so prejudicial as to warrant reversal, we are convinced that, considered as a whole, the rights of defendant[s] were so prejudiced thereby as to deprive [them] of that fair and impartial trial which the Constitution and the law of the land accords to every citizen accused of the commission of crime.
The errors committed in this case, each prejudicial in its own right, meshed and interlocked to multiply the prejudice to the defendants. Each error reinforced and built upon the others to sabotage the defendants' collective right to a fair trial. Because in the aggregate the errors committed by the district court made it impossible for the defendants to be fairly tried, this case should be remanded for a new trial.
Not surprisingly, given the length, complexity, and difficulty of the trial, this is no ordinary appeal. It is a case in which the very integrity of our judicial system is drawn into question by the undue influence of the biased trial judge on the jury, which remained anonymous and sequestered throughout the proceedings. The presumption of innocence of the eleven defendants, whose collective fate was decided by that judge and that jury, could not withstand such an overwhelming burden. Notwithstanding the seriousness of the charges and the substantial evidence presented against the defendants, because of the pervasive adverse publicity, the use of an anonymous jury, and the judge's conduct of the trial, this case still should shock a civilized society's sense of justice.
Perhaps it has never been more difficult than in the present political and social climate for an appellate court to reverse convictions in a case such as this involving a long and costly trial of serious drug offenses by apparently guilty individuals. But as one of the judges of this court recently reminded us,
. . . the judiciary is on no side. That proposition is not a technicality; it is fundamental. We judges must be strictly neutral with respect to all cases that come before us in the manner in which we treat the parties and particularly as to the consequences of our opinions.
United States v. Pryce, 938 F.2d 1343, 1352 (D.C. Cir. 1991) (Silberman, J., dissenting in part) (emphasis in original), cert. denied, 112 S. Ct 1488 (1992).
Simply put, the combination of errors in this case deprived the defendants of a fundamentally fair trial. Therefore, even in the face of all of the notoriety surrounding this case and the apparent sufficiency of the evidence against the defendants,
reversal is required to restore justice.
JENSEN E. BARBER, ESQ.
400 Seventh Street, NW #400
Washington, DC 20004
Counsel for Emanuel W. Sutton
JOSEPH R. CONTE, ESQ.
601 Pennsylvania Avenue, NW
Washington, DC 20004
Counsel for Jerry R. Millington
DANIEL E. ELLENBOGEN, ESQ.
717 D Street, NW #400
Washington, DC 20001
Counsel for xxxxxxx xxxxxxx, III
ELISE HALDANE, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for James Antonio Jones
Federal Public Defender
NEIL H. JAFFEE, ESQ.
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D.C. 20004
Counsel for Keith E. Cooper
STEVEN R. KIERSH, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Melvin D. Butler
LEONARD L. LONG, ESQ.
1828 11th Street, NW #100
Washington, DC 20007
Counsel for John Monford
LEROY NESBITT, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for Tony Lewis
G. GODWIN OYEWOLE, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Bernice H. McCraw
ROBERT E. SANDERS, ESQ.
7125 16th Street, NW
Washington, DC 20012
Counsel for Armaretta B. Perry
DAVID B. SMITH, ESQ.
526 King Street #213
Alexandria, VA 22314
Counsel for David W. McCraw
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December ___, 1994, I have served by hand two copies of the foregoing Final Joint Brief for Appellants on Elizabeth H. Danello, Assistant United States Attorney, United States Attorney for the District of Columbia, 555 Fourth Street, N.W., Washington, D.C. 20001.
Neil H. Jaffee
Assistant Federal Public Defender