ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FEDERAL PUBLIC DEFENDER
Counsel for Appellant
625 Indiana Avenue, N.W.
Washington, D.C. 20004
Cr. No. xxxxxxxx
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), appellant hereby states as follows:
A. Parties and Amici: The parties below and in this court are the defendant-appellant, Floyd xxxxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.
B. Rulings Under Review: In this appeal defendant challenges the decisions of the district court, the Honorable Paul L. Friedman, denying defendant's motions to dismiss portions of the indictment and for a mistrial or appointment of new counsel. There is no official citation to any of the rulings.
C. Related Cases: This case has not been before this court or any other court previously, and appellant is not aware of any related case.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATUTES AND REGULATIONS
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. Crim. P. 4(b), this court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below
On December 16, 1994, the defendant-appellant, Floyd xxxxxxx, was charged in a two-count indictment (APP 1). (1) Count One charged bank fraud, in violation of 18 U.S.C. § 1344. Count Two charged uttering and possessing forged securities of an organization, in violation of 18 U.S.C. § 513(a).
A jury trial began on February 14, 1995. There were four days of testimony presented. On February 22, 1995, the jury found defendant guilty of both counts (2/22: 70).
On June 26, 1995, the district court sentenced defendant to concurrent twenty-four month terms of imprisonment on each count, the top of the applicable sentencing guidelines range (6/26: 32). That term is to be followed by a three-year term of supervised release, a $50 special assessment on each count, and restitution in the amount of $7,500 (6/26: 33). A timely notice of appeal was filed on June 26, 1995 (APP ). Defendant is currently serving his sentence.
B. Statement of Facts
1. The Indictment and Motion to Dismiss
The bank fraud count of the indictment charged one supposed overall scheme to defraud Signet Bank based on four loan applications, spanning from August 15, 1994, to November 18, 1994. All four loans were applied for by phone, to Signet's telephone banking operation in Richmond, Virginia. The four loans were:
Date of Date of Signet Branch
Name Amount Application Settlement Where Settled
George Brown $8,000 8/15/94 8/22/94 Baltimore, MD
Michael Grand $7,500 8/30/94 9/1/94 Pikesville, MD
Richard Lawson $8,500 8/30/94 9/1/94 Pikesville, MD
David Greene $8,000 11/9/94 11/18/94 D.C.
No act taken in connection with the first three loans took place in the District of Columbia. The only act to occur in the District of Columbia in connection with the fourth loan, David Greene, was the settlement at the Signet branch at 215 Pennsylvania Avenue, S.E., where a check for $8,000 was given to Victor Dede after he signed the name "David Greene" to the loan documents. Dede also signed the Greene name on the back of the check.
Defendant filed a pretrial motion to dismiss the majority of the allegations in the first count of the indictment on the grounds that it was duplicitous, because it charged four frauds in one count. The only loan application for which venue was proper in the District of Columbia was the David Greene application. In fact, defendant faced charges in state court in Maryland relating to the other three loans (2/22: 92). Defendant claimed that each scheme was a separate crime under §1344, and that they could not be charged in one count, especially where venue for three of the schemes lay in Maryland (2/2: 7). Defendant requested the allegations of the Maryland crimes be stricken from the indictment and be dealt with under Fed. R. Evid. 404(b), and that Count One consist solely of the David Greene application.
The government agreed that defendant could not be found guilty of the Maryland counts in D.C., and that the jury could only convict defendant of the David Greene application (2/2: 13). The government conceded defendant had been charged with four separate crimes, but contended they showed an overall scheme to defraud Signet (2/2: 14). The government also contended that the evidence of the Maryland matters would be admissible under Fed. R. Evid. 404(b), so that they would be coming into evidence in any event (2/2: 13).
The district court denied defendant's motion, finding that the allegations were all part of the same scheme and were properly included as a single count (2/2: 22-24). The district court agreed that the evidence could probably come in under Rule 404(b) (2/2: 24).
2. The Government's Trial Evidence
Since September 1993, Signet had a telebanking system whereby people could apply for loans over the phone by calling 1-800-2-SIGNET (2/15: 105; 2/16: 59). A sales representative obtained from customers their name, address, social security number, date of birth, previous addresses, the amount and purpose of the requested loan, employment information and work phone, previous employment history, and salary (2/15: 105-106). With this information, the sales representative was able to immediately obtain a credit bureau report, as the bank was on-line with the credit bureaus (2/15: 106; 2/16: 40). Printed copies of the information obtained from the consumer and the credit bureau report then made up the loan file, which was given to a credit officer (2/15: 107, 109; 2/16: 41). The bank had a scoring system which resulted in a recommendation to either approve or decline the loan, or to seek further information (2/15: 106). The telebanking office, where the sales representatives were located, was in Richmond, Virginia (2/15: 108).
If a loan was approved, the applicant would be notified and asked to select a date and a Signet branch for the settlement. The customer then could go to the chosen Signet branch to show identification, sign the documentation, and receive the proceeds. The loan documents were sent to the branch bank from Richmond.
All four loan applications at issue had certain similarities. They were all for home improvements and for similar amounts (2/15: 133). The bank account reference on all four was National Westminster Bank, which was an odd bank to see listed (2/15: 134; 2/16: 71). The caller for the Michael Grand loan provided an address on North Pulaski Street in Baltimore (2/16: 43). The credit reports for George Brown and Richard Lawson listed as prior addresses the same Pulaski Street address (2/16: 42-43). Brown, Lawson, and Greene all had the same (800) work phone number, and Lawson and Brown had the same home phone number in the (410) area code (2/15: 134). Greene and Lawson had the same employer (2/15: 134).
The government started to introduce through Steven Jayne, the supervisor of the telebanking sales representatives, the documents from the loan files for the four loans at issue in the case. Defense counsel objected:
Your Honor, I am objecting because my client wants me to object and with regard to foundation and the fact that it is a business record, while he, I guess he is responsible for the system, he has authenticated the documents, I don't see any foundation problems with it and my client just believes as we discussed earlier this information is prejudicial and it shouldn't be admitted in his prosecution.
(2/15: 111). Defense counsel did not make any distinction between the Signet loan application forms in the file and the credit bureau reports obtained from outside companies. The government complained that defense counsel was the lawyer and should make objections if there was a legal basis but he should not blame objections on the defendant (2/15: 112). The district court responded by saying defense counsel could "make whatever objections he thinks are appropriate and I appreciate his candor" (2/15: 112). The district court allowed defendant to lodge a standing objection to all the documents pertaining to the applications that had no connection to the District of Columbia -- the George Brown, Michael Grand, and Richard Lawson applications (2/15: 113). The district court determined the loan documents were admissible as business records (2/15: 112).
During Jayne's testimony about the similarities in the loan applications, the government was using a chart to demonstrate the information to the jury. The district court, on its own, raised the point that the chart was unclear as to what information had come from the phone calls by the loan applicants, and what information had come from the credit reports (2/16: 2-11). The district court observed that the information from the phone calls was properly in evidence, but nothing tied defendant to any of the information from the credit reports (2/16: 3, 7). The government subsequently, during Jayne's testimony, clarified to the district court's satisfaction what the source of information was for the items on the chart (2/16: 47). At the conclusion of Jayne's testimony, defense counsel objected that the chart was misleading for the reasons the district court had earlier stated (2/16: 75). The district court again stated that the matter had been sufficiently clarified, and also ordered the government to put an indication on the chart where the information had come from the credit report rather than the applicant.
a. The George Brown loan
The papers for the George Brown loan were sent to the main Baltimore Signet office
(2/16: 84). On August 22, defendant came into the bank and said he was Mr. Brown
(2/16: 85). Tammy Williams, a customer service representative, brought out the loan
papers and the check, but defendant said he did not have his identification with him
(2/16: 88). Williams went to lunch, and when she came back defendant was sitting at the
desk of Alex Yearley, the branch manager (2/16: 89). Both Williams and Yearley identified
defendant as George Brown before trial by picking defendant's photo from a spread of six
photos shown to them by the Secret Service (2/16: 95, 129). (2)
Defendant signed the loan note as George Brown (2/16: 116). Defendant provided a work identification instead of a driver's license or government-issued identification (2/16: 139). No objection was made to Yearley's testimony that because he accepted the wrong identification he lost $1,700 pay and got a severe warning from his supervisor (2/16: 31). (3)
Defendant also opened a savings account in the name of George Brown, signing the signature card for the account in that name (2/16: 121). Defendant was originally going to deposit $7,500 into the savings account, but ultimately deposited only $500, and took the rest of the proceeds (2/16: 126). Defendant spoke with a West-African type accent (2/16: 140). After defendant left the bank, Tammy Williams discovered the Social Security number on Brown's savings account card had one digit different than Brown's loan application (2/16: 94).
Florence Jenkins, another branch manager, thought something was not right on the George Brown loan. She told Yearley to try to delay the paperwork, but he could not (2/16: 145). She saw defendant leave the bank, and walk up to another man and slap hands (2/16: 147). She testified without objection that after learning about the Social Security number difference, she called Daniel Bohrer, a Signet security officer, and told him they had a fraud (2/16: 149).
Bohrer testified that he obtained the George Brown loan documents, and discovered the home phone number was not working and the work phone number had an unintelligible recording (2/16: 155). Bohrer mailed a letter to Brown, who signed an affidavit of forgery saying he never applied for a loan (2/16: 155). Bohrer also testified that George Brown called and said he had not applied for credit at Signet and had not been to Signet (2/17: 82).On August 30, the Richmond office contacted Bohrer because it was felt that two other loans were related to the George Brown loan (2/16: 156). Bohrer then testified about the similarities in the applications about which Jayne had already testified (2/16: 157-58). Without objection, Bohrer testified that because he had never seen documents with so many common features he contacted the Secret Service in Baltimore, who agreed with him that a fraud was occurring (2/16: 158).
b. The Michael Grand loan
Greg Horsley was the assistant manager of the Signet Pikesville Office, where the Michael Grand loan was scheduled to be settled on September 2 (2/17: 107-08, 128). On September 1, defendant came into the branch and showed a New Jersey driver's license, with defendant's picture on it, and a work identification, both in the name of Michael Grand (2/17: 108-09, 112). Defendant signed the Michael Grand loan papers (2/17: 111). Defendant started to get "antsy" during the procedure, saying he had to go to another bank, and he left while Horsley was on the phone, checking to see if a New Jersey driver's license was acceptable identification (2/17: 117-18). After defendant left, Horsley was told that it was a "set-up" and to contact security personnel who were working on the matter (2/17: 119). Later, Horsley got a call that defendant had been arrested at another Signet Branch, and about an hour later Horsely identified defendant from a photo array (2/17: 119, 124). Horsely noted that defendant had a foreign accent, which sounded the same in court as it did on the day he was in the bank (2/17: 127, 136).
c. The Richard Lawson loan
The scheduled settlement for the Lawson loan was September 1, in Baltimore County (2/16: 159). The Secret Service intended to be at the bank to observe the transaction (2/16: 159-60).
Michelle Elliott was a customer service representative at the Signet branch on Reisterstown Road on September 1, 1994 (2/17: 139). She was asked to help in a set-up of the Richard Lawson loan, because the bank realized the loan was fraudulent (2/17: 150). Secret Service officers were stationed in the office next to her (2/17: 151). Defendant came into the bank claiming to be Richard Lawson and signed the loan papers (2/17: 152). He showed her a New Jersey driver's license, with his picture on it, in the name of Richard Lawson (2/17: 157-58). Defendant asked for the proceeds of the loan in cash, and was given $8,500 in large bills (2/17: 162). As he walked out of the bank, he was arrested by the Secret Service (2/17: 163).
Bohrer was allowed to testify that he learned that defendant was arrested at the Commerce Center branch on September 1 posing as Richard Lawson, and that a sheet of paper was taken from him at that time with information about the Lawson loan on one side and information about the Michael Grand loan on the other side, in what looked like the same handwriting (2/16: 161-65). The government admitted, when defendant objected, that this testimony was hearsay (2/16: 166). The district court admitted the hearsay, however, instructing the jury that Bohrer's "knowledge . . . comes from other sources and you can consider it for what it's worth, but it is hearsay evidence" (2/16: 167).
Gary Lowman was the Secret Service agent who arrested defendant on September 1 (2/22: 41). Lowman recognized that Michael Grand was a name used by defendant in a prior investigation (2/22: 31). The government, although there had been no objection from defense counsel, approached the bench and stated it had instructed the agent not to refer to the prior investigation (2/22: 31). At the bench, defense counsel cryptically stated:
Your honor, I would object because given the pretrial rulings I don't think the statement is objectionable either way.(2/22: 32). Defense counsel decided not to ask for an instruction that might only highlight the testimony (2/22: 32). After the arrest, Lowman interviewed defendant (2/22: 43). Lowman learned defendant had been at the Old Court Road Office attempting to settle the Michael Grand loan (2/22: 43). Lowman was the agent who showed the photo spreads to Alex Yearley, Tammy Williams, and Greg Horsley, all of whom identified defendant as the loan applicant (2/22: 35, 38).
Recovered from defendant was a New Jersey driver's license and work identification in the name of Richard Lawson, as well as the paper with the Lawson loan information on one side and the Grand loan information on the other side (2/22: 56, 60, 64). From defendant's car was recovered a driver's license in the name of Michael Grand bearing defendant's picture (2/22: 66). (4)
Also in the Nissan were a Mastercard and work identification in Grand's name, and a work identification and Social Security card in the name of Marlon Jackson (2/22: 76-77, 81-82). The money from the loan proceeds was in defendant's pocket (2/22: 83). Defense counsel brought out that a watch, bracelet, and pendant were taken from defendant in an entirely different arrest in June 1994, which had not been mentioned by anyone before (2/22: 93).
Bohrer contacted Lawson and Greene and learned that neither had applied for a Signet loan (2/17: 88).
d. The David Greene loan
Bohrer also testified that on November 10, 1994, the Richmond loan center called him with another suspicious loan, this one in the name of David Greene (2/16: 164). Bohrer was told the loan was for similar purposes and had some of the same information as the Brown and Lawson loans, which made Bohrer suspect the same defendant was involved in all the loans (2/16: 168). Bohrer contacted the Secret Service to set up surveillance for the settlement of the Greene loan for November 18, at the Capitol Hill Signet branch (2/16: 169).
Steven Jayne spoke to the caller who identified himself as David Greene, who had an accent similar to a British accent (2/15: 135). On cross-examination defense counsel elicited from Jayne that he had spoken with the telephone sales representative who had taken the Greene application, who noted the same British accent (2/16: 66). The government initially objected on hearsay grounds, but withdrew the objection when it realized the answer was favorable to the government (2/16: 66-67). Defense counsel also managed to question Jayne about the sales representatives for the Grand and Lawson loans. This effort brought out more damaging hearsay because Jayne testified that both those representatives also reported a British-type accent (2/16: 67). The government refrained from objecting to defense counsel bringing out this testimony that the government could not properly have attempted to introduce into evidence.
With respect to the November 18, David Greene loan, Secret Service Agent David Thomas posed as the bank employee handling the settlement of the loan at the Signet branch at 215 Pennsylvania Avenue, S.E. (2/22: 115). A man, later identified as Victor Dede, came into the bank claiming to be Greene, and signed all the loan documents (2/22: 116-19). Dede had a New Jersey driver's license with his picture on it and a work identification in the name of David Greene, although he did not produce it until the transaction was completed (2/22: 120, 123). Dede had other identification in Greene's name, as well as a piece of paper with the Greene loan information written on it, similar to the paper defendant had when arrested earlier in connection with the Lawson loan (2/22: 128, 131). Dede endorsed the loan check in the name of David Green (2/22: 122).
Defendant had been seen walking to the bank with Dede by INS Agent Randy Cole, who was stationed outside the bank (2/22: 167, 183). Defendant did not go inside the bank on November 18 (2/22: 142). Dede signed all the papers and had all the Greene identifications (2/22: 143). (5)
Cole arrested defendant on the street, two businesses to the right of the bank, based on an outstanding warrant for his Baltimore case (2/22: 168, 176). Defendant had on him an American Airlines employee identification with defendant's picture on it, in the name of Cosmos Phillips, as well as a plane ticket stub in that name (2/22: 169-70, 174). Defendant also had a business card with numbers and dates on it that Cole suspected were credit card numbers with expiration dates (2/22: 173-74). Cole opined that these items showed defendant was maintaining a false identity (2/22: 176).
Agent Thomas interviewed defendant after his arrest (2/22: 137). Defendant stated he had been approached by a man named Aziz about the Greene loan (2/22: 138). Aziz had previously provided information about a similar loan in Baltimore. Defendant said he did not want the job because he was too "hot" due to his Baltimore Signet arrest (2/22: 138). Dede, who was with defendant at the time, volunteered to do the transaction, but he did not have experience (2/22: 138). Defendant "schooled" Dede and told him where to go to get the false identifications (2/22: 139). Defendant said he could get false New Jersey driver's licenses from a group that kept moving locations so he would contact them by pager (2/22: 140-41). Defendant agreed to drive Dede to D.C. and was to get $500 for driving and schooling him (2/22: 140).
Defendant told Agent Thomas that defendant could not figure out how he kept getting caught and that he felt the agents should stop bothering him because there were no victims to the crime (2/22: 141). Defendant told Thomas that defendant did not want to put anything in writing because he thought a written statement, but not an oral statement, could be used against him in court, although Thomas informed defendant an oral statement could also be used against him (2/22: 141, 150).
Another Secret Service Agent, Jeffrey Shelton, re-interviewed defendant (2/23: 31). Initially, defendant told Shelton the same story told to Thomas (2/23: 33). Shelton asked defendant to give a written statement (2/23: 34, 38). Defendant first said he did not want to put anything in writing without some kind of deal, but Shelton said he could not do that (2/23: 34). Shelton wrote the statement and defendant signed it (2/23: 41). The written statement did not contain defendant's admissions about being too "hot" and offering to "school" Dede and get him false identifications (2/23: 36). Defendant winked and said he would not put that material in the written statement without some kind of deal (2/23: 36).
Donald Greene testified that he did not apply for a loan at Signet or give anyone else permission to do so (2/17: 93). He learned his credit had been compromised when he received a call from Signet asking if he had applied for a loan (2/17: 92). Without any objection, Greene also testified that he was told there could be big problems with his credit history if the loan went through, and that he called the credit reporting companies to tell them someone was falsely using his Social Security number (2/17: 94). He was very upset that his credit history was jeopardized because he and his wife had just moved to Atlanta from New York, and his daughter was applying for college loans (2/17: 94).
At the end of the government's case, the district court denied defendant's motion for a judgment of acquittal (2/23: 50). The defense presented no evidence, as discussed below (2/23: 117).
3. The Jury Instructions
Defendant objected to the jury instruction on the § 1344 count on the ground that it would allow defendant to be convicted for acts for which there was no venue in D.C. (2/23: 89-91). The pertinent part of the § 1344 instruction provided:
The indictment alleges in paragraphs one through 16 of Count One, which I just summarized for you, that certain acts were committed in furtherance of a scheme to defraud.It is not required that every act charged in the indictment be proved. It is sufficient if the prosecution proves beyond a reasonable doubt that one or more of the acts alleged in paragraphs one through 16 of Count One were done by the defendant in furtherance of the alleged scheme to defraud.
So the government must prove the scheme to defraud and it must prove that one or more acts in furtherance of the scheme to defraud were done by the defendant. And it must also prove beyond a reasonable doubt that one or more acts in furtherance of the scheme to defraud were committed by one or more participants in the scheme in the District of Columbia.
(2/24: 36-37). Later in the instructions, the district court explained to the jury:
With respect to the first count, bank fraud, there has been evidence of more than one act or incident upon which a conviction on this count may be based. You may find the defendant guilty on this count if you find that the government has proved beyond a reasonable doubt that the defendant participated in a scheme to defraud and that he committed any one of the acts in furtherance of the scheme.However, in order to return a guilty verdict on this count, all jurors must unanimously agree as to at least one of these specific acts.
Shortly after the jury deliberations began, the jury sent out a note with three questions (APP ). The district court had instructed the jury to consider defendant's age, education and other factors in determining whether the confession was voluntary (2/24: 22). The jury's first inquiry was whether such information was available, because, while they were told to consider these factors, no particulars about them were provided (2/24: 59). The jury's second question was what was the significance of the District of Columbia in Count One (2/24: 59). Third, the jury asked whether the possession of forged securities had to be in Maryland, or D.C., or both (2/24: 59-60).
The parties agreed that the answer to the first question was "no," and that part of the bank fraud instruction answered the second question (2/24: 60-61). The district court, with defendant's consent, told the jury that the possession of forged securities had to be in D.C. (2/24: 67). Later that afternoon, the jury returned the guilty verdicts (2/24: 70).
4. Defense Counsel's Representation
During the voir dire, after the government had read its potential witness list, defense counsel asked to approach the bench without the defendant present (2/14: 26). Counsel told the district court that he knew well one of the government's potential witnesses (2/14: 26). The witness was the former manager of the Signet Branch where counsel had his trust account (2/14: 26). He had a close relationship with the witness, and had obtained loans from her, although she transferred from that branch about two years previously, and counsel had not seen her since (2/14: 26-27). Defense counsel felt it would not affect his ability to cross-examine the witness, and the government indicated it might not even call her (2/14: 27). (6)
Defense counsel pointed out that defendant should have been at the bench conference to be apprised of the facts, but this was not done (2/14: 27).
Two days later, defense counsel told the district court that he had told the defendant what federally insured deposits were and that defense counsel was a depositor of Signet with several accounts and that he had received a loan from Signet (2/16: 176). Defense counsel made no mention of telling defendant about the relationship with the potential witness. The district court noted that counsel had earlier disclosed "that fact" to the court, and stated that "Mr. xxxxxxx is reminded of it" (2/16: 176-77). No inquiry of defendant was made about his understanding of the matter.
After the jury was selected and just before the trial started, defense counsel informed the district court that there were ongoing plea negotiations (2/15: 77-78). A discussion of the possibilities ensued, with defense counsel informing the district court that if defendant pleaded guilty, he would be subject to a guidelines sentencing range of thirty-one to thirty-eight months (2/15: 80).
In his opening statement, defense counsel told the jury that the government had a cooperating witness, Victor Dede, who had agreed to be a witness to reduce his liability (2/15: 99). The government objected, telling the district court that Dede's plea agreement did not so provide (2/15: 99-101). The district court stated that defense counsel should not have made the statement because he did not know what was in Dede's plea agreement (2/15: 101). The district court told the jury to disregard defense counsel's remarks about Dede's plea agreement (2/15: 103).
The attorney-client relationship broke down completely in the midst of the trial. Before the beginning of the third day of trial, defense counsel told the district court he was making a motion for mistrial at defendant's request (2/17: 1). The grounds were that defendant was not receiving the fundamentally fair trial to which he was entitled under the Fifth and Sixth Amendments (2/17: 1). Defendant also believed counsel was ineffective in his cross-examination of the bank employees and in failing to move to suppress their identifications (2/17: 2). Defendant requested appointment of a new attorney or time to get his own attorney (2/17: 2-3).
The district court noted the problems that such a change would cause in the middle of trial, and that defendant had already had one new counsel appointed after arraignment (2/17: 9). The district court stated it would not give defendant a new lawyer in the middle of trial (2/17: 15).
Defendant complained that he had not seen his lawyer since February 2, and first saw the paperwork on February 14 (the first day of trial) (2/17: 21). Defense counsel did not dispute this, and the government pointed out that it did not provide most of the discovery until February 14 (2/17: 23).
Defendant's counsel was then allowed to approach the bench ex parte, where he told the district court he needed a subpoena to get records that would show that David Greene was an alias that Victor Dede had used in a loan application to Nationsbank from October 5 to November 14, 1994 (2/17: 24). The district court apparently signed the subpoena authorization (2/17: 24).
Back in open court, defense counsel told the district court that defendant did not want to be present for the trial (2/17: 25). Defendant, however, told the district court that was not true, that he wanted a new attorney (2/17: 27). The district court stated that defendant had not made out a case for a new attorney and that defense counsel was not ineffective (2/17: 27). The district court told defendant he could represent himself or he could proceed with his appointed lawyer as counsel (2/17: 29).
The courtroom marshal then informed the district court that defendant asked to be removed from the courtroom and said he was going to walk out of the courtroom (2/17: 34). The district court told defendant he had a right to be present, but could ask not to be (2/17: 37). At that point, the district court took the lunch break to allow counsel and defendant to discuss the matter further (2/17: 39).
Things got worse after the recess. Defense counsel announced that an irreconcilable difference had arisen between him and defendant as a result of discussions over the recess, and that the matter involved an ethical obligation (2/17: 39-40). The district court had the prosecutor and case agent leave the courtroom so the matter could be discussed ex parte (2/17: 43). Defense counsel stated that defendant had suggested counsel commit unlawful acts (2/17: 43). The district court thought that counsel meant defendant wanted to commit perjury, because it went over at length the various alternatives in such a scenario (2/17: 44-46). Defense counsel, however, told the district court that was not the situation, but that defendant wanted counsel to make inaccurate representations, and he had refused (2/17: 46). Counsel further stated the matter had to do with factual representations defendant wanted counsel to make to the court about the status of counsel's relationship with defendant (2/17: 46-47). Counsel told the district court he could not prepare to represent defendant (2/17: 47). The district court told defendant he had three choicesto continue with counsel, to represent himself with counsel providing advice, or to continue with counsel but not be present in the courtroom (2/17: 48).
The government and the case agent returned to the courtroom after this exchange (2/17: 49). Defense counsel told the district court that he had not told defendant what counsel would do about defendant's suggestion before telling the court about it (2/17: 51). Defense counsel believed it was his ethical obligation to inform the district court of what happened because he would not knowingly make misrepresentations to the court (2/17: 52).
Defendant refused to answer questions from the district court about the situation (2/17: 53). Defense counsel told the district court that he had told defendant he would have been held in contempt if the district court was not so patient, that counsel felt defendant understood the proceedings, and that counsel urged defendant to participate as co-counsel if he was unhappy with counsel's performance (2/17: 54). Defendant told the district court he was very scared and did not want to be convicted of something he did not do (2/17: 55).
After just telling the district court that defendant understood the proceedings, defense counsel asked for a twenty-four hour competency exam (2/17: 56). The government opposed this on the ground that defendant was just belligerent (2/17: 56). The district court agreed with the prosecutor, but told defendant he could cross-examine the witnesses as well if he chose to do so (2/17: 58). The district court told defendant he could be bound or removed from the courtroom if he was disruptive, to which defendant responded that he would disrupt the courtroom when the jury came in, so he should be held in contempt, because he would rather be dead (2/17: 61).
The marshal proceeded to put restraints on defendant (2/17: 62-63). Defense counsel asked the district court to advise defendant about not being present, as it was more prejudicial to be shackled than to be absent (2/17: 63). The district court observed that the marshal determined it was necessary to cuff and shackle defendant (2/17: 63). The district court also noted that defendant could choose not to be present (2/17: 65). The trial proceeded for the rest of the day with defendant shackled.
Defendant blurted out remarks several times (2/17: 70, 110, 120, 129, 139). The district court sent the jury out at one point and told defendant he could not argue in front of the jury (2/17: 142). Defendant again asked for a new lawyer (2/17: 142, 146). The district court gave defendant four choices: to continue with counsel; to represent himself; to leave the courtroom and let counsel represent defendant; or to continue with the option the court had previously imposed of continuing with counsel and also letting defendant ask questions (2/17: 147).
At the end of the day, defense counsel announced that he had that morning mistaken one
of the jurors for a law clerk for one of the judges. While coming in the front door of the
courthouse counsel had said to the juror good morning and that he had had better times in
law school (2/17: 176). Counsel gave no explanation of why he had waited until the end of
the day to reveal this contact with the juror. The government felt it was very
inappropriate, and the district court stated it would deal with it the following Tuesday
(2/17: 177). (7)
That Tuesday, defendant came in not having slept since Friday, because the district court had placed him on a suicide watch over the weekend (2/21: 2). Defendant also told the district court he would not disrupt the proceedings any further (2/21: 7). The government felt it had been prejudiced by defendant's behavior, and requested that he be gagged in addition to being chained or excluded from the courtroom (2/21: 3).
The district court stated it had determined the previous Friday that defendant needed to be shackled in handcuffs and leg irons because he shouted at his attorney, the prosecutor, and the marshal, and threatened to disrupt the trial (2/21: 7). The district court felt that less attention was drawn to the fact because defendant remained seated during his questioning and that no instruction was given because defense counsel had not requested one (2/21: 8). The district court thought it was less intrusive to shackle defendant than hold him in contempt, and had put him on the suicide watch because of his emotional state (2/21: 9). The district court decided to remove the shackles and the suicide watch and to continue the trial for a day to allow defendant to get some rest (2/21: 9, 11). Defendant did not further disrupt the trial.
The district court addressed the issue of defense counsel's contact with the juror. The juror testified that they said good morning to each other on Thursday, and that counsel said something about working with crazy people, to which the juror replied that everyone works with crazy people (2/21: 25). The juror did not think the exchange would affect his ability to be fair and impartial (2/21: 26). Neither the prosecutor nor defense counsel had any questions for the juror (2/21: 27-28).
Defense counsel did not recall saying anything about crazy people, but remembered saying to the juror, who counsel thought was a law clerk, that if he thought things were crazy in law school, wait until you get into practice, things get bad (2/21: 28). Counsel was satisfied that nothing constituted grounds for dismissal, but because he was a party, he deferred to defendant (2/21: 29).
No advice was given to defendant about the situation, and he stated he was satisfied
with the juror (2/21: 30). The district court did not remove the juror because no one
asked (2/21: 30). The discrepancy between the juror's testimony that the conversation took
place on Thursday and defense counsel's representation that it occurred on Friday, was
left unexplained, as was defense counsel's differing versions of the contact. (8)
After the government rested, defense counsel stated he would know by afternoon if he would be able to get witnesses from Baltimore (2/23: 51). Subsequently, defense counsel told the court that his investigator had not arrived with the witnesses and document he hoped to introduce (2/23: 86). Blaming the failure on defendant not disclosing the information until two days before, counsel felt he could not impose upon the court to delay the proceedings (2/23: 86). In fact, defense counsel had asked for the subpoena six days previously. Later, defense counsel stated he had been in touch with his investigator about the matter for which the court had signed the subpoena, and that while the records and loan existed, they could not be brought to court that day (2/23: 101). Counsel stated that he would understand if the evidence was excluded based on the lateness it was brought to counsel's attention (2/23: 101). The evidence had to do with Dede's use of the name George Brown to obtain a loan at Nationsbank during the same time period, which would show Dede's ability to act alone and execute the scheme without any involvement by defendant (2/23: 102).
The district court thought the proffer by counsel was weak and may in fact have further connected Dede and defendant (2/23: 105-106). Defense counsel explained that he was only co-counsel, and that the information had been brought to him during trial (2/23: 106). The district court was not inclined to postpone the trial (2/23: 106).
The district court stated that if defendant testified the government would be able to ask about his prior conviction (2/23: 54). After the district court again advised defendant of his options regarding testifying and the possibility of cross-examination, defendant decided not to testify, and the defense rested without presenting any evidence (2/23: 101-11, 113, 117).
SUMMARY OF ARGUMENT
The first count of the indictment was duplicitous because it charged four separate offenses of bank fraud. Venue in the District of Columbia was proper for only one of the alleged offenses. The district court erred in not dismissing from the count the three offenses of which the government admitted defendant could not be convicted in D.C. Defendant was prejudiced as a result because evidence of the other three offenses was admitted without any limiting instructins. In addition, defendant was also prejudiced because the jury instructins permitted the jury to convict defendant of one of the offenses not properly charged in D.C.
Furthermore, defendant received a fundamentally unfair trial when his lawyer created a serious conflict of interest by advising the district court that defendant had requested the lawyer do something unlawful and unethical. Defense cunsel informed the district court of the matter without first telling defendant such conduct would not be tolerated. While at that point, the district court might have taken several courses of action, the one it took ws the wrong one -- allowing the lawyer to continue representing the defendant. After the conflict arose, there were several instances where the lawyer's performance was adversely affected. Defendant was admittedly a difficult client, and the evidence against him was strong. That, however, does not change the fact that his trial was fundamentally unfair because he was represented by a lawyer with a conflict of interest.
I. COUNT ONE OF THE INDICTMENT WAS DUPLICITOUS BECAUSE IT CHARGED FOUR DIFFERENT VIOLATIONS
A. Standard of Review
Whether an indictment is duplicitous presents a purely legal issue. Legal issues are reviewed de novo.
B. The Merits
A count of an indictment is duplicitous if "two or more distinct and separate offenses" are joined in a single count. United States v. Shorter, 809 F.2d 54, 56 (D.C. Cir. 1987). The courts of appeals that have construed the bank fraud statute, 18 U.S.C. § 1344, have all held that the offense created by § 1344 is not the scheme to defraud, or each act in furtherance of the scheme to defraud, but rather each execution or attempted execution of the scheme:
[Section 1344] does not criminalize schemes or scheming per se; it criminalizes the execution (or attempted execution) of schemes. Phrased another way, the statutory terminology focuses on the fraudulent acts actually committed, or attempted, along with the effects of those acts, rather than upon the distinctively different question of how a defrauder visualizes his plot.United States v. Lilly, 983 F.2d 300, 303 (1st Cir. 1992) (footnote omitted). See also, United States v. Nash, 64 F.3d 504, 508 (9th Cir. 1995); United States v. Hammen, 977 F.2d 379, 383 (7th Cir. 1992); United States v. Lemons, 941 F.2d 309, 318 (5th Cir. 1991); United States v. Schwartz, 899 F.2d 243 (3d Cir.), cert. denied, 498 U.S. 901 (1990). Making the execution of the scheme the offense, however, has not made it easy to determine the proper form of an indictment.
In Nash, the government agreed that the indictment was multiplicitous where it charged four separate counts relating to one loan. Each of the counts charged conduct relating to different documents involved in the one loan. 64 F.3d at 508-09. Although there were multiple documents, they all related to the single execution of the scheme. Likewise, in Lemons, the court found counts of an indictment multiplicitous where payments to a defendant, although made on separate occasions, were part of just one execution of the scheme. 941 F.2d at 318.
In United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987), cert. denied, 485 U.S. 1029 (1988), the court upheld an indictment charging ten separate counts for writing ten checks in a check-kiting scheme because the writing of each check constituted an execution of the scheme. Likewise, in Schwartz, the court upheld the charging of three separate counts for three separate deposits of checks. 899 F.2d at 248.
While agreeing that the crime in § 1344 is the execution of the scheme, so that for each count there must be an execution, the Seventh Circuit in Hammen, 977 F.2d at 383, stated:
However, the law does not require the converse: each execution need not give rise to a charge in the indictment. The indictment in this case sets forth the existence of a scheme and alleges the scheme was executed on at least one occasion. The allegations tending to demonstrate the existence of the scheme do appear to be allegations that, if worded and structured differently might constitute additional executions. This is hardly surprising; the actions that tend to prove the existence of the scheme will often be the actions actually taken to execute the scheme. Nonetheless, we believe the government has carefully crafted the indictment to allege only one execution of an ongoing scheme that was executed numerous times.
The indictment in the present case is notably different than Hammen. Each execution of the scheme is set out separately under the name of the loan applicant. Thus, four separate executions were alleged. Indeed, the government admitted that four separate crimes were charged in the count, but conceded that defendant could not properly be convicted in D.C. of anything other than the David Greene loan. The indictment, however, alleged a scheme to defraud Signet Bank of Maryland, Virginia, and D.C.
Under the unique facts of the present case, the indictment was duplicitous. Three of the executions of the scheme were not properly charged in D.C. Defendant was prejudiced by the improper charging because the evidence of the other executions, if admissible at all, would only have been admissible under Fed. R. Evid. 404(b). (9) The jury then would have been instructed about the limited purposes for which it could use the evidence.
In addition, the jury instructions -- which conformed to the indictment -- permitted defendant to be convicted of a crime for which there was not venue in D.C. The jury was never instructed that it had to unanimously find one overall scheme to defraud. Thus, the instructions allowed the jury to convict defendant if he did one of the acts alleged with respect to the Brown, Grand, or Lawson applications, and Dede did an act in furtherance of the Greene loan in D.C., even though the jury may have believed they were separate schemes. This violated defendant's Sixth Amendment right to be tried in the "district wherein the crime . . . [was] committed." Without an instruction requiring the unanimous finding of an overall scheme, defendant was subject to the very danger of which he had complained from the beginning of the case -- being convicted for an offense for which venue in D.C. was improper.
Furthermore, the unanimity instruction the jury was given conflicted with the earlier bank fraud instruction. The later unanimity instruction allowed the jury to convict defendant if the government proved the defendant participated in a scheme to defraud and that he committed any of the acts in furtherance of the scheme, but the jury had to unanimously agree as to at least one of the acts. This instruction permitted defendant to be convicted even if the act it agreed upon did not occur in D.C., and even if the scheme to defraud was not connected with the David Greene loan. The unanimity instruction thus conflicted with the specific bank fraud instruction and demonstrated again the impropriety of charging the four offenses in one count.
The jury's confusion on this issue became apparent when it asked, "Concerning Count One, what is the significance of 'District of Columbia?'" (2/24: 66). In response, the district court reread to the jury the portion of the instruction quoted above (2/24: 66). The jury, therefore, again received an instruction allowing it to convict defendant based on one of the loan applications for which there was not venue in D.C.
For the above reasons, the § 1344 conviction should be reversed and remanded with instructions to dismiss the allegations in Count One pertaining to the Lawson, Grand, and Brown loans.
II. DEFENDANT WAS REPRESENTED BY COUNSEL WHO HAD AN ACTUAL CONFLICT OF INTEREST
A. Standard of Review
This court, in United States v. Shark, 51 F.3d 1072, 1075-76 (D.C. Cir. 1995), cert. denied, U.S. (19 ), stated: (10)
A defendant who can establish that "an actual conflict of interest adversely affected his lawyer's performance" is relieved from the stringent showing required under Strickland. Id. at 692, 104 S.Ct. at 2067 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (footnote omitted)). Recognizing that "it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests," id., the Strickland Court reaffirmed Cuyler v. Sullivan, which held that a defendant who can demonstrate that his lawyer acted under a conflict need only show that the conflict had some negative effect upon his defense (defined as "an actual lapse in representation"). Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719.
B. The Merits
Defense counsel in the present case informed the district court that his client had asked him to make factual misrepresentations and to commit unethical acts. Exactly what these acts were was never specified. Defense counsel admitted that he gave no warning to defendant of counsel's intent to inform the court of the matters. These actions put counsel into a direct conflict with defendant.
"A criminal defendant is entitled to counsel whose undivided loyalties lie with his client." United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). In United States v. Shorter, 54 F.3d 1248, 1252-53 & n.7 (7th Cir. 1995), defense counsel filed a motion to withdraw as counsel asserting that the defendant was making false statements to the court, apparently in connection with a motion to withdraw his guilty plea. Defense counsel also refuted defendant's assertion that counsel had forced defendant to plead guilty, feeling bound by his duty "to preserve the integrity of the court proceedings." Id. The court held that where a defendant accuses counsel of improper conduct and counsel disputes the accusation, thus contradicting the client, an actual conflict of interest exists. The court went on to find that that prejudice is presumed in such a situation where a defendant can show the possibility of prejudice. Id. at 1253. Because defendant's counsel did not argue for a downward departure from the sentencing guidelines, the defendant made a sufficient showing to require resentencing with a new lawyer. Id.
The Second Circuit addressed a similar situation in Lopez v. Scully, 58 F.3d 38, 40-42 (2d Cir. 1995), where a defendant who had pleaded guilty filed a motion to withdraw his plea, claiming shortcomings in counsel's representation led to the plea. At the sentencing hearing, counsel denied the allegations in the motion. Id. at 40. The court found that counsel had an actual conflict of interest at the sentencing because to admit the defendant's allegations would be admitting ethical violations, and to dispute the allegations would be telling the court the defendant had made false allegations. Id. at 41. The lawyer in Lopez "put his own interests ahead of his client's by denying the truth of Lopez's allegations and thereby attacking his own client's credibility." Id. The court found the lawyer's performance was adversely affected in not asking the trial court for a lower sentence, even though it had previously stated its sentencing intentions. Id. at 42.
In the present case, defense counsel's actions went further than the lawyers in Shorter and Lopez. Counsel reported to the district court that defendant had requested counsel to engage in some unspecified unlawful activity in connection with the case. Having reported defendant's request, counsel created an actual conflict of interest with the defendant. Counsel admitted that he could not prepare to represent defendant in this situation.
Defendant had ample reason to request a new lawyer. After the jury was selected, defense counsel told the court of plea negotiations that would subject defendant to a sentencing guidelines range of thirty-one to thirty-eight months. Not only was there no such range, but also after going to trial and receiving some upward adjustments, defendant's sentencing guidelines range was only eighteen to twenty-four months. Thus, a plea with the possibility of a downward adjustment for acceptance of responsibility, and the elimination of an upward adjustment, would have resulted in a substantially more lenient sentence than defense counsel told defendant would be imposed.
Defense counsel referred, apparently incorrectly, to Dede's plea agreement in opening statement, although it is clear counsel had no idea what the agreement provided. (11)
Counsel did not dispute that he had not visited defendant for the twelve days immediately preceding trial. At the beginning of the evidence, defense counsel made an objection, but told the district court he thought the objection was not meritorious, but was making it only because defendant wanted it made. Defense counsel admitted he might have a conflict because of his connections to Signet Bank and relationship with a witness, which was never fully explained to defendant. The defendant wore a prison jumpsuit, which was specifically identified as such by one witness, throughout the trial, with no request or attempt by defense counsel to obtain regular clothing. Defense counsel failed to object to innumerable instances of hearsay evidence. The district court did not help this situation when, in response to one of defense counsel's hearsay objections, it inexplicably told the jury the evidence was hearsay, but could be considered for whatever it was worth. Counsel elicited the hearsay evidence that the loan applicant had a British accent. Several witnesses expressed their opinion, without any objection, that a fraud was being committed -- the very issue the jury had to decide.
Defense counsel demonstrated his lack of preparation by initially disclaiming knowledge of the witnesses' viewing of photo spreads, and then withdrawing the objection when the government pointed out the material had been provided to him in discovery. He made no effort to suppress items seized from defendant's car until the middle of trial.
After defense counsel created the conflict with defendant, there were numerous instances of its adverse effect on the representation. The defendant was shackled for one day and defense counsel made little effort to follow through on whether defendant wished to waive his presence, so the jury would not see him shackled. There was no objection to the real David Greene's testimony about the effects on his credit rating, which was irrelevant to the charges in the case, and was also hearsay testimony. Counsel also failed to make any motion to exclude defendant's prior convictions if he testified, simply accepting the word of the government that they were admissible. The district court, when advising the defendant about testifying, constantly reminded him that if he did so he could be impeached with the prior convictions.
Defense counsel elicited the fact of another arrest of defendant that had not been mentioned, when some items were seized from defendant. Counsel also urged defendant to participate as co-counsel, indicating to defendant that counsel was incapable of properly defending the case.
Defense counsel also put himself in the position of improperly talking to a juror, and then refuting the juror's testimony abut the substance of the conversation, to try to minimize counsel's misconduct. This episode, completely precipitated by defense counsel's conduct, again put him in a conflict of interest situation where his interest in refuting the juror's testimony was adverse to defendant's interest in obtaining complete disclosure of the situation. The discrepancy as to when the conversation took place was unexplained, and even under defense counsel's version he waited until the end of the day to bring the situation to the court's attention, when the conversation had taken place in the morning.
Defense counsel raised no objection nor question about the subsequent revelation that another juror had overheard a conversation about the strength of the case. Given his own malfeasance, counsel may have been reluctant to make an issue of this other instance.
In addition, there was only one item of evidence being considered for the defense case to try to show that Dede acted without defendant's help, which was the crucial issue for the only charge properly brought in D.C. Defense counsel repeatedly blamed defendant for the failure to obtain the evidence, telling the court it would therefore be justified in excluding the evidence, which the district court did. Although the subpoena for the material had been signed six days previously, defense counsel kept misrepresenting that defendant had only brought it up two days before. Once again, defense counsel was in a conflict of interest situation, because by blaming the failure to obtain the material on defendant, counsel's interests were opposed to those of defendant. As a result, no evidence was presented on defendant's behalf.
Finally, at sentencing defense counsel argued against an upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1, based on defendant's testimony at the suppression hearing. The district court's view of that issue could hardly be free of the fact that counsel had told the court that defendant asked counsel to do something dishonest.Defense counsel justified his actions in revealing the information to the court on the grounds that he had an ethical obligation to reveal the information. Counsel never cited the source of the obligation. In fact, it appears that counsel's obligation was just the opposite -- not to reveal the defendant's confidences to the court and the government. Defense counsel clearly should have told defendant that counsel would not engage in any criminal or fraudulent conduct and he should have told the defendant to stop making any such suggestions. Nothing, however, in Rule 3.3 of the D.C. Rules of Professional Conduct required any revelation to the court of the problem. In fact, Rule 1.6 (12) apparently forbade revelation of the information. Defense counsel's explanation that the matter involved his making inaccurate representations clearly did not bring the matter within Rule 1.6(c).
The present case is, therefore, completely different from Nix v. Whiteside, 475 U.S. 157 (1986), where the Court found no breach of a professional duty where a lawyer threatened that, if his client committed perjury, the lawyer would disclose that fact to the court. In Nix, the lawyer succeeded in dissuading the client from committing perjury, and thus never did reveal any confidence to the court. The lawyer's actions in Nix did not breach any professional duty.
In the case of client perjury, Rule 3.3(b) first requires the lawyer to dissuade the client from committing perjury. This is consistent with Nix, 475 U.S. at 169, because, before "disclosing to the court a belief of impeding client perjury . . . the lawyer must . . . have attempted to dissuade the client from committing the perjury." United States v. Long, 857 F.2d 436, 446 n.6 (8th Cir. 1988). If that is unsuccessful, the lawyer must move to withdraw. Under Rule 3.3(b), if the lawyer cannot dissuade the client or withdraw "without seriously harming the client," the defendant can be put on the stand to testify in narrative fashion. Serious harm to the client should preclude withdrawal only where the client would be "significantly prejudiced, such as by express or implied divulgence of information otherwise protected by Rule 1.6." Comment to Rule 3.3(b).
In the present case, counsel made no attempt to dissuade the client from making improper suggestions, but simply reported defendant to the court, divulging protected information, and thereby seriously prejudicing him. The district court made no finding that defendant had either "waived by conduct" or "forfeited" his right to counsel. See United States v. Goldberg, 67 F.3d 1092, 1099-1103 (3d Cir. 1995). Defendant repeatedly requested a new lawyer in light of the shortcomings of defense counsel. Allowing the trial to proceed in the present case meant the case proceeded before a "judge who knows that defense counsel is willing to state that he knows his client is a liar," and it "feature[d] a defense 'team' torn asunder by mistrust and recrimination." 1 Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, § 3.3: 219, p. 614 (2d Ed.) (emphasis in original).
In United States v. Litchfield, 959 F.2d 1514, 1517 (10th Cir. 1992), defense counsel told the district court The district court should have declared a mistrial because of the conflict of interest where defense counsel admitted that he could not continue to prepare to represent the defendant. Unfortunately, that proved all too true, and defense counsel's performance was adversely affected by the conflict, thus requiring a new trial.
1. "APP" refers to the appendix filed in conjunction with this brief. The transcripts of the proceedings are referred to by the date and page number of the transcript. Because all the relevant court proceedings took place in 1995, the year is omitted from all the dates.
2. Outside the presence of the jury, defense counsel moved to exclude evidence of the out-of-court identifications claiming that the testimony was the first he had heard of the procedures, and that the government had not disclosed the process to him or shown him the pictures (2/16: 97-98). The government represented that it had provided copies of all the photo spread materials to defense counsel and had disclosed pretrial that the witnesses identified defendant from the photo arrays (2/16: 100). Defense counsel then withdrew his objection (2/16: 100-101).
3. Yearley also brought out the fact that defendant was standing trial while dressed in a prison jumpsuit (2/16: 135).
4. Defense counsel, at that point in the testimony, approached the bench, and stated that, while he had not filed any motion, defendant contended the items seized from the Nissan should be suppressed, and defendant wanted to object to the search of the vehicle on Fourth Amendment grounds (2/22: 68). The district court ruled that the seizure was perfectly proper because it was after the arrest, outside the Bank, and in close proximity (2/22: 69).
5. Outside the presence of the jury, the government told the district court that Dede had left the halfway house where he had been while awaiting disposition of his case, and that the government was unable to find him (2/22: 144).
6. In fact, she was not called as a witness.
7. February 17, 1995, was a Friday. The following Monday was a holiday.
8. The next day, one of the jurors got on the elevator with the prosecutor and heard someone say twice, "you've got a good case" (2/23: 24). While the juror believed she could be fair and impartial, she preferred that people keep quiet on the elevator (2/23: 26). No one challenged this juror.
9. The district court indicated that it would have admitted the evidence pursuant to Rule 404(b), if the other schemes had not been charged in the indictment.
10. In Shark, 51 F.3d at 1076, this court held that function between defense counsel and the trial court was insufficient as a matter of law to invoke the conflict analysis of Cuyler. The analysis in Shark does not affect this court's decision in United States v. Sayan, 968 F.2d 55, 64-65 (D.C. Cir. 1992), that conflicts between counsel and the defendant are of the type analyzed under Cuyler.
The Fifth Circuit recently refused to apply Cuyler to any situation beyond multiple representation. Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc). The court in Beets noted that no other court of appeals, including this court has so limited the applicability of Cuyler. 65 F.3d at 1266 n.10.
11. There was no explanation of why defense counsel had not received a copy of Dede's plea agreement as Brady material.
12. Rule 3.3 and Rule 1.6 are reproduced in their entirety in the addendum to this brief.