SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
PAUL B. xxxxxxx,
UNITED STATES OF AMERICA,
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
FEDERAL PUBLIC DEFENDER
Assistant Federal Public Defender
Counsel of Record
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
I.Whether the district court erred in admitting other-crimes evidence under FRE 404(b) as probative of appellant's intent to commit the charged offenses and as showing a specific plan to commit a series of crimes that were connected to each other?
II.Whether the district court erred in admitting out-of-court statements contained in Western Union transfer records as business records under FRE 803(b) and as co-conspirators statements, as defined by FRE 801(a)(d)(2)((E)?
III.Whether the district court erred in excluding the testimony of a defense linguistics expert regarding his analysis of over 100 hours of audiotapes, on the grounds that the testimony would not be helpful to the jury and would tend to confuse the jury.
IV.Whether the district court erred in limiting the cross-examination of a crucial government witness by refusing to permit appellant's counsel to confront and cross-examine the witness about portions of his videotaped conversations with Drug Enforcement Administration (DEA) agents that impeached his trial testimony and demonstrated his bias.
V.Whether the mandatory life sentences imposed upon appellant were in violation of the ex post facto provision of the United States Constitution.
LIST OF PARTIES BELOW
The parties to the proceedings in the Court of Appeals were Paul xxxxxxx, as appellant, and the United States of America, as appellee. Dennis L. Mitchell was a co-defendant at trial and his case was consolidated with this case for appeal.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
PAUL B. xxxxxxx,
UNITED STATES OF AMERICA,
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
The petitioner, Paul B. xxxxxxx, respectfully prays that a Writ of Certiorari issue to review the judgment and opinion of the United States Court of Appeals for the District of Columbia Circuit entered March 28, 1995, and the order of the court of appeals denying his petition for rehearing, entered on June 7, 1995.
The opinion of the United States Court of Appeals for the District of Columbia Circuit, affirming the judgment of conviction, is reported at 49 F.3d 769 and appears in the Appendix at pages A-1 through A-17.
The judgment of the of the court of appeals was entered on March 28, 1995. (A- ). A petition for rehearing was denied on June 7, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. Sec. 1254(1).
PROVISIONS OF LAW INVOLVED
1.Rule 404(b)of the Federal Rules of Evidence provides in relevant part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . "
2.Rule 803(6) of the Federal Rules of Evidence provides in relevant part:
"A memorandum, report, record, or data complition,
in any form, or act, events, conditions, opinions,
or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted
business activity, and if it was the regular practice
of that business activity to make the memorandum,
report, record, or data compilation, all as shown by
the testimony of the custodian or other qualified
witness, unless the source of information or the
method or circumstances of preparation indicate lack
of trustworthiness. The term "business" as used in
this paragraph includes business, institution,
association, profession, occupation, and calling of
every kind, whether or not conducted for profit."
3.Rule 801(d)(2)(E) of the Federal Rules of Evidence provides in
"A statement is not heresay if. . .a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."
4.The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed; which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defence."
5.Ex Post Facto clause of the United States Constitution
"No Bill of Attainder of ex post facto Law shall be passed."
STATEMENT OF THE CASE
On or about May 20, 1992, a federal grand jury returned a one-count indictment charging petitioner with conspiracy to distribute in excess of 50 grams of cocaine base. On or about November 4, 1992, a nine-count superseding indictment was returned against petitioner and Dennis L. Mitchell. Count One charged both of them with conspiracy to distribute and possess with the intention to distribute in excess of 5 kilograms of cocaine and in excess of 50 grams of cocaine base. Count II charged petitioner with engaging in a continuing criminal enterprise. Counts Three through Eight charged petitioner with six counts of distribution of more than 50 grams of cocaine base, Mr. Mitchell was charged only in Count VI. Count nine sought to forfeit cash proceeds of $2,000,000. On May 11, 1993, at the request of the government, the district court dismissed Counts Three through Seven of the indictment
The final retyped indictment contained four counts and charged petitioner and Mr. Mitchell in Count One with a drug conspiracy, and petitioner alone in Counts Two and Three with engaging in a continuing criminal enterprise and with distributing in excess of 50 grams of cocaine base, respectively. Count IV sought the forfeiture of $2,000,000.
Trial commenced before the district court on May 3, 1993. A jury was empaneled on May 11, 1993. On August 18, 1993, the jury returned verdicts of guilty on all counts.
Subsequent to the verdict, petitioner filed three motions for new trial. The first motion for new trial, filed on September 20, 1993, in pertinent part, renewed his objection to the introduction of other crimes evidence and to the court's receipt of that evidence without giving the jury an immediate cautionary instruction.
On December 15, 1993, the district court denied the motion for new trial based upon the admission of other crimes evidence. On January 5, 1994, the court issued a Memorandum Opinion detailing the reasons for the denial. A written order followed on January 10, 1994.
On January 14, 1994, petitioner filed a Memorandum in Aid of Sentencing raising constitutional challenges to the disparate sentence to which he was subjected by virtue of convictions for offenses involving cocaine base rather that cocaine hydrochloride. He also challenged the imposition of a sentence of life without parole on the Continuing Criminal Enterprise count as violative of the proscription against ex post facto laws. The court, after hearing argument on those challenges, found no constitutional infirmities in the sentencing scheme, and imposed sentence.
On March 28, 1995, the United States Court of Appeals for the District of Columbia Circuit affirmed the judgment of conviction against petitioner as to all counts.
(See A-1 to A-17). The petition for rehearing and suggestions for rehearing in banc were denied on June 7, 1995. (See A-18 to A-19).
STATEMENT OF FACTS
Petitioner was charged in a superseding indictment with conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base, with engaging in a continuing criminal enterprise, and with related drug offenses. In addition, forfeiture of $1,000,000 was sought against him.
The government presented evidence that for nearly seven years, petitioner distributed cocaine and cocaine base to various persons in several different cities by "fronting" the cocaine, and telling the buyers how much money to bring him once the drugs were sold. According to the government, petitioner made hundreds of thousands of dollars from these drugs activities and he moved some of that money using Western Union money transfers.
While in San Clemente, California, in the spring of 1992, petitioner was involved with Khalifeh Abujudeh in methamphetamine deals. At the same time, the government claimed, he was trying to import several kilograms of cocaine from Mexico.
The defense introduced evidence that petitioner tried to "scam" money from several of the prosecution witnesses by promising them cocaine, but that he did not deliver on those promises. The methamphetamine deal was orchestrated by Abujudeh, who got most of the proceeds from the methamphetamine sale, and who
enticed petitioner to do the deal, claiming that he had to pay his attorney.
Petitioner introduced evidence that he earned money in legitimate businesses, including a bail bonds business, a restaurant, a record company and a sportswear concern. His economic circumstances were so desperate in 1991 and 1992 that his family was dependent on public assistance.
REASONS FOR GRANTING THE PETITION AND
ISSUING A WRIT OF CERTIORARI
I.THIS COURT SHOULD GRANT REVIEW IN THIS CASE TO DEFINE
THE LIMITS TO WHICH THE GOVERNMENT MAY GO IN ENGINEERING
UNCHARGED CRIMINAL ACTIVITY, EVIDENCE OF WHICH IS ADMITTED UNDER FRE 404(b).
The panel of the court of appeals, in affirming the district court's decision to admit the other-crimes evidence, held that evidence of the uncharged methamphetamine deals was in spite of the fact that a government informant enticed petitioner to do the deals, was relevant, because the evidence demonstrated petitioners intent to engage in a continuing criminal enterprse, in part because petitioner's defense was that he was not dealing in cocaine but was scamming the government's witnesses. 49 F.3d at 775-776. The court's opinion misinterpreted the defense argument that because the government engineered the very criminal activity which was subsequently admitted as FRE 404(b) evidence, that activity did not prove petitioner's intent.
B.Because the government engineered and orchestrated the
methamphetameine deals, the other-crimes evidence was
not probative of petitioner's intent or or a specific
plan to commit a series of offenses that were conected
to each other. .
The government's primary witness about the methamphetamine deals was Khalifeh Abujudeh.Abujudeh, a cooperating witness, explained that he enticed petitioner into coming to San Clemente, California, to do a deal with him, using the ruse that he desperately needed money to pay the attorney in his pending California case. Petitioner agreed to bring some methamphetamine to Abujudeh, which Abujudeh could then sell for several thousand dollars. Petitioner made several trips to a resort hotel owned by Abujudeh's father in San clemente, California. , but, the methamphetamine was never delivered. Abujudeh's plan, unbeknownst to petitioner, was to have petitioner sell the methamphetamine to an undercover police officer. While in San Clemente, petitioner did get some ephedrine, which he planned to sell, but that sale fell through.
Even before the ephedrine sale fell through, Abujudeh had approached his own methamphetamine supplier, trying to sell him the ephedrine in return for finished methamphetamine and cash. Abujudeh owed the supplier approximately $80,000 and he negotiated a $10,000 reduction in that debt as part of the payment for the ephedrine. Abujudeh and the police planned to have petitioner sell the finished methamphetamine to an undercover police officer.
By the time petitioner's sale fell through, Abujudeh had everything in place to sell the ephedrine to his own supplier. Dennis Mitchell took the ephedrine to the supplier, and returned with $5,000 in cash and one pound of finished methamphetamine. Mitchell then delivered the pound of methamphetamine to a "buyer", who was really an undercover officer posing as Abujudeh's former roommate, and brought Abujudeh and petitioner $10,000 cash. From the $10,000 in government's funds, Abujudeh received $5500. His family received a substantial sum of the remainder, to pay petitioner's expenses in staying at the hotel, and to repay a loan from Abujudeh's uncle for the initial purchase of the ephedrine.
Before the trial, the government filed a notice seeking to admit the methamphetamine evidence. The government argued that the evidence was probative of intent, knowledge, and absence of mistake. The defense responded that the proffered evidence was inadmissable as 404(b) evidence because the methamphetamine activity was entirely unrelated to the events charged, and the under Fed. R. Evid. 403, the probative value of the evidence was substantially outweighed by its prejudicial impact. In its reply, the government argued for the first time that the 404(b) notice had been filed merely as a precaution, and that the evidence was actually intrinsically connected to the cocaine conspiracy since the methamphetamine deals were carried out in order to buy cocaine. Alternatively, the government argued, the proffered evidence was admissible to prove intent or as part of a common scheme or plan under Fed. R. Evid. 404(b). In its pretrial ruling, the court determined to admit the evidence as proof of the charged cocaine conspiracy.
At the close of Abujudeh's direct examination, the defense moved to strike the methamphetamine testimony and for a mistrial, arguing that the government had not demonstrated how the methamphetamine deal supported the cocaine conspiracy and that the defendants would be substantially prejudiced by the admission of the evidence under Fed.R. Evid. 404(b) because the jury was not instructed at the time the evidence was presented what limited use to make of the evidence.
The court agreed that the government had failed to show the promised connection between the methamphetamine dealings and the cocaine conspiracy. Nonetheless, the court ruled that the evidence was "typical 404(b) evidence" showing intent and knowledge, that the probative value of the evidence was not substantially outweighed by it prejudicial impact, and that a limiting instruction would cure any prejudice. Defense motions to strike and for a mistrial were denied.
On the eight day after the first testimony involving methamphetamine was presented, the court finally instructed the jury that the evidence of the methamphetamine deal was being admitted to show the defendants' intent, knowledge, and lack of mistake and for no other purposes.
In its final instructions, the court stated that the evidence was being admitted as probative of appellant's intent to commit the charged offenses or of a specific plan to commit a series of crimes that were connected to each other. The methamphetamine dealings were not sufficiently similar to the charged offenses to be probative on the issue of intent. The most significant dissimilarity was that the level of governmental involvement in the methamphetamine deals was so crucial and so pervasive that the district court correctly concluded:
I think Mr. Abujudeh, in a fair reading of the evidence clearly put together this arrangement for the sale of this methamphetamine. Mr. xxxxxxx was otherwise trying to make a deal, but clearly, Mr. Abujudeh put this deal together.
Given Abujudeh's managerial role in the methamphetamine deals, this other crimes evidence proves nothing about Mr. xxxxxxx's intent to engage in a criminal enterprise, to participate in a conspiracy, or to distribute cocaine base.
For other crimes evidence to be relevant to show intent, the two sets of offenses must be sufficiently related so that the uncharged act illuminates the intent of the actor in the charged conduct. In United States v. Nicely, 922 F.2d 850 (D.C. Cir. 1991), the court reversed the convictions on counts charging separate conspiracies, finding that the conspiracies were improperly joined. The government argued that even if the two conspiracies were separate and unconnected, evidence of each would be admissible at a trial of the other under Fed.R.Evid. 404(b), and that therefore the joinder was not prejudicial. However, the court concluded that since the two conspiracies were not substantially alike, the admission of one to show intent or knowledge with regard to the other was erroneous.
In cases in which courts have approved the admission of other-crimes evidence to show intent or knowledge, the charged and uncharged offenses have been sufficiently similar so that relevance is apparent. See United States v. Clarke, 24 F.3d 257, 265 (D.C.) Cir. 1994)(testimony that the defendants had engaged in 25 previous cocaine sales very similar to the charged offenses was admissible to show that the cocaine they possessed was meant to be distributed and that they were working in concert); United States v. Rogers, 918 F.2d 207 (D.C. Cir. 1990)(evidence that defendant had recently pled guilty to possession of crack cocaine after throwing nine bags of crack out of an apartment window was relevant to show that another bag containing crack cocaine, which he threw into a sewer as police approached, belonged to him).
In the instant case, the methamphetamine dealings were instigated and orchestrated by a government agent, Khalifeh Abujudeh. He admitted that he repeatedly prevailed upon petitioner, his friend from high school, to set up some kind of drug deal, pretending that he needed money to pay his attorney fees. He arranged the methamphetamine sale to the undercover officer. His uncle provided some of the money for the ephedrine; he negotiated with his supplier to process the ephedrine for cash and finished methamphetamine; he first struck a deal with the supplier that would have netted him a $10,000 reduction in an $80,000 debt; and even when those terms were renegotiated, he and his family got the lion's share of the 410,000 which the undercover police officer paid for the methamphetamine. Nothing about petitioner's involvement in the deal illuminates his intent to commit the charged offenses.
(2) Specific plan to commit a series of crimes
connected to each other.
The court admitted the methamphetamine evidence on an alternative ground, that the jury could find from the evidence a specific plan to commit a series of crimes connected to each other and thereby determine whether "the defendants were the persons who committed the offenses charged in the indictment." The defense objected to that section of the court's instruction, on the grounds that there was no evidence of a common scheme or plan and that the language would confuse the jury.
Fed.R.Evid. 404(b) makes other-crimes evidence admissible to prove a plan or scheme. However, the cases in which courts have approved the introduction of other crimes evidence to show a common scheme or plan fall into two categories. In United States v. Lewis, 693 F.2d 189, 193 (D.C. Cir. 1982), the court upheld the admission of the evidence regarding uncharged money orders because it showed that the defendant had a scheme which included the offenses for which he was on trial and tended to prove the existence of a "definite project intended to facilitate completion of the crime in question." Id., (citation omitted.
The other category of cases where evidence is admissible to show a plan or common scheme are those where the charged and uncharged offenses are so similar in nature and "so related to each other that proof of the one tends to establish the other." Drew v. United States, 331 F.2d 83, 90 (D.C. Cir. 1964).
Neither of the grounds discussed above justifies admission of the methamphetamine evidence in this case. Unlike Lewis, there was no showing that the methamphetamine deals and the charged offenses were all part of some larger plan. In fact, the court expressly rejected that notion when it found that the government had failed to show that the methamphetamine deals had funded the cocaine conspiracy or were otherwise connected to the conspiracy.
The second class of cases, exemplified by Drew, are also inapposite. In those cases, since the defendants had committed the uncharged offenses, it was highly likely that they had committed the charged offenses as well, because both were so similar. For the reasons discussed earlier, there is no similarity between the methamphetamine deals, which were in substantial respects the handiwork of the government, and the charged offenses. Therefore, the court's alternative basis for admitting the methamphetamine deals was not supported by the evidence.
Since the methamphetamine evidence was not probative of intent or a common scheme or plan, and was not admissible for any other legitimate purpose, it should have been excluded.
The government's case rested largely on the testimony of cooperating witnesses and the audiotapes of their conversations with petitioner. The government presented no evidence that petitioner was ever arrested with drugs for sale. He presented a defense, through his testimony and that of witnesses, that he had promised to deliver cocaine to various persons in an effort to scam money from them. The jury was given a special verdict form, in which the government summarized its evidence of drug transactions involving petitioner. Of the 27 transactions listed on the verdict form, the jury found that 13 were not proven beyond a reasonable doubt. Against this backdrop, the methamphetamine evidence substantially prejudiced petitioner's right to a fair trial.
II.THIS COURT SHOULD GRANT REVIEW IN THIS CASE BECAUSE PETITIONER'S RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE ADMISSION OF OUT OF COURT STATEMENTS CONTAINED IN WESTERN UNION TRANSFER RECORDS.
The court received into evidence, over objection, Western Union money transfer documents. Although troubled by the records' questionable admissibility, the court ultimately ruled that they were admissible as business records to prove the recipient's identity but not to prove the sender's identity. However, the prosecution persuaded the court that the purported sender was admissible as part of the recipient's co-conspirator statement confirming the transfer in order to obtain the money. Contrary to the court's ruling, the records were not admissible as business records under Fed. R. Evid. 803(6) because the identities of the sender and the recipient were not adequately verified. Moreover, the foundational requirements of Fed. R. Evid. 801(d)(2)(E) were not met and the documents were not relevant to the charged conspiracy. Therefore, the erroneous admission of the money transfer records violated petitioner's rights under the Confrontation Clause.
This court, in evaluating the admission of hearsay evidence, "will reverse the district court's evidentiary rulings only if the rulings were and abuse of discretion." United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994).
In its case in chief, and in rebuttal, the government offered Western Union transfer records into evidence. To authenticate the records, the government called Jennifer Salton, a records custodian for Western Union. She testified about the forms that are generated and the procedures that are followed when money is transferred via Western Union. She explained that when a customer sends money, the customer completes a "to send" form, with his/her name, address, telephone number, and whether payment is to be made on a test question, in lieu of the recipient presenting identification. Id., p. 922. Western Union will make payments up to $500 on a test question alone, but a physical description of the recipient is required for payments over $500. Id. p. 941. If the sender does not instruct payment on a test question, then the recipient must present a valid identification in order to receive payment. Id. p. 944.
The government argued that the records were admissible because they reflected the transfer of money between co-conspirators, during the time frame and in the geographical locations of the cocaine conspiracy. The defense objected to the records on the grounds that the identities of the sender and the recipient were not verified, there was no evidence that the money transfers were in the furtherance of the conspiracy, and admission of the documents violated petitioner's right to confront and cross-examine witnesses against him. Id., pp. 5174-76.
Initially, the court admitted the records under the Fed. R. Evid. 803(6), finding that they were properly authenticated because one of the parties to the money transaction could be linked to the conspiracy, the time period and the geographical locations reflected on the money transfers coincided with testimony about the conspiracy, and an inference could be drawn that the money was generated from drug dealings because the money was being shipped from St. Louis to California. Additionally, the court found that there was no Confrontation Clause violation because the various witnesses the did testify about the records were subjected to cross-examination. Id., p. 5180
Following a recess, the defense renewed its objection, arguing that United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), required verification of the identity of the party sending the money in order for the records to be admissible as business records. After further argument, the court found that the verification requirement of Patrick was satisfied because "there ha[d] to be communication [by the recipient] with the sending end; that would verify that there was a relationship between these people who were using the names of the people engaged in this organization."
However, on the following day, the court reconsidered, sua sponte, the "serious matter" of the admission of the money orders in light of Patrick. Because Western Union did not require verification of the identity of the sender of the money, the court was not satisfied that the documents were admissible as business records. Id. , pp. 5788-89.
In response, the government advanced a new theory that the documents were admissible as co-conspirator statements to prove the purported identity of the sender, arguing that when a receiver went to Western Union to pick up money, and signed a form indicating from whom the money was expected, the receiver was making a statement in furtherance of the conspiracy, so long as both the purported sender and recipient were identified as co-conspirators. The defense countered that even if both parties to the transaction could be properly identified, the statement by the recipient was not evidence that the money transfer was in furtherance of the conspiracy. Id., pp. 5804-06, 5812. The court ruled that the identity of the recipient of the money orders was verified, so the statement that the recipient received money could be admitted as a business record, but that the actual identity of the sender could not come in under that theory. Therefore, the complete statement on the money orders, that the purported sender sent money to the recipient, would be admitted as a co-conspirator statement, with a limiting instruction that the identity of the sender was not being admitted for its truth.
Petitioner's Sixth Amendment rights under the Confrontation Clause were violated by the admission of the hearsay statements in the Western Union money orders. "It is a truism that `hearsay rules and the Confrontation Clause are generally designed to protect similar values.'" United States v. Houser, 746 F.2d 55, 62 (D.C. Cir. 1984)(quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). "The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant who's out-of-court statement is introduced into evidence." United States v. Bruner, 657 F.2d 1278, 1284 (D.C. Cir. 1982) (quoting Anderson v. United States, 417 U.S. 211, 220 (1974). Where an exception applies to the admission of hearsay evidence, it is because the exception is so firmly rooted by its own "indicia of reliability" or "particularized guarantees of trustworthiness," that it comports with Confrontation Clause strictures. Bourjaily v. United States, 443 U.S. 171, 182-83 (1987). As this court recognized in Houser, when "[c]onstitutional values are implicated, the `circumstantial guarantees of trustworthiness' justif[ying] departures from the general rule excluding hearsay' should therefore be closely examined. 746 F.2d at 62.
In Idaho v. Wright, 110 S.Ct. 3139 (1990), the court articulated a two-pronged test to determine whether the introduction of hearsay statements violated an accused's Sixth Amendment rights: (1) The Confrontation Clause is not violated if the hearsay statement "falls within a firmly rooted hearsay exception;" or (2) even if it does not fall within such an exception, it is "supported by showing a particularized guarantees of trustworthiness." Id. at 3147 (quotations omitted). If the statements cannot be demonstrated to fall within a firmly rooted hearsay exception or to otherwise possess guarantees of trustworthiness, the government bears the burden "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967).
Hearsay evidence is defined as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." Ohio v. Roberts, 448 U.S. at 62 n.4 (1980)(citation omitted). The business records exception to the hearsay rule, Fed. R. Evid. 803(6), permits the admission of a business record as evidence of the truth of matters asserted in it if the record was made at or about the time of the event by a person with knowledge, and was made and kept in the course of a regularly conducted business activity.
This hearsay exception is not applicable when a business record is prepared by an employee from information provided by an outsider, which is not verified. Fed. R. Evid. 805; United States v. Patrick, 959 F.ed 991, 1000-01 (D.C. Cir. 1992)(a store receipt is not a business record admissible to prove purchaser's identity and address where there was no showing that purchaser's information was verified); United States v. Lieberman, 637 F.2d 95, 101 (2d Cir. 1980)(a hotel guest card was inadmissible to prove its truth where the hotel employee had not examined any identification to verify information provided).
In the instant case, according to the Western Union records custodian, the recipient of a money order was not required to provide identification to receive payment if the recipient could answer a test question posed by the sender, and additionally, for payment over $500, the recipient matched a physical description provided by the sender. The defense objected to the admission of the money transfer records on the ground that the identity of the recipient was not customarily verified. The court concluded that the receiver verified his/her identity by providing a "secret codeword," even where no identification was required. However, under Patrick, a codeword cannot establish a party's identity. What Patrick requires is "reliable evidence" that the recipient is who he/she purports to be. United States v. Patrick. 959 F.2d at 1002. Merely having access to information provided by eh sender of money does nothing to guarantee that the person who picks up the money is who he/she claims to be. Without proper authentication of the recipient, the admission of the money orders as business records was error.
The court admitted the money transfer records on the ground that the statement by the recipient, in picking up money, that the sender had sent him/her money, was a co-conspirator statement, under Fed. R. Evid. 801(d)(2)(E). Fed. R. Evid. 801(d)(2)(E) "embodies the standing doctrine that when two or more individuals are acting in concert toward a common goal, the out-of-court statements of one are not hearsay and are admissible against the others, if made in furtherance of the common goal." United States v. Weisz, 718 F.2d 413, 433 (D.C. Cir. 1983). This circuit has determined that there must be "substantial evidence independent of the statements [at issue] that a conspiracy existed, that the defendant and the out-of-court declarant were members of the conspiracy, and that the statements were made in furtherance of it." United States v. Washington, 952 F.2d 1402,, 1407 (D.C. Cir. 1991). The district court must find these prerequisites by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. at 175.
In the instant case, there was no evidence that many of the individuals named on the money transfer records were co-conspirators, let alone acting in furtherance of the cocaine conspiracy. There was no evidence at all connecting petitioner to many of the recipients or senders. In other instances, the money orders bore the names of petitioner's relatives or friends. However, "mere association with co-conspirators is insufficient to show that the declarant was a participant in the conspiracy." United States v. West, 670 F.2d 675, 685 (7th Cir. 1982). Because as to may of the persons named in the transfer records, the government failed to furnish independent proof that the recipients were members of the conspiracy, the court was left with the hearsay statement itself, i.e., that the recipient received money from the sender.
The hearsay statement could not support its own admission. "An otherwise inadmissible hearsay statement cannot provide the sole evidentiary support for its own admissibility -- it cannot lift itself into admissibility entirely by tugging on its own bootstraps." Bourjaily v. United States, 483 U.S at 184 (Stevens, J. concurring). Without any independent evidence to establish that the senders and recipients were co-conspirators, the money transfer records were inadmissible.
Further, the court's proposal to give a limiting instruction as to the admission of records as co-conspirator statements. Even if the recipient was shown to be a co-conspirator, the fact of receiving money from someone uncontested to the conspiracy would have no relevance. Moreover, if both senders and recipients names in these transfers had been connected to the charged conspiracy, there was no evidence outside of the money transfers themselves to establish that the money was received in furtherance of the conspiracy. The only circumstantial evidence with regard to the transfers was that some of the purported senders recipients were co-conspirators and that the money orders were sent during a time frame and to or from geographical locations connected to the conspiracy. However, nothing was shown about the intent or purpose of the contested transactions. Merely showing that money was received by an alleged co-conspirator without any showing that the money transfer served some aim of the conspiracy fails to meet the threshold requirement that there be a "specific intent to further [a] common unlawful objective." United States v. Tarantino, 846 F.2d 1384, 1392 (D.C. Cir.), cert. denied, 488 U.S. 867 (1988). Given these failings in proof, the statements should not have been admitted as co-conspirator statements.
F.The Erroneous Admission of the
Money Transfer Records Prejudiced Petitioner
In order for the jury to find petitioner guilty on the CCE count, they were required to find that he obtained "substantial" income or resources from engaging in a criminal enterprise. 21 U.S.C. § 848(a)(c). The erroneous admissions of the Western Union transfers allowed the jury to use the thousands of dollars reflected in the transfers as proof of this element of the offense. The contested money orders, over forty-two of them, totaled over $94,195. The government argued in its summation that the money orders demonstrated that petitioner acquire "substantial income." In fact, the money orders were the only documentary evidence of money being moved around by the conspiracy.
Unquestionably, the contested money orders constituted a major component of the government's proof of income, an element of the CCE offense. Because petitioner was prejudiced by the admission of the money orders, their admission was error.
III.THIS COURT SHOULD GRANT REVIEW IN THIS CASE BECAUSE THE DISTRICT COURT'S EXCLUSION OF THE EXPERT TESTIMONY OF A LINGUIST FOR THE DEFENSE WAS IMPROPER UNDER DAUBERT V. MERREL DOW. . .AND ABRIDGED PETITIONER'S SIXTH AMENDMENT RIGHT TO PRESENT A DEFENSE.
When the defense attempted to call Dr. Roger Shuy, a linguistics expert, to testify about the approximately 100 tape recorded conversations which the government had introduce into evidence in its case in chief, the government objected. After a voir dire examination of Dr. Shuy, the court found him fully qualified as a linguist, but declined to admit his expert testimony. Instead, the court permitted Dr. Shuy to testify as a lay witness, and allowed into evidence several charts which he had prepared. In admitting the charts while limiting Dr. Shuy's testimony, the court necessarily confused the jury as to the significance of the charts and the purpose for their admission.
The defense proposed to examine Dr. Shuy about his analysis of approximately 100 audiotapes of conversations among petitioner and various prosecution witnesses. During a voir dire examination of the expert, Dr. Shuy explained the science of linguistics, his analysis of the conversations n the three series of tapes, and his preparation of certain charts. He explained that he had analyzed sections of the Calvin Stevens tapes relating to a shipment of cocaine base received by Stevens in August, 1990 and to payment for that shipment, and based on that analysis, could draw certain inferences as to who sent the shipment and to whom money for the shipment was owed.
Dr. Shuy also noticed throughout the three sets of petitioner's conversational strategies of asking for money, promising, and deferring. The frequency with which these strategies were used permitted Dr. Shuy to draw certain inferences about petitioner's activities.
The analysis which he conducted is beyond the ability of the average layperson, Dr. Shuy explained, because the process requires knowledge of units of conversation, such as how to identify topics, and how to look for conversational strategies. A layperson would lack the necessary experience in listening to such a large volume of tapes and in identifying the relevant units. Dr. Shuy's analysis of the three series of tapes took between 50 and 60 hours.
At the conclusion of the voir dire, the defense argued that the proffered testimony would corroborate petitioner's anticipated testimony and would counter the government witnesses' interpretations of the tapes. The district court disallowed Dr. Shuy's expert testimony, finding that it would not aid the jury because the subject matter of the testimony, the taped conversations, was within the general knowledge of the jury and that the testimony would tend to confuse and mislead the jury because Dr. Shuy's analysis dealt only with recorded conversations between petitioner and government witnesses and many conversations among the participants were never recorded. Instead of permitting Dr. Shuy to testify as an expert, the court ruled that he could testify as a lay witness, simply to introduce redacted versions of charts he had prepared in the course of his analysis of the tapes.
The court's refusal to permit Dr. Shuy to testify as an expert deprived the defense of an essential witness. The testimony was
admissible under Fed.r.Evid. 702, because the proposed testimony constituted (1) scientific knowledge that (2) would assist the trier of fact to understand or determine a fact in issue. Daubert v. Merrell Dow Pharmaceutical, Inc., 113 S.Ct. 2786, 2794-95, 125 L.Ed. 2d 469 (1993). The requirement that expert testimony assist the trier of fact is primarily a condition of relevance. Daubert v. Merrell Dow Pharmaceutical, Inc., 113 S.Ct. at 2795." `Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (citing Fed.R.Evid. 401).
In the instant case, the district court found that the proposed testimony satisfied the first prong of the Daubert test, in that it was based on scientific knowledge. However, the court excluded Dr. Shuy's testimony under the second prong of Daubert, finding that it would not have been helpful to the trier of fact. While the decision as to admissibility is discretionary, discretion ". . . does not mean immunity from accountability." United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992). A court's exclusion of highly relevant expert testimony critical to a defense, when failing to provide a colorable reason for exclusion, constitutes an abuse of discretion. Id. at 788.
In Onumonu, the court reversed the defendant's conviction for heroin smuggling, finding that the trial court abused its discretion in refusing to permit the testimony of a defense expert. The central issue in the case was whether Onumonu knew that the condoms he carried contained heroin. He claimed he though that they contained diamonds. The defense proposed to call a gemologist to testify about diamond smuggling. The appellate court first determined that the proposed testimony was relevant to an issue at the trial, Onumonu's state of mind, because the testimony of the expert would have helped the jury answer whether Onumonu would likely have concealed diamonds in condoms. Id. at 787. The court next considered the requirement under Fed.R.Evid. 702 that the expert testimony be helpful to the jury. Concluding that the average New York juror knew nothing about diamond smuggling, the court found that the proffered testimony would have assisted the jury in resolving the contested issue whether Onumonu knew that the condoms contained heroin.
In the instant case, the district court concluded that the proffered testimony would not be helpful to the jury because the subject of the testimony, the taped conversations, was already before the jury and was therefore within the general knowledge. The court did not make an explicit determination on the record as to the relevance of the proffered testimony. However, it is clear that the testimony of Dr. Shuy went to a contested issue in the case, whether the tapes reflected petitioner's dealings in cocaine and therefore his intent to do the acts charged in the indictment, or, whether, as he contended, they showed his efforts to scam money from various participants in the conversations. Evidence about the expert's topic analysis, from which he was able to draw the possible inference that drugs received by Calvin Stevens in August, 1990, were sent by someone other than petitioner and that the money Calvin Stevens owed for the shipment was owed to someone other than petitioner, would have made petitioner's explanation more probable than it would have been without the testimony. Likewise, evidence about the expert's identification of conversational strategies used by petitioner, would have made petitioner's explanation more probable that it would have been without the testimony. Therefore, like the gemolist's proposed testimony in Onumonu, Dr. Shuy's testimony was relevant under Fed.R. Evid. 401
In this case, the court's only basis for concluding that the expert testimony would not be helpful was that the jury had listened to the tapes and could do so again, and that counsel could argue the content of the tapes in closing argument. That finding ignored the court's own observations that there were "a very large number of tapes" in evidence and that the taped conversations had been played for the jury at various times during "a very long trial." Moreover, the court ignored the testimony of Dr. Shuy that the analysis he performed was not one that could be done by laypersons. Dr. Shuy stressed the volume of the taped conversations, the fact that some of the recordings were of poor quality, that he had spent 50 to 60 hours listening to all of the tapes (the jury had heard only redactions of many of them), and that it was unlikely that the jury, without expert assistance, would discern the structure of the conversations simply by listening to the tapes.
The court excluded the testimony on the additional ground that it would confuse the jury, because the excerpts of the tapes which he analyzed were taken out of context because some of the conversations among the various actors were not recorded and therefore not available for evaluation. Of course, that same rationale would have supported the exclusion of the tapes from evidence at all.
Even if the court's concerns that some of the taped conversations were analyzed out of context were valid, that would not warrant exclusion of the expert testimony. In order for the relevant and helpful testimony of a qualified expert to be excluded, under Fed.R.Evid. 403, the prejudicial effect or the risk of confusion posed by the evidence must substantially outweigh its probative value. United States v. Downing, 753 F.2d 1224, 1241 n.22 (3rd Cir. 1985): "In view of the transcendent value of the criminal defendant's interest in the outcome of a criminal trial, added caution is appropriate where the prosecution rather than the defendant seeks to introduce the evidence." Inasmuch as Rule 403 is "an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence." Busby v. City of Orlando, 931 F.2d 764, 784 (11th Cir. 1991)(citation omitted), the court was in error in finding that the prospect of juror confusion outweighed the probative value of Dr. Shuy's testimony.
In Busby, the court reversed a decision of the trial court to exclude the testimony of an expert witness and several charts he had prepared. The raw data from which the charts were made was part of the record. The court found that absent expert testimony and the summary the expert prepared, the jury was left with the raw data and no way to summarize it or discern it meaning. The expert summary would have assisted the trier of fact, the court found, and so the witness should have been permitted to testify and to introduce the summary.
In this case, the district court admitted the charts prepared by the expert but precluded his testimony explaining them. Obviously, the court determined that the charts had probative value since they were admitted over government objection. If the charts were relevant, then the experts's method and protocol in preparing the charts was also relevant. What the jury received was concededly relevant evidence, without any guidance as to how to use the evidence or any explanation of its significance. After admitting the charts into evidence, the court should have permitted the expert to explain his analysis of the conversation and how that analysis was reflected on the charts. The district court's incongruous ruling caused the very harm that it sought to avoid by excluding the expert testimony -- confusion of the jury.
The testimony of Dr. Shuy was highly probative on a critical issue in the case, and, in fact, would have corroborated petitioner's theory of defense. In order to outweigh such highly probative evidence, the threat of confusion must be severe. Because Dr. Shuy's testimony would have explained the demonstrative evidence admitted by the court, it would have illuminated, rather than confused, the jury. Additionally, petitioner had a Sixth Amendment right to present a defense, which right was abridged by the court's error.
IV.This court should grant review in this case because
petitioner's right to confront and cross-examine a
crucial defense witness was denied by the district
court's preclusion of questioning about the witness'
videotaped conversations with DEA agents which
impeached his trial testimony and revealed his racial
A.Tom Pokorny's testimony.
Pokorny and petitioner were partners in the purchase of several kilograms of cocaine from Pokorny's source in El Paso. This cocaine was sold in St. Louis. All told, Pokorny and petitioner purchased about $700,000 worth of cocaine during their partnership.
With profits from partnership, Pokorny invested in a planeload of marijuana which was to be flown into the United States on a DC-3 he had leased for that purpose. Petitioner was to receive some of the marijuana. When problems developed getting the marijuana from Mexico, Pokorny flew to Guatemala to arrange for a load from there. The pilot hired to bring the plane into the country turned out to be a government agent, and the plane was seized in Mexico with 591 kilograms of cocaine. Pokorny claimed that he did not know that cocaine was on the plane, because he had negotiated to bring in marijuana and not cocaine.
Pokorny was charged in Texas with conspiracy to import 591 kilograms of cocaine, subjecting him to a penalty of 360 months to life. He had previously been convicted of a drug felony. He entered a plea of guilty to the cocaine charge, even though he was expecting only marijuana to be on the airplane, because that was the only plea offer the government extended to him.
Pokorny testified against petitioner pursuant to a plea bargain with the government. He claimed that if he did not give truthful testimony at trial, the deal with the government would be nullified.
B.The proposed cross-examination.
Following Pokorny's direct examination, the defense requested copies of videotapes made by the Drug Enforcement Agency (DEA) of negotiations between Pokorny and the agents to import marijuana and cocaine. After extensive argument, the court ordered that the tapes be produced. The government provided the defense with three videotapes, which the defense attempted to use to impeach Pokorny's testimony that he did not intend to import cocaine and to show that he was racially biased. The defense argued that the videotapes showed Pokorny's explicit negotiations to import a planeload of cocaine and that his trip to Guatemala was for that purpose.
When the court suggested that discrete, limited, non-repetitive sections of the tapes might be played during cross-examination, the defense redacted the videotapes, about five hours in length, to approximately thirty minutes of conversation reflecting the negotiations for cocaine and Pokorny's statements showing racial bias. The government continued to object to any use of the videotapes, claiming that the proposed cross-examination was collateral.
The court in camera reviewed the segments of the tapes which the defense proposed to use on cross-examination. The court then ruled that the defense had been permitted to question Pokorny about the fact that he tried to import cocaine into the country, using a report from the court in Texas, and that further cross-examination would be cumulative. The court determined that playing the proposed excerpts would not be sufficient to put the conversations in context and that playing additional portions of the tapes would be a substantial waste of time. Id. Under Fed.R.Evid.403, the court held, the value of the proposed cross-examination was outweighed by these factors. Additionally, the court found that Pokorny's use of the word "nigger" on one of the tapes did not reflect his racial bias and precluded impeachment with that section of tape.
Pokorny linked petitioner to his scheme to import drugs from Mexico and Guatemala. He described the operation of his partnership with petitioner and the large volume of cocaine the partnership moved to St. Louis. His testimony accounted for a substantial portion of the money the government claimed was earned by the conspiracy by documents or tangible evidence and he testified pursuant to a cooperation agreement in order to lessen what was likely to be a very long prison term. The court rightly
characterized Pokorny as "a very crucial witness as far as petitioner is concerned", and "a very important witness for the government and against the defense. . . as to the major drug dealing involving petitioner, if the jury believes his testimony". The court erred in precluding the proposed cross-examination of this crucial prosecution witness.
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him". The right of confrontation "means more than being allowed to confront the witness physically." Davis v. Alaska, 415 U.S. 308, 315 (1974). "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Id. pp, 315-16. The Court has emphasized that "the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but [also]. . .allowed to impeach, i.e., discredit the witness." Delaware v. Fensterer, 474 U.S. 18, 22 (1985), citing Davis v. Alaska, 415 U.S. 316. Significant restrictions on the right of cross-examination "call into question the ultimate integrity of the fact-finding process' and require that the competing interest by closely examined. Chambers v. Mississippi, 410 U.s. 295, 299 (1973)(citation omitted).
Cross-examination which serves to contradict a statement of fact made by a witness to a jury is especially deserving of protection. In United States v. Stock, 948 F.2d 1299 (D.C. Cir. 1991), the court found a violation of the defendant's Sixth Amendment right because the trial judge refused to allow the defense to cross-examine a police officer about a discrepancy between his trial testimony and prior statements he had made about the case. The court reiterated that one component of the right to cross-examination is the right to impeach a witness by asking him about prior inconsistent statements. Id. at 1301. See also United States v. Foster, 986 F.2d 541, 544 (D.C. Cir. 1993) ("[t]he essence of successful cross-examination is in selecting questions that undermine the witness's version of reality"); United States v. Pryce, 938 F.2d 1343, 1345-46 (D.C. Cir. 1991)(finding error in the court's refusal to permit the defense to cross-examine the government's witness about his recent hallucinatory experiences, because hallucinations so close in time to the events at issue were obviously relevant to the witness' ability to recognize reality) cert. denied, 112 S.Ct. 1679 (1992); United States v. Garrett, 542 F.2d 23 (6th Cir. 1976)(cross-examination to elicit answers which might possibly establish untruthfulness with respect to the specific events of the crime charged deserves heightened deference).
The government contended that the proposed cross-examination about the cocaine deal was collateral. However, this court has made it clear that "there should be great latitude for cross-examination on issues raised in direct testimony; case upholding a court's exclusion of extrinsic evidence offered to impeach a witness, on the ground of the issue's being 'collateral,' do not govern the scope of cross-examination itself." United States v. Stoce, 948 F.2d at 1302 (citing United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970).
In addition to seeking to contradict Pokorny's direct testimony, the defense proposed to examine him on two possible bias interests, his self-interest in coloring his criminal conduct in Texas and his racial bias. On direct examination, the government bolstered Pokorny's credibility by bringing out that if he was not entirely truthful, his deal with the government was off. The defense proposed to show that he was not in fact truthful when he testified on direct examination about his dealings with the DEA agents, so that the jury could fully evaluate whether the government's threat was real, whether Pokorny's incentive to give truthful testimony was as powerful as he claimed, and whether he had anything to lose by minimizing his criminal involvement in Texas. Precluding the inquiry into Pokorny's self-interest and how it affected his trial testimony violated the rule that "a defendant must be given a reasonable opportunity to cross-examine a government witness as to any agreement with the prosecution." United States v. Tarantino, 846 F.2d at 1407 (citations omitted).
Further, the defense sought to probe Pokorny's racial bias. The defense contended that his use of racial epithets on the tape demonstrated that he harbored a racial bias which colored his testimony against petitioner. That the bias or self interest of a witness might cause him to color his testimony is always relevant for cross-examination purposes. The Supreme Court has repeatedly stressed the importance of cross-examination to ferret out such feelings. In Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986), the Court found a violation of the right of confrontation when the trial court refused to allow the defense to question a primary government witness about the government's dismissal of a pending public drunkenness charge in return for his testimony in the defendant's murder trial. Following Van Arsdall, in Olden v. Kentucky, 488 U.s. 229, 233 (1988), the Court found a violation of the Sixth Amendment's guarantee of the right to confrontation when the trial court refused to permit the defendant's counsel to cross-examine the complainant in a rape case about her living arrangements to show that at the time of the alleged assault, the witness was living with another man and claimed to have been raped to protect that relationship. Because the proposed cross-examination might have caused the jury to have a different impression of the credibility of the complainant, the cross-examination should have been permitted, the Court held.
The rule is that a defendant is entitled to bring out enough information on cross-examination to allow "a discriminate[ing] appraisal of the witness's motives and bias." United States v. Derr, 990 f.2d 1330, 1334 (D.C. Cir. 1993)(citing United States v. Robinson, 832 F.2d 366, 373 (7th Cir. 1987)), cert. denied, 486 U.s. 1010 (1988). See also United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989)(conviction reversed because the jury was not apprised that the government had recently dismissed a murder indictment against its chief witness). The Anderson court held that in order to revel a "prototypical form of bias", Delaware v. Van Arsdall, 475 U.S. at 680, the defendant should have been able to explore the dismissal. 881 F.2d at 1137. In this case, the jury was denied essential information with which it could have appraised Pokorny's bias and self-interest.
The court ruling to exclude the proposed examination rested in part on the concern that the examination would be too time-consuming. However, the defense had selected less than 30 minutes of conversation from approximately five hours of videotapes as showing Pokorny's clear intention to import cocaine. The section of the tape were the racial epithets were used was only about on to two minutes in length. The court agreed that the other selected portions did in fact relate to cocaine and to Pokorny's efforts to import cocaine, but concluded that the portions were taken out of context and that more of the tapes would need to be used to fully relate the conversations.
The concerns expressed by the court were not significant enough to warrant the denial of the defense request to cross-examine this crucial prosecution witness. In United States v. Hodge, 19 F.3d 51 (D.C. Cir. 1994), the court remanded for a further hearing because of the restriction of the cross-examination of police officers at a suppression hearing. In so holding, the court observed that "any limitations on the right of cross-examination 'beyond the typical evidentiary rules limiting its scope to the subject matter of direct examination and to matters affecting witness credibility, Fed. R.Evid. 611(b), must be justified by weighty considerations,'' (quoting United States v. Green, 670 F.2d 1148, 1154 (d.C. Cir. 1981). That the proposed examination might have taken some time is not such a "weighty consideration," especially in a trial where the government's evidence lasted two months and where the witness was crucial to the government's case.
Pokorny was "a very crucial witness against petitioner", as the district court recognized. He accounted for much of the cocaine which was supplied to the conspiracy and for a great deal of the profits earned during its life. The cross-examination which the court permitted on the issue of the cocaine deal relied upon a report from the court in Texas. The report was not prepared by or in connection with Pokorny;. It could not be used to impeach his testimony, but merely afforded a good-faith basis for counsel's questions. Once Pokorny denied the allegations in the report, only his own words on the tapes could impeach him. Pokorny was a cooperating witness, with a very substantial interest in assisting the government. His testimony was largely uncorroborated by either physical or tape evidence. Given the foregoing, the cross-examination error was not harmless.
V.This court should grant review in this case because
petitioner's life sentence under 21 U.S.C.§ 848(b) was
imposed in violation of the ex post facto clause of
the United States Constitution.
Following a lengthy jury trial, petitioner was convicted under 21 U.S.C. § 848(b)(1988), the "super kingpin" statute. At sentencing, for the first time, defense counsel objected to the court's failure to instruct the jury that petitioner could be convicted under that statute only if he functioned as a manager, supervisor, or organizer of the alleged enterprise after the effective date of the statute, arguing that the instructional error violated the ex post facto clause because the jury was allowed to convict petitioner under the super kingpin statute, which became effective on October 27, 1986, without being required to find that he was a manager, supervisor or organizer of more than five persons after the effective date of the statute.
In this case, the district court erred by instructing the jury in contravention of the ex post facto clause. Article I of the United States Constitution precluded Congress from enacting any ex post facto laws. See Art. I, section 9, cl.3. See also Miller v. Florida, 482 U.S. 423, 429-30 (1987). The Supreme Court has added that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law such as Art. I, section 9, of the Constitution forbids." Bouie v. City of Columbia, 378 U.s. 347, 353-54 (1964).
The types of laws precluded by the ex post facto clause were first defined by the Supreme Court in Calder v. Bull, 3 Dall, 386, 1 L.Ed. 648 (1798). There the Court stated that the clause encompasses:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or make it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment that the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)
The Calder v. Bulll definition of an ex post facto law can be boiled down to two critical elements: one, ""`the law must apply to events occurring before its enactment;'" and tow, "the law must disadvantage the affected offender.':
Miller v. Florida, 482 U.S. at 429-30 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). See also Collins v. Youngblood, 110 S.Ct. 2715, 2719 (1990); United States v. Lam Kwong-Wah, 924 F.2d 298, 304 (d.C. Cir. 1991), cert. denied, 113 S.Ct. 287 (1992); United States v. Green, 952 F.2d 414, 416 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 1775 (1992).
The district court's jury instruction allowed § 848(b) to be applied retroactively, that is, to events occurring before the statute's enactment. Congress enacted 21 U.S.C. §§ 848(a) and (b) as part of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, §1253, 100 Stat. 3207; the enactment became effective upon the President's approval on October 27, 1986.
Section 848(a) provides that anyone who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than ten years and which may be up to a life imprisonment. Section 848(b) provides that any person who is the principal administrator, organizer, or leader of a continuing criminal enterprise which deals in 1.5 kilograms of cocaine base or 150 kilograms of cocaine hydrochloride, or which receives at least 10 million dollars in gross receipts during any 12-month period, shall be imprisoned for life without the possibility of parole. As 848(b) has been construed, the government need not prove that a defendant was the principal administrator of the enterprise for an entire 12-month period, but merely that he held a leadership position at some point during that period. United States v. Torres, 901 F.2d 205, 228 (2d Cir.), cert. denied, 448 U.S. 906 (1991).
In the case of continuing offenses, the ex post facto clause is not violated by application of a statute to conduct that began prior to but continued after the effective date of the legislation. United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992), cert. denied, 113 S.Ct. 1350 (1993). However, in order to convict a defendant of a continuing offense under 848(b), a fact finder must conclude that the defendant led a continuing criminal activity at some point after the effective date of the statute. United States v. Torres, 901 F.2d at 229 (participation in a criminal enterprise continuing after effective date of statute does not dispose of § 848(b)(1) requirement that jury find that defendant acted as a principal administrator, organizer or leader of the organization after October 27, 1986). It is precisely this determination that the jury in the instant case was not required to make before convicting petitioner under § 848(b).
The district court's erroneous jury instruction allowed petitioner to be subjected to the enhanced mandatory life sentence imposed by § 848(b) if he acted as principal administrator of the enterprise at any time between 1985 and 1992, although §848(b) did not become effective until October 27, 1986. Such an instruction clearly violated the ex post facto clause because it permitted the application of §848(b) to petitioner without a jury finding that he engaged in the prohibited conduct at some point after that section's enactment.
Retrospective application of a law constitutes an ex post facto error whenever the defendant was disadvantaged as a result of such application. U.S. v. Torres, 901 F.2d at 227. "It is `axiomatic that for a law to be ex post facto it must be more onerous than the prior law.'" Miller v. Florida, 482 U.S. at 429-30 (quoting Dobbert v. Florida, 432 U.S. 282, 300 (1979)). The Supreme Court has held that a law applied retrospectively, thereby increasing the length of incarceration, constitutes a substantial disadvantage to a defendant. Miller v. Florida 482 U.S. at 431. The retrospective application of § 848(b) to petitioner and his subsequent conviction under the "super kingpin" statute mandated that he be sentenced to life in prison without parole. Had the district court given a proper jury instruction, the jury may have found him guilty of violating § 848(a) only, exposing him to imprisonment from 10 years to life. Thus, the retrospective application of § 848(b) resulted in an increase in the length of his incarceration. Consequently he was disadvantaged by the application of the statute, even though § 848(a) allowed for a life sentence. See Miller v. Florida, 482 U.S. at 431, where the Court held that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous that which he might have received under the old one.
Finally, even if a retrospective law operates to a defendants disadvantage, it is not ex post facto if the change in the law is procedural rather than substantive. United States v. Lam Kwong-Wah; 924 F.2d at 304; United States v. Green, 952 F.2d at 416. "Although the distinction between substance and procedure might sometimes prove elusive . . .", a legislative enactment that". . .increases the quantum of punishment. . . appears to have little about it that could be deemed procedural." Miller v. Florida, 107 S.Ct. at 2453.
For the foregoing reasons, the court's failure to properly instruct the jury violated the ex post facto clause. Further, the instruction constituted plain error. Violation of the ex post facto clause is an obvious deviation from a legal rule, or more precisely, a deviation from constitutional law. Therefore, the court's error satisfies the first limitation on appellate authority under Rule 52(b), that there be an error. See United States v. Olano, 113 S.Ct. 1770, 1777 (1992).
The second limitation on appellate authority under Rule 52(b) is that the error be "plain." Id. In determining whether the error is obvious, courts have acknowledged that errors of constitutional magnitude will be noticed more freely under the plain error rule than less serious errors. United States v. Torres, 901 F.2d at 228.
Furthermore, an error is said to be plain if failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 113 S.Ct. at 1777; United States v. Torres, 901 F.2d at 228. In this case, the court's failure to five a proper § 848(b) instruction constituted plain error. The integrity and the equity of the judicial system would surely be compromised if an oversight at trial resulted in a defendant's sentence being increased from a minimum of 10 years to a term of life without the possibility of parole.
The third and final limitation on appellate authority under rule 52(b) is that the plain error "affect[t] substantial rights." United States v. Olano, 113 s.Ct at 1777-78. In the instant case, petitioner is in exactly the same position as the defendants in Torres:
It is clear that 91) it was the government's burden to prove all the elements of section 848(b) beyond a reasonable doubt; (2) the instruction and verdict form allowed a resolution of this issue against the Torres brothers and Flores, whether or not they met the requirements of section 848(b)91) on or after October 27, 1986; (3) the ex post facto rule requires such conduct on
or after October 27, 1986, as a constitutional matter as a basis for conviction under 848(b); and (4) as a result of this resolution adversely to them, these defendants were subjected to the mandatory life sentence imposed by section 848(b), rather than the ten years to life sentence which would otherwise have been available under section 848(a).
Id., 901 F.2d at 229. Therefore, the court's error affected his substantial rights.
In summary, the court's failure to give a proper §848(b) jury instruction violated the ex post facto clause and constituted plain error. Given the grave results that the district court's plain error worked in this case, this court must correct the error. The conviction under 21 U.S.C. §848(b) should be vacated, and petitioner should be resentenced under 21 U.S.C. §848(a).
For the foregoing reasons, petitioner respectfully requests that certiorari be granted in this case.
FEDERAL PUBLIC DEFENDER
Assistant Federal Public Defender
Counsel of Record
625 Indiana Avenue, N.W., #550
Washington, D.C. 20001
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
PAUL B. xxxxxxx,
UNITED STATES OF AMERICA,
CERTIFICATE OF SERVICE
Reita P. Pendry, a member of the bar of this Court, certifies that pursuant to Rule 29 of this Court, he filed and served the within MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT on counsel for respondent by depositing said petition, and copies thereof, in the United States Mail at Washington, D.C., on September 5, 1995, first class, postage prepaid, within the time allowed for filing.
Service was made upon counsel for respondent at the following addressees: Honorable Drew S. Days, III, Solicitor General of the United States, U.S. Department of Justice, Room 5143, Washington, D.C. 20530 and John R. Fisher, Esquire, Chief, Appellate Division, United States Attorney's Office, 55 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001
Reita P. Pendry
Assistant Federal Public Defender