IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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CASE NO. 03-30481
_________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
XXX XXXX
Defendant-Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
________________________________
BRIEF OF DEFENDANT-APPELLANT
________________________________
F.CLINTON BRODEN
Broden& Mickelsen
2715Guillot
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)
Attorneyfor Appellant
XXXXXXX
CERTIFICATE OF INTERESTED PERSONS
Theundersigned counsel of record certifies that the following listed persons havean interest in the outcome of this case. These representations are made in order that the Judges of this Courtmay evaluate possible disqualifications or recusal.
TheAppellant, XXX XXXX, was tried andsentenced by XXX E. Walter, United States District Court Judge for the WesternDistrict of Louisiana. TheHonorable Roy S. Payne,United States Magistrate Judge for the Western District of Louisiana, alsoconducted proceedings in this case.
TheAppellant was represented below by Victoria M. Cranford. TheAppellant is represented on appeal by F. Clinton Broden, a partner in the law firm of Broden &Mickelsen.
TheAppellee, the United States of America, was represented below by LidellSmith, Assistant Untied StatesAttorney for the Western District of Louisiana and is represented on appeal by JosetteL. Cassiere, AssistantUntied States Attorney for the Western District of Louisiana.
F.Clinton Broden STATEMENT REGARDING ORAL ARGUMENT
Oralargument is both requested and necessary. Many of the issues raised herein require the Court to be completelyconversant with all of the facts adduced at the three day trial as well as thefacts adduced at the two hearings held on XXX XXXXÕ new trial motion. Oral argument will significantly aidthe Court in juxtaposing the facts adduced at the trial and the hearings withthe issues raised herein. TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS i
STATEMENT REGARDING ORAL ARGUMENT ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES vi
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 3
A. Proceedings Below 3
B. Statement of the Facts 4
1. Trial testimony 4
2. Closing argument 10
3 New trial motion 10
a. Freddie Young 12
b. James Thomas 15
c. CourtÕs Ruling 17
4. Sentencing 17
SUMMARY OF THE ARGUMENT 20
ARGUMENT 25
I. TheTestimony of Freddie Young and James Thomas was Material, but XXX XXXX wasDenied the Benefit of Such Testimony For Several Reasons Each of which Rise tothe Level of Reversible Error. 26
A. A new trial should have been granted in theÒinterest of justiceÓ to allow the jury to hear from material witnesses who,for whatever reason, did not testify at trial. 27
1. Government interfered with defense witnesses. 27
2. ÒInterest of Justice.Ó 32
B. XXX XXXX was denied compulsory process when theDistrict Court refused to compel the attendance of Young and Thomas both ofwhom had been properly subpoenaed and whose testimony was material. 33
C. Trial counsel was ineffective when she failed torequest a continuance following the non-appearance of Young and Thomas. 36
II. TheGovernmentÕs Closing Argument that a Conspiracy Conviction Could be BasedSolely Upon a Buyer-Seller Relationship Alone Was Plain Error. 38
III. TheTrial Court Erred when it Refused to Review the Presentence Reports of EarlBuchanan and Gregory Byrd Prior to Trial. 40
IV. The Hearsay Sentencing Information AllegedlyProvided by Earl Buchanan- a Witness Whose Credibility was Rejected by the Juryand Whose Trial Testimony Was Inconsistent with the Sentencing Information- DidNot Bear a Sufficient Indicia of Reliability Upon which to Base a LifeImprisonment Sentence. 42
V. 21U.S.C. ¤ 841(b)(1)(A) is Unconstitutional 46
VI. TheSentence in this Case Offends the Due Process Clause to the United StatesConstitution in that XXX XXXX was Held Responsible for Drug AmountsRepresenting a Thirty Fold Increase in the Amount of Cocaine Base Charged inthe Indictment. 47
CONCLUSION 49
CERTIFICATE OF SERVICE 50
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 51
TABLE OF AUTHORITIES
Page
Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000) 23, 46, 48
Code v. Montgomery, 799 F.2d 1481 (11th Cir. 1986) 38
Johnson v. Scott, 68 F.3d 106 (5th Cir.), cert. denied sub. nom., Johnson
v. Johnson,517 U.S. 1122 (1996) 36
McMillan v. Pennsylvania, 477 U.S. 79 (1986) 48
United States v. Beler, 20 F.3d 1428 (7th Cir. 1994) 45
United States v. Brechtel, 997 F.3d 1108 (5th Cir.), cert. denied, 510 U.S.
1013 (1993) 27
United States v. Brothers, 75 F.3d 845 (3rd Cir. 1996) 45-46
United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001), rev'd, 277 F.3d
1173 (2002) 46
United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994) 22, 41-42
United States v. Duarte, 950 F.2d 1255 (7th Cir. 1991) 45
United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1999) 39
United States v. Fort, 248 F.3d 475 (5th Cir.), cert denied, 122 S.Ct. 405
(2001) 47
United States v. Gloria, 494 F.2d 477 (5th Cir. Tex.), cert. denied 419 U.S.
995 (1974) 30
United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979) 29
United States v. Higdon, 832 F.2d 312 (5th Cir. Tex. 1987), cert. denied,
484 U.S. 1075 (1988) 37
United States v. Jackson 978 F.2d 903 (5th Cir. 1992), cert. denied, 508 U.S.
945(1993) 41
United States v. Keith, 230 F.3d 784 (5th Cir, 2000), cert denied, 531 U.S.
1182 (2001) 48
United States v. McEntire, 153 F.3d 424 (7th Cir. 1998) 44-45
United States v. McKinney, 53 F.3d 664, cert. denied, 516 U.S. 901 (1995) 39
United States v. Ouimette, 798 F.2d 47 (2d. Cir. 1986), cert. denied,488
U.S. 863(1988) 29
United States v. Pinkney, 543 F.2d 908 (D.C. Cir. 1976) .. 32
United States v. Ramirez, 174 F.3d 584 (5th Cir. 1999) .. 32
United States v. Salazr-Flores, 238 F.3d 672 (5th Cir. 2001) 48
United States v. Simpson, 992 F.2d 1224 (D.C. Cir.), cert. denied, 510
U.S. 906(1993) 35-36
United States v. Slaughter, 238 F.3d 580 (5th Cir.), cert denied, 532 S.Ct.
1045 (2001) 47
United States v Smith,331 US 469 (1947) 32
United States v. Thomas, 12 F.3d 1350 (5th Cir.), cert. denied, 114 S. Ct.
2119 (1994) 39
United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) 29-31
United States v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc), cert. denied,
507 U.S. 989 (1993) 48
Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986) 38
Webb v. Texas, 409 U.S. 95 (1972) 30
Statutes and Constitutional Provisions
18 U.S.C. ¤ 922 3
18 U.S.C. ¤ 3742 1
21 U.S.C. ¤ 841 2-3, 23, 40, 46
21 U.S.C. ¤ 846 3
28 U.S.C. ¤ 1291 1
Fed. R. Crim. P. 33 11, 32
U.S. Const. amend. V 2, 23, 47-48
U.S. Const. amend. VI 2, 21, 29, 34-36
U.S.S.G. ¤ 2D1.1 18
U.S.S.G. ¤ 3C1.1 19,47
U.S.S.G. ¤ 3B1.1 18, 47
U.S.S.G. ¤ 6A1.3 42
STATEMENT OF JURISDICTION
Thejurisdiction of this Court is invoked pursuant to 28 U.S.C. ¤ 1291 as an appealfrom a final judgment entered by the United States District Court for theWestern District of Louisiana. Furthermore, jurisdiction to review the sentence imposed in this case isinvoked pursuant to 18 U.S.C. ¤3742(a) as an appeal of a sentence imposed underthe Sentencing Reform Act of 1984.
STATEMENT OF THE ISSUES
I. Whetherthe inability of the defendant to call two witnesses at trial, witnesses thatthe District Court found to be material, justified a new trial and/or resultedin the denial of his Sixth Amendment right to compulsory process and/orresulted from ineffective assistance of counsel.
II. Whetherthe governmentÕs closing argument, in which it argued that a conspiracyconviction could be based solely upon the defendantÕs purchase of crack cocaineto feed his personal drug habit, was plain error.
III. Whetherthe District Court erred in refusing to review presentence reports related totwo key government witnesses.
IV. Whetherhearsay sentencing information allegedly provided by a cooperating witness- awitness whose credibility was rejected by a jury and whose trial testimony wasinconsistent with the sentencing information- bears a sufficient indicia ofreliability upon which to base a life imprisonment sentence.
V. Whether21 U.S.C. ¤ 841(b)(1)(A) is unconstitutional.
VI. Whetherit offends the Due Process Clause to the United States Constitution to hold adefendant responsible for thirty times more drugs for sentencing purposes thanthe amount alleged against him in the indictment.
STATEMENT OF THE CASE
A. Proceedings Below
XXX XXXX, along with James Calvin Bryant, was chargedin a four count superseding indictment filed on May 23, 2002. XXX XXXX was charged in Count One with conspiracy to distribute and possession with theintent to distribute five kilograms or more of cocaine and fifty grams or moreof cocaine base in violation of 21 U.S.C. ¤¤ 841(a)(1)and 846; he was chargedin Count Two with possession withthe intent to distribute a detectable amount of cocaine on November 15, 2002 inviolation of 21 U.S.C. ¤¤ 841(a)(1); and he was charged in Count Three with being a felon in possession of a firearm inviolation of 18 U.S.C. ¤ 922(g)(1). See Excerpts at 3.[1] XXX XXXX was not charged in Count Four and Count Three was dismissed prior to trial. See Rec. I:185-88.
Ajury trial was held from September 23, 2002-September 25, 2002. See Excerpts at 1. On September 26, 2002, the jury found XXX XXXX guilty of Count 1 and notguilty of Count 2 Id. at 4.
XXX XXXX filed a new trial motion onOctober 16, 2003. Id. at II:315a-322. Hearingswere held on that motion on December 19, 2002, December 20, 2002 and January23, 2003. The motion was denied bywritten order on March 10, 2003. See Excerpts at 6.
XXXXXXX was sentenced, on April 24, 2003, to life imprisonment, five yearssupervised release and a $100 special assessment. See Excerpts.at 5.
OnMay 1, 2003, Mr.Scroggins filed a timely notice of appeal. Id. at 2.
B. Statement of the Facts
1.Trial testimony
XXX XXX XXXX was a father figure to EarlBuchanan. See Rec. at V:206. BuchananÕs mother was addicted to crack cocaine and XXX XXXX took him inoff the street and raised him. Id. at VI:273.
WilliamGreen, a special agent with the Drug Enforcement Agency, was the governmentÕsfirst witness at trial. AgentGreen testified that Earl Buchanan was arrested on March 8, 2000 [sic.].[3] See Rec. at IV:138. On March 12, 2001, XXX XXXX came tothe DEA offices and offered to provide assistance to the DEA for considerationin BuchananÕs case. Id. Duringthat visit, Agent Green testified that XXX XXXX told him about a cocainesource, David Sosa, that he knew from the Houston or valley area of Texas. Id. at IV:139. XXX XXXXallegedly told Agent Green that he had dealt with Sosa in late 1999 and early2000 and had bought approximately one to two kilograms of cocaine every twoweeks for a two month period from Sosa and that, in September/October 2000, hehas purchased Òseveral keysÓ of cocaine from Sosa. Id. at IV:140.
XXXXXXX had several meetings with Agent Green and attempted to set up a five-tenkilogram cocaine purchase from Sosa in order to get consideration forBuchanan. Despite several allegedattempts, XXX XXXX was not able to purchase cocaine from Sosa. Id. at IV:140-46. AgentGreen had sent another informant, Freddie Young, to XXX XXXXÕ house with a taperecorder to assist in recording Sosa on tape talking about a cocaine deal. Id. at V:176-77. Atone point, Agent Green alleged that XXX XXXX told him that he had Òalready setup the 10 kilogram cocaine deal with Mr. SosaÓ thirty days prior to coming into meet with him (Agent Green) for the first time. Id. atIV:147. According to Agent Green,XXX XXXX told him that this was to be his last deal before Òretirement.Ó Id. at IV:148-49.
EarlBuchanan testified that he was selling drugs for XXX XXXX. He would sell powder cocaine and crackcocaine. He testified that hebecame aware that XXX XXXX was involved in drug trafficking toward the end of1998. Id. at V:208. From the end of 1998 to the end off 1999 or the first part of 2000, XXXXXXX alleged purchased drugs from Shirley Preston. He would purchase one or two kilograms of cocaine at a timefrom Preston and he did this once a month Òsometimes longer.Ó Id. at V:208-10. Buchanan testified that, from the early part of 2000 up until the timehe (Buchanan) was arrested in March of 2001, XXX XXXX purchased cocaine fromDavid Sosa. He allegedly purchaseda kilogram or two at a time and it was also purchased at a time interval once amonth or sometimes longer. Id. at V:212-13. In total, Buchanan alleged that XXX XXXX purchased five kilograms ofpowder and one kilogram of crack from Sosa. Id. at V:213.[5] Buchanan claimed that the cocaine he delivered to theinformant on November 15, 2000 had been given to him by XXX XXXX. Id. at V:216. Nevertheless,during this time period, Buchanan admitted that he was also purchasing drugsfrom David Ashley and that XXX XXXX had nothing to do with Ashley. Id. at V:214.
Buchananhoped to have his sentence reduced pursuant to Fed. R. Crim. P. 35 for histestimony against XXX XXXX. Id. at v:235-38; DefendantÕs Exhibit 4. The defense introduced a letterBuchanan wrote while in prison, complaining that XXX XXXX did not assisthim financially after hisarrest. Id. at V:251; DefendantÕs Exhibit 5. The letter written by Buchanan alsotalked about how drug defendants are able to get their sentences reduced fortestifying against other defendants. See, e.g, Id. at V:262 (ÒAinÕt nobody keeping it real. I mean ainÕt nobody doing 20 years whenthey can tell on the next man and do 5 years.Ó).
GregoryByrd also testified as a government witness at trial. He testified that, in 1998, XXX XXXX would buy drugs fromhim on credit. Id. at V:288. Nevertheless, toward the end of 1998 to early 1999, Byrd allegedly beganbuying drugs from XXX XXXX. Id. at V:289. Byrd testified that he and XXX XXXX Òdid businessÓ for about a year, butthey stopped doing business in 2000 because that was when XXX XXXX startedusing Buchanan to sell his drugs. Id. at V:290-91. Byrdtestified that his purchases were limited to powder cocaine. Id. at V:291. Byrd testifiedthat some of these transactions occurred at XXX XXXXÕs house, but hisdescription of the house and the lack of a pet dog in the house was entirelyinconsistent with the actual house and the pet dog in the house that would makehis presence known to all visitors. Compare Id. at V:297-98 with VI: 394-97 and VI:461-63 and VI:481-83. Byrd admitted that he was previouslyincarcerated in the same jail pod as Buchanan and Vincent Crawford. Id. at V:299.
VincentCrawford also testified. Heclaimed to have been in the drug business with XXX XXXX between 1998-2000. Id. at V:311. He claimedthat he purchased powder cocaine from XXX XXXX seven or eight times and theamounts ranged from two and one-quarter ounces to eight and one-half ounces. Id. at V:313-315. Cranford testified that, at times, XXX XXXX woulddirect him to Buchanan to purchase cocaine. Id. atV:317. Crawford received completeimmunity for his testimony. Id. at V:323-325. He also hoped to get consideration in state court for his testimonyagainst XXX XXXX. Id. at V:33034.
Thedefense called several witnesses. Russell Jones was a trustee in the jail pod in which Buchanan was heldand worked in the law library of the jail and ran a Bible study. Id. at VI:426-30. Buchananhad told him that Òall of his people would go down with him and he didnÕt mindfabricating some stuff to do what he had to do.Ó Id. at VI:431. Buchanan told Jones that he was willing to fabricate evidence because hewas mad at Òhis peopleÓ for not hiring him an attorney when he wasarrested. Id. at VI:433.
ScottHolloway had shared a cell with Vincent Crawford. Id. atVI:455. Crawford told him that RayWest was the only person to eversupply him with drugs. Id. at VI:457-58.
RichardXXXXXXX, XXX XXX XXXXÕ second cousin, testified that he had been incarcerated withGreg Byrd. Id. at VI:460, 463. RichardXXX XXXX had previously worked as a confidentialinformant with three different state and local government agencies. Id. at VI:466-68. Byrd toldRichardXXX XXXX that he also got his drugs from Ray West. Id. at VI:461.
BobbieKirkendoll, like Buchanan, was ÒadoptedÓ by XXX XXXX. Id. atVI:470-74. Buchanan got Kirkendollstarted in the drug business. Id. at VI:474-75. When XXX XXXX learned of this, he kicked both of them out of thehouse. Id. at 475, 480. Kirkendoll testified that Buchanan had told him that David Ashley washis drug supplier and never mentioned any other supplier. Id. at VI:476, 479. Kirkendoll testified that, while XXX XXXX was addicted to crack cocaine,he did not sell drugs. Id. at VI:479-80. He further testified that ÒitÕs illogical for a crack addict to bedealing drugs in large quantities, or any quantity at all, because they smokeup everything they have, because youÕre addicted.Ó Id. at VI:480.[10]
2.Closing argument
During the closing argument, the government made thefollowing argument, contrary to law, without objection:
And if Mr. XXX XXX XXXX is a drug addict, whe