Wednesday, August 01, 2012

Duplicating forensic tests, and elements of RICO offense

US v. Mouzone and US v. Fleming:  These two appellants were indicted and tried for RICO and drug offenses related to their mutual membership in Tree Top Piru, a subset of the Bloods gang that operated in Essex, Maryland. Both Mouzone and Fleming were convicted of the RICO charge, and Fleming was also convicted on two drug charges. Both appellants raised several district court errors; the Fourth Circuit affirmed the convictions and sentences. 

In one of these issues, Fleming challenged the district court’s ruling that permitted the government to present a drug analysis report on bags of cocaine seized from his pocket at the time of his arrest. Two different chemists performed drug analyses; the government learned that the first analyst would be unable to appear for trial, so a second analyst performed the same tests nearly two years later. The results after the second test, specifically weight determinations, were "discordant." The Confrontation Clause requires that the accused "be confronted with the analyst who made the certification, unless that analyst be unavailable at trial, and the accused had an opportunity, pre-trial, to cross-examine that particular [analyst]," the Fourth Circuit quoted from Bullcoming v. New Mexico. Introducing a surrogate analyst, who does not sign the certification or perform or observe the test reported in the certification cannot satisfy the Confrontation Clause.

The Fourth Circuit reasoned that even if the admission of the second analyst’s testimony violated the Confrontation Clause, it was confident that the admission did not sway the jury on the drug charges: the second analyst performed an independent analysis; the weight determinations were still well above threshold amounts for which Fleming was convicted; and the second analyst made no attempt to vouch for the first analyst’s findings.

Mouzone and Fleming both challenged the district court’s charge to the jury of the elements of the RICO offense under 18 U.S.C. sect. 1962(d). Both appellants requested that the district court instruct the jury that in order to "participate, directly or indirectly, in the conduct of such enterprise’s affairs, one must have some part in directing those affairs. Some part in directing the enterprise’s affairs is required." The district court denied this request.

The Fourth Circuit disagreed with appellants that a managerial role in the enterprise’s affairs is required for conviction under this statute. Rather, it held that "simply agreeing to advance a RICO undertaking is sufficient." The Fourth Circuit joined several other circuits (D.C., 9th, 3rd, 2nd, and 5th) in holding that sect. 1962(d) liability does not require that a defendant have a role in directing an enterprise.

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