Thursday, August 19, 2010

Non-Expert DEA Testimony About Phone Call Meaning Requires Reversal

US v. Johnson: Johnson was charged in a multi-defendant indictment with conspiracy to distribute cocaine. At trial the Government presented non-expert testimony from a DEA agent that included testimony interpreting phrases in phone conversations between Johnson and an informant. In addition, the Government presented testimony from another witness, then in prison, who claimed to have bought cocaine from Johnson years before the conspiracy at issue at trial. Johnson was convicted and sentenced to 220 months in prison.

On appeal, the Fourth Circuit reversed Johnson's conviction on two grounds. First, the court agreed with Johnson that the DEA agent's testimony violated FRE 701, in that it was lay opinion testimony (he was never certified as an expert, remember) not based on personal knowledge. The court noted that when the testimony was objected to, the Government bolstered its admissibility by asking the agent about his training and qualifications, not his relevant observations. Such "post-hoc assessments cannot be credited as a substitute for the personal knowledge and perception required under Rule 701." Second, the court agreed with Johnson that the testimony about drug transactions that occurred five years before the conspiracy allegedly began were irrelevant. As neither error was harmless, the court was required to vacate Johnson's conviction.

Lawyer Never Told to Appeal Not Ineffective For Failing to Do So

US v. Cooper: Cooper was charged with two drug counts and carrying a firearm in connection with a drug trafficking crime. Although he initially had an agreement with the Government to plead guilty to one drug count and the 924(c), Cooper eventually entered an Alford plea without an agreement to the charges. After an initial sentencing hearing at which the district court resolved some objections to the PSR but did not impose sentence, Cooper and the Government agreed to a Guideline range of 121 to 151 months on the drug charges (in addition to the 60-month 924(c) sentence, of course). At a second sentencing hearing, the district court accepted the stipulation and impose a total sentence of 181 months in prison. Cooper did not appeal.

Cooper later filed a motion seeking to vacate his sentence, arguing that his appointed lawyer was ineffective because he failed to consult with Cooper about the possibility of an appeal. Cooper testified that he wanted to file an appeal and asked his lawyer to come see him at the jail, but never actually expressed a desire to appeal to him. However, his lawyer never came to see him and his office would/could not accept Cooper's collect calls from the jail. Cooper's lawyer denied hearing a request to come visit him at the jail. The district court denied Cooper's motion, finding that he never asked his attorney to appeal and that no rational defendant would desire an appeal in such a situation.

On appeal, the Fourth Circuit affirmed the denial of Cooper's motion. Because Cooper did not tell counsel he wanted to appeal, the court had to determine "whether the circumstances would reasonably have led counsel to conclude that 'a rational defendant would want to appeal,' thus prompting counsel's duty to consult." No rational defendant would want an appeal in this case, the court concluded, as Cooper's actions - from entering a plea to agreeing to a sentencing range - indicated that he wanted to have the "proceedings concluded as quickly as possible." The court also noted that Cooper got the sentence he bargained for. While the end result here was not ineffective assistance of counsel, "best practices" would include consulting with the client to tie up any loose ends with regards to appeals once sentence is imposed.

Court Affirms Life and Death Sentences In 3-Defendant Kidnapping/Murder Cases

US v. Wilson & US v. Lighty: These two opinions, released the same day, involve three codefendants - Wilson, Lighty, and Flood - who were involved in a kidnapping that resulted in death. All were charged with kidnapping resulting in death, conspiracy, and three counts of using a firearm in furtherance of a crime of violence. Wilson's trial was severed from Lighty's and Flood's, thus the separate appeals. The two opinions cover over 115 pages, so there's obviously a lot of detail I'm leaving out (more so than usual).

The cases arose from the kidnap and murder of Hayes, who was on a street corner in DC with a friend when two men in a dark Lincoln approached and asked to buy drugs. Hayes and the two men went into an alley to complete the transaction. Hayes's friend looked in the alley a short time later and saw one of the men holding Hayes at gunpoint. The friend fled when the other man came at him with a gun. When the friend returned to the alley some time later, everyone was gone. Later that night, two men saw the car near a vacant lot in Maryland and watched as Hayes was dragged from it and shot twice while on his knees begging for his life. Wilson told his girlfriend later that night that he had driven the car to DC where he, Flood, and Lighty had "grabbed . . . the boy" and that Lighty shot him. The next day, he again told her that Lighty was the shooter. Wilson told a similar story to a friend, CW. After Lighty was arrested in possession of a .380 caliber handgun, Wilson told his girlfriend that was the gun used to shoot Hayes and that it had "a body or two on it" from a recent drive-by shooting, the "Afton Street Shooting."

Wilson was convicted of conspiracy to kidnap and sentenced to life in prison. On appeal, he raised several challenges to both his conviction and sentence, all of which the Fourth Circuit rejected.
  • First, Wilson argued that the district court erred by allowing the Government to present evidence about the Afton Street Shooting at trial. The court agreed that admission of the evidence was error, as it was neither intrinsic to the offenses with which Wilson was charged nor was it proper FRE 404(b) evidence, but that the admission was harmless, as the evidence against Wilson was "overwhelming."
  • Second, Wilson argued that the Government made improper comments during closing arguments, specifically by misstating the law of conspiracy. The court held that the statements were not erroneous, given the full context in which they were made which included the four other offenses with which Wilson was initially charged.
  • Third, Wilson argued that the district court at sentencing improperly relied on a written statement he made to investigators. The court held that the statement, given to civilian investigators while Wilson was in the military, was voluntarily given and could be considered at sentencing.
  • Finally, Wilson argued that the district court erred by denying his motion for a new trial based on newly discovered evidence and a Brady violation. The court held that there was no Brady violation and that neither a newly discovered witness nor a recantation by CW of some of his trial testimony required a new trial.
Lighty and Flood were found guilty on all counts. Lighty was sentenced to death and Flood to life in prison. The Fourth Circuit affirmed the convictions and sentences after rejecting numerous arguments raised on appeal.

As to Lighty:
  • First, the court rejected Lighty's argument that his trial should have been severed from Flood's as their defenses were not antagonistic (though they were occasionally at odds), did not restrict the evidence Lighty could present to the jury, and did not violate his Eighth Amendment right to individualized sentencing.
  • Second, the court rejected several arguments about the admission of evidence, including the Afton Street Shooting evidence addressed above (harmless error), the exclusion of testimony from Lighty's witnesses about another potential perpetrator (no error), and the admissibility of a Government witness's answer to the question of whether she had any "doubt" about statements Lighty made to her (no error).
  • Third, the court rejected Lighty's argument that the Government's closing arguments during the penalty phase referencing the victim's family's desire that Lighty be executed denied him a fair trial, holding that while improper the statements did not affect Lighty's substantial rights.
  • Fourth, the court rejected Lighty's arguments that the district court improperly excluded several bits of mitigating evidence during the penalty phase.
  • Fifth, the court rejected Lighty's argument that the district court erred by refusing to give the jury an instruction that it was not required to impose the death penalty, regardless of its findings on mitigating/aggravating factors.
  • Sixth, the court rejected Lighty's argument that the use of the Afton Street Shooting as a non-statutory aggravating factor required it to be charged in the indictment.
  • Seventh, the court concluded that Lighty's death sentence was not the result of "passion, prejudice, or any other arbitrary factor."
  • Eighth, the court rejected Lighty's argument that his consecutive sentences under 924(c) were improper or that the entire process was rife with cumulative error.
  • Finally, the court rejected Lighty's argument that he should receive a new trial on newly discovered evidence, as it did in Wilson's case.
As to Flood, the court rejected his arguments that his Confrontation Clause rights were violated by the district court's requirement that CW not specifically identify "three others" during his testimony and that the district court erred by not giving the jury a willful blindness instruction. The court also affirmed Flood's consecutive 924(c) sentences as it did for Lighty.