______________________________________________________
CASE NO. 06-14287-BB
DISTRICT COURT NO. 8:05-Cr-475-T-27TGW
________________________________________________________
THOMAS SPELLISSY and STRATEGIC DEFENSE INTERNATIONAL, INC.,
Defendants-Appellants,
vs.
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
_________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
_________________________________________________________
BRIEF OF THOMAS SPELLISSY and
STRATEGIC DEFENSE INTERNATIONAL, INC.
CRIMINAL CASE
_________________________________________________________
Patrick D. Doherty, Esquire
Jeffrey G. Brown, Esquire
Brown and Doherty, P.A.
450 Carillon Parkway, Suite 120
St. Petersburg, FL 33716
(727) 299-0099, Fax (727) 299-0044
Counsels for Defendants - Appellants,
Thomas
Spellissy and
Strategic
Defense International, Inc.
DATE: January 4, 2007
CERTIFICATE
OF INTERESTED PERSONS
And
CORPORATE
DISCLOSURE STATEMENT
Counsel for Defendants/Appellants
THOMAS SPELLISSY and STRATEGIC DEFENSE INTERNATIONAL, INC., pursuant to Local
Rule 28-2(b), certifies that the following persons and entities have or may
have an interest in the outcome of this case:
1. Jeffrey G. Brown, Counsel for
Defendant-Appellant Strategic Defense International, Inc.;
2. Patrick D. Doherty, Counsel for
Defendant-Appellant Thomas Spellissy;
3. Robert ONeill, Assistant United States Attorney;
4. Linda Julin McNamara, Appellate Counsel for the United States;
5. Paul I. Perez, Jr., United States Attorney;
6. Tamra Phipps, Chief, Appellate Division;
7. Thomas Spellissy, Defendant-Appellant;
8. Strategic Defense International, Inc., Defendant-Appellant;
9. James D. Whittemore, United States District Judge;
_/s/ Patrick D. Doherty_________
Patrick
D. Doherty, Esquire
Attorney
for Defendant/Appellant
Thomas
Spellissy
_/s/ Jeffrey G. Brown___________
Jeffrey
G. Brown, Esquire
Attorney
for Defendant/Appellant
Strategic
Defense International, Inc.
C-1
STATEMENT
REGARDING ORAL ARGUMENT
Appellants request oral argument. It is respectfully submitted that argument by counsel familiar with the issues, the facts, and
the record on appeal will provide this
Honorable Court with assistance in resolving this action.
CERTIFICATE OF
COMPLIANCE WITH TYPE-VOLUME LIMITATION
The
Appellants certify that this brief contains 13,824 words in Times New Roman 14
pt. font.
i
TABLE OF CONTENTS
Page
Certificate of Interested Persons and Corporate
Disclosure Statement
.. C-1
Statement Regarding Oral Argument
. i
Certificate of Compliance with
Volume Limitations
..
... i
Table of Contents
.. ii
Table of Authorities
.. iv
Statement of Jurisdiction
.. vii
Statement of the Issues
. 1
Statement of the Case
... 2
Statement of the Facts
.. 4
Standards of Review
. 11
Summary of the Arguments
.. 13
Arguments and Citations of Authority
..
17
ii
I. WHETHER THE DISTRICT COURT JUDGE ERRED IN DENYING THE APPELLANTS MOTION TO SUPPRESS WHEN
THE JUDGE DETERMINED THAT THE
PROBABLE CAUSE AFFIDAVIT UTILIZED TO
OBTAIN THE SEARCH WARRANT WAS NOT FATALLY FLAWED BY THE NUMEROUS AND MATERIAL OMISSIONS AND STATEMENTS MADE WITH A RECKLESS
DISREGARD FOR THE TRUTH IT
CONTAINED
. 17
II. WHETHER THE APPELLANTS RULE 29 MOTION FOR A DIRECTED VERDICT, MADE AT THE CLOSE OF THE GOVERNMENTS
CASE AND AGAIN RENEWED AFTER A VERDICT
WAS REACHED, SHOULD HAVE BEEN
GRANTED, OR THE APPELLANTS RULE 33 MOTION FOR
A NEW TRIAL SHOULD HAVE BEEN GRANTED, WHEN THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL UPON WHICH A REASONABLE JUROR COULD HAVE FOUND THE
APPELLANT GUILTY OF CONSPIRACY
35
III. WHETHER THE JUDGE ERRED IN NOT GRANTING THE APPELLANTS RULE 29 MOTION FOR A DIRECTED
JUDGMENT OF ACQUITTAL WHEN THE
INTRODUCTION INTO EVIDENCE OF BURKES
GUILTY PLEA VIOLATED HIS SIXTH AMENDMENT RIGHT TO
CONFRONT THE WITNESS AGAINST HIM IN ANY MEANINGFUL WAY
..
. 54
IV. WHETHER THE DEFENDANTS
SENTENCE WAS PROPERLY CALCULATED UNDER
THE SENTENCING GUIDELINES
.
... 59
Conclusion .................................................................................................................
62
Certificate of Service
.
.. 63
iii
TABLE OF
AUTHORITIES
CASES CITED PAGE
NO.
Crawford v. Washington, 541
U.S. 36, 59 (2004)
54, 56
Derecktor, Inc. v. U.S., 762
F. Supp. 1019, 1027 (D.C. RI, 1991)
.. 29, 30
Franks v. Delaware, 438
U.S. 154, 155-56 (1978)
17
Glasser v. U.S., 315
U.S. 60, 80 (1942)
...
.. 40
Iannelli v. U.S., 420
U.S. 770, 777 (1975)
. 38, 46, 47
U.S. v. Baker, 432
F.3d 1189, 1231-1232 n. 49 & n. 50 (11th Cir. 2005)
.
. 36
U.S. v. Brenson, 104
F.3d 1267 (11th Cir. 1997)
.
. 42, 47
U.S. v. Brown, 151
Fed. Appx. 787 (11th Cir. 2005)
.. 54
U.S. v. Campbell, 64
F.3d 967, 975-76 (5th Cir. 1995)
...... 45
U.S. v. Clavis, 977
F.2d 538 (11th Cir. 1992)
. 36
U.S. v. Cross, 928
F.2d 1030 (11th Cir. 1991)
...
. 17
U.S. v. Gonzalez, 71
F.3d 819 (11th Cir. 1996)
. 11, 36
U.S. v. Grigsby, 111
F.3d 806 (11th Cir. 1997)
.... 11, 36
U.S. v. Hanson, 262
F.3d 1217 (11th Cir. 2001)
. 42
U.S. v. High, 117
F.3d 464 (11th Cir. 1997)
.
.. 37
U.S. v. Jordi, 418
F.3d 1212 (11th Cir. 2005)
..
. 12, 59
U.S. v. King, 505
F.2d 602, 607 (5th Cir. 1974)
.
. 54
U.S. v Kirk, 781
F.2d 1498 (11th Cir. 1986)
..
. 18
U.S. v. Lincoln, 630
F.2d 1313, 1319 (8th Cir. 1980)
.
49
iv
U.S. v. Martin, 320
F.3d 1223, 1225 (11th Cir. 2003)
..
11, 59
U.S. v. Orrico, 599
F.2d 113, 117-18 (6th Cir. 1979)
..... 48, 49, 52
U.S. v. Palladino, 1994
U.S. App. LEXIS 17409 (6th Cir. 1994)
..
18
U.S. v. Parker, 839
F.2d 1473 (11th Cir. 1988)
.
. 38
U.S. v. Pedrick, 181
F.3d 1264 (11th Cir. 1999)
... 11, 36
U.S. v. Ramirez-Chilel, 289
F.3d 744, n.5 (11th Cir. 2002)
..
. 18
U.S. v. Sarro, 742
F.2d 1286 (11th Cir. 1984)
..
.. 43
U.S. v. Starke, 62
F.3d 1374 (11th Cir. 1995)
... 11, 36
U.S. v. Suba, 132
F.3d 662 (11th Cir. 1998)
..
. 42
U.S. v. To, 144 F.3d
737 (11th Cir. 1998)
.
11, 36
U.S. v. Tokars, 95
F.3d 1520 (11th Cir. 1996)
..
11, 18
U.S. v. Toler, 144
F.3d 1423 (11th Cir. 1998)
.
36
U.S. v. Uscinski, 369
F.3d 1243, 1246 (11th Cir. 2004)
... 11, 59
U.S. v. Villabona-Garnica, 63
F.3d 1051 (11th Cir. 1995)
...
.. 18
U.S. v. Ward, 197
F.3d 1076 (11th Cir. 1999)
..
. 11, 36
U.S. v Weber, 808
F.2d 1422 (11th Cir. 1987)
.... 17
FEDERAL RULES OF CRIMINAL
PROCEDURE
Rule 29 Motion for
Directed Judgment of Acquittal
9,
13, 14, 15, 35, 40, 42, 48, 54, 57
Rule 33 Motion for New
Trial
9, 13, 14, 35, 40, 48, 49, 57
v
STATUTES
Title 18, U.S.C. §§
201(b)(1)(A) and (B)
..
2
Title 18, U.S.C. § 207
.
.. 19, 20, 22, 28, 30, 31 33
Title 18, U.S.C. § 207(a)
... 7, 13, 19, 29, 34
Title 18, U.S.C. §
207(a)(2)
...
19, 20, 28, 34
Title 18, U.S.C. § 207(b)
..
29
Title 18, U.S.C. § 207(j)
..
34
Title 18, U.S.C. §
207(j)(5)
.. 20, 28, 31
Title 18, U.S.C. § 371
2, 37, 38, 42, 59
Title 18, U.S.C. §§ 1343,
1346 and 2
. 2, 59
Title 18, U.S.C. § 3553
10
Title 18, U.S.C.
Application § 3742(e)
.. 11, 59
UNITED STATES SENTENCING
GUIDELINES
U.S.S.G. § 2C1.1
59, 60
U.S.S.G. § 2C1.1(b)(3)
..
59, 60
U.S.S.G. § 2X1.1
.. 59
U.S.S.G. § 2X1.1(b)(2)
.
... 60
vi
STATEMENT OF
JURISDICTION
This is an appeal from a criminal conviction and
sentence. The United States District
Court, Middle District of Florida, Tampa Division, had original jurisdiction
pursuant to 18 U.S.C. § 3231. The final
judgment was entered on August 14, 2006. (Doc 85, 86). Notice of appeal
was timely filed on August 18, 2006. (Doc
93, 94). Jurisdiction now lies with
this Honorable Court under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
vii
STATEMENT OF THE ISSUES
I. WHETHER THE DISTRICT COURT JUDGE ERRED IN DENYING THE APPELLANTS MOTION TO SUPPRESS WHEN
THE JUDGE DETERMINED THAT THE
PROBABLE CAUSE AFFIDAVIT UTILIZED TO
OBTAIN THE SEARCH WARRANT WAS NOT FATALLY FLAWED BY THE NUMEROUS AND MATERIAL OMISSIONS AND STATEMENTS MADE WITH A RECKLESS
DISREGARD FOR THE TRUTH IT
CONTAINED
II. WHETHER THE APPELLANTS RULE 29 MOTION FOR A DIRECTED VERDICT, MADE AT THE CLOSE OF THE GOVERNMENTS
CASE AND AGAIN RENEWED AFTER A VERDICT
WAS REACHED, SHOULD HAVE BEEN
GRANTED, OR THE APPELLANTS RULE 33 MOTION FOR
A NEW TRIAL SHOULD HAVE BEEN GRANTED, WHEN THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL UPON WHICH A REASONABLE JUROR COULD HAVE FOUND THE
APPELLANT GUILTY OF CONSPIRACY
III. WHETHER THE JUDGE ERRED IN NOT GRANTING THE APPELLANTS RULE 29 MOTION FOR A DIRECTED
JUDGMENT OF ACQUITTAL WHEN THE
INTRODUCTION INTO EVIDENCE OF BURKES
GUILTY PLEA VIOLATED HIS SIXTH AMENDMENT RIGHT TO
CONFRONT THE WITNESS AGAINST HIM IN ANY MEANINGFUL WAY
IV. WHETHER THE DEFENDANTS
SENTENCE WAS PROPERLY CALCULATED UNDER
THE SENTENCING GUIDELINES
STATEMENT OF THE CASE
COURSE OF PROCEEDINGS AND
DISPOSITION IN THE COURT BELOW
A five (5) count Indictment was
returned in the Middle District of Florida on November 8, 2005 naming Thomas F.
Spellissy and his company, Strategic Defense International, Inc. as
Defendants. (Doc 1).
Count I of the Indictment charged
the Defendants with conspiracy to defraud the United States and to commit offenses
against the United States in violation of Title 18, U.S.C. §371.
Count II and Count III both charged
the Defendants with bribery of public official in violation of Title 18, U.S.C.
§§ 201(b)(1)(A) and (B).
Count IV and Count V both charged
the Defendants with wire fraud in violation of Title 18, U.S.C. §§ 1343, 1346
and 2.
The case proceeded to trial before
United States District Judge James D. Whittemore and on May 12, 2006 the
Defendants were found guilty by a jury on all five (5) counts. (Doc 62, 63).
On July 6, 2006, Judge Whittemore
denied the Defendants Joint Renewed Motion for Judgment of Acquittal as to
Counts One (1), Four (4) and Five (5); granted the Joint Renewed Motion of Acquittal
as to Counts Two (2) and Three (3); denied the Motion for a New Trial as to
Count One (1); and the court granted the Motion for a New Trial as to Counts
Four (4) and Five (5). (Doc 72).
The Defendants appeared before Judge
Whittemore on August 14, 2006 for sentencing on the conspiracy count
conviction. (Doc 85, 86). A timely Notice of Appeal was filed on August
18, 2006. (Doc 93, 94).
STATEMENT OF THE FACTS
a. PEO-SP
From April 2001 to July 30, 2004, the Appellant was the Program Executive
Officer, Special Operations (PEO-SP) for the United States Special Operations
Command (SOCOM), located at MacDill Air Force Base in Tampa, Florida. (Doc 44).
On July 30, 2004 the Appellant gave up his procurement authority, and
then went on regular leave until October 21, 2004, at which point he signed out
of SOCOM and the U.S. Army. (Doc 44). Between October 21 and December 31, 2004 the
Appellant was on terminal leave. (Doc
44). During this period of terminal
leave, the Appellant worked for his company, Strategic Defense International,
Inc. (SDI), which he had previously obtained permission from his superior
officer and the SOCOM JAG office to do. (Doc 44).
In his position as PEO-SP, the Appellant
was responsible for providing acquisition and logistics at the national level
for all classified special operations forces and special mission units as well
as providing acquisition for ground warfare to all special operations forces. (Doc 38, Gov Exh. 1). Prior to holding this position as PEO-SP,
the Appellant was the Chief of Development Test/Foreign Comparative Testing for
SOCOM. In that position, he coordinated testing and technical evaluation of
foreign joint special operations equipment. (Doc 38, Gov Exh. 1).
b. Private
Practice
After he left the Army, the Appellant began
working as a contractor on behalf of companies who wished to do business with
United States Government agencies. (Doc
38, Gov Exh. 1). In order to ensure
that he did not run afoul of any laws relating to such a business venture, the
Appellant conducted scrupulous research into the matter obtaining a number of ethics
opinion letters from SOCOM JAG counsel that he utilized to alert him to potential
conflicts of interest that he would need to avoid. (Doc 38, Gov Exh. 1).
During his terminal leave, SOCOM asked him
to attend meetings in Europe, in November of 2004, as a paid contractor acting
on behalf of the SOCOM Ammunition Program Office. (Doc 38, Gov Exh. 1). The
Appellant attended these meetings and billed the Government for the work that
he did on its behalf. (Doc 38, Gov Exh.
1).
c. The
Search Warrant
On April 13, 2005 Federal Agents
executed a search warrant at the Appellants home address based upon an
investigation headed by Special Agent Robert Calvert of the United States
Department of Defense, which allegedly revealed probable cause existed to
believe that the Appellant violated certain conflict of interest laws. (Doc 121, Pgs 44-119). The search yielded a number of emails, a
number of which were sent between the Appellant and William E. Burke. (Doc 109, Pgs 276-318).
While the search of the Appellants home
office did not result in a prosecution for violation of conflict of interest
laws, the Government believed it revealed evidence of a conspiracy to bribe a
public official. (Doc 44). This conspiracy, it was alleged, was at its
heart an agreement between the Appellant and Burke to influence the weapons
procurement process by exchanging bribes for preferential treatment in the
weapons procurement process. (Doc 1).
Burke, an employee of the Sentel
Corporation, was a civilian contractor who worked on behalf of the U.S. Government
at SOCOM. (Doc 59, Exh.
41). His specific role as the
Task Leader in the Foreign Comparative Testing (FCT) Office was to assist SOCOM
Program Managers in determining which proposals were given to SOCOMs
Acquisition Executive, the Office of the Secretary of Defense, and the FCT
Office for testing consideration. (Doc 59, Exh.
41). He was also responsible
for making recommendations regarding
the appropriate priority level each project should be given. (Doc 59, Exh. 41).
d. Motion
to Suppress re The Search Warrant
The Appellant began his defense by
challenging the search warrant that yielded the evidence against him as
illegal. (Doc 21). This was based on the argument that Agent
Calvert made serious and material misrepresentations and omissions in his
Probable Cause Affidavit which demonstrated, at the very least a reckless
disregard for the truth, and at the most outright dishonesty, in his efforts to
obtain a search warrant. (Doc 121, Pgs
145-146).
At the hearing for the Motion to Suppress,
Judge Whittemore agreed that Calvert made statements and omissions in his
affidavit that demonstrated, at the least, a reckless disregard for the
truth, and he redacted those portions of the Probable Cause Affidavit that he
felt were the most egregious. (Doc 44).
However, even after redaction, Judge
Whittemore found that enough probable cause still existed on the face of the affidavit
to justify issuance of the search warrant. (Doc 44). This probable
cause was found to be based upon a violation of 18 U.S.C. § 207(a). (Doc 44).
e. The Trial
The case proceeded to trial, primarily
based upon (1) Burkes cooperation and (2) the emails seized from the
Appellants home office. But, the trial
did not progress smoothly for the Government.
While on the stand, after being called by the Government to testify
consistently with his plea agreement, Burke surprised the Government by
testifying that there never was a conspiracy between himself and the Appellant
and that he never accepted any sort of bribe nor did he dole out any
preferential treatment. (Doc 110, Pgs
459-616, Doc 111, Pgs 621-645).
Instead, he testified that he did honest work for the Appellant for
which he obtained honest pay, and that the emails espoused by the Government to
be instruments of a conspiracy were nothing more than communications in which
he, Burke, was attempting to gain future employment with the Appellants
company, SDI. (Doc 110, Pgs 459-616,
Doc 111, Pgs 621-645).
Suddenly faced with a situation in which
its primary, indeed essential, witness was disavowing his plea agreement, the Government
was forced to impeach its own witness with the statements that he had adopted as
part of that plea agreement during his plea hearing. (Doc 110, Pgs 570-616). Over
rigorous and highly confrontational direct examination by the Government, Burke
maintained his position that neither he nor the Appellant had ever done
anything illegal. (Doc 110, Pgs 370-467).
During closing argument, the Government
urged the jury to disregard Burkes testimony altogether and to, instead,
consider the other evidence against the Appellant. (Doc 111, Pgs 781-804).
This other evidence essentially boiled down to the emails. But, at trial, Burke testified that the
emails were nothing more than innocuous attempts to gain employment with the
Appellants company. (Doc 110, Pgs 459-616, Doc 111, Pgs 621-645). Therefore, the Government was left with a
situation in which it was forced to ask the jury to disregard the context of the
emails altogether by disregarding Burke, and instead only focus on what the
emails said. (Doc 111, Pgs 781-804).
At the close of the Governments case,
the Appellant moved for a Directed Judgment of Acquittal under Rule 29 based on
the argument that the Government had failed to prove a prima facie case of
conspiracy, bribery or wire fraud because their primary witness had gone south
and they were, thus, left with only that witness prior plea agreement and the
emails. (Doc 111, Pgs 731-740). The District Court Judge denied the Motion. (Doc 111, Pg 740). On May 12, 2006 the jury returned a verdict of guilty on all
counts against the Appellant and his company, SDI. (Doc 62, 63).
f. Post
Trial
After the verdict, the Appellant renewed his Rule 29 Motion for a
Directed Judgment of Acquittal and, in the alternative, made a Rule 33 Motion
for a New Trial. (Doc 65).
The District Court Judge overturned the
substantive counts against the Appellant, granting a judgment of acquittal
notwithstanding the verdict on the bribery counts and granting the Appellant a
new trial on the wire fraud counts. He
left the conspiracy conviction intact. (Doc
72).
g. Sentencing
On August 14, 2006 the Appellant once
again appeared before Judge Whittemore to be sentenced on the conspiracy count.
(Doc 114). At the sentencing hearing, the Government argued that Burke
should be considered a public official in a high level decision-making or
sensitive position, thereby requiring an increase of four (4) levels to the
Appellants base offense level of twelve (12). (Doc 114, Pg 39). The
Appellant strenuously argued against this increase by arguing that, while Burke
may have been a public official, he was not in a position of high level
decision-making or a sensitive position. (Doc 114, Pgs 39-43). The District
Court Judge denied the Appellants argument and granted the increase. (Doc 114, Pg 45). He then considered the sentencing factors under 18 U.S.C. § 3553 before
sentencing the Appellant to a term beneath the guideline recommendation. (Doc 114, Pgs 77-86).
The Appellant was sentenced to fifteen
(15) months in prison. (Doc 85, 86). This Appeal follows.
STANDARDS OF REVIEW
In reviewing the District Courts
ruling on a motion to suppress, this court is to review findings of fact for
clear error and the District Courts application of the law to those facts de novo. U.S. v. Tokars, 95 F.
3d 1520 (11th Cir. 1996).
Whether the
evidence is sufficient to sustain a defendants conviction is a question of law
which the appellate court reviews de novo. U.S. v. To, 144 F.3d 737 (11th Cir. 1998); U.S. v. Grigsby, 111 F.3d 806 (11th Cir. 1997);
U.S. v. Gonzalez, 71 F.3d 819
(11th Cir. 1996); U.S. v. Starke, 62 F.3d 1374 (11th Cir. 1995).
The District
Courts decision on sufficiency of the evidence in determining a motion for
judgment of acquittal is entitled to no deference by the Appellate Court, which
reviews the denial of a motion for acquittal de novo. U.S. v. Ward, 197 F. 3d 1076 (11th Cir.
1999).
The
decision to grant or deny a new trial motion is within the sound discretion of
the trial court and will not be overturned on appeal unless the ruling is so
clearly erroneous as to constitute an abuse of discretion. U.S.
v. Pedrick, 181 F. 3d 1264 (11th Cir. 1999).
The District Courts
application of the guidelines to the facts is reviewed de novo. 18 U.S.C. Application § 3742(e); U.S. v. Martin, 320 F. 3d 1223, 1225 (11th
Cir. 2003), U.S. v. Uscinski, 369
F.3d 1243, 1246 (11th Cir. 2004).
While
the District Courts interpretation of the guidelines is subject to de novo review, its factual findings
must be accepted unless clearly erroneous.
U.S. v. Jordi, 418 F.3d 1212
(11th Cir. 2005).
SUMMARY OF THE
ARGUMENTS
I. The Appellants
Motion to Suppress the evidence seized from his home should have been granted
because the warrant utilized in conducting the search was obtained based upon a
Probable Cause Affidavit that was fatally flawed by serious and material
misrepresentations and omissions that were made with either intentional
dishonesty or a reckless disregard for the truth. While the District Court Judge found that the affidavit contained
numerous material misrepresentations and omissions, thus requiring redaction
and insertion of pertinent information, he erred in determining that the
affidavit still established probable cause for a violation of 18 U.S.C. § 207(a) because he did not fully consider the extent to which
the Federal Agent seeking the warrant misrepresented the facts, known to him at
the time, to the warrant issuing Magistrate Judge.
II. Insufficient
evidence was presented at trial for which a reasonable juror could find the
Appellant guilty of conspiracy and, further, for which could withstand the
Appellants Rule 29 Motion for Acquittal as well as the Appellants renewed
Rule 29 Motion for Acquittal and, in the alternative, Rule 33 Motion for a New
Trial.
The
District Court Judge erred in not granting either the Appellants Rule 29 Motions,
or the Appellants Rule 33 Motion, because the Government failed to prove a
prima facie case that the Appellant was part of a criminal conspiracy by
failing to prove both the elements of agreement and knowing participation.
Additionally,
the judges decision to throw out the jurys guilty verdict on the bribery
counts and order a new trial on the wire fraud counts necessitated either an
acquittal or a new trial on the conspiracy count because, in this case, proof
of the conspiracy also depended on proof of the substantive counts. Therefore, without proof that the substantive
offenses were committed, there was insufficient evidence to prove that a
conspiracy existed.
Finally,
because the Governments case depended upon the testimony of the alleged
co-conspirator to establish that a conspiracy had been formed, there was insufficient
evidence presented at trial to support a conviction for conspiracy when that
witness testified at trial that a conspiracy had never been formed, forcing the
Government to prove the elements of the conspiracy beyond a reasonable doubt by
improperly utilizing his plea agreement, as a prior inconsistent statement, as
evidence with which the jury would likely use substantively in interpreting the
meaning of the emails.
III. The
introduction into evidence of the plea agreement violated the Appellants Sixth
Amendment right to confront the witnesses against him because he was not able
to truly and meaningfully cross examine the witness against him because the
witness who took the stand at trial presented favorable testimony to the
Appellant and the witness who, in reality, testified against him was a
different version of that same witness who testified at a prior plea hearing.
The
District Court Judge erred in not granting the Appellants Rule 29 Motion for
Judgment of Acquittal because it is clear from the verdict that the jury relied
upon the plea agreement in weighing, assessing and interpreting the email
evidence against the Appellant which the Government alleged proved, on its own,
that a conspiracy existed. Therefore,
contrary to the judges instruction to the jury that they not view the plea
agreement as substantive evidence against the Appellant, there is quite
literally no other way that the jury could have viewed the plea agreement
because the emails, standing alone and apart from any other corroborating evidence,
are vastly insufficient to establish the necessary elements of conspiracy
beyond a reasonable doubt.
Thus,
the Appellant was not truly able to confront the witness against him, as found
within the pages of the plea agreement, and this was a violation of his Sixth
Amendment right to do so.
IV. The District
Court Judge erred in calculating the Appellants sentence because he
incorrectly assessed the Appellant a four (4) level increase in his base
offense level based upon the Governments argument that the Co-Defendant whom
the Appellant was convicted of conspiring with was a public official in a high
level decision-making or sensitive position when, in fact, he was not.
ARGUMENTS AND CITATIONS OF
AUTHORITY
I. WHETHER
THE DISTRICT COURT JUDGE ERRED IN DENYING THE APPELLANTS MOTION TO SUPPRESS
WHEN THE JUDGE DETERMINED THAT THE PROBABLE CAUSE AFFIDAVIT UTILIZED TO OBTAIN
THE SEARCH WARRANT WAS NOT FATALLY FLAWED BY THE NUMEROUS AND MATERIAL OMISSIONS
AND STATEMENTS MADE WITH A RECKLESS DISREGARD FOR THE TRUTH IT CONTAINED
The Fourth Amendment guarantees the
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, and further provides that no
Warrants shall issue, but upon probable cause. U.S. Const. amend. IV. If a defendant can demonstrate, by a
preponderance of the evidence, that an affidavit used to obtain a search
warrant contains intentionally false statements, or statements made with a
reckless disregard for the truth, and that if, once these statements are
removed from the affidavit, no probable cause is established, then the District
Court must void the search warrant and exclude the fruits of the search. Franks
v. Delaware, 438 U.S. 154, 155-56 (1978).
Likewise, if the defendant is
successful in establishing that the search warrant affidavit contains
misrepresentations that are made with a reckless disregard for the truth, but
the District Court decides that probable cause still exists once the false
information is removed and any omitted favorable information is included, then
the search will withstand Fourth Amendment scrutiny. U.S. v. Cross, 928 F. 2d
1030 (11th Cir. 1991); U.S. v. Weber,
808 F. 2d 1422 (11th Cir. 1987); U.S. v.
Kirk, 781 F. 2d 1498 (11th Cir. 1986).
In reviewing the District Courts
ruling, this court is to review findings of fact for clear error and the District
Courts application of the law to those facts de novo. U.S. v. Tokars, 95 F.3d 1520 (11th Cir.
1996). As the Sixth Circuit has explained:
Where a defendant makes a sufficient showing to
obtain a Franks hearing, and is able
to show by a preponderance of the evidence at the hearing that the affiant lied
or acted in reckless disregard of the truth with respect to certain portions of
the affidavit, the trial judge is expected to excise those portions and proceed
to determine whether the balance of the affidavit is sufficient to support a
determination of probable cause. In
this setting, an appellate review of the trial courts determination of probable
cause or the lack of it need not be granted the deference a reviewing trial
court would give to a warrant issuing magistrate; we believe, rather, that
this determination should be reviewed de
novo. U.S. v. Palladino, 1994 U.S. App. LEXIS 17409 (6th Cir. 1994).
Thus, review of the District Courts
determination that probable cause remained on the face of the affidavit is to
be de novo and, furthermore, in
ruling on the correctness of the trial courts denial of a motion to suppress,
this court may consider any evidence presented at the trial of the case and is
not limited to the evidence introduced at the hearing on the motion. U.S.
v. Villabona-Garnica, 63 F. 3d 1051 (11th Cir. 1995); U.S. v. Ramirez-Chilel, 289 F. 3d 744, n.5 (11th Cir. 2002).
In the instant case, the Appellant was
granted a Franks hearing by the District
Court because he was able to demonstrate that the affidavit utilized by Special
Agent Robert Calvert was riddled with misrepresentations, omissions and statements
made with a reckless disregard for the truth.
In his Order on the Appellants Motion to Suppress, the District Court
Judge accurately stated that:
When a search warrant affidavit contains, as Calverts affidavit does, intentional
misrepresentations and statements made in reckless disregard for the truth, and
omits material facts critical to probable cause, the question is whether, after
deleting the misstatements and including the material omissions, the affidavit
is sufficient to establish probable cause.
(emphasis added) (Doc 44).
However, the District Court Judge, for
the reasons outlined herein, committed error by finding that Agent Calverts
affidavit, even after redaction, still established probable cause for a search
warrant. In his holding, the District
Court Judge stated:
Excluding the
false and reckless statements discussed, probable cause for a § 207(a)(2) violation
remains on the face of the affidavit. Section 207 prohibits a former officer, for two years after
termination of service, regardless of the officer's title or authority, from representing
a contractor before the Department of Defense with respect to a particular
matter which the officer knows or should know was pending before the officer
during the last year of his service, which involved a specific party. Based on the facts in Calvert's affidavit,
there was probable cause to believe that when Spellissy represented NAMMO
during the meeting concerning the 70mm rocket warhead with the Government in
Norway, he had reason to know that the 70mm rocket warhead listed in Dr.
Uhler's procurement letter was a NAMMO product and that it had been a matter
under his official responsibility as PEO-SP during May 2004, contrary to the
prohibitions in 18 U.S.C. § 207(a). (Doc 44).
The District Court Judge was incorrect
to reach this conclusion for two critical reasons. First, the evidence presented at the Franks hearing demonstrated that the Appellant had no reason to
believe that the 70mm warhead was a matter under his official responsibility,
as contemplated by § 207(a)(2). And
second, the evidence at the Franks hearing
clearly demonstrated that Agent Calvert intentionally misled the Magistrate
Judge through his mischaracterization of the scope of § 207, and further either
intentionally or recklessly omitted from the affidavit any indication of the technical
exception to § 207, found under § 207(j)(5), which would have, at
least, created the necessity for further investigation before probable cause
could be developed for a § 207(a)(2) violation.
Essentially, Agent Calverts Probable
Cause Affidavit was constructed in such a way that it misled the judge into
believing probable cause existed for a crime that did not occur. Agent Calvert acted unreasonably,
unethically and unlawfully in disregarding and, ultimately, suppressing the
data that was available to him which clearly indicated the Appellant did not
violate § 207. The District Court Judge
recognized the brunt of Calverts recklessness and dishonesty, and acted
accordingly in omitting certain key areas of his affidavit, but he erred in his
factual findings in support of the affidavit and he, likewise, erred in
applying the law to those facts by finding probable cause for a § 207(a)(2)
violation.
A. The
70mm warhead was a not a particular matter under § 207(a)(2).
In May of 2004, a memorandum drafted by staff regarding the nomination
of candidate proposals seeking funding for testing of various products crossed
the Appellants desk for review. This memorandum,
intended ultimately for the approval and signature of Dr. Uhler, the SOCOM
Acquisition Executive, listed specific items that SOCOM was seeking test
funding for from Congress. Amongst the
numerous products listed within the memorandum was a request for funding to
test a 70mm Bunker Buster warhead. Nowhere in the memorandum was a specific
manufacturer identified.
The
purpose of the memorandum was merely to alert Congress to SOCOMs desire for test
funding in order to begin the acquisition process by eventually placing the
items listed in the memorandum out for bid to potential manufacturers. As part of this process, the Appellant, in
addition to others, was to review the memorandum before forwarding it on to Dr.
Uhlers office for his approval and signature.
Initially,
Special Agent Calvert represented to the Magistrate Judge that the Appellant
himself had prepared the memorandum.
The District Court Judge found this to be false, redacted the assertion
from the affidavit, and correctly found that the Appellant had merely reviewed
the memorandum before staff forwarded it to Dr. Uhler for his approval and
signature.
In
November of 2004, during his terminal leave, the Appellant traveled overseas
with the U.S. Government to Sweden, Norway and Germany as a paid Government
contractor. While in Norway, he
allegedly represented the interests of NAMMO, a potential manufacturer of 70mm
warheads, to the U.S. Government. If
this was true, it would have, nevertheless, been completely proper unless the
matters discussed in the meeting were particular matters which were pending
before the Appellant one year before his retirement.
Critical
to the District Court Judges denial of the Appellants Motion to Suppress was
the finding that the Appellant had reason to know
that the 70mm rocket warhead listed in Dr. Uhler's procurement letter was a
NAMMO product and that it had been a matter under his official responsibility
as PEO-SP. (Doc 44). As accurately stated by the judge in his
order:
Section 207 prohibits a
former officer, for two years after termination of service, regardless of the
officer's title or authority, from representing a contractor before the
Department of Defense with respect to a particular matter which the officer
knows or should know was pending before the officer during the last year of his
service, which involved a specific party.
It
is first important to point out that the District Court Judge made a critical
error in identifying the memorandum as a procurement letter because there is
an important and substantive distinction between a memorandum that merely seeks
funding from Congress to test generic and non-specified products from any
number of potential manufacturers and a procurement letter that typically comes
after funding has been obtained. The subject
communication in this instance was unquestionably a generalized memorandum,
completely bereft of any of the distinguishing characteristics of an actual
procurement letter.
The
District Court Judge based his finding that the Appellant had reason to know
that the 70mm warhead was a NAMMO product on the uncorroborated testimony of Captain
Rowland Huss who testified that the 70mm rocket warhead was, in his opinion,
considered to be synonymous with NAMMO.
(Doc 44). This assertion was not
only unsupported by any shred of evidence, it was clearly and unequivocally
undermined by the lack of specificity in the very memorandum that the judge
found the Appellant reviewed before it was signed by Dr. Uhler. Yet, the District Court Judge inexplicably
ignored this fact and accepted Huss testimony that the warhead was
synonymous with NAMMO at face value.
Furthermore,
since the Appellant was prohibited from representing NAMMO before the U.S. Government
on any matters that were pending under his official responsibility during the
one year period before his retirement on December 31, 2004, it was critical to
the probable cause determination that the Appellant knew that he was representing a prohibited matter before the U.S. Government
on his business trip to Norway. And, it
was also critical to the analysis that the 70mm warhead manufactured
specifically by NAMMO was actually a
matter that was pending under his official responsibility while he was employed
by the Government.
The
only evidence presented at the Franks hearing
that came remotely close to establishing these elements, and which proved to be
fundamental to the judges ruling, was the unsupported opinion of Captain Huss
that NAMMO is synonymous with the 70mm warhead. But, this proposition is ultimately false because, while NAMMO
may have been, at the time a primary manufacturer, or even the premier manufacturer,
of a 70mm warhead, they did not make a 70mm Bunker Buster warhead. Additionally, there is no doubt that if this
funding was approved by Congress, many other manufacturers in that time frame
were capable of designing, modifying, building, and bidding on the Government
contracts for the production of a Bunker Buster 70mm warhead. In fact, it is also entirely true that NAMMO
may choose not to submit a bid for the contract.
Indeed,
at the time the memorandum was prepared, SOCOM was merely seeking finances from
Congress to obtain test funding for a 70mm
Bunker Buster warhead. No specific
manufacturer was identified, nor was identification even necessary at this
early stage of the acquisition process.
As far as anyone who prepared, reviewed, or even approved the memorandums
contents would have known at the time, SOCOM was merely seeking permission to
start the acquisition process by requesting funding. There did not yet even exist a request for proposals to
manufacturers at this time. Whether the
warhead would have come from NAMMO or from another manufacturer is something
that the record simply does not reflect.
Therefore,
Captain Husss testimony that, at the time the memorandum was prepared, NAMMO
was already the manufacturer slated to provide the 70mm Bunker Buster warhead
referenced in the memorandum would seem to indicate a strange and confused Government
bidding process where an item is requested for procurement and sent out to bid,
when all along the chosen manufacturer has already been identified before any
bidding has ever actually taken place.
In other words, why would the Government even send an item out for bid
if the Government already definitively knew who the sole manufacturer of that
item would be? The answer is clearly
that the Government would not do so.
The
acquisition process is lengthy, complex and designed to get the best equipment
possible into the hands of American soldiers.
The conventional ammunition procurement process is strictly regulated
under Federal Statute. Because of this,
it often takes years for a particular item to be identified as a need, have
funding sought from Congress, be sent out to market for bidding, tested and
ultimately contracted out for production.
During that process, manufacturers have an abundance of time with which
to see where Government funding is being allocated and for what types of
programs, and then govern themselves accordingly in either seeking to bid on
those programs, or pass on the opportunity.
In fact, Captain Huss himself recognized this reality when the following
testimony was elicited from him at the Franks
hearing:
Huss: Once you have funding, then it could take
anywhere from, you know, three to six months potentially to get actually on
contract to procure or provide, you know, this 70 millimeter warhead.
Q: Okay. Thank you. And, of course, at that time you dont know,
looking out, who is going to be producing that 70 millimeter warhead six,
eight, ten months down the road, but you know that NAMMO does now?
Huss: Thats correct. (Doc 121, Pgs 27-28)