______________________________________________________
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. งง
201(b)(1)(A) and (B)
..
2
Title 18, U.S.C. ง 207
.
.. 19, 20, 22, 28, 30, 31 33
Title 18, U.S.C. ง 207(a)
... 7, 13, 19, 29, 34
Title 18, U.S.C. ง
207(a)(2)
...
19, 20, 28, 34
Title 18, U.S.C. ง 207(b)
..
29
Title 18, U.S.C. ง 207(j)
..
34
Title 18, U.S.C. ง
207(j)(5)
.. 20, 28, 31
Title 18, U.S.C. ง 371
2, 37, 38, 42, 59
Title 18, U.S.C. งง 1343,
1346 and 2
. 2, 59
Title 18, U.S.C. ง 3553
10
Title 18, U.S.C.
Application ง 3742(e)
.. 11, 59
UNITED STATES SENTENCING
GUIDELINES
U.S.S.G. ง 2C1.1
59, 60
U.S.S.G. ง 2C1.1(b)(3)
..
59, 60
U.S.S.G. ง 2X1.1
.. 59
U.S.S.G. ง 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. ง 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. ง 3742 and 28 U.S.C. ง 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. ง371.
Count II and Count III both charged
the Defendants with bribery of public official in violation of Title 18, U.S.C.
งง 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. งง 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. ง 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. ง 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 ง 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. ง 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 ง 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. ง 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 ง 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 ง 207, and further either
intentionally or recklessly omitted from the affidavit any indication of the technical
exception to ง 207, found under ง 207(j)(5), which would have, at
least, created the necessity for further investigation before probable cause
could be developed for a ง 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 ง 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 ง 207(a)(2)
violation.
A. The
70mm warhead was a not a particular matter under ง 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)
It
is clear that Captain Husss opinion that NAMMO is synonymous with the 70mm Bunker
Buster warhead should not have been accorded the weight that was granted to it
by the District Court Judge when it is clearly contradicted by other testimony
he offered in the same hearing, and by the lack of specificity in the memorandum
itself. Thus, there is no logical basis
for the conclusion that the Appellant should have known that the memorandum
prepared by Dr. Uhlers staff was referring to a NAMMO 70mm Bunker Buster warhead. The memorandum, at that infant stage in the process, was nothing
more than a request for test funding from Congress. It did not identify any particular manufacturers because it
wasnt even clear yet whether (1) The Office of the Secretary of Defense would
approve the request and ask Congress for funding, (2) funding would actually be
authorized and appropriated from Congress to seek the test items, (3) potential
manufacturers would be able to satisfy the requirement for the request for
proposal and (4) whether NAMMO, or any other manufacturer for that matter,
would even wish to submit a bid for the request. It may have been a done deal in Captain Huss opinion that
NAMMO would be supplying a 70mm Bunker Buster warhead to the military, but
nowhere is it indicated, asserted, or even inferred that NAMMO would even
desire to supply the warhead.
Also
critical to the District Courts finding was that because this memorandum
crossed his desk at some point during the year before he retired, the Appellant
should have known, months later, that the contents of the memorandum
constituted a particular matter for which he could not represent NAMMO. Even disregarding the fact that the memorandum
never identified any manufacturer by name, holding this Appellant, or anyone
else for that matter, to such a standard is simply unreasonable. Out of hundreds of letters, memorandums,
emails, documents and other communications that came through the Appellants
office on a weekly basis, how could the Appellant reasonably have been expected
to recall the contents of one memorandum, that he did not even draft, which
indicated the need to test a 70mm warhead from an unidentified source at some
point in the future?
In
addition, the record clearly reflects
that the Appellant obtained numerous ethics opinions from SOCOM JAG counsel
that cleared him to do business with private companies, including NAMMO, as
long as he stayed away from such particular matters. These letters can all be found within the
binder utilized by Agent Calvert in obtaining the search warrant and which was
entered into evidence at the Franks
hearing. (Doc
38). None of the ethics opinions
that the Appellant obtained mentioned the 70mm warhead, which should have
indicated to Agent Calvert that neither the Appellant nor the Government
considered the 70mm warhead a particular matter for which the Appellant would
need to be aware.
Because
the District Court relied upon the factually incorrect and clearly
contradictory testimony of Captain Huss at the Franks hearing, it was improper for the District Court Judge to
find that there was probable cause to believe that the 70mm warhead
manufactured by NAMMO was a particular matter for which the Appellant should
have been aware when he attended the meeting in Europe at the Governments invitation.
B. Agent Calvert omitted material information
from his probable cause affidavit that
would have demonstrated that the Appellant was likely exempt from ง 207(a)(2) restrictions.
It became clear at the Franks
hearing that Agent Calvert was, at the very least, reckless in representing
to the Magistrate Judge the assertion that the Appellant could not represent
NAMMO for two years on any matter, when, in fact, ง 207 only restricts
particular matters for which the Appellant would need to avoid representing
NAMMO. (Doc 44). Quite simply, this was a very serious and
material omission on the part of Agent Calvert which completely
mischaracterized the law and, no doubt, introduced the substantial likelihood
that the Magistrate Judges decision to issue the search warrant was affected
by that misrepresentation.
But
that was not the extent of Agent Calverts recklessness and/or dishonesty in
procuring this search warrant. Agent
Calvert also failed to indicate to the Magistrate Judge that there existed
relevant exceptions to the restrictions contained within ง 207, under which the
Appellant likely would have qualified.
Under
ง 207(j)(5) there is an exception for scientific or technological
information. According to the section:
The restrictions contained in
subsections (a), (c), and (d) shall not
apply with respect to the making of communications solely for the purpose of
furnishing scientific or technological information, if such communications are
made under procedures acceptable to the department or agency concerned or
if the head of the department or agency concerned with the particular matter,
in consultation with the Director of the Officer of Government Ethics, makes a
certification, published in the Federal Register, that the former officer or
employee has outstanding qualifications in a scientific, technological, or
other technical discipline, and is acting with respect to a particular matter
which requires such qualifications, and that the national interest would be
served by the participation of the former officer or employee. (Emphasis added).
In
Derecktor, Inc. v. U.S., 762 F. Supp.
1019, 1027 (D.C. RI, 1991), the District Court quoted 5 C.F.R. ง
737.5(c)(2)(1989) in providing an example of a ง 207(b) violation that would be
cured by the technical information exception.
The same exception also applies to ง 207(a) violations. The District Court stated:
The example which follows
states that a former Government employee who would otherwise be prohibited from
doing so, may meet with Government technical experts to furnish technical
information.
It is also clear from 5
C.F.R. ง 737.5(c)(2)(example (2)(1989), that: A Government employee who has
worked for years on the design of a new satellite communications system, joins
C Company. Later, the Government issues
a request for proposals (rfp) to construct the new system, which is
circulated generally to the industry.
The employee proposes to act as C Companys representative in connection
with its anticipated proposals for the contract. He may do so. The
satellite contract became a particular matter when the rfp was being
formulated; it would ordinarily not become one involving a specific party or
parties until initial proposals or indications of interest therein by
contractors were first received.
Moreover, if the employees work for C Company were limited to the
formulation and communication of a proposal in response to the rfp, it would
not be prohibited to the extent it involved a communication for the purpose of
furnishing scientific or technological information to the Government . . . Derecktor,
762 F. Supp. at 1027 (quoting 5
C.F.R. ง 737.5(c)(2)(example 2)(1989).
Therefore,
according to the District Court in Derecktor,
even if a matter becomes a particular matter for ง 207 purposes, a former Government
employee can still represent another party to the U.S. Government if the
information relayed by the former Government employee is limited to furnishing
scientific or technological information.
This is exactly the scenario that occurred in this case, when the U.S. Government
invited the Appellant to attend the European meetings based on his technical
knowledge of both the procurement process and, more importantly, the weapons
which were to be discussed during those sessions.
Implicit
in the fact that the Appellant was rehired by SOCOM to act as a contractor
during the European meetings is the notion that the professional services
provided by the Appellant demonstrated SOCOMs approval of the procedures by
which the subject communications were made; namely, that the Appellant would offer
technical know how to Government representatives who were interested in
obtaining technical data from the private parties as part of the procurement
process. After all, each of the
meetings, as well as the agendas, were planned, coordinated and facilitated by
the U.S. Government.
At
the Franks hearing, Special Agent
Calvert arrived with a binder full of materials that he creatively used in
crafting his Probable Cause Affidavit.
This binder was entered into evidence at the hearing. (Doc 38).
Included in the binder were numerous communications between many
different U.S. Government representatives who were familiar with the Appellant
and his company, SDI. Some of the
communications in the binder were used by Agent Calvert in preparing his Probable
Cause Affidavit, but many of the communications that were adverse to Agent
Calverts effort to locate any evidence, regardless of how thin or speculative,
that the Appellant violated ง 207 were simply ignored.
Some
of the most telling examples of how the ง 207(j)(5) technological exception
should have provided, at the very least, further investigation by Calvert into
whether a violation had, in fact, occurred, and at most indicated otherwise,
are included here for this court to review.
These communications are all part of the record before this court, and
were all available to Agent Calvert at the time that he sought to obtain a
search warrant from the Magistrate Judge.
In fact, Agent Calvert himself compiled these emails when he received a
copy of the materials from the Inspector Generals office, so there is little
doubt that he was aware of their existence and their substance. (Doc 121, Pg 48, Line 13).
The
first example is an email sent from Donald Jones, the PEO-SP, SOF Ammunition
Program Manager, who attended the meeting in Norway with the Appellant, to
Jessica Tucker, the Contract Specialist for USSOCOM, regarding the rate at
which the Appellant would be paid for his work as a contractor while in
Norway. This email, dated November 24,
2004, explains the Appellants hourly rate:
. . . is justified given the
in-depth technical knowledge and understanding of SOF operational requirements
needed for meetings, at up to CEO level, with representatives from Saab Bofors
Dynamics (Sweden), and the Nordic Ammunition Company (NAMMO) (Norway).
The individual will provide
programmatic, evaluation, advisory, and technical assistance for discussion of
current and future weapons, munitions and energy armament systems in support of
the U.S. Special Operations Command (USSOCOM), Program Executive Office for
Special Programs (PEO-SP). Individuals
expertise is especially vital given the absence at these meetings of the PEO
and Deputy PEO (both are unavailable due to other commitments). (Doc 38).
This
email should have made it clear to Agent Calvert that there existed, at the
very least, the strong possibility that the Appellant was utilized in these
meetings for his technical knowledge and expertise as a Government
representative. Additionally, on
November 17, 2004, there was another email sent from Jessica Tucker to numerous
parties regarding a revised cost proposal for the Appellants trip to
Norway. In that email, she states that:
The consultant (Appellant)
will assist PEO-SP ammunition Program Manager with preparation for, travel to
(overseas), and technical / programmatic discussions with several ammunition
contractors in Europe. (Doc 38).
After
the meetings in Europe concluded, the PEO-SP, SOF Ammunition Program Manager,
Donald Jones, submitted a Trip Report Record that summarized the details of the
trip. In that report, Jones identified
the Appellant as a Consultant to PM SOF Ammo, which means that, according to
the U.S. Government representative who actually attended these meetings, the
Appellant was a representative of the U.S. Government during the meeting with
NAMMO and not a representative of NAMMO, as alleged by Agent Calvert in his
affidavit. Jones report goes on to
state that, in regard to the 70mm warhead:
We were first briefed on the
technical description. Briefing is
available. The technical description is
NAMMO proprietary information. (Doc 38).
This
statement, taken directly from the trip summary report, is written by the U.S. Government
representative who attended the meeting with the Appellant and it clearly
indicates that technological information was discussed in the meeting. The record is entirely void on whether or
not the Appellant represented NAMMO at the meeting in regard to this
information alone, or if he even represented NAMMO in the meeting at all. According to Donald Jones, the Appellant was
a U.S. Government representative while in the meeting. But even if the Appellant switched hats
while at the meeting, it is clear that technical data was discussed. So, even if the Appellant had only
represented NAMMO on that matter, any potential ง 207 violation would have been
cured by the ง 207 exception.
Because
of the serious doubts that Agent Calvert reasonably should have possessed,
based upon these communications, it was reckless and dishonest for him to
assert to the Magistrate Judge that probable cause existed for a ง 207
violation. While the District Court
Judge properly recognized many of the misstatements and dishonest
representations made by Calvert in his affidavit, he did not fully appreciate
the extent of Agent Calverts omissions and misrepresentations. Had Agent Calvert acted reasonably and
honestly in preparing his Probable Cause Affidavit, the Magistrate Judge would
have been presented with the exceptions to ง 207(a) restrictions, covered by ง 207(j),
and with the material information provided to him by the Inspector Generals Office
regarding the details of the meeting in Norway. But since this did not occur, a search warrant was issued based
on a Probable Cause Affidavit that contained incomplete information,
inaccuracies, misstatements and outright misrepresentations that were all made
with either intentional dishonesty or a reckless disregard for the truth.
Because
of the foregoing, it was error for the District Court Judge to find probable
cause on the face of Calverts fatally flawed affidavit for a ง 207(a)(2)
violation.
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.
At the close of the
Governments case in chief, the Appellant moved for a Directed Judgment of
Acquittal, under Fed. Rule 29, based on the argument that the Government had
failed to prove a prima facie case for conspiracy. This Motion was denied based upon the District Court Judges
finding that, even disregarding the testimony of the alleged co-conspirator,
Burke, a jury could still infer that a conspiracy existed from emails that were
exchanged between the Appellant and Burke. (Doc 111, Pg 740, Lines 10-16).
Then, upon the
Appellants Motion for a Judgment Notwithstanding the Verdict and, in the Alternative,
his Motion for New Trial, the District Court dismissed the bribery counts
against the Appellant and granted him a new trial for the wire fraud
counts. The court allowed the jurys
guilty verdict for the conspiracy count to stand, based upon the same reasoning
utilized during the Appellants Fed. Rule 29 Motion at the close of the Governments
case. This was error because the emails
alone, without the context of supporting evidence, constitute insufficient
evidence for which a reasonable juror could arrive at a guilty verdict for
conspiracy.
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).
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 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).
In a conspiracy
case, the Appellate Court must find ''substantial evidence'' connecting an
appellant to a conspiracy which, alternatively characterized, refers to the
''reasonably minded jury'' test. See
generally U.S. v. Clavis, 977
F.2d 538 (11th Cir. 1992); U.S. v. Toler, 144 F.3d 1423 (11th Cir. 1998); U.S. v. Baker, 432 F.3d 1189, 1231-1232 n. 49 & n. 50
(11th Cir. 2005). Thus, to
sustain a conspiracy conviction, the Appellate Court must conclude that a
reasonable fact-finder could determine, based on substantial evidence, that:
(1) an agreement existed among two or more persons; (2) that the defendant knew
of the general purpose of the agreement; and (3) that the defendant knowingly
and voluntarily participated in the agreement.
U.S. v. High, 117 F.3d
464 (11th Cir. 1997).
In
this case, the evidence presented at trial, and the lack thereof, demonstrate
that no reasonable juror could have found an agreement, knowledge of the
purpose of such agreement, or the knowing and voluntary participation in such
an agreement based on the emails alone. In other words, contrary to the District Court Judges finding,
the evidentiary value of the emails, standing apart from the testimony of
William Burke, falls far short of establishing the substantial evidence
necessary to uphold a conviction for conspiracy.
A. The Government Failed to Prove that there
Existed a Conspiratorial Agreement Between
the Appellant and Burke to Commit an Unlawful
Act.
The
Government indicted the Appellant for conspiracy under 18 U.S.C. ง 371, which
requires the Government to prove the existence of a conspiracy by showing: (1)
an agreement between at least two parties, (2) to achieve an illegal goal, (3)
where the parties possess knowledge of the conspiracy and actually participate
in the conspiracy, and (4) where at least one conspirator commits an overt act
in furtherance of the conspiracy. Thus,
it is essential to a conspiracy charge that the Government be able to initially
demonstrate that there was an agreement to do something illegal.
At
trial, the Governments case against the Appellant collapsed when they called
their primary witness, William Burke, to the stand to testify that he conspired
with the Appellant to defraud the United States of his honest services by granting
the Appellant preferential treatment in exchange for money. While on the stand, Burke completely
disavowed his earlier plea agreement and testified that he and the Appellant
never agreed or conspired to commit any unlawful act.
In
his ruling denying the Appellants Motion for Judgment Notwithstanding the
Verdict, or in the Alternative, Motion for New Trial as to the Conspiracy
count, the District Court Judge stated:
The bottom
line is there is ample evidence for this jury to have concluded, that is, a
reasonable juror could have concluded, that proof of the conspiracy was
established beyond a reasonable doubt. It
did not require proof beyond that of the agreement to do something that was
forbidden by law and some overt act in furtherance of it. (Doc 113, Pg 59, Line 24). (Emphasis added).
This
statement by the judge is in contradiction to what a conviction under 18 U.S.C.
ง 371 requires. The first element and
the essence of a conspiracy is the existence of an agreement to commit an
unlawful act. Iannelli v. U.S.,
420 U.S. 770, 777 (1975). Where there
is insufficient proof that the defendant conspired with anybody, a conspiracy
conviction will not be sustained. U.S.
v. Parker, 839 F. 2d 1473 (11th Cir. 1988).
Evidence
presented at the Appellants trial clearly demonstrated that there never
existed an agreement, legal or otherwise, between the Appellant and his alleged
co-conspirator. At the trial, Burke,
the prosecutions star witness, took the stand and unequivocally testified that
there never existed any intent between himself and the Appellant to enter
into an agreement to conduct any illegal activity. (Doc 110, Pg 547, Line 23, Pg 548, Lines 5-22).
Q: Am I clear, can I stand in front of this
jury in closing arguments and tell them that youre saying unequivocally you
never conspired to do anything illegal?
A: Thats true. I will qualify that by saying I entered into the agreement with
no intent to commit a crime. Im not a
legal expert. I learned after the fact
I made mistakes and maybe shouldnt have done it. That I acknowledge and I accept responsibility for that. But I didnt knowingly and wittingly
establish a company, sign an agreement and send invoices to conduct illegal
activities.
Q: Because you have to know the unlawful
purpose of a plan and willfully join it?
A: Thats correct.
Q: You never did that; did you?
A: No, sir.
(Doc 110, Pg 548, Lines 5-22)
Here
was the Governments most critical witness, the man whom the Government claimed
had entered into a conspiracy with the Appellant, taking the stand and denying
that such an agreement or conspiracy to commit an unlawful act ever existed.
Having
their primary witness suddenly deny that a conspiracy ever existed, the Government
was left with a smattering of circumstantial evidence with which to try and
establish that there had, at one time, existed an agreement between the two men
to commit an unlawful act.
The
existence of a conspiratorial agreement may be demonstrated through
circumstantial evidence. Glasser v.
U.S., 315 U.S. 60, 80 (1942) (stating common purpose and plan may be
inferred from development and a collection of circumstances). But here, the Governments circumstantial
evidence was far too weak for a reasonable juror to convict the Appellant of
conspiracy. No other witness took the
stand to testify to a conspiracy. No
other witness testified about an agreement.
The Governments entire conspiracy theory consisted of a relationship
between two people, one of which was the Appellant and the other who testified
at trial that there never was a conspiracy.
Once
Burkes testimony was considered unreliable and, thereby, removed from the
equation, as the District Court Judge stated was necessary in his holding on
the Rule 29 Motion, the renewed Rule 29 Motion, and the Rule 33 Motion for a
new trial, no reasonable juror could have concluded that an agreement existed
between the Appellant and Burke because the only other evidence presented to
the jury of such an agreement was the chain of emails between the two men that
never came close to clearly establishing any sort of agreement, illegal or
otherwise, on its own. This is because
the emails never explicitly demonstrate an agreement, an unlawful objective for
the agreement, or any indication that the two men are doing anything other than
discussing legitimate business matters.
For the emails to have had any meaning whatsoever, it was essential to
the Governments case that Burke testify that the emails were products of the
conspiracy.
In
fact, during the trial, Burke was able to explain precisely the meaning of the
emails. (Doc 110, Pgs 383-501). As he and the Appellant were the only two
people communicating in these emails, Burke was in the best position to inform
the jury about their meaning. And when
asked to do so by the Government, the very entity that called him to the stand
to testify against the Appellant, Burke clearly and without hesitation
testified that the emails were nothing more than an effort on his part to
negotiate future employment with the Appellant by over inflating his value and
puffing his abilities. (Doc 110, Pg
406, Lines 323).
Of
course, the Governments argument was that in his earlier plea agreement, Burke
admitted that a conspiracy had, in fact, existed. (Doc 59, Exh. 41). But the
plea agreement is silent regarding any emails exchanged between Burke and the
Appellant, and, in fact, does not identify how the alleged conspiratorial
agreement was born. (Doc 59, Exh. 41). Therefore, the only viable explanation for
the emails meaning, so central to the judges findings, was the in-court
testimony of Burke, which unequivocally exonerated the Appellant of any
wrongdoing.
But,
the inconsistency between Burkes acceptance of responsibility in the plea
agreement and his subsequent turn about on the stand led the District Court
Judge to find that Burkes testimony, altogether, was unreliable. The resulting aftermath left the emails,
standing alone, as the sole evidence which the judge found was sufficient to
establish the conspiracy.
This
analysis is flawed because at trial, the emails required context, context that
Burkes testimony was intended to frame.
Without that context, the Governments conspiracy case merely consisted
of emails that are ambiguous, vague and open to a variety of interpretations
upon which no reasonable juror could have definitively found, or even
reasonably inferred, that a conspiracy ever existed. Once Burke disavowed the conspiracy, the evidentiary value of the
emails should have been thrown out the door, along with his testimony, when the
judge made his determination regarding the Appellants Rule 29 Motion for
Acquittal.
Therefore,
it was error for the judge to deny the Appellants Rule 29 Motion at the close
of the Governments case on the conspiracy count, and it was further error for
the judge to deny the Appellants Motion for a Judgment Notwithstanding the
Verdict, and in the Alternative, Motion for New Trial on the conspiracy
conviction.
B. The Government Failed to Prove that the
Appellant Knowingly Participated in the
Alleged Conspiracy.
Under 18 U.S.C. ง 371, the Government
must show that the Appellant knowingly and voluntarily participated in the
conspiracy. U.S. v. Brenson, 104
F. 3d 1267 (11th Cir. 1997); U.S. v. Suba, 132 F. 3d 662 (11th Cir.
1998); U.S. v. Hanson, 262 F.3d 1217 (11th Cir. 2001). In this case, the Government failed to do
so.
While
on the stand, William Burke repeatedly testified that he did not enter into a
conspiracy with the Appellant. He
repeatedly testified that he never felt as if he did anything illegal. The only evidence that, according to the District
Court Judge, indicated otherwise was Burkes prior plea agreement and the
previously discussed emails. But, in
his rulings, the judge disregarded Burke altogether and hung his analysis
squarely upon the emails, which by themselves, he found were sufficient to
establish the conspiracy. But, by the
same analysis that required Burke, in some way, to establish the context for
the emails in order to show that an agreement had been reached, so too was
Burke necessary to establish that the Appellant had knowledge of, and
participated in, a conspiracy.
Burke
was, undeniably, the most critical witness to the Governments case because as
part of the alleged bilateral conspiracy, he was to establish the Appellants
knowledge of the conspiracy by admitting to his own. Since a conspiracy takes two to tango, the Government was relying
on Burke to firmly establish his participation in the conspiracy so that the
Appellants participation, through implication, would also be established. There is little doubt that had the Government
believed that the charges against the Appellant could have been established by
the emails alone, they never would have called Burke to the stand in the first
place.
The
Eleventh Circuit has previously reversed conspiracy convictions on
significantly stronger showings of knowing participation than this case
presents.
In
U.S. v. Sarro, 742 F.2d 1286 (11th Cir. 1984), the defendant was shown
to have known about the existence of the conspiracy, was present when overt
acts were committed, and fled when the police came to the scene. Nevertheless, knowledge, presence, and
flight, without proof that the defendant knowingly agreed to participate in the
conspiracy, were not sufficient to support the conviction.
In
this case, the evidence in the record does not indicate that the Appellant
knowingly and voluntarily entered into a conspiracy. In fact, the Governments star witness testified on the stand
otherwise and completely explained the innocuous meaning of all the emails
introduced into evidence at trial. But
even disregarding this testimony, as the judge did in his findings, there was
no basis upon which a reasonable juror could have concluded, based upon the
emails alone, that the Appellant knowingly participated in a conspiracy.
Therefore,
this Court should find that the Government failed to prove the essential
element of knowledge and voluntary participation, and the Appellants
conviction for conspiracy should be reversed.
C. The District Courts Finding of
Insufficient Evidence to Support Conviction
of the Substantive Counts of Bribery
and Wire Fraud Necessitates an
Acquittal, or a New Trial, on the Conspiracy Count.
The
Government indicted the Appellant under the theory that he was depriving the
United States of the honest services of a public official by bribing his
alleged co-conspirator, Burke, to grant his company preferential treatment in
the SOCOM weapons acquisition process.
Therefore, the conspiracy to improperly influence the process was linked
hand-in-hand to the bribes that the Appellant was to have made to Burke. Without bribing Burke there would have been
no preferential treatment and, therefore, no unlawful influence on the process,
so the crux of the alleged conspiracy was the quid pro quo between the two men.
Where
the Governments theory of illegal conspiracy depends upon the defendants
knowledge of, and assistance with, the substantive counts, acquittal on the
substantive count mandates acquittal on the conspiracy count. U.S. v. Campbell, 64 F.3d 967, 975-76
(5th Cir. 1995) (establishing where defendants knowledge of the substantive
offense was required for him to conspire, acquittal on substantive count would
mandate acquittal on the conspiracy charge).
Here, of course, the District Court entered a judgment of acquittal for
the Appellant on the bribery counts and ordered a new trial regarding the wire
fraud counts. Because the Governments
theory of illegal conspiracy in this case depended upon the Appellants
knowledge of and assistance with the bribery and wire fraud, the acquittal on
the bribery count mandated the Appellants acquittal on the conspiracy count,
pursuant to the proposition outlined in Campbell.
The
Governments evidence of the conspiracy, the bribery and the wire fraud all
sprang from the same well: emails
between the Appellant and Burke, the plea agreement Burke later disavowed at
trial, and Burkes in-court exculpatory testimony. Thus, the Governments theory of the illegal conspiracy depended
upon the Government proving that the Appellant had knowledge of, and assisted
with, the substantive counts of which the alleged conspiracy was intended to
further, which was payments for preferential treatment in order to unlawfully
influence the awarding of SOCOM contracts.
When the District Court found that there was insufficient evidence to
support the substantive counts by finding that Burke was never bribed, the
court should have also found there was insufficient evidence to support the
conspiracy count!
The bottom
line remains that theres unequivocal, un-impeached testimony that he (Burke)
performed services and was paid for those services with no connection to any preferential
treatment, influence or result. (Doc
113, Pg 67).
It
runs counter to logic for the District Court Judge to find that the Appellant
and Burke entered into an agreement to improperly influence the process by
exchanging bribes for preferential treatment when the judge found that Burke
never accepted any bribes and never gave the Appellant preferential treatment
at any point in the process. It begs
the question: Why would the Appellant conspire with Burke to exchange bribes
for preferential treatment only to turn around and pay Burke for legitimate
work done that resulted in absolutely no unlawful influence on the process? Clearly, he wouldnt have.
In
the case of Iannelli v. U.S., 420 U.S. 770 (1975), the court set out the
doctrine that is now known as Whartons Rule which is an exception to
the general principle that a conspiracy and the substantive offense that is its
immediate end do not merge upon proof of the latter. The current concept and underlying rationale of Whartons Rule
is stated in Charles E. Torcia, Whartons Criminal Law ง 684 (1996):
An agreement
between two persons to commit an offense does not constitute conspiracy when
the target offense is so defined that it can be committed only by the
participation of two persons. Thus,
there can be no conspiracy between the giver and receiver of a bribe; the giver
and receiver of an illegal rebate; a prostitute and a pimp or panderer; the
parties to adultery; or a fugitive from justice and the person concealing him.
The
Eleventh Circuit has recognized the test, laid out by the Supreme Court in Iannelli,
that a court should look at the elements of both the substantive offense and
the conspiracy charge and if one requires proof of a fact that the other does
not, then there is no violation of Whartons Rule. U.S. v. Brenson, 104 F. 3d 1267 (11th
Cir. 1997).
It
is clear from the Governments indictment, and the case that they presented at
trial, that the crux of the conspiracy theory rested upon the Appellant and
Burke agreeing to exchange bribes for preferential treatment and that Burke did,
in fact, accept bribes in return for granting the Appellant preferential
treatment. The essential element
linking the bribery, conspiracy, and fraud counts together is the element of
agreement between the two alleged co-conspirators to deprive the Government of
the honest services provided by Burke.
In
other words, the conspiracy and the substantive counts are inextricably linked
because, under the Governments theory that the Appellant and Burke conspired
to deprive the United States Government of the honest services of a public
official, there must be a manner and a means by which the deprivation was to
take place. And since the District
Court Judge found that no bribe had occurred and no preferential treatment had
been granted to the Appellant, the conspiracy was gutted and made hollow when
there was no deprivation of honest services that could be shown. Thus, the judge should have found that the
conspiracys marriage to the theory of deprivation of honest services of a
public official necessitated dismissal under the principle espoused by Whartons
Rule when the very means by which the deprivation was said to have occurred
were found to not have occurred at all.
Because
it is not logical to uphold the conspiracy count while finding insufficient
evidence to support conviction on the essential substantive counts which
establish the manner and means by which the deprivation of honest services of a
public official was to have occurred, this Court should find that the District
Court erred in not granting the Appellants Rule 29 Motion at the conclusion of
the Governments case, and by not granting the Appellants renewed Rule 29
Motion, or in the alternative, granting his Rule 33 Motion for New Trial.
D. The Emails Alone are Insufficient to
Establish Proof Beyond a Reasonable Doubt
of a Conspiracy under U.S. v. Orrico.
In his holding, granting the
Appellant a new trial on the wire fraud counts and dismissing the bribery
counts, the District Court Judge found that Burkes plea agreement, which was
introduced into evidence as a prior inconsistent statement, did not constitute
substantial evidence as to each element of the bribery allegations and a
reasonable juror could not have found otherwise. He cited to U.S. v. Orrico, 599 F.2d 113, 117-18 (6th Cir.
1979) for the proposition that only in exceptionally rare cases can a prior
inconsistent statement of a Government witness, by itself, suffice to support a
conviction since it is unlikely that a reasonable juror could be convinced beyond
a reasonable doubt by such evidence alone.
Additionally,
in regard to the wire fraud counts, the judge found that the Government had not
introduced any direct proof of the Appellants guilt and the jury was faced
with making a decision of guilt based upon uncorroborated emails and evidence,
without any supporting testimony, while the only witness with personal
knowledge, Burke, denied any criminal culpability. He therefore re-weighed the evidence, as is permitted under a
Rule 33 Motion for New Trial, U.S. v. Lincoln, 630 F.2d 1313, 1319 (8th
Cir. 1980), and found that a new trial was necessary on the wire fraud counts.
Fundamental
to the judges holding on the bribery count was the concept that Burkes plea
agreement was not enough upon which to sustain a verdict of guilty, and thus a
reversal of the Appellants conviction for bribery was required under the Orrico
analysis. The judge erred, however,
in not extending this same analysis to the conspiracy conviction.
In
ruling to uphold the jurys conviction on the conspiracy count, the judge found
that the conspiracy was supported solely upon the emails. By doing so, the judge committed error by
believing that a reasonable juror could somehow separate Burkes testimony,
either in-court or from the plea agreement, from the emails. This is simply not a reasonable, or
realistic proposition because the emails, without context, fail to establish
proof of anything other than that a conversation, open to a multitude of
interpretations, had taken place between the two men. That is the entire reason the Government needed to call Burke to
the stand, to establish the context with which to interpret the emails.
Imagining
the Government placing the emails in front of twelve strangers and asking them
to read the contents, without providing any meaningful supporting context, and
expecting those twelve individuals to find that the authors of the emails were
conspiring together to defraud the United States of the honest services of a
public official is just too far a reach to make. The emails, alone, are just simply not that informative.
Due
to this fact, the emails were hopelessly bootstrapped to Burke once the Government
called him as a witness. It would have
been impossible for the jury to disregard him altogether, as urged by the Government
in its closing argument. (Doc 111, Pgs 790-804). The question then becomes: which version of
Burke were the emails bootstrapped to, the version that testified on the stand
or the version that testified at the plea hearing? As the jurys verdict indicates, it is apparent that the version
of Burke that the emails were bootstrapped to was the version found within the
pages of his plea agreement, which the District Court Judge determined was the
very prior inconsistent statement that the jury was instructed to not afford
any substantive weight to.
Essentially,
the jury was asked by the Government to view the emails through the looking
glass of either Burkes in-court testimony or his plea agreement, or through no
looking glass at all, thereby treating the emails as separate and standing apart
from anything Burke ever said.
Practically speaking, what was a juror to make of this? Here was the Government calling its star
witness to the stand, whom the Government had made tremendous concessions toward
in exchange for his cooperation in prosecuting the Appellant, only to have the
witness turn around and disavow his plea agreement and testify in court that
the Appellant was innocent, thereby spurring the Government to introduce into
evidence his plea agreement so that they could impeach their own witness. All of that was then followed up in closing
argument with an appeal from the Government to disregard everything Burke ever
said.
There
is little doubt that confusion must have reigned once the jury retired to
deliberate, and there is a substantial and likely risk that when all was said
and done, the jury, not really knowing what to make of the Governments case
against the Appellant, relied on the statements made in the plea agreement as
substantive evidence when interpreting the emails, regardless of the fact that
they were instructed by the judge not to do so. In a case, such as this, in which the Governments case in chief
is riddled with confusion and disarray, it simply is not justice when a
criminal defendant is placed at the substantial risk of being convicted based
primarily upon a prior inconsistent statement of the Governments main witness
against him.
Therefore,
because the emails alone, without the context of Burke, are open to limitless
interpretations that could indicate evidence exists of anything, or nothing at
all, it was error for the District Court Judge to find that while Orrico
prevented the plea agreement from being considered as substantive evidence as
to the bribery count, it was not found to be so as to the conspiracy count. There simply existed the strong likelihood
that the jurys interpretation of the emails would depend upon the substantive
value they accorded to the plea agreement. In other words, once the jury was presented with a context with
which to interpret the emails that was consistent with the very reason the Government
called Burke as a witness to the stand in the first place, any curative
instruction by the judge to disregard the plea agreement as substantive
evidence would not, in reality, have accomplished the purpose for which it was
intended.
Thus,
while the judges curative instruction to the jury not to view the plea
agreement as substantive evidence may have been legally proper, once the jury
was exposed to its contents it would have been impossible for them to disregard
it. And, since under Orrico a
prior inconsistent statement cannot, alone, support a conviction by a
reasonable juror, this court should find that the bootstrapping of otherwise
ambiguous emails to a prior inconsistent statement does not, in any way,
bolster the sufficiency of the evidence to the point that a reasonable juror
could convict this Appellant 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
The
Confrontation Clause of the Sixth Amendment provides In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him. The clause does
not bar admission of a testimonial statement so long as the declarant is
present at trial to defend or explain it through cross examination. Crawford v. Washington, 541 U.S. 36,
59 (2004). If the declarant of a
testimonial statement is available at trial to be cross examined, the prior
statement can be introduced as substantive evidence against the accused if the
declarant made the statement while testifying under oath at a trial or other
proceeding. U.S. v. Brown, 151
Fed. Appx. 787 (11th Cir. 2005).
However, case law has recognized that if the testimonial statement is a
guilty plea of a co-defendant, or witness against the accused, it may not be
used as substantive evidence of guilt against the accused; it is only
permissible to use the plea when its use is limited to proper evidentiary
purposes such as to impeach trial testimony or to reflect upon a witness
credibility. U.S. v. King, 505
F.2d 602, 607 (5th Cir. 1974).
In
this case, Burkes plea agreement was entered into evidence when Burke
disavowed its contents while on the stand at trial. The Government utilized the plea agreement in order to impeach
its own witness on his prior inconsistent statements he had adopted in his plea
agreement. It is interesting to note
that Burke, himself, never truly made the statements found within his plea
agreement; the statements were actually made by the Government and adopted by
Burke at the plea hearing when he was read the plea agreements contents and
asked if he agreed to its substance.
Nevertheless,
the District Court Judge instructed the jury that the plea agreement was not to
be considered as evidence of the Appellants guilt, it was only to be
considered in judging the credibility of Burkes testimony. (Doc 111, Pg 646, Lines 4-14). Then, during closing arguments, the Assistant
U.S. Attorney emphasized Burkes guilty plea several times with what could only
be viewed as a strenuous effort to convince the jury not to believe the version
of Burke who showed up at trial professing both his, and the Appellants,
innocence and to, instead, disregard every single thing Burke ever said because
he lacked credibility. But as argued
previously, the emails were hopelessly bootstrapped to Burke. And, once again, it is clear from the
verdict that the version of Burke that they were ultimately bootstrapped to was
the version found within the pages of the plea agreement.
Therefore,
the question becomes: Where, as here, the Governments case hinges upon a prior
inconsistent statement to establish the elements of the offense that a
defendant is charged with, how is a defendant not prejudiced by the prior
statement when he never had an opportunity to cross exam the witness against
him at the time the statement was made?
In other words, a defendant can cross examine a witness that the Government
calls against him on the day of his trial, but if that witness testifies
favorably for the defendant at trial, the defendant will never have the
opportunity to cross examine that same witness on the day that the witness
actually testified against him at that witness plea hearing.
This
case is unique on a number of levels, but none more so than on this issue. Here, the Government was forced to impeach
its own witness with that witness own plea agreement. At trial, the Appellants cross examination
of Burke could not even be considered to have been a cross examination, since
under direct examination by the Government Burke offered exculpatory testimony
demonstrating the Appellants innocence.
On cross, the Appellant merely confirmed and augmented the testimony
that had already been elicited on direct.
Therefore, the Appellants ability to cross examine Burke at trial was
not in any way truly meaningful because the version of Burke that was truly
testifying against the Appellant was the Burke who testified at the earlier
plea hearing.
Thus,
the statements that were truly harmful to the Appellant were not made on the
day of trial, they were made months earlier, when the Appellant had absolutely
no opportunity to cross examine Burke.
While Crawford informs us that the opportunity to cross examine
the witness on prior testimonial statements will fulfill the requirements of
the Confrontation Clause, the case does not adequately provide a remedy for a
defendant who finds himself in the position of not needing, or even desiring,
to cross examine the witness testifying at trial, but desiring, instead, to
cross examine the other version of that same witness who testified against him
at an earlier proceeding. That Bill Burke, the Appellant was not
allowed to confront.
Without
Burkes plea agreement, this case could have never survived the Appellants
Rule 29 Motion for Acquittal because the only other evidence introduced at
trial, determinative of the Appellants involvement in a conspiracy, would have
been the emails and Burkes in-court testimony. As argued previously, the emails themselves could not have been
found, by a reasonable juror, to have been indicative of anything without the
context of Burke, and Burkes in-court testimony was entirely favorable to the
Appellant. Therefore, the plea
agreement was the only piece of evidence that the Government could point to
that established a context of guilt with which to view the emails, and it was
this context that bootstrapped the emails to the plea agreement.
Recognizing
that the plea agreement would be weighed extremely heavily, if not exclusively,
by the jury in reaching their verdict, and further recognizing that the
Appellant did not have a meaningful or legitimate opportunity to confront the
witness against him, the District Court Judge erred in not granting either of
the Appellants Rule 29 Motions.
Alternatively, the judge should have granted the Appellants Rule 33
Motion for New trial based on the fact that, without the plea agreement, no
reasonable juror could have found sufficient evidence, based upon Burkes
in-court testimony and the emails, for which to sustain a guilty verdict.
IV. WHETHER
THE DEFENDANTS SENTENCE WAS PROPERLY CALCULATED
UNDER THE SENTENCING GUIDELINES.
The District Courts
application of the guidelines to the facts is reviewed de novo. 18 U.S.C. Application ง 3742(e); U.S. v. Martin, 320 F3 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).
The
guideline for a violation of 18 U.S.C. ง 371 is U.S.S.G. ง 2X1.1, which
indicates that the base offense level is determined from the substantive
offenses underlying the conspiracy conviction.
The Defendant was sentenced under ง 2C1.1 of the guidelines based on the
substantive offense of Deprivation of the Intangible Right to Honest Services
of a Public Official (18 U.S.C. งง 1343 and 1346). The Appellant does not make the argument that Burke was not a
public official.
However,
the District Court was incorrect to assess a four level increase to the base
level of twelve (12) based upon Burke being a public official in a high-level
decision making or sensitive position under 2C1.1(b)(3). There is nothing in the record, nor was
there any evidence presented at trial, that would serve to elevate Burke from a
mere public official to a public official in a high-level decision-making or
sensitive position.
Under
the Application section of the Commentary following guideline 2C1.1 is the
following informative definitions and examples of when to apply 2C1.1(b)(3):
(A) Definition: High Level decision-making or sensitive
position means a position characterized by a direct authority to make
decisions for, or on behalf of, a Government department, agency, or other Government
entity, or by a substantial influence over the decision-making process.
(B) Examples: Examples of a public official in a high level decision-making position
include a prosecuting attorney, a judge, an agency administrator, and any other
public official with a similar level of authority. Examples of a public official who holds a sensitive position
include a juror, a law enforcement officer, an election official, and any other
similarly situated individual.
It
is clear from the instructions contained within the Application Notes of
the Guidelines Manual that William
Burke, in no way, constitutes a public official in a high-level decision-making
or sensitive position. In fact, nowhere
in Burkes plea agreement is he identified as anything more than a public
official. (Doc 59, Exh. 41, Pg 2). When viewing the definitions and examples of
public officials in high level decision-making or sensitive positions listed in
the Guidelines, it is abundantly clear that Burke does not share nearly the
level of authority, influence or decision-making ability that the Guidelines
manifest are necessary before a four (4) level increase under 2C1.1 can be
imposed.
After
taking into account the three (3) level decrease under ง 2X1.1(b)(2), which was
granted the Appellant because the alleged acts of the conspiracy were never
completed, the total base offense level should have been nine (9), which, under
the Guidelines, would provide a range of four (4) to ten (10) months
imprisonment.
Additionally,
the District Court Judge found adequate facts to justify sentencing the
Appellant below the sentencing guideline range, and it would be proper to
re-sentence the Appellant at the lower base offense level taking into account
these same considerations.
Based
on the foregoing, the Appellant appeals his sentence as being excessive due to
the miscalculation of his proper base offense level.
CONCLUSION
The
Appellant respectfully requests this court to reverse the Appellants
conviction for conspiracy by either finding that the Appellants Motion to Suppress
should have been granted or that the Appellants Rule 29 or Rule 33 Motions
should have been granted when there was insufficient evidence presented at
trial for which the Appellants conviction for conspiracy can be supported.
The
Appellant further urges this court to find that his Sixth Amendment right to
confront the witness against him was violated, thus also requiring a reversal of
his conviction.
Should
this court not see fit to reverse the Appellants conviction for conspiracy,
the Appellant respectfully requests that this court enter an order directing
the Appellant to be re-sentenced under the proper calculation under the Sentencing
Guidelines Manual.
Respectfully Submitted,
_/s/ Patrick D. Doherty____
Patrick
D. Doherty
_/s/ Jeffrey G. Brown______
Jeffrey
G. Brown
DATE: January 4, 2007
CERTIFICATE OF
SERVICE
I hereby certify that a true and
correct copy of the foregoing Brief of Appellant together with the Record Excerpts were furnished by United States Mail
to Linda Julin McNamara, Assistant United
States Attorney, United States Attorney's Office, 400 North Tampa Street, Suite 3200, Tampa,
Florida 33602, on this 4th day of January, 2007. I also hereby certify that, in compliance
with 11th Cir. R. 31-5(c), an Adobe Acrobatฎ PDF file of the foregoing brief was uploaded via the Internet
to this courts website on January 4, 2007.
_/s/ Patrick D. Doherty_________
Patrick
D. Doherty, Esquire
Florida
Bar Number 155447
Attorney
for Defendant/Appellant
Thomas
Spellissy
_/s/ Jeffrey G. Brown___________
Jeffrey G. Brown, Esquire
Attorney
for Defendant/Appellant
Strategic
Defense International, Inc.
Brown and Doherty, P.A.
Attorney for Appellant
450
Carillon Parkway, Suite 120
St. Petersburg, Florida 33715
Telephone: (727) 299-0099
Facsimile: (727) 299-0044
Florida Bar Number 832431