IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________________________________
CASE NO. 06-14287-BB
________________________________________________________
THOMAS SPELLISSY and
STRATEGIC DEFENSE INTERNATIONAL, INC.,
Appellants,
vs.
UNITED STATES OF AMERICA,
Appellee.
_________________________________________________________
APPEAL FROM THE UNITED STATES
DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
_________________________________________________________
REPLY BRIEF FOR APPELLANTS
THOMAS SPELLISSY and
STRATEGIC DEFENSE INTERNATIONAL, INC.
_________________________________________________________
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 Appellants
Thomas
Spellissy and
Strategic
Defense International, Inc.
DATE: April 4, 2007
United States v. Spellissy, et al.
Appeal No. 06-14287-BB
CERTIFICATE
OF INTERESTED PERSONS
AND
CORPORATE DISCLOSURE STATEMENT
In
compliance with Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1, the
undersigned attorneys hereby certify that the Certificate of Interested Persons
Contained in Appellants’ Brief is complete, and incorporate same into
Appellant’s Reply Brief.
C-1 of 1
CERTIFICATE OF
COMPLIANCE WITH TYPE-VOLUME LIMITATION
The
Appellants certifies that this brief contains 5,715 words in Times New Roman 14
point font.
i
TABLE OF CONTENTS
Page
Certificate of Interested Persons and Corporate
Disclosure Statement ………….. C-1
Certificate of Type Size and Style ……………………………….………………….
i
Table of Contents ………………………………………………………………….. ii
Table of Authorities ……………………………………………………………….. iii
Introduction …………….………………………………………………………….. 1
Argument ……………………………….……………………………………..…… 4
A. Agent
Calvert’s Probable Cause Affidavit ……………………………………… 4
B. The
Conspiracy Conviction is Not Supported by Substantial Evidence ………. 14
C. Appellant’s
Sixth Amendment Violation …………………………………….... 18
D. Burke Was Not a Public
Official in a “Sensitive Position” ……………………. 21
Conclusion .................................................................................................................
25
Certificate of Service
……………………………………………………………... 26
ii
TABLE OF
AUTHORITIES
CASES CITED PAGE
NO.
Crawford v.
Washington, 541 U.S. 36, 61 (2004)
………………………………. 2, 19
United States
v. Hernandez, 896 F.2d 513, 517 (11th
Cir. 1990) …………………. 14
United States
v. High, 117 F.3d 464 (11th Cir.
1997) ……………………………... 14
United States
v. Lazarre, 14 F.3d 580, 582 (11th
Cir. 1994) ………………….. 21, 22
United States
v. Lyons, 403 F.3d 1248, 1250 (11th
Cir. 2005) ...………………….. 12
United States
v. Matzkin, 14 F.3d 1014, 1021 (4th
Cir. 1994) ……………… 3, 21, 22
United States
v. Orrico, 599 F.2d at 113, 117-18
(6th Cir. 1979) ...…………… 16, 17
United States
v. Stephenson, 895 F.2d 867, 877-78
(2d Cir. 1990) …………… 21, 22
STATUTES
18 U.S.C. § 207 ……………………………………………………………... 1, 4, 5, 6
18 U.S.C. § 207(a)(2) ……………………………………………………….. 4, 6, 8,
9
18 U.S.C. § 207(j)(5) ………………………………………………………...… 12, 13
18 U.S.C. § 208 …………………………………………………………………... 5, 6
18 U.S.C. § 371 …………………………………………………………..……. 15, 16
UNITED STATES SENTENCING
GUIDELINES
U.S.S.G. § 2C1.1(b)(3) ………………………………………………………….. 3, 24
U.S.S.G. § 2C1.1(b)(1)(A) ………………………………………………………… 21
iii
INTRODUCTION
The
Government’s brief aptly demonstrates how tenuous its case against the Appellant
was at trial, and serves to strengthen the Appellant’s cause on appeal. Now that the record is complete and all can
be seen from the reflective vantage of hindsight, it is quite apparent that the
Appellant was the victim of a concerted effort to convict him at all costs of
crimes that he not only did not commit, but that are glaringly inconsistent
with his lengthy record of unblemished and highly distinguished military
service to the United States.
Upon
review, this Court will clearly see how Special Agent Calvert’s overzealous and
unethical conduct in seeking a search warrant for the Appellant’s home, based
upon an erroneous, dishonest, and incomplete probable cause affidavit, misled
the Magistrate Judge into believing that certain crimes had been committed when
they simply were not. Succinctly
stated, the Appellant did not violate 18 U.S.C. § 207 because the 70mm warhead
was not a “particular matter” and because the Appellant fell within the
exception to the statute. Additionally,
the record completely and accurately reflects the manner in which Special Agent
Calvert cherry-picked data and manipulated facts and the law in order to
intentionally mislead the Magistrate Judge into issuing him a search warrant.
Additionally,
the Government in its brief has done nothing to effectively counter the
Appellant’s argument that there was insufficient evidence presented at trial
from which all of the necessary elements of a conspiracy could be shown. The record reflects that no reasonable juror
could have found proof beyond a reasonable doubt that the emails alone,
exchanged between the Appellant and Burke, established that an agreement had
been formed and that the Appellant knowingly participated in achieving an
illegal goal. The Government’s brief
relies on recycling the emails into an editorialized format in an attempt to
lend the emails weight that, by themselves, they simply do not have. It is frankly inconceivable that the
Government’s conspiracy case against the Appellant could rest solely on these
emails. Bill Burke’s plea agreement was
parasitically attached to the emails, and it made its way into the jury room
where it was improperly digested during the jury’s deliberations. The toxicity of the plea agreement infected
the emails with criminal meaning, and they could not be cured of the taint,
regardless of the judge’s finding to the contrary.
Furthermore,
the Government has misunderstood and dismissed out of hand the Appellant’s
Sixth Amendment confrontation clause argument, without taking the time to
consider that Crawford v. Washington,
541 U.S. 36, 61 (2004), places an extremely high value on the ability of a
defendant to meaningfully cross examine a witness in order to test the
reliability of the evidence offered against him. Because the Appellant believes that he was deprived of meaningful
cross examination against the true witness against him, Burke’s plea agreement
as adopted by Burke at an earlier hearing, he believes that his Sixth Amendment
rights were violated. The Burke who
took the stand, in effect, testified for the Appellant while the Burke in the
plea agreement testified against him.
By not having the opportunity to cross examine the witness at the time
the witness testified against him, the Appellant was deprived of his right to
confrontation.
Finally,
the Appellant’s sentence should have never been enhanced because Burke was not
a public official in a sensitive position, and the Government’s argument to the
contrary is based on a case, United States
v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994), that involves a public
official in a significantly higher and more authoritative position than Burke
held. Burke simply does not qualify as
someone who maintained a sensitive position, based upon the clear examples laid
out in the commentary to U.S.S.G. § 2C1.1(b)(3). A close look at the examples listed there reveals that Burke did
not hold the sway, authority, power or influence to qualify as a public
official in a sensitive position, and nothing the Government has raised in its
brief establishes otherwise.
As
discussed in the Appellant’s initial brief, and as discussed further below, the
Appellant’s conviction for conspiracy should be reversed, or he should be
re-sentenced under the proper Sentencing Guidelines calculation.
ARGUMENT
A. Agent
Calvert’s Probable Cause Affidavit
The
issues over what constitutes a specific party and a particular matter under 18
U.S.C. § 207(a)(2), and the arguments asserted by both the Appellant and the
Government in this regard, embrace a very simple question. By considering the totality of the
information available to him, did Agent Calvert act with a reckless disregard
for the truth, or intentional dishonesty, when he crafted the probable cause
affidavit that he submitted to the Magistrate Judge, and were his omissions and
misrepresentations of sufficient materiality to void the fruits of the
search? After a review of the record is
complete, the answer is a clear and resounding “yes”. The genesis and foundation of the Appellant’s argument boils down
to the very straightforward assertion that Agent Calvert misled the warrant
issuing judge with a probable cause affidavit that not only contained
statements made with reckless disregard for the truth, but that Agent Calvert
also omitted material facts that clearly demonstrate no probable cause existed
for a U.S.C. § 207 violation.
The
ultimate point that the Government has disregarded in its brief is that Agent
Calvert crafted his affidavit by cherry - picking and manipulating the
information in his possession in an effort to bolster the appearance of
criminal conduct while effectively ignoring, or misrepresenting, any
indication, regardless of how clear, of the Appellant’s innocence. The cumulative effect of his omissions and
misrepresentations was a fatally tainted affidavit that materially
misrepresented the facts and the law, and ultimately influenced the judge’s
decision to issue the search warrant.
One of
the clearest indicators of Agent Calvert’s bad faith, dishonesty, and
recklessness is the fact that he sought a search warrant based on a § 207
violation when, by the Government’s own admission, the effective date by which
to measure 18 U.S.C. § 207 violations was going forward from the effective date of the Appellant’s actual retirement on
December 31, 2004.
“In order to determine whether defendant Spellissy
violated the terms of his employment, and thus violated §§ 207(a) and (b) and
208(a), it was material for the government to state the date that defendant
Spellissy retired. It is undisputed that
defendant Spellissy retired from military service on December 31, 2004. Consequently, the restrictions on post-employment activities embodied in 18 U.S.C. §
207(a) and (b) are measured from that date, as opposed to the date that he
no longer was involved in the procurement process which is meaningless.” (Doc 22, pg. 5-6) (emphasis added).
Therefore,
according to the Government’s own admission, any violation of § 207 could have
only occurred after the date the
Appellant actually retired from the
military on December 31, 2004. Yet
Calvert presented the Magistrate Judge with an affidavit that alleged a
violation of § 207 had occurred on the Norway trip the Appellant took at the
beginning of December, weeks before the effective measuring date for a § 207 violation
began. Therefore, probable cause could
not have possibly existed for any § 207 violation that occurred before the
December 31, 2004 date. While Calvert’s
affidavit does mention a meeting that occurred in January of 2005 between NAMMO
and the Government, in which the Appellant did represent NAMMO, the affidavit
does not allege that any particular matters were discussed in this meeting that
would prevent the Appellant from attending on behalf of NAMMO. (See attachment to DOC 41, pg. 3-4).
Therefore,
Calvert’s affidavit clearly made an effort to characterize the Norway meetings,
which took place before the Appellant’s retirement, as the origin of the
alleged violations for which probable cause was said to exist. (See attachment to DOC 41, pg. 5-7). Because the Appellant could not have
violated § 207, or 208 for that matter, before his retirement date had passed,
the District Judge erred by failing to recognize this material fact and that
error is clear error.
Regardless
of the clear error in the measuring date of the alleged violations, the Government’s
argument that the District Court Judge ruled correctly in denying the
Appellant’s motion to suppress completely misses the mark by attempting to
justify and explain away Agent Calvert’s material omissions and statements made
with a reckless disregard for the truth. Quite simply, neither the facts nor the law support the District Court
Judge’s decision, or the Government’s argument on appeal, for the following
reasons.
First,
the Government correctly recognizes that under 18 U.S.C. § 207(a)(2), a former
employee of the Executive branch of the Federal Government commits a crime if,
within two years after he leaves his employment with the United States, he
communicates with a department or agency of the United States on behalf of
another person, intending to influence the department or agency in connection
with a “particular matter” that the
former employee knows or reasonably should know actually was pending under
his official responsibility within a period of one year before he left his
employment with the United States and that involved
a “specific party” at the time the matter was pending. (Brief of USA at pg. 26) (emphasis
added). As is always the case when
assessing a statute, the plain meaning of the words is important.
The
plain meaning of the words: particular,
actually, pending, involved, specific,
as utilized in the statute, lead to the inescapable conclusion that no matter
what else is disputed, there can be little argument that the statute seeks, in
specific and concrete terms, to identify what activities are prohibited, with
precisely whom, and when. Shedding any
essence of ambiguity, the statute lets all who seek to abide by its terms know
that it is a particular matter with a
specific party that actually was pending which is regulated.
Yet
incredibly, in the same breath in which it recognizes how critical it was for
the judge to find at the Franks
hearing that the warhead was a particular matter, the Government states in a
footnote that “Although this finding was critical to the District Court’s
ruling, even if NAMMO had been only one of several contractors under
consideration for the award of the contract to supply the 70mm rocket warhead,
the 70mm rocket warhead contract still would have constituted a ‘particular
matter’ involving a ‘specific party’ because Spellissy would have known that
DOD might award NAMMO the contract.” (Brief of USA at pg. 26-27) (emphasis
added). This argument is faulty because
the judge’s finding was based on Huss’ testimony that the 70mm warhead was a
particular matter because it was
manufactured only by NAMMO, thus a 70mm warhead manufactured by anyone else
would not have been a particular matter.
In
effect, the Government’s argument seems to be an attempt to insert an element
of ambiguity into an otherwise clear and specific statute by arguing that the
Appellant should have known that NAMMO was a specific party because DOD “might”
have awarded NAMMO the contract for production of the 70mm. If this is indeed true, then it could
conceivably be argued that any manufacturer who makes a product that the DOD might be interested in procuring is a
“specific party” under the terms of 18 U.S.C. § 207(a)(2). This, of course, is plainly at odds with the
plain meaning of the clear language of the statute. A former employee of the Executive branch of the United States Government
is not required to avoid dealing with any
party that might be awarded a
contract by the United States Government during the prohibited time period,
instead he is required to avoid dealing with a specific party regarding particular
matters. The Government’s
interpretation of the statute seems to be that a former employee cannot deal
with any party that could be “one of
several contractors” who might be
awarded contracts. This interpretation
of the statute basically amounts to a blanket ban on former employees,
preventing them from dealing with any contractors who have contracted with the
Government during the employee’s term of employment, a prohibition that is not
proscribed by 18 U.S.C. § 207(a)(2).
The
bottom line is simply that for probable cause to exist for an 18 U.S.C. §
207(a)(2) violation, the Appellant must have actually been aware of who the
specific party was that he was prohibited from representing before the
government and he must have known what particular matter was subject to
prohibition. The plain language of the
statute narrows the focus of its meaning to the point that a reasonable person
does not have to guess about what and to whom the DOD might award a contract, contrary to the Government’s argument to
the contrary. And based upon the
Appellant’s clear intent to avoid running afoul of any conflict of interest
laws, as evidenced by the NAMMO ethics letter cited by the Government on page 9
of its brief, no reasonable person could find probable cause existed for a 18
U.S.C. § 207(a)(2) violation, even when the Government seeks to cloak the
statute in the kind of ambiguity that the statute’s very terms eschew.
Additionally,
the Government seeks to assert that because Captain Huss testified at the Franks hearing that NAMMO was the sole
manufacturer of the 70mm warhead, that the “market reality” was that NAMMO was
the only company that was capable of producing that product at the time. (Brief of USA, pg. 29). In so doing, the Government completely
ignores the Appellant’s argument that if NAMMO were, in fact, the sole
manufacturer of the 70mm warhead, then there would be no need for the
Government to seek bidding on that weapon from potential manufacturers. (Appellant’s Brief, pg. 24-26). Indeed, if NAMMO were the sole provider,
they would be the beneficiary of a sole source contract and there would be no
need for other manufacturers to bid on the 70mm warhead.
But,
perhaps most importantly, the Government’s argument, and for that matter Huss’
testimony at the Franks hearing that
70mm warhead was a particular matter because that product was “synonymous” with
NAMMO, is undermined by the very wording of the memorandum itself. (Doc 38, Memorandum). That document calls for an “improved” 70mm
warhead, a term that gains substantial importance when the Government’s
argument is that the 70mm warhead is a particular matter because it is an “off
the shelf” product that is already manufactured by NAMMO and requires no
testing, development, etc. (Brief of
USA, pg. 30). Clearly, the word
“improved” denotes that the 70mm warhead must be of a different quality then
the warhead currently available on the market.
Thus,
contrary to the Government’s argument that the District Court was correct in
according such hefty weight to Captain Huss’ testimony, the reality of the
matter is that others were capable of manufacturing, modifying, or otherwise
“improving” the warhead, and that is why Congressional funding was sought in
order to obtain bids from potential manufacturers. (Appellant’s Brief, pg. 25, testimony of Huss). Because the memorandum did not identify
NAMMO as a manufacturer, and because NAMMO could not possibly be “synonymous”
with the 70mm warhead because the memorandum sought an “improved” version of a
70mm warhead, there is simply no way that the warhead could be considered a “particular
matter” under § 207.
Furthermore,
the Government’s argument that any omission from the affidavit that the
Appellant’s employment restrictions were limited only to “particular matters”
would not have affected the probable cause determination is patently
false. (Brief of USA, pg. 33). The statute’s restriction of violations to
“particular matters” is an essential element of the offense. Agent Calvert’s recklessness in abridging
the statute to erase this critical element from the Magistrate Judge’s
attention represents, at the very least, a recklessness that compromises the
integrity of the entire affidavit. If
the warrant issuing judge is presented with a blatant misrepresentation of the
law, how can it be argued that the search warrant was validly obtained? When a law enforcement officer, such as
Agent Calvert, completely disregards a critical element of the offense, and
thereby expands the scope of a statute’s prohibitions in order that he might
manipulate the appearance of a defendant’s conduct to seem more criminal than
it actually was, a clear violation of the Fourth Amendment’s protection against
unreasonable searches and seizures is born.
Finally,
the Government erroneously asserts that since the Appellant has raised the
issue of the 18 U.S.C. § 207(j)(5) exception that this Court may consider this
argument only for plain error because it was not raised in the court
below. (Brief of USA, pg. 33, 34). But this is an erroneous assertion. The Appellant has argued throughout the Franks hearing, the trial, and his
initial brief that Agent Calvert made numerous material misrepresentations and omissions in piecing together his
probable cause affidavit. In this
instance, a material omission came from the very statute itself under which
Agent Calvert sought to establish that probable cause existed to search the
Appellant’s home. The Appellant’s § 207(j)(5)
argument is merely an extension of the same argument that he has made all along
that Agent Calvert made material omissions from his probable cause affidavit
that misled the warrant issuing judge when he sought the search warrant. Thus, since this is not a new argument, this
court is not restricted to consider the argument only for plain error, as the
Government would contend. This court
may review the District Court’s findings of facts for clear error, and its
application of law to those facts de novo.
United States v. Lyons, 403
F.3d 1248, 1250 (11th Cir. 2005).
The
Government simply ignores, or attempts to minimize, the evidence available to
Agent Calvert that demonstrated that the Appellant would have fallen within the
§ 207(j)(5) exception. (Brief of USA,
pg. 34-37). On page 35 of its brief,
the Government completely mischaracterizes the meaning of one of the
Appellant’s cited emails supporting his § 207(j)(5) argument by stating:
“Although government officials mentioned in one email
that Spellissy had specialized technical knowledge that would be helpful to the United States in meeting
with European contractors, none of the emails stated that Spellissy’s sole
purpose in representing NAMMO was to furnish scientific or technological
information.” (emphasis added).
In
fact, the cited email, found on page 32 of the Appellant’s Brief, states, after
explaining that the Appellant would provide “technical” assistance on the trip,
that:
“Individual’s expertise is especially vital given the absence at these meetings of the PEO and
Deputy PEO (both are unavailable due to other commitments).” (emphasis added).
Needless
to say, there is a significant contradiction between the clear language in the
email that the Appellant’s technical assistance was “especially vital” and the
Government’s characterization that the Appellant’s technical assistance would
merely be “helpful.” The email
demonstrates the strong likelihood that the Appellant was utilized in the
Norway meeting for his vital technical expertise. Thus, Agent Calvert was reckless and/or dishonest in ignoring
this information at the time he sought the warrant and omitting it when he
crafted his probable cause affidavit.
B. The
Conspiracy Conviction is Not Supported by Substantial Evidence
The Government’s
argument concerning the sufficiency of the evidence on the conspiracy count is
indicative of the creative sculpting of circumstantial evidence that has
plagued this case ever since Agent Calvert began investigating the Appellant. Just as Calvert cherry – picked and
manipulated the data available to him when crafting his probable cause
affidavit, so too has the Government’s argument on appeal attempted to enhance
and endow with criminal meaning the emails between Burke and the Appellant
that, on their face, simply do not establish proof beyond a reasonable doubt
that all of the necessary elements of a conspiracy offense have been satisfied.
To say
that the emails spoke for themselves is a grievous exaggeration. (Brief of USA, pg. 47). This is especially the case when one
considers the solitary burden that these emails are expected to carry in
demonstrating “substantial evidence” connecting the Appellant to a conspiracy
with Burke, as the District Court Judge erroneously found that they did. (DOC 72, pg. 5). (Brief of USA, Pg. 40, citing
United States v. Hernandez, 896 F.2d 513, 517 (11th Cir. 1990). It is simply a reach of reason to believe
that these emails, by themselves, prove beyond a reasonable doubt that a
conspiracy existed, that the Appellant knew of the conspiracy, and that he
voluntarily joined the conspiracy. United States v. High, 117 F.3d 464
(11th Cir. 1997). Regardless of how
earnestly it attempts to do so, the Government’s effort to inject criminal
inference and assumption into the meaning of the emails simply fails to
establish proof, beyond a reasonable doubt and by substantial evidence, that
the Appellant conspired to do anything illegal.
The
Government attempts to color the email communications between the Appellant and
Burke as a “dishonest arrangement” that showed they “were working together in a
manner that defrauded the United States” by arguing that the Appellant’s email
responses to Burke “showed that Spellissy supported and encouraged Burke so
that Burke would continue to work on behalf of Spellissy’s clients.” (Brief of USA, pg. 44). While the Appellant’s “support and
encouragement” may have indicated any number of things, not the least of which
was that the Appellant was merely a sounding-board for his friend’s work-related
gripes and complaints, it certainly does not rise to the required level of
establishing proof beyond a reasonable doubt that an agreement was reached between the men, as required under 18 U.S.C.
§ 371.
Likewise,
nothing in the Government’s brief illuminates how the Appellant knowingly
participated in a conspiracy to achieve an illegal goal. The Government’s argument lays out and
editorializes bits and pieces of the emails exchanged between the Appellant and
Burke, and ultimately presents the thesis that “[t]he fact that Burke denied
that he had intended to participate in a criminal conspiracy with Spellissy did
not require the jury to find that Spellissy had not conspired with Burke,
especially in light of Burke’s inability to provide a logical and plausible
explanation for the emails that Spellissy and Burke had exchanged.” (Brief of USA, pg. 48). But, the question is not whether Burke could
provide a logical and plausible explanation for the emails, the question is
whether the emails, standing alone, constitute substantial evidence for which a
jury could find proof beyond a reasonable doubt that every element of a § 371
conspiracy was established. Without
Burke, and especially without his plea agreement, a jury could not have reached
this conclusion. Therefore, Burke’s
plea agreement unfairly influenced the jury’s interpretation of the emails,
eliminating any likelihood that the emails could possibly stand on their own
and, by themselves, establish the elements of a conspiracy beyond a reasonable
doubt. For better or for worse, the
emails were bootstrapped to Burke and required either the context of his in
court testimony or his plea agreement to establish meaning.
To this
end, the Appellant believes that the analysis of the Orrico decision is important. (Appellant’s Brief, pg. 49, citing United States v. Orrico, 599 F.2d at 113, 117-18 [6th Cir.
1979]). As an initial matter, the
Government has misunderstood the Appellant’s Orrico argument, and it is important for that misunderstanding to be
addressed. In its brief at page 52, the
Government states the Appellant contends “that because Burke repudiated his
guilty plea, the emails constituted prior inconsistent statements of Burke’s,
insufficient to establish the Defendant’s criminal liability.” But, it is not the emails that the Appellant
has argued constituted prior inconsistent statements. The prior inconsistent statement was Burke’s plea agreement
itself which was introduced at trial to impeach Burke when he testified
favorably for the Appellant. (Brief of
Appellant, pg. 48-53). This plea
agreement, found by the judge to be insufficient to support the evidence on the
substantive counts pursuant to Orrico,
should have likewise been found to be insufficient to support the conspiracy
count because the emails required the
substantive context provided by the plea agreement to endow the emails with
criminal meaning.
The
Appellant’s primary Orrico argument
is that the evidentiary value of the emails is so weak on its own in
establishing proof beyond a reasonable doubt as to each element of a conspiracy
charge, that Burke’s plea agreement is, in reality, the true cornerstone on
which the jury relied in interpreting the emails and in, ultimately, finding
the Appellant guilty of conspiracy. In
essence, since the plea agreement was bootstrapped to the emails, the emails
could not have been considered on their own by the jury when the jury found the
Appellant guilty of conspiracy. And
because the District Court Judge found that, under Orrico, the plea agreement did not support the Appellant’s
convictions on the substantive counts, he should have also reached this
conclusion as to the conspiracy count because the emails, as bootstrapped to
the plea agreement, were cumulatively still insufficient to establish
guilt. The emails and the plea
agreement, bootstrapped together, essentially became one prior inconsistent
statement that is not sufficient, under Orrico,
to support a conviction for conspiracy.
C. Appellant’s
Sixth Amendment Violation
Once
again, the Government has completely misunderstood the Appellant’s
argument. On page 55 of its brief, the
Government states “[a]pparently recognizing that they suffered no violation of their Sixth Amendment right to confront the
witness, the Defendants contend that they suffered “unfair prejudice”
because they did not have an opportunity to cross-examine Burke at the time he
entered his guilty plea months before the trial.” (emphasis added). This
assertion is almost comical when the Appellant’s titled argument, found on page
54 of the Appellant’s brief, reads:
“WHETHER
THE JUDGE ERRED IN NOT GRANTING THE APPELLANT’S RULE 29 MOTION FOR A DIRECTED
JUDGMENT OF ACQUITTAL WHEN THE INTRODUCTION INTO EVIDENCE OF BURKE’S GUILTY
PLEA VIOLATED HIS SIXTH AMENDMENT RIGHT
TO CONFRONT THE WITNESS AGAINST HIM IN ANY MEANINGFUL WAY” (emphasis added).
The
Appellant’s argument is clearly that his Sixth Amendment right to confrontation
was violated because he did not have a meaningful opportunity to cross examine
the witness against him. Contrary to
the Government’s argument on page 56 if their brief that “[t]he Sixth Amendment
. . . does not preserve a defendant’s right to deliver harmful blows on
cross-examination and to elicit testimony that contradicts a witness’s testimony
on direct examination – it only preserves a defendant’s right to confront the
witnesses against him”, the Appellant believes that the Sixth Amendment
requires more than just the mere opportunity to face a witness in the
courtroom. As stated by the Court in Crawford, the Confrontation Clause:
“…commands
not that evidence be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of
cross – examination. The Clause thus
reflects a judgment, not only about the desirability of reliable evidence (a
point on which there could be little dissent), but about how reliability can
best be determined.” Crawford v. Washington, 541 U.S. 36, 61
(2004).
There
can be no doubt that Crawford places
strong emphasis on effective and meaningful cross – examination. Id.
at 63 (quoting M. Hale, History and Analysis of the Common Law of
England 258 (1713) that “adversarial testing ‘beats and bolts out the Truth
much better’.”) The issue that the
Appellant has raised is that he was denied true adversarial testing through the
crucible of cross examination because, at trial, the witness against him,
Burke, was not truly a witness against him.
The real witness against the Appellant was Burke’s plea agreement, once
it was introduced into evidence as Burke’s prior inconsistent statement. In other words, the Appellant was confronted
with a version of the testifying witness whom he could not cross – examine
because that witness was not present.
The witness who was present in court was someone whom the Appellant had
no reason to confront because he was not a “witness against” the Appellant.
This
argument is more than an esoteric distinction.
This argument cuts to the heart of what it means for a defendant to
truly have the opportunity to confront the witness against him and to test the
reliability of the evidence that is offered by the Government. Is, as the Government argues, confrontation
satisfied simply when a Government witness takes the stand, or, does
confrontation mean more? The Appellant
argues that confrontation, under the Sixth Amendment, means more than just
facing a witness on the stand, it means confronting that witness at the time the witness is actually
testifying against the
defendant. As argued in Appellant’s
brief, pages 54-58, the Burke who took the stand in the Government’s
case-in-chief never testified against the Defendant; indeed, he testified
favorably for the Defendant. But in
introducing Burke’s plea agreement as a prior inconsistent statement, the
Appellant was faced with essentially another witness against him whom he did
not have the opportunity to cross examine, meaningfully confront, or test for
reliability.
Thus,
the Appellant was denied the opportunity to truly confront the witness against
him and his Sixth Amendment constitutional rights were violated.
D. Burke
Was Not a Public Official in a “Sensitive Position”
The
Government cites to United States v.
Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994), for support in their
contention that Burke was a public official in a sensitive position. (Brief of USA, pg. 60). However, the position that Burke held fell
far below that of the defendant in Matzkin,
who was a GS-15 supervisory Navy engineer who was the branch head of a number
of Navy engineers with responsibility for technical aspects of major
procurements. Id.
The
Eleventh Circuit has recognized that the ability of a public official to
exercise some decision making authority does not necessarily qualify him as a
high level official or the holder of a sensitive position that triggers the
sentencing enhancement. United States v. Lazarre, 14 F.3d 580,
582 (11th Cir. 1994) (citing United States
v. Stephenson, 895 F.2d 867, 877-78 (2d Cir. 1990). In Lazarre,
this Court found that the enhancement was proper because the bribed official
held a level of discretion and responsibility that was similar to that of a
supervisory law enforcement officer or prosecuting attorney or judge, as
indicated in the application notes of U.S.S.G. § 2C1.1(b)(1)(A). Id.
at 581. In coming to this decision,
this Court found that the official’s capacity as an INS assistant district
director for detention and deportation bestowed upon him authority to set
bonds, release detainees, and have final authority to deny or grant a parole
request. Id. at 581-82. The ability
to deny or grant parole was the significant and sensitive power that this Court
pointed to as being sufficient to qualify the official as a person occupying a
sensitive position. Id. at 582.
Burke
was nowhere near the level of sensitivity or decision making as the officials in
Matzkin or Lazarre. Burke, instead,
was closer to the public official in Stephenson
who was a Export Licensing Officer at the United States Department of Commerce
who was responsible for reviewing applications for federal approval to export
high – tech equipment from the United States to the Soviet Union, China and
other countries. Stephenson, 895 F.2d at 869.
In finding that the defendant in Stephenson
was not a public official in a high level or sensitive position, the court
stated that the commentary to the statue underscores the Sentencing
Commission’s intent that the provision apply to corruption by officials sitting
in high positions of public trust and that some degree of discretion, as well as
possession of security clearance, does not elevate a mid-level government
employee up to the level of a public official in a sensitive position. Id.
at 878.
The District
Court below ruled that because “Burke and his team reviewed, analyzed and
packaged” proposals for the actual decision makers that he was in a sensitive
position. (DOC 114 at 45). But this falls far short of establishing the
kind of decision making authority or influence that is required before a public
official can be found to be in a sensitive position, as outlined in Lazarre, 14 F.3d 580 at 582 (n7 stating
that the official in that case was different from officials cited by the
defendant because those officials “were not given such broad decision making
authority”). Burke was a contractor who
possessed no such authority and his influence on the process was not only
minimal, it was sometimes not even identifiable as the following testimony from
Dr. Uhler during the sentencing hearing demonstrates:
Q: Okay. As for you personally, did you personally
ever seek Bill Burke’s opinion on a project or proposal?
A: I did
not.
Q: Did you
personally ask Bill Burke for his opinion as to the ranking of proposals?
A: I did
not.
Q: Did you
personally – so then the answer would be that you personally never relied on
Bill Burke’s personal opinion in the course of your work?
A: I did
not. (DOC 114, pg. 33).
This
line of questioning was then followed up by the Government, and the Assistant
United States Attorney asked:
Q: Dr.
Uhler, was Bill Burke the team leader in the – for Centel?
A: To the
best of my knowledge, he was.
Q: Do you
recall how many people worked under him?
A: I do
not. I think it was a handful. Maybe four or five at least in the immediate
office. He had access, I think, to the
rest of Centel organization, though.
Q: And when
you said that he was part of this process, the staffing, was this his whole
group of people? Like, in other words, would you be able to
differentiate the opinions of Mr. Burke from the other four or five people in
the section?
A: I do not
think so. (DOC 114, pg. 34).
This
testimony clearly indicates that while Bill Burke may have been in a position
in which his opinion was valued or accorded weight, he was most certainly not
in a position that equates to the examples of officials in sensitive position
as outlined in the commentary to U.S.S.G. § 2C1.1(b)(3). Because the District Court Judge found otherwise,
this constitutes error.
CONCLUSION
For the foregoing reasons, this Court should reverse
the conspiracy conviction against the Appellant, or remand the case so that he
may be re-sentenced under the proper Sentencing Guidelines calculation.
Respectfully Submitted,
_/s/ Patrick D. Doherty_____
Patrick
D. Doherty
_/s/ Jeffrey G. Brown_______
Jeffrey
G. Brown
DATE: April 4, 2007
CERTIFICATE OF
SERVICE
I
hereby certify that a true and correct copy of the foregoing Reply Brief of
Appellants 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 April, 2007. I also hereby certify that, in compliance
with 11th Cir. R. 31-5(c), an Adobe Acrobat® PDF file of the foregoing brief was uploaded via the Internet
to this court’s website on April 4, 2007.
_/s/ Patrick D. Doherty_______
Patrick
D. Doherty, Esquire
Florida
Bar Number 155447
Attorney
for Appellant
Thomas
Spellissy
_/s/ Jeffrey G. Brown_________
Jeffrey G. Brown, Esquire
Brown
and Doherty, P.A.
450
Carillon Parkway, Suite 120
St. Petersburg, Florida 33716
Telephone: (727) 299-0099
Facsimile: (727) 299-0044
Florida Bar Number 832431
Attorney
for Appellant
Strategic
Defense International, Inc.