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Vol. 7, No. 12     As Published in the Advance Sheets on March 20,  2000


Highlights of this Issue:

Relevant Conduct and the Pinkerton Rule:

The Appointments Clause:

The use of "gang membership" evidence to discredit defense witnesses:

Prosecutorial Vindictiveness:

U.S.S.G.  Issues - "Common Schemes":


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United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (Judge Jones)
United States v. Takahashi, No. 98-10219 (9th Cir. 3/6/00) (Judge Van Graafeiland)

In both of these cases the Ninth Circuit allowed the Government to use expert testimony to suggest that defense witnesses who are members of the gang were lying to protect the defendant due to a code of silence or a practice of taking the blame for one another within the gang.

In Hankey, the defendant and a co-defendant were charged with conspiracy to distribute the drug PCP.  At trial, Hankeys defense was that he was not the Poo who had engaged in the particular drug transactions that had been monitored by the police.  A witness for the defense testified that there was a second Poo who was associated with the codefendant; and that codefendant corroborated the defendants defense strategy by testifying that the Poo who had supplied the PCP was actually a rap artist named Marcus Prea.

The government sought to admit the testimony of Mark Anderson, as an expert on street gangs, in order to discredit the testimony of the witness and the codefendant.  Anderson testified in an in limine hearing that the defendant, codefendant, and the witness were all members of affiliated street gangs, and that the gangs enforced a strict code of silence as well as violent retribution of any member who testified against another.  After the court conducted voir dire to assess the reliability of Andersons opinion testimony, the court allowed him to testify to the gang membership of Hankey and the co-defendant as well as to the existence of the gangs code of silence.

On appeal, the Ninth Circuit affirmed the use of the code of silence testimony at trial.  The Court heavily relied on the fact that the district court conducted extensive voir dire to assess the reliability of Andersons testimony.  It noted that Anderson had based his testimony as to the code of silence and retaliation on his current and past communications with gang members and on his general experience as a police officer.  It further reasoned that Andersons  testimony was helpful to the jury by providing the jury with an explanation as to why the codefendant might lie on the defendants behalf.  Additionally, the Court noted that the testimony was offered to impeach the credibility of the co-defendant based on bias.

Similarly, in Takahashi the Ninth Circuit affirmed the district courts decision to allow expert testimony regarding gang affiliation.  The defendant was charged with conspiracy to distribute methamphetamine after officers found drugs in the defendants bag during a search of his hotel room.  The defendant moved to suppress evidence that he was affiliated with the Yakuza, a Japanese organized crime group.  In order to prove that he did not knowingly possess the drugs, the defense called a witness named Satake to testify that he had put the methamphetamine in Takahashis bag without Takahashis knowledge.  To counter Satakes testimony, the government introduced expert testimony that Takahashi and the defense witness were members of the Yakuza and that members of this gang would perjure themselves and take the blame for one another rather than tell the truth.

In upholding the introduction of that evidence the Ninth Circuit, citing United States v. Abel, 469 U.S. 45 (1984), stated that evidence of gang affiliation is admissible when it is relevant to a material issue in the case.  It further reasoned that bias is a material issue.  The Court noted similarities of this case to the facts of Abel and further noted that the district court had recognized the need to prevent undue prejudice and tried to minimize it.  It held that a district court does not abuse its discretion in admitting relevant gang affiliation evidence when it takes steps to minimize any undue prejudice that could flow from it.  In that respect the Court mentioned that the district court had offered to give a limiting instruction as well as to elicit a stipulation from the government that it would not attempt to introduce photographs of the defendants tattoos as evidence of gang membership.

Both of those rulings raise an interesting question: would any court permit a defendant to introduce similar expert testimony seeking to show that police testimony might also be suspect based on the generally recognized blue wall of silence and testalying followed by so many members of the police?  We would welcome any thoughts on that topic from our readers.


Maddox v. Elize, 83 F.Supp.2d 113 (D.D.C. 1999) (Judge Sporkin)

In 1996, the defendant in this case, while on parole from a 1981 District of Columbia conviction, was arrested and charged with being a felon in possession of a firearm.  Three times he was tried for that crime.  The first trial ended in a mistrial, with a hung jury, 10 to 1 in favor of acquittal.  The second trial ended in a conviction, but that conviction was quickly reversed by the D.C. Circuit (in a decision reported at 156 F.3d 1280) because of a number of instances of prosecutorial misconduct.  The third trial ended in an acquittal when the jury returned a not guilty verdict in less than an hour, and Judge Sporkin ordered the defendants immediate release from jail where he had been held for more than two years.  That order was never complied with because the D.C. Parole Board issued a detainer, seeking to revoke the defendants parole based on the crime for which the defendant had been acquitted.

Stung by those losses, the U.S. Attorney quickly turned his attention to the parole hearing.  As explained by Judge Sporkin, the defendants parole revocation hearing was prosecuted by the same Assistant United States Attorney (with the approval of three of his superiors) who lost the case before this Court, a somewhat exceptional event since AUSAs are not authorized by law to prosecute such matters, and the AUSA in question had never appeared at a parole revocation hearing in his first 21 years of government service.  (Id., at 114).  Before the hearing even began, the prosecutor had an ex parte meeting with the parole board behind closed doors.  (At a subsequent hearing before the Court the prosecutor claimed that he could not recall what was discussed at the meeting (id., at 117), but when pressed he did not deny that he had possibly discussed the merits of the case with the parole board.)

At the parole hearing the disgruntled prosecutor urged the parole board to ignore the results of the trial that had acquitted the defendant, claiming that the defense witnesses were all in effect perjurers, and that the policemen told the truth, but were victimized by defense counsels tricks.  (Id., at 118).  The Parole Board revoked the defendants parole.  He then sought habeas relief from Judge Sporkin.

In a strongly worded opinion, Judge Sporkin ordered a prompt new parole hearing before independent hearing officers who had played no role in the original hearing; and he directed the prosecutor not to prosecute or attend the new hearing even as a witness.  (Id., at 123).  Citing numerous instances of misconduct by the prosecutor and his superiors, he summarized his conclusions by stating: It is clear to this Court that actual vindictiveness has been established by a preponderance of the evidence.  The testimony establishes that the AUSA was upset about losing this case, which he blames on defense counsel's successful impeachment of government witnesses, and putting on a defense case.  After hearing about the scheduled Parole Board hearing, the AUSA took over the Parole Board's function and prosecuted Maddox a second time.  The only difference in the second prosecution was a lower standard of proof and relaxed evidentiary standards, which allowed the AUSA to get the conviction and sentence he was denied at trial.  The AUSA was not invited to appear as a witness by the Board;  rather he took it upon himself to insinuate himself into the proceeding to see that Maddox would not be freed after his acquittal.  This is clear evidence of prosecutorial vindictiveness. . . .

The AUSA did not act alone in this case.  His actions were approved by three superiors in the United States Attorneys Office. . . . What it did in this case far exceeds the limits of propriety, the Departments ethical standards, and the United States Constitution. (Id., at 121-22).


QUOTE OF THE WEEK  - Federal prosecutors and the need for accountability.

If the prosecutor is obliged to choose his case, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting Investigators to work, to pin some offense on him.  It is in this realm--in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.  From The Federal Prosecutor, a speech by Justice Robert Jackson when he was Attorney General of the United States, delivered at the Second Annual Conference of United States Attorneys, April 1, 1940.


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

31

491

9,928

District Courts

27

340

5,380


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