Federal Criminal Law Newsletter (Visitor's Edition) - March 31, 2003 - Vol. 10, Nos. 12 & 13

Note: The full text of all of the decisions noted below has been incorporated in our on-line data base which is available for subscribers only. Thus, while the names of some of the cases are highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Restraints on Cross Examination of Government Witnesses Held Unduly Restrictive

This is an interesting case involving the reversal of convictions based on the improper admission of tattoo evidence and evidence of prior convictions at a trial for unlawful possession of firearms by a felon. The defendant, Robert Thomas, was initially arrested by the Chicago police, who found a bag containing cocaine in his clothing. Thomas was charged, in a state proceeding, with possession of cocaine. He pled guilty and was sentenced to three years in state prison. After he was released from prison on that conviction, Thomas was arrested on a Federal complaint arising out of the same conduct.

Although no gun had been found on Thomas at the time of his arrest, a loaded revolver was found hidden under some stairs of a building near where he was arrested. For that reason, the Federal charges against Thomas included possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Thomas was also charged with possession of crack cocaine with intent to distribute. A jury found him guilty of the gun charge and of simple possession of crack cocaine, in violation of 21 U.S.C. § 844, a lesser included offense of the crack distribution count.

After he was sentenced to an additional 235 months in federal prison, Thomas appealed, arguing principally that the district court had erred by admitting two pieces of evidence at his trial - a photograph of a tattoo on his arm showing two guns and evidence of two prior state arrests for gun possession. Prior to trial, Thomas had moved to have both pieces of evidence ruled inadmissible under Rule 403 of the Fed.R.Evid. on the grounds that their probative value was substantially outweighed by the danger of unfair prejudice. The district court (Judge Norgle of the N.D.Ill) denied those motions, concluding that both types of evidence were properly admissible under Rule 404 of the Fed.R.Evid.

The Seventh Circuit held that the district court had erred on both of its rulings; and that, in view of the circumstantial nature of much of the evidence against the defendant, the errors were not harmless. Thus, it vacated the convictions and remanded for a new trial.

While the Court acknowledged that tattoo evidence has often been held admissible “to identify the defendant,” it categorically rejected the rationales propounded by both the district court and the Government in this case to justify the use of the challenged tattoo evidence - stating that it was hard to see how the tattoo evidence was admitted “for any purpose other than to establish Thomas’s propensity to possess guns.” (Id., at 631).

The district court found the tattoo evidence relevant “because it showed Thomas’s knowledge about the existence of guns.” (Id.). The Seventh Circuit retorted that “firearms are not a specialized area of knowledge.” In fact, it noted that there are “five times more licensed firearms dealers in this country than new car dealers.” Thus, the Court concluded: “ While Thomas's tattoo may indicate that he knows that guns exist, we think that this revelation is of little, if any, probative value, especially when balanced against the prejudicial effect the photo may have had on the jury.” (Id., at 632).

The district court also reasoned that the tattoo showed that Thomas “had a high opinion of guns.” (Id.). The Seventh Circuit retorted: “We think this only goes to propensity. The government stresses repeatedly that the tattoo was not admitted to show that Thomas is the sort of person who likes guns, but rather that Thomas ‘is proud of his association with the gun charged in the indictment.’ We fail to see any meaningful difference in that distinction.” (Id.).

Finally, the Government argued that the tattoo of two revolvers showed that Thomas was “the kind of person who would have possessed the revolver as charged in the indictment.” (Id.). Once again, the Court retorted: “The tattoo on Thomas's arm just shows that he wanted a gun tattoo. If a tattoo indicates ownership of an object, the mind reels at the legal and evidentiary consequences of the unicorns, dragons, mermaids, and other flights of fancy that decorate people's bodies.” (Id., at 633).

Before trial, Thomas also moved to exclude evidence of his two prior state convictions for gun possession. The district court rejected that motion and, parroting the commonly used words contained in Rule 404(b), it concluded that testimony of two police officers about Thomas’ prior arrests and evidence of Thomas’ guilty pleas in those two cases were admissible under Rule 404(b) “to establish knowledge, intent, opportunity, absence of mistake or accident, or as to motive.” (Id., at 633).

The Seventh Circuit noted that, under Rule 404(b), evidence of other crimes is not admissible to show “propensity evidence” - i.e., “to prove the character of a person in order to show action in conformity therewith.” Thus, it stated that its first duty was to determine “if the prior convictions were admitted to show anything other than a defendant’s propensity to possess weapons. . . . We use Rule 404(b) to exclude evidence ‘which has some probative value but the admission of which would tend as a practical matter to deprive a person with a criminal record of the protection, in future prosecutions, of the government's burden of proving guilt beyond a reasonable doubt’.” (Id., at 634) (Emphasis in original).

Applying those principles, the Court noted that “the two convictions introduced by the government were state proceedings, not federal, and Thomas was not prosecuted under the felon-in-possession provisions of 18 U.S.C. § 922. . . . Therefore, Thomas's motive is of some probative value, but no more than showing by other means that he knew that carrying a concealed weapon is against the law.” (Id.).

The Government next argued that evidence of the prior convictions was “evidence of opportunity, i.e., they show that Thomas was able to acquire firearms, even though, as a convicted felon, he is barred from purchasing them.”

The Court responded: “However, the government is not required to show how Thomas acquired the firearm, just that he had possession of one. . . . Therefore, proving that Thomas had the opportunity to buy a firearm illegally is of no probative value as to Thomas's possession of the revolver the night he was arrested in this case.” (Id.).

Next, the Government argued that the two prior convictions were “evidence of identity, or more specifically, modus operandi, as they describe a pattern of Thomas being met on the street carrying a handgun, dropping it, and then fleeing on foot before being apprehended.”

Once again, the Seventh Circuit rejected the Government’s rationale. It stated: “For modus operandi evidence to be useful, it must ‘bear a singular strong resemblance to the pattern of the offense charged’ with the similarities between the two crimes ‘sufficiently idiosyncratic to permit an inference of pattern for purposes of proof.’ Here, the pattern the government considers specific enough to demonstrate modus operandi is a defendant in possession of contraband, who, upon seeing police at night, drops or hides that contraband, then flees on foot. If a pattern so generic can establish modus operandi, this fairly limited exception to Rule 404(b) would gut the Rule, rendering it useless as a check on character evidence that would otherwise be inadmissible.” (Id., at 635).

Finally, the Government argued that, even if the district court had committed error in admitting evidence of Thomas’ two prior convictions, the error was rendered harmless because the jury had been instructed that those prior convictions “could only be used to determine motive, opportunity, or modus operandi.”

The Court responded: “If the jury used the two convictions as evidence of motive, opportunity, and modus operandi, as instructed, it would find that these three factors all circled back to propensity, which is why we found admission of the convictions unfairly prejudicial in the first place. . . . [Moreover], in its rebuttal argument, the government ignored the instruction and appealed directly to the propensity value of the convictions, asking the jury, "And boy, [the police] got lucky, didn't they, because there happened to be a person who on two prior occasions had access to a gun and had a motive to hide a gun?’.” (Id., at 637).

Thus, the Court concluded: “Though the government attempts to use motive and opportunity as a shield, what the government's use of the prior convictions really does is appeal to Thomas's propensity to carry guns, and nothing more. Therefore, despite the district court's use of a limiting instruction, we are not convinced that the two evidentiary admissions, with their attendant connotations of propensity to possess firearms, had no effect on the jury when it weighed the other circumstantial evidence of possession presented by the government. Accordingly, we find that it was not harmless error to admit either the tattoo or the two prior convictions, and we remand for a new trial.” (Id.).

The defendant in this case, Linda Lee Chandler, and three co-conspirators, were charged with a number of drug and money laundering crimes arising out of their participation in a large drug conspiracy from 1995 to 1998 to distribute in excess of five kilograms of cocaine. The three co-conspirators pled guilty, but Chandler went to trial, where she was convicted of the drug charges but acquitted of the money laundering charges.

Several additional members of the conspiracy cooperated with the Government and gave testimony against Chandler. They included Sly Sylvester, an admitted drug dealer, and Kathleen Yearwood, a supplier of cocaine to the group. At trial, both Sylvester and Yearwood acknowledged that they were testifying pursuant to cooperation agreements with the Government.

Sylvester admitted that, even though he had personally trafficked in at least five kilograms of cocaine on behalf of the conspiracy, the Government had agreed to limit the charges against him to a sale of three ounces of cocaine. He also acknowledged that the sentencing range for three ounces of cocaine was 12-to-18 months; and that he had ultimately received a sentence of only one month of house arrest and a term of probation for his crime. However, when Chandler’s counsel tried to put that sentence in perspective, by asking Sylvester if he was aware of the penalty that he could have received had he been charged with five kilos of cocaine, the Government objected - and the trial court prohibited any discussion of the penalties that might have been applicable to the larger quantity of drugs.

Unlike Sylvester, Yearwood had not been sentenced for the crimes to which she had pled guilty at the time of her testimony against Chandler. However, she admitted that she had pled guilty to trafficking in 15 to 50 kilos of cocaine; that she had agreed to cooperate with the Government; and that she expected to receive a sentence reduction in exchange for her testimony. But when Chandler’s counsel attempted to show the magnitude of the sentence reduction at stake by asking whether Yearwood was aware of the penalties that she was facing for her crimes, the Government again objected to any testimony about the precise penalties that were applicable.

The Government’s objection to any testimony about the penalties otherwise applicable to Sylvester and Yearwood was premised on its concern that the jury might infer from that information the penalties to which Chandler herself could be exposed if she were found guilty; and that information might then induce the jury to engage in jury nullification.

On appeal, Chandler contended that, by barring defense counsel from cross-examining Sylvester and Yearwood about the specific benefits they had received or hoped to receive in exchange for their testimony, the district court deprived her of her Sixth Amendment right of confrontation.

The Court reviewed the law on the scope of the defendant’s Confrontation Clause rights, particularly as established in Delaware v. Van Arsdale, 475 U.S. 673 (1986) and Davis v. Alaska, 415 U.S. 308 (1974); and it emphasized that the circumstances of this case did not require it to resolve whether the Confrontation Clause “entitles a defendant categorically to inquire into the ‘concrete terms’ of a cooperating witness’s agreement with the government, including the specific sentence that witness may have avoided through his cooperation. Rather, we need only decide whether, if the trial court had not prohibited Chandler from cross-examining Sylvester and Kathleen Yearwood with respect to the magnitude of the sentence reduction they believed they had earned, or would earn, through their testimony, the jury might have ‘received a significantly different impression of [their] credibility’.”

After noting that Sylvester could have faced a prison term of at least eight years for the crime to which he pled guilty, and that Yearwood could have faced a prison term of at least twelve years, the majority concluded “we have little difficulty concluding that a reasonable jury could have ‘reached a significantly different impression’ of Sylvester's and Yearwood's credibility had it been apprised of the enormous magnitude of their stake in testifying against Chandler. With respect to Sylvester, the jury learned only that he pled guilty to an offense carrying a sentence of between 12 and 18 months, that he could have been charged with a greater offense, and that he received only one month of house arrest, plus probation. The jury would have had little reason to infer from that information that Sylvester's cooperation with the government might have meant the difference between more than eight years in prison, on the one hand, and the modest sentence he in fact received, on the other. The limited nature of Sylvester's acknowledgment that he had benefitted from his cooperation made that acknowledgment insufficient for a jury to appreciate the strength of his incentive to provide testimony that was satisfactory to the prosecution.

“Similarly, if Yearwood, facing a sentence under the Guidelines of upwards of twelve years, anticipated a benefit equal to even a fraction of Sylvester's proportionate penalty reduction, her mere acknowledgment that she hoped that the government would move for a lesser sentence did not adequately enable a jury to evaluate her motive to cooperate.”

The Court also noted that “[w]hile we appreciate the government's interest in withholding information that potentially could induce a jury to ‘nullify’ the federal law that Chandler was alleged to have violated, we find that such an interest is outweighed by Chandler's constitutional right to confront Sylvester and Yearwood.”

Having concluded that Chandler was deprived of an adequate opportunity to cross-examine the witnesses against her, the majority also concluded that the error was not harmless. “ Because so much depended on the credibility of the cooperating witnesses, additional information about their motives in testifying might have proven decisive. In light of these facts, we lack ‘a sure conviction’ that the District Court's limitations on cross-examination ‘did not prejudice the defendant’; nor can we say that it is ‘”highly probable” that the district court's errors did not contribute to [the] jury's judgment of conviction’." Thus, the Court reversed and remanded for a new trial.

This is one of those cases that encapsulates all that is nasty about Big Government - and its perpetual proliferation of oppressive laws designed to exact maximum retribution from anyone it attacks.

The defendant in this case, Rebecca Santosdedios, was charged in a criminal complaint with one count of theft of government property, in violation of 18 U.S.C. § 641. The charges grew out of the alleged theft of two tubes of Loreal lipstick, with a retail value of $7.28, from the Andrews Air Force Base Main Exchange in Maryland. Shortly after the alleged theft occurred, the manager of the Main Exchange store sent the defendant a letter demanding that she pay the “actual and administrative costs relate (sic) to [the] shoplifting, theft detection, and theft prevention,” all pursuant to the Federal Claims Collection Act of 1966 (31 U.S.C. § 3701, et seq.) (Id., at 415).

The letter estimated that the additional administrative costs totaled $200 (some 25 times the value of the two tubes of lipstick). Santosdedios was told that, if she paid that “indebtedness” within 60 days of the date of the letter, her privileges to shop at the Main Exchange Store would be reinstated; and she would avoid a whole series of unpleasant consequences, including (a) the assessment of additional interest and penalties under 31 U.S.C. § 3717; (b) disclosure of her nefarious activities to a “consumer-reporting agency” under the provisions of 31 U.S.C. § 3711; (c) the initiation of collection and offset proceedings against her salary; and (d) the initiation of action to offset her “debt” against “any disbursement of the Department of Treasury to which [she] may be entitled” including offsets against Federal income tax returns. (Id.)

Sufficiently intimidated by those threats, the defendant paid the $207.28 demanded of her. Then, just to make sure that the defendant fully understood the dishonor she had heaped on the Government by her actions, the United States brought the § 641 criminal charges against her based on her theft of the two tubes of Loreal lipstick.

Represented by the Federal Public Defender’s Office, Santosdedios moved to dismiss the criminal complaint on double jeopardy grounds. Effectively, she argued that payment of the $207.28 pursuant to the provisions of the Federal Claims Collection Act constituted a criminal sanction; and that her subsequent prosecution under 18 U.S.C. § 641 violated the Double Jeopardy Clause, since it constituted multiple punishments for the same conduct.

In a lengthy (and humorless) opinion, Magistrate Judge Day reviewed the law, particularly from the standpoint of a long list of Supreme Court cases which have held that successive civil and criminal proceedings do not constitute a violation of a person’s double jeopardy rights. Applying that principle, the Court concluded that the purpose of the Government’s collection efforts under the Federal Claims Collection Act was simply in the nature of a civil collection proceeding, as opposed to establishing any criminal sanctions; and that, as carried out and implemented, the civil collection program was not so punitive in form or effect as to constitute a criminal penalty. Thus, the Court concluded that Santosdedios was not bing subjected to “multiple punishments” for the same conduct. Accordingly, it dismissed her double jeopardy claims and allowed the Government to extract its pound of flesh by proceeding with its $7.28 criminal prosecution.

Right of Access: In Re Boston Herald, Inc., 321 F.3d 174 (1st Cir. 2003) - Holding that a newspaper has no right of access either under the First Amendment or under common law to review the financial affidavits and supporting papers submitted by a high-profile defendant in a criminal case in support of his claim for eligibility for CJA funds.

Fourth Amendment: U.S. v. Davis, No. 02-1569 (2nd Cir. 04/22/2003) - Holding that videotape surveillance evidence procured through a camera concealed in the jacket of a visitor invited into defendant's residence was not obtained in violation of the Fourth Amendment.

Court	This Week	Year to Date	Since 1996
Courts of Appeal	96	592	17,100
District Courts	61	347	9,285


*Vol. 10, Nos. 12 & 13*	*Covering Cases Published in the Advance Sheets through March 31, 2003*