Evidence Practical Project Fall 2011

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2011

Instructions

As I announced in my Course Description and Rules, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ANT and MAR will write for the defendant Roberto Perez-Berrios, and those whose last names fall between MAT and WIG will write for the prosecution.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2011 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the U.S. government, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual (http://www.pdsdc.org/LegalCommunity/TrainingCPI.aspx). This downloadable PDF provides lots of useful information including sample cross-examinations, and forms for many types of motions including motions to suppress and motions in limine.

DUE DATE: Projects are due on or before 5:00 p.m. on THURSDAY, November 10, 2011. You may turn them in to me during class, or to my secretary, Ms. Elizabeth Mosier in the LL.M. in Comparative Law Program office in Room 319 of Holland Hall.

Fact-Pattern: United States v. Perez-Berrios

(Before the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge).

Roberto Perez-Berrios faces trial by a jury on charges of conspiracy to possess with intent to distribute at least 100 kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West 1999 & Supp. 2009) (Count One), and possession with intent to distribute of at least 100 kilograms of marijuana, 21 U.S.C.A. § 841(a), (b)(1)(B), 18 U.S.C. § 18 (2006). The presiding judge Whitney has asked both sides to submit motions in limine regarding the admissibility of certain statements as detailed below.

The government expects to prove at trial that in January 2007 a tractor-trailer truck was stopped in Mississippi because it lacked a visible Department of Transportation number. Inspection revealed that it contained rotting fruit and $1.2 million in cash in several suitcases. The driver, Jose Rios, cooperated and made two recorded telephone calls to his boss, Roberto Perez-Berrios, who was listed on documents in the truck’s cab as the owner of the trucking company. Perez-Berrios agreed to send money so that Rios could return to Texas and said he did not know “how much” was in the truck, but that Rios should get a receipt for it. Rios later recorded two conversations with co-defendant Juan Gonzalez in Texas, during which they discussed preparations for two more trips using a blue truck and transporting 2000 “pesos” to Charlotte, North Carolina. One of the Drug Enforcement Administration (DEA) agents who conducted the investigation in Texas testified that the defendants used the term “pesos” to mean “pounds.”

On March 19, 2007, Rios recorded both audio and video tapes of a truck being loaded at a warehouse leased by Perez-Berrios. The lights in the warehouse were dimmed while packages were placed in the truck, then the lights were turned back on and a forklift was used to fill the truck with pallets of produce. Co-defendants Roberto Perez-Berrios, Gonzalez, Edgar Perez-Berrios, and David Arroyo were present. Perez-Berrios operated the forklift. Federal agents were also able to witness the loading depicted on the videotape and to testify at trial accordingly, but they could not hear what was being said. The audio and video tapes, however, clearly recorded the voices of Rios and all the co-defendants present at the warehouse and the investigating federal agents could identify the voices on the tapes and the persons depicted on the video based on their observations of the drug operation.

After Rios drove the truck away from the warehouse, federal agents kept the truck under surveillance and unloaded produce and more than 2000 pounds of marijuana from it some distance away. The marijuana was flown separately to North Carolina, while Rios drove the truck to Charlotte. When Rios reached Charlotte, the agents reloaded the marijuana onto the truck. Rios called Perez-Berrios on March 22, 2007, and was told to go to a warehouse leased by co-defendant Peter Smith. After the marijuana was unloaded by Smith, Juan Ruiz-Melendez, and others, they were arrested, as was co-defendant Yusuf Galib, who arrived to buy marijuana. Unaware of the arrests, Gonzalez and Arroyo sent a moneygram to Rios the same day.

In April and in late May 2007, Rios drove loads of marijuana to Indianapolis, Indiana, and to Durham, North Carolina, as directed by Perez-Berrios and Gonzalez. These trips were also monitored by federal agents. Roberto Perez-Berrios and Gonzalez were arrested in June 2007. Edgar Perez-Berrios became a fugitive. Roberto Perez-Berrios, Gonzalez, and Galib have chosen to face trial. Arroyo, Smith, Ruiz-Melendez, and two other co-defendants have entered guilty pleas; however, only Ruiz-Melendez will testify at the trial. Rios was expected to testify, but has disappeared.

Before trial, the government moves in limine to admit tape recordings of the monitored conversations between Rios and defendants Perez-Berrios and Gonzalez, as well as the audio and video recording of the truck loading taken by Rios on March 19, 2007. Perez-Berrios and Gonzalez oppose the admission of this evidence arguing that the statements are hearsay and not properly admissible under the Federal Rules of Evidence and that their admission would also violate their rights under the Confrontation Clause of the Sixth Amendment. The Government argues that admission of the statements would not violate the Hearsay Doctrine or the Confrontation Clause because the recorded conversations were among co-conspirators, and the conspirators’ statements were therefore admissible against each declarant-defendant and against the declarant’s co-conspirators. The Government further argues that Rios’ statements are not hearsay because they were not offered for “the truth of the matter asserted,” but to provide a context for the defendants’ statements. The Government thus requests a limiting instruction, to which in order to ensure that jury would use all admitted statements properly.

In support of a finding that a conspiracy existed, the Government offers the following profer. While Rios initially identified Perez-Berrios as his boss, he apparently received instructions from both Perez-Berrios and Gonzalez relating to the actual delivery of marijuana on various trips he made. However, Perez-Berrios ostensibly owned the trucking company for which Rios was driving when he was initially stopped in Mississippi with $1.2 million in his truck. Perez-Berrios leased the warehouse in Texas where the 2000 pounds of marijuana was loaded for shipment to Charlotte. Perez-Berrios operated the forklift to load produce onto the truck, which the defense argues shows that he was a worker, not a leader. The Government also offers the audio recordings and video for review by the Court in order to establish admissibility.

Perez-Berrios contends that the Confrontation Clause, which protects a criminal defendant’s right to be confronted with the witnesses against him,” would be violated by the admission of Rios’ statements and co-defendant Gonzalez’s statements. He further argues that admission of the statements by Rios and other indicted co-defendants in the audio and video recording of the truck loading on March 19, 2007, should likewise not be admitted on confrontation grounds. As noted already, Rios will not appear at trial and trial co-defendant Gonzalez will not take the witness stand. Of the other indicted members of the conspiracy, only Ruiz-Melendez will take the witness stand during this trial. Perez-Berrios further contests the admission of his recorded conversations with Rios on the ground that Rios was not present for cross-examination. Perez-Berrios also relies on Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its progeny, in support of his Confrontation Clause arguments.

Applicable statutes and jury instruction:

21 USCS § 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

18 USCS § 18. Organization defined

As used in this title, the term “organization” means a person other than an individual.

21 USCS § 841. Prohibited acts

(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

(b) Penalties. Except as otherwise provided in section 409, 418, 419, or 420 [21 USCS § 849, 859, 860, or 861], any person who violates subsection (a) ofthis section shall be sentenced as follows:

(1) (A) In the case of a violation of subsection (a) of this section involving--

***

(1) (B) In the case of a violation of subsection (a) of this section involving--

(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin;

(ii) 500 grams or more of a mixture or substance containing a detectable amount of--

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);

(iii) 28 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;

(iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 40 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- [1-(2-phenylethyl)-4-piperidinyl] propanamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N- [1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight; or

(viii) 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $ 5,000,000 if the defendant is an individual or $ 25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18, United States Code, or $ 8,000,000 if the defendant is an individual or $ 50,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of title 18, any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.

The Standard Federal Jury Instruction on the Conspiracy charge reads as follows:

21 U.S.C. § 846 and/or 21 U.S.C. § 963

It’s a separate Federal crime for anyone to conspire to knowingly possess with intent to distribute or import [substance].

[Title 21 United States Code Section 841(a)(1) makes it a crime for anyone to knowingly possess [substance] with intent to distribute it.]

[Title 21 United States Code Section 952 makes it a crime for anyone to knowingly import [substance] into the United States from some place outside the United States.]

A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In other words, it is a kind of partnership for criminal purposes. Every member of the conspiracy becomes the agent or partner of every other member.

The Government does not have to prove that all of the people named in the indictment were members of the plan, or that those who were members made any kind of formal agreement. The heart of a conspiracy is the making of the unlawful plan itself, so the Government does not have to prove that the conspirators succeeded in carrying out the plan.

The Defendant can be found guilty only if all the following facts are proved beyond a reasonable doubt:

(1) two or more people in some way agreed to try to accomplish a shared and unlawful plan to possess or import [substance];

(2) the Defendant, knew the unlawful purpose of the plan and willfully joined in it; and

the object of the unlawful plan was to [possess with the intent to distribute] [import] more than [threshold] of [substance].

A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities of all the other alleged conspirators.

If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that’s sufficient for you to find the Defendant guilty.

But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy. Also a person who doesn't know about a conspiracy but happens to act in a way that advances some purpose of one doesn't automatically become a conspirator.

[The Defendant[s] [is] [are] charged with [distributing] [possessing and intending to distribute] at least [threshold] of [substance]. But you may find [the] [any] Defendant guilty of the crime even if the amount of the controlled substance[s] for which [he] [she] should be held responsible is less than [threshold]. So if you find [the] [any] Defendant guilty, you must also unanimously agree on the weight of [substance] the Defendant possessed and specify the amount on the verdict form.]

Case: UNITED STATES v. ORTIZ-BARRAZA, 365 Fed. Appx. 526; 2010 U.S. App. LEXIS 3302 (4th Cir. 2010). I modified the opinion for project purposes, but the facts came from the text of the opinion.