Evidence Practical Project Fall 2013

LAW 6330 (4 credits)
Section 3148
Professor Pedro A. Malavet
Fall 2013

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 ACK and MAN will write for the defendant Kenny Paul, and those whose last names fall between MAR and ZEI 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 2013 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 FRIDAY, November 8, 2013. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning course page using the Motion in Limine-Practical Project assignment created for that purpose.

Fact-Pattern:
The United States v. Kenny Paul

(Before the United States District Court for the Northern District of Florida—Gainesville Division; Stephan P. Mickle, Senior U.S. District Judge Presiding)

Defendant, Kenny Paul, faces trial for possessing crack cocaine with the intent to distribute it.

On the night of Paul’s arrest, two anonymous 911 calls made by the same individual alerted the police to possible criminal activity. The following colloquy took place, which started at 12:15 A.M.

OPERATOR: 911, where is your emergency? Sir, you’re phone is cutting out. You called about what?
       CALLER: All of this drug activity over off Sweetgum?
OPERATOR: What address on Sweetgum?
       CALLER: I’m not go—Why would I tell you? I’m trying to be anonymous and get y’all to get these drug dealers from over here.
OPERATOR: Sir, I’m not giving your name out so give me the information so that I can send the officers to the right place, where you’re at.
       CALLER: It’s a red PT Cruiser. This guy is selling—
OPERATOR: Sir, give me the address.
       CALLER: 2505 Sweetgum. All this traffic.
OPERATOR: Did you see his license plate number?
       CALLER: It’s—uh—I know it’s a red PT Cruiser. I—I can only see the driver’s side of the car, I don’t want to go outside, I don’t want him to know that—
OPERATOR: Okay, do you know his name?
       CALLER: Kenny Paul.
OPERATOR: Do you know what kind of drugs he’s selling?
       CALLER: He’s selling crack.
OPERATOR: Which apartment is he in right now?
       CALLER: He don’t even live out here. He’s just sitting on the steps. He’s running in and out, in and out. People coming—
OPERATOR: What’s he wearing tonight?
       CALLER: Ma’am?
OPERATOR: What’s he wearing tonight?
       CALLER: He’s got some green shorts on and a white t-shirt. The car is sitting off of—uh—11th, yeah that’s 11th, and—uh—Sweetgum.

On the second 911, the following colloquy took place, which began at 12:24 A.M.
 
OPERATOR: Phone line 911, where is your emergency?
       CALLER: Hey, I was the one just called about the drug deal that’s going down over here on Sweetgum.
OPERATOR: Yes, sir.
       CALLER: Ok. He’s got the dope in the side door panel.
OPERATOR: The dope’s in the side door panel?
       CALLER: Yeah. He—the—
OPERATOR: The right or the left side?
       CALLER: Uh—of the driver’s side—And—but I want them to do it when they leave here ‘cause he’s for sure got it in the car ‘cause he didn’t know I was the one called ‘cause I the only one seen it.
OPERATOR: Okay, how did you see it sir?
       CALLER: I seen him put it in there. I can see it right now.
OPERATOR: Okay, I’m adding the information to the call. Thank you, sir.
       CALLER: Okay. But would you tell them not to do it here? Cause I don't want him to think that I was the one told (inaudible) pulls off going down the street.
OPERATOR: Ok.
       CALLER: Thank you.
OPERATOR: You’re welcome.

The two responding police officers are expected to testify that on the night in question they received a call via radio dispatcher requesting that they respond to the Monterrey Apartments at 2505 Sweetgum in order to look for “a red PT Cruiser in the parking lot with a black male occupying the PT Cruiser who was in the apartment selling narcotics.” When they arrived at the address given by the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied, and had its driver’s side window down. Because the dispatcher had informed the officers that the suspect was keeping some of the narcotics inside a compartment on the driver’s side of the vehicle, they looked from outside the vehicle and observed what appeared to be three rocks of crack cocaine in plain view.

The officers will further testify that a man then approached them, identified himself as the 911 caller, and provided them with some information about the suspect and the PT Cruiser. Believing that the suspect would return to the unoccupied car, the officers devised a plan whereby one would hide behind a nearby fence and the other would drive the patrol unit around the corner. About five minutes later, a black male, dressed in dark-colored shorts and a white t-shirt, exited the apartment complex and entered the PT Cruiser on the driver’s side; a female entered the vehicle on the passenger’s side. The officer behind the fence alerted the officer in the patrol unit via a call on his cell phone. The officer in the patrol unit returned to the apartment parking lot, activated his emergency lights, and followed the PT Cruiser. Once the officer activated his emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60 to 65 miles per hour before failing to negotiate a turn and ending up in a vacant lot. As he was running up to the vehicle, the officer saw the driver’s side door open and the driver stick his arm out and throw something underneath the vehicle. The driver identified himself as Kenny Paul and the officer took him into custody. After the officer handcuffed Paul, he discovered what turned out to be a clear bag of powder cocaine on the driver’s side floorboard. The officer also retrieved three rocks of crack cocaine from the same place earlier observed, and once the car was moved by a wrecker, he discovered a clear bag of crack cocaine on the ground where the car previously stood. The officers will testify that, based on their training and experience, the bag of crack cocaine recovered from underneath the vehicle was a “large amount” and was consistent with distribution purposes.

At trial, a forensic scientist will testify that the substances found in and underneath the car were cocaine base, commonly known as “crack” (0.63 grams and 19.57 grams) and cocaine hydrochloride, commonly known as “cocaine powder” or simply “cocaine” (27.66 grams).

Paul was charged by indictment with one count of possession with intent to distribute five grams or more but less than 50 grams of a mixture or substance containing a detectable amount of cocaine base under 21 U.S.C. § 841(a)(1). The Government subsequently filed a notice and information of prior convictions for purposes of increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851.

Presiding Judge Mickle has ordered the defense and prosecution to file Motions in Limine addressing the admissibility of the 9-1-1 calls.

Paul claims that the district court would err by admitting the 911 recordings into evidence because they contain hearsay that does not fall under any of the exceptions to the rule against hearsay. Paul alternatively contends that even if the caller’s statements were admissible over a hearsay objection, the district court would err by admitting the 911 recordings because the recordings contain testimonial hearsay that violate his Sixth Amendment right to be confronted with the witnesses against him. He asserts that the recordings are unfairly prejudicial and extremely harmful to his defense.

The prosecution is expected to argue that the recordings are admissible under the Federal Rules of Evidence and that their admission would not violate defendant's Confrontation rights.

Statute and Pattern Jury Instruction

21 USC § 841(a)
. . . it shall be unlawful for any person knowingly or intentionally
(1) to manufacture, distribute, or dispense, or possess with the 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.

Controlled Substances
For purposes of this statute both Cocaine (“Cocaine Hydrocloride”) and Cocaine Base (“Crack”) are “controlled substances”. “Cocaine base,” for the purposes of this statute, means “crack.” “Crack” is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride (“cocaine”) and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.

Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)
Equivalence Guide for Sentencing (2010)
1 gm of Cocaine = 200 gm of marihuana
1 gm Cocaine Base (‘Crack’) = 20 kg of marihuana

Pattern Jury Instruction
Controlled Substances –Possession with Intent to Distribute 21 U.S.C. §841(a)(1)
It’s a Federal crime for anyone to possess a controlled substance with intent to distribute it.
[substance] is a “controlled substance.”
The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly possessed [substance];
(2) the Defendant intended to distribute the [substance]; and
(3) the weight of the [substance] Defendant possessed was more than [threshold].
To “intend to distribute” is to plan to deliver possession of a controlled substance to someone else, even if nothing of value is exchanged.
[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.]

• Facts taken, and modified to fit examination purposes, from UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNEDY PAUL POLIDORE, Defendant-Appellant, 690 F.3d 705; 2012 U.S. App. LEXIS 16900 (5th Cir. Court of Appeals) cert. denied 2013 LEXIS 2364 (U.S., Mar. 18, 2013).