# Oral argument — United States v. Dickens > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A71353 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** September 2, 2020 ## Text We'll hear the next case on the calendar United States v. Dickens and Cruz Hello I Couldn't tell if I was being called first. Thank you very much. This is Alan Cruickshank appearing for Gary Dickens And then miss and then miss Schneider will will come next Thank You judge A Judge mr. Dickens takes the position that the plain error rule applies to both issues that are raised by him on appeal concerning the first he takes the he requested the court find that the superseding indictment that he was Convicted to count one of the superseding indictment that he was convicted under was impermissibly duplicitous And the based on the evidence at trial there was no particular instance of either he Mr. Cruz is co-defendant or any of the other co-defendant Cooperative witnesses ever being in possession of a quantity of cocaine base in excess of 28 grams He we'd assert that the Situation is one in which The court should have or a motion should have been directed to The superseding indictment Concerning the aggregate weight argument that was being made by the government in their case. There was no Evidence at trial that would have suggested that mr. Dickens himself was personally Responsible for an aggregate weight or a weight in X or an individual weight in excess of 28 grams and The government's argument to that end Was an effort to push mr. Dickens into a sentencing range that would Impose a higher sentencing category concerning mr. Dickens it's his position that that clearly prejudiced him and he would ask that the court either either reverse the case or remit the case for further proceedings on the second argument Judge hey, I will begin the questioning. Yes judge What's your second argument? Judge on the second argument the government a government seems to take the position that the error Argued in that situation is weighed and it is one where the jury verdict form when it was compiled contained an inherent defect that Defect wasn't recognized by the court wasn't recognized by the prosecutor wasn't recognized by defense counsel at the time The fact that it wasn't recognized does not mean that the error wasn't there and the error was one in that Question one be concerning. Mr. Dickens in question To be concerning. Mr. Cruz Improperly suggested that the controlled substance that that the jury had to consider Must be cocaine base. So was there ever any question any real question? cocaine base was Judge there was there were There was testimony as by various witnesses as to the presence of cocaine base in their possession But there was also evidence throughout the course of the trial of other drugs being in in various possession of various of these Co-defendants and cooperative witnesses and that suggests that there were other drugs that the Suggests in the context of a clean error analysis, which you can see that applied that makes it even more difficult for us to Identify error seems to me So is there more is there something more than suggest there there were there was Testimony that You Other of the co-witnesses or I'm sorry, the cooperative witnesses were in possession consuming and using drugs for their own purposes, which Might not have been Drugs that could be attributed to the conspiracy that was being alleged against. Mr. Dickens and mr. Cruz Thank you. Just got Judge Park Yeah, just quickly following up on that counsel, even if there were other drugs at issue What's the confusion that's created by the in the jury verdict form it just seems to me to be a compound question and if if If either part is false, then the answer is no, but I don't see how that's confusing I think what's confusing judge is that it's a quite I think it is a question for the jury as to whether or not there is cocaine base. That is the foundation of the conspiracy and when the question number one asks if there was a Conspiracy involving the controlled substance and then question number two Suggests that the controlled substance was cocaine base I think that takes away from the jury's role to decide whether or not cocaine base Was in fact part of the conspiracy Because the decision has been made for them or suggested to them by the trial court Okay. Thank you This is this is judge Katzmann and It's judge my my question is is this on your argument about impermissible Duplicitous this Why doesn't the argument founder on the Essential ground that a conspiracy as charged in count one is a separate and distinct offense From the various substantive acts of position possession with intent to distribute Judge I take your point concerning that argument and The Defendant's position would be one to the effect that he is asserting that He was never in direct possession of any of these Never found to be in direct possession of any of the alleged cocaine base and that there is no individual instance of him being in possession of more than 28 grams and That when there is no certainty that the aggregate weight Claimed to have been possessed by each one of the individual Co Conspirators or Cooperative witnesses can be directly attributed to him. He shouldn't be there should Not be a finding that he he can be attributed with an aggregate weight in excess of 28 grams Thank you. Thank you We will now hear from Miss Schneider Thank you Tina Schneider, I represent Richard Cruz who was convicted of the drug conspiracy involving 28 grams or more of crack I'm happy to waive the two minutes of Protected time if the court would like to ask me questions Before then I'd like to focus as well on the issue of the jury verdict form Specifically that my client was denied his right to have the jury determined drug type And I'd like to point out from the get-go that the government in Essence conceives that this was error It says it would have been preferable for the jury verdict form to first require the jury to identify the controlled substance involved but it's not a question of preference The defendant has a fifth and a sixth amendment right to have the jury not the judge Determine the drug type beyond a reasonable doubt Because that fact increases the penalty for the crime The government goes on say well, it's no big deal because crack was the only drug alleged to have been involved But as mr. Kirk showing pointed out there was evidence of other drugs introduced as trials and I'd like to point out it wasn't just evidence of Witnesses or co-conspirators using other drugs. It was the dealing and trading of other drugs There was evidence of that at trial. For example, ms. Rosario Testified about giving my client to percocet Tammy Phillips was paid with cocaine She traded percocets for cocaine Carrie Polisky Said that mr. Dickens sold her both crack and cocaine and she Bought cocaine in bulk and sold it. So it's not just a Theoretical possibility here there was evidence that That other drugs were involved in this conspiracy and for the court to take that away From the jury was plain error Judge Lai a Spider. Thank you very much. Just captain Would you address whether or not the government's Closing arguments Mention the these other drugs as being part of the object of the conspiracy or was the government summation focused entirely on cocaine base or crack cocaine The government as I recall the government's closing argument was focused on crack cocaine however, the argument of My client in closing did deal with those other drugs The my client argued in closing that about Tammy Phillips dealing percocet about Carrie Polisky's Boyfriend distributing crack and cocaine and Specifically made the point that cocaine is not cracked So although the government was focused on crack cocaine. It was controverted at trial that that was The drug involved in the conspiracies Thank you, okay The government also argued and judge Park your earlier question alluded to this If the jury didn't believe crack was involved they could have just answered the conflated questions. No The problem with that is that saying someone Conspired to distribute less than 28 grams of crack is a profoundly different thing than saying they did not conspire to distribute crack at all and The jury was not given that option of saying No, it wasn't crack. The jury clearly found that my client was guilty of a drug conspiracy But the next step What was the drug involved in that conspiracy was taken away from them and as a result Mr. Cruz is entitled to be resent under the default provision of the statute that has no mandatory minimum sentence This is judge Park, so if the form had said put like a you know in brackets number one before cocaine base and then number two before 28 grams would that have addressed your Concern here. I I'm not sure. I understand is your question about First asking the jury what drug was involved Yeah, it seems like your complaint is that the the question conflated two issues And I guess my hypothetical is what if it had just identified that there were two issues by saying one and two That would have been fine. If the jury verdict form had said if you find him guilty of the drug conspiracy then Tell me what drug was involved in the drug conspiracy and The quantity of that drug was in more than 28 grams or less than 28 grams That would have been fine because then the jury would have been just well I mean, I understand you would have liked a different The form to say something different but I guess my question is what if it had just as written added Number one and number two in front of the two parts of the question To break out that it was compound would that have been enough? Number two, I guess I I'm not understanding your question. I'm sorry If it had said Number one was crack cocaine involved and number two Is that what you mean? I'm sorry. I just I Not understanding what you're asking It's it's a hypothetical. So Let it go. I was just curious. What sort of what does the trying to push the Where you know what your specific complaint was, but that's fine well, um, the complaint is that the the question about drug what type of drug was just skipped over if the Verdict form had said what's the type of drug or even if it said? Was crack cocaine? You know one of the drugs involved We'd be in a different position here But thank you, yeah This is a judge Katzmann and I just have really essentially one question Miss Schneider My question is Really two questions related what What particular challenges could you have mounted to the use of your prior conviction? Given that as I understand that you're and correct me if I'm wrong your preclude precluded under Section 851 e from challenging its full validity since it occurred And five years ago And you didn't object To the description of that conviction or the facts underlying it in the pre-sentence report Yes, so We had no Incentive to object to anything in the pre-sentence report because mr. Cruz's sentence was driven entirely by the Fact that there was a mandatory minimum Here. So the fact that he didn't object or challenge the prior in the PSR is really not compelling here and you're correct that after a certain period of time you can't challenge the Validity of a prior conviction you can however challenge any fact In That prior conviction so you could say If there knows I'm sorry, go ahead finish your sentence I was just going to say if it doesn't fit within the definition you could Challenge it on that basis if it's not really you you could challenge it on that basis The problem here is because the court didn't ask the questions. It was required to by statute We don't know what my client would have alleged Well, but that then leads to the question if there were no specific challenges that you were prohibited from raising How are you prejudiced by the district courts not following the procedures in section 851? Well, we don't know whether there were specific things. Mr. Cruz could have challenged because This Colloquy was never conducted. And so he never had the opportunity to say to the court Oh, I do challenge that prior conviction and I want to put the government to its proof and he never had the opportunity to consult with his lawyer below and and discuss what the parameters were for challenging a prior under 851 and So the record necessarily doesn't include any of that and It should be sent back But this this is just lawyer that that doesn't answer the prejudice question that judge Katzmanger So we don't know is not a it's not a it's not a it is Prejudicial because that's not those are two very different answers That's correct, but here's the problem is that because the judge didn't engage in the colloquy The record necessarily doesn't have anything about this So we can't show prejudice But in that case if you said well, you need to show prejudice in this circumstance Then there would be absolutely no remedy when a judge failed to engage in the statutorily required Colloquy about the prior conviction use of the prior conviction Thank you We will now hear from Mr. Silver Thank You your honors With respect to the verdict form I do maintain the government maintains that the objection To it is waived This is not a case where the court Used the verdict form and nobody raised an objection which would Result in a plain error analysis. This is a situation where the court had a conference with counsel both counsel and government counsel and part of that conference was directed to formulating this verdict form particularly with respect to The issue that's being challenged when a problem with it with its formulation was raised by government counsel and both counsel participated in the new formulation of the verdict form as well as indicating that Neither had an objection to it as changed So we do think it's waived to the extent the court will apply plain error analysis to To any defect that might see in the verdict form I think it's it's it's telling first of all that Something as basic as what drug was involved in the conspiracy that question didn't occur to anybody in the formulation of the verdict form because There really was only one drug charged in this conspiracy Also, the defendants don't challenge on appeal the sufficiency of the evidence against them so no one is saying that the evidence didn't establish that more than 28 grams of Cocaine base was involved in the conspiracy To that extent if there were other drugs involved in the conspiracy, which is a point the government does not concede It would not have affected the sentence that either of these defendants faced so they don't challenge the jury's Answer to the first question. Yes, they were involved in a drug conspiracy and they don't challenge on appeal here The fact that the proof established they were involved with more than 28 grams of crack cocaine That's why a I have no questions. Just happen. Thank you Judge Park Thank you, just just briefly Your adversaries talked about evidence of other drugs that was presented at trial and I was just wondering if you could address that There was evidence of other drugs at trial It's not clear to me I and I I don't maintain that those drugs were part of this conspiracy Particularly because in this conspiracy Cruz was the source of supply and all he supplied was cocaine base No powder cocaine Whether people were using or distributing percocets has nothing to do with the conspiracy That was charged here. So yes, there was evidence of other drugs. I do Believe there's also evidence that cocaine powder cocaine Was given by Cruz to at least one other individual so a distribution but that Appears not to be a part of the conspiracy that was charged here. He could not have gotten that Powder cocaine at least as far as the evidence is concerned to trial from Cruz Because all the Cruz provided was cocaine base. So yes, I I don't contest that there's evidence of other drugs involved most of it is You know distributed by people other than Cruz. Excuse me other than Dickens, but I do believe Dickens At least on one occasion provided powder cocaine maybe two or three occasions, so No argument there Okay, thank you, yeah, but as I say It's not it was not prejudicial to the defendants on the circumstances of this case because they don't concede They don't contest that they were involved in a drug conspiracy and they don't contest that that conspiracy involved at least 28 grams of crack cocaine with respect to the discussion about Challenging the felony conviction relied upon to enhance Cruz's sentence Obviously we concede the district court did not follow the procedure it should have but I think it's a matter of bread-and-butter practice routine in a multitude of criminal prosecutions where prior conviction convictions are challenged whether they are Used to enhance a statutory minimum or not There was nothing about the procedures that occurred in the district court that prevented Cruz from raising an objection if he had one and In that respect I disagree with miss Schneider about it's not compelling that Cruz raised no objection to the pre-sentence report with respect to the prior conviction I would also analogize to challenges to plea colloquies where a judge doesn't ask a question necessitated by rule 11 and Nonetheless the defendant still has to show Prejudice and the prejudice in that context is I would have Not entered my guilty plea and this is similar and the mere fact that the judge didn't ask the question Did nothing to preclude the defendant from raising an objection and certainly the fact that no objection is raised at this time to the prior conviction shows that The Cruz has not established that prejudice under plain error review Unless the court has any other questions, I'm happy to rely on my papers that judge cast and just one one question the hypothetical question if we Were to differ with you as to your view that the defendants waived their challenge to the jury a verdict form Would you still have grounds to affirm the district court on this issue? Well, I would say that if if it hasn't been waived then review is for plain error and the defendants concede Review is for plain error Under the facts of this case the if there was error, which we don't concede But if there was error, it was not plain because the only drug alleged to have been involved in the conspiracy was cocaine base and There was no prejudice to the defendants under plain error review because they they concede that the jury correctly determined they were involved in a drug conspiracy and They're only arguing about which drug which is a sentencing matter. They don't challenge the evidence Establishing their involvement in more than 28 grams of crack cocaine, which drove the sentence here Even if there were other drugs involved it would not have affected the sentence and finally In light of the way, the case was charged and everyone approached it The defendants can't establish that this affects the fairness integrity or public relation public reputation of the proceedings below so they Fall woefully short of establishing plain error Thank you, thank Mr. Silver, mr. Cui shank who shank and miss Schneider The court will reserve decision --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A71353. Public record. Not legal advice.