Petition for Writ of Certiorari — Lambert v. United States

Supreme Court, U.S.

—- . hk eS

991208 JAN 18 2000:

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

DEMETRIUS LAMBERT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

FREDERICK F. COHN

601 S. LaSalle Street

Suite 700

Chicago, IL 60605

(312) 641-0692

Attorney for Petitioner

i

QUESTIONS PRESENTED

1. DOES A DISTRICT COURT, AFTER

DELIBERATIONS HAVE COMMENCED AND AFTER

ALTERNATE JURORS HAVE BEEN DISMISSED,

VIOLATE DUE PROCESS AND DEFENDANT'S

RIGHT TO BE PRESENT, WHEN THE COURT

DISCHARGES A JUROR ON THE BASIS OF EX

PARTE, UNSWORN, UNRECORDED/UNREPORTED

PHONE CONVERSATIONS WITH THE JUROR -

WITH CONSENT ONLY FOR THE COURT TO PHONE

THE JUROR TO DETERMINE THE PROBLEM, AND

WITHOUT CONSENT FOR THE CONTACT TO BE

UNRECORDED/UNREPORTED, AND WITHOUT

CONSENT FOR THE COURT TO ACT WITHOUT

FURTHER INPUT FROM DEFENDANT OR HIS

COUNSEL - THEREBY FORCING DEFENDANT TO

HAVE HIS FATE DECIDED BY 11 JURORS?

2. WHERE OTHER-CRIMES "BAD MAN"

EVIDENCE WAS SUBSTANTIAL AND VERY

PREJUDICIAL, WAS DEFENDANT DENIED A FAIR

TRIAL, IN VIOLATION OF 5th AMENDMENT DUE

ii

PROCESS, BECAUSE THE JURY WAS NEVER

INSTRUCTED ON THE LIMITED USE OF THIS

EVIDENCE - NEITHER AFTER FINAL

ARGUMENTS, NOR WHEN THE EVIDENCE WAS

ADMITTED - THEREBY PERMITTING THE JURY

TO CONSIDER THIS OTHER-CRIMES, BAD MAN

EVIDENCE WITHOUT ANY JUDICIAL GUIDANCE?

iii

PARTIES INVOLVED

Petitioner, Demetrius Lambert, was

the defendant in the United States

District Court for the Northern District

of Illinois, Eastern Division, and the

appellant in the United States Court of

Appeals for the Seventh Circuit.

Respondent, United States of America,

was the plaintiff in the United States

District Court for the Northern District

of Illinois, Eastern Division, and the

appellee in the United States Court of

Appeals for the Seventh Circuit.

iv

TABLE OF CONTENTS

Page

Questions Presented........2eeeccees i

Parties INVOLVOG.ccccccccccccscess iii

TADLS GE COMCENEH. oscccccsosvcecess iv

Table of Cited Authorities......... vi

Prayer FOP COrCiGrOl sd sc.n ceséewevevns 1

Opinion and Order Below............. 1

Jurisdictional Statement............ 2

Constitutional Provisions........... 2

Statement of the Case... .cccccccee 2

STATEMENT OCF FACTH. cscccccevesevvsess 3

Reasons for Granting Certiorari:... 11

1. A DISTRICT COURT, AFTER

DELIBERATIONS HAVE COMMENCED AND AFTER

ALTERNATE JURORS HAVE BEEN DISMISSED,

VIOLATES DUE PROCESS AND DEFENDANT'S

RIGHT TO BE PRESENT, WHEN THE COURT

DISCHARGES A JUROR ON THE BASIS OF EX

PARTE, UNSWORN, UNRECORDED/ UNREPORTED

PHONE CONVERSATIONS WITH THE JUROR -

WITH CONSENT ONLY FOR THE COURT TO PHONE

THE JUROR TO DETERMINE THE PROBLEM, AND

WITHOUT CONSENT FOR THE CONTACT TO BE

UNRECORDED/UNREPORTED, AND WITHOUT

CONSENT FOR THE COURT TO ACT WITHOUT

FURTHER INPUT FROM DEFENDANT OR HIS

COUNSEL ~ THEREBY FORCING DEFENDANT TO

HAVE HIS FATE DECIDED BY 11 JURORS. 11

Vv

2. WHERE OTHER-CRIMES “BAD MAN"

EVIDENCE WAS SUBSTANTIAL AND VERY

PREJUDICIAL, DEFENDANT WAS DENIED A FAIR

TRIAL, IN VIOLATION OF 5th AMENDMENT DUE

PROCESS, BECAUSE THE JURY WAS NEVER

INSTRUCTED ON THE LIMITED USE OF THIS

EVIDENCE ~ NEITHER AFTER FINAL

ARGUMENTS, NOR WHEN THE EVIDENCE WAS

ADMITTED - THEREBY PERMITTING THE JURY

TO CONSIDER THIS OTHER-CRIMES, BAD MAN

EVIDENCE WITHOUT ANY JUDICIAL

Genes 8 6b 6s 6 eee OS POP enn eae 20

CN i ka io 6 Kid aS owe 6 bb Oke 27

Appendix:

App. A - Opinion of the United States

Court of Appeals for the Seventh

Circuit, No. 97-2834, dated September 8,

>> Pewee ee ae eee ee ee coccccce eeeee App. 1

App. B - Order of the United States

Court of Appeals for the Seventh

Circuit, No. 97-2834, dated October 20,

1999, denying rehearing and rehearing en

DONC. ccs tives es eves Cooebooveeses App. 29

App. C - Excerpts from Record

(Bei. 2RGGISOR 5 65 oo os k rea es App. 31

vi

TABLE OF CITED AUTHORITIES

Cases

Page

Crotts v. Smith, 73 F.3d 861

(9 Cir. 1996) cccicccscornese 21-22, 25

Dunn v. United States, 307 F.2d 883

cS Cir. Bes us Wes cs Ois.ctaesneks 23

Estelle v. McGuire, 502 U.S. 62,

36: 15s ee BOW CASE io ccicaes 23, 26

Florida v. Jimeno, 500 U.S. 248,

520 Bs GRO SOF 14991) cc 0 oc oun 59. 340

Henry v. Estelle,

993. F..28.3423..19 Gar... 1963) «s<8hs 20

Johnson v. Zerbst, 304 U.S. 458,

S2 L.BG. 1461 (1938) .cccccscocercvers 17

Jones v. United States, 385 F.2d 296

[DS Oa c SORPS a codaea spas xeon 24

McGann v. Northeast Illinois Req.

Commuter R.R., 8 F.3d 1174

(F Cite AIAN se bhew aie ener vex 18

McKinney v. Rees, 993 F.2d 1378

oe Che. O08) Seria 22, 25

Michelson v. United States,

335 U.S. 469,

93 L. Ba. 168 (1948)... secs aa) Gate an

Old Chief v. United States,

519 U.S. 172,

136 L.Ed.2d 574 (1997). 21, 22, 25-26

vii

On Lee v. United States,

343 U.S. 747, 96 L.Ed. 1270 (1952) 20

Rogers v. United States, 422 U.S. 35,

45 15:84:34.1: ¢2975).... 12, 43, 14, 19

Snyder v. Massachusetts,

291 U.S. 97,

po ee Me tee Dy ee ee eee Li-i2

United States v. Bussey, 432 F.2d 1330

(eC CSS SPIO) oo a os 635b0%G o wes 24

United States v. Copelin,

996 F.2d 379

Ce. Gir SO os ee 28,24; 35

United States v. Dichiarinte,

4435 F.2G: 126: (7..Civ. 1979) 6d ot os 18

United States v. Elliott,

107 F.3d 810 (10 Cir. 1997).... 17-18

United States v. Gagnon,

470 U.S. 522,

BS Licmerae SOG (2985) oii ccciecrecaer 12

United States v. Jenkins,

a” > eT es a ee ee 23

United States v. Johnson,

102 F.3d 214 (6 Cir. 1996).... 22, 26

United States v. McClain, 440 F.2d 241

PE ew ATR CBr ic Bex Bik 6 Bei. 24

United States v. Neeley, et al.

[Opinion in Lambert's case},

189 F.3d 670 (7 Cir. 1999)

(App. A; App. 1-28)........ 1, passim

viii

United States v. Neff, 10 F.3d 1321

| Bo ORS ee ee eran 12, 14

Williams v. Florida, 399 U.S. 78,

ee a a ae ae CS ee ee ee 13

Constitutional Provisions,

Statutes and Rule

U.S. Const., amend. 5

(QUO PLOCESS) ccc ccceccccsece 2, passim

U.S. Const., amend. 6 (confrontation;

right to be present)........ 2, passim

18 U.S.C. BJldcccccccssccccccvvseseseses 3

om ee, ee eee ee Lee eee te 3

18 U.S.C. BSSLeccccccccccsescevcececeocs 3

21 U.S.C. B4Gcccccevescesesecsesesvece 3

56 DBs VOR is 65 a0s a5 OS 668 638 R 14

SO OR iGi ARI iv oi i a ee ees es 2

Pee ABS os Rs oo 5 SS 12

Other Authority

I WIGMORE, EVIDENCE § 57 (3d ed.1940).. 21

teas ». aaa

RO NR ANS ct SN Eira ae odie CAPA PUIE Hine SOs

1

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Petitioner, Demetrius Lambert

(defendant) prays that a writ of

certiorari issue to review the judgment

of the U.S. Court of Appeals for the 7th

Circuit, affirming the judgment of the

U.S. District Court for the Northern

District of Illinois, Eastern Division.

Opinion and Order Below

The Opinion of the 7th Circuit, No.

97-2834, filed September 8, 1999 (App.

A; App. 1-28), is reported, United

States v. Neeley, et al., 189 F.3d 670

(7 Cir. 1999). On October 20, 1999, the

7th Circuit denied Lambert's timely-

filed’ petition for rehearing and

rehearing en banc. (App. B; App. 29)

* Defendant's Petition for

rehearing/rehearing en banc was filed

within the extended time allowed by

order of the 7th Circuit.

Jurisdictional Statement

On September 8, 1999, the 7th Circuit

filed its Opinion. (App. A; App. 1-28)

Petition for rehearing (timely-filed

within the extended time allowed) was

denied on October 20, 1999. (App. B;

App. 29) This Petition is timely filed

within 90 days.

Jurisdiction is invoked under 28

U.8.C.. &. 256401).

Constitutional Provisions Involved

U.S. Const., Amend. V, provides, in

pertinent part:

"No person shall... be

deprived of life, liberty or

property, without due process

of 2aWs> sha e™

U.S. Const., Amend. VI, provides, in

pertinent part:

"In all criminal prosecutions,

the accused shall enjoy the

right .. . to be confronted

with the witnesses against

mae io we

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STATEMENT OF THE CASE

Jurisdiction in the court of first

instance is based on 18 U.S.C. § 3231,

which provides that the district courts

of the United States shall have original

jurisdiction of all offenses against the

laws of the United States. This cause

arose as a prosecution of defendant,

alleging offenses against the laws of

the United States.

Defendant was convicted of conspiring

to possess with intent to distribute

cocaine (21 U.S.C. 846), conspiring to

defraud the United States (18 U.S.C.

371), and conspiring to commit money

laundering offenses (18 U.S.C. 1956(h)),

and was sentenced to 360 months.

STATEMENT OF FACTS

Defendant was charged in 3 conspiracy

counts of an 18-count indictment naming

a total of 21 defendants. (R 1) This was

a five-week trial. The government

presented evidence from which the 11-

person jury concluded that defendant was

guilty as charged.

Facts re Issue 1 (11-person jury)

Pages of the Transcript containing

all pertinent facts re this issue (Tr.

3266-3301), are attached as App. C.

(App. 31-93)

The jury was instructed on Friday

afternoon, Dec. 6, 1996 (Tr. 3223-53),

the 2 remaining alternates were

discharged (Tr. 3249-53), and the 12

remaining jurors were thereupon sent to

deliberate at 1:20 p.m. (Tr. 3263)

The court, before sending the jury to

deliberate, stated in colloquy with

counsel that at 4:30 that afternoon, the

jurors were to be told they could go

ipreientsteoes

SI WHR. Said dae as

TT a NOR eee mE TS NT ty Ne

home and return at 9:30 the following

Monday morning. (Tr. 3258-59, 3262)

On the Monday morning following that

Friday afternoon, the court reported to

defense counsel that juror Mary Adam

might not be able to continue to serve

on the jury. (Tr. 3267-68) The court

related that a message was received on

Sunday, Dec. 8, 1996, on the court's

telephone answering machine in chambers,

from juror Mary Adam, indicating a

possible problem with her continuing to

serve on the jury. (Tr. Tr. 3267-68)

She was unable to attend court on

Monday, Dec. 9, 1996, because she had to

attend a custody hearing concerning her

grandchildren. (Tr. 3289)

Discussions with the defense

demonstrated all defendants objected to

continuing with 11 jurors if Mary Adam

were to be discharged; defendants sought

to have the court retain at least one of

alternates whom the court had discharged

the previous Friday. (See Tr. 3268-86,

3289-3302.) Counsel for defendant

Lambert expressly so suggested. (Tr.

3280-81) The prosecution refused to

agree to recalling an alternate in place

of a discharged juror. (Tr. 3289; see

Tr. 3301-02)

Eventually the court had two

telephone conversations with Mary Adan,

which were not recorded or reported,

culminating in the court's discharging

her over the phone, without any input

from the defense. The first of these

conversations was on Monday, Dec. 9,

1996, prior to a scheduled 1 p.m. Kane

County hearing involving custody of her

grandchildren (Tr. 3272-73); the second,

.

:

:

on Monday, Dec. 9, 1996, about 4:05

p.m., after the said hearing, reporting

she had been granted temporary custody

of her daughter's three young children -

ages 6, 3, and 6 months, and that

another hearing date had been set for

Dec. 23, 2 weeks off. (Tr. 3299) While

defendants had agreed to have the court

make further inquiry of Mary Adam by

phone (Tr. 3271), there was no agreement

that this telephonic contact not be

recorded or reported, or that the court

could discharge her without consultation

with defendant or his counsel. (Tr.

3271) The following occurred:

"THE COURT: Well, I did not

call her. Do I have your permission

to call her and at least get a

better handle on the situation?

MS. COUGHLIN: Yes.

MR. LOPEZ: Yes, Judge.

MR. BAILEY: [Lambert's trial

defense counsel] That sounds

intelligent to me, Judge, to find

out if it is definite that she will

be available in the morning. Fine.

THE COURT: All right. That is

probably the better course of

action.

I do not, frankly, see -- I

have given the others enough time

to get here and I do not see -- I

have at least your permission to

call her, everyone who is here?

MR. BAILEY: Yes.

THE COURT: I think that is the

prudent thing to do. Let me call

her. Stay here and I will report

back on the subject of my

discussions with her. Okay?

MS. COUGHLIN: That is fine."

(Tr. 3271; App. C, App. 40-41)

(Emphases added. )

Absent the consent of the prosecution

(see Tr. 3289; Tr. 3301-02), the court

refused to seek to recall either

discharged alternate on defense request,

but directed the jury to "commence its

deliberations" (Tr. 3302) with a jury of

11 persons, over defense objections, and

denied defendant's motion for mistrial.

(Tr. 3302)

Facts re Issue 2 (Lack of Any

Limiting Instruction re Other Crimes

Evidence)

In making its case, the prosecution

relied on the testimony of nine (9)

guilty-pleading persons (most, co-

defendants), all with plea agreements

whereby they were to receive substantial

benefits with respect to the

dispositions of their pending charges as

a result of their testimony in this

case. A part of the plea agreement of

each of these witnesses was to testify

truthfully in this case, in exchange for

which the government would make certain

recommendations.

The prosecution also relied on

evidence that one of those witnesses,

Toby Hill, had been shot and put ina

10

car trunk in an apparent kidnaping,

though this activity was not connected

to defendant or to any of the co-

defendants. (Tr. 1434-41)* The court

allowed the evidence as indicative of

the "flavor" of the drug business. (Tr.

1437) Also admitted was evidence of two

other separate shootings (Tr. 103; 370-

71; 377; 436) - neither related to the

charges of the case on trial.

The prosecution further relied on

substantial other-crimes/bad act

evidence regarding possession of weapons

(Tr. 458-62, 513-20), and the court

failed to instruct the jury as to the

limited purpose for which such evidence

could be considered - either at the time

2

A major co-conspirator, Nate

Hill, was a fugitive at the time of

trial. The evidence does not purport to

link him to this activity either.

ee ee ee ee eee ee ee oD

PR eg ee et eee ee ee

icky eat sere ay © eee te

11

of its admission, or in the final charge

to the jury. (See jury charge, Tr. 3223-

52.)

REASONS FOR GRANTING CERTIORARI

1. A DISTRICT COURT, AFTER DELIBERATIONS

HAVE COMMENCED AND AFTER ALTERNATE

JURORS HAVE BEEN DISMISSED, VIOLATES DUE

PROCESS AND DEFENDANT'S RIGHT TO BE

PRESENT, WHEN THE COURT DISCHARGES A

JUROR ON THE BASIS OF EX PARTE, UNSWORN,

UNRECORDED/UNREPORTED PHONE

CONVERSATIONS WITH THE JUROR -

WITH CONSENT ONLY FOR THE COURT TO PHONE

THE JUROR TO DETERMINE THE PROBLEM, AND

WITHOUT CONSENT FOR THE CONTACT TO BE

UNRECORDED/UNREPORTED, AND WITHOUT

CONSENT FOR THE COURT TO ACT WITHOUT

FURTHER INPUT FROM DEFENDANT OR HIS

COUNSEL - THEREBY FORCING DEFENDANT TO

HAVE HIS FATE DECIDED BY 11 JURORS.

The District Court's action in

discharging a juror in such ex parte

manner, violates due process and

defendant's right to be present at all

crucial judicial procedures.

The constitutional right to be

present at every meaningful stage of

trial - protected by due process, Snyder

12

v. Massachusetts, 291 U.S. 97, 105-06,

78 L.Ed. 674, 678 (1934), and "rooted to

a large extent in the Confrontation

Clause of the Sixth Amendment," United

States v. Gagnon, 470 U.S. 522, 526, 84

L.Ed.2d 486, 490 (1985), and as codified

by F.R.Cr.P. 43(a) - extends to all

contacts between the court and a

deliberating jury. Rogers v. United

States, 422 U.S. 35, 45 L.Ed.2d 1

(1975); United States v. Neff, 10 F.3d

1321, 1323-24 (7 Cir. 1993).

The court's communications with Juror

Adam, were communications with a still-

impaneled member of a deliberating jury.

This is a crucial and important issue

for this Court to decide - because at

issue is whether due process requires

recording or transcription of phone

conversations between judge and jurors,

13

and whether courts can make an ex parte

decision about discharge of jurors - an

issue that often may arise, and for

which this Court must set a standard for

the district courts. *-

Defendant's right to a jury of 12

persons, although not constitutionally

mandated, Williams v. Florida, 399 U.S.

78, 26 L.Ed.2d 446 (1970), is an

expected part of the American Justice

system. Ibid. The act of a Judge in i

communicating with members of a jury

(whether to reduce their number, or for

other reasons) is regulated by

procedural due process. Rogers v. United

States, 422 U.S. 35, 45 L.Ed.2d 1

(1975). Part of the requisite procedural

due process is the ability to

memorialize what occurred between judge

and jury - to assure that higher

14

tribunals can evaluate what occurred.

It is required that the conversation be

recorded, and that no judicial action be

taken without input of defendant's

counsel. Rogers, supra; see also United

States v. Neff, 10 F.3d 1321, 1324-25 (7

Cir. 1993), where the Court of Appeals

reversed due to an unrecorded contact

between the district court and a

deliberating jury, stating:

"A record of these proceedings,

whatever they were, is essential.

If the district court had conducted

its communications [with the jury]

in open court as required by

Rogers, then, pursuant to the Court

Reporter's Act, 28 U.S.C. § 753(b),

the district court would have been

required to have a court reporter

present at the proceedings." Id. at

1324.

Here, the Court of Appeals held that

defendant's due process rights were

complied with - because counsel for

defendant had agreed that the court

a ye ae pe ee ee RS eT ore oe

15

could contact the jury to see what the

problems are. (App. A, App. 14-15; 189

F.3d at 679)

The 7th Circuit enlarged consent by

the defense for the court to obtain

information, into consent for the court

to act without opportunity for defense

input, and consent to allow discussions

between judge and juror to be

"unrecorded." The Opinion is wrong,

because defendant and counsel only

agreed to the court's request to

INITIALLY call juror Adam. (Tr. 3271;

App. C, App. 40-41; see quotation at pp.

7-8, Supra.) The court's exact language

to defendant and counsel, clarifying the

scope of the defense consent, was:

"THE COURT: Well, I did not

call her. Do I have your permission

to call her and at least get a

better handle on the situation?

MS. COUGHLIN: Yes.

16

MR. LOPEZ: Yes, Judge.

MR. BAILEY: [Lambert's trial

defense counsel] That sounds

intelligent to me, Judge, to find

out if it is definite that she will

be available in the morning. Fine.

THE COURT: All right. That is

probably the better course of

action.

I do not, frankly, see -- I

have given the others enough time

to get here and I do not see -- I

have at least your permission to

call her, everyone who is here?

MR. BAILEY: Yes.

THE COURT: I think that is the

prudent thing to do. Let me call

her. Stay here and I will report

back on the subject of my

discussions with her. Okay?

MS. COUGHLIN: That is fine."

(Tr. 3271; App. C, App. 40-41)

(also at App. A, App. 10; 189 F.3d

at 677) (Emphases added.)

This agreement was a LIMITED CONSENT for

the court to call her. It was NEVER

consent to unrecorded/unreported FURTHER

phone calls. It was NEVER consent for

the court to proceed, without a SWORN

IIE Oe SONNE el SO GOO AS Tae NT

17

statement by the juror; without the

juror being questioned by counsel for

defendant directly, or through the court

with questions submitted by counsel as

to her assertions as to why she could

not continue to serve; and without the

court advising counsel and defendant of

the juror's assertions of the problem,

so they could present their positions to

the court, for the court to consider in

determining what to do.

Consent must be knowingly and

voluntarily given, Johnson v. Zerbst,

304 U.S. 458, 82 L.Ed. 1461 (1938), and

hence, limited consent is not consent to

broader, greater intrusions of

defendant's rights. Florida v. Jimeno,

500 U.S. 248, 251, 114 L.Ed.2d 297, 302-

03 (1991). See, e.g., United States v.

Elliott, 107 F.3d 810, 814-16 (10 Cir.

18

1997), applying Florida v. Jimeno,

supra; accord, per 7th Circuit, McGann

v. Northeast Illinois Req. Commuter

R.R., 8 F.3d 1174, 1180 (7 Cir. 1993),

quoting Judge Swygert in United States

v. Dichiarinte, 445 F.2d 126, 129-30 n.3

(7 Cir. 1971).

In Florida v. Jimeno, supra, a 4th

Amendment case, this Court stated:

"The standard for measuring the

scope of a suspect's consent ...

that of ‘objective' reasonableness

- what would the typical reasonable

person understand by the exchange

between the officer and the

suspect?" 500 U.S. at 251, 114

L.Ed.2d at 302.

Here, the court's statement: "I have

at least your permission to call her..."

(Tr. 3271; see pp. 7-8 & 15-16, supra;

App. A, App. 10; App. C, App. 41; 189

F.3d at 677) - demonstrates that under

an objective standard, as per Jimeno,

there was consent by the defense only

19

for the court to obtain facts,

especially where the rule of law as per

United States v. Rogers, 422 U.S. 35, 45

L.Ed.2d 1 (1975), required (a) recording

and (b) input from defendant and

counsel.

This Court must grant certiorari to

decide whether a limited consent, as

here, can be used by a district court to

justify (a) holding unrecorded phone

conversations between judge and juror;

and to justify (b) ex parte decision,

providing the defense with no feed back

as to new facts, and no opportunity to

suggest alternative action.

2. WHERE OTHER-CRIMES "BAD MAN" EVIDENCE

WAS SUBSTANTIAL AND VERY PREJUDICIAL,

DEFENDANT WAS DENIED A FAIR TRIAL, IN

VIOLATION OF Sth AMENDMENT DUE PROCESS,

BECAUSE THE JURY WAS NEVER INSTRUCTED ON

THE LIMITED USE OF THIS EVIDENCE -

NEITHER AFTER FINAL ARGUMENTS, NOR WHEN

THE EVIDENCE WAS ADMITTED - THEREBY

PERMITTING THE JURY TO CONSIDER THIS

OTHER-CRIMES, BAD MAN EVIDENCE WITHOUT

ANY JUDICIAL GUIDANCE.

Due process requires that the

limiting instruction given to the jury

on how to consider other crimes ("bad

man") evidence, be given, at the very

moment that such evidence is presented

to the jury, instead of only providing

such a limiting instruction at the end

of all evidence.’ Here, no limiting

instruction re how to consider the other

> This argument is most compelling

here, where the evidence of guilt is

essentially "bad man" evidence, and

testimony of informers, whose testimony

must be considered with great care and

caution. On Lee v. United States, 343

U.S. 747, 757, 96 L.Ed. 1270, 1277

(1952).

F

4

4

21

crimes/bad man evidence, was ever given.

Evidence of other crimes is highly

prejudicial,’ and its improper admission

may be so prejudicial as to deny due

process. Michelson v. United States, 335

U.S. 469, 475-76, 93 L.Ed. 168, 173-74

(1948); Old Chief v. United States, 519

U.S. 172, 136 L.Ed.2d 574 (1997); Henry

v. Estelle, 993 F.2d 1423 (9 Cir. 1993);

McKinney v. Rees, 993 F.2d 1378 (9° CIiYr:

1993); I WIGMORE, EVIDENCE § 57 (3d ed.

1940). It is very prejudicial because it

affects how the jury evaluates evidence.

Crotts v. Smith, 73 F.3d 861 (9 Cir.

* "The deep tendency of human

nature to punish, not because

(the defendant] is guilty this

time, but because he is a bad

man and may as well be

condemned now that he is

caught, is a tendency which

cannot fail to operate with

any jury." I WiGMorRE, EVIDENCE §

57 (3d ed. 1940).

22

1996). The jury may choose to convict

because they believe the defendant is a

bad man. Michelson; Old Chief; United

States v. Copelin, 996 F.2d 379 (D.C.

Cir. 1993). Therefore, such evidence is

admissible, only if joined by a limiting

instruction that is designed to regulate

[limit] the jury's use of such evidence

- and not permit the jury to convict

defendant because they think he is a

"bad man."° United States v. Johnson,

102 F.3d 214, 222 (6 Cir. 1996) (failure

° Although defendant specifically

and separately argued on appeal that he

was denied a fair trial because the

court failed to give the jury

appropriate and timely limiting

instructions as to the other-crimes

evidence (Def. Br. Point II(B), pp. 33,

45-47), the 7th Circuit addressed the

issue of no limiting instructions only

in terms of defendant's separate

argument that he received ineffective

assistance of counsel because counsel

did not request limiting instructions.

(App. A, App. 23-24; 189 F.3d at 684)

RES he. SY en ay ae eo

23

to instruct re limited use of bad man

evidence denied a fair trial); see

Estelle v. McGuire, 502 U.S. 62, 116

L.Ed.2d 385 (1991), holding by

implication that due process would be

violated if the limiting instruction did

permit the "bad man inference."

The common practice has been to

provide such a limiting instruction with

all other instructions, only at the end

of trial. Because of the human nature of

jurors, and how bad man evidence affects

them,® providing a limiting instruction

only at the end of the evidence after

° Striking improperly admitted bad

man evidence may not cure the error,

because of the highly prejudicial nature

of such evidence. United States v.

Jenkins, 7 F.3d 803 (8 Cir. 1993)

(reversal for improper bad man evidence,

despite attempted curative measures) ;

Dunn _v. United States, 307 F.2d 883, 886

(>: Ciz. 1962) (""(I)£ you throw a skunk

into the jury box, you can't instruct

the jury not to smell it'.")

24

final arguments is insufficient to

insure that the jury is not (when they

consider prosecution testimony) tainted

by their belief that defendant is a bad

man. If no instruction is given when the

bad man evidence is admitted, the jury

will consider it as bad man evidence.

In Copelin, the Court of Appeals,

adopting Judge Bazelon's language from

United States v. McClain, 440 F.2d 241,

246 (D.C. Cir. 1971), held:

"(Wjhenever evidence is admitted

only for a limited purpose, it is

plain error...to omit an immediate

cautioning instruction. The danger

of prejudicial effect from such

evidence is so great that only an

IMMEDIATE and CONTEMPORANEOUS

instruction can be considered

sufficient to protect defendants."

Copelin, 996 F.2d at 384 (Emph.

added), citing Jones v. United

States, 385 F.2d 296 (D.C. Cir.

1967); United States v. Bussey, 432

F.24.1330 (D.C... Gir.-:i970}):.

To insure that jurors only apply the bad

man evidence for the limited purpose for

SOT PTT TT

TER OA AD OF ERI RR Se er

SEA PERI Nar es

EE De

25

which it was admitted, instead of the

jurors accepting the prosecution

testimony "hook, line and sinker"

because they believe defendant is an

evil man, the jury must receive the

limiting instruction at the time the bad

man evidence is first presented, whether

in opening argument or in prosecution

testimony. Copelin, 996 F.2d at 384.

There is no policy reason why the

instruction should not be given at the

earliest opportunity.

Therefore, just as due process

requires exclusion of immaterial,

irrelevant "bad man" evidence -

Michelson, Old Chief, Henry v. Estelle,

McKinney v. Rees, Crotts v. Smith, all,

Supra p. 21 - and requires exclusion of

other crime evidence where prejudicial

effect outweighs probative value, Old

26

Chief, and requires limiting

instruction, where the jury is permitted

to consider evidence for a limited

purpose, United States v. Johnson,

supra, 102 F.3d at 222; Estelle vy.

McGuire, supra, so, too, due process

requires that such a limiting

instruction must be given when the

other-crimes evidence is admitted.

Certiorari should be granted because

other crimes evicence is presented in a

good percentage of criminal cases, both

State and federal, and hence the problem

of when an instruction should be given

is a serious, national problem,

requiring this Court to hold that due

process requires that the appropriate

other-crimes limiting instruction must

be given when the evidence is first

referred to in argument and when the

es

1 De eee ee ee ee eS

eel

27

evidence is admitted before the jury.

CONCLUSION

For the foregoing reasons, certiorari

should be allowed.

FREDERICK F. COHN

Attorney for Petitioner