Petition for Writ of Certiorari — Hughes v. United States

“eT. c,

97130 4 FEB 9 - 1998

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

FRANK HUGHES,

Petitioner

.

UNITED STATES OF AMERICA

Respondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

DENNIS C. SWEET III*

DEANNE M. MOSLEY

LANGSTON FRAZER SWEET

& FREESE, P.A.

- 201 NORTH PRESIDENT STREET

JACKSON, MS 39201

(601)969-1356

*Counsel of Record

Oe ee ee

QUESTIONS PRESENTED

Whether the admission of improper hearsay violated

Defendant’s rights as guaranteed by the Confrontation Clause of the

Sixth Amendment?

Whether the United States of America violated the Jencks Act

by failing to produce reports and statements?

Whether the United States of America made improper

comments relative to Defendant’s failure to testify?

TABLE OF CONTENTS

CRIES TIES PRREUC EG os oes ewecicesessevecees 1

TAREE GE ATEN 2 eo kik on naean sheen ene ili

8 ee er ree ee ep ee 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

EVE US 6 60 dake cle cae aa ee eee eee ees st 2

STATERRSTTE OF TOR eda hekcmaee ences cass 2

REASON FOR GRANTING THE PETITION. ............. 5

A. THE FIFTH CIRCUIT SANTIONED A

DEPARTURE SO FAR FROM THE ACCEPTED

AND USUAL COURSE OF JUDICIAL

PROCEEDINGS AS TO CALL FOR AN EXERCISE

OF THE COURT’S SUPERVISORY POWER... .5

l. The Admission of Improper Hearsay

Testimony Violated Defendant’s Rights as

Guaranteed by the Confrontation Clause of the

ee EE eee 5

y J The United States Violated the Jencks Act by

Failing to Produce Reports and Statements . . 9

3. The Procesutor Made Improper Comments

Relative to Defendant’s Failure to Testify. . .13

CORMCLLUSIOIN . . 0. 654 ss cups eee 15

APVEPEN. 6 65 kk cde ne cee la

TABLE OF AUTHORITIES

CASES PAGE

California Green, 399 U.S. 161 (1970)................. 8,9

ee ae ee 13

Dutton v. Evans, 400 U.S. 89 (1970)... wc ccc ccc cece eee 8

Ecker v. Scott, 69 F.3d 69 (Sth Cir. 1995). ...........c 0000. 8

Favre v. Henderson, 464 F.2d 359 (Sth Cir. 1972)......... 7,8,9

Goldberg v. United States, 425 U.S. 94 (1976).............. 13

Griffin v. California, 380 U.S. 609 (1965)................. 13

Idaho v. Wright, 497 U.S. 530 (1986)..................44. 7

EE SR Se 7

Mechlar v. Procunier, 754 F.2d 1294 (5th Cir. 1985). ........ 7,9

Ohio v. Roberts, 448 U.S. 56 (1980). ..............-0000- 7

Sherman v. Scott, 62 F.3d 136 (Sth Cir. 1995) .............. 7

Sullivan v. Louisiana, 508 U.S. 275 (1993)..............4. 14

United States v. Beck, 138 F.Supp. 756 (S.D. Texas 1956)...... 8

United States v. Cain, 587 F.2d 678 (Sth Cir. 1979). .......... 8

United States v. Conroy, 589 F.2d 1258 (Sth Cir. 1979). ....... 12

United States v. Edwards, 576 F.2d 1152 (5th Cir. 1978). ...... 14

United States v. Edwards, 702 F.2d 529 (Sth Cir. 1983)........ 12

United States v. Fierro, 38 F.3d 761 (Sth Cir. 1994).......... 13

United States v. Fogg, 652 F. 2d 551 (Sth Cir. 1981).......... 13

iv

United States v. Garcia, 655 F.2d 59 (Sth Cir. 1981).......... 13

United States v. Hogan, 76: .2d 697 (Sth Cir. 1985)......... 12

United Siates v. Laury, 985 F.2d 1293 (Sth Cir. 1993)......... 13

United States v. McKenzie, 768 F.2d 602 (Sth Cir. 1985). ... 11,12

United States v. Moody, 903 F.2d 321 (Sth Cir. 1990)......... 9

United States v. Ogbuehi, 18 F.3d 807 (9th Cir. 1994)......... 12

United States v. Pennington, 20 F. 3d 593 (5th Cir. 1994)...... 13

United States v. Pierce, 893 F.2d 669 (Sth Cir. 1990)......... 12

United States v. Tomblin, 46 F.3d 1369 (Sth Cir. 1995)........ 14

United States v. Vernor, 902 F.2d 1182 (Sth Cir. 1990)......... 7

United States v. Wilkerson, 534 F.2d 43 (Sth Cir. 1976)....... 14

STATUTES

Oe ee a os dee eb ee oe ee 2 a ee 3

ea es Aes so ae ie hee ee ie en ee ee ee 4

Go hg ye eo ee eee 2,9,10,11,12,13

Be ee IES Oo ee ae ee ee eae ae ete ee 3

Se es EY es a eee eke 445 6h ae Eee 3

Sr ee I ae se GN eee se es Mao a ea ree 2

eS WI Gi ca a eR ek ee 4

Sry a SE Wess oe an oe a os ROR ORS oe Ole 2,13

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

No.

FRANK HUGHES,

Petitioner

Vv.

UNITED STATES OF AMERICA

Respondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Frank Hughes respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the

Fifth Circuit in ‘his case.

OPINIONS BELOW

The judgment and order of the United States Court of Appeals

for the Fifth Circuit are not officially reported. App. la, App.14a.

The judgments and order of the United States District Court for the

Western District of Louisiana, Shreveport Division, App. 2a-9a, 10a-

11a, and 12a-13a are not officially reported.

JURISDICTION

The judgment of the United States Court of Appeals for the

Fifth Circuit affirming without opinion was entered on November 10,

1997. App. la. The order of the United States Court of Appeals for

the Fifth Circuit denying the petition for rehearing was entered on

December 17, 1997. App. 14a. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitutional provisions involved are the Fifth and Sixth

Amendments to the United States Constitution. The relevant portion

of the Fifth Amendment states that “[nJo person . . . shall be

compelled in any criminal case to be a witness against himself... .”

U.S. Const. Amend. V. The relevant portion of the Sixth

Amendment states as follows: “[iJn all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. Amend. VI.

The statutory provision involved is the Jencks Act, 18 U.S.C.

§ 3500. The relevant portion of the Jencks Acts states as follows:

After a witness called by the United States has

testified on direct examination, the court shall, on

motion of the defendant, order the United States to

produce any statement . . . of the witness in the

possession of the United States which relates to the

subject matter as to which the witness testified.

18 U.S.C. § 3500.

STATEMENT OF THE CASE

Petitioner, Frank Hughes (hereinafter referred to as

“Defendant”), was charged as being a member of a conspiracy to

distribute cocaine stemming from an investigation conducted by the

Caddo-Bossier Louisiana Narcotics Task Force which had taken place

over a four year period (R. Vol. 8, p. 390). The investigation

involved the interception of packages mailed to and from members of

the alleged conspiracy, controlled buys of cocaine by members of the

task force from alleged conspiracy members, tape recordings of

members of the task force during the course of the undercover

——————

controlled buys, tape recordings of phone conversations of members

of the alleged conspiracy discussing matters concerning the

distribution of cocaine, the submission of seized items for fingerprint

examination, and the submission of handwriting exemplars for

forensic examination. (R. Vol. 8, pp. 388-390 and R. Vol. 2, p.

379). Of all the hundreds of items seized, confiscated, and obtained

by the Caddo-Bossier Narcotics Task Force in conjunction with law

enforcement officials from Mississippi and California, not one item of

physical evidence was seized from Defendant or anyone in his

presence. (R. Vol. 5, p. 22 and R. Vol. 8, pp. 387-388).

Furthermore, Defendant’s handwriting and fingerprints were not

recovered from any of the items seized. (R. Vol. 8 pp. 387-389).

The Caddo-Bossier Narcotics Task Force made 123 tapes (R. Vol. 2,

p. 325) of which Defendant did not appear on any of the tape

recordings. (R. Vol. 2, p. 325).

On September 7, 1995, Defendant, along with nine co-

defendants, was indicted in a twenty-five count indictment.

Defendant was charged in Counts | and 25 of the indictment. Count 1

charged Defendant with conspiracy to distribute cocaine in violation of

21 U.S.C. § 846. Count 25 of the indictment sought seizure of

property alleged to be derived from proceeds of the conspiracy

pursuant to 21 U.S.C. § 853(p).

On February 6, 1996, the first indictment was dismissed by

the entry of a superseding indictment. The Superseding indictment

was a fourteen count indictment of which Defendant was named in

Counts 1, 4, 8 and 14. As to Defendant, Counts 1 and 14 were

identical to Counts | and 25 in the first indictment. Counts 4 and 8 of

the superseding indictment charged Defendant with two counts of

Interstate Travel in Aid of Racketeering Enterprises in violation of 18

U.S.C. § 1952. (R. Vol. 4, p. 1013).

An arrest warrant for Defendant was issued by the United

States District Court for the Western District of Louisiana, Shreveport

Division. When the arrest warrant was executed, a team of local law

enforcement officials went to Defendant’s residence to execute a

search warrant, which had been obtained from a state court in

Mississippi. (R. Vol. 5, p. 12 and R. Vol. 11, p. 103). No drugs,

drug paraphernalia, large sums of money, or any physical evidence

which could be associated with the possession or distribution of a

controlled substance were obtained as a result of the execution of the

search warrant. (R. Vol. 11, p. 103).

Trial in this matter began on August 6, 1996, and was held in

the United States District Court of the Western District of Louisiana,

Shreveport Division, with jurisdiction based upon 18 U.S.C. § 3231.

All other alleged co-conspirators pled guilty, and Defendant was the

only person charged in the indictment to go to trial. Defendant was

found guilty of four.substantive counts. (R. Vol. 4, p.1026 ).

The majority of the United States’ proof of Defendant’s

involvement in the alleged conspiracy to distribute cocaine was

through co-conspirators or convicted felons; all of whom admitted that

they sought to gain the favor of the United States in hopes that the

United States would request the appropriate court to give them a lesser

sentence. Although law enforcement officers, postal inspectors, and

witnesses who were not co-conspirators testified, their testimony was

directed solely at proof of the existence of the conspiracy,

accomplished through testimony relative to wrongful acts of the co-

conspirators. The United States did produce one witness, Stan

Crossley, who was uncharged and who testified that Defendant picked

up packages mailed to his address.

The only physical evidence introduced against Defendant was

circumstantial. This evidence consisted of telephone records reflecting

calls made from an apartment allegedly occupied by Garland Rogers, a

co-conspirator, to Defendant’s shop. (R. Vol. 11, pp. 1021-1027).

Garland Rogers testified that Calvin Predom, an indicted co-

conspirator, made at least one call to Frank Hughes from this

apartment. Defendant introduced certified documents demonstrating

that Calvin Predom had in fact left a car at his shop to be repaired and

that Calvin Predom had never paid for the repairs to the automobile.

These records reflect that Defendant executed a mechanic’s lien and

took the car as payment. (Defendant’s Exhibit 8). These records also

reflect that Defendant was seizing the car at or around the same time

period as the call from the apartment of Garland Rogers by Calvin

Predom. Defendant attempted to call Dennis Ashley, Defendant's

business partner, to testify concerning the seizure of the car which had

been abandoned for in excess of one year; however, the district court

excluded this testimony as irrelevant. (R. Vol. 11, pp. 996-997).

Alleging that the district court erred, Defendant timely filed a

Notice of Appeal to the United States Court of Appeals for the Fifth

Circuit. Jurisdiction was based upon 28 U.S.C. § 1291. The Fifth

Circuit on November 10, 1997, affirmed without opinion. On

December 17, 1997, the Fifth Circuit denied Defendant’s petition for

rehearing.

eT TS

REASON FOR GRANTING THE PETITION

A. THE FIFTH CIRCUIT SANCTIONED A

DEPARTURE SO FAK FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS AS TO

CALL FOR AN EXERCISE OF THIS COURT’S

SUPERVISORY POWER.

1. The Admission of Improper Hearsay Testimony

Violated Defendant’s Rights as Guaranteed by the

Confrontation Clause of the Sixth Amendment.

In their case-in-chief the United States called as its witness

Ofticer William Golden, the Director of the Shreveport-Bossier Drug

Task Force, to testify to matters constituting hearsay received from a

confidential informant. Prior to Officer Golden’s testimony the

United States produced documents as Jencks material which contained

information reported to Officer Golden from an_ unidentified,

confidential informant.' The relevant part stated as follows:

On Saturday, November 27, 1993,

GARLAND ROGERS, a.k.a. ROVER traveled to

McComb, Pike County, Miss. ROGERS drove his

biack/yellow Cadillac. . .

ROGERS entered one of HUGHES garages,

opened the hood of ROGERS Cadillac, where

HUGHES and ROGERS, and CALVIN used a

screwdriver and removed approximately 42 (forty two)

ounces of crack Cocaine from the engine

compartment...

ROGERS and CALVIN are to return to pick up

the money for the 42 ounces from HUGHES.

ROGERS is alleged to attempt to have his wife

accompany him on the trip... .

Court's Exhibit No. 1. Upon reading this material, counsel for

Defendant immediately objected to Officer Golden testifying to any of

the matters related to him by the confidential informant. (R. Vol. 8,

pp. 376-377). However, the district court allowed Officer Golden to

testify.

' The Jencks material itself was not introduced into evidence but was

made a part of the record as Court’s Exhibit Number 1.

After eliciting from Officer Golden that he had conducted an

investigation into the conspiracy (R. Vol. 8, p. 381), that he

developed cases against Garland Rogers and Calvin Predom, a.k.a.

Calvin Austin, as members of the conspiracy (R. Vol. 8, pp. 381-

382), that he had made “undercover” buys from Garland Rogers (R.

Vol. 8, p. 382), and that they had made “undercover” buys from other

persons working for Garland Rogers and Calvin Predom (R. Vol. 8,

p. 382), the United States then elicited testimony from Officer Golden

that he became aware of Defendant in connection with this conspiracy

in “later 1993 or early 1994.” (R. Vol. 8, p. 384). On direct

examination by the United States, Officer Golden testified as follows:

By Ms. CASSIDY:

Q. Without telling us what anyone else may have

said, what did you tell Steve Rushing or Ron Frazier to

be on the lookout for in December of “93?

A. I told them that I had received information --

Q. Now, without telling us what information,

what did you tell them to look for.

A. Told them to look for three persons or two

persons traveling from Shreveport, to Louisiana to

McComb, Mississippi to get money from Frank

Hughes.

Mr. Sweet: Objection, Your Honor.

The Court: On What Basis?

Mr. Sweet: To the extent it requests

hearsay.

The Court: No. Overruled.

By Ms. CASSIDY:

Q Did you describe a particular vehicle?

A. Yes, we did. I mean, I did, yes.

Q. What vehicle did you tell them to look for?

A. It was an older model yellow or gold Cadillac.

Q. Did you tell them who you thought might been

in the Vehicle?

A. Yes, I did.

Q. And who did you tell them might be in the

vehicle?

A. That Garland Rogers and possibly Calvin

Austin would be in the vehicle, and may be

accompanied by one or two females.

(R. Vol. 8, pp. 384-385). This testimony by Officer Golden consisted

of the information that the confidential informant had related to Officer

Golden without giving Defendant an opportunity to confront the

confidential informant. The United States did not call Officers Steve

Rushing or Ron Frazier who they stated this information was related

to show that they acted on this information. The only purpose of this

testimony was to put before the jury an out of court assertion that

Defendant was guilty of involvement in this conspiracy. The

admission of this testimony was improper and was a violation of the

Confrontation Clause of the Sixth Amendment to the United States

Constitution.

The Confrontation Clause provides that “in all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. Amend. VI. This

Court has promulgated a two-prong test under which the

Confrontation Clause would restrict admissible hearsay: (1) the party

seeking to introduce the hearsay must demonstrate the declarant's

unavailability; and (2) the hearsay statement must bear an “adequate

indicia of reliability’? to be admissible under the Confrontation

Clause. Ohio v. Roberts, 448 U.S. 56, 66 (1980); see, e.g.,

Mechlar v. Procunier, 754 F.2d 1294, 1297 (Sth Cir. 1985) (stating

test). If the hearsay is admitted pursuant to a “firmly rooted exception

to the hearsay rule,” then reliability may be inferred. Roberts, 448

U.S. at 66. However, it is commonly noted that “[e]vidence that does

not fall within a ‘firmly rooted hearsay exception’ is presumptively

unreliable and inadmissible for confrontation clause purposes unless

‘it is supported by a ‘showing of particularized guarantees of

trustworthiness.”” United States v. Vernor, 902 F.2d 1182, 1186

(Sth Cir. 1990) citing Lee v. Illinois, 476 U.S. 530, 543 (1986)

(citations omitted). In determining if-a hearsay statement has a

showing of “particularized guarantees of trustworthiness,” courts

must look to the “totality of circumstances that surround the making of

the statement and that render the declarant particularly worthy of

belief.” Idaho v. Wright, 497 U.S. 805, 820 (1990).

Similar facts to those of the instant case were present in the

case of Favre v. Henderson, 464 F.2d 359, 361 (Sth Cir. 1972),

when a police officer testified that the source of his information was

confidential informants. In Favre, the Fifth Circuit Court of Appeals

? The “indicia of reliability” cannot be the result of “corroboration with

other evidence at trial, . . . ‘to be admissible under the Confrontation

Clause, hearsay evidence used to convict a defendant must possess

indicia of reliability by virtue of its inherent trustworthiness, not by

reference to other evidence at trial."” Sherman v. Scott, 62 F.3d 136,

140 n.2 quoting Jdaho v. Wright, 497 U.S. 805, 822 (1990).

found that the testimony violated Favre’s right to be confror d and

stated as follows:

In short, the jury was led to infer that the informers,

who were not identified, were not present in court, and

were not subject to cross-examination, believed that

Favre was guilty of the crime charged. Inherent in the

testimony, which may have been offered only to

establish identification, was an assertion by an out-of-

court declarant as to guilt. By saying, “Favre

committed the crime”, the out-of-court declarant said

(1) “Favre committed the crime” [identification] and,

(2) “Favre committed the crime” [guilt]. . The

statements were offered to establish the truth of the

matters asserted therein - identification, guilt, or both.

The truth of the assertions depended upon the

credibility of the informers who were not identified,

not present in Court, and not subject to cross-

examination.

Favre, 464 F.2d at 362. This long-standing problem is inherent when

the United States seeks to use an informant’s testimony without

disclosing his identity. See, e.g., United States v. Beck, 138

F.Supp. 756, 758 (S.D. Texas 1956) (cautioning courts to be

cautious that “no injustice results from the ‘informer’ system”).

However, the solution is simple:

[T]he state may not both introduce an unidentified

informant’s statement at a trial on the merits and at the

Same time maintain his anonymity. If the state does

not wish to disclose the identity of the informant and

produce him, it must forego his testimony, else the

accused is denied ‘the right of confrontation * * * an

essential and fundamental requirement for the kind of

fair trial which is the country’s constitutional goal.”

Favre, 464 F.2d at 367 (citations omitted). It is well established that

the Confrontation Clause’s mission is to “advance a practical concern

for the accuracy of the truth-determining process in criminal trials by

assuring that ‘the trier of fact has a satisfactory basis for evaluating the

truth of the prior statement.”” Jd. at 364, quoting California v. Green,

399 U.S. at 161; Dutton v. Evans, 400 U.S. at 89. See also Ecker v.

Scott, 69 F.3d 69, 71 (Sth Cir. 1995) (stating “the right of

confrontation and cross-examination is an essential and fundamental

requirement”); cf. United States v. Cain, 587 F.2d 678, 682 (Sth Cir.

1979) (reversing where officer testified to information received from

unidentified individual on the basis of improper hearsay); United

States v. Moody, 903 F.2d 321 (Sth Cir. 1990) (holding the

admission of out of court hearsay testimony, without giving the

defense an opportunity to offer evidence impeaching the declarant,

violated the Confrontation Clause).

In the instant case as in Favre, the jury “had absolutely no

‘satisfactory basis for evaluating the truth of the prior statement.’

Favre, 464 F.2d at 364. The Confrontation Clause issue is

emphasized in this action due to the fact that the hearsay declarant was

not identified - Defendant had no opportunity to impeach via character

evidence, as the unidentified, confidential informant was unknown.

Furthermore, the “primary object of the sixth amendment was to

prevent the use of ex parte statements against an accused who has no

opportunity to confront and cross-examine the witness.” Mechler v.

Procunier, 754 F.2d 1294, 1296 (5th Cir. 1985): cf. California v.

Greene, 399 U.S. 149, 157-58 (1970). Defendant respectfully

submits that where. as in the case sub judice, the United States” case

lacks physical or forensic evidence the introduction of an out of court

assertion of guilt is even more prejudicial.

2. The United States Violated the Jencks Act by Failing

to Produce Reports and Statements.

Officer William Golden further testified that he began an

investigation into this conspiracy that spanned a penod of four vears

(R. Vol. 8. pp. 379-390), that covered Louisiana. Mississippi, and

Los Angeles. California. and involved agents from Georgia and

Texas. (R. Vol. 8. p. 381). Officer Golden testified that he targeted

Garland Rogers as a member of the conspiracy and made undercover

purchases from members of the conspiracy. (R. Vol. 8, p. 381).

Officer Golden also named each of the members of the conspiracy

from whom he made undercover purchases. (R. Vol. 8, pp. 381-

383). Officer Golden then testified that he became aware of Defendant

in 1993 and testified about information he received from an informant

and related to Mississippi authonties. (R. Vol. 8, pp. 383-386). He

also testified that he went to Los Angeles, California to interview Kiki

Alverez. a co-conspirator. (R. Vol. 8. p. 386).

Just prior to Officer Golden testifving, Defense counsel was

given a nine page document which was represented to be the Jencks

material as to this witness. See Court’s Exhibit Number |. The

Jencks material given to Defense counsel did not cover any of the

undercover introductions into the conspiracy Officer Golden testified

10

about, any of the undercover purchases he testified about, or anything

relating to the interview he conducted of Kiki Alverez in Los Angeles,

California. Defense counsel doubting that this could be all the Jencks

on this witness, the task force director who had conducted a four year

investigation into a conspiracy covering Mississippi, Louisiana and

California, thoroughly questioned Officer Golden concerning potential

Jencks as follows:

Q. Have you reviewed other documents in

connection with your investigation?

A. Yes, I have.

Q. What documents have you reviewed?

A. Concerning What, Sir?

Q. The investigation that you’re here talking

about, testifying about, testifying about.

A. The investigation that we have is -- has been

going on for four years, and there are volumes of

reports.

Q. Have you read through those reports?

A. I had in the past, yes, sir, not in the last couple

of days, no. I didn’t have time.

Q. Were they reports about what your

investigation -- you personally were involved in?

A. Yes, sir.

Q. And were you reading them to determine, make

sure that they were accurate and complete?

A. As far as I remember, yes.

Q. And the reports that you reviewed were

accurate and complete: is that nght?

A. Yes. Sir. As far a =” memory is, yes, sir.

Q. And you adopted t.~®". as your statement? Like

if a report talked about an undercover buy that you

were involved in and you reviewed it for accuracy,

then if it was correct -- if it was incorrect, you could

change it?

A. Yes.

Q. If it was correct, you could adopt it as your

statement, also, as to what occurred?

A. Yes, sir, as to a report of what I saw or what I

heard or what I did.

Q. How many such reports would you say you

reviewed like that?

A. Hundreds.

Q. And on each of the occasions where you were

involved, would you review the reports?

ee

1]

A. Yes.

Q. And you were involved with the entire

investigation over the four years that occurred here in

Shreveport?

A. Yes, Sir. I was involved in most of it, yes, sir.

Either that or personnel of our task force or D.E.A. or

whatever organization.

Q. If personnel of your task force was involved,

would you also review that statement --

A. Yes, sir.

Q. -- For its’ accuracy?

A. Yes, sir.

(R. Vol. 8, pp. 390-392).

Pursuant to this testimony, Defense counsel then requested the

district court to either order the production of the documents or

conduct an in camera inspection of the documents. The district court

responded “[w]hy? Why would I want to read thousand of pages of

documents? He’s given you what he read in preparation for his

testimony today. Tell me why it is necessary for me to read of all the

activities of this task force over the last how many years?” (R. Vol. 8,

p. 393). The district court then stated that it was accepting the United

States’ assurances that all of the Jencks material had been given to the

Defendant. (R. Vol. 8, p. 396). Defense counsel then cited the court

to United States v. McKenzie, 768 F.2d 602 (Sth Cir. 1985). After

the district court read McKenzie the court stated to the United States’

attorney as follows:

I mean, I'll be glad if you can tell me that this is

bad law, because I sure am not anxious to do it, but

that’s the way I read United States versus McKenzie as

saying.

The district court then went on to say:

I don’t know how I could refuse it. You want

time to look at this case and find -- if you can find me a

squeeze hole that I can get out of reading all this,

believe me -- I’m in the middle of an excellent novel.

I'd much rather spend my evenings reading it than all

this. You want time to look up United States v.

McKenzie, 768, and shepard it?

12

(R. Vol. 8, p. 398). The district court did not rule at that time. Later

in the trial, the district court refused to require the United States to

produce any documents, refused to do an in camera inspectioa of the

documents and refused to seal the documents and make them a part of

the record to be reviewed on appeal. (R. Vol. 8, pp. 460-461).

Clearly, the United States did not produce all the Jencks

material as to Officer Golden. The Defendant has no way to know all

of the statements which were not produced. However, later in the trial

when Kiki Alverez testified, the issue of the United States failing to

timely produce recordings of an interview of Kiki Alverez was again

raised. At that time, it was revealed that a partial tape of Officer

Golden’s interview of Kiki Alverez had been made, a transcript of that

tape had been made, and a report of the interview had been made. (R.

Vol. 10, pp. 726-727). This Jencks material was not produced for

cross-examination of Officer Golden in spite of the fact that Officer

Golden testified concerning the interview on direct-examination for the

United States. Defendant submits that this is conclusive proof that the

United States was wrong in the assurances given to the district court.

The failure of the district court to order that the reports and

Statements be produced to Defendant by the United States or conduct

an in camera evaluation of the reports was error, a violation of the

Jencks Act, 18 U.S.C. § 3500, mandating a reversal of the judgment

of conviction, and a new trial. United States v. Pierce, 893 F.2d 669

(Sth Cir. 1990); United States v. McKenzie, 768 F.2d 602 (Sth Cir.

1985); United States v. Hogan, 763 F.2d 697 (Sth Cir. 1985); United

States v. Conroy, 589 F.2d 1258 (Sth Cir. 1979); United States v.

Ogbuehi, 18 F. 3d 807 (9th Cir. 1994). Prior to the case sub judice,

the Fifth Circuit had mandated as follows:

The district court has a duty to inspect documents in

camera if a timely request is made by the defense and

some indication exists in the record that the notes meet

the Jenck’s Act’s definition of a statement. United

States v. Hogan, 763 F.2d at 704; United States v.

Edwards, 702 F.2d 529, 531 (Sth Cir. 1983).

United Ses v. Pierce, 893 F.2d 669, 675 (Sth Cir. 1990). The

district court in the instant case failed to met this duty. Moreover, the

district court may not rely on “...United States assertions alone to

resolve disputes about the adequacy of disclosure under the act.”

United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985).

Reliance on the United States’ assertions is particularly misplaced in

the face of concrete evidence, i.e., the testimony of the officer

ie eR a 6 ada «SOREL el SAS OP

tent Hh at NO Lin So FM Pi atta an bo

13

himself, that the statements exist and relate to the drug conspiracy.

The officer’s testimony directly contradicted the specific representation

made by the United States and relied upon by the district court in

denying Defendant's motion for production of the materials or an in

camera review.

The Defendant was “entitled to relevant and competent reports

and statements in the possession of the Government touching the

events and activities as to which a Government witness has testified at

trial.” Goldberg v. United States, 425 U.S. 94, 104 (1976). The

denial of the motion amounted to a violation of the Jencks Act,

mandating production of the documents or an in camera review, and a

new trial.

3. The Prosecutor Made Improper Comments Relative to

Defendant’s Failure to Testify.

The United States put into evidence three phone calls made to

the business residence of Defendant from an apartment said to be

occupied by Garland Rogers and Calvin Predom. (R. Vol. 11, pp.

1021-1027). In closing arguments, the United States argued that

these calls were for the purpose of a drug deal as opposed to a

legitimate purpose. Specificaliy, the United States argued that

“[t}here’s no explanation but for Frank Hughes was calling Calvin

Predom to get cocaine.” Counsel for Defendant objected. (R. Vol.

12, pp. 1139-1140).

The United States was correct that Defendant had not testified

to offer an explanation. However, Defendant submits that this

comment was an improper comment on his failure to place testimony

before the jury countering certain evidence argued to be material by the

United States. U.S. Const. Amend. 5; Griffin v. California, 380

U.S. 609 (1965); Dovle v. Ohio, 426 U.S. 610 (1976); United States

v. Pennington, 20 F.3d 593 (5th Cir. 1994); United States v. Laury,

985 F.2d 1293 (Sth Cir. 1993).

Simply. the United States “may not comment directly or

indirectly on a defendant’s failure to testify.” United States v. Fierro,

38 F.3d 761. 771 (Sth Cir. 1994); see United States v. Garcia, 655

F.2d 59, 64 (Sth Cir. 1981) (stating “both direct and indirect

comments which undermine the defendant's fifth amendment rights

will invalidate a conviction’). Such comments upon defendant's

failure to testify “violate the defendant's fifth amendment rights and

necessitate reversal.” United States v. Fogg, 652 F.2d 551, 557 (5th

Cir. 1981). Prior to the case sub judice, the Fifth Circuit Court of

14

Appeals warned prosecutors that commenting upon silence of a

defendant “is a crooked knife and one likely to turn in the prosecutor’s

hand. The circumstances under which it will not occasion a reversal

are few and discrete.” United States v. Edwards, 576 F.2d 1152,

1155 (Sth Cir. 1978). The Fifth Circuit even went as far to “suggest

that [such comments] be abandoned as a prosecutorial technique.”

Edwards, 576 F.2d at 1155.

The case of United States v. Wilkerson, 534 F.2d 43 (Sth Cir.

1976), presented the Fifth Circuit Court of Appeals with a similar

factual scenario. In Wilkerson, the prosecutor in closing argument

stated, “[t]he only two people that can bring out that testimony are the

people that were there, and we have brought you the testimony of Mr.

Harris.” Wilkerson, 534 F.2d at 44. The Wilkerson court held that

even though no objection was made, “this was a comment on the

failure of the defendant to take the witness stand and it was plain

error.” Jd. (citation omitted). See aiso United States v. Edwards,

576 F.2d 1152, 1154 (Sth Cir. 1978) (reversing due to the

prosecutor’s closing comment that “there was no_ reasonable

explanation given”).

This error alone warrants a new trial, as a defendant may be

entitled to such “when the prosecutor’s remarks during closing

argument are both inappropriate and harmful.” United States v.

Tomblin, 46 F.3d 1369, 1389 (Sth Cir. 1995). In order to prevent

reversal when a Fifth Amendment violation has occurred due to a

comment upon the defendant’s failure to testify, the United States

could show “beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Sullivan v. Louisiana, 508

U.S. 275, 278-79 (1993). Due to the weakness of evidence against

Defendant, it is impossible to view the United States’ comments as

harmless. Such comments were substantially prejudicial to Defendant

and warrant reversal.

15

CONCLUSION

inthe saa

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DENNIS C. SWEET III*

DEANNE M. MOSLEY

LANGSTON FRAZER SWEET

& FREESE, P.A.

201 NORTH PRESIDENT STREET

Jackson, MS 39201

(601)969-1356

A RR aR ARONA Lal FB AY tet Cae nb en «

Attorneys for Petitioner

Frank Hughes

*Counsel of Record

Dated: February 6, 1998.

.

APPENDIX

la

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 96131223

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK HUGHES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

: (95-CR-50071)

Before EMILIO M. GARZA, STEWART, AND DENNIS, Circuit

Judges.

PER CURIAM:*

AFFIRMED. See 5TH CIR. R. 47.6.

[Date of Entry November 10, 1997]

* Pursuant to 5TH Cir. R. 47.5, the court has determined

that this opinion should not be published and is not precedent except

under the limited circumstances set forth in STH Cir. R. 47.5.4.

2a

AO 245B (3/95) Sheet | - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After Nov. 1, 1987)

V.

CASE NUMBER: 5:95CR50071-10

FRANK HUGHES

Defendant's Attorney

THE DEFENDANT:

pleaded guilty to count (s)

pleaded nolo contendere to count (s)

which was accepted by the court.

x__ was found guilty on count (s) One, Four, Seven and Eight =

after a plea of not guilty.

Date Offense Count

21 USC 841(a)(1) Conspiracy to Distribute Cocaine, and 03/31/95 l

& 846 in Excess of 50 Grams of Cocaine Base

18 USC 1952 Interstate Travel in Aid of Racketeering 12/31/92 4

Enterprises

18 USC 1952 _ Interstate Travel in Aid of Racketeering 11/30/93 7

Enterprises

18 USC 1952 Interstate Travel in Aid Racketeering 12/06/93 8

Enterprises

The defendant is sentenced as provided in pages 2 through __6 __ of this

judgment. The sentence is imposed pursuant to the Sentencing Reform Act of

1984.

The defendant has been found guilty on count (s)

Count (s) (is) (are) dismissed on the motion of the United States.

Pintle, aie Aa enh tw

~—T

3a

IT IS FURTHER ORDERED that the defendant shall notify the United

States Attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs and special assessments

imposed by this judgment are fully paid.

Defendant’s Soc. Sec. No.: 587-20-3839 November 7, 1996

Date of Imposition of Judgment

Defendant’s Date of Birth: 02/10/50 __

04160-043 _/s/ Donald E. Walter _._

Defendant’s USM Number Signature of Judicial Officer

Defendant's Residence Address:

410 Universal _Hon. Donald E. Walter _

United States District Judge

McComb. MS 39648

Defendant's Mailing Address: November 12, 1996

Date

410 Universal Street ATTEST A TRUE COPY: ROBERT H.

SHEMWELL, CLERK U.S. DISTRICT

COURT, WESTERN DISTRICT OF

LOUISIANA

McComb. MS 39648 BY:

Scdammaninatb DATE:

IMPRISONMENT

The defendant is hereby committed to the custody of the United States

Bureau of Prisons to be imprisoned for a total term of 324 MONTHS as to count

one. As to counts four, seven and eight, defendant is committed to the custody of

the Bureau of Prisons for a term of 60 months, to run concurrent with one another,

and concurrent to the term imposed in count one.

The court makes the following recommendations to the Bureau of

Prisons:

X___ The defendant is remanded to the custody of the United States Marshal.

The defendant shall surrender to the United States marshal of this district:

at a.m./p.m. On ___.

____as notified by the United States Marshal.

The defendant shall surrender for service of sentence at the institution

designated by the Bureau of Prisons:

before 2 p.m. on ;

____as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Office.

4a

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at with a certified copy of this

judgment.

United States Marshal

By

Deputy Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on

supervised release for a term of:

5 YEARS as to count one. As per counts four, seven and eight, the term of

supervised release is three yeas, to run concurrent with the term imposed in count

one. ;

The defendant shall report to the probation office in the district to which

the defendant is released within 72 hours of release from the custody of the Bureau

of Prisons.

The defendant shall not commit another federal, state, or local crime.

The defendant shall not illegally possess a controlled substance.

For offenses committed on or after September 13, 1994:

The defendant shall submit to drug abuse treatment as indicated by the

probation office, to include antabuse and drug surveillance, if indicated, and/or

inpatient treatment, until such time defendant is released from supervised release.

The above drug testing condition is suspended based on the court's

determination that the defendant poses a low risk of future substance

abuse. (Check. if applicable.)

4 Abe sae Waires

niet Oet «ih

on lev bes SAINT eg nin Kee nade ME: VAL

Sa

_X____ The defendant shall not possess a firearm as defined in 18 U.S.C. § 921.

(Check, if applicable).

If this judgment imposes a fine or a restitution obligation, it shall be a

condition of supervised release that the defendant pay any such fine or

restitution that remains unpaid at the commencement of the term of

supervised release in accordance with the Schedule of Payments set forth

in the Criminal Monetary Penalties sheet of this judgment.

The defendant shall comply with the standard conditions that have been

adopted by this court (set forth below). The defendant shall also comply with the

additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

The defendant shall not leave the judicial district without the permission of the court or

probation officer:

The defendant shall report to the probation officer and shall submit a truthful and complete

written report within the first five days of each month,

The defendant shall answer truthfully all inquiries by the probation office and follow the

instructions of the probation officer:

The defendant shall support his or her dependents and meet other family responsibilities;

The defendant shall work regularly at a lawful corporation unless excused by the

probation officer for schooling. training, or other acceptable reasons;

The defendant ~_ notify the probation officer ten days prior to any change in residence

or employmen

The defendant shall refrain from excessive use of alcohol;

The defendant shall not frequent places where controlled substances are illegally sold,

used, distributed. or administered;

The defendant shall not associate with any persons engaged in criminal activity. and shall

not associate with any person convicted of a felony unless granted permission to do so by

the probation officer

The defendant shall permit a probation officer to visit him or her at any time at home or

elsewhere and shall permit confiscation of any contraband observed in plain view by the

probation officer:

The defendant shall notify the probation officer with seventy-two hours of being arrested

or questioned by a law enforcement officer:

The defendant shall not enter into any agreement to act as an informer or a special agent

of a law enforcement agency without the permission of the court:

As directed by the probation officer, the defendant shall notify third parties of nsks that

may be occasioned by the defendant's a criminal record or personal history or

charactenstics. and shall permit the probation officer to make such notifications and to

confirm the defendant's compliance with such notification required.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in

accordance with the schedule of payments set forth on Sheet 5, Part B.

1, 4, 7,8 $50.00ea

If Applicable, restitution am unt ordered pursuani to plea agreement

Totals: $200.00 $ $

FINE

The above fine includes any costs of incarceration and/or supervision in

the amount of

The defendant shall pay interest on any fine of more than $2,500 unless

the fine is paid in full before the fifteenth day after the date of judgment, pursuant

to 18 USC § 3612(f). All of the payment options on Sheet 5, Part B may be

subject to penalties for default & delinquency pursuant to 18 USC § 3612 (g).

The court has determined that the defendant does not have the ability to

pay interest and it is ordered that

The interest requirement is waived.

The interest requirement is modified as follows:

RESTITUTION

The determination of restitution is deferred in a case brought under

Chapters 109A, 110, 110A & 113A of Title 18 for offenses committed on or after

09/13/1994, until ____. An Amended Judgment in a Criminal Case will be entered

after such determination.

The defendant shall make restitution to the following payees in the

amounts listed below.

tA engi Leh

7a

If the defendant makes a partial payment, each payee shall receive an

approximately proportional payment unless specified otherwise in the priority order

or percentage payment column below.

Amount of Priority Order or

*Total Restitution Percentage of

Name & Address Payee AmountofLoss _Ordered ___ Payment

* Findings for the total amount of losses are required under Chapters 109A, 110,

110A 7 113A of Title 18 for offenses committed on or after September 13, 1994.

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment; (2) restitution; (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal monetary penalties shall be

due as follows:

X in full immediately;

$ immediately, balance due (in accordance with C, D, or

E); or

not later than , Or

in installments to commence days after the date of this

judgment. In the event the entire amount of criminal monetary

penalties imposed is not paid prior to the commencement of

supervision, the U.S. probation officer shall pursue collection of

the amount due, and shall request the court to establish a

payment schedule if appropriate: or

E in (e.g. equal, weckly, monthly, quarterly) installments

of $ soe a period of year (s) to commence

days after the date of this judgment.

ww >

on

The National Fine Center will credit the defendant for all payments previously

made toward any criminal monetary penalties imposed.

Special instructions regarding the payment of criminal

monetary penalties:

The defendant shall pay the cost of prosecution.

The defendant shall forfeit the defendant’s interest in the following

property to the United States:

period of imprisonment All mal monary penal pyment 1 ak to the Uni —

20544, except those ae ear te Sovane Hlannehatitepcaitiiy

Program, If the National Fine Center is not operating in this district, all criminal monetary penalty

payments are to be made as directed by the court, the probation officer, or the United States attorney.

STATEMENT OF REASONS

The court adopts the factual findings and guideline application in the

presentence report.

OR

The court adopts the factual findings and guideline application in the

presentence report except

Guideline Range Determined by the Court:

Total Offense Level: J]

Criminal History Category: _4] _

Imprisonment Range: __324 to __ 405 ___ months

Supervised Release Range: _5_ years

Fine Range: $25,000 __ to $4.0000,000_ _

X___Fine waived or below the guideline range because of inability to

pay.

Total Amount of Restitution: $

Aidit be Gs.

Pied wi

Ahi Lat Ninn NI DRM GE Nes Cy yen

9a

The sentence is within the guideline range, that range does not exceed 24

months, and the court finds no reason to depart from the sentence called for by

application of the guidelines.

OR

The sentence is within the guideline range, that range exceeds 24 months,

and the sentence is imposed for the following reason (s):

OR

____ The sentence departs from the guideline range

Upon motion of the government, as a result of defendants

substantial assistance.

For the following reason (s):

10a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA *CRIM. NO. 95-50071-10

VERSUS *

FRANK HUGHES *JUDGE DONALD E.

WALTER

ORDER OF FORFEITURE

WHEREAS, in Count 14 of the Superseding Indictment, the

United States sought forfeiture, pursuant to 21 U.S.C. §853 of

$1,500,000.00 as property constitution, or derived from proceeds the

defendant obtained directly or indirectly, as the result of violations of

conspiracy to distribute cocaine and cocaine base, or property used or

attempted to be used in any manner or part to commit or facilitate the

commission of conspiracy to distribute cocaine and cocaine base;

AND WHEREAS, at the conclusion of the trial in this case,

the jury returned a Special Verdict of Forfeiture finding $350,000.00

subject to forfeiture as property involved in the conspiracy to

distribute cocaine and cocaine base, or as property traceable to such

violations;

THEREFORE, the United States is entitled to an Order of

Forfeiture of this amount of money pursuant to 21 U.S.C.§ 853 and

Rule 32 (d) (2) of the Federal Rules of Criminal Procedure;

ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED:

3 Based upon the jury verdict of guilty of the defendant

as to Count 1, the United States is authorized to seize $350,000.00

belonging to the defendant, Frank Hughes, and it is forfeited to the

United States for disposition in accordance with the law, subject to the

provisions of 21 U.S.C. §853 (n).

lla

y That pursuant to 21 U.S.C. §853(n), United States

Marshal forthwith shall publish once for three successive weeks in a

newspaper of general circulation, notice of this Order, notice of the

Marshal’s intent to dispose of the property in such manner as the

Attorney General may direct; and notice that any person, other than the

defendant, Frank Hughes, having or claiming a legal interest in the

forfeited property must file a petition with this Court within thirty (30)

days of the final publication of notice or of receipt of actual notice,

whichever is earlier.

This notice shall state that the petition shall be for a hearing to

adjudicate the validity of the petitioner’s alleged interest in the forfeited

property, shall be signed by the petitioner under penalty of perjury;

and shall set forth the nature and extent of the petitioner’s right, title or

interest in the forfeited property and any additional facts supporting

the petition’s claim and the relief sought.

The United States may also, to the extent practicable, provide

direct written notice to any person known to have alleged an interest in

the property that is the subject of the Order of Forfeiture, as a

substitute for published notice as to those persons so notified.

That upon adjudication of all third-party interests, this Court

will enter a Final Order of Forfeiture pursuant to 21 U.S.C. §853(n),

in which all interests will be addressed.

THUS ORDERED AND SIGNED this __6_ day of

November, 1996.

/s/ Donald E. Walter

DONALD E. WALTER

United States District Judge

12a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA *

7

VERSUS * CRIMINAL NO. 95-50071-10

* DISTRICT JUDGE WALTER

FRANK HUGHES *MAGISTRATE JUDGE PAYNE

FINAL JUDGMENT OF FORFEITURE

WHEREAS, on November 7, 1996, this Court entered an

Order of Forfeiture pursuant to the provisions of 21 U.S.C. § 853

forfeiting $350,000.00 in proceeds based upon the trial and conviction

of Frank Hughes.

AND WHEREAS, on April 23 and 30 and May 7 of 1997, the

United States published in The Times, a Shreveport newspaper of

general circulation, notice of this forfeiture and of the intent of the

United States to forfeit the $350,000.00 and further notifying all third

parties of their right to petition the Court within thirty (30) days for a

hearing to adjudicate the validity of their alleged legal interest in the

property,

AND WHEREAS, it appears from the record that no claims,

contested or otherwise, have been filed for any of the properties

described in this Court’s November 6, 1996 Order of Forfeiture;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

That all right, title, and interest to the $350,000.00 in proceeds

is hereby condemned, forfeited and vested in the United States of

America and shall be seized and disposed of according to the law by

the United States Marshal’s Service.

13a

The Clerk is hereby directed to send copies of this Order to all

counsel of record.

SO ORDERED this 30th day of September, 1997, at

Shreveport, Louisiana.

—/s/ Donald E. Walter

DONALD E. WALTER

United States District Judge

l4a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-31223

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FRANK HUGHES

Defendant - Appellant

Appeal from the United States District Court for the

Western District of Louisiana, Shreveport

ON PETITION FOR REHEARING

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above case is Denied.

ENTERED FOR THE COURT:

_/s/ James L. Dennis

United States Circuit Judge

[Date of Entry December 17, 1997]