IN THE UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

XXX XXX,

Defendant-Appellant.

)

CA. No. 98-10286

D.C. No. 97-0359-VRW

APPELLANT'S REPLY BRIEF

BARRY J. PORTMAN

Federal Public Defender

GEOFFREY A. HANSEN

Chief Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant-Appellant XXX

FACTS

There are several "factual" claims made by the government in its statement of facts which are not contained in the record before this Court. XXX will make reference to this supposed "facts" in the course of discussing the government's legal arguments.

ARGUMENT

A. Officer Cunningham Failed To Verify That His

Informants Provided Information About Mr. XXX

XXX argued in his brief to this Court that Officer Cunningham failed to determine whether the person his informants were giving information about was the person he knew to be XXX XXX.⁽¹⁾

The government never disputes that such basic identification procedures were not followed, even though Cunningham obviously had access to a picture of XXX and had six months to show it to his informants. Rather, the government asserts almost in passing on pp. 15-16 of its brief that this claim should fail because "the informants, however, knew XXX as 'Tone' and 'Samoan Tony', and Officer Cunningham explicitly stated in the search warrant that he also knew XXX by these monikers." Gov. Brief at 15-16. This claim by the government is factual, and there is absolutely no support for it in the record. Nowhere do the informants reveal that the person they "knew" as "Tone" or "Samoan Tony" was the person Cunningham called "Tone" or "Samoan Tony," nor that this person was Mr. XXX. The government, in addition to this incorrect factual assertion, alleges that there is "no credible basis for XXX's suggestion that the informants were referring to someone other than him [XXX]." Gov. Brief at 16.

With all due respect to the government, it is not the defendant's burden to show that there could have been someone else whom the informants were talking about. Because the government failed to show that the informants were referring to the defendant, the affidavit was facXXXlly deficient.

B. The Sources Used By Officer Cunningham

To Establish Probable Cause Were UnrelXXXble

XXX argued in his brief that because of the unusual way in which Cunningham referred to his informants, there was no way for a court to determine anything about the informants except that they were both convicted felons. Moreover, he noted that one of the informants used for the October search warrant had provided inaccurate information in June, and yet that fact was never revealed in the October affidavit.

In response, the government claims that "it appears that Officer Cunningham used the word relXXXble in order to specifically vouch for the relXXXbility of one of the informants, not, as XXX suggests, to discredit the other." Gov. Brief at 14-15. Unfortunately, the government does not refer this Court to the record to support this factual assertion because Cunningham was never put on the stand at an evidentXXXry hearing to explain what he meant by his use of terms in this virtually incomprehensible affidavit. Moreover, one of these informants was the informant who claimed to Cunningham in June that XXX lived at a different address and possessed a .380, a shotgun, and a MAC 10. ER 15. When the apartment was searched no guns were found, although one .380 bullet was found in the apartment.⁽²⁾ Not only did Cunningham not reveal these facts in October 1997, but the record leaves one to speculate whether the informant who falsely claimed that XXX had guns in another apartment in June is the informant who Cunningham called "relXXXble" in October.

XXX next went to some length in his brief to analyze specifically what exactly the various tips revealed in this case. See XXX's Opening Brief at 23-28. The government chooses to answer only three of these arguments. The government claims initXXXlly that "security officers with Personal Protection Services saw XXX regularly go in and out of 859 Ellsworth St." Gov. Brief at 15. First, this fact does not corroborate illegal gun possession by XXX. Second, the only officer identified in the affidavit, Corporal Island, does not indicate even a general time frame for his observations of XXX "regularly" going in and out of 859 Ellsworth. See ER at 7.⁽³⁾ Thus, no security guards corroborated the informants' claims.

The government next argues that "anonymous phone calls to the police department also confirmed some of the informants' allegations of XXX's use of firearms around the Alemany Housing Projects." Gov. Brief at 15. Again, as XXX explained in his brief, this anonymous tip is one of the most bizarre aspects of the affidavit. Supposedly, police got an anonymous call on October 27, 1997 that XXX possessed a gun, and that the confidentXXXl informant saw XXX with the gun. ER 6. However, Cunningham explains that police were notified "but were unable to apprehend 'Tone' who ran into 859 Ellsworth with this weapon." Id. In addition, the tip only referred to a black male, not XXX. CT 51 at 2.

If this tip was valid and corroborated and officers knew that XXX was illegally possessing a gun and was in a specific apartment, how could it be that they were unable at the least to question XXX at that location when they arrived at the scene? As XXX unsuccessfully argued below, the affidavit here when fairly read cannot as a whole give rise to a conclusion that the various tips were corroborated.

Finally, the government alleges that "many of the informants' allegations were corroborated by Cunningham, who was involved in an investigation in which XXX was identified as firing a gun at someone and then hitting him with the firearm." Gov. Brief at 15.

XXX wishes the government would have been more specific as to which of the "many" informant allegations were verified by Cunningham. Reviewing the affidavit, XXX sees but one - that XXX went into 859 Ellsworth "as recently as 10/26/97." See ER 7. Cunningham corroborated no other aspects of the tips given him by his informants. Indeed, Cunningham had heard from a third informant that XXX sold drugs from his car, but when he stopped the car on October 26, 1997 he apparently was unable to corroborate this tip. See ER 7.

In sum, the warrant was totally deficient.

C. No Probable Cause Existed To Conclude That XXX

Stored Guns Or Drugs At 859 Ellsworth When The

Warrant Was Sought

The defendant argued inter alXXX in his third argument that no evidence was contained in the affidavit which supported the inference that XXX kept guns at 859 Ellsworth. See XXX's Opening Brief at 28. The government argues, without reference to any authority, that because people saw XXX with guns on two or three occasions before the search and XXX had been seen going into 859 Ellsworth, the state court judge could assume that XXX stored guns there. Gov. Brief at 16.

There are a number of problems with this claim. The only claim Officer Cunningham makes in the affidavit is that "having worked this area for over four years, I believe that 859 Ellsworth is being used to store illegal weapons." ER 7. Such an overly generalized and non-specific claim was rejected by the Sixth Circuit in United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994)(ascertain without evidentXXXry basis merely a "guess"). Cunningham's claim here that due to his four years of experience he believed guns were stored at 859 Ellsworth suffers from exactly the same flaw.

Indeed, the merit of the Sixth Circuit's concern about such broad generalizations is supported by the record in this case. In June, Officer Cunningham claimed that "from my training and experience and having worked this area for four years, it is my opinion that 995 is being used to store illegal weapons." ER 16. Of course, this opinion by Officer Cunningham turned out to be dead wrong, as no guns were stored in 995 Ellsworth as Cunningham believed they would be. Clearly, his claim alone was insufficient to lead a state court to legitimately conclude that XXX stored guns at 859 Ellsworth.

D. The Search Warrant Was Overbroad

XXX argued in his original brief that the search warrant here was overbroad because there was no cause to conclude that XXX sold drugs from 859 Ellsworth, and yet the search warrant allowed for a drug search and virtually anything else. See ER 5. In response, the government alleges that an informant told Cunningham that XXX sold drugs from his car, and that under Ninth Circuit law such a claim would allow police to search XXX's residence. Gov. Brief at 17. This claims fails for a number of reasons. First, the "tip" was that XXX stored crack in a "hide-a way box" in the floorboard of the car, and Cunningham claimed he stopped this very car four days before he swore out the affidavit and never explains whether in fact the car contained drugs. ER 7. Second, even Cunningham does not claim that drugs were stored at 859 Ellsworth; rather, his own affidavit indicates that he "believed" that XXX's car was being used to store crack cocaine, not 859 Ellsworth. See ER 7.

In sum, the tip was from an informant of unknown relXXXbility, was not corroborated when Cunningham had the opportunity to do so, and even Cunningham concluded that only XXX's car would contain drugs. The search warrant authorizing the search 859 Ellsworth for drugs was overbroad.

Nor was the search "harmless" as is suggested by the government in its brief. Gov. Brief at 17 n.4. Although no drugs were admitted at trXXXl, the drug search authorization allowed the seizure of clothes indicating residency. See ER 5. Clothes, shoes, and medical records seized under this authorization were admitted at trXXXl, and were a crucXXXl part of the government's case. See Gov. Brief at 26. Thus, the overbroad nature of this warrant was not harmless error.

E. No "Good Faith Exception" Justified This Search

XXX argued below and in his brief that no good faith was involved in this case which would excuse Officer Cunningham's failure to clearly report all of the facts known to him in his affidavit to the state court. In response, the government first claims that Cunningham's affidavit was shown to a state district attorney. Unfortunately, this assertion is not supported anywhere in the record, and is not a valid factual claim.

Second, a claim that a police officer is entitled to claim good faith must necessarily fail if the officer lies or omits facts to a judge reviewing the affidavit. Here, Cunningham totally failed to mention the unsuccessful search in June that was based upon a tip from at least one of the informants identified in the October affidavit.

The only place where the government addresses this issue is on page 14 n.3 of its brief, where it contends that the district court correctly determined that even though "pertinent information was omitted from the October 1997 warrant application," this information would not have changed the state court's decision to issue a warrant. See ER 30.

With great respect to the district court, XXX does not understand how such a conclusion could have been reached if the Court and the defendant did not even know which of the informants identified in the October affidavit had given the inaccurate information in June. Moreover, it is not just the informant's credibility that was at issue with respect to the inaccurate June affidavit. One must remember that Cunningham also opined, based upon his years of experience and his dealings with the informants, that a handgun, a shotgun, and a MAC 10 would be found at 995 Ellsworth in June. This "expert" opinion proved wrong. This clearly should have been revealed in the October application.

In sum, the district court below issued an unsatisfactory and cursory oral ruling denying the defendant's motion to suppress and to be given a Franks hearing.

B. The Limitations Of XXX's Cross-Examination Of

Angelique Jordan Deprived XXX Of A Fair TrXXXl

As was made clear in XXX's opening brief, Angelique Jordan was the key witness in this prosecution. As is also evident from XXX's brief, defense counsel thoroughly investigated Ms. Jordan's background to determine whether she had committed perjury in the past and had a motive to testify favorably for the government. That investigation uncovered an amazing amount of materXXXl which indicated that Ms. Jordan had falsely signed under penalty of perjury innumerable government, court and other documents. Moreover, counsel discovered that Ms. Jordan was subject to prosecution by the government for fraud, a fact the government was or should have been fully aware of. See CR 41, ER 198-99.

None of these facts were presented to the jury. Rather, the Court ruled that such matters were "wholly collateral to the trXXXl here," and allowed no cross-examination on these subjects. RT 140.

The government repeats the district court's ruling in its brief by claiming that "Ms. Jordan's alleged failure to report her income to public assistance agencies was not relevant to the charges against XXX." Gov. Brief at 21. If this claim was true, no witness could be asked whether she had lied in some unrelated proceeding or had signed some unrelated document which required a signature under penalty of perjury. The point of the proffered cross-examination here was not to show that Ms. Jordan was a bad person; rather, the defense was trying to show that Ms. Jordan used different names, had obtained different socXXXl security cards, and had lied in numerous documents when called upon to sign the documents pursuant to the same oath she took before testifying in XXX's trXXXl. In short, she had lied in respect to significant matters. The government's argument completely misses the point; a witness who testifies always puts her credibility and reputation for truthfulness at issue, and the defendant is entitled to attack that credibility by showing that the witness has regularly lied in the past. Counsel for XXX could not do that here.

Indeed, the cases cited by the government in its brief either prove the defendant's point or are irrelevant. The government first cites United States v. Knigge, 832 F.2d 1100 (9th Cir. 1987), for the proposition that the Court can limit impeachment of a witness by extrinsic evidence. Gov. Brief at 20. This claim is absolutely true. However, defense counsel was stopped here from even asking whether Ms. Jordan had obtained socXXXl security cards under different names, was currently engaged in fraudulent activity, or had lied on court and other documents signed under penalty of perjury. Fed.R.Evid. 608(b) clearly contemplates that a party may ask a witness whether she has lied in the past, although the rule indicates that the party must live with the answer given. This very issue was addressed in United States v. Leake, 642 F.2d 715, 718 (4th Cir. 1981), where the Court held that Fed.R. Evid. 608 allows inquiry into "instances of misconduct that are 'clearly probative of truthfulness or untruthfulness,' such as perjury, fraud, swindling, forgery, bribery, and embezzlement." In Leake, the defendant was prohibited from cross-examining the government's main witness about fraudulent activities which the witness had engaged. Id. at 719. The Court held that such a restriction was reversible error, insofar as the profferred cross-examination was proper and the witness was the only substantive witness against the defendant. Id.

Similarly here, Ms. Jordan was the key government witness who should have been subject to cross-examination on past incidents of perjury, fraud, forgery, and embezzlement. It is worth noting here that XXX's counsel never attempted to prove up these incidents by extrinsic evidence, because she was not given the chance to ask any questions about these incidents. The government then cites a number of cases for the proposition that district courts have considerable discretion to restrict cross-examination on any topic. Gov. Brief at 20. Although this general claim may again be true, this Court has also held that "when the case against a defendant turns on the credibility of a witness, the defendant has broad cross-examination rights." United States v. Ray, 731 F.2d 1361, 1364 (9th Cir. 1984). The government then cites this court toHughes v. Raines, 641 F.2d 790, 793 (9th Cir. 1981) for the rule that "a defendant's right to attack a witness' general credibility enjoys less protection that his right to develop the witness' bXXXs." Gov. Brief at 21.

Again, the defendant fully agrees with this claim. What the government fails to note is that one of the reasons why the defendant wished to cross-examine Ms. Jordan about her fraudulent activity was because this activity involved violations of federal law for which she was not being prosecuted by the government, on whose behalf she was testifying. In Ray, this court ruled that Fed.R.Evid. 608(b)"does not bar introduction of evidence to show that the witness is bXXXsed." Ray, 731 F.2d at 1364. Thus, Ms. Jordan's bXXXs in favor of the government was a proper subject of inquiry, and the restriction of this cross-examination was reversible error. As for the few factual arguments presented by the government, the gist of its claims are that Ms. Jordan's testimony on the merits involved activities other than her fraudulent and untruthful activities, and thus any inquiry into whether she was an accomplished lXXXr was irrelevant. Gov. Brief at 21. This argument shows such a profound misunderstanding about the purpose of cross-examination that it merits no further response. The government then claims that XXX's counsel had ample opportunity to attack Jordan's credibility and "expose any bXXXs against him [XXX]." Gov. Brief at 21. Of course, defense counsel was not allowed to show Jordan's bXXXs in favor of the government, an equally relevant topic for inquiry. And in what can only be described as a telling admission by the government, it essentXXXlly concedes that its star witness was anything other than honest while testifying: " The record shows that Ms. Jordan repeatedly contradicted or disowned her direct testimony during cross-examination." Gov. Brief at 22. It is always noteworthy when the government seeks to limit cross-examination of a witness and then argues on appeal that the error was harmless because "aggressive" defense counsel nonetheless showed what a lXXXr the witness really was.

The restriction of the cross-examination of Ms. Jordan was reversible error.

G. The Admission Of The Opinion Of A Second

Non-Testifying Government Expert Was Error

If there was a second witness who was close in importance to Ms. Jordan, it was the government's fingerprint expert Officer Shouldice. Shouldice was a witness of questionable qualifications. He was not a certified latent examiner. RT 355. He had never testified as a fingerprint expert in federal court. RT 354. When discussing whether to even allow Shouldice to testify the district court noted that "well, it appears that the witness has sufficient background, training and experience to deal with the fingerprint identification, although not that, perhaps that we are accustomed to seeing, but nevertheless sufficient." RT 362.

Against this backdrop, the government's introduction of hearsay testimony that Shouldice's fingerprint identification had been reviewed and approved by a supervisor was clear error. As was noted in XXX's opening brief, the defendant repeatedly asked for the disclosure of a written summary of, inter alXXX, the basis and reasons for any of Shouldice's opinions. The government never claimed in response to this request that Shouldice would rely on a review of his work by anyone else. See ER 36. Thus, there was no notice given the defendant before trXXXl that Shouldice relied on another supervisor's conclusions when forming his own opinion.

Nonetheless, the government now argues that the hearsay testimony was admissible under Fed.R.Evid. 703 because Shouldice relied on the other officer's opinion. Gov. Brief at 23-24.

If this claim is true, the government violated Rule 16 and the testimony should have been excluded on that ground. The reason why defense counsel did not argue this issue below is because Shouldice never testified that he relied upon the other officer's independent review of his conclusion to form his opinion. See ER 176-77. The government has thus created a justification for its misconduct that is not supported by the record. Shouldice merely testified that it was "standard practice" to have another person verify his findings. ER 177-78. Insofar as there is no "standard practice" exception to the hearsay rule, the testimony was inadmissible.

The government attempts to argue that the error was harmless because defense counsel effectively cross-examined Shouldice as to his qualifications. Gov. Brief at 24-25. Again, the argument misses the point. Because Shouldice's qualifications were so weak, the fact that he had someone else verify his opinion was of critical consequence. The introduction of the hearsay evidence was therefore reversible error.

H. The Evidence Was Insufficient To Support The Guilty Verdict The defendant stands by the arguments he raised in his opening brief, insofar as the government essentXXXlly claims that if the jury believed Ms. Jordan, "XXX was guilty." Gov. Brief at 17 n.7. This argument merely underscores why the defendant should have been given the opportunity to show how dishonest and untruthful she really was.

For these reasons, XXX respectfully asks this Court to reverse this case on the grounds presented.

Dated: December 29, 1998.

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

GEOFFREY A. HANSEN

Chief Assistant Federal Public Defender

1. The District Court addressed this issue when it denied the defendant's motion.

2. In its statement of facts, the government erroneously claims that police found three bullets "which matched the type of guns described in the affidavit." Gov. Brief at 6. Again, this claim is not true: two of the bullets discovered were 9mm and there was no evidence that these bullets matched the other guns listed in the affidavit.

3. It is noteworthy that just a few months before Cunningham had claimed through reference to other "sources" that XXX resided at a different apartment. See ER at 15-16.