IN THE UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

XX XXXXX,

Defendant-Appellant.

)

CA. No. 00-00000

D.C. No. CR 99-00014-MJJ

Northern California

(San Francisco)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

APPELLANT=S OPENING BRIEF

BARRY J. PORTMAN

Federal Public Defender

HILARY A. FOX

Assistant Federal Public Defenders

1301 Clay Street, Suite 200C

Oakland, CA 94612

Tel: (510) 637-3500

Counsel for Defendant-Appellant XXXX

ISSUES PRESENTED FOR REVIEW

1. Did the district court err in permitting the government to introduce through its expert "pay-owe sheets" that were otherwise inadmissible, solely on the grounds that the expert was relying on the inadmissible evidence in the formulation of his opinion?

2. Did the district court err in permitting the government=s expert witness to testify regarding the defendant=s mental state regarding his reason for possessing drugs and a weapon?

3. Where the undisputed evidence established that defendant was a drug addict who was carrying personal use paraphernalia with his drugs, and where the government argued at trial that defendant, as a drug user, must have also been selling drugs, did the district court err in imposing sentence as if none of defendant=s drugs were for personal use?

4. Did a prosecution under 18 U.S.C. ' 922(g) -- felon-in-possession of a firearm -- exceed Congress= jurisdiction under the Commerce Clause where the only link to commerce is the fact that the firearm once crossed a state line?

PETITION FOR INITIAL HEARING EN BANC

Pursuant to Federal Rule of Appellate Procedure 35, appellant-defendant XXXX hereby requests that the instant case be heard initially en banc, with regard to the following issues:

1) Whether the Supreme Court=s Lopez trilogy -- United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 120 S. Ct. 1740 (2000), and Dewey Jones v. United States, 120 S. Ct. 1904 (2000) (hereinafter "Dewey Jones"), require reconsideration of this Court=s decisions in United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995), and United States v. Michael Jones, 231 f.3D 508 (9th Cir. 2000) (hereinafter "Michael Jones"). In Hanna and Michael Jones, this Court concluded that a conviction under Title 18 U.S.C. ' 922(g) requires only a "minimal nexus" between the regulated item and interstate commerce. The Supreme Court, by contrast, has concluded that a regulated item must "substantially affect" interstate commerce to fall within Congress= jurisdiction over items "affecting" commerce. Initial hearing en banc will allow the Court to modify its earlier Commerce Clause jurisprudence and correct its erroneous holding in Michael Jones, consistent with Supreme Court authority.

2) Whether consideration by the full Court is necessary to secure and maintain uniformity of the Court=s decisions, because the holding in Hanna conflicts with the Court=s earlier decision in United States v. Nukida, 8 F.3d 665 (9th Cir. 1993). Specifically, Hanna held that the mere showing that a regulated item once crossed state lines at any previous time, no matter how remote, is sufficient to establish the requisite nexus to interstate commerce. Nukida, however, mandates that the link to commerce be predicated on a showing that the regulated item recently crossed state lines. Hanna should be reconsidered en banc to resolve this conflict.

STATEMENT OF JURISDICTION

A. Jurisdiction in the District Court

On November 3, 1998, a complaint was filed in the United States District Court for the Northern District of California charging the defendant with violating 18 U.S.C. ' 922(g)(1), being a felon in possession of a firearm and ammunition. CR 1.^[1] On January 5, 1999, an amended complaint was filed, containing the same charge but citing a different felony prior in the complaint affidavit. CR 10. On January 11, 1999, an indictment was filed charging the defendant with one count of unlawful possession of a firearm by a felon. CR 13. On March 24, 1991, the grand jury returned a superseding indictment charging the defendant with: two counts of unlawful possession of a firearm by a felon; possession of controlled substances with intent to distribute; and possession of a firearm during and in relation to a drug trafficking crime. CR 20; ER 1. The district court had jurisdiction under 18 U.S.C. ' 3231.

B. Jurisdiction in the Court of Appeals

This Court has jurisdiction over the defendant's appeal from a final judgment of the United States District Court, Northern District of California, under 28 U.S.C. '' 1291 and 1294(1).

C. The Notice of Appeal was Timely Filed

The district court sentenced the defendant on October 12, 2000. The judgment was issued on October 20, 2000, and entered on the criminal docket on October 23, 2000. CR 98; ER 184. The defendant filed a notice of appeal on October 23, 2000. CR 99; ER 190. His appeal is timely under Federal Rule of Appellate Procedure 4(b).

BAIL STATUS

To the best of counsel's knowledge, the defendant currently is incarcerated at FCI-Sheridan, Sheridan, Oregon, serving the sentence of 144 months imprisonment imposed in this case. There is no outstanding motion for bail pending appeal.

STATEMENT OF THE CASE

A. Procedural Background

On June 6, 1998, in San Francisco, California, the defendant was arrested for unlawful possession of a gun and ammunition. PSR at & 4.^[2] He was charged in state court. PSR at & 5. He failed to make an appearance and a bench warrant issued for his arrest. PSR at & 5. On November 24, 1998, the defendant was arrested pursuant to the bench warrant. PSR at && 5, 7. At the time of his arrest, he was seen carrying a backpack. PSR at & 7. Upon searching the backpack, the officers found drugs, a scale, drug paraphernalia, and a gun. PSR at & 7. The defendant was charged in federal court with violating 18 U.S.C. ' 922(g)(1), felon in possession, based on the June 6, 1998, arrest. CR 1, 13. In a superseding indictment, the government added charges for possession of a firearm by a felon, possession of drugs for distribution, and possession of a firearm in connection with a drug trafficking crime, all arising out of the November 24, 1998, arrest. CR 20; ER 1.

On July 8, 1999, the defendant pleaded guilty to the first count of the indictment, which charged him with unlawfully possessing a firearm, in violation of 18 U.S.C. 922(g)(1), on June 6, 1999. CR 53. Trial on the remaining three counts began on July 12, 1999. CR 58.

The defendant did not challenge the constitutionality of 18 U.S.C. ' 922(g)in the district court.

1. In limine motion to exclude government expert

The defendant moved in limine to exclude the government's proposed expert witness from the Drug Enforcement Agency (AD.E.A.@). CR 33. The government proposed to have D.E.A. Agent Michael Heald opine that the drugs in the backpack were possessed for the purpose of distribution, not personal use, and that the gun was possessed in connection with the drug trafficking. CR 28; RT 7/7/99 at 13; ER 5.

The district court denied defendant=s motion to exclude the expert. RT 7/8/99 at 3; ER 7.

2. Motion in limine to exclude anonymous ledger

The defendant also moved in limine to exclude admission of handwritten notes found in the backpack the defendant carried, including pages the government referred to as pay-owe sheets, on the grounds that these constituted inadmissible hearsay. CR 42. The district court held that the notes were hearsay. RT 7/8/99 at 6-7; ER 8-9. The court denied defendant=s motion, however, on grounds that the ledger was part of the Acalculus of factors@ upon which the D.E.A. agent relied for his opinion that the drugs were possessed for distribution. Id. The court therefore ruled that the ledger was admissible for the non-hearsay purpose as it related to the expert=s opinion. Id. The court stated that it would instruct the jury to consider the ledger only as it relates to the expert=s opinion, and for no other purposes. Id.

3. Trial

The trial began on July 12, 1999. CR 58. At trial, the witnesses for the government included the police officers who arrested the defendant; Anita Davis, who was with the defendant shortly before he was arrested; D.E.A. Agent Michael Heald; and A.T.F. Agent Anthony Costakis. The defendant testified on his own behalf, as did Dr. Gregory Hayner, an expert on drug users. On July 15, 1999, the jury found the defendant guilty of counts 2, 3, and 4. CR 60.

4. Rule 29 Motions

At the close of the government=s case, and again after the return of the verdict, the defendant moved for judgment of acquittal on counts 2 (possession of drugs with intent to distribute) and 3 (use of a firearm in connection with drug trafficking). RT 7/14/99 at 349, 383-89; ER 79, 101-07; RT 7/15/99 (II) at 9-10; ER 150-51; CR 68. The district court denied those motions. RT 7/15/99 at 432; ER 115; RT 6/22/00 at 3-6; ER 153-56.

5. Sentencing

The defendant's sentencing hearing began on June 22, 2000 and was continued to October 12, 2000. CR 90, CR 96. On October 12, 2000, the district court sentenced the defendant to 144 months imprisonment. CR 96; RT 10/12/00 at 48-49; ER 182-83. Defendant filed a timely notice of appeal. CR 99; ER 190.

B. Evidence at Trial

The defendant stood trial on three charges: unlawful possession of a firearm, in violation of 18 U.S.C. ' 922(g)(1); possession with intent to distribute methamphetamine, cocaine, and crack cocaine, in violation of 21 U.S.C. ' 841(a)(1); and carrying a firearm during and in relation to a drug crime, in violation of 18 U.S.C. '924(c). CR 20, 58. The defendant admitted that he possessed drugs and a gun at the time of his arrest, and stipulated to the fact of his prior felony conviction. RT 7/12/99 at 71; ER 11; RT 7/14/99 at 264-65;

ER 46-47. Thus, for the second and third charges, the only element left for the government to prove was the defendant=s mental state: did the defendant intend to distribute the drugs, and did he have the gun for the purpose of facilitating a drug trafficking crime? For the fourth charge, only the interstate nexus element was left to be established.

1. The Arresting Officers

The government established that when the defendant was arrested, he was carrying LSD, marijuana, and 13.4 grams of a substance containing powder cocaine in his pockets.^[3] RT 7/12/99 at 137, 155; ER 26, 28. He also had six rocks of crack cocaine packaged in small baggies and weighing a total of 1.78 grams. Id. at 155; ER 28. The backpack he was carrying contained a loaded gun, a packet of 13.8 grams of brown methamphetamine, a packet of 25.98 grams of white methamphetamine. Id. at 84-85, 155; ER 13-14, 28. The backpack also contained a pipe, four Bic lighters, a butane torch and fuel, rolling papers, a small gold-colored spoon, a compact mirror, and a three-ring notebook with pages that the government contended were pay-owe sheets. Id. at 99-108; ER 15-24. Inside the backpack was a fanny pack containing women's cosmetics. Id. at 104; ER 19. The backpack also held a zip wallet, which contained a small electronic scale and identification papers for Jessica Figure. Id. at 105-06; ER 21-22.

2. Anita Davis

The government called as a witness Anita Davis, the woman whom the defendant was with shortly before his arrest. She recognized the scale as a broken one that she had owned but had given to the defendant previously so that he could repair it. RT 7/12/99 at 165-66; ER 31-32. She also testified that the fanny pack looked familiar and that she had owned many like it, though she did not know if that particular pack was hers. Id. at 171-72; ER 36-37.

3. D.E.A. Agent Heald

The government=s star witness was the agent from the Drug Enforcement Agency, Michael Heald, who testified as an expert in drug distribution. Agent Heald opined that, based on the weight, the brown methamphetamine, the white methamphetamine, and the powder cocaine were all possessed for distribution, not for personal use.^[4] RT 7/14/99 at 276, 297; ER 49, 64. He stated that, based on his conversations with informants and others, a person could not use more than one gram of methamphetamine a day without becoming essentially dysfunctional. Id. at 276-77; ER 49-50. Agent Heald described the paraphernalia used to smoke methamphetamine as a small glass pipe which is heated with a butane lighter until the methamphetamine becomes smokable vapor. Id. at 280-81; ER 51-52.

In response to questioning by the government, Agent Heald testified that it was not unusual at all for a user of methamphetamine to become a distributor of methamphetamine. Id. at 281; ER 52. He described the usual process by which people who are using methamphetamine become involved in distribution as their use increases. At first, the user will acquire larger amounts of the drug and sell some to friends to offset the cost of the habit. Id. at 282; ER 53. With increasing use, the user may become an addict and become less well able to function. Id. The addict may lose both employment and family support. Id. At that point, the user will have to sell the drug in order to acquire not only the drug for personal use but also for the other necessities of life. Id. at 282-83; ER 53-54. In this way, the user becomes a full-time seller or distributor of the drug. Id. Agent Heald testified that possession of drug paraphernalia along with the drugs supported his opinion that the drugs were for distribution, because Aabusers oftentimes are distributors.@ Id. at 300; ER 66. See also, id. at 331-32; ER 72-73.

Agent Heald opined that a user who is not involved in distribution would be unlikely to have a scale. Id. at 283; ER 54. When asked whether that changed when a user "graduate[d] to a distributor," Agent Heald replied that a scale is an essential part of the enterprise for a distributor. Id. at 285; ER 56. However, on cross-examination, he agreed that the scale was unlikely to be used in public. Id. at 335-36; ER 75-76.

Agent Heald also opined that the handwritten loose notebook pages were pay-owe sheets used to keep track of drug sales. Id. at 286; ER 57. Upon Agent Heald's testimony, the district court admitted the notebook pages into evidence and instructed the jury that they were not to be considered for their truth, "but merely to help you evaluate the weight that you give to the expert's opinion and how it relates to the offering of that opinion." Id. at 348; ER 78.

Agent Heald additionally testified that a gun like that found in the defendant's backpack would have two purposes for a narcotics distributor: protection from theft, and a means of intimidation when collecting drug debts. Id. at 294; ER 61.

Agent Heald additionally testified that a street dealer would be more inclined to be a polydrug distributor than someone higher up in the chain, because the street dealer interacts with a wide variety of users. Id. at 340; ER 77.

4. A.T.F. Agent Costakis

To establish the interstate nexus for the ' 922(g)(1) charge, the government called A.T.F. Agent Anthony Costakis as an expert witness. RT 7/12/99 at 197-98, 202; ER 38-39, 39.5. Agent Costakis testified that neither the firearm nor the ammunition had been manufactured in California and thus all had traveled in interstate commerce. Id. at 204; ER 40.

5. Dr. Gregory Hayner

Defendant called as an expert witness Gregory Hayner, Chief Pharmacist at the Haight Ashbury Clinic. The Haight Ashbury Clinic is an outpatient drug treatment and counseling center which sees between 3,000 and 5,000 patients each year. RT 7/14/99 at 350, 353; ER 80, 82. Dr. Hayner evaluates clinic patients and collects medical and drug use history from them. Id. at 350-51; ER 80-81. He speaks to nearly all the patients who come through the clinic. Id. at 351; ER 81.

Dr. Hayner testified that it is not uncommon for people to use several grams of cocaine a day. Id. at 358-59, ER 83-84. He testified that the amount seized from the defendant could be used up in a few days. Id. at 360; ER 85. In discussing the effects of cocaine use, Dr. Hayner testified that after a certain number of years of heavy use, almost all cocaine users start to show symptoms of paranoia. Id. at 363; ER 88.

Dr. Hayner also testified about methamphetamine use. In his experience, methamphetamine users often use one gram or more per day but usually do not use much over a couple of grams a day. Id. at 368; ER 92. The methamphetamine in the defendant=s backpack, which had purity rates of 4.7% and 7%, was of low potency. Id. at 368; ER 92. An individual who regularly uses methamphetamine will develop a tolerance to it and will require larger and larger quantities to achieve the same effect. Id. at 370; ER 93.

In his experience, drug users, and particularly heavy drug users, may buy drugs in as large a quantity as they can afford. Id. at 360; ER 85. This is because it is cheaper to buy in bulk, and the drugs are less likely to be diluted. RT 7/14/99 at 361-62, 365-66; ER 86-87, 89-90.