[00:00:04] Speaker 00: Case number 14-3039-8L, United States of America v. Sherman Mitchell, Appellant. [00:00:10] Speaker 00: Mr. Baer for the Appellant. [00:00:11] Speaker 00: Ms. [00:00:11] Speaker 00: Dinello for the Appellee. [00:00:14] Speaker 00: Mr. Baer, good morning. [00:00:15] Speaker 04: Good morning, Your Honor. [00:00:16] Speaker 04: Good morning to the Court. [00:00:18] Speaker 04: My name is Douglas Baer. [00:00:20] Speaker 04: I'm a law firm of Keller and Heckman. [00:00:21] Speaker 04: I'm joined this morning by Kishore Khan, an associate with the firm. [00:00:25] Speaker 04: I'm here on behalf of Mr. Sherman Mitchell, who is appealing his conviction for four PCP-related crimes. [00:00:32] Speaker 04: We raised a number of issues in our brief, all of which we believe merit a reversal of that conviction. [00:00:37] Speaker 04: Primarily, we also just… Which one is your strongest one? [00:00:39] Speaker 04: I'm sorry? [00:00:39] Speaker 02: Which one is your strongest one? [00:00:41] Speaker 04: I believe the strongest one, Your Honor, is the one that the government failed to identify, prove the identity of the liquids that were seized during the course of this investigation. [00:00:51] Speaker 02: The chain of custody. [00:00:52] Speaker 02: Well, it's not exactly chain of custody. [00:00:55] Speaker 04: I think that's one of the interesting points, Your Honor. [00:00:58] Speaker 04: The chain of custody generally is a situation where one end of the process of seizure to analysis and the other end of that process had been joined. [00:01:11] Speaker 04: And what's missing is a link in the middle of how the drugs got from the seizure to the lab. [00:01:17] Speaker 04: We have that issue. [00:01:18] Speaker 04: But more importantly, we have the issue that the two ends were never linked. [00:01:22] Speaker 04: And I'd submit to the court that that establishes two problems with the conviction. [00:01:26] Speaker 04: One is the authenticity of what was analyzed and whether it was, in fact, the drugs that were taken, which goes to the admissibility of that evidence. [00:01:37] Speaker 04: But more importantly, I think, Your Honor, it goes to whether there was a [00:01:44] Speaker 04: sufficiency of the evidence to demonstrate that Mr. Mitchell was involved with the actual drug, PCP. [00:01:51] Speaker 04: It's an interesting case because there's no [00:01:55] Speaker 04: testimony other than the seizure and the analysis that identifies what Mr. Mitchell was allegedly doing as being involved in PCP. [00:02:04] Speaker 04: There's no statements by him. [00:02:05] Speaker 04: There are no documents that says I'm offering to sell PCP. [00:02:09] Speaker 04: There's no buyers who said they bought PCP from him. [00:02:12] Speaker 04: The only evidence are the boxes that were covered and the liquids that were in those boxes. [00:02:20] Speaker 04: And what makes this case unusual in another aspect is [00:02:25] Speaker 04: The processing of the suspected PCP was in fact a two-step process. [00:02:31] Speaker 04: The liquid was taken to police officer Abdullah, where he created a sample of one ounce of the liquid in a generic one-ounce vial, which was unmarked. [00:02:45] Speaker 04: And then that vial was analyzed by the chemist. [00:02:49] Speaker 04: And in both those stages, the government failed to prove the identity of what was happening. [00:02:58] Speaker 04: No one testified to bringing the drugs to Officer Abdullah. [00:03:03] Speaker 04: I checked this morning because it occurred to me as I was thinking about my argument. [00:03:08] Speaker 04: that maybe Agent Tarr hadn't testified that he took the drugs, the first box, the November 2012 box, to Abdullah. [00:03:15] Speaker 04: And, in fact, he hadn't. [00:03:16] Speaker 04: What he testified to is that the drugs went to Abdullah. [00:03:22] Speaker 04: Now, I don't know who brought them. [00:03:24] Speaker 04: Abdullah didn't remember who brought the drugs to him. [00:03:26] Speaker 04: He didn't remember who he gave the samples to. [00:03:30] Speaker 02: Well, no, he testified that either Tar or Mulkay or whatever delivered the packages to him. [00:03:37] Speaker 04: Right, but he wasn't sure. [00:03:38] Speaker 02: Which one? [00:03:39] Speaker 04: We don't know. [00:03:40] Speaker 04: He didn't know which one. [00:03:41] Speaker 02: I know, but one or the other did. [00:03:44] Speaker 04: To the best of his recollection, one or the other did. [00:03:46] Speaker 04: Neither of them testified to having done that. [00:03:48] Speaker 04: Mulcahy and Tarr both testified at the trial. [00:03:52] Speaker 04: Neither of them testified to actually bringing the packages to Abdallah. [00:03:58] Speaker 04: And in fact, the PG County officer said he turned his two seizures, the February seizures, over to DEA. [00:04:07] Speaker 04: He didn't identify any officer. [00:04:10] Speaker 04: The way these cases are usually tried is the drugs come in first because the chemist has the drugs in his safe at the lab. [00:04:18] Speaker 04: And once the chemist has gone through his or her testimony, then the seizing officer identifies those samples and the transporting officer does as well. [00:04:26] Speaker 04: That didn't happen here, and it's curious that Abdullah didn't even identify the samples that were analyzed as having been created by him. [00:04:37] Speaker 02: Well, I thought we had the photos, and I thought... All right, we have a photo, Your Honor, that was submitted by the government. [00:04:43] Speaker 04: I would submit to the court that that photo was created for the purposes of this appeal. [00:04:49] Speaker 04: The bag was what was in evidence. [00:04:51] Speaker 04: The photograph was never in evidence. [00:04:53] Speaker 04: It wasn't in the books that was given to the defense counsel in preparation. [00:04:56] Speaker 04: It wasn't marked as an exhibit. [00:04:59] Speaker 04: It wasn't shown to the jury. [00:05:01] Speaker 04: What we've got, the government is total reliances on the bags in which the samples arrived at the lab. [00:05:11] Speaker 04: And the first point I would make, Your Honor, is that as far as the record shows, that bag was never shown to the jury. [00:05:19] Speaker 04: There's no evidence that it was exhibited on the elmo or otherwise passed around the jury, and there's certainly no evidence that it ever went to the jury room, and it would have been highly unlikely that it did. [00:05:32] Speaker 04: Drugs just don't go to an unsupervised jury. [00:05:36] Speaker 04: So there's no basis upon which the jury could have relied on those envelopes to make the connection and find beyond a reasonable doubt that what was seized was in fact PCP and thus that Mr. Mitchell was involved with PCP. [00:05:53] Speaker 04: Furthermore, the government didn't rely on these envelopes. [00:05:57] Speaker 04: When it opposed the challenge to the chain of custody at the trial, they relied on testimony or alleged purported testimony. [00:06:06] Speaker 04: I actually don't think much testimony was there about case numbers and other exhibit numbers that appeared or that were testified to by Officer Abdullah and by the lab. [00:06:17] Speaker 04: But as the court is aware from the brief, one of those exhibits, Exhibit 1B, was never identified, was never testified to. [00:06:24] Speaker 04: Abdullah didn't say he created it, and yet it showed up in court. [00:06:28] Speaker 04: Furthermore, we'd submit that these writings are unreliable hearsay. [00:06:33] Speaker 04: They were never authenticated. [00:06:35] Speaker 04: We don't know who wrote any of it. [00:06:37] Speaker 04: We don't know when it was written. [00:06:39] Speaker 04: And finally, because it wasn't offered by the government for the purposes for which they're now citing it, it was never argued with the trial judge as to whether it was admissible or not. [00:06:54] Speaker 04: And finally, I'd note, Your Honor, that it doesn't say this was seized from Mr. Mitchell. [00:07:02] Speaker 04: or it was seized from the package that I got at the Onyx or it came from the PG County. [00:07:07] Speaker 04: It's got, you know, some indications of who was involved, but nobody's identified it, nobody, in a more general sense, testified to the process. [00:07:19] Speaker 04: There's no testimony that I recall in the record that described in a general way how is evidence processed, how are labels created, that labels are put on, who signs them, what they mean, and how they're created and transported. [00:07:34] Speaker 04: So there's no even general evidentiary basis to support any conclusions based on these photographs. [00:07:42] Speaker 04: And as we've noted in our reply brief, we submit that there are some indications on the label that call them into question. [00:07:49] Speaker 04: First of all, there's the whole question of Exhibit 1B. [00:07:53] Speaker 04: And then there's the whole numerous entries about the net weight, which appear to show that it weighed more after it was analyzed than before it was analyzed. [00:08:07] Speaker 04: It's not a difficult question or proof [00:08:11] Speaker 04: When I was an assistant use attorney a long time ago, it was simple. [00:08:15] Speaker 04: You called the chemist. [00:08:16] Speaker 04: The chemist brought the evidence. [00:08:17] Speaker 04: It was marked, and then it was shown to the seizing officer who identified it. [00:08:21] Speaker 04: That just didn't happen here. [00:08:23] Speaker 04: The government just failed to meet its burden. [00:08:28] Speaker 04: If there are no other questions about that particular issue, I'd just like to point out we also believe that the [00:08:35] Speaker 04: Prosecutor's arguments in this case, particularly her closing argument in rebuttal, are an additional – a strong basis for this case to be reversed. [00:08:47] Speaker 04: We believe the case was not a strong case. [00:08:48] Speaker 04: It was clearly a circumstantial case. [00:08:51] Speaker 04: The government probably believed that its case against Mr. Kalzer was as strong as its case against Mr. Mitchell. [00:08:58] Speaker 04: obviously didn't convince the jury in that case, and yet the prosecutor made some very strident, inaccurate statements during her rebuttal argument attacking defense counsel. [00:09:13] Speaker 04: And as we've noted and the government concedes, it was certainly unfortunate. [00:09:19] Speaker 04: that these men should be held responsible for bringing this poison into the district. [00:09:25] Speaker 04: And that was the last statement she made in the last thing that the jury heard. [00:09:29] Speaker 04: If there are no further questions, I'll reserve my remaining time for rebuttal. [00:09:44] Speaker 02: Good morning, Mr. Nello. [00:09:45] Speaker 02: Can I ask you about these photos? [00:09:47] Speaker 02: What is your understanding about the photos? [00:09:51] Speaker 01: Which photos are you referring to, Your Honor? [00:09:53] Speaker 01: Are you referring to the photos of the heat seals that are in the record? [00:09:58] Speaker 02: Yes. [00:09:58] Speaker 01: Yes, those are photos that were taken, actually I don't know whether they were taken for the purpose of appeal or not. [00:10:06] Speaker 01: I don't believe the photos were offered at trial. [00:10:10] Speaker 01: The actual heat seals were shown to the chemist and the heat seals [00:10:15] Speaker 01: were what were presented at trial. [00:10:17] Speaker 01: And by the way, if the court wishes to see the heat seals, we're more than happy to make them available for reviewing. [00:10:24] Speaker 01: I'd like to address this chain of custody issue. [00:10:27] Speaker 01: And note that the evidence of establishing chain of custody is a little hard to keep straight. [00:10:34] Speaker 01: And appellants' focus on what was not presented may be obscuring the significance of the evidence that was presented. [00:10:42] Speaker 01: And if the Court will indulge me, I'd like briefly to walk through the evidence that does establish the chain for the drugs in this case. [00:10:50] Speaker 01: Starting with the November 2012 drugs, these were the bottles that were intercepted at the onyx. [00:10:57] Speaker 01: DEA Exhibit 1, Government Exhibit, Trial Exhibit 104. [00:11:01] Speaker 01: Step one, the seizure. [00:11:03] Speaker 01: We have Agent Tarr testify that he obtains the shipping boxes at the loading docks at the Onyx. [00:11:10] Speaker 01: This is on November 26. [00:11:11] Speaker 01: He obtains a search warrant, opens the boxes the next day, discovers the bottles. [00:11:16] Speaker 01: Step two, from Tarr to Abdallah. [00:11:19] Speaker 01: Tarr testifies that the bottles went to Joe Abdallah. [00:11:23] Speaker 01: No objection, and the opportunity to cross-examine [00:11:26] Speaker 01: Defense did not choose to take him up on that. [00:11:29] Speaker 01: And that testimony was corroborated by Abdallah, who testifies that he received the bottles from either TAR or Brian Mulcahy, who was a DEA agent who was working with TAR. [00:11:39] Speaker 01: Step three, from Abdallah to the heat seal. [00:11:42] Speaker 01: Abdallah testifies that after he draws out the sample, tosses out most of the contents of the bottles, replaces it with iced tea, he gets the items back to Mulcahy. [00:11:56] Speaker 01: And he testifies, page 42 of the October 10th transcript, that the items were processed by Mulcahy and placed in the heat seals or placed in the evidence bags by him. [00:12:09] Speaker 01: Now, the next step is from the heat seal to the chemist. [00:12:13] Speaker 01: To be sure, there's no testimony about how the heat seals travel to the lab. [00:12:18] Speaker 01: But if there's a hole here, it's a shallow one. [00:12:20] Speaker 01: Because one, we have the testimony of Abdallah, who identifies the photo in government exhibit 100G, which is photo of the one out sample, as the sample that was submitted to the DEA mid-Atlantic lab chemist for an analysis. [00:12:36] Speaker 01: We also have the testimony of the chemist, who discusses the procedures at the lab for checking out items, for making sure the numbers matching up, for making sure there's no sign of tampering. [00:12:47] Speaker 01: And he found no sign of tampering here. [00:12:49] Speaker 01: And then we have a comparison of the heat seal and the DEA lab analysis. [00:12:56] Speaker 01: I note, by the way, that the parties and the judge refer to that report of analysis as the DEA-7. [00:13:03] Speaker 01: That's a term that we're all used to. [00:13:05] Speaker 01: In fact, if you look carefully at supplemental appendix 137, it's actually now called the DEA 113, new fact for the day. [00:13:14] Speaker 01: Note with respect to the heat seal itself, appellant argues that the notations on that are hearsay. [00:13:22] Speaker 01: At trial, the only hearsay objection appellant raised was to the notations by the first chemist. [00:13:28] Speaker 01: You'll recall that the original chemist's toothpick was unable to testify due to a family emergency. [00:13:34] Speaker 01: Chemist Liu retested the drugs during the trial, and the judge overruled the hearsay objection with respect to what the first chemist had written, apparently relying on the residual exception to the hearsay rule. [00:13:46] Speaker 01: when he finds circumstantial guarantees of trustworthiness. [00:13:51] Speaker 01: The defense never suggested there was any hearsay problem or asked for redaction on the stickers of the heat seals when they were admitted into evidence. [00:14:00] Speaker 01: Note, too, that as Mr. Baer has pointed out, there are really two issues raised by the chain of custody. [00:14:08] Speaker 01: One is whether the district court abused its discretion in admitting the drugs, whether there was sufficient authentication, and there, of course, [00:14:17] Speaker 01: gaps in the chain tend to go to weight rather than to admissibility. [00:14:23] Speaker 01: And then the second issue is the sufficiency of the evidence whether the government sustained its burden of proving that appellant possessed PCP. [00:14:32] Speaker 01: And to that end, the court can consider not only the evidence of the chain of custody, but also the other evidence indicating that appellant did possess PCP. [00:14:42] Speaker 01: For example, the court can consider that these drugs were all shipped from LA, a source city. [00:14:47] Speaker 01: Consider that the bottles looked, smelled, or packaged like PCP. [00:14:52] Speaker 01: That in a palace apartment were tools for a distribution enterprise specifically tailored to PCP. [00:14:59] Speaker 01: There was lighter fluid. [00:15:01] Speaker 01: There were vials. [00:15:02] Speaker 01: There was air freshener. [00:15:04] Speaker 01: All that together supports the conclusion that, indeed, this was PCP. [00:15:10] Speaker 01: Now, appellant notes, by the way, let me note too, just going back to these two issues, that with respect to the July drugs, you recall that the July drugs were not actually the subject of any substantive count. [00:15:23] Speaker 01: So the issue for the July drugs is not whether there was sufficient evidence to convict appellant of the July drugs, but rather whether the judge erred in admitting them. [00:15:33] Speaker 01: The July drugs were mentioned as an overt act in the conspiracy only. [00:15:37] Speaker 01: And there's plenty of other evidence supporting the conspiracy. [00:15:45] Speaker 01: Appellate argues in relation to the concerns about the exhibit 104 and concerns about what was going on here. [00:15:56] Speaker 01: He notes that there's no evidence. [00:15:58] Speaker 03: The objection to the July votes was 404B. [00:16:03] Speaker 01: 404B. [00:16:05] Speaker 03: Your response to that? [00:16:06] Speaker 01: Oh, I'm sorry. [00:16:07] Speaker 01: I thought you were talking about there's an exhibit number 404, so I'm being related to... I'm talking about the federal rules of the... Yes, the judge... Well, actually, it was not really teed up specifically for the July drugs. [00:16:21] Speaker 01: Appellant on appeal has argued that the various shipments that were not charged were improperly proved up at trial. [00:16:30] Speaker 01: The judge ruled, actually, even though an objection had not been raised, but the July drug certainly fell within the time period of the conspiracy, as did all the shipments where the drugs were not actually introduced, but the government introduced evidence that Appellant was traveling to Los Angeles and shipping back packages during that time period. [00:16:52] Speaker 03: Did you give notice of the intent to use the July drugs, the pre-trial notice? [00:16:58] Speaker 01: Notice wasn't required because these were drugs that were intrinsic to the conspiracy. [00:17:04] Speaker 01: This was not other crimes evidence subject to the strictures of Rule 404b and the procedural requirements of Rule 404b. [00:17:12] Speaker 01: So I don't know when the defense became aware of the July drugs. [00:17:19] Speaker 01: I don't know the procedural history of that. [00:17:21] Speaker 03: The extrinsic line that you're proposing is one that I have often found quite bad. [00:17:29] Speaker 03: Well, the point is that July drugs... Isn't the point that they were introduced not for the purpose of showing that this guy had a bad character, but for other reasons? [00:17:43] Speaker 01: Yes. [00:17:43] Speaker 03: Such as motive, opportunity. [00:17:46] Speaker 01: Well, not only that, Your Honor, they were offered as direct evidence of the conspiracy. [00:17:52] Speaker 01: Because, again, it was alleged in the conspiracy charge that appellant was shipping drugs throughout the time period of February 2011 to February 2013. [00:18:03] Speaker 01: And these drugs fell right in that, and they were offered and argued as evidence of the conspiracy. [00:18:10] Speaker 02: Were there modus operandi? [00:18:12] Speaker 02: Aren't they? [00:18:13] Speaker 01: I would think they are. [00:18:14] Speaker 01: Yes, if you want to view them even in the prism of 404b, they would be offered for a purpose other than propensity, but our position is we don't even have to reach one of the 404b exceptions because they were offered as direct evidence of the charged offense of conspiracy. [00:18:31] Speaker 01: Let me just briefly address some of the concerns raised by Pellant. [00:18:36] Speaker 01: He expresses concern with this government exhibit 1B. [00:18:41] Speaker 01: This was the sample that, as the prosecutor explained at a bench conference, Detective Abdallah, after replacing the watered-down drugs in the bottles, he drew off an additional sample and tested that so that [00:18:57] Speaker 01: Causer, when he picked up the drugs, would be still possessing, actually possessing PCP. [00:19:04] Speaker 01: Causer was acquitted. [00:19:05] Speaker 01: That issue is moot. [00:19:07] Speaker 01: 1B is not a basis of appellant's convictions. [00:19:10] Speaker 01: He was charged based on Exhibit 1, Exhibit 104, and Exhibit 6 and 9. [00:19:14] Speaker 01: 1B is really a red herring. [00:19:18] Speaker 01: Does the Court have any further questions on the chain of custody? [00:19:22] Speaker 01: And then just very briefly on the closing argument, our brief, I believe, addresses the specific points that Helen has raised. [00:19:29] Speaker 01: I would just note that at sentencing, the judge himself noted, page 11 of the June 25th sentencing transcript, that even he considered the evidence to be overwhelming. [00:19:40] Speaker 01: And based on the evidence that was presented and the really relatively minor concerns presented by these comments in closing argument, there would be no basis to reverse the conviction. [00:19:55] Speaker 02: I have one question just because I'm curious. [00:19:58] Speaker 02: Does the record reveal why another judge [00:20:03] Speaker 02: came in to answer the questions of the jury. [00:20:05] Speaker 02: That's very unusual. [00:20:08] Speaker 01: That's interesting that that's your reaction, Your Honor, because that happens all the time in Superior Court. [00:20:13] Speaker 01: And when I saw that, I didn't blink an eye. [00:20:16] Speaker 01: If a judge is at a doctor's appointment or unable to be there at the time the jury comes back, it's a very common practice across the street. [00:20:27] Speaker 02: It's a bad practice, because if the jury's sitting there, the judge would be there. [00:20:31] Speaker 01: Agreed. [00:20:31] Speaker 01: And there may be questions that a judge who comes in may not be in a position to ask. [00:20:36] Speaker 01: Sometimes judges can confer telephonically with the trial judge. [00:20:41] Speaker 01: But here the question that was asked was properly answered by Judge Boesberg. [00:20:45] Speaker 01: And there's no suggestion that Judge Boesberg erred in answering the question. [00:20:51] Speaker 02: I wasn't asking about that. [00:20:52] Speaker 02: OK. [00:20:53] Speaker 02: Any more questions? [00:20:55] Speaker 01: I think we'd ask that the court affirm the judgment of the district court. [00:20:57] Speaker 01: Thank you. [00:21:07] Speaker 04: Just to answer your question, Judge Henderson, my recollection is that the judge had a pre-existing commitment out of town. [00:21:13] Speaker 04: And I believe the record also shows that Judge Boasberg spoke with Judge Leon prior to answering the jury's question. [00:21:25] Speaker 04: There was no testimony about the envelopes about which we've been discussing this morning. [00:21:33] Speaker 04: And therefore, the judge never ruled on whether this [00:21:37] Speaker 04: notations on the envelopes were proper hearsay or were not hearsay. [00:21:42] Speaker 04: The only objection was when there was a question asked of the chemist about a statement written by another chemist, and my recollection of the record is that the judge said it's already been admitted. [00:21:53] Speaker 04: That was his response to the hearsay objection. [00:21:57] Speaker 04: He never addressed whether there was any reliability or any basis not to apply the hearsay exception to even that limited [00:22:08] Speaker 04: piece of writing on the heat shields. [00:22:13] Speaker 04: But as to the other writings, they were never offered. [00:22:15] Speaker 04: There was no discussion of them. [00:22:17] Speaker 04: The defense never objected to them because they were never offered for the purposes for which they're being cited to this court. [00:22:26] Speaker 04: The other point I would raise on the July 2011 drugs that Judge Randolph asked about, we don't believe that there was adequate evidence that they were part of the conspiracy, certainly not a conspiracy between Mr. Mitchell and Mr. Kauser because there's no testimony of Mr. Kauser being involved. [00:22:45] Speaker 04: With those drugs, there's no question of anybody else being involved with those drugs. [00:22:48] Speaker 04: It's quite conceivable that Mr. Mitchell, if he did in fact send the drugs, was sending them to himself, because there's testimony that he would go to California and ship packages to the onyx, which he picked up himself. [00:23:02] Speaker 04: So we submit that it was only offered for purposes that are not acceptable to show, either bad character or some other purpose. [00:23:11] Speaker 04: It doesn't show motive, and it doesn't show intent. [00:23:14] Speaker 04: We don't believe in it, and certainly we don't think it's part of the substance. [00:23:17] Speaker 04: evidence of conspiracy, given the time difference in and the different players that are involved. [00:23:25] Speaker 04: If there are no further questions, we'll ask the court to reverse the conviction and submit on the brief. [00:23:31] Speaker 02: Mr. Berry, you were appointed to represent your client. [00:23:35] Speaker 02: You've done a wonderful job. [00:23:36] Speaker 02: We thank you for it. [00:23:37] Speaker 02: You're welcome, Your Honor.