Myrie Final Reply Brief Filed

Case: 11-13077
Date Filed: 03/09/2012
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NO. 11-13077AA
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA, Appellee/Cross-Appellant, v. MARK ANTHONY MYRIE, a/k/a Buju Banton Defendant/Appellant/Cross-Appellee On Appeal from the United States District Court for the Middle District of Florida District Court Case Number 8:09-CR-572
REPLY BRIEF OF THE APPELLANT AND RESPONSE BRIEF OF THE CROSS-APPELLEE
DAVID OSCAR MARKUS MONA E. MARKUS A. MARGOT MOSS MARKUS & MARKUS, PLLC Attorneys for Appellant/Cross-Appellee 40 N.W. 3rd Street, Penthouse One Miami, Florida 33128 Telephone No. (305) 379-6667 Facsimile No. (305) 379-6668 THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL)
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TABLE OF CONTENTS TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i STATEMENT OF THE ISSUE PRESENTED BY THE GOVERNMENTS CROSS-APPEAL . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. THE GOVERNMENT HAS NOT REFUTED ITS FAILURE TO PROVE MYRIE GUILTY ON COUNTS ONE AND FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 MYRIE WAS ENTRAPPED BY A NEFARIOUS GOVERNMENT AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 MYRIES SPEEDY TRIAL RIGHTS WERE VIOLATED . . . . . . 28 (CROSS-APPEAL) THE DISTRICT COURT PROPERLY ENTERED A JUDGMENT OF ACQUITTAL ON THE 924(C) GUN COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
II.
III. IV.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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TABLE OF CITATIONS CASES: Bloate v. United States 130 S. Ct. 1345 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 Burks v. United States 437 U.S. 1 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Edwards v. United States 2011 WL 1357687 (M.D. Fla. April 11, 2011) . . . . . . . . . . . . . . . . . . . . . 24 Jacobson v. United States 503 U.S. 540 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 27, 28 Pinkerton v. United States 328 U.S. 640 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Scott v. Harris 550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Stirone v. United States 361 U.S. 212 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 United States v. Alvarez 755 F.2d 830 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Arbane 446 F.3d 1223 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Bailey 235 F.3d 1069 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. Bannister 285 Fed. Appx. 621 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 i
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United States v. Bazemore 139 F.3d 947 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 United States v. Brown 43 F.3d 618 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 United States v. Brown 587 F.3d 1082 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 United States v. Casteneda 9 F.3d 761 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 40 United States v. Chavez 549 F.3d 119 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 United States v. Clavis 977 F.2d 538 (11th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Dennis 237 F.3d 1295 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 United States v. Diaz 248 F.3d 1065 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 United States v. Diaz 377 Fed. Appx. 883 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 United States v. Forrest 420 Fed. Appx. 949 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 United States v. Gallo-Chamorro 48 F.3d 502 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 United States v. Garcia-Barzaga 361 Fed. Appx. 109 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ii
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United States v. Hall 181 F.3d 1057 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 United States v. High 117 F.3d 464 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Jemison 310 Fed. Appx. 866 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Jordan 544 F.3d 656 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 United States v. Keller 916 F.2d 628 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 United States v. Kirby 208 Fed. Appx. 694 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44 United States v. Mackey 265 F.3d 457 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44 United States v. McHugh 639 F.3d 1250 (10th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 United States v. McKee 506 F.3d 225 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 United States v. Mercer 541 F.3d 1070 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 United States v. Miranda 425 F.3d 953 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 United States v. Molina 443 F.3d 824 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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United States v. Moon 205 Fed. Appx. 782 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 26 United States v. Nance 40 Fed. Appx. 59 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46 United States v. Narog 372 F.3d 1243 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 United States v. Newton 44 F.3d 913 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Nordby 225 F.3d 1053 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Odom 13 F.3d 949 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. One 2007 Toyota FJ Cruiser 2011 WL 5562752 (N.D. Ga. Nov. 8, 2011) . . . . . . . . . . . . . . . . . . . . . . . 24 United States v. Perez-Tosta 36 F.3d 1552 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 United States v. Pillado 656 F.3d 754 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 United States v. Powell 929 F.2d 724 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 United States v. Qasim 294 Fed. Appx. 509 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 United States v. Ross 131 F.3d 970 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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United States v. Sanabria 437 U.S. 54 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 United States v. Sanders 421 F.3d 1044 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. Sarro 742 F.2d 1286 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Suarez 313 F.3d 1287 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 United States v. Sullivan 763 F.2d 1215 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Theron 782 F.2d 1510 (10th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 32 United States v. Thomas 987 F.2d 697 (11th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 United States v. Thompson 473 F.3d 1137 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 United States v. Timmons 283 F.3d 1246 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44 United States v. Turgeon 149 Fed. Appx. 144 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 United States v. US Infrastructure, Inc. 576 F.3d 1195 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 United States v. Vazquez 428 Fed. Appx. 945 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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United States v. Ward 274 F.3d 1320 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Wallingford v. Olson 592 F.3d 888 (8th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Yeager v. United States 557 U.S. 110 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Zedner v. United States 547 U.S. 489 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31 OTHER AUTHORITIES: 18 U.S.C. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 18 U.S.C. 924 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 21 U.S.C. 841 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 21 U.S.C. 843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 21 U.S.C. 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 18 U.S.C. 3161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 32 18 USC 3162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. Crim. P. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 H.R. Rep. No. 105-344, 1997 WL 668339 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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STATEMENT OF THE ISSUE PRESENTED BY THE GOVERNMENTS CROSS-APPEAL Whether the district court properly entered a judgment of acquittal on Myries 18 U.S.C. 924(c) conviction where Myrie could not reasonably foresee that an alleged co-conspirator he did not know would be present with a gun at a meeting he did not know about, and where the gun remained quadruple-wrapped in a car while the drug transaction proceeded in a warehouse.
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STATEMENT OF THE CASE The Government leads off its Brief with a Preliminary Statement that accuses Appellant Mark Myries Statement of Facts of spinning the tail of an entertainers trial based only on an interview of the entertainer and his fans. Govt Brief at 3.1 The Governments attack is surprisingly aggressive considering that it then goes on to present a version of the facts that even the trial prosecutor would not have dared to argue below.2 In the 57 collective years of law practice by the signatories to this brief, we have yet to receive an appellate brief that so fundamentally misrepresents the facts as the Governments brief does. It is as if the Government believes that
We are puzzled by the Governments accusation that Myries Initial Brief relies on commentary and asides of counsel and insinuation and assumptions unsupported by the record. Govt Brief at 3. After leveling this charge, the Government nowhere identifies with specificity what commentary, insinuations, and assumptions Myrie failed to substantiate. It is easy to confirm by a review of Myries Initial Brief that every single factual assertion is supported by citation to the record (and almost always to testimony of the Governments own witnesses). We regret that the level of discourse in this briefing process has been reduced to negative attacks rather than a focus on the actual evidence, especially since the actual evidence stripped of the Governments misrepresentations strongly supports that Myrie should be set free. Theories of prosecution not presented to the jury cannot be relied upon on appeal. United States v. Ross, 131 F.3d 970 (11th Cir. 1997) (This Court cannot affirm a criminal conviction based on a theory not contained in the indictment or not presented to the jury.) (citation omitted). 2
2
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taking the facts in the light most favorable to the jurys verdict actually means making up whatever facts work best for the story you want to tell.3 The Governments presentation of the facts, both in its Statement of the Case and throughout its Argument, is untethered to the record and is so riddled with inaccuracies and misleading statements that it would be nearly impossible to address all of them. We endeavor to bring to the Courts attention some of the most extreme examples (a selection of others is discussed in the context of the related points in the Argument section below): The day after the flight, July 27, Myrie and Johnson met at a Ft. Lauderdale restaurant to discuss Johnson transporting drugs to Europe for Myrie. Id. at 15-16. Myrie told Johnson that the main thing his friends wanted to do was to transport cocaine to Europe. Govt Exs. R20C, R20B at 1. Govt Brief at 10. This passage falsely states that after meeting by chance on an airplane, Myrie and Johnson planned a meeting for the purpose of discussing a drug deal. But while Johnsons purpose behind getting together with Myrie was plainly to try to create a drug transaction that would earn himself a large commission, there is no evidence whatsoever that this was Myries purpose or that there was any agreement to get together to talk about drugs. To the contrary, the testimony The fact that the evidence must be viewed in the light most favorable to the Government does not mean that only certain portions of the trial evidence should be brought to the attention of this Court. All of the evidence in its entirety must be presented so that this Court may decide de novo whether, in the light most favorable to the Government, that evidence may justify the jurys verdict. Scott v. Harris, 550 U.S. 372, 380 (2007); United States v. McHugh, 639 F.3d 1250, 1256-57 (10th Cir. 2011) (viewing facts in their entirety); Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir. 2010); United States v. Turgeon, 149 Fed. Appx. 144, 147 (4th Cir. 2005). 3
3
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was that Johnson called Myrie and invited him to have a bite to eat, saying nothing about discussing the transportation of drugs. Johnson, 2/15PM, 53:411. See also Myrie, 2/16PM, 34:19-22. And the recording of the get-together confirms that the purpose of the meeting was plainly not to discuss drugs, as the parties did not discuss drugs until two hours and 13 minutes into their time together, only after Johnson intentionally plied Myrie with substantial quantities of wine as part of the game he was playing, Johnson, 2/15PM, 54:4-9, 63:16-20, and only when Johnson followed Myrie to his car as he was planning to leave and Johnson brought the subject up. Johnson, 2/15PM, 54:16-19, 56:13-15, 57:14-21. By omitting these and other critical details,4 the Government gives the absolutely false impression that the parties scheduled a drug planning meeting and that they met and got down to business. This is simply not what occurred.
After talking on the phone several times over the next few days, Johnson and Myrie met again on August 1 at a restaurant in Ft. Lauderdale. Doc. 345 at 30. Govt Brief at 11. While technically true, this statement is misleading in that it implies a mutual attempt at communication for the purpose of planning a get-together. The evidence, by contrast, is that it was Johnson who pushed the communication. After their first get-together, Johnson repeatedly called Myrie to set another date, and Myrie repeatedly cancelled. See, e.g., Johnson, 2/15PM, 64:9-67:12; Gov. Ex. R1b. Concerned that Myrie kept cancelling, Johnson instead pushed the issue by travelling to the east coast to see Myrie on August 1. Johnson, 2/15PM, 67:18-22, 68:24-69:9; Gov. Ex. R21b. In addition to misrepresenting the nature of the communications, the Government also omits that there was no discussion about drugs for the first hour and eight minutes of eating and drinking at the August 1 get-together, until Johnson once again initiated a conversation about cocaine. Johnson, 2/15PM, 68:5-7. And while it is true that Myrie then boasted about his
A full presentation of the relevant facts related to the entire course of the Johnson-Myrie relationship is set forth in Myries Initial Brief at 6 to 17. 4
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knowledge of drug transactions, Johnson admitted at trial that Myrie had not actually done the things about which he was boasting and that Myrie did not actually know what he was talking about. Johnson, 2/15PM, 71:1-8, 72:13-18, 73:4-12. Although Myrie was on tour for the next four months, he kept in touch with Johnson by telephone. Doc. 345 at 66-75. Govt Brief at 11. The record establishes that Myrie did not keep in touch with Johnson by telephone. It was Johnson who repeatedly attempted to keep in touch with Myrie (with limited success). Johnson repeatedly sought to convince Myrie to come out to Sarasota. Myrie repeatedly declined, and on those occasions in which he agreed to see Johnson, he subsequently cancelled or did not show up. Throughout this time period, Johnson relentlessly pursued Myrie by calling him repeatedly. Johnson, 2/15PM, 87:7-89:11, 89:18-94:8 (Johnson contacting Myrie on August 4, 5, 24, September 3, 12, Oct. 14, Nov. 3); Gov. Ex. R5b, R6b, R7b, R8b, R9b. Often, Myrie would not take the calls nor would he call back. Id. As Johnson acknowledged, for five months [he was] trying to get [Myrie] over to see [him] and for five months he [] either cancelled or said no. Johnson, 2/15PM, at 94:3-8. On the few occasions when Myrie and Johnson did speak, there was no discussion of drugs whatsoever. And it was always Johnson who brought up drugs first with Myrie, not the other way around. Special Agent McCaffrey, 2/14PM, 92:15-23, Gov. Ex. R5b, R6b, R7b, R8b, R9b. In other words, to the extent that the parties did keep in touch, the communications over this time period in no way support Myries conviction; to the contrary, even viewed in the light most favorable to the Government, they demonstrate only the relentless pursuit of an innocent dupe who was, in fact railroaded into engaging in a crime he wanted no part of by a paid Government informant. Govt Brief at 3. Eventually, they met again, on December 8, 2009, at a restaurant in Sarasota. Doc. 350 at 50-51; Doc. 345 at 78. This time, Myrie brought with him Ian Thomas, telling Johnson that Thomas knew people who could purchase cocaine from Johnson. Doc. 345 at 78-79. Govt Brief at 11. 5
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Given that the December 8 meeting is the crux of the Governments case against Myrie, it is rather appalling that the Government presents the events leading up to this meeting, and the manner of Thomass introduction to Johnson, with nothing more than these two sentences. The Government leaves the reader with a substantial misimpression about the purpose and nature of the get-together. The relevant facts are set forth in detail in Myries Initial Brief at 13-15. In summary, though, it took Johnson at least 5 attempts within a 3 day period (Johnson, 2/15PM, 100:24-101:2) and a guilt trip to get Myrie to agree to visit in Naples for a social boating outing. Johnson, 2/15PM, 94:997:6; 98:24-102:6; McCaffrey, 2/14PM, 86:19-88:25, 89:15-25; Gov. Ex. R10b). Johnson didnt tell Myrie they were going to Sarasota until Myrie was already in Naples. Johnson, 2/15PM, 24:12-25, 99:17-20; Myrie, 2/16PM, 44:17-21. Myrie brought Thomas to Naples as his driver and left him outside while dining with Johnson. Myrie, 2/16PM, 42:5-14, 44:17-21. And it was Johnson who invited Thomas to join the conversation after seeing him outside Myrie, 2/16PM, 44:17-21. They drove to an undercover warehouse owned by the Sarasota Police Department. Id. at 92. As they drove, Myrie told Johnson, Thank you very much for this opportunity, man. Youve given me the opportunity to be myself again. Id. at 86; Govt Exs. R22C, R22B at 5. Govt Brief at 32. By stringing these sentences together, the Government suggests that Myries appreciation for the opportunity relates in some way to the upcoming visit to a drug warehouse. But as the Governments witnesses readily acknowledged, by the Governments own design Myrie had no idea they were going to a warehouse to see drugs. Johnson, 2/16AM, 10:19-23, 12:9-20, 23:19-24:10; McCaffrey, 2/14PM, 46:13-15, 89:15-90:3. Thus this cannot have been the opportunity to which Myrie was referring. In fact, while at the restaurant and on the way to the surprise flash at the warehouse, Johnson made several promises about helping Myrie with a legitimate seafood business and his music career. See, e.g., Johnson, 2/16AM, 17:15-19:5; R22b.
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The next day, December 9, Johnson met Thomas at a Sarasota restaurant to finalize the cocaine deal. Doc. 350 at 56; Doc. 351 at 11. Govt Brief at 14. Through its use of the word finalize, the Government implies that the deal consummated between Johnson and Thomas on December 9 was the one under discussion on December 8. This is simply not the case. By the Governments own repeated admission, it was an entirely different deal involving a different quantity, price, and buyer. Johnson, 2/15AM, 58:13-16, 73:9-12, 2/15PM, 15:9-16:6, 2/16AM 37:2-13, 2/16AM, 27:4-19 29:22-30:3, 37:6-8; McCaffrey, 2/14PM, 43:1-5; 80:16-24; AUSA Preston, 2/17 AM, 19:21-22; Gov. Ex. R15b. Thomas and Johnson did not finalize a prior deal; they arranged a new one.
After the arrests, officers had Johnson call Myrie to tell him that the deal had gone through. Doc. 351 at 21. Johnson told Myrie, You came through brother, and, Everythings good, everythings good, all right. Govt Exs. R12, R12B at 1. Govt Brief at 15. Again, this is horribly misleading by omission. There is no surprise that Johnson attempted, one final time, to rope Myrie into a transaction in which he was not involved.5 The trial testimony was that Myrie responded to Johnsons
This was only one of the Governments last-ditch efforts to draw Myrie into the sting, each of which were rebuffed in a manner demonstrating Myries lack of voluntarily participation. On December 9, because Johnson could not get Myrie to take his calls, Johnson asked Thomas to call Myrie from Thomas phone so Myrie would answer. When Johnson got on Thomass phone and tried to talk to Myrie, Myrie didnt respond and got off the phone rapidly. McCaffrey, 2/14PM, 97:1298:10. Immediately thereafter Thomas expressly stated to Johnson that Myrie had no interest in participating in the transaction: Myrie does not want to do nothing, man. Talk to me you know. Thats not him you know? Music, eat, sleep, shit every day. D. Ex. 19; Johnson, 2/16AM, 33:9-34:25. Then, on December 10, an undercover agent attempted to get Thomas to inculpate Myrie, asking Thomas, Where is your friend? (to which Johnson clarified that the man was referring to Myrie). McCaffrey, 2/14PM, 99:2-14. Thomas explained that Myrie wasnt involved by indicating that 7
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statements by saying, no, man, Im resting, and quickly terminated the call. Johnson, 2/16AM, 41:8-43:22; McCaffrey, 2/14PM, 100:5-22. It is irresponsible to advise this Court of what Johnson said, but not that Myrie did not respond with acceptance of Johnsons statement or involvement in the transaction.
Asked whether he had known that Mack had planned to bring a gun to the December 10 transaction, Myrie claimed he had never even heard of Mack until he had met Mack in jail. Govt Brief at 16. By stating that Myrie claimed he had never even heard of Mack until he had met Mack in jail, the Government implies that this claim is suspect. But both the case agent and the trial prosecutor acknowledged that Myrie never met or had any contact with Mack. McCaffrey, 2/14PM, 69:1-3; AUSA Preston, 2/17 PM, 42:8-9. This fact is undisputed.
The evidence established that Myrie was an experienced drug trafficker . . . Govt Brief at 19. The evidence did not establish that Myrie was an experienced drug trafficker. Both the governments primary witness/informant and the case agent testified that there was no evidence that Myrie had ever done a drug deal before. Johnson, 2/15PM, 71:1-8, 72:13-18, 73:4-12; McCaffrey, 2/14PM, 78:21-79:1, 80:16-24. And he had no prior record.
Regardless, the details of the transaction were resolved a short time later, when the group reconvened at the undercover warehouse. Govt Brief at 24. This is false. Although Thomas and Johnson discussed some of the details of a possible deal while at the warehouse, no agreement was reached. Johnson, 2/16AM, 21:11-24, 37:2-3, 49:8-10. And the transaction that went forward on
it was Mack who was the boss. McCaffrey, 2/14PM, 99:2-100:4; Johnson, 2/16AM, 38:10-40:25. 8
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a subsequent day involved entirely different details. Johnson, 2/15AM, 58:13-16, 73:9-12, 2/15PM, 15:9-16:6, 2/16AM 37:2-13, 2/16AM, 27:4-19 29:22-30:3, 37:6-8; McCaffrey, 2/14PM, 43:1-5; 80:16-24; AUSA Preston, 2/17 AM, 19:21-22; Gov. Ex. R15b. Moreover, the group did not reconvene at the warehouse. Myrie was brought there against his will and without being given the choice of whether to participate in viewing cocaine. Johnson, 2/16AM, 10:19-23, 12:9-20, 23:19-24:10; McCaffrey, 2/14PM, 46:13-15, 89:15-90:3.
Phone records show that Myrie had been trying to contact Thomas and Johnson during the transaction. See Doc. 350 at 64, 67-68; Govt Ex. 29. Govt Brief at 27. The evidence does not show that Myrie tried to contact Johnson on December 10. Johnson testified only that he called Myrie, not that Myrie called him. Johnson, 2/16AM, 43:10-44:10. And the records on which the Government relied were a mess, according to the DEAs intelligence research specialist who testified at the trial, and could not be used to demonstrate whether the call was incoming or outgoing. Godshall, 2/16AM, 67:25-78:18. Moreover, the Governments implication that Myrie called Johnson during the transaction for some reason related to his role in a conspiracy is entirely inconsistent with its own argument that Myries plan was to distance himself from the transaction. See, e.g., Govt Brief at 25-27. And it is disproved by the subsequent recorded call from Johnson to Myrie using a phone with private caller-id that Myrie promptly terminated without asking anything about a drug transaction. Johnson, 2/16AM, 41:8-43:22; McCaffrey, 2/14PM, 100:5-22. If Myrie had called Johnson to discuss the deal shortly before, as the Government suggests, he obviously would have engaged in conversation with Johnson when Johnson called him, rather than terminating the call.
The same people were involved . . . Govt Brief at 31. Not so. The evidence at trial was that Thomas brought in different buyers when he met with Johnson on December 9 (a meeting Myrie had no participation in). Johnson, 2/16AM, 27:4-19, 37:6-8. 9
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[T]he evidence established that Johnson offered to give Myrie five kilograms of cocaine as part of the transaction and that Myrie gladly agreed to that arrangement . . . Govt Brief at 34. Johnson offered to give Myrie five kilograms of cocaine during the December 8 transaction, which was never consummated. Johnson, 2/16AM, 21:11-24, 37:2-3; 49:8-10. It is uncontroverted that Myrie invested nothing, paid nothing, and earned nothing from the only conspiracy that existed, the one between Thomas, Johnson, and Mack that was established on December 9. McAffrey, 2/14PM, 41:20-22, 71:3-5, 73:16-18; Johnson, 2/15AM, 58:17-19; AUSA Preston Opening, 2/14PM, 11:9-12. The Governments statement is intentionally drafted to leave the reader with the misimpression that Myrie stood to benefit financially from the transaction, when it is undisputed that this is not so. Again, these are only selected examples of the many misrepresentations in the
Governments presentation of the facts. Given that a mans liberty is at stake, one expects better from our government.
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SUMMARY OF THE ARGUMENT 1. The Government cannot point to evidence that would permit a reasonable factfinder to conclude that Myrie conspired to distribute cocaine. Myrie cannot have conspired with Johnson, a government agent, and yet the Government points exclusively to Myries conversations with Johnson to support the conviction. The Government also has not established how Myrie can be guilty of aiding and abetting Thomas use of the telephone to facilitate a drug transaction. Nothing Myrie said or did assisted Thomas in his use of the telephone, and moreover the December 8 call on which the charge is based did not facilitate the drug deal because it was with a different buyer than the one who eventually agreed to a deal. 2. The Government has failed to satisfy its burden of showing that Myrie was predisposed to participate in criminal activity. The only evidence on which the Government relies is Myries boastful talk regarding his previous involvement with drug transactions, but the evidence is that the government agents were aware that this talk was untrue. Myrie had no previous criminal record, and his reluctance to act coupled with his efforts to extract himself establish a lack of predisposition. 3. The Governments analysis of the district courts speedy trial determination is erroneous. Because the continuances granted by the district court do not qualify as exclusions under the Speedy Trial Act, the clock continued to run and Myries speedy trial rights were violated. 4. (Cross-Appeal) The District Court properly entered a judgment of acquittal on Myries conviction for a violation of 18 USC 924(c). It was not reasonably foreseeable to Myrie that James Mack would possess a gun on December 10 given the fact that he had never met or even heard of James Mack before and that he was sleeping across the State when the meeting took place. No one had mentioned a gun before and there was no evidence to suggest that a gun might be present. Moreover, Mack did not use the gun in furtherance of a drug trafficking crime. In any event, the Government should not have been permitted to proceed with the gun count because the district court erroneously permitted a constructive amendment of the gun count during Myries first trial, and retrial on that issue violated Myries double jeopardy rights.
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ARGUMENT I. THE GOVERNMENT HAS NOT REFUTED ITS FAILURE TO PROVE MYRIE GUILTY ON COUNTS ONE AND FOUR. A. Myrie Did Not Conspire With Anyone To Distribute Cocaine.
The Government has failed to establish that Myrie participated in a conspiracy to distribute cocaine. As the Government acknowledges, Myrie cannot have
conspired with Johnson or any of the sellers (all of whom were Government agents). Govt Brief at 23-24. Accordingly, Myries vague discussions with Johnson (McCaffrey, 2/14PM, 80:16-24) are irrelevant, and a conviction can be sustained only if the Government proved that he reached an agreement with Thomas and/or the unknown buyers. United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). Evidence of such an agreement does not exist, because Myrie never entered into an agreement with these individuals. The Government did not contend at trial that Myrie and Thomas ever discussed or agreed to any sort of drug transaction amongst themselves, and there is absolutely no evidence to that effect. At the conclusion of the conversations between Johnson and Thomas on December 8, the last time that Myrie was even present during a conversation related to drugs, there was no deal in existence. Johnson, 2/16AM, 21:11-24 (agreeing that no deal is ever reached in that warehouse); 37:2-3 (deal
12
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hadnt happened on the 8th); 49:8-10 (no deal already in existence as of December 9, the day after the warehouse meeting). Of course this is true. No one had reached an agreement to do anything on December 8. If they had, the arrests would have taken place right then and there. And contrary to the Governments assertions (most of which are not supported by citations to the record),6 the deal that Thomas, Johnson and Mack did on December 10 was an entirely different deal than anything previously discussed in Myries presence. Johnson, 2/15PM, 15:9-16:6, 2/16AM 37:2-13; see also AUSA Preston, 2/17 AM, 19:21-22. There is simply no substantial evidence connecting Myrie to the drug deal that occurred on December 10. See United States v. Clavis, 977 F.2d 538 (11th Cir. 1992) (requiring substantial evidence connecting an appellant to a conspiracy to affirm conviction). After paying lip-service to the unassailable fact that Myrie cannot have conspired with Johnson (a Government agent), the Government does not point to a single piece of evidence that shows an agreement between Myrie and Thomas (much For example, the Government states without citation that [t]he same people were involved in the agreement that Thomas and Johnson reached on December 9 as in the deal that Thomas and Johnson discussed but did not agree to on December 8. The Government cites no evidence for this proposition, and it is flatly contradicted by the trial testimony of Johnson, its own witness, who testified that Thomas changed the buyers. Johnson, 2/16AM, 27:4-19, 37:6-8. 13
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less between Myrie and the buyers later brought in by Thomas, who Myrie did not know or know of). See United States v. Newton, 44 F.3d 913 (11th Cir. 1994) (association with co-conspirator not sufficient for conviction). In fact, the Government did not call Thomas as a witness at trial even though he was debriefed and cooperated, presumably because he exculpated Myrie and explained that he and Myrie were going to meet Johnson to discuss Myries music career in Naples, not to meet Johnson in Sarasota to do a drug deal. DE 308, 14:12-15:1, 17:22-24. The Government credited Thomas version of events and agreed that Thomas should be awarded safety valve for his full and accurate statement. DE 308. Left only with Johnson, the Government devotes its entire argument to a (highly inaccurate) recitation of Myries conversations with Johnson.7 But because Myrie cannot have conspired with Johnson, and because those conversations did not result in an actual agreement, they cannot be used as evidence that Myrie conspired with Thomas to engage in a drug deal on December 10. United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006) (reversing drug conviction where government failed to prove anything other than conspiracy with informant).
The Governments misleading presentation of Myries conversations with and statements to Johnson is discussed above in the Statement of the Case. 14
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The government argues that Myries presence can be considered in the overall sufficiency calculus. But Myrie was not present on December 10, and was only present on December 8 because he was tricked into being there. No one ever told him that he was going to see cocaine. Instead Johnson lured Myrie to the west coast of Florida by saying that they were going to party on a boat. Only after getting him there, did Johnson surprise Myrie was a flash of cocaine. Johnson, 2/15PM, 24:1225, 99:17-20, 2/16AM, 10:19-23, 12:9-20, 23:19-24:10; McCaffrey, 2/14PM, 46:1315, 89:15-90:3. Myries presence (obtained by trickery) on December 8 is not sufficient. United States v. Sullivan, 763 F.2d 1215 (11th Cir. 1985) (presence does not support conviction). The Government is left to argue that Myrie can be found guilty because he must have known about the December 10 deal. Yet there is no evidence that he knew what was happening on December 10. There are no recordings, no testimony by Johnson, and no testimony by Thomas to this effect. Even if Myrie did know, that is not sufficient to convict, as the Government must prove he was a willful participant. See, e.g., United States v. High, 117 F.3d 464 (11th Cir. 1997) (knowledge is insufficient to convict in conspiracy case; government must also prove that defendant was a willful participant); United States v. Sarro, 742 F.2d 1286 (11th Cir. 1984) (knowledge of conspiracy, presence at 15
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scene, and flight not sufficient to convict because no evidence that defendant agreed to participate in conspiracy). The Government has not made this showing. The government did not identify Myries role in the December 10 transaction (i.e., how he willfully participated in the conspiracy) at trial or in its Brief. He was not the buyer (Ike, Tyke and James Mack), was not the seller (Alexander Johnson and the undercover agents), and was not the broker (Ian Thomas). The Governments halfhearted theory at trial that Myrie was a second broker was abandoned on appeal because that theory makes no sense. As it did with the jury, the government seeks to divert the Court from the lack of any evidence connecting Myrie to the December 10 deal by focusing attention on the transcripts of meetings and calls from months earlier. But those transcripts, while littered with boastful and fanciful talk about drugs, do not suffice for a conspiracy conviction. Stripped of its irrelevant preoccupation with Myries talk, the Government offers no explanation as to how Myrie was a wilful participant in the December 10 deal. To recap: Mr. Myrie was not present at the December 10 deal, did not invest one dollar in the deal, did not receive or expect to receive one dollar from the deal, had never spoken to the buyers or even heard of them, and had no communication regarding the drug deal after he left the surprise flash warehouse meeting on December 8 despite Johnsons repeated efforts to communicate with him. See United 16
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States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994) (where government attempts to prove conspiracy by circumstantial evidence, reasonable inferences and not mere speculation must support the jurys verdict). For these reasons and the many others set forth in Myries Initial Brief, judgment of acquittal should be entered on Count One. B. Myrie Did Not Aid And Abet Thomas Use Of The Telephone To Facilitate A Drug Conspiracy.
The Governments argument regarding Myries Count Four conviction for a violation of 21 U.S.C. 843(b) similarly fails. Once again, the Government relies on a December 8 telephone conversation regarding a potential conspiracy that was never consummated. Govt Brief at 36-37. Even assuming for the moment that Myrie aided and abetted Thomass conversation with potential buyers, no one ever reached a deal with these particular buyers,8 Johnson, 2/16AM, 27:4-19, 37:6-8, and thus Thomass conversation with them did not facilitate the conspiracy. The Government attempts to wriggle around this problem by contending that proof of an attempt would also be sufficient to sustain a facilitation conviction under 843(b). Govt Brief at 38. In the context of this case, however, this argument
As such, the Governments statement that Thomas called the Georgia cocaine purchaser, Govt Brief at 36, is misleading. Thomass December 8 call was to a Georgia purchaser, but it was not to the Georgia purchaser. 17
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is entirely unavailing because Myrie was acquitted of Count Two, which charged Myrie with knowingly and willfully attempting to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. 841(a)(1) and 846. And, of course, there can be no attempt to conspire. Moreover, Myrie did not aid and abet Thomas even if Thomass use of the telephone on December 8 did facilitate a drug transaction. The sole basis of this count is Myries statement to Thomas, [F]ind how much [he] wants. Govt Brief at 37, citing Doc. 340 at 74. But what the Government overlooks is that Thomas never posed the question suggested by Myrie to the potential buyers. Thus, Myrie did not aid and abet. By way of analogy, the Governments argument is that if Myrie is sitting in a room while a friend is on the telephone negotiating to purchase a home, and Myrie suggests to the friend that he should ask the sellers to include the furniture but the friend does not make this request, that Myrie has nonetheless aided and abetted the friends purchase of a home. This is obviously incorrect, and the same is true with regard to Myries suggested inquiry which was not adopted by Thomas. Thomass December 8 telephone call did not facilitate a drug transaction because it was not with the sellers with whom Thomas reached a deal on December 9, and Myrie did not aid and abet the facilitation or call in any event. The 843(b) count should be dismissed. 18
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II.
MYRIE WAS ENTRAPPED BY A NEFARIOUS GOVERNMENT AGENT. In reading the Governments entrapment discussion, one gets the feeling that
the appellate lawyer writing the Governments brief did not have access to the actual record developed below. It is hard to imagine how it is possible that someone with access to the full record could argue to this Court that no evidence supported Myries inducement claim. Govt Brief at 41 (emphasis added). The undisputed evidence derived from the Governments own witnesses showed: Johnson purposefully gave Myrie alcohol and encouraged him to drink before Johnson raised the subject of drugs. E.g., Johnson, 2/15PM, 63:16-20 (Johnson: its part of the game Im playing there). Myrie never initiated a conversation about cocaine. It was always Johnson who initiated a conversation about cocaine. McCaffrey, 2/14PM, 92:15-23; see also, e.g., Johnson, 2/15PM, 68:5-7 (Johnson initiating drug conversation after an hour and eight minutes). Cocaine was not discussed on any of the recorded calls (only when Johnson brought it up at the live meetings). Johnson relentlessly pursued Myrie over a five month span, and Myrie repeatedly declined meetings, cancelled them, or failed to show up. Johnson, 2/15PM, 87:7-89:11, 89:18-94:8 (Johnson contacting Myrie on August 4, 5, 24, September 3, 12, Oct. 14, Nov. 3), 94:3-8 (admitting that for five months he was trying to get Myrie over to see him and for five months Myrie either cancelled or said no); Gov. Ex. R5b, R6b, R7b, R8b, R9b. Johnson admitted that he was never going to stop pursuing Myrie, despite the fact that Myrie kept saying no, until he was told he had to stop (which he never was). Johnson, 2/15PM, 89:7-17. 19
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Johnson was motivated by his current dire financial circumstances despite having previously earned more than $3.3 million as a confidential informant for various government agencies. McCaffrey, 2/14PM, 42:11-13, 82:25-83:6; Johnson, 2/15PM, 27:8-16, 43:22-44:6. Johnson used concepts of family, helping Myries career, and engaging in a legitimate seafood business to entice Myrie to meet. Johnson, 2/15PM, 82:984:4. Myrie never agreed to meet and do a drug deal. Instead, after more than four months of pursuit, Johnson ramped up his efforts in December. He called and texted Myrie five times in a three day period, then tricked Myrie to Sarasota by giving him a guilt trip and telling him they were going to Naples to hang out on a boat. Johnson directed Myrie on to Sarasota only after he arrived in Naples. Johnson, 2/15PM, 94:9-97:6, 98:24-99:9, 101:14-102:6; McCaffrey, 2/14PM, 89:15-25. Myrie was never told that Johnson was taking him to see drugs. Johnson, 2/15AM, 92:3-5, 2/16AM, 10:19-23, 12:9-20; McCaffrey, 2/14PM, 89:1590:3; 93:3-12. The DEA had worked with Johnson to set this up as a surprise flash. McCaffrey, 2/14PM, 46:13-15; Johnson, 2/16AM, 23:19-2:10. When Johnson told Thomas to take another look at the cocaine, Myrie said Junior, stop it. Johnson, 2/16AM, 23:7-13; Gov. Ex. R23b at 7. Myrie refused to take Johnsons calls after the December 8 surprise flash. McCaffrey, 2/14PM, 97:1-4; Johnson, 2/16AM, 23:17-26:13.
The Governments assertion that there is no evidence of inducement, in the face of these undisputed facts, reflects the lack of candor in the Governments approach. Myrie plainly was induced, and never would have continued his boastful talk or even
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his relationship with Johnson if not for Johnsons expert manipulation and constant pushing. With regard to the predisposition element, the Government did not establish Myries predisposition to participate in a drug sale. The Government strings together portions of conversations, weaving a story that sounds good but is simply not accurate. For example, the Government argues the following: If Myrie had not been predisposed to traffic cocaine, he would not have had the discussions he had with Johnson, he could have walked away with Johnson following the flight, and he probably never would have seen Johnson again. Instead, Myrie gave Johnson his personal contact information and agreed to meet with him the very next day. Doc. 345 at 15. During that meeting, Myrie openly told Johnson he had friends who wanted to transport cocaine from the Caribbean to Europe... Govt Brief at 43. This passage suggests that Myrie is the one who proposed getting together, when in fact it was Johnson who called Myrie. Johnson, 2/15PM, 53:4-11. Moreover, the passage suggests that Myrie agreed to meet with Johnson to discuss cocaine, when the testimony was that they agreed merely to have a bite to eat. Id. at 53:9-11. The Government omits that Myrie brought not just one friend but two, all of whom enjoyed lunch and drinks with Johnson, and that Johnson ordered multiple bottles of wine. Johnson, 2/15PM, 54:4-9; Myrie, 2/16PM, 34:11-14. It also leaves out that Myries so-called open discussion regarding his friends who wanted to transport cocaine came two hours and 13 minutes into their get-together, just as they 21
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were about to get into their cars, and only in answer to Johnsons question when Johnson finally decided he had to bring up drugs because Myrie had not. Johnson, 2/15PM, 54:16-19, 56:13-15, 57:3-21, 57:14-21. And it omits that Myrie tried to avoid the conversation, saying to Johnson Relax, not now, and then relax again. Johnson, 2/15PM, 66:5-10; D. Ex. 24. Nothing about this encounter suggests predisposition on Myries part. The transcript makes clear that this get-together was not billed as a meeting to further a drug deal, but merely a social gathering between two new acquaintances who wanted to have a nice meal. It also makes clear that if not for Johnsons urging, Myrie would not have discussed drugs. The same is true in every subsequent meeting between the parties. See, e.g., Johnson, 2/15PM at 68:5-7; McCaffrey, 2/14PM, 92:15-23. The Government argues that because Myrie spoke openly to Johnson about drug transactions shortly after meeting him, this is evidence that Myrie was predisposed to engage in drug transactions.9 Govt Brief at 44. But if anything Myries naive willingness to boast about alleged drug dealing is evidence of the
The Government also claims that Myrie demonstrated his sophistication in the cocaine trafficking industry by taste-testing the cocaine that he and Johnson were negotiating to purchase. This episode demonstrated only that Myrie has watched a lot of movies. Myrie did not taste-test the cocaine until Thomas did, Johnson, 2/16AM, 20:14-20, and then he merely mimicked Thomas and did not offer any comment thereafter to suggest any expertise in cocaine tasting. 22
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contrary, as no actual drug dealer would give his real name and telephone number to a person he just met, and then openly brag about the drug dealing in his past. Likewise, no actual drug dealer would repeatedly use his regular phone when discussing a potential drug deal. See United States v. Jemison, 310 Fed. Appx. 866, 875 (6th Cir. 2009) (discussing DEA expert testimony that drug dealers often have multiple cell phones with different numbers); McCaffrey, 2/14PM, 101:25-102:1. In fact, Ian Thomas had two cell phones while Myrie did not. McCaffrey, 2/14PM, 101:15-102:6. To be sure, Myrie on many occasions accepted Johnsons invitation to talk about drug deals, and boasted (falsely) about drugs. However, this is insufficient to establish his predisposition. It is undisputed that Myrie had never in fact done any of the things he boasted about. As the case agent admitted, he looked for but could not find any evidence whatsoever of Myries prior involvement in drug transactions. McCaffrey, 2/14PM, 78:21-79:1, 80:16-24. Johnson also acknowledged that he knew Myrie had not, in fact, done any of the things he boasted about. Johnson, 2/15PM, 73:4-12. Johnson explained that Myries talk made no sense and that it was inconsistent with someone who was actually a drug dealer. Johnson, 2/15PM, 71:1-8, 72:13-18, 73:4-12. And significantly, Myrie had no prior criminal record. See United
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States v. Moon, 205 Fed. Appx. 782, 785 (11th Cir. 2006) (identifying prior drug convictions as relevant to predisposition analysis). The Government did not call a single witness to establish Myries predisposition.10 Instead, government witness Johnson (a real drug dealer) acknowledged that what Myrie was saying about prior drug deals made no sense and that he had to correct the things Myrie was saying. Johnson, 2/15PM, 71:1-8, 72:1318, 73:4-12. In other words, the Government was well aware that Myrie was just talking. See, e.g., Johnson, 2/15PM, 74:12-81:2, 81:3-4. Johnson, recognizing that Myrie was not predisposed to go forward with a drug deal, stated that it was a miracle he had pulled out any deal at all (referring to the deal with Thomas, not Myrie). Johnson, 2/16AM, 36:17-37:1 The most relevant point to take from Myries willingness to talk about drug deals is how substantially it contrasts from his unwillingness to actually do a drug deal. It is action the ready commission of the criminal act that demonstrates predisposition. U.S. v. One 2007 Toyota FJ Cruiser, 2011 WL 5562752, at *8 (N.D.. Ga. Nov. 8, 2011), citing Jacobson v. United States, 503 U.S. 540, 550 (1992); Edwards v. United States, 2011 WL 1357687, at *8 (M.D. Fla. April 11, 2011). Yet By way of contrast, Myrie did call witnesses who testified that he is lawabiding and not a drug dealer. Black, 2/16AM, 93:11-94:12; Morgan, 2/16PM, 5:246:25; Marley, 2/16PM, 13:20-14:3. This evidence was uncontested. 24
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despite months of effort on Johnsons part, Johnson never succeeded in putting a deal with Myrie together. He could not get Myrie to meet with him to do a drug deal; he only finally got Myrie to Sarasota by promising a nice social outing on a boat. Johnson, 2/15PM, 101:14-102:6; McCaffrey, 2/14PM, 89:15-25; Myrie, 2/16PM, 42:18-43:1. And even then, after tricking Myrie to the warehouse using a surprise flash, he still couldnt get a deal with Myrie done. Johnson, 2/16AM, 21:11-24, 37:23, 49:8-10. When Johnson finally resorted to the ruse of calling from Thomas phone to get Myrie to take his call on December 9, Myrie showed no interest in discussing a drug transaction and terminated the call. McCaffrey, 2/14PM, 97:12-98:10. The same thing happened on December 10. Johnson, 2/16AM, 41:8-43:22 (Myrie stated no, man, Im resting, and quickly terminated the call when he realized that it was Johnson). And when push came to shove, the Government was told expressly that Myrie simply had no interest in pursuing a drug deal: he does not want to do nothing, man. Talk to me you know. Thats not him you know? Music, eat, sleep, shit every day meaning all Myrie was interested in was music, not drugs. D. Ex. 19; Johnson, 2/16AM, 33:9-34:25 (emphasis added). Despite the incredible pressure and
inducement Johnson applied to Myrie, Myries lack of predisposition manifested in his unwillingness to act. United States v. Pillado, 656 F.3d 754, 766 (7th Cir. 2001) 25
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(discussing relevance of a defendants reluctance to act). This is critical, as one primary factor considered by the Eleventh Circuit in evaluating predisposition is whether the defendant was given the opportunity to back out of a deal and failed to do so. United States v. Moon, 205 Fed. Appx. 782, 786 (11th Cir. 2006); United States v. Brown, 43 F.3d 618 (11th Cir. 1995). The facts of this case present a much more compelling case for reversal than the facts of Jacobson v. United States, 503 U.S. 540, 550 (1992), the leading case on entrapment. In Jacobson, the Supreme Court reversed a jury conviction where the defendant ordered child pornography through the mail. The Supreme Court found that the government did not prove predisposition, even though the defendant testified (like Myrie), even though the defendant talked quite a bit about doing this in the past (like Myrie), and even though the talk was quite graphic (like Myrie).11 Although the defendant in Jacobson went so far as to respond to surveys and letters regarding child pornography, the Government had no evidence that petitioner had ever
For example, Jacobson expressed interest in good looking young guys (in their late teens and early 20's) doing their thing together, id. at 545, and asked the Government posing as an undercover company to send him more information about lusty and youthful lads and lasses of the neophite [sic] age because he was interested in teenage sexuality. Id. The graphic talk in Jacobson much more clearly demonstrated someone who was actually experienced with what he was talking about than Myries off-the-wall discussions about drugs, which were discounted by the case-agent and by Johnson. 26
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intentionally possessed child pornography in the past or that he was engaged in illegal correspondence with persons other than the Government. Id. at 546. So too for Myrie despite a thorough investigation by the DEA, no evidence was obtained to show any connection of Myrie to drug trafficking. The search of Jacobsons house revealed no materials other than those sent by the Government and the Bare Boys magazines. Id. at 547. Similarly, the search of Myries house after his arrest revealed no evidence of drug trafficking, and the Government found no evidence derived from Myries financial or tax records to show that he was a drug trafficker. Jacobson also underscores the relevance of Myries failure to act on Johnsons months of pressure. In Jacobson, the Supreme Court noted that the defendant was not simply offered the opportunity to order pornography, after which he promptly availed himself of that opportunity. Id. at 540. Instead, it took the Government months of repeated Government mailings and communications. Id. Myries case is stronger in this regard: he, like Jacobson, did not promptly avail himself of Johnsons overtures. More significantly, however, he never availed himself of the invitations to do a drug deal with Johnson. Instead, Johnson had to trick him into the warehouse on December 8. By contrast, Jacobson actually chose to knowingly order child pornography (albeit after months of Government inducement). Nonetheless, the 27
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Supreme Court found that the Government did not prove that this predisposition was independent, and not the product of the attention that the Government had directed at petitioner. Id. at 550. The Jacobson Court concluded with a quote that applies with equal force here: When the Governments quest for convictions leads to the apprehension of an otherwise law-abiding citizen, who if left to his own devices, likely would have never run afoul of the law, the courts should intervene. Id. at 554-55. Here, there is no question that Myrie would never have found himself mixed up in this case had Johnson not pushed for months, had he not tricked Myrie into the warehouse, and had he not manipulated Myrie with Myries sense of family and his commitment to advance his career. All of this occurred because Johnson was interested in making money due to his financial woes despite having made $3.3 million as a confidential informant. This Court should intervene. III. MYRIES SPEEDY TRIAL RIGHTS WERE VIOLATED. The Governments contention that Myries speedy trial clock did not run is simply erroneous. As set forth in detail in Myries Initial Brief, Myries trial did not proceed until 93 days after the speedy trial clock expired because the district court repeatedly continued Myries trial. These continuances did not qualify as excludable time under the Speedy Trial Act, 18 U.S.C. 3161. 28
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The Governments Brief confirms that it is hanging its hat on the catchall exclusion, 3161(h)(7)(A). Govt Brief at 47 (Most pertinent here, section 3161(h)(8)12 permits a district court to grant a continuance and to exclude the resulting delay if the court finds that the ends of justice served by granting the continuance outweigh the publics and defendants interests in a speedy trial.). Yet in making its argument, the Government confuses the requirements of the different avenues for excluding time in its attempt to avoid the consequences of the speedy trial violation. The primary flaw in the Governments argument is that the catchall exception does not say that the court may weigh the interests of codefendants. United States v. Theron, 782 F.2d 1510, 1513 (10th Cir. 1986) (emphasis added). Instead, 3161(h)(7)(A) expressly requires the court to weigh only the best interests of the public and the defendant. Zedner v. United States, 547 U.S. 489, 509 (2006); 3161(h)(7)(A). The Government ignores this critical statutory language altogether, and asserts only that co-defendant Macks interests (not Myries interests) were purportedly served by the continuances.
Section 3161(h)(8) is an earlier version of 3161(h)(7)(A). The Governments reference must have been intended to refer to 3161(h)(7)(A), which tracks the Governments language, as the current 3161(h)(8) refers to evidence in a foreign country and is not applicable here. 29
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Moreover, even if the court was permitted to weigh the interest of a codefendant in calculating Myries speedy trial clock under the catchall exception (which it was not), the district courts reason for granting the continuance was not the interests of the co-defendant, but rather the interests of the Government. The Governments investigation into Macks counsel and its requests for time to disqualify him did not stem from any altruistic concern that Mack was lacking zealous representation, but rather from the Governments desire to obtain Macks cooperation against Atlanta targets (which Macks initial lawyer was supposedly thwarting). The Government states that the trial could not proceed given the evidence that [Macks] counsel was being paid by people whose interests conflicted with Macks. Govt Brief at 50. But Mack knew full well who was paying his legal fees and what their interests were. Despite this knowledge, there is no evidence in the record that Mack ever expressed a concern about his representation or requested a new lawyer. The Government sought disqualification to further its own interest in obtaining Macks cooperation against alleged drug dealers in Atlanta. This is not an end of justice that can outweigh Myries speedy trial rights. In addition, the Government has not excused away the district courts failure to adequately set forth in the record the reason for the continuances. For good reason, the catch-all exception demands on-the-record findings and specifies in some detail 30
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certain factors that a judge must consider in making these findings. Zedner, 547 U.S. at 509; see also Bloate v. United States, 130 S. Ct. 1345, 1357 (2010). Significantly, as the Government acknowledges, the court must put those findings on the record by the time the court rules on a defendants motion to dismiss under section 3162(a)(2). Govt Brief at 54. This did not happen. On April 8, Myrie objected to postponement of the trial from April 19 to June 21 (a 74 day delay), and requested a status conference to reconsider going forward with the trial or transferring to another judge. DE69. In that filing, Myrie stated that he wants to go to trial as soon as possible. Id. The district court denied the motion without setting forth any reason and without a hearing. DE70. On May 28, the court continued the trial from June 21 until the September trial calendar (more than 70 days), again without providing any explanation. DE82 and 83. Myrie immediately objected, moved to dismiss or for severance, and filed a speedy trial demand. DE84. On June 1, the district court denied Myries motion to dismiss for violation of the Speedy Trial Act. DE86. Yet the district did not set forth its reasons for denying the motion to dismiss until August 26. DE112. This was long past the time the court had denied Myries motion to dismiss, and by the Governments own account it therefore was entirely too late. This is especially so when combined with the facts that the court did not permit an 31
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evidentiary hearing or any hearing at all regarding Myries request for a speedy trial or for severance, United States v. Jordan, 544 F.3d 656, 665 (6th Cir. 2008), and that the Government and the district court engaged in ex parte communications and actually went so far as to leave the governments sealed motion off of the docket of sealed documents. Govt Brief at 50. Finally, the Government has ignored entirely that because the reason for the continuance was an issue with Myries co-defendants, and not Myrie himself, the continuances do not properly fall within 3161(h)(7)(A), but rather under 3161(h)(6). It is unsurprising that the Government prefers the catch-all, as the codefendant exception (3161(h)(6)) permits only a reasonable period of delay. Yet neither the district court nor the Government may rely on the catchall exclusion when a specific exclusion applies. See Bloate v. United States, 130 S. Ct. 1345, 1354-5 (2010) (holding that enumerated exclusions govern conclusively for the category of proceedings they address unless the statute specifically indicates otherwise); United States v. Theron, 782 F.2d 1510, 1513-14 (10th Cir. 1986) (finding that ends of justice finding was improper to toll the 70 day period of the Speedy Trial Act where the exclusion specific to co-defendants applied). Here, as explained in detail in Myries Initial Brief at 58-59, the delay attributable to the Governments interest in gaining Macks plea and cooperation was 32
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unreasonable and excessive under the circumstances, especially given that Myrie was incarcerated and repeatedly requested a prompt trial. See United States v. Hall, 181 F.3d 1057, 1063 (9th Cir. 1999) (holding that it was not reasonable for defendant to be carried along in the two continuances for 77 days, that co-defendant should have been severed, and that speedy trial rights were violated). IV. THE DISTRICT COURT PROPERLY ENTERED A JUDGMENT OF ACQUITTAL ON THE 924(C) GUN COUNT. Even if the Court declines to reverse Myries convictions on Counts One and Four,13 the Court should find that the district court properly granted a judgment of acquittal on Count Three, which charged Myrie under a Pinkerton theory with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. 924(c). As the district court explained: This is an unusual case in that the defendant here, Mr. Myrie did not know the buyers, did not know anything about their operation or their method of operation, did not know who they would send down to purchase drugs, and had no way of knowing really whether that person carried a gun or was known to carry a gun or whether the people in Georgia used guns when they purchased drugs. ...
If this Court rules in Myries favor as to the impropriety of his convictions on Count One for any of the reasons set forth above, it is not necessary for the Court to consider the Governments cross-appeal regarding Count Three (the 924(c) gun count). A conviction on Count Three cannot stand in the absence of a conviction on Count One. 33
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Further, Mr. Myrie was not present when the drug transaction took place, so he couldnt have known anything about the gun on the particular day in question. DE337:11. Nothing the government argued in its brief undercuts any of these findings, and the Governments only argument left on appeal as it was below is that drugs and guns go together, but as the district court explained: the assumption that guns and drugs go together is not sufficient under 924(c). Id. It was the Governments burden to prove that a conspirator used a gun in furtherance of a drug trafficking crime and that it was reasonably foreseeable to Myrie that this would occur. Govt Brief at 58, citing United States v. Diaz, 248 F.3d 1065, 1099-00 (11th Cir. 2011). Yet the Government proved neither element, as 1) James Macks possession of a gun was not reasonably foreseeable to Myrie; and 2) Macks gun was not used in furtherance of a drug crime. In addition, Count Three was barred because it violated Myries Double Jeopardy rights. In the alternative, the gun count should be remanded to the district court for a determination of Myries entitlement to a new trial. A. Myrie Could Not Reasonably Foresee That Someone He Did Not Know Or Heard Of Might Use A Gun In Furtherance Of A Drug Deal That He Did Not Even Know About.
Because there was no evidence that possession of a gun by another was reasonably foreseeable to Myrie, the district court correctly granted a judgment of 34
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acquittal on this ground. The Supreme Court precludes vicarious liability for the substantive offense committed by another member of a conspiracy if that offense could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). Similar to its argument in support of the in furtherance prong, discussed below, the Government relies solely on the connection between drugs and guns to establish foreseeability. But although courts have recognized a connection between guns and drugs, there is no automatic presumption of foreseeability in 924(c) cases. United States v. Casteneda, 9 F.3d 761, 767 (9th Cir. 1993); United States v. Powell, 929 F.2d 724, 729 (D.C. Cir. 1991). To demonstrate foreseeability, the government must prove something more than the general proposition that guns and drugs go together. The Government relies solely on the connection between guns and drugs because there is nothing here that can establish foreseeability, and there is much to establish its absence. First, in cases involving 924(c) convictions based on Pinkerton, the defendants typically know the co-conspirator who possessed the gun. See, e.g., United States v. Qasim, 294 Fed. Appx. 509 (11th Cir. 2008); United States v. Bannister, 285 Fed. Appx. 621 (11th Cir. 2008). Yet of the two conspirators in the transaction (James Mack and Ian Thomas), Myrie knew only Thomas, and Thomas 35
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did not have a gun nor was there any evidence that Thomas had carried a gun on any previous occasion. Only Mack possessed a gun (albeit outside the warehouse and triple-wrapped in an enclosed compartment in his car). But the evidence is
uncontradicted that Myrie did not know Mack, and had never even heard his name.14 McCaffrey, 2/14PM, 69:1-3; AUSA Preston, 2/17 PM, 42:8-9; Myrie, 2/16PM, 21:819. The Governments claim that Myrie could have been lying when he had denied knowing that Mack was going to bring a gun to the deal on December 10th, Govt Brief at 69, is nonsensical given that it was absolutely uncontroverted that Myrie had not ever even heard of Mack or of the Georgia buyers in general. It therefore could not have been reasonably foreseeable to Myrie that Mack would bring a gun to the transaction. Second, contrary to the Governments statement that Myrie knew the transaction would occur, Govt Brief at 62, there is no evidence that Myrie knew the transaction would occur. While there was general discussion between Thomas and Johnson (not Myrie) about setting up a large transaction with certain buyers that Thomas spoke with on the phone (different buyers than those who ended up later
Ian Thomas, who did know Mack and who was present on December 10 at the warehouse with Mack, was not convicted under 924(c) for Macks firearm, as the government dismissed this charge against Thomas while perversely continuing to press it against Myrie. 36
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making a deal), according to the Governments own witness there was no deal in place as of the time Myrie left and went home. Johnson, 2/16AM, 21:11-24, 37:2-3, 49:8-10. There is no evidence whatsoever that Myrie spoke with anyone thereafter regarding a drug transaction or that he had any idea that a deal would go forward without his participation on December 10.15 And it obviously could not have been foreseeable to Myrie that a gun would be brought to a transaction about which he was not even aware. See District Court, Sentencing Hearing, at 11:21-24 (Further, Mr. Myrie was not present when the drug transaction took place, so he couldnt have known anything about the gun on the particular day in question.). Third, despite the existence of numerous tape-recorded conversations, Govt Brief at 62, there was not a single reference at any time to the use or possession of a gun, in Myries presence or otherwise.16 This case, then, contrasts readily with most
15
To the contrary, the evidence is that Myrie affirmatively attempted to avoid speaking with Johnson altogether. McCaffrey, 2/14PM, 97:12-98:10, 100:5-22; Johnson, 2/16AM, 41:8-43:22. This is yet another example of the Governments repeated use of facts in a misleading fashion. The Government states that [t]he evidence in this case most notably Myries numerous tape-recorded conversations with Johnson established that Myrie had brokered a cocaine sale between Thomas, Johnson, and purchasers in Georgia. . . . Govt Brief at 62. There is not a single recorded conversation in which Myrie brokered a cocaine sale with Thomas, Johnson, and purchasers in Georgia (or with anyone else), nor was this even the Governments theory at trial. At most, the Government alleged that Myrie had introduced Thomas to Johnson, and that Thomas brokered the transaction. Indeed, Johnson acknowledged that Thomas, and 37
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Pinkerton convictions in which there has been at least some discussion of or reference to a gun. For example, in United States v. Sanders, 421 F.3d 1044, 1049 (9th Cir. 2005), an appellate court found that use of a firearm was foreseeable because the defendant was present when the co-conspirators agreed to use a gun and the defendant stated that's cool, too, if you I guess if you want to use a gun, use a gun. Similarly, in United States v. Bailey, 235 F.3d 1069 (8th Cir. 2000), a case relied upon by the Government, the guns actually were brought to the attention of the other conspirators on several previous instances during the course of the illegal activity. Id. at 1072, cited in Govt Brief at 61.17 None of that type of evidence was presented here. There was no discussion amongst any of the participants in the transaction much less Myrie regarding a gun. Given the heavy reliance on recorded
not Myrie, was the broker: Johnson, 2/15PM, 24:8-21; Gov. Ex. R24b (after 1:05:00 restart) (Johnson: Because you, you broke the deal. Thomas: Yeah. I put deals together, Im the, Im the middleman. I put em together and make it happen.). The Government cites three cases in addition to Bailey for the proposition that Courts infer knowledge of firearms, regardless of whether the evidence shows that the defendants previously discussed or mentioned guns. Govt Brief at 61. However, each of these cases pre-date the 1998 amendment to 924(c), and arose under a version of the statute in which liability required a lesser showing. Moreover, in those cases the guns (usually multiple guns) were found in the same room as ongoing criminal activity where it was reasonable to assume that their presence was known to the conspirators or where there was actually evidence that the guns had been seen by the conspirators. See, e.g., United States v. Odom, 13 F.3d 949, 954 (6th Cir. 1994). 38
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conversations and the involvement of a cooperating government informant, this fact is significant. Myrie did not admit that he knew that the people he was dealing with at the warehouse might have even had guns with them. Govt Brief at 63. Nor did he testif[y] that he had expected the presence of guns at the warehouse. Id. at 69. These assertions are gross and improper distortions of the trial testimony. In the testimony quoted in the Governments Brief, the prosecutor was questioning Myrie about how he was scared when he was brought, unknowingly and against his will, to the warehouse on December 8 not on December 10. And Myrie did not testify that he had any belief one way or another while at the warehouse or in that general time frame regarding whether the dealers might have guns; he certainly did not testify that he had expected the presence of guns at the warehouse. Govt Brief at 69. He did not even expect to be at the warehouse, so he obviously did not form an expectation about whether guns would be present. As is clear from the transcript, at the moment he was questioned by the Government during his testimony, Myrie merely expressed a current estimation i.e., he concurred while sitting there on the witness stand that the prosecutor might be correct when the prosecutor stated that the sellers might even have had guns with them. DE341, Tr. 2/17PM at 3:25-4:1. Myrie in no way indicated that he had in any way contemplated the presence of guns on December 39
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8, much less on December 10 when he did not even know that anyone would be at the warehouse. This Court has recognized the special care to due process considerations that are important when evaluating Pinkerton liability for minor participants like Myrie.18 United States v. Alvarez, 755 F.2d 830, 851 n. 27 (11th Cir. 1985) (noting that courts should examine Pinkerton liability carefully for someone who had a minor role in the conspiracy if he did not have actual knowledge of at least some of the circumstances and events that culminated in the substantive crime); United States v. Casteneda, 9 F.3d 761, 767 (9th Cir. 1993) (holding that it would violate due process to find a defendant vicariously liable under 924(c) when the relationship between the defendant and the substantive offense is slight, stating that the known nexus between drugs and firearms did not create a presumption of foreseeability), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.
The Government contends that Myries claim of having been a minor participant in the transaction was ludicrous. Govt Brief at 82. The only thing ludicrous is the Governments assertion to the contrary. At most, according to the Governments own argument and witnesses, Myries role was to introduce someone else who in turn brokered a deal from which Myrie earned nothing, paid nothing, and did nothing. See, e.g., Johnson, 2/15AM, 58:17-19, 2/15PM, 26:17-19; McCaffrey, 2/14PM, 71:3-5, 73:16-17; Preston, 2/14PM, 11:9-12. He did not know the buyers or any of the sellers besides Johnson, he was not present at the transaction, and he had no responsibility to do anything at all in relation to the transaction. If the Court finds that he participated, then he plainly was no more than a minor participant. 40
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2000). Here, Myrie had no knowledge of any of the events surrounding the gun and did not know Mack, so imposition of Pinkerton liability is improper.19 Nor was Myrie a seasoned drug dealer with previous experience at drug deals involving guns. While Myrie boasted to Johnson several times about his contribution in previous transactions, this was all baloney. Johnson admitted that he didnt believe what Myrie said about his previous drug experience, and even testified that he had to correct Myrie because what Myrie was saying made no sense to a real drug dealer. Johnson, 2/15PM, 71:1-8, 72:13-18, 73:4-12; Myrie, 2/16PM, 37:24-39:3. And the case agent admitted that he looked for, but failed to uncover, any evidence of prior involvement in drug transactions. McCaffrey, 2/14PM, 78:21-79:1, 80:16-24. Moreover, by the Governments own account, Myrie repeatedly asserted that he never touches cocaine himself and always kept himself distant from the cocaine itself. Govt Brief at 21. Even if Myries boasts were to be believed, he never boasted about attending drug deals or being in the presence of drug dealers. There
The reason that courts pay special attention to Pinkerton liability for minor players is due to the extreme consequences of a conviction based on such a theory. Here, if the conviction is permitted to stand, Myrie would be sentenced to a consecutive 5 years in federal prison on top of his already lengthy 10 year sentence for a total of 15 years for someone who everyone agrees did not carry the gun and did not know the person who had it. 41
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is no evidence that Myrie had any prior experience with drug transactions that would cause him to expect a gun to be present. Because the Government has presented no evidence that the gun was reasonably foreseeable to Myrie, the district court properly entered judgment of acquittal. B. Macks Gun Was Not Used In Furtherance Of The Drug Deal.
Just as significantly, Macks gun categorically was not used in furtherance of a drug trafficking crime, as required to sustain a conviction under 924(c). As the Government acknowledges, in order to establish that the gun was used in furtherance of a drug trafficking crime, it had to prove that the firearm helped, furthered, promoted, or advanced the drug trafficking. Govt Brief at 58, citing United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002). Yet the Government presented no evidence that the firearm helped, promoted, or advanced the crime in any way. After Mack and Thomas were arrested inside the Sarasota warehouse on December 10 (while Myrie was home in Tamarac, across the State), a gun was found in Macks car, concealed in a secret compartment and hidden in a garbage bag, inside of a ziploc bag, inside of a paper bag. It was not used or even carried during the drug transaction. No one discussed in advance that Mack (or anyone else) would bring a gun. It was not referred to during the course of the meeting nor was it shown to 42
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anyone. And it was not readily accessible to Mack during the course of the transaction. Faced with these facts, each of which compel against a 924(c) conviction,20 the Government fails to identify a single way in which the gun helped, furthered, promoted, or advanced the drug trafficking. Instead, the Government once again resorts to an argument that drugs and guns go together like peas and carrots. Govt Brief at 60 (quotation omitted). Reliance on this analogy, however, is nothing more than an attempt to ignore the requirement that the gun actually must play some role in the drug transaction, i.e., it must further the transaction. See United States v. Chavez, 549 F.3d 119, 130 (2d Cir. 2008) (The government does not establish that a firearm was possessed in furtherance of drug trafficking merely by relying on the proposition that drug dealers generally use guns to protect themselves and their drugs . . . The nexus inquiry is fact-intensive.).
See, e.g., United States v. Vazquez, 428 Fed. Appx. 945, 947 (11th Cir. 2011) (sustaining 924(c) conviction in light of defendants statement to undercover detectives that everyone at the transaction would be strapped, i.e., carrying a firearm); United States v. Diaz, 377 Fed. Appx. 883, 887 (11th Cir. 2010) (referencing testimony that the defendant stated that he would start shooting everybody if anything went wrong as supportive of 924(c) count);United States v. Kirby, 208 Fed. Appx. 694, 696 (11th Cir. 2006) (noting firearm in defendants boot was easily accessible); United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001) (In order for the possession to be in furtherance of a drug crime, the firearm must be strategically located so that it is quickly and easily available for use.). 43
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This Court has rejected the argument that drug dealers frequently carry a firearm as insufficient to meet the in furtherance of test. Timmons, 283 F.3d at 1252-53 (citing H.R. Rep. 105-344, at 12 (1997)). Even proof that a gun was present within the defendants dominion and control during a drug trafficking offense is insufficient to sustain a 924(c) conviction without a nexus between the firearm and the drug trafficking activity. United States v. Suarez, 313 F.3d 1287 (11th Cir. 2002). As this Court stated in Timmons, the plain meaning of 924(c), uncontradicted by the accompanying legislative intent, dictates that the presence of a gun within the defendants dominion and control during a drug trafficking offense is not sufficient by itself to sustain a 924(c) conviction. Timmons, 283 F.3d at 1253. It is beyond reasonable dispute that if mere presence of a gun within the defendants dominion and control is not sufficient to sustain a 924(c) conviction, then mere presence of a gun outside of the defendants dominion and control is even more insufficient. And that is all that the Government offers here. The gun was not within Macks dominion or control during the offense. To the contrary, it was totally inaccessible: it was in the car while everyone was in the warehouse, and it was hidden in a secret compartment and within numerous bags. Under such circumstances, there is no basis for a finding that the gun was used in furtherance of a drug transaction. Kirby, 208 Fed. Appx. at 696; Mackey, 265 F.3d at 462. 44
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The cases cited by the Government in support of its position on the in furtherance prong are inapt, as all three cases involve guns that were present in the same room as the criminal activity. Govt Brief at 59-60. In Mercer, the gun was in the same hotel room in which drugs were being packaged for sale. United States v. Mercer, 541 F.3d 1070, 1077 (11th Cir. 2008). Likewise, in Thompson, the guns were in the same room in which the drugs were being packaged for sale, and were readily accessible during the course of the criminal activity. United States v. Thompson, 473 F.3d 1137, 1143-44 (11th Cir. 2006). See also United States v. Molina, 443 F.3d 824, 829-30 (11th Cir. 2006) (gun in same room as criminal activity). Instead, this case is analogous to United States v. Nance, 40 Fed. Appx. 59 (6th Cir. 2002), in which the Sixth Circuit affirmed the district courts post-trial judgment of acquittal on a 924(c) conviction where firearms were found inside a vehicle, but the drugs and defendant were outside of that vehicle. In Nance, the defendant was arrested while standing in a parking lot near the trunk of his car with drugs and cash in his pocket. Id. at 61. Three guns, a flak jacket, and some ammunition were found in the car. Id. One of the guns was loaded in a shoe box within the drivers reach, and two others were found in the trunk, right next to where the defendant was standing. Id. The Sixth Circuit found that [w]ithout more, Nances possession 45
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merely constitutes the presence of a firearm in an area where a criminal act occurs, which the House Report indicated is not a sufficient basis for imposing this particular mandatory sentence. Id. The court went on to quote the House Report: Rather the government must illustrate through specific facts, which tie the defendant to the firearm, that the firearm was possessed to advance or promote the criminal activity. Id., quoting H.R. Rep. No. 105-344, 1997 WL 668339, at *12 (1997). Like in Nance, there are no specific facts that Macks firearm in any way advanced or promoted the criminal activity. The Government has proven nothing other than mere presence of a secured and inaccessible gun in a car, without any nexus to the drug activity. This is simply insufficient to sustain a conviction under 924(c). C. Judgment Of Acquittal On The Gun Count Is Required To Protect Myries Fifth Amendment Rights.
Even if the evidence presented at the second trial had been sufficient to sustain a conviction under 924(c), the district court properly granted judgment of acquittal because the gun count never should have survived the first trial. As Myrie argued below, during Myries first trial the Government constructively amended the indictment by abandoning its aiding and abetting theory in favor of a Pinkerton theory during the charge conference when it became clear that the Government had
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not introduced sufficient evidence to support the count as charged. DE198. Because the evidence was insufficient on the gun count at the original trial and because the government impermissibly constructively amended that indictment, it violated the Double Jeopardy Clause to retry Myrie.21 Pursuant to the Double Jeopardy
Clause,[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb, yet this is precisely what happened to Myrie. In the first indictment, which applied to Myries first trial, the Government charged Myrie with a 924(c) violation under an aiding and abetting theory: On or about December 10, 2009, in the Middle District of Florida, and elsewhere, the defendants, Mark Anthony Myrie, a/k/a Buju Banton, Ian Thomas, and James Jackson Mack, a/k/a Spencer Clarke, aiding and abetting each other did knowingly and intentionally posses a firearm in furtherance of, and carry a firearm during the course of a drug trafficking crime, as alleged in Count One, above. In violation of Title 18, United States code, Section 924(c) and Title 18, United States Code, Section 2.(Emphasis added). Initial Indictment, DE11, Count Two (emphasis added). In the Eleventh Circuit, to sustain a 924(c) conviction under an aiding and abetting theory, the government must prove that the defendant had knowledge of the gun and something linking the defendant to the gun, because section 924(c) does not permit guilt by association. United States v. Bazemore, 139 F.3d 947 (11th Cir. 1998) (citing The district courts decision to permit the Government to constructively amend the indictment is reviewed de novo. United States v. Forrest, 420 Fed. Appx. 949, at *1 (11th Cir. 2011). 47
21
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United States v. Thomas, 987 F.2d 697, 702 (11th Cir.1993)). See also United States v. Garcia-Barzaga, 361 Fed. Appx. 109 (11th Cir. 2010) (same). During the first trial, the Government did not come close to proving either of the required elements.22 Recognizing its dilemma, the Government in effect admitting that there was insufficient evidence on the aiding and abetting theory attempted to cure its problem by dropping the aiding and abetting language from the indictment at the close of the case and proceeding on a Pinkerton theory. Tr. September 23, 2010, Volume IV, at 8:1-8; 9:20-23. Myrie objected: Your Honor, there they didnt alleged the Pinkerton theory. They alleged that he aided and abetted the possession. They cant now, after theyve rested, change that theory to the court. Weve weve relied on the indictment in preparing the defense and in cross-examining witnesses and in arguing to the Court. Now what the Government is saying is, Well, we didnt prove what we said in the indictment, so wed like to go with a different theory. Thats not permissible, Your Honor. Id. at 9:4-13. See also id. at 8:12-18; 10:11-14.
As set forth above, there was no evidence Myrie knew that James Mack had a gun in his car. The undisputed facts that came out during the first trial (just like the second) established that Myrie had never even spoken to or met James Mack before being arrested in this case. As for the second element, there was nothing that linked Myrie to the gun. Even if guilt by association was permitted, Myrie never associated with Mack in any way. 48
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The district court agreed that the Government had not proved its aiding and abetting charge: Im going to rule that the Government hasnt shown that Mr. Mack aided and abetted; and so, I will grant your motion as to that . . . Id. at 10:15-21. See also id. at 8:19-24 (What I was inclined to do was submit it to the jury, let them get a verdict, and then I was probably going to take it away and rule in Mr. Myries favor on aiding and abetting, because I dont see a separate act facilitating a possession.). However, the district court allowed a shift from what the Government had charged in the indictment and what both parties had pursued throughout the trial, and instead instructed the jury under a Pinkerton theory. Id. at 10:21-25. The district court should not have allowed the Government to proceed in this fashion, as this constituted a constructive amendment of the indictment. The initial indictment clearly charged only aiding and abetting, and did not present a Pinkerton theory. This Court has determined that [c]riminal liability for aiding and abetting under 18 U.S.C. 2 is not the same as co-conspirator liability under Pinkerton. United States v. Gallo-Chamorro, 48 F.3d 502, 506-07 (11th Cir. 1995). As Myrie argued below, this Court does not permit constructively amending indictments after the close of the evidence. See United States v. Keller, 916 F.2d 628 (11th Cir. 1990) (holding that it is a fundamental principle stemming from the Fifth Amendment that a defendant only can be convicted for a crime charged in the 49
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indictment). Per se reversible error occurs when the essential elements of the offense are altered to broaden the possible bases for conviction beyond what is contained in the indictment. United States v. Dennis, 237 F.3d 1295 (11th Cir. 2001). A jury instruction that constructively amends a grand jury indictment constitutes per se reversible error because such an instruction violates a defendants constitutional right to be tried only on those charges presented in an indictment. Stirone v. United States, 361 U.S. 212 (1960); United States v. Narog, 372 F.3d 1243 (11th Cir. 2004). Accordingly, in the first trial, the government was required to prove the 924(c) count as it was charged in the indictment under an aiding and abetting theory. Because the Government failed to offer sufficient evidence to prove the gun count under an aiding and abetting theory, the district court should have granted Myries Rule 29 Motion (DE151) or its Renewed Motion For Judgment of Acquittal (DE186), both of which raised this issue.23 Government did not prove its case. The Government did not cure this error by returning a superceding indictment before the retrial charging Myrie with the same gun count, this time under a Pinkerton theory. Because a judgment of acquittal should have been entered on Count 2 at the Jeopardy had attached, and the
In the alternative, the district court should have granted Myries Motion to Dismiss Superceding Indictment (DE198) as to Count Three. 50
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original trial given the evidentiary insufficiency, it violated the Double Jeopardy Clause to retry Myrie on a new gun count based on the same set of facts. See Yeager v. United States, 557 U.S. 110 (2009); Burks v. United States, 437 U.S. 1, 11 (1978); United States v. Sanabria, 437 U.S. 54, 64 (1978); United States v. McKee, 506 F.3d 225, 232 (3d Cir. 2007) (finding that retrial would be permitted on counts dismissed due to constructive amendment only if the government had introduced sufficient evidence to sustain them, in order to avoid a violation of the double jeopardy clause). D. In The Alternative, Count Three Must Be Remanded To The District Court For Determination Of Whether A New Trial Should Be Granted.
If this Court reverses the judgment of acquittal on Count Three, it should either grant a new trial or remand to the district court for a determination of whether a new trial should be granted. Pursuant to Fed. R. Crim. P. 29(d)(1), in conjunction with its judgment of acquittal the district court was required to conditionally determine whether any motion for new trial should [have] been granted if the judgment of acquittal is later vacated or reversed, specifying the reasons for that determination. Myrie had moved for judgment of acquittal or a new trial, and the district courts order granted the judgment of acquittal without providing the requisite conditional ruling on Myries motion for new trial. DE318.
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In addition to the grounds set forth above in support of the district courts grant of a judgment of acquittal on Count Three, Myrie also should be granted a new trial because the district court erred in precluding Myrie from calling James Mack to testify. Because Mack had invoked his Fifth Amendment privilege, the district court did not permit Myrie to call him despite Myries assertion that the invocation of privilege was improper.24 2/17AM 50:1-25 (preserving objection made at Tr.1, Vol. III, 9/22/10, at 5-10). Neither was the defense permitted to introduce Macks sworn affidavit (which exculpated Myrie and attested to the fact that he had never spoken to, met, or heard of Myrie before) because the Court improperly excluded it on hearsay grounds. 2/17AM 50:1-25 (preserving objection made at Tr.1, Vol. III, 9/22/10, at 10-12). The affidavit should have been admitted under 804(b)(3) because Mack was unavailable (by virtue of his lawyer asserting that he would invoke the Fifth Amendment) and because the statements in the affidavit were statements against interest. See United States v. US Infrastructure, Inc., 576 F.3d 1195 (11th Cir. 2009).25
24
One reason that Macks invocation of the Fifth Amendment was improper was because Mack already had pleaded guilty to possession of the firearm, so any questions about whether he knew Myrie or whether Myrie knew about the firearm could not have exposed him to any further liability. Certainly Macks own lawyers believed that the statements were against interest, as they advised him to invoke his right against self-incrimination. 52
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Given these errors, along with the Governments failure to offer sufficient evidence to support a 924(c) conviction, it should grant a new trial or remand for the district court to consider granting a new trial if this Court reverses the district courts judgment of acquittal . See United States v. Miranda, 425 F.3d 953, 963 (11th Cir. 2005) (when a district court grants a motion for a judgment of acquittal, without complying with the mandatory provisions of Rule 29(d)(1), it has the authority, upon remand, after a reversal of a judgment of acquittal, to consider whether it should grant or deny a motion for a new trial.); United States v. Ward, 274 F.3d 1320, 1323-24 (11th Cir. 2001).
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CONCLUSION We respectfully request that Mark Myries convictions on Counts One and Four be reversed and remanded with instructions that the case is to be dismissed with prejudice, or in the alternative, that Myrie should receive a new trial. The District Courts dismissal of Count Three should be affirmed.
Respectfully submitted, /S/ DAVID OSCAR MARKUS DAVID OSCAR MARKUS MONA E. MARKUS A. MARGOT MOSS MARKUS & MARKUS, PLLC 40 N.W. Third Street, Penthouse 1 Miami, Florida 33128 Telephone No. (305) 379-6667 Facsimile No. (305) 379-6668 MARC DAVID SEITLES Fla. Bar No. 0178284 Law Offices of Marc David Seitles, P.A 40 N.W. Third Street, Penthouse 1 Miami, Florida 33128
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CERTIFICATE OF COMPLIANCE I CERTIFY that this brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7). According to the WordPerfect program on which it is written, the numbered pages of this brief contains 13,969 words, exclusive of certificates of counsel. /s/ David Oscar Markus David Oscar Markus CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing was served by U.S. mail this 9th day of March 2012, upon Linda J. McNamara, Deputy Chief, Appellant Division, Assistant United States Attorney, 400 North Tampa Street, Suite 3200, Tampa, Florida 33602.
/s/ David Oscar Markus David Oscar Markus
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Case: 11-13077

Date Filed: 03/09/2012

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