U.S. v. Oruche

484 F.3d 590

UNITED STATES of America, Appellant v. Sorenson O. ORUCHE, Appellee.

No. 06-3100.

United States Court of Appeals, District of Columbia Circuit.

Argued February 22, 2007.

Decided May 4, 2007.

Appeal from the United States District Court for the District of Columbia (No. 01cr00287-01).

Florence Y. Pan, Assistant U.S. Attorney, argued the cause for appellant. With her on the briefs were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Kenneth F. Whitted, and T. Anthony Quinn, Assistant U.S. Attorneys.

Michael V. O'Shaughnessy argued the cause for appellee. With him on the brief was Mary C. Kennedy.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

The government charged appellee Sorenson O. Oruche with one count of conspiracy to possess (with intent to distribute) and to distribute heroin, see 21 U.S.C. § 846; four counts of heroin distribution, see id. § 841; and four counts of interstate travel in aid of racketeering ("ITAR"), see 18 U.S.C. § 1952. The jury convicted Oruche on the conspiracy count, on three of the heroin-distribution counts, and on one of the ITAR counts. The jury failed to reach a verdict as to the remaining counts. Subsequently, the district court granted Oruche's motion for a new trial as to all his convictions, finding Brady violations, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (Brady), and violations of the Jencks Act, see 18 U.S.C. § 3500. The government brought this appeal pursuant to 18 U.S.C. § 3731, which authorizes appeal from an order granting a new trial in a criminal case. We conclude the district court erred and reverse the new trial order, remanding for further proceedings.

I

In summarizing the trial evidence, we focus on the counts that resulted in convictions. Count one, the conspiracy count, was based primarily on evidence offered in support of the other counts. In support of count two (ITAR), Tequila Williams and Alvin Ogar testified about a trip they took with Oruche on September 17, 2000, from Washington, D.C. to New York City. Williams drove Oruche's rented Jaguar to an apartment where Oruche obtained a baseball-sized package of heroin. He called Williams into the bedroom and directed her to put the heroin in her purse. Williams did so. Meanwhile, Ogar waited in the living room. Oruche, Williams, and Ogar spent about twenty minutes at the apartment and then drove back to D.C., leaving around 11:00 p.m. On the way back, Oruche told Williams he would "take the beef" if they got pulled over by police. They arrived in the District early in the morning on September 18, 2000, and Oruche drove to several locations, trying to arrange a meeting with someone named "Aaron." After Oruche met with Aaron, he told Williams and Ogar that Aaron would have killed him if they had not been present.

Count three was a heroin distribution count. Williams and undercover police officer Robert Arrington testified about this transaction. Officer Arrington arranged to buy an ounce of heroin from Williams. On September 21, 2000, Arrington met Williams in a parking lot and negotiated a price for the heroin. Williams said she was "waiting for her man" and would be able to complete the transaction at 3:00 p.m. the same day at a strip club in the District where Williams worked as a bartender. Williams left the parking lot and called Oruche, who told her he was on his way. Officer Arrington arrived at the club at 2:45 p.m. and met with Williams who told him to wait in his car. A short time later, Oruche arrived in a Jaguar, went inside the club, and gave Williams the heroin. Williams walked out of the club, got into Officer Arrington's car, and sold him 24.1 grams of heroin for $4,000. Oruche left the club, and Williams later went to his hotel and gave him the money from the sale. As corroborating evidence, the prosecution presented audio and video recordings of Arrington conversing with Williams. In addition, video recordings showed Oruche entering the club at 3:09 p.m., Williams coming out at 3:18 p.m. to meet with Arrington, Oruche coming out at 3:22 p.m. and driving away, and Williams driving away at 3:26 p.m. Evidence of cell-phone usage also confirmed several calls between Williams and Oruche on the day of the transaction, including calls at 12:05 p.m., 12:08 p.m., 12:35 p.m., 2:11 p.m., 2:17 p.m., 2:53 p.m., 3:28 p.m., and 3:45 p.m.

Count five was another heroin distribution count. David Marley, a paid government informant with a significant criminal record, and Special Agent Mark Ross from the Drug Enforcement Administration (DEA) both testified. Marley became associated with Oruche; Oruche trusted him because they were both African. In May 2001, Oruche solicited Marley to sell heroin for him. Oruche said he did not want to deal in amounts less than one hundred grams, which he would sell for $11,000. Marley contacted Special Agent Ross, and he and Ross began setting up heroin purchases. On June 12, 2001, Marley met Oruche in Oruche's vehicle, while Ross watched from a distance. Oruche gave Marley 176 grams of heroin and told Marley he wanted $16,000 in return. After Oruche left, Ross picked up Marley and took the heroin. Three days later, Marley went to Oruche's apartment and gave him $6,000 in pre-recorded DEA funds, as a partial payment toward the $16,000 purchase price. During this visit, Marley saw five one-hundred-gram "balls" of heroin lying on Oruche's bed. On June 26, 2001 and July 3, 2001, Special Agent Ross met directly with Oruche, paying him first $6,000 and then $4,000 in pre-recorded DEA funds, thereby satisfying the $16,000 debt owing from the June 12th transaction. As corroborating evidence in relation to this count, the prosecution presented tape recordings of conversations between Marley and Oruche.

Count nine was a third heroin distribution count. Marley and Special Agent Ross testified. On July 16, 2001, Marley went to Oruche's apartment and received a portion of a sweater into which "straws" containing a significant amount of heroin had been interwoven with the sweater yarn. Oruche asked Marley to extract the heroin from the sweater. Marley took the sweater and gave it to DEA officials who later determined it contained 212.9 grams of heroin (about half a pound). Marley and Oruche also discussed the removal of the heroin over the telephone, and this telephone call was recorded. Later the same day, Special Agent Ross called Oruche, and in a three-way telephone conversation between Ross, Oruche, and Marley Ross told Oruche he wanted to buy two-hundred grams of heroin. Oruche agreed to make the sale. That evening, law-enforcement agents arrested Oruche at a rental car office near Union Station.

As noted, these counts resulted in convictions. On August 22, 2003, about a year after the convictions, the district court conducted a "Kastigar hearing" to determine whether the government had derived any of its evidence from an allegedly involuntary police interview with Oruche. Cf. Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (government has burden of proving its evidence is not derived from testimony as to which the defendant had received Fifth Amendment immunity). At this hearing, held before a different judge than the judge who presided at Oruche's trial, prosecutors and law-enforcement officials testified about a "debriefing" session held with Tequila Williams shortly after her arrest on December 6, 2000. Detective Barbara Lyles identified a page of handwritten notes she had recorded during the debriefing session, along with a second page on which she had rewritten and expanded the notes written on the first page. (She claimed to be "almost positive" she rewrote the notes the same day as the debriefing.) The word "Tungy" (a name) appears on the first page of notes. Directly under the word "Tungy" is the word "coke." To the left of the word "Tungy"—in the margin and not clearly associated with the word "Tungy"—is the word "Heroin." Touching the "T" of the word "Tungy" is an ambiguous stroke of the pen, shaped like two sides of a triangle. Oruche argues this stroke of the pen is an arrow pointing from the word "Heroin" to the word "Tungy." The page also includes a few notations in Tequila Williams's handwriting. Specifically, Williams wrote three telephone numbers and also the words "O" and "Girlfriend (Leslie)" on Detective Lyles's notes. The prosecution provided these notes to the defense only a few days before the Kastigar hearing.

On December 2, 2003, the defense filed a motion for a new trial based on Brady and the Jencks Act, asserting Williams's cross-examination could have been much more effective if the defense had known about Williams's possible second source for heroin. This argument gained additional support from an irregularity in Detective Lyles's testimony at the Kastigar hearing. Lyles first testified Tungy was in fact a heroin dealer, and Oruche and Tungy "had a shop off of Upshur Street." When asked whether Tungy sold heroin, Lyles answered: "With `O,' yes, sir." Six months later, Lyles changed her testimony, submitting a sworn affidavit to the court, explaining Tungy was a cocaine dealer, not a heroin dealer, and claiming she had testified incorrectly in this regard because she was mistaken. Detective Lyles also testified about this mistake in hearings held before the judge who presided at Oruche's trial.

The Brady /Jencks Act motion remained unresolved on December 14, 2004, when the government informed the district court it had discovered additional impeachment evidence regarding Tequila Williams. Specifically, the government eventually produced a transcript of testimony Williams gave to a grand jury concerning a former boyfriend's possible involvement in a murder. In this testimony, Williams implicated the boyfriend in the murder and admitted she had previously lied to police...