United States v. Simmons

1

UNITED STATES OF AMERICA, v. KENNETH SIMMONS RONALD ALFRED JAMES ALFRED FRANKLIN SEEGERS DEON OLIVER Defendants.

No. 1:00-cr-157-RCL

United States District Court, District of Columbia

November 22, 2022

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

Nearly twenty years ago, this Court presided over a lengthy trial involving Kenneth Simmons, Ronald Alfred, James Alfred Franklin Seegers, and Deon Oliver, among others, who were indicted for a massive drug conspiracy centered in Washington, D.C. A jury convicted them of a variety of crimes, including conspiracy to distribute and possess with intent to distribute a controlled substance. In finding the defendants guilty on the drug conspiracy count, the jury concluded that certain drug quantities were attributable to each defendant, which in turn impacted the applicable sentences. On appeal, the D.C. Circuit concluded that the admission of certain evidence-specifically several Drug Enforcement Administration (“DEA”) drug analysis reports, a summary chart derived from the reports, alongside testimony by a supervisory chemist (collectively the “DEA-7 evidence”)-violated the Confrontation Clause of the U.S. Constitution. United States v McGill, 815 F.3d 846, 890-92 (D.C. Cir. 2016) (per curiam). And because the DEA-7 evidence could have been used by the jury to help identify the drug quantity attributable to each defendant, the Circuit remanded to this Court for a determination of whether “there is a reasonable probability that, but for the improperly admitted evidence the jury's quantity findings would have been different.” Id. at 892. In other words, that it “affected the outcome of the district court proceedings.” Id. at 890 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

After review of the defendants' briefing, the government's response, the applicable law, and the trial record, this Court concludes that no defendant has met his burden to demonstrate such a reasonable probability.

I. BACKGROUND

The Court will focus narrowly on the background and procedural history relevant to the remand. All of the defendants here were indicted and later convicted of counts arising out of “a large-scale and violent narcotics-distribution business centered in Washington, D.C.” Id. at 861. Due to the difficulties with trying all related defendants in a single trial, the charged conspirators were split into two groups and tried separately. The first group was tried first in a yearlong trial and those defendants were part of a separate appeal. United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011), aff'd in part sub nom. Smith v. United States, 568 U.S. 106 (2013). That group included both Kevin Gray and Rodney Moore, who led the criminal enterprise. McGill, 815 F.3d at 861. The present appeal includes only defendants from the second group, who were tried together over the course of six months, with dozens of government witnesses, including many cooperating former coconspirators. See id. at 861-63; Gov't Opp'n 8, ECF No. 2830.

The D.C. Circuit largely affirmed the defendants' convictions on appeal. McGill, 815 F.3d at 861-62, 947. However, it reversed and remanded to this Court based in part on the improper admission of the DEA-7 evidence.^[1]Id. at 890-92, 947. The improperly admitted chart, summarizing the improperly admitted evidence, is reproduced below.

(Image Omitted) See ECF No. 2804-1. The Circuit concluded that the DEA-7 evidence was improperly admitted because the government was required to call an authoring chemist in order to admit the reports and chart, rather than a supervisory one. McGill, 815 F.3d at 890-92. However, because the defendants did not make this objection at trial, the D.C. Circuit reviewed the issues under the plain-error standard. Id. at 890-92, 947.

Applying the plain-error standard, the Circuit almost entirely rejected the defendants' application to vacate their substantive convictions due to the Confrontation Clause violation.^[2]The defendants had argued that “apart from the improperly admitted drug report evidence, ‘there was no tangible proof, other than testimony by highly impeached cooperating witnesses, as to the nature and scope of the conspiracies at all.'” Id. at 891 (citation omitted). But the Circuit did not accept that argument, reasoning that “the jurors could not have believed that appellants were going through the elaborate transactions and precautions described, and exchanged the funds described, for any reason other than conspiracy to distribute and possess narcotics” and that therefore, the “[defendants] ha[d] not carried th[eir] burden as to any elements except (possibly) drug quantity.” Id. at 892. The Circuit further stated, in rejecting the effect of any cumulative errors, that “[t]he government mounted a strong case based on overwhelming evidence.” Id. at 947.

The Circuit's reference to “drug quantity” refers to the findings that were part of the jury's verdict on the drug conspiracy charge for each defendant. Id. at 892. When a defendant is charged with conspiring to distribute and possess with intent to distribute a controlled substance, the jury must make specific findings as to the quantity of drugs attributable to each defendant. See id. That quantity then determines the applicable sentencing range.^[3]Id.

To illustrate the jury's role in determining the applicable drug quantity amount, consider the verdict form for defendant Ronald Alfred on the issue of powder cocaine. The jury had to make the following determination:

Cocaine

(A) 5 kilograms or more of mixtures and substances containing a detectable amount of cocaine.

Proven _√_ Not Proven __

If you are unable to find unanimously that the quantity of cocaine was 5 kilograms or more, then you should consider whether the drug quantity was:

(B) 500 grams or more but less than 5 kilograms of mixtures and substances containing a detectable amount of cocaine.

Proven __ Not Proven __

ECF No. 1880 at 2. That finding represents the jury's determination of the amount of powder cocaine individually attributable to Ronald Alfred based on the evidence presented at trial.

The Circuit concluded that the improperly admitted DEA-7 evidence might have affected the jury's findings for the drug quantity attributable to each defendant. McGill, 815 F.3d at 892. The panel therefore remanded to this Court to evaluate the issue and “depending on which counts or quantity findings (if any) are vacated with respect to each appellant . . . determine in the first instance whether resentencing is appropriate.” Id. In so doing, the Circuit explained that “[o]n remand the burden will be on [defendants] to show, perhaps through additional briefing, that there is a reasonable probability that, but for the improperly admitted evidence, the jury's quantity findings would have been different.” Id.

The defendants subsequently filed memoranda, motions, and briefs on remand. James Alfred and Deon Oliver filed briefs on remand arguing that the jury's drug quantity findings as to them would have been different without the DEA-7 evidence. Def. James Alfred Br., ECF No. 2796; Def. Deon Oliver Br., ECF No. 2804. Franklin Seegers filed a memorandum in support of his resentencing. Def. Franklin Seegers Mem., ECF No. 2799. Ronald Alfred filed a brief on remand and moved for resentencing. Def. Ronald Alfred Mot., ECF No. 2826. Kenneth Simmons moved to dismiss several of the substantive counts of conviction. Def. Kenneth Simmons Mot., ECF No. 2822.

The United States then filed an omnibus response to the defendants' various filings. Gov't Opp'n. James Alfred and Dean Oliver replied. Def. James Alfred Reply, ECF No. 2832; Def. Deon Oliver Reply, ECF No. 2834.

II. LEGAL STANDARD

The plain-error standard applies when a defendant fails to object at the district court level and then seeks to bring that objection at the appellate level. McGill, 815 F.3d at 877. There (1) must be a legal error, (2) that legal error must be clear, and (3) that error must violate “substantial rights.” Id. (quoting United States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir. 2007)).

The D.C. Circuit reviewed the defendants' objections to the admission of the DEA-7 evidence under the plain-error standard. Id. at 890-92. The Circuit resolved the first two prongs and concluded that there was a clear legal error. See id. The Circuit then instructed this Court to resolve the “substantial rights” prong and specifically that “[o]n remand the burden will be on appellants to show . . . that there is a reasonable probability that, but for the improperly admitted evidence, the jury's quantity findings would have been different.” Id. at 892. Therefore, with the burden squarely on the defendants, this Court will “determine whether [defendants] can demonstrate that the improperly admitted drug report evidence affected the jury's drug quantity findings.” See id.

III. DISCUSSION

This Court concludes that the defendants have not demonstrated that the DEA-7 evidence violated their substantial rights for two reasons. First, the Court concludes that there is no reasonable probability that the jury would have made different quantity findings because, if faced with a proper ruling, the government would have simply introduced the DEA-7 evidence using the authoring chemists. Second, even setting that conclusion aside, no defendant has demonstrated a reasonable probability that the admission of the DEA-7 evidence affected the jury's individualized determination as to the drug quantity attributable to him.

A. No Defendant Can Demonstrate That His Substantial Rights Were Violated Because the Government Would Have Simply Had the Authoring Chemists Testify

The introduction of the DEA-7 evidence could not have violated the...