Criminal

1.    Whether the prosecutor corrupted the trial process in violation of Appellant’s Fifth and Sixth Amendment rights by usurping the grand jury’s subpoena power to compel attendance in his of¬fice for interviews, paying witness fees to individuals who did not testify in the grand jury, and coercing witnesses to testify falsely at trial, and whether he knew or should have known that at least one of those witness testified falsely as a result of his actions?
2.    Whether the prosecutor violated his responsibilities under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1964), by withholding from the defense upon request excul¬patory information concerning one witness who gave conflicting accounts of events on the night of the homicide and repeatedly asserted that he was too drunk to recall what happened, and other witnesses who would have testified that another key government witness against Appellant had left the scene before the homicide for which he was convicted occurred?

Bonilla v. United States, No. 98-CF-212, 06-CO-1164 -- In first-degree murder case prosecutor used grand jury subpoenaes to require potential witnesses to appear in his office repeatedlyfor interviews, attempted to coerce them to provide information supporting the government's theory of the case He only took before the grand jury those who eventually changed their accounts to conform to the government's theory. Although several of those witnesses gave statements which were exculpatory and others impeached government witnesses, the prosecutor withheld them until witnesses testified at trial, preventing defense counsel from investigating and calling witnesses. In the middle of trial the Judge allowed a government witness to testify about a codefendant's admission that he and another defendant argued over who would use a knife in the fatal attack. Although the statement did not directly implicate Bonilla, the argument occurred in the back seat of Bonilla's car. The argument was inadmissible against Bonila, but it was the only evidence that he knew his passengers were armed.

1. Whether the Trial Court violated the Double Jeopardy Clause of the Fifth Amendment where the indictment included 17 multiplicitous substantive counts and three multiplicitous conspiracies embedded within a RICO conspiracy and the Judge did not require the government to elect between prosecuting Appellant Abdur R. Mahdi under 18 U.S.C. §§1959 and 924(c) or nearly identical D.C. Code provisions, or, at a minimum, failed to identify the D.C. Code violations on the verdict form as lesser-included offenses to be considered by the jury only if it acquitted Appellant of the greater crimes or failed to reach verdicts on the greater charges despite their best efforts?

2. Whether the Trial Court violated Appellant’s Sixth Amendment right to confront witnesses against him by refusing to order the government to identify numerous bad acts and uncharged crimes it either intended to elicit from cooperating codefendants or that might come out in cross-examination of government witnesses, effectively preventing defense counsel from aggressively cross-examining those witnesses because counsel never had the opportunity to investigate or prepare to rebut the witnesses’ allegations?

United States v. Mahdi, No. 03-3154, briefs filed (D.C. Cir.) -- Appellant and 15 codefendants indicted for conspiracy to distribute narcotics, RICO conspiracy, numerous counts of distribution and possession with intent to distribute narcotics, several D.C. Code counts of assault with intent to commit murder while armed and related firearms charges, first-degree premeditated murder while armed and related firearms charges, several counts under 18 U.S.C. 1959(a) of committing violent crimes in aid of racketeering, and related firearms violations under 18 U.S.C. 924(c). Appellant, the only defendant who went to trial, was convicted on 48 of 49 counts. Appeal argues that the indictment charging both D.C. Code violent crimes and federal VICAR crimes was multiplicitous, that Appellant was deprived of his right to confront witnesses against him and to present a defense, that 18 U.S.C. 1959 is facially unconstitutional, and that his sentence for the D.C. violent crimes and the VICAR crimes violated the Double Jeopardy Clause.

United States v. Gongora-Parraga, No. 06-3133, aff'd (D.C. Cir. May 30, 2006 -- Appellants, Ecuadorian seamen, were seized aboard Ecuadorian ship in international waters 250 miles west of Guatamala by U.S Coast Guard and escorted to Mexico. Mexico expatriated them to the United States to be tried for smuggling aliens who intended to land in Central America and travel over land to this country. Court ruled that despite U.S. adoption of the Treaty on the Law of the High Seas, federal immigration statutes apply extraterritorially in international waters, even when the alleged smugglers never entered or intended to enter U.S. territorial waters.

1. Whether the Trial Court abused its discretion by permitting the Government, in its case-in-chief, to introduce evidence it had failed to disclose to Defense Counsel in violation of Fed. R. Crim. P. 16, and only made available to the defense mid-trial, after Counsel had committed himself to a litigation strategy the undisclosed documents were intended to defeat.
2. Whether the mandatory-minimum sentencing structure embodied in 21 U.S.C. § 841(b)(1) violates the Equal Protection Clause of the Fifth Amendment because Congress lacked a rational basis for imposing sentences on individuals convicted of selling crack cocaine that are 100 times as severe as sentences imposed on those convicted of selling powder cocaine, in the absence of evidence demonstrating that the former is a more dangerous form of the same drug?

1. Whether, after formal charges were filed and Appellant asserted his Sixth Amendment right to counsel, police violated that right by reinitiating interrogation several times over a 12-hour period without counsel present, and eventually obtained a written confession which was placed in evidence at trial?
2. Whether the Trial Court violated Appellant’s Fifth Amendment privilege against selfincrimination by admitting into evidence at trial a confession obtained in lengthy custodial interrogation, where police coerced Appellant to waive his right to counsel and right to remain silent?

1. Whether the Trial Court lacked jurisdiction to try Appellant as an adult because the counts in the indictment charging assault with intent to murder while armed were defective in that they failed to inform Appellant of the nature of the charges against him, and did not demonstrate that the Grand Jury found essential elements of the offense —malicious intent to kill and the absence of justification, excuse or mitigation, and therefore his conviction must be vacated?
2. Whether Appellant’s conviction for aggravated assault while armed on David Rodriguez must be vacated because the government failed to produce any evidence that he suffered serious bodily injury as a result of the stab wounds he sustained?
3. Whether, in the absence of evidence that Appellant had any direct contact with Omar Gonzales, Appellant’s conviction for assault with a dangerous weapon on Gonzales must be vacated because the government failed to produce evidence that Appellant aided and abetted the assault?

1. Whether police had probable cause to arrest Appellant, or even articulable suspicion to stop him, when they seized him and began searching for evidence of a crime, in light of the fact that they had observed only a one-way exchange of currency and saw nothing prior to the seizure tending to indicate that he possessed either narcotics or a weapon?
2. Whether Mr. Upshur was entitled to a jury trial because the crime of possession of crack cocaine is not a “petty” crime and, even if he was not entitled to a jury trial, whether the Trial Court’s actions in the evidence suppression hearing: demonstrating favoritism toward the prosecution, assuming facts favorable to the Government that were not in evidence, refusing to consider evidence contradictory to testimony of the sole government witness, and noting the superior credibility of that witness prior to trial, denied Appellant a fair trial by an impartial adjudicator in violation of the Sixth Amendment and the Due Process Clause of the Fifth Amendment?