Case No. 03-16001-H
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
UNITED STATES,
Appellee,
v.
GREGORY WADE HEMBREE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Florida
INITIAL BRIEF OF
APPELLANT GREGORY WADE HEMBREE
John S. Mills William Mallory Kent
Mills & Carlin, P.A. Law Office of William Mallory Kent
Florida Bar No. 0107719 Florida Bar No. 0260738
865 May Street 24 N. Market Street, Suite 300
Jacksonville, Florida 32204 Jacksonville, Florida 32202
(904) 350-0075 (904) 355-1890
Facsimile (904) 350-0086 Facsimile (904) 355-0602
Attorneys for Appellant Gregory Wade Hembree
Statement Regarding Oral Argument
The Defendant desires oral argument. Oral argument should be granted because this appeal is non-frivolous, the dispositive issues have not been authoritatively decided, and the decisional process would be significantly aided by oral argument. Many of the Defendant’s arguments were not adequately developed in the record below and are raised here under the plain error standard. Indeed, a review of the record demonstrates that the Defendant’s trial counsel did not understand the factual and legal defenses supported by the Defendant’s own testimony. Accordingly, a dialog with the Court should be helpful in sorting through these issues.
Statement Regarding Oral Argument i
Table of Contents ii
Table of Citations vi
Statement of Jurisdiction x
Statement of the Issues 1
Statement of the Case 2
Pretrial Proceedings 2
The Opening Statements and the Defense of Withdrawal 6
The Trial Testimony 8
Nodie Lake 9
Greg Lake 11
Kelli Flowers 13
Nickolaos Malamos,
M.D. 15
DEA Agent Michael Moon 16
The Defendant 17
The Government’s Closing Argument 22
The Jury Instructions and Verdict Form 23
The Jury’s Question and Verdict 26
Failure to Appear and Sentencing 26
Standard of Review 29
Summary of the Argument 29
Argument and Citations of Authority 33
I. The
Conspiracy Conviction Should Be Vacated Due to a Series of Unpreserved Errors
that Individually and Collectively Rise to the Level of Plain Error. 34
A. The
Government and Court Constructively Amended the Indictment to Charge a
Conspiracy for Simple Possession. 36
B. When
the Jury Asked Its Question, the District Court Should Have Explained That the
Statute of Limitations Barred Conviction Based Solely on the Defendant’s
Admitted Conduct in 1996. 41
C. The
District Court Should Not Have Allowed Ms. Flowers to Testify About What the
Defendant, Who Was Her Husband, Told Her. 43
D. The
District Court Should Not Have Allowed Evidence of the Defendant’s Drug Use. 44
E. The
District Court Should Have Enforced Its Order Requiring a Bill of Particulars. 45
F. The
District Court Should Have Given a Tillery
Instruction Regarding Uncorroborated/Contradictory Testimony of Accomplices. 46
II. The
Perjury and Drug Conspiracy Convictions Should Be Vacated Due to a Series of
Unpreserved Errors Regarding the Perjury Count. 48
A. The
Perjury Count Should Have Been Severed From the Drug Conspiracy Count. 48
B. Both
Convictions Should Be Vacated Because the Trial Court Plainly Erred in
Submitting the Materiality Element to the Jury on Counsel’s Stipulation and
Without an Instruction Requiring Unanimity. 51
III.