Kristen Smith Motion For Acquittal

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLANDUNITED STATES OF AMERICA *v. * Crim No. RWT-10-0069KRISTEN DEANNA SMITH **************MEMORANDUM IN SUPPORT OFMOTION FOR JUDGMENT OF ACQUITTAL

The Defendant, Kristen Smith, through her attorneys, James Wyda, Federal PublicDefender, Michael Citarmanis, Assistant Federal Public Defender, Susan M. Bauer, AssistantFederal Public Defender, and Patrick Kent, Assistant Federal Public Defender, hereby submitsthis memorandum in support of Ms. Smith’s motion for judgment of acquittal, pursuant to Rule29 of the Federal Rules of Criminal Procedure:MJOA is Appropriate Where The Government Fails to Present Evidence on anEssential Element of the OffenseIf, at the close of the government’s case, the proof is insufficient to sustain a conviction,the Court must enter a judgment of acquittal. F.R.C.P. 29(a). The motion for a judgment ofacquittal should be denied if “viewing the evidence in the light most favorable to thegovernment, any rational trier of facts could have found the defendant guilty beyond areasonable doubt.” United States v. Tresvant, 677 F.2d 1018, 1021 (4 Cir. 1982). In reviewingththe merits of a motion for judgment of acquittal, the Court should defer to the jury on issues ofwitness credibility. United States v. Romer, 148 F.3d 359, 364 (4 Cir. 1998)(overruled on otherthgrounds); United States v. Smith, 451 F.3d 209, 217 (4 Cir.), cert. denied, 127 S.Ct. 197 (2006);thand United States v. Lentz, 383 F.3d 191, 199 (4 Cir. 2004), cert. denied 544 U.S. 979 (2005). th

Case 8:10-cr-00069-RWT Document 50 Filed 09/22/10 Page 1 of 12

However, where the government fails to offer evidence on an essential element of the offense,the Court must direct a verdict in favor of the defendant. United States v. McKenzie, 266 F.2d524, 527 (10 Cir. 1959)(“If there is a failure to prove an essential element of the offense, thethdefendant is entitled to an acquittal.”); United States v. Ramming, 915 F.Supp. 854, 859 (S.D.Texas 1996)(“In order for the government to avoid a Rule 29 motion...there must be someevidence on each of the necessary elements sufficient for the Court to determine that a jury couldfind that the crime...occurred, beyond a reasonable doubt.”); United States v. Beck, 615 F.2d 441,448 (10 Cir. 1980)(judgment of acquittal “may be granted only when the relevant evidence isthinsufficient to prove all the elements of the charged offense.”).The Government Failed to Prove .08% or Higher at the Time of DrivingIn this case, the government failed to produce evidence that “[t]he alcohol concentrationin [Ms. Smith’s] blood...was .08 grams or more of alcohol per 100 milliliters of blood,” at thetime she was “operating or being in actual physical control of a motor vehicle,” as required to beproven by 36 C.F.R. §4.23. This regulation, which prohibits the operation of motor vehicles onlands within the jurisdiction of the National Park Service, while under the influence of alcohol ordrugs, sets forth two separate and distinct methods of prosecution. Section (a)(1) of theregulation requires the government to prove that the driver was under the influence of alcohol ordrugs “to a degree that renders the operator incapable of safe operation.” 36 C.F.R. §(a)(1). Section (a)(2), referred to as the per se offense, merely requires proof that the driver’s bloodalcohol content (BAC) exceeded .08% at the time of driving.The government chose to charge Ms. Smith with causing the death of Jabari Outtz,during the commission of “an unlawful act not amounting to a felony, that is, operating a motorvehicle while the alcohol concentration in her blood was 0.80 grams or more of alcohol per 1002


milliliters of blood.” By doing so, the government specifically alleges a violation of 36 C.F.R.§4.23(a)(2) - the per se violation - as the misdemeanor being committed at the time of thepassenger’s death, and not (a)(1), the impairment section. 36 C.F.R. §4.23(a)(2) is a “No Presumption” StatuteThe federal DUI regulation applicable to conduct within national parks is a nopresumption statute. In United States v. Stout, 2009 WL 5217047 (D.Nev.), U.S. MagistrateJudge Brower, of the District of Nevada, described the government’s evidentiary obligationsunder §4.23(a)(2) as follows:Unlike some state DUI laws, 36 C.F.R. §4.23(a)(2) does not makeit unlawful to have a blood alcohol level above the legal limitwithin a specified time after operating a motor vehicle. Nor does itcontain a presumption regarding the person’s blood alcohol levelat the time he was operating or in physical control of a vehiclebased on subsequently obtained breath or blood test results. Because there is no presumption based on the test results, theGovernment is required to prove that a defendant’s blood alcoholcontent was above the legal limit at the time of operating thevehicle and not merely at the time the breath or blood sample wastaken.Stout *6 (emphasis added).To satisfy the elements of the per se offense the government must submit expert evidencethat “relates back” the blood alcohol content. Federal courts applying § 4.23(a)(2) haverecognized the legal insufficiency of a blood test result that exceeds the legal limit, standingalone, to prove a violation of the federal per se drunk driving regulation. United States v. Wight,884 F.Supp. 400 (D.Colo. 1995) (in prosecution under § 4.23(a)(2) where breath test result of.151 was acquired two hours and twelve minutes after the accident, admitting evidence of thetest, but finding defendant not guilty because no expert testimony related the result back to theaccident); United States v. Nestor, 474 F.Supp.2d 174 (D.Me. 2007) (in prosecution under §4.23(a)(2) where breath test result of .10 was obtained fifty-two minutes after the defendant was3


driving, admitting evidence of the test, but finding defendant not guilty because no experttestimony related the result back to the accident); United States v. Rauhof, 2006 WL 3455066(W.D. Va.)(blood result of .12% from a test taken four and a half hours after the accident wasinsufficient to prove a violation of §4.23(a)(2) in the absence of evidence relating the test back tothe time of driving); United States v. French, 2010 WL 1633456 (D.Nev.)(breath tests taken oneand a half hours after traffic stop which revealed a BAC of .149% and .135% insufficient toprove a violation of §4.23(a)(2) “in the absence of qualified testimony by an expert relating theintoxilyzer test results back to the time of the stop...”); United States v. Ashurst, 1997 WL414578 (9 Cir)(alcohol test taken one and a half hours after accident is not “conclusive”thevidence of what the BAC was at the time of the accident). Indeed, some federal courts haverequired especially particular expert evidence. United States v. Stout, 2009 WL 5217047, *8-9(D.Nev. 2009) (in prosecution where breath test result of.178 was obtained less than fortyminutes after the defendant was driving, admitting evidence of the test, but finding the defendantnot guilty under §4.23(a)(2), even though an expert witness testified to the average rate ofalcohol dissipation, because the expert did not estimate the defendant’s BAC at the time of herdriving, and because the expert did not explain how “sex, weight, or consumption of food” mighthave effected defendant’s absorption of alcohol). §4.23(a)(2) Requires Expert Testimony Relating Test Result Back to Driving Conduct In United States v. Wight, supra, a federal ranger responded to an early morning accidentin the Rocky Mountain National Park. Wight at 401. Upon her arrival, the ranger discovered avehicle that had left the roadway, and the defendant, Wight, was in the driver’s seat. The rangersmelled alcohol on Wight’s breath, and noticed his eyes were bloodshot and his speech wasslow. Wight admitted he had been drinking alcohol the night before. After administering field4


sobriety tests, designed to detect alcohol impairment, the ranger concluded Wight wasintoxicated and transported him to the police station for a breath alcohol test. The results of thattest were .151%. Wight was found not guilty. In reaching its conclusion, the Court stated:[The prosecution] chose to proceed on the “per se” violation. By doingso, it had an obligation under the regulation to establish the alcoholconcentration at the time of driving or actual physical control. The testresult at 8:27 a.m. was insufficient, in and of itself, to establish whatDefendant’s concentration was at 6:15 a.m., or even 7:00 a.m. Once [theprosecution] chose to proceed on the “per se” violation, it had to presentqualified evidence that “related back” the test results to the time of drivingor actual physical control. No such qualified testimony was offered in thiscase. Wight at 403.Although the Court heard, and apparently credited, the testimony of the park ranger,indicating Wight was substantially impaired by alcohol, that evidence was qualitativelyinsufficient to prove the per se offense of §4.23(a)(2). Wight at 401. The Court noted that§4.23(a)(1) is a different offense from (a)(2), in that (a)(1) is a “traditional” DUI regulation thatrequires proof of driving under the influence of alcohol “to a degree that renders the operatorincapable of safe operation.” Id. The per se offense, on the other hand, does not require thegovernment to prove impairment, but requires “qualified” evidence to prove the BAC was abovethe legal limit at the time of driving. Acknowledging the complexity of relation back evidence,the Court found “[m]any variables may affect the result of a blood alcohol test including the typeof machine used in the test, the weight, sex and physical condition of the driver, any medicationthe driver might be taking, how much food is in the driver’s stomach at the time of the test...andhow long after the driving the test was administered.” Id. at 402. The Court recognized thescientific fact that at any given time, the BAC may be rising or falling. Consequently, althoughevidence was introduced that supported a finding of alcohol impairment, such as the odor of5


alcohol, bloodshot eyes, slow speech, admissions of alcohol consumption, and failure tosuccessfully complete field sobriety tests, without expert testimony relating the test results to thetime of driving, the government could not prove a violation of §4.23(a)(2).A similar conclusion was reached in United States v. Rauhof, supra, in which a blood testtaken four and a half hours following an accident, which revealed a BAC of .12%, wasinsufficient to prove that the defendant, Rauhof, had a BAC that exceeded .08% at the time hewas driving. Rauhof *2. Similar to the facts presented in this case, the federal officers wereunable to interview Rauhof at the scene of the accident, because by the time they had arrived,Rauhof was removed by medical personnel and transported to a hospital for treatment. Withoutany evidence relating the blood result back to the time of the accident, the Court was required tofind Rauhof not guilty of §4.23(a)(2). In also acquitting Rauhof of §4.23(a)(1), the impairmentsection, which requires evidence that the driver, due to alcohol impairment, is incapable of safelyoperating the motor vehicle, the Court discussed how the proof requirements of the two sectionsvary. Initially, the Court stated that “a showing of Rauhof’s BAC at the time of the accident isunnecessary to sustain a conviction” under (a)(1). Rauhof *3. In fact, the Court noted “[t]heregulation does not state that this showing of an incapability of safe operation must be shown bydiagnostic or laboratory testing such as a preliminary breath test or a blood alcohol content test.” A successful prosecution under (a)(1) “may rest upon evidence of the defendant’s behavior,including things such as erratic driving, slurred speech, bloodshot eyes, failure of field sobrietytests and the smell of alcohol about the defendant’s person, to name a few.” Id. By contrast, the(a)(2) per se offense may only be proven by a laboratory test. 1

§4.23(c)(4) states that “[a]ny test shall be conducted by using accepted scientific methods and equipment of1proven accuracy and reliability operated by personnel certified in its use.”6


Federal courts continue to reiterate the necessity of expert testimony to prove a violationof §4.23(a)(2). As recently as April of 2010, United States Magistrate Judge Watkins, of theDistrict of Nevada, held that “in the absence of qualified testimony by an expert relating theintoxilyzer test results back to the time of the stop, a defendant cannot be convicted for aviolation of 36 C.F.R. §(a)(2). United States v. French, supra, *4 (emphasis added). Finally, United States v. Stout, 2009 WL 5217047, *9 (D.Nev.), stresses that thejudgment, or common sense, of the fact finder cannot substitute for expert testimony on the issueof whether the blood alcohol level exceeded the legal limit at the time of driving. (“Althoughthe Court strongly suspects that Ms. Stout’s blood alcohol content was above 0.08 at the time shewas operating or in actual physical control of her vehicle, the Government has not met its burdenunder §4.23(a)(2) to specifically prove that Ms. Stout’s blood alcohol was 0.08 or above at thatearlier point in time.”). The defendant, Stout, was arrested by a federal ranger, who noticedStout’s vehicle enter a closed park area, and exhibit signs of erratic driving. Upon encounteringStout, the ranger observed evidence of alcohol impairment, including the strong odor of alcohol,watery, red and bloodshot eyes, slurred speech and fumbling to produce a driver’s license andregistration. Stout *1. Stout also failed several field sobriety tests. A breath test taken less than45 minutes after the traffic stop revealed a BAC of .182, a result more than double the legallimit. A “trained forensic analyst” provided expert testimony about standard rates of alcoholelimination, that “would...suggest that a person with a blood alcohol content of .178 and .182was above 0.80 35 to 40 minutes earlier.” Notwithstanding that testimony, the Court foundinsufficient evidence to prove the defendant exceeded the legal limit of .08%. The Court notedthe absence of specific expert testimony on the blood alcohol content at the time of driving,noting no factoring in of “the effect that Ms. Stout’s sex, weight, or consumption of food may7


have had on the absorption of alcohol into her system.” Stout *9. The Court found mereevidence of whether the BAC was rising or falling at the time of the test “inconclusive” as towhat the BAC was at the time of driving. Stout is particular significant to this case in thatexpert testimony was admitted at the trial, which provided general scientific evidence aboutabsorption and elimination rates. However, without an individualized assessment of adefendant’s personal characteristics and consumption of alcohol before driving, and in theabsence of any expert opinion as to what the BAC was at the time of driving, the Court wasunable to convict of the per se charge.The Court did find the high BAC, taken within a relatively short period of time after thedriving conduct, along with abundant evidence of impairment, was sufficient to find Ms. Stoutguilty of the (a)(1), driving under the influence, charge. Evidence of Impairment is Not Relevant to §4.23(a)(2)Evidence of impairment is relevant to the manslaughter charge in this case, as indicativeof whether there is a causal link between a misdemeanor amounting to “gross negligence,” andthe victim’s death. See United States v. Pardee, 368 F.2d. 368, 374 (4 Cir. 1966). However,thimpairment evidence is not relevant to the underlying per se DUI offense, which only requiresproof that at the time the accident occurred, Ms. Smith was operating her motor vehicle with aBAC that exceeded .08%. See Commonwealth v. Kemble, 605 A.2d 1240 (Pa.1992). Like thefederal statute at issue here, the Commonwealth of Pennsylvania adopted DUI regulations thatpermit the state to convict under either a per se theory or an impairment theory. Kemble at 1242(“Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater isunfit to drive, whereas subsection (a)(1) requires proof that the defendant was, in fact, incapableof safe driving because of an excessive consumption of alcohol.”). The Superior Court of8


Pennsylvania reversed Kemble’s conviction under the state per se offense, because the lowercourt erred in admitting evidence the defendant was impaired, which included driving error, lackof balance, odor of alcohol, and failure of field sobriety tests. In so holding, the Court reasonedthat a per se charge “involves a narrowly focused inquiry that is solely concerned with adetermination of whether a defendant had a .10% or greater blood alcohol level at the time thatshe drove her automobile.” Accordingly, “impairment evidence is not relevant since it does notlogically or reasonably tend to prove or disprove that a defendant’s blood alcohol level[exceeded the legal limit].” Id. at 1243.In this case, the act of “gross negligence” that underlies the involuntary manslaughtercharge is separately and distinctly defined by statute as having only two elements - operating orbeing in actual physical control of a motor vehicle, and having a BAC at the time of operationthat exceeds the legal limit. Whereas impairment evidence is relevant to a violation of§4.23(a)(1), the government chose not to charge Ms. Smith with causing the death of anotherwhile driving under the influence of alcohol, to the extent that she was incapable of safelyoperating her vehicle, but rather chose to proceed with the (a)(2) per se offense. Testimony andopinions of lay witnesses, or even police officers, as to Ms. Smith’s physical appearance orsobriety, cannot inform the jury or the Court as to a specific blood alcohol level, and cannotsubstitute for legally required expert testimony. ConclusionThe indictment in this case charges Ms. Smith with causing the death of Jabari Outtz,during the commission of a misdemeanor offense, specifically alleged as driving her vehiclewhile her BAC was higher than .08%. The government failed to present legally sufficient proofthat Ms. Smith’s BAC exceeded that legal limit. Evidence of impaired driving, while arguably9


relevant to the link between the commission of a grossly negligent act, and the death of another,is not evidence of a particular BAC at the time the accident occurred. As the cases describedherein make clear, evidence of BAC is scientific in nature and requires an expert analysis of themetabolic process of alcohol absorption and elimination, as well as consideration of personalcharacteristics of the accused, and a detailed history of alcohol consumption prior to the drivingconduct, from which the expert may relate the test results back to the time of the offense. In theabsence of that required expert testimony, the government fails to prove the underlyingmisdemeanor that is part of the involuntary manslaughter offense. The government presented evidence from Amber Howard that Ms. Smith smelled like“white liquor.” She also testified that Ms. Smith was hysterical and panicked, which sheattributed, several times in her testimony, to Ms. Smith having just been in serious accident,where her passenger had apparently died. Ms. Howard specifically stated that each time Ms.Smith looked back at the car or toward Mr. Outtz, she became much more emotional andirrational. Ms. Howard did not render any opinion as to whether Ms. Smith was intoxicated atthat time. No other witness testified as to Ms. Smith’s condition at, or near the time of theaccident.Mr. Lucas Zarwell, a government toxicologist testified in general terms about themetabolism of alcohol and the average rates of absorption and elimination. He alsoacknowledged on cross-examination that those absorption rates are highly variable and can beeffected by the following: weight, gender, history of alcohol consumption, timing of alcoholconsumption, food in the gastrointestinal tract, trauma, shock, medical conditions, and otherfactors. He also admitted that a person could consume a large amount of alcohol just beforedriving, and the alcohol level can continue to rise for up to several hours. He did not testify10


about the specific physical characteristics of the defendant, or of any personal knowledge of theamount and timing of alcohol she consumed prior to driving. Ultimately, he gave no opinion asto what the BAC was at the time the accident occurred in this case. The case may not proceed to a jury verdict, and “the motion for judgment of acquittalmust be granted when the evidence is so scant that the jury could only speculate as to thedefendant’s guilt.” United States v. Beck at 448. No witness testified in this case as to what theBAC was at the only time that is legally relevant - the time of the accident. Accordingly, theCourt must direct a verdict of acquittal in favor of Ms. Smith.Respectfully submitted,JAMES WYDAFederal Public Defender /s/ MICHAEL T. CITARAMANIS ___________/s/____________________SUSAN M. BAUER

___________/s/_____________________PATRICK E. KENT Assistant Federal Public DefendersOffice of the Federal Public Defender6411 Ivy Lane - Suite 710Greenbelt, Maryland 20770 Telephone: (301) 344-0600Facsimile: (301) 344-0019

11


CERTIFICATE OF SERVICE I hereby certify that on this the 22 day of September, 2010, a copy of the foregoing ndMemorandum In Support Of Motion For Judgment Of Acquittal was hand-delivered to HollisWeisman, Esq., Assistant United States Attorney, 400 United States Courthouse, 6500 Cherrywood Lane, Greenbelt, Maryland, 20770.

_____________/s/________________________Susan M. Bauer, Esq.Assistant Federal Public Defender


Documents

Kristen Smith Motion For Acquittal