Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA §

§
§
VS. § CAUSE NO. 3:07-CR-289-M
§
§
D’ANGELO LEE et. al., (2) §

DEFENDANT LEE’S RESPONSE TO GOVERNMENT’S MOTION IN LIMINE AND

BRIEF IN SUPPORT OF RESPONSE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, D’ANGELO LEE, Defendant in the above-referenced case, and files his

Response to Government’s Motion in Limine and Brief in Support of Response. Defendant

requests that the Court suspend the Government’s Motion in Limine, and shows unto the Court

as follows:

I.

FACTUAL BACKGROUND

On June 29, 2009, after the Government’s opening statement, the Government made an

oral Motion in Limine, requesting that Defense Counsel be prohibited from mentioning anything

about Government informant Bill Fisher’s prior criminal conviction and reversal or his civil

lawsuit against the FBI. After an objection from defense counsel, the Court granted the

government’s Motion in Limine, ruling that the defense was prohibited from disclosing to the

jury any indication that Fisher had been previously investigated charged and convicted of bank

fraud in an FBI investigation. The defense was also prohibited from disclosing that because of

this conviction Fisher spent a year in Federal prison based on that conviction. Additionally, the

defense was prohibited from disclosing or mentioning that Fisher’s prior conviction had been
 Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 2 of 7

reversed by the 5th Circuit Court of Appeals after Fisher spent a year in prison. One of the

reasons for reversal was because of the governments failure to disclose “Brady” material to the

defense. The defense was also barred from mentioning that after reversal of Fisher’s conviction

for the government failing to disclosing the “Brady” material, Fisher was acquitted of those very

same charges by another jury. After his acquittal, Fisher filed a civil lawsuit against the FBI as

an entity, the government prosecutors who handled his initial case, and against the FBI agents in

their individual capacity as well as other government representatives. He alleged that the above

defendant’s engaged in a conspiracy to deprive him and his co-defendant John Carney of their

individual rights, by among other things, coercing cooperating witnesses into making false

representations and false statements to a jury; withholding exculpatory evidence from the

defense and by suborning perjured testimony. This evidence was also prohibited as irrelevant

under Federal Rules of Evidence 403.

Subsequently, Counsel for Defendant Lee put on the record that it was part of Defendant

Lee’s theory of defense that Fisher had ulterior motives for becoming an informant for the

Government. It is the defendant’s position that Fisher was keenly aware that because of his prior

experience involving the FBI, he was aware that an FBI investigation would effectively shut

down his competition and potentially remove from office public officials who stood in his way.

Additionally, Fisher knew from past experience that he did not want to be the target of another

FBI investigation. He was aware that if he could divert the attention of the FBI towards someone

else and become an informant he would keep the focus off of himself.

Based on the above, evidence of Fisher’s prior FBI involvement and his subsequent

lawsuit filed against the FBI would inform the jury of Fisher’s motives. The Court ruled that the

Government’s Motion in Limine would remain in effect.

 Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 3 of 7

II.

ARGUMENTS AND AUTHORITIES

A. DEFENDANT LEE’S THEORY OF DEFENSE

In his defense, Defendant Lee’s contention is that Bill Fisher misrepresented facts to the

FBI, which prompted the opening of a criminal investigation that led to an indictment of the

Defendants in this case. During cross examination of FBI Special Agent Allen Wilson by Mr.

Greene, Special Agent Wilson testified that the FBI must have proper predicate in order to open

an investigation. The defense sought to establish that the FBI did not have a proper predicate to

open this investigation because it used unverified evidence based on statements from Bill Fisher,

who sued the FBI for coercion of plea agreements from innocent co-defendants and

manipulation of evidence. These allegations are essentially the same allegations involved in

Defendant Lee’s theory of defense.

Furthermore, Fisher became an informant shortly after a Dallas Morning News article

was published accusing Fisher of possible unethical acts at Dallas City Hall. Thus, Fisher had

additional motive to fabricate evidence against the Defendants in this case so that he would no

longer be a target of investigation by the FBI. Lee’s lawyer was prohibited from pursuing a line

of questioning involving Special Agent Wilson’s knowledge of Fisher’s prior conviction and

civil lawsuit against the FBI which was meant to show that the FBI did not thoroughly

investigate Fisher’s ulterior motives for allowing to becoming an informant.

B. RELEVANCE OF FISHER’S PRIOR CONVICTION AND

LAWSUIT AGAINST THE FBI

Cross-examination into any motivations or incentives a witness may have for falsifying

his testimony are always relevant lines of inquiry. U.S. v. Hall, 653 F.2d 1002, 1008 (5th Cir.

1981). In Hall, the defendant was convicted of conspiring to distribute cocaine. Id. at 1004. On
 Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 4 of 7

appeal, the defendant argued that the trial court unduly restricted the scope of his cross-

examination of the key witnesses against him. Id. The government’s case at trial rested

primarily upon the testimony of the defendant’s alleged coconspirators, all whom testified based

on plea bargaining agreements with the government. Id. at 1004-1005. The defendant’s theory

of defense was that the three (3) government witnesses manipulated and misrepresented facts to

the government in order to receive leniency on their charges and to protect their true source of

supply. Id. at 1005. In support of his theory, the defendant sought to impeach the credibility of

the witnesses by bringing out the details of their plea agreements, relationships to one another,

and other potential motivations for lying. Id.

The 5th Circuit Court of Appeals held that the exposure of possible motivations for false

testimony is a fundamental element of cross-examination as protected and guaranteed by the

Sixth Amendment. Id. at 1008. Thus, “cross-examination into any motivation or incentive a

witness may have for falsifying his testimony must be permitted.” Id. With regard to testimony

of witnesses with substantial reason to cooperate with the government, the court held that cross-

examination should be given the largest possible scope. Id. The court ultimately remanded the

case for a new trial and held that defense counsel should be permitted to cross-examine a witness

about facts to which the jurors could draw appropriate inferences relating to the credibility of

that witness. Id.

District courts possess wide latitude to impose reasonable limits on cross-examination,

but that discretion is limited by the requirements of the Sixth Amendment. U.S. v. Cooks, 52

F.3d 101, 103 (5th Cir. 1995). In Cooks, the defendants, Cooks and Clemmons, were indicted

for distributing cocaine to a government informant. Id. At trial, the government sought to

exclude evidence of the informant’s prior arrests and drug use. Id. The trial court ruled that the
 Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 5 of 7

informant could only be cross-examined about the circumstances and motivations surrounding

his cooperation with the government as related to his prior Texas charges. Id. The defendants

were convicted by a jury and both sought a new trial based on the court’s limitation of their

cross-examination of the informant about his prior arrests in states other than Texas. Id. The

trial court only granted Clemmons a new trial, ruling that a full inquiry into the informant’s

reason for cooperating with the government would have disclosed his motivation for self-

preservation. Id. Cooks and the government appealed. Id.

The 5th Circuit Court of Appeals ruled that exposing a witness’ motive for testifying is

always relevant and is especially important with respect to witnesses who may have substantial

reason to cooperate with the government and are crucial to the prosecution. Id. at 103-104. In

this case, the jury was informed of the informant’s status as a paid career criminal informant and

his hopes for leniency on charges in exchange for his assistance to the government. Id. at 104.

However, the court held that the trial court’s limitation of cross-examination prevented other

important information pertinent to the informant’s reliability, such as his effort to avoid the

consequences of his own crimes. Id. Thus, the court found that the informant had considerable

incentive to intentionally or unconsciously slant his testimony in favor of or against a party. Id.

In this case, Fisher’s testimony as a government informant is extremely crucial to the

prosecution as well as to the defendants. If Fisher had not contacted the FBI and given them

evidence of alleged misconduct by Defendants Lee and Hill, then this case would not be before

the Court. Therefore, on cross-examination, the defendants should be allowed to demonstrate

evidence of Fisher’s dishonesty, bias, lack of integrity, true motives for offering his assistance to

the Government, and his unreliability as a witness. Fisher’s prior conviction, reversal and

lawsuit against the FBI demonstrate his motivations for offering his assistance to the
 Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 6 of 7

Government and for giving false testimony. Fisher’s lawsuit demonstrates Fisher belief that the

FBI would coerce false statements from witnesses and manipulate evidence. The probative

value of this evidence far outweighs any possible prejudicial effect to the government under Fed

R. Evid, 403. Therefore, Defense Counsel should be able to question Fisher about his prior

conviction, reversal and lawsuit against the FBI.

WHEREFORE, PREMISES CONSIDERED, the Government’s Motion in Limine

should not be granted.

Respectfully submitted,

BY: /s/ Douglas C. Greene

DOUGLAS C. GREENE
GREENE LAW FIRM
2111 N. Fielder Road, Suite #1
Arlington, Texas 76012
(817) 622-8806 TELEPHONE
(817) 887-1875 FAX
State Bar No. 49173

CERTIFICATE OF SERVICE

I hereby certify that on August 10, 2009, I electronically filed the foregoing document

with the Clerk of the Court using the CM/ECF System, which will send notification

of such filing to all counsel of record.

/s/ Douglas C. Greene

DOUGLAS C. GREENE
Case 3:07-cr-00289-M Document 932 Filed 08/11/2009 Page 7 of 7