STATUTES AND RULES

Pertinent statutes and rules are set forth in the addendum to this brief.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. 3231.

ISSUES PRESENTED FOR REVIEW

I. Whether the district court deprived Mr. xxxxxxxx of a fair trial by improperly challenging his trial testimony and impeaching his credibility, thereby giving the jury the impression that the court believed him to be guilty.

II. Whether the combined effect of the court's instructions expressing that the jury had to resolve all factual and credibility conflicts in order to reach a verdict, establishing a hierarchy between the entrapment defense elements and the elements of the charged offenses, and de-emphasizing an essential factual element of the offenses, deprived Mr. xxxxxxxx of a verdict of guilt beyond a reasonable doubt.

III. Whether the district court erred in denying Mr. xxxxxxxx a reduction for acceptance of responsibility under U.S.S.G. 3E1.1 on the grounds that he relied on an entrapment defense at trial, and in adjusting his offense level upward for obstruction of justice under U.S.S.G. 3C1.1, on the grounds that he testified falsely at trial.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On or about June 3, 1994, a federal grand jury sitting in the District of Columbia returned a two-count indictment charging Mr. xxxxxxxx with distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii) (Count One), and with distribution of cocaine base within 1,000 feet of an elementary school, in violation of 21 U.S.C. 860(a) (Count Two). [A. 7] (1) The indictment also alleged that the cash proceeds of the charged drug distribution offenses be forfeited to the government, pursuant to 21 U.S.C. 853. [A. 8]

A jury trial commenced before the Honorable Harold H. Greene on September 13, 1994. On September 19, 1994, the jury returned a verdict finding Mr. xxxxxxxx guilty on both counts and finding that the government was entitled to forfeit from Mr. xxxxxxxx $2,700 in U.S. currency. [A. 11] On December 1, 1994, before imposing sentence, the district court vacated Mr. xxxxxxxx's conviction on Count One as a lesser included offense of Count Two. (12/1/94 Tr. 2) The court then sentenced Mr. xxxxxxxx to 210 months imprisonment on Count Two, 10 years of supervised release, and a special assessment of $50. [A. 14] Thereafter, Mr. xxxxxxxx filed a timely notice of appeal. [A. 19]

B. Statement of Facts

1. The Prosecution Case

The government's case consisted of testimony from two Drug Enforcement Administration ("DEA") agents (Ronald xxxxx, who acted in an undercover capacity as a drug purchaser, and Alexander xxxxxxx, who was part of the surveillance team), a DEA chemist, and Mr. xxxxxxxx's sister (xxxxx xxxxxxxx), who was the owner of the car allegedly driven by Mr. xxxxxxxx during the drug transaction.

In November 1992, a confidential informant named xxxxxxx xxxx contacted Agent xxxxxxx and indicated to him that he (xxxxxxx) had set up a drug transaction with Mr. xxxxxxxx. (9/14/94 Tr. 33-34, 51) xxxxxxx met xxxxxx in April 1992 through another drug agent who previously had used xxxxxx as an informant. (9/14/94 Tr. 48) At that time, xxxxxx had criminal charges pending against him. (9/14/94 Tr. 48) Based upon xxxxxx's word that he had arranged a meeting with Mr. xxxxxxxx, xxxxxxx went with xxxxxx to see xxxxxxxx. (9/14/94 Tr. 51) When xxxxxxxx did not show up after several hours, xxxxxxx and xxxxxx left. (9/14/94 Tr. 51)

When xxxxxx told xxxxxxx that he had set up another meeting with xxxxxxxx, xxxxxxx was skeptical. (9/14/94 Tr. 52) Although xxxxxx claimed that xxxxxxxx had contacted him again, xxxxxxx was not privy to the conversations between xxxxxx and xxxxxxxx. (9/14/94 Tr. 53) According to xxxxxxx, there were other unsuccessful attempts to make drug purchases from Mr. xxxxxxxx. (9/14/94 Tr. 95)

On December 8, 1992, at about 3:00 p.m., xxxxxxx and xxxxxx drove to the corner of 7th & S Street, N.W., Washington, D.C., where they parked their car and then paged Mr. xxxxxxxx. (9/14/94 Tr. 11-12) xxxxxxx wore a KEL body wire and a body tape recorder. (9/14/94 Tr. 12-13) The KEL body wire enabled xxxxxxx to broadcast his conversations to the surveillance vehicles in the area. (9/14/94 Tr. 12-14) One of the surveillance vehicles, a van, was parked on the north side of S Street, facing the front of xxxxxxx's vehicle. (9/14/94 Tr. 11-12, 14-15)

According to xxxxxxx, he first saw Mr. xxxxxxxx as he was dropped off at the corner of 7th & S Street. (9/14/94 Tr. 15) As Mr. xxxxxxxx walked into the corner liquor store, xxxxxxx blew the horn to alert him of their presence. (9/14/94 Tr. 16) xxxxxxxx then motioned to xxxxxx, who followed him into the liquor store. (9/14/94 Tr. 16, 63) xxxxxxx testified that he intended to purchase 3 ounces of crack at $1,000 per ounce but that xxxxxx negotiated the price down to $900 per ounce, for a total of $2,700. (9/14/94 Tr. 20, 63-64) Because xxxxxx was not wearing a body wire or other recording device, xxxxxxx had no way of confirming the conversation between xxxxxxxx and xxxxxx inside the liquor store. (9/14/94 Tr. 57) After a couple of minutes, xxxxxxxx and xxxxxx left the store and went their separate ways. (9/14/94 Tr. 17) xxxxxx returned to xxxxxxx's vehicle and xxxxxxxx walked out of the area. (9/14/94 Tr. 17)

Mr. xxxxxxxx eventually walked back to the liquor store where he again met xxxxxx. (9/14/94 Tr. 17) They met inside the store and then left separately. (9/14/94 Tr. 17-18) xxxxxx again returned to xxxxxxx's car and xxxxxxxx walked around the corner, heading west on S Street. (9/14/94 Tr. 17-18) xxxxxxxx then returned and walked over to xxxxxxx's car where he and xxxxxxx spoke briefly. (9/14/94 Tr. 18) This was the first time that xxxxxxx had ever spoken in person to xxxxxxxx. (9/14/94 Tr. 51) xxxxxxxx told xxxxxxx that he would return driving a brown Toyota. (9/14/94 Tr. 18)

According to xxxxxxx, xxxxxxxx did return in a brown Toyota and parked behind xxxxxxx's car. (9/14/94 Tr. 19) xxxxxxx observed xxxxxxxx driving with a white styrofoam cup in his mouth. (9/14/94 Tr. 19; Gov. Ex. 1 (tape recording of body wire transmission); Gov. Ex. 3 (microcassette tape)) After xxxxxxxx parked, he went inside xxxxxxx's car. (9/14/94 Tr. 19) At that time, xxxxxxx sat in the driver's seat, xxxxxxxx sat in the front passenger seat, and xxxxxx went into the rear seat. (9/14/94 Tr. 20) Based upon xxxxxx's advice, xxxxxxx made certain that his gun was visible to xxxxxxxx on the floorboard of the car. (9/14/94 Tr. 54, 97) According to xxxxxxx, xxxxxxxx told him that he had the crack in the cup and that he carried it in his mouth so that if the police stopped him, he would appear to be drinking from it. (9/14/94 Tr. 23)

xxxxxxx testified that Mr. xxxxxxxx took the styrofoam cup out of his mouth and poured the crack out of the cup into his hand and then handed the drugs to xxxxxxx. (9/14/94 Tr. 20-21) The drugs, which consisted of an off-white, rock-like substance, were packaged in three separate plastic baggies. (9/14/94 Tr. 21; Gov. Ex. 4 (DEA heat-seal containing drugs in plastic baggies); Gov. Ex. 5 (DEA-7)) xxxxxxx then gave $2,700 in U.S. currency to xxxxxxxx. (9/14/94 Tr. 21-22) According to xxxxxxx, xxxxxxxx began to count the money and then decided to go into a nearby store to finish counting it. (9/14/94 Tr. 22) A minute or so later, xxxxxx followed xxxxxxxx into the store from which they later came out together. (9/14/94 Tr. 22) xxxxxxxx went over to the car and told xxxxxxx that everything was fine. (9/14/94 Tr. 23) xxxxxxx asked xxxxxxxx if they could continue dealing together and, according to xxxxxxx, xxxxxxxx told him that he would be "jive busy." (9/14/94 Tr. 24) When xxxxxxx asked for his pager number, xxxxxxxx told him to obtain it from xxxxxx. (9/14/94 Tr. 24) xxxxxxxx then got into his car and drove away. (9/14/94 Tr. 24) xxxxxxx testified that based upon his measurements, the location of the drug transaction was approximately 440 feet from the Cleveland Early Development Care Center. (9/14/94 Tr. 45)

Despite xxxxxxx's expressed interest in doing subsequent deals with xxxxxxxx, this was the first and only undercover transaction in which xxxxxxxx was involved. (9/14/94 Tr. 68) xxxxxxx admitted that he did not know the source of the drugs he received from xxxxxxxx and, when pressed on cross-examination, testified that the drugs could have come even from the informant. (9/14/94 Tr. 72-73) DEA Agent Alexander Yasevich was part of the surveillance team assigned to observe the undercover meeting between xxxxxxx and Mr. xxxxxxxx on December 8, 1992. (9/14/94 Tr. 101-102) Sitting in the back seat of the minivan parked on the northwest corner of 7th & S Street, facing south, Yasevich operated a hand-held video camera/recorder and videotaped the transaction between xxxxxxx and xxxxxxxx. (9/14/94 Tr. 103-104) The videotape was played in its entirety to the jury. (Gov. Ex. 6) After viewing the videotape, Yasevich testified that the tape did not depict Mr. xxxxxxxx motioning to xxxxxx or to xxxxxxx while they were sitting in the car. (9/14/94 Tr. 114) Moreover, Yasevich did not observe Mr. xxxxxxxx in possession of any drugs. (9/14/94 Tr. 114-115)

After the transaction, the surveillance van was driving around the neighborhood and inadvertently came upon Mr. xxxxxxxx parked on the corner of 9th & S Street. (9/14/94 Tr. 110) Yasevich also videotaped xxxxxxxx at that time and that tape was played in its entirety to the jury. (9/14/94 Tr. 110-111, Gov. Ex. 7) Yasevich observed Mr. xxxxxxxx drive out of the area in a car with D.C. tag 217288. (9/14/94 Tr. 112)

The government's final witness was Willie xxxxxxxx, the defendant's sister. Ms. xxxxxxxx testified that she owned a Toyota Corolla with D.C. tag 217288 from December 2, 1986 until January 12, 1994. (9/16/94 Tr. 12-13)

2. The Defense Case

a. The Informant's Testimony

In support of Mr. xxxxxxxx's entrapment defense, he called as a hostile witness Darrell xxxxxx, the informant. (9/14/94 Tr. 117-121) xxxxxx, who had two gun convictions in 1986, became an informant in 1990 when he had cocaine distribution charges pending against him. (9/16/94 Tr. 15-16) In return for his cooperation, xxxxxx's drug charges were reduced and he was placed on probation. (9/16/94 Tr. 16) xxxxxx continued his criminal activity even after he became a government informant. (9/16/94 Tr. 17) In 1991, xxxxxx picked up another weapons conviction and at the time of his testimony in this case had weapons and threats charges pending against him. (9/16/94 Tr. 17)

In 1992, xxxxxx was working as an informant setting up people to be arrested in drug cases. (9/16/94 Tr. 14-15) During that time, he set up Mr. xxxxxxxx. (9/16/94 Tr. 18) In this regard, xxxxxx negotiated a drug deal with xxxxxxxx and arranged for him to meet with the undercover agent (xxxxxxx). (9/16/94 Tr. 18-19) xxxxxx did not wear a body wire during any of his conversations with Mr. xxxxxxxx and none of the conversations was recorded. (9/16/94 Tr. 19) Although xxxxxx claimed that he did not receive any money from the government in return for his work as an informant in this case, the government did give him $5,000 for moving expenses. (9/16/94 Tr. 21)

In response to defense counsel's questions, xxxxxx admitted in his direct testimony that he was the one who called Mr. xxxxxxxx, informed Agent xxxxxxx as to what he (xxxxxx) thought he could do with xxxxxxxx, and arranged the meeting with xxxxxxxx. (9/16/94 Tr. 26) xxxxxx further explained that he wanted xxxxxxx to display his gun to xxxxxxxx so that xxxxxxxx would believe that xxxxxxx was a "bad guy." (9/16/94 Tr. 27-28) xxxxxx himself carried a weapon in 1992 and bragged to xxxxxxx about his violent use of his gun, such as using it to threaten to kill someone. (9/16/94 Tr. 28-31) Although xxxxxx denied that he threatened Mr. xxxxxxxx in order to compel him to participate in the drug deal, xxxxxx admitted that xxxxxxxx did not show up the first time that xxxxxx had arranged a meeting between xxxxxxxx and xxxxxxx. (9/16/94 Tr. 33-34) xxxxxx also confirmed that he set up xxxxxxxx so that xxxxxxx could make a drug arrest. (9/16/94 Tr. 35) In return, the government helped keep xxxxxx out of jail in his pending cases. (9/16/94 Tr. 35)

In his cross-examination by the prosecutor, xxxxxx testified that prior to this transaction, xxxxxx set up deals between xxxxxxxx and xxxxxx's friends from Virginia who would come into the District of Columbia to purchase drugs. (9/16/94 Tr. 36-37) According to xxxxxx, xxxxxxxx had been selling drugs for all of the 15 years they had known each other. (9/16/94 Tr. 37) Notwithstanding this claim, xxxxxx testified that the idea to set up xxxxxxxx inadvertently came from a third person who suggested to xxxxxx and xxxxxxx that xxxxxxxx had drugs to sell. (9/16/94 Tr. 38)

Toward the end of xxxxxx's cross-examination, the prosecutor pursued a line of questioning that apparently sought to establish that Mr. xxxxxxxx had threatened xxxxxx's life. In this regard, xxxxxx testified that the government had given him money for moving expenses because of the threats on his life. (9/16/94 Tr. 38-39) In response to the prosecutor's questioning, xxxxxx testified that he was still in fear and was scared to be testifying at xxxxxxxx's trial. (9/16/94 Tr. 39) The court sustained defense counsel's objection to the prosecutor's question as to why xxxxxx was scared to testify. (9/16/94 Tr. 40) However, the prosecutor established that xxxxxx recognized people sitting in the courtroom during his testimony. (9/16/94 Tr. 40) Finally, when the prosecutor persisted, the court cut off this line of questioning out of a concern that the jury would infer that xxxxxxxx and "his people" were threatening xxxxxx, "and that might be prejudicial to his [xxxxxxxx] having a fair trial." (9/16/94 Tr. 40-41) In his rebuttal closing argument, the prosecutor made reference to the threats against xxxxxx and reminded the jury that the courtroom was full when the informant testified. (9/16/94 Tr. 115-16)

b. The Defendant's Testimony

Mr. xxxxxxxx testified in his own behalf. He explained that he knew Darrell xxxxxx from the neighborhood in which he (xxxxxxxx) lived. (9/16/94 Tr. 46) Sometime prior to December 8, 1992, xxxxxx told xxxxxxxx that he had some drugs and wanted xxxxxxxx to help him by acting as if the drugs belonged to him rather than to xxxxxx. (9/16/94 Tr. 46-47) In return, xxxxxx promised to give xxxxxxxx some clothes or "something." (9/16/94 Tr. 47) When xxxxxxxx told xxxxxx that he did not want to be involved in the drug deal, xxxxxx pulled out his gun and threatened him. (9/16/94 Tr. 47-48) Having heard in the neighborhood that xxxxxx was a violent person who had shot a couple of men and had threatened at least one other person by putting a gun to his head, xxxxxxxx was afraid of xxxxxx and succumbed to xxxxxx's demands. (9/16/94 Tr. 48-49)

As directed by xxxxxx, xxxxxxxx met him in a liquor store on the corner of 7th and S Street, N.W., on December 8, 1992. (9/16/94 Tr. 49-50) At that time, xxxxxx stated that he had some drugs to sell but that he did not want the prospective buyer to know that the drugs belonged to him (xxxxxx). (9/16/94 Tr. 49) Initially, xxxxxx planned to have xxxxxxxx hand him the drugs and xxxxxx would then give them to the buyer. (9/16/94 Tr. 49, 51) When xxxxxxxx first met xxxxxx in the liquor store, xxxxxx told him to walk around the corner and then return after a short time. (9/16/94 Tr. 50) When xxxxxxxx returned, xxxxxx reached into his pocket, gave xxxxxxxx a package, and told him to walk around the corner again and return in ten to fifteen minutes. (9/16/94 Tr. 50)

When xxxxxxxx returned, xxxxxx told him that he had changed his mind and had decided that xxxxxxxx should give the drugs directly to the buyer. (9/16/94 Tr. 51) Although xxxxxxxx did not clearly recall the actual exchange, he testified that he had the drugs on him and thought that he handed them to Agent xxxxxxx in exchange for the money. (9/16/94 Tr. 51-52) After the transaction was completed, xxxxxx and xxxxxxxx went into a store where xxxxxxxx gave the money to xxxxxx. (9/16/94 Tr. 52) xxxxxx told xxxxxxxx that he was going to buy some clothes for him and that he would be back in touch with him. (9/16/94 Tr. 52) xxxxxxxx explained that he did not intend to sell the drugs that xxxxxx gave him and that he would not have participated in the transaction if xxxxxx had not threatened him with a gun. (9/16/94 Tr. 52-53)

On cross-examination, xxxxxxxx testified that he was convicted previously of carrying a pistol without a license. (9/16/94 Tr. 54) After identifying himself on the videotapes played by the government, Mr. xxxxxxxx testified that he did not remember having a styrofoam cup when he returned to the scene of the transaction driving his sister's car. (9/16/94 Tr. 54-55) However, after watching about two minutes of the videotape, xxxxxxxx's memory was refreshed that he had a cup but he testified that the drugs were in his pocket rather than in the cup. (9/16/94 Tr. 55-57) He did not recall that he had told xxxxxxx during the drug transaction that he (xxxxxxxx) carried things in a cup so he could throw them away if the police stopped him. (9/16/94 Tr. 57) Mr. xxxxxxxx did not remember when or where xxxxxx threatened him with the gun. (9/16/94 Tr. 58-60) xxxxxxxx testified that he never had previously distributed drugs and that he was somewhat confused as to what he was supposed to do during the drug transaction. (9/16/94 Tr. 64-65)

By playing the audiotape recording of the drug transaction, the prosecutor during cross-examination attempted to refresh xxxxxxxx's recollection regarding various aspects of the drug deal. (9/16/94 Tr. 65-66) After listening to the tape, xxxxxxxx testified that he thought it was his voice on the tape but that he could not recall having that particular conversation with Agent xxxxxxx. (9/16/94 Tr. 66-68) When xxxxxxxx testified that he did not remember making certain statements that were on the tape, the court asked him several questions concerning his voice on the tape. (9/16/94 Tr. 68)

The prosecutor then played another portion of the audiotape. (9/16/94 Tr. 68) After listening to the tape, xxxxxxxx testified that it did not sound like his voice on the tape. (9/16/94 Tr. 68-69) When xxxxxxxx could not recall making various statements on the tape, the court again intervened and asked him some follow-up questions. (9/16/94 Tr. 70)

After the court's interrogation, the prosecutor asked Mr. xxxxxxxx a line of questions regarding the payment by Agent xxxxxxx of the money in exchange for the drugs. (9/16/94 Tr. 71-72) xxxxxxxx testified that he did not remember xxxxxxx handing him a big wad of money or whether he had the money on him when he went into the carry-out store. (9/16/94 Tr. 71) Although xxxxxxxx testified that he did not count the money, the prosecutor asked him whether he remembered having $2,700 with him. (9/16/94 Tr. 71) xxxxxxxx responded that he did not remember having that amount of money and that he had never seen that much money before. (9/16/94 Tr. 71-72) When the prosecutor asked him whether he saw $2,700 on the day of the drug transaction, xxxxxxxx stated that he was confused and repeated that he had never seen that amount of money before. (9/16/94 Tr. 72) The prosecutor then added to xxxxxxxx's confusion by asking whether he had any memory of seeing any money on the day of this transaction. (9/16/94 Tr. 72) When xxxxxxxx testified that he had no such recollection, the court conducted another examination relating to the money. (9/16/94 Tr. 72)

After the prosecutor played the final portion of the audiotape, xxxxxxxx again testified that it was not his voice on the tape. (9/16/94 Tr. 72-73, 75-76) The prosecutor then played a portion of one of the videotapes. (9/16/94 Tr. 73) Although xxxxxxxx confirmed that he was the person depicted in the videotape, he did not have a separate recollection of taking some of the actions portrayed on the tape. (9/16/94 Tr. 74-75)

On redirect, xxxxxxxx testified that he had never heard his voice on a tape recording before and he didn't know that he sounded like that on tape. (9/16/94 Tr. 77-78) When xxxxxxxx testified that xxxxxx's threat occurred prior to the drug transaction on December 8, 1992 (9/16/94 Tr. 78-79), the court impeached him with his cross-examination testimony in which xxxxxxxx stated that he did not remember when the threat occurred. (9/16/94 Tr. 79)

Although he still appeared to be somewhat confused, xxxxxxxx testified on redirect that xxxxxxx gave him some money as part of the drug transaction. (9/16/94 Tr. 80) However, he explained that because xxxxxx was the one who counted the money, xxxxxxxx did not know how much was there. (9/16/94 Tr. 80-81) When defense counsel attempted on redirect to clarify xxxxxxxx's testimony regarding the styrofoam cup, the court intervened once again and asked him some additional questions regarding the cup. (9/16/94 Tr. 82)

3. The Jury Instructions

In its instructions, the district court emphasized the jury's obligation to resolve all factual issues and credibility disputes. In essence, the court charged that the jurors had to decide "what really happened" on the date of the alleged drug transaction and "who [was] telling the truth." (9/16/94 Tr. 118, 121)

In instructing the jury as to the elements of the charged offenses, the court commented on the identity of the controlled substance seized in the drug transaction, recalling that the chemist's uncontradicted testimony that the substance was cocaine base was the only evidence on that point. (9/16/94 Tr. 125) Therefore, the court instructed the jury that "it is pretty clear that this stuff is crack, cocaine base, but you must make that decision." (9/16/94 Tr. 125-126)

Finally, after discussing the elements of the charged offenses, the court prefaced its entrapment instruction by remarking that the elements of the entrapment defense appeared to be "more important" than the elements of the charged offenses. (9/16/94 Tr. 127) The judge then declared that as he understood it, there wasn't "much contest" about the elements of the crimes. (9/16/94 Tr. 127)

4. The Sentencing

Based upon a total offense level of 34 and a criminal history category of II, the presentence report ("PSR") indicated that Mr. xxxxxxxx's guideline imprisonment range was 168 to 210 months. (PSR at 11) (2) This calculation included no adjustments for acceptance of responsibility or for obstruction of justice. (PSR at 4-5)

At sentencing, the district court denied a downward adjustment for acceptance of responsibility on the grounds that Mr. xxxxxxxx raised an entrapment defense. (12/1/94 Tr. 3-5, 14) Moreover, after considering the prosecution's sentencing memorandum and the arguments of counsel (12/1/94 Tr. 5-6, 8-13), the court found that Mr. xxxxxxxx obstructed justice by committing perjury in his trial testimony. (12/1/94 Tr. 14) On that basis, the court increased Mr. xxxxxxxx's offense level to 36 and imposed a sentence of 210 months imprisonment. (12/1/94 Tr. 14-15)

SUMMARY OF ARGUMENT

In this appeal, Mr. xxxxxxxx attacks his conviction and sentence on three grounds. First, by extensively questioning Mr. xxxxxxxx during his trial testimony, the district court gave the jury the impression that it believed the defendant to be guilty. Although a trial judge has the authority to examine witnesses to clarify testimony, the district judge in this case took on the role of an advocate by challenging Mr. xxxxxxxx's testimony and by attempting to impeach his credibility in front of the jury. Moreover, the timing of the court's interrogation exacerbated the prejudice as the court asked most of its questions during the prosecutor's cross-examination, thereby giving the appearance that the court was reinforcing the prosecutor's attack on Mr. xxxxxxxx's credibility. The court's further questioning during Mr. xxxxxxxx's redirect examination undermined defense counsel's efforts to rehabilitate her client's testimony. Under these circumstances, the court's excessive questioning prejudiced the defense and requires a new trial.

Second, the district court's instructional errors diluted the government's burden of proof. By instructing the jurors that they had to determine "what really happened" and who "was telling the truth," the court erroneously placed the emphasis on the jury's duty to resolve factual and credibility disputes rather than its constitutional obligation to determine whether the government proved beyond a reasonable doubt the charges against Mr. xxxxxxxx. The court compounded this error by instructing the jury that the elements of Mr. xxxxxxxx's entrapment defense were "in a way more important" than the essential elements of the charged offenses and that the substance Mr. xxxxxxxx allegedly distributed was "pretty clearly" crack cocaine. The combined effect of the court's instructional errors diluted the government's burden of proof and deprived Mr. xxxxxxxx of a verdict of guilt beyond a reasonable doubt.

Finally, Mr. xxxxxxxx challenges two of the court's sentencing rulings. The court erroneously denied him an acceptance of responsibility reduction because he relied at trial on an entrapment defense. This Court recently held that the district court cannot deny an acceptance of responsibility on the grounds that the defendant raised an entrapment defense without determining whether the particular facts and circumstances warrant a reduction. United States v. Layeni, 90 F.3d 514, 525 (D.C. Cir. 1996).

The district court also erred in increasing Mr. xxxxxxxx's offense level by 2 for obstruction of justice by giving false testimony at trial. Contrary to the court's ruling, Mr. xxxxxxxx did not commit perjury because his allegedly false testimony did not concern a material matter. Given Mr. xxxxxxxx's entrapment defense in which he admitted to distributing drugs, his testimony regarding the details of the drug exchange itself were not intended to substantially affect the jury's verdict. Moreover, the district court erred in finding by clear and convincing evidence that Mr. xxxxxxxx's testimony constituted perjury where the facts and circumstances surrounding the testimony established that, if false at all, the testimony was likely the result of such factors as confusion or lack of memory. Because the court should not have denied an acceptance of responsibility reduction or enhanced Mr. xxxxxxxx's sentence for obstruction of justice, the sentence should be vacated.

The combination of the court's extensive interrogation of Mr. xxxxxxxx and its erroneous jury instructions diluting the burden of proof deprived Mr. xxxxxxxx of a fair trial. Moreover, the court's rulings on the acceptance of responsibility and obstruction of justice adjustments were erroneous. Therefore, Mr. xxxxxxxx's conviction and sentence cannot stand.

ARGUMENT

I. THE DISTRICT COURT DEPRIVED MR. xxxxxxxx OF A FAIR TRIAL BY IMPROPERLY CHALLENGING HIS TRIAL TESTIMONY AND IMPEACHING HIS CREDIBILITY, THEREBY GIVING THE JURY THE IMPRESSION THAT THE COURT BELIEVED HIM TO BE GUILTY



A. Standard of Review



The propriety of the district court's interrogation of Mr. xxxxxxxx during his trial testimony is reviewed for abuse of discretion. United States v. Liddy, 509 F.2d 428, 439 (D.C. Cir. 1974) (en banc), cert. denied, 420 U.S. 911 (1975). When a trial judge intervenes in the conduct of a trial, this Court "must determine whether the intervention is in pursuit of justice and whether that intervention is consistent with the premises of the limits on intervention." United States v. McCord, 509 F.2d 334, 348 (D.C. Cir. 1974), cert. denied, 421 U.S. 930 (1975).

B. Introduction

Mr. xxxxxxxx defended against the drug charges brought by the government by raising an entrapment defense. Essentially, xxxxxxxx's theory of defense was that the confidential informant's threat induced xxxxxxxx into participating in the drug transaction. Although the defense called the informant as a hostile witness, Mr. xxxxxxxx presented the entrapment defense almost exclusively through his own testimony. The entire trial lasted only two days and the presentation of the defense took a portion of the second day.

The district court did not question extensively any witness other than Mr. xxxxxxxx. Although the court did not intervene during xxxxxxxx's direct testimony, it asked a total of 24 questions during his cross-examination and redirect testimony. The court conducted 5 separate interrogations of xxxxxxxx occurring within 14 pages of the trial transcript. (9/16/94 Tr. 68, 70, 72, 79, 82) The court's questions challenged xxxxxxxx's testimony, elicited answers generally favorable to the prosecution, derided xxxxxxxx with sarcasm, impeached his credibility, and necessarily gave the jury the impression that the court did not believe xxxxxxxx's testimony. Moreover, by repeatedly interrupting xxxxxxxx's redirect testimony, the court undermined defense counsel's efforts to rehabilitate the defendant.

It is clear that a trial judge has the authority to question witnesses. See, e.g., United States v. Spencer, 25 F.3d 1105, 1109 (D.C. Cir. 1994) (citing FED. R. EVID. 614(b)). However, this Court has drawn a clear line between proper judicial questioning of a witness to clarify testimony, Spencer, 25 F.3d at 1109-10, and a trial judge's overzealous intervention that takes on the role of an advocate rather than an objective participant in the trial proceedings. See United States v. Winstead, 74 F.3d 1313, 1319 (D.C. Cir. 1996) (judge should avoid questioning that extends to advocacy); United States v. Barbour, 420 F.2d 1319, 1320-21 (D.C. Cir. 1969) (judge must remain "a disinterested and objective participant in the proceedings, and . . . hold to a minimum his questioning of witnesses in a jury trial." (internal quotation marks, footnote, and citation omitted)); Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964) ("a presiding judge can control the trial without participating actively in examination of witnesses.").

Significantly, this Court previously has admonished the district judge in the instant case that excessive questioning of witnesses by the trial court can constitute reversible error. See United States v. Rawlings, 73 F.3d 1145, 1146 n.1 (D.C. Cir. 1996) ("we remind the district court that overzealous quizzing by the judge . . . [may cause] a breach of the atmosphere of judicial evenhandedness that should pervade the courtroom.") (internal quotation marks and citation omitted); United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.) ("we nonetheless feel constrained to once again put forth the admonishment that [p]articularly when the questioning is designed to elicit answers favorable to the prosecution, it is far better for the trial judge to err on the side of [a]bstention from intervention in the case.") (internal quotation marks and citations omitted), cert. denied, 493 U.S. 835 (1989). Because the trial judge's excessive questioning of Mr. xxxxxxxx crossed the line from neutral umpire to advocate, there is a very real danger that the court's conduct prejudiced the jury against the defendant. Under these circumstances, Mr. xxxxxxxx is entitled to a new trial.

C. The Court's Questioning of Mr. xxxxxxxx During Cross-Examination

Since the only witness other than Mr. xxxxxxxx called by the defense was the confidential informant, the defendant's own testimony was the key to his entrapment defense. During xxxxxxxx's direct testimony and the first half of his cross-examination, the trial judge did not ask him any questions. However, during the latter portion of the prosecutor's cross-examination, the court repeatedly interrupted to make its own inquiry of Mr. xxxxxxxx. Specifically, the court asked a number of questions concerning the identification of Mr. xxxxxxxx's voice on the audiotape recording of the drug transaction, which the prosecutor played to refresh xxxxxxxx's recollection concerning various aspects of the drug deal. (9/16/94 Tr. 65-66) After listening to the tape, xxxxxxxx testified that he thought it was his voice on the tape. (9/16/94 Tr. 66) When xxxxxxxx testified that he did not recall making certain statements that were on the tape, the prosecutor aggressively cross-examined him regarding his inability to recall the substance of the taped conversation. (9/16/94 Tr. 67-68) Notwithstanding the prosecutor's line of cross-examination and xxxxxxxx's identification of his voice on the tape, the court returned to the voice identification issue:

THE COURT: Well, is that your voice on the tape?



THE WITNESS: I can't really tell.



THE COURT: Does it sound like your voice?



THE WITNESS: Nope.



THE COURT: It doesn't? Who does it sound like?



THE WITNESS: I don't really know who it sounds like. I know it don't [sic] sound like me.



THE COURT: Okay.



(9/16/94 Tr. 68)

Immediately after the court's questioning, the prosecutor asked an argumentative question as to whether the voice on the tape might be that of "some actor the government hired to play [xxxxxxxx]." (9/16/94 Tr. 68) The prosecutor then played another portion of the tape and asked xxxxxxxx several more voice identification questions. (9/16/94 Tr. 68-69) When xxxxxxxx again testified that it did not sound like his voice on the tape and that he did not recall making various statements on the tape, the prosecutor ended that line of questioning and began cross-examining xxxxxxxx on some of the details of the drug exchange itself. (9/16/94 Tr. 69-70) After xxxxxxxx testified that he did not remember many of the details, the court returned to the voice identification issue and asked questions that fairly can be described as argumentative:

THE COURT: You were in the car?



THE WITNESS: Yep.



THE COURT: But that isn't your voice?



THE WITNESS: It ain't my voice.



THE COURT: It sounds like President Clinton or Marion Barry?



THE WITNESS: I don't know who it sounds like. I know it don't sound like me.



DEFENSE COUNSEL: Objection, your honor.



(9/16/94 Tr. 70)



Although the court's questioning generally concerned a line of inquiry opened by the prosecutor, the judge's intervention was not necessary to alleviate any confusion in xxxxxxxx's testimony. In his cross-examination, the prosecutor clearly had established that xxxxxxxx did not recognize fully his voice on the audiotape and did not recall making certain statements that were on the tape. Thus, xxxxxxxx's testimony on this point was clear and there was no need for the judge's intervention. Moreover, since the tape recording was played for the jury and admitted into evidence, the jury was equipped to make its own decision as to whether it was xxxxxxxx's voice on the tape. More importantly, because xxxxxxxx admitted as part of his entrapment defense that he participated in the drug transaction with the undercover agent and the confidential informant, his recollection of particular conversations with the agent was relatively unimportant to the government's case. In any event, the prosecutor was effectively cross-examining xxxxxxxx on this point and hardly needed any help from the court.

The judge's interrogation was an immediate follow-up of the government's cross-examination concerning xxxxxxxx's voice identification and recollection of statements made on the tape recording. Thus, the court's questioning appeared to be further cross-examination, an appearance that was reinforced by the prosecutorial nature of the questions. After the judge's first line of inquiry, the prosecutor then played another portion of the audiotape and resumed cross-examining xxxxxxxx on the same points covered by the judge's questioning. In this way, the court's second intervention buttressed the prosecutor's cross-examination. Where the prosecutor and trial judge take turns asking essentially the same line of questions that go directly to the defendant's credibility, the jury reasonably can infer that the court agrees with the government that the accused is not telling the truth and, therefore, is guilty of the crime charged. See United States v. Filani, 74 F.3d 378, 387 (2d Cir. 1996) (judge's questioning of defendant deprived him of fair trial where court joined in cross-examination and created "tag team" situation which gave jury "impression of bias").

In addition to the timing of the judge's interventions during the defendant's cross-examination, the court's questions themselves also tended to show incredulity toward xxxxxxxx's testimony. Questions such as, "[w]ho does it sound like?" and "[i]t sounds like President Clinton or Marion Barry?" are examples of the court's apparent disbelief of xxxxxxxx's failure to recognize his voice on the tape and to recollect the taped conversations. The sarcastic nature of the questions only could have reinforced the jury's reasonable perception that the court was looking with disfavor at the defendant's testimony in particular and his entrapment defense in general. See United States v. Wyatt, 442 F.2d 858, 860-61 (D.C. Cir. 1971) (conviction reversed where trial judge's extensive questioning of defendant and alibi witnesses in case where credibility of defendant was particularly important in establishing defense gave jury impression that court believed defendant was guilty).

After the court's second interrogation of xxxxxxxx concerning his voice on the tape, the prosecutor opened a new line of inquiry concerning xxxxxxxx's exchange with Agent xxxxxxx of money for the drugs. xxxxxxxx had testified on direct examination that he did not clearly remember the exchange but admitted that he had the drugs on him and had received the money from xxxxxxx. (9/16/94 Tr. 51-52) Although xxxxxxxx testified on cross-examination that he did not count the money and did not remember xxxxxxx handing him a big "wad" of money, the prosecutor asked him whether he recalled receiving $2,700 from xxxxxxx. (9/16/94 Tr. 71-72) When the prosecutor continued asking him about the $2,700, xxxxxxxx became confused and repeated that he did not know whether he had received that amount of money. (9/16/94 Tr. 72)

When the prosecutor asked xxxxxxxx whether he recalled seeing "any money" on the day of the drug transaction, xxxxxxxx answered "yeah." (9/16/94 Tr. 72) The court then asked a question apparently to clarify xxxxxxxx's last answer and the following exchange occurred:

THE COURT: "Yeah" means you saw it or you didn't see it?



THE WITNESS: He's getting me confused a little bit.



THE COURT: No. Did you have money, $2,700?



THE WITNESS: I didn't have no 2,700.



THE COURT: You didn't?



THE WITNESS: No.



THE COURT: Okay.



(9/16/94 Tr. 72)

Although the court's attempt to clarify xxxxxxxx's last answer might have been proper, the judge should not have pursued the line of questioning concerning xxxxxxxx's receipt of $2,700. Because the prosecutor already had questioned xxxxxxxx on this point and xxxxxxxx clearly had testified that he did not count the money and therefore did not know whether he had received that particular amount of money, there was no reason for the court to pursue that line of inquiry. Moreover, the judge's negative response to xxxxxxxx's statement that the prosecutor was confusing him ("No. Did you have money, $2,700?"), is troubling. The jury reasonably could have inferred from the court's response that the judge was defending the prosecutor against xxxxxxxx's accusation that the prosecutor was confusing him. Alternatively, the jury could have interpreted the court's negative response as an expression of disbelief of xxxxxxxx's claim that he was confused, the inference being that the court believed that xxxxxxxx was not confused but was simply lying about the $2,700. Coming from the judge, this suggestion was devastating for "'jurors hold the robed trial judge in great awe and reverence' and 'his lightest word or intimation is received with deference and may prove controlling.'" Barbour, 420 F.2d at 1321-22 (quoting Hawkins v. United States, 310 F.2d 849, 852 (D.C. Cir. 1962), and Starr v. United States, 153 U.S. 614, 626 (1894)).

In the context of Mr. xxxxxxxx's entrapment defense in which he admitted that he gave the drugs to Agent xxxxxxx in exchange for money, the court's questioning concerning the exact amount of money was unnecessary. Once again, the court appears to be challenging xxxxxxxx's testimony rather than attempting to elucidate it. By pursuing this line of questioning, the trial judge failed to heed this Court's admonition that if more than one or two questions are involved, the judge should call both attorneys to the bench and suggest what questions should be asked. United States v. Green, 429 F.2d 754, 760 (D.C. Cir. 1970). By asking xxxxxxxx about the amount of money he received in the drug transaction after xxxxxxxx clearly had testified that he did not count the money, the judge apparently failed to consider the possibility that xxxxxxxx's answers could give "undue eminence to matters otherwise irrelevant to the offenses with which the [defendant] was charged." Wyatt, 442 F.2d at 860. Moreover, because the court's questioning again immediately followed-up the government's cross-examination on the same point, the judge implicitly, if not explicitly, appeared to have endorsed the government's view of xxxxxxxx's credibility. Taken in conjunction with the court's interrogation concerning xxxxxxxx's voice on the tape recording, this additional intervention constituted a breach of the trial judge's impartiality and likely damaged the defendant's credibility in the jury's eyes.

D. The Court's Questioning During Mr. xxxxxxxx's Redirect Examination

On redirect, Mr. xxxxxxxx attempted to explain his inability to recall certain facts relating to the drug transaction and his failure to recognize his voice on the tape recording. In this regard, xxxxxxxx testified that the incident occurred about two years prior to his testimony. (9/16/94 Tr. 77) He also explained that he had not previously heard his voice on tape and did not know that he sounded like that on tape. (9/16/94 Tr. 77-78)

During redirect, xxxxxxxx testified that the informant's threat that induced him to participate in the drug deal was made "before the incident took place." (9/16/94 Tr. 79) On cross-examination, xxxxxxxx had testified that he did not recall whether the informant's threat had occurred on the day of the transaction or a day or two earlier. (9/16/94 Tr. 59) Although xxxxxxxx's redirect testimony on this point was not inconsistent with his cross-examination testimony, as the threat must have been made before the drug transaction took place, the court interpreted xxxxxxxx's redirect testimony on this point as being inconsistent and attempted to impeach him with his prior cross-examination testimony:

THE COURT: Before that?



THE WITNESS: Before the incident took place.



THE COURT: It was before that?



THE WITNESS: Yes.



THE COURT: Now, when the prosecutor asked you that same question, you said you

didn't remember.



THE WITNESS: He didn't ask me that same question.



THE COURT: He didn't ask you that question?



THE WITNESS: Nope, not that I know of.



THE COURT: Okay.



DEFENSE COUNSEL: I was referring to the threat.



THE COURT: He can answer for himself.

(9/16/94 Tr. 79)

The judge's attempted impeachment of xxxxxxxx took on the aspect of advocacy rather than impartiality. See Blunt v. United States, 244 F.2d 355, 365-66 (D.C. Cir. 1957) (conviction reversed where trial court took on role of prosecutor by extensive interrogation of defense witnesses and improper comments). Impeachment of a defendant is the job of the prosecutor and not the court. If the trial court considered xxxxxxxx's testimony to be inconsistent with the answers he gave on cross-examination, the court should have left it to the prosecutor on recross-examination to impeach the defendant. See Jackson, 329 F.2d at 894 ("the interrogation of witnesses is ordinarily best left to counsel, who presumably have an intimate familiarity with the case.") The court's improper impeachment of xxxxxxxx quite likely gave the jury an impression that the judge and the prosecutor were working toward the common goal of convicting the defendant.

In all, the trial judge intervened 3 times during xxxxxxxx's very brief redirect testimony, which comprises a mere 6 pages of the trial transcript. When xxxxxxxx tried to clarify his testimony regarding the use of the styrofoam cup during the drug transaction, the court asked another series of questions:

THE COURT: Why did you throw the cup out of the window?



THE WITNESS: I didn't throw nothing out the window anyway.



THE COURT: You didn't throw a cup out of the window?



THE WITNESS: No.



THE COURT: You had the cup, though?



THE WITNESS: Yes.



THE COURT: What did you do with the cup?



THE WITNESS: I was drinking.



THE COURT: And then what?



THE WITNESS: I forgot.



THE COURT: I see.



(9/16/94 Tr. 82)



The court's questions concerning the cup were unnecessary because xxxxxxxx's cross-examination testimony that he had a cup with him during the drug transaction but that the drugs were in his pocket and not in the cup (9/16/94 Tr. 55-57), needed no clarification by the court. Although xxxxxxxx's testimony on this point clearly contradicted xxxxxxx's version, it was the jury's province to resolve that contradiction. Moreover, because xxxxxxxx relied on an entrapment defense and admitted that he distributed the drugs, the question of whether he carried the drugs in the cup or in his pocket was immaterial. Through its repeated interruption of xxxxxxxx's redirect testimony, the court effectively undermined defense counsel's efforts to rehabilitate the defendant and prejudiced the defense.

E. Conclusion

The district court's excessive interrogation of Mr. xxxxxxxx targeted his credibility and challenged his testimony in a way that must have caused the jury to doubt the defendant's veracity. By assuming the mantle of the prosecutor, the trial judge lost his appearance of neutrality and eviscerated the overall fairness of the trial. The court's failure to maintain an appearance of impartiality was especially significant in this case because the entrapment defense virtually hinged on the jury's assessment of Mr. xxxxxxxx's credibility. The jury's impression that the trial judge disbelieved xxxxxxxx's testimony on critical points, must have affected its deliberations. See United States v. Mazzilli, 848 F.2d 384, 388 (2d Cir. 1988) ("the jury cannot be regarded as having freely come to its own conclusions about the defendant's credibility when the court has already indicated, directly or indirectly, that it disbelieves his testimony.")

If Mr. xxxxxxxx was to have any chance of prevailing on the strength of his entrapment defense, he had to persuade the jury of his own credibility and the believability of his testimony. By challenging that testimony in an aggressive and prosecutorial manner, the trial judge thwarted the defense efforts. Under these circumstances, the standard instructions that it was for the jury to find the facts and determine credibility and that nothing the court did was to give the jury any indication as to how it should make its decision (9/16/94 Tr. 118, 121-22), could not have mitigated adequately the harm caused by the court's vigorous and extensive interrogation. See Quercia v. United States, 53 S. Ct. 698, 700 (1953) (trial court's repudiation of defendant's testimony was not cured by instruction that judge's opinion of evidence was not binding on jury); Blunt v. United States, 244 F.2d at 366 (judge's improper interrogation of defense witnesses not cured by standard instruction that it was for jury to find facts and was not bound by court's comments). Because the district court's prejudicial questioning denied Mr. xxxxxxxx the fair trial to which he is entitled, his conviction must be reversed.









II. THE COMBINED EFFECT OF THE COURT'S INSTRUCTIONS EXPRESSING THAT THE JURY HAD TO RESOLVE ALL FACTUAL AND CREDIBILITY CONFLICTS IN ORDER TO REACH A VERDICT, ESTABLISHING A HIERARCHY BETWEEN THE ENTRAPMENT DEFENSE ELEMENTS AND THE ELEMENTS OF THE CHARGED OFFENSES, AND DE-EMPHASIZING AN ESSENTIAL FACTUAL ELEMENT OF THE OFFENSES, DEPRIVED MR. xxxxxxxx OF A VERDICT OF GUILT BEYOND A REASONABLE DOUBT



The district court several committed instructional errors in charging the jury in this case. First, by casting the jury's ultimate determination of whether to convict or acquit Mr. xxxxxxxx in terms of which witnesses -- the prosecution or the defense -- the jury believed were "telling the truth" (9/16/94 Tr. 121), the court diluted the constitutional requirement of proof beyond a reasonable doubt. The court compounded this error by instructing the jury that the elements of Mr. xxxxxxxx's entrapment defense were "in a way more important" than the essential elements of the charged offenses. (9/16/94 Tr. 127) This instruction was prejudicial in that it reasonably could have confused the jury as to whether the government had to prove all of the elements of the charged offenses beyond a reasonable doubt in light of the fact that Mr. xxxxxxxx raised an entrapment defense. Taken in conjunction with the first instructional error, this instruction further diluted the government's burden of proof. Finally the court improperly de-emphasized an essential factual element of the charged offenses by instructing it that the substance Mr. xxxxxxxx allegedly distributed was "pretty clearly" crack cocaine. (9/16/94 Tr. 125-26) Because the cumulative effect of the challenged instructions was to confuse and mislead the jury as to the government's burden of proof, Mr. xxxxxxxx' conviction must be reversed.

A. Standard of Review

Because defense counsel failed to object to the challenged instructions, this Court reviews them under the plain error standard, which requires a determination of (1) whether there is unwaived legal error, (2) whether the error is "plain" or "obvious" under current law, and (3) whether the error was prejudicial. United States v. Merlos, 8 F.3d 48, 50 (D.C. Cir. 1993) (citing United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770, 1777-78 (1993)), cert. denied, 114 S. Ct. 1635 (1994). To the extent that the district court's erroneous instructions diluted the reasonable doubt standard, this Court need not inquire into the prejudice prong of the plain error test. See United States v. Rawlings, 73 F.3d 1145, 1148 n.3 (D.C. Cir. 1996); Merlos, 8 F.3d at 50-51.

B. The Court Erroneously Instructed the Jury That it Was to Decide the Case by Making a Credibility Choice Between the Prosecution And Defense Witnesses


In its charge to the jury, the court focused on the jury's function to resolve factual issues and instructed the jury that it "ha[d] to decide what happened on December 8th of 1992 [the date of the drug transaction]: who did what to whom, who said what to whom, was anybody threatened.. . . It is your decision to make as to what really happened." (9/16/94 Tr. 118) In his credibility instruction, the judge told the jurors that they had to resolve conflicts in the testimony:

Now, from lots of things I have said, there is the question of credibility, belief, who is to be believed. In many, many trials that we have heard -- that I have heard -- there is a conflict between some witnesses and other witnesses, and somebody has to decide who is telling the truth; that is you, the jury.

(9/16/94 Tr. 121) (emphasis added).

In United States v. Rawlings, 73 F.3d 1145, 1148-49 (D.C. Cir. 1996), this Court struck down a similar instruction given by the same district judge. In that case, the judge instructed the jurors that they "had to decide what really happened" and that they "ha[d] to make a decision who is to be believed.. . . Which side, which witnesses are telling the truth." Id. at 1147-48. In reversing Rawlings's conviction, the Court held that the trial judge's emphasis that the jury had to resolve factual and credibility disputes was erroneous:

Equally important, the jurors were not, as the court erroneously instructed, required to decide whom to believe and what actually occurred. They had to determine only whether the Government proved what it alleged had happened beyond a reasonable doubt. The court's emphasis on resolving the factual dispute was plainly inconsistent with its otherwise adequate burden of proof and reasonable doubt instructions.

Id. at 1148-49. The Court concluded that the combined effect of the improper credibility instruction and erroneous instruction on the elements of the charged offenses constituted reversible error. Id. at 1149.

The Rawlings decision controls this case. The erroneous portions of the instructions to Mr. xxxxxxxx's jury virtually were the same as those struck down by the Rawlings court. As in Rawlings, the judge here instructed the jury that it was required to decide "what really happened" and "who [was] telling the truth." (9/16/94 Tr. 118, 121) Also as in Rawlings, the testimony in this case "was not a typical courtroom swearing contest." 73 F.3d at 1149. In fact, the evidence below in this case was less disputed than the testimony in Rawlings.

As part of his entrapment defense, Mr. xxxxxxxx admitted that he participated in the drug transaction with the undercover agent. (9/16/94 Tr. 49-53, 56-57, 80) Therefore, the real dispute was whether Mr. xxxxxxxx intended to distribute the drugs to the undercover agent or whether the informant entrapped xxxxxxxx into committing the drug offenses. Because the government had to prove beyond a reasonable doubt that xxxxxxxx intended to distribute the drugs and that he was predisposed to do so, notwithstanding any inducement by the informant, the jury could have concluded that even though the defense evidence was arguably less believable than that of the prosecution, xxxxxxxx's testimony -- combined with the testimony of hostile witness xxxxxx, the informant, -- left the jury with a reasonable doubt as to guilt. In fact, the jury could have believed all of the government witnesses and still have returned a verdict of not guilty if it found that the informant had induced xxxxxxxx into committing the offenses and that the government had failed to prove beyond a reasonable doubt that xxxxxxxx was predisposed to distribute the drugs. Thus, as in Rawlings, the court's instructions requiring the jury to decide whom to believe or what actually occurred averted the jurors' attention from their real task, which was to determine whether the prosecution proved the charged offenses beyond a reasonable doubt. See also United States v. Oquendo, 490 F.2d 161, 164-66 (5th Cir. 1974) (district court committed reversible error by charging jury that ultimate decision in case depended upon credibility choice between informant and defendant on issue of entrapment).

The Supreme Court has been insistent on the "vital role" of the reasonable doubt instruction and this Court also "ha[s] been insistent that the charge not be weakened." United States v. Merlos, 984 F.2d 1239, 1241 (D.C. Cir. 1993) (citing Cage v. Louisiana, 498 U.S. 39, 40 (1990). A court's jury instructions violate due process if there is a "reasonable likelihood" that the jury understood the instructions to allow conviction based on less than proof beyond a reasonable doubt. Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994). In the instant case, the court's erroneous focus on the false credibility choice and on the resolution of factual disputes distorted the burden of proof by suggesting incorrectly that the jury had to make a credibility determination and a finding of historical fact. See Commentary to Redbook Instruction 2.11 (Credibility of Witnesses) (explaining deletion of instruction describing jury's function as "to resolve [any] conflict and to determine where the truth lies"):

[T]hat language suggested that the jury was obligated to make an ultimate determination of historical truth. In fact, the jury is only obliged to determine whether the evidence . . . establishes guilt beyond a reasonable doubt. The jury is free to conclude that the government has failed to meet its burden of proof without the jury ever "determin[ing] where the truth lies." Nor need the jury "resolve conflict[s]" in the testimony; the jury is free to leave any such conflict unresolved, and may indeed find that the very existence of such a conflict, resolvable or not, diminished the strength of the government's case.

Redbook at p. 82. See also United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5th Cir.) (instruction that jury's sole interest is to "seek the truth from the evidence in this case" would be error if used in explaining concept of proof beyond a reasonable doubt; suggesting that trial courts may wish to delete it from their instructions altogether), cert. denied, 114 S. Ct. 2138, (1994); United States v. Pine, 609 F.2d 106, 108 (3d Cir. 1979) (instruction that "[t]he basic question is whether the Government's witnesses are telling the truth or whether the defendants and their witnesses are telling the truth" improperly diluted government's burden); United States v. Stanfield, 521 F.2d 1122, 1125-26 (9th Cir. 1975) (conviction reversed where court's opening remarks "put the issue in terms of which set of facts the jury would believe and overemphasized that the jury would be required from the two theories of the case 'which is right and which is wrong.'"); United States v. Williams, 473 F.2d 507, 511 (5th Cir. 1973) (reversing where court's instructions "erroneously narrowed the credibility issue to an all or nothing proposition").

This Court's decision in United States v. Spencer, 25 F.3d 1105, 1110 (D.C. Cir. 1994), is not to the contrary. In that case, the instruction given by the same district judge as in this case to the effect that the jury must decide which side was lying merely repeated the point that the parties themselves had argued to the jury. Moreover, the issue raised and decided in Spencer was whether the court's instruction shifted the burden of proof to the defendant and not whether the instruction had diluted the government's burden of proof beyond a reasonable doubt -- the issue raised here by Mr. xxxxxxxx and decided by the Rawlings court. Given the clear inconsistencies in the testimony and the defense's repeated argument that the police were lying, combined with the defendant's failure to object, the Spencer court held that the instruction there did not constitute plain error. Id. at 1110.

As in Rawlings, the district court's standard instructions in this case on burden of proof and reasonable doubt cannot save the instructions as a whole. The fact that instructions are accurate in part does not render the instructions as a whole constitutional if it is "reasonably likely" that the jury relied to some degree on the faulty portion of the instructions. Merlos, 984 F.2d at 1242 (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)). The instructions requiring Mr. xxxxxxxx's jury to find the historical truth were so fundamentally inconsistent with the actual standard of proof that the jury could not possibly reconcile the court's confusing instructions. See Rawlings, 73 F.3d at 1149 (court's misleading instructions require reversal under plain error standard despite "its otherwise adequate burden of proof and reasonable doubt instructions"); United States v. Rhone, 864 F.2d 832, 837 (D.C. Cir. 1989) (reversing where "[a]t the very least, the instruction confused the jury on the very central issue of intent"); United States v. Alston, 551 F.2d 315, 319 (D.C. Cir. 1976) ("although the district court properly reminded the jury on several occasions of the Government's burden of proof, we are unwilling to presume that the ambiguity created by [other misleading instructions] was thus dissipated"). The jury in this case was especially likely to be drawn to the court's faulty instructions, which because of their "nonlegal character might have been more easily comprehended and remembered than the standard instruction." United States v. Pinkney, 551 F.2d 1241, 1245 (D.C. Cir. 1976).

The instructional error in this case was "plain" or "obvious" in that the faulty instructions were clearly inconsistent with the standard of proof that has been settled law since In re Winship, 397 U.S. 358, 364 (1970) (Due Process Clause requires government to prove beyond reasonable doubt every element of charged offenses). Moreover, the Rawlings court held that the similar instructions in that case rose to the level of plain error and the trial there took place some 14 months before Mr. xxxxxxxx's trial. Finally, this Court has made clear that prejudice is presumed where the standard of proof has been distorted. Rawlings, 73 F.3d at 1148 n.3. For these reasons, the district court's erroneous instructions diluting the government's burden of proof constitute plain error and require a new trial.

C. The Court Erroneously Instructed the Jury That the Identity of the Controlled Substance Was "Pretty Clear" from the Evidence and That The Elements of the Entrapment Defense Were "More Important" than the Elements of the Charged Offenses

As in Rawlings, the district court's misleading instructions on the elements of the offenses with which Mr. xxxxxxxx was charged exacerbated the confusion caused by its earlier instructions on the jury's duty to resolve credibility and factual disputes. While charging the jury on the elements of the offenses, the judge instructed that cocaine base is another term for crack cocaine and that they are controlled substances. (9/16/94 Tr. 125) The court continued:

As to whether this material in question that is in these envelopes is cocaine base or crack, you must decide that. The only evidence that I recall that we have on that is the evidence from the chemist, and there was no contradiction of that. While it is your decision to make, and while I said I probably won't say much about the facts or the evidence, it is pretty clear that this stuff is crack, cocaine base, but you must make that decision.(9/16/94 Tr. 125-126)

This Court has held that the identity of a controlled substance is an element of drug offenses, such as distribution of cocaine base. United States v. Michael, 10 F.3d 838, 839, 842 (D.C. Cir. 1993). Thus, it was for the jury, not the court to decide whether the substance distributed by Mr. xxxxxxxx was cocaine base, as charged in the indictment. By instructing the jury that it was "pretty clear" that the substance was cocaine base (9/16/94 Tr. 125), the court appeared to de-emphasize this element, just as it had purported to establish a hierarchy among the elements in Rawlings. See 73 F.3d at 1148-49. Because all elements require proof beyond a reasonable doubt, the Rawlings court held that the instruction given there was erroneous. Id. at 1149.

After completing its charge on the elements, the judge declared:

Now, we get to a matter which is in a way more important than what I have said to you, although all these things that I said to you are matters you should consider and must consider. But as I understand it, and my view -- I say, again, what I understand about the facts is not binding on you -- but as I understand it, there isn't much contest about all the things I have said about these two offenses because the principal defense that the defendant has set up in this case -- or has alleged in this case is entrapment. I will now talk about entrapment because that is the thing that the two parties have mostly disputed about, and that is the matter to be considered by you as an important matter in this trial.(9/16/94 Tr. 127)

The judge's remark that the elements of the entrapment defense were "more important" than the elements of the charged offenses is analogous to the erroneous charge in Rawlings which implied that there was a hierarchy among the elements. Because a defendant who raises an entrapment defense also can deny one or more elements of the crime, an entrapment defense does not obviate the government's burden to prove all of the elements of the charged offenses beyond a reasonable doubt. See Matthews v. United States, 485 U.S. 58, 61 (1988) (defendant entitled to entrapment instruction even if he denies elements of crime). Although Mr. xxxxxxxx did not deny vigorously any particular elements of the offenses, and admitted that the requisite acts occurred, the government nevertheless had to prove beyond a reasonable doubt that he had the requisite intent, as well as all of the other elements of the charged offenses. The court's instruction that the entrapment defense was "more important" and that there wasn't "much contest" about the essential elements of the offenses likely misled the jury concerning the government's burden of proving each element of the offenses beyond a reasonable doubt.

When viewed together, the erroneous instructions create a reasonable likelihood that the jury was confused about the applicable standard of proof. The combined effect of the erroneous instructions was to dilute the government's burden of proof and to deprive Mr. xxxxxxxx of a verdict of guilt beyond a reasonable doubt. For these reasons, Mr. xxxxxxxx's conviction must be reversed.

III. THE DISTRICT COURT ERRED IN DENYING MR. xxxxxxxx A REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY UNDER U.S.S.G. 3E.1.1 ON THE GROUNDS THAT HE RELIED ON AN ENTRAPMENT DEFENSE AT TRIAL, AND IN ADJUSTING HIS OFFENSE LEVEL UPWARD FOR OBSTRUCTION OF JUSTICE UNDER U.S.S.G. 3C1.1, ON THE GROUNDS THAT HE TESTIFIED FALSELY AT TRIAL

A. Standard of Review

In reviewing challenges to a district court's application of the Sentencing Guidelines, this Court reviews purely legal questions de novo; factual findings are reviewed for clear error; and due deference is given to the district court's application of the guidelines to the facts. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). In this case, the question of whether reliance on an entrapment defense precludes a reduction for acceptance of responsibility is a legal question, while the issue concerning the upward adjustment for obstruction of justice for perjury is a question of the application of the guidelines to the facts.

B. The Court Erroneously Denied an Acceptance Of Responsibility Reduction Because Mr. xxxxxxxx Relied on an Entrapment Defense

In his trial testimony, Mr. xxxxxxxx admitted that he distributed the drugs to the undercover agent, as charged in the indictment. (9/16/94 Tr. 50-53) However, xxxxxxxx explained that the confidential informant induced him into committing the offenses by threatening him. (9/16/94 Tr. 47-49) At sentencing, Mr. xxxxxxxx argued that he was entitled to a two-level reduction in his offense level for acceptance of responsibility under U.S.S.G. 3E1.1 because he had admitted to distributing drugs to the undercover agent. (12/1/94 Tr. 3-5) The PSR did not recommend the reduction because xxxxxxxx "state[d] that he was entrapped . . .." (PSR at 4)

At sentencing, the following exchange occurred:

MS. HENDERSON: The presentence report writer did (DEFENSE COUNSEL) not give [the defendant] the two points for acceptance of responsibility.

I think even though Mr. xxxxxxxx went to trial in this matter -- and in fact

he testified -- I think that he

accepted responsibility, and I don't

think that his testimony was any

different to that effect. He admitted

to giving the undercover officer the

drugs.



THE COURT: He said he was entrapped.



MS. HENDERSON: Well, your Honor, --



THE COURT: I don't regard that as --



MS. HENDERSON: Your Honor, that's --



THE COURT: Wait a minute. I don't regard that as acceptance of responsibility.

MS. HENDERSON: Your Honor, I don't think that because a person legitimately claims a legitimate defense, that in claiming that, that he somehow is not accepting responsibility for what he did. My understanding of what he said was he explained why he did it. He didn't say he didn't do it. He said, I did it. That's accepting responsibility. That's a knowing act of what he did.

He only explained to the court why he did it. I don't think that going forward with a legitimate defense is an indication indicating that he does not accept responsibility.

 

THE COURT: That is the most absurd argument I have ever heard.  (12/1/94 Tr. 3-4)

Joining several other circuits that have decided this issue, this Court recently held that reliance on an entrapment defense does not automatically bar a defendant from receiving an acceptance of responsibility reduction. United States v. Layeni,90 F.3d 514, 525 (D.C. Cir. 1996). See also United States v. Davis, 36 F.3d 1424, 1435-36 (9th Cir. 1994); United States v. Corral-Ibarra, 25 F.3d 430, 439-440 (7th Cir. 1994); United States v. Fleener, 900 F.2d 914, 918-19 (6th Cir. 1990). Under Layeni and the other cited authorities, the district court cannot deny an acceptance of responsibility reduction on the grounds that the defendant raised an entrapment defense without determining whether the particular facts and circumstances warrant a reduction.

In Layeni, this Court upheld the district court's denial of the reduction because the sentencing judge "properly used Layeni's entrapment argument to find that he had not accepted responsibility." 90 F.3d at 525. In contrast, the district court in the instant case rejected out-of-hand the reduction of acceptance of responsibility on the grounds that Mr. xxxxxxxx raised an entrapment defense at trial. Therefore, the court's denial of the reduction was erroneous and Mr. xxxxxxxx's sentence should be vacated and remanded for resentencing.

C. The Court's Perjury Enhancement Was Erroneous

The district court increased Mr. xxxxxxxx's offense level by 2 under U.S.S.G. 3C1.1 for obstruction of justice by giving false testimony at trial. (12/1/94 Tr. 14) The court found that xxxxxxxx perjured himself on ". . . at least two matters, one having to do with the money -- on whom [sic] gave whom the money, and subsequently his saying that he was unable to recall that he ever handled the money. The second element, the second finding of perjury is all the matters having to do with his voice on the tape and the cup -- the cup being visible; and partly he says it was his voice, and then it wasn't his voice on the tape . . .." (12/1/94 Tr. 14)

To constitute obstruction of justice under 3C1.1, false testimony must meet the definition of perjury under the federal criminal perjury statute, 18 U.S.C. 1621. United States v. Dunnigan, 507 U.S. 87 (1993). Thus, perjury is defined as "giv[ing] false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Id. at 94 (emphasis added). This definition recognizes that in some instances a defendant may give inaccurate testimony as the result of confusion, mistake, or faulty memory. Id. at 95. Moreover, the sentencing judge should evaluate the defendant's testimony "in a light most favorable to the defendant." 3C1.1 Application Note 1.

In the instant case, the court's perjury enhancement was erroneous for two reasons. First, Mr. xxxxxxxx did not commit perjury because his purportedly false testimony regarding the money exchange, voice identification, and the styrofoam cup did not concern a material matter "designed to substantially affect the outcome of the case . . .." Dunnigan, 507 U.S. at 95. In this regard, the commentary to 3C1.1 provides that a "material" statement is one which, "if believed, would tend to influence or affect the issue on determination." 3C1.1, Commentary (Note 3). See United States v. Sobin, 56 F.3d 1423, 1428-29 (D.C. Cir.) (false identification of fixed residence at bond hearing is material false declaration supporting 3C1.1 enhancement), cert. denied, 116 S. Ct. 348 (1995); United States v. Smaw, 993 F.2d 902, 904 (D.C. Cir. 1992) (noting definition of materiality in Guidelines Commentary).

In light of Mr. xxxxxxxx's entrapment defense, his testimony regarding the exchange of money, the identification of his voice on the tape, and the styrofoam cup could not have been intended to substantially affect the jury's verdict and therefore did not concern a material matter. Because Mr. xxxxxxxx admitted that he distributed the drugs as charged in the indictment, his somewhat equivocal testimony regarding certain aspects of the transaction itself could not have affected the outcome of his trial. Whether Mr. xxxxxxxx handled the money exchanged for the drugs, recognized his voice on the tape, or carried the drugs in a styrofoam cup were irrelevant to his guilt or innocence because he admitted to committing the requisite acts constituting the charged offenses. If the court had found that xxxxxxxx's testimony concerning his inducement or predisposition to commit the offenses was false, that false testimony would have concerned a material matter and formed a proper basis for a perjury enhancement. Compare United States v. Tracy, 36 F.3d 199, 202 (1st Cir.) (perjury enhancement upheld where district court found defendant who raised entrapment defense had lied about informant's threats that induced defendant to commit crime), cert. denied, 115 S. Ct. 609 (1994). However, xxxxxxxx's allegedly false testimony did not amount to perjury because the matters articulated by the sentencing court were not material under 3C1.1. Therefore, the district court erred in enhancing Mr. xxxxxxxx's sentence under that provision.

Second, the district court erred in finding by clear and convincing evidence that Mr. xxxxxxxx's testimony constituted perjury under 3C1.1. As the Supreme Court made clear in Dunnigan, the fact that a defendant's testimony is false is insufficient to warrant an obstruction of justice enhancement since false testimony may be the result of such factors as "confusion, mistake or faulty memory." 507 U.S. at 95. As to the exchange of money for drugs, xxxxxxxx clearly testified on direct examination that after the exchange he had the money and gave it to the informant. (9/16/94 Tr. 52) On cross-examination, xxxxxxxx testified that he could not recall when he had the money and explained that the prosecutor's questions were "getting [him] confused a little bit." (9/16/94 Tr. 72) On redirect, xxxxxxxx reaffirmed that he received the money from the undercover agent. (9/16/94 Tr. 80)

As to the voice identification, xxxxxxxx first testified on cross-examination that he thought it was his voice on the tape. (9/16/94 Tr. 66) He later testified that the voice on the tape did not sound like him. (9/16/94 Tr. 68-70) On redirect, xxxxxxxx explained that he had never heard his voice on tape before and that he had not realized he sounded like the voice on the tape. (9/16/94 Tr. 77-78)

Finally, as to the styrofoam cup, xxxxxxxx testified on cross-examination that he had the cup during the drug transaction but that the drugs were located in his pocket rather than inside the cup. (9/16/94 Tr. 57) He also testified that he did not recall saying that he carried drugs in the cup so he could throw the cup away if approached by the police. (9/16/94 Tr. 57) When the district judge asked xxxxxxxx on redirect examination whether he had the cup, xxxxxxxx said that he did have the cup and that he did not throw it or anything else out of the car window during the drug transaction. (9/16/94 Tr. 82)

Taking xxxxxxxx's testimony as a whole, it is clear that his testimony concerning these matters, if false at all, was likely the result of "confusion, mistake or faulty memory." xxxxxxxx admitted to receiving the money during the drug exchange, "think[ing]" that it was his voice on the tape, and possessing the styrofoam cup during the drug transaction. xxxxxxxx clearly had difficulty recalling the details of the transaction itself. He also became confused by some of the prosecutor's questions on cross-examination. Under these circumstances, the court erred in concluding by clear and convincing evidence that xxxxxxxx's testimony was perjurious. Because the court should not have enhanced Mr. xxxxxxxx's sentence under 3C1.1, the sentence should be vacated and the case remanded for resentencing.

CONCLUSION

For the foregoing reasons, Mr. xxxxxxxx's conviction should be reversed and his case remanded for a new trial. Failing that, Mr. xxxxxxxx's sentence should be vacated and his case remanded for resentencing.



Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER









________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

On Behalf of Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500







CERTIFICATE OF LENGTH



I hereby certify that the foregoing brief for appellant, Keith xxxxxxxx, does not exceed the number of words permitted pursuant to

D. C. Circuit Rule 28(d).



_________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender









CERTIFICATE OF SERVICE



I HEREBY CERTIFY that on September 11, 1996, I have served by hand two copies of the foregoing Brief for Appellant Keith xxxxxxxx and one copy of the accompanying Appendix on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.



___________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender

1. "A." refers to the appendix filed with this brief. Certain portions of the record not included in the appendix are cited in this brief. These include trial transcript excerpts (e.g., "9/14/94 Tr. ") and trial exhibits (e.g., "Gov. Ex. ") .

2. Mr. xxxxxxxx's PSR is filed under seal as part of the appendix in this case.