ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





NO. xxxxxxxxxx





BRIEF OF APPELLANT











UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxx, Defendant-Appellant.









APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA















A. J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant











District Court

Cr. No. xxxxxxxxxxxxxx

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES





Pursuant to D.C. Circuit Rule 28(a)(1), appellant hereby states as follows:

A. Parties and Amici: The parties below and in this court are the defendant-appellant, Rudoph xxxxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.

B. Rulings Under Review: In this appeal defendant challenges the decision of the district court, the Honorable Norma Holloway Johnson, admitting expert testimony. There is no official citation to any of these events.

C. Related Cases: This case has not been before this court or any other court previously.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

ISSUE PRESENTED iii

JURISDICTION 1

STATEMENT OF THE CASE 1



FACTS 2



A. Introduction 2



B. The Government's Case 3



C. The Defense Case 10



SUMMARY OF ARGUMENT 12



DISCUSSION:



OFFICER STROUD'S OPINION TESTIMONY THAT THE PERSON WHO POSSESSED THE DRUGS SEIZED IN THIS CASE DID SO WITH THE INTENT TO DISTRIBUTE THEM VIOLATED RULE 704(b) OF THE FEDERAL RULES OF EVIDIENCE 13



A. Standard of Review 13



B. Discussion 13



CONCLUSION 18



CERTIFICATE AS TO LENGTH OF BRIEF 18



CERTIFICATE OF SERVICE 18



TABLE OF AUTHORITIES



CASES



*United States v. Boney,

977 F.2d 624 (D.C. Cir. 1992) . . . . . . . . . . . . . . 14



United States v. Clarke,

24 F.3d 257 (D.C. Cir. 1994) 14, 15



United States v. Dunn,

846 F.2d 761 (D.C. Cir. 1988) . . . . . . . . . . . . . . 14



*United States v. Mitchell,

996 F.2d 419 (D.C. Cir. 1993) 13, 14, 15, 16



United States v. Olano,

113 S. Ct. 1770 (1993) . . . . . . . . . . . . . . . . . 16



United States v. Rhodes,

886 F.2d 375 (D.C. Cir. 1985) . . . . . . . . . . . . . . 13



United States v. Simpson,

992 F.2d 1224 (D.C. Cir.),

cert. denied, 114 S. Ct. 286 (1993) 13



*United States v. xxxxxx,

980 F.2d 1463 (D.C. Cir. 1992) 14



STATUTES AND FEDERAL RULES



18 U.S.C. 3231 1



21 U.S.C. 841(a)(1) 2



21 U.S.C. 841(b)(1)(C) 2



21 U.S.C. 841(b)(1)(B)(iii) 2



21 U.S.C. 844(a) 2



28 U.S.C. 1291 1



Fed. R. App. P. 4(b) 1



Fed. R. Crim. P. 52(b) 13



Fed. R. Crim. P. 704(b) 13

ISSUE PRESENTED



WHETHER IT WAS PLAIN ERROR TO ALLOW A GOVERNMENT EXPERT WITNESS TO GIVE AN OPINION REGARDING THE DEFENANT'S STATE OF MIND.





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





NO. xxxxxxxxxx



BRIEF OF APPELLANT







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



RUDOLPH xxxxxxx, Defendant-Appellant.







APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. 3231. The notice of appeal having been filed within the ten-day period of Fed.R.App.P. 4(b), this court has jurisdiction pursuant to 28 U.S.C. 1291.



STATEMENT OF THE CASE

 

On August 6, 1992, an indictment was filed charging the defendant-appellant, Rudolph xxxxxxx, and a codefendant, Antoinette xxxxxxx, in three counts. (APP 1). (1)

Count One charged defendant alone with distribution of cocaine base, 21 U.S.C. 841(a)(1) & 841(b)(1)(C). Count Two charged defendant alone with possession with intent to distribute five grams or more of cocaine base, 21 U.S.C. 841(a)(1) & 841(b)(1)(B)(iii). Count Three charged xxxxxx alone with simple possession of cocaine base, 21 U.S.C.  844(a). The charges allegedly occurred on July 9, 1992. Defendant went to trial alone on the first two counts. The trial began on November 2, 1992, and concluded on November 4, 1992. On November 5, 1992, the jury found defendant guilty of both counts. On April 5, 1993, the district court sentenced defendant, as a career offender under the sentencing guidelines, to a thirty-year term of imprisonment on each count, to run concurrently, to be followed by concurrent six and eight year periods of supervised release, and a $100 special assessment ($50 on each count) (APP 39).



FACTS

A. Introduction

The case arose from police observations of defendant in the 3400 block of 11th Street, N.W. Two officers were at opposite ends of the block in observation posts. They allegedly saw defendant engage in a sale of crack to Ms. xxxxxx. After defendant was arrested, a quantity of crack was found in his car, which was parked on the street. More crack was found on a patio in back of a barbershop in which defendant was arrested. Defendant's apartment was also searched, and a number of ziplock bags were seized.

The two police officers were the primary government witnesses. Defendant presented two witnesses, who refuted the testimony of the police officers.

B. The Government's Case

The two police officers who were watching the 3400 block of 11th Street on July 9, 1992, were Michael Smith and John Marsh. They were in unmarked vehicles, and dressed in plain clothes (11/3/92: 41). The observation began about 7:30 a.m. (11/3/92: 41). Smith was in a car parked on the northwest corner of 11th and Monroe Streets (11/3/92: 43) Marsh was in a surveillance van parked at the south, or opposite, end of the block (11/3/92: 63).

Smith noticed the defendant about five minutes after arriving (11/3/92: 44). Smith was 70 to 80 feet away (11/3/92: 53). The defendant was on the east side of 11th Street, in front of a laundromat (11/3/92: 44). The defendant met with people three separate times (11/3/92: 44). When they met, they would move into the doorway of the laundromat for a few seconds, and then the other person would leave (11/3/92: 44). Smith suspected defendant was selling drugs, although he could not see any transactions (11/3/92: 44, 55). After meeting with the first two people in front of the laundromat, defendant went to a car parked on the same side of the street and got in the passenger side (11/3/92: 44). He leaned down and motioned with his hands in the glove box area, but Smith could not see anything in defendant's hands while he was in the car (11/3/92: 44, 47, 55). Defendant then went back to the front of the laundromat and met with the third person (11/3/92: 45).

Defendant went back to the car and again went into the glove box area (11/3/92: 46). After getting out of the car, he crossed the street, and went to the area in front of a barbershop (11/3/92: 46). Defendant met separately with four people while in front of the barbershop (11/3/92: 48). These meetings were similar to those that took place at the laundromat, in that defendant and the people went into the barbershop doorway, and the people came out and left in a few seconds (11/3/92: 48). Smith could not see what happened inside the barbershop (11/3/92: 48).

Defendant was arrested at 8:25 a.m., a little less than an hour after the officers arrived (11/3/92: 48). During that time Smith never lost sight of the car, and no one other than defendant got in the car (11/3/92: 49). Defendant had been on the laundromat side of the street about thirty minutes, and the rest of the time on the barbershop side of the street (11/3/92: 83).

Marsh was in a surveillance van, which has a kind of periscope that allowed him to look out over the top of the van (11/3/92: 65). He also used binoculars to look through the periscope (11/3/92: 66).

Marsh gave essentially the same description of defendant's actions as the one given by Smith with respect to the events at the car and in front of the barbershop and laundromat. Marsh also believed defendant was engaging in narcotics transactions (11/3/92: 69). Marsh described defendant's appearance as unusual in the sense that he was wearing an aqua-colored coordinated tank top and shorts and his skin was very dark and shiny (11/3/92: 74).

Marsh also described the events that immediately preceded defendant's arrest. The codefendant, Antoinette xxxxxx, was sitting on the back of a car parked in the street in front of the barbershop (11/3/92: 76). She and defendant, who was near the entryway to the barbershop, exchanged hand signals, each indicating the other person should come over to them (11/3/92: 77). Defendant eventually went over to the car (11/3/92: 77). Marsh observed defendant pass a small object, which had a bluish tint to it, to xxxxxx, who gave him some money she had been holding in her hand (11/3/92: 77). Marsh saw this through the periscope while using the binoculars, from a distance of 75 to 125 feet (11/3/92: 78).

At that point Marsh radioed to the arrest team, which was nearby, telling them what he had seen and giving a description of defendant (11/3/92: 78). The arrest team consisted of Sergeant Russo and Officer Dowd (11/3/92: 78). Marsh left his car and went after xxxxxx (11/3/92: 79). As Russo and Dowd pulled up, Marsh told them defendant had gone into the barbershop (11/3/92: 79). All this happened within 30 seconds of the transaction (11/3/92: 79).

As Marsh followed xxxxxx, and got within five feet of her, she threw down a blue ziplock bag, which landed next to the curb (11/3/92: 79). The bag contained crack (11/3/92: 80). Shortly thereafter, Dowd and Russo came out of the barbershop with defendant, who was dressed exactly as described by Marsh (11/3/92: 80).

Dowd went into the barbershop after receiving Marsh's description. One barber was sitting in a chair, another was cutting a man's hair, and about four customers were sitting in chairs waiting for a haircut (11/3/92: 113). No one inside matched the description Marsh had given (11/3/92: 113). Dowd looked in the bathroom in the back of the shop, which was empty, and asked the barber if anyone was out back (11/3/92: 114). As he was asking, defendant, who matched the description given by Marsh, walked from the rear patio into the shop and was arrested (11/3/92: 114-115). Defendant had a pager in the waistband of his shorts, $201 in the left pocket of the shorts and $112 in the right pocket (11/3/92: 125, 127).

The back outside patio of the barbershop was an enclosed area (11/3/92: 116). After defendant was arrested, Dowd searched it (11/3/92: 116). He found $8 rolled and crumpled up lying on the ground, and six little blue ziplocks containing crack at the corner of the patio lying just outside the fence (11/3/92: 116, 118, 120). When defendant was arrested he had keys in his hand, which included keys to the car into which defendant had gone (11/3/92: 92, 118). Marsh searched the car and in the glove box found a brown paper bag, in which were 291 small ziplocks of crack (11/3/92: 91). Also in the glove box were a bill of sale and the registration for the car, both in defendant's name, and a wallet with various pieces of identification, all in defendant's name, including his driver's license (11/3/92: 93-94).

The license listed an address of 1020 Monroe Street, where defendant admitted he lived in apartment number 27 (11/3/92: 94, 99). The police searched the apartment later that day (11/3/92: 129). On top of a nightstand, the police found numerous personal papers of the defendant, as well as a large ziplock, in which were a number of smaller clear blue ziplocks (11/3/92: 134). Also found was $537, in bills no larger than a $20 bill, in a pocket of a man's jean jacket hanging in the closet (11/3/92: 132, 138).

No fingerprints were taken from the ziplocks or the brown paper bag. A police evidence technician testified that he had never been able to obtain fingerprints from small ziplock bags in over one hundred attempts (11/4/92: 43). To get prints from a paper bag, the paper would have to be fairly smooth and dry (11/4/92: 49).

The 291 ziplock bags found in the glove compartment contained a total of 28.047 grams of crack. (2)

The ziplock allegedly thrown down by xxxxxx contained 0.126 grams. The six ziplocks found outside the barbershop contained a total of 0.813 grams. The total of all the drugs found was 28.986 grams.

Police Officer David Stroud also testified, as an expert in the use of drugs and their packaging and sale on the streets (11/3/92: 46-47; APP 10-11). He testified that crack is often sold on the streets in little ziplock bags, after a dealer cuts a large piece of crack into small pieces (11/3/92: 148, 151; APP 12, 15). Stroud explained that beepers were used by drug dealers for various reasons (11/3/92: 152; APP 16). Stroud further testified that dealers often used a "stash," or hiding place, for drugs, to conceal drugs from both the police and also from people who might try to steal a dealer's drugs (11/3/92: 152-154; APP 16-18).

Stroud also testified that transactions were often done inside buildings to hide from possible police observation (11/3/92: 159; APP 23). A street drug transaction was described as a brief conversation with the exchange of cash for a small item, which often could not be observed because of its size (11/3/92: 163; APP 27).

The government then showed Stroud the drug evidence in the present case and the DEA lab report of its analysis (11/3/92: 163-164; APP 27-28). The following exchange then took place:

A. Okay. These bags, I think, look like the type that will go for $10 at street level. So we have a street value of $2,910.

Q. And does that quantity, 291 ziplocks, indicate anything in your opinion as to whether -- what the intent of the person was who possessed that crack cocaine?



A. Yes, intent to distribute.



Q. Why do you say that? Why not merely for personal use? Maybe they bought it just for their own use.



A. No way. First off, the approximate overall weight you gave was about 28-- I forget, about 28 grams, which is an ounce of cocaine. Now, an ounce of cocaine will go for maybe $1,300. And here we have a street value of $2,910, which means somebody stands to make at least a $1,600 profit by taking that ounce of crack cocaine, cutting it up into small pieces and putting the crack cocaine in these ziplock plastic bags and selling those 291 ziplocks for $10 a bag.



Secondly, it's been my experience that no drug users is going to purchase crack cocaine or any other kind of drug in 291 ziplock plastic bags for their so-called personal use, the reason being they could get stuck with 291 ziplock plastic bags of rocks, soap, nuts, burn material, bags of fake drugs.



Also, no drug dealer is going to sell you 291 ziplock plastic bags of crack cocaine or any other kind of drug for your so-called personal use, because the drug dealers are aware that the only persons who attempt to make a purchase like that would be, one, a rookie undercover police officer or, two, an informant who is working for the police and he's trying to score big points for the persons he's working for.



And getting back to the economic situation again, why should I pay $2,910 for something I could get for 1,300?



Q. Looking again -- this is just on government exhibits -- what the chemist indicated on the analysis as 1A, 1B and 1C. Again, do those correspond to items that are contained in that bag in government Exhibit 4?



A. Yes, they do.



Q. Or government exhibit 3?



A. Yes, it does.



Q. Referring again to 1A, 1B, 1C, which is the 291 ziplock bags, the 28 grams you referred to, what is the likelihood that someone who possessed that drugs would entrust that stash to someone who is not connected with the drug dealing enterprise?


A. He wouldn't. There is no way that this person would do such a thing, because as soon as you start getting careless with the drugs, you're leaving yourself open to being either ripped off by the stickup boys that are out there or even the people who you work for. If they see that you're a little lax, they'll steal still drugs from you, too, because you've got to remember, this is a cut-throat business and everybody is out to get everybody else. So, drug dealers will safeguard their drugs to the max.

(11/3/91: 165-166; APP 29-30) (Emphasis added).

The district court denied defendant's motion for a judgment of acquittal made at the conclusion of the government's case (11/4/92: 56).

C. The Defense Case

The defense presented two witnesses. The first, Warren Powell, was an inmate at the District of Columbia jail at the time of his testimony (11/4/92: 58). He was in the area in front of the laundromat the morning defendant was arrested. That was a place where people usually stood who were doing labor work such as painting and construction, waiting to be picked up by car (11/4/92: 59, 71). Seven or eight people were standing around on July 9, 1992, drinking coffee and talking (11/4/92: 60).

Defendant had gone to get the coffee that morning and had came back about 7:10 a.m., which is when Powell first saw defendant (11/4/92: 69). Powell, who left the area about 8:00 a.m., never saw defendant go to his car (11/4/92: 61). A man named Horace, who was out there a lot, had gone up and asked defendant a question (11/4/92: 63). Horace then went and placed a brown paper bag in defendant's car, apparently in the glove compartment (11/4/92: 63, 77). When Horace did this, Powell was standing six or seven feet away from the car (11/4/92: 64).

As Horace was leaning into the car putting the bag inside, defendant crossed the street to the barbershop (11/4/92: 78). A man and a woman were sitting on the back of a car in front of the barbershop (11/4/92: 64). Defendant said something to the woman, snatched some money from her hand, turned and walked away, and then turned around and gave her the money back (11/4/92: 65).

Later, Powell saw defendant being brought out of the barbershop by the police after his arrest (11/4/92: 65). Horace left the group and went down the alley when the police officers came together (11/4/92: 65).

Powell admitted he had been convicted of a number of felonies (11/4/92: 75). These included theft, distribution of cocaine, and forgery and uttering fraudulent checks (11/4/92: 75). He was currently in jail for charges of theft and misdemeanor possession of heroin (11/4/92: 75).

Walter Parrish was a barber in the shop where defendant was arrested (11/4/92: 80). Parrish had known defendant for four or five years (11/4/92: 84). Defendant came into the shop the morning of July 9, 1992, when Parrish opened it between 7:30 a.m. and 7:45 a.m. (11/4/92: 80). Four or five other men were also in the shop sitting around (11/4/92: 80). The men came in every morning, sat around for a while and joked and kidded and then left (11/4/92: 81, 84).

Defendant was in the shop before 8:00 a.m. (11/4/92: 89). He would buy coffee or something to eat and then leave and go to work (11/4/92: 89). He was in the shop for about ten minutes before the police came in and arrested him (11/4/92: 89).

Defendant originally sat in front when he came in, and was joking with a woman (11/4/92: 81-82). Defendant then stood in the back doorway behind Parrish, hiding from the woman, but defendant never went out to the patio area (11/4/92: 86). When the police came in one officer asked Parrish where the bathroom was, but then saw defendant standing there and grabbed him and brought him outside (11/4/92: 82).

After defendant was brought out, the officer came back and went outside to the patio (11/4/92: 83). He came back with some little blue bags (11/4/92: 83). The officer showed Parrish a hole in the fence where the officer had reached through and obtained the bags (11/4/92:83). The patio was used after work for sitting down and playing cards and drinking beer (11/4/92: 83).

At the end of the case, defendant's renewed motion for a judgment of acquittal was denied (11/4/92: 108).



SUMMARY OF ARGUMENT

The government's expert witness, David Stroud, improperly gave an opinion as to defendant's mental state. Although defense counsel failed to object, the error was obvious and affected substantial rights of the defendant, thus coming within the "plain error" doctrine. The error was obvious because less than a month before the trial of the present case, this court had decided such an opinion was improper. It affected defendant's substantial rights because this was a brief, single defendant trial with defendant's witnesses disputing the government's evidence.



DISCUSSION



OFFICER STROUD'S OPINION TESTIMONY THAT THE PERSON WHO POSSESSED THE DRUGS SEIZED IN THIS CASE DID SO WITH THE INTENT TO DISTRIBUTE THEM VIOLATED RULE 704(b) OF THE FEDERAL RULES OF EVIDIENCE

A. Standard of Review

Because trial counsel did not object to the admission of Officer Stroud's opinion testimony that the person who possessed 291 ziplocks intended to distribute the drugs, this court reviews the admission of the testimony for plain error. See Fed.R.Crim.P. 52(b). "[T]o achieve reversal under the plain error standard, the appellant must show that the complained of error was plain in the sense of being obvious, and that the error substantially undermined the fairness of the trial." United States v. Simpson, 992 F.2d 1224, 1228 (D.C. Cir.), cert. denied, 114 S.Ct. 286 (1993), citing United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1985). Both criteria are met in this case.

B. Discussion

This court has considered in several opinions whether the admission of particular expert testimony of Officer David Stroud violated Rule 704(b) of the Federal Rules of Evidence. (3) United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993); United States v. xxxxxx, 980 F.2d 1463 (D.C. Cir. 1992); United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992). See also United States v. Clarke, 24 F.3d 257 (D.C. Cir. 1994) (Detective Dwight Rawls's expert testimony challenged); United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988) (Officer Coates's expert testimony challenged). Although the court has yet to find reversible error, (4)

the court has found the questions put to Stroud, and his answers, to be "troubling," xxxxxx, 980 F.2d at 1466, and has repeatedly warned that "Rule 704(b) commands the expert to be silent" about the "defendant's actual mental state." Dunn, 846 F.2d at 762. See also, Mitchell, 996 F.2d at 422. Here, Stroud's testimony invaded the province of the jury and, therefore, made the trial manifestly unfair.

In Mitchell, this Court held that Rule 704(b) was violated when the trial court permitted the prosecutor to ask Stroud his opinion of the "intent of the person who was carrying those nine ziplocks" and when Stroud answered, "It was intent to distribute." Not long before, in xxxxxx, 980 F.2d at 1466, the court held that the rule was not violated where, in response to a question about the "intentions of the person who possessed those bags," Stroud testified, "These bags were meant to be distributed at street level." As the court explained in Mitchell, what saved the testimony in xxxxxx was the fact that Stroud's answer pointed more to the purpose for which the bags were packaged than to the mental state of the person carrying the bags, coupled with the fact that the trial judge immediately intervened "to underscore the witness' total lack of knowledge about the actual case before the jury." Mitchell, 996 F.2d at 422.

Although the prosecutor's question in Mitchell was "almost identical to that in xxxxxx," Stroud's answer -- "[i]t was intent to distribute" -- "pointed much more directly to the mental state of 'the person who was carrying those ziplocks.'" Mitchell, 996 F.2d at 422. Thus, the court found "Officer Stroud's testimony to cross the line implicit in xxxxxx, and to violate Rule 704(b) under our current law." Id. So too here.

In the present case, Stroud's opinion of the drug possessor's mental state being intent to distribute was elicited by using the very drugs in evidence, not by a hypothetical question. Cf. Clarke, 24 F.3d at 268. He specifically used the 291 bags as the basis for his opinion. Thus, Officer Stroud unambiguously stated his opinion, as directly as he did in Mitchell, that the person who possessed the drugs harbored the intent to distribute, the intent constituting the crime charged. This use of the expert -- as a sworn, authoritative spokesperson for the government's theory that appellant possessed the drugs with the specific intent required to constitute the crime -- transgressed the limits of Rule 704(b).

The violation of Rule 704(b) was "plain" because it was obvious error under Boney, which contains an extensive discussion of the limits of admissibility of similar testimony, and which was decided less than a month before the trial of the present case, see Mitchell, 996 F.2d at 422-23, and because it affected defendant's substantial rights. See United States v. Olano, 113 S.Ct. 1770, 1777 (1993). In Mitchell, the court found error because Stroud's answer to the prosecutor's question about "the intent of the person who was carrying those ziplocks" was less ambiguous than his answer in xxxxxx, and also because there was no judicial intervention to clarify Stroud's lack of personal knowledge. Mitchell, 996 F.2d at 422. However, because the court found the error nonprejudicial, for several reasons it reached the conclusion that it was not "plain." First, the prosecutor's question about "the person," lacked a specific referent, although it inferentially pointed only to one defendant, from whom the drugs had been seized, and not the codefendants. Id. at 423. Second, two of the defendants had sold drugs to an undercover officer, including a sale to the undercover officer just before the arrest. Third, the trial judge twice issued jury instructions on the limits of expert testimony. Id.

In the instant case, there was only one defendant, he was charged with constructive possession of the drugs in evidence, and Stroud testified that the drugs in evidence were possessed with intent to distribute. There was no ambiguity here, no conceivable question as to the identity of "the person." Furthermore, the prosecutor's questions to Stroud, and Stroud's answers referred explicitly to the drugs listed in the DEA lab report, which were the drugs actually presented in the case.

The case relied almost entirely on the testimony of Marsh and Smith as to defendant's connection to the drugs. There was direct contradictory testimony from two eyewitnesses. No sales were made to any undercover officer, nor was xxxxxx called as a witness.

Although the trial court did issue a standard expert witness instruction at the conclusion of the case, the instuction did not in any way suggest that an expert is unqualified to give his or her opinion on the mental state of a defendant. Instead, the instruction stated that an expert witness was permitted to give an opinion in evidence (11/5/92: 11). It also stated that the jury was not bound by the expert's opinion, but implied that the opinion should only be disregarded if the expert had insufficient education or experience, gave reasons for his opinion that were "not sound," or if the opinion was "outweighed by other evidence." (11/5/92: 11-12). Thus, the jury was left free to believe, incorrectly, that Stroud's testimony was entitled to a rebuttable presumption of trustworthiness and that his testimony as to defendant's mental state was proper. In a real sense, his "expert" testimony about the intent of the possessor of the drugs that were right before his eyes and that he explicitly referred to, had the impact of personal knowledge testimony.



CONCLUSION

In light of the disputed evidence and the relatively short trial, reversal for plain error is warranted in the present case.



Respectfully submitted,







A. J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500













CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).







__________________________

A. J. KRAMER











CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the Appendix of Appellant were on this 9th day of August, 1994, served by hand-delivery upon John R. Fisher, Chief, Appellate Division, United States Attorney's Office, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001.







A. J. KRAMER



1. "APP" refers to the appendix filed in conjunction with this brief. The transcripts are referenced by the date and page number.

2. The figures are taken from the DEA lab report, which was admitted into evidence (APP 36).

3. Rule 704(b) provides:



No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are for the trier of fact alone.

4. Stroud's testimony in Mitchell violated Rule 704(b), but was not prejudicial. Mitchell, 996 F.2d at 423.