ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred under Fed. R. Evid. 403 and 404(b) by admitting evidence of an alleged drug sale by defendant-appellant xxxxxxx to a wired confidential informant one month after the charged conduct, where the district court failed to follow the careful procedures mandated by this Court for determining the admissibility of "subsequent acts" evidence, the informant did not testify, no money or drugs were seen changing hands, neither Mr. xxxxxxx nor the informant referred to money or drugs during the alleged transaction, and the district court permitted improper hearsay testimony concerning the alleged transaction.

2. Whether the district court erred by refusing to declare a mistrial after the government's first witness, Officer Richard Martin, testified that Mr. xxxxxxx is a "violent offender," where the testimony had no probative value and was highly prejudicial.

3. Whether the conviction should be reversed because of prosecutorial misconduct, where the prosecutor reinforced the "violent offender" testimony on Officer Martin's redirect examination, invited an inference during cross-examination of defense witnesses that Mr. xxxxxxx is a thief who was incarcerated for much of the 1980s, made an improper missing witness argument in rebuttal, and commanded the jury to return a guilty verdict.

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

A. Basis for Subject Matter Jurisdiction in the District Court. Subject matter jurisdiction existed in the district court pursuant to 18 U.S.C. 3231 and 21 U.S.C. 841.

B. Basis for Jurisdiction in the Court of Appeals. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Pursuant to Rule 9(d), Rules of the United States Court of Appeals for the Sixth Circuit, Appellant respectfully requests oral argument to aid this Court in reaching its decision. This case requires a fact-specific review of a trial record pervaded by prejudicial testimony and comments. The asserted grounds for reversal involve numerous legal standards. Oral argument will assist this Court by allowing counsel to demonstrate the relationships between the various aspects of the factual record and the various legal standards involved in this appeal.

STANDARDS OF REVIEW

1. The standards of review for the admission of disputed evidence under Fed. R. Evid. 403 and 404(b) are set forth infra in Part I of the Argument.

2. The denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Solivan, 937 F.2d 1146, 1149 (6th Cir. 1991). A "determination of the fairness to the accused is the primary concern in ruling upon a mistrial motion[.]" United States v. Atisha, 804 F.2d 920, 926 (6th Cir. 1986).

3. The government bears the burden of proving that "constitutional error, resulting from the admission of highly prejudicial evidence or comment, is harmless beyond a reasonable doubt. . . . If there is a reasonable possibility that the evidence or comment complained of might have contributed to the conviction, then such error cannot be harmless beyond a reasonable doubt." Solivan, 937 F.2d at 1155 (citing Chapman v. California, 386 U.S. 18, 24 (1967)). In harmless error analysis, "[d]etermining whether an error is reversible necessitates examination of the entire record." Solivan, 937 F.2d at 1155.

4. Whether "prosecutorial misconduct has rendered a trial 'fundamentally unfair' is a mixed question of law and fact and is reviewed de novo." United States v. Wiedyk, 71 F.3d 602, 609 (6th Cir. 1995); United States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993).

SUMMARY OF ARGUMENT

The facts underlying the offense of conviction are simple. Mr. xxxxxxx was stopped in a Cadillac for traffic infractions on the evening of August 8, 1996. The Cadillac was owned by Mr. xxxxxxx's common-law wife, Charlotte xxxxxxx. After being warned for the infractions, and after being instructed that he was free to leave, Mr. xxxxxxx freely consented to a search of the vehicle. The search uncovered cocaine hidden under a plastic tray in a closed console between the two front seats and an electronic scale on the rear seat floor in an opaque bag. The police also seized, from Mr. xxxxxxx's person, $2,357.00 in cash, a cellular phone, and a pager.

At trial, the defense theory was that Mr. xxxxxxx did not know drugs were present in the car and that the drugs belonged to his daughter, Tabatha xxxxxxxxx. One of Ms. xxxxxxxxx's friends, Cindy xxxxxx, testified that she was with Ms. xxxxxxxxx in the Cadillac on the morning of Mr. xxxxxxx's arrest. Ms. xxxxxx testified that she saw a scale in the car and that Ms. xxxxxxxxx brought a large quantity of cocaine into the car. Ms. xxxxxxx and Mr. xxxxxxx's stepson, Charles xxxxxxx, testified that Ms. xxxxxxxxx was a disruptive and untrustworthy cocaine abuser. Ms. xxxxxxx also testified that she and Mr. xxxxxxx ran a restaurant business requiring use of cellular phones and pagers and that it would not be unusual for Mr. xxxxxxx to carry a large amount of cash from the business.

Three key defects in the trial require reversal. First, by ignoring the procedures mandated by this Court, the district court allowed the government to introduce unduly prejudicial evidence of an alleged drug transaction between Mr. xxxxxxx and an informant that occurred one month after the charged conduct. Second, the district court erred by refusing to declare a mistrial after the arresting officer testified that a check of Mr. xxxxxxx's Social Security number tagged him as a "violent offender." Following an inadequate limiting instruction, the "violent offender" testimony was reinforced on redirect examination. Third, the prosecutor committed misconduct by improperly cross-examining defense witnesses. The prosecutor suggested that Mr. xxxxxxx is a thief and also invited an inference that Mr. xxxxxxx was in prison for the decade of the 1980s. Then, during rebuttal argument, the prosecutor made an improper missing witness argument by suggesting that Ms. xxxxxxxxx should have been present at trial to claim the drugs if they were her drugs.

Even if this Court were to determine that the errors, taken individually, do not require a new trial, the cumulative effect of the errors requires reversal. A review of the entire record shows that "it is more probable than not that the error[s] materially affected the verdict." United States v. Fountain, 2 F.3d 656, 667 (6th Cir. 1993) (quoting United States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990)). Because the denial of a fair trial is constitutional error, the conviction also must be reversed because the errors in this case were not harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24.

STATEMENT OF THE CASE AND FACTS

A. Procedural Background. Mr. xxxxxxx was indicted on November 19, 1996. (R.1, Indictment, App. 11-12) (1) The two-count indictment charged that Mr. xxxxxxx, on or about August 8, 1996, possessed with intent to distribute approximately 48 grams of crack cocaine and 13 grams of powder cocaine in violation of 21 U.S.C. 841(a)(1). (R. 1, App. 11-12) The government alleged that the cocaine was discovered in the car that Mr. xxxxxxx was driving, pursuant to a consent search, after a Beaver Township, Ohio police officer stopped the car for traffic infractions. (R. 68, May 20, 1997 Transcript ("Tr. I") at 29, 37, App. 102, 110) (2)

Approximately two weeks before trial, Mr. xxxxxxx filed a motion in limine to prohibit introduction of certain evidence under Fed. R. Evid. 404(b). (R. 35, Motion in Limine, App. 16) The motion sought to exclude evidence of an alleged sale by Mr. xxxxxxx to an informant, who was under police surveillance, of approximately 5.87 grams of cocaine on September 10, 1996 -- more than one month after the charged conduct. (R. 35, App. 16) The government stated that it sought to introduce this testimony under Rule 404(b) to show that Mr. xxxxxxx intended to distribute the cocaine discovered in the car on August 8, 1996. (R. 36, Trial Brief, App. 18; R. 40, Government Response to Motion in Limine, App. 29)

Before trial, the district court denied the motion in limine without finding whether the alleged act occurred and without making any specific findings under Fed. R. Evid. 404(b) as to the purpose for which the evidence could be used. (R. 35, Marginal Entry, App. 16; March 19, 1997 Docket Entry; R. 44, Minutes, App. 40) The district court also failed to make pretrial findings under Fed. R. Evid. 403 as to whether the probative value of the evidence was substantially outweighed by its prejudicial effect. (R. 35, App. 16; R. 44, App. 40; Tr. I at 142, App. 214)

On May 20, 1997, the parties began a two-day trial. (Tr. I; R. 69, May 21, 1997 Transcript ("Tr. II")) Five witnesses testified for the government. Officer Richard Martin testified concerning the circumstances surrounding the traffic stop on August 8, 1996. (Tr. I at 19-53, App. 92-126) Both Officer Martin and Officer James Ball testified concerning the search, which resulted in a seizure of drugs from a hidden console in the car, a scale in an opaque bag in the rear of the car, a box containing partially hidden plastic sandwich baggies under the front passenger seat, and a cellular telephone, money, and a pager from Mr. xxxxxxx. (Tr. I at 35, 53-66, App. 108, 126-39). Lieutenant David Allen testified concerning the subsequent September 10, 1996 alleged cocaine transaction that was the subject of the motion in limine to exclude evidence. Allen also testified with respect to the pricing of cocaine and the failure of the government to conduct fingerprint tests. (Tr. I at 72-112, App. 145-84) Officer Melanie Viano testified concerning the alleged September 10, 1996 transaction. (Tr. I at 112-22, App. 184-94) Detective Carl Frost, the case agent, testified concerning the money seized from Mr. xxxxxxx. (Tr. I at 6, 122-26, App. 79, 194-98)

Four witnesses testified on behalf of Mr. xxxxxxx. Cindy xxxxxx, a friend of Mr. xxxxxxx's daughter, Tabatha xxxxxxxxx, testified that she was with Ms. xxxxxxxxx on the morning of Mr. xxxxxxx's arrest and that they were together in the car that Mr. xxxxxxx was driving later the same day when he was stopped by Officer Martin. Ms. xxxxxx testified that she saw a scale and packaging material in the car. She also saw Ms. xxxxxxxxx bring a large quantity of cocaine into the car. (Tr. II at 169-95, App. 242-68) Charlotte xxxxxxx, Mr. xxxxxxx's common-law wife, testified concerning Tabatha xxxxxxxxx's drug problems, Ms. xxxxxxx's and Mr. xxxxxxx's restaurant business, and Mr. xxxxxxx's handling of money, use of a pager, and use of a cellular telephone in the course of the business. (Tr. II at 195-222, App. 268-95) Both Ms. xxxxxx and Ms. xxxxxxx testified that Tabatha xxxxxxxxx was scheduled to travel by plane to Atlanta on the day of Mr. xxxxxxx's arrest. (Tr. II at 176, 181, 189, 209, App. 249, 254, 262, 282) Ms. xxxxxx testified that she advised Ms. xxxxxxxxx of the risks inherent in traveling by air with drugs. (Tr. II at 181, 186, 189, App. 254, 259, 262) Charles xxxxxxx, who is a corrections officer, a former deputy with the Mahoning County Sheriff's Department, and Mr. xxxxxxx's stepson, testified concerning the drug problems of Ms. xxxxxxxxx. (Tr. II at 146-52, 159-65, App. 218-25, 232-38) (3)

After a conference concerning admission of the exhibits -- no charge conference occurred on the record -- counsel for the parties made closing arguments. (Tr. II at 228-34, 234-45, 245-49, App. 301-07, 307-18, 318-22) (4) The district court then instructed the jury and sent them home for the day. (Tr. II at 249-72, App. 322-45) On May 22, 1997, after the jury returned to deliberate, two questions were posed to the district court. (R. 74, May 22, 1997 Supplemental Transcript ("Tr. Supp.") at 1-5, App. 353-57; R. 47, Minutes, App. 44) Later that day, the jury returned a verdict of guilty on each count. (R. 70, May 22, 1997 Transcript ("Tr. III") at 277-79, App. 350-52; R. 45, Verdict, App. 43)

On August 12, 1997, the district court sentenced Mr. xxxxxxx to a 262-month term of imprisonment. (R. 53, Minutes, App. 45; R. 54, Judgment, App. 47-51; R. 66, August 12, 1997 Transcript of Sentencing Hearing ("Tr. Sent.") at 2-7, App. 360-66) A notice of appeal was filed on August 15, 1997 (R. 57, Notice of Appeal, App. 52) On August 25, 1997, the district court, having determined that Mr. xxxxxxx is indigent, appointed the Federal Public Defender to represent Mr. xxxxxxx on appeal. (R. 59, Judgment Entry, App. 54)

B. Trial Proceedings. The trial of this case was dominated by four related issues. First, at the outset, Officer Martin testified that a check of records showed Mr. xxxxxxx to be a "violent offender," and then was permitted to reinforce that testimony on redirect examination. Second, the district court permitted extensive "subsequent acts" testimony, including improper hearsay testimony, concerning the alleged cocaine transaction between Mr. xxxxxxx and a nontestifying informant that occurred more than one month after the August 8, 1996 traffic stop. Third, the prosecutor capitalized on the "violent offender" testimony by inviting an inference, during cross-examination of defense witnesses, that Mr. xxxxxxx has a criminal history and has been in prison for long periods of time. Finally, the prosecutor made an improper rebuttal argument by suggesting that Ms. xxxxxxxxx would have testified if the drugs were her drugs.

1. The Traffic Stop and Search. During "radar traffic patrol" on the evening of August 8, 1996, Officer Richard J. Martin of the Beaver Township Police Department stopped a 1987 Cadillac that Mr. xxxxxxx was driving because the car was traveling 56 miles per hour in a 45 mile per hour zone and because it made a lane change without a signal. (Tr. I at 20-23, App. 93-96) Officer Martin testified that he approached the driver's side of the vehicle and requested Mr. xxxxxxx's license, vehicle registration, and proof of insurance. When Mr. xxxxxxx indicated that he did not have the documents with him, Officer Martin asked for Mr. xxxxxxx's Social Security number, which Mr. xxxxxxx provided. (Tr. I at 23-24, App. 96-97) At trial, the prosecutor asked Officer Martin whether he "[ran] that Social Security number[.]" When Officer Martin responded "yes," the prosecutor asked "What, if anything, did you discover?" In response, Officer Martin stated that "my dispatcher advised me . . . there was a violent offender warning tag with that Social Security Number in the computer." (Tr. I at 19-20, 24-25, App. 92-93, 97-98) (5)

Recognizing the severely prejudicial nature of Officer Martin's allegation, the prosecutor requested permission to approach the bench, and stated at sidebar that he did not intend to elicit the testimony concerning Mr. xxxxxxx's alleged status as a "violent offender." He also stated that "I expected him to say that he had a valid driver's license and I would suggest, your Honor, that a cautionary instruction to the effect that he's not on trial for that remark would be appropriate." (Tr. I at 25, App. 98) Counsel for Mr. xxxxxxx again objected, stated that the answer was "highly, highly prejudicial," expressed doubt that a "jury caution would help," and moved for a mistrial. The district court denied the motion for a mistrial, concluded the sidebar, and then gave the following instruction:

Ladies and gentlemen of the jury, a question was put to this witness and he responded to the question. He made a statement that was unanticipated. An objection was [interposed] by counsel for the defendant and the objection is well taken. I instruct this jury to disregard the answer given by this witness in the course of this examination an answer he gave that was not responsive to the question. I expect that you will accept the instruction of this Court and you will disregard the answer of this witness. [To the witness:] Sir, listen carefully to the questions that are put to you and make your answers responsive to those questions.(Tr. I at 25-26, App. 98-99)

The spectre of Mr. xxxxxxx's alleged "violent offender" status did not disappear as a result of the district court's purported limiting instruction. On redirect examination of Officer Martin, the prosecutor fully reinforced the prejudicial impact of that testimony:

Q: On cross-examination, [defense counsel] asked you if you were trained to ask consent. Tell the jury, why did you ask for consent to search the car?



A: It's just a normal practice that I use when I effect traffic stops.



Q: What did you consider -- what, if anything, did you consider about this stop to make you ask for consent?



A: I considered the fact of the information that I received when I ran Mr. xxxxxxx's record.



Q: What else, if anything, did you consider?



A: Nothing really, other than that.



Q: The information you received, you testified, is part of your consideration?



A: Yes, sir.



(Tr. I at 52, App.125)



The trial testimony shows that Mr. xxxxxxx freely consented to the search of the car within three to five minutes of the initial stop. Officer Martin testified that he determined through a check of records that the owner of the vehicle is Charlotte xxxxxxx, Mr. xxxxxxx's common-law wife. (Tr. I at 27, 45, App. 100, 118) Once Officer Martin was satisfied with the check of records, he "instructed [Mr. xxxxxxx] that [he] was going to give him a verbal warning on both traffic offenses that he committed." Officer Martin then "told [Mr. xxxxxxx] he was free to leave . . . [and] then asked him if he would mind consenting to a search of the motor vehicle that he was operating." Mr. xxxxxxx agreed and exited the patrol car with Officer Martin. Mr. xxxxxxx then retrieved the keys from the ignition and opened the trunk. (Tr. I at 29-30, 45-47, 49, 51, 61-62, App. 102-03, 118-20, 122, 124, 134-35)

Officers James Ball and Patrolman Michael Gutterby arrived on the scene within three to five minutes of the initial stop and searched the Cadillac at the instruction of Officer Martin. (Tr. I at 31-32, 49, 61, App. 104-05, 122, 134) During the search, which was thorough, Officer Gutterby discovered two packets of crack cocaine and one packet of powder cocaine. Officer Ball testified that the drugs were found in the cushion console that was between the two front seats of the vehicle and it had a hinge on it that could be opened, and inside the console was a plastic tray, and underneath the plastic tray, which was removed by Officer Gutterby, the crack and cocaine was located in that area.   (Tr. I at 57, 65, App. 130, 138) An electronic Tanita digital scale, apparently closed, was located on the floor inside an opaque plastic bag on the rear passenger side of the car. (Tr. I at 38, 58, 64, App. 111, 131, 137) A box of sandwich bags was discovered, half hidden under the seat, on the floor of the front passenger side of the car. (Tr. I at 57-58, 64, App. 130-31, 137) During a search incident to Mr. xxxxxxx's arrest, Officer Martin recovered a pager, approximately $2,300 in cash, and a cellular telephone from Mr. xxxxxxx's person. (Tr. I at 35, App. 108)

Although the police knew that Mr. xxxxxxx did not own the car, Officers Martin and Ball testified that the government made no effort to fingerprint the electronic scale, the box of sandwich baggies, the baggies themselves, or the packets containing the drugs. (Tr. I at 50-51, 65, 94-95, App. 123-24, 138, 166-67) Lieutenant David Allen, who testified for the government in part as a purported expert -- although he was not qualified as such by the district court under Fed. R. Evid. 702 -- conceded that it is "good police investigative work" to conduct fingerprint tests. (Tr. I at 94-95, App. 166-67)

2. Mr. xxxxxxx's Business Practices. When Mr. xxxxxxx was stopped by Officer Martin, he was working in the restaurant business with his common-law wife, Charlotte xxxxxxx. (Tr. II at 150, 196-97, App. 223, 269-70) Ms. xxxxxxx described Mr. xxxxxxx as "90 percent husband, 10 percent boyfriend . . . because I'm not legally married." (Tr. II at 196, App. 269) Ms. xxxxxxx has four sons, including Charles xxxxxxx, and Mr. xxxxxxx has three daughters, including Tabatha xxxxxxxxx. (Tr. II at 196, App. 196) Mr. xxxxxxx and Ms. xxxxxxx live at 305 Hilton Avenue in Youngstown, Ohio. (Tr. II at 195, App. 268) Charles xxxxxxx lives across the street. (Tr. II at 148, 196, App. 221, 269) Charles xxxxxxx testified that he considers Mr. xxxxxxx to be his father. (Tr. II at 147, 160, App. 220, 233)

At the time of the traffic stop, which was on a Thursday, the restaurant run by Mr. xxxxxxx and Ms. xxxxxxx was located on Cleveland Street on the south side of Youngstown. (Tr. II at 197, 199, App. 270, 272) Normally, both Mr. xxxxxxx and Ms. xxxxxxx purchased inventory, hired staff, cleaned, and conducted the "overall operation" of the restaurant. (Tr. II at 198, App. 271) Mr. xxxxxxx would also cook and was primarily responsible for making bank deposits. (Tr. II at 198, App. 271) On August 8, 1996, however, Mr. xxxxxxx was running the restaurant by himself, with the assistance of Ms. xxxxxxx's mother, because Ms. xxxxxxx was suffering from a shoulder injury. (Tr. II at 212-13, App. 285-86)



The restaurant was operated on a cash basis and both Mr. xxxxxxx and Ms. xxxxxxx made $275.00 per week. (Tr. II at 200, 217, App. 273, 290) Mr. xxxxxxx and Ms. xxxxxxx would not leave money in the restaurant because it had been burglarized. (Tr. II at 198, App. 271) Accordingly, Mr. xxxxxxx would carry money with him, generated from the business over the course of the week, to deposit in the bank on Thursday or Friday. (Tr. II at 200, 214, App. 273, 287) Ms. xxxxxxx testified that one could "catch either one of us with quite a bit of money on us" at the end of a given week. (Tr. II at 200, App. 273) (6) To conduct the operation of the restaurant, both Mr. xxxxxxx and Ms. xxxxxxx used pagers and cellular telephones that would connect to the lighter of Ms. xxxxxxx's Cadillac. (Tr. II at 197, 200-01, App. 270, 273-74)

3. Tabatha xxxxxxxxx's Addiction to and Possession of Drugs. Charlotte xxxxxxx, Charles xxxxxxx, and Cindy xxxxxx testified in detail concerning Tabatha xxxxxxxxx's cocaine addiction, disruptive behavior, and actual possession of drugs in the Cadillac on August 8, 1996. At the beginning of 1996, Ms. xxxxxxxxx was living in Georgia with her young son. Mr. xxxxxxx and Ms. xxxxxxx drove to Georgia, picked up Ms. xxxxxxxxx and her son, and returned to Youngstown. (Tr. II at 148-49, 201-02, App. 221-22, 274-75) Initially, Ms. xxxxxxxxx and her son lived with Mr. xxxxxxx, Ms. xxxxxxx, and two of Ms. xxxxxxx's sons, Chris and Craig. (Tr. II at 148, 202, App. 221, 275) At first, Ms. xxxxxxxxx behaved herself and was employed by H & R Block. (Tr. II at 203-04, App. 276-77) Within a few months, however, Ms. xxxxxxxxx began to be absent "[h]alf the time" and items were discovered missing from the house, including a television set and a bracelet. (Tr. II at 204, App. 277)

Ms. xxxxxxxxx's involvement with cocaine soon became apparent. Ms. xxxxxxx, who washes the family's clothes, saw drugs in the house, and found a "white round ball" in Ms. xxxxxxxxx's jeans. (Tr. II at 205, App. 278) Charles xxxxxxx, who received police training in identifying drug problems, witnessed Ms. xxxxxxxxx under the influence of drugs on different occasions. (Tr. at 152, App. 225) (7) Ms. xxxxxxx testified that her family started to resent Ms. xxxxxxxxx's presence in the house, that Mr. xxxxxxx was "in total denial" about the problems created by Ms. xxxxxxxxx, and that the issue started to divide Mr. xxxxxxx and Ms. xxxxxxx. (Tr. II at 205-06, App. 278-79) Ms. xxxxxxx found an apartment for Ms. xxxxxxxxx and eventually admitted her for drug treatment to the Hillside Clinic, the Neil Kennedy Clinic, and Alcoholism, Inc. of Mahoning County, commonly known as Donofrio Home. (Tr. II at 206-07, App. 279-80) Mr. xxxxxxx, who is not a drug user, would visit Ms. xxxxxxxxx while she was an inpatient. (Tr. II at 207-08, App. 280-81)

Several days before Mr. xxxxxxx's arrest, Ms. xxxxxxxxx's disruptive behavior caused Ms. xxxxxxx to issue an ultimatum to Mr. xxxxxxx. Ms. xxxxxxx testified that "it was almost a choice. Either she goes or I go or he goes, somebody had to go. . . . I mean she did everything there was to do. The girl stole from us, I mean, everything was done, there was nothing else to be done." (Tr. II at 209, App. 282) As a result, a flight was booked for Ms. xxxxxxxxx to return to Georgia from the Pittsburgh airport on August 8, 1996, the day of Mr. xxxxxxx's arrest. (Tr. II at 209, App. 282) Before her departure, Ms. xxxxxxxxx stayed with Ms. xxxxxxx and Mr. xxxxxxx for one night. (Tr. II at 208, App. 281)

Ms. xxxxxxxxx called Ms. xxxxxx on August 7, 1996, and stated that she would be leaving the next day. (Tr. II at 176, App. 249) On the morning of August 8, 1996, Ms. xxxxxxxxx picked up Ms. xxxxxx in the Cadillac; Ms. xxxxxxx believed that Ms. xxxxxxxxx "was going to get her hair set." (Tr. II at 177, 210, App. 250, 283) Ms. xxxxxxxxx, like Ms. xxxxxxx, Mr. xxxxxxx, and all of Ms. xxxxxxx's children, had access to Ms. xxxxxxx's Cadillac as well as other family vehicles. (Tr. II at 149, 202-03, App. 222, 275-76)

The two women first "went to say good-bye to some friends[.]" (Tr. II at 177, App. 250) Then, on the way back to Ms. xxxxxx's home, Ms. xxxxxxxxx stopped in a parking lot at Valley View, a mall in Brookfield, Ohio, near Ms. xxxxxx's home. (Tr. II at 177, App. 250) Ms. xxxxxxxxx parked the car, "said hang on a minute, I'll be right back, and she got out of the car and went back a couple aisles." (Tr. II at 177, App. 250) Ms. xxxxxx testified that "[w]hen [Ms. xxxxxxxxx] returned to the car she showed me a couple bags of cocaine, both rock and powder, along with some baggies and when she got into the car she was kind of hyper, excited, nervous." (Tr. II at 178, 184, App. 251, 257) Ms. xxxxxx testified that Ms. xxxxxxxxx had a "very large amount" of cocaine and also had a scale with her in the car. (Tr. II at 178, 181, 184, 186-88, App. 251, 254, 257, 259-61)

Ms. xxxxxx recognized the cocaine as such because she is a recovering cocaine addict. (Tr. II at 178, App. 251) (8) Ms. xxxxxx also testified that the amount was not consistent with personal use but that it is common for users to possess large amounts of cocaine. (Tr. II at 178, App. 251) Ms. xxxxxx stated that she supported her own habit, when she was a user, by selling cocaine. She described the manner in which she would purchase bulk amounts, break the drugs down into smaller packages to sell, and "reinvest [the profit] plus still have something to get high on." (Tr. II at 180, App. 253) She explained that it is important to have a scale because "[y]ou weigh your product, just like flour, sugar." (Tr. II at 180, App. 253) (9)

Ms. xxxxxx testified that she warned Ms. xxxxxxxxx against taking drugs on an airplane:

I told Tabatha that she was crazy and if I had known that she was going to pick up something like this with me in the car with her, I would have never went. I also told her that if she thought -- I told her that she was also crazy to try and fly home with that amount of stuff in her possession because as things are -- I haven't flown in awhile, but I know it's hard to put anything in a suit case. They are x-rayed. As far as the metal detectors go, you would not detect cocaine but --(Tr. II at 181, 186, 189, App. 254, 259, 262) Ms. xxxxxx freely admitted getting high with Ms. xxxxxxxxx on August 8 before Ms. xxxxxxxxx returned Ms. xxxxxx to her home, stating "I'm not proud of that." (Tr. II at 181-82, App. 254-55) (10)

After Tabatha returned to Ms. xxxxxxx's home, Ms. xxxxxxx noticed that the Cadillac was parked at the end of the driveway behind two other cars. (Tr. II at 211, App. 284) Mr. xxxxxxx then drove Ms. xxxxxxxxx in the Cadillac to the Pittsburgh airport at approximately 1:30 p.m., and later that afternoon, Mr. xxxxxxx returned home without Ms. xxxxxxxxx. (Tr. II at 211, App. 284) Ms. xxxxxxx testified that "[h]e was in a bad mood[,]" that he "said he was going to shoot pool[,]" and that he left with his pool cue within approximately 20 minutes and before dark. (Tr. II at 211-12, App. 284-85)

4. The Prosecutor's Improper Cross-Examinations. During the questioning of Charles xxxxxxx and Charlotte xxxxxxx, the prosecutor suggested that Mr. xxxxxxx is a thief and insinuated that Mr. xxxxxxx was in prison for most of the 1980s. The prosecutor conducted the following examination of Mr. xxxxxxx:

Q: [I]n fact, there were major periods of your life when [Mr. xxxxxxx] wasn't living with you, isn't that correct?



A: Yes, sir.



Q: There were in excess of numerous years, isn't that correct?



A: I don't know --



[DEFENSE COUNSEL]: Objection.



THE COURT: Overruled.



A: I don't know about numerous years, there was periods of time when he wasn't around.

Q: It would be fair to say he wasn't around most of the '80s, isn't that correct?



A: Yes, sir.



* * *



Q: Well. He wasn't around for most of the entire decade of the '80s, isn't that correct?



A: Yes.



Q: That is a major period of time, isn't it?



* * *



Q: So you have known him for 17 years?



A: I would approximate around there.



Q: And at least 10 of those 17 years he wasn't living with you, isn't that correct?



(Tr. II at 160-61, App. 233-34) The prosecutor then presented "some documents" in a purported effort to refresh Mr. xxxxxxx's recollection:

Q: Sir, does that refresh your recollection as to what years Mr. xxxxxxx was not living with you?



A: No sir, it doesn't. I only seen one clear date.



* * *



Q: Was he living with you in 1984? . . . How about 1985? . . . '86? . . . '87? . . . '88? . . . .



(Tr. II at 161-63, App. 234-36)

During cross-examination of Charlotte xxxxxxx, the prosecutor attacked Mr. xxxxxxx's character even more explicitly:

Q: Ma'am, how many years have you known the defendant xxxxxxx?



A: I have known him since the '60s. I have been in love with him about 17, 18 years. . . . He has only lived continuously with me the last three years.



Q: And prior to that there was a large period of time he wasn't there. Is that correct? . . . Many years; is that correct?



A: Correct, sir.



(Tr. II at 213-14, App. 286-87) Then, in an apparent effort to rebut earlier testimony that Tabatha xxxxxxxxx was suspected of stealing things from Ms. xxxxxxx's home, the prosecutor implied that Mr. xxxxxxx has a criminal history, despite the fact that Mr. xxxxxxx did not testify, and despite the fact that his character was not placed in issue:

Q: You have reason to believe that it could have been Mr. xxxxxxx that was stealing things, don't you?



A: No, no.



Q: Do you know if Mr. xxxxxxx has a history of stealing things?



A: No.



* * *



Q: Do you know where Mr. xxxxxxx was when he wasn't living with you?



A: Some of the time I did, yes. Most of the time, yes.



[DEFENSE COUNSEL]: Objection, your Honor.



THE COURT: Overruled.



Q: Do you know why he was at those places?



(Tr. II at 219-20, App. 292-93) The prosecutor then presented documents to Ms. xxxxxxx, ostensibly to refresh her recollection:

Q: Ma'am, please look at this here.



A: Doesn't say anything about stealing.



Q: Ma'am, just read it to yourself and then look at this here, please. Ma'am, I ask you again, do you have any reason to believe that it was Mr. xxxxxxx who was stealing your things?



A: No, I don't.



(Tr. II at 220, App. 293)



5. The Alleged September 10, 1996 Drug Transaction. The district court permitted the government to put on two police witnesses who testified that Mr. xxxxxxx sold cocaine to a confidential informant approximately one month after the seizure of the drugs charged in the indictment. The informant did not testify. Given the extent of the government's evidence on the Rule 404(b) issue, and the effort of the defense to limit the prejudicial impact of the testimony, the "subsequent acts" issue took on the character of a trial within a trial.

Lieutenant David Allen, who is employed by the Austintown, Ohio police department, supervised the alleged controlled buy on September 10, 1996. Allen testified that he "met with a female controlled informant who advised [him] that she could make a purchase of crack cocaine from [Mr. xxxxxxx]." (Tr. I at 75, App. 148) Allen testified that the informant had been convicted of bank robbery and that the informant contacted Allen from jail offering her services. (Tr. I at 106-08, App. 178-80) Allen asked the informant to arrange a purchase of a quarter ounce of crack, that he was present when the informant called Mr. xxxxxxx, and that he was present when Mr. xxxxxxx called her back. (Tr. I at 76-77, App. 149-50)

Allen testified that he and three other officers, including Officer Viano, were present near the WRTA bus station in downtown Youngstown at approximately noon on September 10, 1996. (Tr. I at 77-80, App. 150-53) Allen testified that he provided the informant with $250.00 with which to purchase crack. (Tr. 80-81, App. 153-54) At the bus station, from a distance of 50 yards, Allen observed Mr. xxxxxxx exit an Oldsmobile and enter the informant's vehicle. (Tr. I at 80-81, 100, 111, App. 153-54, 172, 183)

No witness testified that drugs or money were seen changing hands between Mr. xxxxxxx and the informant. Allen testified explicitly that he did not see any transaction occur. (Tr. I at 100-01, App. 172-73). While the government introduced into evidence eight photographs depicting the informant's vehicle, Mr. xxxxxxx, and the informant, none of the photographs depicted Mr. xxxxxxx and the informant together. Similarly, none of the photographs depicted any exchange of drugs or money. (Tr. I at 81-84, 97-100, 106, App. 154-157, 169-72, 178)

Although the informant wore a wire, and Allen contemporaneously listened to the conversation between Mr. xxxxxxx and the informant, Allen conceded that Mr. xxxxxxx and the informant did not mention drugs or money during the conversation. (Tr. I at 101, 103, App. 173, 175) When presented with a transcript on cross-examination, Allen testified as follows with respect to the conversation between Mr. xxxxxxx and the informant:

The target approaching said "it's been awhile." The confidential informant said "how be Joe?" And the target said "Joe says he doesn't know." Joe -- the informant says "Joe is mad at me, I haven't seen him for a while." Then you hear the rustling of paper and he said "you and Joe are cool, right?" And the informant says "oh, yes, oh, yes." The target says "okay, I just talked to him awhile ago." The target "all right." The informant, "I told him I was going to come and see him. I don't want to go and see him first because you know, he will bitch at me." The target, "all right, all right, be cool." And he departs.



(Tr. I at 104-05, App. 176-77) Allen testified that the entire conversation was monitored and that he testified to the entirety of the conversation. (Tr. I at 78, 105, App. 151, 177) (11)

Over objection, the district court permitted Allen to give hearsay testimony on redirect examination concerning "Joe," without making any finding as to the reliability of the testimony and without making any other finding to justify the hearsay. Allen testified that "Joe was the controlled informant's basically contact person with Mr. xxxxxxx. . . . Joe is basically, was I believe a boyfriend or friend of the confidential informant that she has known for, I don't know, supposedly years." (Tr. I at 109, App. 181) The hearsay testimony continued unabated:

Q: What is Joe's last name, do you know?



A: Cerny (phonetic).



Q: Was Joe Cerny contacted on September 10, 1996?



A: He was called on the telephone, yes.



Q: By whom?



[DEFENSE COUNSEL]: Objection.



THE COURT: Overruled.



A: He was called by the confidential informant because [Mr. xxxxxxx's ] pager had been changed and she needed the new number.



THE COURT: I'm going to sustain the objection and ask that the answer be stricken.



Q: Did you overhear the defendant tell the cooperating informant that he contacted Joe Cerny?



A: Yes.



Q: Did you overhear the defendant tell the cooperating informant that he in fact contacted Joe Cerny?



A: Correct.



Q: Did you overhear the defendant tell the cooperating informant that based upon the fact that he contacted Joe Cerny that he would meet and do the transaction?



A: Yes.



[DEFENSE COUNSEL]: Objection, your Honor.



THE COURT: Overruled.

(Tr. I at 109-110, App. 181-82)

After Mr. xxxxxxx and the informant went their separate ways, the informant gave crack cocaine weighing approximately 5.87 grams to the officers. (Tr. I at 84-85, 109, 119-21, App. 157-58, 181, 191-93) The trial testimony of the government's own witness cast doubt on the chain of custody of both the money and the drugs. Officer Viano testified that she searched the informant before and after the alleged controlled purchase and that the informant was under her surveillance. (Tr. at 114-15, App. 186-87) However, Viano did not testify where or precisely when the searches occurred. Moreover, Viano conceded that she did not conduct a body cavity search and that she is not authorized to do so. (Tr. at 116, App. 188) She conceded that it is possible that the informant concealed something in a body cavity. (Tr. at 116-17, App. 188-89) Although Viano appeared to testify on direct examination that the vehicle was searched "before and after," she stated on cross-examination that she was "only there to search the female[,]" and the district court made clear that she did not search the vehicle. (Tr. at 118-19, App. 190-91) No other testimony was presented to show that the vehicle driven by the informant was properly searched.

6. The District Court's Rule 404(b) Determinations. Before Allen and Viano testified, counsel for Mr. xxxxxxx renewed the pretrial objection to introduction of the alleged "subsequent acts" evidence. (Tr. I at 69, App. 142) Counsel for Mr. xxxxxxx stated "that the amount of cocaine would be indicative itself of intent to distribute so that there would be no need at this time for the government to put on evidence of specific intent and would [sic] the Court to consider that. And furthermore, Judge, if the Court again overrules our motion, we would ask the Court for a limiting instruction." (Tr. I at 69, App. 142) In response, counsel for the government claimed that "they have challenged knowledge and intent, and therefore have in their opening statement, and therefore have placed -- we will argue that the issue was in place anyway, but they have further placed the issue in point." (Tr. I at 70, App. 143) The district court then denied the renewed motion to exclude the "other acts" evidence. (Tr. I at 72, App. 145)

After Allen and Viano testified, the district court gave a brief instruction concerning the September 10, 1996 alleged drug transaction:

Ladies and gentlemen of the jury, you have just heard testimony that the defendant committed some act other than the ones charged in the indictment. You cannot consider this testimony as evidence that the defendant committed the crime that he is on trial for now. Indeed, you can only consider it in deciding the defendant's intent and/or knowledge, if any, during the actions charged in the indictment. Do not consider it for any other purpose. Remember, the defendant in on trial here only for possession with intent to distribute controlled substances on August 8, 1996, not for the other act. Do not return a guilty verdict unless the government proves the crimes with which the defendant is charged beyond a reasonable doubt.(Tr. I at 121, App. 193) While the district court determined that an inference could be drawn that drugs were exchanged for money on September 10, 1996 (Tr. at 132, App. 204), it failed to undertake a balancing analysis at any time under Fed. R. Evid. 403. To the contrary, after the prosecutor, obviating the need for a subsequent defense request, stated that "the law requires the Court to make a finding that its probative value exceeds its prejudicial effect[,]" the district court responded that "I denied the motion in limine. I denied the motion to bar the government from proceeding with this testimony under Rule 404(b). I have to make no other finding." (Tr. I at 142, App. 214)

During closing argument, the government reversed its position on the mental state at issue. Consistent with defense counsel's concession concerning intent, which was made before the government witnesses testified concerning the "subsequent acts" evidence, the prosecutor stated that intent to distribute was "not at issue" in light of the inference commanded by the amount of cocaine seized on August 8, 1996, and the presence of the scale and baggies in the Cadillac. (Tr. II at 229-30, App. 302-03) Instead, the prosecutor stated that "I think the element that the defense has challenged in this case, and we submit to you that the element at issue here is knowing possession." (Tr. II at 230, App. 303)

The district court repeated in its final jury instructions, almost verbatim, the limiting instruction that it gave after Allen and Viano testified:

You've heard testimony that the defendant committed some act other than the ones charged in the indictment. You cannot consider this testimony as evidence that the defendant committed the crime that he's on trial for now. Indeed, instead, you can only consider it in deciding the defendant's intent and/or knowledge, if any, during the actions charged in the indictment. Do not consider it for any other purpose. Remember, the defendant in on trial here only for possession with intent to distribute controlled substances on August 8, 1996, not for another act. Do not return a guilty verdict unless the government proves the crimes charged beyond a reasonable doubt.

(Tr. I at 260-61, App. 333-34)

7. The Prosecutor's Improper Rebuttal Argument. The government's rebuttal argument left the jury with a final taste of the prejudice that pervaded the trial. First, the prosecutor made an improper missing witness argument on rebuttal. With respect to Tabatha xxxxxxxxx, the prosecutor stated that "[defense counsel] met with Tabatha xxxxxxxxx in December after Rudy xxxxxxx was indicted. He could have subpoenaed her then. Where is she? Was she here to say those were my drugs?" (Tr. II at 246, App. 319)

Second, the prosecutor disparaged counsel for Mr. xxxxxxx, and thereby Mr. xxxxxxx, by making other allegations with no basis in the evidence. The prosecutor stated, "Let's talk about the real world. In the real world defense attorneys try to blur you . . . . [T]he Mahoning County Drug Task Force . . . had a controlled buy, yes, had a tape, had a transcript, the real world defense attorneys object to the admission of evidence and then bring you up, and say the prosecution didn't bring it to your attention. Yes, that's the real world." (Tr. II at 245-46, App. 318-19) But the government never even attempted to offer either the tape or transcript into evidence. (Tr. I at 133, App. 205)

Finally, during both the initial and rebuttal arguments, the prosecutor repeatedly commanded the jury to return a guilty verdict. The prosecutor stated that "there's only one conclusion you can draw. . . . [Y]ou have to conclude that Rudy xxxxxxx possessed those drugs with the intent to distribute them. . . . [Y]ou can reach only one conclusion. . . . [Y]ou have to come to one conclusion here[.]" (Tr. II at 234, 248-49, App. 307, 321-22)

ARGUMENT



I. The District Court Violated Fed. R. Evid. 403 and 404(b) By Admitting Evidence Concerning The Alleged September 10, 1996 Drug Transaction

When a defendant objects to the attempted introduction of evidence under Fed. R. Evid. 404(b), a district court is required to follow a careful procedure before any such evidence may be admitted. In reviewing a decision to admit "other acts" evidence, this Court has stated that we first review for clear error the district court's factual determination that the 'other . . . acts' occurred. Second, we examine de novo the district court's legal determination that the evidence was admissible for a legitimate purpose. Finally, we review for abuse of discretion the district court's determination that the probative value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.See United States v. Merriweather, 78 F.3d 1070, 1073 (6th Cir. 1996) (citing United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir. 1994), and United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir. 1992) (en banc)).

The proponent of "other acts" evidence is required to identify the specific purpose for which it is offered. Merriweather, 78 F.3d at 1070. The district court is then required to determine whether the identified purpose is "at issue." Id. In a prosecution under 21 U.S.C. 841 for drug distribution, knowledge cannot be at issue, as a matter of law, if the defendant denies possessing the drugs at all. See Johnson, 27 F.3d at 1194; accord United States v. Myers, 123 F.3d 350, 363 (6th Cir. 1997). Because intent to distribute is an element of the charged crime in such a prosecution, however, "other acts" evidence may be admissible, subject to Rule 403, to prove such intent. Johnson, 27 F.3d at 1192.

Once the district court determines what is properly at issue, it is required to engage in a fact-specific analysis under Rule 403 to determine whether the probative value of the evidence is substantially outweighed by its prejudicial effect. Merriweather, 78 F.3d at 1076. Several factors guide a district court in this analysis. First, "rarely will an event that occurred subsequent to the charged crime be probative of motive, knowledge, or intent[.]" See United States v. Cowart, 90 F.3d 154, 157-58 (6th Cir. 1996) (holding any error harmless because other evidence of guilt was "overwhelming") (citing United States v. Bakke, 942 F.2d 977, 980-81 (6th Cir. 1991); United States v. Zelinka, 862 F.2d 92, 99 (6th Cir. 1988); and United States v. Boyd, 595 F.2d 120, 126 (3d Cir. 1978)). Second, the availability of other means of proof cuts against admission of 404(b) evidence. Merriweather, 78 F.3d at 1076. A third factor is whether the "'reverberating clang' of the evidence that [defendant] committed the same or similar crime on another occasion will 'drown the weaker sound'" of the charged conduct. Id. at 1069-70. (12)

Ultimately, if the proffered Rule 404(b) evidence survives a Rule 403 balancing analysis, then the district court must "clearly, simply, and correctly" instruct the jury concerning the "narrow and limited purpose for which they may consider the evidence[.]" Johnson, 27 F.3d at 1192; Merriweather, 78 F.3d at 1076. More specifically, "[t]o apply Rule 404(b) fairly, the district court must carefully identify, in its instructions to the jury, the specific factor named in the rule that is relied upon to justify admission of the other acts evidence, explain why that factor is material, and warn the jurors against using the evidence to draw the inferences expressly forbidden in the first sentence of Rule 404(b)." Johnson, 27 F.3d at 1193.

In this case, the district court failed to follow the procedure required by Johnson and Merriweather. First, the district court did not determine that a drug transaction actually occurred on September 10, 1996. Instead, the district court agreed with the government that such an inference could be drawn by the jury. (Tr. I at 132, App. 204)

Second, the district court did not make an appropriate determination that the evidence was admissible for a legitimate purpose. Given Mr. xxxxxxx's mere presence defense, the evidence was not admissible to prove knowledge that drugs were in the car. Johnson, 27 F.3d at 1194; Myers, 123 F.3d at 363. Because the defense was prepared to concede intent to distribute, Tr. I at 69, App. 142, the district court should have determined that the evidence was not admissible for that purpose -- particularly because the admissibility of "subsequent acts" evidence should be "rare. " See Cowart, 90 F.3d at 157-58; cf. Old Chief v. United States, 519 U.S. __, 117 S.Ct. 644 (1997) (district court abused its discretion, in firearm case involving proof of prior felon status, by admitting evidence of prior conviction where defendant offered to concede the element by stipulation). The government itself recognized in closing that intent was not at issue in the trial. (Tr. II at 229-30, App. 302-03)

Third, the district court failed to balance probity and prejudice despite the government's request to do so. As Cowart states, subsequent acts are "rarely" probative of prior intent or knowledge. See 90 F.3d at 157-58. Unlike prior acts of drug dealing, subsequent acts of drug dealing do not prove that a defendant possessed the information necessary to know that drugs were present, or how to distribute drugs, at the time of the charged conduct. See Bakke, 942 F.2d at 982 (subsequent evidence of drug dealing "did not demonstrate or tend to show, as claimed by the government, that [defendant] must have 'learned the ropes' of the marijuana trade" by participating in earlier drug dealing). Moreover, as the government recognized in its closing argument, the amount of drugs at issue, and the presence of the scale and baggies in the car, proved the intent element. See Merriweather, 78 F.3d at 1076 (other means of proof cut against admissibility of Rule 404(b) evidence); see also Old Chief, 519 U.S. __, 117 S.Ct. 644 (1997). Furthermore, there was no justification for the prejudicial hearsay testimony by Lieutenant Allen concerning "Joe Cerny," the informant's alleged contact person for Mr. xxxxxxx. That testimony transgressed Mr. xxxxxxx's rights under the Confrontation Clause. At bottom, the "reverberating clang" of the "subsequent acts" testimony dominated the trial and unfairly subsumed the "weaker sound" of the evidence concerning the charged conduct. See Merriweather, 78 F.3d at 1069-70. Briefly put, the probative value of the "subsequent acts" evidence was substantially outweighed by its prejudicial effect, and thus the evidence should have been excluded.

Even if the district court had followed the procedures mandated by Merriweather and Johnson, and even if the probative value of the "subsequent acts" evidence was not substantially outweighed by its prejudicial effect, the district court erred because its limiting instructions were insufficient. After Officer Viano's testimony, the district court instructed the jury that Mr. xxxxxxx was not on trial for "the other act," which amounted to an improper instruction that the September 10, 1996 drug transaction actually occurred. Both of the Rule 404(b) limiting instructions also improperly referred to the knowledge element and the final instruction ignored the government's concession during its closing argument that intent was not at issue. Finally, the district court never described in the instructions why knowledge and intent were material and never described the bad character inferences forbidden by the first sentence of Rule 404(b). Accordingly, Mr. xxxxxxx's conviction should be reversed on this ground as well.

II. The District Court Erred By Failing To Declare A Mistrial After Officer Martin Testified That A Check of Records Tagged Mr. xxxxxxx As A "Violent Offender"

Except in rare cases, when authorized by Fed. R. Evid. 403 and 404(b), "'evidence of a criminal defendant's prior misconduct is inadmissible in the prosecution's case in chief to show the accused's bad character or criminal propensity[.]'" See United States v. Ailstock, 546 F.2d 1285, 1288 (6th Cir. 1976) (reversing conviction where government witness stated that defendant had been in prison, district court denied motion for mistrial, and a cautionary instruction was not given) (quoting United States v. Ring, 513 F.2d 1001, 1004 (6th Cir. 1975)).

In the ordinary case, a trial court has discretion "to determine whether instructions to disregard incompetent testimony [are] sufficient to avoid granting a mistrial[,]" but certain types of prejudicial testimony are so severe that no limiting instruction is sufficient to remove the undue prejudice. See United States v. Smith, 403 F.2d 74, 75-76 (6th Cir. 1968); United States v. Rudolph, 403 F.2d 805, 806-07 (6th Cir. 1968); United States v. Greene, 400 F.2d 847, 848 (6th Cir. 1968) (testimony concerning uncharged acts relating to union expense account, in a labor prosecution, was so prejudicial that even the striking of testimony and an immediate curative instruction would not have removed the prejudice); Solivan, 937 F.2d at 1155 (citing Pierce v. United States, 86 F.2d 949, 952-53 (6th Cir. 1936)); United States v. Nemeth, 430 F.2d 704, 705 (6th Cir. 1970); United States v. Terry, 729 F.2d 1063, 1069 (6th Cir. 1984) ("this court, consistently and repeatedly, has condemned the introduction of prior criminal convictions when the defendant does not testify at trial and the defendant's character is not otherwise in issue [citations omitted]. . . . One sure way to destroy [the] presumption of innocence is for a seasoned officer to interject an 'inadvertent' remark about a defendant's criminal history"); United States v. Forrest, 17 F.3d 916, 921 (6th Cir. 1994) (criticizing "machinations of the agent-witness"). (13)

Even if a limiting instruction potentially may be sufficient to cure prejudice, an instruction cannot be effective unless it "clearly, simply, and correctly" directs the jury in such a way as to remove the unduly prejudicial nature of the evidence. See Johnson, 27 F.3d at 1192. Similarly, even if a limiting instruction is given to disregard inadvertently presented evidence, a jury will not be presumed to have followed the instruction where there is an "'overwhelming probability' that the jury will be unable to follow the court's instructions . . . and a strong likelihood that the effect of the evidence would be 'devastating' to the defendant." See Greer v. Miller, 483 U.S. 756, 765 n. 8 (1987); United States v. Wiley, 534 F.2d 659, 662 (6th Cir. 1976) (purported curative instruction compounded error because district court referred to potential impeachment value of stricken prejudicial evidence); see also United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1992).

This Court has hesitated to affirm convictions using "harmless error" analysis in cases such as this one. Specifically, the evidence of guilt must be "overwhelming" -- even "strong" evidence is not enough -- before the government may seek the safe harbor of Fed. R. Crim. P. 52(a). See United States v. Blanton, 520 F.2d 907, 909 (6th Cir. 1975) (reversing conviction, although "evidence of guilt was strong," where witness testified that defendant was being investigated for a bank robbery independent of charged conduct); United States v. Ortiz, 507 F.2d 1224, 1225 (6th Cir. 1974) (conviction upheld, despite testimony concerning prior arrest record, only because evidence of appellant's guilt was "so overwhelming" that prejudice constituted harmless error); Terry, 729 F.2d at 1069 (evidence of guilt "overwhelming"); United States v. Wells, 431 F.2d 432, 433 (6th Cir. 1970) ("error was harmless because the evidence of guilt was overwhelming"). (14)

Here, Officer Martin's gratuitous statement that a computerized record check of Mr. xxxxxxx's Social Security number tagged him as a "violent offender" was devastating to Mr. xxxxxxx. The charged crime required the jury to infer that Mr. xxxxxxx knew the drugs were in the car that he was driving. Given Cindy xxxxxx's testimony that she saw Tabatha xxxxxxxxx obtain the drugs and possess the paraphernalia in the Cadillac on the day of Mr. xxxxxxx's arrest, the extensive testimony by three defense witnesses concerning Ms. xxxxxxxxx's drug problems and disruptive behavior, Mr. xxxxxxx's consent to search despite the knowledge that he was free to leave, the failure of the investigating officers to conduct scientific tests on the seized evidence, Charlotte xxxxxxx's testimony concerning the legitimate restaurant business, and the problems inherent in the "subsequent acts" evidence, the mere presence defense was a substantial one. Once Mr. xxxxxxx was tagged as a "violent offender," however, that defense lost all of its force. There was no excuse for Officer Martin -- a well-trained, well-promoted 16-year veteran of the Beaver Township Police Department -- to offer that information to the jury.

As for the limiting instruction, it was insufficient. After the delay caused by the sidebar, the district court simply told the jury to disregard an unidentified answer because it was "not responsive" to an unidentified question. Moreover, the district court referred to Officer Martin's testimony as "unanticipated," which did nothing to remove the prejudicial effect of the testimony, and simply bolstered the good faith of the government in the eyes of the jury.

Even if the limiting instruction could have eliminated the prejudicial effect of Officer Martin's testimony, the government reinjected the issue into the trial during redirect examination of Officer Martin. The prosecutor initially asked Officer Martin why he requested consent to search. In response, Officer Martin stated that "It's just a normal practice that I use when I effect traffic stops." Nonetheless, the prosecutor probed further for a specific reason, and elicited from the officer that he considered "the information that I received when I ran Mr. xxxxxxx's record." The prosecutor then reinforced that testimony by repeating it in the form of another question. As the direct examination showed, the only significant piece of information that Officer Martin learned when he "ran Mr. xxxxxxx's record" -- apart from "normal" information that would apply to any legal driver -- was that the dispatcher tagged Mr. xxxxxxx as a "violent offender." The only plausible inferences that the jury could have drawn on redirect examination were that Officer Martin believed Mr. xxxxxxx's "violent offender" status warranted a search of his car and that the jury was being invited to draw the same conclusion.

This case involves prejudice no less severe than the prejudice in Smith, 403 F.2d at 75-76, and Rudolph, 403 F.2d at 806-07. In Smith, the government witness testified that the defendant "just got out of the penitentiary." The trial court denied the motion for a mistrial and instructed the jury to "completely disregard" the statement. Similarly, in Rudolph, the prosecutor asked the witness whether he had ordered a killing and whether he had a narcotics conviction. The district court denied the motion for a mistrial and ordered the jury to "completely disregard" the statements. In both cases, this Court reversed the convictions and remanded for new trials. Because the evidence of guilt in Mr. xxxxxxx's case is far from "overwhelming" -- even assuming arguendo that the "subsequent acts" evidence was properly admitted -- Mr. xxxxxxx should receive a new trial.

III. Mr. xxxxxxx's Right to a Fair Trial Was Violated Due to Prosecutorial Misconduct

There are two related tests in this Circuit for determining whether prosecutorial misconduct requires reversal of a conviction. Initially, this Court must determine whether the misconduct was "flagrant." See United States v. Carroll, 26 F.3d 1380, 1383, 1389 (6th Cir. 1994) (citing United States v. Leon, 534 F.2d 667 (6th Cir. 1976)); Wiedyk, 71 F.3d at 607. To determine whether misconduct is flagrant, a reviewing court must determine whether the prosecutor's remarks were improper. If so, the court must determine whether the error was harmless. Such review requires this Court to consider

the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they were isolated or extensive; whether they were deliberately or accidentally placed before the jury; and the strength of the competent proofs introduced to establish the guilt of the accusedSee Leon, 534 F.2d at 679. Whether the district court gave appropriate cautionary instructions is a factor to consider in determining whether the jury was misled and the defendant was prejudiced. Carroll, 26 F.3d at 1383. If prosecutorial misconduct is flagrant, and the error is not harmless, a defendant is entitled to a new trial. Leon, 534 F.2d at 678-83 (reversing conviction and remanding for new trial).

Under the second formulation of the test, a new trial is nonetheless warranted, even if prosecutorial misconduct is not deemed "flagrant," where the prosecutor acted improperly, unless "proof of defendant's guilt is overwhelming, or defense counsel failed to object to the error, or . . . the trial court cured the error with an admonishment to the jury." See Carroll, 26 F.3d at 1386, n.6 (citing United States v. Bess, 593 F.2d 749, 753-57 (6th Cir. 1979)). (15)

With respect to the flagrancy analysis, the improprieties in the prosecutor's conduct were many in this case. First, the prosecutor reinforced the testimony concerning Mr. xxxxxxx's "violent offender" status on Officer Martin's redirect examination. Second, the prosecutor reinforced that testimony again during cross-examination of Charles and Charlotte xxxxxxx by inviting the jury to infer that Mr. xxxxxxx was a criminal who spent time in prison. For instance, while using a document ostensibly to refresh Ms. xxxxxxx's memory, the prosecutor asked Ms. xxxxxxx if she knew why Mr. xxxxxxx was at "those places" when they were not living together.

On rebuttal argument, the prosecutor acted improperly by suggesting that Tabatha xxxxxxxxx should have been present to claim the drugs if they were her drugs. First, the suggestion that defense counsel should have subpoenaed Ms. xxxxxxxxx in December, 1996 lacked any basis in the evidence. The evidence showed that defense counsel met with Ms. xxxxxxxxx in December, 1996 while she was visiting from Atlanta, but the trial date was not set until April 28, 1997. (Tr. I at 218, App. 291; Docket at R. 28) Even if the prosecutor's argument had been based on the evidence, however, the argument was improper. See United States v. Young, 463 F.2d 934, 941 (D.C. Cir. 1972) ("no inference may arise from the failure to call a witness to give testimony implicating himself") (citing Bowles v. United States, 439 F.2d 536 (D.C. Cir. 1970)). There is also nothing in the record to show that the government lacked access to Ms. xxxxxxxxx or that the prosecutor requested permission to make a missing witness argument. See, e.g., United States v. Blakemore, 489 F.2d 193 (6th Cir. 1973). In Blakemore, this Court reversed a conviction because of a prosecutor's missing witness argument. This Court held that an "adverse inference is permitted from the failure of a defendant to call witnesses if they are 'peculiarly within (his) power to produce' and if their testimony would 'elucidate the transaction.'" This "two-part analysis should be strictly applied." Id. at 195. Furthermore, counsel must seek advance permission from the district court before arguing "to the jury for an adverse inference to be derived from the absence of witnesses[.]" Id. None of the Blakemore preconditions was met here. (16)

These flagrant errors could not have been harmless. See Leon, 534 F.2d at 678-83. The misconduct was not isolated but instead permeated the trial -- from Officer Martin's initial testimony to the cross-examination of defense witnesses to rebuttal argument. The trial transcript supports an inference that the misconduct was deliberate. After the limiting instruction was given concerning the "violent offender" issue, the prosecutor reinforced the "violent offender" testimony on redirect examination by inviting the jury to infer that Officer Martin requested consent to search because of the "violent offender" information that he obtained from providing Mr. xxxxxxx's Social Security number to a dispatcher. The prosecutor then buttressed the improper testimony on cross-examination by inviting the inference that Mr. xxxxxxx is a thief who was in prison during the 1980s. The reference on rebuttal argument to the absence of Tabatha xxxxxxxxx as a defense witness further supports an inference of deliberate misconduct.

The prosecutor's actions also prejudiced Mr. xxxxxxx and misled the jury. The redirect examination of Officer Martin served no legitimate purpose. On cross-examination, the prosecutor's implications concerning Mr. xxxxxxx's whereabouts in the 1980s and alleged propensity to steal also served no legitimate purpose. The rebuttal argument sent the jury into deliberations with a concentrated dose of the prejudice that pervaded the trial. The prosecutor improperly referred to Tabatha xxxxxxxxx's absence from the trial, disparaged defense counsel without any basis, and commanded the jury to convict. As for the "competent proofs" factor of the Leon test, the evidence at trial, even with the inclusion of the improper "subsequent acts" testimony, was close enough that a reasonable jury could well have doubted that Mr. xxxxxxx -- who freely consented to the search -- was aware that cocaine was hidden under a plastic tray in a closed console in Ms. xxxxxxx's car. Finally, apart from the initial limiting instruction concerning the "violent offender" testimony, the district court failed to give any cautionary instructions concerning the prosecutorial improprieties. See Leon, 534 F.2d at 678-83; Carroll, 26 F.3d at 1383.

The common link among prosecutorial misconduct cases is that they involve unfair comments and purported evidence that have no proper role to play in the trial. For instance, in United States v. Payne, 2 F.3d 706 (6th Cir. 1993), this Court reversed a conviction for obstruction and desertion of mail because the trial was characterized by the government's effort to paint the defendant as a "bad individual who would take advantage of poor, pregnant women, and helpless children." Id. at 712. Similarly, in this case, Mr. xxxxxxx's supposed bad character and criminal past, which should have played no role at trial, were presented to the jury, although Mr. xxxxxxx never testified, and although Mr. xxxxxxx's character was not placed in issue. The improper rebuttal argument then closed the door on Mr. xxxxxxx's opportunity for an acquittal. As this Court stated in another case, a prosecutor's "duty to the public and the defendant obliges him to seek justice rather than convictions. The prosecutor in this case appears to have been preoccupied with seeking the latter rather than the former." United States v. Perry, 512 F.2d 805, 807 (6th Cir. 1975) (citing Berger v. United States, 295 U.S. 78, 88 (1935)). Accordingly, Mr. xxxxxxx's conviction should be reversed, and the case should be remanded for a new trial. (17)

CONCLUSION

For the reasons stated above, and in light of the entire record in this case, Defendant-Appellant Rudolph R. xxxxxxx requests that the Court reverse the judgment of the district court, vacate his conviction and sentence, and remand this case for a new trial.



Respectfully submitted,







_________________________________

Gregory L. Poe

Assistant Federal Public Defender

625 Indiana Avenue, N.W. #550

Washington, D.C. 20004



Counsel for Defendant-Appellant

APPELLANT'S DESIGNATION

OF APPENDIX CONTENTS

DESCRIPTION OF ENTRY DATE RECORD ENTRY NUMBER



Docket Sheet N/A N/A



Indictment 11/19/96 1



Motion in Limine 05/08/97 35



Government's Trial Brief 05/09/97 36



Government's Response to Motion in Limine 05/14/97 40



Minutes 05/20/97 44



Verdict 05/22/97 45



Minutes 05/22/97 47



Minutes 08/12/97 53



Judgment 08/13/97 54



Notice of Appeal 08/15/97 57



Judgment Entry 08/25/97 59












APPELLANT'S DESIGNATION

OF APPENDIX CONTENTS -- CONTINUED



DESCRIPTION OF

PROCEEDING OR TESTIMONY DATE RECORD ENTRY NUMBER



Transcript of Trial Proceedings 05/20/97 1-145

(Volume I)



Transcript of Trial Proceedings 05/21/97 146-274

(Volume II)



Transcript of Trial Proceedings 05/22/97 275-79

(Volume III)



Supplemental Transcript of 05/22/97 1-6

Trial Proceedings



Transcript of Sentencing Hearing 08/12/97 1-8



CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Final Brief of Defendant-Appellant Rudolph R. xxxxxxx were sent via regular United States mail, postage prepaid at Washington D.C., to Assistant United States Attorney Steven J. Katzman, City Center One, 100 East Federal Plaza, Second Floor, Youngstown, Ohio 44503, on this ____ day of May, 1998.

____________________________

Gregory L. Poe

Assistant Federal Public Defender

1. "R. __" refers to entries on the district court docket sheet in this case. The docket sheet is included in the Joint Appendix ("App.").

2. References herein to the trial transcript are in the form "Tr. [I or II] at __, App. __."

3. Mr. xxxxxxx also testified concerning the time he spent with Mr. xxxxxxx on September 10, 1996, the date on which Mr. xxxxxxx allegedly engaged in a drug transaction with the informant. (Tr. II at 153-59, 165-69, App. 226-32, 238-42) Mark Colucci, the custodian of records for the Mahoning County Sheriff's Department, was called to authenticate work records of Charles xxxxxxx that are consistent with Mr. xxxxxxx's testimony. (Tr. I at 126-29, App. 198-201)

4. Substantial portions of the trial proceedings, primarily sidebars, were held off the record. (Tr. I at 51, 77, 102, 109, 121, 141, App. 124, 150, 174, 181, 193, 213; Tr. II at 153, 176, 179, 182, 189, 193, 194, 217, 221, 241, 249, 260, App. 226, 249, 252, 255, 262, 266, 267, 290, 294, 314, 322, 333)

5. Counsel for Mr. xxxxxxx anticipated the improper testimony by objecting immediately after Officer Martin stated "my dispatcher advised me . . . ." But the district court overruled the objection without inquiry and the improper testimony was then presented to the jury. (Tr. I at 24-25, App. 97-98) The district court instructed counsel for Mr. xxxxxxx not to state reasons when objecting. (Tr. I at 76, 109, App. 149, 181)

6. During cross-examination of Ms. xxxxxxx, the government attempted to establish that most of the cash proceeds from food sales at the restaurant "would consist of 10 and 20 dollar bills." (Tr. II at 215, App. 288) The government sought to imply that the money seized from Mr. xxxxxxx constituted drug proceeds because Officer Carl Frost testified that the seized money was "predominantly hundred dollar bills." (Tr. I at 124, App. 196) Officer Frost conceded, however, that he had no idea where the money came from that was seized from Mr. xxxxxxx. (Tr. I at 126, App. 198)

7. At the time of trial, Mr. xxxxxxx was employed as a corrections officer in Youngstown and acted as a reserve deputy in the Mahoning County Sheriff's Department. He received a Bachelor of Science degree in criminal justice law enforcement from the University of Cincinnati. (Tr. II at 146-47, App. 219-20)

8. Over objection, the district court instructed the jury to view Ms. xxxxxx's testimony with special care because she is a drug abuser, although no evidence was presented to show that Ms. xxxxxx was abusing drugs at the time of trial. (Tr. II at 259, App. 332)

9. Ms. xxxxxx stated that the cocaine she saw on August 8, 1996 was worth at least a few thousand dollars. (Tr. II at 187, App. 260) Lieutenant David Allen testified for the government -- although no effort was made to qualify him as an expert witness -- that the total value of the cocaine seized on August 8, 1996 was approximately $4,000.00. (Tr. I at 91, App. 163)

10. Ms. xxxxxx testified at length, on both direct examination and cross-examination, concerning her drug problems and her efforts to remain clean and sober. (Tr. II at 169-75, 183-86, App. 242-48, 256-59) She first met Ms. xxxxxxxxx as a user but did not learn her name until a fellowship meeting at the Neil Kennedy detoxification center. She also saw Ms. xxxxxxxxx on occasion at the Donofrio Home and was introduced by Ms. xxxxxxxxx to Mr. xxxxxxx at the Donofrio Home when Mr. xxxxxxx was visiting Ms. xxxxxxxxx. (Tr. II at 194-95, App. 267-68) In total, Ms. xxxxxx and Ms. xxxxxxxxx met at least 20 times and "went out three times." On the first occasion, they attended a meeting together. The second occasion was on July 14, 1996, and that "was not a good time because [they] both ended up going out and using drugs" instead of attending a planned meeting. (Tr. II at 169-75, 184, 191-93, App. 242-48, 257, 264-66)

11. The government did not attempt to introduce either the tape or the transcript into evidence. (Tr. I at 133, App. 205)

12. If a defendant fails to request an on-the-record balancing by the district court, this Court ordinarily will not reverse and remand for such an analysis where a plenary review of the record on appeal establishes that a conviction should be reversed or that the probative value of the government's Rule 404(b) evidence is not substantially outweighed by its prejudicial effect. See United States v. Acosta-Cazares, 878 F.2d 945, 949-50 (6th Cir. 1989); Merriweather, 78 F.3d at 1077 n. 1 (expressing disapproval of failure to engage in specific balancing analysis and stating that "district courts should make an express determination under Rule 403"); see also United States v. Jobson, 102 F.3d 214, 221-22 (6th Cir. 1996) (reversing conviction and declining to remand case for balancing analysis because defendant did not receive a fair trial). In this case, the prosecutor specifically requested an on-the-record balancing, thus obviating the need for a subsequent defense request, and the district court declined to do so. (Tr. I at 142, App. 214)

13. Officer Martin, who testified that a check of Mr. xxxxxxx's Social Security number tagged Mr. xxxxxxx as a "violent offender," has been employed by Beaver Township as an officer for more than 16 years. He has also received extensive training as an officer. At the time of the traffic stop, Officer Martin was a corporal in the patrol division. By the time of trial, Officer Martin had been promoted to the rank of sergeant in the patrol division and then sergeant within the detective division. (Tr. I at 19-20, App. 92-93)

14. This Court has explicitly recognized the strict scrutiny that must be applied to convictions resulting from testimony like Officer Martin's testimony in this case. See United States v. Andrea, 538 F.2d 1255, 1256 (6th Cir. 1976) ("This court is considering whether or not it should lay down a rule for this circuit under its supervisory powers to the effect that a mistrial will result in any instance where a statement by a United States Government employee witness suggests that a charged defendant who does not take the stand has been guilty of another felony").

15. The effect of prosecutorial misconduct is context-specific. See, e.g., Solivan, 937 F.2d at 1150 ("There are instances where a single misstep on the part of a prosecutor may be so destructive of the right to a fair trial that reversal is mandated"); Pierce, 86 F.2d at 952 (same).

16. The prosecutor also acted improperly by commanding the jury to return a guilty verdict and disparaging defense counsel.

17. If this Court were to determine that the prosecutorial misconduct was not flagrant, Mr. xxxxxxx should nonetheless receive a new trial under the Bess standard. The evidence was not overwhelming. Trial counsel for Mr. xxxxxxx objected to most of the improper conduct. And the district court did not admonish the jury with the exception of the limiting instruction following the initial reference to Mr. xxxxxxx's status as a "violent offender." See Carroll, 26 F.3d at 1396, n.6 (citing Bess, 593 F.2d at 753-57).

Even if trial errors may be deemed harmless standing alone, their cumulative effect may amount to a denial of due process and render a trial fundamentally unfair. See United States v. Parker, 997 F.2d 219, 221-22 (6th Cir. 1993) (citing Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983)). Moreover, in some circumstances, this Court has ordered new trials based on its "supervisory powers over criminal trials within this circuit." See United States v. Smith, 500 F.2d 293, 295 (6th Cir. 1974) (ordering new trial, without reaching constitutional question, where prosecutor's comments during closing argument had "the effect of shifting the burden of proof . . . and abrogating the presumption of innocence"); United States v. Reed, 647 F.2d 678, 686 (6th Cir. 1981) (question is whether exercise of "supervisory powers requires, as a matter of sound judicial administration, the deterrent therapy of a new trial"). Given the collective impact of the trial errors in this case, Mr. xxxxxxx's conviction cannot be permitted to stand, even if the trial errors, taken individually, are not deemed to require reversal.