UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________



No. 93-3188

_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxx D. xxxxxxx, Defendant-Appellant.



_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



____________________________________________





BRIEF FOR APPELLANT



____________________________________________







JURISDICTION



The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court having been filed on October 15, 1993, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the prosecutor deprived Mr. xxxxxxx of due process under Doyle v. Ohio, 426 U.S. 630 (1976), by impeaching Mr. xxxxxxx's exculpatory testimony with his post-Miranda silence and referring again to that silence to cast doubt on his exculpatory account in her closing argument.



II. Whether the trial court erred in asking Mr. xxxxxxx to pass personal judgment on the credibility of a police officer, setting up for the jury a false choice between what the court mischaracterized as "two diametrically opposed stories."

III. Whether the trial court's jury instructions, framing the case as a simple credibility contest between the police and Mr. xxxxxxx and telling the jurors that they must decide "[w]hich side" is "telling the truth" and "which story is more likely to be true than the other," plainly lowered the government's burden below the constitutional standard of proof beyond a reasonable doubt.

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and

Disposition in the Court Below



On May 27, 1993, a federal grand jury sitting in the District of Columbia returned a one-count indictment charging Mr. xxxxxxx D. xxxxxxx with possession of an unregistered firearm in violation of 26 U.S.C. 5861(d). A. 7. (1)

A jury trial commenced before the Honorable Harold H. Greene on July 27, 1993. On July 29, 1993, the jury returned a verdict of guilty. On October 7, 1993, Mr. xxxxxxx was sentenced to 57 months of imprisonment and three years of supervised release (A. 19-22). Mr. xxxxxxx filed a timely notice of appeal (A. 23).

B. Statement of Facts

1. The Government's Case

On May 4, 1993, at approximately 9:00 a.m., Officer Franklin Crews was patrolling in his marked cruiser when he received a radio lookout for a black male in the area of 11th and H Streets Northeast, wearing a blue and white jacket and carrying a Heineken beer box containing a shotgun (Tr. 71-72, 82). Officer Crews picked up Officer Robert Scippio, who had been on foot patrol, and proceeded to canvass the area stated in the lookout (Tr. 42-43, 72-73). When the officers pulled up to the stop sign on the southeast corner of 9th and I Streets, they observed three men standing in front of the Neighbors' Market, one of whom fit the lookout description and was holding a Heineken box (Tr. 44, 73, 78). (2) Both officers testified that that man was Mr. xxxxxxx (Tr. 44-45, 73). (3) Neither officer could give any description of the other two men (Tr. 61, 81-83).

Officer Crews advised the dispatcher that he had seen a subject matching the lookout description and then pulled the cruiser through the intersection to the northeast corner of 9th and I Streets, where the market was located (Tr. 74, 78). (4) Officer Crews testified that the individual with the box broke and ran as he and Officer Scippio got out of the car and began to walk towards him (Tr. 74-75). Officer Scippio testified that, after the man with the box motioned that he had seen the police car, Officer Scippio got out of the police car and said, "Excuse me, sir. Can you come here for a second," at which time the man took off running (Tr. 46). Neither officer saw where the other two men went (Tr. 62-63, 69, 81-82).

Officer Scippio chased the man with the box eastbound on I Street and north into an alley (Tr. 46), while Officer Crews headed north on 9th Street and then east on K Street (Tr. 75, 79). Officer Scippio testified that throughout the footchase through several cuts in the alley he was always three to five feet behind the man with the box (Tr. 46-47, 51, 63-64). When they reached a waist-high fence in the vicinity of 928 10th Street, still within one-block of the corner market, the man jumped over the fence with the box under his arm (Tr. 47, 64). With Officer Scippio still three to five feet behind him, the man then threw the box over a six-foot fence, located three to five feet away from the first fence, at which time "the shotgun separated from the beer box" (Tr. 47, 52, 64). (5) The defendant rapidly scaled the fence (Tr. 47, 52, 66). Officer Scippio scaled the fence more slowly and then abandoned the chase to recover the box and the shotgun (id.).

Officer Crews testified that, approximately two to three minutes after the man with the box had run away from 9th and I Streets, as the officer was running eastbound on K Street about 25-40 feet from the 10th Street intersection, he saw the same man running "catty-corner" toward K Street from 10th Street, removing his blue and white jacket as he ran (Tr. 75, 79, 88-89). He yelled at the man to stop (Tr. 89). The man turned and looked at him but kept running (id.). When the man reached K Street he had a five-foot lead on the officer, which grew larger as they crossed 11th Street (Tr. 76, 89). Officer Crews lost sight of the man as the man turned southbound into an alley (Tr. 76, 79).

Officer Daniel Kapaska was on foot patrol with his partner at 15th and H Streets when he heard a radio run stating that officers were in pursuit of a man wearing a blue and white jacket and carrying a gun (Tr. 93-95). The officers proceeded west on H Street, turned north on 12th Street, and entered an alley in the 900 block of 12th Street just as Mr. xxxxxxx came jogging around the corner of the alley, sweating and breathing hard and carrying a blue and white jacket wrapped up in his hands (Tr. 94, 96). (6) Officer Kapaska pointed his gun at Mr. xxxxxxx and placed him under arrest behind 902 12th Street (Tr. 95).

Officer Crews proceeded to the arrest scene, where he identified Mr. xxxxxxx as the man he had chased and who had had the Heineken box earlier (Tr. 76-77). Officer Scippio took the Heineken box and the shotgun to that location (Tr. 48). There, after "spott[ing] the sweat jacket" on the seat of the transport car beside a handcuffed Mr. xxxxxxx, Officer Scippio identified Mr. xxxxxxx as the man who had had the beer box (Tr. 49, 67-68). The government put on expert testimony that a latent fingerprint found on the right side of the shotgun barrel matched an inked print taken from Mr. xxxxxxx (Tr. 105, 125-126). When asked which finger it matched, the expert testified, "left hand, No. 8 and No. 7," i.e., "left index and left middle" (Tr. 126) (emphasis supplied). (7) Finally, the government put on evidence that the shotgun was not registered to Mr. xxxxxxx under the National Firearms Act (Tr. 139).

2. The Defense Case

The evidence put on by Mr. xxxxxxx raised a defense of mistaken identification, suggesting that, although Mr. xxxxxxx had been one of the three men standing at 9th and I Streets, had touched the gun, and had run when the police arrived, the person with the box (the one Officer Scippio had chased through the alley and over the fence) was one of the other two men. The defense evidence suggested that the man with the box may have successfully escaped to a house in the same block where Officer Scippio lost him. This scenario raised the possibility that when Mr. xxxxxxx ran into Officer Crews's path, Officer Crews mistakenly assumed that he was the man he had briefly observed with the box and misidentified him as such at the scene. Similarly, the defense suggested that Officer Scippio's subsequent identification of Mr. xxxxxxx was in error -- that the officer had been farther than "three to five" feet away from the man running with the box and that he had been influenced by the prior identification by Officer Crews and Mr. xxxxxxx's possession of a jacket similar to that worn by the man he had chased.

xxxxxxx xxxxxxx's uncle, James xxxxxxx, testified that he lived with his nephew and other relatives at 1214 I Street, Northeast (Tr 149). He was standing at 12th and H Streets at about 8:15 a.m., passing the time before going to his job at xxxxxxx Auto Mechanic, (8) when his nephew walked by, heading towards 11th and H Streets (Tr. 150-151). When James xxxxxxx subsequently looked back in the direction of 11th and H Streets, Mr. xxxxxxx was no longer in sight, but shortly thereafter four officers came running from that direction (Tr. 155-157). James xxxxxxx followed them as they headed north on 12th Street to the entrance of an alley past I Street (Tr. 151, 158-159). From the corner of 12th and I Streets, James xxxxxxx could see one of the officers kneel down, point his gun into the alley and say, "Drop, before I shoot" (id.). James xxxxxxx then followed the officers into the alley and saw his nephew on the ground and a shotgun on the back of a car (Tr. 159-160, 162).

During the prosecutor's cross-examination of James xxxxxxx, the trial court took over the questioning, challenging (and misstating) the uncle's testimony in a way that made it appear that the witness had contradicted himself, when in fact he had not (Tr. 159-161):

Q Then when you got to the alley, what did you see?



A I saw my nephew laying on the ground.



Q And you don't remember him saying anything or the officers saying anything, is that right?



A No. Because I walked up to the officer and asked the officer could I speak to my nephew, and he told me no. So I turned and walked away.



Q And you didn't stay on the scene --



THE COURT: I thought you said when you got to the alley, you heard one of the officers say, drop or I'll shoot.



THE WITNESS: I did when I got to the corner of 12th and I. I heard the officer say that. But after the officer went up in the alley, that's when I followed them up in the alley.



THE COURT: You didn't see the officer when he said that?



THE WITNESS: Yes, I saw the officer. He was at the edge of the alley.



THE COURT: Don't get excited. Don't yell at me. Just answer my questions. I wasn't there.



Now I don't quite understand. You say you heard the officer say, drop or I'll shoot, and then a minute ago you said when you first got to the alley, your nephew was already on the ground. Which is it?



THE WITNESS: I said when I got to 12th and I, I heard the officer say, drop or I'll shoot. But when I got to the alley --



THE COURT: What was your nephew doing at the time?



THE WITNESS: I don't know what he was doing then. I couldn't see him from where I was at.



THE COURT: How long did it take you to get from where you were standing to get to the place where the officers were and where your nephew was?



THE WITNESS: I would say a minute at the most.



THE COURT: Didn't you say a few minutes ago that it took you five to six minutes to get there?



MS. MARSHALL: Your Honor, --



THE WITNESS: Not from that corner.



THE COURT: I'm asking the questions. If you want to object, you can come to the bench and object but not contradict the questions I'm asking. If you want to take the stand, I will be glad to swear you in and let you take the stand.



Do you want to take the stand?



MS. MARSHALL: Your Honor, may I approach the bench?



THE COURT: Have a seat, ma'am.



Did you say it took you five to six minutes to get there?



THE WITNESS: No. I said it took me about five to six minutes to come from 12th and H to 12th and I.



THE COURT: I see. Okay. Go ahead, Ms. Destura.

Defendant xxxxxxx xxxxxxx testified that he was on his way from his house to the Farmer's Market at 5th Street and Florida Avenue to seek work as a daily laborer, carrying his jacket (gray with dark blue and light blue stripes), when he was called over to the corner market at 9th and I Streets by a Mr. Yarborough and a man Mr. xxxxxxx had seen with Yarborough before (Tr. 172-173, 178-181, 195). Mr. Yarborough lived four or five houses down from the market (Tr. 175, 180). Mr. xxxxxxx was not sure of Yarborough's friend's name, but thought it was Tyrone or Ty or something beginning with a "T" (Tr. 173, 180).

The two men told Mr. xxxxxxx to "check this out" and "T" took the top off of a Heineken beer box stacked high alongside the market (Tr. 174, 182-184). When Mr. xxxxxxx reached up and put his hand in the box, asking "what is it?", "T" told him to "just get it" (Tr. 174, 182-183). As Mr. xxxxxxx reached to grab whatever was in the box, "T" said "someone is going to do time," at which point one of the men said, "Police" (Tr. 174, 182-186). Mr. xxxxxxx pulled his hand from the box, still unsure what had been in there. (9) Mr. xxxxxxx then saw a police car coming and, feeling "paranoid" that he was in the midst of something wrong, ran east on I Street behind the others (Tr. 174-175, 183, 185-188, 190-191, 195-196). The other two men cut into the alley described by Officer Scippio, but Mr. xxxxxxx, thinking that the others were running to Yarborough's house and not wanting to "get myself in something else" kept running on I Street towards his own house (Tr. 175, 196). He turned north on 10th Street and then east again on K Street, at which point he looked back and saw a police officer about a block away (id.). He ran into the alley that runs behind 11th Street and, as he was coming out, two police officers came around the corner and arrested him in the area of 902 12th Street (Tr. 188-189).

3. The Court's Cross-Examination of Mr. xxxxxxx

Mr. xxxxxxx's testimony that he had not followed the others into the alley described by Officer Scippio set up a defense of simple mistaken identity. Nevertheless, during the redirect of Mr. xxxxxxx, the court characterized the conflict between Mr. xxxxxxx and the police in more sinister terms and, through use of a highly inflammatory leading question, forced Mr. xxxxxxx to pass judgment

on the credibility of Officer Scippio (Tr. 196-197) (emphasis supplied):

THE COURT: When you were running with the police after you, did you have to jump or climb over any fences?



THE WITNESS: No, Sir.



THE COURT: It didn't exist, no fence is there?



THE WITNESS: I never went through an alley or anything until I got to 11th Street, the alley right next to my house, and there wasn't no fence.



THE COURT: The officer made it all up?



THE WITNESS: Yes, Ma'am -- Yes, Sir.



THE COURT: Okay.

At the next available opportunity (the bench conference that followed the few remaining questions defense counsel had for Mr. xxxxxxx), counsel objected to what the court had done (Tr. 198-200) (emphasis supplied):

MS. MARSHALL: Your Honor, the only other thing, just briefly, is that I would object, make an objection about my client being asked to comment on the testimony of the police in general because, I mean, I don't think we basically are just saying they made everything up.



THE COURT: What rule of evidence are you talking about?



MS. MARSHALL: Your Honor, because basically he --



THE COURT: What case are you citing and what rule of evidence are you talking about?



MS. MARSHALL: Your Honor, I don't think that my client would be competent to testify about the mind set of another officer. That's all.



THE COURT: The objection is overruled.



MS. MARSHALL: Yes, Your Honor.



THE COURT: It's too late anyhow. All it does is chastise me for having asked the question.



MS. MARSHALL: Your Honor, I wasn't trying to chastise you.



THE COURT: You do that all the time, so I'm used to it. What else?

* * *



MS. MARSHALL: Your Honor, may I ask just a brief question? Whenever the Court asks questions, I am not sure in terms of your procedures about if I have an objection to a question whether I should just indicate objection or whether I should wait until the Court is finished. If the Court could tell me, then I think I won't mess it up.



THE COURT: You can object. Obviously you can object. One thing I don't appreciate is that you contradict me and say I can't do this instead of just objecting.



Another thing is this is perfectly all right except what did you expect me to do objecting ten minutes after the question was asked? What's the point of that?



MS. MARSHALL: Yes, Your Honor.



THE COURT: I am not here to educate attorneys who have been practicing for a long time.



MS. MARSHALL: Yes, Your Honor.

4. The Doyle Violations

In cross-examining Mr. xxxxxxx about his exculpatory explanation, the prosecutor drew a prompt objection when she tried to impeach Mr. xxxxxxx with his failure to tell the police his story at the time of his arrest, but the court allowed the questioning to proceed (Tr. 191-192) (emphasis supplied):

Q When you were arrested, you didn't tell the police about your two friends, did you?



Ms. Marshall: Objection, Your Honor. Objection. May we approach?



The Court: Okay.





(Bench conference as follows:)



Ms. Marshall: Your Honor, the government knows in this case that my client asserted his right to have counsel at his -- there is a case, I believe, that says that he is not required to tell the police anything. So I think that that question is totally improper.



The Court: I don't follow you. You mean when they asked him where are your friends he doesn't have to answer? He didn't have counsel at the time?



Ms. Marshall: Your Honor, he doesn't have to answer any questions.



The Court: Maybe he can't be forced to answer, but I don't think it's objectionable. Overrule the objection.



The prosecutor then proceeded to impeach Mr. xxxxxxx's exculpatory testimony with the fact that he had not told the police about it at the time of his arrest (Tr. 192-193) (emphasis supplied):

Q Now, you didn't tell the police about your two friends when you were arrested, right?



A They didn't ask me.



Q Well, that's information that -- that gun didn't belong to you, right?



A I didn't know it was a gun.



* * *



Q And if [Yarborough and "T" are] the people that box belonged to, you didn't tell the police where to find them, right?



A Will you --



Q You didn't tell the police where to find Yarborough?



A I didn't tell the police anything.



Q Well, why not?



A They didn't ask me.



Q Well, you shouldn't take the rap for something that doesn't belong to you, right?



A I didn't know what rap I was taking until I was arrested for it.



Q Well, you were arrested back in May, right?



A Yeah.



Q From that time to now, you didn't know what you were charged with?



A Oh, yes.



Q Well, you didn't tell anybody where to find Yarborough?



A Ain't nobody asked me.



Q You didn't even want to tell anybody to help your defense? You didn't want to ask Yarborough to come testify for you?



A I didn't think I needed Yarborough to come testify for me.



Q That's because that was your gun, right?



A No, ma'am.

In the government's closing, the prosecutor again relied on Mr. xxxxxxx's post-arrest silence to rebut his exculpatory trial testimony. When defense counsel again objected, she was chastised both before the jury and at the bench (7/28 Exc. 13-16) (emphasis supplied):

Ms. Destura: . . . Now, the last that is important for you is to take the testimony of the defendant and basically whether you believe it. What we would just ask you to do is to see whether or not you really believe that story. . . .



What does he tell you? . . .



. . .



So he runs, and the only reason he can tell you is that he's paranoid. Here is a person who is paranoid, who didn't decide to be there with his friends at that time, didn't even know what he was touching and really wasn't doing anything wrong, and he's paranoid and is running from the police. And then he doesn't even tell the police anything about Yarborough or Tyrone. And Yarborough only --



Ms. Marshall: Objection, Your Honor.



The Court: I overruled that once.



Ms. Marshall: Yes, Your Honor.



The Court: Don't you ever comply with the court's ruling, Ms. Marshall?



Ms. Marshall: Yes, Your Honor.



The Court: Didn't I say once that it was perfectly appropriate to talk about that?



Ms. Marshall: Your Honor, may we approach?



The Court: Come up.



(Bench conference as follows:)



The Court: Didn't I say once that was perfectly all right?



Ms. Marshall: Yes, Your Honor.



The Court: Are you simply trying to destroy opposing counsel's argument? Is that what your purpose is?



Ms. Marshall: No, Your Honor. Is is clear from the Court of Appeals if you do not object at each time that a particular --



The Court: During the arguments? Is that the Court [sic] what the Court of Appeals said, that you have to object during the arguments so as to just destroy her flow of words?



Ms. Marshall: I did it quietly and as quietly as I could. I objected just because I know that --



The Court: I have ruled on that matter, haven't I?



Ms. Marshall: Yes, Your Honor.



The Court: Have I previously ruled on that matter?



Ms. Marshall: Yes, Your Honor.



The Court: Have a seat. I am disappointed in you. You're a smart person and good lawyer. You're up to the same old tricks. I had hoped you had gotten over that. All right. Let's proceed.



(Bench conference concluded.)



The Court: You may proceed.



Ms. Destura: Thank you, your honor. He didn't even tell the police about Mr. Yarborough, who apparently lives three houses away from the store.



5. The Jury Instructions

Both Mr. xxxxxxx and the government requested that the court charge the jury using the Criminal Jury Instructions for the District of Columbia (4th ed. 1993) ("Red Book") (A. 12-17). However, without warning the parties that he would not be following those pattern instructions, the trial court, for the most part, instructed the jury extemporaneously, rather than from any prepared text. Relevant to this appeal are certain instructions in which the court mischaracterized the evidence so as to cast the jury's ultimate determination in terms of a simple credibility contest between the government and defense witnesses that should be decided by reference to a preponderance standard of proof. In instructing the jury on their task, the court explained (7/28 Exc. 28) (emphasis supplied):

You, on the other hand, as I indicated, are the judges of the facts. What that means briefly is that you have to decide what happened on May the 4th. We heard two diametrically opposed stories on what happened and you have to decide what really happened.

The court proceeded to explain what is and is not evidence and to state various rules with respect to how to analyze the evidence. The court then continued as follows (7/28 Exc. 31-32) (emphasis supplied):

Now, credibility, as I mentioned, I think, the word several times, is one of the most important functions that you perform. In this trial, as in most trials, you hear one story from one set of witnesses and you hear the exact opposite from another set of witnesses. In almost every trial that I have ever conducted that has been true. You have to make a decision who is to be believed. Which side, which witnesses are telling the truth. I have no legal magic, principles, as to how that is to be done. It is to be done on the basis of your experience in life, your common sense, which story is more likely to be true than the other, which witness seems to be telling the truth and which one doesn't. As I said, it goes strictly on the basis of experience and common sense.

Later, when the court instructed on the elements of the offense, he told the jury (7/28 Exc. 35-36) (emphasis supplied):

There are three parts, three elements to this. For our present purposes, the first is the most important, although you must consider all three. But the first, which I will give you right now, is the most important. Namely, the government must prove as the first element that the defendant possessed this firearm, that is a short barrel or sawed-off shotgun.



* * *



[I]f the defendant had actual possession of the shotgun that you saw in evidence yesterday, I guess it was, if he had it and carried it around either openly or in this box, assuming you find that he had the box in his possession, then it would be actual possession and the first element would have been satisfied.



After explaining constructive possession, joint possession, and mere presence, the court continued (7/28 Exc. 36-37) (emphasis supplied):

Now, the other two elements are not -- they must be proved, but I suggest to you they are probably not as important in the context of this case. The government must prove as a second element that if the defendant had possession he had so knowingly, that he was aware of his

possession and didn't have possession out of mistake or somebody put it in his pocket or that kind of thing.



The third element that the government must prove beyond a reasonable doubt is that the shotgun had not been registered by him as required by law. We had testimony it was not registered.

At the conclusion of the court's instructions, defense counsel approached the bench to object to the court's remarks as to the last two elements, particularly the "knowingly" element (7/28 Exc. 37-38):

Ms. Marshall: One, Your Honor, in terms of the knowingly. The court indicated that it did not think it was as -- that the last two elements were as important in terms of the defense. I think that the knowingly issue is one that we were contesting, so that I think --



The Court: He didn't know there was a shotgun?



Ms. Marshall: Right. I think that that was part of --



The Court: Your defense is that he never had the shotgun in his possession. Isn't that your defense?



Ms. Marshall: Well, Your Honor, there was --



The Court: Is that your defense?



Ms. Marshall: That he didn't have it in his full possession, but he acknowledged on the stand -- he did not deny that his print was there so --



The Court: All right. I will give the instruction. I will give it. I will say something more about that.

However, when the judge addressed the jury he merely repeated the three elements, without in any way recanting his earlier comments about their relative importance (7/28 Exc. 38):

Well, again just to recapitulate, it is your determination (A), did the defendant have possession of the shotgun; (B), did he have knowing possession of the shotgun; and number three, or (C), did the defendant -- was the shotgun registered to him as required by law.



SUMMARY OF ARGUMENT

The prosecutor's use of Mr. xxxxxxx's post-Miranda silence to impeach his exculpatory explanation concerning Mr. Yarborough and "T" was a flagrant violation of the Supreme Court's ruling in Doyle v. Ohio, 426 U.S. 610 (1976). The prosecutor persisted in this most basic due process violation in the face of timely objections, repeating it during both her cross-examination of Mr. xxxxxxx and her closing argument. Because the government cannot demonstrate that this constitutional error was harmless beyond a reasonable doubt, this Court must grant Mr. xxxxxxx a new trial.

By asking Mr. xxxxxxx to pass judgment on the credibility of Officer Scippio, the trial court in this case engaged in cross-examination that would have been improper even if it had been conducted by the prosecutor. Coming from the court, the prejudical questioning was a devastatingly unfair blow to the defense. The court's questioning was particularly damaging to Mr. xxxxxxx in that it distorted the defense evidence, setting up a false choice for the jury between two versions of events that were not in fact "exact opposite[s]" (7/28 Exc. 31).

Mr. xxxxxxx' conviction must also be reversed because it is reasonably likely that the jury understood the court's instructions to allow conviction based on less than proof beyond a reasonable doubt. The court instructed the jurors that they had heard "two diametrically opposed stories" (7/28 Exc. 28) and that they had to decide "which side" was "telling the truth" (7/28 Exc. 32). These instructions alone, which framed the jury's decision as a simple comparative credibility choice, improperly diluted the government's burden of proof. By then telling the jurors that they must decide "which story is more likely to be true than the other" (7/28 Exc. 32), the court actually told the jury to weigh the competing evidence against a preponderance standard -- a plain violation of Mr. xxxxxxx's due process rights.

ARGUMENT

I. THE PROSECUTOR DEPRIVED MR. xxxxxxx OF DUE PROCESS WHEN SHE USED MR. xxxxxxx'S POST-MIRANDA SILENCE TO IMPEACH HIS EXCULPATORY TESTIMONY IN VIOLATION OF DOYLE v. OHIO.

A. Standard of Review.

Because defense counsel objected to the government's use of Mr. xxxxxxx's post-Miranda silence to impeach him and objected again when the prosecutor used that silence against Mr. xxxxxxx in closing argument, both due process violations are preserved for full appellate review. Mr. xxxxxxx's conviction must be set aside unless the government can prove beyond a reasonable doubt that the error was harmless. Brecht v. Abrahamson, 113 S. Ct. 1710, 1717-18 (1993); Chapman v. California, 386 U.S. 18, 24 (1967).

B. The Prosectuor's Flagrant Doyle Violation Requires Reversal of Mr. xxxxxxx's Conviction.

"The use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." Doyle v. Ohio, 426 U.S. 610, 619 (1976). See also Brecht, 113 S. Ct. at 1717 ("Under the rationale of Doyle, due process is violated whenever the prosecution uses for impeachment purposes a defendant's post-Miranda silence.").

In cross-examining Mr. xxxxxxx, the prosecutor in this case impeached his exculpatory version of events by repeatedly asking Mr. xxxxxxx to explain why, "if they're the people that box belonged to," he had not told the police at the time he was arrested about Mr. Yarborough and "T" and where they could be found (Tr. 191-192). Then, in arguing to the jurors that they should reject Mr. xxxxxxx's testimony and find him guilty, the prosecutor again relied on Mr. xxxxxxx's post-Miranda silence concerning Mr. Yarborough and "T" as being inconsistent with his current story. See 7/28 Exc. 15 ("And then he doesn't even tell the police anything about Yarborough or Tyrone."); id. at 16 ("He didn't even tell the police about Mr. Yarborough, who apparently lives three houses away from the store.").

This case is clearly controlled by Doyle. In that case, Doyle and Wood were charged with selling marijuana to a police informant. They were arrested near the scene of the alleged sale and given Miranda warnings. Id. at 612. At their separate trials, the defendants testified to an exculpatory version of the transaction, under which they claimed to have been framed by the informant "buyer." Each defendant was cross-examined by the government regarding his failure to tell the police this exculpatory version shortly after his arrest. The Supreme Court reversed the convictions, reasoning that "[the] assurance [that silence will carry no penalty] is implicit to any person who receives the [Miranda] warnings" and "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." 426 U.S. at 618. Mr. xxxxxxx's prosecutor -- knowing that Mr. xxxxxxx had been informed of his Miranda rights at the time of his arrest and had declined to waive them -- repeatedly engaged in precisely this type of prohibited impeachment.

The government cannot show that this flagrant constitutional violation was harmless beyond a reasonable doubt, i.e., that in the context of this case it was "so unimportant and insignificant" that it "may, consistent with the Federal Constitution, be deemed harmless." Brecht, 113 S. Ct. at 1717, quoting Chapman v. California, 386 U.S. 18, 22 (1967). See Singleton v. United States, 488 A.2d 1365, 1370 (D.C. App. 1985) ("Because the nature of a Doyle violation is so egregious and so inherently prejudicial, reversal is the norm rather than the exception."), citing Williams v. Zahradnick, 632 F.2d 353, 361 n.10, 363 (4th Cir. 1980); United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir. 1978) (""[T]he comment upon silence of the accused is a crooked knife and one likely to turn in the prosector's hand. The circumstances under which it will not occasion a reversal are few and discrete.").

In United States v. Anderson, 498 F.2d 1038, 1044-45, 1046 (D.C. Cir. 1974), aff'd sub nom., United States v. Hale, 422 U.S. 171 (1975), this Court held that even Judge Gesell's sua sponte curative instruction was not sufficient to render the use of the defendant's post-arrest silence harmless beyond a reasonable doubt. The government did not challenge that harmlessness ruling in the Supreme Court. Hale, 422 U.S. at 175 n.3. (10) See also Morgan v. Hall, 569 F.2d 1161, 1164-67 (1st Cir.) (same), cert. denied, 437 U.S. 910 (1978). Here, not only did the trial judge not give a curative instruction, he emphasized the prejudicial argument when he responded to defense counsel's objection by stating in front of the jury, "Didn't I say once that it was perfectly appropriate to talk about that?" 7/28 Exc. 15.

Because both Officers Scippio and Crews lost sight of the person carrying the Heineken box before Mr. xxxxxxx was apprehended, Mr. xxxxxxx's testimony presented a plausible defense of mistaken identity -- an explanation (consistent with much of the government's case) of how he came to touch the gun and to be running down the alley where he was apprehended. The prosecutor's use of Mr. xxxxxxx's post-Miranda silence to impeach that exculpatory account was devastating to his defense. As the Supreme Court explained in Hale, evidence of silence at the time of arrest "has a significant potential for prejudice" because the "the jury is likely to assign much more weight to the defendant's previous silence than is warranted." 422 U.S. at 180. See United States v. Canterbury, 985 F.2d 483, 487 (10th Cir. 1993) (Doyle violation not harmless beyond a reasonable doubt where prosecutor's questions regarding defendant's failure to present his exculpatory story at the time of arrest "attacked the heart of his defense"); Williams v. Zahradnick, 632 F.2d 353, 361 n.10 (4th Cir. 1980) ("When refutation of an exculpatory defense is the purpose, attack is on the jugular of the defendant's case, his innocence, and it is rarely declared harmless.")

Given that even after the prosecutor's improper impeachment and argument the jury deliberated for the better part of a day (almost as long as the trial itself) (11) before finding Mr. xxxxxxx guilty, the government cannot show that its Doyle violation was harmless beyond a reasonable doubt. See United States v. Houser, 746 F.2d 55, 63 (D.C. Cir. 1984) ("The jury's difficulty in reaching a decision strongly suggests that, under the specific circumstances of this trial, the error cannot be harmless.").

II. THE TRIAL COURT DEPRIVED MR. xxxxxxx OF A FAIR TRIAL BY ASKING HIM IF A POLICE OFFICER HAD LIED -- AN INFLAMMATORY QUESTION THAT POLARIZED THE PARTIES AND MISCHARACTERIZED THEIR TESTIMONY AS "DIAMETRICALLY OPPOSED."

A. Standard of Review.

Under Rule 614(c), Fed. R. Evid., "[o]bjections to . . . interrogation by [the court] may be made at the time or at the next available opportunity when the jury is not present." Because defense counsel objected to the court's interrogation of Mr. xxxxxxx about Officer Scippio's credibility at the first bench conference after the questioning took place, her objection was timely and Mr. xxxxxxx's challenge to the court's questioning is preserved for full appellate review. Rulings concerning cross-examination are generally reviewed for abuse of discretion. See, e.g., Howard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967). B. The Court's Cross-Examination Of Mr. xxxxxxx Was Patently Improper And Prejudicial.

After Mr. xxxxxxx testified clearly that he had not run with the others into the alley described by Officer Scippio, but instead had continued running eastbound on I Street all the way to 10th Street before turning north to K Street (Tr. 175, 196), the court asked Mr. xxxxxxx if he had had to climb over any fences as he ran (Tr. 196). When Mr. xxxxxxx said he had not, the court proceeded to ask Mr. xxxxxxx the following leading (and misleading) questions (Tr. 196-197) (emphasis supplied):

THE COURT: It didn't exist, no fence is there?



THE WITNESS: I never went through an alley or anything until I got to 11th Street, the alley right next to my house, and there wasn't no fence.



THE COURT: The officer made it all up?



THE WITNESS: Yes, Ma'am -- Yes, Sir.



THE COURT: Okay.

The first question was unfair because it asked Mr. xxxxxxx to testify about the existence of a fence that, according to his testimony, he would have had no occasion to see. The question distorted the defense evidence by implying that under Mr. xxxxxxx's version he should have seen the fence. Mr. xxxxxxx stood his ground, however, and explained again that he had never been in the alley with the fence. The court, ignoring this explanation, and ignoring the possibility that the officer had mistakenly confused Mr. xxxxxxx with one of his companions, continued to question Mr. xxxxxxx on the premise that -- unless Officer Scippio had "made it all up" -- Mr. xxxxxxx had climbed a fence.

The court's point-blank question as to whether Officer Scippio was lying would have been "patently improper" even if asked by the prosecutor. Scott v. United States, 619 A.2d 917, 924-925 (D.C. App. 1993) ("We have repeatedly contemned questioning by counsel which prompts one witness to suggest that he or she is telling the truth and that contrary witnesses are lying."). See also United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991) ("The 'was-the-witness-lying' question framed by the prosecutor . . . should never have been posed and defendant's objection to it was justifiably sustained."); United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987) ("Prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper.") (12)

"It is every bit as improper, and probably more so, for a trial judge to require a witness, especially a defendant, to characterize the testimony of a government agent as right or wrong." United States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988) (emphasis supplied). In Victoria, the Second Circuit reversed a defendant's conviction where the trial court had elicited from the defendant the inconsistency between what he had said and what the DEA agent had said concerning the defendant's attire at the time of his arrest and then asked, "So, the agent was wrong?" The Court of Appeals held that "[t]his error, combined with [other cross-examination suggesting that the court did not find the defendant worthy of belief], served to deprive [the defendant] of a fair jury trial." Id. (13)

Similarly, the court in Richter reversed the defendant's conviction where the prosecutor asked the defendant to testify that an FBI agent was "either mistaken or lying." 826 F.2d at 208. Because (unlike here) the improper cross-examination was not objected to, and since (unlike here) the defendant had been given an opportunity to brand the agent's testimony as either a lie or a mistake, the Richter court did not reverse on that ground alone. Id. Rather, the court found the error reversible in combination with prosecutorial comments highlighting the improper cross-examination in closing, "[t]he obvious purpose of [which] was to frame the controversy as if it were Richter against the FBI." Id. at 209.

Here, the defendant was not given the option of labelling Officer Scippio's testimony as simply "wrong," Victoria, 837 F.2d at 54, or "mistaken," Richter, 826 F.2d at 208. Rather, the court asked Mr. xxxxxxx whether the officer had intentionally fabricated his testimony (Tr. 197): "The officer made it all up?" Then, despite defense counsel's timely objection and insistence that "I don't think we basically are just saying they made everything up" (Tr. 198), the court proceeded to highlight the improper questioning in his instructions to the jury:

We heard two diametrically opposed stories on what happened and you have to decide what really happened. 7/28 Exc. 28.



In this trial, as in most trials, you hear one story from one set of witnesses and you hear the exact opposite from another set of witnesses. In almost every trial that I have ever conducted that has been true. 7/28 Exc. 31.



The court then informed the jurors that they would have to decide "[w]hich side" was "telling the truth" (7/28 Exc. 32).

The obvious purpose of the court's questioning and related comments was to "frame the controversy as if it were [xxxxxxx] against the [Metropolitan Police Department]." Richter, 826 F.2d at 209. Such polarizing of the parties by the court will always risk inflaming the jury against the criminal defendant. It was indisputably unfair in this case where the defense testimony in

fact allowed for the possibility that the officers had not lied, but simply made an honest mistake.

III. THE TRIAL COURT'S INSTRUCTIONS THAT THE JURY WAS TO DECIDE "WHICH SIDE" IS "TELLING THE TRUTH" AND "WHICH STORY IS MORE LIKELY TO BE TRUE THAN THE OTHER" DEPRIVED MR. xxxxxxx OF A VERDICT OF GUILT BEYOND A REASONABLE DOUBT. (14)



A. Standard Of Review.

Jury instructions in criminal trials are unconstitutional if "there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship (15) standard [of proof beyond a reasonable doubt]." Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994), citing Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991).

Where, as here, defense counsel has not objected to the particular portion of the court's jury instructions challenged on appeal, this Court has reviewed the instructions for plain error under Fed. R. Crim. P. 52(b). United States v. Merlos, 8 F.3d 48 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1635 (1994) (Merlos II). The plain error inquiry normally requires this Court to determine:

(1) whether there is unwaived legal error, (2) whether the error is "plain" or "obvious" under current law, and (3) whether the error was prejudicial.

Merlos II, 8 F.3d at 50, citing United States v. Olano, 113 S. Ct. 1770, 1777 (1993). In Merlos II, however, this Court held that in light of the Supreme Court's decision in Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), holding that a constitutionally deficient reasonable doubt instruction never can be harmless error, a defendant whose lawyer failed to object to such an instruction need not show prejudice in order to obtain a reversal of his conviction:

[T]he central premise of Sullivan applies with equal force in the plain error context: where the error consists of a misdescription of the reasonable doubt standard, the court cannot assess the impact of the error on the outcome of the trial because there has been no jury finding of guilt beyond a reasonable doubt in the first instance.

8 F.3d at 51. See also United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir.) ("under Sullivan, a constitutionally deficient reasonable doubt instruction is presumptively prejudicial"), cert. denied, 115 S. Ct. 98 (1994); United States v. Colon-Pagan, 1 F.3d 80, 81-82 (1st Cir. 1993). The Merlos II Court found nothing in Sullivan that could "be read to alter either of the remaining prongs of plain error review" and affirmed Merlos's conviction because the error of which he complained was not "plain" under the current law at the time of his trial. Id.

Because the error in this case was "plain" under the law at the time of Mr. Rawling's trial (see Section C, infra at 42-43), appellant can satisfy the "plain error" standard applied by this Court in Merlos II. Appellant respectfully suggests, however, that under the reasoning of Sullivan, an Olano-type "plain error" analysis -- even one that requires no showing of prejudice, as in Merlos II -- simply cannot be performed if, due to a constitutionally defective jury charge, the defendant was deprived of a jury verdict within the meaning of the Sixth Amendment. As the Merlos II Court noted, the Sullivan Court "could not, of course, speak to the obviousness prong of Olano, for obviousness is not an element of harmless error review." 8 F.3d at 51. Reading Sullivan and Olano together, however, it becomes clear that instructional errors of the type in Sullivan cannot be left uncorrected merely because they are not "obvious."

The Olano Court explained that Rule 52(b) defines a category of "forfeited-but-reversible error" and that, if a forfeited error is not "plain" (in the sense of "obvious"), it cannot be corrected. 113 S. Ct. at 1776 & 1777. The Court emphasized the difference between "forfeiture," which is the failure to timely assert a right, and "waiver," which is the intentional relinquishment or abandonment of a known right. Id. at 1777. Sullivan teaches that when the jury is given a constitutionally defective reasonable doubt charge, "there has been no jury verdict within the meaning of the Sixth Amendment." 113 S. Ct. at 2082. The right to a jury verdict is the kind of fundamental right that can be lost only if it is knowingly "waived" by the defendant; it cannot be lost through mere "forfeiture" by the defendant's attorney -- regardless of whether the violation of that right is "obvious" at the time. (16) A jury verdict that has been "vitiate[d]" because of a misdescription of the burden of proof, Sullivan, 113 S. Ct. at 2082, can never properly be affirmed. Therefore, although Mr. xxxxxxx can in fact demonstrate that the error in his case was "obvious," see pp. 42-43, infra, it is appellant's position that errors of the kind in this case are not properly subject to any "plain error" analysis -- even the modified version applied in Merlos II.

B. There Is A Reasonable Likelihood That Mr. xxxxxxx's Jury Understood The Instructions To Allow Conviction Based On Less Than Proof Beyond A Reasonable Doubt.



The Supreme Court has been insistent on the "vital role" of the charge on reasonable doubt and this Court, too, "ha[s] been insistent that the charge not be weakened." United States v. Merlos, 984 F.2d 1239, 1241 (D.C. Cir. 1993) (Merlos I), citing Cage v. Louisiana, 498 U.S. 39, 40 (1990). A court's jury instructions violate due process if there is a "reasonable likelihood" that the jury understood the instructions to allow conviction based on less than proof beyond a reasonable doubt. Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994). Here, having presented the jury with a false choice between "two diametrically opposed stories" (7/28 Exc. 28), the court told the jurors that they must decide "[w]hich side" is "telling the truth" (7/28 Exc. 32) and "which story is more likely to be true than the other" (id.). Looking at the instructions as a whole, it is reasonably likely that the jurors in this case interpreted those instructions as authorizing them to convict Mr. xxxxxxx if they believed the government's testimony was "more likely" to be true than Mr. xxxxxxx's testimony -- a simple preponderance standard of proof.

Even the court's directive that the jury was to decide who was telling the "truth" (7/28 Exc. 32) and "what happened on May the 4th" (id. at 32) distorted the burden of proof by suggesting incorrectly that the jury had to make a finding of historical fact. The most recent edition of the Red Book deleted from the instruction on Credibility of Witnesses (Instruction 2.11) the sentence, "If there is any conflict in the testimony, it is your function to resolve the conflict and to determine where the truth lies." The commentary explaining that deletion aptly describes the flaw in the instructions here (Red Book at p. 82):

Although that language was included in these instructions since the 1966 edition and there has been no caselaw addressing whether such an instruction is appropriate, that language suggested that the jury was obligated to make an ultimate determination of historical truth. In fact, the jury is only obliged to determine whether the evidence, including the testimony of witnesses, establishes guilt beyond a reasonable doubt. The jury is free to conclude that the government has failed to meet its burden of proof without the jury ever "determin[ing] where the truth lies." Nor need the jury "resolve conflict[s]" in the testimony; the jury is free to leave any such conflict unresolved, and may indeed find that the very existence of such a conflict, resolvable or not, diminished the strength of the government's case.



See also United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5th Cir.) (instruction that jury's sole interest is to "seek the truth from the evidence in this case" would be error if used in explaining concept of proof beyond a reasonable doubt; suggesting that trial courts may wish to delete it from their instructions altogether), cert. denied, 114 S. Ct. 2138 (1994).

Here, of course, the court went much further than simply telling the jury to determine the "truth." He set that determination up as a simple credibility choice -- the jury must decide "[w]hich side" was "telling the truth." Suggesting that kind of analysis to a criminal jury has been condemned as "counter to the requirement of proof beyond a reasonable doubt." United States v. Pine, 609 F.2d 106, 108 (3d Cir. 1979). In United States v. Stanfield, 521 F.2d 1122, 1125-1126 (9th Cir. 1975), the Ninth Circuit reversed the defendant's conviction where the court's opening remarks to the jury "put the issue in terms of which set of facts the jury would believe and overemphasized that the jury would be required to judge from the two theories of the case 'which is right and which is wrong.'" Id. at 1125. By asking the jury to determine which version was the "truthful version," the court "obscured" the correct standard of proof (id.) (emphasis added):

The test is, of course, not which side is more believable, but whether, taking all of the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt.

The Stanfield court reversed despite the fact that the judge had carefully instructed the jury on the presumption of innocence and requirement of proof beyond a reasonable doubt and accurately defined reasonable doubt. Id. at 1126. See also United States v. Oquendo, 490 F.2d 161, 165 (5th Cir. 1974) (reversing where the court cast the jury's ultimate determination whether to convict or acquit as a credibility choice between the defendant and the government's informer); United States v. Williams, 473 F.2d 507, 511 (5th Cir. 1973) (reversing where court's instructions "erroneously narrowed the credibility issue to an all or nothing proposition").

The error here is analogous to informing the jury that, in order to acquit, they must find that the government's witnesses are lying. This, too, has been held to distort the government's burden of proof. See United States v. Reed, 724 F.2d 677, 681 (8th Cir. 1984) (prosecutor's argument that if defendant was telling truth, government agents must have lied, distorted burden of proof; conviction affirmed where objection sustained and curative instruction given); United States v. Vargas, 583 F.2d 380, 384, 386-388 (7th Cir. 1978) (same argument was plain error; error required reversal, if not individually, at least when taken with second improper comment). As the Seventh Circuit explained in Vargas, 583 F.2d at 387 (emphasis supplied):

Even assuming that the testimony of the prosecution and defense witnesses contained unavoidable contradictions, it of course does not follow as a matter of law that in order to acquit Vargas the jury had to believe that the agents had lied. If the jurors believed that the agents probably were telling the truth and that Vargas probably was lying . . . it would have been proper to return a verdict of not guilty because the evidence might not be sufficient to convict defendant beyond a reasonable doubt. To tell the jurors that they had to choose between the two stories was error.



The error is more egregious where the defendant's account does not in fact "contradict" the police testimony in the sense of suggesting an intentional fabrication, but instead provides an alternative scenario that allows for the possibility of good faith error by the police. Here, the court's description of the testimony as "diametrically opposed," with only one "side" telling the "truth," was in fact a mischaracterization of the evidence that made the burden-diluting choice set up by the court all the more improper. (17)

The error in Mr. xxxxxxx's instructions goes well beyond the error in many of the cases cited. In United States v. Pine, 609 F.2d 106, 108 (3d Cir. 1979), for example, the Third Circuit held that an instruction telling the jurors that "[t]he basic question is whether the Government's witnesses are telling the truth or whether the defendants and their witnesses are telling the truth" improperly diluted the government's burden, id. at 107-108, but affirmed because the trial judge later gave a "full and forceful charge on the requirement of proof beyond a reasonable doubt." Id. at 109. The error in this case was much more egregious and was not cured by stock instructions. Judge Greene went beyond the Pine error of casting the "basic question" as which side is telling the truth by actually giving the jurors a quantitative standard with which to make their decision: By posing the question as "which story is more likely to be true," the court told the jury to decide the case on the preponderance of the evidence.

Given the seriousness of the court's error, the fact that the judge did read to the jury some approved definitions of reasonable doubt, (18) cannot save the instructions in this case. The issue is whether, "taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury." Holland v. United States, 348 U.S. 121, 140 (1954) (emphasis added). The existence of an accurate statement of the burden of proof somewhere in the instructions does not render the instructions constitutional if it is "reasonably likely" that the jury relied to some degree on the faulty standard during its deliberations. Merlos I, 984 F.2d at 1242, citing Estelle v. McGuire, 502 U.S. 62, 72 (1991); Boyde v. California, 494 U.S. 370, 380 (1990). See also United States v. Rhone, 864 F.2d 832, 837 (D.C. Cir. 1989) (reversing where, "[a]t the very least, the instruction confused the jury on the very central issue of intent"); United States v. Alston, 551 F.2d 315, 319 (D.C. Cir. 1976) ("Although the district court properly reminded the jury on several occasions of the Government's burden of proof, we are unwilling to presume that the ambiguity created by [other incomplete and/or misleading instructions] was thus dissipated"). (19)

By the time the jurors heard the court read the Red Book reasonable doubt definition, they already had an improperly low burden of proof in mind. Faced with a definition of reasonable doubt that the government has recently conceded is "patent[ly] circular[]" and "imprecise," Brief for Appellee in United States v. Ratiff, No. 93-3175, at 13-14, the jurors were reasonably likely simply to fall back on the bottom-line, plain-English, standard the judge had already provided: "which story is more likely to be true than the other"? The court's statement at the end of the reasonable doubt definition that the government has the burden of proving every element of the offense beyond a reasonable doubt "as best I could explain that to you" (7/28 Exc. 35) only highlighted the imprecision of that instruction. (20)

Mr. xxxxxxx's jurors were especially likely to be drawn to the faulty instruction, which because of its "nonlegal character might have been more easily comprehended and remembered than the standard instruction." United States v. Pinkney, 551 F.2d 1241, 1245 (D.C. Cir. 1976). In Rhone, this Court held that the fact that the trial judge "emphasized" the flawed instruction "by delivering it in the form of an afterthought," at the end of an otherwise flawless and unambiguous instruction read from the Red Book, reinforced its conclusion that the erroneous instruction was not harmless: "[W]e find it likely that the jury was sufficiently conscious of the instruction to have given it greater weight than a cold reading of the record might suggest." 864 F.2d at 837. Here, one of the few instructions that the court read from the Red Book was the dry, "patent[ly] circular[]," and "imprecise," reasonable doubt definition. The extemporaneous nature of the court's instruction summing the case up as a simple credibility battle to be decided on the basis of "which story is more likely to be true than the other," likewise served to "emphasize" that improper standard. Id.

The prosecutor aggravated the court's error by likewise casting the case as a straightforward "they said/he said" decision in her closing argument: "You will have to determine whether you believe [Mr. xxxxxxx] or whether you believe the police officers in this case" (7/28 Exc. 3). That argument added to the likelihood that the jury understood their task as a comparative credibility evaluation and further distinguishes this case from West, in which the Eighth Circuit relied in part on the fact that the government reinforced the proper burden of proof in its closing argument (28 F.3d at 752-753).

Finally, the court's suggestion that the last two elements of the charged offense were "probably not as important" as the first element (7/28 Exc. 36-37) must also be considered in determining whether there is a reasonable likelihood that the instructions as a whole were understood as requiring less than proof of each and every element beyond a reasonable doubt. When defense counsel objected to that portion of the instructions and explained that Mr. xxxxxxx's was contesting the "knowingly" element of the offense, the court agreed to take curative action (7/28 Exc. 37-38). However, the court's further statements did nothing to alter the jury's understanding that two of the elements were less "important" (id. at 38). These remarks are just one more example of the mixed messages Mr. xxxxxxx's jury received with respect to what the government had to prove and by what standard. "Taken as a whole," the instructions clearly failed to "correctly convey[] the concept of reasonable doubt to the jury." Holland, 348 U.S. at 140.

C. The Error Was "Plain."

With respect to whether the error in this case was "plain" in the sense of being "obvious" under current law, "the relevant inquiry is whether a court has ever disapproved the instruction (or any synonymous phrase) or any challenged portion thereof." Merlos II, 8 F.3d at 51 (emphasis removed). This Court affirmed the conviction in Merlos II because, before Merlos I, "we had never previously held that the phrase 'strong belief' impermissibly dilutes the reasonable doubt instruction." Id. Merlos I had involved an examination of the common meaning of the word "belief," along with the word "strong," and a judicial conclusion that, together, they did not add up to "beyond a reasonable doubt." This case is entirely different: It has always been the law that a "more likely to be true" standard is far below proof beyond a reasonable doubt.

More than a century ago, Chief Justice Shaw of the Massachusetts Supreme Court formulated a reasonable doubt instruction that remains the basis for many modern instructions and that included the following (emphasis supplied): "[I]t is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary." Commonwealth v. Webster, 59 Mass. 295, 320 (1850), quoted in Victor v. Nebraska, 114 S. Ct. at 1244. The Federal Judicial Center pattern reasonable doubt instruction, cited with approval by Justice Ginsburg in Victor, 114 S. Ct. at 1253 (Ginsburg, J., concurring), makes the same obvious point:



Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that.

Federal Judicial Center, Pattern Criminal Jury Instructions 17-18 (1987) (Instruction 21) (emphasis supplied).

This Court held long ago that "[a]n instruction central to the determination of guilt or innocence may be fatally tainted by even a minor variation which tends to create ambiguity." United States v. Alston, 551 F.2d 315, 321 (D.C. Cir. 1976). Here, the use of the "more likely to be true" formulation was more than a "minor variation" from the proper standard. It cut to the heart of the burden of proof in a way that is obvious to anyone who knows the difference between the criminal and civil burdens of proof.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court for a new trial.



Respectfully submitted,





A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________________

LISA D. BURGET

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant xxxxxxx D. xxxxxxx



CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant xxxxxxx D. xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



_________________________________

LISA D. BURGET

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant xxxxxxx D. xxxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C., 20001, this 31st day of March, 1995.



_________________________________

LISA D. BURGET

Assistant Federal Public Defender





1. "A." refers to pages of the Appendix filed with this brief. "Tr." refers to pages of the sequentially numbered transcripts of the suppression hearing and trial proceedings, beginning with page one on July 27, 1993, and ending with page 211 on July 29, 1993. "7/27 Exc." refers to pages of the 51-page separately transcribed excerpt of the voir dire and opening statements. "7/28 Exc." refers to the 41-page separately transcribed excerpt of the closing arguments and jury instructions. All transcript pages cited in this brief are reproduced in the Appendix.

2. Officer Scippio testified that the man was "standing with the Heineken beer box underneath his arm" (Tr. 44). Officer Crews testified that "he had it in his hand" (Tr. 82).

3. Officer Crews claimed that he observed the man with the box in front of the store for "roughly a minute" (Tr. 75). Officer Scippio acknowledged that he observed the man for only a few seconds (Tr. 62).

4. Both officers testified that the three men were standing right up next to the market (Tr. 60, 81, 87). Officer Crews estimated that he was approximately seven feet away from the man with the box when he was stopped at the stop sign and three feet away when he pulled through the intersection to the curb in front of the market (Tr. 74). Officer Scippio estimated that he was three to five feet away from the man with the box when the officers parked in front of the market (Tr. 45, 60). The defense investigator testified, however, that the shortest distance between the curb and the market is 29 feet (Tr. 146).

5. Although the prosecutor stated in her opening that Officer Scippio "saw as the box hit the ground a sawed-off shotgun separate from the box when it hit the ground upon impact" (7/27 Exc. 46), it is not clear from his testimony that the officer could see what happened on the other side of the fence.

6. Officer Kapaska originally testified that Mr. xxxxxxx was wearing his jacket when he came around the corner (Tr. 94), but subsequently said the jacket was wrapped up in his hands in such a manner that the officer could not tell whether Mr. xxxxxxx was carrying a weapon (Tr. 95, 99).

7. The expert did not explain how the latent print from the gun could match two different inked fingerprints. See Tr. 122 ("fingerprints are unique and are never duplicated on any other finger"). The expert did explain that she determines a match by finding ten "points of identity" between two prints. She explained that each fingerprint analyst uses his or her own judgment as to how many points of identity are needed to make a match -- "like whatever points you feel comfortable with" (Tr. 125-126) -- and that someone else might feel comfortable with a number higher or lower than ten (Tr. 129). She further testified that her identification was verified by someone else in her office with the same level of experience she had (Tr. 129-130).

8. James xxxxxxx testified that he had worked at xxxxxxx Auto Mechanic for "about five years off and on" (Tr. 152). His brother and roommate, Daniel xxxxxxx, who worked at a neighborhood pharmacy, testified that James xxxxxxx "doesn't work" except for "mechanic work and stuff like that" around the house because he is disabled (Tr. 170). When asked by the prosecutor whether he had ever heard about his brother working "at a place called Public Works or some kind of business like that," Daniel xxxxxxx testified, "No. I didn't know anything about it" and explained that he is not home during the day to know what his brother is doing (Tr. 171).

9. Mr. xxxxxxx recalled that his hand briefly touched something "cold" and "hard" that could have been the side of the box or something else. He concluded that he must have touched the object inside the box since the government said his fingerprint was on the shotgun the police recovered (Tr. 174, 185, 192).

10. The Hale case was decided under the Supreme Court's supervisory authority over the federal courts. The next Term in Doyle, the Court concluded that the prohibition set forth in Hale against using post-Miranda silence for impeachment was of constitutional dimension.

11. The opening statements did not begin until approximately 2:00 p.m. on July 27, 1993 (Tr. 35-39). The jury recessed to begin deliberating at 4:18 p.m. on July 28, 1993 (Tr. 207). They did not reach a verdict until 1:28 p.m. on July 29, 1993 (A. 18).

12. The prohibition against such questioning arises from the rule against one witness expressing an opinion on the ultimate credibility of another witness. Carter v. United States, 475 A.2d 1118, 1126 (D.C. App. 1984), cert. denied, 469 U.S. 1226 (1985). See also Akitoye, 923 F.2d 221, 224 (1st Cir. 1991) ("it is not the place of one witness to draw conclusions about, or cast aspersions upon, another witness' veracity"). That, of course, was one of the grounds cited by defense counsel in her objection. See Tr. 198-199 ("I don't think that my client would be competent to testify about the mind set of another officer").

13. This was not the only occasion on which the trial court intervened to cross-examine a defense witness in a way that distorted his testimony so as to cast it in an unfavorable light. See supra at pp. 8-10 (quoting court's attempt to make James xxxxxxx's testimony appear internally inconsistent and defense counsel's unsuccessful attempt to approach the bench to object). Another example of prejudicial comment by the court occurred when Mr. xxxxxxx testified on cross-examination that he had run because he "got paranoid" and the court interjected: "Paranoid, like Freud says." Tr. 187. This Court has often held that "the judge must remain 'a disinterested and objective participant in the proceedings,' and principles both fundamental and indestructible in our criminal law exhort him to hold to a minimum his questioning of witnesses in a jury trial." United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.) (citations omitted), cert. denied, 493 U.S. 835 (1989).

14. A challenge to a very similar instruction by Judge Greene is currently before this Court in United States v. Ratiff, No. 93-3175.

15. In re Winship, 397 U.S. 358 (1970).

16. A defendant may of course waive the right to a jury trial and either be tried by a judge or enter a plea of guilty, but only in accordance with strict procedures ensuring that the defendant's waiver is knowing and intelligent. The requirements concerning an "express and intelligent" waiver of a jury trial stated in Patton v. United States, 281 U.S. 276, 312-313 (1930), are perpetuated in Fed. R. Crim. P. 23(a), which mandates that jury cases be tried by a jury "unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." In accordance with Boykin v. Alabama, 395 U.S. 238 (1969), Fed. R. Crim. P. 11(c) requires that, before accepting a plea of guilty, the court must personally address the defendant in open court and determine that he understands that he has "the right to be tried by a jury" and that by pleading guilty "the defendant waives the right to a trial." A defendant cannot lose a right as fundamental as the right to a jury verdict simply through his attorney's failure to object to the deprivation, obvious or not.

17. This Court's decision in United States v. Spencer, 25 F.3d 1105, 1110 (D.C. Cir. 1994), is not controlling. In that case, Judge Greene's statement that the jury must decide which side was lying merely repeated what the parties themselves had argued to the jury. Moreover, the issue raised in Spencer was whether the court's remarks shifted the burden of proof to the defendant, not whether the government's burden had been diluted below proof beyond a reasonable doubt. The Spencer court found no plain error where the defense had repeatedly contended that the police were lying and the court had immediately made clear that the defendant had to prove nothing.

18. The court followed fairly closely the Red Book instructions on Burden of Proof -- Presumption of Innocence (Instruction 2.08) and Reasonable Doubt (Instruction 2.09), except that the court skipped the portion of the first instruction that states: "The burden is on the government to prove the defendant guilty beyond a reasonable doubt. This burden of proof never shifts throughout the trial."

19. The likelihood that the jury was confused is much greater here than it was in United States v. West, 28 F.3d 748 (8th Cir. 1994), in which the Eighth Circuit reversed the district court's grant of a new trial because the trial court had considered a faulty jury instruction in isolation from the charge as a whole. The district court in West had ordered a new trial sua sponte when it realized it had erroneously charged the jury that they were to "find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial." Id. at 749. The Eighth Circuit held that it was not reasonably likely that the jury had applied that instruction to lower the government's burden given that the trial judge 1) explicitly explained the difference between the criminal and civil burdens of proof; 2) gave a proper definition of reasonable doubt; and 3) repeatedly emphasized the reasonable doubt standard from voir dire through the final charge. Id. at 752-53. Here, Judge Greene never explained that the reasonable doubt standard was higher than the "more likely than not" standard of a civil trial. In fact, he never mentioned the reasonable doubt standard at all (with the exception of a brief reference during voir dire directed at those jurors who said they had served on a grand jury) until after the faulty instruction had been given. When he did get to the burden of proof instruction, he described it as "not least important" (7/28 Exc. 33).

20. In United States v. Spriggs, 996 F.2d 320 (D.C. Cir.), cert. denied, 114 S. Ct. 359 (1993), this Court held that Judge Greene's apology for the circularity of the standard reasonable doubt instruction ("some of these legal terms are kind of ridiculous, but that is what a reasonable doubt is") (id. at 326) did not by itself invite the jury to lower the government's burden of proof. This case is different in that it involves the giving of two different standards of proof -- one right, one wrong. Here, the court's "apology" for the elusiveness of the right one, while not enough by itself to lower the government's burden, increased the likelihood that the jury's relied to some degree on the wrong one.