ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. 98-3008

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxx D. xxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF FOR APPELLANT

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. 97-309 (JGP)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant, xxxxxxx D. xxxxxxx, hereby states as follows:

A.Parties and Amici:

The parties below were defendant xxxxxxx D. xxxxxxx and the United States of America. The parties to this appeal are defendant-appellant xxxxxxx D. xxxxxxx and plaintiff-appellee the United States of America. There are no intervenors or amici.

B.Rulings Under Review:

This is an appeal from the judgment of the district court (the Honorable John Garrett Penn), dated January 7, 1998, imposing sentence after conviction for two counts of simple possession of a controlled substance in violation of 21 U.S.C. § 844(a).

In this appeal, appellant seeks review of the district court's refusal to sever ex-felon charges from the drug possession charges and refusal to grant a mistrial following the prosecutor's improper, prejudicial closing argument.

C.Related Cases:

This case has not previously been before this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES 1

JURISDICTION 1

ISSUES PRESENTED FOR REVIEW 1

STATEMENT OF THE CASE 2

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

Disposition in the Court Below 2

B.Statement of Facts 3

i.The Government’s Case-In-Chief 4

ii.The Defense Case 6

SUMMARY OF ARGUMENT 9

ARGUMENT 11

I.THE DENIAL OF DEFENDANT’S MOTION FOR SEVERANCE

WAS AN ABUSE OF DISCRETION WHERE THE DISTRICT COURT FAILED

TO TAKE ADEQUATE STEPS TO PROTECT THE DEFENDANT FROM

THE PREJUDICIAL JOINDER OF EX-FELON CHARGES WITH

DRUG POSSESSION CHARGES.11

A.Standard of Review 11

B.The District Court’s Denial of Severance Was An

Abuse of Discretion in Light of the Inadequate

Precautions Taken 11

II.THE DISTRICT COURT COMMITTED ERROR BY DENYING A MISTRIAL

AND REFUSING TO PROVIDE A CURATIVE INSTRUCTION AFTER

THE PROSECUTOR COMMITTED MISCONDUCT IN CLOSING

ARGUMENT 18

A.The Prosecutor’s Summation And Rebuttal

Summation 18

B.Standard of Review 20

C.The Prosecutor’s Argument Pitting The Jurors

And Their Lawyer (The Prosecutor Himself) Against

The Defense And Smearing Mr. xxxxxxx And His Witness

Prejudiced Mr. xxxxxxx 20

CONCLUSION 27

CERTIFICATE OF LENGTH 27

CERTIFICATE OF SERVICE 27

ADDENDUM

TABLE OF AUTHORITIES

CASES

*Berger v. United States, 295 U.S. 78 (1935)21, 23

Panzavecchia v. Wainwright, 658 F.2d 337

(5th Cir. Unit B 1981) 13, 15

*United States v. Bowie, 142 F.3d 1301 (D.C. Cir. 1998)

11, 13, 14

*United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985)

11, 16

*United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992) passim

United States v. Doe, 860 F.2d 488 (1st Cir. 1988) 23

United States v. Fennell, 53 F.3d 1296 (D.C. Cir. 1995) 15

United States v. Foutz, 540 F.2d 733 (4th Cir. 1976) 10, 16

United States v. Manning, 23 F.3d 570 (1st Cir. 1994),

cert. denied, 117 S. Ct. 147 (1996) 22, 26

United States v. Modica, 663 F.2d 1173 (2d Cir. 1981) 26

United States v. Monaghan, 741 F.2d 1434 (D.C. Cir. 1984) 20

*United States v. North, 910 F.2d 843 (D.C. Cir. 1990) 20

United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980) 17

United States v. Phillips, 401 F.2d 301 (7th Cir. 1968) 11

United States v. Poore, 594 F.2d 39 (4th Cir. 1979)9, 16

United States v. Small, 74 F.3d 1276 (D.C. Cir.),

cert. denied, 517 U.S. 1229 (1996) 20

United States v. Stahl, 616 F.2d 30 (2d Cir. 1980) 23

United States v. Teffera, 985 F.2d 1082 (D.C. Cir. 1993)

16, 17

United States v. Valentine, 706 F.2d 282 (10th Cir. 1983) 15

*United States v. Young, 470 U.S. 1 (1985)21, 23, 26

OTHER AUTHORITIES

Fed.R.Crim.P. 14 12

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________

No. 98-3008

_________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxx D. xxxxxxx, Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

BRIEF FOR DEFENDANT-APPELLANT

xxxxxxx D. xxxxxxx

_____________________________________________

STATUTES AND RULES

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

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. § 3231. A timely notice of appeal having been filed, this Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I.Whether the trial court's refusal to sever the ex-felon charges from the drug charges was an abuse of discretion, especially in light of the inadequate precautions taken to limit the prejudice of the ex-felon evidence.

II.Whether the trial court erred by denying a motion for a mistrial and a motion for curative instructions after the prosecutor told the jury that he represented them in the trial, unfairly smeared the character of the defendant and his only fact witness, and intimidated the jury away from a total acquittal.STATEMENT OF THE CASE

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

Disposition in the Court Below

On August 5, 1997, a grand jury sitting in the District of Columbia returned a three-count indictment against xxxxxxx xxxxxxx. On August 28, 1997, a superseding four-count indictment was filed charging xxxxxxx xxxxxxx with possession of a firearm by a convicted felon (Count One) and possession of ammunition by a convicted felon (Count Two), in violation of 18 U.S.C. § 922(g)(1); and with two counts of simple possession of a controlled substance, in violation of 21 U.S.C. § 844(a) (Counts Three and Four) (A. at 1).

On September 26, 1997, Mr. xxxxxxx moved in writing to sever the firearm and ammunition counts from the controlled substance counts (A. at 3). The motion was heard and orally denied on September 30, 1998 (Tr. 4-21, 31-32), and the district court filed a written order denying the motion on October 20, 1997 (A. at 13).

The charges against xxxxxxx xxxxxxx were heard by a jury commencing on October 1, 1997, before the Honorable John Garrett Penn. On October 6, 1997, the jury returned a verdict of not guilty on one of the firearms charged in Count One and a verdict of not guilty on one set of ammunition charged in Count Two. The jury was unable to reach verdicts as to the second firearm charged in Count One and the second set of ammunition charged in Count Two. The jury returned verdicts of guilty on both counts charging simple possession of a controlled substance (A. at 8).

On October 8, 1997, the district court granted the motion by the United States to dismiss Counts One and Two (A. at 10-12).

On January 7, 1998, Mr. xxxxxxx was sentenced to a total of 18 months imprisonment: twelve months imprisonment on Count Three and six months imprisonment on Count Four to be served consecutively. The court imposed two concurrent one-year terms of supervised release and a $50 special assessment (A. at 14). Mr. xxxxxxx filed a timely notice of appeal (A. at 20).

B.Statement of Facts

The question for the jury was whether, as the government alleged, xxxxxxx xxxxxxx constructively possessed the two guns, ammunition, and small amount of drugs found in an apartment at xxxxx Street, N.E., Washington, D.C.. Mr. xxxxxxx's estranged wife testified that Mr. xxxxxxx no longer lived with her in the apartment, that the drugs and one of the guns were hers, and that the other gun belonged to her adult son who lived with her. Mr. xxxxxxx was convicted only of simple possession of the drugs.

i.The Government's Case-In-Chief

On July 9, 1997, at 7:15 in the evening, officers of the Metropolitan Police Department executed a search warrant at xxxxxxx F Street, N.E., Apt. C-13 (Tr. 220-221). One officer knocked on the apartment door and asked for "Michael." (Tr. 259, 281). Violia xxxxxxx told him that Michael was not home (Tr. 281). The officer left and returned shortly, telling Mrs. xxxxxxx that he had a search warrant (Tr. 281). Mrs. xxxxxxx opened the door for the officers (Tr. 282). Standing in the living room and looking down the hallway, the three lead officers could see xxxxxxx xxxxxxx in the doorway of a bedroom (Tr. 222). The bedroom door was almost entirely open (Tr. 223). The officers could see "almost [Mr. xxxxxxx's] whole torso and arms" (Tr. 222-223), however, the left side of his body and left arm were partially blocked by the door (Tr. 229, 283, 318). The officers had their guns drawn (Tr. 318). They asked Mr. xxxxxxx to show his hands and to step out from the door (Tr. 223). Mr. xxxxxxx looked straight ahead at the officers and raised his right hand, but his left hand remained blocked from the officers' view. Mr. xxxxxxx made a movement behind the door, "some type of gesture," with his left hand (Tr. 223, 230, 251, 283, 321, 329). One of the officers "rushed" Mr. xxxxxxx (Tr. 224). When that officer pushed the bedroom door it came off its hinges and fell on Mr. xxxxxxx, causing Mr. xxxxxxx to fall on the bed (Tr. 224, 249).

The officers searched the apartment and seized the following from the bedroom: On top of a nightstand located just behind the bedroom door was a loaded Ruger 9-millimeter gun wrapped in a pair of pants (Tr. 235, 240, 257, 293, 295), and a box that appeared to have once held a gun and that contained personal papers and a bullet (Tr. 236). Stored beneath the table was a box containing, among other things, two loaded ammunition clips, and two pieces of identification bearing Mr. xxxxxxx's name (Tr. 231, 233, 337, 339). On the floor of the walk-in closet was a small amount of heroin (.0075 grams) and cocaine (.24 grams) and paraphernalia for using heroin (Tr. 234, 289-290, 356-357, 360), and a wallet containing Mr. xxxxxxx's identification (Tr. 288). Between the mattress and the box spring of the bed was a loaded .22 caliber Derringer gun (Tr. 237, 242, 323).

One of the officers testified that Violia xxxxxxx told him that the .22 caliber Derringer belonged to her and that she did not know where the other gun came from (Tr. 245-246). Mr. xxxxxxx was arrested (Tr. 224). Mr. xxxxxxx was not wearing a shirt (Tr. 291, 324). Before he was taken to the police station, he asked the officers to get him a shirt from the bedroom (id.).

Both weapons, the magazine clips, and the bullets were dusted for fingerprints, but none were found (Tr. 346-348).

The parties stipulated that Mr. xxxxxxx had been convicted, in 1974, of an offense punishable by a term of imprisonment exceeding one year (Tr. 373).

ii.The Defense Case

Mr. xxxxxxx's estranged wife, Violia xxxxxxx, testified in the defense case. She testified she and xxxxxxx xxxxxxx became separated approximately June 8th or 9th, 1997, after she discovered that Mr. xxxxxxx was having an affair (Tr. 380-381, 442). Mrs. xxxxxxx had Mr. xxxxxxx's name removed from the lease at xxxxxxx F Street and changed the locks (Tr. 381, 384). After their separation, Mr. xxxxxxx sometimes stayed at a house that Mrs. xxxxxxx had inherited from her deceased grandfather at 5719 Nannie Helen Burrows Avenue, N.E., and sometimes at his mother's house in Virginia (Tr. 375, 411).

Soon after discovering the affair, Mrs. xxxxxxx left town and went to South Carolina with her daughter for two weeks (Tr. 383, 442). While in South Carolina, Mrs. xxxxxxx's son, David, gave her a Derringer because she was afraid of her other son, Michael (Tr. 396). When she got home, she put the Derringer under her mattress (id.).

Mrs. xxxxxxx's 18-year-old son, Michael, lived with her at xxxxxxx F Street (Tr. 376). Michael was ill with schizophrenia and had been hospitalized many times (Tr. 377, 380). When Mrs. xxxxxxx returned from South Carolina in late June, she discovered that Michael's illness was in full blossom (Tr. 377). On July 3, 1997, Mrs. xxxxxxx searched Michael's bedroom looking for dangerous weapons (id.). She found and seized a hammer, a baseball bat, a knife, the 9-millimeter gun, ammunition clips, and ammunition (Tr. 378). Mrs. xxxxxxx wrapped the gun in some pants and put it on the nightstand behind the door of her bedroom (Tr. 378, 397). She threw the clip and ammunition in a box underneath the nightstand (Tr. 415). That evening, Michael came into her bedroom and demanded his "stuff" that she had taken (Tr. 379). Mrs. xxxxxxx responded, "Michael, just shut my door." (id.). Michael shut the door, then kicked it off its hinges (Tr. 379-380). Mrs. xxxxxxx propped the door and called her estranged husband, xxxxxxx xxxxxxx, for help (Tr. 380).

Mr. xxxxxxx arrived at xxxxxxx F Street after lunch the next day (Tr. 385). By that time, Michael was "wild" and was running in and out of the apartment (id.). Mrs. xxxxxxx was afraid of Michael and told him that he could not come back to her apartment (Tr. 385-386). That night, the police received three 911 calls (from Mrs. xxxxxxx, from Mr. xxxxxxx, and from a neighbor) after Michael kicked the front door of the apartment building off its hinges and busted the locks on the door (Tr. 385-386, 387, 389). When the police finally arrived they arrested Michael, but released him the next day (Tr. 393). The next day, Mrs. xxxxxxx paid a locksmith to replace the locks on the door (Tr. 390-391).

On July 9th, someone knocked on Mrs. xxxxxxx's door asking for Michael (Tr. 392). Without opening the door, Mrs. xxxxxxx told him that Michael was not there (id.). When the man came back moments later and identified himself as an officer, Mrs. xxxxxxx opened the door (Tr. 393). During the search, one officer asked Mrs. xxxxxxx what in the bedroom belonged to her (Tr. 440). She told him that the Derringer under the mattress was hers (Tr. 396). He did not ask whether there were any other guns in the apartment, and did not ask specifically about the 9-millimeter gun (Tr. 439-440). After the police left, the bedroom door was again off its hinges and leaning against the night stand (Tr. 394).

Mrs. xxxxxxx testified that the Derringer that was found under the mattress belonged to her, and the 9-millimeter gun was the one that she had taken from her son's bedroom (Tr. 375). Neither gun belonged to Mr. xxxxxxx, and Mrs. xxxxxxx had not told him about either of the guns (Tr. 375-376, 397).

Mrs. xxxxxxx testified that the heroin and cocaine and the drug paraphernalia (a "cooker," cutting agents, a scale, a sifter, and ziplock bags) belonged to her and not to xxxxxxx xxxxxxx (Tr. 417, 427, 431, 442). She testified that she had some friends who would use her apartment to cut their drugs (Tr. 418).

SUMMARY OF ARGUMENT

I.The district court abused its discretion when it denied Mr. xxxxxxx's motion for severance. The court's theory that the holding of United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992) did not apply because both the ex-felon and drug charges arose from contraband found on the same date misapplied Dockery and was a mistake of law. Evidence that Mr. xxxxxxx was an ex-felon prejudiced him before the jury regardless of when and where the various contraband was seized.

Even aside from the district court's misapplication of Dockery, its refusal to sever was an abuse of discretion in light of the inadequate precautions taken. The jury never received any instruction on how it could consider the fact that Mr. xxxxxxx was an ex-felon; it was never cautioned against inferring that Mr. xxxxxxx had a propensity to commit crimes and it was not told that the evidence was irrelevant to Mr. xxxxxxx's guilt on the drug charges. Without any guidance, the jury likely believed that Mr. xxxxxxx's "criminal disposition [was] logically relevant to his guilt or innocence." United States v. Poore, 594 F.2d 39, 41-42 (4th Cir. 1979) (quoting United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976)). In light of the especially thin evidence that Mr. xxxxxxx constructively possessed the drugs, knowledge of Mr. xxxxxxx's history as a felon likely tipped the scales to convince the jury that Mr. xxxxxxx must have been guilty of at least some of the charges.

II.The prosecutor sought to shore up a weak case with a powerful -- but very improper -- summation. He created a special bond with the jurors by repeatedly telling them that he was their personal representative, he turned the jurors into Mr. xxxxxxx's adversaries, and he smeared Mr. xxxxxxx and his only fact witness with insinuations and claims that were not based on any evidence, and contrasted them with the upstanding citizens of the jury. He concluded by equating outright acquittal with personally embracing Mr. xxxxxxx. These improper arguments likely infected the jury's consideration of the government's evidence against Mr. xxxxxxx. In light of the fact that the proof that Mr. xxxxxxx possessed the drugs was so weak, and the fact that the district court's declined to deliver a curative instruction, the prosecutor's misconduct seriously compromised the fairness of Mr. xxxxxxx's trial and a new trial is required.

ARGUMENT

I.THE DENIAL OF DEFENDANT'S MOTION FOR SEVERANCE WAS AN ABUSE OF DISCRETION WHERE THE DISTRICT COURT FAILED TO TAKE ADEQUATE STEPS TO PROTECT THE DEFENDANT FROM THE PREJUDICIAL JOINDER OF EX-FELON CHARGES WITH DRUG POSSESSION CHARGES.

A.Standard of Review.

The district court's discretion in the management of a joint trial involving an ex-felon charge together with other charges is "plainly limit[ed]" by the law of the circuit. United States v. Dockery, 955 F.2d 50, 54 (D.C. Cir. 1992). With that limitation, this Court reviews for an abuse of discretion. Id.

Appellant preserved the issue for appellate review by moving in writing and orally for severance of the ex-felon charges from the drug charges (A. at 3; Tr. 4-15, 18-21, 32). See United States v. Daniels, 770 F.2d 1111, 1114-1115 (D.C. Cir. 1985).

B.The District Court's Denial of Severance Was An Abuse of Discretion In Light of the Inadequate Precautions Taken.

Evidence that a defendant is an ex-felon suggests that he is a "bad character." United States v. Daniels, 770 F.2d 1111, 1116 (quoting United States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968)). Such evidence "is always . . . prejudicial to a defendant. It diverts the attention of the jury from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." Id. at 1116. Without sufficient precautions, evidence of past convictions "is likely to impinge impermissibly upon a jury's reasoning as to the other charges." United States v. Bowie, 142 F.3d 1301, 1306 (D.C. Cir. 1998).

Mr. xxxxxxx moved for severance of the ex-felon charges and the drug charges, arguing that the ex-felon charges would prejudice the jury's consideration of the drug charges (A. at 3; Tr. 4-6, 8). Alternatively, he proposed to concede his ex-felon status to the court in a Rule 11-type procedure, outside the presence of the jury (Tr. 4-5, 14). The government opposed the defendant's requests

because the drug charges and gun charges "arose out of the same circumstance . . . ." (Tr. 17), and because "[e]very juror that comes into this courtroom knows that on a simple gun possession count, the case does not belong in this courtroom, it should be across the street." (Tr. 15).

The district court agreed with the prosecutor's theory that the charges should not be severed because the possession of all the contraband "arose out of the same circumstance . . . ." (Tr. 17). The court held that the Dockery case did not apply to this case because here the possession of the drugs and the possession of the guns and ammunition were "all based upon the same act, transaction. It's completely different from the Dockery case." (Tr. 32). The parties entered into evidence a stipulation stating that Mr. xxxxxxx had been convicted of an offense punishable by a term of imprisonment exceeding one year, but omitting mention of the nature of the prior felony (Tr. 373). The court did not deliver any cautionary or limiting instructions to the jury.

The trial court's reasoning that severance was not necessary because the guns and drugs were found on the same date -- not on different dates as in Dockery -- misinterpreted the holding in Dockery, and was an abuse of discretion. The Court in Dockery did not hold that the charges were improperly joined, see 955 F.2d at 53, but that "the proper balance between judicial economy and the prejudicial effect of evidence of prior convictions was not struck in this instance." 955 F.2d at 54 (quoting Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir. Unit B 1981)). Evidence that Mr. xxxxxxx was an ex-felon prejudiced him in the eyes of the jury regardless whether the ex-felon charges and drug charges arose from the same police raid. The trial court's mistake of law was an abuse of its discretion. "Abuse of discretion review means 'that the court has a range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law." Dockery, 955 F.2d at 54.

Even aside from the district court's mistaken application of the law, on the facts of this case, and in light of the inadequate precautions taken, the court's refusal to sever was an abuse of discretion. With one important distinction, this case mirrors United States v. Bowie, 142 F.3d 1301 (D.C. Cir. 1998). In Bowie, the defendant was charged with two narcotics offenses and four weapons offenses, two of which alleged that the defendant was an ex-felon. Id. at 1303. The defendant made the same motions made by Mr. xxxxxxx; for severance, or for a bench trial on the ex-felon element. Id. at 1304. The motions were denied. This Court affirmed Bowie's convictions because the judge minimized the prejudice to Mr. Bowie in three ways: 1) by only allowing the government to introduce the evidence of the prior conviction through a stipulation that did not mention the nature of the prior felony, 2) by forbidding the government from mentioning the prior conviction except as necessary to explain the ex-felon counts, and 3) by twice admonishing the jury not to use the fact of the prior conviction for anything other than consideration of that element of the ex-felon counts. Id. at 1307.

Here, the evidence was entered by way of a stipulation that did not mention the nature of the prior felony and the prosecutor did not dwell on Mr. xxxxxxx's ex-felon status. However, Mr. xxxxxxx's jury was left to deliberate without having received any guidance whatsoever concerning how it could consider the information that Mr. xxxxxxx was an ex-felon. The district court never cautioned the jury against inferring from Mr. xxxxxxx's prior conviction a propensity to commit crimes, and never explained that the evidence was admitted for a limited purpose and was irrelevant to the drug charges. Without such guidance, the jury was likely to consider Mr. xxxxxxx's prior felony conviction as substantive propensity evidence. See United States v. Fennell, 53 F.3d 1296, 1302 (D.C. Cir. 1995) (instructions against using felony indictment for any purpose other than to establish that element of § 922(g)(1) charge will provide "protection of a defendant's rights in a joint trial of multiple counts") (citing Dockery, 955 F.2d at 55-56); United States v. Valentine, 706 F.2d 282, 290 n.7 (10th Cir. 1983) (where court denies severance of ex-felon count, limiting instructions should be given to assure defendant "fairest trial possible"); Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir. 1981) (if severance of ex-felon count denied, court must utilize limiting instructions to cure prejudicial effect of joint trial).

Although this Court has expressed skepticism about whether jurors are even capable of limiting their consideration of a defendant's ex-felon status, the Court also has required trial judges to take steps to encourage the jurors to do just that. Without instructions, the jurors will not even make the effort since, "to the layman's mind a defendant's criminal disposition is logically relevant to his guilt or innocence of a specific crime." United States v. Poore, 594 F.2d 39, 41-42 (4th Cir. 1979) (quoting United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976)). By failing to caution the jury against inferring criminal propensity from Mr. xxxxxxx's prior felony conviction, the trial court did not exercise its discretion with "sufficiently scrupulous regard" for Mr. xxxxxxx's rights. See Daniels, 770 F.2d at 1118.

It is especially likely that the ex-felon evidence prejudiced Mr. xxxxxxx as to the drug charges since the evidence that he constructively possessed the drugs was so thin. "[C]onstructive possession requires a showing of control and dominion over the contraband; there must be 'some action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them.'" United States v. Teffera, 985 F.2d 1082, 1088-1089 (D.C. Cir. 1993) (quoting United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980)). Here, the government asked the jury to draw strained inferences in order to conclude that it was Mr. xxxxxxx who had dominion and control over the drugs. First, the government asked the jury to conclude that Mr. xxxxxxx lived in the apartment, since he had once lived there and was discovered shirtless when the police raided. There was little real evidence supporting that inference, and strong evidence to the contrary. Second, the drugs were not found in a place that naturally supports a logical inference of constructive possession (e.g., on a table at which the defendant was sitting, in the pocket of a garment known to belong to the defendant, etc.). Rather, the drugs were found on the floor of a closet of Violia xxxxxxx's bedroom. Third, there was precious little in the way of "some action, some word, or some conduct," Teffera, 985 F.2d at 1088-1089, that linked Mr. xxxxxxx to the drugs. Finally, and most obviously, there was another person -- a resident of the apartment -- who was the more likely owner of the drugs and who actually admitted her guilt under oath. Knowledge of Mr. xxxxxxx's history as a felon likely tipped the scales to convince the jurors that Mr. xxxxxxx could not be entirely innocent of all the charges. That information fatally undermined his contention that he did not possess the drugs found in the closet of the bedroom. A new trial is required.

II.THE DISTRICT COURT COMMITTED ERROR BY DENYING A MISTRIAL AND REFUSING TO PROVIDE A CURATIVE INSTRUCTION AFTER THE PROSECUTOR COMMITTED MISCONDUCT IN CLOSING ARGUMENT.

A. The Prosecutor's Summation And Rebuttal Summation.

The prosecutor began and ended his summations by aligning himself with the jury and pitting his "team" against Mr. xxxxxxx and the defense witness (Tr. 507, 516-517, 518):

Now, Mr. Rochon is a good lawyer, and he's done an excellent job in this case. None of this is personal. This is all about the United States verses xxxxxxx xxxxxxx. But it's more than the United States, it's the community. I represent the community here, the citizens, I represent you twelve of the fourteen that are sitting here, twelve of you deciding this case. I represent you.

* * *

This is a woman -- now, to digress a little. One of the reasons the fourteen of you were picked here for this jury is because you're all qualified, and you play by the rules. We have Violia xxxxxxx. She has a job, she claims she got a hundred thousand dollars settlement from a life insurance policy. She has a Jaguar, she has a BMW, she has a Baretta. Yet she's taking Medicare. She's playing us all for patsies. You're playing by the rules, she's not.

* * *

Here's an interesting thing in this wallet. Realco Gun Company, Inc., Firearms Professional. What would a man who could not legally possess a gun be doing having this card or these guns? He knows he can't possess that because of his prior conviction.

Not only that -- excuse me. An MVP at Bally's. So he must have some money we don't know about, to qualify for that status, running back and forth to Atlantic City. And he's got all sorts of limousine cards in here. Maybe he can afford these things, I don't know, that'll be for you to decide.

The prosecutor's rebuttal summation included the following arguments (Tr. 554-555):

All fourteen of you are sitting here because we thought you were responsible enough to be jurors. This is about accountability. You live in the District of Columbia. You're hard-working people and you're here because we wanted you. You showed up every day. And there's a reason for that -- accountability, responsibility. That's what this case is all about.

If I haven't done my case, if I have not made my case, you welcome him right back into your community. You wait outside the door, outside the courthouse, say, "Mr. xxxxxxx, the government charged you wrong." You welcome him right back. If I haven't done it, I can live with it. It's your town. Welcome him back to your town. But if I have made my case, it's your turn to uphold your duty, your turn to hold him accountable.

* * *

. . . If the government has made its case, it becomes your burden to convict this man, because you're the triers of fact.

I'm not. I just represent the United States, and I represent you. I'm asking you to bring Mr. xxxxxxx bad news.

Defense counsel moved for a mistrial based on the prosecutor's arguments immediately following the initial closing and again immediately following the rebuttal closing (Tr. 519-523, 556-557). Among other things, counsel objected that the prosecutor attacked the defendant's character (Tr. 519) and delivered a scare message to the jury (Tr. 556-557). After the district court denied the motion for a mistrial, defense counsel requested an instruction to the jury to disregard the prosecutor's scare tactics (Tr. 557-558). The prosecutor did not "feel it's necessary," but did not object to the request for an instruction (Tr. 558). However, the district court denied the request (Tr. 558).

B.Standard of Review

Prosecutorial statements overstepping the bounds of proper advocacy violate a defendant's due process rights if they cause "substantial prejudice." United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984). The factors to be considered are the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks. Id. See also United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir.), cert. denied, 517 U.S. 1229 (1996).

C.The Prosecutor's Argument Pitting The Jurors And Their Lawyer (The Prosecutor Himself) Against The Defense And Smearing Mr. xxxxxxx And His Witness Prejudiced Mr. xxxxxxx.

A prosecutor's job in summation is to persuade the jury, based solely on the proof at trial (and inferences reasonably drawn from the proof), that the charges have been proved beyond a reasonable doubt. "A prosecutor may not make 'statements calculated to arouse the passions or prejudices of the jury,' or 'statements of fact to the jury not supported by proper evidence introduced during trial.'" United States v. North, 910 F.2d 843, 894-895 (D.C. Cir. 1990) (citations omitted). Faced with little hard evidence to prove that it was Mr. xxxxxxx who possessed the contraband, the prosecutor set about to recruit the jurors onto his "team" and to unfairly pit them against Mr. xxxxxxx. Mr. xxxxxxx's right to a verdict based solely on the evidence was substantially prejudiced.

First, the prosecutor improperly identified himself as the jurors' personal representative and identified the jurors (and the "community" and the "citizens" of the District of Columbia) as Mr. xxxxxxx's adversaries (Tr. 507):

. . . This is all about the United States versus xxxxxxx xxxxxxx. But it's more than the United States, it's the community. I represent the community here, the citizens, I represent the twelve of the fourteen that are sitting here, twelve of you deciding this case. I represent you.

Of course, a federal prosecutor acts on behalf of the sovereign; he does not represent the jurors selected in any particular case. Cf. Berger v. United States, 295 U.S. 78, 88 (1935) ("The United States Attorney is the representative . . . of a sovereignty . . . . As such, he is in a peculiar and very definite sense the servant of the law . . . ."). The prosecutor's repeated claim (Tr. 507, 555) that, "I represent you," could have no purpose other than to create a special bond with the jurors so that they might be more sympathetic to his pleas for conviction. See Berger, 295 U.S. at 88 (because the average jury "has confidence" in the prosecutor's obligation to do justice, "improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none"); United States v. Young, 470 U.S. 1, 18-19 (1985) ("[T]he prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.").

Having recruited the jurors onto his "team," the prosecutor pitted them against Mr. xxxxxxx by casting the case as the twelve jurors, the community, and the citizens of D.C. versus Mr. xxxxxxx. This framework encouraged the jurors to slip out of their role as umpires -- neutral arbiters of the facts -- and into the role of Mr. xxxxxxx's adversaries. "Arguments urging a jury to act in any capacity other than as the impartial arbiter of the facts in the case before it are improper." United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994), cert. denied, 117 S. Ct. 147 (1996). It also set up a monumental array of adversaries for Mr. xxxxxxx -- not only the U.S. Attorney's Office, but the very people chosen to decide the facts in Mr. xxxxxxx's case, acting on behalf of the entire community and citizenry of the District of Columbia. See Id. at 573 n.1 (inappropriate for prosecutor to tell jury: "[Y]ou represent the people of the United States, the citizens of the State of Rhode Island. By your verdict you will speak for those citizens.").

Next, the prosecutor unfairly and improperly contrasted the "hard-working people" of the jury who "play[] by the rules" with Mr. xxxxxxx, a gambler with suspicious spending habits, and his wife, a welfare cheat. The prosecutor asked the jury to speculate about irrelevant, prejudicial matters about which there had been no evidence. Picking through Mr. xxxxxxx's wallet, the prosecutor argued (Tr. 518):

. . . An MVP [card] at Bally's. So he must have some money we don't know about, to qualify for that status, running back and forth to Atlantic City. And he's got all sorts of limousine cards in here. Maybe he can afford these things, I don't know, that'll be for you to decide.

This argument was improper for a host of reasons: It improperly suggested that Mr. xxxxxxx had an illicit source of income, it suggested that the prosecutor had damaging information about Mr. xxxxxxx that the jury had not heard ("he must have some money we don't know about"), it argued facts not in evidence ("he must have some money . . . to qualify for that status" and "[Mr. xxxxxxx has been] running back and forth to Atlantic City"), and it wrongly suggested that all of this was relevant to the jury's decision whether the government had proved its case ("Maybe he can afford these things, . . . that'll be for you to decide"). Of course, it was not for the jury to decide at all; Mr. xxxxxxx's spending was entirely irrelevant to the question whether he possessed the guns, ammunition and minuscule amount of drugs. See United States v. Stahl, 616 F.2d 30 (2d Cir. 1980) (gratuitous references to defendant's wealth in prosecutor's summation required reversal). In short, the prosecutor smeared Mr. xxxxxxx's character.

Mr. xxxxxxx's defense witness, his estranged wife, did not fare any better. The prosecutor again used "facts" not in evidence to falsely suggest that she was a welfare cheat, and contrasted her alleged dishonesty with the jurors' honesty and integrity (Tr. 516-517):

This argument misuses Mrs. xxxxxxx's testimony that her adult son's (Tr. 376) therapy was paid for by Medicaid. On re-direct examination of Violia xxxxxxx, defense counsel revisited the topic of Michael xxxxxxx's mental illness (Tr. 451-452):

Q.Why did you call [the police] when [Michael] kicked the apartment door in?

A.Michael was getting out of hand, he was outrageous. Nobody wouldn't have been able to do [anything] with Michael. If I wouldn't have called the police during that time, it would have been over.

Q.Now, you were asked these questions by the prosecutor about your relationship with Michael. Did you -- you said, when I asked you questions before, that eventually you went inpatient in August?

A.Yes.

Q.Do you remember -- and where did he go initially?

A.Howard University.

Q.And where did he go after that?

A.We're in therapy now.

Q.Who?

A.Michael and myself.

Q.After he was at the hospital, did he -- was he then placed?

A:He was placed back with me.

Q: Okay. How do you pay for his treatment?

A: We get Medicaid.

The prosecutor did not explore the propriety of Medicaid payments for Michael's treatment on recross-examination (Tr. 452-454). Nothing about Mrs. xxxxxxx's testimony can support an argument that she was "playing us all for patsies" by defrauding Medicaid (or Medicare) to pay for Michael's therapy. Indeed, since Michael was 18-years-old, it is more likely that his mother would not even be able to get benefits on his behalf, but that he would be eligible himself to receive benefits. As with the smear campaign leveled against Mr. xxxxxxx, it argued "facts" not in evidence, and it suggested that the prosecutor had damaging information about Mrs. xxxxxxx that the jury had not heard. Making matters even worse, though, the prosecutor couched the whole argument in terms designed to enrage the jurors and turn them against the sole fact witness for the defense: "[Y]ou play by the rules. . . . She's playing us all for patsies. You're playing by the rules, she's not."

Finally, the prosecutor browbeat and frightened the jury by equating a vote for acquittal with personally embracing Mr. xxxxxxx and "welcoming" him into their lives (Tr. 554-555):

Cf. Young, 470 U.S. at 18 (error to exhort jury to "do its job;" -- "that kind of pressure . . . has no place in the administration of criminal justice"); Manning, 23 F.3d at 572-573 (prosecutor's appeal to jury to "[t]ake responsibility for yourselves. Take responsibility for your community" was improper appeal to passions); United States v. Modica, 663 F.2d 1173, 1180 (2d Cir. 1981) (prosecutor's comment "[d]on't let [the defendant] walk out of this room laughing at you" was designed to prejudice the jury).

The prosecutor's misconduct seriously compromised the fairness of Mr. xxxxxxx's trial. This prosecutor made deliberate arguments that ventured far beyond the proof at trial and that affected a matter central to the fairness of the trial -- the neutrality of the jurors. In addition, his unfair character assassinations were designed to smear the defendant himself, and the most critical defense witness upon whose word and credibility the defense rested. He ended by suggesting that acquittal on all the charges would entail a personal endorsement of Mr. xxxxxxx. Second, the district court took no steps to cure the misconduct, denying a motion for a mistrial and even denying defense counsel's request for a curative instruction. Finally, the government's proof that Mr. xxxxxxx possessed the heroin and cocaine was, at best, weak. See supra at 16-17. A new trial is warranted.

CONCLUSION

Because the trial court erroneously denied appellant's motion for severance and motion for a mistrial, appellant's conviction must be reversed and the case remanded for a new trial.

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing brief for appellant, xxxxxxx xxxxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).

_________________________________

Sandra G. Roland

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant 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 25th day of September, 1998.

___________________________________

Sandra G. Roland