TABLE OF CONTENTS



TABLE OF AUTHORITIES iii



JURISDICTION 1



ISSUES PRESENTED FOR REVIEW 1



STATUTES AND RULES 2



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



1. The Government's Case 3



2. The Defense Case 9



3. The Government's Rebuttal Case 15



4. The Denial of the Missing Witness Instruction 16



5. The Prosecutor's Rebuttal Argument 17



SUMMARY OF ARGUMENT 18



ARGUMENT 20



I. INADMISSIBLE TESTIMONY REFERRING TO MR. xxxxxxxS'S PRIOR ARREST, COMBINED WITH THE PROSECUTOR'S IMPROPER CROSS-EXAMINATION AND CLOSING ARGUMENT SUGGESTING THAT HIS FAILURE TO PAY TAXES SHOWED A BAD CHARACTER, PREJUDICED MR. xxxxxxxS ON THE ISSUE OF PREDISPOSITION BY IMPROPERLY SUGGESTING A GENERAL CRIMINAL PROPENSITY 20



A. Standard of Review 20



B. The Prejudice From the Agent's Improper Reference to Mr. xxxxxxxs's Prior Arrest Was Not Eliminated By the Court's Attempted Curative Instruction Where the Improper Testimony Struck at the Heart of His Entrapment Defense 22

 

C. The Government Misused Mr. xxxxxxxs's Failure to Pay Taxes to Suggest a General Propensity to Break the Law 25



II. THE COURT DEPRIVED MR. xxxxxxxS OF A FAIR TRIAL BY TAKING ON THE ROLE OF AN ADVOCATE FOR THE GOVERNMENT'S THEORY OF THE CASE 28

A. Standard of Review 28


B. The Court's Aggressive Cross-Examination of Mr. xxxxxxxs Was Obvious Error That Seriously Affected the Fairness of His Trial 29


III. THE COURT ERRED IN DENYING MR. xxxxxxxS'S REQUEST FOR A MISSING WITNESS INSTRUCTION WHERE THE GOVERNMENT'S FAILURE TO CALL ITS CONFIDENTIAL INFORMANT AS A WITNESS SUPPORTED THE INFERENCE THAT HIS TESTIMONY WOULD HAVE BEEN UNFAVORABLE TO THE GOVERNMENT 34



A. Standard of Review 34



B. The Confidential Informant "Maurice" Was Peculiarly Available to the Government and His Testimony Would Have Elucidated the Transactions 34



CONCLUSION 40



CERTIFICATE OF LENGTH 41



CERTIFICATE OF SERVICE 41



ADDENDUM

TABLE OF AUTHORITIES



CASES



*Barnes v. United States,

365 F.2d 509 (D.C. Cir. 1966) 23, 25



Blunt v. United States,

244 F.2d 355 (D.C. Cir. 1957) 33



Gaither v. United States,

413 F.2d 1061 (D.C. Cir. 1969) 22, 27, 28



*Graves v. United States,

150 U.S. 118 (1893) 34, 37



Jackson v. United States,

329 F.2d 893 (D.C. Cir. 1964) 29



Quercia v. United States,

289 U.S. 466 (1933) 33



*United States v. Barbour,

420 F.2d 1319 (D.C. Cir. 1969) 29, 31, 32



United States v. Blankenship,

775 F.2d 735 (6th Cir. 1985) 26



United States v. Bramble,

641 F.2d 681 (9th Cir. 1981),

cert. denied, 459 U.S. 1072 (1982) 26



*United States v. Burgess,

440 F.2d 226 (D.C. Cir. 1970) 35, 36, 38



United States v. Burkley,

591 F.2d 903 (D.C. Cir. 1978),

cert. denied, 440 U.S. 966 (1979) 25



United States v. Daniels,

572 F.2d 535 (5th Cir. 1978) 26



*United States v. Eccleston,

961 F.2d 955 (D.C. Cir. 1992) 22-24



United States v. Filani,

74 F.3d 378 (2d Cir. 1996) 32



United States v. Fosher,

568 F.2d 207 (1st Cir. 1978) 23





United States v. Fowler,

608 F.2d 2 (D.C. Cir. 1979) 22



United States v. Glenn,

64 F.3d 706 (D.C. Cir. 1995) 34, 35, 39



United States v. Hodges,

770 F.2d 1475 (9th Cir. 1985) 27



United States v. Mazzilli,

848 F.2d 384 (2d Cir. 1988) 32



United States v. McCord,

509 F.2d 334 (D.C. Cir. 1974),

cert. denied, 421 U.S. 930 (1975) 29



United States v. Monaghan,

741 F.2d 1434 (D.C. Cir. 1984) 21



*United States v. Norris,

873 F.2d 1519 (D.C. Cir.),

cert. denied, 493 U.S. 835 (1989) 33, 36-39



United States v. Olano,

113 S. Ct. 1770 (1993) 29



United States v. Perholtz,

842 F.2d 343 (D.C. Cir. 1988) 27



United States v. Rawlings,

73 F.3d 1145 (D.C. Cir. 1996) 33



United States v. Spencer,

25 F.3d 1105 (D.C. Cir. 1994) 31



United States v. Tarantino,

846 F.2d 1384 (D.C. Cir.),

cert. denied, 488 U.S. 840 (1988) 21, 34, 36



United States v. Winstead,

74 F.3d 1313 (D.C. Cir. 1996) 28



*United States v. Wyatt,

442 F.2d 858 (D.C. Cir. 1971) 30



STATUTES AND RULES



21 U.S.C. 841(a)(1) & (b)(1)(A)(iii) 2



21 U.S.C. 843(b) 2



Fed. R. Evid. 404 27

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________



No.

 

 

 

 

 

 

 

_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



 

xxxxxxxxxxxxx, 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 (entered October 17, 1995) having been filed on October 16, 1995, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court erred in refusing to grant a mistrial after the lead undercover officer irreparably damaged Mr. xxxxxxxs's entrapment defense by telling the jury, in violation of an instruction from the prosecutor, that the photograph he had used to identify the defendant was "a prior arrest photo that was taken by [the Metropolitan Police Department]." (3/7 Tr. 75-76).

II. Whether Mr. xxxxxxxs was substantially prejudiced when the prosecutor improperly used his failure to file tax returns to suggest he was a person of bad character with a general propensity to commit crime.

III. Whether the trial court plainly erred in taking on the role of advocate in its cross-examination of Mr. xxxxxxxs.

IV. Whether the trial court abused its discretion in refusing Mr. xxxxxxxs's request for a missing witness instruction with respect to the government's confidential informant.

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 October 18, 1994, a federal grand jury returned an indictment charging Mr. Eric Von xxxxxxxs with two counts of distribution of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii) (Counts One and Two) and two counts of unlawful use of a communication facility in violation of 21 U.S.C. 843(b) (Counts Three and Four). A. 11-14. (1)

A jury trial commenced before the Honorable Harold H. Greene on March 7, 1995. On March 14, 1995, the jury returned a verdict of guilty on all counts. On October 2, 1995, the court sentenced Mr. xxxxxxxs to 151 months of imprisonment and five years of supervised release on Counts One and Two and 48 months of imprisonment and one year of supervised release on Counts Three and Four, all to run concurrently (A. 19-22). Mr. xxxxxxxs filed a timely notice of appeal (A. 23).

B. Statement of Facts

1. The Government's Case

Former DEA Agent Wayne Engram and DEA Agent Ronald Woods testified that Mr. xxxxxxxs sold them cocaine base on August 11, 1994, (2) August 23, 1994, and August 31, 1994. (3) The sales were recorded on audio and videotape.

The first sale was set up through a DEA informant (referred to only as "Maurice"), (4) who had given Agent Engram the pager number of the person who would be bringing the drugs. (3/7 Tr. 74, 79; 3/8 Tr. 11-12, 29, 42-43). Before the first transaction, the police obtained Mr. xxxxxxxs's full name, address, and car registration information through a subpoena to the pager company and a "WALES" check. (3/7 Tr. 74-75; 3/8 Tr. 12-13).



On August 11, 1995, Engram and Woods (posing as "Mike" and "Shawn") drove to the home of Wendell Miller (known as "Fats") with the informant, Maurice. (3/7 Tr. 73-74, 88; 3/8 Tr. 69). The person who was to bring the drugs to Fats's house was almost an hour late. (3/7 Tr. 73-74; 3/8 Tr. 57-58, 69). Throughout the time they were waiting, the officers were complaining to Maurice and telling him to "get ahold of the guy." (3/8 Tr. 62). At one point, Maurice went inside Fats's house and made an unmonitored (5) telephone call. (3/8 Tr. 58-65). Upon his return, Maurice reported that he had just talked to the person with the drugs and he was on his way. (3/8 Tr. 63-65). When Mr. xxxxxxxs finally arrived, he got inside the undercover officers' car and exchanged two ounces of cocaine base for $1800 cash. (3/8 Tr. 54, 69). Mr. xxxxxxxs then drove away with Fats, but returned shortly thereafter and dropped Fats off at his house. (3/8 Tr. 54).

Agent Engram testified that the next day he obtained a photograph of Eric Von xxxxxxxs. (3/7 Tr. 75). When asked how the picture related to Mr. xxxxxxxs, Engram stated, "This is a picture that was in the possession of the Metropolitan Police Department. This is, I guess, a prior arrest photo that was taken by them." (3/7 Tr. 75-76). Defense counsel immediately moved at the bench for a mistrial, explaining that the parties had agreed to crop the photo so that the jury could not tell that it was a mugshot. (3/7 Tr. 76). The prosecutor explained that she had instructed Engram not to mention that it was an MPD photo or that it was from a prior arrest. (3/7 Tr. 77, 78). When the court asked, "Why is he so stupid?", the prosecutor responded, "I have no idea." (3/7 Tr. 77). Stating, "I hate to start all over," the court ruled that it would deny the mistrial motion but offered to "tell the jury whatever [defense counsel] wants me to tell the jury." (3/7 Tr. 77). Per defense counsel's request, the court instructed the jury: "In view of the testimony of the officer, I want to advise you that Mr. xxxxxxxs has never been convicted of a criminal offense." (3/7 Tr. 79).

To set up the second deal, Engram paged Mr. xxxxxxxs on August 22, 1994, but Mr. xxxxxxxs did not call him back. (3/8 Tr. 13). Mr. xxxxxxxs told Engram the next day that he had not called because Engram had not left a number, but Engram acknowledged on cross-examination that Mr. xxxxxxxs's excuse for not calling was not valid because Engram had in fact left his number. (3/8 Tr. 15-16). When Engram paged Mr. xxxxxxxs on August 23, 1995, Mr. xxxxxxxs did call him back. Engram told Mr. xxxxxxxs he wanted to "do the same thing I did last time," to which Mr. xxxxxxxs responded, "Okay." Govt. Ex. 3 (audiotape of Aug. 23, 1994, telephone call). They arranged to meet at Hechinger Mall at 2:00 p.m. Govt. Ex. 3. Mr. xxxxxxxs was 45 minutes late, during which time Engram repeatedly paged him from the mall parking lot until xxxxxxxs paged him back, leaving a pay phone number. (3/7 Tr. 89-90; 3/8 Tr. 16-17, 33). Engram called that number and spoke to Mr. xxxxxxxs, who finally arrived at 2:45 p.m. (3/7 Tr. 90-91). Engram got into Mr. xxxxxxxs's car and exchanged $1800 for two ounces of cocaine base. (3/7 Tr. 92-94; 3/8 Tr. 72-74).

To set up the third deal, Engram paged Mr. xxxxxxxs on August 30, 1994, and told him that he wanted to make another purchase. Mr. xxxxxxxs told Engram to contact him the next day. (3/7 Tr. 100). On August 31, 1995, Engram paged Mr. xxxxxxxs several times before he called Engram back. (3/7 Tr. 104-05; 3/8 Tr. 14). Again, Engram acknowledged that Mr. xxxxxxxs's explanation for not calling back ("every time you page me, you leave a number out") was not accurate. (3/8 Tr. 15). When xxxxxxxs did return Engram's call, Engram told him that he wanted to buy "one more than what I got last time." (Govt. Ex. 12) (audiotape of Aug. 31, 1994, telephone call). (6) Mr. xxxxxxxs confirmed explicitly, "[Y]ou want 3 ounces?" (Govt. Ex. 12; 3/8 Tr. 21, 26-27). They agreed to meet at 3:00 p.m. at the Hechinger Mall. (3/7 Tr. 106). With respect to the price, Mr. xxxxxxxs told Engram he would call him back. (3/7 Tr. 105; 3/8 Tr. 20-21, 27). When Mr. xxxxxxxs called back, he quoted a price of $2550, but then agreed to $2500. (3/7 Tr. 105-06). Mr. xxxxxxxs paged Engram about ten minutes after Engram arrived at the mall but left only a pager number, which Engram interpreted as a signal that he was on his way. (3/7 Tr. 107). After waiting for 40 minutes, Mr. xxxxxxxs finally arrived. (3/7 Tr. 106-07; 3/8 Tr. 18). He approached Engram and Woods on foot, got in their car, and exchanged 3 ounces of cocaine base for $2500. (3/7 Tr. 107, 112; 3/8 Tr. 78-79).

Mr. xxxxxxxs then jogged away out of Engram's sight to the other side of the shopping center. (3/7 Tr. 113). DEA Agent Luis Burgos -- on surveillance around the mall area -- also lost sight of Mr. xxxxxxxs when he went around the corner of the mall. Burgos then drove around to the other side of the mall, where he came within a half-car length of Mr. xxxxxxxs as he was about to exit the parking lot in a Chevrolet Caprice. (3/8 Tr. 92-97, 107-08). (7) Another man, later identified as Harold Smith, was in the car with Mr. xxxxxxxs. (3/8 Tr. 106-07). Burgos and other surveillance vehicles then followed Mr. xxxxxxxs as he drove to an alley off Bryant and North Capitol Streets (3/8 Tr. 94, 97). When Mr. xxxxxxxs drove out of the alley, an elderly woman was also in the car. (3/8 Tr. 97-98). Surveillance then followed Mr. xxxxxxxs to the 3200 block of 11th Street, where he parked the car. (3/8 Tr. 98-99). After the woman went inside a nearby business, the two men got out of the car and walked past Burgos's vehicle. (3/8 Tr. 99-100, 102).

MPD Officer Diane Groomes testified that she was on uniformed patrol in the area when she received a radio request to stop Mr. xxxxxxxs and Mr. Smith. (3/8 Tr. 112). She and her partner stopped the two men, told them that there had been a robbery in the area by men matching their descriptions, obtained their identification, patted them down, and held them for 10 to 15 minutes (ostensibly, so the robbery victim could drive by and view them but, in reality, so a DEA agent could drive by and take their picture). (3/8 Tr. 114-15). The men were "real cooperative." (3/8 Tr. 114). In patting down Mr. xxxxxxxs, the officer did not detect any bulge of cash. (3/8 Tr. 117-18). Meanwhile, Agents Engram and Woods had switched vehicles and driven to the 11th Street area in order to determine whether the man with Mr. xxxxxxxs was "Fats." (3/7 Tr. 123-25; 3/8 Tr. 35, 82). Driving by the men as they walked down the street, the officers reported that they did not recognize the other man. (3/7 Tr. 124-25; 3/8 Tr. 35). Mr. xxxxxxxs was ultimately arrested on September 26, 1994. (3/8 Tr. 45). None of the marked money used to buy the drugs was ever recovered. (3/8 Tr. 28).

Engram acknowledged that the informant, Maurice, was helping the DEA because he was facing ten years in prison and that in order to reduce his sentence "he had to get someone else to sell [Engram] some drugs." (3/8 Tr. 11, 31-32, 57). He acknowledged that Maurice was present for the first sale "to make sure this thing happened," but to make a better case, the DEA wanted to make buys without Maurice present. (3/8 Tr. 29). Maurice was aware that, after the first sale, it was in his interest "that [Engram] get the drugs from Mr. xxxxxxxs without Maurice being there." (3/8 Tr. 29-30).

2. The Defense Case

Mr. xxxxxxxs testified that he was raised in Temple Hills, Maryland as the only child of a radiologist and an accountant. (3/9 Tr. 69-70, 88-89). Growing up, his parents had provided him with an affluent lifestyle (including annual family trips to Europe, Hawaii, etc.). (3/9 Tr. 88; 3/10 Tr. 59-61). He had always held a job from the time he was 15 years old and, until the transactions at issue, had never dealt in drugs. (3/10 Tr. 73-75; 103). Mr. xxxxxxxs acknowledged that he distributed drugs to the undercover officers on August 11th, 23rd and 31st, but testified that he did so only as a result of threats from the DEA informant, Maurice. (3/9 Tr. 70, 90). He testified that he did not go to the police because he was afraid Maurice would harm him or his parents when he found out. (3/9 Tr. 93; 3/10 Tr. 79-80) ("[I]f somebody does call the police or tells somebody, they will make sure that you won't do it again. . . . You won't be around to talk.").

Mr. xxxxxxxs knew Fats and his brother "Muscles" from growing up in the same neighborhood. (3/9 Tr. 69-72). About a year before the trial, Mr. xxxxxxxs started seeing Maurice, whose last name he did not know, over at Fats's and Muscles's house (3/9 Tr. 72-73). On August 10, 1994, Maurice paged Mr. xxxxxxxs from Fats's house and told him he wanted Mr. xxxxxxxs to do something for him and that it was "in the best interests of my best health to get over there now." (3/9 Tr. 73-74). When Mr. xxxxxxxs arrived, Maurice told him that he wanted him to pick a package up for him the next day. (3/9 Tr. 74). When Mr. xxxxxxxs tried to leave, Maurice blocked his exit and said, "You know, you're not going anywhere until I know you're doing this, get this package for me and bring it back and give it to my buddy." (3/9 Tr. 74). Maurice also threatened that, if Mr. xxxxxxxs did not agree, he would "be around my mother's house" and "he was gonna do something to me." (3/9 Tr. 74-75). When Maurice said "deliver the package tomorrow or else he's gonna do something to me," Mr. xxxxxxxs interpreted that as a death threat. (3/9 Tr. 75, 92; 3/10 Tr. 79). Although Mr. xxxxxxxs did not actually see a gun, Maurice delivered the threat with his hand over his shirt and inside his pants as if he was going to pull a weapon. (3/9 Tr. 92-93).

On August 11th, Maurice twice paged Mr. xxxxxxxs and told him to go meet someone named Steve at the nearby Amoco station and to bring the package Steve would give him to Fats's house. (3/9 Tr. 76). Mr. xxxxxxxs said he would go but did not. Maurice then paged him a third time and said to "stop playing with him and to go get the package and bring it over there." (3/9 Tr. 76). Mr. xxxxxxxs then drove to the Amoco station, where he was approached by Steve, who gave him a package and told him to take it to Fats's house. (3/9 Tr. 76-77). When Mr. xxxxxxxs pulled into Fats's driveway, Maurice approached him and instructed him to get in the Pathfinder truck driven by the undercover officers. (3/9 Tr. 79). After the exchange, Mr. xxxxxxxs asked Fats to get in Mr. xxxxxxxs's car. Driving away, he asked Fats why Maurice was making him do this but Fats said he did not know and asked Mr. xxxxxxxs to take him back to his house. (3/9 Tr. 79). After dropping Fats off at his house, Mr. xxxxxxxs returned to the Amoco and gave Steve the money he had received from the undercover officers. (3/9 Tr. 80). On August 22nd, Mr. xxxxxxxs received several pages he thought were from Maurice, so he did not call back. The next day, he got the same page, and returned it. It was "Mike" (Engram), seeking to do a deal similar to that on August 11th. (3/9 Tr. 80). Mr. xxxxxxxs went along with the conversation so as not to have word get back to Maurice that he was not cooperating. (3/9 Tr. 80-81). Maurice then called and told Mr. xxxxxxxs to meet Steve at the Amoco station and deliver the package to Mike at Hechinger Mall. Mr. xxxxxxxs said he would do so but did not. (3/9 Tr. 81). At approximately 2:15 p.m. (15 minutes after he was to have arrived at the mall), Maurice called again and told him to go the gas station. (3/9 Tr. 81-82). About ten minutes later, Mike called to find out why Mr. xxxxxxxs was not there yet, and said he was going to call Maurice to find out what was up. Mr. xxxxxxxs said not to do that and assured Mike he was on his way. (3/9 Tr. 82). After another call from Maurice, Mr. Wiliams did go meet Steve, pick up the package, and take it to Hechinger Mall where he exchanged it for money. (3/9 Tr. 82-83). He then returned to the Amoco station and delivered the money to Steve, who gave him $50. (3/9 Tr. 83).

When Mike called again on August 30th, Mr. xxxxxxxs again went along with the conversation concerning another deal. Maurice then called and said to do whatever Mike said. When Mike called the next day and said he wanted another ounce this time, Mr. xxxxxxxs told him he would have to call him back about the price. (3/9 Tr. 83). Maurice then called him again and told him the price, which he relayed to Mike. (3/9 Tr. 84). Mr. xxxxxxxs again got the package from Steve at the Amoco station, but Steve said that he would meet Mr. xxxxxxxs at the Hechinger Mall to pick up the money rather than wait at the Amoco. (3/9 Tr. 84-85). On the way to the mall, Mr. xxxxxxxs picked up his friend Harold Smith at a barber shop on Benning Road. (3/9 Tr. 85-86). When he got to the mall, he parked right by Steve's car -- a gray Caprice Classic. (3/9 Tr. 85-86, 179). After the exchange with Mike and Shawn, Mr. xxxxxxxs jogged back to Steve's car, gave Steve the money, got back in his own car, and drove away. (3/9 Tr. 86; 3/10 Tr. 8-9). (8) He picked his aunt up and drove her to the pharmacy on 11th Street. (3/9 Tr. 87). Shortly thereafter he was stopped and searched by the police. (3/9 Tr. 87-88).

After Mr. xxxxxxxs disputed the prosecutor's statement that he was "kind of talking in code throughout the transcript" (3/9 Tr. 134-36), the court began its own interrogation, picking up the prosecutor's theme:

THE COURT: Why don't you ever use "drugs" or speak plainly? Why do you just use codes or words that somebody overhearing can't understand, like "okay" or whatever like that? Why do you do that?



THE WITNESS: Why don't I ever use the word "drugs"?



THE COURT: The actual amount and things like that. Since you aren't in the drug business, why don't you explain plainly what you're selling here?



THE WITNESS: I was just . . . responding back to whatever question he was asking me, Your Honor. That's all.

(3/9 Tr. 138). (9)

The prosecutor cross-examined Mr. xxxxxxxs about his finances, including his car ownership history. He testified that his first car was a Volkswagen Rabbit, purchased for him by his mother when he was 20 years old (3/9 Tr. 89; 3/10 Tr. 61). In 1990, he traded the Rabbit in for a 1985 Maxima. That car was later traded in for a 1987 Maxima, which he made payments on before trading it in for an Acura Legend, which he also financed. (3/10 Tr. 62-63). In June 1993, Mr. xxxxxxxs traded that car in for a used 1988 Mercedes costing $18,000 ($21,000 with interest on his loan, which was cosigned by his girlfriend). (3/9 Tr. 89; 3/10 Tr. 14-16, 67). In April 1994, he paid the balance on the Mercedes with cash payments of $600 and $5200. (3/10 Tr. 19, 22). Mr. xxxxxxxs then traded that car in (getting a $14,500 credit and adding $4000 cash) on a 1992 Lexus ES-300 costing $23,000. (3/10 Tr. 16-18). Three days later, he had an accident that put that car in the repair shop for almost two months. (3/10 Tr. 16-17). In May, he made cash payments to the dealership of $1325 and $1500 (for damages) on the Lexus. (3/10 Tr. 19-21). The next month he paid a final $2000 cash on the damaged Lexus. (3/10 Tr. 21-22). In late June 1994, Mr. xxxxxxxs got a $19,500 credit on the repaired Lexus towards purchase of a 1990 Lexus LS 400, costing $24,500, the balance to be financed. (3/10 Tr. 22-28, 65). (10) The government also asked Mr. xxxxxxxs about a $2000 downpayment on a financed motorcycle (3/10 Tr. 28, 41), some purchases he made at Circuit City, and a payment he made on his cellular phone bill (3/10 Tr. 28-31). (11)

Mr. xxxxxxxs explained that he had worked continually from the time he was of legal age and had paid for his cars with savings from those jobs (12) and contributions from his parents totalling approximately $5000 to $6000 (3/10 Tr. 67, 73-75; 3/13 Tr. 24). He testified that from 1991 to the time of his arrest, he had been employed by a moving company, earning $1200 per month, paid in cash; the defense introduced into evidence photographs of the moving company's offices and pay stubs that had been seized from Mr. xxxxxxxs's person at the time of his arrest. (3/10 Tr. 36-37, 71-72, 75-76; 3/13 Tr. 8-11, 15-16). When he acknowledged that "I never filed taxes. It was all under the table," the prosecutor asked him, "So you're willing to do things that are not quite on the up-and-up?" (3/10 Tr. 37). Defense counsel's objection to the prosecutor's characterization and argumentative tone was overruled:

THE COURT: "Not quite on the up-and-up." I guess she could say it's criminal, couldn't she?



[DEFENSE COUNSEL]: Well, she could say that, but it's not a tax trial.



THE COURT: No. A violation of the internal revenue laws is a criminal offense, so she can say that. Overruled.

(3/10 Tr. 37-38).

3. The Government's Rebuttal Case

DEA Agent Robert Valentine testified for the government on rebuttal that during the booking process Mr. xxxxxxxs had stated

that Fats was his boy and that Fats had arranged the August 11th transaction. (3/13 Tr. 26-27). (13)

MPD Officer David Lawson testified that he was on surveillance at the Hechinger Mall parking lot on August 31st. (3/13 Tr. 37-38). After Mr. xxxxxxxs left the undercover vehicle and headed back to his car, Lawson drove around to where Mr. xxxxxxxs's car was parked. He saw three people standing between Mr. xxxxxxxs's car and the car parked next to it. (3/13 Tr. 39-40). Mr. xxxxxxxs walked up to those people and appeared to engage in a brief conversation. Lawson did not observe anything change hands. Mr. xxxxxxxs and one of the three individuals then got into Mr. xxxxxxxs's car and the other two got in the other car. Lawson then followed Mr. xxxxxxxs as he left the parking lot. (3/13 Tr. 40).

Agent Engram was recalled to testify that he did not inform Maurice of where and when the second and third sales were to take place, in part because he was concerned that telling an informant those details could compromise officer safety. (3/13 Tr. 49-51, 53-54).

4. The Denial of the Missing Witness Instruction

After the government had rested its rebuttal case and the court had denied Mr. xxxxxxxs's renewed motion for judgment of acquittal, the court conducted a jury instruction conference at which defense counsel requested that the court give a missing witness instruction concerning the confidential informant, Maurice:

I think that Maurice, given his role as a confidential informant -- on several occasions, I have made the point that I don't know his name. Today, when I told [the prosecutor] that I was going to be requesting the instruction, she today told me his name. In fact, I went so far as last week when [the prosecutor] mistakenly referred to Maurice xxxxxxxs, I had my investigator scampering downstairs to run Maurice xxxxxxxs in the records to see if that was our person.

(3/13 Tr. 68-69, 70-71). The government argued that Maurice had been available to the defense because, although the defense did not know his true name, "people Mr. xxxxxxxs is friends with -- Fats and Muscles -- they know Maurice." (3/13 Tr. 71). The prosecutor also argued that "[a]t no point in time has [defense counsel] asked me to produce Maurice or asked what his full name and address are. I could have done that." (3/13 Tr. 71). Defense counsel explained that he did not file a motion for disclosure of the true identity of the government's confidential informant because it would have been denied as frivolous. (3/13 Tr. 72) ("[Y]ou're not going to order them to disclose a confidential informant. In this day and age, are you kidding me."). The court stated simply that it would not give the instruction. (3/13 Tr. 72, 73).

5. The Prosecutor's Rebuttal Argument

At the very end of her rebuttal argument, the prosecutor argued Mr. xxxxxxxs's failure to pay taxes as showing a bad character:

We have him spending all kinds of money, and he doesn't really have any kind of legitimate income. This is the same person that admits he doesn't pay taxes. He doesn't file his income tax returns. That all the money that he says was paid in cash under the table. But then he's got some pay stubs. Yet, curiously when I ask him, well, if we went to the state, would they have any record of this, he said, no, it's all under the table. I mean, what kind of person is this?

(3/13 Tr. 117) (emphasis added).

SUMMARY OF ARGUMENT

The government's evidence of Mr. xxxxxxxs's predisposition to sell drugs was very weak. It was undisputed that Mr. xxxxxxxs had at times ignored Engram's pages and that, as to each transaction, he had arrived significantly late, and only after receiving one or more calls inquiring as to his whereabouts. Because Mr. xxxxxxxs had no prior convictions, the government was forced to rely on its argument that Mr. xxxxxxxs's "yeahs" and "okays" on the audiotapes showed that he spoke drug dealer "code," along with its attempt to cast doubt on his explanations as to the source of the cash he had spent in the months preceding the transactions. The government tried to introduce hearsay from the informant Maurice that he had sent Engram to Mr. xxxxxxxs because he knew him to be a drug dealer, but the court would not permit it. In the course of arguing that she should be allowed to put in evidence of a prior Maryland drug arrest, the prosecutor acknowledged that it was "essential" that the government show some prior bad act in order to counteract Mr. xxxxxxxs's presentation of himself "as a completely innocent person." (3/9 Tr. 16-17). In the end, the Maryland arrest did not come in.

Against this slim record, therefore, the improper reference to Mr. xxxxxxxs's prior arrest by MPD and the government's use of his tax crimes to argue bad character take on great significance. The trial court should have granted the defense request for a mistrial when Engram blurted out, contrary to the prosecutor's explicit instruction, that he had identified Mr. xxxxxxxs through an MPD arrest photograph. Admission of that kind of "mugshot" testimony has been held to be reversible error. The court's instruction that Mr. xxxxxxxs had never been convicted of a crime did not eliminate the taint from the jury's knowledge that Mr. xxxxxxxs nevertheless had a history of trouble with the police. Moreover, Mr. xxxxxxxs's admitted tax evasion was too dissimilar to drug trafficking to be probative of a propensity or predisposition to commit the latter crime. The prosecutor therefore overstepped the bounds of proper advocacy when she argued that Mr. xxxxxxxs's tax crimes showed him to be a bad person with a general propensity to break the law. Each of these errors on its own caused Mr. xxxxxxxs substantial prejudice. Together, they clearly require a new trial.

In addition, Mr. xxxxxxxs was deprived of a fair trial when the trial judge took on the role of an advocate for the government in its cross-examination of him. By asserting his belief that Mr. xxxxxxxs had spoken to the undercover officers in drug dealer "code," the judge took the government's side in one of the most vigorously contested points in the trial. On several other occasions, and despite prior admonitions from this Court, the district court engaged in aggressive cross-examination designed to challenge, rather than clarify, Mr. xxxxxxxs's testimony. By joining in a "tag team" approach with the prosecutor, the judge sent a message about his view of Mr. xxxxxxxs's testimony that was too plain for the jury to ignore.

The court also erred when it refused to instruct the jurors that they could draw an adverse inference against the government because of its failure to call its confidential informant as a witness. A missing witness instruction is appropriate whenever a party has it peculiarly within its power to produce a witness whose testimony would elucidate the transaction and fails to do so. Here, the record is clear that the confidential informant was peculiarly available to the government because the defense did not have access to him during the trial, or even know his true name. Moreover, as is shown by the fact that the government sought unsuccessfully to use Maurice's out-of-court hearsay statements, his testimony would have elucidated the government's case. The inference is natural that the government would have called him to give live testimony if it had believed such testimony would be favorable. An instruction explaining the adverse inference flowing from the government's decision not to do so could well have made the difference between conviction and acquittal in this close case. ARGUMENT

I. INADMISSIBLE TESTIMONY REFERRING TO MR. xxxxxxxS'S PRIOR ARREST, COMBINED WITH THE PROSECUTOR'S IMPROPER CROSS- EXAMINATION AND CLOSING ARGUMENT SUGGESTING THAT HIS FAILURE TO PAY TAXES SHOWED A BAD CHARACTER, PREJUDICED MR. xxxxxxxS ON THE ISSUE OF PREDISPOSITION BY IMPROPERLY SUGGESTING A GENERAL CRIMINAL PROPENSITY.

A. Standard of Review

Defense counsel promptly moved for a mistrial after Engram improperly told the jury that the photograph he used to identify Mr. xxxxxxxs was an MPD photo from a prior arrest, but the court decided to deny the motion and attempt to cure the error with an instruction instead. (3/7 Tr. 76-79). "'The decision whether to grant a mistrial generally rests within the sound discretion of the trial court, and the single most important factor in making that determination is the extent to which the defendant has been prejudiced.'" United States v. Eccleston, 961 F.2d 955, 959 (D.C. Cir. 1992) (quoting United States v. Tarantino, 846 F.2d 1384, 1413 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988)).

With respect to the government's improper use of Mr. xxxxxxxs's failure to pay taxes, defense counsel objected unsuccessfully to the prosecutor's characterization of the evidence as indicating a "willing[ness] to do things that are not quite on the up-and-up" (3/10 Tr. 37-38). Given the court's ruling on that objection, which not only approved the prosecutor's propensity inference but further exacerbated the harm by pointing out that the failure to file taxes is a crime, a similar objection to the prosecutor's use of the evidence in rebuttal argument would have been futile and would only have highlighted the prosecutor's propensity argument. Therefore, this Court should treat both of the government's improper uses of the tax evidence as preserved for appellate 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 inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather . . . whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.'" United States v. Fowler, 608 F.2d 2, 12 (D.C. Cir. 1979) (quoting Kotteakos v. United States, 328l U.S. 750, 764-65 (1946)). "'The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.'" Id. (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)).

B. The Prejudice From the Agent's Improper Reference to Mr. xxxxxxxs's Prior Arrest Was Not Eliminated By the Court's Attempted Curative Instruction Where the Improper Testimony Struck at the Heart of His Entrapment Defense.

Given the weakness of the government's predisposition evidence, the improper testimony that Mr. xxxxxxxs had previously been arrested by the MPD was highly prejudicial to his defense, even in light of the "curative" instruction to the effect that he had no actual convictions. In United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1992), this Court granted a new trial where the district court had ordered the jury to disregard improper hearsay testimony but refused to grant a mistrial. The Eccleston Court applied the "substantial impact" test, under which "'reversible error exists if the [inadmissible] evidence, when viewed in the context of the whole trial, is so highly prejudicial that it would have had a substantial impact on the jurors' verdict.'" 961 F.2d at 959 (quoting United States v. Alfaro, 935 F.2d 64, 68 (5th Cir. 1991) (citation omitted)).

Here, as in Eccleston, "[b]ecause the attendant jury instruction was insufficient to counterbalance the highly prejudicial content of the inadmissible testimony, the district court abused its discretion when it denied [the defendant's] mistrial motion." 961 F.2d at 962. Engram's improper testimony about Mr. xxxxxxxs's prior arrest photograph is analogous to the admission of the "mug shot" photograph in Barnes v. United States, 365 F.2d 509, 510-12 (D.C. Cir. 1966), which was found prejudicial error despite the fact that the prison numbers had been covered with tape. In Barnes, this Court held that "[a] photograph which on its face reveals the existence of . . . a criminal record is . . . inadmissible when the defendant's character has not been placed in issue." Id. at 510. (14) The court found prejudicial error and reversed the defendant's conviction, noting that a mug shot photograph creates "the inference that the person involved has a criminal record, or has at least been in trouble with the police," id. at 510 (emphasis added), and concluding that "[t]he probability that [the inartfully redacted mug shot] impressed upon the jury the fact of appellant's prior criminal record is too substantial for us to ignore." Id. at 511. See also, e.g., United States v. Fosher, 568 F.2d 207, 214 (1st Cir. 1978) (following Barnes and noting that most courts have held that it is error to display to the jury photographs that convey the fact of "prior trouble with the law"). Here, as in Eccleston, "[m]easured against the frailty of the government's case, the impact of this testimony was hightly prejudicial" and, therefore, would have had a "substantial impact" on the jury's verdict notwithstanding the court's "curative" instruction. 961 F.2d at 961. The government had the burden in this case of proving beyond a reasonable doubt that Mr. xxxxxxxs was predisposed to sell drugs. That burden was particularly difficult for the government to meet in this case because Mr. xxxxxxxs -- a person who, under the government's theory, had worked his way up from making street sales to become a mid-level drug dealer (3/9 Tr. 42) -- had never been convicted of any criminal offense.

The prosecutor acknowledged her need for evidence suggesting prior bad acts by Mr. xxxxxxxs in the course of arguing that the government should be permitted to put in evidence that Mr. xxxxxxxs had once been charged with possession with intent to distribute drugs in Prince George's County (the case was ultimately dismissed): "I think it is essential in this kind of case" because Mr. xxxxxxxs "is presenting himself as a completely innocent person." (3/9 Tr. 16-17). In arguing against admission of the Prince George's County case, the defense also pointed to the dearth of proper predisposition evidence:

This is not a mountain out of a molehill . . . . As far as predisposition in this case, this is it. . . . They don't have anything to suggest that this guy has never ever sold drugs before, except this bogus arrest in Prince George's County. It has the capacity to overwhelm the presumption of innocence, which he is still entitled to even in an entrapment case. The only thing they have got is that he spent money on cars, and I have got a lot of responses for that. It's the last thing I'm worried about. He's the only son of two professionals.

(3/9 Tr. 25) (emphasis added). The court ruled that the United States could put in testimony about the Prince George's County case as evidence of predisposition to sell drugs (3/9 Tr. 30-31), but the prosecutor later decided not to use that evidence (3/10 Tr. 88), leaving Engram's bombshell testimony about the MPD arrest photo as the only suggestion to the jury that Mr. xxxxxxxs had ever had a run-in of any kind with the law.

The fact that the jury was told Mr. xxxxxxxs had no actual convictions could not eliminate the prejudice from the fact of his prior arrest. As Barnes and other mugshot cases recognize, prejudicial error can come not just from evidence of prior criminal convictions, but from any suggestion that one has "been in trouble with the police." Barnes, 365 F.2d at 510. The suggestion of a general criminal propensity is particularly devastating in an entrapment case, where the entire case hinges on the government's ability to establish the defendant's pre-existing propensity to commit the crime charged.

C. The Government Misused Mr. xxxxxxxs's Failure to Pay Taxes To Suggest A General Propensity to Break the Law.

Mr. xxxxxxxs's failure to file taxes was not admissible to establish a predisposition to distribute drugs. While "other crimes evidence" is admissible in an entrapment case to show that the defendant "had a propensity to commit crimes such as those he is accused of committing," United States v. Burkley, 591 F.2d 903, 922 (D.C. Cir. 1978), cert. denied, 440 U.S. 966 (1979) (emphasis added), failure to file tax returns is so completely dissimilar to drug trafficking as to have no tendency to prove predisposition to commit that offense. See United States v. Blankenship, 775 F.2d 735, 739-740 (6th Cir. 1985) (other crimes evidence admissible to show predisposition "only when the other crimes are of the same nature as those charged;" reversing where defendant's taped statements about prior thefts and burglary schemes not probative of predisposition to deal in firearms); United States v. Bramble, 641 F.2d 681, 682 (9th Cir. 1981) (prior crimes evidence not relevant in entrapment case unless it proves defendant "was engaged in illegal operations in some way similar to those charged in the indictment;" reversing where prior marijuana possession not probative of predisposition to distribute cocaine), cert. denied, 459 U.S. 1072 (1982); United States v. Daniels, 572 F.2d 535, 538 (5th Cir. 1978) (reversing where possession of shotgun "appears to be of no probative value with respect to predisposition to sell narcotics and to be substantially prejudicial").

At most, Mr. xxxxxxxs's failure to file tax returns was admissible to impeach his testimony that part of the money used to pay for his cars had come from his job as a mover (his parents providing the remainder). However, the prosecutor quickly moved beyond asking Mr. xxxxxxxs whether his job could be verified through tax records and shifted into asking him whether his failure to pay taxes on "under the table" cash was indicative of a general "willingness to do things that are not quite on the up-and-up?" (3/10 Tr. 37). In so doing, the prosecutor used the prior tax violation for the one purpose that is expressly forbidden by the rules of evidence: to establish that Mr. xxxxxxxs is a person of bad character with a general propensity to commit crimes. See Fed. R. Evid. 404; United States v. Perholtz, 842 F.2d 343, 358 (D.C. Cir. 1988) (prior bad act evidence cannot be used "'to show the likelihood that, having once fallen into sin, a second slip is likely'") (citations omitted). The prosecutor made the same error in rebuttal closing when she argued:

We have him spending all kinds of money, and he doesn't really have any kind of legitimate income. This is the same person that admits he doesn't pay taxes. He doesn't file his income tax returns. That all the money that he says was paid in cash under the table. But then he's got some pay stubs. Yet, curiously when I ask him, well, if we went to the state, would they have any record of this, he said, no, it's all under the table. I mean, what kind of person is this?

(3/13 Tr. 117) (emphasis added). This argument encouraged the jury to convict the defendant because he was a "bad man" who did not pay his taxes and is completely at odds with the underlying premise of our criminal justice system that the defendant must be tried for what he did, not who he is. See, e.g., United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985).

The prosecutor's use of Mr. xxxxxxxs's failure to pay taxes to suggest a general criminal propensity caused him "substantial prejudice" on the facts of this case. Both the "closeness of the case" and the "centrality of the issue affected" (Gaither, 413 F.2d at 1079) weigh in favor of reversal since, as discussed supra at 24-25, the case was very close on the central issue of predisposition. Having decided not to introduce the hotly disputed evidence of the Prince George's County arrest, the government's only evidence contradicting Mr. xxxxxxxs's denial of any predisposition to deal drugs was his cash expenditures, for which he provided legitimate explanations. Finally, there were no steps taken to "mitigate the effects of the error." Gaither, 413 F.2d at 1079. To the contrary, the court essentially endorsed the improper propensity inference: when defense counsel objected that the prosecutor's question about Mr. xxxxxxxs's general willingness to do things that were not on the "up-and-up" was argumentative and an improper characterization, the court responded that "[a] violation of the internal revenue laws is a criminal offense, so she can say that." (3/10 Tr. 38).

Even if the court were to conclude that neither the arrest photograph reference nor the improper argument of the tax crimes was prejudicial by itself, certainly when considered together and against the lack of evidence that Mr. xxxxxxxs was predisposed to commit the crimes with which he was charged, these prior bad acts must have had an effect on the verdict by suggesting to the jury that Mr. xxxxxxxs had a propensity to commit crime in general.

II. THE COURT DEPRIVED MR. xxxxxxxS OF A FAIR TRIAL BY TAKING ON THE ROLE OF AN ADVOCATE FOR THE GOVERNMENT'S THEORY OF THE CASE.

A. Standard of Review

Because defense counsel did not object to the court's cross-examination of Mr. xxxxxxxs, the questioning is reviewed for plain error. See United States v. Winstead, 74 F.3d 1313, 1319 (D.C. Cir. 1996) (applying plain error standard of United States v. Olano, 113 S. Ct. 1770 (1993), to judicial questioning of witnesses).

B. The Court's Aggressive Cross-Examination of Mr. xxxxxxxs Was Obvious Error That Seriously Affected the Fairness of His Trial.

This Court has placed "strict limits on the [trial] judge's power to intervene in the conduct of the trial, particularly in the examination of witnesses," United States v. McCord, 509 F.2d 334, 348 (D.C. Cir. 1974), cert. denied, 421 U.S. 930 (1975), repeatedly emphasizing that "the judge must remain 'a disinterested and objective participant in the proceedings.'" United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969) (citation omitted). Although a judge may question witnesses to clarify their testimony, the court must "steer clear of questioning that extends to advocacy." Winstead, 74 F.3d at 1319. See also Barbour, 420 F.2d at 1321 ("[P]rinciples both fundamental and indestructible in our criminal law exhort [the judge] to hold to a minimum his questioning of witnesses in a jury trial. Interrogation of witnesses tends to assimilate the court's role with the advocate's . . ."); Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964) ("a presiding judge can control the trial without participating actively in examination of witnesses").

Here, the trial judge's cross-examination of Mr. xxxxxxxs put him in the role of advocate for the government's theory of the case. His repeated and aggressive inquiries of Mr. xxxxxxxs, contrasted with his failure to cross-examine the government's witnesses, surely left the jury with the clear impression that the court agreed with the government on certain critical factual disputes and generally did not find Mr. xxxxxxxs's defense credible. Specifically, the court's questioning sent the message that the court thought Mr. xxxxxxxs had spoken in drug dealer "code," thought Maurice's initial threat was not sufficient to justify continued obedience to his demands, and was skeptical of Mr. xxxxxxxs's testimony about receiving his salary in cash. These were not collateral points but went to the heart of the central issues of inducement, predisposition, and Mr. xxxxxxxs's credibility. See United States v. Wyatt, 442 F.2d 858, 860-81 (D.C. Cir. 1971) (conviction reversed where trial judge's extensive questioning of defendant and alibi witnesses gave jury impression that court believed defendant was guilty).

Most egregious was the court's clear assertion of its belief that Mr. xxxxxxxs had acted like a drug dealer by using "code" in speaking to the undercover officers: "Why do you just use codes or words that somebody overhearing can't understand?" (3/9 Tr. 138). See also 3/10 Tr. 85 (court referring in front of the jury to "all the places where this witness was talking in code"). The issue whether Mr. xxxxxxxs had himself spoken in code or rather had simply gone along with whatever the undercover officers said, could not have been more hotly disputed. Both sides spent a great deal of time attempting to demonstrate to the jury the correctness of their view. By coming down so clearly on the government's side of that fundamental debate, the court sent the unmistakable message that it thought Mr. xxxxxxxs had preexisting knowledge of the drug business, i.e., that he was a predisposed drug dealer, not an entrapped innocent.

The court also intervened to quiz Mr. xxxxxxxs at length on the exact wording of each of Maurice's threats. (3/9 Tr. 161-63, 175-76). When Mr. xxxxxxxs explained that Maurice in his later calls would reference his initial threat "either to deliver the drugs or else he was gonna do something to me or my family," the court showed incredulity, recasting Mr. xxxxxxxs's testimony in a way designed to make his claim of inducement appear ridiculous: "You were going to deliver the drugs from then for the next 20 years because he said [']or else['] one time?" (3/9 Tr. 162-63). The court also joined in the prosecutor's questioning as to the timing of Maurice's calls. (3/9 Tr. 173-176). The court took the government's side on the issue whether Mr. xxxxxxxs had ever owned the car in which he had the accident. See 3/10 Tr. 26-27 ("[Y]ou must have owned it. They wouldn't have given you money for it if you didn't own it."). Finally, the court three times in a row asked Mr. xxxxxxxs whether he was sure the moving company paid his salary in cash, not by check. (3/13 Tr. 15-16). Once again, the court appears to have been challenging Mr. xxxxxxxs's testimony rather than attempting to elucidate it.

This is not a case in which the court merely clarified "fuzz[y]," "inarticulat[e]", or "reluctantly given" testimony. See Barbour, 420 F.2d at 1321. Compare United States v. Spencer, 25 F.3d 1105, 1109-10 (D.C. Cir. 1994) (court's questions sought only to clarify details and, if anything, assisted the defense). The prosecutor in this case did an able job of highlighting the points of dispute and pressing Mr. xxxxxxxs on what the government perceived as soft spots in his defense. Indeed, the court went out of its way to compliment the prosecutor on her "good cross-examination" and defense counsel agreed that it was "very, very good." (3/10 Tr. 88). The prosecutor's questions were clear and they were answered forthrightly. When there was confusion, she cleared it up. There was absolutely no need for the court to join in. Where the prosecutor and the court take turns asking essentially the same line of questions, the jury can reasonably infer that the court is siding with the government on the point at issue. See United States v. Filani, 74 F.3d 378, 387 (2d Cir. 1996) (judge's questioning of defendant deprived him of fair trial where court joined in cross-examination and created "tag team" situation which gave jury "impression of bias").

The court's suggestions of agreement with the government were devastating, for "'jurors hold the robed trial judge in great awe and reverence' and 'his lightest word or intimation is received with deference and may prove controlling.'" Barbour, 420 F.2d at 1321-22 (quoting Hawkins v. United States, 310 F.2d 849, 852 (D.C. Cir. 1962), and Starr v. United States, 153 U.S. 614, 626 (1894)). See United States v. Mazzilli, 848 F.2d 384, 388 (2d Cir. 1988) ("the jury cannot be regarded as having freely come to its own conclusions about the defendant's credibility when the court has already indicated, directly or indirectly, that it disbelieves his testimony"). The court's stock instruction to the jurors concerning their exclusive role as factfinder (15) could not, therefore, have eliminated the emotional impact of the judge's vigorous and one-sided interrogation of Mr. xxxxxxxs. See Quercia v. United States, 289 U.S. 466, 472 (1933) (court's repudiation of defendant's testimony not cured by instruction that judge's opinion of evidence was not binding on jury); Blunt v. United States, 244 F.2d 355, 366 (D.C. Cir. 1957) (judge's improper interrogation of defense witnesses not cured by standard instruction that it was for jury to find facts).

Significantly, this Court previously has admonished the district judge in the instant case that excessive questioning of witnesses by the trial court can constitute reversible error. See United States v. Rawlings, 73 F.3d 1145, 1146 n.1 (D.C. Cir. 1996) ("we remind the district court that 'overzealous quizzing by the judge . . . [may cause] a breach of the atmosphere of judicial evenhandedness that should pervade the courtroom'") (citation omitted); United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.) ("We nonetheless feel constrained to once again put forth the admonition that '[p]articularly when the questioning is designed to elicit answers favorable to the prosecution, "it is far better for the trial judge to err on the side of [a]bstention from intervention in the case."' . . . '[p]rosecution and judgment are two quite separate functions in the administration of justice; they must not merge.") (citations omitted), cert. denied, 493 U.S. 835 (1989). The same district judge's cross-examination of another defendant who testified that he was entrapped is currently under challenge in this Court. See Briefs in United States v. Kirkland, No. 94-3180. This Court should hold that the trial judge plainly crossed the line in this case and, in so doing, deprived Mr. xxxxxxxs of a fair trial.

III. THE COURT ERRED IN DENYING MR. xxxxxxxS'S REQUEST FOR A MISSING WITNESS INSTRUCTION WHERE THE GOVERNMENT'S FAILURE TO CALL ITS CONFIDENTIAL INFORMANT AS A WITNESS SUPPORTED THE INFERENCE THAT HIS TESTIMONY WOULD HAVE BEEN UNFAVORABLE TO THE GOVERNMENT.

A. Standard of Review.

The decision whether to give a missing witness instruction is reviewed for abuse of discretion. United States v. Tarantino, 846 F.2d 1384, 1404 (D.C. Cir. 1988).

B. The Confidential Informant "Maurice" Was Peculiarly Available to the Government and His Testimony Would Have Elucidated the Transactions.

"A trial judge has discretion to give a missing witness instruction 'if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction.'" United States v. Glenn, 64 F.3d 706, 709 (D.C. Cir. 1995) (quoting Graves v. United States, 150 U.S. 118, 121 (1893)). "'If such a person does not appear and one of the parties had some special ability to produce him, the law permits the jury to draw an inference -- namely that the missing witness would have given testimony damaging to that party.'" Glenn, 64 F.3d at 709 (quoting United States v. Pitts, 918 F.2d 197, 199 (D.C. Cir. 1990)).

Here, the government's failure to produce its confidential informant, "Maurice," justified just such an inference and entitled Mr. xxxxxxxs to a missing witness instruction. First, Maurice was peculiarly available to the government. In United States v. Burgess, 440 F.2d 226, 231-32, 235-36 (D.C. Cir. 1970), this Court held that, even where defense counsel declined the court's offer to reopen the defense case in order to attempt to to seek an informer by subpoena, the relationship between the government and the informer "placed it peculiarly within the power of the Government to produce him if we are to give any meaning to the idea expressed by the term 'peculiarly.'" Id. at 232 (Fahy, J.).

The informer was associated with the Government in the development of the case. He participated in bringing appellant into conflict with the narcotics laws. Nothing indicates any break in the association. While it was quite proper for the Government to furnish defense counsel with such information as it could as to the whereabouts of the informer, this created no obligation on the defense to seek the witness by subpoena.

Id. (emphasis added). See also id. at 235-36 & n.3 (Robinson, J., concurring) ("the uncalled informer, as a special agent for the Government in the criminal transactions alleged, was . . . 'peculiarly' available to the government"; "the right to invoke the [missing witness] rule was not waived by defense counsel's refusal to attempt production of the informer as his own witness" because "a party bears no duty to his opponent to call a witness whose relationship to the latter forecasts uncertain and possibly damaging testimony").

In Tarantino, 846 F.2d at 1404, the Court rejected an "automatic inference of exclusive government control" over informants where the defendant made no claim that the informants at issue were in fact unavailable to him. In United States v. Norris, 873 F.3d 1519, 1522 (D.C. Cir.), cert. denied, 493 U.S. 835 (1989), the Court recognized the conflict between Burgess and Tarantino over whether an informant who is in fact available to both sides is "peculiarly available" to the government under the missing witness rule, but did not have to decide the question because the instruction was properly denied for other reasons.

The Court here need not resolve this conflict because, unlike the informant in Norris, Maurice was not in fact available to the defense. Defense counsel made clear on several occasions during the course of the trial that the defense did not have any way of locating Maurice and that defense counsel understood that the government, consistent with its standard practice, would not voluntarily reveal his identity. See 3/9 Tr. 168 ("I don't know his last name"); 3/10 Tr. 55 (prosecutor mistakenly referred to "Maurice xxxxxxxs" and defense sought to clarify Maurice was not related to defendant, stating, "If xxxxxxxs is the last name of Maurice"); 3/10 Tr. 102-03 ("I still to this day do not know Maurice's last name. . . . At some point if the United States wants to [introduce hearsay statements from Maurice to Agent Engram], I need to finally be given the information that the United States has in its possession about Maurice."). The prosecutor waited until she learned that the defense was seeking a missing witness instruction to suddenly reveal Maurice's identity. (3/13 Tr. 70). On these facts, the requirement that the witness be peculiarly available to the government is clearly met.

The second requirement -- that it be reasonable to infer that the reason the controlling party did not call the missing witness is because of concern that his testimony would be unfavorable -- is also met in this case. As this Court has recognized, the Supreme Court's decision in Graves stands for the proposition that a "presumption of unfavorable testimony arises" whenever "unproduced testimony would 'elucidate the transaction.'" Norris, 873 F.2d at 1522 (quoting Graves, 150 U.S. at 121).

The Norris Court held that an adverse inference against the government was not appropriate in an entrapment case where the government had no need for the testimony of the informant because it did not dispute that she had induced the defendant and she had no special knowledge on the issue of his predisposition. Norris differs from this case in several critical respects. First, in Norris, the defendant's testimony did not contradict the government's version of the facts surrounding the transaction. Therefore, there was no reason for the government to call the informant with respect to those facts. 873 F.2d at 1519. Here, Mr. xxxxxxxs's testimony was in direct conflict with Engram's testimony that he had not told Maurice about the second and third deals. It would have been natural for the government, if it believed Maurice's testimony on that issue would have supported its case, to have called him to testify. Unlike in Norris, therefore, the informant's testimony cannot be assumed to have been cumulative. "The informer's testimony would have been cumulative . . . only if we assume, contrary to the very rule under consideration, that the informer's testimony would have been favorable to the government." Burgess, 440 F.2d at 232.

Second, in Norris, the only aspect of the entrapment defense that the informant could have elucidated was her role in inducing the defendant -- something the government did not dispute. "The government left that portion of [the defendant's] testimony unchallenged and substantially untested even by cross-examination." 873 F.2d at 1523. Here, of course, the issue whether Maurice threatened Mr. xxxxxxxs, or had any contact with him at all after the first deal, was at the core of the dispute between the parties. Again, it would be only natural to expect the government to have called Maurice to the witness stand if it believed his testimony would support the government's version of events.

Finally, unlike Maurice, the informant in Norris had nothing unique to add to the government's predisposition case, which relied on the defendant's admitted prior drug dealings and other matters on which the informant "would not be expected to possess special knowledge or testimony." 873 F.2d at 1523. Here, the government claimed that Maurice had directed Engram to Mr. xxxxxxxs and Fats because he knew them to be drug dealers. (3/10 Tr. 101). In fact, the government attempted to introduce Maurice's hearsay to that effect but the court would not allow it. (3/10 Tr. 101-03; 3/13 Tr. 5). It is telling that the government tried to get Maurice's supposed statements before the jury by putting on "[n]ot Maurice[,] [b]ut the agent who interviewed Maurice." (3/10 Tr. 101). (16) In light of the government's actual attempt to use Maurice's out-of-court statements to prove predisposition, the government cannot claim that his live testimony would not have elucidated that element of its case.

In short, Norris was "the odd criminal case in which there is virtually no dispute as to facts." Id. at 1521. The Norris Court therefore concluded that "the only reason why any party would be expected to call [informant] Walters would be for the purpose of corroborating or cumulating . . . appellant's evidence on inducement, an essential element of his defense." Id. at 1523. Because the facts in this case were disputed both as to inducement and predisposition, Norris's reasoning is inapplicable to this case and it was an abuse of discretion to deny the missing witness instruction.

The court's error in denying the missing witness instruction was not harmless. This Court has recognized that an adverse inference from a missing witness instruction is likely to influence the jury's evaluation of the defendant's guilt when the case is close. Glenn, 64 F.3d at 710 (finding court's erroneous decision to give missing witness instruction not harmless as to one defendant). Here, both sides presented strong cases. (17) An adverse inference from Maurice's absence would have affected the jury's evaluation of the central disputed issues of inducement and predisposition. An appropriate missing witness instruction, along with a complementary missing witness argument by defense counsel, could well have tipped the scale in favor of acquittal.

CONCLUSION

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



Respectfully submitted,





A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Eric Von xxxxxxxs





CERTIFICATE OF LENGTH

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



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Eric Von xxxxxxxs have been served by first class mail to Asst. United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 18th day of October, 1996.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

1. "A." refers to pages of the Appendix filed with this brief. Transcript pages are cited by date, all of which are in 1995. For example, 3/8 Tr. 67 refers to page 67 of the trial transcript of March 8, 1995.

2. Mr. xxxxxxxs was not charged with the August 11 sale because it took place in Maryland.

3. The parties stipulated that the following amounts of cocaine base were delivered to the undercover officers: 54.19 grams on August 11, 52.93 grams on August 23, and 79.57 grams on August 31. (3/9 Tr. 65-67).

4. Engram testified that he arranged the second and third deals himself and did not inform Maurice that they were taking place. (3/8 Tr. 43-45).

5. Narcotics expert Tyrone Thomas testified that, in order to ensure that confidential informants do not attempt to benefit themselves by coercing others into selling drugs, the police attempt to monitor all contacts between the informant and a target, either by having the informant wear a body wire or by listening in on or taping any telephone conversations. (3/9 Tr. 49-50, 58-60). Expert Thomas agreed that "[t]he last thing you want is for the guy to just be wandering around, and then coming back, unsupervised, and trying to set up drug dealers." (3/9 Tr. 59). Unless necessitated by circumstances beyond the officers' control, an informant would not be permitted to "run around making phone calls on his own" in the middle of a drug transaction. (3/9 Tr. 59-60).

6. Engram testified that he uses "code words" when he is posing as a drug dealer because drug dealers are always concerned about wiretaps. (3/7 Tr. 105).

7. Engram identified a burgundy Chevrolet shown leaving the parking lot on the government's surveillance videotape as the same car Mr. xxxxxxxs had driven to the second deal. (3/7 Tr. 113-14). The car was not registered to Mr. xxxxxxxs. (3/8 Tr. 37).

8. Mr. xxxxxxxs pointed out for the jury the place on the videotape where Steve's car can be seen pulling out of the parking lot in front of his own car. (3/10 Tr. 86; 3/13 Tr. 7-8).

9. On redirect, defense counsel attempted to show that it was the undercover officer who spoke in code and that Mr. xxxxxxxs merely went along with whatever the officer said. But when counsel asked Mr. xxxxxxxs to read just his answers from one of the transcripts, the court sustained the objection to taking the answers out of context. (3/10 Tr. 82-83). When defense counsel then asked about a couple of specific instances in which the undercover officer had used code and Mr. xxxxxxxs had responded, "yeah," the court interjected: "If you proceed to go over this transcript . . . after I told you not to, I am going to let [the prosecutor] go over all the transcripts and find out all the places where this witness was talking in code . . ." (3/10 Tr. 84-85) (emphasis added).

10. Mr. xxxxxxxs explained that he was test-driving the ES-300 with the intention of buying it when the accident occurred. (3/10 Tr. 16-17, 25, 63). Although the substance of the transactions was not disputed, there was some dispute in terminology as to whether he actually owned the car in which he had the accident and then traded it in as soon as it was repaired, or simply paid the dealership for the damages that occurred while test-driving and then transferred the credits he was to have gotten on the car he damaged to the second Lexus. (3/10 Tr. 23-27, 63-65). Mr. xxxxxxxs explained that he did not drive his Lexus on the days of the three sales because his temporary 30-day tags had expired in early August and he did not have the money to pay for his taxes and hard tags. (3/9 Tr. 100-01; 3/10 Tr. 39-42). The prosecutor introduced a second temporary registration good from August 5, 1994 to September 5, 1994 (3/10 Tr. 43-44; 3/13 Tr. 59), but Mr. xxxxxxxs explained that DMV will not normally issue a second set of temporary tags unless there is a problem locating the title and that the additional 30-day registration he got was a limited kind of registration that just permitted the car to sit, not to be driven. (3/10 Tr. 45-47, 66-67).

11. The only cash expenditure the government attempted to link to the money from the drug sales in this case was an $800 payment on Mr. xxxxxxxs's overdue cellular phone bill that he told the collection department he would pay on August 24th, and then paid on August 30th, the day before the last sale. (3/10 Tr. 30-36, 68-70).

12. Because Mr. xxxxxxxs lived at home with his parents, he had virtually no expenses. (3/9 Tr. 70; 3/10 Tr. 53, 76-77).

13. These statements had been suppressed by Judge Sporkin because the government had not established a knowing waiver of Mr. xxxxxxxs's Miranda rights (A. 15-18), but Judge Greene allowed the government to introduce them solely to impeach Mr. xxxxxxxs's testimony that Fats was not involved in that deal. (3/9 Tr. 108, 116-29; 3/10 Tr. 48).

14. Here, the government never contended that the prior MPD arrest had any bearing on the only aspects of Mr. xxxxxxxs's character placed in issue -- his truthfulness and his lack of propensity to distribute drugs. The prior arrest was concededly inadmissible.

15. "Nothing that I might say or have said . . . are in any way designed to influence you on your finding on the facts because that is entirely your doing. You must decide that. If there is any dispute as to what the facts show -- if I say something about the facts, which is not likely, but if I do, or if the lawyers said something about it, and there is some dispute about what really was shown in the trial, it is your recollection, your remembrance of what the evidence showed that counts." (3/13 Tr. 120).

16. It was at that point that defense counsel argued that the government could not introduce hearsay from Maurice without giving the defense appropriate discovery about him. (3/10 Tr. 103).

17. While waiting for the verdict, the trial judge told counsel he thought the case had been "exceptionally well-tried" and "I don't know how it is going to come out." (3/14 Tr. 12).