ORAL ARGUMENT ON APRIL 7, 1994





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. xxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxx, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________



BRIEF OF DEFENDANT-APPELLANT

DARYN xxxxxxx



_________________________________________________________________





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.





CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Daryn xxxxxxx, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, Daryn xxxxxxx, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr. xxxxxxx of the rulings by the district court, the Honorable Stanley S. Harris, excluding defense evidence (A. at 69-71), permitting the prosecutor to argue that the jury could infer Mr. xxxxxxx' guilt from his post-Miranda silence (A. at 90-92), and instructing the jury that it must convict Mr. xxxxxxx if it had a "strong belief" in his guilt (A. at 93-94).

C. Related Cases:

There are no related cases and this case has not previously been before this Court.

TABLE OF CONTENTS



TABLE OF AUTHORITIES iii



STATUTES AND RULES 1



JURISDICTION 1



ISSUES PRESENTED 1



STATEMENT OF THE CASE 2



A. Proceedings Below 2



B. Statement Of Facts 2



i. The Evidence At Trial 2



ii. The Trial Court's Exclusion Of Evidence Of Sherry xxxxxx's Statements Regarding Her Drug Trafficking To South Carolina 10



iii. The Prosecutor's Comment On Mr. xxxxxxx' Post-Miranda Silence In Rebuttal Closing Argument 12



iv. The Trial Court's Instruction On Reasonable Doubt 13



SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . 16



ARGUMENT



I. THE DISTRICT COURT'S EXCLUSION OF SHERRY xxxxxx'S STATEMENTS AGAINST INTEREST CONCERNING HER DRUG TRAFFICKING TO SOUTH CAROLINA DEPRIVED MR. xxxxxxx OF DUE PROCESS 17



A. Sherry xxxxxx's Statements Were Admissible As Statements Against Interest Under Rule 804(b)(3) Of The Federal Rules Of Evidence 18



B. Evidence Of Sherry xxxxxx's Prior Bad Acts Were Admissible Under Rule 404(b) Of The Federal Rules of Evidence 23



C. The Exclusion Of The Evidence Was Not Harmless 29

II. MR. xxxxxxx WAS DEPRIVED OF DUE PROCESS BY THE PROSECUTOR'S IMPROPER ARGUMENT TO THE JURY THAT IT COULD INFER MR. xxxxxxx' GUILT FROM HIS POST-MIRANDA SILENCE 32

III. THE DISTRICT COURT'S INSTRUCTION TO THE JURY THAT IT MUST FIND MR. xxxxxxx GUILTY IF IT HAD A "STRONG BELIEF" IN HIS GUILT DEPRIVED MR. xxxxxxx OF DUE PROCESS AND DEPRIVED HIM OF A JURY VERDICT BY THE CONSTITUTIONALLY REQUIRED STANDARD OF PROOF BEYOND A REASONABLE DOUBT 42



CONCLUSION 45



CERTIFICATE OF LENGTH 45



CERTIFICATE OF SERVICE 46

TABLE OF CASES AND AUTHORITIES



CASES



Bass v. Nix, 909 F.2d 297 (8th Cir. 1990) 41



Bassil v. United States, 517 A.2d 714 (D.C. App. 1986) 17



Brecht v. Abrahamson, ___ U.S. ___, 113 S. Ct. 1710 (1993)

32, 33, 34



Chambers v. Mississippi, 410 U.S. 284 (1973) 17



Chapman v. California, 386 U.S. 18 (1967) 29, 32, 40, 41



*Doyle v. Ohio, 426 U.S. 610 (1976) passim



Morgan v. Hall, 569 F.2d 1161 (1st Cir.),

cert. denied, 437 U.S. 910 (1978) 39



Sullivan v. Louisiana, ___ U.S. ___, 113 S. Ct. 2078 (1993)

43, 44



*United States v. Aboumoussallem, 726 F.2d 906 (2nd Cir. 1984)

24, 27



United States v. Bailey, 581 F.2d 341 (3rd Cir. 1978) 21



United States v. Baker, 999 F.2d 412 (9th Cir. 1993) 41



*United States v. Barrett, 539 F.2d 244 (1st Cir. 1976) 19



*United States v. Brainard, 690 F.2d 1117 (4th Cir. 1982),

cert. denied, 471 U.S. 1099 (1985) 17, 20, 21, 22



United States v. Butler, 924 F.2d 1124 (D.C. Cir. 1991),

cert. denied, 112 S.Ct. 205 (1991) 35



United States v. Canterbury, 985 F.2d 483 (10th Cir.)

reh'g denied (1993) 36, 41



United States v. Coachman, 727 F.2d 1293 (D.C. Cir. 1984) 21



*United States v. Cohen, 888 F.2d 770 (11th Cir. 1989)

23-24, 25, 28



United States v. Conlin, 551 F.2d 534 (2nd Cir.),

cert. denied, 434 U.S. 831 (1977) 34



* Cases chiefly relied upon are marked with an asterisk



United States v. Crowder, 719 F.2d 166 (6th Cir. 1983)

cert. denied, 466 U.S. 974 (1984) 36



United States v. Edwards, 576 F.2d 1152 (5th Cir. 1978) 41



*United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975)

35, 38



*United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993)

18, 21, 22



United States v. Hale, 422 U.S. 171 (1975) 33, 40



United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986) 21



United States v. Lopez, 777 F.2d 543 (10th Cir. 1985) 19



*United States v. Loriano, 996 F.2d 424 (D.C. Cir. 1993)

17, 43, 45



United States v. Luffred, 911 F.2d 1011 (5th Cir. 1990) 23, 25



United States v. McClure, 546 F.2d 670 (5th Cir. 1977) 24, 25



United States v. McCourt, 925 F.2d 1229 (9th Cir. 1991)

cert. denied, 112 S.Ct. 121 (1991) 23, 25



United States v. Merlos, 984 F.2d 1239,

on reh'g, 8 F.2d 48 (D.C. Cir. 1993) 42, 43, 44



United States v. Miller, 895 F.2d 1431 (D.C. Cir.),

cert. denied, 498 U.S. 825 (1990) 17, 23



United States v. Mock, 640 F.2d 629 (5th Cir. 1981) 19, 22



United States v. Moore, 732 F.2d 983 (D.C. Cir. 1984) 26, 27



*United States v. Shue, 766 F.2d 1122 (7th Cir. 1985)

cert. denied, 484 U.S. 956 (1987) 34, 37, 38, 41



*United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991)

23, 25, 28



United States v. Thomas, 571 F.2d 285 (5th Cir. 1978) 20



United States v. Washington, Slip Op. 92-3237 (D.C. Cir.

January 14, 1994) 23



United States v. Washington, 969 F.2d 1073 (D.C. Cir. 1992)

cert. denied, 113 S.Ct. 1287 (1993) 26, 27



Wainwright v. Greenfield, 474 U.S. 284 (1986) 34



Washington v. Texas, 388 U.S. 14 (1967) 17



STATUTES AND RULES





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

2Rule 403, Federal Rules of Evidence 25, 26 Rule 404(b),

Federal Rules of Evidence 12, 16, 23-27

Rule 804(b)(3), Federal Rules of Evidence 11, 16, 18-20



OTHER AUTHORITIES



2 D. Louisell & C. Mueller, Federal Evidence 140, at 175 24



Criminal Jury Instructions: District of Columbia (3rd ed. 1978),Instruction 2.09 44



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________



No.



_________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



DARYN xxxxxxx, Defendant-Appellant.



_____________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________



BRIEF FOR DEFENDANT-APPELLANT

DARYN xxxxxxx

_____________________________________________



STATUTES AND RULES



Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 11(a)(3), the pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231. A timely notice of appeal having been filed within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED

I. Whether the district court's exclusion of Sherry xxxxxx's statements against interest concerning her drug trafficking to South Carolina deprived Mr. xxxxxxx of due process.

II. Whether Mr. xxxxxxx was deprived of due process when the prosecutor argued to the jury that it could infer Mr. xxxxxxx' guilt from his post-Miranda silence.

III. Whether the trial court's instruction to the jury that it must find Mr. xxxxxxx guilty if it had a "strong belief" in his guilt deprived Mr. xxxxxxx of due process and deprived him of a jury verdict by the constitutionally required standard of proof beyond a reasonable doubt.

STATEMENT OF THE CASE

A. Proceedings Below

On February 18, 1992, the grand jury returned a one-count indictment charging Mr. xxxxxxx with possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii).

A trial before a jury commenced on September 1, 1992, before the Honorable Stanley S. Harris. The jury returned a verdict of guilty on September 8, 1992. On November 19, 1992, Mr. xxxxxxx was sentenced to 324 months imprisonment. Mr. xxxxxxx filed a timely Notice of Appeal.

B. Statement Of Facts

i. The Evidence At Trial

On January 21, 1992, Sherry xxxxxx possessed 1.2 kilograms of crack cocaine in snack food boxes on an Amtrak train. Daryn xxxxxxx, who was travelling with Ms. xxxxxx, but who rented a separate compartment, was indicted and tried on a theory of joint constructive possession. Mr. xxxxxxx agreed that he travelled with Sherry xxxxxx, his fiance, but explained that he was unaware that Ms. xxxxxx possessed cocaine. Because Ms. xxxxxx failed to appear for trial, Mr. xxxxxxx went to trial alone. Mr. xxxxxxx testified in his defense and presented the testimony of Sonya xxxxxxx. For clarity, the testimony of the defense witnesses is interwoven in this statement of facts.

On January 19, 1992, Amtrak reservations were made for S. xxxxxx and one child and for D. xxxxxxx to travel from New York City to Columbia, South Carolina (9/1 at 23). (1) S. xxxxxx and the child reserved a sleeping compartment with two beds, and D. xxxxxxx reserved a sleeping compartment with one bed (9/3 at 172). Mr. xxxxxxx testified that he was present when Ms. xxxxxx made the train reservations for him as well as for herself and her son (9/3 at 172, 198). While Ms. xxxxxx got the information from the reservation agent over the telephone, she dictated the information for both reservations to Mr. xxxxxxx, who wrote down the reservation information (9/3 at 198). Mr. xxxxxxx identified his own handwriting and Ms. xxxxxx's handwriting on pieces of paper that were seized from both defendants after their arrest (9/3 at 219). (2)

Mr. xxxxxxx testified that on the morning of their departure Ms. xxxxxx handed him a box and asked him to carry it for her because her luggage was full (9/3 at 173-174). He did not inspect the box and was not curious about its contents (9/3 at 209). He placed the box in his suitbag (9/3 at 173). Also on the morning of their departure, Ms. xxxxxx packed a bag with snack foods (9/3 at 212).

Mr. xxxxxxx testified that he never attempted to hide the fact that he was travelling with Ms. xxxxxx: they stood together in line at the train station, purchased their tickets together, got food at the Roy Rogers restaurant together, and boarded the train together (9/3 at 176-177). Mr. xxxxxxx bought his ticket with two $100 bills that Ms. xxxxxx had given him (9/3 at 215). When the ticketing agent noticed that Mr. xxxxxxx' bills followed Ms. xxxxxx's bills sequentially, Mr. xxxxxxx commented to the agent, "Yeah, I'm with her . . . . She picked the money up at Western Union" (9/3 at 230). (3)

Before they boarded the train, Mr. xxxxxxx, Ms. xxxxxx, and Ms. xxxxxx's young son went to the Roy Rogers at the train station (9/3 at 217). Ms. xxxxxx's ten year old son, Shakim xxxxxx Daniels, testified that he first saw the boxes of snack foods when he, his mother, and Mr. xxxxxxx were at the Roy Rogers just prior to boarding the train (9/2(pm) at 95, 97). Shakim testified that Mr. xxxxxxx carried the boxes and then gave him the boxes to carry, instructing him to put them on the floor, but not to open them (9/2(pm) at 98). Shakim, who at the time of trial resided with his maternal grandmother, Delores xxxxxx, had first provided the government with this information on the first day of trial (9/2(pm) at 104). In contrast, Mr. xxxxxxx testified that Shakim's mother, Sherry xxxxxx, carried the bag that she had packed with the snack food boxes, and that while at the Roy Rogers he talked to Shakim, as he always did, but denied saying anything to Shakim about the boxes of snack foods or giving Shakim the bag with the boxes (9/3 at 175, 217).

Thomas Cook, an Amtrak investigator, reviewed the train reservations for Ms. xxxxxx and Mr. xxxxxxx (9/2(pm) at 9-10) and decided to attempt to interview them (9/2(pm) at 12). Investigator Cook, along with two Metropolitan Police Department officers, interviewed Mr. xxxxxxx while Detective Centrella interviewed Ms. xxxxxx in her separate compartment (9/2(pm) at 12).

Mr. xxxxxxx agreed to speak with Investigator Cook and denied carrying any contraband (9/2(pm) at 13-14). Without hesitation, Mr. xxxxxxx identified his luggage and permitted Investigator Cook to search it (9/2(pm) at 14, 41). The search did not reveal any contraband. Investigator Cook found two boxes, the contents of which he could not determine until he actually opened them (9/2(pm) at 48). One box contained a heat sealing machine and the smaller box contained numerous small plastic envelopes (9/2(pm) at 15). In addition, a piece of paper with the train reservation information for Sherry xxxxxx and a receipt for a paging device in the name of Daryn xxxxxxx were seized (9/2(pm) at 19-20). According to Investigator Cook, Mr. xxxxxxx denied travelling with anyone (9/2(pm) at 14). In contrast, Mr. xxxxxxx testified that Investigator Cook never even asked him whether he was travelling alone or with someone (9/3 at 176, 231).

Meanwhile, Detective Centrella interviewed Ms. xxxxxx in her sleeping compartment. She told Centrella that she was travelling with her son, who was also in the sleeping compartment (9/2(am) at 18). Ms. xxxxxx produced a train ticket in the name of "S. Barick" and consented to a search of the compartment (9/2(am) at 17). Detective Centrella found five boxes of snack foods in a grocery bag. Three of the snack food boxes contained crack cocaine (9/2(am) at 19, 33-34). (4) Marijuana was recovered from a pair of child's jeans in Ms. xxxxxx's luggage (9/2(am) at 22). Detective Centrella also seized Ms. xxxxxx's address book from her purse (9/2(am) at 23-24). After her arrest, Ms. xxxxxx said, "Get my husband" and then pointed to her child and said, "Get his father, get his father" (9/2(am) at 19). (5)

Investigator Cook testified that Mr. xxxxxxx was instructed as to his rights pursuant to Miranda (9/2(pm) at 49). Mr. xxxxxxx was provided a written card detailing the Miranda warnings on which he indicated that he would answer questions (9/2(pm) at 49). However, no questions were put to him and he did not volunteer any statements (9/2(pm) at 50). According to Investigator Cook, while Mr. xxxxxxx was being processed at the police station he observed Mr. xxxxxxx point to himself and mouth the words "on me" while looking in the direction of the cell block in which Sherry xxxxxx was held (9/2(pm) at 22, 24). Investigator Cook's testimony was impeached by his omission of this alleged observation in his seven page report (9/2(pm) at 28). Mr. xxxxxxx denied mouthing any words to Ms. xxxxxx at the police station after their arrests (9/3 at 177).

Officer David Stroud testified that the small plastic envelopes found in the box in Mr. xxxxxxx' suitbag are commonly used to package crack cocaine and a heat sealer is commonly used to seal the envelopes (9/3 at 25-26). He opined that drug couriers sometimes travel on public transportation, hide drugs in snack boxes, "split up to make it look like they're not travelling together," use women and children as couriers, purchase their tickets "a little over a half an hour prior to actually leaving the station" and use cash for the purchase (9/3 at 30-32). The prosecutor asked Officer Stroud, "what's going on" when two people are travelling together, they buy tickets to the same destination but split up on the train, one is carrying a large amount of drugs and one is carrying empty ziplock bags? Officer Stroud answered, "you have what is called a two-man mule operation" (9/3 at 32).

There was substantial evidence at trial concerning the relationship between Ms. xxxxxx and Mr. xxxxxxx, and concerning each of their ties to South Carolina. Ms. xxxxxx and Mr. xxxxxxx were engaged to be married (9/2(pm) at 58). They lived together "on and off" (9/3 at 152). Mr. xxxxxxx had recently been employed as a cable installer, but was unemployed at the time of his arrest (9/3 at 154). Ms. xxxxxx was not employed and received public assistance (9/2(pm) at 66).

Both Ms. xxxxxx and Mr. xxxxxxx had ties to South Carolina. Mr. xxxxxxx had family in South Carolina and had lived in South Carolina at various times (9/3 at 190). In December of 1991, Mr. xxxxxxx travelled to South Carolina to help care for his grandfather who had suffered a stroke. Ms. xxxxxx did not go with him (9/3 at 167). During that trip, Mr. xxxxxxx also stayed with Albert Hymie and Sonya xxxxxxx in Columbia, South Carolina (9/3 at 167, 109). While in South Carolina Mr. xxxxxxx wired $300.00 that he had received from his grandfather to Sherry xxxxxx to help her pay for bills (9/3 at 168, 196). Mr. xxxxxxx returned to New York when his mother was hospitalized in New York (9/3 at 169). Before his departure he had promised to help his friends, Albert Hymie and Sonya xxxxxxx, move from South Carolina to New York. When Sherry xxxxxx later said that she wanted to go to South Carolina, and that she would pay for both of them to travel, Mr. xxxxxxx agreed to go with her on January 21, 1992, to help his friends move (9/3 at 170). Mr. xxxxxxx believed that Sherry xxxxxx received the money for their January 21, 1992 trip from "Timothy" (9/3 at 171). (6)

Sherry xxxxxx's mother, Mr. xxxxxxx, and Sonya xxxxxxx all agreed that Sherry xxxxxx made at least one or two trips without Mr. xxxxxxx to South Carolina. (7) As well, Ms. xxxxxxx testified that Sherry xxxxxx lived for a time in South Carolina, and that when Ms. xxxxxx moved back to New York, Ms. xxxxxxx took over her apartment in South Carolina (9/3 at 108). Sherry xxxxxx's address book that was seized upon her arrest contained listings for South Carolina telephone numbers (9/2(am) at 42-43).

Finally, Sonya xxxxxxx, who grew up with both Sherry xxxxxx and Daryn xxxxxxx in Brooklyn, New York, testified that Ms. xxxxxx explained to her how to transport crack cocaine from New York to South Carolina and asked her to participate in the drug trafficking. Ms. xxxxxxx declined to aid Sherry xxxxxx in her drug trafficking business (9/3 at 58, 60). Ms. xxxxxxx also observed that there were times when Sherry xxxxxx would disappear and, upon her reappearance, would have "a lot of money," although she did not work and depended on public assistance (9/3 at 102-103).

ii. The Trial Court's Exclusion Of Evidence Of Sherry xxxxxx's Statements Regarding Her Drug Trafficking To South Carolina.

Defense counsel questioned Sonya xxxxxxx concerning Sherry xxxxxx's drug trafficking in South Carolina:

Q. Did you ever -- did Ms. xxxxxx ever ask you to do anything relative to traveling to South Carolina?



A. Yes.



Q. And what was that?



A. She wanted me to take crack down to South Carolina one time on a trip.



Q. And what did you say to her when she asked you to take crack to South Carolina?



A. Well, she was explaining to me how to do it, but I told her "no."



Q. And when she explained to you how to do it, what did she tell you?



A. Well --

(9/3 at 60; A. at 35). The government objected. Defense counsel proffered that he sought to elicit testimony from Sonya xxxxxxx that Sherry xxxxxx told her "the manner in which she did it -- the traveling by train, using a different name, traveling with children, packaging the drugs in food boxes or snack boxes, where to go, who to deliver it to, how she would be paid; and that she instructed Ms. xxxxxxx not to inform Mr. xxxxxxx of that" (9/3 at 66-67; A. at 41-42) (emphasis added).

Counsel for the defendant argued that the evidence was admissible as a statement against interest under Rule 804(b)(3) of the Federal Rules of Evidence ("FRE") or under the state of mind exception to the rule against hearsay under FRE 903(3) (9/3 at 76, 84-85; A. at 51, 59-60). The government contended that the evidence was inadmissible hearsay without an exception and that, in addition, it was inadmissible as evidence of Ms. xxxxxx's prior bad acts under FRE 404(b). (8) The district court observed, without elaborating, that it had "great difficulty" seeing how the proffered evidence was a statement against interest under FRE 804(b)(3) (9/3 at 86; A. at 61). The court ultimately ruled that the evidence was inadmissible because it was hearsay without an exception and was inadmissible under FRE 404(b), but let stand Sonya xxxxxxx's testimony that Sherry xxxxxx had asked her to take crack to South Carolina and that Ms. xxxxxxx had refused (9/3 at 95-96; A. at 69-70).

iii. The Prosecutor's Comment on Mr. xxxxxxx' Post-Miranda Silence In Rebuttal Closing Argument

In his rebuttal closing argument to the jury, the prosecutor argued,

Finally, in evaluating Mr. xxxxxxx' credibility, when he was interviewed by the police after those items were found, did he tell them anything? Did he say to them --



Defense Counsel: Objection, Your Honor.



* * *



After Mr. xxxxxxx waived his rights after he was arrested, he didn't say anything, ladies and gentlemen.



And isn't that a little bit unusual? Wouldn't you expect somebody who didn't know what this was (indicating exhibit) or the other thing was (indicating exhibit) to give some sort of explanation?

(9/4 at 87, 89; A. at 90-92) (parenthetical in original).

When the prosecutor began this line of argument, defense counsel objected, pointing out that the government's argument infringed on Mr. xxxxxxx' right to remain silent, and that it was unfair because "[t]here is no testimony that they even made any request that he be interviewed; and now he wants to suggest that because he didn't give a statement or didn't explain what was going on after his arrest, that that's some indication of guilt" (9/4 at 87, 89; A. at 90, 92). The prosecutor responded, "I am merely going to make the point that he didn't tell them anything, although he claimed to be ignorant as to what those items were -- he never expressed that to the police" (9/4 at 88; A. at 91). The district court overruled defense counsel's objection and allowed the prosecutor to continue the line of argument (9/4 at 89; A. at 92).

iv. The Trial Court's Instruction On Reasonable Doubt.

As was his practice, Judge Harris instructed the jury that it must convict appellant if it had a "strong belief" in his guilt. Judge Harris defined reasonable doubt for the jury as follows:

As I have said, the government has the burden of proving the defendant guilty beyond a reasonable doubt. A reasonable doubt is a doubt for which you can state a reason, not a doubt based on conjecture.



Proof beyond a reasonable doubt is proof which leaves you with a strong belief in the defendant's guilt.



There are very few thing in this world that we know with absolute certainty. In criminal cases the law does not require proof that overcomes every possibility of doubt or proof that establishes guilt to a mathematical certainty.



The government's burden is to prove beyond a reasonable doubt that the crime charged was committed and that the defendant is the person who committed the crime.



If, based on your consideration of the evidence, you have a strong belief that the defendant is guilty of the crime charged, it is your duty to find him guilty of that crime.



On the other hand, if you have a reasonable doubt regarding the guilt of the defendant, then you must find him not guilty.

(9/4 at 101-102; A. at 93-94) (emphasis added).

Prior to instructing the jury, Judge Harris provided the parties with a draft of his proposed jury instructions, including a reasonable doubt instruction, saying

. . . we've been working on instructions during the trial and they are pretty much worked out.



I'll meet with the lawyers tomorrow morning. I will ask you gentlemen to meet with me -- you have the draft -- you can meet with me in chambers about 25 till 10:00.

(9/3 at 244; A. at 73) (emphasis added). The draft of Judge Harris' reasonable doubt instruction, a copy of which is appended to this brief, read word-for-word like the instruction that Judge Harris actually gave to the jury (A. at 27). (9)

After the off-the-record discussion about instructions, the court invited the parties to place their objections on the record. Having extended the invitation, Judge Harris noted that defense counsel had informed the court during the off-the-record discussion that he objected to the Judge's proposed reasonable doubt instruction and that he proposed, instead, the standard Redbook instruction:

I understand, Mr. Holloway [defense counsel], that you want to express your preference for the Redbook reasonable doubt instruction as compared with the pattern jury instructions of the Judicial Conference of the United States.

(9/4 at 3; A. at 76) (emphasis added). Defense counsel confirmed Judge Harris' understanding that the defense requested the standard Redbook instruction on reasonable doubt:

Your Honor, for the record, we would submit for the court instruction for the court's consideration of the instruction 2.09 in the Redbook. From the formal manual, the Redbook instructions are 2.09.

(9/4 at 4; A. at 77) (emphasis added). After defense counsel noted all of his objections to the court's jury instructions, Judge Harris reiterated his understanding that appellant requested the standard Redbook instruction rather than the court's reasonable doubt instruction:

With regard to your other questions, of course, Mr. Holloway, you and I have been in court together; and you know my position exactly, but the record doesn't reflect it. So taking your last one first, I do believe that the use of the word "vital" is appropriate in the instruction on the defendant's testimony, "vital interest."

With respect to the others, as you know, I, through the passage of years, have begun to use a number of the instructions from the pattern jury instruction book which was prepared by the Judicial Conference Subcommittee.

The ones that I use I consider to be preferable. I still have not seen a reasonable doubt instruction I'm totally satisfied with; but I'm using the one from that book as opposed to the Redbook.

(9/4 at 7-8; A. at 80-81) (emphasis added). Although the prosecutor also was invited to express his views on the record, he stood mute (9/4 at 8; A. at 81).

SUMMARY OF ARGUMENTS

The district court erred by excluding Sonya xxxxxxx's testimony that Sherry xxxxxx had explained her drug trafficking operation and had instructed Ms. xxxxxxx to keep her illegal conduct secret from Mr. xxxxxxx. The statements were admissible as statements against interest under FRE 804(b)(3) and were not barred by FRE 404(b).

The prosecutor argued to the jury that it could infer Mr. xxxxxxx' guilt from his post-Miranda silence in violation of the Due Process Clause and the Supreme Court's holding in Doyle v. Ohio, 426 U.S. 610 (1976). The government could properly elicit testimony about Mr. xxxxxxx' post-arrest silence to rebut the impression of cooperation, but overstepped that limitation by arguing that Mr. xxxxxxx' silence after his arrest was inconsistent with his claim of innocence.

The district court's instruction to the jury that it must find Mr. xxxxxxx guilty if it had a "strong belief" in his guilt deprived Mr. xxxxxxx of due process and deprived him of a jury verdict by the constitutionally required standard of proof beyond a reasonable doubt. This Court's decision in United States v. Loriano, 996 F.2d 424 (D.C. Cir. 1993) (per curiam) governs this case and requires reversal.

ARGUMENT

I. THE DISTRICT COURT'S EXCLUSION OF SHERRY xxxxxx'S STATEMENTS AGAINST INTEREST CONCERNING HER DRUG TRAFFICKING TO SOUTH CAROLINA DEPRIVED MR. xxxxxxx OF DUE PROCESS.

A criminal defendant has a constitutional right to present a defense. Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967). This fundamental principle of due process guarantees a criminal defendant the "right to present evidence, testimonial and otherwise, in his own defense." Bassil v. United States, 517 A.2d 714, 716 (D.C. App. 1986). The trial court erred by excluding Sherry xxxxxx's statements to Sonya xxxxxxx detailing how she trafficked drugs from New York to South Carolina and instructing Ms. xxxxxxx to keep her drug trafficking secret from Mr. xxxxxxx.

This Court reviews the district court's exclusion of the defense evidence for abuse of discretion. United States v. Miller, 895 F.2d 1431 (D.C. Cir.), cert. denied, 498 U.S. 825 (1990). Abuse of discretion occurs when the error goes to the heart of the defense case. Chambers v. Mississippi, 410 U.S. 284 (1973); United States v. Brainard, 690 F.2d 1117, 1125 (4th Cir. 1982) (finding abuse of discretion where statements against interest went to heart of defense that defendants were ignorant of the fraud).

A. Sherry xxxxxx's Statements Were Admissible As Statements Against Interest Under Rule 804(b)(3) Of The Federal Rules Of Evidence.

Sherry xxxxxx's statements to Sonya xxxxxxx were admissible as statements against interest under Rule 804(b)(3) of the Federal Rules of Evidence. A statement against interest offered to exculpate an accused is admissible as an exception to the rule against hearsay where: 1) the declarant is unavailable, 2) the statement was contrary to the declarant's penal interest at the time that the statement was made, and 3) there are corroborating circumstances which indicate the trustworthiness of the statement. United States v. Garcia, 986 F.2d 1135, 1139 (7th Cir. 1993); Federal Rules of Evidence, Rule 804(b)(3). (10) Sherry xxxxxx's statements to Sonya xxxxxxx admitting the details of her drug trafficking activities -- travel to South Carolina, by train, accompanied by a child, using a different name, packaging the drugs in snack food boxes, where to go in South Carolina, who to deliver the drugs to, how to get paid, and, significantly, that her illegal activities should be kept secret from her fiance, Daryn xxxxxxx -- should have been admitted as a statement against interest under Federal Rule of Evidence 804(b)(3).

First, Sherry xxxxxx was unavailable as a witness for Mr. xxxxxxx, having failed to appear for their joint trial. United States v. Lopez, 777 F.2d 543, 554 (10th Cir. 1985) (codefendant who failed to appear for joint trial was unavailable to defendant).

Second, Sherry xxxxxx's statements to Sonya xxxxxxx admitting to trafficking cocaine from New York for sale in South Carolina sufficiently tended to subject her to criminal liability that a reasonable person would not have made the statement unless he or she believed it to be true. Admission that one is involved in drug trafficking certainly is against one's interest. United States v. Mock, 640 F.2d 629 (5th Cir. 1981) (in trial for failure to make tax returns witness permitted to recount statement by witness' husband that he was going to Florida to discuss drug smuggling with the defendant).

While the most critical part of the statement -- that her drug trafficking should be kept secret from Daryn xxxxxxx -- was not expressly against her interest, it was admissible because it illustrated her own culpability and strongly tended to exculpate Mr. xxxxxxx by suggesting that he was ignorant of her drug trafficking scheme. In United States v. Barrett, 539 F.2d 244 (1st Cir. 1976) the court addressed the admissibility of a statement expressing the defendant's ignorance of the offense. There the defendant was charged with the theft and sale of a postage stamp collection, interstate transportation of stolen stamps, and conspiracy. The defendant sought to introduce the testimony of a witness who would have recounted a statement made by an alleged accomplice that there would be some "trouble" over the "stamp theft matter" and that the defendant "wasn't involved." Id. at 249. The trial court excluded the testimony as hearsay on the ground that the relevant part -- that the defendant was not involved -- was not against the declarant's interest. The First Circuit acknowledged that a statement exculpating the defendant was not in itself against the interest of the declarant, since "both could have participated in the crime." Id. at 252. However, the court expressly rejected the argument that in order for the exculpatory remarks to be admissible, the "innocence of the accused must itself be prejudicial to the declarant." Id. at 252. Rather, the court held that under Rule 804(b)(3) the remark exculpating the defendant should be considered as part of the statement against interest. See also United States v. Brainard, 690 F.2d 1117, 1124 (4th Cir. 1982) (although statement concerning defendant's ignorance of the crime does not in itself incriminate the declarant, it shows that the declarant had insider knowledge of the crime), cert. denied, 471 U.S. 1099 (1985); United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978) (same).

Lastly, the requirement that the statement be corroborated by "circumstances clearly indicat[ing] the trustworthiness of the statement," is met here. FRE 804(b)(3). The purpose of the corroboration requirement is to prevent the admission of statements fabricated by the declarant. United States v. Garcia, 986 F.2d 1135, 1141 (7th Cir. 1993). Thus, "the trustworthiness of a statement should be analyzed by evaluating not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he [or she] had to speak truthfully or falsely." United States v. Bailey, 581 F.2d 341, 349 (3rd Cir. 1978).

There was no indication that Sherry xxxxxx had any motive to fabricate the statements. Sherry xxxxxx told her friend about her drug trafficking -- and that Mr. xxxxxxx was uninvolved -- at a time when she had no reason to either falsely minimize or maximize her involvement in the scheme. See United States v. Johnson, 802 F.2d 1459, 1465 (D.C. Cir. 1986) (post-arrest statement against interest which minimizes declarant's role is suspect); United States v. Coachman, 727 F.2d 1293 (D.C. Cir. 1984) (post-arrest statement against interest which does not trivialize declarant's conduct by shifting responsibility to others deemed reliable). There was no apparent reason for Sherry xxxxxx to lie to her friend about Mr. xxxxxxx' ignorance of her illegal drug trafficking, since she had no knowledge that her statements would ever be used on behalf of Mr. xxxxxxx. United States v. Brainard, 690 F.2d 1117, 1125 (4th Cir. 1982) (no apparent reason for declarant to lie about defendants' ignorance of offense since he had no knowledge that his statements would ever be used on behalf of defendants), cert. denied, 471 U.S. 1099 (1985).

Moreover, xxxxxx's statements were corroborated by the government's own evidence, including evidence that xxxxxx travelled by way of train, that she travelled to South Carolina, that she travelled with a child, that she used a different name, and that she hid the drugs in snack food boxes. See United States v. Mock, 640 F.2d 629, 632 (5th Cir. 1981) (statement against interest that accomplice was travelling to Florida to discuss drug smuggling with defendant corroborated by witness' testimony that declarant actually did travel to Florida).

Under these circumstances, the jury should have had the benefit of Ms. xxxxxx's statement in evaluating whether the government met its burden of proving Mr. xxxxxxx' guilt beyond a reasonable doubt. See United States v. Garcia, 986 F.2d 1135, 1141 (7th Cir. 1993) ("the district court must find only that sufficient corroborating circumstances exist and then permit the jury to make the ultimate determination concerning the truth of the statements"); United States v. Brainard, 690 F.2d at 1125 ("the requisite corroborating circumstances need not be sufficient to remove all doubt with respect to the hearsay statement").

B. Evidence of Sherry xxxxxx's Prior Bad Acts Was Admissible Under Rule 404(b) Of The Federal Rules Of Evidence.

Sherry xxxxxx's statement concerning her prior drug trafficking from New York to South Carolina, and her instruction that her drug trafficking be kept secret from Mr. xxxxxxx, were admissible under Rule 404(b) of the Federal Rules of Evidence to show her knowledge, her intent, and her plan to possess with intent to distribute cocaine on January 21, 1992, and to show that Ms. xxxxxx engaged in drug trafficking alone and without Mr. xxxxxxx' knowledge.

Rule 404(b) is a rule of inclusion which allows evidence of a person's prior bad acts unless the evidence is offered solely to prove criminal propensity. United States v. Washington, Slip Op. 92-3237 at 10 (D.C. Cir. January 14, 1994); United States v. Miller, 895 F.2d 1431, 1436 (D.C. Cir.) ("any purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character"), cert. denied, 498 U.S. 825 (1990) (emphasis in original). (11)

Several courts have held that the defendant may introduce evidence of prior bad acts of a third party where that evidence tends to prove a fact other than the third party's character. United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991); United States v. McCourt, 925 F.2d 1229 (9th Cir.), cert. denied, 112 S.Ct. 121 (1991); United States v. Luffred, 911 F.2d 1011 (5th Cir. 1990); United States v. Cohen, 888 F.2d 770 (11th Cir. 1989); United States v. Aboumoussallem, 726 F.2d 906 (2nd Cir. 1984); United States v. McClure, 546 F.2d 670 (5th Cir. 1977). See also 2 D. Louisell & C. Mueller, Federal Evidence 140, at 175 ("while the focus of FRE 404(b) is prior acts by the accused, the language is not expressly limited either to criminal cases or to acts by the accused. Thus, the principle applies in civil cases as well, and to third-party misconduct too (that is, to conduct of persons other than the accused")).

In United States v. Cohen, 888 F.2d 770 (11th Cir. 1989), the defendants were charged with wire fraud, conspiracy, and tax evasion. Id. at 772. The theory of the defense was that a co-conspirator, who pleaded guilty and who testified against the defendants, had engaged in the offense without the defendants' knowledge or participation. Id. at 775. In support of this defense, the defendants sought to introduce evidence that the witness had previously engaged in similar fraudulent conduct. Id. at 772. The Eleventh Circuit held that "[e]vidence that . . . [the witness] had the opportunity and ability to concoct and conduct the fraudulent scheme without the aid or participation of the Cohens was relevant to the issue of their guilt." Id. at 776. Because there was no other practical means available to the defendants of demonstrating this point, and because the evidence was probative of whether the defendants participated in the fraudulent scheme, it was error for the district court to exclude the evidence. Id. at 777.

Here, as in Cohen, the proffered evidence was relevant to prove that Sherry xxxxxx had the ability, the intent, and the plan, to traffick drugs from New York to South Carolina. And, most significantly, it was relevant to prove that Sherry xxxxxx engaged in that conduct without Mr. xxxxxxx' knowledge or participation. In addition, in the face of Ms. xxxxxx' absence from trial and Officer Stroud's speculation that Mr. xxxxxxx was involved in "what is called a two-man mule operation" (9/3 at 32), there was no other practical way for Mr. xxxxxxx to demonstrate that Ms. xxxxxx alone committed the offense and that he was ignorant of her possession of cocaine on January 21, 1992. See also, United States v. Stevens, 935 F.2d 1380, 1405 (3rd Cir. 1991) (evidence of a third party's bad acts is admissible as "reverse 404(b)" evidence if it has a tendency to negate the defendant's guilt and its probative value outweighs its prejudicial impact); United States v. McCourt, 925 F.2d 1229 (9th Cir.) (holding that FRE 404(b) applies to other crimes, wrongs, or acts of third parties), cert. denied, 112 S.Ct. 121 (1991); United States v. Luffred, 911 F.2d 1011 (5th Cir. 1990) (agreeing with Eleventh Circuit that evidence of prior bad acts of another person offered by the defense may be relevant under FRE 404(b)); United States v. McClure, 546 F.2d 670 (5th Cir. 1977) (reversible error to exclude defense evidence that informant had coerced others to sell narcotics to support defendant's contention that he lacked criminal intent because he was similarly coerced by the informant).

The probative value of the evidence regarding Sherry xxxxxx's previous drug trafficking and her intent to keep Mr. xxxxxxx ignorant of her drug trafficking was not substantially outweighed by the danger of unfair prejudice. FRE 403. (12) Unfair prejudice means "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Notes on Fed.Rule Evid. 403. Evidence of a person's prior acts of misconduct generally does not create the risk of undue prejudice. As this Court observed in a case in which the government sought to introduce evidence of the defendant's prior drug sales to prove intent,

[t]he language of this rule tilts, as do the rules as a whole, toward the admission of evidence in close cases. In prior cases, this court has set forth a rule of thumb for applying the prejudice leg of Rule 403. "In determining whether 'the probative value is substantially outweighed by the danger of unfair prejudice' it is a sound rule that the balance should generally be struck in favor of admission when the evidence indicates a close relationship to the event charged."

United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984) (emphasis in original) (citations omitted). See also United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir. 1992) (evidence of defendant's prior drug sale to unidentified person admissible to prove intent, knowledge and plan, and probative value not substantially outweighed by unfair prejudice). Of course, in Moore and Washington the evidence was admitted against a defendant whose liberty was at stake. Here, the risk of unfair prejudice was far less because Sherry xxxxxx was not on trial.

The Second Circuit, in United States v. Aboumoussallem, 726 F.2d 906 (2nd Cir. 1984), addressed the Rule 403 balancing test in the context of the defense evidence of a third party's prior bad acts. Aboumoussallem's defense to the charge of importing heroin and conspiracy to import heroin was that he was unwittingly duped into transporting the heroin by his co-conspirators. In support of his defense, he sought to introduce evidence that five months previous his co-conspirators had duped another person into committing the same offense to show that his co-conspirators had a modus operandi or a common plan to import drugs using innocent dupes. Id. at 911. The district court excluded the evidence under FRE 404(b) and 403. The Court of Appeals held that the exclusion of the evidence under FRE 404(b) was error.

The government in Aboumoussallem argued that because it would not be permitted under FRE 404(b) to introduce evidence that the co-conspirators employed "knowing couriers," the defendant should similarly not be permitted to introduce evidence that the co-conspirators duped couriers. Id. at 911. The Second Circuit explained that FRE 404(b) prohibits the use of a defendant's prior wrongs primarily because of the risk that a jury may "assume his present guilt from his prior misdeed." Id. The Court observed, however, that the "risks of prejudice are normally absent when the defendant offers similar acts evidence of a third party to prove some fact pertinent to the defense." Id. For that reason, the Court held that "the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword." Id. See also, United States v. Cohen, 888 F.2d 770, 776 (11th Cir. 1989) ("when the defendant offers similar acts evidence of a witness to prove a fact pertinent to the defense, the normal risk of prejudice is absent"); United States v. Stevens, 935 F.2d 1380, 1404 (3rd Cir. 1991) (same).

Because the evidence of Sherry xxxxxx's prior drug trafficking from New York to South Carolina and her desire to ensure that Mr. xxxxxxx remain ignorant of her crimes was probative of her intent, knowledge and plan, and probative of whether Mr. xxxxxxx was ignorant of her possession of cocaine on January 21, 1992, and because the probative value of the evidence was not substantially outweighed by a danger of unfair prejudice, the evidence should have been admitted.

C. The Exclusion Of The Evidence Was Not Harmless.

The government cannot demonstrate, beyond a reasonable doubt, that the exclusion of the evidence of Sherry xxxxxx's statements to Sonya xxxxxxx detailing how she trafficked drugs from New York to South Carolina and instructing Ms. xxxxxxx to keep her drug trafficking secret from Mr. xxxxxxx was harmless. Chapman v. California, 386 U.S. 18, 24 (1967).

First, the evidence was critical to the defense. Mr. xxxxxxx contended that he was ignorant of Sherry xxxxxx's possession of cocaine. Thus, evidence that Sherry xxxxxx had previously engaged in the same conduct, that she had done so without the aid of Mr. xxxxxxx, and that she intended to keep her conduct secret from Mr. xxxxxxx was crucial to his defense.

Second, the government's evidence against Mr. xxxxxxx was not strong. The government contended that Mr. xxxxxxx jointly, constructively possessed the cocaine that Sherry xxxxxx actually possessed. The government's evidence in support of its theory rested entirely on inferential, circumstantial evidence and was far from overwhelming. Indeed, much of the inferential "expert" testimony was plausibly contradicted by Mr. xxxxxxx (e.g., evidence that he sought to avoid the appearance of travelling with Sherry xxxxxx), or was explained by Mr. xxxxxxx (e.g., the reasons for the trip and his connections to South Carolina; why he carried Sherry xxxxxx's boxes without questioning her regarding their contents), or was equally consistent with innocence (e.g., reserving separate sleeping cars).

And, finally, the harm of exclusion of the evidence from the jury's consideration was then exacerbated by the government's argument to the jury that Sherry xxxxxx was duped by Mr. xxxxxxx, or at least was less culpable. The prosecutor argued that Mr. xxxxxxx was

in fact using Sherry xxxxxx to help him carry a kilo and a half of crack cocaine from New York City to Columbia, South Carolina.

(9/4 at 23; A. at 82). Carrying this argument even further, the prosecutor told the jury that

[t]his is a case about a woman who loved a man, who loved the man and would do anything he said; and that's what happened in this case.

(9/4 at 48; A. at 84). The prosecutor again suggested that Mr. xxxxxxx rather than Sherry xxxxxx instigated the drug trafficking:

. . . wasn't Mr. xxxxxxx asking her to share his drugs and carry his drugs for him to South Carolina while she had her 10-year-old son with her? Isn't that what happened?

(9/4 at 46; A. at 83). In rebuttal argument the prosecutor told the jury that Mr. xxxxxxx

used her on that day and he's still using her today in saying, "Those are her drugs; it was her alone," and he had nothing to do with it.



Ladies and Gentlemen, he is using her but don't let him use you.



What this case comes down to, ladies and gentlemen, is whether you believe that Sherry xxxxxx, a woman who is not even on trial here today, was the person who masterminded this entire event, whether she herself could have pulled that off by herself.



Now, again, let me refer you to common sense.



Let's look at it first from the perspective of a woman who, again, loved a man so much that, in his own words, she'd do anything for him; a woman that waited for him for five years, goes down to South Carolina; is supposed to marry him and is two to three months pregnant with his child -- is she going to try to set him up? Is she going to try to give him something that could get him in trouble?



Does that make any sense?



Well, let's look at the other side of the coin. Let's say that Sherry xxxxxx, like Ms. xxxxxxx says, is a terrible drug trafficker who does this all the time.



If that's true, ladies and gentlemen, if that's true, why would she give Mr. xxxxxxx the heatsealer and the plastic bags? Does that make sense at all?



If she were the bad person they are trying to say she is, if she was this drug courier making all these trips to South Carolina, why -- why wouldn't she give him the drugs? Why would she keep for herself the one thing that could really get her in trouble? Why?



Does it make any sense at all if she's a drug dealer as they are trying to say she is? Why? Why would you keep this (indicating exhibit) and give up that (indicating exhibit)?

* * *



Mr. xxxxxxx knew that woman and he knew that he could count on her and that is why he used her.

(9/4 at 76-78; A. at 85-87) (emphasis added). Still painting Sherry xxxxxx as an innocent, the prosecutor even implied that her absence from trial further victimized her:

Now, you heard from a few defense witnesses. You heard from Sonya xxxxxxx. She's the person who tried to paint a very black picture of somebody who wasn't in court who could defend herself and who could look Ms. xxxxxxx in the eye.



(9/4 at 80; A. at 89). (13) Mr. xxxxxxx' answer to the government's statement of the critical issue in the case ("What this case comes down to . . . is whether you believe that Sherry xxxxxx, a woman who is not even on trial here today, was the person who masterminded this entire event, whether she herself could have pulled that off by herself") was excluded from trial. If the jury had heard Sherry xxxxxx's own description of her drug trafficking scheme, had heard that she engaged in that trafficking without Mr. xxxxxxx, and had heard that she instructed Sonya xxxxxxx to keep Mr. xxxxxxx ignorant of that drug trafficking, the verdict might well have been different. Certainly, the government cannot show beyond a reasonable doubt that the exclusion of the evidence did not contribute to the verdict. Chapman v. California, 386 U.S. 18 (1967).

II. MR. xxxxxxx WAS DEPRIVED OF DUE PROCESS BY THE PROSECUTOR'S IMPROPER ARGUMENT TO THE JURY THAT IT COULD INFER APPELLANT'S GUILT FROM HIS POST-MIRANDA SILENCE.

The prosecutor argued to the jury that it could infer Mr. xxxxxxx' guilt from his post-Miranda silence in blatant violation of the Due Process Clause and of the Supreme Court's holding in Doyle v. Ohio, 426 U.S. 610 (1976). Mr. xxxxxxx' conviction must be set aside unless the government can prove beyond a reasonable doubt that the error, which was objected to, was harmless. Chapman v. California, 386 U.S. 18, 24 (1967); Brecht v. Abrahamson, ___ U.S. ___, 113 S.Ct. 1710 (1993).

In his rebuttal closing argument to the jury, the prosecutor argued,

Finally, in evaluating Mr. xxxxxxx' credibility, when he was interviewed by the police after those items were found, did he tell them anything? Did he say to them --



* * *



After Mr. xxxxxxx waived his rights after he was arrested, he didn't say anything, ladies and gentlemen.



And isn't that a little bit unusual? Wouldn't you expect somebody who didn't know what this was (indicating exhibit) or the other thing was (indicating exhibit) to give some sort of explanation?

(9/4 at 87, 89; A. at 90, 92) (parenthetical in original).

"Due process is violated whenever the prosecution uses for impeachment purposes a defendant's post-Miranda silence." Brecht v. Abrahamson, 113 S.Ct. 1710, ___ (1993); Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle v. Ohio, 426 U.S. 610 (1976), both Doyle and his accomplice, Wood, were charged with selling marijuana to an undercover narcotics agent. Both were arrested on the scene of the sale and given Miranda warnings. Id. at 612. At trial the defendants testified to an exculpatory version of the transaction. The prosecutor cross-examined them regarding their failure to tell the police this exculpatory version shortly after their arrest. The Supreme Court reversed the convictions, holding that post-Miranda silence may not be used to impeach a testifying defendant. The Court, quoting its opinion in United States v. Hale, 422 U.S. 171, 181-82 (1975), wrote:

it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony . . . .

Doyle, 426 U.S. at 619. The Supreme Court has recently reiterated the importance of the Doyle rule, explaining that the rule "rests on 'the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.'" Brecht v. Abrahamson, 113 S.Ct. 1710, 1716 (1993), quoting Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) (citations omitted). Here, the prosecutor's comments to the jury were unfair and violated the rule of Doyle by suggesting that Mr. xxxxxxx' defense was false since he did not tell it to the police after his arrest.

When a defendant has created an impression of cooperation with the police, the government is permitted to elicit testimony about the defendant's post-arrest silence to rebut the impression of cooperation. United States v. Shue, 766 F.2d 1122 (7th Cir. 1985) (where defendant testified on direct examination that he cooperated with police by providing fingerprints, hair and handwriting samples, and appearing at lineup, government permitted to cross-examine on defendant's post-arrest refusal to answer questions about the offense), cert. denied, 484 U.S. 956 (1987); United States v. Conlin, 551 F.2d 534 (2nd Cir.) (where defense counsel claimed that defendant made exculpatory statements at time of arrest, prosecution could rebut defense version of events), cert. denied, 434 U.S. 831 (1977); United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975) (after defense counsel elicited testimony that defendant "cooperated fully" with police, prosecution could rebut impression of full cooperation with defendant's post-arrest silence). See also United States v. Butler, 924 F.2d 1124 (D.C. Cir.) (where defendant on direct examination claimed that, following his arrest, he had been deprived of an opportunity to tell his story to the police, the government was permitted to discredit the defendant's claim), cert. denied, 112 S.Ct. 205 (1991).

Here, defense counsel created the impression of cooperation, thereby entitling the prosecutor to elicit testimony that Mr. xxxxxxx was silent after his arrest. In his opening statement to the jury, defense counsel explained that the jurors would learn "that when Mr. xxxxxxx was interviewed, he gave information and agreed to cooperate, agreed to answer whatever questions the police desired to ask him" (9/2(pm) at 22). In addition, defense counsel elicited testimony from Investigator Cook concerning Mr. xxxxxxx' demeanor at the time of the search:



Q. Did Mr. xxxxxxx -- did Mr. xxxxxxx resist your investigation in any way?



A. Not that I recall.



Q. And did he comply with whatever instructions or requests that were made?



A. He consented to the requests that I made.

(9/2(pm) at 48; A. at 30).

Q. Was Mr. xxxxxxx read his rights?



A. When?



Q. After his arrest when he was taken to the station.



A. Yes, he was.



Q. And I believe he was read those rights from a card?



A. That's correct.



Q. And he was asked if he understood those rights?



A. Yes.



Q. And he was asked if he was willing to answer questions. Do you recall that?



A. Yes.



Q. And he answered that he was?



A. I believe so, yes.



Q. And he also waived his right to have an attorney present, didn't he?



A. I believe he did.

(9/2(pm) at 49; A. at 31). (14)

In response, the prosecutor asked Investigator Cook,



Q. Investigator Cook, after Mr. xxxxxxx waived his rights at the station, did he then proceed to make any statements?



A. I'm not aware of any statements.

(9/2(pm) at 50; A. at 32). Although defense counsel did not question Mr. xxxxxxx concerning any statements made to the police, or the absence of such statements, the prosecutor asked Mr. xxxxxxx during cross-examination:

Q. When the police found those items, you didn't say anything about it, did you?



A. No, I didn't.



Q. You didn't try to explain what you were doing with that, did you?



A. No, I didn't.

(9/3 at 235; A. at 72).

Even where the government is entitled to rebut an impression of cooperation with evidence of post-arrest silence, however, the government may not use post-arrest silence as evidence of guilt by arguing that the defendant's silence was inconsistent with his claim of innocence. Such use of a defendant's silence strikes at the heart of the Due Process Clause, and is precisely what the Supreme Court prohibited in Doyle.

In United States v. Shue, 766 F.2d 1122 (7th Cir. 1985), cert. denied, 484 U.S. 956 (1987), the defendant testified on direct examination that following his arrest he provided the police with fingerprints, hair and handwriting samples, and appeared at a lineup. Because that testimony gave the impression of full cooperation with the police, the government was entitled to elicit testimony about the defendant's post-arrest silence to rebut the impression of full cooperation: "A defendant should not be permitted to twist his Miranda protection to shield lies or false impressions from government attack." Id. at 1129. However, the prosecutor in Shue, entitled to walk through the "open door," went too far by then arguing that the defendant's silence was inconsistent with his claim of innocence ("He refused to talk to the FBI, refused. And no one ever heard of this preposterous, incredible story of a frame until he hit the witness stand"). Id. at 1128-29. The Court of Appeals for the Seventh Circuit reversed the conviction, holding that where the defendant opens the door to testimony concerning post-arrest silence by suggesting cooperation with the police, the government's use of that silence must be carefully limited to impeaching the defendant's credibility regarding his cooperation or lack thereof. The use of post-arrest silence to suggest guilt "violations our notion of fundamental fairness." Id. at 1131.

The Fifth Circuit reached the same conclusion in United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975). There defense counsel elicited testimony that the defendant "cooperated fully" with the FBI and United States Attorney's Office. The prosecutor was, therefore, justified in eliciting evidence that the defendant did not make statements to the police following his arrest. However, the government's use of the evidence in closing argument, -- "[the defendant] wouldn't say a thing. . . . He wouldn't even tell them where he lived. They had to drag it out of him. How, why is that? It's because he knew what was going on, ladies and gentlemen" -- improperly "utilize[d] his silence as direct evidence that he knew that the vehicles which he received were stolen." Id. at 1383. See also Morgan v. Hall, 569 F.2d 1161 (1st Cir.), cert. denied, 437 U.S. 910 (1978) (although defendant first raised fact of post-arrest silence, prosecutor's use of silence to undermine defendant's exculpatory story was reversible error).

In the instant case, the prosecutor used Mr. xxxxxxx' silence to defeat Mr. xxxxxxx' exculpatory testimony by telling the jury, in rebuttal argument, that if Mr. xxxxxxx had truly been ignorant of the contraband he would have said so to the police after his arrest: "[I]sn't that a little bit unusual? Wouldn't you expect somebody who didn't know what this was (indicating exhibit) or the other thing was (indicating exhibit) to give some sort of explanation?" (9/4 at 89; A. at 92) (parenthetical in original). (15)

Thus, the prosecutor used an "open door" to obliterate Mr. xxxxxxx' constitutional protections. Indeed, the prosecutor was forthright about his intention to argue to the jury that Mr. xxxxxxx' post-arrest silence defeated his claim of innocence. Upon defense counsel's objection to the argument, the prosecutor informed the district court that, "I am merely going to make the point that he didn't tell them anything, although he claimed to be ignorant as to what those items were -- he never expressed that to the police." (9/4 at 88; A. at 91).

The Doyle violation was not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). The Supreme Court recognized the inherent prejudice in the government's improper use of post-arrest silence in United States v. Hale, 422 U.S. 171 (1975):

Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.

As we have stated before: "When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out." We now conclude that the respondent's silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.

Id. at 180 (emphasis added) (citations omitted).

The implication that Mr. xxxxxxx would not have remained silent had he been innocent was clearly developed in the government's line of argument that ". . . you [would] expect somebody who didn't know what . . . [the heat sealer and the ziplocks] was to give some sort of explanation" (9/4 at 87-89). Thus, the "significant potential for prejudice" was realized.

This is particularly so because the evidence supporting the government's theory that Mr. xxxxxxx jointly, constructively possessed the cocaine found in Sherry xxxxxx's luggage rested entirely on inferential, circumstantial evidence and was far from overwhelming. See supra, at 29. Finally, the improper instruction was particularly harmful because Mr. xxxxxxx' defense rested so strongly on his credibility. United States v. Canterbury, 985 F.2d 487 (10th Cir. 1993) (where success of defense hinged almost entirely on defendant's credibility, Doyle violation not harmless beyond a reasonable doubt).

Under these circumstances, the evidence against Mr. xxxxxxx was not so overwhelming that this Court can say that the violation was "so unimportant and insignificant that [it] may, consistent with the Federal Constitution, be deemed harmless . . . ." Chapman v. California, 386 U.S. 18, 22 (1967). See Bass v. Nix, 909 F.2d 297, 305 (8th Cir. 1990) (Doyle violation not harmless were prosecutor made several remarks, trial court did not mitigate the damage with instructions, the defendant's exculpatory story was not "transparently frivolous" and the government's evidence was not overwhelming); United States v. Baker, 999 F.2d 412 (9th Cir. 1993) (violation not harmless where government implied that appellants would not have remained silent if they were innocent by arguing "You know how we all act when we're accused of something? There's nothing here."); United States v. Shue, 766 F.2d at 1133 (evidence of guilt based on the testimony of an immunized accomplice and circumstantial evidence "not so overwhelming as to convince us that the government's comments could not have played a role in the jury's guilty verdicts"); United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir. 1978) ("the circumstances under which a Doyle error will not occasion a reversal are few and discrete").



III. THE DISTRICT COURT'S INSTRUCTION TO THE JURY THAT IT MUST FIND MR. xxxxxxx GUILTY IF IT HAD A "STRONG BELIEF" IN HIS GUILT DEPRIVED MR. xxxxxxx OF DUE PROCESS AND DEPRIVED HIM OF A JURY VERDICT BY THE CONSTITUTIONALLY REQUIRED STANDARD OF PROOF BEYOND A REASONABLE DOUBT.

Over defense objection (9/4 at 3, 4, 8; A. at 76, 77, 81), Judge Harris defined reasonable doubt in his instructions to the jury as follows:

As I have said, the government has the burden of proving the defendant guilty beyond a reasonable doubt. A reasonable doubt is a doubt for which you can state a reason, not a doubt based on conjecture.



Proof beyond a reasonable doubt is proof which leaves you with a strong belief in the defendant's guilt.



There are very few things in this world that we know with absolute certainty. In criminal cases the law does not require proof that overcomes every possibility of doubt or proof that establishes guilt to a mathematical certainty.



The government's burden is to prove beyond a reasonable doubt that the crime charged was committed and that the defendant is the person who committed the crime.



If, based on your consideration of the evidence, you have a strong belief that the defendant is guilty of the crime charged, it is your duty to find him guilty of that crime.

On the other hand, if you have a reasonable doubt regarding the guilt of the defendant, then you must find him not guilty.

(9/4 at 101-102; A. at 93-94) (emphasis added).

This Court condemned this very same instruction given by the very same district court in United States v. Merlos, 984 F.2d 1239 (D.C. Cir. 1993) ("Merlos I"), because it erroneously equated certainty "beyond a reasonable doubt" with "strong belief." Id. at 1240. However, the Court held that the error was harmless. In light of the Supreme Court's decision in Sullivan v. Louisiana, ___ U.S. ___, 113 S.Ct. 2078 (1993), holding that harmless error analysis may not be applied where an unconstitutional reasonable doubt instruction has been given, this Court granted rehearing and reversed the conviction in United States v. Loriano, 996 F.2d 424 (D.C. Cir. 1993) (per curiam), originally the companion case of Merlos I. In Merlos, however, the Court declined to reverse that conviction because Merlos' trial counsel, unlike Loriano's counsel, had not objected to the judge's erroneous reasonable doubt instruction, and this Court deemed those instructions not to have constituted "plain error." United States v. Merlos, 8 F.3d 48, 49-50 (D.C. Cir. 1993) ("Merlos II"). (16) In this case, objections such as those in Loriano were made, and the judge gave virtually the same response. Therefore, Loriano governs this case, and reversal is required here, as well.

In Loriano, when defense counsel was informed of the reasonable doubt instruction that Judge Harris planned to give, counsel "properly objected and requested the use of the so-called 'Redbook' instructions on reasonable doubt [citation omitted]." Merlos I, 984 F.2d at 1241. So too here. After Judge Harris informed Mr. xxxxxxx' counsel -- by way of a draft copy and off-the-record discussions -- of the reasonable doubt instruction that he intended to give the jury, counsel objected and requested the Redbook jury instruction (9/4 at 3-4, 7-8; A. at 76-77, 80-81). (17) Indeed, based on the off-the-record discussion, Judge Harris was aware of defense counsel's objection to the instruction and his request for the Redbook instruction even before counsel spoke on-the-record. It was the judge himself who first raised the issue by saying, "I understand . . . that you want to express your preference for the Redbook reasonable doubt instruction as compared with the pattern jury instructions of the Judicial Conference of the United States." (9/4 at 3; A. at 76).

It is now indisputable that a jury instruction defining proof beyond a reasonable doubt as that which merely engenders "strong belief" in a defendant's guilt not only understates the quantum of proof required by the due process clause of the Fifth Amendment, but in doing so breaches the Sixth Amendment's guarantee of a jury verdict resulting from correct instructions as to the reasonable doubt standard. Sullivan v. Louisiana, 113 S.Ct. at 2081-2083. Because Judge Harris' erroneous instruction deprived Mr. xxxxxxx of due process and deprived him of a verdict by the constitutionally guaranteed standard of proof, his conviction must be reversed and the case remanded for a new trial. Id.; United States v. Loriano, 996 F.2d 424 (D.C. Cir. 1993).

CONCLUSION

For the reasons stated above the conviction should be reversed and a new trial should be ordered.

Respectfully submitted,



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





CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant, Daryn xxxxxxx, does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.



_________________________________

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, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 21st day of January, 1994.





____________________________________

Sandra G. Roland





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. 92-3277

_________________________________________________________________





APPENDIX FOR DEFENDANT-APPELLANT

DARYN xxxxxxx



_________________________________________________________________

UNITED STATES OF AMERICA, Appellee,



v.



DARYN xxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





_________________________________________________________________





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. 92-73



APPENDIX

TABLE OF CONTENTS





INDICTMENT 1



DOCKETING STATEMENT 2



JUDGMENT IN A CRIMINAL CASE 9



UNOPPOSED MOTION TO SUPPLEMENT RECORD ON APPEAL 13



DRAFT COPY OF DISTRICT COURT'S PROPOSED REASONABLE DOUBT

INSTRUCTION 27



EXCERPTS OF TRANSCRIPT OF PROCEEDINGS HELD ON THE AFTERNOON OF

SEPTEMBER 2, 1992 28



EXCERPTS OF TRANSCRIPT OF PROCEEDINGS HELD ON SEPTEMBER 3, 1992

33



EXCERPTS OF TRANSCRIPT OF PROCEEDINGS HELD ON SEPTEMBER 4, 1992

74

1. "9/1" refers to the transcript of the trial proceedings held on September 1, 1992.

"9/2(am)" refers to the transcript of the trial proceedings held on the morning of September 2, 1992.

"9/2(pm)" refers to the transcript of the trial proceedings held on the afternoon of September 2, 1992.

"9/3" refers to the transcript of the trial proceedings held on September 3, 1992.

"9/4" refers to the transcript of the trial proceedings held on September 4, 1992.

2. The defense stipulated that Government's Exhibit 3, a piece of paper, was recovered from Mr. xxxxxxx at the time of his arrest (9/1 at 16). On the paper was written Mr. xxxxxxx' address, and the train reservation and price information. Mr. xxxxxxx identified some of the above handwriting as his own, and some as the handwriting of Sherry xxxxxx (9/3 at 218-219).



The defense also stipulated that Government's Exhibit 4, another piece of paper, was recovered from Sherry xxxxxx at the time of her arrest (9/1 at 16). This piece of paper had been ripped from the first piece of paper (Government's Exhibit 3). Written on this piece of paper was train reservation information and a South Carolina address. Mr. xxxxxxx identified the handwriting as his own (9/3 at 219-221).



The government's witnesses, Larry Stewart, a Senior Document Examiner for the United States Secret Service, and Thomas Alexander, a questioned documents examiner employed by the United States Secret Service, testified consistently with Mr. xxxxxxx concerning the two pieces of paper and the writing on the paper (9/1 at 48, 52-53; 9/2(am) at 5, 12).

3. Mr. xxxxxxx' testimony regarding the train reservations and purchase of the tickets was consistent with the testimony of Edna Smith, an Amtrack Railroad Company employee.



Reservations for a sleeping compartment with two beds were made for S. xxxxxx and one child were made on January 19, 1992 at 12:52 a.m. (9/1 at 25). Eight minutes later a reservation was made for a compartment with one bed for D. xxxxxxx (9/1 at 25, 28).



S. xxxxxx's tickets were purchased with cash at 9:12 a.m. on the day of the scheduled departure (9/1 at 26). D. xxxxxxx' ticket was purchased with cash two minutes later from the same ticketing agent (9/1 at 28).

4. Mr. xxxxxxx' fingerprints did not match the fingerprint found on one of the snack food boxes. Officer Steven Griffin, a fingerprint analyst, testified that a partial print was lifted from the evidence and that it did not match Mr. xxxxxxx' prints (9/2(pm) at 130, 135-136). He was not asked whether the print was compared against Ms. xxxxxx's known prints.

5. Sherry xxxxxx's references to Mr. xxxxxxx as her husband and the father of her child were false.

6. Sonya xxxxxxx corroborated Mr. xxxxxxx' testimony concerning his December, 1991, stay in South Carolina, the reason that he returned to South Carolina in January, 1992, and Sherry xxxxxx's offer to pay for Mr. xxxxxxx to return to South Carolina in January, 1992 (9/3 at 111).

7. Sherry xxxxxx's mother, Delores xxxxxx, knew of two trips that Sherry xxxxxx made to South Carolina (9/2(pm) at 66). She also knew that her daughter made at least one of the trips without Mr. xxxxxxx (9/2(pm) at 79, 82).

Sonya xxxxxxx was aware of two trips that Sherry xxxxxx made to South Carolina for the stated purpose of visiting her "uncle" Timmy (9/3 at 59). According to Ms. xxxxxxx, Ms. xxxxxx made both of those trips without Mr. xxxxxxx (9/3 at 110).

Mr. xxxxxxx testified that Ms. xxxxxx made two trips to South Carolina -- one in the summer of 1991, and another in October, 1991 -- with her "uncle" Timothy (9/3 at 164-165). Mr. xxxxxxx was not with her.

8. The government offered to withdraw its objection to the testimony that Sherry xxxxxx instructed Ms. xxxxxxx not to inform Mr. xxxxxxx about her drug trafficking activities, but only if Mr. xxxxxxx were willing to waive, for purposes of appeal, his objection to the exclusion of Ms. xxxxxxx's testimony concerning Sherry xxxxxx's admissions about her drug trafficking to South Carolina (9/3 at 89; A. at 64-68). Counsel for Mr. xxxxxxx refused to enter into an agreement which would waive Mr. xxxxxxx' appellate rights (9/3 at 90-94; A. at 64-68).

9. Appellant filed, on January 14, 1994, an Unopposed Motion To Supplement The Record On Appeal with the district court requesting that the record be supplemented with the draft copy of Judge Harris' reasonable doubt instruction. That motion, a copy of which is appended to this brief, is pending before the district court (A. at 13).

10. Rule 804(b)(3) of the Federal Rules of Evidence provides, in pertinent part:

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

11. Rule 404(b) of the Federal Rules of Evidence provides, in pertinent part:



Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

12. Rule 403 of the Federal Rules of Evidence provides, in pertinent part:



Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .

13. The government moved to preclude the defense from introducing evidence that Sherry xxxxxx was a fugitive from justice, arguing that Mr. xxxxxxx was trying to make an argument that because Ms. xxxxxx is not here and has fled because she's guilty and he says that his client is here, that means that his client is here because he wants to prove his innocence. He's trying to draw an inference from her absence and his presence. That inference is simply not one that should be drawn.

(9/3 at 8). The district court granted the government's motion denied the defense request for an instruction on Ms. xxxxxx's flight from prosecution (9/4 at 4-5; A. at 77-78).

14. Although Mr. xxxxxxx signed a card indicating that he would answer questions, the rule of Doyle is applicable because Mr. xxxxxxx, in fact, remained silent and must be considered to have done so in reliance on the implied assurances of the Miranda warnings. A defendant waives his right to remain silent, for purposes of the Fifth Amendment, when he actually discusses the offense or his role in the offense. United States v. Crowder, 719 F.2d 166, 172 (6th Cir. 1983), cert. denied, 466 U.S. 974 (1984). See also United States v. Canterbury, 985 F.2d 483, 486 (10th Cir.) (when defendant is "partially silent" it does not preclude him from claiming a violation of due process under Doyle), reh'g denied (1993).

15. Defense counsel had not referred to Mr. xxxxxxx' cooperation or lack thereof during closing argument.

16. Appellant respectfully submits that Merlos II was wrongly decided. Sullivan v. Louisiana stands for the proposition that where a jury is misinstructed as to the standard of proof, there is no jury verdict within the meaning of the Sixth Amendment. The error is a "structural defect" which vitiates the entire proceeding. Sullivan, supra, 113 S.Ct. at 2082-2083. Thus, there is no verdict which an appellate court can rightfully affirm. And, if that appellate court substitutes its own view that the evidence was sufficient to convict, the wrong factfinder has passed judgment on the accused, in violation of the Constitution.

17. Criminal Jury Instructions: District of Columbia (3rd ed. 1978), Instruction 2.09.