UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 93-3161

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxx xxxxxxx,Defendant-Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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BRIEF FOR APPELLANT

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JURISDICTION

The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A notice of appeal from the final judgment of the district court having been filed on August 24, 1993, this Court has jurisdiction over this appeal under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I.Whether Mr. xxxxxxx was deprived of a fair trial when the prosecutor referred in her opening statement to facts never put in evidence, including an incriminating statement by Mr. xxxxxxx himself, and asserted some of those same facts in her closing argument.

II. Whether the government's use of a highly prejudicial nonverbal statement by Mr. xxxxxxx that had never been disclosed to the defense under Rule 16, Fed. R. Crim. P., requires a remand to the district court to determine whether the statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), where the statement was the product of custodial interrogation but, due to the discovery violation, defense counsel had not been able to move for its suppression pre-trial.

III. Whether the district court erred in refusing to delay sentencing until a DEA chemist complied with Mr. xxxxxxx's subpoena and appeared with a scale to weigh the drugs that were the subject of his conviction where a difference in weight of as little as 4.5 grams would have reduced Mr. xxxxxxx's mandatory minimum sentence by five years.

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 April 22, 1993, a federal grand jury sitting in the District of Columbia returned a two-count indictment charging Mr. xxxxxxx xxxxxxx and Mr. Michael xxxxxxx with possession with intent to distribute of over 5 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) (Count One) and charging Mr. xxxxxxx alone with possession with intent to distribute of a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). A. 14-15. On June 1, 1993, after chemical testing revealed that the substance that was the subject of Count Two in fact contained cocaine base (crack), not cocaine, the government filed a superseding indictment replacing Count Two with a charge of possession with intent to distribute over 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), a crime carrying a mandatory minimum prison term of ten years (A. 16-17).

On July 28, 1993, at Mr. xxxxxxx's direction, defense counsel moved to withdraw from the case, citing Mr. xxxxxxx's dissatisfaction with her representation (A. 21-22). Judge Harris denied the motion on July 30, 1993 (A. 24). A jury trial commenced before the Honorable H. Dale Cook on August 3, 1993. Before voir dire began, defense counsel suggested that the court inquire of Mr. xxxxxxx personally, outside of the government's presence, as to his complaints about counsel's representation (8/3 Tr. 3-4). During the court's colloquy with Mr. xxxxxxx, defense counsel reviewed a letter Mr. xxxxxxx had written to Judge Harris on July 29, 1993 (filed August 6, 1993) (A. 25-26) in which Mr. xxxxxxx asked the court to dismiss his counsel and stated "I do have every intention of filing an ineffective assistance of counsel claim against her with the District Bar Association shortly." Citing that representation and the conflict of interest it created between herself and Mr. xxxxxxx, counsel renewed her motion to withdraw (8/3 Tr. 7-8), stating in addition that the attorney-client relationship "has deteriorated to the extent that we are not really capable of holding a conversation with each other" (8/3 Tr. 12). The court denied the motion to withdraw (8/3 Tr. 13) and the trial began.

The court granted Mr. xxxxxxx's motion for judgment of acquittal at the close of the government's case (8/5 Tr. 51) and the trial proceeded against Mr. xxxxxxx alone. On August 5, 1993, the jury returned a verdict of not guilty on Count One and guilty on Count Two (8/5 Tr. 130). On October 28, 1993, Mr. xxxxxxx was sentenced to what the court believed was the mandatory minimum sentence of 120 months of imprisonment and five years of supervised release (A. 36-39; S. Tr. 30).

B. Statement of Facts

On March 24, 1993, Investigator Thomas Cook of the Amtrak police reviewed computerized reservation information for passengers on a train from New York City to Washington, D.C. Based on that review, Investigator Cook became suspicious that the two passengers in sleeper compartment 8110-A were transporting illegal drugs to Hamlet, North Carolina. When the train arrived at Union Station, Investigator Cook, along with Metropolitan Police Department officers Maria Pena and Barbara Lyles, approached the suspect sleeper compartment and obtained permission from Mr. xxxxxxx and Mr. xxxxxxx to search the compartment. In the bathroom, Investigator Cook found a bag of crack cocaine in the receptacle that holds the toilet paper roll (Count One). Investigator Cook also claimed to have found a bag of crack cocaine in Mr. xxxxxxx's sock during the search following his arrest (Count Two).

1. The Prosecutor's Opening Statement

Defense counsel objected moments into the prosecutor's opening statement when it appeared the prosecutor was about to discuss the factors that had led Investigator Cook to become suspicious of Mr. xxxxxxx's sleeper car (8/3 Tr. 74). When the prosecutor proffered at the bench that she did intend to introduce evidence concerning why Investigator Cook selected Mr. xxxxxxx's car, the court instructed her: "No, stay away from that" (8/3 Tr. 76). The court ruled that the prosecutor could say only that the reservation printout showed that the occupants had purchased tickets in New York and were on their way to Hamlet, North Carolina (8/3 Tr. 76-78). The court further ruled that the government should not discuss the "probable cause" for approaching Mr. xxxxxxx's compartment, relying on defense counsel's representation that Mr. xxxxxxx did not intend to suggest that the approach of the compartment was improper (8/3 Tr. 78).

Nevertheless, the prosecutor proceeded, in the face of these rulings, to outline not only that the reservation was for a one-way trip (which did come into evidence because Mr. xxxxxxx told Investigator Cook that fact during their interview), but the following additional hearsay reservation information that was never allowed into evidence (8/3 Tr. 79):

-- The sleeper car cost an additional $163.

-- The reservation was made the day before departure.

-- The defendants paid for their ticket in cash.

-- The defendants purchased their ticket just moments before the train was scheduled to depart from Penn Station.

Another fact asserted by the prosecutor for which no evidence was ever produced was that the officer had called the reservation call-back number and had gotten an answering machine message that began, "Hello, this is Richard" -- a name that did not match the name on the reservation (8/3 Tr. 79-80).

Mr. xxxxxxx's objection to the prosecutor's further statement that "[d]uring the time that they were being processed, the police learned that both of these men are unemployed --" was overruled (8/3 Tr. 83). Ultimately, however, the court precluded the government from eliciting booking information, such as employment status, because the defense had not been given notice under Rule 16, Fed. R. Crim. P., that the government intended to introduce the information on the police booking forms as statements of the defendants (8/4 Tr. 212-219).

Finally, the prosecutor told the jury (incorrectly) that they would hear evidence of the following statements by Mr. xxxxxxx (8/3 Tr. 83):

And during the time that they were being processed, Mr. xxxxxxx asked Mr. xxxxxxx, "Why do you think they picked us?" To which Mr. xxxxxxx responded, "They must have called." Then Mr. xxxxxxx said to Mr. xxxxxxx, "They'll keep the money because it's drug related," referring the $300 [seized from Mr. xxxxxxx]."

At the conclusion of the prosecutor's opening statement, counsel for Mr. xxxxxxx moved for a mistrial, in part on the ground that the prosecutor had violated the court's ruling concerning what reservation information she was permitted to discuss, citing specifically the phone call to the reservation call-back number (8/3 Tr. 85-86). That motion was denied (8/3 Tr. 86).

The next morning, before the first witness was called, Mr. xxxxxxx's counsel renewed and expanded on her objections to the reservation information relied upon by Investigator Cook (8/4 Tr. 5-6). The court held that its ruling would stand (8/4 Tr. 6).

2. The Evidence

Investigator Cook testified that he uses the Amtrak reservation system to attempt to identify persons who might be transporting contraband on Amtrak trains through Washington D.C. (8/4 Tr. 10). He explained that he looks for "unusual characteristics" such as one-way or quick round-trip travel, ticket payments in cash, travelers who pick up their ticket at the last minute, travelers who make their reservation at the last minute or at an unusual hour, and forms of travel that are particularly expensive, such as by sleeper car (8/4 Tr. 12-14).

The prosecutor next had Investigator Cook examine the reservation computer printout for sleeper car 8110-A (Government's Exhibit 1) and describe the type of information it contains (8/4 Tr. 17-18). When the prosecutor then attempted to admit into evidence an exhibit (Government's Exhibit 2) containing the actual information contained on the reservation printout (save for the officer's handwritten note concerning his phone call to "Richard's" answering machine), the defendants objected to the exhibit on hearsay grounds (8/4 Tr. 18-19). After some discussion as to whether the exhibit was hearsay, and whether it might qualify under the business records exception (8/4 Tr. 19-21), the court sustained the objections (8/4 Tr. 22):

I am going to sustain the objections to anything further. I think you have a right to show the basic background and you have done that. I think you need to go to whatever happened.

Before leaving the bench, Mr. xxxxxxx's counsel raised the issue of the admissiblity of Government's Exhibit 1 (the reservation printout itself), at which point the prosecutor acknowledged (8/4 Tr. 22): "I think the objection would be the same and I understand the ruling would be the same, Your Honor."

The prosecutor nevertheless proceeded to ask Investigator Cook to recount particular items of information from the reservation (8/4 Tr. 24-25). Mr. xxxxxxx's counsel objected to the questions as an attempted "run-around of the Court's ruling, eliciting contents" (8/4 Tr. 25). The court ruled that in order to elicit the reservation information, the government would have to offer the printout itself as a business record (8/4 Tr. 26). However, after voir dire of Investigator Cook established that he could not lay a proper foundation for admission of the document under the business records exception (8/4 Tr. 27-32), the court sustained the objection to the reservation printout (8/4 Tr. 32). After one final unsuccessful attempt to elicit information from the reservation (the additional cost of the sleeper compartment), the prosecutor agreed to move on (8/4 Tr. 33). No other reservation information was put into evidence.

Investigators Cook and Pena and Detective Lyles each testified as to the events surrounding the arrest. Investigator Cook took a drug-sniffing dog with him to the train but the dog did not alert to Mr. xxxxxxx's sleeper (8/4 Tr. 35, 163). After stowing the dog in another sleeper compartment, Investigator Cook knocked on the door and interviewed Mr. xxxxxxx and Mr. xxxxxxx, who were in their bunks wearing undershorts and T-shirts, while the other officers stood on each side of Cook out in the hall (id. at 36, 40, 50, 164, 198). Mr. xxxxxxx looked for but was unable to locate his ticket (id. at 40-41). Neither man had any identification (id. at 42). Mr. xxxxxxx told Investigator Cook that they were going to Hamlet, North Carolina, where they were going to stay a few days before driving back to New York (id. at 44-46). Mr. xxxxxxx indicated that he had been employed as a laborer at the World Trade Center, but did not indicate whether he still worked there (id. at 46-47, 166). Both men denied carrying any illegal narcotics (id. at 48). Mr. xxxxxxx told Cook that they had already been searched in New York by "some agent" (id. at 48-49).

Several times during the interview, Mr. xxxxxxx interrupted Cook to ask, "Do you want to search? Go ahead and search" (id. at 47, 165-166). When Cook finally accepted that offer he suggested that the two men put on some pants before stepping out in the hall (id. at 49). Mr. xxxxxxx asked if he could put on his shoes (id.). After Cook assented, Mr. xxxxxxx sat down and put on his socks and his shoes (id. at 49-50). Cook, who was watching Mr. xxxxxxx from three and a half feet away at the time (id. at 79-80, 116), noticed nothing unusual as Mr. xxxxxxx put on his shoes and socks (id. at 82, 119-120).

Investigator Cook discovered the bag of off-white chunky rock-like material in the bathroom after noticing that the toilet paper roll was sitting up unusually high in its cup receptacle (id. at 51, 84-85). At Cook's signal, Officers Pena and Lyles placed Mr. xxxxxxx and Mr. Cook under arrest (id. at 65, 167, 201). Cook retrieved his dog and followed the others off the train to the Amtrak Police holding area (id. at 65, 185-187).

Once there, Cook asked Mr. xxxxxxx, who was handcuffed to a chair (id. at 87), to remove his shoes and socks, which Mr. xxxxxxx did, using his one free hand (id. at 66, 89). In the toe of the sock that had come off of Mr. xxxxxxx's right foot, Cook found a plastic bag containing a "white powder substance" that was lighter in color and finer in texture than what he had found in the bathroom (id. at 66, 92, 96). Investigator Pena saw Cook pick up the sock and heard him say something ("I don't know what he said. Later on I guess he told Barbara Lyles"), but did not see him take anything out of the sock (id. at 168-169, 185, 192-193). Detective Lyles testified on direct examination that "[a]t some point [Cook] turned around and he gave me a plastic bag with a sock" (id. at 210), and that Cook said the bag had come from Mr. xxxxxxx's sock (id. at 211). On cross-examination, Lyles changed her story, claiming that Cook handed her only the bag, not the sock, and claiming for the first time that she actually saw Cook take the bag out of the sock (id. at 221).

Cook testified over objection that when he took the bag out of the sock, "I looked at it and then I looked at the defendant and I said, 'xxxxxxx, I am ashamed of you'" (id. at 66). In response, "[Mr. xxxxxxx] just kind of put his head down" (id. at 67). Mr. xxxxxxx's counsel moved for a mistrial on the grounds that the government had never disclosed Mr. xxxxxxx's nonverbal statement -- the equivalent of stating that he indeed felt "ashamed" -- to the defense under Rule 16, Fed. R. Crim. P., and that "I would have addressed a motion to it had I been made aware of it earlier" (id. at 68-69). The mistrial motion was denied, as was the alternative request that the testimony be stricken from the record (id. at 69).

During cross-examination of Investigator Cook, the witness poured soap powder into a plastic bag to approximate the size of the bag found in Mr. xxxxxxx's sock (id. at 96-98, 101). Counsel for Mr. xxxxxxx then conducted a demonstration in which he unsuccessfully attempted to put on his shoe with the bag inside his sock (id. at 117-120). Although the prosecutor objected when defense counsel asked the witness to try to get the bag inside the witness's shoe and sock, on redirect, the prosecutor had Cook engage in such a demonstration (id. at 149-153) -- with limited

success according to the characterizations of both Mr. xxxxxxx's counsel (8/5 Tr. 88-89) and the prosecutor (id. at 102-103). No identification was found on Mr. xxxxxxx or in his luggage (8/4 Tr. 169-170). The government put the following items recovered from Mr. xxxxxxx into evidence: $306 in cash (id. at 209-210), a train ticket in the name of "M. xxxxxxx" (id. at 173), and an address book, on one page of which was written, "Mike xxxxxxx 458658 920 train 91 Bed A car 8110" (id. at 208-209).

Jerry Walker, the DEA chemist, testified that the material allegedly taken from Mr. xxxxxxx's sock (Government Exhibit 11) weighed 54.47 grams and was 54% cocaine base (id. at 257, 270-271, 273, A. 27). The material taken from the bathroom weighed 35.69 grams and was 84% cocaine base (8/4 Tr. 260). Mr. Walker testified that the fact that the two samples of cocaine base were of widely varying purities indicated that they came from different sources (id. at 272).

Detective Lawrence Coates testified as an expert in drug trafficking. He opined that the drugs allegedly recovered from the bathroom and from Mr. xxxxxxx's sock would have a retail value in Washington D.C. of $4758 and $7,222, respectively (8/5 Tr. 17-18). Their retail value in a city farther south would be approximately $11,000 and $18,000, respectively (id.). Over objection (A. 41-43), Detective Coates testified that under a "hypothetical" with facts precisely matching those in this case "you have a classic courier[ing] or transporting of drugs" (8/5 Tr. 25).

After the government rested (id. at 36), the court granted Mr. xxxxxxx's motion for judgment of acquittal (id. at 51). The court then discussed closing arguments and jury instructions with the remaining parties, at which time Mr. xxxxxxx's counsel pointed out that there had been no evidence concerning the conversation allegedly overheard between the two defendants that the prosecutor had talked about in her opening statement (id. at 52-53). The court agreed with defense counsel that the prosecutor could not refer in closing argument to anything that had not been admitted as evidence (id.). Mr. xxxxxxx then rested without introducing any evidence (id. at 61).

3. The Prosecutor's Closing Argument

The prosecutor began her closing argument as follows (id. at 64-67) (emphasis added):

Good afternoon, ladies and gentlemen. How did the Drug Interdiction Team on March 24th come to suspect that Mr. xxxxxxx was bringing illegal drugs into the District of Columbia? No one called the Drug Interdiction --

[DEFENSE COUNSEL]: Objection, Your Honor. May we approach?

THE COURT: No.

[THE PROSECUTOR]: No one called the Drug Interdiction Team to say, "Someone in Bedroom A is bringing drugs into our city." No one called Amtrak police to say, "Look in Bedroom A. You might find some drugs." Investigator Cook told you that he came to suspect from a single piece of paper. . . .

. . . He reviews reservation information and ticket information from passengers who are traveling on the Amtrak trains. Certain things that he reviews, when he reviews that information, he looks for certain things.

He looks for people who are traveling one way on long-distance travel with no indication of how they anticipate returning. He looks for people who paid for their ticket in cash shortly before the train is scheduled to depart. He looks for that because he said someone who is traveling long distance on a train that is going to take several hours, the trip is going to take several hours, generally like to get to the station early to get themselves settled into a compartment, especially if they are traveling in a sleeping compartment. They like to come to the station and get their luggage into the sleeping compartment early.

So, if they come to the station and pick up the ticket moments before the train is to depart, that is something he looks for.

He told you he looks for people who are traveling from what are known as source cities and that New York City has been defined as a source city . . .

He looks for people who are traveling in the sleeping compartments . . .

Investigator Cook told you that it is not any one single of these factors which alerted his attention. Any one of these factors alone or two or three of these factors together may not alert his attention for it is the combination of all of the factors which gives rise to suspicion. It doesn't give them enough information to arrest an individual, but it alerts them. It raises their suspicion that perhaps this person is carrying illegal narcotics.

Any one of those factors to you or me might not alert our suspicion, but someone who is as experienced as Investigator Cook, who has been working Interdiction every day for five years, has come to recognize these things, and Detective Coates told you that that is the case.

. . . [Investigator Cook] picked [Mr. xxxxxxx] out from a piece of paper based on his interdiction experience. And after reviewing Mr. xxxxxxx's reservation information, he decided that he wanted to attempt an interview with Mr. xxxxxxx . . .

During her rebuttal argument, the prosecutor argued (8/5 Tr. 103): "It is ridiculous to suggest that an officer, who has sworn to uphold the law, would come in here and testify untruthfully."

The jury acquitted Mr. xxxxxxx of Count One (the drugs allegedly found in the bathroom) but convicted him of Count Two (the drugs allegedly found in his sock) (A. 28).

4. Sentencing

The court held a sentencing hearing on October 28, 1993, at which it considered the objections to the presentence report filed by Mr. xxxxxxx's counsel (A. 29-35). First, the court found by a preponderance of the evidence that the drugs found in the bathroom (the 35.69 grams for which Mr. xxxxxxx was acquitted on Count One) was "relevant conduct" and should be added to the weight of the drugs found in Mr. xxxxxxx's sock (the alleged 54.47 grams for which he was convicted on Count Two) for purposes of determining Mr. xxxxxxx's base offense level (S. Tr. 1-8).

Defense counsel then sought to challenge the weight of the drugs for which he was convicted in Count Two, stating that Mr. xxxxxxx "has been insistent that he believes the weight of the drugs is incorrect" (id. at 10). Specifically, counsel reminded the court that the drug weight had come up in connection with the motion to withdraw on the first day of trial, when counsel had explained to the court that one thing she had not been able to accomplish in preparing for trial was to have the Count Two drugs independently weighed (S. Tr. 11, 8/3 Tr. 10-11). At the time of the motion to withdraw, the court had stated that the weight of the drugs was a "significant issue," but "only as to the sentencing phase, not as to the trial phase" (8/3 Tr. 12). When the court had suggested that the issue of determining the weight would be the same no matter who Mr. xxxxxxx's counsel was, defense counsel had responded (id.):

Perhaps someone would be able to come up with a more ingenious way to accomplish that end. I spend three business days doing nothing but trying to get this done. I made calls all around the country, and I was not successful. Should I remain in the case, and should there be a sentencing date, then I would try to do that again.

At the sentencing, defense counsel explained that, because the DEA had been unwilling to release the entire weight of drugs to an independent laboratory, she had taken her only remaining option and subpoenaed the DEA chemist to come to the sentencing with the drugs and his scale (S. Tr. 11-12). The subpoena had originally been for the next day, but when the judge, who was visiting in this district, had advanced the sentencing by a day to accommodate his return to his home district, counsel had resubpoenaed Mr. Walker for the new sentencing date (id. at 12-13, 14-15). After agreeing to "expedite" the subpoena, the prosecutor instead informed Mr. Walker that he did not have to come to court until the next day because he had not actually received the second subpoena (id. at 12-13). Moments before the sentencing hearing, Mr. Walker's supervisor informed defense counsel by phone that the DEA had not sent Mr. Walker to court because the prosecution had not subpoenaed him (id. at 13, 15-16). The supervisor stated that she was sending him over, but was vague about when he might arrive at the courthouse (id. at 15).

The prosecutor explained that after she had arranged with Mr. Walker to comply with the subpoena, she had received a call from the DEA General Counsel stating that it was "against their procedures" to bring their scales to court (id. at 16-17). The prosecutor then argued that, in any event, the drug weight might have changed, to which the court responded, "I understand that. But if you are going to argue that no defendant can ever be permitted to have drugs reweighed, you are not going to succeed in that argument" (id. at 17). When the prosecutor argued that defense counsel had had a full opportunity to examine Mr. Walker at trial, the court stated (id. at 18-20) (emphasis added):

Well, that's true, but I did make the comment during the course of the trial that the course of the examination was more directed at sentencing than it was to the triers of fact, the jury.

And I was trying to move -- I thought rightfully so -- the case to a just conclusion in the sense that the jury should hear the appropriate evidence of the jury's consideration, rather than getting into side issues that were sentencing considerations.

Yes, I did make that statement. I suppose I had expected that in the event that the defendant was found guilty, that during the interim period in which the probation report is being made, [defense counsel] would make whatever inquiries she wanted to make and that were appropriate and they would be included in the presentence report. That's normally what happens.

She had advised me that she attempted to do that and was unable to do it and attempted to use this method.

All I'm saying is that the appropriate manner of conduct would have been to assist her in getting into the DEA.

If the DEA officer had told me, when I was an Assistant with the United States, that their procedures didn't permit it, I would tell them "Your procedures go to hell."

. . .

A court order is going to control.

And if you want -- I would have told the General Counsel, "If you want to file something to challenge a valid order, that's fine."

But don't ever let one of these agencies tell you they've got a procedure and they're not going to comply with a valid court order.

Defense counsel restated her objection to going forward with sentencing without the chemist, at which time the court stated (id. at 19-20):

Well, the court is satisfied that it's got the factual matters before it. The chemist was on the stand and testified, and the court is satisfied that it's credible.

I have seen the chemist; I've been able to evaluate the credibility of the chemist; he did so testify that there was no question; but that whatever the chemist would say, I have no reason, no factual reason, that it would in any way change the sentencing guidelines before the court.

If I thought it would, then it would be making a big difference. But it does not.

Mr. xxxxxxx's guideline range was 135 to 168 months (S. Tr. 27). Based on mitigating factors in Mr. xxxxxxx's background not adequately taken into consideration by the Sentencing Commission, the court departed downward to the ten-year mandatory minimum sentence (S. Tr. 29-30).

SUMMARY OF ARGUMENT

Mr. xxxxxxx's prosecutor deprived him of a fair trial by referring in her opening statement to multiple damaging facts that were never borne out by the evidence, including an alleged statement by Mr. xxxxxxx himself that his money was "drug related." Although not every variance between the advance description and the actual presentation of evidence constitutes reversible error, Frazier v. Cupp, 394 U.S. 731, 736 (1969), the prosecutor's actions here were sufficiently prejudicial to require reversal of Mr. xxxxxxx's conviction.

The alleged statement about "drug related" money was essentially a confession -- a uniquely damaging kind of evidence that is particularly difficult for jurors to disregard. Moreover, the prosecutor in closing argument touted the "suspicious" reservation information that she had told the jury about in her opening statement but that the court had refused to admit into evidence -- essentially urging the jury to "suspect" (and therefore convict) Mr. xxxxxxx of transporting drugs based on inadmissible hearsay. Given the sheer number of never-proved facts improperly conveyed to the jury, the prejudicial nature of those facts, and the doubts the defense was able to cast on the government's properly admitted evidence, the cumulative damage to Mr. xxxxxxx was too great to be cured with a standard instruction about the non-evidentiary nature of counsel's statements.

The government violated Rule 16, Fed. R. Crim. P., when it ambushed Mr. xxxxxxx with Investigator Cook's testimony that Mr. xxxxxxx hung his head in response to Cook's statement, "xxxxxxx, I am ashamed of you" (8/4 Tr.66-69). That nonverbal, but clearly testimonial, statement by Mr. xxxxxxx was highly incriminating because it communicated a consciousness of guilt that was inconsistent with Mr. xxxxxxx's contention that Cook had not in fact found drugs in his sock. Indeed, the prosecutor no doubt elicited the exchange for just that reason. The government's failure to disclose the statement adversely affected Mr. xxxxxxx's trial strategy by depriving him of the opportunity to move to suppress it. This Court should remand the case to allow Mr. xxxxxxx to prove that his nonverbal statement -- which was clearly the product of custodial interrogation -- was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), in which case the government will have the burden of proving that its admission was harmless beyond a reasonable doubt.

Finally, the district court abused its discretion in refusing to postpone Mr. xxxxxxx's sentencing until the DEA chemist complied with Mr. xxxxxxx's subpoena to appear at the sentencing with his scale. Mr. xxxxxxx had raised a reasonable dispute as to the weight of the drugs allegedly taken from his sock and a difference in weight of as little as 4.5 grams would have reduced Mr. xxxxxxx's mandatory minimum sentence by five years. In refusing to delay the sentencing, the court implied that it would have waited for the chemist if it thought the drug weight might actually affect Mr. xxxxxxx's potential sentence, but concluded that, because of relevant conduct not charged in the count of conviction, the guideline range would be the same no matter whether the drugs from the sock weighed less than 50 grams. While the court was correct that the guidelines range would not have been affected by a slight discrepancy in the drug weight, the court erred as a matter of law in assuming that relevant conduct not part of the offense of conviction could be used to determine the statutory mandatory minimum. Given that the district court departed downward to what it believed was the mandatory minimum of ten years, it might well have departed all the way to the five-year mandatory minimum if it had resolved the drug weight issue in Mr. xxxxxxx's favor. This Court should therefore remand for resolution of the drug quantity issue and, if the drugs allegedly recovered from Mr. xxxxxxx's sock are found to weigh less than 50 grams, for resentencing.

ARGUMENT

I.THE PROSECUTOR'S REFERENCE IN OPENING STATEMENT TO FACTS NEVER PUT IN EVIDENCE DEPRIVED MR. xxxxxxx OF A FAIR TRIAL.

A. Standard of Review

Mr. xxxxxxx's counsel objected repeatedly to the prosecutor's references in her opening statement to the information that was ultimately ruled inadmissible by the court: the "suspicious" information from the reservation printout and the fact that Mr. xxxxxxx was unemployed (8/3 Tr. 74-78, 83; 8/4 Tr. 5-6). Counsel also objected to the prosecutor's reference to the phone call to "Richard's" answering machine (8/3 Tr. 86) and moved for a mistrial at the end of the prosecutor's opening (id. at 85-86). Finally, defense counsel objected to the prosecutor's discussion in closing argument of the (inadmissible) "single piece of paper" that led Investigator Cook to "suspect" Mr. xxxxxxx of transporting drugs (8/5 Tr. 64). The issue whether Mr. xxxxxxx was unfairly prejudiced by the prosecutor's references to facts never put in evidence is therefore preserved for this Court's review. See United States v. Bailey, 675 F.2d 1292, 1296 (D.C. Cir.) (erroneous representations in opening statements require reversal only if the defendant was prejudiced by the error) (citing United States v. Gaither, 413 F.2d 1061, 1079 (D.C. Cir. 1969)), cert. denied, 459 U.S. 853 (1982);

United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir. 1985) (test is whether statements deprived defendant of fair trial).

B.The Prosecutor's Improper And Highly Prejudicial References Require Reversal In This Case.

The prosecutor's repeated references to highly damaging facts never put in evidence require reversal of Mr. xxxxxxx's conviction. In her opening statement, the prosecutor told the jury the following facts, none of which were borne out by the evidence actually admitted at trial:

-- Mr. xxxxxxx stated to Mr. Parson's during the booking process, "They'll keep the money because it's drug related" (8/3 Tr. 83).

-- When Mr. xxxxxxx asked Mr. xxxxxxx, "Why do you think they picked us?," Mr. xxxxxxx responded, "They must have called" (id.).

-- Mr. xxxxxxx and Mr. xxxxxxx were "unemployed" (id.).

-- The defendants paid for their tickets in cash (id. at 79).

-- They paid $163 extra to reserve a sleeper car (id.).

-- They did not make their reservation until the day before departure (id.).

-- They purchased their tickets just moments before the train was scheduled to depart Penn Station (id.).

--The call-back number on the reservation rang to the answering machine of someone named "Richard" (id. at 79-80).

The nature and amount of the never-admitted evidence referred to by Mr. xxxxxxx's prosecutor, as well as the way she later touted it, distinguish this case from those that have found no harm from opening statements citing facts not put in evidence. The leading case is Frazier v. Cupp, 394 U.S. 731 (1969), in which the government in opening statement summarized the expected testimony of Mr. Frazier's former co-defendant, but was not able to produce that evidence when the co-defendant asserted his privilege against self-incrimination. The Supreme Court held that not every variance between advance description and the actual presentation of evidence constitutes reversible error when a proper limiting instruction has been given and concluded that, under the particular facts in that case, the defendant's constitutional rights had not been impaired. Id. at 735-36. The court refused to assume that jurors would be so influenced by the prosecutor's "incidental statements during this long trial" that they would not appraise the evidence objectively, "[a]t least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution's case." Id. at 736.

The Court in Frazier left open the possibility that "some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable." Citing Frazier, this Court has held that "[d]epartures from the prosecutor's preview of the evidence . . . are tolerated, so long as the prosecutor does not tout them and no other circumstance suggests that the statement could have prevented the jury from properly appraising the evidence." United States v. Jordan, 810 F.2d 262, 265 (D.C. Cir.) (emphasis added) (refusing to reverse where discrepancy consisted of one word in a 215-line opening statement), cert. denied, 481 U.S. 1032 (1987).

Here, the fact that one of the defendant's unproved statements was essentially a confession ("[the money is] drug related"), made the prosecutor's reference to it uniquely prejudicial and almost impossible for the jurors to disregard. See Jackson v. Denno, 378 U.S. 368, 382 n.10 (1964) ("'regardless of the pious fictions indulged in by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it'") (citation omitted). A confession is a bell that is uniquely difficult to unring.

Other than Mr. xxxxxxx's hanging of his head (the admission of which was itself erroneous, see Argument II, infra at 30-34), the government introduced in evidence no inculpatory statements from the defendant himself. Rather, the government's proof that Mr. xxxxxxx had possessed crack cocaine in his sock rested almost entirely on the testimony of Investigator Cook and the last-minute "me too" testimony of Detective Lyles. The defense vigorously challenged Cook's claim that he had pulled a bag of crack cocaine from Mr. xxxxxxx's sock, arguing the implausibility of the hiding method described by Cook, the inconsistencies in the physical descriptions of the material allegedly seized, the difference in purity between the crack allegedly taken from Mr. xxxxxxx and the crack found in the bathroom, the failure of the drug-sniffing dog to alert when Cook followed Mr. xxxxxxx to the holding area, and the government's failure to save the videotape that recorded the supposed seizure. Given the weaknesses in the government's proof, the prosecutor's statement that Mr. xxxxxxx had volunteered that his money was "drug related" was devastating to the defense.

Moreover, the prosecutor clearly "touted" the inadmissible reservation information. She began her closing argument by emphasizing (over objection) that Investigator Cook "came to suspect [that the passengers in Mr. xxxxxxx's sleeper car were transporting drugs] from a single piece of paper" (8/5 Tr. 64) (emphasis added). Although the court had ruled the hearsay contained on that piece of paper inadmissible, the prosecutor pursued a strategy in closing argument designed to remind the jury implicitly of those contents -- the same contents she had explicitly outlined over objection in her opening. By reminding the jury in closing that Cook "looks for people who paid for their ticket in cash shortly before the train is scheduled to depart" (8/5 Tr. 65) and that Cook had decided to interview Mr. xxxxxxx based on his reservation information (id. at 67), the prosecutor succeeded in again getting Mr. xxxxxxx's "suspicious" reservation information before the jury despite its exclusion from evidence as hearsay. Indeed, the prosecutor's entire lengthy discussion of how Cook came to suspect Mr. xxxxxxx from the information on the reservation printout only served to tout that hearsay information and encourage the jurors, too, to "suspect" (and therefore convict) Mr. xxxxxxx based on inadmissible evidence (8/5 Tr. 64-67).

The prosecutor's discussion of the reservation printout information and the defendant's "unemployed" status was particularly egregious given that the questionable admissiblity of those items of evidence was apparent at the time of the opening statement. See United States v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988) (prosecutor's reference to expected expert testimony concerning jewelry worn by drug dealers was improper where admissibility "was sufficiently questionable that it was unreasonable to refer to it prior to receiving a favorable ruling from the district court"). Here, given the fact that the government had failed to disclose its intention to use the booking information about Mr. xxxxxxx's unemployment as a statement of the defendant, the government should have anticipated that such statement might be excluded from evidence. With respect to the reservation information, not only did the prosecutor not obtain a favorable ruling before mentioning it, she discussed it in the face of the court's rulings to "stay away from" the factors that led Cook to select Mr. xxxxxxx's car and to say only that the reservation printout showed that the train had originated in New York and that the occupants had purchased tickets to Hamlet, North Carolina (8/3 Tr. 74-78).

In Jones v. United States, 338 F.2d 553, 554 (D.C. Cir. 1964), this Court found reversible error where the proof did not bear out the prosecutor's preview of expected testimony and the prosecutor attempted to shore up its case by asking two leading questions that incorrectly assumed the missing evidence. The Court reversed despite the fact that the court had instructed the jury that opening statements were not evidence. The same result is called for here.

In light of the many doubts raised by the defense, the government's evidence in this case was far from overwhelming. And although the judge in this case did give the standard instruction to the effect that the jury should not consider the statements of the attorneys as evidence (8/3 Tr. 68, 70; 8/5 Tr. 115), this Court has found that "standard reminder" to be "an insufficient alert" where a prosecutor referred to unproved "other crimes" evidence in closing argument. See United States v. Foster, 982 F.2d 551, 555 n.7 (D.C. Cir. 1993). Likewise here, a routine jury instruction was not adequate to cure the many never-proven facts set out by the prosecutor in opening, particularly where one of those facts consisted of words -- purporting to come from the defendant's own mouth -- that linked him unmistakably to the crime charged.

II.THE GOVERNMENT VIOLATED RULE 16, FED. R. CRIM. P., WITH ITS SURPRISE USE OF MR. xxxxxxx'S NONVERBAL STATEMENT COMMUNICATING CONSCIOUSNESS OF GUILT.

A.Standard of Review

The remedy for nondisclosure under Rule 16 is within the sound discretion of the district court and a Court of Appeals will reverse because of the remedy chosen only where the trial court abused its discretion and the defendant can show prejudice to his substantial rights. United States v. Caudill, 915 F.2d 294, 299 (7th Cir. 1990); United States v. Brodie, 871 F.2d 125, 129 (D.C. Cir. 1989). Such prejudice "mean[s] more than that the statement was damaging to the defendant: the defendant must demonstrate that the untimely disclosure of the statement adversely affected some aspect of his trial strategy." United States v. Adeniji, 31 F.3d 58, 64 (2d Cir. 1994). Here, the government violated Rule 16 by surprising Mr. xxxxxxx with Cook's testimony at trial that Mr. xxxxxxx had hung his head in response to the officer's statement, "xxxxxxx, I am ashamed of you" (8/4 Tr. 66-67). Defense counsel fully preserved the issue by promptly moving for a mistrial and informing the court that she would have moved to suppress Mr. xxxxxxx's statement if the government had properly disclosed it to her (id. at 68-69).

B.The Government's Failure to Disclose Mr. xxxxxxx's Statement Adversely Affected His Trial Strategy In That, If He Had Known Of The Statement, He Would Have Moved To Suppress It Under Miranda v. Arizona.

The government should have disclosed Mr. xxxxxxx's nonverbal statement under Rule 16(a)(1)(A), Fed. R. Crim. P., which provides in relevant part (emphasis added):

Upon request of a defendant the government shall disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged. The government shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial.

Depending on when the videotape from the holding cell was destroyed (8/4 Tr. 88), Mr. xxxxxxx's nonverbal statement may have qualified as a "recorded" statement of the defendant within the possession of the government at the time the government provided discovery. Moreover, if Investigator Cook wrote down the substance of his exchange with Mr. xxxxxxx, those notes would qualify as "that portion of any written record containing the substance of any relevant oral statement made by the defendant." The statement would, in any event, have fallen under the disclosure requirements for any "oral statement" made in response to government interrogation that the prosecution intends to use at trial. One purpose of that provision is to "facilitate the raising of objections to admissibility prior to trial." Notes of Advisory Committee On Rules (1974 Amendment). Given that the Fifth Amendment extends to communicative nonverbal conduct, this purpose would be thwarted if Rule 16 "oral statements" were limited only to actual verbal communications. Mr. Because Mr. xxxxxxx's nonverbal statement was made in response to "interrogation" by a known government agent, its disclosure was required by Rule 16.

Although Rule 16 compelled disclosure of Mr. xxxxxxx's statement, the government instead chose to spring it on the defense without warning midway through the trial. "It is well-settled that the Government cannot refuse to disclose discoverable statements of the defendant under Rule 16 and nevertheless 'surprise' the defendant by using those same statements at trial. . . . [P]re-trial disclosure to the defendant is a condition of the Government's usage." United States v. Brodie, 871 F.2d 125, 129 (D.C. Cir. 1989). The Brodie court found the government's conduct improper under Rule 16 but did not reverse where the defendant's substantial rights were not prejudiced. Id. at 131-132. This case is closer to those cases discussed in Brodie in which the defense was totally unaware of the existence of the discoverable material and "the Government's eventual use of the material amounted to 'ambush.'" Id. at 130 (discussing United States v. Noe, 821 F.2d 604, 606-09 (11th Cir. 1987), and United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975)). See 8/4 Tr. 68 (xxxxxxx's counsel: "It was a complete surprise to me and a very unpleasant one.").

As this Court emphasized in Lewis, "[d]iscovery of the government's evidence of relevant and incriminating statements made by a defendant to police is of the utmost importance to the preparation of the defense." 511 F.2d at 802. Here, the withheld statement and response were highly incriminating because they communicated a consciousness of guilt completely inconsistent with Mr. xxxxxxx's defense that Cook had not in fact found drugs in his sock. The government's discovery violation affected Mr. xxxxxxx's trial strategy by depriving him of the opportunity to move to suppress the statement. See 8/4 Tr. 68-69 ("I would have addressed a motion to it had I been aware of it earlier").

Although the defense moved for a mistrial, the trial court ordered no relief at all (id.). The district court abused its discretion in not at least giving the defense an opportunity to establish that the statement was subject to suppression on constitutional grounds. This Court should now remand the case for that purpose. Assuming the district court concludes that the statement was obtained in violation of Miranda, the burden will then be on the government to establish that its admission against Mr. xxxxxxx was harmless beyond a reasonable doubt.

III.THE DISTRICT COURT ERRED IN REFUSING TO POSTPONE SENTENCING LONG ENOUGH FOR THE DRUGS TO BE REWEIGHED.

A.Standard of Review

Mr. xxxxxxx's counsel preserved this issue for full appellate review by making repeated efforts to have the DEA release the drugs to an independent laboratory for reweighing (8/3 Tr. 10-12, S. Tr. 11-12), serving a valid subpoena on the DEA requiring attendance of a chemist (with scales) at sentencing (S. Tr. 12-17), and objecting to going forward with sentencing in the absence of the chemist (S. Tr. 19). A district court's refusal to hear testimony on the issue of drug quantity is reviewed for abuse of discretion. United States v. Upshaw, 918 F.2d 789, 791 (9th Cir. 1990), cert. denied, 499 U.S. 930 (1991).

B.Mr. xxxxxxx Was Entitled To Have The Drugs Reweighed Where A xxxxxxx Difference In Weight Would Have Reduced His Mandatory Minimum Sentence By Five Years And The Delay Was Caused By The DEA's Willful Flouting Of Mr. xxxxxxx's Subpoena.

Rule 32, Fed. R. Crim. P., as in effect at the time of Mr. xxxxxxx's sentencing, provided in part as follows:

(a) Sentence

(1) Imposition of Sentence. Sentence shall be imposed without unnecessary delay, but the court may, when there is a factor important to sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved.

. . .

(3) Disclosure. (A) . . . The court shall afford the defendant and the defendant's counsel an opportunity to comment on the [presentence] report and, in the discretion of the court, to introduce testimony or other information relating to any factual inaccuracy contained in it.

. . .

(D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons.

"[A] central purpose of Fed. R. Crim. P. 32 is to guarantee 'a defendant adequate opportunity to challenge the information used against him at the time of sentencing.' United States v. Helmy, 951 F.2d 988, 998 (9th Cir.), cert. denied, 112 S. Ct. 2287 (1992)." United States v. Williams, 41 F.3d 496, 501 (9th Cir. 1994) (remanding to give defendant "adequate opportunity to demonstrate the lack of reliability of the government's proof" on issue of "great significance to the defendant"). See also Commentary to Sentencing Guideline § 6A1.3, Resolution of Disputed Factors (Policy Statement) ("When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information. . . . An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues."). Where a dispute over the amount of drugs involved in an offense under 21 U.S.C. § 841(a)(1) affects the statutory mandatory minimum sentence under § 841(b)(1), drug quantity is clearly a "factor important to the sentencing determination" under Rule 32. United States v. Wilkerson, 773 F. Supp. 479, 480 (D.D.C. 1991). However, because the quantity of drugs at issue is relevant only to punishment, United States v. Patrick, 959 F.2d 991, 996 n.5 (D.C. Cir. 1992), defendants generally do not have a meaningful opportunity to cross-examine witnesses at trial on the issue of quantity. United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied, 500 U.S. 927 (1991). Indeed, the judge in this case stated before trial that drug quantity would be a significant issue "only as to the sentencing phase, not as to the trial phase" (8/3 Tr. 12), and acknowledged at sentencing that he had made that statement in order to move the case along and avoid getting into side issues not before the jury (S. Tr. 18). Because Mr. xxxxxxx relied on the court's pre-trial statements in foregoing full exploration of the weight issue at trial, and because the alleged weight of the drugs at issue was less than 4.5 grams away from the 50-gram line, the weight of the drugs found in Mr. xxxxxxx's sock was "reasonably in dispute" at the time of his sentencing. See Zuleta-Alvarez, 922 F.2d at 36 (finding drug weight "reasonably in dispute" given that such weight is usually determined "in reliance upon trial testimony which may not have been subject to meaningful cross-examination").

Here, Mr. xxxxxxx's defense counsel took every reasonable step to obtain the evidence needed to challenge the drug weight alleged in the presentence report, including, as a last resort, issuing a subpoena to the DEA chemist in order to conduct a weighing of the drugs during the sentencing hearing. Compare id. (defense made no such efforts). In making her request that the drugs be physically weighed by the chemist at the sentencing hearing, counsel cited to the court a case in this district in which the sentencing judge had found the drugs to be under the 50-gram line after an in-court weighing. See Wilkerson, 773 F. Supp. at 480.

The trial court's refusal to postpone the sentencing in this case appears not to have been based on any belief that the dispute over quantity was not reasonable, nor on any belief that the method selected for resolution of the issue was not a legitimate one. See S. Tr. 16-19 (court scolding the prosecutor for failing to assist the defense in getting the drugs reweighed and for encouraging the DEA in its "deplorable" flouting of the defense subpoena). Instead, the judge appears to have based his decision to proceed without waiting for the chemist on his understanding that a xxxxxxx discrepancy in the weight of the drugs from the sock could not affect Mr. xxxxxxx's sentence because of the addition of the drugs from the bathroom as relevant conduct (S. Tr. 14, 19-20) ("If I thought it would [in any way change the sentencing guidelines before the court], then it would be making a big difference. But it does not.") (emphasis added). That understanding was wrong as a matter of law.

While the court was correct that, because of its relevant conduct finding, Mr. xxxxxxx's guideline range would not have changed even if the drugs in the sock weighed less than 50 grams, such a discrepancy in weight would have made a difference of five years in Mr. xxxxxxx's statutory mandatory minimum sentence. As the Second Circuit explained in United States v. Darmand, 3 F.3d 1578, 1580-81 (2d Cir. 1993) (emphasis added):

Unlike the Guidelines, which require a sentencing court to consider similar conduct in setting a sentence, the statutory mandatory minimum sentences of 21 U.S.C. § 841(b)(1) apply only to the conduct which actually resulted in a conviction under that statute.

The Darmand court reasoned that § 841(b)(1), setting forth the statutory penalties for "a violation of [§ 841(a)]," "indicates that the minimum applies to the quantity involved in the charged, and proven, violation of § 841(a)." Id. The government conceded in Darmand that no statutory mandatory minimum should have been imposed since the defendant possessed less than 5 grams of cocaine in connection with the drug conspiracy with which he was charged. See also United States v. Estrada, 42 F.3d 228 (4th Cir. 1994) (following Darmand). But see United States v. Reyes, 40 F.3d 1148, 1150-51 (10th Cir. 1994) (rejecting Darmand).

Here, the "violation" of § 841(a) of which Mr. xxxxxxx was convicted (Count Two) "involv[ed]" (see § 841(b)(1)(A) & (B)), only the drugs allegedly found in his sock -- not the drugs found in the bathroom, which were charged separately in Count One and for which Mr. xxxxxxx was acquitted. Therefore, Mr. xxxxxxx is subject to a ten-year mandatory minimum prison sentence under § 841(b)(1)(A)(iii) only if the drugs in his sock in fact weighed 50 grams or more. If the court had postponed the sentencing hearing until the chemist appeared with the scale and had determined that the drugs at issue in fact weighed less than 50 grams, Mr. xxxxxxx would have been subject to only a five-year mandatory minimum sentence under § 841(b)(1)(B)(iii). Although Mr. xxxxxxx's guideline range would have remained unchanged at 135-168 months, the judge in this case exercised his discretion to depart downward as much as he legally could depart (to the 120-month mandatory minimum) and might well have departed all the way to the 60-month minimum if the drug weight issue had been resolved in Mr. xxxxxxx's favor.

This Court should remand this case for further hearing on the drug weight issue and, in the event the district court determines that the drugs in fact weigh less than 50 grams, for resentencing. As was true of the 0.6 grams at issue in United States v. Barth, 788 F. Supp. 1055 (D. Minn. 1992), vacated in part on other grounds, 990 F.2d 422 (8th Cir. 1993), the 4.5 grams of mixture at issue here (only 54% of which was actually cocaine base) "is a slender reed on which to hang five years of a person's life," id. at 1056, "especially . . . when the triggering factor is the '100 multiplier' used in cocaine base cases," id.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court for a new trial. Failing that, this Court should remand for a suppression hearing with respect to the nondisclosed statement Investigator Cook elicited from Mr. xxxxxxx through custodial interrogation. At a minimum, the Court should remand the case to the district court for a hearing at which the drugs that were the subject of Mr. xxxxxxx's conviction will be weighed and, in the event that the court finds that those drugs weigh less than 50 grams, for resentencing.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_____________________________

LISA D. BURGET

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant xxxxxxx xxxxxxx

CERTIFICATE OF LENGTH

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

_________________________________

LISA D. BURGET

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief for Appellant xxxxxxx xxxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C., 20001, this 28th day of April, 1995.

_________________________________

LISA D. BURGET

Assistant Federal Public Defender