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,
v.
xxxxxxx xxxxxxx,Defendant-Appellant.
_________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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REPLY BRIEF FOR APPELLANT
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SUMMARY OF ARGUMENT
The government contends that Mr. xxxxxxx's trial counsel failed
in several respects to preserve his appellate issues. Given that
trial counsel was operating under a clear conflict of interest
throughout the trial, and twice sought to withdraw as counsel, any
such lapse in representation amounts to ineffective assistance of
counsel, regardless of prejudice. Cuyler v. Sullivan, 446 U.S.
335, 348-350 (1980). Unless this Court concludes, as Mr. xxxxxxx
contends, that all appellate issues were fully preserved, this
Court should remand for an evidentiary hearing as to whether the
conflict of interest adversely affected trial counsel's
representation.
In addition, the prosecutor had no basis for believing that
Mr. xxxxxxx's hearsay reservation information would be admissible as
"background" evidence, and she compounded her initial opening
statement error by touting that inadmissible evidence in closing
argument. The prosecutor's many references to facts never put in
evidence -- particularly Mr. xxxxxxx's "confession" that his money
was "drug related" -- were sufficiently prejudicial to require
reversal of Mr. xxxxxxx's conviction.
This Court should reject the government's contention that Rule
16, Fed. R. Crim. P., contains a loophole for nonverbal statements.
Moreover, the suggestion that Mr. xxxxxxx's hanging of his head was
non-testimonial and ambiguous should not be accepted when it is
clear that the only reason the government ambushed the defense with
that testimony was because it communicated a consciousness of guilt
inconsistent with Mr. xxxxxxx's denial that he possessed any drugs in
his sock.
Finally, Mr. xxxxxxx's challenge to the weight of the drugs
allegedly seized from his sock was neither untimely nor
speculative. To the extent the judge was surprised that the
dispute had not been resolved before sentencing, he blamed the
government -- not Mr. xxxxxxx -- for the delay. Mr. xxxxxxx raised a
reasonable dispute to the chemist's data that was not based simply
on the weight being "close to the line." When Mr. xxxxxxx's counsel
could not reveal the basis for Mr. xxxxxxx's insistence that the
weight was incorrect without violating Mr. xxxxxxx's attorney-client
privilege and jeopardizing his appeal, the judge accepted the
challenge without demanding to know its basis. The court's refusal
to wait for the chemist was based on a legal misunderstanding as to
the significance of the dispute, not on any finding that the
dispute was not reasonable.
ARGUMENT
I.TO THE EXTENT TRIAL COUNSEL, ACTING UNDER A CONFLICT OF INTEREST, FAILED TO FULLY PRESERVE MR. xxxxxxx'S APPELLATE ISSUES, SUCH LAPSE AMOUNTS TO INEFFECTIVE ASSISTANCE OF COUNSEL.
The government acknowledges that under Cuyler v. Sullivan, 446
U.S. 335, 348-350 (1980), "a defendant can establish ineffective
assistance of counsel under the Sixth Amendment if he or she shows
simply that a conflict of interest adversely affected the adequacy
of the counsel's representation." Gov't Br. at 16-17. The
government is wrong in stating that Mr. xxxxxxx is not alleging such
ineffective assistance. In his opening brief, Mr. xxxxxxx made clear
that he believed that his counsel had fully preserved his appellate
issues, but to the extent she had not, such a lapse would establish
ineffective assistance given the conflict of interest under which
she was operating. See Appellant's Br. at 24 n.16.
In opposing Mr. xxxxxxx's appeal, the government has now argued
several instances in which it claims defense counsel failed to
preserve his appellate issues.
To the extent that any of these
alleged lapses have a "negative effect upon" Mr. xxxxxxx's appeal, it
is Mr. xxxxxxx's position that they amount to ineffective assistance
of counsel. United States v. Shark, 51 F.3d 1072, 1076 (D.C. Cir.
1995). Indeed, to the extent this Court agrees with the government
that defense counsel failed to fully preserve the issues Mr. xxxxxxx
has raised on appeal, he need not establish any prejudice to obtain
relief under the Sixth Amendment. See Cuyler, 446 U.S. at 349-350
("a defendant who shows that a conflict of interest actually
affected the adequacy of his representation need not demonstrate
prejudice in order to obtain relief").
The government argues that "nothing in the record suggests any
conflict of interest affecting trial counsel's performance" and
characterizes trial counsel's motion to withdraw as simply "based
on difficulties in working with appellant" (Gov't Br. at 17). In
fact, trial counsel renewed her motion to withdraw on the first day
of trial upon learning that Mr. xxxxxxx had informed the district
court in writing of his intention to file a complaint against her
with Bar Counsel (8/3 Tr. 7-8). In addition to this clear conflict
of interest, counsel informed the court that her relationship with
Mr. xxxxxxx had "deteriorated to the extent that we are not really
capable of holding a conversation with each other" (8/3 Tr. 12).
Counsel's failure to move for mistrial or to seek to litigate the
Miranda issue mid-trial, for example, may well have been the result
of counsel's desire not to prolong her representation of Mr. xxxxxxx
any longer than necessary. See 8/3 Tr. 8 ("Few things would
delight me more, Your Honor, than to be excused from this case, to
be perfectly frank about it").
To the extent that this Court cannot determine on this record
whether the alleged lapses were linked to the conflict of interest,
the Court should remand for a hearing on this issue. See United
States v. Fennell, No. 93-3064, slip op. at 14 (D.C. Cir. May 5,
1995) ("When an appellant has not raised a claim of ineffective
assistance of counsel before the district court, either in a motion
for a new trial, pursuant to Federal Rule of Criminal Procedure 33,
or in a collateral attack, under 28 U.S.C. § 2255, our general
practice is to remand the claim for an evidentiary hearing.").
II.THE PROSECUTOR'S MULTIPLE REFERENCES TO FACTS NEVER PUT IN EVIDENCE DEPRIVED MR. xxxxxxx OF A FAIR TRIAL.
A.The Prosecutor Had No Basis For Believing That The Hearsay Reservation Information Would Be Admissible As "Background" Evidence.
The government argues that the prosecutor was justified in
assuming that the reservation information that led Investigator
Cook to target Mr. xxxxxxx would be admissible as "background"
information, citing cases upholding testimony that a defendant
matched a criminal "profile," at least when admitted only as
background information, not substantive evidence of guilt (Gov't
Br. 17-19). Here, however, because Investigator Cook learned the
background facts from a computerized reservation form, they were
clearly hearsay. The prosecutor set out in her opening all the
damning facts gleaned from the reservation form despite the fact
that she had no witness prepared to lay a foundation for their
admission under the business records exception to the hearsay rule.
The government now makes the argument, admittedly not raised
below (Gov't Br. at 19 n. 7), that the reservation information was
not hearsay because, as "background" information, it was admitted
not for the truth of the matter asserted, but merely to explain why
Investigator Cook approached Mr. xxxxxxx.
Although some courts have
accepted this argument, this Court has not. In United States v.
Hilliard, 569 F.2d 143 (D.C. Cir. 1977), the government had
elicited police testimony suggesting that witnesses at the scene
had named the defendant as the robber and this Court reversed --
despite the government's argument that the testimony was not
hearsay, but merely "background" evidence offered to explain why
the police had included the defendant's picture in their
photographic array:
We reject this argument. There was no issue as to the
presence of Hilliard's picture in the array, and
therefore no occasion for any explanation. In any event,
explanation of a photographic array cannot be allowed to
repeal the hearsay rule.
See also United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994)
(admission of police "background" testimony "questionable," but
harmless); United States v. Freeman, 514 F.2d 1314, 1317 (D.C. Cir.
1975) (officer's testimony that witnesses said one of robbers was
"Dickie" was inadmissible hearsay, not admissible to show why
police went to defendant's house since hearsay "problem could have
been avoided entirely simply by restricting the officer's testimony
to a statement that he received certain information leading him to
the address"), vacated on other grounds, 598 F.2d 306 (D.C. Cir.
1979); 2 McCormick, On Evidence § 249, at 104 (4th ed. 1992)
("[Officer's] testimony that he acted 'upon information received,'
or words to that effect, should be sufficient [to explain
background for his conduct]. However, cases abound in which the
officer is allowed to relate historical aspects of the case,
replete with hearsay statements in the form of complaints and
reports, on the ground that he was entitled to give the information
upon which he acted. The need for the evidence is slight; the
likelihood of misuse is great.").
The district court appears to have adopted an approach similar
to that suggested by McCormick -- allowing a very general
description of how Investigator Cook came to approach Mr. xxxxxxx's
sleeper, but not allowing introduction of the prejudicial hearsay
details from the reservation form. The government claims that the
trial court gave the prosecutor the green light to discuss anything
on the reservation form in her opening (Gov't Br. at 18). But the
court's ruling was very narrow: the prosecutor was to "stay away
from" the reasons why the officers approached Mr. xxxxxxx's
compartment (8/3 Tr. 76) with the exception that she could say that
"they knew that the people occupying that room [had] purchased
tickets in New York, and were on their way to Hamlet" (8/3 Tr. 77).
See also 8/3 Tr. 76-77 ("I have no problem with you showing they
were on the train, the train originated in New York, and your
officer said at the suppression hearing and can say here that the
printout showed that it originated in New York. He verified that
they bought the tickets in New York.").
In any event, the government cannot claim that the prosecutor
limited her use of the never-admitted reservation information to
"background." The prosecutor spent almost two pages of her seven-page opening statement (8/3 Tr. 73-74, 78-85) and over three pages
of her fourteen-page closing argument (8/5 Tr. 64-78) on the
suspicious information that "alerted" Investigator Cook and caused
him to "suspect that Mr. xxxxxxx was bringing illegal drugs into the
District of Columbia" (8/5 Tr. 66, 64). This lengthy and detailed
argument was clearly designed to do more than just give the jury
background as to how Cook came to be at Mr. xxxxxxx's door -- a
circumstance never challenged by the defense. It was designed to
persuade the jury that Mr. xxxxxxx was a drug courier because his
reservation information -- all hearsay -- matched the profile of a
drug courier.
B.The Many Never-Proven Facts Prejudiced Mr. xxxxxxx's Case.
Used as it was, the reservation information was devastating to
any defense that the drugs were left in the bathroom by a previous
occupant and that the police were not telling the truth about
finding drugs in Mr. xxxxxxx's sock. Likewise, far from being
"fairly innocuous" (Gov't Br. at 20), the prosecutor's other
references to facts never put in evidence "sufficiently prejudiced
[Mr. xxxxxxx] to call for reversal." United States v. Gaither, 413
F.2d 1061, 1079 (D.C. Cir. 1969).
The improper reference to Mr. xxxxxxx being "unemployed" was
extremely prejudicial, given the testimony of Investigator Cook
that sleeping car accommodations are "a very expensive way of
travel" (8/4 Tr. 13) and the prosecutor's reference in opening to
the excluded hearsay information that Mr. xxxxxxx "had paid $163
extra for the use of that sleeper car" (8/3 Tr. 79) and had paid
"cash" for his ticket (id.). The fact that Mr. xxxxxxx had an
unexplained source of cash did not just add a "minor detail" to the
government's case (Gov't Br. at 20), but rather dealt another
serious blow to Mr. xxxxxxx's position that he was not a drug
courier.
Most devastating, though, was the prosecutor's statement to
the jury that Mr. xxxxxxx had said to Mr. Parsons during the booking
process, "They'll keep the money because it's drug related" (8/3
Tr. 83) (emphasis added).
The government argues that this
"isolated remark" (Gov't Br. at 21) did not unduly prejudice Mr.
xxxxxxx because "[a]t the time appellant spoke these words, the
police had recovered drugs and arrested appellant and his
companion" and "[t]he logical conclusion that the police would
assume that money taken from appellant was drug-related did not
necessarily reflect an admission of guilt" (Gov't Br. at 20).
First, of course, Mr. xxxxxxx disputed that the police had recovered
drugs from his person. Moreover, the statement quoted by the
prosecutor was not, "They'll keep the money because they'll claim
it's drug related." The prosecutor told the jury that Mr. xxxxxxx
had said that the money was "drug related." Nothing could be as
"central" to the issues in a drug possession case as the
defendant's confession that his money is "drug related." Compare
Gaither, 413 F.2d at 1079-80 (prosecutor's misstatement of evidence
harmless error where case was not close, facts misstated did not
bear on central issue, and the court contemporaneously instructed
the jurors that their recollection of the evidence would control).
The government is wrong in arguing that this case was not
close. In fact, the government's case hinged almost entirely on
the credibility of one police witness -- Investigator Cook.
The
government's suggestion that the prosecutor simply "forgot" to
elicit Detective Lyles's observation of the alleged seizure from
Mr. xxxxxxx's sock "in the fluster over Lyles's hearsay account of
what Cook told her" (Gov't Br. at 23 n.9) makes no sense. The two
different stories offered by Lyles, compare 8/4 Tr. 210-211 (on
direct: Cook told her he seized the drugs from Mr. xxxxxxx's sock)
with 8/4 Tr. 221 (on cross-examination: she saw Cook seize the
drugs from the sock), were plainly inconsistent since there would
be no reason for Cook to tell her where the drugs had come from
(and no reason for her to be so eager to sneak in that hearsay) if
she had personal knowledge of the source of the drugs. Lyles's
credibility was destroyed when she blurted out hearsay in violation
of the judge's directive not to repeat Cook's statement and then,
when the judge instructed the jury to disregard that hearsay,
changed her story on cross-examination and claimed personal
knowledge.
The government's attempt to downplay the discrepancies in the
descriptions of the substance supposedly seized from Mr. xxxxxxx's
sock likewise fails. The government argues that "if the crack had
been somewhat crushed, it may well have been a subjective question
whether it resembled rock or powder" (Gov't Br. at 24). In fact,
the drug was so fine and powdery that the government's original
indictment alleged that it was powder cocaine, not crack (A. 14-15), and the government put on an expert witness to explain to the
jury that using a microwave to make crack "gives it a powdery
consistence as the regular cocaine powder" (8/5 Tr. 13). The
widely varying descriptions of the substance allegedly seized from
Mr. xxxxxxx's sock (see Appellant's Br. at 11 & n.6) therefore cast
serious doubt on the government's case.
In light of the closeness of this case and the character and
sheer volume of never-proven facts improperly put before the jury,
the standard jury instructions given here were not sufficient to
allow this Court to "say, 'with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error.'" Gaither, 413 F.2d at 1079 (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)). See id. ("We have not regarded
the standard judicial caution that the jury's recollection controls
as a cure-all for [prosecutorial statements not supported by the
evidence]"); Jones v. United States, 338 F.2d 553, 554 (D.C. Cir.
1964) (reversing despite instruction that opening statements were
not evidence).
III.THE GOVERNMENT'S DISCOVERY VIOLATION PREJUDICED THE DEFENSE.
The government urges this Court to find that "[n]onverbal
conduct is one hole the [criminal discovery] rulemakers declined to
fill" (Gov't Br. at 28), reasoning that "Rule 16 does not grant the
defendant the right to discover all evidence relevant to motions to
suppress" (Gov't Br. at 27). Mr. xxxxxxx never claimed he was
entitled to "all evidence relevant to motions to suppress," simply
any statement made by him that might be the subject of such a
motion. The government concedes that disclosure of nonverbal
statements "is certainly the better course" (Gov't Br. at 28).
Indeed, any other interpretation of Rule 16 would mean that if the
government asked a defendant "Did you do it?," it would be required
to disclose to his counsel a "Yes" answer, but not an affirmative
nod of the head. The government suggests no possible reason why
Congress would create such a bizarre "hole" in the discovery rules.
This Court should reject the government's disingenuous
suggestion that the nonverbal conduct at issue here might not
qualify as "testimonial" because "putting one's head down does not
necessarily reflect an intent to convey the actor's thoughts"
(Gov't Br. at 29 n.13). Clearly, the government did not put this
surprise testimony in evidence to show that Mr. xxxxxxx was
"ang[ry]," "resign[ed]," "disgust[ed]," "fatigue[d]," or
"collecti[ng] [his] thoughts" (Gov't Br. at 30). The government
put this testimony in for one reason -- to show that Mr. xxxxxxx had
confessed to Investigator Cook his shame concerning the drugs in
his sock. This evidence obviously had an "impact on [Mr. xxxxxxx's]
'core defense theory at trial'" (Gov't Br. at 30, quoting United
States v. Brodie, 871 F.2d 125, 130 (D.C. Cir. 1989)) -- that he
had no reason to be ashamed because he never had any drugs in his
sock.
IV.MR. xxxxxxx'S OBJECTION TO THE WEIGHT OF THE DRUGS WAS NOT UNTIMELY OR SPECULATIVE.
The government argues that Mr. xxxxxxx failed to offer a timely
objection to the weight of the drugs allegedly recovered from his
sock (Gov't Br. at 34-37). In fact, defense counsel sought to have
the drugs weighed before trial but was blocked by the DEA's refusal
to release the drugs to a local laboratory and the district court's
refusal to send the entire weight of drugs out of the jurisdiction
(8/3 Tr. 10-11, S. Tr. 11-12). In reliance on the court's
statement that drug weight would be "a significant issue . . . as
to the sentencing phase" (8/3 Tr. 12), counsel stated that "should
there be a sentencing date, then I would try to do that again"
(id.). After trial, when the DEA persisted in its refusal to
release the drugs, counsel took the only available option by
subpoenaing the DEA chemist and his scales for sentencing.
Contrary to the government's suggestion, the weight issue was not
"capable of being resolved" without the presence of the chemist at
the sentencing hearing (Gov't Br. at 33).
While it might have been better form to have given the court
advance notice in writing that the weight dispute was still
unresolved, the government was certainly aware of Mr. xxxxxxx's
position and defense counsel may well have informed the probation
officer of the unresolved dispute orally, as is permitted by Local
Rule 311(a). Certainly there was nothing that the probation
officer could have done to resolve the issue in advance of the
sentencing hearing.
In any event, the court's refusal to wait for
the chemist was not based on a finding of untimeliness. Cf. Local
Rule 311(f) ("The court, . . . for good cause shown, may allow a
new objection to be raised at any time before the imposition of
sentence"). While the judge was surprised to learn that the
parties had not arranged an independent weighing before sentencing,
once he heard how defense counsel's attempts had been thwarted, he
held the government -- not the defense -- responsible for the
delay. See S. Tr. 18 ("[Defense counsel] 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 [for the government] to assist her in
getting into the DEA").
The government is incorrect that Mr. xxxxxxx "never proffered
that a reweighing likely would show that the substance weighed less
than 50 grams" (Gov't Br. at 38). At sentencing, counsel stated
plainly that "[t]he defendant has been insistent that he believes
the weight of the drugs is incorrect" (S. Tr. 9). When the court
inquired as to the basis for that belief, counsel replied that she
could not answer without violating the attorney-client privilege
and undermining Mr. xxxxxxx's appeal (S. Tr. 10). The judge accepted
that response and pursued the issue no further: "I'm not asking
you to do that; I don't expect you to do that" (id.). Mr. xxxxxxx's
belief that the weight testified to by the chemist at trial was
incorrect can hardly be dismissed as speculative when the testimony
was never cross-examined (because it was not relevant to any issue
at trial) and when an in-court reweighing in a previous case in
this district, cited by defense counsel (S. Tr. 12), had resulted
in a more than 2% change in weight, putting the total just under
the 5-gram line. See United States v. Wilkerson, 773 F. Supp. 479
(D.D.C. 1991).
The government's reliance on United States v. Garcia, 900 F.2d
571 (2d Cir.), cert. denied, 498 U.S. 862 (1990), is misplaced. In
Garcia, the defendant did not claim that the chemist had
inaccurately weighed the drugs, but merely argued that the accurate
weight in "grains" might have been "rounded up" enough to put it
incorrectly over the 250 milligram cutoff. Id. at 573-574. The
Second Circuit rejected that argument after demonstrating that it
was mathematically impossible for such rounding to have made the
9.3 milligram difference. Id. at 574-575. In Garcia, defense
counsel argued that "it is only because the conversion places us so
close to the boundary line that the issue arises." Id. at 573.
Here by contrast, Mr. xxxxxxx in fact contested the accuracy of
chemist's measurements. While his dispute with the chemist had
relevance to his sentence only because the weight was "close to the
line," that is not the same thing as claiming that "[s]imply being
close to the line . . . create[d] a 'reasonable dispute'" (id. at
575).
CONCLUSION
For the foregoing reasons, as well as those stated in Mr.
xxxxxxx's opening brief, 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. In
addition, unless this Court concludes that all of Mr. xxxxxxx's
appellate issues were fully preserved, it should also remand for an
evidentiary hearing as to whether the trial counsel's conflict of
interest adversely affected her representation of Mr. xxxxxxx. At a
minimum, the Court should vacate Mr. xxxxxxx's sentence and remand
the case to the district court for a new sentencing hearing.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_____________________________
LISA B. WRIGHT
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Appellant xxxxxxx xxxxxxx
CERTIFICATE OF LENGTH
I hereby certify that the foregoing Reply Brief for Appellant
xxxxxxx xxxxxxx does not exceed the number of words permitted pursuant
to D.C. Circuit Rule 28(d).
_________________________________
LISA B. WRIGHT
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief for
Appellant xxxxxxx xxxxxxx have been delivered by first-class mail to
counsel for Appellee, John R. Fisher, Esq., and Elizabeth H.
Danello, Esq., Appellate Division, United States Attorney's Office,
555 Fourth Street, N.W., Washington, D.C., 20001, this 13th day of
June, 1995.
_________________________________
LISA B. WRIGHT
Assistant Federal Public Defender