UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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No. xxxxxxxxxx
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UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxxxxxxxx, 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 timely notice of appeal from the final judgment of the district court having been filed on October 15, 1993, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.
ISSUES PRESENTED FOR REVIEW
I. Whether the prosecutor deprived Mr. xxxxxxx of due process under Doyle v. Ohio, 426 U.S. 630 (1976), by impeaching Mr. xxxxxxx's exculpatory testimony with his post-Miranda silence and referring again to that silence to cast doubt on his exculpatory account in her closing argument.
II. Whether the trial court erred in asking Mr. xxxxxxx to pass personal judgment on the credibility of a police officer, setting up for the jury a false choice between what the court mischaracterized as "two diametrically opposed stories."
III. Whether the trial court's jury instructions, framing the case as a simple credibility contest between the police and Mr. xxxxxxx and telling the jurors that they must decide "[w]hich side" is "telling the truth" and "which story is more likely to be true than the other," plainly lowered the government's burden below the constitutional standard of proof beyond a reasonable doubt.
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 May 27, 1993, a federal grand jury sitting in the District of Columbia returned a one-count indictment charging Mr. Derek D. xxxxxxx with possession of an unregistered firearm in violation of 26 U.S.C. 5861(d). A. 7. (1)
A jury trial commenced before the Honorable Harold H. Greene on July 27, 1993. On July 29, 1993, the jury returned a verdict of guilty. On October 7, 1993, Mr. xxxxxxx was sentenced to 57 months of imprisonment and three years of supervised release (A. 19-22). Mr. xxxxxxx filed a timely notice of appeal (A. 23).
B. Statement of Facts
1. The Government's Case
On May 4, 1993, at approximately 9:00 a.m., Officer Franklin Crews was patrolling in his marked cruiser when he received a radio lookout for a black male in the area of 11th and H Streets Northeast, wearing a blue and white jacket and carrying a Heineken beer box containing a shotgun (Tr. 71-72, 82). Officer Crews picked up Officer Robert Scippio, who had been on foot patrol, and proceeded to canvass the area stated in the lookout (Tr. 42-43, 72-73). When the officers pulled up to the stop sign on the southeast corner of 9th and I Streets, they observed three men standing in front of the Neighbors' Market, one of whom fit the lookout description and was holding a Heineken box (Tr. 44, 73, 78). (2) Both officers testified that that man was Mr. xxxxxxx (Tr. 44-45, 73). (3) Neither officer could give any description of the other two men (Tr. 61, 81-83).
Officer Crews advised the dispatcher that he had seen a subject matching the lookout description and then pulled the cruiser through the intersection to the northeast corner of 9th and I Streets, where the market was located (Tr. 74, 78). (4) Officer Crews testified that the individual with the box broke and ran as he and Officer Scippio got out of the car and began to walk towards him (Tr. 74-75). Officer Scippio testified that, after the man with the box motioned that he had seen the police car, Officer Scippio got out of the police car and said, "Excuse me, sir. Can you come here for a second," at which time the man took off running (Tr. 46). Neither officer saw where the other two men went (Tr. 62-63, 69, 81-82).
Officer Scippio chased the man with the box eastbound on I Street and north into an alley (Tr. 46), while Officer Crews headed north on 9th Street and then east on K Street (Tr. 75, 79). Officer Scippio testified that throughout the footchase through several cuts in the alley he was always three to five feet behind the man with the box (Tr. 46-47, 51, 63-64). When they reached a waist-high fence in the vicinity of 928 10th Street, still within one-block of the corner market, the man jumped over the fence with the box under his arm (Tr. 47, 64). With Officer Scippio still three to five feet behind him, the man then threw the box over a six-foot fence, located three to five feet away from the first fence, at which time "the shotgun separated from the beer box" (Tr. 47, 52, 64). (5) The defendant rapidly scaled the fence (Tr. 47, 52, 66). Officer Scippio scaled the fence more slowly and then abandoned the chase to recover the box and the shotgun (id.).
Officer Crews testified that, approximately two to three minutes after the man with the box had run away from 9th and I Streets, as the officer was running eastbound on K Street about 25-40 feet from the 10th Street intersection, he saw the same man running "catty-corner" toward K Street from 10th Street, removing his blue and white jacket as he ran (Tr. 75, 79, 88-89). He yelled at the man to stop (Tr. 89). The man turned and looked at him but kept running (id.). When the man reached K Street he had a five-foot lead on the officer, which grew larger as they crossed 11th Street (Tr. 76, 89). Officer Crews lost sight of the man as the man turned southbound into an alley (Tr. 76, 79).
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