ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xx-3143

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF FOR APPELLANT

_________________________________________________________________

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. 9x-89

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Defendant-Appellant, Anthony L. xxxxx, hereby states as follows:

A. Parties and Amici:

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

B. Rulings Under Review:

This is an appeal from the judgment of the district court (Honorable Joyce Hens Green), dated July 14, 1993, adjudging appellant guilty after a jury trial on charges of possession with intent to distribute more than 50 grams of cocaine base and using a firearm during and in relation to a drug trafficking offense. In this appeal, appellant seeks review of the district court's rulings made on April 28, 1993 and April 30, 1993, admitting drug expert testimony that the person who possessed the drugs seized in this case did so with the intent to distribute them (A. at 24-27), and remarking after one juror disagreed with the announced verdict during the jury poll that the juror had, inconsistently, signed the verdict form (A. at 30-31).

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 Government's Evidence 3

ii. The Defense's Evidence 8

iii. The Jury Verdict 13

SUMMARY OF ARGUMENT 14

ARGUMENT

I. OFFICER STROUD'S OPINION TESTIMONY THAT THE PERSON WHO POSSESSED THE DRUGS SEIZED IN THIS CASE DID SO WITH THE INTENT TO DISTRIBUTE THEM VIOLATED RULE

704(b) OF THE FEDERAL RULES OF EVIDENCE. 15

A. Standard Of Review 15

B. Officer Stroud's Testimony Violated Rule 704(b)'s Prohibition On Expert Opinion Testimony That The Defendant Had The Mental State Constituting An Element Of The Crime

Charged 16

II. THE TRIAL COURT'S REMARK TO THE JURY, AFTER ONE JUROR EXPRESSED HER DISAGREEMENT WITH THE GUILTY VERDICT AND AFTER THE JURY HAD PREVIOUSLY REPORTED THAT IT WAS UNABLE TO REACH A VERDICT, WAS

COERCIVE 24

A. Standard Of Review 24

B. The Trial Judge's Gratuitous Comment -- Observing That Although Juror No. 4 Expressed Disagreement With The Guilty Verdict During The Poll, She Earlier Had Voted For Conviction By Signing The Verdict Form -- Was

Coercive 25

CONCLUSION 33

CERTIFICATE OF LENGTH 34

CERTIFICATE OF SERVICE 34

TABLE OF CASES AND AUTHORITIES

CASES

Humphries v. District of Columbia, 174 U.S. 190 (1899) 25

Jackson v. United States, 368 A.2d 1140 (D.C.App. 1977) 28

Jenkins v. United States, 380 U.S. 445 (1965) 24

Jimenez v. Myers, 12 F.3d 1474 (9th Cir. 1993),

petition for cert. filed, 62 U.S.L.W. 3794

(U.S. Apr 20, 1994) (No. 93-1821) 15, 24, 29, 30

Kesley v. United States, 47 F.2d 453 (5th Cir. 1931) 28

Lowenfield v. Phelps, 484 U.S. 231 (1988) 25, 32

United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992)

14, 16, 20

United States v. Clarke, No. 91-3313

(D.C. Cir. May 20, 1994) 16

United States v. Dorsey, 865 F.2d 1275 (D.C. Cir.),

cert. denied, 492 U.S. 924 (1989) 24, 28, 30

United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988) 14, 16

United States v. James, 764 F.2d 885 (D.C. Cir. 1985) 30

United States v. Mason, 658 F.2d 1263 (9th Cir. 1981)) 29

United States v. Mathis, 535 F.2d 1303 (D.C. Cir. 1976) 25

*United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993) passim

United States v. Olano, 113 S.Ct. 1770 (1993) 20, 24, 32, 33

United States v. Rhodes, 886 F.2d 375 (D.C. Cir. 1985) 16

United States v. Robinson, 953 F.2d 433 (8th Cir. 1992) 24

*United States v. Sea-Chua, 725 F.2d 530 (9th Cir. 1984) 15, 26

United States v. Simpson, 992 F.2d 1224 (D.C. Cir.),

cert. denied, 114 S.Ct. 286 (1993) 16

United States v. Spann, 997 F.2d 1513 (D.C. Cir. 1993) 30

* Cases chiefly relied upon are marked with an asterisk.

*United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971)

passim

*United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992)

passim

United States v. Young, 470 U.S. 1 (1985) 33

Williams v. United States, 419 F.2d 740 (D.C. Cir. 1969) 25

STATUTES AND RULES

18 U.S.C. з 924(c)(1) 2

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

22 D.C. Code 3204(a) 2

6 D.C. Code 2311(a) 2

6 D.C. Code 2361(3) 2

Fed. R. Crim. P. 31(d) 26

Fed. R. Crim. P. 52(b) 15

Fed. R. Evid. 704(b) 15, 16, 18

OTHER AUTHORITIES

Criminal Jury Instructions, District of Columbia

(4th ed. 1993) 29

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________

No. 93-3143

_________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxxxxxxxx, Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

BRIEF FOR DEFENDANT-APPELLANT

ANTHONY L. xxxxx

_____________________________________________

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.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. з 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. з 1291.

ISSUES PRESENTED

I. Whether the trial judge plainly erred by permitting Officer Stroud, the government's drug expert, to testify three times that the person who possessed the drugs seized in this case would have done so with the intent to distribute them.

II. Whether the trial judge plainly erred by singling out for comment the dissenting juror after she declared her disagreement with the verdict initially announced by the jury, thereby coercing the juror into joining the majority.

STATEMENT OF THE CASE

A. Proceedings Below

On February 25, 1993, a grand jury returned a five-count indictment charging Mr. xxxxx with possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. зз 841(a)(1) and 841(b)(1)(A)(iii), with using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. з 924(c)(1), with carrying a pistol without a license in violation of 22 D.C. Code з 3204(a), with possession of an unregistered firearm in violation of 6 D.C. Code з 2311(a), and with possession of unregistered ammunition in violation of 6 D.C. Code з 2361(3). Before trial, counts three, four and five, charging D.C. Code violations, were dismissed.

A jury trial commenced on April 26, 1993, before the Honorable Joyce Hens Green. The jury returned a verdict of guilty on April 30, 1993. On July 14, 1993, Mr. xxxxx was sentenced to 135 months imprisonment and five years supervised release. Mr. xxxxx filed a timely notice of appeal.

B. Statement Of Facts

The government proceeded on the theory that Mr. xxxxx constructively possessed a gun and drugs seized by police officers from a staircase in an alley, and argued that Mr. xxxxx possessed the drugs with the intent to distribute them. In support of the government's theory of constructive possession, one of the police officers testified that he had seen Mr. xxxxx briefly squatting by the staircase on which the drugs were found. In support of its theory that Mr. xxxxx possessed the drugs with the specific intent to distribute them, Officer David Stroud, the government's drug expert, testified that the person who possessed those drugs had the requisite intent to constitute the crime.

The defense disputed that Mr. xxxxx constructively possessed the drugs. In the defense case, a woman whose house looks out onto the alley testified that she saw a man drive into the alley, get out of his car, and urinate in the alley. She saw the police enter the alley and arrest the man. She did not see the man squat near the staircase nor carry a gun or a black pouch. In addition, Mr. xxxxx's mother, sister and fiance testified about their cash-generating family business, and testified about Mr. xxxxx's personal and business responsibilities on the day and night of his arrest.

i. The Government's Evidence

On February 2, 1993, while riding in a marked police car, three uniformed police officers of the Metropolitan Police Department -- William Witkowski, Anthony Christian and David Brock -- approached the alley at Sherman Avenue, N.W. from the 700 block of Columbia Road, N.W. (Tr. at 53-54, 79).⁽¹⁾ One of the officers, Officer William Witkowski, saw a woman who "looked like she was disturbed . . . come out of the alley real quick" and assumed that the woman was being chased (Tr. at 55). Rather than stop the woman to inquire, Witkowski drove into the alley to investigate (Tr. at 55, 80).

Facing out toward the mouth of the alley was a silver-grey Honda Accord with the driver's side door open, the lights off, and the engine running (Tr. at 55-56, 98, 129). Mr. xxxxx was standing at the car door with one arm draped over the top of the driver's door (Tr. at 56, 99). According to the officers, after the police car drove into the alley Mr. xxxxx crouched and took two steps away from the car and into the alley, at which point he had left the officers' field of vision (Tr. at 57, 92-93, 100). The officers did not see anything in Mr. xxxxx's hands and did not see him reach into any pocket (Tr. at 83, 101-102).

Officer Witkowski parked the police car nose-to-nose with the silver-grey car and got out of the police car (Tr. at 57). Three to five seconds from the time that Mr. xxxxx left the officers' sight, Officer Witkowski saw Mr. xxxxx squatting on top of a three foot high concrete pad "with both arms extended toward a step" leading down from the pad (Tr. at 57, 149). Mr. xxxxx's back was to the officers (Tr. at 58).

Although only Officer Witkowski claimed to have seen Mr. xxxxx squatting by the steps, all three officers testified that Mr. xxxxx jumped off the concrete pad (Id.). When he jumped off the pad, a cellular telephone fell out of his pocket (Id.). Mr. xxxxx continued to walk to his car, but upon reaching his car turned back and reached for the telephone that he had dropped (Tr. at 59). The officers "commanded him, 'Don't pick that up, don't pick that up, don't pick that up,'" because they did not immediately know that the object was a telephone and believed that it might have been gun (Tr. at 58-59). Mr. xxxxx kept reaching for the telephone saying, "It's nothing, It's nothing" (Id.). The officers "grabbed him and put him up against his car" (Id.). Officer Christian discovered that the object was merely a telephone (Id.).

Officer Witkowski searched the area of the concrete steps and recovered a gun⁽²⁾ and a black pouch containing 72.20 grams of crack cocaine, packaged in 11 ziplocks, on the first step down (Tr. at 60, 237). The officers agreed that anyone who entered the alley would have had access to the area of the steps (Tr. at 116). Officer Witkowski testified that he never saw Mr. xxxxx urinating in the alley (Tr. at 76).

A total of $14,726 was seized from Mr. xxxxx and his car (Tr. at 71). Approximately $3,000 was in Mr. xxxxx's pocket and the rest of the money was in a brown paper bag in the trunk of the car (Tr. at 71-72).⁽³⁾

Officer David Stroud testified as a "drug expert." In Stroud's opinion, the drugs seized would have had a wholesale value of $3,600 and a retail value of $9,620 (Tr. at 248-249). The prosecutor asked Mr. Stroud for his opinion on whether the person who possessed the 72 grams of crack cocaine harbored the intent to distribute the drugs:

Q. Detective Stroud, I'm handing you Government Exhibit No. 4. What is that, Detective Stroud?

A. This is a No. 4 copy of the form DEA-7, which in item No. 25 has an analysis of the drugs seized.

Q. Directing your attention in this case to the bottom of the DEA-7, assuming that there is 72.20 grams of crack cocaine involved in a case, how many 20's could you get for that? How many 20-bags are you referring to?

A. About 481.

Q. And what would the street value be, then, of that amount?

A. $9,620.

Q. Now, does that amount, the 72 grams with a street value of over $9,000 indicate anything to you, in your opinion, regarding the intentions of the person who possessed that amount of crack?

A. Yes, sir. Possession with intent to distribute.

Q. And why is that?

A. Well, first off, I notice that we have the 72.20 grams of cocaine base at 86 percent. I also notice it's packaged in a black pouch, and it says here 11 medium-size ziplock plastic bags with rocklike substance found to contain cocaine base. Well, now, those 11 ziplock bags round out to approximately a quarter ounce of cocaine per bag, or crack cocaine per bag. That tells me that the person who carries around crack cocaine like this is a person, he's doing what we call making drops. He's dropping off approximately 7,000 milligrams of crack cocaine to various holders, who will then take those 7,000 milligrams, cut them down into smaller pieces, probably the $20 pieces I just mentioned, and place them in the smaller ziplock plastic bags and sell those drugs on the street at $20 per bag.

* * *

Q. Detective Stroud, would somebody in possession of 72 grams of crack cocaine and a 9-millimeter that is loaded with 15 rounds, one in the chamber, 14 in the clip -- what, in your opinion, would be the intentions of that person with respect to those items?

A. Again, possession with intent to distribute. And also, getting back to the 9-millimeter, I failed to mention that the 9-millimeter is the weapon of choice amongst the drug dealers, the reason being you can crack the rounds off a lot faster than you can with a revolver. A 9-millimeter can sometimes hold up to 20 rounds, sometimes more, depending on what type of clip you get, as opposed to a revolver, which only has six shots, at the most, and then you've got to stop and reload. Also, due to the advanced firepower, it has greater stopping power, so usually, when you hit something, it goes down. And the drug dealers just prefer it to a revolver.

* * *

Q. And what is your opinion with someone, again, that has 72 grams of crack cocaine that's packaged in 11 separate ziplocks? What would they be doing with those drugs?

A. Possession with intent to distribute. And like I said, the way these drugs are packaged, the person is making drops to various holders, or maybe some customers who have big money and who can afford to buy a quarter ounce at a time.

(Tr. at 248-249, 250-251; A. at 24-27) (emphasis added).

ii. The Defense's Evidence

An eyewitness, Barbara Anne Hooks, testified about what she saw in the alley on the night of February 2, 1993.⁽⁴⁾ The rear windows of the houses on Ms. Hooks' block look out onto the alley in which Mr. xxxxx was arrested (Tr. at 363). Ms. Hooks testified that at approximately 10:00 p.m. on February 2, 1993, she was at her next-door neighbor's house playing cards when she heard a car drive into the alley and stop (Tr. at 364). Believing that it might be one of her four children, Ms. Hooks looked out the window to see who was in the car (Id.). She saw a man get out of a bluish-grey car and she saw a woman walk out of the alley onto Columbia Road, N.W. (Tr. at 364, 380). The man walked toward the rear of his car and urinated in the alley (Tr. at 364, 378, 379-380). The man did not have a gun or a black pouch in his hands, and did not put anything on the steps by the concrete pad (Tr. at 366). Indeed, she testified that the man was never even on the concrete pad (Tr. at 377). Ms. Hooks identified Mr. xxxxx as the man who she saw urinating in the alley that night, and marked a photograph of the alley on the spot on which Mr. xxxxx had urinated (Tr. at 365, 369).

While Mr. xxxxx was urinating, the police drove into the alley with their car lights flashing (Tr. at 365). When they drove into the alley, Mr. xxxxx "stepped back and was zipping up his pants, or fiddling with his pants" (Tr. at 374). Ms. Hooks continued to watch because, as she testified,

I was like, oh, what's going on? So I stood in the window for a while to see, you know, because I was scared to go out the door to go check on my kids at the time. And the guy, they handcuffed the guy and jacked the guy up and throw him on the car. And, you know, I was like, oh, lord, what's happening out here?

(Tr. at 365). She testified that at first there were two or three officers in the alley, and that a white officer searched the area of the concrete pad (Tr. at 382-383). Ms. Hooks did not recall whether Mr. xxxxx ever bent over to pick up a cellular telephone off the ground (Tr. at 382).

Mr. xxxxx's mother and sister, Khaleedah and Rolanda xxxxx, respectively, and his fiance, Bernadette Drayton, testified about Mr. xxxxx's role in the xxxxx family business. Mr. xxxxx is the oldest of the eight children (Tr. at 302). The older children of the family were involved in the family business (as well as working as employees in other businesses), while the younger children were students (Tr. at 280, 304). In the fall of 1992 and winter of 1993, Mr. xxxxx's mother, Khaleedah xxxxx, started a clothing business called Change, Inc. (Tr. at 281). The business sold tee-shirts, sweatshirts, and sweatpants to local vendors (Id.). The clothing was designed to be marketed in conjunction with the Presidential Inauguration; it carried the Presidential Emblem and the words, "I VOTED FOR CHANGE" or "AN AMERICAN REUNION" (Tr. at 290, 292, 308) (Defense Exhibits 8 and 9).

During that fall and winter, the xxxxx family sold the clothing wholesale to local vendors, retail to individuals, and at vending booths established by Mrs. xxxxx, who was licensed as a vendor (Tr. at 291). Rolanda xxxxx identified receipts and invoices reflecting $22,343.00 in sales of the clothing from December 22, 1992 through January 2, 1993 (Tr. at 292, 294) (Defense Exhibit 7).⁽⁵⁾ In the month of January, 1993, the family earned over $18,000.00 from the clothing sales (Tr. at 306). Because the business was established quickly, and for a specific and limited purpose, the xxxxxes did not accept credit cards or checks, but only cash (Tr. at 311). In addition, the xxxxxes owned an apartment building, and Mrs. xxxxx owned and operated a home improvement business, Team Ali Housing Development (Tr. at 284, 296, 306).

Anthony xxxxx was engaged in the work of the businesses every day (Tr. at 297). Because Mrs. xxxxx never learned to drive, Anthony xxxxx did most of the driving for the family's personal and business needs. For example, Mr. xxxxx ran business errands for his mother such as transporting her to meetings, delivering clothing to vendors, and picking up supplies or money (Tr. at 283, 297, 304, 313). Mr. xxxxx owned an old "Oldsmobile bomb" that broke down a few days before his arrest (Tr. at 270-271, 275, 288). His fiance, Bernadette Drayton, loaned him her Honda Accord, the car that he was driving when he was arrested (Tr. at 272).

On February 2, 1993, Mrs. xxxxx had about $15,000.00 from the clothing business that she intended to use to pay creditors (Tr. at 315). She arranged to meet Anthony xxxxx at 7:00 p.m., so that he could drive her to buy money orders to deliver to her creditors (Id.). Anthony xxxxx and Mrs. xxxxx did meet, but Mrs. xxxxx was unable to go buy the money orders because she had to respond to a call from a tenant who was having plumbing problems in an apartment building that Mrs. xxxxx managed (Tr. at 317). Mrs. xxxxx asked Anthony xxxxx to keep the money while she took a cab to the apartment building in Southeast, Washington, to handle the plumbing problem (Tr. at 317-318). They agreed that she would page⁽⁶⁾ him when she was finished with her task and at home. Mr. xxxxx met his fiance, Bernadette Drayton, at a restaurant in Silver Spring where they had dinner together with friends. Mr. xxxxx left the restaurant in Ms. Drayton's car at approximately 9:45 p.m. (Tr. at 272).

One of Mr. xxxxx's responsibilities was to transport his sister, Rolanda xxxxx, home to her apartment in New Carrollton if it was after nightfall when she was finished with her work (Tr. at 285-286). On February 2, 1993, Rolanda xxxxx spent the evening at the home of another sibling, Rhondra xxxxx. She eventually arranged for her brother to pick her up at the bus stop at the corner of Sherman Avenue and Columbia Road, N.W., to drive her home (Tr. at 287-288). Her brother never arrived (Tr. at 288).

When Mrs. xxxxx returned from taking care of the plumbing problem she paged her son, and continued to page him all evening, but got no response (Tr. at 319). Finally, at 2:00 in the morning she began calling the hospitals and police stations (Id.). At 4:00 in the morning she went to the Fourth District police station and was told that her son had been arrested (Tr. at 320). Mrs. xxxxx explained to the police officer at the station that her son had money in his possession belonging to her and requested that the money be returned to her (Tr. at 321). Her request was denied (Id.).

iii. The Jury Verdict

The jury began deliberating at 3:34 p.m. on April 29, 1993. Two hours later the jury sent a note which read, "At this time we are unable to reach a unanimous decision. At this time." (Tr. at 500). The court dismissed the jury for the evening. The jury began deliberating again at 9:06 a.m. the next morning (Tr. at 509). At 10:35 a.m. the foreman of the jury announced a verdict of guilty (Tr. at 511). However, when the jury was polled, Juror No. 4 failed to respond (Tr. at 513). The court asked,

Q. Ma'am? Did you hear the question, or you want it repeated?

A. Yes, I did.

Q. I beg your pardon?

A. I heard it.

Q. All right, ma'am.

A. I did not agree with everything they said.

(Tr. at 513-514; A. at 30-31). Without consulting with counsel, the judge instructed the jury,

All right. We'll stop at this point. Ladies and gentlemen of the jury, apparently a unanimous decision has not been reached in this case, although -- if I could see Mr. Peter's form again -- although there appear to be eleven initials signed on that form. Accordingly, we will ask the jury to return to the jury room for a continuation of your deliberations in this matter.

(Tr. at 514; A. at 31) (emphasis added). The jury began deliberating again at 10:40 a.m. and returned a verdict of guilty at 11:55 a.m (Tr. at 517).

SUMMARY OF ARGUMENT

Officer Stroud's testimony that the person who possessed the drugs seized in this case did so with the intent to distribute them violated Rule 704(b) of the Federal Rules of Evidence, which forbids expert opinion testimony that the defendant had the mental state constituting an element of the crime charged. United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993); United States v. Dunn, 846 F.2d 761, 762 (D.C. Cir. 1988). Although the testimony was not objected to, the error requires reversal because it was plain and affected substantial rights. The prosecutor asked Stroud three times about the intent of the person who possessed the drugs in this case, and Stroud three times said, "possession with intent to distribute." This violation occurred after the court's decisions in United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992) and United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992), the testimony unambiguously referred to Mr. xxxxx and to the drugs seized in this case, no other evidence supported the government's theory that Mr. xxxxx harbored the specific intent to distribute the drugs, and the trial court did not cure the error by instructing the jury that Officer Stroud had no personal knowledge of the case.

The trial judge's statement to the jury commenting upon a juror who dissented from the initial guilty verdict during the jury poll was coercive and was plainly erroneous. The comment improperly singled out the juror and had the effect of chastising her for rendering inconsistent decisions. See United States v. Sea-Chua, 725 F.2d 530 (9th Cir. 1984); United States v. Thomas, 449 F.2d 1177, 1181 (D.C. Cir. 1971). It was especially coercive because it came after the jury had already once reported itself deadlocked, and because the judge never instructed the jury that no juror should surrender his or her honest convictions simply for the purpose of rendering a verdict. Jimenez v. Myers, 12 F.3d 1474, 1478 (9th Cir. 1993), petition for cert. filed, 62 U.S.L.W. 3794 (U.S. Apr 20, 1994) (No. 93-1821); United States v. Thomas, 449 F.2d at 1183.

ARGUMENT

I. OFFICER STROUD'S OPINION TESTIMONY THAT THE PERSON WHO POSSESSED THE DRUGS SEIZED IN THIS CASE DID SO WITH THE INTENT TO DISTRIBUTE THEM VIOLATED RULE 704(b) OF THE FEDERAL RULES OF EVIDENCE.

A. Standard Of Review

Because Mr. xxxxx's trial counsel did not challenge the admission of Officer Stroud's opinion testimony that the person who possessed the 72 grams and the gun intended to distribute the drugs, the court reviews the admission of the testimony for plain error. See Fed.R.Crim.P. 52(b). "[T]o achieve reversal under the plain error standard, the appellant must show that the complained of error was plain in the sense of being obvious, and that the error substantially undermined the fairness of the trial." United States v. Simpson, 992 F.2d 1224, 1228 (D.C. Cir.), cert. denied, 114 S.Ct. 286 (1993), citing United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1985). Both criteria are met in this case.

B. Officer Stroud's Testimony Violated Rule 704(b)'s Prohibition On Expert Opinion Testimony That The Defendant Had The Mental State Constituting An Element Of The Crime Charged.

This Court has considered in several published opinions whether the admission of particular expert testimony of Officer David Stroud violated Rule 704(b) of the Federal Rules of Evidence.⁽⁷⁾ United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993); United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992); United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992). See also United States v. Clarke, No. 91-3313 (D.C. Cir. May 20, 1994) (Detective Dwight Rawls's expert testimony challenged); United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988) (Officer Coates's expert testimony challenged). Although the court has yet to find reversible error,⁽⁸⁾ the court has found the questions put to Stroud, and his answers, to be "troubling," Williams, 980 F.2d at 1466, and has repeatedly warned that "Rule 704(b) commands the expert to be silent" about the "defendant's actual mental state." Dunn, 846 F.2d at 762. See also, Mitchell, 996 F.2d at 422. Here, Stroud's testimony invaded the province of the jury and, therefore, made the trial manifestly unfair.

In Mitchell, this Court held that Rule 704(b) was violated when the trial court permitted the prosecutor to ask Stroud his opinion of the "intent of the person who was carrying those nine ziplocks" and when Stroud answered, "It was intent to distribute." Not long before, in Williams, 980 F.2d at 1466, the court held that the rule was not violated where, in response to a question about the "intentions of the person who possessed those bags," Stroud testified, "These bags were meant to be distributed at street level." As the court explained in Mitchell, what saved the testimony in Williams was the fact that Stroud's answer pointed more to the purpose for which the bags were packaged than to the mental state of the person carrying the bags, coupled with the fact that the trial judge immediately intervened "to underscore the witness' total lack of knowledge about the actual case before the jury." Mitchell, 996 F.2d at 422.

Although the prosecutor's question in Mitchell was "almost identical to that in Williams," Stroud's answer -- "[i]t was intent to distribute" -- "pointed much more directly to the mental state of 'the person who was carrying those ziplocks.'" Mitchell, 996 F.2d at 422. Thus, the court found "Officer Stroud's testimony to cross the line implicit in Williams, and to violate Rule 704(b) under our current law." Id. So too here.

In this case, the prosecutor elicited three separate times in only six pages of total testimony (Tr. at 246-251), Stroud's opinion about the intent of the person who possessed the drugs: he asked Stroud to render an opinion about the person's intent based first on the amount of the drugs, secondly on the amount of the drugs and the gun, and finally, on the amount and packaging of the drugs:

Q. Detective Stroud, I'm handing you Government Exhibit No. 4. What is that, Detective Stroud?

A. This is a No. 4 copy of the form DEA-7, which in item No. 25 has an analysis of the drugs seized.

A. About 481

Q. And what would the street value be, then, of that amount?

A. $9,620.

Q. Now, does that amount, the 72 grams with a street value of over $9,000 indicate anything to you, in your opinion, regarding the intentions of the person who possessed that amount of crack?

A. Yes, sir. Possession with intent to distribute.

Q. And why is that?

A. Well, first off, I notice that we have the 72.20 grams of cocaine base at 86 percent. I also notice it's packaged in a black pouch, and it says here 11 medium-size ziplock plastic bags with rocklike substance found to contain cocaine base. Well, now, those 11 ziplock bags round out to approximately a quarter ounce of cocaine per bag, or crack cocaine per bag. That tells me that the person who carries around crack cocaine like this is a person, he'd doing what we call making drops. He's dropping off approximately 7,000 milligrams of crack cocaine to various holders, who will then take those 7,000 milligrams, cut them down into smaller pieces, probably the $20 pieces I just mentioned, and place them in the smaller ziplock plastic bags and sell those drugs on the street at $20 per bag.

Now, the way this drug is packaged, if you were to purchase this amount of crack cocaine in bulk, it should cost you approximately $3,600. So, as you can see, by taking this amount of crack cocaine and eventually cutting it down into smaller pieces, a person stands to make at least $6,000 profit by doing it that way as opposed to the bulk rate.

(Tr. at 248-249; A. at 24-25) (emphasis added). A few questions later, the prosecutor asked Stroud what the person who possessed the 72 grams of crack and the gun would have intended to do with the drugs:

Q. And what is your opinion with someone, again, that has 72 grams of crack cocaine that's packaged in 11 separate ziplocks? What would they be doing with those drugs?

(Tr. at 250-251; A. at 26-27) (emphasis added). Thus, Officer Stroud unambiguously stated his opinion, as directly as he did in Mitchell, that the person who possessed the drugs harbored the intent to distribute, the intent constituting the crime charged. This use of the expert -- as a sworn, authoritative spokesperson for the government's theory that appellant possessed the drugs with the specific intent required to constitute the crime -- transgressed the limits of Rule 704(b).

The violation of Rule 704(b) was "plain" because, especially after the court's decisions in Boney and Williams, the error was obvious, and because it affected substantial rights. United States v. Olano, 113 S.Ct. 1770, 1777 (1993). In Mitchell, the court found error because Stroud's answer to the prosecutor's question about "the intent of the person who was carrying those ziplocks" was less ambiguous than his answer in Williams, and also because there was no judicial intervention to clarify Stroud's lack of personal knowledge. Mitchell, 966 F.2d at 422. However, the court found the error nonprejudicial and reached the conclusion that it was not "plain" for several reasons. First, because the prosecutor's question about "the person," while lacking a specific referent, inferentially pointed only to codefendant Wilson, from whom the drugs had been seized, and not to Mitchell and codefendant Bowe, who had raised the issue on appeal. Id. at 423. Second, the evidence that the defendants actually sold crack cocaine to an undercover police officer provided substantial evidence of the defendants' intent to distribute quite apart from Stroud's testimony. And third, because the trial judge twice issued jury instructions on the limits of expert testimony. Id.

In the instant case, there was only one defendant, he was charged with constructive possession of the drugs in evidence, and Stroud testified that the drugs in evidence were possessed with intent to distribute. There was no ambiguity here, no conceivable question as to the identity of "the person." Furthermore, the prosecutor's questions to Stroud, and Stroud's answers referred explicitly to the drugs listed in the DEA-7 and the drugs actually presented in this case:

Q. Detective Stroud, I'm handing you Government Exhibit No. 4. What is that, Detective Stroud?

A. This is a No. 4 copy of the form DEA-7, which in item No. 25 has an analysis of the drugs seized.

* * *

Q. Now, does that amount, the 72 grams with a street value of over $9,000 indicate anything to you, in your opinion, regarding the intentions of the person who possessed that amount of crack?

A. Yes, sir. Possession with intent to distribute.

Q. And why is that?

A. Well, first off, I notice that we have the 72.20 grams of cocaine base at 86 percent. I also notice it's packaged in a black pouch, and it says here 11 medium-size ziplock plastic bags with rocklike substance found to contain cocaine base. Well, now, those 11 ziplock bags round out to approximately a quarter ounce of cocaine per bag, or crack cocaine per bag. That tells me that the person who carries around crack cocaine like this is a person, he'd doing what we call making drops. He's dropping off approximately 7,000 milligrams of crack cocaine to various holders, who will then take those 7,000 milligrams, cut them down into smaller pieces, probably the $20 pieces I just mentioned, and place them in the smaller ziplock plastic bags and sell those drugs on the street at $20 per bag.

(Tr. at 248-249; A. at 24-25) (emphasis added). Because Mr. xxxxx was the only person who was alleged to have possessed the crack referred to by the questions and answers, Rule 704(b) was violated three times.

There was no evidence -- other than Stroud's testimony -- that Mr. xxxxx possessed the seized drugs with the intent to distribute them. In Mitchell, the defendants were not prejudiced because there was eyewitness testimony from an undercover police officer that the defendants actually had sold cocaine to her. Here, there was no such eyewitness testimony that Mr. xxxxx actually possessed or actually sold crack cocaine, and Stroud did not testify that the amount was inconsistent with personal use. Therefore, Officer Stroud's improper testimony provided the sole evidence that Mr. xxxxx possessed the drugs with the intent to distribute them.

Although the trial court did issue standard expert witness instructions,⁽⁹⁾ those instructions did not in any way suggest that an expert is unqualified to give his or her opinion on the mental state of a defendant. The instructions stated that the jury was not bound by the expert's opinion, but implied that the opinion should only be disregarded if the expert had insufficient education or experience, gave reasons for his opinion that were "not sound," or if the opinion was "outweighed by other evidence." (Tr. at 477-478). Thus, the jury was left free to believe, incorrectly, that Stroud's testimony was entitled to a rebuttable presumption of trustworthiness and that his testimony as to Mr. xxxxx's mental state was proper.

Furthermore, unlike the trial court in Williams, 980 F.2d at 1465-1466, the trial court here did not intervene to establish or to instruct the jury that Stroud had no personal knowledge of the facts. And, Stroud himself never disclaimed personal knowledge of the case. In a real sense, his "expert" testimony about the intent of the possessor of the drugs that were right before his eyes and that he explicitly referred to, had the impact of personal knowledge testimony.

Finally, the conclusion that the judge committed prejudicial, reversible error in admitting Stroud's improper testimony is mandated by the jury's initial declaration of its inability to reach a verdict in this case (Tr. at 500). Because the jury indisputably found it very difficult to agree that the evidence justified convicting Mr. xxxxx, it cannot reasonably be held that the error did not affect substantial rights. Therefore, reversal for plain error is warranted.

II. THE TRIAL COURT'S REMARK TO THE JURY, AFTER ONE JUROR EXPRESSED HER DISAGREEMENT WITH THE GUILTY VERDICT AND AFTER THE JURY HAD PREVIOUSLY REPORTED THAT IT WAS UNABLE TO REACH A VERDICT, WAS COERCIVE.

A. Standard Of Review.

Whether a trial judge's statements to the jury were coercive is reviewed de novo, Jimenez v. Myers, 12 F.3d at 1477, and is evaluated "'in its context and under all the circumstances.'" United States v. Dorsey, 865 F.2d 1275, 1277 (D.C. Cir.), cert. denied, 492 U.S. 924 (1998) (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)). See also United States v. Robinson, 953 F.2d 433 (8th Cir. 1992). Because Mr. xxxxx's counsel failed to object to the trial judge's remarks, the Court must review for plain error; whether the error was "plain" or "obvious" and whether it affected substantial rights. United States v. Olano, 113 S.Ct. at 1777.

As this Court observed twenty-five years ago, "It is basic to our system of justice that a verdict of guilty in a criminal case may stand only if freely given and unanimous." Williams v. United States, 419 F.2d 740, 746 (D.C. Cir. 1969) (en banc) (emphasis added). Statements by a trial judge that work to coerce a juror into returning a verdict against a defendant, invade the province of the jury and, thereby, deny the defendant fundamental fairness. See Lowenfield v. Phelps, 484 U.S. 231, 241 (1988) ("Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body.").

The jury poll is designed to ensure that the verdict is freely given and unanimous. "The purpose of the poll is to test the uncoerced unanimity of the verdict by requiring 'each juror to answer for himself, thus creating individual responsibility, eliminating an uncertainty as to the verdict announced by the foreman.'" United States v. Mathis, 535 F.2d 1303, 1307 (D.C. Cir. 1976) (quoting State v. Vaszorich, 98 A.2d 299, 314 (N.J.), cert. denied, 346 U.S. 900 (1953)) (emphasis in original); Humphries v. District of Columbia, 174 U.S. 190, 194 (1899) (object of poll is to "ascertain for a certainty that each of the jurors approves of the verdict as returned"); Fed.R.Crim.P. 31(d).⁽¹⁰⁾

The potential for coercion is especially grave where a juror rejects or is equivocal about a guilty verdict during the poll because that juror has then been singled out as a minority dissenter. In that circumstance, the trial judge must exercise extreme caution to avoid making the dissenting juror feel pressured to abandon his or her views to join the majority. "When efforts to secure a verdict from the jury reach the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury's province is invaded and the requirement of unanimity is diluted." United States v. Thomas, 449 F.2d at 1181. See United States v. Sea-Chua, 725 F.2d at 531-532 (conviction reversed due to coercive effect of modified Allen charge where dissenting juror would have perceived charge as directed to him since he was aware that the judge knew that he was the dissenter).

In the instant case, Juror No. 4 dissented from the guilty verdict announced by the jury foreperson. Her abjuration was not an isolated event, but came after the jury had already expressed some difficulty in reaching a unanimous verdict. On the first day of deliberations the jury reported that it was unable to reach a unanimous verdict and was instructed by the trial judge to return the next day to continue its deliberations. The next day, after deliberating for one hour and twenty-nine minutes, the jury indicated that it had reached a unanimous verdict. When asked during the jury poll whether she agreed with the guilty verdict, Juror No. 4 at first was silent. Upon the judge's prodding, ("Ma'am? Did you hear the question, or you want it repeated?), the juror told the judge that she had heard the question but confessed that she "did not agree with everything they said," apparently referring to the other jurors (Tr. at 513-514). The trial judge again instructed the jury to continue its deliberations, but not until it had singled out Juror No. 4 by asking to look at the verdict form again and observing that all of the jurors apparently had signed the form agreeing to the guilty verdict:

All right. We'll stop at this point. Ladies and gentlemen of the jury, apparently a unanimous decision has not been reached in this case, although -- if I could see Mr. Peters' form again -- although there appear to be eleven initials signed on that form. Accordingly, we will ask the jury to return to the jury room for a continuation of your deliberations in this matter.

(Tr. at 514).

Juror No. 4 only could take from the judge's gratuitous remark that the judge was aware that she alone was the cause of the failure of unanimity and that the judge was disgruntled by Juror No. 4's change of heart. Where a trial judge knows which juror is in disagreement with the majority, it is error to direct toward that juror an instruction which intimates that he or she has failed in his or her duty as a juror or has done something improper. See Jackson v. United States, 368 A.2d 1140 (D.C.App. 1977) (where it was reported that deliberating juror remembered experience of family member similar to case at bar, trial judge erred by directing instruction to that juror reminding her that she was under oath when she failed to respond on voir dire and that she took an oath swearing to render a true verdict). See generally, Kesley v. United States, 47 F.2d 453, 454 (5th Cir. 1931) ("[C]omments, not upon the evidence, but reflecting on the jurors, are not permissible.").

Not only did the judge's comment intimate that Juror No. 4 had somehow failed in her duty, but it intimated that Juror No. 4's inconsistent actions either were dishonest or were unintelligent; the juror could take no other meaning from the judge's observation that her vote during the poll was inconsistent with her written vote on the verdict form. Thus, unless Juror No. 4 was especially impervious to evaluations of her, the comment likely had a coercive effect. "No juror should be induced to agree to a verdict by a fear that a failure so to agree will be regarded by the public as reflecting upon either his intelligence, or his integrity." United States v. Thomas, 449 F.2d at 1183, (quoting Kesley v. United States, 47 F.2d at 454. See also United States v. Dorsey, 865 F.2d at 1279 (recognizing that "jury deliberations can be difficult for individual jurors"), cert. denied, 492 U.S. 924 (1989).

In addition, the judge's comments here likely had the effect of coercing Juror No. 4 to abandon her beliefs in favor of the majority view because the judge never instructed the jury that no juror should surrender honest convictions simply for the sake of returning a verdict. "It is essential [in cases where the trial judge's actions and comments place pressure on hold-out jurors] to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party." Jimenez v. Myers, 12 F.3d at 1478 (quoting United States v. Mason, 658 F.2d 1263, 1268 (9th Cir. 1981)) (alteration in original). See also Thomas, 449 F.2d at 1182 ("Communications from judge to jury are unduly constraining whenever they possess a substantial propensity for prying individual jurors loose from beliefs they honestly have.").

The anti-deadlock instruction approved by this Court in United States v. Thomas, and found in the "Redbook" instruction No. 2.91,⁽¹¹⁾ encourages jurors to consult one another with open minds but warns that no juror should abandon an honest conviction:

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Instruction 2.91. This portion of the so-called Thomas charge "guards against a coerced jury verdict . . . ." United States v. James, 764 F.2d 885, 891 (D.C. Cir. 1985). See also Jimenez v. Myers, 12 F.3d at 1479 (conviction reversed on writ of habeas corpus where judge "told the jury it should seek unanimity when there was only a single hold-out, and failed to admonish individual jurors not to surrender their individual views simply to achieve a verdict"); United States v. Spann, 997 F.2d 1513, 1519 (D.C. Cir. 1993) (Wald, J., concurring) ("The saving grace for the charge was its conscientious, repeated insistence that a juror not surrender an honest conviction. This, in the final analysis, counterbalanced other possibly coercive statements and circumstances surrounding Spann's conviction.").

Moreover, the judge's statement was particularly coercive in light of the jury's earlier note declaring itself unable to reach a unanimous verdict. See United States v. Dorsey, 865 F.2d at 1279 (in reviewing trial judge's retention of juror who disagreed with the verdict announced by the jury and asked to be relieved from deliberations, court "emphasi[zed] that the jury never reported itself deadlocked").

This Court recently considered, in United States v. Spann, 997 F.2d at 1515-1516, a trial judge's remarks to a jury on three separate occasions during the trial: during the defense's presentation of its case, after the jury reported itself deadlocked, and after the jury reported itself deadlocked a second time. First, during the defense case the judge commented to the jury about the speed and ease with which the jury might reach a verdict. The judge told the jury

. . . And right after lunch, the court will hear final arguments and you will hear final arguments from counsel. The court will then instruct you on the law to provide you a framework within which you will resolve and decide the facts in this case and the return of your verdict, which I don't think will take you too long. But, in any event, you'll have the instructions in writing after you hear them from me, along with written verdict form, which is already prepared. As I told you yesterday, it's just a simple yes-or-no answer as to whether the government has proved its case, and I think it will be comparatively easy because I've observed you very carefully. You're obviously intelligent and honest and wonderful people.

Id. at 1515-1516. This Court held that the judge's remarks were "inappropriate," but, in context, were no more than an "attempt to compliment the jurors" and were not coercive. Id. at 1516. Second, the judge commented before jury deliberations that, "I don't think it will take you very long to finish your verdict after you have heard the charge and see the exhibits," and commented after the jury reported itself deadlocked that, "We need a verdict, a decision, from all 12 of you . . . .". Id. at 1516. This Court found the judge's comments to be "inappropriate," "potentially coercive" and "probably proscribed under Thomas," but held that since the comments did not, in fact, break the deadlock since the jury again reported itself to be deadlocked, they clearly did not have a coercive effect on the jury. Thus, the comments, which were not objected to, could not have affected substantial rights. Id. at 1518.

Third, after the second note from the jury reporting itself to be deadlocked, the judge gave a very long instruction which deviated from the American Bar Association instruction that this Court approved in Thomas and that is found in Criminal Jury Instruction 2.91. However, because the judge emphatically repeated the admonition that no juror should "surrender [his or her] . . . individual judgment as to what the facts are," the instruction was not coercive. Id. at 1519.

In contrast, the judge's comments here were directed at a single juror and were not intended to compliment. Significantly, the judge here did not admonish the jurors that no juror should surrender his or her individual judgments. And, unlike in Spann, the judge's comment here did, in fact, break the logjam -- Juror No. 4 joined the majority and returned a guilty verdict.

Finally, the judge's comment here was plainly erroneous. United States v. Olano, 113 S.Ct. at 1777. The comment can have no proper purpose. Thus, it obviously was improper regardless of the judge's intent at the time. This Court must "appraise the activities complained of, not by the good intentions behind them, but in terms of their probable impact upon the jury." Thomas, 449 F.2d at 1184. The substantial likelihood that Juror No. 4 was coerced by the judge's comment to change her judgment affected substantial rights -- Mr. xxxxx's right to an uncoerced jury verdict, Lowenfield v. Phelps, 484 U.S. at 241, and seriously affected the "integrity [and] public reputation of [the] judicial proceedings." United States v. Olano, 113 S.Ct. at 1776, (quoting United States v. Young, 470 U.S. 1, 15 (1985).

CONCLUSION

For the reasons stated above, the conviction should be reversed and the case remanded for a new trial.

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, Anthony L. xxxxx, 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 25th day of July, 1994.

____________________________________

Sandra G. Roland

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. 93-3143

_________________________________________________________________

APPENDIX FOR DEFENDANT-APPELLANT

ANTHONY L. xxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

ANTHONY L. xxxxx, 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. 93-89

APPENDIX

TABLE OF CONTENTS

INDICTMENT 1

DOCKETING STATEMENT 4

JUDGMENT IN A CRIMINAL CASE 11

EXCERPTS OF TRANSCRIPT OF PROCEEDINGS HELD ON APRIL 28, 1993

EXCERPTS OF TRANSCRIPT OF PROCEEDINGS HELD ON APRIL 30, 1993

1. The numbers preceded by "Tr." refer to the consecutively paginated transcripts of the trial proceedings beginning with page one on April 26, 1993, and ending with page 526 on April 30, 1993. The numbers preceded by "A." are pages of the transcript that are reproduced in the Appendix to this brief.

2. A partial fingerprint was lifted from the gun but was insufficient for comparison (Tr. at 120-121).

3. The money was not introduced at trial because the police department prematurely turned the money over to the Drug Enforcement Agency, which moved for forfeiture of the money (Tr. at 16, 72). Mr. xxxxx's mother testified that she had never received a notice addressed to her or to her son that the government intended to forfeit the money (Tr. 321).

4. Ms. Hooks had never met Mr. xxxxx or any member of his family before the trial in this case (Tr. at 376). She was subpoenaed after an investigator who canvassed the neighborhood two days after Mr. xxxxx's arrest interviewed her and learned that she had seen the events of February 2, 1993 (Id.).

Ms. Hooks testified on cross-examination that she believed that the investigator wrote notes while he interviewed her (Tr. at 385). The investigator, Gregory Curry, testified that he interviewed Ms. Hooks on February 4, 1993, in the doorway of her home (Tr. at 426). He asked her whether she recalled an incident in the alley two days previous, asked her what she had seen, and wrote down her name and her address (Tr. at 428). He did not take notes during or subsequent to the interview (Id.).

5. Rolanda xxxxx identified only the invoices that she herself had prepared. Invoices prepared by other family members were not introduced or reflected in the dollar amount of $22,343.00 (Tr. at 295). Mrs. xxxxx identified the business's wholesale and retail price lists for the clothing (Tr. at 309) (Defense Exhibits 5 and 6).

6. Rolanda xxxxx testified that she opened an account with a pager service, Pagenet, and purchased four pagers for family members involved in her mother's company (Tr. at 281-282). Miss xxxxx identified bills from Pagenet reflecting her purchases, and identified the pager seized from Mr. xxxxx as one of the pagers she purchased (Tr. at 282).

7. Rule 704(b) reads,

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are for the trier of fact alone.

8. Stroud's testimony in Mitchell violated Rule 704(b) but was not prejudicial. Mitchell, 996 F.2d at 423.

9. Prior to Stroud's testimony, the trial court said, "I have already given you an expert witness instruction in connection with the immediate past chemist, and you can use that instruction towards Officer Stroud's testimony also." (Tr. at 245). The court repeated the instruction during the final charge (Tr. at 477-478).

10. Rule 31(d) of the Federal Rules of Criminal Procedure provides that

[w]hen a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

11. Criminal Jury Instructions, District of Columbia (4th ed. 1993).