UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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NO. xx-3080

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UNITED STATES OF AMERICA,

Appellee,

xxxxxxxxxxxxxxxxxxxxxxxx,

Appellant.

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REPLY BRIEF FOR APPELLANT

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PRELIMINARY STATEMENT

As to matters not discussed herein, Mr. xxxxxxxxxxx rests on his opening brief.

SUMMARY OF ARGUMENT

The Government concedes in its brief that the trial judge committed "obvious error" in admitting, over defense counsel's hearsay objection, Officer Bell's rebuttal testimony that William Melby, Mr. xxxxx's alibi witness, told Bell before trial that Mr. xxxxx had left his car repair shop by 5:00 on the day of the alleged crimes, rather than around 6:00, the time Melby testified to at trial. The Government contends, however, that the hearsay objection was insufficient to require limiting instructions and that Mr. xxxxx was insufficiently prejudiced to qualify for a finding of plain error. The first contention ignores precedents where this Court has reversed for hearsay violations in similar circumstances. The second contention ignores the unique importance of Melby's alibi testimony to Mr. xxxxx's defense.

ARGUMENT

ALTHOUGH THE GOVERNMENT CORRECTLY CONCEDES THAT THE JUDGE COMMITTED "OBVIOUS ERROR" IN ADMITTING THE ALIBI WITNESS'S PRIOR INCONSISTENT STATEMENT WITHOUT INSTRUCTIONS LIMITING ITS FUNCTION TO IMPEACHMENT, THE GOVERNMENT MISTAKENLY CONCLUDES THAT THE JURY'S SUBSTANTIVE USE OF THE STATEMENT WAS NOT UNFAIRLY PREJUDICIAL.

Rather inconspicuously, but still unequivocally, the Government concedes in its brief that the error discussed in Point I of Mr. xxxxx's opening brief (Brief for Appellant ("AB") at 23-27) "was error and . . . the error was obvious" (Brief for Appellee ("GB") at 29). The Government contends, however, that the error was inadequately preserved for appellate review and that the prejudice to Mr. xxxxx was insufficient to satisfy the plain error standard. Both contentions lack merit.

A. Defense counsel's "hearsay" objection to the evidence and the judge's admission of it on an incorrect ground obviated the need for a separate request for limiting instructions.

The Government's only rebuttal witness was Officer Donald Bell. The subject of his testimony was his visit to alibi witness William Melby sometime before trial. As he testified to what Melby told him about Mr. xxxxx's presence at Melby's shop on the day in question, defense counsel interrupted as follows:

Mr. Stiller [Defense Counsel]: Your Honor, I would object. That's hearsay.

The Court: Mr. Melby has already testified. Overruled, Sir.

Mr. Stiller: He testified to a conversation --

The Court: He is testifying to his conversation with Mr. Melby and Mr. Melby testified as to his conversation with Officer Bell.

Please proceed.

(Tr. 508) Bell went on to assert that Melby told him he was "quite sure" that Mr. xxxxx left his shop at about 5:00 p.m. and that Melby did not waver in that purported recollection when Bell pressed him (Tr. 509).

During the above colloquy, which the jury apparently heard, neither the prosecutor nor the judge articulated the correct rationale for admitting Bell's ensuing testimony about the statement: that it was admissible as non-hearsay because it impeached Melby's testimony for the defense that Mr. xxxxx had left around 6:00. By linking Bell's testimony about the conversation generally with Melby's, the judge intimated a rationale of reciprocity, rather than impeachment, as though the defense had "opened the door" to all testimony about the conversation by eliciting Melby's testimony about it.⁽¹⁾ But no such justification exists for admitting out-of-court statements of this type.⁽²⁾

It follows that Bell's testimony, as admitted, was indeed hearsay, as defense counsel protested. If the judge had responded to the objection by saying that the testimony was being admitted for impeachment purposes only, then it would have been incumbent on defense counsel to request limiting instructions. But as matters stood, counsel's objection, which indisputably met the requisites of Fed. R. Crim. P. 51,⁽³⁾ was correct and complete. It then became the judge's duty to render the alleged statement non-hearsay by issuing limiting instructions.

The Government wishfully suggests that Mr. xxxxx's claim on appeal is "completely different" from that encompassed by his hearsay objection below (GB at 28 n.12.). For this proposition, the Government cites United States v. Harley, 990 F.2d 1340, 1343 (D.C. Cir.), cert. denied, 114 S.Ct. 236 (1993). That case is inapposite, because there, defense counsel clearly made the wrong objection below. The case in point is Cannady v. United States, 351 F.2d 796, 797-798 (D.C. Cir. 1965), where this Court performed an analysis like that urged here, and it reversed the conviction. The defendant in Cannady testified that he had been in his hotel at the time of the crime and denied on cross-examination that he had heard Fields, his companion at the time of his arrest, tell police otherwise. Defense counsel's objection to that line of questioning as "hearsay" was overruled, and the prosecutor then presented police testimony that Fields had said he was in the hotel room during the interval in question, while the defendant was not. The Court wrote:

Such testimony concerning Fields' statement obviously did more than question appellant's credibility. It undermined his alibi. Moreover, the trial judge did not give an instruction to the jury limiting its use of the evidence to impeachment purposes. As the case was given to the jury, the reports of Fields' out of court statement could be given the same weight as sworn testimony by Fields. This clearly was improper. . . .

Id. at 798. Accord United States v. Wright, 489 F.2d 1181, 1187-1188 (D.C. Cir. 1973). In finding a hearsay rule violation, the Court in Cannady cited Bartley v. United States, 319 F.2d 717 (D.C. Cir. 1963), where there had been no objection or request for limiting instructions and plain error had been found. However, plain error review was not deemed necessary in Cannady. Obviously, the Court there found the defendant's hearsay objection sufficient to preserve for normal appellate review the inextricably intertwined error of omitting limiting instructions. The Court should do likewise here.

B. Mr. xxxxx was severely prejudiced by the judge's failure to tell the jury not to use the testimony about the alibi witness's prior statement as substantive evidence of when Mr. xxxxx left the car repair shop.

The Government on appeal suggests that "Melby's testimony was only one small part of appellant's case" (GB at 33). While the defense presented witnesses in addition to Melby, his disinterested testimony, which was the sole target of the Government's rebuttal case, served as a complete and credible alibi for the time frame of the drug sale to Robert Kennedy that was charged in Count One of the indictment. Kennedy admitted the purchase but denied that Mr. xxxxx was the seller (Tr. 419, 421). Of course, however, Kennedy, like most of Mr. xxxxx's other witnesses from the neighborhood, was not very credible. Parole Officer Covell was inherently credible, but his testimony merely corroborated part of Mr. xxxxx's alibi. Melby's testimony, therefore, was crucial to the defense. A conviction on Count One required the jury to conclude, beyond a reasonable doubt, that contrary to Melby's testimony, Mr. xxxxx was not at his shop around 6:00.

The jury was far more likely to reach this adverse conclusion if it considered Melby's alleged statement to Bell--that Mr. xxxxx had left at about 5:00--as substantive evidence rather than merely as an inconsistent statement. Given proper limiting instructions, the jury might have found Melby's credibility reduced, but still might have found that his testimony raised a reasonable doubt of Mr. xxxxx's guilt. Without such instructions, the jury was free to conclude, contrary to the hearsay rule, that Melby had been correct in his earlier statement of the departure time and incorrect at trial. The possibility that the jury did just that cannot reasonably be minimized, no matter what standard of review applies. As the Second Circuit said, citing Cannady, supra, "When a defendant's alibi is destroyed, and inadmissible hearsay is the instrument of destruction, it is beyond dispute that a substantial right of the defendant has been affected." United States v. xxxxx, 544 F.2d 110, 116 (2d Cir. 1976).

In this context, the Court should also consider the likely cumulative impact with this error of the other errors asserted on Mr. xxxxx's appeal. In particular, the prosecutor's vouching for the police officers' credibility in closing argument (AB at 36-41) made it even more probable that the jury would give improper substantive weight to Melby's prior statement, as recounted by Officer Bell, who purportedly would have been risking his career and perjury charges if he testified falsely against Mr. xxxxx.

CONCLUSION

For the reasons stated above and in Mr. xxxxx's opening brief, the judgment of conviction should be reversed and the case remanded for a new trial.

Respectfully submitted,

A. J. KRAMER

FEDERAL PUBLIC DEFENDER

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Allen E. Burns

Assistant Federal Public Defender

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE AS TO LENGTH OF BRIEF

I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).

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Allen E. Burns

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 20, 1994, two copies of the foregoing reply brief for defendant-appellant were served by United States Mail, first-class postage paid, upon the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.

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Allen E. Burns

1. The prosecutor did not object when defense counsel elicited Melby's testimony that Bell had told him that he had been watching Mr. xxxxx and that Bell said he knew "what kind of person he is" (Tr. 453-455), and it was the prosecutor who elicited Melby's denial of telling Bell that Mr. xxxxx had left his shop, in the prosecutor's words, "shortly before five" (Tr. 459).

2. Fed. R. Evid. 106 provides that in the interest of "fairness," an adverse party may require immediate admission of an omitted part of a "writing or recorded statement" introduced in evidence. As the Notes of the Advisory Committee on the 1972 Proposed Rules point out, "For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations," and it does not relate to the introduction of evidence in the adverse party's own case.

3. In pertinent part, Rule 51, which is captioned, "Exceptions Unnecessary," reads:

Exceptions to rulings . . . of the court are unnecessary and . . . it is sufficient that a party, at the time the ruling . . . is made . . ., makes known to the court . . . that party's objection to the action of the court and the grounds therefor; . . . .