UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 96-3128

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxx L. xxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT



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JURISDICTION



The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from that court's final judgment (entered October 3, 1996) having been filed on October 9, 1996, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the district court impaired appellant's Confrontation Clause right to expose witness bias when it

instructed the jury, incorrectly, that the U.S. Attorney's office had no jurisdiction to prosecute its juvenile witnesses.

II. Whether the district court violated appellant's constitutional rights to present a defense and to compulsory process when it 1) excluded defense testimony from his civil attorney and his co-defendant brother of a prior dispute between the police and the xxxxxxxs that established a retaliatory motive for what the defense contended was police manipulation of evidence; and 2) refused to continue the case long enough for Marshals to obtain the presence of a defense witness who had thrown his subpoena on the ground.

III. Whether the district court violated appellant's Confrontation Clause rights by 1) admitting into evidence the videotaped hearsay statements of two of the juvenile witnesses; and 2) allowing the prosecutor to rehabilitate one of those juveniles with prior consistent hearsay from her grand jury testimony.

IV. Whether the imposition of a special assessment greater than that authorized at the time of the alleged offenses violated the Ex Post Facto Clause.

STATUTES AND RULES

The pertinent statutes and rules are reproduced in the Addendum.



STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below.

On April 2, 1996, a federal grand jury returned an indictment charging xxxxxxx xxxxxxx and his brother, Troy xxxxxxx, with possessing with intent to distribute more than 5 grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii) (Count One), and employing a minor to commit the same drug offense, in violation of 21 U.S.C. 861(a)(1) (Count Three). The indictment charged xxxxxxx xxxxxxx alone with carrying a firearm during a drug trafficking offense (Count Two), carrying a pistol without a license (Count Four) and possession of unregistered ammunition (Count Five). (Appx:23-25). (1)

A jury trial commenced before the Honorable Joyce Hens Green on June 25, 1996. On July 8, 1996, the jury convicted both xxxxxxxs on the drug counts (Counts One and Three) but acquitted xxxxxxx xxxxxxx on all gun counts (Counts Two, Four and Five). The court sentenced xxxxxxx to 188 months in prison on Counts One and Three (concurrent), 8 years of supervised release on Count Three (with 5 years of concurrent supervised release on Count One) and a $200 special assessment. (Appx:26-29; 10/1/96:37-38). B. Statement of Facts

This case arose out of the execution of a search warrant on March 5, 1996, at xxxx West Virginia Avenue, N.E., Apartment #4. Inside the small second-floor apartment, the police found 8 people, 2.3 grams of cocaine base in 16 ziplocs on a table, 31 grams of cocaine base in 202 ziplocs hidden in a ceiling light fixture, and a pistol hidden in the cushion of a chair. Of the 8 people in the apartment, three were adults (appellant xxxxxxx xxxxxxx, co-appellant Troy xxxxxxx, and xxxxxxx Davenport) and five were juveniles (Michael xxxxxxx, Anthony xxxxxxx, Lavon xxxxxxx, Kellie xxxxxxx, and Catherine xxxxxxx). The purpose of the gathering was a party celebrating Kellie xxxxxxx's birthday. That night, Detective Tyrone xxxxxxx conducted videotaped interviews of the two female juveniles and one of the male juveniles (Michael xxxxxxx). He decided to release both females and to present all the males for charging and "work out with the U.S. Attorney's Office and the Corporation Counsel as to what to do for the next step." (6/25/96pm:51). Davenport and the three male juveniles were subsequently no-papered. Thus, although Michael xxxxxxx's fingerprints were on the clip of the gun and Lavon xxxxxxx's fingerprints were on the light fixture, and no fingerprints from either xxxxxxx were found on either the gun or the drugs, only the xxxxxxxs were prosecuted.

1. The Government's Evidence.

The government presented its case through officers involved in the search, a drug expert, the landlord, the videotaped statements of two of the juveniles (Michael xxxxxxx and Kellie xxxxxxx) and live testimony from three of the juveniles (Michael xxxxxxx, Anthony xxxxxxx and Kellie xxxxxxx). The evidence from the juveniles was critical to the government's case. Although there was independent evidence linking xxxxxxx xxxxxxx to the apartment, the inference that he exercised dominion and control over the drugs found therein and employed the minors to distribute them was extremely weak without the juveniles' testimony.

a. The Evidence Linking xxxxxxx xxxxxxx to the Apartment.

The building's landlord testified that he had rented the apartment to xxxxxxx xxxxxxx a year earlier but that he had asked all the tenants to move when he decided to sell the building. xxxxxxx was supposed to have been moving out on the day of the search. The landlord was not sure if the keys had been turned in. (6/26/96:129-33).

Seizing officer John Eisel testified that he seized an ID card in xxxxxxx's name from the table beside the door. (6/26/96:72). Eisel further testified that he saw Detective Delpo seize a black leather jacket from the couch, take the coat to the window, and call out, "xxxxxxx, is this your jacket?" to the people detained outside. When a voice answered yes, Delpo took the coat downstairs out of Eisel's sight. When Delpo returned, he gave the coat to Eisel to seize. In the pockets, Eisel found $30, a pager and a set of keys fitting the apartment door. (6/26/96:64-71, 91-97). (Although the videotape was supposed to have been turned on whenever evidence was found and seized, the recovery of the jacket and keys was omitted from the tape) (6/25/96pm:57-60; 6/26/96:50-51).

b. The Juveniles' Videotaped Hearsay Statements

Detective xxxxxxx conducted videotaped interviews of the two female juveniles and juvenile Michael xxxxxxx on the night of the arrest. The government offered those hearsay statements into evidence at the end of Detective xxxxxxx's testimony. The court overruled the xxxxxxxs' Sixth Amendment objections and admitted the videotape as GX-15, in the apparent belief that, as long as the juveniles were available to be cross-examined or called by the defense, it did not matter that their prior videotaped declarations were not subject to cross-examination. (6/26/96:40-42). (4)

After Michael xxxxxxx was cross-examined about inconsistent statements he had made on the night of his arrest (6/27/96:30-37), the court allowed the government, over hearsay objection (6/27/96:68), to play the videotape on redirect to "rehabilitate" him and to ask the witness to adopt the statements on the tape as "truthful." (6/27/96:70-76). A motion for mistrial was denied. (6/27/96:72). Later, after Kellie xxxxxxx was confronted with inconsistent statements from the videotape (6/28/96am:31-52), the government was permitted -- again, over objection -- to play the entire tape of her interview. (6/28/96am:66-73; PartialBCs:8-19).

c. The Juveniles' Live Testimony

Michael xxxxxxx (Age 17): Michael xxxxxxx's erratic testimony was a disaster for the government. The trial transcript reads as if he was suffering from a mental impairment. Indeed, he was so uncomprehending (5) that the judge finally interceded to ask if he was testifying under the influence of marijuana. (6/27/96:13). (6) See also 6/26/96:222-23 (court giving xxxxxxx instructions concerning overnight recess and return to court as if he were small child); 6/26/96:183 (court questioning whether xxxxxxx can read).

His testimony veered wildly back and forth depending on what it appeared the prosecutor wanted him to say. Although government witnesses are often eager to conform their testimony to the prosecutor's wishes, Michael xxxxxxx's malleability was particularly apparent because he was so slow to figure out what was wanted of him that he would give several "wrong" answers before figuring out the right one. See, e.g., 6/26/96:180-187. He shamelessly admitted that his testimony was influenced by his desire to save himself: He testified that on the night of his arrest a white police officer with black hair (7) had told him, and that subsequently the prosecutor had told him, that he was not being charged in exchange for his testimony against the xxxxxxxs. (6/26/96:210-11, 220, 221-22; 6/27/96:7-8). He explained that they told him how much jail time he would be facing if he were prosecuted ("[i]t was a lot") (6/26/96:220, 221), and that that had "influence[d]" him to testify in the grand jury and at trial

"[b]ecause I don't want to do time. . . I don't want to be locked up" (6/26/96:220):

Q Would you do just about anything you could to avoid that?



A Yes, if it's going to benefit me.



Q Pardon me?



A Yes, if that's going to benefit me.



Q As long as it's going to benefit you, you'd do just about anything you could is what you're saying?



A Yes.

(6/26/96:221).

xxxxxxx testified that he used to go to the raided apartment on weekends to hang out with friends and sell drugs. (6/26/96:74-75, 199). Sometimes xxxxxxx xxxxxxx would be there; sometimes not. (6/26/96:177). xxxxxxx had lived at the apartment at one time but was going to move out before the birthday party. (6/26/96:177). (xxxxxxx was impeached with his prior statement to Detective xxxxxxx that he did not know who lived in the apartment or who had keys) (6/27/96:9). xxxxxxx claimed to have seen xxxxxxx sell drugs somewhere on West Virginia Avenue at some time before the day of the search. (6/26/96:177-80). He first testified that he could not recall ever seeing xxxxxxx retrieve drugs from the ceiling light fixture but then, after looking at his grand jury testimony, claimed that he did remember that. (6/26/96:188-90). xxxxxxx never asked him to retrieve drugs from the light fixture. (6/26/96:190). (8) xxxxxxx claimed that both xxxxxxx and Troy had given him crack cocaine to sell out of the apartment, that he had been selling crack on weekends for about three weeks before the search, that he kept half the sales price, and that one weekend he made "probably about $300." (6/26/96:192-93, 199, 201-02; 6/27/96:45). As to whether the xxxxxxxs knew his age, xxxxxxx responded in typical incoherent fashion: "Not really.

. . . Not that I knew of. Probably so, yes." (6/26/96:193-94). xxxxxxx testified that there were no drugs on the table on the night of the search. (6/27/96:35). He first testified that, although he had seen a .380 pistol around the apartment before, and had picked it up that night and (for safety reasons) removed and reinserted the clip, (9) he could not remember ever seeing xxxxxxx with a weapon. (6/26/96:194-95). As the prosecutor pressed him, he changed that to "I don't think so. . . . I don't believe so," and then finally said, "No, no. I take that back," and claimed to have seen xxxxxxx holding a .380 pistol in his hand in the apartment about a month before the search. (6/26/96:195-96). (xxxxxxx was impeached with his statement on the night of the search that, although he had seen the gun in the apartment before, he did not know whose gun it was (6/27/96 Tr. 37)).

Anthony xxxxxxx (Age 14): Anthony xxxxxxx testified that he had known xxxxxxx xxxxxxx for two or three months prior to the search. (6/27/96:123). His belief, based on hearsay, was that the raided apartment was xxxxxxx's. (6/27/96:92-93). He used to go there on Fridays to smoke marijuana and play video games. (6/27/96:93, 95). He would sometimes retrieve crack from the light fixture for both xxxxxxx and Troy, or serve a crack customer who came to the door, if they asked him to. (6/27/96:96-98). He said he did this out of friendship and not for any money or other benefit. (6/27/96:98, 121, 124-25).

He testified that, although he had been under the influence of marijuana on the night of the search and could not remember everything that happened (6/27/96:127), he remembered seeing xxxxxxx sell drugs to someone and seeing him with a gun in his pants. (6/27/96:101, 104-05, 126). He identified as xxxxxxx's the jacket from which Eisel got the keys. (6/27/96:103). He claimed that his nickname "Money" was given to him by his mother and did not have anything to do with his being a drug dealer. (6/27/96:107). He admitted that xxxxxxx had once accused him of stealing something but claimed that there had been no lasting grudge between them. (6/27/96:116-17).

Kellie xxxxxxx (Age 15): Kellie xxxxxxx testified that she had known the xxxxxxxs for about a month before the search but had been friends for years with the others who were there that night. (6/28/96am:14, 17). She had been to the apartment five to seven times before. (6/28/96am:17, 29). She did not know whose apartment it was. (6/28/96am:16). xxxxxxx xxxxxxx was there "sometimes" -- most of the times she was there he was not. (6/28/96am:30, 52). xxxxxxx was not there when she arrived that night. (6/28/96am:19, 28). When she first arrived, she smoked marijuana with her friend Michael xxxxxxx and watched Troy sell crack from the hall steps. (6/28/96am:19-20). After xxxxxxx arrived, she claimed to see him reach up in the light fixture and give crack cocaine to Troy to give to a customer. (6/28/96am:21-23). She also claimed to have seen xxxxxxx take a gun out of his waistband and put it under a pillow of the couch. (6/28/96am:23-24).

xxxxxxx was seriously impeached. When confronted with the videotape of her police interview on cross-examination, xxxxxxx acknowledged that she had told the police that Michael xxxxxxx sold drugs out of the apartment, that she did not know if xxxxxxx sold drugs, and that it was Michael xxxxxxx -- not xxxxxxx -- she had seen get drugs down from the light fixture that day. (6/28/96am:36-41, 46). She agreed that "there is no boss[.] Mike's just in there dealing." (6/28/96am:41). See also 6/28/96am:52:



Q Okay, so xxxxxxx is not usually there when you go there. It's Mike or Troy?



A Yes.



Q And Mike's over there dealing?



A Yes.



She admitted that she had originally told the police that the gun had come from the table, not xxxxxxx's waistband. (6/28/96am:42, 47-48). xxxxxxx explained that she was basing her trial testimony not on what she actually remembered but on what she thought she had said when first interviewed by the police. (6/28/96am:48).

On redirect, the prosecutor used xxxxxxx's hearsay grand jury testimony in an attempt to rehabilitate her on the question of whether it had been xxxxxxx or Michael xxxxxxx she had seen retrieve drugs from the light fixture. After showing xxxxxxx her grand jury testimony to refresh her recollection about that questioning, the prosecutor began to read that prior testimony:

[Prosecutor]: Now at th[e] time [of your grand jury testimony] you were asked the questions and gave the following answers: "While you were there, did you see any narcotics, drug-related activity?"



[xxxxxxx's Counsel]: Objection.

(6/28/96am:75-76). At the bench, defense counsel objected that, once a witness's memory is refreshed, the prosecutor should pose a question about what the witness actually remembers, not ask the witness to repeat a prior hearsay statement. (10) But the court allowed the prosecutor to have xxxxxxx repeat her grand jury testimony:

Q Ms. xxxxxxx, what were you asked about in front of the grand jury?



A I was asked if there was any kind of, like, drug transactions going on that night.



Q What did you say in response to that question?



A I said yes, there was.



Q And did you say anything else specifically?



A I said -- I told them that xxxxxxx had went on the top of the lamp shade and gave Troy the drugs from up there.

(6/28/96am:76).

On recross, xxxxxxx acknowledged a second instance in which she had told Detective xxxxxxx it was Michael xxxxxxx she had seen taking drugs down from the ceiling fixture that night. (6/28/96am:81). xxxxxxx admitted that the officer's attempt to "plant xxxxxxx's name in [her] mind" may have affected her testimony:

Q And as best as you recall, that's your recollection today, right? That you have never seen xxxxxxx sell any drugs.



A Yes.



. . .



Q And you told the officer that that night, right?



A Yes.



Q [Do you remember t]his question? . . . "So the people that really sell drugs there is Mike, xxxxxxx and Troy." He keeps putting it back at you. Did he ever tell you why he kept doing that, sticking xxxxxxx's name in there?



A No.



. . .



Q Okay, and then you answered, "Yes." Do you remember that? . . .



A Yes, I remember that.



Q And that's not true, is it? You never saw xxxxxxx sell drugs.



A No.



Q . . . [Did] anybody else try to explain why the officer kept trying to put xxxxxxx's name in your mouth with respect to the sale of drugs? . . .



A No. (11)



Q Okay. So now this is your testimony, that on that night you were trying to be truthful?



A Yes.



. . .



Q From what happened only a few hours earlier?



A Yes.



Q And on two occasions you told him it was Mike that went up in the light shade?



A Yes.



. . .



Q Any you tell us now that now you remember it was xxxxxxx.



A Yes.



Q What made you change your mind?



A I mean, the stuff that I said on the tape, most the stuff that I said on the tape, I don't remember saying.

. . .



Q Do you think that the fact that the police kept trying to plant xxxxxxx's name in your mind had an effect on what you say today?



A Yes.



(6/28/96am:82-85).



2. The Court Repeatedly Gives An Erroneous Instruction About The Jurisdiction Of The U.S. Attorney's Office Suggesting That The Juveniles Had No Incentive To Help The Prosecution.



At the end of opening statements, the court inquired whether the juveniles had been immunized or whether they needed attorneys appointed for them. (6/25/96pm:20). The prosecutor informed the court that Corporation Counsel had "assured me that there's going to be no charges in this case." (6/25/96pm:21). When defense counsel objected that they had not been told of the juveniles' immunity pursuant to their Giglio (12) request, the court responded that it was Corporation Counsel, not the U.S. Attorney, who was immunizing them. (6/25/96pm:21-22). Defense counsel argued that the distinction is artificial since their respective charging decisions were based on information from the same officers. (13) (6/25/96pm:74). The court told the parties to agree on a stipulation. (6/25/96pm:75-78).

Ultimately, no stipulation could be reached because the government objected to characterizing the juveniles as having "immunity" and the defense objected to any instruction suggesting that there was no relationship between the juveniles' testimony and their immunity from prosecution. (6/26/96:158-68).

At the conclusion of Michael xxxxxxx's testimony, the court instructed as follows:

Members of the Jury, you have heard the testimony of Mr. Michael xxxxxxx, who is a juvenile, providing testimony on behalf of the Government. Juveniles are persons who are under the age of eighteen in the District of Columbia. You are instructed that it is the District of Columbia Corporation Counsel that has the authority, the jurisdiction, to decide whether to proceed with any charges against a juvenile. The United States Attorney and his Assistant United States Attorney[s], such as the Assistant United States Attorney in this case, has no such authority.



On March 6th of this year the supervisor at the District of Columbia Corporation Counsel decided not to proceed with the charges against Michael xxxxxxx based on his presence and activities at Apartment 4, 1962 West Virginia Avenue, Northeast, Washington, D.C., those activities having occurred on March 5, 1996.



A supervisor at the District of Columbia Corporation Counsel has subsequently indicated there will be no prosecution of Mr. xxxxxxx as a juvenile arising from the events of that date.



You should consider if such testimony may be colored in such a way as to further the witness' own interest for a witness who realizes that he may obtain his own freedom by incriminating another [h]as a motive to lie.



However[,] you may also consider that the witness is under the same obligation to tell the truth as is any other witness because the decisions of the District of Columbia Corporation Counsel not to proceed with charges based on activities on March 5, 1996 does not protect that witness against [prosecution] for perjury or false statements under the oath.



The testimony of such a witness should be received with caution and scrutinized with care. You should give the testimony such weight as in your judgment it is fairly entitled to receive.

(6/27/96:77-79). The court denied defense counsel's motion for a mistrial (6/27/96:83-86) and incorporated by reference the same instruction after Anthony xxxxxxx's testimony (6/27/96:143).

Defense counsel subsequently brought to the court's attention that under 18 U.S.C. 5032, the U.S. Attorney did have jurisdiction to proceed against the juveniles. Counsel asked the court to cure the error by informing the jury that the prosecutor could have proceeded against the juveniles if he had wanted to. (6/28/96am:5-12). The court refused to amend its instruction, deciding to "let it go" and "[l]et the Court of Appeals look at it." (6/28/96am:10). Over objection (7/1/96:95-97), the court then repeated the erroneous instruction a third time in the final instructions. (Instructions:11-12).

3. The Court Excludes the xxxxxxxs' Retaliation Defense.

In his opening, xxxxxxx's counsel told the jury that they would hear evidence explaining why it is "that all the evidence points to [the government's] witnesses but yet these are the men being charged":

[Y]ou're going to hear that this isn't the first contact with the xxxxxxxs and that address. You're going to hear that there was a prior contact with the police at that address, the xxxxxxxs. They went in there and they searched. They found no drugs. What did they find? Two thousand dollars. What did they do? They kept it[.] Could they tie it to drugs? No. But what did they do? They kept the money. So what happened?



xxxxxxxs hired an attorney. "Give us back our money," and attempted to try and get the money from them. This is where you end up when you challenge the authority of the police coming and taking your money. This is where you end up: lies under oath, planting evidence, manipulation, ulterior motive, they are being taught a lesson. "We come up in here and we take your $2,000, you better shut up and go away, because if you hire a lawyer and try to challenge us about it, you're going to end up in that chair."

(6/25/96pm:19). The government moved for discovery as to any pending lawsuit, but defense counsel informed the court that no lawsuit was pending and that he had no discoverable material under Rule 16. (6/26/96:6-17). The court, over objection (6/26/96:9-10), required xxxxxxx's counsel to preview for the government his plan for establishing the facts about the prior dispute through the xxxxxxxs' civil lawyer. (6/26/96:11, 13-15). The court ordered defense counsel not to raise the retaliation theory without court permission. (6/26/96:19).

After the government rested, the court heard an ex parte proffer from xxxxxxx's counsel as to the expected testimony of the attorney, Douglas Abrahams. Counsel proffered that Abrahams would testify that, as part of his effort to recover the seized money, he made telephone calls and wrote letters to the MPD Claims Division and received calls back. (ExParteBC:2-3). He also either wrote a letter to the Police Chief or spoke to the Police Chief's secretary (counsel could not remember exactly what Abrahams had told him). (ExParteBC:3). Abrahams was advised that the money would not be returned because the police believed it to be drug proceeds (although no drugs were seized) and that it was going to be used as evidence in a case (although no case was brought). (ExParteBC:3-5). Abrahams had no documentation of these communications because the xxxxxxx file was in his car when it was stolen. (6/28/96pm:57-58). He did not sue because his fees would have exceeded the $1600 at issue. (ExParteBC:6).



Although noting that the issue was "very interesting" (6/28/96pm:60), the court ultimately precluded the Abrahams testimony on grounds of hearsay and relevance. (7/1/96:3-8). The court rejected the argument that Abrahams's communications with the police were being offered not for their truth, but simply to show that they occurred and gave the police a motive to retaliate. The court also reasoned that Abrahams's testimony was not relevant unless the defense could show that the officers in this case "knew or could have known" (7/1/96:8) about the dispute over the earlier search, rejecting any inference that information about the dispute had made its way from the police personnel Abrahams dealt with to officers in this case. After counsel informed the court that Troy xxxxxxx had seen one of the officers from the first search enter the courtroom during the trial (7/1/96:9-10), the court left open the possibility that, if Troy's testimony provided a link between the two searches, the court would consider allowing xxxxxxx to reopen his case to call the attorney. (7/1/96:16-18, 20).

Troy's counsel subsequently proffered that Troy would testify that the police seized $2000 during a search on February 6, 1996 (one month before the instant search), that he and xxxxxxx hired a lawyer to recover that money, that he had seen one of the February 6 officers enter the courtroom, and that he believes that some of the officers who participated in the second search were also at the first search. (7/1/96:27). The prosecutor confirmed that Troy had seen one of the February 6 officers in court but explained that he was present because he had been subpoenaed to rebut the retaliation defense. (7/1/96:29-30). The prosecutor further stated that the searches were conducted by different units (5th District Vice on February 6 and the Narcotics and Special Investigation Division (NSID) on March 5) based on probable cause from different informants and that the officers had told him that there was no person who was involved in both searches. (7/1/96:27-28).

Crediting that hearsay, the court ruled that it would exclude Troy's proffered testimony because the linkage between the two searches was speculative. (7/1/96:30-31). Attorney Abrahams was then released (7/1/96:31) and Troy xxxxxxx testified in his defense without being permitted to mention the dispute over the prior search.

4. The Court Refuses to Grant a Continuance to Enable xxxxxxx xxxxxxx to Obtain the Presence of His Only Other Defense Witness.



Halfway through the government's case, defense counsel notified the court that a defense witness, Joseph Whitley, who lived next door to 1962 West Virginia Avenue, had thrown his subpoena on the ground. (6/27/96:4-5). Marshals attempted to bring Whitley to court but he was not home. (14) On the morning the defense case was to begin, counsel reported that as of 8:30 a.m. the Marshals were making another attempt to secure Whitley's presence and that he would be called after attorney Abrahams. (7/1/96:2-3). The court, however, then excluded Abrahams's testimony.

After a brief recess, counsel reported that he was still awaiting word on whether Whitley was on his way, and moved for a continuance, invoking appellant's "right to the subpoena power of the Court." (7/1/96:12-15). Counsel proffered that Whitley would testify that the subject building had been abandoned for nine months (except for one downstairs apartment) and was open and accessible to, and used by, drug dealers and prostitutes. (7/1/96:14). The court ruled that "[w]e've done what we can do. So, there is nothing further we can do, and we will move ahead." (7/1/96:15). Counsel attempted to hold xxxxxxx's case open pending Troy's testimony and word from the Marshals with respect to Whitley but the court insisted that xxxxxxx either call a witness that moment or rest: "I can do nothing more. No lawyer has a right to hold an entire court hostage." (7/1/96:16-19). After the court prohibited Troy from mentioning the first search, he gave his restricted testimony and the evidence concluded just after noon. (7/1/96:87).

The instruction conference and closing arguments were held after lunch. Shortly after the jury began deliberating the next morning, word came that Whitley had been picked up and appointed a lawyer. (7/2/96:7, 15-16). The court released Whitley after a lecture about the seriousness of his misconduct, chastising him that "whether your testimony would have made a difference or not, we have no way of knowing." (7/2/96:24). After a 4 day trial, the jury deliberated for 3 full days before reaching its verdict.

SUMMARY OF ARGUMENT

The errors in this case went to the heart of the verdict's reliability because they either undercut the xxxxxxxs' ability to show that the juveniles were motivated by self-interest and manipulated by the police or improperly bolstered the juveniles' current version of events.

It is impossible to overstate the significance of the juveniles' credibility in this case. There were eight people found in the apartment with some drugs in the open and others hidden away. Only two people were charged and the fingerprints found on the hiding place and on the weapon belonged to other people in the room, not the defendants. The government contended that, if the jurors believed "any one of [the juveniles] was telling the truth," they had to convict on all charges. (Closing:49, 50). The length of the deliberations and acquittal of xxxxxxx on the gun charges show that the jurors considered the case close and did not fully believe any of the juveniles. The government cannot show that the court's many constitutional errors did not affect the outcome of the trial.

First, the court's error in telling the jury that the U.S. Attorney had no jurisdiction to charge the juveniles removed from the case the most compelling reason to doubt their stories -- their self-interest in helping the U.S. Attorney convict the xxxxxxxs in order to eliminate their own very real federal exposure. Unbeknownst to the jury, the juveniles were just as vulnerable to federal charges as the xxxxxxxs and therefore had a strong incentive to implicate someone else on the government's radar screen. Instead, the juveniles were erroneously portrayed by the court as being free to tell the truth without need to curry favor because their special status as juveniles put them beyond the reach of the federal prosecutor.

Second, the trial court deprived xxxxxxx xxxxxxx of all three of his defense witnesses. Two of those witnesses (the xxxxxxxs' civil attorney and Troy xxxxxxx) would have provided a motive for the police to manipulate the juveniles into pointing the finger in the xxxxxxxs' direction. Their proffered testimony about the prior dispute between the xxxxxxxs and the MPD was neither hearsay nor too speculative to be relevant. The communications between the xxxxxxxs' attorney and MPD were proffered only to show that they occurred and gave the police a motive to retaliate, not to show that what was said by either side was true. As to whether the officers in this case knew about the dispute, the xxxxxxxs proffered sufficient evidence to create a jury question on that issue. The prejudice from the exclusion of xxxxxxx's retaliation evidence was compounded when the court allowed the government to suggest that xxxxxxx's counsel falsely promised evidence he did not have when, in fact, the only reason the witnesses did not testify is because the court improperly excluded them. xxxxxxx lost his only other witness when the court refused to continue the case long enough to enforce the Whitley subpoena, denying him compulsory process and costing him important testimony showing his lack of control over the apartment.

Third, the court violated xxxxxxx's confrontation rights by allowing the government to bolster the juveniles' testimony with their hearsay videotaped interviews and hearsay grand jury testimony. Because these prior consistent statements were made after the juveniles' motive to fabricate arose, they were not admissible to rebut a claim of recent fabrication. Rather, they served only to negate the damage to the juveniles' credibility that defense counsel had been able to inflict through effective Sixth Amendment confrontation. The government's improper rehabilitation of its key witnesses shifted the focus of the trial from the juveniles' damaged in-court testimony to their untouched (and forever untouchable) out-of-court statements. These errors individually, and certainly considered together, require a new trial.

At a minimum, this Court must remand for resentencing because the district court violated the Ex Post Facto Clause when it imposed a special assessment greater than that authorized at the time of the alleged offense conduct.



ARGUMENT

I. THE TRIAL COURT EFFECTIVELY DENIED xxxxxxx xxxxxxx HIS RIGHT TO CONFRONT WITNESSES WITH THEIR BIAS WHEN IT GAVE AN ERRONEOUS INSTRUCTION SUGGESTING THAT THE JUVENILE WITNESSES HAD NOTHING TO GAIN FROM THEIR COOPERATION WITH THE U.S. ATTORNEY'S OFFICE.



A. Standard Of Review

Whether the court's jury instruction about the jurisdiction of the U.S. Attorney's Office was wrong as a matter of law and deprived Mr. xxxxxxx of his confrontation right to have the jury consider facts suggesting witness bias are legal questions reviewed de novo. This Court must reverse for constitutional confrontation error unless the government can demonstrate that, "assuming that the damaging potential of the cross-examination were fully realized," the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

B. Because The U.S. Attorney Did Have Jurisdiction To Proceed Against The Juveniles, The Court's Instruction To The Contrary Improperly Negated The Inference Of Bias Arising From The Government's Decision To Grant Them Immunity.



The district court's instruction that "[t]he United States Attorney and his assistants, such as the [AUSA] in this case, have no . . . authority [to decide whether to proceed with charges against a juvenile]," 6/27/96:78, 143; Instructions:11, was wrong as a matter of law. Under the Federal Juvenile Delinquency Act ("FJDA"), 18 U.S.C. 5031, et seq., "a juvenile alleged to have committed an act of juvenile delinquency" may be

proceeded against in federal court if the Attorney General certifies to that court that:



(1) the juvenile court or other appropriate court of a State [including the District of Columbia, 5032] does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency,



(2) . . . , or



(3) the offense charged is a crime of violence that is a felony or an offense described in [21 U.S.C. 841], [or other sections], and that there is a substantial federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.



5032 (emphasis added).

Thus, "[t]here is no question . . . that juveniles may be prosecuted for juvenile delinquency based on violations of federal law that would constitute crimes . . . if committed by adults." United States v. xxxxxxx, 114 F.3d 228, 263 (D.C. Cir.), cert. denied, 118 S. Ct. 635 (1997). In fact, because the Attorney General has delegated the authority for making such certifications to the various U.S. Attorneys, In re Sealed Case, 131 F.3d 208, 209 (D.C. Cir. 1997); United States v. Bent, 702 F.2d 210, 213 & n.1 (11th Cir. 1983), the U.S. Attorney had unfettered discretion to prosecute these juveniles simply by certifying either that the Corporation Counsel was not assuming jurisdiction over them, see United States v. Ramapuram, 432 F. Supp. 140, 142 (D. Md. 1977) ("certification of the United States Attorney that the Baltimore County State's Attorney refused to proceed against defendant satisfies [ 5032]"), or that the crime was a 841 offense involving a substantial federal interest. (15) If so prosecuted, Anthony xxxxxxx, Kelly xxxxxxx, and Michael xxxxxxx would have been subject to "official detention" until their 21st birthdays (more than 6, 5 and 3 years, respectively). 18 U.S.C. 5037(c)(1). (16)

The court's error in telling the jury that the U.S. Attorney has no jurisdiction to prosecute juveniles was intentionally repeated in the final instructions (Instructions:11-12), even after the court was informed of 5032 and asked to cure its earlier misstatements (6/28/96am:5-12).

The erroneous instruction was highly damaging because it told the jury that the juvenile witnesses never had anything to fear from the U.S. Attorney's office and therefore had no incentive to provide information supporting its case against the xxxxxxxs when, in fact, they had clear federal exposure. Moreover, by describing the jurisdictions of the Corporation Counsel and U.S. Attorney as mutually exclusive, the court suggested there was no relationship between the juveniles' cooperation with the U.S. Attorney and Corporation Counsel's decision not to proceed against them. In fact, there was a legitimate inference that Corporation Counsel's decision was related to the juveniles' cooperation in the adult prosecutions. Michael xxxxxxx testified that Officer Matero (whose agency was presenting both the adult and juvenile cases) talked to him on the night of his arrest about avoiding jail by testifying against others. (6/26/96:26-27, 221-22; 6/27/96:7-8). And the record reflects that Corporation Counsel discussed the U.S. Attorney's plan for the juveniles with the AUSA prosecuting this case. (6/25/96pm:21 (prosecutor: "I've talked with Corporation Counsel. They've assured me that there's going to be no charges in this case")). Given the fingerprint evidence and the serious arrest records of two of the juveniles, see 6/25/96pm:71-72 (submitted under seal), it is reasonable to infer that Corporation Counsel would not have given the juveniles a walk but for their value to the United States.

Appellant was entitled to have the jury consider the inference of bias arising from the immunity given to the juvenile witnesses. See United States v. Leonard, 494 F.2d 955, 961 (D.C. Cir. 1974) ("district court committed reversible error in refusing to instruct the jury when requested, to consider with caution the testimony of [two] important government witnesses who had been granted immunity from prosecution"). Although defense counsel was permitted to ask questions of the juveniles exploring their bias, the court's instruction negated that cross-examination by wrongly suggesting that the juveniles never faced any risk of prosecution by the U.S. Attorney when in fact they had exposure to many years of "official detention" and possible adult prosecution. The jury was "'entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witnesses'] testimony which provided "a crucial link in the proof . . . of [defendant's] act."'" United States v. Anderson, 881 F.2d 1128, 1137 (D.C. Cir. 1989) (quoting Davis v. Alaska, 415 U.S. 308, 317 (1974)).

Although the court did lift some language out of the standard immunized witness instruction -- telling the jury to consider whether "such testimony" might be colored to further a witness's own interest and that testimony from "such a witness" should be received with caution (6/27/96:78; Instructions:11-12) -- this language was useless in context because the judge refused to tell the jury that the juvenile witnesses had in fact been immunized (7/1/96:95-97) (denying defense counsel's request for Redbook Instruction 2.23). (17) The Redbook instruction's reference to "such testimony" is to immunized testimony and specifically warns the jury to receive with caution "[t]he testimony of a witness to whom immunity has been granted." Redbook Instruction 2.23. Here, by contrast, the court had just finished telling the jury that the entity for whom the juveniles were testifying did not have any control over the juveniles' freedom. Since the jury was led to believe that the juveniles need not incriminate others to "obtain [their] own freedom" (6/27/96:78; Instructions:12), the court's warning that persons in that situation have a motive to lie simply did not apply. (18)

The Confrontation Clause guarantees a defendant the right "'to expose to the jury the facts from which jurors, as sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.'" Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis, 415 U.S. at 318) (emphasis added). Here, the court's instruction misled the jury as to the facts so as to negate the appropriate inference of bias.

This error requires reversal of xxxxxxx xxxxxxx's conviction because, "[a]ssuming, as [this Court] must, that the 'damaging potential of the cross-examination were fully realized,' Van Arsdall, 475 U.S. at 684, [the Court] cannot confidently say, on the record as a whole, that error in this case was harmless beyond a reasonable doubt." Anderson, 881 F.2d at 1140. The factors to consider in this analysis are:

"the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case."



Id. (quoting Van Arsdall, 475 U.S. at 684).

Here, the testimony of the three juveniles was the essential centerpiece of the government's case. Without it, it would have been extremely difficult for the government to persuade a jury that, notwithstanding the presence of seven other people in the apartment, xxxxxxx xxxxxxx had dominion and control over the drugs. See 5/8/96:12 (prosecutor: "this case is not your typical circumstantial evidence, search warrant case in that, we will have direct testimonial evidence about both men and their possession of the contraband in the case"). The circumstantial evidence against xxxxxxx was thin. Although there was evidence that he had at one time lived in the apartment, the evidence that he was controlling access to it on the night of the search was weak (the alleged seizing of keys from his jacket was suspect and, in any event, any inference of control was undercut by the evidence that he arrived at the apartment after others had already gained access). At worst, the evidence suggested that xxxxxxx shared control over the apartment with others, meaning that the drugs found therein could not be presumptively attributed to him. The evidence that the fingerprints on the contraband belonged to others who were present in the apartment, not him, made the juveniles' testimony essential. Without it, the government had nothing to support its theory that xxxxxxx was

employing the juveniles to sell drugs for him and that that is why their fingerprints, not his, were on the contraband.

A new trial is required because this Court cannot say beyond a reasonable doubt that the jury would have returned the same verdict if it had had the real facts concerning the juveniles' motivation to incriminate the xxxxxxxs. See Anderson, 881 F.2d at 1140 (reversing conviction of defendant officer saw throw money behind door of bedroom containing drugs, where court precluded cross-examination concerning dismissed murder indictment against government witness who claimed to have seen defendant "cooking" crack earlier that day).

II. THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR BY PRECLUDING xxxxxxx xxxxxxx FROM PRESENTING HIS RETALIATION DEFENSE AND BY REFUSING TO GRANT A CONTINUANCE TO SECURE THE PRESENCE OF THE ONLY DEFENSE WITNESS THE COURT DID NOT EXCLUDE.

A. Standard of Review

The trial court excluded xxxxxxx's proffered retaliation testimony on the grounds that it was hearsay and not relevant. Although evidentiary rulings are generally reviewed for abuse of discretion, "an error of law . . . is an abuse of discretion 'by definition.'" United States v. Atkins, 116 F.3d 1566, 1571 (D.C. Cir.) (quoting Koon v. United States, 116 S. Ct. 2035, 2047 (1996)), cert. denied, 118 S. Ct. 430 (1997). This Court has recently reaffirmed that "as Rule 401 defines it, [an] item is either relevant or it is not; there is no in-between." United States v. Russo, 104 F.3d 431, 434 (D.C. Cir. 1997). Similarly, the excluded evidence either met the legal definition of hearsay or it did not. See United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996) ("We review a district court's ruling to admit evidence over a hearsay objection de novo"), cert. denied, 117 S. Ct. 1455 (1997).

Because the error in excluding the retaliation evidence implicated xxxxxxx xxxxxxx's constitutional right to present a defense, this Court must reverse unless the government can establish that the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). See United States v. Johnson, 970 F.2d 907, 912 (D.C. Cir. 1992) (remanding where government could not establish that any error in excluding alibi witness met Chapman standard); Pettijohn v. Hall, 599 F.2d 476, 482 (1st Cir.)(applying Chapman standard to exclusion of exculpatory testimony), cert. denied, 444 U.S. 946 (1979).

With respect to the court's denial of a continuance to secure the appearance of defense witness Josh Whitley, this Court has held that a trial court's discretion to issue a bench warrant for a defense witness "is constrained by the defendant's Sixth Amendment right to compulsory process" and "[o]nce the defendant has alleged facts that, if true, demonstrate the necessity of the witness' testimony, the court is obligated to lend its authority in compelling the sought-after witness' testimony." United States v. Simpson, 992 F.2d 1224, 1230 (D.C. Cir.) (reversing where court refused to delay case to obtain appearance of defense witness), cert. denied, 510 U.S. 906 (1993).

B. The Trial Judge Violated xxxxxxx xxxxxxx's Right To Present A Defense By Excluding Evidence From His Civil Attorney And His Brother That Provided A Motive For

The Officers' Alleged Manipulation Of The Evidence.



In Washington v. Texas, 388 U.S. 14, 19 (1967), the Supreme Court held that the "right to present a defense," is "a fundamental element of due process of law." In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court found a due process violation where the defendant was prevented by state hearsay rules from presenting evidence that would have corroborated a third party's subsequently-repudiated confession to the crime with which the defendant was charged. Likewise here, the trial court's exclusion of appellant's evidence of police bias "denied him a trial in accord with traditional and fundamental standards of due process." Chambers, 410 U.S. at 302. See also United States v. Morgan, 581 F.2d 933, 936 (D.C. Cir. 1978) (reversing where trial court excluded defense evidence "bear[ing] on a matter that could be determinative of guilt or innocence").

xxxxxxx sought to rely on the testimony of his civil attorney, Douglas Abrahams, and his brother Troy, to establish the existence of a prior dispute between the MPD and the xxxxxxxs that provided a motive for the police to plant the keys in xxxxxxx's jacket and manipulate the juveniles to inculpate the xxxxxxxs. The trial court reasoned that Abrahams's communications with the police concerning the xxxxxxxs' demand for return of money taken during a prior search were "inextricably bound" to hearsay from his clients about that prior search. (7/1/96:7-8). But the testimony about the prior search was going to come directly from eyewitness Troy xxxxxxx. (19) Abrahams was simply going to repeat his communications with the police -- not to show that what was said by him or by the police was true (the xxxxxxxs certainly did not want the jury to consider for its truth the police claim that the money was drug proceeds), but simply to show that the communications had occurred and gave the police a motive to retaliate against the xxxxxxxs. See United States v. Wright, 783 F.2d 1091, 1098 (D.C. Cir. 1986) (substance of telephone call not hearsay if admitted to show effect on listener).

The district court also reasoned that the retaliation evidence was not relevant because it was only speculation whether the officers involved in the second search knew about the first search. The court's analysis is flawed in several respects. First, Troy's proffer of overlap between the two search teams clearly established a sufficient link -- all by itself -- to justify presentation of the retaliation theory to the jury. (20) The court erred in simply accepting the prosecutor's statement -- based on bald hearsay from the officers involved -- that no officer was involved in both searches. That was a question for the jury -- a credibility call between Troy and the officers involved. Indeed, the government had anticipated having to rebut the link with police testimony and had subpoenaed at least one officer for that purpose.

Moreover, while it is certainly possible that one hand within MPD did not know what the other hand was doing, the jury could reasonably infer that when NSID executes a search warrant in the Fifth District, it would be aware that Fifth District officers had unsuccessfully raided the same location a month earlier. This is particularly true given that Officer Matero -- the officer Michael xxxxxxx said had talked to him about testifying to avoid jail (6/26/96:221; 6/27/96:7-8) -- identified himself on the videotape as a Fifth District officer on detail to NSID. (GX-15). At a minimum, Abrahams's communications with the Police Chief's office establishes awareness of the dispute by a part of MPD that has control over both NSID and the Fifth District.

The government cannot establish that the erroneous preclusion of the xxxxxxxs' retaliation defense was harmless beyond a reasonable doubt. The evidence of the dispute over the prior search provided a crucial piece of the defense -- a motive for the alleged government misconduct. The defense theory was that the juveniles' testimony against the xxxxxxxs was in part "the product of manipulation by the police" (Instructions:22) and that the police had also manipulated the physical evidence to implicate xxxxxxx xxxxxxx by planting the keys in his jacket (6/25/96pm:16-17 (opening); Closing:25-26, 29). To entertain a reasonable doubt based on this theory, the jury had to understand that the police had a reason for manipulating the evidence against the xxxxxxxs (even if it meant having to give a free ride to those whose fingerprints were found on the contraband). Without some plausible motive, it made little sense that the police would choose to go after the xxxxxxxs as opposed to any of the other six people in the apartment. Cf. United States v. Sheffield, 992 F.2d 1164, 1169-70 (11th Cir. 1993) (reversing where court excluded defense evidence concerning custom of using Air Force Base facilities to make retirement gifts because, "[w]ithout [it], production of fishing lure molds on a U.S. Air Force Base must have seemed to the jury like the oddball project of a renegade fisherman").

Bias "is always relevant as discrediting the witness and affecting the weight of his testimony," Davis v. Alaska, 415 U.S. at 316 (citation omitted), and "may be proved by extrinsic evidence," Anderson, 881 F.2d at 1139 (citation omitted). In United States v. Gambler, 662 F.2d 834, 837-39 (D.C. Cir. 1981), this Court found error where the trial court precluded defense inquiry into a government witness's civil lawsuits against the defendant, recognizing the "hostility [that] may be inferred from such a 'quarrel'":

[A]s in any other case where the defendant seeks to establish the hostility, and therefore possible bias, of a witness for the prosecution[,] the defendant must be allowed, either through cross-examination or admission of extrinsic evidence, to set out for the jury the basic facts from which the jury may infer hostility.



Id. at 839. The Gambler court found the error harmless only because the defendant had been allowed to bring out the witness's hostility and pecuniary interest in the outcome in other ways. Id. at 840. Here, by contrast, the xxxxxxxs were not permitted to elicit by other means the police bias against them. The testimony concerning the ongoing dispute between the xxxxxxxs and MPD would have been critical exculpatory evidence as shown by the fact that defense counsel spent one-third of his opening statement discussing it.

The impact of the error was magnified when the court allowed the government, over defense objection, to improperly exploit the error in closing argument. Defense counsel asked the court to preclude the government from addressing the fact that defense counsel had not put on the evidence referenced in opening statement. The court took the position that it would "be up to the Government to decide what it does in the exercise of prudence." (7/1/96:10-12). What the government did was far from "pruden[t]," crowing in closing that the government had kept its promises, but defense counsel had not: "Mr. xxxxxxx, by contrast, told you in his opening statement that there would be evidence of a motive by the police to seek revenge against Mr. xxxxxxx xxxxxxx and Mr. Troy xxxxxxx. Ladies and gentlemen, where was that evidence? There was not one shred of evidence of any police motive for revenge." (Closings:12-13). Again in rebuttal, the government highlighted xxxxxxx's failure to produce the lawyer referenced in opening:

What was [xxxxxxx xxxxxxx's] defense in this case? Do you remember the opening statement by xxxxxxx xxxxxxx's lawyer? Strong words. Police misconduct. Lying under oath. Manipulation. Bias. A lawyer involved. Those are strong, serious allegations to make in a court of law. And, of course, it's not at all what the defense lawyer says in opening that matters, it's what the evidence in the case shows. And what is the evidence in this case about police misconduct?



(Closings:44). The government unfairly tarred the defendants with a missing witness argument when the only reason the witness was "missing" was because the court erroneously excluded him. The court's error in precluding all retaliation evidence in itself requires reversal.

C. The Court Properly Ordered The Marshals To Seize The Recalcitrant Defense Witness, But Violated xxxxxxx xxxxxxx's Right To Compulsory Process By Refusing A Brief Continuance To Allow Return Of The Witness Before, Instead Of After, The Close Of Evidence.

The court's exclusion of the retaliation witnesses left xxxxxxx with only one defense witness -- Josh Whitley. The district court's refusal to grant a short continuance in order to enforce the Whitley subpoena violated Mr. xxxxxxx's Sixth Amendment right "to have compulsory process for obtaining Witnesses in his favor." U.S. CONST. amend. VI.

As discussed supra at 23, a mere half-day's continuance would have allowed xxxxxxx to get the benefit of Whitley's testimony. As the court instructed, xxxxxxx's defense theory was that "[he] did not control access to [the subject apartment], but that there was free and open access to the apartment." (Instructions:22). Whitley's proffered testimony would have supported this theory by establishing that the building -- which the landlord admitted was being emptied for sale -- was essentially abandoned and being used by various drug dealers and prostitutes. This would have bolstered the inference that many people could have been the source of the keys allegedly found in xxxxxxx's jacket and that, even if they were xxxxxxx's, his access was far from exclusive. In addition, Whitley's testimony about prostitution would have neutralized the ugly speculation by Detective xxxxxxx in Kellie xxxxxxx's videotaped interview that the reason there were so many condom wrappers in the apartment was because the xxxxxxxs were "requir[ing] females to have sex

. . . for crack." (GX-15).

In Simpson, this Court found constitutional error and reversed where the trial judge refused "'to put this case in the deep freeze while we go out and try to find folks that are not going to contribute, to me, anything meaningful to this case.'" 992 F.2d 1229-30. The Simpson Court recognized that "there is a limit on a defendant's ability to delay trial" and that "where a request is plainly frivolous, the court may refuse to invoke the judicial process." Id. at 1230. But here, as in Simpson, appellant "made the requisite showing that [the witness's] testimony would be relevant to his defense" and his request for a continuance was far from "plainly frivolous." Id. Indeed, as in Simpson, "[the witness's] testimony, if believed by the jury, could have substantially undercut the Government's case." Id. Moreover, the court knew that any continuance would be brief since counsel had told the court that Whitley was retired and should be home. (6/27/96:5). Under these circumstances, the court committed constitutional error in refusing to grant a short continuance in order to allow xxxxxxx to call the only witness the court had not excluded.

III. THE TRIAL COURT VIOLATED xxxxxxx xxxxxxx'S CONFRONTATION RIGHTS WHEN IT ADMITTED THE VIDEOTAPED HEARSAY STATEMENTS OF TWO JUVENILES AND ALLOWED THE PROSECUTOR TO REHABILITATE ONE OF THOSE JUVENILES WITH PRIOR CONSISTENT HEARSAY FROM HER GRAND JURY TESTIMONY.



A. Standard of Review

Defense counsel objected on hearsay grounds to admission of both the videotaped interviews and Kelly xxxxxxx's grand jury testimony. See supra at 6, 7, 13 & n.10. As discussed supra at 35, an appellate court "review[s] a district court's ruling to admit evidence over a hearsay objection de novo." Jinadu, 98 F.3d at 244. "[B]ecause admission of hearsay implicates the Sixth Amendment's Confrontation Clause, errors must be harmless beyond a reasonable doubt." United States v. xxxxxxx, 49 F.3d 769, 778 (D.C. Cir.), cert. denied, 516 U.S. 926 (1995).

B. The Court Erred In Admitting The Juveniles'

Unconfronted Videotaped Interviews.



Pursuant to Fed. R. App. P. 28(i), xxxxxxx xxxxxxx adopts by reference Troy xxxxxxx's argument regarding the admission of the videotaped interviews of Michael xxxxxxx and Kellie xxxxxxx.

C. The Prosecutor's Use of Kellie xxxxxxx's Grand Jury Hearsay To Buttress Her Claim At Trial That It Was xxxxxxx xxxxxxx, Not Michael xxxxxxx, She Had Seen Retrieve Drugs From The Light Fixture Was Highly Prejudicial.



Although Kellie xxxxxxx provided only one link between xxxxxxx xxxxxxx and any drug dealing, it was a very damaging one: She claimed that, on the night of the search, she had personally seen xxxxxxx retrieve drugs from the light fixture. This testimony was highly suspect, not only because she was the only one in the small apartment who claimed to have seen that, but also because she was very effectively impeached with her prior inconsistent statement to police that it was Michael xxxxxxx who had retrieved drugs from the light fixture.

The government's elicitation from xxxxxxx of her hearsay grand jury testimony ("I told them that xxxxxxx had went on the top of the lamp shade and gave Troy the drugs from up there" (6/28/96am:76)) was a blatant violation of xxxxxxx's confrontation rights. See Young v. United States, 214 F.2d 232 (D.C. Cir. 1954) (reversing where prosecutor read his witness's unconfronted grand jury testimony into record). A prior statement by a declarant testifying at trial is not hearsay only if:

the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.



Fed. R. Evid. 801(d)(1) (emphasis added). Subsection (A) was inapplicable because the prior statement was not inconsistent with xxxxxxx's current testimony. (21) Subsection (C) was inapplicable since the prior statement was not an identification. The prosecutor and court seemed to think that prior consistent statements are admissible to rehabilitate a witness whenever that witness has been impeached with a prior inconsistent statement. But under Tome v. United States, 513 U.S. 150, 156-167 (1995), prior consistent statements are admissible under subsection (B) only if the motive to fabricate arose after the prior consistent statement. Here, xxxxxxx's motive to incriminate xxxxxxx pre-dated her grand jury testimony.

The improper use of the unconfronted grand jury statements was highly prejudicial because it negated the credibility in-roads defense counsel had made through effective Sixth Amendment confrontation. The cross-examination of xxxxxxx was a textbook example of how someone with a seemingly plausible story can be destroyed when confronted in an adversarial setting and illustrates well why the Constitution protects defendants from prosecution based on uncross-examined statements. The right to confront a witness with a prior inconsistent statement is worthless if the party proffering the witness can undo the damage simply by introducing all the post-motive-to-fabricate occasions on which the witness made uncross-examined consistent statements. See Tome, 513 U.S. at 165 (if post-motive consistent statements were allowed "the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones"). The government's use of xxxxxxx's prior consistent hearsay to bolster her damaged trial testimony was particularly prejudicial when the damaged testimony was the only link the witness made between xxxxxxx xxxxxxx and the drugs.

IV. THE $200 SPECIAL ASSESSMENT VIOLATED THE EX POST FACTO CLAUSE.



A. Standard of Review

Whether application of a post-offense statutory amendment increasing the special assessment required upon a criminal conviction violates the Ex Post Facto Clause is a question of law reviewed de novo. Because defense counsel did not object to retroactive imposition of the special assessment amendment, this Court reviews for "plain error."

B. The Court Relied On A Post-Offense Statutory Amendment To Impose A Penalty Greater Than That In Effect At The Time Of The Alleged Offense.



The Presentence Investigation Report stated that "[a] special assessment of $50 is mandatory on each count, for a total of $100, pursuant to 18 U.S.C. 3013(a)." (PSR at 12). However, the district court imposed "a special assessment of $100 per count; that is, a total of $200 mandatory assessment." (10/1/96:38; Appx:26).



The additional assessment was apparently based on the then-recently enacted Mandatory Victims Restitution Act of 1996 ("MVRA"), which amended 3013 so as to double the special assessment for felonies from $50 to $100. Pub. L. No. 104-132, Title II, 210, 110 Stat. 1214, 1240. Section 211 of the MVRA provided: "The amendments made by this subtitle shall, to the extent constitutionally permissible, be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of this Act [Apr. 24, 1996]." 18 U.S.C. 2248 (statutory notes) (emphasis added).

Imposition of the amended special assessment in this case, where the alleged offense conduct occurred prior to the date of the amendment, was plainly impermissible under the Ex Post Facto Clause because it was a retroactive enhancement of the penalty for criminal conduct. See United States v. Gaviria, 116 F.3d 1498, 1513 (D.C. Cir. 1997) ("'any statute . . . which makes more burdensome the punishment for a crime, after its commission . . . is prohibited as ex post facto'") (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)), cert. denied, 118 S. Ct. 865 (1998).

This Court recently held "the Ex Post Facto Clause prohibits the application of [the MVRA's restitution provisions]" to a defendant who was convicted after April 24, 1996, but whose offense conduct pre-dated that date. United States v. Rezaq, 134 F.3d 1121, 1141 n.13 (D.C. Cir. 1998). Just as it would violate the Ex Post Facto Clause to impose any special assessment on conduct pre-dating the original enactment of 3013, United States v. Miller, 900 F.2d 919, 926 (6th Cir. 1990) (imposition of special assessment on mail fraud conviction would be ex post facto punishment if letter mailed before effective date of

3013), it plainly violated the Ex Post Facto Clause to impose the increased special assessment on conduct pre-dating enactment of the MVRA's amendment to 3013.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxxx xxxxxxx must be vacated and the case remanded to the district court for a new trial. At a minimum, the Court must remand for resentencing.



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 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 mail and one copy of the Joint Appendix for Appellants has been delivered by hand to John R. Fisher, Esq., Chief, Appellate Division, Office of U.S. Attorney, Room 10-435, 555 Fourth Street, N.W., Washington, D.C., 20001, this 17th day of April, 1998.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender


1. "Appx:__" refers to pages of Appellants' Appendix. Transcript pages are cited by date (i.e., 6/26/96:__) or description. "PartialBCs:__" refers to the transcripts of nine partially inaudible bench conferences excerpted from 6/28/96am:34-84. "ExParteBC:__" refers to the ex parte bench conference excerpted from 6/28/96pm:60. "Closing:__" refers to the closing arguments excerpted from 7/1/96:119. "Instructions:__" refers to the jury instructions excerpted from 7/2/96:7.

2. Parts of the search were videotaped and the tape was admitted as Government Exhibit 1 ("GX-1"). (6/25/96pm:35-43).

3. When the fingerprint examiner could not match the xxxxxxxs based on their standard fingerprint cards, she requested and obtained prints of their extreme fingertips and palms but still found no match with any of the ten latent prints lifted from the gun, drugs, and light fixture. After the defense successfully moved for comparison with the prints of the other four males who were arrested, the examiner made two matches. The examiner requested the extreme tips and palm prints of those four individuals to complete her examination but those were never provided. (6/26/96:145-52).

4. Because one of the juveniles, Catherine xxxxxxx, was pregnant and unavailable (6/26/96:42), her interview was not played during trial and was redacted from the tape that went to the jury room.

5. For example, a grand juror had asked how xxxxxxx could testify that xxxxxxx Davenport arrived at the apartment 4-5 hours before he did if he had not been there. When asked again at trial to explain this apparent clairvoyance, xxxxxxx responded by changing the estimate to 1-2 hours. (6/27/96:20-22). See also, e.g., 6/27/96:62-63.

6. He admitted that he had been smoking marijuana on the night of the search and was still under its effects during the videotaped interview. (6/27/96:8-9, 12-13).

7. Michael xxxxxxx confirmed that this officer was the one who participated in the interview with Detective xxxxxxx (6/27/96:7-8) -- Officer Shea Matero (6/26/96:26-27; GX-15 (videotape)).

8. xxxxxxx first testified that he could not recall anybody ever asking him to retrieve drugs from the light fixture but, after being shown his grand jury testimony again, claimed to recall retrieving drugs for Troy xxxxxxx, who could not reach the light fixture. (6/26/96:190-91).

9. When originally interviewed, xxxxxxx had denied even seeing any gun that night (6/27/96:30-35) but, when the fingerprint evidence came back, he had to admit he had touched it. For his bizarre account of why he touched it, see 6/26/96:211-15 (Defense Counsel: "So, are we to understand that you're in this room, you didn't realize that anybody else was in there with you, you took the clip and then you looked around and said, oh, I'm here alone, put it back in and put it in the couch, is that what happened?" xxxxxxx: "Yes. Because I'm the only one in there and I know that, you know, so I'm not going to mess with the gun, so I can't harm myself. Had anybody been in there, I would have got the clip out.").

10. The court reporter originally noted this bench conference, and eight others, as "off the record" (6/28/96am:76) because an audio problem prevented her from adequately recording the colloquy (Appx:44). Undersigned counsel had the court reporter prepare a transcript of the audible passages (PartialBCs:1-21) and initiated the procedure for reconstructing the inaudible passages pursuant to Fed. R. App. P. 10(c). Based on trial counsel's recollections, undersigned counsel submitted a proposed statement of proceedings (Appx:36-44) that described this bench conference (No. 8) as just stated (Appx:41-42). The government responded with a counterstatement that did not object to any of the defense summaries, but simply made minor corrections to the partial transcript (Appx:45-48). Even when the district court gave the government a second opportunity to object, the government did not dispute that xxxxxxx's counsel had raised a hearsay objection to the prosecutor's attempt to put in Kellie xxxxxxx's prior grand jury testimony (Appx:51) ("The government agrees with appellants' characterization of this bench conference"). Nevertheless, the district court refused to adopt defense counsel's reconstruction of the inaudible passages, finding instead that the partial transcripts, along with the government's small additions, "substantially reflect what occurred during those bench conferences" (Appx:53) -- even though there were 12 inaudible passages in this particular bench conference and the only words of objecting counsel captured by the court reporter were "I'm not objecting (inaudible) but (inaudible)" and "(Inaudible)." (PartialBCs:20). Under these circumstances, it would violate xxxxxxx xxxxxxx's right to a full transcription of the proceedings to fail to credit him with preservation of this objection. See United States v. Carrazana, 70 F.3d 1339, 1342-44 (D.C. Cir. 1995), cert. denied, 517 U.S. 1147 (1996). This is particularly so given that xxxxxxx was excluded from the bench conferences even after protesting that "we can't even hear the objections being made. . . . When he objects to something you all go up there and we're being closed out." (6/26/96:44).

11. See also 6/28/96am:49-51; GX-15 (xxxxxxx acknowledging that although she had never seen xxxxxxx sell or "serve" drugs, she had answered yes when Detective xxxxxxx had asked her the leading question, "So you saw xxxxxxx and Troy serve people today?").

12. Giglio v. United States, 405 U.S. 150 (1972).

13. Detective xxxxxxx explained his decision to release the females and present the males for charging as follows: "I felt there was enough information being filtered in that we could make that decision that night and work out with the U.S. Attorney's Office and the Corporation Counsel as to what to do for the next step." (6/25/96pm:51).

14. The court thought the Marshals went out twice but it appears that the second report (concerning efforts made the morning of Friday June 28 (6/28/96pm:36-37)) may have simply been adding details to the brief report of an unsuccessful attempt received that same morning (6/28/96am:3-4).

15. This Court recently held that a prosecutor's certification of a "substantial federal interest" is not subject to judicial review. In re Sealed Case, 131 F.3d at 212-15. Nor may a court review a prosecutor's evaluation whether there is an appropriate state court with jurisdiction over the juvenile. United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857 (1975).

16. "Moreover, the FJDA authorizes certain juveniles to be transferred to adult status where they may be tried for [federal] crimes in adult court." xxxxxxx, 114 F.3d at 263. Because Michael xxxxxxx could have been charged with committing a 841 violation after his 15th birthday, the district court had authority to transfer him for adult prosecution. 5032; In re Sealed Case, 893 F.2d 363, 364 (D.C. Cir. 1990).

17. The government insisted that the juveniles had not been formally "immunized." (6/26/96pm:159; 7/1/96:96-97). The Redbook instruction on immunized witnesses, however, specifically eliminates any "distinction between statutory and informal immunity." Comment to Redbook Instruction 2.23 (4th ed. 1993).

18. Because Kellie xxxxxxx's name was not included in the instruction, as to her, the defense was denied entirely its request for an immunized witness instruction. There can therefore be no argument that the jury might have understood that she had a personal interest in incriminating the xxxxxxxs.

19. To the extent Abrahams would have mentioned the prior search and seizure it was only as background to explain why the demand for money was being made.

20. Troy's ability to recognize officers from the first search was corroborated by the prosecutor's confirmation that such an officer had indeed been in the courtroom during the trial.

21. Even after being impeached with her prior inconsistent statement, xxxxxxx maintained that "it wasn't Mike" who had retrieved the drugs and acknowledged that her testimony now was "changed" from what she had originally told the police. (6/28/96am:40-41).