UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 00-3059
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx D. xxxxxxx, Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR APPELLANT
A.J. KRAMER
Federal Public Defender
NEIL H. JAFFEE
Assistant Federal Public Defender
On Behalf of Appellant xxxxxxx xxxxxxx
625 Indiana Avenue, NW
Suite 550
Washington, DC 20004
(202) 208-7500
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The District Court Erred In Excluding Under Fed. R. Evid. 804(b)(3)
A Statement Against the Declarant’s Penal Interest That Exculpated
Mr. xxxxxxx Where Corroborating Circumstances Clearly Indicated
the Trustworthiness of the Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
A. The Circumstances Concerning the Making of xxxxxxx’s
Statement Clearly Indicated Its Trustworthiness . . . . . . . . . . . . . . . . . 4
B. Other Record Evidence Corroborated xxxxxxx’s Statement . . . . . . . . .12
C. The District Court’s Error In Excluding xxxxxxx’s
Statement Was Not Harmless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
CERTIFICATE OF LENGTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TABLE OF AUTHORITIES
CASES
*Chambers v. Mississippi, 410 U.S. 284 (1973) . . . . . . . . . . . . . . . . . . . . . . . .15, 16
Kotteakos v. United States, 328 U.S. 750 (1946). . . . . . . . . . . . . . . . . . . . . . . . . .20
O'Neal v. McAninch, 513 U.S. 432 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
United States v. Arthur, 949 F.2d 211 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . 6
* United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977) . . . . . . . . . . . . . . . 5, 17
United States v. Delgado, 903 F.2d 1495 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . 16
United States v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . passim
United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993) . . . . . . . . . . . . . . . . 6, 7, 14
*United States v. Lopez, 777 F.2d 543 (10th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . .5
United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995) . . . . . . . . . . . . . . . . . . . .17
United States v. Mock, 640 F.2d 629 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . .12
United States v. Noel, 938 F.2d 685 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . .8
United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . . .19
United States v. Price, 134 F.3d 340 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . 6, 7, 14
*United States v. Slaughter, 891 F.2d 691 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . .5
United States v. Smith, 77 F.3d 511 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . .20
United States v. Thomas, 571 F. 2d 285 (5th Cir. 1978) . . . . . . . . . . . . . . . . . 6
*United States v. Wilson, 160 F. 3d 732 (D.C. Cir. 1998) . . . . . . . . . . . 3, 8, 16
*Authorities principally relied upon are marked with an asterisk.
OTHER AUTHORITIES
Fed. R. Evid. 804(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim
5 Weinstein & Berger, Weinstein’s Evidence, § 804.06[5][c] (2000). . . . . . . . . . . .12
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 00-3059
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxx D. xxxxxxx, Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR APPELLANT
SUMMARY OF ARGUMENT
The government argues that the statement against penal interest made by
xxxxxxx’s brother (xxxxxxx) that he, and not xxxxxxx, possessed the gun recovered by
the police, was inadmissible under Fed. R. Evid. 804(b)(3) because corroborating
circumstances did not clearly indicate the trustworthiness of the statement.
Contrary to the government’s contentions, the circumstances concerning the
making of the statement did indicate its trustworthiness as xxxxxxx made the
statement to defense counsel and her investigator after counsel had advised him
that the statement could subject him to criminal prosecution. These circumstances
indicate that xxxxxxx’s confession after being advised of his rights was reliable.
The government also contends that there was no other evidence in the
record that corroborated xxxxxxx’s statement. In making this argument, the
government fails to recognize that the police testimony indicating that xxxxxxx was
in the same location as xxxxxxx when the officers observed the gun corroborates, at
least in part, xxxxxxx’s statement that he had the gun. Moreover, the testimony of
a defense witness describing xxxxxxx’s movements inside the apartment building
was consistent with portions of the police testimony describing the movements of
the man with the gun. Viewed in the context of xxxxxxx’s misidentification defense,
there was record evidence corroborating xxxxxxx’s statement.
Under the totality of the circumstances concerning the making of the
statement and other evidence in the record, there was sufficient corroborating
evidence to clearly indicate the trustworthiness of xxxxxxx’s statement.
Accordingly, the district court abused its discretion in excluding the statement.
Because the exclusion of the statement violated Rule 804(b)(3) and xxxxxxx’s due
process right to present a defense, xxxxxxx’s conviction cannot stand.
ARGUMENT
THE DISTRICT COURT ERRED IN EXCLUDING UNDER FED. R. EVID. 804(b)(3) A
STATEMENT AGAINST THE DECLARANT’S PENAL INTEREST THAT EXCULPATED
MR. xxxxxxx WHERE CORROBORATING CIRCUMSTANCES CLEARLY INDICATED
THE TRUSTWORTHINESS OF THE STATEMENT
The government contends that the district court properly excluded a
statement made to defense counsel and her investigator by Mr. xxxxxxx’s brother,
Ronnie xxxxxxx – indicating that xxxxxxx had the gun later recovered by the police
– because the evidence did not clearly indicate the trustworthiness of the
statement, as required by Fed. R. Evid. 804(b)(3).
In arguing that xxxxxxx’s
statement lacked sufficient corroboration, the government also questions whether
xxxxxxx also failed to satisfy some of Rule 804(b)(3)’s other requirements. (Gov. Br.
10 n.5) . Although the government agrees that xxxxxxx was unavailable to testify
and that xxxxxxx’s statement “arguably incriminated him,” the government
speculates that xxxxxxx could have faced “significantly less serious” charges than
the felon-in-possession charges brought against xxxxxxx in this case, thereby giving
xxxxxxx a reason to lie for xxxxxxx. (Id.) The prosecutor did not make this argument
in the district court and there is nothing in the record to indicate that the
government sought to obtain xxxxxxx’s criminal record, if any, to support an
argument that xxxxxxx had a motive to fabricate an admission to help his brother
because xxxxxxx faced less serious charges. In any event, the district court found
that there was “no question” that xxxxxxx’s statement was against his penal
interest (1/6/00 Tr. 21), and the government did not dispute that issue below and
apparently does not challenge the court’s finding on appeal.
Moreover, the government suggests that xxxxxxx’s confession that he “had
the gun” did not “necessarily exculpate” xxxxxxx because xxxxxxx was with him in the
apartment building while xxxxxxx was armed with the gun. (Gov. Br. 10 n.5) Not
surprisingly, the government cites no authority for the proposition that xxxxxxx’s
mere presence with his brother - - without any evidence of joint possession or
aiding and abetting - - was somehow sufficient to support the gun possessory
charges against xxxxxxx. In sum, the only real issue on appeal is whether the
circumstances concerning the making of xxxxxxx’s statement and the existence of
evidence in the record corroborating the statement clearly indicated the
statement’s trustworthiness. Because there were sufficient corroborating
circumstances, the district court abused its discretion in excluding xxxxxxx’s
statement.
A. The Circumstances Concerning the Making of xxxxxxx’s Statement
Clearly Indicated Its Trustworthiness
The government agrees that under this circuit’s case law, a district court
must consider the circumstances surrounding the making of a statement against
penal interest, as well as other corroborating evidence in the record, in determining
the statement’s admissibility under Rule 804(b)(3). (Gov. Br. 11-13) Moreover,
the government acknowledges that the district court in this case focused only on
the question of whether there was evidence in the record that corroborated the
substance of xxxxxxx’s confession. (Gov. Br. 11) However, the government
contends that the court’s failure to consider the circumstances regarding the
making of xxxxxxx’s statement was not error because those circumstances did not
clearly indicate the statement’s trustworthiness. (Gov. Br. 11-17) The
government’s position is not supported by the applicable case law.
Reviewing various decisions of this Court and others, the government
concludes that “the statements that are often considered the most reliable are
those made to lay witnesses shortly after the commission of the crime without any
knowledge that the statements may be used later to exculpate anyone else.”
(Gov. Br. 13) Although courts do consider these factors in assessing the
trustworthiness of Rule 804(b)(3) statements, these factors are not the exclusive
ones relied upon by courts and are not necessarily determinative in any particular
case. Instead, in determining whether a statement against penal interest is
sufficiently trustworthy to be admitted into evidence, courts consider the totality
of the particular facts and circumstances surrounding the making of the statement.
For example, in United States v. Benveniste, 564 F.2d 335, 339-42 (9th Cir.
1977), the court of appeals held that statements against penal interest made by an
individual to the defendant’s investigator should have been admitted under Rule
804(b)(3). See also United States v. Slaughter, 891 F.2d 691, 696-97 (9th Cir.
1989)(reversing district court’s exclusion of statements against penal interest
made to defense investigator on two occasions). Similarly, in United States v.
Lopez, 777 F.2d 543-54 (10th Cir. 1985), the court of appeals reversed the district
court’s refusal to admit a statement against penal interest made to the co-defendant’s attorney. Other courts also have admitted under Rule 804(b)(3)
statements that were not made to lay witnesses without knowledge that the
statements could be used later to exculpate another suspect. See, e.g., United
States v. Price, 134 F.3d 340, 345-48 (6th Cir. 1998)(holding that accomplice’s
post-arrest statement against penal interest made to police after Miranda warnings
was sufficiently corroborated by circumstances clearly indicating statement’s
trustworthiness); United States v. Garcia, 986 F.2d 1135, 1139-41 (7th Cir.
1993)(holding that corroborating circumstances clearly indicated trustworthiness
of post-arrest statements against penal interest where statement was made after
declarant was advised of Miranda rights and there was no evidence statement was
made in order to curry favor with authorities; “[t]he district judge does not need to
be completely convinced that exculpatory statements are true prior to their
admission. Such a high burden was not intended by the corroboration requirement
of 804(b)(3).”); United States v. Arthur, 949 F.2d 211, 216-17 (6th Cir.
1991)(holding that declarant’s post-arrest statement to FBI that he committed
bank robbery for which defendant was on trial was admissible under Rule
804(b)(3)); United States v. Thomas, 571 F.2d 285, 289-90 (5th Cir.
1978)(holding that co-defendant’s statement exculpating defendant and made at
close of preliminary hearing was admissible statement against penal interest).
xxxxxxx made his statement against penal interest to defense counsel and
her investigator. Contrary to the government’s argument, the fact that the
statement was made to the defendant’s representatives does not render the
statement untrustworthy. Although the statement that was excluded in Edelin
was made to a defense investigator, defense counsel was not present at the time.
992 F.2d at 1241-42. In fact, the declarant in Edelin had made a different
statement to defense counsel five days before he gave the written exculpatory
statement to the investigator. Id. at 1241. Moreover, in contrast to the record in
the instant case, there is no indication in the Edelin opinion that the declarant had
been advised that his incriminating statement could be used to prosecute him.
Defense counsel’s advice to xxxxxxx that his statement could subject him to
criminal prosecution (1/6/00 Tr. 15-16) is analogous to the post-Miranda warnings
statements found to be trustworthy in Price and Garcia.
The government attempts to discredit defense counsel’s warnings to xxxxxxx
on the grounds that counsel told him that “she found it unlikely that he would be
prosecuted.” (Gov. Br. 16) This contention misstates the record. xxxxxxx’s attorney
did not advise xxxxxxx that his potential prosecution was “unlikely.” Instead,
counsel represented to the district court as part of her proffer that she had
explained to xxxxxxx,
that he had a Fifth Amendment privilege, and that if, in fact, he
took the witness stand that he would be incriminating himself.
He would be subjecting himself to criminal prosecution, that
anything he said could be used against him, not only in this
case but in his pending matter. Further, that [counsel] thought
that the likelihood of that happening was not great, but that he
needed to know that it was certainly a possibility.
(1/6/00 Tr. 15-16)
Contrary to the government’s assertion, counsel’s advice, taken as a whole,
cannot fairly be construed as informing xxxxxxx that it was “unlikely” that he
would be prosecuted. In fact, the district judge employed some of the same
language used by defense counsel when the court advised xxxxxxx of his Fifth
Amendment privilege to refuse to testify:
It is possible [the testimony] could be used against you
in your pending case, although I don’t even know what
the charges are, so I have no idea whether it could be or
not, but it could be.
And it is certainly possible that depending on what
testimony you give today, that the government could
thereafter choose to prosecute you on the basis of any
testimony that you give today.
(1/5/00 Tr. 154-55)(emphasis added). Thus, the court essentially gave xxxxxxx the
same warnings as defense counsel had given him. Accordingly, counsel’s advice
to xxxxxxx was not deficient and supports the trustworthiness of xxxxxxx’s
confession.
The government also attacks the trustworthiness of xxxxxxx’s statement on
the basis that his “close familial relationship” with xxxxxxx gave xxxxxxx a motive to
lie and because the statement was made, at least in part, in the courthouse. (Gov.
Br. 15) Although this Court recognized in Edelin that the relationship between the
declarant and the defendant is one factor to consider in assessing the
trustworthiness of a statement against penal interest, that factor alone is not
determinative and the district court must consider the “totality of circumstances”
concerning the trustworthiness of the statement. Wilson, 160 F.3d at 741. For
example, in the case cited by the government (Gov. Br. 15), United States v. Noel,
938 F.2d 685, 688-89 (6th Cir. 1991), the district court properly excluded the
declarant’s post-arrest statement not only because of the existence of a
“relationship” between the declarant and the defendant, but also because the
declarant had not repeated her statement since the time of her arrest and because
the declarant gave a contrary statement at the time she entered a guilty plea in the
case. Moreover, in contrast to the instant case, the district court in Noel had
noted that the declarant had a motive to lie to exculpate the defendant, “whom
she may have had reason to fear.” Id. at 688-89.
As to the timing of xxxxxxx’s statement, the record does not indicate when
it was made but, as the government notes (Gov. Br. 15), defense counsel
represented that “[p]art of the statement” was made in the courthouse. (1/6/00
Tr. 10) Citing Edelin, where the statement to the defense investigator was made
on the day of trial, the government suggests that the timing of xxxxxxx’s statement
casts further doubt on its trustworthiness. (Gov. Br. 15-16) In contrast to the
record in Edelin, xxxxxxx’s counsel indicated that she had spoken to xxxxxxx on
“several occasions.” (1/5/00 Tr. 151) Since xxxxxxx was at the courthouse and
was prepared to testify for the defense, it is reasonable to infer that he had made
his incriminating statement that exculpated xxxxxxx to defense counsel prior to the
day of trial. Moreover, unlike the declarant’s statement against penal interest in
Edelin, xxxxxxx’s statement was made after he was warned that he could be
prosecuted.
The government claims that xxxxxxx “assert[ed]” in his opening brief that
xxxxxxx had consulted with his own lawyer before xxxxxxx made the statement
against penal interest. (Gov. Br. 16 n.10) Although xxxxxxx’s brief did invoke
xxxxxxx’s consultation with his lawyer as evidence supporting the trustworthiness
of his statement (Def. Br. 16), xxxxxxx agrees that the record does not indicate
whether xxxxxxx consulted with a lawyer before he made his statement to xxxxxxx’s
attorney. However, the record is clear that after discussing the matter with his
own lawyer, xxxxxxx was prepared to testify, consistent with his statement to
xxxxxxx’s attorney, that he (xxxxxxx) possessed the gun. (1/5/00 Tr. 152)
The government notes that the district court considered in assessing the
trustworthiness of xxxxxxx’s statement the fact that xxxxxxx had changed his mind
about testifying after the court advised him of his Fifth Amendment rights. (Gov.
Br. 16) As argued in xxxxxxx’s opening brief (Def. Br. 17), xxxxxxx’s assertion of the
privilege after the district court repeated his Fifth Amendment warnings indicates
the trustworthiness of his statement because his assertion of his right against self-incrimination was necessary only if his truthful testimony would have been
inculpatory. In a footnote, the government asserts that in light of defense
counsel’s advice to xxxxxxx that the likelihood of prosecution was “not great,” and
xxxxxxx’s refusal to testify after the district court repeated the Fifth Amendment
warnings, “it is much more plausible to infer that he had not fully understood the
consequences of his statement when he made it to defense counsel, thereby
undercutting appellant’s argument that the statement was trustworthy because it
was made with xxxxxxx’s full knowledge that it may subject him to prosecution.”
(Gov. Br. 16 n.11)
The government’s speculation that xxxxxxx did not fully understand his rights
before the court explained them to him is not supported by the record. The
court’s advice of rights occurred after xxxxxxx had consulted with his own lawyer
and had been warned by xxxxxxx’s counsel. In fact, the district court confirmed at
the beginning of its colloquy with xxxxxxx that his attorney had discussed with him
“the meaning of his Fifth Amendment right not to testify[.]” (1/5/00 Tr. 154)
After xxxxxxx indicated that he had discussed the matter with his lawyer, the court
stated that it “would like to repeat for [him] some of what [his] attorney had
undoubtedly told [him]. (Id.) Moreover, as discussed above (p. 7, supra), xxxxxxx’s
attorney gave xxxxxxx essentially the same warnings that the court gave him.
Thus, there is nothing in the record to indicate that xxxxxxx did not fully understand
his rights before the court repeated the Fifth Amendment warnings. Instead, it is
more likely that xxxxxxx changed his mind and decided not to testify based upon
the consistent advice of rights from xxxxxxx’s counsel, xxxxxxx’s own lawyer, and
the district judge. In light of this record, xxxxxxx’s decision not to testify does not
in any way undermine the trustworthiness of his statement against penal interest.
The totality of the circumstances surrounding the making of that statement clearly
indicate that it was sufficiently trustworthy to be admitted under Rule 804(b)(3).
Therefore, the district court erred in excluding xxxxxxx’s statement.
B. Other Record Evidence Corroborated xxxxxxx’s Statement
The government argues that the district court correctly determined that
there was no evidence in the record that corroborated the substance of xxxxxxx’s
statement. (Gov. Br. 17-19) Contrary to the government’s assertion (Gov. Br.
18), the police testimony that xxxxxxx was the other person stopped with xxxxxxx
inside the apartment building does corroborate at least part of xxxxxxx’s statement
by establishing that he was present in the location where the police observed a
man with a gun and from which the gun was later recovered. See United States
v. Mock, 640 F.2d 629, 631-32 (5th Cir. 1981)(admitting Rule 804(b)(3)
statement against defendant where declarant’s statement that her former husband
told her that he was going to Tampa to discuss drug smuggling with defendant
was corroborated by other evidence that husband did go to Tampa for that
purpose); 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence,
§ 804.06[5][c], at 804-62(2000)(“Evidence that the declarant was near the scene
and had some motive or background connecting him with the crime should be
sufficient corroboration” for admission of statement against penal interest). It is
true that two officers identified xxxxxxx as the man with the gun but xxxxxxx presented
a misidentification defense. Therefore, evidence in the record establishing that the
declarant of the statement against penal interest was the person with xxxxxxx when
the police made their identification corroborates a necessary element of the
declarant’s statement - - that he was with xxxxxxx in the place where the police saw
the person with the gun.
The government attacks defense witness Goodwin’s testimony that she
could see the entire third floor and window but did not see either xxxxxxx or xxxxxxx
with a gun and did not see the gun lying on the floor. (Gov. Br. 18) Since
Goodwin was looking through the peep-hole in her apartment door, it is reasonable
to believe that she would not have seen xxxxxxx with the gun as she testified that
xxxxxxx was crouched down as he came up the stairs and she was mainly focused
on xxxxxxx, who was standing in front of her door. (1/5/00 Tr. 160, 169, 171)
Similarly, Goodwin’s inability to see the gun lying on the floor beneath one of the
third-floor windows does not discredit her entire testimony. Even if she was able
to see any person who was on the third floor, it is certainly credible that she still
would not have been able to see the gun lying on the floor. At a minimum, the
government’s arguments do not constitute a sufficient basis to reject Goodwin’s
testimony concerning her observations of xxxxxxx and xxxxxxx inside the apartment
building.
The government also contends that Goodwin’s testimony that xxxxxxx
looked out the third-floor window was inconsistent with the police testimony that
the man with the gun looked out the second-floor window. (Gov. Br. 18-19)
However, although Goodwin did testify that the person with xxxxxxx went over to
the window on the third floor, she also testified that she saw that person crouched
down when he was in the area of the second-floor window as he came up the
steps. (1/5/00 Tr. 163, 167) Thus, Goodwin’s testimony is consistent with the
police testimony that the officers saw the person with the gun through the
second-floor window and with Officer Dyson’s testimony that the man with the
gun “bent over and looked out the window and saw [the officers] approaching,
turned around and ran back up the stairs. (Id. 32, 54)
xxxxxxx does not dispute the government’s point that the police testimony
identifying xxxxxxx as the man with the gun directly contradicts xxxxxxx’s
exculpatory statement. (Gov. Br. 18) However, viewed in the context of xxxxxxx’s
misidentification defense, portions of the police testimony concerning the
movements of the man with the gun are consistent with portions of Goodwin’s
testimony concerning the movements of the other man inside the building with
xxxxxxx. Thus, at least a portion of the record evidence -- albeit only when viewed
in the context of xxxxxxx’s misidentification defense -- corroborates xxxxxxx’s
statement that he possessed the gun.
The government erroneously contends that “this case is essentially on all
fours with Edelin.” (Gov. Br. 19) Although there are factual similarities in the
two cases, there are two critical distinctions. First, in contrast to the statement in
Edelin that was given to a defense investigator apparently without any advice of
rights, xxxxxxx’s statement was given to defense counsel and her investigator after
counsel warned xxxxxxx that his statement could subject him to prosecution.
Second, while none of the defense witnesses in Edelin corroborated the declarant’s
statement exculpating the defendant, 996 F.2d at 1242, there was testimony in
this case that at least partially corroborated xxxxxxx’s statement that he had the
gun. The police testimony established that xxxxxxx was inside the building with
xxxxxxx when the officers observed the man with a gun and Goodwin testified that
she observed xxxxxxx on the third floor and did not see him with a gun. Her
testimony also established that the movements of the other person inside the
building, later identified to be xxxxxxx, were consistent with those of the man who,
according to police testimony, was holding a gun. This evidence corroborated
xxxxxxx’s statement. In light of these essential factual distinctions, Edelin does not
control this case.
C. The District Court’s Error In Excluding xxxxxxx’s Statement
Was Not Harmless
In arguing that any error by the district court in excluding xxxxxxx’s
statement was harmless, the government questions whether the constitutional
harmless-error standard applies. (Gov. Br. 20) In his opening brief, xxxxxxx relied
primarily upon the Supreme Court’s decision in Chambers v. Mississippi, 410 U.S.
284, 302 (1973), in arguing that the district court’s exclusion of xxxxxxx’s
statement denied xxxxxxx a fair opportunity to present his misidentification defense.
(Def. Br. 12-14, 20-22) In Chambers, the Court recognized the principle that
“[t]he right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accusations.” 410 U.S. at
302. The Chambers Court considered as factors in determining whether a
defendant’s due process rights require the admission of a particular item of
evidence the extent to which the evidence is “critical” in the context of the case,
the extent to which the evidence “tend[s] to exculpate” the defendant, and finally,
whether the evidence bears “persuasive assurances of trustworthiness [.]” Id. at
297, 302. See also United States v. Delgado, 903 F.2d 1495, 1500 (11th Cir.
1990)(recognizing that important factors in determining whether exclusion of Rule
804(b)(3) statement violates due process is degree to which statement exculpates
defendant and reliability of statement).
In this case, the exclusion of xxxxxxx’s statement violated Rule 804(b)(3)
and deprived xxxxxxx of crucial evidence in support of his misidentification defense.
xxxxxxx’s statement that he had the gun directly exculpated xxxxxxx. Moreover, for
the reasons set forth in xxxxxxx’s opening brief and the preceding section of this
brief, the excluded statement was sufficiently trustworthy to be admissible under
Rule 804(b)(3) and as a matter of due process. Because the district court’s ruling
violated Rule 804(b)(3) and affected xxxxxxx’s due process right to a fair opportunity
to defend himself against the government’s evidence, the constitutional harmless-error standard applies. See United States v. Wilson, 160 F.2d at 741 n.8
(applying constitutional harmless-error standard to admission against the defendant
of statement against penal interest under Rule 804(b)(3)); United States v.
Mitchell, 49 F.3d 769, 777-78 (D.C. Cir. 1995)(applying constitutional harmless-error standard to alleged error in admitting against defendant certain Western
Union money transfer records under business records and co-conspirator statement
exceptions to hearsay rule); United States v. Benveniste 564 F.2d at 341-42
(holding that the court’s error in refusing to permit defense investigator to testify
as to declarant’s statements against penal interest that exculpated defendant
violated Rule 804(b)(3) and defendant’s due process rights).
The government argues that any error in excluding xxxxxxx’s statement was
harmless beyond a reasonable doubt because the government’s case against xxxxxxx
was “simple and straightforward” and because xxxxxxx’s misidentification defense
was “weak.” (Gov. Br. 20-22) In discussing the evidence presented by the
prosecution, the government fails to address the serious inconsistencies in the
police testimony. While Officer Rosario saw two men standing inside the building,
one of whom he identified as xxxxxxx (1/5/00 Tr. 63-64), Officer Dyson saw only
one person, whom he identified as xxxxxxx (id. at 32-33, 40). Moreover, Rosario
testified that the man was holding a gun down with two hands gripping the handle
(id. 63), while Dyson testified that the man held a gun “in his hand” as he walked
down the stairs (id. at 32). Finally, although Dyson testified that the man with
the gun “bent over and looked out the window ... turned around and ran back up
the stairs”(id. 32-54), Rosario did not testify that the man looked out the window
toward the police or ran back up the stairs. In fact, Rosario testified that the man
with the gun ran down the stairs. (Id. at 65) Thus, the police testimony
concerning the facts surrounding the officers’ identification of xxxxxxx was
contradictory and conflicting on several critical points. Since the government
failed to present any additional evidence to corroborate the police testimony, the
government’s case against Mr. xxxxxxx was not nearly as strong as the government
suggests. Given that the government’s evidence consisted almost exclusively of
uncorroborated and inconsistent eyewitness testimony, the exclusion of xxxxxxx’s
confession - - which directly supported xxxxxxx’s misidentification defense - - was
not harmless beyond a reasonable doubt.
The government argues that the admission of xxxxxxx’s statement would not
have contributed to xxxxxxx’s misidentification defense. (Gov. Br. 21-22) In
support of this argument, the government erroneously claims that xxxxxxx’s
statement did not “clearly exculpate xxxxxxx because the statement that xxxxxxx
‘had a gun’ does not indicate at what point in time xxxxxxx possessed the gun,
whether or not appellant knew about the gun, or why xxxxxxx and appellant were
together at approximately 1:45 a.m., armed with a gun in an apartment building in
which neither of them lived.” (Gov. Br. 21-22) The government’s contention is
without support. To begin with, xxxxxxx’s statement was not that he had a gun
but that he had the gun. (1/5/00 Tr. 152) Moreover, the clear inference of
xxxxxxx’s statement was that he, and not xxxxxxx, had the gun when the police
observed them inside the apartment building. Thus, contrary to the government’s
assertion, xxxxxxx’s statement directly exculpated xxxxxxx. Finally, evidence that
xxxxxxx knew xxxxxxx had the gun or was present when xxxxxxx was armed is not
sufficient to prove that xxxxxxx constructively possessed the gun. See United States
v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980)(“There must be some action, some
word, or some conduct that links the individual to the [contraband] and indicates
that he had some stake in [it], some power over [it].”). In short, contrary to the
government's assertion, xxxxxxx’s statement would have significantly strengthened
xxxxxxx’s misidentification defense.
The government also contends that xxxxxxx’s statement would have been
substantially impeached by xxxxxxx’s relationship with xxxxxxx and the fact that
xxxxxxx did not tell the police that he had the gun when the police stopped him or
at the time of xxxxxxx’s arrest. (Gov. Br. 22) These arguments go to the weight the
jury would have given to the statement and not to the statement’s admissibility.
Certainly, if the district court had admitted xxxxxxx’s statement, the prosecutor
would have been free to argue to the jury that the statement was not credible. In
response, the defense could have rebutted the charges of bias and fabrication by
pointing to the circumstances that corroborated xxxxxxx’s statement. Ultimately,
the jury could have considered the credibility of the statement in weighing xxxxxxx’s
misidentification defense. If the jury believed xxxxxxx’s statement, or if the
statement merely raised a reasonable doubt in one juror’s mind, the admission of
the statement could have affected the jury’s verdict. Under these circumstances,
whether this Court applies the constitutional harmless-error standard or the
nonconstitutional harmless-error standard
, the district court’s error in excluding
xxxxxxx’s statement potentially affected the verdict and therefore cannot be
deemed harmless. See United States v. Smith, 77 F.3d 511, 515 n.1(D.C. Cir.
1996)(indicating that harmless-error analysis requires appellate court to refrain
from evaluating overall weight of evidence and instead to determine potential
effect error had on jury)(citing O’Neal v. McAninch, 513 U.S. 432, 437-38
(1995)).
CONCLUSION
For the foregoing reasons, as well as those set forth in Mr. xxxxxxx’s opening
brief, his conviction should be reversed and a new trial ordered.
Respectfully submitted,
A. J. KRAMER
Federal Public Defender
NEIL H. JAFFEE
Assistant Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF LENGTH
I hereby certify that the foregoing Reply Brief for Appellant, xxxxxxx D.
xxxxxxx, contains 5208 words and does not exceed the word limitation of Circuit
Rule 32 and Fed. R. App. P. 32(a)(7).
Neil H. Jaffee
CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2001, two copies of the foregoing
Reply Brief for Appellant, xxxxxxx D. xxxxxxx, were served by first-class mail,
postage prepaid, on Assistant United States Attorneys John R. Fisher and Mary B.
McCord, Appellate Division, 555 Fourth Street, N.W., Room 8104, Washington,
D.C. 20001.
Neil H. Jaffee