_________________________________________________________________

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxx xxxxxxx, Defendant-Appellant.

_________________________________________________________________

________________________________________________________________

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. 92-304

Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, xxxxxxx xxxxxxx, hereby states as follows:

A. Parties and Amici:

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

B. Rulings Under Review:

This is an appeal by Mr. xxxxxxx of the rulings by the district court, the Honorable Harold H. Greene, (1) admitting tangible evidence that had not been adequately maintained and preserved while in the possession of the government and that actually had been tampered with (A. at 39), and (2) giving the jury outside-the-record information about the courtroom clerk's general practices with regard to custody of evidence and information about the clerk's and prosecutor's actual practice in this case (A. at 58).

C. Related Cases:

There are no related cases and this case has not previously been before this Court.

TABLE OF AUTHORITIES ii

STATUTES AND RULES 1

JURISDICTION 1

ISSUES PRESENTED 1

STATEMENT OF THE CASE 2

A. Proceedings Below 2

B. Statement Of Facts 3

1. The Chain Of Custody Of The Evidence 5

SUMMARY OF ARGUMENT 9

ARGUMENT

I. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO EXCLUDE TANGIBLE EVIDENCE WHERE THE CHAIN OF CUSTODY WAS BROKEN AND THE EVIDENCE

ACTUALLY TAMPERED WITH 10

A. Standard Of Review 10

B. The Chain of Custody Was Broken And The Evidence

Tampered With 10

II. THE TRIAL COURT EFFECTIVELY BECAME A WITNESS AGAINST APPELLANT WHEN HE EXPLAINED TO THE JURY HIS CLERK'S GENERAL PRACTICE REGARDING TANGIBLE EVIDENCE RECEIVED BY THE COURT, EXPLAINED THE SPECIFIC HANDLING OF THE EVIDENCE IN THIS CASE, AND VIRTUALLY TOLD THE JURY THAT A GOVERNMENT WITNESS HAD TESTIFIED TRUTHFULLY ON THE

SUBJECT 14

A. Standard Of Review 14

B. The Trial Court Added To The Government's Evidence And Bolstered The Credibility Of The Government's

Witness 14

CONCLUSION 23

CERTIFICATE OF LENGTH 24

CERTIFICATE OF SERVICE 24

TABLE OF AUTHORITIES

CASES

*Ah Lou Koa v. American Export Isbrandtsen

Lines, Inc., 513 F.2d 261 (2d Cir. 1975) 18, 19

Billeci v. United States, 184 F.2d 394 (D.C. Cir. 1950)

20, 21

*Gass v. United States, 416 F.2d 767 (D.C. Cir. 1969) 10, 15

Hardy v. United States, 335 F.2d 288 (D.C. Cir. 1964) 20

People v. Rivera, 592 N.Y.S.2d 697 (A.D. 1 Dept. 1993) 13

*Quercia v. United States, 289 U.S. 466 (1933) 14, 17, 20, 22

Seigal v. American Honda Motor Co., Inc.,

921 F.2d 15 (1st Cir. 1990) 13

Starr v. United States, 153 U.S. 614 (1894) 22

United States v. Anton, 597 F.2d 371 (3rd Cir. 1979) 20

United States v. Dickerson, 873 F.2d 1181 (9th Cir. 1988)

11, 12, 13

United States v. Dopf, 434 F.2d 205 (5th Cir. 1970) 20

United States v. Ladd, 885 F.2d 954 (1st Cir. 1989) 10

*United States v. Lane, 591 F.2d 961 (D.C. Cir. 1979)

9, 10, 11, 12, 15

United States v. Noles, 524 F.2d 1262 (5th Cir. 1975) 17

United States v. Paiva, 892 F.2d 148 (1st Cir. 1989) 14

STATUTES

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) . . . . . . . . . 2

21 U.S.C. § 844(a) 2

Fed. R. Evid. 605 14, 17

Fed. R. Evid. 901(a) 10

* Cases chiefly relied upon are marked with an asterisk.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. 93-3102

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxx xxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF OF DEFENDANT-APPELLANT

xxxxxxx xxxxxxx

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 11(a)(3), the pertinent statutes are set forth in the Addendum to this brief.

The District Court had jurisdiction under 18 U.S.C. § 3231. A timely notice of appeal having been filed within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. § 1291.

I. Whether the trial court erred when it admitted tangible evidence against appellant where the government had failed to maintain the evidence in its original condition.

II. Whether the trial court effectively became a witness against appellant when he explained to the jury his courtroom clerk's general practice with regard to tangible evidence received by the court, explained the specific handling of the evidence in this case, and virtually told the jury that a government witness had testified truthfully about the court's practices and about the handling of the evidence in this case.

A. Proceedings Below

On August 6, 1992, the grand jury returned a two-count indictment charging Mr. xxxxxxx with possession with intent to distribute more than 5 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and with simple possession of cocaine in violation of 21 U.S.C. § 844(a).

A jury trial presided over by the Honorable Harold H. Greene commenced on December 11, 1992. The trial court granted appellant's motion for judgment of acquittal as to count 2, which charged possession of cocaine. The trial court declared a mistrial after the jury twice sent notes indicating that it was deadlocked (12/14 at 205; 12/16 at 208, 213). ⁽¹⁾

A second jury trial, over which Judge Greene also presided, commenced on February 16, 1993. On February 19, 1993, the jury returned a verdict of guilty on the charge of possession with intent to distribute cocaine base. On May 28, 1993, Mr. xxxxxxx was sentenced to 97 months imprisonment. Mr. xxxxxxx filed a timely notice of appeal.

B. Statement Of Facts

On July 15, 1992, appellant travelled from New York City toward Newport News, Virginia on the Amtrak train. When the train stopped at Union Station for a brief layover, appellant disembarked and was questioned by Detective Centrella, a member of the Metropolitan Police Department's Drug Interdiction Unit (Tr.II at 14, 16). At Detective Centrella's request, appellant produced his one-way train ticket that had been purchased with cash on the day of travel and that bore the name, "J. Gumbs" (Tr.II at 17-18). According to Centrella, appellant appeared to be nervous, did not maintain eye contact, spoke in a "choppy" voice, prefaced his answers with the question, "Who me?" ⁽²⁾ and told Centrella that his name was "James Lipps" (Tr.II at 19).

In response to Centrella's request for identification, appellant pointed at the train from which he had disembarked and began walking back to the train (Tr.II at 19-20). With Detective Centrella by his side, appellant proceeded to a train car and pulled a brown tote bag and a black tote bag from an overhead rack (Tr.II at 20-21, 67). Appellant put the bags on the floor, opened the brown bag and began searching through it for his identification (Tr.II at 22, 67). After watching for a few seconds, Detective Centrella asked for and received appellant's consent to search the bags (Tr.II at 23, 67). Centrella recovered 24 grams of crack cocaine from the black bag (Tr.II at 23; Tr.IIA at 31).

Detective Centrella could not testify as to exactly the contents of the two bags because neither he nor any other officer made an inventory of the contents of the bag (Tr.II at 25, 73; Tr.IIA at 4; Tr.III at 29). Nevertheless, Centrella recalled that both bags contained clothing (Tr.II at 25, 30). Detective Centrella's partner, Detective Huffman, testified that a scale was recovered from the brown bag (Tr.II at 71). Also recovered from the brown bag was a white plastic bag containing documents (Tr.II at 72). Twenty-eight documents, including pieces of paper with names and telephone numbers, receipts, business cards, a U.S. Army patch, and a letter, were excluded from evidence as either irrelevant or prejudicial (12/14 at 143, 146-151). The documents admitted into evidence were: a piece of paper on which was written the name "Sharon" and a telephone number, a prescription in appellant's name, a receipt from a hotel bearing appellant's name, and various papers with beeper numbers and room numbers (12/14/ at 152-153).

Detective Rawls testified as a "drug expert." He testified that drug couriers commonly use aliases, often store drugs in luggage, and often separate contraband from personal papers (Tr.IIA at 44-45). He testified that he had seen scales such as that recovered from the brown bag used in the drug trade (Tr.IIA at 47).

1. The Chain Of Custody Of The Evidence

None of the officers made an inventory of the contents of the two bags, but a photograph of the bags was taken at the police station (Tr.II at 25, 73; Tr.IIA at 4; Tr.III at 29). Detective Huffman testified that he would not be able to identify every item that was in the bags and could not say if any items had been removed (Tr.IIA at 5).

During jury deliberations in the first trial, the jury sent a note to the judge asking, "Can we find out what the red background in Exhibit No. 11 is?" (12/14 at 196; A. at 17). Exhibit 11 was the photograph of the brown and black tote bags. Because Judge Greene was unavailable, Judge Flannery received the juror's note and responded by telling them "There is no evidence dealing with that matter, so the court can't help you. I can't answer this question." (12/14 at 195, 198; A. at 19).

As Judge Flannery's law clerk pointed out in a colloquy prior to the judge's answer to the jury, "[t]he problem is there is nothing red [presently] in the [black] bag," although the photograph showed a red item in that bag (12/14 at 196; A. at 17). The prosecutor, Corbin Weiss, then explained to Judge Flannery that after the bags had been admitted into evidence he had taken them to his office for the weekend to examine them more closely. He said that he had emptied the contents of each bag and speculated that he had then replaced some red pants in the wrong bag (12/14 at 197-198; A. at 18-19).

Another Assistant United States Attorney was assigned to prosecute the second trial in this case. Prior to the second trial appellant served Corbin Weiss with a subpoena, seeking to elicit his testimony that he took possession of the evidence and altered it. Although the district court originally granted the government's motion to quash appellant's subpoena for Mr. Weiss' testimony, it reversed its ruling after a police officer testifying for the government gave the jury the impression that there was no possibility of evidence having been tampered with (Tr.I at 8; Tr.IIA at 16-26; A. at 25, 28-38). The witness told the jury that "there are safeguards that we have, we take, to keep the integrity of the bag such as the bags are marked, tagged with our initials. They are put into a locked property room where they are handled by the property evidence officer who takes the evidence to the property office on Shannon Place, Southeast[,] where it's stored for trial." (Tr.IIA at 4, 16-26; Tr.III at 2-5). The government then called Mr. Weiss as a witness in their case-in-chief.

Mr. Weiss testified that he "was exclusively in possession of some of the evidence in this case over the weekend that intervened between the conclusion of evidence on Friday and closing argument the following Monday" (Tr.III at 13; A. at 45). ⁽³⁾ Mr. Weiss took the brown bag and the black bag (and all their contents) to his office where, on Sunday, he emptied and inspected them (Tr.III at 13, 16; A. at 45, 48). He told the jurors, "I am fairly confident, I'm very confident that I accidently failed to put the red pants back in the black bag after I emptied the black bag but instead put them in the brown bag and at the time that I did that I didn't realize that I had done it." (Tr.III at 20; A. at 52). Mr. Weiss characterized his conduct as an "error" and as "a little bit sloppy," but claimed that he was sure that he had been "scrupulous" about putting all of the documents and the scale ⁽⁴⁾ back in the bag from whence they came (Tr.III at 19-21; A. at 51-53). ⁽⁵⁾ Mr. Weiss agreed that the local rules of the court require evidence that has been received by the court to remain in the custody of the court clerk (Tr. III at 24; A. at 56). He testified, however, that Judge Greene's clerk's "regular attitude" was that she did not want evidence to remain in her custody, and that he "did not want to make an issue of that" (Tr.III at 24-25; A. at 56-57). Therefore, according to Mr. Weiss, he took possession of the evidence in this case without even consulting with the clerk of the court of with the court (Tr.III at 25; A. at 57). Mr. Weiss told the jury that

[I] did not want to make an issue of that with respect to this court and the deputy court clerk Dottie. She didn't want to take the evidence. I trust myself. Obviously my trust in myself and my faith in myself was somewhat let down in that I mistakenly put the red pants in the brown bag, but it didn't strike me as something worth bring to his honor's attention.

(Tr.III at 25-26; A. 57-58). The trial court immediately interrupted the cross-examination to bear witness to the truth of Mr. Weiss' testimony by explaining his clerk's practices and customs and by explaining how Mr. Weiss, in contravention of the rules, came to possess the evidence:

I think it's fair to inform the jury that some items are routinely left with the prosecutor's office rather than being kept here, such as guns and drugs, because we have no secure facilities for those in the judge's chambers. So they go to the prosecutor's office. And actually and regularly the rest of the evidence should probably be kept here rather than being given to the prosecutor. In this case as in other cases my court clerk gave the evidence to be held by the prosecutor as she apparently had -- it had been her practice in some cases and that's how they got into the hands of the Assistant United States Attorney[, Corbin Weiss].

(Tr.III at 26; A. at 58).

Counsel for appellant objected to the introduction into evidence of the two bags and their contents stating,

I object on the same basis as I have all along, Your Honor, that we have a tampered chain of custody and we have no assurance that they're in the same condition they were when they were received.

(Tr.IIA at 69; A. at 39). The district court overruled appellant's objections and admitted the evidence (Id.). Counsel for appellant argued to the jury that it should not credit Mr. Weiss' testimony and that the evidence that the bags were tampered with should cause the jury to pause and to entertain a reasonable doubt (Tr.IIIA at 21-24).

SUMMARY OF ARGUMENT

The trial court erred by admitting into evidence the two tote bags and their contents because the government failed to demonstrate that "satisfactory precautions [were taken] to preserve the identity and character" of the bags. United States v. Lane, 591 F.2d 961, 965-966 (D.C. Cir. 1979). In fact, the evidence was not adequately safeguarded and actually was tampered with and altered.

The trial court improperly provided outside-the-record information to the jury concerning the courtroom clerk's general practice with regard to tangible evidence received by the court and concerning the specific handling of the evidence in this case. The court's explanation bolstered the credibility of the prosecutor-witness by conveying to the jury that the witness had testified truthfully about the court's practices and about the handling of the evidence in this case.

I. THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO EXCLUDE TANGIBLE EVIDENCE WHERE THE CHAIN OF CUSTODY WAS BROKEN AND THE EVIDENCE ACTUALLY TAMPERED WITH.

A. Standard Of Review

This court reviews the trial court's admission of evidence for abuse of discretion. United States v. Ladd, 885 F.2d 954 (1st Cir. 1989).

B. The Chain Of Custody Was Broken And The Evidence Tampered With.

The proponent of evidence must establish by a reasonable probability that the evidence is in substantially the same condition as when the crime was committed. United States v. Lane, 591 F.2d 961, 962 (D.C. Cir. 1979); Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969); Fed.R.Evid. 901(a). To meet this threshold burden, the proponent must demonstrate that "satisfactory precautions [were taken] to preserve the identity and character" of the evidence. Lane, 591 F.2d at 965-966. When the government is the proponent of evidence a presumption of regularity attaches to evidence held by its officials. Id. at 962; Gass, 416 F.2d at 770. That presumption dissolves, however, where the defendant makes a "minimal showing of ill will, bad faith, other evil motivation, or some evidence of tampering." Lane, 591 F.2d at 962 (emphasis added). When the defendant has made such a showing, the chain of custody is called into question and the evidence is inadmissible unless the government can prove that the identity and character of the evidence was preserved.

In the instant case, the government failed to demonstrate that it took "satisfactory precautions to preserve the identity and character" of the two pieces of luggage and their contents. Id. at 965-966. The evidence was not adequately safeguarded and actually was tampered with and altered. The prosecutor who represented the government in the first prosecution of appellant, Corbin Weiss, admitted that he violated the district court's local rules by taking evidence that had been received by the court to his office for a weekend, and admitted that he altered the evidence when he examined it and replaced a piece of the evidence incorrectly. Significantly, Mr. Weiss also did not testify that he took any precautions to adequately safeguard the evidence while he held it in his possession. Under these circumstances, the district court erred by admitting the bags and their contents into evidence.

In United States v. Dickerson, 873 F.2d 1181 (9th Cir. 1988), the court addressed whether the government properly could take possession of an airplane pursuant to federal forfeiture statutes where there was some evidence of tampering and where there was no evidence that the property was properly secured while held in the custody of the government. In that case, the government seized an airplane that it believed had been used for drug trafficking. At the time that the government agents seized the airplane, its cargo area was empty but for a rolled up carpet. Id. at 1183. When the agents searched the airplane six days later, the carpet was unrolled in the cargo area and a narcotics detection dog "alerted" on the carpet. Id. at 1184. None of the agents testified about how the airplane had been secured during the six days in which it was in the government's custody. Id. Echoing this Court's decision in United States v. Lane, supra, the Ninth Circuit observed that "[i]f there is some evidence of tampering, then the government must show that acceptable precautions were taken to maintain the evidence in its original state." Id. at 1185. Because the government did not present evidence concerning how the airplane was safeguarded during the six days of government custody, and because there was evidence that the carpet had been moved, the court held that "[t]he government could not establish that 'acceptable precautions,' or any precautions at all, were taken to maintain the plane and its contents in their original state.

As in Dickerson, the government failed here to establish that acceptable precautions were taken to maintain the bags and their contents in their original state. First, the government did not present evidence concerning how the bags were safeguarded during the weekend in which the bags were left in the prosecutor's office. Although the prosecutor took credit for altering one piece of evidence himself, there was no testimony such that a court could find that the evidence was safeguarded while in his custody. For example, there was no testimony that Mr. Weiss' office contained a locked safe in which he stored the evidence, there was no testimony that Mr. Weiss' office door could be locked, and there was no testimony that Mr. Weiss in fact locked the evidence inside his office. Nor was there testimony about whether other people (such as police officers, secretaries, maintenance personnel, cleaning staff, other prosecutors, or witnesses in this or other cases) had access to Mr. Weiss' office during that Friday afternoon, Saturday, Sunday and Monday morning.

In addition, as in Dickerson, there was evidence that the tangible evidence had been altered. Mr. Weiss admitted that he altered some of the evidence because he was "a little bit sloppy" in his handling of it. His claim that he was "scrupulous" in handling other of the evidence against appellant cannot repair the damage since there was undisputed evidence that he altered some of the tangible evidence and absolutely no evidence that he safeguarded the evidence from other intermeddlers while it was in his care and custody. See People v. Rivera, 592 N.Y.S.2d 697 (A.D. 1 Dept. 1993) (gap in chain of custody of six envelopes of drugs between seizure of drugs and subsequent vouchering of them at police station required reversal of conviction because it was possible that envelopes of drugs seized by other officers could have been commingled with envelopes seized from defendant); Seigal v. American Honda Motor Co., Inc., 921 F.2d 15 (1st Cir. 1990) (in products liability suit district court properly excluded tangible evidence as unauthenticated where evidence had been intentionally altered following parties' inspection of it and while in plaintiff's exclusive control). Thus, the trial court should have excluded the bags and all their contents because there was evidence that the bags were tampered with, there was no evidence that the government took precautions to preclude further tampering, and because there was undisputed evidence that the tangible evidence actually was altered.

The erroneous admission of the bags and their contents was not harmless. While it is true that the evidence contained in the bags did not include the drugs and therefore did not directly incriminate appellant, clearly the bags and the contents of the bags were important enough for the government to introduce them into evidence. In addition, it must be remembered that the jury in the first trial was unable to agree on a verdict. Therefore, it must be presumed that the evidence was material and that the jury gave it some weight.

II. THE TRIAL COURT EFFECTIVELY BECAME A WITNESS AGAINST APPELLANT WHEN HE EXPLAINED TO THE JURY HIS CLERK'S GENERAL PRACTICE REGARDING TANGIBLE EVIDENCE RECEIVED BY THE COURT, EXPLAINED THE SPECIFIC HANDLING OF THE EVIDENCE IN THIS CASE, AND VIRTUALLY TOLD THE JURY THAT A GOVERNMENT WITNESS HAD TESTIFIED TRUTHFULLY ON THE

SUBJECT.

A. Standard Of Review

Whether the trial court added to the government's evidence and whether it improperly bolstered the credibility of a government witness is reviewed de novo. Quercia v. United States, 289 U.S. 466 (1933). An objection to the trial judge testifying to facts before the jury is unnecessary. Fed.R.Evid. 605; United States v. Paiva, 892 F.2d 148, 158 n.8 (1st Cir. 1989) (where trial judge violated Fed.R.Evid. 605 by explaining to jury the nature and specifics of field testing for controlled substances, defense counsel's failure to object does not limit review to plain error analysis because Rule 605 provides that no objection need be made to preserve the point).

B. The Trial Judge Added To The Government's Evidence And Bolstered The Credibility Of The Government's Witness

Even if the evidence was admissible, it would have been proper for the jury to have attached less weight (or no weight at all) to the evidence since it had been tampered with and altered. United States v. Lane, 591 F.2d 961, 963 (D.C. Cir. 1979) ("So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in light of the surrounding circumstances."); Gass v. United States, 416 F.2d 767, 772 (D.C. Cir. 1969) (once threshold showing of admissibility is established, "the weight to be attached to [the evidence is] a matter for the jury").

The trial judge here provided the jury with factual information from outside the record when it explained the regular practice of the courtroom clerk regarding custody of evidence and told the jury what the clerk did with the two bags in this case. The judge's factual explanation also bolstered Mr. Weiss' credibility because it informed the jury that Mr. Weiss' testimony had been truthful and that his conduct was not improper. The sua sponte charge to the jury came after Mr. Weiss, on cross examination, attempted to avoid the conclusion that he had erred when he violated the local rules by removing property that had been admitted into evidence from the courthouse:

Q. [BY DEFENSE ATTORNEY] Once evidence is received by the Court it is to remain in the custody of the court clerk, isn't that right?

A. [BY WITNESS] Well, that is customary, but that is not what was happening in this courtroom at the time.

Q. And indeed it is, except for guns and drugs and certain dangerous contraband like that, it is improper for an attorney to have possession of evidence after it's been received by the Court, isn't it?

A. I am aware that the local rules governing the courts in Washington, D.C. require that once evidence is admitted into evidence -- once evidence is received by the Court it should remain in the Court.

Q. So is that a yes, Mr. Weiss?

A. It is a yes, but there is a qualification, if you'd like to hear it.

THE COURT: I would like to hear it.

A. I don't remember how many trials it's been now, but I believe I've had approximately a total of five or six trials in this courtroom and prior to that trial I believe I had three or four. During each of those trials it was the custom of the Deputy Clerk of this courtroom not to take custody of any evidence at any time during the trial. She just didn't want to.

Q. And --

A. May I finish? It was my anticipation at the conclusion of the trial in December in U.S. v. xxxxxxx xxxxxxx that nothing had changed. I didn't even ask her if she wanted to take it because I knew her regular attitude towards accepting the evidence and I assumed that I would be taking it then, as I did each and every trial previously.

Q. I see. So just now when you referred to an exception to the local rule, is it your testimony that the attitude of the courtroom clerk creates an exception to the rules of the Court?

A. Miss Stein, I did not want to make an issue of that with respect to this Court and the Deputy Court Clerk Dottie. She didn't want to take the evidence. I trust myself. Obviously my trust in myself and my faith in myself was somewhat let down in that I mistakenly put the red pants in the brown bag, but it didn't strike me as something worth bring to His Honor's attention.

THE COURT: I think it's fair to inform the jury that some items are routinely left with the prosecutor's office rather than being kept here, such as guns and drugs, because we have no secure facilities for those in the judge's chambers. So they go to the prosecutor's office. And actually and regularly the rest of the evidence should probably be kept here rather than being given to the prosecutor. In this case as in other cases my court clerk gave the evidence to be held by the prosecutor as she apparently had -- it had been her practice in some cases and that's how they got into the hands of the Assistant United States Attorney[, Corbin Weiss].

(Tr.III at 24-26; A. at 56-58).

A judge may not give testimony or add to the evidence adduced by either side. "In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it." Quercia v. United States, 289 U.S. at 470 (emphasis added). ⁽⁶⁾ Here, the judge added to the evidence by explaining to the jury how the courtroom clerk kept evidence generally, and specifically, how the two bags and their contents were kept in this case. United States v. Noles, 524 F.2d 1262, 1262 (5th Cir. 1975) (judge's question to jury, "How many of you know that from marijuana you go to heroin, or all the dangerous drugs?" amounted to "testimony by the district judge as to a fact" and required reversal).

In addition, the judge's comments bolstered the credibility of Corbin Weiss, the government's only witness on the critical issue of the chain of custody. When a judge "reache[s] outside the record for facts to support the credibility of [the government's witness]" the defendant has not received a fair trial. Ah Lou Koa v. American Export Isbrandtsen Lines, Inc., 513 F.2d 261, 264 (2d Cir. 1975). In Koa, the plaintiff seaman brought suit against the ship's owners seeking damages for personal injury. While working on the ship, the plaintiff had fallen and slid across the room during bad weather. The plaintiff alleged that his fall was caused by a "heavy roll of the ship and a rush of water under his feet." Id. at 262. He testified that the source of the water was a water fountain that generally overflowed in rough weather. The defense introduced into evidence, however, a statement given to a defense investigator and signed by plaintiff that said that the floor had been clean and dry. Plaintiff asked the jury to give no weight to the statement, arguing that the investigator who had taken the statement had overreached and that plaintiff could not read and had difficulty even understanding English. The judge instructed the jury that the investigator was "not obliged to . . . protect the defendant" but was obliged merely to investigate the case, expressed disbelief that the investigator or the company would act dishonorably, and said that two other seamen who had testified for the company were from the same union hall as the plaintiff although that information was not based on the record. Id. at 263.

The Second Circuit held in Koa that the judge's comments would have given the jury the impression that he viewed appellant's arguments regarding the investigator's taking of the statement to be "implausible," id., and that he believed the investigator's testimony about the statement to be truthful. Id. at 264. And, the judge's statement that two of the defense witnesses were from the same union hall as plaintiff "called on the jury to credit their testimony based on an inference from facts outside the record." Id. Because the accuracy of the statement was a "major issue," id. at 262, and because "[t]he jury's attitude toward . . . [the investigator] and his role in the case was certainly crucial to its determination of this issue," the court reversed the judge's dismissal after a verdict for defendant. Id. at 263. The chain of custody of the evidence and the fact that it had been tampered with were major issues in this case. The jury's attitude toward Corbin Weiss and his role in the chain of custody was crucial to its determination of this issue. Like the judge's comments in Koa, the judge's comments here suggested to the jury that appellant's arguments regarding the chain of custody and Mr. Weiss' credibility were "far-fetched and false" and that, in fact, Mr. Weiss was a credible, truthful witness. Id. at 264. By "inform[ing] the jury" about the courtroom practices already described by Mr. Weiss, the judge told the jury that Mr. Weiss' testimony was truthful (Tr.III at 26; A. at 58). He told the jury that Weiss' testimony about the courtroom clerk's regular practice was correct and implied that Mr. Weiss had done nothing improper by removing the evidence from the courtroom. By those remarks the judge clearly adopted the prosecution's view of the events and their significance, and improperly bolstered Mr. Weiss' credibility. Hardy v. United States, 335 F.2d 288, 290 (D.C. Cir. 1964) (judge must actually leave factual finding and credibility determinations to jury, not merely say that he does so); Billeci v. United States, 184 F.2d 394, 401 (D.C. Cir. 1950) (jury is sole judge of credibility of witnesses).

The judge's later "curative" instructions about the jury's role as the factfinder and judge of credibility did not cure error. Quercia, 289 U.S. at 472 (curative instruction fails to cure where judge's "definite and concrete assertion of fact, which he had made with all the persuasiveness of judicial utterance, as to the basis of his opinion, was not withdrawn"); United States v. Anton, 597 F.2d 371 (3rd Cir. 1979) ("Where a court has expressed its opinion on a pivotal issue in the case, and has expressed that opinion in a strong, unequivocal and one-sided fashion, abstract instructions regarding the jury's role as fact finder are not a sufficient remedy."); United States v. Dopf, 434 F.2d 205 (5th Cir. 1970) (fact that jury was told that they were exclusive judge of credibility of witnesses did not cure prejudicial effect of judge's statements to jury that evidence of guilt was overwhelming); Hardy v. United States, 335 F.2d 288, 290 (D.C. Cir. 1964) (where trial judge summarized government's case during instructions to jury as though in were fact, the error was "not cured by instructions that what he said as to the facts was not binding on the jury but was intended only to help, and that the final decision on the facts and on the evidence was solely within the domain of the jury.").

The instructions here were especially ineffectual because they emphasized the jury's duty to judge the credibility of the police officers and to determine what happened on July 15, 1992, ignoring the jury's duty to evaluate Corbin Weiss' credibility and to assess the post-July 15th chain of custody issue. The judge instructed the jury that

[Y]ou, the jury, are the judges of the facts. What that means is that you have to decide what happened on July the 15th, 1992: who said what, where was stuff found, which bag. All these things that we heard about, you must make a decision as to did they happen the way the officers testified to them, or did they happen in some other way, or was their story -- their testimony shaken on cross-examination so you can draw some other conclusion as to what happened. That is entirely your decision. I have no authority whatever to make a decision on the facts; and if I say anything about the facts or if I said anything about the facts in the course of the trial when I was ruling on objections or at any other time, you can just disregard it because I don't have any more power over the facts than the man in the moon. It is entirely your decision to make.

What is not evidence -- perhaps to recapitulate once more -- what I might say or have said is not evidence.

(Tr.IIIA at 32-33) (emphasis added). In addition, the "cure" came so far after the error that it was likely to be ineffectual. Billeci v. United States, 184 F.2d 394, 403 (D.C. Cir. 1950) (curative instruction must be given "in such manner and at such time that the jury will not be left in doubt; references in some remote or obscure portion of a long charge will not suffice for the purpose").

Finally, it is clear that the judge's improper remarks to the jury were not harmless. His remarks "put his own experience, with all the weight that could be attached to it, in the scale . . . ." in support of Mr. Weiss. Quercia v. United States, 289 U.S. at 471. "The influence of the trial judge on the jury 'is necessarily and properly of great weight' and 'his lightest word or intimation is received with deference, and may prove controlling.'" Id. at 470, quoting Starr v. United States, 153 U.S. 614 (1894). The judge's word was particularly weighty here because the judge told the jury that "fairness" required him to provide the facts about the clerk's practices and the conduct of the clerk and Mr. Weiss in this case ("I think it's fair to inform the jury . . . ") (Tr.III at 26; A. at 58). Under these circumstances, appellant did not receive a fair trial and his conviction must be reversed.

CONCLUSION

For the reasons stated above the conviction should be reversed, and a new trial should be ordered.

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_________________________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W.,

Suite 550

Washington, D.C. 20004

(202) 208-7500

I HEREBY CERTIFY that the foregoing brief for appellant, xxxxxxx xxxxxxx, does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.

_________________________________

Sandra G. Roland

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant and one copy of the Appendix for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 11th day of July, 1994.

____________________________________

Sandra G. Roland

_________________________________________________________________

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxx xxxxxxx, Defendant-Appellant.

_________________________________________________________________

________________________________________________________________

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. 92-304

TABLE OF CONTENTS

INDICTMENT 1

CRIMINAL DOCKET 3

JUDGMENT IN A CRIMINAL CASE 11

EXCERPTS OF TRANSCRIPT OF DECEMBER 14, 1992 PROCEEDINGS 15

EXCERPTS OF TRANSCRIPT OF FEBRUARY 16, 1993 PROCEEDINGS 20

EXCERPTS OF TRANSCRIPT OF FEBRUARY 17, 1993 PROCEEDINGS 27

EXCERPTS OF TRANSCRIPT OF FEBRUARY 18, 1993 PROCEEDINGS 40

1. Transcripts of the first trial are cited as follows:

"12/11" refers to the transcript of the first trial proceedings held on December 11, 1992.

"12/14" refers to the transcript of the first trial proceedings held on December 14, 1992.

"12/15" refers to the transcript of the first trial proceedings held on December 15, 1992.

"12/16" refers to the transcript of the first trial proceedings held on December 16, 1992.

(footnote continued)

Transcripts of the second trial are cited as follows:

"Tr.I" refers to the transcript of the trial proceedings held on February 16, 1993.

"Tr.II" refers to the transcript of the trial proceedings held on the morning of February 17, 1993.

"Tr.IIA" refers to the transcript of the trial proceedings held on the afternoon of February 17, 1993.

"Tr.III" refers to the transcript of the trial proceedings held on morning of February 18, 1993.

"Tr.IIIA" refers to the transcript of the trial proceedings held on the afternoon of February 18, 1993.

"Tr.IV" refers to the transcript of the trial proceedings held on February 19, 1993.

2. Detective Centrella was impeached by his failure to report appellant's alleged response, "Who me?," in the narrative that he wrote in a police report or in his testimony before the grand jury (Tr.II at 33-34).

3. Mr. Weiss' testimony is reproduced in its entirety in the Appendix to this brief at pages 40-64.

4. Mr. Weiss was aware that the trial court had excluded all but a few of the documents that were recovered from the brown bag and was aware that the trial court granted appellant's motion for judgment of acquittal on the charge of possession of cocaine base stemming from the residue of powder found on the scale. Nevertheless, Mr. Weiss told the jury that "the brown bag contained a voluminous supply of documents," and that

in my mind . . . there were two distinct pieces of evidence in those bags that were of importance based on what I evaluated the . . . issues in the case to be . . . . [those being] the documents and the contents of those documents. The other was the scale that was inside the brown bag that appeared to contain residue of some kind.

(Tr.III at 16-18; A. at 48-50). Defense counsel's objection to Mr. Weiss' testimony was overruled and her motion for a mistrial was denied (Tr.III at 18, 33-36; A. at 50).

5. Prior to the second trial, Mr. Weiss took the red pants from the brown bag and put them in the black bag (Tr.III at 32; A. at 64).

6. Rule 605 of the Federal Rules of Evidence prohibits judges from testifying at trial as a witness:

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.