ORAL ARGUMENT NOT YET SCHEDULED



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO. xxxxxxxxxxxx







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxx, Defendant-Appellant.





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







BRIEF FOR APPELLANT













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





Cr. No.



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



I. PARTIES AND AMICI:

A. Names of Parties Below and on Appeal

This appeal arises from a criminal trial involving the defendant-appellant, Johnny J. xxxxx, and the plaintiff-appellee, the United States of America. As these are the only parties who appeared below, they are also the only ones on appeal. There are no amici.

II. RULINGS UNDER REVIEW:

This is an appeal from a judgment of the district court (Honorable Stanley S. Harris), dated May 19, 1994 (1), adjudging appellant guilty after jury trial on charges of unlawful possession of a firearm by a convicted felon (Count 1), possession of a firearm with an obliterated, removed, changed, and altered serial number (Count 2), and carrying a pistol without a license (Count 3). In this appeal, appellant seeks review of: (1) the constitutionality of the felon in possession statute he was convicted of violating in Count 1 (18 U.S.C. 922(g)(1)); (2) the sufficiency of the evidence and the jury instructions as to the knowledge element of 18 U.S.C. 922(k); (3) the district court's handling of the 922(g)(1) charge (8/28/92 Tr. 5-7, 21, 27, 35-38; 8/31/92 Tr. 112, 117, 156, 158-160); and (4) the prosecutor's improper cross-examination and impeachment of the principal defense witness (8/31/92 Tr. 18, 28-29). None of these rulings has been reported.

III. RELATED CASES:

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



TABLE OF CONTENTS



TABLE OF AUTHORITIES iv



STATUTES AND RULES 1



JURISDICTION 1



STATEMENT OF THE CASE 1



A. Nature of the Case, Course of Proceedings,and Disposition in the Court Below 1



B. Statement of Facts 2



1. The Prosecution Case 2



2. Stipulations 6



3. The Defense Case 6



4. The Government's Rebuttal 9



SUMMARY OF ARGUMENT 10



ARGUMENT 13



I. CONGRESS EXCEEDED ITS COMMERCE CLAUSE POWER WHEN IT ENACTED THE FELON IN POSSESSION STATUTE, 18 U.S.C. 922(g)(1), BECAUSE THE CONDUCT REGULATED DOES NOT SUBSTANTIALLY AFFECT COMMERCE 13



A. Standard of Review 13



B. Introduction 14



C. The Lopez Decision Requires Invalidation of Mr. xxxxx's 922(g)(1) Conviction 16



1. The Lopez Decision 16



2. Applicability of the Lopez Decision to 922(g)(1) 18



(a) The Text of the Possessory Component of 922(g)(1) Does Not Regulate an Activity that Substantially Affects Interstate Commerce 20





(b) The Legislative History of 922(g)(1) Indicates that Congress Intended to Require Only a Minimal Nexus Between Firearm Possession and Commerce 21



D. Section 922(g)(1)'s Commerce Nexus Does Not Meet the Lopez Substantial Effect Test 22



E. Conclusion 24



II. DEFENDANT'S CONVICTION OF VIOLATING 18 U.S.C. 922(k) MUST BE REVERSED BECAUSE THE GOVERNMENT FAILED TO PROVE THAT HE KNEW THE SERIAL NUMBER OF THE GUN HE POSSESSED WAS REMOVED AND THE COURT'S INSTRUCTIONS DID NOT CONVEY THIS ELEMENT TO THE JURY 25



A. Standard of Review 25



B. Mr. xxxxx's 922(k) Conviction Must Be Reversed Under This Court's Fennell Decision 25

III. THE COURT FAILED TO TAKE ADEQUATE PRECAUTIONS TO PREVENT THE DEFENDANT FROM BEING IMPERMISSIBLY PREJUDICED BY HIS JOINT TRIAL OF OTHER FIREARMS CHARGES WITH A FELON IN POSSESSION FIREARM CHARGE 27



A. Standard of Review 27



B. Repeated References by the Court and Prosecutor Before the Jury to Mr. xxxxx's Felony Conviction Unduly Prejudiced

the Defense 28



C. The Court Failed to Give to the Jury a Cautionary Instruction Limiting its Consideration of Mr. xxxxx's Felony Conviction 30

D. Conclusion 31

IV. THE PROSECUTOR'S IMPROPER IMPEACHMENT AND CROSS-EXAMINATION OF A CRITICAL DEFENSE WITNESS, COMBINED WITH THE TRIAL COURT'S FAILURE TO GIVE THE JURY AN IMMEDIATE CAUTIONARY INSTRUCTION, REQUIRE REVERSAL OF MR. xxxxx'S CONVICTION 32



A. Standard of Review 32



B. Improper Impeachment Under FED. R. EVID.

609(a)(2) 33



1. A Misdemeanor Conviction of Possession of Stolen Property Cannot be Used to Impeach Under Rule 609(a)(2) 34



C. Improper Cross-Examination 38



D. Failure to Give Limiting Instruction 40



E. Cumulative Effect of Errors 41



V. THE INDIVIDUAL ERRORS AT TRIAL, TAKEN TOGETHER, COMBINED TO DEPRIVE THE DEFENDANT OF A FUNDAMENTALLY FAIR TRIAL 42



CONCLUSION 43



CERTIFICATE OF LENGTH 44



CERTIFICATE OF SERVICE 44



ADDENDUM



TABLE OF AUTHORITIES



CASES



Berger v. United States,

295 U.S. 78 (1935) 39



Coursey v. Broadhurst,

888 F.2d 338 (5th Cir. 1989) 36



Dowling v. United States,

473 U.S. 207 (1985) 14



Egan v. United States,

287 F. 958 (D.C. Cir. 1923) 42



Jackson v. Virginia,

443 U.S. 307 (1979) 25



Martin v. Hunter's Lessee,

14 U.S. (1 Wheat.) 304 (1816) 14



Michaelson v. United States,

335 U.S. 469 (1948) 28



Panzavecchia v. Wainwright,

658 F.2d 337 (5th Cir. 1981) 31



Patterson v. Alabama,

294 U.S. 600 (1935) 13



Pendergrast v. United States,

416 F.2d 776 (D.C. Cir.),

cert. denied, 395 U.S. 926 (1969) 14



Scarborough v. United States,

431 U.S. 563 (1977) 15, 19, 20, 22



Stimack v. Texas,

548 F.2d 588 (5th Cir. 1977) 42



United States v. Bass,

404 U.S. 336 (1971) 18



United States v. Blakey,

14 F.3d 1557 (11th Cir. 1994) 39



United States v. Boyd,

54 F.3d 868 (D.C. Cir. 1995) 32



United States v. Brawner,

32 F.3d 602 (D.C. Cir. 1994) 41



*United States v. Copelin,

996 F.2d 379 (D.C. Cir. 1993) 41



*United States v. Daniels,

770 F.2d 1111 (D.C. Cir. 1985) 28, 29, 30, 31



*United States v. Dockery,

955 F.2d 50 (D.C. Cir. 1992) passim



United States v. Doe,

968 F.2d 86 (D.C. Cir. 1992) 13



United States v. Dorsey,

591 F.2d 922 (D.C. Cir. 1978) 27, 36



United States v. Dwyer,

843 F.2d 60 (1st Cir. 1988) 42



United States v. Edelin,

996 F.2d 1238 (D.C. Cir. 1993),

cert. denied, 114 S. Ct. 895 (1994) 25



United States v. Fearwell,

595 F.2d 771 (D.C. Cir. 1978) 36



*United States v. Fennell,

53 F.3d 1296 (D.C. Cir. 1995) 11, 26, 27, 31



United States v. Fox,

95 U.S. 670 (1878) 15



United States v. Freeman,

514 F.2d 1314 (D.C. Cir. 1975),

vacated, 598 F.2d 306 (D.C. Cir. 1979) 42



United States v. Givens,

767 F.2d 574 (9th Cir.),

cert. denied, 474 U.S. 953 (1985) 35, 36



United States v. Grandmont,

680 F.2d 867 (1st Cir. 1982) 37



United States v. Hammoude,

51 F.3d 288 (D.C. Cir.),

cert. denied, 115 S. Ct. 2290 (1995) 25



United States v. Hanna,

No. 94-10131 (9th Cir. May 31, 1995) 19



United States v. Jones,

16 F.3d 487 (2d Cir. 1994) 30



*United States v. Leonard,

494 F.2d 955 (D.C. Cir. 1974) 40



United States v. Lipscomb,

702 F.2d 1049 (D.C. Cir. 1983) 37



*United States v. Lopez,

115 S. Ct. 1624 (1995) passim



United States v. Mitchell,

1 F.3d 235 (4th Cir. 1993) 40



United States v. Olano,

113 S. Ct. 1770 (1993) 33, 42



United States v. Robertson,

115 S. Ct. 1732 (1995) 19



*United States v. Smith,

551 F.2d 348 (D.C. Cir. 1976) 35, 36, 37



United States v. Valentine,

706 F.2d 282 (10th Cir. 1983) 31



United States v. Washington,

12 F.3d 1128 (D.C. Cir.),

cert. denied, 115 S. Ct. 98 (1994) 13, 14, 32



United States v. Yeo,

739 F.2d 385 (8th Cir. 1984) 36





STATUTES & RULES



18 U.S.C. 922(g) passim



18 U.S.C. 922(k) passim



18 U.S.C. 922(q) passim



18 U.S.C. 924(a)(1)(B) 26



18 U.S.C. 1202(a) 19, 21



22 D.C. Code 3204(a) 1



FED. R. CRIM. P. 52(b) 32



FED. R. EVID. 609(a)(2) passim







STATUTES AND RULES

Pertinent statutes and rules are set forth in the addendum to this brief.

JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. 3231.

STATEMENT OF THE CASE

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

On May 26, 1992, the federal grand jury sitting in the District of Columbia returned a three-count indictment charging Mr. xxxxx with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1), possession of a firearm with an obliterated, removed, changed and altered serial number, in violation of 18 U.S.C. 922(k), and carrying a pistol without a license, in violation of 22 D.C. Code 3204(a). [A. 9-10] (2) A jury trial commenced before the Honorable Stanley S. Harris on August 28, 1992. On September 1, 1992, the jury returned a verdict finding Mr. xxxxx guilty on all counts. On December 22, 1992, the district court sentenced Mr. xxxxx to 86 months imprisonment on Count 1, 60 months on Count 2, and 60 months on Count 3, to run concurrently, and 3 years of supervised release on Counts 1 and 2, to run concurrently. After the judgment was twice reissued (see n.1, supra), Mr. xxxxx filed a timely notice of appeal. [A. 50]

B. Statement of Facts

1. The Prosecution Case

The government presented its case through two police witnesses, Officers Anthony McGee and Efrain Soto. Officer McGee testified that on May 12, 1992, at approximately 3:00 a.m., he was on patrol in the front passenger seat of an unmarked police car travelling down Pennsylvania Avenue, S.E., toward Maryland. (8/28/92 Tr. 48-51) Two unmarked police cars were patrolling that area in response to several complaints of drug transactions and other disorderly conduct. (8/28/92 Tr. 49) Officer Littlejohn was driving the first car, which also contained Officers Soto, Warren, and Russell. (8/28/92 Tr. 50-51). Officer Regan drove the second car, with McGee in the front passenger seat and Officer Olfchevsky seated in the rear. (8/28/92 Tr. 50)

The first police car turned left onto Fort Davis Street and the second one followed about two or three seconds behind. (8/28/92 Tr. 52) As the second car turned onto Fort Davis Street, McGee observed an individual he identified as Mr. xxxxx take a step back from where he was standing on the sidewalk in front of 1820 Fort Davis Street. (8/28/92 Tr. 53-54) At that time, McGee did not see anyone standing next to the individual nor anyone else on that block. (8/28/92 Tr. 53-54) According to McGee, the individual appeared to be looking at the officers in the first car



when it turned onto the street. (8/28/92 Tr. 54-55) As the individual took a step back, McGee observed him reach into his right coat pocket, raise his hand into the air, and toss a silver-colored object. (8/28/92 Tr. 55) At that point, McGee was already out of the car and was running toward the object. (8/28/92 Tr. 55-56) McGee estimated that he was between four to five feet away when he saw the individual toss the object. (8/28/92 Tr. 57) McGee ran past the individual to where the object landed and recovered a .25 caliber Raven pistol with the serial number removed. (8/28/92 Tr. 57, 60-61)

When he made the observations of the individual identified as Mr. xxxxx, McGee was looking at the individual's back and hands. (8/28/92 Tr. 60) At the time, Mr. xxxxx was wearing a black leather coat, dark-colored pants, and a multi-colored shirt. (8/28/92 Tr. 57) McGee did not see any debris in the area from which the gun was recovered and the gun was dry when he picked it up off of the ground. McGee identified the gun and a set of five bullets as those he recovered from the ground. (8/28/92 Tr. 62; Gov. Ex. 1)

After McGee recovered the pistol, Mr. xxxxx was placed under arrest. (8/28/92 Tr. 64) At that time, McGee observed two other individuals in the immediate area, one of them standing about two feet away from Mr. xxxxx. (8/28/92 Tr. 64) Apparently, the two men were standing there when McGee observed the individual toss the gun but the officer failed to see them at that time. (8/28/92 Tr. 65) McGee testified that there were three streetlights on Pennsylvania Avenue and one on Fort Davis Street, as well as lights shining from inside the hallway of the apartment building. (8/28/92 Tr. 66; Gov. Ex. 3) McGee had never seen Mr. xxxxx before that night. (8/28/92 Tr. 72)

On the next business day after recovering the gun, McGee took it to be test-fired by a police engineer, who found it to be operable. (8/28/92 Tr. 62-63; Gov. Ex. 2) Additional police investigation indicated that Mr. xxxxx did not have a license to carry a gun and that the recovered gun was not registered. (8/28/92 Tr. 63; Gov. Ex. 2)

On cross-examination, McGee confirmed that he did not see the other men in the area where the gun was recovered until after Mr. xxxxx was arrested. He also admitted that when he testified before the grand jury in this case, he testified that he observed Mr. xxxxx throw an object to the ground but did not indicate that the object was tossed up into the air. (8/28/92 Tr. 105) According to McGee, Mr. xxxxx did not move except when McGee shoved him as he ran past him to recover the gun. (8/28/92 Tr. 88) McGee testified that he did not know if there were other people standing in the area before Mr. xxxxx was arrested and that he did not question the man who was standing two to three feet away from Mr. xxxxx. (8/28/92 Tr. 95) Finally, McGee did not submit the gun for fingerprint analysis because he had contaminated it when he recovered it from the ground. (8/28/92 Tr. 96, 114)

McGee recovered approximately $370.00 from Mr. xxxxx's person during a search incident to his arrest. (8/28/92 Tr. 98, 121) About ten minutes after Mr. xxxxx was arrested, a woman who identified herself as his girlfriend asked McGee about the arrest. (8/28/92 Tr. 120) McGee denied that any of the police officers detained, searched, or strip-searched any of the other men who were in the area at that time. (8/28/92 Tr. 98, 113-114)

Officer Soto's version of the incident differed from that of Officer McGee. Officer Soto was riding in the front passenger seat of the first of the two police cars that were patrolling in the Fort Davis Street area that evening. (8/28/92 Tr. 128) Soto testified that as the car in which he was riding made a left turn onto Fort Davis Street, he observed three men standing on the sidewalk to his right. (8/28/92 Tr. 129-130) Soto identified Mr. xxxxx as the individual who was standing closest to Pennsylvania Avenue. (8/28/92 Tr. 131) The other two men were standing about 15 feet and 42 feet away from xxxxx, respectively. (8/28/92 Tr. 131-132)

As the first police car drove past Mr. xxxxx, Soto saw him standing there on the sidewalk. (8/28/92 Tr. 133) The car then pulled up and stopped almost in front of the location where the man closest to Mr. xxxxx was standing. (8/28/92 Tr. 133) Unlike McGee, Soto did not observe Mr. xxxxx throw anything when the police car drove past him. Instead, Soto testified that it was only after he had gotten out of the car and started walking toward the men that he saw xxxxx throw to the side over his right shoulder, a small, silver gun. (8/28/92 Tr. 133-134) Soto approached xxxxx from the right and saw him holding the gun in his right hand, then take 1 to 2 steps back, and throw gun at a side angle onto the grass. (8/28/92 Tr. 147-148) Contrary to McGee's testimony, Soto testified that xxxxx threw the gun behind him rather than up in the air. (8/28/92 Tr. 149)

At that time, Soto alerted the officers of his observation and began running toward Mr. xxxxx. (8/28/92 Tr. 134) According to Soto, he was approximately 10 to 12 feet away from Mr. xxxxx when he saw him toss down the gun. (8/28/92 Tr. 134) Before Soto reached xxxxx, McGee pushed xxxxx from the back and Soto grabbed him and stayed with him while McGee recovered the gun. (8/28/92 Tr. 137) At that time, xxxxx was placed under arrest. (8/28/92 Tr. 137)

2. Stipulations

The parties entered into two written stipulations. First, they stipulated that the gun recovered by the police had an obliterated and altered serial number and that it was manufactured in California and, therefore, travelled in interstate commerce. [A. 14] Second, they agreed that Mr. xxxxx was previously convicted in the Superior Court of the District of Columbia of an offense punishable by imprisonment for a term exceeding one year. [A. 13]

3. The Defense Case

Mr. xxxxx called four witnesses to testify in his defense. First, Veronica May testified that she had known Mr. xxxxx for three years as they were members of the same church. (8/28/92 Tr. 162) In the early morning hours of May 12, 1992, as Ms. May was driving home from her parents' house, her car began to overheat. (8/28/92 Tr. 163) At that time, she noticed Mr. xxxxx and an individual she knew only as "Randy" (Randy Miller) walking a couple of blocks from Fort Davis Street. (8/28/92 Tr. 163-164) When May informed him that she was having car trouble, Mr. xxxxx told her that she could obtain water for the radiator at his girlfriend's apartment on Fort Davis Street. (8/28/92 Tr. 164-165) May then drove xxxxx and Miller to the apartment. (8/28/92 Tr. 164-165) When they arrived there, May observed a group of five or six young men standing around near the apartment building. (8/28/92 Tr. 165) xxxxx and Miller got out of the car and walked toward the apartment, with Miller perhaps a step or two behind. (8/28/92 Tr. 166-167) When they were about 5 feet from the front door of the apartment building, a police officer suddenly approached and called out to xxxxx to "come here." (8/28/92 Tr. 166-167) xxxxx turned around and went over to the officer. (8/28/92 Tr. 166) The officer then said something to xxxxx, grabbed him, and put him down on the ground. (8/28/92 Tr. 166)

May testified that she did not take her eyes off of xxxxx from the time that he got out of her car to the time he approached the apartment building. (8/28/92 Tr. 166) She did not see him with a gun or any silver object during that time. (8/28/92 Tr. 168) During the incident, she remained in her car, which was parked about 32 feet from where the police stopped Mr. xxxxx (8/28/92 Tr. 169)

When xxxxx was thrown to the ground, he started screaming. (8/28/92 Tr. 169-170) Miller then said something to the police and was put up against a tree. (8/28/92 Tr. 170) Ms. May observed about six police officers strip-search xxxxx, Miller, and two other young men who were standing out there. (8/28/92 Tr. 170-171) The police put the other young men in the group up against the wall. (8/28/92 Tr. 170)

On cross-examination, the prosecutor impeached Ms. May with a prior misdemeanor conviction for possession of stolen property. [A. 37-39] During May's cross-examination, the prosecutor declared that she was a "criminal" and he again referred to her prior conviction. [A. 40-41]

Mr. xxxxx's friend, Randy Miller, testified that he spent most of the day with Mr. xxxxx and was present when xxxxx was arrested that night. (8/31/92 Tr. 45) Miller generally confirmed the events as described by Ms. May up to the point at which he and Mr. xxxxx were stopped by the police as they were going up the steps to the apartment building. (8/31/92 Tr. 46-50) According to Miller, six or seven police officers ran up and stopped them as they were going up the steps. (8/31/92 Tr. 49) During this entire incident, Miller did not see Mr. xxxxx take a gun out of his pocket and throw it. (8/31/92 Tr. 49) In fact, Miller testified that xxxxx did not have a gun. (8/31/92 Tr. 49)

The police first grabbed Mr. xxxxx and backed him and Miller down to the sidewalk. (8/31/92 Tr. 49) They then grabbed Mr. xxxxx by the neck and bent him backwards and put Miller up against a tree. (8/31/92 Tr. 49-50) When he saw the police choking xxxxx as he lay on the ground, Miller began to yell and the police threw him down, as well. (8/31/92 Tr. 50) The police then strip-searched xxxxx, Miller, and a third person. (8/31/92 Tr. 50) Miller did not see Mr. xxxxx with a gun at any time that evening nor did he see the police recover a gun from anywhere in the area. (8/31/92 Tr. 50-51) The police stopped and searched all of the men standing there but let everyone go except Mr. xxxxx. (8/31/92 Tr. 52)

The other two defense witnesses resided at 1820 Fort Davis Street. Doreen Bunch testified that she looked out her window after hearing a noise and observed the police detaining five to six young men standing outside in front of the building. (8/31/92 Tr. 70) She also saw the police stop and then strip-search xxxxx and Miller. (8/31/92 Tr. 71, 78-79) Finally, she observed the police search the area with a flashlight for 5 to 10 minutes but did not see them pick up any objects. (8/31/92 Tr. 72)

LaShawn Cooper had lived with Mr. xxxxx in one of the apartments in the building for about three months. (8/31/92 Tr. 84-85) Although she did not observe Mr. xxxxx when he was arrested that night, she testified that she had never seen him with a gun. (8/31/92 Tr. 85-87)

4. The Government's Rebuttal

The prosecution presented two of the other police officers who were on patrol that night. Officer Warren testified that he observed three men standing on the street and two men in a parked truck near the intersection of Pennsylvania Avenue and Fort Davis Street. (8/31/92 Tr. 97-98) According to Warren, two men were standing almost directly in front of the walkway to the entrance of the apartment building and the third individual, who he identified as Mr. xxxxx, was standing further away from the walkway. (8/31/92 Tr. 98) Warren's attention was focused on the two men standing together rather than on Mr. xxxxx. (8/31/92 Tr. 99-100) Warren saw Officer Soto going toward xxxxx. (8/31/92 Tr. 100) When the police took the two individuals out of the truck, there were five civilians standing on the sidewalk. (8/31/92 Tr. 104) Warren denied that the police strip-searched any of the people in the area. (8/31/92 Tr. 104)

Officer Regan generally corroborated Warren's testimony regarding the number of persons in the area when the police arrived. (8/31/92 Tr. 106-109) Regan testified that he heard one of the officers yell "gun" but did not know which one. (8/31/92 Tr. 109-110) Like Warren, Regan denied that anyone was strip-searched that night in that location. (8/31/92 Tr. 110) Neither Warren nor Regan testified that they saw Mr. xxxxx throw down a gun or that any of the other officers recovered a gun from the area.

SUMMARY OF ARGUMENT

In this appeal, Mr. xxxxx attacks his conviction of three firearm possession offenses -- involving a single firearm -- on various grounds. First, he challenges the constitutionality of the felon in possession statute (18 U.S.C. 922(g)) on the grounds that it exceeds Congress's power under the Commerce Clause, as interpreted by the Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624 (1995). The Lopez Court invalidated the statute making it a federal offense to possess a firearm in a school zone (18 U.S.C. 922(q)) on the ground that Congress exceeded its authority when it enacted the statute because the prohibited conduct did not substantially affect commerce. Like

922(q), the felon in possession statute does not regulate commercial activity or substantially affect commerce. In fact, the language of the possessory component of the statute ("possess in or affecting commerce") does not require that such conduct substantially affect commerce, as required by Lopez. Although the legislative history of 922(g) and pre-Lopez decisions interpreting the jurisdictional element of the statute indicate that Congress intended only a minimal commerce nexus, i.e., evidence that the firearm moved at any time in interstate commerce, this requirement is no longer constitutionally adequate under the Lopez substantial effect test. Therefore, the felon in possession statute must be invalidated and Mr. xxxxx's conviction under that statute (Count One) must be reversed and that charge dismissed.

Next, Mr. xxxxx's conviction of possession of a firearm with a removed serial number, under 18 U.S.C. 922(k) (Count Two), also must be reversed under this Court's recent decision in United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995). Because the government failed to prove the essential element that Mr. xxxxx knew that the serial number had been removed from the gun and because the district court's instructions did not convey this element to the jury, the conviction on this count cannot stand.

Third, the district court failed to take adequate precautions in its management of Mr. xxxxx's joint trial involving a felon in possession count with other firearms charges. Although the parties stipulated to the prior conviction, as suggested by this Circuit's caselaw, the repeated references by the judge and prosecutor in the jury's presence to the felony conviction prejudiced the defense as to all three counts of the indictment. Moreover, the district court failed to give the jury an appropriate cautionary instruction as to the limited use it could make of the prior conviction. In sum, the court's mishandling of the 922(g) count constitutes plain error.

Fourth, the prosecutor improperly impeached the principal defense witness with a prior misdemeanor conviction of possession of stolen property. Although this Court has not decided whether such a conviction qualifies under FED. R. EVID. 609(a)(2), this circuit's decisions as to other theft-related offenses indicate that the misdemeanor conviction used for impeachment purposes here was not a crime of "dishonesty or false statement." In addition to the improper impeachment, the prosecutor conducted an abusive cross-examination of the same defense witness in which he called her a "criminal" and made an unnecessary reference to her misdemeanor conviction. To make matters worse, the district court committed reversible error in failing to give the jury an immediate limiting instruction after the impeachment occurred. Because the credibility of this witness was critical to Mr. xxxxx's defense, these errors substantially prejudiced his right to a fair trial.

Finally, the combination of the court's mishandling of the felon in possession count and the errors relating to the improper impeachment and cross-examination of the most significant defense witness devastated the defense. For all of these reasons, Mr. xxxxx's convictions should be reversed, the charges in Counts One and Two dismissed, and a new trial granted on Count Three.

ARGUMENT

I. CONGRESS EXCEEDED ITS COMMERCE CLAUSE POWER WHEN IT ENACTED THE FELON IN POSSESSION STATUTE, 18 U.S.C. 922(g)(1), BECAUSE THE CONDUCT REGULATED DOES NOT SUBSTANTIALLY AFFECT COMMERCE

A. Standard of Review

Whether the felon in possession statute is unconstitutional is, of course, a question of law, to be reviewed de novo. Cf. United States v. Doe, 968 F.2d 86, 88 (D.C. Cir. 1992) (whether federal regulation violates First Amendment is question of law, to be reviewed de novo).

Although this issue was not raised below, this Court is bound to consider any change in the law that has supervened since the entry of the trial court's judgment. Patterson v. Alabama, 294 U.S. 600, 607 (1935); United States v. Washington, 12 F.3d 1128, 1138-39 (D.C. Cir.), cert. denied, 115 S. Ct. 98 (1994). This doctrine is a corollary to the general principle that an appellate court should apply the law in effect at the time of appeal. Long after the district court's judgment was entered in this case, the Supreme Court in United States v. Lopez, 115 S. Ct. 1624 (1995), invalidated the statute making it a federal offense to possess a firearm in a school zone (18 U.S.C. 922(q)) on the ground that it exceeded Congress's authority to regulate under the Commerce Clause. The Lopez decision, which was the first time in approximately sixty years that the Court struck down commerce-based legislation, rendered unconstitutional the felon in possession statute, as well. Under the supervening-decision doctrine, this Court must consider this issue since the Lopez decision has changed the law in appellant's favor and the law was so well-settled at the time of trial that any attempt to challenge it would have been pointless. Washington, 12 F.3d at 1139 (additional citations omitted). Unless this Court considers the effect in this case of the Lopez decision, Mr. xxxxx would not receive the benefit of the favorable change in the law. See Pendergrast v. United States, 416 F.2d 776, 781 (D.C. Cir.) (appellate court is bound to consider change in law in making such disposition of cases justice requires), cert. denied, 395 U.S. 926 (1969).

B. Introduction

A fundamental tenet of our government is that any law passed by Congress must have as its basis some provision of the Constitution. The federal government is one of delegated and enumerated powers. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). All other powers have been retained by the states or the people. U.S. CONST. amend. X. In the area of criminal laws, federal crimes are solely creatures of statute. Dowling v. United States, 473 U.S. 207, 213 (1985). However, Congress's power to declare an act a crime ultimately must be grounded in some provision of the Constitution. United States v. Fox, 95 U.S. 670 (1878).

In Lopez, the Supreme Court held that Congress exceeded its power under the Commerce Clause when it enacted a criminal statute (18 U.S.C. 922(q)) prohibiting possession of a firearm within 1,000 feet of a school. In the instant case, Mr. xxxxx was found guilty of, inter alia, possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1). Taking the evidence in the light most favorable to the government, the prosecution proved at trial that Mr. xxxxx was a convicted felon and possessed a gun that had previously traveled in interstate commerce.

Like the statute invalidated in Lopez, 922(g)(1) neither regulates commercial activity nor contains a requirement that the gun possession be connected to interstate commerce. Instead, the statute proscribes intrastate possession of firearms by certain classes of people and requires the most minimal nexus with commerce, that is, that at some undetermined time the firearm travelled, no matter how briefly, in interstate commerce. See Scarborough v. United States, 431 U.S. 563, 575 (1977) (under felon in possession statute, proof that firearm previously traveled at some time in interstate commerce is sufficient to satisfy required nexus between possession and commerce). However, the Lopez decision makes it clear that Congress may regulate under its commerce power only those activities that substantially affect interstate commerce. 115 S. Ct. at 1629-1630. The possessory component (3) of 922(g)(1) ("possess in or affecting commerce") does not require that such conduct substantially affect interstate commerce. The ambiguous language of 922(g)(1), its legislative history, and the Lopez decision's clear explication of the constitutional requirements of commerce-based criminal legislation require that 922(g)(1) be invalidated.

C. The Lopez Decision Requires Invalidation of Mr. xxxxx's 922(g)(1) Conviction

1. The Lopez Decision

In Lopez, the Court outlined the structure of the Commerce Clause doctrine as follows:

[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.



115 S. Ct. at 1629-30 (emphasis added; internal citations and quotations omitted).

In this third area of Commerce Clause jurisprudence, the Lopez majority made its broadest holding. The Court admitted that its prior cases were not clear on the question whether Congress may regulate activity that merely affects interstate commerce or, alternatively, whether the permissible scope of federal regulation depends on a substantial effect on interstate commerce. In order to clarify this ambiguity, the Court ruled that within this third category, "the proper test requires an analysis of whether the regulated activity `substantially affects' interstate commerce." Id. at 1630. Applying this analysis to 922(q), the Court quickly rejected the first and second categories;

[S]ection 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce.

Id. Accordingly, the Court held that 922(q) could be sustained, if at all, only under the third category as a regulation of an activity that substantially affects interstate commerce. Id.

Applying the substantial effect test to the statute, the Court held that 922(q) is unconstitutional because it has nothing to do with commerce and is not part of a broader scheme of commercial regulation, it "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce," such as the requirement of proof that the gun possession was connected to interstate commerce, and Congress made no explicit findings regarding the effects on interstate commerce of gun possession in a school zone. Id. at 1630-32. The Court found the rationales offered by the government to establish that gun possession in a school zone does substantially affect interstate commerce insufficient as a basis for sustaining the constitutionality of the statute because, "if we were to accept the government's arguments, we are hard-pressed to posit any activity by any individual that Congress is without power to regulate." Id. at 1632. The Court added that "[t]o uphold the government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. at 1634.

2. Applicability of the Lopez Decision

to 922(g)(1)



Section 922(g)(1) reads in pertinent part:

(g) It shall be unlawful for any person --



(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year [ ] . . .



to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.



(emphasis added).

Unlike the provision struck down in Lopez, 922(g)(1) does contain an interstate commerce nexus that is an element of the offense. See United States v. Bass, 404 U.S. 336, 347 (1971) (government must prove as essential element of felon in possession offense that such possession was "in commerce or affecting commerce"). The Bass Court, which specifically left open the question of the constitutionality of the predecessor felon in possession statute (18 U.S.C. 1202(a)), interpreted the possession component of the statute to require an additional nexus to interstate commerce because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." Id. at 339 n.4, 349. Subsequently, in Scarborough, 431 U.S. at 566, the Court held that the government could prove the jurisdictional element by showing that the possessed firearm had traveled, at some time, in interstate commerce.

Notwithstanding this jurisdictional element, the text and legislative history of 922(g)(1) require that the statute fall within the third category of activity that Congress may regulate under its commerce power as interpreted by Lopez. Therefore, the statute must satisfy the substantial effect test to pass constitutional muster. Compare United States v. Robertson, 115 S. Ct. 1732, 1733 (1995) (Court does not decide whether gold mine's activities met RICO statute's requirement of "substantially affecting interstate commerce" where evidence clearly brought mine within statute's alternative criterion of "any enterprise engaged in . . . interstate or foreign commerce") with United States v. Hanna, No. 94-10131 (9th Cir. May 31, 1995) ( 922(g)'s requirement that firearm was, at some time, in interstate commerce sufficient to establish constitutionality under Commerce Clause, even in light of Lopez decision).

(a) The Text of the Possessory Component of 922(g)(1) Does Not Regulate An Activity That Substantially Affects

Interstate Commerce

Congress federalized the possession of a firearm by a felon by providing in the statute that the possession be in or affect commerce and that the firearm be shipped or transported in commerce. However, the possessory component of the statute does not prohibit a commercial activity, such as the shipping or transporting in commerce of a firearm. Instead, under the guise of a commerce regulation, the statute undertakes to regulate the intrastate possession of firearms by certain individuals. Under pre-Lopez decisions involving non-commercial activities, it was sufficient to show that the regulated objects, such as firearms, had been in interstate commerce at one time. See, e.g., Scarborough v. United States, 431 U.S. at 566. However, the Lopez Court condemned this overly-broad use of the Commerce Clause:

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.



115 S. Ct. at 1630-1631.

Like 922(q), the possessory component of 922(g)(1), notwithstanding Congress's attempt to include the jurisdictional element requiring proof of an interstate commerce connection, "is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can [it] be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or thing in interstate commerce." Lopez, 115 S. Ct. at 1630. Moreover, because the possessory component of the statute includes an "affecting commerce" element, which would be superfluous if the commerce link was provided by the other statutory terms, "shipped or transported," the statute falls within the third category of regulated activity and therefore must satisfy the substantial effect test set forth in Lopez.

(b) The Legislative History of 922(g)(1)

Indicates that Congress Intended to

Require Only a Minimal Nexus Between

Firearm Possession and Commerce



Section 922(g) combines the offenses of shipping, transporting, possession, and receipt of firearms by certain classes of "unqualified" persons, which previously were divided between 18 U.S.C. 922(g) and 18 U.S.C. App. 1202(a). Firearms Owners' Protection Act, P.L. No. 99-308, 102(6)(D), 100 Stat. 449, 452 (1986); H. Rep. No. 495, 99th Cong., 2d Sess. 23 (1986), Reprinted in 1986 U.S.C. Cong. & Ad. News 1327, 1349. In so doing, Congress incorporated only in the possessory component of the statute the "in or affecting commerce" language used in 1202(a) to modify the statutory terms "receives, possesses, or transports."

Although the legislative history of 922(g) and its predecessor statute, 1202(a), is brief, it supports the view that Congress only intended to require a minimal nexus between firearm possession and commerce. There is simply no indication that Congress was particularly concerned with the impact on commerce of gun possession. In fact, in introducing the legislation, Senator Long argued that Congress could, consistent with the Constitution, "outlaw the mere possession of weapons." 114 Cong. Rec. 13868 (1968). Long described the felon in possession provision as "simply setting forth the fact that anybody who has been convicted of a felony . . . is not permitted to possess a firearm." Id. at 13868-13869. Because of a concern about the constitutionality of a federal gun possession statute, Senator Long pointed to the fact that "many of the items in transactions reached by the broad swath of the Civil Rights Act of 1964 were reached by virtue of the power of Congress to regulate matters affecting commerce, not just to regulate interstate commerce itself." Id. at 13868. In Scarborough, the Supreme Court interpreted this legislative history as an indication that Congress intended to require no more than a minimal commerce nexus. 431 U.S. at 575. However, this minimal nexus is not constitutionally adequate under the Lopez substantial effect test.

D. Section 922(g)(1)'s Commerce Nexus Does Not Meet the Lopez Substantial Effect Test

It is clear that the Lopez decision significantly enhanced what is constitutionally required to establish an effect on commerce. The pre-Lopez view permitted virtually any interstate contact or effect to validate the required Commerce Clause connection. The Lopez Court rejected this reasoning and instead required a substantial effect on interstate commerce.

Section 922(g)(1), which requires only that the possessed firearm was, at some time, in interstate commerce, has, at most, an insubstantial effect on commerce. One can hypothesize a scenario in which an individual with a felony conviction obtains somewhere in Northern Virginia a gun that was manufactured there and simply walks across the state line into the District of Columbia, where he can be prosecuted under the federal felon in possession statute. Clearly, under those circumstances, the gun possession had virtually no effect on interstate commerce. As Justice Thomas's concurring opinion in Lopez recognizes, "the power to regulate `commerce' can by no means encompass authority over mere gun possession, anymore than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the fifty states. Our constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce." 115 S. Ct. at 1642. If Congress is permitted to regulate activity that has such minimal contact with commerce, it could regulate virtually any activity that had even the slightest connection to commerce. Whether such laws were constitutional before the Lopez decision, they clearly would be invalid now.

The Lopez Court rejected the legitimacy of an attenuated impact on interstate commerce as grounds for upholding the statute. Approval of the minimal commerce nexus required by 922(g)(1) would justify a general federal police power of the sort historically retained by the states. The Lopez Court found such an interpretation untenable as it would alter the balance between local and national government required by the concept of federalism. Lopez, 115 S. Ct. at 1631 n.3 (additional citations omitted). (4)

E. Conclusion

Primary responsibility for the regulation of firearm possession offenses traditionally has resided in the states and 922(g)(1) impinges unnecessarily upon this area. As the Lopez decision teaches, there are limits to such federalization in the name of the Commerce Clause:

The possession of a gun . . . is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. . . . to [uphold the statute] would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. (Internal citations omitted).



115 S. Ct. at 1634. Under these principles, the federal felon in possession statute is constitutionally infirm and must be invalidated. Therefore, Mr. xxxxx's conviction on Count One must be reversed and that charge against him dismissed.









II. DEFENDANT'S CONVICTION OF VIOLATING 18 U.S.C.

922(k) MUST BE REVERSED BECAUSE THE GOVERNMENT FAILED TO PROVE THAT HE KNEW THE SERIAL NUMBER OF THE GUN HE POSSESSED WAS REMOVED AND THE COURT'S INSTRUCTIONS DID NOT CONVEY THIS ELEMENT TO THE JURY



A. Standard of Review

This Court reviews the sufficiency of evidence for a conviction de novo to determine "whether, viewing the evidence in the light most favorable to the government, `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir.) (quoting Jackson v. Virginia, 443 U.S. 307 (1979)), cert. denied, 115 S. Ct. 2290 (1995).

In evaluating jury instructions, a reviewing court must "consider how reasonable jurors could have understood the charge as a whole." United States v. Edelin, 996 F.2d 1238, 1242 (D.C. Cir. 1993) (quoting Cage v. Louisiana, 498 U.S. 39, 40 (1990)), cert. denied, 114 S. Ct. 895 (1994). Thus, the court asks whether "there is a reasonable likelihood that the jury has applied the instruction in a way that violates the Constitution." Edelin, 996 F.2d at 1242 (quoting Estelle v. McGuire, ___ U.S. ____, ___ 112 S. Ct. 475, 482 (1991).

B. Mr. xxxxx's 922(k) Conviction Must Be Reversed Under This Court's Fennell Decision

Count Two of the indictment charged Mr. xxxxx with possession of a firearm which had the serial number removed, in violation of 18 U.S.C. 922(k). [A. 11-12] As to the prosecution's evidence on this count, Officer McGee testified that the gun he recovered had no serial number. (8/28/92 Tr. 60-61; Gov. Ex. 1) Additionally, the parties stipulated that the gun recovered by Officer McGee "had an obliterated and altered manufacturer's serial number . . . ." [A. 14] Taken in the light most favorable to the government, the evidence established that Mr. xxxxx took the gun out of his pocket and tossed it to the ground. The prosecution presented no evidence from which the jury could infer that Mr. xxxxx knew that the gun's serial number had been removed.

While this case has been pending appeal, this Court held in United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995), that by amending 18 U.S.C. 924(a)(1)(B), the penalty provision for

922(k), to authorize criminal penalties only for those who knowingly violate the statute, Congress required that persons convicted under 922(k) must have known that the serial number was removed. In Fennell, the government conceded that it was required to prove that element and that the instructions were wrong as a matter of law because they did not convey it to the jury. Because the government represented that it would not retry Mr. Fennell, this Court reversed his 922(k) conviction without addressing whether the evidence would have sufficed to convict him had the jury been properly instructed. Id. at 1301.

In the instant case, the court instructed the jury that the government was not required to prove that the defendant knew the serial number was removed but only that the defendant knowingly possessed the firearm. (8/31/92 Tr. 160) Although this instruction was consistent with this Court's decision in United States v. Dorsey, 591 F.2d 922, 937 n.19 (D.C. Cir. 1978), which had interpreted 922(k) as not requiring knowledge that the serial number was removed, the instruction does not comply with its recent decision in Fennell. (5)

Because the government presented no evidence to prove the knowledge element of 922(k) and the instructions were wrong as a matter of law because they failed to convey that element to the jury, Mr. xxxxx's conviction on Count Two must be reversed and that charge dismissed.

III. THE COURT FAILED TO TAKE ADEQUATE PRECAUTIONS TO PREVENT THE DEFENDANT FROM BEING IMPERMISSIBLY PREJUDICED BY HIS JOINT TRIAL OF OTHER FIREARMS CHARGES WITH A FELON IN POSSESSION FIREARM CHARGE



A. Standard of Review

This Court reviews the district court's management of a joint trial involving a felon in possession count together with other counts for an abuse of discretion. United States v. Dockery, 955 F.2d 50, 52 (D.C. Cir. 1992). Because Mr. xxxxx's trial counsel did not object to any of the references by the court or the prosecutor to the felony conviction and then failed to request a cautionary instruction, this issue is reviewed for plain error. See United States v. Fennell, 53 F.3d at 1301 (plain error review where defense counsel did not object to references by trial court and prosecutor to prior felony indictment).

B. Repeated References by the Court and Prosecutor

Before the Jury to Mr. xxxxx's Felony Conviction

Unduly Prejudiced the Defense



Although this Court has rejected a per se rule requiring severance of felon in possession counts, it has made clear that when an ex-felon charge is jointly tried with other charges, the trial court must proceed with a "high level of care" in order to protect the defendant from the potential for prejudice resulting from the introduction of what would otherwise be inadmissible prior crimes evidence. Dockery, 955 F.2d at 50-51; United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). As this Court noted in Daniels, "[t]here is . . . a high risk of undue prejudice whenever . . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible." 770 F.2d at 1116. This standard is based upon the Court's awareness that evidence of the defendant's felony conviction is highly prejudicial and can infect the jury's consideration of the other charges in the indictment. "The exclusion of other crimes evidence is not simply a `technicality' designed to prevent law enforcement personnel from doing their jobs. It reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence." Daniels, 770 F.2d at 1118. Thus, the overriding concern is that evidence of a prior felony conviction "weighs too much with the jury and . . . overpersuades them as to prejudge one with a bad general record and deny him a fair opportunity to defend against the particular charge." Michaelson v. United States, 335 U.S. 469, 476 (1948).

In the instant case, the district court did take some of the precautionary measures this Court recommended in Dockery. For example, the parties entered into a stipulation regarding Mr. xxxxx's prior conviction. [A. 13] In addition, the prosecutor avoided disclosing to the jury the underlying charge and did not introduce any extrinsic evidence about it. (6)

Although Mr. xxxxx's trial counsel apparently realized that using a stipulation regarding the prior felony conviction could protect his client against the introduction of prejudicial prior crimes evidence, counsel did not request severance of the felon in possession count. Similarly, defense counsel failed to object to the numerous references by the trial judge and the prosecutor in the jury's presence to Mr. xxxxx's felony conviction. In short, counsel appeared to be unaware of all of the parameters of the Dockery issue.

Although the trial court followed some of the suggestions in Dockery and Daniels to avoid disclosing to the jury the nature of Mr. xxxxx's felony conviction, it failed to take adequate measures to protect his fair trial rights. The stipulation and redacted indictment only have limited value in avoiding potential prejudice because they do not keep from the jury the fact that the defendant is a convicted felon. The jury in this case was reminded of Mr. xxxxx's felony conviction 8 separate times during the two-day trial. In addition to the stipulation regarding the felony conviction, the prosecutor referred to the conviction in both his opening statement and closing argument. [A. 19, 25, 42] The trial judge exacerbated the prejudice by repeating 4 times in his instructions to the jury regarding the elements of the felon in possession count, that Mr. xxxxx was charged with possession of a firearm after having been convicted of a felony. [A. 43-45] Repeated reminders that Mr. xxxxx was a felon were so inflammatory that they may well have swayed the jury to convict him of all of the charges in the indictment. Therefore, his convictions on all counts should be reversed. See United States v. Jones, 16 F.3d 487, 492-93 (2d Cir. 1994) (conviction reversed where trial court gave limiting instruction on felon in possession count that repeatedly informed jury that defendant was convicted felon).

C. The Court Failed to Give to the Jury a

Cautionary Instruction Limiting its

Consideration of Mr. xxxxx's Felony Conviction



This Court has indicated that appropriate cautionary instructions are one procedural safeguard the trial court can exercise when a felon in possession count is jointly tried with other charges. Dockery, 955 F.2d at 55; Daniels, 770 F.2d at 1118. Here, the district court offered no instructions cautioning the jury not to infer from Mr. xxxxx's prior felony conviction a propensity to commit crimes. Although the court did instruct the jury to give separate consideration to each count (8/31/92 Tr. 157), all three counts of the indictment arose from a single firearm possession. Therefore, the jury was likely to consider Mr. xxxxx's prior felony conviction, which but for the joinder of the felon in possession count would not otherwise have been admissible in regard to either of the other two charges, for an impermissible purpose. See United States v. Valentine, 706 F.2d 282, 290 n.7 (10th Cir. 1983) (where court denies severance of felon in possession count, limiting instructions on consideration to be given to prior conviction should be given to assure defendant "fairest trial possible"); Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir. 1981) (if severance of felon in possession count denied, court must utilize limiting instructions to cure prejudicial effect of joint trial).

Recently, this Court reiterated that instructions cautioning jurors against using a prior felony conviction for any purpose other than to establish that element of the 922(g)(1) offense will "provide additional protection of a defendant's rights in a joint trial of multiple counts . . ." Fennell, 53 F.3d at 1302 (citing Dockery, 955 F.2d at 55-56). By failing to caution the jury against inferring criminal propensity from Mr. xxxxx's prior felony conviction, the trial court did not exercise its discretion with "sufficiently scrupulous regard" for Mr. xxxxx's rights. See Daniels, 770 F.2d at 1118.

D. Conclusion

The trial court's handling of the 922(g) count was not sufficient to prevent the prejudice resulting from the repeated references to Mr. xxxxx's prior felony conviction. Because the district court failed to take adequate precautions to guard against undue prejudice from the joint trial of the felon in possession count, it abused its discretion. See Dockery, 955 F.2d at 56 (court abused discretion in not severing felon in possession count and redacting indictment insufficient to avoid undue prejudice). The trial court's errors in mishandling the felon in possession count were "obvious under current law [ ] and prejudicial." United States v. Washington, 12 F.3d at 1138 (internal quotations omitted). Therefore, because the court committed plain error, Mr. xxxxx's conviction on all three counts must be reversed.

IV. THE PROSECUTOR'S IMPROPER IMPEACHMENT AND CROSS-EXAMINATION OF A CRITICAL DEFENSE WITNESS, COMBINED WITH THE TRIAL COURT'S FAILURE TO GIVE THE JURY AN IMMEDIATE CAUTIONARY INSTRUCTION, REQUIRE REVERSAL OF MR. xxxxx'S CONVICTIONS



A. Standard of Review

Although defense counsel objected on the grounds of lack of notice to the use of a misdemeanor conviction to impeach a defense witness, counsel failed to object on the grounds that the misdemeanor conviction was not a crime involving dishonesty or false statement, as required by FED. R. EVID. 609(a)(2). Therefore, the plain error standard of review applies. Cf. United States v. Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995) (plain error applies where ground for unexplained objection was not obvious from context). Moreover, because defense counsel did not request an immediate cautionary instruction after the defense witness was impeached with her misdemeanor conviction, the plain error standard of review also applies to that issue. See FED. R. CRIM. P. 52(b). Similarly, plain error review applies to the prosecutor's improper cross-examination of the same defense witness, to which defense counsel failed to object. Because this issue involves three "obvious" legal errors which, individually and collectively, "seriously affect[ed] the fairness, integrity or public reputation" of the trial, reversal is required. United States v. Olano, 113 S. Ct. 1770, 1779 (1993).

B. Improper Impeachment Under FED. R. EVID. 609(a)(2)

Mr. xxxxx called four witnesses to testify in his defense. His principal witness, Veronica May, explained Mr. xxxxx's presence in the location where the police arrested him and directly contradicted the police testimony that xxxxx tossed down a gun as the police approached him. (8/28/92 Tr. 162-169) May specifically testified that she did not take her eyes off xxxxx during the time the police claim he threw down the gun and that she did not see him in possession of a gun during that time. (8/28/92 Tr. 166, 168) Since May was the only civilian eyewitness who was not actually involved in the incident itself (another defense witness, Randy Miller, also testified that he did not see Mr. xxxxx take a gun out of his pocket and throw it, but Miller was stopped and strip-searched by the police at the time of xxxxx's arrest), her credibility was critical to the defense case.

Not surprisingly, given the importance of Ms. May's testimony, the prosecutor sought to discredit her in any way possible. First, the prosecutor not only intended to impeach her with misdemeanor convictions but also wanted to establish through evidence of two prior arrests (a petty offense and a misdemeanor) that she was biased against the police. [A. 30-31] Apparently, the prosecutor believed that any prior conviction or even arrest was fair game because Ms. May "ha[d] testified about her own upstanding character, . . . -- she stated that she's employed; that she's working to become a court reporter; . . . and she presented herself as a fairly respectable individual. And in the absence of these prior convictions coming in, the jury would be solely left with that understanding and that would be incorrect or inaccurate or certainly an incomplete picture of the person that she is."

[A. 32-33] After an extended colloquy with the court and defense counsel, the prosecutor ultimately abandoned his efforts to introduce evidence of May's two arrests and two of her misdemeanor convictions. [A. 35, 37] However, the court permitted the prosecutor to impeach May with a prior misdemeanor conviction for possession of stolen property. [A. 35-39] Without making any reference in its ruling to FED. R. EVID. 609(a)(2), the court appeared to adopt the prosecutor's expansive view of the purposes for which a prior conviction can be used to impeach a witness when it stated: "I don't think that this woman could just simply take the stand and be totally exempt from any inquiry as to what may or may not be in her past." [A. 37-38]

1. A Misdemeanor Conviction of Possession of

Stolen Property Cannot Be Used to

Impeach Under Rule 609(a)(2)



Rule 609(a)(2) provides that "evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment." The impeaching party bears the burden of proving that a conviction offered under this provision involves "dishonesty or false statement," and failing to satisfy this requirement means the impeachment should be disallowed. See United States v. Givens, 767 F.2d 574, 579 n.1 (9th Cir.) (government failed to demonstrate that convictions for robbery and assault with deadly weapon qualified under Rule 609(a)(2)), cert. denied, 474 U.S. 953 (1985). In the instant case, because the government failed to prove that Ms. May's misdemeanor conviction of possession of stolen property involved "dishonesty or false statement," the court erred in permitting the impeachment.

Although this Court has not decided whether a misdemeanor conviction of possession of stolen property qualifies under Rule 609(a)(2), it has decided that various theft-related offenses do not. In United States v. Smith, 551 F.2d 348, 362-63 (D.C. Cir. 1976), the Court held that attempted robbery was not a crime of "dishonesty or false statement." In reaching its conclusion, the Court noted the clear expression of intent found in the Congressional Conference Committee Report, which stated in pertinent part:

By the phrase `dishonesty and false statement' the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.



H. R. Conf. Rep. No. 93-1597, 93d Cong., 2d Sess. 9, reprinted in [1974] U.S. Code Cong. & Admin. News pp. 7098, 7103. The Smith Court concluded that even in its broadest sense the term crimen falsi has "encompassed only those crimes characterized by an element of deceit or deliberate interference with a court's ascertainment of truth." 551 F.2d at 363. (7)

Applying the Smith analysis, this Court decided in United States v. Dorsey, 591 F.2d 922, 934-36 (D.C. Cir. 1978), that the crime of shoplifting under the Maryland Code did not involve the element of deceit required by Rule 609(a)(2)'s rigid standard. Because, "[a]t worst, this type of shoplifting offense, like many petit larceny crimes, involves stealth, which Smith makes clear is not the same as deceit." Id. at 935. See also United States v. Fearwell, 595 F.2d 771, 775-76 (D.C. Cir. 1978) (holding that crime of petit larceny does not involve dishonesty or false statement under Rule 609(a)(2)).

Other courts have agreed that theft and robbery are not crimes involving dishonesty or falsehood, and, therefore, cannot be used to impeach under Rule 609(a)(2). See Coursey v. Broadhurst, 888 F.2d 338, 342 (5th Cir. 1989) (crimes such as felony theft cannot be used to impeach under Rule 609(a)(2)); United States v. Givens, 767 F.2d at 579 n.1 (theft); United States v. Yeo, 739 F.2d 385, 387-88 (8th Cir. 1984) (theft); United States v. Grandmont, 680 F.2d 867, 870-71 (1st Cir. 1982) (robbery). The decisions of these courts, in combination with the various decisions of this Court, compel the conclusion that Rule 609(a)(2) must be confined, in the words of Smith, to a "narrow subset of crimes" that bear directly upon the witness's propensity to testify truthfully. 551 F.2d at 362.

Clearly, the elements of the crime of possession of stolen property do not include fraud, deceit, or any other manner of dishonesty. Moreover, the prosecution failed to offer any evidence that Ms. May's prior conviction involved deceit or fraud. For these reasons, the court erred in allowing the prosecution to impeach May with this conviction. While her impeachment was that of a defense witness rather than the accused, this Court has recognized the prejudicial effect of such impeachment:

There is less risk of prejudice when a defense witness other than the defendant is impeached through a prior conviction because the jury cannot directly infer the defendant's guilt from someone else's criminal record. The jury may, however, still presume guilt or lack of credibility of the defendant by association or may unduly discount the defense witness' testimony.

United States v. Lipscomb, 702 F.2d 1049, 1063 (D.C. Cir. 1983) (footnote omitted). Under the circumstances of this case, the improper impeachment of Mr. xxxxx's most critical defense witness substantially prejudiced his defense.





C. Improper Cross-Examination

The prejudicial effect of the impermissible impeachment of Ms. May was exacerbated by the prosecutor's argumentative and abusive cross-examination in which he called her a "criminal" and unnecessarily referred again to her prior conviction. Shortly after the prosecutor had impeached May with her misdemeanor conviction of possession of stolen property, the following exchange occurred:

Mr. Weiss (Prosecutor): Okay. And when he (Mr. xxxxx) was walking up to the apartment, to the front of the apartment building, he and Randy Miller looked like they

might be tenants in that building; is that correct?



Ms. May: Yeah.



Mr. Weiss: I mean, there was nothing about them that

would suggest anything illicit or criminal; is that your

testimony?



Ms. May: That's right. They didn't stand around. They

didn't conversate [sic] with -- well one of the guys said

something and Johnny -- I don't know what he said, but he

was letting him know that he couldn't talk to him and he

was going in the building.



Mr. Weiss: They didn't look like criminals. In fact, your testimony is they looked like residents of the

building that they were about to walk into, correct?

Yes or no?



Ms. May: Frankly, it's not a yes or no. Frankly, I don't know what a criminal looks like. I could be a

criminal.



Mr. Weiss: Well, you are a criminal.



Ms. May: I am not a criminal, Mr. Weiss. I have made

mistakes in my life, like everybody has.



Mr. Weiss: You were convicted of an offense; is that

correct?



Ms. May: Yes, I was, and I thank the police and I thank

a stern judge to have straightened me out when they did,

or I wouldn't be the woman I am today, and that's for sure.



[A. 39-41] (emphasis supplied).

The prosecutor's duty in a criminal prosecution is to seek justice. Berger v. United States, 295 U.S. 78, 88 (1935). By declaring during cross-examination that Ms. May was a "criminal" because of her prior conviction, the prosecutor misused as bad character evidence May's prior misdemeanor offense, which did not even qualify as an impeachable conviction under Rule 609(a)(2). See FED. R. EVID. 609 Advisory Committee's Note ("although the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached, the danger exists in other situations as well.") Because the prosecutor already had impeached May with the prior misdemeanor conviction, his argumentative assertion that she was a "criminal" impermissibly impugned her character. Cf. United States v. Blakey, 14 F.3d 1557, 1559-60 (11th Cir. 1994) (prosecutor's comment in closing argument that defendant was a "professional criminal" went outside evidence and improperly assailed his character).

The prosecutor's accusation appeared to be designed to browbeat or bully Ms. May. More importantly, the message that was conveyed to the jury by the prosecutor's misconduct -- that a person with a prior conviction remains a "criminal" even long after the offense occurred -- was particularly prejudicial in this case where Mr. xxxxx was charged with being a felon in possession of a firearm. Based upon the prosecutor's misuse of May's prior conviction, the jury could have held Mr. xxxxx's prior conviction against him, raising the concern that he was convicted on the gun possessory charges because of his status as a convicted felon. Cf. United States v. Mitchell, 1 F.3d 235, 238-41 (4th Cir. 1993) (prosecutor's improper references on cross-examination to defense witness's conviction and relationship to defendant, coupled with court's failure to give jury limiting instruction, required reversal). Given the nature of the charges against Mr. xxxxx and the trial court's failure to give the jury a limiting instruction as to the use of Mr. xxxxx's prior conviction (see Point III, supra), the prosecution's impermissible cross-examination of May misled the jury and substantially prejudiced the defense.

D. Failure to Give Limiting Instruction

Although the district court did instruct the jury in its final charge as to the limited effect to be given Ms. May's prior conviction [A. 43], it failed to give a limiting instruction immediately after the impeachment or after the prosecutor's misuse of the impeachment evidence during his cross-examination. The instruction came after the remainder of May's testimony, the testimony of three additional defense witnesses, the testimony of two government rebuttal witnesses, and the closing arguments of counsel.

This Court has long recognized the necessity of a cautionary instruction when evidence is admitted for a limited purpose. See United States v. Leonard, 494 F.2d 955, 964-65 (D.C. Cir. 1974) ("when evidence is admitted for the limited purpose of impeaching a witness, it is plain error, in the absence of manifest waiver, for the district court to omit an immediate cautioning instruction") (additional citations omitted). More recently, in United States v. Copelin, 996 F.2d 379, 384 (D.C. Cir. 1993), the Court held that although it was not per se plain error for a trial court to fail to offer an immediate limiting instruction whenever evidence is admitted only for impeachment purposes, "there is a huge presumption of plain error" if the court fails to do so. Therefore, only in "rare situations" where it was clear that the defendant was not substantially prejudiced by the impeachment evidence, would a limiting instruction not be necessary. Id. at 385. Given the significance of Ms. May's testimony, it is clear that this case does not present the "rare situation" in which the surrounding circumstances indicate that the defendant was not prejudiced by the introduction of his principal witness's prior conviction. See United States v. Brawner, 32 F.3d 602, 606 (D.C. Cir. 1994) ("rather ordinary case" does not present "rare situation" under Copelin even though defendant's convictions used to impeach him were more than ten years old; however, court holds Copelin inapplicable because convictions were introduced by defense rather than by prosecution). Therefore, under the circumstances of this case, the failure of the district court to offer a limiting instruction sua sponte immediately following the improper impeachment of Ms. May constitutes plain error.

E. Cumulative Effect of Errors

The cumulative effect of the prosecutor's improper impeachment and cross-examination of Ms. May and the district court's failure to give an immediate cautionary instruction substantially prejudiced Mr. xxxxx's right to a fair trial. Although each error was prejudicial in its own right, the combination of errors devastated the defense. Because each of the errors relating to the impeachment of Mr. xxxxx's principal defense witness was obvious under current law and prejudicial, taken collectively, the errors "seriously affect[ed] the fairness, integrity or public reputation" of the trial in this case. United States v. Olano, 113 S. Ct. at 1779. Therefore, Mr. xxxxx is entitled to a new trial.

V. THE INDIVIDUAL ERRORS AT TRIAL, TAKEN TOGETHER, COMBINED TO DEPRIVE THE DEFENDANT OF A FUNDAMENTALLY FAIR TRIAL

This court and other federal courts have reversed convictions where the cumulative effect of several trial errors, even if not individually reversible, has deprived the defendant of a fair trial. See, e.g., United States v. Dwyer, 843 F.2d 60, 65 (1st Cir. 1988) (reviewed cumulatively, three errors by trial court required reversal); Stimack v. Texas, 548 F.2d 588, 589 (5th Cir. 1977) (errors in combination may well have produced "a synergistic effect"); United States v. Freeman, 514 F.2d 1314, 1318 (D.C. Cir. 1975) (where numerous trial errors, reviewing court must weigh "cumulative impact"), vacated, 598 F.2d 306 (D.C. Cir. 1979).

In this case, the combination of the district court's mishandling of the felon in possession count and its errors relating to the impeachment and the cross-examination of the most critical defense witness worked a grave injustice upon Mr. xxxxx's right to a fair trial. The conclusion of this Court in Egan v. United States, 287 F. 958, 971 (D.C. Cir. 1923), is appropriate here as well:

While there is perhaps no single instance involving error so prejudicial as to warrant reversal, we are convinced that, considered as a whole, the rights of defendant were so prejudiced thereby as to deprive him of that fair and impartial trial which the Constitution and the law of the land accords to every citizen accused of the commission of crime.

The errors relating to the felon in possession count and the improper impeachment and cross-examination of the defense witness are particularly prejudicial because they involve the introduction of other crimes evidence without adequate procedural safeguards. Such evidence can adversely influence the jury's consideration of the charges in the indictment and, therefore, negatively impacts upon the presumption of innocence. These errors, each prejudicial in its own right, combined to multiply the prejudice to Mr. xxxxx. Because in the aggregate the errors made it impossible for Mr. xxxxx to be fairly tried, this case should be remanded for a new trial.

CONCLUSION

For the foregoing reasons, Mr. xxxxx's convictions should be reversed, the charges in Counts One and Two dismissed, and a new trial ordered on Count Three.





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 Brief for Appellant Johnny J. xxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



_________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Johnny J. xxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Section, Criminal Division, 555 Fourth Street, N.W., 10th Floor, Washington, D.C., 20001, this _____ day of July, 1995.



_________________________________

NEIL H. JAFFEE

Assistant Federal Public Defender



1. The district court filed the original judgment in this case on December 23, 1992. However, because appellant's counsel failed to file a timely notice of appeal, on December 15, 1993, the court granted appellant's motion pursuant to 28 U.S.C. 2255 to vacate and reimpose his sentence, and issued a new judgment. Apparently, defense counsel did not receive a copy of the court's order and again failed to file a notice of appeal. Thereafter, on May 19, 1994, the court granted appellant's second 2255 motion to vacate and reimpose his sentence, and again reissued the judgment. [A. 46] Defense counsel filed a timely notice of appeal from that judgment.

2. "A." refers to the appendix filed with this brief. Certain portions of the record not included in the appendix are cited in this brief. These include trial transcript excerpts (e.g., "8/28/92 Tr. ____") and trial exhibits (e.g., "Gov. Ex. ___")

3. Although the indictment charging Mr. xxxxx with violating

922(g)(1) alleged that he "receive[d] and possess[ed] a firearm," [A. 11], the trial court only instructed the jury as to the possession, and not the receipt, component of the statute. [A. 44-45; 8/31/92 Tr. 160]

4. D.C. Code 22-3203(a)(2) prohibits within the District of Columbia the unlawful possession of a pistol by a felon.

5. Under the supervening-decision doctrine, discussed more fully in Point I at pp. 13-14, supra, although this issue was not raised at trial, this Court is bound to consider it because of the supervening Fennell decision.

6. It is not clear from the record whether the jury received a copy of the indictment with Mr. xxxxx's prior felony conviction redacted from it. Although a redacted indictment appears in the district court file, the trial transcript does not indicate that it was provided to the jury in lieu of the original indictment.

7. The Smith Court did observe that while a particular crime may not qualify as a crime of dishonesty or false statement per se, it may be committed by fraudulent or deceitful means so as to bring it within the ambit of Rule 609(a)(2). However, in the present case, the prosecution failed to present any evidence suggesting that May's possession of stolen property conviction was perpetrated by deceitful or fraudulent means.