ORAL ARGUMENT SCHEDULED FOR OCTOBER 26, 1995

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xxxxxxxxx

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxxxxxxxxx, Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANT

A. J. KRAMER

FEDERAL PUBLIC DEFENDER

NEIL H. JAFFEE

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

Cr. No. 92-217 (SSH)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

SUMMARY OF THE ARGUMENT 1

ARGUMENT 3

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 3

A. The Commerce Clause is Not

Procedurally Barred 3

B. Section 922(g)'s Jurisdictional Element

Fails to Meet the Lopez Substantial

Effect Test 7

II. THE COURT FAILED TO TAKE ADEQUATE PRECAUTIONS TO PREVENT THE DEFENDANT FROM BEING IMPERMISSIBLY PREJUDICED BY HIS JOINT TRIAL OF THE FIREARMS CHARGES WITH A FELON IN POSSESSION FIREARM CHARGE 11

A. The District Court's References to

the Prior Conviction 11

B. The Failure to Give a Limiting Instruction 12

III. 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. xxxxxxx'S CONVICTIONS 14

A. Improper Admission of Possession of

Stolen Property Misdemeanor Conviction 14

B. The Improper Cross-Examination Relating

to the Prior Conviction 16

C. Failure to Give Limiting Instruction 19

CONCLUSION 20

CERTIFICATE OF LENGTH 21

CERTIFICATE OF SERVICE 21

TABLE OF AUTHORITIES

CASES

*People v. Colon,

267 N.E. 2d 577 (N.Y. App.),

cert. denied, 402 U.S. 905 (1971) 15

Scarborough v. United States,

431 U.S. 563 (1977) 5, 7-10

United States v. Bass,

404 U.S. 336 (1971) 5, 7, 8

United States v. Childs,

598 F.2d 169 (D.C. Cir. 1979) 20

*United States v. Dockery,

955 F.2d 50 (D.C. Cir. 1992) 20

*United States v. Fennell,

53 F.3d 1296 (D.C. Cir. 1995) 13

United States v. Field,

625 F.2d 862 (9th Cir. 1980) 15

United States v. Hanna,

55 F.3d 1456 (9th Cir. 1995) 10

*United States v. Knowles,

29 F.3d 947 (5th Cir. 1994) 6. 8

United States v. Lipscomb,

702 F.2d 1049 (D.C. Cir. 1983) 16

*United States v. Lopez,

115 S. Ct. 1624 (1995) passim

United States v. Mitchell,

1 F.3d 235 (4th Cir. 1993) 19

United States v. Monaghan,

741 F.2d 1434 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1085 (1985) 18, 19

United States v. Murray,

751 F.2d 1528 (9th Cir. 1985) 15

United States v. Olano,

113 S. Ct. 1770 (1993) 7

United States v. Rhodes,

No. 92-3132 (D.C. Cir. August 22, 1995) 12, 13

United States v. Ryan,

41 F.3d 361 (8th Cir. 1994),

cert. denied, 115 S. Ct. 1793 (1995) 4

United States v. Smith,

551 F.2d 348 (D.C. Cir. 1976) 14

United States v. Stillwell,

900 F.2d 1104 (9th Cir.),

cert. denied, 498 U.S. 838 (1990) 4

*United States v. Washington,

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

cert. denied, 115 S. Ct. 98 (1994) 6

STATUTES AND RULES

18 U.S.C. § 844(i) 4

18 U.S.C. § 922(g) passim

18 U.S.C. § 922(q) 6

*FED. R. EVID. 609(a)(2) 2, 14, 15

SUMMARY OF ARGUMENT

The government argues that Mr. xxxxxxx's attack on the constitutionality under the Commerce Clause of 18 U.S.C. § 922(g) is barred because it was not raised in the district court. However, because defendant's argument that § 922(g) exceeds Congress's power under the Commerce Clause, in effect, challenges the district court's subject matter jurisdiction over the count of the indictment charging Mr. xxxxxxx with unlawful possession of a firearm by a convicted felon, the issue cannot be waived and therefore can be raised for the first time on appeal.

Moreover, this Court can consider the issue under the supervening-decision doctrine as the Supreme Court's decision in United States v. Lopez, 115 S. Ct. 1624 (1995), changed in Mr. xxxxxxx's favor the settled law regarding Congress's authority under the Commerce Clause. Even assuming the supervening-decision doctrine does not apply, this Court can review the issue for plain error. In this regard, although under pre-Lopez decisions it was sufficient under § 922(g) to show that a possessed firearm had travelled at some time in interstate commerce, a more significant nexus and effect on commerce is required under the Lopez substantial effect test. Therefore, the district court committed plain error in basing Mr. xxxxxxx's § 922(g) conviction on a statute that exceeds Congress's commerce power.

Although the government concedes that Mr. xxxxxxx's conviction under 18 U.S.C. § 922(k) for possession of a firearm with an obliterated or altered serial number must be reversed, it contends that the district court did not commit plain error in its treatment of the felon in possession count with other firearms charges in Mr. xxxxxxx's joint trial. Although the trial court did take some precautions to limit the potential prejudice resulting from such a joint trial, it made several unnecessary references in its jury instructions to the prior conviction and failed to give any limiting instruction regarding the prior conviction. Given that the prosecution's evidence against Mr. xxxxxxx was not overwhelming, the court's inadequate handling of the felon in possession count could have affected the verdict. Therefore, the court's mishandling of that count constitutes plain error.

Finally, the government maintains that the district court did not err in permitting the prosecutor to impeach the principal defense witness with her prior misdemeanor conviction for possession of stolen property. Contrary to the government's argument, the impeachment was improper under FED. R. EVID. 609(a)(2) because the misdemeanor offense did not involve dishonesty or false statement. The improper impeachment was exacerbated by the prosecutor's statements during the same defense witness's cross-examination in which he called her a "criminal" and unnecessarily referred again to her prior conviction. This prosecutorial misconduct constitutes plain error because the remarks were unduly prejudicial and could have affected the outcome of the case in that the witness's credibility was critical to Mr. xxxxxxx's defense. The district court did not mitigate this prejudice because it failed to give a cautionary instruction concerning the witness's prior conviction.

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 crucial defense witness constitutes plain error and requires the reversal of Mr. xxxxxxx's convictions, the dismissal of the charges in Counts One and Two, and a new trial 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. The Commerce Clause Claim is Not Procedurally Barred

The government argues that because Mr. xxxxxxx did not raise in the district court the issue that 18 U.S.C. § 922(g) violates the Commerce Clause, he has forfeited his claim on appeal. Gov. Br. 8-11. Although Mr. xxxxxxx acknowledges that this Court generally will not consider claims raised for the first time on appeal, two exceptions to that general rule apply in this case. Before discussing those exceptions, it is important to note that this is not a case in which the defendant took some action in the district court that can be deemed a waiver of this claim as, for example, where the defense requests a jury instruction and then argues on appeal that the instruction was erroneous. Thus, even if the Court determines that neither of the exceptions discussed below is applicable, at a minimum, the plain error standard should be applied.

First, as the government recognizes, challenges to subject matter jurisdiction cannot be waived and therefore can be raised for the first time on appeal. Gov. Br. 9 n.2. In this appeal, Mr. xxxxxxx argues that Congress did not have power under the Commerce Clause to proscribe possession of a firearm by a felon. Contrary to the government's argument (Gov. Br. 9 n.2), if § 922(g) exceeds Congress's power under the Commerce Clause, the district court could not exercise jurisdiction over the subject matter contained in the count of the indictment charging Mr. xxxxxxx with unlawful possession of a firearm by a convicted felon. See United States v. Stillwell, 900 F.2d 1104, 1110 n.2 (9th Cir.) (defendant's argument that Congress did not have power under Commerce Clause to proscribe arson of private residence is jurisdictional and therefore cannot be waived), cert. denied, 498 U.S. 838 (1990). The government's citation to United States v. Ryan, 41 F.3d 361, 363-64 (8th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1793 (1995), is not persuasive because that case is distinguishable on the basis that the defendant there failed to raise the question whether Congress had exceeded its power under the Commerce Clause. Therefore, Ryan's argument on appeal that the jury instructions did not satisfy the interstate commerce nexus requirement of 18 U.S.C. § 844(i), had no bearing on the district court's subject matter jurisdiction. Id. at 363-64.

The other applicable exception to the general rule that a federal appellate court will not consider an issue not passed upon below is the supervening-decision doctrine. See Def. Br. 13-14. The government argues that this doctrine is not applicable here because at the time of defendant's trial, there was no controlling authority in this circuit on the Commerce Clause issue raised on appeal by Mr. xxxxxxx and because the Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624 (1995), did not change the law in defendant's favor. Gov. Br. 10-11. This argument is simply wrong.

Although the question of whether § 922(g) was a valid exercise of Congress's power under the Commerce Clause had not been decided in this jurisdiction at the time of defendant's trial, there was controlling Supreme Court authority on an analogous, if not identical, point. See Scarborough v. United States, 431 U.S. 563, 566 (1977) (government can prove jurisdictional element of felon in possession offense by showing that possessed firearm had travelled at some time in interstate commerce); United States v. Bass, 404 U.S. 336, 347 (1971) (government must prove as essential element of felon in possession offense that possession was "in commerce or affecting commerce"). Moreover, prior to the Lopez decision, the Supreme Court had not struck down commerce-based legislation for approximately sixty years. Under these circumstances, it was reasonable for the defense in this case to conclude at the time of trial that the law interpreting Congress's power under the Commerce Clause was well-settled and that therefore an argument that § 922(g) exceeded that power, was foreclosed.

Additionally, although the Lopez Court invalidated a different statute (18 U.S.C. § 922(q)) than the one at issue here, it clarified the legal standard governing certain congressional regulations under the Commerce Clause. For statutes, like § 922(g), whose constitutional validity depends only on the effect of the regulated activity on interstate commerce, the question whether Congress has exceeded its grant of power requires an analysis of "whether the regulated activity `substantially affects' interstate commerce." Lopez, 115 S. Ct. at 1630. Because § 922(g) fits within this analytical framework, and because the "substantially affects" test requires a more significant impact on interstate commerce than pre-Lopez case law, the Lopez decision changed the law regarding Congress's authority under the Commerce Clause to enact § 922(g), in Mr. xxxxxxx's favor. For these reasons and in the interests of justice, this Court has the discretion to apply the supervening-decision doctrine to resolve this important constitutional issue.

Assuming that the supervening-decision doctrine does not apply, this Court still can review this issue for plain error. See United States v. Washington, 12 F.3d 1128, 1138-39 (D.C. Cir.) (distinguishing plain error and supervening-decision doctrine analyses), cert. denied, 115 S. Ct. 98 (1994). In United States v. Knowles, 29 F.3d 947, 950-52 (5th Cir. 1994), the court held that the defendant's conviction under 18 U.S.C. § 922(q) constituted plain error in light of the Lopez decision. In reaching this conclusion, the court indicated that the constitutional dimension of the error and the novelty of the Lopez decision militated in favor of allowing the defendant to raise a Lopez-based argument for the first time on appeal. Id. at 951. Although the error here, as in Knowles, was not "obvious," the Knowles court found that it was "self-evident that basing a conviction on an unconstitutional statute is both `plain' and an `error' as Olano [United States v. Olano, 113 S. Ct. 1770 (1993)] defines those terms." Id. The government cites no authority for the proposition that basing a conviction on an unconstitutional statutes is not plain error because the error was not "obvious" under existing law. Because the error in this case -- basing Mr. xxxxxxx's conviction on a statute that exceeds Congress's power under the Commerce Clause -- is a legal error that is "plain" and clearly prejudicial, Mr. xxxxxxx's conviction based on § 922(g) must be reversed.

B. Section 922(g)'s Jurisdictional Element Fails to Meet the Lopez Substantial Effect Test

Relying on the Supreme Court decisions in Bass and Scarborough, the government argues that § 922(g) regulates local activity, i.e., gun possession, that either affects interstate commerce itself or belongs to a class of activity that substantially affects commerce. Gov. Br. 13-14. Citing to Bass, the government contends that the legislative history of the predecessor felon in possession statute (18 U.S.C. § 1202(a)) demonstrates that Congress considered firearm possession by felons as part of a class of activities that is a burden or a threat on interstate commerce. Gov. Br. 14. Although Congress did make such a finding, the Bass Court itself considered such findings of `burdens' and `threats' as "simply stat[ing] Congress' view of the constitutional basis for its power to act; the findings do not tell us how much of Congress' perceived power was in fact invoked." 404 U.S. at 346 n.14.

Moreover, taken as a whole, the legislative history of § 1202(a) is ambiguous, at best. In fact, the senator who introduced the legislation remarked that "the amendment reaches the mere possession of guns without any showing of an interstate commerce nexus." Bass, 404 U.S. at 346 (emphasis added). Thus, notwithstanding the congressional findings, it is unclear whether § 1202(a) was intended to regulate only activities that substantially affected commerce. In Scarborough, the 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. The Court acknowledged that "Congress was not particularly concerned with the impact on commerce except as a means to ensure the constitutionality of [the statute]." Id. at 575 n.11. Thus, under the more exacting standards of the Lopez substantial effect test, the minimal nexus required by Bass and Scarborough, neither of which directly addresses the issue as to whether the statute was within Congress's authority under the Commerce Clause, has been undermined.

The government claims that the activity prohibited by § 922(g), that is, possession by a felon of a firearm that moved in interstate commerce, falls into the Lopez Court's second category of activity that Congress may regulate under its commerce power, `things in interstate commerce.' Gov. Br. 16 (quoting Lopez, 115 S. Ct. at 1629). Apparently, it is the government's position that Congress can regulate any "thing" that ever moved in commerce. Although that proposition was more defensible prior to the Lopez decision, it is clear that the Court now requires a more significant nexus and effect on commerce. 115 S. Ct. at 1630-31.

Contrary to the government's contention, the text and legislative history of § 922(g) require that the statute be placed within the Lopez Court's third category of commerce regulations, requiring that the activity substantially affect interstate commerce. See Def. Br. 19-22. Although § 922(g) contains ambiguous language for the showing required to establish the interstate commerce connection, because the possessory component of the statute includes an "affecting commerce" element, the statute falls more logically into the third rather than the second category. Moreover, in Scarborough, the Court interpreted the "affecting commerce" phrase as Congress's assertion of commerce power to cover activity affecting interstate commerce. 431 U.S. at 571. This is further indication that § 922(g) fits within the third category of regulations.

By providing in § 922(g) that the regulated activity "affect commerce," the interstate commerce nexus is an element of the offense to be determined by the fact finder. Although under pre-Lopez decisions it was sufficient to show that a possessed firearm had traveled, at some time, in interstate commerce, e.g., Scarborough, 431 U.S. at 566, even though the statute provides for a case-by-case jurisdictional nexus, the required threshold impact on commerce is too low under the Lopez substantial effect test. For example, in the instant case, the prosecution failed to present any evidence as to the movement of the firearm through interstate commerce. Instead, the government entered into a stipulation that the gun had been manufactured elsewhere. Moreover, because the jury was instructed in accordance with the Scarborough minimal nexus requirement, the jury was not required to find that the firearm possession substantially affected commerce. (8/31/92 Tr. 159-160)

Finally, the only decision by a court of appeals on this issue, United States v. Hanna, 55 F.3d 1456, 1461-62 n.2 (9th Cir. 1995), is not persuasive because it contains very little analysis of this issue and virtually no discussion of how § 922(g)'s jurisdictional element is sufficient to establish its constitutionality under the Commerce Clause in light of the Lopez decision. Similarly, the various district court decisions cited by the government (Gov. Br. 17) do not address the arguments made by Mr. xxxxxxx on this point. In contrast to the cited decisions, this Court can underscore the Lopez limitations on the federalization of firearms offenses in the name of the Commerce Clause by holding that the federal felon in possession statute is constitutionally infirm and must be invalidated.

II. 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. The District Court's References to the Prior Conviction

The government argues that by accepting the parties' stipulation regarding Mr. xxxxxxx's prior conviction and by not disclosing to the jury the nature of the underlying charge, the district court took adequate precautions to ensure that the defendant was not prejudiced by his joint trial of other firearms charges with the felon in possession count. Gov. Br. 23-25. Although these precautions are among those suggested by this Court in United States v. Dockery, 955 F.2d 50, 54 (D.C. Cir. 1992), they only had limited value in avoiding potential prejudice to Mr. xxxxxxx because they did not keep from the jury the fact that he was a convicted felon. Moreover, the repeated reminders that Mr. xxxxxxx was an ex-felon were inflammatory and highly prejudicial. Although the prosecutor's references to the prior conviction arguably were appropriate (see Gov. Br. 23-24), contrary to the government's claim, the district court's four references in its jury instructions to prior conviction were unnecessary and unduly prejudicial. [A. 43-45] In this regard, the court first reminded the jury of the prior conviction when it reviewed the charges in the indictment. In instructing on the essential elements of the offenses, the court made three additional references to the prior conviction. [A. 44-45] If the district judge had proceeded with a "high level of care," as required by Dockery, 955 F.2d at 50-51, it would have combined its instructions on the charges in the indictment and the elements of the offense so as to avoid unnecessary references to the prior conviction and it would have omitted any such reference from its instruction on the interstate commerce element of the felon in possession count. [A. 45] Instead, the court's instructions unnecessarily reminded the jurors that Mr. xxxxxxx was a convicted felon.

B. The Failure to Give a Limiting Instruction

While acknowledging this Court's recognition of the importance in a joint trial involving a felon in possession count of giving a limiting instruction regarding the prior conviction, the government contends that the failure to give such an instruction in this case is not error under this Court's recent decision in United States v. Rhodes, No. 92-3132, slip op. at 7-8 (D.C. Cir. August 22, 1995). Gov. Br. 24-25. Rhodes stands for to the proposition that a district court does not commit plain error when it fails to give an instruction sua sponte limiting the jury's use of impeachment testimony. That case then is distinguishable on its facts because there the prosecution presented impeachment testimony that otherwise would have been inadmissible hearsay. Thus, the omitted limiting instruction would have instructed the jury that the testimony was admitted solely for the purpose of assessing the witness's credibility and was not to be considered substantively. The failure to give such an instruction clearly is not as prejudicial to the defense as the failure to caution a jury against using a defendant's prior conviction as propensity evidence.

Moreover, although under Rhodes the failure to give a limiting instruction sua sponte may no longer be reversible error, in and of itself, this Court still can consider the lack of appropriate cautionary instructions in determining whether the district court took adequate precautions to guard against undue prejudice from the joint trial of the felon in possession count. See United States v. Fennell, 53 F.3d 1296, 1302 (D.C. Cir. 1995) (instructions cautioning jurors against using prior felony conviction for any purpose other than to establish that element of § 922(g)(1) offense provides additional protection of defendant's rights in joint trial involving felon in possession count). In the instant case, the trial court's unnecessary references to Mr. xxxxxxx's prior felony conviction combined with the failure to give any cautionary instruction at all constituted plain error.

Finally, the government argues that the evidence of Mr. xxxxxxx's guilt was so strong that the repeated references to his prior conviction and the lack of an appropriate cautionary instruction could not have affected the verdict. Gov. Br. 25. To the contrary, the evidence against Mr. xxxxxxx was not overwhelming in that he presented four defense witnesses who directly rebutted the testimony of the two principal police witnesses. Thus, the case was a close one requiring the jury to make various credibility determinations in evaluating the conflicting testimony of the opposing witnesses. Under these circumstances, the trial court's mishandling of the felon in possession count could have tipped the balance.

A. Improper Admission of Possession of Stolen Property Misdemeanor Conviction

The government contends that the district court did not err in permitting the prosecutor to impeach the principal defense witness, Veronica May, with her prior misdemeanor conviction in New York for possession of stolen property. Gov. Br. 28-30. In this regard, the government argues that the conviction was admissible under FED. R. EVID. 609(a)(2) as a crime that involved "dishonesty or false statement, regardless of the punishment." Gov. Br. 28. In making this argument, the government attempts to distinguish the offense of possession of stolen property from other theft and robbery offenses, recognizing that this Court has decided that various theft-related offenses do not qualify under Rule 609(a)(2). See United States v. Smith, 551 F.2d 348, 362-63 (D.C. Cir. 1976).

The conviction in question was for third degree possession of stolen property, classified by the New York State Penal Code as a class A misdemeanor. NY CLS Penal § 165.50 (1994). Contrary to the government's argument (Gov. Br. 29), the essence of the crime is the illegal possession of the stolen property, rather than any deceitful holding or concealing of the property. Commission Staff Notes to § 165.50 ("[i]t should not matter that possession resulted from buying or receiving or that it led to concealing or withholding; the gravamen of the crime is the illegal possession"). The government's citations in support of its argument are dubious. Gov. Br. 29. In People v. Colon, 267 N.E. 2d 577, 579 (N.Y. App.), cert. denied, 402 U.S. 905 (1971), the Court of Appeals of New York identified the elements of the crime of possession of stolen property as (1) the property must have been stolen by someone; (2) it must have been bought, received, concealed or withheld by a certain person, and (3) such person must have known that the property was stolen. Significantly, the court does not indicate or even imply that the offense contains an element of deceit. Moreover, the government's quote from United States v. Murray, 751 F.2d 1528 (9th Cir. 1985) (Gov. Br. 29), is taken completely out of context as that case, as well as the case from which the quote is actually taken (United States v. Field, 625 F.2d 862, 872 (9th Cir. 1980), involves an impeachment with a felony conviction for receiving stolen property, which does not implicate Rule 609(a)(2). Therefore, Murray is inapposite. Similarly, the government's quote from this Court's decision in Smith, 551 F.2d at 364 n.28 ("if an offense `is committed not by stealth but by fraudulent or deceitful means

. . . it may qualify as a crime involving dishonesty or false statement'") (Gov. Br. 29-30), does not support its argument because in the instant case, the prosecution failed to present any evidence that May's prior crime involved fraud or deceit.

Contrary to the government's position (Gov. Br. 30), the improper impeachment of the star defense witness could have affected the outcome of the trial because the case came down to a credibility determination between the government and defense witnesses. In citing United States v. Lipscomb, 702 F.2d 1049, 1063 (D.C. Cir. 1983), for the proposition that impeachment of a defense witness carries less risk of prejudice than impeachment of a defendant, the government fails to note that the Lipscomb court also recognized the prejudicial effect of impeachment of a defense witness. See Def. Br. 31. The prejudice Mr. xxxxxxx suffered as a result of the improper impeachment of Ms. May was not that the jury inferred his guilt from the fact that she had a prior conviction but, instead, that the jury's knowledge of her prior conviction may have caused it to unduly discount her testimony and therefore significantly weaken his defense.

B. The Improper Cross-Examination Relating to the Prior Conviction

The government claims that the prosecutor's statements during May's cross-examination in which he called her a "criminal" and unnecessarily referred again to her prior conviction, were "invited" by May's response to one of the prosecutor's questions. Gov. Br. 31. During cross-examination, the prosecutor asked May a line of questions regarding the appearances of Mr. xxxxxxx and his friend, Randy Miller, as they approached the entrance to an apartment building on the night of Mr. xxxxxxx's arrest. [A. 39-41] Apparently, the prosecutor was attempting to make the point that the police had no particular reason to arrest xxxxxxx and to stop Miller when he asked whether "there was [anything] about them that would suggest anything illicit or criminal[.]" [A. 40]

After May answered that question negatively, the prosecutor prefaced his next question with the statement, "[t]hey didn't look like criminals." [A. 41] He then asked whether they looked like residents of the apartment building and requested a "yes" or "no" answer. [A. 41] May apparently understood the question to include whether she thought xxxxxxx and Miller looked like "criminals." Because the question was so ambiguous, May sought clarification, responding that she could not give a "yes" or "no" answer because she did not know what a "criminal" looked like and that someone might think she could be a criminal. [A. 41] The prosecutor then asserted that May was, in fact, a "criminal," and when May denied that assertion, the prosecutor again referred to her prior conviction. [A. 41]

Clearly, May's response that she did not know what a "criminal" looked like and that she "could be," i.e., could look like, a "criminal," was an appropriate answer to the prosecutor's improper and ambiguous question. Because May's answer did not deny the existence of her prior conviction, it clearly did not "invite" the prosecutor to remind the jury of her conviction. In any event, her response certainly did not "invite" the prosecutor to characterize her as a "criminal." The government's argument on this point should be rejected.

Alternatively, the government claims that "[a]t worst, the prosecutor's statements were "fair comment" since the jury already had learned of May's prior conviction. Gov. Br. 31. Not surprisingly, the government fails to cite any authority for the proposition that there is a right to "fair comment" during cross-examination. The prosecutor's declaration that May was a "criminal" was not even in the form of a question. Moreover, the prosecutor's statement could not constitute "fair comment" because it erroneously assumes that a prior conviction brands someone a "criminal" for life. Thus, the assertion was an inaccurate characterization and was highly prejudicial because the term "criminal" connotes a bad and untrustworthy person who should not be believed. Because May's credibility was critical to Mr. xxxxxxx's defense, the prejudice is clear. Perhaps, the prosecutor was referring to May's other arrests and misdemeanor convictions which were not introduced into evidence. If so, the comment also was improper because it went outside the record.

The government contends that by bringing up May's conviction a second time, the prosecutor gave her the opportunity to explain it away. Gov. Br. 31. Although May did formulate what was arguably an effective response to the prosecutor's comments, it is speculative as to whether it lessened the effect of the improper impeachment. It is more likely that the damage caused by the prosecutor's improper characterization of May as a "criminal" could not be undone. In any event, it is clear that the seriousness of this prosecutorial misconduct is not lessened by the witness's efforts to defend herself against it.

The government maintains that even if the prosecutor's comments were erroneous, no plain error occurred because the remarks were not unduly prejudicial. Gov. Br. 32. Although the government cites United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985), in support of this proposition, the prosecution's evidence against the defendant in that case was overwhelming and the prosecutor's subsequent statements helped to mitigate the prejudice caused by the improper remarks. Thus, Monaghan is distinguishable on its facts as the prosecutor in the instant case did not mitigate the prejudice and the government's evidence against Mr. xxxxxxx was not overwhelming.

As pointed out in Mr. xxxxxxx's opening brief, the prosecutor's comment that Ms. May was a "criminal" was particularly prejudicial because of the felon in possession charge against Mr. xxxxxxx. Def. Br. 39. The jury could have inferred from the prosecutor's improper characterization of Ms. May that because of his prior conviction, Mr. xxxxxxx also was a "criminal," who therefore was more likely to have committed the other gun possessory charges against him.

C. Failure to Give Limiting Instruction

Although this Court's recent decision in United States Rhodes, No. 92-3132, slip op. at 7-8, requires the defense to request a limiting instruction, the district court's failure to give a cautionary instruction concerning May's prior conviction still can be considered in weighing the prejudice caused by the prosecutor's improper comments regarding that conviction. See United States v. Mitchell, 1 F.3d 235, 242-43 (4th Cir. 1993) (failure to instruct jury that defense witness's conviction could not used as substantive evidence of defendant's guilt contributed to prejudicial effect of prosecution's improper comments regarding conviction).

Finally, the government's citation to United States v. Childs, 598 F.2d 169, 175-76 (D.C. Cir. 1979) (Gov. Br. 33-34), is unpersuasive because that case is distinguishable on its facts. In Childs, the court failed to give a limiting instruction with respect to other crimes evidence that was introduced for the limited purpose of proving intent. Id. at 175-76. In holding that the failure to give such an instruction was not error, the Court found that there was no other purpose for which the jury could have considered the other crimes evidence. In contrast, as stated above, the jury in this case could have considered the prosecutor's improper remarks about Ms. May to apply to Mr. xxxxxxx, as well, because he also had a prior conviction. Thus, the combination of the prosecutor's erroneous remarks and the court's failure to give any cautionary, mitigating instruction caused substantial prejudice to Mr. xxxxxxx's defense.

CONCLUSION

For the foregoing reasons, as well as those set forth in defendant's opening brief, Mr. xxxxxxx's conviction 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 Reply Brief for Appellant Johnny J. xxxxxxx 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 Reply Brief for Appellant Johnny J. xxxxxxx was served, by first-class mail, postage-prepaid, upon Leanne Shaltis, Assistant United States Attorney, U.S. Attorney's Office for the District of Columbia, 555 Fourth Street, N.W., Room 10-435, Washington, DC 20001, this _____ day of September, 1995.

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NEIL H. JAFFEE

Assistant Federal Public Defender