UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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No.
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UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
xxxxxxxxxxxxxxxxx, Defendant-Appellant.
_________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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BRIEF FOR APPELLANT
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JURISDICTION
The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A notice of appeal having been timely filed, this Court has jurisdiction under 28 U.S.C. 1291.
ISSUES PRESENTED FOR REVIEW
I. Whether the court was without jurisdiction to enhance Mr. xxxxxxxx sentence to a mandatory term of 20 years in prison where the enhanced penalty statute cited in the government's "Information as to Prior Drug Conviction" gave notice of only a 10-year mandatory minimum.
II. Whether appellant's trial attorneys provided ineffective assistance of counsel in 1) failing to inform him that he was facing a mandatory minimum sentence of 20 years in prison if convicted at trial where, if he had known of his exposure, there is a reasonable probability he would have accepted a plea offer which could have resulted in a sentence of as short as 121 months; 2) failing to assert a privacy interest in the tote bag the police claimed to have seen him carrying over his shoulder so as to establish standing to suppress the evidence found inside the bag; 3) failing to object to the joint possession instruction; 4) failing to object to certain statements by the trial court which placed an impermissible burden of proof on appellant.
III. Whether the trial court erred in refusing to grant a mistrial when the prosecutor elicited highly damaging hearsay testimony that an unidentified man by whom appellant allegedly placed the tote bag told police that he and appellant were traveling together.
IV. Whether the trial court erred when the jury asked for reinstruction on the definition of possession by refusing to delete the unsupported joint possession portion of that instruction merely because the court thought defense counsel had been "negligent" in not catching the error during the initial charge to the jury.
V. Whether the trial court plainly erred by making comments that led the jury to expect appellant to prove his innocence where Mr. xxxxx subsequently rested without testifying or putting on any defense witnesses.
STATUTES AND RULES
Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below
On February 15, 1994, an indictment was filed (A. 12-13) (1) charging Mr. Jose xxxxx with possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii) (Count One), possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(ii) (Count Two) (2) and possession with intent to distribute heroin in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C) (Count Three).
Mr. David George was appointed to represent Mr. xxxxx. On September 13, 1994, a status hearing was held before the Honorable Thomas Penfield Jackson. The hearing was called at the request of the prosecutor, who wanted to clarify who would be representing Mr. xxxxx at trial (9/13 Tr. 2). The prosecutor explained that he had received numerous calls over the previous three months from an attorney in New York named Hermena Perlmutter, stating that she was now Mr. xxxxxxxx attorney and would be filing a notice of appearance, but that to the prosecutor's knowledge that had never been accomplished (9/13 Tr. 2-3). Mr. George had not returned his phone calls (9/13 Tr. 3). Mr. George confirmed that he was still counsel of record and was prepared to go forward on the trial date of October 11 (9/13 Tr. 3-4). Upon inquiry from the court, Mr. xxxxx stated through his Spanish-speaking interpreter that he had spoken with Ms. Perlmutter and that he was expecting her to visit him later in the week (9/13 Tr. 4).
On October 3, 1994, a status hearing was held before the Honorable Thomas A. Flannery, who had agreed to take the case over from Judge Jackson (10/3 Tr. 2). Again Mr. George stated that he would be ready for trial on October 11 (10/3 Tr. 2).
On October 5, 1994, the government filed an "Information as to Prior Drug Conviction" pursuant to 21 U.S.C. 851(a)(1), stating (A. 42-43) (emphasis added):
The United States of America, by its attorney, the United States Attorney for the District of Columbia, pursuant to the provisions of Title 21, United States Code, Section 851(a)(1), respectfully informs the Court that the defendant, Robert W. Montgomery, was convicted in 1991 of Attempted Criminal Sale of Controlled Substance in the Supreme Court of New YorkAs a result of this prior conviction, the defendant is subject to the enhanced penalties provided in Title 21, United States Code, Section 841(b)(1)(B)(iii).The case number in the caption includes Judge Jackson's, rather than Judge Flannery's, initials and the copy in the district court file has "Jackson, J." handwritten at the top of the page (A. 42). The certificate of service indicates that it was served on Mr. George by mail on October 5, 1994 (A. 43).
On October 11, 1994, Judge Flannery held a status conference at which Ms. Perlmutter entered her appearance as retained lead counsel and Mr. Lloyd Elsten entered his appearance as retained local counsel (10/11 Tr. 2; A. 44-45). Mr. George was apparently not present (10/11 Tr. 1). Mr. xxxxxxxx presence was waived (10/11 Tr. 3-4). Judge Flannery told counsel to be on call to begin as soon as his ongoing trial concluded (10/11 Tr. 3).
Trial commenced two days later on October 13, 1994. The court denied Mr. xxxxxxxx
suppression motion without an evidentiary hearing on the ground that defense counsel had
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