UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





NO. xxxxxxx



BRIEF FOR APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxx, Defendant-Appellant.





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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.

ISSUES PRESENTED FOR REVIEW

I. Whether the prosecutor's closing argument in which he made several references to the defendant's prior felony conviction and then urged the jury to "do the right thing" by returning a guilty verdict, substantially prejudiced Mr. xxxxxx's right to a fair trial.

II. Whether the district court erred in denying without a hearing defendant's new trial motion where the jury considered extraneous information in reaching a guilty verdict.

STATEMENT OF THE CASE

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

On October 17, 1996, a federal grand jury sitting in the District of Columbia returned a two-count indictment charging Mr. xxxxxx with unlawful possession of a firearm (Count One) and ammunition (Count Two) by a convicted felon, in violation of 18 U.S.C. 922(g)(1). [A. 11] (1) Thereafter, on January 30, 1997, a superseding indictment was returned charging Mr. xxxxxx with the same two offenses, but amending Count Two to charge Mr. xxxxxx with unlawfully possessing .38 caliber ammunition rather than .357 ammunition. [A. 13]

A jury trial commenced before the Honorable Louis F. Oberdorfer on February 4, 1997. On February 7, 1997, the jury returned a verdict finding Mr. xxxxxx guilty on both counts.

On February 14, 1997, Mr. xxxxxx filed a motion for new trial on the grounds of juror misconduct. [A. 15] Approximately two weeks later, the government filed a response in opposition to the motion. [A. 22] On March 4, 1997, the district court issued a Memorandum and Order denying the new trial motion without a hearing. [A. 27]

On June 24, 1997, the district court sentenced Mr. xxxxxx to 41 months of imprisonment on each count, to run concurrently; 3 years of supervised release on Count One and two years on Count Two, to run concurrently, and a special assessment of $200.00. After imposing sentence, the court issued a written order dismissing Count Two (the ammunition charge) on the grounds that Congress did not intend the simultaneous possession of a firearm and ammunition to be two distinct units of prosecution. [A. 30] Accordingly, the court ordered that Mr. xxxxxx be sentenced to 41 months of imprisonment, 3 years of supervised release, and a special assessment of $100.00. [A. 31] On June 30, 1997, the court entered its judgment. [A. 32] Thereafter, on July 3, 1997, Mr. xxxxxx filed a timely notice of appeal. [A. 38]

B. Statement of Facts

This case involves the police seizure of a .38 caliber revolver containing five rounds of ammunition from under the driver's side floor mat of Mr. xxxxxx's car. The parties stipulated that Mr. xxxxxx had previously been convicted of an offense punishable by more than one year imprisonment and that the gun and ammunition had been transported in interstate commerce. (2/5/97 a.m. Tr. 91; 2/5/97 p.m. Tr. 61) Many of the facts relating to the seizure of the gun were uncontested. Essentially, the only issue for the jury to decide was whether Mr. xxxxxx knowingly possessed the gun when the police found it underneath one of the floor mats in his car.

1. The Events Surrounding the Discovery of the Gun

On the evening of September 18, 1996, Mr. xxxxxx's car was parked in the back of his aunt's residence located at 2733 Langston Place, S.E., Washington, D.C. (2/5/97 p.m. Tr. 23-26) When Reynaldo Randall, who resided at that address with Mr. xxxxxx's aunt, arrived home from work, he saw some "guys" around Mr. xxxxxx's car. (Id. at 24-26) As Mr. Randall walked toward the car, they all ran away. (Id. at 26) At that time, Mr. Randall noticed that the back window was broken and that the trunk and hood of the car were open. (Id.) Mr. Randall called the police and then called Mr. xxxxxx. (Id. at 27) When he told Mr. xxxxxx that the car window had been broken, xxxxxx came over to look at the car. (Id.)

The following morning, Mr. xxxxxx used his car to drive his sixteen-year-old niece, Wendy Young, to school. (Id. at 51-52) Ms. Young sat in the front passenger seat next to Mr. xxxxxx. (Id. at 52) On the way to the bus stop where he intended to drop off his niece, Mr. xxxxxx picked up two other passengers, Elisica Goins and James Johnson, and agreed to drive them to the Department of Human Services ("DHS") so that Ms. Goins could obtain her food stamps. (Id. at 10-14) Mr. xxxxxx, who had known Ms. Goins for about a year, periodically drove her to different places, such as the grocery store or the hospital. (Id. at 10-13) On that day, Ms. Goins noticed that the left rear window of the car was broken. (Id. at 13) Mr. xxxxxx dropped off Ms. Goins at the DHS center on Florida Avenue and told her to meet him in the gas station across the street. (Id. at 14) After taking five or six minutes to transact her business inside the center, Ms. Goins left the building and walked across the street to meet Mr. xxxxxx. (Id. at 14-15)

At about that time -- shortly after 10:00 a.m. -- Metropolitan Police Department Officers John Gardner, Charles Brevard, and Debra Domino were riding in a squad car, heading down P Street toward Florida Avenue, N.E. (2/5/97 a.m. Tr. 16-19) At the corner of Florida Avenue and P Street, they turned into an Amoco gas station. (Id. at 18) According to Officer Gardner, they pulled into the gas station because Officer Brevard wanted to look at a vehicle parked there for some spare parts for his personal use. (Id. at 18) In contrast, Brevard claimed that he drove into the gas station because he saw a Nissan Maxima in the parking lot that appeared to have been stolen. (Id. at 44-45, 51-52)

In any event, as the police pulled into the gas station, Officer Gardner noticed Mr. xxxxxx's car, a burgundy Ford Granada, parked near a public telephone. (Id. at 18) When Gardner observed that one of the rear vent windows was completely broken out, the police stopped to investigate. (Id. at 18-22) (Gov. Ex. 1 and 2 (photographs of car with broken vent window)) As Gardner and Brevard walked over to the Granada, Mr. xxxxxx was in the driver's seat, Wendy Young was in the front passenger seat, and James Johnson was seated in the rear behind her. (Id. at 22-23; 2/5/97 p.m. Tr. 14-15, 52-53) As the police approached Mr. xxxxxx's car, neither Mr. xxxxxx nor the passengers made any sudden movements. (2/5/97 a.m. Tr. 47) Although both Ms. Goins and Ms. Young testified that no one smoked marijuana while they were in Mr. xxxxxx's car (2/5/97 p.m. Tr. 15, 53), Gardner and Brevard claimed that they smelled marijuana emanating from the car as they approached it. (2/5/97 a.m. Tr. 22-23, 46-47)

As the officers came closer to the car, Mr. xxxxxx attempted to hand over his license and registration. (2/5/97 a.m. Tr. 32-33, 58) The car was properly registered to Mr. xxxxxx. (Gov. Ex. 5 (motor vehicle print-out)) According to Brevard, who approached the car from the driver's side, before xxxxxx handed him his license, the rear passenger (Mr. Johnson) said that the marijuana was "all gone." (2/5/97 a.m. Tr. 46-47, 58) Brevard was the only officer who testified that he heard Johnson make this statement. Mr. xxxxxx did not say anything about marijuana and there was nothing on his person that connected him in any way with marijuana use. (Id.) Moreover, when the police searched the front and back of the car interior, they found no marijuana, paraphernalia, or other evidence of drug use. (Id. at 56)

At that time, Brevard ordered Mr. xxxxxx to step out of the car and Gardner went around to the rear of the vehicle. (Id. at 24, 47) xxxxxx, who used his left foot to drive because his right leg was immobile due to a physical disability (2/5/97 p.m. Tr. 40, 44), began to step out of the car. (2/5/97 a.m. Tr. 47) According to Brevard, as xxxxxx stepped out, one of his feet kicked the floor mat and exposed the butt of a gun. (Id. at 47-48) Brevard immediately grabbed him and placed him on the outside of the car. (Id. at 48) When Mr. xxxxxx saw the gun butt, he told Brevard that it was not his gun. (Id. at 54) While Brevard secured Mr. xxxxxx, Officer Domino lifted up the floor mat and confirmed that a gun was beneath it. (Id. at 48, 94) (Gov. Ex. 3 and 4 (photographs of gun inside car)) The gun was a .38 revolver containing five rounds of ammunition. (Id. at 49, 68) (Gov. Ex. 6 and 7 (gun and ammunition)) The police did not obtain any usable fingerprints from the gun. (Id. at 77-78)

When Ms. Goins returned to Mr. xxxxxx's car after she obtained her food stamps, she explained to the police officers that she had just been in the car and asked what had happened. (Id. at 36-37; 2/5/97 p.m. Tr. 14-15) By then, Mr. xxxxxx had been arrested and was in police custody. (2/5/97 a.m. Tr. 48; 2/5/97 p.m. Tr. 15)

2. Trial Events: The Prosecutor's Closing Argument

For his opening summation, the prosecutor used only five of his allotted total of twenty minutes for closing argument. As a result, the district court indicated it would consider giving surrebuttal argument to defense counsel. (2/6/97 Tr. 24) In the opening portion of his summation, the prosecutor made three references to Mr. xxxxxx's prior conviction. (Id. at 20-21)

During his lengthier rebuttal argument, the prosecutor made several references to the fact that the gun found in Mr. xxxxxx's car was "loaded." (Id. at 42, 47, 48) In the prosecutor's words, the police were doing their sworn duty in getting "a loaded gun off the streets." (Id. at 42) The prosecutor ended his rebuttal argument by admonishing the jury three times to "do the right thing" by returning a guilty verdict. (Id. at 48) At the conclusion of the prosecutor's rebuttal, the district court denied defense counsel's request for surrebuttal argument. (Id. at 48-51)

3. Post-Trial Events: The New Trial Motion

Shortly after the verdict was returned and the jury was discharged, one of the jurors contacted defense counsel and informed her that several jurors had injected extraneous prejudicial information into the jury's deliberations. [A. 20-21] In particular, some of the deliberating jurors expressed their belief that Mr. xxxxxx lived in a bad neighborhood and that people who lived in that area carried guns for protection. [A. 21]

After considering the government's opposition to the new trial motion, the district court denied the motion without a hearing, concluding that the statements made during deliberations did not constitute extrinsic evidence. Therefore, relying on FED. R. EVID. 606(b), the court determined that any evidence concerning such statements would not be competent to impeach the verdict. [A. 27-29]

SUMMARY OF ARGUMENT

The prosecutor's improper closing argument substantially prejudiced Mr. xxxxxx's right to a fair trial on charges of possession of a firearm and ammunition by an ex-felon, in violation of 18 U.S.C. 922(g)(1). During the trial, the parties stipulated to the ex-felon and interstate commerce elements of the charges. Although the prosecutor acknowledged that, in light of the stipulations, the only issue in dispute was whether Mr. xxxxxx knowingly possessed the gun and ammunition found under a floor mat in his car, the prosecutor's summation contained four references to Mr. xxxxxx's prior felony conviction. Having gratuitously reminded the jury several times that Mr. xxxxxx was a convicted felon, the prosecutor concluded his rebuttal argument by urging the jury three times to "do the right thing" by convicting Mr. xxxxxx.

By combining the references to Mr. xxxxxx's prior felony conviction with the suggestion that the jury had a duty to convict him, the prosecutor's remarks distracted the jury from its actual duty of impartially reviewing the evidence. Because the case was hotly contested -- the jury reached a verdict only after it received an anti-deadlock charge -- the prosecutor's improper summation casts doubt on the integrity of the jury's verdict.

In addition, the court erroneously denied without a hearing Mr. xxxxxx's new trial motion, which alleged that the jury considered extra-record facts that specifically related to Mr. xxxxxx's alleged firearms possession. An affidavit in support of the motion indicated that one of the jurors stated that during deliberations, several of the other jurors interjected that they knew Mr. xxxxxx lived in a bad neighborhood and that people who lived in that neighborhood carried guns for their own protection.

In denying the new trial motion without conducting any inquiry whatsoever, the district court erroneously concluded that because the allegations involved matters occurring during the jury's deliberations, the jurors' statements did not constitute either "extraneous prejudicial information" or an "outside influence" under FED. R. EVID. 606(b). Therefore, the consideration of such matters was barred by the rule. However, statements by deliberating jurors expressing personal knowledge about Mr. xxxxxx's neighborhood and the practice of people who live there to possess guns for their own protection, clearly fall under Rule 606(b)'s exception for extraneous information. This information was particularly prejudicial because the only disputed issue in the case was whether Mr. xxxxxx knowingly possessed the loaded gun found in his car.

The government failed to present any evidence rebutting the allegations in the new trial motion. Making the same analytical error as the district court, the prosecution concluded that the deliberating jurors' statements did not constitute extrinsic evidence. Because the prosecution did not present any evidence concerning the firearm practices of people who live in Mr. xxxxxx's neighborhood, the jury considered incriminating evidence that was not admitted at trial. Therefore, a new trial or, at a minimum, a remand for an evidentiary hearing into the jury misconduct allegations, is required. In any event, the jury's verdict -- tainted by the prosecutor's improper summation and the jurors' consideration of extraneous prejudicial information -- cannot stand.

ARGUMENT

I. THE PROSECUTOR MADE EXCESSIVE REFERENCES IN HIS CLOSING ARGUMENT TO MR. xxxxxx'S PRIOR FELONY CONVICTION AND THEN URGED THE JURY TO "DO THE RIGHT THING" BY RETURNING A GUILTY VERDICT

The government charged Mr. xxxxxx with possession of a firearm and ammunition by an ex-felon, in violation of 18 U.S.C.

922(g)(1). Prior to trial, the defense sought to bifurcate the ex-felon element of the charges or, in the alternative, to preclude the prosecution from introducing any evidence regarding the existence or nature of the prior felony conviction. The government opposed the motions but agreed to omit any references to the specific nature of Mr. xxxxxx's prior felony conviction. (1/7/97 Tr. 4-12; 2/4/97 Tr. 2-8)

In light of the prosecution's agreement to limit its evidence to establish the fact, rather than the nature, of the prior felony conviction, the district court denied the defense motions. (2/4/97 Tr. 6, 8) After the court's ruling, the parties entered into a stipulation that Mr. xxxxxx previously had been convicted of an offense punishable by more than one year imprisonment. The prosecutor read the stipulation to the jury as part of the government's case-in-chief. (2/5/97 a.m. Tr. 91)

In addition to presenting the stipulation to the jury, the government referred to Mr. xxxxxx's prior felony conviction five more times during the trial -- once in the prosecutor's opening statement and four additional times in his closing argument. (2) (2/5/97 a.m. Tr. 8; 2/6/97 Tr. 20-21, 48) Moreover, at the conclusion of his rebuttal summation, the prosecutor exhorted the jury three times to "do the right thing" by convicting Mr. xxxxxx. (2/6/97 Tr. 48) (3)

A. Standard of Review

A prosecutor's improper closing argument violates a defendant's due process rights and warrants reversal if it causes "substantial prejudice." United States v. Donato, 99 F.3d 426, 431 (D.C. Cir. 1997). In making this determination, this Court considers "the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks." United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985).

Because defense counsel did not object to the prosecutor's improper closing argument remarks, the plain error standard applies. FED. R. CRIM. P. 52(b). Under this standard, prosecutorial misconduct requires reversal if it "undermine[s] the fundamental fairness of the trial and contribute[s] to a miscarriage of justice." United States v. Perholtz, 842 F.2d 343, 361 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988)4.

B. The Prosecutor Made Unnecessary and Impermissible References to Mr. xxxxxx's Prior Felony Conviction

In his opening summation, the prosecutor argued that in light of the parties' stipulations, the only issue "in dispute" was whether Mr. xxxxxx knowingly possessed the gun and ammunition found in his car. (2/6/97 Tr. 20-21) However, in making this point, the prosecutor adverted three times to Mr. xxxxxx's prior felony conviction:

Now, I would submit to you that [possession of the gun] is the only issue that is in dispute at this time, because the next two elements -- the second one, that the firearm had been shipped or transported from one state to another, and the third element, that at the time the defendant possessed the firearm, the defendant had been previously convicted of a criminal offense punishable by a term of imprisonment exceeding one year -- the second and third element -- the fact that the firearm was transported into the District of Columbia from one state to another, and that Mr. xxxxxx has previously suffered a criminal conviction, punishable by in excess of a year, have been stipulated to.

Now, a stipulation carries -- it's undisputed evidence. It's without conflict. It's something that both parties agree to.

If you will remember, there were two stipulations that were read to you. The first one indicates that the parties hereby agree that Mr. xxxxxx has previously been convicted of a criminal offense, punishable by a term of imprisonment exceeding one year. That goes to the second element of the crime.

(2/6/97 Tr. 20-21) (emphasis added)

 

Then, at the very end of his rebuttal argument, the prosecutor reminded the jury one last time that Mr. xxxxxx was an ex-felon:

I am asking you to . . . return a verdict that says that Mr. xxxxxx knew the gun and the five rounds of live ammunition in it were inside his car, and that he possessed it, and, . . . at the time he possessed it, he had been convicted of a crime which is punishable in excess of one year.

(2/6/97 Tr. 48) (emphasis added)

Evidence that a defendant previously was convicted of a felony offense -- even where that evidence is admitted to prove the prior-conviction element of 922(g)(1) charges -- carries a risk that the jury will consider the fact of the prior conviction in determining whether the defendant is guilty of the present charges. The Supreme Court recently described the improper use of prior-conviction evidence as generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for a preventive conviction even if he should happen to be innocent momentarily).

Old Chief v. United States, 117 S. Ct. 644, 650 (1997).

Put another way, prior crimes evidence "weigh[s] too much with the jury and . . . overpersuade[s] them as to prejudge one with a bad general record and deny him a fair opportunity to defend against the particular charge." Michelson v. United States, 335 U.S. 469, 475-76 (1948) (footnotes omitted). As this Court explained in United States v. Jones, 67 F.3d 320 (D.C. Cir. 1995), evidence of a prior felony conviction always is prejudicial because "[i]t diverts the attention of the jury from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." Id. at 322 (citing United States v. James, 555 F.2d 992, 1000 (D.C. Cir. 1977) (additional citation omitted). Accordingly, this Court has repeatedly reminded prosecutors (as well as district judges) of their duty to avoid, or at least, minimize the undue prejudice resulting from the introduction of prior-conviction evidence. See, e.g., United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985); United States v. Dockery, 955 F.2d 50, 53 (D.C. Cir. 1992); United States v. Jones, 67 F.3d at 324; United States v. Myles, 96 F.3d 491, 495 (D.C. Cir. 1996). At the time of Mr. xxxxxx's trial, the government had the guidance of this Court's continual admonitions.

Although it was necessary for the government to establish that Mr. xxxxxx was a convicted felon, the parties' stipulation obviated the need to introduce evidence to prove that element. Since the prosecutor argued that the possessory element was the only one in dispute, a single reference to the stipulation would have sufficed, given the prosecutor's knowledge that the trial court was obligated to review all the elements in its jury instructions. Instead, the prosecutor referred four times to the prior-conviction element, drawing the jury's attention to the fact that Mr. xxxxxx was a convicted felon. In light of the stipulation, the prosecutor's remarks were gratuitous and created the risk of undue prejudice to Mr. xxxxxx's right to a fair trial. See Dockery, 955 F.2d at 54-56 (reversing convictions, including a 922(g) count, where government repeatedly introduced evidence of fact, although not nature, of defendant's prior felony conviction).

C. The Prosecutor Impermissibly Suggested That it Was the Jury's Duty to Convict Mr. xxxxxx

The prosecutor's rebuttal argument ended with a passionate plea for the jurors to "do the right thing" by convicting Mr. xxxxxx:

When I first spoke to you, I said that at the end of the case I was going to ask you to do one thing, I am going to ask you to do that right now. When I spoke to you, I said that I would ask you to return a verdict that's based on the evidence. I am going to ask you to do the right thing. . . .

I am asking you to do the right thing and return a verdict that says that Mr. xxxxxx knew the gun and the five rounds of live ammunition in it were inside his car, and that he possessed it, and at the time he possessed it, the gun had come into Washington, D.C. from another state, and at the time he possessed it, he had been convicted of a crime which is punishable in excess of one year.

Analyze all the evidence carefully and do the right thing. Thank you.

(2/6/97 Tr. 47-48) (emphasis added).

The prosecutor's exhortation to the jurors to "do the right thing" is tantamount to urging a jury to do its job or its duty. In United States v. Young, 470 U.S. 1, 18 (1985), the Supreme Court found improper a prosecutor's argument urging the jury to "do its job." The Court indicated that, "that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice . . . " Id. at 18 (citing applicable ABA Standards for Criminal Justice).

Other courts have reached similar results. In United States v. Mandelbaum, 803 F.2d 42, 43-44 (1st Cir. 1986), the court held that the prosecutor erred in urging the jury to do its "duty and return a verdict of guilty." Although it concluded that the prosecutor's improper remark did not constitute reversible error, the First Circuit stated that, "[t]here should be no suggestion that a jury has a duty to decide one way or the other; such an appeal is designed to stir passion and can only distract a jury from its actual duty: impartiality." Id. at 44. See also United States v. Manning, 23 F.3d 570, 572-75 (1st Cir. 1994) (reversing, in part because prosecutor's closing argument urging jury to "take responsibility" for themselves and their community was improper appeal to jurors to act in capacity other than as impartial arbiter of facts). In Kopf v. Skyrm, 993 F.2d 374, 380 n.7 (4th Cir. 1993), a police excessive force action brought under 42 U.S.C.

1983, an attorney for one of the defendant police officers urged the jury to forego the excessive force question and, in light of the evidence of the plaintiff's guilt in the underlying criminal case, to just "do the right thing." Finding that the plaintiff's guilt in the criminal case was not relevant to the excessive force inquiry, the Fourth Circuit reversed the jury verdict in favor of the defendant police officers. As to the "do the right thing" remark, the court simply stated that it "should not need to say that this argument was highly improper." Id. at 380 n.7.

Although this Court apparently has not had the occasion to address the propriety of a prosecutor's remarks suggesting that the jury had the "duty" or "responsibility" to convict, the Court has consistently held that a prosecutor may not make arguments intended to incite the jury to convict to preserve civil order. See, e.g., Brown v. United States, 370 F.2d 242, 246 (D.C. Cir. 1966) (finding improper prosecutor's remark that "this city must have martial law" if defendant not convicted); United States v. Hawkins, 595 F.2d 751, 754-55 (D.C. Cir. 1978) (prosecutor cannot equate guilty verdict with blow against drug problems), cert. denied, 441 U.S. 910 (1979); United States v. Monaghan, 741 F.2d at 1440 (prosecutor may not appeal to passions or prejudices of jury) (citing Viereck v. United States, 318 U.S. 236, 247-48 (1943)). Thus, a prosecutor may not incite a jury to convict in order to protect community values or deter future crime. Monaghan, 741 F.2d at 1441 ("the amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear.") (citing Berger v. United States, 295 U.S. 78, 88 (1935) (prosecutor "may strike hard blows, [but] he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.")).

The prosecutor's exhortation to "do the right thing" by convicting Mr. xxxxxx was an appeal to the jurors' sense of responsibility to do their civic duty by returning a guilty verdict. Because a jury has no duty to reach a certain decision in a case, by urging the jury that a guilty verdict was the "right thing" to do, the prosecutor misled the jury and distracted it from impartially reviewing the evidence in the case. The prosecutor's rhetoric -- which he repeated three times -- was particularly prejudicial in that it occurred at the very end of his rebuttal argument and constituted the very last words spoken to the jury by either counsel. (4)

D. The Cumulative Effect of the Prosecutor's Closing Argument Warrants Reversal of Mr. xxxxxx's Conviction

Taken together, the prosecutor's excessive references to Mr. xxxxxx's prior felony conviction combined with the prosecutor's exhortations to the jury to "do the right thing" by convicting Mr. xxxxxx, substantially prejudiced Mr. xxxxxx's defense. See United States v. Monaghan, 741 F.2d at 1443 (appellate court should consider severity of prosecutor's misconduct, measures taken to cure misconduct, and certainty of conviction absent improper arguments, in determining whether improper remarks substantially prejudiced defendant's trial). First, the improper remarks were not isolated -- the prosecutor made four references to Mr. xxxxxx's prior felony conviction and repeated three times that the jury should "do the right thing" by convicting Mr. xxxxxx. The improper remarks created a risk of undue prejudice because they effectively reminded the jury that Mr. xxxxxx was a convicted felon and then urged the jurors that it was their duty to convict him. Taken together, the prosecutor's statements only could have incited the jury to convict for the wrong reasons and distracted it from its real responsibility -- to dispassionately review the evidence and determine whether the government proved Mr. xxxxxx's guilt beyond a reasonable doubt.

Second, the district court failed to take any action to correct the prosecutor's improper statements. Because the prosecutor's remarks were so patently impermissible and highly prejudicial, the trial court was obligated to take some corrective measures even in the absence of a defense objection. See Viereck, 318 U.S. at 247-48 ("trial judge should have stopped counsel's discourse without waiting for an objection" where prosecutor's appeal to jurors' patriotism and duty in time of war was clearly improper).

Finally, this case was close and conviction was by no means certain in the absence of the prosecutor's remarks. Through the testimony of five witnesses, Mr. xxxxxx presented a full defense that he lacked knowledge of the gun someone else had placed under the floor mat in his car. In fact, the jury was deadlocked and only reached a verdict after the district court gave an anti-deadlock charge. (2/7/97 Tr. 2-8) Thus, it is quite likely that the prosecutor's improper arguments induced one or more jurors who otherwise would have been reluctant to convict. The government's evidence on the disputed issue of Mr. xxxxxx's knowledge that the gun was in the car was far from overwhelming. Under these circumstances, the Court cannot conclude with any degree of certainty that the prosecutor's improper summation did not affect the integrity of the jury's verdict. Therefore, reversal of Mr. xxxxxx's conviction is required.

II. THE DISTRICT COURT ERRED IN DENYING WITHOUT A HEARING DEFENDANT'S NEW TRIAL MOTION WHERE THE JURY CONSIDERED EXTRANEOUS INFORMATION IN REACHING A GUILTY VERDICT

A. Standard of Review

The district court's denial of Mr. xxxxxx's new trial motion without conducting a hearing or other inquiry is reviewed for abuse of discretion. United States v. White, 116 F.3d 903, 928-28 (D.C. Cir.) (district court's denial of hearing to investigate alleged juror misconduct reviewed for abuse of discretion), cert. denied, 118 S. Ct. 390 (1997); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984) (trial court's denial of new trial motion reviewed for abuse of discretion).

B. Evidence that the Jury Considered Specific Extra-Record Facts About Mr. xxxxxx was not Barred by Federal Rule of Evidence 606(b)

About two weeks after the return of the jury's guilty verdict, Mr. xxxxxx filed a motion for new trial on the grounds that the jury considered during deliberations extraneous and prejudicial information. [A. 15] Attached to the motion was a defense investigator's affidavit containing numerous statements made by Juror #15 to the investigator and defense counsel shortly after the verdict was announced and the jury was discharged. [A. 19-21] According to the affidavit, Juror #15 was "visibly distraught over the jury deliberations and subsequent verdict." [A. 20] In fact, the juror was "upset and crying" when she spoke to the defense team. [A. 21]

Juror #15 stated that she did not think there had been sufficient evidence to convict Mr. xxxxxx but the jury "had been influenced by preconceived ideas that were not in evidence." [A. 21] Specifically, she stated that several other jurors "expressed strong negative feelings about the neighborhood in which Mr. xxxxxx lived and believed that everyone in Southeast D.C. possessed guns for protection." [A. 21] In considering Mr. xxxxxx's defense theory that Mr. xxxxxx did not know that someone had left a gun in his car, some of the deliberating jurors had stated that they often checked their own vehicles for items left there by other people. [A. 21] According to the complaining juror, the other jurors' statements and conduct during deliberations "intimidated" her and "pressured" her into agreeing to a guilty verdict. [A. 21]

The government's opposition to the new trial motion argued that the statements of Juror #15 did not constitute extraneous prejudicial information and, therefore, were inadmissible to impeach the jury's verdict. [A. 22] In its "Memorandum and Order" denying the new trial motion, the district court summarized the allegations contained in the defense investigator's affidavit. [A. 27] However, the court failed to include in its summary Juror #15's statement that several deliberating jurors expressed their belief that people who lived in Mr. xxxxxx's neighborhood carried guns for their own protection. The court found that because each of Juror #15's allegations involved matters occurring during the jury's deliberations, the jurors' statements did not qualify as evidence of an extraneous influence. [A. 29] Therefore, the court concluded that no inquiry into Juror #15's statements was necessary because the consideration of such matters was barred by FED. R. EVID. 606(b). [A. 29]

Rule 606(b) bars juror testimony about any matter or statement occurring during the course of the jury's deliberations except evidence that the jury considered "extraneous prejudicial information" or that an "outside influence" was improperly brought to bear on a juror. (5) Thus, Rule 606(b)'s extraneous information exception permits a party to attack a verdict by proof that the jury improperly considered extra-record information.

However, extra-record facts do not constitute an extraneous influence if the information was obtained from the jurors' "common" or "regional" knowledge. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE 249, at 70-71, 75-76 (2d ed. 1994). Although jurors are expected to consider commonly known facts, including facts known to people who reside in a certain region, the boundary between general knowledge of commonly known facts and specialized knowledge of facts relating to the particular case and obtained outside the record, is "blurred and vague." Id. 249 at 75. See also JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE 606.04[5][b] at 606-40-41 (2d ed. 1997).

In United States v. McKinney, 429 F.2d 1019, 1022-23 (5th Cir.), aff'd on reh'g, 434 F.2d 831 (1970), cert. denied, 401 U.S. 922 (1971), Judge Goldberg drew the line as follows:

We cannot expunge from jury deliberations the subjective opinions of jurors, their additional expositions, or their philosophies. . . . Nevertheless, while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room . . . specific facts about the specific defendant then on trial.(emphasis in original).

According to Judge Friendly, the proper "inquiry is not whether the jurors . . . discussed any matters not of record but whether they discussed specific extra-record facts relating to the defendant, and if they did, whether there was a significant possibility that the defendant was prejudiced thereby." United States ex rel. Owen v. McMann, 435 F.2d 813, 818 n.5 (2d Cir. 1970) (emphasis in original) (affirming new trial grant where juror testimony and affidavits established that several jurors related their knowledge of "unfavorable incidents" in defendant's life), cert. denied, 402 U.S. 906 (1971).

While some of Juror #15's statements were properly barred under Rule 606(b), her statement that several deliberating jurors discussed specific personal knowledge about Mr. xxxxxx's neighborhood and the practice of people who live in that neighborhood to possess guns for their protection, falls under the rule's exception for "extraneous prejudicial information," which this Court has construed to include evidence considered by the jury but not admitted in court. United States v. Wilson, 534 F.2d 375, 378-79 (D.C. Cir. 1976) (citing Government of Virgin Islands v. Gereau, 523 F.2d 140, 148-49 (3d Cir. 1975)). The jurors' discussion of these extra-record facts also constitutes an impermissible use of specialized knowledge directly relating to Mr. xxxxxx and the facts of this case.

The decisions of several courts support this conclusion. In United States v. Swinton, 75 F.3d 374, 380-82 (8th Cir. 1996), the court held that a deliberating juror's statement that the defendant had a prior criminal record was "extraneous prejudicial information" and, therefore, was not barred under Rule 606(b). Similarly, in United States v. Perkins, 748 F.2d at 1533-34, the Eleventh Circuit found that a juror's remarks that he personally knew the defendant and had information about where a principal in the case lived, which contradicted the defendant's testimony on this point, constituted extrinsic evidence. See also Bibbins v. Dalsheim, 21 F.3d 13, 16-17 (2d Cir. 1994) (juror's statement that she resided in area in which drug transaction and arrest took place and that there were no open places of business there, making street identification of defendant more compelling in absence of other people, constituted extra-record information); Jeffries v. Blodgett, 5 F.3d 1180, 1189-91 (9th Cir. 1993) (juror's statement that defendant was convicted armed robber was extraneous information), cert. denied, 510 U.S. 1191 (1994); United States v. Blair, 444 F. Supp.1273, 1275 (D.D.C. 1978) (juror's statement that she personally knew codefendant who had pled guilty to one of charges facing defendant constituted extraneous information).

C. The District Court Erroneously Determined That No Inquiry Into Juror #15's Allegations Was Required

A defendant's Sixth Amendment right to a jury trial, which includes the right to confrontation, requires that the jury's verdict be based solely on the evidence produced at trial. Turner v. State of Louisiana, 379 U.S. 466, 472 (1965); Irvin v. Dowd, 366 U.S. 717, 722 (1961). Such fundamental rights are implicated when the jury considers incriminating evidence that was not admitted at trial. See McMann, 435 F.2d at 817-18. When jurors consider extraneous information, a new trial is required if the evidence poses a reasonable possibility of prejudice to the defendant. (6) United States v. Howard, 506 F.2d 865, 868 (5th Cir. 1975); United States v. Blair, 444 F. Supp. at 1275-76.

In its order denying Mr. xxxxxx's new trial motion, the district court concluded that "[f]urther investigation of this matter is not warranted because defendant has presented no evidence of an 'extraneous influence' upon deliberations. . . . Considerations of such matters [relating to Juror #15's statements] are plainly barred by Rule 606(b)." [A. 29] Thus, the court denied the motion without conducting any inquiry at all.

This Court's cases clearly hold that the trial court has broad discretion in deciding how to investigate juror misconduct claims. See, e.g., United States v. White, 116 F.3d at 929-930; Williams-Davis, 90 F.3d at 498-99. However, because Juror #15's statements did constitute evidence that the jury considered extraneous prejudicial information, contrary to the district court's erroneous conclusion, an inquiry was not precluded by Rule 606(b). In fact, under the circumstances of this case, the district court was required to conduct some inquiry into Juror #15's allegations.

Federal appellate courts have held that the trial court is obligated to conduct some investigation into a juror's allegations that the jury considered extra-record information in reaching its verdict. In United States v. Howard, 506 F.2d at 866-69, the Fifth Circuit reversed the district court's denial of a new trial motion, which was based on an allegation by one of the jurors that another juror stated during deliberations that the defendant "had been in trouble two or three times." Id. at 866. The motion stated that this extrinsic information was used to pressure the two hold-out jurors into agreeing to a guilty verdict. Id. The trial court denied the motion without a hearing on the grounds that the complaining juror was not a competent witness to impeach the verdict. Id. The court of appeals held that the assertion that the defendant had been "in trouble" before was an extrinsic fact that the jury should not have considered as no such evidence was admitted during the trial and the defendant, therefore, had no opportunity to confront and rebut the assertion. Id. On that basis, the court vacated the district court's denial of the new trial motion and remanded the case for an evidentiary hearing to inquire into the complaining juror's allegations. Id. at 869.

In United States v. Swinton, 75 F.3d at 381-82, the Eighth Circuit reached a similar result. In that case, the defendant filed a new trial motion based upon a juror's allegation that during deliberations, one of the other jurors stated that the defendant had a prior criminal record. Id. at 380. The district court denied the motion without a hearing on the grounds that the information about the defendant's prior conviction was not "extraneous" because it originated within the jury room. Id. Finding that the information concerning Mr. Swinton's prior conviction was "extraneous prejudicial information" within the meaning of Rule 606(b), the court of appeals remanded the case to the district court to hold an evidentiary hearing. Id. at 381-82.

In United States v. Navarro-Garcia, 926 F.2d 818, 821-22 (9th Cir. 1991), the court of appeals held that the defendant was entitled to an evidentiary hearing based on allegations that one of the deliberating jurors performed an out-of-court experiment that went directly to the critical issue in the case of the defendant's knowledge of the presence of drugs in her car trunk, and that the jury foreman discussed his personal experience when his own car was weighed down by his children sitting in the back seat. The court held that a juror's personal experiences may constitute extrinsic evidence "when a juror has personal knowledge regarding the parties or the issues involved in the litigation that might affect the verdict[,]" or when the personal experiences are considered by the jury in the absence of any record evidence on a given fact. Id. at 821-22 (additional citations omitted). Thus, the court concluded that the district court had abused its discretion in failing to hold an evidentiary hearing on the allegations of juror misconduct. Id. at 823.

Finally, in United States v. Perkins, 748 F.2d at 1533-34, the Eleventh Circuit held that the defendant was entitled to a new trial where one juror who was "especially committed" to a guilty verdict stated that he personally knew the defendant and knew where another principal in the case lived, disputing the defendant's testimony on this issue. The court of appeals found that this information constituted prejudicial extrinsic evidence which had been considered by the jury, thereby requiring a new trial. Id. at 1534. See also United States v. Blair, 444 F. Supp. at 1274-76 (district court granted new trial motion on grounds that one juror told others she knew co-defendant who pled guilty to one count of indictment charging joint drug offenses).

The decisions in these cases inform the resolution of this issue in Mr. xxxxxx's case. As in Howard, the information that people in Mr. xxxxxx's neighborhood carry guns for protection was used to pressure the complaining juror into voting for a guilty verdict. Like the extrinsic evidence in Howard and in the other cited cases, no evidence relating to Mr. xxxxxx's neighborhood or to gun activities in that area of the city was admitted during the trial. Moreover, as in Swinton, the district court below refused to conduct any investigation into Juror #15's allegations because the court incorrectly determined that any evidence would be barred under Rule 606(b).

The pertinent facts in Navarro-Garcia and in Perkins are analogous to those in the instant case. Like the extrinsic information in Navarro-Garcia, the jurors' alleged statements went directly to the critical issue of the defendant's knowledge of the presence of contraband in the defendant's car. In Perkins, the extrinsic evidence included a juror's personal knowledge of the address of a principal in the case, which differed from the defendant's testimony on that point. Therefore, the court of appeals found that this information could have affected the jurors' assessment of the defendant's credibility. 748 F.2d at 1534. Similarly, in this case, the jurors' asserted extrinsic knowledge that residents of Mr. xxxxxx's neighborhood possessed guns for their protection could have been used by the deliberating jurors to question Mr. xxxxxx's theory of defense that he did not knowingly possess the gun in his car.

The jury's consideration of the extraneous information in this case raises a reasonable possibility of prejudice to Mr. xxxxxx's right to a fair trial. According to Juror #15, the extraneous information, which went directly to the only disputed issue in the case, was used to pressure her into reaching a guilty verdict. No evidence was presented at trial to establish a motive for Mr. xxxxxx's alleged gun possession. Therefore, the extrinsic evidence that people in Mr. xxxxxx's neighborhood possessed firearms for their own protection was the only information establishing any motive for him to have a gun in his car.

Because the government's opposition to Mr. xxxxxx's new trial motion did not rebut through counter-affidavits or even cast doubt in any way on Juror #15's factual allegations, the introduction of the prejudicial extrinsic evidence into the jury's deliberations requires that Mr. xxxxxx be granted a new trial. See Perkins, 748 F.2d at 1534 (holding trial court abused discretion in denying new trial motion alleging that jury considered extraneous prejudicial information). In the alternative, the case should be remanded for the district court to inquire into the allegations of juror misconduct. See Swinton, 75 F.3d at 382 (remanding for evidentiary hearing).



CONCLUSION

For the foregoing reasons, Mr. xxxxxx's conviction must be reversed and his case remanded for a new trial or, in the alternative, for an evidentiary hearing on his new trial motion.

Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER









NEIL H. JAFFEE

Assistant Federal Public Defender

On Behalf of 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, Leon F. xxxxxx, 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 on January 7, 1998, I have served by hand two copies of the foregoing Brief for Appellant Leon F. xxxxxx and one copy of the accompanying Appendix on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.



NEIL H. JAFFEE

Assistant Federal Public Defender

1. "A." refers to pages of the Appendix filed with this brief. The references to the transcript of the district court proceedings are cited by date and page number (e.g., "2/6/97 Tr. ") and trial exhibits are cited by their exhibit number (e.g., "Gov. Ex. "). Pertinent portions of the transcript are contained in the Appendix behind Tab A.

2. The district court's jury charge contained at least six separate references to Mr. xxxxxx's prior felony conviction. (2/6/97 Tr. 60-65, 76-77).

3. The transcript of the prosecution and defense summations is contained in the Appendix behind Tab A.

4. The district court denied defense counsel's request, based on other grounds, for surrebuttal argument. (2/6/97 Tr. 48-51)

5. Rule 606(b) provides that:



Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. (Emphasis added).

6. Citing the Supreme Court's decision in Remmer v. United States, 347 U.S. 227, 229 (1954), some courts hold that extraneous information that is considered by a jury is "presumptively prejudicial." See, e.g., Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994); United States v. Perkins, 748 F.2d 1519, 1533-34 (11th Cir. 1984). However, a recent decision of this Court indicates that the burden is on the defendant to show extraneous information is prejudicial. United States v. Williams-Davis, 90 F.3d 490, 502-03 (1996), cert. denied, 117 S. Ct. 986 (1997).