UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO. xxxxxxxxx





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 improper summation substantially prejudiced Mr. xxxxxx's right to a fair trial by suggesting that the government had predisposition evidence not presented to the jury and by appealing to the community passions and prejudices against drug dealers.

II. Whether the district court's acceptance of the verdict without disclosing that it was accompanied by a note recommending leniency, combined with defense counsel's failure to object or request any relief when the note was disclosed, deprived Mr. xxxxxx of an unqualified verdict and effective assistance of counsel.

STATEMENT OF THE CASE

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

On March 30, 1994, a federal grand jury sitting in the District of Columbia returned an indictment charging Mr. xxxxxx with two counts of distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(ii). The indictment also charged that cash proceeds of one of the drug distribution offenses be forfeited to the government, pursuant to 21 U.S.C. 853. [A. 24-26] (1)

A jury trial commenced before the Honorable Thomas A. Flannery on January 24, 1995. Because the jury was unable to reach a verdict, the court declared a mistrial on February 7, 1995. Thereafter, the case was retried before Judge Flannery on April 18, 1995. Once again, the jury was unable to reach a verdict and a mistrial was declared on May 5, 1995. The third trial before Judge Flannery commenced on November 13, 1995. On December 1, 1995, the jury returned a verdict finding Mr. xxxxxx guilty on both drug counts but finding against the government on the forfeiture allegations. [A. 54, 55] Simultaneously with the return of its verdict, the jury submitted a note, signed by eight jurors, recommending that Mr. xxxxxx "be given a lenient sentence." [A. 56]

On December 7, 1995, Mr. xxxxxx filed a motion for new trial. [A. 57-69] The government filed a response in opposition and the defense subsequently filed a reply to the prosecution's pleading. [A. 70-100; 101-07] On March 6, 1996, the court held a hearing on the new trial motion. Approximately two weeks later, the court issued an order accompanied by a Memorandum Opinion denying the motion. [A. 108-118]

On April 19, 1996, the court conducted a presentencing hearing and on May 3, 1996, the court sentenced Mr. xxxxxx to 168 months imprisonment on each count, to run concurrently; 4 years supervised release on each count, to be served concurrently; and a special assessment of $100. On May 7, 1996, the court entered its judgment and on May 20, 1996, filed an addendum to its judgment. [A. 119-122, 123-24] On May 13, 1996, Mr. xxxxxx filed a timely notice of appeal. [A. 125]

B. Statement of Facts

1. The Prosecution Case

In November 1992, DEA Agent Claude Shelley and three United States Park Police officers met with Brenda xxxxx, who at the time was serving a sentence in New Jersey on a fraud conviction. (11/15/95 Tr. 8-9, 102) The purpose of the meeting was to discuss whether xxxxx would be interested in assisting in the investigation of a suspected drug dealer, Reece Whiting, in return for financial assistance. (Id. at 8-11) xxxxx, who had a history of drug addiction and fraud convictions, had a close, personal relationship with Vernon xxxxxx for some seventeen years. (Id. at 98-99, 101-02, 120-121; 11/16/95 a.m. Tr. 47, 52-57; 11/16/95 p.m. Tr. 59-60) Therefore, when one of the Park Police officers mentioned xxxxxx as a possible target, xxxxx indicated that she would not work on a case involving xxxxxx because of familial ties to him. (11/15/95 Tr. 9-10, 108)

After another meeting, xxxxx agreed to assist in the Whiting investigation when she was released from prison. (Id. at 12-15, 111) Although xxxxx initially agreed to participate only in that investigation, she ultimately xxxxxxated against three other individuals, including Mr. xxxxxx. (Id. at 18-19, 111-13) For the period from April 1993 through August 1994, the DEA paid xxxxx approximately $35,000, which included her rent and other expenses. (Id. at 29) Moreover, in January 1995, she received an award payment in the amount of $100,000. (Id. at 29, 117-18)

After eight months of paying xxxxx's expenses without any results in the Whiting investigation, the DEA threatened to stop all payments to her. (Id. at 19-20, 55-58) When xxxxxx's name came up as an alternative target, xxxxx then agreed to xxxxxxate against him notwithstanding their long-term relationship and the substantial financial support xxxxxx had given her over the years. (Id. at 20-21, 58, 84, 121, 126; 11/16/95 p.m. Tr. 59-60)

On or about December 3, 1993, xxxxx met with Mr. xxxxxx and told him that she wanted to purchase cocaine for some people who distributed large amounts of drugs in the Richmond, Virginia area. (11/15/95 Tr. 22-23, 130-32; 11/16/95 p.m. Tr. 69-72) They had several unmonitored conversations concerning her purchase of drugs from him. (11/14/95 p.m. Tr. 27-37; 11/15/95 Tr. 67-68; 11/16/95 p.m. Tr. 83-84) On December 10, 1993, xxxxx made two telephone calls to Mr. xxxxxx to arrange a drug transaction. (11/13/95 p.m. Tr. 42-43) The two telephone conversations were recorded by the DEA. (Id. at 42-43, 47; Gov. Ex. 1-B) Later that evening, xxxxxx delivered to xxxxx at her apartment a half-kilogram of cocaine wrapped in Christmas paper in return for $14,000. (Id. at 44-46; 11/16/95 a.m. Tr. 7; Gov. Ex. 3-A) (2) Through the use of a hidden camera, DEA agents videotaped the transaction. (11/13/95 p.m. Tr. 43-44, 48, 50; Gov. Ex. 2-B, 2-D) The videotape was played for the jury. (11/14/95 a.m. Tr. 11-19)

In late March 1994, xxxxx was instructed to set up another transaction with Mr. xxxxxx. (11/14/95 a.m. Tr. 26-27) Various telephone conversations between xxxxx and xxxxxx regarding the second transaction were tape-recorded by the DEA. (Id. at 29-36; 11/16/95 a.m. Tr. 14-16; Gov. Ex. 6-B, 7-B, 8-B, 9-B) On March 28, 1994, Mr. xxxxxx delivered one kilogram of cocaine to xxxxx and undercover DEA Agent Lisa Somers in exchange for $26,000. (11/14/95 a.m. Tr. 37-49; Gov. Ex. 5-A, 19) After the exchange was completed, Mr. xxxxxx was arrested by DEA agents. (11/14/95 a.m. Tr. 48-49)

After Mr. xxxxxx's arrest, DEA agents executed a search warrant at his residence located at 517 Shady Glen Drive, Capitol Heights, Maryland. (11/20/95 a.m. Tr. 5) During their search, agents seized a backpack containing $18,000 in cash and various other items, including two scales. (Id. at 7-8, 10-11; Gov. Ex. 10, 11, 14, 15, 18)

According to rebuttal witness Norman Smith, who testified pursuant to a plea agreement, he sold quantities of cocaine ranging from a half-kilogram to two kilograms to Mr. xxxxxx about ten times in 1992-93. (11/28/95 a.m. Tr. 9-21, 42, 62-63; 11/28/95 p.m. Tr. (excerpt) (3) 39; Gov. Ex. 43) Smith refused to testify in either of Mr. xxxxxx's two previous mistrials but finally agreed to testify against him to avoid a possible life sentence in a pending case. (11/28/95 a.m. Tr. 88-91, 94; 11/28/95 p.m. Tr. (excerpt) 20-21) Smith claimed that in December 1993, he sold to Mr. xxxxxx a half-kilogram of cocaine wrapped in Christmas paper for $12,500. (11/28/95 a.m. Tr. 26-28) From September 7, 1992 to December 6, 1992, there were sixteen telephone calls from Smith's phone to Mr. xxxxxx's number. (11/28/95 p.m. Tr. 7-16, 28-29, 37) Of the sixteen calls, seven were "no answers" and the others ranged from fifteen seconds to one minute, forty-three seconds. (Id. at 30-31)

2. The Defense Case

Mr. xxxxxx, who was sixty three-years old at the time of his trial, met Brenda xxxxx around 1978 and they developed a romantic relationship, even contemplating marriage at one time. (11/20/95 a.m. Tr. 72-78) Over the years, they remained close friends as xxxxxx tried to help xxxxx overcome her drug addiction and frequently gave her money for food, rent, and other necessities for her children. (Id. at 78-83; 11/20/95 p.m. Tr. 2-3)

Beginning in June or July 1993, xxxxx periodically asked xxxxxx to supply her with drugs. (Id. at 17-18) Each time xxxxxx refused. (Id. at 18-19) Around October or November 1993, xxxxx really started pressing him for drugs. (Id. at 22) At that time, she told him that her life was in danger because she had given bad drugs to some people from Virginia who were now threatening to kill her if she did not provide them with good drugs. (Id. at 22-23) Although xxxxxx did not agree immediately to help xxxxx, her entreaties eventually convinced him that the Virginia drug dealers would kill her if she did not provide them with more drugs. (Id. at 24-29, 64-65) After asking several different friends, xxxxxx arranged to obtain the drugs from a fellow gambler he had known for over forty years. (Id. at 23, 34-35; 11/21/95 a.m. Tr. 28-29)

From late November until the first transaction in December, xxxxxx and xxxxx had numerous unmonitored conversations, both in person and by telephone, about the drugs she needed to repay the Virginia dealers. (11/20/95 p.m. Tr. 40-44) Finally, on December 10, 1993, after xxxxx told xxxxxx that one of the people from Virginia was in town to purchase the drugs, he delivered to xxxxx a package of cocaine wrapped in Christmas paper. (Id. at 44-57; 11/21/95 a.m. Tr. 28-29, 37-42, 61) When xxxxx told xxxxxx that the people in Virginia intended to cook the powder cocaine into crack, he explained to her that he had heard of a particular cooking method that resulted in a larger quantity of drugs for resale. (11/21/95 a.m. Tr. 9-14)

A couple of months after the first transaction, xxxxx told xxxxxx that she was still in trouble with the drug dealers in Virginia because his "recipe" for cooking the cocaine powder into crack proved to be wrong. (Id. at 80-81, 91-92) xxxxx urged xxxxxx to supply more drugs for the Virginia dealers. (Id. at 91-93) In March 1994, xxxxx continued to press xxxxxx by telling him that she was still in danger. (Id. at 93-95) xxxxxx finally succumbed to xxxxx's importuning and on March 28, 1994, delivered a kilogram of cocaine to her. (Id. at 94-95; 11/21/95 p.m. Tr. 41-50) After the transaction was completed, xxxxxx was arrested outside xxxxx's townhouse. (11/21/95 p.m. Tr. 71)





3. The Prosecutor's Closing Argument

Prior to the commencement of the third trial, the defense filed a motion in limine to preclude certain lines of cross-examination and improper summation used by the prosecutor in the previous trials. [A. 27-53] At a hearing on the motion in limine, the court admonished the prosecutor to confine his closing argument to the evidence. (11/9/95 Tr. 25-27) Thereafter, at the charge conference held immediately before closing arguments, the court reminded the prosecutor of its in limine rulings regarding the scope of summation. (11/29/95 Tr. 9-11) The court specifically admonished the prosecutor not to argue that "law enforcement had been trying to catch [xxxxxx] for a long time[,]" and the prosecutor conceded that "[t]here was no evidence of that." (Id. at 11)

Notwithstanding the court's admonitions, the prosecutor suggested in his rebuttal summation that the DEA had certain evidence -- excluded by the trial court and therefore not presented to the jury -- that Mr. xxxxxx was a drug dealer:

Since when does an informant -- and you have seen some of the paperwork, and I tried to move some of it into evidence -- why do you think the DEA is going to start a case on someone that they have intelligence information is not a drug dealer . . . . (Id. at 89) (emphasis added)

Mr. xxxxxx's defense would have you believe that the DEA is gonna open up a case . . . [e]ven though they know he is a nondrug dealer . . . . (Id. at 95)

The prosecutor also implied that xxxxxx was a dangerous person who would harm or even kill xxxxx. (Id. at 25, 29) The prosecutor asserted that by acting as an informant in this case, xxxxx had "put her life on the line." (Id. at 23) In this regard, the prosecutor questioned whether, if xxxxxx had found xxxxx wearing a body-wire to record their conversations, "[d]o you think you would see Ms. xxxxx here in court today?" (Id. at 25) Implying that xxxxxx would retaliate against xxxxx for her xxxxxxation with the government, the prosecutor again asked the jury to consider the reason that xxxxx was relocated and "can't come back [to Washington, D.C.]" (Id. at 91)

Finally, the prosecutor warned the jury that, if acquitted, Mr. xxxxxx would resume dealing drugs in the community:

What do you think he wants to do if he gets acquitted and walks out on the street? . . . What do you think he is going to do if he hits the street again? (Id. at 83)

Don't let a drug dealer back out of here. (Id. at 96)

After the prosecutor's rebuttal argument, the defense made two mistrial motions based upon the prosecutor's improper summation. (Id. at 100-01, 104-05) The district court denied both motions but indicated it would instruct the jury that the arguments of counsel were not evidence. (Id. at 101, 104-05)

4. The Jury's Verdict and Leniency Recommendation

After more than two days of deliberations, the jury arrived at a verdict. (12/1/95 Tr. 7) Simultaneously with its verdict, the jury submitted a note which read, "[w]e, the undersigned, recommend the defendant be given a lenient sentence." (Id. at 9) Eight of the twelve jurors signed the note. [A. 56]

Although the district court received the jury's note with its verdict, the trial judge informed counsel of the verdict but not of the note. (Id. at 7) When the guilty verdict was published, the defense requested the jury be polled. (Id. at 7-8) Through its clerk, the court instructed each of the jurors to, "please answer yes if your verdict is yes, no if it is not." (Id. at 8) Each juror answered "yes." (Id. at 8-9)

After polling the jury, the court for the first time revealed the note recommending leniency. (Id. at 9) Without consulting counsel, the court acknowledged the jury's recommendation and indicated that it would "take the note into consideration . . . ." (Id.) The court then instructed the jury on the pending forfeiture count and excused the jury. (Id. at 10-13)

Less than a week later, the defense filed a new trial motion, arguing that the district court had plainly erred in failing to advise counsel of the jury note before publishing the verdict and polling the jury and in accepting a verdict that might have been conditioned upon eight jurors' leniency recommendation. [A. 57-69] After conducting a hearing on the motion, the court took the matter under advisement. (3/6/96 Tr. 1-25) On March 19, 1996, the court issued an order and an accompanying Memorandum Opinion denying the new trial motion. [A. 108-118]







SUMMARY OF ARGUMENT

Vernon xxxxxx's trial was fundamentally unfair. Desperate to secure a conviction after two previous juries were unable to reach verdicts, the prosecutor stepped outside of his proper role as a federal official duty-bound to see that justice is done. To overcome Mr. xxxxxx's entrapment defense by proving that he was predisposed to commit the charged drug offenses, the prosecutor referred in his summation to excluded and inadmissible evidence indicating the government had information not presented to the jury concerning Mr. xxxxxx's previous drug trafficking. The prosecutor's remarks flew in the face of the district court's admonishments and evidentiary rulings. By specifically referring to highly prejudicial evidence that the trial court had excluded, the prosecutor vouched for the claim that the government possessed certain intelligence about Mr. xxxxxx's criminal activities. This was more than a hard blow -- it was a foul one. The prosecutor's comments were highly improper and clearly worked to the detriment of Mr. xxxxxx's entrapment defense, denying him his right to a fair trial and to due process of law.

The prosecutor compounded the prejudice by repeatedly appealing to the passions of the jurors and to their fear of drug dealing in their community. He consistently characterized Mr. xxxxxx as a "kilo drug dealer" who would continue to distribute drugs on the streets of the District of Columbia if not convicted. Because such impassioned appeals distort the role of the jury, this Court has rightfully condemned them.

This is not a case of overwhelming evidence against the accused, as the issues relating to the entrapment defense were hotly contested. The government's predisposition case rested essentially upon the credibility of an admitted crack addict who received a $100,000 reward from the DEA, and a drug dealer who agreed to testify against Mr. xxxxxx to avoid a life sentence. Under these circumstances, the combined effect of the prosecutorial misconduct requires a reversal.

In addition to denying two mistrial motions relating to the prosecutor's improper summation, the district court committed another serious error in accepting a guilty verdict without disclosing that it was accompanied by a note -- signed by eight jurors -- recommending leniency for Mr. xxxxxx. The exceptional circumstances relating to the verdict and leniency request required the court to inform counsel of the note, reject the verdict, and send the jury back for further deliberations after appropriate re-instructions. The court plainly erred in accepting the verdict without disclosing the note or conducting any inquiry whatsoever.

The court's error was exacerbated by defense counsel's failure to object to the verdict or request any relief once the leniency note was disclosed. Counsel's deficient performance rendered the result of the trial unreliable.

Each point of error in this case warrants reversal. But the combination of prosecutorial misconduct, acceptance of a questionable verdict, and ineffective assistance of counsel demands it. Mr. xxxxxx did not receive a fair trial or an unqualified jury verdict. His conviction should be reversed.

ARGUMENT

I. THE PROSECUTOR'S IMPROPER SUMMATION SUBSTANTIALLY PREJUDICED MR. xxxxxx'S RIGHT TO A FAIR TRIAL BY SUGGESTING THAT THE GOVERNMENT HAD PREDISPOSITION EVIDENCE NOT PRESENTED TO THE JURY AND BY APPEALING TO THE COMMUNITY PASSIONS AND PREJUDICES AGAINST DRUG DEALERS



A. Standard of Review

An improper prosecutorial summation warrants reversal if it causes substantial prejudice to the defendant. 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).

B. The Prosecutor Referred to Excluded and Inadmissible Evidence Indicating the Government Knew of Prior Drug Offenses Committed by Mr. xxxxxx

To satisfy its burden to prove beyond a reasonable doubt that Mr. xxxxxx was predisposed to commit the charged crimes, the government sought to prove that he was ready and willing to distribute drugs because he was, in fact, a drug dealer. However, the court precluded the prosecution from presenting evidence that the DEA had reason to suspect Mr. xxxxxx of drug activities before Brenda xxxxx agreed to xxxxxxate against him. In fact, the evidence established that the xxxxxx investigation did not begin until December 1993 -- about a year after xxxxx agreed to become an informant.

Although a U.S. Park Police officer asked xxxxx about Mr. xxxxxx at a joint meeting with DEA Agent Shelley in November 1992, xxxxx refused to provide any information because of her familial ties to xxxxxx. (11/15/95 Tr. 108) Moreover, Shelley testified that the DEA was not interested in xxxxxx at that time. (11/15/95 Tr. 9-10) Accordingly, the only predisposition evidence the government offered at trial was presented through the testimony of xxxxx and a xxxxxxating witness named Norman Smith. (See 11/15/95 Tr. 123-125; 11/28/95 a.m. Tr. 20-26) The evidence indicated that the DEA did not have this information until xxxxx and Smith agreed to inform against Mr. xxxxxx in December 1993 and April 1994, respectively. (11/15/95 Tr. 19-21; 11/28/95 a.m. Tr. 40-41)

In its motion in limine filed prior to trial, the defense argued that the government should be precluded from attempting to prove predisposition by cross-examining Mr. xxxxxx as to whether he had been under investigation by the DEA before the commencement of this case. [A. 29, 42-43] Although the prosecutor refrained from this line of cross-examination at trial, during the testimony of the first government witness, DEA Agent Lisa Somers, the prosecutor tried unsuccessfully to establish that the DEA had intelligence information on Mr. xxxxxx before xxxxx agreed to xxxxxxate in December 1993:







PROSECUTOR: Now, I want to go back to in December of 1993 there was a discussion, you refer to a meeting that occurred between you, Agent Shelley, and Ms. xxxxx, is that right?



SOMERS: That's correct.



PROSECUTOR: Okay. And at this meeting, was there the name of Vernon xxxxxx? Did that come up?



SOMERS: Yes, sir.



PROSECUTOR: And was it your intention in talking to Ms. xxxxx about Vernon xxxxxx to try to get her to force Vernon xxxxxx to sell drugs to the DEA?



SOMERS: No, sir.



PROSECUTOR: Was there a reason that name Vernon xxxxxx came up just out of thin air as a person who the DEA may be interested in? Or what happened?



DEFENSE

COUNSEL: Objection, Your Honor.



THE COURT: I'll sustain the objection.



PROSECUTOR: Did you broach the name of Vernon xxxxxx first or Agent Shelley?



SOMERS: No, sir.



PROSECUTOR: Now, was the DEA, were you as investigative agents, interested in pursuing Vernon xxxxxx in this investigation?



SOMERS: Yes, sir.



PROSECUTOR: And was your decision to initiate an investigation based upon intelligence information you had as investigative agents?



SOMERS: Yes, sir.





DEFENSE

COUNSEL: Your Honor, objection.



THE COURT: I'll sustain the objection.



PROSECUTOR: Your Honor, that doesn't go to the --



THE COURT: All right, come up to the bench.



(Bench conference on the record.)



THE COURT: Why do you have to get into all this now?



PROSECUTOR: This is a very relevant point, Your Honor, and it's this: the defense would have the jury believe that Brenda xxxxx decided to pluck Vernon xxxxxx out of thin air and say, "Here, I can deliver this man to you and make a non drug dealer into a drug dealer." But what, in fact, happens is a decision is made to initiate a case because the DEA determines that this is a worthy target to investigate. And that has to be made upon preliminary review and intelligence information as to a known possible target. They don't just --



THE COURT: We don't want this -- I don't want this jury to infer from the evidence at this stage of the game that xxxxxx is a known drug dealer, and you're getting dangerously close to that.



PROSECUTOR: I'm not going to bring out that information. That's why I phrased it like that, was it based, was there an intelligence information that caused you to initiate an investigation against xxxxxx.



DEFENSE

COUNSEL: What proof of there is that?



THE COURT: Well, that certainly infers [sic] that he is a known drug dealer, and I don't think that you want to get into that now.



PROSECUTOR: I'm not going to bring out he's a known drug dealer.



THE COURT: Well, implicitly or impliedly, when you state it in that fashion, the jury comes to the conclusion that this man is a known drug dealer. Otherwise why would they investigate him?



PROSECUTOR: But why is the contrary inference relevant for and the defense allowed to raise the contrary inference, which is we --



THE COURT: I think as this case develops, it's going to become quite clear that he's not an innocent person being induced the first time.



PROSECUTOR: Well, I wish you were on the jury, Your Honor, because we've had two hung juries on this case.



THE COURT: I know, but I don't think you should go into that at this time. All right.



(End of discussion at the bench.)

(11/14/95 p.m. Tr. 93-96) (emphasis added)

The prosecutor was permitted to mark for identification the DEA case initiation report (Gov. Ex. 32) and to ask Agent Somers some questions regarding the report. (Id. at 96-99) However, the trial judge essentially limited Somers's testimony to establish only that a report was prepared. (Id. at 97-98) Moreover, when the prosecutor offered to introduce into evidence a portion of the report, the court sustained defense counsel's objection to its admission. (11/15/95 Tr. 86-88)

In direct contravention of the district court's rulings excluding the improper and highly prejudicial evidence, the prosecutor essentially argued in his rebuttal summation that the DEA possessed certain evidence about xxxxxx's drug trafficking that was not presented to the jury ("Why do you think the DEA's going to start a case on someone that they have intelligence information is not a drug dealer . . . .") (11/29/95 Tr. 89) Referring to the excluded DEA case initiation report, the prosecutor indicated that he tried unsuccessfully to present the intelligence information to the jury (" . . . and you have seen some of the paper work, and I tried to move some of it into evidence . . .") (Id.)

Thus, the prosecutor did more than simply refer to facts not in evidence. By referring to inadmissible evidence that had been excluded by the trial court, he vouched for the claim that the government had intelligence about Mr. xxxxxx that had not been presented to the jury. In this way, the prosecutor made it appear that by objecting the defense had kept relevant and incriminating evidence from the jury. According to the prosecutor, not only was the defense hiding the ball, it also was misleading the jury by means of the excluded evidence ("Mr. xxxxxx's defense would have you believe that the DEA is gonna open up a case . . . [e]ven though they know he is a nondrug dealer . . . .") (Id. at 95)

Although an error in a prosecutor's summation only rarely warrants reversal, United States v. Donato, 99 F.3d at 432, this Court "has long made clear that the government must take care to ensure that statements made in . . . closing arguments to the jury are supported by evidence introduced at trial." United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir.), cert. denied, 116 S. Ct. 1867 (1996) (citing Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)). The Court also has emphasized the prosecutor's duty to comply with the district court's rulings. See Small, 74 F.3d at 1283 (prosecutor's references in opening and closing statements to inadmissible evidence relating to law enforcement investigative techniques conflicted with trial court's instructions). This Court has reversed convictions where prosecutors referred to evidence not admitted at trial, particularly when the evidence was inadmissible or excluded.

In United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993), the prosecutor made two remarks in rebuttal argument referring, without any basis in the record, to evidence of prior drug dealing by the defendant. In holding that the improper summation constituted reversible error, the court noted, " . . . we can detect no purpose for the comments other than an impermissible one -- to convey to the jury that the prosecution knew of crimes, other than the one charged, committed by Foster before [the date of the charged offense] and even on that very day or morning." Id. at 555. Similarly, in the instant case, the prosecutor's purpose in referring to DEA information about Mr. xxxxxx's suspected drug activities was to persuade the jury that the government knew of prior drug offenses committed by xxxxxx and that, therefore, he was predisposed to commit the charged offenses.

Moreover, in Garris v. United States, 390 F.2d 862, 865-66 (D.C. Cir. 1968), the court held that the prosecutor's reference in his summation to facts that he had been unable to get into evidence over defense objection constituted plain error authorizing reversal, despite the defense's failure to object timely. See also United States v. Hilliard, 569 F.2d 143, 146 (D.C. Cir. 1977) (conviction reversed where prosecution bolstered case by repeated suggestions to jury that information existing outside record proved defendant's guilt); King v. United States, 372 F.2d 383, 394-97 (D.C. Cir. 1967) (murder conviction reversed where prosecutor's assertions in cross-examination and summation regarding defendant's psychiatric evaluation were without evidentiary foundation).

Other federal appellate courts have reached similar results. In United States v. Frederick, 78 F.3d 1370, 1378-79 (9th Cir. 1996), the trial court sustained objections to and struck testimony concerning a government witness's out-of-court prior consistent statements. Notwithstanding the court's ruling, the prosecutor argued in summation that the law enforcement witnesses had testified that the complainant's testimony was consistent with her earlier out-of-court statements. Id. at 1378. Concluding that this argument constituted improper prosecutorial vouching, the court of appeals reversed the conviction. Id. at 1378-79. See also United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973) (drug conviction reversed where prosecutor's summation included remarks unsupported by the record).

It is clear that the prosecutor's reference to DEA intelligence about Mr. xxxxxx was more than an attempt to simply provide the jury with "background" information. Cf. United States v. Clarke, 24 F.3d 257, 267-68 (D.C. Cir. 1994) (finding "questionable" admission of police "background testimony" but permitting it where testimony could "be said to show the state of mind of the officers.") In this case, the DEA agents' state of mind was irrelevant to the entrapment issue. Instead, the prosecutor's purpose was to convey to the jury that contrary to the defense theory that the informant entrapped Mr. xxxxxx, the government had independent evidence that xxxxxx was predisposed to commit the charged offenses. (See 11/14/95 p.m. Tr. 94-96) Given that two previous juries had hung when presented with Mr. xxxxxx's entrapment defense, the prosecutor was acutely aware of the government's burden to prove predisposition beyond a reasonable doubt. (Id. at 96) Under these circumstances, the prosecutor's improper remarks must be viewed as a desperate attempt to nail down a conviction on his third -- and perhaps final -- try.

C. The Prosecutor Appealed to the Passions And Prejudices of the Jury

In his summation, the prosecutor repeatedly characterized Mr. xxxxxx as a drug dealer. (See, e.g., 11/29/95 Tr. 17-18, 26, 29, 31, 37, 81, 96, 98, 99) The prosecutor embellished on this characterization by calling Mr. xxxxxx a "special type of drug dealer . . . a kilo drug dealer." (Id. at 17, 37) The prosecutor went so far as to argue that it was in Mr. xxxxxx's "character, as a drug dealer," to sell drugs. (Id. at 98) Fanning the flames of the jury's fear of drug dealing in the community, the prosecutor, without any evidence in the record regarding Mr. xxxxxx's future drug activities, warned the jury that xxxxxx "wants to walk back out those doors. And do you know what? Get back to business." (Id. at 99) Calling Mr. xxxxxx's entrapment defense "bogus, . . . a farce, . . . and a lie," the prosecutor admonished the jurors that they should not "let a drug dealer back out of here." (Id. at 96) Suggesting that xxxxxx's drug dealing would continue if he was not convicted, the prosecutor rhetorically asked the jury, "[w]hat do you think he wants to do if he gets acquitted and walks out on the street . . . [w]hat do you think he is going to do if he hits the street again?" (Id. at 83) The prosecutor combined the threat of xxxxxx's future drug trafficking with the suggestion that he was a violent drug dealer who would have killed xxxxx if he had known she was an informant and might still try to retaliate against her. (Id. at 25, 91)

It is the well-established law of this circuit "that a prosecutor may not use the bully-pulpit of a closing argument to inflame the passions or prejudices of the jury or to argue facts not in evidence." United States v. Childress, 58 F.3d 693, 715 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 825 (1996) (citing United States v. North, 910 F.2d 843, 894 (D.C. Cir. 1990)). "Although the prosecutor may strike hard blows, 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." Berger v. United States, 295 U.S. 78, 88 (1935). Thus, a prosecutor may not incite a jury to convict in order to protect community values or deter future crime. United States v. 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.")

Here, the prosecutor's repeated references to Mr. xxxxxx as a large-scale drug dealer who, if acquitted, would continue to distribute drugs on the streets of the District of Columbia, was calculated to excite the prejudices and passions of the jury. Moreover, the prosecutor's suggestion of future drug dealing by Mr. xxxxxx is unsupported by the record as the government presented no evidence of illegal activities by xxxxxx subsequent to his arrest in this case. By "substitut[ing] emotion for evidence," the prosecutor implied that a guilty verdict would constitute "a blow against the drug problem." United States v. Hawkins, 595 F.2d 751, 754 (D.C. Cir. 1978), cert. denied, 441 U.S. 910 (1979) (footnote and additional citations omitted). By playing on the jurors' fear of violent drug dealers and their concern for ridding the streets of such criminals, the prosecutor unfairly sought to persuade the jury to convict Mr. xxxxxx for improper reasons wholly apart from the evidence in the case.



D. The Cumulative Effect of the Prosecutor's

Summation Misconduct Warrants Reversal of

Mr. xxxxxx's Conviction



Given the severity of the prosecutorial misconduct, the limited corrective steps taken by the district court, and the uncertainty of a conviction in the absence of the improper remarks, it follows that the prosecutor's summation caused substantial prejudice to Mr. xxxxxx's defense. See United States v. Monaghan, 741 F.2d at 1443 (enunciating test for determining whether a prosecutor's summation warrants reversal of conviction).

First, the consequences of the prosecutor's improper arguments were severe. His reference to DEA intelligence about Mr. xxxxxx's prior drug activities provided the jury with inadmissible evidence on the crucial question of xxxxxx's predisposition. The government's other predisposition evidence was not strong. It was presented almost exclusively through the rebuttal testimony of Norman Smith, whose credibility was questionable, at best, because of his interest in testifying to avoid a potential life sentence. (11/28/95 a.m. Tr. 9-13, 94) Although the government introduced some pen register records in an effort to corroborate Smith's testimony, his claim that he had sold cocaine to xxxxxx on numerous occasions was largely uncorroborated. This lack of corroboration apparently gave the jury pause as it took two and a half days to reach a verdict despite audio and videotaped evidence of the two drug transactions.

In this context, the prosecutor's insinuation that the government knew of other drug offenses committed by Mr. xxxxxx -- a remark which the jury had no reason to discredit -- may have "tipped the scales for the jury" on the crucial predisposition question. United States v. Teffera, 985 F.2d 1082, 1089 n.6 (D.C. Cir. 1993) (even if appellate court had not found evidence insufficient to support verdict, it would have had to reverse conviction because of prosecutor's improper remarks where government's other evidence was weak). Combined with this error, the prosecutor's appeal to the fears and passions of the jury exacerbated the prejudice to the defense.

Second, given the severity of the prosecutor's improper argument, the district court's standard instruction that the arguments of counsel are not evidence was insufficient to cure the prejudice. See United States v. Foster, 982 F.2d at 555 n.7 (standard reminder in jury charge that arguments of counsel are not evidence insufficient to offset prosecutor's improper remarks relying on facts not in evidence concerning other drug crimes committed by defendant); King v. United States, 372 F.2d at 396 (instruction that jury is to rely on testimony rather than arguments of counsel cannot avoid reversal where case is close and reversal necessary to guard against continued prosecutorial misconduct).

Finally, as noted above, the predisposition question was close and conviction was by no means certain in the absence of the prosecutor's improper remarks. Two previous juries had been unable to reach a verdict in this case. It is likely that the combination of extrarecord references and inflammatory comments at this trial induced one or more jurors who otherwise would have been reluctant to convict in the absence of the improper summation. Because this case is sufficiently close that the Court cannot say with confidence that the prosecutor's improper argument did not affect the integrity of the jury's verdict, reversal of Mr. xxxxxx's conviction is required.























II. THE DISTRICT COURT'S ACCEPTANCE OF THE VERDICT WITHOUT DISCLOSING THAT IT WAS ACCOMPANIED BY A NOTE RECOMMENDING LENIENCY, COMBINED WITH DEFENSE COUNSEL'S FAILURE TO OBJECT OR REQUEST ANY RELIEF WHEN THE NOTE WAS DISCLOSED, DEPRIVED MR. xxxxxx OF AN UNQUALIFIED VERDICT AND EFFECTIVE ASSISTANCE OF COUNSEL



The jury's guilty verdict was returned together with a note, signed by eight of the jurors, recommending leniency for Mr. xxxxxx. (12/1/95 Tr. 7-9) Without notifying counsel or Mr. xxxxxx of the note, the court accepted the verdict, published it, and conducted a jury poll pursuant to a defense request. (Id. at 7-8) After the jurors had confirmed their verdict, the court finally published the note recommending leniency and, without consulting counsel, indicated that it would consider the recommendation in sentencing Mr. xxxxxx. (Id. at 8-9)

A. Standard of Review



Because defense counsel did not object timely to the district court's acceptance of the verdict and jury poll, this Court reviews for plain error, which requires a determination of "(1) whether there is unwaived legal error, (2) whether the error is 'plain' or 'obvious' under current law, and (3) whether the error was prejudicial." United States v. Merlos, 8 F.3d 48, 50-51 (D.C. Cir. 1993) (Merlos II), cert. denied, 511 U.S. 1064 (1994) (citing United States v. Olano, 113 S. Ct. 1770, 1776-79 (1993)). (4)

As to Mr. xxxxxx's claim of ineffective assistance of counsel, he must show (1) that his attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687-94 (1984). On a scale of evidentiary burdens, a reasonable probability is shown by less than a preponderance of the evidence. Id. at 693-94.

B. The District Court Plainly Erred in Failing to Disclose or Address the Jury's Leniency Recommendation Before Publishing the Verdict and Polling the Jury

A jury's leniency recommendation generally does not invalidate its verdict and may be disregarded as surplusage. Rogers v. United States, 422 U.S. 35, 38 (1975) (citing Cook v. United States, 379 F.2d 966, 970 (5th Cir. 1967)). However, where the circumstances surrounding the recommendation cast suspicion on whether the verdict is unqualified or unanimous, the trial court must conduct an inquiry. Cook, 379 F.2d at 970-71. See also Rogers, 422 U.S. at 38 (noting Cook "exception" with approval). Given the exceptional facts and circumstances regarding the jury's leniency recommendation in the instant case, the district court committed plain error by accepting the verdict without informing the defense of, or conducting any inquiry into, the recommendation.

Although based on different facts, the decisions in Rogers and Cook are instructive. In Rogers, the deliberating jury inquired in a note whether the court would accept a guilty verdict "with extreme mercy of the Court." 422 U.S. at 36. Without notifying the defendant or his counsel, the court affirmatively responded to the note. Id. Five minutes later, the court accepted the jury's verdict as indicated in its note. Id. at 37. When the jury was polled, all jurors confirmed their verdict. Id.

In reversing the defendant's conviction even though the issue had not been raised either in the court of appeals or in the Supreme Court, the Court held that the district court had violated FED. R. CRIM. P. 43 by answering the jury's inquiry without informing the defense and providing it with an opportunity to be heard. Id. at 39-41. The Court concluded that the Rule 43 violation was not harmless because the circumstances concerning the jury's leniency inquiry and subsequent guilty verdict "strongly suggest[ed] that the trial judge's response may have induced unanimity by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise." Id. at 40. In reaching this conclusion, the Court noted that "[a]t the very least," the trial judge should have responded to the inquiry by advising the jury that its recommendation would not be binding in any way. Id.

In Cook, the district court accepted a verdict that included on the bottom of the form a request that the defendant be given "every degree of leniency possible." 379 F.2d at 968. When the verdict was published, the court referred to the leniency request and explained the sentencing procedures to the jury. Id. at 968-69. The jury was then polled and almost all of the jurors made some reference to the leniency recommendation. Id. at 969 & n.1. The trial court denied the defendant's request for a further inquiry into the verdict. Id. at 969. The Fifth Circuit reversed the conviction and found that the combination of circumstances required the district court to conduct an inquiry to decide whether the verdict was conditioned in any way on the leniency request. Id. at 970-71.

As in Rogers and Cook, the circumstances in this case indicate that the jury's verdict was not unqualified and unambiguous. First, the leniency recommendation indicates that a compromise was reached. This is particularly true here, where if all of the jurors had accepted the prosecution's theory of the case that Mr. xxxxxx was a notorious drug dealer, a request to show him mercy makes little sense. The leniency recommendation strongly suggests a compromise whereby some jurors who had doubts about the credibility of the government's evidence qualifiedly voted guilty in conjunction with their leniency recommendation. Second, the fact that the leniency note was not signed by all of the jurors casts further doubt on the unanimity of the verdict. Third, the jury here deliberated for more than two days even though ultimately only the very narrow issues relating to Mr. xxxxxx's entrapment defense were significant. Finally, two previous juries were unable to reach verdicts and this was the third jury convened by the government.

Under these circumstances, the trial judge plainly erred by not rejecting the verdict, instructing the jury that its verdict could not be conditioned on its leniency request, and sending the jury back for further deliberations in light of those instructions. The only action the district court took in response to the leniency note was improper -- informing the jurors that, contrary to the court's standard instruction that the question of possible punishment should not influence their deliberations (11/29/95 Tr. 116), the court would consider their recommendation. (12/1/95 Tr. 9) The trial court also independently had a duty to inform counsel of the leniency note before accepting the verdict and polling the jury. Rogers, 422 U.S. at 39-41.

Furthermore, in denying Mr. xxxxxx's new trial motion, the district court's reliance on the decision in United States v. Lee, 532 F.2d 911, 914-15 (3d Cir.), cert. denied, 429 U.S. 838 (1976), was misplaced. In that case, the jury returned a guilty verdict stating in pertinent part, "although we have voted guilty we implore the Court to exercise extreme leniency." Id. at 914. The note was signed by each juror. Id. After publishing the verdict and polling the jury, the trial judge read the note into the record. Id. The district court denied the defendant's request to ask the jurors whether their leniency request affected their verdict. Id. at 913.

In holding that the district court did not err in refusing to question the jurors or ordering further deliberations sua sponte, the Fifth Circuit distinguished Cook on the grounds, inter alia, that, unlike the leniency recommendation in Cook, the language of the Lee jury's note indicated that the vote for a guilty finding was unconditional. Id. at 915. The court of appeals noted that the jury's use of the word "implore" in its leniency request "sounds like nothing more than a plea containing no element of contingency." Id. The tone and language of the leniency recommendation in the instant case are significantly different from that used in Lee but almost identical to that used in Cook. For that reason, Cook rather than Lee is controlling. Moreover, the court of appeals's analysis in Lee -- which the district court in this case followed -- is flawed insofar as it relied on the results of the jury poll to support its decision. Because the district courts here and in Lee failed to advise the respective juries before polling them that their leniency recommendations were ineffectual and could not be considered in reaching their verdicts, the jurors' apparently unequivocal responses during their polling were functionally irrelevant. This is particularly true in the instant case where the court specifically instructed the jurors before polling them to answer either "yes" or "no." (12/1/95 Tr. 8) Under these circumstances, the jurors' assent to the guilty verdict is not legally meaningful.

The district court's error in accepting the verdict without informing counsel of the leniency recommendation, re-instructing the jury, or ordering further deliberations violated settled law under Rogers, Cook, and United States v. Patrick, 494 F.2d 1150, 1153 (D.C. Cir. 1974) (trial judge erred by telling jury it could recommend psychiatric treatment if it returned guilty verdict since "[i]t is well established in this jurisdiction that the jury's only function is to assess guilt or innocence on the basis of their independent views of the evidence.") Moreover, the error was clearly prejudicial in that the effect of the leniency recommendation in light of the exceptional circumstances involved in this case, was to nullify the verdict. See Cook, 379 F.2d at 970. Therefore, the district court committed plain error requiring reversal of Mr. xxxxxx's conviction. See Patrick, 494 F.2d at 1151, 1153-55 (finding plain error); United States v. Davidson, 367 F.2d 60, 63-64 (6th Cir. 1966) (trial court plainly erred by instructing deliberating jury it could recommend leniency and guilty verdict reached one-half hour later).

C. Defense Counsel Rendered Ineffective Assistance by Failing to Object and Request Appropriate Relief When the Leniency Recommendation Was Disclosed



Defense counsel did not become aware of the jury note recommending leniency until after the district court had accepted the verdict and polled the jury. At that time, given the two previous hung juries, the length of deliberations in this case, and the less than unanimous leniency recommendation, counsel's failure to object or to request any relief whatsoever deprived Mr. xxxxxx of his Sixth Amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-90 (1984) (requiring performance below objective standard of reasonableness and prejudice).

The relevant case law clearly recognizes that inquiry is required where the circumstances surrounding a leniency recommendation cast doubt on the unconditional nature of a guilty verdict. Therefore, defense counsel's performance was deficient in failing to object to the acceptance of the verdict and in failing to request additional instructions, further deliberations, or, at a minimum, re-polling of the jury with specific reference to the effect, if any, of the leniency request. Counsel's failure to take any action fell below an objective standard of reasonable competence required of criminal defense attorneys practicing in federal court. Id. at 687-88.

Mr. xxxxxx was prejudiced by his counsel's failure to challenge the verdict in that there is a reasonable probability that had counsel objected and an appropriate inquiry been made, the district court would have discovered that at least one juror's guilty vote was conditioned on the leniency recommendation. Counsel's inaction undermined confidence in the jury's verdict. Therefore, counsel's deficient performance rendered the result of the trial unreliable and fundamentally unfair. Id. at 693-94. Because Mr. xxxxxx did not receive the unqualified and unambiguous verdict to which he is entitled under the law, a new trial is required.

CONCLUSION

The two points of error in this case -- the prosecutor's improper summation and the district court's acceptance of a questionable verdict -- cast doubt on the fairness of Mr. xxxxxx's conviction. Taken together, the errors leave the impression of hollow justice. Under these circumstances, Mr. xxxxxx respectfully asks the Court to reverse his conviction and remand the case for a new trial in which prosecutorial zeal is properly harnessed and the integrity of the jury's verdict is certain.

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, Vernon 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 April 30, 1997, I have served by hand two copies of the foregoing Brief for Appellant Vernon 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 the appendix filed with this brief. References to the transcript of the district court proceedings are cited by date and page number (e.g., "12/1/95 Tr. ") and trial exhibits are cited by their exhibit numbers (e.g., "Gov. Ex. "). Pertinent portions of the transcript are contained in the appendix behind tabs A-G.

2. The parties entered into a stipulation regarding the chemical analysis and chain of custody of the drugs seized in the two transactions. (11/17/95 Tr. 47-49; Gov. Ex. 3-B, 4-B, 5-B)

3. Smith's testimony during the afternoon session of the 11/28/95 proceedings was typed in a separate volume, pages 1-54.

4. In Merlos II, this Court held that in light of the Supreme Court's decision in Sullivan v. Louisiana, 508 U.S. 275 (1993), holding that a constitutionally deficient reasonable doubt instruction never can be harmless error, a defendant whose lawyer failed to object to such an instruction need not show prejudice in order to meet the plain error standard because "the court cannot assess the impact of the error on the outcome of the trial because there has been no jury finding of guilt beyond a reasonable doubt in the first instance." 8 F.3d at 50-51. Analogously, where a jury's leniency recommendation casts doubt on the certainty of a guilty verdict, prejudice should be presumed because there has been no unconditional jury finding of guilt beyond a reasonable doubt. See Cook v. United States, 379 F.2d 966, 970 (5th Cir. 1967) ("[t]here is no verdict as long as there is any uncertainty or contingency to the finality of the jury's determination.")