TABLE OF CONTENTS







ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 1





I. The Trial Court Erred In Failing To Grant A Mistrial When The Prosecutor Made An Improper Argument During The Government's Rebuttal Closing . . . . . . . . . . . . . . . . . . . . . . . 1

II. The Trial Court Erred In Denying The Defense Requests To Examine The Key Witness' Records And For A Psychological Examination of Her . . . . . 6

III. The Trial Court Erred In Failing To Grant A Mistrial When The Government's Key Witness Mentioned Mr. xxxxxxx's Pending Court Case . . . . . 9

IV. The Trial Court Erred In Admitting Improper Rebuttal Evidence . . . . . . . . . . . . . . . . . 10



CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 10



CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 11



TABLE OF AUTHORITIES



Cases

Bisaccia v. Attorney General of New Jersey,

623 F.2d 307 (3d. Cir.), cert. denied,

449 U.S. 1042 (1980) 5



Giglio v. United States,

405 U.S. 150 (1972) 7



Giles v. Maryland,

386 U.S. 66 (1967) 7



Government of the Virgin Islands v. Joseph,

770 F.2d 343 (3d Cir. 1985) 3



Griffin v. California, 380 U.S. 609 (1965) 3



Napue v. Illinois,

360 U.S. 264 (1959) 7



Pennsylvania v. Ritchie,

480 U.S. 39 (1987) 8



United States v. Brooks,

966 F.2d 1500 (D.C. Cir. 1992) 8, 9



United States v. Butt,

955 F.2d 77 (1st Cir. 1992) 7



United States v. Crosby,

462 F.2d 1201 (D.C. Cir. 1972) 7-9



United States v. Elem,

845 F.2d 170 (8th Cir. 1988) 5



United States v. McClain,

823 F.2d 1457 (11th Cir. 1987),

on remand 701 F.Supp. 1544 (M.D. Fla 1988) 5



United States v. Mobile Materials, Inc.,

881 F.2d 866 (10th Cir. 1989), cert. denied,

493 U.S. 1043 (1990) 6



United States v. Musacchia,

900 F.2d 493 (2d Cir. 1990) cert. denied,

111 S.Ct. 2887 (1991) 3

United States v. Peterman,

841 F.2d 1474 (10th Cir. 1988),

cert. denied, 488 U.S. 1088 (1989) 6



White v. Jones,

636 F.Supp. 772 (S.D.N.Y. 1986) 7





Statute



16 D.C. Code 2301(6) . . . . . . . . . . . . . . . . . . . . . 9





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No.xxxxxxxxx





UNITED STATES OF AMERICA, Appellee,



v.

xxxxxxxxxxxxxxxx Appellant,





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





REPLY BRIEF FOR APPELLANT





ARGUMENT



I. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE PROSECUTOR MADE AN IMPROPER ARGUMENT DURING THE GOVERNMENT'S REBUTTAL CLOSING.

The government attempts to reduce to a plain error standard the level of scrutiny with which this Court will review the prosecutor's comment during his rebuttal closing. Gov't Brief at 16, 26-29. In that comment the prosecutor stated that, by entering a guilty plea, the government's chief witness, Michelle Edwards, had accepted her responsibility whereas Mr. xxxxxxx had failed to accept his. Tr.III 62. (1) The government contends that, because the defense failed to object adequately during Edwards' direct examination to questions about the terms of her plea agreement, the plain error standard should be applied to the prosecutor's closing argument that she accepted responsibility but Mr. xxxxxxx did not. Gov't Brief at 27-28.

Contrary to the government's contention, the error in the rebuttal closing argument by the prosecutor should not be reviewed under the plain error standard. In the first place, the standard for reviewing the prosecutor's improper comment should not "relate back" to the purported insufficiency of the objection to Edwards' testimony regarding her plea agreement, because the objection that was made to the rebuttal pertained to the prosecutor's impermissible comment on Mr. xxxxxxx's failure to accept responsibility rather than to the evidence that Edwards had pleaded guilty. Moreover, because a timely objection to the prosecutor's effort to bolster Edwards' credibility by eliciting the terms of her plea agreement was made and was overruled (Tr. II 41), even if this Court decides that the standard of review for the closing argument should be determined by what transpired during Edwards' testimony, plain error is not the standard of review. The improper comments by the prosecutor during his rebuttal closing argument aggravated the impact of an error already preserved for review, so the objection at the time of rebuttal was more than sufficient. The government's argument that the plain error standard applies fails to take full account of the objection that was made during the prosecutor's rebuttal closing. During the rebuttal closing the initial objection was that the prosecutor had commented on Mr. xxxxxxx's failure to testify. Griffin v. California, 380 U.S. 609 (1965). The government implicitly concedes that the Griffin issue was preserved. When the trial court denied the request for a mistrial based upon the prosecutor's comment, Tr. III 62, defense counsel made a general objection that the prosecutor's comment was "improper." Tr. III 62-3. Although the trial court agreed that the argument was not "appropriate," it refused to grant a mistrial. Tr. III 63. Accordingly, contrary to the government's position, the issue was preserved for appeal and the standard of review is not that of plain error. See United States v. Musacchia, 900 F.2d 493, 497 (2d Cir. 1990) (general objection preserves issue for appellate review when specific ground is apparent from context), cert. denied, U.S. , 111 S.Ct. 2887 (1991); Government of the Virgin Islands v. Joseph, 770 F.2d 343, 348 (3d Cir. 1985) (general objection and motion for mistrial at the end of prosecutor's closing argument preserved issue of prosecutorial misconduct for appeal).

The error in the rebuttal closing argument was twofold. First, it constituted a comment on Mr. xxxxxxx's failure to testify in violation of Griffin v. California, 380 U.S. 609 (1965). Second, it improperly used Edwards' guilty plea to suggest Mr. xxxxxxx's guilt and to penalize him for exercising his constitutional right to put the government to its burden of proof by exercising his right to a jury trial.

In arguing that the prosecutor's rebuttal was a proper response to the defense's argument that Edwards' testimony was not credible, the government misconstrues the thrust of the defense argument. Gov't Brief at 31. It was not the existence of the plea that was at issue, but instead the improper use for which the prosecutor argued that plea to the jury. The prosecutor's comment in his rebuttal closing was more than an effort to support Edwards' credibility as the government contends. Gov't Brief at 19-21. Contrary to the government's assertion, the gist of the defense efforts to impugn Edwards' credibility was not limited to arguing that she was biased in favor of the government. Indeed, that proposition was only advanced to the limited extent that the defense argued that Edwards would look to the United States Attorney's Office in the event she experienced problems complying with the terms of her probationary sentence Tr. II 58-59, Tr. III 44. Because Edwards' plea agreement was made with the Corporation Counsel, the entity responsible for prosecutions in juvenile court in the District, and not with the United States Attorney's Office, little could be said about Edwards' motive to curry favor with the entity prosecuting Mr. xxxxxxx. Instead, the attack on Edwards' credibility related to her general modus operandi of looking out for her own self-interest. Tr. II 42-46, 53-57, 58-59, 61, Tr. III 41-45, 53. The defense theory was that from the moment of her arrest, Edwards undertook to shift the blame for her predicament, and that having done so initially by implicating Mr. xxxxxxx when she was taken off the bus, she was stuck with repeating the same version of events over and over again. Tr. II 42-46, Tr. III 42-44. This was made clear to the jury during cross-examination of Edwards as well as during the defense closing argument. Tr. II 42-46, Tr. III 41-45, 53. See also Tr. 84-85 (defense opening).

Thus, the prosecutor's comment in closing about Edwards having accepted her responsibility did not constitute a legitimate response to an implication that Edwards was testifying in the hope of receiving favorable treatment by the United States Attorney's Office. Instead, it was the very sort of invitation to the jury to infer Mr. xxxxxxx's guilt from her plea, which numerous courts have deemed impermissible. See, e.g., United States v. McClain, 823 F.2d 1457 (11th Cir. 1987), on remand, 701 F.Supp. 1544 (M.D. Fla. 1988); Bisaccia v. Attorney General of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied, 449 U.S. 1042 (1980).

In juxtaposing his comment about Edwards having accepted her responsibility to his comment that Mr. xxxxxxx had not accepted his, the prosecutor highlighted the difference between Edwards and Mr. xxxxxxx as the difference between an accused who accepted responsibility by entering a guilty plea, and one who was guilty but expended the judicial resources by going to trial; and an accused who testified (albeit as a government witness) and one who did not. (2) The fact that Mr. xxxxxxx did not testify at the trial

and that the prosecutor argued Edwards' guilty plea not merely as it related to her credibility, but as implying Mr. xxxxxxx's guilt, distinguishes Mr. xxxxxxx's case from United States v. Mobile Materials, Inc., 881 F.2d 866 (10th Cir. 1989), cert. denied, 493 U.S. 1043 (1990), and from United States v. Peterman, 841 F.2d 1474 (10th Cir. 1988), cert. denied, 488 U.S. 1088 (1989), upon which the government relies. Gov't Brief at 31-32. In Mobile Materials the government only elicited the immunity agreements with government witnesses "for the permissible purpose of minimizing damage to the credibility of [the] witnesses." 881 F.2d at 876. In Peterman the Tenth Circuit found no plain error in the failure to give a limiting instruction on the purpose for which a coconspirator's guilty plea may be evaluated based in part on the multiple government witnesses who testified against the accused and upon the fact that "very little of the evidence against the defendant came from the contested witness." 841 F.2d at 1481. These factors make those cases readily distinguishable from the facts in Mr. xxxxxxx's case.

II. THE TRIAL COURT ERRED IN DENYING TO GRANT THE DEFENSE REQUESTS A) TO EXAMINE THE KEY WITNESS' RECORDS AND B) THAT A PSYCHOLOGICAL EXAMINATION OF HER BE CONDUCTED.

The issue of the court-ordered psychological examination of Edwards is inextricably intertwined with the issue of the production of her psychological records. Accordingly, government's Points III, Gov't Brief at 34-37, and IV, Gov't Brief at 37-42, will be discussed together. The government's brief wholly fails to address the issue which, as a sequential matter, was the threshold request with which the trial court had to deal, namely the production, for in camera review, of the Youth Services Administration records relating to Edwards' mental state. Initially, defense counsel asked the trial court to conduct an in camera inspection of Edwards' psychological records held by the Youth Services Administration but the trial court declined to do so. (3) Thus, on the record as it now stands, this Court is unable to determine whether the records contained Brady information, that is, information that would have impeached Edwards' credibility. Cf. Giglio v. United States, 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66 (1967); Napue v. Illinois, 360 U.S. 264 (1959).

This critical gap in the record distinguishes Mr. xxxxxxx's case from the cases cited by the government. In each of the cases cited by the government, based upon a review of the records at issue, the trial court made an informed decision as to whether the defense was properly denied access to them. See e.g. United States v. Butt, 955 F.2d 77 (1st Cir. 1992); United States v. Crosby, 462 F.2d 1201 (D.C. Cir. 1972); White v. Jones, 636 F.Supp. 772 (S.D.N.Y. 1986). In the one case cited by the government in which the trial court denied the defense access to the records without knowledge of the information contained within those records, this Court remanded the case for a review of the records. See United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992) ("an inaccurate conviction based on government failure to turn over an easily turned rock is essentially as offensive as one based on government non-disclosure"). See also United States v. Crosby, supra, (trial court abused its discretion by refusing to examine witness' hospital records). Accordingly, at a minimum, this Court should remand the case for an in camera review of Edwards' psychological records.

It is important to appreciate the nature of the records which the defense asked the trial court to examine. They were records held by the Youth Services Administration, the agency within the Commission on Social Services that is responsible for the juvenile correctional facility where Edwards was incarcerated for several months after her arrest. Thus, the records at issue were similar to those the Supreme Court held producible for an in camera inspection in Pennsylvania v. Ritchie, 480 U.S. 39, 57-61 (1987). Although the Youth Services Administration is not an arm of the United States Attorney's Office, in Brooks this Court recognized that the duty to search possible sources for exculpatory information extends to a duty to search files in the possession of agencies other than the prosecutor's office. Mr. xxxxxxx "was not asking the U.S. Attorney's Office to examine some sprawling mass of records." 966 F.2d at 1503. Instead, like the accused in Brooks, Mr. xxxxxxx had "pinpointed [the] files that [could have been] searched without difficulty," id., and they were "locally available." United States v. Crosby, 462 F.2d at 1203 n. 4.

While by virtue of her age Edwards was presumed to be competent, her psychological profile was relevant to her credibility. Thus, notwithstanding the government's argument that any psychological records regarding Edwards did "not necessarily relate to [her] ... credibility as a witness," Gov't Brief at 41, those records were relevant because the very statutory definition of an adjudication of delinquency under which Edwards was charged recognized that Edwards was "in need of care or rehabilitation..." 16 D.C. Code 2301(6). Accordingly, the mere fact that she was adjudged a juvenile delinquent suggested an unruliness that called her credibility into question. Under these circumstances, it is clear that at the very least, the trial court should have inspected the records to determine whether defense counsel should have been allowed to use them to provide the jury with a complete profile of the minor upon whose word the government sought to have the jury convict Mr. xxxxxxx. Cf. Brooks, 966 F.2d at 1502 (the witness' "testimony was plainly critical ... Without this evidence, the government had no case against [the accused], as only [the witness'] testimony linked him to the crack...")

III. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE GOVERNMENT'S KEY WITNESS MENTIONED MR. xxxxxxx'S PENDING COURT CASE.

Mr. xxxxxxx relies on the arguments made in his opening brief.

IV. THE TRIAL COURT ERRED IN ADMITTING IMPROPER REBUTTAL EVIDENCE.

Mr. xxxxxxx relies on the arguments made in his opening brief.





CONCLUSION

For the foregoing reasons as well as those set forth in his opening brief, Mr. xxxxxxx's conviction should be reversed and his case remanded for a new trial.









Respectfully submitted,













Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Arnold xxxxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500







CERTIFICATE OF SERVICE





This is to certify that on this 1st day of December, 1992, two copies of the foregoing Reply Brief for Appellant were personally served upon John R. Fisher, Appellate Division, Room 4229, Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand-delivery.







Santha Sonenberg



1. "Tr" refers to the official transcript of the proceedings on September 5, 1991. "Tr. II" refers to the transcript of the proceedings on September 6, 1991. "Tr. III" refers to the transcript of the proceedings on September 9, 1991.

2. The fact that there was accomplice testimony which accentuated Mr. xxxxxxx's failure to testify and the fact that he exercised his right to a jury trial, distinguishes his case from United States v. Elem, 845 F.2d 170 (8th Cir. 1988), upon which the government relies. Gov't Brief at 24-26. Moreover, because the Eighth Circuit's opinion in Elem does not recount the specifics of the allegedly improper comments made by the prosecutor during the closing argument in that case, a meaningful discussion of that case is not possible.

3. The government's contention that defense counsel failed to make a threshold showing that the Youth Services Administration would have psychological records for Edwards, Gov't Brief at 37, is belied by the record. See Tr. 3-6 (proffer regarding the existence of the records, as well as counsel's basis for that proffer).