TABLE OF CONTENTS





TABLE OF AUTHORITIES ii



JURISDICTION 1



ISSUES PRESENTED FOR REVIEW 1



STATUTES AND RULES 2



STATEMENT OF THE CASE 2



A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below 2



B. Statement of Facts 3



SUMMARY OF ARGUMENT 6



ARGUMENT 7



I. THE PROSECUTOR ENGAGED IN MISCONDUCT WHEN SHE PAIRED HERSELF AND THE JURY AGAINST DEFENSE COUNSEL AND MR. xxxxx, AND THEN URGED THE JURORS TO PROTECT THEIR OWN INTERESTS. 7



A. The Prosecutor Twice Informs The Jurors That They Are Her "Client" 7



B. Standard of Review 8



C. Mr. xxxxx Was Prejudiced By The Prosecutor's Calculated Effort To Co-Opt The Jury And To Suggest That They Should Convict To Protect Their Community 9



II. THE COURT ERRED IN ADMITTING EVIDENCE THAT THE GUN WAS LOADED 13



A. Over Mr. xxxxx's Relevancy Objection, The Court Allows The Government To Introduce Evidence That There Was A Bullet In The hamber And Eight Bullets In The Clip 13



B. Standard of Review 14



C. The Evidence That The Gun Was Loaded Was Irrelevant 15



CONCLUSION 20



TABLE OF AUTHORITIES



CASES



Huddleston v. United States,

485 U.S. 681 (1988) 15



United States v. Atkins,

116 F.3d 1566 (D.C. Cir. 1997) 15



United States v. Barker,

553 F.2d 1013 (6th Cir. 1977) 11



United States v. Brown,

370 F.2d 242 (D.C. Cir. 1966) 11



United States v. Foster,

986 F.2d 541 (D.C. Cir. 1993) 15, 16



United States v. Garrett,

959 F.2d1005 (D.C. Cir. 1992) 15



United States v. Hardy,

37 F.3d 753 (1st Cir. 1994) 10, 13



United States v. King,

724 F.2d 253 (1st Cir. 1984) 16, 20



United States v. Manning,

23 F.3d 570 (1st Cir. 1994) 9, 11



United States v. Monaghan,

741 F.2d 1434 (D.C. Cir. 1984) 8, 11



United States v. Perholtz,

842 F.2d 343 (D.C. Cir. 1988) 9

United States v. Russo,

104 F.3d 431 (D.C. Cir. 1997) 15



United States v. Small,

74 F.3d 1276 (D.C. Cir. 1996) 8



Viereck v. United States,

318 U.S. 236 (1943) 12



Williams v. New York,

337 U.S. 241 (1949) 15





STATUTES AND RULES



18 U.S.C. 921(a)(3) 17



18 U.S.C. 922(g) 2



Fed. R. Evid. 103(a) 15



Fed. R. Evid. 401 16



Fed. R. Evid. 402 15-16

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________



No. xxxxxxx

_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



ROBERT xxxxx, JR., Defendant-Appellant.



_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



____________________________________________





BRIEF FOR APPELLANT



____________________________________________



JURISDICTION



The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court having been filed on June 23, 1997, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the prosecutor's misconduct in twice telling the jurors that, just as Mr. xxxxx was defense counsel's client, the jurors were her "client," and in telling them that the case was about protecting their community, deprived Mr. xxxxx of a fair trial.

II. Whether it was reversible error in this gun possession case to admit into evidence, over Mr. xxxxx's relevancy objection, the irrelevant and prejudicial fact that the gun contained nine bullets.

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

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

On December 17, 1996, a federal grand jury returned a two-count indictment against Mr. Robert xxxxx, charging him with unlawful possession of a firearm by a convicted felon (Count One), and unlawful possession of ammunition by a convicted felon (Count Two), both in violation of 18 U.S.C. 922(g)(1). (App. 7-8). (1)

On February 19, 1997, a jury trial commenced before the Honorable Thomas F. Hogan on the gun count alone. (The ammunition count had been dismissed when the district court ruled that the indictment was multiplicitous (because it involved only a single loaded gun) and the government elected to proceed on the gun count.) (Tr. 62-65; App. 11-13). The jury returned a verdict of guilty on February 21, 1997. On June 18, 1997, the court sentenced Mr. xxxxx to 77 months of imprisonment and 3 years of supervised release. (App. 15-18). Mr. xxxxx filed a timely notice of appeal. (App. 19).

B. Statement of Facts

Because the parties stipulated that the gun at issue had been transported in interstate commerce (Tr. 286) and that Mr. xxxxx had previously been convicted of an offense punishable by more than one year imprisonment (Tr. 286), the only issue in the case was whether Mr. xxxxx had in fact possessed the gun. The government presented its case through a single witness, Officer Brian Bray, who testified that he saw a man later identified as Mr. xxxxx toss the gun away.

Officer Bray testified that at 10:00 p.m. on November 25, 1996, he was in a marked scout car driving southbound on 13th Street, N.W., in response to a lookout for a woman soliciting prostitution at the corner of 13th Street and Columbia Road. (Tr. 164-65, 168, 225, 238, 247, 249). When he reached the intersection, he noticed two people south of the intersection turning into the alley that runs westbound off 13th Street, between Columbia Road and Harvard Street. (Tr. 165, 203-04, 226, 235-36).

The officer turned right into the mouth of the alley and followed the individuals (who he could now see were men) as they walked westbound down the alley. (Tr. 166, 238, 279). After one of the men looked over his shoulder at the police car, the men split up -- the other man walking to the right onto the sidewalk and the one who had turned to look staying in the alley as it took a bend to the left. (Tr. 168-69, 250-51). The officer accelerated up to the bend and, after the man who had turned right walked out of sight behind a dumpster, looked to his left. (Tr. 170, 174, 204-05, 242, 252-53, 282-83). The officer claimed that, through the rain (Tr. 165, 175, 249), and in "fair" lighting (Tr. 175, 256), he saw the man who had turned left toss a black object in an underhanded motion backwards ten feet through the air, where it hit a light pole with a clang, bounced off it, and landed eight feet back in the alley. (Tr. 174-76, 223-24, 255). (2) As the man turned right and continued walking westbound down the alley, Officer Bray drove up to the discarded object and confirmed that it was a gun, losing sight of the man for "maybe two seconds." (Tr. 175, 177, 246-49).

When the officer looked up after looking at the gun, the man had traveled 50-60 feet from the site of the gun. (Tr. 248). The officer called for backup over the radio, giving a lookout in which he described the man who had thrown the gun as wearing a "gray hoody" and a brown jacket. (Tr. 178-79, 261-62, 269). This contemporaneous clothing description did not match the green shirt and black jacket worn by Mr. xxxxx at the time of his arrest. (Tr. 243-44, 264-66, 271).

While waiting for backup, the officer continued to drive behind the man as he walked another 180-190 feet to the end of the alley. (Tr. 179-80, 231, 248). There, another man joined the man Officer Bray had been following. As both men turned turned south in the alley toward Harvard Street, Officer Bray exited his car and arrested Mr. xxxxx as the man who had thrown the gun. (Tr. 180, 188-89, 224, 258-59, 270).

By the time Bray walked Mr. xxxxx back to the area where the gun was found, other officers were on the scene, one of whom noticed the gun's magazine laying a few feet away from the gun on a pile of trash. (Tr. 189-93). The officer testified, over relevancy objection, that the gun had a bullet in the chamber and that the magazine contained nine bullets. (Tr. 198).

Officer Bray testified that the Crime Scene Search officer did not attempt to fingerprint the gun because it had gotten wet in the rain. (Tr. 194, 260-61). The defense put on a former FBI fingerprint specialist who gave expert testimony that the fact that a firearm has been wet does not preclude the recovery of fingerprints as long as the moisture is removed (either by drying the weapon artificially or by letting it simply sit out at room temperature). (Tr. 297-99).

The other defense witness was Mr. xxxxx's mother, who provided a reason for her son's presence in the alley by explaining that he frequently stayed at his girlfriend's mother's house at 1347 Harvard Street, N.W. (Tr. 309-10). Mr. xxxxx had asked his mother to take him over there on the day of his arrest but she had not be able to because she had to go to work. (Tr. 311).

SUMMARY OF ARGUMENT

The prosecutor undermined the fundamental fairness of Mr. xxxxx's trial when she began both her opening statement and her rebuttal closing argument by analogizing her relationship with the jury to defense counsel's relationship with Mr. xxxxx -- twice telling the jurors that they were her "client." Having improperly cast herself in the role of the jurors' advocate and Mr. xxxxx in the role of their adversary, the prosecutor then encouraged the jurors to act in their own self-interest by telling them that the case was about protecting their community and suggesting that if juries cannot convict in weapons cases on the word of one police officer, community safety will be jeopardized. The prosecutor's calculated attempt to co-opt the jurors and to suggest that, by voting for her "team," they were furthering their own self-interest, struck at the heart of Mr. xxxxx's right to an impartial jury.

In addition, the court committed reversible error when, over Mr. xxxxx's relevancy objection, it admitted evidence that the firearm he was charged with possessing had been loaded with nine bullets. The fact that the gun turned out to have been loaded was not relevant because it had no tendency to make any fact of consequence to the determination of the action more or less probable. FED. R. EVID. 401. The issue was whether Mr. xxxxx had in fact possessed the gun -- a matter that rested entirely on the testimony of a single officer who was significantly impeached. The error was not harmless. The fact that the prosecutor fought to admit the irrelevant ammunition evidence, and then mentioned it repeatedly, shows that she perceived the evidence as having significant prejudicial value to the government's case.

ARGUMENT

I. THE PROSECUTOR ENGAGED IN MISCONDUCT WHEN SHE PAIRED HERSELF AND THE JURY AGAINST DEFENSE COUNSEL AND MR. xxxxx, AND THEN URGED THE JURORS TO PROTECT THEIR OWN INTERESTS.



A. The Prosecutor Twice Informs The Jurors That They Are Her "Client."



After being introduced to give her opening statement "on behalf of the United States Government," the prosecutor thanked the jurors "on behalf of the United States and the District of Columbia" for their patience thus far, and then proceeded to lay out the following "team line-up" for the trial:

Now, defense counsel has a client, and that is of course Mr. xxxxx. The Government has a client and that is you.

(Tr. 150). She began her rebuttal closing argument by reminding the jurors of this alliance she had created with them (and against Mr. xxxxx and his lawyer) and then invoked the need to protect their community from weapons:



When I began first addressing you, I would explain how defense counsel [has] his client -- we have our clients, the people. And defense counsel just talked about protection. [A reference to defense counsel's argument that the reasonable doubt standard protects all citizens]. Well, that is what this case is about and this is not a shell game. I take it very seriously. There is no mud-slinging as to what he said or I said. It is really very simple and I am not going to stray from that.



Officer Bray came in and told you as best he could what he recalls happening. If every single one police officer case involving a weapon means that we can't have an outcome, then that is problematic, because as was stated by defense counsel, the protection of the citizens of the District of Columbia is what is key here.



[DEFENSE COUNSEL]: Objection to that in argument.



THE COURT: All right. I will sustain the objection. You go ahead.

(Tr. 340).

B. Standard of Review.

Prosecutorial statements overstepping the bounds of proper advocacy violate a defendant's due process rights if they cause "substantial prejudice." United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984). The factors to be considered are the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks. Id. See also United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir. 1996) (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)).

Although the prosecutor's first improper reference to the jury as her "client" was not objected to, that comment was so obviously improper and so grossly prejudicial as to require reversal even under the "plain error" standard -- if not alone, then at least in combination with her repetition of the remark and other improper remarks (which were objected to) in her rebuttal closing argument. Under the plain error 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. 1988).

C. Mr. xxxxx Was Prejudiced By The Prosecutor's Calculated Effort To Co-Opt The Jury And To Suggest That They Should Convict To Protect Their Community.

The prosecutor's attempt to enlist the jury on the government's trial team was egregiously improper -- a desperate attempt to get an unfair advantage in a shaky case. By analogizing her relationship with the jury to that between Mr. xxxxx and his lawyer, the prosecutor grossly misstated the role of the jury, which is, of course, to be the neutral adjudicator of facts presented by the two parties -- not to be a party itself. "Arguments urging a jury to act in any capacity other than as the impartial arbiter of the facts in the case before it are improper." United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994). Here, the prosecutor's bizarre analogy weighted the scales against Mr. xxxxx in the most fundamental of ways. First, she created a special bond between herself and the jurors, with herself cast in the role of their advocate and protector. At the same time, she drove a wedge between the jurors and Mr. xxxxx by putting them in the role of his adversary.

Just as surely as a referee with money on the game makes the call for his team, the jurors here were made to feel that they were on the prosecution team and that a vote of guilty was a vote in their self-interest. Indeed, the psychological payoff the prosecutor created here compromised the jurors in much the same way a financial payoff would have. One need not be an expert on team psychology to recognize the mischief that was created by the prosecutor's calculated realignment of interests.

And calculated it was. There can be no claim of good faith slip-of-the-tongue where the prosecutor deliberately repeated the same offensive remark at the start of her rebuttal closing. Indeed, it would appear the prosecutor intentionally chose her representation of the jurors and their interests as a sort of "theme" for her arguments. See United States v. Hardy, 37 F.3d 753, 758 (1st Cir. 1994) (reversing where "we believe that the [prosecutor's] comments were, in a sense, deliberate. In his closing argument, the prosecutor had constructed an analogy based on the facts of the case, with certain rhetoric significantly repeated, which appeared to be planned. We do not believe that the prosecutor intentionally intended to influence the jury by commenting on Hardy's silence . . . We do believe, however, that when preparing or reviewing his proposed closing, the prosecutor should have known that such a comment was improper.").

Equally improper was the prosecutor's warning that "the protection of the citizens of the District of Columbia" would be compromised if juries cannot convict in one-police-officer cases involving weapons. (Tr. 340). "A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking." Monaghan, 741 F.2d at 1441. See also Manning, 23 F.3d at 572-73 (argument that jury should "Take responsibility for yourselves. Take responsibility for your community" was an improper appeal to jury to act in ways other than as dispassionate arbiter of facts).

Here, in response to defense counsel's championing of the reasonable doubt standard, and the protection it provides all citizens, the prosecutor suggested that, if the jurors could not convict on the word of one police officer, they were putting the safety of their community at risk. This was simply a scare-tactic -- an attempt to make the jurors feel guilty about applying the reasonable doubt standard. Cf. United States v. Barker, 553 F.2d 1013, 1025 (6th Cir. 1977) (condemning prosecutor's statement that "if you can't . . . find these defendants guilty on this evidence . . . we might as well open all the banks and say, 'Come on and get the money, boys, because we'll never be able to convict them.'"); United States v. Brown, 370 F.2d 242, 246 (D.C. Cir. 1966) (prosecutor's argument that to acquit defendant of assault on police officers would leave police powerless to protect community such that "'you, who live here and have to protect yourselves, you might as well have martial law'" was a "flagrant and reprehensible appeal to passion and prejudice").

Like her earlier explicit attempts to align the jurors on her team, and against Mr. xxxxx, the prosecutor's argument about protecting the community pitted Mr. xxxxx and his interests against the jurors' self-interest. While the reasonable doubt rule clearly exacts a societal cost by allowing some guilty (and even dangerous) defendants to go free, the cost of the rule is not a legitimate consideration for jurors in a criminal case. Jurors should never be asked to choose between a defendant's interest in having the jury apply the reasonable doubt standard in his case and the jurors' interest in protecting their community. That is a contest the individual defendant will always lose, particularly where the prosecutor has already explicitly cast the jurors as the defendant's adversaries.

The prosecutor's misconduct clearly undermined the fundamental fairness of Mr. xxxxx's trial. First, the arguments were so obviously improper as to require correction even in the absence of an objection, yet nothing was done to mitigate their effect. See Viereck v. United States, 318 U.S. 236, 247-48 (1943) ("trial judge should have stopped counsel's discourse without waiting for an objection" where prosecutor appealed to jurors' patriotism in time of war and their duty to protect their fellow citizens). Second, the misconduct was deliberate and -- by leading the jury to view its role as interested participant rather than impartial adjudicator -- affected a matter central to the outcome of the trial. Finally, the case was close, depending as it did on the testimony of a single, inexperienced officer whose somewhat implausible story was seriously undermined by the fact that his contemporaneous description of the person who supposedly threw the gun did not match Mr. xxxxx. See Hardy, 37 F.3d at 759 (where government made indirect comment on defendant's failure to testify (he was "still running and hiding today") and other improper arguments, fact that case depended on credibility of one officer weighed in favor of reversal; "Therefore, if the jury disbelieved, or had questions about, Officer Garvey's testimony, we do not believe that Hardy would have been convicted.").

II. THE COURT ERRED IN ADMITTING EVIDENCE THAT THE GUN WAS LOADED.

A. Over Mr. xxxxx's Relevancy Objection, The Court Allows The Government To Introduce Evidence That There Was A Bullet In The Chamber And Eight Bullets In The Clip.

When the court was considering whether to require the government to elect between the gun and ammunition counts, the prosecutor raised the question of how she would present the case if the court found the indictment multiplicitous: "[I]f we don't have that charge, technically the jury should not hear it. Any information about whether there was ammunition or not ammunition, and so those would be the points that I would ask. I don't know if the defense counsel thought that far." (Tr. 60). Defense counsel argued that, indeed, once the ammunition count was dismissed, neither the magazine nor the ammunition was relevant. On the latter point, counsel argued that "the fact that it is a loaded gun seems to me it is very prejudicial and again it has really nothing to do. The officer couldn't see that the gun was loaded. That was determined later. I see where it adds nothing to the core issue in this case. The issue will be did Mr. xxxxx throw that gun?" (Tr. 130).

The court ruled first that the magazine itself was relevant (a ruling we do not challenge) because the discovery of the magazine near the gun was consistent with and corroborated the officer's testimony that he heard the gun hit the light pole (which presumably knocked the magazine out of the gun). The court's reasoning as to the ammunition was less clear. The court seemed to rule that the ammunition in the clip was admissible because it "makes the gun in essence []operable because they have ammunition to shoot." (Tr. 133). "As to the bullet in the chamber it is logical and fits in as to what happened." (Tr. 133). The court also reasoned that Mr. xxxxx's "knowledge that he was throwing a loaded gun away" "is more guilty knowledge attributed to the Defendant" and that "[i]f he had a gun with no clip in it, the jury will wonder why he bothered to throw it away." (Tr. 133).

The officer was therefore allowed to testify that there was one round of ammunition in the chamber and eight rounds of ammunition in the magazine. (Tr. 198).

B. Standard of Review.

Although this Court has characterized "[q]uestions regarding the relevance or materiality of evidence" as resting "within the discretion of the trial court," United States v. Garrett, 959 F.2d 1005, 1008 (D.C. Cir. 1992), "an error of law . . . is an abuse of discretion 'by definition.'" United States v. Atkins, 116 F.3d 1566, 1571 (D.C. Cir. 1997) (quoting Koon v. United States, 116 S. Ct. 2035, 2047 (1996), petition for cert. filed, No. 97-6320 (Oct. 8, 1997)). This Court has recently reaffirmed that "as Rule 401 defines it, [an] item is either relevant or it is not; there is no in-between." United States v. Russo, 104 F.3d 431, 434 (D.C. Cir. 1997) (citing United States v. Foster, 986 F.2d 541, 545 (D.C. Cir. 1993)).

Therefore, this Court must decide de novo whether -- as a matter of law -- the evidence that the gun was loaded was relevant or irrelevant. If it was irrelevant, the Court must reverse unless the government can show that the error did not affect Mr. xxxxx's "substantial rights." FED. R. CRIM. P. 52(a); FED. R. EVID. 103(a).

C. The Evidence That The Gun Was Loaded Was Irrelevant.

Evidence in criminal trials must be "strictly relevant to the particular offense charged." Williams v. New York, 337 U.S. 241, 247 (1949). "Evidence which is not relevant is not admissible." FED. R. EVID. 402. The rule that evidence is admissible "only if" it is relevant, Huddleston v. United States, 485 U.S. 681, 689 (1988), is "'a presupposition involved in the very conception of a rational system of evidence.'" Advisory Committee Note to Rule 402 (quoting Thayer, Preliminary Treatise on Evidence 264 (1898)).

"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. "Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." Advisory Committee Note to Rule 401. "Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand." Id.

Here, the only matters "of consequence to the determination of the action," Rule 401, were whether Mr. xxxxx knowingly possessed the weapon, whether Mr. xxxxx had been convicted of a felony, and whether the weapon had passed in interstate commerce. The fact that the gun was loaded with nine bullets had no tendency to make the existence of any of those facts more or less probable. As this Court explained in Foster, "'[t]o discover the relevancy of an offered item of evidence, one must first discover to what proposition it is supposed to be relevant.'" Foster, 986 F.2d at 545 (quoting James, Relevancy, Probability and the Law, 29 Cal. L. Rev. 689, 696 n.15 (1941)). The government can point to no such proposition here. Cf. United States v. King, 724 F.2d 253, 256 (1st Cir. 1984) (assuming that fact that gun was loaded was irrelevant in firearm possession case but finding no prejudice where sales documents and defendant's own inculpatory testimony left jury with no choice but to convict).

The court's reasoning that the ammunition was relevant because it made the gun "operable" was erroneous since the statute prohibits possession of any "firearm," defined as including any weapon "which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." 18 U.S.C. 921(a)(3). Under this definition, the presence of ammunition is irrelevant to whether the weapon is a "firearm." For the same reason, the court was wrong in reasoning that the jury might wonder why the defendant bothered to throw away an unloaded gun. A properly instructed jury would understand that it is illegal for a felon to possess any "firearm" and would have no reason to speculate whether the gun was loaded or unloaded.

The error in admitting the ammunition evidence requires reversal of Mr. xxxxx's conviction. "An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence." Bruton v. United States, 391 U.S. 123, 131 (1968) (citing Blumenthal v. United States, 332 U.S. 539, 559-60 (1947)). When the government proffers relevant evidence, it may carry with it a risk of both "fair" prejudice (by definition, relevant evidence "prejudices" a defendant by making guilt more probable) and "unfair" prejudice (it may make the jury more likely to convict for emotional reasons unrelated to its relevance). In the case of relevant evidence, therefore, a court must decide whether the danger of unfair prejudice substantially outweighs the evidence's probative value under FED. R. EVID. 403. In this case, however, that kind of Rule 403 balancing is not necessary. Because the evidence at issue here had no relevance, any prejudice arising from it was, by definition, unfair prejudice, and requires reversal. (3)

The prosecutor clearly grasped the prejudicial value of the ammunition evidence and saw it as important to her ability to get a conviction. After the court held the indictment multiplicitous and inquired whether the government would elect to dismiss the ammunition count, the prosecutor's immediate reaction was telling: "I am quite concerned that you allow me to argue that there is a loaded weapon." (Tr. 64). Since the fact that the weapon was loaded had absolutely no legitimate probative value, the prosecutor's desire for that evidence can only be interpreted as a recognition of its prejudicial value to the government.

Indeed, the prejudicial value of that evidence is obvious. A person might have non-violent reasons for carrying an unloaded weapon, but one does not generally carry a loaded weapon unless he intends to use it. In finding that Mr. xxxxx was a danger to the community for purposes of pretrial detention, the district court repeatedly invoked the sinister image of the "loaded" weapon. See App. 9 ("Defendant was discovered by police at night, in the rain, in an area known for prostitution and narcotics sale, allegedly with a loaded handgun"); id. ("Possession of a loaded handgun by a convicted felon is a crime of violence"); id. at 10 (defendant dangerous because he was felon "found in a dark alley, on a rainy night, allegedly in a possession of a loaded handgun"). The court clearly considered the fact that the gun was loaded to be an indicia of Mr. xxxxx's dangerousness. The jury no doubt viewed it the same way. Likewise, the court's warning that "[o]bviously the government can't argue that he was going to kill somebody" (Tr. 133-34), was a recognition of the obvious inference arising from the ammunition evidence. Preventing the government from arguing that improper inference hardly prevented the jury from drawing the inference on its own.

In any event, the prosecutor did fully exploit the evidence that the gun was loaded. She emphasized it in her opening statement: "What does he toss? An actually operable loaded HiPoint 9 mm handgun. . . . There was a gun found, the magazine from the gun. The bullets in the magazine, the bullet inside the gun. . . . We will show you the gun; we will show you the ammunition. You will see the ammunition."). (Tr. 152) (emphasis added). Then, having persuaded the court that it was relevant, but lacking any legitimate inference to draw from it, the prosecutor argued in closing that, "It doesn't matter if it was loaded or unloaded. It doesn't matter if there was a bullet in the chamber . . ." (Tr. 326-37) -- a clever way to remind the jury of that prejudicial evidence in the absence of any good faith reason to mention it. If the prosecutor truly believed the ammunition evidence would not matter to the jury, why did she fight so hard to get it in and then keep mentioning it? Against this background, the government cannot establish that that evidence did not "substantially sway[]" the verdict. Kotteakos v. United States, 328 U.S. 750, 765 (1946). Cf. King, 724 F.2d at 256 (ammunition evidence not prejudicial where evidence of gun possession was conclusive). (4)

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxx must be vacated and the case remanded for a new trial.



Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Robert xxxxx, Jr.



CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Robert xxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Robert xxxxx, and one copy of the accompanying Appendix, have been served by mail on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 3rd day of November, 1997.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







1. "App. __" refers to pages of the Appendix filed with this brief. "Tr. __" refers to the consecutively-numbered transcripts of trial proceedings on February 19-21, 1997.

2. The officer testified that the man who turned to look at the car and who threw the gun was the defendant (Tr. 168-170, 174), but the officer did not claim to be able to recognize the man's face. Rather, he explained on redirect that he had tried to keep the man in sight because he had not seen his face at the time he threw the gun and might confuse him with someone else if he lost sight of him. (Tr. 275-76).

3. Given the degree of unfair prejudice discussed below, reversal would be required under Rule 403 even if the ammunition did have some conceivable probative value.

4. The prejudice from the ammunition evidence was enhanced by the officer's improper testimony that the alley was known for "drug sales." (Tr. 166). Defense counsel had moved in limine to preclude any reference to the alley's reputation for prostitution and narcotics but the court ruled that the alley's reputation helped explain why the officer turned into the alley in response to a prostitution call. (Tr. 137-38, 140-41). But when the prosecutor asked the officer whether prostitutes frequented the alley, he blurted out that the alley was known for "solicitation and the drug sales. Quite a few drug sales." (Tr. 166). The court approved the statement as background and later ruled that it was not a ground for mistrial. (Tr. 166, 291) Although Mr. xxxxx does not contend that this testimony was reversible error in and of itself, the suggestion that Mr. xxxxx's presence in the alley may have been related to drug dealing, made the fact that the gun was loaded gun appear even more sinister.