UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. xxxx

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT



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JURISDICTION


The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court (dated June 21, 1994; entered July 6, 1994) having been filed on June 24, 1994, this Court has jurisdiction over this appeal under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court committed plain error under Fed. R. Evid. 704(b) in allowing the government's narcotics expert to testify that the person who had the "tally sheet" on his person (i.e., the defendant) "plan[ned]" to "dole out" the seized drugs.

II. Whether the prosecutor engaged in misconduct in putting before the jury improper hearsay information that the defendant's own grandmother had linked him to the bag.

III. Whether it is reasonably likely that the jury was misled as to the standard of proof by the prosecutor's improper argument that they could acquit the defendant only if "all the government's witnesses" were "lying," by the court's instructions presenting a false choice of historical fact ("was that his bag or was it somebody else's bag"), and by the court's confusing supplemental instruction on the "kind of a doubt [needed] to convict."

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 16, 1993, a federal grand jury sitting in the District of Columbia returned a one-count indictment charging Mr. Andre xxxxxxx with possession with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(ii). A. 8. (1)

A jury trial commenced before the Honorable Harold H. Greene on March 7, 1994. On March 9, 1994, the jury returned a verdict of guilty. On June 16, 1994, Mr. xxxxxxx was sentenced to 78 months of imprisonment and five years of supervised release (A. 30-33). Mr. xxxxxxx filed a timely notice of appeal (A. 34).

B. Statement of Facts

1. The Government's Case

Detective John Centrella of the Metropolitan Police Department Drug Interdiction Unit testified that at 2:20 p.m. on November 22, 1993, he and Detectives Samuel Woodson and Jeffrey Huffman boarded the last car of a train that had just arrived from New York City and was continuing on to Florida. (Tr. 88-89). Mr. xxxxxxx was sitting in the window seat in the third row from the rear. (Tr. 89). The detectives decided to approach him because he was "slumped down in his seat" with the hood of his sweatshirt pulled up over his head "as if he was trying to conceal himself." (Tr. 89-90). The closest person to Mr. xxxxxxx was seated seven rows in front of him. (Tr. 90).

Mr. xxxxxxx agreed to speak to Centrella. (Tr. 90-91). Upon request, Mr. xxxxxxx produced a one-way train ticket (costing $114, paid in cash) from New Jersey to Southern Pines, North Carolina. (Tr. 91). Mr. xxxxxxx stated that he lived in North Carolina and had been in New Jersey for the weekend visiting relatives. (Tr. 91). Mr. xxxxxxx produced a North Carolina driver's license in the name of Andre xxxxxxx (2) and showing a birthdate of January 2, 1975. (Tr. 92, 98). He stated that he was a student at Shaw College in Raleigh, North Carolina. (Tr. 92). He denied having any luggage, and specifically denied that the black leather jacket and small bag in the luggage rack overhead were his. (Tr. 92).

Centrella then took the bag down from the rack and walked through the car asking if anyone would claim ownership of it. No one did. (Tr. 92). Centrella then opened the bottom section of the bag, which was closed with a circular zipper, and found a kilo-sized brick of what turned out to be cocaine. (Tr. 93). (3) Inside the main portion of the bag was some clothing and toiletries. (Tr. 93).

Centrella then returned to Mr. xxxxxxx's seat and asked him again where he went to college. He again said Raleigh, North Carolina. (Tr. 93). Mr. xxxxxxx then stated that he lived in New Jersey and was travelling to Southern Pines, which was about 60 miles from Raleigh. (Tr. 93-94). When Detective Woodson asked him again "where is Shaw College?," Mr. xxxxxxx dropped his eyes to the floor and did not answer. (Tr. 94).

Centrella then searched Mr. xxxxxxx incident to arrest and found $107 in cash, two New Jersey identifications in the name Andre xxxxxxx (one with the same birthdate as the North Carolina identification; one with a birthdate three years earlier), a piece of paper with names and numbers on them, some scraps of paper with some of the same names and telephone numbers, and a traffic ticket from North Carolina. (Tr. 98-100). On the way to the station in the police car, Mr. xxxxxxx stated that the jacket was his but the bag was not. (Tr. 101). At the station, in the course of booking, Mr. xxxxxxx stated that he was unemployed. (Tr. 101). When Centrella asked him where he got the $107 cash and the cash to pay for the ticket, Mr. xxxxxxx stated that he had been paid $100 to transport the bag from New Jersey to South Carolina. (Tr. 101). He had been told to leave the bag on a park bench and hide until he saw someone pick it up. (Tr. 101-02). (4) Mr. xxxxxxx said he lived with his grandmother in New Jersey and that they did not have a telephone. (Tr. 104).

On cross-examination, Centrella explained that he selected the last car because the passengers in it were headed to points in North and South Carolina where the drug market is lucrative. (Tr. 110-13). He testified that he spoke to Amtrak employee Phyllis Perpetua after Mr. xxxxxxx's arrest, but denied speaking to her before that time. (Tr. 124). He specifically denied asking her if anyone had a ticket to Southern Pines or Rocky Mount. (Tr. 124). He specifically denied that she looked at a seating chart and directed him to Mr. xxxxxxx in Seat 55. (Tr. 125).

On redirect, the prosecutor attempted to bring out the substance of Centrella's post-arrest conversation with Ms. Perpetua. (Tr. 127). Upon examining Ms. Perpetua's grand jury testimony at the bench, the court stated:

[I]t looks to me like he talked to her before he arrested this defendant, according to this testimony. That might be of some significance. I'd like to hear what she has to say. Now if you're not going to call her, I'll call her. . . . If you're going to call her, I'm going to sustain objections to all this hearsay, and we'd might as well get it directly from the horse's mouth. . . . Because either this detective is lying or I misunderstand what's being said here. I think it ought to be cleared up. It can't be cleared up by more hearsay. He's giving us hearsay. You're giving us hearsay.

(Tr. 128-29). When the prosecutor then attempted to ask Centrella about his conversation with Mr. xxxxxxx's grandmother, defense counsel objected that the subject was beyond the scope of cross-examination and the court sustained the objection. (Tr. 129-30).

Ms. Perpetua testified that she was the Amtrak on-board service attendant for the last car (and part of the next-to-last car) on the day of Mr. xxxxxxx's arrest. (Tr. 141, 148). (5) Mr. xxxxxxx boarded at Newark. (Tr. 142). He was wearing a black bomber-type jacket and carrying a black and yellow nylon zippered bag. (Tr. 142, 145). Ms. Perpetua assigned him to Seat 7, but he took Seat 55. (Tr. 142). Ms. Perpetua did not see him stow his luggage but later noticed the bag over his head. (Tr. 142-43, 152-53). She was the closest person to him, seated in Seats 57 and 58. (Tr. 143). She did not see Mr. xxxxxxx leave his seat or speak to anyone during the time she was in the car. (Tr. 143-44, 151). Centrella approached her on the platform outside the train about ten minutes after its arrival at Union Station and asked her whether anyone was going to Southern Pines or Rocky Mount. (Tr. 145, 148). She explained her seating diagram to him and directed him to Seat 55. (Tr. 145, 149). Later, when Centrella approached her with a bag, she recognized it as the one Mr. xxxxxxx had carried on board. (Tr. 144-45, 155). She testified, however, that the bag introduced in evidence by the government (which was green, blue and white) (Tr. 157) did not look like the bag she saw Mr. xxxxxxx carrying. (Tr. 154-55).

Officer David Stroud testified as an expert in the use and trafficking of narcotics. (Tr. 172). He testified that the kilogram brick of cocaine seized in this case would cost approximately $10,000 in New York and wholesale for approximately $50,000 in Raleigh, North Carolina. (Tr. 174-75). Its street value in Raleigh would be approximately $400,000. (Tr. 175). He testified that that quantity is consistent with distribution to others as opposed to personal use. (Tr. 175). When the prosecutor showed Stroud one of the pieces of paper seized from Mr. xxxxxxx and asked him to describe it for the jury, Stroud responded with the following monologue:

A Yes. I have seen these before. These are tally sheets.Now this particular sheet contains names -- or nicknames on one side and numerical figures on the the side, and a bottom figure of $8,240 (6) overall.Now, the purpose -- well, first, a tally sheet is an informal ledger that the drug dealers will use to keep track of their money. This is just like any other business. A lot of times they don't put this stuff on a computer. They put this stuff on the back of envelopes or just plain old scrap piece of paper, like these.One reason they put it on a piece of paper like this is should the police come upon it, this is easily disposed of. Just ball it up. Or in some cases, you see people try to eat these things or simply throw this paper down the sewer. But the drug dealers are just like any other business types. They have to keep track of where their drugs are going and how much money is either owed out by them or they have coming in to them.(Tr. 176-77).

The prosecutor then asked:

Q Now, if I told you that a person had that piece of paper on their person and it was found with this brick of cocaine in their bag, what conclusion would you draw as to their connection to that cocaine?

A Well, this tells me that when this person gets to his destination, he plans to dole out a certain amount of drugs to these customers, and this is how much money he expects to get back from those customers.

(Tr. 177) (emphasis added).

2. The Defense Case

Mr. xxxxxxx's mother, xxxxxxxxx, testified that her son lives with her parents (his grandparents) in Plainfield, New Jersey. (Tr. 184). She testified that she had never seen the bag or any of its contents before but that the jacket looked like one her son wore. (Tr. 184-85). On cross-examination, Ms. xxxx stated that she recalled getting a phone call at work on November 23, 1993, from Pretrial Services, in which she had confirmed that she was the defendant's mother and told the caller her son's true name. (Tr. 191-92). At first she could not recall whether or not she had also received a telephone call from Detective Centrella at her mother's house at 5:10 p.m. that same day. (Tr. 192-93). After refreshing her recollection with Centrella's notes, she stated that she probably did speak to Centrella at her mother's house. (Tr. 193-94). In the last exchange of the trial, the prosecutor then asked:

Q And do you recall your mother telling the detective that --

[DEFENSE COUNSEL]: Objection, Your Honor. Hearsay.. .



THE COURT: No, it's not hearsay under those circumstances. Overruled.

[PROSECUTOR]: Do you recall hearing your mother tell the detective that your son had left New Jersey with a multicolored small bag, that zips out from the bottom, a small bag that you put sandwiches in? Do you recall hearing her saying that?



A To be truthful with you, I didn't stay with her when she was on the phone. I left the room. I went to the bathroom.

(Tr. 194) (emphasis added).

3. The Prosecutor's Rebuttal Argument

The prosecutor began his rebuttal argument as follows:

Ladies and gentlemen, if you believe that all the government's witnesses who came in here today were lying, then you should find the defendant not guilty. But the only way you can find him not guilty is to conclude that they're all lying: That Detective Centrella is lying when he says that the defendant told him he was paid a hundred dollars to take the drugs to North Carolina, that Detective Woodson is lying when he said that he heard the defendant say the same thing; that Centrella is lying when he said he took that bag from right above the defendant's head, that Detective Woodson is lying when he says the same thing; that Ms. Perpetua is lying when she says that she told Centrella that the bag that he had recovered was the bag that Mr. xxxxxxx or Mr. Lawrence was carrying. That's the only way you can find him not guilty.

(Tr. 210) (emphasis added). (7)

4. The Jury Instructions

After making clear that "I don't regard the xxxxxxx Lawyers' Section's compilation of instructions as having the same dignity as the Ten Commandments or the Constitution of the United States," the court stated it would "give more or less what they [the Red Book instructions] say." (Tr. 197). With respect to the function of the jury, the court deviated from the Red Book instructions by instructing the jurors that their job was "to decide what happened on November 22nd" and that the facts they found would "tell you whether the defendant is guilty or not guilty." (Tr. 216). Specifically, the judge stated:

So far as the facts are concerned, you are going to have to decide what happened on November 22nd at Union Station: Who did what, who said what to whom, and so on, when they went to the police station and all that. . . . [Y]ou are the judges of the facts, and therefore you make the decision as to what happened.

Now, how are you going to make that decision? . . . [T]he only way you can make that decision is based on what we heard from the evidence . . . . [O]f course, the facts tell you whether the defendant is guilty or not guilty of the charge that is brought against him . . .

(Tr. 216) (emphasis added).

5. The Supplemental Jury Instructions

The jury retired to deliberate at 4:20 p.m. on March 8. (Tr. 231). At 10:40 a.m. the next morning, the jurors requested a "[c]opy of judge's instructions." (A. 25). (8) At 11:45 a.m., the jury sent out a note, stating: "We would like the Judge to address us on the issue of reasonable doubt." (A. 26). At 1:05 p.m., another note was sent, stating: "We still need instruction from Judge Greene re: reasonable doubt." (A. 27).

At 1:16 p.m., the court met with counsel and said, "I thought of improving [the reasonable doubt instruction] and adding to it, but I figure maybe that is too dangerous, so I will just give them the same kind of thing that I did before." (A. 233). Upon entering the courtroom, the jurors submitted another note (unsigned and undated), stating: "Reasonable Doubt; Constructive & Actual Possession." (A. 28; Tr. 234).

The court began by essentially repeating Red Book Instruction 2.09 on reasonable doubt. (Tr. 234). However, after telling the jury that the government is not required to establish guilt to a scientific certainty, the court continued:

For example -- maybe I shouldn't go off into examples, but I will. For example, water freezes at 32 degrees. Well, that is a scientific certainty, and there is no doubt about that. That is to a scientific certainty. You don't need that kind of a doubt to convict. What you need to convict here is a doubt based on reason, as I tried as best to explain it to you. In other words, it is the government's burden to establish guilt of the three elements of the offense possession and willful possession and possession with intent to distribute beyond a reasonable doubt. I hope this makes it clearer. That is the best I can do.(Tr. 234-35) (emphasis added).

With respect to constructive possession, the court explained (Tr. 235-36) (emphasis added):

Constructive possession is the power and the intention to exercise dominion and control over something. Rather than to give my own example, I will give you your example again. If you left a handbag or a jacket in there, you are in constructive possession of those, even though they aren't in your hands, because you have the intention and you have the ability to control those because they're yours, unless some thief came along. We hope that isn't going to happen here, but you can forget about that. The point is constructive possession requires only that you have the ability, the power, and the intent, purpose to exercise control.

In other words, to bring it down to this bag that had the two pounds of cocaine in it, was it this defendant's or wasn't it. I mean, to put it as plainly as I can. If you find it was his, then he had constructive possession of it. If you find it was not his -- it was somebody else's, known or unknown -- then obviously he was not in possession. So you are going to have to make up your mind, at the most elementary level, was it his bag or was it somebody else's bag. If it was his bag, then he was in possession and the elements of possession would have been satisfied.

I hope that answers your questions. You still look puzzled, some of you, but that is the best I can do and that is what you are going to have to do with because I am, of course, bound by definitions that are either in the law or in opinions from higher courts, and I can't deviate from those. Because if I deviate from those, then the Court of Appeals will tell me that I was wrong and I have to retry it, and I don't particularly want to retry it. Those are my answers to your questions.

The jury reached its verdict four minutes later. (Tr. 236; A. 29).

SUMMARY OF ARGUMENT

I. Officer Stroud's expert opinion that the person carrying the tally sheet (Mr. xxxxxxx) "plan[ned] to dole out" the seized drugs when he got to North Carolina was plainly improper mental state testimony under Fed. R. Evid. 704(b). The law was settled at least as of the decision in United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993), that Stroud was not permitted to opine on the intent to distribute of a "person" who was by inference the defendant. Stroud's attempt eight months later to evade this prohibition by substituting "plan" for "intend" and "dole out" for "distribute" was obviously improper and highly prejudicial on the facts of this case.

II. The prosecutor engaged in misconduct in asking Mr. xxxxxxx's mother whether she had overheard her mother tell Centrella that Mr. xxxxxxx had left with a bag matching the description of the bag containing the drugs. The question had no purpose other than to put before the jury obviously inadmissible hearsay. The fact that the prosecutor had not asked Centrella to repeat the alleged statement during his direct examination shows that the prosecutor recognized it as inadmissible. The fact that the mother denied overhearing the grandmother's statement did not eliminate the prejudice from the question itself where, rather than striking the question, the court overruled defense counsel's objection to it, and where the court never clearly instructed the jury that the lawyers' questions were not evidence. Reversal is required because of the relative probative force of this damning statement from the defendant's own family member as compared to the less-than-solid testimony from the government's live witnesses.

III. Mr. xxxxxxx's conviction must also be reversed because it is reasonably likely that the prosecutor's rebuttal argument and the court's instructions diluted the standard of proof as understood by the jury. In United States v. Rawlings, 73 F.3d 1145 (D.C. Cir. 1996), this Court found plain error in jury instructions that set up a false credibility contest between the government and defense witnesses, emphasized resolution of the factual dispute by requiring the jury to decide "what really happened," and purported to establish a hierarchy among the three offense elements. This Court concluded that "the combined effect of the challenged instructions was to divert the jurors' focus from the one question crucial to determining [the defendant's] guilt or innocence: Did the government prove the three elements of [the charged crime] beyond a reasonable doubt." Id. at 1149.

In this case, the jurors were misled in the same way, this time by the combination of the court's instructions and the improper rebuttal argument by the prosecutor. As in Rawlings, the jurors were misled into believing that they had to make a credibility choice when in fact they did not. In fact, the prosecutor's argument in this regard was far more improper than the court's credibility choice instruction in Rawlings; the prosecutor here actually told the jurors that "the only way" they could acquit Mr. xxxxxxx was to conclude that "all the government's witnesses" were "lying." (Tr. 210). Also as in Rawlings, the court told the jurors that they had to resolve the factual disputes and decide "what happened" (Tr. 216) when, in fact, "[t]hey had to determine only whether the Government proved what it alleged had happened beyond a reasonable doubt." 73 F.3d at 1148-49. The most egregious example of this error here was the court's instruction that "you are going to have to make up your mind, at the most elementary level, was it his bag or was it somebody else's bag," suggesting that the jurors could acquit only if they actually decided the bag was someone else's. (Tr. 236). If these errors were plain at the time of the Rawlings trial in July of 1993, they were equally plain at the time of Mr. xxxxxxx's trial in March of 1994. Adding to the jurors' misunderstanding here was the court's supplemental instruction on reasonable doubt, which, although intended to clear up the jurors' confusion, only compounded it by defining the kind of doubt "need[ed] to convict" instead of to acquit. (Tr. 235).



ARGUMENT

I. OFFICER STROUD'S EXPERT TESTIMONY ON WHAT THE PERSON CARRYING THE TALLY SHEET INTENDED TO DO WITH THE COCAINE PLAINLY VIOLATED FEDERAL RULE OF EVIDENCE 704(b).

A. Standard of Review

Because there was no objection to Officer Stroud's intent testimony, it is reviewed for plain error. United States v. Glenn, 64 F.3d 706, 711 (D.C. Cir. 1995). An error meets this standard if (1) it was "'error under settled law of the Supreme Court or this circuit,'" and (2) it "'unfairly prejudiced the jury's deliberations.'" Id. (quoting United States v. Mitchell, 996 F.2d 419, 422 (D.C. Cir. 1993)).

B. Officer Stroud's Expert Opinion That a Defendant "Plans To Dole Out" Cocaine Is Equivalent To Plainly Improper "Intent To Distribute" Testimony.

Rule 704(b) of the Federal Rules of Evidence provides:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

1. The Testimony Violated Settled Law.

Stroud's testimony in this case was given eight months after this Court found comparable testimony Stroud gave in the Mitchell case to "violate Rule 704(b) under our current law." 996 F.2d at 422. In Mitchell, Stroud was asked, "what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?" This Court held that his answer, "[i]t was intent to distribute," was improper opinion testimony as to a defendant's mental state under Rule 704(b). Id.

The Mitchell case was the culmination of a series of cases in which this Court outlined the limits of expert opinion testimony under Rule 704(b). See United States v. (Patrick) Williams, 980 F.2d 1463, 1465-66 (D.C. Cir. 1992); United States v. Boney, 977 F.2d 624, 628-31 (D.C. Cir. 1992); United States v. Dunn, 846 F.2d 761, 762-63 (D.C. Cir. 1988). Although the Mitchell Court found Stroud's testimony to violate Rule 704(b), it concluded that the error was "just short" of clearly violating that rule as it had been interpreted in Dunn (the only case that had been decided at the time of Mitchell's trial). 996 F.2d at 423. This Court distinguished Stroud's testimony in Mitchell on the ground that there was no explicit reference to the intent of "the defendant" as opposed to the intent of "the person" carrying the ziplocks. Id. Recognizing that "by inference it would have to be defendant Wilson," the Court concluded that, although the testimony was not "plainly forbidden" under the 1988 Dunn decision, the testimony was in fact "forbidden" by Rule 704(b). Id. It follows, therefore, that testimony on the intent of "the person" in possession of drugs was "plainly forbidden" at least as of the date of the Mitchell decision -- July 2, 1993. Id. (9)

Stroud's March 1994 testimony in this case cannot be distinguished from the testimony this Court found forbidden in Mitchell just eight months before. Stroud testified here that "this person" who had the tally sheet on their person (an obvious reference to the defendant, as in Mitchell) "plans to dole out" the cocaine upon arrival at his destination. (Tr. 177). "Planning" to "dole out" is obviously the same thing as "intending" to "distribute." Officer Stroud must not be permitted to end-run this Court's decisions precluding "intent to distribute" testimony by substituting in synonyms for that element of the offense.

2. The Testimony Was Prejudicial.

Moreover, Stroud's testimony in this case that the person with the so-called "tally sheet" had the intent to distribute cocaine was highly prejudicial where Mr. xxxxxxx's defense at trial was that the bag was not his and that, even if the jury believed Centrella's claim that Mr. xxxxxxx had admitted couriering the bag, there was no evidence that he was aware of the contents. "In a case such as this one, where the facts offered at trial are at best ambiguous as to the defendant's role in alleged criminal activity, expert testimony on the ultimate issue of fact is likely to have a powerful effect on the result." Boyd, 55 F.3d at 672.

Here the facts were ambiguous. Mr. xxxxxxx was seated underneath a bag containing drugs. His defense was that he did not knowingly possess the drugs and did not intend to distribute them. The only witness who claimed to see Mr. xxxxxxx with a bag described the bag he had carried as black and yellow (Tr. 142), while the bag containing the drugs had in fact been green, blue and white. Even if the jury believed that Mr. xxxxxxx had carried the bag onto the train for $100, the government put in no evidence -- other than Stroud's testimony -- that he knew the bag contained drugs or that he intended to distribute them. Stroud's testimony that Mr. xxxxxxx intended to distribute drugs to people on the tally sheet was highly prejudicial not only on the issues of knowledge and intent, but also on the more fundamental issue of possession itself.

If a jury has reason to be unsure of a defendant's guilt, but is made to listen to an "expert" who claims to know the defendant's state of mind, the jurors may rely on the purported expertise of the Government witness to cure the ambiguity that they face.



Boyd, 55 F.3d at 672. Here, the jury might well have reasoned that if, as expert Stroud opined, Mr. xxxxxxx intended to distribute the drugs in the bag, he must have possessed them. Here, as in Boyd, the jurors would have been tempted to rely on Stroud's state of mind testimony to resolve ambiguities in the evidence. "There

would be little need for a trial before a jury if an expert is allowed simply to declare the defendant's guilt." Id. (10)

II. THE PROSECUTOR ACTED IMPROPERLY IN PUTTING HIGHLY DAMAGING

HEARSAY BEFORE THE JURY.

A. Standard of Review.

Because defense counsel promptly objected on hearsay grounds before the prosecutor had stated the substance of the grandmother's alleged statement to Centrella (Tr. 194), this issue is preserved for full appellate review. This Court has reversed where it could not say that the unsupported suggestions contained in a prosecutor's questions "were not responsible, in some degree at least, for the convictions." Jones v. United States, 338 F.2d 553, 554 (D.C. Cir. 1964).



B. The Prosecutor's Misconduct in Asking Mr. xxxxxxx's Mother Whether She Had Overheard His Grandmother Link Him To the Bag Was Highly Prejudicial On the Facts of This Case.

The ABA Standards for Criminal Justice ("The Prosecution Function") (3d ed. 1993) provide:

Standard 3-5.6 Presentation of Evidence

(b) A prosecutor should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence [or] ask legally objectionable questions . . . in the presence of the judge or jury.

Here, after defense counsel's unsuccessful hearsay objection, the prosecutor asked Mr. xxxxxxx's mother:

Do you recall hearing your mother tell the detective that your son had left New Jersey with a multicolored small bag, that zips out from the bottom, a small bag that you put sandwiches in?

(Tr. 194). There was no conceivable purpose for this question other than to put inadmissible evidence before Mr. xxxxxxx's jury. The question clearly contained hearsay as defined under Fed. R. Evid. 801(c): an out-of-court statement of a declarant (here, Mr. xxxxxxx's grandmother) offered to prove the truth of the matter asserted (that Mr. xxxxxxx left with the disputed bag). It was not admissible under any hearsay exception. Moreover, the prosecutor appears to have been aware that the question was improper. If he had been under the mistaken impression that the grandmother's statement was admissible, he would have asked Centrella to repeat it during his direct examination, but he did not. "[T]he government may not attempt to manufacture evidence by creating an impression in the minds of the jurors through questions that imply the existence of facts. Questions assuming the existence of a factual predicate must be grounded in a good faith belief that those facts are susceptible to proof by competent evidence." Ali v. United States, 520 A.2d 306, 313 (D.C. App. 1987) (emphasis added).

The fact that Mr. xxxxxxx's mother denied having heard the alleged hearsay statement did not eliminate the prejudice from the question itself. Fed. R. Evid. 103(c) ("Hearing of Jury") provides that "[i]n jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as . . . asking questions in the hearing of the jury." The Advisory Committee Notes to Rule 103(c) point out that "a ruling which excludes evidence in a jury case is likely to be a pointless procedure if the excluded evidence nevertheless comes to the attention of the jury." See also Commentary to ABA Standard 3-5.6 ("The mere . . . asking [of] a known improper question may be sufficient to communicate to the trier of fact the very material the rules of evidence are designed to keep from the fact finder. Moreover, the damage may only be emphasized by an objection to the evidence so that the offer of inadmissible matter may leave opposing counsel with no effective remedy."). Given this reality, it mattered little from the prosecutor's perspective whether the court sustained or overruled the hearsay objection or whether the witness had or had not in fact overheard the grandmother's alleged statement. The goal of getting the damaging allegation before the jury was achieved so long as the court did not preclude the prosecutor from stating the question, which, despite defense counsel's objection, the court here did not.

In Jones, this Court reversed where the prosecutor "sought to shore up obvious weaknesses in the Government's case" by overstating a witness's expected testimony in her opening statement and twice asking questions designed to put the desired words in the witness's mouth (338 F.2d at 554):

Q. Now, you observed one of the defendants coming out of the side doorway, you're talking about?



A. I don't know whether he was coming out. He was in the vicinity of the side door. . .



Q. Now, sir, when you observed a person coming out of that entranceway and then the activity, the working or loading activity in the truck, where were you at that time?



A. Well, I didn't say --



[Defense Counsel]: Your Honor, I must object to the form of the question.



The Court: We will strike that question and the jury will disregard it. I do not remember any testimony about any loading activity.

The Jones Court reversed the defendant's conviction despite the fact that the jury was instructed that opening statements were not evidence, that the witness denied the factual assertions in the questions, and that the jury was instructed to disregard one of the questions. 338 F.2d at 554.

Here, Mr. xxxxxxx's hearsay objection was overruled and the jury was not instructed to disregard the improper question. Although both the government (A. 14) and the defense (A. 21) had requested that the court give standard Red Book Instruction 1.07 ("Question Not Evidence"), (11) the court did not do so. Compare United States v. Childress, 58 F.3d 693, 731 (D.C. Cir. 1995) (prejudice not sufficient to require mistrial where court specifically admonished jury to disregard prosecutor's question premised on a fact not in evidence). While the court did tell the jury that what the lawyers said at the beginning of the trial and in their summation was not evidence (Tr. 216), and defined evidence as "the sworn testimony from the witness stand and the exhibits and stipulations" (Tr. 215-16), those instructions did not clearly tell the jury to disregard facts stated in counsel's questions and could have left the jurors with the impression that the evidence was the sworn dialogue between the witnesses and counsel. A juror's natural tendency would be to accept the words of a prosecutor as true. See Berger v. United States, 295 U.S. 78, 88 (1935) (cited in United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir. 1996)):

[T]he average jury . . . has confidence that [the prosecutor's] obligations [of fairness and accuracy] . . . will be faithfully observed. Consequently, improper suggestions [and] insinuations . . . of personal knowledge are apt to carry much weight against the accused.

The misconduct in this case was highly prejudicial to Mr. xxxxxxx. In the analogous context of evaluating the lingering harm from inadmissible testimony that has been ordered stricken, courts "'weigh the forcefulness of the instruction and the conviction with which it was given against the degree of prejudice generated by the evidence. . . . In fixing the degree of prejudice, the probative force of the inadmissible evidence must be compared with that of the admissible evidence which supports the verdict.'" United States v. Eccleston, 961 F.2d 955, 959 (D.C. Cir. 1992) (quoting United States v. Morris, 827 F.2d 1348, 1351 (9th Cir. 1987)). See also Jones, 338 F.2d at 554 n.3 (whether prosecutorial misconduct "amounts to prejudicial error depends, in good part, on the relative strength of the Government's evidence of guilt") (emphasis added).

Here, of course, there was no curative action to weigh against the prejudice. And comparing the relative probative force of the inadmissible evidence against that of the admissible evidence, the prosecutor's question was extremely damaging to Mr. xxxxxxx. The government's key pieces of admissible evidence were (1) the "eyewitness" testimony of a train employee, whom the prosecutor had only reluctantly called as a witness, and who, it turned out on cross-examination, could not even identify the bag; and (2) the police testimony that Mr. xxxxxxx had stated that he had agreed to transport the bag for $100. The government's main witness, Centrella, was revealed as utterly unreliable when he gave a version of how he came to approach Mr. xxxxxxx that was in direct conflict with Ms. Perpetua's very specific recollection. As compared to this tarnished evidence, the revelation that Mr. xxxxxxx's own grandmother had linked him to the bag was solid gold. The grandmother's statement was devastating not only because of her presumed veracity (what grandmother would falsely incriminate her grandson?) but also because, by suggesting that Mr. xxxxxxx had lied to the police about being paid by a third party to deliver the bag, it destroyed his no-knowledge defense. As in Jones, this Court cannot conclude that the information smuggled in through the prosecutor's question was not "responsible, in some degree at least, for the convictio[n]." 338 F.2d at 554.



III. THE PROSECUTOR'S REBUTTAL AND THE TRIAL COURT'S INSTRUCTIONS COMBINED TO MISLEAD THE JURY AS TO THE STANDARD OF PROOF.



A. Standard Of Review

Whether the prosecutor's discussion of what the jury had to find in order to acquit Mr. xxxxxxx, and the court's jury instructions, were misleading as to the standard of proof for conviction are legal questions reviewed de novo.

Jury instructions in criminal trials violate due process if "there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship (12) standard [of proof beyond a reasonable doubt]." Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994) (emphasis added) (citing Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991)).

Where, as here, defense counsel did not object to the challenged instructions, this Court has reviewed the instructions under the plain error standard, "which generally 'requires us to determine (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. Rawlings, 73 F.3d 1145, 1148 (D.C. Cir. 1996) (quoting United States v. Merlos, 8 F.3d 48, 50 (D.C. Cir. 1993) (Merlos II), cert. denied, 114 S. Ct. 1635 (1994)). Where, however, the instructions dilute the burden of proof below proof beyond a reasonable doubt, "we need not inquire into prejudice but only whether there was obvious error." Rawlings, 73 F.3d at 1148 n.3 (citing Merlos II, 8 F.3d at 50-51). (13) Because the prosecutor's legal misstatements in rebuttal also had the effect of diluting the standard of proof, the same presumption of prejudice should apply to those improper comments.

B. There Is a Reasonable Likelihood That Mr. xxxxxxx's Jury Was Confused as to the Standard of Proof.

1. The Prosecutor's Misleading Argument

The prosecutor's rebuttal argument that "the only way you can find [Mr. xxxxxxx] not guilty is to conclude that . . . all [the government's witnesses are] lying" -- "that Detective Centrella is lying;" "that Detective Woodson is lying;" "that Ms. Perpetua is lying" -- was certainly a dramatic rhetorical device. (Tr. 210). However, it was also plainly and obviously wrong as a matter of law. The law has been clearly established since Winship that jurors can -- and must -- acquit whenever the government has failed to convince them of each and every element of the crime charged beyond a reasonable doubt. See United States v. Segna, 555 F.2d 226, 230-32 (9th Cir. 1977) (reversing for plain error where prosecutor's argument deprived defendant of benefit of reasonable doubt standard by stating that jury could acquit only if "convinced [the defendant was not sane] by scientific evidence"). "[T]he prosecutor in a criminal case has a 'special duty not to mislead.'" United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987) (citation omitted). The prosecutor's characterization of the law as allowing for acquittal only if the jurors decided that all of the government's witnesses were lying, was plain, inexcusable, error. (14)

In United States v. Vargas, 583 F.2d 380, 384, 386-388 (7th Cir. 1978), the Seventh Circuit found "plain error" in precisely this situation. Id. at 387. In Vargas, the prosecutor made an argument virtually identical to that made here (id.):

[T]hese federal agents have come in and testified under oath as to what they observed; and if you find the defendant not guilty, I want to you write on there that all of those people lied. Ricevuto is a liar. Garcia is a liar. Collins is a liar. Kowalski is a liar. Fanter is a liar.



The Seventh Circuit explained the obvious error in this argument:

Even assuming that the testimony of the prosecution and defense witnesses contained unavoidable contradictions, it of course does not follow as a matter of law that in order to acquit Vargas the jury had to believe that the agents had lied. If the jurors believed that the agents probably were telling the truth and that Vargas probably was lying -- or even if the jury was convinced that all the agents save Garcia were telling the truth and thought that Garcia probably was telling the truth -- it would have been proper to return a verdict of not guilty because the evidence might not be sufficient to convict defendant beyond a reasonable doubt. To tell the jurors that they had to choose between the two stories was error.



Vargas, 583 F.2d at 384, 387 (emphasis supplied) (holding that this "plain error" and another error in the prosecutor's closing "taken together, if not also individually, . . . mandate reversal"). See also United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987) (reversing where prosecutor made "patently misleading" argument that resolution of case hinged on veracity of FBI agents; "prosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying"); United States v. Reed, 724 F.2d 677, 681 (8th Cir. 1984) (prosecutor's argument that, in order to acquit, jury must believe defendant was telling truth and all government witnesses had lied, distorted burden of proof; conviction affirmed where objection sustained and curative instruction given). Cf. United States v. Stanfield, 521 F.2d 1122, 1125-26 (9th Cir. 1975) (reversing despite accurate instructions on standard of proof where court's comment hinging outcome on whether jury believed police or defense witnesses "obscured" the proper standard by ignoring "rule that even though defense evidence might be less believable than that of the Government, it was enough if all the evidence left [jury] with a reasonable doubt as to guilt"); United States v. Oquendo, 490 F.2d 161, 165 (5th Cir. 1974) (reversing where court cast the jury's ultimate determination whether to convict or acquit as mere credibility choice between defendant and government informer); United States v. (Leonard) Williams, 473 F.2d 507, 511 (5th Cir. 1973) (reversing where court's instructions "erroneously narrowed the credibility issue to an all or nothing proposition").

As the court pointed out in Vargas, the notion that a jury must find government witnesses to have lied in order to acquit is plainly wrong "[e]ven assuming that the testimony of the prosecution and defense witnesses contained unavoidable contradictions." Vargas, 583 F.2d at 387. It is even more obviously wrong where there is no such inconsistency. Here, Mr. xxxxxxx did not take the stand and his defense was not in irreconcilable conflict with the government's evidence.

The prosecutor argued that, in order to acquit, the jury must find that Detectives Centrella and Woodson had lied "when [they] said [Centrella] took that bag from right above the defendant's head." (Tr. 210). But Mr. xxxxxxx never challenged the truthfulness of this testimony, which was entirely consistent with his innocence. The prosecutor was also wrong that, in order to acquit, the jury must find that "Ms. Perpetua is lying when she says that she told Centrella that the bag that he had recovered was the bag that Mr. xxxxxxx or Mr. Lawrence was carrying." (Tr. 210). Again, the most the defense ever attempted to suggest was that Ms. Perpetua misidentified the bag through honest error (with her current memory of a black and yellow bag being the accurate recollection). Indeed, the jury could believe not only that Ms. Perpetua had told Centrella that she had seen the defendant with the recovered bag, but that Ms. Perpetua had in fact seen Mr. xxxxxxx carrying the bag and nevertheless have acquitted him under the knowledge and intent to distribute elements. Likewise, the jury did not, in order to acquit, have to find "[t]hat Detective Centrella is lying when he says that the defendant told him he was paid a hundred dollars to take the drugs to North Carolina" and "that Detective Woodson is lying when he said that he heard the defendant say the same thing." (Tr. 210). The defendant's statement as recounted by Centrella and Woodson was not a confession to possession with intent to distribute cocaine, but merely an admission to possessing the bag that had been found to contain drugs. (Tr. 101-02; 159). Defense counsel argued explicitly that "even if you accept their interpretation of the facts" and "[e]ven if you take a statement that they said he said, I was delivering a package," the jury should acquit because the government had failed to prove that Mr. xxxxxxx knew there were drugs in the bag, as opposed to something else of value, such as food stamps or government checks. (Tr. 208).

Here, therefore, the problem goes beyond that in Vargas. It is not just that the jurors could have acquitted even if they believed the government witnesses were "probably" telling the truth (but were not convinced of their testimony beyond a reasonable doubt); here, the facts were such that the jurors could acquit even if they were convinced beyond a reasonable doubt that the government's witnesses were telling the truth. The prosecutor's argument misdirected the jury from the real question -- whether it had met its burden on each element -- to a false all-or-nothing credibility call.

The prosecutor's error is analogous to that in Rawlings, in which the district court instructed the jury that it had to decide which set of witnesses -- the government witnesses or the defense witnesses -- was "telling the truth." 73 F.3d at 1148. The Court in that case concluded that "the judge's emphasis that credibility was the crucial issue" was plain error where the defense was misidentification -- "a matter not so much of credibility as of perception and recall." Id. (emphasis in original). "[C]ontrary to the judge's assertion, the jury could have believed that both Rawlings and the government witnesses testified as to what they believed and nevertheless have returned a verdict of acquittal." Id. Likewise here, contrary to the prosecutor's assertion, the jury could have believed one or two or three -- or even all -- of the government witnesses, and nevertheless have returned a verdict of acquittal.

2. The Court's Misleading Instructions

Here, as in Vargas and Rawlings, the erroneous focus on a false credibility choice was not the only error to mislead the jury. The court's directive to the jury that "you are going to have to decide what happened on November the 22nd at Union Station" (Tr. 216) distorted the burden of proof by suggesting incorrectly that the jury had to make a finding of historical fact.

[T]he jurors were not, as the court erroneously instructed, required to decide whom to believe or what actually occurred. They had to determine only whether the Government proved what it alleged had happened beyond a reasonable doubt. The court's emphasis on resolving the factual dispute was plainly inconsistent with its otherwise adequate burden of proof and reasonable doubt instructions.

Rawlings, 73 F.3d at 1148-49 (emphasis added). See also Commentary to Red Book Instruction 2.11 (Credibility of Witnesses) (explaining deletion of instruction describing jury's function as "to resolve [any] conflict and to determine where the truth lies"):

[T]hat language suggested that the jury was obligated to make an ultimate determination of historical truth. In fact, the jury is only obliged to determine whether the evidence . . . establishes guilt beyond a reasonable doubt. The jury is free to conclude that the government has failed to meet its burden of proof without the jury ever "determin[ing] where the truth lies." Nor need the jury "resolve conflict[s]" in the testimony; the jury is free to leave any such conflict unresolved, and may indeed find that the very existence of such a conflict, resolvable or not, diminished the strength of the government's case.



Red Book at p. 82.

Here, the court's error went beyond simply telling the jury to "decide what happened." (Tr. 216). By telling the jury that "the facts tell you whether the defendant is guilty or not guilty" (id.), the court suggested that the jury must first make historical factual findings, and that those findings would dictate the outcome. This, of course, is contrary to the actual standard of proof, under which the jurors need not make factual findings in the defendant's favor in order to acquit but must merely conclude that they have a reasonable doubt about the facts as alleged by the government. The court's erroneous description of the jury's function was made irreparably explicit when, in trying to clarify the constructive possession issue, the court gave directions that were in direct conflict with the reasonable doubt standard:

In other words, to bring it down to this bag that had the two pounds of cocaine in it, (15)

was it the defendant's or wasn't it. I mean, to put it as plainly as I can. If you find it was his, then he had constructive possession of it. If you find it was not his -- it was somebody else's, known or unknown -- then obviously he was not in possession. So you are going to have to make up your mind, at the most elementary level, was it his bag or was it somebody else's bag.

(Tr. 236) (emphasis added).

By giving the jury only two choices and telling them that, in order to acquit on the possession element, they had to find as an historical fact that the bag belonged to someone other than Mr. xxxxxxx, the court undermined entirely its earlier instructions on the standard of proof. See United States v. Stanfield, 521 F.2d 1122, 1124-25 n.1, 1126 (9th Cir. 1975) (court's instruction that jury had "two choices" and must decide whether officers found gun in passenger compartment or in trunk "fl[ies] in the face of the correct measure of proof in a criminal case").

The court's earlier stock instructions could not save the instructions as a whole. The fact that instructions were accurate in part does not render the instructions as a whole constitutional if it is "reasonably likely" that the jury relied to some degree on the faulty portion. United States v. Merlos, 984 F.2d 1239, 1242 (D.C. Cir. 1993) (Merlos I) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)). The instruction bringing the case down to an either/or factual choice -- the last thing the jury heard before retiring for the final time -- was so utterly inconsistent with the actual standard of proof that the jury could not possibly reconcile the two instructions. See Rawlings, 73 F.3d at 1149 (court's misleading instructions required reversal under plain error standard despite "its otherwise adequate burden of proof and reasonable doubt instructions"). See also United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994) ("Where two instructions conflict, a reviewing court cannot presume that the jury followed the correct one."); United States v. Rhone, 864 F.2d 832, 837 (D.C. Cir. 1989) (reversing where, "[a]t the very least, the instruction confused the jury on the very central issue of intent"); United States v. Alston, 551 F.2d 315, 319 (D.C. Cir. 1976) ("Although the district court properly reminded the jury on several occasions of the Government's burden of proof, we are unwilling to presume that the ambiguity created by [other misleading instructions] was thus dissipated"). (16)

3. The Jury's Continuing Confusion

This Court does not have to speculate as to the likelihood that this jury was confused as to what the government had to prove and by what standard. The jury expressed its confusion on both the standard of proof and the definition of constructive possession (A. 26, 27, 28). See also Tr. 237 (district court observing, "We now have a total of three notes on reasonable doubt and one on constructive and actual possession, so those things obviously bother them"). "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946). Instead of clearing away the confusion with "concrete accuracy," the court here -- against its own better judgment (17) -- proceeded to try to extemporaneously simplify the instructions in a way that was inaccurate and therefore only added to the jurors' confusion.

The court first stated the reasonable doubt standard backwards -- twice. See Tr. 235 ("You don't need that kind of a doubt [referring to freezing water example] to convict"); id. ("What you need to convict here is a doubt based on reason"). (18) The court then tried to bring the possession issue down to an "elementary level" by telling the jurors to "make up your mind" whether the bag was Mr. xxxxxxx's "or somebody else's." (Tr. 236). Given the irreconcilable conflict between these final instructions and the standard instructions on the government's burden of proof beyond a reasonable doubt, it is no wonder that the jurors left the courtroom "look[ing] puzzled." (Tr. 236). And given the way in which the court's supplemental instructions diluted the government's burden, it is no wonder that it took the previously uncertain jury only four minutes to reach a guilty verdict. Although Mr. xxxxxxx need not establish actual prejudice in this case, but merely that the errors were obvious, see Rawlings, 73 F.3d at 1148 n.3, this extraordinary timing does in fact establish a clear cause and effect relationship between the errors and the verdict.



CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court 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 Andre xxxxxxx





CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Andre xxxxxxx 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 Andre xxxxxxx have been delivered by hand to Asst. United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 28th day of June, 1996.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender





1. "A." refers to pages of the Appendix filed with this brief. "Tr." refers to pages of the sequentially-numbered transcripts of the trial proceedings, beginning on March 7, 1994, and ending on March 9, 1994. The entire trial transcript, from opening statements to verdict (Tr. 83-240), is reproduced at Tab A of the Appendix.

2. The parties stipulated that Mr. xxxxxxx's true name was Keith Lawrence. (Tr. 130-31).

3. The parties stipulated that a DEA chemist would testify that the brick of powder was 1,005 grams of a substance that was 89% cocaine hydrochloride. (Tr. 139). Detective Huffman testified that he made no effort to obtain fingerprints from the plastic in which the brick was wrapped because Centrella had already handled it so extensively. (Tr. 136-38). The court in its instructions characterized the fingerprint issue as "not terribly significant." (Tr. 217-18).

4. This statement was corroborated by Detective Woodson. (Tr. 159).

5. Ms. Perpetua later testified that the date was December 5, 1993. (Tr. 152).

6. There were in fact no dollar signs on the so-called tally sheet. (A. 24).

7. The prosecutor then vouched for the credibility of his witnesses:



If these police officers wanted to come in here and lie and tell you a story just to convict this xxxxxxx man, don't you think they could have done a better job? . . . But they didn't. They came in here, and they told you the truth.



The same thing with Ms. Perpetua. . . . Her memory is not perfect. Whose is? She's not lying.



(Tr. 211) (emphasis added).

8. There is no reference to this request in the transcript but, presumably, the request went unfulfilled since Judge Greene had not read the instructions from any text and the oral instructions had not yet been transcribed.

9. In United States v. (Corey) Boyd, 55 F.3d 667 (D.C. 1995), this Court found error under Rule 704(b) where the prosecutor recited a list of "hypothetical" facts exactly mirroring the evidence against the defendant and Officer Stroud testified that those facts were "consistent with" possession with intent to distribute. In Glenn, this Court found no plain error where "almost identical" testimony was given without objection in a trial predating the Boyd decision. 64 F.3d at 711. Although Mr. xxxxxxx's trial also predated Boyd, his case is different than Glenn. Here, the evidence that "this person" carrying the tally sheet "plan[ned]" to "dole out" cocaine was much more direct than the testimony in Glenn and Boyd. The error in this case was plain at least as of the Mitchell decision.

10. The prejudice here is far greater than that found insufficient to meet the plain error standard in Mitchell. In Mitchell, the persons challenging Stroud's testimony were not even the person on whose "intent to distribute" Stroud had opined. 996 F.2d at 423. With respect to the complaining co-defendants, the evidence of intent to distribute was overwhelming: Both had actually distributed drugs in identical packaging to an undercover officer moments before seizure of the nine ziplocks from their co-defendant. Id.

11. That instruction states:



Sometimes a lawyer's question suggests that something is a fact. Whether or not something is a fact depends on the witness's answer -- not the lawyer's question. A lawyer's question is not evidence.

12. In re Winship, 397 U.S. 358 (1970).

13. In Merlos II, this Court held that in light of the Supreme Court's decision in Sullivan v. Louisiana, 113 S. Ct. 2078 (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:



[T]he central premise of Sullivan applies with equal force in the plain error context: where the error consists of a misdescription of the reasonable doubt standard, 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.



Merlos II, 8 F.3d at 51. See also United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir.) ("under Sullivan, a constitutionally deficient reasonable doubt instruction is presumptively prejudicial"), cert. denied, 115 S. Ct. 98 (1994).

14. The prosecutor exacerbated this error by giving the jury his personal opinion of his witnesses' credibility. Tr. 211 ("[the police officers] came in here, and they told you the truth"; "[Ms. Perpetua's] not lying"). See United States v. (Janazzo) Boyd, 54 F.3d 868, 871-72 (D.C. Cir. 1995) (improper prosecutorial "vouching").

15. It was for the jury, not the court, to decide whether the bag contained cocaine. Earlier, the court had appeared to de-emphasize this element, just as it had purported to establish a hierarchy among the elements in Rawlings. See 73 F.3d at 1148-49. Specifically, the court here said (Tr. 224) (emphasis added):



As to whether this bag there with the white powder is cocaine is of course up to you to decide. But the only evidence we have on that is a stipulation that the chemist found it to be cocaine, so I would suggest that there isn't much for you to decide on that issue either, although that is your decision to make. What you do have to decide, however, is did the defendant possess it.

16. Mr. xxxxxxx's jurors were especially likely to be drawn to this faulty instruction, which because of its "nonlegal character might have been more easily comprehended and remembered than the standard instruction." United States v. Pinkney, 551 F.2d 1241, 1245 (D.C. Cir. 1976). Likewise, the fact that it was given as the final supplemental instruction, in response to a specific question and in an effort "to put it as plainly as I can" (Tr. 236), served to emphasize this incorrect instruction. See Rhone, 864 F.2d at 837 (fact that the trial judge "emphasized" flawed instruction "by delivering it in the form of an afterthought" reinforced conclusion that it was not harmless: "[W]e find it likely that the jury was sufficiently conscious of the instruction to have given it greater weight than a cold reading of the record might suggest").

17. This Court has warned that "[j]udicial attempts to clarify the meaning of the phrase 'reasonable doubt' by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead." Pinkney, 551 F.2d at 1244 & n.9 (D.C. Cir. 1976). The district court decided to go ahead and give its elaborative instructions fully cognizant of the "dange[r]" of attempting to "improv[e]" or "ad[d] to" reasonable doubt instructions (Tr. 233), or to give "examples" (Tr. 234).

18. While it is no doubt obvious to this Court that these errors were merely slips of the tongue, the Court cannot assume that already confused lay jurors would recognize them as such.