UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No.

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxxxxxxxxxxxx, 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 notice of appeal having been timely filed, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the court was without jurisdiction to enhance Mr. Almonte-xxxxxxx's sentence to a mandatory term of 20 years in prison where the enhanced penalty statute cited in the government's "Information as to Prior Drug Conviction" gave notice of only a 10-year mandatory minimum.

II. Whether appellant's trial attorneys provided ineffective assistance of counsel in 1) failing to inform him that he was facing a mandatory minimum sentence of 20 years in prison if convicted at trial where, if he had known of his exposure, there is a reasonable probability he would have accepted a plea offer which could have resulted in a sentence of as short as 121 months; 2) failing to assert a privacy interest in the tote bag the police claimed to have seen him carrying over his shoulder so as to establish standing to suppress the evidence found inside the bag; 3) failing to object to the joint possession instruction; 4) failing to object to certain statements by the trial court which placed an impermissible burden of proof on appellant.

III. Whether the trial court erred in refusing to grant a mistrial when the prosecutor elicited highly damaging hearsay testimony that an unidentified man by whom appellant allegedly placed the tote bag told police that he and appellant were traveling together.

IV. Whether the trial court erred when the jury asked for reinstruction on the definition of possession by refusing to delete the unsupported joint possession portion of that instruction merely because the court thought defense counsel had been "negligent" in not catching the error during the initial charge to the jury.

V. Whether the trial court plainly erred by making comments that led the jury to expect appellant to prove his innocence where Mr. Almonte-xxxxxxx subsequently rested without testifying or putting on any defense witnesses.

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 February 15, 1994, an indictment was filed (A. 12-13) (1) charging Mr. Jose Almonte-xxxxxxx with possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii) (Count One), possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(ii) (Count Two) (2) and possession with intent to distribute heroin in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C) (Count Three).

Mr. David George was appointed to represent Mr. Almonte-xxxxxxx. On September 13, 1994, a status hearing was held before the Honorable Thomas Penfield Jackson. The hearing was called at the request of the prosecutor, who wanted to clarify who would be representing Mr. Almonte-xxxxxxx at trial (9/13 Tr. 2). The prosecutor explained that he had received numerous calls over the previous three months from an attorney in New York named Hermena Perlmutter, stating that she was now Mr. Almonte-xxxxxxx's attorney and would be filing a notice of appearance, but that to the prosecutor's knowledge that had never been accomplished (9/13 Tr. 2-3). Mr. George had not returned his phone calls (9/13 Tr. 3). Mr. George confirmed that he was still counsel of record and was prepared to go forward on the trial date of October 11 (9/13 Tr. 3-4). Upon inquiry from the court, Mr. Almonte-xxxxxxx stated through his Spanish-speaking interpreter that he had spoken with Ms. Perlmutter and that he was expecting her to visit him later in the week (9/13 Tr. 4).

On October 3, 1994, a status hearing was held before the Honorable Thomas A. Flannery, who had agreed to take the case over from Judge Jackson (10/3 Tr. 2). Again Mr. George stated that he would be ready for trial on October 11 (10/3 Tr. 2).

On October 5, 1994, the government filed an "Information as to Prior Drug Conviction" pursuant to 21 U.S.C. 851(a)(1), stating (A. 42-43) (emphasis added):

The United States of America, by its attorney, the United States Attorney for the District of Columbia, pursuant to the provisions of Title 21, United States Code, Section 851(a)(1), respectfully informs the Court that the defendant, Robert W. Montgomery, was convicted in 1991 of Attempted Criminal Sale of Controlled Substance in the Supreme Court of New YorkAs a result of this prior conviction, the defendant is subject to the enhanced penalties provided in Title 21, United States Code, Section 841(b)(1)(B)(iii).

The case number in the caption includes Judge Jackson's, rather than Judge Flannery's, initials and the copy in the district court file has "Jackson, J." handwritten at the top of the page (A. 42). The certificate of service indicates that it was served on Mr. George by mail on October 5, 1994 (A. 43).

On October 11, 1994, Judge Flannery held a status conference at which Ms. Perlmutter entered her appearance as retained lead counsel and Mr. Lloyd Elsten entered his appearance as retained local counsel (10/11 Tr. 2; A. 44-45). Mr. George was apparently not present (10/11 Tr. 1). Mr. Almonte-xxxxxxx's presence was waived (10/11 Tr. 3-4). Judge Flannery told counsel to be on call to begin as soon as his ongoing trial concluded (10/11 Tr. 3).

Trial commenced two days later on October 13, 1994. The court denied Mr. Almonte-xxxxxxx's suppression motion without an evidentiary hearing on the ground that defense counsel had not alleged that Mr. Almonte-xxxxxxx had a reasonable expectation of privacy in the bag in which the drugs were found (10/13 a.m. Tr. 4-5, 32-36). The jury returned a verdict of guilty on all three counts on October 18, 1994.

The original sentencing date was postponed because of Ms. Perlmutter's unavailability (1/13 Tr. 2). On February 10, 1995, a sentencing hearing was held at which only Mr. Elsten appeared on behalf of Mr. Almonte-xxxxxxx (2/10 Tr. 1). The court continued the sentencing after Mr. Elsten challenged the adequacy of notice of the 20-year mandatory minimum sentence enhancement in that it listed a "Robert W. Montgomery" as the person who had a prior drug conviction, and presented testimony from Mr. Almonte-xxxxxxx that he had first learned of the enhancement notice on the original sentencing date and that no one had told him before he went to trial that he was facing a mandatory 20-year sentence (2/10 Tr. 3-28).

On April 21, 1995, the defendant appeared for sentencing represented by Mr. Elsten (4/21 Tr. 1). The court granted the prosecutor's oral motion to amend the Information insofar as it named "Robert W. Montgomery" (4/21 Tr. 7, 12), ruled that the Information was adequate (4/21 Tr. 15), and imposed a mandatory minimum sentence of 20 years in prison and 10 years of supervised release on Count One, and concurrent sentences of 168 months in prison and six years of supervised release on Counts Two and Three (4/21 Tr. 15-16; A. 53-56). Mr. Almonte-xxxxxxx filed a notice of appeal on April 26, 1995 (A. 62).

B. Statement of Facts

1. The Suppression Motion

On May 2, 1994, Mr. George filed a motion to suppress all evidence seized at the time of Mr. Almonte-xxxxxxx's arrest (A. 14-17). However, with respect to Mr. Almonte-xxxxxxx's interest in the bag in which the drugs were found, and which the police claimed to have seen him carry off a bus, the motion alleged that when the Spanish-speaking officer "shouted at Mr. xxxxxxx and told him that the bag was his" (A. 15):

Mr. xxxxxxx responded that the bag was not his and that he had no control over the bag and that if they wanted to search it that they could go right ahead as he was not in a position to grant or deny them permission to search.

The government initially responded by arguing that Mr. Almonte-xxxxxxx was not illegally seized and voluntarily consented to the search of the bag (A. 18-25), suggesting only in a footnote (A. 24) that he lacked standing. In a supplemental memorandum, the government argued that appellant was not entitled to a hearing because he had failed to allege that he had a reasonable expectation of privacy in the bag (A. 26-30).

On the morning of trial, when Ms. Perlmutter was late arriving from New York, the court suggested to Mr. Elsten that the defendant appeared to lack standing. Mr. Elsten responded (10/13 a.m. Tr. 4-5) (emphasis added):

I think the argument that Mrs. Perlmutter intends to make . . . is that regardless of what happens when the police spoke to Mr. Almonte-xxxxxxx that they made a stop of him which was an unconstitutional stop and that this Court should allow her to argue in suppression that any statement as to abandonment or any standing question was the result of an illegal stop and interrogation.

When Ms. Perlmutter arrived, she argued that the officers had physically blocked Mr. Almonte-xxxxxxx from leaving and that the contraband subsequently attributed to him should be suppressed (10/13 Tr. a.m. 33-34). The following exchange ensued (10/13 a.m. Tr. 34) (emphasis added):

The Court: Is he claiming that they are his bag?



Ms. Perlmutter: No.



The Court: How can he move to suppress [the contraband] if it isn't his bag?



Ms. Perlmutter: No, your Honor, I cannot say that even for the purpose of suppression that it was his bag.

No argument was made along the lines suggested by Mr. Elsten, i.e., that the "abandonment" was the fruit of the illegal seizure. The motion to suppress was therefore denied without a hearing on the ground that Mr. Almonte-xxxxxxx had failed to allege a privacy or possessory interest in the bag searched (10/13 a.m. Tr. 36).

2. The Evidence at Trial

The government presented its case through the six police officers who participated in Mr. Almonte-xxxxxxx's arrest, a chemist, and a drug expert. Three of the police officers testified that on February 1, 1994, at approximately 5:15 p.m., they saw Mr. Almonte-xxxxxxx disembark a bus that had originated in New York City and that he was carrying a black (3) tote bag over his shoulder (10/14 Tr. 19-20; 75, 10/17 Tr. 10). As he walked across the bus terminal lobby, the man who had disembarked immediately ahead of him turned around and appeared to speak to him (10/14 Tr. 20, 24-25, 77-78, 10/17 Tr. 10, 12). (4) Mr. Almonte-xxxxxxx walked into the waiting area, placed the black tote bag either beside (10/14 Tr. 25, 26, 41, 78, 88), underneath (10/14 Tr. 100), or halfway underneath (10/14 Tr. 96-97, 101) a chair which the other man had occupied, and stepped 3-4 feet to two telephones located directly across from the chair (10/14 Tr. 25, 45, 78, 88, 10/17 Tr. 12-13). (5) Mr. Almonte-xxxxxxx then unrolled a small piece of paper, (6) put a coin in one of the pay phones, punched some numbers, and hung up (10/14 Tr. 78-79). Because appellant punched in more than seven numbers, Detective Jones "assumed he was paging somebody" (10/14 Tr. 79).

When Mr. Almonte-xxxxxxx stepped back from the phone, Jones approached him, identified himself as a police officer, explained the purpose of the interdiction unit, and asked if appellant understood (10/14 Tr. 81). When appellant "took a step back from me and he said, no, like he didn't understand what I was saying," Jones asked Detective Pena, who had taken a seat along the wall beside the right phone (10/14 Tr. 49; 10/17 Tr. 40 45-46), approximately 3-5 feet behind appellant (10/14 Tr. 49, 82), to finish the interview (10/14 Tr. 81-82).

Detective Pena identified herself in Spanish and asked Mr. Almonte-xxxxxxx if he understood Spanish (10/17 Tr. 41). Mr. Almonte-xxxxxxx first said, "no," then quickly said "yes" (10/17 Tr. 41-42). He appeared to be nervous and surprised (10/17 Tr. 41). When Pena explained the purpose of the interview and asked him if he had any luggage, Mr. Almonte-xxxxxxx said "no" and indicated that all he had was what he had on (10/17 Tr. 42). Pena relayed that information to Detective Jones, who picked the bag up from alongside the last chair and said, "ask him if this is his bag" (10/14 Tr. 83, 113; 10/17 Tr. 42-43, 46-47). When Pena did so, Mr. Almonte-xxxxxxx repeated constantly, "No, no, no, I told you. All I have is what I have on" (10/17 Tr. 42-43). Jones then handed the bag to Detective Oxendine (10/14 Tr. 84; 10/17 Tr. 110), who was standing to the side of the second man, less than four feet away (10/14 Tr. 114-116; 10/17 Tr. 43). Oxendine asked the man in the last chair whether the bag was his (10/17 Tr. 43, 110). When he said "no" (10/17 Tr. 43-44) she opened the bag, found a cereal box containing drugs (10/17 Tr. 111), and gave an arrest signal (10/14 Tr. 85; 10/17 Tr. 111, 142). (7) A bus ticket showing travel from New York to Washington was recovered from Mr. Almonte-xxxxxxx's person (10/17 Tr. 47-49).

The second man was not arrested (10/17 Tr. 77). Detective Fleming had approached him at the same time Jones approached Mr. Almonte-xxxxxxx (10/14 Tr. 51-52, 80; 10/17 Tr. 66-67, 83-85) (8) but the second man refused to give his name (10/17 Tr. 76). (9) Fleming testified that he did not arrest the second man "[b]ecause he didn't have the bag in his possession" (10/17 Tr. 101). Oxendine, who had acted as Fleming's backup during the interview of the second man (10/17 Tr. 110), testified that the second man "was not a suspect nor was that person under investigation" (10/17 Tr. 148). The chemist testified that the substances recovered from the cereal box were 485.3 grams of crack (80% purity), 496.6 grams of powder cocaine (70% purity) and 26.43 grams of heroin (72% purity) (10/17 Tr. 169-175). The drug expert testified that the street value of the seized drugs was approximately $150,000 (10/18 Tr. 18-25).

Mr. Almonte-xxxxxxx rested after offering into evidence the fingerprint examination report indicating that fingerprints taken from the cereal box could not be identified (10/18 Tr. 29-31, 54).

3. The Mistrial Motion.

The prosecutor elicited the following improper hearsay testimony from Detective Fleming (10/17 Tr. 68):

I asked [the other man] where was he coming from and going to, and I asked him was he traveling with anybody. He replied that he was traveling with somebody, and he pointed to the gentleman that was on the telephone, later identified as --Defense counsel objected that the testimony was improper hearsay going to "the heart of the case" from an unidentified third party not available for cross-examination (10/17 Tr. 68-69). The court denied defense counsel's request for a mistrial (10/17 Tr. 72) and instead instructed the jury as follows (10/17 Tr. 76):

Ladies and gentleman of the jury, I instruct you to disregard for all purposes any statement allegedly made by the unavailable witness, made to Detective Fleming, which concern the defendant.

Defense counsel pressed the mistrial motion notwithstanding the attempted curative instruction. See 10/17 Tr. 75 (Mr. Elsten: ". . . [T]here is no instruction that the Court can give on this issue that unrings the bell or takes this out of the jury's hearing and we are not, by giving the Court alternative language, . . . accepting the instruction").

4. The Joint Possession Instruction

During discussion of the defense theory of the case instruction, which stated in part that "a second young light-skinned man possessed the bag at the time of the police seizure of the bag underneath the seat" (10/18 Tr. 63), defense counsel stated that the prosecutor was free to argue constructive and joint possession in closing (10/18 Tr. 50). The prosecutor did not, however, make that argument. Instead, boxed in by Detective Fleming's testimony that the second man "didn't have the bag in his possession" (10/17 Tr. 101), the prosecutor focused on Mr. Almonte-xxxxxxx's alleged actual possession of the bag as he disembarked the bus and explicitly declined to argue that the two men were in joint possession of the bag (10/18 Tr. 58) (emphasis added):

[W]hether he put that bag so it is halfway under the chair or all the way under the chair or next to the chair, the fact is he had it on his shoulder as he walked across from the gates and into the waiting area and went to the phone and he put it down on the ground and was looking at it as he was talking on the phone and in that bag was a hundred fifty thousand dollars' worth of drugs. now, you can ask yourselves and answer for yourselves what you think their relationship is and whether you think they were partners or associates or friends or acquaintances or they just met each other coming off that bus, they had never seen each other before. That's for you to think about if you think that's important, but the fact is, ladies and gentlemen, this man Almonte-xxxxxxx had Government's Exhibit 3, the black bag with the drugs.

In rebuttal, the prosecutor essentially defended the innocence of the second man, belittling defense counsel's argument that "there is no evidence against her client, yet somehow there is more evidence or there is a better case to be made against this second man who never touched the drugs and was not in any way physically connected to the drugs" (10/18 Tr. 82) (emphasis added).

With respect to the definition of "possession," the court instructed the jury without objection (10/18 Tr. 96-97) (emphasis added):

Now, there are two kinds of possession, actual and constructive. A person has actual possession of something if he has direct physical control over it. He has constructive possession of something when he does not have direct physical control over it but knowingly has both the power and the intent at a given time to control it either by himself or through another person.Possession may be shared with one or more people. Mere presence near something or mere knowledge of its location is not enough to show possession. To prove possession the government must prove beyond a reasonable doubt that the defendant had actual or constructive possession of the drugs alone or with someone else.

Twenty minutes after retiring to deliberate, the jury sent out the following note (A. 46):

Request of the judge[']s summation (particularly the definition of possession) which he stated after the closing arguments.

The court refused defense counsel's request that the possession instruction be given in the context of the other substantive instructions, particularly the mens rea requirements (10/18 Tr. 101-103). Mr. Elsten then objected to the inclusion of any of the above-underscored joint possession language (which is optional bracketed language in RedBook Instruction 3.08) because it "does not comport with the government's theory in this case," acknowledging that he was not sure whether the court had read those portions during the initial charge (10/18 Tr. 103-105). The judge confirmed that he had included the joint possession portions and stated, "You can't raise an objection at this late stage when I have already given an instruction" (10/18 Tr. 103-105, 106). Defense counsel argued that, even if he had made a mistake by not objecting to the initial instruction, it was not too late to object to the reinstruction (10/18 Tr. 106).

The court then stated (10/18 Tr. 106) (emphasis added): "I think you have been negligent at this point. It has never been the government's theory though, has it, that they had joint possession?" The prosecutor argued that he should not be bound by Detective Oxendine's testimony that the second man was not a suspect and that there was evidence that they spoke to each other and that the drugs were placed by the second man's seat (10/18 Tr. 108). The court overruled defense counsel's objection and reinstructed the jury on the definition of possession with the joint possession language included (10/18 Tr. 108-109). The jury reached its verdict twenty minutes later (A. 47).

5. The Enhanced Sentence

Immediately before the defense rested, Mr. Elsten asked the court to inquire of Mr. Almonte-xxxxxxx on the record concerning his waiver of his right to testify (10/18 Tr. 31-34). Mr. Elsten stated that he and Ms. Perlmutter had explained to their client "the advantages and disadvantages, the tactics of trial and the probable import of the Federal Sentencing Guidelines which we have explained to him as a minimum sentence of at least eighteen years" (10/18 Tr. 32) (emphasis added). Mr. Almonte-xxxxxxx confirmed on the record that his lawyers had so informed him and that he had decided not to testify (10/18 Tr. 33). Although the prosecutor would later claim that the Information as to Prior Drug Conviction required a minimum sentence of 20 years, he said nothing to contradict defense counsel's or Mr. Almonte-xxxxxxx's contrary understanding, even though the prosecutor specifically referenced the prior conviction at the time. (10)

Nevertheless, the Presentence Report concluded that on Count One Mr. Almonte-xxxxxxx was subject to a statutory sentence of "[n]ot less that 20 years nor more than life," citing 21 U.S.C. 841(a)(1), 841(b)(1)(A)(iii) & 851(a)(1) -- well over the guideline range of 168-210 months (based on an Offense Level of 34 and Criminal History Category of II).

At the first sentencing hearing, Mr. Elsten argued that the court should not enhance Mr. Almonte-xxxxxxx's sentence because, first, the enhancement notice did not comply with 21 U.S.C. 851 in that it stated that a "Robert W. Montgomery" had incurred the prior conviction being relied upon to enhance Mr. Almonte-xxxxxxx's sentence (2/10 Tr. 5). Second, counsel informed the court that Mr. Almonte-xxxxxxx had not been informed prior to trial that he was facing a mandatory minimum of 20 years and argued that "had this young man, in his language, with competent counsel and with an adequate information, been presented with the fact that it was going from fourteen to twenty, he could have had a fair chance to say 'I don't want this trial,' and I think that's the intention of these protective provisions" (2/10 Tr. 6-8).

The court then noted that it was disturbed at having to impose such a harsh sentence on these facts (2/10 Tr. 9):

Apparently, in New York, he was convicted of selling twenty dollars worth of cocaine base and placed on probation for five years. Because of that, his sentence goes from approximately a possible twelve years or whatever -- I'm not sure what it would be (11) -- to twenty. It seems like quite a jump for what he had done previously.

The prosecutor argued that the Robert Montgomery reference was a typographical error that did not detract from the substance of the notice (2/10 Tr. 10):

I am responsible for doing that, I actually typed -- I believe I drafted that, and I'm sure what I did is I got a copy of that on the word processor, and changed some of the information and neglected to change the name in the body.

As to appellant's lack of notice, the prosecutor stated (2/10 Tr. 11, 12) (emphasis added):

For counsel to represent to the court, as he has, that, had the defendant been on notice that he was facing twenty years, he may have done something differently in terms of a plea is hard to fathom, when counsel were present and his co-counsel were present when we had plea discussions, in which the government offered to withdraw the papers -- and I made it perfectly clear again and again repeatedly that the defendant was looking at twenty years if he was convicted in this case, based on the repeat papers; in fact, I can represent to the court that I was pleading -- I suggested in the strongest possible terms that a plea be entered in this case and that the plea -- that those papers could at least perhaps be withdrawn if they were discussing a plea.



. . .



[The plea negotiations] never advanced to the point where we got anywhere, Your Honor. But I know I asked, "Isn't there some way that this case can be disposed of?" I was aware, and I made certain that counsel was aware, that there was an enormous potential downside to the defendant if he were to be convicted with the quantity of drugs such as they were in this case.

The following exchange then took place (2/10 Tr. 14-16) (emphasis added):

The Court: Well, surely you were on notice of the fact that there was this information.



Mr. Elsten: I had no -- I myself had no information as to the enhancement before the day of trial, none. I did not receive --



The Court: Did Ms. Perlmutter?



Mr. Elsten: I don't know, sir, but what I'm trying to focus on --



The Court: It seems to me -- I'm not saying this critically, but how could counsel say he investigated the case carefully, if he didn't know what was in the file, namely, the possible enhancement?



Mr. Elsten: I did not have that.



The Court: That's a very important thing in this case. It seems to me counsel should have known that and discussed that with his client very carefully and with the prosecutor, to avoid the possible heavy additional sentence. You didn't know about that?



Mr. Elsten: What I'm trying to argue to this court is that Mr. George didn't turn over the defective notice of prior conviction to me, I did not get that.



The Court: Was that in the court file?



Mr. Elsten: It is in the court file.



The Court: Did you check the court file?



Mr. Elsten: I did not see that notice in its condition.



The Court: Did you check the court file and the pleadings?



Mr. Elsten: No, I did not. What I'm arguing to this court is, because Mr. George never reviewed that document with Mr. xxxxxxx --



The Court: Nor did you.



Mr. Elsten: -- Nor did I, Mr. xxxxxxx was not on notice of that prior conviction. The purpose and the intent of 21-851 has not been accomplished in this case, and it would not be fair --



The Court: Well, if it wasn't accomplished, it wasn't accomplished because of failure of counsel to carry out their duties.

Mr. Almonte-xxxxxxx then testified through an interpreter that he first learned of the Information when Mr. Elsten showed it to him in the cellblock on the original sentencing date (2/10 Tr. 20-21, 27). He testified that based on his discussions with Ms. Perlmutter, he had understood that he was confronting 14 years if he pleaded guilty and "fourteen years or a little bit more" if he was convicted at trial (2/10 Tr. 22-24). He testified that he knew he would get more than 14 years if he was convicted at trial "but they never told me twenty years" (2/10 Tr. 23).

The prosecutor then offered to order the transcripts of the prior court appearances to determine whether he had ever noted the filing of the Information on the record (2/10 Tr. 25). He explained again that he had hoped to negotiate a plea and that, with acceptance of responsibility credit, a plea could have resulted in a sentence of less than 14 years (2/10 Tr. 25) (emphasis added):

I spoke with Mr. Elsten and Ms. Perlmutter, and made clear to them that I had filed that, so that -- in the hopes that this case could be resolved, and it was clear that, had there been a plea with the additional three-point reduction for acceptance of responsibility or at least two-point reduction for acceptance of responsibility, it would have gone below 168 months, (12) and there was some room there -- it was my hope at the time that there was some room that might encourage a plea, if the government was willing to withdraw that -- those enhancements.

The court postponed the sentencing, at which time defense counsel argued that the transcripts show that the Information was never mentioned on the record before trial, let alone corrected (4/21 Tr. 2-6). The prosecutor then moved to correct the improper reference to Robert W. Montgomery (4/21 Tr. 7). He argued that the defendant's claim that he would have accepted a plea if he had known of the 20-year mandatory minimum was inconsistent with his claim of innocence throughout the trial and refusal to speak to the probation officer about the offense and urged the court to explore it further under oath (4/21 Tr. 8; A. 49-52). Mr. Elsten stated that Mr. Almonte-xxxxxxx had already been cross-examined with respect to the notice issue and that, in order to protect his appeal rights, he would assert the privilege against self-incrimination to any questions regarding his culpability in this case (4/21 Tr. 9-10). Upon inquiry from the court, Mr. Almonte-xxxxxxx confirmed, as he had at the previous hearing (2/10 Tr. 21), that he had been convicted of the crime set forth in the enhancement notice (4/21 Tr. 10-12). The court then granted the government's oral motion to amend the name listed in the Information (4/21 Tr. 12), held the Information adequate (4/21 Tr. 15) and sentenced Mr. Almonte-xxxxxxx to the mandatory minimum sentence of 240 months in prison. The court subsequently filed a Memorandum setting forth its reasons for allowing amendment of the Robert Montgomery reference (A. 57-61). SUMMARY OF ARGUMENT

The trial court was without authority to enhance appellant's sentence to a mandatory term of 20 years in prison because the enhanced penalty statute cited in the government's enhancement information gave notice of only a 10-year mandatory minimum. All courts that have considered the issue have found compliance with the requirements of 851 to be jurisdictional. To the extent the notice could have been interpreted as exposing appellant to a 20-year mandatory minimum, that possibility was eliminated when the prosecutor said nothing as defense counsel stated in open court that appellant was probably facing 18 years if convicted. Under the statute, the defendant must have proper notice "before trial" so he can determine whether to enter a plea or go to trial fully aware of the consequences of a jury verdict against him. Even purely "clerical mistakes" (which this error was not) must be corrected "prior to the pronouncement of sentence" (which this error was not). Defective notice under 851 can never be harmless.

Mr. Almonte-xxxxxxx's trial attorneys provided ineffective assistance of counsel by failing to inform him that enhancement papers had been filed under which he was facing a mandatory minimum sentence of 20 years in prison if convicted at trial. Strickland v. Washington, 466 U.S. 668 (1984). All courts to consider the matter have held that the Sixth Amendment is violated where there is a "reasonable probability" that, but for counsel's errors, the defendant would have pleaded guilty so as to obtain a lesser sentence. See, e.g., United States v. Day, 969 F.2d 39 (3d Cir. 1992). Because the record in this case reveals that the prosecutor was willing to withdraw the enhancement notice in exchange for a plea and that, with credit for acceptance of responsibility, appellant would have been facing a guideline sentence of as low as 121 months if he had pleaded guilty, this Court can conclude that there is a "reasonable probability" that had he known he was facing a mandatory 240-month sentence, appellant would have accepted the plea.

Appellant's lawyers were also ineffective in defeating their own suppression motion by failing to assert a privacy interest in the black bag and in failing to object to the original joint possession instruction or the burden-shifting comments made by the court.

The trial court erred in refusing to grant a mistrial when the prosecutor elicited Detective Fleming's hearsay testimony that the second, unidentified, man said he was traveling with appellant. As in United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1992), the court's instruction to disregard the inadmissible hearsay was insufficient given the devastating nature of the improper testimony. Any chance that the jury could have ignored that testimony was eliminated by the improper joint possession instruction, which encouraged the jury to speculate that the two men might have shared possession of the bag. The government did not try to prove and could not have proved joint possession. The trial court erred in refusing to correct the unsupported instruction merely because the court thought defense counsel had been "negligent" in not catching the error during the initial charge to the jury.

Finally, the trial court plainly erred by instructing defense counsel to "restrict your remarks to what you intend to prove" (10/14 Tr. 13), asking the jurors in voir dire whether they would believe a police officer over "somebody else [who] testified in contradiction" (10/13 p.m. Tr. 16), and cautioning the jurors not to discuss the case "until you have heard all the evidence on both sides of the case" (10/13 p.m. Tr. 69). There is a "reasonable likelihood," Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994), that these statements shifted the burden of proof by setting up an (ultimately unfulfilled) expectation in the jurors' minds that the defendant would present witnesses to contradict the police.

ARGUMENT



I. THE COURT LACKED JURISDICTION TO ENHANCE APPELLANT'S SENTENCE TO A 20-YEAR MANDATORY MINIMUM BECAUSE THE GOVERNMENT FAILED TO COMPLY WITH THE NOTICE REQUIREMENT OF 21 U.S.C. 851(a)(1)

A. Standard of Review

The legality of a sentence enhancement under 21 U.S.C. 851 "presents a question of law, which we review de novo." United States v. Gonzalez-Lerma, 14 F.3d 1479 (10th Cir.), cert. denied, 114 S. Ct. 1862 (1994). Failure to comply with 851(a) by filing the requisite notice prior to trial deprives the district court of jurisdiction to impose an enhanced sentence. Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (government conceded "compliance with 851 to be a jurisdictional prerequisite" to an enhanced sentence); United States v. Wright, 932 F.2d 868, 882 (10th Cir.), cert. denied, 112 S. Ct. 428 (1991); United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983) ("Unless and until . . . the government files and serves an information as required by Sec. 851, the district court has no power to act with respect to an enhanced sentence; it can no more enhance the sentence than it could impose imprisonment under a statute that only prescribes a fine"); Hardy v. United States, 691 F.2d 39, 42 (1st Cir. 1982) ("the court was without authority to impose the sentence unless the statutory requirements were met") (emphasis in original).

Because compliance with 851(a) is jurisdictional, the fact that defense counsel did not specifically object that the notice referenced a provision enhancing to only ten (rather than twenty) years does not affect the scope of this Court's review. See Kelly, 29 F.3d at 1112-13 (raising lack of jurisdiction sua sponte in 2255 appeal and vacating enhanced sentence even though defendant had failed to raise his 851(a) claim at trial or on direct appeal; failure to comply with 851 is a jurisdictional defect that cannot be procedurally defaulted); United States v. Novey, 922 F.2d 624, 627 (10th Cir.) (although the defendant did not raise the government's lack of compliance with 851 in the district court, the court was without authority to impose an enhanced sentence unless the statutory requirements were met; appellate court could therefore consider question on merits), cert. denied, 111 S. Ct. 2861 (1991); Hardy, 691 F.2d at 41-42 (vacating sentence and remanding where 2255 petition alleged lack of 851 notice, even though defendant had failed to object at trial or on direct appeal and did not deny or challenge prior conviction which was basis for enhancement). Cf. Neary v. United States, 998 F.2d 563, 565 (8th Cir. 1993) (suggesting that even a knowing waiver of 851 compliance in conjunction with a plea might not be recognized; finding purported waiver ineffective where no one advised defendant that government's lack of compliance with 851 precluded an enhanced sentence).

B. The Government's "Information as to Prior Drug Conviction" Referenced An Enhanced Penalty Statute Providing For A Mandatory Minimum Sentence of Only Ten, Rather Than Twenty, Years.Under 21 U.S.C. 51(a)(1):

No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. . . . Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.

The purpose of this notice requirement is to enable a defendant to "determine whether he should enter a plea or go to trial, and to plan his trial strategy with full knowledge of the consequences of a potential jury verdict." United States v. Johnson, 944 F.2d 396, 407 (8th Cir.), cert. denied, 112 S. Ct. 646 (1991). See also Kelly, 29 F.3d at 1107 (purpose of 851(a) is to inform defendant of severe consequences if convicted so as to "lead to better informed decisions whether to proceed to trial"); United States v. Velasco, 847 F. Supp. 580, 587 (N.D. Ill. 1994) ( 851 notice "provides the defendant with the information he needs to determine whether he should enter a plea or go to trial"). "[B]ecause of the important due process interests at stake, courts have long required strict compliance with the filing and notice requirements of 851(a)(1)." Id. at 586. (13)

Here, the Information did "stat[e] in writing the previous convictions to be relied upon" (21 U.S.C. 851(a)) (once the "Robert W. Montgomery" amendment was granted), but it remained utterly misleading with respect to the "enhanced penalties" it informed Mr. Almonte-xxxxxxx he was "subject to" "[a]s a result of this prior conviction" (A. 42). By directing the reader to the "enhanced penalties provided in Title 21, United States Code, Section 841(b)(1)(B)(iii)" (A. 42), the notice pointed to the enhanced 10-year mandatory minimum sentence applicable to possession with intent to distribute more than 5 grams of crack cocaine (a crime subsumed within the Count One charge of possession with intent to distribute more than 50 grams of crack cocaine). Because the Information gave notice of only a 10-year mandatory minimum, the court was without authority to apply the 20-year mandatory minimum which would have been available (with proper notice) under 841(b)(1)(A)(iii) -- even assuming that the Information was sent to, and received by, Mr. George. (14)

To the extent the prosecutor intended the Information to give notice of a 20-year mandatory minimum under 841(b)(1)(A)(iii), his error in citing the 10-year enhancement provision was not subject to correction as a "clerical" error because it was substantively misleading. Even assuming a reader would suspect that the reference to 841(b)(1)(B)(iii) was unintended, since that section was not charged in the indictment, it would not have been at all obvious which section the government had intended to cite. While counsel might have assumed the prosecutor meant to cite 841(b)(1)(A)(iii) (the enhanced 20-year minimum for more than 50 grams of crack as charged in Count One), it was equally as likely that the prosecutor meant to cite 841(b)(1)(B)(ii) (the enhanced 10-year minimum for more than 500 grams of cocaine powder as originally charged in Count Two). It is entirely within the government's discretion whether to file a 851 information at all and it would be reasonable to assume that the prosecutor meant only to ensure a mandatory 10-year sentence on Count Two in the event of a Count One acquittal, and not to expose a mere drug mule to the draconian penalty of 20 years in prison. See Olson, 716 F.2d at 853 (noting that Congress amended enhancement procedure in 1970 to put enhancement in government's discretion in part because of "prosecutorial reluctance to prosecute where the mandatory penalties seemed to be out of line with the seriousness of the offense").

The Information on its face gave notice of only a 10-year mandatory minimum. To the extent there was any possibility that the Information could be interpreted as giving notice of a 20-year mandatory minimum, that possibility was eliminated when the prosecutor stood mute as defense counsel stated in open court that he had advised Mr. Almonte-xxxxxxx that he was facing an 18-year sentence (10/18 Tr. 32-34). Substantive amendments like the one required here may be made only "before trial" under 851(a)(1) -- the point at which the defendant must be on notice of the enhanced penalty so as to make an intelligent decision whether to proceed to trial or bargain for a reduced sentence.

Even if the error was a "clerical mistake" as that term is used in 851(a)(1), the statute makes clear that such errors may be corrected only "prior to the pronouncement of sentence." The prosecutor had every opportunity to correct the deficient notice before sentence was pronounced and failed to do so. The defense challenged the adequacy of notice on February 10, 1995, specifically pointing to the "Robert W. Montgomery" error and alerting the prosecutor that no one had told Mr. Almonte-xxxxxxx he was facing 20 years. Even assuming the penalty section citation could be considered merely a "clerical mistake," the prosecutor had from that date until sentencing on April 21, 1995, to amend the notice to allege the 20-year enhancement penalty. Instead, the prosecutor waited until moments before pronouncement of sentence and then moved orally to amend the "Robert W. Montgomery" error, never filing or serving an amended information in writing.

The prosecutor's failure to put a defendant on proper notice of a potential enhancement pursuant to 851(a)(1) cannot be harmless. See Olson, 716 F.2d at 853 ("Harmless error cannot give the district court authority that it does not possess"). Therefore, at a minimum, the 240-month sentence on Count One must be vacated and the case remanded for resentencing under the guidelines. (15)

II. MR. ALMONTE-xxxxxxx'S TRIAL ATTORNEYS DENIED HIM EFFECTIVE ASSISTANCE OF COUNSEL.

A. Standard of Review

To obtain relief for a violation of the Sixth Amendment right to effective assistance of counsel, appellant must show (1) that his attorneys' performance was, under all the circumstances, unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687-694 (1984).

B. Mr. Almonte-xxxxxxx Was Prejudiced By His Attorneys' Failure To Inform Him That He Was Risking A 20-Year Mandatory Minimum Sentence By Choosing To Go To Trial.

In Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985), the Supreme Court held that the two-part standard set forth in Strickland applies equally "to ineffective assistance claims arising out of the plea process" and ruled that a plea is invalid under the Sixth Amendment where "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." This Court has reversed under Hill where counsel failed to inform his client of a legal development that reduced the value of her plea bargain. United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990). See also United States v. Streater, 1995 WL 722563 (D.C. Cir. Dec. 8, 1995) (counsel ineffective where defendant pleaded guilty based on misadvice that he could not deny knowledge of drugs at trial given counsel's contrary assertion at suppression hearing). Although this Court has not had occasion to reach the converse situation -- where a defendant's decision not to plead guilty and to proceed to trial was infected by inadequate legal advice -- "all federal and state courts presented with this issue [have concluded] that the converse circumstances . . . also give rise to a claim of ineffective assistance of counsel." In re Alvarnaz, 2 Cal.4th 924, 934-35, 8 Cal.Rptr.2d 713, 719-20 (1992) (footnote collecting cases omitted).

Both alternate decisions -- to plead guilty or instead to proceed to trial -- are products of the same attorney-client interaction and involve the same professional obligations of counsel. Application of the constitutional guarantee of effective assistance of counsel to the advice given a defendant to plead guilty, necessarily encompasses the counterpart of that advice: to reject a proffered plea bargain and submit the issue of guilt to the trier of fact.



Id. Here, Mr. Almonte-xxxxxxx should be given the opportunity to accept the plea bargain described by the prosecutor at sentencing because he made his decision to go to trial based on misinformation from his attorneys concerning the consequences of that decision.

The record is clear that Mr. Almonte-xxxxxxx was not informed until after trial that the government had filed a notice of prior conviction that would enhance his exposure to a minimum of 20 years if he went to trial. He testified under oath that he was first told of the enhancement papers in the cellblock on the original sentencing date (2/10 Tr. 20-21, 27) and that his lawyers "never told me twenty years" (2/10 Tr. 23). Mr. Elsten acknowledged that he had had no knowledge of the enhancement notice before trial, had not received it from Mr. George, had not checked the court file, and had never before looked at 851 (2/10 Tr. 3, 14-16). Most telling is the contemporaneous record as to what his lawyers told Mr. Almonte-xxxxxxx about his exposure: Both trial counsel were present when Mr. Elsten put on the record that he and Ms. Perlmutter had advised Mr. Almonte-xxxxxxx that the "probable import of the Federal Sentencing Guidelines" was that he was facing "a minimum sentence of at least eighteen years" (10/18 Tr. 32). (16) No one suggested at that time that he was facing a statutory minimum of 20 years.

Counsel's lapse in this regard clearly satisfies the first Strickland prong. In United States v. Thompson, 27 F.3d 671, 674-75 (D.C. Cir. 1994), trial counsel failed to inform the defendant that career-offender papers had been filed that would enhance his guideline range from 110-137 months to 360 months to life. The district judge ruled that Mr. Thompson's Sixth Amendment right to the effective assistance of counsel had been violated and reduced his offense level by two points to reflect the acceptance of responsibility reduction he could have received if he had known of his true exposure and pleaded guilty. On appeal, the government conceded that Thompson had satisfied the first prong of the Strickland test. 27 F.3d at 675. Likewise here, defense counsel's error in failing to notify their client of the filing of enhancement papers "was not '"within the range of competence demanded of attorneys in criminal cases."'" Streater, 1995 WL 722563 at *4, quoting Hill, 474 U.S. at 56. See also United States v. Day, 969 F.2d 39 (3d Cir. 1992) (failure to advise defendant he would be classified as career offender if convicted at trial satisfies first Strickland prong); Alvernaz v. Ratelle, 831 F. Supp. 790, 792 (S.D. Cal. 1993) ("no doubt" that error in understating sentence consequences of

proceeding to trial "constitutes a violation under the first Strickland prong"). (17)

This Court can also find the prejudice requirement satisfied. In order to demonstrate prejudice under the second Strickland prong a defendant

need not prove with absolute certainty that he would have pleaded guilty, that the district court would have approved the plea arrangement, and that he therefore would have received a lesser sentence. Strickland v. Washington does not require certainty or even a preponderance of the evidence that the outcome would have been different with effective assistance of counsel; it requires only "reasonable probability" that that is the case.

Day, 969 F.2d at 45 n.8. A "reasonable probability" is simply "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Here, this Court cannot be confident that Mr. Almonte-xxxxxxx would have made the same choice had he known he was exposed to a 20-year mandatory minimum sentence. The record reveals that the prosecutor "plead[ed]" with defense counsel and "suggested in the strongest possible terms that a plea be entered in this case" (2/10 Tr. 11). The record further shows that the prosecutor was willing to withdraw the enhancement papers and was willing to agree to at "at least" a 2-point -- and possibly a 3-point -- reduction for acceptance of responsibility (2/10 Tr. 11, 25). If Mr. Almonte-xxxxxxx had pleaded guilty under those terms, his guideline range would have been either 121-151 months (Offense Level 31) or 135-168 months (Offense Level 32).

This Court can conclude that there is a reasonable probability that a 30-year old married father of a 5-year-old son (PSR at pp. 2, 7), who was observed by the police carrying a bag containing $150,000 worth of cocaine, crack and heroin, and who had no witnesses to contradict the officers' version of events, would have accepted a plea bargain under which, with good time credits, he might be released in as little as 8.5 to 9.5 years, if he had understood the alternative to be a mandatory minimum sentence of 20 years, under which he would have to serve at least 17 years.

As this Court noted in Thompson, roughly 70% of all drug defendants plead guilty. 27 F.3d at 676. The Thompson Court found this statistic irrelevant because the issue in Thompson was whether the defendant could have negotiated a plea that would have resulted in any reduction other than the acceptance of responsibility the trial court had already given him, and there was no evidence to indicate that the government would have agreed to one of the plea bargains hypothesized by Thompson on appeal. Here, by contrast, the 70% statistic is relevant because we know that the prosecutor "plead[ed]" with defense counsel to enter a guilty plea and we know the extremely favorable terms he was willing to offer. Given that many drug defendants get less for their guilty plea than the approximately 50% reduction in likely sentence offered here, and that Mr. Almonte-xxxxxxx had no affirmative defense to the charges, there is more than a "reasonable probability" that Mr. Almonte-xxxxxxx would have been among the 70% of drug defendants who plead guilty if he had known the true value of the deal being offered.

The government argued below that the fact that Mr. Almonte-xxxxxxx put the government to its proof at trial and refused to discuss the facts of the case with the probation officer demonstrates that he would not have accepted the plea offer even if he had understood it (A. 49-51). But this Court rejected that logic in Thompson: "[T]he choices that Thompson actually made do not necessarily shed any useful light on the choices that he would have made if he had been properly advised." 27 F.3d at 677 (emphasis in original). Although Mr. Almonte-xxxxxxx did decide to take his chances at trial, "the chance [he] was told he was taking was not the same chance he took." Alvernaz v. Ratelle, 831 F. Supp. at 794. This is not a case in which the defendant would not even consider pleading guilty. Rather, the record shows that Mr. Almonte-xxxxxxx did discuss with Ms. Perlmutter the possibility of entering a plea (2/10 Tr. 22-24). The fact that he decided against pleading guilty when all he thought he had to gain was an acceptance of responsibility reduction says nothing about what he would have done if he had known that proceeding to trial exposed him to a statutory minimum far in excess of the guideline range he had in mind. (18) It is reasonably probable that Mr. Almonte-xxxxxxx would have made a different decision if he had realized that he was being offered a deal which could cut a mandatory 20-year sentence approximately in half.

C. Mr. Almonte-xxxxxxx Could Have Established Standing And Prevailed On His Suppression Motion If His Counsel Had Not Affirmatively Disclaimed A Reasonable Expectation Of Privacy In The Bag He Was Seen Carrying.

Defense counsel were also ineffective in failing to assert a privacy interest in the black bag. This Court recently found a defense attorney ineffective in misadvising his client that he could not assert inconsistent positions in a motion to suppress and at trial with respect to his awareness of drugs in his car. United States v. Streater, 1995 WL 722563 (D.C. Cir. Dec. 8, 1995). Similarly here, counsel was apparently under the misimpression that assertion of an interest in the bag in connection with the motion to suppress would somehow prejudice Mr. Almonte-xxxxxxx on the merits of the case. (19) That understanding is legally incorrect. Unless a defendant actually testifies inconsistently at the suppression hearing and at trial, the jury will never learn that defense counsel (or even the defendant himself) asserted an interest in the item searched for purposes of the suppression motion. United States v. Salvucci, 448 U.S. 83, 93 (1980); Simmons v. United States, 390 U.S. 377 (1968).

Here, defense counsel had nothing to lose and everything to gain by simply accepting, for purposes of the suppression motion, the police version of events with respect to Mr. Almonte-xxxxxxx's possession of the bag. Mr. Almonte-xxxxxxx's disclaimer of the bag was relevant to the merits of the suppression issue but should not have automatically deprived him of standing given the officers' claim that they saw him carrying it. See W. LaFave, Search and Seizure 11.3(e) at 333 & n.235 (1987) (a disclaimer of ownership made to the police prior to the search is different than "abandonment" and, unlike a disclaimer of ownership at a suppression hearing, should not defeat standing); United States v. Morales, 737 F.2d 761, 763-764 (8th Cir. 1984) (same).

Having established standing through the testimony of the police themselves, defense counsel could have prevailed on the merits by showing that Mr. Almonte-xxxxxxx's alleged abandonment of the bag was merely the invalid fruit of his own illegal detention. See United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990) ("An abandonment may be involuntary, and thus invalid, where it results directly from police misconduct, such as an illegal . . . seizure"); United States v. Brady, 842 F.2d 1313, 1315-16 & n.7 (D.C. Cir. 1989) ("abandonment will not be recognized when it is the result of illegal police conduct" but a spontaneous denial of ownership will establish abandonment if it is "unaffected by police provocation") (dicta); United States v. Thomas, 864 F.2d 843, 846 n.4 (D.C. Cir. 1989) (because abandonment preceded police seizure of defendant, Court did not confront "the more difficult issue of police conduct that itself improperly causes abandonment").

Here, there is a "reasonable probability" that Mr. Almonte-xxxxxxx could have established that he was illegally seized before he "abandoned" the bag and that the alleged "abandonment" was in fact the product of that illegal seizure. Surrounded by four police officers to his sides, (20) the wall with the phones to his back (10/14 Tr. 58, 111-112) and chairs to the front of him, this Spanish-speaking defendant would not have felt free to leave even if he was not literally physically blocked in. (21) This seizure of Mr. Almonte-xxxxxxx's person -- which was not supported by any reasonable suspicion of wrongdoing -- improperly induced the alleged abandonment. According to the suppression motion, Mr. Almonte-xxxxxxx's disclaimer of the bag came after Officer Pena shouted at him that the bag was his (A. 15). Detective Jones acknowledged that the "real purpose" of the interview was "to look in his bag" and search him for contraband (10/14 Tr. 109). See United States v. Ward, 961 F.2d 1526, 1535 (10th Cir. 1992) (statements disclaiming ownership of suitcases not voluntary where there were no intervening circumstances to dissipate taint from prior illegal seizure of defendant's person).

By inexplicably disclaiming any interest in the bag for purposes of the suppression motion, defense counsel guaranteed that the validity of the "abandonment" would never be reached because the motion would be denied for lack of standing. At a minimum, Mr. Almonte-xxxxxxx should be granted a suppression hearing at which to prove that his alleged abandonment of the bag was the fruit of his own illegal detention.



D. Appellant's Trial Lawyers Were Negligent In Failing To Object To Prejudicial Instructions And Statements By The Court.



As discussed in Parts IV and V, infra, Mr. Almonte-xxxxxxx was prejudiced by the joint possession instruction and the court's statements suggesting that he would "prove" his innocence. The court below found that defense counsel had been "negligent" in failing to object to the joint possession language when it was given in the initial charge (10/18 Tr. 106). Likewise, trial counsel were ineffective in failing to object to the court's burden-shifting remarks. To the extent Mr. Almonte-xxxxxxx is precluded from obtaining relief because of these lapses, he has satisfied the prejudice prong of Strickland and is entitled to a new trial.

III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL AFTER THE PROSECUTOR ELICITED IMPROPER HEARSAY TESTIMONY THAT APPELLANT AND THE UNIDENTIFIED MAN WERE TRAVELING TOGETHER.

A. Standard of Review

Defense counsel preserved this issue by objecting to Fleming's hearsay testimony that the unidentified man said he was traveling with Mr. Almonte-xxxxxxx and by moving for a mistrial (10/17 Tr. 68-75). "'The decision whether to grant a mistrial generally rests within the sound discretion of the trial court, and the single most important factor in making that determination is the extent to which the defendant has been prejudiced.'" United States v. Eccleston, 961 F.2d 955, 959 (D.C. Cir. 1992), quoting United States v. Tarantino, 846 F.2d 1384, 1413 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988).

B. The Court's Attempted Curative Instruction Was Inadequate Where The Improper Hearsay Testimony Went To The Heart Of Mr. Almonte-xxxxxxx's Defense.

In Eccleston, this Court granted a new trial where the trial court had ordered the jury to disregard improper hearsay testimony but refused to grant a mistrial. The Eccleston Court applied the "substantial impact" test used by the Fifth, Ninth and Eleventh Circuits, under which "'reversible error exists if the [inadmissible] evidence, when viewed in the context of the whole trial, is so highly prejudicial that it would have had a substantial impact on the jurors' verdict.'" 961 F.2d at 959, quoting United States v. Alfaro, 935 F.2d 64, 68 (5th Cir. 1991) (citation omitted).

As in Eccleston, the "jury instruction [to disregard Fleming's hearsay testimony] was insufficient to counterbalance the highly prejudicial content of the inadmissible testimony." 961 F.2d at 962. Defense counsel's entire trial strategy was to create a reasonable doubt as to whether Mr. Almonte-xxxxxxx or the unidentified man sitting near the tote bag had possessed the drugs at issue. Defense counsel repeatedly attacked the police officers for failing to obtain the name of the other man, record his physical description, or investigate him in any way. Fleming's bombshell testimony that the supposed "mystery man" had stated that he and appellant were traveling together was devastating to Mr. Almonte-xxxxxxx's defense, particularly in light of the improper joint possession instruction discussed in Point IV, infra.

This Court does not presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it (22) where there is there is "'a strong likelihood that the effect of the evidence would be "devastating" to the defendant.'" Eccleston, 961 F.2d at 961, quoting Greer v. Miller, 483 U.S. 756 (1987) (citations omitted). Here, as in Eccleston, the improper hearsay evidence would have had a "substantial impact" on the jury's verdict notwithstanding the court's instruction. "[T]he jury could not reasonably be expected to ignore [Fleming's] extremely incriminating but concededly inadmissible statement in assessing [the defendant's] guilt." 961 F.2d at 962.

IV. THE TRIAL COURT ERRED IN REINSTRUCTING THE JURY OVER OBJECTION ON A THEORY OF JOINT POSSESSION.

A. Standard of Review

Defense counsel preserved this issue by objecting to reinstruction on joint possession (10/18 Tr. 101-108). "[T]he decision whether and how to reinstruct a jury is within the discretion of the trial court." United States v. Bolden, 514 F.2d 1301, 1308 (D.C. Cir. 1975). "The standard for determining when an error in a jury instruction requires reversal is the general standard for determining harmless error after objection by the defense. . . . Under that standard, '[i]t is our responsibility . . . to reverse appellant's conviction unless we can say "with fair assurance after pondering all that happened without stripping the erroneous actions from the whole, that the judgment was not substantially swayed by the error."'" United States v. Lemire, 720 F.2d 1327, 1339 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984).

B. The Court Erred In Refusing To Entertain Defense Counsel's Objection On The Ground That Counsel Had Not Objected To The Joint Possession Instruction When First Given.

It is well settled that "an instruction should not be given if it lacks evidentiary support or is based upon mere speculation." United States v. Waskow, 519 F.2d 1345, 1347 (8th Cir. 1975). Here, the joint possession instruction served only to encourage speculation that perhaps appellant and the second unidentified man were jointly transporting the bag from New York. The government did not attempt to prove and could not have proved joint possession. The original criminal complaint contained Detective Jones's sworn statement, "No one other than the defendant had possession of the above tote bag" (A. 11). The government's witnesses testified that the second man was "not a suspect" (10/17 Tr. 148) and "didn't have the bag in his possession" (10/17 Tr. 101). Had the government attempted to prosecute the second man on a theory of joint possession, no court would have submitted the case to the jury. See 10/18 Tr. 97 ("Mere presence near something or mere knowledge of its location is not enough to show possession"). There was no more evidence of joint possession as to Mr. Almonte-xxxxxxx than there was to the second man. The trial judge recognized this when he told defense counsel that "you have been negligent" in not objecting sooner to the joint possession language (10/18 Tr. 106).

The trial court erred, however, in thinking it was bound by the original (unobjected to) formulation of the possession instruction already given and could not correct the error once defense counsel did object to it. "The court's power to reinstruct includes within it the power to reformulate or supplement the instruction." United States v. Sanders, 962 F.2d 660, 677 (7th Cir.), cert. denied, 113 S. Ct. 284 (1992). See also Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) ("When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy"). Here, the jury quickly focused on the possession instruction and asked for further guidance. The court abused its discretion in repeating over objection an instruction that had no application to the evidence properly before the jury, but merely served to resurrect the inadmissible hearsay testimony that the second man had stated he was "traveling with" appellant. See United States v. Kolp, 2 F.2d 953 (6th Cir. 1924) (reversing where government did not press aiding and abetting theory, yet when the jury asked about the court's aiding and abetting instruction, "the court, instead of remedying the original error by telling them that 'aiding and abetting' was not in the case as charged," gave further instructions on that theory). Cf. United States v. Lang, 644 F.2d 1232, 1239 (7th Cir.) (no error in responding to jury inquiry by rereading original instructions "where the [defendant] do[es] not question the correctness of the original instructions"), cert. denied, 454 U.S. 870 (1981); Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961) (court erred when jury sought reinstruction on criminal statute and court failed to give additional defense instruction even though it had not been requested in connection with initial charge).

V. THE TRIAL COURT MADE STATEMENTS THAT IMPROPERLY IMPOSED A BURDEN OF PROOF ON MR. ALMONTE-xxxxxxx AND NEGATED THE PRESUMPTION OF INNOCENCE.



A. Standard of Review



A trial court's instructions violate the Due Process Clause of the Sixth Amendment if there is a "reasonable likelihood" that the jury understood the instructions to require the defendant to share the burden of persuasion. Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994). Where, as here, defense counsel has not objected, this Court has reviewed defective jury instructions for plain error under Fed. R. Crim. P. 52(b). United States v. Merlos (Merlos II), 8 F.3d 49 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1635 (1994).

B. There Is A Reasonable Likelihood That The Instructions As A Whole Led The Jury To Expect Mr. Almonte-xxxxxxx To Prove His Innocence.

In a criminal prosecution, the government alone shoulders the burden of proof; the defendant, presumed to be innocent of crime, need prove nothing. Speiser v. Randall, 357 U.S. 513, 525-526 (1958) (cited in In re Winship, 397 U.S. 357, 364 (1970)). Proper instructions on the burden of proof are a fundamental aspect of a fair trial. Here, looking at the instructions as a whole, there is a "reasonable likelihood" that Mr. Almonte-xxxxxxx's jurors misunderstood the government's unilateral burden of proof.

Although the district court did ask the jurors during voir dire whether they had any reservations about the presumption of innocence, the fact that the defendant does not have to testify or produce witnesses, or the government's burden to prove guilt beyond a reasonable doubt (10/13 p.m. 59-60), the court's other comments at the beginning of the trial set up an expectation that Mr. Almonte-xxxxxxx "intended to prove" his innocence. The judge misled the jury not only by cautioning defense counsel to "restrict your [opening] remarks to what you intend to prove" (10/14 Tr. 13), but also by asking the jurors in voir dire whether they would believe a police officer over "somebody else [who] testified in contradiction" (10/13 p.m. Tr. 16) and by cautioning the jurors immediately after their impanelment not to discuss the case "until you have heard all the evidence on both sides of the case" (10/13 p.m. Tr. 69).

By leading the jury to expect that the defense "intend[ed] to prove" innocence, the court negated the presumption of innocence. Moreover, the issue of the credibility of police officers was presented in a way that suggested that the police testimony should be weighed against contradictory testimony -- suggesting, inaccurately, that there would be such contradictory testimony. When Mr. Almonte-xxxxxxx presented no defense witnesses, the jury was left to conclude that the police testimony must be credited. These instructions created a reasonable likelihood that the jurors failed to understand that even if the defense did no more than create a doubt in their minds through cross-examination, acquittal was required. See United States v. Alston, 551 F.2d 315, 319 (D.C. Cir. 1976) (jurors likely did not "fully appreciate that appellant's alibi evidence need only raise a reasonable doubt in their minds" where they were instructed to analyze testimony from defense witnesses "in contradistinction to the testimony presented by the Government").

The fact that the trial court did give other correct instructions on the burden of proof and presumption of innocence cannot cure the burden-shifting statements made at the beginning of the case. The existence of an accurate statement of the burden of proof does not render the instructions adequate as a whole if it is reasonably likely that the jury relied on the faulty instruction during its deliberations. United States v. Merlos (Merlos I), 984 F.2d 1239, 1242 (D.C. Cir. 1993) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991); Boyde v. California, 494 U.S. 370, 380 (1990)). See also United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994) ("Where two instructions conflict, the reviewing court cannot presume that the jury followed the correct one"), cert. denied, 115 S. Ct. 1170 (1995); 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"); Alston, 551 F.2d at 319 ("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 the incomplete . . . presumption of innocence charge[] [and other misleading instructions] was thus dissipated.").

The errors in the court's remarks were "plain" in the sense of being obvious: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Taylor v. Kentucky, 436 U.S. 478, 483 (1978) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Nor can there be any doubt that an instruction which plants in the jurors' minds an expectation that the defendant will prove his innocence "affect[s] substantial rights." Fed. R. Crim. P. 52(b). See Alston, 551 F.2d at 321 ("[a]n instruction central to the determination of guilt or innocence may be fatally tainted by even a minor variation which tends to create ambiguity"). Cf. Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 (1993) (improper reasonable doubt instruction presumptively affects substantial rights).



CONCLUSION

For the foregoing reasons, this Court must reverse the judgment below and remand to the district court for a new trial. Absent that relief, the case should be remanded for a suppression hearing. Absent that relief, this Court should hold that Mr. Almonte-xxxxxxx's decision to go to trial was tainted by ineffective assistance of counsel, vacate his conviction, and remand in order to permit him to accept the plea offer described by the prosecutor at sentencing. In the alternative, the Court should remand for a hearing on Mr. Almonte-xxxxxxx's ineffective assistance of counsel claims. At a minimum, the case must be remanded for resentencing within the guideline range.







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 Jose Almonte-xxxxxxx







CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Jose Almonte-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 Anthony Cabrerra have been served by mail on Assistant United States Attorney John R. Fisher, Room 10-435, 555 Fourth Street, N.W., Washington, D.C., 20001, this 5th day of January, 1996.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

1. "A." refers to pages of the Appendix filed with this brief. References to transcripts are cited by their date and page number. For example, "10/14 Tr. 67" refers to page 67 of trial proceedings on October 14, 1994.

2. When the chemist's analysis revealed that the amount of mixture at issue in fact weighed less than the 500 grams charged, Count Two was modified to charge possession with intent to distribute a detectable amount cocaine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C) (10/13 a.m. Tr. 28-31).

3. Detective Curtis Jones was impeached with his grand jury testimony in which he stated three times that the bag was blue (10/14 Tr. 105-106).

4. The officers described the other man as approximately 5'8", of average build, light- or medium-complected, with black hair, and in his late teens or 20's (10/14 Tr. 37-38, 46, 53, 90-91, 95-96, 10/17 Tr. 25-26, 85-86, 134).

5. All of the witnesses except Detective McNamara testified that the second man sat in the first chair from the telephones (10/14 Tr. 25-26, 87-88; 10/17 Tr. 62, 78, 112-113, 132). Detective McNamara testified that Mr. Almonte-xxxxxxx placed the bag near the first chair but that the other man sat in the second chair from the telephones (10/17 Tr. 12-13, 19-20, 27-28).

6. No such piece of paper was introduced in evidence.

7. At some point during Pena's conversation with appellant, the phone rang but no one answered it (10/14 Tr. 88).

8. Detective McNamara's testimony contradicted that of the other officers with respect to Detective Fleming's whereabouts. McNamara testified that from the time he saw Mr. Almonte-xxxxxxx approach the telephone in the waiting area until the time he saw him placed under arrest, he was acting as backup for Detective Fleming, who was conducting an unrelated interview in the lobby outside the waiting area and who did not enter the waiting area to speak to the second man (10/17 Tr. 12-14, 29).

9. The court denied a hearsay objection to that testimony (10/17 Tr. 76-77).

10. When asked if he had anything to add, the prosecutor said only (10/18 Tr. 34): "Only that I have advised counsel . . . that Mr. xxxxxxx does have a previous conviction, recent conviction in New York for a similar offense of distribution of controlled substances and I am sure counsel discussed the possible ramifications of being impeached if he were to testify." The prosecutor never suggested that he had intended the Information as to Prior Drug Conviction to subject Mr. Almonte-xxxxxxx to a 20-year minimum sentence.

11. The bottom of the guideline range was 14 years.

12. With a 3-point adjustment, the guideline range would have been 121-151 months. With a 2-point adjustment, the guideline range would have been 135-168 months.

13. Section 851 was enacted to fulfill the due process requirement of reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism. United States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992).

14. It is far from clear that, despite the certificate of service, the notice was ever received by Mr. George, given Mr. Almonte-xxxxxxx's testimony that Mr. George never told him about it and Mr. Elsten's representation that Mr. George never provided him with it.

15. The Fifth Circuit's decision in United States v. Garcia, 954 F.2d 273 (5th Cir. 1992), does not call for a contrary result. In that case, the Information miscited 21 U.S.C. 962, rather than 851, as authority for a potential enhancement. The court found the error harmless applying Fed. R. Crim. P. 7(c)(3), which states: "Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice." First, Rule 7(c)(3) places no limitation on this Court's authority to vacate an improper sentence enhancement. By its own terms, Rule 7(c)(3) merely limits a court's authority to dismiss an indictment or information or reverse a conviction. The statute that applies to errors in sentencing enhancement notices is 851(a)(1) and that statute provides that a defendant must have proper notice of the enhancement "before trial" and that even "clerical mistakes" must be corrected "prior to the pronouncement of sentence." Second, even if Rule 7(c)(3) applies to Mr. Almonte-xxxxxxx's claim, the citation error here was not harmless. In Garcia, the substance of the notice was accurate in that the statute cited did notify the defendant of a potential doubling of his maximum prison sentence. The court held that Mr. Garcia was "not misled in any way" because, prior to entry of his guilty plea, he acknowledged his understanding that "because of the prior convictions, the maximum sentence for the instant drug offense was subject to doubling under the statute." 954 F.2d at 276. Here, by contrast, Mr. Almonte-xxxxxxx was misled to his prejudice not only by the substance of the statute cited in the Information, which provides for only a 10-year mandatory minimum, but also during trial, when his attorney stated in open court, without contradiction from the prosecutor or the court, that he could receive a sentence of less than 20 years if convicted.

16. The reference to a "minimum" sentence of 18 years was apparently a slip of the tongue; 17.5 years is the high end -- not the low end -- of Mr. Almonte-xxxxxxx's guideline range.

17. This Court in Loughery looked to the ABA Standards to inform its determination of what is "reasonable" professional conduct. 908 F.2d at 1018. The same standards violated in Loughery were violated here. Id., quoting ABA Standards, 4-3.8, 4-5.1(a). As in Loughery, there can be no suggestion here that trial counsel's actions were the result of professional "strategy." The error here "arises from counsel's lack of diligence rather than the exercise of judgment." Loughery, 908 F.2d at 1018.

18. Mr. Almonte-xxxxxxx testified that he was told that he was confronting 14 years if he pleaded guilty and 14 years "or a little bit more" if he were convicted at trial (2/10 Tr. 22-24). Such advice would have been essentially correct in the absence of the enhancement papers: Fourteen years would have been the high end of the guideline range if he had pleaded guilty (assuming only a 2-point reduction for acceptance of responsibility) and was the low end of his guideline range when he was convicted at trial. What Mr. Almonte-xxxxxxx did not know, of course, is that the statutory enhancement would render the guideline range irrelevant if he proceeded to trial.

19. This is the only explanation for the action of original counsel in filing a suppression motion that appears to disclaim an interest in the bag (A. 15) and the action of subsequent counsel in pressing the motion while expressly declining to assert an interest in the bag (10/13 a.m. Tr. 32-36). This is not a case such as United States v. Brown, 663 F.2d 229 (D.C. Cir. 1981) (en banc), in which defense counsel concluded that the filing of a motion to suppress would be futile where the facts indicated that the defendant abandoned the bag at issue. Here, defense counsel recognized that the police had illegally seized Mr. Almonte-xxxxxxx and that suppression of the drugs was a proper remedy for that violation, but did not realize that they were precluding that remedy by disclaiming any interest in the bag.

20. Detective Jones described the arrangement as follows: "[G]oing . . . clockwise it would have been Fleming, the person in the chair, Oxendine, myself, xxxxxxx and then . . . Pena" (10/14 Tr. 116). Detective Fleming testified he was only "a couple of feet" from Jones (10/17 Tr. 87-88). Detectives Jones and Pena were only 1-2 feet away from Mr. Almonte-xxxxxxx (10/14 Tr. 58).

21. Detective Jones claimed that Mr. Almonte-xxxxxxx could have walked away by walking forward (10/14 Tr. 112). However, the diagram of the waiting area introduced by the government reveals that two rows of chairs are situated back-to-back perpendicular to the wall on which the phone booth is located (Gov't Ex. 2). Given that the first chairs in these rows (one of which the second man was allegedly sitting in) were only 3-4 feet from the phone booths, it would have been impossible for Mr. Almonte-xxxxxxx to leave without stepping to one side or the other.

22. Here, it does not appear that the elicitation of the hearsay testimony was "inadvertent." Several of the officers acknowledged that they discussed their expected testimony with the prosecutor in advance of trial and the government requested and received an instruction on the propriety of such preparations (A. 37, 10/18 Tr. 53). The prosecutor initially attempted to defend the testimony as non-hearsay (10/17 Tr. 70) and never disputed defense counsel's suggestion that Fleming was "primed to give that answer" (10/17 Tr. 71).