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UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

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Docket No. xxxxxxxx

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UNITED STATES OF AMERICA,

Appellee,

-against-

xxxxxxxxxxxxxxxxx,

Defendant-Appellant.

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APPEAL FROM A FINAL JUDGMENT

OF THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

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BRIEF FOR APPELLANT xxxxxxxxxxxx

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JURISDICTIONAL STATEMENT

PURSUANT TO FED. R. APP. P. 28(a)(2)

Carmen xxxxxxx appeals from a final judgment entered in the United States District Court for the Eastern District of New York (Nickerson, J.) on April 24, 1997. This Court has jurisdiction pursuant to 28 U.S.C. ง 1291. The district court had jurisdiction pursuant to 18 U.S.C. ง 3231. Timely notice of appeal was filed on April 24, 1997.

QUESTION PRESENTED

Whether the district court abused its discretion by telling the deliberating jury there was "no evidence" the defendant had declared certain items on her Customs form, a fact that was not in evidence and that the defense then had no opportunity to confront or explain.

STATEMENT OF THE CASE

Carmen xxxxxxx appeals her conviction, after a jury trial before the Honorable Eugene H. Nickerson, of one count of knowingly and intentionally importing into the United States a Schedule II controlled substance, in violation of 21 U.S.C.

งง 952(a), 960(a)(1) and 960(b)(2)(B)(ii) and 18 U.S.C. งง 2 and 3551, and one count of knowingly and intentionally possessing with intent to distribute a controlled substance, in violation of 21 U.S.C. งง 841(a)(1) and 841(b)(1)(B)(2)(II) and 18 U.S.C. งง 2 and 3551. The district court sentenced her to 63 months of imprisonment, five years of supervised release, and a special assessment of $200. This Court continued The Legal Aid Society, Federal Defender Division, Appeals Bureau, as counsel to Ms. xxxxxxx under the Criminal Justice Act.

STATEMENT OF FACTS

Introduction

On July 23, 1996, at approximately 8:30 p.m., Carmen xxxxxxx arrived at John F. Kennedy Airport ("JFK") from Guyana. A. 34, 69.⁽¹⁾ Customs inspectors searched her luggage and found six cricket bats inside a duffel bag. A. 34. Physical and x-ray examination of the bats revealed that they contained a total of approximately four kilograms of cocaine. A. 36-38, 43. Ms. xxxxxxx's entire defense at trial was that she had purchased the bats in Guyana but had no idea that they contained cocaine. The sole question before the jury was whether this defense was credible.

The deliberating jury asked the court, inter alia, whether Ms. xxxxxxx had declared the value of the bats to United States Customs officials. A. 278-79. The court responded, "[T]here is no evidence of that." A. 285. In fact, the record contained no evidence on the issue one way or the other. The question presented on appeal is whether the district court's response to the jury's inquiry was an abuse of discretion.

Ms. xxxxxxx's Explanation for Her Possession of the Cricket Bats

Although Ms. xxxxxxx did not testify at trial, she explained to JFK officials at the time of her arrest why she possessed the cricket bats. Her explanation was conveyed to the jury through two Government witnesses, Customs Inspector Anthony Orosz and Special Agent Dennis P. McCarthy.

Ms. xxxxxxx, a United States citizen, told the officials that she was a nurse who had travelled to Guyana to bury her mother. A. 93-94, 98. She explained that she played cricket and had been recruited by a man named Mike to help him organize a girls cricket league in Brooklyn. A. 94. She said that the league was located on Snyder Avenue in Brooklyn, somewhere near Utica Avenue. A. 96. While in Guyana, before her return, she decided to purchase six cricket bats from a store in Georgetown, bring them back to the United States, and donate them to the league. A. 93-94.⁽²⁾ No one had specifically asked her to purchase the bats. A. 94. Ms. xxxxxxx added that she had negotiated the purchase with a salesman in the store. A. 94-95. The salesman told her that he would not sell her the bats he had on display, but requested her to return to the store the next day to pick up the six bats, which she did. A. 95. She did not know the name or location of the store. A. 95. She said she bought the bats in Guyana because they are cheaper there than in the United States. A. 95.

Defense counsel, Cynthia Matthews, attempted to demonstrate that this explanation was credible and that Ms. xxxxxxx had not known about the cocaine hidden inside the cricket bats. It was undisputed that even trained law enforcement officials could not detect the cocaine inside the bats with the naked eye. A. 52-53. There were no visible signs that the bats had been hollowed out or tampered with. A. 52-53. Thus, Ms. Matthews argued, her client had no reason to suspect that the bats contained contraband. A. 229-32.

Another defense theme focused on Ms. xxxxxxx's demeanor throughout her interrogation at the airport. It was undisputed that she was calm, cooperative, and gave consistent answers to the officials' questions. A. 35, 38, 51, 93, 122. In the words of one official, she was "calm" and "eager to talk." A. 93. It was also undisputed that the bats were not hidden, but were completely visible to anyone looking inside the duffel bag. A. 50-51. Ms. xxxxxxx never denied owning the luggage or the bats. Although Agent McCarthy told Ms. xxxxxxx that he thought her story was "ridiculous," Ms. xxxxxxx insisted that she was telling the truth. A. 96-97. Indeed, she invited the officials to accompany her to Brooklyn so they could verify her story, an offer they declined. A. 101.

Ms. xxxxxxx's son, Ewart North, testified on her behalf. He confirmed that Ms. xxxxxxx was a nurse who played cricket as a teenager in Guyana, and who still attended cricket games in Brooklyn as a spectator. A. 186, 187, 188. Mr. North testified that cricket was played in Prospect Park and behind Tilden High School, one block from Snyder Avenue. A. 188. He added that, since the early 1990's, his mother frequented cricket matches at these locales with a male companion. A. 188.

The defense also called Carol Francis, who met Ms. xxxxxxx once in 1993 or 1994 on a cricket field in Brooklyn. A. 195. She testified that Ms. xxxxxxx had been watching a cricket game in the company of a "tall, skinny guy." A. 195. Ms. Francis attended cricket games regularly and said that, after her male friends finished playing cricket, a group of their Guyanese girlfriends would play the game as well. A. 196. She owned a cricket bat that she had purchased in Guyana. A. 196. She added that she had once brought four cricket bats back from Guyana for her friends. A. 196-97.

The defense also called Amanda Touchton, a paralegal with the Legal Aid Society. A. 202. She testified that she had contacted all of the major sporting goods stores in New York City, but had not been able to find one that sold cricket bats. A. 203. Ms. Touchton also testified that the West Indian American Cricket Club had received a permit to play behind Tilden High School in Brooklyn. A. 204.

The Government's Attack on Ms. xxxxxxx's Credibility

The Government attempted in several ways to undermine Ms. xxxxxxx's credibility. First, the Government tried to show that her explanation for her possession of the cricket bats was implausible. The Government pointed out that Ms. xxxxxxx was unable to tell the JFK officials where cricket bats were sold in New York or how much they cost here. A. 95. She was also unable to provide an exact location for the cricket league with which she was involved. A. 96.

Second, the Government argued that Ms. xxxxxxx's calm demeanor on the evening of her arrest was inconsistent with innocence. The Government contended an innocent person who had been found with cocaine in her luggage would not have reacted calmly, but would have reacted with "utter disbelief." A. 215.

Third, the Government argued that it did not make sense that someone in Guyana would have sold Ms. xxxxxxx bats filled with at least $84,000 worth of cocaine without informing her of the contents and insuring that she would deliver the contraband to a specific location. A. 217-18.

Fourth, the Government called an expert witness to testify about cricket bats. The witness testified that the bats purchased by Ms. xxxxxxx were too large to be used by women. A. 159. He also testified that the bats were all the same size. A. 162-63. The Government argued that an experienced cricket player like Ms. xxxxxxx who really planned on donating bats to a league would not buy bats that were all the same size, but would buy assorted sizes to accommodate the various players. A. 163-64. The expert also testified that he was not aware of a female cricket league in North America. A. 164. Finally, the expert testified that, contrary to Ms. xxxxxxx's understanding, cricket bats were cheaper in the United States than in Guyana. A. 160.

The Jury's Questions and the District Court's Responses

The jury commenced its deliberations at 3:10 p.m. on November 5, 1996. A. 278. By 4:30 p.m., the jury had sent the court two notes containing a total of four questions. A. 278, 280. First, the jury asked how many people play on a cricket team. A. 278. Second, the jury inquired whether Ms. xxxxxxx was a registered nurse. A. 278. Third, the jury asked, "Did Miss xxxxxxx 'declare' the value of the cricket bats when coming through Customs?" A. 278-79. Finally, the jury asked, "Did the testimony show that the agent's written report did not support the agent's statement that the defendant said one of her reasons for buying the bats was to obtain free tickets?" A. 280.

The court, after discussing these questions with the parties, announced that it would tell the jury that "there's no evidence in the record of how many people are on a cricket team and that they will have to look at the declaration to determine what Miss xxxxxxx declared." A. 284. The Government immediately pointed out, however, that Ms. xxxxxxx's declaration form was not in evidence. A. 284. The court responded by stating, "I'll have to say there is no evidence." A. 284. The court then answered the jury's questions as follows:

"The jury wishes to know: One. How may people on a cricket team?"

There is no evidence in the record from which I can answer that question for you.

Two. Is Ms. xxxxxxx a registered nurse? We have not seen the transcript of the testimony of Agent McCarthy today so we can't answer that question for you. You'll have to wait until tomorrow morning when we get the transcript.

Three. Did Ms. xxxxxxx declare the value of the cricket bats when coming through Customs? The answer is there is no evidence of that.

A. 285 (emphasis added). The court also read to the jury a portion of the transcript relating to the jury's fourth question regarding whether Ms. xxxxxxx had said that she bought the bats to obtain free tickets to a cricket game. A. 286-87.

Defense counsel, outside of the jury's presence, objected to the court's answer to Question Three. "I just believe that the way you said it leads to the inference that, no, there's no evidence that she declared that on her Customs form. What I prefer you to tell the jury is that --". A. 287. The court cut off defense counsel at that point, stating, "I said there is no evidence. I'm not going to tell them that." A. 287.

A few moments later, defense counsel reiterated her objection, provoking the following colloquy:

THE COURT: Let me see the note. The note says: Did Miss xxxxxxx declare the value of the cricket bats when coming through Customs? I said there was no evidence.

MS. MATTHEWS: I'll reread the transcript. I thought you said there was no evidence -- I thought it came out sounding [like] there was no evidence of that, which would lead them to believe there was no evidence that she had declared anything.

THE COURT: I don't believe that's what I said.

MS. MATTHEWS: I will read the transcript.

THE COURT: Read what I said.

(Record read.)

MS. MATTHEWS: I think it can be interpreted there is no evidence of that.

THE COURT: I don't agree with you.

A. 288-89. At that point, the court recessed for the day.

The next morning, Ms. Matthews submitted a letter to the court reiterating her objection. A. 303-04. In the letter, she asked the court to answer Question Three just as it had answered Question One, i.e., by stating that there was no evidence in the record from which to answer the jury's question. A. 303. The court, however, refused. A. 292. Ms. Matthews persisted:

I'm not trying to get an implication in that she declared them.

THE COURT: That is the implication. You come up to the sidebar, after I have given that, and you want me to change it, which will leave the implication to the jury that she declared them.

MS. MATTHEWS: The way you've said it, the implication is that there is no evidence that she declared the value.

THE COURT: I don't agree with you.

MS. MATTHEWS: There is no evidence of that.

THE COURT: There is no evidence she declared the value in the record.

MS. MATTHEWS: But there is no evidence that she did not declare it in the record.

A. 293. These arguments and defense counsel's subsequent motion for a mistrial met with no success. The court refused to clarify its answer to Question Three. A. 293.

At 9:40 a.m., the court answered the jury's remaining question as follows: "'Is Miss xxxxxxx a registered nurse?' There is no testimony on that subject." A. 296. At 9:46 a.m., the jury resumed its deliberations. A. 296. By 10:45 a.m., the jury reached its guilty verdict on both counts. A. 297-98.

SUMMARY OF ARGUMENT

This Court should vacate Ms. xxxxxxx's conviction because the district court improperly suggested to the jury that Ms. xxxxxxx had not declared the value of the cricket bats as she passed through Customs. The court, without any valid justification, refused to make clear to the jury that there was no evidence in the record, one way or the other, on the issue. Instead, the court answered the jury's question -- "Did Ms. xxxxxxx declare the value of the cricket bats when coming through Customs?" -- by saying that "there was no evidence of that." A. 285. In the context of the court's answers to the jury's other questions, this answer could easily have been interpreted to mean that Ms. xxxxxxx had not declared the bats, supporting the inference that she was trying to avoid detection. Thus, the court conveyed to the jury highly prejudicial information that was not in evidence, in violation of Ms. xxxxxxx's rights under the Sixth Amendment. In light of the central importance of Ms. xxxxxxx's credibility in this case, and the deliberating jury's clear interest in whether she declared the bats, the court's error cannot be deemed harmless.

ARGUMENT

THE DISTRICT COURT ABUSED ITS DISCRETION IN SUGGESTING TO THE JURY THAT MS. xxxxxxx HAD NOT DECLARED THE VALUE OF THE CRICKET BATS TO CUSTOMS OFFICIALS, A MATTER ABOUT WHICH THERE WAS NO EVIDENCE.

A. The Court Improperly Suggested to the Jury That Ms. xxxxxxx Had Not Declared the Value of the Cricket Bats.

The district court's response to the jury's inquiry regarding whether Ms. xxxxxxx had declared the value of the cricket bats to Customs officials was improper and highly prejudicial. The jury may well have understood the court's answer -- that "there is no evidence of that" -- to mean that she had not declared.

This interpretation of the court's answer is supported by the context in which the answer was given. The court's answer to Question Three stood in stark contrast to the court's answers to the jury's other questions. For example, immediately before the court answered Question Three, it responded to the jury's question about how many people play on a cricket team by stating, "There is no evidence in the record from which I can answer that question for you." A. 285. The court easily could have and should have given this same answer to the jury's question regarding Ms. xxxxxxx's declaration of the cricket bats, as defense counsel specifically requested. A. 303. The very different answer, "there is no evidence of that," naturally led the jury to conclude that Ms. xxxxxxx had not declared the bats.

The court's rationale for not clarifying its response -- which could have been readily accomplished -- does not withstand scrutiny. The court expressed concern that a clarification would suggest that Ms. xxxxxxx had, in fact, declared the bats. This concern, however, was baseless. As defense counsel pointed out, a clarification would merely have told the jury the truth -- that the record contained no evidence, one way or the other, on the issue. The court's refusal to clarify its response was therefore an abuse of discretion. As the Supreme Court has noted, "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).

B. By Conveying to the Jury Highly Damaging Information That Was Not in Evidence, the Court Violated the Sixth Amendment.

By suggesting to the jury that Ms. xxxxxxx had not declared the value of the bats, a matter that had not been proven, the court violated Ms. xxxxxxx's constitutional rights under the Sixth Amendment.

The Sixth Amendment, of course, guarantees an accused the right to a jury trial. The Supreme Court, in evaluating the nature and extent of this right, has declared: "[i]n the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the `evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). This Court has recognized that "[t]he corollary of this notion is that facts that relate to a defendant's guilt, but which are not admitted as evidence during trial, should not be exposed to a jury during deliberations. Any other conclusion would permit a jury to consider incriminating evidence that has not been subject to confrontation or cross-examination, in direct contravention of the Sixth Amendment's guarantees." United States v. Simmons, 923 F.2d 934, 943 (2d Cir. 1991), cert. denied, 500 U.S. 919 (1991).⁽³⁾

Here, the district court violated these principles by suggesting to the jury during its deliberations that Ms. xxxxxxx had not declared the cricket bats. This suggestion was not supported by any evidence in the record and had not been subject to any procedural safeguards such as cross-examination. Moreover, defense counsel, having already completed her closing argument, was deprived of any opportunity to offer innocent explanations for Ms. xxxxxxx's asserted failure to declare the bats.

Judge Nickerson may have concluded that no clarification of his answer to the jury's inquiry was necessary because Ms. xxxxxxx's extra-record declaration form did not mention the cricket bats. This conclusion, however, was erroneous. A judge may not convey to a deliberating jury any extra-record information, even if the judge concludes that the information is true. To do so deprives a criminal defendant of her basic right to confront the evidence against her.

In sum, the district court's conduct violated Ms. xxxxxxx's constitutional rights.

C. The Error Was Not Harmless.

Finally, the district court's improper answer to the jury's query cannot be dismissed as harmless error. The Government bears the burden of proving beyond a reasonable doubt that the district court's violation of Ms. xxxxxxx's Sixth Amendment rights did not contribute to the jury's verdict. Chapman v. California, 386 U.S. 18, 24 (1967). The Government cannot meet this heavy burden. The court's improper answer, given at a critical stage of the trial in response to a question that clearly mattered to the jury, may well have led the jury to convict.

As noted earlier, the sole question before the jury was whether Ms. xxxxxxx's explanation for her possession of the cocaine-filled cricket bats was credible. Despite the Government's best efforts to undermine her explanation, the jury had sufficient doubt on the matter to submit four questions to the court. These questions all had a common theme. The jury was interested in whether Ms. xxxxxxx had generally been truthful to Customs officials. Thus, the jury wanted to know if her claim that she was a nurse was truthful. Similarly, they wanted to know if she had tried to conceal the bats from the officials by not declaring them.

The district court's suggestion that Ms. xxxxxxx had not declared the bats was therefore devastating. One of the central themes of the defense, after all, was that Ms. xxxxxxx had done nothing to hide the bats or avoid interrogation by law enforcement authorities. The suggestion that Ms. xxxxxxx had not declared the bats -- to which the defense could not respond

-- may have eliminated the jury's reasonable doubt.

Under these circumstances, the Government cannot show that the court's answer was harmless. It is well-settled that jury deliberations are a critical stage of a criminal trial. E.g., Bollenbach v. United States, 326 U.S. 607, 612-13 (1946). Moreover, where, as here, the central issue before the jury -- the defendant's credibility -- was sharply disputed and the focus of several jury questions, "the wording of the trial judge's responses to the jury's inquiries assumed even added significance to that normally attending this critical stage of a criminal trial." United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981). Thus, the court's improper suggestion that Ms. xxxxxxx had failed to declare the cricket bats was far from harmless and may well have led the jury to convict.

CONCLUSION

For the reasons stated above, this Court should vacate the judgment below and remand for a new trial.

Respectfully submitted,

THE LEGAL AID SOCIETY

FEDERAL DEFENDER DIVISION

APPEALS BUREAU

52 Duane Street, 10th Floor

New York, New York 10007

Tel.: (212) 417-8742

Attorney for Appellant

CARMEN xxxxxxx

EDWARD S. ZAS,

Of Counsel.

CERTIFICATE OF SERVICE

I certify that a copy of this brief has been served by First-Class mail on the United States Attorney/S.D.N.Y.; Attention: CECIL C. SCOTT, ESQ., Assistant United States Attorney, 225 Cadman Plaza East, Brooklyn, New York 11201.

Dated: New York, New York

June 20, 1997

____________________________

EDWARD S. ZAS

1. Citations to "A." are to the pages of appellant's appendix.

2. Inspector Orosz claimed at trial that Ms. xxxxxxx had told him that she hoped to obtain free tickets to cricket games in exchange for donating the bats. A. 34-35. However, he failed to make any mention of this alleged statement by Ms. xxxxxxx in his written report that was prepared contemporaneously with her arrest. A. 62-63.

3. See also Lacy v. Gardino, 791 F.2d 980, 983 (1st Cir.) ("Jury exposure to facts not admitted during trial violates the sixth amendment right to trial by jury by permitting evidence to reach the jury which has not been subjected to confrontation or cross-examination...."), cert. denied, 479 U.S. 888 (1986); Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980) ("[W]hen a jury considers facts that have not been introduced in evidence, a defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence."), cert. denied, 450 U.S. 1035 (1981).