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.

xxxxxxxxxxxxxxxxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT

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JURISDICTION

The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court having been filed on April 28, 1995, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court denied Mr. xxxxxxxx his due process right to present a defense by excluding from evidence certified copies of court records showing that the man sitting next to Mr. xxxxxxxx on the train, whom Mr. xxxxxxxx testified he saw wearing the jacket in which the police found the crack cocaine at issue, had twice been convicted of cocaine offenses in North Carolina.

II. Whether, given the circumstances under which the police offered Mr. xxxxxxxx the opportunity to try on the jacket in which the drugs were found, the admission of Mr. xxxxxxxx's post-Miranda decision not to try on the jacket violated due process.

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 June 28, 1994, a federal grand jury sitting in the District of Columbia indicted Mr. Anthony xxxxxxxx for possession with intent to distribute more than 50 grams of a substance containing cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii). A. 11. (1)

The government filed a Motion In Limine to Preclude Evidence of Third-Party Culpability, in which it argued that the defense should not be permitted to introduce evidence suggesting that some specific person other than Mr. xxxxxxxx committed the offense absent some link between that third party and the crime (A. 15-20). Specifically, the government sought exclusion of certified copies of two North Carolina court jackets, provided by the defense in discovery, showing cocaine convictions for one "Kevin Jackson" and one "Terry Roberts" (11/1 Tr. 9-15). Defense counsel explained that she was prepared to make the appropriate link and offered to make an ex parte proffer as to the specific nexus she planned to show (11/1 Tr. 11-16). The district court, the Honorable June L. Green, denied the government's motion (11/1 Tr. 16).

The court also denied pretrial a defense motion, pursuant to the Due Process Clause and Doyle v. Ohio, 426 U.S. 610 (1976), to exclude testimony concerning Mr. xxxxxxxx's post-Miranda decision not to try on the jacket in which the drugs were found (A. 12-14; 11/1 Tr. 17-18, 20-25).

Mr. xxxxxxxx's first trial ended in a mistrial during the prosecutor's opening statement (11/1 Tr. 26-39). His second trial commenced at 1:45 p.m. on December 12, 1994 (Tr. 13). The jury retired the next day at 3:13 p.m. (Tr. 223), having heard approximately six hours of opening statements, government and defense testimony, closing arguments and jury instructions (see Tr. 59, 106, 110, 136, 175, 182, 197, 222). On December 15, 1994, after deliberating for more than 12 hours over the course of three days (Tr. 223, 224, 12/14 Tr. 20-21, 12/15 Tr. 3, A. 76), the jury returned a verdict of guilty (12/15 Tr. 3).

On April 25, 1995, Mr. xxxxxxxx was sentenced to 120 months imprisonment and five years of supervised release (A. 77-82). Mr. xxxxxxxx filed a timely notice of appeal (A. 83-84).

B. Statement of Facts

1. The Government's Evidence.

On June 13, 1994, at approximately 2:30 p.m., Metropolitan Police Department Detectives Edward Hanson, John Centrella and Wayne Mullis boarded an Amtrak train as it arrived at Union Station from New York (Tr. 28, 36). Hanson approached two men sitting in the fifth row on the right side of the last train car (Tr. 28, 30, 37, 61-62). Hanson identified himself as a police office and asked to see their tickets (Tr. 28). Neither man could produce a ticket (Tr. 28). Both said they got on the train in New Jersey (Tr. 28-29). When Hanson asked if they had any identification, Mr. xxxxxxxx, who was seated by the window, produced a trucking company identification (Tr. 29, 30). The other man, seated on the aisle, could not produce any identification but stated that his name was "Dixon" (Tr. 29, 30). Both men stated that they were travelling together (Tr. 29).

When Hanson asked if they were carrying any luggage, both men said "yes" and stood up to identify it in the overhead rack. At that time, Hanson explained that he was part of a drug interdiction unit and asked if they were carrying any illegal narcotics (Tr. 29). Both men said "no" (Tr. 29). Each man then consented to a search of his luggage (Tr. 29). Mr. xxxxxxxx removed his two pieces of luggage from the overhead rack and placed them in the aisle where Hanson searched them but found no contraband (Tr. 29-30). Dixon did the same with his bag and a search of it likewise revealed no contraband (Tr. 30).

Each man agreed to a search of his person (Tr. 30). Hanson found no contraband on Mr. xxxxxxxx (Tr. 30). According to Detectives Centrella and Mullis, as Hanson was searching Dixon in the aisle, Centrella, who was standing with Mullis in row six (behind the seats in which the two men had been sitting), pointed to a jacket laying on the tray table in front of the row five window seat and asked Mr. xxxxxxxx, who was standing in row five, "Is this your jacket?" (Tr. 30-31, 37-38, 62-64, 70-71, 80-82, 84, 86). Mr. xxxxxxxx stated that it was (Tr. 64, 82). (2) Centrella then asked, "Can I search that jacket for drugs and guns?" (Tr. 64, 82). Mr. xxxxxxxx said "yes," picked up the jacket, turned around and handed it to Centrella (Tr. 64, 82). Inside each of the two side pockets, Centrella found a plastic bag containing crack cocaine inside a plastic bag of pepper (Tr. 64, 66, 69). (3) Centrella gave an arrest signal to Hanson (Tr. 65, 83). According to Centrella and Mullis, after Mr. xxxxxxxx was handcuffed he stated, "It's not my jacket" (Tr. 65, 83). In contrast, Detective Hanson testified that he heard Mr. xxxxxxxx deny ownership of the jacket as Hanson stood up after completing his search of Dixon (Tr. 30, 48, 49).

Before leaving the train, Hanson found an Amtrak ticket in the name "Quirtaberro," showing travel between New York and Rocky Mount, North Carolina, on the floor in front of the window seat Mr. xxxxxxxx had occupied (Tr. 33-34, 53-54). Mullis walked Mr. xxxxxxxx off the train and, once on the platform, advised him of his Miranda rights (Tr. 87). (4) Mullis then walked Mr. xxxxxxxx to a police car and transported him to the Narcotics Division, where he was placed in a holding cell (Tr. 87-88). After being given his Miranda rights a second time, (5) Mr. xxxxxxxx again told Mullis, who was filling out paperwork, that the jacket did not belong to him (Tr. 88). Mullis then "asked [Mr. xxxxxxxx] if he wanted to try the jacket on and at first he agreed, and I told him I was going to take a picture of him with the jacket on and then he decided not to try the jacket on" (Tr. 88, 90).

Although the defense stipulated to chain of custody and intent to distribute (A. 24-25; Tr. 112-114), and offered to stipulate to the retail value of the drugs seized (Tr. 4-5), the government insisted on putting on a so-called "drug expert" to testify as to the street value of drugs ($19,240) (Tr. 98), the most common means of transporting drugs from "source cities" like New York (planes, trains, buses, and automobiles) (Tr. 96-97), the most common means of packaging drugs for transport ("some type of plastic") (Tr. 97), and the fact that pepper is used in the packaging to mask the odor (Tr. 97).

2. The Defense Evidence.

The defense called a fingerprint expert to explain how latent fingerprints might have been detected on the plastic bags if they had been submitted for fingerprint analysis (Tr. 118-121).

Mr. xxxxxxxx testified in his own defense that the jacket containing the drugs did not belong to him but that he had seen the man who called himself "Dixon" wearing the jacket before the police arrived (Tr. 141-142). Mr. xxxxxxxx explained that he lived in Albany, New York, with his mother and stepfather and that he was taking the train from New York City to Camden, South Carolina, on June 13, 1994, in order to visit his little sisters, who lived with their grandmother in South Carolina (Tr. 139-140). The man sitting next to him on the train from New York to Washington, whom he did not previously know, told Mr. xxxxxxxx that he was on his way to Rocky Mount, North Carolina (Tr. 154, 157). When Detective Hanson asked if he and the other man were travelling aboard the train together, he said "yes" because they were seated together, not because they were travelling to the same destination (Tr. 153-154).

Mr. xxxxxxxx testified that before the police boarded the train, he and "Dixon" had been eating with their tray tables down. When they finished, Dixon cleared the trash from both trays, putting his own tray up as he got up to throw away the trash. When he returned, Dixon took off his jacket and draped it across Mr. xxxxxxxx's tray as he sat down (Tr. 157). Mr. xxxxxxxx testified that his own jacket was in his luggage (Tr. 157-158). He denied ever claiming ownership of the jacket seized by the police (Tr. 155). Rather, Detective Centrella simply asked Mr. xxxxxxxx to hand him the jacket and he did so (Tr. 155-156). When Centrella then asked Mr. xxxxxxxx if the jacket was his, he said "no" (Tr. 155). (6) He testified that the "Quirtaberro" ticket was not his and explained that his ticket had been in his knapsack (Tr. 156).

Mr. xxxxxxxx was shown two different mugshots (A. 27, 48) and identified the person in each of them as the man who had called himself "Dixon." (7) The first mugshot he recognized was inside Defense Exhibit 4 (A. 26-27), identified by Mr. xxxxxxxx as a City of Jacksonville Police Department envelope labeled "Kevin Jackson." (8) Two copies of the second mugshot, which Mr. xxxxxxxx testified were labeled "Terry Roberts," were inside Defense Exhibit 5 (A. 46-48), a Sheriff of Onslow County envelope addressed to the Federal Public Defender which also contained an arrest report from Onslow County for one "Terry Roberts" (A. 47). (9)

3. The Exclusion Of Mr. Dixon's Court Records.

At the conclusion of Mr. xxxxxxxx's testimony, defense counsel offered into evidence Defense Exhibits 6 and 7, the court jackets corresponding to the two mugshots identified by Mr. xxxxxxxx (Tr. 164). (10) Specifically, Defense Exhibit 6 (A. 28-45) was a copy of a court jacket from Onslow County, North Carolina, each page of which was certified by the Clerk of Superior Court, Onslow County, showing that one "Kevin Jackson AKA Derrick Brown," had a 1994 conviction for possession of cocaine (A. 40-41). Defense Exhibit 7 (A. 49-70) was a certified copy of a court jacket from Onslow County, showing that one "Terry Roberts" had a 1992 conviction for possession with intent to sell cocaine (A. 65-66).

The prosecutor objected that the defense had failed to establish a linkage between the mugshots and the court files (Tr. 164-165), suggested that defense counsel might be "faking a photograph that [she has] used in other cases" (Tr. 167), argued that the most that should come in would be a certified copy of a conviction (as opposed to other related court documents) (Tr. 166, 168), and complained generally that the evidence was "highly irregular" (Tr. 142, 143, 145, 148, 150, 151, 168), irrelevant (Tr. 144, 145, 146, 168, 178), and "incredibly prejudicial" to the government's case (Tr. 145, 150).

The court expressed concern that both the Terry Roberts court file and a handwritten notation on the back of the Terry Roberts photos indicated a birth date of "10-22-74," while the Terry Roberts arrest report accompanying the photos showed a date of birth of "10-22-24," a discrepancy defense counsel noted was an obvious typographical error and would not confuse the jury in any event since the defense was seeking to introduce only the certified court files, not the photos or arrest report (Tr. 169-170, 175-177). Defense counsel represented that the photographs did correspond to the certified court files and argued that a sufficient link had been shown (Tr. 166), (11) but offered in the alternative to bring a custodian from the Onslow County Sheriff's Department within 24 hours to verify the correspondence between the mugshots and the court jackets (Tr. 167, 170, 171-172, 174, 178, 180, 182-183).

The court initially indicated that "I don't think it proves anything" (Tr. 169) and that "it's too confusing. . . . It doesn't make any sense" (Tr. 171). The court expressed concern about the time it would take to summon a records custodian to explain the nexus (Tr. 170, 173, 174) but also stated, "even if the name Dixon were on there, I wouldn't accept it" (Tr. 172) and "I don't think there's going to be anything that's admissible, whatever length of time it is" (Tr. 174). Moreover the court expressed concern that the police witnesses had stated that they would not recognize Dixon if they saw him again (see Tr. 45-56, 89) and asked, "Is there anyone who's coming in who's going to say this is the man who was seated beside him?" (Tr. 173). Defense counsel explained that that part of the evidentiary foundation was established by Mr. xxxxxxxx's identification of the mug shots (Tr. 173). After briefly reviewing the documents (Tr. 175-178), the court stated:

. . . I think there are too many things in here that are absolutely, I just cannot accept as regular documents, that are going to prove anything, and I really think that we are wasting a lot of time. Accordingly, I will rule against them all.Tr. 178. When defense counsel asked again for "24 hours to get someone up here to provide the linkage" (Tr. 178), the government argued that the evidence was not relevant and therefore not admissible "whether the linkage was made or not" (Tr. 178). The court then agreed to consider the exhibits further over the lunch hour in order "to satisfy myself that it is really a mess" (Tr. 180). Before the recess, the prosecutor again argued that the evidence was irrelevant even assuming an adequate linkage, and appeared to indicate that the government would prefer the court to rule the foundation adequate over having live testimony from a records custodian (Tr. 181) (emphasis added).

Your Honor, I think, just to make your decision a lot easier, if it comes down to the point where the court is going to allow her to bring in some sheriff who probably knows whoever this individual is in this photograph to get up there and testify as to what a bad guy he is and he's done all this stuff that they have alleged in those documents, we don't want that to happen. So I think the issue, of course, which the court has already defined, is whether or not this evidence is admissible, whether or not the linkage occurs or not; and I don't think that even with a sheriff coming down here and saying, "Yeah, this is Joe Shmo who did this," that that evidence would be admissible, or certainly we wouldn't want to have someone coming from Onslow County and further prejudicing our case by testifying as to what a bad individual this person, whoever he is, in the photograph is.

After the lunch break, the court ruled (Tr. 182) (emphasis added):

I know what you're trying to show and I just don't believe that this is something, even if you brought a custodian of record here, that would be able to cure the fact that this would be so confusing to the jury, that I don't think there would be any way that they would understand what was going on. The photographs I don't even think could be linked in with the, if you brought in a custodian, they don't seem to have anything in the photographs that will tie in with these papers. Isn't that correct? Except on the back of them. . . . And, of course, the custodian probably doesn't know who wrote them on the back. It's certainly not an official situation, I don't think.

Defense counsel suggested that a custodian could make the definitive link using the identifying numbers on the mugshot placards (A. 27, 48) (Tr. 182-183). However, concluding that "nobody knows anything about the person who was sitting next to the defendant," the court excluded the evidence (Tr. 184). The defense then rested (Tr. 184).

At 1:43 p.m. on the third day of deliberations, the jurors sent out a note stating, "Your honor, we the jury cannot reach a unanimous verdict" (A. 71; 12/15 Tr. 2). At 1:50 p.m., the jurors sent a superseding note stating, "we the jury ha[ve] agreed to continue, until we reach a verdict" (A. 73; 12/15 Tr. 2). The verdict sheet was sent out at 2:22 p.m. (A. 76).

SUMMARY OF ARGUMENT

The district court denied Mr. xxxxxxxx his due process right to present a defense by excluding from evidence certified court records which were essential to corroborate Mr. xxxxxxxx's assertion that the jacket belonged to "Dixon," not to him. Chambers v. Mississippi, 410 U.S. 284 (1973). Refusal to admit defense evidence tending to inculpate a third party has repeatedly been found to be reversible error as long as there is some nexus linking the suspected third party to the crime with which the defendant is charged. Here, that link was provided by Mr. xxxxxxxx himself, who testified that he saw "Dixon" wearing the jacket and identified "Dixon" in two mugshots. The excluded evidence that the person in those mugshots had twice been convicted for cocaine offenses in North Carolina would have provided crucial corroboration for Mr. xxxxxxxx's testimony that the jacket belonged to that person, not to him. The potential for jury confusion in this case was minimal and, in any event, did not outweigh the clear probative value of this critical defense evidence.

The court also denied Mr. xxxxxxxx due process by permitting Detective Mullis to testify over objection concerning Mr. xxxxxxxx's decision not to try on the jacket. The Miranda warnings, together with the manner in which Mullis made the offer to allow Mr. xxxxxxxx to try on the jacket, operated to "unfairly 'trick'" Mr. xxxxxxxx in the way the Supreme Court indicated would be improper in South Dakota v. Neville, 459 U.S. 553, 566 (1983). ARGUMENT

I. THE TRIAL COURT DENIED MR. xxxxxxxx HIS DUE PROCESS RIGHT TO PRESENT A DEFENSE BY EXCLUDING EVIDENCE CORROBORATING HIS TESTIMONY THAT A THIRD PARTY COMMITTED THE CHARGED OFFENSE.

A. Standard of Review

Because trial counsel consistently asserted Mr. xxxxxxxx's constitutional right to present the excluded court records (A. 21-23; 11/1 Tr. 11-12, Tr. 144, 145, 146, 147), this due process violation is subject to full appellate review. A trial court's decision to exclude evidence of third-party culpability is reviewed for abuse of discretion. People of Territory of Guam v. Ignacio, 10 F.3d 608, 611 (9th Cir. 1993). Cf. United States v. Johnson, 970 F.2d 907, 910 (D.C. Cir. 1992) (whether Sixth Amendment permitted exclusion of defense witnesses as sanction for violating notice-of-alibi rule required "exercise of discretion by the trial court"). This Court must reverse unless the government can show that this constitutional violation was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). See Johnson, 970 F.2d at 912 (remanding where government failed to meet Chapman standard); Pettijohn v. Hall, 599 F.2d 476, 482 (1st Cir. 1979) (applying Chapman standard to violation of Sixth Amendment right to present testimony that eyewitness had initially identified another man as robber).

B. The Court Abused Its Discretion By Excluding Evidence Tending To Prove That The Cocaine And "Quirtaberro" Train Ticket Belonged Not To Mr. xxxxxxxx, But To The Man Seated Next To Him Who Could Not Produce Any Identification.

In Washington v. Texas, 388 U.S. 14, 19 (1967), the Supreme Court held that the "right to present a defense," is "a fundamental element of due process of law." In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court found a due process violation where the defendant was prevented by state hearsay rules from presenting evidence that would have corroborated a third party's subsequently-repudiated confession to the crime with which the defendant was charged. The Supreme Court held that the evidentiary exclusions denied Chambers a fair trial even where the jury was read the third party's sworn confession and the defendant had been able to "chi[p] away at the fringes" of the repudiation. Chambers, 410 U.S. at 294, 302. Likewise here, the trial court's exclusion of the certified court records corroborating Mr. xxxxxxxx's testimony that the jacket containing the drugs belonged to the man sitting next to him on the train on the ground that the records were "confusing" (Tr. 171, 180, 182) "denied him a trial in accord with traditional and fundamental standards of due process." Chambers, 410 U.S. at 302.

Evidence "tending to show that someone other than the accused committed the crime, and that the accused did not, is quintessentially exculpatory." Ford v. United States, 616 A.2d 1245, 1249 (D.C. App. 1992). In United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978), this Court reversed where the trial court improperly excluded defense evidence pointing to a third party's guilt.

[E]vidence that another person was selling phenmetrazine from the house was decidedly relevant. If the jury had believed that "Timmy" was a dealer in residence, it might have concluded that appellant had merely purchased the twelve pills found in his possession from Timmy, and that Timmy, not appellant, exercised dominion and control over the seventy-seven pills in the basement with the intent to distribute them.

Id. at 936. Although recognizing that the trial judge has wide discretion to determine relevancy, the Morgan court concluded that the district court had abused its discretion "since it plainly

appears that the excluded evidence bears on a matter that could be determinative of guilt or innocence." Id. at 936.

Other courts have likewise reversed where a defendant has been precluded from presenting exculpatory evidence linking a third party to the crime. See Freeland v. United States, 631 A.2d 1186, 1189 (D.C. App. 1993) (reversing where trial court excluded circumstantial evidence tending to suggest that William Hawthorne, against whom the defendant was scheduled to testify in a murder case, was responsible for the murder of defendant's wife, including evidence that Hawthorne had committed prior acts of retaliation against witnesses); United States v. Stevens, 935 F.2d 1380, 1384, 1401-1407 (3d Cir. 1991) (reversing where trial court excluded "reverse 404(b)" evidence pointing to an unknown third party; while the excluded other crime was not so similar as to be a "signature" crime, it cleared the "relatively low relevancy hurdle" that applies when 404(b) evidence is proffered by a defendant); Stack v. United States, 519 A.2d 147, 153 (D.C. App. 1986) (reversing where court excluded evidence that third party had assaulted decedent in the past where evidence "might have caused a reasonable jury to conclude that there was a reasonable possibility that [third party] had hit [decedent] on the evening [at issue]"); United States v. Armstrong, 621 F.2d 951, 953 (9th Cir. 1980) (reversing bank robbery conviction where trial court excluded evidence that another man, matching the robber's description, had used the bait money taken in the robbery to purchase a car); Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979) (reversing where trial court excluded testimony that eyewitness had initially identified another man as robber); United States v. Robinson, 544 F.2d 110, 112-113, 115-116 (2d Cir. 1976) (reversing where trial court excluded testimony that jail employee thought robber in bank surveillance photo resembled one Eli Turner, who was suspected of two armed robberies close in time to the bank robbery with which defendant was charged), cert. denied, 434 U.S. 1050 (1978).

While some courts have required a "clear link" between the suspected third party and the offense before allowing evidence of that person's culpability, that standard is relatively easy to meet and has certainly been met here.

What we mean by "clearly link" . . . is proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense. This proof permits the admission of evidence which otherwise is generally excluded because it is too remote in time and place, completely unrelated or irrelevant to the offense charged, or too speculative with respect to the third party's guilt.Johnson v. United States, 552 A.2d 513, 516 (D.C. App. 1989). "'[T]here is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense. Rather, the evidence need only tend to create a reasonable doubt that the defendant committed the offense.'" Freeland, 631 A.2d at 1189, quoting Johnson, 552 A.2d at 516. Here, where Mr. xxxxxxxx himself gave eyewitness testimony identifying "Dixon" as the true culprit, there can be no question that the defense "clearly linked" the third-party suspect and the offense in question. This is not a case such as Johnson in which all the defendant proffered was a third party's history of prior crimes and an opportunity to commit the one at issue. 552 A.2d at 518. Unlike the defendant in Johnson, Mr. xxxxxxxx testified that he saw the other party commit the crime. Dixon's prior bad acts tended to corroborate Mr. xxxxxxxx's testimony by linking Dixon to 1) cocaine trafficking, 2) North Carolina (the destination on the "Quirtaberro" ticket), and 3) a history of using aliases. The Constitution "severely restricts a trial judge's discretion to reject such relevant evidence." Pettijohn, 599 F.2d at 480.

The trial court greatly overstated the potential for confusion. Mr. xxxxxxxx clearly identified each mugshot as "Dixon." The fact that the corresponding court files identified him by different names would hardly be difficult for a jury to grasp; it is a matter of common knowledge that criminals often use aliases. See Tr. 179 (Defense counsel: "Your Honor, we're not holding him up as a choirboy. He uses a different name every time he's arrested."). Indeed, "Dixon's" prior use of multiple aliases made it more likely that he, who had been unable to produce an identification, was the one who was posing as "Quirtaberro," not Mr. xxxxxxxx.

The foundation defense counsel laid connecting the mugshots and their corresponding court files was adequate for the court to find the latter admissible. Defense counsel attested to the connection between the respective mugshots and court files, both of which she had obtained from Onslow County officials. Moreover, there were enough pieces of matching information (name, arrest date, birth date, and/or arresting jurisdiction) to make the nexus between each mugshot and its respective court file clear on its face. For example, the court could consider the legend "Roberts, Terry DOB 10 22 74" on the back of the Exhibit 5 mugshot, which was not being offered into evidence, and which was not being relied upon for its truth (that the person in the picture was actually named Terry Roberts and was actually born on October 22, 1974), to find that an adequate link had been made between that mugshot and the "Terry Roberts" court file. To the extent the prosecutor questioned the reliability of that connection, he was free to argue the weight of the evidence to the jury.

Even assuming, arguendo, that the evidentiary link established by counsel's representations and by the face of the documents themselves was not sufficient, defense counsel offered to bring in a records custodian to establish a definitive connection between the mugshots identified by Mr. xxxxxxxx as "Dixon" and the two court files. At a minimum, the court was wrong in ruling that, even with such testimony, the evidence would not be admissible (Tr. 182). Cf. Ford, 616 A.2d at 1249-50 (court erred in excluding witness's testimony that she overheard voice she could not identify confess to the killing to the defendant given defense counsel's proffered readiness to "connect up" that testimony by having defendant identify the speaker; error harmless where three other defense witnesses did testify that same third party had admitted the shooting).



The government cannot show that the trial court's unconstitutional exclusion of defense evidence was harmless beyond a reasonable doubt. Mr. xxxxxxxx's testimony directly contradicted that of two police officers on the critical issue of whether he claimed ownership of the jacket. A third officer admitted that he did not hear that alleged admission, although he was only a few feet away. In evaluating Mr. xxxxxxxx's testimony, the jurors would certainly have taken into consideration his obvious "interest in the outcome of the case" and "motive for not telling the truth" (J.I. 9). The jurors were specifically instructed to consider whether a witness's testimony had been "corroborated by other credible evidence" (J.I. 9). In light of these instructions, evidence in the form of official and impartial court records corroborating Mr. xxxxxxxx's testimony was crucial. The jury's evaluation of his testimony that the jacket with the cocaine inside belonged to "Dixon" would undoubtedly have been different if the jury had been permitted to hear evidence that "Dixon" had prior convictions under two different names for cocaine trafficking in North Carolina. Even without the critical corroborating evidence, the jurors deliberated for 12 hours (twice as long as the trial itself) before finding Mr. xxxxxxxx guilty, and at one point sent out a note indicating an inability to reach a verdict. "The jury's difficulty in reaching a decision strongly suggests that, under the specific circumstances of this trial, the error cannot be harmless." See United States v. Houser, 746 F.2d 55, 63 (D.C. Cir. 1984).

II. THE ADMISSION OF TESTIMONY CONCERNING MR. xxxxxxxx'S POST- MIRANDA DECISION NOT TO TRY ON THE JACKET IN WHICH THE DRUGS WERE FOUND VIOLATED DUE PROCESS.

A. Standard of Review

Defense counsel preserved this constitutional claim by moving to preclude the government's use of Mr. xxxxxxxx's post-Miranda refusal to try on the jacket under Doyle v. Ohio, 426 U.S. 610 (1976) (A. 12-14; 11/1 Tr. 17-18, Tr. 4). Mr. xxxxxxxx's conviction must be set aside unless the government can prove beyond a reasonable doubt that this due process violation was harmless. Brecht v. Abrahamson, 113 S. Ct. 1710, 1717-18 (1993); Chapman v. California, 386 U.S. 18, 24 (1967).

B. The Circumstances Of The Detective's Offer To Let Mr. xxxxxxxx Try On The Jacket Tricked Him Into Believing That Refusal Would Carry No Adverse Consequences.

In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that use of defendant's post-Miranda silence against him at trial violates due process because "[the] assurance [that silence will carry no penalty] is implicit to any person who receives the [Miranda] warnings." Id. at 618.

The Miranda warnings emphasize the dangers of choosing to speak ("whatever you say can and will be used as evidence against you in court"), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of the Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him.

South Dakota v. Neville, 459 U.S. 553, 565 (1983). The Court in Neville held, by contrast, that due process was not violated by the introduction at trial of a defendant's refusal to submit to a

blood-alcohol test where the defendant was told that refusal carried some adverse consequences (id. at 566):



[T]he officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a "safe harbor," free of adverse consequences.

The Neville Court concluded that in the context of the particular warnings in that case, use at trial of the defendant's refusal to submit to the test comported with fundamental fairness (id.) (emphasis added):

While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial.

The particular circumstances in this case, by contrast, were such that Mr. xxxxxxxx was "unfairly 'trick[ed]'" by the use of Mullis's testimony about his refusal to wear the jacket. First, Mr. xxxxxxxx was twice given the "imbalance[d]" Miranda warnings (id. at 565), which, under Doyle, implicitly assured him that he could remain silent without fear of any adverse consequence. When Mr. xxxxxxxx repeated his earlier protest that the jacket was not his, Mullis offered Mr. xxxxxxxx an opportunity to exculpate himself by trying on the jacket to see if it fit. Mr. xxxxxxxx accepted. When Mullis then told Mr. xxxxxxxx that he planned to photograph him wearing the jacket, it became clear that if Mr. xxxxxxxx chose to try on the jacket the police planned to take the opportunity to create evidence that would hurt him at trial (even if it fit poorly). Unlike in Neville, Detective Mullis never gave Mr. xxxxxxxx the slightest hint that a decision not to model the jacket would have any adverse consequences. (12)

Although the Fifth Amendment right to remain silent does not as a matter of constitutional law include the right to refuse to engage in non-testimonial acts such as modeling clothing, see Neville, 459 U.S. at 559 (citing Schmerber v. California, 384 U.S. 757 (1966)), it is unlikely that a layperson such as Mr. xxxxxxxx would have grasped that legal subtlety. Instead, he was likely misled by the promises in the Miranda warnings, which, unlike those in Neville, were not counterbalanced by an explicit warning that failure to participate in the physical test would carry adverse consequences. Use of his decision against him under these circumstances unfairly "tricked" Mr. xxxxxxxx in the way suggested in Neville.



CONCLUSION

For the foregoing reasons, this Court must reverse the judgment below and remand to the district court for a new trial.





Respectfully submitted,





A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Anthony xxxxxxxx







CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Anthony xxxxxxxx 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 xxxxxxxx have been served by first-class mail, postage pre-paid, addressed to: Assistant United States Attorney John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 22nd day of November, 1995.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender



1. "A." refers to pages of the Appendix filed with this brief. "11/1 Tr." refers to the transcript of arguments on various motions in limine ruled upon before the mistried first trial. "Tr." refers to pages of the sequentially numbered transcripts of the trial proceedings, beginning with page one on December 12, 1994, and ending with page 225 on December 13, 1994. "J.I." refers to pages of the separately transcribed jury instructions. "12/14 Tr." and "12/15 Tr." refer to transcripts of proceedings during deliberations. "3/16 Tr." refers to the transcript of a hearing on a new trial motion. All transcript pages cited in this brief are reproduced in the Appendix.

2. The district judge later stated that she did not believe Centrella's and Mullis's testimony that Mr. xxxxxxxx had claimed ownership of the jacket (3/16 Tr. 18) -- a conversation that the government theorized Hanson did not hear because he was crouched down searching Dixon when it was taking place (Tr. 48-49, 58-59, 204).

3. The defense stipulated 1) Government Exhibit 8 contained the same cocaine base the police recovered from the jacket on the tray table on June 13, 1994; 2) Government Exhibit 8 consisted of 56 bags of rock-like substance weighing 137.5 grams and containing 70% cocaine base; 3) the weight and packaging of the drugs suggested that whoever possessed them did so with the specific intent to distribute, rather than for personal use; and 4) Government Exhibit 10 was the same jacket recovered from the Amtrak train (Tr. 112-114; A. 24-25).

4. Although recognizing that the issue was not before her because Judge Hogan had already denied the motion to suppress Mr. xxxxxxxx's statements, Judge Green noted, "I think that [Mr. xxxxxxxx] was given his Miranda rights quite late in the day, myself" (11/1 Tr. 23).

5. During opening statement, the prosecutor attempted to inform the jury that Mr. xxxxxxxx had invoked his right to remain silent by refusing to sign the card acknowledging receipt of the Miranda warnings. See Tr. 20 (after Mullis read Mr. xxxxxxxx his Miranda rights, "Mr. xxxxxxxx refused to even acknowledge that the rights had been --"). When defense counsel objected to this obvious Doyle violation (Tr. 20), the court denied her motion for mistrial or for a curative instruction, but ordered the prosecutor "don't do it again" (Tr. 21).

6. Despite the court's warning during his opening statement, the prosecutor nevertheless attempted to use Mr. xxxxxxxx's invocation of his Miranda rights against him, attempting to cross-examine him as to why he had not told the police "at the station" that the jacket belonged to "Dixon" (Tr. 159). When the defense objected to this blatant Doyle violation, the prosecutor restricted his inquiry to the pre-Miranda period (Tr. 159-161).

7. Based on its earlier ruling denying the government's motion to exclude the certified court records for "Kevin Jackson" and "Terry Roberts," the court overruled the government's objection to Mr. xxxxxxxx's identification of the mug shots corresponding to those files (Tr. 142-151). The court ruled that it would allow the defense to attempt to link the mug shots (which defense counsel was not attempting to introduce into evidence) (Tr. 142, 148) to the certified court records and would rule on each step in the linkage as it came up (Tr. 151).

8. The court sustained the government's objection to Mr. xxxxxxxx's stating of the information on the envelope (Tr. 152).

9. The court sustained the government's objection to repeating any information from the envelope or arrest report but the prosecutor did not object when Mr. xxxxxxxx repeated the identifying information on the back of the Terry Roberts photos (Tr. 152-153).

10. Undersigned counsel is filing a motion with the district court to transmit the original Defense Exhibits 4, 5, 6 and 7 to the Clerk of this Court so that they will be available for examination by the panel if needed.

11. The Defense Exhibit 4 mugshot was inside an envelope with a return address from the police department in Jacksonville, North Carolina, on which had been typed "KEVIN JACKSON" (A. 26), the same name on the court records in Defense Exhibit 6. Moreover, the person in the mugshot is wearing a placard labelled "Police Department/Jacksonville, N.C." and bearing the date "0804'93" (A. 27) -- the same date as the offense set forth in the certified "Kevin Jackson" court jacket (A. 28, 29, 33, 40).

The Defense Exhibit 5 mugshot was inside an envelope with a return address from the Office of the Sheriff of Onslow County (A. 46) and the photo bore on the back the handwritten notation "Roberts, Terry DOB 10 22 74" (A. 48) -- the same name and date of birth set forth in the Defense Exhibit 7 court jacket (A. 50, 61, 62, 64, 67). The person in the mugshot is wearing a placard labelled "Sheriff's Dept/Onslow County/Jacksonville N.C. -- 920057" (A. 48) (emphasis added), further linking the person in the picture to the 1992 offense set forth in the Terry Roberts court jacket. Finally, the information in the arrest report (A. 47) accompanying the Terry Roberts mugshots matches the information in the court jacket, with the exception of the typographical error respecting the date of birth.

12. Indeed, Mullis testified that Mr. xxxxxxxx was "[a]bsolutely" "within his rights . . . just to say he didn't want to try [the jacket] on and have a photograph taken of him" (Tr. 90).