CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES



Pursuant to Rule 11 of the General Rules of this Court, appellant, Santos xxxxxxxx, hereby states as follows:

A. Parties and Amici: The parties below were the defendant-appellant, Santos xxxxxxxx, a co-defendant, Carlos xxxx, who was acquitted, and the plaintiff-appellee, the United States of America. There are no amici.

B. Rulings Under Review:

The prosecutor's plainly improper appeal to ethnic bias in his questions to witnesses and his closing argument.

The trial court's plainly erroneous definition of "beyond a reasonable doubt" as a "strong belief."

The trial court's plainly erroneous admission of hearsay testimony by two of the government's witnesses regarding statements made by out-of-court declarants that Mr. xxxxxxxx "had just left" the premises from which the police recovered the contraband in this case and that he resided at those premises.

The trial court's admission, over defense objection, of testimony by the government's cooperating witness regarding prior bad acts by Mr. xxxxxxxx.

C. Related Cases: The case has not been before this Court or any other court previously. The consolidated appeals of Juan Pablo xxxxxx and Victor xxxxx (Nos. x and xx, respectively) and Wilfredo ** (Nos. x and x, respectively), raised the issue regarding United States District Judge Stanley Harris' jury instruction on reasonable doubt which diluted the government's burden of proof.


TABLE OF CONTENTS

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . vii

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATUTES AND RULES . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

Proceedings Below . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . 3

1. Introduction . . . . . . . . . . . . . . . . . . 3

2. Execution of the Search Warrant and Subsequent Events . . . . . . . . . . . . . . . . . . . . . 3

3. Events Prior To The Execution of the Search Warrant: The Cooperating Witness' Testimony . . 7

4. The Arrest of Mr. xxxxxxxx . . . . . . . . . . . 9

5. The Prosecutor's Repeated Appeals To Ethnic Bias . . . . . . . . . . . . . . . . . . 10

6. The Jury Instruction On Reasonable Doubt . . . . 11

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. The Prosecutor's Frequent References To Mr. xxxxxxxx's Heritage Deprived Him Of His Right To Due Process Of Law . . . . . . . . . . . . . . . . . . . . . . . 12



II. The Trial Court Improperly Defined Reasonable Doubt During The Jury Instructions In A Way Which Reduced The Government's Burden Of Proof. . . . . . . . . . . 17

III. The Trial Court Erroneously Admitted Hearsay To Establish That Mr. xxxxxxxx Resided In The Apartment From Which The Police Recovered The Drugs In This Case . . . . . . . . . . . . . . . . . . . . . . . . 20

IV. The Trial Court Improperly Allowed The Government's Cooperating Witness To Testify About Prior Bad Acts By Mr. xxxxxxxx . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 36

ADDENDUM





STATUTES AND RULES



Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and Rule 11(a)(3) of the General Rules of this Court, pertinent statutes, rules, regulations, are reproduced in the Addendum to this brief.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. 1291.

ISSUES PRESENTED

I. Whether Mr. xxxxxxxx was denied his right to due process of law by the prosecutor's questions and closing arguments which appealed to ethnic bias.

II. Whether the trial court erred and reduced the government's burden of proof by defining reasonable doubt as a "strong belief."

III. Whether the trial court erred in allowing hearsay testimony from two of the government's witnesses about out-of-court statements of out-of-court declarants that Mr. xxxxxxxx had just left the apartment from which the police recovered the contraband in this case and that he resided at those premises.

IV. Whether the trial court erred in admitting, over defense objection, testimony from the government's cooperating witness regarding prior bad acts by Mr. xxxxxxxx.



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No.





UNITED STATES OF AMERICA, Appellee,



v.

SANTOS xxxxxxxx Appellant,





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





BRIEF FOR APPELLANT







STATEMENT OF THE CASE

Proceedings Below

Santos xxxxxxxx was arrested on March 24, 1991, based upon the proceeds of the execution of a search warrant for Apartment 603 at xxxx Sixteenth Street, N.W. on December 20-21, 1990. On April 18, 1991, the grand jury returned a four-count indictment against Mr. xxxxxxxx and his co-defendant, Carlos xxxxxxxx. Mr. xxxxxxxx was named in three of the four counts. He was charged with Mr. xxxxxxxx, and with other persons known and unknown to the grand jury, with conspiring from October, 1990, to December 21, 1990, to possess with the intent to distribute over fifty grams of cocaine base, in violation of 21 U.S.C. 841(a)(1), 846. In the second count of the indictment he and Mr. xxxxxxxx were charged with the December 21, 1990 unlawful possession with the intent to distribute over fifty grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii), and 18 U.S.C. 2. Finally, in the third count of the indictment, he and Mr. xxxxxxxx were charged with the December 21, 1990, unlawful possession with the intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. 841(a)(1) and 841 (b)(1)(C), and 18 U.S.C. 2. (1)

Mr. xxxxxxxx's jury trial before Judge Harris commenced on August 13, 1991. The government presented its case on August 14, 15 and 16, 1991.

On August 19, 1991, the jury heard closing arguments and were instructed on the law. Tr. VI 2-101. (2) Judge Harris instructed the jury twice that they were required to convict Mr. xxxxxxxx if they had a "strong belief" in his guilt. Tr. VIA 83.

On August 19, 1991, the jury convicted Mr. xxxxxxxx of each of the three counts of the indictment in which he was charged and on November 4, 1991, he was sentenced to a period of incarceration of one hundred twenty-one months followed by a term of five years' supervised release. The jury acquitted Mr. xxxxxxxx of all counts with which he was charged. See Note 1, supra.

Statement of Facts

Introduction

According to the government's evidence, late in the evening of December 20, 1990, the police prepared to execute a search warrant on Apartment 603 at 3300 Sixteenth Street, N.W., Tr. III 40, an apartment the government contended was leased by Mr. xxxxxxxx. Tr. II 46-50. To establish that Mr. xxxxxxxx leased Apartment 603 the government called Ana Lopez, a former employee of the management company that had managed 3300 Sixteenth Street, N.W. She testified that Mr. xxxxxxxx had applied for Apartment 603 in October, 1990, although she claimed he had failed to pay rent on the apartment in December, 1990 and January, 1991. Tr. II 46-50, 60-62. As discussed below, in preparing to execute the search warrant, the government sent a cooperating civilian, Susana Dedios, to the apartment in an effort to determine whether Mr. xxxxxxxx was home.

Execution of the Search Warrant and Subsequent Events

Shortly after midnight on December 21, 1990, the police executed the search warrant they had obtained for Apartment 603, recovering a quantity of drugs as well as other tangible evidence which the government introduced at trial (including paraphernalia, scales, mail and other personal papers and documents). Tr. III 47-53, 61-62, Tr. IV 24-59. (3)

There was no one home in the apartment when the police executed the warrant. Tr. III 42-43, 60, Tr. IV 95. After the police officers had executed the search warrant, however, four officers remained hidden in the apartment, Tr. III 58, 63, Tr. IIIA 9-10, 15, 75, and eventually three individuals began to enter the apartment, at which time the police, gave chase to them. Tr. III 43-44, 63-64, 65-66, 67-69, Tr. IIIA 11, 16, 35-40, 57, 58, 61-62, 75-79, 81-84, 95-104, 112-116.

Mr. xxxxxxxx's co-defendant, Carlos xxxxxxxx, was caught during the chase, Tr. III 67-69, 72, Tr. IIIA 35-36, but the other two individuals who ran down the stairs of the apartment building were not caught. Tr. III 75, Tr. IIIA 57, 83. Three steps from the landing on which Mr. xxxxxxxx was arrested the police recovered packages containing six grams of cocaine base and two grams of cocaine hydrochloride. Tr. III 69-75, Tr. IV 68, 72. None of the officers observed anyone drop or throw the packages of drugs. The government contended that one of the two individuals who successfully fled that night was Mr. xxxxxxxx. Based upon the documents recovered from the apartment, see Note 3, supra, police officers' testimony that Mr. xxxxxxxx was one of the three persons who fled when they opened the door to Apartment 603, (4) and the testimony of the cooperating informant, Susana Dedios, the government contended that Mr. xxxxxxxx was in constructive possession of the drugs and drug paraphernalia found in the apartment on December 21, 1990.

There was no direct evidence linking Mr. xxxxxxxx to the contraband found in the apartment. He was not seen dropping contraband during the chase. Tr. IIIA 13. Likewise, he was not seen in actual possession of any of it, nor was there any testimony from any of the government's witnesses that they had seen him in the apartment when the contraband was there. (5) Finally, he was not even in the apartment at the time the search warrant was executed, nor was any evidence adduced that his fingerprints were found on any of the items the police recovered from Apartment 603.

The circumstantial evidence the government adduced to link Mr. xxxxxxxx to the charged offenses included testimony that during the chase the individual the government claimed was Mr. xxxxxxxx took off a jacket he was wearing. After the chase a jacket was recovered from the stairs. Tr. III 73, Tr. IIIA 39-56. Officer Isaiah Cunningham conceded that no one was seen dropping the jacket. Tr. IIIA 13, 26-27. In one pocket of the jacket the police recovered keys and a beeper. Tr. III 73-75. The government elicited testimony from Ana Lopez, the former resident manager of 3300 Sixteenth Street, N.W., Tr. II 44, that the keys (Government's Exhibit 8) fit the main door of xxxx Sixteenth Street, N.W. and the mailboxes there. Tr. II 55-56. Finally, the police recovered documents from the apartment which the government contended linked Mr. xxxxxxxx to the apartment. See Note 3, supra. The police recovered a photograph of Mr. xxxxxxxx, Tr. IV 39-40, 50, and also retrieved an immigration document in the name of Salvador De La Rosa with Mr. xxxxxxxx's photograph on it, as well as other identification documents. Tr. III 47-51. None of the documents were recovered from Mr. xxxxxxxx, nor was he ever seen in possession of them. Tr. III 51, Tr. IV 95. According to the government's theory of the case, Mr. xxxxxxxx went by different names, as reflected by the immigration and lease documents, but was the individual in constructive possession of the contents of Apartment 603 at xxxx Sixteenth Street, N.W.

Events Prior To The Execution of The Search Warrant: The Cooperating Witness' Testimony

Susana Dedios testified pursuant to a cooperation agreement she had made with the government. Tr. V 15-21. According to her testimony, there were two people in Apartment 603 when she went there at the behest of Officer Dale Sutherland to determine whether anyone was home before the search warrant was executed. Tr. V 39. One of the two people in the apartment was Carlos xxxxxxxx, Tr. V 39-40, but neither of them was Mr. xxxxxxxx. The other person, whom Dedios subsequently identified as a Dominican named Ricardo Jimenez, told her that "Jerry was not there; that he had been gone for almost two hours ... [and that] 'he [would] be back soon because he ha[d] been gone for two hours already.'". Tr. V 39-40. (6) Dedios testified that she had known Mr. xxxxxxxx for six years, Tr. V 13-14, having first met him when he came to her mother's restaurant. Tr. V 21. She further testified that she had lived at 3300 Sixteenth Street, N.W. and thought that Mr. xxxxxxxx lived in Apartment 603 of that building. Tr. V 21-23. Over an on-going objection, Tr. V 24, 31, 36, Dedios testified that in November and December of 1990 Mr. xxxxxxxx was selling drugs "for a living," that she had seen him with drugs in his hands, see Note 5, supra, and that she had asked him whether he was still selling drugs to which he replied that he was. Tr. V 23, 25, 36. The prosecutor improperly highlighted this testimony by following it up with a question about whether Mr. xxxxxxxx had ever had "a real job" in "a lawful occupation." Tr. V 24. Dedios responded that when she first met Mr. xxxxxxxx, which her grand jury testimony indicates was six years before, he had been working as a truck driver. Tr. V 24. She also stated that Mr. xxxxxxxx had indicated to her that in November and December of 1990 he was "still selling" cocaine and that, instead of going to New York himself, he had carriers getting it for him from New York. Tr. V 36-38. This testimony was highlighted during the government's closing argument. Tr. VIA 16-17. The prosecutor asked Dedios whether she had ever seen Mr. xxxxxxxx with drugs and, as explained in Note 5, supra, her affirmative response related to a time remote from the charges lodged by the indictment when years before Dedios had seen Mr. xxxxxxxx with drugs in a car; accordingly, defense counsel moved for a mistrial. Tr. V 25-34.

Also over defense objection, Tr. V 31, Dedios testified that Mr. xxxxxxxx was a friend of a drug dealer named Miguel Profeta, who was incarcerated but had made a living selling drugs and that Mr. xxxxxxxx "did business" with Profeta. Tr. V 30-33. Dedios further testified that Mr. xxxxxxxx made cocaine deals with Dominicans. Tr. V 36.

The Arrest of Mr. xxxxxxxx

Although the police obtained an arrest warrant for Mr. xxxxxxxx, he was not arrested until March 24, 1991, when he went to a nightclub at which an off-duty police officer was working. Tr. III 19-21. On cross-examination, defense counsel established that on March 24, 1991, when Mr. xxxxxxxx was arrested, he went up to a person known to him to be a police officer and said he wanted to talk and made no effort to flee. Tr. III 30, 32-34.

The Prosecutor's Repeated Appeals To Ethnic Bias

The prosecutor's closing argument reiterated an appeal to ethnic bias which he had presented during his opening statement and witness examinations. See e.g. Tr. VIA 21 ("Cocaine is stuff that comes from, not from somebody's back yard here in the District of Columbia but its made elsewhere in South America and imported into this country"); Tr. III 50 ("Is El Salvador part of the United States? ... At least it wasn't this morning when you got up and read The Washington Post"). See also Tr. IIA 6, 8, 9 (prosecutor's opening statement to the jury mentioning that Mr. xxxxxxxx was known by two names and calling the jury's attention to the fact that one of the names was found on immigration documents bearing Mr. xxxxxxxx's photograph); Tr. IIA 9 (prosecutor's opening statement highlighting that the police officer who arrested Mr. xxxxxxxx was familiar with the hispanic community and commenting on Mr. xxxxxxxx's heritage by telling the jury that "[t]he government's evidence, ... will show that whatever name the defendant goes by, whatever I.D. document you choose to pick, it's the same person"); Tr. II 50 ("Felix Ramos or Jerry or whatever his name is..."); Tr. III 38 ("Mr. Ramos, Mr. xxxxxxxx or whatever his name is...").



The Jury Instruction On Reasonable Doubt

At the conclusion of the case, Judge Harris instructed the jury that the government could satisfy its burden of proving guilt beyond a reasonable doubt as long as the jury had a "strong belief" in the accuseds' guilt. Tr. VIA 83.

ARGUMENT

Summary of Argument

Mr. xxxxxxxx's due process rights were abrogated by the prosecutor's repeated improper references to his ethnic heritage. Throughout the trial the prosecutor emphasized to the jury that Mr. xxxxxxxx was foreign-born. Moreover, he improperly linked Mr. xxxxxxxx's Hispanic heritage to the production of cocaine in South America. This prosecutorial misconduct violated Mr. xxxxxxxx's right to a fair trial.

The trial court unconstitutionally diminished the government's burden of proof by instructing the jury that it could convict Mr. xxxxxxxx if it had "a strong belief" in his guilt. As a matter of law such a diminution in the government's burden of proof can never be harmless error. Moreover, even if, arguendo, such a reduction in the government's burden of proof could be harmless error as a matter of law, on the facts of Mr. xxxxxxxx's case, the error was not harmless.

In allowing two witnesses to testify about statements made to them by out-of-court declarants regarding Mr. xxxxxxxx's nexus to the apartment from which the police recovered the drugs in this case, the trial court erroneously allowed testimony which violated the rule against hearsay thereby abrogating Mr. xxxxxxxx's rights under the confrontation clause.

The trial court improperly permitted the government's cooperating witness to testify about prior bad acts by Mr. xxxxxxxx. She testified 1) that she had seen Mr. xxxxxxxx with drugs several years before any of the charges lodged by the indictment, 2) that Mr. xxxxxxxx "made a living selling drugs," and 3) that Mr. xxxxxxxx was a drug business associate of incarcerated drug-dealer Miguel xxxxxxx.

I. The Prosecutor's Frequent References To Mr. xxxxxxxx's Heritage Deprived Him Of His Right To Due Process Of Law

During his closing argument the prosecutor improperly incited prejudice against Hispanics when he stated, "[c]ocaine is stuff that comes from, not from somebody's back yard here in the District of Columbia but it's made elsewhere in South America and imported into this country." Tr. VIA 21. Similarly during his questioning of one of the government's witnesses the prosecutor had commented, "Is El Salvador part of the United States ? ... At least it wasn't this morning when you got up and read The Washington Post". Tr. III 50.

These comments were the most egregious of a series of similar statements the prosecutor made throughout the trial. He editorialized on the fact that Mr. xxxxxxxx was known by a number of different names and further called attention to his ethnic heritage. For example, in his opening statement, he highlighted that the police officer who arrested Mr. xxxxxxxx was familiar with the hispanic community. Tr. IIA 9. He further reminded the jury about Mr. xxxxxxxx's heritage by telling the jury that "[t]he government's evidence, ... will show that whatever name the defendant goes by, whatever I.D. document you choose to pick, it's the same person." Tr. IIA 9. See also Tr. IIA 6, 8, 9 (prosecutor's opening statement to the jury in which he mentioned that Mr. xxxxxxxx was known by two names and called the jury's attention to the fact that one of the names was found on immigration documents bearing Mr. xxxxxxxx's photograph).

In addition during his questioning of the witnesses the prosecutor effectively testified regarding his view of the different names allegedly used by Mr. xxxxxxxx. See e.g. Tr. II 50 ("Felix Ramos or Jerry or whatever his name is..."); Tr. III 38 ("Mr. Ramos, Mr. xxxxxxxx or whatever his name is...").

In United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990), this Court reversed a conviction for the prosecutor's improper references to the accuseds' heritages. In Doe the government had elicited testimony from a so-called "drug expert" regarding the "'modus operandi' of Jamaican drug dealers." 903 F.2d at 18. This Court noted that, "[d]uring the trial, the prosecutor frequently adverted to 'the Jamaicans' --- in his references to appellants as well as others --- and in his summation to the jury he stressed [the so-called "drug expert's"] theses that Jamaicans had 'taken over' the local drug traffic, and were commandeering the apartments of Washingtonians and using them as preparation and distribution centers." 903 F.2d at 18.

While somewhat less explicit than the improprieties in Doe, the prosecutor's comment in the closing argument in Mr. xxxxxxxx's case, coupled with his repeated references throughout the trial to Mr. xxxxxxxx being foreign-born, crossed "the line of demarcation" of "legally acceptable modes of proof." 903 F.2d at 25. As this Court stated in Doe, "[t]hese statements hardly ... could ... have provided legitimate assistance to the jurors in determining whether [Mr. xxxxxxxx] committed the offenses charged." 903 F.2d at 20. Equivalent to the improprieties in Doe, the prosecutor's comments in Mr. xxxxxxxx's case "focussed on" the "ancestry" of Mr. xxxxxxxx. Id. They were far more than permissible "unembellished reference[s] to evidence of race simply as a factor bolstering an eyewitness identification." 903 F.2d at 25. In sum, the prosecutor's comments "had no bearing upon any claimed defense [by Mr. xxxxxxxx] or other issue[s] at trial, and [were] openly allusive in linking the drug charges to [Mr. xxxxxxxx] solely on the basis of [his] ancestry." 903 F.2d at 20.

In Doe this Court, citing to numerous federal cases on the issue, stated:

Federal courts have long condemned racially inflammatory remarks during governmental summation. Recently, the Supreme Court stated flatly, as at least two circuits had already held, that '[t]he Constitution prohibits racially-biased prosecutorial arguments.' Racial fairness of the trial is an indispensable ingredient of due process and racial equality a hallmark of justice. Appeals to racial passion can distort the search for the truth and drastically affect a juror's impartiality.

903 F.2d at 24-25, quoting, McClesky v. Kemp, 481 U.S. 279, 309, n. 30 (1987) (other footnotes omitted).

Other circuits, too, have recognized the impropriety of appealing to racial biases. See e.g. United States v. Hernandez, 865 F.2d 925, 927-928 (7th Cir. 1989); United States v. Rodriguez, 765 F.2d 1546, 1560 n. 19 (11th Cir. 1985). Cf. Coreas v. United States, 565 A.2d 594, 605 (D.C. 1989) ("impermissible for the prosecutor to argue that 'in this country the jury decides [because t]his comment was clearly calculated to arouse the national bias and sympathy of the jury and was improper"), cert. denied, 112 S.Ct. 167 (1991). (7)

In Rodriguez the Eleventh Circuit held that a prosecutor's arguments that the accused, a Cuban immigrant, had "spit on the country that accepted him," 765 F.2d at 1560 n. 19, was cured by the trial court's instructions. The Eleventh Circuit noted, nonetheless, that the comment, "in conjunction with [the prosecutor's] other references to [the accused's] Cuban nationality [came] perilously close to an attempt to take advantage of any negative feelings the jury may have had toward recent Cuban immigrants." Id. The prosecutor's improper comments in Mr. xxxxxxxx's case, however, went further than taking advantage of any negative feelings the jury may have had toward Hispanics. Like the comments this Court deemed plainly improper and reversible in Doe, the prosecutor's comments in Mr. xxxxxxxx's case equated Mr. xxxxxxxx's heritage with his being a drug dealer.

In Berger v. United States, 295 U.S. 78 (1935), the Supreme Court explained the unique position of a prosecutor in a criminal case:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense a servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

295 U.S. at 88. The prosecutor's comments throughout Mr. xxxxxxxx's trial were more than hard blows; they were foul ones, and exceeded the bounds of securing a conviction by legitimate means.

As in Doe, there were no objections made in Mr. xxxxxxxx's case to the prosecutor's improper arguments during witness examinations nor to his improper remarks during his closing argument. Nonetheless, as in Doe, this Court should find the error plain. 903 F.2d at 26. Moreover, because the error was of constitutional magnitude, the government bears the burden of establishing that the error was harmless beyond a reasonable doubt. Doe, 903 F.2d at 27-28, citing, inter alia, Chapman v. California, 386 U.S. 14 (1967). This is a burden the government cannot meet on the facts of Mr. xxxxxxxx's case. Accordingly, the prosecutor's improper comments during Mr. xxxxxxxx's trial denied him a fair trial and demand a reversal of his conviction and a remand for a new trial.

II. The Trial Court Improperly Defined Reasonable Doubt During The Jury Instructions In A Way Which Reduced The Government's Burden of Proof

During its final instructions to the jury, the trial court defined a reasonable doubt as "a doubt for which you can state a reason, not a doubt based on conjecture. Proof beyond a reasonable doubt is proof that leaves you with a strong belief in the defendant's guilty [sic]." Tr. VIA 83. The trial court continued its instructions by stating:

There are very few things in this world that we know with absolute certainty. In a criminal case, the law does not require proof that overcomes every possible doubt or proof that establishes guilt to mathematical certainty.



The government's burden is to prove beyond a reasonable doubt for each defendant that the crimes charged were committed and that the defendant is the person or one of the persons who committed the crimes.If, based on your consideration of the evidence, you have a strong belief that either or both of the defendants is guilty of one or more of the crimes charged, it is your duty to find him guilty of that crime. On the other hand, if you have a reasonable doubt regarding the guilty [sic] of either or both defendants, then you must find him not guilty.

Tr. VIA 83 (emphasis supplied).

This instruction improperly defined reasonable doubt and repeated the diluted burden of proof twice by stating that the government could meet its burden of proving guilt beyond a reasonable doubt if the jury had a "strong belief" in Mr. xxxxxxxx's guilt. This is the very language which this Court recently held to be erroneous in United States v. Pablo Juan Merlos, et. al, 984 F.2d 1239 (D.C. Cir. 1993), (petition for reh'g filed March 29, 1993). See also United States v. Pinkney, 551 F.2d 1241, 1243-44 (D.C. Cir. 1976) ([T]he reasonable doubt instruction is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence -- that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of our criminal law."' The reasonable doubt instruction is 'indispensable, for it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue[,]"' and because it 'command[s] the respect and confidence of the community in the application of the criminal law.') , quoting, In re Winship, 397 U.S. 358, 363-364, & n. 7 (1970), citing, Coffin v. United States, 156 U.S. 432, 453 (1895).

In Merlos a panel of this Court held that the very instruction given by Judge Harris in this case was erroneous, albeit harmlessly so. Notwithstanding the decision in that case, in which a petition for rehearing has been filed, we submit that, as a matter of law, an erroneous reasonable doubt instruction can never be harmless. Cf. Jackson v. Virginia, 443 U.S. 307, 320 n. 14 (1979) ("failure to instruct a jury on the necessity of proof beyond a reasonable doubt can never be harmless error"). This very issue is now pending before the United States Supreme Court in Sullivan v. Louisiana, 596 So.2d 177 (La.), cert. granted, 113 S.Ct. 373 (1992), (No. 92-5129, argued March 29, 1993).

This Court deemed the erroneous instruction in Merlos harmless "in light of the overwhelming evidence of petitioners' guilt." 984 F.2d at 1240. In that case the accuseds were convicted of an aggregate of four sales to undercover officers and Drug Enforcement Administration agents between April and August, 1990. Accordingly, there was abundant direct evidence regarding the charged offenses from several law enforcement personnel who purchased drugs from Messrs. Merlos and Loriano. By contrast, in Mr. xxxxxxxx's case, the evidence was far from overwhelming. While there were numerous documents introduced linking Mr. xxxxxxxx to the apartment from which the police had seized the drugs in this case, he was never seen in actual possession of any drugs, nor even in the presence of any drugs. Indeed, on the night the search warrant was executed, when Dedios went to Apartment 603 at the behest of the search warrant team before they executed the warrant, Ricardo Jimenez and Carlos xxxxxxxx, and not Mr. xxxxxxxx, were in the apartment shortly before. In sum, the jury instruction given by the trial court in Mr. xxxxxxxx's case which allowed the jury to find that the government had met its burden of proof merely if the jury had a "strong belief" in Mr. xxxxxxxx's guilt, well could have "meant the difference between acquittal and conviction." 984 F.2d at 1242, citing United States v. Martin, 475 F.2d 943, 949 (D.C. Cir. 1973).

In Cage v. Louisiana, U.S. , 111 S.Ct. 328 (1990), the Supreme Court recently reaffirmed the importance of the government's burden to prove guilt beyond a reasonable doubt. See also Johnson v. Louisiana, 406 U.S. 356, 359 (1972); In re Winship, supra. Similarly, this Circuit has recognized that "[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." United States v. Alston, 551 F.2d 315, 321 (D.C. Cir. 1976) (footnotes omitted). Accordingly, the trial judge's instruction that allowed the jury to convict Mr. xxxxxxxx if they had a "strong belief" in his guilt cannot be deemed harmless beyond a reasonable doubt. Alston, 551 F.2d at 320. Cf. United States v. Hayward, 420 F.2d 142, 145 (D.C. Cir. 1969) ("... before ... a federal constitutional error will in fact be held harmless, 'the court must be able to declare a belief that it was harmless beyond a reasonable doubt'"), citing, Chapman v. California, 386 U.S. 18, 24 (1967).

III. The Trial Court Erroneously Admitted Hearsay To Establish That Mr. xxxxxxxx Resided In The Apartment From Which The Police Recovered The Drugs In This Case

The trial court erroneously allowed two witnesses to testify about out-of-court statements by third parties in order to establish that Mr. xxxxxxxx resided in the apartment from which the police recovered the drugs. First, the government's cooperating witness, Dedios, testified that when she went to Apartment 603 before the police executed the search warrant, Jimenez told her that Jerry had left the apartment two hours before and would soon return. Tr. V 39-40. That testimony was hearsay because it was the statement of a third party, i.e., Jimenez, offered for the truth of the matter asserted, i.e. that in fact Jerry had left two hours before and would be back soon.

Second, Officer Kevin O'Connell testified that Officer Dale Sutherland had shown him a photograph of Mr. xxxxxxxx (Government's Exhibit 3) and had told him that Mr. xxxxxxxx resided in Apartment 603 and was the person for whom the police were looking. Tr. IIIA 74. This, too, was hearsay because Officer Sutherland's out-of-court statement that Mr. xxxxxxxx resided in Apartment 603 was offered for the truth of the matter asserted, i.e. that Mr. xxxxxxxx did reside there.

Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." In Mr. xxxxxxxx's case the statements were the "oral assertion[s]", see Fed. R. Evid. 801(a), made by 1) Jimenez when Dedios went to apartment 603, that Mr. xxxxxxxx had just left and would return, and 2) Officer Sutherland to Officer O'Connell that Mr. xxxxxxxx was the person who resided in Apartment 603. These statements were hearsay because they were verbal assertions made other than by Dedios and O'Connell while testifying at the trial and they were offered for the truth of the matters asserted, i.e., that Mr. xxxxxxxx, in fact, had just left and would return shortly (Dedios/Jimenez), and that he lived in Apartment 603 (O'Connell/Sutherland). Cf. United States v. Brown, 921 F.2d 1304 (D.C. Cir. 1990) (trial court erred in admitting hearsay testimony by police officer that informants had told police officer that they could identify the accused based upon their prior drug dealings with him).

In a case lacking much direct evidence linking Mr. xxxxxxxx to the contraband seized by the police, (8) it was error to have allowed Dedios and Officer O'Connell to testify about what out-of-court declarants had told them. Mr. xxxxxxxx was not in Apartment 603 when the police executed the warrant. The hearsay evidence regarding Sutherland's statement to O'Connell that the person depicted in Government's Exhibit 3 (a photograph of Mr. xxxxxxxx) resided in Apartment 603 was exacerbated by O'Connell's subsequent testimony that when the door opened he "recognized [Mr. xxxxxxxx as] the man from the photograph." Tr. IIIA 77. See also Tr. IIIA 77-78 ("From the photograph that Officer Sutherland had shown me ... that individual was standing at the door"). The government also attempted to establish Mr. xxxxxxxx's nexus to the apartment from documents, papers, and photographs recovered from the apartment. See Note 3, supra. Prior to the execution of the search warrant, the only individuals seen in Apartment 603 by any government witnesses were persons other than Mr. xxxxxxxx who Dedios had seen when she went there. Tr. V 39-40.

The Supreme Court has acknowledged that "hearsay rules and the Confrontation Clause [of the Sixth Amendment] are generally designed to protect similar values." California v. Green, 399 U.S. 149, 155 (1970). In Green the Supreme Court explained that

[T]he particular vice that gave impetus to the confrontation claim was the practice of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in face-to-face encounter in front of the trier of fact.

399 U.S. at 156. It is precisely this vice which occurred in Mr. xxxxxxxx's trial. By allowing Dedios and Officer O'Connell to testify about what Jimenez and Sutherland, respectively, had claimed regarding Mr. xxxxxxxx's nexus to the apartment, Mr. xxxxxxxx was denied the opportunity to challenge the persons who made the claims regarding his connection to the apartment.

The rationale of the prohibition against hearsay is that the party against whom it is being offered is unable to cross-examine the declarant. As explained in the seminal text on evidence written by Professor Wigmore:

The Theory of the Hearsay rule ... is that, when a human utterance is offered as evidence of the truth of the facts asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination.

6 Wigmore, Evidence, 1766 at 177-178 (3d ed. 1940). In this case, Jimenez' credibility, as well as Sutherland's, were placed at issue since it was they who made the statements about which the Dedios and Officer O'Connell testified. Neither Jimenez nor Sutherland, however, were witnesses at the trial. Accordingly, neither was subject to confrontation and the jury could not rationally determine whether to credit their out-of-court assertions regarding Mr. xxxxxxxx's nexus to the apartment.

The importance of cross-examination is well recognized. As explained by the Supreme Court in Davis v. Alaska, 415 U.S. 308, 316 (1974):

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e. discredit, the witness ... The introduction of a prior crime [by the witness] is ... a general attack on the credibility of the witness. A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness ... is 'always relevant as discrediting the witness and affecting the weight of his testimony.'

citing 3A J. Wigmore, Evidence 940, p. 775 (Clayborn rev. 1970). In Mr. xxxxxxxx's case, allowing Dedios to testify to the hearsay statement of Jimenez indicating that Mr. xxxxxxxx was linked to the apartment searched by the police, and allowing Officer O'Connell to testify that Sutherland had said Mr. xxxxxxxx resided in the apartment, precluded Mr. xxxxxxxx from discrediting the allegations made by Jimenez and Sutherland and exploring their "possible biases, prejudices, or ulterior motives" in connecting Mr. xxxxxxxx to the apartment the police searched.

In a case strikingly similar to Mr. xxxxxxxx's, the Supreme Court held that it was reversible error for the trial court to have allowed a government witness to testify that an unidentified informant had made an out-of-court statement that the accused lived at the apartment where the police found the heroin at issue. Moore v. United States, 429 U.S. 20 (1976) (per curiam). In Moore the police executed a search warrant on an apartment and found Mr. Moore lying on the living room floor. They also found another person seated on a sofa in that same room. Bags containing heroin were found atop and beneath the coffee table and the police seized them as well as various items of narcotics paraphernalia. Although, unlike Mr. xxxxxxxx's case, the police found no indicia of Moore's ownership of the apartment when they searched the apartment, unlike Mr. xxxxxxxx, Moore himself was within the premises at the time the search occurred. The Supreme Court held, nonetheless, that the "out-of-court declaration that the apartment in question was 'Moore's apartment,' ... was hearsay and thus inadmissible on the issue of Moore's guilt." 429 U.S. at 21. Likewise, the testimony by Dedios and Officer O'Connell regarding the out-of-court statements by Jimenez and Sutherland, respectively, was hearsay and thus was inadmissible on the issue of Mr. xxxxxxxx's guilt. Accordingly, his conviction should be reversed and the case should be remanded for a new trial. The inability to cross-examine Jimenez and Sutherland was a violation of Mr. xxxxxxxx's constitutional rights by allowing hearsay testimony by Dedios and O'Connell to have been elicited.

Both the First and Second Circuits have reversed convictions for similar erroneous admissions of hearsay testimony. In United States v. Tussa, 816 F.2d 58 (2d Cir. 1987), on remand 723 F.Supp. 888 (E.D.N.Y. 1989) the Second Circuit held that testimony by a government witness that a confidential informant told the witness that one of the co-defendants had brought the drugs from the apartment building to a waiting car was reversible error where the government had no direct evidence linking the co-defendant to the drugs later recovered from the car. Similarly, in Mr. xxxxxxxx's case, the government had only testimony that Mr. xxxxxxxx was among the three people who returned to the apartment, together with various documents and personal papers recovered from the apartment to link him to the drugs found in the apartment or on the stairwell. They had no direct evidence that he possessed the drugs found in Apartment 603. He was not in actual possession of the drugs and was not even in the apartment at the time the police executed the warrant. There was also no evidence that his fingerprints were found on any of the items the police recovered from Apartment 603. Thus, as in Tussa, the trial court here committed reversible error in admitting the hearsay testimony that the accused had just left the apartment which the police subsequently searched. See also United States v. Ocampo, 650 F.2d 421, 427-428 (2d Cir. 1981) (reversing conviction for admission of hearsay testimony regarding identification of accused because that testimony violated his Sixth Amendment right to confront the witnesses against him); United States v. Ariza-Ibarra, 605 F.2d 1216, 1222 (1st Cir. 1989) (reversing conviction for erroneous admission of hearsay testimony and holding that accused is "entitled to have [his] guilt or innocence determined by the jury on the basis of evidence from witnesses that [he] had the opportunity to confront at trial"), cert. denied 454 U.S. 895 (1981).

Although no objection was made by trial counsel to either Dedios' hearsay testimony or to O'Connell's hearsay testimony, the error was plain because the evidence was clearly inadmissible under "settled law." See United States v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990) (citation omitted). Moreover, the trial court's error was of constitutional magnitude because the admission of the hearsay evidence violated Mr. xxxxxxxx's confrontation rights. Therefore, the error undermined the fundamental fairness of the trial and contributed to a "miscarriage of justice." See United States v. Young, 470 U.S. 1, 16 (1985).

IV. The Trial Court Improperly Allowed The Government's Cooperating Witness To Testify About Prior Bad Acts By Mr. xxxxxxxx

Over defense objection, Tr. V 31, the government's cooperating witness testified that Mr. xxxxxxxx was a friend of a drug dealer named Miguel Profeta, who was "in jail." Tr. V 30-31. She also testified that Mr. xxxxxxxx "did business with" Profeta and that the nature of the business was drug-related. Tr. V 31. This testimony was exacerbated by Dedios' earlier testimony that Mr. xxxxxxxx made a living selling drugs and made cocaine deals with Dominicans, and that she had seen him with drugs in his hands. Tr. V 23-25. (9) Such testimony ran afoul of the prohibition that evidence of other crimes is not admissible "to show the likelihood that, having once fallen into sin, a second slip is likely." United States v. James, 555 F.2d 992, 999 (D.C.Cir. 1977). Indeed, the testimony was evidence of Mr. xxxxxxxx's general bad character and membership in the "drug underworld involved in all sorts of skullduggery," United States v. Shelton, 628 F.2d 54, 57 (D.C. Cir. 1980), a purpose strictly prohibited by Rule 404(b) of the Federal Rules of Evidence. Cf. United States v. Wright, 901 F.2d 68 (7th Cir. 1990) (conviction reversed where, in violation of Rule 404(b), trial court erroneously admitted tape recorded telephone conversation in which accused boasted of being a drug dealer). The sole inference which could be drawn from Dedios' testimony was the improper one that since Mr. xxxxxxxx had done business with incarcerated drug dealer Miguel Profeta and had been involved in drug dealing on other occasions, he was the one responsible for the drugs the police recovered from Apartment 603 on December 20, 1990. Thus, as in Shelton, the government, "by innuendo, ... painted a picture of [Mr. xxxxxxxx] as [a] seedy and sinister character[]." 628 F.2d at 56.

Dedios' testimony gave the government the links it otherwise did not have connecting Mr. xxxxxxxx to the drugs seized from Apartment 603 on December 20-21, 1990. Absent her testimony the government had no evidence regarding the period between October and December, 1990, which formed the basis for the first count of the indictment. Moreover, notwithstanding the documents connecting Mr. xxxxxxxx to Apartment 603, it was Ricardo Jimenez and Carlos xxxxxxxx who were inside the apartment immediately prior to the execution of the search warrant. Thus, without Dedios' testimony about Mr. xxxxxxxx, it was xxxxxxxx and Jimenez who had a greater immediate nexus to the apartment on the night the contraband was recovered from it.

Moreover, the impropriety of this testimony was exacerbated during the prosecutor's closing argument when he stated:

Is there evidence in this case that this was the first and only time that the man in the white shirt and the tie [Mr. xxxxxxxx] was seen in the company of his co-defendant? No. Susana Dedios, ex-girlfriend of the man in the black tuxedo [Mr. xxxxxxxx], had seen the man in the white shirt and tie a few times in that building in the company of the man she knows as Jerry, since October. She said, when Jerry moved in to that apartment, she asked him again, what's he doing, and he said that he's still selling drugs, only he's not going to New York to get it himself anymore, he's using couriers. Actually, I think she said carriers.She didn't have the greatest command of English language, but I think you get the message that her old boyfriend is confiding in her what he's doing and that things are a little simpler now for him now [sic], because he's got runners coming in from New York with the cocaine. And he doesn't have to bother himself by using other people with respect to airplane or trains or whatever, to go to New York and buy the drugs for him. They bring it right here to him.

Tr. VIA 15-16 (emphasis supplied). This argument, as well as the testimony upon which it was based, urged the jury to conclude that, although Mr. xxxxxxxx was not present at the time the police seized the drugs from Apartment 603, because he was a drug dealer, associated with one and had dealt drugs in the past, the drugs seized by the police were constructively possessed by him. As the Seventh Circuit explained in Wright, such "evidence of other crimes ... may not be used to prove a person's bad character or his propensity to commit crimes in conformity with that character." 901 F.2d at 69. See also United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980) ("It is fundamental to American jurisprudence that 'a defendant must be tried for what he did, not for who he is.'") (citation omitted). It was precisely this impermissible purpose for which the cooperating witness' testimony was introduced in this case and for which the prosecutor argued it in his closing argument. Accordingly, as this Court did in Shelton, it should reverse this conviction and remand Mr. xxxxxxxx's case for a new trial.

In Shelton, this Circuit recognized that evidence of other crimes "is never admissible unless it is 'necessary' to establish a material fact ..." Shelton, 628 F.2d at 56. Dedios' testimony 1) that she had seen Mr. xxxxxxxx with drugs (an incident which the supplemental record and trial counsel's objection, Tr. V 25-26, make clear occurred years before any of the charges lodged by the indictment); 2) that Mr. xxxxxxxx "made a living selling drugs;" and 3) was an associate of Miguel Profeta did not "establish ... material fact[s]." It is well-settled that in order for similar act evidence to be admissible, it must be relevant to disputed issues in the case. See United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978) ("When [an accused] denies participation in the act or acts which constitute the crime, intent is not a material issue for the purpose of applying Rule 404(b)); United States v. Silva, 580 F.2d 144 (5th Cir. 1978) (where defense was mistaken identity, evidence of subsequent misconduct was improper; "[Accused] who denies participation in an act raises no discrete issue of intent and if the act be proven the intent will usually be inferred"). In Mr. xxxxxxxx's case, Dedios' testimony about his affiliation with Miguel Profeta and her claim that Mr. xxxxxxxx made a living selling drugs was not relevant to disputed issues in the case.

Dedios' testimony was not relevant to material facts because motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident were not genuine contested issues in the case. Mr. xxxxxxxx's trial strategy appeared to be simply to put the government to its burden of proof rather than to contest any particular aspect of the government's case to which the prior bad act evidence possibly might have been relevant. Mr. xxxxxxxx presented no evidence on his own behalf, either by calling witnesses or by testifying himself. In short, "there was no trial defense." United States v. Karas, 950 F.2d 31, 37 (1st Cir. 1991). Mr. xxxxxxxx's defense was that of general denial as demonstrated by his counsel's closing argument. Tr. VIA 23-41. In Karas the First Circuit deemed the introduction of similar act evidence to be error, "[w]hen a defendant chooses not to testify and puts the government to its proof ..." 950 F.2d at 37.

Karas was a case, like Mr. xxxxxxxx's, involving conspiracy charges. As in Mr. xxxxxxxx's case, in Karas, the similar act evidence was a statement by the accused to a cooperating witness regarding the accused's drug dealing. 950 F.2d at 35-36. The First Circuit held that the admission of such testimony by the cooperating witness was error. 950 F.2d at 36-37. (10) See also United States v. Yeagin, 927 F.2d 798 (5th Cir. 1991); United States v. Mothershed, 859 F.2d 585, 588 (8th Cir. 1988) (reversing conviction for trial court's failure to exclude similar act evidence and acknowledging that "admission of prior bad acts under Fed. R. Evid. 404(b) requires that the evidence be relevant to a material issue, clear and convincing, more probative than prejudicial, and similar in kind and close in time to the crime charged") (footnote omitted); United States v. Lynn, 856 F.2d 430, 435 (1st Cir. 1988) (reversing conviction for, inter alia, erroneous admission of similar act evidence in drug conspiracy case where there was "nothing to suggest that [the] previous offense '[led] in a progression' to the charged offense); United States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984) (reversing conviction for erroneous admission of prior bad act evidence and noting that that evidence did "not tend to show a unique design or plan that would help indirectly to establish" the accused's guilt of the charged offense and that there was "insufficient similarity" between the prior incident and the charged incident "for any inference to be drawn regarding the defendant's responsibility for the later acts"); United States v. Ezzell, 644 F.2d 1304, 1306 (9th Cir. 1981) (reversing conviction for erroneous admission of similar act evidence); United States v. Manafzadeh, 592 F.2d 81 (2d Cir. 1979); United States v. Herman, 589 F.2d 1191, 1198 (3rd. Cir. 1978) (reversing conviction for failure to exclude similar act evidence that was more prejudicial than it was probative), cert. denied 441 U.S. 913 (1979).

In Michelson v. United States, 335 U.S. 469 (1948), the Supreme Court recognized the inadmissibility of "any kind of evidence of a defendant's evil character to establish a probability of his guilt." 335 U.S. at 475. It explained:

The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.335 U.S. at 475-476.

The other crimes evidence in this case was no less improper for having been general rather than specific instances of misconduct. Indeed, in Shelton, this Court specifically stated:

[Similar act] evidence ... is not rendered more acceptable by the fact that it is less focused and more subtly adduced than traditional 'other crimes' evidence. Quite the contrary. Where the 'other crime' alleged is not specified, it is more difficult for the defendant to refute the charge or to demonstrate its insignificance. Where the evidence is presented by innuendo, it is less likely that the jury will guard against manipulation. Therefore, the likelihood that a jury will draw an improper inference is even greater ... than it is in the traditional 'other crimes' case. 28 F.2d at 57.

Even if similar act evidence meets the relevance requirement, to be admissible, it must also be more probative than it is prejudicial. Fed. R. Evid. 403. See United States v. Foskey, supra. The cooperating witness' testimony in Mr. xxxxxxxx's case, even if, arguendo, relevant, did not meet the second prong necessary for it to have been admissible. "[E]vidence of a defendant's prior 'bad acts' is excluded when its sole tendency is to prove that a person is of bad character and thus predisposed to commit the crime for which he is on trial." 636 F.2d at 523. This Court further stated:

Even if the [other crimes evidence] were marginally relevant to one of the issues listed in Rule 404(b), it should ...[be] excluded in the second stage of the analysis of admissibility under that rule. Bad acts evidence must satisfy Federal Rule of Evidence 403;...[Bad act evidence] should...be [] ruled inadmissible on the ground that its minimal relevance [is] `substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury'.636 F.2d at 525 (citations omitted). Here Dedios' testimony 1) that she had seen Mr. xxxxxxxx with drugs several years before any of the charges lodged by the indictment, 2) that Mr. xxxxxxxx "made a living selling drugs," and 3) that Mr. xxxxxxxx was a drug business associate of incarcerated drug-dealer Miguel Profeta was devastating and accordingly this Court should reverse Mr. xxxxxxxx's conviction and remand his case for a new trial.



CONCLUSION

Even if this Court does not find any single error sufficient, in and of itself, to warrant reversal of Mr. xxxxxxxx's conviction in this case, the aggregate of the errors surely mandate that Mr. xxxxxxxx's conviction be reversed and his case remanded for a new trial.

Respectfully submitted,


Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Santos xxxxxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500





CERTIFICATE OF SERVICE

This is to certify that on this day of April, 1993, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand-delivery.

Santha Sonenberg

1. Mr. xxxxxxxx was also charged alone with one count in which it was alleged that on December 21, 1990 he unlawfully possessed with the intent to distribute over five grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii) and 18 U.S.C. 2. The government dismissed the possession with the intent to distribute charge in the fourth count of the indictment and, on that count, proceeded against Mr. xxxxxxxx only on the "lesser included offense" of simple possession of cocaine base. Tr. II 16. Mr. xxxxxxxx was acquitted by the jury on all counts.

2. "Tr. I" refers to the transcript of the motions hearing of July 2, 1991. "Tr. II" refers to the transcript of the proceedings of August 13, 1991. "Tr. IIA" refers to the transcript of the opening statements of counsel on August 13, 1991. "Tr. III" refers to the proceedings on the morning of August 14, 1991. "Tr. IIIA" refers to the proceedings on the afternoon of August 14, 1991. "Tr. IV" refers to the proceedings of August 15, 1991. "Tr. V" refers to the proceedings of August 16, 1991. "Tr. VI" refers to the proceedings of August 19, 1991. "Tr. VIA" refers to the jury instructions and closing arguments of August 19, 1991.

3. According to the government's evidence the following items were seized: a tissue holder with the name "Jerry" crocheted on the side, Government's Exhibit 19, found on top of the television set in the living/dining room area, Tr. IV 38; a photo album containing photographs of Mr. xxxxxxxx and with the name "Felix" on it, Government's Exhibit 21, from the larger hall closet, Tr. IV 39; a photo frame, Government's Exhibit 22, that had contained a photograph of Mr. xxxxxxxx (Government's Exhibit 3), recovered from the nightstand next to the bed, Tr. IV 40; a passport in the name of Santos Romero xxxxxxxx containing a photograph of Mr. xxxxxxxx, Government's Exhibit 23(a), found on a shelf near the duct tape in the closet, Tr. IV 42; a Virginia driver's license with Mr. xxxxxxxx's picture in the name of Santos Romero xxxxxxxx, Government's Exhibit 23(b), found on a shelf in the closet, Tr. IV 42; a resident alien card in the name of Salvador De La Rosa, Government's Exhibit 23(d), with a photograph of Mr. xxxxxxxx pasted onto it, also found on a shelf in a closet, Tr. IV 42-47; an envelope marked "passport photos," Government's Exhibit 29(e), containing the same photos as those on the resident alien card, Tr. IV 43-45; a photograph of Mr. xxxxxxxx, Government's Exhibit 25(a), found on the nightstand next to the bed in the bedroom, Tr. IV 50; rent receipts in the name of "Felix Ramos," Government's Exhibit 25 (b) and (c), also found on the nightstand, Tr. IV 50; a December 17, 1990 video club receipt in the name of "Felix Ramos," Government's Exhibit 25(d), also found on the nightstand, Tr. IV 50-51; a November 9, 1990 telephone installation receipt in the name of Felix Ramos, Government's Exhibit 25(e), also found on the nightstand near the bed, Tr. IV 50-51; a December 1, 1990, pager receipt in the name of Santos xxxxxxxx, Government's Exhibit 25(f), also found on the nightstand, Tr. IV 50, 51-52; a phone bill receipt in the name of "Felix Ramos" for Apartment 603 at 3300 Sixteenth Street, N.W., Government's Exhibit 25(g), also found on the nightstand near the bed, Tr. IV 50, 52-53; a utility bill, Government's Exhibit 26, found near the scale in the kitchen cabinet, Tr. IV 53; color photographs of Mr. xxxxxxxx, Government's Exhibit 27(a)-(f), located on the nightstand near the bed, Tr. IV 53-54; a March 1, 1990 pager receipt in the name of Santos xxxxxxxx, Government's Exhibit 28(f), Tr. IV 54; an envelope addressed to Santos R. xxxxxxxx at 2013 New Hampshire Avenue, N.W., Apartment 609, Government's Exhibit 28(h), Tr. IV 54-55; an envelope addressed to Felix Ramos at 2013 New Hampshire Avenue, N.W., Apartment 611, Government's Exhibit 28(i), Tr. IV 55; a January 7, 1989, permission report for the use of dealer tags, in the name of Felix M. Ramos, Government's Exhibit 28(j), Tr. IV 55-56; a June 1, 1989, rental car receipt in the name of Santos xxxxxxxx with an Alexandria, Virginia address, Government's Exhibit 28(k), Tr. IV 56; a Virginia certificate of title for Santos R. xxxxxxxx at 604 Notavene, Government's Exhibit 29(c), Tr. IV 56-57; an envelope from the American Security Bank addressed to Santos xxxxxxxx, Government's Exhibit 29(d), Tr. IV 57; a receipt for auto parts in the name of Jerry xxxxxxxx signed by Santos xxxxxxxx, Government's Exhibit 29(f), Tr. IV 57-58; a June 1, 1989 car rental receipt for Santos xxxxxxxx at a Milan Drive address, Government's Exhibit 29(g), Tr. IV 58; a birth certificate, Government's Exhibit 29(h), Tr. IV 58-59.

4. Although there was testimony from police officers that Mr. xxxxxxxx was one of the three individuals who came to the door while the police were waiting in the apartment, Tr. III 64, Tr. IIIA 77-78, the lights in that apartment were kept off, Tr. IIIA 16-17, and there was no light shining on the face of the three who came to the apartment door. Tr. IIIA 25. Officer Cunningham, nonetheless, claimed that he could see the faces of all three men at the door. Tr. III 64, Tr. IIIA 25-26. See also Tr. IIIA 78 (Officer O'Connell's in-court identification of Mr. xxxxxxxx).

5. Before the jury the government's cooperating witness testified that she once had seen Mr. xxxxxxxx with drugs in his hand. Tr. V 25. As Mr. xxxxxxxx's trial counsel argued below, Tr. V 25-27, however, and as the supplemental record makes clear, Dedios saw Mr. xxxxxxxx with drugs three years before in an automobile. Dedios' April 16, 1991 Grand Jury Testimony at 3-4. See also Tr. V 23 (Dedios dated Mr. xxxxxxxx three years before).

6. "Jerry" was among the names the government claimed Mr. xxxxxxxx used. See Tr. II 48 (in-court identification of Mr. xxxxxxxx as "Jerry"); Tr. II 50 ("Felix Ramos or Jerry or whatever his name is..."); Tr. II 58 (Government's Exhibit 4A, Felix Ramos' driver's license with a photograph of Mr. xxxxxxxx, known to Ana Lopez as "Jerry"); Tr. III 47-50 (regarding identification documents found in apartment 603); Tr. VI 5 (prosecutor's closing argument referring to "Defendant Number One" as "Felix Ramos or Santos Romero xxxxxxxx, or Salvador Dela Rosa or Jerry xxxxxxxx").

7. United States v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990) (per curiam) urged "as much commonality between [the District of Columbia Court of Appeals] and the [Court of Appeals for the District of Columbia Circuit] as is possible." Accordingly, the District of Columbia Court of Appeals' decision in Coreas should be accorded considerable weight by this Court in deciding this issue.

8. Notwithstanding that the government introduced evidence that keys fitting 3300 Sixteenth Street, N.W. had been found in a jacket they recovered after chasing the three fleeing men down the stairs, Ana Lopez testified that there were 164 units in 3300 Sixteenth Street, N.W. and that each apartment was allotted "at least two keys," Tr. II 65, and that she could not be sure to whom she had issued the keys introduced as Government's Exhibit 8. Tr. II 64-65. Accordingly, the government's theory that Apartment 603 was Mr. xxxxxxxx's apartment was undercut. Moreover, Officer Cunningham admitted on cross-examination that Mr. xxxxxxxx had not been seen dropping the jacket from the pocket of which the keys were recovered. Tr. IIIA 13.

9. Before the government's cooperating witness testified, government counsel had given the trial court a copy of her testimony before the grand jury and had alerted the trial court to a potential 404(b) issue. Tr. V 4-8. The trial court determined that a statement by Mr. xxxxxxxx to Dedios that he was still selling drugs without going to New York to get them was "admissible under every area of the law ... to the extent it is 404(b) evidence for purposes such as proof of intent and what not." Tr. V 9-10. Misstating the law the trial court then summarily stated, "The presumption of admissibility under 404(b) is quite reinforced by Rule 403 and it may be excluded only if the probative value is 'substantially outweighed by the danger of unfair prejudice.' I do not find that its probative value is substantially outweighed." Tr. V 10. Over objection, Tr. V 25-29, the trial court erroneously permitted Dedios to testify that she had seen Mr. xxxxxxxx with drugs in his hands, when that was not within Apartment 603 and had occurred some years before.

10. In Karas, the First Circuit deemed the erroneous admission of similar act evidence to be harmless beyond a reasonable doubt because it "did not loom large at trial." 950 F.2d at 37-38. It noted that "[c]ompared to the evidence that was introduced on the ... conspiracy, it was a drop in the bucket." 950 F.2d at 38. The same cannot be said in Mr. xxxxxxxx's case. In Karas the government's evidence included the testimony of two co-conspirators who testified against the accused as well as evidence of "hotel records, airline tickets, flight schedules, and other evidence that [Karas] was a courier in a conspiracy whose main purpose" was the transportation of drugs. 950 F.2d at 35. In Mr. xxxxxxxx's case the evidence was not as strong and was primarily circumstantial.