UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No.





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxxxxxxxx, Defendant-Appellant,



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





REPLY BRIEF FOR APPELLANT

Summary of Argument

In the trial court the government refused to enter into a stipulation with the defense regarding knowledge and intent, the sole purposes for which the three prior bad acts were introduced. In the trial court the government gave no reason for its refusal to stipulate (1) and on appeal it is telling that the government offers no justification whatsoever for its refusal to accept Mr. xxxxxxx' stipulation as to intent and knowledge. Instead, the government merely asserts that it is "axiomatic" that parties are not required to stipulate, especially regarding "issues that affect a party's strategy in presenting its case." Gov't Br. at 23. Yet the government points to no legitimate "strategy" that would call for it to present evidence of intent and knowledge through prior bad acts when it could have had a stipulation to that effect. That is because the only strategy here was not a legitimate one: The government was desperate to keep the dead "intent" issue alive because it represented the only legal hook the government had to get before the jury the prejudicial evidence that Mr. xxxxxxx was a drug dealer with three prior arrests.

The government cites to various cases for the proposition that it could not have been forced to stipulate, but never dealt effectively with the cases cited by Mr. xxxxxxx in his opening brief, holding that an offer to stipulate in the context of other crimes evidence, rendered that evidence inadmissible. Moreover, the government's brief fails to comprehend the distinction between not contesting an element of an offense and affirmatively removing it from the case by stipulating to it.

Even if, arguendo, this Court finds that Mr. xxxxxxx' concession and offer to stipulate did not render knowledge and intent undisputed and immaterial, it clearly turned the probative-prejudice calculus upside down. By eliminating the government's need to prove intent or knowledge, Mr. xxxxxxx' concession deprived the prior bad act evidence of any probative value whatsoever, leaving behind only its devastating prejudicial impact and requiring its exclusion.

The government makes much in its opposition of the fact that it did not argue the prior bad acts to the jury. Gov't Br. at 15, 16, 17, 29. But the government's silence only proves Mr. xxxxxxx' point: The government had nothing to say about those acts because, with intent and knowledge out of the case, the prior bad acts were not relevant to any legitimate issue in the case. The government certainly knew it could not argue the only issue to which they were relevant: Mr. xxxxxxx' bad character and propensity to deal drugs. The jury was left to make that leap itself.

The jury hardly needed to be reminded of the damning evidence about Mr. xxxxxxx' past. Nearly one half of the government's nine witnesses testified to events other than those for which Mr. xxxxxxx was on trial. The cumulative effect of three prior bad acts heightened the prejudice to Mr. xxxxxxx. The multiplicity of incidents and the fact that the jury knew that each had resulted in an arrest implied to the jury that Mr. xxxxxxx had "gotten away with" the three prior bad acts, as he was at liberty on Fifth Street, N.W. in February, 1991 to be arrested. This well could have impelled the jury to convict Mr. xxxxxxx to ensure that he did not "get away" this time.

By saturating the trial with events for which Mr. xxxxxxx was not being tried, the jury's focus was shifted from the weaknesses in the government's evidence against him for the February, 1991 incident, to a view of Mr. xxxxxxx as a habitual drug dealer, who needed to be put away.

Finally, with respect to the documents issues, the government misunderstands the nature of the "buy report" and cites cases in support of its admissibility, which deal with law enforcement documents that do not relate to observations made at the scene of a crime or in connection with apprehension of a suspect, as the "buy report" did. For the trial court to permit the jury to have the "buy report" back in the jury room with them, but preclude them from having the transcript of the undercover officer's prior sworn testimony, which was inconsistent with his trial testimony, rendered the trial even more unfair to Mr. xxxxxxx.

I. The Erroneous Admission Of The 404(b) Evidence

A. Knowledge/Intent And The Significance of Stipulations

Appellate courts will not disturb a trial court's ruling admitting similar act evidence unless the case was close or the issue was central. United States v. Miller 895 F.2d 1431, 1438 (D.C. Cir. 1990), citing, United States v. Hernandez, 780 F.2d 113, 119 (D.C. Cir. 1986). In this case, however, the case was close and the issue of the admission of the three prior bad acts was central. The only witness who identified Mr. xxxxxxx as the go-between between Farmer and Moses, was Farmer, and his credibility was attacked as the prosecutor conceded at trial. See A-200 (prosecutor stated that defense had been effective in suggesting that undercover officer had fabricated). The evidence of the three prior drug arrests, was so overwhelmingly prejudicial that it completely shifted the focus of the trial from whether the officer's identification of Mr. xxxxxxx on February 27, 1991 was valid, to whether Mr. xxxxxxx was a bad person with a history of drug dealing who deserved to be in jail.

The government argues that the three prior bad acts by Mr. xxxxxxx were relevant to both Mr. xxxxxxx' intent and to his knowledge. The government's argument fails to acknowledge that for evidence to be admissible under Rule 404(b), the first hurdle that the government must meet is that the evidence must be "relevant to a material issue." United States v. Dobynes, 905 F.2d 1192, 1195 (8th Cir.) (emphasis supplied), cert. denied, 498 U.S. 877 (1990) cited in Gov't Br. at 25. Because Mr. xxxxxxx conceded and offered to stipulate to knowledge and intent, the evidence of three prior bad acts by Mr. xxxxxxx was not relevant to a material disputed fact and should not have been admitted. Huddleston v. United States, 485 U.S. 681, 685-686 (1988) ("Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct ... The threshold inquiry a court must make before admitting similar acts under Rule 404(b) is whether that evidence is probative of a material issue other than character.") (emphasis supplied. See also United States v. Miller, 895 F.2d 1431, 1438 (D.C. Cir.) (testimony must "be relevant to [a] disputed question") (emphasis supplied), cert. denied, 498 U.S. 825 (1990). The government relies on the Supreme Court's opinion in Estelle v. McGuire, U.S. , 112 S.Ct. 475 (1991), to support its contention that it did not have to accept Mr. xxxxxxx' stipulation that the person who handed Farmer the drugs had the intent to distribute the drugs found within the Jetta. Gov't Br. at 23. Estelle is distinguishable from Mr. xxxxxxx' case. Estelle did not involve a situation in which the accused stipulated or affirmatively removed an issue from the case. Rather, at most, it involved a "decision not to contest an essential element of the offense." 112 S.Ct. at 481.

In Estelle the issue was whether prior instances of child abuse could be used by the prosecution to establish a battered child syndrome recognized by state law. Although the defendant in Estelle did not affirmatively argue that his daughter's death had been an accident, he never conceded that her death was not an accident. Only the latter would have affirmatively removed any issue of the child's death having been accidental from the jury's consideration.

There is a fundamental difference between actually conceding an issue and merely not contesting it. The former relieves the prosecution from having to prove an element, while the latter does not. Cf. United States v. Rivera, 872 F.2d 507, 512 (1st Cir.) (recognizing the difference between not disputing an element and conceding it), cert. denied, 493 U.S. 818 (1989); United States v. Holman, 680 F.2d 1340, 1349 (11th Cir. 1982) (recognizing the difference between "not actively disput[ing] the existence" of intent and "formally stipulating to the elimination of intent as an issue at the trial" and thereby "affirmatively tak[ing] the issue of intent out of the case"); United States v. House, 524 F.2d 1035, 1040 (3rd Cir. 1976) ("A mere assumption, without evidentiary support or a stipulation of record, does not relieve the government of proving an essential element...").

In Mr. xxxxxxx' case he conceded intent; he did not merely fail to contest it. (2) In contrast, in Estelle the accused did not agree affirmatively that the child's death was not accidental, he simply did not interpose a defense that it had been accidental.

The government's quote from Estelle that "'[a] simple plea of not guilty ... puts the prosecution to its proof,'" Gov't's Br. at 22-23, quoting, Estelle v. McGuire, 112 S.Ct. at 481, quoting, Mathews v. United States, 485 U.S. 58, 64-65 (1988), is inapposite. Mathews involved an accused who wanted to continue to deny the elements of the offense while also raising a defense of entrapment. That case says nothing about the effect of an accused's concession of an element of the offense on the government's burden of proof. (3) Further, Estelle was a post-conviction habeas attack on a state court conviction in which the only issue was the constitutional question of whether the admission of the battered child syndrome evidence violated the due process clause. 112 S.Ct. at 481 ("The evidence of battered child syndrome was relevant to show intent, and nothing in the Due Process Clause of the Fourteenth Amendment requires the State to refrain from introducing relevant evidence simply because the defense chooses not to contest the point."). The Supreme Court in Estelle did not decide whether a stipulation to the issues for which prior bad acts are offered, renders evidence of those bad acts inadmissible under Federal Rules of Evidence 404(b) and 403.

The government contends that this Court's opinion in United States v. Manner, 887 F.2d 317, 322 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062 (1990), "recognized the limits in the [Second Circuit's] holding [in United States v. Moehl, 604 F.2d 748 (2d. Cir. 1979)]. Gov't Br. at 24, n. 9. In fact, in Manner this Court simply distinguished the facts before it from those in Moehl. Mr. xxxxxxx' case, however, presents facts more like those in Moehl than like those in Manner. Like Moehl, and unlike Manner, Mr. xxxxxxx' case did not involve a charge of conspiracy. This Court has recognized that the charge of conspiracy "increases the probativeness of Rule 404(b) evidence." Manner 887 F.2d at 322, citing United States v. Sampol, 636 F.2d 621, 659 n. 23 (D.C. Cir. 1980). In addition, in Mr. xxxxxxx' case, like Moehl, and unlike Manner, "[f]rom the pretrial conference through trial and summation, [his] counsel repeatedly offered to stipulate or concede ... intent if the jury found that [Mr. xxxxxxx] had in fact sold the cocaine." Manner, 887 F.2d at 322. In short, like the accused in Moehl, Mr. xxxxxxx' "offers of stipulation and concession were ... unequivocal." 887 F.2d at 322 n. 2.

The government's brief fails to discuss the cases Mr. xxxxxxx cited in support of the proposition that where an accused offers to stipulate to the issue for which the 404(b) evidence is proffered, that evidence should not be admitted. Opening Br. at 29-30. Instead, without discussing them or their rationales, the government merely cites three cases which hold otherwise. Gov't Br. at 23-24 & n. 9.

In United States v. Chaimson, 760 F.2d 798 (7th Cir. 1985), the accused's defense was a "blanket denial of any wrongdoing, and ... such a denial was meant to nullify any evidence of intent." 760 F.2d at 806. The defense did not, however, offer to concede intent. Thus, unlike Mr. xxxxxxx' defense, that someone did wrong (including having knowledge of the drugs in the Jetta and the intent to distribute them), but it was not he, Chaimson's defense did not involve affirmatively conceding intent and knowledge.

Similarly, in United States v. Provenzano, 620 F.2d 985 (3rd Cir.), cert. denied, 449 U.S. 899 (1980), the stipulation into which the accused was willing to enter was a limited one. 620 F.2d at 1004 (the accused "was not willing to stipulate to the ultimate fact..."). In contrast, Mr. xxxxxxx' offered stipulation on intent and knowledge was "unequivocal." Manner, 887 F.2d at 322, n. 2.

Finally, this Court's opinion in United States v. Caldwell, 543 F.2d 1333 (D.C. Cir. 1974), cert. denied, 423 U.S. 1087 (1976), was decided before United States v. Kang, 934 F.2d 621 (9th Cir. 1991), United States v. Yeagin, 927 F.2d 798 (5th Cir. 1991), United States v. Manner, 887 F.2d 317 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062 (1990), United States v. Moehl, 604 F.2d 748 (2d Cir. 1979), and United States v. Silva, 580 F.2d 144 (5th Cir. 1978). See Opening Br. at 29-30. Moreover, the offered stipulation in Caldwell related to an expert's testimony and therefore did not present the same potential for prejudice as the three prior instances of misconduct elicited before the jury in Mr. xxxxxxx' case. Thus, the government's reliance on dicta from a footnote in Caldwell is not determinative of the issue in Mr. xxxxxxx' case. See Gov't Br. at 24, citing Caldwell, 543 F.2d at 1359 n. 134.

The government's claim that the testimony from four witnesses about three prior arrests of Mr. xxxxxxx was the "best evidence" of intent, see Gov't Br. at 24, flies in the face of reason. Here, the best evidence of the seller's intent was the offered stipulation that the person who placed the drugs on the ledge for the undercover officer to retrieve, also had the intent to distribute the drugs recovered from the Jetta. The "second best" evidence that the seller intended to distribute the drugs found inside the Jetta (as opposed to possessing them for some other purpose) was that he had done that very thing moments earlier. The notion that the government needed to bring out vaguely similar events occurring months earlier in order to prove what the seller had in mind with respect to the drugs found in the Jetta is truly far-fetched in light of Mr. xxxxxxx' concession and the transaction that had just taken place. (4)

The government's reliance on this Court's decision in United States v. Harrison, 679 F.2d 942 (D.C. Cir. 1982), to suggest that other crimes evidence is the best evidence of intent is inapposite since there is nothing Harrison to indicate that the accused ever agreed to stipulate to intent. Moreover, there was no evidence in Harrison, as there was in Mr. xxxxxxx' case, regarding an undercover police officer having just purchased drugs which came from the premises from which other drugs were recovered.

B. The Government's Two Bases For Admission Of The 404(b) Evidence Raised For The First Time on Appeal

On appeal the government advances two arguments regarding the 404(b) evidence which it did not raise below. It argues that the three prior bad acts were relevant because they showed a similar method of distribution, Gov't Br. at 25, and refuted Mr. xxxxxxx' "mere presence" defense. Gov't Br. at 25-26. Since the government argued below that the disputed evidence was being offered solely to establish Mr. xxxxxxx' intent and knowledge, the government should not be permitted to add now other bases upon which the similar act evidence was admissible. United States v. Zelinka, 862 F.2d 92, 99 (6th Cir. 1988) ("... the government may not look to a court of appeals to infer an argument for admissibility where none was made"); United States v. Gruttadauro, 818 F.2d 1323, 1328-29, n. 6 (7th Cir. 1987) ("post hoc rationales that would warp Rule 404(b)'s purpose should be avoided..."). Cf. United States v. Pantone, 609 F.2d 675, 682 (3rd Cir. 1989). Unlike a suppression ruling, which may be upheld on any rationale, even if it is not the one the trial court had used, in the case of 404(b) evidence, the jury instructions and arguments of counsel are tailored based upon the purpose for which the evidence is admitted. Accordingly, the government should not be permitted to add rationales for the admission of the evidence which it did not argue below.

The government cannot justify admission of the three prior bad acts as relevant to the method of distribution used by Mr. xxxxxxx, Gov't Br. at 25, because the method of distribution was not at issue. The method of distribution would have been significant to show "modus operandi" only if it had risen to the level of being a "signature." To meet this exception, however, the manner in which the offense was committed must be "unique or unusual, and similar in nature to the crime charged, or (whether unusual or not) very close in detailed resemblances to the crime charged (distinctively similar) ..." Louisell and Mueller, Federal Evidence, 140, pp. 264-265 (1985 ed.) (emphasis in original). As explained by Professor McCormick in his seminal treatise on evidence, "Here much more is demanded than the mere repeated commission of crimes of the same class ...[; t]he device used must be so unusual and distinctive as to be like a signature." McCormick, Evidence, 190, p. 449 (2d. ed. 1972).

In Mr. xxxxxxx' case not only was the method of distribution not at issue (nor raised below by the government), (5) it was hardly unique. The use of a "partner to engage in hand-to-hand transfers of cocaine for cash" on a public street, Gov't Br. at 25, describes thousands of drug transactions which occur every day in the District of Columbia.

Likewise, the government's belated argument that the three prior bad acts refute the suggestion that Mr. xxxxxxx was merely present in the 900 block of Fifth Street, N.W., misapprehends Mr. xxxxxxx' defense. Mr. xxxxxxx' defense was not mere presence; it was mistaken identification. To the extent that for any mistaken identification defense to be advanced, the accused always must have been present to be arrested, it was a mere presence defense. This formulation, however, misconstrues mere presence. Mere presence means that the accused was there but that s/he engaged in no act to advance the offense. Cf. United States v. Perkins, 926 F.2d 1271, 1283-84 (1st Cir. 1991) ("'Mere presence' implies not just an absence of criminal intent but passivity and nonparticipation in the actual commission of the crime"). Mr. xxxxxxx' defense was that someone committed acts which advanced the offense, but that he was not that person.

The government relies on United States v. Ferrer-Cruz, 899 F.2d 135, 138-139 (1st Cir. 1990), in which the accused argued mistaken identity rather than lack of knowledge or intent as his defense, Gov't Br. at 26, but the First Circuit ruled that those issues remained in the case. That case is distinguishable from Mr. xxxxxxx' case. Significantly, in Ferrer-Cruz the First Circuit noted that "at the time the government presented the evidence, at the end of its case-in-chief, it did not know precisely what type of defense the [accused] would make..." id. In contrast, as the government's brief concedes, it was clear from the outset of Mr. xxxxxxx' trial what his defense would be and it was abundantly clear from the pleadings, arguments, and proceedings before the jury that the purpose for which the government offered the 404(b) evidence was not a contested issue in the case. See Gov't Br. at 19 ("'It appears that the defense is going to be identity, mistaken identity'"), citing Tr. 3/9/92 at 2-3.

In Ferrer-Cruz the First Circuit distinguished the facts before it from those the Second Circuit had ruled sufficient to "remove 'knowledge/intent' from a case (and thereby potentially avoid introduction of prior convictions)..." 899 F.2d at 139. The scenario the First Circuit deemed sufficient to achieve such a result was precisely that which occurred in Mr. xxxxxxx' case: The accused must "tell[] the court that he will not dispute those issues, provided that he expresses himself to the court with sufficient clarity to justify the court in (a) disallowing any 'subsequent cross-examination or jury argument that seeks to raise' those issues, and (b) 'charging the jury that if they find all other elements beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed.'" 899 F.2d at 139 (emphasis in original), citing United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980). In Mr. xxxxxxx' case the record makes abundantly clear that, had the government been willing to accept Mr. xxxxxxx' stipulation, the trial court could have disallowed any cross-examination or jury argument on knowledge or intent and instructed the jury that if it found that Mr. xxxxxxx, and not someone else, had been the one who possessed the drugs in the Jetta, then they could find that he did so knowingly and with the intent to distribute.

Finally, the Fourth Circuit's opinion in United States v. Walton, 602 F.2d 1176 (4th Cir. 1979), cited by the government as an example of prior bad acts being relevant to negate a defense that someone else committed the offense, see Gov't Br. at 26, is distinguishable from Mr. xxxxxxx' case. Unlike Mr. xxxxxxx' case, there is no suggestion in Walton that the accused had offered to stipulate that "the real perpetrator of the criminal acts," had the requisite intent. 602 F.2d at 1181.

II. The Erroneous Admission Of The "Buy Report"

The Second Circuit's rationale in United States v. Oates, 560 F.2d 45 (2d. Cir. 1977), applies to Mr. xxxxxxx' case because the undercover officer's "buy report" involved the undercover officer's impressions and therefore the "buy report" contained not merely "ministerial, objective observation[s]," but instead "had ... the subjective features of reports made in a more adversarial setting such as an investigation of a crime scene." United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985), citing United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir. 1980), cert. denied, 449 U.S. 864 (1980). See also United States v. Wilmer, 799 F.2d 495, 500-501 (9th Cir. 1986), cert. denied, 481 U.S. 1004 (1987) (calibration report not inadmissible under Rule 803(8) because it was not an "observation[] made by law enforcement officials at the scene of a crime or the apprehension of the accused" and instead was a "'record[] of [a] routine, nonadversarial matter[]' made in a nonadversarial setting"), citing United States v. Orozco, 590 F.2d 789, 793 (9th Cir.), cert. denied, 442 U.S. 920 (1979).

Likewise, the other cases cited by the government did not involve police reports containing impressionistic and subjective observations of the author, as the "buy report" in Mr. xxxxxxx' case did. United States v. Hayes, 861 F.2d 1225 (10th Cir. 1988), involved computer records developed by the Internal Revenue Service, not a law enforcement agent's perception of events at the scene of a crime or the apprehension of the accused. Similarly, United States v. Metzger, 778 F.2d 1195 (6th Cir. 1985), cert. denied, 477 U.S. 906, involved reports of routine matters admitted under FRE 803(10) (absence of public record entry") in order to demonstrate that certain documents were not contained within those reports and that therefore a criminal offense had been committed by virtue of those documents not having been filed. Thus, the cases which have criticized the Second Circuit's opinion in Oates largely have involved "reports of routine matters" rather than "observations made by law enforcement officials at the scene of a crime or investigating a crime." Hayes, 861 F.2d at 1229, citing Quezada, Wilmer, Hernandez-Rojas. In short, even under the more restrictive reading of the Second Circuit's opinion in Oates, the "buy report" in Mr. xxxxxxx' case should not have been admitted into evidence.

The government's brief relies on United States v. Coleman, 631 F.2d 908 (D.C. Cir. 1980), Gov't Br. at 32, 35-36, decided after Oates, and in which no 803(8) argument was made, but the government fails to acknowledge that twelve years after its decision in Coleman this Court recognized that not all hearsay objections to police reports are disposed of by reference to Coleman. See United States v. Smith, 964 F.2d 1221, 1224 n. 3 (D.C. Cir. 1992). This Court has not dealt squarely with the issue presented by Mr. xxxxxxx' case of an objected-to admission of a police report by the government for a non-ministerial purpose.

The government's reliance on this Court's decision in United States v. Clarke, 24 F.3d 257 (D.C. Cir. 1994), is also misplaced. In Clarke the appellants raised hearsay objections to three items. 24 F.3d at 266-268. As to the tape recording of police broadcasts which included words spoken by the undercover officer, see Gov't Br. at 36, this Court noted, without much discussion, that the tape recording was "arguably admissible as identification testimony and as present sense impressions," 24 F.3d at 268, and that admission of that tape was not plain error. Unlike Mr. xxxxxxx' case, in Clarke there was no objection made in the trial court to the admission of the hearsay. Moreover, this Court merely noted that the tape was "arguably" admissible. Finally, on appeal in Clarke there was no discussion of the 803(8) ban on police reports being admitted by the government in criminal cases. In short, the precedential value of Clarke for Mr. xxxxxxx' case is limited.

Finally, the government misconstrues Mr. xxxxxxx' argument as urging a "total ban ... on the admission of any law enforcement record ... under 803(8)." Gov't Br. at 35. Mr. xxxxxxx does not urge a "total ban," nor need this Court decide that issue within the context of this case. As his opening brief makes clear, Opening Br. at 38-40, and as is reiterated here, the objection to the admissibility of the "buy report" is based upon its containing "observations made by [a law enforcement official, Farmer] at the scene of a crime or in investigating a crime." Hayes, 861 F.2d at 1229. Had the report contained only "ministerial objective observation[s]," Mr. xxxxxxx would not have sought its exclusion from evidence. Quezada, 754 F.2d at 1194.

III. The Erroneous Exclusion of The Transcript of Farmer's Prior Sworn Testimony

To the extent the government's argument against admission of the transcript of Farmer's motions hearing testimony is grounded upon the trial court's ruling that that testimony was not inconsistent with Farmer's trial testimony, the trial court erred. In December, 1991, at the motions hearing, Farmer clearly testified that the "buy report" was written after Mr. xxxxxxx had been arrested. A. 211. Farmer did not qualify that statement by suggesting that only portions of the "buy report" were written after the arrest while other portions were written before the arrest. In contrast, at trial, in response to challenges to his identification of Mr. xxxxxxx, Farmer testified that as to the one most critical portion of the "buy report" i.e., the clothing description, it was written before Mr. xxxxxxx' arrest. A. 198-200, 205-206. This was clearly inconsistent with his motions hearing testimony.

For two reasons this Court's decision in United States v. Marshall, 935 F.2d 1298 (D.C. Cir. 1991), upon which the government relies, see Gov't Br. at 40, does not inform the determination in this case. First, in Marshall there was no inconsistency. 935 F.2d at 1300. Second, in Marshall, as to other statements the accused sought to introduce as prior inconsistent statements, this Court found that they "pertained to collateral matters ..." Id. In contrast, as Mr. xxxxxxx explained in his opening brief, the time at which Farmer wrote the "buy report" in this case went to the crux of Mr. xxxxxxx' defense because his defense was that he was not the person who sold Farmer drugs and that the clothing description in the "buy report" matched the clothing Mr. xxxxxxx was wearing when arrested only because Farmer did not write up the "buy report" until after Mr. xxxxxxx' arrest. See Opening Br. at 42-43. As argued in closing, see A. 46-50, if the "buy report" was written after Mr. xxxxxxx' arrest, it was not surprising that the description in that report matched Mr. xxxxxxx.

Finally, the government's reliance on the Eleventh Circuit's decision in United States v. Jacoby, 955 F.2d 1527 (11th Cir. 1992), cert. denied, 113 S.Ct. 1282 (1993), is wholly distinguishable from Mr. xxxxxxx' case. In Jacoby the prior sworn statement involved the witness' grand jury testimony in which he recited the names of three individuals present at a meeting, but made no mention of the accused having been present. When the witness testified at trial that the accused had also been present, the defense argued unsuccessfully that that was inconsistent with the witness' grand jury testimony.

What distinguishes Jacoby from Mr. xxxxxxx' case is that in Jacoby the witness originally made absolutely no mention, one way or the other, of the accused. His list of meeting participants did not purport to be exhaustive. In contrast, in Mr. xxxxxxx' case at the motions hearing Farmer did testify about the time at which he prepared the "buy report." He testified, without qualification, that it was prepared after Mr. xxxxxxx' arrest. He did not state that some of it was prepared before the arrest while the rest of it was prepared after the arrest. Thus, it was not Farmer's failure, in his motions hearing testimony, to make any mention at all of the time the report was written, but rather the fact that he testified that it had been written after Mr. xxxxxxx' arrest. Thus, his trial testimony that the physical description portion (the most significant section of the report for purposes of Mr. xxxxxxx' defense) was written before Mr. xxxxxxx had been arrested, was inconsistent with Farmer's motions hearing testimony. Accordingly, the transcript of that prior sworn testimony should have been admitted into evidence at trial.

CONCLUSION

For each of the foregoing reasons individually, and for all of the foregoing reasons in aggregate, and for those reasons set forth in Mr. xxxxxxx' opening brief, his conviction should be reversed and his case remanded for a new trial.



Respectfully submitted,















Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Horace Lee xxxxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500









CERTIFICATION OF BRIEF LENGTH









Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 6250 words.











Santha Sonenberg







CERTIFICATE OF SERVICE







This is to certify that on this 17th day of October, 1994, two copies of the foregoing Brief for Appellant were served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by first-class postage pre-paid mail.











Santha Sonenberg



1. When asked by the trial court how Mr. xxxxxxx' "willingness to stipulate ... affect[ed the government's] motion [to introduce the prior bad acts]", the prosecutor simply stated that "the government is still entitled to prove its case ... We don't have to accept stipulations." A. 86-87.

2. Not only during the legal discussions outside the jury's presence, but also in the opening and closing arguments before the jury, the defense conceded both intent to distribute and knowledge. In the opening the defense stated:

Let me tell you about a couple of things that are not in issue in this case. The first thing that's not in issue in this case is that the real seller, the real person who sold drugs to Officer Farmer had the intent not only to sell the drugs that he sold to Officer Farmer, but also to distribute the drugs that were found in the car. The real seller, we agree, ahead that intent. We also agree that the real seller had knowledge of the drugs that were found in the car. So those two things are not in issue.

A.33.

Similarly, in closing the defense told the jury:

...[W]e don't contest that the real seller in this case had the intent to distribute the drugs that were in the blue Jetta, and ... we don't contest that the real seller in this case knew that there were drugs in the blue Jetta. So none of that is in issue.

A.43-44.

3. The second case the government cites to support its contention that a plea of not guilty automatically places intent at issue, United States v. Jones, 913 F.2d 1552, 1556 (11th Cir. 1990), does not illuminate the issue in Mr. xxxxxxx' case because there is no indication that Jones offered to stipulate on the issue of intent.

4. In addition, the government was permitted to adduce even more evidence of intent in the form of testimony from a "drug expert" to establish intent to distribute the drugs in the Jetta and the "juggler's" knowledge of the drugs in the Jetta. In light of this cumulative evidence on an issue that was not even in dispute, there was no need for the 404(b) evidence.

5. To the extent that the government is attempting to argue that the method of distribution demonstrated identity (see Gov't Br. at vii, stating in "Issues Presented" that the evidence was relevant to "identity" but never arguing that ground), the government conceded below that it could not meaningfully distinguish in this case between the identity exception and propensity evidence and explicitly retracted that asserted ground for admission. A-87.