UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

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NO.

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UNITED STATES OF AMERICA,



Appellee,



v.



DONNIE M. xxxxxxx,



Appellant.



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BRIEF FOR APPELLANT

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STATUTES AND RULES



Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5), pertinent statutes and rules are set forth in the Addendum hereto.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231. A notice of appeal having been timely filed, this Court has jurisdiction pursuant to 28 U.S.C. 1291. (1)

ISSUES PRESENTED

1. Whether the judge erroneously admitted the cocaine base in evidence without proof that an unbroken chain of custody was reasonably probable where the seizing officer had found that the substance Mr. xxxxxxx allegedly possessed weighed 66 grams and the DEA chemist had found that the proffered drugs weighed 55.45 grams.

2. Whether the judge erroneously (a) permitted cross-examination of Mr. xxxxxxx about his other arrests, which the prosecutor unfairly emphasized and exploited in his rebuttal argument to the jury, and (b) failed to issue any instructions limiting the jury's consideration of the arrests.

STATEMENT OF THE CASE

Procedural Background

Donnie M. xxxxxxx, appellant, was charged in a one-count indictment with possessing more than 50 grams of cocaine base with intent to distribute (21 U.S.C. 841 (a) and (b)(1)(A)(iii)) on or about March 20, 1990. A hearing was held on December 19, 1990 on his motion to suppress physical evidence, and the motion was denied in a memorandum filed on July 22, 1991. Mr. xxxxxxx was tried by jury from January 14-16, 1992, and found guilty as charged. The jury was required by the judge to find, contrary to present law (United States v. Patrick, 959 F.2d 991, 996 n.5 (D.C. Cir. 1992)), that Mr. xxxxxxx did possess more than 50 grams; his defense was that he possessed less than 50 grams and that what he possessed was for his own use. On April 3, 1992, he was sentenced to 121 months in prison (the Guideline minimum), to be followed by five years of supervised release, and a special assessment of $50.

Statement of Facts

The Government's Evidence

Detective John J. Cunningham, Officer Bradley Belden, and Officer Donald Bell arrested Mr. xxxxxxx at about 8:30 p.m. on March 20, 1990 (I. 15, 69). (2) Cunningham and Belden testified at trial. Earlier that day the police had been trying with the aid of an informant to make a drug purchase in an apartment in xxxx 14th Street, N.E., from a person named xxxxxx Jackson, nicknamed Mac (I. 67, 77-78). Belden testified that the informant was successful; he bought drugs there and a search warrant was ultimately obtained and executed (I. 75-76). Cunningham testified that the informant did not make a purchase, and thus no warrant was sought (I. 48).

The officers agreed, however, that the informant told them that in the doorway of the building next door, xxxx 14th Street, he saw a black male, wearing a black jacket, a black sweatshirt with a hood outside the jacket, and blue jeans, in possession of a large quantity of what the informant suspected was crack cocaine (I. 16, 46, 49, 67, 78). (3) The description did not mention hairstyle, facial hair, or shoes (I. 38-39, 77). After receiving the tip, the police let the informant go on his way (I. 68).

When the police approached xxxx, it was too dark to see faces, and there had been seven to nine people there, "off and on," but the police concluded that Mr. xxxxxxx, who was in a group of three "a little off to the side," met the informant's description, and they approached with guns drawn and took him and another man into the hallway, where they "could see what was going on" (I. 19, 24-25, 35, 40, 41, 68, 80, 81). There was a female near Mr. xxxxxxx, but she was let go, and Mr. xxxxxxx's male companion was patted down for weapons and released, as well (I. 42-43, 80-81).

Belden searched Mr. xxxxxxx's right jacket pocket and found, said the officers, apparent crack in two bottles, one white and one brown (I. 28-29, 68). Cunningham searched Mr. xxxxxxx's left jacket pocket and found $436 (I. 26, 45, 69). (Both witnesses denied strip searching Mr. xxxxxxx and the other man in the hallway (I. 44, 82).) Mr. xxxxxxx was then formally arrested (I. 69).

Belden kept the bottles, took them to the stationhouse, field- tested the contents and obtained an indication of cocaine, weighed separately the contents of each bottle (which made "roughly even piles"), obtaining a total weight of 66 grams, marked the bottles with his initials and the date, and "[p]laced it in a heat-sealed envelope, and submitted it to the DEA for analysis" (I. 70, 74). The officer did not testify as to how soon after the weighing he heat-sealed the drugs, nor did he claim that he kept them constant-ly secured in the station before "submitting" them to the DEA. (4)

Belden testified on direct examination that he had "no idea" whether the triple-beam scale he used to weigh the seized substance was accurate (I. 70). (5) Mr. xxxxxxx's counsel objected to the admission in evidence of the drugs (Government's Exhibit 13) because the exhibit was thus "impeached" by the witness (I. 70). Counsel pointed out correctly that the prosecutor had told the jury in his opening statement that the police had seized 66 grams (see I. 8), and counsel observed that now the amount seized was claimed to be completely unknown (I. 71). The judge took note that the DEA chemist had found 55.45 grams, and he admitted the exhibit, opining, "As far as the law is concerned, as long as it's more than 50 grams that's all that's required" (I. 71).

Joseph P. Bono, the DEA chemist, testified that in the exhibit he found 55.45 grams of 93 percent pure cocaine base (I. 55, 56). He weighed the contents of both bottles together after determining that "the material in one bottle was the same as the other" (I. 62). He admittedly did not know what had happened to the additional 10.55 grams reported in the part of the DEA-7 form that he did not fill out (I. 63-65). The outer exhibit envelope that he had heat-sealed was intact, but he acknowledged that he did not know whether or not the inner heat-sealed envelope had been opened and resealed before he received it (I. 60).

Detective Dwight Rawls testified as "an expert in the handling, manufacturing and distribution of crack cocaine in the District" (I. 88). He conceded on voir dire that he could not testify as to how much a "coke head" would consume, and he said, "I can only testify as a general matter of principles [sic] as to common practice used by people who distribute drugs. I am not testifying as to effect or to use, but simply in [sic] distribution scheme" (I. 89-90). Nevertheless, after testifying to the jury that 55.45 grams would be worth about $5500 or $5600 (280 x $20) on the street and thus would be consistent with intent to distribute (I. 93-95), Rawls testified, still on direct examination, that that amount would not be consistent with personal possession: "It's a much larger amount than would be consistent with personal possession" (I. 95). His testimony proceeded as follows:

Q. [The Prosecutor] Why couldn't an individual user possess such a large quantity?

A. Cost and usage patterns. That is that a normal person who has a tremendous addiction problem will use whatever amount that's available. That's the standard practice.

So it would be very difficult for a person to have without the intent to either sell it to someone else, deliver it to someone else, to exchange it for another product. It's not consistent with daily use.

In other words, we're talking about using one twenty-dollar rock a day, we're talking about approximately nine months of use even. If we were using five twenty-dollar rocks a day, we're talking about two months of use.(I. 95-96).

The Defense's Evidence

Mr. xxxxxxx testified in his own defense. He said he went to xxxx 14th Street, N.E., sometime in the afternoon of March 20, 1990 (II. 166). Cecil Smallwood, Marquita Tyler, and a girl from upstairs named Sharon or Sherrie were with him there (II. 166). He was not approached by anyone who asked for drugs, and he did not display a white medicine container of drugs and ask anyone whether he or she wanted to buy (II. 167). He did possess the brown medicine bottle containing crack for his own use, but he did not know whence the white bottle in evidence came (II. 165, 167). Mr. xxxxxxx was "stoned," or "high," that day (II. 168).

Mr. xxxxxxx admitted that he was wearing a black jacket and a black sweatshirt with a hood that day, but he denied that he wore blue "Used" jeans; he said he wore black stonewashed jeans (II. 168-169). He had a "fade" hairstyle, and he wore no facial hair (II. 175-176). (The judge sustained the prosecutor's objection to defense counsel's question about Mr. xxxxxxx's shoes, which was aimed at impeachment of police testimony about his conformity to the informant's description (II. 176).)

The two men were at the front of the building when the officers approached with their guns out and said, "Freeze, Motherfucker, don't move or I'll blow your head off" (II. 169-171). Mr. Smallwood was "shoved" into the hallway with a flashlight, and both he and Mr. xxxxxxx put their hands up against the wall there, but the officers spun Mr. xxxxxxx around, and Officer Donald Bell hit him in the stomach and then ordered him back against the wall (II. 171). Bell asked Mr. xxxxxxx, "Do they call you Mackie?" and he answered, "No" (II. 176-177).

Mr. xxxxxxx's account of his activities and the police conduct was generally corroborated by Cecil Smallwood, Marquita Tyler, who lived in the apartment off the hallway where Mr. xxxxxxx and Mr. Smallwood were searched, and Ms. Tyler's sister, Robin Henderson, who was home at the time. Mr. Smallwood and Ms. Tyler testified that the police strip-searched him and Mr. xxxxxxx (II. 118-119, 121, 143). (6)

The Prosecutor's Cross-Examination of Mr. xxxxxxx

Early in direct examination of his client, defense counsel had asked, "Prior to March the 20th, 1990, Mr. xxxxxxx, had you ever been arrested or convicted of a criminal act here or anyplace else?" Mr. xxxxxxx had answered, "No," as he had to the next question, "And since that time have you ever been arrested or convicted for a criminal act?" (II. 162). Thereafter, he had testified that he was a heavy user of crack on March 20, 1990, and that he possessed "something like 20-something grams on that date. It wasn't that much. It's like I have smoked some before" (II. 165). He went on to assert that he became "clean," or drug free, as a result of spending about a month and eight days in jail after his arrest in the instant case, adding, "It cleaned me out because I never been there, and I would never like to be back there" (II. 166). (7)

At the end of Mr. xxxxxxx's direct testimony, the prosecutor sought the judge's permission to impeach Mr. xxxxxxx with his four other arrests--in March of 1986 for robbery, force and violence, in June of 1987 for a "cocaine charge," in September of 1987 for assault with a dangerous weapon, and, after his arrest in the instant case, for hindering a police officer in Prince George's County (II. 177-178). Defense counsel protested, stating erroneously that he had only elicited Mr. xxxxxxx's testimony that he had not been arrested and convicted before, but he argued that such cross-examination would be "overwhelmingly prejudicial" in any event (II. 178). The judge preliminarily expressed his "recollection" that "when a defendant takes the stand, his arrests can be brought out" (II. 179). Following a recess, the prosecutor confirmed that the direct examination addressed Mr. xxxxxxx's lack of arrests "or" convictions and he also indicated that he wanted to impeach Mr. xxxxxxx's "later statement about never having been in jail before" (II. 180).

Defense counsel stated his understanding that arrests not followed by convictions may not be used for impeachment, and he informed the judge that if he had used the word "or" instead of the word "and" in his questioning, it had been a "misstatement," because he had "worked with my client on this and I know what the situation is" (II. 180). He went on to argue as follows:

I think the probative value and the prejudicial aspect to the situation is far outweighing anything of trying to impeach this poor sucker's credibility. He wasn't trying to be sneaky or vicious. We worked this, lawyer/client together. We worked this to state he has not been arrested and convicted of a criminal act. Because to be convicted is an impeachable aspect if he brings his record in. That's why it was done deliberately, to emphasize to this Court that he has not been convicted, to this jury.

* * *

That man was not trying to be circuitous. He was not trying to be funny. He told them, ["]I have not been arrested and convicted of a criminal act,["] and he hasn't.

Now, how are you going to impeach that? Because you are gonna say, ["]Well, you have been arrested, though, haven't you?["] His answer would be, ["]Yes.["] Now what are we going to do?

I think the prejudicial value of that line of questioning, your Honor, far, far overwhelms any other thing we could do. It would be totally unfair to the client.

(II. 181-182)

The prosecutor's response focused on Mr. xxxxxxx's purported statement "that he had never been in jail before," and suggested that "with the four prior arrests he must have been in jail at least overnight in each of those" (II. 182). The judge resolved the issue as follows:

Well, whatever counsel's intention may have been, as far as the jury is concerned they heard the defendant say at least twice, and maybe three times, that he had never been arrested or convicted, and he has in fact been arrested several times, and he spent some time in jail, at least once or maybe more than once. I understand that there is some problem in terms of prejudice, in connection with that, but once the door has been opened to that kind of question, I will let the Government go in and refute it.

Now, you can go back and point out to the jury that somebody dropped the charges, and therefore they don't mean anything and so on. But I'll let the Government bring it out.

(II. 182-183).

Cross-examination by the prosecutor began immediately. After inquiring about Mr. xxxxxxx's employment status and income, the prosecutor turned to his direct testimony about not having been arrested or convicted. Mr. xxxxxxx initially explained, "Well, I didn't understand the question," and when the prosecutor asked, "Didn't you respond no?", Mr. xxxxxxx answered, "Yes, I have" (II. 187). Then, over further objection by defense counsel, the prosecutor elicited Mr. xxxxxxx's acknowledgement that he had been arrested in March, 1986, for robbery, force and violence, and in September, 1987, for "a charge involving cocaine"; Mr. xxxxxxx said he did not remember being arrested in September, 1987, for assault with a dangerous weapon (II. 187-188).

Mr. xxxxxxx admitted that he had been in jail, "for not over a day," following the arrests he remembered, and he acknowledged that he had testified that his incarceration in the instant case was, in the prosecutor's words, "your first time in jail," but he explained, again, that he had not understood the question (II. 189-190). He also explained, referring to the prior drug arrest, that the officers had made a mistake, and "they threw it out" (II. 189). The prosecutor proceeded to examine Mr. xxxxxxx about his arrest after March 20, 1990, in Price George's County, for hindering a police officer, and he admitted it, explaining that he had resisted what he thought was an illegal search and slapping of him by an officer, and that the officer had later told him that he would throw the case out because Mr. xxxxxxx did not live in Maryland (II. 191-192). The prosecutor elicited the fact that the case was "still pending," however (II. 192). And he concluded this phase of the cross-examination with the question, "Just so the record is clear, none of those arrests that I referred to have resulted, at least yet, in any convictions. Isn't that true?", to which Mr. xxxxxxx responded, after having the question rephrased, in the affirmative (II. 192-193; emphasis added).

On redirect examination, Mr. xxxxxxx's attorney brought out the facts that his prior drug case was dismissed because an officer was charged with and convicted of tampering with the evidence, and that his armed robbery case was dismissed because the complainant saw him after the arrest and said he was not the robber (II. 208-209).

The Prosecutor's Arguments to the Jury

In his closing argument concerning the credibility of witnesses, the prosecutor told the jury, "The police officers that testified have no direct interest in the outcome of this case. Nothing is riding on it for them" (II. 225-226). He went on to declare, not only that Mr. xxxxxxx and his friends had an interest in the case, but that the defense testimony was a "rehearsed act" (II. 226). (8)

The prosecutor contended in his rebuttal argument that Mr. xxxxxxx was not telling the truth about being a crack user and addict, declaring at one point,

Now, ladies and gentlemen, you can use your common sense. We have all seen crack heads. Look at Government's Exhibit No. 10 of the defendant at the time he was arrested. Does that look like a thin and drawn person who's been using crack heavily for two-and-a-half years? We have all seen them. They're so thin you can see through them when they're turning sideways.

(II. 240) His concluding remarks included the following:

Mr. xxxxxxx alleges all sorts of police improper actions here: strip search, punchings. But isn't it convenient, isn't it interesting that on direct examination he said he had never been arrested? It turns out he had admits [sic] to at least having been arrested three times. Isn't that interesting?

He told you he had never been in jail before. Well, isn't it interesting that he admits on cross-examination that he has been in jail at least for those three cases.

Isn't it interesting -- perhaps most interesting of all -- that in each of these three cases he says the police did it. The police tampered with evidence in one case. All he had in another case was a water gun, and he got arrested. Every single case he's just an innocent guy who has been tricked by the police. That's what he wants you to believe. In the other case, the pending case, he claims the police hit him. That's why he was arrested.

What does he come in here and tell you? Story number four: they did it here too.

* * *

Listen to the Court's instruction about determining intent. When you apply that standard to the evidence, and consider the testimony of the expert, Dwight Rawls, about drug dealing in the city, I am confident you will find that there could have been only one reason to possess over $6,000 in cash and in drugs, to sell them. Don't get distracted by appeals to emotion and appeals to things that just don't matter. Consider the evidence, and do the right thing.

(II. 241-242)

The judge never gave any limiting instructions concerning the jury's consideration of the testimony about the arrests. The jury deliberated for five hours and twenty minutes before finding Mr. xxxxxxx guilty as charged (III. 263-264).

SUMMARY OF ARGUMENT

Mr. xxxxxxx did not receive the fair trial to which he was entitled as a matter of due process. First, he was convicted of possessing a quantity of cocaine base that the Government failed to establish was properly admissible. There was a substantial discrepancy between the weight of a substance containing cocaine found and reported by the seizing officer and the weight of cocaine base in the exhibit tested by the DEA chemist. The seizing officer was unable to explain the weight discrepancy except by speculation, and he did not establish that the chain of custody was unbroken. Accordingly, the Government did not carry its burden of showing to a reasonable probability that the drugs proffered in evidence were the same substance, both quantitatively and qualitatively, that Mr. xxxxxxx allegedly possessed.

Second, the judge erroneously permitted extensive cross-examination of Mr. xxxxxxx about his prior arrests, which were in issue only because defense counsel mistakenly asked him about arrests "or" convictions. In rebuttal argument, the prosecutor unfairly emphasized and exploited the evidence relating to the arrests to suggest, among other things, Mr. xxxxxxx's criminal propensity. And the judge failed to issue both contemporaneous and final instructions limiting the jury's consideration of the arrests.





ARGUMENT

POINT I

THE JUDGE ERRONEOUSLY ADMITTED THE COCAINE BASE WITHOUT PROOF THAT AN UNBROKEN CHAIN OF CUSTODY WAS REASONABLY PROBABLE WHERE THE SEIZING OFFICER HAD FOUND THAT THE SUBSTANCE MR. xxxxxxx ALLEGEDLY POSSESSED WEIGHED 66 GRAMS AND THE DEA CHEMIST HAD FOUND THAT THE PROFFERED DRUGS WEIGHED 55.45 GRAMS.



The Standard of Review

Evidentiary rulings are reviewed for abuse of discretion. See, e.g., United States v. Ladd, 885 F.2d 94 (1st Cir. 1989). Defense counsel objected to the admission in evidence of the drugs allegedly seized, arguing that Officer Belden's claimed ignorance of the accuracy of his weight finding of 66 grams--55.45 grams being the weight found by the DEA chemist--"impeached" the Government's exhibit (I. 70-71). This objection should be deemed adequate to preserve for full appellate review Mr. xxxxxxx's contention that the identity of the substance seized and the cocaine base proffered in evidence was not proved to a reasonable probability. Fed. R. Crim. P. 51. And in any event, it was plain error, under Fed. R. Crim. P. 52(b), in light of the possibility of tampering revealed by the substantial weight discrepancy, for the judge to admit the drugs without unambiguous proof that the chain of custody was not broken. This physical evidence was the sine qua non of the Government's case, and its admission without assurance that it was "what its proponent claim[ed]" (Fed. R. Evid. 901(a)) was obviously erroneous and "substantially undermined the fairness of the trial." See United States v. Simpson, 992 F.2d 1224, 1228 (D.C. Cir.), cert. denied, 114 S. Ct. 286 (1993), citing United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1985).

The Erroneous Admission of the Drugs Without Sufficient Proof that They Were the Same Substance Seized from Mr. xxxxxxx

When it is established that tangible evidence of a crime may have been tampered with and its identity or character changed, the possibilities of misidentification and adulteration must be eliminated to a "reasonable probability." United States v. Lane, 591 F.2d 961, 962-963 (D.C. Cir. 1979); Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969); Fed. R. Evid. 901(a). Indeed, even where there is no specific indication of tampering, a break in the chain of custody of key evidence may be fatal to the Government's case. United States v. Coleman, 631 F.2d 908, 912 (D.C. Cir. 1980) (lock-seal envelopes and DEA forms were admissible so that Government could satisfy its burden to prove chain of custody of heroin); Novak v. District of Columbia, 160 F.2d 588, 589 (D.C. Cir. 1947) (failure to identify bottle containing urine sample rendered sample inadmissible); Smith v. United States, 157 F.2d 705 (D.C. Cir. 1946) (officers' identification of allegedly stolen articles insufficient to link them to victim and defendant).

In the instant case, it was undisputed that Officer Belden weighed the substance he allegedly seized from Mr. xxxxxxx on the triple-beam scale at the stationhouse and determined the weight, as reported in the standard documentation, to be 66 grams. It was also undisputed that the DEA chemist found the cocaine base he took from the envelope allegedly heat sealed by Belden to weigh 55.45 grams. Despite this conspicuous discrepancy of more than ten and one-half grams--over twice the amount for which 21 U.S.C. 841 (b)(1)(B)(iii) mandates a five-year minimum prison sentence--the prosecutor did not elicit testimony from Belden that his possession of the substance he seized was continuous, thus making tampering or substitution impossible, until the heat-sealed envelope was placed in the locked narcotics evidence depository. Nor did Belden's testimony about the sequence of his actions suffice to eliminate the possibility of tampering or substitution; he did not claim that he heat-sealed the substance immediately after field-testing it and weighing it and that he placed the envelope in the secure depository immediately thereafter.

Instead of thus satisfying the Government's burden to prove chain of custody, Belden tried unsuccessfully to wish away the weight discrepancy. He testified on direct examination that he had "no idea" whether the scale he used was accurate (I. 70). On cross-examination he contradicted this claim by testifying, "I guess I was accurate. I have never been told that I wasn't accurate," but then he returned to his "no idea" position, and finally he took the further step of conjecturing, "Obviously, the scale I had was not accurate" (I. 72, 73, 75). This wavering, inconclusive testimony certainly failed to establish a reasonable probability that there was no actual weight discrepancy. (9)

The cocaine base proffered by the Government was rendered inadmissible by the combination of the weight discrepancy and the possible explanation for it--that someone other than Belden handled the seized substance before it was received by the DEA chemist. The most likely place for tampering to have taken place might have been the stationhouse, but the DEA chemist's testimony raised an additional possibility: he allowed that he could not tell whether or not the heat-sealed envelope submitted by the police had been opened and resealed before it reached him (II. 60). Under these circumstances, the Government also should have presented the testimony of the "evidence technician" who, expert witness Rawls testified, would normally have picked up the envelope from the stationhouse (I. 92). Absent such testimony, the grounds for admitting the drug exhibit were particularly weak.

Belden's field test of the substance seized merely indicated the presence of cocaine, not cocaine base (I. 70). The integrity of the exhibit throughout its travels to the chemist, who found cocaine base, was therefore doubly important. This case is distinguishable from United States v. Barnes, 586 F.2d 1052, 1056 (5th Cir. 1978), where the court held that the discrepancy between the weights of cocaine powder seized and delivered to the chemist did not affect either the "quality" of the substance or defendant's liability for possession of a measurable amount. Here, 50 grams or more was an element of the crime under the law of the case, and if the officer's weighing was completely unreliable (as he ultimately claimed) and the chain of custody was broken, one possibility was that someone had added some cocaine base to raise the exhibit's weight above 50 grams. Additionally, of course, the "quality," or identity, of the substance in the exhibit as cocaine base was only determined by the chemist. The weight discrepancy, as evidence of possible adulteration or substitution, clearly did undermine the Government's contention that Mr. xxxxxxx possessed the alleged quantity of a substance that was in fact crack.

Here, in contrast to many cases, it cannot be presumed that the police acted properly because they were disinterested in the success of the prosecution. Although Mr. xxxxxxx was unable to bring it out at trial, the judge had found following the suppression hearing that Belden, Bell, and Cunningham were guilty of "unjustified and outrageous" behavior in strip searching Mr. xxxxxxx and Mr. Smallwood (A. 13-14). That the officers all denied the strip searches under oath hardly provides reassurance that they otherwise handled Mr. xxxxxxx's case with punctiliousness. It is clearly possible that Belden was negligent with the seized substance, if not culpable of more serious misconduct.

In United States v. Dickerson, 873 F.2d 1181, 1184-1185 (9th Cir. 1988), the court found that the Government's claim of probable cause to search an airplane after six days of having it in custody was rendered insufficient by the evidence of tampering and the lack of proof that "acceptable precautions were taken to maintain the evidence in its original state." Here, the issue was guilt beyond a reasonable doubt, and hence the Government's ultimate burden of proof was considerably heavier than it was in Dickerson. A fortiori, therefore, exclusion of the proffered exhibit was required by the evidence here of unexplained tampering and the vagueness of the testimony as to security measures actually taken. Because the fairness of the trial was substantially undermined by the admission against Mr. xxxxxxx of drugs that he was not properly proved to have possessed, the judgment must be reversed and a new trial ordered. (10)

POINT II

THE JUDGE ERRONEOUSLY (A) PERMITTED CROSS-EXAMINATION OF MR. xxxxxxx ABOUT HIS OTHER ARRESTS, WHICH THE PROSECUTOR UNFAIRLY EMPHASIZED AND EXPLOITED IN HIS REBUTTAL ARGUMENT TO THE JURY, AND (B) FAILED TO ISSUE ANY INSTRUCTIONS LIMITING THE JURY'S CONSIDERATION OF THE ARRESTS.



The Standards of Review



Mr. xxxxxxx's counsel prospectively objected to the prosecutor's cross-examination of Mr. xxxxxxx concerning his other arrests and argued that the prejudice caused by it would outweigh any probative value it might have (II. 177-182). Accordingly, counsel preserved for full appellate review, under the abuse of discretion standard, his challenge to the propriety of the cross-examination. See Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992). Counsel did not separately object to the prosecutor's exploitation in argument to the jury of the testimony he had elicited about Mr. xxxxxxx's arrests, but counsel had made his claim of undue prejudice clear initially, and the judge had also admonished him not to interrupt the prosecutor's closing argument (II. 228). See Fed. R. Crim. P. 51. In any event, the prosecutor's final comments were plainly improper and severely prejudicial, and the judge's failure to issue any limiting instructions as to the jury's consideration of the arrests constituted plain error requiring reversal under United States v. Copelin, 996 F.2d 379, 385-386 (D.C. Cir. 1993).

A. The Improper Cross-Examination About Mr. xxxxxxx's Other Arrests and the Prosecutor's Unfair Exploitation of It

Contrary to the trial judge's "recollection," it is generally impermissible to cross-examine a witness, especially a testifying defendant, about his arrests in other cases where he was not convicted. See, e.g., Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992); United States v. Abadie, 879 F.2d 1260, 1267 (5th Cir. 1989); United States v. Vigliatura, 878 F.2d 1346, 1351 (11th Cir. 1989); United States v. Fox, 473 F.2d 131, 136 (D.C. Cir. 1972). The prohibition arises from the fact that "innocent men are often arrested [and] charged with a criminal offense." Pearson v. United States, 192 F.2d 681, 699 (6th Cir. 1951), quoting Glover v. United States, 147 F. 426 (8th Cir. 1906). Normally, therefore, mere arrests have little or no probative value.

In the instant case, the prosecutor's rationale for cross-examining Mr. xxxxxxx about four other arrests--three involving charges of violence and one allegedly involving cocaine--was clearly insufficient to counterbalance the prejudicial inference of criminal propensity (see Fed. R. Evid. 404(b)) that the jury was not only likely to draw, but was in the end virtually advocated by the prosecutor. True, defense counsel made the careless mistake of asking Mr. xxxxxxx whether he had ever been arrested "or" convicted in the periods before and after his arrest in this case (II. 162). But Mr. xxxxxxx's negative answers did not add any significant weight to his defense. He did not claim he was a man of impeccable character, but, rather, that he was an addict using large amounts of cocaine. Nor did his nondisclosure of the fact that he had spent three or four separate nights in jail following those other arrests add any discernible strength to his claim that he had been able to recover from his addiction while spending about five weeks in jail following his arrest in this case.

Moreover, although defense counsel's bungled questioning about arrests may have been inexcusable, Mr. xxxxxxx's answers were not. Counsel explained to the judge that in preparing Mr. xxxxxxx to testify, he had asked his client whether he had been arrested "and" convicted on other occasions, to which questions the negative answers were undisputedly correct (II. 180). Counsel asserted credibly that Mr. xxxxxxx had not meant to deceive the jury, and during cross-examination, Mr. xxxxxxx confirmed that he had misunderstood the questions as defense counsel asked them in court (II. 181-182, 187, 189-190). The judge did not express any doubt about counsel's explanation, and he recognized that there would be "some problem in terms of prejudice," but he permitted the cross-examination nevertheless, because the "door has been opened" (II. 182-183).

This ruling was a patent abuse of discretion. The judge clearly did not heed the requirement of Fed. R. Evid. 403 that he balance the negligible damage that Mr. xxxxxxx's inaccurate answers had done to the Government's case (and hence the marginal legitimate probative value of using cross-examination to set the record straight) against the great danger of serious prejudice to Mr. xxxxxxx that cross-examination about the arrests would pose. See United States v. Lewis, 482 F.2d 632, 643-644 (D.C. Cir. 1973). As this Court has long recognized, "The doctrine of curative admissibility is one dangerously prone to overuse." United States v. McClain, 440 F.2d 241, 244 (D.C. Cir. 1971). The judge's reflexive, unqualified application of the "open-door" principle was not legally justified.

This was not a case like United States v. Farias-Farias, 925 F.2d 805, 810-811 (5th Cir. 1991), where the court held, first, that the defendant's false denial of prior arrests (when questioned by customs agents) made the nature of the arrests and the fact of the denial relevant as evidence of consciousness of guilt, and second, that the judge's limiting instructions minimized any potential prejudice. Also distinguishable is United States v. Vigliatura, supra, 878 F.2d at 1350-1351, where the Eleventh Circuit found "improper" the prosecutor's inquiry into and exploitation of the defendant's prior arrest following defense counsel's elicitation of his denial of other "charges," but held that the trial was fair overall and thus that reversal was not required under the plain error standard. And, of course, because Mr. xxxxxxx did not present a good-character defense, his reputation, to which his arrests might have been relevant (see e.g., Stewart v. United States, 104 F.2d 234 (D.C. Cir. 1939)), was not in issue.

A fair alternative to what transpired below could easily have been devised if the judge had recognized the gravity of the danger at hand. The problem was discussed before cross-examination began. Defense counsel could simply have been permitted to continue direct examination and elicit both his client's explanation that he had misunderstood the questions and his corrected testimony that he had been arrested on three or four other occasions and had spent the following nights in jail, but that he had not been convicted in those cases. There was no need, in any event, for the jury to learn the nature of the charges or to hear Mr. xxxxxxx's explanations of why they were or would be dismissed. If the judge felt bound to let the prosecutor correct the record on cross-examination, the scope of his inquiry should have been strictly limited to minimize possible prejudice. See United States v. Lara, 956 F.2d 994, 996-997 (10th Cir. 1992) (cross-examination properly allowed to correct misstatement that there had been no other prosecutions, but particulars of charges barred); United States v. Tumblin, 551 F.2d 1001, 1004-1005 (5th Cir. 1977) (reversal required because prosecutor exceeded reasonable scope of questioning about defendant's prior convictions and confinement, and he also unfairly suggested that defendant's criminal history reflected adversely on his character).

Instead of being cautioned, however, the prosecutor was permitted free rein, and he took it with an unconscionable vengeance, bringing out the nature of each charge, turning defense counsel's negligence and Mr. xxxxxxx's confusion into a purported attempt to deceive the jury about his criminal record, and, even worse, suggesting to the jury that Mr. xxxxxxx's claims of innocence in the other cases constituted a pattern of false denials that he repeated in the instant case:

. . . . Every single case he's just an innocent guy who has been tricked by the police. In the other case, the pending case, he claims the police hit him. That's why he was arrested.

What does he come in here and tell you? Story number four: they did it here too.

(II. 241-242). The record contains no hint that the prosecutor had a good faith basis for believing that Mr. xxxxxxx's prior cases were improperly dismissed. And Mr. xxxxxxx's testimony about the facts and dispositions of the cases would never have been in evidence if the prosecutor had been compelled, or had possessed the good sense, to keep his cross-examination within reasonable bounds.

Using Mr. xxxxxxx's prior arrests to smear him was not the prosecutor's only misconduct. He also effectively gave his own factual, opinion testimony against Mr. xxxxxxx by arguing that his arrest photograph disproved his claim of crack addiction:

. . . . Does that look like a thin and drawn person who's been using crack heavily for two-and-a-half years? We have all seen them. They're so thin you can see through them when they're turning sideways.

(II. 240; emphasis added) And he closed his rebuttal argument by admonishing the jury, "Don't get distracted by appeals to emotion and appeals to things that just don't matter. Consider the evidence and do the right thing" (II. 242; emphasis added). Both tactics were indisputably forbidden. United States v. Young, 470 U.S. 1, 17-19 (1985) (prosecutor's personal opinion may prejudice jury by suggesting that unpresented evidence supports conviction, and jury should not be exhorted to "do its job"). Because these remarks were not objected to, they may not independently require reversal, but they surely compounded the prejudice wreaked by the prosecutor's unfair exploitation of the improperly admitted evidence concerning Mr. xxxxxxx's other arrests.

B. The Erroneous Omission of Instructions on the Limited Relevance of Mr. xxxxxxx's Other Arrests

This Court wrote in United States v. Copelin, 996 F.2d 379, 385 (D.C. Cir. 1993), that "there is a huge presumption of plain error when a trial judge omits a cautionary instruction when admitting impeachment evidence to which a jury could give substantial effect against a criminal defendant." The impeachment evidence in issue there was defendant's admission on cross-examination, in logical conflict with his earlier testimony that he had never seen "actual" drugs, that he had twice tested positive for cocaine. Rejecting the Government's contention that Copelin was the "rare" case where a limiting instruction was unnecessary, the Court reasoned,

The information regarding Mr. Copelin's positive drug tests was "bad acts" evidence of the most prejudicial sort. Not only did the revelation that he used cocaine on other occasions subject him to the opprobrium that members of the jury may have felt toward drug users, but it also tended to bolster the government's contention that he was the man who sold the same drug to Officer Moore on the day in question.

Id.

Here, limiting instructions were at least as necessary as they were in Copelin. Mr. xxxxxxx's other arrests involved a "cocaine charge" and allegations of robbery, assault with a dangerous weapon, and hindering a police officer. Even without inflammatory comments by the prosecutor, the jurors were apt to draw the impermissible inference that someone with such a history was likely to be a drug dealer, as the Government alleged. In the instant case, as in Copelin, reversal is required.

Very recently, in United States v. Brawner, No. 91-3332, slip opinion at 7-10 (D.C. Cir. August 26, 1994), the Court declined to follow Copelin. Brawner was superficially similar to the case at bar in that defense counsel there asked the defendant about his prior convictions on direct examination. In Brawner, however, the convictions, which the defendant admitted, were more than ten years past, "thus diminishing the chance that the present jury would view Brawner as a 'bad man'." Id. at 7-8. Moreover, the judge's final jury charge there did include instructions limiting consideration of the convictions, and, as the Court held, if the trial judge had intervened to give the jury contemporaneous limiting instructions, it would have defeated defense counsel's manifest strategy of minimizing their impact by revealing them on direct examination. Id. at 4, 8. Accordingly, in Brawner the Court concluded (by "unanimous agreement" upon circulation of the holding to all the Court's judges) that "Copelin is inapplicable to cases in which the defendant's prior bad acts are introduced into evidence by the defense rather than by the prosecution." Id. at 2*, 9.

Here, defense counsel did not elicit testimony about Mr. xxxxxxx's other arrests, nor did he question Mr. xxxxxxx about arrests "or" convictions pursuant to a cognizable, rational strategy. As discussed above, the subject of Mr. xxxxxxx's arrests was not inherently a legitimate topic for cross-examination. Defense counsel knew that, and he clearly did not want the jury to learn about Mr. xxxxxxx's arrests. He only wanted the jury to know that Mr. xxxxxxx had no prior convictions, which was a fact with some bearing on his credibility. Counsel claimed that his use of the disjunctive "or" was a mistake; he meant to ask about arrests "and" convictions. That claim was credible on its face, and the judge did not reject it. Defense counsel strongly protested that cross-examination about the arrests would be prejudicial (II. 182-183). Then, no limiting instructions having been given, the prosecutor made sure the jury was prejudiced. It would be most unfair and unreasonable to extend to the instant case Brawner's exception to the Copelin requirement that limiting instructions be given, even without a defense request, where the jury clearly may make improper use of evidence admitted only for impeachment.

The properly admitted evidence against Mr. xxxxxxx was not overwhelming. Absent the prejudice resulting from the admission and exploitation of the evidence of Mr. xxxxxxx's other arrests, the jury might well have found, in light of Mr. xxxxxxx's testimony and the discrepancies in the Government's case, that a reasonable

doubt existed as to his guilt. The conviction should not stand.



CONCLUSION

For the reasons stated above, the judgment should be reversed and a new trial ordered.

Respectfully submitted,



A. J. KRAMER

FEDERAL PUBLIC DEFENDER







________________________________

Allen E. Burns

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500





CERTIFICATE AS TO LENGTH OF BRIEF



I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).







_________________________________

Allen E. Burns







CERTIFICATE OF SERVICE



I HEREBY CERTIFY that on October 5, 1994, two copies of the foregoing brief for appellant and one copy of the accompanying appendix for appellant were hand-delivered to the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.







________________________________

Allen E. Burns















CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to Circuit Rule 28(a)(1), appellant, Donnie M. xxxxxxx, states as follows:

A. Parties and Amici

The parties on this appeal are appellant, Donnie M. xxxxxxx, and appellee, the United States of America ("the Government"). There are no intervenors or amici.

B. Rulings Under Review

This case was tried before a jury, the Hon. Harold H. Greene, United States District Judge, presiding, from January 14 through 16, 1992. The matters in issue on appeal are: (1) the judge's admission of the Government's drug exhibit despite unresolved questions about the integrity of the chain of custody (Transcript of January 14, 1992 at 71, included in Appendix); and (2) the judge's permitting the prosecutor to cross-examine Mr. xxxxxxx extensively about his other arrests, the prosecutor's emphasis on and exploitation of the testimony about the arrests in rebuttal argument, and the judge's failure to issue limiting instructions concerning the jury's consideration of the arrests (pertinent transcript pages cited in Statement of Facts herein and included in Appendix).

C. Related Cases

There are no related cases, and the conviction has not previously been reviewed by the District Court or this Court.





1. In an order filed on May 12, 1993, Mr. xxxxxxx was resentenced so that he could file a notice of appeal, his trial attorney having failed, despite Mr. xxxxxxx's request, to do so. Mr. xxxxxxx's pro se notice of appeal following that order was filed on May 21, 1993.

2. The trial transcript consists of three consecutively paginated volumes, which correspond to the three days of trial and are designated "I," "II," and "III." These Roman numerals precede citations herein to pages in the respective volumes.

3. Cunningham did not remember whether a container was described, but Belden said the tip included a white medicine bottle (I. 49, 78).

4. The police expert on handling of drugs, Detective Dwight Rawls, testified as to the procedure for filling out the required information on a drug evidence envelope and on a DEA-7 form, either before or in conjunction with heat-sealing the envelope, and then depositing the heat-sealed envelope in a secure narcotics evidence locker (I. 90-92).

5. On cross-examination, the witness initially testified, "I guess I was accurate. I have never been told that I wasn't accurate," but then he repeated that he had "no idea" as to the scale's accuracy, and later, when pressed about what might have happened to the missing 10.55 grams, he said, "Obviously, the scale I had was not accurate" (I. 72, 73, 75).

6. Officer Bell testified at the hearing on Mr. xxxxxxx's motion to suppress physical evidence and denied strip searching the men, but the judge asserted in his memorandum that he believed these defense witnesses rather than Bell in this regard, and he found, "The police officers' behavior in conducting such a search was both unjustified and outrageous" (A. 13-14). He denied the motion to suppress, however, because the strip search was not the action that had turned up the drugs, and because he believed that a reliable informant had given the police probable cause to arrest Mr. xxxxxxx (A. 13-15). At trial, the prosecutor admitted that he did not put Bell on the stand because the judge had found him incredible (II. 213). Apparently, the judge denied defense counsel's request for a day's continuance to enforce his subpoena of Bell because counsel acknowledged that his purpose in calling Bell would be impeachment only (II. 213-214).

7. Mr. xxxxxxx testified further on cross-examination that he had smoked as much crack as he could get, as often as necessary to "keep [his] high up," that he had been smoking for about two and one-half years before his arrest in the instant case, and that he was able to get over his addiction by himself, without treatment, during his extended stay in jail after his arrest (II. 194-197).

8. Defense counsel did not object at this point, but he did object later, when the prosecutor stated that Ms. Tyler had been impeached with her prior testimony, and the judge admonished him, "Don't interrupt counsel again. It's up to the jury to determine what happened and not up to you" (II. 228). Defense counsel made no further objections to the prosecutor's closing arguments.

9. The Government might have tried to prove that the scale was or could have been inaccurate by producing it and so demonstrating, or having a expert testify about its characteristics. As the case stood, however, the only pertinent expert testimony was that of the chemist, who could not explain the weight discrepancy (I. 65).

10. Defense counsel moved for a judgment of acquittal after the Government rested, but he did not renew the motion at the close of all the evidence, so Mr. xxxxxxx's challenge to the legal sufficiency of the evidence to support his conviction, which if successful would have resulted in the termination of the prosecution, was not preserved for appellate review. United States v. Sherod, 960 F.2d 1073, 1076-1077 (D.C. Cir. 1992).