CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

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

A. Parties and Amici: The parties below were the defendant-appellant, Arnold xxxxx, and the plaintiff-appellee, the United States of America. There are no amici.

B. Rulings Under Review: The district court failed to grant a mistrial during the government's rebuttal closing argument when the prosecutor commented on Mr. xxxxx's failure to testify, expressed his opinion on Mr. xxxxx's guilt, and cast aspirations on Mr. xxxxx for exercising his constitutional right to trial. The district court denied a defense request for a psychological examination of the government's key witness against Mr. xxxxx, a juvenile, and would not even order production of the witness' Youth Services Administration records for an in camera review, thereby restricting Mr. xxxxx's constitutional right of cross-examination.

The district court failed to grant a mistrial when the government's key witness against Mr. xxxxx testified about another court case pending against Mr. xxxxx.

The district court permitted the government to adduce improper rebuttal evidence which did not rebut any of the evidence presented during the defense case.

C. Related Cases: The case has not been before this Court or any other court previously, nor is counsel aware of any related cases.



TABLE OF CONTENTS



ISSUES PRESENTED



JURISDICTION



STATUTES AND RULES



STATEMENT OF THE CASE



Proceedings Below Statement of Facts

A. The Evidence At Trial

The Government's Evidence

The Juvenile's Testimony

The Government's Other Evidence

The Defense Case

The Government's Rebuttal Evidence

B. Trial Issues

ARGUMENT

Summary of Argument

Discussion

I. The Trial Court Erred In Failing To Grant A Mistrial During The Government's Rebuttal Portion Of Its Closing Argument When The Prosecutor Expressed His Opinion On Mr. xxxxx's Guilt And Commented On His Failure To Testify

II. The Trial Court Erred In Refusing The Defense Request To Examine The Key Witness' Records and For A Psychological Examination of Her

III. The Trial Court Erred In Failing To Grant A Mistrial When The Government's Key Witness Mentioned Mr. xxxxx's Pending Court Case

IV. The Trial Court Erred In Admitting Improper Rebuttal Evidence

CONCLUSION

CERTIFICATE OF SERVICE

ADDENDUM



TABLE OF AUTHORITIES

Cases

Barnes v. Jones,

665 F.2d 427 (2d Cir. 1981), 457 U.S. 1104 (1982),

rev'd on other grounds, 463 U.S. 745 (1983)23



Berger v. United States,

295 U.S. 78 (1935) 15



Bruton v. United States,

391 U.S. 123 (1968) 20



Chambers v. Mississippi,

410 U.S. 84 (1973) 22, 25



Davis v. Alaska,

415 U.S. 308 (1974) 18, 21, 22, 25



Giglio v. United States,

405 U.S. 150 (1972) 21



Giles v. Maryland,

386 U.S. 66 (1967) 21



Griffin v. California,

380 U.S. 609 (1965) 14



Hamilton v. Nix,

809 F.2d 463 (8th Cir. 1987),

cert. denied,483 U.S. 1023 (1987) 28



In re Gault,

387 U.S. 1 (1967) 20



Luttrell v. United States,

320 F.2d 462 (5th Cir. 1963) 28



Michelson v. United States,

335 U.S. 469 (1948) 26



Napue v. Illinois,

360 U.S. 264 (1959) 21



United States ex rel. Burke v. Greer,

756 F.2d 1295 (7th Cir. 1985) 16



United States ex rel. Williams v. Lane,

645 F.Supp. 740 (N.D. Ill. 1986) 16





United States v. Ailstock,

546 F.2d 1285 (6th Cir. 1976) 27



United States v. Anderson,

881 F.2d 1128 (D.C. Cir. 1989) 19



United States v. Baez,

703 F.2d 453 (10th Cir. 1983) 14



United States v. Benn,

476 F.2d 1127 (D.C. Cir. 1973) 23, 24



United States v. Buege,

578 F.2d 187 (7th Cir.),

cert. denied, 439 U.S. 871 (1978) 16



United States v. Countryman,

758 F.2d 574 (11th Cir. 1985) 14, 16



United States v. Crosby,

462 F.2d 1201 (D.C. Cir. 1972) 20



United States v. Daniels,

770 F.2d 1111 (D.C. Cir. 1985) 27



United States v. Eccleston,

961 F.2d 955 (D.C. Cir. 1992) 26



United States v. Finis P. Ernst, Inc.,

509 F.2d 1256 (7th Cir. 1975), cert. denied, sub nom.

Modern Asphalt Paving and Construction Company v. United States, 423 U.S. 874 (1975), Finis P. Ernst v. United States, 423 U.S. 893 (1975) 28



United States v. Flannery,

451 F.2d 880 (1st Cir. 1971) 18



United States v. Leonard,

494 F.2d 955 (D.C. Cir. 1974) 19



United States v. Lindstrom,

698 F.2d 1154 (11th Cir. 1983) 19



United States v. Melton,

739 F.2d 576 (11th Cir. 1984) 14



United States v. Partin,

493 F.2d 750 (5th Cir. 1974) 20



United States v. Poston,

430 F.2d 706 (6th Cir. 1970) 27



United States v. Ray,

731 F.2d 1361 (9th Cir. 1984) 19



United States v. Rivera-Santiago,

872 F.2d 1073 (1st Cir.)

cert. denied sub nom., Cautro-Poupart v. United States,

492 U.S. 910 (1989), Romero-Lopez, 493 U.S. 832 (1989) 24



United States v. Rodriguez,

627 F.2d 110 (7th Cir. 1980) 17, 18



United States v. Sanchez-Robles,

927 F.2d 1070 (9th Cir. 1991) 28



United States v. Smith,

806 F.2d 971 (10th Cir. 1986) 14



United States v. Williams,

521 F.2d 950 (D.C. Cir. 1975) 16, 17



Villaromen v. United States,

184 F.2d 261 (D.C. Cir. 1950) 21



Washington v. Texas,

388 U.S. 14 (1967) 22



Statutes



21 U.S.C. 841(a)(1)



21 U.S.C. 841(b)(1)(A)(iii)



21 U.S.C. 861



Other Authorities





3A J. Wigmore, Evidence 940,

p. 775 (Clayborn rev. 1970)



Testimonial Competence and Credibility,

34 Geo.Wash.L.Rev. 53, 68 (1965)



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, etc., 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 the trial court erred in failing to grant a mistrial when in his rebuttal closing argument the prosecutor gave his opinion as to Mr. xxxxx's guilt and commented on Mr. xxxxx's failure to testify?

II. Whether the trial court erred in precluding defense access to the juvenile file of the government's key witness and in refusing to order a psychological evaluation of that witness?

III. Whether the trial court erred in denying the defense motion for a mistrial when the government's key witness mentioned that appellant had another pending court case?

IV. Whether the trial court erred in permitting the government to adduce improper rebuttal evidence?





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No.





UNITED STATES OF AMERICA, Appellee,



v.

ARNOLD xxxxx Appellant,





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





BRIEF FOR APPELLANT







STATEMENT OF THE CASE

Proceedings Below

Arnold xxxxx was arrested with a juvenile, Michelle xxxxxx, on March 11, 1991. He was indicted on April 9, 1991, in a two-count indictment. Count One charged possession with intent to distribute over fifty grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii). Count Two charged unlawful employment of a minor to possess with the intent to distribute cocaine base, in violation of 21 U.S.C. 861. The trial began on September 5, 1991. On September 10, 1991 the jury convicted Mr. xxxxx of Count One, but it could not reach a verdict on Count Two. Accordingly, the government dismissed that count. He was sentenced on November 22, 1991 to 121 months' imprisonment followed by a term of five years supervised release. A notice of appeal was timely filed on December 2, 1991.



Statement of Facts

A. The Evidence At Trial



The Government's Evidence

The Juvenile's Testimony

Based upon claims made by a then-fifteen year old girl, Michelle xxxxxx, Mr. xxxxx was arrested on March 11, 1991 after two Metropolitan Police Department officers, John J. Brennan and Gerald Crispino, working as part of an interdiction team, boarded a bus that had arrived from New York at the bus station at 1005 First Street, N.E. in Washington D.C. Tr. (1) 87-89, 91, 119-120, Tr. II 36. Initially, the police interviewed xxxxxx and searched her tote bag, (2) inside of which they found a baby bottle that contained cocaine. Tr. 89-90, 95-96, 120-121, 122. xxxxxx was then arrested. Tr. 91, 125. (3) After Sergeant Brennan asked xxxxxx whether she was carrying the drugs for anyone, (4) Tr. II 34, she claimed that she was carrying them for "Arnold." Tr. 91, 107, 130-131, Tr. II 35. After her arrest, xxxxxx re-boarded the bus with the police, pointed to Mr. xxxxx and identified him as being the "Arnold" for whom she claimed to have been carrying the drugs, although she did not know his last name nor his telephone number. Tr. 91-94, 107-108, 126-127, Tr. II 35, 45-46. (5) The nature of this minimal identification supported the defense theory that xxxxxx to Mr. xxxxx simply because she thought that by implicating someone else, she would be treated more leniently, and accordingly she identified the only person on the bus she recognized. Tr. 84-86, Tr. III 40, 42-43. Moreover, xxxxxx did not implicate Mr. xxxxx until after she, herself, had been arrested. Tr. 107, 126-127, 130-131, Tr. II 34-35.

The defense theory of the case was that xxxxxx was an independent actor who implicated Mr. xxxxx, whose last name she did not know, to save herself, only after the police arrested her and had caught her in various lies. Tr. 83-86, Tr. II 55, Tr. III 41-45. xxxxxx conceded that she had no trouble with telling lies when she thought it would help her. Tr. II 61. The defense contended that xxxxxx implicated Mr. xxxxx because, of all the people on the bus, he was the only one xxxxxx recognized, but that she recognized him only as a familiar face from her neighborhood. Tr. II 51, 55-56, Tr. III 40, 42-43. It was Mr. xxxxx's view that not until three hours after her arrest, did xxxxxx fabricate a story which implicated him. Tr. 84-85, Tr. III 42-43. Because her statement was tape-recorded and she had reviewed that statement before testifying at trial, the defense argued that she was simply repeating the same false story she had given the police on the day of her arrest. Tr. III 43-44. (6)

xxxxxx admitted that she spent the three days prior to the beginning of the trial preparing with the prosecutor, although that was not the first time she had met with him about the case. Tr. II 42-44. In addition, shortly before testifying she had listened to the tape recording of the statement she had given the police on the day of her arrest, reviewed the transcript of that recording and was familiar with it. Tr. II 44. The statement itself was given after she had had a lot of time to think and when she was nervous and scared, Tr. 112, Tr. II 36, 44-45. xxxxxx admitted that she had lied to the police when she told them that there were no drugs in her bag, had lied on the day of her arrest when she described Tonya xxxxxx as her cousin, and had lied when she told the police what grade she was in at the time of her arrest. Tr. II 46, 48, 49-50. (7) She also admitted that she had not said anything about "Arnold" at the outset when the police first sought to search her bag, although she claimed to have been fully aware at that time that she was carrying drugs in that bag. Tr. II 53. She further conceded that the reason she allowed the police to search her bag was because she knew she was in a lot of trouble and she was scared, and she believed that if she cooperated with the police and told them that someone else had given her the drugs in the bag, they would release her. Tr. II 53, 55-6. Finally, the defense contended that xxxxxx testified as she did because she wanted to avoid being re-incarcerated if she violated the terms and conditions of her probation and that she hoped the United States Attorney's Office would intervene on her behalf if it ever became necessary. (8) Tr. II 59.

The Government's Other Evidence

There was little meaningful corroboration for xxxxxx' claim that she had been transporting the drugs found in the baby bottle for Mr. xxxxx. He and xxxxxx had not been seated together on the bus, Tr. 92, 93, 104, 122, Tr. II 33, 51. (9) Moreover, Mr. xxxxx had not taken the opportunity, while he saw the police questioning xxxxxx, to get off the bus, nor did he try to evade the police or flee when they approached him and spoke to him. Tr. 92, 108-109, 132, Tr. II 35. In addition, both Mr. xxxxx and xxxxxx were each carrying their own respective tickets. Tr. 104-105, Tr. II 51-52. According to the police officers' testimony there was no evidence in the tote bag linking it to Mr. xxxxx, Tr. 105, 129-130, nor was he ever seen touching it, reaching for it or having any contact with it. Tr. 105, 132-133. (10) Likewise, Mr. xxxxx was never observed having any contact with xxxxxx, handing anything to her, or receiving anything from her. Tr. 106, 133. When Mr. xxxxx was searched after his arrest nothing was found on him with xxxxxx' name on it, Tr. 106. Similarly, there was no fingerprint evidence to support the claim that Mr. xxxxx had anything to do with the drugs the police recovered from xxxxxx' bag. Tr. 111-112, 125, 131.

In sum, the government's case against Mr. xxxxx rested almost entirely upon the word of Michelle xxxxxx, Tr. 84 (11). The circumstantial evidence was minimal, including that Mr. xxxxx and xxxxxx had the same points of origin and the same destinations, Tr. 93, Tr. II 106, and that their tickets were sequential and purchased one minute apart. Tr. 94, 98-100, Tr. II 107-109. The government also contended that Mr. xxxxx had no luggage, Tr. 114, Tr. II 29, 37, 109-110, although the police officers failed to determine whether there was any luggage belonging to Mr. xxxxx in the luggage compartment of the bus. Tr. 114-115.

The government's evidence did not establish how many others on the bus were also travelling to the same destination as indicated on the tickets recovered from Mr. xxxxx and xxxxxx. Tr. 104. Emma Gray, a Greyhound employee called by the government, stated that without going through the tickets of each passenger on the bus, there was no way to determine how many people on a given bus were travelling between New York and Winston-Salem, North Carolina. Tr. II 111.

The government called xxxxxx' mother, Anna xxxxxx, Tr. II 76-77, who testified that in March of 1991 her daughter sometimes stayed with Tonya xxxxxx in Manhattan, Tr. II 77, and that Anna xxxxxx had seen Arnold xxxxx in the neighborhood, as well as having seen him once with her daughter at her (Ms. xxxxxx') house. Tr. II 77-80. As to the night of March 11, Anna xxxxxx stated that her daughter had come to her house, gotten a bag of clothes and left. Tr. II 80-81. On direct examination Anna xxxxxx also indicated that she had not previously seen her daughter with the black tote bag nor with the drugs the police seized. Tr. II 81-83. (12) Anna xxxxxx further claimed that, to her knowledge, her daughter, Michelle, had not previously travelled to Winston-Salem nor anywhere in North Carolina. Tr. II 83-84. Finally, Anna xxxxxx testified about a conversation she had with Mr. xxxxx in the Bronx after her daughter's arrest in which she confronted him with having put her daughter into her legal predicament, to which Mr. xxxxx allegedly replied that he had not done anything to her daughter, but that her daughter had done it to herself. Tr. II 84-85. On cross-examination Anna xxxxxx admitted that she had had trouble controlling her daughter's behavior. Tr. II 86-87.

The Defense Case

The defense called a single witness, Glenn Gutzmore, as both a character witness and as a fact witness. Mr. Gutzmore worked as a food service instructor and prior to that as a restaurant manager, both in New York. Tr. II 116-117. He was the chair of the board of trustees of the Bedford United Methodist Church. Tr. II 117. He had known Mr. xxxxx for five to ten years and Mr. Gutzmore testified that he took Mr. xxxxx to the bus station in New York on March 11, 1991 in Gutzmore's car and that he and Mr. xxxxx had gone there alone. (13)

Tr. II 117-118. He further offered his view that Mr. xxxxx was a law-abiding citizen and gave the basis for that opinion. Tr. II 118. On cross-examination, the government attempted to establish Mr. Gutzmore's bias in favor of Mr. xxxxx, to impugn the basis of the opinion about Mr. xxxxx's character, Tr. II 122-124, 127-128, (14) and to establish that, to Mr. Gutzmore's knowledge, Mr. xxxxx was not working in the period before his arrest. Tr. II 123-124. Mr. Gutzmore stated that he did not know where Mr. xxxxx was going when he took him to the bus station in New York, but that Mr. Gutzmore had given Mr. xxxxx rides to other places previously. Tr. II 124-125, 128. Mr. Gutzmore indicated that he did not know Michelle xxxxxx. Tr. II 126-127. Over objection, Tr. II 119-121, on cross-examination Mr. Gutzmore testified that he was not aware of any other occasion on which Mr. xxxxx had transported drugs from the Bronx, nor when he had used a rental car to leave the jurisdiction. Tr. II 128-129.

 

The Government's Rebuttal Evidence

Over defense objection, Tr. III 4-7, the government called Tonya xxxxxx as a rebuttal witness. (15) On direct examination, Ms. xxxxxx testified that she had known xxxxxx for three years and that xxxxxx had lived with xxxxxx. Tr. III 9-10. She said she had seen xxxxxx in New York the night before her arrest and that xxxxxx had told xxxxxx that xxxxxx was going to carry some drugs for Arnold. Tr. III 10-12. Over defense objection, xxxxxx testified that she got angry and urged xxxxxx not to go, but that xxxxxx left anyway without any luggage. Tr. III 12-13. On cross-examination Mr. xxxxx sought to establish xxxxxx's bias in favor of xxxxxx. Tr. III 14-15. In addition, xxxxxx conceded that she did not see xxxxxx after she left her apartment. Tr. III 16.

B. Trial Issues

In his rebuttal closing the prosecutor argued that the "case boil[ed] down to Michelle xxxxxx." Tr. III 62. In the next sentence he told the jury that xxxxxx "had accepted her responsibility" by pleading guilty, and then followed that by telling the jury that "Arnold xxxxx ha[d] not accepted responsibility." Tr. III 62. Although defense counsel's objection to that comment was sustained and the jury was "instructed to disregard that comment," Tr. III 62, Mr. xxxxx's motion for a mistrial was denied. Tr. III 62. This was error.

In part based upon a suicide attempt by xxxxxx during her incarceration in the District, Tr. 3-7, 115-117, prior to trial the defense filed a written motion seeking to have xxxxxx examined by a psychologist regarding both her competence to testify as well as her credibility. App. 6-11, Tr. 5-6. The trial court denied the defense request, Tr. 3, and also denied the defense request for an in camera inspection of xxxxxx' records from the Youth Services Administration, the agency responsible for her custody while she was incarcerated in one of the juvenile correctional facilities in the District. Tr. 3-7. The defense explained that without the juvenile records it would not be able to complete any impeachment of xxxxxx if she denied the suicide attempt. Tr. 6. Indeed, that is precisely what happened at trial. (16) xxxxxx denied the suicide attempt, Tr. II 57-58, (17) and the defense was without recourse to demonstrate the falsity of her denial. Moreover, xxxxxx' credibility as a whole was at issue and was suspect and Mr. xxxxx was denied the opportunity to fully discredit that credibility before the jury.

During her direct examination, xxxxxx was asked about what Mr. xxxxx supposedly said to her about their return trip from North Carolina to New York. Tr. II 25. She responded that she and Mr. xxxxx "were suppose[d] to fly back home that same day because Arnold had a court date in New York." Tr. II 25. The defense moved for a mistrial, Tr. II 25-26, 28, which the trial court denied. Tr. II 26, 28. Instead, the district court instructed the jury to disregard the comment, Tr. II 26, 29, and advised them that there was no evidence that Mr. xxxxx was due in court for anything other than a minor traffic parking matter. Tr. II 29. xxxxxx' comment was tantamount to allowing the jury to think that Mr. xxxxx had another pending court case. Thus, the reference to Mr. xxxxx's court date in New York was akin to similar act evidence inadmissible under Federal Rule of Evidence 404(b).

ARGUMENT

Summary of Argument

Mr. xxxxx was convicted based upon allegations made against him by a young teenager. There was only minimal circumstantial evidence to corroborate her testimony and even much of that was discredited during cross-examination of the arresting officers and the Greyhound employee the government called to provide circumstantial corroboration for the juvenile's testimony. Thus, the credibility of the juvenile, an admitted liar, was critical to Mr. xxxxx defending against the charges the government brought against him. Mr. xxxxx was denied a fair trial in several respects.

First, Mr. xxxxx was denied a fair trial when the prosecutor, in his rebuttal closing argument, referred to Mr. xxxxx;'s failure to testify, expressed his personal opinion about Mr. xxxxx's guilt, and cast aspirations on Mr. xxxxx for exercising his constitutional right to a jury trial. The prejudicial effect of these comments was incurable, and it was error to deny the defense's mistrial motion.

Second, because the credibility of the juvenile, xxxxxx, was so crucial, the district court should have ordered a mental health examination of her, or at a minimum should have examined mental health evaluations of her contained within her Youth Services Administration records, even on an in camera basis. The failure of the district court to take either course of action denied Mr. xxxxx a fair trial.

The district court had earlier erred in refusing to grant a mistrial after the government's key witness mentioned that Mr. xxxxx had another pending case, Mr. xxxxx was denied a fair trial and the district court's instruction to the jury was insufficient to cure the prejudice. Finally, the district court erred in permitting the government to call Tonya xxxxxx as a rebuttal witness.

Individually, each one of these errors by the district court prejudiced Mr. xxxxx and rendered his trial unfair. Even if, arguendo, this Court does not find that any single error was prejudicial enough to warrant reversal, surely in aggregate the cumulative effect of these errors mandates that Mr. xxxxx's conviction be reversed and that his case be remanded for a new trial.



Discussion

I. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL DURING THE GOVERNMENT'S REBUTTAL PORTION OF ITS CLOSING ARGUMENT WHEN THE PROSECUTOR EXPRESSED HIS OPINION ON MR. xxxxx'S GUILT AND COMMENTED ON HIS FAILURE TO TESTIFY.

The prosecutor's comment regarding Mr. xxxxx having failed to accept responsibility for violated the prohibition against a prosecutor expressing his opinion about the accused's guilt. In addition, the prosecutor's comment was not only a comment on Mr. xxxxx's failure to testify, in violation of Griffin v. California, 380 U.S. 609 (1965), but was also an effort to penalize Mr. xxxxx for exercising his constitutional right to put the government to its burden by proceeding to trial. Moreover, the effect of the comment was exacerbated by its juxtaposition to the prosecutor's statement that xxxxxx had accepted responsibility by entering a guilty plea. Using a co-defendant's plea of guilty as evidence of the accused's guilt is improper. United States v. Smith, 806 F.2d 971, 974-975 (10th Cir. 1986); United States v. Melton, 739 F.2d 576, 578 (11th Cir. 1984); United States v. Baez, 703 F.2d 453 (10th Cir. 1983). See also United States v. Countryman, 758 F.2d 574, 577 (11th Cir. 1985) ("When evidence has been admitted for one purpose, but not others, counsel's subsequent use of that evidence must remain consistent with the grounds upon which the evidence was accepted by the trial judge"). The prosecutor's improper reference to xxxxxx' guilty plea was analogous to the statement deemed reversible error in Smith in which the prosecutor argued that one of the government's witnesses who had been a co-conspirator of the accused "was man enough" to have pleaded guilty. 806 F.2d at 974.

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 comment in the present case was more than a hard blow; it was a foul one, and it exceeded the bounds of securing a conviction by legitimate means.

Moreover, the reference to his failure to testify was not indirect, especially given that it immediately followed the comment about xxxxxx having accepted hers. Even without calling into question the prosecutor's intent by arguing that xxxxxx had accepted her responsibility and Mr. xxxxx had failed to accept his, the jury "would naturally and necessarily" have understood the prosecutor's comment to cast aspirations on Mr. xxxxx's exercising his right to a jury trial and as an expression of the prosecutor's opinion that Mr. xxxxx was guilty. United States v. Williams, 521 F.2d 950, 953 (D.C. Cir. 1975). See also United States ex rel. Burke v. Greer, 756 F.2d 1295, 1300 (7th Cir. 1985). In a case where the evidence of Mr. xxxxx's guilt was far from overwhelming, and rested almost entirely upon the word of xxxxxx (and some less than persuasive circumstantial evidence), the district court's instruction was inadequate to cure the prejudice of the prosecutor's comment. (18) Cf. United States ex rel. Burke v. Greer, 756 F.2d at 1302 (to apply harmless error rule evidence of accused's guilt must be more than circumstantial; it must be overwhelming) (citations omitted). The district court's instruction merely told the jury to disregard the prosecutor's comment. It did not advise the jury not to consider xxxxxx' plea of guilty as any proof of Mr. xxxxx's guilt. Compare Countryman, 758 F.2d at 578. Likewise, it did not advise the jury of the limited purpose for which they could consider that guilty plea.

In United States ex rel. Williams v. Lane, 645 F.Supp. 740 (N.D. Ill. 1986), aff'd 826 F.2d 654 (7th Cir. 1987), the district court granted a petition for a writ of habeas corpus based upon the prosecutor's repeated references to accused's failure to testify. The district court noted that "evidence against the petitioner was not overwhelming and ... the trial court's cautionary instruction was insufficient to cure constitutional error". 645 F.Supp. at 745. Like the evidence in Williams, the evidence against Mr. xxxxx rested "principally" on the testimony of a single witness. 826 F.2d at 665. Accordingly, the prejudice of the prosecutor's comment during his rebuttal closing regarding that single witness' guilty plea was exacerbated. In Mr. xxxxx's case the prosecutor's comments were not harmless because the evidence of his guilt was far from overwhelming.

Indeed, in United States v. Rodriguez, 627 F.2d 110 (7th Cir. 1980), the Seventh Circuit reversed a defendant's conviction due to the prosecutor's comments during the rebuttal portion of his closing argument. The Court noted that "[e]ven subtle references to the fact that a defendant has not testified have been condemned." 627 F.2d at 112. As in this case, the improper comments by the prosecutor in Rodriguez came during the government's rebuttal closing argument, noted by the Seventh Circuit to be "the last opportunity of any counsel to address the jury." 627 F.2d at 111-112. In Rodriguez the Seventh Circuit explained the gravity of such comments by a prosecutor in closing by setting forth the First Circuit's approach to handling such transgressions:

That circuit ... adopt[ed] a rule that even a prosecutor's subtle comments would be held prejudicial as a matter of law. There would be no effort to weigh the evidence. A single exception was provided. No prejudice would necessarily be found, ... if the trial judge interrupted the argument, instructed the jury fully on the defendant's constitutional right not to testify and the jury's obligation not to draw unfavorable inferences, and, in addition, stated to the jury that the United States Attorney was guilty of misconduct. If the circumstances are not within the confines of that exception, reversal would be automatic.

627 F.2d at 112, citing United States v. Flannery, 451 F.2d 880 (1st Cir. 1971). Clearly the trial court's response to the improper comments of the prosecutor in Mr. xxxxx's case fell far short of the measures approved in Rodriguez. Accordingly, Mr. xxxxx's conviction should be reversed.

II. THE TRIAL COURT ERRED IN REFUSING TO GRANT THE DEFENSE REQUESTS A) TO EXAMINE THE KEY WITNESS' RECORDS AND B) THAT A PSYCHOLOGICAL EXAMINATION OF HER BE CONDUCTED.

The importance of cross-examination has been well recognized. As explained by the Supreme Court in Davis v. Alaska, 415 U.S. 308, 316 (1974), which, like the present case, involved accusations made by a juvenile against an adult:

Cross-examination is the principal means by which the believability of a witness and the truth of [her] 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). An accused must be given broad latitude in cross-examination when the government's case rests upon the credibility of a key witness. United States v. Ray, 731 F.2d 1361, 1364 (9th Cir. 1984). This Court has also recognized the critical nature of cross-examination. See e.g. United States v. Anderson, 881 F.2d 1128 (D.C. Cir. 1989); United States v. Leonard, 494 F.2d 955 (D.C. Cir. 1974).

In United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983), the Eleventh Circuit reversed a conviction for the trial court's failure to permit defense counsel to cross-examine the government's chief witness about her mental health history and to permit the defense access to that witness' mental health records. The Court explained the critical nature of access to a government witness' mental health history to effective confrontation of the government's evidence:

Certain forms of mental disorder have high probative value on the issue of credibility ... Mental illness may tend to produce bias in a witness' testimony. A psychotic's veracity may be impaired by lack of capacity to observe, correlate or recollect actual events. A paranoid person may interpret a reality skewed by suspicion, antipathies or fantasies. A schizophrenic may have difficulty distinguishing fact from fantasy and may have his memory distorted by delusions, hallucinations and paranoid thinking. A paranoid schizophrenic, though he may appear normal and his judgment on matters outside his delusional system may remain intact, may harbor delusions of grandeur or persecution that grossly distort his reactions to events.

Whether called "collateral" or not, the issue of a witness' credibility is committed to the providence of the jury. Although the use of psychiatric evidence "does not fall within the traditional pattern of impeachment, the law should be flexible enough to make use of new resources."

698 F.2d at 1160-1161, quoting, Testimonial Competence and Credibility, 34 Geo.Wash.L.Rev. 53, 68 (1965). See also United States v. Partin, 493 F.2d 750, 762-765 (5th Cir. 1974) (reversing conviction for precluding defense from using medical records of key government witness when those records were relevant to the witness' mental health, and therefore his credibility); United States v. Crosby, 462 F.2d 1201 (D.C. Cir. 1972) (holding that trial court erred in failing to examine key government witness' medical records).

According to xxxxxx she was an accomplice of Mr. xxxxx's. As a juvenile and an accomplice, her accusations were inherently suspect and mandated disclosure of the requested information so that her veracity could have been fully probed. Cf. In re Gault, 387 U.S. 1, 55 (1967) ("the greatest care must be taken to assure that [a juvenile's admission] was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights [and] adolescent fantasy, fright, [and] despair"); Bruton v. United States, 391 U.S. 123, 136 (1968) (the "credibility" of "incriminations" made by a co-defendant are "inevitably suspect, a fact recognized when ... the jury is instructed to weigh [accomplice] testimony carefully given the recognized motivation to shift the blame to others.")

The defense requests for a mental health examination of xxxxxx and for access to any mental health evaluations that were contained within her Youth Services Administration files were directly relevant to xxxxxx' credibility and bias. Mr. xxxxx had a constitutional right to explore her bias and credibility on cross-examination. Giglio v. United States, 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66 (1967); Napue v. Illinois, 360 U.S. 264 (1959) (denial of due process occurred where prosecutor failed to correct prosecution witness who testified perjuriously that he had received no promise of consideration in exchange for his testimony). See also Villaromen v. United States, 184 F.2d 261, 262 (D.C. Cir. 1950) ("Bias of a witness is always relevant"). Like the accused in Davis, Mr. xxxxx was denied the opportunity "to make a record from which to argue why [the juvenile] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." 415 U.S. at 318 (emphasis in original). As in Davis, Mr. xxxxx was unable to make his cross-examination of xxxxxx regarding her mental instability "effective ... [because he was not] permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Id.

The government's case against Mr. xxxxx required the jury to find Michelle xxxxxx' testimony credible beyond a reasonable doubt. xxxxxx' encounter with the police demonstrated that she was far from irreproachable. Prior to seeing Mr. xxxxx the officers had interviewed xxxxxx on the same bus. Tr. 89, 120-121, Tr. II 33-34. Before the police found the drugs in her tote bag, xxxxxx had lied about whether she was carrying any drugs in the bag. Tr. 106-107, 122, 129, Tr. II 33-34, 46. Similarly, before she was arrested she told the police that she was travelling alone. Tr. 107, 122, 129. It was not until after she had been arrested and the police had told her that she was in a lot of trouble, Tr. II 34, that xxxxxx implicated Mr. xxxxx in the charged offenses, Tr. 91, 107, 126-127, 130-131, Tr. II 34-35, and claimed that she was travelling with him. The corroboration for her contention that they were travelling together was extremely weak and was undercut by cross-examination of the government's witnesses. Tr. 104-105, 114-115, Tr. II 51, 110-111. Accordingly, the ability to meaningfully cross-examine xxxxxx was critical to the defense and that ability was curtailed by the trial court's ruling precluding access to information about her mental state which could have impugned her credibility.

Pursuant to his Sixth Amendment rights of confrontation, (19) and to present a defense, (20) the trial court should have granted the motion for a psychological examination of xxxxxx as well as access to her Youth Services Administration records, which would have contained a mental health assessment of xxxxxx. Tr. 3-7, 115-117. Cf. 18 U.S.C. 3509(c)(9). (21) Other than xxxxxx' word, the only additional evidence the government had linking Mr. xxxxx to xxxxxx were two sequentially numbered bus tickets for travel between New York City and Winston-Salem, North Carolina.

Mr. xxxxx was never seen speaking to xxxxxx, handing her anything, nor receiving anything from her. She and Mr. xxxxx were not seated next to one another on the bus and he was never seen touching, carrying, nor reaching for the bag in which the drugs were found. Moreover, there was no credible evidence that anything in the bag was connected with Mr. xxxxx. Specifically, neither men's clothing nor any papers belonging to Mr. xxxxx were found in the bag. Likewise, there was nothing recovered from xxxxxx that had Mr. xxxxx's name on it. Because it was largely her word upon which the government relied in its effort to have the jury convict Mr. xxxxx, it was critical to assure that the jury was fully aware of the various factors that called her credibility into serious question. Access to any data impugning her mental health and a court-ordered psychological examination were critical to the defense's effort to cast doubt upon xxxxxx' credibility.

Again, the central issue at trial was xxxxxx' credibility. In United States v. Benn, 476 F.2d 1127, 1130 (D.C. Cir. 1973) this Court recognized that a court-ordered psychological examination of a key government witness could "aid the jury in assessing credibility." See also Barnes v. Jones, 665 F.2d 427, 435 (2d Cir. 1981) ("evidence relevant to a complainant's mental condition may be admissible on the issue of credibility") (citation omitted), 457 U.S. 1104 (1982), rev'd on other grounds, 463 U.S. 745 (1983). Cf. United States v. Rivera-Santiago, 872 F.2d 1073, 1084 (1st Cir.) ("cross-examination of a government witness' psychiatric history is a proper subject of cross-examination"), cert. denied sub nom., Cautro-Poupart v. United States, 492 U.S. 910 (1989), Romero-Lopez, 493 U.S. 832 (1989). In Benn this Court made clear that a mental health examination of a key government witness with a mental illness can be critical, reasoning that "[t]he jury may be aided in its task of assessing credibility by the results of a psychiatric examination, even when such an examination is not necessary to the judge's determination of competency." 476 F.2d at 1131. (22)

Here, unlike the circumstances in Benn, there was little, if any, significant corroboration of xxxxxx' accusations against Mr. xxxxx, and there was no way for the jury to learn of her mental health problems short of Mr. xxxxx having been permitted to use any of xxxxxx' mental health records to call her credibility into question and her undergoing a psychological examination. By denying Mr. xxxxx access to xxxxxx' Youth Services Administration records, within which would have been contained mental health information about her, and by failing to conduct even an in camera inspection of those records, the trial court unconstitutionally curtailed Mr. xxxxx's right to confront the government's key witness against him.

In Mr. xxxxx's case the record is devoid of any information from which this Court can determine whether he should have been permitted to cast doubt upon xxxxxx' credibility by bringing her mental health problems before the jury. Virtually the whole case against Mr. xxxxx rested upon xxxxxx' word; therefore, her mental state, both at the time she originally made the accusations against Mr. xxxxx and at the time she testified before the jury were relevant. Accordingly, Mr. xxxxx's Sixth Amendment right to confront the witnesses against him required his access to any of xxxxxx' mental health records, as well as that she undergo a court-ordered psychological examination. Chambers v. Mississippi, 410 U.S. 84 (1973); Davis v. Alaska, supra.

Mr. xxxxx's conviction should be reversed and a new trial ordered because he was precluded from effectively cross-examining the government's key witness. At a minimum, the district court should have ordered xxxxxx' Youth Services Administration records produced and conducted an in camera review of them. As alternative relief, if this Court does not order a new trial, Mr. xxxxx requests a remand to the district court with instructions to conduct an in camera inspection of any records bearing upon xxxxxx' mental health and to determine, after an evidentiary hearing, whether the nondisclosure of those records warrants a new trial.

III. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE GOVERNMENT'S KEY WITNESS MENTIONED MR. xxxxx'S PENDING COURT CASE.

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. In Mr. xxxxx's case, xxxxxx' reference to his alleged pending court case in New York confused the issues in the case, unfairly surprised Mr. xxxxx, and unduly prejudiced him. Moreover the trial court's limiting instruction was insufficient to cure the prejudice.

In United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1992), this Court adopted the approaches of the Fifth, Ninth and Eleventh Circuits in determining whether a mistrial is warranted when inadmissible testimony is elicited. Like the evidence against the accused in Eccleston, the government's evidence against Mr. xxxxx in this case was weak. It depended upon the jury crediting the testimony of xxxxxx. There was no other evidence "directly linking [Mr. xxxxx] to the charged offenses." 961 F.2d at 961. As in Eccleston, the "jury instruction [given by the district court regarding Mr. xxxxx's court case in New York] was insufficient to cure the highly prejudicial content of the inadmissible testimony." 961 F.2d at 962. Because the district court should have granted Mr. xxxxx's motion for a mistrial, his conviction should be reversed and the case remanded for a new trial.

In other contexts this Court has recognized the limited value of limiting instructions. See e.g. United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985) (expressing skepticism about the "efficacy of jury instructions in curing the prejudice caused by the introduction of other crimes evidence ... To tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond normal capacities ... and 'the naive assumption that prejudicial effects can be overcome by instructions to the jury' becomes more clearly than ever 'unmitigated fiction'"). Moreover, the fact that the inadmissible testimony was blurted out by xxxxxx did not render that testimony either admissible nor less prejudicial. United States v. Ailstock, 546 F.2d 1285 (6th Cir. 1976); United States v. Poston, 430 F.2d 706 (6th Cir. 1970). While in Ailstock the Sixth Circuit stated that a trial court's curative instruction could be sufficient to overcome the prejudicial impact of the inadmissible testimony, the trial court's instruction in Mr. xxxxx's case was not adequate and a mistrial should have been declared.

IV. THE TRIAL COURT ERRED IN ADMITTING IMPROPER REBUTTAL EVIDENCE

Ms. xxxxxx's testimony did not rebut anything raised by the defense through the only evidence presented by the defense, Mr. Gutzmore's testimony. Compare United States v. Sanchez-Robles, 927 F.2d 1070, 1078 (9th Cir. 1991) (rebuttal evidence that directly contradicted defense evidence deemed relevant); Luttrell v. United States, 320 F.2d 462 (5th Cir. 1963). It is well recognized that "[t]he function of rebuttal is to explain, repel, counteract or disprove the evidence of the adverse party." United States v. Finis P. Ernst, Inc., 509 F.2d 1256, 1263 (7th Cir. 1975), cert. denied, sub nom. Modern Asphalt Paving and Construction Company v. United States, 423 U.S. 874 (1975), Finis P. Ernst v. United States, 423 U.S. 893 (1975). Ms. xxxxxx's testimony did not accomplish these legitimate purposes and functions of rebuttal evidence.

In Luttrell the defense adduced evidence regarding the general practices of one who operated a distillery and the fact that the accused's behavior was not in conformity therewith. In rebuttal the government adduced testimony that the characteristics the defense witnesses had ascribed to the customary operation of a distillery were inaccurate. The Fifth Circuit held that the defense had "opened the door" to the government's rebuttal evidence and that that evidence properly countered the defense evidence. 320 F.2d at 464. In contrast, Ms. xxxxxx's testimony not only did not contradict Mr. Gutzmore's testimony, it had nothing to do with it. Cf. Hamilton v. Nix, 809 F.2d 463, 469 (8th Cir. 1987), cert. denied, 483 U.S. 1023 (1987). She did not testify that she saw Mr. xxxxx and xxxxxx take a taxi to the bus station together. She did not contradict Mr. Gutzmore's testimony in any way that it was he who had driven Mr. xxxxx to the bus station and that only the two of them were in the car.

The order of proof in a trial is important. Mr. xxxxx was entitled to have the opportunity to cross-examine the witness who supposedly corroborated the government's main witness, xxxxxx, prior to putting on any evidence in the defense case. The restrictions on rebuttal evidence are designed to avoid unfairness to the accused. Before putting on any evidence, the accused is entitled to know the government's entire case against him.

Moreover, admission of Ms. xxxxxx's testimony about what xxxxxx had told her was hearsay. It pertained to matters not that she had seen or otherwise perceived directly, but rather with what xxxxxx told her. As hearsay testimony that recounted what xxxxxx had said to Ms. xxxxxx, it was not admissible.



CONCLUSION



Mr. xxxxx's conviction should be reversed and his case remanded for a new trial.







Respectfully submitted,









Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Arnold xxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500







CERTIFICATE OF SERVICE





This is to certify that on this 29th day of September, 1992, 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. "Tr" refers to the official transcript of the proceedings on September 5, 1991. "Tr. II" refers to the transcript of the proceedings on September 6, 1991. "Tr. III" refers to the transcript of the proceedings on September 9, 1991.

2. The tote bag was recovered from above Ms. xxxxxx' seat, Tr. 105, 129.

3. xxxxxx testified that she had pleaded guilty in juvenile court after her arrest and after having spent time incarcerated in the Receiving Home for Children. Tr. II 41. She received a probationary sentence and, in fact, was first contacted by the prosecutor in Mr. xxxxx's trial, by the prosecutor reaching her through her probation officer. Tr. II 41. Over defense objection, Tr. II 41, Ms. xxxxxx stated on direct examination that no promises or deals were made with her to get her to testify at Mr. xxxxx's trial. Tr. II at 42.

4. On cross-examination Sergeant Brennan conceded that he had asked xxxxxx about the person for whom she was carrying the drugs. Tr. 109.

5. xxxxxx admitted that she did not really know Mr. xxxxx but had just seen him in the neighborhood. Tr. II 17-19, 46.

6. The defense also sought to impugn xxxxxx' veracity by establishing that she travelled in New York by committing the criminal offense of travelling the subways without paying for the rides. Tr. II 59-60.

7. On re-direct examination, xxxxxx testified that when she said Ms. xxxxxx was her cousin that simply described the degree of closeness of their friendship and that it was also part of her effort to have Ms. xxxxxx come pick her up from the police. Tr. II 61-62.

8. On re-direct examination xxxxxx stated that she had no agreements with the United States Attorney's Office. Tr. II 64.

9. The government elicited testimony from xxxxxx in which she claimed that Mr. xxxxx had told her to behave in a way that would not readily disclose the alleged fact that they were travelling together. Tr. II at 25. He also purportedly gave her instructions regarding what to do when they arrived in Winston-Salem, North Carolina. Tr. II 25. Throughout the actual bus trip from New York to Washington they had no contact with each other. Tr. II 33. Significantly, after her arrest xxxxxx gave a tape-recorded statement to which she listened before testifying at the trial. Tr. II 36.

10. xxxxxx testified that her clothes were in the black tote bag, but she claimed that Mr. xxxxx's deodorant and some other items were in the bag, although, when she was impeached by omission, she admitted that on the day of her arrest she had never told the police anything regarding belongings of Mr. xxxxx's being in the bag. Tr. II 52, 67. On re-direct examination she testified that the only items of hers that were in the bag were some clothes and some sneakers. Tr. II 65.

11. The fact that the jury was unable to reach a verdict on the second count of the indictment which charged using a minor in a drug trafficking offense, shows that the government failed to sustain its burden of proving beyond a reasonable doubt that xxxxxx had been employed, hired, used, persuaded, induced, enticed, or coerced. xxxxxx had admitted that she was independent, thought for herself, considered herself an adult, and knew how to get around New York City by herself. Tr. II 46-47. See also Tr. II 59 (xxxxxx was going to travel from the Bronx to Manhattan alone at about midnight). She also admitted that she defied the advice of a friend who told her not to embark upon the trip to the South which ultimately resulted in her arrest. Tr. II 48.

12. On cross-examination Anna xxxxxx conceded that she did not know what possessions her daughter kept at Ms. xxxxxx's home. Tr. II 86.

13. This refuted xxxxxx' testimony that she and Mr. xxxxx had travelled to the bus station together in a taxi. Tr. II 30-32, 46. xxxxxx also had described the arrangements by which she and Mr. xxxxx purportedly arrived at the bus station in New York to depart to points south. See generally Tr. II 19-24, 29-32, 50.

14. On re-direct examination Mr. Gutzmore said that he would not lie for Mr. xxxxx. Tr. II 132-133.

15. The defense objected that the proffer of Ms. xxxxxx's testimony provided by the government, see Tr. III 4-5, was improper rebuttal and was also hearsay. Tr. III 5-7.

16. Moreover, Anna xxxxxx denied ever having told Mr. xxxxx's mother that Michelle was seeing a psychologist. Tr. II 86-87.

17. xxxxxx did concede that she had been involved in a riot at the Receiving Home for Children during her incarceration there. Tr. II 57-58, 64-65, 67.

18. The Seventh Circuit has held that "final jury instructions are 'ordinarily not sufficient' ... to cure constitutional errors." United States ex rel. Burke v. Greer, 756 F.2d at 1303, citing, United States v. Buege, 578 F.2d 187, 189 (7th Cir.), cert. denied, 439 U.S. 871 (1978).

19. See Chambers v. Mississippi, 410 U.S. 84 (1973); Davis v. Alaska, 415 U.S. 308 (1974).

20. See Washington v. Texas, 388 U.S. 14 (1967).

21. 18 U.S.C. 3509(c)(9) authorizes a psychological examination "to assess the competency of a child witness" upon "a showing of compelling need."

22. In Benn after the trial court heard "substantial evidence corroborating" the testimony of the retarded witness, 476 F.2d at 1130, it found her competent. Moreover, the jury in Benn learned of the complainant's "defect" through her father's testimony. 476 F.2d at 1131. Thus, ultimately this Court found no error in the trial court's failure to order a psychiatric examination of the government's key witness.