ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No.

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF FOR APPELLANT

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No.

CERTIFICATE AS TO PARTIES, RUxxxxxGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant, Hung Shun xxxxx, hereby states as follows:

A. Parties and Amici:

The parties below were defendant Hung Shun xxxxx, defendant Qiu xxx, and the United States of America. The parties to this appeal are defendant-appellant Hung Shun xxxxx, defendant-appellant Qiu xxxxo, and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Ruxxxxxgs Under Review:

This is an appeal from the judgment of the district court (the Honorable Stanley Sporkin), dated April 13, 1995, adjudging appellant xxxxx guilty after a jury trial on the charges of hostage- taking, in violation of 18 U.S.C. зз 1203 and 2, using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. зз 924(c)(1) and 2, and possession of a firearm by an illexxxxl alien, in violation of 18 U.S.C. зз 922(g)(5), 924(a)(2) and 2.

In this appeal, appellant seeks review of the district court's ruxxxxxgs on March 29 and 30, 1995, precluding cross-examination on the witnesses' motive to fabricate; the district court's examination on April 11, 1995, eliciting testimony from an FBI agent that he found the government's witnesses to be reliable and their stories to be consistent; the jury instructions delivered on April 13, 1995, wrongly instructing the jury on the charge of using or carrying a firearm during and in relation to a crime of violence; the district court's ruxxxxxgs on March 22 and 29, 1995, denying appellant's motion to dismiss, and; the district court's ruxxxxxgs on April 10 and 11, 1995, denying appellant's motion for judgment of acquittal.

C. Related Cases:

There are no related cases. This case has not previously been before this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES 1

JURISDICTION 1

ISSUES PRESENTED FOR REVIEW 1

STATEMENT OF THE CASE 2

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below 2

B. Statement of Facts 4

i. The Evidence at Trial 5

ii. The Preclusion of Cross-Examination on Bias 13

iii. The Testimony that the Government's Witnesses Were Reliable 16

iv. The Jury Instruction Defining 18 U.S.C. з 924(c)(1) 19

v. The Motion to Dismiss the Indictment 20

vi. The Motion for Judgment of Acquittal 21

SUMMARY OF ARGUMENT 21

ARGUMENT

I. THE TRIAL COURT ERRED BY PROHIBITING ALL CROSS-EXAMINATION OF THE GOVERNMENT'S WITNESSES ABOUT WHETHER THEY RAN AN ILLExxxxL xxxxMBxxxxxG HOUSE THAT COMPETED FOR BUSINESS WITH THE ONE IN WHICH APPELLANT WORKED WHEN SUCH INQUIRY WAS RELEVANT TOBIAS AND, MORE SPECIFICALLY, MOTIVE TO LIE 25

A. Standard of Review 25

B. The Proposed Cross-Examination Was Relevant to the Witnesses' Bias and Motive to Lie 25

C. A Good Faith Basis Supported the Proposed Cross-Examination 30

D. The Preclusion of the Cross-Examination Was Not Harmless Beyond a Reasonable Doubt 32

II. THE TRIAL COURT IMPROPERLY BOLSTERED THE GOVERNMENT WITNESSES' CREDIBILITY BY SOLICITING THE FBI CASE AGENT'S OPINION THAT THE WITNESSES WERE RELIABLE AND TRUTHFUL, AND THAT THEIR STORIES WERE CONSISTENT 34

A. Standard of Review 34

B. The Trial Court Committed Prejudicial Error When It Solicited the FBI Case Agent's Opinion About the Credibility of the Government's Other Witnesses 36

III. MR. xxxxx'S CONVICTION FOR VIOLATION OF 18 U.S.C. з 924(C)(1) WAS IMPROPER IN LIGHT OF THE SUPREME COURT'S SUPERVENING DECISION IN BAILEY V. UNITED STATES 45

A. Standard of Review 45

B. The Supervening Decision in Bailey v. United States Requires Reversal of the 18 U.S.C. з 924(c) Convictions 45

IV. THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS' MOTION TO DISMISS THE INDICTMENT WHERE THE DEFENDANTS' CONDUCT IN SEIZING AND DETAINING PERSONS UNTIL MONEY WAS PAID FOR AN OUTSTANDING TELEPHONE BILL DID NOT CONSTITUTE HOSTAGE-TAKING IN VIOLATION OF 18 U.S.C. з 1203 48

V. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR JUDGMENT OF ACQUITTAL WHERE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH AN ELEMENT OF THE OFFENSE OF HOSTAGE-TAKING IN VIOLATION OF 18 U.S.C. з 1203 BEYOND A REASONABLE DOUBT 48

CONCLUSION 48

CERTIFICATE OF LENGTH 50

CERTIFICATE OF SERVICE 50

TABLE OF AUTHORITIES

CASES

STATUTES

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________

No.

_________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

HUNG SHUN xxxxx, Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

BRIEF FOR DEFENDANT-APPELLANT

HUNG SHUN xxxxx

_____________________________________________

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum.

JURISDICTION

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

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court erroneously precluded cross-examination of the government witnesses about whether they ran an illexxxxl xxxxmbxxxxxg house that competed for business with the one in which appellant worked, when such cross-examination was relevant to bias and motive to lie.

II. Whether the trial court improperly bolstered the government witnesses' credibility by soliciting the FBI case agent's opinion that those witnesses were reliable and truthful, and that their stories were consistent.

III. Whether the instruction to the jury defining the "use" prong of 18 U.S.C. з 924(c)(1) was fatally flawed in light of the Supreme Court's supervening decision in Bailey v. United States.

IV. Whether the trial court erred in denying the defendants' motion to dismiss the indictment where the defendants' conduct in seizing and detaining persons until money was paid for an outstanding telephone bill did not constitute hostage-taking in violation of 18 U.S.C. з 1203.

V. Whether the trial court erred in denying defendants' motion for judgment of acquittal where the evidence was insufficient to establish an element of the offense of hostage-taking in violation of 18 U.S.C. з 1203 beyond a reasonable doubt.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On May 31, 1994, a grand jury returned an indictment charging Hung Shun xxxxx and two co-defendants (Hung T'ien xxxxo and Qiu xxxxo) with two counts of hostage-taking, in violation of 18 U.S.C. зз 1203 and 2 (Counts One and Two), with two counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. зз 924(c)(1) and 2 (Counts Three and Four), and with possession of a firearm by an illexxxxl alien, in violation of 18 U.S.C. зз 922(g)(5), 924(a)(2) and 2 (Count Five) (A. 22).⁽¹⁾

Co-defendant Hung T'ien xxxxo entered a guilty plea on February 23, 1995, to two counts of hostage-taking and one count of possession of a firearm by an illexxxxl alien. The charges axxxxinst Hung Shun xxxxx and Qiu xxxxo were heard by a jury commencing on March 22, 1995, before the Honorable Stanley Sporkin. On April 13, 1995, the jury returned verdicts of guilty on all charges axxxxinst Hung Shun xxxxx. With rexxxxrd to Qiu xxxxo, the jury returned guilty verdicts on the hostage-taking charges (Counts One and Two), but acquitted on the firearms charges (Counts Three, Four and Five).

On September 20, 1995, Hung Shun xxxxx was sentenced to a total of 255 months imprisonment: 135 months on Counts One and Two to be served concurrently with each other, 120 months on Count Five to be served concurrently with Counts One and Two, 60 months on Count Three to be served consecutively to all other counts, and 60 months on Count Four to be served consecutively to all other counts. A five-year term of supervised release and a $250.00 special assessment was imposed (A. 60). Hung Shun xxxxx filed a timely notice of appeal (A. 67).

B. Statement of Facts

The government alleged that on January 21, 1994, at approximately 10:00 p.m., two men -- Sheng Chen and Zhao Qi Li⁽²⁾ -- were taken at gunpoint from an apartment in Chinatown by four men. According to the government, the motive behind the alleged hostage- taking was to extract payment from Sheng Chen and Zhao Qi Li for telephone calls that they had made to China by illexxxxlly tapping into another person's telephone xxxxxe (Tr. 700-701, 780, 978).

Sheng Chen and Zhao Qi Li were taken from an apartment at xxx L Street, N.W., to a house at xx N Street, N.W., where they allegedly were hit and kicked. After being held for six hours (Tr. 477), they were released upon the agreement to pay $5,800 over the course of the following few weeks.

The government presented its case primarily through the testimony of the two complaining witnesses (Mr. Sheng Chen and Mr. Zhao Qi Li), an eyewitness to the initial encounter (Ms. Jin Xin Lu), the man who negotiated the payment (Mr. Guan Huan Chen), and a cooperating co-defendant (Mr. Hung T'ien xxxxo).⁽³⁾ The government presented evidence that neither Sheng Chen, nor Zhao Qi Li, nor the defendants, were U.S. nationals (Tr. 805, 810-811, 894-896).

i. The Evidence at Trial

On the evening of January 21, 1994, at approximately 10:00 p.m., six or seven people were present in the third floor apartment of xxx L Street, N.W., some playing poker, some watching television (Tr. 158-159, 186, 491).⁽⁴⁾ When the doorbell rang, Sheng Chen answered the door and admitted four men into the building (Tr. 159-160, 461, 599, 698). Hung T'ien xxxxo testified that the four men were himself, defendant Hung Shun xxxxx, xxxxx xxxxo, and Hong Zong xxxxx (Tr. 697, 700). One of the men asked Sheng Chen whether he knew anyone from the Chang Kan region of China (Tr. 599). The men then followed Sheng Chen up the stairs to the third floor apartment (Tr. 600, 699).

There was a dispute among the witnesses about which of the four men had guns: Hung T'ien xxxxo testified that only he and xxxxx xxxxo had guns (Tr. 698). Jin Xin Lu agreed that only two of the men were armed with guns, but Sheng Chen and Zhao Qi Li claimed that all four of the men had guns (Tr. 159-160 464, 480, 599).

Once upstairs, Hung T'ien xxxxo axxxxin asked Sheng Chen whether he knew anyone from the Chang Kan region, and then both Hung T'ien xxxxo and xxxxx xxxxo hit Sheng Chen in the back with a gun (Tr. 160, 462-463, 502, 600, 699). Hung T'ien xxxxo testified that he asked Zhao Qi Li whether "anybody [was] sneaking and tap[ping] the phone," however, Zhao Qi Li denied that there ever was any discussion about telephone calls (Tr. 160-161, 518, 781).

Hung T'ien xxxxo testified that while he and xxxxx xxxxo were questioning and hitting Sheng Chen, defendant Hung Shun xxxxx was "pulxxxxxg out the telephone wire" in the apartment (Tr. 699-700). However, Ms. Jin Xin Lu testified that no one tore the telephone xxxxxes from the wall or cut the xxxxxes that night (Tr. 240). Since telephone calls were made and received at the apartment later that same night (Tr. 271-272, 473), at least the xxxxxes installed by the telephone company apparently were not removed or cut.

Hung T'ien xxxxo ordered Sheng Chen to "[J]ust come on, follow me," (Tr. 160-161, 601). Both Sheng Chen and Zhao Qi Li were escorted downstairs. Hung T'ien xxxxo and Sheng Chen testified that the group went first to a xxxxmbxxxxxg house at 514 M Street, N.W., for a few minutes (Tr. 464-467, 503-504, 603-604, 700, 724). Sheng Chen was impeached by his prior statement to FBI Agent xxxxry Sheppard, in which he never mentioned being taken to a house at 514 M Street (Tr. 975, 994). At trial, he claimed not to know that the house at 514 M Street was a xxxxmbxxxxxg house (Tr. 648).

According to Hung T'ien xxxxo, both he and xxxxx xxxxo xxxxve their guns to defendant Hung Shun xxxxx who dropped them off at the xxxxmbxxxxxg house at 514 M Street, N.W., however, Zhao Qi Li testified that all four of the men had guns even later (Tr. 467, 702, 705). Hung T'ien xxxxo was impeached by his prior inconsistent statement to FBI agents that he kept his gun (Tr. 747, 980).

The entire group proceeded to 10 N Street, N.W., the residence of all three defendants (Tr. 465-467, 503-504, 603-604, 706, 731). When they arrived at the house on N Street, Sheng Chen asked "[W]hat's the score, I mean, what's happening" (Tr. 608). One of the men responded, "[Y]ou made the telephone call amounting to about $10,000" (Tr. 609, 708-709). Sheng Chen told the men that he "never ever made any phone calls" (Tr. 609). A man named Kai Chen xxxxx handcuffed Sheng Chen and Zhao Qi Li together (Tr. 470, 609, 708, 724). Sheng Chen and Zhao Qi Li were told to kneel and were hit with fists, a wooden pole and a plastic block by Hung T'ien xxxxo, Hung Shun xxxxx, Qiu xxxxo, xxxxx xxxxo, Hong Zong xxxxx, and Kai Chen xxxxx (Tr. 468, 472, 478, 549, 611-612, 706-708). Sheng Chen admitted that he tapped the telephone wires so that his telephone calls would be billed to the tapped xxxxxe (Tr. 750).

The men demanded $10,000 for reimbursement for the telephone charges (Tr. 470-471, 622, 710). Sheng Chen and Zhao Qi Li told them that they could not come up with such a big chunk of money, to which the men suggested borrowing from relatives or friends (Tr. 471, 622-623). Sheng Chen and Zhao Qi Li decided to contact their boss, Guan Huan Chen (Tr. 623, 711). Zhao Qi Li was taken to a pay telephone (Tr. 471, 475, 623, 711). Zhao Qi Li called his 501 L Street apartment and spoke with Ms. Hai Liu (Tr. 473). He told Ms. Liu about the demand for money and asked her to contact Guan Huan Chen (Tr. 474). While Zhao Qi Li was out making the telephone call, Sheng Chen was told to watch television in the living room (Tr. 474, 625). When Zhao Qi Li returned, both were taken to the basement of the house where they were guarded by co-defendant Qiu xxxxo and by xxxxx xxxxo (Tr. 475, 480, 508, 628-629, 711).

Meanwhile, Mr. Guan Huan Chen got involved. He testified that on January 21, 1994, he was on his way home from work when he received a call on his pager from Ms. Hai Liu (Tr. 271-272). He was impeached by his prior inconsistent statement to FBI agents that he was first contacted when he was in his apartment on the second floor of 501 L Street, N.W., and someone came down from the third floor and told him what had happened (Tr. 386). He also was impeached by his prior inconsistent statement to the grand jury that a man named Jian Zhong Chen, rather than Ms. Liu, paged him (Tr. 393, 397).

In response to the page, Guan Huan Chen went to the third floor apartment of 501 L Street (Tr. 256-257). He was told that his employee and former employee, Sheng Chen and Zhao Qi Li, had been detained, beaten with a gun, and taken away (Tr. 272, 353). Guan Huan Chen was impeached with statements made at two separate interviews with FBI agents in which he reported only that Sheng Chen had been taken hostage, and made no mention of Zhao Qi Li also having been taken hostage (Tr. 347, 973, 1053, 1084).⁽⁵⁾

Guan Huan Chen testified that he set out "to find out the whole situation" (Tr. 273). He knew that Sheng Chen and Zhao Qi Li were "operatives" at a "xxxxmbxxxxxg parlor," and learned from an eyewitness to the hostage-taking that two of the intruders also were "operatives there in the xxxxmbxxxxxg parlor" (Tr. 273).⁽⁶⁾ Based on that information, Guan Huan Chen went to the xxxxmbxxxxxg parlor at 514 M Street, N.W., to look for the boss of the intruders, a man nick-named "Stupid Brother" (Tr. 260-261). Guan Huan Chen was impeached by his prior statement to FBI agents in which he never mentioned visiting the xxxxmbxxxxxg house at 514 M Street, and never mentioned having spoken with the boss of the xxxxmbxxxxxg house, "Stupid Brother" (Tr. 355, 364, 399-400).

At the xxxxmbxxxxxg house, Guan Huan Chen first spoke with co-defendant Qiu xxxxo who said "I had nothing to do with the whole thing" (Tr. 275). He then spoke with Stupid Brother, and assured Stupid Brother that if Sheng Chen and Zhao Qi Li were released, everything would thereafter be "iron[ed] out" (Tr. 261-262, 276). Stupid Brother said that Hung T'ien xxxxo was responsible for the hostage-taking (Tr. 276). Guan Huan Chen testified that he found Hung T'ien xxxxo by contacting xxxxo's driver, a man nick-named "No Teeth," who instructed him to go wait at New York and N Streets, N.W., where he would be contacted (Tr. 276-277). He was impeached by his prior statements to FBI agents in which he never mentioned anyone named "No Teeth" (Tr. 365). Guan Huan Chen testified that he went to New York and N Streets, was contacted, and was taken to a house on N Street, N.W. (Tr. 278-279).

Guan Huan Chen testified that at the house on N Street, he found several people watching television (Tr. 279, 451). After waiting for about 30 minutes, he spoke with Hung T'ien xxxxo, defendant Hung Shun xxxxx, Chi Cheng xxxxx and two others whom he did not recognize (Tr. 279, 711). Guan Huan Chen asked that Sheng Chen and Zhao Qi Li not be hurt because "[i]f they are hurt physically they will no more be able to work for me. So why not just set them free first. We talk things out later" (Tr. 280-281). Hung T'ien xxxxo told Guan Huan Chen that the two men were detained because they had made "a lot of phone calls at 514 M Street," but had not paid the phone bill (Tr. 289-290).

The financial negotiations opened at $10,000 (Tr. 713). After several rounds of offers and counteroffers, Guan Huan Chen persuaded the men to accept $5,800 by telxxxxxg them that Sheng Chen and Zhao Qi Li earned very little money (Tr. 303-304, 713, 716).⁽⁷⁾ After settxxxxxg on the amount, Guan Huan Chen asked to discuss it with Sheng Chen and Zhao Qi Li since, ultimately, they would have to repay him (Tr. 306-307). In a discussion over walkie-talkies, Sheng Cheng agreed to the amount (Tr. 307-308, 475, 630, 713-714).

Having settled on the amount, Guan Huan Chen explained that he did not actually have the money at that moment (Tr. 308). He promised that if he were permitted to take Sheng Chen and Zhao Qi Li home, he would return and pay the money at a later date (Tr. 308, 717). The "hostage-takers" agreed (Tr. 309, 717). Sheng Chen and Zhao Qi Li were produced from the basement and Guan Huan Chen left with them (Tr. 309, 631, 721). Guan Huan Chen was impeached by his prior inconsistent statements to two separate groups of FBI agents that the release did not occur until two days after the money was paid (Tr. 420, 1056, 1090). Zhao Qi Li testified that as he left he saw "No Teeth" outside the house (Tr. 514, 1048).

As they left, Zhao Qi Li stopped and told Guan Huan Chen that he had $700 in his pocket (Tr. 309, 515). Zhao Qi Li suggested paying that money right away (Tr. 309). Guan Huan Chen agreed, and added $100 to the pot (id.). Guan Huan Chen was impeached by his prior inconsistent statements to two separate groups of FBI agents that he himself had provided the $800 (Tr. 352, 972, 1054, 1089-1090). The money was given to defendant Hung Shun xxxxx (Tr. 310, 718-719). Two days later Guan Huan Chen xxxxve $2,000 to Hung Shun xxxxx (Tr. 310). Guan Huan Chen testified that he was told three days later that Sheng Chen received a call demanding the remainder of the money, "otherwise you will have trouble" (Tr. 311). Guan Huan Chen paid the remainder (Tr. 311). According to Hung T'ien xxxxo, he never received any of the money and did not know how it was spent; defendant Hung Shun xxxxx received the money (Tr. 738-739). Guan Huan Chen testified that Sheng Chen repaid all of the money to him, although Zhao Qi Li claimed at trial to have repaid $2,200 to Guan Huan Chen (Tr. 368, 517). No one called the police (Tr. 188, 518).

After their release, both Sheng Chen and Zhao Qi Li complained about soreness, but neither sought treatment at a hospital (326-327, 632). They stayed in bed for about a week before travelxxxxxg to New York for herbal remedies (id.).

Two months later, on March 17, 1994, Guan Huan Chen contacted the FBI and INS and alleged the hostage-taking (Tr. 331). Although he knew defendant Hung Shun xxxxx prior to March, 1994, and knew xxxxx's name, he did not name him as one of the perpetrators (Tr. 345, 362). At a later date, he was shown a photo array from which he identified Hung T'ien xxxxo, Hung Shun xxxxx, and Qiu xxxxx as three of the people with whom he negotiated (Tr. 338, 346, 431, 836). Sheng Chen and Zhao Qi Li identified defendant Hung Shun xxxxx from a photo array as one of the men who took him from 501 L Street (Tr. 479, 635, 832-833, 906-907).⁽⁸⁾ They identified co-defendant Qiu xxxxo as one of the men who guarded them in the basement of 10 N Street (Tr. 526, 636, 835).

Over three months after the alleged hostage-taking, on April 29, 1994, the FBI executed a search warrant at 10 N Street, N.W. (Tr. 62). The FBI seized from the basement, the kitchen, a bedroom, and a bathroom, five rounded wooden poles such as might be used as a closet rod (Tr. 72, 75-77, 81-91). On that same date, the FBI executed a search warrant at the residence to which the three defendants had moved; the third floor apartment of 1510 6th Street, N.W. (Tr. 96, 731-732, 818, 831). The FBI seized a cixxxxrette lighter in the shape of a pistol and a closed-circuit television monitor from a bedroom, a BB gun, bullets, handcuffs, a passport issued to Hung T'ien xxxxo, a walkie-talkie, pliers and wire cutters from another bedroom, a loaded .357 caliber pistol from the refrigerator's drip pan in the kitchen, a walkie-talkie from the attic, and a closed-circuit television camera from the stairwell that was pointed at the front door and that was connected to the monitor found in the bedroom (Tr. 99-103, 106, 108, 110, 119-120, 928-930). Although defendant Hung Shun xxxxx's fingerprints were not on any of the items seized from either location (Tr. 920), 257 of Hung T'ien xxxxo's prints were found on the seized items (id.).

ii. The Preclusion of Cross-Examination on Bias

Mr. Hung Shun xxxxx presented his theory of the case in his opening statement. Defense counsel told the jury that the government's witnesses pointed the finger at Mr. xxxxx because they wanted to remove him from the competition among xxxxmbxxxxxg parlors in Chinatown (Tr. 48-52) (emphasis added):

. . . The evidence is going to show that there is much more than meets the eye in this case. The folks who are going to come in here come in with a history. They all live around Chinatown in the District of Columbia. They all know each other and they have competing businesses and interests. It's a small community out there.Evidence is going to show that in Chinatown, unbeknownst to many people who aren't privy, who aren't privileged to that community, who don't know the inside of that community, the xxxxmbxxxxxg houses there that compete with one another. They're in competition for the money that's being xxxxmbled illexxxxlly.

They are also in competition for girlfriends. And you'll learn that the victims in this case are in competition with people who were employing Mr. xxxxx, xxxxmbxxxxxg house, illexxxxl xxxxmbxxxxxg houses. They didn't report this to the police, because there was no kidnapping. Or if there was, certainly Mr. xxxxx had nothing to do.When they found out that Mr. xxxxx was getting his -- was being singled out as being an individual who participated in some hostage taking, they jumped at that opportunity. These so-called victims who had never had anything to do with Mr. xxxxx jumped at that opportunity, pointed their finger at him, get him out of the way. Point the finger at Mr. Qiu, get him out of the way. It had nothing to do with any kidnapping.

But there are two other people that are going to come in, three other people. They have other motives, other than [cooperating co-defendant] xxxxo, Hung T'ien. They have other motives. They have other interests they want to protect. They have economic motives, competition, get the competition out of the way.

On direct examination and axxxxin on re-direct examination, Guan Huan Chen testified that he held no animosity for defendant Hung Shun xxxxx (Tr. 373, 451). In addition, Zhao Qi Li testified on direct examination that he did not "have any kind of grievance axxxxinst" the defendants (Tr. 483).

The trial court prevented defendant Hung Shun xxxxx from cross-examining Guan Huan Chen about his bias and motive to lie stemming from his financial interest in xxxxmbxxxxxg houses that were in competition with the xxxxmbxxxxxg house for which Mr. xxxxx was employed. The prosecutor objected on relevance grounds to the question, "Sir, you are involved in running a xxxxmbxxxxxg house yourself, isn't that right?" (Tr. 357). Defense counsel proffered that a "source" had told him that Guan Huan Chen was "involved in a number of shady businesses." (Tr. 357). When pressed by the court, defense counsel revealed his source -- the defendant, Mr. Hung Shun xxxxx. (Tr. 359).

The trial court ruled that defense counsel's proffer that he had been told by the defendant that the witness ran a xxxxmbxxxxxg house was not sufficient to form a good faith basis on which to cross-examine the witness. The court ruled that such cross-examination would be disallowed unless the defendant first testified under oath (but outside the hearing of the jury) about the witness' involvement in competitor xxxxmbxxxxxg houses (Tr. 358-359). The court articulated the reasons behind its restriction (Tr. 359):

. . . I have got to have some basis to allow that question to go to these people. It could be tremendously prejudicial. And I have got to balance the probative value versus the prejudicial nature, and the truthfulness of it.Defense counsel raised the issue axxxxin the next day, while Guan Huan Chen was still on the witness stand (Tr. 379), explaining that the proposed cross-examination . . . would go to his bias. My whole theory of defense is that it's a bias and that these people are fabricating this kidnap or [t]his hostage-taking story.

(Tr. 381-382). In addition, counsel argued that the defendant had a Sixth Amendment right to confront witnesses axxxxinst him through cross-examination, as well as a constitutional right not to take the witness stand himself (Tr. 379-380). The trial court axxxxin ruled that counsel did not have a good faith basis for the cross-examination in the absence of under-oath testimony from a witness stating that Guan Huan Chen was involved in running a xxxxmbxxxxxg house (Tr. 380-381).

The trial court also ruled that the proposed cross-examination was "tangential" to any issue to be proved at trial (Tr. 380), but that it might reconsider the ruxxxxxg depending on what evidence the defendant adduced during its own case (Tr. 382):

Look, you have an ability to put that in issue. My determination is temporary because there is no basis at this time. I don't know what your defense is going to be. It may be that that's the defense, and you'll have the ability to put it into issue, and we'll bring this person back.

iii. The Testimony that the Government's Witnesses Were Reliable

The defense called FBI Agent xxxxry Sheppard to complete impeachments of Guan Huan Chen, Sheng Chen, and Hung T'ien xxxxo. Agent Sheppard suggested that the witnesses' omissions during their interviews with the FBI might have been due to the fact that the interviews had to be conducted through an interpreter (Tr. 1034). He testified that "[t]he imperfections that exist in this system of interviews exists in the details" (Tr. 1038). Following the attorneys' examination of Agent Sheppard, the trial court undertook its own examination (Tr. 1038-1040) (emphasis added):

Q. Let me see if I can ask you just a few simple questions here. If I've got it wrong, you tell me I've got it wrong.

Is some of the problem here that perhaps the first interview you have with these people may not be all embracing? You might not have gotten all the information? Is that part of the problem?

A. That's correct. And that's true of any initial interview, whether it's a Chinese or someone born here in the United States.

Q. Sometimes when you talk to someone, they might not volunteer information unless you specifically ask it; is that a fair statement?

A. That's a fair statement, and that happened several times during the interviews.

Q. In other words, unless you know about it, then sometimes people just don't come up and say -- volunteer it.

A. If you don't specifically ask, you don't get that specific answer.

Q. That happens generally? I mean, not specifically with respect to these people; is that a fair statement?

A. To be honest with you, I've found it to be more so in deaxxxxxg with Chinese. They do not go beyond the scope of your question. They will answer your question. They'll be very polite, but they'll be very specific in answering your question. It's more of a specific language than what ours is.

Q. But with the information that they do provide you, that that is basically accurate, is that what you are saying, the specifics they do provide you?

Ms. Lobo: Objection, Your Honor.

Court: What's the basis of your objection?

Ms. Lobo: You are asking him to give an opinion about whether or not these witnesses tell the truth.

Court: No. I'm asking him about his experience. How long have you been with the FBI?

A. Seventeen years.

Q. How long have you been deaxxxxxg with these ethnic investixxxxtions?

A. Since 1980 I've either been assigned counter-terrorism investixxxxtions or orxxxxnized crime investixxxxtions.

Q. I'm talking about investixxxxtions involving people who have a language problem.

A. Since 1980.

Q. Since 1980. What I'm trying to get at is, is the problem that you mention one in which it is a problem of people not volunteering additional information as opposed to the reliability of the information they do provide you?

A. Some of it is the providing of additional information, in other words, going beyond the boundaries of the question asked, and some of it is the order in which the information is provided.

Q. Okay. Thanks.

A. However, all of the information that we've got from witness to witness, there are some basic facts that never changed, and the results of our searches confirmed what the witnesses told us.

Q. Thank you.

iv. The Jury Instruction Defining 18 U.S.C. з 924(c)(1)

The trial court instructed the jury on the elements of using or carrying a firearm during and in relation to a crime of violence (Tr. 4/13 48-52) (emphasis added):

Okay. The two essential elements of the offense of using or carrying a firearm during and in relation to a crime of violence, each of which the government must prove beyond a reasonable doubt, are, first, that the defendant committed a crime of violence for which he might be prosecuted in a court of the United States. . . .What's the second element? That the defendant knowingly used or carried a firearm during and in relation to the commission of the hostage taking crime charged in Counts 1 and 2. . . .

Now, under this statute, to use and carry a firearm means to have the firearm available to assist or aid in the commission of the crime of hostage taking alleged in Counts 1 and 2 of the indictment. In determining whether the defendant used or carried a firearm, you may consider all the factors received in evidence in the case, including the nature of the underlying crime of violence alleged, the proximity of the defendant to the firearm in question, and the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.It is not necessary that the government prove that the defendant fired or even displayed the weapon. The government is required, however, to prove beyond a reasonable doubt that the firearm was in the defendant's possession or under the defendant's control at the time that the crime of violence was committed.

The court also instructed the jury on aiding and abetting liability with rexxxxrding to the з 924(c) charges (Tr. 49-50, 53).During deliberations, the jury sent a note requesting a transcript of all of the trial testimony relating to the question of who had a gun during the alleged hostage-taking (Tr. 68; A. 54). The trial court explained the burdensome nature of the request and asked to try to "pinpoint more specifically what it is that you want" (Tr. 71-72). The jury sent a second note requesting the testimony of only one witness -- Hung T'ien xxxxo -- on the subject of who had a gun during the alleged hostage-taking (Tr. 73; A. 55). The attorneys read the relevant portions of the transcript to the jury (Tr. 77).

v. The Motion To Dismiss the Indictment

Counts One and Two of the indictment charged the defendants with violations of the Hostage Taking Act, 18 U.S.C. з 1203. On March 22, 1995, the defendants filed a Motion to Dismiss Counts One through Four, arguing that Counts One and Two were mischarged, and that Counts Three and Four charging violations of 18 U.S.C. з 924(c)(1) likewise failed because they were predicated upon conviction on Counts One and Two. The defendants argued in their motion that the government allexxxxtions did not fall within the ambit of the Hostage Taking Act because that statute was primarily aimed at seizures involving an international aspect. The trial court orally denied defendants' motion on March 22, 1995, and subsequently issued a written Order and Memorandum Opinion and Order denying same on March 29, 1995. The court ruled that the defendants' conduct fell squarely within the statute's plain meaning.

vi. The Motion for Judgment of Acquittal

On April 10, 1995, the defendants moved for judgment of acquittal on Counts One and Two, charging violations of the Hostage Taking Act (Tr. 941-948, 953-955). Defendants argued that the seizure and detention of the victims was not undertaken "in order to compel a third person or a government or orxxxxnization to do or abstain from doing any act as [an] explicit or implicit condition for the release of the person . . ." (Tr. 942-948, 953-954). Defendants argued that the evidence established that the seizure and subsequent beating of the victims occurred in order to compel the victims themselves to pay an outstanding telephone bill, and that the involvement of a third person who paid some of the money before the victims were released was the idea of the victims themselves; compelxxxxxg a third party to do so had not been the original intent of the defendants (Tr. 944). The government argued that the focus of the statute was the victims' detention (Tr. 950), that the detention continued until the victims "agreed to give the name up of someone who had the money" (Tr. 952).

SUMMARY OF ARGUMENT

I. In his opening statement, Mr. xxxxx defended axxxxinst the charges on the theory that the government's witnesses fabricated the hostage-taking allexxxxtion in order to remove from Chinatown the competitor xxxxmbxxxxxg houses's employees. The defense theory derived from information from a source (the defendant) and was supported by the circumstances under which the alleged offense was reported and the perpetrators named, by the trial testimony that the victims were employees of a xxxxmbxxxxxg house, and by the substantial impeachment of the witnesses' trial testimony. The trial court, however, precluded any exploration of this bias and motive to lie on cross-examination by ruxxxxxg that such cross-examination would be "tangential," and that a good faith basis did not support it.

The Confrontation Clause guarantees the right of cross-examination for the purpose of "reveaxxxxxg possible biases, prejudices, or ulterior motives of the witness." Davis v. Alaska, 415 U.S. 308, 316 (1974). The proposed cross-examination was not "tangential" then, but was entirely relevant to whether the witnesses held a bias and had a motive to lie, and the trial court's preclusion of the cross-examination was error.

In addition, the trial court's ruxxxxxg that a good faith basis in support of the proposed cross-examination did not exist was wrong as a matter of law. Generally, cross-examination into a witness' bias or motive to lie is proper even if it is based "only [on] a well reasoned suspicion that a circumstance might be true." United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970). Where the questioning might suggest wrong-doing on the part of the witness, "the questioner must be in possession of some facts which support a genuine belief that the witness committed the offense or the degrading act to which the questioning relates." United States v. Fowler, 465 F.2d 664, 666 (D.C. Cir. 1972). Here, direct information from the defendant (supported by other circumstances) provided counsel with facts that supported a genuine belief that the government's witnesses worked at a competitor xxxxmbxxxxxg house and were motivated in this case by their desire to eliminate the competition. Scull v. United States, 564 A.2d 1161, 1164 (D.C.App. 1989); United States v. Pedroza, 750 F.2d 187, 196-197 (2d Cir. 1984).

II. The trial court questioned the case agent from the FBI, soliciting his opinion about the "acurra[cy]" and "reliability" of the government's other witnesses. The agent testified that "all of the information that we've got from witness to witness, there are some basic facts that never changed, and the results of [the FBI's] searches confirmed what the witnesses told us." The agent's testimony bolstered those witnesses' credibility and invaded the province of the jury. Because the believability of the witnesses is the exclusive province of the jury, witnesses may not opine as to the credibility of other witnesses at trial. United States v. Forrester, 60 F.3d 52, 63 (2d Cir. 1995); United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); Billeci v. United States, 184 F.2d 394, 401 (D.C. Cir. 1950). The improper testimony was exacerbated by the fact that it was solicited by the trial court and clearly implied to the jury that the trial court also believed the witnesses to be truthful and reliable. Finally, the trial court's questions establishing the agent's experience assessing witness reliability further ensured that the jury would surrender its own credibility assessment to the agent's.

III. In Bailey v. United States, 116 S. Ct. 501 (1995), the Supreme Court held that to obtain a conviction under the "use" prong of 18 U.S.C. з 924(c), the government must prove "that the defendant actively employed the firearm." Id. at 506. The jury instructions here were erroneous under Bailey because they permitted a conviction under the "use" prong if the jury found that Mr. xxxxx had "the firearm available to assist or aid in the commission of the crime," even if he did not "fire [] or even display[] a weapon." Because one possible basis for the jury verdicts on Counts Three and Four is lexxxxlly insufficient, the convictions must be reversed. Griffin v. United States, 502 U.S. 46, 58-59 (1991); Yates v. United States, 354 U.S. 298, 312 (1957); United States v. Colxxxxxs, 56 F.3d 1416 (D.C. Cir.), cert. denied, 116 S. Ct. 737 (1996).

IV. Pursuant to Federal Rule of Appellate Procedure 28(i), appellant xxxxx hereby incorporates and adopts by reference the argument set forth in the Brief of Appellant Qiu xxxxo (No. 95-3172) as argument Point I of that brief.

V. Pursuant to Federal Rule of Appellate Procedure 28(i), appellant xxxxx hereby incorporates and adopts by reference the argument set forth in the Brief of Appellant Qiu xxxxo (No. 95-3172) as argument Point II of that brief.

ARGUMENT

A. Standard of Review

The trial judge traditionally enjoys the discretion to control cross-examination. However, "[i]t is only after a party has had an opportunity substantially to exercise the right of cross-examination that discretion becomes operative." xxxxxdsey v. United States, 133 F.2d 368, 369 (D.C. Cir. 1942). In other words, a trial court "may limit cross-examination only after there has been permitted, as a matter of right, a certain threshold level of cross-examination which satisfies the constitutional requirement." United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989) (emphasis in original), (quoting United States v. Christian, 786 F.2d 203, 213 (6th Cir. 1986); United States v. Tracey, 675 F.2d 433, 437 (1st Cir. 1982). "Whether limitations on cross-examination are so severe as to amount to a violation of the confrontation clause is a question of law reviewed de novo." United States v. Dees, 34 F.3d 838, 843 (9th Cir. 1994); United States v. Varxxxxs, 933 F.2d 701, 704 (9th Cir. 1991).

B. The Proposed Cross-Examination Was Relevant to the Witnesses' Bias and Motive to Lie

In his opening statement, and without objection, Mr. xxxxx defended axxxxinst the charges on the theory that the government's witnesses fabricated the hostage-taking allexxxxtion in order to remove from Chinatown the competitor xxxxmbxxxxxg house's employees (Tr. 48-49). The trial court precluded any exploration of this bias and motive to lie by ruxxxxxg that the cross-examination was "tangential," and that Mr. xxxxx did not have a good faith basis upon which to cross-examine the witnesses. Because all such inquiry was foreclosed, and because the error was not harmless beyond a reasonable doubt, the convictions must be reversed.

The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant to confront witnesses axxxxinst him, including the right to test the credibility of those witnesses through cross-examination. Davis v. Alaska, 415 U.S. 308, 315-316 (1974). Cross-examination is "the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316. The Supreme Court repeatedly has recognized the importance of cross-examination on bias or, more specifically, motive to lie: "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Davis v. Alaska, 415 U.S. at 316-317). Indeed, cross-examination is "even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy." Greene v. McElroy, 360 U.S. 474, 496 (1959). Thus, the cross-examiner is "allowed to impeach, i.e., discredit, the witness" and may attack the witness' credibility by "reveaxxxxxg possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." Davis v. Alaska, 415 U.S. at 316.

Bias, then, is always relevant and a proper subject of cross-examination, and the jury must be provided sufficient information to allow it to appraise the witness' bias. United States v. Abel, 469 U.S. 45, 52 (1984); Davis v. Alaska, 415 U.S. at 316; Anderson, 881 F.2d at 1136. A witness' "bias" includes his motive to fabricate or to distort the truth:

Bias is a term used in the 'common law of evidence' to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or axxxxinst a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.

Abel, 469 U.S. at 52.

Here, Mr. xxxxx's Sixth Amendment right to confront the witnesses axxxxinst him demanded some inquiry into the witnesses' "possible biases, prejudices, or ulterior motives." Davis v. Alaska, 415 U.S. at 316. Even the government's own evidence suggested that perhaps all was not as the government's witnesses professed at trial. For example, the alleged crime was not immediately reported to the police by any of the supposed victims or eyewitnesses. Once Mr. Guan Huan Chen did make a report two months later and was interviewed by the FBI, he did not tell them that defendant Hung Shun xxxxx was one of the perpetrators -- even though he admittedly knew xxxxx and knew xxxxx's name. Guan Huan Chen testified that he knew that the complaining witnesses and two of the hostage-takers were "operatives" at xxxxmbxxxxxg houses, knowledge that led him to begin his search to learn the "whole situation" at the xxxxmbxxxxxg house at 514 M Street (Tr. 260-261, 273). The witnesses' trial testimony was significantly impeached by their prior inconsistent statements to the FBI and to the grand jury. And, most significantly, defense counsel had explicitly been told that the government's witnesses worked at a competitor xxxxmbxxxxxg house.

Based on this backdrop, defense counsel should have been permitted to cross-examine Guan Huan Chen, Sheng Chen and Zhao Qi Li about whether they had a motive to lie, i.e., that the accusation axxxxinst Mr. xxxxx was an effort to make Chinatown a one-xxxxmbxxxxxg house town, rather than truthful reporting of Mr. xxxxx's participation in a gun-point hostage-taking.⁽⁹⁾ The proposed examination was not "tangential," as the trial court found, but rather was entirely relevant to whether the witnesses had a motive to fabricate. Abel, 469 U.S. at 53 (where defense witness testified that snitch admitted fabricating the allexxxxtion axxxxinst defendant, cross-examination of defense witness about whether he, snitch and defendant all were members of a violent prison group that required its members to commit perjury for each other, was relevant to witness' bias and, therefore, proper); Douglas v. Owens, 50 F.3d 1226, 1231 (3d Cir. 1995) (in trial for beating inmates in aftermath of riot, cross-examination of government witness about fact that he was fired by prison because of his involvement with rioting inmates and his failure to cooperate in investixxxxtion of riot was relevant to bias and motive for testifying; its preclusion was error requiring reversal); Dees, 34 F.3d at 844 (cross-examination of adoption-scam victim about whether her contract for a movie based on the alleged crime xxxxve her an economic motive for testifying was relevant to bias and credibility; its preclusion was error, but harmless); United States v. xxxxxdstrom, 698 F.2d 1154, 1161 (11th Cir. 1983) (cross-examination of government witness about her alleged vendetta axxxxinst defendants based on the fact that she did not receive financial renumeration that she allegedly believed she was due was relevant to bias and motive to fabricate; its preclusion was error requiring reversal). By precluding the cross-examination, the trial court deprived Mr. xxxxx's jury of sufficient information with which to appraise the witnesses' bias and entirely eliminated his defense.

C. A Good Faith Basis Supported the Proposed Cross-Examination

The trial court's ruxxxxxg that defense counsel's proffer that he had been told by the defendant that Guan Huan Chen ran a competitor xxxxmbxxxxxg house did not provide a good faith basis for the cross-examination, was wrong as a matter of law. This Court has held that cross-examination into a witness' bias or motive to lie is proper even where there is "no foundation in fact for the question" as long as the question is based "only [on] a well reasoned suspicion that a circumstance might be true." United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970). This is so because cross-examination is "necessarily exploratory." Id. at 225 n.3 (quoting Alford v. United States, 282 U.S. 687, 692 (1930). Thus, in Pugh, cross-examination of the robbery victim about whether he had gone to visit a girl when he got robbed, rather than a male friend, should have been permitted even though the defense had only a suspicion and no factual foundation for the question. Id. at 225. Where the cross-examination might suggest wrong-doing on the part of the witness, this Court has held that "the questioner must be in possession of some facts which support a genuine belief that the witness committed the offense or the degrading act to which the questioning relates." United States v. Fowler, 465 F.2d 664, 666 (D.C. Cir. 1972) (emphasis added).

Here, defense counsel based his proposed xxxxxe of questioning on much more than a "well reasoned suspicion," and certainly possessed "some facts" which supported a "genuine belief" that Guan Huan Chen ran a competitor xxxxmbxxxxxg house at which Sheng Chen and Zhao Qi Li worked, and that they were motivated by a desire to remove the economic competition from Chinatown. As discussed supra at 28, the circumstances of the alleged offense, the irregularities in the reporting of the offense, and the inconsistent trial testimony, all suggested that perhaps the government's witnesses were not telxxxxxg a completely truthful version of events. But, most importantly, defense counsel had direct information from a source -- his client. As the Court of Appeals for the District of Columbia has held,

[W]here counsel has information from her own client, which she does not know to be false and which is not "inherently incredible," she has a sufficient good-faith basis for the proposed cross examination. Hazel [v. United States, 319 A.2d 136, 139 (D.C.App. 1974)]. In the absence of such a factual foundation, the questioner must articulate a "well reasoned suspicion" rather than "an improbable flight of fancy" to support the proposed cross-examination. [United States v.] Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970).

Scull v. United States, 564 A.2d 1161, 1164 (D.C.App. 1989) (footnote omitted); Pedroza, 750 F.2d at 196-197 (information from defendant himself provided good faith basis for cross-examination). Here, counsel did not know the information to be false and it was not "inherently incredible."

D. The Preclusion of the Cross-Examination Was Not Harmless Beyond a Reasonable Doubt

The trial court's preclusion of all cross-examination relating to the witnesses' bias and motive to lie to xxxxin an economic advantage in the xxxxmbxxxxxg business is not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). The Supreme Court, in Delaware v. Van Arsdall, 475 U.S. at 684, articulated the analysis guiding appellate courts:

The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of the cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Cf., United States v. Smith, 77 F.3d 511, 505 n.1 (D.C. Cir. 1996) (in considering whether trial error is harmless, appellate courts must "refrain from analyzing the overall weight of the evidence, and instead look to the potential effect the error might have had on the jury") (citing O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995)).

Here, the witness who claimed to have negotiated the complainants' release (Guan Huan Chen), and the complainants themselves (Sheng Chen and Zhao Qi Li), obviously were critical witnesses for the government. And, although their trial testimony was significantly impeached by prior inconsistent statements, their versions of the events formed the core of the government's case axxxxinst Mr. xxxxx. The trial court precluded entirely cross-examination about these witnesses' motive to lie, depriving the jury of sufficient information with which to assess the witnesses' credibility. Not only was the jury unaware that Guan Huan Chen, Sheng Chen or Zhao Qi Li had any reason at all to lie, but Guan Huan Chen and Zhao Qi Li affirmatively testified that they had no bias axxxxinst Mr. xxxxx: Guan Huan Chen claimed to hold "no animosity," and Zhao Qi Li claimed that he did not hold "any kind of grievance axxxxinst" Mr. xxxxx (Tr. 373, 451, 483).

Moreover, the trial court's preclusion of the cross-examination entirely eliminated the defense. The heart and soul of the defense theory was, as counsel explained in his opening statement to the jury, that the "so-called victims" were motivated to get Mr. xxxxx "out of the way" because they were employed by a xxxxmbxxxxxg house that is "in competition with people who were employing Mr. xxxxx" in a xxxxmbxxxxxg house (Tr. 48-49). By precluding the cross-examination of the witnesses on this matter, the trial court undermined the possibility that the defendant could raise a reasonable doubt, especially since the defense did not call its own fact witnesses but sought to raise doubts by way of cross-examination. Indeed, the trial court's preclusion of the cross-examination allowed the prosecutor to argue to the jury that there was no evidence suggesting that the witnesses had a motive to fabricate (Tr. 1198):

Remember, now, . . . there's no showing here anywhere, there's no evidence anywhere in the record that anybody ever got together -- they keep talking about getting together to do stories and stuff. There's no evidence that any of that ever happened, any, even, motive for people to get together and try to put something on these two [defendants].⁽¹⁰⁾

A. Standard of Review

The examination of witnesses generally is a matter left to the discretion of the trial court and is reviewed for an abuse of discretion. See, e.g., Howard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967).

Where the defendant does not object at trial, the appellate court generally reviews for plain error. United States v. Olano, 507 U.S. 725, 734 (1993). However, an objection lodged by one defendant in a joint trial may be attributable to his or her co-defendant, allowing the appellate court to apply a harmless error analysis. United States v. Pardo, 636 F.2d 535, 541 (D.C. Cir. 1980). This Court stated in Pardo:

We recognize that in certain situations, it may be redundant and inefficient to require each defendant in a joint trial to stand up individually and make every objection to preserve each error for appeal. We certainly do not establish such a requirement.

See United States v. Washington, 12 F.3d 1128, 1135 n.2 (D.C. Cir.) (leaving open whether evidentiary issue was preserved by virtue of codefendant's objection), cert. denied, 115 S. Ct. 98 (1994); United States v. Daniels, 437 F.2d 656, 659 (D.C. Cir. 1970) (where only one defendant requested jury instruction, court treated other defendant's appeal "as if the request for the charge had been made and denied, as undoubtedly the trial judge would have done"). See also United States v. Hernandez, 921 F.2d 1569, 1582 & n.15 (11th Cir.) (co-defendant's objection to testimony brought issue to court's attention and preserved it for others even where court had elected not to employ automatic adoption procedure), cert. denied, 500 U.S. 958 (1991); United States v. Brown, 562 F.2d 1144, 1147 n.1 (9th Cir. 1978) (where one defendant objects and brings issue to attention of trial court, further objections by other defendants are unnecessary); United States v. Lefkowitz, 284 F.2d 310, 313 n.1 (2d Cir. 1960) (same).

Here, Mr. xxxxx's co-defendant objected to the trial court's questions of Agent Sheppard, specifically explaining to the court that its questions asked Agent Sheppard "to give an opinion about whether or not these witnesses tell the truth" (Tr. 1039). The trial court overruled the objection (id.). There is no reason to believe that the trial court would have ruled differently had appellant xxxxx lodged the same objection. Thus, Mr. xxxxx's convictions should be reviewed to determine whether the error can be said to be harmless. Kotteakos v. United States, 328 U.S. 750 (1946).

B. The Trial Court Committed Prejudicial Error When It Solicited the FBI Case Agent's Opinion About the Credibility of the Government's Other Witnesses

It is the exclusive province of the jury to determine the believability of the witnesses. United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987); United States v. St. Pierre, 812 F.2d 417, 419 (8th Cir. 1987); Billeci v. United States, 184 F.2d 394, 401 (D.C. Cir. 1950) ("The jury is the sole judge of the credibility of the witnesses."). For that reason, "witnesses may not opine as to the credibility of the testimony of other witnesses at trial." Forrester, 60 F.3d at 63; Boyd, 54 F.3d at 871 ("Determinations of credibility are for the jury, not for witnesses.") (quoting Richter, 826 F.2d at 208).

The trial court's point-blank questions to FBI Agent Sheppard about the "acurra[cy]" and "reliability" of the government's other witnesses bolstered those witnesses' credibility and invaded the province of the jury (Tr. 1039-1040). FBI Agent Sheppard was called as a defense witness to complete the impeachments of Guan Huan Chen, Zhao Qi Li and Hung T'ien xxxxo by confirming what those witnesses had told him (or had not told him) during their interviews. After direct and cross-examination, the trial court undertook its own examination, asking Sheppard to confirm that the witnesses' inconsistencies and omissions were "a problem of people not volunteering additional information as opposed to the reliability of the information they do provide you," and to confirm that "with the information that they do provide you, that that is basically accurate" (Tr. 1039-1040). Agent Sheppard testified that all of the witnesses had been truthful and reliable, and that their stories were consistent (Tr. 1040) (emphasis added):

Some of [the problem] is the providing of additional information, in other words, going beyond the boundaries of the question asked, and some of it is the order in which the information is provided. . . . However, all of the information that we've got from witness to witness, there are some basic facts that never changed, and the results of our searches confirmed what the witnesses told us.

Agent Sheppard's testimony improperly bolstered the credibility of the government's other witnesses.⁽¹¹⁾ Forrester, supra; Maurer v. Department of Corrections, 32 F.3d 1286, 1289 (8th Cir. 1994) (witnesses' testimony that victim seemed sincere when she said she was raped constituted reversible error); United States v. Price, 722 F.2d 88, 90 (5th Cir. 1983) (admission of IRS agent's testimony that he relied in his investixxxxtion on statements of two people because he "believed them" constituted reversible error).

The Second Circuit recently reversed the appellant's convictions in Forrester, supra, where a DEA agent, whose reports of interviews were being used to complete the impeachments of the government's witnesses, bolstered the testimony of one of the witnesses. There, three women pleaded guilty and testified that they had acted as drug couriers for the defendant ringleader, "Sam." Id. at 56. The defense maintained that the women had fabricated the story of "Sam" in order to obtain better plea barxxxxins for themselves. Id. The defense theory was supported by impeaching evidence that the DEA agent's notes, written immediately after his interviews with the women, made no mention of "Sam." Id. at 58. In addition, the out-of-court identification of the defendant as "Sam" by one of the women, Ms. Golemba, was impeached by the fact that it also was not reported in the agent's notes. Id. In an effort to rehabilitate Ms. Golemba, the prosecutor asked the agent whether "[Golemba's] testimony [in court] was in any way inconsistent with the statement that she xxxxve [him] on March 1, 1989?" Id. at 63. The agent responded, "No, I hadn't found her testimony to be inconsistent." Id. The judge immediately instructed the jury that "it is the function of the jury to determine the credibility of each witness." Id. The Second Circuit was "troubled by the fact that the government seems to have been making a determined effort to cloak a witness, whose credibility was at best irresolute, with the 'heightened credibility' that government agents are afforded by some jurors." Id. The conviction was reversed because, among other errors, the government "improperly solicited a lay opinion from an official witness as to the credibility of another witness." Id. at 64.

Agent Sheppard's improper testimony here goes well beyond the testimony in Forrester. And, making matters even worse, the judge himself, rather than the prosecutor, elicited Agent Sheppard's opinion that the government's witnesses were truthful and their stories accurate. See United States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988) (improper cross-examination is more prejudicial when it is conducted by the court, rather than the prosecutor); United States v. Barbour, 420 F.2d 1319, 1321 (D.C. Cir. 1969).⁽¹²⁾ This Court has observed that, "particularly when the questioning is designed to elicit answers favorable to the prosecution, 'it is far better for the trial judge to err on the side of [a]bstention from intervention in the case,'" United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir.), cert. denied, 493 U.S. 535 (1989) (quoting United States v. Green, 429 F.2d 754, 760 (D.C. Cir. 1970), and has explicitly warned trial judges to proceed with caution when questioning witnesses due to the "danger that the judge may elicit from the witness responses hurtful to the accused -- responses to which the jury may assign peculiar weight because of their ostensible judicial sponsorship." Barbour, 420 F.2d at 1321 (emphasis added); Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir 1964) (judge's questions of witnesses risk jury's perception that judge is "on the side of the prosecution").

Notwithstanding this Court's warnings, the trial court's examination of Agent Sheppard not only elicited Sheppard's opinion that the witnesses were reliable and truthful, but clearly implied to the jury that the judge also believed the witnesses to be reliable and truthful: The sole purpose of the court's questions was to elicit testimony that the witnesses were reliable and their stories accurate. In fact, it was the trial court, rather than Agent Sheppard, who introduced the words "accurate" and "reliability" into the colloquy (Tr. 1039-1040). And, the court's questions of Sheppard suggested the answers; that the witnesses provided "basically accurate" information, and that the inconsistencies and omissions were due to the "problem of people not volunteering information" rather than "the reliability of the information" (Tr. 1039-1040).

Moreover, the trial court prefaced his final question as to the other witnesses' reliability by questions designed to establish Agent Sheppard's expertise in distinguishing between unreliable witnesses and witnesses who merely experience a language or cultural barrier. See Tr. 1030-1040 (stating that "I'm asking him about his experience," and establishing Agent Sheppard's 15 years experience conducting "ethnic investixxxxtions" involving "people who have a language problem"). Even expert witnesses, however, are not permitted to pass judgment on a witness' credibility or the truthfulness of a victim's story. Westcott v. Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995); United States v. Scop, 846 F.2d 135, 142 (2d Cir. 1988); United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986). Indeed, the risk that a jury will surrender its own judgment as to a witness' credibility is even greater where an expert gives the witness' story the "stamp of truthfulness." Azure, 801 F.2d at 340. Here, because the court solicited testimony about Agent Sheppard's fifteen years of experience conducting "ethnic investixxxxtions" for the Federal Bureau of Investixxxxtions and then, in the very next breath, solicited testimony that Sheppard found the witnesses to be truthful, Sheppard's "stamp of truthfulness" likely carried even greater weight.

The admission of the improper bolstering testimony was not harmless. The outcome of this case turned on whether the jury found the so-called "ethnic" witnesses to be credible; absent a favorable determination of those witnesses' truthfulness, the jury would not have convicted. Agent Sheppard's testimony certainly made it more likely that, despite the repeated impeachment of the witnesses, the jury would determine that they were credible. See Azure, 801 F.2d at 341 (where credibility of key government witness was bolstered by expert's testimony that she was believable, error was not harmless).

Furthermore, "when bolstering testimony suggests to the jury that it may shift to a witness the responsibility for determining the truth of the evidence, its admission may constitute reversible error." Price, 822 F.2d at 90. Here, the questions put to Agent Sheppard by the trial court, and Agent Sheppard's pseudo-expert assessment of the witnesses' credibility, certainly suggested to the jury that it could shift to Sheppard the responsibility for determining the truth of the evidence.

Neither was the effect of the improper testimony ameliorated by an immediate curative instruction. Given the serious potential that Agent Sheppard's bolstering testimony influenced the jury's own determination, the fact that at the end of the entire trial the trial court instructed the jurors that they are the "sole judges of the credibility of the witnesses" cannot have been sufficient to cure the error.⁽¹³⁾ Forrester, 60 F.3d at 53 (admission of bolstering testimony not harmless despite trial court's immediate instruction to jury that "it is the function of the jury to determine the credibility of each witness"); Price, 722 F.2d at 90 (admission of bolstering testimony not harmless despite trial court's immediate instruction to jury that "they are the sole judges of the credibility of the witnesses, including this witness and all other witnesses"). Cf. United States v. Piva, 870 F.2d 753, 760 (1st Cir. 1989) (state trooper's testimony that he told informant that he could not work with informant unless he could trust informant to tell truth was harmless in light of immediate curative instruction to jury that trooper's opinion of informant's credibility "was of no concern to them and that they had to make their own evaluation of the informant's testimony").

Even should the Court apply a plain error standard of review, Mr. xxxxx's convictions must be reversed because the solicitation of testimony bolstering the government's witnesses' credibility was plainly erroneous. Olano, supra. This error was plain in the sense of being obvious, and substantially undermined the fairness of the trial. Id. at 1777.

It has been clear in this circuit since at least 1950 that assessments of witnesses' credibility are the sole province of the jury. Billeci, 184 F.2d at 401. Thus, the error was plain. For the reasons discussed supra at 42-43, the court's solicitation of Agent Sheppard's testimony substantially undermined the fairness of the trial. In short, Agent Sheppard's testimony that the "basic facts" of "all of the information that [the FBI] got from witness to witness" "never changed," and that the witnesses' stories were "confirmed" by the FBI's searches very likely swayed the jury decision whether to believe the witnesses' testimony.

IV. MR. xxxxx'S CONVICTION FOR VIOLATION OF 18 U.S.C. з 924(c) WAS IMPROPER IN LIGHT OF THE SUPREME COURT'S SUPERVENING DECISION IN BAILEY v. UNITED STATES.

A. Standard of Review

Whether the jury instructions properly described the elements of the offense is reviewed de novo. United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995).

B. The Supervening Decision In Bailey v. United States Requires Reversal Of The 18 U.S.C. з 924(c) Convictions

The Supreme Court in Bailey v. United States, 116 S. Ct. 501 (1995), held to obtain a conviction under the "use" prong of 18 U.S.C. з 924(c) the government must prove "that the defendant actively employed the firearm during and in relation to the predicate crime," specifically finding that Congress intended to "require more than possession to trigger the statute's application." Id. at 506, 509. The Court xxxxve as examples of what would constitute "use" under the statute such actions as "brandishing, displaying, bartering, striking with, . . . firing or attempting to fire, a firearm," and "even an offender's reference to a firearm in his possession could satisfy з 924(c)." Id. at 508. The Court explicitly rejected the argument that a з 924(c) conviction for "use" could be based on placement of a firearm nearby for protection, "to provide a sense of security or to embolden." Id. The Court held that the word "use" in з 924(c) cannot be used "to penalize drug trafficking offenders for firearms possession." Id. The Court also found that conceaxxxxxg a gun "nearby to be at the ready for an imminent confrontation," was not use of a firearm under з 924(c). Id. at 508. The decision in Bailey applies to the present case, which was pending on direct review when Bailey was decided. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

The jury instructions in the present case were erroneous under Bailey, for they allowed a conviction under the "use" prong of the statute if the jury found that Mr. xxxxx had "the firearm available to assist or aid in the commission of the crime," even if he did not "fire[] or even display[] a weapon." (Tr. 4/13 52) (emphasis added). This court recently stated, in accord with the decisions of the Supreme Court in Griffin, 502 U.S. at 58-59, and Yates, 354 U.S. at 312, that when one possible basis of a jury verdict is lexxxxlly insufficient, as opposed to factually unsupported, "the conviction must be reversed." United States v. Colxxxxxs, 56 F.3d 1416 (D.C. Cir.), cert. denied, 116 S. Ct. 737 (1996).

The jury in the present case may have convicted Mr. xxxxx for "use" of a firearm based on a conclusion that the weapon was "available to assist or aid in the commission of the crime," an impermissible basis under Bailey. Under these circumstances, "it is impossible to tell which ground the jury selected." Colxxxxxs, 56 F.3d at 1418 (quoting Yates, 354 U.S. at 312). See also United States v. Miller, 84 F.3d 1244 (10th Cir. 1996) (reversing з 924(c) conviction where jury improperly instructed).

Mr. xxxxx's failure to object at trial to the instructions defining the elements of the з 924(c) offense does not defeat his claim. This court has held that:

Under the supervening-decision doctrine, we may consider issues not raised at trial where a supervening decision has changed the law in appellant's favor and the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless.

Washington, 12 F.3d at 1139.

Mr. xxxxx's trial took place in March-April, 1995. By that time it was clearly established in this circuit that instructions such as the one given in the present case, allowing conviction without proof of use in an affirmative manner, were proper. Indeed, several years before the trial in the present case, in Anderson, 881 F.2d at 1140-41, this court called "almost frivolous" a challenge to a jury instruction permitting a з 924(c) conviction if a gun was "convenient of access or within reach." Subsequent cases, all decided before the trial in the present case, confirmed that actual or constructive possession and availability for assistance were sufficient for a з 924(c) conviction. See United States v. Morris, 977 F.2d 617, 621 (D.C. Cir. 1992); United States v. Jefferson, 974 F.2d 201, 206-07 (D.C. Cir. 1992); United States v. Bruce, 939 F.2d 1053, 1055 (D.C. Cir. 1991).

This Court has invoked the supervening decision doctrine to allow a challenge on appeal to an issue not raised in the district court where intervening Supreme Court decisions arguably undermined the rationale of prior settled caselaw in this circuit. United States v. Rhodes, 62 F.3d 1449, 1452 (D.C. Cir. 1995), vacated and remanded on other grounds, 116 S. Ct. 1562 (1996). In the present case, the Supreme Court's decision in Bailey did more than undermine the rationale of this circuit's caselaw (and that of every other circuit) -- it reversed it outright. Therefore, appellant's failure to object to the instructions should be excused and Mr. xxxxx's з 924(c) convictions must be reversed.

Pursuant to Federal Rule of Appellate Procedure 28(i), appellant xxxxx hereby incorporates and adopts by reference the argument on set forth in the Brief of Appellant Qiu xxxxo (No. 95-3172) as argument Point I. Mr. xxxxx preserved this issue for appellant review (A. 26, 49; Tr. 315-321, 865-871, 941-948, 953-968).

Pursuant to Federal Rule of Appellate Procedure 28(i), appellant xxxxx hereby incorporates and adopts by reference the argument set forth in the Brief of Appellant Qiu xxxxo (No. 95-3172) as argument Point II. Mr. xxxxx preserved this issue for appellant review (A. 26, 49; Tr. 315-321, 865-871, 941-948, 953-968, 1109).

CONCLUSION

Because the trial court erred in denying appellant's motion to dismiss the indictment and in denying appellant's motion for judgment of acquittal, the convictions for Count One through Four of the indictment, charging violations of 18 U.S.C. з 1203 and 18 U.S.C. з 924(c), must be reversed.

All of Mr. xxxxx's convictions must be reversed and the case remanded for a new trial because the trial court erroneously precluded cross-examination of the government's witnesses and erroneously elicited testimony bolstering those witnesses' credibility. Even if the Court concludes that those errors do not warrant reversal, the convictions under 18 U.S.C. з 924(c)(1) must be reversed and remanded for a new trial because the trial court's instructions as to those charges were erroneous.

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing brief for appellant, Hung Shun xxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).

_________________________________

Sandra G. Roland

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 30th day of July, 1996.

___________________________________

Sandra G. Roland

1. "A." citations refer to pages of the Appendix filed with this brief. "Tr." refers to pages of the sequentially numbered transcripts of the trial proceedings, beginning with page one on March 22, 1995, and ending with page 1204 on April 12, 1995. The jury instructions and verdict, from April 13, 1995, are transcribed separately and are referred to herein as "Tr. 4/13" followed by the page number. All transcript pages cited in this brief are reproduced in the Appendix.

2. The transcripts refer to witnesses of Chinese descent by his or her family name first, followed by the individual name (e.g., "Chen, Sheng"). For uniformity, this brief will use the family name as a surname for all witnesses (e.g., "Mr. Sheng Chen" or "Agent Robert Trent").

3. Hung T'ien xxxxo pleaded guilty in federal court in New York to hostage-taking and using or carrying a firearm during and in relation to a crime of violence (Tr. 658). In relation to this case, he pleaded guilty to two counts of hostage-taking and one count of possession of a firearm by an illexxxxl alien (Tr. 656). In a separate, unrelated case in which he kidnapped someone in April, 1994, Hung T'ien xxxxo pleaded guilty before the Honorable Stanley Sporkin to one count of hostage-taking and one count of possession of a firearm by an illexxxxl alien (Tr. 759-760). At the time of his testimony, he had not yet been sentenced in any of the three cases (Tr. 772).

At trial, Hung T'ien xxxxo testified that while he was detained at the D.C. jail in the days before the trial, he saw Hung Shun xxxxx who asked him whether he attended a hearing related to this case and asked, "[W]hat happens? Do you have anything to say?" (Tr. 664, 666). Hung T'ien xxxxo responded, "I determined to converse -- to commit to this case. I'm guilty" (Tr. 666).

4. There was some dispute among the witnesses about when the hostage-taking occurred. Hung T'ien xxxxo testified, "I think it happened in December" (Tr. 661). When Guan Huan Chen first reported the alleged incident to the FBI, he told them that it occurred in February (Tr. 332, 385, 970, 993, 1056). Jin Xin Lu responded affirmatively before the grand jury to a question from the prosecutor using February 21, 1994, as the date of the incident (Tr. 182-184).

5. One person who was present during one of the interviews, INS Agent Wayne Krawczyk, believed that Guan Huan Chen had reported that two people were taken hostage (Tr. 1087).

6. The trial court instructed the jurors that Guan Huan Chen's testimony that two of the intruders worked at a xxxxmbxxxxxg house was not admitted for its truth, but merely to show why Guan Huan Chen acted as he did (Tr. 274).

7. According to Guan Huan Chen, co-defendant Qiu xxxxo came into the house shortly before the negotiations bexxxxn, and participated in them along with Hung T'ien xxxxo and defendant Hung Shun xxxxx (Tr. 281, 292, 300, 303). However, Hung T'ien xxxxo, Sheng Chen and Zhao Qi Li all testified that co-defendant Qiu xxxxo was in the basement during the negotiations (Tr. 475, 480, 508, 629, 711-712).

8. On direct examination, Sheng Chen identified Hung Shun xxxxx as the person who hit him at 501 L Street, but on cross-examination said that Hung Shun xxxxx hit him at 10 N Street, but did not hit him at 501 L Street (Tr. 635, 645).

9. As counsel made clear in his opening statement to the jury, the defense theory related to Sheng Chen and Zhao Qi Li as well as Guan Huan Chen. See e.g., Tr. 48 ("[T]he victims in this case are in competition with people who were employing Mr. xxxxx, xxxxmbxxxxxg house, illexxxxl xxxxmbxxxxxg houses.") and Tr. 52 ("[Besides the cooperating co-defendant] there are two other people that are going to come in, three other people. They have other motives, other than [the cooperating co-defendant]. . . . . They have economic motives, competition, get the competition out of the way.").

The government called Guan Huan Chen to the witness stand before Sheng Chen and Zhao Qi Li. After the trial court ruled that Guan Huan Chen could not be cross-examined on the motive to lie because it was "tangential" and was not supported by a good faith basis, counsel did not attempt thereafter to relitixxxxte the same issue with the subsequent witnesses. There was no reason to believe that the trial court's ruxxxxxg would have been any different with respect to cross-examination of Sheng Chen and Zhao Qi Li.

10. In addition, the preclusion of the cross-examination permitted the prosecutor to answer the defense challenge to "Answer the defense. Answer those inconsistencies," by asking the jury, "Answer what defense? I haven't seen one yet. All I've heard is a lot of people pounding." (Tr. 1191-1192).

11. In addition, during Mr. xxxxx's cross-examination of Zhao Qi Li, the trial court suggested that Zhao Qi Li's testimony was truthful (Tr. 507) (emphasis added):

Q. And that when you were in the basement, you also testified that when you were in the basement you weren't handcuffed any more. Do you remember that?

A. That is correct.

Q. When you spoke to -- and that's because that was true, what you were testifying to in the courtroom today; is that right?

PROSECUTOR: Objection as to vagueness. What was true?

COURT: I assume all of his testimony.

Furthermore, when the defendant called Agent Robert Trent to complete the impeach of Zhao Qi Li, the trial court elicited testimony from Agent Trent that bolstered Zhao Qi Li's credibility (Tr. 1048) (emphasis added):

Q. Agent Trent, [Zhao Qi Li] also told you that this person, Chen, Guan Huan, came to N Street with a person known as No Teeth; isn't that right?

A. I believe that's in that report, yes.

Q. That's because he told you that? That's why it's in the report?

A. Right.

COURT: Is there such a person as No Teeth? Did you see him? Did you meet him?

AGENT: I don't believe I've ever met him. I believe he exists.

COURT: But you never met him?

AGENT: Not that I know of, no. I've never met anybody by that nickname.

12. Of course, "[t]here is little doubt that [a trial court] may, when appropriate, question a witness 'in aid of truth and in furtherance of justice.'" United States v. Wyatt, 442 F.2d 858, 859 (D.C. Cir. 1971) (quoting Gomila v. United States, 146 F.2d 372, 374 (5th Cir. 1944). A trial court's examination of a witness might be appropriate where the "testimonial presentation promotes fuzziness, as where testimony is inarticulately or reluctantly given." Barbour, 420 F.2d at 1321. Here, the prosecutor was fully competent in his cross-examination and Agent Sheppard's testimony was not "fuzzy," nor "inarticulately or reluctantly given."

13. The trial court delivered the standard "Redbook instruction on credibility final instructions to the jury (Tr. 4/13 29):

Now, in determining whether the government has established the charge axxxxinst a defendant beyond a reasonable doubt, you must consider and weigh the testimony of all the witnesses who have appeared before you.

You are the sole judges of the credibility of the witnesses. You alone are to determine whether to believe any witness and the extent to which any witness should be believed. If there is any conflict in the testimony, it is your function to resolve the conflict and determine where the truth lies.

. . .

The trial court summarized, in its own words, the jury's task with respect to credibility determinations (Tr. 4/13 31) (emphasis added):

. . . [W]hat you must try to do in deciding credibility is to size a person up in light of his or her demeanor, the explanations given, and in light of all the other evidence in the case, just as you would in any important matter where you were trying to decide if a person is truthful, straightforward and accurate in his or her recollection. In deciding the question of credibility, remember that you should use your common sense, your good judgment and your experience.