TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

JURISDICTION 1

ISSUES PRESENTED FOR REVIEW 1

STATUTES AND RULES 2

STATEMENT OF THE CASE 3

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below 3

B. Statement of Facts 4

1. The First Trial 4

a. The Incommoding Impeachment 6

b. The Missing Key 9

c. Why The Jury Hung 10-1 For Acquittal 10

2. The Second Trial 11

a. The Preclusion Of The Incommoding Impeachment 12

b. The Negating Of The Missing Evidence Instruction 14

c. The Prosecutor's Improper Closing Arguments 15

SUMMARY OF ARGUMENT 17

ARGUMENT 19

I. THE COURT ERRED IN RESTRICTING CROSS-EXAMINATION OF THE GOVERNMENT'S SOLE WITNESS CONCERNING HIS INTENT IN APPROACHING MR. xxxxxx. 19

A. Standard of Review 19

B. The Precluded Cross-Examination Would Have

Dispelled The Inference That Mr. xxxxxx Had

Been Engaged In Misconduct When The Police First

Saw Him And Impeached Officer Riddle No Matter

Which Way He Answered 19

II. THE EXCLUSION OF THE GOVERNMENT'S DUTY TO PRESERVE THE KEY

AND THE PROSECUTOR'S ARGUMENT OF FACTS NOT IN EVIDENCE COMBINED TO NEGATE THE MISSING EVIDENCE INSTRUCTION 26

A. Standard of Review 26

B. Mr. xxxxxx Was Deprived Of The Adverse Inference Arising From The Absence Of The Key When He Was Precluded From Eliciting The Government's Duty To Preserve The Key And The Prosecutor Was Permitted  To Testify To An Explanation For Its Absence 27

III. THE PROSECUTOR'S IMPROPER CLOSING ARGUMENTS DEPRIVED MR. xxxxxx OF A FAIR TRIAL 34

A. Standard of Review 34

B. The Prosecutor Violated The Confrontation Clause When She Vouched For Her Sole Witness's Credibility By Telling The Jury That The Other Six Officers Would Have Said The "Same Thing" 34

IV. THE $100 SPECIAL ASSESSMENT VIOLATED THE EX POST FACTO CLAUSE 42

A. Standard of Review 42

B. The Court Relied On A Post-Offense Statutory Amendment To Impose A Penalty Greater Than That In Effect At The Time Of The Alleged Offense 42

CONCLUSION 44

TABLE OF AUTHORITIES

CASES

*Davis v. Alaska,

415 U.S. 308 (1974) 24

*Delaware v. Van Arsdall,

475 U.S. 673 (1986) 19, 24, 25

Jackson v. United States,

353 F.2d 862 (D.C. Cir. 1965) 22

United States v. Anderson,

881 F.2d 1128 (D.C. Cir. 1989) 24

United States v. Boyd,

54 F.3d 868 (D.C. Cir. 1995) 29

United States v. Castro,

89 F.3d 1443 (11th Cir. 1996),

cert. denied, 117 S. Ct. 965 (1997) 37

*United States v. Donato,

99 F.3d 426 (D.C. Cir. 1996) 27, 29-33, 40-41

United States v. Forlorma,

94 F.3d 91 (2d Cir. 1996) 31, 33

*United States v. Foster,

982 F.2d 551 (D.C. Cir. 1993) 21, 29, 30, 37, 40

United States v. Foster,

986 F.2d 541 (D.C. Cir. 1993) 25

United States v. Frederick,

78 F.3d 1370 (9th Cir. 1996) 42

United States v. Garces,

133 F.3d 70 (D.C. Cir. 1998) 29

United States v. Gaviria,

116 F.3d 1498 (D.C. Cir. 1997),

cert. denied, 118 S. Ct. 865 (1998) 43

United States v. Glenn,

64 F.3d 706 (D.C. Cir. 1995) 36

United States v. Hardy,

37 F.3d 753 (1st Cir. 1994) 41

United States v. Hilliard,

569 F.2d 143 (D.C. Cir. 1977) 37

United States v. Jordan,

810 F.2d 262 (D.C. Cir.),

cert. denied, 481 U.S. 1032 (1987) 37

United States v. Miller,

900 F.2d 919 (6th Cir. 1990) 43

*United States v. Molina-Guevara,

96 F.3d 698 (3d Cir. 1996) 34, 38, 39

United States v. Monaghan,

741 F.2d 1434 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1085 (1985) 26

*United States v. Murrah,

888 F.2d 24 (5th Cir. 1989) 37

United States v. Rezaq,

134 F.3d 1121 (D.C. Cir. 1998) 43

United States v. Roberts,

119 F.3d 1006 (1st Cir. 1997) 35

United States v. Small,

74 F.3d 1276 (D.C. Cir.),

cert. denied, 517 U.S. 1229 (1996) 27, 29, 30, 32

United States v. Stock,

948 F.2d 1299 (D.C. Cir. 1991) 21, 25

United States v. Tarantino,

846 F.2d 1384 (D.C. Cir.),

cert. denied, 488 U.S. 867 (1988) 26

*United States v. Teffera,

985 F.2d 1082 (D.C. Cir. 1993) 29

*United States v. Young,

470 U.S. 1 (1985) 36

Whren v. United States,

517 U.S. 806 (1996) 23

STATUTES

18 U.S.C. § 922(g)(1) 3, 11

18 U.S.C. § 924(c) 3, 4

18 U.S.C. § 2248 (statutory notes) 43

18 U.S.C. § 3013 42-44

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) 3

Mandatory Victims Restitution Act of 1996,

Pub. L. No. 104-132, Title II, §§ 210 and 211 42, 43

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________

No.

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

EDWARD xxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________________

BRIEF FOR APPELLANT

____________________________________________

JURISDICTION

The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal from the final judgment of the district court having been filed on June 26, 1997, this Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial court committed reversible Confrontation Clause error in prohibiting at retrial cross-examination of the arresting officer about whether his intent in approaching Mr. xxxxxx was to warn him about "incommoding" where the officer was the government's sole witness, his answer would have been inconsistent with prior testimony whether it was "yes" or "no," and Mr. xxxxxx's first jury raised the officer's credibility in explaining why they hung 10-1 for acquittal.

II. Whether Mr. xxxxxx was denied a fair trial when the court excluded evidence of the police department's obligation to preserve as evidence the car key Mr. xxxxxx allegedly dropped and the prosecutor improperly argued that the key had been returned to the rental car company -- a fact not in evidence -- when these errors negated the court's missing evidence instruction by suggesting that the key's absence had been "sufficiently accounted for or explained."

III. Whether Mr. xxxxxx was denied a fair trial when the prosecutor in closing argument improperly vouched for the testimony of her sole witness by telling the jury that the officers the government did not call would have said the "same thing."

IV. Whether the special assessment violated the Ex Post Facto Clause.

STATUTES AND RULES

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

STATEMENT OF THE CASE

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

On May 22, 1996, a federal grand jury returned a four-count superseding indictment against Mr. Edward xxxxxx, charging him with two counts of possession with intent to distribute phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) (Counts One and Two), one count of using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count Three), and one count of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Four). (Appx:12-14). ⁽¹⁾ The charges arose from the discovery of a gun and PCP-laced marijuana in a green Mazda rental car (Counts One, Three and Four) and the discovery of PCP-laced marijuana in a grey Mazda parked nearby (Count Two).

Before trial began, the government dismissed Count Two of the indictment, leaving only the three charges related to the green rental car (Trial-1(9/4/96):18), and the district court, the Honorable Stanley Sporkin, severed the felon-in-possession count (Count Four) to avoid prejudicial spillover from the prior felony (Trial-1(9/5/96):11-12). Thus, on September 9, 1996, a jury trial began on Count One (PWID-PCP) and Count Three

(§ 924(c)). After one juror became ill during deliberations and the parties agreed to continue with 11 jurors (Trial-1(9/12/96):1-14), the jury hung 10-1 for acquittal and the court declared a mistrial (Trial-1(9/17/96):4-5, 9).

On February 27, 1997, a jury trial commenced before the Honorable Harold H. Greene on the severed felon-in-possession count. The jury returned a guilty verdict the next day. On June 18, 1997, the court sentenced Mr. xxxxxx to 110 months of imprisonment, 3 years of supervised release, and a $100 special assessment. (Appx:15-18). Mr. xxxxxx filed a timely notice of appeal. (Appx:19).

B. Statement of Facts

1. The First Trial

Officers William Riddle and Anthony McGee were the government's main witnesses at the first trial. The government also called a drug expert, a chemist, a records custodian from Enterprise Rent-A-Car, and four officers in the chain of custody for the drugs and gun seized from the car and jewelry and cash ($210) seized from Mr. xxxxxx's person.

Officer Riddle testified that on April 9, 1996, at 6:00 p.m., he was part of a group of approximately 10 narcotics officers ("jumpouts") (Trial-1(9/9/96):82) in one marked and two unmarked cars patrolling for hand-to-hand narcotics transactions. (Trial-1(9/9/96):34-36). Upon entering the 600 block of 46th Street, S.E. -- known as Simple City -- Riddle saw Mr. xxxxxx and two other men standing together on the sidewalk. (Trial-1(9/9/96):36-37). Upon observing the officers, the group split apart. (Trial-1(9/9/96):38). As Mr. xxxxxx walked toward the officers, Riddle saw him drop an object from his left hand. (Trial-1(9/9/96):38, 83, 84). After Officer McGee and other officers had stopped Mr. xxxxxx and the others, Riddle picked up the item, and discovered that it was an Enterprise Rent-A-Car key ring with a single key on it. (Trial-1(9/9/96):39, 62, 81, 101-102). Officer Riddle found a green Mazda parked nearby with an Enterprise emblem on the trunk and a bag of green leafy substance protruding from under the driver's seat. After opening the door -- which was not locked -- and smelling PCP, Riddle walked over to tell Officer McGee to hold onto Mr. xxxxxx. (Trial-1(9/9/96):41, 58). He then returned to the car where, under the driver's seat, he found PCP-laced marijuana and a handgun. (Trial-1(9/9/96):40-41). He also found a driver's license in Mr. xxxxxx's name on the console and documentation of the rental of that car and others in Mr. xxxxxx's name in the glove compartment. (Trial-1(9/9/96):41-42).

Officer McGee testified that as he walked toward Mr. xxxxxx, he saw him drop a set of keys from his right, not his left, hand and saw Riddle bend down to pick them up. (Trial-1(9/10/96):35-38, 75-76, 79-81). Riddle walked away but at some point came back and signaled McGee to turn Mr. xxxxxx around so he was

facing away from where Riddle was "messing around with the car" in the parking lot. (Trial-1(9/10/96):38, 41-42, 86).

a. The Incommoding Impeachment

Defense counsel sought to dispel any inference that Mr. xxxxxx had attracted the jumpouts' attention because he had been engaged in wrongdoing and then successfully impeached Riddle concerning his intent in approaching Mr. xxxxxx (Trial-1(9/9/96):62-67):

Q And he wasn't violating the law in any way, was he?

A He was incommoding which is three or more persons gathered on a sidewalk to obstruct the flow of pedestrian traffic.. . .

Q . . . Now, can you tell us who called and said there are three guys in the parking lot, and I tried to walk by with my groceries and I couldn't get through? Did somebody make that call?

A To my knowledge, no, sir.

Q Any how many arrests have you made for incommoding?. . .

A I would say in the area of 20 . . . [i]n six years.

Q So you make about three and a half arrests a year for incommoding?

A On an average, yes, sir.

. . .

Q So if two people are on the sidewalk having a conversation, that wouldn't be incommoding?

A That's correct.

Q . . . But if you have three, that's against the law?

A Three or more, yes, sir.

Q . . . And you had the bare minimum, you had three, correct?

A Correct.

Q . . . Did you see when you approached whether they were obstructing the flow of anyone walking down the street?

A I did not observe anyone attempting to pass at that time, no, sir. . . . I don't know if the law actually reads where you have to be preventing a person at that particular time or obstructing the flow.

Q So you think it's unlawful . . . for three people to assemble on a sidewalk if that's going to obstruct people coming down it?

A That's correct.

Q . . . Were the other two people arrested for incommoding that were there with Mr. xxxxxx?

A No, sir. Mr. xxxxxx was not arrested or charged with incommoding either.

Q Now, when you were approaching him, was that your intent to question him about his incommoding?

A My intent was to advise him that they were breaking the law and that they were going to need to move on.

Q . . . Well, when you got out of your car, Investigator Riddle, you noticed that everybody just started walking to wherever they were going, correct?

A That's correct.

Q So the incommoding had evaporated, did it not?

A That's correct.

Q . . . So then once you saw that incommoding was no longer a problem, did you say, well, I solved another case and go back to your car?

A No, sir, I did not.

Q . . . [Y]ou kept walking towards [Mr. xxxxxx], correct?

A Yes, sir, I did.

Q . . . And at that point they had a right to go where they wanted to go, correct?

A At that point they had -- if the technical answer is what you're looking for, at that point they had committed a misdemeanor violation in my presence.

Q And was that your basis for stopping him?

A Mr. xxxxxx was not stopped until after he had dropped the key to the ground.

Q No, my question to you was that your intent?

A My intent was to stop them and advise them that they were breaking the law and that they needed to disperse and move on and refrain from doing it in the future. My intent was not to arrest them for that charge.. . .

Q Your intent was to tell them that three or more people on the sidewalk blocking the flow of traffic on the sidewalk is against the law, right?

A That's correct.

Riddle was subsequently impeached with his prior sworn suppression hearing testimony that, although Mr. xxxxxx had been incommoding, Riddle's intent in approaching him had not been to "enforce the incommoding regulation" or "to investigate incommoding or conspiracy to incommode." (Trial-1(9/9/96):99-101; Trial-1(9/11/96):80-81; Trial-1:Defendant's Ex. 4 (prior sworn testimony) (Appx:20-25)). Officer McGee testified that the group was not incommoding. (Trial-1(9/10/96):66-67).

b. The Duty To Preserve The Missing Key

At the first trial, the government attempted to put in evidence an Enterprise keychain similar to the one allegedly dropped by Mr. xxxxxx, explaining to the court that, although "[t]hey should keep it," the actual key in this case had been returned to the rental car company. (Trial-1(9/9/96):47-49). The court sustained the defense objection to such substitute "evidence." (Trial-1(9/9/96):49-50). The government suggested it would subpoena the allegedly seized keychain from Enterprise (Trial-1(9/9/96):50), but no such evidence was ever produced.

Although Riddle first testified that no photographs were taken (Trial-1(9/9/96):61), the government subsequently announced that Riddle had found some photographs of the keychain that he had taken and forgotten about (Trial-1(9/11/96):3). Over defense counsel's discovery objection, the court allowed Riddle to be recalled to admit those photographs. (Trial-1(9/11/96):4-6, 13-15). Riddle acknowledged on cross-examination that the key was released contrary to MPD General Orders requiring preservation of evidence. (Trial-1(9/11/96:16-18).

Disagreeing with the government's argument that it "was under no duty to preserve the key" (Trial-1(9/11/96):11-12), the court instructed the jury that "[t]he government had an obligation to preserve those keys as evidence" and that the jury could consider the government's failure to do that in its deliberations. (Trial-1(9/11/96):116).

c. Why The Jury Hung 10-1 For Acquittal

Consistent with Judge Sporkin's prediction to counsel that "this is a close case" (Trial-1(9/11/96):28), the jury deliberated for more than three days before hanging 10-1 for acquittal. In response to the jury's request that it be polled, the court conducted an off-the-record discussion with the jurors concerning "what the problem is." (Trial-1(9/17/96):5). Afterwards, when the prosecutor requested a trial date for the severed felon-in-possession count, the court and counsel discussed what they had learned:

[JUDGE SPORKIN]: Well, I must tell you that I think you are barking up the wrong tree. You saw how weak that case was. . . . I think the Government should consider this case -- they have a lot of egg on their face. The way this thing was done, they have a lot of egg on their face. I don't think any other jury is going to come up with any other verdict. It is a tough case.

[AUSA]: Frankly, I am surprised to see there is that much distrust now among jurors. It is disheartening.

[JUDGE SPORKIN]: Well, you've got the whole thing. And the other thing is it wasn't very well handled. Your guy Riddle was destroyed [concerning his initial testimony that he did not take photographs]. . . . He is not going to be a very good witness. And I think [defense counsel] understands what he can do with him the next time. I really think, you know, sometimes when the horse dies, you get off it. Ten to one is a pretty strong message. . . . I think you have got a weak case here. I think you have heard from the jurors. I have never seen them so thoughtful. They really thought this through. And you had a combination. I agree with you. I mean, you heard my question. I agree with you that this was a lack of faith in the police. It was incredible. It is a terrible problem in this city. They have no faith in the police officer. That was their explanation, that the police--

[AUSA]: Eight police officers were after one person.

[JUDGE SPORKIN]: Yes.

[AUSA]: I agree with you. The in[commoding] thing, I told him don't ever let that word pass your lips again.

[DEFENSE COUNSEL]: Too late. He is married to it.

(Trial-1(9/17/96):6-11) (emphasis added).

2. The Second Trial

For the second trial, the government opted to proceed on the § 922(g) felon-in-possession count that had been severed from the first trial. (Trial-1(9/18/96):12). But as Judge Sporkin noted when that possibility was first raised, "Well, that's a tough case. It's the same issue, really, same issue." (Trial-1(9/16/96):9). See also (Trial-1(9/5/96):10) (prosecutor noting that if § 922(g) count is severed, government will be faced with "try[ing] two cases on the same facts").

Because the parties stipulated that the gun had been manufactured outside D.C. (Trial-2:151-52) and that Mr. xxxxxx had previously been convicted of a felony (Trial-2:151), the issue once again was Mr. xxxxxx's dominion and control over the contents of the rental car, specifically whether he possessed the gun allegedly found under the driver's seat. ⁽²⁾ The prosecutor opted not to call Officer McGee, relying on Officer Riddle as her only witness. ⁽³⁾

Again, Riddle testified that he was on narcotics enforcement duty when he saw Mr. xxxxxx look up, walk across the parking lot, and drop an object from his left hand. (Trial-2:101, 106). Riddle discovered upon picking it up that it was an Enterprise keychain with a single key, located a green Mazda 626 with an Enterprise emblem and Maryland tag CWE-020, and found the handgun (with no useable fingerprints) under the seat. (Trial-2:107-12, 122). He also testified to recovering from the car the driver's license and rental agreements for that car and others in Mr. xxxxxx's name. (Trial-2:113-19).

a. The Preclusion Of The Incommoding Impeachment

On cross-examination, defense counsel was not permitted to either refute the inference that Mr. xxxxxx had been engaged in wrongdoing when Riddle first saw him or impeach Riddle with his prior inconsistent testimony at the suppression hearing and first trial concerning the alleged incommoding. First, the court (Judge Greene substituting for Judge Sporkin) sustained the government's relevance objection when defense counsel asked Riddle whether Mr. xxxxxx and the two men he was talking to had been "violating any major law." (Trial-2:127-28). Later, the court sustained the government's objection to the question whether Mr. xxxxxx had been "violating any law." (Trial-2:133). The court also refused to let defense counsel ask Riddle whether he approached because the three men were "incommoding." (Trial-2:133-36).

Defense counsel argued that he must make clear to the jury that they should not infer from the fact that Mr. xxxxxx had been rushed by several narcotics jumpouts that he had been doing anything wrong. (Trial-2:134-35). Defense counsel also explained that the incommoding question went to Riddle's credibility by showing that in his previous testimony he had given a pretextual reason for approaching the group. (Trial-2:134-35). But despite the fact that the court itself had been operating under the mistaken assumption that the officers must have seen Mr. xxxxxx do something involving drugs (Trial-2:135), the court would not let counsel dispel that inference before the jury. Indeed, Riddle's answers and the court's rulings only enhanced the impression that the three men must have been doing something to focus police attention on themselves:

Q I think I had asked you previously, you hadn't observed him doing anything wrong, correct?

[AUSA]: Objection.

THE COURT: Overruled.

A At what point, sir?

Q When you drove up.

A When we drove up into the circle? He was standing on the sidewalk with two other persons.

Q And my question to you is: He was not doing anything wrong, correct?

[AUSA]: Objection.

[DEFENSE COUNSEL]: I will move off it, Your Honor. It will be the only time I ask it.

THE COURT: I sustain the objection in line with what I said at the bench.

. . .

Q In addition to Mr. xxxxxx and the two other people that he appeared to be talking to when you first saw him, did you see any other individuals out there?

A Not that I was focusing on, no, sir.

Q . . . Could there have been other people that you didn't see?

[AUSA]: Objection, Your Honor.

THE COURT: Sustained.

Q So you just saw those three?

A Those are the ones that I was focusing on, yes, sir.

(Trial-2:137, 139).

b. The Negating Of The Missing Evidence Instruction

On cross-examination, defense counsel was permitted to bring out that the key had not been preserved as evidence, but was not permitted to ask Riddle whether the police were under a duty to preserve it. (Trial-2:122). ⁽⁴⁾ In closing argument, the prosecutor, over objection, was permitted to argue facts not in evidence concerning what had become of the alleged key:

[AUSA]: Where are the keys? Are the keys the key to the case? No. If your car gets stolen and somebody comes to me and tells me I need to prosecute the person who stole my car, and we find a guy driving your car, ladies and gentlemen, is the suggestion that I need to impound your car for a year until we get around to trying the case? No, ladies and gentlemen. You give the property back to its rightful owner.

[DEFENSE COUNSEL]: Objection, Your Honor. There is no evidence of that.

THE COURT: Overruled.

[AUSA]: You give the property back to its rightful owner. And why? Enterprise [R]ental owned that car. It went back to its owner, ladies and gentlemen.

(Trial-2:167) (emphasis added).

Over the government's objection that the absence of the keys had been sufficiently accounted for (Trial-2:187, 192-93), the court gave the Redbook missing evidence instruction:

If evidence material to a matter in this case was peculiarly within the power of one party to produce but was not produced by that party and that absence has not been sufficiently accounted for or explained, you may deem it appropriate, if you want, to infer that that evidence would have been unfavorable to the party that failed to produce it. However, you should not draw such an inference from evidence which is equally available to both parties which would have been merely cumulative or immaterial. I think there will be some talk about the keys in that regard. (Trial-2:204).

c. The Prosecutor's Improper Closing Arguments

In her closing argument, the prosecutor repeatedly highlighted Mr. xxxxxx's failure to present evidence, even while disclaiming any intent to place such a burden on him:

So, ladies and gentlemen, when . . . you take the suggestion that this had to be somebody else's gun, somebody else had to put the gun in his car, where is the evidence of that, ladies and gentlemen? It's not incumbent on the defendant to present any evidence, ladies and gentlemen. It is not. You should not infer anything from the fact that [defense counsel] didn't do that. But what you should do, ladies and gentlemen, is just use your common sense.

(Trial-2:163). In response, defense counsel argued that this improper argument was a "smokescreen" to obscure the fact that Riddle's testimony was without any corroboration, even though there were at least seven police officers at the scene. (Trial-2:168-69, 171-72, 173, 174, 176). Defense counsel argued the absence of evidence: that no one ever saw Mr. xxxxxx in the car, that there was no evidence the car had just pulled up, that anyone could have had access to the unlocked car, and that there was no corroboration for Riddle's claims that Mr. xxxxxx dropped an Enterprise key and that Riddle found a gun under the seat. (Trial-2:169, 171-72, 173, 174, 176).

In rebuttal, the prosecutor began:

[Defense counsel] wants you to believe that somebody else possessed that gun and somebody else put it in that car. . . . He says to you that you should do that based on something. Well, based on what? On supposition? On air? On what?

(Trial-2:179).

Shortly thereafter, the prosecutor argued for an adverse inference from defense counsel's failure to call the other police officers and affirmatively represented, over objection, that, if she had called them, they would have said the "same thing" Riddle had said in his testimony:

If [defense counsel] for one minute believed that . . . these officers -- Royster, Queen, Latson, McGee, Littlejohn and Jones -- what is the matter with the government, why didn't they take up three days of your time and call every one of these officers and make them say the same thing up there and make you guys stay here longer?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Overruled.

[AUSA]: Why didn't they do that? You should infer that they've got something to hide because they didn't call those people, [defense counsel] says. ⁽⁵⁾ Well, Edward xxxxxx doesn't have any obligation to call a case, but, ladies and gentlemen, use your common sense. If [defense counsel] believed that any of those officers, whose names he knew -- if [defense counsel] thought any of those officers would contradict what Investigator Riddle said, do you think you would have heard from them? You heard nothing contradicting that officer's testimony because I submit to you, ladies and gentlemen, that nobody's testimony would have. And hearing four days' worth of the same thing may have been exciting for some of you, but I doubt it.

(Trial-2:180-81) (emphasis added).

SUMMARY OF ARGUMENT

Mr. xxxxxx was denied a fair trial by a combination of erroneous court rulings and improper arguments by government counsel that deprived him of his best arguments for acquittal.

First, the court erred in not permitting defense counsel to cross-examine Officer Riddle -- the government's sole witness -- about his intention in approaching Mr. xxxxxx, specifically whether his intent had been to stop Mr. xxxxxx to warn him about "incommoding." Not only would Riddle's answer have dispelled the inference that Mr. xxxxxx must have appeared to have been engaged in a serious crime in order to have caught the attention of three cars full of narcotics jumpouts, but Riddle would have been subject to impeachment with prior inconsistent sworn testimony no matter what his answer. Exposing Riddle's incredible and ever-changing claim about the "incommoding" was critical to defense counsel's ability to effectively confront him.

Second, Mr. xxxxxx was improperly deprived of the adverse inference that legitimately arose from the government's failure to preserve or produce the rental car key that he allegedly dropped as the officers approached him. Although the court gave a missing evidence instruction, its effect was negated when the court kept the jury from learning that the government had a duty to preserve the key and the prosecutor then told the jury that the key had been returned to the rental car company -- a fact not in evidence that made it appear to the jury that the key's absence had been sufficiently accounted for.

Third, the prosecutor violated Mr. xxxxxx's Confrontation Clause rights when she vouched for Officer Riddle's testimony by telling the jury that the other six officers, if called, would have said the "same thing" he said. It is always improper for a prosecutor to insinuate that she has knowledge of additional evidence supporting conviction. It is particularly prejudicial when a prosecutor uses that technique to bolster the uncorroborated testimony of her only witness. And it was particularly inexcusable here given the prosecutor's awareness that one of the uncalled officers had contradicted Riddle at the first trial and that defense counsel had successfully relied on those inconsistencies in winning ten votes for acquittal at the first trial.

Because each of these errors deprived the defense of important opportunities to cast doubt on the testimony of the government's only witness, and given the closeness of the case as demonstrated by the outcome of the first trial, their cumulative effect was to deprive Mr. xxxxxx of a fair trial.

Failing the granting of a new trial, this Court must at a minimum remand for resentencing because the district court violated the Ex Post Facto Clause when it imposed a special assessment greater than that authorized at the time of the alleged offense conduct.

ARGUMENT

I. THE COURT ERRED IN RESTRICTING CROSS-EXAMINATION OF THE GOVERNMENT'S SOLE WITNESS CONCERNING HIS INTENT IN APPROACHING MR. xxxxxx.

A. Standard of Review.

This Court must reverse for constitutional confrontation error unless the government can demonstrate that, "assuming that the damaging potential of the cross-examination were fully realized," the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

B. The Precluded Cross-Examination Would Have Dispelled The Inference That Mr. xxxxxx Had Been Engaged In Misconduct When The Police First Saw Him And Impeached Officer Riddle No Matter Which Way He Answered.

The district court erred in not allowing defense counsel to cross-examine Riddle concerning whether Mr. xxxxxx had been violating any law when Riddle first saw him. Such questioning would have refuted the inference that the three men must have been doing something illegal in order to have attracted such intense police attention, and would have impeached Riddle's credibility no matter what his answer.

The prosecutor had established on direct examination that the police had not gone to Simple City looking for Mr. xxxxxx in particular. (Trial-2:105). The inference hung over the trial, however, that the three men must have been doing something other than simply standing on the sidewalk to have been the subject of such a massive narcotics jumpout. Indeed, in discussing whether the incommoding testimony would be allowed, Judge Greene himself assumed that the officers must have approached Mr. xxxxxx because he was engaged in a drug transaction:

[DEFENSE COUNSEL]: I don't want the jury to suspect my client was out there doing anything wrong.

[AUSA]: I think it's very clear that Mr. xxxxxx wasn't doing anything wrong when he approached him. It's abundantly clear he wasn't. He's already asked those questions. ⁽⁶⁾

[JUDGE GREENE]: That's all this stuff where the drugs come in?

[AUSA]: No. He wasn't doing anything with the drugs when the police came up. He was just standing there.

[JUDGE GREENE]: Why were they arresting him?

[DEFENSE COUNSEL]: That's a good question.

(Trial-2:135). Although Judge Greene's assumption that Mr. xxxxxx had been engaged in wrongdoing was cleared up, the jury was kept in the dark. ⁽⁷⁾

If counsel had been permitted to ask Riddle whether "the reason you exited your vehicle and approached Mr. xxxxxx in the group is because you believed that they were incommoding" (Trial-2:133), not only would an affirmative answer have dispelled any more sinister inference, but Riddle's answer would have subjected him to serious impeachment whether it was "yes" or "no." Riddle had given sworn testimony at the suppression hearing that his intent in approaching Mr. xxxxxx had not been to "enforce the incommoding regulation" or "investigate incommoding, or a conspiracy to incommode." (6/28/96:23-24). Yet at the first trial, Riddle gave sworn testimony that his "intent was to stop them and advise them that they were breaking the law [by incommoding] and that they needed to disperse and move on and refrain from doing it in the future" (Trial-1(9/9/96):66). Riddle was effectively impeached with this inconsistency at the first trial (Trial-1(9/9/96):99-101; Trial-1(9/11/96):80-81). He was vulnerable to the same impeachment at the second trial no matter which story he chose to go with. See United States v. Foster, 982 F.2d 551, 554, 556 (D.C. Cir. 1993) (reversing where court precluded cross-examination concerning prior inconsistent testimony); United States v. Stock, 948 F.2d 1299, 1300-02 (D.C. Cir. 1991) (preclusion of cross-examination concerning prior inconsistent statements was confrontation error).

Finally, if Riddle had opted to stick with his story from the first trial, that testimony would also have been impeaching because it was inherently incredible. This Court has relied on the "doctrine of inherent incredibility" to reject district court fact findings where "the person whose testimony is under scrutiny made allegations which seem highly questionable in light of common experience or knowledge, or behaved in a manner strongly at variance with the way in which we would normally expect a similarly situated person to behave." Jackson v. United States, 353 F.2d 862, 867-68 (D.C. Cir. 1965) (rejecting as inherently incredible police officer's testimony as to informant's description of suspect). So too, a jury might well reject the entire testimony of a witness who is caught making a claim contrary to common sense.

Here, Riddle's bizarre claim that he approached the three men with the intent of stopping them to tell them that they were "incommoding" (Trial-1(9/9/96):67) would have thrown suspicion over his entire story. ⁽⁸⁾ Given the fact that Riddle was on narcotic "jumpout" patrol in a high-drug area, it is simply not plausible that his actual intent was to stop the men for the purpose of warning them about blocking the sidewalk -- a crime the prosecutor had never even heard of (Trial-2:134). ⁽⁹⁾

It is, of course, perfectly legal for an officer who has a subjective intent of investigating a serious crime for which he has no objectively reasonable suspicion to use a minor violation for which he does have objectively reasonable suspicion as a pretext for his actions. Whren v. United States, 517 U.S. 806 (1996). But that is not what Riddle claimed he was doing. He claimed his actual subjective intent was to enforce the incommoding statute. Defense counsel at the first trial argued that the incommoding violation was a pretext and that Riddle's denial of that was not credible. See Trial-1(9/11/96):84, 90 (referring to that "bull story about incommoding on a sidewalk" and arguing that, in order to believe Riddle, the jury had to believe "[t]hat he was investigating incommoding. . . . You have to believe that it just wasn't a pretext to go roust three guys who were standing there"). Given the circumstances, Riddle's claim about his intent was so far-fetched that it would have severely damaged his credibility, as it apparently did in the eyes of the first jury. See Trial-1(9/17/96):11 (prosecutor discussing why 10 of the jurors did not believe the police testimony: "The in[commoding] thing, I told him don't ever let that word pass your lips again").

The Confrontation Clause guarantees a defendant the right "'to expose to the jury the facts from which jurors, as sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.'" Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). See also Davis, 415 U.S. at 316 ("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 trial court's error in precluding the incommoding impeachment requires reversal of Mr. xxxxxx's conviction because, "[a]ssuming, as [this Court] must, that the 'damaging potential of the cross-examination were fully realized,' Van Arsdall, 475 U.S. at 684, [the Court] cannot confidently say, on the record as a whole, that error in this case was harmless beyond a reasonable doubt." United States v. Anderson, 881 F.2d 1128, 1140 (D.C. Cir. 1989). The factors to consider in this analysis are:

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 cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.Van Arsdall, 475 U.S. at 684.

Here, Riddle was not only an "important" witness; he was the government's only witness. His testimony was clearly not cumulative. "The more important the witness to the government's case, the more important the defendant's right, derived from the Confrontation Clause of the Sixth Amendment, to cross-examine the witness." United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993). Here, there was nothing to corroborate Riddle's claim that Mr. xxxxxx dropped an Enterprise key -- not even the key itself. Although a gun was produced, there was not so much as a photograph to corroborate Riddle's claim that he found it in the rental car.

In analyzing the "overall strength" of the government's case, this Court has looked at the strength of the government's "residual case" -- recognizing that where the precluded cross-examination would have suggested that the witness was "fabricating parts of his story in order to ensure conviction," it is appropriate to "examine the record on the assumption that the jury might have discarded [that witness] altogether." Stock, 948 F.2d at 1303 (finding error harmless beyond a reasonable doubt only because court was confident jury would have convicted on word of second officer as corroborated by third and fourth). Here, without Riddle, the government had no case at all. Even in the first trial, where the government did have other witnesses but Riddle was impeached with his incommoding testimony, the government's "residual case" was so weak that the jury came within one vote of acquitting. For these reasons, this Court cannot say that the preclusion of all cross-examination of Riddle about whether Mr. xxxxxx had been violating any law when Riddle decided to approach and about Riddle's intent in approaching was harmless beyond a reasonable doubt.

II. THE EXCLUSION OF THE GOVERNMENT'S DUTY TO PRESERVE THE KEY AND THE PROSECUTOR'S ARGUMENT OF FACTS NOT IN EVIDENCE COMBINED TO NEGATE THE MISSING EVIDENCE INSTRUCTION.

A. Standard of Review.

Because defense counsel attempted to elicit the government's duty to preserve the key (Trial-2:122), and objected that "[t]here is no evidence of that" when the prosecutor in her closing supplied an explanation for the key's absence (Trial-2:167), these issues were preserved for full appellate review.

Just as a court's refusal to give a missing witness instruction is reviewed for abuse of discretion, United States v. Tarantino, 846 F.2d 1384, 1404 (D.C. Cir.), cert. denied, 488 U.S. 867 (1988), a court's evidentiary rulings may be an abuse of discretion when they negate the effect of such an instruction.

Improper statements by the prosecutor violate a defendant's due process rights if they cause "substantial prejudice." United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985). "In determining whether a defendant has suffered substantial prejudice, this [C]ourt looks at 'the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.'" United States v. Donato, 99 F.3d 426, 432 (D.C. Cir. 1996) (quoting Monaghan, 741 F.2d at 1443). See also United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir. 1996) (substantial prejudice inquiry looks at "'the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error'") (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)), cert. denied, 517 U.S. 1229 (1996).

B. Mr. xxxxxx Was Deprived Of The Adverse Inference Arising From The Absence Of The Key When He Was Precluded From Eliciting The Government's Duty To Preserve The Key And The Prosecutor Was Permitted To Testify To An Explanation For Its Absence.

Unlike in the first trial, when defense counsel was permitted to cross-examine Riddle about the police department General Orders requiring preservation of evidence (Trial-1(9/11/96):16-18), the defense in the second trial was precluded from asking Riddle, even generally, whether the key "should have been preserved as evidence." (Trial-2:122). ⁽¹⁰⁾ By sustaining the government's objection to this line of inquiry, the court improperly precluded Mr. xxxxxx from laying the factual foundation necessary to trigger the adverse inference which the key's absence legitimately raised. Under the standard missing evidence instruction -- to which the district court agreed Mr. xxxxxx was entitled -- an adverse inference arises only if the evidence's absence "has not been sufficiently accounted for or explained." (Trial-2:204) (quoting Redbook Instruction 2.41). In order to understand the insufficiency of any explanation for releasing the key, the jury first had to understand that the police department has a duty to preserve physical evidence.

The prejudice from this error was greatly compounded when the prosecutor was allowed, over objection, to provide just such an explanation -- answering her own question "[w]here are the keys?" by telling the jury that it is appropriate to "give the property back to its rightful owner" before trial and that, indeed, it "went back to its owner" -- even though there were no facts in evidence concerning what had become of the key. ⁽¹¹⁾

"This circuit has long made clear that the government must take care to ensure that statements made in . . . closing arguments to the jury are supported by evidence introduced at trial." United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir.), (citing Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)). Prosecutorial argument that "relie[s] on evidence not in the record [is] clearly improper." United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995). See also Donato, 99 F.3d at 432-33 (reversible error for prosecutor in summation to mischaracterize the evidence concerning what it would have cost defendant to have returned car before lease expired); United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993) (reversing where "twice during closing argument the prosecutor strayed from 'the facts in evidence'"); United States v. Teffera, 985 F.2d 1082, 1088, 1089 n.6 (D.C. Cir. 1993) (reversible error for prosecutor to repeatedly refer to alleged eye contact between defendant and co-defendant where such evidence had been given at suppression hearing but not at trial).

Here the prosecutor's misconduct in stating facts not in evidence to explain the key's absence caused Mr. xxxxxx "substantial prejudice" -- particularly when considered in light of the exclusion of evidence concerning the government's duty to preserve the key.

First, the "severity of the misconduct," Donato, 99 F.3d at 432, weighs in favor of reversal. The prosecutor's duty to refrain from stating facts not in evidence is "particularly" clear when "the evidence is inadmissible or excluded." Small, 74 F.3d at 1282 (citing Foster, 982 F.2d at 555). Here, the prosecutor's failure to elicit from Riddle the explanation about the key was not simply an oversight. For Riddle to have repeated what he had been told about the return of the key would have been inadmissible hearsay. Indeed, defense counsel, in attempting to question Riddle about the police department's duty to preserve the key, had made a point of making sure the witness did not repeat such hearsay. See Trial-2:122 ("And you now know -- without telling the jury what anyone told you, you now know that those keys have not been preserved as evidence, correct?") (emphasis added). In order to have legitimately presented to

the jury its explanation for the key's absence, the government would have had to have called someone with personal knowledge, such as the officer who released the key to Enterprise. The prosecutor's decision to just tell the jury herself -- and to repeat the explanation even after defense counsel objected that her statement was unsupported by the evidence -- was "severe" misconduct. ⁽¹²⁾

Second, as to "the measures adopted to cure the misconduct," Donato, 99 F.3d at 432, the court took none at the time of the prosecutor's improper statement even though defense counsel stated plainly that "[t]here is no evidence of that." (Trial-2:167). To the contrary, the court simply overruled counsel's objection and allowed the prosecutor to continue in the same vein. See United States v. Forlorma, 94 F.3d 91, 95 (2d Cir. 1996) (reversing despite court's sustaining of defendant's objections to unsupported argument and contemporaneous instruction that "[t]here is no such testimony"). Nor did the court give any instructions either before or after the opening statements or before closing arguments explaining how the jury was to evaluate the attorneys' remarks. Only as part of the final instructions did the court explain that argument of counsel is not evidence. ⁽¹³⁾ Under the circumstances, this boilerplate instruction was unlikely to cause the jurors -- who must have been quite curious to know what had happened to the key -- to retroactively block out the prosecutor's explanation.

Finally, "the consequences of the prosecutor's misstatement were potentially severe," Donato, 99 F.3d at 432, given the "centrality of the issue affected by the error," Small, 74 F.3d at 1280. The prosecutor's extra-record "explanation" for the key's absence gutted the missing evidence instruction because, as the prosecutor recognized, no adverse inference arises where the absence has "been sufficiently accounted for or explained." (Trial-2:204). Indeed, in opposing any missing evidence instruction, the prosecutor had argued that, because the absence of the key had been explained, there was no negligence and no justification for any adverse inference. See Trial-2:192 ("If [the government had simply lost the key], I wouldn't be arguing [against a missing evidence instruction], but here you have an explanation, and the government has explained it"). In fact, the jury heard no explanation until the prosecutor herself gave it over objection in closing argument. ⁽¹⁴⁾

The adverse inference arising from the key's absence was critical to the defense because Riddle's claim that he saw Mr. xxxxxx drop an Enterprise key, if believed, established a link between Mr. xxxxxx and the car at the relevant moment and suggested consciousness of guilt. If the jury had inferred from the key's unexplained absence that Riddle had fabricated the testimony about the key, that inference would have destroyed the government's case since no jury would convict on the word of someone who lied about such a critical matter. Even if the jury believed that Riddle had seized a key, but inferred from its absence that it had not matched the car, such an inference could well have created a reasonable doubt as to whether Mr. xxxxxx had been exercising dominion and control over the contents of the car at the relevant time. See Forlorma, 94 F.3d at 96 (reversing where prosecutor's apparently innocent misstatement concerning suits in suitcase fitting defendant went to only contested issue: defendant's knowledge of contents of bag).

For these reasons, there was no "certainty of conviction absent the improper remarks." Donato, 99 F.3d at 432. The parties considered the adverse inference from the missing key to be critical in the first trial. See Trial-1(9/11/96):91 (prosecutor's rebuttal: "[Defense counsel] spent about 30 minutes talking to you, and I think about 20 minutes of that he spent harping on keys. Keys, keys, keys, keys, keys."). The government admitted in its rebuttal argument at the first trial that "If we didn't have these photographs, then maybe [defense counsel] would have something to go on." (Trial-1(9/11/96):92). In the second trial, there was no key, no photograph of any key, and no explanation -- other than the prosecutor's improper comments -- of what had happened to the key. If Mr. xxxxxx had been able to obtain the benefit of the adverse inference to which he was entitled, the result might well have been the same or better than in the first trial.

III. THE PROSECUTOR'S IMPROPER CLOSING ARGUMENTS DEPRIVED MR. xxxxxx OF A FAIR TRIAL.

A. Standard of Review.

The standard of review for prosecutorial misconduct in closing argument is set forth in Part II(A), supra. Because the prosecutor's argument that the other six officers would have corroborated Riddle's testimony violated the Confrontation Clause, this Court must reverse unless the error was harmless beyond a reasonable doubt. United States v. Molina-Guevara, 96 F.3d 698, 703-05 (3d Cir. 1996).

B. The Prosecutor Violated The Confrontation Clause When She Vouched For Her Sole Witness's Credibility By Telling The Jury That The Other Six Officers Would Have Said The "Same Thing."

The prosecutor made an improper burden-shifting argument in her closing ("where is the evidence [that somebody else put the gun in his car]?"), even while purporting to assure the jury in the same breath that they "should not infer anything from the fact that [defense counsel] didn't [present any evidence]," but should "just use your common sense." (Trial-2:163). ⁽¹⁵⁾ Defense counsel condemned this unconstitutional tactic in his own closing argument (Trial-2:168) and argued that the government was trying to shift the burden in order to obscure the fact that its only witness's testimony was utterly uncorroborated. Although defense counsel did point out that there were at least six other officers on the scene, he was careful not to make a missing witness argument. He argued only the absence of corroboration for Riddle and never attempted to turn that non-evidence into evidence by urging the jury to infer that the other officers, if called, would have contradicted Riddle.

The prosecutor was not so careful. In her rebuttal, she not only made an affirmative missing witness argument ("If [defense counsel] . . . thought any of those officers would contradict what Investigator Riddle said, do you think you would have heard from them?") (Trial-2:181), she went further and told the jurors flat out that the reason they had not heard those officers contradict Riddle was because "nobody's testimony would have." (Trial-2:181). All of this occurred after defense counsel had objected (unsuccessfully) to her suggestion that she could have called "every one of these officers" to "say the same thing." (Trial-2:180-81). Undeterred by the objection, the prosecutor continued by making the missing witness argument, assuring the jury that "nobody's testimony would have" contradicted Riddle, and repeating the suggestion that, if she had called the other officers, it would have meant "four days' worth of the same thing." (Trial-2:181).

It was improper for the prosecutor to urge the jury to infer from defense counsel's failure to call the officers that they would not have contradicted Riddle. Such a missing witness argument is improper when the witnesses at issue are equally available to the government. Cf. United States v. Glenn, 64 F.3d 706, 709-10 (D.C. Cir. 1995) (reversing where government made missing witness argument concerning witness who was unavailable to defendant because of self-incrimination privilege). But, ultimately, the prosecutor's misconduct in arguing an adverse inference from Mr. xxxxxx's failure to call the other officers was subsumed by the prosecutor's even greater error in actually testifying as to what the other officers would have said if called.

As set forth supra at 29-30, it is always improper for a prosecutor to argue facts not in evidence. In United States v. Young, 470 U.S. 1, 18 (1985), the Supreme Court specifically condemned prosecutorial comments that "convey the impression that [there exists] evidence not presented to the jury, but known to the prosecutor, support[ing] the charges against the defendant" because such comments "jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury." As this Court has made clear, "bald statements to th[e] effect [that the prosecutor had access to incriminating information that was not before the jury] could easily be reversible error." United States v. Jordan, 810 F.2d 262, 266 (D.C. Cir.), cert. denied, 481 U.S. 1032 (1987). See United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993) (reversing where "we can detect no purpose for the [prosecutor's] comments other than an impermissible one -- to convey to the jury that the prosecution knew of crimes, other than the one charged, committed by [defendant]"); United States v. Hilliard, 569 F.2d 143, 146 (D.C. Cir. 1977) (reversing where prosecution bolstered case by repeated suggestions to jury that information existing outside record proved defendant's guilt).

Moreover, when a prosecutor insinuates personal knowledge that persons not called as witnesses would have corroborated a government witness, the prosecutor impermissibly "vouches" for that witness's credibility. See United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996) (vouching can occur when "prosecutor implicitly vouche[s] for the witness's credibility by implying that evidence not formally presented to the jury supports the witness's testimony"), cert. denied, 117 S. Ct. 965 (1997). In United States v. Murrah, 888 F.2d 24, 26 (5th Cir. 1989), the prosecutor explained his failure to produce a witness mentioned in opening statement by telling the jury in rebuttal argument, "I made the decision after hearing all of these witnesses testify that the evidence of the person who was solicited to burn the building would have been cumulative." The Fifth Circuit reversed because "[i]n essence the prosecutor assured the jury that the government indeed possessed that damning evidence but chose not to use it for purposes solely dictated by trial tactics." Id. at 27. Similarly, here, the prosecutor told the jury that she chose not to call the other witnesses because she valued the jurors' time and did not want to bore them with "four days' worth of the same thing." (Trial-2:181).

Also on point is United States v. Molina-Guevara, 96 F.3d 698, 702-03 (3d Cir. 1996), in which the Third Circuit reversed under the Confrontation Clause because of an argument very similar to that made here. After defense counsel argued that an Agent Lugo had lied about the content of the defendant's post-arrest statement, the prosecutor argued in rebuttal (96 F.3d at 702-03):

Did [defense counsel] call [the other] agent who was in the room at the time [the defendant] gave her statement?

Of course, [defense counsel] has no obligation to put on a case, to get up here and say a word. . . .

But he has the ability to call. He may call. Did he call the agent in the room with Miss Lugo [Agent Edge] and ask questions about whether this defendant talked about drugs? Asked questions about whether Miss Lugo was lying in her testimony?

Ask yourself why [defense counsel] didn't call the other agent who was in the room. If he called that other agent, he'd have to argue not only that [the cooperating defendant] lied and not only that the United States agent lied, but that another United States agent lied.The Third Circuit held that "[t]he Confrontation Clause of the Sixth Amendment is violated when a prosecutor informs the jury that there is a witness who has not testified, but who, if he had testified, would have given inculpatory evidence." Molina-Guevara, 96 F.3d at 703 (citing Hutchins v. Wainwright, 715 F.2d 512 (11th Cir. 1983), cert. denied, 465 U.S. 1071 (1984)). Here, the prosecutor suggested there were six such witnesses.

As the Molina-Guevara Court explained:

[P]rior to the rebuttal, the issue of whether the defendant had admitted knowledge of the conspiracy after her arrest could have been resolved by the jury only by assessing the relative credibility of the defendant and Agent Lugo. In her rebuttal, however, government counsel represented to the jury that Agent Edge, if called as a witness would have corroborated the testimony of Agent Lugo. 96 F.3d at 703. Similarly here, prior to rebuttal, the issue whether Mr. xxxxxx had dropped an Enterprise key and whether there had been a gun under the seat of the rental car depended on the jury's assessment of Riddle's credibility. The prosecutor's comments represented to the jury that six other officers, if called, would have supported Riddle's testimony. ⁽¹⁶⁾

The prosecutor's misconduct clearly caused Mr. xxxxxx substantial prejudice. First, with respect to the severity of the misconduct, the arguments were patently improper. Indeed, the prosecutor must have known how improper it was to tell the jury what the other officers would have said, yet she repeated the argument that the other officers would have said the "same thing" as Riddle, even after defense counsel objected. Although the misconduct would qualify as severe even if the prosecutor truly believed the other officers would have corroborated Riddle, it was particularly egregious given the prosecutor's awareness that Officer McGee in fact had contradicted Riddle on certain key points, and that defense counsel had been able to make effective use of those contradictions at the first trial.

Second, the court took no curative measures, but simply overruled counsel's objection. Again, as in Foster, "the trial court's standard reminder in charging the jury that the arguments of counsel are not evidence was an insufficient alert." 982 F.2d at 555 n.7.

Finally, "it was by no means certain that the jury would have delivered a conviction in the absence of the improper remarks." Donato, 99 F.3d at 433. Again, the case (or at least the "residual" case) was close, as was made clear by the government's ability to persuade only one juror in the first trial. And the misconduct affected a matter central to the outcome of the trial -- the credibility of the government's sole witness. Defense counsel attacked Riddle's story that Mr. xxxxxx "walks right towards the police and drops [the keys] essentially right in front of the police" as "simply preposterous." (Trial-2:173). The absence of any corroboration for Riddle's testimony was therefore critical. See Trial-2:176 (defense counsel arguing "you have to believe Riddle lock, stock and barrel, so to speak, because there is no other testimony"). See also United States v. Hardy, 37 F.3d 753, 759 (1st Cir. 1994) (where government made indirect comment on defendant's failure to testify and other improper arguments, fact that case depended on credibility of one officer weighed in favor of reversal; "Therefore, if the jury disbelieved, or had questions about, Officer Garvey's testimony, we do not believe that Hardy would have been convicted."). As in Donato, this Court should reverse because it "cannot say with confidence that the prosecutor's misstatement did not affect the integrity of the jury's verdict." 99 F.3d at 433.

If nothing else, the court's erroneous rulings and the prosecutor's improper arguments in combination require reversal. Together they deprived Mr. xxxxxx of his strongest arguments for acquittal -- that Riddle was not credible because of his incredible flip-flopping incommoding testimony, because the key that would allegedly corroborate his story had not been preserved or produced, and because his story was not corroborated by any of the other officers on the scene. These are the very points defense counsel emphasized in his (nearly winning) closing argument at the first trial:

Because when the police come in here and give you a bull story about incommoding on a sidewalk, you have a right to know. When there are keys in a case, and they don't bring them in here for you, you have a right to know. When officers are testifying left hand, right hand, I saw him from the street. He dropped them right in front of me. You have a right to know.

(Trial-1(9/11/96):90). Thus, the cumulative effect of all of the above errors requires that Mr. xxxxxx be granted a new trial. See United States v. Frederick, 78 F.3d 1370, 1378, 1381 (9th Cir. 1996) (reversing due to cumulative effect of errors, including prosecutor's argument of facts stricken from evidence to bolster main witness's credibility).

IV. THE $100 SPECIAL ASSESSMENT VIOLATED THE EX POST FACTO CLAUSE.

A. Standard of Review.

Whether application of a post-offense statutory amendment increasing the special assessment required upon a criminal conviction violates the Ex Post Facto Clause is a question of law reviewed de novo. Because defense counsel did not object to retroactive imposition of the special assessment amendment, this Court reviews for "plain error."

B. The Court Relied On A Post-Offense Statutory Amendment To Impose A Penalty Greater Than That In Effect At The Time Of The Alleged Offense.

The district court ordered Mr. xxxxxx to pay "a special assessment of $100.00" on the single count of conviction. (Appx:15). This figure was apparently based on the Mandatory Victims Restitution Act of 1996 ("MVRA"), which amended 18 U.S.C. § 3013 so as to double the special assessment for felonies from $50 to $100. Pub. L. No. 104-132, Title II, § 210, 110 Stat. 1214, 1240. Section 211 of the MVRA provided: "The amendments made by this subtitle shall, to the extent constitutionally permissible, be effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of this Act [Apr. 24, 1996]." 18 U.S.C. § 2248 (statutory notes) (emphasis added).

Imposition of the amended special assessment in this case, where the alleged offense conduct occurred on April 9, 1996 -- prior to the date of the amendment -- was plainly impermissible under the Ex Post Facto Clause because it was a retroactive enhancement of the penalty for criminal conduct. See United States v. Gaviria, 116 F.3d 1498, 1513 (D.C. Cir. 1997) ("'any statute . . . which makes more burdensome the punishment for a crime, after its commission . . . is prohibited as ex post facto'") (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)), cert. denied, 118 S. Ct. 865 (1998).

This Court recently held "the Ex Post Facto Clause prohibits the application of [the MVRA's restitution provisions]" to a defendant who was convicted after April 24, 1996, but whose offense conduct pre-dated that date. United States v. Rezaq, 134 F.3d 1121, 1141 n.13 (D.C. Cir. 1998). Just as it would violate the Ex Post Facto Clause to impose any special assessment on conduct pre-dating the original enactment of § 3013, United States v. Miller, 900 F.2d 919, 926 (6th Cir. 1990) (imposition of special assessment on mail fraud conviction would be ex post facto punishment if letter mailed before effective date of

§ 3013), it plainly violated the Ex Post Facto Clause to impose the increased special assessment on conduct pre-dating enactment of the MVRA's amendment to § 3013.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxx must be vacated and the case remanded for a new trial. At a minimum, the case must be remanded for resentencing.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Edward xxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief for Appellant Edward xxxxxx, and one copy of the accompanying Appendix, have been served by hand on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 5th day of May, 1998.

_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

1. "Appx:__" refers to pages of Appellant's Appendix. "Trial-1(date):__" refers to pages of the transcripts from the first trial, conducted September 9-17, 1996. "Trial-2:__" refers to pages of the consecutively-numbered transcript from the second trial, conducted on February 27 and 28, 1997. The relevant transcript pages from the first trial are tabbed by date in the Appendix at Tab 1. The entire transcript of the second trial is at Tab 2.

2. The second case was actually "tougher" for the government than the first case since the inference that Mr. xxxxxx knew about a gun allegedly hidden under the seat was harder to establish than the inference that he knew about drugs allegedly protruding in plain view.

3. Because the government was not introducing the drugs, jewelry, or money in the second trial (Trial-2:4-6), the drug expert and chain of custody officers were not called. Because the parties stipulated that the Enterprise computer records were business records (Trial-2:149), the Enterprise records custodian was not called.

4. The government made no attempt in the second trial to introduce the photographs Riddle claimed he took of the Enterprise keychain.

5. Defense counsel made no such missing witness argument.

6. It is true that those questions were asked, but the government's objections to those questions had been sustained. (Trial-2:127, 133).

7. In the first trial, defense counsel had been permitted to make clear that the only illegality Riddle saw was the incommoding and that McGee "didn't see [the three men] violating any law," including conducting any apparent drug transactions. (Trial-1(9/10/96):66-68).

8. Even when the men had voluntarily ceased their "incommoding," Riddle kept walking towards them, explaining that "at that point they had committed a misdemeanor violation in my presence." (Trial-1(9/9/96):65-66).

9. Judge Sporkin made clear at the suppression hearing that he viewed Riddle's incommoding testimony as patently ridiculous:

[JUDGE SPORKIN]: Wait a second. You mean if I'm standing out in front with two other judges [we] are violating the law?

[RIDDLE]: Yes, sir.

[JUDGE SPORKIN]: Oh, boy. Where did that one come from? . . . You say incommoding. That has to be in the bathroom, doesn't it?

(6/28/96:23-24).

10. Although the jury in the second trial was kept in the dark on the subject, the prosecutor and both presiding judges agreed that the key should have been preserved:

[JUDGE SPORKIN]: Why would it be given back if it's evidence in the case?

[AUSA]: That's a good question. But they do that when there are rental cars . . . seized. They call up the rental company and tell them we have your car.

[JUDGE SPORKIN]: . . . I think it's terrible policy.

[AUSA]: They should keep it. I agree with you.

(Trial-1(9/9/96):49). See also Trial-1(9/11/96):12 ("[JUDGE SPORKIN]: [T]hey could have made another key. . . . [T]he government should have had the key. There is no question about that. I hate to be critical, but it's sloppy work. It was absolutely sloppy work."); Trial-2:191 ([JUDGE GREENE]: "They are so arbitrary in the District government in so many ways. Here, they give a key away that is necessary for trial.").

11. In addition, the prosecutor's analogy to a situation in which "we find a guy driving your [stolen] car" and, rather than "impound your car for a year until we get around to trying the case," the car is returned to the owner before trial (Trial-2:167) was misleading and unfair. In the prosecutor's hypothetical situation, the car key is not evidence of guilt in the same sense the car key in this case was. Here, the case against Mr. xxxxxx was purely circumstantial and his alleged possession, and subsequent discarding, of a key that was purportedly linked by an Enterprise emblem to the car containing contraband, was critical to the government's case. The testimony about the key, if true, suggested that Mr. xxxxxx had, at that moment, been exercising dominion and control over the car and had guilty knowledge of its contents such that he attempted to distance himself from the car when the police began to approach. Cf. United States v. Garces, 133 F.3d 70, 73, 75 (D.C. Cir. 1998) (key found in pair of defendant's pants was obviously incriminating where it fit car where gun found; jury note asked "if someone has . . . sole control of the only key of the car, does that person have constructive possession of everything in the car?"). The government's hypothetical was also misleading in that, as Judge Sporkin had noted (Trial-1(9/11/96):12), the police could have made a copy of the key for Enterprise and kept the original key as evidence without interfering with Enterprise's property interests in the car.

12. The prosecutor had tried unsuccessfully to testify at the first trial to explain an alleged typographical error in a stipulation (Trial-1(9/11/96):96):

[AUSA]: [W]e typed up a stipulation. But the secretary instead of typing or typed --

[DEFENSE COUNSEL]: Objection. There is no evidence that --

[JUDGE SPORKIN]: You can't testify. Sustain the [objection].

13. The court instructed: "[C]ounsels' argument is not evidence. That is their effort in the beginning and in the end to persuade you what their side will show or has shown. Their words are just efforts of persuasion, argumentative, but they are not evidence that you can consider in reaching your verdict." (Trial-2:200).

14. This is not to suggest that the prosecutor's explanation -- if only it had come out through a witness -- would have qualified as "sufficient." To the contrary, Judge Sporkin clearly viewed the explanation as insufficient and Judge Greene thought a jury could find it insufficient. (Trial-1(9/11/96):12, 116; Trial-2:193, 204). The problem, of course, was that the prosecutor's explanation would appear sufficient to a jury unaware of the government's duty to preserve evidence. The court's error in not allowing Mr. xxxxxx to bring out this duty therefore enhanced the prejudice from the prosecutor's later reference to facts outside the record by making those facts appear dispositive of an issue on which they were not.

15. The First Circuit recently condemned the tactic of "parading an appearance of fairness by calling attention to things not to be considered by the jury" and "saying they are things the jury must think about in order to remember not to think about them." United States v. Roberts, 119 F.3d 1006, 1015-16 (1st Cir. 1997) (reversing where prosecutor suggested defendant had burden to prove innocence, while reminding jury not to shift burden to defendant, and referred to fact not in evidence, while telling jury not to convict on that basis).

16. The Molina-Guevara court specifically rejected the argument that the prosecutor had done no more than make an appropriate missing witness argument: "Because the witness here was not peculiarly available to the defense and would be expected to be biased against it, the circumstances would not support an inference that the failure of the defense to call Agent Edge was attributable to the fact that the defense was privy to his knowledge and knew that his testimony would be unfavorable." 96 F.3d at 703-04 n.1. The same is true here.