UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

              ____________________________________

No. 92-3020

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

COREY D. xxxxxxx,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 (dated January 22, 1992) having been filed on January 24, 1992, this Court has jurisdiction over this appeal under 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the trial judge erred in denying Mr. xxxxxxx's motion for judgment of acquittal where there was insufficient evidence from which a jury could find beyond a reasonable doubt that Mr. xxxxxxx intended to distribute the drugs he was seen holding.

II. Whether the trial judge erred in allowing the government's "drug expert" to give his opinion as to Mr. xxxxxxx's criminal intent.

III. Whether the judgment of conviction and sentence on Count One (possession with intent to distribute) must be vacated as a lesser included offense of Count Two (possession with intent to distribute within 1,000 feet of a school).

IV. Whether this case must be remanded for resentencing where the record does not show whether the district court recognized its authority to depart downward based upon Mr. xxxxxxx's sickle cell anemia.

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 March 5, 1991, a federal grand jury sitting in the District of Columbia returned a two-count indictment (A. 11-12) charging Mr. Corey D. xxxxxxx with possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) (Count One) and possession with intent to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 845a(a) (Count Two).

A jury trial commenced before the Honorable Louis F. Oberdorfer on May 21, 1991. On May 23, 1991, the jury returned a verdict finding appellant guilty on both counts charged. On January 17, 1992, Mr. xxxxxxx was sentenced to 78 months imprisonment and four years of supervised release on Count One and a concurrent sentence of 60 months imprisonment and eight years of supervised release on Count Two (A. 96-98). Mr. xxxxxxx filed a timely notice of appeal (A. 99).

B. Statement of Facts

1. The Government's Case.

The government presented its case through four witnesses: Vice Officers Bradley Belden and Donald Bell, DEA chemist Steven Demchuk and "drug expert" David Stroud.

Vice Officer Belden testified that at 6:50 p.m. on February 4, 1991, he was on routine plainclothes patrol in the rear passenger seat of a police cruiser (unmarked, except for a police antenna) traveling north in the 1600 block of Holbrook Street, Northeast (5/22/91 Tr. 9-10). Officer Edward Truesdale was driving; Officer Daryl Young was the front passenger; Officer Bell was seated in the rear behind the driver (Id.).

As the officers approached the intersection of Holbrook Street and Meigs Place, Officer Belden observed Mr. xxxxxxx and another man standing in front of 1623 Holbrook Street. Mr. xxxxxxx "appeared to be displaying the contents of a plastic bag to [the other] individual" (Id. at 10). When asked to explain what he meant when he said that Mr. xxxxxxx was "displaying" the bag, Officer Belden testified: "They were facing each other. He had the plastic bag between the two of them, and they were both looking into the plastic bag" (Id. at 11) (emphasis added).

Officer Belden alerted the driver to what he had seen and Officer Truesdale stopped the car at the corner. At that point, both men ran off, Mr. xxxxxxx running south on Holbrook and the other individual running across Holbrook and escaping up some steps into a playground (Id. at 11, 29). Officer Truesdale began backing the cruiser southbound on Holbrook. Mr. xxxxxxx then ran across Holbrook, heading west into the 1300 block of Childress Street. Officer Truesdale continued backing up and then turned the cruiser onto Childress. As Mr. xxxxxxx ran down Childress Street with the police cruiser behind him, Officer Belden observed him toss the plastic bag under a truck parked in front of 1367 Childress (Id. at 12, 13). Officer Truesdale then briefly stopped the car to let Officers Belden and Bell get out (Id. at 12). Officer Bell went to retrieve the plastic bag, while Officer Belden began chasing Mr. xxxxxxx, who was now running up the sidewalk (Id. at 12, 14, 20). Mr. xxxxxxx soon slowed to a walk and then stopped, at which point Officer Belden caught up to him, identified himself as a police officer, and arrested him (Id. at 12, 34). Officer Belden testified that he measured the distance from where he first saw Mr. xxxxxxx holding the plastic bag to the Webb Elementary School field at 96 feet and from where Mr. xxxxxxx tossed the bag to the school building itself at 583 feet (Id. at 15-16).

On cross-examination, Officer Belden confirmed that both Mr. xxxxxxx and the other individual were looking into the bag when he first saw them (Id. at 22). When defense counsel showed Officer Belden the PD-163 police report in which he had stated that the defendant was observed "displaying" the contents of a plastic bag to another unknown black male, Officer Belden explained that he had meant that both men were looking inside the bag (Id. at 24) (emphasis added):

Well, when I said he was displaying the contents to the other individual, I mean that was -- I tried to say that he was showing it to him. I mean they were looking at it.

Officer Belden was impeached with his testimony at the preliminary hearing at which he said only that Mr. xxxxxxx was examining the contents of the bag and made no mention of the other individual looking inside the bag (Id. at 26) (emphasis added):

Question: Now, Detective, could you tell us the circumstances under which that arrest took place for us, briefly?

Answer: We were riding in an unmarked police cruiser when we drove in front of 1623 Holbrook Street, Northeast, in the District of Columbia. At that time we observed the defendant standing in the company of another unknown male. The defendant was holding a large plastic baggie between the two of them. It looked as if he was examining the contents of the baggie.

Officer Belden did not see any money or other object exchanged between the two individuals (Id. at 24). Because Mr. xxxxxxx was looking down towards the bag, the officer could not tell if the two men were talking (Id. at 36). Officer Belden was able to observe Mr. xxxxxxx for "only a couple of seconds" before he ran off (Id. at 38).

Officer Bell testified that he did not observe Mr. xxxxxxx standing on Holbrook Street when the cruiser drove by (Id. at 58), but first observed Mr. xxxxxxx running south on Holbrook as the cruiser was backing up in the same direction (Id. at 41-42). Like Officer Belden, Officer Bell saw Mr. xxxxxxx through the front windshield as he tossed the baggie under the pickup truck (Id. at 43). After asking Officer Truesdale to stop the car, Officer Bell got out of the car and ran over to the truck, where he saw the plastic bag dangling from the top of the left rear tire (Id. at 44-45). As the officer got closer to the truck, the baggie dropped to the ground directly behind the tire (Id. at 45, 53-54). Inside the large plastic bag were three loose white rocks and seven small ziplocks, each containing a small white rock substance that field-tested positive for cocaine (Id. at 45-48).

The DEA forensic chemist testified that the total weight of the ten pieces of white substance in the baggie was 6.037 grams, or approximately one-fifth of an ounce, with a composite concentration of 66% cocaine base by weight (Id. at 72).

Officer David Stroud was qualified as an expert in the use of, and trafficking in, crack cocaine (Id. at 82-83). Officer Stroud testified that crack cocaine is generally packaged for street sale in ziplock plastic bags (Id. at 87). When the prosecutor began to ask Officer Stroud a hypothetical question, the following exchange took place (Id. at 87-88) (emphasis added):

Q. Now, Officer Stroud, I am going to ask you a hypothetical question based on your experience as an expert witness. Suppose a person --

Mr. Silver: Your Honor, I am going to object to the hypothetical without hearing a proffer.

The Court: Well, we haven't heard it yet.

By Mr. Walker:

Q. Suppose a person is on a street corner at about 6:50 p.m. here around the 1600 block of Holbrook Street, Northeast. Suppose that person is holding a plastic sandwich bag in his hand and displaying the contents of that plastic bag to another person. Suppose that the contents of that bag being displayed by that person are ten rocks of crack/cocaine, seven of which are packaged in individual, small ziplocs and three larger ones loose in the larger plastic bag. Suppose that the total weight of the actual crack/cocaine in that plastic bag being shown by the person is about 6.037 grams.

The Court: Your hypothetical has to be changed: A substance containing crack cocaine.

Mr. Walker: Yes.

By Mr. Walker:

Q. Suppose that the total weight of the substance in the bag containing crack/cocaine is approximately 6.037 grams. Now, finally, suppose that plainclothes vice officers drive into the area. The person holding the plastic bag -- as the officers pull up to that person, the person holding the plastic bag flees from the area; and, within a block or two, tosses the plastic bag containing the crack/cocaine under a car in the area.

Now, given those hypothetical facts, Officer Stroud, in your opinion, is that person's possession of the mixture or substance, 6.037 grams containing crack/cocaine, possession for personal use or is it consistent with possession with intent to distribute?

The Court: Now, before you answer that, let me hear the objection.

Mr. Silver: I will object to that, Your Honor.

The Court: All right. The objection is overruled.

The Witness: Possession with intent to distribute.

Officer Stroud testified that his opinion was based on the way the drugs were packaged in a "ten-pack," explaining that the owner of these drugs ("this dealer") is "trying to appeal to really all segments of the drug-buying community" by having some bigger rocks that would sell for $50 and some smaller rocks for customers who do not have that much money (Id. at 89). He explained that no drug user would buy ten rocks packaged in that way for personal use because of the risk that they might be counterfeit material or "burn bags" (Id.). Officer Stroud then continued explaining his answer to the "hypothetical" as follows (Id. at 89-91) (emphasis added):

Also, I would estimate the street value of these drugs at approximately $430. That would be the retail value. Three of the rocks, I would make $50 pieces, and the other seven I would make $40 pieces.

What was the other part of your hypothetical, sir?

Q. Well, let me just ask: In reaching that street value, did you base that on examining the contents of Government's Exhibit No. 2 and based on the size of those rocks?

A. Yes, I did.

Q. All right.

A. Yes.

Q. The other part of my hypothetical was: As plainclothes vice officers pull up in an unmarked car next to the person with the plastic bag, that person flees and within a couple of blocks tosses the plastic bag containing the crack/cocaine under a nearby vehicle.

A. This is a common practice of drug-dealers --

The Court: What is the question. You just told him something. What is he supposed to answer?

Mr. Walker: That was a fact that I made part of the hypothetical.

The Court: What is the question?

Mr. Walker: I asked whether and how that entered into Officer Stroud's opinion as to whether these drugs were possessed with the intent to distribute, as opposed to personal use?

Mr. Silver: Your honor, I object.

The Court: The objection is sustained.

On cross-examination, defense counsel changed the hypothetical such that both parties are looking in the bag and asked whether that scenario would be consistent with two people finding a bag and simply examining the contents. Officer Stroud rejected that suggestion, stating (Id. at 92): "That is a common ploy that we hear out there a lot every day."

At the close of the government's case, defense counsel moved for a judgment of acquittal, arguing that the government's evidence did not establish whether the individual holding the bag of drugs was the buyer or the seller (5/22/91 Tr. 95-96). The court denied the motion (Id. at 96).

2. The Defense Case.

Mr. xxxxxxx testified in his own defense that he had been talking with his friend, James Michals, on the sidewalk in front of 1623 Holbrook Street when the police car drove by and made a U-turn to head back south on Holbrook (Id. at 100-103). Earlier Mr. xxxxxxx had seen a 25- to 30-year-old man approach a 17- to 18-year-old man and ask him if he had any drugs (Id. at 103-105). Those two men were standing in the street between two parked cars when the police drove by (Id. at 105, 117-118). The younger man then ran across to the playground (Id. at 102, 104, 109-110). Mr. xxxxxxx did not see where the older man went (Id. at 104, 120). After the police made their U-turn, Mr. xxxxxxx began to run down Holbrook Street and over to Childress toward his home two blocks away (Id. at 106, 115, 125). Mr. xxxxxxx testified that he did not know why he started to run and that he just ran for the sake of running (Id. at 106, 116). After he stopped running, Mr. xxxxxxx looked back and saw a car accelerating behind him with its bright lights on (Id. at 107). The officers, including Officer Bell, got out of the car where he had stopped by an alley, grabbed him, and put him against the car (Id. at 108, 110). Mr. xxxxxxx had not realized that the car was a police car until the officers actually stopped him (Id. at 116). Officer Bell then went down the street looking under cars for several minutes (Id. at 110-111). Officer Bell returned and said, "He's a decoy," and then went back down the street for approximately five more minutes (Id. at 111). He then returned and said he "had it" but did not show Mr. xxxxxxx any bag of drugs (Id. at 112).

Mr. xxxxxxx's friend, James Michals, generally confirmed the events as described by Mr. xxxxxxx up to the point at which Mr. xxxxxxx started running up Childress Street and out of Mr. Michals's view. Mr. Michals further testified that he saw the unidentified younger man holding a bag that appeared to contain drugs (Id. at 130, 143). Mr. Michals first noticed the police car when someone said "Police" (Id. at 130-131). At that point, the younger man turned around, threw the bag, and ran up the steps to the playground (Id. at 131, 140). Mr. xxxxxxx stayed where he was for at least five more seconds (Id. at 137). When the police made their U-turn, Mr. xxxxxxx said "I'm going home," walked across Holbrook, and started running when he got to the sidewalk on Childress Street (Id. at 137-139).

Appellant's mother, Mabel xxxxxxx, testified that at the time her son was arrested, he was living with her and had an income of $463 per month in Social Security disability payments (Id. at 148-149).

The court denied defendant's renewed motion for judgment of acquittal (Id. at 151). The next day, the jury returned verdicts of guilty on both counts (5/23/91 Tr. 5-7).

3. Post-Trial Motions and Sentencing.

Mr. xxxxxxx filed a post-trial motion to reconsider his motion for judgment of acquittal, arguing that the evidence was insufficient for the jury to determine whether he was a buyer or the seller of the drugs he was holding (A. 13-18). The court denied the motion, ruling that "a jury could fairly conclude that the bag was xxxxxxx's and that he was offering the drugs in order to sell them at the time the police arrived" (A. 19-20).

At the pre-sentencing hearing on July 23, 1991, the trial court itself raised the possibility that Mr. xxxxxxx's sickle cell anemia might be grounds for a departure from the guideline range of 78 to 97 months (7/23/91 Tr. 2-3):

I hate to bring something like this up sua sponte, but I am just, as you all have heard me say, appalled at these sentences. I can't believe that the Sentencing Commission was oblivious to individual concerns, and the Lopez and [Deigert] opinions give me reason to believe that the Court[s] of Appeals are not oblivious.

On July 26, 1991, the district court issued an order stating that "[t]he Presentence Report as well as informal reports from the Probation Office and defendant's demeanor during courtroom hearings present a reasonable belief that defendant's sickle cell anemia may have affected his prior behavior" (A. 21-22). The court sua sponte ordered that Mr. xxxxxxx be physically examined by Dr. Lawrence S. Lessin, M.D., an expert in sickle cell disease, and requested Dr. Lessin to report to the court in what ways the disease may have affected Mr. xxxxxxx's mental capacity and behavior (Id.). Dr. Lessin examined Mr. xxxxxxx on July 30, 1991, and reported that Mr. xxxxxxx suffers from the HbSS form of sickle cell anemia, that he was frequently hospitalized with the disease in his childhood (which caused him to lag behind in his growth and development in school), and that he was currently experiencing 1-2 pain episodes per month, which his mother had been able to treat at home with only occasional emergency room visits since he was 13 or 14 years old (A. 23-24, 26). Dr. Lessin further reported that Mr. xxxxxxx was "significantly anemic" but that his "bones show only minimal evidence of prior sickle cell related infarction" (A. 25). Dr. Lessin reported that the average life expectancy of an individual born with sickle cell disease is 35-40 years (Id.). Mr. xxxxxxx was 20 years old at the time of the examination.

On August 9, 1991, the district court appointed an amicus curiae to prepare a memorandum addressing whether the physical or psychological effects of Mr. xxxxxxx's illness would require or justify a downward departure (A. 27). On August 30, 1991, the court, noting that "[t]here appears to be a serious possibility that imposition of a Guideline range sentence, on this first offender, would be a life sentence," ordered counsel and the amicus to brief the issue "whether the Guideline manual, or any other relevant document, contemplated or precluded departure from the Guideline's minimum on account of a diminished life expectancy, especially in a first offender" (A. 36-37). The court also requested the parties to furnish an estimate of the cost of incarcerating and treating Mr. xxxxxxx as an inmate during the course of his illness and until his anticipated early demise (A. 37).

On September 30, 1991, the amicus curiae submitted a memorandum concluding that a departure might be warranted due to Mr. xxxxxxx's age (that he is "elderly and infirm") pursuant to U.S.S.G. § 5H1.1, his physical condition pursuant to U.S.S.G. § 5H1.4, or his diminished life expectancy pursuant to U.S.S.G. § 5K2.0 (A. 37-80). The government argued in response that Mr. xxxxxxx was not eligible for a departure on the grounds of age under § 5H1.1 because he cannot be considered "elderly" (A. 89); that he was not eligible for a departure due to his physical condition because cases granting departures under § 5H1.4 "involved defendants who suffered from a constellation of physical conditions rather than from a single, albeit complex, illness like sickle cell anemia" (A. 86); and that § 5K2.0 does not authorize departure on the grounds of diminished life expectancy since the Sentencing Commission adequately considered that factor in § 5H1.1 and § 5H1.4 (A. 88-90).

At the second pre-sentencing hearing, on October 4, 1991, the district court heard argument from the parties and amicus on its authority to depart pursuant to §5H1.1, § 5H1.4, and §5K2.0 and, without making any ruling on the legal issues, decided to hear testimony from Dr. Lessin on sickle cell disease generally and Mr. xxxxxxx's particular prognosis.

Dr. Lessin testified on December 13, 1991, that the HbSS form of sickle cell anemia is "probably the most severe form of the sickling disorders" (Exp. Tr. 9) and that, among those individuals with that form of the disease, he would place Mr. xxxxxxx in the "moderate range" of severity (Id. at 12-13). Dr. Lessin testified that according to very recent unpublished data, the average life expectancy of a person born with sickle cell anemia is 48 years (Id. at 13-14).

Dr. Lessin described the most common pattern of progressive organ deterioration seen in sickle cell patients, in which the patient has recurrent pain crises, causing damage to the lungs, which puts strain on and enlarges the heart, leading to heart failure. He testified that this progression would occur over a period of 5-10 years in a patient currently having 2-5 severe pain crises a year; the fact that Mr. xxxxxxx had not required hospitalization for a pain crisis in several years would put him "on the upper side of the survival curve" (Id. at 23-26). The doctor explained that Mr. xxxxxxx could remain in his "good prognostic pattern" as long he leads a lifestyle in which he is protected from dehydration, psychological stress, exertion, exposure to infection, and temperature changes -- all of which are known to trigger the pain crises which cause the various patterns of fatal organ damage (Id. at 27-31, 33-35). He testified that the chance that Mr. xxxxxxx would suffer more frequent pain crises in prison might not be significant assuming that the environment was controlled to avoid the triggering conditions, with the exception of psychological stress, which would presumably be greater in prison (Id. at 37-38, 45). Dr. Lessin concluded that, based upon Mr. xxxxxxx's present condition -- relatively infrequent pain crises, but significant anemia and abnormal liver function -- his life expectancy would be approximately 25-28 years (Id. at 40-41). If Mr. xxxxxxx's pain crises did become more frequent in prison, the rate of organ damage would increase and his life expectancy would decrease (Id. at 39, 41).

At the conclusion of the evidentiary hearing, the court set a pre-sentencing hearing for January 10, 1992, at which the parties were to discuss "whether this medical information has any bearing on the sentencing" (Ex. Tr. 54). For reasons that are not clear from the record, this hearing never took place. The next proceeding was the sentencing on January 17, 1992, at which the court simply denied certain pending motions and then called Mr. xxxxxxx to the podium and asked defense counsel if he had anything further to say with respect to sentencing (S. Tr. 2). Defense counsel made a brief argument for departure under § 5H1.1, referenced Mr. xxxxxxx's shortened life expectancy of only approximately 45 years, and asked that the court place Mr. xxxxxxx in a facility close enough that his mother would be able to monitor his health and where he would not be vulnerable to an extreme climate (Id. at 2-4). After asking Mr. xxxxxxx how old he was, the court proceeded -- without any comment on the departure issue -- to sentence him at the bottom of the guideline range (78 months) on Count One and at the statutory minimum (60 months) on Count Two, the two sentences to run concurrently (Id. at 4-5).

SUMMARY OF ARGUMENT

Mr. xxxxxxx's convictions must be reversed because there was insufficient evidence from which a reasonable jury could conclude beyond a reasonable doubt that Mr. xxxxxxx was holding the bag of drugs with the intent to distribute them as opposed to as a potential buyer examining the merchandise. Officer Belden's testimony as to the apparent drug transaction was based on only the "couple of seconds" he saw Mr. xxxxxxx holding the bag between himself and another man. Officer Belden's testimony that when he said Mr. xxxxxxx was "displaying" the bag to the other person, he meant that both men were looking in the bag, makes the brief picture described by the officer completely ambiguous with respect to who was buying and who was selling those drugs. The Court should therefore vacate the judgment against Mr. xxxxxxx and remand to the trial court with directions to enter a judgment of conviction under the first sentence of 21 U.S.C. § 844(a) (possession of a controlled substance) and resentence Mr. xxxxxxx accordingly.

The trial court erred in allowing Officer David Stroud to testify over objection to his expert opinion as to the criminal intent of a "hypothetical" person, where it became clear during his testimony that he was in fact testifying about the actual drugs at issue in this case and that, when he opined about "that person's possession," he was in fact talking about the person charged with possessing those drugs -- Mr. xxxxxxx. That testimony violated Federal Rule of Evidence 704(b).

At a minimum, this Court must vacate the judgment on Count One (possession with intent to distribute) because it is a lesser included offense of Count Two (possession with intent to distribute within 1,000 feet of a school) for which Congress did not intend separate punishment.

Finally, this case must be remanded for resentencing because it appears that the district court declined to grant Mr. xxxxxxx a downward departure because it erroneously concluded that it had no legal authority to do so. United States v. Smith, 27 F.3d 649, 650 n.1 & 656 (D.C. Cir. 1994). The district court in fact did have authority to depart downward due to Mr. xxxxxxx's sickle cell anemia, and the diminished life expectancy associated therewith, under § 5H1.1 (age), § 5H1.4 (physical condition), and § 5K2.0 (diminished life expectancy as a mitigating factor not adequately considered by the Sentencing Commission).

ARGUMENT

I.THE TRIAL COURT ERRED IN DENYING MR. xxxxxxx'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE "INTENT TO DISTRIBUTE" ELEMENT OF THE CHARGED OFFENSES.

A.Standard Of Review.

Because defense counsel argued in his initial motion for judgment of acquittal (5/22/91 Tr. 95-96) and in his post-trial motion for reconsideration (A. 13-18) that the jury had no basis to conclude beyond a reasonable doubt that Mr. xxxxxxx was the seller as opposed to a potential buyer of the drugs at issue, the issue as to the sufficiency of the evidence of intent to distribute was preserved for full appellate review.

This Court reviews a trial court's denial of a motion for judgment of acquittal de novo. This Court does not defer to the district court, but rather must make its own independent judgment regarding the sufficiency of the evidence, viewing it in the light most favorable to the government. See Burks v. United States, 437 U.S. 1, 16-17 (1978); United States v. Johnson, 952 F.2d 1407, 1409 (D.C. Cir. 1992). Mr. xxxxxxx's conviction must be reversed if, on the evidence presented, a reasonable mind could not find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See United States v. Stephens, 23 F.3d 553, 555 (D.C. Cir.) (reversing where "no reasonable jury could find beyond a reasonable doubt that [appellant] had the requisite specific intent

to distribute the 5.9 grams of crack cocaine found in his possession"), cert. denied, 63 U.S.L.W. 3386 (1994).

B.The Evidence Was Insufficient For The Jury To Find Beyond A Reasonable Doubt That Mr. xxxxxxx Intended To Distribute The Drugs He Was Holding.

In order to prove a violation of 21 U.S.C. § 841(a)(1) (Count One), the government was required to prove beyond a reasonable doubt that Mr. xxxxxxx knowingly and intelligently possessed a controlled substance with the specific intent to distribute it. In order to prove a violation of 21 U.S.C. § 860(a) (Count Two), the government was required to prove the same thing, plus the additional element that appellant possessed the drugs within 1,000 feet of a school. Stephens, 23 F.3d at 555 (D.C. Cir. 1994), citing United States v. McDonald, 991 F.2d 866, 869 (D.C. Cir. 1993). Here the evidence was insufficient to sustain a conviction under either statute because no reasonable juror could conclude beyond a reasonable doubt that Mr. xxxxxxx had the specific intent to distribute the drugs that he was examining when the police drove by him on Holbrook Street.

Because of the manner in which the drugs were packaged, and Officer Stroud's expert testimony as to the significance of that packaging, Mr. xxxxxxx does not dispute that -- despite the small amount of drugs involved (only 0.1 gram more than in Stephens) -- there was sufficient evidence from which a jury could conclude beyond a reasonable doubt that the person who owned those drugs had the intent to distribute them. The evidence was insufficient, however, for the jury to conclude beyond a reasonable doubt that those drugs were Mr. xxxxxxx's -- i.e., that he was the seller, as opposed to a prospective customer examining the merchandise before buying.

What Officer Belden witnessed in this case was merely a few-second "snapshot" of what appeared to be part of a drug transaction. Officer Belden did not see what had been happening before he drove by or what was about to happen. He did not see who approached who. He did not see who produced the bag or where it came from. He saw no money or other object exchange hands. He could not hear what the two men were saying, or even tell if they were talking. The brief picture Officer Belden got -- and related to the jury -- was simply too ambiguous for a reasonable mind to reach a conclusion as to Mr. xxxxxxx's intent beyond a reasonable doubt. Compare United States v. Raper, 676 F.2d 841, 845 (D.C. Cir. 1982) (possession of thirteen "quarters" of heroin supported verdict of intent to distribute where police had witnessed actual drug sale by defendant immediately prior to his arrest).

The only evidence to which the government can point as supporting an inference that it was Mr. xxxxxxx who was the seller of those drugs was Officer Belden's testimony that Mr. xxxxxxx was "displaying" the drugs to the other man, a term that -- left unexplained -- would imply that Mr. xxxxxxx was holding the drugs out while the other individual was examining them. See Webster's II New Riverside University Dictionary (1988) ("display" means "to put forth for viewing"). It may be inferred that a person assuming such a posture -- the one who has no need to examine what he is holding because he already knows what it is -- is the one with the proprietary interest in the object at issue. If that was all the jurors were told -- that Mr. xxxxxxx was "displaying" the drugs to someone -- that might be sufficient for them to conclude beyond a reasonable doubt that Mr. xxxxxxx was the seller of the drugs.

But Officer Belden did not leave his use of the term "displayed" unexplained. Rather, he testified that, when he said Mr. xxxxxxx was "displaying" the contents of the bag, "I mean they were looking at it" (5/22/91 Tr. 24) (emphasis added). See also id. at 11 ("[Mr. xxxxxxx] had the plastic bag between them, and they were both looking into the plastic bag"); id. at 22 (same). In fact, Officer Belden was impeached with his prior testimony at the preliminary hearing in which he said only that "[i]t looked as if [Mr. xxxxxxx] was examining the contents of the baggie" and said nothing at all about whether the other man was looking in the bag. Thus, Officer Belden explicitly disclaimed using the term "display" in the only sense that might support the verdict. As explained by the officer himself, his testimony was simply that Mr. xxxxxxx was holding the bag and both men were examining its contents. Thus, even viewing the evidence in the light most favorable to the government, the evidence as to which party was selling and which party was buying was wholly ambiguous.

Officer Stroud's testimony with respect to Mr. xxxxxxx's intent cannot save the verdict, not only because the testimony was given in violation of Federal Rule of Evidence 704, see Argument Point II infra at 24, but also because it was based on an assumption that did not match the facts as presented to the jury. Officer Stroud testified as to the intent of someone "displaying" drugs to another person (5/22/91 Tr. 87). The jury heard no expert opinion as to the likely intent of someone holding a bag of drugs and examining its contents along with another person (with the exception of Officer Stroud's opinion -- elicited when defense counsel explicitly changed the "hypothetical" on cross-examination -- that such an altered scenario would not be consistent with the two people having just found the bag (Id. at 92)). Without such expert testimony, the jury was left to speculate as to whether Mr. xxxxxxx was a customer examining the merchandise before purchase, or was in fact playing the opposite role.

Mr. xxxxxxx was not in possession of, or in any way linked to, other drug packaging or distribution materials, a weapon, a paging device, or any other paraphernalia that could be considered evidence of intent to distribute drugs. Cf. United States v. Gibbs, 904 F.2d 52, 57 (D.C. Cir. 1990) ("Intent to distribute may be inferred from a combination of suspicious factors, such as possession of a relatively large amount of cash, weapons, more than a minimal amount of narcotics, and activity in an area of "high narcotic trafficking."). Because there was no evidence as to any money found on appellant's person, "this case is not parallel to other cases in which defendants possessed sums of money simultaneously with or after possession of cocaine so as to support an inference that the possessor was vending rather than merely caught in the act of purchasing for personal use." Stephens, 23 F.3d at 556 (emphasis added).

Contrary to the government's argument to the jury, see 5/22/91 Tr. 161-162 ("Why did Corey xxxxxxx run? He ran because he knew that he had these drugs with the intent to distribute."), the fact that Mr. xxxxxxx ran when he saw the police adds nothing to the jury's calculus. A potential drug buyer, caught in the act of holding a bag of crack cocaine, is just as likely to flee as is a drug seller. Mere possession of 5 grams of crack cocaine subjects the possessor to the same 5-year mandatory minimum sentence under 21 U.S.C. § 844(a) as would possession with intent to distribute that same amount under 21 U.S.C. § 841(b)(1)(B)(iii). Therefore, Mr. xxxxxxx's flight does not make it one bit more likely that he held those drugs with the intent to distribute them. Indeed, both parties to this apparent transaction fled when the police approached.

Likewise, the fact that Mr. xxxxxxx did not throw the drugs away until shortly before he was caught proves nothing about whether he intended to distribute them. The government argued in closing that Mr. xxxxxxx held onto the drugs as long as he did because they represented $430 worth of his "sales inventory" (5/22/91 Tr. 162). But an addict caught in the act of buying crack is just as likely as a seller to try to hold onto the bag he was seen holding as long as he thinks he can escape. The fact that Mr. xxxxxxx tried to escape with the drugs, does not make it any more likely that they were his "sales inventory."

In the recent Stephens decision, this Court vacated a judgment for possession with intent to distribute where, although it was clear from the transaction witnessed by the police that the defendant was the buyer of the 5.9 gram piece of crack cocaine found inside his shirt, the record was insufficient to determine beyond a reasonable doubt whether the defendant had bought the drug with the intent of breaking it up for retail sale or for his own personal use. 23 F.2d at 555-558. This case is the mirror image of Stephens. Here, it is clear that the drugs at issue were packaged for resale, but the record is inadequate to determine beyond a reasonable doubt whether Mr. xxxxxxx was holding them out for sale or examining them as a potential buyer. Therefore, as in Stephens, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court with directions to enter a judgment of conviction under the first sentence of § 844(a) and to resentence Mr. xxxxxxx accordingly. Stephens, 23 F.3d at 558 (citing United States v. Michael, 10 F.3d 838, 842 (D.C. Cir. 1993)).

II.THE "DRUG EXPERT'S" TESTIMONY VIOLATED RULE 704(b) OF THE FEDERAL RULES OF EVIDENCE.

A.Standard of Review.

Because Mr. xxxxxxx's trial counsel objected to Officer Stroud's testimony as to the mental state of the person described in the prosecutor's hypothetical (5/22/91 Tr. 87-88), this issue is preserved for full appellate review. This Court reviews admission of expert testimony for abuse of discretion. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993).

B.Officer Stroud's Testimony Violated Rule 704(b)'s Prohibition On Expert Opinion Testimony That The Defendant Had The Mental State Constituting An Element Of The Crime Charged.

Rule 704(b), Fed. R. Evid., explicitly forbids expert opinion testimony of the type given by the "drug expert" in this case:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

This Court has considered in several published opinions whether the admission of certain expert testimony of Officer Stroud violated this rule. United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993); United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992); United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992). See also United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988) (Officer Coates's expert testimony challenged). This Court concluded in Mitchell that Officer Stroud's testimony did violate Rule 704(b) but was not "plain error" under the facts of that case. In Williams, this Court found the prosecutor's question to Stroud "troubling" in that "it could have elicited an improper response." 980 F.2d at 1464, 1466. The Court has repeatedly warned that "Rule 704(b) commands the expert to be silent" about the "defendant's actual mental state." Dunn, 846 F.2d at 762. See also Mitchell, 996 F.2d at 422. Here, Stroud's testimony invaded the province of the jury in violation of that rule.

In Mitchell, this Court held that Rule 704(b) was violated when the trial court permitted the prosecutor to ask Stroud his opinion of the "intent of the person who was carrying those nine ziplocks" and when Stroud answered, "It was intent to distribute." In Williams, the Court held that the rule was not violated where, in response to a question about the "intentions of the person who possessed those bags," Stroud testified, "These bags were meant to be distributed at street level." What saved the testimony in Williams was the fact that Stroud's answer pointed more to the purpose for which the bags were packaged than to the mental state of the person carrying them, coupled with the fact that the trial judge immediately intervened "to underscore the witness' total lack of knowledge about the actual case before the jury." Mitchell, 996 F.2d at 422.

Although the prosecutor's question in Mitchell was "almost identical to that in Williams," Stroud's answer -- "it was intent to distribute" -- "pointed much more directly to the mental state of 'the person who was carrying those ziplocks.'" Id. Thus, the Mitchell Court found "Officer Stroud's testimony to cross the line implicit in Williams, and to violate Rule 704(b) under our current law. Id. Stroud likewise crossed the line in this case.

 Here, the prosecutor provided Officer Stroud with a hypothetical scenario and then asked him over objection: "[I]s that person's possession of the mixture or substance, 6.037 grams containing crack/cocaine, possession for personal use or is it consistent with possession with intent to distribute?" Stroud's answer: "Possession with intent to distribute." 5/22/91 Tr. 88. While the question was technically posed in the form of a hypothetical, and although Stroud had stated at the outset of his testimony that he had not been involved in the arrest of Mr. xxxxxxx (Id. at 83), it soon became clear that "that person" to which Stroud was referring was the individual charged with possessing the drugs in Government's Exhibit 2 -- Mr. xxxxxxx. Indeed, when Officer Stroud estimated a retail value as part of the explanation of his opinion on intent, he told the jury that he was basing his estimate on his personal examination of the drugs the government claimed Mr. xxxxxxx had been seen holding.

When Stroud then asked the prosecutor to repeat the rest of the hypothetical, the prosector restated his question in a way that could leave no doubt in the jury's mind that Stroud was opining on Mr. xxxxxxx's criminal intent (5/22/91 Tr. 90) (emphasis added): "I asked whether and how that entered into Officer Stroud's opinion as to whether these drugs were possessed with the intent to distribute, as opposed to personal use?" Although defense counsel's objection to that restatement of the question was sustained (Id. at 91), the damage had already been done. In this case, as in Mitchell, Stroud's testimony was not limited to the purpose for which the bags were packaged, but went explicitly to the intent of the person who possessed them -- a clear violation of

Rule 704(b). Mr. xxxxxxx must be granted a new trial from which such expert opinion testimony on his mental state is excluded.

III.THIS COURT MUST VACATE COUNT ONE AS A LESSER INCLUDED OFFENSE OF COUNT TWO.

A. Standard of Review.

Because the issue whether Count One is a lesser included offense of Count Two was not brought to the attention of the district court, this Court reviews this issue of law under the Double Jeopardy Clause for plain error. See Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.").

B. The Judgment And Sentence On Count One Violate The Double Jeopardy Clause.

Under the Double Jeopardy Clause, a defendant cannot receive multiple punishments for the same offense. Relying on Ball v. United States, 470 U.S. 856 (1985), the court in United States v. Williams, 782 F. Supp. 7, 8 (D.D.C. 1992), aff'd without opinion, 6 F.3d 829 (D.C. Cir. 1993), vacated as unconstitutional a conviction under 21 U.S.C. § 841 where the defendant had also been convicted under 21 U.S.C. § 860 based upon the same conduct: "The [Ball] Court reasoned that the Double Jeopardy Clause of the Constitution safeguards an individual, inter alia, from multiple punishments for the same offense and that a separate conviction, even apart from any consideration of concurrent sentences, has potential, adverse, collateral consequences."

The United States conceded in Williams that some of the convictions must be vacated. 782 F. Supp. at 8. The court agreed, reasoning as follows (782 F. Supp. at 9):

It is clear that the drug trafficking offenses described in 21 U.S.C. § 841 are lesser included offenses of 21 U.S.C. § 860, for the only elements of the latter crime are (1) a violation of 21 U.S.C. § 841 and (2) within 1000 feet of a school. Moreover, from the plain language of the statute and uncontradicted by the legislative history, it does not appear that Congress intended separate punishments for violations of the two statutes. The "distribution near schools" provision specifically references 21 U.S.C. § 841, and sentences for violating 21 U.S.C. § 860 are calculated only by increasing the penalties for violations of 21 U.S.C. § 841 or § 856. Under these circumstances, the Court cannot allow to stand defendants' convictions for the same conduct under both 21 U.S.C. § 841 and 21 U.S.C. § 860.

In United States v. Watson, 788 F. Supp. 22, 25 (D.D.C. 1992), the court likewise noted that, given this Court's decision in United States v. Patrick, 959 F.2d 991, 996 n.5 (D.C. Cir. 1992), that the amount of drugs involved is not an element of the offense of possession with intent to distribute under 21 U.S.C. § 841, "serious double jeopardy problems arise if the government prosecutes under both that statute and 21 U.S.C. § 860." The Watson Court reasoned that, under Patrick, "the first count becomes a lesser included offense of the second count, and the prosecution of a defendant under both statutes would be unconstitutional under Blockburger v. United States, 284 U.S. 299, 304 . . . (1932)." 788 F. Supp. at 25. See also United States v. Stephens, 23 F.3d 553, 555 (D.C. Cir.) (noting that government had dismissed § 841(a)(1) counts as lesser included offenses of § 860 counts post-verdict), cert. denied, 63 U.S.L.W. 3386 (1994); United States v. McDonald, 991 F.2d 866, 871 (D.C. Cir. 1993) (noting that district court had dismissed § 841(a)(1) count as a lesser included offense of § 860 offense after the verdict); United States v. Mitchell, 796 F. Supp. 13, 21 (D.D.C. 1992) (granting unopposed motion to vacate § 841 conviction as lesser included offense of § 860 conviction "for the reasons set forth in Williams"), aff'd without opinion, 22 F.3d 1185 (D.C. Cir.), cert. denied, 115 S. Ct. 155 (1994).

This Court should find plain error and remand this case with orders that the district court vacate the judgment and sentence on Count One. The error in imposing judgment and sentence on both Counts One and Count Two was "plain in the sense of being obvious" and "substantially undermined the fairness of the trial." United States v. Simpson, 992 F.2d 1224, 1228 (D.C. Cir.), cert. denied, 114 S. Ct. 286 (1993), citing United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989). Judge Oberdorfer clearly understood that Count Two contained only one element not present in Count One. See J.I. Tr. 16 (instruction on Count Two simply incorporated the instruction given on Count One and then added the distance requirement as a second element); see also S. Tr. 2 (rejecting defense argument that § 860 requires proof of specific intent to distribute near a school). Under Ball, the fact that vacation of Count One may ultimately have little practical effect on the length of Mr. xxxxxxx's overall sentence, does not mean that Mr. xxxxxxx is not prejudiced by the potential collateral consequences of a double conviction: "[T]he second conviction, even if it results in no

greater sentence, is an impermissible punishment." Ball, 470 U.S. at 865.

IV.THIS COURT SHOULD REMAND FOR RESENTENCING BECAUSE THE RECORD DOES NOT SHOW WHETHER THE TRIAL COURT RECOGNIZED ITS AUTHORITY TO DEPART DOWNWARD BASED UPON MR. xxxxxxx'S SICKLE CELL ANEMIA.

A.Standard of Review.

"A sentencing court's decision not to depart is reviewable if based on a misconstruction of its authority to depart." United States v. Lopez, 938 F.2d 1293, 1296 (D.C. Cir. 1991). See United States v. Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992) (appellate court should remand for resentencing where it appears that trial court misunderstood its authority to depart or believed that its authority to depart "was constrained in a way it actually was not"); United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990) (same); United States v. Baskin, 886 F.2d 383, 389 (D.C. Cir. 1989) (same), cert. denied, 494 U.S. 1089 (1990).

Whether the district court has authority to depart is a question of law that is reviewed de novo. See United States v. Smith, 27 F.3d 649, 651 (D.C. Cir. 1994), citing United States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992). When the record is unclear as to whether the district court recognized its authority to depart, this Court must remand the case with instructions that the district court clarify its reasons for refusing to depart. See Smith, 27 F.3d at 650 n.1 & 656 (remanding for resentencing where record was "ambiguous" as to whether sentencing court understood that it had authority to depart based upon differences in probable conditions of confinement resulting from defendant's status as deportable alien). See also United States v. Deigert, 916 F.2d 916, 918-919 (4th Cir. 1990) (remanding where transcript did not make clear whether sentencing court understood its discretion to depart downward in extraordinary case for "tragic personal background and family history").

B.The Trial Court Had The Authority To Grant Mr. xxxxxxx A Downward Departure Because Of His Medical Condition and Diminished Life Expectancy.

The sentencing court never explicitly stated on the record the reasons for its decision not to depart from the 78-month sentence called for by the Sentencing Guidelines. The record is clear, however, that Judge Oberdorfer wanted to find a legal ground under which he could depart downward in this case. It was the court itself that first raised the possibility that Mr. xxxxxxx's sickle cell anemia might be grounds for a departure and the court went so far as to appoint a medical expert to examine Mr. xxxxxxx and an amicus curiae to brief the departure issue -- all sua sponte. Given the manner in which the departure issue was pursued by the trial court, it appears very likely that the only reason the court declined to grant Mr. xxxxxxx a downward departure to the 60-month mandatory minimum is because it misunderstood its legal authority to do so. Because the sentencing court in fact did have the authority to depart in this case -- under § 5H1.1, § 5H1.4, and § 5K2.0 -- this Court should remand to give the district court the opportunity to clarify its reasons for declining to depart and, if the refusal was due to an erroneous understanding of its authority, to resentence Mr. xxxxxxx.

  Guideline § 5H1.1 specifically addresses age as a basis for departing from the Guidelines (emphasis added):

§ 5H1.1 Age (Policy Statement)

Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. Physical condition, which may be related to age, is addressed at § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse).

In United States v. Lopez, 938 F.2d 1293, 1294 (D.C. Cir. 1991), this Court recognized that this Guideline allows departures based on age in extraordinary circumstances. If the term "elderly" as used in § 5H1.1 means over a particular age, the district court had no authority to depart in Mr. xxxxxxx's case. It is Mr. xxxxxxx's position, however, that because he had relatively few years to live at the time his sentencing, he could qualify as "elderly" within the meaning of § 5H1.1, despite his numeric age. Because it is not clear whether the district court understood its authority in this regard, this case should be remanded for further consideration under this Guideline.

Guideline § 5H1.4 clearly provides for departures where a defendant has an extraordinary physical impairment (emphasis added):

§ 5H1.4 Physical Condition, Including Drug Dependence and Alcohol Abuse (Policy Statement)

Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.

This section "allows downward departure any time a sentencing court is presented with sufficient evidence of impairment." United States v. Ghannam, 899 F.2d 327, 329 (4th Cir. 1990) (district court granted departure to defendant suffering from cancer where expert reports suggested incarceration would be detrimental to his health); See also United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (affirming downward departure for individual who had lost both legs in military service where incarceration would jeopardize his treatment); United States v. Adonis, 744 F. Supp. 336, 343 (D.D.C. 1990) (departing where defendant had suffered severe head trauma during prison attack and had symptoms of Post-Traumatic Stress Disorder). Here, there was evidence presented of Mr. xxxxxxx's physical symptoms, the necessity of prompt intervention in his pain crises in order to minimize permanent organ damage, and the fact that the stress associated with imprisonment could shorten Mr. xxxxxxx's life by increasing the frequency of his pain crises and accelerating the progression of the disease. Because it is not clear whether the district court understood its authority to depart under § 5H1.4, a remand is appropriate under this section as well.

Finally, Guideline § 5K2.0 states in part:

§ 5K2.0 Grounds for Departure (Policy Statement)

Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

In United States v. Smith, 27 F.3d 649, 651-653 (D.C. Cir. 1994), this Court held that such "mitigating circumstances" can include offender characteristics unrelated to culpability and noted that the Sentencing Commission "has imposed very few categorical limits on what may qualify" as a mitigating circumstance. The Smith Court held that a downward departure is authorized where the defendant's status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence. The Court stated more generally that a § 5K2.0 departure is authorized when a factor unrelated to a prisoner's culpability (and not adequately considered by the Sentencing Commission) may affect the severity of the defendant's confinement if the difference in severity is substantial and the sentencing court has a high degree of confidence that it will in fact apply for a substantial portion of the defendant's sentence. Id. at 655.

Diminished life expectancy qualifies as such a mitigating circumstance not adequately taken into consideration by the Sentencing Commission, particularly where, as here, there is evidence that prison conditions could further shorten the defendant's life. Other courts have found a defendant's terminal illness to be such a mitigating circumstance. See United States v. Hernandez, 1991 U.S. Dist. LEXIS 9493 (S.D.N.Y. 1991) (defendant's AIDS diagnosis constituted such a mitigating circumstance); United States v. Velasquez, 762 F. Supp. 39, 40 (E.D.N.Y. 1991) (departure granted under § 5K2.0 where government agreed not to contest court's ruling that defendant's metasticized cancer was such a mitigating circumstance).

Here, the sentencing court itself raised the possibility that defendants who are born with a shortened life expectancy are in a category not considered by the Sentencing Commission and recognized that a sentence of a term of years in prison falls harder on such a defendant since it represents a greater proportion of his or her life (10/4/91 Tr. 13-17, 23-26). However, the government argued (Id. at 31-33; A. 88-90), and the court expressed concern (Id. at 14, 33), that because § 5H1.1 and § 5H1.4 specifically deal with age and physical condition, the court had no authority to depart under § 5K2.0 for diminished life expectancy. This conclusion is wrong as a matter of law. A sentence of a term of years falls more severely on a defendant with a diminished life expectancy in a way that is different in kind from the considerations taken into account by the Sentencing Commission under §§ 5H1.1 and 5H1.4. A person can be "elderly and infirm," or have an extraordinary physical condition, without suffering the additional burden facing Mr. xxxxxxx -- that because he has fewer total years to live, each year of his sentence represents a greater proportion of his life. Because the district court apparently accepted the government's legal arguments to the contrary, this Court should remand for reconsideration of Mr. xxxxxxx's sentence under § 5K2.0.

CONCLUSION

For the foregoing reasons, the judgment against Mr. xxxxxxx must be vacated as to both counts and the case remanded to the district court with directions to enter a judgment of conviction under the first sentence of § 844(a) and to resentence Mr. xxxxxxx accordingly. In the alternative, Mr. xxxxxxx should be granted a new trial from which expert testimony on his mental state is excluded. At a minimum, Mr. xxxxxxx's conviction on Count One must be vacated, and the case remanded to the district court for clarification and further consideration of the departure issue.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_____________________________

LISA D. BURGET

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Corey D. xxxxxxx

CERTIFICATE OF LENGTH

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

_________________________________

LISA D. BURGET

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief for Appellant Corey D. xxxxxxx 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 27th day of December, 1994.

_________________________________

LISA D. BURGET

Assistant Federal Public Defender