ORAL ARGUMENT NOT YET SCHEDULED









UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



No.

_________________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________





BRIEF FOR APPELLANT



_________________________________________________________________











A.J. KRAMER

Federal Public Defender

*SANDRA G. ROLAND

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500





*Counsel for oral argument







District Court

Cr. No. 98-399 (JR)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



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

A. Parties and Amici:

This appeal arises from a criminal prosecution of defendant-appellant Antonione xxxxxx by plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal from the judgment of the district court (the Honorable James Robertson), dated February 25, 2000, imposing sentence after conviction for possession of a weapon by a convicted felon in violation of 18 U.S.C. 922(g).

In this appeal, appellant seeks review of the district court's error in permitting the government's witness to bolster the credibility of appellant's sole accuser, and permitting the prosecutor and her witnesses needlessly to portray the defendant as a person involved in serious and dangerous crimes.

C. Related Cases:

This case has not previously been before this Court.

TABLE OF CONTENTS





TABLE OF AUTHORITIES ii



STATUTES AND RULES 1



JURISDICTION 1



ISSUE PRESENTED FOR REVIEW 1



STATEMENT OF THE CASE 2



Disposition in the Court Below 2



SUMMARY OF ARGUMENT 6



ARGUMENT 7



INADMISSIBLE TESTIMONY BOLSTERING THE POLICE

INFORMANT'S CREDIBILITY, ESPECIALLY COMBINED

WITH IMPROPER TESTIMONY LINKING MR. xxxxxx TO

CRIME, INVADED THE PROVINCE OF THE JURY,

PREJUDICED THE JURY AGAINST MR. xxxxxx, AND

DENIED HIM DUE PROCESS 7





B. Agent Haera's Testimony Bolstering The Credibility Of The Government's Key Witness, In Combination With The Portrayal Of Appellant As A Criminal Who Was Previously Known To Law Enforcement Was Improper And Prejudicial 7



CONCLUSION 16



CERTIFICATE OF LENGTH 17



CERTIFICATE OF SERVICE 17



ADDENDUM

TABLE OF AUTHORITIES



CASES



*Cooper v. Sowders,

837 F.2d 284 (6th Cir. 1988) 9



Jackson v. United States,

329 F.2d 893 (D.C. Cir. 1964) 16



*Maurer v. Department of Corrections,

32 F.3d 1286 (8th Cir. 1994) 9



*United States v. Azure,

801 F.2d 336 (8th Cir. 1986) 10



United States v. Beedle,

463 F.2d 721 (2d Cir. 1972) 15



United States v. Cowden,

545 F.2d 257 (1st Cir. 1976) 15



United States v. Grayson,

166 F.2d 863 (2d Cir. 1948) 15



United States v. Mitchell,

49 F.3d 769 (D.C. Cir. 1995) 13



United States v. Ramsey,

165 F.3d 980 (D.C. Cir.),

cert. denied, 120 S. Ct. 223 (1999) 7



*United States v. Sanchez-Lima,

161 F.3d 545 (9th Cir. 1998) 9



*United States v. Taylor,

900 F.2d 779 (4th Cir. 1990) 9, 11







STATUTES AND RULES



18 U.S.C. 922(g)(1) 2



Fed.R.Evid. 401 9, 12



Fed.R.Evid. 403 12, 16



Fed.R.Evid. 608(b) 9



D.C. Criminal Jury Instruction 2.24, Informer's Testimony 11

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________





No. 00-3026



_________________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



ANTONIONE xxxxxx, Defendant-Appellant.



_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________





BRIEF FOR APPELLANT

ANTONIONE xxxxxx

_________________________________________________________________



STATUTES AND RULES



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

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231. A timely notice of appeal having been filed on March 3, 2000, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUE PRESENTED FOR REVIEW

Whether the district court erred when it permitted a government agent to bolster the informant's credibility by testifying that the informant's information had been trustworthy and truthful in other cases, and whether such bolstering was prejudicial, particularly in light of the witnesses' negative portrayal of appellant as a known criminal involved in serious and dangerous crime who found it necessary to conceal his identity.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and

Disposition in the Court Below

On November 17, 1998, a grand jury sitting in the District of Columbia returned a two-count indictment charging Antonione xxxxxx and Daniel Hamilton with transferring and possessing a semi-automatic assault weapon, in violation of 18 U.S.C. 922(v)(1) (Count One), and with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count Two) (A. at 10). (1) Upon a motion by the government, the district court dismissed Count One prior to trial (A. at 3). Upon a motion by the government, the district court dismissed the charges against Daniel Hamilton (A. at 5).

The Honorable James Robertson presided over a jury trial that began on November 1, 1999. The jury returned a verdict of guilty on November 3, 1999 (A. at 12).

Mr. xxxxxx was sentenced on February 25, 2000, to 51 months' imprisonment, a three-year term of supervised release and a $100 special assessment (A. at 13). Mr. xxxxxx filed a timely notice of appeal on March 3, 2000 (A. at 19).

B. Statement of Facts

The case against appellant xxxxxx was made by Kevin Perry, who was a confidential informant cooperating with law enforcement in exchange for leniency in his own criminal cases. In 1996, Perry had been arrested and charged in Superior Court with distributing crack cocaine (Tr. 11/2/99 at 63, 103). Later that year, he was again arrested and charged in Superior Court, this time for kidnapping (Tr. 11/2/99 at 63, 103). While those charges were pending, Perry was arrested and charged in the United States District Court with distributing crack cocaine (Tr. 11/2/99 at 25, 108).

If convicted of the federal charge alone, Perry faced a prison sentence of 10 years to life (Tr. 11/2/99 at 60). He sought to save himself from such a lengthy term of years (and from any penalties in his two Superior Court cases) by helping law enforcement to make criminal cases against others (Tr. 11/2/99 at 25). In exchange for Mr. Perry's cooperation and guilty plea in the district court, the government agreed to move to dismiss Perry's two cases pending in Superior Court and to file a motion pursuant to U.S.S.G. 5K1.1 in his district court case (Tr. 11/2/99 at 43, 59). (2) Perry believed that he would "benefit" if people were arrested based on his information or assistance (Tr. 11/2/99 at 100).

Although the case against appellant was Perry's first "deal" with law enforcement, he was involved in other "deals" prior to appellant's trial. The case agent from the Bureau of Alcohol, Tobacco and Firearms, Frank Haera, was ask to vouch for the value of Perry's word in other criminal cases. Although most of the objections to this line of questioning were sustained, Haera was able to testify that, based on Perry's word, search warrants were executed, contraband was discovered, and people were arrested (Tr. 11/2/99 at 53-55).

Perry's first "deal" for the police began when, according to him, appellant xxxxxx fortuitously walked up to him on the street and asked if he was interested in buying a rifle (Tr. 11/2/99 at 67, 75, 82). (3) They agreed on a price of $900 (Tr. 11/2/99 at 67). On July 9, 1997, Perry contacted appellant and arranged to meet at Perry's apartment (Tr. 11/2/99 at 68). Appellant arrived at Perry's apartment just as an undercover officer left (Tr. 11/2/99 at 114). The officer identified appellant at trial (Tr. 11/2/99 at 114). Perry testified that he and appellant discussed how to get the rifle to Perry's apartment without being detected (Tr. 11/2/99 at 70). Appellant twice left and returned (Tr. 11/2/99 at 71-72). Finally, appellant returned with Daniel Hamilton ("Cat Face") (Tr. 11/2/99 at 72). Cat Face carried a box containing a loaded rifle and extra bullets (Tr. 11/2/99 at 39, 50, 72, 73). Perry gave appellant $900 and, according to Perry, appellant returned $40 to Perry "for doing the deal." (Tr. 11/2/99 at 74, 90). After appellant and Cat Face left the apartment, Perry reported to officers that he had the rifle (Tr. 11/2/99 at 74).

The rifle was a Norinko SKS that was a copy of a World War II Russian service rifle, and manufactured in China (Tr. 11/2/99 at 125, 127). Many of these rifles were illegally exported to the United States for use as sports firearms (Tr. 11/2/99 at 125). (4) The rifle was not fingerprinted (Tr. 11/2/99 at 51).

The July 9th events in Perry's apartment were captured on video. Perry, who was wheelchair bound, had been provided with a wheelchair that had been outfitted with hidden audio and video equipment in each arm (11/2/99 at 28, 69, 113). The video tape was played at trial (Tr. 11/2/99 at 77-92).

The parties stipulated that appellant had previously been convicted of an offense punishable by a term of imprisonment exceeding one year (Tr. 11/2/99 at 134).

SUMMARY OF ARGUMENT

The prosecutor's line of questions to the case agent that were designed to demonstrate that the police informant had proved to be trustworthy and truthful in other cases impermissibly bolstered the informant's credibility. The agent's testimony was not relevant any element of the charge here, was inadmissible extrinsic evidence of specific instances of conduct admitted for the purpose of supporting the informant's credibility, and invaded the province of the jury to determine witness credibility.

The error was not harmless. The informant was an essential witness without whom the government could not have obtained a conviction in this case. Although essential, the informant's testimony was suspect by virtue of the fact that he had much to gain from appellant's conviction. The agent's profession assessment that the informant was trustworthy and truthful improperly bolstered the informant's damaged credibility.

The bolstering testimony was especially prejudicial because it contrasted with the witnesses' portrayal of appellant as a person who was previously known to law enforcement and who was involved in serious and dangerous crimes. Furthermore, repeated testimony that appellant used aliases added to the perception that appellant was a dangerous criminal who found it necessary to conceal his identity. None of this testimony had probative value and, even if minimally relevant, was highly prejudicial.

ARGUMENT

INADMISSIBLE TESTIMONY BOLSTERING THE POLICE INFORMANT'S CREDIBILITY, ESPECIALLY COMBINED WITH IMPROPER TESTIMONY LINKING MR. xxxxxx TO CRIME, INVADED THE PROVINCE OF THE JURY, PREJUDICED THE JURY AGAINST MR. xxxxxx, AND DENIED HIM DUE PROCESS

A. Standard of Review

The district court's admission of evidence, over objection, is reviewed for an abuse of discretion. United States v. Ramsey, 165 F.3d 980, 984 n.3 (D.C. Cir.), cert. denied, 120 S. Ct. 223 (1999).

B. Agent Haera's Testimony Bolstering The Credibility Of The Government's Key Witness, In Combination With The Portrayal Of Appellant As A Criminal Who Was Previously Known To Law Enforcement Was Improper And Prejudicial

Despite repeated objections, the prosecutor persisted in eliciting testimony from Bureau of Alcohol, Tobacco and Firearms Agent Haera that Kevin Perry had been trustworthy and truthful in other cases and circumstances (Tr. 11/2/99 at 53-55):

Q. Is it true that Perry had given you information that has led to the capture of other criminals?



DEFENSE: Objection, Your Honor.



COURT: Sustained.



Q. As a result of Mr. Perry's cooperation, have you been able to arrest other criminals?



DEFENSE: Objection.



COURT: Sustained. It's leading.



Q. What happened -- well, let me rephrase this. With the information that Mr. Perry gave you, what did you do?



DEFENSE: Objection to relevance.



COURT: I'll overrule that objection.



WITNESS: Repeat your question.



Q. Sure. Mr. Perry gave you certain information about individuals in the Park Morton complex; is that right?



A. That's true.



Q. And what did you do with that information?



A. The information that Mr. Perry gave me personally, I did a lot of different things with it. Some of the information was used to obtain search warrants. Some of the information was used to begin investigations on other people in that area that were committing crimes such as drug dealing and firearms possession.



And some of the information was used to inform the attorneys of how he could help us in these investigations by way of testimony in the grand jury and at trials.



Q. In any of those search warrants that were based on information given you by Perry, did you uncover contraband?



A. Yes.



Q. And any of those investigations of other individuals that you started as a result of Mr. Perry's information, did any of those investigations lead to arrests?



A. Yes.



Q. And were the arrests of those individuals corroborated by any tangible evidence?



DEFENSE: Objection, Your Honor.



COURT: Sustained.



Q. Agent Haera, based on what you know about the information Mr. Perry gave you, and the search warrants you've gotten and the arrests, do you believe that the information Mr. Perry gave you is truthful?



DEFENSE: Objection, Your Honor.



COURT: Sustained.



PROSECUTOR: That's all I have, Your Honor.



Haera's testimony that Kevin Perry's information led to the discovery of contraband and to arrests in other instances improperly bolstered Perry's credibility, was not relevant to any element of the charge here, was inadmissible extrinsic evidence of specific instances of conduct admitted for the purpose of supporting Perry's credibility, and invaded the province of the jury to determine witness credibility. See Fed.R.Evid. 401, 608(b). (5) See also United States v. Sanchez-Lima, 161 F.3d 545, 548-49 (9th Cir. 1998) (agent's testimony that he believed another agent's story to be truthful improperly bolstered witness's credibility; conviction reversed); Maurer v. Department of Corrections, 32 F.3d 1286, 1289 (8th Cir. 1994) (witness' testimony that victim seemed sincere when she reported crime improper vouching; conviction reversed); United States v. Taylor, 900 F.2d 779, 781-82 (4th Cir. 1990) (testimony that convictions had been obtained based on police informant's information improperly bolstered informant's credibility; conviction reversed); Cooper v. Sowders, 837 F.2d 284, 288 (6th Cir. 1988) (testimony that arrests were made based on police informant's information improperly bolstered informant's credibility; conviction reversed); United States v. Azure, 801 F.2d 336, 339-41 (8th Cir. 1986) (expert's testimony that victim's story was truthful improperly bolstered victim's credibility; conviction reversed).

In this case, the prosecutor's relentless pursuit of this line of questioning paid off. By the time Agent Haera finally was able to testify that Perry's information had led to discovery of contraband and to arrests, the jury clearly understood what the prosecutor sought with her questions. Having successfully driven her point home, the prosecutor hardly needed an answer to her final question: "[D]o you believe that the information Mr. Perry gave you is truthful?" By then, the jury was fully aware that in Agent Haera's professional opinion, Kevin Perry was a trustworthy and truthful person who had provided accurate information in other cases and upon whose word the jury could safely depend.

The effect of Agent Haera's vouching was profound. Perry was the most important witness against appellant; his testimony was essential to the government's case. Perry was the only witness who claimed that appellant offered to sell him a gun. Perry was the only witness who was present when Daniel Hamilton, in appellant's presence, delivered a box to Perry. He was the only witness who looked inside the box when it was delivered and claimed that it contained a rifle. If the jury had distrusted Perry's testimony, it would have been required to acquit. Critically important though it might have been, Perry's testimony also was suspect by virtue of the fact that he had much to gain from appellant's conviction. Indeed, the judge delivered D.C. Criminal Jury Instruction No. 2.24, Informer's Testimony (Tr. 11/2/99 at 184):

[w]hen an informer testifies, his testimony should be received with suspicion and examined with greater caution than the testimony of an ordinary witness. You should consider whether what this person receives from the government has motivated him to testify falsely against the defendant in order to further his own interests.



Having learned that law enforcement had found Perry to be trustworthy and truthful in other cases, the jurors could be relieved of their natural suspicion of Perry's testimony. See Taylor, 900 F.2d at 782-83 (where informer was only person actually present at tape-recorded buy, informer was "key witness" and "improper bolstering of his credibility could only have been quite prejudicial" to defendant").

Bolstering Perry's credibility in this way was especially prejudicial because it contrasted so sharply with the prosecutor's negative portrayal of appellant. The prosecutor elicited testimony suggesting that appellant was known to law enforcement as a person involved in dangerous and violent crime. Agent Haera testified that he was posted to the High Intensity Drug Trafficking Area Task Force ("HIDTA") (Tr. 11/2/99 at 21), working in an investigation in the Park Morton area in northwest Washington, D.C. (Tr. 22/1/99 at 21). The prosecutor asked Haera to elaborate on the Park Morton investigation (Tr. 11/2/99 at 21):

Q. Let me ask you a little bit about this investigation. You referred to the Park Morton investigation. What is that?

A. We were investigating the overall problems in the Park Morton area. There was a lot of drug trafficking. There was a lot of violence. There was a lot of unsolved murders up in that area. Our task force concentrated on that area and the people in it that were responsible for doing those - committing those crimes.

Agent Haera then signaled that appellant was one of those people committing the drug, violent and murderous crimes in the Park Morton neighborhood by informing the jury, "we set up a transaction in order to purchase a - a rifle for a sum of money, which I believe was $900, from a person that we knew in the investigation as York." (Tr. 11/2/99 at 27). Agent Haera again informed the jury that he had had prior encounters with appellant: "That day we had made arrangements for Mr. Perry to purchase a rifle from a man named York, who I knew as Antonione xxxxxx . . . ." (Tr. 11/2/99 at 29). The prejudice from this "other crimes" testimony far outweighed any probative value and caused irreparable harm to appellant's defense, particularly his defense that Daniel Hamilton ("Cat Face") possessed the rifle.

First, the testimony had essentially no probative value. It should be been excluded, therefore, under Rule 401 of the Federal Rules of Evidence. The testimony was ostensibly to establish that "York" and "xxxxxx" were the same person. But it was completely unnecessary for that purpose. The defense had never claimed that appellant did not use the nickname "York." Nor did the government need evidence that appellant was known to law enforcement. That fact was probative of no element of the charge.

To the extent the prior investigation testimony had any probative value, it was substantially outweighed by the tremendous prejudice inherent in it and should have been excluded under Rule 403 of the Federal Rules of Evidence. (6) "To carry out the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general." United States v. Mitchell, 49 F.3d 769, 776 (D.C. Cir. 1995). The knowledge that appellant was the subject of an investigation - including narcotic trafficking, violent crimes, and even "unsolved murders" - had little probative value but irreparably damaged appellant in the eyes of the jury. (7) The jurors' willingness to entertain a reasonable doubt as to Kevin Perry's identification of appellant (and not Daniel Hamilton) as the seller surely disappeared when they learned that this was not the first time Mr. xxxxxx attracted police attention. The evidence elicited from Agent Haera served no purpose but to smear appellant with an image of drugs, violence and murder. Its admission contributed to the prejudice resulting from Haera's bolstering of Perry's testimony, which requires a new trial.

Finally, the repeated references to appellant's "aliases" added to the perception that appellant was steeped in the ways of crime and found it necessary to use false names. The prosecutor primed the jury during her opening statement (Tr. 11/2/99 at 7):

You're going to hear that in July of 1997, Antonione xxxxxx, who by the way, goes by other names -- he's known as York, or known as Abdul Mines -- he was living in the Park Morton public housing complex . . . .



The prosecutor asked virtually every witness to repeat appellant's aliases. Agent Haera testified (Tr. 11/2/99 at 27-28):

Q. And when you refer to York, do you know that person to go by another name?



A. Yes. I do. I know him to go by Antonione xxxxxx, and I also know him to go by Abdul Mines.



Kevin Perry testified (Tr. 11/2/99 at 66):



Q. Okay. Mr. Perry, do you know a man named Antonione xxxxxx?



A. Yes.



Q. Do you know him to go by any other names?



A. Yes. I know him as York.



Even the officer who delivered the special wheelchair to Perry



testified about the aliases (Tr. 11/2/99 at 114):



Q. Okay. Once you were in the apartment, and you exchanged wheelchairs, what else did you do?



A. After conducting a heading on - for the video camera on the wheelchair, I at that time took his wheelchair and was leaving out of the apartment. Opening the door, that's when I noticed the target at the time who was identified by the last name of xxxxxx, a/k/a York.



Q. When you say a/k/a, do you mean also known as?



A. Also known as York, yes, ma'am.



In closing argument the prosecutor referred to the aliases once again (Tr. 11/2/99 at 150-151):

 

The only evidence that you've heard is that the defendant, Antonoine xxxxxx, York, Abdul Mines, sold this gun to Kevin Perry for $900."

Appellant's aliases were not relevant to any matter to be legitimately proved at trial. That evidence too should be been excluded under Rule 401 of the Federal Rules of Evidence. The repeated use of the aliases served to prejudice appellant by casting him as a criminal who found it "necessary to conceal his identity." United States v. Grayson, 166 F.2d 863, 867 (2d Cir. 1948) ("[A]n alias - even a single alias - can serve no purpose but to arouse suspicion that the accused is a person who has found it useful or necessary to conceal his identity."). See also United States v. Cowden, 545 F.2d 257, 267-68 (1st Cir. 1976) ("It is best to avoid the use of an alias particularly where, as here, there seems to be no relevant purpose for including it in the indictment."); United States v. Beedle, 463 F.2d 721, 724 (3d Cir. 1972) ("The practice of allowing aliases to exist has been condemned where as they serve no useful purpose either to identify the accused or to protect him from double jeopardy.") (citations omitted). Even if Kevin Perry's testimony that he knew appellant as "York" were permissible, its marginal relevance was outweighed by the prejudicial impact of the repeated testimony about the aliases from each witness and the repeated commentary by the prosecutor. The testimony should have been excluded under Rule 403 of the Federal Rules of Evidence.

Even if none of the improper testimony and argument, standing alone, can be regarded as prejudicial, the cumulative impact of the could have unfairly tipped the jury toward conviction. See Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964). A new trial is required.

CONCLUSION

Because the district court erroneously admitted improper evidence that prejudiced appellant, his conviction must be reversed and remanded for a new trial.

Respectfully submitted,



A.J. Kramer

Federal Public Defender



_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500





CERTIFICATE OF LENGTH



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



_________________________________

Sandra G. Roland







CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 10th day of July, 2000.

___________________________________

Sandra G. Roland

1. "A." citations refer to pages of the Appendix filed with this brief. "Tr." refers to pages of the transcript of the trial held on November 1, 2, and 3, 1999, and pages of the sentencing hearing held on February 25, 2000.

2. In addition, Perry's law enforcement handlers supplemented his social security disability check by giving him thousands of dollars for food, clothing, rent, telephone, utilities, a pager, transportation, his children's expenses, and to move to a new residence (Tr. 11/2/99 at 26, 46-47, 65-66, 104-1079). They also paid him a cash award for his information (Tr. 11/2/99 at 26, 47).

3. Perry testified that he had known appellant for ten or more years (Tr. 11/2/99 at 66).

4. At sentencing, the judge said of the rifle, "[I]t is not only not an assault weapon, it looks like something that came from the Chinese Army out of the Korean war. It is - it is insignificant. It is a long gun, and it is a high-powered gun; but . . . what I got from this trial was that this gun transaction was not one of a number of serious gun sales by somebody who is deep into the gun business. It was an amateurish transaction that my guess . . . was driven by a drug problem." (Tr. 2/25/00 at 19).

5. Fed.R.Evid. 401 states:



"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.



Fed.R.Evid. 608(b) states:



Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may not be proved by extrinsic evidence.

6. Rule 403 of the Federal Rules of Evidence states:



Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or delay, waste of time, or needless presentation of cumulative evidence.

7. The prosecutor's closing argument also implied that appellant was involved in crime at a high, or more dangerous, level: "You heard Agent Haera talk about how they use cooperators. How else would the police be able to catch bigger fish in the criminal scheme of things?" (Tr. 11/2/99 at 153). The implication that appellant was a "bigger fish" than a man facing charges for kidnapping and for distributing crack cocaine on two occasions certainly would have prejudiced the jury against appellant.