ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No.

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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REPLY BRIEF FOR APPELLANT

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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)

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

SUMMARY OF ARGUMENT 1

ARGUMENT 3

TESTIMONY THAT THE INFORMANT HAD BEEN TRUTHFUL IN OTHER CIRCUMSTANCES WAS NOT RELEVANT TO HIS POTENTIAL BIAS IN THIS CASE BUT IMPROPERLY BOLSTERED HIS CREDIBILITY AND VIOLATED RULE 608(b) OF THE FEDERAL RULES OF EVIDENCE 3

A. Standard of Review 3

B. Agent Haera's Testimony That The Informant Had

Been Truthful In The Past Should Have Been

Excluded 5

CONCLUSION 13

CERTIFICATE OF SERVICE 13

TABLE OF AUTHORITIES

CASES

Cooper v. Sowders, 837 F.2d 284

(6th Cir. 1988) 4

United States v. Abel, 469 U.S. 45 (1984) 12

United States v. Fusco, 748 F.2d 996

(5th Cir. 1984) 9

United States v. Lindemann, 85 F.3d 1232

(7th Cir. 1996) 4, 5, 8

United States v. Lochmondy, 890 F.2d 817

(6th Cir. 1989) 9

United States v. Martinez, 775 F.2d 31

(2d Cir. 1985) 4, 9

United States v. Olano, 507 U.S. 705 (1993) 4, 12

United States v. Penny, 60 F.3d 1257

(7th Cir. 1995) 10

United States v. Sanchez, 790 F.2d 1561

(11th Cir. 1986) 9

United States v. Spriggs, 996 F.2d 320

(D.C. Cir. 1993) 5

RULES

Fed.R.Evid. 401 4

Fed.R.Evid. 608(b) 4, 12

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No.

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

ANTONIONE xxxxxxx, Defendant-Appellant.

_____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________

REPLY BRIEF FOR APPELLANT

ANTONIONE xxxxxxx

_____________________________________________

PRELIMINARY STATEMENT

As to matters not discussed herein, appellant relies on his opening brief.

SUMMARY OF ARGUMENT

Appellant agrees that a witness whose credibility has been attacked as biased may be rehabilitated by evidence that rebuts the bias attack. Appellant also agrees that an informant whose credibility has been attacked as biased based on his self-interest in obtaining a shorter sentence can be rehabilitated with evidence drawn from the plea agreement setting out the informant's obligation to testify truthfully. In fact, that is exactly what happened here. After counsel suggested during cross-examination of Agent Haera that Perry had a potential bias based on his self-interest, the prosecutor explored at length the plea agreement and its truth-telling requirements with the informant.

The government's claim that Haera's testimony about Perry's past truthfulness was proper because the "results of Perry's cooperation in other cases" rebutted the "suggest[ion] that Perry was biased out of self-interest in getting a shorter sentence" must fail. The fact that Perry had been truthful in the past did not make it less probable that his testimony here was tainted by self-interest. His previous truthfulness was not relevant to any matter, except to bolster his credibility before the jury.

Nor does the record support the government's claim that appellant "practically invited" Haera's improper testimony by "suggesting that Perry would get 'credit' for merely 'accusing' other people of crimes, whether the accusations were founded or not." First, Perry would benefit under the terms of his plea agreement for lodging "founded" complaints. Second, defense counsel's examination did not suggest that the plea agreement allowed Perry to benefit from "unfounded" accusations. Even if such a suggestion had been made, it would have been successfully dispelled by Agent Haera's testimony disputing counsel's use of the word "accuse," and would not have been rebutted by evidence of Perry's past truthfulness.

The government's claim that Haera's irrelevant, bolstering testimony was not "unduly prejudicial" because Perry "did not testify in a vacuum" must fail. Perry was the only witness who identified appellant as the person who sold the gun, and the "corroborating" evidence cited by the government is not inconsistent with appellant's contention that a reasonable doubt existed whether he was the person who sold the gun.

In addition, the testimony plainly should have been excluded under Fed.R.Evid. 608(b). Although Rule 608(b) does not require exclusion of extrinsic evidence of bias (or lack of bias), Haera's testimony about Perry's past truthfulness was not evidence of lack of bias. Rather, it was evidence of past conduct offered to prove Perry's "character for truthfulness," which is evidence prohibited by Rule 608(b).ARGUMENT

A. Standard of Review.

The government's claim that appellant did not preserve his claim that Haera's testimony was not relevant to any issue to be proved, and had the effect of bolstering the informant's credibility, is wrong (Government's Brief at 11-12). Appellant's counsel was on his feet during most of the disputed line of questioning. He lodged five objections (four of which were sustained) to the prosecutor's nine questions on this subject (Tr. 11/2/99 at 53-55). By his third objection, counsel specifically informed the judge that he objected on "relevance" grounds (Tr. 11/2/99 at 53).

Appellant's claim that the objectionable testimony was not relevant to any legitimate issue to be proved and had the effect of bolstering the informant's credibility are two sides of the same coin. Cases cited by both appellant and the government ask whether the alleged "bolstering" testimony was "relevant." See e.g., United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996) (the "bolstering" evidence "was relevant . . . because it made less probable the assertion that [the informant] was lying in Lindemann's case out of self-interest"); Cooper v. Sowders, 837 F.2d 284, 288 (6th Cir. 1988) (informant's testimony about his reliability in other cases "bolster[ed] his credibility" and was inadmissible because an "informant's testimony in other cases is not relevant to his testimony in this case."); United States v. Martinez, 775 F.2d 31, 37 (2d Cir. 1985) (evidence of truthfulness of information previously provided by informant was made relevant after defense alleged that informant fabricated the information and was unscrupulous and unreliable).⁽¹⁾

Appellant agrees with the government that he raises a claim under Rule 608(b) of the Federal Rules of Evidence for the first time on appeal (Government's Brief at 11). Therefore, this claim must be reviewed for plain error. See United States v. Olano, 507 U.S. 725 (1993).

B. Agent Haera's Testimony That The Informant Had Been Truthful In The Past Should Have Been Excluded.

Appellant agrees that a witness whose credibility has been attacked as biased may be rehabilitated with evidence that meets the bias allegation (Government's Brief at 14). See e.g., United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996) (bias attack suggesting informant needed "bigger fish" like defendant to procure own plea bargain properly rebutted by testimony that informant had cooperated against many other equally "big fish").

Appellant also agrees that where a police informant's testimony has been attacked as biased based on his self-interest in obtaining a shorter sentence, that inference may be rebutted by introduction of the informant's plea agreement which sets out the penalties he will suffer if he lies (Government's Brief at 14, n.5, citing United States v. Spriggs, 996 F.2d 320, 324 (D.C. Cir. 1993)). Here, defense counsel's run-of-the-mill cross-examination of Agent Haera suggested that Perry's testimony could be biased based on his self-interest in obtaining a shorter sentence (Tr. 11/2/99 at 44-45). The prosecutor rebutted that suggestion by introducing the plea agreement into evidence, and exploring its truth-telling requirements with the informant (Tr. 11/2/99 at 60-64):

Q. [D]oes this agreement impose certain obligations on you that you're required to follow in order for the plea agreement to be valid?

A. Yes.

Q. And looking at paragraph 3, on the second page, can you tell the members of the jury what paragraph 3 obligates you to do?

A. Yes. This obligation is for me - I'm obligated to cooperate with the attorneys prosecuting this case fully and truthfully to the best of my knowledge and ability.

Q. And then I'd like to direct your attention to the third page in paragraph C at the top. Can you tell the members of the jury what that paragraph obligates you to do?

A. Yes. It obligates me to testify in any - any court proceedings truthfully and honestly with the understanding that I can face perjury charges if I don't do so.

Q. And do you understand in your plea agreement that if you don't tell the truth, not only will you face perjury charges.

DEFENSE COUNSEL: Excuse me, Your Honor. Leading.

THE COURT: Sustained.

Q. Is there any other thing that will happen to you apart from being subject to prosecution for perjury if you don't tell the truth under that plea agreement?

A. Yes. If I don't follow everything in this agreement, my agreement will be voided, and I would then face the mandatory 10-year sentence which I pleaded with the hopes of not facing or receiving.

* * *

Q. Now, let's talk about what the government promised you as part of that [� 5K1] agreement. What's your understanding of what the government agreed to do for you in exchange for you pleading guilty and cooperating?

A. Well, they agreed to drop two cases I had pending in Superior Court, and they would also provide me with protection while the investigation was ongoing. . . . If I cooperated truthfully and - that the 5K will be filed on my behalf.

* * *

Q. What is your understanding of when [the two Superior Court cases] will be dismissed?

A. They will be dismissed after - after my testimony in all cases relevant to this investigation and it is determined that I testified truthfully and followed all my obligations that I had to the plea agreement.

* * *

Q. Do you understand that if you don't tell the truth today, you're subject to prosecution for perjury?

A. Yes.

The government is wrong in its claim that Agent Haera's testimony that Perry had been truthful in the past was proper (Government's Brief at 14-15). Haera's testimony did not rehabilitate Perry on the question of his potential bias based on his self-interest in obtaining a shorter sentence. Rather, it introduced irrelevant evidence of past instances in which Perry had been truthful and had the effect of bolstering his credibility.

Specifically, the government's claim that Haera's testimony was proper because the "results of Perry's cooperation in other cases" rebutted the suggestion that Perry was biased out of self-interest in getting a shorter sentence in this case (Government's Brief at 14) lacks logical force. The fact that Perry had been truthful on other occasions did not make it less probable that his testimony in this case was tainted by his self-interest.⁽²⁾ His previous truthfulness had no bearing on any matter, except to bolster his credibility before the jury. Because the evidence was not relevant to the question of Perry's potential bias in this case, but unfairly bolstered his credibility, it should have been excluded.

The government chiefly relies on a Seventh Circuit case, United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (Government's Brief at ii, 13, 15, 19). The Lindemann case is a good example of proper rebuttal to an inference of bias. In that case, the government alleged that the wealthy George Lindemann, Jr., paid a professional horse-killer, Tommy Burns, to kill Lindemann's horse so that he might collect on a $250,000 insurance policy. Id. at 1235. Subsequent to the killing, Burns became an informant for the FBI and provided information about 15 horse killings, including Lindemann's horse. Id. at 1242. At trial, the defendant attacked Burns' credibility by suggesting that "he would not have gotten a plea deal if he hadn't come up with the name of a 'big fish' like Lindemann." Id. On re-direct, the government sought to rehabilitate Burns' credibility with testimony that the investigation involved the killings of 14 other horses and involved 30 other defendants, many of whom were equally wealthy and famous, and most of whom pleaded guilty. Id. The court held that defendant's suggestion that Burns falsely implicated him to obtain a plea deal was an attempt to show that Burns had a bias. Id. at 1243. The government was entitled then, to show that Burns did not need to falsely implicate Burns to get a favorable plea deal. Id. The re-direct examination answered the bias attack on Burns' credibility.

As in Lindemann, the prosecutor here was entitled to answer the suggestion raised by the cross-examination: Here, that the jury "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." (D.C. Criminal Jury Instruction No. 2.24, Informer's Testimony) (Tr. 11/2/99 at 184). The prosecutor answered that suggestion of bias in her lengthy examination of Perry about his plea agreement. The government was not entitled, however, to introduce evidence that Perry had been truthful in the past because that evidence was not tailored to answer the bias attack. Lindemann does not aid the government⁽³⁾

Nor does the record support the government's claim that appellant "practically invited" Haera's improper testimony by "suggesting that Perry would get 'credit' for merely 'accusing' other people of crimes, whether the accusations were founded or not." (Government's Brief at 14-15). First, pursuant to the plea bargain, Perry clearly would benefit by providing "founded" accusations to law enforcement. See Tr. 11/2/99 at 44-45. Second, defense counsel's examination did not suggest that Perry's plea bargain allowed him to benefit from "unfounded" accusations. Haera testified (Tr. 11/2/99 at 44-45):

Q. And in your discussions, you talked about how if he helps you accuse other people, you could help him avoid doing time?

A. Well, I wouldn't say accuse people. But he would assist in the investigation. It was kind of a cooperative effort. Sometimes Mr. Perry -- as a matter of fact, in this case -- called me up with this information.

Q. So what -- the way it works is the more he helps you out, the more he helps himself out; isn't that correct?

A. That's the way it works.

Even if counsel's questions had suggested that Perry would benefit under the plea bargain by making false accusations, Agent Haera's answers successfully dispelled any such suggestion. See Tr. 11/2/99 at 45 ("I wouldn't say accuse people. But he would assist in the investigation.").⁽⁴⁾ As the government notes, the questions of lawyers are not evidence (Government's Brief at 16, n.7). Finally, even if the defense had alleged that Perry would benefit under the plea bargain for falsely accusing people, evidence of his truthfulness in the past would not rebut that allegation. Thus, Haera's testimony about Perry's past truthfulness was not relevant to any issue except to unfairly bolster Perry's credibility. It should have been excluded.

The government argues that the irrelevant, bolstering testimony was not "unduly prejudicial" (Government's Brief at 20) because, although Perry was the only critical witness against appellant, he "did not testify in a vacuum." (Government's Brief at 20). That argument must fail; for all the reasons stated in appellant's opening brief, the testimony most certainly was "unduly prejudicial." The government's recitation of testimony that corroborated Perry's version of events is meaningless because none of that evidence corroborated Perry's word that appellant, but not "Cat Face," sold the gun to him. Furthermore, the so-called corroboration was not inconsistent with appellant's theory of defense: Appellant never denied that he passed Officer Brooks as he entered Perry's apartment (Government's Brief at 20), or that Brooks waited nearby until Perry told him that the sale was complete (Government's Brief at 21), or that Brooks retrieved the gun from Perry (id.), or that the conversations in the apartment had been overheard by Haera, who could hear another voice besides Perry's (id.). Nor were the images on the videotape inconsistent with appellant's theory that "Cat Face" sold the gun to Perry.

Finally, the testimony plainly should have been excluded pursuant to Rule 608(b) of the Federal Rules of Evidence. Appellant agrees that Fed.R.Evid. 608(b) does not require exclusion of extrinsic testimony of bias or lack of bias (Government's Brief at 18). See United States v. Abel, 469 U.S. 45, 50 (1984). That observation does not help the government's cause, however, since Haera's testimony that Perry had been truthful in the past was offered to prove his "character for truthfulness" - the very thing that the Rule prohibits. Id. at 55. The trial court committed plain error by allowing Haera's testimony. See Olano, 507 U.S. at 732; Fed.R.Evid. 608(b). And, the error affected substantial rights in that it improperly bolstered the credibility of the only witness against appellant who mattered - the only witness who identified appellant as the person who sold the gun. Finally, a trial court's admission of evidence wrongly bolstering a witness who the jury should view with "suspicion" and "caution," D.C. Criminal Jury Instruction No. 2.24, "seriously affected the fairness, integrity [and] public reputation of judicial proceedings." Olano, 507 U.S. at 732.

CONCLUSIONBecause 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 SERVICE

I HEREBY CERTIFY that two copies of the foregoing Reply Brief 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 29th day of August, 2000.

___________________________________

Sandra G. Roland

1. Thus, the government's argument in footnote 4 of its brief that appellant has abandoned his argument as to the relevance of the complained-of testimony should be dismissed (Government's Brief at 11, n.4). See also Appellant's Brief at 9, quoting Fed.R.Evid. 401 (defining "relevant evidence").

2. The government does not dispute that Perry was motivated here by self-interest. Indeed, it is implausible that Perry, a man awaiting disposition in two felony drug cases and one kidnapping case, was motivated by a sudden kinship with law enforcement.

3. Likewise, four of the five cases cited by the government on this issue (Government's Brief at 15-16) are distinguishable because they involved circumstances in which the testimony at issue was tailored to rebut the specific attack on credibility. See United States v. Lochmondy, 890 F.2d 817, 821 (6th Cir. 1989) (defense allegation that immunized cooperator was "master of deception" who "lied about everything," properly rebutted by testimony that some defendants had admitted guilt or were convicted); United States v. Sanchez, 790 F.2d 1561, 1564 (11th Cir. 1986) (cross-examination suggesting DEA informant unsuitable for federal investigative work properly rebutted by testimony that DEA had found informant to be reliable); United States v. Martinez, 775 F.2d 31, 37 (2d Cir. 1985) (defense allegation that informant previously fabricated accusations that prison guards aided his escape and that no guard was convicted, properly rebutted by testimony that all accused guards pleaded guilty); United States v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984) (insinuation that large sums of money paid to informant provided motivation for informant to slant testimony properly rebutted by testimony showing that compensation was reasonable in light of informant's other work for government).

Appellant asserts that cases holding that "evidence of cooperation on other matters is admissible to justify a cooperation agreement and to rebut allegations of bias," Lochmondy, 890 F.2d at 821, are wrongly decided to the extent that they hold admissible evidence that the informant's information proved to be truthful and trustworthy in other matters. See e.g., United States v. Penny, 60 F.3d 1257, 1264 (7th Cir. 1995) (response to question about outcome of informant's cooperation in other cases, "We seized a lot of property, a lot of assets, arrested some people. People were convicted" admissible rebuttal to attack on credibility).

4. Haera adopted the term "credit." See Tr. 11/2/99 at 45 ("[If somebody gets arrested,] [h]e would receive credit.").