UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO.

BRIEF FOR APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

PAUL T. xxxxxx, Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATUTES AND RULES

Pertinent statutes and rules are set forth in the Addendum to this brief.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.

ISSUE PRESENTED FOR REVIEW

Whether the evidence was legally insufficient to support the jury's verdict that Mr. xxxxxx possessed a firearm where the prosecution's case rested on the uncorroborated, inconclusive, and ambiguous testimony of a single police witness.

STATEMENT OF THE CASE

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

On August 20, 1996, a federal grand jury sitting in the District of Columbia returned a three-count indictment charging Mr. xxxxxx with unlawful possession of a firearm and ammunition by a convicted felon (Counts One and Two, respectively), in violation of 18 U.S.C. § 922(g)(1), and carrying a pistol without a license (Count Three), in violation of D.C. Code § 22-3204(a). [A. 7]

After conducting an evidentiary hearing on Mr. xxxxxx's motion to suppress statements, the district court denied the motion. (2/12/97 Tr. 28) Immediately thereafter on February 12, 1997, a jury trial commenced before the Honorable Thomas A. Flannery. On February 13, 1997, the jury began its deliberations. Shortly before the court was to adjourn for the day, it received a note from the jury indicating that it was deadlocked on all three counts. (2/13/97 Tr. 75) In response to the note, the court instructed the jury to return the following day to continue its deliberations. (Id. at 77) On the following morning, the court gave the jury an anti-deadlock charge. (2/14/97 Tr. 2-3) After further deliberations, the jury returned a verdict finding Mr. xxxxxx guilty on the charge of unlawful possession of a firearm by a convicted felon. (Id. at 4-5) The jury was unable to reach a verdict on the other two counts, which were then dismissed by the government. (Id. at 5-7)

On May 2, 1997, the court sentenced Mr. xxxxxx to 57 months of imprisonment and 3 years of supervised release. (5/2/97 Tr. 8) The court entered its judgment on the same date. [A. 9] Thereafter, on May 9, 1997, Mr. xxxxxx filed a timely notice of appeal. [A. 13]

B. Statement of Facts

The government presented its case exclusively through three police witnesses: Officers Troy Ray, David Poe, and Tira Gibson.Officer Ray testified that around 2:00 p.m. on April 8, 1997, he picked up Officer Poe at the courthouse to drive him to his foot-beat. (2/12/97 p.m. Tr. 8-9) At the time, Ray was driving a scout car and both officers were in uniform. (Id. at 9) As they drove into an alley behind the 1100 block of Abbey Place, N.E., Ray observed "some activity in the alley." (Id.) According to Ray, drug transactions frequently occur in that alley. (Id. at 10)

Officer Ray then saw Mr. xxxxxx, who was standing sideways and talking to another person near the front of a Pathfinder truck parked in the alley. (Id. at 10-12) Ray pulled the scout car into the alley toward the rear of the parked truck. (Id. at 11) According to Ray, Mr. xxxxxx looked up toward the scout car and then started to walk around the front of the truck. (Id. at 11-12) As he began to walk away, xxxxxx reached his hand into his waistband. (Id.) At that point, xxxxxx was turned sideways. (Id. at 12) Ray did not observe anything in Mr. xxxxxx's hand or in his waistband. (Id. at 12-13) In particular, Ray did not see a gun in Mr. xxxxxx's hand or in his waistband. (Id. at 25) Ray testified that the movement xxxxxx made in reaching his hand into his waistband was consistent with someone preparing to go to the bathroom. (Id. at 27-28)

xxxxxx then walked from the driver's side of the parked truck, around the front of it, and over to a trash can that was located on an angle to the passenger side of the truck. (Id. at 13, 25-27) When xxxxxx walked around the front of the truck, Ray, who was still sitting in the police car, temporarily lost sight of him. (Id. at 13-14) Ray maneuvered inside the police car so that he was able to see the trash can near the passenger side of the truck. (Id. at 13-14) At that time, Ray saw Mr. xxxxxx walk toward the trash can, bend down and place his hand in the trash can, and then pull his hand out of it. (Id. at 14) No one else was in the area of the trash can at that time. (Id. at 16) About 10 to 20 seconds elapsed from the time Ray saw Mr. xxxxxx reach into his waistband until the time xxxxxx pulled his hand out of the trash can. (Id. at 29) Ray did not see xxxxxx place anything into the trash can. (Id. at 14)

Believing that xxxxxx had put something inside the trash can, Ray exited the scout car. (Id. at 14-15) xxxxxx then walked toward Ray and, while adjusting his pants, told Ray that he "was trying to use the bathroom." (Id. at 15) Ray walked past xxxxxx toward the trash can and told Officer Poe to stop xxxxxx. (Id.)

Ray looked into the trash can and saw a silver semi-automatic handgun.