UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. xxxxxxxx

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.

xxxxxxxxxxxxx, Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



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BRIEF FOR APPELLANT

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JURISDICTION



The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A notice of appeal from the final judgment of the district court (entered September 27, 1995) having been filed on September 28, 1995, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED FOR REVIEW

I. Whether the government produced insufficient evidence that Mr. xxxxxxx agreed to join the five-week, seven-transaction, conspiracy charged in the indictment when the evidence, at most, established a single drug sale by Mr. xxxxxxx, and whether he was substantially prejudiced by the variance between the proof and the charge.

II. Whether the trial court erred (1) in admitting the drugs allegedly purchased from Mr. xxxxxxx when the government failed to rebut the inference of tampering raised by a 12-day gap in the chain of custody; and (2) in violating Mr. xxxxxxx's right to present a defense and confront witnesses by cutting off defense counsel's inquiries concerning the chain of custody -- an issue the jury specifically inquired about during deliberations.

III. Whether Mr. xxxxxxx's defense was irreparably prejudiced in violation of Fed. R. Evid. 403 by the testimony of the Gang Task Force officer who executed his bench warrant that he recognized the defendant "from a prior investigation" when the defense had offered to stipulate to the facts of the bail-jumping case.

IV. Whether the district court erred in denying Mr. xxxxxxx a judgment of acquittal on the Bail Reform Act charge when the government presented insufficient evidence that Mr. xxxxxxx (1) had "been released under" that statute, as opposed to the parallel District of Columbia statute; (2) had failed to appear "as required by the conditions of release;" and (3) had knowledge of the time and place he was to appear such that any failure to do so was willful.

V. Whether the district court misapplied the sentencing guidelines in denying Mr. xxxxxxx a downward departure under United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994).

STATUTES AND RULES

The pertinent statutes and rules are set forth in the Addendum.

STATEMENT OF THE CASE

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

This case arose out of a series of seven undercover drug buys by Officers Mark Carter and Stanley Farmer in the spring of 1991. The first six transactions were conducted with individuals named "Moe," "Richie," and "Bird," for the most part in the parking lot behind 1803 4th Street, N.W. For the final transaction on May 10, 1991, Moe and Richie took the officers to an apartment building at 1620 15th Street, N.W., where a man on the porch handed a bag of drugs to Officer Carter. Moe and Richie were arrested after the officers returned to 1803 4th Street and turned over to them a bag of guns that Moe and Richie had bartered for in exchange for paying for part of the cocaine. The police then returned to 1620 15th Street and arrested Mr. xxxxxxx. He was presented in D.C. Superior Court on Saturday, May 11, 1991, and released on the condition that he report to federal district court on May 13, 1991, at 11:00 a.m. Although Mr. xxxxxxx did report to the Pretrial Services office in federal court that morning, he was not present for his arraignment that afternoon. A bench warrant was issued that day, but was not executed until August 30, 1994.

Meanwhile, on June 6, 1991, a federal grand jury issued a 14-count indictment against Mr. xxxxxxx, along with Richard Shorter (aka "Richie"), Maurice xxxxxxx (aka "Moe") and Damon Edwards (aka "Bird"). (1) (A. 16). (2) Mr. xxxxxxx was charged in three counts with conspiring to distribute cocaine base (Count 1), conspiring to obtain pistols in relation to a drug trafficking offense and to possess an unregistered firearm (Count 2), and distribution of cocaine base on May 10, 1991 (Count 13). A superseding indictment filed on October 17, 1991, added additional charges against the other defendants; Mr. xxxxxxx remained charged in the original three counts (renumbered as Counts 1, 2, and 14). (A. 26). (3)

At the time of Mr. xxxxxxx's arrest on the bench warrant in August of 1994, the case against the other three defendants had been resolved through guilty pleas. On January 19, 1995, the government brought a three-count superseding indictment against Mr. xxxxxxx. (A. 39). The new indictment continued to charge appellant with conspiracy to distribute cocaine base in violation of 21 U.S.C. 846 (Count 1) and distribution of 50 grams or more of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii) (Count 2). It did not include the original gun conspiracy charge but included a new charge of failure to appear while on pretrial release in violation of the Bail Reform Act ("BRA"), 18 U.S.C. 3146 (Count 3).

Trial commenced before the Honorable Louis F. Oberdorfer on April 3, 1995. Although noting that the case was "thin" (4/7 Tr. 15), the court denied counsel's motions for judgment of acquittal and sent the case to the jury. On April 10, 1995, the jury returned a verdict of guilty on all three counts. Mr. xxxxxxx filed a post-trial motion seeking a judgment of acquittal, or in the alternative a new trial, on the two drug counts, and a judgment of acquittal on the bail-jumping count. (A. 55-116). On July 26, 1995, the district court denied the motion as to the drug counts, but held the motion under advisement as to the BRA count. (A. 145-50). On August 4, 1995, the court denied the motion for judgment of acquittal on the BRA charge. (A. 151-56).

On September 13, 1995, Mr. xxxxxxx was sentenced to concurrent terms of 188 months' imprisonment on the two drug counts and a consecutive sentence of one month imprisonment on the BRA count for a total sentence of 189 months. (A. 157-58). Mr. xxxxxxx was also sentenced to concurrent terms of 5 years' supervised release on the drug counts and 2 years' supervised release on the failure to appear count. (A. 159). Mr. xxxxxxx filed a timely notice of appeal (A. 83-84).

B. Statement of Facts

On the morning trial began, Judge Oberdorfer urged the prosecutor not to offer proof on all seven of the overt acts charged (4/3 Tr. 10-16), asking, "Can't you use some sense here?" (4/3 Tr. 10). The prosecutor acknowledged that the inclusion of the seven alleged transactions as overt acts "was a less than artful drafting of the indictment by our grand jury section" and offered a retyped version omitting the overt acts. (4/3 Tr. 11). When the court asked why the prosecutor did not simply take a half-day to file the new indictment and dismiss the old one, the prosecutor indicated that he would have to wait until the grand jury was scheduled to return. (4/3 Tr. 11). The prosecutor stated his intention to prove all the transactions so that the jury could "grasp the breadth of the conspiracy." (4/3 Tr. 13). The court noted that wasting time in an overcharged case "gives your office a bad name." (4/3 Tr. 14).

Later, before the openings, the court noted that in presenting their proof, the parties should be guided by the recent decision in United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 327 (1995), holding that sentencing courts in drug cases are to determine the scope of the conspiratorial agreement each defendant joined and are to attribute to each defendant only those drugs that are in furtherance of that agreement. (4/3 Tr. Exc. 77-78). After openings, the court provided counsel with a copy of the Mitchell opinion and again told the prosecutor, "you want to read this case, too, because it looks to me like you've got one transaction that is all encumbered with a lot of other things. You might think about whether it's worth all this effort." (4/3 Tr. Exc. 102).

The next morning, the prosecutor reported that "after consulting with supervisors after discussing the matter, I think that based on the Government's theory of the case, it will be necessary to put in the other transactions." (4/4 Tr. 3).

1. The Evidence on the Drug Counts.

a. The First Six Transactions.

Prior to the single transaction in which Mr. xxxxxxx allegedly participated, Officer Carter and Officer Farmer, posing as two drug dealers, had purchased cocaine base from Moe and Richie on April 3, 1991 (6.21 grams), April 10, 1991 (3.5 grams), April 12, 1991 (5.81 grams), April 16, 1991 (116.87 grams), April 24, 1991 (110.66 grams), and May 2, 1991 (10.24 grams) (4/4 Tr. 11-38; 4/6 Tr. 156-62; A. 119 n.3). (4) Most of these transactions took place at the rear of 1803 4th Street. (4/5p.m. Tr. 35-36). Before the large April 16 transaction, however, Richie explained that he would have to go talk to the "big man" before he could provide the officers with that quantity. (4/4 Tr. 27). For that transaction, the officers followed Richie and Bird to 12th Street and S Street, N.W. (4/4 Tr. 28). The supplier, a man Carter understood Bird to refer to as "Dennis," gave the drugs to Bird, who then made the exchange with the officers. (4/4 Tr. 29-31, 37; 4/5a.m. Tr. 19-25; 4/6 Tr. 272). The officers were not able to give a description of the supplier because he stayed out of sight in the dark, telling Carter to stop when Carter attempted to approach with Bird. (4/4 Tr. 30). Officer Todd Williams testified for the defense that he had checked the license tags on a car at the scene and learned that it was registered to a "Dennis Bolden," an individual who had previously been investigated for drug involvement. (4/6 Tr. 270-74).

b. The May 10, 1991 Transaction

For what was planned as the final transaction, the officers arranged to purchase 250 grams of cocaine base in exchange for $7000 and several firearms (4/3 Tr. 30-32; 4/5p.m. 26-27, 35). The government admitted into evidence an audiotape of telephone calls on the morning of May 10, 1991, between the undercover officers and Moe and Richie, in which they negotiated the final terms of the transaction. (Govt. Ex. 3A; A. 44-52; 4/3 Tr. 32-37). The unidentified "he" or "him" who was selling the cocaine wanted $9000 for 250 grams, but it was agreed that the officers would bring $7000 and several guns, including a Glock 9 mm automatic handgun, a Baretta semi-automatic 9 mm handgun, and a Mac 10 submachine gun with a silencer. (4/3 Tr. 37-38). Although Moe and Richie made clear that the unidentified seller had no interest in trading drugs for guns and that the guns were part of a side deal in which Moe and Richie would pay the $2000 difference (4/3 Tr. 47; 4/4 Tr. 38; 4/5a.m. 34-35, 36-37; 4/6 Tr. 27; A. 49-52), the court admitted a photograph of the guns over defense objection. (4/3 Tr. 46-47). The officers then drove to 1803 4th Street with the bag of guns and $4830 in cash, (5) with Officer Carter wearing a Nagra body wire and the arrest team videotaping from a surveillance van in the Safeway parking lot behind the house. (4/3 Tr. 41-43, 49-50; 4/5 p.m. Tr. 13-14). When the officers arrived at the rear of the house, they learned that the cocaine was not there. (4/3 Tr. 43-45). After a brief wait outside, Richie told the officers that they would have to drive to another location to buy the cocaine. (4/3 Tr. 49). Richie drove Officer Carter to 1620 15th Street in Bird's Nissan Maxima and Officer Farmer and Moe followed in the officers' Jeep (4/3 Tr. 49, 52-53). There was no audio or video evidence of the events away from 1803 4th Street because, as they were leaving, Officer Carter's Nagra body wire malfunctioned (4/3 Tr. 50-51) and the arrest team was under orders not to leave the surveillance scene (4/5a.m. Tr. 55; 4/5p.m. Tr. 14, 32).

Upon arriving at 1620 15th Street, Officer Carter stood outside the front fence five feet away while Richie approached a man standing on the landing of the porch steps. (4/3 Tr. 53-62). (6) The man said, "I want you to count the money." (4/3 Tr. 62). (7) Knowing that the money was short, Carter protested and began to walk away toward the corner. (4/3 Tr. 63, 66-68). Richie followed Carter to the corner and asked him to wait. (4/3 Tr. 67). (8) Richie then went back and told the man on the steps that he had counted the money, although he had not. (4/3 Tr. 67-68). The man told Richie that if the money wasn't right, "I'm coming back and get you." (4/3 Tr. 67).

The man then went inside the apartment building and returned with a brown grocery bag. (4/3 Tr. 68). He walked to the foot of the steps, where he and Carter exchanged the money for the bag. (4/3 Tr. 68-70). The entire transaction, including the time that Carter was arguing with Richie and the time the man was inside the building, lasted only approximately five minutes. (4/3 Tr. 71; 4/5a.m. Tr. 56).

Carter suggested to Richie that they return to 1803 4th Street to make the gun exchange. (4/3 Tr. 71-72). The officers drove back together with the bag of guns in the back seat of the Jeep, with Moe and Richie riding together in the Maxima. (4/3 Tr. 72; 4/4 Tr. 53-54; 4/6 Tr. 110). Carter testified that during the ride back he looked in the bag and saw that it contained a package of noodles and an oatmeal canister containing what appeared to be crack cocaine and that he conducted a positive field test in the car on the way to 1803 4th Street. (4/3 Tr. 78-79; 4/5a.m. Tr. 64-67). (9) When they arrived, Moe reached in the Jeep to take the guns, at which time the arrest team moved in. (4/3 Tr. 72-73; 4/4 Tr. 54, 67; 4/6 Tr. 96).

Carter and Farmer then sped back to 1620 15th Street, with other officers following behind, arriving back at the apartment building approximately 20 minutes after the transaction had taken place. (4/3 Tr. 73-74; 4/5a.m. Tr. 49). Carter testified that he ran up the steps with Farmer and Sergeant Hickey "and a whole lot of police officers" (4/3 Tr. 75; 4/5a.m. Tr. 41-42). (10) Carter and Farmer had their guns drawn and Carter's "[a]drenaline was pumping." (4/3 Tr. 75; 4/6 Tr. 97, 108). Carter testified that he saw Mr. xxxxxxx standing behind the locked glass front door of the apartment building and recognized Mr. xxxxxxx -- the only person there -- as the man who had handed him the bag. (4/3 Tr. 75-78; 4/5a.m. Tr. 41, 61; 4/6 Tr. 108). Farmer testified that Carter pointed at Mr. xxxxxxx said, "that's him right there." (4/6 Tr. 97). Carter ordered Mr. xxxxxxx to open the door, which he did. (4/3 Tr. 76; 4/6 Tr. 97). Carter then grabbed him and handed him off to other officers who placed him under arrest. (4/3 Tr. 77-78). Carter confirmed on cross-examination that no money was found on Mr. xxxxxxx. (4/5a.m. Tr. 57). (11) The government introduced two items seized from Mr. xxxxxxx's person: an International Video Club card signed in the name "Gary xxxxxxx" and an identification card in the name Jose A. Gonzales showing an address of 1620 16th Street, N.W. (4/5 p.m. Tr. 24-26). (12)

Carter acknowledged that at no time before he arrested Mr. xxxxxxx had he told anyone, or attempted to record, a contemporaneous description of the man who had handed him the drugs. (4/5a.m. Tr. 8-10, 50). Carter's identification of Mr. xxxxxxx as the man who had handed him the drugs four years earlier was also impeached with his admission that prior to the identification hearing the prosecutor had shown him a photograph of the defendant and asked, "Is this the person who sold you the drugs?" (4/5a.m. Tr. 61-63).

c. The Chain of Custody Issue

Carter testified that he turned the grocery bag and its contents over to Detective Todd Williams back at the station. (4/5a.m. Tr. 67). Williams testified that he took the evidence to fingerprint technician Picciano and watched as he dusted for prints. (4/5p.m. Tr. 45-46, 48). (13) Williams then turned the evidence over to Investigator Wayne Stancil for processing of the paperwork. (4/5p.m. Tr. 46). Stancil testified that he placed the drugs inside a heatsealed envelope, sealed it and the other contents of the grocery bag in a box, and that same day, Friday, May 10, 1991, delivered the box in person to the vault at the Narcotics Branch, also known as the Morals Division. (4/6 Tr. 112-20).

The DEA chemist who analyzed the material allegedly purchased on May 10, 1991, testified that there was no sign of tampering when he opened the package and that it contained 219.7 grams of 52% cocaine base. (4/6 Tr. 151, 154). He further testified that the section of the DEA-7 stating that the package had been received on 5/22/91 was completed by the MPD, not the DEA. (4/6 Tr. 171-72). When defense counsel asked whether the chemist knew from his records when the evidence had been received at the DEA, the court sustained the prosecutor's relevancy objection and refused to allow defense counsel to approach for a bench conference. (4/6 Tr. 172). Officer David Stroud testified as an expert in the safeguarding of drug evidence and explained the procedures used by MPD to safeguard the chain of custody. (4/6 Tr. 226-27, 228-31). He testified that after drugs are received at the locked closet in the Narcotics Branch, and assuming there is no sign of tampering, they are taken on the next business day to the DEA laboratory. (4/6 Tr. 230-31). Reviewing the DEA-7 for the evidence Officer Stancil claimed he took to the narcotics branch on May 10, 1991, Stroud explained on cross-examination that the "received" date of May 22, 1991, would have been entered by the officer who physically took the package to the DEA laboratory. (4/6 Tr. 252-53). With the exception of holidays and manpower constraints, deliveries are made from the branch to the laboratory every day. (4/6 Tr. 253). The following exchange then occurred (4/6 Tr. 253-54):

Q: Now, if you look at the calendar in front of you, in accordance with standard procedures, if drugs were purchased on May 10th, when should they arrive at the lab?



Mr. Burley: Objection.



The Court: Objection sustained.



Ms. Holt: Your Honor, may we approach?



The Court: No. Objection is sustained, you go on to something else.



By Ms. Holt: Do you know based on your experience if the drugs were purchased on 5/10, why did you receipt it on 5/22?



The Court: Objection is sustained, same ruling. Go on to another subject.



Ms. Holt: That's why I wanted to approach. I'm not sure what it is that I'm doing that's objectionable.



The Court: You can understand me from here. I don't want you to ask any further questions about that particular question of how long it takes drugs to get to the lab. If you have something else you want to inquire about, please do, but don't try to cut around edges. Just do it.



By Ms. Holt: The drugs -- okay. When the officer seals the box up and puts the drugs in the box, okay? Or however he packages the drugs up, when he does that that day and he takes them over -- not to the lab but to the branch, is there a document or something that reflects the delivery to the --



The Court: Objection sustained.



Mr. Burley: Objection.



The Court: That's over, that part of the examination is over.



Ms. Holt: Your Honor, can I please approach?



The Court: No, ma'am, but do abide by my order.



Ms. Holt: I thought I was asking something different, that's why I'm trying to ask what I may ask.



The Court: Go on to something else.

At a later bench conference during Stroud's testimony, counsel sought to explain what she was attempting to do with the chain of custody issue and objected to not being allowed to present her case, but the court ruled, "We're through with that. That's over." (4/6 Tr. 257-58). "I'm not going to go back to the chain of custody issue at all. You have your exception." (4/6 Tr. 259). The court admitted the drugs allegedly seized on May 10, 1991, over defense counsel's objection that the chain of custody was not complete. (4/6 Tr. 261-62).

2. The Evidence on the Bail-Jumping Count.

Although defense counsel offered to stipulate to the facts relevant to the bail-jumping charge and to the fact that the person arrested on August 30, 1994 (the defendant) was the same person arrested on May 10, 1991, the government insisted on putting on its proof. (4/6 Tr. 128-31, 215-16).

D.C. Pretrial Services officer Donna Madole laid the foundation for admission of Mr. xxxxxxx's release order executed in D.C. Superior Court on Saturday, May 11, 1991. (4/6 Tr. 175-80). The order, signed by Mr. xxxxxxx, a Pretrial Services officer, and Judge Peter H. Wolf, stated:

NEXT DUE BACK on 5-13-91 in Courtroom US DIST CT at 11:00 a.m./p.m. If you have any questions about the date, time, or location CALL THE D.C. PRETRIAL SERVICES AGENCY AT 727-2800.

(A. 96; 4/6 Tr. 182-83).

Madole testified that she was on duty in the Pretrial Services Agency office in Room 1413 of the federal courthouse on May 13, 1991. (4/6 Tr. 184). Computer records indicated that Mr. xxxxxxx had checked in at that office at 9:04 a.m. (A. 116). Ms. Madole testified that Mr. xxxxxxx had "probably" checked in by signing a sign-in sheet on the door (since shredded). (4/6 Tr. 184-86). This testimony was based on (1) the fact that the office is ordinarily closed at 9:04 a.m. because she is on a mail run at that time, and (2) the fact that, if he had checked in in person, the computer record would have indicated that he had been instructed to report to a particular courtroom. (4/6 Tr. 190-95).

Barbara Hall was Magistrate Robinson's courtroom deputy on May 13, 1994. (4/6 Tr. 199). She testified that hearings on initial appearances begin at 1:30 p.m. and that the criminal blotter for that day indicated that Mr. xxxxxxx did not appear for his hearing. (4/6 Tr. 199-201, 205-06). The bench warrant issued that day showed an execution date of August 30, 1994. (4/6 Tr. 202-03).

Detective Michael Cencich of the Violent Crime, Gang Task Force, Intelligence Branch, arrested Mr. xxxxxxx on the night of August 29, 1994, as he was using a pay phone at Colorado and Military Roads, N.W. (4/6 Tr. 207-11). Cencich testified over defense objection that he had recognized the defendant as a person he knew as Jose de la Espada "[f]rom a prior investigation." (4/6 Tr. 208). Cencich had never met Mr. xxxxxxx but had seen pictures of him. (4/6 Tr. 209). Mr. xxxxxxx told Cencich that his name was Gregory Leaper and produced a fictitious driver's license in that name. (4/6 Tr. 211-12). (14) Cencich then arrested him under the outstanding bench warrant. (4/6 Tr. 212).

3. The Motions for Judgment of Acquittal

The defense moved for a judgment of acquittal on all three counts at the close of the government's case. Over objection, the court took the motion under advisement and deferred argument until after the defense case in order to accommodate one of the police officers under subpoena for the defense. (4/6 Tr. 267-69). During argument (4/7 Tr. 4-15), the prosecutor acknowledged that the gun conspiracy "is a separate conspiracy" that "does not involve this defendant." (4/7 Tr. 11). In response to the defense argument that there was no evidence showing Mr. xxxxxxx to be a participant in the overall conspiracy -- the alleged "main man" referred to in the audiotapes -- the prosecutor conceded that "the government is not even contending that the defendant is necessarily a main man." (4/7 Tr. 11). The court ruled (4/7 Tr. 14-15) (emphasis added):

[T]he facts except for the intent are clear on the bail jumping count. It is obviously an original question. This whole business of presentment in Superior Court and then the arraignment over here is a complication that obviously hasn't been addressed. . . . There is no way that on a Saturday that somebody in Superior Court would know the way that we are organized now what courtroom a defendant should report to. This is a legal problem so far as I see it, and I am going to let it go to the jury, and reconsider it depending on the verdict.

Similarly, with the identification issue, it is thin, but I believe that there is enough to go to the jury, and we will see what they do with it. And similarly, with the conspiracy, this could go either way.

I don't see any real legal problem in the conspiracy charge. Whether the government has proved it or not, certainly not in the first instance. I want to see what the jury does with that.

The motion was renewed and denied for the same reasons after the defense rested. (4/7 Tr. 36).

4. The Deliberations.

Deliberations began on April 10, 1995, at 10:03 a.m. (4/10/95 Tr. 33). At 11:50 a.m., the jury sent out the following note:

Based on the testimony, we would like to ask this question. Where was the 219.7 g of cocaine stored between 3/10/91 and 3/22/91? (15)

(A. 53; 4/10/95 Tr. 34). The court reconvened at 2:00 p.m. Defense counsel agreed with the court that the appropriate answer would be that the jurors' recollection controls, but renewed her motion for mistrial based on the court's restriction of cross-examination bearing on the jury's question (4/10/95 Tr. 35). The court denied the mistrial motion and instructed the jury, "It is your recollection that controls" (4/10/95 Tr. 36). The verdict was reached less than thirty minutes later (A. 54).

5. The Sentencing.

At the presentence hearing, the prosecutor stated that, without waiving any argument that Mr. xxxxxxx was involved in a greater conspiracy, the government has determined that based on the sentencing guidelines in this case and based on the Mitchell opinion that it will not pursue the higher amount which would have been 514.351 grams, the aggregate [for all seven transactions], and instead accepts the presentence report writer's calculation that the appropriate amount is determined by the 219.07 grams which is directly tied to the defendant.

7/26p.m. Tr. 27-28. The court agreed with defense counsel that this concession did not confer any benefit on the defendant: "I think they did that because that's what the records support." (7/26p.m. Tr. 34-35).

With no criminal history points, but two points added to the offense level for obstruction of justice based on the bail-jumping conviction (over objection) (7/26p.m. Tr. 36; 9/13 Tr. 6), Mr. xxxxxxx's guideline range was 188-235 months. The defense requested a departure under United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), due to the increased severity of confinement to which Mr. xxxxxxx is subject as a deportable alien. (7/26a.m. Tr. 6-8, 7/26p.m. Tr. 30-44; 9/13 Tr. 4-5, 12-13). The court denied a departure, stating (9/13 Tr. 13):

I'm persuaded that there was an assumption of risk when he came to the United States illegally, and I'm not going to authorize a departure, simply because that might make him -- make prison life more difficult for him than it would be if he were legally an alien or citizen.

The court sentenced Mr. xxxxxxx to concurrent terms of 188 months' imprisonment on the drug distribution and conspiracy counts and a consecutive term of 1 month on the bail-jumping count. (9/13 Tr. 14-15).

SUMMARY OF ARGUMENT

I. As the district court attempted to persuade the government before trial, this case should have been a short and simple case about whether or not Officer Carter's identification of Mr. xxxxxxx as the man on the porch -- which the district court characterized as "thin" (4/7 Tr. 15) -- established Mr. xxxxxxx's identity as a drug distributor beyond a reasonable doubt. Instead, the government insisted on attempting to prove that Mr. xxxxxxx's participation in the May 10 distribution was in furtherance of his agreement to join a large conspiracy, involving multiple drug sales over a five-week period, and during which Mr. xxxxxxx's alleged co-conspirators negotiated with the undercover officers to acquire five firearms and a silencer. The evidence of conspiracy against Mr. xxxxxxx was insufficient as a matter of law. The most the government's evidence proved was a one-time buy-sell arrangement with the alleged co-conspirators.

Moreover, even if there was sufficient evidence that Mr. xxxxxxx entered some conspiracy, it was not the seven-transaction conspiracy described in the indictment, as evidenced by the fact that the court (with the government's concurrence) held Mr. xxxxxxx accountable at sentencing only for the 219.7 grams of cocaine involved in the May 10 transaction. The variance between the conspiracy charged (and all the prejudicial drug and gun testimony that came in as a result thereof) and the actual proof at trial, caused Mr. xxxxxxx substantial prejudice on all three counts of the indictment.

II. Given the doubt raised by the defense about the authenticity of the drugs allegedly distributed by Mr. xxxxxxx, the court erred in admitting those drugs at all. The evidence of an unexplained 12-day gap in the chain of custody -- inconsistent with MPD drug-handling procedures as described by the government's own expert -- shifted the burden to the government to eliminate the possibility of tampering as a matter of "reasonable probability." Even if the irregularities brought out by the defense were not alone sufficient to exclude the drugs, the court denied appellant his right to present a defense by cutting off entirely any further inquiry into the chain of custody. This Court cannot be sure beyond a reasonable doubt that additional questioning would not have led to the exclusion of the evidence or, at a minimum, created a reasonable doubt in the jurors' minds.

III. The court erred in allowing over objection testimony from the Gang Task Force officer who executed Mr. xxxxxxx's bench warrant that he recognized Mr. xxxxxxx "from a prior investigation." The district court did not engage in any balancing of the probative value and prejudicial impact of this "other crimes" evidence. Such an analysis shows that, given the defense offer to stipulate to the facts of the bail-jumping case, the testimony had no real probative value and served only to unfairly prejudice Mr. xxxxxxx's misidentification defense in violation of Fed. R. Evid. 403.

IV. The government presented sufficient evidence of only one of the five elements of bail-jumping. First, it did not prove that Mr. xxxxxxx was released under the federal bail statute, as opposed to the local District of Columbia statute. Second, it did not prove that he failed to appear "as required by the conditions of release." 18 U.S.C. 3146(a)(1). There was no evidence that Mr. xxxxxxx was not at "US DIST CT" on May 13, 1991, at 11:00 a.m. And finally, because the government did not prove that appellant either had actual notice that he was to be in Magistrate Robinson's courtroom at 1:30 p.m. or that he evaded such notice, it failed to prove that his failure to appear at that time and place was willful.

V. At a minimum, resentencing is required due to the district court's misapplication of the guidelines as interpreted by this Court in United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994).

ARGUMENT

I. THERE WAS INSUFFICIENT EVIDENCE TO PROVE THAT MR. xxxxxxx AGREED TO JOIN THE CONSPIRACY CHARGED IN THE INDICTMENT.

A. Standard of Review.

The court below rejected Mr. xxxxxxx's contention that the government had failed to prove his agreement to participate in the conspiracy charged in the indictment and had used the first six transactions in a way that was more prejudicial than probative. (4/7 Tr. 4-6; 7/26a.m. Tr. 5; A. 8-11; A. 145-50).

This Court recently addressed the standard of review for such claims: "'[V]iewing the evidence in the light most favorable to the prosecution,' we ask whether 'any rational trier of fact could have found the essential elements of [conspiracy] beyond a reasonable doubt.'" United States v. Graham, No. 93-3217, slip op. at 4 (D.C. Cir. May 21, 1996) (citations omitted). Variance between the evidence at trial and the conspiracy charged in an indictment is grounds for reversal "if appellants can show that the variance is material and that it substantially prejudiced them, such as by causing the jury to 'transfer evidence from one conspiracy to a defendant involved in another.'" Id. (citation omitted).

B. Mr. xxxxxxx Did Not Join The Conspiracy Described In The Indictment and Was Substantially Prejudiced By The Variance Between What Was Charged and What Was Proved.

The superseding indictment on which Mr. xxxxxxx was tried alleged that "[f]rom on or about April 3, 1991, through and including May 10, 1991," Mr. xxxxxxx, "together with unindicted co-conspirators" Richie, Moe and Bird, conspired to distribute cocaine base. (A. 39). The government did not prove this. In fact, the government did not prove that Mr. xxxxxxx joined any conspiracy, let alone the five-week conspiracy charged in the indictment. Even if all of the government's evidence was believed, the only thing reasonable jurors could conclude beyond a reasonable doubt was that Mr. xxxxxxx knowingly handed 219.7 grams of a substance containing cocaine base to Officer Carter on May 10, 1991, with $2000 of the payment coming from Moe and Richie (A. 49-52, 63). They could not conclude that Mr. xxxxxxx conspired with Moe and Richie (let alone Bird) to sell drugs.

"Governing law seems perfectly clear, which the government does not dispute, that a buyer-seller relationship does not make out a conspiracy even if the item sold is one to be used illegally." United States v. Morris, 836 F.2d 1371, 1374 (D.C. Cir. 1988). The facts of Morris are quite analogous to the facts here. An undercover officer bought PCP from Morris on three occasions. In one transaction, she obtained the PCP from an unidentified male; in the other two she obtained it from one McDowney. This Court reversed the conspiracy convictions of Morris and McDowney on the ground that the government had proved only an ordinary buyer-seller relationship between the two and had not proved that they "had knowledge of and formed the intent to promote a conspiracy." Id. at 1374. Here, Richie and Moe themselves supplied the officers with cocaine on five occasions. On the only occasion other than May 10 in which the drugs were supplied by a third party, they were supplied by an unidentified man referred to as "Dennis." Here, as in Morris, the evidence was not sufficient to prove beyond a reasonable doubt that, assuming Mr. xxxxxxx was the man on the porch, he conspired with Moe and Richie, as opposed merely to selling them part of the cocaine (which they had independently arranged to trade for the guns). (16)

Even assuming, arguendo, that the government proved that Mr. xxxxxxx joined some conspiracy, the government certainly did not prove it was the April 3-May 10 conspiracy charged in the indictment. The government failed to produce any evidence that Mr. xxxxxxx participated in or had any awareness of the other six transactions. The prosecutor himself elicited testimony that Mr. xxxxxxx was not present, nor was his name mentioned, during any of the prior deals. (4/4 Tr. 24, 36-38). During closing argument, the prosecutor conceded that the government had not proved that Mr. xxxxxxx was the main supplier -- the person who was the source of the drugs on May 10, 1991, and who, by inference, may have supplied the drugs for the other transactions (4/7 Tr. 57-58, 65) (emphasis added):

[I]t is not the government's case that the defendant was necessarily the main supplier. In fact the testimony that you heard, the expert testimony, it is unlikely that a main supplier would come and do a hand-to-hand transaction the first time that he met someone, and that makes sense. . . . But in order to put $5,000 in somebody's hand as Officer Stroud told you, the expert, they choose somebody that they trust, and they hand it to that person.

. . . A trusted man carried this much crack cocaine. Is he the main man? Maybe, maybe not.

. . . Is he the big man? Who knows. Was he someone trusted? Yes.

Most telling with respect to the scope of any conspiracy joined by Mr. xxxxxxx is the fact that the probation office recommended, the government agreed, and the court found, that Mr. xxxxxxx should be held responsible at sentencing only for the drugs involved in the final transaction. Under Mitchell, the drugs sold during the other transactions could not be attributed to him because they were not within "the scope of [his] conspiratorial agreement." 49 F.3d at 781. Although the government tried to claim that its concession was not a waiver of the argument that Mr. xxxxxxx was involved in the larger conspiracy, the court stated clearly its belief that the government accepted attribution of only the last transaction "because that's what the records support." (7/26p.m. Tr. 27-28, 34-35).

In rejecting Mr. xxxxxxx's post-trial motion for judgment of acquittal, the court took a different position: "Since there was sufficient evidence to tie defendant to [Richie and Moe], particularly evidence of defendant's direct participation in the largest sale of the alleged conspiracy (a sale that took place in the presence of alleged co-conspirator [Richie]) a reasonable trier of fact could have inferred that defendant was directly involved in, and connected to, the larger conspiracy to sell drugs prior to the May 10, 1991 sale." (A. 149). Mr. xxxxxxx suggests that, the court's finding at sentencing was correct and that no reasonable trier of fact could find that he "knew of the scope of the conspiracy, that [his] own benefits depended on the related activities of the co-conspirators, and that, so knowing, . . . he agreed to further the purposes of the conspiracy." Childress, 58 F.3d at 712.

Moreover, the variance between what was charged and what was proved was highly prejudicial to Mr. xxxxxxx. This case should have been about one drug transaction. See 4/3 Tr. Exc. 102 (court telling prosecutor at start of case, "it looks to me like you've got one transaction that is all encumbered with a lot of other things"). But the government failed to heed the trial court's request that it "use some sense here" and not put in proof on the other overt acts. (4/3 Tr. 10). Instead, the government spent much of the case proving six other transactions to which it could not link Mr. xxxxxxx, but which were highly prejudicial to him.

As a result, the trial became, not a case about whether Mr. xxxxxxx was the person who handed drugs to Officer Carter on one occasion, but the dramatic story of Carter's and Farmer's 5-week and $15,000 attempt to shut down a major crack distribution operation. Even worse, the operation was shown to be run by violent men who were anxious to get their hands on a truly frightening array of weaponry, but who, as far as the jury could tell, remained "unindicted." None of this proof was proper, let alone necessary. Although the government had originally charged Mr. xxxxxxx with the gun conspiracy (A. 17-21, 27-31), the prosecutor dropped that charge when he realized there was no proof linking Mr. xxxxxxx to it. (1/20 Tr. 30). He admitted that the gun deal was a "separate conspiracy" not involving Mr. xxxxxxx (4/7 Tr. 10). Nevertheless, he insisted on admitting a picture of the guns over objection (4/3 Tr. 46-47).

This was not a case in which the judicial economy involved in a joint trial of defendants involved in multiple conspiracies justifies some inevitable spillover between defendants. Because Mr. xxxxxxx was not tried with his alleged co-conspirators, there was no justification for putting in evidence of their separate drug and gun conspiracies to which he was never a party. This Court cannot be confident that the verdict against Mr. xxxxxxx in this otherwise "thin" case was not influenced by the jurors' desire to hold someone responsible for all the many collateral misdeeds put before them during the trial. Prejudice from the variance in proof requires reversal of all counts, not just the conspiracy count. See United States v. Coward, 630 F.2d 229, 231 (4th Cir. 1980).

II. THE TRIAL COURT SHOULD HAVE EXCLUDED THE DRUGS ALLEGEDLY DISTRIBUTED BY MR. xxxxxxx IN LIGHT OF THE GOVERNMENT'S FAILURE TO EXPLAIN THE 12-DAY GAP IN THE CHAIN OF CUSTODY.

A. Standard of Review

Because trial counsel consistently asserted Mr. xxxxxxx's right to inquire into the unexplained gap in the chain of custody (4/6 Tr. 172, 253-54, 257-58, 261-62; 4/10 Tr. 34-36), and objected to the admission of the evidence in light of the gap (4/6 Tr. 261-62), these errors are subject to full appellate review. A trial court's admission of evidence is reviewed for abuse of discretion. United States v. Ladd, 885 F.2d 954 (1st Cir. 1989). Limitations on cross-examination are reviewed for abuse of discretion and are reversible error where they result in prejudice to a defendant's substantial rights. Mitchell, 49 F.3d at 780. Because the infringement of the right to present a defense is a constitutional error, this Court must reverse unless the government can show that it was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). Cf. United States v. Anderson, 881 F.2d 1128, 1139 (1989) (Confrontation Clause violations subject to Chapman harmless error review).

B. The Jury's Note Shows That The Trial Court Should Have Excluded the Drug Evidence Or, At a Minimum, Permitted Defense Counsel To Fully Cross-Examine About The Chain of Custody.

Tangible evidence of a crime is admissible if it is shown to be in substantially the same condition as when the crime was committed. United States v. Lane, 591 F.2d 961, 962 (D.C. Cir. 1979); Gass v. United States, 416 F.2d 767, 770 (D.C. Cir. 1969); Fed. R. Evid. 901(a). The proponent has the "burden of demonstrating satisfactory precautions to preserve the identity and character of" the tangible evidence. Lane, 591 F.2d at 965-66. When the government is the proponent, a presumption of regularity attaches to evidence held by its officials. Id. at 962; Gass, 416 F.2d at 770. That presumption dissolves, however, where the defendant makes "'a minimal showing of ill will, bad faith, other evil motivation, or some evidence of tampering.'" Lane, 591 F.2d at 962 (emphasis added) (citation omitted). When the defendant has made such a showing, the chain of custody is called into question and the evidence is inadmissible unless the government establishes that acceptable precautions were taken to maintain the evidence in its original state. Id. The burden is on the government to show that "'possibilities of misidentification and adulteration [are] eliminated'" as "'a matter of reasonable probability.'" Id. (quoting Gass, 416 F.2d at 770). That burden was not met with respect to the drugs allegedly purchased from Mr. xxxxxxx.

Here, the defense demonstrated "some evidence of tampering." Lane, 591 F.2d at 962. Officer Stroud testified that MPD procedures call for the officer transferring drug evidence from the Narcotics Branch to the DEA laboratory to make sure that all the envelopes "are sealed properly, haven't been tampered with and that they all have a lab number." (4/6 Tr. 231). When those requirements are met, the transfer is made on "the next business day." (4/6 Tr. 230-31). "Most of the time," absent holidays or manpower constraints, the delivery from the branch to the lab is "made every day;" they try to go "ASAP." (4/6 Tr. 253).

Officer Stancil testified that he hand-delivered the box directly to the vault at the Narcotics Branch on May 10 because it is hard to fit a large item in the narcotics mailbox at the First District. (4/6 Tr. 117). (17) Yet the drugs were not taken to the DEA laboratory until May 22. Given that this timing was inconsistent with police procedures as described by Officer Stroud, the burden shifted to the government to eliminate the possibility of tampering as "a matter of reasonable probability." Lane, 591 F.2d at 962. The government made no attempt to do so, never calling any witness with personal knowledge to explain where the drugs were between May 10 and May 22 and why they were not transferred in accordance with standard procedure. Having left the inference of tampering unrebutted, the government should have been precluded altogether from introducing the drugs allegedly seized from Mr. xxxxxxx.

At a minimum, the district court erred in refusing to allow defense counsel to fully explore this aspect of Mr. xxxxxxx's defense. In Washington v. Texas, 388 U.S. 14, 19 (1967), the Supreme Court held that the "right to present a defense," is "a fundamental element of due process of law." See also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (precluding evidence relevant to defendant's defense "denied him a trial in accord with traditional and fundamental standards of due process"). A district court should allow "great latitude for cross-examination on the issues raised in direct examination." United States v. Stock, 948 F.2d 1299, 1302 (D.C. Cir. 1991). Here, even assuming the court did not abuse its discretion in admitting the evidence, the court's abrupt cutting off of defense questioning concerning the discrepancy in the chain of custody was a denial of due process that prevented the jury from doing its job of "consider[ing] and assess[ing] [the disputed evidence] in light of the surrounding circumstances." Lane, 591 F.2d at 963.

When Mr. xxxxxxx moved for a new trial on the ground that he was denied the opportunity to put on a defense concerning the chain of custody (A. 65-66), the trial court ruled that the government's objections to cross-examination of Officer Stroud were properly sustained because Officer Stroud was a "drug expert" who "did not have any personal knowledge about the handling of the evidence in this case" (A. 150). But Stroud was offered by the government, and accepted by the court, as an expert in "the police procedures in safeguarding drug evidence." (4/6 Tr. 226-27). Just as Officer Stroud frequently testifies as to the modus operandi of drug dealers even though he has no personal knowledge of the roles played in a particular case, (18) he was competent to testify, and did testify, as to the modus operandi of the police department in safeguarding drug evidence -- a subject beyond the ken of the average juror. Defense counsel should have been permitted to press Stroud with respect to those procedures and whether there was any explanation consistent therewith for a 12-day gap between seizure and receipt at the DEA laboratory. If Stroud had testified there was not, the drugs would most certainly have been inadmissible; even if admitted, a reasonable doubt would have been raised as to whether Mr. xxxxxxx had in fact distributed a controlled substance. Instead, the court precluded any further examination on any aspect of the chain of custody. See supra, at 14-15. Counsel was precluded even from inquiring into procedures that would have helped her discover evidence relevant to the chain of custody. Is there a document that reflects delivery of evidence to the Narcotics Branch? The court would not allow Officer Stroud to answer. (4/6 Tr. 254). Does the DEA have records indicating when evidence is received at the laboratory? The court would not allow the DEA chemist to answer and would not let counsel approach the bench. (4/6 Tr. 172). Stroud might well have recognized the initials of the Narcotics Branch officer who delivered the box to the DEA, but this question and any other relating to the chain of custody was put firmly off limits. Although defense counsel objected that she was not being permitted to present her defense, the court refused to allow counsel even to proffer her line of questioning. (4/6 Tr. 257-59).

The trial court's conclusion that any improper preclusion of cross-examination was harmless (A. 150) is belied by the only note received from the jury. By asking the very question defense counsel was trying to get to the bottom of, the jurors showed beyond question that the disallowed cross-examination was important to their verdict. Cf. Coward, 630 F.2d at 231 (jury's question during deliberations exhibiting confusion as to evidence connected to each defendant demonstrated actual prejudice caused by variance between indictment and proof). Given the jury's explicit inquiry into the area that counsel was precluded from pursuing, the government cannot meet its burden of showing that the error was harmless beyond a reasonable doubt.

III. MR. xxxxxxx WAS UNFAIRLY PREJUDICED BY DETECTIVE CENCICH'S TESTIMONY THAT HE RECOGNIZED APPELLANT "FROM A PRIOR INVESTIGATION."

A. Standard of Review

Fed. R. Evid. 403 provides for exclusion of evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." The Rule 403 balance is reviewed for grave abuse of discretion. Mitchell, 49 F.3d at 776.

B. The Gratuitous Testimony From a Gang Task Force Officer That He Had Seen Photographs of Appellant in Connection With a Prior Investigation Was Substantially More Prejudicial Than Probative.

Detective Cencich testified about his 1994 arrest of Mr. xxxxxxx on the outstanding 1991 bench warrant. After informing the jury that he was assigned to the "Criminal Investigation Division, Violent Crime, Gang Task Force, Intelligence Branch," he testified that he knew the defendant by the name Jose de la Espada "[f]rom a prior investigation." (4/6 Tr. 207-08). Defense counsel immediately approached the bench to object:

This is highly prejudicial. This gentleman has no prior record, he's just got up and described this guy as a narcotics officer, then he's having him talk about some prior investigation. He's trying to make improper reference --

The Court: Objection is overruled.

(4/6 Tr. 208). The prejudice from this "other crimes" testimony, which was also raised in Mr. xxxxxxx's new trial motion (A. 61 n.7), far outweighed any probative value and caused irreparable harm to his defense, particularly his misidentification defense to the drug charges. (19)

First, the testimony had essentially no probative value. "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." Mitchell, 49 F.3d at 776. Here, the testimony was ostensibly designed to explain how Detective Cencich knew Mr. xxxxxxx was the person subject to the arrest warrant. But it was completely unnecessary for that purpose. The defense had offered to stipulate to the facts related to the bail-jumping count. See United States v. Dockery, 955 F.2d 50, 54 (D.C. Cir. 1992) ("'a proper rule 403 balancing analysis will incorporate some assessment of the need for the allegedly prejudicial information in light of a valid stipulation"), quoting United States v. Bass, 794 F.2d 1305, 1312 n.6 (8th Cir.), cert. denied, 479 U.S. 869 (1986); United States v. Crowder, No. 92-3133, and United States v. Davis, No. 93-3059 (argued in banc Sept. 21, 1995, on question whether government must generally accept stipulation to element it seeks to prove through prejudicial "other crimes" evidence).

Even aside from the offer to stipulate, the government did not need this evidence to prove its case. The fact that appellant had been investigated by the Gang Task Force was probative of no element of the charges. See Fed. R. Evid. 404(b) ("other crimes" evidence must be relevant to some issue other than the defendant's bad character). If the government was concerned that the jury would question how Cencich recognized appellant as a person subject to a bench warrant, he could simply have stated that he had seen a photograph of him (which could have been the mugshot taken in connection with this case), without the additional gratuitous reference to a prior investigation.

To the extent the prior investigation testimony had any probative value, it was substantially outweighed by the tremendous prejudice inherent in it. The knowledge that appellant had been investigated in another case -- apparently for a violent or gang-related crime -- would have irreparably damaged him in the eyes of the jury. His defense on the drug counts was misidentification -- that he was not involved with Moe and Richie (and their guns and drugs) but was an innocent bystander at the wrong place at the wrong time when Carter returned to try to find the man on the porch. The jurors's willingness to entertain a reasonable doubt as to Carter's highly impeached identification surely disappeared when they learned that this was not the first time Mr. xxxxxxx had attracted police attention. Likewise, the fact that Mr. xxxxxxx had apparently been associated with criminal activity in the past undermined the inference that his failure to appear at his arraignment was not willful.

The evidence elicited from Cencich served no purpose but to smear Mr. xxxxxxx with an image of gangs and guns so as to unfairly bolster the inference that he did in fact know and conspire to further the drug and gun operation of Moe, Richie and Bird. Its admission requires a new trial.

IV. THE EVIDENCE OF BAIL-JUMPING WAS INSUFFICIENT AS A MATTER OF LAW.

A. Standard of 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 on each element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

B. The Evidence Was Insufficient For The Jury To Find Beyond A Reasonable Doubt That Mr. xxxxxxx Was Released Under the Federal Bail Statute, That He Failed To Appear "As Required," And That He Knew When and Where to Appear and Failed To Do So Willfully.

The federal bail statute (Chapter 207 of Title 18) provides criminal penalties for "[w]hoever, having been released under this chapter knowingly . . . fails to appear before a court as required by the conditions of release." 18 U.S.C. 3146(a)(1). In order to prove a violation of 3146, the government was required to prove beyond a reasonable doubt that the defendant:

(1) was released pursuant to that statute,

(2) was required to appear in court,

(3) knew that he was required to appear,

(4) failed to appear as required, and

(5) was willful in his failure to appear.

Weaver v. United States, 37 F.3d 1411, 1412-13 (9th Cir. 1994). Here, the government did not present sufficient evidence of any element but the second.

1. "Released Under This Chapter"

"The Act contemplates that one must have been at liberty pursuant to the Bail Reform Act when he failed to appear." United States v. Castaldo, 636 F.2d 1169, 1171 (9th Cir. 1980) (discussing similar predecessor statute). Here, the government failed to prove that Mr. xxxxxxx was released under the federal bail statute as opposed to the local District of Columbia bail statute.

Mr. xxxxxxx was released in D.C. Superior Court by a Superior Court judge. The release order he signed is a standard D.C. Superior Court form captioned "Superior Court of the District of Columbia." (A. 96). The federal bail statute requires all release orders to "advise the person of . . . the penalties for violating a condition of release." 18 U.S.C. 3142(h)(2)(a). Yet the release form signed by Mr. xxxxxxx warned him on the back only of the penalties for failing to appear when released under the D.C. bail statute:

FAILURE TO APPEAR: For any failure to appear as required before a judge or other judicial officer, you shall be subject to prosecution and subject to the following penalties.

(IF FELONY CHARGE) A fine of not more than $5000 and imprisonment for not less than one year and not more than 5 years.

(A. 114). In fact, if he had been released under the federal statute, he would have been subject to a fine of up to $250,000 (PSR 64, citing 18 U.S.C. 3571(b)(3)) and "imprisonment for not more than ten years" or both. 18 U.S.C. 3146(b)(1)(A)(i).

The district court rejected this argument (A. 154-55), holding that Judge Wolf had been acting as a federal magistrate for purposes of establishing release conditions, citing 18 U.S.C. 3041 (emphasis added):

For any offense against the United States, the offender may, by any . . . judge of a supreme or superior court. . . of any state where the offender may be found, and at he expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title . . .

However, the "definitions" section of Chapter 207, 18 U.S.C. 3156, indicates that 3041 does not include District of Columbia judges, as opposed to state judges:

As used in sections 3141-3150 of this chapter . . . the term "judicial officer" means, unless otherwise indicated, any person or court authorized pursuant to section 3041 of this title . . . to detain or release a person before trial . . . in a court of the United States, and any judge of the Superior Court of the District of Columbia.

Thus, while 3041 itself does not authorize D.C. Superior Court judges to release defendants under Chapter 207, Chapter 207 would grant that power directly if it authorized release by any "judicial officer." It does not. Instead, the general authorization for release pending trial under Chapter 207, relied upon by the government below (A. 133), provides:

(a) Pending Trial -- A judicial officer authorized to order the arrest of a person under section 3041 of this title before whom an arrested person is brought shall order that such person be released or detained, pending judicial proceedings, under this chapter.

18 U.S.C. 3141 ("Release and Detention Authority Generally").

Thus, the term "judicial officer" in 3141, the section authorizing release pending trial "under this chapter," is not used in the broad sense given in the definitions section ( 3156). That definition (which includes both judges with 3041 authority and D.C. Superior Court judges) applies only "unless otherwise indicated." 18 U.S.C. 3156. Section 3141 otherwise indicates by limiting the power to release defendants "under this chapter" only to judicial officers with 3041 authority. Therefore, Judge Wolf could not have released Mr. xxxxxxx "under this chapter" within the meaning of 3146.

Even if this Court concludes that Judge Wolf could have released Mr. xxxxxxx under the federal bail statute, the record in this case, including the warnings given regarding failure to appear, indicates he did not in fact do so. In United States v. Bodiford, 753 F.2d 380 (5th Cir. 1985), the Fifth Circuit reversed where the government failed to prove this element. In Bodiford, the defendant voluntarily appeared for his arraignment, after which the court released him under the mistaken belief he had already been released on bond. When the defendant failed to appear for trial, he was convicted under the predecessor to 3146. The Fifth Circuit reasoned that, although his conduct deserved punishment, "it is elementary that a defendant may be convicted only of an offense defined by statute" and that the government had not proved that the defendant had ever been released under the bail statute. 753 F.2d at 382.

2. Failed to Appear "As Required By The Conditions of Release"

The government also failed to prove that Mr. xxxxxxx failed to appear "as required by the conditions of release." 18 U.S.C. 3146(a)(1). The conditions of Mr. xxxxxxx's release were that he was to report on May 13, 1991, to "US DIST CT" at 11:00 a.m. Unlike the release orders in many failure to appear cases, Mr. xxxxxxx was not instructed to appear for a particular proceeding, before a particular judge, or in a particular courtroom. He was simply told to come to "US DIST CT" at a particular time. There is no evidence whatsoever that Mr. xxxxxxx was not at "US DIST CT" at that time. Indeed, the evidence was that he reported early and signed in at the Pretrial Services office in the federal courthouse.

The district court's order denying the post-trial motion for judgment of acquittal on Count 3 is wrong when it states that "[a]fter [signing in at 9:04 a.m.], defendant left the courthouse and failed to return." (A. 153). There was no such evidence. Likewise, the government put on no evidence that would support the court's statement that "[h]e was not present anywhere in the courthouse at 11 a.m." (A. 153). The court below misread the record. There is no evidence that Mr. xxxxxxx did not appear as he was required by the conditions of his release.

Indeed, it appears that the only reason this charge went forward was that the prosecutor was not aware until midway through the trial that Mr. xxxxxxx had in fact appeared "as required." He incorrectly told the jury in opening, "You'll hear evidence that he called in, but that he never physically came in as he was required to." (4/3 Tr. Exc. 96). The next day, when defense counsel informed the court that that was not accurate and inquired as to the prosecutor's good faith basis for that statement, the prosecutor acknowledged that Mr. xxxxxxx had in fact been physically present but told the court (again incorrectly): "Mr. xxxxxxx checked in with Pretrial Services, was told to come to the Magistrate's office for his arraignment, and he never showed." (4/4 Tr. 2) (emphasis added). The prosecutor therefore stated his intention "to proceed on the BRA." (4/4 Tr. 3). The court denied a defense motion for mistrial. (4/4 Tr. 3). Later, of course, Ms. Madole testified that her records indicated Mr. xxxxxxx had signed in when she had been out of the office and, therefore, had not been told where and when to go.

The government's proof, which turned out to be entirely different than what the prosecutor anticipated at the time of opening, was wholly inadequate on this element.

3. Knowledge and Willfulness

Finally, the government failed to prove that Mr. xxxxxxx knew where and when to appear and willfully failed to do so. These elements are interrelated. See 4/10 Tr. 26-27 (court instructing jury: "If you find beyond a reasonable doubt that the defendant had received notice of the date and place of his appearance before the court or judicial officer and that he failed to appear as required, then you may infer that his failure to appear was willful"). Generally, one cannot willfully fail to do what he does not know is required. See United States v. Lloyd, 868 F.2d 447, 452 (D.C. Cir. 1989) (where defendant "received notice of the date, time, and place of his preliminary hearing" the jury "could reasonably have concluded that [he] willfully failed to appear even though he knew he had a duty to do so"). Cf. Smith v. United States, 583 A.2d 975, 979 (D.C. 1990) (willfulness requires proof "that the defendant received timely notice of where he was required to be") (interpreting similar D.C. statute).

Although the government is not required to prove the defendant's actual knowledge of the time and place he is due "[w]hen a defendant engages in a course of conduct designed to avoid notice," Weaver, 37 F.3d at 1413, here there was no evidence that Mr. xxxxxxx engaged in such a course of conduct. To the contrary, the evidence was that Mr. xxxxxxx appeared at the Pretrial Services offices in Room 1413 of the U.S. District Courthouse at 9:04 a.m. and signed in as required. There was no evidence he was not still in the courthouse at 11:00 and no evidence that the Pretrial Services office was open at that time. There was no evidence that he did not call the Superior Court telephone number on the release order. Even viewing the evidence in the light most favorable to the government, the reason he did not know where to go once he got to "US DIST CT" was not that he "avoid[ed] notice" but that no one told him in Superior Court on Saturday and no one was present to tell him when he appeared at the Pretrial Services office in federal court on Monday. Because there was no evidence that Mr. xxxxxxx avoided notice, the government was required to prove it. (20)

There is simply no evidence that Mr. xxxxxxx knew he was supposed to be in Magistrate Robinson's courtroom at 1:30 p.m. For all this Spanish-speaking defendant (21) knew, the requirements imposed by the release form (placement in a drug program, reporting to Pretrial Services immediately upon release, refraining from criminal activity, and reporting to US DIST CT on Monday), represented the resolution of his case. A reasonable juror could have inferred that someone told Mr. xxxxxxx to go to Room 1413 in the federal courthouse, but there was no evidence -- habit or otherwise -- that he was told he was to be arraigned and must go there for a courtroom assignment.

In Smith, the D.C. Court of Appeals reversed a failure-to-appear conviction where the defendant signed a release order telling him to reappear for a status hearing before Judge Queen in Courtroom 19, but the hearing was held instead in Courtroom 25. The court held that, "[w]hile a defendant undoubtedly has an obligation to act diligently with respect to returning as required for a further court proceeding, the notice-to-return form that appellant received did not, of itself, provide appellant with sufficiently accurate or complete notice of the location of the next scheduled proceeding to guide his efforts to reappear." Id. at 979. In order to prove willful failure to appear, the government must present "either direct evidence that appellant was personally informed of where his case was to be called, or comparable circumstantial evidence, e.g., evidence of what occurred in or around Courtroom 19 on July 18, 1988, to notify persons where Judge Queen . . . would hold the scheduled hearing." Id. The court held that habit evidence concerning the posting of courtroom change notices is admissible for this purpose but that the habit testimony in Smith had been admitted without adequate foundation. See also Bolan v. United States, 587 A.2d 458 (D.C. App. 1991) (reversing under Smith).

Here, the government presented no evidence that Mr. xxxxxxx was personally told to go Magistrate Robinson's courtroom at 1:30 p.m. and the government did not even attempt to present habit testimony as circumstantial evidence of such notice. (4/6 Tr. 86-87). Ms. Madole did not claim that she put a notice on the door instructing defendants what to do when the office is closed, either on May 13 in particular, or as a matter of general habit. In the absence of any evidence that Mr. xxxxxxx knew where to report, his conviction for knowing and willful failure to appear cannot stand. V. THE SENTENCING COURT MISAPPLIED THE GUIDELINES IN REFUSING TO GRANT MR. xxxxxxx A DOWNWARD DEPARTURE.

A. Standard of Review.

This Court must remand for resentencing if it "determines that the sentence . . . was . . . imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. 3742(f)(1). Under the Sentencing Guidelines, "purely legal questions are reviewed de novo." United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). "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).

B. The District Court Erred As a Matter of Law in Rejecting The Severity of Confinement Conditions for Deportable Aliens As a Mitigating Circumstance Under the Catch-All Departure Provision.

The sentencing court in this case was aware of this Court's decision in United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), and discussed it with counsel. The Court, however, did not adhere to its holding.

In Smith, this Court held that the more severe conditions of confinement to which deportable aliens are subject is a "mitigating circumstance" that may justify a downward departure under 18 U.S.C. 3553(b). Of course, such a departure will not always be warranted. Rather, the Court held in Smith that "as the defendant's status as a deportable alien is by no means necessarily unrelated to his just deserts, even a court confident that the status will lead to worse conditions should depart only when persuaded that the greater severity is undeserved." 27 F.3d at 655.

Here, although recognizing Mr. xxxxxxx "would otherwise maybe be due [some departure] because he's a first-time convicted individual or because of his stature as a deportable alien" (7/26a.m. Tr. 14), the government argued that, for a variety of reasons, Mr. xxxxxxx was someone who did not deserve a departure. The court's decision not to depart, however, was not based on any of those reasons; it did not exercise its discretion and conclude that the "greater severity" due to deportable status was not "undeserved" in this particular case. Smith, 27 F.3d at 655. Rather, the court's rationale in denying the departure was essentially a blanket conclusion, applicable to all deportable aliens, that is wholly at odds with this Court's analysis in Smith (9/13 Tr. 13) (emphasis added):

I'm persuaded that there was an assumption of risk when he came to the United States illegally, (22) and I'm not going to authorize a departure, simply because that might make him -- make prison life more difficult for him than it would be if he were legally an alien or citizen.

The district court's view that deportable status is not a mitigating circumstance "simply because that might . . . make prison life more difficult" is in direct conflict with this Court's holding in Smith that, although unrelated to culpability, the greater severity of confinement for a deportable alien is a mitigating factor not adequately considered by the Sentencing Commission. Failing the other relief sought in this appeal, this Court should remand for the sentencing court to consider in accordance with Smith whether the greater severity is undeserved in this particular case.

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment below and remand to the district court for entry of a judgment of acquittal (or in the alternative a new trial) on Counts 1 and 3 and a new trial on Count 2. If Count 3 is dismissed but a new trial is not granted, appellant requests a remand for resentencing to eliminate the obstruction of justice adjustment applied to the drug counts. Even if all counts are affirmed, the case should be remanded for resentencing in accordance with Smith.



Respectfully submitted,





A.J. KRAMER

FEDERAL PUBLIC DEFENDER



_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Gary xxxxxxx







CERTIFICATE OF LENGTH

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



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender







CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Gary xxxxxxx have been served by mail addressed to: Assistant United States Attorney John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 10th day of June, 1996.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender



1. The three co-defendants were members of the same family and lived together at 1803 4th Street. (4/5a.m. Tr. 12; 4/5p.m. 35-36). Appellant was no relation.

2. "A." refers to pages of the Appendix filed with this brief. All transcript date references are in 1995. "1/9 Tr. Exc." refers to the January 9, 1995, transcript excerpt containing Officer Carter's supression hearing testimony. "4/3 Tr. Exc." refers to the excerpt containing voir dire and opening statements.

3. The superseding indictment was erroneously assigned a new case number: No. 91-593. On October 31, 1991, the district court ordered the two cases joined under the original number, No. 91-338, but pleadings continued to be filed under the new number. After Mr. xxxxxxx's rearrest in 1994, the court ordered the October 17, 1991, indictment to be filed as a superseding indictment in the original case and dismissed No. 91-593. (A. 37-38).

4. Multiple officers testified that they were in the chain of custody for the drugs purchased in these six transactions.

5. Carter testified that he did not have the full $7000 because $4830 was all there was in the vice fund. (4/3A Tr. 63).

6. Officer Farmer and Moe were parked around the corner and could not see the area in front of the building. (4/3A Tr. 58; 4/6 Tr. 91, 93).

7. Although Carter had testified at the identification hearing that he did not recall the man having any accent (4/4 Tr. 44-47; 1/9 Tr. Exc. 40-41), he claimed at trial that, after a witness conference the week before, he had suddenly recalled telling Farmer at the time of the transaction that he thought the person was Panamanian because he spoke like an Army friend of Carter's who was from Panama. (4/3A Tr. 63-66, 4/4 Tr. 47-50).

8. Farmer could see the conversation between Richie and Carter on the corner and heard Carter say, "I just don't like dealing with you people." (4/6 Tr. 92-93).

9. Farmer, on the other hand, testified that he did not see the contents of the bag during the ride back because Carter immediately placed the bag in the back seat (4/6 Tr. 94-95, 103-04), and that

there was no field test done in the car (4/6 Tr. 104). When defense counsel attempted to argue this discrepancy in closing, the court repeatedly accused her before the jury of mischaracterizing the evidence and said, "[f]orget the field test." (4/7 Tr. 68-70).

10. According to Carter, approximately eight other officers, some in uniform, were running up the steps behind him. (4/5 a.m. Tr. 41-42, 44). Retired Sergeants Hickey and Bailey, testified however, that they were the first to arrive after Carter and Farmer, that Carter and Farmer were already apprehending Mr. xxxxxxx on the front steps by the time they arrived, and that no uniformed officers arrived for 2-3 minutes thereafter. (4/5a.m. Tr. 84-85, 88-89, 93-97; 4/5p.m. Tr. 16-17, 33-34). Farmer testified that there was a uniformed officer right behind him and Carter as they ran up the steps and that Bailey and Hickey did not arrive for 3-5 minutes. (4/6 Tr. 97, 108-09).

11. Later, defense counsel objected when the government surprised her by attempting to introduce $600 in currency allegedly recovered from Mr. xxxxxxx's person by Sergeant Hickey (money the government proffered at the bench did not match the MPD funds given to the man on the porch). (4/5p.m. Tr. 18-23). After defense counsel represented that she had not been shown any money in discovery (see also 4/5p.m. Tr. 40-41), and argued that it was "totally prejudicial without any probative value," the prosecutor agreed to withdraw the exhibit and the court vacated its overruling of counsel's objection. (4/5p.m. Tr. 23-24). When the prosecutor nevertheless proceeded to ask the witness how much money had been recovered, and the witness answered, "a little over six hundred dollars," defense counsel again objected and the court ordered the jury to "do the mental gymnastic of disregarding . . . the testimony about six hundred dollars being recovered." (4/5p.m. Tr. 24).

12. Appellant's true name is Jose de la Espada. (4/3A Tr. 19). He gave the name Jose Gonzales at the time of his initial arrest in this case. (4/3A Tr. 20; 4/5p.m. Tr. 26; 4/6 Tr. 111-12). This case was charged under the name Gary xxxxxxx because that is the name that was given during a previous arrest that was no-papered and so that is the name shown in police records as his true name. (4/3A Tr. 19-20). Defense counsel attempted to elicit the fact that Mr. xxxxxxx was an undocumented alien as a possible explanation for his use of aliases but the court sustained the government's objection. (4/6 Tr. 213).

13. Officer Picciano obtained three prints from the oatmeal canister and one print from the package of noodles. (4/6 Tr. 139, 142). MPD fingerprint examination Officer Ruby Brown testified for the defense that those fingerprints were sufficiently clear for comparison purposes but did not match Mr. xxxxxxx's fingerprints. (4/6 Tr. 275-77).

14. Although the prosecutor acknowledged that the driver's license had not been produced in discovery, he sought to introduce it after defense counsel elicited from Cencich's partner that the arrest report did not mention that the defendant had given the name Gregory Leaper. The court admitted the identification over objection. (4/6 Tr. 128-31, 218-23).

15. The jurors obviously meant to reference "5/10/91" and "5/22/91."

16. This case is distinguishable from United States v. Childress, 58 F.3d 693, 714 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 825 (1996). In Childress, this Court rejected the argument that, even assuming the defendant was the person called "Captain" who made two cocaine deliveries, there was insufficient evidence that he had joined the conspiracy: [T]he same "Captain" made two drug deliveries of 50-kilogram magnitude to the Edmond organization. Two deliveries of this magnitude suggest a continuity of relationship between Childress and the Edmond organization and support the inference that Childress knew that the organization to which he was delivering such a sizeable amount of drugs must involve a substantial distribution network.Id. (emphasis in original). Unlike the two deliveries of a total of 100,000 grams in Childress, this case involved a single distribution of 219.7 grams (only 0.2% as much). This one-time distribution is not sufficient to support an inference of conspiracy.

17. Normally, drug evidence is placed first in a mailbox at the district station. The midnight courier from the Narcotics Branch then collects the evidence from all districts and takes it to the Narcotics Branch, from which it is then transferred to the DEA laboratory. (4/6 Tr. 229-31, 260).

18. For example, the prosecutor gave Stroud a detailed hypothetical involving purchases of drugs from players A, B, and C, who ultimately introduced the buyers to player D. Stroud opined that after five purchases of particular quantities from the first group, "I feel that the trust is there" to move up to another quantity level and explained "Mr. D's role in relation to A, B, and C." (4/6 Tr. 244-46).

19. The court performed no Rule 403 balancing and did not permit counsel to complete her objection. This Court has not reversed for failure to make an on-the-record balancing "if the considerations germane to balancing probative value versus prejudicial effect are readily apparent from the record." United States v. Graham, No. 93-3217, slip op. at 9 (D.C. Cir. May 21, 1996) (citations omitted). Here, unlike in Graham, they are not.

20. The court therefore also erred in refusing Mr. xxxxxxx's request (based on the Smith case) that the court include as an element of the bail-jumping offense that defendant timely received notice that he was to report in a courtroom and at a time other than listed on the notice-to-return slip. (4/7 Tr. 22-23; 4/10 Tr. 26-28).

21. Mr. xxxxxxx speaks some English but needed an interpreter for trial. (4/3 Tr. Exc. 70-71). The Pretrial Services Agency now provides release forms in Spanish. (4/6 Tr. 187).

22. This finding was clearly erroneous. According to the prosecutor, Mr. xxxxxxx entered the United States on a 6-month visitor's pass in May 1986, but failed to leave when it expired. (7/26p.m. Tr. 31-32). Therefore, the court's refusal to depart is also reviewable due to this mistake of fact. See United States v. Sammoury, 74 F.3d 1341, 1343-35 (D.C. Cir. 1996).