CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASE
Pursuant to Rule 28(a)(1) of the General Rules of this Court,
appellant hereby states as follows:
A.Parties and Amici: The parties in this Court are the defendant-appellant, Tyrone xxxxxxx, and the plaintiff-appellee, United States of America. In the district court, Mr. xxxxxxx was joined with two co-defendants: Mr. Donnell xxxxxxx and Mr. Ronald B. xxxxxxx. There are no intervenors or amici in this Court, and there were none in the district court.
B.Rulings Under Review: In this appeal, the defendant first challenges the sufficiency of the evidence to convict Mr. xxxxxxx of count one in the indictment. The trial court denied Mr. xxxxxxx's motion for judgment of acquittal on this ground at the close of the government's case (APP 147a) (5/24/95: 108), and, again, at the close of all of the evidence. (APP 179-183)(5/25/95: 181-185).
Second, Mr. xxxxxxx also challenges the trial court's instruction to the jury regarding aiding and abetting. The defense objected to the instruction in writing (APP 242-249) and in open court, (APP 193-194, 203-217)(5/25/95: 193-194; 5/31/95: 8-22). The court overruled the defendant's objections (APP 190, 203-217)(5/30/95: 11; 5/31/95: 8-22), and gave the instruction to the jury (APP 220-223)(5/31/95: 50-53).
Third, Mr. xxxxxxx submits that a mistrial should have been declared when the lead detective testified to prejudicial hearsay from Mr. xxxxxxx's mother. The defendant's motion for a mistrial was denied by the trial court. (APP 107-118)(5/16/95: 115-126).
Fourth, Mr. xxxxxxx argues that a new trial should have been ordered, or at the very least an evidentiary hearing held, because of the jury foreman's apparently untruthful answer to the Ridley question. This relief was requested in a written post-trial motion which was denied by the trial court in a written memorandum opinion. (APP 258-265).
C:Related Cases: This case has not been before this Court or any other court previously. Mr. xxxxxxx's co-defendant, Ronald B. xxxxxxx, was sentenced on September 13, 1995, and has not appealed his conviction or sentence. Mr. xxxxxxx's other co-defendant, Donnell xxxxxxx, is scheduled for sentencing on May 15, 1996. [check date of xxxxxxx's sentencing]
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASE i
TABLE OF AUTHORITIES ix
ISSUES PRESENTED x
STATEMENT OF THE CASE 2
STATEMENT OF FACTS 4
A.The Missing Documents 4
B.The Trial Evidence. 5
C.The Mistrial Motion Based on the Hearsay Introduced Through Detective Bell 10
D.The Jury Instructions and Mr. xxxxxxx's Objections to Them 12
1.The Aiding and Abetting Instruction. 13
2.The Intent Instruction. 16
E.The Prosecution's Closing Argument and the Court's Concerns 16
F.The Undisclosed Criminal Charge Against the Foreman 18
SUMMARY OF ARGUMENT 19
I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT MR. xxxxxxx'S CONVICTION ON COUNT ONE AS A PRINCIPAL OR AS AN AIDER AND ABETTOR 22
A. STANDARD OF REVIEW 22
B.IN ORDER TO ESTABLISH CONSTRUCTIVE POSSESSION, THE EVIDENCE MUST SHOW THAT MR. xxxxxxx WAS IN A POSITION TO OR HAD THE RIGHT TO EXERCISE DOMINION AND CONTROL OVER THE COCAINE BASE 22
C.THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT MR. xxxxxxx CONSTRUCTIVELY POSSESSED THE DRUGS FOUND IN THE HOUSE 25
D.THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT MR. xxxxxxx AIDED AND ABETTED MR. xxxxxxx'S POSSESSION WITH INTENT TO DISTRIBUTE COCAINE BASE 28
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY WRONGLY INFORMING THE JURY THAT THE AIDER AND ABETTOR NEED NOT HAVE THE SAME CRIMINAL INTENT AS THE
A.THE TRIAL COURT'S AIDING AND ABETTING INSTRUCTION WAS INCORRECT BECAUSE IT EXPRESSLY INFORMED THE JURY THAT IT DID NOT NEED TO FIND A CRITICAL ELEMENT OF THE OFFENSE 31
1. Standard of Review 31
2.The aiding and abetting instruction directed the jury to disregard the specific intent requirement in the statute 32
B.This error requires a reversal of Mr. xxxxxxx's conviction 34
1.Where, as here, the instructional error removes from the jury's purview an element of the offense, the traditional harmless error analysis is inapplicable and the conviction should be reversed 34
2.Reversal is similarly required even if harmless error review is applied in this case 35
III.THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT A MISTRIAL DUE TO THE PREJUDICIAL HEARSAY TESTIMONY ADMITTED THROUGH DETECTIVE BELL 43
A. Standard of Review 43
B.The prejudice flowing from the hearsay evidence was substantial and was not cured by the court's curative instruction 44
IV.THE JURY FOREMAN'S FAILURE TO DISCLOSE HIS PRIOR CRIMINAL CHARGE ENTITLED MR. xxxxxxx TO A NEW TRIAL, OR IN THE ALTERNATIVE, TO A POST-TRIAL EVIDENTIARY HEARING 45
A.Standard of Review 46
B.Mr. xxxxxxx had a right to an impartial jury 46
C.Mr. Roger's failure to truthfully respond to the Ridley question suggests that he was not
CERTIFICATE OF LENGTH 49
CERTIFICATE OF SERVICE 50
CERTIFICATE OF SERVICE 50
TABLE OF AUTHORITIES
Brady v. Maryland,
373 U.S. 83 (1963)3
Chapman v. California,
386 U.S. 18 (1976)36
Francis v. Franklin,
471 U.S. 307 (1985)41
Grer v. Miller,
483 U.S. 756 n.8 (1987)45
McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548 (1984)46
Roy v. Gomez, F.3d ,
1996 WL 172841, 3-4 (9th Cir., April 15, 1996)35
Smith v. Phillips,
455 U.S. 209 (1982)48
Sullivan v. Louisiana,
508 U.S. 275 S.Ct. 2078, 2081 (1993)34
United States v. Alston,
551 F.2d 315 (D.C. Cir. 1976)36, 42
United States v. Bailey,
416 F.2d 1110 (D.C. Cir. 1969)40
United States v. Batt,
811 F. Supp. 625 (D. Kan. 1993)33
United States v. Boney,
977 F.2d 624 (D.C. Cir. 1992)21, 47
United States v. Bonham,
477 F.2d 1137 (3d Cir. 1973)24
United States v. Campbell,
702 F.2d 262 (D.C. Cir. 1983)29
United States v. Childress,
58 F.3d 693 (D.C. Cir. 1995)42
United States v. Clarke,
24 F.3d 257 (D.C. Cir. 1994)43
United States v. Eccleston,
961 F.2d 955 (D.C. Cir. 1993)passim
United States v. Edelin,
996 F.2d 1238 (D.C. Cir. 1993),
cert. denied, 114 S. Ct. 895 (1994)24
United States v. Fennell,
53 F.3d 1296 (D.C. Cir. 1995)22, 32
United States v. Ford,
993 F.2d 249 (D.C. Cir. 1993)23
United States v. Gaudin,
515 U.S. , 115 S.Ct. 2310 (1995)34
United States v. Glenn,
64 F.3d 706 (D.C. Cir. 1995)37
United States v. Grayson,
685 F. Supp. 279 (D.D.C. 1988)24
United States v. Hamblin,
911 F.2d 551 (11th Cir. 1990)
cert. denied, 500 U.S. 943 (1991)33
United States v. Jones,
909 F.2d 533 (D.C. Cir. 1990)36
United States v. Lafayette,
983 F.2d 1102 (D.C. Cir. 1993)46
United States v. Martiarena,
955 F.2d 363 (5th Cir. 1992)33
United States v. Martin,
475 F.2d 943 (D.C. Cir. 1973)36
United States v. McKinley,
70 F.3d 1307 (D.C. Cir. 1995)29
United States v. Monroe,
990 F.2d 1370 (D.C. Cir. 1993)30
United States v. Nell,
526 F.2d 1223 n.8 (5th Cir. 1976)48
United States v. North,
910 F.2d 843 (D.C. Cir. 1990)
cert. denied, 500 U.S. 941 (1991)32, 46, 47
United States v. Pardo,
636 F.2d 535 (D.C. Cir. 1980)23, 27, 28
United States v. Perkins,
748 F.2d 1519 (11th Cir. 1984)48
United States v. Rawlings,
73 F.3d 1145 (D.C. Cir. 1996)42
United States v. Rhone,
864 F.2d 832 (D.C. Cir. 1989)36, 41
United States v. Salamanca,
990 F.2d 629 (D.C. Cir.),
cert. denied, 114 S. Ct. 337 (1993)passim
United States v. Scott,
854 F.2d 697 (5th Cir. 1988)48
United States v. Stein,
37 F.3d 1407 (9th Cir. 1994)41
United States v. Thorne,
997 F.2d 1504 (D.C. Cir.),
cert. denied, 114 S. Ct. 568 (1993)22, 24
United States v. Washington,
12 F.3d 1128 (D.C. Cir. 1994)29
United States v. Watkins,
519 F.2d 294 (D.C. Cir. 1975)23
21 U.S.C. §§ 841, et seq.
18 U.S.C. § 2
I.WHETHER THE EVIDENCE WAS SUFFICIENT TO CONVICT MR. xxxxxxx OF POSSESSION WITH INTENT TO DISTRIBUTE COCAINE BASE OR AIDING AND ABETTING WHERE NO RATIONAL JURY COULD HAVE FOUND THAT MR. xxxxxxx HAD DOMINION AND CONTROL OVER THE DRUGS FOUND IN THE HOUSE AND OR THAT HE WAS AN ACTIVE PARTICIPANT IN THE DRUG DEALING THAT WAS OCCURRING AT THAT HOUSE?
II.WHETHER THE TRIAL COURT'S INCORRECT JURY INSTRUCTION THAT AN AIDER AND ABETTOR NEED NOT HAVE THE SAME CRIMINAL INTENT AS THE PRINCIPAL REQUIRES REVERSAL WHERE THE EVIDENCE OF GUILT WAS SLIGHT, WHERE THERE WAS A LIKELIHOOD THAT THE JURY CONVICTED MR. xxxxxxx BASED MERELY ON HIS PHYSICAL PRESENCE AND ADMITTED KNOWLEDGE OF THE DRUG ACTIVITY, AND WHERE OTHER PORTIONS OF THE INSTRUCTION AND THE GOVERNMENT'S CLOSING ARGUMENT ONLY INCREASED THE LIKELIHOOD OF JUROR CONFUSION ON THIS ISSUE?
III.WHETHER THE DISTRICT COURT SHOULD HAVE DECLARED A MISTRIAL WHEN A POLICE OFFICER TESTIFIED TO HEARSAY FROM MR. xxxxxxx'S MOTHER WHICH SUGGESTED THAT HIS MOTHER BELIEVED THAT MR. xxxxxxx WAS GUILTY OF THE CHARGED CRIME?
IV.WHETHER THE DISTRICT COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION FOR A NEW TRIAL, OR IN THE ALTERNATIVE FOR AN EVIDENTIARY HEARING, WHEN IT WAS DISCOVERED THAT THE FOREMAN OF THE JURY RESPONDED UNTRUTHFULLY TO THE RIDLEY QUESTION DURING VOIR DIRE?
STATUTES AND REGULATIONS
Pertinent statutes are as follows:
18 U.S.C. § 2
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
21 U.S.C. § 841 (A)(1)
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.
ORAL ARGUMENT HAS NOT BEEN SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,PLAINTIFF- APPELLEE,
TYRONE xxxxxxx,DEFENDANT- APPELLANT.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period set forth in Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE CASE
On April 6, 1993, a five-count indictment was filed, naming Tyrone xxxxxxx, Donnell xxxxxxx, and Ronald xxxxxxx as defendants. (APP 6, DE #1) . All of the charges arose from the execution of a search warrant at 1123 First Terrace, N.W., Washington, D.C., on January 25, 1993. On July 19, 1993, defendant Tyrone xxxxxxx had not yet been presented on the indictment, and the remaining defendants' motion to dismiss the indictment was granted, without prejudice, because the government failed to prosecute the case. (APP 8-9, DE #18)
On April 12, 1994, a five-count superseding indictment was filed against the same defendants. (APP 23-25). The first count charged defendants xxxxxxx and xxxxxxx with possession with intent to distribute five grams or more of cocaine base and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and 18 U.S.C. § 2. The second count charged defendants xxxxxxx and xxxxxxx with possession with intent to distribute cocaine base within 1000 feet of a school and aiding and abetting, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2. The third count charged only defendant xxxxxxx with possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The fourth count again charged only defendant xxxxxxx with possession with intent to distribute cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860(a). Finally, the fifth count charged xxxxxxx and xxxxxxx with unlawful maintenance of premises to manufacture, distribute, store and use a controlled substance and aiding and abetting, in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2. As with the previous indictment, all five charges arose from the execution of the January 25, 1993 search warrant.
On July 14-15, 1994, a motions hearing was held on the defendants' motion for certain discovery, to sever defendants, and to suppress evidence. The suppression motion was continued until July 20, 1994 in order to provide the lead Detective, Derek Bell, with an opportunity to produce certain reports related to the search which had been requested by the defense, pursuant to Fed. R. Crim. P. 16 and 26.2 and Brady v. Maryland, 373 U.S. 83 (1963). When the documents could not be located, the trial court held hearings on the missing documents on September 14, 1994; December 6, 1994; December 14, 1994; February 9, 1995; and February 10, 1995.
Trial began with jury selection on May 11, 1995, and opening statements on May 15, 1995. On May 30th, pursuant to the defendants' motions for judgment of acquittal, the trial court dismissed count two, possession with intent to distribute within 1000 feet of a school, and count five, unlawful maintenance of a premises to manufacture, distribute, store and use a controlled substance, against defendants xxxxxxx and xxxxxxx, leaving only count one, possession with intent to distribute, for consideration by the jury. (APP 189)(5/30/95: 3). At the same time, the trial court dismissed count four, possession with intent to distribute within 1000 feet of a school, against defendant xxxxxxx. (APP 189)(5/30/95:3). On June 1, 1995, the jury returned a verdict of guilty on the remaining count against both Mr. xxxxxxx and Mr. xxxxxxx, as well as on the remaining count against Mr. xxxxxxx. (APP 226-228)(6/1/95: 2-4).
On September 6, 1995, the trial court heard argument on Mr. xxxxxxx's motion for a new trial and denied that motion. (APP 258-265). On that same date, the court sentenced Mr. xxxxxxx to seventy-two months of incarceration. (APP 232)(9/6/95: 47); JCO
On September 7, 1995, Mr. xxxxxxx filed a timely notice of appeal. (APP 270).
STATEMENT OF FACTS
This case arises from the execution of a search warrant at 1123 First Terrace, N.W., in the District of Columbia, on January 25, 1993. During the search, police discovered drugs from three locations on the third floor of the home of Ms. Annette xxxxxxx, the mother of defendants Tyrone xxxxxxx and Donnell xxxxxxx. (APP 139) (5/23/95: 117).
A.The Missing Documents
During the suppression hearing, it was revealed that police reports regarding the January 25th search warrant were missing: the report regarding the forcible entry at 1123 First Terrace, N.W. (PD 240); the pre-warrant conference report (PD 296); the pre-warrant execution checklist (PD296A); and the post-warrant execution checklist (PD 296B). See (APP 71-81)(5/15/95: 2A72-2A82) (describing the various documents). The trial court, disturbed by these missing documents, held hearings designed to re-create the documents. (APP 29-30)(12/14/94: 13-14). After hearing from most of the officers who participated in the search of the premises, the trial court denied the defendant's motion to dismiss, or in the alternative to exclude the testimony of Detective Bell, because the court did not find "bad faith." (APP 32)(4/18/95: 90). The court did find, however, "that there [had] been some disturbing missing documents." (APP 32)(4/18/95: 90). Ultimately, over the government's objection, the trial court gave a missing evidence instruction. (APP 183a, 218)(5/25/95: 189; 5/31/95: 43).
B.The Trial Evidence.
At trial, the prosecution presented evidence that on January 25, 1993, police executed a search warrant at 1123 First Terrace, N.W., where Ms. Annette xxxxxxx, the mother of defendants Tyrone xxxxxxx and Donnell xxxxxxx, lived with her six children, her husband, and some friends. (APP 87, 139)(5/16/95: 10; 5/23/95: 117). When the police arrived at the home, approximately twelve to fifteen people were present, (APP 58)(5/15/95: 2A41), and the police found approximately eight people on the third floor of the home, the floor on which all of the drugs were found. (APP 46-48, 59-60)(5/15/95: 2A6-2A8, 2A43-44).
As the police were approaching the house, they saw an individual poke his head out of the window in a bedroom, which for purposes of the trial was referred to as bedroom #2, and yell "police." (APP 42, 44)(5/15/95: 45, 49). When the police reached the third floor a few minutes later, Mr. xxxxxxx, Mr. xxxxxxx and Mr. xxxxxxx's girlfriend were located in Mr. xxxxxxx's bedroom, referred to throughout trial as bedroom #1, with the door closed. (APP 43, 129, 129a)(5/15/95: 46; 5/18/95: 67-68). No drugs were found in bedroom #1. (APP 130)(5/18/95: 108). However, the police did find some drug paraphernalia and currency in that room and on Mr. xxxxxxx's person (the actual amount of money varied depending upon which police report was reviewed). (APP 51, 61-70)(5/15/95: 2A12, 2A57, 2A59-67). Mr. xxxxxxx, however, did not have any drugs or drug paraphernalia on his person and had only $25 in his pockets. (APP 54, 85)(5/15/95: 2A20, 2A89).
When the police reached bedroom #2, the door was open, the room was full of people, and Detective Bell smelled the odor of marijuana. (APP 51)(5/15/95: 2A11). On the floor of that room were ziplock bags and loose rocks of cocaine base. (APP 50a)(5/15/95: 2A11). At the time of the search, there were five young men located in and around that room. One of the men, Ronald xxxxxxx, a co-defendant, was found to have cocaine base on his person. (APP 122, 133)(5/17/95: 16; 5/22/95: 28). The other men who were not arrested included Earl Cephus, Michael Douglas, Allen Rivers (aka Allen James), and Jonathan Bassim. (APP 59-60, 82-84, 89, 96, 99, 148-151)(5/15/95: 2A43-2A44, 2A85-2A87; 5/16/95: 12, 19, 22; 5/24/95: 128-131).
In the bathroom, the police found on the floor four small ziplock bags and sixty-one bags containing cocaine base in a glass jar in the bowl of a toilet that had been flushed but became plugged. (APP 49-50, 122)(5/15/95: 2A9-10; 5/17/95: 16).
Finally, drugs were also uncovered in the room referred to as bedroom #3, the room in which Mr. xxxxxxx stayed when he slept at his mother's house. (APP 159)(5/25/95: 22). The door to bedroom #3 was also open when the police arrived. (APP 41)(5/15/95: 40). The drugs were found between the mattress and frame of a waterbed, (APP 52-53, 123-125, 126)(5/15/95: 2A15-16; 5/17/95: 17-19, 76), and were completely concealed. (APP 134, 52-53)(5/22/95: 38)(5/15/95: 2A15-16). The police also found $2621 in currency hidden near the head of the bed. (APP 124)(5/17/95: 18). Also found in the closet of that room were a "sucrets" tin with marijuana stems and seeds, a "blackjack," a small hand-held scale, and a sneaker box containing personal papers of Mr. xxxxxxx. (APP 124-125)(5/17/95: 18-19).
Detective Bell testified that from the time that the "lookout" in bedroom #2 alerted the other men to the "police" being at the door, the men would have had time to hide drugs in the bed in bedroom #3 and to try to flush the drugs down the toilet. (APP 42-43, 56-57)(5/15/95: 45-46, 2A39-40). Ultimately, fingerprints could not be recovered from any of the evidence uncovered in bedroom #1 and bedroom #3 because the police officers improperly handled the evidence before attempts could be made to lift the prints from the objects. (APP 105-106)(5/16/95: 113-114). No attempt was made to recover fingerprints from the jar found in the toilet. (APP 105)(5/16/95: 113).
Ms. Annette xxxxxxx, the mother of Mr. xxxxxxx and Mr. xxxxxxx, also was present in the home. (APP 142)(5/24/95: 45). The police, however, arrested only Mr. xxxxxxx, Mr. xxxxxxx, and Mr. xxxxxxx. (APP 55)(5/15/95: 2A34),
The defense introduced evidence that on February 17, 1993, police again executed a search warrant at 1123 First Terrace, N.W. (APP 88-89)(5/16/95: 11-12). Neither Mr. xxxxxxx nor Mr. xxxxxxx was present in the home, but Mr. Cephus, Mr. Douglas, and Mr. Rivers again were present on the third floor. (APP 89-103)(5/16/95: 12-26). Ms. xxxxxxx also was present in the home. (APP 102-103)(5/16/95: 25-26). Police found narcotics in the gutter outside of bedroom 3. (APP 95, 155)(5/16/95: 18; 5/24/95: 137). In that same bedroom, police found the identification of Earl Cephus. (APP 92)(5/16/95: 15). In bedroom #1, police found the identification of Michael Douglas and drug paraphernalia. (APP 96, 153)(5/16/95: 19; 5/24/95: 135). On February 17th, the police arrested Earl Cephus, Allen Rivers (aka Allen James), Michael Douglas, and Annette xxxxxxx. (APP 92, 99-103, 152)(5/16/95: 15, 22-26; 5/24/95: 133). When they arrested Cephus, he had $ 320 in cash on him. (APP 93, 153)(5/16/95: 16; 5/24/95: 135).
At trial, the prosecution's theory--at least until closing argument--was that Mr. xxxxxxx and Mr. xxxxxxx were in "exclusive control" of the third floor of 1123 First Terrace, N.W. (APP 39-40)(5/15/95: 13-14). Indeed, at the first motions hearing in the case in July 1994, the prosecutor clearly set forth the government's theory that the drugs found at the house were "attributable jointly and completely to both Mr. xxxxxxx and Mr. xxxxxxx." (APP 27)(7/14/94: 7). During the opening statement, the prosecutor informed the jury that defendants xxxxxxx and xxxxxxx had "taken over the third floor" of their mother's home and "converted the third floor under their exclusive control for the maintenance of a crackhouse." (APP 39-40)(5/15/95: 13-14). The prosecutor also claimed that the evidence would show that "defendant xxxxxxx and defendant xxxxxxx possessed jointly under their control in this third floor...somewhat more than 20 grams of crack." (APP 40)(5/15/95: 14).
Mr. xxxxxxx's defense was that he was not responsible for the narcotics that police seized on January 25, 1993. During the prosecution's case and the defense case, he presented evidence that other young men used the home at 1123 First Terrace, N.W., for their drug activities, and that they were able to do so because Ms. xxxxxxx, his mother and the lessee of the home, suffered from a drug problem. (APP 143, 146-147, 161-165, 175, 177-178)(5/24/95: 49, 72-73; 5/25/95: 29-33, 140, 147-48). Evidence was presented that these young men-- including Cephus, Rivers (aka James), and Douglas--had the run of Ms. xxxxxxx's home for their drug activities. (APP 161-167, 170, 172, 175-178)(5/25/95: 29-35, 38, 40, 140, 146-148). During both the prosecution's case and the defense case, evidence was presented that some of these young men also spent nights in the third floor bedrooms. (APP 96, 100, 139-140, 144-145, 160, 172)(5/16/95: 19, 23; 5/23/95: 117, 121; 5/24/95: 69-70; 5/25/95: 28, 40). Evidence was presented in the prosecution's case and the defense case that Mr. xxxxxxx spent some nights at 1123 First Terrace, N.W., and other nights at the home of his girlfriend, Ms. Angela Peaks. (APP 145, 171)(5/24/95: 70; 5/25/95: 39). Mr. xxxxxxx admitted knowledge of the drug activities at his mother's home, but denied possessing the drugs that police seized on January 25, 1993. (APP 161-163)(5/25/95: 29-41).
Support for the defense theory came from the government's expert Johnny St. Valentine Brown. Detective Brown testified that it was "a very common practice" for drug dealers to sell out of other peoples' homes since selling out of one's own home creates greater risks of being arrested and convicted. (APP 136)(5/23/95: 93). Detective Brown also agxxxxxxx that drug dealers often will use the house of someone who has a drug problem because those individuals are more vulnerable and can be compensated with drugs. (APP 137-138)(5/23/95: 94-95).
C.The Mistrial Motion Based on the Hearsay Introduced Through Detective Bell
Mr. xxxxxxx moved for a mistrial during the prosecution's case-in-chief, and renewed that motion at the close of the evidence, based on United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1993). The motion was based on the prosecutor's questions to the lead police officer, Detective Derek Bell, regarding a conversation with Annette xxxxxxx (the mother of Mr. xxxxxxx and Mr. xxxxxxx) on January 25, 1993, the night that police arrested her two sons but did not arrest Cephus, Douglas, Rivers (aka James), and Bassim. (APP 107)(5/16/95: 115). Counsel objected on hearsay grounds. (APP 108-109)(5/16/95: 116-17). Before allowing the prosecutor to proceed, the Court carefully inquired:
THE COURT: So she's not going to pinpoint anybody?
MR. KOPEL: Well, no, no, absolutely not.
(APP 108)(5/16/95: 116).
The prosecutor then proceeded as follows:
BY MR. KOPEL:
Q: Detective, shall I reask my question?
A: Please, sir.
Q:What were the reasons, among the reasons that led you not to arrest Mrs. Annette xxxxxxx on January 25, 1993?
A:Ms. xxxxxxx stated to me as I was explaining to her the circumstances in which she could be arrested, she explained to me that she had no knowledge that her sons were doing drugs upstairs.
(APP 110)(5/16/95: 118). Mr. xxxxxxx's counsel moved for a mistrial. (APP 111)(5/16/95: 119). The Court denied the motion for mistrial but struck the statement and told the jurors to disregard it as follows:
That statement concerning Ms. xxxxxxx's statement as to what her son's were doing is not properly before you. See that goes to the truth. You see what I'm saying to you? And I don't want that in at all.
(APP 111)(5/16/95: 119). Those words from Detective Bell were the last words the jurors heard from the witness stand before being excused for the evening. The court recognized the prejudice. (APP 114-116)(5/16/95: 122-124).
However, the trial court refused to order a new trial on this ground because the statement was not hearsay, but rather "went to the detective's state of mind, i.e., why he had not arrested defendant's mother, and was not admitted for the truth of the matter asserted." (APP 264). In addition, the court suggested that any potential error was substantially mitigated because the mother, herself, testified, and the defendant had a full opportunity to examine her about the statement. (APP 264).
D.The Jury Instructions and Mr. xxxxxxx's Objections to Them.
Despite its argument during opening statement that Mr. xxxxxxx and Mr. xxxxxxx were in "exclusive control" of the drug activities on the third floor of 1123 First Terrace, N.W., the prosecution requested an aiding and abetting instruction. Mr. xxxxxxx objected and submitted that the prosecution had not proceeded on this theory and that this last minute change was unfair to the defense, lacked any evidentiary basis, and gave rise to "the grave danger that jurors would convict Mr. xxxxxxx based solely on his perceived association with the men who were not arrested on January 25, 1993." (APP 247-248).
During a charge conference on May 25, 1995, Mr. xxxxxxx's counsel again objected to the aiding and abetting instruction. Counsel further argued that, if the instruction were given, specific portions should be deleted. Counsel requested that the trial court delete the portion of the instruction stating that, "[i]t is not necessary that the defendant have had the same intent that the principal offender had." (APP 137)(5/25/95: 194). Defense counsel specifically noted that this portion of the instruction "is used in ... a felony murder case. It's just not appropriate here. It doesn't fit our case. I don't know of any other proper use of that paragraph, other than if it's a felony murder or something." (APP 187) (5/25/95: 194). Counsel made further specific objections to the aiding and abetting instruction that day, and on May 31, 1995, after reviewing a revised version of the court's proposed instructions. (APP 206-209)(5/31/95: 11-14).
Mr. xxxxxxx's counsel also objected to the court's proposed general instruction on intent, which included the phrase that "[y]ou may infer, but are not required to infer, that a person intends the natural and probable consequences of acts knowingly done." (APP 184)(5/25/95: 190). Counsel argued that, given that the prosecution was required to prove Mr. xxxxxxx's specific intent to distribute narcotics, that portion of the instruction was misleading as to the required intent and should be deleted. (APP 184-185)(5/25/95: 190-91).
Over objection, the trial court indicated that it would give the aiding and abetting charge, (APP 190)(5/30/95: 11), and the objected-to language in the intent instruction, (APP 185)(5/25/95: 191).
1.The Aiding and Abetting Instruction.
Immediately after the instruction on the charged offense of possession with intent to distribute cocaine base, the Court gave the following instruction to the jury on aiding and abetting:
Under the aiding and abetting theory of liability, you may find a defendant guilty of the crime charged in the indictment without finding that he personally committed each of the acts that make up the crime. And any person, who in some way intentionally participates in the commission of a crime, aids and abets the principal offender. He therefore is as guilty of the crime as he would be if he or she had personally committed each of the acts that make up the crime.
For example, if a person goes in and robs a bank, and he comes out with the money and he gets in the car. And the driver of the -- there is a driver of the car there. They drive off together and they get caught. The driver of the car, even though he didn't go in the bank to rob the bank, he is considered an aider and abettor if he knew that that's what the individual was going to do that was with him. You understand that? That's what we mean by aiding and abetting. And that person is as guilty of the crime as he would be if he had personally committed each of the acts that make up the crime.
To find that the defendant aided and abetted in committing a crime, you must find the defendant knowingly associated himself with the person who committed the crime, that he participated in the crime as something he wished to bring about, and that he intended by his actions to make it succeed.
Some affirmative conduct by the defendant to help in planning or carrying out the crime is necessary. Mere physical presence by the defendant at the place and time that the crime is committed is not by itself sufficient to establish guilt. However, mere physical presence is enough if it is intended to help the principal offender and in fact does help him. It is not necessary that you find that the defendant was actually present while the crime was committed.
The government is not required to prove that anyone discussed or agxxxxxxx upon a specific time or method of committing the crime. The government is not required to prove that the crime was committed in the particular way planned or agxxxxxxx upon. Nor need the government prove that the principal offender and the person alleged to be the aider and abettor directly communicated with each other.
It is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed or that he have intended to commit the particular crime committed by the principal offender. An aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequences of the crime in which he intentionally participates.
It is not necessary that all the people who committed the crime be caught or identified. It is sufficient if you find beyond a reasonable doubt that the crime was committed by someone and that the defendant knowingly and intentionally aided and abetted the principal offender in committing the crime.
Now, yesterday the government argued to you that you could convict Defendants xxxxxxx and xxxxxxx if you found that they aided and abetted one of these other people named Earl Cephus, Michael Douglas, Allen Rivers or Jonathan Bassim. I'm going to ask you to strike that argument from the record and to disregard it in your deliberations.
The reason for it is because I didn't find that the government presented any evidence that the Defendants xxxxxxx and xxxxxxx aided and abetted Earl Cephus, Michael Douglas, Allen James or Jonathan Bassim, and it was just introduced for the first time in closing argument. But you may consider during your deliberations whether the Defendants xxxxxxx and xxxxxxx aided and abetted each other. Okay.
So what I'm saying to you is take out of the mix any question about aiding and abetting these other four people against whom we heard very xxxxxxx at the trial. But I am saying that aiding and abetting as I've given you an instruction will apply between the Defendants xxxxxxx and xxxxxxx as to whether or not they aided and abetted each other. Okay. You got it?
(APP 220-223)(5/31/95: 50-53) (emphasis added).
In denying the defendant's motion for a new trial on this ground, the trial court rejected the defendant's argument that the jury should have been "required to find that the defendant had the same criminal intent as the principal." (APP 261). The court labelled Mr. xxxxxxx's argument as "an overstatement of the law on aiding and abetting," and held that other portions of the court's instructions did impose an intent requirement. (APP 261-262).
2.The Intent Instruction.
The court's general instruction on intent included the language that:
You may infer, but are not required to infer, that a person intends the natural and probable consequences of acts knowingly done.
(APP 219)(5/31/95: 44). Mr. xxxxxxx renewed his objections after the Court instructed the jury. (APP 224)(5/31/95: 60).
E.The Prosecution's Closing Argument and the Court's Concerns.
The prosecution strenuously argued the aiding and abetting theory of liability to the jury during closing argument. The prosecutor argued that:
Ladies and gentlemen, you know the answer. It doesn't happen unless you're in on the deal. And ladies and gentlemen, this is why the law is important, because if you're in on the deal, you're helping out, even if it wasn't your business, you're in under the theory of aiding and abetting. And you will be instructed on that."
(APP 192)(5/30/95: 43); see (APP 194)(5/30/95: 47).
He also argued that:
As to Mr. xxxxxxx and Mr. xxxxxxx, they are also charged with aiding and abetting possession with intent to distribute more than 20 grams, and, ladies and gentlemen, aiding and abetting means all you have to do is help. It doesn't have to be your business. It doesn't have to be your directly possessed drugs, as long as you're helping the business. And you will hear this in closing instructions.
(APP 195)(5/30/95: 48); see also (APP 191, 196-197)(5/30/95: 29, 49 (entire page of transcript), 50 ("the only credible conclusion is that they were in on the deal and they are still guilty")).
During its rebuttal argument, the prosecution again argued the aiding and abetting theory, emphasizing Earl Cephus and the other men. Specifically, the prosecutor argued:
But I'll say this, the government has no obligation to prove exactly who else might have been in or out of the game and under the aiding and abetting theory, we have no obligation to prove exactly who was running the show or whether Donnell xxxxxxx and Tyrone xxxxxxx were just aiding and abetting and assisting the other guys in running the business.
(APP 198)(5/30/95: 122).
After closing arguments, the Court expressed substantial concern over the government's "last minute injection into the case about [Mr. xxxxxxx and Mr. xxxxxxx] aiding and abetting not each other but the aiding and abetting Earl Cephus, Michael Douglas, Allen Rivers or Jonathan Bason [sic]." (APP 200)(5/31/95: 2). The prosecution argued that it acted properly in making the argument. (APP 200)(5/31/95: 2). The court questioned the fundamental fairness of the prosecution's conduct:
[T]he theory of the aiding and abetting has changed. The theory that I thought aiding and abetting was aiding and abetting each other . . . .
What the government has done now is saying that the aiding and abetting is equally applicable to aiding and abetting the four other people that were in that room.
(APP 201-202)(5/31/95: 4-5).
Mr. xxxxxxx's counsel responded that was the "problem all along," and referred to the written objections to the court's proposed instruction. (APP 202)(5/31/95: 5). After hearing arguments from the parties, the court indicated that it would instruct the jurors not to consider aiding and abetting involving Cephus, Douglas, Rivers (aka James), and Bassim, but to consider aiding and abetting between Mr. xxxxxxx and Mr. xxxxxxx. (APP 217)(5/31/95: 22).
F.The Undisclosed Criminal Charge Against the Foreman
During voir dire the court asked the Ridley question as follows:
Okay, now, during the past ten years have any of you or a member of your family or close friend been a victim of any type of crime, a witness of a crime, or accused of a crime other than a traffic offense?
(APP 34)(5/11/95: 8). The record reveals that juror #1130, John R. Rogers, failed to respond affirmatively to that question. (APP 34-36)(5/11/95: 8-10). Mr. Rogers ultimately served as foreman of Mr. xxxxxxx's jury. (APP 254) (verdict form signed by foreman Rogers).
In fact, records submitted by Mr. xxxxxxx as part of his post-trial motion for a new trial, establish that Mr. Rogers, in fact, had been previously charged with a crime, assault. The "file date" of the case was October 25, 1984, and Mr. Rogers stood accused of the crime until he obtained a not guilty verdict on August 1, 1985, less than ten years before the Court's Ridley question on May 11, 1995.
The trial court denied Mr. xxxxxxx's post-trial request for a new trial or an evidentiary hearing on this issue because the court found that the "juror answered the question truthfully, if somewhat technically." The court reasoned while Mr. Rogers "stood accused" of a crime until August of 1985, he had "been accused more than ten and one-half years before the date of the voir dire." (APP 263). Although no hearing was held on the reason why Mr. Rogers did not disclose this information, the court found that it was "clear that the failure to disclose such stale information was, at worse, an honest and insignificant mistake." (APP 263).
SUMMARY OF ARGUMENT
The evidence was insufficient to convict Mr. xxxxxxx of possession with intent to distribute cocaine base or of aiding and abetting. Mere physical presence and knowledge of drugs on the third floor of his mother's house was insufficient to constitute constructive possession of those drugs. Instead, in order to find constructive possession, there had to be some evidence that Mr. xxxxxxx had the right to exercise dominion and control over those drugs. The only evidence of this came from the contraband and other items which were seized from the bedroom in which Mr. xxxxxxx regularly stayed on those nights when he slept at the house. However, Mr. xxxxxxx was not in that room when the police arrived, the drugs and money were concealed, and other men in the house had complete access to that room. That these other men were the ones involved in the drug dealing was supported by the testimony of the government's expert and by the evidence that approximately three weeks later the police returned to the house, many of the men were again present, Mr. xxxxxxx was not present, and drugs and money were uncovered in the same bedroom. Similarly, there was insufficient evidence that Mr. xxxxxxx was guilty as an aider and abettor because there was no evidence that he was an active participant in the drug activities which were occurring on the third floor of the residence.
The trial court incorrectly instructed the jury that to be guilty of aiding and abetting, a defendant need not have the same criminal intent as the principal. This error requires a reversal of Mr. xxxxxxx's conviction because the jury was expressly told to disregard an essential element of the offense. In such circumstances, this Court does not even need to conduct a further harmless error inquiry. However, if such an analysis were employed, reversal would nonetheless be required because the evidence of guilt in this case was slight, there was a likelihood that the jury could have convicted Mr. xxxxxxx of aiding and abetting merely based on his admitted knowledge of the drug activity and his presence on the third floor of the house, and the trial court's other instructions and the government's closing also abrogated the specific intent requirement.
The trial court also erred when it failed to grant a mistrial based on a police officer's hearsay testimony that Mr. xxxxxxx's mother, on the night of the search warrant, suggested that the police, by arresting her sons, had arrested the correct individuals. This statement was extremely prejudicial in light of the defendant's theory that it was the other individuals on the third floor of the residence who were involved in drug dealing. Although the trial court struck the officer's testimony, its curative instruction was insufficient to remove the prejudice. See United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1992).
Finally, the trial court erred when it denied the defendant's motion for a new trial, or in the alternative for an evidentiary hearing, when it was discovered that the foreman of the jury had not accurately answered the Ridley question during voir dire on May 11, 1995. Although the foreman had been charged with an offense on October 25, 1984 and that offense was not disposed of until August 1, 1985, the foreman failed to reveal that he had been charged with an offense within ten years of May 11, 1995. At the very least, the trial court should have provided Mr. xxxxxxx with an evidentiary hearing to establish whether or not the foreman's failure to correctly answer the question was due to his "undue desire to participate in [this] case, perhaps because of partiality." United States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992).
We submit that each of these errors, independently, and when taken cumulatively, require that this Court reverse Mr. xxxxxxx's conviction.
I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT MR. xxxxxxx'S CONVICTION ON COUNT ONE AS A PRINCIPAL OR AS AN AIDER AND ABETTOR
In this case -- viewing the evidence in the light most favorable to the government -- the evidence was insufficient to show that Mr. xxxxxxx possessed with intent to distribute the drugs found at 1123 First Terrace, N.W., or that he aided and abetted another in the commission of that crime.
A. STANDARD OF REVIEW
This Court conducts a de novo review of Mr. xxxxxxx's challenge to the sufficiency of the evidence. United States v. Fennell, 53 F.3d 1296, 1298 (D.C. Cir. 1995). While this Court is constrained to affirm where "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," United States v. Thorne, 997 F.2d 1504, 1509 (D.C. Cir. 1993) (citations omitted), the Court's duty is only fulfilled where it "ensure[s] that the evidence adduced at trial is sufficient to support a verdict as a matter of law. A jury is entitled to draw a vast range of reasonable inferences from the evidence, but may not base a verdict on mere speculation." United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir. ) (quotations omitted).
B.IN ORDER TO ESTABLISH CONSTRUCTIVE POSSESSION, THE EVIDENCE MUST SHOW THAT MR. xxxxxxx WAS IN A POSITION TO OR HAD THE RIGHT TO EXERCISE DOMINION AND CONTROL OVER THE COCAINE BASE
To prove constructive possession of narcotics the prosecution "must show that the [defendant] was in a position or had the right to exercise dominion and control over the narcotics," and that the defendant knowingly possessed the narcotics. See United States v. Watkins, 519 F.2d 294, 298 (D.C. Cir. 1975) (citations omitted). In United States v. Pardo, 636 F.2d 535 (D.C. Cir. 1980), the Court declared that
mere presence at the scene of a drug transaction or mere proximity to drugs seized is not sufficient to establish guilt . . . There must be some action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them.
Id. at 549. Further, in cases in which police recover drugs in a place occupied by more than one person, the prosecution must establish "'the likelihood that in some discernible fashion the accused had a substantial voice vis-a-vis' the items in question." United States v. Ford, 993 F.2d 249, 252 (D.C. Cir. 1993) (citations omitted; emphasis in original).
In two types of search warrant cases--those involving many people present in the home and those involving joint occupancy of the premises in which drugs are found--courts frequently find insufficient evidence to convict defendants of constructive possession with intent to distribute narcotics. In United States v. Watkins, 519 F.2d 294 (D.C. Cir. 1975), for example, Sandra Watkins was located sitting alone on a bed in the bedroom with two other individuals in the apartment. Drugs and drug paraphernalia were found in a dresser drawer next to the bed, and a large sum of cash was found under the same bed. Books with Watkins' name in them were discovered in a closet and women's clothing was discovered in the bedroom. Evidence indicated that the defendant had been living there regularly. Id. at 296. Despite the close proximity of the defendant to the drugs, the court held that there was insufficient evidence to support a finding of constructive possession. Id. at 298.
In United States v. Grayson, 685 F. Supp. 279 (D.D.C. 1988), the defendant was in the bedroom of a house where police found drugs. Id. at 280. A question existed about whether the defendant lived in the home. Id.. The court ruled that even if the jury fairly could have concluded that the defendant and another person were joint occupants, that inference by itself could not support a finding of possession. "[F]urther evidence of dominion and control . . . must be adduced before a jury can conclude that a defendant knowingly possessed contraband." Id. at 281.
In United States v. Thorne, 997 F.2d 1504, 1510 (D.C. Cir.), cert. denied, 114 S. Ct. 568 (1993), the Court found insufficient evidence to convict a defendant of constructive possession of narcotics. Although the defendant lived in the bedroom where police found narcotics, the narcotics and paraphernalia were not in plain view and others shared the bedroom at various times. Id. at 1510-11. And in United States v. Bonham, 477 F.2d 1137, 1139 (3d Cir. 1973) (en banc), the Third Circuit found insufficient evidence to prove a defendant's constructive possession of narcotics where other suspected drug items were in plain view, but the defendant's half-brother also used the room from which police recovered the drugs.
C. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT MR. xxxxxxx CONSTRUCTIVELY POSSESSED THE DRUGS FOUND IN THE HOUSE
In this case, the prosecution introduced evidence that Mr. xxxxxxx was in bedroom #1 on the third floor of the home when police executed the search warrant on January 25, 1993. (APP 46)(5/15/95: 2A6). Police recovered no drugs from bedroom 1. (APP 51)(5/15/95: 2A12). Further, police recovered no drugs or drug paraphernalia from Mr. xxxxxxx's person, and recovered only $25 in cash from Mr. xxxxxxx. (APP 54, 85)(5/15/95: 2A20, 2A89)
Although the prosecution presented evidence that Mr. xxxxxxx resided in bedroom #3 and Mr. xxxxxxx conceded that he stayed in that room on those nights when he slept at his mother's home, the prosecution's case showed that, at a minimum, bedroom #3 was shared by several men. Detective Bell testified that the clothing in the bedroom was adult male clothing, but in different sizes. (APP 104)(5/16/95: 112). He testified that on February 17, 1993, the date of the second search, identification in Earl Cephus' name was found in bedroom #3 and drugs were found outside the window to bedroom #3. When Mr. Cephus was arrested, police recovered $320 from his person. (APP 89-103, 153-155)(5/16/95: 12-26; 5/24/95: 135-137).
Evidence during the prosecution's case also indicated that bedroom #1 was jointly occupied. In addition to papers in Mr. xxxxxxx's name, police on January 25, 1993 found papers in the name of James Allen, Michael Douglas, and others. (Foshee cross) When police searched the home again on February 17, 1993, they found Mr. Douglas' identification card in bedroom #1. (APP 96, 153)(5/16/95: 19; 5/24/95: 135)
The evidence in Mr. xxxxxxx's case is substantially weaker than the evidence that the Court stated was just barely sufficient in United States v. Eccleston, 961 F.2d 955, 961 (D.C. Cir. 1992) (reversing conviction where evidence barely sufficient and trial court erred in admitting prejudicial hearsay). In Eccleston, police arriving to execute a search warrant found 19-year old Trevor Eccleston in the open doorway of his mother's home. He had $783 on his person. Id. at 956. In his room (or former room, as the evidence was conflicting), police found ammunition and a scale. Id. at 957. A crawl space accessible from the room contained cocaine. Police found drugs, paraphernalia, guns, and ammunition throughout the house and adjacent patio. Id. Although the defense presented evidence that other persons stayed in the home, apparently none of those persons was present when police searched the home and found narcotics and weapons. Id. at 956-958.
Here, in contrast, evidence during the prosecution's case demonstrated that, other than the three defendants on trial, at least four other persons on the third floor (Earl Cephus, Allen Rivers, Jr., Michael Douglas and Jonathan Bassin) had access to the areas in which police found drugs. Detective Bell testified that he was the first officer to reach the third floor on January 25, 1993, and that the doors to bedrooms #2 and #3 were open. Four men--Earl Cephus, Allen Rivers, Jr. (aka James Allen), Michael Douglas, and Jonathan Bassin--were in bedroom 2. Detective Bell testified that, in the one to two minutes it took for him to reach the third floor after having been spotted by a "lookout" in bedroom #2, the men would have had time to stuff the narcotics into the corner of the bedframe in bedroom #3, and would have had time to flush drugs in the toilet in the third floor bathroom. (APP 42-43, 56)(5/15/95: 45-46, 2A39). Detective Bell did not see which man attempted to flush the narcotics in the third floor bathroom, nor did he see which man stuffed the narcotics in the corner of the bedframe in bedroom 3. (APP 57)(5/15/95: 2A40). Further, because the officers whom he supervised "contaminated" the evidence in bedrooms #1 and #3 by the way in which they seized it, the crime scene search officer (Officer Sanders) advised him that he would be unable to recover fingerprints. (APP 105-106)(5/16/95: 113-14).
Although the evidence showed Mr. xxxxxxx's proximity to drugs, it did not show that he had dominion and control over the drugs, or that he was anything other than an "incidental bystander" to the conduct of the many men in his mother's home. Pardo, 636 F.2d at 549. The prosecution failed to introduce any evidence tending to show that Mr. xxxxxxx (rather than, for example, Mr. Cephus, Mr. Rivers, Mr. Douglas, or Mr. Bassin) had dominion and control over the drugs. The prosecution introduced no evidence that Mr. xxxxxxx had ever sold drugs in the past. The evidence in the prosecution's case did reveal, however, that Mr. Cephus, Mr. Douglas, Mr. Rivers, and Ms. xxxxxxx were arrested within a few weeks on narcotics charges when police found more drugs in Ms. xxxxxxx's home.
In Pardo, this Court declared that "[i]t may be foolish to stand by when others are acting illegally, or to associate with those who have committed a crime," but "[s]uch conduct or association. . . without more, does not establish the offenses [possession with intent to distribute drugs] charged here." Pardo, 636 F.2d at 549. Although drugs were present at 1123 First Terrace, N.W., on January 25, 1993, neither knowledge of drugs nor close proximity to drugs is by itself a crime. From the evidence presented at trial, no reasonable juror could have concluded beyond a reasonable doubt that Mr. xxxxxxx possessed with intent to distribute the drugs found in that home.
D.THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT MR. xxxxxxx AIDED AND ABETTED MR. xxxxxxx'S POSSESSION WITH INTENT TO DISTRIBUTE COCAINE BASE
These same deficiencies also render any conviction on an aiding and abetting theory infirm. Here, the only theory on which the jury was permitted to find aiding and abetting was one which involved Mr. xxxxxxx aiding and abetting Mr. xxxxxxx's possession with intent to distribute cocaine base. In order to find aiding and abetting, the government had to establish: (1)the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense. United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir.), cert. denied, 114 S. Ct. 337 (1993).
As with the underlying offense, there must be something beyond mere presence to establish aiding and abetting. See United States v. Washington, 12 F.3d 1128, 1136 (D.C. Cir. 1994) (to be guilty of aiding and abetting possession with intent to distribute "one must actively seek to aid or assist the person in possessing the drugs.") (quotations omitted); United States v. Campbell, 702 F.2d 262, 265 (D.C. Cir. 1983) ("it must be proven that the defendant consciously assisted the commission of the specific crime in some active way.") (quotations omitted).
In those cases in which sufficient evidence of aiding and abetting has been found, the defendant engaged in conduct clearly designed to advance the underlying criminal objective. See, e.g., United States v. McKinley, 70 F.3d 1307, 1314 (D.C. Cir. 1995) (sufficient evidence of aiding and abetting drug distribution found where defendant, in undercover sting, made repeated efforts to help the undercover officer find a seller, arranged the meeting that culminated in the transaction serving as the basis for the indictment, the sale took place in defendant's bedroom, the defendant actually handed the drugs to the officer, and the defendant counted the money for the seller); United States v. Monroe, 990 F.2d 1370, 1374 (D.C. Cir. 1993) (sufficient evidence of aiding and abetting possession with intent to distribute found where defendant procured customer and then sent customer to her "buddy" for actual purchase and where transactions took place in her yard).
Here, taking the evidence in the light most favorable to the government, Mr. xxxxxxx knew of the drug activity in his house, but he was by no means an "active participant" in that endeavor, either independently or with his brother, Mr. xxxxxxx. The evidence did not reveal that Mr. xxxxxxx was in physical possession of drugs or that he was doing anything to facilitate the distribution of drugs by Mr. xxxxxxx. The only evidence of any connection between Mr. xxxxxxx and the drugs arose from the fact that drugs and currency were found in bedroom #3, the room generally considered Mr. xxxxxxx's bedroom. However, when the police arrived, the door to that bedroom was open, other individuals had easy access to the room, the drugs and money were concealed, and Mr. xxxxxxx was in another room with the door closed. From that evidence, there is no basis to conclude that Mr. xxxxxxx was somehow helping Mr. xxxxxxx possess with the intent to distribute cocaine base.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY WRONGLY INFORMING THE JURY THAT THE AIDER AND ABETTOR NEED NOT HAVE THE SAME CRIMINAL INTENT AS THE PRINCIPAL.
As set forth in the statement of facts, by the close of the trial, the government was relying heavily on the theory that Mr. xxxxxxx was guilty as an aider and abettor. While the lack of any strong evidentiary connection between Mr. xxxxxxx and the drugs found at the house made this an obvious and necessary strategy for the government, the application of aiding and abetting principles in this case posed a number of serious problems. For example, it constituted a significant departure from the government's predominate theory through most of the trial that Mr. xxxxxxx and Mr. xxxxxxx had joint possession of the drugs. In addition, the government argued that Mr. xxxxxxx or Mr. xxxxxxx may have aided and abetted some of the other young men on the third floor, and while the trial court instructed the jury to disregard this theory, this created another avenue for jury confusion. Most importantly, though, in light of Mr. xxxxxxx's testimony that he knew that drug dealing was going on in the house and that he was present at the time of the search, it was extremely important that the jury understand the specific intent required for aiding and abetting, and that knowledge and presence, by themselves, were insufficient to establish the crime. However, the trial court's instructions specifically informed the jury that to find aiding and abetting, it need not find that Mr. xxxxxxx had the same intent as the principal or that he intended to commit the particular crime committed by the principal, when exactly the opposite is true.
A. THE TRIAL COURT'S AIDING AND ABETTING INSTRUCTION WAS INCORRECT BECAUSE IT EXPRESSLY INFORMED THE JURY THAT IT DID NOT NEED TO FIND A CRITICAL ELEMENT OF THE OFFENSE
1. Standard of Review
The question of whether the aiding and abetting instruction was incorrect, as a matter of law, is subject to plenary review by this Court. See United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995).
2.The aiding and abetting instruction directed the jury to disregard the specific intent requirement in the statute
The trial court instructed the jury that:
[i]t is not necessary that the defendant have had the same intent that the principal offender had when the crime was committed or that he have intended to commit the particular crime committed by the principal offender.
This instruction did not require jurors to find beyond a reasonable doubt that Mr. xxxxxxx had the specific intent to possess and distribute the cocaine base. Accordingly, it was serious error, as "aiders and abettors must possess the same criminal intent as the principals." United States v. North, 910 F.2d 843, 881 n.11 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991); see also United States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir.) ("[t]his Court has recently made clear that 'aiders and abettors must possess the same criminal intent as the principals"; reversing conviction of alleged aider-abettor) (citations omitted), cert. denied, 114 S. Ct. 337 (1993); Monroe, 990 F.2d at 1374 (aider and abettor must "shar[e] the requisite criminal intent" with the principal.).
The proposition that an aider and abettor must have the same criminal intent as the principal is so well established that even the prosecutor in this case conceded that this portion of the instruction should not have been given. ((APP 230)(9/6/95: 30). Other circuits have similarly recognized this hornbook principle. See, e.g., United States v. Martiarena, 955 F.2d 363, 366 (5th Cir. 1992) ("'association' means that the defendant shared in the criminal intent of the principal"; affirming district court's judgment of acquittal); United States v. Hamblin, 911 F.2d 551, 558 (11th Cir. 1990) ("government must show that the defendant shared the same unlawful intent as the actual perpetrator;" reversing count), cert. denied, 500 U.S. 943 (1991); United States v. Batt, 811 F. Supp. 625, 628 (D. Kan. 1993) (granting defendant's motion for new trial where court's aiding and abetting instruction permitted jury to convict defendant absent proof beyond a reasonable doubt of requisite criminal intent).
Although the case law appears unanimous and the government has conceded that the challenged language is an incorrect statement of law, the trial court in its ruling on the new trial motion inexplicably held that this portion of the instruction "when read in the context of the entire aiding and abetting charge, was an accurate statement of the law." (APP 260). The court reasoned that if the aider and abettor always had to have the identical intent as the principal, then "aiding and abetting would be written out of the statute." (APP 261). However, the trial court's analysis failed to account for the fact that an individual becomes an aider and abettor because the nature of his or her conduct is different than the principal, not because his or her intent is different. See Salamanca, 990 F.2d at 638.
B.This error requires a reversal of Mr. xxxxxxx's conviction
1.Where, as here, the instructional error removes from the jury's purview an element of the offense, the traditional harmless error analysis is inapplicable and the conviction should be reversed.
The instructional error here could not have been more basic or fundamental: it did not merely fail to instruct the jury that aiders and abettors must have the same intent as the principal, it expressly informed the jury that this identical intent was not required. Accordingly, it effectively removed from the jury's consideration an essential element of the offense. As the Supreme Court has noted, the Fifth and Sixth Amendments to the United States Constitution "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. , 115 S.Ct. 2310, 2313 (1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 2081 (1993)).
Recently, the Ninth Circuit, in an en banc opinion, distinguished between cases which involve merely a failure to instruct on a particular element of the offense and ones which involve completely removing the element from the jury's purview. Roy v. Gomez, F.3d , 1996 WL 172841, 3-4 (9th Cir., April 15, 1996) (en banc). While in the Ninth Circuit the former category of cases is subject to a special kind of harmless error review, the latter category requires per se reversal because "when proof of an element has been completely removed from the jury's determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all." Id. at 3 (quotations omitted). This case falls into the second category because of the trial court's clear and unmistakable admonition to the jury that to be convicted of aiding and abetting, the defendant need not have the same intent as the principal.
2.Reversal is similarly required even if harmless error review is applied in this case.
In earlier cases, this Court has held that where a trial court wrongly informs this jury that a defendant can be convicted without the specific intent to commit the charged crime, the ensuing conviction must be reversed unless, pursuant to Chapman v. California, 386 U.S. 18, 24 (1976), the instructional error was harmless beyond a reasonable doubt. See United States v. Jones, 909 F.2d 533, 538 (D.C. Cir. 1990); United States v. Rhone, 864 F.2d 832, 836 (D.C. Cir. 1989); United States v. Alston, 551 F.2d 315, 316 (D.C. Cir. 1976). Here, in light of the relatively weak case against Mr. xxxxxxx and the risk that the jury might have convicted him merely based on his knowledge of the drug activity and his presence on the third floor (two facts that he conceded), this instructional error cannot be considered harmless under the Chapman standard.
In conducting the Chapman analysis, this Court has examined "the strength of the evidence of guilt." Alston, 551 F.2d at 320 (citations omitted). The Court has held that the stronger the evidence of guilt, the less likely that the error was prejudicial. United States v. Martin, 475 F.2d 943, 948 (D.C. Cir. 1973). As frequently noted by the trial court, this was an extremely close case. (APP 118)(5/16/95: 126) ("It's a close case. There is plenty for all you people (defense counsel) to go on. I think you got plenty of argument of reasonable doubt."); (APP 179)(5/25/95: 181) (After hearing the arguments on the motions for judgment of acquittal, the court stated "I want to see what the jury does with it. Look, I must tell you, it's a very ...close case, and I'd like to see what the jury does with it."); (APP 231)(9/6/95: 37) (After hearing the arguments on Mr. xxxxxxx's motion for a new trial, the court suggested that had this been a bench trial, he might have reached a different result: "It was a very close case, extremely close."). In fact, it also appeared to be a difficult case for the jury since one of the notes sent to the trial court indicated that the jury was deadlocked. (APP 252).
While the evidence was overwhelming that drug dealing was occurring in the xxxxxxx's house, the evidence of Mr. xxxxxxx's involvement in that activity was extremely slim, and arose almost entirely from Mr. xxxxxxx's "connection" to bedroom #3 where drugs and money were found. Indeed, both the government and Mr. xxxxxxx agxxxxxxx that bedroom #3 was his room, and that he spent some nights in that room and some nights at his girlfriend's house. But, the defense contended that other individuals, including the four young men at the house on the night of the search, also used bedroom #3, and that they were the ones involved in drug dealing at that address. Accordingly, the issue of Mr. xxxxxxx's connection to the drugs was the central issue in the case, and given the equivocal evidence regarding whether Mr. xxxxxxx was either actually or constructively in possession of those drugs, the aiding and abetting theory provided a critical mechanism for the government to link Mr. xxxxxxx to the drugs.
Significantly, although the government began its case on the theory that Mr. xxxxxxx and Mr. xxxxxxx were in "exclusive control" of the third floor of 1123 First Terrace, by the time of closing the government had resorted to relying heavily on an aiding and abetting theory. In fact, the government's shift was so marked that the trial court, sua sponte, raised the issue with the government and issued a limiting instruction to the jury. In light of the weak nature of the evidence establishing actual or constructive possession of the drugs by Mr. xxxxxxx and given the government's heavy emphasis on aiding and abetting it its closing, the aiding and abetting instructions assumed critical importance in the case. Since Mr. xxxxxxx admitted that he knew that the drugs were being distributed by others at the home, the court's incorrect instruction, that Mr. xxxxxxx did not need to have the same intent as the principal drug dealer (i.e, the intent to possess and distribute the drugs), created a serious risk that the jury convicted Mr. xxxxxxx based on his admitted knowledge and on his presence without finding that he had the required specific intent.
The risk of the jury venturing down this prohibited path and convicting based merely on knowledge and presence was increased by other portions of the trial court's instructions and by the government's closing argument. First, although the court instructed the jury that mere physical presence was not sufficient to establish the defendant's guilt, it immediately followed that instruction with one which stated that "mere physical presence is enough if it is intended to help the principal offender and in fact does help him." (APP 221)(5/31/95: 51). Yet, in this case, the latter instruction, which only served to suggest that in some circumstances mere presence is sufficient to constitute aiding and abetting, should never have been given because the prosecution presented no evidence at trial that Mr. xxxxxxx's mere presence was somehow intended to aid the principals (whoever they were). See Redbook Instruction 4.02 (comment at page 226, collecting cases)check redbook citing.
Second, the aiding and abetting instruction and the general intent instruction, taken together, provided a potential basis for the jury to find other than the required specific intent because they informed jurors that they were permitted to infer that "a person intends the natural and probable consequences of acts knowingly done," (APP 219)(5/31/95: 44), and that "[a]n aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequences of the crime in which he intentionally participates," (APP 220-222)(5/31/95: 50-52).
Third, the court's bank robbery example further exacerbated the court's instructional error on the specific intent issue. The court properly informed the jurors that a person who drove a car away from the scene of a bank robbery could be guilty of aiding and abetting even if the person did not enter the bank. (APP 220-221)(5/31/95: 50-51). The court did not clearly instruct the jurors, however, that the driver could be found guilty only if he intended to aid the robbery; mere knowledge without intent to assist the criminal venture would not suffice for aiding-abetting liability. See, e.g., United States v. Bailey, 416 F.2d 1110, 1113 (D.C. Cir. 1969) (insufficient evidence to convict defendant as aider-abettor of robbery; "culpable purpose is essential").
Fourth, the closing argument of the prosecutor further invited the jury to convict on an improper basis. Although a significant portion of the government's closing was dedicated to aiding and abetting, there was no mention of the requirement that the aider and abettor had to have the same criminal intent as the principal offender. Indeed, the prosecutor suggested that far less was required:
Ladies and gentlemen, more important, aiding and abetting. ...[A]iding and abetting means that all you have to do is help. It doesn't have to be your business. It doesn't have to be your directly possessed drugs, as long as you're helping the business.
(APP 195)(5/30/95: 48) (emphasis added).
From the government's perspective, the best that can be said is that the aiding and abetting instructions were inconsistent with regard to this intent requirement. Earlier in the aiding and abetting instruction, the trial court did inform the jury that to be guilty of aiding and abetting Mr. xxxxxxx had to "participate in the crime as something he wished to bring about." (APP 221)(5/31/95: 51). To the extent that this language is understood to require that Mr. xxxxxxx had to have the same intent as the principal, it is completely inconsistent with the later instruction. In such circumstances, a reviewing court cannot presume that the jury followed the correct instruction. United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994)(citing Francis v. Franklin, 471 U.S. 307, 322 (1985)).
In Stein, which involved contradictory instructions regarding the knowledge requirement in a money laundering case, if the jury followed the later instruction, it could convict the defendant without finding, as was required by the statute, that he knew his predicate acts of fraud were unlawful. The court held that "[t]aken as a whole, the instructions omitted an element of the offense as surely as if the district court had failed to mention the element altogether." Id. at 1410.
Similarly in Rhone, which involved contradictory jury instructions, this Court reversed the defendant's conviction. Rhone was a mail fraud case arising from the defendant's claim for unemployment benefits. The defendant's sole defense was that she did not have the requisite criminal intent. Rhone, 864 F.2d at 834. There, as here, the trial court presented proper instructions regarding the intent element of the offense, but then contradicted those instructions by informing the jury that ignorance of the law was no excuse. Id. at 834. Although the government argued that other instructions required that the defendant possessed the requisite intent and that there was ample evidence of specific intent, the Court held that the error could not be considered harmless:
The jury in this case could well have inferred that the prosecution had met its burden of proving specific intent beyond a reasonable doubt simply on the basis that appellant was presumed to know the law and that she therefore knowingly committed fraud and theft. At the very least, the instruction confused the jury on the very central issue of intent.
Id. at 837. The Court further held that, where, as here, the error involves an "'instruction central to the determination of guilt or innocence, [it] may be fatally tainted by even a minor variation which tends to create ambiguity. *** A conviction ought not to rest on an equivocal direction to the jury on a basic issue.'" Id. (quoting United States v. Alston, 551 F.2d 315, 321 (D.C. Cir. 1976)); see also United States v. Rawlings, 73 F.3d 1145, 1148 (D.C. Cir. 1996) (where risk of juror confusion or of jury being misled as to elements of offense, this Court has reversed defendants' convictions).
Given the straight forward instruction to the jury that an aider and abettor need not have the same criminal intent as the principal, the existence of other instructions suggesting or implying that such an intent was required can not salvage the conviction in this case. The record provides an ample basis from which to conclude that the jury could have convicted Mr. xxxxxxx on an aiding and abetting theory, but it does not provide any basis from which to infer that, in so doing, this jury found the required intent element. Accordingly, this instructional error requires a reversal of Mr. xxxxxxx's conviction.
III.THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT A MISTRIAL DUE TO THE PREJUDICIAL HEARSAY TESTIMONY ADMITTED THROUGH DETECTIVE BELL.
Detective Derek Bell testified that Mr. xxxxxxx's mother, Ms. Annette xxxxxxx, told him on January 25th, when the search warrant was executed, that she had not known "that her sons were doing drugs upstairs." (APP 110)(5/16/95: 118). Although this extremely damning testimony was ultimately struck by the trial court, the damage from this hearsay could not be undone, and the trial court should have declared a mistrial.
A. Standard of Review
A trial court's refusal to grant a mistrial is reviewed under the abuse of discretion standard. United States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994). As this Court noted in United States v. Eccleston, 961 F.2d 955, 959 (D.C. Cir. 1992) (citation omitted), "[t]he decision whether to grant a mistrial generally rests within the sound discretion of the trial court, and the single most important factor in making that determination is the extent to which the defendant has been prejudiced."
B.The prejudice flowing from the hearsay evidence was substantial and was not cured by the court's curative instruction.
Where, as here, the evidence supporting guilt is not substantial, exposing the jury to prejudicial hearsay testimony, even when followed by a curative instruction, requires a reversal of the defendant's conviction. Eccleston, 961 F.2d at 955-56. Like the instant case, Eccleston involved a search warrant, drugs found in a bedroom, and the government's contention that the bedroom belonged to the defendant, Trevor Eccleston. Id. at 957. The hearsay at issue in that case was also from a police officer who testified that some individuals on the street nearby the home told the officer that "they were on their way to purchase crack cocaine from a subject named Trevor." Id. The Court held that reversal was required because the evidence "viewed in the light most favorable to the government, was just barely sufficient to sustain the verdict. The improper hearsay testimony of the police witness spoke directly to Eccleston's involvement in narcotics distribution." Id. at 955-56.
Here, too, the evidence against Mr. xxxxxxx, if sufficient at all, was just barely so. As set forth in the preceding subsection and as noted repeatedly by the trial court, at the very least, this was an "extremely close" case. (APP 231)(9/6/95: 37). Moreover, as in Eccleston, the hearsay statement went to the heart of the government's allegations that Mr. xxxxxxx and Mr. xxxxxxx were connected to the drugs which were found on the third floor. The prejudicial impact was magnified because the declarant in this case was Mr. xxxxxxx's mother, who the jury would have certainly assumed would have been likely to come to her sons' defense. Detective Bell's testimony suggested that Ms. xxxxxxx did not question the detective's decision to arrest her sons, and did not suggest that the detective was mistaken in attributing the drugs to her sons rather than to the other men on the third floor. Instead, the statement attributed to Ms. xxxxxxx implied that she believed that Detective Bell's decision to arrest her sons for the drugs was correct. In a case where Mr. xxxxxxx's defense was that the police erred in arresting him because the other men in his mother's home were the ones responsible for the drug activity on the third floor, the hearsay statement attributed to Mr. xxxxxxx's mother showing that she did not question that Detective Bell had arrested the right men on January 25th was extremely prejudicial.
As in Eccleston, the curative instruction here could not cure the prejudicial impact of the hearsay statement. Given the strong incriminating nature of the statement, there was an "overwhelming probability that the jury [was] unable to follow the court's instructions...and a strong likelihood that the effect of the evidence [was] 'devastating' to the defendant." Id. at 961 (citing Grer v. Miller, 483 U.S. 756, 766 n.8 (1987)).
IV.THE JURY FOREMAN'S FAILURE TO DISCLOSE HIS PRIOR CRIMINAL CHARGE ENTITLED MR. xxxxxxx TO A NEW TRIAL, OR IN THE ALTERNATIVE, TO A POST-TRIAL EVIDENTIARY HEARING
After the conclusion of the trial, it came to the attention of counsel for Mr. xxxxxxx that the jury foreman, Mr. John R. Rogers, failed to disclose, in response to the trial court's Ridley question on May 11, 1995, that he stood accused of a crime within the past ten years. Specifically, as the uncontradicted evidence introduced as part of Mr. xxxxxxx's motion for a new trial demonstrated, Mr. Rogers, in fact, had been charged with misdemeanor assault and that charge was not disposed of until August 1, 1985. (APP 262).
A.Standard of Review
Whether the district court erred in denying appellant's motion for an evidentiary hearing or a new trial is a mixed question of fact and law. The district court's factual findings are reviewed for clear error. United States v. North, 910 F.2d 843 (D.C. Cir. 1990). The district court's legal conclusion is reviewed for abuse of discretion. United States v. Lafayette, 983 F.2d 1102 (D.C. Cir. 1993).
B.Mr. xxxxxxx had a right to an impartial jury
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. The purpose of voir dire is to protect that important right by "exposing possible biases, both known and unknown, on the part of impartial jurors." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984). Under McDonough, 464 U.S. at 556, a new trial is necessary when a party demonstrates
that a juror failed to answer honestly a material question on voir dire, and . . . that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.
In other words, "an aggrieved party must show that the juror's correct response at voir dire would have demonstrated actual bias." United States v. North, 910 F.2d at 904.
In United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992), this Circuit considered whether an evidentiary hearing is required when it is revealed after trial that a juror concealed relevant information during voir dire. In Boney, a juror failed to disclose a prior felony conviction. The Court stated that while a juror's prior conviction does not per se mandate a new trial,
the juror's failure to disclose his status in response to the voir dire examination presents serious added concerns. After all, lying or failing to disclose relevant information during voir dire itself raises substantial questions about the juror's possible bias.
Id. at 634. The Court declared that lying about such a serious matter, and one as easy to verify through public records, "raises at least the inference that the juror had an undue desire to
participate in a specific case, perhaps because of partiality." Id. Given that the record provided no evidence that the motivation for the lie was unrelated to bias, the Court in Boney ruled that the trial court erred in failing to conduct an evidentiary hearing to determine whether the juror's failure to disclose the information resulted in actual bias. Id. at 634-35.
C.Mr. Roger's failure to truthfully respond to the Ridley question suggests that he was not impartial
The fact that the foreman of Mr. xxxxxxx's jury apparently was less than honest in his answers on voir dire is "the best initial indicator of whether the juror in fact was impartial." See McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring); see also United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984) ("Goad's dishonesty, in and of itself, is a strong indication that he was not impartial"). Mr. Rogers did reveal during voir dire that he had served on two prior juries, each time rendering a guilty verdict. This suggests that any partiality on the juror's part would not weigh in the defendant's favor. The information that Mr. Rogers failed to disclose about his own involvement with the law, coupled with information that Mr. xxxxxxx knew about the juror's two prior guilty verdicts, would have provided him with a valid challenge for cause. Further, the information that juror #1130 withheld, coupled with the known information about his prior jury service, would have allowed counsel intelligently to exercise a peremptory challenge to remove Mr. Rogers from the jury.
That a member of Mr. xxxxxxx's jury apparently was less than truthful when questioned about his own prior contact with the law provided a basis on which the Court should have granted Mr. xxxxxxx a new trial in this case, particularly given that the juror in question served as the foreman. At a minimum, the Court should have held an evidentiary hearing on this issue. See United States v. Boney, 977 F.2d at 634-35.
For the foregoing reasons, Mr. xxxxxxx's conviction should be reversed and a judgment of acquittal entered or, failing that, a new trial or, alternatively, an evidentiary hearing ordered.
FEDERAL PUBLIC DEFENDER
L. Barrett Boss
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
Counsel for Tyrone xxxxxxx
CERTIFICATE OF LENGTH
I hereby certify that the foregoing brief for appellant Tyrone xxxxxxx does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.
L. Barrett Boss
CERTIFICATE OF SERVICE
I hereby certify that on the day of April 24, 1996 I caused two copies of the foregoing Brief of Appellant Tyrone xxxxxxx's, together with the Addendum and the Appendix thereto, to be served by first-class mail, postage prepaid, upon:
John Fisher, Esquire
Chief, Appellate Division
Office of the United States Attorney
for the District of Columbia
555 - 4th Street, N.W.
Washington, D.C. 20001
L. Barrett Boss