Facts

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________

Nos. 96-3036, 3077, and 3129

_____________________________________

UNITED STATES OF AMERICA,

Appellee,

LOUIS Xxxxxxx,

RALPH T. Xxxxxxx,

and MARCELLUS Xxxxxxx,

Appellants.

__________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________________

JOINT BRIEF FOR APPELLANTS

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

[Reserved]

STATUTES INVOLVED

18 U.S.C. §§371, 924(c), 1512(a)(1(A), and 1513(a)(1)(B), and 22 D.C. Code §§2401, 3202, and 3204(b) are copied in the Addendum.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. §§1291 and 1294, as well as 18 U.S.C. §3742. The district court had jurisdiction pursuant to 18 U.S.C. §3231. The notices of appeals were timely filed. Louis Xxxxxxx was sentenced on September 10, 1997, and his notice of appeal was filed on September 12. Ralph Xxxxxxx was sentenced on , 1997, and his notice of appeal was filed on , 1997. Marcellus Xxxxxxx was sentenced on , 1997, and his notice of appeal was filed on , 1997.

STATEMENT OF THE CASE

A. Nature of the case.

Leroy Copeland, a Government informant, was scheduled to testify, on March 26, 1996, in the United States District Court for the District of Maryland, in an armed bank robbery case against James Xxxxxxx. On the evening of March 25, however, Copeland was shot and killed at the intersection of 5th and N Streets, N.W., in the District of Columbia. A year later, in March, 1997, appellants, Louis and Ralph Xxxxxxx, brothers of James Xxxxxxx, and Marcellus Xxxxxxx, were tried before the Honorable Norma Holloway Johnson on charges arising out of Copeland's murder. All three were found guilty as charged. In September, each was sentenced to life imprisonment plus a term of years. These appeals followed.

B. Course of the proceedings below

Appellants were indicted on September 19, 1996. All three appellants were charged with conspiracy to kill a federal witness in violation of 18 U.S.C. §371, killing a federal witness, in violation of 18 U.S.C. §1512(a)(1)(A), retaliation against a federal witness in violation of 18 U.S.C. §1513(a)(1)(B) and (2) (sic), and first degree murder while armed in violation of 22 D.C. Code, §§2401 and 3202. Appellant Louis Xxxxxxx was also charged with using a firearm in the course of killing a federal witness in violation of 18 U.S.C. §924(c)(1), using a firearm in the course of retaliating against a federal witness, also in violation of 18 U.S.C. §924(c)(1), and possession of a firearm while committing the crime of murder, in violation of 22 D.C. Code, §3203(b). Motions were heard in late January and early February, 1997. The case was tried before Judge Johnson and a jury between February 28 and March 21, 1997, on which day the jury found the appellants guilty on all counts. On September 10, 1997, appellant Louis Xxxxxxx was sentenced to life imprisonment plus two consecutive terms of five years. Appellants Ralph Xxxxxxx and Marcellus Xxxxxxx were each sentenced to life imprisonment on ________ and _________, respectively. These appeals timely followed.

C. The Trial

EVIDENCE INTRODUCED AT TRIAL

The government's evidence was that Leroy Copeland , a government informant , was shot and killed at the corner of 5th and N Streets N.W. D.C. on March 25, 1996 by a person who walked up behind him and then fled by foot. Louis Xxxxxxx ( AKA Spud ) was identified in court by three government witnesses, as the person who did the shooting : Karl Timothy Carrington, Glenn Young, and Kevin Eddings as Louis Xxxxxxx .(4-18-19 Carrington);( 5-30-35 Young); ( 6-101 Eddings). Kirk Thomas, a fourth government witness, was unable to identify anyone in court (6-22-38) but he was impeached with his Grand Jury Testimony which identified Louis Xxxxxxx and that was entered into substantive evidence. Gov't Exhibit 48A. App.___.

Three of these eyewitnesses were admitted drug abusers and were using at the time of their observations.( Carrington 4-36; Young 5-51,69; Thomas 6-69 ). The same three were going through withdrawal at the time they were questioned by the police and made identifications.( Carrington 4-78 ; Thomas 6-28-29, 67-70; Young 5-62,75-76,78 ) Three of the eyewitnesses were also convicted felons ( Carrington 4-34 ; Thomas 6-66 Eddings 6-93 ) and three received immunity or had hopes of receiving some benefit from cooperating with the government. ( Thomas 6-10-12 ;Carrington 4-34-35 ; Young 5-66) . Glenn Young and Kirk Thomas had their own motives for killing Copeland who had robbed them in the past as admitted by Kirk Thomas. 6-70,84-85. . There was also evidence that the identifications by Tim Carrington and Kevin Eddings were tainted. Carrington testified he didn't see the full face of the shooter and he did not know the name of the shooter until he was told by Detective Will. 4-58, 76-77. In the case of Kevin Eddings, there was evidence that his identification was tainted by a suggestive photo array and discussions with Tim Carrington, who told him the name of the shooter. 6-124. Eddings had actually identified Kirk Thomas by his description to the police of a person he had seen earlier in the evening sitting with Glenn Young at the Bundy playground as the same man who shot Leroy Copeland. 6-149-151. The statement of Eddings disclosing this fact was revealed to the defense for the first time mid trial on the eve of Eddings and Thomas's testimony. See Stipulation._____.

Glenn Young was impeached with several inconsistent statements by Special Agent Regini regarding his numerous prior descriptions of the shooter and the sequence of events.. 5- 55-60,64,74, 8-135-146. He was also impeached with Kirk Thomas's admission that he had previously been robbed by Copeland. 6-70,80-85.

With regard to the motive for the shooting, the government presented evidence that Ralph Xxxxxxx was told on March 20, 1996 by James Xxxxxxx's lawyer ( Steve Jacoby ) that Leroy Copeland would be a key witness against his brother James "Toe" Xxxxxxx in a trial for a postal robbery scheduled for March 26, 1996.. Jacoby played for Ralph Xxxxxxx portions of an incriminating conversation between James " Toe" Xxxxxxx and Leroy Copeland which was taped surreptitiously by Copeland in prison. 3-121-125. Despite the limited proof of what portions of the tape were played for Ralph Xxxxxxx and over defense' pretrial and trial objections, the court allowed the government to play virtually all of the highly prejudicial and inflammatory tape for jury. The tape implicated the defendants in other crimes and depicting them in a brutal fashion as a " family run organized gang", "beasts", bank robbers who were willing to " mash" anyone who might harm them. 2A-2-24, 2B-18-43, 3-2-4,3-28-31, 3-102-131, 3-182-215, 4-13,4-132.

On the issue of a conspiracy, the government presented evidence that on March 20, 1996 according to Kirk Thomas, Ralph Xxxxxxx asked Thomas to go into an "oil joint" to locate Copeland. 6-54-56. Kirk was unable to find him and told Ralph so. Id. Another government witness, Stephen Hamilton, testified that on Monday March 25, 1996, he bought some heroin for Leroy Copeland and himself in the area of 5th & N Streets, N.W. at 12 noon. 5-156. While in the area he saw Marcellus Xxxxxxx who he knew from the neighborhood. Id. He also testified that ten minutes later he saw both Louis and Ralph Xxxxxxx riding around the neighborhood in a car with guns and that they asked him who was the guy he was with. At the time he thought they were referring to someone other than Leroy Copeland but at trial he testified that he realized afterwards that they were looking for Copeland. 5-158-160.

Steve Hamilton also testified that the day after the shooting he was talking to Marcellus Xxxxxxx and Xxxxxxx said the night before " he went and got them (the Xxxxxxxs) and told them Copeland was around there." 5- 178. Steve Hamilton was impeached in the defense case regarding the time of his 12 noon meeting with Leroy Copeland and his observations of Ralph Xxxxxxx. According to Detective Will and Special Agent Bamel Copeland was with them between 10 am and 2 pm . 2A-25. Kevin Leary also testified for the defense that the employment records of Ralph Xxxxxxx showed that he was working from 12 to 4 pm on March 25, 1996. 8-167-178.

The government also presented evidence that on the evening after the shooting, Keith Xxxxxxx, James Xxxxxxx's son, called Ralph Xxxxxxx from prison and in a taped conversation, in response to a general question about how James Xxxxxxx's case was looking , Ralph said : " ...things are looking better now" ._____. This remark was explained when the defense recalled in its case Attorney Steve Jacoby who testified that when he met with Maxine and Ralph Xxxxxxx and there was no discussion of Copeland's whereabouts. Jacoby told them that, because of Copeland's lengthy record and the benefits he was receiving from the Government in return for his testimony, Jacoby looked forward to having Copeland as a witness on the stand. Later, when Jacoby told Ralph Xxxxxxx that Copeland had been killed, Ralph appeared shocked. 8-156-166.

Kirk Thomas testified that when he saw Marcellus Xxxxxxx on N Street he mentioned that Glenn Young told him he had just seen Leroy Copeland. 6-.65. He then walked up to 5th and N where he joined Glenn Young and Tim Carrington, another government eyewitness. He did not see if Marcellus Xxxxxxx followed him or where he went but he did see him on the corner of 5th and N a short time later. 6- 88.

Copeland approached Carrington, Young and Thomas on 5th Street from O Street. 5- 28. Carrington said Copeland argued with Glenn Young and was shouting loud enough for those in the area to hear him say "if anybody is looking for me here I am." 4- 97-99. Young testified that Copeland was talking to Kirk Thomas, not him. 5- 90 . Kevin Eddings testified that although he initially falsely said it was the man he identified as the shooter of Copeland that argued with it Copeland , was actually "Head" ( Young ) that was having words with Copeland and that Copeland was telling Head that he wasn't hot, that "if he killed him, they would be killing the wrong person." 6- 99. Young admitted he walked away from Copeland because he knew he was hot. 5-91.

Tim Carrington recalled that Copeland called out to Marcellus Xxxxxxx looking for a ride and walked across 5th Street to meet Marcellus. 4-17. He acknowledged that he never saw Marcellus point Copeland out or go anywhere to alert anyone. 4-100. However, he did see Marcellus run away from Copeland while shots were still being fired by another person .

Glenn Young testified that the day after the shooting he was talking to Marcellus Xxxxxxx and Xxxxxxx said that after he talked to Kirk he had gone down to New York Avenue, that there wasn't anybody home but "Spud" ( AKA Louis Xxxxxxx ) and that he told him that the dude - Leroy Copeland - was in the area. 5- 42-43. On cross-examination he acknowledged that although he had been questioned by the police on several occasions between April 4,1996 and April 25, 1996 he did not mention the statement by Xxxxxxx about going tot New York Avenue . 5-80. Moreover, he acknowledged he did not mention the statement in the Grand Jury..5-82. Finally, he acknowledged that in a subsequent effort to get Marcellus Xxxxxxx to say something incriminatory while he (Young) was wearing a body wire, Xxxxxxx denied that he knew that Copeland was going to be shot ( ie: "what was going to be happening" 5-92).

The defense through Louis Xxxxxxx called Terence Gilmore Blair and Christine Huff as eyewitnesses to the events immediately after the shooting. He testified that he was standing in a crowd near the body of Copeland immediately after the shooting when a guy with a gun in his waist came up behind him. When the defense attempted to elicit that Blair heard the man say, "That's going to teach niggers don't mess with our business," the government objected. The court rejected the defense argument that it was admissible because against his penal interest. 8-71-78. The court also disallowed testimony that Blair was an informant who passed this information on to the FBI shortly after the shooting but the FBI had done nothing with it. 8-84-98.

Christine Huff, an eyewitness located on the eve of trial through Terence Blair, testified that she saw three guys coming from around the corner of 5th and N and one of them, described as five feet five in his early twenties with a dark complexion shot Copeland. 8-107-110. In light of the court's ruling with regard to Blair, the defense was unable to elicit testimony about how she was located by the defense. The government took unfair advantage of that limitation by proceeding in rebuttal by Agent Kossler to challenge Huff's credibility and making it appear to the jury that she was a shill for the defense. 9-12-15.

SUMMARY OF ARGUMENT

At the outset of the case, even before opening arguments, the defendants' presumption of innocence was prejudiced by the trial court informing the jury panel that it was anonymous and that in order to insure the integrity of the jury even court did not know their names. This was precipitated by an 11th hour motion by the government relying principally on the nature of the offense for making their showing of a " strong reason to believe" that the jury needed protection. The jurors were also unfairly prejudiced against the defendants based on the erroneous admission of a secretly taped jailhouse conversation with James Xxxxxxx and the deceased, Leroy Copeland. Although the alleged basis for the admission of the tape was to show the motive of the Xxxxxxx brothers to silence Copeland prior to testifying in a trial of their brother James, the judge allowed the government to use a lengthy inflammatory tape to fan the flame of prejudice against the defendants. The tape implicated the defendants in other crimes and depicting them in a brutal fashion as a " family run organized gang", "beasts", bank robbers who were willing to " mash" anyone who might harm them. The court committed error in admitting the tape despite lack of proof that the defendants had heard those portions of the tape at issue and the fact that the prejudicial effect outweighed any marginal probative value the tape may have had on the issue of motive.

The defendants were denied their Sixth Amendment right to present a defense when the trial court unfairly prevented them from eliciting relevant evidence that others had motive and opportunity to murder Leroy Copeland and that he was providing evidence to the government against approximately 10 different people who were fugitives at the time of his death. Moreover, shortly before the beginning of trial the government had disclosed to defense a statement from a government informant was that a man, other than the defendants, stood over the decedent after the shooting and with a gun visible in his waist-band said: "..that is going to teach niggers don't mess with our business" . The court erroneously granted the government's motion to prohibit the defense from eliciting the statement that the defense argued was admissible as against penal interest and disclosing to the jury the manner and timing of its disclosure to the defense and the police failure to follow-up on the tip. Similarly, the defendants offered the testimony of an eyewitness who the defendants learned the name of from the informant and who was located by the government on the eve of trial. This eyewitness identified three young men as the shooters of Leroy Copeland. The defense was also erroneously limited in its presentation of that witness's testimony as well.

The defendants were also substantially prejudiced by the government's failure to disclose clear exculpatory evidence in a timely manner. It waited to disclose the evidence on the eve of the witness's trial testimony as " jenks ". The exculpatory evidence was contained in the police statements and grand jury testimony of Kevin Eddings who identified by description, a key government witness, Kirk Thomas, as the killer. He also reported a statement made by Copeland moments before the shooting to another key government witness ( Glenn Young ) to the effect of " if he [ Glenn Young] killed him [Copeland] they would be killing the wrong person". The fact that this Brady information was only disclosed on the eve of the witness's testimony as " jenks" clearly deprived the defense of a meaningful opportunity to use this information.

At the end of the case the court shifted the burden of proof on the defense when it erroneously gave an instruction on credibility of witnesses, directing the jurors to resolve conflicts in testimony by telling them " to determine where the truth lies". Thus, rather than focusing on whether the government had proven its case beyond a reasonable doubt, the focus was shifted to the evaluation of the credibility of the defense versus the government witnesses. The cup de gras occurred when the trial court over defense objection gave the jury transcripts of the key government witnesses testimony and refused to also supply transcripts of defense witnesses.

I. THE ADMISSION OF A TAPE OF HIGHLY-PREJUDICIAL OUT-OF-COURT STATEMENTS, WITHOUT A PROPER FOUNDATION, TO PROVEMOTIVE, VIOLATED DEFENDANTS’ RIGHT OF CONFRONTATION, AND WAS REVERSIBLE ERROR.

A. Standard of Review

The district court’s determinations of relevance and admissibility of evidence are reviewed for abuse of discretion. United States v. Warren, 42 F.3d 647, 655 (D.C. Cir. 1994); United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994); United States v. Garrett, 959 F.2d 1005, 1008 (D.C. Cir. 1992). Since the admission of the tape statements implicated the defendants’ Sixth Amendment confrontation rights, the government bears the burden of proving that the admission was harmless beyond a reasonable doubt. O’Neal v. McAninch, 115 S. Ct. 992, 995 (1995); Chapman v. California, 386 U.S. 18, 24 (1967).

B. The Challenged Evidence

Prior to trial, the government notified the defense that it intended to introduce at trial a tape-recorded conversation between Leroy Copeland and James “Toe” Xxxxxxx, which occurred at a District of Columbia prison facility in Lorton, Virginia, in July, 1995. A copy of the tape and of a transcript were provided to counsel.

The tape was replete with talk of crimes allegedly committed by James Xxxxxxx and his brothers Ralph and Louis Xxxxxxx. There was a discussion of “capers,” in which Xxxxxxx admitted to a number of bank robberies, and said that his brother, “Spud,” “always drive with me.” A. ___, 9-10. Xxxxxxx claimed that an unspecified brother was “hustling.” Id., 13. He boasted that, “All the Xxxxxxx brothers, boy, are beasts.” Id., 24. He referred to his family as, “the Xxxxxxx gang,” and said, “It’s going to be a family-run organized gang. Guess who’s the leader?” Id., 25. He then related that, “Aye, aye, they said we was robbing banks, and we was robbing banks. . . . “ Id. When Copeland asked Xxxxxxx whether a former accomplice would harm him, Xxxxxxx responded, “Not really, cause my brother would mash ‘em all. We got, we got ‘em under heavy scrutiny, baby.” Id., 26.

On the morning of the first day of trial, the government filed a motion to admit the tape-recorded conversation, contending that the entire tape was played for Ralph Xxxxxxx by James Xxxxxxx’s lawyer, Steven Jacoby, on the Wednesday before Copeland was killed, and that Ralph Xxxxxxx then had a motive to eliminate Copeland as a witness against James Xxxxxxx in an upcoming postal robbery trial and as a potential witness against Louis Xxxxxxx and himself. Id., 203; 2A/64; 2B/22, 37, 41.

The defense position was that only so much of the tape as was actually played for Ralph Xxxxxxx was admissible on the government’s motive theory, that the tape was highly prejudicial, especially because it contained references to crimes and bad acts by the Xxxxxxx defendants, and that the prejudicial impact of the tape outweighed any probative value it might have. The defense pointed out that the government had already introduced into evidence the letter which the Maryland prosecutor sent to Jacoby spelling out Copeland’s role in the case and his expected testimony, and argued that the tape was cumulative. 1/198-204; 2/21; 2B/19-20, 24-29, 33-34. Although stressing that only those portions of the tape that were actually heard by Ralph Xxxxxxx were relevant, 2A/63; 2B/41-42, the court determined to admit the tape, without first hearing from Jacoby as to which sections of the tape he played during the meeting with Ralph Xxxxxxx, finding that the tape was

“relevant and goes directly to the heart of this case, why Louis and

Ralph Xxxxxxx would have intense animosity toward Leroy Copeland

as alleged by the government. The recorded conversation establishes

that Copeland was a Government informer, that Copeland used his

friendship with James Xxxxxxx to his advantage, that Copeland had

successfully obtained incriminating information from James Xxxxxxx

that might be used by law enforcement against James Xxxxxxx, and

that Copeland had attempted and to some extent succeeded in

obtaining incriminating information that might be used by law

enforcement against James Xxxxxxx’s brothers.”

3/2-3. Citing Old Chief v. United States, 117 S. Ct. 644, 653 (1997), the court found that the tape was not cumulative, because it “tells ‘a colorful story with descriptive richness,’” which was absent from the prosecutor’s letter, Id., 3. The court concluded that “[o]nly as the pieces of the conversation come together can the jury infer, if it deems it appropriate, its cumulative effect on Ralph Xxxxxxx and Louis Xxxxxxx.” Id. The only portion of the tape that the court excluded was a reference to a homicide. Id., 4-5.

In spite of its ruling, the court determined that

“. . . it is going to be best for us to hear from Mr. Jacoby before

we attempt to hear this tape. I just want to know a bit more

about what Ralph Xxxxxxx heard than I am able to determine

from the testimony of the first witness. And I may have to change

my ruling. I doubt it, because I think the substance is what I have

ruled on. But we may have to change the tape to an even greater extent.”

Id., 5.

Steven Jacoby, James Xxxxxxx’s lawyer, testified that he received the tape recording of Copeland’s July, 1995, conversation with Xxxxxxx, and a transcript of the tape, as discovery from the prosecutor in the Maryland case. 3/104, 105, 107. He did not provide a copy of the tape or the transcript to James Xxxxxxx. Id., 108, 127-28. He reviewed the transcript with his client at a meeting on March 21, 1996, but he did not play the tape for him. Id., 127-28, 132, 146.

On March 20, 1996, Jacoby met with Maxine Xxxxxxx, James Xxxxxxx’s wife, and with Ralph Xxxxxxx, at his office. Id., 108-09. He recalled that during the meeting, he played the portions of the tape that “that relate to page 11 of the transcript . . . the portion that reflects most -- allegedly reflects the Post Office armed robbery . . . .” Id., 121. He did not show the Xxxxxxxs the tape transcript, or give them a copy of it. Id., 124, 140. He recalled reading from the transcript or playing sections of the tape that were peculiar to James Xxxxxxx’s identity, specifically, references to their son, Keith, and a reference to the “Xxxxxxx Gang,” to permit Maxine Xxxxxxx to determine whether it was her husband’s voice on the tape. Id., 123-25.

After Jacoby’s testimony, the court revisited the issue of the admissibility of the tape. The government admitted that “ . . . Mr. Jacoby cannot identify with specificity which portions [of the tape] he played and which portions of the transcript he read,” but argued nonetheless that Jacoby had presented sufficient testimony to lay a foundation for the admission of the entire tape as motive evidence against the defendants. Id., 182-83. 204. The defense argued that the government had not met its burden of showing that Ralph Xxxxxxx heard the tape so as to permit its introduction to show motive, and that if it was admissible at all, only the portions specifically referred to by Jacoby were relevant, that is, the portions reflected on page 11 of the transcript, or those that specifically identified James Xxxxxxx as the speaker, such as a reference to his son, Keith, and the reference to the “Xxxxxxx Gang.” Id., 185-86, 193, 195, 197, 200-201.

The court agreed that “if Ralph Xxxxxxx didn’t hear it, then it’s not of any value.” Id., 199. Nevertheless, the court reiterated its earlier determination to admit the entire tape, except for the reference to the homicide. Id., 215 - 216. After the tape was played for the jury, the court instructed that:

Now, ladies and gentlemen, you may not consider these tape-

recordings for the truth of the matters contained therein. You

may consider this evidence only for the limited purpose of

deciding whether the defendants had a motive to commit

the offenses charged in the indictment. You may not

consider this evidence for any other purpose.

Id., 132.

During closing argument, the government speculated that as Ralph Xxxxxxx listened to the tape, and as Copeland’s betrayal of his brother James unfolded, Ralph formed a motive for his involvement in the conspiracy to murder Copeland. 10/54-55. In his rebuttal argument, the prosecutor argued that the tape showed that Copeland was a potential witness against Ralph and Louis Xxxxxxx in other crimes, and that the tape provided a motive for them to protect themselves and James from Copeland. 11/36,42. The prosecutor repeated the portions of the tape in which James referred to the Xxxxxxxs as “beasts,” and as a “gang,” and stated that “we was robbing banks.” Id., 36.

In its final instructions, the court reiterated the limiting instruction it gave after the tape was played to the jury. Tr. 3-14-97, p.m. session, 19.

The district court admitted this entire tape, approximately 45 minutes in length, replete with references to crimes committed by James Xxxxxxx and his brothers, and filled with profanity, ostensibly to show that Ralph Xxxxxxx had a motive to kill Leroy Copeland. The court repeatedly emphasized that the tape had no relevance unless Ralph Xxxxxxx had heard the tape, and explicitly rejected the government’s alternative theories of admissibility, that the tape was a co-conspirator statement and that the fact that James Xxxxxxx had the transcript read to him meant that the defendants were aware of the tape’s contents.

The court’s ruling that the tape was admissible constituted an abuse of discretion, because it was based upon an erroneous interpretation of the foundation evidence presented by the government. The government failed, through any witness, to show that Ralph Xxxxxxx heard more than snippets of this tape. There was no evidence that codefendants Louis Xxxxxxx or Marcellus Xxxxxxx ever heard any portion of the tape, read the transcript, had the contents of the tape summarized for them, or otherwise were informed in any way of the conversations on the tape.

Clearly, it was the government’s burden to demonstrate that the evidentiary foundation existed to support the admission of the tape. Relevance conditioned on a particular fact is governed by FED.R.EVID. 104(b), which provides:

“When the relevance of evidence depends upon the fulfillment

of a condition of fact, the court shall admit it upon, or subject

to, the introduction of evidence sufficient to support a finding

of fulfillment of the condition.”

The role of the trial court is to examine all the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence. Huddleston v. United States, 108 S.Ct. 1496, 1501 (1988). In the instant case, the conditional fact, by the court’s own definition, was that Ralph Xxxxxxx heard the tape that was admitted into evidence. The government failed to produce sufficient evidence from which a reasonable jury could find that he did, by a preponderance of the evidence, or indeed by any other standard. The tape evidence was therefore inadmissible. The court’s obligation, given the failing in the government’s proof, was to strike the evidence.

See United States v. Matta-Ballesteros, 71 F.3d 754, 767-68 (9th Cir. 1995) (district court properly excluded defense evidence, relevant only upon a showing that a certain marriage and birth did not take place in Guadalajara, when defendant’s evidence of the absence of such records related only to four of many municipalities in that area and the defendant failed to show that the events at issue occurred in one of those four municipalities), cert. denied, 117 U.S. 965 (1997); Sorensen v. Shaklee Corp., 31 F.3d 638, 6648 (8th Cir. 1994) (expert testimony proffered by plaintiffs as to the hazards of a certain chemical was properly excluded because the plaintiffs could not demonstrate that the alfalfa health food tablets taken by their parents before their births contained residue of the chemical, which plaintiffs claimed caused their mental retardation); Tate v. Robbins & Meyers, Inc., 790 F.2d 10, 12 (1st Cir. 1986) (1980 products manual offered into evidence by plaintiff was properly excluded because not relevant to plaintiff’s theory of continuing duty to warn, absent showing that the defendant knew that the plaintiffs possessed a certain model of the product; plaintiff’s witness had no specific recollection of having so informed company).

In the district court, the defense argued that even if the tape was relevant, it should still be excluded as more prejudicial than probative under FED.R.EVID. 403. Citing Old Chief v. United States, 117 S.Ct. 644, 652 (1997.) 1-198, 202; 2B, 24-25, 34. The court abused its discretion in determining that the probative value of the tape outweighed its prejudical impact. The defense offered to stipulate that defendants were aware of the identity of Leroy Copeland and his role in the prosecution of James Xxxxxxx, to avoid the introduction of the tape. Moreover, the defense pointed out, the government had compelling evidence of his role and the defendants’ knowledge of it, in the discovery letter turned over to Attorney Jacoby by the prosecutor, which identified Copeland as an informant and a government witness against James Xxxxxxx. The availability of other means of proof, such as a stipulation and the discovery letter in the instant case, is a factor to be considered in the 403 balancing the court must conduct. See, United States v. Crowder, ___F.3d___ (May 1, 1998), slip op., 16-17; Advisory Committee’s Notes on Fed.Rule Evid. 401, cited in Old Chief v. United States, 117 S.Ct. 651.

The district court concluded that the government was entitled to admit the tape, despite these other available alternatives, because the tape told a “ colorful story with descriptive richness,” citing to Old Chief. 3/3. However, the story told by the tape, however colorful, was irrelevant because the alleged conspirators never heard it. Moreover, the “story” included violent crimes committed by James Xxxxxxx and the roles he attributed to his brothers in those and other crimes. Therefore, even if the tape had some marginal relevance, the “descriptive richness” was extraordinarily prejudicial to defendants and should have been excluded.

This case is very similar to United States v. Shelton, 628 F.2d 54 (D.C. Cir. 1980), where this court reversed a conviction because the prosecutor established on cross-examination of the defendant and a defense witness that they frequented the area where the crime took place, a known drug area, and were unemployed, and that when stopped by police, the witness had $2,600 in a suitcase in the trunk of his car. This court found that line of inquiry to be irrelevant, and concluded that the prosecution had

by innuendo, . . . painted a picture of Clifton Duke and David Shelton

as seedy and sinister characters. The picture showed two unemployed men

possessed of a large sum of money, driving in a car which was the subject

of an investigation by the Drug Enforcement Administration. And, lest the

jury miss the point, the prosecutor directed no fewer than four questions

at Duke that were designed to show that he frequented the area of 14th

and T Streets, N.W., a known center for narcotics activity. We cannot

avoid the conclusion that, in a case the essence of which is common

law assault, the prosecutor sought to persuade the jury that the defendant

and one of his principal witnesses were members of the drug underworld

involved in all sorts of skullduggery.” Id.., 56-57.

Because the government proceeded by innuendo rather than by direct evidence, the court found this scenario even more prejudicial, since the defendant was less likely to be able to refute the evidence, and the jury was more apt to draw an improper inference. Id., 57. See also United States v. Reyes, 18 F.3d 65, 69 (2d Cir. 1994) (non-hearsay evidence detailing course of investigation of defendant should have been excluded as more prejudicial than probative).

The admission of this tape in its entirety, without the proper evidentiary foundation, deprived defendants of their right to confront and cross-examine adverse witnesses against them, as guaranteed under the Sixth Amendment to the United States Constitution. The basic purpose of the Confrontation Clause is to promote the “` integrity of the fact-finding process.’” Coy v. Iowa, 487 U.S. 1012, 1020 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 736 (1987)). The confrontation right is implemented through an accused’s right of cross-examination, “the greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158 (1970). Thus, “the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405.

Through this tape, the Xxxxxxx defendants were painted as bank robbers, enforcers, drug dealers, “beasts.” The defense was powerless to confront and counter any of these very damaging characterizations. The defendants were deprived of a fair trial by the admission of the tape, and because the government cannot demonstrate, as it must under Chapman and its progeny, that the error was harmless beyond a reasonable doubt, they are entitled to a new trial.

II. THE WITHHOLDING OF BRADY MATERIAL DEPRIVED APPELLANTS OF A FAIR TRIAL.

A. The standard of review.

When reviewing to determine whether evidence has been withheld in contravention of Brady v. Maryland, 373 U.S. 83 (1963), the issue is whether it is reasonably probable that, had the undisclosed information been made timely available to the defendant, there would have been a different result. Kyles v. Whitley, 514 U.S. 419, 421 (1995); United States v. Bagley, 473 U.S. 667, 682 (1985). The determination of materiality for purposes of Brady is fact-bound and so committed to the trial judge in the first instance. United States v. Lloyd, 71 F.3d 408, 411 (D.C.Cir. 1955). However, once the facts are established, the question whether non-disclosure violates a defendant's Brady rights is an issue of law and so reviewed by this Court de novo. Id.

B. The material withheld.

In October, 1996, Xxxxxxx filed a motion to compel discovery pre-trial invoking his rights under Brady, and asking specifically, "11. Whether any informant or witness has made contradictory or inconsistent statement[s] relative to this case or any related case, and the substance of those statements." R. . In December, 1996, the Government opposed, arguing inter alia, (1) that it was entitled to protect its witnesses, (2) that Jencks material should be produced as required by the Jencks Act, 18 U.S.C. §3500, and (3) as to para. 11, the only responsive information was that one witness had recanted that the man who shot Copeland had exchanged words with him just before the shooting, R. .

On March 6, 1997, however, some five months after the filing of Xxxxxxx's motion and the evening before the presentation of the testimony of Kirk Thomas and Kevin Eddings, the Government turned over, previously recorded statements of Thomas and Eddings that were within the scope of Xxxxxxx's request. Thomas's grand jury testimony revealed that Ralph Xxxxxxx had allegedly told him that Xxxxxxx was looking for Copeland because Copeland was going to testify against, not only Toe, but also, "Peabody," that is, Leo Gonzales Wright. 6-4, 55. Defense counsel, objected to the timing of this release of Brady material. 6-6. Two relevant prior statements of Eddings were turned over. In April, 1996, Detective Will took down a statement from Eddings, in which Eddings said that shortly before the murder he and Copeland had run from a man near Bundy playground, that Copeland had than argued with the same man at 5th and N, and that shortly thereafter that man had shot Copeland. R. . In May, 1996, Eddings testified at grand jury that the man who had caused them to run had been with "Head" at Bundy playground. R. .

Testimony the next day not only identified Thomas as the man from whom Copeland had run at Bundy playground, but showed that Thomas had a motive to kill Copeland. Eddings testified that he and Copeland had seen two men together at Bundy playground including "Head", who walks with a limp. 6-95. Eddings and Copeland had run from Head's companion when he made a quick movement, 6-142, and it was the companion who had shot Copeland, 6-151. Young testified that he walked with a limp and had been known as "Head", 5-22, that Thomas had been with him near Bundy playground that evening, and that Thomas had run as soon as Copeland arrived on the scene, 5-25-26. Further, Thomas testified that he was on the scene of the murder, 6-21, and that Copeland had previously robbed him, 6-70, 84-85.

C. The withholding of Brady material should undermine the Court's confidence in the verdict because it deprived appellants of their most promising defense.

The Court reviews here to determine whether the net effect of all the evidence withheld by the Government in this case raises a reasonable probability that its disclosure would have produced a different result. Kyles, 514 U.S. at 421. "A 'reasonable' probability is probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. The effect of these two suppressions of evidence are to be considered cumulatively because "the established rule [is] that the state's obligation under Brady ... to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government." Kyles, 514 U.S. at 421. Nor does it make any difference to the Court's analysis whether a specific request was made for the evidence, although one was in fact made here. In Bagley, the Supreme Court "disavowed the distinction between the ... "specific request" and "general-or- no-request" situations." Kyles, 514 U.S. at 433. It is also clear that Brady disclosure must be made "at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure." United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976); see also, United States v. Starusko, 729 F.2d 256, 261 (3d Cir. 1984). Finally:

[T]he more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist and to make pre-trial and trial decisions on the basis of this assumption ... [T]he reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defense case ... in light of the totality of the circumstances and with awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response.

Bagley, 473 U.S. at 682.

Armed with these principles, it is clear that the investigation and conduct of the trial would have been entirely different had timely Brady disclosure been made of Thomas's and Eddings' statements. The withholding of Thomas's statement about Wright, who apparently has been convicted of another murder, 6-3-4, deprived the defense of a plausible investigatory lead. The withholding of Eddings pre-trial statements deprived the defendants of their most obvious defense.

If the defense had had the withheld Brady material in advance of trial, it could have mounted a unified defense that Thomas had committed the murder and was protected by Young and Carrington. The defense would have investigated the close relationship and drug dealings of Thomas, Young, and Carrington, who might have had a different source of drugs than the Xxxxxxxs and wished to protect their turf from Copeland. The defense would have also have focussed on the argument in the street between Thomas, Young, and Copeland. Certainly, Copeland's statement to Young, as quoted by Eddings, "If he killed him, they be killing the wrong person," 6-99, suggests he thought that Young and others with him were going to shoot him. Eddings' earlier statement to the government, which was not disclosed, indicated that Copeland had said this to Thomas. R. . Either way it clearly exculpated Louis Xxxxxxx and should have been revealed pre-trial.

The three arguments proffered by the Government to the district court should be rejected. No doubt the Government has an interest in protecting its witnesses, but surely that interest does not extend to protecting a witness's identity when one of the other witnesses on which the Government itself chiefly relies identifies the first witness as the murderer. Production of documents pursuant to the Brady doctrine is a Constitutional requirement which cannot be superseded by the Jencks Act. Finally, it is clear that as of the time the Government filed its opposition in December, 1996, it had, contrary to its response to Xxxxxxx's request in para. 11, inconsistent statements recorded earlier in that year.

Given "the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response," the Court must lack "confidence" that the verdict in this case was correct. Bagley, 473 U.S. at 682.

III. THE TRIAL COURT’S REFUSAL TO ALLOW THE DEFENSE TO DEVELOP THE EVIDENCE THAT OTHERS HAD COMMITTED THE MURDER DEPRIVED APPELLANT’S OF A FAIR TRIAL.

A. The standard of review.

The district court has wide discretion to admit or exclude evidence that someone other than the accused committed the crime. However, this Court will find that such discretion has been abused where it "plainly appears that the excluded evidence bears on a matter that could be determinative of guilt or innocence." United States v. Morgan, 581 F.2d 933, 936 (D.C.Cir. 1978). In addition, where, as here, excluding the evidence deprives the defendant of his defense, his Sixth Amendment right to present a defense is implicated and appellate review is de novo. See Crane v. Kentucky, 476 U.S. 683 (1986); Chambers v. Mississippi, 410 U.S. 284 (1973).

B. The evidence that could not be developed.

The issue arose with the very first Government witness, Agent Bamel. Bamel testified on cross-examination that Copeland was providing information in approximately ten other fugitive cases. 2A-48. However, the district court would not allow counsel to establish who these other ten were and refused a proffer of the names at sidebar. 2A-48-51.

The problem arose again with two of the witnesses in Louis Xxxxxxx's case. Terence Blair testified that he talked to the people left behind at the scene of the crime and that "some guy" came up behind him and said that "he glad it happened." 8-71-74. The guy "looked like" he had a gun in his waist. 8-75. The court, however, refused to allow to Blair's testimony that the guy then said, "That's going to teach niggers don't mess with our business," on the ground that it was not against the out-of-court declarant's penal interest. 8-75-78. However, the statement was not even hearsay because it was not "offered in evidence to prove the truth of the matter asserted," Rule 801(c), Fed. R. Ev., that killing Copeland would in fact teach African-Americans not to mess with the declarant's business. Even if it were hearsay, the reference to "our" business was clearly against the declarant's penal interest.

In response to defense counsel's argument that Blair's testimony was admissible because he had passed it on to the FBI and that the FBI had not followed up on it, 8-88-89, the government argued that before evidence of third-party culpability could be introduced, it had to be "coupled with substantial evidence tending to directly connect that person with the actual commission of the offense," citing Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993), 8-90-94. The court ruled that the proffered testimony was hearsay and immaterial, 8-98-99, and then upheld an objection to defense counsel's question, whether Blair knew anything about the man with gun in his waistband that might lead to his identification, on the ground that it was outside the scope of direct and irrelevant. 8-103-104.

That Blair had passed the information on to the FBI and they had not followed up on it, however, was clearly relevant. That the police do an incomplete investigation, especially where they have not followed evidence showing there was another perpetrator, has a "tendency to prove" that the police have charged the wrong man. Inadequate police investigation is a common and valid defense. E.g., United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir. 1996)(explained infra).

A second witness in Louis Xxxxxxx's case, Christine Huff, testified that she saw three young men do the shooting. 8-109. When Huff was asked on cross-examination by Ralph Xxxxxxx's counsel, David Howard, whether she had given a statement to Agent Kossler, the court ruled that the question was outside the scope of direct examination and would not allow Howard to make a proffer at sidebar. 8-116-117. When Howard asked whether one of the young men was someone she knew as "Skeeter," the court sustained an objection on the ground that is was outside the scope of direct examination. 8-119-120. She also again refused to allow Howard to make a proffer at sidebar, and when Howard protested that he should be given the same opportunity to be heard as the prosecutor, the court said she was "quite sad" to learn that Howard felt that she treated him differently. 8-120.

On direct, however, Huff testified that Copeland had been attacked by three young men. It was clearly within the scope of direct to inquire after their names.

C. The excluded evidence was admissible under the Federal Rules of Evidence to show third-party culpability.

The case upon which the Government chiefly relied below was Ignacio, a Ninth Circuit case, where the court stated, to be admissible, evidence of third-party culpability "must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense." 10 F.3d at 615.

In Crosby, 75 F.3d at 1346, a more recent decision, however, the Ninth Circuit simply made an analysis pursuant to Rules 401 and 403, Fed. R. Ev., and made no mention of "substantial evidence" or "direct connection" requirements. In that case, a prosecution for assault resulting in serious bodily injury within the special territorial jurisdiction of the United States, the identity of the assailant was in issue because the victim was very drunk at the time of the assault and her testimony identifying Crosby was unsure. Id. at 1345-46. The court concluded that proffered evidence that the victim's husband had beaten her previously and was in the general area at the time of the assault should have been admitted and reversed. Id., at 1349-50.

In Morgan, 581 F.2d 933, a case from this Court that was decided in 1978, just after the Federal Rules of Evidence went into effect, the prosecution was for possession of phenmetrazine with intent to distribute. The district court excluded evidence that others had access to an area where drugs had been found that the government contended were in the possession of the defendant. Id. at 934-936, 939. This Court held that the Federal Rules of Evidence created no special rule for the exclusion of evidence inculpating a person other than the defendant, and reversed. Id. at 939. We have found no later cases from this Court that are relevant to the question whether there should be a special rule of admissibility where the defense proffers evidence that someone other than the defendant committed the crime.

There are, however, many District of Columbia Court of Appeals cases that have addressed the question, and in Winfield v. U.S., 676 A.2d 1 (1996), that court considered it en banc. There, the court reconsidered the so-called Brown-Beale principle, viz., "before evidence of the guilt of another can be deemed relevant and thereby admissible, the evidence must clearly link that other person to the commission of the crime." Brown, 409 A.2d at 1097 (emphasis added). The facts in Winfield are similar to those presented here. The decedent, Deborah Davis, was also an informant for the Government. A prosecution witness testified that, as he shot her, the killer asked whether she "like[d] snitching, bitch." Winfield, 676 A.2d at 3. The defense proffered that others had attempted to kill Davis a month before, that Davis had survived that attempt and provided evidence against them, and that one of them, Huff, was at liberty at the time of the shooting although no witness had identified him from photographs as the shooter. The trial court found that the clear connection required by Brown-Beale was lacking, noting the absence in the proffer of (1) any identification of Huff from photographs, (2) any evidence that Huff was near the scene, and (3) any evidence that Huff knew that Davis had testified against him. Id. at 4.

The en banc appeals court, however, disavowed the Brown-Beale principle in favor of a standard requiring "proof of facts or circumstances which tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense." Id. The test, it said, relying on Rule 401, as it did so, should be the general rule for relevance, that, is whether the "evidence [has] any tendency to make the existence of any fact ... more probable or less probable that it would be without the evidence." Id. The "reasonable possibility" test, the court wrote sufficiently accommodates the concern that surmise as to third-party responsibility for a crime risks misleading the jury by distracting it from the issue whether this defendant is guilty. Id. at 5. Applying the test, the court concluded that the proffered evidence should have been admitted. The court also stated that close questions of admissibility should be resolved in favor of admission, among other reasons, because (1) exclusion implicates the defendant's constitutional right to "a meaningful opportunity to present a complete defense," citing Crane, 476 U.S. at 690, and (2) drawing commonsense inferences from uncomplicated facts is something regularly entrusted to juries. Winfield, 676 A.2d at 7.

Although a decision of a state court does not usually command deference in the federal system, this Court has written that "it is important to maintain as much commonality between this court and the D.C. courts as possible... '[because] it would unfair for the character or result of a litigation materially to differ because the suit had been brought in a federal court.'" U.S. v. Thomas, 896 F.2d 589, 591 (D.C.Cir. 1990).

There is no authorization in the Federal Rules of Evidence to create an especially restrictive rule excluding evidence tending to show that someone other than the defendant actually committed the crime. Even if there were, the constitutional requirement of proof beyond a reasonable doubt would trump such authority. On the contrary, as Winfield suggests, since the Sixth Amendment rights of the defendant are implicated, close questions of admissibility should be resolved in favor of the accused, not against him. See also Crane; Chambers.

Leaving aside the constitutional issue, there is no plausible authority for depriving the defendant of his rights under the Federal Rules of Evidence. A court should proceed to apply those rules as the Ninth Circuit did in Crosby, first determining whether the evidence was relevant pursuant to Rule 401 and then whether it presented the dangers enumerated in Rule 403. The decisions of other circuit courts support this approach. See United States v. Blum, 62 F.3d 63 (2d Cir. 1995)(analyzing pursuant to the Federal Rules of Evidence and reversing where excluded evidence showing motivation of government witness to commit crime charged); United States v. Cohen, 888 F.2d 770 (11th Cir. 1989)(analyzing pursuant to Federal Rules of Evidence and reversing where excluded evidence showed government witness capable of carrying out fraudulent scheme without the Cohens' participation).

Because the Government made no case below that admission of any of this evidence created a risk of any of the dangers listed in Rule 403, the issue presented is one of relevance under Rule 401. Evidence that another person had a motive to kill Copeland had a tendency to make it more probable that that person killed Copeland rather than Louis Xxxxxxx and thus was relevant. Evidence that ten persons had a motive to kill Copeland was a fortiori relevant.

Furthermore, there was considerable evidence of record showing that the possibility of a different killer was not "mere speculation," as the government argued, 2-49. Jencks material provided on Thomas showed Copeland had also been snitching on "Peabody." 6-4. Moreover, Jencks material on Eddings provided powerful evidence that Thomas was the killer. 6-139-151. Finally, Huff testified that Copeland was killed by a man who was not Louis Xxxxxxx. 8-107-113.

D. The errors were not harmless.

These errors cannot be considered harmless. On at least three occasions, the defendants were deprived of an opportunity to present their principal defense.

Not only were they not permitted to present the defense to the jury, they were even prevented from presenting it to the district court on two of the three occasions, as a result of which there is an incomplete record in this Court on this issue. Defense counsel proffered that "other individuals that [Copeland] was providing information on could have, did have the motive and possibly the opportunity to commit the murder in this case," 2A-49, when the court refused to allow Bamel to testify as to the identity of others Copeland was informing on, but the court thrice denied the defense an opportunity to make a record on this issue, 2A-49-50. When defense counsel attempted to make a proffer at sidebar concerning his question to Huff, whether one of the three young men who had attacked Copeland was named "Skeeter," the court refused and sarcastically remarked, in the presence of the jury, that she was "quite sad" that defense counsel thought that she treated him differently from the prosecutor. 8-120. It is reversible error to prevent a party from making an offer of relevant proof. Wigmore, Evidence (Tillers Ed. 1983), §20d, p. 859, and cases collected at n. 5. Under these circumstances every inference should be taken against the Government.

Because defendants' Sixth Amendment rights are implicated, the government must prove that the exclusion of this evidence was harmless beyond a reasonable doubt, see Chapman, supra, which it cannot do. However, even if the standard articulated in Kotteakos v. United States, 328 U.S. 750, 764 (1946), applies, the judgments must be reversed because this Court cannot be "sure that the error did not influence the jury."

IV. PROVIDING THE JURY WITH TRANSCRIPTS OF FOUR MAJOR GOVERNMENT WITNESSES TRIAL TESTIMONY BUT REFUSING TO INCLUDE TRANSCRIPTS OF IMPEACHING TESTIMONY WAS AN ABUSE OF DISCRETION.

A. Standard of Review

The district court’s response to jury requests for the testimony of witnesses is reviewed for abuse of discretion. United States v. Davis, 974 F.2d 182, 189 (D.C. Cir. 1992).

B. The RequestedTranscripts

After a trial lasting approximately 10 days, and about three hours of deliberations, the jury sent a note asking for transcripts of four government witnesses, Tim Carrington, Glenn Young, Steven Hamilton, and Kevin Eddings. 12/57, 70-72. All defense counsel objected to the request, pointing out that the jury should be urged to rely upon its recollection of the evidence in reaching its verdict and that the danger of providing transcripts was that the jury might give undue emphasis to all or some of the testimony of these witnesses. Id., 73-76.

The court responded to the note, telling the jury that the transcripts were not available and that their recollection controlled. Id., 80. The jury was then dismissed for the day. Following an overnight recess, the government informed the court that it had prepared redacted transcripts of the four government witnesses’ testimony. Counsel for all defendants renewed their objections, and requested that if the court was inclined to provide the requested testimony, it should be read to the jury in open court rather than provided in transcripts. Id., 4-12. The defense also requested that the court make available to the jury the testimony of other witnesses impeaching the requested testimony, or, at a minimum, to advise the jury that the transcripts were available. Id., 4-9. The defense proffered transcripts of the testimony of FBI agents Regini and Kossler. Regini impeached Glenn Young with significant inconsistencies between his trial testimony and statements made to the FBI. Kossler impeached certain trial testimony of Steven Hamilton. The court did not rule upon either request.

The court sent the jury a note inquiring whether it still wished to see the transcripts, to which the jury responded that it did. Id., 13, 15. The jury was then advised that the transcripts were available and would be sent to the jury room. Id. Before allowing the jury to return to its deliberations, the court instructed that:

As I told you on yesterday when you asked for these transcripts and I

did not have them available, that we generally do ask a jury to depend

upon their best recollection. Now that I have these transcripts, I want

you to keep this in mind: That you should consider this testimony

that you have personally sought along with all of the other evidence

in the case. You cannot consider it by itself and out of context from

the trial as a whole. All right? And you must consider, as I told you,

all of the evidence together as a whole. So, do not take this out of

context of all of the other evidence that has been presented during

the course of this trial.

And with that, ladies and gentlemen, and to the foreperson, I

present you with the transcripts that you seek. . . .

Id., 16.

The district court permitted the jury to have for its unfettered use the transcripts of four of the major government witnesses in this case. The witnesses were either eyewitnesses to the shooting of Copeland or to significant events leading up to the shooting. The witnesses’ testimony was highly incriminating.

The decision whether to permit the re-reading of testimony or whether to furnish written transcripts is ordinarily committed to the court’s discretion. United States v. Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995); United States v. Davis, 974 F.2d 182, 189 (D.C. Cir. 1992). However, it is generally recognized that the re-reading of testimony (and by analogy, furnishing transcripts of testimony) after deliberations have begun is disfavored. United States v. Krout, 66 F.3d 1420, 1433 (5th Cir. 1995); United States v. Keys, 899 F.2d 983, 988 (10th Cir. 1990); United States v. Castillo, 866 F.2d 1071, 1084 (9th Cir. 1989); United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985).

A primary concern is that the jury will give undue emphasis to the repeated testimony. In United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir. 1994), the court reversed a gun conviction, finding an abuse of discretion in the district court’s decision to allow the jury to have a copy of the transcript of a crucial government witness, and noting that “in the privacy of the jury room, a jury, unsupervised by the judge, might repeatedly replay crucial moments of testimony before reaching a guilty verdict.” Id., 1408 (citing United States v. Sacco, 869 F.2d 499, 502 (9th Cir. 1989)). See also United States v. Padin, 787 F.2d 1071, 1076-77 (6th Cir. 1986) (the problem with re-reading testimony is that the jury may over-emphasize the repeated portions of the testimony and take the re-read testimony out of context).

In the instant case, the four witnesses whose testimony was furnished to the jury comprised a major portion of the government’s case against the defendants. In none of the reported cases upholding the trial court’s exercise of its discretion to permit the jury to have witness transcripts has an appellate court approved the submission of the bulk of the government’s case for the jury’s repeated perusal in the jury room. See, e.g., United States v. Barker, 988 F.2d 77, 79-80 (9th Cir. 1993) (testimony of one government witness replayed in open court); United States v. Haren, 952 F.2d 190, 196-97 (8th Cir. 1991) (direct and cross-examinations of two government witnesses re-played for jury in open court, but only after verdicts reached as to defendants and jury deliberating only as to defendant who was ultimately acquitted); United States v. Lujan, 936 F.2d 406, 411-12 (9th Cir. 1991) (entire trial transcript provided to jury, rather than individual witnesses); United States v. Anderson, 782 F.2d 908, 916-17 (11th Cir. 1986) (no abuse of discretion to allow jury to hear testimony of several government witnesses, the most significantof whom had been painted as unreliable by both government and defense).

Moreover, in this case, the district court declined reasonable defense requests to furnish transcripts that put the government witnesses’ testimony in perspective. This court has recognized the importance of placing requested testimony in its full and proper context. See United States v. Davis, 974 F.2d at 189 (trial court did not abuse its discretion in re-reading a portion of the testimony of a single government witness, where there was “no other record evidence the trial court should have read in reply to the jury’s inquiry . . . no relevant cross-examination undermining [the witness’] statement . . . [and] no reason to believe that revisiting [the witness’] testimony was in any way prejudicial to his case.”)

Other courts also have recognized the importance of maintaining balance in the re-reading or furnishing of transcripts of witnesses’ testimony. In United States v. Bennett, 75 F.3d 40, 46 (1st Cir. 1996), the court recognized the general principle that the trial court enjoys discretion in deciding whether to give the jury testimony it has not requested, but cautioned that “such discretion is not unlimited,” and that “ . . . the trial judge should exercise great care when the testimony the defense counsel wants the jury to hear is cross-examination of the very witnesses whose full direct testimony has just been reread.” Id. Moreover, the court pointed out, it might be that the testimony of another witness should be read to assist the jury to assess the testimony of the witness whose testimony was requested. Id. In United States v. Zarintash, 736 F.2d 66, 70 (3d Cir. 1984), the court found an abuse of discretion because the trial court failed to provide the transcript of one witness, as the jury had requested, because that witness squarely contradicted a major government witness. See also United States v. Rodgers, 109 F.3d 1138, 1143-44 (6th Cir. 1997) (finding no abuse of discretion in denying defense request that other witnesses’ testimony be provided to the jury along with requested testimony, since there was no showing that the other witnesses’ testimony would have impacted on the credibility of the one witness for whom a transcript was provided); United States v. Wright-Barker, 784 F.2d 161, 174 (3d Cir. 1986) (finding no abuse of discretion from re-reading direct testimony without re-reading cross-examination, where jury was specifically instructed that other testimony would be furnished upon request).

The district court in the instant case acceded to the jury’s request for transcripts without any preliminary determination that the jury’s recollection of the witnesses’ testimony had been exhausted, and without any other particularized showing of a need for the transcripts. Courts which have approved the provision of transcripts have generally required some basis for the jury’s request. For example, in United States v. Keys, 899 F.2d 983, 988 (10th Cir. 1990), the jury was first told to rely upon its own recollection and that the testimony would be re-read only if their recollections failed and the testimony was absolutely essential to a verdict. Likewise, in United States v. Betancourt, 838 F.2d 168, 175 (6th Cir. 1988), the court found that it was not plain error to furnish the jury with the transcript of one witness, since the witness spoke heavily-accented English at the trial and was difficult to understand.

Significantly, an important safeguard which normally accompanys the re-reading of testimony or the provision of transcripts was lacking in the instant case. The court failed to properly instruct the jury that it was to resort first to its own recollection, and only then to the transcripts. Courts have repeatedly emphasized that the trial court’s instruction to the jury in the proper use of transcripts is crucial. See, e.g., United States v. Lujan, 936 F.2d at 412 (jury was specifically instructed that their memories prevailed); United States v. Keys, 899 F.2d at 988 (jury told to first use its collective memory);

United States v. Meredith, 824 F.2d 1418, 1424-25 (4th Cir. 1987) (any error in court’s re-reading portion of testimony of government informant was cured by a cautionary instruction).

In this case, the jury was provided with the opportunity to replay the lion’s share of the government’s case against the defendants, without any preliminary determination that the transcripts were necessary for the jury to reach its verdicts. The testimony that was furnished to the jury was highly-incriminating. Glenn Young testified that he was an eyewitness to Copeland’s shooting and identified Louis Xxxxxxx as the shooter. Additionally, he related Xxxxxxx’s statement that he had alerted Louis Xxxxxxx to Copeland’s presence in the area shortly before he was shot. Carrington testified that he was an eyewitness to the shooting and that Louis Xxxxxxx shot Copeland. Hamilton testified that he had seen the Xxxxxxxs earlier on the day of the shooting, that both were armed and that they were looking for Copeland. He related that on the day after the shooting, Xxxxxxx told him that he had notified the Xxxxxxxs that Copeland was in the area just before the shooting. Eddings identified Louis Xxxxxxx as Copeland’s shooter.

Moreover, notwithstanding defense requests, no contrary testimony was provided to balance the impact of these transcripts. Finally, the district court’s cautionary instruction was inadequate. For all these reasons, the district court’s decision to permit the jury to have the transcripts of the testimony of four government witnesses was error. The error deprived the defendants of a fair trial and as a consequence, a new trial is warranted.

CONCLUSION

The judgments of the district court should be reversed and the case remanded for a new trial.

Respectfully submitted,

____________________________

Reita Pendry, etc.

Counsel for Ralph Xxxxxxx

____________________________

Rick Seligman, etc.

Counsel for Marcellus Xxxxxxx

____________________________

Thomas G. Corcoran Jr.

Berliner, Corcoran & Rowe

1101 Seventeenth Street, N.W.

Suite 1100

Washington, D. C. 20036

(202) 293-5555

Counsel for Louis Xxxxxxx

May 13, 1998