CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), appellant, Eric Xxxx, states as follows:

A. Parties and Amici

The parties on this appeal are appellant, Eric Xxxx, and appellee, the United States of America ("the Government"). There are no intervenors or amici.

B. Rulings Under Review

This case was tried before a jury, the Hon. Joyce Hens Green, United States District Judge, presiding, from September 10 through 17, 1993. The matters in issue on appeal are: (1) the judge's denial of Mr. Xxxx's motions for a judgment of acquittal (Appendix ("A.") III 83-86; V 115-120), (2) the admission of expert testimony that the drugs allegedly possessed by the defendants were possessed with intent to distribute (A. III 24, 46-47); and (3) the judge's decision to issue, and issuance of, missing witness instructions and the prosecutor's related argument to the jury (A. V 154-162; VI 33-34, VI-B 24).

C. Related Cases

There is a related case, United States v. Gregory Souder, Cr. No. 93-0250-01, Appeal No. 94-3096. Mr. Souder and Mr. Xxxx were charged individually in separate counts of the same indictment and were tried together. Mr. Xxxx was found guilty on September 17, 1993; Mr. Souder was found guilty by the same jury on September 20, 1993, after a weekend recess. Appellate counsel for Mr. Xxxx has been informed that Mr. Souder has recently been sentenced and that his notice of appeal to this Court was filed on July 1, 1994.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________________

NO. 93-3211

_____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC Xxxx,

Appellant.

_____________________________________________

BRIEF FOR APPELLANT

_____________________________________________

STATUTES AND RULES

Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5), pertinent statutes and rules are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. § 3231. A notice of appeal having been timely filed, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUES PRESENTED

1. Whether the evidence was legally insufficient to support a finding beyond a reasonable doubt that Mr. Xxxx intended to distribute the 1.694 grams he allegedly possessed.

2. Whether the judge erroneously admitted testimony by the expert witness, referring to the physical evidence displayed to him, that the drugs the indictment separately attributed to each of the defendants were possessed with intent to distribute in a joint "drug operation."

3. Whether the judge erroneously decided to issue missing witness instructions and permitted the prosecutor to argue an adverse inference against both defendants, because the absent witness was not peculiarly available to Mr. Xxxx and could not have testified favorably to either defendant without incriminating himself.

STATEMENT OF THE CASE

The Proceedings Below

In the second count of an indictment filed on June 17, 1993, the Grand Jury charged Mr. Xxxx with possession of cocaine base with intent to distribute on or about May 29, 1993, in violation of 21 U.S.C § 841(a)(1) and (b)(1)(C). (The first count charged Gregory Souder with the same offense.) On September 9, 1993, a motions hearing was held, and the judge denied the defendants' motions to suppress the evidence on Fourth Amendment grounds, to disclose the identity of the informant the police relied upon in obtaining the search warrant, and to sever the defendants' trials.

A jury trial commenced on September 10, 1994, and it ended, for Mr. Xxxx, with the jury's guilty verdict on September 17, 1994. (Mr. Souder was convicted, after the weekend recess, on September 20, 1994.) Mr. Xxxx, who had been at liberty before trial, was sentenced, on December 7, 1993, to 33 months of imprisonment, three years of supervised release, and a $50 special assessment.

STATEMENT OF FACTS

The Evidence at Trial:

The Government's Case

The Government presented three police officers to testify concerning the entry and search, on May 29, 1993 at about 1:00 a.m. of 358 Ridge Road, Southeast, the home of Jessie Souder, her son Gregory (Mr. Xxxx's codefendant), and (as the defense contended), her other son Derrick. Sergeant David Sledge was the supervisor of the execution of the search warrant. Officer Daron H. Regan was the "seizing officer." And Officer Donald G. Leach watched the back of the residence during the entry and then joined the other officers inside and helped with the search. Their testimony generally presented a consistent version of the Government's allegations concerning the seizure of evidence.

Sledge knocked on the front door and announced the police presence and purpose (II 26). In the following 20 seconds, the police only heard apparent movement away from the door, so Regan used his ram to break through the door (II 26-27, 34; III-A 46, 49). Officer McDonald, who had a shotgun, was first to enter, and he pointed the weapon at Mr. Xxxx, who was standing near the table in the living-dining room, told Mr. Xxxx to "freeze," and ordered him to lie on the floor, which he did (II 46-47, 56, 62-63; III-A 6-7, 34, 46-48). McDonald did not search Mr. Xxxx because police policy required the shotgun to be held with two hands (III-A 52).

Regan stopped briefly to make sure McDonald "had the position secure," then he went several other places before returning to McDonald and Mr. Xxxx (III-A 50-51). Sledge went straight through the residence to what was referred to as bedroom number 3, where he saw Gregory Souder lying on one bed, then sitting up, then rising and hopping on one foot (because he had a cast on the other foot) to the second bed, where he lay down again (II 27-28, 34-35, 47). Leach joined Sledge at the door of the bedroom, then Leach "secured" and searched it (II 28, 39, 67; II-B 14-15). Mr. Souder was alone in the bedroom when Leach arrived there (II-A 38).

Leach found the larger amount of crack in evidence, two "large" rocks, wrapped in plastic and then in a paper towel, between the mattress and the box spring of the bed Mr. Souder had allegedly left, from which location Regan seized it (II-B 12-15, 17; III-A 22-23). Also found in that bedroom were pieces of mail addressed to Gregory Souder and two pagers (II 37; II-B 20-24). Mr. Souder was taken to the living room, where Sledge searched him and found $295 in his pants pocket (II 32-33; III-A 26-27).

Sledge saw two Spanish-speaking men in the residence, one coming out of the bathroom and one sitting in bedroom number 2 (II 46). The men had identification, but Sledge did not recall their names (III-A 64-65). In that bedroom were found a "sifter," with an unidentified white residue on it, and "paraphernalia" consisting of two razor blades and six small ziplock bags (II-B 24-26; III-A 28-29). Sledge and Regan saw Ms. Souder and two children lying on the bed in bedroom number 1 (II 31-32; III A 9-10).

Regan went back to McDonald's position and learned that Mr. Xxxx had not been searched, so Regan had Mr. Xxxx stand up (he had still been lying on the floor) and he searched him for weapons but found only a "plastic bag containing nine ziplocks of a white rocklike substance, in his front pocket," and Mr. Xxxx's District of Columbia driver's permit, in his left rear pocket (III-A 11-12, 16-17, 52).

Regan then put his briefcase on the nearby table and set up a work station, and he noticed on the table a video box, which he opened, finding inside more small, empty ziplocks and razor blades (III-A 18-19). In court, Regan compared the colors of the ziplocks in three exhibits. Some of those from bedroom number 2 were clear and some were blue; six of those allegedly taken from Mr. Xxxx were clear, two blue, and one brown; and some of the bags in the video box were clear, some brown, and some black (III-A 29-31, 69-71).

When Regan was asked if he had mistaken Mr. Xxxx for Derrick Souder, he displayed some confusion, then answered, "Ma'am, I don't think so. I don't recall" (III-A 42). Later, he testified that he recognized Mr. Xxxx "by face," but did not remember his name, if he had previously known it (III-A 48). Sledge testified that McDonald did not use a name to address Mr. Xxxx (II 47).

The parties stipulated that the DEA chemist would have testified, if called, that the substance in Government's Exhibit 8, allegedly seized from the bedroom where Mr. Souder had been, was 24.7 grams of cocaine base with a strength of 54 percent, and that the substance in Exhibit 5, allegedly seized from Mr. Xxxx, was 1.694 grams of cocaine base with a strength of 63 percent (III 27-29).

The Expert Testimony About the Defendants' Alleged Intent to Distribute the Drugs Seized

The Government indicated its intent to have Officer David Stroud testify as an expert witness, and before he testified there was a colloquy about the purpose of his testimony. The prosecutor began by saying,

I know I'm going to ask him to give his expert opinion as to whether the drugs that were found were for personal use or for intent to distribute.

(III 21) The judge said, "But of course not by this defendant, in concert with the appellate decisions" (III 21). The prosecutor agreed that he would not ask "what the defendant was intending," but only about whether the circumstances were "more consistent with personal use or intent to distribute" (III 21). And the judge elicited his assurance that Stroud would make clear that he knew nothing about the instant case (III 21).

The prosecutor went on to state that he wanted to establish through Stroud that

. . . drug packaging was in progress when the police arrived and some drugs were disposed of, but that there was paraphernalia related to the packaging left strewn about the house.

(III 22) Both defense counsel objected (III 22-23). About this

proffer, the judge said,

. . . as to scurrying feet and drug paraphernalia and processing, what is before the jury is before the jury. Clearly, you can summon a decent argument based on things that are left strewn around. But if he is going to testify as to things put in here and things on a bureau, it really comes smack into the intent in this case. I'm not going to let him testify as to that.

As to the items, they have not been objected to and that's perfectly legitimate, as to the pager, as to the razor blade, as to the sifter, as to -- I have to refresh my memory as to items. Certainly narcotics. What was the other paraphernalia? Oh. And the vacant baggies. Clearly he can testify as to that. . . .

(III 24; emphasis added)

Officer Stroud was qualified as an expert in the use of narcotics and trafficking in them (III 34-36). The prosecutor showed him Government's Exhibits 5 and 5A, the nine ziplock bags of crack allegedly found in Mr. Xxxx's pocket and the DEA-7 analysis form noting findings of 1.694 grams at 63 percent purity (III 38). He opined that the bags were "of the $20 variety," calculating their total street value at $180 (III 39). The following question and answer ensued:

Q Now, if I were to tell you that a person had those nine bags with this quantity of cocaine in their pocket, would you say that that was more consistent with having that cocaine for that person's personal use or for distributing to others?

A Distributing to others.

(III 39) Asked to explain his opinion, Stroud referred specifically to the nine bags in evidence and said first that "somebody" could have made a profit of at least $80 by buying that amount of crack in bulk (for about $100) and selling it in nine $20 portions (III 39). He went on to testify that a drug user would not buy nine bags for his own use because of the danger of being sold simulated crack, and that a dealer would be aware that only a rookie police officer or an informant would buy nine bags (III 39-40).

At this point the judge interjected a request for confirmation of her statement that the witness was "not referring to the intentions of any particular person or any particular defendant in this case, but merely addressing the hypothetical question that the Government prosecutor has given to you," and he responded, "That is correct. Yes" (III 40). The prosecutor followed up by leading the officer to agree that he had "no knowledge about any of the facts of this case" (III 40).

Then the prosecutor proceeded to have Stroud examine Government's Exhibit 7, and he observed that it consisted of a large quantity of $10 or $20-size ziplock bags, a single-edge razor blade of the type popularly used to cut up crack for distribution, and a video cassette tape container (III 41). The prosecutor's next question was:

Now, what if I were to tell you, hypothetically, that the person who had the nine ziplocks of crack cocaine that you've already testified about in their pocket was found a few feet away from the items that are contained in Government's Exhibit No. 7?

(III 41) Mr. Xxxx's attorney objected and a bench conference followed, during which both defense counsel objected to testimony by Stroud about the significance of the defendants' proximity to the items in evidence, and the court ruled that this was a subject the Government was "allowed to address in a hypothetical manner" (III 41-43).

The prosecutor next elicited Stroud's testimony that the box was usable for cutting up and storing the crack, and then he asked, Returning to my hypothetical, if I were to tell you that our hypothetical person with the nine ziplocks in his pocket were found a few feet away from what is contained in Government's Exhibit 7, would that -- first, would that alter your opinion at all as to whether or not that person's possession was consistent with distribution?

(III 44) Stroud answered that that fact "would just enhance" his

opinion,

Because anybody who is in close proximity to all the equipment we have here for cutting purposes and then distribution purposes, in my opinion, would have to be involved in a distribution operation, because you have -- your tools are here, you have the drugs on his person. That's all I need.

(III 44; emphasis added)

The prosecutor went on to show Stroud the tea strainer in evidence and to elicit his testimony that it, too, was evidence of a drug operation (III 44-46). Then the prosecutor started to ask Stroud's opinion of the significance of white powder on the strainer if that powder had yielded inconclusive field test results, and Mr. Souder's counsel objected on the ground that the question was not hypothetical, but it went to the "actual evidence" (III 46-47). The judge quoted from United States v. Mitchell, 996 F.2d 419, 422 (D.C. Cir. 1993) concerning the permissibility of questioning an expert about facts parallelling the facts in the case being tried, and she said the prosecutor would pose the question as a hypothetical (III 46-47). The prosecutor did begin the renewed question about the powder in the strainer with "What if I were to tell you that . . . ", and Stroud testified that the cutting agent used during the mixing process might obscure the presence of cocaine in a field test (III 49).

Turning to the other quantity of crack seized, the 24.70 grams found under the mattress, the prosecutor first elicited Stroud's testimony that it was "consistent with" intent to distribute, rather than personal use, and then, after having the witness disavow knowledge of the defendants' intentions, the prosecutor asked and Stroud answered,

Q And based upon this evidence, this quantity of cocaine, what is your opinion as to whether or not it's for personal use or intent to distribute to others?

A Intent to distribute.

(III 49-50) Stroud's lengthy explanation of his conclusion began with reference to "the equipment you showed me earlier" and he said, "I already recovered nine bags of crack cocaine that are already ready to hit the street" (III 50).

The next subject of Stroud's testimony was pagers. When the prosecutor asked whether it would alter his opinion of the prospective use of the larger quantity if it were found five to six feet away from two pagers, he said it would "just enhance" his opinion "based on the other exhibits you showed me" and his testimony about them (III 52).

After eliciting another disclaimer by Stroud of knowledge "about the facts of this case," the prosecutor asked, over the objection of Mr. Souder's counsel, what Stroud's opinion would be if the larger quantity of crack had been found under the mattress of a bed that a person got off of as police entered; the witness answered, "Apparently the person was trying to separate himself from those drugs that were recovered" (III 52-53). At this point the judge intervened again to elicit a disclaimer of knowledge of "this case" or of the defendants' intentions, and then she said, "The jury is so instructed" (III 53).

Finally, Stroud testified that if the hypothetical person who changed beds possessed $295 in cash, it would be "seized as proceeds from prior drug sales," because "we have the drugs, we have the cutting material, we have the bags, we have funds. All that's part of the operation . . ." (III 53).

Near the end of the prosecutor's redirect examination of Stroud, the following exchange took place:

Q What sort of factors would influence your opinion as to whether someone with a beeper was a drug dealer?

A Well, based on what I have in front of me, the evidence that has been submitted already, the box, the bags, the razor blade, the money, the equipment, other equipment you've shown me, and the drugs themselves, that plus the beepers would just again enhance my opinion that we have an operation, a drug operation going on here, and you have got the means for the drug dealers to communicate with their customers or their fellow employees within the operation.

THE COURT: When you say "going on here," Sir, I guess you're referring to the hypothetical? I assume that's what you're referring to?

THE WITNESS: Oh, yes, Ma'am, yes.

(III 74).

Mr. Souder's Defense

Four witnesses testified on behalf of Gregory Souder, including himself. William Souder, age 13, the nephew of both Gregory and Derrick Souder and the grandson of Jessie Souder, testified that he had lived with Ms. Souder since he was little, and that his Uncles Derrick and Gregory shared the same bedroom, though Derrick was not there on the night in question (IV 10, 11, 13, 21). Elijah M. Wade, an investigator, presented testimony and photographs purporting to contradict police testimony as to how much of the bedroom they had been able to see from the doorway (IV 64-79).

Gregory Souder testified, most significantly, that he was sharing the bedroom with his brother Derrick at the time in question, that he had seen Derrick earlier on May 29, 1993, that he had last seen Derrick the day before he (Gregory) was testifying, that the bed where the drugs were allegedly found was not his (Gregory's), that he had not moved from his own bed all day, that he (Gregory) did not know drugs were in the room, that he was holding $275 of the cash found on him for his girlfriend, Lakisiha Young, to pay her auto insurance, and that Derrick's nickname was "Clean" and he heard Regan say, "I've got you now, Clean," while Regan was standing next to Mr. Xxxx (IV 84, 91, 92, 95-96, 99-100, 111-112, 114, 127, 130, 134).

Lakisiha Young testified that she gave Gregory Souder her $275 to hold for payment of her auto insurance because she had difficulty saving money (IV 179-180). She also testified that the bed where the drugs were allegedly found was Derrick's (IV 189).

Mr. Xxxx's Defense

Mr. Xxxx testified in his own defense. At the time of trial he was 31 years old, a high school graduate, with three years' active duty in the Marine Corps, from which he had been honorably discharged (IV 236-237). Mr. Xxxx was a friend of Jessie Souder, codefendant Souder's mother, and had lived with her between 1985 and October of 1992, when he moved out of her home (IV 238-239). Mr. Xxxx moved into his own mother's home and continued to live there with the woman he married the next month (V-A 29, 86). On the night in question, Ms. Souder had called and asked him to take her to where her car had broken down while her nephew was driving it (IV 239). Mr. Xxxx had fetched her and they had gone to the stranded car, but had been unable to start it (IV 239). So he took her back to 358 Ridge Road and accompanied her into her place (IV 240).

It was about 12:30 a.m., and the only other person Mr. Xxxx saw in Ms. Souder's home was Gregory Souder, in his bed (IV 240-241). Mr. Xxxx had gone to the bathroom, and after emerging, he walked by the open door to Mr. Souder's bedroom, looked in, saw him lying in the right-hand bed, and spoke to him in passing (IV 242; V-A 70, 97). As far as he could tell, Mr. Souder was alone, but he could not see the other bed because the television blocked his view (V-A 72-73, 97-98). Then Mr. Xxxx went to the living-dining room, sat at the dining table, and opened and drank a beer (IV 244). He did not remember seeing the video box on the table (V-A 74). Ms. Souder had not stayed with Mr. Xxxx; he thought she had gone to her bedroom (IV 244). As he sat at the table, she "was back and forth," and he talked with her "for a little while" (IV 244).

At about 1:00, there was a "real loud" banging--about five blows--on the front door, and then, after about 45 seconds, "[a] white man showed up with a shotgun" (IV 240, 245). That man, Officer McDonald, pointed the shotgun at Mr. Xxxx and told him to lie face down on the floor, and Mr. Xxxx did so (IV 249). Later, McDonald asked him whether anyone had gone out on the balcony, and he answered in the negative (IV 251). He stayed there on the floor for about 20 minutes (V-A 4). Then, McDonald told him to sit on the love seat, and he complied, staying there for another ten minutes, until Officer Regan came out of Mr. Souder's bedroom holding a bag containing a large rock of cocaine (V-A 6).

Regan approached Mr. Xxxx, asked him to rise, and asked if he could search him, to which Mr. Xxxx answered, "Sure" (V-A 6). The officer was standing behind Mr. Xxxx, and after patting him down, the officer held up a bag containing nine rocks and said, "Clean, I told you I would get you. I don't know why you keep taking your mother through these changes" (V-A 7, 13). "Clean" was not Mr. Xxxx's nickname, but Derrick Souder's (V-A 8). Mr. Xxxx told the officer that his name was not "Clean," but the officer made no response except to ask for an identification, and Mr. Xxxx showed him his commercial driver's license (V-A 8-9). Mr. Xxxx averred that he did not possess the drugs Regan displayed and did not know where they came from (V-A 9). He had $38 cash in his pocket, which Regan saw after he displayed the drugs, but returned to him (V-A 12).

Finally, Regan handcuffed Mr. Xxxx and asked if he wanted to leave his personal property, so he left his wallet and watch with Ms. Souder (V-A 10-11). The next day, after his release, he retrieved his wallet, and he found that his regular driver's license was missing (V-A 11).

Mr. Xxxx also called as a witness Deborah Lynn Rossi, the general manager of Mercury Message Paging, who testified that one of the pagers in Government's Exhibit 2 had been exchanged on December 30, 1992 for one purchased from her company on December 28, 1992 by someone who gave the name of Derrick Souder, with a residence at 358 Ridge Road, S.E., Washington, D.C. 20019 (V 11-18). The final payment terminating the account for that pager was made on August 25, 1993 (V 21). During the eight months the account was active, 4,282 calls were made to the pager (V 21-22). The witness acknowledged that no identification had been required in connection with the transactions, and that people often use false names in contracting for pagers (V 24-26).

The Colloquy as to the Proposed Missing Witness Instructions

The judge drew her jury instructions from the 1993 edition of the "Redbook" (the District of Columbia pattern Criminal Jury Instructions) (V 121). During the charge conference, the prosecutor indicated his desire to make a missing witness argument as to Derrick Souder (IV 141-142). The judge initially read the text of Redbook instruction 2.41 (V 142). Then the prosecutor represented to the judge that the police had repeatedly gone to Ms. Souder's home attempting to subpoena Derrick Souder, but that he had not been found, even though others, including William Souder, had said he had recently been there (V 143). The prosecutor contended that this meant that Derrick Souder was "peculiarly available to the defense as opposed to the Government" (V. 143).

Both defense counsel disagreed. Gregory Souder's counsel pointed out that the Government had long known that Derrick Souder lived at his mother's home and that the Government also could have located him when he went to the Superior Court in connection with his pending cases there (V 144). The judge countered that William and Gregory Souder had placed him in the home and that his mother, who had "elected not to testify," was "presumably the matriarch of the family," concluding, "He's been in and out of that home. He's seen by others all the time. He is certainly available more to the defendants than to the Government" (V 144-145).

The judge went on to state, "[W]e don't know if he would have taken a [sic] Fifth," though she acknowledged that counsel had been "sure he would have," and she opined that Derrick Souder's testimony "clearly would have been material and not cumulative" (V 145). Counsel argued that in the instruction's terms, "peculiarly within the power of one party" does not mean that "one party has greater access to him than another" (V 145).

Mr. Xxxx's counsel recalled his involvement as trial counsel in United States v. Pitts, where this Court reversed because a missing witness argument and instructions were erroneously permitted and issued, and he asked the judge to read the opinion (V 146). He also noted that since before trial the Government had had alternative means to locate Derrick Souder, while he was in no way peculiarly available to Mr. Xxxx, and asserted that the instruction would be "very prejudicial" to Mr. Xxxx (V 146-147). He went on to observe that there had been no testimony as to the Government's inablility to locate Derrick Souder, and that here, as in Pitts, the Government had requested the instruction "out of the blue" (V 147-148).

The prosecutor argued that Pitts was not controlling because there, the Government's theory was that the missing witness was an accomplice, and he clearly would have had reason to invoke the Fifth Amendment (V 149). Here, contended the prosecutor, neither the Government nor the defense had proved a connection--though the defense had "insinuated" one--between Derrick Souder and the drugs (V 149). He asserted that the "normal practice" would be to subpoena Mr. Souder and see if he would assert the Fifth Amendment (V 150). Gregory Souder's attorney responded that the beepers (one of which the prosecutor acknowledged had been shown to be connected with Derrick Souder by the efforts of Mr. Xxxx's counsel) would give him a Fifth Amendment privilege, and she argued that the presence of the drugs under the bed put Derrick Souder, as the joint occupier of the room, in the same "jeopardy" as Gregory Souder (V 150-151). Again, counsel asserted her certainty that Derrick Souder could not have testified for the defense without incriminating himself (V 151).

After further colloquy, the judge reiterated that Derrick Souder was available to the defendants and that the Government's subpoena attempts had been unsuccessful, and she proceeded to assert that there was nothing to show that he had had dominion and control over the drugs in the bedroom, although she acknowledged that the theory of Gregory Souder, at least, was that Derrick Souder had possessed those drugs (V 154-155). She told Mr. Xxxx's attorney that if she gave the missing witness instruction, she "would have to distance it from Mr. Xxxx, of course" (V. 155). She expressed the view that Derrick Souder's situation met "all the criteria of the missing witness instruction," and she repeated that she was unpersuaded that he would assert the Fifth Amendment (V 156). However, she noted her concern that the case against Gregory Souder was "relatively weak" and that the missing witness instruction might bolster it; this caused her to be "troubled" about giving the instruction and to want to make sure it was not "a bit of overkill in this case" (V 156-157).

The prosecutor now argued that he should be able, in response to defense counsel's inquiries about Derrick Souder's lifestyle and use of a beeper, to say to the jury, "Well, where is he? Why isn't he here to say that this is his pager that he made 4,000 calls from?" (V 158). The judge apparently agreed that he should be able to do that, and she ruled conditionally that she would give the instruction (V 158). In continued colloquy with Gregory Souder's attorney, the judge analyzed the situation as follows:

Ma'am, well, let me say, the whole defense structure, the whole defense theory, is my understanding, is that Derrick Souder did this. Unless I misread this case, or heard this evidence wrong, that's what the defense would like this jury to believe. The number of calls, the beepers, the name on the beeper, the address, Derrick coming in and out of the home -- just the very things that hurt later on for the missing witness instruction. But that is what supports your theory. Coming in and out of the home, accessibility, sharing the same room, if that is the fact, with Gregory Souder, and wearing flashier clothes. Not much flashier. One time a leather pant or so. And that just came out in direct after a lot of thought. And jewelry, I guess. And giving gifts or whatever. So, all of that being said, the defense theory has brought us to this point.

It is the defendant that is pointing the finger, as Mr. Kushner [the prosecutor] points out -- well, all right. Not you. You're just sitting there, Mr. Levin [Mr. Xxxx's counsel]. I'll turn my position here so I'm concentrating on Ms. Vasco [Mr. Souder's counsel]. It is the defense theory, shared by Mr. Xxxx, that Mr. Derrick Souder is the instrument in here. And the Government, to diffuse that, is saying, not unfairly, "I'd like a missing witness instruction because the testimony bolsters that this man could shed important light on this case, whatever that light is. He could give material testimony, noncumulative testimony, and he is peculiarly available to the defendant." Defendant is the one that told us -- a defense witness -- he was in the home during the course of this trial. Government says, "We've tried to get him; we can't get him."

(V 161)

After Mr. Xxxx's counsel suggested that the Government could not prove that Derrick Souder was "peculiarly within the power of the defendants," the judge held that he was so because he "was in this very home with these very people surrounding him" (V 161-162). In response, counsel observed that only an investigator or a lawyer could have subpoenaed him (V 162).

The Prosecutor's Missing Witness Argument and the Court's Missing Witness Instructions

The judge's determination to give the missing witness charge had been slightly tentative, but it did not change. Accordingly, the prosecutor, in the penultimate paragraph of his rebuttal argument to the jury, made the following assertions:

There's been an effort by defense counsel to shift this whole responsibility to Derrick Souder. In fact, in her opening statement, counsel for Gregory Souder told you will learn how the drugs got there, you will learn who placed the drugs there. Remember that? Well, you never learned that from them. The judge will instruct you that Derrick Souder -- let me rephrase it. Derrick Souder is his brother. And you heard me ask witnesses when they had last seen him. They didn't call him to the stand, even though he was home during this trial. Why? Was it because what he had to say wasn't going to be helpful to Gregory Souder? He was not going to say the things that would help. So they kept him away. Think about it, ladies and gentlemen. Why else wouldn't they call him as a witness while making him out to be this phantom drug dealer who's out there?

(VI 33-34; emphasis added)

The judge's missing witness instructions consisted of the

following:

If a witness who could have given material testimony on an issue in this case was peculiarly within the power of one party to produce, was not called by that party and his absence has not been sufficiently accounted for or explained, then you may, if you deem it appropriate, infer that that witness's testimony would have been unfavorable to the party which failed to call him. However, you should not draw such an inference from a witness who was equally available to both parties or whose testimony would have been merely cumulative or immaterial.

(VI-B 13).

The Judge's Response to the Jury's Question About the Missing Witness Instruction, and the Ensuing Verdict

The jury began deliberations at 11:43 a.m. on September 17, 1993, a Friday (VI 41). In a note with 12:20 p.m. written on it, which was read by the judge and counsel at 1:20 p.m., after their luncheon recess, the jury asked,

When you told us that either side could call up a witness they had access to, what exactly does that mean? Could the Government have called up Derrick Souder or not?

(VI 44). After discussing alternative responses, counsel and the court agreed that the jury would be sent a note saying, in pertinent part, "There is nothing in the evidence to reflect whether or not the Government could have called Derrick Souder as a witness" (VI 50). That note was sent at 1:35 p.m. (VI 50), and in a note bearing the time 3:55 p.m., the jury said, "We have come to a verdict on Eric Xxxx. We are still deliberating regarding Gregory Souder" (VI 54). The judge let deliberations continue until 5:00 p.m., when she called the jury in and heard its verdict finding Mr. Xxxx guilty (VI 62-65). Deliberations were to be continued as to Mr. Souder after the weekend, on Monday, September 20, 1993, and Mr. Souder was convicted on that day.

SUMMARY OF ARGUMENT

Mr. Xxxx allegedly possessed but 1.694 grams of crack, in nine bags. Officer David Stroud's expert testimony was the only purported evidence of the charged intent to distribute. Stroud based his opinion primarily on the potential $80 profit if the possessor had bought one rock and cut it up, and on the usual reluctance of both buyers and dealers to conduct transactions for multiple bags. The speculation as to profit was entitled to no weight, and because Mr. Xxxx was patently a trusted guest in the home where police were executing a search warrant at 1:00 a.m., the usual patterns of arm's length deals were irrelevant. Here, as in United States v. Stephens, 23 F.3d 553 (D.C. Cir. 1994), where 5.9 grams was held too small an amount to support a finding of intent to distribute, the evidence was legally insufficient.

Stroud's testimony also violated Fed. R. Evid. 704(b), because he unmistakably expressed his opinion that the possessor of the 1.694 grams in evidence intended to sell it and was a participant in a drug operation going on in the Souder home. United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993). Moreover, the judge reversibly erred in allowing the prosecutor's missing witness argument and in issuing missing witness instructions. Derrick Souder, co-defendant Gregory Souder's brother and roommate, impli-cated as an actual dealer by both defendants, was not peculiarly available to Mr. Xxxx, and he surely would not have testified in his favor. United States v. Pitts, 918 F.2d 197 (D.C. Cir. 1990).

ARGUMENT

POINT I

THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT A FINDING BEYOND A REASONABLE DOUBT THAT MR. Xxxx INTENDED TO DISTRIBUTE THE 1.694 GRAMS HE ALLEGEDLY POSSESSED.

The Standard of Review

When the Government rested its case, Mr. Xxxx's attorney moved for a judgment of acquittal, arguing, in pertinent part, that the only evidence with which Mr. Xxxx was directly linked, the 1.694 grams of crack in nine ziplock bags allegedly found in his pocket, was "consistent" merely with possession, and not intent to distribute (III 83-84). (Of course, those drugs were the only ones Mr. Xxxx was charged with possessing.) At the close of all the evidence, Mr. Xxxx's attorney renewed his motion for a judgment of acquittal, focusing mainly on Mr. Xxxx's testimony that he had not possessed the drugs, but also referring to the "totality of the circumstances," including "that nothing tied Mr. Xxxx to anything except that exhibit," and arguing that "no reasonable juror at this point could do anything but find Mr. Xxxx not guilty" (V 119-120). Accordingly, Mr. Xxxx's challenge to the sufficiency of the Government's case is preserved for full appellate review. The ultimate question for the Court in assessing the legal sufficiency of the evidence is whether "a fair minded and reasonable trier of fact [could] accept the evidence as probative of a defendant's guilt beyond a reasonable doubt." In re Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1537 (1994) (quoting In re Joyce, 506 F.2d 373, 376 (5th Cir. 1975)). The answer here must be, "No."

The Proof that Mr. Xxxx Possessed Only an Amount of Crack that is Consistent with Personal Use Failed to Satisfy the Government's Burden to Prove Intent to Distribute.

Very recently, in United States v. Stephens, 23 F.3d 553 (D.C. Cir. 1994), this Court found that intent to distribute crack was not sufficiently proved by evidence consisting of: (1) defendant McCray's possession of $511 in cash, (2) his arrest in a "high drug area," and (3) Officer David Stroud's testimony that the 5.9 grams of crack McCray possessed was above the 5-gram maximum that Stroud estimated hard-core drug users would normally possess. Id. at 555-558. The Court's analysis in Stephens pertains to this analogous case and requires a reversal here, as well.

Stroud testified at the instant trial that the 1.694 grams of crack in nine bags allegedly possessed by Mr. Xxxx was "more consistent with" "distributing to others" than with "personal use" (III 39). The only explanations he gave for this initial conclusion were (1) that the amount could have been bought in bulk for about $100 and resold in the nine bags for $180, (2) that a drug user would not buy nine bags for himself because he might be cheated with simulated crack, and (3) that a dealer would not sell nine bags to one person, because only a rookie police officer or an informant would buy that many (III 39-40). Stroud conspicuously did not testify--and his testimony in Stephens reveals why he could not--that no addict would possess 1.694 grams for his personal use.

Consideration of the circumstances precludes application of Stroud's reasoning to Mr. Xxxx. Mr. Xxxx was alone in the living-dining room area when the police broke into Ms. Souder's home at 1:00 a.m. Even apart from Mr. Xxxx's undisputed testimony about his close relationship with Ms. Souder, he must have held some status of personal trust. If crack was being sold from the home and if he did possess the 1.694 grams, he might well have obtained it there. And as a buyer who had a mutually trustful personal relationship with the seller, he obviously could have bought the nine bags, and the seller could have sold them to him, without fear.

As for the possibility that Mr. Xxxx bought the crack in bulk and cut and packaged it to sell for $80 profit, more than a possibility is required to support a finding of intent to distribute. In Stephens, where the crack was in bulk, the Court wrote, "That it would have been possible for him to make a profit by dividing the 5.9 grams and selling it in smaller pieces is not evidence that he had the intent to do so." 23 F.3d at 557. Moreover, here, as in Stephens, the price (if any) paid by Mr. Xxxx was not proved. If he were a trusted customer, he would not even necessarily have had to pay a premium for taking 1.694 grams in nine bags rather than in a single rock.

In Point II, below, we argue that it was improper for the prosecutor to elicit Stroud's testimony that his opinion about the existence of an intent to distribute and a "drug operation" was only strengthened, successively, by the proximity of Mr. Xxxx's rhetorical surrogate to the video box containing empty bags and razor blades, by the paraphernalia found in bedroom number 2, by the crack found in bedroom number 3, by the pagers found there, too, by the purported evasive maneuver of Gregory Souder's unnamed stand-in, and by the $295 he had on his person. Here, we simply submit, as counsel argued below, that all these facts failed to prove an intent on Mr. Xxxx's part to distribute crack. He was alleged to have actually possessed nothing significant but the personally usable amount of 1.694 grams of crack in nine bags. He did not even have much money (he claimed $38, not seized), which makes it unlikely that he had done or was about to do business. He was undisputedly not a resident in the Souder home, and he was only near the closed video box, which someone with guilty knowledge of its contents probably would have hidden or moved away from when the police knocked and announced their purpose.

If drugs had been in the video box, Mr. Xxxx's mere proximity to it would not have sufficed as proof that he constructively possessed them. See, e.g., United States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985) (presence of contraband in jointly occupied residence, without more, insufficient to prove any occupant's constructive possession); United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980) ("mere presence at the scene of a drug transaction or mere proximity to drugs seized is not sufficient to establish guilt" [emphasis in original]). Therefore, it was no more than speculation that he had used the contents of the video box--razor blades and ziplock bags--to package the crack he allegedly did possess.

In Stephens, the Court rejected the Government's contention that intent to distribute the drugs possessed was proved by the defendant's presence in a "high-narcotics area." Finding that presence "irrelevant," the Court observed, "Both buyers for redistribution and buyers for personal consumption must, of necessity, buy their drugs in places where drugs are sold." 23 F.3d at 557. That truth applies here, as well. Mr. Xxxx was merely present in a place the Government contended was a base for drug distribution; that fact did not make it more probable that he was a drug dealer than a drug consumer.

The Grand Jury did not see fit to charge Mr. Xxxx and Mr. Souder with belonging to a drug conspiracy, with jointly possessing any drugs, or with aiding and abetting each other. They were separately charged, and, as the judge told the jury, "Each of the defendants is being tried separately in this case. We have joined them together solely for the purpose of judicial economy" (II 19). The prosecutor's attempt to prove the two men's joint participation in a drug operation was transparently calculated to compensate for the absence of proof that Mr. Souder possessed the drugs found hidden in his jointly occupied bedroom and that Mr. Xxxx intended to sell the relatively small amount of drugs allegedly found in his pocket. While understandable, this strategy was futile. The judgment convicting Mr. Xxxx of possession of cocaine base with intent to distribute cannot stand.

POINT II

THE JUDGE ERRONEOUSLY ADMITTED TESTIMONY BY THE EXPERT WITNESS, REFERRING TO THE PHYSICAL EVIDENCE DISPLAYED TO HIM, THAT THE DRUGS THE INDICTMENT SEPARATELY ATTRIBUTED TO EACH OF THE DEFENDANTS WERE POSSESSED WITH INTENT TO DISTRIBUTE IN A JOINT "DRUG OPERATION."

The Standard of Review

Both defense counsel objected to Officer Stroud's expert testimony to the effect that the circumstances allegedly observed by the police proved that a drug packaging and distribution operation was going on in the Souder home, and that the proximity of the defendants' rhetorical surrogates to certain items of evidence proved their participation in the operation and their intent to distribute crack (III 22-23, 41-43). The claim that the testimony in these categories was improper was therefore preserved for full appellate review, and in performing such review of the admission of expert testimony, the Court will reverse if it finds an abuse of discretion. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993). To the extent that Stroud's testimony was not objected to, the Court reviews the admission of the testimony for plain error. See Fed.R.Crim.P. 52(b). "[T]o achieve reversal under the plain error standard, the appellant must show that the complained of error was plain in the sense of being obvious, and that the error substantially undermined the fairness of the trial." United States v. Simpson, 992 F.2d 1224, 1228 (D.C. Cir.), cert. denied, 114 S. Ct. 286 (1993), citing United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1985).

Stroud's Testimony Violated Federal Rule of Evidence 704(b) by Making Clear to the Jury His Opinion on the Ultimate Issue in the Case.

Claims that the admission of expert testimony by Officer David Stroud violated Rule 704(b) of the Federal Rules of Evidence have been addressed in several of this Court's published opinions. United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993); United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992); United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992). See also United States v. Clarke, No. 91-3313 (D.C. Cir. May 20, 1994) (Detective Rawls' expert testimony); United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988) (Officer Coates' expert testimony). The Court has yet to find reversible error, but it has found Stroud's testimony "troubling," Williams, 980 F.2d at 1466, and has warned that "Rule 704(b) commands the expert to be silent" about the "defendant's actual mental state." Dunn, 846 F.2d at 762. See also, Mitchell, 996 F.2d at 422. In this case, despite the prosecutor's perfunctory circumlocutions and the judge's ritualistic interventions to elicit Stroud's disclaimers of personal knowledge, the entirety of Stroud's testimony about the evidence of a drug operation and intent to distribute blatantly invaded the jury's province and prejudiced Mr. Xxxx.

In Mitchell, the Court found a violation of Rule 704(b) where the trial judge permitted the prosecutor to ask Stroud his opinion of the "intent of the person who was carrying those nine ziplocks" and Stroud answered, "It was intent to distribute." Previously, in Williams, 980 F.2d at 1466, the Court had held that the rule was not violated where, in response to a question about the "intentions of the person who possessed those bags," Stroud testified, "These bags were meant to be distributed at street level." As the Court explained in Mitchell, the testimony in Williams was saved by the fact that Stroud's answer pointed more to the purpose for which the bags were designed than to the mental state of the person carrying the bags, plus the fact that the trial judge immediately intervened "to underscore the witness' total lack of knowledge about the actual case before the jury." Mitchell, 996 F.2d at 422.

The prosecutor's question in Mitchell was "almost identical to that in Williams," but Stroud's answer--"[i]t was intent to distribute"--"pointed much more directly to the mental state of 'the person who was carrying those ziplocks.'" Mitchell, 996 F.2d at 422. Consequently, the Court found "Officer Stroud's testimony to cross the line implicit in Williams, and to violate Rule 704(b) under our current law." Id. That line was crossed in the instant case, as well.

Here, it is indisputable that Stroud's testimony about the intent of the prosecutor's hypothetical "persons" was directly based on the physical evidence that the prosecutor aggregated and displayed to him. First, the prosecutor showed him the bags allegedly found on Mr. Xxxx and the DEA-7 reporting the weight of 1.694 grams, then the prosecutor asked whether, if "a person" possessed that evidence, it was "more consistent" with "that person's personal use or for distributing to others," and Stroud duly answered, "Distributing to others" (III 39). Next, the prosecutor showed Stroud the video box and its contents (the razor blades and bags), and after the judge overruled the defense objections, the prosecutor placed Mr. Xxxx's surrogate, the "hypothetical person with the nine ziplocks in his pocket," a few feet away from the video box, and asked whether Stroud still thought "that person's possession was consistent with distribution," to which the witness responded that this information "would just enhance" his opinion,

Because anybody who is in close proximity to all the equipment we have here for cutting purposes and then distribution purposes, in my opinion, would have to be involved in a distribution operation, because you have -- your tools are here, you have the drugs on his person. That's all I need.

(III 44)

The prosecutor went on to parade the rest of the physical evidence and the alleged circumstances before Stroud, with unsurprisingly consistent results. And when they got around to the 24.70 grams of crack found under the mattress in bedroom number 3, Stroud not only testified that it was "for" (the prosecutor's word) "[i]ntent to distribute"; he went on to explain that his conclusion was based on "the equipment you showed me earlier," and the fact that "I already recovered nine bags of crack cocaine that are already [sic] ready to hit the street" (III 49-50). He continued this process of referring back to the evidence he had seen previously as he stated and repeated his opinion that a drug operation was going on (III 53, 74).

Stroud's obligatory disavowals of personal knowledge could not possibly have counterbalanced the prejudicial impact on the jury of his constant references to the actual drugs and paraphernalia in evidence and his clear projection of himself into the case. Only if he had used the defendants' names, or pointed at them, could he have made his opinion of their intent more explicit. Thus, he expressed his "expert" opinion on the ultimate issue of the actual defendants' mental states at least as directly as he did in Mitchell. The entire examination of him by the prosecutor made a mockery of Rule 704(b), and no juror would have been given the proper perspective on his testimony by the judge's interjections and Stroud's fawning responses.

Especially after the Court's decisions in Boney and Williams, the error in admitting all this improper expert opinion testimony was obvious, and it certainly affected Mr. Xxxx's substantial rights. See United States v. Olano, 113 S. Ct. 1770, 1777 (1993). In Mitchell, the Court found error because Stroud's answer to the prosecutor's question about "the intent of the person who was carrying those ziplocks" was less ambiguous than his answer in Williams, and also because there was no judicial intervention to clarify Stroud's lack of personal knowledge. Mitchell, 966 F.2d at 422. However, the Court found the error non-prejudicial and reached the conclusion that it was not "plain" for several reasons. First, the prosecutor's question about "the person," while lacking a specific referent, inferentially pointed only to codefendant Wilson, from whom the drugs had been seized, and not to Mitchell and codefendant Bowe, who had raised the issue on appeal. Id. at 423. Second, the evidence that the defendants actually sold crack cocaine to an undercover police officer provided substantial evidence of the defendants' intent to distribute quite apart from Stroud's testimony. And third, the trial judge twice issued jury instructions on the limits of expert testimony. Id.

In the instant case, there was no ambiguity--not a conceivable question as to the identity of "the person" Stroud was referring to at any time. Both the prosecutor's questions to Stroud and Stroud's answers referred explicitly to the drugs in evidence and the persons who had allegedly possessed them. Moreover, there was no evidence other than Stroud's testimony that Mr. Xxxx possessed the 1.694 grams of crack with the intent to distribute. In Mitchell, there was eyewitness testimony from an undercover police officer that the defendants actually had sold cocaine to her. Here, there was no evidence that Mr. Xxxx made any sales at all. Although the trial court did issue standard expert witness instructions (III 35-36; VI-B 12), those instructions in no way suggested that an expert is unqualified to give his or her opinion on the mental state of a defendant. The instructions stated that the jury was not bound by the expert's opinion, but they implied that the opinion should only be disregarded if the expert had insufficient education or experience, gave reasons for his opinion that were "not sound," or if the opinion was "outweighed by other evidence." Thus, the jury was led to believe, incorrectly, that Stroud's opinion--that the person who possessed the 1.964 grams was a crack dealer, who intended to distribute what he possessed--was entitled to a presumption of trustworthiness, and the jury was given no meaningful option to reject that presumption. It must be concluded that the judge seriously abused her discretion in admitting Stroud's testimony, and that a reversal of Mr. Xxxx's conviction is required.

POINT III

IN DECIDING TO ISSUE MISSING WITNESS INSTRUCTIONS AND PERMITTING THE PROSECUTOR TO ARGUE AN ADVERSE INFERENCE AGAINST BOTH DEFENDANTS, THE JUDGE ERRED, BECAUSE THE ABSENT WITNESS WAS NOT PECULIARLY AVAILABLE TO MR. Xxxx AND COULD NOT HAVE TESTIFIED FAVORABLY TO EITHER DEFENDANT WITHOUT INCRIMINATING HIMSELF.

The Standard of Review

Both defendants objected to the prosecutor's proposed comments on their failure to call Derrick Souder and to the judge's issuance of missing witness instructions as to him. Accordingly, the propriety of the judge's decision to permit the comments and give the missing witness instructions was preserved for appellate review. The Court must determine whether the decision was an exercise of "sound judicial discretion." Morrison v. United States, 365 F.2d 521, 524 (D.C. Cir. 1966).

The Impropriety of the Adverse Inference Advocated by the Prosecutor

In opposing the prosecutor's request for missing witness instructions and for permission to make a missing witness argument about Derrick Souder, Mr. Xxxx's attorney aptly urged the judge to read United States v. Pitts, 918 F.2d 197 (D.C. Cir. 1990). There, this Court reversed the drug possession conviction of a defendant who had claimed at trial that his traveling companion, who was never brought to court, owned the bag in which interdiction police found the drugs. In the District Court, defendant Pitts had made the same claims that Mr. Xxxx made here: that he did not have a "peculiar" ability to produce the absent person, Polk, and that if produced, Polk would have had a Fifth Amendment privilege against testifying in support of the defense theory that he was the sole owner of the drugs. Id. at 199.

In Pitts this Court found, first, that because the Government had possessed Polk's name and his destination before trial, it might have been able to "track him down" as readily as might the defendant. Id. at 199-200. Second, the Court agreed that even if Pitts were more able to produce Polk than the Government, the "critical consideration is that Polk clearly had a Fifth Amendment privilege against testifying." It noted that if Polk had testified, he "more likely" would have been a hostile witness, trying to protect himself, and concluded that the adverse missing witness inference was improper because Polk was "a witness who could not be expected to support the defendant's version even if it were accurate." Id. at 200. The same conclusion is required here.

Unfortunately, the judge in this case seems to have based her ruling for the Government primarily on the fact that Derrick Souder still frequented the home of his mother and brother. The judge's analysis was initially flawed because, as Gregory Souder's counsel pointed out, Derrick Souder's recent whereabouts did not make him less available to the Government, which had cases pending against him in Superior Court (V 144). Moreover, as Mr. Xxxx's counsel asserted and the judge apparently agreed, Derrick Souder was not at all peculiarly available to Mr. Xxxx (V 146-147, 155). "[D]rawing any inference from a party's failure to call a witness equally available to both sides is impermissible. [citation omitted]" United States v. Anchondo-Sandoval, 910 F.2d 1234, 1238 (5th Cir. 1990); see also United States v. St. Michael's Credit Union, 880 F.2d 579, 598 (1st Cir. 1989); United States v. Pollard, 790 F.2d 1309, 1314 (7th Cir. 1986). Thus, it was unreasonable and unfair, especially to Mr. Xxxx, for the prosecutor to assert at the end of his rebuttal argument that because Derrick Souder "was not going to say the things that would help," "they kept him away" from the witness stand (VI 33-34).

Mr. Xxxx testified that he did not possess the drugs that Officer Regan claimed to have taken from him and that when Regan displayed the drugs to him, Regan said, "Clean, I told you I would get you. I don't know why you keep taking your mother through these changes" (V-A 7, 13). "Clean" was Derrick Souder's nickname (V-A 8). Thus, Mr. Xxxx's defense was that he had been falsely accused of possessing the drugs because he had been mistaken for Derrick Souder, who may indeed have been a drug dealer, as evidenced not only by the drugs hidden in the bed he normally occupied, but also by the pager in his name that had received 4,282 calls in eight months (V 21-22). As the Court said in Pitts,

His defense depended on the jury's view of his credibility and its decision to accept the explanation that the drugs were . . . not his. On both scores the jury may well have been influenced by the prosecutor's argument and the missing witness charge.

918 F.2d at 201.

The "critical consideration" under Pitts--whether Derrick Souder would likely have refused to testify--manifestly should have been resolved against the Government. The prosecutor contended below that Pitts was distinguishable because there, the Government alleged at trial that the absent witness was an accomplice, who therefore clearly would have had reason to invoke his constitutional right not to testify, whereas here, no connection had been proven between Derrick Souder and the drugs (V 149). The implication that Derrick Souder had nothing to fear was disingenuous, particularly in light of the prosecutor's earlier acknowledgement of the prosecution of Derrick Souder in Superior Court for drug and gun offenses and his need for counsel to advise him of his Fifth Amendment rights if he were called at the instant trial (II 6). Moreover, apparently Ms. Souder either was or had been charged in Superior Court together with Derrick Souder, and she had invoked the Fifth Amendment in this case (H. 27-30; II 6). At trial, if Derrick Souder had been called to the witness stand, the defendants surely would not even have been allowed to ask him whether he was a drug dealer and whether the drugs and paraphernalia in evidence were his, because he surely would have refused to answer. As Pitts observed, "A witness may not be put on the stand for the purpose of allowing the jury to watch him 'take the Fifth.'" 918 F.2d at 200, citing Bowles v. United States, 439 F.2d 536, 541-542 (D.C. Cir. 1970) (en banc), cert. denied, 401 U.S. 995 (1971).

In determining whether a witness is entitled to assert his Fifth Amendment privilege, a court ordinarily must consider, first, "whether answers to the questions might tend to reveal that the witness has engaged in criminal activities," and, if so, "whether there is a risk, even a remote risk, that the witness will be prosecuted for the criminal activities that his testimony might touch on." In re Corrugated Container Antitrust Litigation, 620 F.2d 1086, 1091, rehearing denied, 625 F.2d 1016 (5th Cir.), cert. denied, 449 U.S. 1102 (1980). If Derrick Souder had testified, the defendants' main hopes of his support for their contentions would have lain in questions designed to elicit his testimony that he did sleep in the bed where the drugs were found, that the pager in his name was in fact his and that he had received 4,282 calls on it, and that his nickname was "Clean." But any attorney advising the witness would have been required to tell him that such testimony would at least "tend" to incriminate him and that there was at least a "remote risk" that it would lead to a new, federal prosecution against him. So Derrick Souder, like the absent witness Polk in Pitts, almost certainly would either have invoked his privilege or have been a hostile witness if called by the defendants. The adverse inference from his absence was therefore utterly impermissible. See United States v. Simmons, 663 F.2d 107, 108 (D.C. Cir. 1979); United States v. Young, 463 F.2d 934, 942 (D.C. Cir. 1972); Morrison v. United States, 365 F.2d 521, 524 (D.C. Cir. 1966). By itself, and a fortiori in combination with the admission of Stroud's testimony, the judge's error with respect to the missing witness inference requires reversal.

CONCLUSION

For the reasons set forth above, the judgment convicting Mr. Xxxx should be reversed or vacated, and the case remanded with appropriate instructions.

   Respectfully submitted,

   A. J. KRAMER

   FEDERAL PUBLIC DEFENDER

   ________________________________

   Allen E. Burns

   Assistant Federal Public Defender

   625 Indiana Avenue, N.W. Suite 550

   Washington, D.C. 20004

   (202) 208-7500

CERTIFICATE AS TO LENGTH OF BRIEF

I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).

   _________________________________

   Allen E. Burns

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of Appellant's Brief and one copy of Appellant's Appendix has been hand-delivered on August 12, 1994, to John R. Fisher, Chief, Appellate Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

   ________________________________

   Allen E. Burns