RELATED CERTIFICATE AS TO PARTIES, RULINGS, AND CASES

Pursuant to Circuit Rule 28(a)(1), appellant, Francis I. xxxxx, states as follows:

A. Parties and Amici.

The parties to this appeal are appellant, Francis I. xxxxx, 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 May 11 through 13, 1993. The matters in issue on appeal are: (1) the judge's admission of evidence of a prior offense pursuant to Fed. R. Evid. 404(b) (Appendix at 24-30, 35, 74); (2) the judge's refusal to issue a missing witness charge and to permit defense counsel to refer in closing argument to a non-testifying police officer who had allegedly witnessed the disputed transaction (Appendix at 96-98); and (3) the prosecutor's comments in closing argument upon the defendant's failure to dispute or present evidence to contradict the evidence of possession (Appendix at 99-99a, 114-115).

C. Related Cases.

There are no related cases. This case has not previously been reviewed by this or any other court.



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________________



NO.

_____________________________________________



UNITED STATES OF AMERICA,



Appellee,



v.



FRANCIS I. xxxxx,



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 judge erroneously admitted, pursuant to Fed. R. Evid. 404(b), proof of Mr. xxxxx's mere possession of a small amount of drugs more than 10 months prior to the possession charged in this case.

2. Whether the judge erroneously refused to issue a missing witness instruction and precluded defense counsel from referring in closing argument to the absence of testimony from a second officer who had allegedly witnessed the disputed transaction.

3. Whether the prosecutor violated Mr. xxxxx's right not to testify and to rely on the presumption of innocence by commenting in closing argument on the defense's failure to "dispute," or present "testimony" to contradict, the evidence of possession.

STATEMENT OF THE CASE



Procedural Background

In a two-count indictment filed on September 10, 1992, appellant Francis I. xxxxx was charged with possessing five grams or more of cocaine base on or about August 12, 1992 with intent to distribute, and with doing so within 1000 feet of a school (21 U.S.C. 841(a)(1), 841(b)(1)(B)(iii), 860). Mr. xxxxx pleaded guilty to the second count on December 9, 1992, but on March 2, 1993, he was permitted to withdraw the plea. He pleaded guilty again on April 1, 1993, but again, on April 22, 1993, he was permitted to withdraw the plea. On April 30, 1993, after a hearing, his motions to suppress physical evidence and statements were denied, and he does not challenge those dispositions on appeal. From May 11 through 13, 1993, he was tried by a jury, and he was convicted of both charges. On May 21, 1993, the court dismissed the first count and sentenced Mr. xxxxx on the second count to 120 months' imprisonment, eight subsequent years of supervised release, and a special assessment of $50.

The Pretrial Determination of the Admissibility of Evidence Pursuant to Fed. R. Evid. 404(b)

Before the suppression hearing on April 30, 1993, the judge considered and granted the Government's application pursuant to Fed. R. Evid. 404(b) to introduce, as part of its case in chief at trial, evidence of a prior instance of drug possession (Tr. 4/30 9-14). (1) Initially, the prosecutor said that the other crime took place on October 2, 1992, about two and one-half months after the instant offense (Tr. 4/30 10). However, he later corrected the record to reflect that the prior offense had occurred on October 2, 1991, more than ten months before the alleged instant offense (Tr. 5/3 87-88). The judge noted the correction but adhered to her decision, explaining that the time factor was only part of her rationale, and ten months "still is a comparatively short period of time" (Tr. 5/3 88). She said, ". . . it still is the similarity, the unusual similarity of the circumstances involved herein which generated the ruling that I made last week, and I will reinforce and reaffirm that ruling" (Tr. 5/3 88).

According to the prosecutor in the initial colloquy, the prior charge was still pending in Superior Court (Tr. 4/30 10). Allegedly, Mr. xxxxx had been found in possession of 41 individual loose rocks of "cocaine" (he did not allege that they were cocaine base, and he did not specify their weight) on the same block where the instant offense was claimed to have occurred (Tr. 4/30 10). The Government's notice of intention to introduce the evidence stated that Mr. xxxxx had been "detained" for "disorderly conduct," and that during the ensuing pat down, when the officer had patted his sock, he had run and the bag containing the rocks had fallen out of his sock (A. 16). The notice argued,

In the case at bar, evidence of the defendant's prior bad act will illustrate the defendant's mode of operation -- particularly with respect to his means of alluding [sic] the police, as well as his motive and intent with respect to possession of the narcotics. The evidence would also rebut claims of mistake or accident. Given the similarity in location and events, this evidence should be admissible in the government's case-in-chief.

(A. 17) In court, the prosecutor again argued that the evidence was relevant to prove intent in this case, where Mr. xxxxx had allegedly kept both the money from his transactions and the drugs in a sock, as well as to prove "mode of operation" and lack of mistake (Tr. 4/30 10).

Defense counsel argued that the alleged other crime was too remote in time and that the only similarities were the possession of drugs and the location (Tr. 4/30 11). He pointed out that here, Mr. xxxxx was charged, not with possessing separate rocks, but with possessing a single, large block of cocaine base (Tr. 4/30 11). He argued that the prior offense evidence would only show a "predisposition" to "possess quantities of cocaine that are going to be distributed," and he pointed out that if the defense claimed mistake, the prosecution could introduce the evidence in rebuttal (Tr. 4/30 12).

The judge noted that in this case, the sock containing the drugs had been kept in Mr. xxxxx's groin area (Tr. 4/30 12). Nevertheless, she found that both offenses had a "similar modus operandi," "a similar manner of secreting the substances, using the sock" (Tr. 4/30 13). Thus, she found that the relevance, or probative value, prong of the test for admission of the evidence was satisfied (Tr. 4/30 13-14). She then discussed prejudice:

The second prong is always more difficult to resolve, because always, to add another incident makes something prejudicial, and even highly prejudicial. Obviously, the jury will have to consider this incident, and if it does, some prejudice will attach. How much is impossible to say. But these events are close in time. These drugs were hidden in a sock in both instances. And this Circuit has stated in U.S. versus Moore, a 1984 case, that as [sic] the language of this rule tilts, as do the rules as a whole, they tilt towards the admission of evidence in close cases. This is a close case. In light of the rule of this Circuit where that balance should generally be struck in favor of admission when there is a close relationship to the event charged, and clearly there is a close relationship to the event charged, this prior event can come in. I will grant the Government's right to use 404(b) evidence in this case.

(Tr. 4/30 14)

The Government's Exploitation of the Ruling on Prior Crime Evidence, and the Judge's Instructions Concerning It

In the prosecutor's opening at trial, he said,Now, there's a last thing I want to talk about, too, that there's a pattern here, because ten months before, the defendant was arrested in the same block of Harvard Street, closer to Sherman Avenue. And you'll have a chance to hear the testimony about that. But basically, he had 41 rocks of cocaine, hidden in his sock again, and he had $300 worth of cash. And we'll prove through the testimony that there was the similarity of the clear plastic bags, similarity of the hiding spot, that being the sock; that he was working he same turf or the same area or marketplace, or whatever you want to call it, that he had been working on the same day he was arrested in this case, and that he again used the same sock as a hiding place.

(Tr. 5/11 37-38)

Before the Government introduced the evidence in question, the judge asked the prosecutor to remind her of the purpose of the evidence. The prosecutor responded, "Well, there was a pattern of certain types of behavior, use of the same area, use of the same hiding places, and actually the similar type of packaging for the drugs -- or absence of packaging, I guess" (Tr. 5/12 213-214). Defense counsel questioned what the similar hiding places were, and when the judge said she would listen carefully, counsel protested, "But by that time the cat will be out of the bag" (Tr. 5/12 214). In further colloquy, the court observed that there were socks in both cases, but in the prior case the sock was on Mr. xxxxx's foot, rather than in his groin (Tr. 5/12 214). Defense counsel stated that he saw no similarity there (Tr. 5/12 214). The court did not respond, however.

Officer Sheryl Harley-Holzwart, of the Metropolitan Police Department, testified about the alleged prior offense. On October 2, 1991, at about 2:46 a.m., she and her partner, Officer Womack, responded to a call to the area of Sherman Avenue and Harvard Street, and she saw Mr. xxxxx shouting profanities and screaming at another officer, who was fighting with "another subject" (Tr. 5/12 216-217). Officer Womack ultimately seized Mr. xxxxx and "placed him against the wagon to pat him down" (Tr. 5/12 218). When Womack's patting reached Mr. xxxxx's right ankle, he started to run away, and Womack, grabbing for his ankle, only caught and pulled back his sock, and a plastic bag fell out of it (Tr. 5/12 219). The witness performed a field test of the substance of the 41 "tiny" rocks in the bag Womack eventually gave her, obtaining a "positive" indication of "cocaine" (Tr. 5/12 220-222). The rocks were "smaller" even than a $10 size (Tr. 5/12 234). The witness placed the drugs in a heat-seal envelope and performed the routine securing procedures and paperwork (Tr. 5/12 221). In court, she identified the heatsealed bag, and, over defense counsel's objection, the drugs themselves were admitted in evidence (Tr. 5/12 221-222). (2) She also identified $297 in currency that her partner allegedly found in an unspecified location on Mr. xxxxx's person (Tr. 5/12 222-223). The judge's fear of confusion persuaded the prosecutor not to introduce the money in evidence, however (Tr. 5/12 223-224).

Following this witness' testimony, the judge instructed the jury as follows:

Ladies and gentlemen of the jury, this testimony has been provided to you for a limited purpose. The evidence was introduced and admitted only for your consideration of whether it tends to show the intent of the defendant to commit the offense for which he is now on trial, and the absence of mistake or accident as to whether the defendant committed the offense for which he is now on trial. The object that has been admitted in evidence, I believe it is Government's Exhibit No. 10, is similarly introduced and accepted into evidence solely for that purpose of your consideration and for the limited purpose I have described.

You are not required to accept this evidence, and whether you do or not is absolutely for you to decide. If you decide to accept it, you may do so only for the limited purpose that I have explained, and you may not consider this evidence as tending to show in any other way the defendant's guilt of the offense for which he is now on trial. (Tr. 5/12 235-236)

It should be noted that the Government never presented any proof that the 41 "tiny rocks" were in fact cocaine base, it did not prove their weight, and it did not present expert testimony that they constituted an amount that would not be possessed for personal use. Nor was any proof offered at trial of the pending status of the case based on the earlier alleged seizure.

Near the end of his closing argument, the prosecutor acknowledged the foregoing "special evidence" instruction as to use of the prior crime evidence to determine intent and absence of mistake or accident, and then he made the following statements:

Now, I would like you to consider a couple of things. First of all, remember Mr. Richmond [defense counsel] kept asking about individual little ziplock bags and that the detective [expert witness] explained sometimes they do use these little individual ziplock bags, one rock, one $20 rock in each bag. When you go back and compare, you can see that there are no little individual ziplock bags in the drugs in this case or the drugs from October, 1991 which he was caught with. That's just the way that he seems to package his drugs. That's the pattern of the way he did it. He didn't use individual ziplocks. He would break them off by sight when he was working out on the street.

And not only that, you can look at a few other things, too: the similarity of the packaging, the large clear plastic bag as opposed to smaller ziplocks [sic] bags; the fact that he was working the same area, the same turf. Remember Mr. Richmond kept asking about how do people just walk up? Can they tell just because you're a black man or something standing on the corner that you're a drug dealer? No, that's not how it works. They go to the area where people work. Well, I know Mr. xxxxx works this area. And you can consider that based on the fact that he was in the same block on different occasions with the same thing. That's part of the pattern of his operation.

Now, another thing you consider is the use of the sock for hiding the tools of his trade. In the October case, he hid the drugs in his sock; in this case, he hid the proceeds of the sales in his sock. But for both cases, similar type of activity. And that's what you can use that evidence for.



(Tr. 5/12 290-291; emphasis supplied)

Defense counsel did argue in his turn, referring to the expert testimony about drug packaging, that the absence of small ziplocks constituted one ground for a verdict of not guilty (Tr. 5/13 299-300). However, the overall theme of his closing argument was that the police testimony about Mr. xxxxx was incredible (Tr. 5/13 293-303). (3)

In her final jury instructions, the judge noted the evidence of the October, 1991 offense and the Government's contention that it "showed some similarity" to the instant offense, and she told the jury again, in language similar to that following the admission of the evidence, that the evidence could only be considered relative to Mr. xxxxx's intent and the absence of mistake or accident (Tr. 5/13 320-321).

The Other Evidence at Trial

Police Officer James Berling was the Government's primary witness against Mr. xxxxx. On August 12, 1992 at about 4:45 p.m., in response to complaints of drug deals in the area, he set up an observation post in the 1000 block of Harvard Street (Tr. 5/12 53). He was accompanied by an Officer Weeks, who also was there "to observe" (Tr. 5/12 53, 74). He tried to conceal himself, and then he began watching the area with binoculars (Tr. 5/12 54). He first saw only Mr. xxxxx, in conversation with a man who became known as Dorsey Lynch, and then he saw an apparent "drug transaction": another man approached Mr. xxxxx, who was in the mouth of an alley, and after a conversation, Mr. xxxxx walked into the alley with the man following; Mr. xxxxx then reached into his shorts, pulled out a sock, opened it, exposing a "large white rock," then apparently "took a small object from that substance and gave it to the older, elderly man," who gave Mr. xxxxx some money and walked out of the alley with him (Tr. 5/12 55). (4) Berling maintained that in "certain areas" of the District, dealers will "maybe have one big chunk and just break off pieces" (Tr. 5/12 85, 108). He inferred that Mr. xxxxx broke off a piece of the rock because the "transaction" took longer than usual (Tr. 5/12 109). He discussed what happened with his companion, Weeks (Tr. 5/12 75).

Berling radioed descriptions of both men and reported that he was going to leave his post and "move in," because "it appeared to be a lot of dope" and he wanted to "catch" Mr. xxxxx (Tr. 5/12 56-57). (5) He got in his car, drove around the block, pulled up next to Mr. xxxxx, got out, grabbed him, had him put his hands on a wall, patted him down, felt the bulge in his groin, and pulled the sock out, recovering the substance inside (Tr. 5/12 60). (Officer Weeks was still with Berling (Tr. 5/12 97).) Mr. xxxxx said, "I'm fucked," and he appeared to submit for handcuffing, but then he tried to run away, only to be stopped by several other officers who had just driven up (Tr. 5/12 60-61). Later, when Mr. xxxxx was at the police station, Berling claimed, he overheard him saying in a telephone conversation, "I guess you know where I am . . . . I've been locked up . . . . Run? How could I run? . . . . They jumped out on me. . . . All I had on me was a block. . . . I hope I have my chance -- I hope I have my choice where I will be locked up, because they kill people in there" (Tr. 5/12 61).

A field test at the scene--Berling could not remember if it was done in his presence--had indicated the presence of cocaine in the substance Berling had seized, and subsequently the substance was put in a heat seal envelope, Berling filled out the front of the envelope, then "it was sealed," and Berling dropped it in a locked box at the station (Tr. 5/12 65).

The other Government witness to events of August 12, 1992 was Investigator Jose Solloso, who was on the arrest team (Tr. 5/12 118). He testified that when he arrived on the scene in response to the radioed "lookout," Officers Berling and Weeks with Mr. Weeks and another male "subject" (Tr. 5/12 119-120). He saw Berling secure Mr. xxxxx and "immediately" pull a white sock from his waist area, at which time Mr. xxxxx said, "I'm fucked" (Tr. 5/12 120). Solloso helped restrain and handcuff Mr. xxxxx when he tried to flee, and then he searched him, recovering a pager and, from one of the socks he was wearing, $535 in denominations of $100, $20, $10, $5, and $1 (Tr. 5/12 121-122). One $20 bill was separate from the rest of the money (Tr. 5/12 123, 125-126).

On cross-examination, when Solloso could not remember whether or not the $20 bill was folded, defense counsel asked if he had discussed his testimony with the other officers, and he said he recalled one witness conference with them and the prosecutor, who took notes (Tr. 5/12 127-128). In another context, he acknowledged that he had not written anything down on August 12, and that he did not know whether any other officers had done so (Tr. 5/12 134-136). Finally, after he recounted his recollection of the lookout's description of the older man, he acknowledged that he did not know whether his current recollection was based on the original events or on the witness conference with the prosecutor (Tr. 5/12 138). On redirect examination, the prosecutor was permitted, over defense counsel's objection of irrelevance, to lead the officer to testify that he, the prosecutor, had not been at the crime scene and that he had no way of knowing what happened other than what the officers had told him (Tr. 5/12 142-143).

The Drug Enforcement Administration chemist testified that the substance in evidence had come to him in an intact, sealed envelope and that it was cocaine base in portions of 10.84 and 1.579 grams (Tr. 5/12 209). And a police officer testified that he had measured the distance from the alleged crime scene to the school and found it to be 910 feet, 7 inches (Tr. 5/12 145).

Expert testimony for the Government about the packaging and distribution of drugs and police procedures for handling them was

given by Detective Tyrone R. Thomas. He testified, among other things: that some crack dealers cut pieces off larger rocks when they sell, in order to suit buyers' demands and finances (Tr. 5/12 168-169); that the amount in evidence would break down into about 86 $20 portions or doses, all of which would not be possessed for personal use, much as an alcoholic would not buy 86 pints of liquor at once, and that a crack user would not risk buying so much and being cheated (Tr. 5/12 170-171); that the maximum number of doses a heavy crack user would consume would be 15 a day (Tr. 5/12 179); that drug dealers hide drugs in their crotches (Tr. 5/12 173); that "block" "could mean a large portion of cocaine" (Tr. 5/12 173); that drug dealers commonly hide in their socks items that they do not want the police to find (Tr. 5/12 173, 202-203); and that drugs distributed to street dealers are often packaged in small ziplock bags (Tr. 5/12 201).

The defense presented Clarence Glenwood Washington, who was in a wheelchair, to testify that he had been "just talking" with Mr. xxxxx for about ten minutes just before Mr. xxxxx was arrested (Tr. 5/12 247). The witness turned to go to a store to see if someone could get him a soda, and when he "turned back around, . . . the police had grabbed him" (Tr. 5/12 248). He saw nobody else talking to Mr. xxxxx while he was there--specifically no older black man with a beard (Tr. 5/12 249). He did not see the police recover any narcotics, money, or a pager from Mr. xxxxx (Tr. 5/12 252-253). On cross-examination, he acknowledged that the police gave him Mr. xxxxx's Walkman CD player, a wrist band, and his shoelaces, but that he had not seen the police take those items, either (Tr. 5/12 253-254).

The judge's Refusal to Issue a Missing Witness Charge or Permit Defense Counsel to Refer to Officer Weeks' Failure to Testify

At the charge conference, Mr. xxxxx's attorney asked for a missing witness charge concerning the absence of Officer Weeks, Berling's partner in the observation post, who "could further elucidate the transaction and give a different understanding" (Tr. 5/13 270). He acknowledged that he had not tried to subpoena Weeks; he explained that he had recalled (incorrectly (6)) that Berling was alone (Tr. 5/13 270).

The judge opined that a missing witness charge would not be "appropriate," first, because she "believe[d] that the witness would be equally available to both sides," and, second, because she was "not confident that this man could have shed any particular light on this case" (Tr. 5/13 270). Relative to the second point, she noted that Berling had the binoculars, and she had inferred from his testimony that Weeks could not have added or clarified anything (Tr. 5/13 271). Then, when the prosecutor asked whether defense counsel would be permitted to argue about Weeks' absence, the judge said that in light of her refusal to give the missing witness charge, such argument would be "inappropriate" (Tr. 5/13 272).

The Prosecutor's Assertions that the Evidence of Possession Was "Undisputed" and Not "Challenged" by "Testimony to the Contrary"

In his closing argument, the prosecutor said, "As a matter of fact, it's undisputed that he had the drugs. Nobody challenged the fact that he had the drugs" (Tr. 5/13 286). Then he pointed out that Mr. Washington had been unable to testify that he had seen the search of Mr. xxxxx, and he said, "So that testimony is undisputed, that these drugs came from him" (Tr. 5/13 287). Defense counsel, in his turn, argued at length that Officer Berling's testimony, from his purported observations to his securing of the drugs allegedly seized, was not credible (Tr. 5/13 293-298, 301). He also suggested that Solloso had used the "witness conference" to "concoct" his testimony (Tr. 5/13 299).

In rebuttal, responding to defense counsel's argument about Solloso's testimony, the prosecutor said, "The evidence is what it is. I've argued about it, but I think it's pretty clear that it's undisputed" (Tr. 5/13, 307). And finally, the prosecutor said, in the penultimate paragraph of his rebuttal, "The evidence we presented here is unrefuted. There is no challenge to the fact that he had drugs on his person. No testimony to the contrary" (Tr. 5/13 310).

The Jury's Deliberations and Verdict

The jury began deliberations at 1:15 p.m. on May 13, 1993 (Tr. 5/13 332). At 1:46 p.m., the jury issued this note: "We would like to see the evidence plastic bag of drugs found on Francis I. xxxxx" (A. 19). The transcript indicates nothing about the note. The guilty verdict was rendered at 2:36 p.m. (Tr. 5/13 336).



SUMMARY OF ARGUMENT

Mr. xxxxx was denied his due process right to a fair trial, first, by the erroneous admission of evidence of his possession--10 months before his arrest for possession of a "large" rock of crack in the instant case--of 41 "tiny" rocks, of unspecified weight but smaller than $10 size, which had field tested as "cocaine" but were not proven to be crack. The judge found and the prosecutor argued to the jury that the prior possession proved a modus operandi, but the primary factor underlying that conclusion was the use of socks to hold the drugs, and on the earlier occasion, the container sock had been on Mr. xxxxx's foot, while in this case, it was allegedly in his groin. Moreover, while the instant possession allegedly followed a transaction, the prior one did not. The two possessions were just not distinctly similar, so the prior possession had no relevance but to suggest a propensity to possess drugs, which is prohibited by Fed. R. Evid. 404(b).

Mr. xxxxx was also denied a fair trial by the judge's refusal to issue a missing witness charge as to the non-testifying officer who had observed the alleged but disputed transaction from the observation post. This and the related restriction of defense counsel's closing argument were rendered more unfair by the prosecutor's comments in closing argument on the defense's purported failure to dispute or present evidence to contradict the charge of possession. Those comments violated Mr. xxxxx's Fifth Amendment right not to testify and to rely on the presumption of innocence.



ARGUMENT

POINT I

THE JUDGE ERRONEOUSLY ADMITTED, PURSUANT TO FED. R. EVID. 404(b), PROOF OF MR. xxxxx'S MERE POSSESSION OF A SMALL AMOUNT OF DRUGS MORE THAN 10 MONTHS PRIOR TO THE POSSESSION CHARGED IN THIS CASE.



The Standard of Review



Both before and during trial, defense counsel opposed the admission, pursuant to Fed. R. Evid. 404(b), of evidence of prior drug possession by Mr. xxxxx. He argued that the alleged prior possession was remote in time, that it was different in significant ways from the alleged facts in this case, and that it would only suggest to the jury that Mr. xxxxx had a predisposition to possess drugs (Tr. 4/30 11-12; Tr. 5/12 214). Accordingly, the issue is preserved for full appellate review. See Fed. R. Crim. P. 51. The trial court's determination of whether the evidence was relevant for a proper purpose under Rule 404(b) is reviewed for legal error de novo, while the required determination under Fed. R. Evid. 403 of whether, if relevant, the evidence was more probative than prejudicial is reviewed for "grave abuse"--reversal being required despite the relevance if the "probative value is substantially outweighed by the danger of unfair prejudice." See United States v. Manner, 887 F.2d 317, 321-322 (D.C. Cir. 1989) (quoting United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984) and authorities cited therein).

The Evidence of the Prior Possession Was Introduced Only to Prove Mr. xxxxx's Propensity to Possess Drugs.



Rule 404(b) prohibits the admission and use of evidence of other crimes "to prove the character of a person in order to show action in conformity therewith." The rule goes on to list examples of facts, such as intent, that may properly be proved by other crimes evidence. Accordingly, as the Supreme Court has written and this Court has recognized, "[t]he threshold inquiry a court mast make before admitting similar acts evidence under Rule 404(b) is whether the evidence is probative of a material issue other than character." Huddleston v. United States, 485 U.S. 683, 686 (1988); United States v. Miller, 895 F.2d 1431, 1435 (D.C. Cir. 1990). In other words, the rule "'countenances admission of "bad acts" evidence that is relevant to any issue in the case except to show the likelihood that, having once fallen into sin, a second slip is likely. [citations omitted]'" United States v. Perholtz, 842 F.2d 343, 358 (D.C. Cir. 1988). The record clearly demonstrates that the prosecutor here introduced the evidence in question for just that forbidden purpose.

The judge told the jury that the evidence of Mr. xxxxx's prior possession could be considered only as proof of "the intent of the defendant to commit the crime for which he is now on trial, and the absence of mistake or accident" in his committing the offense (Tr. 5/12 235-236; Tr. 5/13 320-321). However, she did not relate these instructions to the particular allegations in the case. Thus, on their face, the instructions permitted the jury to reason that because Mr. xxxxx had possessed drugs before, he probably intended to, and did, do so again. The judge certainly did not tell the jury not to draw such an inference of criminal propensity.

And, of course, the prosecutor's only specific contention as to the relevance of the evidence to the facts of this case, both in urging the judge to admit it and in arguing about it to the jury, was that it proved Mr. xxxxx's purported modus operandi, "a pattern" of selling drugs in the same location and using socks to hide them (Tr. 4/30 10; Tr. 5/11, 37-38; Tr. 5/12 290-291). (7) Indeed, in deciding to admit the evidence, the judge referred only to the "similar modus operandi" in both cases; she did not make a finding that the evidence was relevant to intent (Tr. 4/30 12; Tr. 5/3 88).

A distinctly similar modus operandi was not proved, however. The prosecutor made much of Mr. xxxxx's alleged use of socks in his purported drug selling business. However, in October, 1991, Mr. xxxxx had allegedly kept his drugs in the sock on his foot. In August, 1992, he had allegedly kept them in a sock in his groin. That the judge recognized this dramatic difference during trial and still adhered to her ruling (Tr. 5/12 214) is inexplicable. Moreover, there were other significant differences between the two cases.

As defense counsel pointed out to the judge, in the 1991 case there was no evidence that a sale had recently taken place when Mr. xxxxx was seized and searched. He had been detained and searched after he shouted at an officer who was fighting with another civilian (Tr. 5/12 216-217). Further, obviously, the physical form of the drugs possessed was very different: many "tiny" rocks in 1991, as opposed to a single large rock in 1992. Moreover, the Government never proved that the substance Mr. xxxxx possessed on the earlier occasion--which had field tested positive for "cocaine"--was in fact cocaine base, the drug involved in the instant case. Nor did the Government prove that substance's weight, or that it had any particular characteristic indicative of possession with intent to distribute. Indeed, the seizing officer testified that the 41 "tiny" rocks were even "smaller" than $10 size (Tr. 5/12 220-222, 234). So, because the drug use expert testified that a heavy user might consume 15 $20 rocks a day (Tr. 5/12 170-171, 179), it was quite possible that Mr. xxxxx had possessed the 41 rocks of less than half that size for his own personal use.

It follows inevitably that the evidence of the prior crime was far from sufficient to establish that Mr. xxxxx had a distinctive modus operandi as a drug dealer. In a very recent opinion, the Ninth Circuit was unpersuaded by the Government's modus operandi rationale for the admission of evidence of prior drug deals which only had in common the participation of one individual:

The dissimilarities of the earlier and later acts also pose significant difficulties for the "modus operandi" theory put forward by the government on appeal. If a distinctive modus operandi can be discerned in acts this dissimilar, then it would appear that practically every high level drug dealer in the greater Los Angeles area has the identical modus operandi.

United States v. Mayans, F.3d , 1994 U.S. App. LEXIS 2103, *26 n.6 (9th Cir. February 9, 1994) Similarly here, if modus operandi is established by a purported crack dealer's mere possession, 10 months earlier, of an unproven weight of a substance in a different physical form that was only possibly cocaine base--the only similar factors being Mr. xxxxx's presence in the same area and his use, in each case, of a non-distinctive single plastic bag--then practically all prior drug possessions by alleged drug dealers will be admissible despite Rule 404(b)'s prohibition of propensity proof, and justice will be mocked on a grand scale.

In United States v. O'Connor, 580 F.2d 38 (2d Cir. 1978), where the defendant was charged with taking bribes, the trial judge

admitted, under Rule 404(b), evidence that the defendant had previously taken other bribes. The Second Circuit reversed, concluding, among other things, that the evidence was not relevant to show a unique pattern or plan:

The similar acts here were not part of a unique scheme so unusual "as to earmark them as the handiwork of the accused." See McCormick, Evidence 190, at 449 (2d ed. 1972). There is nothing unique about receiving bribes in cash each week without conversation or spectators.



Id. at 42. Likewise, in United States v. Lynn, 856 F.2d 430, 434-435 (1st Cir. 1988), a drug conspiracy case, the court found that the defendant's prior sale by himself was insufficiently similar to be properly relevant. See also United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985) (evidence of large-scale drug dealing five years previously did not tend to prove membership in charged drug dealing conspiracy). In this case, the alleged crime 10 months previously was not shown to be anything but a generic possession of a small quantity of a substance containing cocaine. It simply was not similar enough to the charged possession of more than 12 grams of crack with intent to distribute, after a purported sale, to justify its admission for a permissible purpose.

Although this Court has hardly displayed an eagerness to reverse convictions for Rule 404(b) violations, it has recently done so. In United States v. Simpson, 992 F.2d 1224, 1228-1229 (D.C. Cir. 1993), the Court found plain error in the prosecutor's questioning the defendant about a prior drug possession where the issue at trial was whether the defendant had actually possessed the drugs on the day of his arrest. "[T]he only purpose the initial question could have served was to demonstrate Simpson's criminal propensities." Id. at 1229. See also United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993) (citing Rule 404(b)'s prohibition of propensity proof in reversing because of prosecutor's implication in rebuttal argument that defendant's drug selling had been going on long before his arrest).

The prosecutor's arguments to the jury in this case (see Statement of Facts, supra, at 5, 8) demonstrate beyond dispute that he meant the jury to draw an inference of propensity to possess and sell drugs from the evidence of the prior possession. The jury's request during deliberations to see the drugs in the "plastic bag" (A. 19) suggests that they were swayed by the prosecutor's "pattern" claim. It cannot reasonably be concluded that the error in admitting the evidence was harmless. The conviction therefore cannot stand.



Even If the Prior Crime Evidence Was Relevant to Prove "Intent," its Probative Value Was Substantially Outweighed by the Danger of Unfair Prejudice.



Assuming arguendo that the evidence of the prior possession had some relevance, because of the dissimilarities discussed above its probative value was minimal. In United States v. James, 555 F.2d 992, 1000 (D.C. Cir. 1977), the Court observed, with reference to proof of the defendant's subsequent presence in an apartment that contained large amounts of heroin,

Granting that a person found in that situation might be more likely [to have intended earlier to distribute heroin], such an inference is so weak as to bring into serious question whether its contribution to the accuracy of the trial process outweighed the likelihood that its dramatic flavor would derange it.

The court went on to hold that the potential prejudice outweighed the evidence's "slight probative force." Id. at 1001. See also United States v. Foskey, 636 F.2d 517, 525-526 (D.C. Cir. 1980). If the other crime evidence in James had but "slight" legitimate probative value, a fortiori the evidence of prior drug possession here was incapable of counterbalancing the inevitable severe prejudice from the propensity inference advocated by the prosecutor.

The Fifth Circuit has recently reaffirmed its recognition that where the prosecutor emphasized the prior crime evidence, and one witness testified solely about it, the danger of unfair prejudice was "exacerbated." United States v. Ridlehuber, 11 F.3d 516, 523-524 (5th Cir. 1993); citing United States v. Zabaneh, 837 F.2d 1249, 1265 (5th Cir. 1988). Here, not only did one witness testify exclusively about the prior possession, but the prosecutor placed in evidence the drugs Mr. xxxxx allegedly possessed in 1991. Given these tactics and the prosecutor's arguments to the jury, unfair prejudice must be found.

POINT II

THE JUDGE ERRONEOUSLY REFUSED TO ISSUE A MISSING WITNESS INSTRUCTION AND PRECLUDED DEFENSE COUNSEL FROM REFERRING IN CLOSING ARGUMENT TO THE ABSENCE OF TESTIMONY FROM A SECOND OFFICER WHO HAD ALLEGEDLY WITNESSED THE DISPUTED TRANSACTION.



The Standards of Review



Defense counsel requested a missing witness charge as to Officer Weeks, the second officer in the observation post. The refusal to issue a missing witness instruction is reviewed for abuse of discretion. United States v. Tarantino, 846 F.2d 1384, 1404 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988). The same standard of review pertains to the related restriction of defense attorney's closing argument; abuse of discretion will be found where such a ruling prevents defense counsel from making a point essential to the defense. United States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992).

The Non-Testifying Officer Was Not Practically Available to the Defense, and his Absence Was Significant in Light of the Defense Attack on the Arresting Officer's Credibility.

The judge gave two reasons for declining to issue a missing witness charge. First, she said, she "believe[d] that the witness would be equally available to both sides," and second, she was "not confident that this man could have shed any particular light on this case" (Tr. 5/13 270-271). She was mistaken on both points.

A correct "missing witness" instruction would contain language such as the following:

If a witness who could have given material testimony on an issue in this case was peculiarly in 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 the witness's testimony would have been unfavorable to the party which failed to call him. However, you should not draw such an inference [as to] a witness who was equally available to both parties or whose testimony would have been merely cumulative or immaterial.

D.C. Bar Association, Criminal Jury Instructions ("Redbook"), Instruction 2.41 (1993 ed.).

A missing witness charge was called for in this case because Weeks, in the pattern instruction's words, was "peculiarly in the power of one party to produce, was not called by that party, and his absence had not been sufficiently accounted for or explained." See Graves v. United States, 150 U.S. 118, 121 (1893). In Pennewell v. United States, 353 F.2d 870, 871 (D.C. Cir. 1965), where the prosecutor was found to have commented improperly on the defendant's failure to call a certain witness, this Court wrote,

This court has previously drawn the corollary [to the Graves formulation] that no presumption arises from failure of a defendant to call a witness if the witness "is equally available to the Government and is in a legal sense a stranger to the accused." [citing Milton v. United States, 110 F.2d 556, 559 (1940) and cases cited therein]

Obviously, it follows that where a witness is a legal "stranger" to the defendant and is, in fact, a Government law officer who participated in the observation of the defendant's alleged crime and his arrest, an "unfavorable inference" may be drawn from the Government's failure to call him, even if he may have been technically "available" for a subpoena by the defendant.

Case law amply supports this conclusion. In United States v. Saa, 859 F.2d 1067, 1076 (2d Cir. 1988), the court found that an informant, who had a "special relationship" with and was "favorably disposed" toward the Government, would have been "an enormous and probably an intolerable risk" for the defense to call, and was therefore not "meaningfully 'available' as a witness for the defense. See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st. Cir.), cert. denied, 454 U.S. 895 (1981)." The Seventh Circuit, too, has recognized that the physical unavailability of witness is not an unvarying prerequisite for the missing witness inference: "Alternatively, the party seeking the instruction can demonstrate that because of the witness' relationship with the other party, his or her testimony is, in pragmatic terms, only available to the other side. [citations omitted]" United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988). In United States v. Mahone, 537 F.2d 922, 926 (7th Cir. 1976), the court agreed with the defendant's contention that one of the four police officers who arrested him, who did not testify, was "not in fact available to him because of the officer's special relationship with the prosecution"--he "had an interest in seeing his police work vindicated by a conviction of the defendant." And see, e.g., Burgess v. United States, 440 F.2d 226, 232 (D.C. Cir. 1970) (informer peculiarly within Government's control); United States v. Jackson, 257 F.2d 41, 43-44 (3d Cir. 1958) (Government informant not equally available to defendant).

The judge's second reason for refusing to give a missing witness charge simply ignored the evidence. True, there was no evidence that Weeks had used binoculars, as Berling had, during the alleged transaction by Mr. xxxxx, but the two officers in the observation post had been only 30 feet away from the point where the transaction began (Tr. 5/12 55, 76). Weeks presumably could have seen at least as much from that distance as Berling did--perhaps more, because of the limited field of vision of binoculars. Of course, if Weeks had testified, he might simply have corroborated Berling's account. However, such a likelihood is actually the logical source of the adverse inference arising from a missing witness. Because the reliability of Berling's observations was attacked, most notably by the testimony of defense witness Washington, whom Berling claimed not to have seen, it would have been appropriate for the Government to put Weeks on the stand as a rebuttal witness. Indeed, he would have been a particularly important witness for the Government if it had not been able to introduce and exploit the evidence of other crimes. Given the Government's reliance on what Berling claimed he saw from the observation post, which the defense vigorously contested, Weeks' absence did have evidentiary significance, and the missing witness charge should have been given and defense counsel allowed to comment on Weeks' absence.

In United States v. Hoffman, supra, 964 F.2d at 24, this Court observed,

It is true . . . that defense attorneys must be permitted to argue all reasonable inferences from the facts in the record. See United States v. DeLoach, 504 F.2d 185, 190 (D.C. Cir. 1974). This includes the "negative inferences" that may arise when a party fails to call an important witness at trial, or fails to produce relevant documents or other evidence, and it is shown that the party has some special ability to produce such witness or other evidence. [citations omitted]

964 F.2d at 24. The pattern instruction requires the jury to decide that the witness' absence "has not been sufficiently accounted for or explained" before drawing the unfavorable inference. To hold that the jury should not have heard the argument or the instruction here would be to hold, in effect, that the Government's failure to call Weeks was adequately explained, which simply is not so. The unfairness of the judge's refusal to give a missing witness charge and her related restriction of defense counsel's closing argument was heightened by the prosecutor's comments on the defense's purported failure to present evidence, discussed in Point III, infra. Clearly, the judge abused her discretion in these respects.

POINT III

THE PROSECUTOR VIOLATED MR. xxxxx'S RIGHT NOT TO TESTIFY AND TO RELY ON THE PRESUMPTION OF INNOCENCE BY COMMENTING IN CLOSING ARGUMENT ON THE DEFENSE'S FAILURE TO "DISPUTE," OR PRESENT "TESTIMONY" TO CONTRADICT, THE EVIDENCE OF POSSESSION.



The Standard of Review



As defense counsel failed to object to the statements by the prosecutor discussed herein, they are reviewed under the constitutional plain error standard. Fed. R. Crim. P. 52(b) states, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Reversal should be ordered if an error is "plain in the sense of being obvious," and if it "substantially undermined the fairness of the trial." See United States v. Simpson, 992 F.2d 1224, 1229 (D.C. Cir. 1993) (citing United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1985)).

The Jury Could Only Have Understood the Prosecutor's Comments to Refer to the Defendant's Failure to Testify and to Disprove the Government's Case.

The Fifth Amendment prohibits adverse comment on a criminal defendant's decision not to testify. Griffin v. California, 380 U.S. 609 (1965).

The prosecutor need not directly comment on the defendant's silence to violate this rule, so long as the language used, in context, is such that "the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Williams, 521 F.2d 950, 953 (D.C. Cir. 1975).

United States v. Harris, 627 F.2d 474, 476 (D.C. Cir. 1980). Moreover, the prosecutor may not suggest to the jury "that the defendant has any burden of proof or any obligation to adduce any evidence whatever. [citations omitted]" United States v. Parker, 903 F.2d 91, 98 (2d Cir. 1990).

Prosecutorial statements that Government evidence is "uncontradicted" have long been recognized to create serious danger of unconstitutional inferences by juries. See e.g., United States v. Lee, 935 F.2d 952, 957 (8th Cir. 1991); Lent v. Wells, 861 F.2d 972, 974-977 (6th Cir. 1988); United States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985). Here, the prosecutor repeatedly told the jury that the evidence of possession was "undisputed," and he also called it "unrefuted" and said, "There is no challenge to the fact that he had drugs on his person. No testimony to the contrary." (Tr. 5/13 286-287, 307, 310).

Mr. Washington's testimony did not excuse these comments. A defendant does not give up his right to hold the Government to its burden of proof by presenting a witness and by questioning a Government witness' credibility. Furthermore, to the extent that

defense counsel challenged the credibility of Berling and Solloso, he was disputing the evidence of possession, and he was entitled to do so without presenting the defendant, who was the only witness practically available (Weeks being a legal "stranger") who might have contradicted Berling and Solloso. Therefore, in addition to trampling on the defendant's Fifth Amendment rights not to testify and to rely on the presumption of innocence, the prosecutor was deliberately distorting the defense's position.

These tactics were particularly unfair and prejudicial because, as discussed in Point II, supra, defense counsel had been barred from arguing an adverse inference based on the Government's failure to put Weeks on the witness stand, and the jury was not to be given a missing witness charge. Of course, the prosecutor knew that defense counsel was in that position of relative disadvantage.

The standard jury instructions on the presumption of innocence and the defendant's right not to testify (Tr. 5/13 315, 319) did not suffice to cure the prejudice. Contrast United States v. Lee, supra, 935 F.2d at 958 n.6, where the trial court specifically referred to the prosecutor's comments and reminded the jury of the defendant's rights and the Government's burden. Reversal of the conviction and a new trial are required.



CONCLUSION

For the reasons set forth above, Mr. xxxxx's conviction

should be reversed and the case remanded for a new trial.

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

(212) 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 on March 4, 1994, two copies of the foregoing brief for appellant and one copy of the accompanying appendix were served by United States Mail, first-class postage paid, upon the United States Attorney's Office, Att'n: John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.







_________________________________

Allen E. Burns



1. The volumes of the District Court transcripts whose pages are cited herein will be designated by "Tr." and their respective dates, all in 1993, followed by the page numbers. "A." designates pages in the Appendix filed herewith.

2. Counsel protested that Mr. xxxxx's alleged prior behavior was not the same--that he had been fighting, and there was no evidence that he had been involved in a drug transaction (Tr. 5/12 225). He also argued again that the time was too remote, and that the evidence was more prejudicial than probative (Tr. 5/12 225).

3. In his opening, defense counsel had admonished the jury to find Mr. xxxxx not guilty unless the Government proved, to their satisfaction, that the "drug that was supposedly taken from my client" was "the same thing my client supposedly had" (Tr. 5/11 40).

4. Berling did not recall seeing anyone in a wheelchair with Mr. xxxxx (Tr. 5/12 81). As discussed infra, defense witness Clarence Washington, who was confined to a wheelchair, testified that he was with Mr. xxxxx for about ten minutes immediately before the arrest.

5. Berling and Weeks were in the observation post, with a tree between Berling and Mr. xxxxx, for about 15 to 20 minutes (Tr. 5/12 68, 80). Weeks was there to observe, also, though he had no binoculars, and Berling did not let him use his binoculars during the "transaction" (Tr. 5/12 74). But they were only about 30 feet from Mr. xxxxx when the man approached him (Tr. 5/12 55, 76).

6. At the hearing on Mr. xxxxx's suppression motions, Berling had testified that Weeks was with him in the observation post (Tr. 4/30 18, 24).

7. During trial, the prosecutor developed the additional theory that Mr. xxxxx's use of a single plastic bag, rather than small ziplock bags, was part of his modus operandi (Tr. 5/12 213-214)