UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-3092

BRIEF FOR APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxx xxxxxxxxxxx, Defendant-Appellant.

JURISDICTION

ISSUES PRESENTED FOR REVIEW

I. Whether the district court erred when it denied Mr. xxxxxx motion for judgment of acquittal on his failure-to-appear charge, where the evidence at trial did not establish beyond a reasonable doubt that Mr. xxxxxxx knew he was to appear for trial on September 12 and purposely failed to do so.

II. Whether the district court improperly removed from the jury elements of the failure-to-appear charge by instructing the jury that the court had decided as a matter of law four elements of that charge.

III. Whether the district court abused its discretion by permitting the government's drug expert to testify about the quantity, purity, packaging and value of the drugs, where the testimony was prejudicial to Mr. xxxxxxx, where intent to distribute was not in dispute, and where Mr. xxxxxxx had otherwise agreed to stipulate that the quantity, purity and packaging of the drugs showed intent to distribute by the possessor.

STATUTES AND REGULATIONS

Pertinent statutes and rules are contained in the addendum to this brief.

in the Court Below

On March 22, 1994, a grand jury returned a one-count indictment against Appellant Henry A. xxxxxxx. The indictment charged Mr. xxxxxxx with possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841. (App. 14).¹ Prior to trial, Mr. xxxxxxx filed a motion in limine to exclude the testimony of the government's drug expert on the grounds of relevance and prejudice. Mr. xxxxxxx had agreed to stipulate that the quantity, purity and packaging of the drugs demonstrated intent to distribute. (App. 15-21).

Trial commenced on June 30, 1994. During trial the district court allowed the government to put on its drug expert to testify. (7/1/94 Trial Tr. 3-20). After a two-day trial, the jury returned a note stating that they were unable to reach a verdict. (App. 22). The district court declared a mistrial. (7/6/94 Trial Tr. 6-7). Mr. xxxxxxx was released to a halfway house while awaiting retrial. (App. 23).

The court scheduled a retrial for September 12, 1994. Mr. xxxxxxx did not appear in court for trial, and the district court issued a warrant for his arrest. (App. 24). Mr. xxxxxxx was arrested on the warrant May 31, 1996, and brought before the court. A two-count superseding indictment was filed on August 8, 1996, again charging Mr. xxxxxxx with unlawful possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841 (Count One), and, in addition, failure to appear while on pretrial release in violation of 18 U.S.C. § 3146 (Count Two). (App. 27).

A new trial was conducted March 21-26, 1997, during which the government's drug expert again testified. (3/24/97 Tr. 2-42). Defense counsel renewed his objections (from the first trial) to the expert's testimony based on relevance and prejudice. (3/21/97 Tr. 8-9; 3/24/97 Tr. 9-10; 3/25/97 Tr. 4-5). At the close of the government's evidence, defense counsel moved for a judgment of acquittal on the failure-to-appear count. (3/24/97 Tr. 43). The district court denied the motion. (Id. at 48). The motion was renewed at the close of all the evidence. (Id. at 201). Again, the court denied the motion. (Id.). The jury returned a verdict of guilty on both counts. (App. 25).

The district court sentenced Mr. xxxxxxx to 80 months on Count One (drug possession) and 8 months on Count Two (failure to appear), the sentences to run concurrently, and three years' supervised release. (App. 33-35).

B. Statement of Facts

On March 1, 1994, a little after midnight, Mr. xxxxxxx was driving his car on Alabama Avenue in Southeast Washington, D.C. He was pulled over by a United States Park Police Officer for failure to display a Virginia inspection sticker and for improperly securing his rear license tag (it was hanging by one bolt). (3/21/96 Tr. 23-24). The police officer asked for his license and registration. When Mr. xxxxxxx handed him the registration, the officer then went to the front windshield of the car to compare the vehicle identification number located on the dashboard with that on the registration. (Id. at 28).

According to the park police officer, after he approached the car he saw a small package, about the size of a softball, wrapped in green duct tape, on the floor underneath Mr. xxxxxxx's feet. (Id. at 27-29, 74). Suspecting that it might be drugs, he returned to his car and radioed for backup, requesting a canine unit. The officer then removed Mr. xxxxxxx from his car. He saw the package underneath the front seat and left it there while waiting for the canine backup. When the canine unit arrived, the dog alerted to the object under the front seat. The officers removed the object, arrested Mr. xxxxxxx and returned to the station. (Id. at 29-32, 118-19). Inside the package the officers found four bags of white powder that tested positive for heroin. (Id. at 34, 37; App. 30).

After Mr. xxxxxxx's first trial ended in a mistrial, he was released to a halfway house pending retrial. Mr. xxxxxxx did not appear for his retrial on September 12, 1994.

Mr. xxxxxxx later testified that he did not know that his trial had been scheduled for September 12. (3/24/97 Tr. 140). During this time, Mr. xxxxxxx was preoccupied with other, serious concerns. He was being harassed and threatened by other residents at the halfway house who suspected he was a snitch. His family was having severe financial problems due to the fact that he had been out of work since his arrest six months before and his mounting legal bills. He also received upsetting news from his home in Nigeria that his cousin was killed. Then on September 10, two days before trial, one of the halfway-house residents, a man named "Jay", saw Mr. xxxxxxx at a local Amoco gas station, put a gun to his head and warned him to stop cooperating with the government. Mr. xxxxxxx was left terrified and confused. He called his cousin to get him and never returned to the halfway house. (3/24/97 Tr. 140-41, 163-65; App. 31-32).

On the failure to appear count, the government merely read from the court's docket sheet, which was admitted into evidence:

MR. READ: Just so the jury will know. "The court records for the criminal docket for case no. 94-107, regarding United States versus Henry xxxxxxx . . ."

THE COURT: That's this case.

MR. READ: " . . . on July 7, 1994, there was an oral motion for release of the defendant to a halfway house. That motion was granted. On September 12, 1994, the defendant failed to appear for trial. A bench warrant was ordered and issued for Henry A. xxxxxxx. On June 3rd, 1996, a warrant was returned, executed, as to Henry A. xxxxxxx and he was arrested on that same day, June 3rd, 1996."

That's all, your Honor.

(3/21/97 Tr. 137).

Defense counsel moved for a motion of acquittal on the failure to appear count, arguing that the government had not established that Mr. xxxxxxx was even aware of the court date for which he failed to appear. The government had not submitted any record evidence or transcript to show that Mr. xxxxxxx had been told of the upcoming September 12 trial date. (3/24/97 Tr. 43, 46-47). Nevertheless, the court took judicial notice of the fact that Mr. xxxxxxx was present at a status hearing on September 7 at which the court advised him of the September 12 trial date, and denied the motion. (3/24/97 Tr. 45, 47-48).

In his defense, Mr. xxxxxxx testified that before his arrest he had loaned his car to a friend, George Lucas. That evening, he picked up his car at an apartment complex on Annapolis Road where Mr. Lucas was staying. Then he, Mr. Lucas and Mr. Lucas's girlfriend drove to the girlfriend's apartment to drop her off. Mr. xxxxxxx waited in his car for 20 minutes or longer for Mr. Lucas to return from the apartment. When Mr. Lucas did not show, Mr. xxxxxxx left. He was pulled over a short time later on Alabama Avenue and arrested. Mr. xxxxxxx knew nothing about the package of heroin found under the front seat. (3/24/97 Tr. 117-126, 129-171).

Mr. xxxxxxx also called two character witnesses on his behalf. (3/21/97 Tr. 142-149; 3/24/97 Tr. 60-72). He called another witness, Shola Fatusin, who confirmed that on the evening of Mr. xxxxxxx's arrest, he drove Mr. xxxxxxx to an apartment complex on Annapolis Road to pick up his car. (3/24/97 Tr. 89-92). A fourth witness, Mr. xxxxxxx's girlfriend, Dorothy Hannon, testified that before his arrest she loaned him $315 (the police seized $300 in cash from Mr. xxxxxxx at the time of his arrest) and that he did not have his car when he visited her the night before his arrest. (Id. at 97, 102-03).

Defense counsel renewed his motion for acquittal on the failure-to-appear count at the conclusion of all the evidence and was again denied by the district court. (3/24/97 Tr. 201). Over defense counsel's further objections (3/24/97 Tr. 45, 59), the district court instructed the jury that, as a matter of law, three elements of the failure to appear charge had been satisfied, taking them away from the jury:

Defendant xxxxxxx is accused in count two of the indictment with failing to appear in court on a date he was required to be present. It is against federal law to appear -- to fail to appear in court on a required date. For you to find Mr. xxxxxxx guilty of this crime, you must be convinced that the government has proved each of these things beyond a reasonable doubt:

First, the defendant xxxxxxx was previously charged with possession with the intent to distribute a mixture and substance containing heroin.

Second, that Judge Pratt of this court -- who had the case before he died about a year ago -- second that Judge Pratt of this court issued an order permitting defendant xxxxxxx to be released to a halfway house pending his retrial on this charge,

Third, that defendant xxxxxxx was required to appear before Judge Pratt for retrial in this court on September 12, 1994, and

Fourth, that Mr. xxxxxxx knew that he was required to appear before Judge Pratt on that date and purposely failed to do so.

You are instructed as a matter of law that the first three things have been proven beyond a reasonable doubt. In fact, I am making those -- considering to be questions of law, rather than ones for you to resolve; that is, that he was charged as he now is in count one of this indictment; Judge Pratt did issue an order releasing him to a halfway house pending a retrial; and he was present in court before Judge Pratt at the September 7, 1994, status call at which the September 12, 1994, trial date was set. What you must determine is whether the government has proven beyond a reasonable doubt that Mr. xxxxxxx knew that he was required to appear before Judge Pratt on September 12, 1994, for the retrial and purposely failed to do so.

(3/25/97 Tr. 75-76). The jury convicted Mr. xxxxxxx of both the failure-to-appear and the drug counts.

SUMMARY OF ARGUMENT

The evidence in this case is not sufficient to support Mr. xxxxxxx's conviction, beyond a reasonable doubt, for failure to appear. The district court erred in not granting defendant's motion for judgment of acquittal on this charge. The government's evidence was nothing more than the district court's docket sheet showing that Mr. xxxxxxx had been released to a halfway house, a status hearing was held on September 7, 1994, at which a trial date was set, and that Mr. xxxxxxx failed to appear for trial. Other readily available evidence, such as a transcript of the September 7 status hearing, was not introduced. The defendant's testimony added little to the government's case. He admitted being present at a status hearing, but did not recall when and did not recall being told about a specific trial date. His conduct subsequent to the trial date shed little light on his knowledge and intent on that day when he failed to appear for trial.

The district court further erred on this issue when it instructed the jury that, as a matter of law, it had decided several elements of the failure-to-appear charge in favor of the government. In a criminal trial, a defendant has a constitutional right to have the jury decide every element of his charge. Mr. xxxxxxx's conviction for failure to appear was rendered unconstitutional by the court's instructions and should be reversed.

Mr. xxxxxxx's drug conviction should also be reversed because of the prejudicial testimony of the government's narcotics expert. The district court allowed the government, over Mr. xxxxxxx's objection, to put on a narcotics expert to testify that the quantity, purity and packaging of the heroin was consistent with intent to distribute. He further testified as to the value -- up to $250,000 -- of the drugs. Mr. xxxxxxx had agreed to stipulate to the intent element, which was not in dispute in this case, obviating the need for the expert's testimony. The testimony proved to be far more prejudicial than probative, requiring reversal of the drug conviction.

A. Standard of Review

On appeal of a denial of a motion for acquittal, appellate courts use the same standard employed by the trial court. That is, appellate courts review the evidence de novo to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993). In making this determination, the Court must reach its "own independent judgment regarding the sufficiency of the evidence." United States v. Johnson, 952 F.2d 1407, 1409 (D.C. Cir. 1992) (quoting United States v. Singleton, 702 F.2d 1182, 1183 (D.C. Cir. 1983) (en banc)).

Where a defendant moves for acquittal after the close of the government's evidence and then, after denial, puts on his own defense, the defendant has waived his earlier motion. If the defendant then renews the motion at the close of all the evidence, and is denied, he can appeal the later denial. The appellate court in that case is to consider all the trial evidence, including evidence introduced by the defendant, in its determination of the sufficiency of the evidence. United States v. Foster, 783 F.2d 1082, 1085 (D.C. Cir. 1986).

Mr. xxxxxxx

In order to convict Mr. xxxxxxx of count two, failure to appear while on pretrial release, the government must prove beyond a reasonable doubt all elements of that charge. Because it did not, the district court should have granted Mr. xxxxxxx's motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29(a).

(1) was released pursuant to the statute,

(2) was required to appear in court,

(3) knew that he was required to appear,

(4) failed to appear as required, and

(5) was willful in his failure to appear.

United States v. Stewart, 104 F.3d 1377, 1385 (D.C. Cir.), cert. denied, 117 S. Ct. 1856 (1997); Weaver v. United States, 37 F.3d 1411, 1412-13 (9th Cir. 1994).

The government has the burden to prove each element of an offense for a conviction. In re: Winship, 397 U.S. 358, 364 (1970). The government meets its burden only when "the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). No "mere modicum" of evidence can, by itself, support a conviction beyond a reasonable doubt. Id. at 320. "[I]f the evidence is insufficient to sustain a conviction[,]" upon motion of the defendant, the court must enter a judgment of acquittal on that charge. Fed. R. Crim. P. 29(a).

This Court has reversed convictions on insufficient evidence where "only speculation supports [the] conviction." Zeigler, 994 F.2d at 850 (finding defendant's frequent presence in apartment insufficient to establish possession of cocaine located inside briefcase stored in laundry room); see United States v. Johnson, 952 F.2d 1407 (D.C. Cir. 1992) (finding defendant's presence in hallway of apartment, not near drugs or gun found in apartment, insufficient to establish possession); United States v. Foster, 783 F.2d 1087 (D.C. Cir. 1986) (finding that government's evidence that defendant worked as a store clerk and stood behind counter near where shotgun was partially hidden insufficient to establish possession).² As in the instant case, the government's evidence proved too little about each defendant's knowledge and ultimately did not reach the required threshold for a finding each element beyond a reasonable doubt.

C. The Evidence is Insufficient to Establish that Mr. xxxxxxx Knew the Date of His Trial and that He Willfully Failed to Appear on that Date

In its case, the government presented no evidence to show either that Mr. xxxxxxx knew the date of his September 12 trial or that he willfully failed to appear on that date. The government read from the district court docket sheet three facts relevant to the failure-to-appeal charge: that Mr. xxxxxxx had a pending case; that he was released to a halfway house on July 7; and that he did not appear for trial on September 12, at which time a warrant was issued for his arrest. The government then requested that the docket sheet be admitted into evidence. The written docket sheet contained one additional piece of relevant information, not stated by the government: that a status hearing was held September 7, 1994, at which the court set a trial for 9:00 a.m. on September 12, 1994. (App. 6). The government did not introduce a transcript of the status hearing, signed documents or the testimony of a court reporter to establish Mr. xxxxxxx's presence. It did not submit any evidence to show that, if Mr. xxxxxxx was present, there had been a discussion in his presence (not at the bench) clearly setting the trial date. Neither did it call Mr. xxxxxxx's defense attorney, Mr. Savage, to testify about his client's knowledge of the September 12 trial date.³ Cf. United States v. Lechuga, 975 F.2d 397, 398-99 (7th Cir. 1992) (government's evidence in failure-to-appear case included release order, appearance bond, minutes of several court proceedings, and tape recording of arraignment where defendant was ordered to appear at trial on July 5).

Nonetheless, over the objection of defense counsel, the district court took judicial notice, without evidence and without concern that the docket entries might contain an error, that Mr. xxxxxxx was in court for the September 7 status hearing and was advised at that hearing of his trial date. (3/24/97 Tr. 45, 47-48).⁴ The trial judge had not been present for the September 7 status hearing as the case had been assigned to a different judge at that time. Furthermore, even the prosecutor, who suggested that the court take judicial notice of these facts, had not been present at the September 7 status hearing and could not himself verify that Mr. xxxxxxx was present and that he was informed of the September 12 trial date.

Mr. xxxxxxx's testimony in the defense case added little to the government's evidence. The government tried to impeach Mr. xxxxxxx with a letter he had written to the court, after his rearrest, that stated in part:

"Your honor, on my retrial status hearing in September 1994, I was nervous, confused, and never paid attention to the subsequent court date. I did not intentionally flee to avoid the trial."

(3/35/97 Tr. 164; App. 32). The letter, however, was written October 23, 1996, more than two years after Mr. xxxxxxx's arrest for failure to appear and after he had been arraigned on that charge and consulted with his attorney. Thus, it does not demonstrate Mr. xxxxxxx's knowledge and intent on September 12, 1994. The government then asked Mr. xxxxxxx a series of questions regarding whether he ever called his attorney or the court to find out his court date. (3/24/97 Tr. 166). Again, Mr. xxxxxxx's negative responses, even viewed in the light most favorable to the government, show little about his knowledge and intent on September 12. Finally, the government questioned Mr. xxxxxxx about his trip to Nigeria to visit family, attempting to show how he concealed his travel by leaving from Mexico and returning through Canada. (3/24/97 Tr. 168-70). However, Mr. xxxxxxx left the country for Nigeria in December 1995, over one year after his retrial date. Again, the evidence shows little about the crime charged -- failure to appear for trial on September 12, 1994 -- and Mr. xxxxxxx's state of mind on that date.⁵

This Court has decided two cases in which the defendant raised an issue of sufficiency of the evidence to show failure to appear. United States v. Stewart, 104 F.3d 1377 (D.C. Cir. 1997); United States v. Lloyd, 868 F.2d 447 (D.C. Cir. 1989). In both cases, the government introduced evidence that the defendants had a written notice of the date, time and place to appear. Stewart, 104 F.3d at 1391 (defendant had release order directing him to appear at pretrial services prior to his arraignment on a specific date and at a particular place and time, which included phone number of pretrial services); Lloyd, 868 F.2d at 452 (defendant had notice of date, time and place of preliminary hearing, signed by defendant). In Stewart, the defendant even appeared at pretrial services in the district court that morning, but then left before his 1:30 arraignment before the magistrate. Stewart and Lloyd are distinguishable on these facts. Here, the government introduced only the district court docket sheet to attempt to show that Mr. xxxxxxx knew of his September 12 hearing. This does not establish actual notice, as in Stewart and Lloyd. See also United States v. Marion, 977 F.2d 1284, 1287 (8th Cir. 1992) (finding evidence sufficient to prove knowing failure to surrender for sentence, where two officers testified about conversations with defendant informing her of violation of agreement to voluntarily surrender and no record existed of phone calls defendant alleged to have made to prison).

The government's failure to produce evidence in this case requires a judgment of acquittal. Accordingly, this Court should grant the motion and remand to the district court with instructions to dismiss with prejudice the charge against Mr. xxxxxxx for failure to appear.

II. THE DISTRICT COURT COMMITTED PER SE REVERSIBLE ERROR WHEN IT REMOVED FROM THE JURY ELEMENTS OF THE FAILURE-TO-APPEAR CHARGE BY INSTRUCTING THE JURY THAT AS A MATTER OF LAW THE ELEMENTS HAD BEEN PROVEN BEYOND A REASONABLE DOUBT

A. Standard of Review

Where the district court removes from the jury elements of a charged offense, it has denied a defendant his constitutional rights to due process and a jury trial. This Court should review the court's instructions de novo and, upon finding such constitutional error, reverse without further analysis. See United States v. Gaudin, 515 U.S. 506, 510, 522-23 (1995); United States v. DeFries, 129 F.3d 1293, 1311-12 & n.13 (D.C. Cir. 1997).

B. The District Court's Jury Instructions Effectively Took from The Jury's Province Elements of the Failure-to-Appear Charge, Denying Mr. xxxxxxx his Constitutional Right to a Jury Trial on this Charge

The district court, over defense counsel's objections, instructed the jury "as a matter of law that the first three things have been proven beyond a reasonable doubt. In fact, I am making those -- considering to be questions of law, rather than ones for you to resolve." (3/24/97 Tr. 76). The court then listed its findings that the jury was to adopt:

(1) that Mr. xxxxxxx had been charged with possession with intent to distribute heroin;

(2) that Judge Pratt had issued an order releasing him to a halfway house; and

(3) that Mr. xxxxxxx was present at the September 7, 1994, status hearing at which time the court set the September 12, 1994, trial date.

These instructions effectively took from the jury the authority to decide three of the five elements of failure to appear (discussed in Part I above): release from custody; requirement to appear before a court, and knowledge of requirement to appear.⁶ The jury was left with the authority to decide only whether Mr. xxxxxxx failed to appear and whether his failure was willful. There can be no dispute that the court decided the first two elements of the offense: that Mr. xxxxxxx was released from custody and that he was required to appear for trial on September 12. On the knowledge element, the district court effectively took that issue from the jury when it instructed the jury that, as a matter of law, Mr. xxxxxxx was present at the status hearing where Judge Pratt set the September 12 trial date.⁷ Although the court told the jury that it was to determine knowledge and intent, the court effectively decided knowledge with its statement. It did not state, as it could have, that if the jury found that Mr. xxxxxxx was present at the status hearing and the September 12 trial date was set by the court in his presence, the jury could infer knowledge from these facts. Rather, the court completely removed the knowledge issue from the jury's consideration by deciding the two factual predicates, effectively deciding the knowledge element.

This Court recently reversed a similar case where the district court took an element of RICO charges away from the jury. See United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997). In DeFries, defendants were two union officials charged with RICO violations and RICO conspiracy, embezzlement and mail fraud. After trial, the district court instructed the jury that, as an element of the RICO charges, the government must prove the existence of an "enterprise." It then told the jury that "for purposes of this element of counts one and two, you should regard the two unions as a single enterprise." Id. at 1310. Although the district court had further instructed the jury that it was to consider and decide all elements of the RICO offense, this Court found that the district court's instructions had effectively taken away from the jury the decision on the "enterprise" element. The Court readily concluded that "if jury instructions remove an element of a crime from the jury's consideration, then those instructions are flawed as a matter of law." Id. at 1311.

Two recent Supreme Court cases dictated the results in DeFries and control the decision in this case as well. See United States v. Gaudin, 515 U.S. 506 (1995) (holding that "materiality" element of false statements charge is a matter for jury, not the court); Sullivan v. Louisiana, 508 U.S. 275 (1993) (holding that constitutionally deficient reasonable doubt instruction denied defendant right to have jury properly decide elements of his charges and was per se reversible error). The Court reasoned that the Fifth Amendment due process guarantee and the Sixth Amendment jury trial guarantee "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Gaudin, 515 U.S. at 510 (citing Sullivan, 508 U.S. at 277-78). The simple logic of the Court's Gaudin decision is set out in its opinion:

The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.

Gaudin, 515 U.S. at 511.

If the Court does not reverse the district court's denial of Mr. xxxxxxx's motion for judgment of acquittal, it should reverse his failure-to-appear conviction on constitutional grounds. In this case, the district court violated Mr. xxxxxxx's Fifth and Sixth Amendment rights as set out in Gaudin and Sullivan when it took elements of the failure-to-appear charge from the jury. Furthermore, the district court's determination that Mr. xxxxxxx was informed of his

September 12 trial date is not free of reasonable doubt. As dictated by DeFries, this Court should reverse Mr. xxxxxxx's conviction on this count.

III. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE GOVERNMENT TO INTRODUCE EXPERT TESTIMONY ON INTENT TO DISTRIBUTE, WHERE SUCH ISSUE WAS NOT IN DISPUTE AND MR. xxxxxxx HAD OFFERED TO STIPULATE TO THE QUANTITY AND QUALITY OF THE DRUGS AND THAT SUCH WAS CONSISTENT WITH AN INTENT TO DISTRIBUTE

A. Standard of Review

Appellate courts review for abuse of discretion district court rulings to permit or exclude evidence under Fed. R. Evid. 403. United States v. Pless, 79 F.3d 1217, 1220 (D.C. Cir.), cert. denied, 117 S. Ct. 251 (1996); see Old Chief v. United States, 117 S. Ct. 644, 655 (1997).

B. The Testimony of the Government's Expert Was Substantially More Prejudicial Than Probative

Mr. xxxxxxx opposed, pursuant to Fed. R. Evid. 403, the government's use of a narcotics officer to testify to the quantity, purity and packaging of the heroin in order to show intent to distribute. Mr. xxxxxxx was willing to stipulate to the quantity, purity and packaging of the drugs and to the admission of the DEA-7 form containing this information (which he did (3/21/97 Tr. 80, 135)) and to stipulate that the quantity, purity and packaging showed an intent to distribute. (App. 20-21). Instead of accepting the "intent" stipulation, the trial court permitted the expert's testimony on the grounds that "very few of our jurors, if any, have knowledge of these things and I think it is all a part of helping them understand the facts in the DEA-7 . . . ." (3/24/97 Tr. 10).

Federal Rule of Evidence 401 defines "relevant evidence" as that having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence, however, should be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. Evidence is unfairly prejudicial where it has "an undue tendency to suggest decision on an improper basis, commonly though not necessarily, an emotional one." Advisory Committee's Notes on Fed. R. Evid. 403. In balancing the prejudicial effect versus probative value of the evidence, the trial judge should consider alternative forms of evidence available and "reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof . . . ." Old Chief, 117 S. Ct. at 651; see Advisory Committee's Notes on Fed. R. Evid. 403.

Applying the balancing test to this case shows that the prejudicial effect of the expert's testimony substantially outweighed the probative value of the evidence. Beginning with the probative value, while the expert's testimony is relevant, its probative value is limited. The issue of intent to distribute was not in dispute here. Mr. xxxxxxx did not contest that the actual possessor of the drugs intended to distribute them. He only contested who possessed the drugs. Cf. United States v. Crowder, slip op. at 11 (D.C. Cir. May 1, 1998) (holding that probative value outweighed prejudicial effect of 404(b) evidence going to intent and knowledge where "the elements of intent and knowledge are at the core of the offenses charged in the cases before us"). Defense counsel also offered to stipulate to the uncontested "intent to distribute" element of the drug offense, giving the government a reliable, alternative source of proof. See Old Chief, 117 S. Ct. at 651-52; Crowder, slip op. at 16. In addition, the government's interest in presenting a complete story in order to satisfy the juror's expectations was not furthered here by use of the narcotics expert. See Old Chief, 117 S. Ct. at 654; cf. Crowder, slip op. at 11 (finding that excluding evidence of prior drug deals where defendants contested knowledge and intent to distribute would leave a "gap" in the government's prosecution story). Any reasonable juror, told through stipulation that the quantity, purity and packaging of the heroin suggests an intent to distribute, would consider that a logical inference not requiring further explanation. Finally, the expert's testimony is not relevant to any other issue in this case. Its sole use was to show intent to distribute, which is not an issue in dispute.

On the other hand, the danger of undue prejudice is substantial. The primary concern with expert testimony as recognized by this Court is that "there is often an inherent danger with expert testimony unduly biasing the jury '[b]ecause of its aura of special reliability and trust[worthiness].'" United States v. Doe, 903 F.2d 16, 20 (D.C. Cir. 1990) (citations omitted). Particular to this case, the expert's extensive testimony about the high purity level of the heroin -- 76 to 79 percent compared to typical street purity of 20 percent -- and the dollar values of the quantities -- $60,000 wholesale and $200,000 to $250,000 retail -- would have inflamed the jurors' negative emotions regarding the prevalence and dangers of drugs. These facts also suggest that the possessor was a "big-time" heroin dealer, which would further prejudice the jurors against any person they believed to be involved with the drugs. In addition, the expert testified that a drug dealer who is able to purchase heroin from overseas can buy it for much less and "reap all these price increases[,] [h]imself, and sell it to a retailer in Washington who is going to sell it to the user." (3/24/97 Tr. 14). This statement certainly would play to the jurors' biases, as they had been told that Mr. xxxxxxx was from Nigeria, suggesting that he easily could have bought from a foreign source. See Doe, 903 F.2d at 21-23 (finding expert's remarks about Jamaicans taking over drug trade in Washington, D.C. unduly prejudicial to Jamaican defendants).

The unfair prejudice of the expert's testimony far outweighed the limited (and unnecessary) value of educating the jurors in this case. For this reason, Mr. xxxxxxx's conviction for possession with intent to distribute heroin should be reversed and remanded for a new trial, excluding the testimony of the narcotics expert.

CONCLUSION

For the foregoing reasons, Appellant Henry A. xxxxxxx respectfully requests that this Court reverse his convictions and remand to the district court for retrial only of the drug charge or, in the alternative, remand for a retrial on both counts.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500