Cr. No. xx-196 (WBB)

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant Lee F. xxxxxxx hereby states as follows:

A. Parties and Amici: The only parties below and on appeal are defendant-appellant Lee F. xxxxxxx and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review: In this appeal, appellant seeks review of (1) the decision of the district court (the Honorable William B. Bryant) denying defendant the right to introduce evidence to mitigate the prejudicial effect of prior convictions admitted pursuant to Federal Rule of Evidence 609 (10/3/90 p.m. Tr. 19); (2) the district court's failure to instruct the jury that it must return a unanimous verdict (10/4/90 Tr. 63-81); and (3) the district court's decision denying defendant's motion for a mistrial on the ground that the verdict was not unanimous (10/16/90 Tr. 6).

C. Related Cases: There are no related cases. This case has not been before this Court previously. A pending motion filed by defendant pursuant to 28 U.S.C. § 2255 before the district court (the Honorable William B. Bryant) involves the same parties and the same conviction but raises different issues than those raised in this appeal.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in denying defendant the right to introduce evidence that defendant's three prior convictions had been obtained through guilty pleas, after defendant introduced the fact and nature of those convictions on direct examination to minimize the impact of impeachment pursuant to Federal Rule of Evidence 609.

2. Whether the district court plainly erred in failing to instruct the jury that it must return a unanimous verdict.

3. Whether the district court erred in denying defendant's motion for a mistrial after the jury was not individually polled, and a juror sent the judge a note dated the same day as the verdict stating that her verdict was not guilty.

STATUTES AND RULES

Pursuant to D.C. Cir. Rule 28(a), pertinent statutes and rules are included in the addendum to this brief.

STATEMENT OF THE CASE

On May 1, 1990, a federal grand jury returned an indictment charging defendant with one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii). (App. 14).¹ After a hearing on July 17, 1990, the Court denied defendant's motion to suppress evidence. A jury trial commenced on October 2, 1990. On October 5, 1990, the foreperson of the jury reported that the jury found the defendant guilty. (10/5/90 Tr. 4). The deputy clerk asked the jury collectively if that was the verdict of each and every one of them and, according to the transcript, the jurors responded in unison that it was. (Id.). The jury was not individually polled. (Id.).

On October 9, 1990, a note dated October 5, 1990 was found under the door of the chambers of the Honorable William B. Bryant from a juror stating, inter alia: "I observed Mr. L. [xxxxxxx] not [guilty]." (App. 31). Defendant moved for a mistrial on the basis that the jury's verdict was not unanimous. (10/16/90 Tr. 2-3). The district court denied that motion with respect to whether the verdict was unanimous. (Id. at 6).

On October 5, 1990, the prosecutor had received a telephone call from the foreperson of the jury, who reported that the same juror who left the note described above had acted strangely during trial and deliberations. (10/16/90 Tr. 2; 1/10/91 Tr. 11-13). At the hearing on defendant's motion for mistrial, the court expressed concern about the juror's competency and requested briefing on that subject. (10/16/90 Tr. 7-14). Defendant accordingly moved for a new trial or for a hearing to determine the competency of the juror. (App. 33-37). On January 10, 1991, the district court denied that motion and sentenced defendant to ten years' imprisonment, five years' supervised release and a $50.00 special assessment. (1/10/91 Tr. 16, 18).

The district court did not advise defendant at the sentencing hearing of his right to appeal, as required by Fed. R. Crim. P. 32, and defendant's trial counsel did not file a notice of appeal. On August 12, 1996, pursuant to 28 U.S.C. § 2255, defendant filed a pro se motion alleging ineffective assistance of counsel based on counsel's failure to preserve the right to appeal. The district court appointed counsel and on May 6, 1997, represented by undersigned counsel, defendant filed a second amended § 2255 motion.² With the government's consent, the district court resentenced defendant in order to create a renewed right to appeal, providing a remedy for the Rule 32 violation. See, e.g., Rodriguez v. United States, 395 U.S. 327 (1969); United States v. Sanchez, 88 F.3d 1243, 1246-47 (D.C. Cir. 1996). On July 24, 1997, the district court resentenced defendant to ten years' imprisonment, four years' supervised release and a $50.00 special assessment.³ (App. 52-53). On July 28, 1997, defendant filed a timely notice of appeal. (App. 54).

Statement of Facts

Testimony

Government Testimony

Metropolitan Police Department Officer John Diehl testified that on April 2, 1990, at approximately 8:15 p.m., he walked into the hallway of 255 V Street, N.W., where he found defendant and another man later identified as Gregory Baker. (10/2/90 Tr. 85, 87). Officer Diehl also saw a woman in the doorway of the building when he first approached it but she walked away, and he did not see any other persons present. (Id. at 91).

The entryway of 255 V Street, N.W., has a landing and on the right is a set of approximately seven or eight stairs going to the first floor landing. (Id.). Officer Diehl testified that he found defendant and Baker on the first floor landing. (Id. at 87). According to Officer Diehl, defendant was holding a safety pin with three ziplock bags containing a white rock substance in his right hand, and Baker was facing the defendant and holding money. (Id.). Officer Diehl stated that he told defendant and Baker to "grab some of the wall," and that defendant threw the safety pin with the ziplocks on the floor, at the feet of Baker. (Id. at 89). Officer Diehl radioed for backup, and Metropolitan Police Department Officer Michael J. Quander arrived. (Id.). Officer Diehl then searched defendant and found a clear baggie containing 74 ziplock bags containing white rock material in defendant's right rear pocket. (Id. at 90).⁴ He also recovered a beeper, $226.00 in cash and a wallet from defendant. (Id.).⁵(10/2/90 Tr. 89-90). In his § 2255 motion, defendant asserts that trial counsel was ineffective in failing to challenge the officers' testimony with respect to several inconsistencies, including whether the drugs were allegedly found in defendants right or left rear pocket, the timing of Officer Quander's entrance on the scene, and the fact that Officer Diehl had a history of harassing defendant.

Officer Quander testified that when he entered 255 V Street, N.W., he saw defendant and another black male detained against the wall of the hallway on the landing. (10/3/90 a.m. Tr. at 30, 33). Officer Quander did not see anyone else present, either outside or in the general area of the building. (Id. at 30, 40). Officer Quander testified: "As I walked in, Investigator Diehl was in Mr. xxxxxxx' back left pocket and pulled out a sandwich bag full of small--a ziplock bag with a white rock substance in it." (Id. at 31; see also id. at 37-38 (Officer Diehl's hand was already in defendant's pocket when Officer Quander arrived)). Officer Quander also saw Officer Diehl take cash and a beeper from defendant's front pockets. (Id. at 31).

Defense Testimony

Testimony of Defendant

Defendant testified that on April 2, 1990, he was visiting his mother at 253 V Street, N.W., from approximately 10:00 a.m. through 7:30 p.m. (10/3/90 p.m. Tr. 11). When he was ready to leave it was pouring rain, so defendant called a cab to take him home. He left his mother's apartment to wait for the cab. (Id. at 12). The cab wasn't there, and he stepped into 255 V Street, which was closer to the street than 253 V Street. (Id.).

Inside 255 V Street, defendant encountered Mr. Baker, who he knew from the neighborhood. (Id. at 12). Defendant testified that Baker had some money in his hand. (Id. at 13). He stated that after a short conversation with Baker, he heard the cab honk its horn and started to leave the building. (Id. at 12-13). According to defendant, before he could step out of the building, Officer Diehl ran into the building with his gun out and said "stick 'em up." (Id. at 13). Officer Diehl ordered defendant to go up the stairs and then pushed him against the wall. (Id.). Defendant stated that he was never on the first floor landing until Officer Diehl ordered him up the stairs. (Id. at 30).

Defendant further testified that Andre Greenfield had been standing in the doorway when defendant entered 255 V Street, that Greenfield was still present when Officer Diehl came in the building, and that Officer Diehl told Greenfield to leave the building. (Id. at 13, 14, 29).

Defendant testified that Officer Diehl did not find drugs in his pocket or on his person, that he was not carrying any drugs when he entered 255 V Street, and that he had never touched the drugs found by Officer Diehl. (Id. at 15). According to defendant, Officer Diehl found the larger packet of drugs on the floor near the wall on the first floor landing, inside a paper bag. (Id. at 14). Defendant testified that Officer Diehl picked up the paper bag, pulled out the plastic bag, and asked defendant "was this demo." (Id. at 22). Defendant said he didn't know what it was. (Id.). Officer Diehl put pieces from the bag into a tester he took out of his pocket "and it changed colors;" the officer then told defendant he was under arrest. (Id.). Defendant said: "How can I be under arrest? That does not belong to me." (Id. at 23). Defendant stated that Officer Diehl told him "to plead not guilty." (Id.). According to defendant, Officer Quander had not yet arrived. (Id. at 23, 14).

Defendant testified that Officer Diehl took from him $226.00 in cash, a wallet, a watch and a wedding ring. (Id. at 15, 32).⁶ Defendant stated that he was carrying $226.00 in cash because he had just received a letter demanding $200.00 for child support in connection with a court proceeding, and his father had loaned him the $200.00. (Id. at 16).⁷

Andre Greenfield's Testimony

Andre Greenfield testified that on the night of April 2, 1990, he entered the hallway of 255 V Street and was talking with Mr. Baker and defendant. (10/3/90 p.m. Tr. 41-42). He recalled that defendant and Baker were already on the first floor landing, and he himself was on the stairs on the way up to the landing. (Id. at 45, 48). According to Greenfield, Baker had money in his hand and he appeared to be handing it to defendant. (Id. at 42, 48-50, 53). Defendant had nothing in his hand. (Id. at 42).

Greenfield testified that someone outside said "jump-outs," and at about the same time, Officer Diehl came in and said "stick 'em up." (Id. at 42). Officer Diehl then told Greenfield to leave the hallway, but he did not comply. (Id.). Greenfield saw Officer Diehl take the money from Baker. (Id.). According to Greenfield, Officer Diehl also told Baker to leave the hallway before searching defendant. (Id.). Greenfield did not see Officer Diehl take anything from defendant's person. (Id. at 43, 52). Greenfield testified that Officer Quander did not arrive until five or ten minutes after Officer Diehl searched defendant. (Id. at 43).

Arthur Gregory Baker's Testimony

Arthur Gregory Baker testified that he had come out of an apartment on the second floor and that he had money in his hand because he was counting it. (Id. at 62, 56). According to Baker, both he and defendant were on the first floor landing when Officer Diehl arrived. (Id. at 62). He also testified that after Officer Diehl entered and told him and defendant to get up against the wall, he could not see the officer because the officer made him put his head down. (Id. at 57).⁸

Evidence of Defendant's Prior Convictions

Prior to taking the stand, defense counsel informed the district court that Mr. xxxxxxx intended to testify on direct examination regarding his prior convictions. He requested a cautionary instruction to the jury, which the district court agreed to give. (10/3/90 p.m. Tr. 3). Defendant later acknowledged that he had been convicted of three prior drug offenses and that he had served time in jail for those offenses, and the court cautioned the jury not to consider those convictions as evidence of guilt but only as evidence of credibility. (Id. at 16-17).⁹ Thereafter, the government objected to introduction by the defense of the pleas associated with those convictions:

MR. HUBER: Those three convictions, were they after a trial?

MS. GREWE: Objection, Your Honor. May we approach?

(At the bench).

THE COURT: Repeat your question.

MR. HUBER: Were the convictions after trial? The reason I'm asking that question is since credibility is what's put into issue by conviction, my question is going to determine whether or not he pled guilty, in effect, admitted his guilt at the time or if he went to trial denying his guilt. The evidence is going to be that he pled guilty to all three offenses.

MS. GREWE: And that's exactly what I'm objecting to. The courts have repeatedly stated that it is inappropriate to determine whether the individual pled guilty or not. That does not go to the credibility issue. The question is merely the conviction. What would happen by permitting him to bring out whether he pled guilty or not would be to imply to the jury that when he's guilty he pleads guilty and when he's not guilty he goes to trial, and that's a totally inappropriate type of thing for the jury to consider. The courts have considered this question in the past and determined it is totally inappropriate to determine whether there was a conviction by a plea of guilty or by a trial. The only thing that can be brought out is the fact of the conviction, Your Honor.

MR. HUBER: I believe the courts have made that determination with regard to the prosecutor asking that question.

MS. GREWE: I don't believe it makes any difference.

MR. HUBER: I think that the defendant is allowed to open that kind of a door and that's the defendant's choice to make. I think the prosecutor would be precluded from making that sort of argument on its face, but the question of the defendant's credibility is called into question by the convictions and I believe the defendant should have a right to open the door to question as to what the source of those convictions were.

THE COURT: It seems to me if she can't ask the question it doesn't seem to me that you could. I don't think so.

MR. HUBER: I think case law is against . . .

THE COURT: I haven't been faced with this type of proposition for a while. You say the cases say you can't do it?

MS. GREWE: That's correct, Your Honor.

MR. HUBER: I think she's right on the case law, but I think it can be distinguished on the basis of the defense opening the door.

THE COURT: I don't remember the cases, but I can't imagine that the prosecutor would ask him that. If the question has been raised prior to now, it must have been raised in the same context as you put it, because I can't imagine the prosecutor asking that question. To be frank with you, I don't recall the treatment of the case, but if the ruling is that it's not to be done, I can't understand why the issue would arise after the prosecutor asked the question. I don't understand that.

I will look at the -- I just don't know right now, but if the case says you can't do it, I don't think it makes any difference. I frankly can't conceive that it should come into play, because certainly that's not the type of question a prosecutor would ask a witness.

(Id. at 17-19).

The Jury Instructions

In its jury instructions, the district court omitted the standard instruction on unanimity.¹⁰ The district court mentioned unanimity twice in the course of other instructions:

[Following the instruction on the specific charge] Now in determining your verdict on the charge of possession with intent to distribute, you must all agree about which package or packages of suspected cocaine your verdict relates to. In order to insure that your verdict is unanimous on this point, you will be furnished a verdict form which shall be self-explanatory.

[Following the instruction on selecting a foreperson and information regarding lunch] You do not discuss this case. At the end of the luncheon period, the alternates will go to the juror's lounge and the rest of you will come to the jury room and choose from among yourselves a foreperson and then undertake your task. As I have indicated to you, the verdict must be a unanimous one.

(10/4/90 a.m. Tr. 76-77, 80). However, contrary to the district court's final statement, the court had not indicated at any previous time that the jury's entire verdict must be unanimous.

These indirect comments were the court's only references to unanimity. The court never told the jurors that the verdict must represent the considered judgment of each of them and that each and every juror must agree to the verdict, nor did it explain the meaning of unanimity. Defendant did not object to the court's failure to instruct the jury on unanimity.

The Jury's Verdict and Posttrial Proceedings

The jury began deliberations on October 4, 1990, at approximately 12:40 p.m. At 1:55 p.m., the jury sent a note stating: "We would like to see all the evidence submitted as exhibits." (App. 24). At 4:10 p.m., the jury sent another note, which stated: "We would like to see the transcript which contains Officer Quander's testimony and Officer Diehl's testimony." (App. 25; 10/4/90 p.m. Tr. 2). The Court informed the jury that the transcripts were not available and that the jurors must rely on their own recollection of the testimony. (App. 25; 10/4/90 p.m. Tr. 2). The next day, at 11:25 a.m., the jury sent another note, stating: "We would like to have read to us the testimony of Diehl where he talked about coming into the building, seeing the men, and what he saw and what he did; also, Quander's testimony, saying what he saw when he went in the building." (App. 27; 10/5/90 Tr. 2). In the same note, the jury also requested a rereading of the jury instruction on reasonable doubt. (Id.). At 12:16 p.m., while the Court was waiting for counsel and before it had responded to the 11:25 a.m. note, the jury sent another note stating that it had reached a verdict. (App. 28; 10/5/90 Tr. 2). In court, the foreperson of the jury stated that the jury found the defendant guilty. (10/5/90 Tr. 4). The deputy clerk asked the jurors to rise, and asked whether that was the verdict of each and every member of the jury. The transcript indicates that the jurors responded in unison: "It is, yes." (Id.). The court asked defense counsel if he wished to have the jury polled and he answered: "No, Your Honor." (Id.).

On October 9, 1990, a note was found under the door of Judge Bryant's chambers.¹¹ The note stated as follows:

To Judge Bryant

October 5, 1990

I, M.H. # 437, observed -- Mr. L. Timms not gulity on the case last week. The case went rough with me by having to be questioned many times by the jury group, on the same questions over + over again.

My doubts -- The letter's signature appeared to have been different than the body of the letter. It had been written while Mr. Timms was in [a] cell, and maybe in a depressed stage.

2. The exact substance, I was expecting it to be blue from the test that was made by the officers the 1st night of the arrest. The actual proof.

3. The person did not check thoroughly the [amount] that was said to have been 74 packs. The chemist.

4. The body language of all the witnesses was taken into consideration.

The case ended [too] fast.

(App. 31).

As a result of this note, defendant moved for mistrial, asserting that "[i]t seems clear that the verdict that was reported was not the verdict that this juror truly had." (10/16/90 Tr. 2). When defense counsel attempted to clarify his position, arguing that there had never been a unanimous verdict, the court denied his motion, at least with respect to grounds of nonunanimity:

MR. HUBER: . . . My position is that this was not a unanimous verdict from the beginning. The jury was not polled. The statement that the verdict was unanimous was simply not correct.

THE COURT: What?

MR. HUBER: The statement that the verdict was unanimous was apparently not correct. It is apparent from the letter that --

THE COURT: What are you talking about?

MR. HUBER: Well, it is apparent from the letter that the juror --

THE COURT: No, no, no, no, let's get squared away. Now, the jury was told that the verdict had to be unanimous, wasn't it?

MR. HUBER: Yes.

THE COURT: All right. They were instructed to that effect?

MR. HUBER: Yes.

THE COURT: There is a presumption that they obeyed the instructions when they came in and they indicated they had a verdict. I presume that was a unanimous verdict. They were asked whether or not they had reached a verdict and the foreperson said yes and announced the verdict. . . .

(Id. at 6).

On October 5, 1990, the day of the verdict, the foreperson of the jury had telephoned the prosecutor and stated that one of the jurors -- the same juror who left the note described above -- had acted very strangely during the trial and deliberations. (11/16/90 Tr. 2; 1/10/91 Tr. 11). The foreperson asked the prosecutor whether there was some way to prevent this juror from serving on any future jury panels. (App. 39). Describing her telephone conversation with the foreperson, the prosecutor stated:

She indicated a couple of things, Your Honor: (1) that the juror was in the room and appeared to be taking clothing off and putting it on, sort of changing clothing. It wasn't that she was stripping down, or anything, in the jury room, but appeared to be putting off a layer of skirt and putting another on, something to that effect, something that one would say is not necessarily usual. But, as the government's papers indicated, there are lots of things that all of us think are not usual, but it doesn't mean that we're not competent, and I think that's a different issue. . . .

The second thing was that the foreperson indicated the juror had taken notes during the trial and appeared to have been writing on top of other writing, so it wasn't like legible writing . . . -- or either that it made lots of sense, looking at the writing . . . -- and that the juror recalled the testimony differently than the other jurors recalled the testimony.

(1/10/91 Tr. 11-12).

At the hearing on defendant's motion for mistrial based on nonunanimity, the court expressed concern about the competence of this juror and the possibility that she might have been unable to form a rational decision on the verdict, and requested briefing on that question. (Id. at 7-14). Defendant moved for a new trial on the ground of juror incompetency, or for a hearing to determine the competency of the juror. (App. 33-37). On January 10, 1990, the court denied that motion and sentenced defendant to 10 years' imprisonment and 5 years' supervised release. (1/10/91 Tr. 16, 18).

SUMMARY OF ARGUMENT

Defendant should have been permitted to introduce evidence that his prior convictions had resulted from guilty pleas. The admission of those prior convictions under Fed. R. Evid. 609(a) was prejudicial to defendant, and the district court should have granted defendant an opportunity to mitigate the prejudicial effect of that evidence. Instead, the district court assumed that if the prosecution would not be permitted to introduce details associated with prior convictions, the defense would be similarly precluded from introducing such details. This was an erroneous legal conclusion, and therefore an abuse of discretion. This error was not harmless because defendant's credibility was a central issue at trial, the jury's decision was evidently not unanimous, and the jury's notes demonstrate that the jury was concerned about the prosecution's evidence.

In addition, the district court plainly erred by failing to give the unanimity instruction. Although the district court mentioned unanimity twice, its first reference pertained only to a portion of the verdict and its second reference merely incorporated the first, and did not explain the meaning of unanimity. The court's omission of the unanimity instruction affected defendant's substantial rights because one juror wrote, in a note dated the same day as the reported verdict, that her verdict was not guilty. The error seriously affected the integrity of judicial proceedings, particularly when considered in conjunction with the inconsistencies in the police testimony and the jury's two notes requesting access to that testimony, one of which also requested rereading of the reasonable doubt instruction.

Finally, the district court erred in denying defendant's motion for a mistrial. First, the district court based its denial of defendant's motion on the erroneous belief that the jury had been properly instructed regarding unanimity. Second, a reported verdict cannot stand if it was not the actual verdict of the jury. In the absence of individual polling, and where one juror has written that she found the defendant not guilty, the court at a minimum should have conducted a hearing into whether the verdict was unanimous.

THE DISTRICT COURT ERRED IN DENYING DEFENDANT THE RIGHT TO INTRODUCE EVIDENCE OF HIS PRIOR GUILTY PLEAS

Standard of Review

A district court's decision regarding the nature and extent of permissible inquiry into prior convictions under Fed. R. Evid. 609(a) is reviewed for abuse of discretion. See, e.g., United States v. Baylor, 97 F.3d 542, 544 (D.C. Cir. 1996); United States v. Lipscomb, 702 F.2d 1049, 1068 (D.C. Cir. 1983) (en banc). A trial court abuses its discretion when its decision is based on an incorrect legal standard. See, e.g., United States v. Atkins, 116 F.3d 1566, 1571 (D.C. Cir. 1997) (error of law is abuse of discretion "'by definition'") (citing Koon v. United States, 116 S. Ct. 2035, 2047 (1996)), cert. denied, __ S. Ct. __, 66 U.S.L.W. 3337 (Nov. 10, 1997) (No. 97-6320).

Defendant Was Prejudiced by the Court's Improper Exclusion of Evidence that Defendant Pled Guilty to Prior Offenses

Fed. R. Evid. 609(a) provides:

For the purpose of attacking the credibility of a witness, . . . evidence that an accused [witness] has been convicted of [a crime punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

Defendant acknowledged his prior convictions on direct testimony to mitigate the effect of Rule 609 impeachment by the government. However, when defendant sought to explain that he had pleaded guilty in those cases, the district court sustained a government objection to that testimony on the basis that the same standard for introducing the details of prior convictions should apply both to the prosecution and the defense.

The district court's decision was legally incorrect. Regardless of whether the government may be precluded from questioning a defendant witness about the details of a prior conviction, or otherwise going beyond the fact of the conviction, "a witness may 'open the door' to more extensive cross-examination by attempting to minimize the conduct for which he was convicted." Baylor, 97 F.3d at 545; see also United States v. Butler, 924 F.2d 1124, 1130 (D.C. Cir.), cert. denied, 502 U.S. 871 (1991).¹² "The usual reason for caution with respect to the scope of cross-examination concerning a witness' prior conviction [is] the need to protect from undue prejudice a defendant who takes the stand . . . ." Baylor 97 F.3d at 545. For that reason, an attempt by the defense to mitigate the prejudicial effect of Rule 609 evidence should not be subject to the same standard that precludes the government from aggravating that prejudicial effect.

Furthermore, this Court has noted that whether a defendant pled guilty to earlier convictions admitted under Rule 609 may be relevant to his or her credibility:

The relevance of prior convictions to credibility may well be different as between a case where the conviction of the accused was by admission of guilt by a plea and on the other hand a case where the accused affirmatively contested the charge and testified, for example, that he was not present and did not commit the acts charged. In the latter situation the accused affirmatively puts his own veracity in issue when he testifies so that the jury's verdict amounted to rejection of his testimony: the verdict is in a sense a de facto finding that the accused did not tell the truth when sworn to do so.

Gordon v. United States, 383 F.2d 936, 940 n.8 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968); see also Lipscomb, 702 F.2d at 1065 n.57 (citing note 8 in Gordon).

Defendant was prejudiced by the introduction of his prior convictions. See, e.g., Fed. R. Evid. 609, advisory committee's note (1990 amend.) ("in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice"); Lipscomb, 702 F.2d at 1062 ("question of prejudice, as Congress well knew, is not if, but how much"); see also Old Chief v. United States, 117 S. Ct. 644, 650-51 (1997) (discussing prejudice resulting from prior conviction evidence in cases involving prior felon status). That prejudice was exacerbated here because both defendant's prior convictions and the instant charges involved drug offenses. See, e.g., Old Chief, 117 S. Ct. at 652 (admission of prior crime similar to pending charges results in "especially obvious" risk of unfair prejudice); Gordon, 383 F.2d at 940 (noting increased risk of prejudice associated with admission of prior convictions for similar crimes). Furthermore, there was no danger here of confusing the jury with collateral issues, or of a time-consuming "mini-trial." See, e.g., Baylor, 97 F.3d at 545; Gordon, 383 F.2d at 940 n.8; Boyer, 150 F.2d at 596.

The district court's error was not harmless in this case. Defendant's credibility was critical to the verdict. There were inconsistencies in government testimony, including the timing of Officer Quander's entrance on the scene of the arrest and whether the majority of the drugs were recovered from defendant's right or left pocket. The jury made repeated requests for additional information, including two requests for access to the testimony of the only two police officers with evidence of defendant's connection to the drugs. When the jury sent the first of these two notes, the district court responded that the jury must rely on its recollection of the testimony. Apparently, the jury was unable or unwilling to accept this response to its first note when it sent the second note specifying, in particular, that the jurors wanted to hear what the officers saw when they entered the building. That note also requested a rereading of the instruction on reasonable doubt. These jury notes call into question the strength of the government's case, and therefore the importance of defendant's credibility. See, e.g., United States v. Houser, 746 F.2d 55, 63 (D.C. Cir. 1984) (jury's difficulty in reaching verdict supports finding that error is not harmless); Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987) (fact that jury was unable to reach a verdict in first trial supports finding of prejudice in second), cert. denied, 485 U.S. 970 (1988). Furthermore, as explained below, the jury was not instructed that its verdict must be unanimous and the jury's verdict was evidently not unanimous.

Accordingly, defendant respectfully requests that this Court reverse the district court's erroneous interpretation of law under Rule 609(a) and remand this case for a new trial.

THE DISTRICT COURT PLAINLY ERRED IN FAILING TO INSTRUCT THE JURY THAT ITS VERDICT MUST BE UNANIMOUS

Standard of Review

Where an appellant did not object to a jury instruction or its omission before the district court, this Court reviews an appellate challenge to that instruction for plain error. Under Fed. R. Crim. P. 52(b), the Court will reverse if "(1) the jury instruction was in error, (2) the error was plain or obvious, and (3) the error affected the defendant's substantial rights." United States v. Gaviria, 116 F.3d 1498, 1509 (D.C. Cir. 1997) (citing United States v. Olano, 507 U.S. 725, 732-34 (1993)). The Court in Olano explained that plain error under Rule 52(b) should be corrected if it "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" 507 U.S. at 736 (citing United States v. Atkinson, 297 U.S. 157, 160 (1936)).

The District Court's Error was Plain

This Court must consider the jury instructions as a whole in determining whether the district court's failure to give the instruction on unanimity was plain error. See, e.g., United States v. Washington, 106 F.3d 983, 996-97 (D.C. Cir. 1997), cert. denied, __ S. Ct. __, 66 U.S.L.W. 3354 (Nov. 17, 1997) (No. 97-5423). The district court below made only two references to unanimity, neither of which properly instructed the jury. First, in the middle of an instruction on the specific charge, the court stated that the jurors "must all agree about which package or packages of suspected cocaine" the verdict related to, "to insure that [the] verdict is unanimous on this point." (10/4/90 a.m. Tr. 76-77) (emphasis added). This reference pertained only to a portion of the verdict. Second, the court stated "[a]s I have already indicated to you, the verdict must be a unanimous one." (10/4/90 a.m. Tr. 80). This instruction incorporated by reference the prior special unanimity instruction but did not inform the jurors that their verdict as a whole must be unanimous. At no time did the court explain the meaning of unanimity or clarify that each and every juror must agree to the verdict.

The standard jury instruction on unanimity in effect in 1990 stated:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to the verdict. Your verdict must be unanimous.

Defendant has a Sixth Amendment right to a unanimous jury verdict. See, e.g., United States v. Brown, 823 F.2d 591, 595 (D.C. Cir. 1987) ("In Apodaca v. Oregon,, 406 U.S. 404 [] (1972), five members of the Supreme Court interpreted [the Sixth Amendment] to endow a federal criminal defendant with the right to a unanimous verdict."); United States v. Essex, 734 F.2d 832, 841 (D.C. Cir. 1984) ("The right to a unanimous verdict is derived from the federal rules and the Sixth Amendment.") (also citing Apodaca). Furthermore (as noted in Essex), Fed. R. Crim. P. 31(a) provides that "[t]he verdict shall be unanimous."

Prejudice under a plain error standard is normally subject to the same requirements as an inquiry into harmless error, although the defendant bears the burden of proof in a plain error inquiry. See Olano at 734; United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir.), cert. denied, 513 U.S. 828 (1994); United States v. Merlos, 8 F.3d 48, 50-51 (D.C. Cir. 1993), cert. denied, 511 U.S. 1064 (1994). In Sullivan v. Louisiana, the Supreme Court held that a constitutionally deficient reasonable doubt instruction would always be prejudicial. In the case of such a "structural" defect, "there has been no jury verdict within the meaning of the Sixth Amendment," and, therefore, "[t]here is no object, so to speak, upon which harmless-error scrutiny can operate." 508 U.S. 275, 280 (1993); see also United States v. Defries, No. 96-3016 (D.C. Cir. December 2, 1997) (slip. op. at 32 n.13). In this case, the district court's omission of the unanimity instruction was a fundamental error that deprived defendant of his Sixth Amendment right to a unanimous jury verdict. This Court should find that this error was structural and presumed to be prejudicial, like the constitutionally deficient reasonable doubt instruction held to be per se error in Sullivan.

Even under a non-structural plain error review, defendant is in the unique position of being able to demonstrate actual prejudice from the court's omission of the unanimity instruction. The dissenting juror's written statement that she "observed" the defendant to be not guilty demonstrates the lack of unanimity of the reported verdict. The dissenting juror cited several reasons for her decision, including several items of evidence and the credibility of the witnesses. There is no suggestion in the note that the juror changed her mind after the verdict was accepted in court; to the contrary, it is evident from the note and the reasons cited that this juror never found the defendant to be guilty. Defendant was deprived of his Sixth Amendment right to a unanimous verdict as a result of the court's failure to instruct the jury that its verdict must be unanimous.

For all of the reasons stated above, these circumstances constitute a miscarriage of justice and threaten the "fairness, integrity or public reputation of judicial proceedings." Defendant respectfully requests that this Court reverse the verdict and remand for a new trial.

THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S MOTION FOR MISTRIAL

Standard of Review

This Court reviews a district court's denial of a motion for mistrial, or a district court's decision whether to hold a hearing to investigate a jury's verdict, for abuse of discretion. See, e.g., United States v. White, 116 F.3d 903, 928 (D.C. Cir.), cert. denied, 118 S. Ct. 390 (1997); United States v. Williams-Davis, 90 F.3d 490, 497 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 986 (1997).

The District Court Should Have Granted a Mistrial, or at a Minimum, Conducted a Hearing Into the Jury's Verdict

Defendant moved for a mistrial on the basis that the verdict was not unanimous. The district court denied that motion, assuming incorrectly (as did counsel) that the jury had been properly instructed on unanimity. To the contrary, as explained above, the court had omitted the unanimity instruction, and its passing references to unanimity did not adequately instruct the jury that its verdict must be unanimous. In these circumstances, the district court should have declared a mistrial or held a hearing to determine whether the verdict was unanimous.

This Court has stated that "[a] verdict becomes immutable by the jury once announced in open court, or when it has been confirmed by a poll, if ordered." United States v. Dakins, 872 F.2d 1061, 1065 (D.C. Cir.), cert. denied, 493 U.S. 966 (1989). There are exceptions to this rule, however, including the alteration of a jury verdict in the event of extraneous influence or coercion. See, e.g., Fed. R. Evid 606(b) (authorizing post-verdict inquiry into extraneous prejudicial information or outside coercion); Remmer v. United States, 347 U.S. 227, 229-30 (1954) (outside communication with juror is presumptively prejudicial); United States v. Williams-Davis, 90 F.3d at 496-97 (qualifying Remmer presumption in light of Rule 606(b) to require inquiry into "'likelihood of prejudice'" caused by outside intrusion).

Rule 606(b) explicitly prohibits investigation into the jury's deliberations or "mental processes." However, Rule 606(b) "is silent regarding inquiries designed to confirm the accuracy of a verdict." Attridge v. Cencorp Div. of Dover Tech. Intern., 836 F.2d 113, 116 (2d Cir. 1987). Accordingly, a verdict may be reversed if the verdict delivered was not the verdict agreed upon by the jury, or was the result of mistake. See, e.g., McCullough v. Consolidated Rail Corp., 937 F.2d 1167, 1169 (6th Cir. 1991); Attridge, 836 F.2d at 114 & 116-17; United States v. Dotson, 817 F.2d 1127, 1130 (5th Cir.), vacated in part on other grounds, 821 F.2d 1034 (5th Cir. 1987); Young v. United States, 163 F.2d 187, 189 (10th Cir.), cert. denied, 332 U.S. 770 (1947). A verdict can also be reversed for nonunanimity. See, e.g., United States v. Patterson, 26 F.3d 1127, 1129 (D.C. Cir. 1994) (reversing verdict after district court dismissed juror without Rule 23(b) finding that dismissal was "necessary" and for "just cause"); Essex, 734 F.2d at 834 & 844-46 (same); United States v. Brown, 823 F.2d 591, 596-97 (D.C. Cir. 1987) (where possibility exists that juror believes evidence is insufficient to convict, juror dismissal violates unanimity requirement).

In Fox v. United States, 417 F.2d 84, 88-89 (5th Cir. 1969), the foreperson of the jury announced a verdict of guilty in open court. The jury was individually polled, but the eighth juror did not respond when his name was called. The verdict was recorded, but the defendant’s counsel later obtained an affidavit from the eighth juror stating that he had never voted for the government in the jury room, and affidavits from four other jurors confirming that the jury had believed that a majority was sufficient to return a verdict. Reversing the district court’s denial of the defendant’s motion for a new trial, the Fifth Circuit stated that "[i]t has long been well settled that the affidavit of a juror is admissible to show the true verdict or that no verdict was reached at all. That is precisely the situation we have here." 417 F.2d at 89 (citations omitted). That is also the situation in the instant case.

In addition, this jury was not individually polled. In most cases in which a guilty verdict has been upheld despite a question regarding unanimity, the reported verdict was confirmed by individual polling of the jury. See, e.g., United States v. Straach, 987 F.2d 232, 236-37 (5th Cir. 1993) (right to unanimous verdict not violated despite compromise where, when polled, each juror confirmed verdict); United States v. Wilson, 534 F.2d 375, 376-79 (D.C. Cir. 1976) (after juror repudiated verdict and court requested juror's attendance at meeting in chambers but juror failed to attend, district court did not abuse discretion in denying motion for new trial where jury poll revealed unanimity); Williams v. United States, 419 F.2d 740, 746 (D.C. Cir. 1969) ("polling of the jury can serve to clear up apparent confusion on the part of the jury"), cert. denied, 409 U.S. 872 (1972). "The purpose of the poll is to test the uncoerced unanimity of the verdict by requiring 'each juror to answer for himself, thus creating individual responsibility, eliminating any uncertainty as to the verdict announced by the foreman.'" United States v. Mathis, 535 F.2d 1303, 1307 (D.C. Cir. 1976) (citations omitted); see also Virgin Islands v. Hercules, 875 F.2d 414, 418 (3d Cir. 1989). Polling frequently uncovers nonunanimity despite a reported verdict. E.g., United States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979) (juror's denial of guilty verdict on polling as to one of five defendants required remand of all five verdicts, where government was required to show participation of at least five participants in gambling business); Sincox v. United States, 571 F.2d 876, 877-79 (5th Cir. 1978) (verdict reversed after one juror, on polling, stated that his verdict was guilty "with reasonable doubt"); United States v. McCoy, 429 F.2d 739, 741-42 (D.C. Cir. 1970) (verdict reversed after one juror stated on individual polling that her verdict was guilty "with a question mark"); Matthews v. United States, 252 A.2d 505 (D.C. App. 1969) (verdict reversed after one juror, on polling, stated verdict was "conditional" before declaring defendant guilty).

Neither defendant's failure to object to the court's omission of the unanimity instruction nor his failure to request a jury poll waived his right to a unanimous jury. See, e.g., Sincox, 571 F.2d at 877-79 (defendant did not waive right to unanimous verdict despite failure to object to entry of verdict after juror responded on polling that he had reasonable doubt). Indeed, most circuits have held that the right to a unanimous jury is not waivable, even by a conscious and deliberate decision. See, e.g., United States v. Ullah, 976 F.2d 509, 512 (9th Cir. 1992); United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir.), cert. denied, 484 U.S. 867 (1987); United States v. Smedes, 760 F.2d 109, 113 (6th Cir. 1985); United States v. Pachay, 711 F.2d 488, 490-91 (2d Cir. 1983); Morris, 612 F.2d at 489; United States v. Scalzitti, 578 F.2d 507, 510-12 (3d Cir. 1978); United States v. Gibson, 553 F.2d 453, 456 n.4 (5th Cir. 1977); Hibdon v. United States, 204 F.2d 834, 838 (6th Cir. 1953); but see Sanchez v. United States, 782 F.2d 928, 934 (11th Cir. 1986) (accepting knowing and voluntary waiver of right to unanimous verdict). This Court has cited many of these cases with approval. See Essex, 734 F.2d at 840; see also Ullah, 976 F.2d at 512 (citing D.C. Circuit approval of this principle in Essex). No federal court, to defendant's knowledge, has upheld an inadvertent waiver of a federal criminal defendant's constitutional and statutory right to a unanimous jury.¹⁴

The district court should have granted defendant's motion for a mistrial, or at least conducted a hearing to question the nonunanimous juror or other jurors when it received the juror's note stating that she found the defendant not guilty. Such a hearing would not have required an investigation into the jury's mental processes or deliberations, as prohibited by Fed. R. Evid. 606(b); a hearing would have required only questioning as to whether the jurors understood the requirement of unanimity and whether the verdict was unanimous. However, at this time, more than seven years after trial, it is unlikely that jurors could be located or that they would clearly recall whether their verdict was unanimous. For that reason, a hearing involving the testimony of former jurors is unlikely to resolve these issues.

Accordingly, and for all of the reasons stated above, defendant respectfully requests that this Court reverse the decision of the district court denying his motion for mistrial and remand for a new trial.

CONCLUSION

Defendant respectfully requests this Court to reverse the verdict against him and remand for new trial as a result, both individually and cumulatively, of (1) the district court's abuse of discretion in denying defendant the right to introduce evidence to mitigate the prejudice resulting from the admission of his prior convictions; (2) the district court's plain error in failing to instruct the jury on unanimity; and (3) the district court's abuse of discretion in denying defendant's motion for mistrial because the verdict was not unanimous.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 500

Washington, D.C. 20004

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Lee F. xxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).