CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

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

A. Parties and Amici: The parties below were the defendant-appellant, xxxxxxxx, and the plaintiff-appellee, the United States of America. They also are the only parties on appeal. There are no amici.

B. Rulings Under Review: In this appeal, appellant seeks review of the circumstances of his trial, held on September 9-11, 1994, in which he appeared before the jury for all three days wearing prison clothing and of the government's introduction of evidence regarding his custodial status.

Appellant also seeks review of the district court's ruling at sentencing on December 1, 1994, that because Mr. xxxxxxx was the sole person charged in the offense, his sentence could not be reduced for being a minimal participant.

C. Related Cases: This case has not been before this Court or any other court previously.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES vi

JURISDICTION vi

ISSUES PRESENTED vi

STATEMENT OF THE CASE 1

Proceedings Below 1

Statement of Facts 2

A. The Evidence At Trial 2

1. The Government's Evidence 2

2. The Defense Case 4

3. The Government's Rebuttal Case 5

B. The Sentencing Hearing 5

ARGUMENT 6

Summary of Argument 6

Discussion 7

I. Mr. xxxxxxx's Constitutional Right To Due Process Of Law And His Right To Be Presumed Innocent Were Abrogated When He Appeared Before The Jury For All Three Days Of His Trial In Prison Garb And The Government Adduced Testimony Regarding Mr. xxxxxxx's Custodial Status. 7

A. Standard of Review 7

B. Evidence Of Mr. xxxxxxx's Custodial Status Was Inherently Prejudicial 9

C. Evidence Of Mr. xxxxxxx's Custodial StatusWas Plainly Erroneous 13

II. The Trial Court Did Not Recognize That It Had The Authority To Give Mr. xxxxxxx Credit For His Mitigating Role In The Offense Through A Downward Departure 17

A. Standard of Review 17

B. The District Court Had The Authority To Depart Downward Under U.S.S.G. § 5K2.0 For Mr. xxxxxxx's Minimal Role In The Offense 18

CONCLUSION 21

CERTIFICATION OF BRIEF LENGTH 21

CERTIFICATE OF SERVICE 22

TABLE OF AUTHORITIES

CASES

Brooks v. Texas,

381 F.2d 619 (5th Cir. 1967) 10

Chapman v. California,

386 U.S. 18 (1967) 7

*Estelle v. Williams,

425 U.S. 501 (1976) 9, 10, 15

Hernandez v. Beto,

443 F.2d 634 (5th Cir. 1971),

cert. denied, 404 U.S. 879 (1971) 10

*Holbrook v. Flynn,

475 U.S. 560 (1986) 9, 13, 15

United States v. Atkinson,

297 U.S. 157 (1936) 8

United States v. Baskin,

886 F.2d 383 (D.C. Cir. 1989),

cert. denied, 494 U.S. 1089 (1990) 18

United States v. Beckham,

968 F.2d 47 (D.C. Cir. 1992) 18

*United States v. Bierley,

922 F.2d 1061 (3rd Cir. 1990) 20

United States v. Brown,

555 F.2d 407 (5th Cir. 1977),

cert. denied, 435 U.S. 904 (1978) 8

United States v. Caballero,

936 F.2d 1292 (D.C. Cir. 1991) 19-20

United States v. Carter,

522 F.2d 666 (D.C. Cir. 1977) 11

United States v. Castillo,

924 F.2d 1227 (2d Cir. 1991),

cert. denied, ___ U.S. ___, 115 S. Ct. 101 (1994) 16-17

United States v. Copelin,

996 F.2d 379 (D.C. Cir. 1993) 16

United States v. DeCoster,

624 F.2d 196 (D.C. Cir. 1976),

cert. denied, 444 U.S. 944 (1979) 9-10

United States v. Demers,

13 F.3d 1381 (9th Cir. 1994) 20-21

United States v. Doe,

903 F.2d 16 (D.C. Cir. 1990) 8

United States v. Essex,

734 F.2d 832 (D.C. Cir. 1984) 8, 15

United States v. Faulkner,

17 F.3d 745 (5th Cir.),

cert. denied, ___ U.S. ___, 115 S. Ct. 663 (1994) 8

United States v. Jefferson,

925 F.2d 1242 (10th Cir. 1991),

cert. denied, 502 U.S. 884 (1991) 8

United States v. Lawton,

995 F.2d 290 (D.C. Cir. 1993) 8, 17

United States v. Lonedog,

929 F.2d 568 (10th Cir.),

cert. denied, 502 U.S. 854 (1991) 12

United States v. Lopez,

938 F.2d 1293 (D.C. Cir. 1991) 17-18

United States v. Merlos,

8 F.3d 48 (D.C. Cir. 1993),

cert. denied, ___ U.S. ___, 114 S. Ct. 1635 (1994) 8

United States v. Olano,

___ U.S. ___, 113 S. Ct. 1770 (1993) 8

United States v. Olibrices,

979 F.2d 1557 (D.C. Cir. 1992) 19, 20

United States v. Ortez,

902 F.2d 61 (D.C. Cir. 1990) 18

United States v. Pallais,

921 F.2d 684 (7th Cir. 1990),

cert. denied, 502 U.S. 854 (1991) 11-12

United States v. Patillo,

817 F. Supp. 839 (C.D. Cal. 1993) 19

United States v. Rhodes,

886 F.2d 375 (D.C. Cir. 1989) 13

United States v. Saro,

24 F.3d 283 (D.C. Cir. 1994) 18

United States v. Stewart,

20 F.3d 911 (8th Cir. 1994) 12

United States v. Speenburgh,

990 F.2d 72 (2d Cir. 1993) 20

United States v. Tarantino,

846 F.2d 1384 (D.C. Cir.),

cert. denied, 488 U.S. 867 (1988) 13

United States v. Torres,

901 F.2d 205 (2d Cir.),

cert. denied, 498 U.S. 906 (1990) 8

*United States v. Valdez-Gonzalez,

957 F.2d 643 (9th Cir. 1992) 19

United States v. Webster,

996 F.2d 209 (9th Cir. 1993),

cert. denied, 502 U.S. 1061 (1992) 19-20

United States v. Young,

470 U.S. 1 (1985) 8, 13

Woods v. Dugger,

923 F.2d 1454 (11th Cir.),

cert. denied, 502 U.S. 953 (1991) 9

STATUTES AND SENTENCING GUIDELINES

18 U.S.C. §3231 3

18 U.S.C. § 3553(f) 5

21 U.S.C. § 841 1

28 U.S.C. § 1291 3

U.S.S.G. § 1B1.1 18-19

U.S.S.G. § 3B1.2 6, 18, 19, 20

U.S.S.G. § 3E1.1 19

U.S.S.G. § 5C1.2 5

*U.S.S.G. § 5K2.0 18, 19, 20

STATUTES AND RULES

Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), pertinent statutes, rules, and guidelines are reproduced in the Addendum to this brief.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Federal Rule of Appellate Procedure 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUES PRESENTED

I. Whether Mr. xxxxxxx's constitutional right to due process of law and his right to the presumption of innocence were abrogated when he appeared before the jury throughout his three-day trial in prison garb and when the government adduced testimony regarding his custodial status.

II. Whether the trial court erred in ruling that it lacked the ability to give Mr. xxxxxxx credit under the federal sentencing guidelines for his mitigating role in the offense.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. xx-3173

UNITED STATES OF AMERICA, Appellee,

v.

MICHAEL xxxxxxx, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

STATEMENT OF THE CASE

Proceedings Below

Michael xxxxxxx was arrested on April 23, 1993, and he was held without bond from the time of his presentment on that same date. On May 20, 1993, he was charged in a two-count indictment with possession with the intent to distribute cocaine base in excess of fifty grams, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (Count One), and with possession with the intent to distribute cannabis, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(D) (Count Two). (A. 1-2) After entering a guilty plea and then withdrawing it (A. 11, 13), Mr. xxxxxxx proceeded to trial before the Honorable Harold H. Greene on September 7-9, 1994. On September 9, 1994, the jury convicted Mr. xxxxxxx of both counts of the indictment. He was sentenced on December 1, 1994, to concurrent terms of 121 months imprisonment on Count One and six months on Count Two, to be followed by concurrent terms of supervised release of five years on Count One and two years on Count Two. (A. 3-6) A notice of appeal was timely filed on December 2, 1994. (A. 15)

Statement of Facts

A. The Evidence At Trial

1. The Government's Evidence

On April 23, 1993, Mr. xxxxxxx was among the passengers on a bus travelling between Newark, New Jersey and Richmond, Virginia, which stopped in Washington, D.C. shortly after 1:00 a.m. (A. 20, 41-47, 66-67) When the bus arrived in the station members of the Metropolitan Police Department Drug Interdiction Unit observed some passengers, including Mr. xxxxxxx, leave and then re-board the bus. (A. 21-22, 47-48) Six police officers boarded the bus to interview passengers. (A. 21-22, 48) Detective Lawrence Coates questioned Mr. xxxxxxx, who was seated in the aisle seat the fourth row from the front on the driver's side of the bus. (A. 23) On the seat next to Mr. xxxxxxx was a black tote bag. (A. 24) Coates testified that there was no other luggage either on the luggage rack above Mr. xxxxxxx's head, nor on the floor below him, and that Mr. xxxxxxx stated that he had no other bags. (A. 23-24, 37, 49, 50, 65) Mr. xxxxxxx was never seen carrying the black tote bag. (A. 47) After identifying himself as a police officer, Coates asked Mr. xxxxxxx for his ticket and Mr. xxxxxxx showed him a round-trip ticket for travel between Newark and Richmond (A. 24-25) and stated that his destination was Richmond. (A. 27, 51)

Coates testified that he asked Mr. xxxxxxx for permission to search the black tote bag and that Mr. xxxxxxx agreed. (A. 27, 58) Coates discovered in the tote bag 325 grams of cocaine base in a brown lunch-type paper bag. (A. 29-30, 38-40, 59-60) Mr. xxxxxxx was arrested. (A. 30, 59-60) The tote bag also contained a number of other items including a pair of gray slacks, an athletic jacket, a shirt, and some compact discs. (A. 35-37) Coates admitted that he never searched the luggage across from where Mr. xxxxxxx was seated, (A. 49-50, 63) nor did he speak with other people on the bus or determine whether other people got back on the bus after Mr. xxxxxxx was arrested. (A. 63)

A search incident to Mr. xxxxxxx's arrest uncovered an additional approximately 125 grams of cocaine base and some marijuana in a brown paper bag in the pocket of a jacket he was wearing underneath his jean jacket. (A. 31-32, 37-38)

No fingerprint evidence linked Mr. xxxxxxx to the black tote bag (A. 62, 77-78) and there was no testimony that the tote bag had any identification tags or other indication that it belonged to Mr. xxxxxxx. Likewise, there were no documents or photographs in the tote bag linking it to Mr. xxxxxxx. The only suggestion that it belonged to Mr. xxxxxxx came from Coates' testimony that he had retrieved it from the seat next to Mr. xxxxxxx and that he allegedly saw Mr. xxxxxxx touching it. (A. 24, 26)

Three of the government's witnesses, Detective Lawrence Coates, Officer Kimberly Oxendine Carter, and United States Marshal Michael Jones, made in-court identifications of Mr. xxxxxxx, referring to him as the person at the defense counsel table wearing a "blue jumpsuit." (A. 22, 80, 135).

2. The Defense Case

Mr. xxxxxxx's defense was that the drugs in his jacket pocket were for his own personal use and that the tote bag and drugs within it did not belong to him. Accordingly, the defense contended that Mr. xxxxxxx was only guilty of simple possession of those drugs. To establish these two points the defense called Debra xxxxxxx, Mr. xxxxxxx's wife, who also was an admitted drug user. (A. 81-124) She testified about relatives Mr. xxxxxxx had in Virginia (A. 90, 109-111, 119), about Mr. xxxxxxx's drug habit (A. 81-84, 88-90, 95-109) and that the black tote bag and various items in it did not belong to her husband. (A. 85-88, 95) She testified that although she and her husband were not living together in April, 1993, she saw him frequently and that she had not seen him with the tote bag, that a pair of pants found within the bag were too small for him, and that he did not own compact discs or a machine on which to play them and did not listen to the kind of music on the discs recovered from the bag. (9/8/94 Tr. 85-90)

To establish that Mrs. xxxxxxx was not aware of her husband's clothing size, and to lay the foundation for a rebuttal witness' testimony, the prosecutor cross-examined her about the size of a pair of pants she had brought to court for her husband to wear during the trial. (A. 91-95)

3. The Government's Rebuttal Case

In its rebuttal case the government called witnesses to refute the defense that Mr. xxxxxxx could personally use the quantity of drugs found in the jacket pocket, and to establish Mr. xxxxxxx's pants size. (A. 134-142; 9/9/94 Tr. 145-152) With regard to the latter, the government called Deputy United States Marshall Michael Jones, to whom Mrs. xxxxxxx had given a pair of pants for her husband to wear during the trial. (A. 134-138) Jones testified that he was the United States Marshal responsible for "handling" Mr. xxxxxxx during the trial. (A. 135) In that capacity, he took the pair of pants into "the back holding cell" where Mr. xxxxxxx was being held. (A. 136-138) Although Mr. xxxxxxx tried them on there, he was unable to fit into them.

B. The Sentencing Hearing

On December 1, 1994, the district court held a sentencing hearing in Mr. xxxxxxx's case. Defense counsel explained that the sentencing had been continued to permit Mr. xxxxxxx to be sentenced under the provisions of 18 U.S.C. § 3553(f) and the corresponding federal sentencing guideline, U.S.S.G. § 5C1.2., colloquially known as the "escape valve" or "safety valve" provisions, enacted to permit first-time drug offenders, especially "mules," to be sentenced below the statutory mandatory minimum. (A. 146).

Defense counsel argued that even if Mr. xxxxxxx met the five requirements for the "safety valve" provision, the court would then need to determine whether there were other bases upon which to "downward depart." (A. 148-149) However, Mr. xxxxxxx's lawyer then mischaracterized Mr. xxxxxxx's minimal role in the offense, under U.S.S.G. §3B1.2, as a basis for downward departure. (A. 149) The government argued that because there was no one against whom "to compare Mr. xxxxxxx's role," no reduction should be made in his sentence for being a minimal participant. (A. 152-153). The district court ruled that it could not "give [Mr. xxxxxxx] any credit for being a minor or minimal participant for the very reason that [the prosecutor gave], namely we don't know anything about anybody else who was involved . . . " (A. 153). The district court observed that the "safety valve" provision would not "do Mr. xxxxxxx any good unless he were also to be found a minimal participant." (A. 153).

ARGUMENT

Summary of Argument

Mr. xxxxxxx's appearance throughout his trial in a blue prison jumpsuit, together with Marshal Jones' testimony unmistakably conveyed to the jury that Mr. xxxxxxx was incarcerated prior to and during his trial. This knowledge on the jury's part was inherently prejudicial to Mr. xxxxxxx. Moreover, it was plain error because it seriously affected the fairness and integrity of the trial by impermissibly compromising Mr. xxxxxxx's presumption of innocence. The jury's knowledge of Mr. xxxxxxx's custodial status conveyed to them that he had already been determined to be both dangerous and guilty. Moreover, since his defense was that he was a mere drug user rather than a seller, and since jurors know that drug dealers are more dangerous than drug users, and that a mere possessor would be less likely to be incarcerated pending trial, it suggested to the jury that the judicial system had already determined that Mr. xxxxxxx's defense lacked merit.

Because the district court was unaware that it had the authority to depart downward in Mr. xxxxxxx's case for his minimal role, even though he was a solo actor, the case should be remanded for re-sentencing.

Discussion

I. Mr. xxxxxxx's Constitutional Right To Due Process Of Law And His Right To Be Presumed Innocent Were Abrogated When He Appeared Before The Jury For All Three Days Of His Trial In Prison Garb And The Government Adduced Testimony Regarding Mr. xxxxxxx's Custodial Status

A. Standard of Review

Generally constitutional error is reviewed to determine whether it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). Because Mr. xxxxxxx's attorney failed to object to Mr. xxxxxxx's appearance before the jury in prison garb, this Court must review his conviction using the plain error standard. For error to be plain there must be 1) a waived legal error, 2) that was "'plain' or 'obvious' under current law" and 3) that was prejudicial. United States v. Merlos, 8 F.3d 48, 50 (D.C. Cir. 1993), citing United States v. Olano, U.S. , 113 S. Ct. 1770, 1777-78 (1993), cert. denied, U.S. , 114 S. Ct. 1635 (1994). See also United States v. Lawton, 995 F.2d 290, 294 (D.C. Cir. 1993) (plain errors are those which "'seriously affect the fairness, integrity, or public reputation of judicial proceedings'"), quoting United States v. Atkinson, 297 U.S. 157, 160 (1936); United States v. Doe, 903 F.2d 16, 26 (D.C. Cir. 1990) (finding plain error in prosecutor's remarks during closing argument because those comments "'"seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings."'"), citing United States v. Young, 470 U.S. 1, 15 (1985); United States v. Essex, 734 F.2d 832, 843-844 (D.C. Cir. 1984) (setting forth various definitions of "plain error").

Even under the plain error standard this Court should review Marshal Jones' testimony and Mr. xxxxxxx's appearance before the jury throughout his trial in prison garb, "less rigidly" since the Court is called upon to review a constitutional error. United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir. 1991), cert. denied, 502 U.S. 884 (1991). See also United States v. Faulkner, 17 F.3d 745, 757 (5th Cir.), cert. denied, U.S. , 115 S. Ct. 663 (1994); United States v. Torres, 901 F.2d 205, 208 (2d Cir.), cert. denied, 498 U.S. 906 (1990); United States v. Brown, 555 F.2d 407, 420 (5th Cir. 1977), cert. denied, 435 U.S. 904 (1978).

B. Evidence Of Mr. xxxxxxx's Custodial Status

Was Inherently Prejudicial

The jury's knowledge of Mr. xxxxxxx's custodial status, based both on Marshal Jones' testimony and on Mr. xxxxxxx's appearance in jail clothes, was impermissible and was inherently prejudicial. Inherent prejudice occurs whenever there is "'an unacceptable risk . . . of impermissible factors coming into play'" in the jury's decision. Holbrook v. Flynn, 475 U.S. 560, 570 (1986), citing Estelle v. Williams, 425 U.S. 501, 505 (1976). As the reviewing court, this Court must "examine . . . first, whether there [was] an 'impermissible factor [that came] into play' and second, whether it pose[d] an unacceptable risk.'" Woods v. Dugger, 923 F.2d 1454, 1457 (11th Cir.), cert. denied, 502 U.S. 953 (1991).

It is well-established that an accused's custodial status is an impermissible factor for the jury to consider in rendering a verdict. The Supreme Court has explained that "prison clothes [are an] unmistakable indication of the need to separate a defendant from the community at large, [and therefore likely to be] interpreted as a sign that he is particularly dangerous or culpable." Holbrook v. Flynn, 475 U.S. at 569. The Court concluded that an accused's appearance before the jury at trial in jail clothing is "inherently prejudicial." Id. at 568. See United States v. DeCoster, 624 F.2d 196, 252 n. 66 (D.C. Cir. 1976) (recognizing that trying an accused "in prison attire [was] inherently prejudicial" and that "actual harm need not be shown"), citing Estelle v. Williams, 425 U.S. at 504, cert. denied, 444 U.S. 944 (1979); Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied, 404 U.S. 879 (1971) (it is inherently prejudicial for an accused to be tried in prison garb); Brooks v. Texas, 381 F.2d 619, 624 (5th Cir. 1967) ("inherently unfair to try a defendant for crime while garbed in his jail uniform").

In Estelle v. Williams, supra, the Supreme Court articulated the concern that an accused wearing jail clothing before the jury could have adverse consequences upon the presumption of innocence. It stated, "[c]ourts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system." 425 U.S. at 504 (footnote omitted).

The Supreme Court cautioned that "[t]o implement the presumption of innocence, courts must be alert to factors that may undermine the fairness of the fact-finding process" and "must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." 425 U.S. at 503 (citation omitted). In light of that admonition, it was error for Mr. xxxxxxx's jury to have learned that he was incarcerated prior to and during his trial. Because "[t]he actual impact of a particular practice on the judgment of jurors cannot always be fully determined[, . . .] the probability of deleterious effects on fundamental rights calls for close judicial scrutiny." Estelle v. Williams, 425 U.S. 501, 504 (1976).

This Court also has "condemn[ed] the practice of producing prisoners in court who are dressed in clothes typical of jails or penal institutions . . ." United States v. Carter, 522 F.2d 666, 677 (D.C. Cir. 1977). Carter involved two co-defendants who were charged together in one case, and one of whom, Patterson, was individually charged in a second case. At Patterson's trial his co-defendant, who had been convicted in a prior trial, was brought into the courtroom in prison garb to be identified. The trial judge told the jury that Patterson's co-defendant and another individual were involved in "'a prior proceeding in this matter.'" 522 F.2d at 677. There was a "close[] link[]" between Patterson and the two individuals involved in the other proceeding. Id. This Circuit ruled that there was merit to Patterson's argument that upon seeing the co-defendant in prison garb, the jury likely thought he had been convicted and therefore that Patterson was also guilty. Id.

There was also an unacceptable risk that Mr. xxxxxxx's pre-trial incarceration influenced the jury because he was before them in prison clothes for all three days of his trial. Thus, his situation is unlike those in which the jury catches only a fleeting glimpse of the accused in circumstances that only ambiguously suggest that he is in custody. See e.g., United States v. Pallais, 921 F.2d 684, 686 (7th Cir. 1990) (where jurors saw accused in unmarked United States marshal's car in which the only sign of custody was the grill between the front and back seats common to taxicabs, and where jurors could not see accused's handcuffs, no need for trial court to determine whether jurors could render fair and impartial verdict), cert. denied, 502 U.S. 854 (1991). The circumstances here also are distinguishable from circumstances in which the jurors would have learned through legitimate means that the accused was in custody. See e.g., United States v. Lonedog, 929 F.2d 568, 570-571 (10th Cir. 1991) (no error for accused to be cross-examined about whether he was incarcerated when jury properly learned of prior felony conviction anyway and reference to incarceration was "isolated" rather than "a 'continuing' occurrence"), cert. denied, 502 U.S. 854 (1991). Finally, nothing about Mr. xxxxxxx's behavior occasioned his being tried in prison clothing. See e.g., United States v. Stewart, 20 F.3d 911, 915-916 (8th Cir. 1994) (accused's conduct justified his having to wear leg irons in courtroom).

In Mr. xxxxxxx's case, not only did he sit before the jury for all three days of his trial in prison clothing, but three of the government's witnesses identified him as the person seated at defense counsel table dressed in the blue jumpsuit. Lest there be any doubt in the jurors' minds about whether Mr. xxxxxxx was incarcerated prior to and during his trial, the testimony of United States Marshal Michael Jones definitively resolved the question. The combination of Mr. xxxxxxx's continuous presence before the jury in jail clothing and the testimony of Marshal Jones, which conveyed to the jury that Mr. xxxxxxx was incarcerated prior to and during his trial, unconstitutionally prejudiced Mr. xxxxxxx.

C. Evidence Of Mr. xxxxxxx's Custodial Status Was Plainly Erroneous

With respect to whether there was a legal error that was "plain" or "obvious," clearly the law on this issue was well-settled long before Mr. xxxxxxx's trial in this case. The Supreme Court had decided Estelle eighteen years before the trial and this Court had decided Carter seventeen years before it. Accordingly, the error was plain and obvious.

With respect to whether the error was prejudicial, this Court must "consider both the way the evidence was presented to the jury and the sufficiency of the other evidence in support of the conviction." United States v. Rhodes, 886 F.2d 375, 379 (D.C. Cir. 1989), citing United States v. Young, 470 U.S. 1, 16-20 (1985); United States v. Tarantino, 846 F.2d 1384, 1403 (D.C. Cir.), cert. denied, 488 U.S. 867 (1988). An examination of both factors illustrates the prejudice to Mr. xxxxxxx.

First, the evidence that Mr. xxxxxxx was a prisoner in jail was presented both visually and verbally, such that the jury could not fail to comprehend his incarceration. Mr. xxxxxxx's continual presence in a prison jumpsuit throughout the trial was a constant reminder to them that he had already been determined to be both "dangerous" and "culpable." Holbrook v. Flynn, 475 U.S. at 569. Second, Marshal Jones' testimony resolved any question about the need to incarcerate Mr. xxxxxxx as it made abundantly clear that he was being held under lock and key.

With regard to the second prong of the prejudice test, the sufficiency of the other evidence supporting the conviction of possession with the intent to distribute, that evidence was not strong. The government's evidence of Mr. xxxxxxx's nexus to the tote bag was weak. There were no identification cards or photographs in the bag linking it to him; the pants in the bag were not his size; and there was no fingerprint evidence connecting him to the bag. In short, the only evidence suggesting he possessed the tote bag was Coates' testimony that Mr. xxxxxxx had claimed that it was his and Coates' testimony that he allegedly saw Mr. xxxxxxx touching the bag. That testimony was not corroborated by any audio or video surveillance nor by any photographs that supported Coates' claims. Coates' testimony was contradicted by Debra xxxxxxx's testimony that she had not seen her husband with the tote bag and that he did not own compact discs or a machine on which to play them, and did not listen to the sort of music contained on the discs found within the bag.

In light of the weakness of the evidence of possession with the intent to distribute, Mr. xxxxxxx's appearance before the jury in a blue prison jumpsuit and Marshal Jones' testimony impermissibly undermined Mr. xxxxxxx's defense. Mr. xxxxxxx's defense was that he was a drug addict who possessed the drugs found in the jacket pocket for his personal use, but that he never possessed the tote bag or the drugs recovered from it. If Mr. xxxxxxx was merely a user, and not a distributor, the jury well could have assumed that on the lesser charge of possession, Mr. xxxxxxx would not have been detained and held without bond. The fact of his pre-trial incarceration implied that a determination had already been made that Mr. xxxxxxx was more than a mere user. Marshal Jones' testimony and Mr. xxxxxxx's appearance before the jury in jail clothing supported the government's theory that he possessed all of the drugs and did so with the intent to distribute them.

This Court has held that the plain error doctrine is to be used for errors that are "vital to defendants." United States v. Essex, 734 F.2d at 844. It is difficult to imagine a more vital component of American criminal jurisprudence than the presumption of innocence which was compromised when Mr. xxxxxxx's jury saw him at counsel table throughout his trial in a prison jumpsuit, an error compounded by Marshall Jones' testimony. See Estelle v. Williams, 425 U.S. at 503 ("The presumption of innocence, . . . is a basic component of a fair trial under our system of criminal justice.") "[T]he fairness of the entire proceeding was called into question" because Mr. xxxxxxx's appearance before the jury in prison clothing and the substance of Marshal Jones' testimony suggested that he was both guilty and dangerous. Holbrook v. Flynn, 475 U.S. at 469. The notion of a drug addict, as Mr. xxxxxxx maintained he was, being dangerous (and therefore in need of pre-trial incarceration) is far less common than the assumption that a drug distributor or dealer is dangerous. Since Mr. xxxxxxx's defense was that he was merely an addict, but not a distributor as the government alleged, he was substantially prejudiced by proceeding to trial in prison clothing and by the admission of Jones' testimony.

In United States v. Copelin, 996 F.2d 379 (D.C. Cir. 1993), this Court found plain error in the trial court's failure to give a limiting instruction about the use which the jury could make of evidence of the accused's positive drug tests. Applying the "substantial prejudice" test, the Court ruled that substantial prejudice existed where the evidence of positive drug tests which was admitted to impeach the accused, "could also have substantive significance." Id. at 384. This Court found that the prejudice which accrued to the accused in Copelin was borne of "the opprobrium that members of the jury may have felt toward drug users" as well as the credence it lent to "the government's contention that [the accused] was the man who sold the same drug to [a police officer] on the day in question." Id. at 385.

A similar analysis applies to Mr. xxxxxxx's case. The jury likely felt considerable antipathy toward Mr. xxxxxxx, whose dress indicated that the judicial system had already branded him a dangerous criminal who warranted incarceration even before he had been convicted. Moreover, the jury's awareness that Mr. xxxxxxx was incarcerated pre-trial lent credence to the government's theory that he was a drug dealer, and not merely an addict, because he was held without bond. It is fair to assume that in this day and age jurors are sophisticated enough to know that someone who is involved in drug distribution is a bigger player than someone who is a mere user, and that jurors are also savvy enough to know that a person involved in drug distribution is less likely to be released pending trial. See United States v. Castillo, 924 F.2d 1227, 1233 (2d Cir. 1991) ("[s]imply stated, we are not convinced that . . . jurors in today's climate, flush with daily news of the latest drug bust, need an expert to enlighten them . . ."), cert. denied, U.S. , 115 S. Ct. 101 (1994).

In short, by virtue of Marshal Jones' testimony and Mr. xxxxxxx's appearance in prison garb there is a "distinct possibility" that the jury rejected Mr. xxxxxxx's defense that he merely possessed the drugs in the jacket pocket and that he did so for his own personal use, rather than possessing all the drugs the police recovered and doing so with the intent to distribute them. Lawton, 995 F.2d at 294 (plain error for trial court to give instruction that expanded indictment of local union official for embezzlement where indictment charged official with embezzling from local union and instruction allowed conviction on basis of embezzlement from local, district or international union; substantial rights were affected because jury determined that checks were authorized by local union but not by other entities). To that extent, the error of permitting the jury to learn of Mr. xxxxxxx's custodial status through Marshall Jones' testimony and through his appearance before the jury in prison clothing was plain error.

II. The Trial Court Did Not Recognize That It Had The Authority To Give Mr. xxxxxxx Credit For His Mitigating Role In The Offense Through A Downward Departure

A. Standard of Review

"A sentencing court's decision not to depart is reviewable if based on a misconstruction of its authority to depart." United States v. Lopez, 938 F.2d 1293, 1296 (D.C. Cir. 1991). See United States v. Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992) (appellate court should remand for re-sentencing where it appears that trial court misunderstood its authority to depart or believed that its authority to depart "was constrained in a way it actually was not"); United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990) (same); United States v. Baskin, 886 F.2d 383, 389 (D.C. Cir. 1989) (same), cert. denied, 494 U.S. 1089 (1990). The plain error standard is less exacting in the sentencing context than it in the trial context. United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994).

B. The District Court Had The Authority To Depart Downward Under U.S.S.G. § 5K2.0 For Mr. xxxxxxx's Minimal Role In The Offense

Urging the district court to reduce Mr. xxxxxxx's sentence based upon his minimal role in the distribution, defense counsel directed the court to U.S.S.G. § 3B1.2 and also requested that the district court depart downward. (A. 149). A downward departure, however, can only come about through application of the guidelines in Chapter Five. Because the district court did not realize that it had the authority to depart under U.S.S.G. § 5K2.0 for Mr. xxxxxxx's minimal role in the offense, the case must be remanded for re-sentencing.

The federal sentencing guidelines direct a sentencing court to arrive at an offense level and then to make various adjustments to that offense level, including altering it for the accused's mitigating or aggravating role in the offense. See U.S.S.G § 1B1.1 (a) through (c). Thereafter, U.S.S.G. § 1B1.1(d) directs the sentencing court to adjust the offense level for acceptance of responsibility, under U.S.S.G. § 3E1.1(b), if warranted, and then ultimately to determine whether any departures under Chapter Five apply. See U.S.S.G. § 1B1.1(i). The nomenclature and structure of the federal sentencing guidelines differentiate between adjustments, under Chapter Three of the guidelines, and departures, under Chapter Five of the guidelines.

In United States v. Olibrices, 979 F.2d 1557 (D.C. Cir. 1992), this Court held that a solo actor could not have his or her offense level adjusted under U.S.S.G. § 3B1.2 for a mitigating role. Notwithstanding that decision, however, the district court could have reduced Mr. xxxxxxx's sentence by departing downward under U.S.S.G. § 5K2.0 based upon his minimal role in the offense. Olibrices involved solely an adjustment for mitigating role under U.S.S.G. § 3B1.2. It did not involve a downward departure for a mitigating role under U.S.S.G. § 5K2.0.

A number of courts have held that even when an adjustment for minimal or minor role in the offense under U.S.S.G. § 3B1.2 is not available to the Court, a downward departure for mitigating role in the offense is available under U.S.S.G. § 5K2.0. United States v. Valdez-Gonzalez, 957 F.2d 643, 648-649 (9th Cir. 1992) (approving of use of downward departures for "mules" under U.S.S.G. § 5K2.0). See also United States v. Webster, 996 F.2d 209, 212 (9th Cir. 1993) (amended guidelines permit sentencing court to consider "collateral conduct beyond the charged offense"), citing United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir. 1991), cert. denied, 502 U.S. 1061 (1992); United States v. Speenburgh, 990 F.2d 72, 76 (2d Cir. 1993) ("The authority for an adjustment does not inevitably carry the negative implication that facts that fail to qualify for the adjustment are ineligible for a departure."); United States v. Bierley, 922 F.2d 1061, 1065 (3rd Cir. 1990) (departure under U.S.S.G. § 5K2.0 available for mitigating role, even when downward adjustment under U.S.S.G. § 3B1.2 is not); United States v. Patillo, 817 F.Supp. 839 (C.D. Cal. 1993).

This case is also distinguishable from Olibrices because Olibrices involved an accused who had already received a benefit by virtue of the plea offer extended by the government. Accordingly, this Court ruled that his less involved role in the conspiracy had already been taken into consideration and no further reduction for mitigating role was warranted under U.S.S.G. § 3B1.2. 979 F.2d at 1560. In Mr. xxxxxxx's case, however, he did not receive any benefit or acknowledgement of his mitigating role by virtue of a plea agreement with the government. Under U.S.S.G. § 5K2.0, therefore, a downward departure for his mitigating role was warranted. See United States v. Demers, 13 F.3d 1381, 1384 (9th Cir. 1994) (Amendment 345 to the Sentencing Guidelines makes clear that where the accused has already received a benefit by virtue of being convicted of an offense less serious than that constituted by his conduct, a mitigating role departure may not be warranted, although there is no "per se rule barring a defendant who pleads guilty to a lesser offense from receiving a downward adjustment where his base offense level does not account for the greater charged offense"). Because the district court did not recognize its authority to depart in Mr. xxxxxxx's case, the case must be remanded for re-sentencing.

CONCLUSION

For each of the foregoing reasons individually, and for the foregoing reasons in aggregate, Mr. xxxxxxx's conviction should be reversed and his case remanded for a new trial and for re-sentencing.

Respectfully submitted,

Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Michael xxxxxxx

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATION OF BRIEF LENGTH

Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 12,500 words.

Santha Sonenberg

CERTIFICATE OF SERVICE

This is to certify that on this 24th day of July, 1995, two copies of the foregoing Brief for Appellant were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand-delivery. On July 25, 1995 (after some missing pages have been retrieved from the District Court jacket), one copy of the Appendix for Appellant will be served by hand upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001.

Santha Sonenberg

C. Even If Evidence Of Mr. xxxxxxx's Custodial Status Was Not Inherently Prejudicial, There Was Actual Prejudice To Mr. xxxxxxx

Even if this Court finds that it was not inherently prejudicial for Mr. xxxxxxx to be tried in prison clothing, and for the jury to learn of his pre-trial incarceration, there was actual prejudice to Mr. xxxxxxx based upon his defense at trial.

There was prejudice inherent in Mr. xxxxxxx appearing before the jury for three continuous days dressed in prison garb and in the government adducing testimony to establish that he was incarcerated prior to and during trial.

Estelle involved an accused, like Mr. xxxxxxx, who was incarcerated pending his trial. When he asked an officer at the jail for his civilian clothes to wear at his trial, the officer refused to give Mr. Williams those clothes and therefore he had to wear his prison garb before the jury at his trial. The Supreme Court ruled that "compelling an accused to wear jail clothing furthers no essential state policy" and that it had the potential to "impair" the presumption of innocence. 425 U.S. 504-505.

In Estelle v. Williams, supra,

In Holbrook v. Flynn, supra, the Supreme Court determined that the presence of identifiable security officers in the court room was not inherently prejudicial based upon "the wider range of inferences that a juror might reasonably draw from the officer's presence." 475 U.S. at 469. It commented that "[j]urors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence." Id.

The only tangible evidence the government introduced which was identifiable as Mr. xxxxxxx's was a wallet, which the defense stipulated was his (9/8/94 Tr. at 118), but there was no evidence to suggest that either the wallet (Government's Exhibit 14) or any of three address books (Government's Exhibits 15, 16, and 17) had come from the tote bag. (9/8/94 Tr. at 110-123) To the contrary, during the government's rebuttal case, Detective Ronnie Hairston testified that the three address books and the wallet were seized from Mr. xxxxxxx after his arrest. (9/9/94 Tr. at 143).

In United States v. Simpson, 992 F.2d 1224 (D.C. Cir. 1993), this Court found plain error where the prosecutor cross-examined the accused about a prior arrest for dilaudid after the accused had denied knowing how dilaudid was packaged generally. This Court found that the "error was plain in the sense of being obvious" because FED.R.EVID. 404(b) barred cross-examination on prior bad acts unless they were relevant to one of the enumerated exceptions. Id. at 1228. This Court ruled that, in violation of Rule 404(b), the question the prosecutor asked the accused on cross-examination had no purpose other than to "demonstrate [the accused's] criminal propensities." Id. at 1229. Moreover, this Court found "the right affected by the District Court's failure to intercede . . . was substantial" based upon the nature of the accused's defense, i.e., that he never possessed the drugs at issue but was "'framed'" by the police. Id. at 1229.

As in Simpson, in Mr. xxxxxxx's case the error was also plain or obvious. The Supreme Court had already recognized in Estelle that when the accused appears before a jury for trial in prison garb, the presumption of innocence is diluted. Thus, the error of Mr. xxxxxxx appearing before his jury throughout the trial in a blue jumpsuit was readily apparent. Further, as in Simpson,