ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. xxxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxx, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________



BRIEF FOR APPELLANT



_________________________________________________________________









A.J. Kramer

Federal Public Defender



*Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



*Counsel for oral argument









District Court

Cr. No. xx-140

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant, *, hereby states as follows:

A. Parties and Amici:

The parties below were defendant xxxxxxxx, co-defendant xxxxxxxx, and the United States of America. The parties to this appeal are defendant-appellant Kevin A. xxxxxxx and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal from the judgment of the district court (the Honorable Stanley Sporkin), dated November 2, 1995, (1) adjudging appellant guilty after a jury trial on the charge of distribution of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C). In this appeal, appellant seeks review of the district court's ruling made on October 22, 1993, admitting evidence of the exact nature of appellant's previous conviction -- possession with intent to distribute cocaine -- in support of a felon-in-possession charge.

C. Related Cases:

Co-defendant Ronald xxxxxxx submitted briefs in 94-3027. On June 1, 1995, this Court affirmed Ronald xxxxxxx' conviction in an unpublished decision.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii



STATUTES AND RULES 1



JURISDICTION 1



ISSUE PRESENTED 1



STATEMENT OF THE CASE 2



A. Proceedings Below 2



B. Statement Of Facts 4



i. The Evidence In Support of Count Two:

Distribution of Cocaine Base on

March 11, 1993 4



ii. The Defense Evidence 8



iii. The Evidence of Mr. xxxxxxx' Prior

Conviction For Possession With Intent

To Distribute Cocaine 10



SUMMARY OF ARGUMENT 16



ARGUMENT 16



THE TRIAL COURT PLAINLY ERRED IN MR. xxxxxxx' TRIAL ON FELON-IN-POSSESSION AND COCAINE TRAFFICKING CHARGES BY TELLING THE JURY THAT MR. xxxxxxx PREVIOUSLY HAD BEEN CONVICTED OF A COCAINE TRAFFICKING OFFENSE, AND BY ALLOWING THE PROSECUTOR TO INTRODUCE EVIDENCE TO THAT EFFECT AND THAT MR. xxxxxxx WAS INCARCERATED FOR HIS PRIOR COCAINE

OFFENSE 16



A. Standard of Review 16



B. The Danger Of Undue Prejudice Was Manifest 17



C. The Court's Failure to Protect Mr. xxxxxxx

From The Prejudice of Joinder of The

Ex-Felon Charge With The Charge For Which

He Was Convicted Was Plainly Erroneous 25



D. Conclusion 27



CERTIFICATE OF LENGTH 29



CERTIFICATE OF SERVICE 29

TABLE OF AUTHORITIES



CASES



Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) 26



Panzavecchia v. Wainwright,

658 F.2d 337 (5th Cir. 1981) 24



United States v. Barker,

1 F.3d 957 (9th Cir. 1993),

on reh'g, 20 F.3d 365 (9th Cir. 1994) 21



United States v. Blankenship,

870 F.2d 326 (6th Cir. 1988),

cert. denied, 489 U.S. 1068 (1989) 23



*United States v. Daniels,

770 F.2d 1111 (D.C. Cir. 1985) passim



*United States v. Dockery,

955 F.2d 50 (D.C. Cir. 1992) passim



United States v. Fennell,

53 F.3d 1296 (D.C. Cir. 1995) 17, 24



United States v. Foutz,

540 F.2d 733 (4th Cir. 1976) 24



United States v. Gilliam,

994 F.2d 97 (2d Cir.),

cert. denied, 114 S. Ct. 335 (1993) 20, 21



United States v. (Clarence) Jones,

16 F.3d 487 (2d Cir. 1994) 22



*United States v. (Keith) Jones,

67 F.3d 320 (D.C. Cir. 1995) passim



United States v. Leonard,

494 F.2d 955 (D.C. Cir. 1974) 25



*United States v. Melvin,

27 F.3d 703 (1st Cir. 1994) 20, 21





____________________________

*Authorities principally relied upon are marked with an asterisk.



United States v. Olano,

113 S. Ct. 1770 (1993) 25



United States v. Poore,

594 F.2d 39 (4th Cir. 1979) 22, 24



United States v. Sands,

899 F.2d 912 (10th Cir. 1990) 23



United States v. Tavares,

21 F.3d 1 (1st Cir. 1994) (en banc) 21, 22



United States v. Valentine,

706 F.2d 282 (10th Cir. 1983) 24





STATUTES AND RULES



18 U.S.C. 922(g)(1) 2, 20, 21, 24



21 U.S.C. 841(a)(1) 2



21 U.S.C. 841(b)(1)(C) 2



FED. R. EVID. 401 21



FED. R. EVID. 403 19





































____________________________

*Authorities principally relied upon are marked with an asterisk.



FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________



No. 96-3002



_________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



KEVIN A. xxxxxxx, Defendant-Appellant.



_____________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________



BRIEF FOR DEFENDANT-APPELLANT

KEVIN A. xxxxxxx

_____________________________________________





STATUTES AND RULES



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

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231. A timely notice of appeal having been filed within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUE PRESENTED

Whether in Mr. xxxxxxx' trial on felon-in-possession and cocaine trafficking charges the trial court plainly erred by telling the jury that Mr. xxxxxxx previously had been convicted of a cocaine trafficking offense, by allowing the prosecutor to introduce evidence that the prior conviction was for cocaine trafficking, by allowing the prosecutor to introduce evidence that Mr. xxxxxxx was incarcerated for the prior conviction, and by failing to caution the jury not to use the prior conviction as proof of Mr. xxxxxxx' guilt of the cocaine trafficking charges in this case.

STATEMENT OF THE CASE

A. Proceedings Below

On April 8, 1993, a grand jury returned an indictment against Ronald xxxxxxx and Kevin xxxxxxx. Kevin xxxxxxx was charged in seven counts of the eight-count indictment. Kevin xxxxxxx was charged with the following offenses:

Count Two: distribution of cocaine base on March 11, 1993, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(C), and 18 U.S.C. 2;



maintaining a crack house, in violation of 21 U.S.C. 856(a)(2) and 18 U.S.C. 2; (2)



Count Three: possession with intent to distribute a controlled substance, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B)(iii) and 18 U.S.C. 2;



Count Four: possession with intent to distribute a controlled substance within 1,000 feet of a school, in violation of 21 U.S.C. 860(a);



Count Five: use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. 924(c)(1);



Count Six: possession of a firearm with an obliterated serial number in violation of 18 U.S.C. 922(k); and



Count Seven: felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). (3)

Mr. xxxxxxx' case was heard by a jury commencing on October 18, 1993, before the Honorable Stanley Sporkin. On October 28, 1993, the jury returned its verdicts. The jury found Kevin xxxxxxx guilty of Count Two charging distribution of cocaine base on March 11, 1993, not guilty of Count Five charging using a firearm during and in relation to a drug trafficking offense, and not guilty of Count Six charging possession of a firearm with an obliterated serial number. The jury failed to reach verdicts on Count Three charging possession with intent to distribute cocaine base, Count Four charging possession with intent to distribute cocaine base within 1,000 feet of a school, and Count Seven charging felon in possession of a firearm. (4)

On April 28, 1994, Mr. xxxxxxx was sentenced to 103 months imprisonment to be followed by three years supervised release (A. at 30). After the judgment was reissued (see n.1, supra), Mr. xxxxxxx filed a timely notice of appeal (A. at 47).

B. Statement Of Facts

i. The Evidence In Support Of Count Two: Distribution Of Cocaine Base on March 11, 1993

On the afternoon of March 11, 1993, an undercover officer, Derrick Wallace, went to the apartment building at 1736 H Street, N.E., to purchase crack cocaine (10/19/93 at 73, 75). (5) The building was divided into two apartments: Apartment A on the first floor and Apartment B on the second floor (10/19/93 at 64). When Officer Wallace entered the building he saw two men and a male adolescent standing in the hallway (10/19/93 at 75-76). Wallace recognized one of the men as Ronald xxxxxxx, from whom he had purchased crack cocaine the day before. (6) He did not recognize the second man or the juvenile.

Officer Wallace told Ronald xxxxxxx that he wished to purchase a "twenty" rock of crack cocaine and gave Ronald xxxxxxx a twenty dollar bill, the serial number of which he had recorded (10/19/93 at 74; 10/20/93 at 11). Ronald xxxxxxx took the money and said, "Okay," but then, according to Wallace, the second man intervened saying, "I got him, Ronald. I got him. Good, I got him" (10/19/93 at 74). According to Wallace, Ronald xxxxxxx stood by as the second man and the juvenile then argued about who would sell crack to the officer (10/19/93 at 79). The juvenile displayed a bag filled with ziplocks of crack cocaine but Wallace bought the one ziplock that the second man had in his hand (10/19/93 at 74-75, 79, 121). Ronald xxxxxxx gave Wallace's twenty dollar bill to that man (10/19/93 at 79). The entire transaction took less than one minute (10/19/93 at 80).

Based on his observations in the hallway, Wallace broadcast a lookout for Ronald xxxxxxx, the second man, and the juvenile (id.). The lookout for the second man was as follows: black male, 25 years old, 5'8", 200 pounds, medium complexion, wearing black jean pants and a black sweat shirt (10/19/93 at 81; Government's Exhibit 7).

As soon as the arrest team heard the broadcast of the lookout, they entered the building to execute the search warrant and to arrest the three people described in the lookout (10/20/93 at 37). The police battered down the door of the downstairs apartment when they received no response to their knock (10/20/93 at 40). Two of the officers saw a person who they identified at trial as Kevin xxxxxxx running from the living room area to the bedroom and that he was found on the bed (10/20/93 at 40-41, 156). At least five other people were in the bedroom -- Vasco Wells, Allen Prather, Thomasine LeSane, Keith Jenkins, and Pamela Russell -- and at least three of them also were on the bed (10/20/93 at 129, 132, 145, 147, 152, 216). Kevin xxxxxxx was the only person wearing black jeans and a black shirt (10/21/93am at 51).

Kevin xxxxxxx and a juvenile who said his name was Michael Bell (7) were arrested in the downstairs apartment (10/20/93 at 10, 131). (8) Ronald xxxxxxx was arrested in the upstairs apartment (10/20/93 at 131; 10/21/93pm at 5). Each of the men was brought outside for Officer Wallace to identify in a ride-by identification procedure. He did so. (10/19/93 at 82-83; 10/20/93 at 8). Wallace also identified Kevin xxxxxxx at trial as the second man who sold him the crack cocaine on March 11, 1993 (10/29/93 at 104-105). Along with other contraband, the officers found under the mattress in the downstairs bedroom the twenty dollar bill that Office Wallace had used to make his purchase (10/20/93 at 60, 217).

The government called as a witness Kevin xxxxxxx' sister, Sharon Reed, to provide background information about the use of the upstairs and downstairs apartments at 1736 H Street, N.E. Kevin xxxxxxx and his family previously had lived in the upstairs apartment (10/20/93 at 71-72, 89). Even after they moved to another neighborhood (a few months before the arrests), leaving the upstairs apartment to their uncle, they continued to frequent the building regularly. Sharon Reed visited the downstairs apartment often for "drinking, talking and cooking" with friends and family, (9) and Kevin xxxxxxx used the upstairs apartment as his business address (10/20/93 at 71-72, 89-90). The upstairs apartment did not have a telephone (10/20/93 at 75). Ms. Reed testified that Kevin xxxxxxx came to the downstairs apartment everyday "just to use the phone, because he don't drink like we do" (10/20/93 at 73).

Sharon Reed testified that on March 11, 1993, she had an appointment at a beauty salon that would have interfered with meeting her youngest son when he was released from school (10/20/93 at 83). She left her older son, Dameon Nightingale, at 1736 H Street with the instructions that he should wait there for his younger brother to arrive from school (id.). After dropping Dameon off, she left the building at about 3:25 or 3:30 p.m. (10/20/93 at 81). As she was walking out the door, Kevin xxxxxxx was walking in (10/20/93 at 91). Ms. Reed said, "What's up, Fats," to which Kevin xxxxxxx responded, "Ain't nothing. Going in here to use the phone" (id.). Thomasine LeSane was coming in the door right behind Kevin xxxxxxx and went into the downstairs apartment with him (10/20/93 as 91, 94). Ms. Reed continued on her way, and by the time she got across the street she saw the police descending on the building (10/20/93 at 92, 94). (10)

ii. The Defense Evidence

Mr. xxxxxxx raised a defense of misidentification, calling four witnesses. Thomasine LeSane testified that she set out for work at about 3:00 on the afternoon of March 11, 1993. As she walked down H Street, N.E., she saw Kevin xxxxxxx standing in front of 1736 H Street (10/22/93 at 234). She asked Kevin xxxxxxx if he could give her a ride to work in his car (10/22/93 at 235). Mr. xxxxxxx agreed, but told her that he needed to make a telephone call first (id.). Ms. LeSane followed him into the downstairs apartment of 1736 H Street and into the kitchen (10/22/93 at 235-236). As she stood in the kitchen waiting for Mr. xxxxxxx to finish his telephone conversation, she looked into the bedroom beside the kitchen and noticed a man, "Bo," and a woman on the bed (10/22/93 at 237). (11) She saw Dameon Nightingale, "Michael Bell," and a tall man in the living room (10/22/93 at 255). She heard pounding at the door, and then the police broke the door down (10/22/93 at 236). The people who had been in the living room ran toward the kitchen and bedroom (id.). The police pushed Ms. LeSane and Kevin xxxxxxx toward the bedroom (id.). (12)

Dameon Nightingale testified that on March 11, 1993, his mother, Sharon Reed, dropped him off at 1736 H Street at about 3:00 p.m. to wait for his younger brother to get out of school since his mother had to do something else that afternoon (10/22/93 at 127-129). Dameon ran into his friend "Michael Bell" who was heading into the downstairs apartment, so Dameon decided to wait there (10/22/93 at 189). There were four people in the living room: Dameon Nightingale, Michael Bell, "Boon," and Keith Jenkins (10/22/93 at 129-130). Dameon, Boon and Keith Jenkins watched videos on television while Michael Bell packaged drugs at the coffee table (10/22/93 at 135-136). (13) Michael Bell's gun was on the table next to where he was packaging his drugs (10/22/93 at 152). Kevin xxxxxxx came into the apartment with a woman following behind him (10/22/93 at 141). Kevin xxxxxxx and the woman went directly to the kitchen where Kevin used the telephone while the woman stood next to him (10/22/93 at 142). Three to five minutes after Kevin xxxxxxx came in to use the telephone, the police began battering down the door (id.). The four males who had been in the living room ran into the kitchen (10/22/93 at 139). The police made the four men sit on the kitchen floor, and made Kevin xxxxxxx and the woman go into the bedroom (10/22/93 at 151). After the police raid, Dameon noticed another woman in the apartment who he had not previously seen (10/22/93 at 179-180).

Sharon Reed also testified in the defense case, essentially repeating the testimony she had given in the government's case (10/25/93 at 5-13). A woman from a neighboring apartment building testified that on March 11, 1993, Mr. xxxxxxx arrived at her home at 2:15 p.m. and stayed until 3:05 p.m. (10/25/93 at 25).

iii. The Evidence Of Mr. xxxxxxx' Prior Conviction For Possession With Intent To Distribute Cocaine

The jury heard on 10 occasions that Mr. xxxxxxx previously had been convicted of crime. Worse, the jury was told 5 times the specific nature of the prior felony conviction: possession with intent to distribute cocaine. In addition, the trial judge admitted into evidence a certified copy of Mr. xxxxxxx' prior conviction and gave the jury a written copy of the instructions reiterating the prior cocaine conviction for its use in the jury room (A. at 40).

In his preliminary instructions to the jury, the court read and then briefly summarized the indictment to the jury (10/19/93 at 15-16) (emphasis supplied):

Count Seven, which is the last one, states that within the District of Columbia, Kevin xxxxxxx, having been convicted of a crime punishable by imprisonment, for a term exceeding one year, that is possession with the intent to distribute cocaine, in the D.C. Superior Court, Criminal Case Number F-13-137-88, did unlawfully and knowingly receive and possess a firearm -- that is a nine millimeter Glock semi-automatic handgun, 41 Magnum revolver, and a shotgun -- which had been

possessed, shipped, and transported in interstate commerce.



So, that charges that having been convicted of a crime, he did unlawfully and knowingly receive and possess firearms.

Next, in her opening statement the prosecutor promised the jury that she would prove that Mr. xxxxxxx was an ex-felon who had been convicted of possession with intent to distribute cocaine (10/19/93 at 33-34) (emphasis supplied):

And the last count of the indictment is that Kevin xxxxxxx was a convicted felon, and that he possessed firearms after that conviction.



The government has to prove three elements beyond a reasonable doubt. One is that Kevin xxxxxxx possessed the firearm, either actually or constructively, and he's charged with the three firearms, again; the Glock, the shotgun, and the revolver.



Two, that any other one of those weapons had traveled or been transported in interstate commerce.



And third, that he had been convicted of a crime, which is punishable by more than one year, which is a felony. And the government will show that, through a certified conviction, that he was convicted in Case Number F13137-88, of possession with intent to distribute crack cocaine, in the Superior Court of the District of Columbia, before March 11, 1993.

The prosecutor moved the trial court to admit into evidence a Judgment and Commitment Order that indicated that Mr. xxxxxxx had been convicted of possession with intent to distribute cocaine (10/22/93 at 113-114; A. at 40) (emphasis supplied):

The Court: All right. Anything further from the government?



Prosecutor: Yes, Your Honor. The government moves into evidence Government's Exhibit No. 28 which is the Defendant Kevin xxxxxxx' certified conviction from D.C. Superior Court, Case No. F13137-88, and it indicates that the defendant was convicted on March 7, 1989 of possession with intent to distribute cocaine.

The Judgment and Commitment Order not only indicated that Mr. xxxxxxx had been convicted of possession with intent to distribute cocaine, but that the judge in that case sentenced him to 20 months to 5 years imprisonment.

None of the parties -- not the judge, the prosecutor, nor the defense lawyer -- indicated any awareness of the need to protect a defendant from undue prejudice when an ex-felon charge is joined with other charges. Mr. xxxxxxx' lawyer failed to lodge a single objection (10/22/93 at 114). Apparently unaware that he could request measures to ameliorate the prejudice, Mr. xxxxxxx' lawyer tried to make the best of a very bad situation by putting a positive spin on the evidence in his opening statement and his closing argument (10/19/93 at 45; 10/25/93 at 98):

[Opening]:

Now, you've heard, in the government's opening statement, references to Mr. Kevin xxxxxxx' past. Mr. xxxxxxx does not deny his past. The evidence will show he will not deny his past. The evidence will show that in those cases, there were two prior cases, some years back, where he actually entered pleas of guilty.



But in this case, he has entered a plea of not guilty. And the government is going to be put to its proof.



* * *



[Closing]

Now, one of these charges requires that the government establish that Mr. xxxxxxx had a prior conviction, and they've offered Government's Exhibit No. 28. Mr. Kevin xxxxxxx does not deny the facts and circumstances of the conviction. But I want you to note one thing, ladies and gentlemen. When you look at this document, it says that Mr. xxxxxxx pled guilty. He pled guilty because he was guilty. This time he has pled not guilty, and he has demanded his right to a trial. There is a box here that says the above named defendant having entered a plea of guilty.

The prosecutor answered that argument in her rebuttal (10/25/93 at 119-120):

Now, Kevin xxxxxxx' attorney comes up here and says, look at this, he pled guilty in another case, and, therefore, he must be innocent, because he's going to trial in this case. Now, I would submit to you that you as jurors should use your common sense. You don't know anything about that case, and furthermore, how many people who don't even have convictions go to trial and after all the evidence is shown, a jury comes back and convicts them? So that fact of what happened, that trial and what his plea was has nothing to do with this case, other than to show you that he was previously convicted of a felony offense.

The trial court repeated that Mr. xxxxxxx previously had been convicted in Superior Court of a felony offense in its instructions to the jury (10/25/93 at 162-164) (emphasis supplied):

Now, Count VII of the indictment charges that on or about March 11, 1993, within the District of Columbia, the defendant, Kevin A. xxxxxxx, having been convicted of a crime punishable by imprisonment for a term exceeding one year in D.C. Superior Court did unlawfully and knowingly receive and possess firearms, which is a 9 millimeter Glock semi-automatic gun, a .41 magnum revolver and a shotgun which were possessed, shipped and transported in Interstate Commerce.

. . . The essential elements of this offense, each of which the government must prove beyond a reasonable doubt are: that the defendant knowingly possessed a firearm; 2) that the firearm had traveled or been transported in Interstate Commerce at some point; 3) that the defendant had previously committed an offense for which the punishment was more than one year.

. . . Again, you only have to find that Kevin xxxxxxx possessed one of the three guns to convict on this charge, plus the other elements. It had to be knowingly and intentionally and it had to have been in Interstate Commerce and that there had to be a prior offense.



* * *



The government may meet its burden of proving a connection between Interstate Commerce and possession of a firearm by a person previously convicted of an offense punishable by more than one year in prison if it has demonstrated the firearm possessed by the person previously traveled in Interstate Commerce.



* * *



It is necessary only that the government prove the defendant having been convicted of a felony knowingly possessed the firearm, that it had at some time previously traveled in Interstate Commerce. The defendant's possession of the firearm may be actual or constructive. The government need not prove the defendant was actually sentenced to more than one year imprisonment for the prior offense, only that the prior offense was punishable by more than one year in prison.

In addition, the trial court provided the jury with a written copy of the instructions reiterating that Mr. xxxxxxx' previously had been convicted in Superior Court (10/28/93 at 3, 14).

Finally, when the jurors asked for a redefinition of "possession" with respect to Count VII (felon-in-possession of a firearm), the trial court re-read to them the count of the indictment charging Mr. xxxxxxx with felon-in-possession and directed them to the Judgment and Commitment Order proving Mr. xxxxxxx' ex-felon status (10/28/93 at 5-6, 11) (emphasis supplied):

Well, now Count 7 -- let me see if I've got it here. Now Count 7 says that:



"On or about March 11, 1993, within the District of Columbia, Kevin xxxxxxx having been convicted or a crime punishable by imprisonment for a term exceeding one year, that is possession with intent to distribute cocaine, in D.C. Superior Court Criminal Case . . . did unlawfully and knowingly receive and possess firearms, that is, a 9 mm Glock semi-automatic handgun, .41 magnum revolver and a shotgun which had been possessed, shipped and transported in and effecting interstate and foreign commerce.

So the point there is that the -- the elements there, as I recall, were the fact of the earlier conviction in Superior Court which was a document which is before you as exhibit --

What is that exhibit, Betty?

Jury Foreperson: It's the definition of "possession."

The jury was unable to reach a verdict on the felon-in-possession of a firearm charge, and on the possession with intent to distribute cocaine and possession with intent to distribute cocaine within 1,000 feet of a school charges. The jury found Mr. xxxxxxx not guilty of using and carrying a firearm during and in relation to a drug trafficking offense and not guilty of possession of a firearm with an obliterated serial number. The jury convicted Mr. xxxxxxx of distribution of cocaine base.

SUMMARY OF ARGUMENT

The trial court failed to take any precautions in its management of Mr. xxxxxxx' joint trial involving a felon-in-possession of a firearm charge and cocaine trafficking charges. The repeated references by the trial court and the prosecutor to Mr. xxxxxxx' prior conviction for possession with intent to distribute cocaine prejudiced Mr. xxxxxxx as to the charge for which he was convicted here: distribution of cocaine. Moreover, the trial court failed to caution the jury not to use the evidence of the prior conviction as proof of Mr. xxxxxxx' guilt on the cocaine distribution charged in this case. The trial court's mishandling of the felon-in-possession count constitutes plain error.

ARGUMENT

THE TRIAL COURT PLAINLY ERRED IN MR. xxxxxxx' TRIAL ON FELON-IN-POSSESSION AND COCAINE TRAFFICKING CHARGES BY TELLING THE JURY THAT MR. xxxxxxx PREVIOUSLY HAD BEEN CONVICTED OF A COCAINE TRAFFICKING OFFENSE, AND BY ALLOWING THE PROSECUTOR TO INTRODUCE EVIDENCE TO THAT EFFECT AND THAT MR. xxxxxxx WAS INCARCERATED FOR HIS PRIOR COCAINE OFFENSE.



A. Standard of Review

This Court reviews the trial court's management of a joint trial involving a felon-in-possession count together with other counts for an abuse of discretion. United States v. Dockery, 955 F.2d 50, 52 (D.C. Cir. 1992). Because Mr. xxxxxxx' trial counsel did not object to any of the references by the prosecutor or the judge to the felony conviction and then failed to request a cautionary instruction, this issue is reviewed for plain error. See United States v. Jones, 67 F.3d 320 (D.C. Cir. 1995) (plain error review where defense counsel did not object to trial court informing jury of nature of appellant's prior conviction in preliminary and final instructions); United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995) (plain error review where defense counsel did not object to references by trial court and prosecutor to prior felony indictment).

B. The Danger Of Undue Prejudice Was Manifest.

First in 1985 and again in 1992, this Court made clear that when an ex-felon charge is jointly tried with other charges, the trial court must proceed with the "utmost care" in order to protect the defendant from prejudice resulting from the introduction of what would otherwise be inadmissible prior crimes evidence. United States v. Dockery, 955 F.2d 50, 53 (D.C. Cir. 1992); United States v. Daniels, 770 F.2d 111, 118 (D.C. Cir. 1985). This standard is based upon the Court's awareness that evidence of the defendant's felony conviction is highly prejudicial and can infect the jury's consideration of the other charges in the indictment. "The exclusion of other crimes evidence is not simply a `technicality' designed to prevent law enforcement personnel from doing their jobs. It reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence." 955 F.2d at 53 (quoting Daniels, 770 F.2d at 1118).

In the instant case, the trial court took none of the precautionary measures recommended by this Court in Dockery (14) and in Daniels, (15) and the amount and type of ex-felon evidence presented here was far more prejudicial than in those cases. Here, the jury was told that Mr. xxxxxxx previously had been convicted of a felony, it was told that the prior conviction had warranted a substantial period of incarceration, it was told the exact nature of the prior crime, the prior crime was of the same type as the offense for which Mr. xxxxxxx ultimately was convicted (cocaine trafficking), the prosecutor and judge repeatedly reminded the jury of the prior conviction from the first to the last moments of the trial, and the judge did not instruct the jury not to use the prior crime as evidence of Mr. xxxxxxx' guilt of the cocaine distribution charged in this case. Under these circumstances, the prejudicial nature of the prior conviction is clear and compelling. FED. R. EVID. 403; United States v. Jones, 67 F.3d 320 (D.C. Cir. 1995).

United States v. Jones, supra, recently decided by this Court, presented almost identical facts: In a joint trial on felon in possession of a firearm and possession with intent to distribute cocaine base charges, the jury was told that the defendant previously had been convicted of a felony, it was told the exact nature of the prior crime, the prior crime was of the same type as the offense for which the defendant ultimately was convicted (cocaine trafficking), and the prosecutor and judge reminded the jury of the prior conviction five times during the trial. Id. at 322. However, in Jones, the jury was instructed not to consider the prior offense as evidence of the defendant's guilt of the cocaine charges, id., and the jury apparently was not told what penalty the defendant received for his prior conviction. This Court found that "the danger of undue prejudice by allowing the government to introduce evidence regarding the nature of Jones' prior felony conviction was manifest in view of the virtually identical charges in the indictment." Id. at 324. (emphasis supplied). Although the judge had limited the jury's use of the evidence, the judge and the prosecutor "proceeded with insufficient caution" to protect the defendant from undue prejudice. Id.

The danger of unfair prejudice was even greater in Mr. xxxxxxx case than in the Jones case, where at least the court instructed the jury not to use the prior conviction as evidence of the defendant's propensity to deal cocaine and where there was no evidence that the defendant had been incarcerated for his prior conviction. Based on Dockery, on Daniels, and now on Jones, Mr. xxxxxxx' conviction must be reversed.

First, the jurors not only learned that Mr. xxxxxxx was an ex-felon, they learned the exact nature of Mr. xxxxxxx' prior conviction -- possession with intent to distribute cocaine. Evidence of the specific nature of the prior crime can serve only one purpose: to prejudice the defendant by causing the jurors to perceive the defendant as a criminal personality predisposed to commit such crimes. "[E]vidence regarding the nature of the prior felony is precisely the type of evidence which prejudices a jury." United States v. Melvin, 27 F.3d 703, 707 (1st Cir. 1994) (emphasis supplied); United States v. Gilliam, 994 F.2d 97, 103 (2d Cir. 1993) (the underlying facts of the prior conviction are "far more prejudicial than probative"), cert. denied, 114 S. Ct. 335 (1993).

The risk of prejudice to which Mr. xxxxxxx was exposed is especially intolerable because it was utterly without justification. Evidence of the specific felony involved is not even relevant to a felon-in-possession charge which requires proof only that the person have been convicted of an offense "punishable for a term exceeding one year." 18 U.S.C. 922(g)(1); Jones, 67 F.3d at 323 ("The predicate crime is significant only to demonstrate status, and a full picture of that offense is -- even if not prejudicial -- beside the point.") (quoting United States v. Tavares, 21 F.3d 1, 4 (1st Cir. 1994) (en banc); Gilliam, 994 F.2d at 103 ("The jury has no need to know the nature of the prior conviction; all that it needs to know is that there was a prior conviction sufficient to sustain that element of the crime."); United States v. Barker, 1 F.3d 957, 959 n.3 (9th Cir. 1993) ("the underlying facts of the prior conviction are completely irrelevant under 922(g)(1)"), on reh'g, 20 F.3d 365 (9th Cir. 1994). See FED. R. EVID. 401. (16)

Second, the danger of undue prejudice is "manifest," Jones, 67 F.3d at 324, because Mr. xxxxxxx' prior offense (possession with intent to distribute cocaine) was almost exactly the charge for which he stood trial and was convicted (distribution of cocaine base). Id. When a jury learns that a defendant not only committed a felonious crime in the past, but that he committed the same type of crime as that for which he is standing trial, it surely will use the prior conviction in determining the likelihood of his guilt or innocence, especially where it is not instructed otherwise. Jones, supra; Melvin, 27 F.2d at 707 (reversing bank robbery and felon-in-possession convictions because trial court admitted into evidence stipulation specifying defendants' prior firearms convictions); Tavares, 21 F.3d at 6 (reversing felon-in-possession conviction because "[t]he fact that defendant's prior conviction involved the unlawful acquisition of a firearm could not help but influence the jurors' attitude toward his claim that, this time, someone else had the gun"); United States v. Poore, 594 F.2d 39, 41 (4th Cir. 1979) (reversing felon-in-possession conviction where indictment alleged specific nature of prior offense, possession of firearm, because prejudice was "clear").

Third, the repeated reminders of the fact of Mr. xxxxxxx felon status and the nature of his prior felony exacerbated the problem. The jury first heard the exact nature of Mr. xxxxxxx' prior felony when the judge read the indictment in his preliminary instructions. The prosecutor then referred to Mr. xxxxxxx' prior conviction for possession with intent to distribute cocaine in her opening statement and again when she introduced the Judgment and Commitment Order (10/19/93 at 33-34; 10/22/93 at 113-114; ). In the final instructions, the jury was repeatedly reminded that Mr. xxxxxxx was an ex-felon. Finally, the judge hammered home the exact nature of Mr. xxxxxxx' prior felony in response to a note from the jurors (10/29/93 at 15-16; 10/25/93 at 162-164; 10/28/93 at 11). Jones, 67 F.3d at 324 (finding undue prejudice where "the nature of the prior felony was repeatedly brought to the jury's attention by the judge and the prosecutor"); United States v. (Clarence) Jones, 16 F.3d 487, 492-93 (2d Cir. 1994) (conviction reversed where trial court gave limiting instruction on felon-in-possession count in which it mentioned seven times that defendant was convicted felon).

Making matters worse, the trial court also allowed the jurors to learn through the Judgment And Commitment Order that Mr. xxxxxxx had been imprisoned for at least 20 months and perhaps 60 months. The information that Mr. xxxxxxx' prior crime had warranted a lengthy term of incarceration might well have suggested to the jury that he was a threat to society deserving of additional incarceration. See United States v. Sands, 899 F.2d 912 (10th Cir. 1990) (reversing conviction because defendant prejudiced by witnesses' references to fact that defendant had been incarcerated); United States v. Blankenship, 870 F.2d 326, 329 (6th Cir. 1988) (evidence of defendant's prior incarceration prejudicial, but under unique circumstances of case, highly probative), cert. denied, 489 U.S. 1068 (1989).

Finally, the judge offered no instructions cautioning the jury against inferring from Mr. xxxxxxx' prior conviction a propensity to commit crimes or, at the very least, explaining that the evidence was admitted for a limited purpose. Mr. xxxxxxx' jury was left to deliberate without having received any guidance whatsoever concerning how it could consider the information that Mr. xxxxxxx previously had been convicted of possession with intent to distribute cocaine. Without such guidance, the jury was likely to consider Mr. xxxxxxx' prior felony conviction, which but for the joinder of the felon-in-possession count would not have been admissible, as substantive propensity evidence. (17) See United States v. Valentine, 706 F.2d 282, 290 n.7 (10th Cir. 1983) (where court denies severance of felon in possession count, limiting instructions on consideration to be given to prior conviction should be given to assure defendant "fairest trial possible"); Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir. 1981) (if severance of ex-felon count denied, court must utilize limiting instructions to cure prejudicial effect of joint trial).

This Court has indicated that appropriate cautionary instructions are one procedural safeguard the trial court can exercise when a felon-in-possession count is jointly tried with other charges. Fennell, 53 F.3d at 1302 (instructions against using a felony indictment for any purpose other than to establish that element of the 922(g)(1) offense will provide "protection of a defendant's rights in a joint trial of multiple counts") (citing Dockery, 955 F.2d at 55-56); Daniels, 770 F.2d at 1118. Limiting instructions are vital when the jury has learned of the defendant's prior crime because "to the layman's mind a defendant's criminal disposition is logically relevant to his guilt or innocence of a specific crime." Poore, 594 F.2d at 41-42 (quoting United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976)). By failing to caution the jury against inferring criminal propensity from Mr. xxxxxxx' prior felony conviction, the trial court did not exercise its discretion with "sufficiently scrupulous regard" for Mr. xxxxxxx' rights. See Daniels, 770 F.2d at 1118.

C. The Court's Failure To Protect Mr. xxxxxxx From The Prejudice Of Joinder Of The Ex-Felon Charge With The Charge For Which He Was Convicted Was Plainly Erroneous

The trial court's failure to protect Mr. xxxxxxx from unfair prejudice from the evidence of the prior possession with intent to distribute cocaine conviction, and the evidence of the punishment he received, was plainly erroneous. United States v. Olano, 113 S. Ct. 1770 (1993). The errors here were plain in the sense of being obvious, and substantially undermined the fairness of the trial. Id. at 1777.

This Court found these same errors to be plain in Jones:

In light of the then-existing law in this circuit, up to and including Daniels, we . . . also hold that it was plain error for the district court to inform the jury of the nature of the felony conviction when reading the indictment and giving the final instructions.

67 F.3d at 324-325. The error here was even more obvious since at the time of Mr. xxxxxxx' trial the "then-existing law in this circuit" also included Dockery.

The introduction and use of Mr. xxxxxxx' prior possession with intent to distribute cocaine conviction substantially undermined the fairness of the trial. There is no gainsaying that evidence of a prior conviction is tremendously prejudicial. Jones, 67 F.3d at 322 n.6 (jurors "will very naturally believe that a person is guilty of the crime with which he is charged if it is proved to their satisfaction that he has committed a similar offense") (quoting Drew v. United States, 331 F.2d 85, 89-90 (D.C. Cir. 1964)); Dockery, 955 F.2d at 53; Daniels, 770 F.2d at 1118. Here, the evidence of Mr. xxxxxxx' prior possession with intent to distribute cocaine conviction was unduly prejudicial with respect to the similar charges of cocaine base distribution of which the jury convicted him.

The government's evidence of the distribution was by no means overwhelming. Mr. xxxxxxx' defense was that the officer had misidentified him as the seller (10/25/93 at 90-93). The government presented the testimony of its single eyewitness, Officer Wallace, who positively identified Mr. xxxxxxx as the seller. The government's own evidence, however, presented a credibility contest between Officer Wallace and Mr. xxxxxxx' sister, Sharon Reed, whose testimony was inconsistent with Mr. xxxxxxx' presence in the hallway selling drugs in the minutes before the police raid. Ms. Reed and later, the defense witnesses, testified to a sequence of events that would have made it unlikely for Mr. xxxxxxx to have been in the hallway selling drugs to the undercover officer. (18)

The evidence thus presented a close case in which the jury could not believe that both the officer's version of events and Ms. Reed's and the defense witnesses' version of events were accurate. Given the state of the legitimate evidence, the government's poisonous other crimes evidence -- the fact that Mr. xxxxxxx had previously trafficked in cocaine, was convicted of trafficking in cocaine, and was sent to prison for it -- was devastating. Knowledge of that history likely tipped the scales to convince the jurors that Mr. xxxxxxx committed some cocaine offense on March 11, 1993. That knowledge fatally undermined his contention that he had been misidentified as the person who distributed the cocaine base to the officer on March 11, 1993. See Jones, 67 F.3d at 325 (where "there was still room for Jones' defense that he was only a casual user[,]" evidence that he previously had been convicted of a similar cocaine trafficking offense "doomed" his defense).

D. Conclusion

Because the trial court plainly erred by failing to take any precautions to guard against undue prejudice from the joint trial of the felon-in-possession and distribution of cocaine charges, and because the admission of the ex-felon evidence substantially undermined the fairness of the trial, Mr. xxxxxxx' conviction must be reversed and a new trial ordered.





Respectfully submitted,



A. J. Kramer

Federal Public Defender



_________________________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Kevin A. xxxxxxx

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant, Kevin A. xxxxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).



_________________________________

Sandra G. Roland





CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 25th day of January, 1996.



___________________________________

Sandra G. Roland



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. 96-3002

_________________________________________________________________





APPENDIX FOR DEFENDANT-APPELLANT

KEVIN A. xxxxxxx



_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



KEVIN A. xxxxxxx, Defendant-Appellant.

_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





_________________________________________________________________





A.J. Kramer

Federal Public Defender



Sandra G. Roland

Assistant Federal Public Defender

Counsel for Kevin A. xxxxxxx

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500













District Court

Cr. No. 93-140

APPENDIX



TABLE OF CONTENTS



DOCKETING SHEET 1



INDICTMENT



RETYPED INDICTMENT



JURY VERDICT FORM



JUDGMENT IN A CRIMINAL CASE (KEVIN xxxxxxx)



JUDGMENT IN A CRIMINAL CASE (RONALD xxxxxxx)



NOTICE OF APPEAL



GOVERNMENT'S EXHIBIT (JUDGMENT AND COMMITMENT/PROBATION ORDER ESTABLISHING MR. xxxxxxx' PRIOR CONVICTION)



EXCERPTS OF TRANSCRIPTS

1. The district court filed the original judgment in this case on May 2, 1994. However, because appellant's counsel failed to file a timely notice of appeal, the court granted on January 19, 1996, appellant's motion pursuant to 28 U.S.C. 2255 to vacate and reimpose his sentence, and issued a new judgment (A. at 41). Appellant filed a timely notice of appeal from that judgment (A. at 47).

2. Immediately prior to trial the government moved to dismiss the count charging both defendants with maintaining a crack house, and the indictment was retyped (10/18/93 at 7-8).

3. Ronald xxxxxxx was charged with (Count One) distribution on March 10, 1993, of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C), with (Count Two) distribution on March 11, 1993, of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C), with maintaining a crack house in violation of 21 U.S.C. 856(a)(2) and 18 U.S.C. 2, with (Count Three) possession with intent to distribute a controlled substance in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B)(iii) and 18 U.S.C. 2, and with (Count Four) possession with intent to distribute a controlled substance within 1,000 feet of a school in violation of 21 U.S.C. 860(a).

4. The district court granted Ronald xxxxxxx' motion for judgment of acquittal on Counts Three and Four charging possession with intent to distribute cocaine base and possession with intent to distribute cocaine base within 1,000 feet of a school (10/22/93 at 123). Ronald xxxxxxx was found guilty of both Count One charging distribution of cocaine base on March 10, 1993, and Count Two charging distribution of cocaine base on March 11, 1993 (A. at 27). Ronald xxxxxxx was sentenced to 5 months imprisonment (A. at 34).

5. "A." citations refer to the Appendix to this brief. Numbers preceded by a month and day (e.g., "10/19/93") reflect pages of the transcript of the trial and sentencing.

6. Co-defendant Ronald xxxxxxx was charged with and convicted of distributing one rock of crack cocaine to Officer Wallace on the previous day, March 10, 1993 (10/20/93 at 185). Officer Wallace testified that on that date Ronald xxxxxxx sold him a twenty dollar rock of crack cocaine from the upstairs apartment (Apartment B) of 1736 H Street, N.E. (10/19/93 at 64-66). Based on this transaction, Officer Wallace obtained a warrant to search 1736 H Street, N.E. (10/19/93 at 73).

7. The juvenile provided a false name to the police. Some of the defense witnesses referred to him by his true name, or by his nickname "Bud" (10/20/93 at 78-79; 10/21/93 at 24). Because the officers identified him as "Michael Bell" in their testimony, appellant has adopted that name for purposes of this brief.

8. Four of the other people in the downstairs apartment also were arrested, but the prosecutions against them were dismissed the following day (10/20/93 at 131, 136).

9. Ms. Reed explained that the downstairs apartment had been leased to a Mr. Foote, who died the week before these arrests (10/20/93 at 73). After Mr. Foote's death, Mr. Foote's friend "Kenny" had custody of the apartment and would leave the apartment door unlocked during the day (10/20/93 at 73-74, 86).

10. There was, of course, lengthy testimony in support of the other six charges on which Mr. xxxxxxx either was acquitted or on which the jury was unable to reach a verdict. Guns, drugs and money were found in the apartment: the officers seized $5,000 in cash and 24 ziplocks of crack cocaine from Michael Bell; from the coffee table in the living room they seized a plate with 87 ziplocks of crack cocaine, a razor blade, and new, unfilled, ziplocks on it; protruding out from under the living room couch next to the coffee table was found a handgun; seventeen ziplocks of crack cocaine were found on the floor behind a table in the living room and one ziplock of crack was found on the kitchen floor; $250 in cash, a shotgun and a handgun were found under the mattress in the bedroom; and, a paper bag containing five rounds of 12 gauge shotgun shells was found in a drawer of the dresser in the bedroom. (10/20/93 at 49-50, 54, 58, 67, 134-135, 148, 158, 165, 217, 221; 10/21/93am at 22, 24, 27, 31, 41). The shotgun found under the mattress bore Kevin xxxxxxx' fingerprints (10/21/93pm at 74). The crack cocaine sold to Officer Wallace on March 10, 1993, and on March 11, 1993, and that which was seized from the apartment all had different levels of purity (10/20/93 at 185, 189, 194, 197).

11. The bedroom and the kitchen are right next to each other: a person literally could stand with one foot in each room (10/22/93 at 248).

12. Ms. LeSane was impeached with her grand jury testimony that Kevin xxxxxxx had stepped into the bedroom to brush his hair before the police pounded on the door (10/22/93 at 246).

13. Dameon Nightingale was impeached with his testimony at the motions hearing that he had not seen any drugs or guns in the downstairs apartment (10/22/93 at 160-161).

14. In the Dockery case, the trial judge excluded all references to the exact crime that the defendant had been convicted of (by redacting the indictment and refusing to allow any testimony or reference to the nature of the prior offense), id. at 51, but failed to adequately protect the defendant principally because it allowed repeated references before the jury to the fact of the defendant's ex-felon status. Id. at 51-52. And, while the court in Dockery did instruct the jury considering the limited evidentiary purpose of the defendant's ex-felon status, it failed to caution the jury against inferring propensity to commit the charged crimes. Id. at 55-56.

15. The district court in Daniels protected the defendant from undue prejudice by excluding any mention of the nature of the offense, by twice instructing the jury concerning the limited evidentiary purpose of the prior conviction, and by ordering the indictment to be redacted to eliminate any reference to the nature of the prior offense. 770 F.2d at 114.

16. Excluding irrelevant information about the exact nature of the crime "should create no burden for either the court or the government." Tavares, 21 F.3d at 4. The fact of a prior conviction can be conveyed to the jury either through a stipulation or by way of a redacted Judgment and Commitment Order. Thus, "[s]evering the admissible evidence from the inadmissible . . . require[s] neither sensitive nor difficult judgments." Id. at 5.

17. The prosecutor exploited this evidence for the very purpose for which it was not admissible -- propensity to commit crimes -- when she argued that "many people who don't even have convictions" are found guilty by juries (10/25/93 at 119-120), suggesting that conviction was even more warranted in a case involving a convicted felon.

18. Given the weakness of the government's evidence that Mr. xxxxxxx possessed the drugs and guns in the apartment, the jury's inability to reach a verdict on those charges is not surprising. The government's evidence supporting the possessory gun and drug charges was almost non-existent: Mr. xxxxxxx was not a resident of the apartment and at least five other people were found in the apartment, at least three of whom were found on the very bed on which Mr. xxxxxxx supposedly was found.