No. 93-3175




xxxxxxx J. xxxxxxx,Defendant-Appellant.








The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal from the final judgment of the district court having been filed on October 4, 1993, this Court has jurisdiction over this appeal under 28 U.S.C. § 1291.


I. Whether the trial court's instruction that the jury must decide if the evidence is "likely to be true" plainly lowered the government's burden of proof below the constitutional minimum.

II. Whether the trial judge erred in allowing the government's "drug expert" to testify that drug dealers commonly throw drugs away in front of police officers where the judge agreed that that information was not beyond the ken of the jurors and the government subsequently used the expert testimony in a way that improperly bolstered its fact witnesses.


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.


A.Nature of the Case, Course of Proceedings, and

 Disposition in the Court Below

On March 11, 1993, a federal grand jury sitting in the District of Columbia returned a one-count indictment charging Mr. xxxxxxx J. xxxxxxx with possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). A. 7. Footnote

A jury trial commenced before the Honorable Harold H. Greene on May 12, 1993. On May 14, 1993, the jury returned a verdict of guilty. On September 24, 1993, Mr. xxxxxxx was sentenced to 120 months imprisonment and eight years of supervised release (A. 18-21). Mr. xxxxxxx filed a timely notice of appeal (A. 22).


B. Statement of Facts

1. The Government's Case.

Sergeant David Sledge of the Sixth District Vice Unit testified that at 9:40 p.m. on February 16, 1993, he was on plainclothes duty Footnote driving an unmarked car westbound toward the unit block of Ridge Road, Southeast, when he noticed Mr. xxxxxxx and two others to his left in a huddle on the sidewalk in front of 39 Ridge Road, at the corner of Ridge Road and B Street (Tr. 129-130, 136, 137, 140). In addition, there were approximately five people in front of the doorway of 39 Ridge Road and an unspecified number of people in front of the doorway of 35 Ridge Road (Tr. 178-179). Sergeant Sledge flashed a high-intensity flashlight out his car window and observed a plastic bag in Mr. xxxxxxx's hand (Tr. 130, 133). At that time, one of the persons standing in the doorway of 39 Ridge Road yelled "5-0" -- street slang for the police (Tr. 291) -- and Mr. xxxxxxx looked up and began walking westbound (in the direction of 35 Ridge Road) (Tr. 130, 136, 160-161). As Sergeant Sledge continued driving parallel to Mr. xxxxxxx, keeping the flashlight trained on him, he observed blue ziplocks inside of the plastic bag in Mr. xxxxxxx's hand (Tr. 130).

At that point, the officer pulled the car over to the left, into the oncoming traffic lane, and began to follow Mr. xxxxxxx on foot, continually shining his flashlight on Mr. xxxxxxx's right hand (Tr. 130, 138, 158). As Sergeant Sledge got within approximately five feet of Mr. xxxxxxx, he saw little rock-like substances inside the blue ziplocks (Tr. 130, 136, 138). At that time, Sledge identified himself as a police officer and told Mr. xxxxxxx to stop (Tr. 130-131, 136). Mr. xxxxxxx spun around and dropped two plastic bags (Tr. 131). Sergeant Sledge retrieved the bags from the ground and told the other officers in his patrol unit to stop Mr. xxxxxxx, at which time Mr. xxxxxxx ran eastbound on Ridge Road until he was stopped at the northwest corner of Ridge Road and B Street (id.). Mr. xxxxxxx was placed under arrest after the rock-like material field-tested positive for cocaine (Tr. 143-144). Footnote

Officer Manuel Gaffney, the driver of a second unmarked car, testified that he stopped his vehicle right behind Sergeant Sledge's car and followed Sergeant Sledge on foot as he approached Mr. xxxxxxx (Tr. 188-189, 192, 196, 197, 202). Officer Gaffney saw Sergeant Sledge flash his flashlight on Mr. xxxxxxx from a distance of about five or six feet, at which time Mr. xxxxxxx spun around and discarded a blue object (Tr. 189). Officer Gaffney and Officer McDonald pursued Mr. xxxxxxx as he ran back toward 39 Ridge Road, but he eluded them and was ultimately stopped by two other officers at B Street (Tr. 189-190).

Officer Steven McDonald testified that he was seated in the right rear passenger seat of the lead vehicle, that by the time he exited the car Mr. xxxxxxx was already running up the street, that he participated in the chase, and that he recovered from Mr. xxxxxxx $569 and a paging device (Tr. 205, 208, 210, 211-212).

Officer Derrick Russell testified that he was seated in the front passenger seat of Sergeant Sledge's vehicle, that he got out of the car and saw Sledge walking toward Mr. xxxxxxx, and that he followed the chase and handcuffed Mr. xxxxxxx after Officer Leach stopped him (Tr. 249-251). Officer Russell did not see Mr. xxxxxxx throw anything to the ground (Tr. 260).

DEA chemist Michael Morley testified that the drugs recovered by Sergeant Sledge weighed 12.557 grams and contained approximately 89% cocaine base (Tr. 267-268).

Before the government's "drug expert," Detective Tyrone Thomas, took the stand, defense counsel moved in limine to limit the expert's testimony to the weight and packaging of the drugs as those factors bore on the intent to distribute. When the prosecutor proffered that she intended to ask "whether it's uncommon in drug cases for a person not to have drugs on their person when they're arrested" (Tr. 276) and "why a person would drop drugs or why a person would leave their drugs when they're being arrested by police officers" (Tr. 277), the following exchange took place (id.) (emphasis supplied):

[Defense Counsel]: See, I think that's beyond -- I mean, obviously the government is going to argue he dropped them to try to get away, but I don't think it's an area for expert testimony.


The Court: I will let him testify. We're not talking about stash. You can ask him if a person is about to be arrested for possession of drugs do they sometimes throw them away.


[Defense Counsel]: I know we always request -- the defense always quibbles over the expert. I don't think that's an appropriate area for him to get into, is it common what people do when they're caught.


The Court: I am going to let him testify to that. I mean, as long as it's not done, you know, on and on. Just ask him a simple question. I suppose everybody knows it anyway, which is your point, I suppose, that we don't need an expert for that. On the other hand, it isn't particularly prejudicial because everybody knows that anyway. So let's go ahead and do it.

Detective Thomas testified that in his expert opinion the 34 $20 ziplock bags and the six loose $50 rocks of crack cocaine recovered by Sergeant Sledge were intended for street distribution (Tr. 288). Footnote Pursuant to the court's in limine ruling, Detective Thomas gave the following additional "expert" testimony (Tr. 292-293):

Q Have you ever witnessed a person getting rid of drugs, throwing drugs in front of you or other officers in making that arrest?


A Yes. That's the most common thing the individual will do. Drug dealers believe that if they don't have the drugs on them they won't be charged, they won't go to jail. And so whenever they see the approaching police officer, the first thing they want to do if they have drugs on them is get rid of it. So they will throw it down, run, just do anything to get rid of the drugs.


Q And is it your experience that they often throw the drugs in front of you?


A Well, it just depends upon the case itself. They will do whatever they can not to have the drugs on them, and it depends upon at what time the police arrive. It doesn't matter. They can -- you can be one foot in front of them and they will try to get rid of them any possible way they can. They do not want drugs on their person when they're arrested.

2. The Defense Case.

Mr. xxxxxxx's wife, Annette Sweeney, testified that between her job as a security guard and his job as a porter at an apartment complex, she and her husband were bringing home approximately $1500 every two weeks at the time he was arrested (Tr. 304-307). She further testified that in 1992 she had purchased pagers for both of them so that their children could reach them without calling their workplaces and annoying their supervisors (Tr. 308). She explained that on the night Mr. xxxxxxx was arrested he left their apartment at about 7:30 or 8:00 p.m. to go to his mother's house (located around the corner from where he was arrested) and to get some money orders (Tr. 309-311, 314). Before he left, she gave him about $700 (from her income tax refund check that she had cashed a few days earlier) to buy money orders to pay medical and utility bills and for furniture on lay-away (Tr. 311, 315-316, 319). Footnote


3. The Closing Arguments.

The prosecutor began her closing statement by returning to the "word on the street" theme she had first raised in her opening (Tr. 114) -- this time explicitly relying on Detective Thomas's "expert" testimony and suggesting that Thomas had testified about Mr. xxxxxxx's actions (Tr. 342-343) (emphasis supplied):

What's the word out on the street about drugs and drug dealers? Don't have the drugs on your person because if you do, you will be charged with having the drugs. So whatever you do, get rid of it, throw it away, and run away from it. Because then you won't have the drugs on you. That's what the defendant, xxxxxxx xxxxxxx, did in this case. He had drugs on him. He got the word on the street, and he dropped the drugs right before a police officer is what the drug expert, Tyrone Thomas, told you, because he needed to get rid of it and he didn't want to have it on him.

See also Tr. 347 ("And with his right hand, like a [sic] word out on the street, he finally has to get rid of his drugs. He throws it down.").

The defense argued that the officers had not in fact seen Mr. xxxxxxx carrying drugs or throwing them to the ground and that their claim that he held the drugs out in the open while they followed him with a flashlight was simply not credible (Tr. 357-359, 360-362). Defense counsel suggested that Mr. xxxxxxx had run because he was carrying a large amount of cash and feared robbery from the unidentified men jumping out of their cars (Tr. 360). When the officers subsequently found drugs that someone else had discarded on the sidewalk, they "put[] two and two together and [got] five" (Tr. 365).


4. The Jury Instructions.

Although the government proposed that the court charge the jury using the Criminal Jury Instructions for the District of Columbia (3d ed. 1978) ("Redbook") Footnote (A. 12-14), and defense counsel likewise made his objections and requests by reference to the Redbook (Tr. 330-332), the court did not in fact follow those pattern instructions. Instead, the court paraphrased the requested instructions -- adding, skipping and rewording such that they were barely recognizable as having come from the Redbook at all.

Most of the court's deviations from the Redbook were changes in form only and adequately conveyed the substance of the relevant law. With respect to the critical issue of the burden of proof, however, certain of the court's additions and asides combined to leave the jury with a plainly erroneous understanding of the law. First, in setting out the different types of evidence and explaining the concepts of direct and circumstantial evidence, the court summed up by ad libbing as follows (Tr. 380-381) (emphasis added):

Is it believable is the important thing. Not what kind of evidence, whether it's direct or circumstantial, but is it believable, is it likely to be true. You, as I will point out in a moment, are the ones who are going to have to decide whether it's likely to be true.

Then, in giving the actual burden of proof instruction, the court followed fairly closely the Redbook definition of "reasonable doubt" but sandwiched the approved instructions in between comments suggesting to the jurors that the definition of reasonable doubt he was reading to them was circular and otherwise less than adequate (Tr. 384-385) (emphasis supplied):

Now, what's a reasonable doubt? A reasonable doubt is a doubt for which you can give a reason, which doesn't tell us much. But a reasonable doubt has also been defined as such a doubt as would cause a juror after careful and impartial consideration to be so undecided that you do not have an abiding conviction of the defendant's guilt. Or another way it has been explained is that a reasonable doubt would cause a reasonable person to hesitate in the more important transactions of his or her own life. On the other hand, a reasonable doubt is not a fanciful doubt or one that's based on speculation or conjecture. The government is not required to prove guilt beyond all doubt or to a mathematical or scientific certainty. The government has the burden of proving guilt beyond a reasonable doubt as best as I could explain that concept to you.


Mr. xxxxxxx's conviction must be reversed because it is reasonably likely that the jury understood the court's instructions to allow conviction based on less than proof beyond a reasonable doubt. The court instructed the jurors that, in evaluating the evidence, "the important thing" they must decide is "is it likely to be true" (Tr. 380-381). This formulation, which is the equivalent of a mere preponderance standard, has no place in criminal jury instructions. The court's later instructions defining reasonable doubt did not eliminate the likelihood that the jury applied the lower standard they had already heard given that the court delivered the correct instructions sandwiched between comments criticizing the adequacy of those definitions. Put simply, the jury was given two different standards of proof -- one right, one wrong. The court's apologies for the complicated nature of the right one, combined with the straightforward nature of the wrong one, made it reasonably likely that, considering the instructions as a whole, the jury applied a plainly erroneous burden of proof.

The trial court also erred in permitting "drug expert" Tyrone Thomas to testify over objection as to whether and why drug dealers commonly throw drugs away in front of police officers. The court acknowledged that that testimony was not beyond the ken of the average juror (Tr. 277). It therefore did not meet the standard for admission of expert testimony under Federal Rule of Evidence 702 and should have been excluded. The court nevertheless allowed the evidence in on the assumption that it would do no harm. That assumption was wrong. The government used the testimony improperly to bolster the testimony of its fact witnesses and even suggested in closing argument that the expert himself had testified that Mr. xxxxxxx had discarded the drugs at issue. The prejudice was only magnified by the court's instruction to the jury that expert testimony should not be rejected "unless there is some good reason" (Tr. 265) -- thereby adding to the aura of special reliability and trust that this court has cautioned about in cases involving expert testimony. Given the way the evidence was unfairly exploited to boost the government's case, the erroneous admission of the testimony was not a harmless error.




A.Standard Of Review.

Jury instructions in criminal trials are unconstitutional if "there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship Footnote standard [of proof beyond a reasonable doubt]." Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994), citing Estelle v. McGuire, 502 U.S. 62, 72 & n.4 (1991).

Where, as here, defense counsel has not objected to the court's jury instructions, this Court has reviewed the defective instruction for plain error under Fed. R. Crim. P. 52(b). United States v. Merlos, 8 F.3d 48 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1635 (1994) (Merlos II). The plain error inquiry normally requires this Court to determine

(1) whether there is unwaived legal error, (2) whether the error is "plain" or "obvious" under current law, and (3) whether the error was prejudicial.

Merlos II, 8 F.3d at 50, citing United States v. Olano, 113 S. Ct. 1770, 1777 (1993). In Merlos II, however, this Court held that in light of the Supreme Court's decision in Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), holding that a constitutionally deficient reasonable doubt instruction never can be harmless error, a defendant whose lawyer failed to object to such an instruction need not show prejudice in order to obtain a reversal of his conviction:

[T]he central premise of Sullivan applies with equal force in the plain error context: where the error consists of a misdescription of the reasonable doubt standard, the court cannot assess the impact of the error on the outcome of the trial because there has been no jury finding of guilt beyond a reasonable doubt in the first instance.

8 F.3d at 51. See also United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir.) ("under Sullivan, a constitutionally deficient reasonable doubt instruction is presumptively prejudicial"), cert. denied, 115 S. Ct. 98 (1994); United States v. Colon-Pagan, 1 F.3d 80, 81-82 (1st Cir. 1993). The Merlos II Court found nothing in Sullivan that could "be read to alter either of the remaining prongs of plain error review" and affirmed Merlos's conviction because the error of which he complained was not "plain" under the current law at the time of his trial. Id.

Because the error in this case was "plain" under the law at the time of Mr. xxxxxxx's trial, appellant can satisfy the "plain error" standard applied by this Court in Merlos II. Appellant respectfully suggests, however, that under the reasoning of Sullivan, an Olano-type "plain error" analysis -- even one that requires no showing of prejudice, as in Merlos II -- simply cannot be performed if, due to a constitutionally defective jury charge, the defendant was deprived of a jury verdict within the meaning of the Sixth Amendment. As the Merlos II Court noted, the Sullivan Court "could not, of course, speak to the obviousness prong of Olano, for obviousness is not an element of harmless error review." 8 F.3d at 51. Reading Sullivan and Olano together, however, it

becomes clear that instructional errors of the type in Sullivan cannot be left uncorrected merely because they are not "obvious." The Olano Court explained that Rule 52(b) defines a category of "forfeited-but-reversible error" and that, if a forfeited error is not "plain" (in the sense of "obvious"), it cannot be corrected. 113 S. Ct. at 1776 & 1777. The Court emphasized the difference between "forfeiture," which is the failure to timely assert a right, and "waiver," which is the intentional relinquishment or abandonment of a known right. Id. at 1777. Sullivan teaches that when the jury is given a constitutionally defective reasonable doubt charge, "there has been no jury verdict within the meaning of the Sixth Amendment." 113 S. Ct. at 2082. The right to a jury verdict is the kind of fundamental right that can be lost only if it is knowingly "waived" by the defendant; it cannot be lost through mere "forfeiture" by the defendant's attorney -- regardless of whether the violation of that right is "obvious" at the time. Footnote

A jury verdict that has been "vitiate[d]" because of a misdescription of the burden of proof, Sullivan, 113 S. Ct. at 2082, can never be affirmed. Therefore, although Mr. xxxxxxx can in fact demonstrate that the error in his case was "obvious," see pp. 22-23, infra, it is appellant's position that errors of the kind in this case are not properly subject to any "plain error" analysis -- even the modified version applied in Merlos II.

  B.There Is A Reasonable Likelihood That Mr. xxxxxxx's Jury Understood The Instructions To Allow Conviction Based On Less Than Proof Beyond A Reasonable Doubt.

The Supreme Court has been insistent on the "vital role" of the charge on reasonable doubt and this Court too "ha[s] been insistent that the charge not be weakened." United States v. Merlos, 984 F.2d 1239, 1241 (D.C. Cir. 1993) (Merlos I), citing Cage v. Louisiana, 498 U.S. 39, 40 (1990). A court's jury instructions violate due process if there is a "reasonable likelihood" that the jury understood the instructions to allow conviction based on less than proof beyond a reasonable doubt. Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994). Here, looking at the instructions as a whole, it is reasonably likely that Mr. xxxxxxx's jurors found him guilty merely because they determined that the government's version of events was "likely to be true" -- a simple preponderance standard.

The court told the jury early in its instructions, before it ever mentioned "reasonable doubt," that in evaluating the evidence "the important thing" is whether it is "believable," but then rephrased that concept as: "is it likely to be true" (Tr. 380-81). The court then repeated, "You, as I will point out in a moment, are the ones who are going to have to decide whether it's likely to be true" (Tr. 381). This "likely to be true" formulation does not appear in any of the Redbook pattern instructions, and for good reason. While it is proper to tell jurors that they alone must "determine whether to believe any witness and the extent to which any witness should be believed" (Redbook Instructions 1.02 Footnote & 2.11) (emphasis added), that is not at all the same as telling them that the important thing they must decide is whether it is "likely" that the evidence given by those witnesses is true. The formulation used by the judge went not to the credibility of the witnesses, but directly to the degree of certainty required with respect to the facts about which they testified, lowering that standard to far below the constitutional minimum. Mr. xxxxxxx's jurors were supposed to decide, for example, whether they were convinced beyond a reasonable doubt that he possessed crack cocaine, not whether they thought the evidence that he did so was "likely to be true." Footnote

The jurors therefore heard the court's reasonable doubt instruction with an improperly low burden of proof already in mind. The court's off-the-cuff remarks apologizing for the inadequacy of the reasonable doubt definition made it reasonably likely that the jurors simply stuck with the seductively simply -- but wildly erroneous -- standard they had in mind before the reasonable doubt instruction was read.

The court's first comment -- that the statement that a reasonable doubt is a doubt for which you can give a reason "doesn't tell us much" (Tr. 384) -- let the jurors know in no uncertain terms that Judge Greene did not think what he was saying would be very helpful to them. See infra n.13 (discussing case involving similar comment by Judge Greene).

The court's final aside -- that the jurors were to apply the standard of guilt beyond a reasonable doubt "as best as I could explain that concept to you" (Tr. 385) -- further undermined the reasonable doubt instruction. The judge's comment could have been interpreted by the jurors as a suggestion that the concept of reasonable doubt is just too difficult to explain -- a suggestion that is not without judicial support Footnote but surely is not one to be passed on to jurors faced with the task of applying that standard to judge another human being. More likely, the comment was interpreted by the jurors as another expression of Judge Greene's opinion that some of his explanations were unnecessarily complicated due to constraints imposed upon him by the higher courts. Footnote Either way the jurors interpreted the court's final comment, it was a clear signal to them that Judge Green had little confidence in the utility of the explanation he had just read. Faced with definitions that the judge clearly felt were inadequate, the jurors were reasonably likely simply to fall back on the straightforward, plain-English, standard the judge had provided when he first talked about evaluating the evidence: Is it "likely to be true"? Footnote


The fact that the trial judge did offer the jury some approved definitions of reasonable doubt (after his "likely to be true" instructions and in between his asides discounting the usefulness of the approved definitions), cannot save the instructions in this case. The issue is whether, "taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury." Holland v. United States, 348 U.S. 121, 140 (1954) (emphasis added). The existence of an accurate statement of the burden of proof somewhere in the instructions does not render the instructions lawful if it is "reasonably likely" that the jury relied on the faulty definition during its deliberations. Merlos I, 984 F.2d at 1242, citing Estelle v. McGuire, 502 U.S. 62, 72 (1991); Boyde v. California, 494 U.S. 370, 380 (1990). See also United States v. Alston, 551 F.2d 315, 319 (D.C. Cir. 1976) ("Although the district court properly reminded the jury on several occasions of the Government's burden of proof, we are unwilling to presume that the ambiguity created by [other incomplete and/or misleading instructions] was thus dissipated"); United States v. Rhone, 864 F.2d 832, 837 (D.C. Cir. 1989) (reversing where, "[a]t the very least, the instruction confused the jury on the very central issue of intent"). Footnote

Here, the jurors were especially likely to be drawn to the faulty instruction, which because of its "nonlegal character might have been more easily comprehended and remembered than the standard instruction." United States v. Pinkney, 551 F.2d 1241, 1245 (D.C. Cir. 1976). In Rhone, this Court held that the fact that the trial judge "emphasized" the flawed instruction "by delivering it in the form of an afterthought," at the end of an otherwise flawless and unambiguous instruction read from the Redbook, reinforced its conclusion that the erroneous instruction was not harmless: "[W]e find it likely that the jury was sufficiently conscious of the instruction to have given it greater weight than a cold reading of the record might suggest." 864 F.2d at 837. Here too, the court's casual asides about the reasonable doubt instruction surely packed a greater punch than the dry text of the instruction itself and the ad libbed nature of the court's "likely to be true" instruction likewise served to "emphasize" that improper standard. Id.

  Finally, the jurors were particularly likely to have been confused by the court's contradictory instructions given the way each side had argued the burden of proof issue in closing. Footnote Defense counsel in his closing emphasized the government's "high burden" but did not attempt to explain or illustrate the reasonable doubt concept, quite properly deferring to the court in that regard (Tr. 365): "Judge Greene will tell you what reasonable doubt is. . . . Listen to Judge Greene when he tells you what it is." Unfortunately, when the time came for the court to do so, the judge implied that he could not adequately explain the concept after all, leaving the jury to fall back on the simple but erroneous directive that they should to decide whether the evidence was likely to be true.

At the conclusion of the government's rebuttal argument, the prosecutor did attempt to explain the concept of reasonable doubt, but did so in a way that shifted the burden of proof, transforming the presumption of innocence into a presumption of guilt (Tr. 376) (emphasis supplied):

The judge will tell you [you must have a] reasonable doubt in order to find the defendant not guilty. That is that you have to give a reason. It's not some whimsical reason for why you would find the defendant not guilty. You have to give a reason you can articulate for why you wouldn't find the government proved the elements in this case.

This blatantly improper argument by the government makes it all the more likely that the jury misunderstood the court's faulty instructions with respect to the burden of proof and further distinguishes this case from West, in which the Eighth Circuit relied in part on the fact that the government reinforced the proper burden of proof in its closing argument (28 F.3d at 752-753).

C.The Error Was "Plain."

With respect to whether the error in this case was "plain" in the sense of being "obvious" under current law, "the relevant inquiry is whether a court has ever disapproved the instruction (or any synonymous phrase) or any challenged portion thereof." Merlos II, 8 F.3d at 51 (emphasis removed). This Court affirmed the conviction in Merlos II because, before Merlos I, "we had never previously held that the phrase 'strong belief' impermissibly dilutes the reasonable doubt instruction." Id. Merlos I had involved an examination of the common meaning of the word "belief," along with the word "strong," and a judicial conclusion that, together, they did not add up to "beyond a reasonable doubt." This case is entirely different: It has always been the law that a standard of "likely to be true" is far below the reasonable doubt standard.

More than a century ago, Chief Justice Shaw of the Massachusetts Supreme Court formulated a reasonable doubt instruction that remains the basis for many modern instructions and that included the following (emphasis supplied): "[I]t is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary." Commonwealth v. Webster, 59 Mass. 295, 320 (1850), quoted in Victor v. Nebraska, 114 S. Ct. at 1244. The Federal Judicial Center pattern reasonable doubt instruction, cited with approval by Justice Ginsburg in Victor, 114 S. Ct. at 1253 (Ginsburg, J., concurring), makes the same obvious point:


Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that.

Federal Judicial Center, Pattern Criminal Jury Instructions 17-18 (1987) (Instruction 21) (emphasis supplied).

This Court held long ago that "[a]n instruction central to the determination of guilt or innocence may be fatally tainted by even a minor variation which tends to create ambiguity." United States v. Alston, 551 F.2d 315, 321 (D.C. Cir. 1976). Here, the use of the "likely to be true" formulation was more than a "minor variation" from the proper standard. It cut to the heart of the burden of proof in a way that is obvious to anyone who knows the difference between the criminal and civil burdens of proof.



A.Standard of Review.

Because defense counsel objected to Detective Thomas's "expert" testimony as to whether and why drug dealers commonly throw drugs on the ground in front of police officers (Tr. 277), the trial court's decision to admit that testimony is preserved for full appellate review. This Court reviews that decision for abuse of discretion. Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993); United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992).

B.Detective Thomas's Testimony Did Not -- By The Court's Own Admission -- Meet The Standard For Admissibility Under Rule 702 And The Government Used The Testimony Improperly To Bolster Its Fact Witnesses.

The Federal Rules of Evidence provide that

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed. R. Evid. 702 (emphasis supplied). "Under that requirement that expert testimony 'assist' the jury (usually referred to as the 'helpfulness' requirement), testimony should ordinarily not extend to matters within the knowledge of laymen." Boney, 977 F.2d at 628. See also Pelster v. Ray, 987 F.2d 514, 526 (8th Cir. 1993) ("[w]here the subject matter is within the knowledge or experience of lay people, expert testimony is superfluous") (quotations omitted).

Here, the prosecutor proposed to elicit testimony from its "drug expert" as to whether and why drug dealers commonly throw their drugs away in front of the police (Tr. 276-277). When defense counsel objected that that was an inappropriate subject for expert testimony, the court overruled the objection, even while agreeing that the testimony was within the knowledge of laymen (Tr. 277): "I suppose everybody knows it anyway, which is your point, I suppose, that we don't need an expert for that." The court nevertheless admitted the testimony after concluding that the probative/prejudice balance was a wash -- the evidence was just as non-prejudicial as it was non-probative (id.): "On the other hand, it isn't particularly prejudicial because everybody knows that anyway." The court surely abused its discretion in admitting testimony that it in effect acknowledged did not meet the legal standard for admissibility. Because the court's justification for letting the evidence in -- that it would not be particularly prejudicial to Mr. xxxxxxx -- turned out to be wrong, the error was not harmless.

 Judge Greene was exactly right when he concluded that this testimony was not beyond the ken of lay jurors. While "the operations of narcotics dealers" repeatedly have been found to be a suitable topic for expert testimony "because they are not within the common knowledge of the average juror," Boney, 977 F.2d at 628, the testimony elicited here was not of that type. Courts allow experts to testify on "narcotics operations" because "jurors are commonly unfamiliar with the methods by which drug dealers attempt to conceal their activities." United States v. Dunn, 846 F.2d 761, 763 (D.C. Cir. 1988). But in explaining that drug dealers often toss away drugs as they are being arrested, Detective Thomas was not describing unusual behavior unique to the drug trade. The "expert" information Detective Thomas provided about the way drug dealers behave when they are caught by the police was "Common Sense 101" -- familiar to anyone who has ever walked into a kitchen and watched a child drop a purloined cookie on its way out of the jar. Cf. Robertson v. McCloskey, 680 F. Supp. 408, 411 (D.D.C. 1988) (excluding expert testimony on psychodynamics of memory where "the average person is able to understand that people forget") (quotations omitted).

 Likewise, this was not the kind of expert modus operandi testimony that is necessary when the conduct at issue is seemingly innocent and only an expert can put the activity in its proper framework. See United States v. Jackson, 425 F.2d 574, 576-577 (D.C. Cir. 1970) (admitting expert testimony on modus operandi of pickpockets where "[c]onduct innocent in the eyes of the untrained may carry entirely different 'messages' to the experienced or trained observer") (quotations omitted). Here, there was no innocent explanation for why someone would abandon a bag of drugs. The only issue was whether it was Mr. xxxxxxx who had done so. See United States v. Cruz, 981 F.2d 659, 662-63 (2d Cir. 1992) (expert testimony improper where issue was not whether transactions described were drug transactions but whether defendant was present at those transactions).

Expert testimony is sometimes admitted even on matters of common sense "when the defense seeks to discredit the government's version of events as improbable criminal behavior." United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir.) (quotations omitted) (government permitted to introduce expert testimony about drug traffickers' use of cash and nicknames where the defendants argued that the government's version of events did not suggest criminal activity), cert. denied, 115 S. Ct. 206 (1994). Cf. United States v. Anderson, 851 F.2d 384, 393 (D.C. Cir. 1988) (expert testimony on pimp-prostitute relationship was helpful to jury in, inter alia, evaluating defense claim that prostitute witnesses would not have remained with defendant if he had mistreated them as they claimed), cert. denied, 488 U.S. 1012 (1989). But that is not what happened in this case. Mr. xxxxxxx never suggested that it was improbable that a drug dealer would throw drugs on the ground when the police approached. Indeed, his theory was that one of the other people standing out along Ridge Road had done just that. Footnote What Mr. xxxxxxx argued was improbable was the notion that a drug dealer would carry a bag of drugs out in the open while the police followed him with a flashlight trained on the bag. Footnote

Although the Second Circuit is in agreement with this Court that, as a general proposition, "the operations of narcotics dealers are a proper subject for expert testimony under Fed.R.Evid. 702," United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991), that court has found admission of such testimony improper under Rule 702 where the particular practices at issue were not beyond the ken of the average juror, id. at 1232-33, and has found the error not harmless where the government used the improper testimony to bolster the credibility of its fact witnesses by mirroring their version of events. Id. at 1233-35. See also

United States v. Cruz, 981 F.2d 659 (2d Cir. 1992). That is exactly what happened here.

Here, the prosecutor put on "expert" testimony about a common sense matter that was not even in dispute (people do not want to be caught holding contraband) and then built her entire closing around the theme that Mr. xxxxxxx's alleged actions were consistent with the "word on the street" as stated by the expert (Tr. 342-343, 347, 353). The jury was therefore encouraged to believe the story told by the police merely because it matched up with what the expert said was "the most common thing [a drug dealer] will do" (Tr. 292).

The First Circuit, too, has recently disapproved of using expert testimony in this way when the matters at issue are "readily intelligible." See United States v. Montas, 41 F.3d 775, 784 (1st Cir. 1994) (expert testimony that airline drug smugglers buy tickets under false names to avoid detection "was on the very margin of -- and probably beyond" the limits of Rules 702 and 403, but was not "plain error" where no objection was made). As the Montas court explained (id.):

Expert testimony on a subject that is well within the bounds of a jury's ordinary experience generally has little probative value. On the other hand, the risk of unfair prejudice is real. By appearing to put the expert's stamp of approval on the government's theory, such testimony might unduly influence the jury's own assessment of the inference that is being urged.

In her zeal to use the "expert" to prove the facts of her case, the prosecutor not only employed Detective Thomas's testimony to bolster the testimony of the fact witnesses; she actually tried to put fact testimony in the expert's mouth (Tr. 342-343) (emphasis supplied): "[Mr. xxxxxxx] got the word out on the street, and he dropped the drugs right before a police officer is what the drug expert, Tyrone Thomas, told you, because he needed to get rid of it and he didn't want to have it on him."

Using expert testimony as the government did here is especially harmful given the "inherent danger with expert testimony unduly biasing the jury '[b]ecause of its aura of special reliability and trust.'" United States v. Anderson, 851 F.2d 384, 393 (D.C. Cir. 1988), cert. denied, 488 U.S. 1012 (1989), quoting United States v. Amaral, 488 F.2d 1148, 1150 (9th Cir. 1973). Here, the court exacerbated that aura with its (again, ad libbed) "limiting" instruction on expert testimony (Tr. 264-265) (emphasis supplied):

Normally witnesses can only testify to what they participated in, like what they saw and what they did and what somebody else did and so on. An expert can give his opinions, which other witnesses cannot do.


Somebody becomes an expert, is qualified by the court to be an expert, if he's got special knowledge as a result of education or as a result of having held a job that is technical that the rest of us don't know about and so on. So if a person is qualified as an expert, as I am about to qualify this witness, then he may give his opinion about matters even though he wasn't present at all at the place, for example, where the drugs were found or where the person was arrested. He can just give his opinion. You are not bound by his opinions any more than you are bound by the testimony of any other witness, but you shouldn't reject it unless there is some good reason for it. Footnote

This Court has noted that decisions to admit expert testimony are reviewed "'with a sharp eye, particularly in those instances, hopefully few, where the record makes it evident that the decision to receive expert testimony was simply tossed off to the jury under a "let it all in" philosophy.'" Coleman v. Parkline Corp., 844 F.2d 863, 867 n.3 (D.C. Cir. 1988), quoting In re: Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233 (5th Cir. 1986). Here, that appears to have been precisely the trial court's approach. The trial judge's acknowledgement that the testimony was a matter of common knowledge should have resolved the admissibility issue under Rule 702 and ended the matter. The judge's decision to admit inadmissible testimony on the theory that it would not do any harm was hardly a proper exercise of a trial court's discretion. If the court had been right about the prejudicial impact of the testimony, the error might have been harmless. But, given the way the testimony was exploited by the government and enhanced by the court's own instruction, this Court must conclude that admission of the testimony was not a harmless error.


For the foregoing reasons, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court for a new trial.

Respectfully submitted,





Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant xxxxxxx J. xxxxxxx



I hereby certify that the foregoing Brief for Appellant xxxxxxx J. xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).




Assistant Federal Public Defender


I hereby certify that two copies of the foregoing Brief for Appellant xxxxxxx J. xxxxxxx 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 14th day of February, 1995.




Assistant Federal Public Defender