ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
AND CROSS-APPEAL NO. 92-3140
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-
LONGINO XAVIER Xxxxx, Defendant-
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A. J. KRAMER
Federal Public Defender
District of Columbia
625 Indiana Ave., N.W.
Washington, D.C. 20004
Cr. No. 91-0661-01
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to Rule 11 of the General Rules of this court, appellant, Longino Xavier Xxxxx hereby states as follows:
A. Parties and Amici: The parties below and in this court are the defendant-appellant, Longino Xavier Xxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.
B.Rulings Under Review: In this appeal defendant challenges the sufficiency of the evidence to support the jury's verdict. The defendant also contests four rulings of the district court, the Honorable Stanley Sporkin, in this appeal. The first is the district court's refusal to admit statements of a third-party declarant that exculpated the defendant. The second is the district court's instruction defining reasonable doubt for the jury. The third is the district court's refusal to grant a mistrial because of statements made by the government in the rebuttal portion of its closing argument. The fourth is the district court's instruction to the jury regarding the elements of the crime of possession with intent to distribute within 1,000 feet of a school. There is no official citation to any of these rulings.
C.Related Cases: This case has not been before this court or any other court previously, nor is counsel aware of any related cases.
TABLE OF CONTENTS
ISSUES PRESENTED vi
STATEMENT OF THE CASE 2
B.The Government's Case 3
C.The Defense Case 6
D.The Closing Arguments 13
E.The Instructions 14
F.The Verdict and Aftermath 16
SUMMARY OF ARGUMENT 17
I.THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION 18
II.THE DISTRICT COURT ERRED IN REFUSING TO ADMIT ALL OF BIDGELL'S STATEMENTS 26
III.THE DISTRICT COURT ERRED IN DEFINING REASONABLE DOUBT IN ITS INSTRUCTIONS TO THE JURY 35
A. Introduction 35
B. Defining Reasonable Doubt 35
C. The Definition in the Present Case 37
IV.THE PROSECUTOR'S MISCONDUCT IN CLOSING ARGUMENT WAS REVERSIBLE ERROR 39
V.THE DISTRICT COURT SHOULD HAVE INSTRUCTED THE JURY THAT IT HAD TO FIND DEFENDANT INTENDED TO DISTRIBUTE THE DRUGS WITHIN 1,000 FEET OF A SCHOOL 44
TABLE OF AUTHORITIES
Berger v. United States,
295 U.S. 78 (1935)40, 41, 43
Blatt v. United States,
60 F.2d 481 (3d Cir. 1932)36
*Cage v. Louisiana,
111 S.Ct. 328 (1990)37-39
Chambers v. Mississippi,
410 U.S. 284 (1973)35
Delgado v. United States,
327 F.2d 641 (9th Cir. 1964)25
Friedman v. United States,
381 F.2d 155 (8th Cir. 1967)36
*In re Winship,
397 U.S. 358 (1970)38, 39
Moore v. United States,
345 F.2d 97 (D.C. Cir. 1965)37
Thompson v. Lynaugh,
821 F.2d 1054 (5th Cir.),
cert. denied, 483 U.S. 1035 (1987)36
United States v. Allen,
596 F.2d 227 (7th Cir. 1979)38
United States v. Atkins,
558 F.2d 133 (3d Cir. 1977),
cert. denied, 434 U.S. 1071 (1978)29
United States v. Batimana,
623 F.2d 1366 (9th Cir.),
cert. denied, 449 U.S. 1038 (1980)26
United States v. Benveniste,
564 F.2d 335 (9th Cir. 1977)28
*United States v. Brainard,
690 F.2d 1117 (4th Cir. 1982),
cert. denied, 471 U.S. 1099 (1985)28, 29, 31, 33
* Cases chiefly relied upon are marked with an asterisk.
United States v. Candoli,
870 F.2d 496 (9th Cir. 1989)29
United States v. Chun-Yin,
958 F.2d 440 (D.C. Cir.),
cert. denied, 112 S.Ct. 3010 (1992)18
United States v. Coates,
739 F. Supp. 146 (S.D. N.Y. 1990)45
United States v. Daniels,
770 F.2d 1111 (D.C. Cir. 1985)43
*United States v. Eccleston,
961 F.2d 955 (D.C. Cir. 1992)21-23, 43
United States v. Fernandez,
892 F.2d 976 (11th Cir. 1989),
cert. dismissed, 495 U.S. 944 (1990)27
*United States v. Gaither,
413 F.2d 1061 (D.C. Cir. 1969)41, 42
United States v. Garcia,
897 F.2d 1413 (7th Cir. 1990)34
United States v. Gibbs,
904 F.2d 52 (D.C. Cir. 1990)19
United States v. Hall,
854 F.2d 1036 (7th Cir. 1988)35, 36
United States v. Hernandez,
780 F.2d 113 (D.C. Cir. 1986)19
*United States v. Jenkins,
928 F.2d 1175 (D.C. Cir. 1991)20-23
*United States v. Layton,
720 F.2d 548 (9th Cir. 1983),
cert. denied, 465 U.S. 1069 (1984)29, 32, 33
United States v. Liranzo,
729 F. Supp. 1012 (S.D. N.Y. 1990)45
United States v. Lopez,
777 F.2d 543 (10th Cir. 1985)28
United States v. Martin,
483 F.2d 974 (5th Cir. 1973)24
*United States v. McDonald,
777 F. Supp. 44 (D. D.C. 1991)45, 46
*United States v. Monaghan,
741 F.2d 1434 (D.C. Cir. 1984),
cert. denied, 470 U.S. 1085 (1985)42
*United States v. Morris,
No. 91-3151 (D.C. Cir. October 9, 1992)18, 19
United States v. Nolasco,
926 F.2d 869 (9th Cir.)(en banc),
cert. denied, 112 S.Ct. 111 (1991)36
*United States v. Pardo,
636 F.2d 535 (D.C. Cir. 1980)24
United States v. Perholtz,
842 F.2d 343 (D.C. Cir.),
cert. denied, 488 U.S. 821 (1988)42
United States v. Rackley,
742 F.2d 1266 (11th Cir. 1984)26
United States v. Reese,
775 F.2d 1066 (9th Cir. 1985)25
United States v. Roberts,
735 F. Supp 537 (S.D. N.Y. 1990)45
United States v. Rodriguez,
761 F.2d 1339 (9th Cir. 1985)26
United States v. Rodriguez,
961 F.2d 1089 (3d Cir. 1992)45, 46
United States v. Rogers,
918 F.2d 207 (D.C. Cir. 1990)46
*United States v. Slaughter,
891 F.2d 691 (9th Cir. 1989),
cert. denied, 112 S.Ct. 3053 (1992)28, 35
*United States v. Staten,
581 F.2d 878 (D.C. Cir. 1978)24
United States v. Testa,
768 F. Supp. 221 (N.D. Ill. 1991)45
United States v. Thomas,
571 F.2d 285 (5th Cir. 1978)28
United States v. Thompson/Center Arms Co.,
112 S.Ct. 2102 (1992)46
United States v. Wake,
948 F.2d 1422 (5th Cir. 1991),
cert. denied, 112 S.Ct. 2944 (1992)46
United States v. Wallace,
848 F.2d 1464 (9th Cir. 1988)47
United States v. Watkins,
519 F.2d 294 (D.C. Cir. 1975)25
United States v. Woods,
812 F.2d 1483 (4th Cir. 1987)35
United States v. Woolbright,
831 F.2d 1390 (8th Cir. 1987)32
21 U.S.C. § 860(a)44
28 U.S.C. § 12911
Federal Rules of Evidence and Criminal and Appellate Procedure
Fed.R.Evid. 804(b)(3)17, 27
4 David W. Louisell & Christopher B. Miller,
Federal Evidence (1980)31
4 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Evidence (1991)27, 30
Walter W. Steele & Elizabeth G. Thornburg,
Jury Instructions: A Persistent Failure to
Communicate, 67 N. C. L. Rev. 77 (1988)37
Webster's Third New International Dictionary (1986)38
The issues presented are as follows:
1.Whether there was sufficient evidence to sustain the conviction.
2.Whether the district court erred in refusing to admit, under Fed.R.Evid. 804(b)(3), statements of a third-party declarant that exculpated the defendant.
3.Whether the district court erred in defining reasonable doubt for the jury in the instructions.
4.Whether the district court erred in not granting a mistrial due to comments made by the government in the rebuttal portion of its closing argument.
5.Whether the district court erred in defining for the jury the elements of the offense of possessing drugs with the intent to distribute within 1,000 feet of a school.
STATUTES AND REGULATIONS
The pertinent statutes and regulations appear in the addendum to this brief.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
AND CROSS-APPEAL NO. 92-3140
BRIEF OF APPELLANT
UNITED STATES OF AMERICA, Plaintiff-
LONGINO XAVIER Xxxxx, Defendant-
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed.R.App.P. 4(b), this court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE CASE
The defendant-appellant, Longino Xavier Xxxxx, was indicted on November 21, 1991, in a two count indictment (ER 1). Count One charged possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Count Two charged possession with intent to distribute cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a). The offenses were alleged to have occurred on October 22, 1991.
The defendant's jury trial began on February 4, 1992, and lasted three days. The jury found defendant guilty of the charges on February 7, 1992. At sentencing the district court, on the government's motion, dismissed Count One, which was a lesser included offense of Count Two. The district court sentenced defendant to imprisonment for 120 months, a supervised released term of sixteen years, and a special assessment of $50 (ER 82).
The case arises from a search of a house at 270 53rd Street, N.E., in the District of Columbia, conducted pursuant to a search warrant. Drugs were found in a bag in a closed drawer of a dresser that was located in one of the upstairs bedrooms. Defendant was walking out of the room as the police came up the stairs to search. The government contended that defendant was the sole occupant of the bedroom and that the drugs were his.
The defense theory of the case was that Micah Bidgell, a relative, shared the room with defendant, and that the drugs really belonged to Bidgell. Defendant presented the testimony of the other people who lived in the house. They all testified that Bidgell shared the room with defendant at the time the drugs were discovered. The defense also wanted to introduce statements made by Bidgell, which are discussed in detail below. The district court allowed portions of the statements to come into evidence, and excluded other portions.
B.The Government's Case
On October 22, 1991, eight to ten police officers executed a search warrant at 270 53rd Street, N.E., in the District (RT I:42-43). The house is a two-story semi-detached dwelling, in a housing project (RT I:42). The first floor of the house consists of a kitchen, dining area, living room, and a bedroom (RT I:45). Upstairs, there are three bedrooms and a bathroom (RT I:45).
When the police arrived they knocked loudly and announced they were police (RT I:47). They waited for ten to fifteen seconds when defendant's mother, Marita Xxxxx, opened the door and let them into the house (RT I:44). Officer Manuel Gaffney was the first officer to go up the stairs to the second floor. When Gaffney was almost at the top of the steps he saw defendant coming out of the bedroom to the right of the stairs (RT I:60). As Gaffney reached the top step, defendant was just walking out of the bedroom (RT I:61). Defendant was dressed only in white jockey underwear (RT I:61). Gaffney told defendant to stop, which he did, and other officers came and took defendant down the stairs (RT I:61).
At least three officers searched the bedroom from which defendant came. This bedroom was smaller than the other bedrooms upstairs, about half the size (RT I:68; RT II:11). Officer Joseph Dolan found the drugs in a dresser with four drawers (RT I:69). There was a brown paper bag in the second drawer from the top, sitting on top of some men's jockey shorts in the right-hand corner of the drawer (RT I:70-71). The drawer was closed when Dolan entered the room (RT I:82). Inside the paper bag were the drugs, some ziploc plastic bags, and a razor blade (RT I:70-71).
The drawer also contained some crew neck T-shirts (RT I:72). In all, there were about a dozen pairs of underwear and T-shirts in the drawer (RT I:72). There were also two pieces of mail on the bottom left-hand side of the drawer (RT I:78). Both were addressed to the defendant; one was a loan notice and the other was a handwritten envelope (RT I:78). There was also a photograph of defendant turned over on its back in the drawer, which was underneath the underwear, in about the middle of the drawer (RT I:79).
Dolan also found, on the dresser, an invoice from the Ski Chalet, in the name of Micah Bidgell (RT I:86). This invoice had the address of "27 53rd Street, N.E." on it (RT I:86).
One of the other officers who searched the bedroom, Peter Newsham, also testified. He searched the bed, a TV stand and some bags and boxes in the corner of the room (RT II:12). He recovered two pieces of mail from the TV and two from the bureau (RT II:13). All four of the letters were addressed to defendant (RT II:13-14).
Both Dolan and Newsham testified that there was only one bed in the room in which the drugs were found (RT I:68; RT II:11). Newsham stated that because of the size of the room if there had been another bed in the room there would not have been room to walk (RT II:12). No photographs of the rooms were taken by the police (RT II:16).
Newsham also went into another of the upstairs bedrooms. He testified that there were boxes and bags of clothing and other items in that room and a dresser with a mirror (RT II:15). The door to this room, which appeared to be a storage room, had to be pushed open because there were bags behind it (RT II:15). If there was a bed in this room, Dolan did not see it, and he did not see any evidence that anyone lived in the room (RT II:15-16).
Another officer, Phillip Robinson, obtained pants, a T-shirt, and shoes so defendant could get dressed (RT I:53). Robinson did not know who threw the clothes to him from the room, nor did he know from where within the room the clothes came (RT I:53-54). Dolan testified that he was not the one who gave the clothes to Robinson for defendant to get dressed, and Dolan did not know who did (RT I:82-83). Dolan knew that the T-shirt defendant was given to wear was not one of the ones in the drawer where the drugs were found (RT I:83). Newsham did not handle any clothing (RT II:13). The parties stipulated that the clothes the police obtained for defendant to wear to the police station were obtained from the same room in which the drugs were found (RT II:39).
The parties also stipulated that the police took no fingerprints (RT II:38). In addition, there were stipulations regarding the drugs. The drugs found by Dolan consisted of 31.97 grams of cocaine base, with a purity of 70% (RT II:39-40). The drugs, the razor blade, and the ziplocs would be possessed only by someone who intended to distribute the drugs (RT II:38-39). The drugs had a wholesale value of $1,500 and a street value when packaged in the ziplocs of over $3,000 (RT II:38-39). Finally, it was stipulated that the house was within 1,000 feet of a school (RT II:39). At the conclusion of the government's case, defendant's motion for a judgment of acquittal, pursuant to Fed.R.Crim.P. 29(a), was denied (RT II:42).
C.The Defense Case
The defendant's sister, Katrina Griffin, testified that she had lived at the house for three years, including October of 1991 (RT II:93-94). She lived in one of the upstairs bedrooms (RT II:94). In October, 1991, Bidgell shared the bedroom where the drugs were found with the defendant (RT II:95). There were two beds in the room at that time (RT II:95-98). Ms. Griffin identified a series of pictures, defendant's Exhibits 6, 7, 8, 9, and 11, as depicting the room the way it looked in October, 1991 (RT II:97-98). Ms. Griffin testified that defendant lived in the house since September, 1991, and that Bidgell started living there sometime in 1990 or 1991 (RT II:102-103).
Paul Xxxxx, the defendant's brother, had lived at the house for four or five years, including October, 1991 (RT II:131). Mr. Xxxxx's bedroom was on the first floor (RT II:132). On the day of the search Bidgell was sharing the bedroom with defendant (RT II:133). Bidgell had lived there since July, 1991 (RT II:139). Defendant had lived at the house in the summer of 1988, had been gone for a while, and had moved back in and lived there since September, 1991 (RT II:133). There were two beds in the room (RT II:133). Mr. Xxxxx identified the same pictures his sister identified as being the room the way it looked in October, 1991 (RT II:134).
Mr. Xxxxx got home shortly after the police left the night of the search (RT II:133). Mr. Xxxxx testified that Bidgell had stayed in the bedroom every night from July, 1991 until the night of the search (RT II:141). Bidgell did not come back home the night of the search and lived somewhere else since that night (RT II:133).
The defendant's mother, Marita Xxxxx, was home the night of the search (RT II:148). She thought that defendant was in bed when the police came (RT II:164). Bidgell, who was her grandson, had left the house about five minutes before the police arrived (RT II:148). Bidgell shared the room with the defendant, which contained two beds. (RT II:149). As long as Bidgell lived with her, he shared a bedroom with defendant (RT II:152).
Ms. Xxxxx testified that Bidgell had lived there from July, 1991, until the search (RT II:151). Bidgell received his mail at the house (RT II:163). Defendant, who had basically lived with her all his life, had come back to live in the house in September, 1991, after being away for a while (RT II:151). She identified as belonging to her, two of the pieces of paper which the police had seized from the bedroom with the drugs (RT II:149). They were her lottery numbers and a work schedule (RT II:149).
The government cross-examined Ms. Xxxxx about forms she filled out to live in the house, which was public housing (RT II:153). The household members as well as their incomes were supposed to be listed on the lease, and the tenant was supposed to provide notice of any changes (RT II:154-155). In March, 1990, she listed defendant, Paul Xxxxx, and Micah Bidgell as living in the house (RT II:155). In May, 1991, she listed only defendant and Paul, indicating that Bidgell had left (RT II:158). She had not listed her daughter, Katrina Griffin, as living there.
Ms. Xxxxx explained that Bidgell had left at one point and she had taken him off the lease (RT II:166). Bidgell moved back into the house in July, 1991 (RT II:151). He was staying there only while he straightened himself out and was going to move soon (RT II:166). The housing manager told her it would be difficult to put Bidgell back on the lease under those circumstances (RT II:166).
Bidgell came back to her house a day or two after the search (RT II:165). Ms. Xxxxx told him to put the mattresses back in place and to pick up the clothes in the bedroom, because the police had trashed the room (RT II:165). She had asked both Bidgell and the defendant if they were guilty (RT II:162).
There were discussions beginning early in the case about defendant's intention either to call Bidgell as a witness or to introduce statements he had made to an investigator for the defense (ER 6-57). Bidgell made two oral statements, and signed a written statement.
The first oral statement was made on January 30, 1992, in the bedroom at the house. Bidgell stated that he stayed in the bedroom with defendant and shared the dresser drawer (ER 3). Bidgell, when asked from where the drugs came at first did not answer and then mumbled that he did not know. When he asked which drawer he used he started toward the dresser as if to show which one, then he abruptly stopped and said he really did not remember.
On February 4, 1992, Bidgell again met with the investigator (ER 4). This time he stated that $3,800 the police found in the bedroom was under his mattress. After signing the statement, Bidgell told the investigator that Bidgell would probably be indicted the next day.
Bidgell's signed statement began by acknowledging that he lived in the bedroom with defendant. Bidgell ended the statement by admitting, "I know for a fact, without a doubt, that the drugs found in the bedroom at the above address were not Longino Xxxxx's drugs." (ER 5).
At the conclusion of the government's case defendant told the district court that he wished to call Bidgell as a witness, but was alerting the court because he had an obvious Fifth Amendment problem (RT II:42). There was extensive discussion about the issue at that time. The district court indicated that the government should grant Bidgell immunity or that the district court would consider issuing a protective order that would allow Bidgell to testify and then the district court would seal the testimony, and nothing Bidgell said could be used against him (RT II:52-55; 62). The government refused to grant any type of immunity, even though the district court pointed out that the government would be in no worse position with respect to Bidgell if it did so (RT II:59).
The district court appointed a lawyer for Bidgell, who stated that he had a valid Fifth Amendment right that would be asserted in response to any questioning (RT II:60). The lawyer also requested immunity from the government (RT II:60). The district court again indicated it might grant a protective order, but the government stated its position that the protective order would have no effect, and it would seek to use the testimony of Bidgell in a subsequent proceeding against him (RT II:62-63). Bidgell's lawyer stated that if the government acquiesced to a protective order, then Bidgell would testify, but in light of the government's opposition he would assert his Fifth Amendment right if questioned (RT II:64-65:74;81).
The defendant requested the district court sign an order of immunity or a protective order (RT II:71). If the district court would not do that, defendant wanted to call Bidgell to assert the Fifth Amendment before the jury, and to call the investigator as a witness to put the statements into evidence (RT II:69). The district court stated that it would not sign an order of immunity nor would it allow Bidgell to assert the Fifth Amendment in front of the jury (RT II:71;76). The district court did, however, continue to try to convince the government that a protective order was "the way to go" (RT II:86;89). The district court felt this was a "terrible problem" (RT II:90). The district court reserved a ruling on whether the investigator could testify (RT II:92).
After all the defense witnesses discussed above had testified, there was further discussion about Bidgell's statements. The district court stated that the investigator could testify that Bidgell said he shared the bedroom with defendant (RT III:3). The district court held that the investigator could not testify to Bidgell's statements that he would probably be indicted and that the drugs did not belong to defendant (RT III:3;11). The district court found these latter two statements did not have a requisite degree of reliability and would be prejudicial (RT III:3). The district court also held that the investigator could not point out Bidgell, who was in the court room (RT III:13-14). The district also stated that any witness unavailability instruction it would give would indicate that Bidgell was unavailable to both sides, although the district court thought this was a close issue (RT III:5).
The defense investigator, Benton Prock, then testified. Mr. Prock had received the case in mid-January, and had attempted to locate Bidgell at least ten times (RT III:25). Prock finally met Bidgell for the first time at the house on January 30, 1992 (RT III:16). Bidgell told Prock that Bidgell lived in the room with defendant prior to the search (RT III:17). Bidgell also told Prock that Bidgell shared the dresser with defendant and kept things in it (RT III:17).
Prock is the one who took the photographs of the bedroom that were introduced as defendant's exhibits (RT III:18). There were two beds in the room when he took the pictures (RT III:18). Prock did not even notice in the room a roll-away bed, that was folded up and covered with clothes (RT III:24).
At this first meeting between Prock and Bidgell, one of defendant's lawyers was also present (RT III:27). Even with the two beds in the room and the other belongings in the room, there was room for the three of them to walk around (RT III:27).
The defense also presented an expert witness, George Bonebrake. He had worked for the FBI for thirty-four years in the fingerprint division, and when he retired was in charge of the latent print section (RT II:113). Mr. Bonebrake testified that the paper bag in which the drugs were found was a good source from which to obtain fingerprints (RT II:116). The plastic ziplocs which actually held the drugs were also a reasonably good surface on which to find latent prints (RT II:117). The chests of drawers in the bedroom were also reasonably good surfaces for developing latent prints (RT II:118).
Finally, defendant introduced into evidence a District of Columbia Superior Court complaint from April 17, 1989 (RT III:29). The complaint charged Bidgell with carrying a concealed pistol and listed his address as the 270 53rd Street address (RT III:29).
D.The Closing Arguments
The government's closing and rebuttal arguments were devoted to discrediting the defense witnesses about whether Bidgell lived in the house at the time of the search. The government's theory was that the drugs belonged solely to defendant, and that Bidgell had nothing to do with them. In the rebuttal portion of its closing, the government focused on Bidgell's statement. The government stated:
And you know, let's think about Micah's statement for one minute, the statement that came in through the investigator. The evidence suggests that Micah, just like Mr. Xxxxx's mother, his sister, and his brother, the evidence suggests that he is a relative. And just like those other three witnesses, he has a motive to say something other than the truth, particularly when it's no sweat off his back.
All he did was say he lived there. He didn't say the drugs were his. You didn't hear that come out of the mouth of the investigator.
(RT III:89) (emphasis added).
The defendant immediately objected to this argument. The district court repeatedly told the government "You can't do that" and also stated, "You shouldn't have done that" (RT III:89-90). The district court stated that "the problem is that you're making it sound like that was the only thing he said." (RT III:91).
The district court asked the government to stipulate to what Bidgell said so the jury could hear the entire statement (RT III:91). The government resisted this and asked for a cautionary instruction (RT III:91). The defendant requested a mistrial from the time the remarks were made (RT III:90). The district court decided instead to strike the testimony and instructed the jury:
Ladies and gentlemen, I'm going to have to instruct you on something now. You know, sometimes when people get involved in discussions and arguments they get wrapped up in things. The only evidence that you have concerning Mr. Bidgell, concerning that room and what he said, was from that investigator. And his testimony was he says they shared the room and shared the dresser. And you can make whatever -- you can infer whatever you want from that.
But what you cannot infer is anything about Mr. Bidgell saying that -- or denying that these were his drugs. He is not available. And so I'm going to ask that you strike everything that Mr. Behre has said concerning whether he did or did not say those were his drugs. Do you understand what I'm saying?
The only testimony in evidence you have is the testimony of the investigator as to what Mr. Bidgell said concerning the -- that he lived in that room and shared -- it had a bed, and he shared the dresser, nothing else. And I don't want you to consider anything else that Mr. Behre said about Mr. Bidgell, okay. You got it? Thanks.
The defendant objected to two of the jury instructions. First, the defendant objected to the district court giving any definition of the term reasonable doubt, as well as specifically objecting to the second paragraph of the instruction (RT III:34-35). The district court rejected this argument and instructed the jury on the meaning of reasonable doubt:
I have said that the government must prove a defendant guilty beyond a reasonable doubt. The question naturally is what is a reasonable doubt? The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.
A reasonable doubt is not a caprice or whim; it is not a speculation or suspicion. It is not an excuse to avoid the performance of an unpleasant duty. And, it is not sympathy.
If, after fair and impartial consideration of all of the evidence you have a reasonable doubt, it is your duty to acquit a defendant. On the other hand, if after fair and impartial consideration of all the evidence you are satisfied of a defendant's guilt beyond a reasonable doubt, you may vote to convict.
Second, the defendant requested that the instruction regarding Count Two, distribution within 1,000 feet of a school, should include language that the government had to prove there was the specific intent to distribute within 1,000 feet of a school (RT III:37-38). The district court also rejected this request and instructed the jury:
Now, again, if, and only if, you find that the defendant is guilty of the offense of possession with the intent to distribute, you must go on to consider whether the defendant committed the offense within 1,000 yards of the real property comprising Richardson Elementary School, a public school.
It is not necessary for the government to prove the defendant had actual knowledge that he was located within 1,000 feet of a schoolyard, nor does the government need to prove that the school was in session. However, the government must prove that the defendant was in fact within 1,000 feet of the school property.
F.The Verdict and Aftermath
The jury deliberated for the afternoon of February 6, and morning of February 7, 1992, before finding defendant guilty of the charges (RT IV:23). The district court stated that it wanted to hear argument on defendant's motion for a new trial because it was not the ordinary case (RT IV:6). The government later dismissed Count One because it was a lesser included offense of Count Two (RT V:29).
Defendant filed a new trial motion and a renewed motion for judgment of acquittal, including most of the issues raised on this appeal. The district court ultimately denied both motions. Before doing so however, the court stated that it was a "tough issue" regarding admissibility of Bidgell's statements (RT V:10). The district court believed the government should have agreed to a protective order, because it left a cloud over the case (RT V:19-20). The district court also stated that the government went beyond what it should have said in closing argument (RT V:15).
The district court then sentenced defendant to imprisonment for a term of 120 months, the mandatory minimum, to be followed by sixteen years of supervised release (RT V:25). The district court thought it was a "horrendous sentence" for a case that warranted far less and was "off the charts" and clearly in excess of the proper punishment (RT V:21-24).
SUMMARY OF ARGUMENT
Defendant contends that he is an innocent person, who was wrongfully convicted because of errors committed during the trial. As an initial issue defendant contends that even with the trial the way it was, the evidence was insufficient to sustain the conviction because there was nothing other than defendant's mere presence to connect defendant with the drugs. Resolution of this argument in defendant's favor would make the other issues moot.
As other issues, defendant contends the district court improperly excluded, under Fed.R.Evid. 804(b)(3), exculpatory statements made by a third-party declarant. Defendant also asserts the district court's definition of reasonable doubt was improper and unconstitutionally diminished the burden of proof. Defendant also argues that misconduct by the government in the rebuttal portion of its closing argument requires a new trial. Finally, defendant contends the district court improperly instructed the jury with respect to the elements of Count Two, possession with intent to distribute within 1,000 feed of a school.
I.THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION
Defendant recognizes the heavy burden he faces in challenging a conviction on sufficiency of the evidence grounds.
In assessing the substantiality of this evidence, we begin by recognizing that "[t]he standard for overturning a guilty verdict on the grounds of insufficiency of evidence is . . . a demanding one." Accordingly, we will not reverse a conviction in such a case unless, reviewing the evidence in the light most favorable to the Government, a reasonable jury "could not have found guilt beyond a reasonable doubt."
United States v. Chun-Yin, 958 F.2d 440, 443 (D.C. Cir.), cert. denied, 112 S.Ct. 3010 (1992)(citations omitted). This court has recently addressed sufficiency of the evidence questions in three similar cases.
In United States v. Morris, No. 91-3151 (D.C. Cir. October 9, 1992), the court upheld the conviction of a defendant found sitting on a couch in a one-bedroom apartment where a search warrant was executed. Two guns were under the cushions of the couch, and a third was in a nightstand in the bedroom. Slip op. at 2. In an air duct in the ceiling of the bedroom the police found two ziploc bags containing 15.7 grams of crack cocaine in 100 smaller ziploc bags, $500 in cash, razor blades, and empty ziploc bags. Id. In the bedroom there were two birthday cards and in a hall closet a receipt, all with defendant's name on them. Id. Two police officers testified that the defendant told them at the time of the search that he had been living there for three or four weeks. Id. at 3. There was expert testimony that "the apartment was a drug distribution center, where cocaine was repackaged for street sale." Id.
The defendant in Morris testified and denied that he had ever lived, or said he lived, in the apartment. Id. He claimed that he was visiting four friends who lived at the apartment and had arrived just before the police. Id. He disavowed any knowledge of the drugs and claimed to have left the cards there on a prior visit. Id.
The court found there was no evidence, other than his testimony, that anyone other than Morris lived in the apartment. Id. at 5. Because defendant was the sole occupant of the apartment there was a particularly strong inference that defendant had dominion and control over the contents of the apartment. Id. In reaching this conclusion, the court reviewed the legal requirements to determine constructive possession:
Possession, of course, can be either actual or constructive. Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing "dominion and control" over the items in question. United States v. Hernandez, 780 F.2d 113, 116 (D.C. Cir. 1986). Mere proximity to the item at the time of seizure is not enough; but proximity coupled with "evidence of some other factor--including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise" is enough to sustain a guilty verdict. United States v. Gibbs, 904 F.2d 52, 56 (D.C. Cir. 1990).
Id. at 4.
In the present case not one of the factors discussed in Morris is present. There were no guns or paraphernalia. There was no motive, evasive conduct, gesture implying control, or anything indicating defendant's involvement with drugs. The drugs were in a closed drawer in a closed bag, not in plain view. Defendant had no cash. There was nothing else to couple with his mere proximity to the drugs.
In United States v. Jenkins, 928 F.2d 1175 (D.C. Cir. 1991), the court examined the evidence upon which the owner of a house was convicted of various drug offenses. In Jenkins ninety-five grams of cocaine base and forty-eight grams of cocaine powder with a total value of over $24,000 were found in the house. Id. at 1177. Four rounds of .38 calibre ammunition were in a cassette tape case on top of a dresser in Jenkins' bedroom. Id. The kitchen contained plastic bags and a computerized scale on the counter; small rocklike pieces of cocaine on a cutting board; and small spatters in the microwave oven that tested positive for cocaine. Id. The government presented expert testimony as to the reasons drug dealers have firearms and that the spatters in the microwave were from making crack from a liquid mixture. Id. at 1177-78. The amount of cocaine base found was enough to make 600 bags of the weight customarily sold on the street. Id. at 1178.
The police discovered Jenkins' house after two undercover buys of drugs. The seller stated that he had partners. Id. at 1177. Before the second sale, the seller stated that he had to go get the drugs. Id. He went to Jenkins' house, returned with drugs, and went back to Jenkins' house after the sale. Id.
When the police went to the house, Jenkins and three men were present. Jenkins allowed the officers to search the house. Id. Jenkins testified that she left for work early and came home late and that she had never seen drugs or paraphernalia in her house. Id. at 1178.
The court found the evidence sufficient to sustain the verdict, "although just barely." Id. at 1179. The court found that the "most prominent" pieces of evidence were that "the house was hers and that she lived there." Id. at 1179. The drugs and scale in the kitchen were in plain view. Id. There were periods when Jenkins was home during which the seller indicated there were transactions. Id. The expert testimony provided reasons why drug dealers hide their drugs, other than to have kept them hidden from Jenkins. Id. Finally, the court found very important the ammunition found in Jenkins' bedroom in light of the expert testimony that guns and drugs go together. Id.
The court addressed the conviction of Jenkins' son in United States v. Eccleston, 961 F.2d 955 (D.C. Cir. 1992). When the police went to the house, Eccleston was standing in the open doorway, with a heavy jacket, with two or three other men. Id. at 956. Eccleston had no drugs, guns, or paraphernalia on him. Id. He did have $783 in cash, none of which was the marked money used in the two undercover purchases. Id.
Jenkins told the police that Eccleston lived in one of the bedrooms. Id. In that bedroom were found a 12-gauge shotgun shell, .38 caliber ammunition, and a scale on a closet shelf. Id. at 957. In an attic crawlspace accessible through the closet were a box of ziploc bags and three bags containing cocaine and cocaine base. Id. at 957.
There were photos of Eccleston in the room, some mail addressed to him, a nameplate with his name, and an astrological sign corresponding to his birth date. Id. There was a couch and television in the room, but no bed, and some men's clothing. Id.
Eccleston claimed he had moved out of the house several months earlier, and had just arrived to visit his mother the night of the search, and had nothing to do with any of the drugs or guns found there. Id. Eccleston's aunt testified that he had moved out of the house as indicated. Id. Eccleston's father, however, who did not live at the house, testified that Eccleston still lived at the house. Id. at 958. Several police officers testified that Jenkins said Eccleston lived there, and one police officer testified that Eccleston said he lived there. Id. at 960.
The court addressed the strength of the evidence against Eccleston in the context of assessing the prejudicial impact of erroneously admitted hearsay testimony. Although it is unclear, the court seemingly addressed the evidence only in that context, and not in the context of whether the evidence was sufficient to sustain the conviction. The court first stated that the "admissible evidence of Eccleston's guilt was even weaker than the quantum of proof we found `just barely' sufficient to sustain the verdict against his mother." Id. at 960. After reviewing the evidence the court then inexplicably stated that, "Although we judge the evidence linking Eccleston to the charged offenses sufficient to sustain the conviction, it was not more than barely so." Id. at 961. The Jenkins opinion called the evidence there just barely sufficient to sustain the conviction. The Eccleston opinion termed the evidence weaker, but then not more than barely sufficient to sustain the conviction. It is difficult to understand how evidence that is less than just barely is barely sufficient. In any event, defendant contends, for several reasons, the evidence in the present case is insufficient under any standard.
Defendant concedes he shared the bedroom with Bidgell, but contends that the drugs belonged to Bidgell alone. Everyone else who lived in the house testified that Bidgell shared the room. Bidgell himself admitted that he shared the room and dresser. There were no guns or paraphernalia found in the room. Bidgell had just left the room a few minutes before the police arrived, and did not come back after the search. The fact Bidgell did not come back to stay at the house is strong evidence of his guilty knowledge.
There was absolutely no evidence of any drug dealing taking place from or within the house or by defendant. No effort to obtain fingerprints was made. Of the two pieces of mail found in the drawer and addressed to defendant, one had no date and one was from 1987. Government's Exhibits 3 and 4. Mail to Bidgell was also found in the room, as well as papers belonging to defendant's mother. The clothes obtained for defendant to wear did not come from the drawer with the drugs. There was no evidence that the underwear in the drawer was of either the size or brand worn by the defendant.
The law in this circuit is clear that:
[T]here must be something more than mere presence at the scene of a criminal transaction. There must be some action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them. There must be something to prove that the individual was not merely an incidental bystander. It may be foolish to stand by when others are acting illegally, or to associate with those who have committed a crime. Such conduct or association, however, without more, does not establish the offenses here charged.
United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980) (emphasis in original). See also United States v. Martin, 483 F.2d 974 (5th Cir. 1973). In the present case, the government's best evidence against defendant amounted to nothing more than his mere proximity to the drugs which is insufficient, as a matter of law, to convict him of knowingly and intentionally possessing them with the intent to distribute them. United States v. Staten, 581 F.2d 878, 884 (D.C. Cir. 1978) ("Mere presence of the accused on the premises, or simply his proximity to the drug, does not itself enable . . . a deduction [of constructive possession]. Nor is mere association with another, standing alone, enough even when the other is known to possess the drug.") (footnotes omitted). See also United States v. Watkins, 519 F.2d 294 (D.C. Cir. 1975) (reversing conviction and holding insufficient evidence of constructive possession where accused was present on the premises sitting on the bed in a bedroom where drugs were found and police also found articles of women's clothing and rent receipts in the accused's name in the bedroom as well as books with the accused's name in a hall closet).
As explained by the Ninth Circuit in Delgado v. United States, 327 F.2d 641 (9th Cir. 1964), which involved drugs found in a night stand at the foot of a double bed shared by the two appellants in that case:
[I]t is pure speculation as to whether [one defendant alone, the other defendant alone] or both of them had possession [of the drugs found in the night stand]. No doubt one of them did; perhaps both did. But proof that does not give a rational basis for resolving the doubts necessarily present in the situation pictured to the jury in this case is not sufficient.
327 F.2d at 642. Likewise, in defendant's case, it was pure speculation for the jury to have found that he, as opposed to Bidgell or any of the other adults in the house, possessed the drugs in this case.
In United States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985), the Ninth Circuit reversed a conviction for possession of a firearm found during the search of a residence when the appellant "was not the only one residing there at the time the guns were found." The Ninth Circuit held that "[w]here . . . a residence is jointly occupied, the mere fact that contraband is discovered at the residence will not, without more, provide evidence sufficient to support a conviction based upon constructive possession against any of the occupants." Id. See also United States v. Rackley, 742 F.2d 1266, 1272 (11th Cir. 1984); United States v. Batimana, 623 F.2d 1366 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). Similarly, in United States v. Rodriguez, 761 F.2d 1339 (9th Cir. 1985), the court held that evidence that an accused was arrested in a motel room in which counterfeit money as well as other evidence of counterfeiting was found was insufficient to support a conviction. The Ninth Circuit explained that "[m]ere proximity to contraband, presence on property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession." 761 F.2d at 1341.
In the present case there was nothing more than defendant's proximity to connect him to the drugs. That is not enough under this court's decisions. Defendant contends that his case is identical to the Ninth Circuit cases. The doors to all the rooms in the house were open. Bidgell, or anyone else for that matter, could have kept the drugs there. Therefore, his conviction should be reversed on the grounds of insufficient evidence.
II.THE DISTRICT COURT ERRED IN REFUSING TO ADMIT ALL OF BIDGELL'S STATEMENTS
The district court refused to admit the two most crucial parts of Bidgell's statements to the investigator. These involved the fact that Bidgell knew the drugs did not belong to defendant and that Bidgell would probably be indicted. The defendant contended these portions of the statements were admissible under Fed.R.Evid. 804(b)(3), which provides, in pertinent part:
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
The most telling evidence that the statement was against Bidgell's interest and that Bidgell believed in the honesty of it was his belief that he would be indicted. Bidgell understood the statement to "subject him to ... criminal liability ...[such] that a reasonable man in his position would not have made the statement unless he believed it to be true." Fed.R.Evid. 804(b)(3). Bidgell's preoccupation with his potential criminal liability as a result of the statement was one "indicia of [its] trustworthiness." United States v. Fernandez, 892 F.2d 976, 981 (11th Cir. 1989), cert. dismissed, 495 U.S. 944 (1990). See also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence, ¶ 804(b)(3), p. 804-133 (1991) (citing Jefferson, Declaration Against Interest: An Exception To The Hearsay Rule, 58 Harv. L. Rev. 1, 17 (1944) ("[I]t is not the fact that the declaration is against interest but the awareness of the fact by the declarant which gives the statement significance")). Moreover, Bidgell's statements were corroborated by the government's own evidence, which included a receipt with Bidgell's name on it which the police recovered from the dresser in which the drugs were found. In United States v. Thomas, 571 F.2d 285 (5th Cir. 1978), the court reversed a conviction for the trial court's refusal to admit evidence of a co-defendant's statement against penal interest offered at trial on behalf of the accused. In Thomas, the Fifth Circuit explained that "[a] statement exculpating the accused and admissible under Rule 804(b)(3) does not become inadmissible merely because it tends to inculpate the [out-of-court] declarant." 571 F.2d at 289. The Fifth Circuit agreed that such statements may be offered "by the accused to exculpate himself." Id.
In addition, it was entirely proper for Bidgell's statement to be introduced through Mr. Prock. United States v. Benveniste, 564 F.2d 335, 341 (9th Cir. 1977) (statements made by out-of-court declarant to defense investigator implicating the declarant were admissible as declarations against penal interest, through the testimony of the defense investigator, even if statement did not "amount to direct confession of criminal responsibility").
A number of courts have held that precluding a witness from testifying that an out-of-court declarant made a statement inculpating the declarant and exonerating the accused, is reversible error. See, e.g., United States v. Slaughter, 891 F.2d 691, 696-98 (9th Cir. 1989), cert. denied, 112 S.Ct. 3053 (1992)(reversing conviction for failure to admit declaration relating to entrapment defense); United States v. Lopez, 777 F.2d 543 (10th Cir. 1985)(reversing conviction for trial court's failure to admit out-of-court declarations against penal interest); United States v. Brainard, 690 F.2d 1117 (4th Cir. 1982), cert. denied, 471 U.S. 1099 (1985); United States v. Atkins, 558 F.2d 133 (3d Cir. 1977), cert. denied, 434 U.S. 1071 (1978) (reversible error for the trial court to exclude a hearsay third-party admission to one of the offenses with which the accused was charged).
The Fourth Circuit in Brainard held that a statement by the out-of-court declarant that "`the [d]efendants are innocent'" was a declaration against penal interest since it was an implicit admission of the declarant's own complicity. 690 F.2d at 1123-1124. The court held that "the circumstances surrounding [the] statements provide the required corroboration." 690 F.2d at 1125. The Fourth Circuit explained that Rule 804(b)(3) "requires not a determination that the declarant is credible, but a finding that the circumstances clearly indicate that the statement was not fabricated." 690 F.2d at 1124. The statement need not be "a [confession] of criminal responsibility", but needs only to "`tend to subject' the declarant to criminal liability." United States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989), quoting United States v. Layton, 720 F.2d 548, 559-60 (9th Cir. 1983), cert. denied, 465 U.S. 1069 (1984).
In fact, with his statement, and the testimony of the defense witnesses, the government had more evidence against Bidgell than against the defendant. There is no doubt that had Bidgell been home rather that defendant, Bidgell would be the one on trial with the physical evidence exactly the same as it would have been against the defendant.
The district court found that the statements did not meet the requirements of the second sentence of the Rule. The district court did find that other parts of the statement were sufficiently trustworthy.
The excluded testimony was crucial to the defense. The entire defense was based on the fact that the drugs belonged to Bidgell, and his statement that defendant knew nothing of the drugs showed that they belonged to Bidgell, because he also admitted he lived in the room and used the dresser. Viewed in the context of the case and the entire statement, the statement was clearly against Bidgell's interest. The district court's parsing of the statement makes no sense because the statement as a whole was corroborated. Separating it and viewing each part in isolation, where the court has already found the statement sufficiently corroborated to let in parts of it is not consistent with Rule 804.
"The burden placed on the accused to corroborate should not be too high". Weinstein, et al., Weinstein's Evidence, at ¶ 804(b)(3), p. 804-133 (footnote omitted). "Certainly the requirement should be considered satisfied by evidence independent of the statement itself which tends either directly or circumstantially to establish a matter asserted by the statement, such as independent evidence of declarant's own guilt, including circumstantial evidence of opportunity and motive on the part of the declarant, and subsequent conduct suggesting his guilt." 4 David W. Louisell & Christopher B. Miller, Federal Evidence § 489, p. 1159 (1980).
In the present case, Bidgell had not gone back to the house to stay since the night of the search. When the investigator finally located Bidgell, his statements were always consistent. He had no motive to fabricate, as evidenced by his statement that he expected to be indicted. There was no reason to find parts of his statement trustworthy, but not others, when they were all part of the same consistent story.
In the instant case, the totality of the circumstances indicated that the statements were not fabricated. First, Bidgell made inculpatory statements to the defense investigator that he stayed in the same bedroom where the drugs were found and where defendant stayed; and on a second day, like the out-of-court declarant in Brainard, he stated unequivocally that defendant had no knowledge of the drugs the police found in the dresser. Implicit in that statement was Bidgell's admission that he knew the drugs were there and that they were his. It is especially noteworthy that Bidgell knew where the drugs were found. These facts made his out-of-court statements to the investigator inherently trustworthy. The incriminatory nature of the statements made them credible. Moreover, Bidgell's statements to the investigator that he knew he would be indicted reflected his state of mind and his awareness that he was subjecting himself to criminal liability by making the statements. See also United States v. Woolbright, 831 F.2d 1390 (8th Cir. 1987) (admitting statement against penal interest against the accused during government's case).
In the context of ruling on the reliability of out-of-court statements made by a witness who was unavailable by virtue of his death, the Ninth Circuit articulated seven factors which bear on the reliability of an out-of-court statement. United States v. Layton, 855 F.2d 1388, 1405 (9th Cir. 1988), cert. denied, 489 U.S. 1046 (1989). The court listed those factors as being:
1. Whether the statement was made voluntarily;
2. Whether the statement was made contemporaneously with the
events it discussed;
3. Whether the declarant admitted acts against his penal interest or that likely would "bring him into disrepute;"
4. Whether the statement was corroborated;
5. Whether the declarant had personal knowledge of the matters discussed in the statement;
6. Whether the statement was made spontaneously;
7. Whether the person to whom the declarant made the statement was someone to whom he likely would speak truthfully.
855 F.2d at 1405 (citations omitted). It is significant that in Layton the accused was arguing that admission of the out-of-court statement by the deceased declarant violated his Sixth Amendment rights to confrontation and cross-examination. In the present case, the government objected to the introduction of the statements although the Sixth Amendment guarantees only the accused, and not the government, the right to confront and cross-examine. Moreover, in defendant's case, his Sixth Amendment right to present a defense was at stake.
Applying the Layton factors to the statements Bidgell made to the defense investigator in this case, it is clear that the statements were reliable and thus trustworthy under Rule 804(b). First, the statements were made voluntarily. One was made in Bidgell's own home in his room and the other was made in the court house. It was clear to him that the investigator working on behalf of defendant did not have the ability to prosecute him or to threaten him in any way. Second, although the statements were not made contemporaneously with the police searching the house on October 22, 1991, that would have been impossible because the testimony at trial established that Bidgell was not home at the time of the search and thereafter he ceased coming to 270 53rd Street, N.E. The fact Bidgell did not come back to the house further indicates his guilty conscience and his fear of being caught by the police, thereby heightening the credibility of his statements.
Third, as explained above, the statements were tantamount to admissions that Bidgell possessed the drugs because, like the statements in Brainard, they wholly exonerated defendant and expressed Bidgell's concern that he himself, would be indicted. 690 F.2d at 1117. Bidgell's statements were corroborated by evidence in both the government and the defense case. The receipt from the Ski Chalet in Bidgell's name recovered from the same room as the drugs corroborated his statement that he lived in the room. Moreover, that receipt was just as much evidence against Bidgell as the government had against defendant, who it prosecuted based merely upon his presence in the room where the drugs were seized and the existence of some mail matter in that same room. Fourth, several defense witnesses corroborated that Bidgell lived in the room where the drugs were found and one witness testified that he had left the house only minutes before the police arrived. Defendant introduced a criminal complaint filed against Bidgell, which listed his address as the 53rd Street address.
Fifth, Bidgell clearly had personal knowledge of the matters he addressed in his oral and written statements because it was established that he lived in the room, thereby suggesting that he would have knowledge of the assertions he made in his statements. Sixth, although Bidgell was asked about sharing the room and about whether he slept there and kept his things in the room where the drugs were found, his statement that he knew he would be indicted was spontaneous. Finally, the defense investigator was someone to whom Bidgell would speak truthfully. He knew that the investigator was simply investigating the case. He was not asked to lie or to fabricate and he had no reason to want to "curry favor" with the investigator. Cf. United States v. Garcia, 897 F.2d 1413, 1421 (7th Cir. 1990) (admitting hearsay statements inculpating the declarant). Unlike a police officer, an investigator working on behalf of defendant could do nothing to help Bidgell if he were ultimately prosecuted.
The failure to admit the statements was prejudicial in view of the fact there was so little evidence of defendant's guilt. The government's insistent efforts to exclude the evidence and to preclude the jury from knowing the full story show the importance of the evidence. It was "crucial evidence" that "deprived defendant of a fair opportunity to defend himself. `Few rights are more fundamental than that of an accused to present witnesses in his own defense.'" United States v. Slaughter, 891 F.2d at 698 (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).
III.THE DISTRICT COURT ERRED IN DEFINING REASONABLE DOUBT IN ITS INSTRUCTIONS TO THE JURY
The district court erred in giving any definition of reasonable doubt to the jury, after defendant had objected to the court's doing so. Even if it was proper for the district court to define reasonable doubt, the particular definition given in this case was improper. The error was of constitutional magnitude, as the instruction impermissibly lessened the government's burden of proof.
B. Defining Reasonable Doubt
At least two circuits have held that no attempt should be made to define reasonable doubt in the jury instructions. United States v. Hall, 854 F.2d 1036, 1039 (7th Cir. 1988); United States v. Woods, 812 F.2d 1483, 1487 (4th Cir. 1987). The Seventh Circuit reasoned that:
[A]t best, definitions of reasonable doubt are unhelpful to a jury, and, at worst, they have the potential to impair a defendant's constitutional right to have the government prove each element beyond a reasonable doubt. An attempt to define reasonable doubt presents a risk without any real benefit.
Hall, 854 F.2d at 1039.
The Fifth Circuit has also expressed its disfavor for definitions of reasonable doubt because, "Such attempts often result in using the term itself in the definition and serve only to confuse the concept in the minds of jurors." Thompson v. Lynaugh, 821 F.2d 1054, 1061 (5th Cir.), cert. denied, 483 U.S. 1035 (1987)(footnote omitted). The Ninth Circuit has approved a district court's refusal to define reasonable doubt, even when requested to do so by a defendant. United States v. Nolasco, 926 F.2d 869 (9th Cir.)(en banc), cert. denied, 112 S.Ct. 111 (1991). The Ninth Circuit stated that:
[W]e emphasize that the instructing court must ensure that any supplemental instruction does not detract from the heavy burden suggested by the use of the term "reasonable doubt" standing alone.
Id. at 873. The dissent in Nolasco noted that, "There is a real danger that a judge's novel formulation will diminish rather than emphasize the government's burden of proof, requiring reversal." Id. at 874 (Wiggins, J., dissenting).
When a party requests a definition of reasonable doubt, at least two circuits require one be given, although these cases are much older. See Friedman v. United States, 381 F.2d 155, 160 (8th Cir. 1967); Blatt v. United States, 60 F.2d 481 (3d Cir. 1932). Defendant recognizes that this court has approved as "exemplary" a definition of reasonable doubt given to a jury. Moore v. United States, 345 F.2d 97, 98 & n.1 (D.C. Cir. 1965). There is no indication in Moore, however, as to whether the defendant objected to a definition of reasonable doubt.
The modern, enlightened view is that a district court should not attempt to define reasonable doubt. This is especially so where a defendant requests that no definition be given, because it is a defendant's due process right that is at issue in not being convicted except upon proof beyond a reasonable doubt. See Cage v. Louisiana, 111 S.Ct. 328, 329 (1990). Furthermore, "all of the empirical studies show juror comprehension of pattern instructions to be so low as to be dysfunctional." Walter W. Steele & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N. C. L. Rev. 77, 99 (1988). "Reasonable doubt" is one of the "inherently general" legal terms which it is dangerous to attempt to define. Id. at 100.
C. The Definition in the Present Case
The district court in the present case fell victim to the concerns expressed above in defining reasonable doubt. The definition came primarily from the "Redbook," an archaic set of jury instructions often used in the District of Columbia. In addition to his objection to any definition at all, defendant specifically objected to the second paragraph of the district court's instruction, which contained the language:
A reasonable doubt is not a caprice or whim; it is not a speculation or suspicion.
The origin of this language is unclear, as it is not contained in the Redbook instruction 2.09.
In Cage v. Louisiana, the Supreme Court stressed the importance of the reasonable doubt standard as being, "Among other things, . . . a prime instrument for reducing the risk of convictions resting on factual error." 111 S.Ct. at 329 (quoting In re Winship, 397 U.S. 358, 363 (1970)). In Cage, the Supreme Court reversed a conviction because the reasonable doubt definition was contrary to the standard "articulated in Winship." 111 S.Ct. at 329.
The second paragraph of the instruction given in the present case contains the same infirmity. Webster's Third New International Dictionary (1986), defines "speculation" as "a view, conclusion, opinion, or decision based on thought or attained by reasoning." One of the other meanings listed for speculation is "a studious or profound consideration of some object or topic." The district court thus precluded the jurors from considering as a reasonable doubt one they reached based on thought or reasoning after studious consideration of the evidence. This clearly violated the standard of Winship.
The same dictionary defines "suspicion" as "imagination or apprehension of something wrong or hurtful without proof or on slight evidence." Thus, the district court also precluded as a reasonable doubt one that was based on slight evidence. In Cage, the Supreme Court found that the use of the terms "substantial" and "grave" to define a reasonable doubt "suggest[ed] a higher degree of doubt than is required for acquittal under the reasonable doubt standard". 111 S.Ct. at 329-30. In the present case, the district court precluded as a reasonable doubt one based on slight evidence, thus raising the standard to the level rejected in Cage.
As discussed above, defendant contends the evidence in this case was not only slight, but was insufficient to sustain the conviction. In this light, the reasonable doubt instruction was crucial. The district court's definition violated defendant's rights under Winship, and thus reversal for a new trial is required on this ground alone.
IV.THE PROSECUTOR'S MISCONDUCT IN CLOSING ARGUMENT WAS REVERSIBLE ERROR
The government vigorously opposed admission of any of Bidgell's statements. After being partially successful, it then purposely misrepresented to the jury what Bidgell said, knowing that those portions of the statement had been excluded at its request.
The government told the jury Bidgell had a motive to lie, "particularly when it's no sweat off his back." Yet Bidgell had specifically stated he would probably be indicted for his statement, thus it was hardly "no sweat off his back." The government also told the jury that Bidgell "didn't say the drugs were his." The district court, which heard the remarks, correctly stated that the government was "making it sound like that was the only thing [Bidgell] said."
The district court asked the government to let the jury hear the truth about what Bidgell said, to compare it to the government's statement. The government opposed the jury hearing the truth, content to rest on its misrepresentation.
The prosecutor was fully aware that Bidgell had all but explicitly said that the drugs were his by stating that he knew "for a fact and without a doubt" that the drugs did not belong to defendant and that Bidgell would probably be indicted for having made such a statement. The prosecution had vigorously fought admission of any of Bidgell's statements, expressing the view that they would be very prejudicial to its case.
In Berger v. United States, 295 U.S. 78 (1935), the Supreme Court explained the unique position of a prosecutor in a criminal case:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense a servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
295 U.S. at 88. Like the misconduct in the prosecutor's rebuttal closing in this case, in Berger the misconduct committed by the prosecutor included "assuming prejudicial facts not in evidence." 295 U.S. at 84. The prosecutor's rebuttal closing in the present case "contain[ed] improper insinuations and assertions calculated to mislead the jury." 295 U.S. at 85.
In United States v. Gaither, 413 F.2d 1061, 1079 (D.C. Cir. 1969), this court acknowledged "the obligation of the prosecutor to avoid making statements of fact to the jury not supported by proper evidence introduced during trial." The court set forth a three-part test to determine whether a prosecutorial misstatement was so prejudicial as to require a new trial:
The applicable test for prejudice is whether we can say, `with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.' The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.
413 F.2d at 1079. Without overruling Gaither, this court has also articulated the three relevant factors in deciding whether "improper remarks by the prosecutor have substantially prejudiced a defendant's trial [, as being]: the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks." United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985). See also United States v. Perholtz, 842 F.2d 343, 360 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988).
Applying either the Gaither or the Monaghan factors to defendant's case, it is clear that a new trial is necessary. The severity of the misconduct in this case is extreme. In light of the lengthy hearings at which the government sought to exclude Bidgell's statements, the government's conduct can only be characterized as deliberate and particularly outrageous. The prosecutor's remarks during the rebuttal closing surely prejudiced defendant's trial. From the government's perspective, the case was, at best, a close one, with only slight circumstantial evidence against defendant. Thus, in the words of the Monaghan court, defendant's conviction was far from a "certainty."
Second, the issue about which the prosecutor made the improper remarks was central to the case. There was no issue more central to the case than the identity of the possessor of the drugs. This is reflected by the fact that the government fought so hard to keep out Bidgell's statements and refused to grant any kind of immunity to Bidgell or to consent to the court issuing a protective order for his testimony. Indeed, defendant entered into a number of stipulations with the government regarding facts which the government otherwise would have had to prove, leaving only the ultimate issue of who possessed the drugs for the jury to decide.
Finally, the Court's instructions to the jury were inadequate to cure the prosecutorial misconduct. The dubious role of jury instructions in remedying trial errors is well recognized. See Berger v. United States, 295 U.S. at 85; United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985) ("`the naive assumption that prejudicial effects can be overcome by instructions to the jury' becomes more clearly than ever 'unmitigated fiction'"). The jury instruction in the present case "was insufficient to counterbalance the highly prejudicial" comment by the government, and the "district court abused its discretion when it denied [defendant's] mistrial motion." United States v. Eccleston, 961 F.2d at 962.
The ineffectiveness of the court's instructions in the present case is evident. The court told the jury to disregard the prosecutor's statement about Bidgell not saying the drugs were his. The court twice told the jury the only evidence about Mr. Bidgell's statements was that he had said he shared the room and the dresser. The whole issue and the defense, of course, was that the drugs belonged to Bidgell. The court's instruction in fact emphasized to the jury that Bidgell apparently said nothing about the drugs being his. This exacerbated, rather than alleviated the prejudice.
The prosecutor's remarks and the court's instruction were particularly prejudicial because they occurred during the rebuttal portion of the government's closing, when defendant had no chance to respond. The government spent almost all its rebuttal and much of the opening portion of its closing claiming that defendant's witnesses were not credible and that Bidgell did not live there at the time. Had the court admitted the entire statement of Bidgell that may well have made the difference in the case. What is especially unforgivable, however, is for the prosecutor falsely to tell the jury that no such statement was made. It is hard to think of a more prejudicial or misleading statement to the jury, when it focuses on the only real contested issue in the case.
Defendant contends, as he contended below, that the government having deliberately misled the jury, the jury should have been told the truth about what Bidgell said, or the district court should have granted a mistrial. That was the only way to cure the extreme prejudice from the prosecutor's action.
V.THE DISTRICT COURT SHOULD HAVE INSTRUCTED THE JURY THAT IT HAD TO FIND DEFENDANT INTENDED TO DISTRIBUTE THE DRUGS WITHIN 1,000 FEET OF A SCHOOL
Defendant requested that with respect to the charge involving 21 U.S.C. § 860(a), the instruction tell the jury it had to find defendant specifically intended to distribute the drugs within 1,000 feet of a school. The district court rejected this and told the jury that the government had only to prove the possession with intent to distribute within 1,000 feet of a school. The statute, § 860(a), provides:
Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or within 100 feet of a public of private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana.
One district court in this district has agreed with the interpretation of the statute urged by defendant in the present case. United States v. McDonald, 777 F. Supp. 44 (D. D.C. 1991)(Hogan, J.). Several other district courts have also interpreted the statute in this manner. United States v. Testa, 768 F. Supp. 221 (N.D. Ill. 1991); United States v. Coates, 739 F. Supp. 146, 152-153 (S.D. N.Y. 1990); United States v. Roberts, 735 F. Supp 537 (S.D. N.Y. 1990); and United States v. Liranzo, 729 F. Supp. 1012 (S.D. N.Y. 1990). Two courts of appeals have disagreed with these interpretations, and have agreed with the district court in the present case. United States v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992); United States v. Wake, 948 F.2d 1422 (5th Cir. 1991), cert. denied, 112 S.Ct. 2944 (1992). This court has found it unnecessary to decide the issue. United States v. Rogers, 918 F.2d 207, 213-14 & n.4 (D.C. Cir. 1990). In Rogers, the district court, in response to a question from the jury, instructed it that there had to be the intent to distribute within 1,000 feet of a school. Id. at 213.
In the present case there was no evidence of any distribution by the defendant anywhere, never mind within 1,000 feet of a school. There was no evidence of any distribution from the house. Therefore, the issue is squarely presented.
The Supreme Court has recently restated that the rule of lenity requires construing an ambiguous criminal statute in the defendant's favor. United States v. Thompson/Center Arms Co., 112 S.Ct. 2102, 2110 (1992). Interestingly, while the Rodriguez court specifically criticized several of the district court opinions, it did not specifically mention any flaw in the McDonald opinion from this district.
Without repeating all the arguments fully set forth in the above cases, defendant contends that the statute in this case is ambiguous, and therefore the rule of lenity required that the district court instruct the jury as defendant requested. Defendant claims that his conviction on the § 860(a) violation should be reversed.
Defendant contends that the evidence was insufficient to support his conviction. Should the court reject this argument defendant contends his conviction was flawed by his trial not being fair in several respects. First, the district court erred in refusing to admit statement that exculpated the defendant. Second, the instruction on reasonable doubt impermissibly lessened the standard of proof. Third, the government's misconduct in closing argument requires a new trial. Finally, the instructions on the school count misstated the legal standard. Defendant contends that aside from the sufficiency of the evidence argument, which would require entry of a judgment of acquittal, the other errors are all of sufficient magnitude to require reversal by themselves. Even if the court determines that no one error alone is sufficient, however, "their cumulative effect [was] nevertheless . . . so prejudicial . . . that reversal is warranted." United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988). This is especially so in the present case given the scant evidence of defendant's guilt.
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W.
Washington, D.C. 20004
CERTIFICATE OF SERVICE
I hereby certify that two copies of Brief for Appellant and one copy of the accompanying Excerpt of Record for Appellant was on this 15th day of October, 1992, served by hand-delivery, upon John Fisher, Appellate Division, Room 4229, United States Attorneys Office, 555 Fourth Street, N.W., Washington, D.C. 20001.
A. J. KRAMER