CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
The appellant, xxxxxxx xxxxxxx, and the appellee, the United States, are the only parties in this Court and were the only parties in the District Court.
Ruling Under Review
This appeal presents three issues. Relevant rulings by the District Court that are at issue in this appeal are:
1. The denial of the defendant's request for a specific instruction on identification. (Tr. V, 14; VI, 33-50).
2. The denial of the defendant's request for a specific instruction that mere presence is not equivalent to possession. (Tr. V, 14; VI, 33-50).
In addition, the defendant contends that in closing argument the Assistant United States Attorney improperly commented on the defendant's exercise of his privilege against self-incrimination. An objection to the argument was not entered by trial counsel, and thus the District Court did not rule directly on the matter.
This case has not previously been before this Court. There are presently no other related cases pending in this Court of which counsel is aware.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ISSUES PRESENTED FOR REVIEW
I. Whether the District Court erred in refusing to give the jury a specific instruction on identification, where the defense requested such an instruction and where the accuracy of the identification evidence was a major issue in the case.
II. A. Whether the District Court erred in refusing to instruct the jury that mere presence near contraband is not enough to establish possession, where the defendant specifically
requested such an instruction and his theory of defense was based on this principle of law.
B. If the defendant's request for a "mere presence" instruction did not encompass a request for the related
instruction that "mere knowledge" also is insufficient
to prove possession, whether the District Court erred in
failing to so instruct, sua sponte.
III. Whether the Assistant United States Attorney impermissibly
commented on the defendant's Fifth Amendment privilege against self-incrimination by speculating as to what the
defendant's answers would have been to certain questions and
by contrasting the hypothecated responses to those of a witness who "took the stand".
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA Appellee
xxxxxxx LEE xxxxxxx Appellant
BRIEF FOR APPELLANT
Jurisdiction of this appeal from the final judgment of conviction entered by the district court is conferred by 28 U.S.C. 1291. The appellant filed a timely notice of appeal.
STATEMENT OF THE CASE
I. THE PROCEEDINGS BELOW
On November 26, 1991 a grand jury sitting in the District of Columbia returned a two count indictment against the defendant. On March 3, 1992 a Superseding Indictment was returned. (A. 9). The defendant was charged with possession with intent to distribute cocaine base in Count one and the commission of that offense within 1000 feet of a school in Count two.
The defendant's trial commenced before the Honorable Dale E. Saffels on June 11, 1993. On June 15, 1993 the defendant was found guilty of both counts. (A. 7). He was sentenced on September 14, 1993 to a term of incarceration of seventy-eight months. (A. 11).
The defendant initially filed an untimely notice of appeal. However, his motion for leave to file the notice of appeal out of time was granted by the Honorable Joyce Green. (A.1). Accordingly, the defendant's appeal is properly before this Court.
II. The Evidence
The government's evidence was that two Metropolitan Police Officers began an extended observation of the defendant after encountering him on the street. At least one of the officers saw the defendant engage in interactions with third parties which the officer suspected were drug transactions. According to the officer he then observed one of the suspected buyers hold up an item he had received from the defendant and at that point the officer could see that it was a small white rock consistent with crack cocaine. After the defendant and two others left the scene in a car the officers put out a stop broadcast. The car was stopped shortly thereafter and a quantity of cocaine base was found in the trunk of the car.
The defense vigorously contested the officer's ability to make the claimed observations, cross-examining and introducing evidence concerning the time of night when these events occurred, the lack of adequate lighting in the area, the distance of the officers from the events, and the asserted inherent implausibility of the claimed observation of the single rock of crack cocaine. The defense position was that these conditions cast doubt on the officer's testimony and that there was no other evidence suggesting that the defendant was aware of what was in the trunk of the car.
a. The testimony of Officers Tuz and McNichol
The government's two principal witnesses were Metropolitan Police Officers Tuz and McNichol. Since Officer Tuz made the more crucial observations he was the first witness and his will be the primary testimony summarized here.
Officer Tuz testified that sometime after midnight, "in the early morning hours" of November 3, 1991, he and his partner Officer McNichol were on foot patrol in the 2700 block of Langston Place S.E., when they encountered the defendant and another individual, later identified as a Mr. Savoy. (Tr.III, 3-5). After speaking briefly with the defendant and Savoy, the two officers continued on their patrol. They turned onto an adjacent street and positioned themselves, according to Tuz, approximately 30-60 yards from where they had seen the defendant. (Tr. III, 6-8).
From his vantage point Tuz observed several "suspects" individually approach the defendant. (Tr. III, 14). The defendant would then reach into the crotch area of his brown, one-piece "snowmobile suit", remove an "object", and transfer it to the "suspects". Id. A third individual then came into the area and joined the defendant and Mr. Savoy. (Tr. III, 16). Officer Tuz then observed the defendant go to the trunk of a 1963 Impala , take a white canister from his crotch area, and place it into a "brown object" in the trunk. (Tr. III, 16-17). The three individuals then got into the car with the defendant behind the wheel. (Tr. III, 18). At this point another person approached the car. The defendant got out, went to and opened the trunk, and pulled the white canister out of the "brown object". Id. After opening the canister, the defendant transferred something to the person who had approached the car. That person then held the transferred object up to a street light and at that time Tuz could see that it was a "light colored" substance consistent with crack cocaine". (Tr. III, 18-19). The individual transferred money to the defendant. Id.
Tuz and his partner then began to run toward the area where the defendant was located on Langston Street. As the officers approached, the defendant and his two companions drove off. (Tr. III, 20-21). Because they were on foot, the officers put out a call on the radio to stop a "white car" leaving the area. (Tr. III, 22). The car was stopped by other officers within moments and Tuz and his partner proceeded to the nearby location. (Tr. III, 25-26). When they arrived, the defendant was standing outside the car. Observing the keys on the roof of the car, Tuz took them and opened the trunk. Tuz saw a "brown snowsuit" in the trunk. Officer Tuz then found a white canister in the pocket of the snowsuit and in the same pocket a plastic cellophane bag with a large white, uncut rock. (Tr. III, 26). The vehicle was impounded and removed to the 7th District, where it was later searched . (Tr. III, 29, 31-32). A scale was found in the trunk. Some paperwork in the defendant's name and five hundred and sixty-nine dollars ($569) in currency were found in a compact disk player inside the vehicle. Id. The car was registered in the defendant's name. (Tr. III, 37). Much of the testimony concerned the ability, or lack thereof, of the officers to make these observations. Tuz stated that he was using binoculars (Tr. III, 8), and that the lighting was good, coming from floodlights on the back of the nearby church, lights in the church parking lot, and street lights. (Tr. III, 8,10). Defense counsel attempted to challenge Tuz' testimony by examining him closely concerning factors that called into question his ability to accurately observe, including the lack of adequate lighting, (Tr. IV, 9-15, 23-25, 39-40), the distance from which the observations were made, (Tr. IV, 17-18, 27-28), and the obstructions impeding the view Tuz would have had. (Tr. IV, 20-21).
Officer McNichol corroborated Tuz' account as to the initial encounter with the defendant on Langston Place, (Tr. IV, 50), and as to the events concerning the defendant's apprehension and the search of the vehicle. (Tr. IV, 54-57). McNichol had also observed the defendant through the binoculars from the observation post, but, unlike Tuz, had not seen the defendant engage in apparent transactions with third parties. (Tr. IV, 52-53). Again, the defendant's cross-examination focused on the ability to observe, given the lighting conditions (Tr. IV, 65-72), distance (Tr. IV, 69), and obstructions (Tr. IV, 68).
b. The government's remaining evidence
The government's case primarily centered around the testimony of Officer Tuz, with the limited corroboration of his partner, Officer McNichol. The remaining evidence consisted of proof that the area where the defendant was seen on Langston Place was within 1000 feet of a school (Tr. IV, 83) and Officer David Stroud's testimony, after qualification as an expert, that the possession of 14 grams of crack cocaine is consistent with an intent to distribute. (Tr. IV, 110).
c. The defendant's evidence
The defendant began his case by continuing his attempt to discredit the officers' ability to observe the events to which they testified. Yolanda Fields, who lives in the 2700 block of Langston Place, where the events took place, contradicted the officers on the critical issue of the lighting of that area at night. Ms. Fields testified that the lights in the area, which the officers had testified provided sufficient illumination, were either non-existent (Tr. IV, 126-128), broken (Tr. IV, 128), or turned off at the time (Tr. IV, 129, 131).
The defendant's final two witnesses, William Herrion and Larry xxxxxxx, though present during some of the relevant events and thus able to offer testimony concerning those events, also testified concerning the lighting conditions in the area. Herrion testified that he had lived in the 2700 block of Langston Place most of his life and the area was not well-lit from street lights. (Tr. IV, 143-144). xxxxxxx, who had seen the defendant on Langston Place and who was with him when the car was stopped, offered similar testimony concerning the lack of adequate lighting. (Tr. IV, 159). Further, Herrion corroborated Yolanda Field's testimony concerning the lights on the church not being operable when the church is closed. (Tr. IV, 145).
William Herrion's testimony also contradicted Officer Tuz' testimony concerning the defendant's exit from the car and trip to the trunk after an individual had approached the car. Herrion testified that he had approached the defendant that evening, shortly before the defendant's arrest, and asked him for some change. The defendant got out of his car and went to the trunk to get the change. (Tr. IV, 147). Further, Herrion stated that he did not hold up any object and look at it. (Tr. IV, 148).
c. The Instructions to the Jury
Prior to closing argument the Court held a charging conference. Counsel for the defendant requested that Court give "a separate instruction concerning the issue of identification." (Tr. V, 14; A. 20). Further, defense counsel also requested "an instruction on mere presence at the scene of the crime does not indicate that the defendant is guilty." Id. The Court gave neither instruction. (Tr. VI, 33-50; A. 23-40).
d. The Closing Argument
During his rebuttal closing argument, the Assistant United States Attorney commented as follows on the fact that the drugs, scale, and money's presence in the car were unexplained:
I suppose the defense is suggesting that were we to ask Mr. xxxxxxx his response would be, I don't know how that scale got in my car. I don't know how this $500 got in my car. I don't know how these drugs got in my car. They just happened to be there.
It's not Larry xxxxxxx's money. He took the stand. He did not claim this money.
(Tr. VI, 32; A. 19).
SUMMARY OF ARGUMENT
The defendant does not challenge the sufficiency supporting the verdict. Officer Tuz clearly testified that he saw the defendant engage in what he suspected were drug transactions, place a canister in a "brown object" in the trunk of the car, and drive off. When the car was stopped, Tuz looked in the trunk and found the canister in a brown jumpsuit. A quantity of crack cocaine was found in the same pocket as the canister. If the jury believed Tuz, which their verdicts indicated they did, then the evidence was sufficient.
However, the defense strongly challenged the veracity of Tuz' claimed observations, both as to the conditions under which they were made, including the lack of lighting, distance, and obstructions, and the inherent incredulity of Tuz' claimed ability to observe an individual hold up a single rock of crack cocaine to a streetlight so that Tuz could see it from his vantage point some 30-60 yards away at night. In essence, the defense position was that Tuz' testimony concerning his alleged sighting of the defendant placing the canister in the "brown object" in the trunk was not credible and, in effect, merely tailored to coincide with the fact that the drugs were later found in that location. The issue of identification was further clouded by the fact that there was another individual on Langston Place, who was wearing a brown jumpsuit that night, and who was in the car with the defendant when it was stopped.
While this presented a classic question of credibility, the defendant was entitled to have the issue resolved under appropriate instructions from the court, fairly setting out his theory of the defense and delineating the principles of law applicable to and supportive of that defense. The trial court thus erred when it refused the defendant's request for a specific instruction on identification testimony. The issue of the identification testimony was the major issue in the case and challenging that testimony was the crux of the defense. Further, there was evidence supporting the conclusion that "special difficulties" were presented by the conditions under which the observations were purportedly made. Under these circumstances this court's authorities require that an identification instruction be given upon request by the defense.
The defendant was prejudiced not only in regard to the failure to give an instruction adequately guiding the consideration of the government's evidence, but also by the failure to directly instruct as to the defendant's theory of defense. The defendant, in effect, argued that he was merely present, as driver of the car, when the drugs were found in the trunk, and that there was no evidence, other than Tuz' "canister-brown object" testimony, linking him to the jumpsuit found in the trunk. The defendant therefore requested a "mere presence" instruction, asking the court to tell the jury that possession is not established by mere presence. Despite the fact that this language is included in the standard jury instructions for possession, the trial court omitted it from his charge. This, coupled with the related omission of the "knowledge is not enough" portion of the possession charge, substantially prejudiced the defendant and permitted the case to go to the jury without the requested instruction as to the defendant's theory of defense. The failure to give the requested theory of defense instruction, without adequate substitution, was reversible error.
Finally, the defendant raises an issue concerning the closing argument of the Assistant United States Attorney, where a strong allusion was made to the fact that the defendant had not testified, both by speculating as to what his answers might have been if he could have been asked certain questions, and by contemporaneously comparing those speculative answers with the testimony of a witness who did "take the stand." It is recognized that problems are presented from the appellate standpoint because an objection was not entered. However, under all the circumstances it is contended that the comment on the defendant's exercise of his Fifth Amendment privilege amounted to plain error.
I. The Court Erred in Failing to Give the Defendant's Requested Instruction on Identification
Prior to closing arguments defense counsel requested that the Court "give a separate instruction concerning the issue of identification." (Tr. V, 14; A. 20). Counsel requested the identification instruction contained in the "Red Book." The District Court denied this request.
The district court's instructions to the jury are reviewed de novo. United States v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993). The refusal to give an instruction requested by the defendant is reversible error where the requested instruction "1) is substantively correct; 2) was not substantially covered in the charge actually delivered to the jury; and 3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense." United States v. Taylor, 997 F.2d 1551, 1558, quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981).
Some circuits have taken the position that it is reversible error, per se, for the trial court to refuse an identification instruction, where requested by the defense. United States v. Anderson, 739 F.2d 1254 (7th Cir. 1984); United States v. Cain, 616 F.2d 1056 (8th Cir. 1980); United States v. Barber, 442 F.2d 517 (3rd Cir. 1971). Other circuits have strongly suggested that such an instruction is required where identification testimony is a main issue. United States v. Holley, 502 F.2d 273 (4th Cir. 1974); United States v. Dodge, 538 F.2d 770 (8th Cir. 1976). After canvassing its prior cases, this Court recently held that a special identification instruction is required only when "special circumstances" are present which cast doubt on the identification testimony in the case. United States v. Boney, 977 F.2d 624, 632 (D.C.Cir. 1992), quoting United States v. Brooks, 928 F.2d 1403, 1406 (4th Cir.), cert. denied, 112 S.Ct. 140 (1991). The determination of whether such "special circumstances" exist, is, in turn, informed by an analysis of the issue as decided in the prior cases in this Circuit.
In Salley v. United States, 353 F.2d 897 (D.C.Cir. 1965) this Court reversed the defendant's conviction in a narcotics case where the trial judge refused to give the defendant's request for an identification instruction. This Court reasoned that where a defendant was charged with distributing narcotics to an undercover officer and where the officer makes made numerous buys over a period of time, "[T]he possibility of error due to mistake and the fallibility of human memory is obvious." Id. at 898-899. Thus, where identification testimony is the heart of the government's case and "the only chance a defendant has to defend himself without accusing the officer of total fabrication is to raise in the jury's mind a reasonable doubt", id. at 899, the trial court, upon request, must specifically charge on identification.
Four years later in Macklin v. United States, 409 F.2d 174 (D.C.Cir. 1969) this Court again noted that trial courts should give an identification instruction where "identification is a major issue." 409 F.2d at 178. The recommended instruction was that set forth in "Criminal Jury Instructions for the District of Columbia" (1966), published by the Bar Association of the District of Columbia. The Macklin court did not reverse, however, because defense counsel had not requested such an instruction.
This Court again took up the issue in Telfaire v. United States, 469 F.2d 552 (D.C.Cir. 1972). Telfaire held that the failure to give a requested identification case was not error under the facts of that case. The defendant was charged with the robbery of a man in a hotel in the District. The victim testified that he observed the defendant in a face-to-face encounter in the hotel. The victim had an adequate opportunity to observe the robber and immediately reported the robbery to the police, who promptly apprehended the defendant, whereupon the victim made an on-the-scene identification. There is no indication in the opinion that any issue was raised as to conditions, such as lighting, distance, or obstructions, which would have affected the victim's ability to make an adequate identification. Under these circumstances there were "no special difficulties" that would necessitate a specific instruction on identification. Id. at 556. However, the Court did set out a model identification instruction in the Appendix and noted that a similar instruction, "with appropriate adaptations", should be given "unless there is strong reason in the particular case." Id. at 557.
In United States v. Boney, 977 F.2d 624 (D.C.Cir. 1992) this Court referred to the "major issue" test of Macklin, and the "special difficulties" language of Telfaire. Boney held that the failure to give the identification instruction was not error as the facts "presented no special difficulties" concerning the identification of Boney, where the undercover officer had purchased narcotics from the defendant shortly before his arrest.
Thus, the inquiry as to whether the court must give a requested identification instruction in a specific case is a fact-specific one, guided by an analysis of whether the issue of identification is a "major issue", United States v. Macklin, supra, or one where "special difficulties", United States v. Telfaire, supra, are present. Here, the identification of the defendant as the person whom Officer Tuz saw was a "major issue". The defendant's strategy centered entirely on calling into question the ability of Tuz to make the claimed observations. Defense counsel's cross-examination focused almost entirely on this issue both in the regard to Tuz, see (Tr. IV, 9-15, 17-18, 20-21, 23-25, 27-28, 39-40), and McNichol. See (Tr. IV, 65-72). The centrality of the identification issue was reinforced by the defense witnesses, all three of whom testified concerning conditions which would call into question Tuz' ability to make the observations claimed to have been made. See (Tr. IV, 126-31 (testimony of Yolanda Fields), 143-145 (testimony of William Herrion), and 159 (testimony of Larry xxxxxxx). Thus, the entire approach taken by the defense supports the view that the identification was indeed a "major issue" in this case.
The evidence also supports the view that "special difficulties" were presented by the identification evidence at issue. Although Tuz testified on direct that the lighting in the area was sufficient (Tr. III, 8-10) and did not retreat far from this position on cross, (Tr. IV, 9-15, 23-25, 39-40), there was evidence directly contradicting both officers' testimony in this regard. (Tr. IV, 126-128, 143-144, 159). Officer Tuz estimated that the distance from which the observations were made was from 30-60 yards, (Tr.III, 8), thus raising an issue as to the special difficulty presented by testimony based on observations from this distance at night. While, Tuz testified that he was using binoculars, the defense position was that, regardless, there was insufficient light in the area to illuminate the scene. (Tr. III, 22-23; IV, 71). Finally, an issue was raised concerning obstructions to the line-of-sight of the officers. (Tr. IV, 20-21, 68).
The defendant does not claim that the evidence was insufficient to support the identification testimony of Tuz. The jury could have believed Tuz' testimony that the lighting, distance, and obstructions, or lack thereof, did not affect his ability to observe the matters to which he testified. However, there was also contradictory evidence concerning each of these factors. Thus, there was evidence concerning "special difficulties" presented by the identification testimony, such difficulties arising from the lack of lighting at night, the distance, and potential obstructions to the view. These are the very factors to which the Red Book Instruction on identification evidence directs the jury's attention. Thus, in stressing to the jury that "circumstances of the identification of the defendant" must be convincing beyond a reasonable doubt, the instruction specifically directs consideration of:
The witness's opportunity to observe the criminal acts and the person committing them, including the length of the encounter, the distance between the various parties, the lighting conditions at the time, the witness's state of mind at the time of the offense, and other circumstances affecting the witness's opportunity to observe the person committing the offense that you deem relevant.
Criminal Jury Instructions for the District of Columbia, supra,
Instruction 5.6, Identification, p. 557 (emphasis added). The instruction is designed for precisely the type of situation presented by the facts of this case. Whether the analysis is in terms of the identification testimony as a "major issue" or in terms of whether there was evidence of "special difficulties", the result is the same. See United States v. Taylor, 997 F.2d 1551, 1559 (D.C. Cir. 1993)(reading above cases to require satisfaction of both the "major issue" and the "special difficulties" tests). The language of the identification instruction presupposes that "special difficulties" are present when there is evidence concerning either a short duration of time, a substantial distance between the parties, poor lighting, or other circumstances which could fairly be said to affect the witness' opportunity to observe.
In Telfaire this Court noted that the failure to give an identification instruction would "constitute a risk" and its use "should not be ignored unless there is strong reason in the particular case." 469 F.2d at 557. The failure to give the requested identification instruction was error where the identification testimony was a "major issue" in the case, there was evidence of "special difficulties" in regard to that testimony, and there was no "strong reason" not to give the instruction.
II. The Court Erred in Failing to Give the Defendant's Requested "Mere Presence" Instruction
A. Mere Presence
During discussions of the jury charge, defense counsel also requested that the court "give an instruction on mere presence at the scene of the crime does not indicate that the defendant is guilty." (Tr. V, 14; A. 20). The court did not charge the jury on mere presence. (Tr. VI, 33-50; A. 23-40).
The standard of review is the same as for review of the refusal to give the identification instruction, supra; that is, the district court's instructions to the jury are reviewed de novo. United States v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993). The refusal to give an instruction requested by the defendant is reversible error where the requested instruction "1) is substantively correct; 2) was not substantially covered in the charge actually delivered to the jury; and 3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense." United States v. Taylor, 997 F.2d 1551, 1558, quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981).
The defense never denied that the defendant had been driving the Impala car which was stopped and found to have drugs in the trunk. Further, the defense admitted that the defendant had been on Langston Place shortly before the car was stopped; however, the defense evidence was that, contrary to the testimony of Officer Tuz, the defendant was not engaged in distributing drugs that evening on Langston Place. (Tr. (IV, 146-147, 157-164). Thus, the defense theory was that Officer Tuz' testimony as to his observations on Langston Place was either fabricated, in part, or mistaken due to lighting, distance, and/or obstruction factors. Further, the fact that the defendant was driving the car when it was stopped did not indicate that he knew the contents of the "brown snowsuit" found in the trunk of the car. (Tr. IV, 45-46, 75 (nothing in snowsuit to indicate that the defendant was the owner)).
The defendant is entitled to an instruction on his theory of the case, even if the evidence in support thereof is "weak, insufficient, inconsistent, or of doubtful credibility." Heard v. United States, 348 F.2d 43, 49 (D.C. Cir. 1964); Tatum v. United States, 190 F.2d 612, 617 (D.C. Cir. 1951). Here, as noted, the defendant's theory was that his mere presence as driver of the car did not, standing alone, justify a finding of guilt. The court did give an instruction on actual and constructive possession, telling the jury that:
The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession. A person who although not in actual possession knowingly has both the power and the intention at a given time to exercise dominion or control over a thing either directly or through another person or persons is then in constructive possession of it.
The law recognizes also that possession may be sole or joint. If one person has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
You may find that the element of possession as that term is used in these instructions is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others.
(Tr. VI, 38). The pattern instruction found in the Red Book defines both possession as:
There are two kinds of possession: actual and constructive. A person has actual possession of something if s/he has direct physical control over it. [S/He has constructive possession of something when s/he does not have direct physical control over it, but knowingly has both the power and the intent at a given time to control it], [either by himself/herself or through another person].]
[Possession may be shared with one or more people.]
Mere presence near something or mere knowledge of its location is not enough to show possession. To prove possession, the government must prove beyond reasonable doubt that the defendant had actual or constructive possession of the _________, [alone or with someone else].
Criminal Jury Instruction for the District of Columbia, supra, (emphasis added). For some reason, inexplicable on the record, the court omitted the emphasized portion of the pattern charge. While making no mention of "knowledge is not enough" portion of the charge, the defendant did specifically request the "mere presence" language.
This Court has held that the failure to give a "mere presence" instruction, where supported by the evidence, is plain error even in the absence of a request by the defense. Cooper v. United States, 357 F.2d 274 (D.C.Cir. 1966); see also United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962). Other courts have held that the failure to give such an instruction is error when requested by the defense. United States v. Negrete-Gonzales, 966 F.2d 1277 (9th Cir. 1992); United States v. Manning, 618 F.2d 45 (8th Cir. 1980). Further, the refusal to give the "mere presence" instruction meets the three part test of United States v. Edelin, supra, for reversible error. First, the principle that mere presence in insufficient to show possession is correct as a matter of law. Second, an examination of the trial court's charge shows that this principle was not covered in the remaining portions of the charge. (Tr. VI, 33-50). Finally, as shown above, this principle concerned an important point in the trial and the failure to so instruct did seriously impair the defense.
B. Knowledge is not enough
Although defense counsel cross-examined in a manner so as to emphasize the lack of evidence of the defendant's knowledge of its contents, nevertheless, even if the defendant did know the contents of the jumpsuit, this would be insufficient, without more, to establish his guilt. See United States v. Davis, 562 F.2d 681, 689, fn. 9 (1977); United States v. Mathis, 535 F.2d 1303, 1306 (D.C.Cir. 1976); United States v. Palmer, 467 F.2d 371, 374 (D.C.Cir. 1972).
As regarding the "knowledge is not enough" portion of the pattern charge, it appears that this language is usually considered to go hand-in-glove with the "mere presence" language, see United States v. Garguilo, supra, and thus the defendant's request for the latter can fairly be said to include a request for the former. However, even if the defendant's "mere presence" request is deemed insufficient to cover the "knowledge is not enough" language, the failure to instruct the jury "that mere presence and guilty knowledge...would not suffice", United States v. Garguilo, 310 F.2d at 254, is plain error.
The standard for reversal for the failure to give the "knowledge is not enough" portion of the possession charge depends on whether this request can be said to be subsumed within that for the "mere presence" charge. However, even if not so included, Garguilo indicates that the failure to so instruct is plain error. This Court's rule is that the failure to give an unrequested instruction is plain error only if its "affect[s] a substantial right so that a miscarriage of justice would otherwise result." United States v. Lancaster, 968 F.2d 1250, 1254 (D.C. Cir. 1992). The defendant does not concede that the failure to instruct that "knowledge is not enough" would, in isolation, fail to satisfy the miscarriage of justice standard. However, an extended discussion of this point is unnecessary in light of the concomitant failure to give the requested "mere presence" instruction. The latter omission need not satisfy the plain error "miscarriage" standard, since the instruction was requested. Further, the omission of the "knowledge is not enough" language did result in a miscarriage when considered in conjunction with the fact that the "mere presence" language was also not given.
The court's failure to instruct the jury, upon the defendant's request, that his mere presence near an item was not enough to show possession was error. Further, even if the "mere presence" request did not subsume the related "knowledge is not enough" language of the possession charge, it was plain error for the court not to so instruct. The omission of both charges was further emphasized by the court's failure to give the requested identification instruction.
III. The Assistant United States Attorney Impermissibly Commented
on the Defendant's Exercise of his Fifth Amendment Privilege
The standard of review as to whether an argument violates a constitutional provision is de novo. See United States v. McConney, 728 F.2d 1195, 1203 (D.C. Cir. 1984). This Circuit will normally reverse on the basis of closing argument only where the prosecutor's argument was improper and where the argument substantially prejudiced the jury. United States v. Edelin, 996 F.2d 1238, 1243 (D.C.Cir. 1993), cert. denied 114 S.Ct. 895 (1994), citing United States v. North, 910 F.2d 843, 897 (D.C. Cir. 1990). In Griffin v. California, 380 U.S. 609 (1965) the Supreme Court held that the self-incrimination clause of the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instruction by the court that such silence is evidence of guilt." Id. at 615. There, the prosecution had argued that certain facts were only within the knowledge of the defendant and "he has not seen fit to take the stand and deny or explain." Id. at 611.
The Court advanced three reasons in support of its holding. First, such comment, in effect, impermissibly imposes a penalty for the exercise of a constitutional right. Second, the breadth of the privilege is diminished "by making its assertion costly." Id. at 614. Finally, an attempt to have the trier-of-fact draw a negative inference as to guilt from assertion of the privilege may often be misleading due to the myriad of reasons as to why a defendant may elect not to testify. Id.
Here, the defendant exercised his constitutional right not to take the witness stand. Griffin makes it clear that no adverse inference can be drawn as a result of the defendant's decision not to testify, nor can any comment be made upon this decision. However, the defendant's assertion of his privilege was indeed "costly", as the Assistant United States Attorney chose to directly comment on the defendant's assertion of his Fifth Amendment rights by speculating as to what his answers would have been had he testified and by then immediately contrasting the lack of testimony from the defendant with that of a witness who did "t[ake] the stand." (Tr. 32; A. 41). Ostensibly in response to the defense counsel's perfectly legitimate argument that there was no evidence that the scale or money found in the car belonged to the defendant, the prosecutor in his rebuttal argument stated:
I suppose the defense is suggesting that were we to ask Mr. xxxxxxx his response would be, I don't know how that scale got in my car. I don't know how this $500 got in my car. I don't know how these drugs got in my car. They just happened to be there.
It's not Larry xxxxxxx's money. He took the stand. He did not claim this money. The juvenile was sitting in the back seat. This money is sitting in the front seat next to Mr. xxxxxxx.
Id. The prosecutor thus commented on the defendant's exercise of his Fifth Amendment privilege in two distinct ways. First, he directly called the jury's attention to the fact that the defendant had not testified by saying, in effect, "if we could have asked the defendant", he presumably would have testified in the manner suggested by the prosecutor. While improper, this comment, standing alone, may not have been unduly prejudicial. However, the idea that the defendant had not testified was reinforced by the prosecutor when he immediately followed up with the argument that the money was not Larry xxxxxxx's and effectively contrasted the defendant's and xxxxxxx's situation by noting that xxxxxxx "took the stand." Again, in isolation, this remark may not have been understood to be a reference to the fact that the defendant did not take the stand. However, when read in conjunction with the immediately preceding speculation as to what the defendant might have said if he could have been questioned, the message was irresistible - xxxxxxx had taken the stand and testified that the money was not his, and the defendant had not.
A prosecutor may, in an unusual case, call the jury's attention to the fact that the defendant did not take the stand if such a comment is directly responsive to a misleading defense argument. United States v. Robinson, 485 U.S. 25 (1988)(defense had argued that the government had not given the defendant a chance to explain his side of the story). Here, however, the defense did nothing to invite such a response. Defense counsel's argument that there was no evidence showing the various items in the car belonged to the defendant was of the type found in most arguments. It was simply a statement assailing the strength of the government's case by emphasizing the lack of evidence. An argument that the government lacks direct proof of certain facts does not open the door for the government to respond by suggesting that the defendant could have testified as to those facts. See Griffin v. California, 380 U.S. at 610-611.
The test used to determine whether prosecutorial remarks constitute an impermissible comment upon the defendant's privilege against self-incrimination is "whether, in the circumstances of the particular case, 'the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" United States v. Williams, 521 F.2d 950,953 (D.C.Cir. 1975), quoting Knowles v. United States, 224 F.2d 168,170 (10th Cir. 1955). The comments need not be a direct reference to the defendant's silence if "the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Harris, 627 F.2d 474 (D.C.1980), quoting United States v. Williams, supra, 521 F.2d at 953; United States v. Monaghan, 741 F.2d 1434, 1438 ( Cir. 1984). As noted above, each comment, standing alone, had a tendency to naturally and necessarily be taken precisely in such a manner, and certainly when juxtaposed, as they were in the actual argument of the prosecutor. The remarks here go well beyond that those termed "perilously close" to an improper comment in United States v. Harris, supra, 627 F.2d at 476 ("there is no evidence one way or the other except the evidence the government has presented") or those upheld in other contexts. United States v. Monaghan, supra, 741 F.2d at 1438 (government evidence was "uncontradicted").
The above argument was error as a matter of law. The issue remains as to whether it was plain error, since the defendant did not object. This, in turn, requires the Court to determine whether the argument affected a substantial right in a manner so as to result in a miscarriage of justice. Citation to authority is not needed for the fact that the Fifth Amendment privilege against self-incrimination is a "substantial right", as is the protection against adverse comment thereon. Griffin v. California, supra; United States v. Barton, 731 F.2d 669 (10th Cir. 1984)(prosecutor's argument that certain facts were unexplained, where such explanation could only have come from the defendant, held plain error due to the substantial nature of the right violated by such comment). The determination of whether a miscarriage of justice resulted should be made not in isolation, but also in light of the deficiencies in the instructions to the jury that have been discussed above.
Because of the errors which occurred during the instructions and argument to the jury this Court should issue a mandate reversing this conviction and remanding the case to the District Court for a new trial.
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Robert L. Tucker
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing was on this 1st day of June, 1994, served by first-class, postage prepaid mail upon John Fisher, Chief, Appellate Division, United States Attorneys Office, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001.
Robert L. Tucker