No. 93-3161




xxxxxxx xxxxxxx,Defendant-Appellant.








The government contends that Mr. xxxxxxx's trial counsel failed in several respects to preserve his appellate issues. Given that trial counsel was operating under a clear conflict of interest throughout the trial, and twice sought to withdraw as counsel, any such lapse in representation amounts to ineffective assistance of counsel, regardless of prejudice. Cuyler v. Sullivan, 446 U.S. 335, 348-350 (1980). Unless this Court concludes, as Mr. xxxxxxx contends, that all appellate issues were fully preserved, this Court should remand for an evidentiary hearing as to whether the conflict of interest adversely affected trial counsel's representation.

  In addition, the prosecutor had no basis for believing that Mr. xxxxxxx's hearsay reservation information would be admissible as "background" evidence, and she compounded her initial opening statement error by touting that inadmissible evidence in closing argument. The prosecutor's many references to facts never put in evidence -- particularly Mr. xxxxxxx's "confession" that his money was "drug related" -- were sufficiently prejudicial to require reversal of Mr. xxxxxxx's conviction.

This Court should reject the government's contention that Rule 16, Fed. R. Crim. P., contains a loophole for nonverbal statements. Moreover, the suggestion that Mr. xxxxxxx's hanging of his head was non-testimonial and ambiguous should not be accepted when it is clear that the only reason the government ambushed the defense with that testimony was because it communicated a consciousness of guilt inconsistent with Mr. xxxxxxx's denial that he possessed any drugs in his sock.

Finally, Mr. xxxxxxx's challenge to the weight of the drugs allegedly seized from his sock was neither untimely nor speculative. To the extent the judge was surprised that the dispute had not been resolved before sentencing, he blamed the government -- not Mr. xxxxxxx -- for the delay. Mr. xxxxxxx raised a reasonable dispute to the chemist's data that was not based simply on the weight being "close to the line." When Mr. xxxxxxx's counsel could not reveal the basis for Mr. xxxxxxx's insistence that the weight was incorrect without violating Mr. xxxxxxx's attorney-client privilege and jeopardizing his appeal, the judge accepted the challenge without demanding to know its basis. The court's refusal to wait for the chemist was based on a legal misunderstanding as to the significance of the dispute, not on any finding that the dispute was not reasonable.



The government acknowledges that under Cuyler v. Sullivan, 446 U.S. 335, 348-350 (1980), "a defendant can establish ineffective assistance of counsel under the Sixth Amendment if he or she shows simply that a conflict of interest adversely affected the adequacy of the counsel's representation." Gov't Br. at 16-17. The government is wrong in stating that Mr. xxxxxxx is not alleging such ineffective assistance. In his opening brief, Mr. xxxxxxx made clear that he believed that his counsel had fully preserved his appellate issues, but to the extent she had not, such a lapse would establish ineffective assistance given the conflict of interest under which she was operating. See Appellant's Br. at 24 n.16.

In opposing Mr. xxxxxxx's appeal, the government has now argued several instances in which it claims defense counsel failed to preserve his appellate issues. Footnote To the extent that any of these alleged lapses have a "negative effect upon" Mr. xxxxxxx's appeal, it is Mr. xxxxxxx's position that they amount to ineffective assistance of counsel. United States v. Shark, 51 F.3d 1072, 1076 (D.C. Cir. 1995). Indeed, to the extent this Court agrees with the government that defense counsel failed to fully preserve the issues Mr. xxxxxxx has raised on appeal, he need not establish any prejudice to obtain relief under the Sixth Amendment. See Cuyler, 446 U.S. at 349-350 ("a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief").

The government argues that "nothing in the record suggests any conflict of interest affecting trial counsel's performance" and characterizes trial counsel's motion to withdraw as simply "based on difficulties in working with appellant" (Gov't Br. at 17). In fact, trial counsel renewed her motion to withdraw on the first day of trial upon learning that Mr. xxxxxxx had informed the district court in writing of his intention to file a complaint against her with Bar Counsel (8/3 Tr. 7-8). In addition to this clear conflict of interest, counsel informed the court that her relationship with Mr. xxxxxxx had "deteriorated to the extent that we are not really capable of holding a conversation with each other" (8/3 Tr. 12). Counsel's failure to move for mistrial or to seek to litigate the Miranda issue mid-trial, for example, may well have been the result of counsel's desire not to prolong her representation of Mr. xxxxxxx any longer than necessary. See 8/3 Tr. 8 ("Few things would delight me more, Your Honor, than to be excused from this case, to be perfectly frank about it").

To the extent that this Court cannot determine on this record whether the alleged lapses were linked to the conflict of interest, the Court should remand for a hearing on this issue. See United States v. Fennell, No. 93-3064, slip op. at 14 (D.C. Cir. May 5, 1995) ("When an appellant has not raised a claim of ineffective assistance of counsel before the district court, either in a motion for a new trial, pursuant to Federal Rule of Criminal Procedure 33, or in a collateral attack, under 28 U.S.C. § 2255, our general practice is to remand the claim for an evidentiary hearing.").


   A.The Prosecutor Had No Basis For Believing That The Hearsay Reservation Information Would Be Admissible As "Background" Evidence.

The government argues that the prosecutor was justified in assuming that the reservation information that led Investigator Cook to target Mr. xxxxxxx would be admissible as "background" information, citing cases upholding testimony that a defendant matched a criminal "profile," at least when admitted only as background information, not substantive evidence of guilt (Gov't Br. 17-19). Here, however, because Investigator Cook learned the background facts from a computerized reservation form, they were clearly hearsay. The prosecutor set out in her opening all the damning facts gleaned from the reservation form despite the fact that she had no witness prepared to lay a foundation for their admission under the business records exception to the hearsay rule. The government now makes the argument, admittedly not raised below (Gov't Br. at 19 n. 7), that the reservation information was not hearsay because, as "background" information, it was admitted not for the truth of the matter asserted, but merely to explain why Investigator Cook approached Mr. xxxxxxx. Footnote Although some courts have accepted this argument, this Court has not. In United States v. Hilliard, 569 F.2d 143 (D.C. Cir. 1977), the government had elicited police testimony suggesting that witnesses at the scene had named the defendant as the robber and this Court reversed -- despite the government's argument that the testimony was not hearsay, but merely "background" evidence offered to explain why the police had included the defendant's picture in their photographic array:

We reject this argument. There was no issue as to the presence of Hilliard's picture in the array, and therefore no occasion for any explanation. In any event, explanation of a photographic array cannot be allowed to repeal the hearsay rule.

See also United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994) (admission of police "background" testimony "questionable," but harmless); United States v. Freeman, 514 F.2d 1314, 1317 (D.C. Cir. 1975) (officer's testimony that witnesses said one of robbers was "Dickie" was inadmissible hearsay, not admissible to show why police went to defendant's house since hearsay "problem could have been avoided entirely simply by restricting the officer's testimony to a statement that he received certain information leading him to the address"), vacated on other grounds, 598 F.2d 306 (D.C. Cir. 1979); 2 McCormick, On Evidence § 249, at 104 (4th ed. 1992) ("[Officer's] testimony that he acted 'upon information received,' or words to that effect, should be sufficient [to explain background for his conduct]. However, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight; the likelihood of misuse is great.").

The district court appears to have adopted an approach similar to that suggested by McCormick -- allowing a very general description of how Investigator Cook came to approach Mr. xxxxxxx's sleeper, but not allowing introduction of the prejudicial hearsay details from the reservation form. The government claims that the trial court gave the prosecutor the green light to discuss anything on the reservation form in her opening (Gov't Br. at 18). But the court's ruling was very narrow: the prosecutor was to "stay away from" the reasons why the officers approached Mr. xxxxxxx's compartment (8/3 Tr. 76) with the exception that she could say that "they knew that the people occupying that room [had] purchased tickets in New York, and were on their way to Hamlet" (8/3 Tr. 77). See also 8/3 Tr. 76-77 ("I have no problem with you showing they were on the train, the train originated in New York, and your officer said at the suppression hearing and can say here that the printout showed that it originated in New York. He verified that they bought the tickets in New York."). Footnote

In any event, the government cannot claim that the prosecutor limited her use of the never-admitted reservation information to "background." The prosecutor spent almost two pages of her seven-page opening statement (8/3 Tr. 73-74, 78-85) and over three pages of her fourteen-page closing argument (8/5 Tr. 64-78) on the suspicious information that "alerted" Investigator Cook and caused him to "suspect that Mr. xxxxxxx was bringing illegal drugs into the District of Columbia" (8/5 Tr. 66, 64). This lengthy and detailed argument was clearly designed to do more than just give the jury background as to how Cook came to be at Mr. xxxxxxx's door -- a circumstance never challenged by the defense. It was designed to persuade the jury that Mr. xxxxxxx was a drug courier because his reservation information -- all hearsay -- matched the profile of a drug courier.

B.The Many Never-Proven Facts Prejudiced Mr. xxxxxxx's Case.


Used as it was, the reservation information was devastating to any defense that the drugs were left in the bathroom by a previous occupant and that the police were not telling the truth about finding drugs in Mr. xxxxxxx's sock. Likewise, far from being "fairly innocuous" (Gov't Br. at 20), the prosecutor's other references to facts never put in evidence "sufficiently prejudiced [Mr. xxxxxxx] to call for reversal." United States v. Gaither, 413 F.2d 1061, 1079 (D.C. Cir. 1969).

The improper reference to Mr. xxxxxxx being "unemployed" was extremely prejudicial, given the testimony of Investigator Cook that sleeping car accommodations are "a very expensive way of travel" (8/4 Tr. 13) and the prosecutor's reference in opening to the excluded hearsay information that Mr. xxxxxxx "had paid $163 extra for the use of that sleeper car" (8/3 Tr. 79) and had paid "cash" for his ticket (id.). The fact that Mr. xxxxxxx had an unexplained source of cash did not just add a "minor detail" to the government's case (Gov't Br. at 20), but rather dealt another serious blow to Mr. xxxxxxx's position that he was not a drug courier.

Most devastating, though, was the prosecutor's statement to the jury that Mr. xxxxxxx had said to Mr. Parsons during the booking process, "They'll keep the money because it's drug related" (8/3 Tr. 83) (emphasis added). Footnote The government argues that this "isolated remark" (Gov't Br. at 21) did not unduly prejudice Mr. xxxxxxx because "[a]t the time appellant spoke these words, the police had recovered drugs and arrested appellant and his companion" and "[t]he logical conclusion that the police would assume that money taken from appellant was drug-related did not necessarily reflect an admission of guilt" (Gov't Br. at 20). First, of course, Mr. xxxxxxx disputed that the police had recovered drugs from his person. Moreover, the statement quoted by the prosecutor was not, "They'll keep the money because they'll claim it's drug related." The prosecutor told the jury that Mr. xxxxxxx had said that the money was "drug related." Nothing could be as "central" to the issues in a drug possession case as the defendant's confession that his money is "drug related." Compare Gaither, 413 F.2d at 1079-80 (prosecutor's misstatement of evidence harmless error where case was not close, facts misstated did not bear on central issue, and the court contemporaneously instructed the jurors that their recollection of the evidence would control).

The government is wrong in arguing that this case was not close. In fact, the government's case hinged almost entirely on the credibility of one police witness -- Investigator Cook. Footnote The government's suggestion that the prosecutor simply "forgot" to elicit Detective Lyles's observation of the alleged seizure from Mr. xxxxxxx's sock "in the fluster over Lyles's hearsay account of what Cook told her" (Gov't Br. at 23 n.9) makes no sense. The two different stories offered by Lyles, compare 8/4 Tr. 210-211 (on direct: Cook told her he seized the drugs from Mr. xxxxxxx's sock) with 8/4 Tr. 221 (on cross-examination: she saw Cook seize the drugs from the sock), were plainly inconsistent since there would be no reason for Cook to tell her where the drugs had come from (and no reason for her to be so eager to sneak in that hearsay) if she had personal knowledge of the source of the drugs. Lyles's credibility was destroyed when she blurted out hearsay in violation of the judge's directive not to repeat Cook's statement and then, when the judge instructed the jury to disregard that hearsay, changed her story on cross-examination and claimed personal knowledge.

The government's attempt to downplay the discrepancies in the descriptions of the substance supposedly seized from Mr. xxxxxxx's sock likewise fails. The government argues that "if the crack had been somewhat crushed, it may well have been a subjective question whether it resembled rock or powder" (Gov't Br. at 24). In fact, the drug was so fine and powdery that the government's original indictment alleged that it was powder cocaine, not crack (A. 14-15), and the government put on an expert witness to explain to the jury that using a microwave to make crack "gives it a powdery consistence as the regular cocaine powder" (8/5 Tr. 13). The widely varying descriptions of the substance allegedly seized from Mr. xxxxxxx's sock (see Appellant's Br. at 11 & n.6) therefore cast serious doubt on the government's case.

In light of the closeness of this case and the character and sheer volume of never-proven facts improperly put before the jury, the standard jury instructions given here were not sufficient to allow this Court to "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.'" Gaither, 413 F.2d at 1079 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). See id. ("We have not regarded the standard judicial caution that the jury's recollection controls as a cure-all for [prosecutorial statements not supported by the evidence]"); Jones v. United States, 338 F.2d 553, 554 (D.C. Cir. 1964) (reversing despite instruction that opening statements were not evidence).


The government urges this Court to find that "[n]onverbal conduct is one hole the [criminal discovery] rulemakers declined to fill" (Gov't Br. at 28), reasoning that "Rule 16 does not grant the defendant the right to discover all evidence relevant to motions to suppress" (Gov't Br. at 27). Mr. xxxxxxx never claimed he was entitled to "all evidence relevant to motions to suppress," simply any statement made by him that might be the subject of such a motion. The government concedes that disclosure of nonverbal statements "is certainly the better course" (Gov't Br. at 28). Indeed, any other interpretation of Rule 16 would mean that if the government asked a defendant "Did you do it?," it would be required to disclose to his counsel a "Yes" answer, but not an affirmative nod of the head. The government suggests no possible reason why Congress would create such a bizarre "hole" in the discovery rules.

This Court should reject the government's disingenuous suggestion that the nonverbal conduct at issue here might not qualify as "testimonial" because "putting one's head down does not necessarily reflect an intent to convey the actor's thoughts" (Gov't Br. at 29 n.13). Clearly, the government did not put this surprise testimony in evidence to show that Mr. xxxxxxx was "ang[ry]," "resign[ed]," "disgust[ed]," "fatigue[d]," or "collecti[ng] [his] thoughts" (Gov't Br. at 30). The government put this testimony in for one reason -- to show that Mr. xxxxxxx had confessed to Investigator Cook his shame concerning the drugs in his sock. This evidence obviously had an "impact on [Mr. xxxxxxx's] 'core defense theory at trial'" (Gov't Br. at 30, quoting United States v. Brodie, 871 F.2d 125, 130 (D.C. Cir. 1989)) -- that he had no reason to be ashamed because he never had any drugs in his sock. Footnote


The government argues that Mr. xxxxxxx failed to offer a timely objection to the weight of the drugs allegedly recovered from his sock (Gov't Br. at 34-37). In fact, defense counsel sought to have the drugs weighed before trial but was blocked by the DEA's refusal to release the drugs to a local laboratory and the district court's refusal to send the entire weight of drugs out of the jurisdiction (8/3 Tr. 10-11, S. Tr. 11-12). In reliance on the court's statement that drug weight would be "a significant issue . . . as to the sentencing phase" (8/3 Tr. 12), counsel stated that "should there be a sentencing date, then I would try to do that again" (id.). After trial, when the DEA persisted in its refusal to release the drugs, counsel took the only available option by subpoenaing the DEA chemist and his scales for sentencing. Contrary to the government's suggestion, the weight issue was not "capable of being resolved" without the presence of the chemist at the sentencing hearing (Gov't Br. at 33).

While it might have been better form to have given the court advance notice in writing that the weight dispute was still unresolved, the government was certainly aware of Mr. xxxxxxx's position and defense counsel may well have informed the probation officer of the unresolved dispute orally, as is permitted by Local Rule 311(a). Certainly there was nothing that the probation officer could have done to resolve the issue in advance of the sentencing hearing. Footnote In any event, the court's refusal to wait for the chemist was not based on a finding of untimeliness. Cf. Local Rule 311(f) ("The court, . . . for good cause shown, may allow a new objection to be raised at any time before the imposition of sentence"). While the judge was surprised to learn that the parties had not arranged an independent weighing before sentencing, once he heard how defense counsel's attempts had been thwarted, he held the government -- not the defense -- responsible for the delay. See S. Tr. 18 ("[Defense counsel] advised me that she attempted to do that and was unable to do it and attempted to use this method. All I'm saying is that the appropriate manner of conduct would have been [for the government] to assist her in getting into the DEA"). Footnote

     The government is incorrect that Mr. xxxxxxx "never proffered that a reweighing likely would show that the substance weighed less than 50 grams" (Gov't Br. at 38). At sentencing, counsel stated plainly that "[t]he defendant has been insistent that he believes the weight of the drugs is incorrect" (S. Tr. 9). When the court inquired as to the basis for that belief, counsel replied that she could not answer without violating the attorney-client privilege and undermining Mr. xxxxxxx's appeal (S. Tr. 10). The judge accepted that response and pursued the issue no further: "I'm not asking you to do that; I don't expect you to do that" (id.). Mr. xxxxxxx's belief that the weight testified to by the chemist at trial was incorrect can hardly be dismissed as speculative when the testimony was never cross-examined (because it was not relevant to any issue at trial) and when an in-court reweighing in a previous case in this district, cited by defense counsel (S. Tr. 12), had resulted in a more than 2% change in weight, putting the total just under the 5-gram line. See United States v. Wilkerson, 773 F. Supp. 479 (D.D.C. 1991).

The government's reliance on United States v. Garcia, 900 F.2d 571 (2d Cir.), cert. denied, 498 U.S. 862 (1990), is misplaced. In Garcia, the defendant did not claim that the chemist had inaccurately weighed the drugs, but merely argued that the accurate weight in "grains" might have been "rounded up" enough to put it incorrectly over the 250 milligram cutoff. Id. at 573-574. The Second Circuit rejected that argument after demonstrating that it was mathematically impossible for such rounding to have made the 9.3 milligram difference. Id. at 574-575. In Garcia, defense counsel argued that "it is only because the conversion places us so close to the boundary line that the issue arises." Id. at 573. Here by contrast, Mr. xxxxxxx in fact contested the accuracy of chemist's measurements. While his dispute with the chemist had relevance to his sentence only because the weight was "close to the line," that is not the same thing as claiming that "[s]imply being close to the line . . . create[d] a 'reasonable dispute'" (id. at 575).


For the foregoing reasons, as well as those stated in Mr. xxxxxxx's opening brief, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court for a new trial. Failing that, this Court should remand for a suppression hearing with respect to the nondisclosed statement Investigator Cook elicited from Mr. xxxxxxx through custodial interrogation. In addition, unless this Court concludes that all of Mr. xxxxxxx's appellate issues were fully preserved, it should also remand for an evidentiary hearing as to whether the trial counsel's conflict of interest adversely affected her representation of Mr. xxxxxxx. At a minimum, the Court should vacate Mr. xxxxxxx's sentence and remand the case to the district court for a new sentencing hearing.


Respectfully submitted,





Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant xxxxxxx xxxxxxx


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




Assistant Federal Public Defender


I hereby certify that two copies of the foregoing Brief for Appellant xxxxxxx xxxxxxx have been delivered by first-class mail to counsel for Appellee, John R. Fisher, Esq., and Elizabeth H. Danello, Esq., Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Washington, D.C., 20001, this 13th day of June, 1995.




Assistant Federal Public Defender