NO. xx-3211












As to matters not discussed herein, Mr. xxxxxxxxxxxxxx rests on his opening brief and on the pertinent arguments made in the subsequently filed opening brief and the reply brief of codefendant Gregory xxxx, whose appeal has been consolidated with Mr. xxxxxxxxxxxxxx's. (1)


This reply brief makes two points. First, this Court should reject the Government's suggestion that it was proved below that Mr. xxxxxxxxxxxxxx was living in the xxxx home the night he was arrested there. His prior inconsistent statement was introduced only for impeachment purposes. Second, the Government fails to distinguish the controlling case on the propriety of the missing witness charge and makes harmless error arguments that are fallacious.




As noted in Mr. xxxxxxxxxxxxxx's opening brief, he testified at trial that he had moved out of Jessie xxxx's home and into his mother's some seven or eight months before the night of the alleged offense, when police broke into the former premises and found him there (Brief for Appellant ("AB") at 13, 26). Mr. xxxxxxxxxxxxxx's claim that he was merely a guest at the xxxxs' on that occasion bears upon all his appellate arguments. Because he could have been, not a drug dealer based in that place, but a trusting and trusted customer who would buy nine $20 bags of crack there for his personal use, the evidence of intent to distribute was legally insufficient and the expert testimony on intent to distribute was unfairly prejudicial (see AB, Points I and II). Also, as the judge recognized temporarily (V 155), Derrick xxxx was not peculiarly available to Mr. xxxxxxxxxxxxxx, who was not a member of the xxxx household; the missing witness charge therefore was manifestly erroneous as to him (see AB, Point III).

In opposing Mr. xxxxxxxxxxxxxx's argument that the evidence was insufficient, the Government contends conclusorily that Mr. xxxxxxxxxxxxxx would not have bought nine separately packaged rocks for his own use and that he himself packaged the rocks, and it bolsters its position with the following assertions:

Moreover, just moments before his arrest, appellant xxxxxxxxxxxxxx was seated at the dining room table on which police discovered a videotape box containing paraphernalia commonly used to package crack cocaine for distribution (III-A 3A-19 - 20; IV 4-243 - 244). xxxxxxxxxxxxxx's denial that he lived in the house was impeached with an inconsistent statement that he made to the Pre-Trial Services Agency (V 5-61-62).

(Brief for Appellee ("GB") at 14). Obviously, this paragraph is placed and structured to suggest to this Court that Mr. xxxxxxxxxxxxxx did live in Jessie xxxx's home and participate fully in the drug distribution operation allegedly based there. Given the evidence as introduced and argued to the jury, this appellate suggestion is factually misleading and legally improper.

At trial, the Government did not attempt to prove by means of Mr. xxxxxxxxxxxxxx's alleged prior inconsistent statement that he was a resident in the xxxx home at the time of the events in question. The prosecutor did elicit the rebuttal testimony of Monica Spencer, a Pretrial Services officer, that Mr. xxxxxxxxxxxxxx had told her on the day of his arrest that he had "concurrent" addresses at 501 60th Street, Northeast (where he had testified he then lived with his mother (IV 236)) and at Jessie xxxx's place (V 61-62). But Mr. xxxxxxxxxxxxxx testified in surrebuttal that he had told Ms. Spencer that Ms. xxxx's home was his "previous" address and that he lived at his mother's on the date in question (V-B 2-4).

Even in his zeal, the trial prosecutor did not argue to the judge or to the jury that Mr. xxxxxxxxxxxxxx's alleged prior inconsistent statement was substantive evidence of his actual, ongoing residence with Ms. xxxx. Rather, the prosecutor referred to the statement in rebuttal argument as just one of a number of alleged inconsistencies that purportedly destroyed Mr. xxxxxxxxxxxxxx's credibility in general. (2) (Of course, Mr. xxxxxxxxxxxxxx denied that he possessed the nine bags, and he was not charged with constructive possession of the drugs found in the xxxx sons' bedroom.) It follows that, contrary to the Government's implication on appeal, this Court cannot properly reject Mr. xxxxxxxxxxxxxx's claims of insufficient evidence and error, or deem the errors harmless, by adopting the unproven premise that he lived in the xxxx home.



A. Mr. xxxxxxxxxxxxxx's counsel did not waive objection to the missing witness charge.

The Government suggests that Mr. xxxxxxxxxxxxxx's counsel either did not object or "waived" his objection to the issuance of the missing witness charge (GB at 27-28, n.16). This suggestion is transparently meritless. By urging the judge to read United States v. Pitts, 918 F.2d 197 (D.C. Cir. 1990) (V 146), where a missing witness charge in similar circumstances prompted reversal, counsel did more than was necessary to alert the judge to the impropriety of the instructions the Government requested. Counsel also argued repeatedly that Derrick xxxx was not peculiarly available to Mr. xxxxxxxxxxxxxx, and he asserted that the Government had not shown its inability to produce the witness and that the instructions would be "very prejudicial" to Mr. xxxxxxxxxxxxxx (V 146-147, 161-162). This case is very different from United States v. Whoie, 925 F.2d 1481, 1482 (D.C. Cir. 1991), cited by the Government, where the defense claimed for the first time on appeal that the jury charge was erroneous. It is true, as the Government points out, that Mr. xxxxxxxxxxxxxx's counsel did not state an objection to the judge's failure to keep her gratuitous promise to "distance" the missing witness instructions from Mr. xxxxxxxxxxxxxx (V 155). But that lapse (3) in no way suggested a waiver of Mr. xxxxxxxxxxxxxx's main objection, which clearly was that the instructions were completely inappropriate.

B. United States v. Pitts is not meaningfully distinguishable from the instant case.

The Government declares, "The critical distinction between Pitts and the instant case is that, in Pitts, as in Pennewell, the government's own theory coincided with that of the defense regarding the criminal culpability of the missing witness" (GB at 33). But such agreement was not the key factor in Pitts, where the Court wrote,

The critical consideration is that Polk clearly had a Fifth Amendment privilege against testifying. Polk's relationship to the transactions, together with defense testimony implicating him in the offenses, leaves no doubt on this score. The prosecution itself told the jury that Polk jointly participated in the crimes. . . .

918 F.2d at 200. The concurrence of the defense and prosecution theories made the error especially patent in Pitts, but the Court's focus was on the "scant likelihood," under all the circumstances, that the absent witness would have testified favorably to the defense. Id. Accordingly, the Court ultimately stated the rule in broad terms:

For these reasons a defendant has no duty to produce a witness who, like Polk, could aid the defense only by incriminating himself. No inference of testimony adverse to the accused may be drawn from the absence of such a witness.


In addition to ignoring the unequivocal thrust of Pitts, the Government ignores certain facts here. As pointed out in Mr. xxxxxxxxxxxxxx's opening brief (AB at 36 n.10), Jessie xxxx had asserted her Fifth Amendment right not to testify before trial, and at the beginning of trial, the prosecutor himself acknowledged that because Derrick xxxx "lives in the premises and was prosecuted previously, as was -- along with his mother for drugs and a gun found in the location," he would need counsel for Fifth Amendment advice if called as a witness (II 6). Moreover, during the colloquy about the missing witness charge, Gregory xxxx's counsel advised the Court, without contradiction, that the Government still had cases pending against Derrick in Superior Court (V 144). Realistically, any evidentiary "elucidation" Derrick might have furnished at trial would only have been at the Government's behest, in return for favors the Government was able to grant in his cases.

The Government flouts reason, therefore, in arguing on appeal that it was unclear that Derrick xxxx had interests adverse to those of the defendants (GB at 34). And the argument admittedly goes even "further," to suggest to the Court that a witness's family ties "might cause a witness to give testimony that, although exculpatory to the family member on trial, would be inculpatory as to the witness himself" (GB at 34). That extremely hypothetical possibility does not fit the facts on record here, and it cannot serve as the foundation for a fair and practicable rule as to the appropriateness of missing witness instructions. Furthermore, of course, Derrick xxxx had no family ties to Mr. xxxxxxxxxxxxxx, so there is absolutely no ground for concluding that he might have testified favorably to Mr. xxxxxxxxxxxxxx.

C. The missing witness charge was not nullified by the judge's instruction, in response to the jury's question, that there was no evidence as to whether Derrick xxxx was available to the Government as a witness.

The Government argues that any error in the issuance of the missing witness instruction was rendered harmless by the judge's instruction, in response to the jury's question during deliberations, that there was no evidence as to whether the Government could have called Derrick xxxx as a witness (GB at 35-36; see VI 44, 50). This argument simply defies logic.

It is true, as the Government points out, that the judge initially instructed the jury they could not draw the adverse inference if the witness was "equally available to both parties" (VI-B 13). But it does not follow at all that the jury would have gathered from the judge's later instruction that "the condition precedent for application of the adverse inference allowed under the missing witness instruction had not been satisfied" (GB at 36). On the contrary, the "condition precedent" implied by the missing witness charge was the absence of proof of equal availability. Thus, the jury must have received the impression from the "clarifying" instruction that the lack of evidence as to Derrick's availability to the Government relieved them from considering how available he was to the Government, which left them free to draw the adverse inference if they found that he was at all available to the defendants. This substantially aggravated the risk of unfair prejudice due to the initial charging error.

The Government also argues that Mr. xxxxxxxxxxxxxx would not have been prejudiced by the missing witness inference because the drugs he was convicted of actually possessing were different from those Gregory xxxx was convicted of constructively possessing, and "[h]is defense had noting [sic] to do with Derrick xxxx and he made no claim that the drugs belonged to anyone else" (GB at 36-37). However, as the Government notes (GB at 36), Mr. xxxxxxxxxxxxxx claimed that Officer Regan mistakenly called him "Clean" as he displayed to him the nine bags allegedly found on Mr. xxxxxxxxxxxxxx's person. Mr. xxxxxxxxxxxxxx claimed that Derrick xxxx's nickname was "Clean," and he presented evidence that Derrick was the drug dealer in the xxxx household. That Mr. xxxxxxxxxxxxxx did not testify that Derrick xxxx owned the nine bags was consistent with Mr. xxxxxxxxxxxxxx's denial of possessing the drugs, but the jury could reasonably have concluded from all the defense testimony that, like the drugs in the bedroom, the bags might have been Derrick's. Mr. xxxxxxxxxxxxxx was necessarily prejudiced if the jury inferred from Derrick xxxx's non-appearance as a defense witness that he would have denied being known as "Clean" and dealing or possessing crack. (4)


For the reasons set forth above and in Mr. xxxxxxxxxxxxxx's opening brief and in the briefs for Gregory xxxx, the judgment convicting Mr. xxxxxxxxxxxxxx should be reversed and the case remanded with appropriate instructions.

Respectfully submitted,




Allen E. Burns

Assistant Federal Public Defender

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500


I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).


Allen E. Burns


I HEREBY CERTIFY that on January 4, 1995, two copies of the foregoing reply brief for defendant-appellant were served by United States Mail, first-class postage paid, upon the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.


Allen E. Burns

1. Mr. xxxxxxxxxxxxxx adopts and incorporates by reference, to the extent that they are applicable to him, the arguments made in Points II, III, and IV of Mr. xxxx's opening brief.

2. Let's talk about credibility now, That's the word that Mr. xxxxxxxxxxxxxx's counsel keeps using. Is he a credible person? Is there anything that he said in this courtroom under oath to you that he didn't say something different earlier? Every single topic. Let's go through them. [Objection overruled.] His address . . . .

3. Counsel's failure to remind the judge of her omission could not conceivably have been a deliberate tactic. Accordingly, even if the missing witness charge were deemed proper as to Mr. xxxx, it would have to be found plainly erroneous as to Mr. xxxxxxxxxxxxxx.

4. It should additionally be recalled that although Mr. xxxxxxxxxxxxxx and Gregory xxxx were charged with possessing separate portions of drugs, the Government's theory at trial, as presented in the expert testimony of Officer David Stroud and the prosecutor's closing argument, was that Mr. xxxxxxxxxxxxxx and Gregory xxxx were working together both to sell drugs and to mislead the jury (see VI 11, 13, 28-29, 31, 33-34). It must be presumed that this theory had an impact on the jury; the Government should not be permitted to disavow it now.