CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), appellant, Joseph L. xxxxxxx, Sr., hereby states as follows:
A. Parties and Amici: The parties below were the defendant-appellant, Joseph L. xxxxxxx, Sr., and the plaintiff-appellee, the United States of America. They also are the only parties on appeal. There are no amici.
B. Rulings Under Review: In this appeal, appellant seeks review of the district court's denial of his motion for mistrial and dismissal of the case with prejudice, or alternatively to strike the witnesses' testimony, based upon destruction of Jencks material, specifically, the original notes of the government's two main witnesses against him. (A. 142-146, 10/11/94 Tr. 13-14).
Appellant also seeks review of the prosecutor's improper closing arguments in which he expressed his personal opinions and beliefs, attacked the defense strategy, argued that the defense witnesses were lying, and appealed to the jury's passions and prejudices. (A. 636-662, A. 691-709).
Appellant also seeks review of the district court's ruling at sentencing on February 10, 1995 (A. 736-798), memorialized in its written Sentencing Memorandum of February 22, 1995 (A. 799-809), that because Mr. xxxxxxx interposed a defense of entrapment to the sales of heroin alleged in the indictment, the Court lacked the authority to adjust his sentence downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, and that his offense level would be enhanced by two points under U.S.S.G. § 2D1.1(b)(1). C. Related Cases: This case has not been before this Court or any other court previously.
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
STATUTES AND RULES vi
JURISDICTION vi
ISSUES PRESENTED vi
STATEMENT OF THE CASE 1
Proceedings Below 1
Statement of Facts 2
A. The Evidence At Trial 2
1. The Government's Evidence 2
2. The Defense Case 4
3. The Jencks Issues: Destruction Of The Rough Notes By The Government's Main Witnesses
5
4. The Closing Arguments
B. The Sentencing Hearing 5
ARGUMENT 6
Summary of Argument 6
Discussion 7
I. Mr. xxxxxxx' Rights Under The Jencks Act Were Violated By The Destruction Of The
Government Witnesses' Rough Notes Once Those Notes Had Been Incorporated Into Typewritten
Reports . 7
A. Standard of Review 7
B. The Government Witnesses Admitted The Existence Of Material To Which The Defense Had A Right Under The Jencks Act. 9
C. The Incorporation Of The Rough Notes Into Later Reports Did Not Exclude The Original Notes From The Scope Of The Jencks Act. 13
D. The Routine Destruction Of Notes By The Drug Enforcement Administration Violated The Jencks Act
E. The Destruction Of The Notes Prejudiced Mr. xxxxxxx' Defense
II. The Government's Improper Closing Arguments Deprived Mr. xxxxxxx Of A Fair Trial
A. Standard of Review 17
B. The Prosecutor's Closing Arguments Deprived Mr. xxxxxxx Of A Fair Trial 18
III. The Trial Court Erroneously Believed It Lacked The Authority To Adjust Mr. xxxxxxx' Sentence Downward For Acceptance of Responsibility Because He Had Interposed A Defense Of Entrapment At Trial And Erroneously Applied The "Gun Bump" Under U.S.S.G. § 2D1.1(b)(1) 17
A. Standard of Review 17
B. The District Court's Ruling
C. The District Court Had The Authority To Adjust Mr. xxxxxxx' Sentence For Acceptance Of Responsibility Pursuant To U.S.S.G. § 3E1.1 Despite His Having Interposed A Defense Of Entrapment At Trial 18
IV. The District Court Erred In Applying The "Gun Bump" Under U.S.S.G. § 2D1.1(b)(1)
A. Standard of Review 17
B. U.S.S.G. § 2D1.1(b)(1) Did Not Apply To The Facts Of Mr. xxxxxxx' Case
CONCLUSION 21
CERTIFICATION OF BRIEF LENGTH 21
CERTIFICATE OF SERVICE 22
STATUTES AND RULES
Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), pertinent statutes, rules, and guidelines are reproduced in the Addendum to this brief.
JURISDICTION
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 Federal Rule of Appellate Procedure 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).
ISSUES PRESENTED
I. Whether the trial court erred in failing to strike the testimony of government witnesses whose rough notes were not produced under the Jencks Act because they were destroyed after they were used to write final reports.
II. Whether Mr. xxxxxxx was denied a fair trial by the highly improper comments of the prosecutor's closing arguments in which he expressed his personal opinions and beliefs, suggested that the accused had coached the witnesses to lie, and appealed to the jury's passions and prejudices.
III. Whether an entrapment defense is legally incompatible with "acceptance of responsibility."
IV. Whether the district court erred in applying the "gun bump" under U.S.S.G. § 2D1.1(b)(1).
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. xxxxxxxx
UNITED STATES OF AMERICA, Appellee,
v.
JOSEPH L. xxxxxxx, SR. Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
STATEMENT OF THE CASE
Proceedings Below
Joseph L. xxxxxxx, Sr., was arrested on March 28, 1994, and he was held without bond from the time of his presentment on that same date. On March 30, 1994, he was charged in a ten-count indictment with unlawful distribution of heroin on June 4, 16 and 30, and August 20, 1993, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts One through Four), with possession with the intent to distribute heroin on March 28, 1994, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C) (Counts Five and Seven), (1) with possession with the intent to distribute five grams or more of cocaine base on March 28, 1994, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B)(iii) (Count Six), with possession with the intent to distribute cannabis on March 28, 1994, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(C)(iii) (Count Eight), with possession of an unregistered firearm on March 28, 1994, in violation of 26 U.S.C. § 5861(d), (Count Nine), and with the use and carrying of a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Ten). (A. 1-5)
Mr. xxxxxxx proceeded to trial before the Honorable xxxxxxx A. Flannery on October 3-13, 1994. On October 13, 1994, the jury convicted Mr. xxxxxxx of the four sales of heroin in 1993 to the government's cooperating witness and to an undercover law enforcement agent, as well as of the March 28, 1994, possession with the intent to distribute heroin and possession of an unregistered firearm. He was acquitted of the March 28, 1994 possession with the intent to distribute over five grams of cocaine base, and use and carrying of a firearm during a drug trafficking offense. The government dismissed the possession with the intent to distribute cannabis charge after the jury was unable to reach a verdict on that count. (A. 23) Mr. xxxxxxx was sentenced on February 10, 1995, to concurrent terms of 84 months imprisonment on Counts One through Five and Count Nine, to be followed by concurrent terms of supervised release of three years on each count. (A. 6-10) A notice of appeal was timely filed on February 16, 1995. (A. 11)
Statement of Facts
A. The Evidence At Trial
1. The Government's Evidence
The government's case against Mr. xxxxxxx was based primarily on the testimony of undercover DEA Agent Lisa Somers and Brenda Hazel, a convicted cooperating witness and former drug addict with a blemished past. (2) (A. 64-67, A. 98-106, A. 388). Hazel made one purchase of heroin from Mr. xxxxxxx on June 4, 1993. Through Hazel, Somers met Mr. xxxxxxx and made three additional purchases of heroin from him (on June 16 and 30, and August 20, 1993). (A. 169-170, A. 173, A. 227-228, A. 332-334, A. 388, A. 519)).
The June 4 purchase was made by Hazel alone in the second-floor bathroom of a townhouse rented for her by the DEA and for which the DEA was paying $1025 per month. (A. 20, A. 114-115, A. 130, A. 152, A. 315-316(a)). During that transaction, Hazel bought 27.89 grams of heroin from Mr. xxxxxxx for $6500 and turned it over to DEA Agent Mark Ross, who was out on the patio of the townhouse posing as a friend of Hazel's. (A. 31-35, A. 86-87, A. 159-161). Although a video-camera had been installed, it did not capture the events in the bathroom as it was set up in the den and the bathroom door was closed during the transaction. (A. 39-40, A. 87, A. 151). Although there was a tape recording of a telephone conversation between Mr. xxxxxxx and Hazel prior to the transaction, (A. 83-84), the only evidence of the transaction itself came from Hazel. (A. 151)
The June 16 purchase of 28.02 grams of heroin for $6500, was made by Hazel, again in the bathroom of the town-house the DEA rented for Hazel, with Somers present. (A. 89-91, A. 151-152, A. 161, A. 170-172, A. 223-227, A. 229-231). Although a video-camera had been installed in the bedroom, it did not capture the events inside the bathroom. (A. 161-162, A. 234-235, A. 336). Somers' body wire, however, did yield an audio tape recording of the transaction in the bathroom. (A. 225-226, A. 236-239, A. 318-324). Because it was controlled by the surveillance team, the audiotape did not begin until Mr. xxxxxxx, Somers and Hazel were in the bathroom. (A. 238-240) The conversation preceding the entrance into the bathroom to conduct the transaction, which Somers conceded was relevant to Mr. xxxxxxx' state of mind, was inaudible. (A. 321-322). Likewise, the phone conversation preceding the June 16 sale was not recorded. (A. 318-319).
The third purchase was made on June 30, 1993, in Somers' car which was parked near the Washington Marina. (A. 264-269). It had been preceded by two telephone conversations, according to Somers, although only one of the two yielded an audible tape recording. (A. 256-261, A. 269-270, A. 341-346). During the June 30 transaction, at which Hazel was not present (A. 587), Somers bought 49.56 grams of heroin from xxxxxxx for $11,000. Although Somers testified that she was wearing a recording device, the transaction was not captured on tape. (A. 269, A. 361-364). See also A. 396-397 (regarding Somers' body wire not functioning properly). There was no video recording of the transaction. (A. 367)
The final purchase occurred on August 20, 1993, at Fort Davis Liquors. (A. 396-397). Hazel was not present (A. 304), and the transaction was not captured on the audiotape Somers was wearing. (A. 298-299, A. 364, A. 396-397). The transaction was preceded by several phone calls by Somers to Mr. xxxxxxx. (A. 278-280, A. 284, A. 289, A. 293-296, A. 356-358, A. 361-362, A. 383-385, A. 388-392).
On March 28, 1994, a search warrant was executed at Fort Davis Liquors, a store owned by Mr. xxxxxxx' brother and which Mr. xxxxxxx was managing. (A. 504, A. 511). Mr. xxxxxxx was arrested at the scene. (A. 443-444). The search yielded, inter alia, some packets of heroin from a key case taken off Mr. xxxxxxx' person, (A. 447-449), and three weapons recovered from near cash registers at the store (A. 455-456, A. 457, A. 458), and one .22 caliber rifle from a safe in the office of the store. (A. 465) See also A. 620-621. Additional drugs were recovered from a red, white and blue jacket found in the store. (A. 461-463).
2. The Defense Case
Mr. xxxxxxx' defense was that he was entrapped into making the four heroin sales and that he did not possess with the intent to distribute the drugs seized on March 28, 1994 at the Fort Davis Liquors. He admitted possession of the weapons found at the store on March 28, but explained that they were for the protection of the store against robbery attempts. (A. 533-536). The jury acquitted Mr. xxxxxxx of the § 924(c) counts, apparently crediting Mr. xxxxxxx' explanation for the weapons.
Mr. xxxxxxx, who was 60 years old, a college graduate, and had no prior criminal record (A. 500-506), testified that the government's cooperating witness, Hazel, had implored him to help her get back on her feet after her release from prison (3) and that, after much resistance to her entreaties, he finally acquiesced. (A. 513-517, A. 521, A. 530, A. 542-545, A. 566, A. 577-578, A. 586, A. 633). He testified that, under the impression that she would re-sell it and thereby make some money while times were tight for her (A. 514, A. 577, A. 589-591), he reluctantly agreed to buy heroin for Hazel from a mutual acquaintance, based upon Hazel's representation that the acquaintance would not deal with her directly. (A. 516, A. 549-550, A. 554-556).
The government's witnesses admitted on cross-examination that it was Hazel and Somers who initiated all contacts with Mr. xxxxxxx and tried to get him to sell drugs out of Fort Davis Liquors and that his involvement was a matter of going along with what Hazel and Somers orchestrated. See A. 131, A. 134, A. 136, A. 152-153, A. 154-155, A. 157, A. 165, A. 167-169, A. 256-264, A. 305-306, A. 318-319, A. 324-327, A. 334-335, A. 349-350, A. 352, A. 353-355, A. 355-356, A. 375-376, A. 383-384, A. 389-391, A. 393-394, A. 395, A. 397, A. 400, A. 522, A. 525.
3. The Jencks Issues: Destruction Of The Rough Notes By The Government's Main Witnesses
Each of the government's main witnesses against Mr. xxxxxxx testified that they destroyed their rough notes, written closer in time to the events they described than the final written reports (A. 332, A. 406-410), once those notes had been incorporated into final typewritten reports. (A. 127-128, A. 139-145) (Brenda Hazel); (A. 313-315, A. 327, A. 351, A. 357, A. 396, A. 406-417, A. 434-435) (Somers); (A. 479-480, A. 493-494) (DEA Agent Brian Fitzpatrick). When the destruction came to light during cross-examination of Hazel, defense counsel moved for a mistrial and for dismissal of the case with prejudice. (A. 145). See also A. 216 (motion for mistrial based upon piece-meal disclosure of Jencks material). Alternatively, counsel sought to have Hazel's testimony stricken. (A. 145-146) Defense counsel renewed his motion for a mistrial on the grounds that the Jencks material was destroyed with respect not only to Hazel, but all of the government's witnesses. 10/11/94 Tr. 13.
With respect to Hazel's original notes the trial court ruled that the defense was "entitled to the original notes if they [were] available," (A. 142-143), but thereafter denied the request for a mistrial and dismissal of the case with prejudice. (A. 145-146)
With respect to defense counsel's renewed motion for mistrial on October 11, 1994, immediately before the defense case began, the district court denied the motion, stating that because the witnesses testified that their original notes were incorporated into the final typewritten statements, "it would be an extreme measure to dismiss the case on the basis of that." 10/11/94 Tr. 13-14.
4. The Closing Arguments
In his closing arguments the prosecutor repeatedly injected his own opinions of the defense case into the closing argument and suggested to the jury that the defense witnesses were lying and had been prepared in an unorthodox way. For example, referring to Eddie, who both Mr. xxxxxxx and his brother testified was an tax consultant who prepared tax returns at the Fort Davis Liquors, (4) the prosecutor stated:
You can take a look at all of this evidence that was taken out of that liquor store, and boy, I will tell you one thing. I have never seen more people run away from a coat than this coat that was loaded with drugs.I have never seen more people say, I don't know whose it is. You heard about the fictitious Eddie. You did not see Eddie come in and testify. You did not hear about any efforts made to subpoena him, did you? (5)
*****
. . . Of course his brother, who loves him, is going to come in and tell you about Eddie, the fictitious Eddie that belonged to this coat. I mean the brother couldn't even get it straight, could not remember what his last name was. I am sure they talked about it, but he had forgot it by the time he got to the stand.(A. 652-653)
In discussing the weapons and ammunition recovered from the Fort Davis Liquors, the prosecutor continued:
. . . Far be it from me, and I have never met in front of a jury and told them that selling liquor was [sic] a dangerous business in this city. Absolutely not. I am not going to sit here and argue to you the only reason those guns were in there was for drugs.I am sure that those guns may have been in there for one reason, and you did not hear me challenging on cross-examination this stuff about the danger of selling liquor and maintaining a business. I didn't try to say why didn't you try to put a plastic wall to deal with people. I did not try to do that.Look, no question. I agree. There probably was that reason, but it was there for another reason too . . .
(A. 654)
The prosecutor also improperly maligned the defense of entrapment during his initial closing argument:
You are going to hear the instructions. When you look at the evidence as to [the distribution] counts, it is a strong case. You are going to understand why the defense put on the defense they had.
(A. 657)
The picture is unmistakable. He was a drug dealer. He got caught, and he has only one
way to go. He is trying to slip through your fingers. You are the ones that are going to
tell him, no. You can't do this. You can't come in here with excuses. You are a drug
dealer. He is a danger . . .
(A. 661-662)
The improper attacks on the entrapment defense and the prosecutor's expression of his own opinion continued during his rebuttal closing:
The defendant could not say, it was not me who sold the drugs. He could not come in and say it was a guy dressed like me. These photographs of me getting into the car, that's not me. That is not my voice on the tapes. He couldn't say that.He could not say that. You would find him guilty in a second. He wanted to, on the stand, he wanted to say, Hey, that's not my voice. He kept trying to say that the DEA was probably fabricating some of that tape, messing with the tape, all of these inaudibles, or whatever. That is what he wants to say, because you could see him on the stand. He is trying to slip, slide, move this way, that way. These are not my drugs out of the liquor store.
Oh, no, she was begging and pleading. He could not say it was not me.What else could he
say? He could not say that these drugs are not heroin, aren't crack, aren't marijuana. The
DEA chemist found what these are. The defense didn't challenge that. They cannot say
that. He could not say I was in California or I was travelling. I was in Georgia. I was at
home visiting my family. He could not say that. He could not say somebody put a gun to my
head and told me they were going to kill me unless I sold these drugs, and say it was
duress.
No, the only thing he could say, the only thing he could say is the 'devil made me sell
those drugs.' The devil made me get those drugs and sell them. The devil, the Government,
Brenda Hazel -- I am the angel, Joe xxxxxxx. I can't say no. I am Santa Claus. I am the
angel. Brenda Hazel is the devil. Look at the money she got. Look at her past. That's what
they want you to think about. That's the only thing they can say.
What else did he say? We will get to how he said it. We will get to what evidence there is, and we will get to why there is not a shred of truth that he is claiming. You all weren't born yesterday. He is hoping to pu[ll] the biggest job ever seen. He is hoping that you will go back there -- you know. He is a deacon of his church. Joe doesn't have a criminal record. He is not a 'bad guy.' He's a victim. Let him go. Let's give him a hug and let him go. He told you he was abused by the government, a victim in this case. Let's talk about that. You know Joe xxxxxxx, and the defense, I am sure, would love all of this trial being about being a deacon of his church, working for civic organizations, and all the things he did in his past.
(A. 693-694)
The prosecutor also told the jury:
You are going to hear, and the only way he can portray himself as a victim, under the law, is say I was entrapped.
(A. 697).
Thereafter, the prosecutor not only improperly injected himself into the proceedings, but impermissibly appealed to the jury's passions and prejudices about drugs:
The second point is Joe is a victim, Joe the angel. That does not work. Why? Think about it like this.
You see this heroin? When this heroin, . . . hits the streets, and it is bought and used by people, it doesn't matter if the guy who sold it up on top of the ladder was a nice guy. It doesn't matter if he was a deacon in the church.
The victims are the families torn apart by this, people who cry and suffer because their son, daughter, family member, has a problem with drugs. The victims are the babies in the womb whose mother might use this stuff on the streets. Those are the victims, and not Joe. Don't say it is Joe. You have got to think about it like that. He is no more a victim than any other drug dealer. He may say to you, and he tried to say to you, and the defense is trying to say to you, he is a pillar of our community.I am going to tell you this. If he is a pillar of our community, we are in trouble, because no pillar of the community I know sells this stuff.
(A. 696)
B. The Sentencing Hearing
At the sentencing hearing, (A. 773-774), and in his previously submitted memorandum in aid of sentencing, (A. 715), defense counsel urged the court to adjust Mr. xxxxxxx' sentence downward under U.S.S.G. § 3E1.1, for his acceptance of responsibility. The district court, orally, (A. 774-775), and in a subsequent written memorandum, (A. 805), held that Mr. xxxxxxx' offense level could not be adjusted for acceptance of responsibility because he had proceeded to trial and interposed an entrapment defense. The court stated:
. . . I think the defendant never really confessed to the crimes in this case. He took the government to trial, put up a vigorous defense of entrapment, and I don't think under any stretch of the imagination he could be viewed as one who had accepted responsibility in this case. I just don't think that applies in this case.
(A. 774).
The defense also objected to an application of U.S.S.G. § 2D1.1(b)(1) to Mr. xxxxxxx' case. (A. 714-715, A. 766-770, A. 772). Explaining that the jury had acquitted Mr. xxxxxxx of the § 924(c) count and that the evidence was that the purpose of the guns had to do only with protection of the store, and not at all with drugs. Accordingly, the defense argued that U.S.S.G. § 2D1.1(b)(1) should not apply to Mr. xxxxxxx' case to enhance his offense level. The district court rejected those arguments. (A. 772-773, A. 803-804).
ARGUMENT
Summary of Argument
Mr. xxxxxxx' rights under the Jencks Act were violated when rough notes of the government's three main witnesses against him were destroyed after they had been incorporated into final typewritten reports. The destruction prevented Mr. xxxxxxx' from effectively confronting the witnesses against him.
Mr. xxxxxxx' right to a fair trial was abrogated by the prosecutor's highly improper closing arguments in which he played on the jury's passions and prejudices, expressed his personal beliefs and opinions, injected himself, almost as a witness, into the proceedings, and insinuated that Mr. xxxxxxx had encouraged a witness to lie.
Mr. xxxxxxx was eligible for an adjustment in his offense level for acceptance of responsibility despite the fact that he proceeded to trial and presented an entrapment defense. Moreover, the two-level "gun bump," under U.S.S.G. § 2D1.1(b)(1) should not have applied to Mr. xxxxxxx' case where none of the government's witnesses ever saw a gun nor heard Mr. xxxxxxx mention a gun during any of the heroin sales, and where the only testimony about the purpose of the guns in the store established that it was "clearly improbable" that they were "connected with the [drug] offense[s]." U.S.S.G. § 2D1.1 (Application Note 3).
Discussion
I. Mr. xxxxxxx' Rights Under The Jencks Act Were Violated By The Destruction Of The Government Witnesses' Rough Notes Once Those Notes Had Been Incorporated Into Typewritten Reports.
A. Standard of Review
Trial courts' rulings on Jencks issues are reviewed for abuse of discretion. United States v. Augenblick, 393 U.S. 348, 355 (1969); United States v. Miller, 771 F.2d 1219, 1229 (9th Cir. 1985); United States v. Singh, 628 F.2d 758, 765 (2d Cir.), cert. denied, 449 U.S. 1034 (1980); United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir. 1983), cert. denied, 465 U.S. 1029 (1984). See also United States v. North American Reporting, Inc., 740 F.2d 50, 54 n. 6 (D.C. Cir. 1984) (appellate court reviews district court's determination that notes were not "substantially verbatim" under the Jencks Act for its reasonableness), cert. denied, 474 U.S. 905 (1985).
B. The Government Witnesses Admitted To The Existence Of Material To Which The Defense Had A Right Under The Jencks Act.
The Jencks Act, 18 U.S.C. § 3500, requires the government to produce, upon the motion of the defendant, any "statement" of a government witness, "relat[ing] to the subject matter as to which the witness has testified." 18 U.S.C. § 3500 (b). Material is only producible under the Jencks Act once the government witness has testified on direct examination. 18 U.S.C. § 3500 (b). See also FED.R.CR.P. 26.2(a) ("After a witness...has testified on direct examination, the court, on motion of the party who did not call the witness, shall order the attorney [who called the witness]...to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness testified.") Each of the government's main witnesses against Mr. xxxxxxx admitted that there had existed notes pertaining to their direct testimony which had been destroyed after they had been incorporated into typewritten reports. See A. 127-128, A. 139-145, A. 313-315, A. 327, A. 351, A. 357, A. 396, A. 406-417, A. 434-435, A. 479-480, A. 493-494).
The Jencks Act defines a "statement" in several different ways. One definition is "a written statement made by [the] witness and signed or otherwise adopted or approved by him". 18 U.S.C. § 3500 (e)(1). See also Fed. R. Crim. P. 26.2 (f)(1). It is under this category that the various notes by Somers, Fitzpatrick and Hazel fell. Each of the witnesses made clear that they had "adopted" or "approved" the notes at issue.
In Clancy v. United States, 365 U.S. 312 (1961), the Supreme Court acknowledged that notes made at the time of an interview and memoranda compiled from those notes "[e]ach was a statement as that word is defined by the Act". 365 U.S. at 314 (footnote omitted). Similarly, in United States v. Bundy, 472 F.2d 1266 (D.C. Cir. 1972), the D.C. Circuit, applied the Jencks Act to rough notes taken by a police officer, during a witness interview, noting the danger that later reports written from initial notes will be "subconsciously influenced" by later developments in the case. 472 F.2d at 1267.
C. The Incorporation Of The Rough Notes Into Later Reports Did Not Exclude The Original Notes From The Scope Of The Jencks Act.
Although the witnesses' rough notes may have been incorporated into subsequent typewritten reports, those notes were nonetheless producible under the Jencks Act. In United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975), the Ninth Circuit addressed an issue strikingly similar to the case before this Court. In Johnson, the appellant challenged the trial court's refusal to consider certain material as potentially producible under the Jencks Act. The materials at issue were handwritten notes taken by a law enforcement agent who arrested and interviewed the accused after his arrest. The Ninth Circuit, while reserving for the trial court the initial ruling on the producibility of the notes, stated that the notes were likely covered by the Jencks Act. The court in Johnson ruled that the trial court erred in not considering the notes as producible under the Jencks Act and in stating that the later case report itself, incorporating those notes, satisfied the requirements of the Jencks Act. 521 F.2d at 1320. See also United Sates v. Vella, 562 F.2d 275, 276 (3rd Cir. 1977) (per curiam) (adopting D.C. Circuit's rule that rough notes of law enforcement agents be kept), cert. denied, 438 U.S. 1074 (1978).
D. The Routine Destruction Of Notes By The Drug Enforcement Administration Violated The Jencks Act.
Any destruction of the notes did not change their qualification for production under the Jencks Act. In United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), a panel of this court addressed this problem. In Bryant the accused moved for the production of a statement that was destroyed by the law enforcement officer. This court stated, "we hold that before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation." 439 F.2d at 651. "Otherwise, disclosure might be avoided by destroying vital evidence before the prosecution begins or before the defendants hear of its existence." Id. (footnote omitted). It is precisely this turn of events, identified by the Bryant panel, that occurred in Mr. xxxxxxx' case. United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975), involved the destruction of rough notes by an F.B.I. agent of interviews conducted immediately after a bank robbery. The court stated in Harrison, "even the most conscientious agent can err, despite careful training and despite his rechecking the report against the notes before destroying the latter". 524 F.2d at 429. "In this circuit the law . . . has been the preservation rule set forth in Bryant and applied specifically to rough notes of witness interviews in Bundy . . . Such notes, we held, 'should be kept and produced' so that the trial court can determine whether the notes 'should be made available to the defendant under. . . the Jencks Act.'" 524 F.2d at 433, quoting Bundy, 439 F.2d at 1267. The Harrison court's holding was designed to "preserve the evidence so that a court can meaningfully play its proper role." 524 F.2d at 435. Under Harrison then, the testimony of the government's witnesses that they had compared the rough notes to the typewritten reports before the notes were destroyed was meaningless and failed to satisfy the requirements of the Jencks Act.
In United States v. Lam Kwong-Wah, 924 F.2d 298, 310 (D.C.Cir. 1991), cert denied, 506 U.S. 901 (1992), this Court reiterated an approach it had set forth earlier in Bryant, regarding the applicability of sanctions for Jencks Act violations. In determining whether to apply sanctions for destruction of Jencks material this court recognized:
[T]he trial court must "'weigh the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial . . .'"
924 F.2d at 310, quoting, United States v. Rippey, 606 F.2d 1150, 1154 (D.C. Cir. 1979), quoting, United States v. Bryant, 439 F.2d at 653. In Mr. xxxxxxx' case the district court did not ever consider the three factors required under the law, but simply denied the requests for mistrial on the grounds that the Jencks material no longer existed. This procedure did not comply with the requirements of Lam Kwong-Wah, Rippey and Bryant. Moreover, application of the three factors outlined in those cases compels the conclusion that the district court erred in denying a mistrial in Mr. xxxxxxx' case.
The problem presented by the routine destruction of rough notes which form the basis for typewritten reports was concisely explained by a panel of the Eighth Circuit in United States v. Leisure, 844 F.2d 1347, 1361 n. 10 (8th Cir.) (citation omitted), cert. denied, 488 U.S. 932 (1988):
The author is, . . . troubled by the practice of shredding initial interview notes
after typewritten summaries have been prepared. Under the three-factor analysis applied by
this circuit, law enforcement officials may be able to destroy with impunity evidence that
would be helpful to the defense. Evidence of 'bad faith' will seldom be available to a
defendant, and it is not at all clear how a defendant could demonstrate that the
typewritten notes are likely to differ materially from handwritten notes which have been
destroyed. Accordingly, the better practice is to retain the handwritten notes after
typewritten notes have been prepared and produce the handwritten notes at trial where
called for.
See also Bundy, 472 F.2d at 1267 ("unless the trial judge is able to see the original notes, it may be difficult, if not impossible, to determine whether or not they should be made available to the defendant . . ."). The decision that all relevant information from the notes, or even that all information from the notes, has been incorporated into a later report is not for the witness or the government to make. The court is vested with the power to make determinations as to what material is producible under the Jencks Act. It was not within the power of the government's witnesses to determine that their rough notes would not have been of assistance to Mr. xxxxxxx.
Since the law in this Circuit does not excuse the destruction of handwritten notes
merely because they are incorporated into a typewritten report, nor because it is an
agency's "routine practice," see
United States v. Harrison, supra, the dilemma Mr. xxxxxxx faced was
exemplified by the Eighth Circuit's recognition that without the rough notes it was
impossible for him to demonstrate that they were materially different from the typewritten
reports.
E. The Destruction Of The Notes Prejudiced Mr. xxxxxxx' Defense.
The purpose of the Jencks act is to provide the accused with a means of impeaching witnesses through prior inconsistent statements. Palmero v. United States, 360 U.S. 343, 345 (1959). As explained by Mr. xxxxxxx' trial counsel:
[W]e have requested sanctions that this is a critical witness in this case. We would like to see her original notes on the two transactions that go to the heart of the Government's case. It affects our ability to cross examine her.
*****
The original statement that she wrote may differ from the statement that she has now adopted that has been created by the DEA. The DEA has their own motive. I don't mean to say they did anything nefarious, but they have their own motive. But, when they retype an original and they destroy the original, it affects our rights under Jencks, the Defense's right to be able to effectively cross examine this witness.
(A. 144-145)
Original notes need not contain direct inconsistencies to be critical to adequate
cross-examination. As the Supreme Court has recognized, Flat contradiction between the
witness' testimony and the version of events given in his report is not the only test of
inconsistency. The omission from the reports of facts related at the trial, or contrast in
emphasis upon the same facts, even a different order of treatment, are also relevant to
the cross-examining process of testing the credibility of a witness' trial testimony.
Clancy v. United States, 365 U.S. at 316, quoting Jencks v. United States, 353 U.S. 657 (1957).
Here, the rough notes that were destroyed were those made by the primary witnesses in the case. (6) Accordingly, it cannot be said that failure to produce those notes of those witnesses, albeit due to their routine destruction, was harmless. United States v. Goldberg, 425 U.S. 94, 111, n. 21 (1976). The trial court abused its discretion in failing to grant a mistrial or, at a minimum, strike the testimony of Somers, Fitzpatrick and Hazel.
II. The Government's Improper Closing Arguments Deprived Mr. xxxxxxx Of A Fair Trial
A. Standard Of Review
This Court reviews challenges to the prosecutor's closing argument to determine whether
the remarks were improper and, if so, whether they caused substantial prejudice to the
accused. United States v. Edelin, 996 F.2d
1238, 1243 (D.C. Cir. 1993), cert. denied, 114 S.Ct. 895 (1994); United States v. Perholtz, 842 F.2d 343 (D.C.
Cir.), cert. denied, 488 U.S. 821 (1988). With the exception
of an objection to the prosecutor's comment about a failure to subpoena "Eddie,"
to which there was a contemporaneous objection, (A.653), the other improprieties in the
prosecutor's closing arguments are reviewed under the plain error standard. Fed.R.Cr.P.
52(b).
B. The Prosecutor's Closing Arguments Deprived Mr. xxxxxxx Of A Fair Trial.
The prosecutor's closing in Mr. xxxxxxx' case "contained a host of infirmities." United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir. 1973). Even if, arguendo, no single one of the infirmities, by itself, rendered Mr. xxxxxxx' trial unfair, when taken together, the totality of the prosecutor's errors requires reversal of Mr. xxxxxxx' conviction. United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996); United States v. Johnson, 968 F.2d 768 (8th Cir. 1992); United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (cumulative effect of errors in voir dire and closing argument rendered trial unfair and required reversal).
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. The prosecutor's comments in Mr. xxxxxxx' case were more than hard blows; they were foul ones, and exceeded the bounds of securing a conviction by legitimate means.
It is axiomatic that a prosecutor's expression of personal opinions and beliefs during closing argument is improper. United States v. Nickens, 955 F.2d 112, 121 (1st Cir.), cert. denied, 113 S.Ct. 108 (1992); United States v. LeFevre, 483 F.2d 477, 478-79 (3d Cir. 1973). See also United States v. Farnkoff, 535 F.2d 661, 668 (1st Cir. 1976); United States v. Daniel, 422 F.2d 816 (6th Cir. 1970). In Mr. xxxxxxx' case, the prosecutor repeatedly expressed his personal opinions and beliefs. See, e.g., A. 653 ("I am sure they talked about it, but he had forgot it by the time he got to the stand").
Time and again he injected himself, almost as a witness, during closing argument. See, e.g., A. 652-653 ("I have never seen more people run away from a coat than this coat that was loaded with drugs. I have never seen more people say, I don't know whose it is."); A. 696 ("no pillar of the community I know sells this stuff."). This, too, was error. United States v. Corona, 551 F.2d 1386, 1388-89 (5th Cir. 1977) (reversing conviction for prosecutor's improper closing argument).
The prosecutor's improper comments on the effects of heroin on families, fetuses in utero, and the community, in general, improperly appealed to the passions and prejudices of the jury. See United States v. Monaghan, 741 F.2d 1434, 1441 & n. 30, 1442 (D.C. Cir. 1984) ("A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values . . . "; prosecutor erred in "[seeking] to elicit sympathy for the victim"); United States v. Hawkins, 595 F.2d 751, 754-755 (D.C. Cir. 1978) (prosecutor may not, directly or indirectly, urge the jury to convict in order to address drug problem), cert. denied, 441 U.S. 910 (1979). In Johnson, supra, the Eighth Circuit reversed a drug conviction for a prosecutor's "unduly inflammatory and improper references" in closing to "putting this poison on the streets." 968 F.2d at 770. The Eighth Circuit recognized:
Clearly the drug problem is a matter of great concern in this country today . . . However, . . . the pressing nature of the problem does not give prosecutors license to encumber certain defendants with responsibility for the larger social problem in addition to their own misdeeds.
968 F.2d at 771. See also United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 1991) (reversing conviction in drug case for prosecutor's improper closing and stating, "Even though this nation is in the midst of an ongoing crisis, popularly termed the 'War on Drugs,' this crisis does not create an excuse to impinge on the constitutional right to a fair trial.")
Moreover, the prosecutor's repeated attacks on the defense of entrapment as the only possible defense Mr. xxxxxxx could have lodged to the charges was improper. See United States v. Gonzalez, supra. In Gonzalez, the Second Circuit reversed the conviction based upon the prosecutor's improper closing argument. Among the improprieties by the prosecutor in Gonzalez was his statement that "'you have to be born yesterday to believe' . . . [the] . . . defense." 488 F.2d at 836. The prosecutor's comment in Mr. xxxxxxx' case that "You all weren't born yesterday. He is hoping to pu[ll] the biggest job ever seen . . .", (A. 693-694), was no less egregious than the Gonzalez prosecutor's comments. Moreover, like the Gonzalez prosecutor, the prosecutor here argued to the jury that because a misidentification, alibi, or duress defense wold have been implausible, the defense of entrapment was created. (A. 661-662, 693-694).
Also like the prosecutor in Gonzalez, the prosecutor in this case suggested that Mr. xxxxxxx had encouraged a witness to lie. See A. 652-653) ("the fictitious Eddie. You did not see Eddie come in and testify. You did not hear about any efforts made to subpoena him, did you? . . . I mean the brother couldn't even get it straight, could not remember what his last name was. I am sure they talked about it, but he had forgot it by the time he got to the stand.") Even "veiled hints" and insinuations suggesting that the accused "attempted to influence his witnesses to lie," has been recognized to be improper. Oliver v. Wainwright, 795 F.2d 1524, 1532 (11th Cir. 1986), cert. denied, 480 U.S. 921 (1987). (7)
In United States v. Monaghan, supra, a panel of this Court set forth a three-part test to determine whether a prosecutor's improper remarks in closing argument substantially prejudiced an accused's right to a fair trial: "the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks." 741 F.2d at 1443. Here, the misconduct was repeated and severe, and completely unprovoked. None of the prosecutor's improper remarks in Mr. xxxxxxx' case can be construed as legitimate responses to the defense closing, which was not inflammatory or improper. See A. 664-691. See United States v. Manning, 23 F.3d 570, 575 (1st Cir. 1994) (prosecutor's improper statements "occurred during closing arguments -- the last words spoken to the jury by the trial attorneys -- and in no way [were] provoked by improper arguments by defense counsel"). Compare United States v. Nickens, 955 F.2d at 121 (no plain error in prosecutor's misconduct in closing where it was "rebuttal to defense counsel's own inflammatory closing argument."). Not only did the court fail to take curative measures, but by responding to counsel's objection by stating, "it is argument," A. 653, the court "tacitly indicated that the arguments were proper. United States v. Manning, 23 F.3d at 575. Finally, Mr. xxxxxxx presented a substantial and credible defense to the charges. Because this Court cannot be sure beyond a reasonable doubt, see United States v. Hasting, 461 U.S. 499, 511 (1983), that without the prosecutor's improper comments in closing argument, the jury's verdicts would have been the same in Mr. xxxxxxx' case, his convictions must be reversed.
III. The Trial Court Erroneously Believed It Lacked The Authority To Adjust Mr. xxxxxxx' Sentence Downward For Acceptance of Responsibility Because He Had Interposed A Defense Of Entrapment At Trial.
A. Standard of Review
The district court's determination that Mr. xxxxxxx' entrapment defense precluded an adjustment for acceptance of responsibility is a legal conclusion this Court should review de novo. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). See United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995) (applying de novo review to applicability of § 3E1.1 to defendant who raised insanity defense); United States v. McLean, 951 F.2d 1300, 1303 (D.C. Cir. 1991) (whether "career offender" can qualify for acceptance of responsibility is "a legal question"), cert. denied, 503 U.S. 1010 (1992).
B. The District Court's Ruling
At sentencing, the district court erroneously ruled that it was prohibited from adjusting Mr. xxxxxxx' offense level two levels downward, pursuant to U.S.S.G. § 3E1.1, for his acceptance of responsibility because he had interposed an entrapment defense. Because the district court did not realize that it had the authority to give Mr. xxxxxxx credit for his acceptance of responsibility, the case must be remanded for re-sentencing.
In relevant part, at the sentencing hearing, the district court observed:
. . .[T]he defendant never really confessed to the crimes in this case. He took the government to trial, put up a vigorous defense of entrapment, and I don't think under any stretch of the imagination could he be viewed as one who had accepted responsibility in this case. I just don't think that applies in this case.
A. 774
In its written opinion, the district court, explained its ruling:
Although the defendant admitted he sold heroin to Brenda Hazel, he claimed, and continued through sentencing to claim, that he was entrapped by her to do so. Thus, the Court . . . found that the defendant was not entitled to credit for acceptance of responsibility.
A. 805.
C. A Claim of Entrapment Is Not Legally Inconsistent With "Acceptance of Responsibility."
The federal sentencing guidelines direct a sentencing court to arrive at an offense level and then to make various adjustments to that offense level. See U.S.S.G § 1B1.1 (a) through (c). Thereafter, U.S.S.G. § 1B1.1(d) directs the sentencing court to adjust the offense level for acceptance of responsibility, under U.S.S.G. § 3E1.1(b), if warranted, and then ultimately to determine whether any departures under Chapter Five apply. See U.S.S.G. § 1B1.1(i).
Application Note 2 to § 3E1.1 provides that, "This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse" (emphasis added). A § 3E1.1 adjustment is permitted "where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." Id. (emphasis added). Here, the court refused to adjust Mr. xxxxxxx' offense level based upon his assertion of the entrapment defense. That ruling was wrong as a matter of law. See United States v. Ing, 70 F.3d 553, 556 (9th Cir. 1995) ("The assertion of an entrapment defense is not necessarily incompatible with acceptance of responsibility . . . The fact that the defendant asserted an entrapment defense is not enough to warrant denial of an adjustment for acceptance of responsibility."), citing United States v. Molina, 934 F.2d 1440, 1451 (9th Cir. 1991).
Application Note 2 focuses on whether the accused has "denied the essential factual elements of guilt." In Mr. xxxxxxx' case he did not. During both his trial testimony, see, e.g., A. 516, A. 520-521, A. 523-524, A. 529, A. 545, A. 554-556, A. 633, and at sentencing, see A. 794, Mr. xxxxxxx admitted his involvement in the offenses with which he was charged. Indeed, he even conceded that he was foolish to continue selling to Lisa Somers, when he knew better and did not want to. See A. 633, A. 520-521. By asserting the entrapment defense, Mr. xxxxxxx was "preserv[ing an] issu[e] that [did] not relate to factual guilt." Application Note 2. His position at trial that he should not be convicted because the criminal conduct had been induced by the government (through Brenda Hazel) was a "challenge to the applicability of [the] statute to his conduct," Application Note 2, not a denial that he had sold heroin to Hazel and Somers.
"Denial of a downward adjustment under section 3E1.1 may not be premised merely
upon the presentation of an entrapment defense." United States v. Davis, 36 F.3d 1424, 1435-1436
(9th Cir. 1994), cert. denied, 115 S. Ct. 1147 (1995). See also
United States v. Corral-Ibarra, 25 F.3d
430, 439-442 (7th Cir. 1994) ("an entrapment defense, if pleaded in good faith, . . .
may possibly qualify" as a situation warranting reduction under Application Note 2); United States v. Fleener, 900 F.2d 914, 917-918
(6th Cir. 1990) (rejecting government's argument that entrapment defense is
"inconsistent with" acceptance of responsibility). The Tenth Circuit has upheld
denial of an acceptance adjustment where the trial court "did acknowledge the
entrapment defense does not necessarily bar a § 3E1.1 reduction." United States v. Hoenscheidt, 7 F.3d 1528, 1532
(10th Cir. 1993). Here, the court erred in accepting the government's argument that Mr.
xxxxxxx was not entitled to an adjustment because he "took the government to
trial." (A. 774). Because the district court erred in its conclusion that it could
not adjust Mr. xxxxxxx' offense level downward by two points pursuant to U.S.S.G. §
3E1.1, merely because he had asserted an entrapment defense, the case must be remanded for
re-sentencing.
IV. The District Court Erred In Applying The "Gun Bump" Under U.S.S.G. § 2D1.1(b)(1)
A. Standard of Review
The district court's determination that the "gun bump" under U.S.S.G. § 2D1.1(B)(1) applied to Mr. xxxxxxx' case to enhance his offense level involved the application of the law to the facts. Accordingly, the district court's determination is entitled to due deference. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994).
B. U.S.S.G. § 2D1.1(b)(1) Did Not Apply To The Facts Of Mr. xxxxxxx' Case
The offense level for a drug offense may be enhanced by two levels "[i]f a firearm or other dangerous weapon was possessed." U.S.S.G. § 2D1.1(b)(1) (emphasis supplied). The application notes to U.S.S.G. § 2D1.1 make clear that mere possession of a weapon is not enough, but that the weapon must be "connected with the offense" for the "gun bump" to apply. U.S.S.G. § 2D1.1(b)(1) (Application Note 3). The burden was on the government to "establish a relationship between" Mr. xxxxxxx' alleged possession of the firearms recovered from near three cash registers in the Fort Davis Liquors and the rifle recovered from the safe in the office of that store, and the drug counts of which Mr. xxxxxxx was convicted. Each of the government's witnesses agreed that Mr. xxxxxxx did not have any weapons with him at the time of the sales, and that he made no mention of weapons during those sales. See A. 161, A. 405. Moreover, the heroin which was recovered on March 28, 1994 and which formed the basis for the charge of possession with the intent to distribute heroin, was recovered, not from Fort Davis Liquors, but from Mr. xxxxxxx' person. See United States v. Khang, 904 F.2d 1219, 1221-24 (8th Cir. 1990). See also United States v. Richmond, 37 F.3d 418, 419 (8th Cir. 1994). Finally, during his closing argument, the prosecutor conceded the protective purpose of the guns, wholly independent of any purpose relating to drugs. (A. 654). Thus, the connection between the guns in the store and the drug counts was not sufficient to warrant the two-point "gun bump" under U.S.S.G. § 2D1.1(b)(1).
CONCLUSION
For each of the foregoing reasons individually, and for the foregoing reasons in aggregate, Mr. xxxxxxx' conviction should be reversed and his case remanded for a new trial and for re-sentencing.
Respectfully submitted,
Santha Sonenberg
Assistant Federal Public Defender
On Behalf of Joseph L. xxxxxxx, Sr.
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
CERTIFICATION OF BRIEF LENGTH
Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 12,500 words.
Santha Sonenberg
CERTIFICATE OF SERVICE
This is to certify that on this 15th day of May, 1996, two copies of the foregoing Brief for Appellant were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand-delivery.
Santha Sonenberg
for reply brief:
re closing argument
ystd of review"
Nonetheless, "[w]hile the plain error doctrine of Rule 52(b) serves well the cause of justice by 'temper[ing] the blow of a rigid application of the contemporaneous objection requirement' when the occasion demands, courts must not lose sight of the objectives it was designed to achieve. . . .[P]lain error review is entirely appropriate when the matter complained of '"seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings."'" United States v. Doe, 903 F.2d 16, 26 (D.C. Cir. 1990) (citations omitted).
1. Based upon a multiplicity challenge, these counts were consolidated and the jury considered them as Count Five. See 10/3/94 AM Tr. 7-12.
2. Hazel was a confessed drug addict from the 1970's through 1992. (A. 64-65, A. 120). She had three prior criminal convictions, each of which bore directly on her credibility: a 1979 conviction for false pretenses, a 1985 theft conviction, and a 1989 fraud conviction. (A. 66, A. 98-99). She repeatedly violated her probation. (A. 67, A. 99-103). See also A. 117-121 (regarding untruths by Hazel). While she was incarcerated in 1992-1993, she met with several DEA agents and made an agreement to cooperate with the DEA in exchange for payment of $100,000. (A. 67-71, A. 104-117).
3. See A. 131, A. 136, A. 168-169, A. 506-513.
4. See A. 527-528, A. 630-631. See also 10/11/94 AM Tr. 17-18, 28.
5. At this point defense counsel interrupted to object, but the court merely stated, "this is argument." See A. 653.
6. In his initial closing, the prosecutor argued that Somers' credibility was supported by her professionalism as exemplified by the "extensive reports" she wrote "about her dealings" in Mr. xxxxxxx' case. (A. 651) See also (A. 652)
7. The Eleventh Circuit in Oliver ultimately ruled that the improprieties in the prosecutor's closing in that case did not warrant habeas relief. Because Mr. xxxxxxx' case is on direct appeal, this Court has "more latitude . . .[to] exercise [its] supervisory power than [it has] on reviewing a claim on habeas corpus. United States v. Scarfo, 685 F.2d 842, 849 (3d Cir. 1982), citing Donnelly v. DeChristiforo, 416 U.S. 637, 639, 642-43 (1974).