ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

NO. 97-3011

BRIEF OF APPELLANT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

RICO xxxxxxx,Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

BEVERLY G. DYER

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No. 96-45 (PLF)

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant Rico xxxxxxx hereby states as follows:

A.Parties and Amici: The only parties below and on appeal are defendant-appellant Rico xxxxxxx, and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B.Rulings Under Review: In this appeal, appellant seeks review of (1) the prosecutor's improper opening and closing arguments and cross-examination (11/5/96 Tr. 26-44; 11/12/96 Tr. 113-177; 11/13/96 Tr. 47-81, 108-120); (2) the district court's denial of appellant's motion for new trial, which asserted that appellant was denied the right to confer with counsel during a break between his cross-examination and redirect testimony, in violation of the Sixth Amendment, United States v. xxxxxxx, 955 F. Supp. 132 (D.D.C. 1997) [A. ]; (3) the district court's imposition of multiple convictions and sentences for similar federal and District of Columbia crimes arising out of a single incident and pursuant to two D.C. assault statutes which merge (1/28/97 Tr. 37-39) [A. ]; and (4) the district court's upward departure under the Sentencing Guidelines (1/28/97 Tr. 22-26) [A. ].

C.Related Cases: This case has not been before this Court previously and there are no related cases.

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

NO. 97-3011

BRIEF OF APPELLANT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

RICO xxxxxxx,Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATUTES AND RULES

Pursuant to D.C. Cir. Rule 28(a), pertinent statutes and regulations are included in the addendum to this brief.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1651.

ISSUES PRESENTED FOR REVIEW

1.Whether the prosecutor's opening and closing arguments and cross-examination of the defendant substantially prejudiced Mr. xxxxxxx's right to a fair trial, causing a miscarriage of justice, when the prosecutor mischaracterized the evidence, exaggerated defendant's involvement in the drug trade, stated his personal opinion that the defendant lied or was not telling the truth, contradicted defendant in cross-examination, and improperly created sympathy for the victim and inflamed the jury.

2.Whether the district court erred in denying defendant the right to counsel during a break between defendant's cross-examination and redirect examination, and in denying defendant's motion for a new trial on the same ground.

3.Whether the district court plainly erred in sentencing defendant under two federal and four District of Columbia statutes for essentially similar or lesser included crimes stemming from a single incident, particularly when the government circumvented the federal statutory scheme to obtain longer sentences under District of Columbia statutes; and whether the District of Columbia crimes of assault with intent to kill and aggravated assault merge.

4.Whether the district court erred in departing upward under the Sentencing Guidelines for conduct already taken into account in the sentence.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On February 22, 1996, a federal grand jury sitting in the District of Columbia returned a six-count indictment charging Rico xxxxxxx with (1) knowingly causing bodily injury to Thomas White by shooting at White with the intent of retaliating against him for providing information to a law enforcement officer, in violation of 18 U.S.C. § 1513 (Count One); (2) use and carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Two); (3) assault with intent to kill while armed with a pistol in violation of D.C. Code §§ 22-501 and 22-3202 (Count Three); (4) aggravated assault with a pistol in violation of D.C. Code §§ 22-504.1 and 22-3202 (Count Four); (5) possession of a firearm during a crime of violence in violation of D.C. Code 22-3204(b) (Count Five); and (6) carrying a pistol without a license in violation of D.C. Code 22-3204(a) (Count Six). [A. ]

A jury trial commenced before the Honorable Paul L. Friedman on November 4, 1996. On November 13, 1996, the jury returned a verdict finding defendant guilty on all six counts.

On December 2, 1996, defendant filed a motion for new trial on the ground that he was denied the right to confer with counsel during a break between his cross-examination and redirect examination. [A. ] On January 28, 1997, the district court denied that motion. (1/28/97 Tr. 2-3). On February 14, 1997, the district court issued a written ruling, nunc pro tunc to the January 28 oral ruling. United States v. xxxxxxx, 955 F. Supp. 132 (D.D.C. 1997); [A. ].

At sentencing, the government requested an upward departure under the Sentencing Guidelines on Count One based on serious physical injury to the victim and the fact that a weapon was used. (1/28/97 Tr. 5-14) [A. ] The district court found that the Sentencing Guidelines established a range of 51 to 63 months on Count One, based on an offense level of 20 and a criminal history category of IV. [A. ] The district court departed upward by 24 months, citing application note 4 to U.S.S.G. § 2J1.3(b) and U.S.S.G. § 5K2.2. (1/28/97 Tr. 22-26) [A. ]

The district court sentenced defendant to 87 months imprisonment and 3 years supervised release on Count One, and 60 months imprisonment and 3 years supervised release on Count Two, with the terms of imprisonment to run consecutively and the terms of supervised release to run concurrently; 5 to 15 years imprisonment on Count Three and 5 to 15 years imprisonment on Count Four, Counts Three and Four to run concurrently to each other and consecutively to Counts One and Two; and 5 to 15 years on Count Five and 40 months to 10 years on Count Six, Counts Five and Six to run concurrently to each other and consecutively to Counts One through Four. The court imposed a special assessment of $50.00 each on Counts One and Two, and $20 each on Counts Three through Six, for a total of $180.00. The Court also imposed restitution of $5,000.00 payable to Thomas White. [A. ] In an addendum to the judgment and commitment order, the district court explained that the total sentence was intended to insure that the defendant would serve 22 years in prison. [A. ]

Defendant filed a timely notice of appeal. [A. ]

B. Statement of Facts

On April 26, 1995, Thomas White was shot at the corner of Florida Avenue, 4th Street and Rhode Island Avenue, N.W. White had been a police informant in an operation called Project Uptown, which had targeted the neighborhood of LeDroit Park and the Kelly-Miller public housing development, located in the 200-400 blocks of V and W Streets, N.W. Project Uptown, which began in August, 1994, involved a joint task force of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), the U.S. Secret Service, the Department of Housing and Urban Development, and the Metropolitan Police Department ("MPD"). (11/5/96 Whalen Tr. 5). The project ended in September, 1995, and resulted in a total of approximately 50 arrests, mostly for possession of crack cocaine. Approximately 15 of those arrests were for distribution of crack cocaine. (Id. at 22-23).

 On February 22, 1995, Project Uptown agents made an undercover purchase of crack cocaine from White. (Id. at 31-33). Approximately a month later, the agents met with White and came to an agreement for him to act as a confidential informant in their investigation. (Id. at 33-36). White assisted the agents in two arrests outside the Kelly-Miller area but did not lead the agents to any dealers in Kelly-Miller. (Id. at 44-46; 11/5/96 White Tr. 22-23). White continued to sell drugs and possess a weapon in Kelly-Miller after agreeing to cooperate. (11/5/96 White Tr. 23; 11/6/96 White Tr. 42-45; 11/5/96 Whalen Tr. 47-48, 79-88).

On February 23, 1995, agents conducting surveillance at 334 V Street, N.W., videotaped an undercover transaction resulting in a purchase of crack cocaine. (11/5/96 Whalen Tr. 27-31). The undercover officer had a conversation with Rico xxxxxxx in connection with the purchase but Mr. xxxxxxx was not observed handling any money or drugs. (Id. at 28, 79). On April 18, 1995, the agents arrested Mr. xxxxxxx in connection with the February drug transaction. (11/5/96 Whalen Tr. 54-55; 11/12/96 Tr. 109). The agents also attempted to obtain a cooperation agreement with Mr. xxxxxxx but were unsuccessful. (11/12/96 Tr. 152-53).

White testified that he had known Rico xxxxxxx since 1992, that he had purchased crack cocaine from him for resale in 31's and 62's (referring to $20 packets) worth $800 or $1500, and that he bought from Mr. xxxxxxx most of the time. (11/5/96 White Tr. 11-12). He stated that he did not turn in Mr. xxxxxxx or other Kelly-Miller associates to the agents "because of the loyals," or loyalty. (Id. at 22-23). White stated that Mr. xxxxxxx carried a Glock 9mm weapon, and that Mr. xxxxxxx's brother Antonio also carried the same type of weapon, but that he had never seen them both armed at the same time, and he had only seen a single Glock 9mm. (Id. at 14-15).

On Friday, April 21, 1995, Steven Berry observed White get out of a green truck known to be an ATF vehicle. (11/6/96 Tr. 45-46). Berry sold drugs, but not in the Kelly-Miller area. (Id. at 40-41). Berry told White he had seen him getting out of the police truck and White denied it. (Id. at 48; 11/5/96 White Tr. 24, 28-29). Berry went to confront White again and confer with friends, and White began a fight with Berry to stop him from talking. (11/6/96 Tr. 49-51; 11/5/96 White Tr. 25, 30-31). Afterwards, both left the neighborhood. (11/6/96 Tr. 52). A number of people, not including Rico xxxxxxx, observed the fight. (11/5/96 White Tr. 31-32). xxxxxxx arrived at the scene of the fight about 15 minutes after it ended, but did not speak with anyone. (Id. at 32).

Patricia Murray, a former crack addict, testified that there were rumors in the neighborhood that someone was snitching. (11/7/96 Tr. 27, 32-33, 37). Antonio xxxxxxx asked her if she was snitching. (Id. at 37-38). Murray also heard a rumor that White was snitching. (Id. at 38). Donna Swann also heard a rumor that White was a snitch. (Id. at 115).

On April 26, 1995, Jacqueline Lee (known as Jackie Lee), a friend of both White's and xxxxxxx's, received a letter from an unknown person at the D.C. Jail. (Id. at 75-78). Lee did not read the whole letter, but saw that it stated that White was an informant. (Id. at 79). Lee showed the letter to White at about 3:00 p.m. that afternoon. (Id. at 80; 11/5/96 White Tr. 34-35). The letter was on a yellow sheet of paper, like a legal pad but shorter. (11/7/96 Tr. 83). Lee did not show the letter to defendant and threw the letter in the trash after showing it to White. (Id. at 91). Donna Swann testified that, before she heard White had been shot on April 26, after dark, she had seen Lee carry something like a napkin to a group of people in a lot across the street from her. (Id. at 103). The government impeached Swann with grand jury testimony stating that it had been a piece of paper, and that defendant was among the men in the lot. (Id. at 100, 103-06). Swann did not see if it had writing on it, what color it was, or whether it was a letter. (Id. at 121-122). Damon Davis also testified that Jackie Lee told him about a letter she received stating that White was an informant, but he did not recall whether she told him that before or after White was shot. (11/8/96 Tr. 43-44, 46).

White testified that Mr. xxxxxxx approached him that afternoon and said "you like playing games." (11/5/96 White Tr. 38). White asked what he was talking about and xxxxxxx said "you'll see later on." (Id.).

Agent Whalen saw xxxxxxx in the neighborhood the afternoon of April 26, 1995, wearing light blue jeans and a light green windbreaker, and also wearing glasses. (11/5/96 Whalen Tr. 90-91). Later that afternoon, Agent Whalen saw xxxxxxx wearing white shorts and a light colored shirt, playing basketball. (Id. at 92).

At about 11:00 p.m. on April 26, 1995, White walked down 4th Street to Florida Avenue to catch a cab. (11/5/96 White Tr. 39). While he was walking, he saw a burgundy two-toned car also going down 4th Street in the same direction, with Rico xxxxxxx in the front seat, wearing a green and black pullover windbreaker with a hood and a Muslim hat. (Id. at 39-40). The car was driven by Rico Coates, also known as "Big Ric." Antonio xxxxxxx, Derrick Jones, and Damon Davis were in the back seat. (Id. at 40-41). White waited for a cab for five or ten minutes on the corner of Florida Avenue and Rhode Island Avenue. (11/6/96 White Tr. 4). He heard something, saw someone coming out of the bushes, and then saw a gun fired at him. (Id.). He ran across the street and fell down by an Amoco gas station. He heard defendant state "I told you I was going to get you bitch ass." (Id. at 8). White testified that the shooter was Rico xxxxxxx, wearing faded jeans, a green and black jacket with a hood, and a Muslim cap, with a scarf around his mouth and part of his nose. (Id. at 5). White could not see the shooter's eyes. He had put the hood over his head. (Id. at 8). The gun was a black nine millimeter. The shooter held the gun in his left hand. (Id.). White was hit by bullets in his right shoulder, arm, midsection and ankle. (Id. at 10). He was left with a limp as a result of the shooting. (Id. at Tr. 13). Firearms expert Glen Beach testified that 11 firearms casings found at the scene all came from the same Glock 9mm weapon. (11/7/96 Tr. 139-40).

Romeo Williams was at the Amoco Station and witnessed the shooting. Williams testified that the shooter was a black male, approximately 5'4" or 5'5" in height, 130-140 lbs. weight, wearing all black or dark clothing and a black ski mask covering his face. (11/12/96 Tr. 7-8, 15). He clarified that the clothing was all black and that "its not the kind of ski mask that comes totally over your face. Its this new type that they have that just comes from your nose, covers your mouth on down." (Id. at 12-13). He also stated that the shots "were random gun shots fired. They were pow, pow, pow, pow, pow, pow, pow," and the shooter was aiming at the victim. (Id. at 11-12). Williams took White to the Howard University Hospital. (Id. at 9).

At the hospital, White told Third District MPD Officer W.A. Gibson that "he had seen some folks running, he started running, and was shot," and that "he couldn't describe the gun, the suspects, or anything." (11/6/96 Tr. 28-29). Gibson relayed that information to Fifth District MPD Detective Jacqueline Middleton, who recorded it in her notes and then told MPD Officer Tonya Moore. (11/6/96 Tr. 13, 16, 29-31). Moore recorded on a 251 police report that White stated that "an unknown black male ran up toward him with a black handgun." (11/12/96 Tr. 66).

When Agents Jeff Grabman and Whalen arrived, White stated that "Rico shot me" or "Little Ric did it" several times, and when asked, stated that he was sure it was defendant. (11/6/96 White Tr. 12; 11/5/96 Whalen Tr. 51; 11/6/96 Tr. 18, 20, 26). According to Detective Middleton, White stated at the hospital that the shooter was a black male, 5'2" to 5'4" in height, stocky, wearing a green windbreaker, black jeans, black tennis shoes and a blue ski mask covering the face. (11/6/96 Tr. 26-27). According to Agent Whalen, White stated at the hospital that the shooter wore a green windbreaker with the hood up, a knit cap, something covering the bottom half of his face, dark jeans, and dark shoes. (11/5/96 Whalen Tr. 52-53).

On April 28, 1996, agents executed a search warrant at 414 Warner Street, N.W., where defendant's mother lived. (11/7/96 McMullin Tr. 3-4). They found a Glock 9mm pistol in the bureau in Antonio xxxxxxx's bedroom. (Id. at 4; 11/8/96 Whalen Tr. 3-4). Firearms expert Glen Beach testified that the firearms casings found at the scene did not match the Glock 9mm weapon recovered from Antonio xxxxxxx's bedroom. (11/7/96 Tr. 141). The agents also searched 5 Rhode Island Avenue, Apartment 202, on April 28, and recovered a silver .22 caliber revolver belonging to Linwood Mitchell. (11/8/96 Tr. 61-62).

Rico xxxxxxx, who is right-handed, testified that he did not shoot White, nor did he know who did shoot White. (11/12/96 Tr. 92, 113). He also stated that he did not sell drugs to White, although he admitted selling drugs in LeDroit Park. (Id. at 96, 101). He was not aware of rumors that White was cooperating with the police, and did not observe the fight between White and Berry. Although he heard the fight had occurred, he did not know it was about White's cooperation. (Id. at 104-05). He did not learn about the letter Jackie Lee received until after his arrest. (Id. at 105-06). He did not have a conversation with White about playing games. (Id. at 107).

Mr. xxxxxxx testified that in early 1995, he lived at two addresses, 5 Rhode Island Avenue and at his mother's house at 414 Warner Street. (Id. at 92-93). He would also stay at his grandmother's house at 420 Taylor Street, N.W, and with a friend named Racheeta in New Carollton, Maryland, on 85th Avenue. (Id. at 93-95). He testified that he did not have a Glock 9mm weapon, but that he would sometimes borrow Mitchell's .22 caliber weapon without Mitchell's permission. (Id. at 96-97). He was not aware that his brother Antonio was in possession of a Glock 9mm weapon, or that his brother sold drugs. (Id. at 99, 135-36).

Mr. xxxxxxx learned that White had been shot from his mother, in a telephone conversation in which she told defendant the police had searched her house looking for him. (Id. at 101, 103). His mother advised him to stay away from the neighborhood until they could hire a lawyer. (Id. at 103). Once he had a lawyer, he surrendered himself at Superior Court, at a court appearance scheduled in connection with the drug charges stemming from the February undercover transaction. (Id. at 108-09). At the time of his arrest, defendant was wearing a grey Muslim hat, which White identified at trial as the hat he had worn during the shooting. (11/5/96 Whalen Tr. 68-70).

C. Defendant's Motion for New Trial

After the government finished its cross-examination of defendant, the court ordered a break before redirect examination. (11/12/6 Tr. 178). In response to a request from the government, the court directed counsel not to speak to defendant about his testimony during the break. (Id.). After the break, defense counsel stated that she had no redirect "given the Court's ruling." (Id. at 179).

On December 2, 1996, defendant filed a written motion for new trial on the ground that the court's order denying him the right to counsel during the recess violated his Sixth Amendment rights. [A. ] On January 15, 1997, the government filed an opposition to that motion, [A. ], and on January 28, 1997, the court denied defendant's motion at the sentencing hearing. On February 1, 1997, the court issued a written memorandum denying the motion. United States v. xxxxxxx, 955 F. Supp. 132 (D.D.C. 1997).

SUMMARY OF ARGUMENT

In closing argument, the prosecutor distorted and misstated the testimony of Romeo Williams, the only witness to the shooting other than Thomas White, and misstated the testimony of Patricia Murray. other witnesses, and commented on the motives of witnesses. The prosecutor also exaggerated the evidence that defendant was involved in drug sales in both opening and closing argument, and prejudiced defendant in a lengthy cross-examination on the subject of defendant's knowledge of the drug business. In addition, the prosecutor contradicted defendant's testimony during cross-examination, suggesting he had evidence not before the jury. The prosecutor stated that defendant lied and otherwise denigrated defendant's testimony, and inflamed the jury and created sympathy for the victim. None of these errors were invited by defense counsel. Cumulatively, these errors undermined the fairness of the trial.

In addition, the district court violated defendant's right to effective assistance of counsel and his right to testify by ordering defendant and defense counsel not to consult during a 25-minute recess after cross-examination and before redirect examination. There was no risk of improper "coaching" once cross-examination had been completed. Therefore, defendant's right to consult with counsel and to inform counsel whether he wished to testify prior to redirect examination was infringed upon where the consultation would not have interrupted the orderly administration of the trial.

Furthermore, the district court did not have the authority to sentence defendant to essentially similar District of Columbia and federal crimes stemming out of a single criminal incident. See, e.g., United States v. Shepard, 515 F.2d 1324, 1336 (D.C. Cir. 1975); United States v. Knight, 509 F. 2d 354, 361-62 (D.C. Cir. 1974). In particular, the government elected to charge defendant with violating § 1513(b) (causing bodily injury to an informant in retaliation), which authorizes a 10-year sentence, instead of 18 U.S.C. § 1513(a), (attempt to kill an informant in retaliation), which authorizes a 20-year sentence. By circumventing the stricter federal provision, the government was able to obtain two D.C. assault convictions, each of which (enhanced by D.C. Code § 22-3202) authorizes a sentence of life imprisonment. Furthermore, the government obtained convictions under both 18 U.S.C. § 924(c) and the lesser included offense of D.C. Code § 22-3204(b). Under these circumstances, this Court should remand for resentencing with instructions to vacate the D.C. Code offenses. Finally, the two assault charges merge under District of Columbia law because the D.C. Council did not intend the aggravated assault statute, § 22-504.1, to create an offense independent of the crime of assault with intent to kill, § 22-501.

Lastly, the district court erred in departing upward under the Sentencing Guidelines on Count One. The court based its departure on defendant's use of a gun and the infliction of bodily injury, both of which were already taken into account by the Sentencing Commission. The Guidelines do not permit an upward departure for the use of a gun when a defendant receives a sentence under § 924(c), and the infliction of bodily injury was considered and accounted for in the eight level adjustment defendant received pursuant to U.S.S.G. § 2J1.2(b)(1). The circumstances of this case were not exceptional.

ARGUMENT

II. THE PROSECUTOR'S IMPROPER OPENING AND CLOSING ARGUMENTS AND CROSS-EXAMINATION UNFAIRLY PREJUDICED DEFENDANT AND CAUSED A MISCARRIAGE OF JUSTICE

A.STANDARD OF REVIEW

This Court will reverse for a prosecutor's improper closing argument if it causes substantial prejudice. See United States v. Donato, 99 F.3d 426, 431 (D.C. Cir. 1997). That determination is based on "'the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.'" United States v. Childress, 58 F.3d 693, 715 (D.C. Cir. 1995) (internal citations omitted), cert. denied, 116 S. Ct. 825 (1996). Where, as here, the defendant did not object to the misconduct at trial, this Court reviews for plain error, which occurs where "'a miscarriage of justice would otherwise result.'" United States v. Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995) (internal citations omitted).

B. The Prosecutor Mischaracterized the Testimony of Witnesses

The prosecutor improperly misled the jury, and distorted or mischaracterized the testimony of witnesses. For example, the prosecutor argued:

It's proved that Mr. xxxxxxx was clearly and correctly identified as the person who committed this crime by Mr. White himself, from minutes after the shooting, by Mr. Romeo Williams, who perfectly corroborated Mr. White's description of the shooter . . .

What else did Romeo Williams tell you? He corroborated perfectly Thomas White's account that this wasn't some random shooting between strangers. This was a shooting done in the style of an execution.

(11/13/96 Tr. 72) (emphasis added). And again, in rebuttal, the prosecutor stated:

As Romeo Williams so articulately demonstrated and described, this was an execution style shooting.

(Id. at 117) (emphasis added). However, Williams did not identify Mr. xxxxxxx as the shooter, nor did he "perfectly" corroborate White. He did not describe the shooting as an "execution style shooting." This Court has found use of the term "execution" to describe a murder to be improper and prejudicial. See, e.g., United States v. DeLoach, 504 F.2d 185, 193 (D.C. Cir. 1974); see also United States v. Jones, 482 F.2d 747, 753 (D.C. Cir. 1973) (court does not condone use of term "executioner"). That error is compounded here because the prosecutor attributed the term twice to a witness who did not use that term. In rebuttal, the prosecutor also argued:

Mr. Williams saw what happened and he saw this man do it. But he had the integrity not to try to say, "I saw his exact face, he was 5'4" to 5'5". He had some scarf or mask over the middle of his face and he had a hood over his head." Ladies and gentlemen, an exquisitely perfect description of the man who tried to kill Thomas White.

(11/13/96 Tr. 110) (emphasis added). This argument created the impression that the prosecutor's own description of the shooter was part of Williams' testimony.

With respect to Murray's testimony, the prosecutor stated:

Oh, and by the way, who did Patricia Murray hear the snitching rumors from? Let's draw a line out to Antonio xxxxxxx. That's who told Patricia Murray about the snitches rumor, remember?

(Id. at 112-13) (emphasis added). Though the prosecutor subsequently cited Murray's testimony that Antonio xxxxxxx asked her if she was a snitch, his argument suggested to the jury that Antonio xxxxxxx also told her White was a snitch, a suggestion which is not supported by her testimony.

C. The Prosecutor Overstated the Evidence That Defendant Was Involved in Drug Sales, Mischaracterized Other Evidence Against Defendant, and Suggested He Had Evidence Not Before the Jury

The prosecutor exaggerated the drug evidence against defendant in closing argument:

[Project Uptown] made, as Agent Whalen told you, about 50 cases. Fifteen of them were identified as the principal distributors in the Kelly-Miller, LeDroit Park area. Two of them were Rico xxxxxxx and Thomas White.

(Id. at 51-52) (emphasis added). However, Agent Whalen did not testify that the Project Uptown arrests involved any principal distributors, and there was no evidence that defendant or White were principal distributors. Similarly, in opening argument, the prosecutor stated:

[T]here came a time Mr. xxxxxxx had to go to Court on one of his cases, excuse me, one of his narcotics cases . . .

(11/5/96 Tr. 42) (emphasis added). The government produced no evidence that defendant was arrested in any case other than the February 23, 1995 undercover transaction. This Court has held a prosecutor's insinuation of prior drug dealing to be reversible error, particularly where the defense did not invite the prosecutor's remarks. United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993).

In cross-examination, although defendant admitted selling drugs and over a defense objection, the court permitted the government to impeach defendant with more than 35 questions on his knowledge of the drug business, substantially prejudicing defendant. (11/12/96 Tr. 127-35). The prosecutor also contradicted defendant's testimony:

Q.Are you saying that you don't know if you've visited Pat Murray only one time or more than one time?

A.I would believe I may have been in her apartment twice.

Q.Okay. Only twice. And was it just one time or both times that you carried a gun up to her apartment?

A. I know for sure it was one time.

Q.Mr. xxxxxxx, you carried a gun to her apartment all the time.

A.No.

. . .

Q.Mr. xxxxxxx, you and your brother gave Pat Murray crack on a routine basis?

A.I have no knowledge if my brother gave her, but I am positive that I gave her--

Q.You did supply--

THE COURT:Let him finish the answer. You are positive, what?

THE WITNESS:I know that I had gave her drugs before.

Q.(By Mr. Kopel) You gave her crack on more than one occasion, didn't you Mr. xxxxxxx?

A.No, sir.

. . .

Q.You gave her drugs a lot, Mr. xxxxxxx, why don't you just admit it?

MS. ROBERTS:Objection. It's argumentative.

THE COURT:Overruled.

THE WITNESS:Well, I gave her drugs to keep the gun there that I specifically recall, but I am not sure whether I recall her buying drugs from me.

Q.I didn't ask whether she bought drugs. I said you gave her drugs on many occasions, and I said why don't you just admit it.

A.No.

(11/12/96 Tr. 120-21) (emphasis added). These challenges to defendant's testimony on cross-examination improperly suggested to the jury that the prosecutor was aware of evidence not before the jury that would contradict defendant and help to establish guilt. See, e.g., United States v. Young, 470 U.S. 1, 18-19 (1985) (improper for prosecutor to convey impression of having additional evidence not presented to jury).

D. The Prosecutor Improperly Expressed His Personal Opinion as to Defendant's Credibility

In his closing argument, the prosecutor stated:

[W]hat about Rico xxxxxxx when he was sworn under oath to give his address to the Court. "Where do you live, sir?" Is that a hard question? 5 Rhode Island Avenue. He admitted that he was hiding out with his girlfriend in New Carollton, Maryland. The man lied to the Court under oath having to do directly with this case, with this case and his efforts to escape apprehension in this case.

(11/13/96 Tr. 78) (emphasis added). The evidence did not support this assertion because defendant clearly testified that he lived and resided at several locations. The prosecutor also stated:

And when Rico xxxxxxx gets up on that witness stand and tells you he was never in a conversation, never heard of a snitch -- hear no snitch, see no snitch, know no snitch -- you know that this guy is not telling you the truth . . .

(11/13/96 Tr. 63) (emphasis added). The prosecutor further improperly attacked defendant's credibility and bolstered that of other witnesses in the following statements:

[Y]ou heard over a dozen witnesses who corroborated virtually every single thing that Thomas White told you about who shot him and why he was shot and how he was shot. Unlike this man, Rico xxxxxxx, who exercised his right to take the witness stand yesterday and testif[ied] to alleged fact after alleged fact that was contrary to virtually everything that every other witness told you, and, more important, contrary to the most basic sense of common sense and human experience.

(Id. at 49) (emphasis added). To the contrary, no witness corroborated White regarding who shot him and only Williams testified to the shooting. The prosecutor also argued:

Ladies and gentlemen, there was a network of communication and discussion about these rumors [of snitching], and to say that a man in the middle of Kelly-Miller, Rico xxxxxxx, could not have heard these rumors and knew nothing about this snitching, ladies and gentlemen, is that not an insult to the jury's intelligence, the finders of fact?

(Id. at 114) (emphasis added). See, e.g., People v. Scott, 629 N.Y.S.2d 267, 268 (N.Y. App. Div. 1995) (error for prosecutor to "denigrate[] the defendant by referring to his testimony as 'an insult to one's intelligence'").

This Court has held that use of the words "lies" and "lying" are not improper in cases that turn on a defendant's credibility. See, e.g., United States v. Donato, 99 F.3d 426, 432 (D.C. Cir. 1996); United States v. Dean, 55 F.3d 640, 665 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 1288 (1996). However, Dean involved perjury charges, and Donato involved fraud. In each of those cases, the government was required to prove the defendant's lack of credibility beyond a reasonable doubt, as an element of the offense. In contrast, in the instant case, defendant's credibility is not an element of the case, and the prosecutor's challenges implicate the fairness of the proceeding. Furthermore, in Dean (on which Donato relies), this Court did not abandon the requirement that the prosecutor "stick[] to the evidence and refrain[] from giving his personal opinion." 55 F.3d at 665.

In Young, 470 U.S. at 14, the Supreme Court found a prosecutor's statements of personal belief as to the defendant's guilt to be error, though it did not reverse because the statements in that case were "invited" by defense counsel. The Court cited with favor American Bar Association guidelines stating:

It is unprofessional conduct for the prosecutor to state his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of defendant.

Id. at 8 (citing ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980); see also United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993) ("highly improper" government reference to defendant as liar "skirts the precipice of reversible error"), cert. denied, 511 U.S. 1096 (1994); Powell v. United States, 455 A.2d 405, 408-09 (D.C. 1983) (where credibility of defendant is crucial to verdict, personal opinion by prosecutor, including statement that defendant "concocted for you a ridiculous story," improper and, considered cumulatively with other errors, substantially prejudicial).

E. Additional Prosecution Errors

The prosecutor also committed a number of additional errors. For example, in rebuttal, the prosecutor improperly attempted to put defendant's hat on his own head and apparently put his own scarf around his face. (11/13/96 Tr. 109). In addition, throughout his argument, the prosecutor improperly prefaced numerous remarks with the phrase "I submit . . . ." (11/13/96 Tr. 48, 59, 74, 76, 77, 79, 120). See, e.g., United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir. 1994) ("I submit" is not equivalent to "I believe" but can indicate improper statement of personal belief) (citing United States v. Krebs, 788 F.2d 1166, 1176-77 (6th Cir.) cert. denied, 479 U.S. 930 (1986)). Further compounding the errors cited above, in response to defense counsel's statement in closing argument that "on occasion, as I listened to the prosecutor's opening statement, I wondered if I was in the wrong courtroom," the prosecutor stated: "I challenge anyone in the courtroom to state one fact that was uttered in our closing that was not proven by hard, solid evidence . . ." (11/13/96 Tr. 89, 109).

In rebuttal, the prosector described the defense arguments three times as rhetorical or as "very shiny or very powerful rhetoric." (Id. at 115-16). The prosecutor went on to state:

So when someone asks you, is Donna Swann's image of the letter being passed around guilt beyond a reasonable doubt, that's a trick question, and that's not how you deliberate.

(Id. at 117) (emphasis added).

The prosecutor stated that "Thomas White trusted you with [his] answers." (Id. at 79) (emphasis added). In closing, the prosecutor stated:

I will conclude by asking you to think of one principle that binds every one of us in this courtroom and in this courthouse when you think of Thomas White's testimony. Its a principle which, in its practical application, says: You can't go out in the street and fill a human being's body full of bullets just because he's a drug dealer, and for that reason alone get away with it. You can't go out in the street and fill a man's body full of bullet holes and get away with it just because the man was an informant.

(Id. at 80) (emphasis added). These statements improperly created sympathy for the victim, and inflamed the passions and prejudices of the jury. See, e.g., Childress, 58 F.3d at 715; Monaghan, 741 F.2d 1434, 1442 (D.C. Cir, 1984), cert. denied, 470 U.S. 1085 (1985).

F. The Prosecutor's Misconduct Caused Substantial Prejudice and Led to a Miscarriage of Justice

In Berger v. United States, 295 U.S. 78, 84-85 (1935), the Supreme Court held that a prosecutor's misconduct in "misstating the facts," "putting into the mouths of [] witnesses things which they had not said," "assuming prejudicial facts not in evidence," and "bullying and arguing with witnesses" warranted reversal. The Court also recognized the obligation of the United States Attorney to refrain from "foul" blows. Id. at 88. None of the errors cited above, individually, rises to the level of substantial prejudice or a miscarriage of justice. It is their number and cumulative effect that tainted the outcome of this trial. Compare Berger at 633 (noting "pronounced and persistent" misconduct) with United States v. Perholtz, 842 F.2d 343, 361 (D.C. Cir.) (two remarks in lengthy closing insufficient to constitute plain error), cert. denied, 488 U.S. 821 (1988).

The prosecution errors went to the heart of the government's case against defendant. Mr. xxxxxxx's defense at trial was mistaken identity. With respect to identity, the government's case relied exclusively on the testimony of White, whose credibility was in question because he gave several descriptions of the shooter, he had originally stated at the hospital that he was unable to identify the shooter, and he continued to sell drugs and carry weapons despite his cooperation agreement. Furthermore, the government presented no direct evidence that defendant either knew White was a confidential informant or heard rumors to that effect.

For these reasons, the prosecution's efforts to bolster the testimony of Romeo Williams -- the only eyewitness to the shooting other than White -- had a particularly prejudicial effect. Among the most egregious of those attempts were the prosecutor's statement that Williams had identified the shooter and his replacement of Williams' description of the shooter with the prosecutor's own "exquisitely perfect" version. In addition, the prosecution twice described Williams' description of the shooter as a "perfect" corroboration of White's (which itself varied considerably). To the contrary, Williams' description differed from White's in significant respects, including Williams' detailed description of the "new" type of ski mask worn by the shooter. The prosecutor's suggestion that he had evidence not before the jury, his overstatement of the evidence that defendant was involved in drug sales and his attacks on defendant's credibility were also substantially prejudicial.

Finally, the steps taken to mitigate the errors in this case were minimal, at best. The district court omitted certain opening jury instructions that would have assisted the jury in discounting the prosecutor's distortions and gave the majority of its closing instructions before, rather than after, the prosecutor's closing and rebuttal, leaving the government with the last word. Furthermore, in this case, the defense did not invite prosecution errors. See, e.g., Young, 470 U.S. at 11-18 (viewed in context of invitation from defense, prosecution errors did not constitute miscarriage of justice).

"This circuit has long made clear that the government must take care to ensure that statements made in opening and closing arguments to the jury are supported by the evidence at trial." United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir.) (citing Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969)), cert. denied, 116 S. Ct. 1867 (1996); see also United States v. Foster, 982 F.2d 551, 555 (D.C. Cir. 1993) (misconduct for prosecutor to "stra[y] from 'the facts in evidence'" (citation omitted)).

For all of the reasons stated above, defendant respectfully requests that this Court reverse his conviction and remand this case for a new trial.

III. THE DISTRICT COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY DENYING HIM ACCESS TO COUNSEL DURING A RECESS HELD BETWEEN CROSS-EXAMINATION AND REDIRECT EXAMINATION

A. Standard of Review

The district court's denial of defendant's motion for new trial involves a question of constitutional law, to be reviewed de novo. See, e.g., United States v. Roach, 108 F.3d 1477, 1483-84 (D.C. Cir.), cert. denied, 118 S. Ct. 446 (1977). Defendant is not required to show prejudice to obtain a reversal of his conviction. See Perry v. Leeke, 488 U.S. 272, 278-80 (1989); Mudd v. United States, 798 F.2d 1509, 1513 (D.C. Cir. 1986) (reversal required per se for denial of right to counsel during "substantial" trial recess).

B. Defendant's Sixth Amendment Right to Counsel and His Right to Testify Were Violated By the District Court's Order Prohibiting Consultation With Defense Counsel Following Cross-Examination, When that Consultation Would Not Have Interrupted the Administration of the Trial

A defendant's Sixth Amendment right to effective assistance of counsel is violated by a court order prohibiting discussions with defense counsel during an overnight recess occurring after the defendant's direct examination and before cross-examination. Geders v. United States, 425 U.S. 80 (1976). Those rights are violated even where the order prohibits only discussions about the defendant's testimony. See Mudd v. United States, 798 F.2d 1509, 1513 (D.C. Cir. 1986). The same right is not violated by a restriction prohibiting discussions between the defendant and defense counsel during a 15-minute recess between the defendant's direct testimony and cross-examination. Perry v. Leeke, 488 U.S. 272 (1989).

Though this case involved a brief recess instead of an overnight recess, it differs from Perry because the recess here occurred after cross-examination had concluded, whereas in Perry (as well as Geders and Mudd), the recess in question occurred after direct examination and prior to cross-examination. The district court did not find this distinction to be of "constitutional significance." xxxxxxx, 955 F. Supp. at 135. However, in Perry, the Supreme Court was primarily concerned with protecting the integrity of the defendant's testimony on cross-examination:

Cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness' testimony at just the right time, in just the right way. Permitting a witness, including a criminal defendant, to consult with counsel after direct examination but before cross-examination grants the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess. . . .[C]ross examination of a witness who is uncounseled between direct examination and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney. "Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination."

488 U.S. at 282-83 (citing United States v. DiLapi, 651 F.2d 140, 151 (2d Cir. 1981) (Mishler, J., conc.), cert. denied, 455 U.S. 938 (1982)). The dissent in Perry also viewed these concerns as central to the majority's reasoning, pointing out that the majority assumed the existence of "a general 'rul[e]' forbidding attorney-witness contact between a witness' direct and cross-examination" without citation of authority. Perry at 288-89 (Marshall, J., dissenting). The dissent also asked:

Does the majority's rationale encompass recesses during the defendant's direct or redirect testimony, or just those after the direct examination has concluded?

Id. at 296.

Both Geders and Mudd also support a distinction between consultation prior to cross-examination and consultation prior to redirect examination. The Court in Geders, for example, noted that the purposes of establishing a "rule on witnesses" apply with much less force to a criminal defendant, who as a matter of right is present for all testimony, and who may discuss his or her testimony with counsel up until the point of taking the witness stand. 425 U.S. at 88. The right to confer with counsel before direct testimony should also apply to discussions with counsel prior to redirect examination, to the extent such discussions do not interrupt the administration of the trial. Furthermore, the risk of improper "coaching" prior to redirect examination is no greater than the same risk prior to direct examination. Thus, both courts in Geders and Mudd observed that any risk of improper coaching can be eliminated if the trial court refuses to call a recess between direct and cross-examination, suggesting that they did not view redirect examination to pose a similar risk. See, Geders, 425 U.S. at 90; Mudd, 798 F.2d at 1512. Even if discussions prior to redirect examination did pose some additional risk, any increased risk would be minimal in comparison to the Sixth Amendment rights infringed on by prohibiting those discussions. See Geders, 425 U.S. at 91 (conflict between denial of right to counsel and risk of improper "coaching" must be resolved in favor of Sixth Amendment); Mudd, 798 F.2d at 1512 (same).

In his Perry dissent, Justice Marshall raised additional concerns regarding possible legitimate consultations prior to redirect examination:

The majority assumes that it is possible to distinguish discussions regarding trial strategy from discussions regarding testimony. I am not so sure. Assume, for example, that counsel's direct examination of the defendant inadvertently elicits damaging information that can be effectively neutralized on redirect only if the defendant has the opportunity to explain his direct testimony to counsel. If a recess were called, the ensuing attorney-defendant discussion would seem to be as much about trial strategy as about upcoming testimony. Without a chance to speak with the defendant, counsel will be hampered in knowing whether redirect is even advisable.

Perry, 488 U.S. at 295 n.8.

As these concerns suggest, the district court's order below also implicated defendant's right to testify. See Rock v. Arkansas, 483 U.S. 44, 49-53 (1987) (outlining statutory and constitutional right to testify arising out of Fifth, Sixth and Fourteenth Amendments); see also United States v. Ortiz, 82 F.3d 1066, 1070-71 (D.C. Cir. 1996) ("right to testify [] is personal to the defendant and cannot be waived by counsel or the court;" however, defendant not required to express desire to testify directly to court). The district court's order prevented defendant from informing defense counsel whether he wished to testify on redirect, during a recess that required no interruption in trial proceedings. In these circumstances, defendant's right to counsel and his right to testify were infringed upon. See, e.g., Rock v. Arkansas, 483 U.S. at 55-56 ("the right to present relevant testimony is not without limitation. . . . But restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve").

In this case, the government's cross-examination of defendant was more than twice the length of the direct examination, and the court allowed the prosecution to inquire extensively into prejudicial areas such as defendant's knowledge of the drug business, and other areas outside the scope of direct. Accordingly, it was error and was not harmless for the court to deny defendant the right to confer with counsel during the 25-minute recess that took place, whether or not counsel would have had such a right had no recess been ordered.

For these reasons, defendant respectfully requests that the Court reverse his conviction and remand for a new trial.

IV. THE DISTRICT COURT PLAINLY ERRED IN SENTENCING DEFENDANT UNDER BOTH FEDERAL AND DISTRICT OF COLUMBIA LAW FOR ESSENTIALLY SIMILAR OFFENSES STEMMING FROM A SINGLE COURSE OF CRIMINAL CONDUCT, AND UNDER TWO DISTRICT OF COLUMBIA ASSAULT STATUTES THAT MERGE

A.Standard of Review

As noted above, this court reviews a constitutional question of law de novo. Where defendant did not object before the district court, this court will reverse where the error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" United States v. Olano, 507 U.S. 725, 736 (1993).

B. The Double Jeopardy Clause Prohibits the Imposition of Multiple Sentences for Essentially Similar District of Columbia and Federal Crimes, Particularly Where the Government Circumvents a Federal Statutory Scheme to Obtain a Longer Sentence

The government charged defendant with six counts, including two federal counts and four District of Columbia counts. All of these counts stemmed from a single incident, the shooting of Thomas White. Counts One and Two, alleging violations of 18 U.S.C. § 1513(b) and 924(c), respectively, required a showing that defendant (1) knowingly caused bodily injury to a person with the intent to retaliate against that person for providing information to the government; and (2) used or carried a firearm in connection with the crime charged in Count One. Count Three involved assault with intent to kill while armed with a pistol and Count Four involved aggravated assault, or intentionally causing serious bodily injury while armed with a pistol, in violation of D.C. Code §§ 22-501 and 3202, and 22-504.1 and 3202, respectively. Count Five required a showing of possession of a firearm during a crime of violence in violation of D.C. Code 22-3204(b) and Count Six involved possession of an unlicensed firearm in violation of D.C. Code § 22-3204(a). Not only is D.C. Code § 22-3204(b) a lesser included offense of 18 U.S.C. § 924(c), the District of Columbia assault charges are essentially similar to 18 U.S.C. § 1513(a) and (b).

This Court has held that the United States Attorney may not obtain multiple judgments for essentially similar crimes arising out of federal and District of Columbia statutes. See, e.g., United States v. Shepard, 515 F.2d 1324, 1336 (D.C. Cir. 1975); United States v. Knight, 509 F. 2d 354, 361-62 (D.C. Cir. 1974); United States v. Spears, 449 F.2d 946, 954-55 (D.C. Cir. 1971). Convictions under both statutory schemes cannot stand even if a defendant received concurrent sentences. See, e.g., Knight, 509 F.2d at 363; Spears, 449 F.2d at 948-49.

In Knight, for example, this Court explained that the District of Columbia and the United States are both arms of the same sovereign, and that multiple prosecutions for the same offense by elements of the same sovereign are barred by the double jeopardy clause. 509 F.2d at 360-361; see also United States v. Mills, 964 F.2d 1186, 1193 (D.C. Cir.) (double jeopardy bars successive D.C. and federal prosecutions for same conduct), cert. denied, 113 S. Ct. 471 (1992); Goode v. Markley, 603 F.2d 973, 976 (D.C. Cir. 1979) (violations of D.C. Code and U.S. Code are crimes against a single sovereign), cert. denied, 444 U.S. 1083 (1980). Citing Spears, the Court in Knight further explained that the test established by Blockburger v. United States, 284 U.S. 299 (1932) -- requiring analysis of the elements of the offense to determine whether each offense requires proof of an additional fact which the other does not -- is not determinative of legislative intent with respect to overlapping federal and District of Columbia criminal statutes. 509 F.2d at 361-62. The Court in Knight overturned multiple sentences for federal mail robbery under 18 U.S.C. § 2113 and armed robbery under D.C. Code §§ 22-2901 and 3202. Id. at 362-63. Similarly, in Spears, this Court overturned multiple sentences under the federal mail robbery statute and the D.C. statute prohibiting assault with a dangerous weapon. 449 F.2d 946, 954. This Court has also struck down multiple convictions under the federal false statements statute, 18 U.S.C. § 1014 (1976), and the D.C. false pretenses statute, D.C. Code § 22-1301 (1973). See United States v. Alston, 609 F.2d 531, 535 (D.C. Cir. 1979), cert. denied, 445 U.S. 918 (1980).

Furthermore, this Court has been particularly willing to strike down multiplicitous convictions where the selection of statutes allows the government to obtain a longer sentence than the maximum sentence permitted under the federal statutory scheme. See, e.g., United States v. Leek, 665 F.2d 383, 387 (D.C. Cir. 1981); United States v. Canty, 469 F.2d 114, 128 (D.C. Cir. 1972). Both Leek and Canty involved multiple convictions for bank robbery under 18 U.S.C. § 2113 and assault with a dangerous weapon under D.C. Code §§ 22-502. As stated in Canty (and cited in Leek):

Instead of prosecuting Richardson entirely within the bank robbery scheme, the Government charged him with the lowest tier of robbery in the federal scheme and sought to punish him for assault, or the aggravated portion of the offense, by reaching out to a catch-all provision in the District of Columbia code. By venturing outside the federal scheme, the prosecution was able to circumvent the scheme's carefully crafted hierarchy of penalties.

469 F.2d at 127-28, cited at 665 F.2d 386. In both of those cases, this Court remanded with directions to vacate the District of Columbia assault convictions.

Leek and Canty are directly applicable here because the government could have elected to prosecute Mr. xxxxxxx under 18 U.S.C. § 1513(a) instead of § 1513(b). Section 1513(a) prohibits an attempt to kill another person with the intent to retaliate against that person for providing information to the government, and authorizes a maximum sentence of 20 years imprisonment. In contrast, § 1513(b), which prohibits causing bodily injury with the same intent, authorizes a maximum sentence of 10 years imprisonment. Instead of proceeding solely under the federal statute, the government obtained District of Columbia convictions for assault with intent to kill and aggravated assault, each enhanced by D.C. Code § 22-3202, and each subject to a maximum sentence of life imprisonment. The government also sought and obtained simultaneous convictions under 18 U.S.C. § 924(c) for use and carrying of a firearm in connection with a crime of violence, which required a mandatory consecutive sentence of 5 years imprisonment, and the lesser included offense of D.C. Code § 22-3204(b), prohibiting possession of a firearm in connection with a crime of violence and authorizing a maximum sentence of 15 years. Accordingly, Counts Three through Five should be vacated, because "it was error to fragment the [crime] and venture outside the federal scheme for a peg on which to hang the aggravated component of the offense." Leek, 665 F.2d at 387.

Furthermore, as this Court found in Canty, the District Court's error in imposing multiple sentences was plain. 469 F.2d at 129 n.21; see also United States v. Johnson, 589 F.2d 716, 717, 720-21 (D.C. Cir. 1978) (overturning dual sentences for federal bank robbery and D.C. armed robbery sua sponte); Spears, 449 F.2d at 948 n. 5 (issue considered on appeal for first time "because of its importance").

C. Under District of Columbia Law, the Offenses of Assault with Intent to Kill and Aggravated Assault Merge

Alternatively, if this Court remands this case with directions for the district court to select between the federal and District of Columbia statutory schemes, it should instruct the district court not to resentence defendant to assault convictions under both D.C. Code §§ 22-501 and 22-504.1. Instead, if the district court elects to vacate defendant's federal convictions, it should also vacate one of defendant's assault convictions. A conviction under § 22-504.1 merges with a conviction under § 22-501 because the D.C. Council did not intend that both statutes would apply to a single incident of assault. See, e.g., United States v. Anderson, 59 F.3d 1323, 1330 n.5 (D.C. Cir. 1995) ("Blockburger approach to statutory construction is simply a means of ascertaining legislative intent, having no independent analytical force if that legislative intent is otherwise evident"), cert. denied, 116 S. Ct. 457 (1997).

In 1994, the D.C. Council enacted the aggravated assault statute, D.C. Code § 22-504.1, at the same time it lowered the sentence for simple assault to a maximum of 180 days. The purpose of these revisions was to distinguish between misdemeanor simple assault, or "petty offenses," and more serious or felonious simple assault. See, e.g., Burgess v. United States, 681 A.2d 1090, 1094, 1096 (D.C. 1996). The legislative history of § 22-504.1 states:

The new crime of aggravated assault has been created. Under current law, the District does not have a felony assault statute. This new assault statute would cover those cases where the [] person knowingly and recklessly causes serious bodily injury to another person. Currently, all assaults are prosecuted under the simple assault statute, more than 4600 cases in 1992. A significant portion of those cases will now be prosecuted as felonies.

Bill No. 10-98, Council of the District of Columbia, January 26, 1994 at 15 (Judiciary Committee Report). Accordingly, felony assault offenses prosecuted as aggravated assault after the effective date of this statute would previously have been prosecuted as simple assault, a lesser included offense of assault with intent to kill. The D.C. Council did not intend to alter that hierarchy of offenses, nor did it intend to create an entirely new type of crime that would justify two assault convictions and sentences for a single incident of assault.

Therefore, in the event that this Court authorizes the district court to resentence defendant under District of Columbia assault statutes on remand, defendant respectfully requests that it instruct the court to vacate defendant's sentence under either D.C. Code § 22-501 or § 22-504.1.

V. THE DISTRICT COURT ABUSED ITS DISCRETION IN DEPARTING UPWARD BY 24 MONTHS UNDER THE SENTENCING GUIDELINES

A. Standard of Review

In reviewing an upward departure, this Court will consider "first, whether the District Court's grounds for departure 'are, as a matter of law, of a kind or degree that may appropriately be relied upon to justify departure' and second, 'whether the facts supporting the [court's] reasoning are clearly erroneous.'" United States v. Root, 12 F.3d 1116, 1120 (D.C. Cir. 1994) (citing United States v. Jones, 948 F.2d 732, 736 (D.C. Cir. 1991). This Court will "assess the reasonableness of the degree of the departure [ ] under the arbitrary and capricious standard." Root at 1120.

B. The District Court Improperly Based Its Decision to Depart Upward on Defendant's Use of a Gun and Bodily Injury Already Taken Into Account in the Sentence

On Count One, the only count subject to the Sentencing Guidelines, U.S.S.G. § 2J1.2 establishes a base offense level of 12. The Court adjusted that base by eight levels, pursuant to § 2J1.2(b)(1), which authorizes such an increase "[i]f the offense involved causing . . . physical injury to a person." Accordingly, defendant's adjusted offense level under the Sentencing Guidelines was 20. Based on a criminal history category of IV, the Guidelines range for that sentence was 51 to 63 months.

In a memorandum in aid of sentencing and at the sentencing hearing, the government requested an upward departure based on the use of a weapon, the extent of bodily injury, and the permanence of the injury. (1/28/97 Tr. 8, 11). Defendant did not contest the eight level adjustment, but argued against an upward departure, noting that the Court was also obligated to impose a five year consecutive sentence under § 924(c) and that there was no showing that White's injury was permanent. Id. at 14-15. The court asked the government whether there was any medical evidence regarding permanency, and the government acknowledged that its evidence was based on White's statements alone. Id. at 19. The court stated:

The issue is whether or not under 2J1.3 there ought to be an upward departure under application [note] four for the use of a weapon, or bodily injury, and the Government relies on -- primarily on 5K2.2. . . . I [] think that the guideline writers did attempt to make a distinction between the normal bribery of a witness or perjury or subordination, or other obstructions . . . of justice, when it talked in (b)(1) about causing or threatening to cause physical injury . . . and application [note] four where it specifically singled out a situation where a weapon was used or bodily injury was caused. The use of a weapon is an added factor that the guideline writers thought ought to be considered, and they direct the Court to chapter five and specifically 5K2.2. . . .

Id. at 24-25 (emphasis added).

In an addendum to the judgment and commitment order, the district court stated:

In its Memorandum in Aid of Sentencing . . .[t]he government argued that (1) because the defendant shot at the victim eleven times and three bullets hit the defendant, causing serious and possibly permanent injury, including possible permanent nerve damage to his arm and injury that resulted in a limp, and (2) because a weapon was used, the 8 level increase for the specific offense characteristic ("causing or threatening to cause physical injury to a person") set forth in Section 2J1.3(b) was not sufficient.

. . .

In the overall circumstances of this case, including the relationship between the defendant and his victim and the extraordinary and violent efforts taken to silence him, the Court concludes that even the outer range of the Guidelines (63 months for Level 20, Criminal History IV) is insufficient and that an upward departure of 24 months is appropriate, resulting in a sentence on Count 1 of 87 months.

[A. ].

The court's comments demonstrate that defendant's use of a gun was a significant factor in the court's decision to depart. However, consideration of this factor was improper, because it was already taken into account under the Guidelines pursuant to § 924(c) and U.S.S.G. 2K2.4. See, e.g., United States v. Zamora, 37 F.3d 531, 534 (9th Cir. 1994) (sentencing under § 924(c) precludes upward departure for risk of violence associated with drug sale); United States v. Henderson, 75 F.3d 614, 618 (11th Cir. 1996) (improper to impose § 924(c) sentence and to depart upward for use of multiple firearms). In a background note to U.S.S.G. § 2K2.4, the Sentencing Commission stated:

To avoid double counting, when a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for explosive or firearm discharge, use or possession is not applied in respect to such underlying offense.

U.S.S.G. § 2K2.4, comment. (backg'd.). In certain cases, a sentence under an enhanced guidelines provision could be longer than a defendant's sentence under § 924(c). In those cases, the Commission authorized an upward departure equivalent to the longer, enhanced sentence. U.S.S.G. § 2K2.4, comment. (n.2). However, that upward departure "shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under [924(c)]." Id.; see also United States v. Oliver, 60 F.3d 547, 555-56 (9th Cir. 1995) (reversing upward departure greater than that authorized by enhancements). Therefore, the Commission has rejected upward departures for the use of guns on other grounds. This Court should remand for resentencing because it is not clear that the district court would have imposed a departure of 24 months without consideration of the gun. See, e.g., Williams v. United States, 503 U.S. 193, 202-03 (1992).

Furthermore, the district court erred in departing upward by 24 months for physical injury. In its policy statement regarding grounds for departure, the Commission stated:

Where [] the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense. . . . [P]hysical injury would not warrant departure from the guidelines when the robbery offense guideline is applicable because the robbery guideline includes a specific adjustment based on the extent of any injury. However, because the robbery guideline does not deal with injury to more than one person, departure would be warranted if several persons were injured.

U.S.S.G. § 5K2.0 (emphasis added). Defendant received an eight level specific increase for physical injury. The Commission explained that U.S.S.G. § 2J1.2, under which defendant was sentenced, covers "[n]umerous offenses of varying seriousness" and that "[t]he conduct that gives rise to the violation may, therefore, range from a mere threat to an act of extreme violence. The specific offense characteristics reflect the more serious forms of obstruction." U.S.S.G. § 2J1.2, comment. (backg'd.) (emphasis added). Accordingly, both physical injury and acts of "extreme violence" were taken into account by the Commission. See, e.g., United States v. Barber, 119 F.3d 276, 285 (4th Cir.) (use of a weapon could not be the basis of an upward departure in a second degree murder conviction because "it is difficult to imagine anything more within the heartland of conduct encompassed by the second degree murder guideline than the use of a dangerous weapon"), cert. denied, 118 S. Ct. 457 (1997). White's physical injury was not "present to a degree substantially in excess" of the heartland, which included "act[s] of extreme violence" as contemplated by the Commission. Even if some departure were justified, the 24-month departure imposed by the district court was too extreme, particularly where defendant received an eight level adjustment on the same grounds, the court did not make a finding with respect to whether the injury was permanent, and defendant was charged and convicted of six crimes for a single criminal incident.

For these reasons, defendant respectfully requests that this Court find that the district court erred in departing, or in considering defendant's use of a gun in determining whether to depart, or in departing upward by 24 months, and remand this case for resentencing.

CONCLUSION

Appellant respectfully requests that this Court reverse his conviction and remand for a new trial for prosecutorial misconduct and for violation of his Sixth Amendment right to effective assistance of counsel and his right to testify, and remand for resentencing on Counts One, Two, and Six only, with instructions

not to depart or to reconsider departure, or, alternatively, for sentencing on Counts Three, Five and Six only.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 500

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Rico xxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

Beverly G. Dyer

CERTIFICATE OF SERVICE

I hereby certify that on March 6, 1998, two copies of the foregoing brief for appellant Rico xxxxxxx and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

Beverly G. Dyer