United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 1998 Decided April 9, 1999
No. 97-3153
United States of America,
Appellee
v.
Talib D. Watson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00276-01)
Peter K. Levitt argued the cause for appellant. With him
on the briefs was Peter M. Brody, appointed by the court.
Karen Melnik, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Wilma A. Lewis,
U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assis-
tant U.S. Attorneys.
Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Dissenting opinion filed by Circuit Judge Garland.
Rogers, Circuit Judge: The critical issue at Talib Watson's
second trial on narcotics-related charges was whether Watson
had a connection to a large stash of cocaine base and heroin
found inside a burgundy Subaru automobile.1 Watson did not
own the Subaru, nor did any witness or fingerprint evidence
place him in the vehicle. To prove his connection to the car,
the government relied on a key to the Subaru that the police
found on Watson when he was arrested, a Shaw's jewelry bag
containing nearly 100 grams of cocaine base that the police
found in the car, and a receipt from a Shaw's store that the
police found in Watson's home. Defense witnesses, however,
placed Watson in church for part of the evening in question
and disputed a police officer's testimony that Watson had the
car key at the time of his arrest. Instead, defense witnesses
connected Everett Hawkins to the Subaru and the car key on
the day and evening in question. To strengthen the evidence
of Watson's connection to the Subaru, the government at-
tempted to prove that the owner of the car was his girlfriend.
The attempt was fumbled, however, when the prosecutor
asked a defense witness a compound question assuming a fact
not otherwise in evidence, namely that the registered owner
of the car was Watson's girlfriend, and then eliminated the
ambiguity in the witness' response by purporting to quote the
witness' testimony during closing argument to the jury. Be-
cause credibility was hotly disputed and the evidence connect-
__________
1 Watson's first trial ended in a mistrial. At this second trial,
he was convicted of possessing 50 or more grams of cocaine base
with intent to distribute (21 U.S.C. ss 841(a)(1), (b)(1)(A)(iii)(1994)),
and aiding and abetting (18 U.S.C. s 2); possession with intent to
distribute cocaine base within 1000 feet of a school (21 U.S.C.
s 860(a)), and aiding and abetting (18 U.S.C. s 2); possession with
intent to distribute heroin (21 U.S.C. s 841(a)(1)), and aiding and
abetting (18 U.S.C. s 2); and assault on a police officer (D.C. Code
Ann. s 22-505(a)(1981)). He was acquitted of firearms charges.
ing Watson to the car was not weighty, we conclude that the
standard jury instructions that the arguments of counsel and
counsel's questions are not evidence were insufficient to miti-
gate the substantial prejudice arising from the prosecutor's
misstatement of the evidence. Accordingly, we reverse the
judgment of conviction and remand the case for a new trial.
I.
Between 5:30 and 6 p.m. on September 27, 1995, the police
received an anonymous telephone call advising that an un-
identified person wearing a black baseball cap, blue jeans,
and a blue jean jacket had been selling drugs all day near 18th
and D Streets, N.E, operating out of a burgundy Subaru with
temporary Maryland tags. Around 9 p.m., five plainclothes
police officers arrived at the scene. According to three
officers, Watson handed a "dark object" to Theodore Ford,
who dropped the object, later determined to be a gun, into a
trash can. When the police attempted to arrest Watson, two
officers testified that he dropped five ziplock bags to the
ground that contained about one gram of cocaine base. A
third officer testified that he removed from Watson's person a
key, a pager, and $57 in United States currency. The key
opened the burgundy Subaru.
Upon searching the Subaru, the police found in the glove
compartment a Shaw's jewelry bag that contained nearly 100
grams of cocaine base, about a half gram of heroin, as well as
a gray sponge, a scale, and empty ziplock bags. According to
the police, when Watson saw that the police had found the
jewelry bag, he attempted to run. The police grabbed him;
Watson hit one of the officers with a police flashlight; and
then as other officers held Watson to the ground he yelled to
the crowd for help. Gun shots erupted from the crowd.
When the area was secure, the police transported Watson and
Ford for processing. Upon executing a search warrant of
Watson's home, the police found an August 8, 1995, receipt
for a purchase at a Shaw's jewelry store.
Watson's defense was part alibi and part mistaken identifi-
cation. The president and a minister of God's Healing Tem-
ple both testified that Watson arrived at church for a recital
between 6 and 7 p.m., around the time the police received the
anonymous tip, and he did not leave until 8 p.m. Other
defense witnesses testified that another man had been selling
drugs out of the Subaru all day and ran, discarding various
items, when the police arrived in response to the anonymous
tip. Leonard Butler, a bystander at the scene, testified that
he saw Everett Hawkins standing in the alley near the trash
can where the gun was found, and that upon seeing the police,
Hawkins ran down the alley discarding objects. Raymond
Thomas testified that he saw Hawkins in the area that day
wearing a jeans outfit and a hat and that Hawkins left the
area when the police arrived. Three other defense witnesses
testified that the police initiated the brawl with Watson,
beating him with the butt of a gun, their fists, and flashlights.
Defense witnesses also disputed the government's evidence
regarding the Subaru. Anthony Shank, another bystander,
testified that he saw an officer remove Watson's shoe laces
and belt, but not the Subaru key, from his person. Raymond
Thomas put Everett Hawkins in the Subaru on the night in
question. A sixteen-year-old high school student testified
that the Subaru belonged to Hawkins, that Hawkins was in
the car on the day in question (and on other occasions), and
that the key introduced into evidence by the government was
the key Hawkins used to open the Subaru. To corroborate
his version of events, the student testified that on the after-
noon of the day in question he left his school books in the
Subaru; the government stipulated that the police found his
books inside the Subaru.
II.
On appeal Watson contends that he is entitled to a new
trial on three grounds: first, the district court abused its
discretion under Rule 403 in admitting his 1988 conviction for
drug trafficking inasmuch as possession was the only contest-
ed issue and there was ample other evidence to show knowl-
edge and intent; second, the district court plainly erred in
allowing expert witness testimony in the form of mirroring
hypotheticals suggesting personal knowledge of Watson's in-
tent to distribute; and third, the district court erred in
denying his motion in limine to restrict the prosecutor from
misstating evidence during closing argument and the prosecu-
tor's subsequent misstatement of the evidence during closing
argument substantially prejudiced his right to a fair trial.
Because we conclude that Watson's third ground requires
reversal of his conviction, we limit our comments on his first
two grounds to matters that are likely to arise upon retrial.
A.
During closing argument to the jury the prosecutor mis-
stated a defense witness' testimony on a critical point and did
so while purporting to quote the witness' testimony. The
unfortunate sequence of events arose when the prosecutor
cross-examined defense witness Raymond Thomas about
whether Tyra Jackson, the registered owner of the Subaru
where the drugs and contraband were found, was Watson's
girlfriend. In asking the question, however, the prosecutor
presented the witness with a compound question assuming a
key fact not in evidence--namely, that Jackson was Watson's
girlfriend--with the result that the witness' response was
ambiguous on the critical point the prosecutor sought to
establish. Yet in closing argument the prosecutor, purport-
ing to quote the defense witness, told the jury that Jackson
was Watson's girlfriend, thereby establishing a stronger con-
nection of Watson to the Subaru than the disputed evidence
regarding the Subaru key and the seven week old sales
receipt from Shaw's jewelry store. Otherwise the Subaru
had been connected only to Jackson as the owner and to
Hawkins as the user of her car. We review the record to
emphasize both the significance of the evidence at issue and
the context in which the prosecutor's error occurred.
On cross examination during the defense case, the prosecu-
tor asked Raymond Thomas about his knowledge of Tyra
Jackson. The prosecutor asked, "Mr. Thomas, you believe
that you know Watson's girlfriend, Tyra Jackson, right?"
Thomas replied: "I never testified I knew her or not." The
prosecutor then asked, "You believe that you may have met
her once or twice, right?" Thomas's response: "Maybe."
Thus, the witness' reference to "her" might have been simply
to Tyra Jackson as an individual rather than as Watson's
girlfriend; the form of the question rendered the response
ambiguous.
Prior to closing argument, Watson's counsel moved in
limine to exclude from the prosecutor's closing argument any
reference to Tyra Jackson being Watson's girlfriend. De-
fense counsel argued that the prosecutor's question had as-
sumed a fact not in evidence, namely that Tyra Jackson was
Watson's girlfriend. As defense counsel recalled, somewhat
inaccurately, the prosecutor had asked Thomas "Have you
ever met Mr. Watson's girlfriend, Tyra Jackson?," and Thom-
as responded "I think I have." The district court stated that
it thought that the witness had answered "Yes," and that any
ambiguity about whether she was Watson's girlfriend should
have been taken care of on redirect; the court ruled that the
witness' answer placed the fact in evidence and denied the
defense motion.
In his initial closing argument, the prosecutor told the jury:
We have the registration to the car, the Subaru. I[t] is
in the name of Tyra Jackson. It's not in the name of ...
Everett Hawkins. It's in the name of Tyra Jackson.
The only evidence we have about Tyra Jackson is Thom-
as's answer, one of the defense witnesses, "Do you think
you met Tyra Jackson?" "Well, I think I met her once
or twice. I think I've met Watson's girlfriend, Tyra
Jackson once or twice." Tyra Jackson's car, the regis-
tration to the Subaru.
In rebuttal closing argument the prosecutor reiterated the
point: "We've got the evidence from [Watson's] witness that
he thinks he knows Tyra Jackson, his [Watson's] girlfriend,
and the title to the car, the registration to the car." After
closing arguments, the district court gave the standard in-
structions that counsel's questions, statements, and argu-
ments are not evidence. See Criminal Jury Instructions for
the District of Columbia, Instr. 1.07, 2.05.
Although a prosecutor's statements in closing argument
will rarely warrant a new trial, see United States v. Young,
470 U.S. 1, 10-11 (1985), United States v. Edelin, 996 F.2d
1238, 1243 (D.C. Cir. 1993), Watson's is such a case. It is
error for counsel to make statements in closing argument
unsupported by evidence, to misstate admitted evidence, or to
misquote a witness' testimony. In the instant case the prose-
cutor's remarks were error to the extent that they misstated
and misquoted Raymond Thomas's testimony. See United
State v. Gartmon, 146 F.3d 1015, 1025 (D.C. Cir. 1998). We
do not decide whether the district court erred in denying
Watson's motion in limine, but focus solely on the prosecu-
tor's misquotation and misrepresentation of the witness' testi-
mony during closing arguments to the jury.2
A misstatement of evidence is error when it amounts to a
statement of fact to the jury not supported by proper evi-
dence introduced during trial, regardless of whether counsel's
remarks were deliberate or made in good faith. See Gart-
mon, 146 F.3d at 1025; United States v. Donato, 99 F.3d 426,
432-33 (D.C. Cir. 1997); United States v. Small, 74 F.3d
1276, 1280-81 (D.C. Cir. 1996); United States v. Perholtz, 842
F.2d 343, 360-61 (D.C. Cir. 1988); Gaither v. United States,
413 F.2d 1061, 1079-80 (D.C. Cir. 1969). The misstatement
constituting error is demonstrated here by comparing the
witness' testimony with the statements made by the prosecu-
tor in closing arguments. See Gartmon, 146 F.3d at 1025;
Perholtz, 842 F.2d at 360; Gaither, 413 F.2d at 1078. The
government does not dispute that the prosecutor purported to
__________
2 Although Watson lists as an issue on appeal that the district
court erred in denying his motion in limine, he never argues the
point in his brief. Accordingly, we decline to address his "asserted
but unanalyzed" argument. Carducci v. Regan, 714 F.2d 171, 177
(D.C. Cir. 1983); Fed. R. App. P. 28(a)(6); see also Washington
Legal Clinic for the Homeless v. Barry, 107 F.3d 31, 39 (D.C. Cir.
1997).
quote Thomas's testimony. Yet the quote was inaccurate;
the error is apparent on the face of the record.
That Watson is entitled to a new trial by reason of the
error is demonstrated by application of this circuit's test
designed to determine whether a defendant has suffered
sufficient prejudice to warrant a new trial. See Gartmon, 146
F.3d at 1026. The test consists of three factors:
"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." We have also framed the test for
prejudice in terms of the severity of the prosecutor's
misconduct, the measures adopted to cure the miscon-
duct, and the certainty of conviction absent the improper
remarks.
Gartmon, 146 F.3d at 1026 (quoting United States v. North,
910 F.2d 843, 895, superseded in part on other grounds, 920
F.2d 940 (D.C. Cir. 1990)). This test applies regardless of
whether our review is for harmless error or plain error.3 Id.
The court determines how the prosecutor's misstatements
prejudiced Watson in light of the evidence presented, asking
not whether evidence was sufficient to convict notwithstand-
ing the error, but rather whether the court can say that the
error did not affect the jury's verdict; if in "grave doubt," the
court cannot affirm Watson's conviction. Kotteakos v. United
States, 328 U.S. 750, 764-65 (1946), cited in Lane v. United
States, 474 U.S. 438, 449 (1986); United States v. Smart, 98
F.3d 1379, 1391-92 (D.C. Cir. 1996).
__________
3 Compare United States v. Richardson, 161 F.3d 728, 737
(D.C. Cir. 1998) (plain error review) with Donato, 99 F.3d at 432-33
(harmless error review). Because Watson sought, by a motion in
limine, to prevent the prosecutor from arguing to the jury that
Jackson was Watson's girlfriend and his motion was denied, any
contemporaneous objection during closing argument would have
been superfluous. See United States v. Mediola, 42 F.3d 259, 260
n.2 (5th Cir. 1994); United States v. Wilson, 26 F.3d 142, 158-60
(D.C. Cir. 1994); United States v. Meija-Alarcon, 995 F.2d 982,
985-88 (10th Cir. 1993).
Each of the relevant factors points to substantial prejudice
in Watson's case. First, the case was close, and credibility
was key. A parade of eyewitnesses for the government and
the defense recounted different versions of what occurred at
critical points, from Watson's whereabouts at the time the tip
was received, to what he was doing when the police appre-
hended him, to where Everett Hawkins fit into the picture,
and most importantly to Watson's connection to the Subaru.
Even though three police officers testified that Watson hand-
ed co-defendant Thomas something that turned out to be a
gun, the jury discredited that testimony. See supra n. 1.
Only one officer claimed he took the car key off Watson's
person and although another officer testified that he may
have seen the key taken off Watson, the testimony about the
key was disputed by defense witnesses. Police testimony
otherwise linking Watson to the Subaru was disputed by
defense witnesses who placed Everett Hawkins in a jeans
outfit in the Subaru at relevant times and otherwise connect-
ed him to the car and the key. There was no fingerprint
evidence linking Watson to either the key or the Subaru.
Aside from Raymond Thomas's ambiguous testimony, the
government's evidence connecting Watson to the Subaru con-
sisted of the disputed testimony that the key was recovered
from Watson's person and a Shaw's jewelry bag found in the
car that the government sought to link to Watson through a
seven week old receipt, which at best showed that he had
purchased something from a Shaw's store.
Second, Raymond Thomas's testimony concerned a central
issue in the case, namely Watson's connection to the Subaru.
Although the police found five ziplock bags near Watson, the
bags contained a relatively small amount of cocaine base, and
the drugs in those bags were of a different concentration than
the drugs recovered from the Subaru. Only the 100 grams of
cocaine base, heroin, and drug paraphernalia found in the
glove compartment of the Subaru permitted a reasonable
inference of knowledge and intent to distribute, see, e.g.,
United States v. Stephens, 23 F.3d 553, 555-58 (D.C. Cir.
1994), and triggered heightened penalties under 21 U.S.C.
s 841(b)(1)(A)(iii)(1994). Yet Watson was not found in the
car, nor did any witness or fingerprint evidence place him
there. Connecting Watson to the Subaru was essential to the
government's distribution case and its evidence in that regard
was disputed. These circumstances highlight the prejudicial
nature of the prosecutor's error.
Moreover, the prosecutor's question reflects his under-
standing that connecting Watson to the drugs in the Subaru
was critical to the government's distribution case. Yet at the
time he cross-examined Raymond Thomas, the prosecutor
had yet to establish that the owner of the Subaru was
Watson's girlfriend. The lack of clarity in Raymond Thom-
as's testimony stemmed directly from the prosecutor's use of
a compound question and his assumption of a key fact not in
evidence. The defense, of course, had no obligation to object
to the prosecutor's question, much less to perfect the govern-
ment's case by clarifying the witness' response on reexamina-
tion, but could rest satisfied with the response, which did not
produce damaging testimony. Instead, defense counsel could
properly move in limine to restrict the prosecutor's closing
arguments, thus avoiding highlighting before the jury wheth-
er Jackson was Watson's girlfriend. Of course, once the
district court denied defense counsel's in limine motion,
assuming for purposes of this appeal no error in the district
court's ruling, the prosecutor could properly use the witness'
testimony in closing argument to show that Jackson was
Watson's girlfriend. But the prosecutor was not thereby
relieved of the obligation to ascertain the testimony with
accuracy, much less the obligation to quote it accurately. The
in limine motion placed the prosecutor on notice that at least
defense counsel thought the prosecutor had not elicited a true
admission from the witness that he knew Tyra Jackson was
Watson's girlfriend. The prosecutor also knew that his com-
pound question made a clear response doubtful. Neverthe-
less, rather than simply shrewdly characterizing or merely
paraphrasing the witness' testimony, the prosecutor present-
ed an inaccurate direct quotation of Thomas's testimony to
the jury, eliminating the ambiguity on a central point. So far
as the record reveals, no effort was made, either during
argument on the in limine motion or before closing argu-
ments, to check the court reporter's notes on Raymond
Thomas's testimony; the absence of a transcript was irrele-
vant in this regard and cannot excuse prosecutorial careless-
ness.
Finally, the government can point to nothing by way of
mitigation of the prejudice beyond the standard instructions
that the opening statements and closing arguments of counsel
are not evidence and that a lawyer's question is not evidence.
See Criminal Jury Instructions for the District of Columbia,
Instr. 1.07, 2.05. Although the ameliorative effects of jury
instructions are not to be underestimated, see Greer v. Miller,
483 U.S. 756, 766 n.8 (1987); Richardson v. Marsh, 481 U.S.
200, 211 (1987), there are limits when, as here, the instruc-
tions did not address the prosecutor's error in closing argu-
ment, and the error affected a central issue. Consequently,
the instructions given could neither undo the error nor miti-
gate its prejudicial effects under these egregious circum-
stances. See United States v. Teffera, 985 F.2d 1082, 1089 n.6
(D.C. Cir. 1993); see also Arizona v. Washington, 434 U.S.
497, 512-13 (1978); United States v. Williams-Davis, 90 F.3d
490, 507 (D.C. Cir. 1996); cf. Small, 74 F.3d at 1284.
In sum, the error was not harmless. "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 evidence introduced at trial."
Small, 74 F.3d at 1280. Faced with only minimal evidence on
a key element in its case--Watson's connection to the Suba-
ru--the prosecutor sought to make the critical link by pur-
porting to quote a defense witness to state that Tyra Jackson,
the owner of the car, was Watson's girlfriend. The govern-
ment does not dispute that the prosecutor purported to quote
this testimony, nor that a check of the court reporter's notes
could have avoided the error. Moreover, the quote was
completely wrong. Particularly where a defendant has filed
an anticipatory motion in limine, the prosecutor was alerted
to the fact that the existence of any evidence supporting this
alleged relationship was disputed. The prosecutor's closing
argument, then, cannot be absolved as no more than a shrewd
characterization of testimony; it was wrong and based on no
evidence in the trial record. Moreover, the prosecutor re-
peated his misstatement: once in his initial closing argument
by direct quotation and again on rebuttal by reference.
There can be no doubt that the error was significant, for it
went to the heart of the government's case on a matter with
respect to which the government had no other weighty evi-
dence. Given the centrality of the government's misstate-
ments to the jury and the hotly contested other evidence of
Watson's connection to the car, Watson has demonstrated
substantial prejudice warranting a new trial.
B.
Insofar as Watson's evidentiary contentions are likely to
arise upon retrial, we offer two observations.
First, the admission of Watson's 1988 drug trafficking
conviction under Rule 403 undoubtedly presents a close ques-
tion. As Watson points out, in Old Chief v. United States,
117 S. Ct. 644 (1997), the Supreme Court emphasized the
appropriateness of the contextual approach in considering the
probative value of prejudicial evidence under Rule 403. See
117 S. Ct. at 652. While Old Chief reinforces the prosecutor's
right to tell the story with "descriptive richness," id. at 653,
Watson's 1988 conviction seems, at best, remotely probative
of non-contested issues. Even assuming, as in United States
v. Crowder, 141 F.3d 1202, 1204-05 (D.C. Cir. 1998) (in banc),
Watson's prior drug involvement was of a similar type or
conducted in a similar place,4 its relevance to intent and
knowledge is limited to establishing that Watson knows how
to sell drugs. Cf. United States v. Burch, 156 F.3d 1315, 1324
(D.C. Cir. 1998). The prior conviction is inadmissible to
prove the contested issue, namely, possession. Yet the preju-
dicial effect of the evidence is strong because it invites the
jury to infer that Watson has a propensity for drug offenses
__________
4 Watson's prior conviction, seven years old at the time of his
arrest, was for possession with intent to distribute cocaine, not
cocaine base, that was discovered during a police search of a
residence. While the residence was on the same block as the
Subaru, there was no transaction at all.
and therefore the drugs and paraphernalia found in the
Subaru must be his. It is this inference that Rule 404(b)
intends to preclude, and the danger has been recognized by
this and other courts. See, e.g., United States v. (Dennis)
Mitchell, 49 F.3d 769, 776-77 (D.C. Cir. 1995); United State
v. (Timothy) Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994);
United States v. (Michael) Johnson, 970 F.2d 907, 912-14
(D.C. Cir. 1992). At a new trial, the district court can
consider anew its Rule 403 balancing, considering as well
whether a limiting instruction like those in the prior trials,
distinguishing between "act" and "intent," is sufficient to
overcome the prejudicial effect of the prior conviction. See
Crowder, 141 F.3d at 1210.
Second, there is no basis in the record before the court on
which to conclude that there was error, much less plain error
by the district court in admitting the expert's testimony
because, contrary to Watson's contention, there were no
proscribed "mirroring hypotheticals" that in tandem with the
form of the prosecutor's questions and the expert's responses
impermissibly gave an opinion on Watson's state of mind.
See, e.g., United States v. Smart, 98 F.3d 1379, 1385-89 (D.C.
Cir. 1996); United States v. Boyd, 55 F.3d 667, 670-72 (D.C.
Cir. 1995); United States v. (Keith) Mitchell, 996 F.2d 419,
421-22 (D.C. Cir. 1993). If some questions may have come
close to the line of questioning that the court has found
objectionable, see, e g., Boyd, 55 F.3d 667, expert testimony
regarding the modus operandi of drug dealers, even if elicited
through mirroring hypotheticals, does not violate Federal
Rule of Evidence 704(b).5 See United States v. Toms, 136 F.3d
176, 184-86 (D.C. Cir. 1998). Rather, what is proscribed is
__________
5 Federal Rule of Evidence 704 provides that "testimony in the
form of an opinion or inference otherwise admissible is not objec-
tionable because it embraces an ultimate issue to be decided by the
trier of fact," see Fed R. Evid. 704(a), except "[n]o expert witness
testifying with respect to the mental state or condition of a defen-
dant in a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged," see Fed. R.
Evid. 704(b).
questioning that produces responses suggesting some special
knowledge of the defendant's mental processes. See Toms,
136 F.3d at 185. Examples of what is proscribed include
expert testimony that the hypothetical person's conduct "met
the elements" of the charged offense, Smart, 98 F.3d at 1385,
that the hypothetical individual's possession was "consistent
with intent to distribute," Boyd, 55 F.3d at 672, and that the
hypothetical person's intent "was intent to distribute," Mitch-
ell, 996 F.2d at 422. Here, by contrast, the prosecutor asked
the expert about drug trafficking generally in the District of
Columbia. He also asked how many "dosage units" would be
contained in 100 grams of cocaine base, to which the witness
responded "700," and concluded that "[m]y experience easily
tells me that if any one individual possesses what's equivalent
to 700 bags of crack cocaine [sic] is in the business of making
money selling drugs in the streets of Washington, D.C. or
whatever." Although the prosecutor did ask the expert
whether he was familiar with the case, risking that the jury
might be led to think that the expert had first-hand informa-
tion about Watson, this reference did not indicate any famil-
iarity with Watson's mental processes. See United States v.
Lipscomb, 14 F.3d 1236, 1242-43 (7th Cir. 1994).
Accordingly, we reverse the judgment of conviction and
remand the case for a new trial.
Garland, Circuit Judge, dissenting:
In the vast majority of criminal cases tried in this circuit,
transcripts of witness testimony are not available at the time
of closing arguments. This means that prosecutors and
defense counsel must rely on their recollections in making
those arguments, and that judges must rely on theirs in
ruling on objections. Innocent mistakes of recollection are
inevitable and hardly uncommon. For protection from preju-
dice, our adversary system relies on the opportunity each side
has to challenge the other's misstatements before the jury,
and upon the court's standard admonition that it is the jury's
recollection that controls. In the end, the jury's memory of
what a witness actually said provides the corrective for errors
made by the parties.
In light of this reality, it is not surprising that although "it
is error for a prosecutor to mischaracterize evidence in a
summation[,] [i]t is also clear ... that an error in a prosecu-
tor's summation will only rarely warrant reversal of a convic-
tion." United States v. Donato, 99 F.3d 426, 432 (D.C. Cir.
1996); see also United States v. Edelin, 996 F.2d 1238, 1243
(D.C. Cir. 1993) ("[W]e have generally been 'chary of revers-
ing convictions solely on the grounds of a misstatement in a
closing argument.' ") (citation omitted). Indeed, it is so rare
that my colleagues are unable to cite a single case in which
we have reversed a conviction solely for a prosecutor's mis-
quotation of testimony that the jury itself heard.
It is "the law of this circuit that, even where challenges to a
prosecutor's closing argument have been preserved through
timely objection, we will reverse a conviction and require a
new trial only if we determine that the defendant has suffered
'substantial prejudice.' " United States v. Childress, 58 F.3d
693, 715 (D.C. Cir. 1995) (quoting United States v. North, 910
F.2d 843, 897-98 (D.C. Cir. 1990)). We have "framed the test
for prejudice in terms of the severity of the prosecutor's
misconduct, the measures adopted to cure the misconduct,
and the certainty of conviction absent the improper remarks."
Id. at 715; see also United States v. Gartmon, 146 F.3d 1015,
1026 (D.C. Cir. 1998) (noting variety of similar formulations).
It is only in the most egregious of cases that we will consider
reversal, see North, 910 F.2d at 897 n.33, and an examination
of the applicable factors makes clear that this is not such a
case.
A
As the court recognizes, the first step in determining the
severity of a prosecutor's misstatement is to compare it with
the witness' actual testimony. A misstatement is error, but
only "to the extent that [it] overstate[s]" the testimony.
Gartmon, 146 F.3d at 1025 (quoting United States v. Per-
holtz, 842 F.2d 343, 360 (D.C. Cir. 1988)). In this case there
clearly was an overstatement, but the difference between the
witness' testimony and the prosecutor's characterization is
not as substantial as the court's opinion suggests.
The problem in this case began with a classic error in trial
technique. See Thomas A. Mauet, Fundamentals of Trial
Techniques 385 (1980). The prosecutor asked what was in
essence a compound question: "Mr. Thomas, you believe that
you know Watson's girlfriend, Tyra Jackson, right?" In so
doing, he effectively asked both whether the witness knew
Ms. Jackson, and whether the witness knew her to be the
defendant's girlfriend. At that point, the equally-classic "ob-
jection as to form" would have been in order. Defense
counsel, however, did not make it. Instead, the cross-
examination unfolded as follows:
Prosecutor: Mr. Thomas, you believe that you know
Watson's girlfriend, Tyra Jackson, right?
Thomas: I never testified I knew her or not.
Prosecutor: You believe that you may have met her
once or twice, right?
Thomas: Maybe.
The court may be correct in stating that the defense had no
obligation to object to the prosecutor's question. But my
colleagues are wrong in suggesting that the defense could
"rest satisfied" with the witness' response because it "did not
produce damaging testimony." Op. at 10. In fact it did. As
the court notes, the compound question yielded an ambiguous
response--the classic consequence of asking such a question.
But ambiguity is not the same as the absence of evidence. A
reasonable jury could have concluded that Thomas would
have disputed the implication that Jackson was Watson's
girlfriend if it were untrue or if he did not know it to be
true--particularly since he had already exhibited a willing-
ness to resist the prosecutor's assumptions. See 5/1/96 Tr. at
50. ("I never testified I knew her or not."). Accordingly, a
reasonable jury could well have interpreted Thomas' answers
as assent to the implied question--do you know Tyra Jackson
to be Watson's girlfriend? Although the defendant did not
have to risk "perfect[ing] the government's case by clarifying
the witness' response," Op. at 10, by not doing so he accepted
the risk that the jury would reasonably read the ambiguity
against him.1
It is true that when the prosecutor recounted the exchange
in closing argument, he erred by "eliminating the ambiguity"
in Thomas' testimony. Op. at 10. The prosecutor told the
jury that Thomas had said: "I think I've met Watson's
girlfriend, Tyra Jackson once or twice." This was a stronger
version of the witness' testimony and hence was error. But
since it was an inference that a reasonable jury could have
derived on its own, the measure of the difference is one of
degree. The prosecutor did no more than make express what
a juror could reasonably have found implicit in the witness'
answers. This was error, but not egregious error.
Nor was the prosecutor's misstatement an intentional one.
Recalling the precise contours of a witness' testimony is a
__________
1 On the other hand, as the district court pointed out, if Jackson
were not defendant's girlfriend or if Thomas did not know, defense
counsel could easily have covered the point during his redirect
examination of Thomas. See 5/2/96 Tr. at 24.
difficult task in the best of circumstances, made all the more
difficult here by the witness' ambiguous answer to the prose-
cutor's compound question. When defense counsel made his
motion in limine concerning the statement, he did so orally,
without notice, and without obtaining a transcript to support
his motion. In the absence of that transcript, all of the
participants were forced to rely on their recollections--and all
of those recollections were erroneous to some degree. See
Revised Appendix ("App.") 161. Although the prosecutor's
memory was worse than that of defense counsel, it did not
vary significantly from that of the judge.2 Thus, it can hardly
be said that the defense's uncorroborated allegation put the
prosecutor on notice that he had not obtained the admission
he thought he had.
Finally, in measuring the severity of the prosecutor's error,
it is also important to note that it involved just one sentence
in each of the prosecutor's two closing arguments.3 Those
arguments spanned more than twenty pages of transcript.
As we have said many times before, such isolated misstate-
ments rarely amount to severe misconduct. See, e.g., Gart-
mon, 146 F.3d at 1026; North, 910 F.2d at 897; Perholtz, 842
F.2d at 361.
B
The next factor to consider in measuring the substantiality
of prejudice is whether measures were available to mitigate
its impact. The error at issue here was the inaccurate
recitation of testimony that the jury itself heard. Hence, if
__________
2 In response to defense counsel's contention that "there's no
evidence that Tyra Jackson was the girlfriend," the court respond-
ed: "I thought the witness answered 'yes.' " 5/2/96 Tr. at 23.
3 Indeed, while the sentence in the initial closing argument was
erroneous because the prosecutor presented it as if it were a direct
quotation of the witness' testimony, the sentence employed in the
rebuttal appears more as characterization than quotation, and hence
may not have been error at all. See Donato, 99 F.3d at 432
(holding that "fair, if disputed, characterization" of testimony does
not constitute error).
the jury relied on its own recollection, rather than on that of
the prosecutor, the error would be without effect. The judge
gave two separate instructions designed to ensure precisely
that result:
If any reference by the court or the attorneys to
evidence does not coincide with your own recollection of
the evidence, it is your recollection which should control
during your deliberations.
The statements and arguments of the lawyers are not
evidence. They are only intended to assist you in under-
standing the evidence.
The court also gave an additional instruction aimed directly at
the kind of problem engendered by a compound question:
Sometimes a lawyer's question suggests that some-
thing is a fact. Whether or not something is a fact
depends on the witness's answer, not the lawyer's ques-
tion. A lawyer's question is not evidence.
Both the Supreme Court and this court have repeatedly
held such instructions sufficient to mitigate prejudice caused
by prosecutors' misstatements in closing arguments.4 More-
__________
4 See, e.g., Zafiro v. United States, 506 U.S. 534, 541 (1993)
("[T]he District Court admonished the jury that opening and closing
arguments are not evidence.... These instructions sufficed to
cure any possibility of prejudice."); Gartmon, 146 F.3d at 1026
("[T]he judge gave the standard limiting instruction that lawyers'
arguments are not evidence and that the jury's recollection of the
evidence controls. We have repeatedly said this kind of instruction
can mitigate the impact of erroneous jury argument."); North, 910
F.2d at 897 ("Our unwillingness to reverse a conviction has been
particularly pronounced when the trial judge issues curative in-
structions.... Here [the judge] ... explicitly reminded the jurors
that 'the statements, opinion and arguments of counsel are not
evidence'.... [and that] the jurors' 'recollection alone' is control-
ling as to 'all aspects of the evidence.' The District Judge could not
have more directly communicated to the jury the limited evidentiary
value of closing arguments.").
over, it bears emphasizing that this is not a case in which the
prosecutor asserted knowledge of evidence neither seen nor
heard by the jury, nor subject to cross-examination by the
defense.5 In such a case, it might be argued that an instruc-
tion that the jury's recollection controls is of questionable
value since the jury has no recollection on which to rely.
Here, by contrast, the dispute was solely about evidence the
jury did hear, and as long as the jury followed the court's
instructions the prosecutor's error would be mitigated. See
Richardson v. Marsh, 481 U.S. 200, 211 (1987) ("[J]uries are
presumed to follow their instructions.").
We also cannot ignore defense counsel's failure to use his
closing argument to tell the jury that the prosecutor had
misstated the evidence. Pointing out such a misstatement
can have a powerful, even devastating effect on an opponent's
case. Had defense counsel used his closing argument in that
fashion, we doubtless would have found it sufficient to miti-
gate the impact of the misstatement. See, e.g., United States
v. Williams-Davis, 90 F.3d 490, 507-08 (D.C. Cir. 1996)
(holding that although government's opening statement
blamed defendants for two murders as to which it never
introduced evidence, defense counsel was able "to use the
variance between the government's opening and its proof to
sow doubt of the prosecution among the jurors"); North, 910
F.2d at 895; Cross v. United States, 353 F.2d 454, 455 (D.C.
Cir. 1965). The defense's failure to take advantage of this
curative opportunity cannot put it in a better position than if
it had--at least not without creating a powerful incentive to
let misstatements pass without comment in the hope of
obtaining a second bite at the apple if the jury's verdict
should be unfavorable.
__________
5 United States v. Teffera, 985 F.2d 1082 (D.C. Cir. 1993), cited
by the court, is an example of such a case. There, we reversed a
conviction because the evidence was insufficient to convict. See 985
F.2d at 1089. We indicated in dicta, however, that we would also
have reversed based on the prosecutor's repeated references in
closing argument to alleged "eye contact" between the two co-
defendants--which we characterized as "phantom evidence" that
was not "adduced at trial." Id. at 1089 n.6.
C
Finally, we must consider the weight of the government's
evidence. As my colleagues correctly note, the government's
case against Watson cannot be characterized as overwhelm-
ing. But the evidence against the defendant was certainly
"weighty," and that is sufficient to uphold his conviction in
light of the other factors discussed above. See Brecht v.
Abrahamson, 507 U.S. 619, 639 (1993) (holding Kotteakos
harmless error standard satisfied where "evidence of guilt
was, if not overwhelming, certainly weighty"); Childress, 58
F.3d at 716 (indicating that the various factors must be
weighed against each other in determining whether prosecu-
torial remarks caused substantial prejudice). The evidence
tying Watson to $14,000 worth of crack cocaine was as
follows.
First, a search of Watson's person produced a key to a car
that was parked fifteen feet from the spot at which Watson
was arrested. Although the court describes the searching
officer's testimony as "disputed," Op. at 4, that description is
overstated. Only one defense witness, Anthony Shank, testi-
fied about the search of Watson, and he merely said that "the
only thing I saw them remove from him was his shoe strings
and belt." App. 152. Shank did not affirmatively testify that
there was no key; he was not even asked whether he saw a
key. Nor is Shank's testimony inconsistent with the officer
finding the key when Shank was not looking; there was no
testimony that anyone saw the officer find the key elsewhere.
Indeed, although the court may regard Shank's testimony as
a powerful attack on the officer's credibility, apparently de-
fense counsel did not appraise it the same way: he did not
even mention Shank's testimony in his closing argument.6
__________
6 A second defense witness, a high school student, testified that
the key the government introduced into evidence "look[ed] like" a
key he saw in the possession of a different individual (Everett
Hawkins) five hours earlier on the day of Watson's arrest. See
App. 131. Like Shank's, that testimony was not inconsistent with
Watson having the key when he was arrested.
Second, inside the car's glove compartment the police found
large rocks of crack cocaine wrapped in a Shaw's Jewelry
bag. The officers testified that when Watson saw they had
found the bag, he began struggling violently to escape. In-
side the Shaw's bag, along with the crack, were five black
ziplock bags matching five other bags that fell from Watson's
hand when he was arrested. See 4/25/96 Tr. at 19-20, 224.7
And inside Watson's house was a receipt for a purchase at
Shaw's Jewelry just seven weeks before--a purchase made
using the same alias Watson gave police when he was arrest-
ed on the instant charge. It would be surprising if the jury
regarded that purchase as nothing more than an unfortunate
coincidence.
Third, the district court properly admitted, under Federal
Rules of Criminal Procedure 403 and 404(b), evidence that
Watson previously had been convicted of committing the
same crime--possession with intent to distribute cocaine--on
the same city block. See 4/26/96 Tr. at 13-14. Although this
cannot alone prove that Watson possessed the drugs on the
instant occasion, it can be used to prove he intended to
distribute the cocaine in the Shaw's bag, and "may be a 'brick
__________
The court also suggests that the jury disbelieved the police
witnesses, because it acquitted Watson of a firearms charge despite
their testimony that they thought they saw Watson pass a gun to a
codefendant. By the same logic, we could say that the jury
disbelieved Shank, because it found defendant guilty of assaulting a
police officer despite Shank's testimony that the assault was actual-
ly perpetrated by the police. In fact, the better view is simply that
propounded by the Supreme Court in United States v. Watts: "[I]t
is impossible to know why a jury found a defendant not guilty on a
certain charge. An acquittal is not a finding of any fact....
Without specific jury findings, no one can logically or realistically
draw any factual finding inferences." 117 S. Ct. 633, 637 (1997).
7 The court notes that the drugs in the latter five bags were of
a different concentration than the drugs recovered from the car.
That difference was quite small (39% vs. 42%), and not at all
inconsistent with all of the crack cocaine coming from the same
batch. See United States v. Robinson, 59 F.3d 1318, 1320 (D.C. Cir.
1995) (citing testimony of DEA chemist).
in the wall of evidence' proving possession." United States v.
Crowder, 141 F.3d 1202, 1208 n.5 (D.C. Cir. 1998) (en banc).
My colleagues suggest that upon retrial, the district court
may wish to reconsider the admissibility of Watson's prior
conviction. Although the district court is certainly free to
reconsider anything it likes, there is no reason to reconsider
its decision to admit this prior crimes evidence. We have
repeatedly upheld the admission of such evidence in similar
circumstances,8 and the reason the court gives for regarding
admissibility as a close question in this case is unpersuasive.
The court suggests that the evidence of Watson's prior
crime can go only to prove "non-contested issues." Op. at 12.
The court apparently adopts defendant's argument that the
element of intent was uncontested in this case, because his
defense was mistaken identification rather than the absence
of an intent to distribute cocaine.9 But that is precisely the
argument we rejected, en banc, in Crowder, where we held
prior crimes evidence relevant notwithstanding a defense of
mistaken identification and notwithstanding defendant's offer
to stipulate that whoever did possess the drugs in question
had the necessary intent. See Crowder, 141 F.3d at 1206; see
__________
8 See, e.g., United States v. Burch, 156 F.3d 1315, 1324 (D.C.
Cir. 1998); United States v. Mitchell, 49 F.3d 769, 776 (D.C. Cir.
1995); United States v. Johnson, 40 F.3d 436, 441 n.3 (D.C. Cir.
1994). The court notes that Watson's prior conviction was for
possession with intent to distribute cocaine rather than cocaine
base, and that it occurred seven years before his arrest in this case.
Neither circumstance bars admission of Watson's prior conviction.
See, e.g., United States v. Tomberlin, 130 F.3d 1318, 1319-21 (8th
Cir. 1997); United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.
1996); United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.
1996); Mitchell, 49 F.3d at 775-77.
9 I assume that the court is not arguing that the prior crimes
evidence here is "remotely probative" merely because it is inadmis-
sible to prove the issue of possession directly, since prior crimes
evidence is never admissible for that purpose. See Fed. R. Crim. P.
404(b).
also Estelle v. McGuire, 502 U.S. 62, 69-70 (1991) ("[T]he
prosecution's burden to prove every element of the crime is
not relieved by a defendant's tactical decision not to contest
an essential element of the offense.... [The prosecution is
not required] to refrain from introducing relevant evidence
simply because the defense chooses not to contest the
point.").
In short, the district court properly admitted the evidence
of Watson's prior drug crime to prove Watson's intent with
respect to the cocaine at issue in this case. Moreover, as we
noted in Crowder, "[p]roof of an individual's intent to commit
an act may itself serve as proof that the individual committed
the act," and hence "other-offense evidence of intent would
have probative value not just on the intent element, but also
on the possession element of the offense." 141 F.3d at 1208.
When this is taken together with the other evidence connect-
ing Watson to the bag of crack cocaine, the government's
evidence is sufficiently weighty to bar a conclusion that
Watson was substantially prejudiced by the limited (and
mitigated) error the prosecutor committed in closing argu-
ment.
D
It may well be that in the not-too-distant future even
routine criminal trials will have the benefit of real-time
transcripts of witness testimony. See Toni Locy, Law Meets
Technology in Courtroom No. 9, Wash. Post, Aug. 21, 1997, at
J1. When that day comes, disputes over testimony will be
resolved by reference to transcripts rather than memories.
In the meantime, however, it is inevitable that trial lawyers
will suffer from innocent misrecollections. We have always
relied on the self-corrective nature of the adversary system,
combined with instructions from the court, to police all but
the most egregious of these kinds of errors. Because I am
unable to conclude that the defendant suffered substantial
prejudice as a consequence of the error that occurred in this
case, I respectfully dissent from the reversal of his conviction.