United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000 Decided November 14, 2000
No. 98-3111
United States of America,
Appellee
v.
Spencer L. Johnson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00062-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Valinda Jones, Assistant United States Attorney, argued
the cause for appellee. With her on the brief were Wilma A.
Lewis, United States Attorney, John R. Fisher and Darrell C.
Valdez, Assistant United States Attorneys.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: A jury convicted Spencer L. John-
son of possession with intent to distribute over 50 grams of
cocaine base, in violation of 21 U.S.C. s 841(a)(1) &
(b)(1)(A)(iii) (1994), and simple possession of marijuana, in
violation of 21 U.S.C. s 844(a) (1994). Judge Harold H.
Greene sentenced Johnson to 121 months in prison and five
years of supervised release on count one, and concurrent
terms of 12 months in prison and one year of supervised
release on count two.
Johnson appeals and requests a new trial. He asserts that
the prosecutor substantially prejudiced the verdict by arguing
to the jurors that their function included protecting the
community from drugs. Defense counsel raised a timely
objection to the prosecutor's comments at trial. Johnson is
correct that the prosecutor's comments were error. Howev-
er, the error was harmless. The improper comments did not
substantially or injuriously affect the determination of the
jury's verdict. As a result, we affirm the judgment.
In the alternative, Johnson argues that this court should
remand the case for resentencing. Johnson has not been
provided with a transcript of his sentencing proceedings in
violation of the Court Reporter Act, 28 U.S.C. s 753(b)
(1994). The Miller Reporting Company lost the stenomask
tape and any transcript that might have been prepared.
Johnson asserts that without resentencing there can be no
meaningful review. The Government argues that the likeli-
hood of a lower sentence is small, but concedes that it is not
out of the realm of possibility.
This case presents a highly unusual circumstance. Ordi-
narily, if a sentencing record is lost, the judge who sentenced
the defendant makes definitive findings as to the content of
the sentencing proceedings pursuant to Rule 10(c) of the
Federal Rules of Appellate Procedure. In this case, however,
the judge who sentenced Johnson became seriously ill before
the record could be reconstructed. The judge who succeeded
the original trial judge issued an order stating that the record
could not be reconstructed. Given what is known here about
the sentencing proceedings before the original trial judge, it
is possible that Johnson was entitled to a lesser sentence. In
light of these unusual circumstances, and to ensure that all
appropriate possibilities are considered, we remand the case
for resentencing.
I. Background
A. Trial
On February 24, 1998, a federal grand jury indicted John-
son for possession with intent to distribute over 50 grams of
cocaine base, in violation of 21 U.S.C. s 841(a)(1) &
(b)(1)(A)(iii), and simple possession of marijuana, in violation
of 21 U.S.C. s 844(a). Johnson's first trial ended in a mistrial
when certain jurors became unavailable entering the fourth
day of deliberations. During Johnson's second trial, the
Government presented the testimony of five police officers
involved in appellant's arrest: Investigator Tommy Miller,
Sergeant Curt Sloan, and Officers John Branch, Devinci
Wooden, and Andre Wright. The Government also presented
the testimony of a chemist and a police detective with exper-
tise in narcotics. The defense presented the testimony of
Johnson, and Johnson's friend, Larry Holmes, who witnessed
the arrest.
The officers testified to the following. On February 6,
1998, they were patrolling the neighborhood surrounding
Clifton Street, N.W., Washington D.C. Around 5:00 p.m.,
Officer Tommy Miller, sitting with his partner in a police car,
noticed a broken light on Johnson's car. They radioed the
other officers that they were going to make a traffic stop.
See Trial Transcript ("Tr.") 6/17/98 at 17. When they
reached Johnson, he had driven around the corner, parked his
car, and started walking towards an alley. See id. at 18-19.
Officer Branch pursued Johnson through the alley. Officer
Branch wore a black police raid jacket with "Police" written
on front. He wore a badge at his waistband and a gun on his
hip. Officer Branch did not identify himself, but believed
Johnson realized he was a police officer. See id. at 83-84. In
the alley, Sergeant Sloan saw Johnson use a hook-shot twice
to toss objects onto the roof. See Tr. 6/18/98 at 57. Officers
Wooden and Wright saw Johnson throw two objects onto the
roof. See id. at 95-96; Tr. 6/19/98 at 12. Officer Branch saw
one of Johnson's throws. See Tr. 6/17/98 at 49-50. After the
police reached Johnson, Officer Miller heard Johnson say he
ran because he did not have his driver's license. See id. at
27. Officer Branch recovered two plastic bags from the roof
containing 64 grams of cocaine. See id. at 51. A police
detective with expertise in narcotics testified that this was
more than an individual would normally possess for personal
use. See Tr. 6/19/98 at 69. The officers also found a bag in
Johnson's coat containing 26.5 grams of marijuana. See Tr.
6/17/98 at 62-63; Tr. 6/19/98 at 47.
Johnson's story was quite different from the testimony of
the officers. He testified that on February 6, 1998, he parked
near his former home on Chapin Street. See Tr. 6/19/98 at
105, 108-09. As he walked away from his car, a man jumped
out of another car and chased him. Because his brother had
been killed recently in crossfire in a drive-by shooting in the
same area, Johnson feared for his life and ran instinctively.
See id. at 106. He did not know the man chasing him was a
police officer. See id. at 106-07. After he was stopped by
the police in the alley, an officer told him the police were
going to say he threw illegal drugs onto the roof. See id. at
118. Johnson testified that he could not have made a hook-
shot motion because of an injury to his right shoulder. See
id. at 104. He testified that he did not possess any drugs.
See id. at 112. Larry Holmes testified that he saw Johnson
run down an alley before being stopped by police. He did not
see Johnson throw anything. See id. at 86.
B. Prosecutor's Statement
In his rebuttal argument to the jury, the prosecutor stated:
[Y]ou heard in his closing defense counsel make a lot
about truth and justice and the Pledge of Allegiance.
Well, ladies and gentlemen, justice does not have one
eye; it's got two eyes. Justice protects not only the
person who is accused, but it also protects persons like
those individuals who--those 400-plus individuals that
the crack cocaine were intended for. That is another
person justice is intended to serve.
Tr. 6/22/98 at 48. Defense counsel requested curative in-
structions. Initially, Judge Greene did not remember the
statement. After being reminded of the comment by both
defense counsel and the prosecutor, Judge Greene denied the
request explaining:
I don't think that is improper. It is a little of pressure
on the jury, which is probably what Mr. Jones objected
to, but I don't think it is improper enough that I should
now tell the jury to forget about that. That is what you
want me to do, right? That is reserved for a future time,
for the third and fourth and fifth time.
Id. at 71. The jury subsequently returned guilty verdicts on
all charges.
C. Sentencing
Judge Greene sentenced Johnson to 121 months in prison
and five years of supervised release on count one, and concur-
rent terms of 12 months in prison and one year of supervised
release on count two. Unfortunately, the official court re-
porter, Miller Reporting Company, lost the stenomask tape of
the sentencing proceedings, so no transcript of the proceed-
ings could be prepared. Subsequently, Johnson, pursuant to
Rule 10(c) of the Federal Rules of Appellate Procedure,
served a statement of proceedings on the Government in
which Johnson, his trial attorney, and his mother, attempted
to reconstruct the sentencing proceedings. In response, the
Government elected not to contest or supplement Johnson's
statement.
Ordinarily the judge who presides at sentencing makes
definitive findings regarding the content of the sentencing
proceedings. Judge Greene, however, as a result of serious
illness, was not available. In his absence, Chief Judge Norma
Holloway Johnson entered an order finding that complete
reconstruction and settlement of the sentencing record was
not possible. See United States v. Johnson, Crim. No.
98-062, Order (D.D.C. Dec. 23, 1999) ("Order"), reprinted in
Appellant's Appendix ("Appellant's App.") at 40.
II. Analysis
A. Prosecutor's Statement
Johnson raised a timely objection to the prosecutor's rebut-
tal argument to the jury; therefore, we review the contested
remarks for harmless error. See United States v. Saro, 24
F.3d 283, 287 (D.C. Cir. 1994). In any invocation of the
harmless error standard, the Government carries the burden
of proof; and the measure of "harm" under the standard is
whether the error had substantial and injurious effect or
influence in determining the jury's verdict, not merely wheth-
er the record evidence is sufficient absent the error to
warrant a verdict of guilt. See United States v. Smart, 98
F.3d 1379, 1390 (D.C. Cir. 1996).
In assessing claims of prosecutorial misstatements, the
court is required to determine whether the disputed remarks
constituted error and whether they substantially prejudiced
the defendant's trial. See United States v. Childress, 58 F.3d
693, 715 (D.C. Cir. 1995). We typically consider several
factors in this analysis: the closeness of the case, the centrali-
ty of the issue affected by the error, and the steps taken to
mitigate the effects of the error. See Gaither v. United
States, 413 F.2d 1061, 1079 (D.C. Cir. 1969).
There is no doubt here that the prosecutor's rebuttal
argument to the jury was impermissible. A prosecutor may
not make comments designed to inflame the passions or
prejudices of the jury. See Childress, 58 F.3d at 715. And a
prosecutor may not ask jurors to find a defendant guilty as a
means of promoting community values, maintaining order, or
discouraging future crime. See United States v. Monaghan,
741 F.2d 1434, 1441 (D.C. Cir. 1984). On its face, the
prosecutor's argument in this case improperly suggested that
the jury should convict the defendant in order to protect
others from drugs.
The Government argues that the prosecutor's comments
were a moderate response to defense counsel's allegations
that the police employed Nazi tactics to frame the defendant.
See Appellee's Br. at 15-16. It is undoubtedly correct that, in
assessing the severity of impermissible arguments, a court
must consider whether prosecutorial comments were offered
in response to inflammatory statements by defense counsel.
See United States v. Burnett, 890 F.2d 1233, 1241-42 (1989).
In this case, defense counsel did indeed invoke Nazi practices
in discussing police tactics. See Tr. 6/22/98 at 42. However,
read in context, the prosecutor was not responding directly to
allegations of police misconduct. Rather, the prosecutor was
responding to defense counsel's legitimate statement that the
promise of liberty and justice for all in the Pledge of Alle-
giance applies to Johnson. See id. at 28.
The Government further argues that the prosecutor im-
plied that the police, not the jury, had a duty to protect the
community from drugs. See Appellee's Br. at 16. Despite
this claim, the prosecutor's comments give no explicit indica-
tion that their subject is the police. The plain meaning of the
prosecutor's comments is that the jury should give justice not
only to Johnson, but also to the individuals the drugs were
intended to reach. See id. at 48.
There is no claim here that precise measures were taken to
cure the prosecutor's misconduct. However, the absence of
curative instructions is not dispositive of the question of
prejudice. See Monaghan, 741 F.2d at 1443 n.43. Rather, an
appellate court generally defers to the District Court's judg-
ment as to "[w]hether the prosecutor has struck a foul blow
instead of just a hard one." United States v. Dean, 55 F.3d
640, 665 (D.C. Cir. 1995). We also consider the jurors'
common sense in assessing the effect of a prosecutor's state-
ment. See Monaghan, 741 F.2d at 1440. In the judgment of
Judge Greene, the prosecutor's comments would have merit-
ed judicial intervention had they been repeated a "third and
fourth and fifth time." Tr. 6/22/98 at 71. Although he did
not issue a curative instruction, Judge Greene urged the
jurors in his general instructions to convict based only on the
evidence and reminded the jury that the lawyers' arguments
were not evidence. See id. at 53-54.
The final thing that we must consider in assessing a claim
of prosecutorial misstatement is the likely impact of the
improper remarks on the verdict. See United States v.
Williams-Davis, 90 F.3d 490, 507 (D.C. Cir. 1996). Johnson
argues that his conviction was uncertain. He points out that
the first trial ended in a mistrial after three and one-half days
of jury deliberations. See Appellant's Br. at 16-17. Though
complete certainty is not to be had in this circumstance, we
do not think it plausible, in light of the formidable evidence
arrayed against Johnson, that the prosecutor's remarks are
what account for Johnson's relatively speedy conviction at the
second trial.
Johnson also argues that the Government's evidence was
infected with the aura of collusion. In support of this claim,
Johnson points out that two police officers, along with the
prosecutor, admitted they revisited the crime scene during
the trial. See Tr. 6/18/99 at 61, 71. Furthermore, Johnson
alleges that a photograph the officers used to illustrate their
testimony contained markings that enabled them to co-
ordinate their testimony. See 6/22/98 at 35. Finally, Johnson
argues that the odd consistency of the testimony among the
officers, such as repetition of the term "hook-shot" and refer-
ences to eye contact with Johnson, indicates collusion. See
Tr. 6/17/98 at 16, 84; Tr. 6/18/98 at 16-17, 92, 125; Tr. 6/19/98
at 9-10, 37; Tr. 6/22/98 at 37.
Despite Johnson's assertions, we find that the great weight
of the evidence strongly supports Johnson's conviction. Five
police officers testified that Johnson possessed drugs. Their
eyewitness accounts were corroborated by physical evidence.
The only challenge to their testimony came from the defen-
dant and the defendant's friend. Furthermore, at issue in
Johnson's collusion argument is the credibility of the Govern-
ment's witnesses versus the credibility of Johnson and his
witness. If the prosecutor improperly addressed the issue of
witness credibility, Johnson's argument might have more
force. Instead, the prosecutor urged the jury to convict
Johnson in order to protect the community from drugs.
Given the content of the prosecutor's misstatement, it was not
likely to have affected the outcome of the case. Regardless
of the prosecutor's statement, the evidence clearly supported
the jury's verdict. Having considered these factors, we hold
that, although the prosecutor's comments were impermissible,
the error was harmless. Accordingly, the jury's verdict must
stand.
B. Loss of Sentencing Record
The Court Reporter Act, 28 U.S.C. s 753(b), requires that
court reporters record verbatim all proceedings in criminal
cases held in open court. However, failure to record a
proceeding or make a whole transcript available does not per
se require reversal. See United States v. Carrazana, 70 F.3d
1339, 1342 (D.C. Cir. 1995). We evaluate the burdens and
benefits of remand on a case-by-case basis and consider "(1)
the goal of deterring violations of the Court Reporter Act; (2)
the ability (and reasonable efforts of the parties) to correct
for violations of the Act by reconstructing the record; and (3)
the likelihood that reversible error occurred." Id.
In this case, Miller Reporting Company defaulted on its
responsibilities by losing the transcript. There is no mitigat-
ing evidence that the transcript was lost as a result of
inadvertent mechanical error. See, e.g., United States v.
Winstead, 74 F.3d 1313, 1321 (D.C. Cir. 1996). Appellant
asserts that Miller Reporting Company has engaged in a
pattern of negligence. The Assistant Federal Public Defend-
er in this case attests that this is the fifth case she has
handled in six years in which the Miller Reporting Company
has lost a transcript. See Appellant's Br. at 21. The Govern-
ment admits that it has "been frustrated from time to time by
lapses in the performance of this reporting company." Ap-
pellee's Br. at 25 n.15. In light of this record, our interest in
deterring violations of the Court Reporter Act weighs heavily
in favor of remanding this case for resentencing.
An additional consideration here is the confluence of cir-
cumstances which prevented the parties from reconstructing
the record. Appellant made a good faith effort to reconstruct
the record pursuant to Rule 10(c) of the Federal Rules of
Appellate Procedure. However, due to the unavailability of
the transcript, the inability of the parties to recall everything
that occurred at sentencing, and the illness of the presiding
District Court Judge, Chief Judge Norma Holloway Johnson
determined that complete reconstruction of the sentencing
record was not possible. See Order, reprinted in Appellant's
App. at 40. As a result, there is no reconstructed record in
this case.
Finally, we must consider whether Johnson was prejudiced
by the violation of the Court Reporter Act. In particular, we
must consider
the ability of the defendant to allege specific prejudice
arising out of an event in the missing portions [of the
transcript]; the extent of the missing portions; the sig-
nificance of the missing portions in a typical trial (e.g.,
final jury instructions are presumptively more significant
than a bench conference); the likely significance of the
missing portions in the context of the specific trial in
question; and the use of new counsel on appeal.
Carrazana, 70 F.3d at 1343. In this context, since the
burden of resentencing is comparatively light, these factors
need not weigh as heavily in favor of remand as when a new
trial is at stake. See Saro, 24 F.3d at 288. We thus consider
the Carrazana factors in light of this lower burden.
First, appellant does not allege specific prejudice arising
out of an event in the sentencing proceedings. This is not
dispositive, however. We have found reversible error where
a crucial stage of trial was missing even though the defendant
could not allege specific prejudice. See United States v.
Workcuff, 422 F.2d 700, 702 (1970) (per curiam).
Second, in this case, the extent of the missing transcript of
the sentencing proceedings is significant, as the entire tran-
script was lost. In both Carrazana and Winstead, we con-
cluded that the context of the missing transcripts, such as the
absence of select bench conferences, suggested that the miss-
ing portions related mainly to housekeeping matters. In
other words, the subject matter of the missing transcripts in
those cases was not crucial; as a result, it was held that
reversible errors were unlikely. See Carrazana, 70 F.3d at
1344; Winstead, 74 F.3d at 1322. In contrast, in Workcuff,
the court reporter was absent from a crucial stage of the
trial--a jury instruction given after jury deliberations had
begun--and, as a result, the court could not determine that
no substantial right of the appellant had been violated. See
Workcuff, 422 F.2d at 702. Similarly, in this case, although
Johnson cannot point to prejudice arising out of a particular
event, the loss of the transcript of the entire sentencing
proceedings constitutes the absence of a crucial stage and
itself increases the likelihood of error. The Government does
not dispute the significance of this phase of the analysis.
Third, in evaluating the significance of the missing portions
of the transcript in the context of the specific trial in question,
the court considers whether the gaps are suggestive of proba-
ble error. See Carrazana, 70 F.3d at 1343. The Government
argues that the gap is not suggestive of probable error,
because we can determine that Judge Greene properly calcu-
lated Johnson's sentence based on the Presentence Investiga-
tion Report ("PSR"). The parties agree that the statutory
mandatory minimum for the crime was 120 months. See 21
U.S.C. s 841(b)(1)(A)(iii). The Presentence Investigation Re-
port recommended a base offense level of 32, which triggers
an imprisonment range of 121-151 months. See PSR at 4.
In addition, the Presentence Investigation Report recom-
mended a 2-level enhancement for obstruction of justice, for a
total of 34 points, which triggers an imprisonment range of
151-188 months. See PSR at 4-5. Judge Greene sentenced
Johnson to 121 months. By implication, the Government
asserts, Judge Greene rejected the obstruction of justice
recommendation, but accepted the remainder of the Presen-
tence Investigation Report. The Government further argues
that Johnson did not raise any grounds for downward depar-
ture in his objections to the Presentence Investigation Re-
port. See Appellee's Br. at 30-31. Nevertheless, the Govern-
ment concedes that if there were grounds for downward
departure, Judge Greene could have sentenced appellant to
120 months, the statutory mandatory minimum, rather than
121 months, the minimum guidelines recommendation. The
Government argues this one-month discrepancy is not an
appreciable difference. See id.
Johnson argues that, contrary to the Government's claims,
the Presentence Investigation Report does not demonstrate
that there was no error in the District Court's sentencing.
Johnson presents the following example. The Presentence
Investigation Report made it clear that Johnson met the first
four criteria for the 2-level safety valve adjustment in U.S.
Sentencing Guidelines Manual s 5C1.2 (1997), specifically, no
criminal history points, no violence or weapon possession in
the offense, no death or serious bodily injury, and no leader-
ship role. However, only the District Court Judge could
determine whether Johnson met the fifth criteria, i.e., truth-
fully providing all information and evidence about the offense.
See U.S.S.G. s 5C1.2.
If Judge Greene found that Johnson met the fifth criteria,
and he also rejected the enhancement for obstruction of
justice as the Government suggests, Judge Greene could have
sentenced Johnson to less than 120 months. See U.S.S.G.
s 2D1.1(b)(6). The Presentence Investigation Report pro-
vides no assessment of this, and without a sentencing tran-
script, there is no record of Judge Greene's analysis of this
provision. See Appellant's Reply Br. at 9. In addition,
according to the uncontested account that Johnson submitted
in his attempt to reconstruct the record, during sentencing
Judge Greene spoke about how harsh the sentencing guide-
lines were, and stated that if he could sentence Johnson below
the guidelines range, he would. See Appellant's Statement of
Proceedings Prepared Pursuant to Fed. R. App. P. 10(c),
reprinted in Appellant's App. 33-35. This further supports
the possibility that Judge Greene would have granted John-
son a lesser sentence, had the safety valve been brought to
his attention.
This court has not specifically ruled on whether a defen-
dant who testified at trial and was disbelieved by the jury,
but subsequently truthfully provided the Government with all
information and evidence, is eligible for the safety valve. See
United States v. Schreiber, 191 F.3d 103, 106 (2d Cir. 1999)
(holding that despite previous fabrications and obstruction
defendant was eligible for safety valve). Under the plain
language of U.S.S.G. s 5C1.2, a defendant has until "not
later than the time of the sentencing hearing" to truthfully
provide the Government with all information and evidence
concerning the offense. Johnson bore the burden of persuad-
ing the District Court that he was eligible for the safety
valve. See United States v. Mathis, 216 F.3d 18, 29 (D.C.
Cir. 2000), cert. denied, __ S. Ct. __, 2000 WL 1468603 (U.S.
Oct. 30, 2000) (No. 00-6297). We are not in a position to
weigh these factors and we cannot be certain what the trial
judge's assessment might have been in this case.
Finally, in this case original counsel was available in the
attempted reconstruction. As a result, the use of new counsel
is not a significant factor in the likelihood of reversible error.
See Carrazana, 70 F.3d at 1344-45.
As we discussed in Carrazana, we consider the foregoing
factors in assessing the likelihood that reversible error oc-
curred. We then weigh the likelihood that reversible error
occurred, along with deterrence and the ability and efforts of
the parties to reconstruct the record. See Carrazana, 70
F.3d at 1342-43. On balance, we find that this case presents
a circumstance which qualifies for remand and resentencing.
Johnson and the Government both acknowledge repeated loss
of transcripts by Miller Reporting Company. Despite John-
son's good faith effort to reconstruct the record, the District
Court found that no reconstruction was possible. Both par-
ties recognize that it is possible that Judge Greene could have
sentenced Johnson to a lesser sentence. In addition, the loss
of the entire transcript of the sentencing proceedings further
supports resentencing. Based on these concerns, justice
requires that the case be remanded for resentencing.
IV. Conclusion
For the reasons given above, we affirm the judgment, but
remand the case for resentencing.