United States v. Richardson, John

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 28, 1998 Decided October 27, 1998

No. 97-3152

United States of America,

Appellee

v.

John M. Richardson,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00019-01)

Douglas Wham, appointed by the Court, argued the cause
and filed the briefs for appellant.

Michael Fitzpatrick, Assistant United States Attorney, ar-
gued the cause for appellee. With him on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher,
Elizabeth Trosman, Diana Harris Epps and Brenda B.
White, Assistant United States Attorneys.

Before: Edwards, Chief Judge, Wald and Sentelle,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: A jury convicted John M. Richardson
of the unlawful possession of a firearm by a convicted felon,
the unlawful possession of ammunition by a convicted felon,
and of threatening to injure another person. On appeal,
appellant challenges his convictions and sentence on a num-
ber of grounds, including (1) insufficient evidence for the jury
to convict him of constructive possession of a loaded firearm;
(2) improper joinder of the local District of Columbia threats
charge with the federal firearm and ammunition counts; (3)
an improper appeal to the racial sensitivities of the jury in the
government's closing argument; and (4) error by the district
court in designating a prior conviction of appellant as a crime
of violence for purposes of determining the guidelines base
offense level.1

Although this is a close case, we find that there was
sufficient evidence for the jury to convict appellant of con-
structive possession of a loaded firearm. However, we agree
with appellant that the district court erred in failing to
dismiss the local threats charge for lack of jurisdiction and
that certain remarks made by the prosecutor constituted
improper appeals to the racial sensitivities of the jury. Given
the closeness of the case, we find these errors to be substan-
tial and prejudicial, necessitating the reversal of appellant's
convictions on both the weapons and the threats counts.2
Finally, although our reversal of the convictions renders the
sentencing issue moot, we think it prudent to register our
observation that designating a prior conviction of appellant as
a crime of violence for purposes of determining the guidelines
base offense level was mistaken because the court did not

__________
1 Appellant also argued that the firearm and ammunition counts
were multiplicitous and hence that one of the two must be vacated
on double jeopardy grounds. The government concedes on appeal
that appellant's two convictions should be merged and one vacated.

2 We dismiss the threats count on jurisdictional grounds.

have before it the necessary information to determine wheth-
er that conviction constituted a crime of violence as defined
by the guidelines.

I. Background

On January 16, 1997, the government charged appellant in
a three-count indictment with (1) unlawful possession of a
firearm by a convicted felon, (2) unlawful possession of ammu-
nition by a convicted felon, both in violation of 18 U.S.C.
s 922(g)(1), and (3) threats to injure another person, in
violation of D.C. Code s 22-2307. All three offenses alleged-
ly occurred on the night of December 18, 1996. The firearm
and ammunition possession counts both arose from appel-
lant's alleged possession of a loaded gun, specifically de-
scribed in the indictment as a Glock 9mm semi-automatic
pistol. The threats charge, a District of Columbia offense for
which the maximum punishment is twenty years, was based
on remarks appellant made to a police officer after he had
been arrested for possession of a loaded gun and transported
to the police station.3 Appellant filed several pretrial mo-
tions, including a motion for dismissal of the local threats
charge, arguing that the district court lacked jurisdiction over
the charge because it had been improperly joined with the
weapons counts under Federal Rule of Criminal Procedure
8(a). The district court heard oral argument on the joinder
issue on two different occasions but ultimately rejected appel-
lant's motion.

A jury trial began on April 8, 1997. At the end of the
government's case, appellant moved for a judgment of acquit-
tal as to all three counts. The district court denied this
motion. After the defense presented its evidence, appellant
renewed his motion for a judgment of acquittal. The court
took this motion under advisement. Later that same day, the

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3 D.C. Code s 22-2307 provides that "[w]hoever threatens within
the District of Columbia to kidnap any person or to injure the
person of another or physically damage the property of any person
or of another person, in whole or in part, shall be fined not more
than $5,000 or imprisoned not more than 20 years, or both."

jury returned verdicts of guilty as to all three counts. With
respect to the firearm and ammunition counts, the jury found
appellant guilty on a theory of constructive possession rather
than actual possession. Appellant filed a written post-trial
motion for judgment of acquittal, which the district court also
denied.

A sentencing hearing was held on November 17, 1997. The
Presentence Investigation Report ("PSR") calculated appel-
lant's offense level at 20 based on a determination that
appellant had been convicted of a prior crime of violence, a
1982 Virginia conviction for statutory burglary.4 The sen-
tencing guidelines define a "crime of violence" as, inter alia,
the "burglary of a dwelling." U.S.S.G. s 4B1.2(a)(2). How-
ever, the Virginia statute to which appellant apparently pled
guilty covers burglaries of non-dwelling structures as well.
Appellant thus argued at sentencing that the court could not
increase his offense level for having been convicted of a prior
crime of violence without having before it a charging docu-
ment, plea agreement or the like which would reliably indi-
cate that appellant had in fact pled guilty to the burglary of a
dwelling and not of some other structure. The government
argued that the court could rely on a description of the crime
listed in the PSR provided by the United States Probation
Office for the Western District of Virginia which indicated
that the burglary was of a dwelling, noting the names of its
owners and what was stolen from it. After hearing substan-
tial argument on the issue, the district court ruled that the
1982 Virginia conviction did qualify as a "crime of violence"
both because it was a burglary of a dwelling and because it
involved conduct that presented a serious potential risk of
physical injury to another.5

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4 U.S.S.G. s 2K2.1(a)(4)(A) provides that in cases involving the
unlawful possession of firearms or ammunition, the base offense
level to be applied is 20 if the defendant had a prior felony
conviction of a crime of violence.

5 U.S.S.G. s 4B1.2(a)(2) defines a crime of violence as,

any offense under federal or state law, punishable by imprison-
ment for a term exceeding one year, that--

The district court accordingly determined that appellant
was properly assigned an offense level of 20 which, coupled
with a criminal history category of V, produced a sentencing
range for the gun and ammunition counts of 63-78 months.
The court sentenced appellant to a term of 78 months of
imprisonment for each of these counts, to run concurrently,
and imposed a consecutive sentence of 4-12 years for count
three, the D.C. threats charge.

II. Discussion

A.Sufficiency of Evidence

Appellant first argues that the evidence was insufficient to
support his convictions on the weapons counts. In assessing
this claim, we must view the evidence in the light most
favorable to the government, drawing all reasonable infer-
ences in the government's favor. See, e.g., United States v.
Dingle, 114 F.3d 307, 310 (D.C. Cir. 1997). Moreover, our
inquiry is "limited to the question of whether 'any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.' " Id. (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Appellant was convicted
of constructive possession of a loaded firearm. Constructive
possession requires "evidence supporting the conclusion that
the defendant had the ability to exercise knowing 'dominion
and control' over the items in question." United States v.
Morris, 977 F.2d 617, 619 (D.C. Cir. 1992) (quoting United
States v. Hernandez, 780 F.2d 113, 116 (D.C. Cir. 1986)).
Generally, neither "mere proximity" to nor "mere knowledge
of the presence" of contraband alone is enough to prove
constructive possession, see Morris, 977 F.2d at 619-20; Her-
nandez, 780 F.2d at 116; however, "proximity coupled with
'evidence of some other factor--including connection with a
gun, proof of motive, a gesture implying control, evasive
conduct, or a statement indicating involvement in an enter-

__________
...

(2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.

prise' is enough to sustain a guilty verdict." Morris, 977 F.2d
at 620 (quoting United States v. Gibbs, 904 F.2d 52, 56 (D.C.
Cir. 1990)).

The government's evidence against appellant on construc-
tive possession of a loaded gun consisted primarily of the
testimony of Lamar Hazelton. Hazelton testified that on
December 18, 1996, at 10:00 p.m., he was standing with some
friends in front of a carry-out in D.C. when he was ap-
proached by a man who asked in a threatening tone if
Hazelton had seen "Roger," a friend of Hazelton. Hazelton
replied that he had not. The man then circled Hazelton and
his friends several times before walking away. About five to
ten minutes later, the man again approached Hazelton and
demanded to know Roger's whereabouts. When Hazelton
replied that he had no idea where Roger was, the man
became agitated and told Hazelton to tell Roger that he was
going to "burn" him. The man then opened his coat to show
Hazelton the handle of a gun protruding from an inside
pocket. After this second encounter, Hazelton left the area.
As he was leaving, Hazelton observed the man approach the
driver's side of a car, lean into the front driver's side window,
and appear to talk to the driver.

Hazelton returned to the same area about five minutes
later where he encountered Metropolitan Police Officer El-
drick Creamer, who was patrolling the area. Hazelton told
Creamer about his two encounters with the man and provided
Creamer with a description of the suspect--black man, wear-
ing black clothes, with a bald head.6 Upon receiving this
information, Creamer moved through an alley to another
street, where he observed a man talking on a cellular phone
who fit the description given to him by Hazelton. That man

__________
6 There was some confusing testimony at trial about whether the
description given by Hazelton indicated that the suspect was wear-
ing a hat. Creamer testified at trial that Hazelton had stated that
the suspect had some sort of headpiece on. When subsequently
questioned as to this at trial, however, Hazelton indicated that he
could not have said the suspect had a hat on because he had noted
that the suspect was bald. See 4/10/97 Transcript ("Tr.") at 449.

was appellant. Creamer detained appellant with the help of
fellow officer, Paul Regan. During appellant's detention,
Hazelton, who had followed Creamer onto the second street,
walked past appellant and gave Creamer an affirmative nod
to indicate that he had the right man. Appellant was
searched but no gun was found on him.

When Creamer apprehended him, appellant was standing
about 10-15 feet away from a car which Hazelton identified as
the one he had seen the suspect leaning into earlier that
night. This car was occupied by three men, one in the
driver's seat and two in back; the front passenger seat was
empty. All three men were black, all three were wearing
black clothes, and all three were roughly the same height,
weight and complexion as appellant.7 A search of the vehicle
and its occupants uncovered two guns, one on the person of
the driver and the other--a loaded black 9mm Glock semi-
automatic pistol--on the floor under the front passenger seat.
Appellant and the car's occupants were all arrested and taken
to the police station.

At trial, Hazelton identified appellant in court as the man
who had twice asked him about Roger and who had shown
him the handle of a gun protruding from his coat pocket. No
usable prints were lifted from the Glock, but Hazelton testi-
fied that its handle was similar in appearance to the handle of
the gun he had seen on the man looking for Roger. Hazelton
admitted, however, that he could not state with absolute
certainty that it was the same pistol he had seen the evening
of the incident.8 Hazelton also identified at trial a picture of

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7 Officer Creamer testified that all three of the men in the car
were dressed in black. See 4/9/07 Tr. at 292. Officer Eric Skinner
of the Identification and Records Division of the Metropolitan Police
Department testified about the physical characteristics of the three
men and appellant. All four men were designated as being medium
complected and their heights and weights were 5'6", 120; 5'10", 205;
5'10", 200; 5'11", 205 (appellant). See 4/10/97 Tr. at 536-37.

8 In fact, on redirect, Hazelton's identification of the gun he had
seen on the suspect faltered somewhat: "It's black. The handle,

the car from which the Glock was recovered as the same kind
of car he had seen the suspect leaning over that night, but
admitted that he was not sure if it was in fact the same car.9

Viewing Hazelton's testimony in the light most favorable to
the government and giving the government the benefit of all
reasonable inferences therefrom, we conclude that a reason-
able trier of fact could find the requisite connection between
appellant and the gun required for a conviction based on
constructive possession. Hazelton's testimony offered evi-
dence that appellant had at one time possessed a gun like the
Glock, that he had a motive to possess a gun (i.e., to "burn"
Roger), and that he had been observed leaning over the car in
which the Glock was found. The jury was free to credit this
testimony and could reasonably infer from it that appellant
had constructively possessed a gun.

Again, we emphasize that this was not a strong case of
constructive possession; however, our role in assessing the
sufficiency of the evidence "is sharply circumscribed." Unit-
ed States v. Poston, 902 F.2d 90, 94 (D.C. Cir. 1990). "We are
not a second jury weighing the evidence anew and deciding
whether or not we would vote to convict the defendant." Id.
Accordingly, we find that the evidence was legally sufficient
to establish that appellant constructively possessed the fire-
arm in question.

B.Joinder of Local Threats Charge with Federal Weapons
Charges

Appellant argues that the joinder of the threats charge
with the firearm and ammunition counts was improper under
Fed. R. Crim. P. 8(a), and, accordingly, that the district court
lacked jurisdiction over the threats charge.10

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the handle. (Pause). The handle.... I can't remember exactly
how it looked." 4/10/97 Tr. at 419-20.

9 Hazelton recalled that the car was gray but admitted that he
might have been mistaken about the color (the car was in fact blue).

10 The threats charge arose from comments appellant made to
Officer Creamer after having been arrested on the weapons charge.
Creamer testified that appellant was on the phone when he began

The district court possesses jurisdiction over a D.C. Code
offense "only if the 'offense is joined in the same information
or indictment with [a] Federal offense.' " United States v.
Koritko, 870 F.2d 738, 739 (D.C. Cir. 1989) (quoting 11 D.C.
Code Ann. s 502(3) (1981)). Joined means "properly joined
in accordance with Rule 8(a), Fed. R. Crim. P." Id. See also
United States v. Jackson, 562 F.2d 789, 793 (D.C. Cir. 1977).
To be properly joined under Rule 8(a), offenses must be "of
the same or similar character or based on the same act or
transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan."

Admittedly, Rule 8 has generally been construed liberally
in favor of joinder. See United States v. Gibbs, 904 F.2d 52,
56 (D.C. Cir. 1990) ("[J]oint trials may be preferred, given the
heavy and increasing criminal case load in our trial courts.").
However, joinder under Rule 8 is not infinitely malleable: it
cannot be stretched to cover offenses, like those here, which
are discrete and dissimilar and which do not constitute parts
of a common scheme or plan. Moreover, joinder in this case
has jurisdictional implications: in contrast to joinder cases
involving two or more federal offenses, where a court need
only determine whether to conduct one or several trials, in
this case the court lacked jurisdiction altogether over the
threats charge if it was not properly joined with the federal
offenses. See Jackson, 562 F.2d at 797. And, as the Jackson
court noted, because Congress has determined that D.C.
crimes should generally be tried in the D.C. courts,11 "the
joinder provisions of Rule 8 should not be strained to uphold
federal jurisdiction over local crimes." Id.

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to speak very loudly, using profanity and making derogatory com-
ments to Creamer. When Creamer informed appellant that his
phone time was up, appellant replied: "Bitch-ass nigger, I'm going
to get you when I get out." 4/9/97 Tr. at 271.

11 The Jackson court noted that a major purpose of the District of
Columbia Court Reform and Criminal Procedure Act of 1970 was
"to shift general jurisdiction over D.C. Code offenses from the
United States District Court to the Superior Court of the District of
Columbia." 562 F.2d at 793.

We believe that Rule 8 was strained beyond tolerable limits
to provide jurisdiction over the local threats charge. In order
for offenses discrete and dissimilar on their faces to be
properly joined under Rule 8, there must be some logical
relationship between them. See United States v. Perry, 731
F.2d 985, 990 (D.C. Cir. 1984). The government argues that
these offenses are logically connected in a "but for" sequential
relationship: but for the arrest of appellant on the weapons
charges, he would not have been motivated to threaten Offi-
cer Creamer. We disagree. Offenses do not become logical-
ly related solely by way of an intervening arrest; that is, the
fact that an intervening arrest brings preceding and succeed-
ing offenses together temporally or precipitatively simply
does not suffice to create the logical relationship contemplat-
ed by Rule 8 which requires that they be "connected together
or constitut[e] parts of a common scheme or plan."

Also militating against joinder in this case is the fact that
there was no overlap of issues or evidence between the
weapons and threats offenses, thus one of the primary pur-
poses behind Rule 8 joinder, judicial economy, never came
into play: "In determining whether offenses are based on
'acts or transactions connected together,' the predominant
consideration is whether joinder would serve the goals of trial
economy and convenience; the primary purpose of this kind
of joinder is to insure that a given transaction need only be
proved once." Baker v. United States, 401 F.2d 958, 971
(D.C. Cir. 1968). Where there is substantial overlap in
evidence between two offenses, joinder "eliminate[s] the need
to prove substantially the same evidence twice over, thus
realizing precisely the kind of economy envisaged by Rule
8(a)." Blunt v. United States, 404 F.2d 1283, 1288 (D.C. Cir.
1968). Where there is no substantial overlap in evidence and
particularly where the evidence necessary to prove each of
the offenses would be inadmissible in a trial of the other,
judicial economy does not favor joinder. Cf. United States v.
Leonard, 445 F.2d 234, 236 (D.C. Cir. 1971) ("The critical
element of the case ... is the simple fact that [evidence
surrounding the joined offense] would have been admissible
in evidence in a [separate] trial.... In this situation the

joinder of offenses promotes the kind of efficiency of adminis-
tration of criminal justice that is the objective of Rule 8.").
In the instant case, there was no evidence necessary to prove
the threats offense which was also necessary--or even admis-
sible, see discussion below--to prove the weapons offenses.
Judicial economy did not favor joinder in this case.

In sum, we find that the D.C. Code threats charge was not
properly joined with the federal weapons charges under Rule
8(a) and that the district court therefore erred in failing to
dismiss it as requested by appellant in pretrial motion. Ac-
cordingly, we reverse the threats conviction and dismiss the
charge for lack of jurisdiction.

C.Effect of Misjoinder on Weapons Charges

We dismiss the threats charge for lack of jurisdiction;
however, we must also determine the extent to which appel-
lant was prejudiced with respect to his weapons convictions as
a consequence of the misjoinder. The Supreme Court has
held that an error involving misjoinder requires reversal if
"the misjoinder results in actual prejudice because it 'had
substantial and injurious effect or influence in determining
the jury's verdict.' " United States v. Lane, 474 U.S. 438, 449
(1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). In Lane, the Supreme Court determined that the
misjoinder was harmless because, among other things, the
evidence of the defendants' guilt there was otherwise "over-
whelming" and, further, because the evidence surrounding
the misjoined count would likely have been admissible on
retrial of the other properly joined counts. Lane, 474 U.S. at
450.

In contrast, the evidence against this appellant on the
weapons charges was, as already noted, relatively thin.
Moreover, evidence of the post-arrest threats charges would
almost certainly not have been admissible had the weapons
charges been tried separately.12 As a result of the misjoin-

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12 The evidence would not be relevant to a material issue other
than character, see Fed. R. Evid. 404(b), and would, in any event, be
prejudicial under Fed. R. Evid. 403.

der, the jury heard irrelevant and clearly prejudicial evidence
in connection with the threats charge at the time it was
determining appellant's guilt on the weapons charges. As a
general matter, there was the obvious danger that a jury
might have been influenced against appellant simply because
he was the "type" of person who would threaten a police
officer. But more specifically in this case, the jury had to
determine whether to credit Hazelton's testimony that appel-
lant was the same man who had threatened to "burn" Hazel-
ton's friend Roger. Clearly, the jury would have been more
likely to credit this testimony if it heard evidence that appel-
lant had threatened someone else later that night.

We are not prepared to say that, in an otherwise uneventful
trial, misjoinder standing alone would require reversal of
appellant's weapons convictions. Again, however, given the
meagerness of the evidence along with the clearly improper
remarks made by the prosecutor in closing argument, see
discussion below, we simply cannot say that the misjoinder
here was harmless, that is, that it did not have a " 'substantial
and injurious effect or influence in determining the jury's
verdict.' " Id. at 449 (quoting Kotteakos, 328 U.S. at 776).

D.Prosecutor's Improper Remarks

Appellant argues that the prosecutor's closing argument
was improper and prejudicial because it interposed the issue
of race into the case with the intent of disparaging defense
counsel and of fostering an identification of the prosecutor
with the jury at the expense of defense counsel. The com-
ments of which appellant complains arose from the prosecu-
tor's apparent effort to rebut appellant's misidentification
defense. At trial, appellant constructed a defense of misiden-
tification based on the fact that all three men apprehended in
the car in which the Glock was found basically fit the general
description given by Hazelton to Creamer and that, in fact,
one of these men, Kelvin Spinner, was approximately the
same height and weight as appellant, was bald, had some sort
of hat with him when arrested, and was seated directly
behind the passenger seat under which the Glock was found.

In an apparent attempt to rebut this misidentification
defense, the prosecutor made the following argument in refer-
ence to photographs of appellant and the three other men
arrested that night:

Now you are going to have government's exhibits nos.
21-A, 21-B, 21-C, and 21-D. Now, if you think every-
body looks alike, then maybe 21-A and -B, you can think
that [Hazelton] made a mistake, ladies and gentlemen.
But don't fall prey to, we all look alike, because [Hazel-
ton] knew the difference.

4/11/97 Tr. at 629. On rebuttal, the prosecutor returned to
this argument: "Again, we don't all look alike, ladies and
gentlemen." 4/11/97 Tr. at 669.

Appellant argues that the obvious suggestion underlying
the prosecutor's remarks was that defense counsel's misiden-
tification theory was itself based on a racial stereotype of the
"they all look alike" variety.13 The government argues that
the more natural interpretation of her remark is that people
in general do not all look alike, a neutral and inoffensive
observation. It is true, as this court has noted, that courts
" 'should not lightly infer that a prosecutor intends an ambig-
uous remark to have its most damaging meaning' " or that a
jury " 'will draw that meaning from the plethora of less
damaging interpretations.' " United States v. Monaghan, 741
F.2d 1434, 1441 (D.C. Cir. 1984) (quoting Donelly v. DeChris-
toforo, 416 U.S. 637, 646-47 (1974)). However, the prosecutor
did repeat her "we don't all look alike" argument and there
can be no gainsaying that the remark is instantly recogniz-
able as a reference to racial stereotyping. Regrettably, we
find under the circumstances that the risk was altogether too
real that a juror would take from this reference the distinct
impression that the prosecutor herself believed defense coun-

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13 Since the prosecutor, the defendant, Hazelton, and the other
car occupants (but not defense counsel) were all African-American,
appellant argues that the "they all look alike" stereotype converted
into "we [don't] all look alike" in the prosecutor's closing argument.

sel to be flirting with racial stereotyping in constructing his
misidentification defense.14

Moreover, these references arose in the context of what
must reasonably be read as a marked attempt by the prosecu-
tor to portray defense counsel as an interloper in a world to
which the other trial participants--the prosecutor, the defen-
dant, Hazelton and the jurors--belonged. Defense counsel
attempted in closing argument to challenge Hazelton's credi-
bility by noting, among other things, that Hazelton was
barely 17 at the time the incident occurred.15 In her rebuttal
argument, the prosecutor argued the following:

In Mr. Boss's [defense counsel's] world, 17-year-old boys
don't have to have those responsibilities. In Mr. Boss's
world, people don't come of age if they can drink alcohol,
people who don't come of age become responsible until
they can vote. In the District of Columbia, people come
of age when they have to come of age, ladies and
gentlemen.
* * *

Mr. Boss's world is a wonderful world, but in Lamar
Hazelton's world, he had to know whether a gun was
cocked or not. He's had unfortunate incidents, and the

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14 The possibility that the jury would have so understood the
prosecutor's remarks is particularly troublesome here because mis-
identification was appellant's only defense. Insofar as the prosecu-
tor raised the spectre that this defense was based on racist assump-
tions, appellant was clearly prejudiced.

15 Defense counsel's precise words were the following:

So it comes down to Lamar Hazelton. Lamar Hazelton just
turned 17 at the time this occurred. He's one month past 16.
He's not old enough to vote. He's four years away from
society deeming him responsible enough to be able to drink a
beer. This is the man upon whom Mr. Richardson's fate relies,
because he is the only man that identifies Mr. Richardson as
the person who came up to him.

4/11/97 Tr. at 648.

one thing Mr. Boss's world doesn't obviously understand
today is that when an unknown black male who's bald
and comes up looking for one of your boys, Roger, and
comes back and threatens with a gun and burning some-
one, that you're going to remember his face.

* * *

In Mr. Boss's world, a 17-year-old isn't supposed to be
responsible for your friend. That's in Mr. Boss's world.

* * *

Now, the final thing in Mr. Boss's world, ladies and
gentlemen, is that a 17-year-old man growing up in the
red zone, who has decided to do the right thing by going
to a military-type boot camp to ensure that he gets a
high school diploma and to study for the S.A.T., you don't
study for the S.A.T to go back on the corner, ladies and
gentlemen. You study for the S.A.T to go to college, and
if you don't think that someone with that mature caliber
of an individual is able to come in here and to present
testimony in a serious situation as today, then you, too,
perhaps live in a Mr. Boss's world, because that gentle-
man is our future and he's doing the right thing.

4/11/97 Tr. at 665-68.

While a prosecutor " 'may strike hard blows, [she] is not at
liberty to strike foul ones.' " United States v. Young, 470
U.S. 1, 7 (1985) (quoting Berger v. United States, 295 U.S. 78,
88 (1935)). Reluctantly, we conclude that the prosecutor's
"we don't all look alike" remarks, surely susceptible of if not
compelling the interpretation that defense counsel based his
misidentification defense on a racial stereotype, as well as her
suggestion that defense counsel was out of touch with the
realities and concerns of Hazelton's world and, by implication,
of the jury's as well, tack too close to the wind and, in a close
case like this, could well have inflamed the emotions of the

jury and resulted in a verdict based on something other than
the evidence.16

Appellant concedes that he failed to object to these re-
marks and therefore that the "plain error" standard of review
applies. See United States v. Perholtz, 842 F.2d 343, 361
(D.C. Cir. 1988). In order to reverse a conviction under plain
error review, we must find that "an improper prosecutorial
remark ... cause[d] substantial prejudice to the defendant."
Monaghan, 741 F.2d at 1443. One of the factors determining
whether an improper remark made by the prosecutor sub-
stantially prejudiced a defendant's trial is "the certainty of
conviction absent the improper remarks." Id. Again, as we
have noted, the evidence against appellant on the weapons
counts was not such that his conviction was by any means a
certainty. We therefore conclude that the improper remarks,
in particular when coupled with the prejudice flowing from
the misjoinder, did cause substantial prejudice to appellant.
We find that under these circumstances the remarks amount
to plain error and, accordingly, mandate reversal of appel-
lant's weapons convictions.

E.Sentence Enhancement

Although reversal of appellant's convictions means that we
need not reach this issue, we think it useful for future
reference to note that the district court did not have before it
the necessary information to determine whether appellant's
prior state conviction of burglary was properly designated as

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16 That the prosecutor attempted to foster an identification with
the jury at the expense of defense counsel is also evidenced by a
remark the prosecutor made in her opening statement: "I'm a
prosecutor, and to say that I represent the United States, I'm here
in the District of Columbia and what I do and who my client is are
[sic] the individuals who live in the District of Columbia, along with
yourselves. So, as Mr. Boss's client is Mr. Richardson, my clients
are the 14 people, yourselves, as well as your other residents...."
4/9/97 Tr. at 231-32. The government concedes that the foregoing
comment was ill-advised and was not condoned by the United States
Attorney's Office.

a crime of violence for purposes of calculating appellant's base
offense level.

The sentencing guidelines applicable to a violation of 18
U.S.C. s 922(g)(1) provide for a base offense level of 20 where
the offender has one prior felony conviction for a crime of
violence. See U.S.S.G. s 2K2.1(a)(4)(A). The guidelines de-
fine a crime of violence as, inter alia, a "burglary of a
dwelling." U.S.S.G. s 4B1.2(a)(2). Appellant's PSR indicat-
ed that appellant had been convicted of a prior crime of
violence--namely a 1982 Virginia burglary conviction. How-
ever, the Virginia statute to which appellant apparently pled
guilty covers burglaries of dwellings and non-dwelling struc-
tures alike.17 Accordingly, appellant argued at sentencing
that the court could not find that he had been convicted of a
prior crime of violence with respect to this burglary because
the government had failed to produce a charging document,
plea agreement, or the like which would reliably indicate the
precise crime to which appellant pled guilty. The govern-
ment argued at sentencing that it did not need to produce any
such document because there was a sufficient basis in the
record before the court to conclude that appellant had in fact
pled guilty to burglary of a dwelling--namely, a description of
the burglary which was contained in the PSR prepared for
the current charges. This description had been provided by
the United States Probation Office for the Western District of
Virginia and indicated that the burglary to which appellant
pled guilty was of a residential dwelling.

The government was unable to identify the original source
of this description, that is, where the Probation Office for the

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17 On appeal, the government indicated that it was prepared on
remand to proffer a certified copy of the signed judgment for
appellant's 1982 conviction which it claims establishes that appellant
actually pled guilty to burglary under a section of the Virginia Code
which is limited on its face to the burglary of a dwelling (meaning
that the PSR was incorrect with respect to the section of the
Virginia Code to which appellant pled guilty). We discuss the
sentence enhancement issue in terms of what the sentencing court
had before it at the time, not in terms of what the government has
proffered on appeal.

Western District of Virginia obtained the information it
passed along to the Probation Office for the District of
Columbia. Accordingly, as appellant correctly points out,
there was simply no way of knowing at sentencing whether
this description was obtained from a legitimate and reliable
source, such as a charging document, a plea agreement, or a
previous presentence investigation report adopted by the
state court in the burglary case, or whether this description
came from an untested source, such as an arrest warrant, a
police report, or a prosecutor's proffer.

"[I]t is the responsibility of the government to produce
such documents as are necessary to establish that a prior
offense can be properly designated a 'crime of violence.' "
United States v. Hill, 131 F.3d 1056, 1065, n.10 (D.C. Cir.
1997). If the government fails to meet this responsibility, a
sentencing court may not turn to potentially unreliable
second-hand information in designating a prior offense as a
crime of violence.

For the reasons stated herein, we reverse the federal
weapons convictions and order dismissal of the threats count
for improper joinder.

So ordered.