UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WATSON, TALIB D.


97-3153a

D.C. Cir. 1999


*	*	*


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




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n 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


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




__________

n 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 


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).




__________

n 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


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


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


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.


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 




__________

n 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,




__________

n 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. 


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


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


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


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


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 




__________

n 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


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 




__________

n 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-




__________

n 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


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




__________

n 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




__________

n 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 




__________

n 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 




__________

n 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. 


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.