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


UNITED STATES

v.

JOHNSON, SPENCER L.


98-3111a

D.C. Cir. 2000


*	*	*


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 


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


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.


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


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


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


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


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


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


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


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


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


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


IV. Conclusion


For the reasons given above, we affirm the judgment, but  remand the
case for resentencing.