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

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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-

__________

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

__________

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

__________

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

__________

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.