*2 Before: EDWARDS, Chief Judge, ROGERS and GARLAND, Circuit Judges. Opinion for the Court filed by Circuit Judge ROGERS.
Dissenting opinion filed by Circuit Judge GARLAND. Accordingly, judg- ROGERS, Judge: dence. we reverse the Circuit ment of conviction and remand the case for The critical issue at Talib Watson's sec- a new trial. charges ond trial on narcotics-related *3 whether Watson had a connection to a I.
large stash of cocaine base and heroin burgundy found inside a Subaru automo- p.m. September Between 5:30 and 6 Subaru, bile.1 Watson did not own the nor 27, 1995, police anonymous received an any fingerprint witness or telephone advising call that an unidentified place prove him in the vehicle. To his person wearing cap, a black baseball blue car, government connection to the jeans, jean jacket and a blue had been key police lied on a to the Subaru that the selling drugs day all near 18th and D arrested, found on Watsоn when he was a Streets, N.E, operating burgundy out of a jewelry bag containing nearly Shaw's temporary Maryland tags. Subaru with grams police of cocaine base that the p.m., plainclothes police Around 9 five offi- car, receipt and a from a Shaw's According cers arrived at the scene. police store that found in Watson's officers, three Watson handed a "dark ob- witnesses, however, placed home. Defense ject" Ford, dropped to Theodore who part evening Watson in church for object, gun, later determined to be a into a disputed police in testimony and a officer's police attempted trash can. When the key that Watson had the car Watson, arrest two officers testified that Instead, the time of his arrest. dropped ziplock bags ground he five to the witnesses connected Everett Hawkins to gram that contained about one of cocaine key day the Subaru and the car on the and base. A third officer testified that he re- evening question. strengthen To person key, pag- moved from Watson's a evidence of Watson's connection to the Su- er, currency. $57 and in United States baru, government attempted prove key opened burgundy Subaru. girl- the owner of the car was his Upon searching Subaru, police attempt fumbled, friend. The was howev- glove compartment er, found in the a Shaw's when the asked a defense jewelry bag nearly compound question assuming that contained witness a grams base, gram evidence, namely of cocaine about a half fact not otherwise in heroin, gray sponge, scale, registered as well as a owner of the car was Wat- empty ziрlock bags. According girlfriend, and to the son's ambiguity and then eliminated the police, police response by pur- when Watson saw that the in the witness' jewelry bag, attempted porting had found the he the witness' police grabbed him; during closing argument jury. to run. The Be- police credibility hotly disputed hit one of the officers with a flash- cause and light; connecting and then as other officers held Wat- the evidence Watson to the car ground yelled weighty, son to the to the crowd was not we conclude that help. erupted argu- Gun shots from the standard instructions that the secure, questions crowd. When the area was ments of counsel and counsel's police transported are not evidence were insufficient to miti- Watson and Ford for processing. Upon executing gate prejudice arising a search war- the substantial home, police prosecutor's rant of Watson's found an misstatement of the evi- (21 860(a)), aiding § school U.S.C. and and 1. Watson's first trial ended in a mistrial. At abetting (18 2); possession § trial, possess- U.S.C. with in- this second ing he was convicted of (21 tent to distribute heroin U.S.C. grams 50 or more of cocaine base with 841(a)(1)), aiding abetting (18 § (21 and intent to distribute U.S.C. 89(a)(1) SS 2); § (b)(1)(A)(iii)(l994)), aiding abetting U.S.C. and assault on a officer (D.C.Code 22-505(aX1981)). § (18 2); possession Ann. He was § U.S.C. with intent acquitted charges. of firearms distribute cocaine base within 1000 feet of a August 1995, receipt for a purchase first, at a the district court abused its discre- jewelry Shaw’s store. tion under Rule 403 in admitting his 1988 Watson’s defense conviction part drug alibi and trafficking part inasmuch as mistaken possession identification. The president the only contested issue and a minister of Healing God’s there was Temple ample other evidence to both testified that Wаtson show arrived at knowledge intent; second, the church for a recital between 6 7 p.m., district court plainly erred in allowing ex- around the time the police received the pert witness testimony in the form of mir- anonymous tip, and he did not leave until 8 roring hypotheticals suggesting personal p.m. Other defense witnesses testified knowledge of Watson’s intent to distribute; *4 that another man had been selling drugs third, the district court erred deny- out of the Subaru all day ran, discard- ing his motion in limine to restrict the ing items, various when the police arrived prosecutor from misstating evidence dur- in response to the anonymous tip. Leon- ing closing argument and the Butler, ard a bystander scene, at the testi- subsequent misstatement of the evidence fied that he saw Everett Hawkins standing during closing, argument substantially in the alley near the trash can where the prejudiced right his to a fair trial. Be- gun found, upon seeing the cause we conclude that Watson’s third police, Hawkins ran down the alley dis- ground requires reversal of his conviction, carding objects. Raymond Thomas testi- we limit our comments on his first two fied that he saw Hawkins in the area that grounds to matters that are likely to arise day wearing jeans outfit and a hat and upon retrial. that Hawkins left the area when the police arrived. Three other defense witnesses testified that the initiated the brawl A. with Watson, beating him with the b.utt gun, fists, their During and flashlights. closing argument to the prosecutor the misstated a defense Defense witnesses also disputed gov- the witness’ testimony on a ernment’s critical point evidence regarding the Subaru. and did so while Anthony purporting to Shank, quote another bystander, testi- the witness’ testimony. fied that he The saw an unfortunate officer remove Wat- sequеnce of son’s shoe events belt, laces and arose when but the not the Su- prosecutor baru key, from person. cross-examined his defense Raymond wit ness put Thomas Raymond Everett Thomas Hawkins in about the Suba- Tyra ru on the night Jackson, in question. the registered A sixteen- owner of year-old the high school Subaru where student the drugs testified that and contra the Subaru band belonged Hawkins, found, was Watson’s girl Hawkins was in the friend. car on In the day asking the question, howev (and er, on other occasions), the prosecutor presented the witness the key introduced into with a evidence by compound question assuming a government was the key key Hawkins fact used to in evidence&emdash;namely,was thatJackson open the girlfriend&emdash;with Subaru. To corroborate his Watson’s ver- result thatthe sion of events, the response student ambiguous testified that witness’ the afternoon of the day in question he left sought criticalpoint establish. his school books the Subaru; the gov- closingargument prosecutor, Yet ernment stipulated the police pur- porting his books inside the Subaru. witness, defense told girlfriend, thereby establishing Jacksonwas Watson’s II. strong- er connection Watson On appeal Watson contends that he is disputed Subaruthan evidence
entitled to a new regarding trial on grounds: three the disputed evidence regarding car, old week seven key and Subaru Tyra name is in I[t] Subaru. store. jewelry Shaw’s receipt sales ... name It’s Jackson. connect- Subaru Otherwise name It’s Hawkins. Everett owner to Jackson only ed we evidence only Jackson. Tyra We car. her user Hawkins Thomas’s Jackson Tyra about both emphasize record review witnesses, the defense answer, one of issue evidence significance Jackson?” Tyra met you think you “Do which context or twice. once her I met “Well, I think occurred. girlfriend, met I’ve think during examination cross On Tyra or twice.” once Jackson Tyra Raymond asked case, registration car, the Jackson’s Jack- Tyra knowledge about Thomas Subaru. Thomas, asked, “Mr. son. prosecu- girl- rebuttal know you believe you got “We’ve point: Thomas reiterated Jackson, right?” tor friend, Tyra her [Watson’s] knew I testified “I never plied: *5 Jackson, [Wat- his asked, Tyra “You knows he then thinks The not.” car, the to title or and her once girlfriend, met son’s] have may you believe closing After car.” response: registration Thomas’s twice, right?” gave court to district reference arguments, Thus, witness’ “Maybe.” ques- counsel’s Tyra instructions to simply standard been might “her” not are statements, arguments and tions, rather individual Jackson Instructions Jury ques- See of the Criminal form girlfriend; Watson’s 1.07, Columbia, Instr. ambiguous. Distriсt for response rendered tion 2.05. Watson’s argument, closing Prior state to exclude prosecutor’s a limine in moved counsel ref- any rarely war will argument closing closing in prosecutor’s ments v. States being Watson’s United see trial, Jackson Tyra new rant erence 1038, argued 10-11, S.Ct. 1, 105 counsel Defense U.S. Young, 470 girlfriend. Ede v. assumed United (1985), had 1 prosecutor’s L.Ed.2d 84 (D.C.Cir.1993), Tyra namely evidence, 1238, 1243 lin, F.2d in 996 fact de- As is error It girlfriend. a case. such Watson’s Watson’s Jackson ar closing inaccu- in recalled, somewhat statements to make counsel counsel fense evidence, mis Thomas asked had unsupported rately, gument misquote girl- evidence, Watson’s or to Mr. met ever you admitted “Have state Thomas instant Jackson?,” In testimony. friend, Tyra witness’ district have.” I remarks “I think sponded misquoted the wit- thought that misstated they stated court extent any Unit See ‘Yes,” testimony. answered Thоmas’s Raymond ness 1015, 1025 Gartmon, F.3d she was 146 v. whether ed States ambiguity about care taken decide do We (D.C.Cir.1998). should girlfriend wit- Wat denying in ruled erred redirect; court court the district solely on limine, in focus fact but placed answer motion son’s ness’ misrep motion. misquotation denied dur witness’ resentation pros- closing argument, initial his jury.2 arguments ing jury: told ecutor argument. unanalyzed'' but "asserted his appeal issue anas lists Although Watson 171, 177 F.2d 714 Regan, v. his Carducci denying erred 28(a)(6); see R.App. P. Fed. (D.C.Cir.1983); point argues limine, never motion address decline Accordingly, we brief.
700
A misstatement of evidence is error
F.2d 940 (D.C.Cir.1990)). This test applies
when it amounts to a statement of fact to regardless of whether our'review is for
the jury not supported by proper evidence harmless error or plain error.3 Id. The
introduced
trial,
during
regardless
court determines how the prosecutor’s
whethеr counsel's remarks were deliberate
prejudiced
misstatements
light
good
made in
faith.
Gartmon,
See
146 of the evidence presented,
asking not
F.3d
1025;
United
Donato,
States v.
99 whether evidence was sufficient to convict
426,
F.3d
432-33 (D.C.Cir.1996); United
notwithstanding
error,
but
rather
Small,
States v.
74
1276,
F.3d
1280-81 whether the court can say that the error
(D.C.Cir.1996); United States
Perholtz,
v.
did not affect
the jury’s verdict;
if in
343,
360-61 (D.C.Cir.1988); “grave doubt,” the court cannot affirm
Gaither v.
States,
United
Watson’s conviction.
v.
Kotteakos United
(D.C.Cir.1969).
1079-80
The misstatement
States, U.S.
764-65, S.Ct.
constituting error is demonstrated here by
90 L.Ed.
(1946),
cited in Lane v.
comparing the witness’ testimony with the
States,
U.S.
106 S.Ct.
statements
made
the prosecutor in clos
725,
v. (D.C.Cir.1997). nied, any contemporaneous objection during closing argument' would have superflu 3. Compare United Richardson, States v. ous. See Mendiola, United States v. (D.C.Cir. 1998) (plain error re (5th 260 n. 2 Cir.1994); view) United Donato, States v. with (harm F.3d at 432-33 Wilson, (D.C.Cir. 1994); 158-60 less review). error Because sought, Watson Mejia-Alarcon, by a limine, motion in prevent to prosecu the (10th Cir.1993). 985-88 tor from arguing to the jury that Jackson was as- compound aof use in the outfit jeans in a Hawkins Everett in evidence. not key fact aof sumption otherwise times relevant Subaru obligation no course, had defense, of key. The the car the to him connected question, object to linking evidence fingerprint nowas There government’s the perfect to much less Subaru. the key either Watson response witness’ сlarifying ambiguous Thomas’s Raymond from Aside satisfied rest examination, could but con- government’s testimony, the dam- produce which response, consisted Subaru necting Watson Instead, counsel defense testimony. aging key was testimony that disputed restrict limine in move properly could a person from recovered thus arguments, closing car bag found jewelry Shaw’s before' highlighting avoiding link sought government girlfriend. was Watson’s Jackson at whether which receipt, old week seven through a denied course, once Of some- purchased he had showed best motion, assum- limine in counsel’s store. a from Shaw’s thing no appeal this purposes ing testimony Thomas’s Second, Raymond prosecutor ruling, court’s the district case, issue central concerned witness’ use the properly could Subaru. connection namely Watson’s Jackson to show bags ziplock five prosecu- But girlfriend. a rela- contained Watson, bags near obli- thereby relieved tor base, and cocaine amount small tively ac- testimony with to ascertain gation a different bags drugs those obligation less curacy, much drugs recovered concentration placed motion limine The accurately. grams Only Subaru. de- least on notice parapherna- heroin, drug base, cocaine thought counsel fense compartment glove lia found the wit- true admission elicited inference reasonable permitted Subaru Wat- Jackson Tyra knew ness see, distribute, intent knowledge also knew *7 girlfriend. son’s Stephens, v. e.g., clear amade question compound his triggered (D.C.Cir.1994), and 553, 555-58 Nevertheless, rather doubtful. response U.S.C. under penalties heightened or characterizing shrewdly simply was Watson Yet 841(b)(l)(A)(iii)(1994). § testimo- witness’ рaraphrasing merely any car, nor inaccurate presented ny, there. him place evidence fingerprint or Thomas’s quotation direct es- was Subaru to the Connecting Watson aon ambiguity eliminating jury, distribution government’s sential re- record far So point. central was regard its evidence case during made, either was veals, effort no highlight circumstances These disputed. be- motion limine on the prosecutor’s nature prejudicial to check arguments, closing fore error. Thomas’s Raymond *8 seems, best, remotely proba purported quote testimony, conviction at tor to this nor tive of non-contested issues. Even assum reporter's *9 cases criminal majority vast In the drug operandi modus regarding circuit, transcripts in this tried mirroring through if elicited dealers, even time at available are not Federal violate doеs hypotheticals, pros- means This closing arguments. 704(b).5 Evidence Rule or condition state mental respect to provides 704 of Evidence Rule Federal may state in a criminal defendant of a infer- opinion or of an form "testimony in the defen- as to inference opinion or objectionable is admissible otherwise ence or state the mental did dant to be issue an ultimate embraces because crime constituting an element condition fact,” R. Evid. see Fed trier of decided 704(b). charged,” see Fed.R.Evid. testifying expert witness except 704(a), “[n]o eeutors and defense counsel must rely on the most egregious of cases that we will their recollections in making those argu- reversal, consider North, see ments, and judges rely must on theirs 897 n. and an examination of the appli in ruling objections. Innocent mistakes cable factors makes clear that this is not of recollection are inevitable and . hardly such a case uncommon. For protection from preju- dice, our system adversary relies on the A opportunity each side has to challenge the As the court recognizes, the first step other’s misstatements before jury, determining the severity of prosecutor’s upon the court’s standard admonition that misstatement is to compare it with the it is the jury’s recollection that controls. witness’ actual testimony. A misstatement end, In the jury’s memory of what a error, but only “to the extent that [it] witness actually provides said the correc- overstate^]” testimony. Gartmon, 146 tive errors parties. made F.3d at 1025 (quoting United In light of this reality, it is not surpris Perholtz, 842 (D.C.Cir.1988)). ing that although “it is error a prosecu In this case there clearly anwas overstate- tor to mischaractеrize a sum ment, but the difference between the wit- mation[,] [i]t also clear ... that an error ness’ testimony and the prosecutor’s char- in prosecutor’s summation will only rare acterization is not as substantial as the ly warrant reversal of a conviction.” Unit court’s opinion suggests. , ed States v. Donato problem in this case began with a (D.C.Cir.1996); see also United States v. classic error in trial technique. See Thom- Edelin, (D.C.Cir.1993) as A. Mauet, Fundamentals of Trial Tech- (“[W]e have generally been ‘chary of re (1980). niques The prosecutor asked versing convictions solely on the grounds what was in essence a compound question: of a misstatement a closing argu “Mr. Thomas, you believe that you know ”) (citation ment.’ omitted). Indeed, it is Watson’s girlfriend, Tyra Jackson, right?” so rare my colleagues are unable to In so doing, he effectively asked both cite а single case in which we have re whether the witness knew Ms. Jackson, versed a conviction solely for a prosecu and whether the witness knew her to be tor’s misquotation of testimony that girlfriend. defendant’s At that point, heard. itself the equally-elassic “objection as to form” It is “the law this that, circuit even would have been in order. Defense coun- where challenges to a prosecutor’s closing sel, however, did not make it. Instead, the argument have preserved through cross-examination unfolded as follows: timely objection, we will reverse a convic Prosecutor: Thomas, Mr. you believe tion and require a new trial only if we you know Watson’s determine that the defendant has suffered girlfriend, Tyra Jackson, ” ‘substantial prejudice.’ United States v. right? Childress, 715 (D.C.Cir.1995) Thomas: I never testified I knew her (quoting United North, States v. or not. 843, 897-98 (D.C.Cir.1990)). We have Prosecutor: Yоu believe that you may “framed the for prejudice test in terms of have met her once or the severity of miscon twice, right? duct, the measures adopted to cure the Thomas: Maybe. misconduct, and the certainty of conviction absent the improper remarks.” Id. 715; may be correct in stating that *10 see also United States Gartmon, 146 the defense had no obligation object to to F.3d (D.C.Cir.1998) (noting va the prosecutor’s question. But my col- riety of similar formulations). It is only in leagues are wrong in suggesting error, was This answers. witness’ wit- the satisfied” “rest could defense error. egregious not but produce not it “did because response ness’ fact In 701. Op. at testimony.” misstatement damaging prosecutor’s the was Nor notes, compound the precise the court Recalling As the one. it did. intentional an response— ambiguous a diffi- testimony is an yielded a witnеss’ of question contours a circumstances, asking such of of consequence best the classic in the task cult the same by not here the ambiguity But difficult more the all question. made reasonable A prosecu- of answer absence ambiguous the as witness’ Thomas that defense When concluded question. have compound jury could tor’s that implication limine concern- in disputed his motion have made would counsel it orally, if were without girlfriend statement, so he did was ing Jackson transcript true— it to be obtaining know not notice, he did without ifor untrue already exhibited In the absence he had motion. since his support particularly as- were prosecutor’s participants of the all transcript, to resist willingness that (“I never recollections—and 50. Tr. at their rely on See sumptions. 5/1/96 forced not.”). According- erroneous were оr recollections her I all of those knew testified Appendix inter- have See Revised well jury degree. could some aly, reasonable prosecutor’s Although assent as 161. (“App.”) answers Thomas’ preted of defense that Tyra Jack- than know worse you memory implied —do significantly vary not counsel, it did girlfriend? be Watson’s son be hardly Thus, it “per- judge.2 to risk have not of the defendant al- clarify- uncorroborated by defense’s said government’s fectfing] notice prosecutor Op. at put the legation response,” witness’ ing the he admission obtained risk not had he accepted he doing so ambiguity he had. thought read reasonably would jury him.1 against severity of measuring in Finally, important also error, it is when true It is sentence one just it involved note argument, closing exchange counted argu- closing two each ambiguity” “eliminating erred more spanned arguments Those ments.3 The at 701. Op. testimony. Thomas’ weAs transcript. twenty pages than Thomas told the isolated before, such many times said have girlfriend, met I’ve “I think said: severe amount rarely misstatements This was twice.” once Tyra Jackson Gartmon, F.3d See, e.g., misconduct. witness’ version stronger Perholtz, 897; North, at 1026; it was But since error. hence 361. have could a reasonable inference own, the measure its derived B prosecu- degree. one difference measuring consider factor next awhat express make than no more tor did is whether prejudice substantiality of implicit have reasonably could juror initial 3.Indeed, sentence while hand, court as the other Lhe On 1. because erroneous defendant's out, Jackson if pointed direct were a know, if it presented defense did not if Thomas girlfriend or testimony, the sen- point witness’ easily covered quotation could counsel appears Thomas. more examination the rebuttal redirect during employed tence hence quotation, at 24. Tr. See 5/2/96 characterization Donato, at all. may not contention counsel’s response to "fair, disputed, if (holding that at 432 Jackson Tyra no “there's that was con- testimony does characterization” responded: "I girlfriend,” ” error). stitute 'yes.' 5/2/96 answered thought the Tr. at *11 measures were available to mitigate its ther seen nor heard by the jury, nor sub impact. The issue here was the ject to cross-examination the defense.5 inaccurate recitation of testimony that the case, In such a it might argued be that an jury Hence, itself heard. if the jury relied instruction that the jury’s recollection con on its own recollection, rather than on that trols is questionable value since prosecutor, the error would be with- has no recollection on which to rely. out effect. The judge gave two separate Here, by contrast, the dispute was solely instructions designed to ensure precisely about evidence the jury hear, and as that result: long as the jury followed the court’s in If any reference by the court or the structions error would be attorneys to evidence does not coincide mitigated. See Marsh, Richardson v.
with your own recollection of the
evi-
U.S.
S.Ct.
95 L.Ed.2d
dence,
your
recollection
(1987)
which
(“[J]uries
presumed
are
to fol
should control during your deliberations.
low
instructions.”).
their
The statements and arguments of the
We also
ignore
cannot
defense counsel’s
lawyers are not evidence. They are
failure to use his closing argument to tell
only intended
you
to аssist
in under-
the jury that
had misstated
standing the evidence.
the evidence. Pointing out such a mis-
The court also gave an additional instruc-
statement can have a powerful, even dev-
tion aimed directly at the
problem
kind of
astating effect on an opponent’s case.
engendered
aby compound question:
Had defense counsel used his closing argu-
a lawyer’s
Sometimes
question sug- ment in that fashion, we doubtless would
gests that something
ais
fact. Whether
have found it sufficient to mitigate the
or not
something
a fact depends on impact of the
See,
misstatement.
e.g.,
answer,
witness’s
not the lawyer’s United States v. Williams-Davis, 90 F.3d
question. A lawyer’s question is not
490, 507-08 (D.C.Cir.1996) (holding that
although government’s opening statement
Both
Supreme
Court and this court
blamed defendants for two murders as to
have repeatedly held such instructions suf which it never
evidence,
introduсed
de-
ficient
mitigate
prejudice caused by fense counsel was able “to use the variance
prosecutors’
arg
misstatements in closing
between the government’s opening and its
Moreover, it bears
uments.4
emphasizing
proof to sow doubt of the prosecution
that this is not a
case which the prose
among
jurors”);
North, 910 F.2d at
cutor asserted knowledge of
895;
evidence nei
Cross v.
States,
See, e.g.,
States,
v. United
Zafiro
U.S.
jurors'
'recollection alone' is controlling
534, 541,
113 S.Ct.
will suffer self-correc on the relied always
We have com adversary system,
tive nature
court, to
instructions
bined
of these
egregious
most
but
all
notes
reporter’s
question
Moreover,
transcript
of a
absence
testimony;
connecting
understanding
his
flects
excuse
cannot
regard
in this
irrelevant
Subaru
drugs
to the
carelessness.
prosecutorial
distribution
government’s
to the
critical
point
government
Finally,
he cross-examined
time
atYet
case.
preju-
mitigation
way of
nothing
yet
Thomas,
Raymond
instructions
standard
beyond
dice
Subaru
owner
to establish
argu-
closing
statements
opening
of clari-
lack
girlfriend.
are
of counsel
testimony ments
Thomas’s
Raymond
ty
lawyer’s
directly from
stemmed
Jury
based on no evidence in the trial record.
Criminal
Instructions for the District
Columbia,
1.07,
Although Moreover,
repeated
Instr.
2.05.
jury
closing
the ameliorative effects of
instructions misstatement: once in his initial
underestimated,
argument by
quotation
again
are not to be
seе Greer v.
direct
Miller,
756,
8,
483 U.S.
766 n.
107 S.Ct.
rebuttal
reference. There can be no
3102,
(1987);
Notes
that a check of the court notes ing, Crowder, Moreover, as in United States v. 141 could have avoided the error. (D.C.Cir.1998) (in completely wrong. F.3d 1204-05 the was Particu- larly banc), prior drug where a defendant has filed an antici- `Watson's involvement patory limine, type motion `in the was of a similar or conducted in a place,4 was alerted to the fact that the existence similar its relevance to intent and any supporting alleged knowledge establishing of this is limited to that relationship di~puted. prosecu- drugs. Watson knows how to sell Cf. closing argument, then, Burch, tor's cannot be United States v. absolved as no more than a shrewd charac- (D.C.Cir.1998). рrior 1324 conviction testimony; wrong prove terization of it was and is inadmissible to the contested is prior conviction, years search of a residence. While the residence 4. Watson's seven old arrest, possession Subaru, at the time of his was for was on the same block as the was no transactionat all. there cocaine, with intent to distribute not cocaine base, during that was discovered 703 176, 184-86 Toms, 136 F.3d v. States prejudi the Yet possession. sue, namely, pro Rather, is what (D.C.Cir.1998). strong because is the evidence of effect cial re produces that questioning has scribed to infer invites knowl special some suggesting sponses there and offenses drug propensity processes. mental defendant’s edge of found paraphernalia and drugs fore of Examples at 185. Toms, 136 F.3d infer this See It is his. be must Subaru testimo expert include proscribed preclude, 404(b) what intends Rule ence conduct person’s hypothetical ny that recognized has danger offense, charged of elements” See, “met the e.g., United courts. other this hypotheti 769, Smart, at Mitchell, F.3d 49 (Dennis) v. States “consistent possession v. States cal individual’s United (D.C.Cir.1995); 776-77 distribute,” Boyd, 1186, 1193 intent Johnson, 27 F.3d with (Timothy) in person’s (Michael) hypothetical v. and that Cir.1994); States (6th United Mitchell, distribute,” (D.C.Cir. intent “was 912-14 tent Johnson, F.2d 970 contrast, the Here, by court trial, the district F.2d 996 1992). At a new drug about expert balancing, asked Rule its anew consider of Co District in limiting trafficking generally whether considering as well “dosage many trials, dis how asked also prior He lumbia. like those struction of grams “intent,” is in 100 contained be “act” would between units” tinguishing re effect base, which prejudicial overcome cocaine sufficient “[m]y Crowder, “700,” concluded See sponded conviction. priоr any one if me easily tells experience F.3d at equivalent what’s possesses individual basis Second, is no there inis [sic] crack cocaine bags con which court before record drugs selling money making business plain error, less much there clude or whatev D.C. Washington, streets admitting the court by the ask the did er.” because, contrary to testimony expert’s with was familiar expert pro no contention, there led be might case, risking that hypotheticals” “mirroring scribed infor first-hand expert think the prosecutor’s form tandem Watson, reference this about mation im- responses expert’s questions with Watson’s familiarity any indicate opinion gave permissibly v. States United processes. mental v. States See, e.g., United mind. state (7th Cir. 1236, 1242-43 F.3d Lipscomb, (D.C.Cir. 1379, 1385-89 Smart, F.3d 1994). Boyd, 55 v. 1996); States (D.C.Cir.1995); United judgment 670-72 we reverse Accordingly, 419, 421-22 Mitchell, a new (Keith) remand conviction may questions sоme If (D.C.Cir.1993). trial. questioning line close have come see, objectionable, has dissenting: Judge, GARLAND, Circuit 667, expert Boyd, g.,e
notes witnesses, acquit- because lieved concentration of a different bags five despite their charge a firearms ted Watson That the car. drugs recovered they Watson thought saw they testimony that 42%), (39% vs. small quite difference By same codefendant. gun pass a the crack all all inconsistent jury disbelieved say that we could logic, batch. same coming cocaine guilty Shank, defendant it found because Robinson, tes- despite Shank's assaulting police officer testimony of DEA (citing (D.C.Cir.1995) actually perpe- the assault timony that chemist). fact, view the better police. by the trated when he was arrested rejected, instant banc, en Crowder, where we charge. It would be surprising if prior held crimes evidence relevant not-