text:
The kinematic analysis of proper motions of stars of the XPM2, PPMXL and UCAC4 catalogues, which was performed based on the linear Ogorodnikov-Milne model is present. It is shown that in the bright end of the whole magnitude interval the kinematic parameters of the Galaxy are in agreement with values accepted by the IAU. It is found that the Oort constant B is practically independent from the magnitude and its mean value is about 10.5 km· s−1kpc−1. At the same time, the Oort constant A depends on the magnitude and its values vary from 14.22 to 5 km· s−1kpc−1. One possible reason for this observed effect could be the presence of the magnitude equation in proper motions of stars of the used catalogues.
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matches: V. V. V. V. V. V. V. V. V. V. V.


NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued August 9, 2017 Decided August 24, 2017 Before DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-1441 UNITED STATES OF AMERICA, Plaintiff-Appellee, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. v. No. 1:13-CR-00600-3 CHARLES HARPER, Defendant-Appellant. Samuel Der-Yeghiayan, Judge. ORDER Charles Harper pleaded guilty to attempted armed robbery. At sentencing he argued that he should serve his prison sentence for this conviction concurrently with a state prison sentence for a different armed robbery, but the district judge ordered that these sentences run consecutively. On appeal Harper contends that the judge did not adequately justify his sentence which, he says, effectively exceeded the range recommended by the Sentencing Guidelines. Because the district judge imposed a within-range sentence and sufficiently explained his reasons, we affirm. No. 17-1441 Page 2 Charles Harper made a career out of robbing jewelry stores. In 2011 he attempted to rob one such store in Chicago. After entering the store, he offered to sell jewelry to the store owner. When the owner began to walk toward the back to examine it, Harper leaped over the counter and drew his gun on the owner. Harper ripped off and pocketed the store owner’s necklace and then dragged him to the back of the store. Harper then rushed to the front of the store and, upon finding the front door locked, shot out a window and escaped. Harper had larger hauls from robbing other jewelry stores. In 2010 and 2011, he and his associates knocked off jewelry stores in Homer Glen, Illinois; Toledo, Ohio; and Orland Park, Illinois. One day after the Orland Park robbery, Harper was arrested. About 16 months later, in 2013, he pleaded guilty in the Circuit Court of Cook County to armed robbery for the hit on the Orland Park jewelry store and was sentenced to 22 years’ imprisonment (though he was expected to be eligible for parole in 2022). In 2015 Harper was indicted by a federal grand jury for both the attempted robbery in Chicago and the other robberies that he carried out. He was charged in a third superseding indictment with conspiring to commit Hobbs Act robbery 1 (for the robberies in Homer Glen and Toledo and the attempted robbery in Chicago), in violation of 18 U.S.C. § 1951(a) (counts one and two); attempting to commit Hobbs Act robbery (for the attempted robbery of the Chicago jewelry store) in violation of § 1951(a) (count three); and using a firearm while committing a crime of violence (the attempted armed robbery in Chicago) in violation of 18 U.S.C. § 924(c)(1)(A) (count four). Harper spent 21 months in federal custody, during which time he “participated in a proffer interview” with the FBI (without agreeing to “formally cooperate with the government”) and pleaded guilty to the third and fourth counts. Roughly four months after Harper pleaded guilty, the parties agreed that the § 924(c) offense in count four carried at least a 10-year sentence, to be served consecutively to any other sentence imposed, and that the advisory guidelines range for count three was 57–71 months (based on his offense level of 19 and criminal history category of V). Hobbs Act robbery is robbery that “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” 18 U.S.C. § 1951(a). 1 No. 17-1441 Page 3 The central issue at sentencing was whether Harper’s prison term for count three should run consecutively or concurrently to the prison term for his state court conviction. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(d). In making this decision, the sentencing judge needed to consider the 18 U.S.C. § 3553(a) factors. See 18 U.S.C. § 3584(b); United States v. Sandidge, 784 F.3d 1055, 1065 (7th Cir. 2015). In his sentencing memorandum, Harper argued that he should serve his prison term for count three concurrently with his state term because he was “not as dangerous as his record would suggest.” He pointed to the statement of an FBI agent working on his case that he was not an “inherently violent individual.” And during all his robberies, he noted, he fired only a single gunshot—and that was aimed not at a person but at the window of the Chicago jewelry store. At the sentencing hearing, counsel added that Harper’s poor health—he was suffering from gout, severe gallstones, and an unspecified knee injury—made it unlikely that he would be a threat to society after 15 years’ imprisonment (the remaining five years of his state term followed by ten years for count four), when he would then be roughly 58. The government urged that the § 3553(a) factors supported Harper’s serving consecutive sentences. It emphasized the seriousness of Harper’s robberies—both those carried out and the one attempted—because he used guns to threaten his victims, stole valuable jewelry, and the Chicago heist in particular placed bystanders at risk because he shot out a window. Deterrence, the government added, had not stopped him from living a life of crime, 2 and a consecutive prison term would better protect the public from his criminal activity. Lastly the government asserted that a consecutive term would ensure that his sentence reflected the seriousness of his crime, lest he receive a “pass” for the attempted armed robbery conviction. The district judge imposed a prison term of 60 months on count three and a term of 120 months on count four, both to run consecutively to one another and to his state prison term, as well as three years’ supervised release. The judge justified this sentence by emphasizing Harper’s extensive criminal history, the seriousness of his attempted Harper was arrested 27 times as a juvenile and 40 times as an adult and convicted of the following crimes: armed robbery, theft (four times), burglary, attempted burglary, unlawful use of a firearm (twice), assault, animal cruelty, drug dealing, and receiving and possessing a stolen car. 2 No. 17-1441 Page 4 robbery of the Chicago jewelry store, and the need to protect the public from him and to deter Hobbs Act robbery. In explaining his reasons for ordering that the prison term for count three run consecutively to the state prison term, the judge stated “There’s not sufficient justification based on the record to impose a concurrent sentence.” On appeal Harper raises three challenges to the district court’s imposition of a consecutive, rather than concurrent, 60-month prison term on count three. First he contends that the district court did not adequately justify this term of imprisonment which, he says, extends his sentence roughly five years above the guidelines range of 177–191 months. Harper arrives at this estimation by adding the 68 months left on his state sentence to the 60-month prison term on count three and the 120-month term on count four. Harper misapprehends how the guidelines affect his sentence. His 60-month prison term on count three falls within the guidelines range of 57–71 months for this conviction. Harper acknowledged in his sentencing memorandum that this range reflected the guidelines’ recommended sentence. The district judge had the discretion to impose this term consecutively to the state court sentence. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(d); United States v. Orozco-Sanchez, 814 F.3d 844, 850–51 (7th Cir. 2016); United States v. Roman-Diaz, 853 F.3d 591, 597–98 (1st Cir. 2017). The guidelines recommend that a defendant receive a federal prison sentence concurrent to an undischarged or anticipated state prison term when a state offense is relevant conduct for a federal offense, see U.S.S.G. § 5G1.3(b), (c), United States v. Schrode, 839 F.3d 545, 550–51 (7th Cir. 2016), but the Orland Park robbery was not relevant conduct for the Chicago attempted robbery. See Orozco-Sanchez, 814 F.3d at 850–51; Roman-Diaz, 853 F.3d at 598. Moreover the district judge, as directed by 18 U.S.C. § 3584(b), justified his ruling with reference to the § 3553(a) factors. Regarding Harper’s history and characteristics, No. 17-1441 Page 5 the judge catalogued his extensive criminal history 3 and noted his difficult childhood. 4 Regarding the need for the sentence to reflect the seriousness of the offense, the judge emphasized that Harper placed bystanders “at great risk” by firing his gun during the Chicago holdup. The judge added that Harper and others needed to be deterred from committing armed robberies, and the public needed to be protected from him (as reflected in the Chicago attempted robbery when he shot his gun). And to the extent that Harper needed medical care after getting treatment in state prison, the judge noted that he could receive it in federal prison. Second, Harper argues that the court, in imposing the consecutive sentence, failed to consider one of the application notes to U.S.S.G. § 5G1.3 that addresses alleged sentencing disparities created by fortuities in the timing of federal and state prosecutions. He cites application note 4(E), which states that a downward departure from a guidelines range may be appropriate in an “extraordinary case,” such as when the sequence of separate prosecutions for crimes that have overlapping partially relevant conduct extends the length of a defendant’s time in prison. See U.S.S.G. § 5G1.3 cmt.4(E). In Harper’s view, had he been convicted in state court of both the Orland Park armed robbery and the Chicago attempted armed robbery, then “concurrent sentencing would have been mandatory.” He adds that, had he been sentenced in federal court for the Chicago attempted armed robbery before being sentenced in state court for the Orland Park robbery, concurrent sentencing also would have been mandatory. This case, however, is not “extraordinary.” According to the example in application note 4(E), an “extraordinary case” can involve a defendant who already has served substantial time in prison for an offense encompassing the same partially relevant conduct as the instant offense. See U.S.S.G. § 5G1.3 cmt.4(E). But Harper’s robberies of the Chicago and Orland Park jewelry stores do not have overlapping partially relevant conduct because they were different heists involving different victims The judge pointed to Harper’s “prior convictions and arrests for receiving, possessing, and selling a stolen vehicle, burglary, disorderly conduct, criminal trespass, attempted possession of a controlled substance, attempted possession of cannabis, assault, cruelty to animals, owning animals for sport fighting, being a felon in possession of a firearm, unlawful use of a weapon and possession of cannabis.” 4 Harper grew up in the Cabrini Green housing projects, and both of his parents used drugs, which made money “always tight” and resulted in he and his siblings often not having “proper clothing, shoes, or school supplies.” 3 No. 17-1441 Page 6 that occurred more than one month apart. Further, he has not identified anything extraordinary about his case. As a final matter, he overlooks the discretion afforded to Illinois sentencing judges to impose consecutive prison terms, if necessary to protect public safety. See 730 ILCS 5/5-8-4(c)(1). See also, e.g., People v. Johnson, 43 N.E.3d 1253, 1257 (Ill. App. Ct. 2015). Third, Harper contends that the district judge ignored his argument that upon leaving prison, his advanced age (he would be about 58) would make it unlikely that he would recidivate. The district judge indeed said little at sentencing, but he did say enough when he acknowledged that he had “considered the defendant’s age.” Finally, Harper urges that the proceedings be remanded so that the district court could consider a sentencing argument that he “erroneously withdr[ew] as moot.” He refers to his supposed eligibility for a downward departure based on the time he spent in federal custody between 2015 and 2017; this eligibility, he says, was the basis for an argument that he did not press at sentencing because the concurrent sentence he sought would have rendered the matter moot. He contends that the district court committed procedural error by not addressing this argument. The district court did not err because Harper never raised this argument in the district court. He did not mention any such argument in his sentencing memorandum or at the sentencing hearing. As Harper notes, his attorney at sentencing thought it “moot” whether Harper received a downward departure for his time in federal custody if he received “a guideline sentence on Count 3 and assuming that it’s concurrent.” The court permissibly did not comment upon this statement, which merely was an observation rather than a mitigation argument that the district court needed to discuss. See United States v. Donelli, 747 F.3d 936, 940 (7th Cir. 2014). AFFIRMED.


Just over a month ago, the U.S. Supreme Court surprised many in the state tax community when it announced that it granted certiorari in South Dakota v. Wayfair, Inc., Docket No. 17-494; appealed from 901 N.W.2d 754 (S.D. 2017). Granting cert. in Wayfair means that the U.S. Supreme Court may be willing to overturn precedent that, for over fifty years, has provided and continues to provide a bright-line physical presence nexus standard applicable to states’ ability to impose sales and use taxes. See National Bellas Hess Inc. v. Illinois, 386 U.S. 753 (1967), affirmed in part by Quill Corp. v. North Dakota, 504 U.S. 298 (1992). The U.S. retail economy and its transition from brick-and-mortar storefronts to e-commerce retailers have thus been shaped by the expectation that physical presence within a taxing state is required before that state may impose sales or use taxes on a retailer.
For better or worse, the physical presence standard has eroded significantly in recent years, as states have enacted legislation or promulgated regulations – ranging from expansive agency, affiliate, or “click-through” nexus provisions to use tax notice and reporting requirements – to recover revenue allegedly lost from the application of the physical presence nexus threshold to out-of-state retailers. In the wake of the 2016 Direct Marketing Association (“DMA”) decision from the Tenth Circuit Court of Appeals, some states enacted use tax notice and reporting measures for retailers that do not collect sales tax. Under these measures, such out-of-state retailers that meet certain sales thresholds to in-state customers are required to notify both the in-state customers of their use tax obligations and the state’s Department of Revenue of the identities and amounts purchased by the in-state customers (e.g., Colorado, Louisiana, Pennsylvania, Rhode Island, Vermont, and Washington). See Direct Marketing Assn. v. Brohl, 814 F.3d 1129 (10th Cir. 2016). See also States on the Verge of a Nexus Showdown, April 22, 2016, and The End is Just the Beginning: Implications of the DMA Settlement, March 14, 2017, for our prior coverage. These use tax notification requirements can create a heavy compliance burden for retailers, and some states also impose significant penalties for noncompliance. This onerous combination has caused many out-of-state retailers to opt out of the use tax notification and reporting requirements by electing to collect sales tax, even if they do not have any in-state physical presence.
The DMA case, which made its way through the U.S. Supreme Court before the Tenth Circuit’s decision, also effectively kicked off the so-called “kill Quill” movement with U.S. Supreme Court Justice Kennedy’s 2015 concurrence stating that “[t]he legal system should find an appropriate case for this Court to reexamine Quill and Bellas Hess.” Direct Marketing Assn. v. Brohl, 135 S.Ct. 1124, 1135 (2015) (J. Kennedy concurrence). States have responded to Justice Kennedy’s invitation. Several states adopted “kill Quill” measures, whereby out-of-state internet retailers that meet certain sales and/or transactional thresholds to in-state customers are required to collect and remit sales tax to the state – a result designed to directly contradict the physical presence nexus standard. See Is the “Kill Quill” Movement Gaining Momentum, April 4, 2017; The Possible Upshot of South Dakota’s Master Plan to “Kill Quill”, December 28, 2016; and Massachusetts Promulgates Controversial Remote Vendor Nexus Regulation; Virginia E-Commerce Retailer Files Suit Protesting Constitutional Overreach, October 30, 2017, for our prior coverage.
South Dakota is one of the states to respond to Justice Kennedy’s invitation, and it has achieved its goal of having the U.S. Supreme Court reexamine the physical presence nexus standard applicable to sales and use taxes. South Dakota enacted S.D. Codified Laws § 10-64-2 (“SD Economic Nexus Legislation”), effective May 1, 2016, which extended the obligation to collect and remit South Dakota sales tax to certain retailers with no physical presence in the state. Specifically, retailers (1) with gross revenue of over $100,000 per calendar year derived from sales to South Dakota customers; or (2) with 200 or more separate transactions to South Dakota customers in a calendar year are treated as if they had a physical presence in the state.
Following the enactment of the SD Economic Nexus Legislation, South Dakota commenced a declaratory judgment action in circuit court, requesting a declaration that three e-commerce retailers without a physical presence in the state must comply with the legislation. See South Dakota v. Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc., Docket No. 32CIV16-000092 (S.D. Cir. Ct. 2017). See also South Dakota and Alabama Hatch Newegg Challenges to Quill, June 29, 2016, for our prior coverage. The retailers filed a motion for summary judgment arguing the law directly conflicts with Quill and is unconstitutional under the Commerce Clause. The circuit court granted the retailers’ motion, and, on appeal, the Supreme Court of South Dakota affirmed, properly holding that “Quill remains the controlling precedent on the issue of Commerce Clause limitations on interstate collection of sales and use taxes. We are mindful of the [U.S.] Supreme Court’s directive to follow its precedent when ‘it has direct application in a case’ and to leave to that Court ‘the prerogative of overruling its own decisions.’” Wayfair, 901 N.W.2d at 761 (Internal citations omitted). Now, the U.S. Supreme Court has found it appropriate to consider whether it should exercise its prerogative or let the physical presence standard live.
Better for the Physical Presence Standard to Burn Out? Or Fade Away?
If the U.S. Supreme Court wanted the physical presence standard to stand until Congress enacted superseding legislation, it could have sent a loud message to other states adopting unconstitutional economic nexus measures by flatly denying South Dakota’s petition for certiorari. The U.S. Supreme Court declined to do so. Therefore, the significance of the U.S. Supreme Court granting certiorari in Wayfair cannot be understated, and, frankly, it does not bode well for the continuing viability of the physical presence standard as established by the judiciary, considering that at least three of the current U.S. Supreme Court Justices may have telegraphed their intentions in prior decisions.
First, Justice Thomas, in a dissent, has stated that the Dormant Commerce Clause – the basis for the physical presence nexus standard – “. . . has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application. . . . I think it worth revisiting the underlying justifications for our involvement in the negative aspects of the Commerce Clause, and the compelling arguments demonstrating why those justifications are illusory.” Camps Newfound / Owatonna v. Town of Harrison, 520 U.S. 564, 610 (1997) (J. Thomas dissent).
Second, when DMA was before the Tenth Circuit, Justice Gorsuch – then a judge of the Tenth Circuit Court of Appeals – was critical of the bright-line physical presence standard in his concurrence, noting that “. . . Quill invited states to impose comparable [use tax notification] duties . . . . encouraging states over time to find ways of achieving comparable results through different means” and that “ . . . Quill’s very reasoning . . . seems deliberately designed to ensure that Bellas Hess’s precedential island would never expand but would, if anything, wash away with the tides of time.” Direct Marketing Assn. v. Brohl, 814 F.3d 1129, 1151 (10th Cir. 2016) (J. Gorsuch concurrence).
And third, but certainly not least, as noted above, Justice Kennedy’s concurrence in DMA sparked the “kill Quill” movement. His concurrence further noted that “[t]here is a powerful case to be made that a retailer doing extensive business within a State has a sufficiently ‘substantial nexus’ to justify imposing some minor tax collection duty, even if that business is done through mail or the Internet. After all, ‘interstate commerce may be required to pay its fair share of state taxes.’” Direct Marketing Assn. v. Brohl, 135 S.Ct. 1124, 1135 (2015) (J. Kennedy concurrence) (Internal citations omitted).
It remains to be seen whether such a powerful case will be made and how the U.S. Supreme Court will rule in Wayfair. But even if the taxpayer prevails, it may simply be delaying the inevitable result articulated by Justice Gorsuch above. That is, even if the physical presence nexus standard were upheld for sales and use tax purposes, it may then instead be destined to die a slower death through states adopting onerous use tax notification and reporting requirements and penalty regimes, designed to persuade internet retailers to collect sales tax.
But all is not lost. In Quill, the U.S. Supreme Court upheld the bright-line test of Bellas Hess, noting that, “This aspect of our decision is made easier by the fact that the underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve. . . . Congress has the power to protect interstate commerce from intolerable or even undesirable burdens. In this situation, it may be that the better part of both wisdom and valor is to respect the judgment of the other branches of the Government.” Quill Corp. v. North Dakota, 504 U.S. 298 (1992) (Internal quotations and citations omitted). Congress passed federal tax reform; it just might be able to handle a workable solution for the states too.


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The Law of Treason in the United States, by James Willard Hurst, stands as a classic legal treatise on this constitutional topic. Now that the prospect of treason trials has emerged, it is time to make it available to a larger audience, and we have done so.
Their reason for doing this was the common English practice of charging political opponents with a capital offense, often on weak evidence, under the doctrine of "constructive treason". James Wilson was the principal author of the provision. A classic case was the trial of Algernon Sidney, beheaded in 1683 for plotting against the king, based largely on passages from his treatise, Discourses Concerning Government, published posthumously in 1698.
"Treason" is itself a term which was familiar to the common law before it was used in the Statute of 25 Edward III (1350), from which the Constitution derives its language concerning the levying of war, and adhering to enemies, giving them aid and comfort. However, the treason clause contains no provision analogous to that by which the Statute of Edward III penalized the compassing of the king's death, since in a republic there is no monarch and the people are sovereign. Charges of compassing the king's death had been the principal instrument by which "treason" had been employed in England for the most drastic, "lawful" suppression of political opposition or the expression of ideas or beliefs distasteful to those in power.
The Statute of 7 William III (1694) introduced the requirement of two witnesses to the same or different overt acts of the same treason or misprision of treason, made several exceptions to what could be considered treason, and protected the right of the accused to have copies of the indictment and proceedings against him, to have counsel, and to compel witnesses, privileges not previously enjoyed by those accused of common law crimes. This statute served as a model for colonial treason statutes.
The first major cases under the U.S. Constitution arose from a 1807 conspiracy led by Aaron Burr, who had served as vice president under Thomas Jefferson 1801-05, to seize parts of Mexico or the newly acquired Louisiana Territory. Burr and two confederates, Bollman and Swartwout, were charged with treason.
Chief Justice John Marshall opened the door for making other than treason a crime in Ex parte Bollmann when he held that the clause does not prevent Congress from specifying other crimes of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the treason clause, although he cited no authority for doing so other than the doctrine of necessity. However he also stated "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that ... it has been determined that the actual enlistment of men to serve against the government does not amount to levying of war." On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases".
Burr was acquitted September 1, 1807, after an opinion rendered by Chief Justice John Marshall in U.S. v. Burr that further defined the requirements for proving treason under the constitutional restriction. The Court held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war only upon the testimony of two witnesses to his having procured the assemblage, but the operation was covert, and such testimony was unobtainable. Marshall's opinion made it extremely difficult to convict one of levying war against the United States by other than personal participation in actual hostilities.
The Burr and Bollman cases prompted the introduction in 1808 of a Senate bill to further define the crime of treason. The debate on that bill, which was rejected, provides insight into original understanding of the treason clause, that it was to guarantee nonviolent political controversy against suppression under the charge of treason or any other criminal charge based on its supposed subversive character, and that there was no constitutional authority to evade the restriction by creating new crimes under other names. Although this intent has since been established by First Amendment jurisprudence, the treason clause stands as a Tenth Amendment protection of the same right, restricting all organs of government, not just the legislative branch.
Prior to 1947, most of the precedents of cases that were successfully prosecuted were state trials for treason, most notably the trials of Thomas Wilson Dorr (1844) and of John Brown (1859) on charges of treason by levying war against the States of Rhode Island and Virginia, respectively.
Following the 1861-65 War of Secession some wanted to try southern secessionists for treason, and former Confederate President Jefferson Davis was charged with treason in U.S. v. Jefferson Davis, but the constitutional requirement in Art. III Sec. 2 Cl. 3 that an offender be tried in the state and district where the offense was committed would have meant trying him in Virginia, where a conviction was unlikely, so the case was dismissed. Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by the Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side.
Since the Bollman case, the few treason cases which have reached the Supreme Court were outgrowths of World War II and charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States, the issue was whether the "overt act" had to be "openly manifest treason" or whether it was enough if, when supported by the proper evidence, it showed the required treasonable intention. The Court in a five to four opinion by Justice Jackson took the former view, holding that "the two witness principle" barred "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,"even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses".
The Supreme Court sustained a conviction of treason, for the first time in its history, in 1947 in Haupt v. United States. Here it was held that although the overt acts relied upon to support the charge of treason — defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant — were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy.
In Kawakita v. United States, petitioner originally was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport. The question whether, on this record, Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation. This case is notable for extending U.S. criminal jurisdiction to the actions of U.S. civilian citizens abroad, which would have originally been considered unconstitutional.
World War II was followed by the Cold War, which resulted in political prosecutions of several persons for treason and other charges on dubious evidence. The trials of the Axis broadcasters - Douglas Chandler, Robert H.Best, "Axis Sally", Iva Ikuko Toguri d'Aquino as "Tokyo Rose", and indictment and mental commitment of Ezra Pound - for actions which provided no significant aid or comfort to an enemy, and were not committed within the territorial jurisdiction of the United States, muddied the jurisprudence of the treason clause.
In U.S. v. Rosenberg, the court held that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two witness rule nor the requirement as to the overt act was held to be applicable. However, no constitutional authority for the Act itself was proven.
2. J. Willard Hurst, The Law of Treason in the United States — Selected Essays (Westport, Conn.: 1971). Online at http://www.constitution.org/cmt/jwh/jwh_treason.htm.
3. Art. III Sec. 3.
5. United States v. Burr, 4 Cr. (8 U.S.) 469 (1807).
6. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).
8. Wharton's State Trials of the United States (Philadelphia, 1849), and Lawson's American State Trials (17 volumes, St. Louis, 1914-1926), trials of Thomas Wilson Dorr (1844) and of John Brown (1859).
9. Cramer v. United States, 325 U.S. 1 (1945).
10. Haupt v. United States, 330 U.S. 631 (1947).
11. Kawakita v. United States, 343 U.S. 717 (1952).
12. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 344 U.S. 889 (1952).
Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins (University of Washington Press. Seattle: 1964).
Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War (Hill & Wang, New York: 1982.

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The apostle, having made good his point, and fully proved justification by faith, in this chapter proceeds in the explication, illustration, and application of that truth. I. He shows the fruits of justification (v. 1-5). II. He shows the fountain and foundation of justification in the death of Jesus Christ, which he discourses of at large in the rest of the chapter.
I. We have peace with God, v. 1. It is sin that breeds the quarrel between us and God, creates not only a strangeness, but an enmity; the holy righteous God cannot in honour be at peace with a sinner while he continues under the guilt of sin. Justification takes away the guilt, and so makes way for peace. And such are the benignity and good-will of God to man that, immediately upon the removing of that obstacle, the peace is made. By faith we lay hold of God's arm and of his strength, and so are at peace, Isa. 27:4, 5. There is more in this peace than barely a cessation of enmity, there is friendship and loving-kindness, for God is either the worst enemy or the best friend. Abraham, being justified by faith, was called the friend of God (Jam. 2:23), which was his honour, but not his peculiar honour: Christ has called his disciples friends, Jn. 15:13–15. And surely a man needs no more to make him happy than to have God his friend! But this is through our Lord Jesus Christ—through him as the great peace-maker, the Mediator between God and man, that blessed Day's-man that has laid his hand upon us both. Adam, in innocency, had peace with God immediately; there needed no such mediator. But to guilty sinful man it is a very dreadful thing to think of God out of Christ; for he is our peace, Eph. 2:14, not only the maker, but the matter and maintainer, of our peace, Col. 1:20.
II. We have access by faith into this grace wherein we stand, v. 2. This is a further privilege, not only peace, but grace, that is, this favour. Observe, 1. The saints' happy state. It is a state of grace, God's loving-kindness to us and our conformity to God; he that hath God's love and God's likeness is in a state of grace. Now into this grace we have access prosagoµgeµn—an introduction, which implies that we were not born in this state; we are by nature children of wrath, and the carnal mind is enmity against God; but we are brought into it. We could not have got into it of ourselves, nor have conquered the difficulties in the way, but we have a manuduction, a leading by the hand,—are led into it as blind, or lame, or weak people are led,—are introduced as pardoned offenders,—are introduced by some favourite at court to kiss the king's hand, as strangers, that are to have audience, are conducted. Prosagoµgeµn escheµkamen—We have had access. He speaks of those that have been already brought out of a state of nature into a state of grace. Paul, in his conversion, had this access; then he was made nigh. Barnabas introduced him to the apostles (Acts 9:27), and there were others that led him by the hand to Damascus (v. 8), but it was Christ that introduced and led him by the hand into this grace. By whom we have access by faith. By Christ as the author and principal agent, by faith as the means of this access. Not by Christ in consideration of any merit or desert of ours, but in consideration of our believing dependence upon him and resignation of ourselves to him. 2. Their happy standing in this state: wherein we stand. Not only wherein we are, but wherein we stand, a posture that denotes our discharge from guilt; we stand in the judgment (Ps. 1:5), not cast, as convicted criminals, but our dignity and honour secured, not thrown to the ground, as abjects. The phrase denotes also our progress; while we stand, we are going. We must not lie down, as if we had already attained, but stand as those that are pressing forward, stand as servants attending on Christ our master. The phrase denotes, further, our perseverance: we stand firmly and safely, upheld by the power of God; stand as soldiers stand, that keep their ground, not borne down by the power of the enemy. It denotes not only our admission to, but our confirmation in, the favour of God. It is not in the court of heaven as in earthly courts, where high places are slippery places: but we stand in a humble confidence of this very thing that he who has begun the good work will perform it, Phil. 1:6.
III. We rejoice in hope of the glory of God. Besides the happiness in hand, there is a happiness in hope, the glory of God, the glory which God will put upon the saints in heaven, glory which will consist in the vision and fruition of God. 1. Those, and those only, that have access by faith into the grace of God now may hope for the glory of God hereafter. There is no good hope of glory but what is founded in grace; grace is glory begun, the earnest and assurance of glory. He will give grace and glory, Ps. 84:11. 2. Those who hope for the glory of God hereafter have enough to rejoice in now. It is the duty of those that hope for heaven to rejoice in that hope.
IV. We glory in tribulations also; not only notwithstanding our tribulations (these do not hinder our rejoicing in hope of the glory of God), but even in our tribulations, as they are working for us the weight of glory, 2 Co. 4:17. Observe, What a growing increasing happiness the happiness of the saints is: Not only so. One would think such peace, such grace, such glory, and such a joy in hope of it, were more than such poor undeserving creatures as we are could pretend to; and yet it is not only so: there are more instances of our happiness—we glory in tribulations also, especially tribulations for righteousness' sake, which seemed the greatest objection against the saints' happiness, whereas really their happiness did not only consist with, but take rise from, those tribulations. They rejoiced that they were counted worthy to suffer, Acts 5:41. This being the hardest point, he sets himself to show the grounds and reasons of it. How come we to glory in tribulations? Why, because tribulations, by a chain of causes, greatly befriend hope, which he shows in the method of its influence. 1. Tribulation worketh patience, not in and of itself, but the powerful grace of God working in and with the tribulation. It proves, and by proving improves, patience, as parts and gifts increase by exercise. It is not the efficient cause, but yields the occasion, as steel is hardened by the fire. See how God brings meat out of the eater, and sweetness out of the strong. That which worketh patience is matter of joy; for patience does us more good than tribulations can do us hurt. Tribulation in itself worketh impatience; but, as it is sanctified to the saints, it worketh patience. 2. Patience experience, v. 4. It works an experience of God, and the songs he gives in the night; the patient sufferers have the greatest experience of the divine consolations, which abound as afflictions abound. It works an experience of ourselves. It is by tribulation that we make an experiment of our own sincerity, and therefore such tribulations are called trials. It works, dokimeµn—an approbation, as he is approved that has passed the test. Thus Job's tribulation wrought patience, and that patience produced an approbation, that still he holds fast his integrity, Job 2:3. 3. Experience hope. He who, being thus tried, comes forth as gold, will thereby be encouraged to hope. This experiment, or approbation, is not so much the ground, as the evidence, of our hope, and a special friend to it. Experience of God is a prop to our hope; he that hath delivered doth and will. Experience of ourselves helps to evidence our sincerity. 4. This hope maketh not ashamed; that is, it is a hope that will not deceive us. Nothing confounds more than disappointment. Everlasting shame and confusion will be caused by the perishing of the expectation of the wicked, but the hope of the righteous shall be gladness, Prov. 10:28. See Ps. 22:5; 71:1. Or, It maketh not ashamed of our sufferings. Though we are counted as the offscouring of all things, and trodden under foot as the mire in the streets, yet, having hopes of glory, we are not ashamed of these sufferings. It is in a good cause, for a good Master, and in good hope; and therefore we are not ashamed. We will never think ourselves disparaged by sufferings that are likely to end so well. Because the love of God is shed abroad. This hope will not disappoint us, because it is sealed with the Holy Spirit as a Spirit of love. It is the gracious work of the blessed Spirit to shed abroad the love of God in the hearts of all the saints. The love of God, that is, the sense of God's love to us, drawing out love in us to him again. Or, The great effects of his love: (1.) Special grace; and, (2.) The pleasant gust or sense of it. It is shed abroad, as sweet ointment, perfuming the soul, as rain watering it and making it fruitful. The ground of all our comfort and holiness, and perseverance in both, is laid in the shedding abroad of the love of God in our hearts; it is this which constrains us, 2 Co. 5:14. Thus are we drawn and held by the bonds of love. Sense of God's love to us will make us not ashamed, either of our hope in him or our sufferings for him.
The apostle here describes the fountain and foundation of justification, laid in the death of the Lord Jesus. The streams are very sweet, but, if you run them up to the spring-head, you will find it to be Christ's dying for us; it is in the precious stream of Christ's blood that all these privileges come flowing to us: and therefore he enlarges upon this instance of the love of God which is shed abroad. Three things he takes notice of for the explication and illustration of this doctrine:—1. The persons he died for, v. 6-8. 2. The precious fruits of his death, v. 9–11. 3. The parallel he runs between the communication of sin and death by the first Adam and of righteousness and life by the second Adam, v. 12, to the end.
2. He died for the ungodly; not only helpless creatures, and therefore likely to perish, but guilty sinful creatures, and therefore deserving to perish; not only mean and worthless, but vile and obnoxious, unworthy of such favour with the holy God. Being ungodly, they had need of one to die for them, to satisfy for guilt, and to bring in a righteousness. This he illustrates (v. 7, 8) as an unparalleled instance of love; herein God's thoughts and ways were above ours. Compare Jn. 15:13, 14, Greater love has no man. (1.) One would hardly die for a righteous man, that is, an innocent man, one that is unjustly condemned; every body will pity such a one, but few will put such a value upon his life as either to hazard, or much less to deposit, their own in his stead. (2.) It may be, one might perhaps be persuaded to die for a good man, that is, a useful man, who is more than barely a righteous man. Many that are good themselves yet do but little good to others; but those that are useful commonly get themselves well beloved, and meet with some that in a case of necessity would venture to be their antipsychoi—would engage life for life, would be their bail, body for body. Paul was, in this sense, a very good man, one that was very useful, and he met with some that for his life laid down their own necks, ch. 16:4. And yet observe how he qualifies this: it is but some that would do so, and it is a daring act if they do it, it must be some bold venturing soul; and, after all, it is but a peradventure. (3.) But Christ died for sinners (v. 8), neither righteous nor good; not only such as were useless, but such as were guilty and obnoxious; not only such as there would be no loss of should they perish, but such whose destruction would greatly redound to the glory of God's justice, being malefactors and criminals that ought to die. Some think he alludes to a common distinction the Jews had of their people into ndyqym—righteous, hsdym—merciful (compare Isa. 17:1), and rssym—wicked. Now herein God commended his love, not only proved or evidenced his love (he might have done that at a cheaper rate), but magnified it and made it illustrious. This circumstance did greatly magnify and advance his love, not only put it past dispute, but rendered it the object of the greatest wonder and admiration: "Now my creatures shall see that I love them, I will give them such an instance of it as shall be without parallel.'' Commendeth his love, as merchants commend their goods when they would put them off. This commending of his love was in order to the shedding abroad of his love in our hearts by the Holy Ghost. He evinces his love in the most winning, affecting, endearing way imaginable. While we were yet sinners, implying that we were not to be always sinners, there should be a change wrought; for he died to save us, not in our sins, but from our sins; but we were yet sinners when he died for us. (4.) Nay, which is more, we were enemies (v. 10), not only malefactors, but traitors and rebels, in arms against the government; the worst kind of malefactors and of all malefactors the most obnoxious. The carnal mind is not only an enemy to God, but enmity itself, ch. 8:7; Col. 1:21. This enmity is a mutual enmity, God loathing the sinner, and the sinner loathing God, Zec. 11:8. And that for such as these Christ should die is such a mystery, such a paradox, such an unprecedented instance of love, that it may well be our business to eternity to adore and wonder at it. This is a commendation of love indeed. Justly might he who had thus loved us make it one of the laws of his kingdom that we should love our enemies.
1. Justification and reconciliation are the first and primary fruit of the death of Christ: We are justified by his blood (v. 9), reconciled by his death, v. 10. Sin is pardoned, the sinner accepted as righteous, the quarrel taken up, the enmity slain, an end made of iniquity, and an everlasting righteousness brought in. This is done, that is, Christ has done all that was requisite on his part to be done in order hereunto, and, immediately upon our believing, we are actually put into a state of justification and reconciliation. Justified by his blood. Our justification is ascribed to the blood of Christ because without blood there is no remission Heb. 9:22. The blood is the life, and that must go to make atonement. In all the propitiatory sacrifices, the sprinkling of the blood was of the essence of the sacrifice. It was the blood that made an atonement for the soul, Lev. 17:11.
2. Hence results salvation from wrath: Saved from wrath (v. 9), saved by his life, v. 10 When that which hinders our salvation is taken away, the salvation must needs follow. Nay, the argument holds very strongly; if God justified and reconciled us when we were enemies, and put himself to so much charge to do it, much more will he save us when we are justified and reconciled. He that has done the greater, which is of enemies to make us friends, will certainly the less, which is when we are friends to use us friendly and to be kind to us. And therefore the apostle, once and again, speaks of it with a much more. He that hath digged so deep to lay the foundation will no doubt build upon that foundation.—We shall be saved from wrath, from hell and damnation. It is the wrath of God that is the fire of hell; the wrath to come, so it is called, 1 Th. 1:10. The final justification and absolution of believers at the great day, together with the fitting and preparing of them for it, are the salvation from wrath here spoken of; it is the perfecting of the work of grace.—Reconciled by his death, saved by his life. His life here spoken of is not to be understood of his life in the flesh, but his life in heaven, that life which ensued after his death. Compare ch. 14:9. He was dead, and is alive, Rev. 1:18. We are reconciled by Christ humbled, we are saved by Christ exalted. The dying Jesus laid the foundation, in satisfying for sin, and slaying the enmity, and so making us salvable; thus is the partition-wall broken down, atonement made, and the attainder reversed; but it is the living Jesus that perfects the work: he lives to make intercession, Heb. 7:25. It is Christ, in his exaltation, that by his word and Spirit effectually calls, and changes, and reconciles us to God, is our Advocate with the Father, and so completes and consummates our salvation. Compare ch. 4:25 and 8:34. Christ dying was the testator, who bequeathed us the legacy; but Christ living is the executor, who pays it. Now the arguing is very strong. He that puts himself to the charge of purchasing our salvation will not decline the trouble of applying it.
3. All this produces, as a further privilege, our joy in God, v. 11. God is now so far from being a terror to us that he is our joy, and our hope in the day of evil, Jer. 17:17. We are reconciled and saved from wrath. Iniquity, blessed be God, shall not be our ruin. And not only so, there is more in it yet, a constant stream of favours; we not only go to heaven, but go to heaven triumphantly; not only get into the harbour, but come in with full sail: We joy in God, not only saved from his wrath, but solacing ourselves in his love, and this through Jesus Christ, who is the Alpha and the Omega, the foundation-stone and the top-stone of all our comforts and hopes-not only our salvation, but our strength and our song; and all this (which he repeats as a string he loved to be harping upon) by virtue of the atonement, for by him we Christians, we believers, have now, now in gospel times, or now in this life, received the atonement, which was typified by the sacrifices under thee law, and is an earnest of our happiness in heaven. True believers do by Jesus Christ receive the atonement. Receiving the atonement is our actual reconciliation to God in justification, grounded upon Christ's satisfaction. To receive the atonement is, (1.) To give our consent to the atonement, approving of, and agreeing to, those methods which Infinite Wisdom has taken of saving a guilty world by the blood of a crucified Jesus, being willing and glad to be saved in a gospel way and upon gospel terms. (2.) To take the comfort of the atonement, which is the fountain and the foundation of our joy in God. Now we joy in God, now we do indeed receive the atonement, kauchoµmenoi—glorying in it. God hath received the atonement (Mt. 3:17; 17:5; 28:2): if we but receive it, the work is done.
1. A general truth laid down as the foundation of his discourse-that Adam was a type of Christ (v. 14): Who is the figure of him that was to come. Christ is therefore called the last Adam, 1 Co. 15:45. Compare v. 22. In this Adam was a type of Christ, that in the covenant-transactions that were between God and him, and in the consequent events of those transactions, Adam was a public person. God dealt with Adam and Adam acted as such a one, as a common father and factor, root and representative, of and for all his posterity; so that what he did in that station, as agent for us, we may be said to have done in him, and what was done to him may be said to have been done to us in him. Thus Jesus Christ, the Mediator, acted as a public person, the head of all the elect, dealt with God for them, as their father, factor, root, and representative-died for them, rose for them, entered within the veil for them, did all for them. When Adam failed, we failed with him; when Christ performed, he performed for us. Thus was Adam typos tou mellontos—the figure of him that was to come, to come to repair that breach which Adam had made.
(1.) How Adam, as a public person, communicated sin and death to all his posterity (v. 12): By one man sin entered. We see the world under a deluge of sin and death, full of iniquities and full of calamities. Now, it is worth while to enquire what is the spring that feeds it, and you will find it to be the general corruption of nature; and at what gap it entered, and you will find it to have been Adam's first sin. It was by one man, and he the first man (for if any had been before him they would have been free), that one man from whom, as from the root, we all spring. [1.] By him sin entered. When God pronounced all very good (Gen. 1:31) there was no sin in the world; it was when Adam ate forbidden fruit that sin made its entry. Sin had before entered into the world of angels, when many of them revolted from their allegiance and left their first estate; but it never entered into the world of mankind till Adam sinned. Then it entered as an enemy, to kill and destroy, as a thief, to rob and despoil; and a dismal entry it was. Then entered the guilt of Adam's sin imputed to posterity, and a general corruption and depravedness of nature. EphÕ hoµ—for that (so we read it), rather in whom, all have sinned. Sin entered into the world by Adam, for in him we all sinned. As, 1 Co. 15:22, in Adam all die; so here, in him all have sinned; for it is agreeable to the law of all nations that the acts of a public person be accounted theirs whom they represent; and what a whole body does every member of the same body may be said to do. Now Adam acted thus as a public person, by the sovereign ordination and appointment of God, and yet that founded upon a natural necessity; for God, as the author of nature, had made this the law of nature, that man should beget in his own likeness, and so the other creatures. In Adam therefore, as in a common receptacle, the whole nature of man was reposited, from him to flow down in a channel to his posterity; for all mankind are made of one blood (Acts 17:26), so that according as this nature proves through his standing or falling, before he puts it out of his hands, accordingly it is propagated from him. Adam therefore sinning and falling, the nature became guilty and corrupt, and is so derived. Thus in him all have sinned. [2.] Death by sin, for death is the wages of sin. Sin, when it is finished, brings forth death. When sin came, of course death came with it. Death is here put for all that misery which is the due desert of sin, temporal, spiritual, eternal death. If Adam had not sinned, he had not died; the threatening was, In the day thou eatest thou shall surely die, Gen. 2:17. [3.] So death passed, that is, a sentence of death was passed, as upon a criminal, dieµlthen—passed through all men, as an infectious disease passes through a town, so that none escape it. It is the universal fate, without exception: death passes upon all. There are common calamities incident to human life which do abundantly prove this. Death reigned, v. 14. He speaks of death as a mighty prince, and his monarchy the most absolute, universal, and lasting monarchy. None are exempted from its sceptre; it is a monarchy that will survive all other earthly rule, authority, and power, for it is the last enemy, 1 Co. 15:26. Those sons of Belial that will be subject to no other rule cannot avoid being subject to this. Now all this we may thank Adam for; from him sin and death descend. Well may we say, as that good man, observing the change that a fit of sickness had made in his countenance, O Adam! what hast thou done?
Further, to clear this, he shows that sin did not commence with the law of Moses, but was in the world until, or before, that law; therefore that law of Moses is not the only rule of life, for there was a rule, and that rule was transgressed, before the law was given. It likewise intimates that we cannot be justified by our obedience to the law of Moses, any more than we were condemned by and for our disobedience to it. Sin was in the world before the law; witness Cain's murder, the apostasy of the old world, the wickedness of Sodom. His inference hence is, Therefore there was a law; for sin is not imputed where there is no law. Original sin is a want of conformity to, and actual sin is a transgression of, the law of God: therefore all were under some law. His proof of it is, Death reigned from Adam to Moses, v. 14. It is certain that death could not have reigned if sin had not set up the throne for him. This proves that sin was in the world before the law, and original sin, for death reigned over those that had not sinned any actual sin, that had not sinned after the similitude of Adam's transgression, never sinned in their own persons as Adam did-which is to be understood of infants, that were never guilty of actual sin, and yet died, because Adam's sin was imputed to them. This reign of death seems especially to refer to those violent and extraordinary judgments which were long before Moses, as the deluge and the destruction of Sodom, which involved infants. It is a great proof of original sin that little children, who were never guilty of any actual transgression, are yet liable to very terrible diseases, casualties, and deaths, which could by no means be reconciled with the justice and righteousness of God if they were not chargeable with guilt.
First, By the offence and disobedience of one many were made sinners, and judgment came upon all men to condemnation. Here observe, 1. That Adam's sin was disobedience, disobedience to a plain and express command: and it was a command of trial. The thing he did was therefore evil because it was forbidden, and not otherwise; but this opened the door to other sins, though itself seemingly small. 2. That the malignity and poison of sin are very strong and spreading, else the guilt of Adam's sin would not have reached so far, nor have been so deep and long a stream. Who would think there should be so much evil in sin? 3. That by Adam's sin many are made sinners: many, that is, all his posterity; said to be many, in opposition to the one that offended, Made sinners, katestatheµsav. It denotes the making of us such by a judicial act: we were cast as sinners by due course of law. 4. That judgment is come to condemnation upon all those that by Adam's disobedience were made sinners. Being convicted, we are condemned. All the race of mankind lie under a sentence, like an attainder upon a family. There is judgment given and recorded against us in the court of heaven; and, if the judgment be not reversed, we are likely to sink under it to eternity.
Secondly, In like manner, by the righteousness and obedience of one (and that one is Jesus Christ, the second Adam), are many made righteous, and so the free gift comes upon all. It is observable how the apostle inculcates this truth, and repeats it again and again, as a truth of very great consequence. Here observe, 1. The nature of Christ's righteousness, how it is brought in; it is by his obedience. The disobedience of the first Adam ruined us, the obedience of the second Adam saves us,—his obedience to the law of mediation, which was that he should fulfil all righteousness, and then make his soul an offering for sin. By his obedience to this law he wrought out a righteousness for us, satisfied God's justice, and so made way for us into his favour. 2. The fruit of it. (1.) There is a free gift come upon all men, that is, it is made and offered promiscuously to all. The salvation wrought is a common salvation; the proposals are general, the tender free; whoever will may come, and take of these waters of life. This free gift is to all believers, upon their believing, unto justification of life. It is not only a justification that frees from death, but that entitles to life. (2.) Many shall be made righteous—many compared with one, or as many as belong to the election of grace, which, though but a few as they are scattered up and down in the world, yet will be a great many when they come all together. Katastatheµsontai—they shall be constituted righteous, as by letters patent. Now the antithesis between these two, our ruin by Adam and our recovery by Christ, is obvious enough.
[2.] Wherein the communication of grace and love by Christ goes beyond the communication of guilt and wrath by Adam; and this he shows, v. 15–17. It is designed for the magnifying of the riches of Christ's love, and for the comfort and encouragement of believers, who, considering what a wound Adam's sin has made, might begin to despair of a proportionable remedy. His expressions are a little intricate, but this he seems to intend:—First, If guilt and wrath be communicated, much more shall grace and love; for it is agreeable to the idea we have of the divine goodness to suppose that he should be more ready to save upon an imputed righteousness than to condemn upon an imputed guilt: Much more the grace of God, and the gift by grace. God's goodness is, of all his attributes, in a special manner his glory, and it is that grace that is the root (his favour to us in Christ), and the gift is by grace. We know that God is rather inclined to show mercy; punishing is his strange work. Secondly, If there was so much power and efficacy, as it seems there was, in the sin of a man, who was of the earth, earthy, to condemn us, much more are there power and efficacy in the righteousness and grace of Christ, who is the Lord from heaven, to justify and save us. The one man that saves us is Jesus Christ. Surely Adam could not propagate so strong a poison but Jesus Christ could propagate as strong an antidote, and much stronger. 3. It is but the guilt of one single offence of Adam's that is laid to our charge: The judgment was ex henos eis katakrima, by one, that is, by one offence, v. 16, 17. Margin. But from Jesus Christ we receive and derive an abundance of grace, and of the gift of righteousness. The stream of grace and righteousness is deeper and broader than the stream of guilt; for this righteousness does not only take away the guilt of that one offence, but of many other offences, even of all. God in Christ forgives all trespasses, Col. 2:13. 4. By Adam's sin death reigned; but by Christ's righteousness there is not only a period put to the reign of death, but believers are preferred to reign of life, v. 17. In and by the righteousness of Christ we have not only a charter of pardon, but a patent of honour, are not only freed from our chains, but, like Joseph, advanced to the second chariot, and made unto our God kings and priests-not only pardoned, but preferred. See this observed, Rev. 1:5, 6; 5:9, 10. We are by Christ and his righteousness entitled to, and instated in, more and greater privileges than we lost by the offence of Adam. The plaster is wider than the wound, and more healing than the wound is killing.
IV. In the last two verses the apostle seems to anticipate an objection which is expressed, Gal. 3:19, Wherefore then serveth the law? Answer, 1. The law entered that the offence might abound. Not to make sin to abound the more in itself, otherwise than as sin takes occasion by the commandment, but to discover the abounding sinfulness of it. The glass discovers the spots, but does not cause them. When the commandment came into the world sin revived, as the letting of a clearer light into a room discovers the dust and filth which were there before, but were not seen. It was like the searching of a wound, which is necessary to the cure. The offence, to paraptoµma—that offence, the sin of Adam, the extending of the guilt of it to us, and the effect of the corruption in us, are the abounding of that offence which appeared upon the entry of the law. 2. That grace might much more abound—that the terrors of the law might make gospel-comforts so much the sweeter. Sin abounded among the Jews; and, to those of them that were converted to the faith of Christ, did not grace much more abound in the remitting of so much guilt and the subduing of so much corruption? The greater the strength of the enemy, the greater the honour of the conqueror. This abounding of grace he illustrates, v. 21. As the reign of a tyrant and oppressor is a foil to set off the succeeding reign of a just and gentle prince and to make it the more illustrious, so doth the reign of sin set off the reign of grace. Sin reigned unto death; it was a cruel bloody reign. But grace reigns to life, eternal life, and this through righteousness, righteousness imputed to us for justification, implanted in us for sanctification; and both by Jesus Christ our Lord, through the power and efficacy of Christ, the great prophet, priest, and king, of his church.

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The government argues that Mr. xxxxxxx's attack on the constitutionality under the Commerce Clause of 18 U.S.C. § 922(g) is barred because it was not raised in the district court. However, because defendant's argument that § 922(g) exceeds Congress's power under the Commerce Clause, in effect, challenges the district court's subject matter jurisdiction over the count of the indictment charging Mr. xxxxxxx with unlawful possession of a firearm by a convicted felon, the issue cannot be waived and therefore can be raised for the first time on appeal.
Moreover, this Court can consider the issue under the supervening-decision doctrine as the Supreme Court's decision in United States v. Lopez, 115 S. Ct. 1624 (1995), changed in Mr. xxxxxxx's favor the settled law regarding Congress's authority under the Commerce Clause. Even assuming the supervening-decision doctrine does not apply, this Court can review the issue for plain error. In this regard, although under pre-Lopez decisions it was sufficient under § 922(g) to show that a possessed firearm had travelled at some time in interstate commerce, a more significant nexus and effect on commerce is required under the Lopez substantial effect test. Therefore, the district court committed plain error in basing Mr. xxxxxxx's § 922(g) conviction on a statute that exceeds Congress's commerce power.
Although the government concedes that Mr. xxxxxxx's conviction under 18 U.S.C. § 922(k) for possession of a firearm with an obliterated or altered serial number must be reversed, it contends that the district court did not commit plain error in its treatment of the felon in possession count with other firearms charges in Mr. xxxxxxx's joint trial. Although the trial court did take some precautions to limit the potential prejudice resulting from such a joint trial, it made several unnecessary references in its jury instructions to the prior conviction and failed to give any limiting instruction regarding the prior conviction. Given that the prosecution's evidence against Mr. xxxxxxx was not overwhelming, the court's inadequate handling of the felon in possession count could have affected the verdict. Therefore, the court's mishandling of that count constitutes plain error.
Finally, the government maintains that the district court did not err in permitting the prosecutor to impeach the principal defense witness with her prior misdemeanor conviction for possession of stolen property. Contrary to the government's argument, the impeachment was improper under FED. R. EVID. 609(a)(2) because the misdemeanor offense did not involve dishonesty or false statement. The improper impeachment was exacerbated by the prosecutor's statements during the same defense witness's cross-examination in which he called her a "criminal" and unnecessarily referred again to her prior conviction. This prosecutorial misconduct constitutes plain error because the remarks were unduly prejudicial and could have affected the outcome of the case in that the witness's credibility was critical to Mr. xxxxxxx's defense. The district court did not mitigate this prejudice because it failed to give a cautionary instruction concerning the witness's prior conviction.
The combination of the district court's mishandling of the felon in possession count and its errors relating to the impeachment and the cross-examination of the most crucial defense witness constitutes plain error and requires the reversal of Mr. xxxxxxx's convictions, the dismissal of the charges in Counts One and Two, and a new trial on Count Three.
The government argues that because Mr. xxxxxxx did not raise in the district court the issue that 18 U.S.C. § 922(g) violates the Commerce Clause, he has forfeited his claim on appeal. Gov. Br. 8-11. Although Mr. xxxxxxx acknowledges that this Court generally will not consider claims raised for the first time on appeal, two exceptions to that general rule apply in this case. Before discussing those exceptions, it is important to note that this is not a case in which the defendant took some action in the district court that can be deemed a waiver of this claim as, for example, where the defense requests a jury instruction and then argues on appeal that the instruction was erroneous. Thus, even if the Court determines that neither of the exceptions discussed below is applicable, at a minimum, the plain error standard should be applied.
First, as the government recognizes, challenges to subject matter jurisdiction cannot be waived and therefore can be raised for the first time on appeal. Gov. Br. 9 n.2. In this appeal, Mr. xxxxxxx argues that Congress did not have power under the Commerce Clause to proscribe possession of a firearm by a felon. Contrary to the government's argument (Gov. Br. 9 n.2), if § 922(g) exceeds Congress's power under the Commerce Clause, the district court could not exercise jurisdiction over the subject matter contained in the count of the indictment charging Mr. xxxxxxx with unlawful possession of a firearm by a convicted felon. See United States v. Stillwell, 900 F.2d 1104, 1110 n.2 (9th Cir.) (defendant's argument that Congress did not have power under Commerce Clause to proscribe arson of private residence is jurisdictional and therefore cannot be waived), cert. denied, 498 U.S. 838 (1990). The government's citation to United States v. Ryan, 41 F.3d 361, 363-64 (8th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1793 (1995), is not persuasive because that case is distinguishable on the basis that the defendant there failed to raise the question whether Congress had exceeded its power under the Commerce Clause. Therefore, Ryan's argument on appeal that the jury instructions did not satisfy the interstate commerce nexus requirement of 18 U.S.C. § 844(i), had no bearing on the district court's subject matter jurisdiction. Id. at 363-64.
The other applicable exception to the general rule that a federal appellate court will not consider an issue not passed upon below is the supervening-decision doctrine. See Def. Br. 13-14. The government argues that this doctrine is not applicable here because at the time of defendant's trial, there was no controlling authority in this circuit on the Commerce Clause issue raised on appeal by Mr. xxxxxxx and because the Supreme Court's recent decision in United States v. Lopez, 115 S. Ct. 1624 (1995), did not change the law in defendant's favor. Gov. Br. 10-11. This argument is simply wrong.
Although the question of whether § 922(g) was a valid exercise of Congress's power under the Commerce Clause had not been decided in this jurisdiction at the time of defendant's trial, there was controlling Supreme Court authority on an analogous, if not identical, point. See Scarborough v. United States, 431 U.S. 563, 566 (1977) (government can prove jurisdictional element of felon in possession offense by showing that possessed firearm had travelled at some time in interstate commerce); United States v. Bass, 404 U.S. 336, 347 (1971) (government must prove as essential element of felon in possession offense that possession was "in commerce or affecting commerce"). Moreover, prior to the Lopez decision, the Supreme Court had not struck down commerce-based legislation for approximately sixty years. Under these circumstances, it was reasonable for the defense in this case to conclude at the time of trial that the law interpreting Congress's power under the Commerce Clause was well-settled and that therefore an argument that § 922(g) exceeded that power, was foreclosed.
Additionally, although the Lopez Court invalidated a different statute (18 U.S.C. § 922(q)) than the one at issue here, it clarified the legal standard governing certain congressional regulations under the Commerce Clause. For statutes, like § 922(g), whose constitutional validity depends only on the effect of the regulated activity on interstate commerce, the question whether Congress has exceeded its grant of power requires an analysis of "whether the regulated activity `substantially affects' interstate commerce." Lopez, 115 S. Ct. at 1630. Because § 922(g) fits within this analytical framework, and because the "substantially affects" test requires a more significant impact on interstate commerce than pre-Lopez case law, the Lopez decision changed the law regarding Congress's authority under the Commerce Clause to enact § 922(g), in Mr. xxxxxxx's favor. For these reasons and in the interests of justice, this Court has the discretion to apply the supervening-decision doctrine to resolve this important constitutional issue.
Assuming that the supervening-decision doctrine does not apply, this Court still can review this issue for plain error. See United States v. Washington, 12 F.3d 1128, 1138-39 (D.C. Cir.) (distinguishing plain error and supervening-decision doctrine analyses), cert. denied, 115 S. Ct. 98 (1994). In United States v. Knowles, 29 F.3d 947, 950-52 (5th Cir. 1994), the court held that the defendant's conviction under 18 U.S.C. § 922(q) constituted plain error in light of the Lopez decision. In reaching this conclusion, the court indicated that the constitutional dimension of the error and the novelty of the Lopez decision militated in favor of allowing the defendant to raise a Lopez-based argument for the first time on appeal. Id. at 951. Although the error here, as in Knowles, was not "obvious," the Knowles court found that it was "self-evident that basing a conviction on an unconstitutional statute is both `plain' and an `error' as Olano [United States v. Olano, 113 S. Ct. 1770 (1993)] defines those terms." Id. The government cites no authority for the proposition that basing a conviction on an unconstitutional statutes is not plain error because the error was not "obvious" under existing law. Because the error in this case -- basing Mr. xxxxxxx's conviction on a statute that exceeds Congress's power under the Commerce Clause -- is a legal error that is "plain" and clearly prejudicial, Mr. xxxxxxx's conviction based on § 922(g) must be reversed.
Relying on the Supreme Court decisions in Bass and Scarborough, the government argues that § 922(g) regulates local activity, i.e., gun possession, that either affects interstate commerce itself or belongs to a class of activity that substantially affects commerce. Gov. Br. 13-14. Citing to Bass, the government contends that the legislative history of the predecessor felon in possession statute (18 U.S.C. § 1202(a)) demonstrates that Congress considered firearm possession by felons as part of a class of activities that is a burden or a threat on interstate commerce. Gov. Br. 14. Although Congress did make such a finding, the Bass Court itself considered such findings of `burdens' and `threats' as "simply stat[ing] Congress' view of the constitutional basis for its power to act; the findings do not tell us how much of Congress' perceived power was in fact invoked." 404 U.S. at 346 n.14.
Moreover, taken as a whole, the legislative history of § 1202(a) is ambiguous, at best. In fact, the senator who introduced the legislation remarked that "the amendment reaches the mere possession of guns without any showing of an interstate commerce nexus." Bass, 404 U.S. at 346 (emphasis added). Thus, notwithstanding the congressional findings, it is unclear whether § 1202(a) was intended to regulate only activities that substantially affected commerce. In Scarborough, the Court interpreted this legislative history as an indication that Congress intended to require no more than a minimal commerce nexus. 431 U.S. at 575. The Court acknowledged that "Congress was not particularly concerned with the impact on commerce except as a means to ensure the constitutionality of [the statute]." Id. at 575 n.11. Thus, under the more exacting standards of the Lopez substantial effect test, the minimal nexus required by Bass and Scarborough, neither of which directly addresses the issue as to whether the statute was within Congress's authority under the Commerce Clause, has been undermined.
The government claims that the activity prohibited by § 922(g), that is, possession by a felon of a firearm that moved in interstate commerce, falls into the Lopez Court's second category of activity that Congress may regulate under its commerce power, `things in interstate commerce.' Gov. Br. 16 (quoting Lopez, 115 S. Ct. at 1629). Apparently, it is the government's position that Congress can regulate any "thing" that ever moved in commerce. Although that proposition was more defensible prior to the Lopez decision, it is clear that the Court now requires a more significant nexus and effect on commerce. 115 S. Ct. at 1630-31.
Contrary to the government's contention, the text and legislative history of § 922(g) require that the statute be placed within the Lopez Court's third category of commerce regulations, requiring that the activity substantially affect interstate commerce. See Def. Br. 19-22. Although § 922(g) contains ambiguous language for the showing required to establish the interstate commerce connection, because the possessory component of the statute includes an "affecting commerce" element, the statute falls more logically into the third rather than the second category. Moreover, in Scarborough, the Court interpreted the "affecting commerce" phrase as Congress's assertion of commerce power to cover activity affecting interstate commerce. 431 U.S. at 571. This is further indication that § 922(g) fits within the third category of regulations.
Finally, the only decision by a court of appeals on this issue, United States v. Hanna, 55 F.3d 1456, 1461-62 n.2 (9th Cir. 1995), is not persuasive because it contains very little analysis of this issue and virtually no discussion of how § 922(g)'s jurisdictional element is sufficient to establish its constitutionality under the Commerce Clause in light of the Lopez decision. Similarly, the various district court decisions cited by the government (Gov. Br. 17) do not address the arguments made by Mr. xxxxxxx on this point. In contrast to the cited decisions, this Court can underscore the Lopez limitations on the federalization of firearms offenses in the name of the Commerce Clause by holding that the federal felon in possession statute is constitutionally infirm and must be invalidated.
The government argues that by accepting the parties' stipulation regarding Mr. xxxxxxx's prior conviction and by not disclosing to the jury the nature of the underlying charge, the district court took adequate precautions to ensure that the defendant was not prejudiced by his joint trial of other firearms charges with the felon in possession count. Gov. Br. 23-25. Although these precautions are among those suggested by this Court in United States v. Dockery, 955 F.2d 50, 54 (D.C. Cir. 1992), they only had limited value in avoiding potential prejudice to Mr. xxxxxxx because they did not keep from the jury the fact that he was a convicted felon. Moreover, the repeated reminders that Mr. xxxxxxx was an ex-felon were inflammatory and highly prejudicial. Although the prosecutor's references to the prior conviction arguably were appropriate (see Gov. Br. 23-24), contrary to the government's claim, the district court's four references in its jury instructions to prior conviction were unnecessary and unduly prejudicial. [A. 43-45] In this regard, the court first reminded the jury of the prior conviction when it reviewed the charges in the indictment. In instructing on the essential elements of the offenses, the court made three additional references to the prior conviction. [A. 44-45] If the district judge had proceeded with a "high level of care," as required by Dockery, 955 F.2d at 50-51, it would have combined its instructions on the charges in the indictment and the elements of the offense so as to avoid unnecessary references to the prior conviction and it would have omitted any such reference from its instruction on the interstate commerce element of the felon in possession count. [A. 45] Instead, the court's instructions unnecessarily reminded the jurors that Mr. xxxxxxx was a convicted felon.
While acknowledging this Court's recognition of the importance in a joint trial involving a felon in possession count of giving a limiting instruction regarding the prior conviction, the government contends that the failure to give such an instruction in this case is not error under this Court's recent decision in United States v. Rhodes, No. 92-3132, slip op. at 7-8 (D.C. Cir. August 22, 1995). Gov. Br. 24-25. Rhodes stands for to the proposition that a district court does not commit plain error when it fails to give an instruction sua sponte limiting the jury's use of impeachment testimony. That case then is distinguishable on its facts because there the prosecution presented impeachment testimony that otherwise would have been inadmissible hearsay. Thus, the omitted limiting instruction would have instructed the jury that the testimony was admitted solely for the purpose of assessing the witness's credibility and was not to be considered substantively. The failure to give such an instruction clearly is not as prejudicial to the defense as the failure to caution a jury against using a defendant's prior conviction as propensity evidence.
Moreover, although under Rhodes the failure to give a limiting instruction sua sponte may no longer be reversible error, in and of itself, this Court still can consider the lack of appropriate cautionary instructions in determining whether the district court took adequate precautions to guard against undue prejudice from the joint trial of the felon in possession count. See United States v. Fennell, 53 F.3d 1296, 1302 (D.C. Cir. 1995) (instructions cautioning jurors against using prior felony conviction for any purpose other than to establish that element of § 922(g)(1) offense provides additional protection of defendant's rights in joint trial involving felon in possession count). In the instant case, the trial court's unnecessary references to Mr. xxxxxxx's prior felony conviction combined with the failure to give any cautionary instruction at all constituted plain error.
Finally, the government argues that the evidence of Mr. xxxxxxx's guilt was so strong that the repeated references to his prior conviction and the lack of an appropriate cautionary instruction could not have affected the verdict. Gov. Br. 25. To the contrary, the evidence against Mr. xxxxxxx was not overwhelming in that he presented four defense witnesses who directly rebutted the testimony of the two principal police witnesses. Thus, the case was a close one requiring the jury to make various credibility determinations in evaluating the conflicting testimony of the opposing witnesses. Under these circumstances, the trial court's mishandling of the felon in possession count could have tipped the balance.
The government contends that the district court did not err in permitting the prosecutor to impeach the principal defense witness, Veronica May, with her prior misdemeanor conviction in New York for possession of stolen property. Gov. Br. 28-30. In this regard, the government argues that the conviction was admissible under FED. R. EVID. 609(a)(2) as a crime that involved "dishonesty or false statement, regardless of the punishment." Gov. Br. 28. In making this argument, the government attempts to distinguish the offense of possession of stolen property from other theft and robbery offenses, recognizing that this Court has decided that various theft-related offenses do not qualify under Rule 609(a)(2). See United States v. Smith, 551 F.2d 348, 362-63 (D.C. Cir. 1976).
. . . it may qualify as a crime involving dishonesty or false statement'") (Gov. Br. 29-30), does not support its argument because in the instant case, the prosecution failed to present any evidence that May's prior crime involved fraud or deceit.
Contrary to the government's position (Gov. Br. 30), the improper impeachment of the star defense witness could have affected the outcome of the trial because the case came down to a credibility determination between the government and defense witnesses. In citing United States v. Lipscomb, 702 F.2d 1049, 1063 (D.C. Cir. 1983), for the proposition that impeachment of a defense witness carries less risk of prejudice than impeachment of a defendant, the government fails to note that the Lipscomb court also recognized the prejudicial effect of impeachment of a defense witness. See Def. Br. 31. The prejudice Mr. xxxxxxx suffered as a result of the improper impeachment of Ms. May was not that the jury inferred his guilt from the fact that she had a prior conviction but, instead, that the jury's knowledge of her prior conviction may have caused it to unduly discount her testimony and therefore significantly weaken his defense.
Clearly, May's response that she did not know what a "criminal" looked like and that she "could be," i.e., could look like, a "criminal," was an appropriate answer to the prosecutor's improper and ambiguous question. Because May's answer did not deny the existence of her prior conviction, it clearly did not "invite" the prosecutor to remind the jury of her conviction. In any event, her response certainly did not "invite" the prosecutor to characterize her as a "criminal." The government's argument on this point should be rejected.
Alternatively, the government claims that "[a]t worst, the prosecutor's statements were "fair comment" since the jury already had learned of May's prior conviction. Gov. Br. 31. Not surprisingly, the government fails to cite any authority for the proposition that there is a right to "fair comment" during cross-examination. The prosecutor's declaration that May was a "criminal" was not even in the form of a question. Moreover, the prosecutor's statement could not constitute "fair comment" because it erroneously assumes that a prior conviction brands someone a "criminal" for life. Thus, the assertion was an inaccurate characterization and was highly prejudicial because the term "criminal" connotes a bad and untrustworthy person who should not be believed. Because May's credibility was critical to Mr. xxxxxxx's defense, the prejudice is clear. Perhaps, the prosecutor was referring to May's other arrests and misdemeanor convictions which were not introduced into evidence. If so, the comment also was improper because it went outside the record.
The government contends that by bringing up May's conviction a second time, the prosecutor gave her the opportunity to explain it away. Gov. Br. 31. Although May did formulate what was arguably an effective response to the prosecutor's comments, it is speculative as to whether it lessened the effect of the improper impeachment. It is more likely that the damage caused by the prosecutor's improper characterization of May as a "criminal" could not be undone. In any event, it is clear that the seriousness of this prosecutorial misconduct is not lessened by the witness's efforts to defend herself against it.
The government maintains that even if the prosecutor's comments were erroneous, no plain error occurred because the remarks were not unduly prejudicial. Gov. Br. 32. Although the government cites United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985), in support of this proposition, the prosecution's evidence against the defendant in that case was overwhelming and the prosecutor's subsequent statements helped to mitigate the prejudice caused by the improper remarks. Thus, Monaghan is distinguishable on its facts as the prosecutor in the instant case did not mitigate the prejudice and the government's evidence against Mr. xxxxxxx was not overwhelming.
As pointed out in Mr. xxxxxxx's opening brief, the prosecutor's comment that Ms. May was a "criminal" was particularly prejudicial because of the felon in possession charge against Mr. xxxxxxx. Def. Br. 39. The jury could have inferred from the prosecutor's improper characterization of Ms. May that because of his prior conviction, Mr. xxxxxxx also was a "criminal," who therefore was more likely to have committed the other gun possessory charges against him.
Although this Court's recent decision in United States Rhodes, No. 92-3132, slip op. at 7-8, requires the defense to request a limiting instruction, the district court's failure to give a cautionary instruction concerning May's prior conviction still can be considered in weighing the prejudice caused by the prosecutor's improper comments regarding that conviction. See United States v. Mitchell, 1 F.3d 235, 242-43 (4th Cir. 1993) (failure to instruct jury that defense witness's conviction could not used as substantive evidence of defendant's guilt contributed to prejudicial effect of prosecution's improper comments regarding conviction).
Finally, the government's citation to United States v. Childs, 598 F.2d 169, 175-76 (D.C. Cir. 1979) (Gov. Br. 33-34), is unpersuasive because that case is distinguishable on its facts. In Childs, the court failed to give a limiting instruction with respect to other crimes evidence that was introduced for the limited purpose of proving intent. Id. at 175-76. In holding that the failure to give such an instruction was not error, the Court found that there was no other purpose for which the jury could have considered the other crimes evidence. In contrast, as stated above, the jury in this case could have considered the prosecutor's improper remarks about Ms. May to apply to Mr. xxxxxxx, as well, because he also had a prior conviction. Thus, the combination of the prosecutor's erroneous remarks and the court's failure to give any cautionary, mitigating instruction caused substantial prejudice to Mr. xxxxxxx's defense.
For the foregoing reasons, as well as those set forth in defendant's opening brief, Mr. xxxxxxx's conviction should be reversed, the charges in Counts One and Two dismissed, and a new trial ordered on Count Three.
I hereby certify that the foregoing Reply Brief for Appellant Johnny J. xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).
I hereby certify that two copies of the foregoing Reply Brief for Appellant Johnny J. xxxxxxx was served, by first-class mail, postage-prepaid, upon Leanne Shaltis, Assistant United States Attorney, U.S. Attorney's Office for the District of Columbia, 555 Fourth Street, N.W., Room 10-435, Washington, DC 20001, this _____ day of September, 1995.