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December 23, 1999


The opinion of the court was delivered by: Sporkin, District Judge.


In 1996, while on parole from a 1981 District of Columbia conviction, Edward Maddox was arrested and charged with being a felon in possession of a firearm when a gun was found in a car that he had rented.*fn1 Maddox was not in the car when he was arrested. His first trial, before this Judge, ended in a mistrial with a hung jury, 10-1 in favor of acquittal.*fn2 A second trial, before another Judge in 1997, produced a conviction, but that verdict was overturned due to the prosecutor's reference to matters not in the record in her closing statement. At Maddox's third trial, before this Judge, he was acquitted. After the acquittal, the District of Columbia Board of Parole (the "Parole Board") revoked Maddox's parole on the basis of the charges tried before this Court. Maddox has now spent more than three years in prison since his 1996 arrest, despite having been acquitted of any wrongdoing.

Maddox's parole revocation hearing was prosecuted by the same Assistant United States Attorney (with the approval of three of his superiors) who lost the case before this Court, a somewhat exceptional event since AUSAs are not authorized by law to prosecute such matters, and the AUSA in question had never appeared at a parole revocation hearing in his first 21 years of government service. Maddox has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that the prosecutor's "vindictive behavior" and ex parte contacts with the Parole Board improperly tainted his hearing, and deprived him of due process of law under the Fifth Amendment to the Constitution.


In 1996, Edward Maddox was living in Northeast Washington, on parole for a series of offenses which occurred in 1981. On April 9, 1996, Maddox and two friends were together in a parking lot in an area of Washington, D.C. known as Simple City, a high crime area. Maddox and his associates were stopped by some 10-12 "jump out" police officers, some in masks. The "stop" was based upon the police officers' investigation of the crime of "incommoding." "Incommoding" is a common law crime defined as a group of three or more individuals blocking a pedestrian walkway, and since 1892 has been a crime in the District of Columbia. See D.C.Code § 22-1107. A District of Columbia police officer testified at Maddox's trial that groups of officers routinely "jump out" of their cars and accost people in crime-prone neighborhoods for "incommoding" as a pretext for a contraband search.

The police testified that as they approached Maddox he dropped a set of keys on a key chain showing the Enterprise car rental company logo.*fn3 The police officer located a car in the parking lot with a license plate displaying the Enterprise logo. Maddox was arrested after a handgun and a quantity of PCP were found under the driver's seat of the car, along with Maddox's driver's license and a car rental agreement in his name. Maddox's fingerprints were not found on any of the evidence, and he was not in the car at the time of the arrest. Indeed, no witness placed Maddox in the car on the day of his arrest. The drug charge was dismissed by the government prior to the third trial. Maddox was tried before this Court in September 1996. A mistrial was declared after the jury stated that it was hopelessly deadlocked, 10-1 in favor of acquittal. Citing the 10-1 vote for acquittal, this Court released Maddox into the community on September 17, 1996, pending retrial. During this period, Maddox was a law abiding citizen.

The second trial was held before Judge Harold Greene on February 27, 1997, and resulted in a conviction. Maddox was incarcerated on February 28, 1997, and has remained in prison ever since. The conviction was reversed on appeal because the prosecutor argued facts not in evidence in her closing statement to the jury. United States v. Maddox, 156 F.3d 1280 (D.C.Cir. 1998). The prosecutor made excuses for why the car keys were not kept as evidence, and bolstered a police officer's testimony by declaring that all of the other police officers, had they been called to testify, would have corroborated the government's version of the facts. In reversing the jury's verdict, the Court of Appeals remarked:

  "The practice disregards, indeed violates, the rules
  governing the admission of evidence. Typically, the
  attorney's statements amount to blatant hearsay about
  matters not in the record. The transgressing attorney
  makes himself an unsworn witness. And when it is the
  prosecutor who goes outside the record, the effect is
  to deprive the defendant of his right to
  cross-examine the witnesses against him."

U.S. v. Maddox, 156 F.3d at 1282.

Maddox's third trial was held before this Judge in April 1999. At that trial, for the first time, Maddox put on a defense. His girlfriend at the time, now his wife, Dorothy Maddox, testified that on the day in question she took the car to visit her sister. While at her sister's home, she loaned the car to her now-deceased nephew, Robert Gordon, at his request. Later in that day Mrs. Maddox testified that she received a call from Maddox to deliver the car to him at the parking lot in Simple City. Mrs. Maddox stated that she retrieved the car from her nephew and drove the car to Simple City where she exited the car and gave the keys to Maddox. She said her sister, Kokeeta Edwards, followed her in Ms. Edwards' car and she left the area in her sister's car. Kokeeta Edwards confirmed Mrs. Maddox's testimony.

Martin Colbert, a Metrobus driver, testified that on April 9, 1996, he received a call from Maddox who said he needed a ride from Landover, Maryland to the District. Colbert stated that he picked Maddox up at his place of residence and delivered him to the parking lot at Simple City. Antonio Harper, who at the time of the trial was incarcerated, testified that he met Maddox in the parking lot and was with him when the "jump out" event occurred. He confirmed that Mrs. Maddox drove up in the Enterprise car and after parking it gave the key to Maddox. At no point on that day did he see Maddox in that car.

In its rebuttal case, the Government called Myisha Foxworth. She identified herself as Robert Gordon's live-in girlfriend. She testified that on the day in question Gordon obtained the Enterprise car from his aunt and the two of them drove off in the car. She stated that Gordon had several guns, and that on the day in question, she saw Gordon place a handgun in his waistband before they drove off in the car. When shown the gun that was retrieved from the Enterprise rental car she said it resembled the gun her boyfriend had on that day. She testified that her boyfriend dealt in drugs and was murdered prior to the third trial.

As stated above, no witness placed Maddox in the rental car on the day in question. The government's main police witness was impeached at trial by prior inconsistent statements about his investigation of Mr. Maddox. Three days after the arrest in 1996, the officer testified at a preliminary hearing that he had personally removed the gun from under the rented car's driver's seat, while wearing gloves. He stated then that he held the gun by the grips to avoid smudging possible fingerprint evidence. At the 1999 trial, the officer stated that while he did discover the gun, he had in fact not removed it from the car. Moreover, at trial he misidentified the weapon and had to be recalled to identify a second weapon as the one that had been found in Maddox's rental car.

The jury returned a verdict of not guilty in less than one hour. This Court ordered Maddox's immediate release on April 19, 1999. For reasons that are still unclear, that order was not complied with, and on April 21 the Parole Board executed a detainer, seeking to revoke Maddox's parole. Maddox filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. On April 22, this Court issued an order to the Parole Board, directing it to show cause why Maddox should not be released pending his revocation hearing. At a hearing on April 26, 1999 the Parole Board claimed that this Court lacked jurisdiction to order Maddox's release from the District of Columbia detention facilities. This Court found that it did have jurisdiction under 28 U.S.C. § 2241. See, Sutherland v. District of Columbia Board of Parole, 366 F. Supp. 270 (D.D.C. 1973); Blair-Bey v. Quick, 151 F.3d 1036 (D.C.Cir. 1998) (finding that district court had jurisdiction to entertain habeas petition challenging D.C. Parole Board procedures in denial of parole).

At the April 26, 1999 hearing, the Parole Board's only explanation for its decision to continue Maddox's incarceration was a concern for public safety should Maddox be released into the community. The Court found that concern was problematic, as Maddox was on release following his first trial, for nearly five months, including the period of the pendency of his second trial. During that time, Maddox complied with the conditions of his parole and the Parole Board took no action to have him recommitted. Maddox's continued incarceration, after being acquitted by a jury, cannot be easily squared with the Parole Board's prior indifference to Maddox's release.

At the conclusion of the April 26 hearing, this Court again released Maddox, and instructed him to appear at the District of Columbia Jail for a parole revocation hearing, scheduled for May 4, 1999. In an emergency motion, the District of Columbia obtained a stay of this Court's order releasing Maddox, from the Court of Appeals for the District of Columbia Circuit. As a result, Maddox remains in prison at this time.

The Parole Revocation Hearing

Before the hearing began, at the Parole Board's request, the AUSA had an ex parte meeting with it, behind closed doors. Mr. Howard testified that the meeting lasted approximately 15 minutes; the AUSA stated that it lasted possibly up to 12 minutes. At the hearing before this Court, the AUSA could not recall what was discussed at that meeting. He did not deny that he possibly went over the merits of his case against Maddox.

It is evident from the transcript that the AUSA prosecuted the case against Maddox at the hearing.*fn4 He called and cross-examined witnesses. He introduced evidence and objected to admission of certain evidence.*fn5 The AUSA even had the hubris to instruct the Parole Board how to proceed in this matter:

  [AUSA]: You're not only looking at the trial,
    you're looking at Mr. Maddox as an individual that
    you're responsible for in returning to the
    community. If you so choose, now understand, I was
    a parole officer at one point. In Morrissey v.
    Parole says, that you first, as you're doing, have
    to make a determination whether or not there's
    reason to believe he's violated his parole. All
    right. And that is not reasonable doubt. It's, he
    could be violated, and I understand, I may be
    wrong, if he's within 10 feet of PCP, that's a
    violation in and of itself. But anyway Morrissey
    says you have to make two determinations. Says —
    whether it's reasonably violated and if he had
    violated, then you have to decide ...

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