ARIK ADANI SIMS, APPELLANT, v. UNITED STATES, APPELLEE.
No. 15-CF-914
DISTRICT OF COLUMBIA COURT OF APPEALS
August 15, 2019
Appeal from the Superior Court of the District of Columbia (CF1-17480-12) (Hon. Robert E. Morin, Trial Judge) (Argued November 16, 2017 Decided August 15, 2019)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Gabriel Diaz, Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.
Giovanni B. Di Maggio, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Kimberley Nielsen, and Jin
Before EASTERLY and MCLEESE, Associate Judges, and FERREN, Senior Judge.
EASTERLY, Associate Judge: Our judicial system has a strong preference for live, sworn witness testimony. We want factfinders to hear from witnesses with personal knowledge of the facts and we want those witnesses to be subject to cross-examination, one of “the greatest legal engine[s] ever invented for the discovery of truth.” 5 WIGMORE, EVIDENCE § 1367 (J. Chadbourn rev. 1974). Thus, our default remains a rule against hearsay—an out-of-court statement offered for the truth of the matter asserted1—and, although we authorize its admission in certain, defined circumstances, we resist expansive interpretations of hearsay exceptions that would permit them to overtake the rule. In this case, we hold that two hearsay statements were erroneously admitted: one as a present sense impression, the other as an adoptive admission. Because we cannot say with fair assurance that the jury‘s verdict was not substantially influenced by the cumulative impact of these erroneously admitted hearsay statements, we reverse.
I. Facts and Procedural History
In the early hours of September 30, 2012, police responded to reports of gunshots at a multi-unit apartment complex named the “Sheperd Building,” located at 7436 Georgia Ave., Northwest. The police arrived at the scene to find Lamar Fonville on the sidewalk near the front, right corner of the building, bleeding from two gunshot wounds, one to his head, the other to his left forearm. Moments later, he was dead. Arik Sims was charged with his murder.
At trial, the government presented evidence that, in the hours before the shooting, Houston Brown hosted a “stripper party” in his apartment on the second floor of the Sheperd Building. By 2:00 a.m., the entertainment had ended and the remaining guests, as many as 20–30 people, had moved outside to get some air. Among them were Mr. Fonville, government witness Leslie Isaac, and, according to Mr. Isaac, Mr. Sims.
Mr. Isaac, 61 years old at the time of trial, was the government‘s sole eyewitness to the shooting to testify at trial. He attended the party, and after about three or four hours, he and Mr. Fonville ended up sitting outside on a set of steps that connect Georgia Avenue to a paved walkway between the Sheperd Building and the neighboring apartment complex. Mr. Isaac was “feeling pretty good,” having had “about four” beers. Mr. Sims joined them and they all had a “pleasing conversation.” After “five to ten minutes[,] [o]r maybe more,” Mr. Sims walked away; he returned ten to fifteen minutes later and the three men resumed talking, “laughing and joking.” At this point, Mr. Sims loudly exclaimed, “look at that girl.” Mr. Isaac and Mr. Fonville looked in the direction Mr. Sims had indicated.2 Mr. Sims then pulled a gun from his waistband,3 shot Mr. Fonville
Mr. Isaac was questioned by the police in the early morning hours after the shooting. He initially told them that he had not seen anything. But his story changed during the course of his interview, which he said lasted “all night long.” By the time the interview ended, he claimed that he had seen the shooting and that he had seen the shooter once before. He said he did not know the shooter‘s name but had been told by Mr. Fonville that his name was Arik. By the time of trial, Mr. Isaac‘s story had evolved further: He claimed that he had a long-standing friendship with Mr. Sims, who was almost four decades his junior, dating back to the summer of 2011 when Mr. Sims visited his apartment daily to play video games with Mr. Fonville, but this testimony was discredited.4
Government witness Jawanza Setepenra was also at the scene that night but did not see the shooting. He testified that he, Mr. Sims, and Devin Myers had been drinking vodka at Mr. Myers‘s house and drove to the party together. They arrived late. He was unable to give a precise time, but he thought it was “close to midnight.” They parked outside the Sheperd Building. Mr. Setepenra, who by this time was intoxicated, left Mr. Sims and Mr. Myers outside and went up to Mr. Brown‘s apartment. There was one other man there. Mr. Setepenra did not know him, but they chatted and watched television together. Mr. Setepenra estimated that he had been inside between twenty to forty-five minutes when he heard gunfire.5 The other man ran out of the apartment. Mr. Setepenra “paused for a minute” and then, with some additional stops and starts, see infra note 12, proceeded downstairs.
Once out on the street, Mr. Setepenra saw three men (including his television-watching companion), all in their early to mid-twenties, standing near Mr. Fonville‘s body. He did not see Mr. Sims or the car they had driven to the party. During the next eight minutes, Mr. Setepenra called 911 three times to assist Mr. Fonville, who was still breathing. He explained that he made multiple calls because it seemed like the operator “didn‘t comprehend what [he] was saying, so [he] hung up” and called back.
Overruling an objection by defense counsel, the court allowed the government to ask Mr. Setepenra if he heard someone “state the description of the person who made this happen.” Mr. Setepenra testified that, while he was on the phone trying to speak to 911, “[s]omeone said it was the fat-face, light-skinned dude.” The government then asked if he “hear[d] this person also state a name attached to that description“; he testified, “Yes[,] . . . Arik.” It is
Government witness Geoffrey Adams, a friend of Mr. Sims since childhood, also did not see the shooting (he had been at work), but he was living with Mr. Sims and Mr. Sims‘s mother in their home at the time of Mr. Fonville‘s death. Mr. Adams testified that, after homicide detectives interviewed Mr. Sims, he met Mr. Sims at the house at Mr. Sims‘s request. Mr. Sims‘s friend Devin Myers was also present at this meeting. According to Mr. Adams, during this meeting, Mr. Sims confessed to shooting Mr. Fonville6 and asked Mr. Adams to provide him with an alibi.7 Mr. Adams testified that, during this conversation, Mr. Myers interjected that Mr. Sims had dropped the gun‘s magazine, or clip, as he fled the scene and had to run back to pick it up before getting into a waiting car. At trial, Mr. Adams could not remember Mr. Sims‘s reaction to Mr. Myers‘s alleged statement.8
In addition to the directly inculpatory evidence from this trio of witnesses—Mr. Isaac, Mr. Setepenra, and Mr. Adams—the government presented circumstantial evidence. Most notably, it offered testimony from the medical examiner and physical evidence recovered from the crime scene, including shell casings and unfired bullets—which could have fallen out of a dropped gun or magazine—none of which directly tied Mr. Sims to the crime.
Mr. Sims testified in his own defense. Although he admitted he had been at the party, he asserted that he returned home around 12:30 a.m. to give tattoos to a few individuals and to give his mother a dose of her medicine (an injection), which she was required to take nightly at 2:00 a.m. One of his customers and his mother testified for Mr. Sims and generally corroborated this story. In addition, Mr. Sims called as witnesses three individuals who were at the Sheperd Building at the time of the shooting, all of whom testified that the shooter‘s height, weight, and hairstyle did not match Mr. Sims.
The jury found Mr. Sims guilty on all counts. This appeal followed.
A. Admission of Hearsay as a Present Sense Impression
Mr. Sims first argues that the trial court reversibly erred in permitting the government to put into evidence, through Mr. Setepenra‘s testimony, the hearsay statement made by an unknown declarant, “it was the fat-face, light-skinned dude[,] . . . Arik,” as a present sense impression. When confronted with a hearsay statement, a trial court “has the legal responsibility to examine the testimony and determine whether [a] proper foundation has been laid” to admit the testimony under an exception to the rule against hearsay. Mayhand v. United States, 127 A.3d 1198, 1205 (D.C. 2015) (internal quotation marks omitted). “We commit this decision to the trial court‘s exercise of sound judicial discretion,” id. (internal quotation marks omitted), which, as we explained in Mayhand, means “we review the trial court‘s fact-finding for clear error, and we review the court‘s determination that these facts permit admission of a statement under the [asserted hearsay] exception for abuse of discretion.” Id. “Obviously, whether the trial court adheres to the test for the admission of hearsay under [an] exception is a legal question and the trial court abuses its discretion when it rests its conclusions on incorrect legal standards.” Id. (internal quotation marks omitted).
This court recognized the admissibility of certain hearsay statements under the present sense impression exception in Hallums v. United States, 841 A.2d 1270, 1276 (D.C. 2004) (authorizing the admission of a hearsay statement “describing or explaining events which the declarant is observing at the time he or she makes the declaration or immediately thereafter“). We stressed that, to qualify for admission as a present sense impression, proof that the statement was made “contemporaneously with the events described” would be essential because this is a foundational justification for the reliability of hearsay proffered under this exception. Id. at 1277–78; see also id. at 1277 (noting that “[t]he classic present sense impression relates contemporaneous events or conditions as they are perceived by the observer‘s senses“); accord United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009) (explaining that “[t]he fundamental premise behind this hearsay exception is that substantial contemporaneity of event and statement minimizes unreliability” and thus that “the time requirement . . . is strict“) (internal quotation marks omitted).9 We further stressed “that care must be taken to ensure that this exception is not used to admit statements that circumstances reveal were not truly spontaneous, but instead involved conscious reflection[,] . . . recall from memory,” or even “intentional deception“—again to ensure reliability. Hallums, 841 A.2d at 1277 (internal quotation marks omitted).
In addition to contemporaneity and spontaneity, we made clear that a trial court must be assured that the declarant of the hearsay statement personally perceived the event described. Id. at 1276 (defining a present sense impression as a “statement[] describing or explaining events which the declarant is observing at the time he or she makes the declaration or immediately thereafter” (emphasis added)); see also Bemis v. Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995) (explaining that,
The proponent of proffered hearsay bears the burden of justifying its admission under a specific exception to the rule against hearsay. Gabramadhin v. United States, 137 A.3d 178, 187 (D.C. 2016). In the context of the excited utterance exception, we have said that the burden of proof is a preponderance of the evidence. United States v. Woodfolk, 656 A.2d 1145, 1150 n.14 (D.C. 1995); accord Miller, 754 F.2d at 511. The parties both argue that the same burden of proof applies for the admission of hearsay under the present sense impression exception. In light of the common origin of the present sense impression and excited utterance hearsay exceptions,10 we agree and now hold that all requirements of the present sense impression exception to the rule against hearsay must be established by a preponderance of the evidence. See Woodfolk, 656 A.2d at 1150 n.14 (noting that “[p]reponderance of the evidence is the most commonly accepted standard in determining the admissibility of evidence” (citing 1 MCCORMICK ON EVIDENCE § 53 n.8 (4th ed. 1992))); see also Bemis, 45 F.3d at 1373 (explaining that personal perception for present sense impression must be established by a preponderance of the evidence).
Our inquiry is fact-specific. Cf. Simmons v. United States, 945 A.2d 1183, 1187 (D.C. 2008). Here, the government proffered that an unidentified declarant said, “it was the fat-face, light-skinned dude[,] . . . Arik,” “[m]aybe a minute or seconds” after the shooting and inferably was providing an eyewitness description of “the person who shot the victim.” But the government‘s evidence did not substantiate its proffer. In particular, neither the testimony of Mr. Setepenra nor any other government witness established by a preponderance of the evidence that the unidentified declarant had seen the shooting and spoke from personal knowledge.11 See id. at 1188 (acknowledging that “the burden of demonstrating the declarant‘s personal knowledge of the event . . . naturally becomes more difficult to meet when the declarant is unknown“); Gainer v. Wal-Mart Stores E., L.P., 933 F. Supp. 2d 920, 929–30 (E.D. Mich. 2013) (internal quotation marks omitted) (observing courts are “hesitant” to admit the hearsay statements of unidentified declarants that “can neither be substantiated nor attacked“).
There is no direct evidence in the record that the unidentified declarant saw the shooting. Mr. Setepenra did not know if this was the case because he himself was not present. The shooting occurred while Mr. Setepenra was watching television in Mr. Brown‘s second-floor apartment, and some amount of time passed before he was outside and in a position to hear the proffered hearsay statement.12 Conversely, the government‘s only eyewitness was not there when Mr. Setepenra emerged from Mr. Brown‘s apartment and thus similarly had no way of knowing if the unidentified declarant saw the shooting.
The record lacks not only any direct evidence that the declarant spoke from personal knowledge, but also sufficient circumstantial evidence from which it reasonably could be inferred that the unknown declarant more likely than not witnessed the shooting. Cf. Miller, 754 F.2d at 511 (acknowledging that “[d]irect proof of perception, or proof that forecloses all speculation is not required” to satisfy the personal knowledge requirement for the admission of an excited utterance).
The government argues that in this case “[t]he declarant‘s proximity to the site of the shooting supports the inference that the declarant had been there when the shooting occurred.” Although “proximity to the scene at the time of the incident” may “provide[] some circumstantial evidence of firsthand knowledge,” Bemis, 45 F.3d at 1373, Mr. Sims is correct to caution that “[a]n unidentified declarant making a purported present-sense impression . . . will, almost by definition, be present at the scene of the event in its aftermath.” Thus, the weight reasonably attributed to evidence of physical proximity must depend
Uncertainty as to when the statement was made further diminishes our ability to infer the declarant had personal knowledge based on the declarant‘s supposed proximity to the scene of the shooting. The government argues that the “very short lapse of time [which] left little opportunity for rumors to spread” supports a “fair” inference “that someone who identified the shooter had actually seen the shooting.” But based on this record, we cannot agree. Although it is not altogether clear how much time elapsed between the time of the shooting and the time of the hearsay declaration, see supra note 12, manifestly there was ample time for people to move about and communicate. As noted above, both Mr. Setepenra and his television-watching companion had time to travel from Mr. Brown‘s second-floor apartment to the scene before the declarant spoke, but neither were eyewitnesses to the shooting.16 Mr. Setepenra himself was seeking secondhand information from others as to “what happened.” Under the circumstances, where multiple gunshots were fired at a party that had spilled out on the street and a wounded man lay on the ground, we think it unreasonable to assume that no one else was making similar inquiries and sharing information in this same window of time.
Lastly, the government looks to the wording of the statement itself—“it was the fat-face, light-skinned dude[,] . . . Arik“—and highlights that the declarant did not preface his statement with “I heard.” Although the substance of a proffered hearsay statement may inform our assessment of its admissibility under a hearsay exception, see Jenkins v. United States, 80 A.3d 978, 996 n.45 (D.C. 2013), it does not do so in this case. Preliminarily,
In the absence of sufficient evidence to support a determination that the declarant possessed personal knowledge, the hearsay statement in question did not satisfy our test for a present sense impression and should not have been admitted
into evidence.19 Cf. Ginyard, 816 A.2d at 40 (confirming the hearsay statement was properly excluded where there was no evidence that the declarant had personal knowledge of the subject of the statement). To the extent the government suggests that it was nonetheless admissible as a present sense impression because “other, independent evidence showed that the statement was reliable,” we disagree. The government
requirement as an “additional safeguard[]” to ensure the reliability of a hearsay statement. 841 A.2d at 1278 (alteration in original) (emphasis added) (citation omitted). We ultimately declined to “resolve whether to adopt any particular safeguards for evaluating the admissibility of present sense impressions” in this jurisdiction. Id. at 1279. But we gave no indication that the newly announced criteria for admission of hearsay as a present impression could simply be bypassed if the movant supplied adequate corroborating evidence of the substance of the statement.20
In any event, we are unpersuaded that there was other evidence in the record showing the reliability of the declarant‘s statement. The government highlights “independent testimony by [Mr.] Setepenra indicating that appellant was still in the area” at the time of the shooting, referring to his testimony that “[as] soon as [the shooting] happened, I knew that Devin [Myers] and Arik [Sims] was still outside.”
But Mr. Setepenra had no foundation for his purported knowledge of Mr. Sims‘s whereabouts. By this time, Mr. Setepenra had been up in Mr. Brown‘s apartment—by his own estimate for twenty to forty minutes, and likely much longer, see supra note 5—and he had no way of knowing whether Mr. Sims was still outside or whether he had left the party (as Mr. Sims testified he did).21
III. B. Admission of Hearsay as an Adoptive Admission
Mr. Sims also challenges the government‘s reliance at trial on Mr. Adams‘s testimony recounting an out-of-court statement by Mr. Myers detailing Mr. Sims‘s actions just after the shooting. Mr. Sims argues that this hearsay statement was improperly admitted as an adoptive admission. Because Mr. Sims did not object to the statement at trial, we review for plain error. See, e.g., Comford v. United States, 947 A.2d 1181, 1189 (D.C. 2008)
“Testimony that an accused adopted statements of another person as his own may be admitted in evidence as an exception to the hearsay rule if it clearly appears that the accused understood and unambiguously assented to the statements.” Foreman v. United States, 792 A.2d 1043, 1052 (D.C. 2002) (internal quotation marks omitted). To constitute an adoptive admission, “the statement must be made in the defendant‘s presence and hearing, . . . the defendant must actually understand what was said and have an opportunity to deny it,” id. (internal quotation marks omitted), and the statement must “contain[] assertions of fact which, if untrue, the party would under all the circumstances naturally be expected to deny,” Comford, 947 A.2d at 1185 (internal quotation marks omitted).
Although Mr. Adams testified that Mr. Myers‘s hearsay statement—recounting how Mr. Sims dropped the magazine of his gun as he fled the scene of the shooting and had to run back to retrieve it—was made in Mr. Sims‘s presence, the government presented no evidence that Mr. Sims heard and understood the statement and had the opportunity to deny it. And as the government candidly acknowledges, “[t]he real problem is that [Mr.] Adams could not recall how [Mr. Sims] responded to [Mr.] Myers‘s assertion about the magazine.” Thus, the government does not contest Mr. Sims‘s assertions of error, or the plainness thereof, on appeal. See Comford, 947 A.2d at 1189 (identifying these as the first two prongs of the test for plain error). Instead, it argues that Mr. Sims cannot show that this error affected his substantial rights or that it “seriously affected the fairness, integrity or public reputation of the judicial proceeding.” Id. at 1190 (identifying these as the third and fourth prongs of the test for plain error). It is unnecessary for us to assess whether this single claim of unpreserved error would necessitate reversal under our test for plain error, however, we conclude that the aggregate harm of the erroneous admission of both this hearsay statement as an adoptive admission and the other hearsay statement as a present sense impression, see supra Part II.A, requires reversal. See infra Part III.
III. Harm
The remaining question is whether the erroneous admission of the hearsay statements discussed above—both nonconstitutional in nature—requires reversal. Generally, a nonconstitutional error is harmless if we can “say with fair assurance” that the error did not substantially sway the judgment. Gabramadhin, 137 A.3d at 185 (brackets omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). “The standard for reversal where more than one error is asserted on appeal is whether the cumulative impact of the errors substantially influenced the jury‘s verdict.” Smith v. United States, 26 A.3d 248, 264 (D.C. 2011); id. at 265 n.12 (internal quotation marks omitted) (explaining that, when reviewing the cumulative impact of multiple errors, including unpreserved ones, the standard is Kotteakos, not plain error); see also In re C.A., 186 A.3d 118, 126 (D.C. 2018) (“In assessing harm, we examine the trial court‘s two erroneous evidentiary rulings together.“).
In this case we are unable to “say with fair assurance” that the erroneous admission
A drug user for decades, with eleven prior convictions and two pending cases, Mr. Isaac was paid $40 for each meeting he had with the prosecution at a time when he was experiencing homelessness. Moreover, Mr. Isaac‘s evolving narrative of events became markedly more inculpatory, and detailed, over time. Mr. Isaac first told police he had not seen who shot Mr. Fonville. After being interviewed by the police for hours, he later said that he had seen the shooting but that he did not know the identity of the shooter. In the end, Mr. Isaac testified at trial that he was an arms-length away from Mr. Sims when Mr. Sims shot Mr. Fonville and that he had known Mr. Sims for years. (He claimed to have hosted Mr. Sims, almost four decades his junior, on multiple occasions in his apartment, including during times when either he or Mr. Sims were outside the District.). His trial testimony also contained never-before-mentioned embellishments. For example, he testified that Mr. Sims exclaimed as a diversion, “look at that girl,” just before the shooting, and he impossibly asserted both that he had not turned his gaze back to Mr. Sims and Mr. Fonville until Mr. Sims had the gun pointed at Mr. Fonville‘s head and that he had seen and felt Mr. Sims draw the gun from his waistband, see supra note 3.
Even Mr. Isaac‘s explanation about the inconsistency of his narrative was inconsistent. At times, he appeared to acknowledge that, to the extent his memory appeared to improve with time, his account of the incident had been influenced by the questions that the police and prosecutors asked him. For example, he noted, “sometimes, you could remember certain things by more questions people ask.”22 At other times he maintained that his memory had not improved and that “[i]f I tell you I don‘t remember, I don‘t remember,” even though he had told the Grand Jury that he did not remember certain details that he then purported to remember at trial almost two years later. See supra note 2.
Consequently, much of the government‘s case and summation focused on bolstering Mr. Isaac‘s credibility. The erroneously admitted hearsay was key to this effort.
Similarly, the hearsay statement introduced through Mr. Adams—Mr. Myers‘s narration of Mr. Sims‘s post-shooting acts of dropping the gun‘s magazine and running back to retrieve it—allowed the government to effectively introduce another eyewitness to corroborate Mr. Isaac‘s account of Mr. Sims‘s flight from the scene. The government argued to the jury, “you heard Devin [Myers] in that conversation describing about how Mr. Sims dropped the gun and had to go back to pick it up. Just like how Mr. Isaac saw it that evening” (emphasis added).23 And whereas Mr. Myers, who was allegedly in the getaway car with Mr. Sims, likely would have been subject to withering cross-examination had he not exercised his Fifth Amendment privilege against self-incrimination, Mr. Adams, a father of two who works with at-risk youth, helped care for his best friend‘s ailing mother and testified in his National Guard uniform, was a much stronger conduit for Mr. Myers‘s statement.
The government nonetheless urges us to affirm, pointing us to other evidence in the case—in particular, the physical evidence, Mr. Sims‘s admission that he asked two people for alibis, and Mr. Sims‘s alleged confession to Mr. Adams. Although this carries the government over the sufficiency threshold, our inquiry “turns not on whether the other evidence presented at trial would be sufficient to establish guilt, but rather on whether it is ‘highly probable’ that the error[s] at issue did not contribute to the verdict,” Gabramadhin, 137 A.3d at 185. Further, our focus is on the “combined effect [of these errors] against the strength of the prosecution‘s case.” Smith, 26 A.3d at 264 (internal quotation marks omitted); see also Andrews v. United States, 922 A.2d 449, 459 (D.C. 2007) (explaining that, when assessing harm under Kotteakos, we look to the centrality of the error, the strength of the government‘s case, and any mitigation of the error).
None of the evidence to which the government directs our attention convinces us that it is “highly probable” that the erroneously admitted hearsay was immaterial to the jury‘s assessment of Mr. Sims‘s guilt. The physical evidence did not tie Mr. Sims to the murder weapon or place him at the scene of the crime. Mr. Sims‘s request for alibis was undoubtedly subject to a negative inference, but it was not without
Mr. Adams‘s testimony about Mr. Sims‘s alleged confession is perhaps the strongest evidence for the government, yet even that was subject to question. Critically, Mr. Adams‘s account that Mr. Sims told him that he “dapped Lamar up,” admonished him—“really, my mom‘s house, really“—and then immediately shot him, see supra note 6, did not align with Mr. Isaac‘s account of the shooting: that Mr. Sims conversed with him and Mr. Fonville for five to ten minutes, walked away for ten to fifteen minutes, returned to resume their friendly conversation, and then exclaimed, “look at that girl” just before shooting Mr. Fonville. Mr. Adams‘s testimony that Mr. Sims told him “he emptied the clip” was also inconsistent with the government‘s theory that the two unfired bullets it recovered from the sidewalk were from the gun or magazine that Mr. Sims dropped during his escape. Moreover, there was reason for the jury to believe that Mr. Adams felt pressured to conform his narrative to the government‘s theory of Mr. Sims‘s guilt. Mr. Adams was subject to a deferred sentencing agreement in connection with an assault charge; and, as the jury heard in a recording of the interrogation of Mr. Sims by the police, the lead detective told Mr. Sims that he would “f[—]k [Mr. Adams] up. . . . [and] ruin his career” with the National Guard if Mr. Adams did not cooperate with the investigation.
In short, when we examine all the evidence the government presented at trial, we cannot say the erroneously admitted hearsay was harmless. For the reasons set forth above, we reverse Mr. Sims‘s convictions and remand the case for further proceedings.
So ordered.