*1 complaint Tillio’s could be construed as
something appeal other than an of a state order,
court Radnor contended that subject juris-
District Court lacked matter complaint diction because the raised no UNITED STATES America question. Finally, federal Radnor argued that, to the extent the District Court had HUGH, Appellant. Nolan jurisdiction, complaint failed to state claim upon granted which relief could be No. 05-4260. Tillio
because has no constitutional right to Court Appeals, States allegedly inaccurate criminal rec- Third Circuit. expunged. ord 17, Jan. Argued 2007. agreed District Court and dismissed and, June complaint jurisdiction Filed 2007. for lack alternative, failure to make out July 18, As Amended federal claim. jurisdiction pursuant We have to 28 §
U.S.C. 1291. Our review of the District
Court’s complaint dismissal-of the for lack jurisdiction and for failure to state
claim is plenary. See re Kaiser Group Inc., (3d
Intern. Cir.
2005) Fauver, (jurisdiction); Nami v. Cir.1996) (failure state
claim). will affirm for substantially We
the same forth in reasons set the District opinion. agree
We with the District Court that Complaint
Tillio’s fails state a claim
upon may granted. relief
Complaint no allegations contains factual
against the Police. But Radnor even if it
did, we the Complaint, conclude that taken true, allege does not the violation of a right.
Constitutional affirm
Accordingly, judgment we will District Court. *2 came first
for a bill when he $5 cross-examination, defense store. On police a “In- two-page her counsel showed had to the Interview” she vestigation robbery and asked day of the police say she could if not there she did why Hugh had first come to remember acknowledged con- store. The witness interview, which two-page flict. The investigat- questions from response to Meehan, L. Patrick United States Attor- of the en- ing provided an account officer Zauzmer, Shapiro, ney, Robert A. Paul G. been marked robbery episode, tire had Attorneys, A. Jennifer Assistant U.S. for Exhibit D-l-A identifica- Defendant’s PA, for (Argued), Philadelphia, Williams (hereafter “D-l-A”).1 Its contents tion Appellee. to earlier in had been referred Rowley, Maureen K. Chief Federal De- Although investigating officer trial. fender, McColgin, David L. Assistant Fed- de- response questions testified Defender, Epstein (Argued), Robert eral report that he a prepared fense counsel Defender, Philadelphia, Assistant Federal interview, report of that the contents PA, Appellant. subsequently referred to in the were not into testimony. D-l-A was never offered McKEE, and BEFORE: AMBRO evidence. STAPLETON, Judges. Circuit During closing argument, defense counsel, arguing that the in the course of THE OF OPINION COURT spread unduly photo suggestive, had been STAPLETON, Judge: Circuit jury that the teller in her informed the Appellant Hugh Nolan convicted day robbery had on the interview jury conspiracy a to interfere with inter- described the second robber by robbery, state commerce interference type “Muslim beard.” robbery, with interstate commerce and charge the Court’s Following using gun during a crime of violence. jury, that D-l-A defense counsel asked impris- He was sentenced to 180 months of and another document be sent out to onment, and appeal followed. We will jury. government room with affirm. they not been moved pointed out that had cashing The teller at the check store been, that, they into if had by two testified for that was robbed men objected government direct, gave government. On she hearsay. The Court their admission robbery itself and detailed account of declined to send the exhibits out with the Hugh subsequent of her identification jury, “[T]hey into stating: were not moved photo spread as the “second rob- police they go App. will not out.” evidence. So stopped ber”—the robber who at 528. reappeared he dur- store two hours before said, among After the retired the Court robbery. She recess, from a it further ex- change had asked for returned things, page it for will be referred to herein The second of the record of inter- identification Exhibit D-l-B view marked Defendant’s as "D-l-A.” However, the entire exhib- for identification. Hason, plained why to defense counsel D-l-A was it’s not substantive evidence not be hearsay: will admitted. App. 530-31. D-l-A,
The other document is *3 Investigation reaffirming is After its the called an Interview Rec- May '03, statement was not admissible as “substan- ord dated is a which series evidence,” tive the added that “even Hason, Court questions Alyia of and put to her I point, if it’s somehow admissible at this answers, typed up by which were the by out sending think to the signed by detective and Hason. Ms. give weight undue to that statement.” course, That, of was a statement made at 532. App. witness, by a other than testifying while here at or hearing. the trial This does some point during At the discus- not exception come within the set forth counsel, of this sion issue with the (d) ], in rule which defines state- 801[ a note to requesting sent the Court hearsay. ments which are not And provided copy be with a of D-l-A and prior while under certain circumstances police investigation report robbery. may statements of witnesses be admit- responded: The Court record, ted into the and are deemed not jury, Members of the under rules our hearsay, does not document evidence, of not be send will able to come within forth in the definitions set those out and you, statements with (d)(1)].2 801[ just you’re going have to remember testimony given during that was the all, it First of doesn’t within rule come trial, and of course demonstrative (d)(1)(A)], given since it un- 801[ is not you you. exhibits have. Thank der oath. It does not within the come (d)(1)(B) App. 532-33. 801[ definition of because it’s ] being not as a offered statement consis- us, Hugh Before insists that the District testimony, tent with the declarant’s and by reopen- Court abused its discretion it is not express offered rebut an or evidence, D-l-A, admitting implied against of charge the declarant sending jury. it out to the We find no recent fabrication or influence improper abuse.
or motive. First, indicates, foregoing as the account again,
And
neither of these documents
offer D-l-A
the defense failed to
into evi-
any exception
comes within
of the hear-
and did not
an
provide
dence
excuse
therefore,
say
again,
result,
rule.
while this
doing
So
so. As a
with
minor
one
memory
document
used for
of
impeachment
exception regarding
the teller’s
purposes during
of
initial
pretext
the examination Ms.
for the second robber’s
statement,
801(c)
(A)
2. Federal
of Evidence
and the
inconsis-
Rules
statement
801(d)(1) provide as follows:
testimony,
with the
tent
declarant's
statement,
(c)
"Hearsay”
subject
Hearsay.
penalty
under oath
trial,
other than one made
while
hearing,
declarant
perjury
proceed-
at a
or other
testifying
hearing,
trial or
offered in
(B)
ing,
deposition,
or in a
or
consistent
prove
evidence to
the truth
the matter
of-
declarant's
and is
asserted.
express
implied charge
rebut
or
fered to
(d)
hearsay.
which
A
Statements
are not
against
the declarant
recent fabrication
hearsay
is not
if—
motive,
(C)
improper
or
one
influence
or
(1)
The de-
Prior statement
witness.
person
identification of
made after
hearing
clarant
at the trial or
and is
testifies
perceiving
person;
subject
concerning
cross-examination
(3d Cir.2000));
Kithcart,
213, 219
significance of the con
appearance,
Wilcox,
page
two
document was
F.2d at 1143-44. Under
tents
government
case,
had no
something that
of this
where the de-
circumstances
ex
through
occasion
address
failing move
no excuse for
fense offered
hibits,
closing.
or comments
prosecu-
into evidence and
the exhibit
court,
In a letter to the
the defense calls
it,3 we
tion
no occasion to address
attention
several cases
which
our
court
that the district
abused
say
cannot
courts of
have affirmed
deci
appeals
it at
late
admitting
discretion
of a district court to
record
sion
stage at
it was offered.
parties had
in a case after both
rested.
Second,
no error
perceive
we
*4
Boone,
829,
v.
F.3d
See United States
437
in-
D-l-A was
District
McGrath,
(8th Cir.2006); Duong
837
v.
128
fi-
hearsay.
the defense
admissible
When
(9th Cir.2005)
32,
(non-preee
Fed.Appx.
34
nally
the Court’s attention on its
focused
dential); United States v. Ramirez-Gon
jury,
D-l-A to the
at no
get
desire to
(3d Cir.2004)
zales,
369,
Fed.Appx.
116
372
it
than the entire ex-
point did
offer less
v.
(non-precedential);
Moji
United States
point
it refer the Court
hibit and at no
did
ca-Baez,
292,
(1st Cir.2000);
229 F.3d
300
it
rules of evidence
now relies
two
Wilcox,
1131,
v.
450 F.2d
United States
admissibility.
upon
D-l-A’s
(5th
support
Cir.1971);
1144
States v.
United
Schartner,
470,
(3d
it is clear from
Cir.1970);
important
This
because
426 F.2d
475
Duran,
275,
v.
411 F.2d
277
understood the
United States
the record
Court
(5th Cir.1969)
cases,
In none of those
how
entire
seeking
get
defense to be
ever,
appeals grant
did the court of
what
jury.
From this
statement before
Hugh asks from this court—a decision re
it is clear
perspective,
grant-
both
versing
district court’s decision not to
request
have involved
ing of this
a
reopen
good
There is
reason for
case.
and that
hearsay
the admission of
neither
precedents
this. Our
those of
cited rules were relevant.
now
courts of
those that
appeals including
—
two-page
D-l-A consists of a detective’s
Hugh
consistently
cites to us—have
held
account what he understood
teller
enjoys
district court
broad discre
her
her
saying
questioned
as he
about
regarding
tion
whether to
rec
experience
day
robbery.
It
on
Boone,
836;
ord.
437 F.3d at
United
clearly hearsay
defined in Fed.
Coward,
176,
v.
296
180
States
F.3d
801(c)
clearly
R.Evid.
does not come
Cir.2002) (drawing an analogy between re
any
exceptions
within
of the three
carved
opening
parties
trial record after the
(B)
(C).
801(d)(1)(A),
out
Rules
As
have rested and
the record
reopening
observed,
D-l-A did
District Court
remand);
suppression hearing
United
(A)
scope
because
come within
735,
Blankenship,
v.
F.2d
741
States
775
(B)
under oath or
because
(6th
Wilcox,
1143;
Cir.1985);
F.2d at
450
as a
consistent state-
prior
offered
Duran,
5. Federal provides: Rule of Evidence 612 discretion determines that the interests of Except provided as otherwise in criminal justice require, declaring so a mistrial. 18, proceedings by section 3500 of title Code, United States if a witness prosecutor uses 6. The record gave reflects that the writing memory purpose refresh for the the witness documents to review and that she testifying, them, either— read “not all of but ... a few on Thurs- (1) testifying, while or day.” App. at 216. The teller's statement (2) testifying, before if the thought court in its paper you that she she reviewed "the discretion necessary just determines it is yesterday morning,” App. had here ... at 217, justice, the interests of may may abe reference to D-l-A. party adverse is entitled to have the Because it was never referred to Rule writing produced however, hearing, at the inspect the District Court had no occasion it, thereon, to cross-examine the witness to determine whether the witness did or did and to portions introduce in evidence those not refresh her recollection with D-l-A be- testimony which relate to the of the witness. fore trial. description from of the teller’s provides for the introduction dence Rule 612 memory from the detective who -writing prior used to refresh teller and offered for this trial at the court’s discretion because D-l-A when testified. in a writ- suggestion embodied “power however, hearsay. purpose, memory,” can create a false ing the District Having concluded may distinguish witness “unable in find- its discretion Court did abuse perception.” that based on actual as of- when and inadmissible Gold, Alan & Victor Wright Charles James it, unnecessary to ad- we find it fered to § Practice Procedure Federal & challenge to the District dress (1993). con- Accordingly, right 443-44 ruling that if D-l-A were admissi- “ by Rule ‘to in evi- ferred introduce given not be ble it should nevertheless portions dence those which relate potential for it jury because of simply of the means witness’ weight. undue being writing ques- may be admitted on the judgment of the District Court will credibility and is not tion witness’ be affirmed.7 made thereby pur- admissible If poses. purpose, offered for some other AMBRO, Judge, dissenting. Circuit applicable, rules different would be such single men robbed a store. The Two hearsay and use of regulating those Hasan, Alyia gave police Z. eyewitness, § 28 id. copies.” 455-56. which she described one Had the District Court been referred “nice hair” and the robbers why being Rule 612 advised of it was Attempting to de- “Muslim-type beard.” offered, application the denial of the *6 robber, identity the of this the termine have been an D- abuse discretion. police presented photo- later Hasan with a not being 1-A was offered to show that “line-up” appeared that to include graphic the anything teller had testified to had fitting the only two or three individuals by her her rec- refreshing been influenced trial, description gave. she earlier At description ollection the of the second in sugges- largely based deficiencies the Rather, it was as being robber. offered line-up, vigorously defense counsel tive evidence,” in “substantive the Court’s defendant, Nolan challenged whether the words, i.e., offered for the truth of the — By one the robbers. mis- Hugh, was report detective’s described teller take, descrip- the form on which Hasan’s the second a “Muslim robber recorded, marked tion of the robbers was If the argue, beard.” defense wished to D-l-A, in was not introduced as exhibit closing, did in police counsel evidence; however, extensively it was ref- spread only photo structured so objection— erenced —without Government fit the description one individual would closing teller, during argument. defense counsel’s by the defense had a opportunity competent jury full to secure evi- after the retired deliberate Soon suggests asking Appellant’s $5.00 the first remembers for in brief for now he gone jury change. Even this time that D-l-A should have if the defense had cited 613(b) only single authority pertaining Rule and offered sentence of under the rule D-l-A, i.e., prior admissibility "I don't remember what he asked to conditions for check,” for, only he cash a we would inconsistent statements. referenced but didn’t declining reopen the rec- inconsistent statement in D-l-A is the teller’s find no abuse matter, inconsequential par- pre- for such an she did not remember ord ticularly acknowledged the since the teller text for second robber's initial visit she is said to conflict with her conflict. 802 1977) Oleson, (same); physical Ry. evidence was assembled Mo. Pac. v.Co. review, parties (8th Cir.1914)
for
discovered the
(same);
F.
213
329
Alaska
might expect,
error. As
coun-
one
defense
v.
Mining
Keating,
United Gold
Co.
116 F.
reopen
sel moved to
the record so that
(9th Cir.1902) (same);
561
Commercial
exhibit D-l-A could be introduced in evi-
Fulton,
Travelers’ Mut.
v.
Acc. Ass’n
93 F.
dence and
to the jury.
sent
The District
(2d Cir.1899) (same).
task,
Our
motion,
Court denied the
that ad-
ruling
therefore, is to determine whether
Dis-
mitting it
jury
give
would invite the
trict Court abused its discretion in refus-
weight.” During deliberations,
“undue
ing
Hugh
allow
to do so in the context
requested
specifically
to see exhibit of this case.
v.
Anzano Metro.
Ins.
Life
D-l-A, but
District
Court refused.
Co.,
Cir.1941).
And
believe that
By
reversible error.
though the
fail-
majority
chides
otherwise,
and with citation to al-
to cite
ing
“grant[ed]
cases that
[he]
what
law,
most
none of the relevant
from this
asks
decision revers-
[C]ourt—a
makes abuse-of-discretion review tanta-
[District
decision
[C]ourt’s
mount to no
I respectfully
review all.
case,”
Op.
Maj.
799 (emphasis
dissent.
original),
it is clear that such
do
cases
exist, see,
Parker,
e.g., United States v.
Legal
I. The
Framework
(5th Cir.1996),
F.3d 48
reh’g
vacated and
Despite
impression
might
get
one
(5th
granted,
en banc
803
Legal Framework
Applying
II.
provide
expla-
should
a reasonable
open
present
the failure to
evi-
nation for
explicit
offers
two
majority
The
The
in its case-in-chief.
evidence
dence
no
discretion
finding
abuse of
reasons
relevant,
proffered should be
admissi-
(1)
exhibit
Hugh did not offer
in this case:
ble,
helpful
technically adequate, and
his de-
resting
D-l-A in
before
guilt
or in-
ascertaining
(2)
798-99;
at
case, Maj. Op.
fense
see
The
of the accused.
belated
nocence
event,
any
D-l-A is inadmissible
testimony should not
receipt of such
the first
Maj.
at 799-801. As to
Op.
see
distorted im-
“imbue
evidence with
reason,
very
I
But so what?
agree.
portance, prejudice
opposing party’s
the record
purpose
reopen
of a motion
case,
preclude
adversary
an
previously
admit-
is to admit evidence
valid, no
adequate opportunity
majority’s point
to meet
If
were
ted.
granted.
motion to
should
be
reopen
ever
additional evidence offered.”
case,
That,
course,
cannot
(5th Cir.1982)
(quoting
F.2d
argument
regard,
in this
majority’s
778).9
Larson, 596 F.2d at
“The most
therefore,
As
response.
no further
needs
important
op-
consideration is whether the
reason, I
majority’s
for the
second
address
posing party
prejudiced
reopening.”
is
In
immediately
it in Part
II.A
below.
Blankenship,
Naturally,
at 741.
form,
D-l-A
capsule
portion
of exhibit
in the proceedings
later
the motion is
description
the robbers
giving Hasan’s
made,
likely
non-moving
the more
admissible,
ultimately
majority
party
prejudiced.
will be
See id. To re-
II.B-D,
go
I
acknowledges this.
Parts
“[mjotions
peat,
though,
have
on to
other factors relevant
address
after
granted
parties
been
both
rest-
reopen,
decision
as admissibili-
whether
Larson,
(citing
ed.”
Cir.1976)); see
(reopening
during
argu-
Admissibility
record
A.
Smith,
ments);
at *1
WL
“no
in the Dis-
finds
error
(admitting items
the close of evi-
“[a]fter
trict Court’s
[exhibit]
Walker,
dence”);
(re-
772 F.2d at
hearsay.” Maj. Op.
was inadmissible
opening the
af-
Government’s case-in-chief
for it is
law that
disagree,
hornbook
rested); Keating,
ter
both sides
116 F.
Ha-
portion
giving
exhibit D-l-A
(introducing “further evidence after
robbers,
in-
description
san’s
two
*8
plaintiff
both the
and defendant had an-
“nice
cluding
to one as
reference
closed”).
nounced that the case was
Addi-
beard,”
not
“Muslim-type
hair” and a
to
tionally,
particularly pertinent
and
this hearsay and is therefore admissible. See
case, “[rjeopening
permitted
(“A
is often
to
801(d)(1)(C)
statement
Fed.R.Evtd.
requirement
technical
...
supply some
if ...
testifies
hearsay
[t]he declarant
by
subject
some detail overlooked
inadver-
at the
... and is
cross-
[or]
trial
to
statement,
concerning
Blankenship,
For our the discussion on ad- lengthy discussion between Court and instead, missibility should end there. But Concluding counsel ensued. that discus- majority’s the bulk discussion at- sion, the Court ruled: tempts explain Hugh effectively why D-l-A [Exhibit not substantive evi- is] any claim admissibility waived dence, even if it’s somehow ad- defense counsel’s “fail- point, missible at this sending think ure single to call this answer or Rule it out the jury give it would undue 801(d)(1)(C) to the [District] Court’s atten- weight statement. The Maj. Op. tion.” at 800. There are several consider everything needs to Ha- [Ms. problems I analysis, have with this not the stand, on the san] said witness and it’s questionable least of which is the relevance their she said recollection what that’s waiver-type argument of a in the first important. And I would not send it out place. alleged error in this case is not jury, if even somehow were admissibility, so much but about rather the admissible as evidence. substantive reopen District Court’s refusal to the rec- short, hardly majority can fault review, therefore, ord. Our is not 801(d)(1)(C) failing to raise Rule typical same we as when consider eviden- when it would have made difference tiary rulings admissibility, where decision. plain waiver triggers defendant’s error re- Second, when the Court and counsel did Instead, view. we review here for an finally hearsay with the issue— wrestle denial abuse of discretion of a mo- the denial of motion to re- record, tion after which the open jury’s request and after the to see only requirement step analy- at this exhibit D-l-A —the Court concluded as sis is that exhibit be admissible in the follows: abstract. Concerns over timeliness not come within adequacy advocacy [Exhibit D-l-A] does counsel’s are 801(d), exception
addressed set out in set forth in rule factors Thet- Waiver, therefore, and Larson. can- which defines statements are not ford effect have a determinative on a deci- hearsay. And while under certain cir- nature, sion of this and the errs prior cumstances statements of wit- concluding otherwise. record, may be into the nesses admitted *9 hearsay, and are not deemed to be the majority’s But even waiver-of-admis- the document does not come within defi- First, sibility argument problems. has the 801(d)(1). forth in nitions set District Court did not rest its decision all, it within reopen the record on First of doesn’t come rule refusing to exhibit 801(d)(1)(A), supposed inadmissibility. In- since it is not under D-l-A’s document) (a rather than two-page It does not come within the defi- oath. 801(d)(1)(B) Hasan’s just portion comprising not the small nition of because it’s Maj. Op. of the robbers. See being description offered a statement consistent as majority if the is cor- it is at 799-800. Even with the declarant’s and is admissi- im- that the entire exhibit not express to rect not offered rebut ble,10 primary concern was whether plied charge the declarant of against was containing description the improper portion recent fabrication or influence the only reason counsel introduced. The his or motive. closing exhibit D-l-A discussed Af- analysis stops The there. inexplicably the compare to implore all was to the 801(d)(1)(A) ter Rule and having addressed the line-up description photographic 801(d)(1)(B),the took the next Court never thereby police, to and gave Hasan logical step Rule and considered line-up sugges- that was too conclude 801(d)(1)(C) though clearly that —even of to credit Hasan’s identification tive provision. It is that applicable true If the District Court’s concern Hugh. specifically never Rule Hugh raised truly hearsay por- with inadmissible were 801(d)(1)(C), required but neither was he document, of the there no reason tions Brink, to under our precedent. do so See why the document could have been merely at 425 it (holding sufficient “ redacted.11 argue to that rules [a ‘under federal hearsay.’ Although is not statement] (as sum, majori- In I conclude does the Rule [the defendant] did mention D- ty) portion of exhibit that relevant 801(d)(1)(C) objection expressly, his It thus neces- 1-A is admissible. becomes sufficiently specific to inform district factors, sary consider such as to court.”). question D- whether exhibit proffered, coun- character of the evidence hearsay presented 1-A contained it in a failing excuse introduce sel’s and addressed the District Court. manner, that timely prejudice and the all that is required. That is untimely its ad- might have resulted from Finally, faults these majority Hugh for mission. address factors entirety to admit that attempting of exhibit sections follow. permits being questions
10. Rule Federal of Evidence 612 Rather than limited writings credibilify, drafting history introduction of used to a wit- and text refresh testify. strongly suggest it is preparing recollection in Rule 612 instead that ness’s and, 612(2). applicable in there- majority suggests See cases such as this Fed.R.Evid. fore, may entirety D-l-A is writings be introduced under Rule only admissible. question in order to call into credibility. Maj. Op. witness’s See at 800- preliminary If the draft of Federal majority Hugh presumably fault 11. The would adopted, had been would raising Rules possible well for not redaction as a correct; provided that such evidence is simple response, explained solution. The earlier, purpose affecting [a admissible "for the base is that the District Court did not draft, credibility.” supposed hearsay char- witness’s] The revised D-l-A's however, acter, give phrase. omitted that This revision but rather would Redaction, course, apparent weight.” spawn with the broad- did concerns “undue Rule, they ening supposed infirmity, cure that but related failing pertaining privilege it. and the Jencks should not be faulted for to mention issues Moreover, Advisory were with in the Com- district courts should not need Act and dealt event, suggest any a docu- mittee’s Notes. those concerns assistance be redacted to exclude inadmissible are irrelevant here. See ment Alan Charles Wright remedy hearsay easy obvious in situ- Gold, & Victor James Practice Federal —an (1993). § like this. at 432-42 ations Procedure, *10 B. Hugh Character the Evidence formal identification of that Specifically, ever Hugh’s Hasan made.12 evaluating When character argued in closing evidence, proffered courts consider should that, given description, photo- Hasan’s practical problems (e.g., disruptiveness graphic line-up from she selected trial) may granting result in a Hugh as one of the robbers unduly reopen, motion to as well as effect it what suggestive: See, would have the entire e.g., case.
Walker, Here, Well, F.2d at you’ll 1178-79. both report, look at her ladies weighed Hugh’s considerations in favor of gentlemen, and marked it as I’ve Exhib- reopen. motion to [D-l-A], report, in and ladies and it. gentlemen, you says read She he First, practical implications of re- beard. Muslim-type got It’s opening the record were virtu- case you little chart for here. Because she ally already nil. Exhibit D-l-A had been said he hair. eight had nice Of the authenticated could have moved been people, in a we have to find the guy matter of seconds—and Muslim certainly in a shorter time amount of than nice hair. spent concluding
the District Court
Well, ladies
gentlemen,
get
let’s
document
admissible
would
be ad-
beards,
rid
shall
non-Muslim
we?
by reopening
mitted
record.
situ-
Guy
definitely
number one
has a Mus-
(involving
ation
a single
here
additional
lim-type
two,
Guy
my
beard.
number
document)
similar
in character to that
client, definitely
a Muslim-type
has
Smith,
presented
see 1994 WL
three, oh,
Guy
beard.
number
that ain’t
at *1 (allowing gift
be admit-
certificates to
Muslim-beard,
gentlemen.
ladies
evidence), DiBella,
ted after
close of
Guy
four,
a Muslim-type
number
he has
at
see 403 F.3d
the record
(reopening
five,
Guy
you
ah
beard.
number
could
time-sheet). Moreover,
introduce
ad-
say that was Muslim....
mitting
have been
less
than
disruptive
reopening the record
six,
Guy
number
is not a
additional
which other
seven,
Muslim-type
Guy
beard.
number
See,
courts have allowed.
Blanken-
e.g.,
possibly.
guy
eight,
And
number
that is
ship,
(admitting
definitely
Muslim-type
not a
beard.
witnesses);
three
additional
you
let
opinions
will
make these
when
(one
Green,
807 acknowledge signifi- taken, than yeah, give Rather ready [nice] we’ll him might properly that He doesn’t have hair on cance that exhibit hair. even decision, Okay. the District gentlemen. play jury’s ladies and picture, short, Hasan’s guy, sending his hair is so how could that This Court instead ruled say give he has nice hair? it “undue you jury This I conclusion misses weight.” have con- gentlemen, Ladies analogous here is elimina- mark.13 situation process ducted what? The of request portions a have of testimo- jury tion. back, previously we have ny read which possibil- we noted the Rabb addressed. you, gentle- I would ask ladies and only one of ity reading portion that “a of men, hand page my to look at the give testimony may jury cause the now, it And I right says, “Has[a]n.” never- portion emphasis,” that undue but elimination, process wrote of because theless concluded to. went that is what she testified She testimony through process transcript a of elimination. Just [r]eading like did. We didn’t even have to see witnesses would not necessar- two gone the man to do that. And I’ve ily emphasize preclude it or consider- to two. eight testimony. jury of the other ation circumstances, guess He In these it must be as- And what she said? very reading nicely groomed. beau- asked He had sumed hair. Of people, tiful those two ladies this because it was in gentlemen, gets groom upon disagreement prop- who nice doubt or in I’ll you award? let be the that. judge to er evaluation. added). (emphasis at 1013-14 More Id. Court has often had to
Our
examine
generally,
approv-
we
on to note
went
problems
by suggestive line-ups.
created
al
American
See,
position
advanced
Brownlee,
e.g.,
v.
454
United States
Relating
Bar Association
its Standards
Cir.2006);
Varner,
F.3d 131
Thomas v.
Project
(3d Cir.2005).
by Jury,
to Trial
ABA
general-
or disagreement.
Honor, I
[it]
labeled
as [a] defendant’s
670,
Wolf,
State v.
N.J.
44
207 A.2d
gave
a number. THE
[it]
(1965);
675-76
also
see
United States v.
Well,
COURT:
that doesn’t mean
[it is]
Hans,
Cir.1984)
88, 93
(noting
738 F.2d
evidence.”). Though this mistake was ele-
jury’s
that a
request
see certain exhibits
mentary, it
presents
was honest.
It also
a
importance);
indicates their
cf.
paradigm case
a
proper
for
use of
(1st
McCarthy,
F.2d
reopen.
motion to
See Blankenship, 775
Cir.1992) (affirming trial judge’s decision
(noting
F.2d at
that reopening
not to send an exhibit back to
jury,
but
record is often used to admit
it”).
evidence
noting
jury
did
request
“[t]he
inadvertence”);
“overlooked
Par-
The jury’s request here similarly demon
cf.
(“[T]he
ker, 73
at
given,
excuse
strates
importance
exhibit D-l-A in
case,
simply
defense counsel
the context of
and it
made mis-
should have
take,
weighed heavily in
seems
and does
granting
ap-
favor of
reasonable
reopen.
pear
subterfuge
delay
motion
to be a
trial-by-
seeking
For
jury
juries
Carter,
properly,
work
must be al- or unfair advantage.”);
569 F.2d at
important
It
sibility
bear
in mind that a
the statement could have been
proper
court's
Moreover,
concern is
the added
weight.
"undue"
if
even
weight
jury may
given piece
attach
ato
possibility,
cautionary
there were such a
abstract,
evidence in the
but rather whether
allayed
instruction could have
most concerns
weight
such added
would be "undue.” The
Larson,
regard.
in that
See
advertently grant omitted from the *1 motion (affirming chief’). can thus: judge Government Just the district reasoned when *13 permitted to record and intro- con- already the been has “[T]here necessary support evidence], to con- duce evidence so I will admit cerning [the mistakenly presented [it]____ that was mean, jury viction told I the has been case-in-chief, Blankenship, [it]____ in any see think I don’t there about needed (referring F.2d at 740 to evidence very jury might And the prejudice to it. venue), to too should proper establish so [it], we wonder, and then to see well want do the same the defendant be allowed to majori- problem.”). The are left with that to caused him omit when inadvertence has was occasion ty’s claim that there no significant a document to his defense. the to address exhibit Government After de- closing simply in not true. Prejudice to D. the Government during argued extensively fense counsel majority prejudice mentions the jury closing his the should analysis impor- “most prong of (without critically —the look at exhibit D-l-A consideration,” Blankenship, tant objection15), Government the Government only gener- at in in passing and 741— re- had full to in its opportunity respond (“[T]he Maj. Op. govern- al. See It not. Giv- closing buttal statement. did had no occasion to address [exhibit ment this, it how the imagine en is difficult through exhibits, D-l-A] prejudiced Government would been closing.”). comments of counsel D-l-A. The by the of exhibit introduction itself address Government does not here, prejudice possible fact is no But mystery why issue at all. there is no seriously at- and the does not despite majority’s this is so: concluso- tempt to otherwise. argue ry statement, there have been no would prejudice reopening to the Government III. Conclusion admit D-l-A. record to Considering all of factors relevant decision, District should police Both Hasan and the officer that Court reopened record admitted recorded her statement were the Govern- have such, admissible; reopen- It ment’s own witnesses. As Gov- exhibit D-l-A. hardly argue— can to admit it not have ernment be heard record trial; provided disrupted and it never has—either that did not would have jury critically important identifi- eyewitness descrip- know about Hasan’s jury descriptions cation tion of the robbers or that the evidence—evidence counsel’s specifically requested; somehow inaccurate. Blanken- defense were Cf. grant timely failure introduce an honest ship, (affirming it was (if mistake; reopen, elementary) there would saying of motion to non- appreciable prejudice have been moving party “could not have been sur- no attempts interraption, objected to without and then The Government now charac- object failure to as an terize its exercise sending the Interview Record proper etiquette. Appel- Br. of courtroom See court.”). opportunity soon ("[Rjather interrupt n. 2 than de- lee at 14 silence, normally matter how We call such no closing argument, the [G]ov- counsel’s fense polite, a "waiver.” complete closing allowed ernment him to in admitting short, Government it. mo-
tions to reopen exist precisely for cases this,
like believe the District Court
abused its in denying discretion Hugh’s request.16 Perhaps notable, most though, BAKSHA, Mohammed Elahi Petitioner is that the Attorney Assistant U.S. trying objected this case motion to ATTORNEY GENERAL OF
reopen at all. It is inconceivable to me STATES, the UNITED justice how was served depriving the Respondent. relevant, highly probative evidence (not to mention the additional resources No. 05-2055. *14 that have now been spent in defending the United States Appeals, Court of decision). Third Circuit. It is no small say matter that a Submitted Pursuant to Third Circuit district court’s decision was an abuse of 34.1(a) LAR April 2007. discretion. But the ease with which the jury’s request could have been honored Filed June 2007. and the obvious propriety and fairness in doing so lead me to conclude that this
decision not reopen qualifies. I would Hugh’s
reverse conviction and remand this Therefore,
case for a new trial. I respect-
fully dissent. Moreover, Because request conclude that the granted. District Court been it would not erred, I must also decide whether this was say an overstatement to that the balance of 52(a); Brink, harmless. against Hugh Government's case Fed.R.Crim.P. F.3d at 426. An error is harmless when primary “it is weak. against The other highly probable (1) [it] did not contribute partial fingerprint him included that a jury's judgment barely conviction.” United using trained examiner discredited Jannotti, (2) 220 n. 2 methods determined matched Cir.1984). obviously That is (who not so in Hugh’s girlfriend significantly, case. Most specifically schizophrenic hallucinations) prone D-l-A; requested (but to see exhibit based on that supposedly very) suspicious about his alone, jury’s one can days conclude that the robbery. Any behavior in the after the might decision have been different had its error here could not be harmless.