United States v. Coleman, Chauncey , 552 F.3d 853 ( 2009 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2008 Decided January 16, 2009
No. 05-3182
UNITED STATES OF AMERICA,
APPELLEE
v.
CHAUNCEY L. COLEMAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00349-01)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Mary B.
McCord, Assistant U.S. Attorneys.
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Before: SENTELLE, Chief Judge, and GINSBURG and
ROGERS, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Chauncey L. Coleman was
convicted by a jury of possession of a firearm by a prior felon,
in violation of 18 U.S.C. § 922(g)(1). On appeal he assigns a
variety of errors to the district court in contending that he was
denied a fair trial. Of the two voir dire challenges, we need
address only one. Because the district court read the unredacted
indictment to the prospective juror pool, revealing appellant’s
prior felony convictions for crimes of violence including
robbery with a deadly weapon, we reverse and remand for a new
trial. Appellant had offered to stipulate to his prior felon status,
and although defense counsel did not object, the issue was not
waived and the error was plain and not harmless.
I.
On the hot afternoon of July 10, 2004, Officer James
Boteler, a member of the Metropolitan Police Department for
four years, and Officer James Harris, a rookie in training,
entered a residential building in response to citizen complaints
about narcotics activity in vacant apartments. The officers were
in uniform. Boteler signaled to a woman on the front steps
whom he knew to be a drug user to remain quiet and proceeded
to the second floor where he heard voices. From the second
floor landing he looked through the open door of apartment 202
and saw five people: three in the living room; a woman standing
near a pass-through from the living room to the kitchen, who
appeared to be manipulating a crack pipe in her hands; and
appellant, who was standing in the kitchen facing Boteler and
holding to his mouth a clear glass smoking device with an
orange tip.
3
After ten to fifteen seconds, Officer Boteler, upon hearing
Officer Harris’s noisy footsteps behind him, stepped into the
apartment and announced “police.” The three people in the
living room stood still. Appellant looked startled and stepped
back from the countertop. According to Boteler, appellant
“grabbed, and, almost in a swatting motion, knocked . . . a
silver-colored handgun revolver with black grips from his
waistband,” out of the officer’s view. The gun made a “thud”
noise when it hit the floor. Boteler ordered appellant to put his
hands up and come out of the kitchen into the living room.
Appellant did so after putting his crack pipe on the counter.
Boteler claimed appellant was “sweating profusely” and looked
“very distressed.” Upon handcuffing appellant, Boteler told
Officer Harris to secure the others by having them put their
hands against the wall. At this point, Boteler mentioned a
“gun,” walked into the kitchen, and found a handgun less than
a foot from where appellant had been standing. Boteler called
the dispatcher for a crime scene technician.
On cross-examination, Officer Boteler denied that his prior
sworn statements regarding the gun were contradictory. He had
variously testified on previous occasions that Coleman “threw,”
“grabbed,” and “dropped” the gun. On cross-examination
Boteler testified that appellant had “dropped [the gun], grabbed
it, and knocked it out of his pants,” “almost in that order.” Two
other police officers also testified, a forensic scientist who
processed the gun and a fingerprint specialist who testified that
no identifiable prints were found on it. At the close of the
government’s case, the prosecutor read to the jury the three
stipulations agreed to by the parties: (1) appellant had previously
been convicted of a crime punishable by a term of more than one
year in prison; (2) the .357 magnum revolver and ammunition
were, respectively, a firearm and ammunition for purposes of
section 922(g); and (3) the gun and ammunition were
manufactured outside the District of Columbia and traveled
4
through interstate commerce.
In defense, appellant called Officers Boteler and Harris and
testified himself. Boteler admitted that in his initial call to the
dispatcher he had not informed the dispatcher of the gun but
claimed that at the time he did not need help with the gun
because it was secured. Harris admitted that he did not see a
gun on appellant and learned there was a gun only after
appellant was handcuffed, when Boteler mentioned a “gun.”
Harris testified that he only saw the gun on the kitchen floor and
the crack pipe on the countertop.
Appellant denied the gun was his. He testified that he was
in the apartment smoking crack along with four other people and
was holding up his crack pipe when the officers entered the
apartment. According to appellant, the woman had just given
him some crack, he had put it in his pipe, which he was holding
in his right hand, and was raising his lighter to his pipe with his
left hand. Jumping back upon seeing Officer Boteler, appellant
put the lighter on the counter and came from behind the counter
holding the crack pipe. Boteler told him to drop what was in his
hand, and he dropped the pipe on the floor. Boteler then stepped
on the pipe and handcuffed appellant. At that point Boteler told
Officer Harris that appellant was being locked up for possession
of cocaine and drug paraphernalia, and Harris called the
dispatcher. Boteler then walked into the kitchen, looked around,
and came out and asked the woman if she had any more cocaine.
Boteler returned to the kitchen and a few seconds later bent
down and came up with a gun. When Boteler asked appellant if
this was his gun, appellant told him: “Man, that ain’t my gun.
I ain’t have no gun.” Boteler then told Harris “gun.” Appellant
also denied having anything in his waistband.
On cross-examination, appellant admitted to prior
convictions for unauthorized use of a vehicle and destruction of
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property, escape, breaking and entering, and possession of stolen
property. The district court gave a cautionary instruction that
this evidence was relevant only to appellant’s credibility and not
to show that he has a propensity to commit crime. After defense
counsel’s redirect examination, the district court, over defense
objection, asked appellant how long he had been using crack,
and appellant answered: “About ten years.”
In final instructions, the district court offered no further
instruction on the use of prior crimes evidence. At the
prosecutor’s request, “as a matter of caution,” the version of the
indictment sent into the jury room was redacted. The jury found
appellant guilty of gun possession as a prior felon, and the
district court sentenced him to 120 months’ imprisonment and
three years’ supervised release, and ordered him to pay a special
assessment of $100.
II.
“The Sixth Amendment right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial, indifferent
jurors.” United States v. Edmund, 52 F.3d 1080, 1094 (D.C. Cir.
1995) (internal citations and quotation marks omitted). In
Gomez v. United States, 490 U.S. 858 (1989), the Supreme
Court identified voir dire as “a critical stage of the criminal
proceeding” because “[j]ury selection is the primary means by
which a court may enforce a defendant’s right to be tried by a
jury free from ethnic, racial, or political prejudice, or
predisposition about the defendant’s culpability.” Id. at 873(internal citations omitted); see also Rosales-Lopez v. United
States, 451 U.S. 182, 188 (1981); FED. R. CRIM. P. 24(a).
Appellant contends that he was denied a fair trial in violation of
the Sixth Amendment for several reasons, including that the
district court plainly erred during voir dire first, by reading the
unredacted indictment to the jury when he had offered to
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stipulate his felon status and second, by failing to inquire as
requested whether jurors held possible biases with respect to
police testimony and cases involving guns, and that these errors
were not harmless. Because the reading of the unredacted
indictment to the prospective jurors was reversible error, we
need not decide whether the failure to pose the requested
questions about police testimony and gun bias was also
reversible error.
Prior to the voir dire questioning of a pool of potential
jurors, the prosecutor advised the district court that the parties
had agreed to three stipulations, which the prosecutor read to the
jury at the close of the government’s case: that appellant had
previously been convicted of a felony and that the gun and
ammunition both qualified as prohibited under section 922(g).
The parties also submitted agreed-to proposed voir dire
instructions and questions as well as proposed jury instructions.
The district court acknowledged the prosecutor’s statement
about the stipulations and proceeded to discuss only the one
instruction, on probable cause, on which the parties were not in
agreement. The parties then discussed with the district court the
extent to which the jury would learn of appellant’s criminal
history, and the district court ruled that the prosecutor would not
be allowed to refer to either of appellant’s prior convictions as
a felony. Earlier appellant had filed an opposition to the
government’s in-limine motion to admit evidence of his prior
conviction for armed robbery pursuant to Federal Rule of
Evidence 404(b); the district court had denied the motion
without prejudice to its renewal at trial on rebuttal.
A jury pool was subsequently brought into the courtroom,
sworn, and given preliminary instructions by the district court,
including the instruction to listen to everything the district court
judge said because alternate jurors might be needed at trial. The
district court told the prospective jurors that the case involved a
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one-count indictment, explaining that an indictment was not
evidence, that the evidence would decide the case, and that it
was for the jury to determine whether the government had
sustained its burden of proof. The district court then read to the
jury the unredacted indictment, which stated in pertinent part:
On or about July 10, 2004, within the District of
Columbia, Chauncey L. Coleman, having been
convicted of crimes punishable by imprisonment for a
term exceeding one year in Prince George’s County,
Maryland . . ., a crime of violence, that is, robbery with
a deadly weapon and in D.C. Superior Court . . . a
crime of violence, that is, escape, did unlawfully and
knowingly receive and possess a firearm, that is, a
Smith & Wesson .357 caliber revolver, and did
unlawfully and knowingly receive and possess
ammunition, that is, .357-caliber ammunition, which
had been . . . transported in . . . interstate commerce.
(emphases added).
Although the district court judge, in conducting the voir dire
and eliciting responses to a written jury questionnaire, spoke
individually with some jurors when they volunteered
information about a law enforcement connection or a gun
incident and asked whether they could be fair and impartial, the
district court did not put to the pool of prospective jurors two
questions that the parties had jointly requested concerning police
testimony and gun charges.1
1
The two requested questions were:
Do you believe that law enforcement agents or officers are, or
are not, trustworthy as a general matter, and would any of you
tend to give either more or less weight to, or tend to believe
8
Defense counsel did not object in the district court to the
reading of the unredacted indictment. However, because
appellant stipulated to his prior felon status and even objected to
admission of Rule 404(b) evidence, appellant did not waive the
challenge he now makes. Although the failure to object forfeits
a claim, “[m]ere forfeiture, as opposed to waiver, does not
extinguish an ‘error’ under Rule 52(b).” United States v. Olano,
507 U.S. 725, 733 (1993); see also United States v. Tann, 532
F.3d 868, 872 (D.C. Cir. 2008). The government’s suggestion
that appellant invited the error by not objecting in the district
court and so cannot raise it on appeal, citing United States v.
Sutton, 801 F.2d 1346, 1367 (D.C. Cir. 1986), and Federal Rule
of Criminal Procedure 51(b), is not well taken. The parties
confirmed after their initial briefs were filed that joint proposed
voir dire and jury instructions were emailed to the district court
prior to trial, although never docketed. Further, nothing in the
record indicates that defense counsel requested the voir dire
error, as occurred in Sutton, United States v. Yousef, 327 F.3d
56, 119-20 (2d Cir. 2003), and United States v. Larouche, 896
F.2d 815, 829 (4th Cir. 1990), on which the government relies.
In Sutton, counsel voiced agreement on three occasions with the
district court’s ruling, 801 F.2d at 1367, whereas here, appellant
simply did not object. In Yousef, the defendants, whose requests
for mid-trial voir dire had been granted on certain subjects,
or disbelieve, the testimony of a law enforcement agent or
officer simply because of his or her status as a law
enforcement agent or officer?
Do you have an opinion or feeling about the possession of
firearms, or laws dealing with the possession of firearms, that
would make it difficult to render a fair and impartial verdict
based solely upon the evidence presented during the trial?
9
made a tactical decision not to request mid-trial voir dire on
other subjects, 327 F.3d at 119. Likewise, in Larouche, a
defense request failed to adequately probe the issue of juror bias
against the defendants, 896 F.2d at 829, whereas here, the offer
to stipulate was directed to that precise bias.
Although the challenge to the reading of the unredacted
indictment is not waived, because appellant failed to object at
trial he must show in order to prevail on appeal that there was
“an error that is plain and that affect[s] substantial rights,”
Olano, 507 U.S. at 732 (internal quotation marks omitted)
(alteration in original), by prejudicing the defense and “seriously
affect[ing] the fairness, integrity or public reputation of judicial
proceedings,” id. (quoting United States v. Young, 470 U.S. 1,
15 (1985)) (internal quotation marks omitted). We conclude that
appellant has met this burden.
In United States v. Jones, 67 F.3d 320 (D.C. Cir. 1995),
this court addressed the attendant harm of informing the jury of
the defendant’s prior felony conviction in a prosecution for
violation of section 922(g) where the prior conviction is
essentially identical to the charges in the indictment. Id. at 324.
Jones was indicted for drug offenses and being a felon in
possession of a firearm. Prior to voir dire, defense counsel
offered to stipulate to the fact of Jones’ prior felony conviction
and moved to exclude evidence of the prior conviction pursuant
to Federal Rule of Evidence 403. Id. at 321. Nonetheless, after
instructing the prosecutor not to refer to the nature of the prior
felony, the district court read to the jury the unredacted
indictment, which stated that Jones had previously been
convicted of possession with intent to distribute cocaine, which
was a felony. Id. When the prosecutor called a witness to
describe the nature of the prior felony, the district court
overruled the defense objection, stating that “the cat is probably
out of the bag,” and gave a limiting instruction then and during
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the final instructions to the jury regarding other crimes evidence.
Id.On appeal, the government presciently conceded that it was
error to read the unredacted indictment in light of the defense
offer to stipulate felon status, id. at 322-23; see Old Chief v.
United States, 519 U.S. 172, 191-92 (1997), but argued that the
error was harmless, Jones, 67 F.3d at 322. This court held that
the district court had abused its discretion by denying the
defense motion to exclude evidence of the nature of the prior
felony conviction and that it had plainly erred by informing the
jury of the nature of the felony when reading the indictment and
giving final jury instructions. Id. at 324-25. Applying to
Federal Rule of Evidence 403 this court’s rationale regarding
severance motions, the court observed that “the danger of undue
prejudice by allowing the government to introduce evidence
regarding the nature of Jones’ prior felony conviction was
manifest in view of the virtually identical charges in the
indictment.” Id. at 324; cf. United States v. Dockery, 955 F.2d
50, 54 (D.C. Cir. 1992); United States v. Daniels, 770 F.2d
1111, 1116 (D.C. Cir. 1985). Further, even though the
government had no need to establish the nature of the prior
felony to meet its burden of proof, Jones, 67 F.3d at 324 (citing
United States v. Tavares, 21 F.3d 1, 3-4 (lst Cir. 1994) (en
banc)), the jury was confronted on five separate occasions with
both the fact and nature of Jones’s prior felony conviction, id.The court concluded that the error was not harmless because
once the jury learned of his prior offense, Jones’ casual user
defense was doomed. Id. at 325.
Confronted with the same issue in United States v. Myles,
96 F.3d 491 (D.C. Cir. 1996), where the prior-conviction
information had been presented to the jury on four occasions,
the court concluded that, in the absence of any defense
objection, there was no plain error, id. at 496-97. The court
11
distinguished Jones on the ground that the defense had neither
offered to stipulate nor requested that the prosecution refrain
from revealing the nature of the prior conviction, id. at 496. The
court further concluded that the error was not prejudicial in light
of “the strong evidence” of drug distribution, id. at 497, namely
a controlled buy in which Myles was the only man matching the
undercover officer’s description of the seller, a prerecorded
twenty dollar bill found under the mattress where Myles was
lying when the arrest team entered the bedroom, and the loaded
gun found during a search of the apartment incident to Myles’
arrest, id. at 493-94.
Under this court’s precedents, then, where proof of the
defendant’s prior felon status is required, it is reversible error for
the district court to read to the jury the unredacted indictment
referring to the prior felony offense where the defense has
offered to stipulate felon status and either a defense is
compromised or the government’s evidence of guilt is not
“strong.” See Jones, 67 F.3d at 324-25; Myles, 96 F.3d at 496-
97. Here, appellant offered to stipulate his felon status. He also
sought to exclude Rule 404(b) evidence of and references to his
prior armed and violent convictions in the government’s case-in-
chief. Yet the prospective jurors were informed of appellant’s
prior offense involving gun possession from the reading of the
unredacted indictment. As this court has acknowledged,
manifest prejudice can result when the jury is informed of a
prior conviction that is similar to the charged offense. See, e.g.,
Jones, 67 F.3d at 314. One of the prior offenses listed in the
indictment, robbery with a deadly weapon, is substantially
similar to the charged offense of felon in possession of a
weapon. Moreover, the other government evidence was not
strong. As both the district court and the prosecutor
acknowledged during trial, the outcome of the case turned on
whether the jury believed Officer Boteler or appellant. The
district court’s reading of the unredacted indictment incurably
12
compromised appellant’s defense denying gun possession.
Accordingly, the district court plainly erred in reading the
unredacted indictment to the jury.
The government’s attempt to distinguish Jones on the
ground that appellant had not offered to stipulate his felon status
until after the unredacted indictment was read to the jury is
based on a misreading of the record. In its brief the government
relies on a transcript reference when the prosecutor moved for
admission of the stipulations, overlooking the transcript
reference indicating that the district court was informed of the
joint stipulations before a jury pool was brought into the
courtroom. The government’s reliance on United States v.
Moore, 104 F.3d 377 (D.C. Cir. 1997), is misplaced; unlike
appellant, the defendant in Moore sought no measures to
minimize the prejudice from joinder of the section 922(g)(1)
charge, id. at 382.
The voir dire error was not harmless because its effect was
to bolster Officer Boteler’s testimony and discredit appellant’s
where “police officer credibility lies at the heart of the case,”
United States v. Littlejohn, 489 F.3d 1335, 1346 (D.C. Cir.
2007). In closing argument, the prosecutor emphasized that “the
only thing at issue . . . [was] where [the] gun came from, [and]
whose gun was it,” and that “this case is about credibility.”
Appellant challenged the officer’s testimony on cross-
examination, and in his own case underscored the degree to
which the government’s case turned on Boteler’s credibility. As
in Jones, appellant’s defense denying gun possession was
doomed by the reading of the unredacted indictment stating he
had previously been convicted of armed robbery. Unlike the
government’s evidence in Myles, there was no independent
corroborating evidence; Officer Harris saw neither a gun on
appellant’s person nor where Boteler had found the gun.
Consequently, the government’s evidence was not “strong,”
13
much less overwhelming. See United States v. Clay, 346 F.3d
173, 177-78 (6th Cir. 2003); United States v. Turner, 565 F.2d
539, 541 (8th Cir. 1977).
Accordingly, we reverse the conviction and remand for a
new trial. We need not reach appellant’s other claims of error.
For example, any error arising from the district court’s
questioning of appellant about his crack cocaine habit is unlikely
to recur at retrial. However, in light of our remand, we caution
that appellant’s second claim of voir dire error is not without
force. In Brown v. United States, 338 F.2d 543 (D.C. Cir. 1964),
the court held that the failure to inquire into prospective jurors’
possible biases regarding police testimony was reversible error,
id. at 545 (citing Sellers v. United States, 271 F.2d 475, 476-77
(D.C. Cir. 1959)), where “virtually the entire case for the
prosecution” consisted of the testimony of two military police
officers. Although the district court retains “ample discretion”
in conducting voir dire, Rosales-Lopez v. United States, 451
U.S. 182, 189 (1981), and does not necessarily have to ask all of
the questions that the parties request, see United States v. West,
458 F.3d 1, 6 (D.C. Cir. 2006), this discretion is “subject to the
essential demands of fairness,” Aldridge v. United States, 283
U.S. 308, 310 (1931). There is every reason to view the two
requested voir dire questions, supra note 1, as important in order
to “probe a potential juror’s views of the credibility of certain
kinds of witnesses,” West, 458 F.3d at 8, as well as bias
regarding the charge against appellant. See Littlejohn, 489 F.3d
at 1343; United States v. Boney, 68 F.3d 497, 502 (D.C. Cir.
1995); United States v. Liddy, 509 F.2d 428, 435 (D.C. Cir.
1974); cf. Gray v. Mississippi, 481 U.S. 648, 665 (1987). As in
Brown, “[r]esponses to the requested query might have supplied
defense counsel, or indeed the prosecutor, with relevant and
useful information for exercising peremptory challenges or
challenges for cause,” 338 F.2d at 545; see also Littlejohn, 489
F.3d at 1343-44. The significance of the inquiries is highlighted
14
by the fact that officer credibility was the key issue, see United
States v. Aragnos, 853 F.2d 1, 5 (1st Cir. 1988); Sellers v.
United States, 271 F.2d 475, 476-77 (D.C. Cir. 1979), and
appellant was charged with a gun offense, see, e.g., United
States v. Shavers, 615 F.2d 266, 268 (5th Cir. 1980).
Finally, a remand is not required on appellant’s claim of
ineffective assistance of trial counsel for failing to call the
woman in the apartment as a witness and to preserve errors for
appeal. That defense counsel was “functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” Strickland
v. Washington, 466 U.S. 668, 687 (1984), is demonstrated by the
fact that he hired an investigator and presented stipulations as
well as proposed voir dire questions and instructions in addition
to opposing the government’s in-limine motion to introduce
Rule 404(b) evidence in its case-in-chief.