212 F.3d 1305 (D.C. Cir. 2000)
United States of America, Appelleev.John Williams, Appellant
No. 99-3058
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2000Decided May 30, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cr00288-01)
Gabriel R. Sanz-Rexach argued the cause for the appellant.  John P. Dean was on brief for the appellant.
Sharon A. Sprague, Assistant United States Attorney,  argued the cause for the appellee.  Wilma A. Lewis, United  States Attorney, and John R. Fisher, Assistant United States  Attorney, were on brief for the appellee.
Before:  Silberman, Henderson and Garland, Circuit  Judges.
Opinion for the court filed by Circuit Judge Henderson.
Dissenting opinion filed by Circuit Judge Silberman.
Karen LeCraft Henderson, Circuit Judge:


1
John Williams  seeks reversal of his conviction of possession of a firearm and  ammunition by a felon.  Williams argues that the district  court made erroneous evidentiary rulings that cannot be  deemed harmless.  He challenges the admission of police  officers' testimony regarding the contents of a police radio  call during the events leading to his arrest, the general  danger of traffic stops and the assertion that drug users  commonly carry weapons.  It is the admission of the latter, followed by the trial court's denying Williams an opportunity  to cross-examine the witness and the government's mention  of the testimonyin closing argument, which concerns us  here.1

I.

2
Between 1:30 and 1:45 a.m. on August 1, 1998, Officers  Antonio Duncan and David Reid of the Metropolitan Police  Department, patrolling in the southeast region of the District  of Columbia in a police cruiser, stopped the car in which  Williams was a passenger for failing to stop completely at a  stop sign and then straddling a double-yellow line.  As soon  as the officers left their cruiser, Williams got out of the  passenger side of the car "in a crouched position."  Transcript (Tr.) 3/3/99 at 39.  The officers testified that Williams  immediately reached for his waistband and that he was  holding something "of some girth[,] ... an object of some  weight," id. at 166, which they believed could have been a  concealed weapon.  See id. at 158-59, 166-67.  Ignoring  commands to remain in the car and, then, to show his hands,  Williams maneuvered around the open door and began running.  Duncan chased him while Reid detained the driver,  who had stayed in the car.2


3
Running with his hands at his waistband, Williams began to  cross a footbridge.  He collided into the metal railing and  slowed down a bit.  The collision caused a metal clanking  noise.  Duncan suspected that whatever object Williams appeared to have been carrying caused the clanking noise and  that Williams may have discarded it from the bridge.  Continuing his pursuit, Duncan did not hear the sound of an  object striking the concrete "creekbed" below.  He made a  radio call requesting backup wherein he described the suspect  and his location and mentioned the "possibility" that the  suspect had a gun.3  Tr. 3/3/99 at 47.  Shortly thereafter,  Duncan apprehended and arrested Williams with the help of  an unidentified civilian.


4
Officer Carter Adams responded to the radio call and, at  Duncan's direction, searched portions of the creekbed.Williams had told Duncan, when returning to the spot where  he hit the footbridge railing, first, that Duncan had not seen  him throw anything and "had no case" and, then, that he had  thrown his "stash" or his "works," id. at 50, terms commonly  used to refer to drugs and drug paraphernalia, respectively.Adams found no drugs or drug paraphernalia but did find a  handgun.  The creekbed contained "no more than half an  inch" of water.  Tr. 3/4/99 at 5.  Analysis of the gun revealed  neither fingerprints nor rust.  The safety switch on the side  of the gun facing the ground was bent and a piece on the  bottom of the gun was cracked.


5
Williams's first trial on one count of unlawful possession of  a firearm and ammunition by a felon, a violation of 18 U.S.C. S 922(g)(1), resulted in a mistrial when the jury failed to  reach a unanimous verdict.  After Williams withdrew a guilty  plea to a lesser offense, a second trial commenced.  The  officers' testimony at the retrial focused on their suspicion  that Williams had a gun because of his movements when he  got out of the car and his collision with the bridge railing.  The officers conceded, however, that they did not see an  object in Williams's hands nor see him actually throw anything.  Defense counsel offered other explanations for the  officers' observations and for the discovery of the gun in the  creekbed.  The government had established Williams was a  druguser4 so defense counsel raised the possibility that  Williams could have discarded drugs or drug paraphernalia,  see Tr. 3/3/99 at 109-11, and suggested that the officers did  not conduct an adequate search to rule out the possibility, see  id. at 140-42.  Counsel also elicited testimony that violence  was common in the area and recovery of a gun in the area  was not unprecedented.  See id. at 80.


6
After a lengthy redirect examination of Duncan, the prosecutor ended the questioning with the following exchange:


7
Q: Now you were asked a lot of questions about violent crimes in that area [where the chase and subsequent arrest occurred] and about guns being discarded, is that right?


8
A: Correct.


9
Q: Okay.  And you know that area pretty well?

A: Yes

10
Q: In your experience as a patrol officer, is it common for people who use drugs or sell drugs to carry weapons for protection?


11
A: Yes. Tr. 3/3/99 at 160-61 (emphasis added).  The court then excused Duncan from the witness stand and defense counsel approached the bench, explaining that she would have objected to the last question but did not have the chance because  "[t]hat answer came out so quickly."  Id. at 161.  The trial  judge said she would have allowed the exchange in any event  and then denied counsel's request for a "very brief re-cross."  Id.  The prosecutor reminded the jury of Duncan's testimony during her reply closing argument and in the following context:


12
Counsel also raised an issue about violent crime in the area to explain, possibly, how this gun--some other way that this gun could have ended up in that creek....[C]ounsel ask [sic] a number of questions about violent crime and about people discarding weapons in the area[,]and you will recall those type [sic] of questions.  Well, remember that the officer also testified that it is not uncommon for drug users or drug sellers to carry weapons for protection as well.


13
Ladies and gentlemen, there is no evidence that this weapon was tied to any violent crime.  And in fact, the evidence is to the contrary because had this gun been involved in a violent crime, where somebody wanted to get rid of it, you would expect that it wouldn't be fully loaded....  If you recall, this was a fully loaded weapon with one in the chamber....  In addition, it's an expensive weapon....


14
Tr. 3/4/99 at 154-55.


15
Williams was convicted and sentenced to 180 months in  prison, followed by two years of supervised release.  A special assessment of $100 was also imposed.

II.

16
We review a trial judge's evidentiary rulings for abuse of  discretion.  See United States v. Smart, 98 F.3d 1379, 1386  (D.C. Cir. 1996) (citing United States v. Salamanca, 990 F.2d  629, 637 (D.C. Cir.), cert. denied, 510 U.S. 928 (1993)).  A  "district court's decision to admit evidence ... is entitled to  'much deference' on review," United States v. Ramsey, 165  F.3d 980, 984 n.3 (D.C. Cir.) (quoting United States v. Lewis, 693 F.2d 189, 193 (D.C. Cir. 1982)), cert. denied, 120 S. Ct.  223 (1999), but if it is found erroneous, the burden is on the  government to prove the error was harmless.  See United  States v. Lampkin, 159 F.3d 607, 614 (D.C. Cir. 1998), cert.  denied, 526 U.S. 1140(1999);  Smart, 98 F.3d at 1390 ("At all  times, the burden of proving that an error was not prejudicial  rests on the government.") (citing United States v. Olano, 507  U.S. 725, 734 (1993)).

A.

17
Williams challenges the admission of Duncan's affirmative reply on redirect examination to the following question:  "In  your experience as a patrol officer, is it common for people  who use drugs or sell drugs to carry weapons for protection?"  Tr. 3/3/99 at 160-61.  Although the inquiry regarding Duncan's experience with drug dealers commonly carrying weapons for protection raises no eyebrows, see, e.g., United States  v. Conyers, 118 F.3d 755, 757 (D.C. Cir. 1997) (noting in  appeal of drug trafficking conviction "those who transport  drugs often carry (and all too often use) a firearm"), we  cannot say the same regarding drug users.5  Finding the link  between drug users and guns tenuous, we look to the foundation of Duncan's opinion testimony.


18
The prosecutor framed the question to Duncan as "in [his]  experience as a patrol officer."  Duncan had testified earlier  that he had made gun charge arrests about "six or seven  times."  Tr. 3/3/99 at 148.  He added that he had "recovered  more than one weapon on a person" and then revised his  previous estimate to "anywhere from ten to eleven, just a  general amount."  Id.  After hearing defense counsel's late  objection to Duncan's response and commenting that she  would have overruled the objection had it been timely made,  the trial judge denied defense counsel the opportunity to  recross-examine Duncan.


19
The foundation of Duncan's opinion linking drug users and  possession of weapons is anything but firm.  Fewer than one  dozen arrests involving possession of a firearm is not sufficient grounding to qualify him as an expert under Rule 702 of  the Federal Rules of Evidence (FRE), particularly without  evidence establishing that any of those arrests involved a  drug user.  If, instead, we view his testimony as having been  admitted under Rule 701,6 FRE, we question whether Duncan's answer wasrationally based on his perceptions.  He did  not establish a factual basis for credible opinion testimony  regarding the likelihood of drug users being armed.7  Moreover, as noted above, trial judges generally rely on the  structural check of cross-examination in permitting opinion  testimony with a weak foundation and, for that reason, enjoy  broad discretion.  But here the trial court refused to grant  defense counsel's request for an opportunity to recross-examine Duncan which would have allowed counsel to expose  Duncan's lack of experience.  We conclude that the district  court's ruling admitting arguably relevant testimony8 over  objection despite the lack of foundation, especially in light of  its subsequent denial of defense counsel's request for "a very  brief re-cross," constitutes error.  Cf. United States v. Stock,  948 F.2d 1299, 1302 (D.C. Cir. 1991) (error to deny crossexamination of police officer for impeachment).  We now  consider if the error was harmless.

B.

20
In determining whether a non-constitutional trial error is  harmless, we ask whether " 'with fair assurance, after pondering all that happened without stripping the erroneous action  from the whole, that the judgment was not substantially  swayed by the error.' "  United States v. Schaffer, 183 F.3d  833, 852 (D.C. Cir. 1999) (quoting Kotteakos v. United States,  328 U.S. 750, 765 (1946)).  In other words, we ask "whether  the error 'had a substantial or injurious effect or influence in  determining the jury's verdict.' "  Smart, 98 F.3d at 1390  (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)  (quoting Kotteakos, 328 U.S. at 776)).  If the error had such  an effect, or if we are left in " 'grave doubt' " about the  harmlessness of the error,9 we must reverse the conviction.Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995)).


21
On the record below, we can identify only one factor (apart  from the testimony itself) suggesting the testimony may have  affected the jury verdict, that is, the prosecutor's reminding  the jury of Duncan'stestimony during her closing argument  in rebuttal.  See United States v. Rhodes, 886 F.2d 375, 382  (D.C. Cir. 1989) (prosecutor's closing argument reference to improperly admitted evidence contributed to conclusion that  error was not harmless).  Because the testimony was elicited  during redirect examination and recross-examination was denied, defense counsel could have responded to the testimony  only in her closing argument and could not have responded at  all to the prosecutor's rebuttal reference to Duncan's testimony.  Although defense counsel did not, perhaps understandably, request a limiting instruction regarding Duncan's challenged testimony, she did obtain a limiting instruction as to  other portions of Duncan's testimony.  See Tr. 3/1/99 4-5, 8-9  and Tr. 3/4/99 at 105 (instruction limiting use of testimony  regarding radio call).  The absence of an instruction limiting  the jury's use of the challenged testimony may have reinforced it.  Cf. United States v. Spinner, 152 F.3d 950, 961-62  (D.C. Cir. 1998) (limiting instruction given for some but not  other "bad acts" evidence may enhance latter's influence on  jury).  Notwithstanding the prosecutor's statement reminding  the jury of Duncan's testimony linking drug users and guns,  we believe the statement, viewed in the context of the entire  rebuttal closing argument (only one sentence in an argument  covering ten pages in the record, see Tr. 3/4/99 at 150-59) had  minor impact.  The prosecutor made the comment in response to the defense explanation for discovery of the gun. The thrust of her response, however, was the lack of evidence  to support Williams's theory that guns are endemic to a high  crime area.


22
The most significant factor that negates the error's impact  is the weight and nature of the evidence against Williams.10See generally Stock, 948 F.2d at 1304 (refusal to allow cross-examination of officer violated confrontation clause but was harmless because other prosecution evidence "was so much  more credible than the defense testimony that [the court  concluded] without reasonable doubt that the jury would have  found [defendant] guilty").  The government's case was based  on Duncan's and Reid's observations of Williams as he got out  of the car and as he fled.  The officers testified that Williams  first disregarded Duncan's order to remain in the car.  When  Williams got out, he was "in a crouched position," Tr. 3/3/99  at 39, and "immediately grabbed for his waistband," id. at  166.  He "was holding something of some girth," id., and  refused to obey Duncan's command to show his hands, see id.  at 167, instead running away with his hands still at his  waistband.  See id. at 44.  Recounting his pursuit, Duncan  said that Williams's bumping into the metal railing of the  footbridge caused a clanking noise as Williams slowed down  and appeared to discard something.  See, e.g., id. at 45-48.When Duncan finally apprehended him, Williams first stated  "that [Duncan] didn't see him throw anything, and that  [Duncan] had no case," and then claimed he had thrown his  drug "works" from the bridge.  Id. at 50.


23
As a passenger in a car stopped by the police, Williams's  immediate flight does not weigh in his favor.11  See Illinois v.  Wardlow, 120 S. Ct. 673, 676 (2000) (defendant's unprovoked  flight from officers in area of heavy narcotics trafficking  supported reasonablesuspicion defendant was involved in  criminal activity).  More significant was the ready discovery  of a handgun (without rust and slightly damaged--both factors consistent with having recently fallen from the bridge  above) where Duncan suspected it would be found and the  fact that Williams did not deny that he threw something from  the bridge or that the police found the gun below the bridge. Rather, Williams offered an alternative explanation for what  he threw, which was not found, and for why it was not found. The properly admitted evidence leaves little doubt that the  erroneous admission of the testimony linking drug users and guns was harmless.  See United States v. Sanchez-Sotelo, 8  F.3d 202, 211 (5th Cir. 1993) (error in admitting lay opinion  testimony without foundation harmless where evidence aliunde permitted inference establishing element of crime);  cf.  United States v. Rhodes, 62 F.3d 1449, 1453 (D.C. Cir. 1995)  (error in admitting without foundation prior inconsistent  statement of witness admitting he and defendant had been  selling drugs and firearms not sufficiently prejudicial to warrant reversal where prosecution established drugs and weapons seized belonged to defendant);  United States v. McConnell, 988 F.2d 530 (5th Cir. 1993) (admission of coconspirator  statement without foundation constituted reversible error in  conspiracy conviction where hearsay testimony was "crucial  link in the chain" between appellants and conspiracy) (emphasis added).


24
Moreover, although, as noted earlier, defense counsel requested no limiting instruction, the trial judge gave standard  instructions that the jury is the "sole judge" of the credibility  of the witnesses, Tr. 4/4/99 at 102, a determination that may  be affected by whether a witness had an opportunity to  observe matters about which he testified, see id., and that the  questions, statements and arguments of the lawyers are not  evidence.  See id. at 100, 101.  We believe these instructions  further mitigated any potential prejudice.  See United States  v. Hawkins, 595 F.2d 751, 755 (D.C. Cir. 1979) (similar  instructions "provided at least some mitigation of any prejudice ... which might have arisen from the prosecutor's  closing remarks");  Barkley v. United States, 323 F.2d 804,  808 (D.C. Cir. 1963) (no plain error for failure to give cautionary instruction on lay testimony in absence of request and  where general credibility instruction given).  But cf. United  States v. Watson, 171 F.3d 695, 700-02 (D.C. Cir. 1999)  (standard jury instructions notwithstanding, prosecutor's misstatement of evidence in closing regarding central issue in  close case not harmless error).


25
In addition, Duncan's testimony elicited by the prosecution  was only partially objectionable.  The reference to drug users  did not stand alone;  rather, the prosecution referred to drug  users and drug dealers.  The fact that the jury heard unobjectionable testimony together with objectionable testimony  may have "buried," and therefore minimized, the objectionable portion.


26
For the foregoing reasons, we conclude that the brief  testimony and argument linking drug users and guns did not  have a "substantial effect" on the verdict nor are we left in  "grave doubt" regarding the harmlessness of the error.  Reviewing the evidence against Williams, we are confident the  jury focused on Duncan's and Reid's observations of Williams  during the stop and pursuit and on other inculpatory evidence, including the location and condition of the gun retrieved, not on Duncan's affirmative response to a general  proposition made at the very end of his lengthy testimony. Accordingly, we find the error harmless and affirm Williams's  conviction.


27
So ordered.



Notes:


1
 We have considered Williams's arguments regarding the admissibility of other portions of the officers' testimony and find them  without merit.


2
 The reasonableness of neither the stop of the car nor the  subsequent pursuit of Williams is in question.


3
 While Duncan testified that he had said "possibility" in the  radio call, see Tr. 3/3/99 at 47, Officer Carter Adams, who responded to the call, testified that he remembered the radio call differently, that is, as describing the suspect as a man with a gun.  See Tr.  3/3/99, mid-afternoon session, at 5.  The tape of the call was not in  evidence.


4
 See Tr. 3/3/99 at 68-69 (property taken from Williams after  arrest included syringe and needle exchange card).


5
 As noted, evidence at trial established that Williams was a drug  user.  See, e.g., Tr. 3/3/99 at 50, 68-69.


6
 Rule 701, FRE, allows lay opinion testimony that "is limited to  those opinions or inferences which are (a) rationally based on the  perception of the witness and (b) helpful to a clear understanding of  the witness' testimony or the determination of a fact in issue."  Fed.  R. Evid. 701.  We afford trial judges broad discretion in admitting  opinion testimony of lay witnesses.  See, e.g., United States v.  Pierson, 503 F.2d 173, 176 (D.C. Cir. 1974) (trial judge should have  broad discretion and "[o]nly a clear abuse of discretion" warrants  reversal);  see also United States v. Pierce, 136 F.3d 770, 773 (11th  Cir.) (" 'The ultimate decision as to the admissibility of lay opinion  testimony is committed to the sound discretion of the district court  and will not be overturned on appeal unless there is a clear abuse of  discretion.' ") (quoting United States v. Myers, 972 F.2d 1566, 157677 (11th Cir. 1992)), cert. denied, 525 U.S. 974 (1998).  The leeway  is due in large part to the opportunity the trial judge ordinarily  affords opposing counsel to expose a weak foundation through  cross-examination of the witness.  See, e.g., Pierson, 503 F.2d at 176  (" 'It is hardly ever reversible error to admit such evidence;  its  foundation may generally be as conveniently left to crossexamination.' ") (quoting Central R.R. Co. of N. J. v. Monahan, 11  F.2d 212, 214 (2d Cir. 1926) (Hand, J.));  see also Daubert v. Merrell  Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ("Vigorous  cross-examination, presentation of contrary evidence, and careful  instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.").  Nevertheless, to admit lay opinion evidence rationally based on the witness's  perception, a sufficient factual foundation must exist.  See, e.g.,  Carter v. United States, 252 F.2d 608, 617 (D.C. Cir. 1957) (lay  witnesses may testify "only upon the basis of facts known to them").
The Office of Legal Education of the Executive Office for United  States Attorneys provides guidelines to establish a proper foundation for the opinion testimony of a skilled lay observer:
1. That the witness has, on prior occasions sufficient in number to support a reasonable inference of knowledge of or familiarity with a subject, observed particular events, conditions, or other matters.
2. That the witness on a certain occasion observed a specific event, condition, or matter of the same nature as previously observed.
3. That on the basis of his knowledge or familiarity with the event, condition or matter, he has an opinion as to the event, condition or matter involved in the case.
4. That the statement of the opinion will be helpful to a clear understanding of the testimony of the witness [or] the determination of a fact in issue.
J. Randolph Maney, Jr. & Ruth E. Lucas, Courtroom Evidence 130  (Office of Legal Education, Executive Office for United States  Attorneys (1998) (citing Murl A. Larkin, Federal Evidence Foundations 119-20 (1988)).  Here the prosecutor established neither  the first nor the second premise above.  She elicited no testimony  from Duncan regarding any "prior occasions," much less occasions  "sufficient in number to support a reasonable inference of knowledge," in which he arrested drug users carrying guns or otherwise  observed drug users carrying guns.


7
 The lack of foundation for this testimony is especially clear  when compared to the government's practice of eliciting expert  testimony to establish drug dealers' habits.  See, e.g., United States  v. Fennell, 53 F.3d 1296, 1300 (D.C. Cir. 1995), order on reh'g, 77  F.3d 510 (1996).


8
 Assuming a proper foundation, the testimony would tend to  make less probable the scenario defense counsel had suggested,  that is, area violence accounted for the gun found in the creekbed.


9
 The United States Supreme Court has said:  "By 'grave doubt'  we mean that, in the judge's mind, the matter is so evenly balanced  that he feels himself in virtual equipoise as to the harmlessness of  the error."  O'Neal v. McAninch, 513 U.S. 432, 435 (1995).  Explaining further, the Court described "grave doubt" as "unusual"  because "[n]ormally a record review will permit a judge to make up  his or her mind about the matter ... [a]nd indeed a judge has an  obligation to do so."  Id.


10
 Our dissenting colleague speculates that because the first trial  resulted in a hung jury, the second trial necessarily presented a  close case.  See Dis. Op. at 1-2.  We advise caution in assigning  critical significance to the failure of a different jury, which heard  different evidence and argument, to reach agreement.  We should  also hesitate to connect the length of deliberations with the strength  of the government's case.  But cf. id. (relying on Dallago v. United  States, 427 F.2d 546 (D.C. Cir. 1969) (five-day deliberation after six-week trial with 37 witnesses and 175 exhibits)).


11
 The trial judge instructed the jury that evidence of flight may  be properly considered as a circumstance suggesting guilt but that  it does not raise a presumption of guilt.  See Tr. 3/4/99 at 104.


Silberman, Circuit Judge, dissenting:

28
I agree with the  majority that the trial judge committed error in this case, but  I disagree that the error was harmless.


29
This was a close case.  Although the officers testified that  appellant was actingas if he had a gun, no one saw appellant  with one, and there were no fingerprints on the gun.  See  Maj. Op. at 3.  Appellant's flight is neither here nor there  with respect to whether he possessed a firearm;  flight is  equally indicative of appellant's possession of the illegal drugs  he claimed to have.  See Maj. Op. at 11.  There is a vast  difference between using flight as the basis for a reasonable  suspicion of some unknown criminal activity, see Illinois v.  Wardlow, 120 S. Ct. 673, 676 (2000), and using flight here to  link appellant to a gun found in his vicinity.  While some  evidence was at least suggestive of appellant's guilt (his  behavior, the condition of the gun), it was hardly overwhelming.  I find it difficult to believe a jury found defendant guilty  beyond a reasonable doubt.


30
The majority considers the possibility that the jury did not  pay attention to Officer Duncan's statement with respect to  drug users and guns, hypothesizing that the officer's statement with respect to drug dealers overshadowed it.  See Maj.  Op. at 12-13.  But I find that unlikely.  If, as we all agree, a  statement that "drug dealers commonly carry weapons for  protection raises no eyebrows," Maj. Op. at 6, it is probable  the jury focused on the new information that the same is true  of drug users.  Since appellant was an admitted drug user-he argued as much to the jury--the likelihood that the jury  glossed over Officer Duncan's statement is minuscule.  And  the prejudicial statement cuts right to the heart of the case: Was this drug user in possession of a gun?


31
It is particularly troubling that, as the court's opinion  recounts, the first jury to consider this case could not reach a  decision, resulting in a mistrial.  See Maj. Op. at 3-4.1  It was only in the second trial, in which Officer Duncan's  prejudicial statement about drug users and weapons was  introduced, a statement repeated by the prosecutor during  her summation, that appellant was convicted.  Since the  inquiry we undertake asks whether "with fair assurance, after  pondering all that happened without stripping away the erroneous action from the whole, ... the [jury's] judgment was  not substantially swayed by the error," the original mistrial is  undoubtedly relevant.  United States v. Schaffer, 183 F.3d  833, 852 (D.C. Cir. 1999).  The difficulty the first jury had  with this case amply demonstrates that we are not considering "an error [that] may be more freely disregarded [because]  the evidence of defendant's guilt was overwhelming, since in  such a case the outcome would almost surely have been the  same despite the error."  Charles A. Wright, 3A Fed. Prac. & Proc. Crim.2d S 854 (1982).  If we are willing to take into  consideration the length of jury deliberations in our harmless  error review, see Dallago v. United States, 427 F.2d 546, 559  (D.C. Cir. 1969) ("The jury deliberated for five days, and one  would expect that if the evidence of guilt was overwhelming  the jury would have succumbed much sooner."), surely we  must consider the import of the hung jury.


32
Under these circumstances, I would remand for a new trial.



Notes:


1
 The majority does not contend-nor could it-that the first trial's  hung jury is irrelevant.  See Maj. Op. at 1311 n.10.  Combined with  the weakness of the government's case it should trouble the majority as much as it does me.


