                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2007

USA v. Hugh
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4260




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                                                                     NOT PRECEDENTIAL


                           IN THE UNITED STATES COURT
                                    OF APPEALS
                               FOR THE THIRD CIRCUIT


                                       NO. 05-4260


                             UNITED STATES OF AMERICA

                                             v.

                                      NOLAN HUGH
                                        Appellant




                            On Appeal From the United States
                                        District Court
                          For the Eastern District of Pennsylvania
                           (D.C. Crim. Action No. 03-cr-00829)
                           District Judge: Hon. Harvey Bartle, III




                                 Argued January 17, 2007

                   BEFORE: McKEE, AMBRO and STAPLETON
                               Circuit Judges

                              (Opinion Filed June 14, 2007 )




Patrick L. Meehan
United States Attorney
Robert A. Zauzmer
Assistant U.S. Attorney
Jennifer A. Williams (Argued)
Paul G. Shapiro
Assistant U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106
 Attorneys for Appellee

Maureen K. Rowley
Chief Federal Defender
David L. McColgin
Assistant Federal Defender
Robert Epstein (Argued)
Assistant Federal Defender
601 Walnut Street
The Curtis Center - Suite 540 West
Philadelphia, PA 19106
 Attorneys for Appellant




                                OPINION OF THE COURT




STAPLETON, Circuit Judge:




      Appellant Nolan Hugh was convicted by a jury of conspiracy to interfere with

interstate commerce by robbery, interference with interstate commerce by robbery, and

using a gun during a crime of violence. He was sentenced to 180 months of

imprisonment, and this appeal followed. We will affirm.

      The teller at the check cashing store that was robbed by two men testified for the



                                            2
government. On direct, she gave a detailed account of the robbery itself and of her

subsequent identification of Hugh in a police photo spread as the “second robber”—the

robber who had stopped by the store two hours before he reappeared during the robbery.

She said, among other things, that Hugh had asked for change for a $5 bill when he first

came to the store. On cross-examination, defense counsel showed her a two-page police

“Investigation Interview” she had given to the police on the day of the robbery and asked

if she did not there say she could not remember why Hugh had first come to the store.

The witness acknowledged the conflict. The two-page interview, which in response to

questions from an investigating officer provided an account of the entire robbery episode,

had been marked Defendant’s Exhibit D-1-A for identification (hereafter “D-1-A”).1 Its

contents had not been referred to earlier in the trial. Although the investigating officer

testified in response to questions from defense counsel that he prepared a report of the

interview, the contents of that report were not subsequently referred to in the testimony.

D-1-A was never offered into evidence.

       During his closing argument, defense counsel, in the course of arguing that the

photo spread had been unduly suggestive, informed the jury that the teller in her interview

on the day of the robbery had described the second robber as having a “Muslim type

beard.”



   1
    The second page of the record of the interview was marked Defendant’s Exhibit D-1-
B for identification. However, the entire exhibit for identification will be referred to
herein as “D-1-A.”

                                              3
         Following the Court’s charge to the jury, defense counsel asked that D-1-A and

another document be sent out to the jury room with the jury. The government pointed out

that they had not been moved into evidence and that, if they had been, the government

would have been objected to their admission as hearsay. The Court declined to send the

exhibits out with the jury, stating: “[T]hey were not moved into evidence. So they will

not go out.” App. at 528.

         After the jury retired and the Court returned from a recess, it further explained to

defense counsel why D-1-A was hearsay:

                 The other document is D-1A, which is called an Investigation
         Interview Record dated May 24, ’03, which is a series of questions put to
         Alyia Hason, and her answers, which were typed up by the detective and
         signed by Ms. Hason. That, of course, was a statement made by a witness,
         other than while testifying here at the trial or hearing. This does not come
         within the exception set forth in rule 801[(d)], which defines statements
         which are not hearsay. And while under certain circumstances prior
         statements of witnesses may be admitted into the record, and are not
         deemed to be hearsay, this document does not come within the definitions
         set forth in 801[(d)(1)].2



   2
       Federal Rules of Evidence 801(c) and 801(d)(1) provide as follows:

                (c) Hearsay. “Hearsay” is a statement, other than one made by the
         declarant while testifying at the trial or hearing, offered in evidence to
         prove the truth of the matter asserted.
                (d) Statements which are not hearsay. A statement is not hearsay
         if –
                        (1) Prior statement by witness. The declarant testifies
                at the trial or hearing and is subject to cross-examination
                concerning the statement, and the statement is (A)
                inconsistent with the declarant’s testimony, and was given
                under oath subject to the penalty of perjury at a trial, hearing,

                                                4
              First of all, it doesn’t come within rule 801[(d)(1)(A)], since it is not
       given under oath. It does not come within the definition of 801[(d)(1)(B)]
       because it’s not being offered as a statement consistent with the declarant’s
       testimony, and it is not offered to rebut an express or implied charge against
       the declarant of recent fabrication or improper influence or motive.
              And again, neither of these documents comes within any exception
       of the hearsay rule. So therefore, again, while this document was used for
       impeachment purposes during the examination of Ms. Hason, it’s not
       substantive evidence and will not be admitted.

App. at 530-31.

       After reaffirming its ruling that the statement was not admissible as “substantive

evidence,” the Court added that “even if it’s somehow admissible at this point, I think by

sending it out to the jury would give undue weight to that statement.” App. at 532.

       At some point during the Court’s discussion of this issue with counsel, the jury

sent a note to the Court requesting that it be provided with a copy of D-1-A and a police

investigation report of the robbery. The Court responded:

              Members of the jury, under our rules of evidence, I will not be able
       to send those statements out with you, and you’re just going to have to
       remember the testimony that was given during the trial, and of course the
       demonstrative exhibits that you have. Thank you.

App. at 532-33.

       Before us, Hugh insists that the District Court abused its discretion by not




              or other proceeding, or in a deposition, or (B) consistent with
              the declarant’s testimony and is offered to rebut an express or
              implied charge against the declarant of recent fabrication or
              improper influence or motive, or (C) one of identification of a
              person made after perceiving the person; . . .

                                              5
reopening the evidence, admitting D-1-A, and sending it out to the jury. We find no

abuse.

         First, as the foregoing account indicates, the defense failed to offer D-1-A into

evidence and did not provide an excuse for not doing so. As a result, with one minor

exception regarding the teller’s memory of the pretext for the second robber’s initial

appearance, the significance of the contents of that two page document was something

that the government had no occasion to address through testimony, exhibits, or comments

of counsel in closing. In a letter to the court, the defense calls our attention to several

cases in which courts of appeals have affirmed the decision of a district court to reopen

the record in a case after both parties had rested. See United States v. Boone, 437 F.3d

829, 837 (8th Cir. 2006); Duong v. McGrath, 128 Fed. Appx. 32, 34 (9th Cir. 2005) (non-

precedential); United States v. Ramirez-Gonzales, 116 Fed. Appx. 369, 372 (3d Cir. 2004)

(non-precedential); United States v. Mojica-Baez, 229 F.3d 292, 300 (1st Cir. 2000);

United States v. Wilcox, 450 F.2d 1131, 1144 (5th Cir. 1971); United States v. Schartner,

426 F.2d 470, 475 (3d Cir. 1970); United States v. Duran, 411 F.2d 275, 277 (5th Cir.

1969) In none of those cases, however, did the court of appeals grant what Hugh asks

from this court—a decision reversing the district court’s decision not to reopen a case.

There is good reason for this. Our precedents and those of other courts of

appeals—including those that Hugh cites to us—have consistently held that a district

court enjoys broad discretion regarding whether to reopen the record. Boone, 437 F.3d at



                                               6
836; United States v. Coward, 296 F.3d 176, 180 (3d Cir. 2002) (drawing an analogy

between reopening a trial record after the parties have rested and reopening the record of

a suppression hearing on remand); United States v. Blankenship, 775 F.2d 735, 741 (6th

Cir. 1985); Wilcox, 450 F.2d at 1143; Duran, 411 F.2d at 277. We have also cautioned

“that courts should be extremely reluctant to grant reopenings.” Coward, 296 F.3d at 180

(quoting United States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000)); Wilcox, 450 F.2d at

1143-44. Under the circumstances of this case, where the defense offered no excuse for

failing to move the exhibit into evidence and the prosecution had no occasion to address

it,3 we cannot say that the district court abused its discretion by not admitting it at the late

stage at which it was offered.

       Second, we perceive no error in the District Court’s ruling that D-1-A was

inadmissible hearsay. When the defense finally focused the Court’s attention on its desire

to get D-1-A to the jury, at no point did it offer less than the entire exhibit and at no point

did it refer the Court to the two rules of evidence it now relies upon to support D-1-A’s

admissibility. This is important because it is clear from the record that the Court

understood the defense to be seeking to get the entire statement before the jury. From this

perspective, it is clear both that the granting of this request would have involved the



   3
    We have admonished prosecutors for commenting during closing argument on facts
not in evidence, including exhibits marked for identification but not entered into
evidence. Gov’t of Virgin Islands v. Rosa, 699 F.2d 121, 125-26 (3d Cir. 1983); United
States v. Newman, 490 F.2d 139, 147 (3d Cir. 1974); United States v. LeFevre, 483 F.2d
477, 479-80 (3d Cir. 1973).

                                               7
admission of hearsay and that neither of the now cited rules were relevant.

          D-1-A consists of a detective’s two-page account of what he understood the teller

to be saying as he questioned her about her experience on the day of the robbery. It is

clearly hearsay as defined in Fed. R. Evid. 801(c) and clearly does not come within any of

the three exceptions carved out by Rules 801(d)(1)(A), (B) or (C). As the District Court

observed, D-1-A did not come within the scope of (A) because it was not given under

oath or (B) because it was not offered as a prior consistent statement. While Hugh now

insists that D-1-A was admissible under (C), only one answer to one question in this two-

page document can fairly be characterized as a statement “of identification of a person

made after perceiving the person.” 4 See United States v. Brink, 39 F.3d 419, 424-26 (3d

Cir. 1994). Given the failure to call this single answer or Rule 801(d)(1)(C) to the

Court’s attention, we cannot fault the Court for viewing D-1-A as hearsay.

          The other rule relied upon before us for the first time is Rule 612 relating to

writings “Used to Refresh Memory.” 5 Hugh insists that the teller acknowledged


   4
   The teller’s answer to a request for a description of the “second male” was as follows:
             He was short. He was about 5’5 and a darker brown skin. He had a
      mustache and a Muslim type beard. He was wearing a dark colored
      windbreaker with a yellow shirt underneath with some black printing on it.
      He was wearing loose pants. They were dark colored, either khakis or
      jeans. He was also thin. He was younger, between 30-35.
App. at 541.
   5
       Federal Rule of Evidence 612 provides:
                Except as otherwise provided in criminal proceedings by section
         3500 of title 18, United States Code, if a witness uses a writing to refresh
         memory for the purpose of testifying, either –

                                                 8
reviewing D-1-A the day before she testified “to prepare for testifying” and, accordingly,

that it “could be admitted . . . in its entirety under Rule 612(2).” Br. Appellant at 30. It is

not at all clear to us that the teller acknowledged using D-1-A to refresh her recollection,6

but we assume for present purposes that she did.

       Because D-1-A was not offered under Rule 612, the District Court never had the

opportunity to exercise its discretion regarding the “interests of justice” and, for that

reason alone, we would be reluctant to find that it had abused its discretion. Even if the

Court’s attention had been called to Rule 612 and it had declined to let D-1-A go to the


                       (1) while testifying, or
                       (2) before testifying, if the court in its
                       discretion determines it is necessary in the
                       interests of justice,
       an adverse party is entitled to have the writing produced at the hearing, to
       inspect it, to cross-examine the witness thereon, and to introduce in
       evidence those portions which relate to the testimony of the witness. If it is
       claimed that the writing contains matters not related to the subject matter of
       the testimony the court shall examine the writing in camera, excise any
       portions not so related, and order delivery of the remainder to the party
       entitled thereto. Any portion withheld over objections shall be preserved
       and made available to the appellate court in the event of an appeal. If a
       writing is not produced or delivered pursuant to order under this rule, the
       court shall make any order justice requires, except that in criminal cases
       when the prosecution elects not to comply, the order shall be one striking
       the testimony or, if the court in its discretion determines that the interests of
       justice so require, declaring a mistrial.
   6
    The record reflects that the prosecutor gave the witness documents to review and that
she read “not all of them, but . . . a few on Thursday.” App. at 216. The teller’s statement
that she thought she reviewed “the paper you just had here . . . yesterday morning,” App.
at 217, may or may not be a reference to D-1-A. Because it was never referred to Rule
612, however, the District Court had no occasion to determine whether the witness did or
did not refresh her recollection with D-1-A before trial.

                                               9
jury, however, we still would not find abuse. What the defense wished to get before the

jury from D-1-A was the description of the second robber given by the teller to the police

on the day of the robbery. As Hugh’s brief before us explains, “[W]hile defense counsel

accurately referred to the document during closing argument – that Ms. Hason described

robber 2 as having a Muslim beard – counsel’s statement could not be considered as

evidence of that fact by the jury.” Br. Appellant at 31. Rule 612 was not an appropriate

vehicle, however, to remedy this situation.

       Rule 612 provides for the introduction of a writing used to refresh memory prior to

trial at the court’s discretion because the “power of suggestion embodied in a writing can

create a false memory,” which the witness may be “unable to distinguish from that based

on actual perception.” 28 Charles Alan Wright & Victor James Gold, Federal Practice &

Procedure § 6182, at 443-44 (1993). Accordingly, the right conferred by Rule 612 “‘to

introduce in evidence those portions which relate to the testimony of the witness’ . . .

simply means the writing may be admitted on the question of the witness’ credibility and

is not thereby made admissible for other purposes. If offered for some other purpose,

different rules would be applicable, such as those regulating hearsay and the use of

copies.” 28 id. § 6183, at 455-56.

       Had the District Court been referred to Rule 612 and advised of why it was being

offered, the denial of the application would not have been an abuse of discretion. D-1-A

was not being offered to show that anything the teller had testified to had been influenced



                                              10
by her refreshing her recollection with the description of the second robber. Rather, it

was being offered as “substantive evidence,”in the Court’s words, – i.e., offered for the

truth of the detective’s report that the teller described the second robber as having a

“Muslim beard.” If the defense wished to argue, as counsel did in closing, that the police

had structured the photo spread so that only one individual would fit the description given

by the teller, defense counsel had a full opportunity to secure competent evidence of the

teller’s description from the teller and from the detective who also testified. D-1-A when

offered for this purpose, however, was hearsay.

       Having concluded that the District Court did not abuse its discretion in finding D-

1-A inadmissible when and as offered to it, we find it unnecessary to address Hugh’s

challenge to the District Court’s ruling that if D-1-A were admissible it should

nevertheless not be given to the jury because of the potential for it being given undue

weight.

       The judgment of the District Court will be affirmed.7




   7
     Appellant’s brief also suggests for the first time that D-1-A should have gone to the
jury under the authority of Rule 613(b) pertaining to conditions for the admissibility of
prior inconsistent statements. The only referenced inconsistent statement in D-1-A is the
teller’s statement that she did not remember the pretext for the second robber’s initial visit
which is said to conflict with her testimony that she now remembers he was asking for
$5.00 in change. Even if the defense had cited this rule and offered only the single
sentence of D-1-A, i.e., “I don’t remember what he asked for, but he didn’t cash a check,”
we would find no abuse in declining to reopen the record for such an inconsequential
matter, particularly since the teller acknowledged the conflict.

                                             11
                        United States v. Nolan Hugh
                                No. 05-4260
________________________________________________________________________

AMBRO, Circuit Judge, dissenting.

       Two men robbed a store. The single eyewitness, Alyia Z. Hasan, gave police a

statement in which she described one of the robbers as having “nice hair” and a “Muslim-

type beard.” Attempting to determine the identity of this robber, the police later presented

Hasan with a photographic “line-up” that appeared to include only two or three

individuals fitting the description she earlier gave. At trial, largely based on deficiencies

in the suggestive line-up, defense counsel vigorously challenged whether the defendant,

Nolan Hugh, was one of the robbers. By mistake, the form on which Hasan’s description

of the robbers was recorded, marked as exhibit D-1-A, was not introduced in evidence;

however, it was extensively referenced—without Government objection—during defense

counsel’s closing argument. Soon after the jury retired to deliberate and the physical

evidence was assembled for its review, the parties discovered the error. As one might

expect, defense counsel moved to reopen the record so that exhibit D-1-A could be

introduced in evidence and sent to the jury. The District Court denied the motion, ruling

that admitting it would invite the jury to give it “undue weight.” During deliberations, the

jury specifically requested to see exhibit D-1-A, but the District Court refused. I believe

that this was reversible error. By ruling otherwise, and with citation to almost none of the

relevant law, the majority makes abuse-of-discretion review tantamount to no review at



                                              12
all. I respectfully dissent.

                                 I. The Legal Framework

       Despite the impression one might get from the majority opinion, “[t]here is no

iron-bound, copper-fastened, double-riveted rule against the admission of evidence after

both parties have rested upon their proof and even after the jury has entered upon its

deliberations.” United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985); see, e.g.,

Dibella v. Hopkins, 403 F.3d 102 (2d Cir. 2005) (affirming district court’s grant of a

motion to reopen); United States v. Smith, 42 F.3d 1404 (9th Cir. 1994) (table decision),

text at 1994 WL 680999 (same); United States v. Green, 757 F.2d 116 (7th Cir. 1985)

(same); United States v. Carter, 569 F.2d 801 (4th Cir. 1977) (same); Mo. Pac. Ry. Co. v.

Oleson, 213 F. 329 (8th Cir. 1914) (same); Alaska United Gold Mining Co. v. Keating,

116 F. 561 (9th Cir. 1902) (same); Commercial Travelers’ Mut. Acc. Ass’n v. Fulton, 93

F. 621 (2d Cir. 1899) (same). Our only task, therefore, is to determine whether the

District Court abused its discretion in refusing to allow Hugh to do so in the context of

this case. Anzano v. Metro. Life Ins. Co., 118 F.2d 430, 435 (3d Cir. 1941). And though

the majority chides Hugh for failing to cite cases that “grant[ed] what [he] asks from this

[C]ourt—a decision reversing the [D]istrict [C]ourt’s decision not to reopen a case,” Maj.

Op. at 6 (emphasis in original), it is clear that such cases do exist, see, e.g., United States

v. Parker, 73 F.3d 48 (5th Cir. 1996), vacated and reh’g en banc granted, 80 F.3d 1042

(5th Cir. 1996) (en banc), reinstated in relevant part, 104 F.3d 72 (5th Cir. 1997) (en



                                               13
banc); United States v. Walker, 772 F.2d 1172 (5th Cir. 1985); United States v. Larson,

596 F.2d 759 (8th Cir. 1979).8

       The framework for analyzing questions of this sort is well-stated in United States

v. Thetford:

       In exercising its discretion [when deciding whether to reopen the record],
       the court must consider the timeliness of the motion, the character of the
       testimony, and the effect of the granting of the motion. The party moving
       to reopen should provide a reasonable explanation for the failure to present
       the evidence in its case-in-chief. The evidence proffered should be
       relevant, admissible, technically adequate, and helpful to the jury in
       ascertaining the guilt or innocence of the accused. The belated receipt of
       such testimony should not “imbue the evidence with distorted importance,
       prejudice the opposing party’s case, or preclude an adversary from having
       an adequate opportunity to meet the additional evidence offered.”

676 F.2d 170, 182 (5th Cir. 1982) (quoting Larson, 596 F.2d at 778).9 “The most


   8
     In substantively addressing this statement by the majority, I perhaps give it more
treatment than it deserves. All that the majority accomplishes by it is to set up and then
knock down a strawman. The real story is this: shortly before oral argument, Hugh
submitted a letter to our Court pursuant to Federal Rule of Appellate Procedure 28(j) that
cited several cases in which the Government had been allowed to reopen the record after
it had rested its case. He did this in order to rebut the Government’s argument that the
District Court’s decision should be affirmed solely because exhibit D-1-A was not moved
in evidence before Hugh had rested his defense. To the contrary, argued Hugh, the cases
“clearly demonstrate” that exhibit D-1-A “was not, as a matter of law, inadmissible
because of defense counsel’s mistake in failing to move earlier for its admission.”
Nothing in Hugh’s supplemental submission purports to bolster his primary argument that
it was an abuse of discretion for the District Court not to reopen the record. That
argument, instead, is appropriately made in his opening brief, and the majority’s faulting
him for not also including it in a Rule 28(j) letter is somewhat odd.
   9
    We have approved this framework for use in the “analogous” context of whether to
allow additional evidence after a reversal and remand of the denial of a motion to
suppress. See United States v. Kithcart, 218 F.3d 213 (3d Cir. 2000); United States v.
Vastola, 915 F.2d 865 (3d Cir. 1990). Both Kithcart and Vastola cited Blankenship,

                                            14
important consideration is whether the opposing party is prejudiced by reopening.”

Blankenship, 775 F.2d at 741. Naturally, the later in the proceedings the motion is made,

the more likely that the non-moving party will be prejudiced. See id. To repeat, though,

“[m]otions to reopen have been granted after both parties have rested.” Larson, 596 F.2d

at 778 (citing United States v. Barker, 542 F.2d 479 (8th Cir. 1976)); see Dibella, 403

F.3d at 119–21 (reopening the record during closing arguments); Smith, 1994 WL

680999, at *1 (admitting items “[a]fter the close of evidence”); Walker, 772 F.2d at 1177

(reopening the Government’s case-in-chief after both sides had rested); Keating, 116 F. at

565 (introducing “further evidence after both the plaintiff and defendant had announced

that the case was closed”). Additionally, and particularly pertinent to this case,

“[r]eopening is often permitted to supply some technical requirement . . . [or] some detail

overlooked by inadvertence.” Blankenship, 775 F.2d at 740.

                           II. Applying the Legal Framework

       The majority offers only two explicit reasons for finding no abuse of discretion in

this case: (1) Hugh did not offer exhibit D-1-A in evidence before resting his defense

case, see Maj. Op. at 6–7; and (2) exhibit D-1-A is inadmissible in any event, see Maj.

Op. at 7–11. As to the first reason, I agree. But so what? The very purpose of a motion

to reopen the record is to admit evidence not previously admitted. If the majority’s point

were valid, no motion to reopen should ever be granted. That, of course, cannot be the



which in turn cited Thetford and Larson.

                                             15
case, and the majority’s argument in this regard, therefore, needs no further response. As

for the majority’s second reason, I address it in Part II.A immediately below. In capsule

form, the portion of exhibit D-1-A giving Hasan’s description of the robbers is

admissible, and the majority ultimately acknowledges this. In Parts II.B–D, I go on to

address other factors relevant to the decision whether to reopen, as admissibility is not by

itself sufficient to justify reopening the record.

       A.     Admissibility

       The majority finds “no error in the District Court’s ruling that [exhibit] D-1-A was

inadmissible hearsay.” Maj. Op. at 7. I disagree, for it is hornbook law that the portion

of exhibit D-1-A giving Hasan’s description of the two robbers, including reference to

one as having “nice hair” and a “Muslim-type beard,” is not hearsay and is therefore

admissible. See F ED. R. E VID. 801(d)(1)(C) (“A statement is not hearsay if . . . [t]he

declarant testifies at the trial . . . and is subject to cross-examination concerning the

statement, and the statement is . . . one of identification of a person made after perceiving

the person . . . .”); United States v. Brink, 39 F.3d 419, 424–26 (3d Cir. 1994);

M CC ORMICK ON E VIDENCE § 251, at 385–86 (John W. Strong et al., eds., 5th ed. 1999).

The majority admits as much. See Maj. Op. at 8 (“[O]nly one answer to one question in

[exhibit D-1-A] can fairly be characterized as a statement [of prior identification].”).

       For our purposes, the discussion on admissibility should end there. But instead,

the bulk of the majority’s discussion attempts to explain why Hugh effectively waived



                                               16
any claim to the admissibility of exhibit D-1-A by defense counsel’s “failure to call this

single answer or Rule 801(d)(1)(C) to the [District] Court’s attention.” Maj. Op. at 8.

There are several problems I have with this analysis, not the least of which is the

questionable relevance of a waiver-type argument in the first place. The alleged error in

this case is not so much about admissibility, but rather the District Court’s refusal to

reopen the record. Our review, therefore, is not the same as when we consider typical

evidentiary rulings as to admissibility, where a defendant’s waiver triggers plain error

review. Instead, we review here for an abuse of discretion in the denial of a motion to

reopen the record, in which the only requirement at this step of the analysis is that the

exhibit be admissible in the abstract. Concerns over timeliness and the adequacy of

counsel’s advocacy are addressed by other factors set out in Thetford and Larson.

Waiver, therefore, cannot have a determinative effect on a decision of this nature, and the

majority errs in concluding otherwise.

       But even the majority’s waiver-of-admissibility argument has problems. First, the

District Court did not rest its decision refusing to reopen the record on exhibit D-1-A’s

supposed inadmissibility. Instead, when defense counsel asked the Court, “On what

ruling, Your Honor, because they’re hearsay, or because they were never submitted?”, it

replied, “I think the jury understands the statements, and I think . . . it gives undue weight

to [the] statements, even assuming that they are otherwise admissible.” That this concern

formed the basis of the Court’s ruling was confirmed later when the jury specifically



                                              17
requested to see exhibit D-1-A and a lengthy discussion between the Court and counsel

ensued. Concluding that discussion, the Court ruled:

       [Exhibit D-1-A is] not substantive evidence, and even if . . . it’s somehow
       admissible at this point, I think by sending it out to the jury it would give
       undue weight to that statement. The jury needs to consider everything [Ms.
       Hasan] said on the witness stand, and it’s their recollection of what she said
       that’s important. And I would not send it out with the jury, even if
       somehow it were admissible as substantive evidence.

In short, the majority hardly can fault Hugh for failing to raise Rule 801(d)(1)(C) when it

would not have made a difference in the Court’s decision.

       Second, when the Court and counsel did finally wrestle with the hearsay

issue—only after the denial of the motion to reopen and after the jury’s request to see

exhibit D-1-A—the Court concluded as follows:

       [Exhibit D-1-A] does not come within the exception set forth in rule 801(d),
       which defines statements which are not hearsay. And while under certain
       circumstances prior statements of witnesses may be admitted into the
       record, and are not deemed to be hearsay, this document does not come
       within the definitions set forth in 801(d)(1).
              First of all, it doesn’t come within rule 801(d)(1)(A), since it is not
       given under oath. It does not come within the definition of 801(d)(1)(B)
       because it’s not being offered as a statement consistent with the declarant’s
       testimony, and it is not offered to rebut an express or implied charge against
       the declarant of recent fabrication or improper influence or motive.

The analysis inexplicably stops there. After having addressed Rule 801(d)(1)(A) and

801(d)(1)(B), the Court never took the next logical step and considered Rule

801(d)(1)(C)—even though that is clearly the applicable provision. It is true that Hugh

never specifically raised Rule 801(d)(1)(C), but neither was he required to do so under



                                             18
our precedent. See Brink, 39 F.3d at 425 (holding it sufficient merely to argue that

“‘under the federal rules [a statement] is not hearsay.’ . . . Although [the defendant] did

not mention Rule 801(d)(1)(C) expressly, his objection was sufficiently specific to inform

the district court.”). The question whether exhibit D-1-A contained hearsay was

presented to and addressed by the District Court. That is all that is required.

        Finally, the majority faults Hugh for attempting to admit the entirety of exhibit D-

1-A (a two-page document) rather than just the small portion comprising Hasan’s

description of the robbers. See Maj. Op. at 7–8. Even if the majority is correct that the

entire exhibit is not admissible,10 Hugh’s primary concern was whether the portion

containing the description was introduced. The only reason his counsel discussed exhibit

D-1-A in his closing at all was to implore the jury to compare the photographic line-up

with the description Hasan gave to the police, and thereby conclude that the line-up was




   10
     Federal Rule of Evidence 612 permits the introduction of writings used to refresh a
witness’s recollection in preparing to testify. See F ED. R. E VID. 612(2). The majority
suggests that writings may be introduced under Rule 612 only in order to call into
question a witness’s credibility. See Maj. Op. at 10–11. If the preliminary draft of the
Federal Rules had been adopted, the majority would be correct; it provided that such
evidence is admissible “for the purpose of affecting [a witness’s] credibility.” The
revised draft, however, omitted that phrase. This revision did spawn concerns with the
apparent broadening of the Rule, but they related only to issues pertaining to privilege and
the Jencks Act and were dealt with in the Advisory Committee’s Notes. In any event,
those concerns are irrelevant here. See 28 C HARLES A LAN W RIGHT & V ICTOR J AMES
G OLD, F EDERAL P RACTICE AND P ROCEDURE, § 6181, at 432–42 (1993). Rather than being
limited to questions of credibility, the drafting history and text of Rule 612 instead
strongly suggest that it is applicable in cases such as this and, therefore, that the entirety
of exhibit D-1-A is admissible.

                                              19
too suggestive to credit Hasan’s identification of Hugh. If the District Court’s concern

were truly with inadmissible hearsay portions of the document, there is no reason why the

document could not have been redacted.11

        In sum, I conclude (as does the majority) that the relevant portion of exhibit D-1-A

is admissible. It thus becomes necessary to consider other factors, such as the character

of the evidence proffered, counsel’s excuse for failing to introduce it in a timely manner,

and the prejudice that might have resulted from its untimely admission. I address these

factors in the sections that follow.

        B.     Character of the Evidence

        When evaluating the character of the proffered evidence, courts should consider

the practical problems (e.g., disruptiveness to the trial) that may result in granting a

motion to reopen, as well as what effect it would have on the entire case. See, e.g.,

Walker, 772 F.2d at 1178–79. Here, both considerations weighed in favor of Hugh’s

motion to reopen.

        First, the practical implications of reopening the record in this case were virtually

nil. Exhibit D-1-A had already been authenticated and could have been moved in



   11
     The majority would presumably fault Hugh as well for not raising redaction as a
possible solution. The simple response, as explained earlier, is that the District Court did
not base its ruling on D-1-A’s supposed hearsay character, but rather that the jury would
give it “undue weight.” Redaction, of course, would not cure that supposed infirmity, and
Hugh should not be faulted for failing to mention it. Moreover, district courts should not
need the assistance of counsel to suggest that a document be redacted to exclude
inadmissible hearsay—an easy and obvious remedy in situations like this.

                                              20
evidence in a matter of seconds—and certainly in a shorter amount of time than the

District Court spent concluding that an admissible document would not be admitted by

reopening the record. The situation here (involving a single additional document) is

similar in character to that presented in Smith, see 1994 WL 680999, at *1 (allowing gift

certificates to be admitted after the close of evidence), or Dibella, see 403 F.3d at 119

(reopening the record to introduce a time-sheet). Moreover, admitting exhibit D-1-A

would have been less disruptive than reopening the record for additional testimony, which

other courts have allowed. See, e.g., Blankenship, 775 F.2d at 738, 741 (admitting the

testimony of three additional witnesses); Green, 757 F.2d at 119 (one additional witness);

Oleson, 213 F. at 331 (same); Keating, 116 F. at 565 (same); Fulton, 93 F. at 623

(multiple expert witnesses).

        Second, the importance of Hasan’s description of the second robber as having

“nice hair” and a “Muslim-type beard” to Hugh’s defense is undeniable. In a trial at

which the major point of contention was the proper identification of the suspect, exhibit

D-1-A certainly had the potential to cast significant doubt on the validity of the only

formal identification of Hugh that Hasan ever made.12 Specifically, Hugh’s counsel

argued in his closing statement that, given Hasan’s description, the photographic line-up

from which she selected Hugh as one of the robbers was unduly suggestive:




   12
   Tellingly, the Government never asked Hasan to make an in-court identification of
Hugh as the second robber.

                                             21
              Well, you’ll look at her report, ladies and gentlemen, I’ve marked it
      as Exhibit [D-1-A], and in that report, ladies and gentlemen, you read it.
      She says he had a Muslim-type beard. It’s got a little chart for you here.
      Because she also said he had nice hair. Of the eight people, we have to find
      the Muslim guy with nice hair.
              Well, ladies and gentlemen, let’s get rid of the non-Muslim beards,
      shall we? Guy number one definitely has a Muslim-type beard. Guy
      number two, my client, definitely has a Muslim-type beard. Guy number
      three, oh, that ain’t a Muslim-beard, ladies and gentlemen. Guy number
      four, he has a Muslim-type beard. Guy number five, ah you could say that
      was Muslim. . . .
              ...
              . . . Guy number six, that is not a Muslim-type beard. Guy number
      seven, possibly. And guy number eight, that is definitely not a Muslim-type
      beard. I will let you make these opinions when you go in there.
              So now we’ve gone from eight to . . . five. Well, still, those odds
      aren’t bad. 20 percent chance, okay? Well let’s look at the guy. She said
      he had nice hair. She remembers the nice hair, remember that?
              Who’s got nice hair here? He doesn’t have hair, so he’s not going to
      be getting Mr. Nice Hair award. He’s got very well groomed hair. This
      guy, we’ve already taken, yeah, we’ll give him [nice] hair. He doesn’t even
      have hair on that picture, ladies and gentlemen. Okay. This guy, his hair is
      so short, how could you say he has nice hair?
              Ladies and gentlemen, I have conducted what? The process of
      elimination.
              ...
              I would ask you, ladies and gentlemen, to look at the page in my
      hand right now, it says, “Has[a]n.” And I wrote process of elimination,
      because that is what she testified to. She went through a process of
      elimination. Just like I did. We didn’t even have to see the man to do that.
      And I’ve gone from eight to two.
              And guess what she also said? He was very nicely groomed. He had
      beautiful hair. Of those two people, ladies and gentlemen, who gets the
      nice groom award? I’ll let you be the judge to that.

      Our Court has often had to examine the problems created by suggestive line-ups.

See, e.g., United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006); Thomas v. Varner, 428

F.3d 491 (3d Cir. 2005). More generally, we have also noted that special care must be

                                           22
taken in contexts like ours: “[T]he evidence was identification evidence. The dangers

inherent in such testimony have many times been commented upon. Foster v. California,

394 U.S. 440 (1969); Simmons v. United States, 390 U.S. 377 (1968); United States v.

Wade, 388 U.S. 218 (1967). Courts must scrutinize this type of evidence especially

carefully; juries must to the same.” United States v. Rabb, 453 F.2d 1012, 1014 (3d Cir.

1971) (second emphasis added).

        Rather than acknowledge the significance that exhibit D-1-A might properly play

in the jury’s decision, the District Court instead ruled that sending Hasan’s statement to

the jury would give it “undue weight.” This conclusion misses the mark.13 The situation

here is analogous to a jury request to have portions of testimony read back, which we

have previously addressed. In Rabb we noted the possibility that “a reading of only one

portion of the testimony may cause the jury to give that portion undue emphasis,” but

nevertheless concluded that

        [r]eading the transcript of the testimony of two . . . witnesses would not
        necessarily emphasize it or preclude consideration by the jury of the other
        testimony. In these circumstances, it must be assumed that the jury asked
        for a reading of this testimony because it was in doubt or in disagreement
        upon its proper evaluation.

Id. at 1013–14 (emphasis added). More generally, we went on to note with approval the

position advanced by the American Bar Association in its Standards Relating to Trial by




   13
    The majority avoids addressing the issue by erroneously concluding that the District
Court did not base its decision on this ground. See Maj. Op. at 11.

                                             23
Jury, ABA P ROJECT ON M INIMUM S TANDARDS OF C RIMINAL J USTICE § 5.2 & cmt. at

134–38, which suggests that courts accede to the reasonable requests of jurors to review

specific evidence. Rabb, 453 F.2d at 1014–15 & n.1. As the Supreme Court of New

Jersey has observed,

       [w]hen a jury retires to consider their verdict, their discussion may produce
       disagreement or doubt or failure of definite recollection as to what a
       particular witness said in the course of his testimony. If they request
       enlightenment on the subject through a reading of his testimony, in the
       absence of some unusual circumstance, the request should be granted. The
       true administration of justice calls for such action. Where there is a doubt
       in the minds of jurors as to what a witness said, it cannot be prejudicial to
       anyone to have that doubt removed by a rehearing of his testimony. There
       is no need to be chary for fear of giving undue prominence to the testimony
       of the witness. If under our system of trials a jury is to be considered
       intelligent enough to be entrusted with powers of decision, it must be
       assumed they have sense enough to ask to have their memories stimulated
       or refreshed only as to those portions of the testimony about which they are
       in doubt or disagreement.

State v. Wolf, 207 A.2d 670, 675–76 (N.J. 1965); see also United States v. Hans, 738 F.2d

88, 93 (3d Cir. 1984) (noting that a jury’s request to see certain exhibits indicates their

importance); cf. United States v. McCarthy, 961 F.2d 972, 978 (1st Cir. 1992) (affirming

trial judge’s decision not to send an exhibit back to the jury, but noting that “[t]he jury did

not request it”). The jury’s request here similarly demonstrates the importance of exhibit

D-1-A in the context of this case, and it should have weighed heavily in favor of granting

Hugh’s motion to reopen. For trial-by-jury to work properly, juries must be allowed the




                                              24
tools with which to do their job.14

        C.     Explanation for the Failure to Introduce

        Hugh’s counsel did not offer an explicit justification for his failure to put exhibit

D-1-A in evidence, as the majority notes. See Maj. Op. at 6. But even a cursory

examination of the trial transcript tells why: Hugh’s counsel did not understand that

simply marking an exhibit for identification does not make it part of the evidentiary

record. See Appellant’s App. at 528 (“[THE COURT]: [Exhibit D-1-A was] not moved

into evidence. So [it] will not go out. [DEFENSE COUNSEL]: Your Honor, I labeled

[it] as [a] defendant’s exhibit and gave [it] a number. THE COURT: Well, that doesn’t

mean [it is] in evidence.”). Though this mistake was elementary, it was honest. It also




   14
     It is important to bear in mind that a court’s proper concern is not the added weight a
jury may attach to a given piece of evidence in the abstract, but rather whether such added
weight would be “undue.” The evil to be avoided in sending exhibits to the jury is the
possibility that the jurors will believe that the judge deems a certain piece of evidence to
be particularly significant—an evaluation that is instead within the jury’s sole purview.
The valid concern present when courts usually decide whether to send an exhibit to the
jury, therefore, is absent when the jury itself requests to see it. Here, had the District
Court simply admitted exhibit D-1-A and sent it back to the jury at the beginning of
deliberations along with all the other exhibits, there would have been no possibility that
the statement could have been given “undue” weight. Moreover, even if there were such
a possibility, a cautionary instruction could have allayed most concerns in that regard.
See Larson, 596 F.2d at 779 (reversing the defendant’s conviction based on the district
court’s decision not to reopen the record for additional testimony, noting that “even
assuming that the testimony might have derived undue emphasis from its appearance
subsequent to all parties resting, a cautionary instruction by the trial judge might have
remedied that potential problem”); see also Parker, 73 F.3d at 54 (“It is clear to us that,
with the proper cautionary instruction, the jury could have adequately weighed the
additional testimony.”).

                                               25
presents a paradigm case for the proper use of a motion to reopen. See Blankenship, 775

F.2d at 740 (noting that reopening the record is often used to admit evidence “overlooked

by inadvertence”); cf. Parker, 73 F.3d at 54 (“[T]he excuse given, that defense counsel

simply made a mistake, seems reasonable and does not appear to be a subterfuge for

seeking delay or unfair advantage.”); Carter, 569 F2d at 803 (finding no abuse of

discretion where the court allowed the Government to reopen the record and present

evidence “inadvertently omitted from the case in chief”). Just as the Government can be

permitted to reopen the record and introduce evidence necessary to support a conviction

that was mistakenly not presented in its case-in-chief, see Blankenship, 775 F.2d at 740

(referring to evidence needed to establish proper venue), so too should the defendant be

allowed to do the same when inadvertence has caused him to omit a document significant

to his defense.

       D.     Prejudice to the Government

       The majority mentions the prejudice prong of the analysis—the “most important

consideration,” Blankenship, 775 F.2d at 741—only in passing and only in general. See

Maj. Op. at 6 (“[T]he government had no occasion to address [exhibit D-1-A] through

testimony, exhibits, or comments of counsel in closing.”). The Government itself does

not address the issue at all. But there is no mystery why this is so: despite the majority’s

conclusory statement, there would have been no prejudice to the Government in

reopening the record to admit exhibit D-1-A.



                                             26
        Both Hasan and the police officer that recorded her statement were the

Government’s own witnesses. As such, the Government can hardly be heard to

argue—and it never has—either that it did not know about Hasan’s eyewitness

description of the robbers or that the descriptions were somehow inaccurate. Cf.

Blankenship, 775 F.2d at 741 (affirming the grant of motion to reopen, saying that the

non-moving party “could not have been surprised by the evidence”). Moreover, the jury

had already been told of exhibit D-1-A’s contents. Cf. Smith, 1994 WL 680999, at *1

(affirming grant of motion to reopen when the district judge had reasoned thus: “[T]here

has already been testimony concerning [the evidence], so I will admit [it]. . . . I mean,

the jury has been told about [it]. . . . I don’t think there is any prejudice to it. And the

jury might very well wonder, want to see [it], and then we are left with that problem.”).

The majority’s claim that there was no occasion for the Government to address exhibit D-

1-A in closing is simply not true. After defense counsel argued extensively during his

closing statement that the jury should look critically at exhibit D-1-A (without

Government objection 15 ), the Government had full opportunity to respond in its rebuttal

closing statement. It did not. Given this, it is difficult to imagine how the Government




   15
     The Government now attempts to characterize its failure to object as an exercise in
proper courtroom etiquette. See Br. of Appellee at 14 n.2 (“[R]ather than interrupt
defense counsel’s closing argument, the [G]overnment allowed him to complete his
closing without interruption, and then objected to sending the Interview Record to the
jury as soon as given the opportunity by the court.”). We normally call such silence, no
matter how polite, a “waiver.”

                                              27
would have been prejudiced by the introduction of exhibit D-1-A. The fact is that no

prejudice was possible here, and the majority does not seriously attempt to argue

otherwise.

                                       III. Conclusion

        Considering all of the factors relevant to this decision, the District Court should

have reopened the record and admitted exhibit D-1-A. It was admissible; reopening the

record to admit it would not have disrupted the trial; it would have provided the jury with

critically important identification evidence—evidence that the jury specifically requested

defense counsel’s failure timely to introduce it was an honest (if elementary) mistake; and

there would have been no appreciable prejudice to the Government in admitting it. In

short, motions to reopen exist precisely for cases like this, and I believe the District Court

abused its discretion in denying Hugh’s request.16 Perhaps most notable, though, is that

the Assistant U.S. Attorney trying this case never objected to Hugh’s motion to reopen in



   16
     Because I conclude that the District Court erred, I must also decide whether this was
harmless. F ED. R. C RIM. P. 52(a); Brink, 39 F.3d at 426. An error is harmless when “it is
highly probable that [it] . . . did not contribute to the jury’s judgment of conviction.”
United States v. Janotti, 729 F.2d 213, 220 n.2 (3d Cir. 1984). That is obviously not so in
this case. Most significantly, the jury specifically requested to see exhibit D-1-A; based
on that alone, one can only conclude that the jury’s decision might have been different
had its request been granted. Moreover, it would not be an overstatement to say that the
balance of the Government’s case against Hugh was weak. The other primary evidence
against him included (1) a partial fingerprint that a barely trained examiner using
discredited methods determined matched Hugh’s and (2) testimony from Hugh’s
girlfriend (who is schizophrenic and prone to hallucinations) about his supposedly (but
not very) suspicious behavior in the days after the robbery. Any error here could not be
harmless.

                                              28
the first place. It is inconceivable to me that justice was served by depriving the jury of

relevant, highly probative evidence (not to mention the additional resources that have now

been spent in defending the decision).

       It is no small matter to say that a district court’s decision was an abuse of

discretion. But the ease with which the jury’s request could have been honored and the

obvious propriety and fairness in doing so lead me to conclude that the decision not to

reopen qualifies. I would reverse Hugh’s conviction and remand this case for a new trial.

Therefore, I respectfully dissent.




                                              29
