                             District of Columbia
                              Court of Appeals

No. 14-CM-125
                                                                       JAN 14 2016
JESUS A. HERNANDEZ,
                                           Appellant,
       v.
                                                         DVM-2124-13
UNITED STATES,
                                           Appellee.

             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

       BEFORE: Fisher and McLeese, Associate Judges; and Ruiz, Senior Judge.

                                     JUDGMENT

                This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby

             ORDERED and ADJUDGED that the matter on appeal is remanded for
further inquiry into whether the prosecutor’s notes are producible as a Jencks statement.
If the trial court finds that the notes contain Jencks material, the trial court should
disclose the pertinent portion of the notes to the defense and permit the parties to brief the
question whether nondisclosure was harmless because the notes could not have been used
to seriously impeach witness, Ms. Argueta-Avila. If the trial court finds that the
nondisclosure was not harmless, the trial court should vacate the judgment and order a
new trial. If the trial court concludes that the notes do not contain Jencks material, or that
any nondisclosure was harmless, the trial court should make the notes part of the record
under seal, supplement its findings, and enter a new final judgment of conviction to
preserve Mr. Hernandez’s right to seek further appellate review.

                                           For the Court:




Dated: January 14, 2016.

Opinion by Associate Judge Roy W. McLeese.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 14-CM-125                        1/14/16

                       JESUS A. HERNANDEZ, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (DVM-2124-13)

                   (Hon. Fern Flanagan Saddler, Trial Judge)

(Argued September 25, 2015                            Decided January 14, 2016)

      Geneva G. Vanderhorst for appellant.

        Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman and Suzanne Grealy Curt, Assistant United States Attorneys, were on the
brief, for appellee.

      Before FISHER and MCLEESE, Associate Judges, and RUIZ, Senior Judge.

      MCLEESE, Associate Judge: Appellant Jesus A. Hernandez challenges his

assault conviction, arguing that the evidence was insufficient and that the trial

court failed to conduct an adequate inquiry into whether the United States was

required to disclose notes taken by a prosecutor during an interview of a
                                             2

government witness. We hold that the evidence was sufficient, and we remand for

further inquiry into the disclosure issue.




                                             I.



      The evidence at trial was as follows. At the time of the offense, Mr.

Hernandez was living with his girlfriend, Jemima Argueta-Avila. They went to a

party together, and Ms. Argueta-Avila saw Mr. Hernandez drink a beer during that

time. Ms. Argueta-Avila left without Mr. Hernandez, to visit a neighbor. After

she left, Mr. Hernandez called her on the phone more than five times over a period

of about twenty minutes, but she did not answer the calls. When Ms. Argueta-

Avila left her neighbor and went outside into an alley, she saw Mr. Hernandez,

who followed her. She ran ahead, because she was afraid that Mr. Hernandez

would be angry at her for not returning his calls. Ms. Argueta-Avila also felt angry

and wanted to get home so that the couple could talk there.



      Ms. Argueta-Avila testified that Mr. Hernandez grabbed her shirt, causing it

to tear, and pushed her, causing her to fall. Ms. Argueta-Avila suffered scrapes

and other minor injuries from the fall. She told the police that Mr. Hernandez did

not assault her, that he had grabbed her by the shirt, and that she had fallen. When
                                         3

she told the police that Mr. Hernandez did not assault her, she meant that he did

not hit her. Ms. Argueta-Avila did not see anyone else in the alley that evening.



      Mr. Andre Hawthorne testified that he saw the incident as he was walking

through the alley on the way home from work.          At first, it appeared to Mr.

Hawthorne that Ms. Argueta-Avila was trying to get around Mr. Hernandez, who

was blocking her path. When Mr. Hawthorne asked if they were all right, Mr.

Hernandez said yes but Ms. Argueta-Avila did not answer. Ms. Argueta-Avila

appeared scared to Mr. Hawthorne. Mr. Hawthorne walked past but continued to

keep an eye on the couple. He saw Mr. Hernandez’s hand on Ms. Argueta-Avila’s

arm, and Mr. Hernandez appeared to be trying to persuade Ms. Argueta-Avila to

do something. Mr. Hawthorne was concerned about what he had seen, so he called

911. While he was on the phone, watching from a distance of about sixty to

seventy feet, Mr. Hawthorne saw Mr. Hernandez choke Ms. Argueta-Avila and

then saw Ms. Argueta-Avila fall to the ground. The United States introduced a

recording of Mr. Hawthorne’s 911 call into evidence, but that recording was not

transcribed during trial and has not been made part of the record on appeal.



      Mr. Hawthorne had previously been convicted of armed robbery, robbery,

assault with a dangerous weapon, and obstruction of justice. Mr. Hawthorne never
                                        4

saw Mr. Hernandez hit, shove, or push Ms. Argueta-Avila. Mr. Hawthorne did not

speak to the police who arrived on the scene about what he had seen.



      Officer Benjamin Rubin responded to the incident within about a minute of

receiving a call about an assault in progress.    When he arrived, he saw Ms.

Argueta-Avila sitting on the ground, with Mr. Hernandez standing over her. Ms.

Argueta-Avila was pretty frantic and was shaking and crying. Her shirt was

ripped, and she had scratches on her chin and arm. Mr. Hernandez appeared calm.



      After realizing that neither Mr. Hernandez nor Ms. Argueta-Avila spoke

English, Officer Rubin called for a Spanish-speaking officer.          Officer Jose

Hernandez arrived within three minutes. Officer Hernandez testified that Ms.

Argueta-Avila was crying hysterically and had a torn shirt and scratches on her

chin and arm.    Ms. Argueta-Avila was generally unwilling to say what had

happened. Ms. Argueta-Avila did say, however, that she was very afraid of Mr.

Hernandez. She also indicated that “every time he drinks he does this.” Officer

Hernandez understood the latter statement to mean that Mr. Hernandez became

aggressive when he drank alcohol and that he had “put his hands on” Ms. Argueta-

Avila in the past. Although his testimony on the point was equivocal, Officer
                                        5

Hernandez ultimately testified that Ms. Argueta-Avila said that Mr. Hernandez did

not assault her. Officer Hernandez smelled alcohol on Mr. Hernandez’s breath.



      Based on this evidence, the trial court found Mr. Hernandez guilty. The trial

court credited Ms. Argueta-Avila’s testimony. Specifically, the trial court found

that Mr. Hernandez grabbed Ms. Argueta-Avila’s shirt and pushed her. The trial

court accepted Ms. Argueta-Avila’s explanation that, when she told the police that

Mr. Hernandez did not assault her, she meant that he had not hit her. The trial

court also explained that the testimony that Ms. Argueta-Avila felt angry did not

undermine the conclusion that she was assaulted.



      Turning to Mr. Hawthorne, the trial court found that he was an unbiased

witness. The trial court credited Mr. Hawthorne’s testimony that Ms. Argueta-

Avila had appeared frightened and that Mr. Hawthorne saw Mr. Hernandez

choking Ms. Argueta-Avila.     The trial court also relied on Mr. Hawthorne’s

statements in the 911 call that Mr. Hernandez was choking Ms. Argueta-Avila.

Finally, the trial court credited the testimony of both police officers as to Ms.

Argueta-Avila’s demeanor and injuries. After making these findings, the trial

court concluded that “the Government met its elements in showing that the
                                        6

defendant with force or violence injured the complaining witness, and did so

voluntarily, on purpose, and not by mistake.”



                                        II.



      When assessing whether the evidence at trial sufficiently supports a

conviction, we view the evidence in the light most favorable to the verdict and

defer to the fact-finder’s credibility determinations. Contreras v. United States,

121 A.3d 1271, 1276-77 (D.C. 2015). The evidence is sufficient if any rational

fact-finder could have found the elements of the crime beyond a reasonable doubt.

Id. at 1277.



      The evidence credited by the trial court sufficed to support Mr. Hernandez’s

assault conviction.   Specifically, the trial court found that Mr. Hernandez

purposely pushed and choked Ms. Argueta-Avila.         Such conduct constitutes

assault. See, e.g., Dunn v. United States, 976 A.2d 217, 220-21 (D.C. 2009)

(evidence that defendant intentionally pushed victim sufficed to support assault

conviction); McCoy v. United States, 781 A.2d 765, 768-69 (D.C. 2001) (evidence

that defendant choked victim, threatened victim with knife, and pushed victim
                                           7

down stairs supported conviction for assault with dangerous weapon). We are not

persuaded by Mr. Hernandez’s contrary arguments.



      First, Ms. Argueta-Avila’s reluctance to tell the police what happened does

not undermine the sufficiency of the evidence. Cf., e.g., Jones v. United States,

No. 13-CF-182, 2015 WL 4113369, at *16 (D.C. July 9, 2015) (“[A] witness may

be inaccurate, contradictory and even untruthful in some respects and yet be

entirely credible in the essentials of his testimony.”) (internal quotation marks

omitted); Payne v. United States, 516 A.2d 484, 493 (D.C. 1986) (per curiam)

(“[C]onflicts   created   by   a   witness’[s]   recantation,   like   other    internal

inconsistencies within a witness’[s] testimony, are factual questions for the jury to

resolve.”; jury could have found that witness recanted at trial out of fear).



      Second, the trial court reasonably accepted Ms. Argueta-Avila’s explanation

that, when she told the police that Mr. Hernandez did not assault her, she meant

that he had not hit her. Ms. Argueta-Avila’s testimony thus did not contradict the

conclusion that Mr. Hernandez assaulted Ms. Argueta-Avila.



      Third, contrary to Mr. Hernandez’s assertions that the trial court did not

make an adequate finding as to intent, the trial court explicitly found that Mr.
                                         8

Hernandez pushed and choked Ms. Argueta-Avila and injured her voluntarily, on

purpose, and not by mistake.



      Fourth, evidence that Ms. Argueta-Avila was angry during and after the

incident does not negate the evidence that Mr. Hernandez assaulted her. Cf., e.g.,

In re D.R., 96 A.3d 45, 47 n.2 (D.C. 2014) (establishing offense of assault does not

require proof that victim felt fear). In any event, there was evidence that Ms.

Argueta-Avila appeared frightened and said she was afraid of Mr. Hernandez.



      Finally, Mr. Hernandez challenges the trial court’s decision to credit Mr.

Hawthorne’s testimony, arguing that Mr. Hawthorne was impeached with prior

convictions and that his testimony with respect to the choking was not

corroborated by the testimony of other witnesses. “This court will not reverse a

trial court’s factual findings after a bench trial unless those findings are ‘plainly

wrong or without evidence to support them.’”         Contreras, 121 A.3d at 1277

(quoting D.C. Code § 17–305 (a) (2012 Repl.)) (brackets omitted); see also, e.g.,

Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007) (“[T]his court is not in a

position to substitute its judgment for that of the fact-finder when it comes to

assessing the credibility of a witness. That determination is for the fact-finder to

make and is made in large part[ ] based on factors that can only be ascertained after
                                            9

observing the witness testify.”). We see no basis to look behind the trial court’s

credibility determinations in this case.



                                           III.



      Mr. Hernandez also argues that the trial court failed to conduct an adequate

inquiry into whether the United States was required to disclose to Mr. Hernandez

notes of a prosecutor’s interview with Ms. Argueta-Avila. We agree.



                                           A.



      The Jencks Act, 18 U.S.C. § 3500 (2012), is implemented in the District of

Columbia by Superior Court Rule of Criminal Procedure 26.2. Fadul v. District of

Columbia, 106 A.3d 1093, 1096 (D.C. 2015). Rule 26.2 (a) provides that, once a

witness other than the defendant has testified on direct examination, the court upon

request must order the attorney for the party calling the witness to produce “any

statement” in the attorney’s possession relating to the subject matter of the

witness’s testimony. See also, e.g., Frye v. United States, 600 A.2d 808, 810 (D.C.

1991) (“[T]he duty of disclosure affects not only the prosecutor, but the

Government as a whole, including its investigative agencies.”) (internal quotation
                                         10

marks omitted). The definitions of “statement” include “a substantially verbatim

recital of an oral statement made by the witness that is recorded

contemporaneously with the making of the oral statement and that is contained in a

stenographic, mechanical, electrical, or other recording or a transcription thereof.”

Super. Ct. Crim. R. 26.2 (f)(2). The notes of a prosecutor’s interview with a

government witness can be subject to disclosure under the Jencks Act if the notes

are substantially verbatim and were contemporaneously taken. Rease v. United

States, 403 A.2d 322, 326-27 (D.C. 1979) (per curiam). “[T]he ‘work product’

doctrine does not shield from discovery writings, such as government attorneys’

interview notes, that are otherwise producible under the Act.” United States v.

(Jacqueline) Jackson, 430 A.2d 1380, 1385 (D.C. 1981).



      Trial courts have “considerable discretion” in administering the Jencks Act,

and we review decisions regarding the production of Jencks material for abuse of

discretion. Johnson v. United States, 800 A.2d 696, 699 (D.C. 2002). “Before we

will defer to the trial court’s ultimate ruling on production, however, the court must

conduct a proper inquiry and make relevant findings.” Lazo v. United States, 54

A.3d 1221, 1231 (D.C. 2012). A proper request for production of a statement

under the Jencks Act triggers the trial court’s “affirmative duty, either by

interrogation or by in camera inspection, to ascertain whether the statement is one
                                        11

defined by the Act itself as producible material and whether it is in the possession

of the government.” Lazo, 54 A.3d at 1232 (internal quotation marks omitted). A

party need not establish that a Jencks statement unquestionably exists to trigger a

duty of further inquiry by the court. Id. Rather, the requesting party need only

elicit testimony that an agent of the government interviewed the witness and took

notes of the conversation. Id.



                                        B.



      During the trial, defense counsel established that Ms. Argueta-Avila had met

with the trial prosecutor in preparation for her testimony and that the prosecutor

had taken notes during at least one of those meetings. When defense counsel

requested that the trial court order production of the notes as Jencks material, the

trial court declined, explaining that defense counsel had not established that the

notes were “verbatim” and thus discoverable under the Jencks Act. The trial court

also denied defense counsel’s request that the court review the notes in camera.



      The trial court asked the prosecutor several times whether the United States

was in possession of any Jencks statements, and the trial court also directed the

prosecutor to turn over any such statements. The prosecutor acknowledged that
                                         12

she had taken notes during an interview of Ms. Argueta-Avila, but denied

possessing any Jencks statements. Specifically, the prosecutor stated that her notes

were not transcripts or “continuous narrative reportings,” but rather were “selective

notations, or excerpts from oral statements” that did not constitute Jencks

statements. The trial court ultimately concluded that “it had received an assurance

from the prosecutor, who is an officer of the [c]ourt, that she did not take any notes

during her interview with [Ms. Argueta-Avila] that will satisfy the Jencks

requirement.”



      The United States acknowledges that the trial court in this case was required

to conduct an adequate inquiry into whether the prosecutor’s notes of the interview

with Ms. Argueta-Avila were subject to production under the Jencks Act. We

agree. See, e.g., Lazo, 54 A.3d at 1232. Witnesses who are being interviewed

often will not see what the interviewer writes down or, as in this case, may not

understand what is written down because of a language barrier. For that reason,

the party seeking disclosure of interview notes is not required to prove what was

written down, and rather need only show that notes were taken during the course of

an interview concerning the events of the case. Id. Once that initial showing is

made, the trial judge must make an adequate inquiry or review the notes to

determine whether they are Jencks material. Id.
                                         13



      The United States argues, however, that the trial court permissibly

concluded, after adequate inquiry, that in camera review of the notes in this case

was not necessary. We conclude otherwise.



      We view this case as largely controlled by our decision in Matthews v.

United States, 322 A.2d 908 (D.C. 1974). In that case, defense counsel established

that the prosecutor had taken notes during interviews of two government witnesses.

Id. at 909.    When defense counsel moved for production of the notes, the

prosecutor said, “all of the notes I took, none of them were verbatim. I never take

verbatim notes.” Id. The trial court denied the request for production of the notes

without reviewing the notes in camera. Id. We held that the trial court erred by

denying the request for production based on the “factually unsupported” “bare

conclusion from the prosecutor that his notes were not substantially verbatim.” Id.

at 910. As we explained,



              The trial court . . . in effect allowed the government to
              determine whether the notes were producible under the
              Act. . . . The [Act] does not vest in the government the
              unilateral power to determine without judicial
              supervision the question of whether or not the statement
              falls within the purview of the statute. When a
              controverted question . . . arises, it is for judicial
              determination with the judge acting as arbiter.
                                        14



Id. (internal quotation marks omitted). We therefore remanded the case for the

trial court to conduct a further inquiry to determine whether the prosecutor’s notes

were substantially verbatim. Id. at 910-11. We have taken a similar approach in a

number of comparable cases. See, e.g., Johnson, 800 A.2d at 698-701 (remanding

for trial court to conduct in camera review of notes taken by police officer during

interview of government witness); cf. In re S.W.B., 321 A.2d 564, 566 (D.C. 1974)

(trial court should have conducted further examination or investigation rather than

accepting prosecutor’s representation that notes were not substantially verbatim).



      In Matthews, this court distinguished the Supreme Court’s opinion in United

States v. Augenblick, 393 U.S. 348 (1969).       Matthews, 322 A.2d at 910. In

Augenblick, the Supreme Court upheld a determination that the notes of an agent’s

interview of a government witness were not producible under the Jencks Act, even

though the notes had not been reviewed in camera. Augenblick, 393 U.S. at 353-

55. In Augenblick, however, there was concrete factual information about the

notes at issue: the agent said that he “jot[ted] down a couple of rough notes.” Id.

at 354.   This court has ruled similarly in several cases involving “sketchy,”

“hasty,” or “rough” notes. See, e.g., Strickland v. United States, 389 A.2d 1325,

1328-29 (D.C. 1978) (no abuse of discretion in declining to grant a new trial based
                                         15

on nondisclosure of “portion of rough notes” that detective described as

“miscellaneous” and not verbatim).        In other cases involving police notes,

however, we have remanded for further inquiry into whether the notes contained a

Jencks statement. See, e.g., (Calvin) Moore v. United States, 353 A.2d 16, 18-20

(D.C. 1976) (remanding for determination of whether lost notes containing

description of robbers constituted Jencks statement); cf. also Johnson, 800 A.2d at

699 (“It is well established that police notes are potentially Jencks Act statements.

The mere fact that the notes may be rough does not defeat a Jencks claim, for the

form of the statement is irrelevant; the inquiry must focus on the content of the

writing and on the circumstances surrounding its making.”) (brackets, citation, and

internal quotation marks omitted); (Michael Eric) Jackson, 450 A.2d 419, 425-26

(D.C. 1982) (per curiam) (upholding trial court’s inference that lost notes of

witnesses’ statements during identification procedure were substantially verbatim;

“The requirement that the statement be ‘substantially verbatim’ is a flexible one,

and each statement must be examined in light of circumstances such as (1) the

extent to which the writing conforms to the witness’[s] language, (2) the length of

the statement as compared to the length of the interview, (3) the lapse of time

between the interview and its transcription, (4) the appearance of the substance of

the witness’[s] remarks and (5) the purpose for which the statement was taken.”).

Our cases in this area demonstrate that there is not a clear line between statements
                                          16

that are substantially verbatim and those that are not. For that reason, we conclude,

as we did in Matthews, that a trial court cannot properly deny a request for

production of a prosecutor’s notes based solely on the prosecutor’s indication that

the notes reflect an unspecified degree of selectivity. Rather, the trial court has “an

affirmative duty to determine whether [a Jencks] statement exists . . . [by

conducting] such inquiry as may be necessary[,] . . . [which] may involve an

interrogation of witnesses, . . . an in camera examination of the statement, or . . .

both.” Matthews, 332 A.2d at 910 (internal quotation marks omitted); see also id.

(noting that, “in light of the circumstances of each case,” trial judge may need to

decide “what, if any, evidence extrinsic to the statement itself may or must be

offered to prove the nature of the statement”) (internal quotation marks omitted).

Merely accepting a prosecutor’s bare conclusion is not a sufficient “interrogation”

that will satisfy the court’s affirmative duty to make its own determination whether

requested notes come within the purview of Jencks.



      Although the United States relies heavily on our decision in Lazo, we view

that case as readily distinguishable. In Lazo, we remanded for further inquiry with

respect to several potential Jencks statements. 54 A.3d at 1231-41. We upheld the

adequacy of the trial court’s inquiry in one respect, however. Id. at 1238. After a

government witness testified that a prosecutor had taken notes during an interview,
                                           17

the prosecutor who had conducted the interview represented that she had not taken

any notes during the interview. Id. We held that, “absent compelling evidence to

the contrary, when a court receives an assurance directly from the prosecutor—an

officer of the court—that she did not take any notes during her interview with a

witness, the court satisfies its duty of independent inquiry . . . .” Id.



      The critical difference between Lazo and the present case is that Lazo

involved a prosecutor’s representation as to a pure question of fact as to which the

prosecutor had personal knowledge -- whether any notes were taken. Lazo, 54

A.3d at 1238. The trial court’s reliance on that representation was in essence a

credibility determination that was bolstered by the prosecutor’s ethical obligation

of candor as an officer of the court. Id.; cf., e.g., Hilliard v. United States, 638

A.2d 698, 704 (D.C. 1994) (noting that court, “after weighing the credibility of

witnesses, may properly credit a police officer’s testimony that no statements were

recorded”); (Michael Eric) Jackson, 450 A.2d at 424 (noting that judge chose to

credit testimony of witnesses that they were shown photo arrays and to infer from

usual police practice that notes were taken).



      In the present case, as in Matthews and similar cases, the question was

whether notes were substantially verbatim.         Although the Supreme Court has
                                         18

treated that question as predominantly factual in nature, see Campbell v. United

States, 373 U.S. 487, 492-93 (1963), the line between notes that are substantially

verbatim and notes that are not is to a degree a legal question, see Williams v.

United States, 119 U.S. App. D.C. 177, 180, 338 F.2d 286, 289 (1964) (“[A]

finding that written statements are or are not producible under the Jencks Act as

substantially verbatim recitals of witnesses’ oral statements is not an ordinary

finding of fact; it is a factual conclusion arrived at by applying a legal standard to

the other facts found.”). As we have noted, our cases do not define that line with

clarity, and a trial court therefore cannot simply accept, without further inquiry, a

prosecutor’s conclusory assertion that notes are “selective” or “not substantially

verbatim.”



                                         C.



      Finally, the United States argues that any error was harmless, because the

record contains other substantial evidence of Mr. Hernandez’s guilt. We conclude

that the United States has not carried its burden of establishing harmless error on

the current record.
                                           19

      In assessing whether a non-constitutional error was harmless, we apply the

standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946), which held

that there must be “fair assurance” that the error did not “substantially sway[ ]” the

judgment. Id. at 765. This standard “precludes us from affirming on a mere hunch

that the case would have ended with the same verdict if the erroneous ruling had

not been made.” Clark v. United States, 593 A.2d 186, 192 (D.C. 1991). “To

conclude that an error is harmless, we must find it highly probable that [the] error

did not contribute to the verdict.” Id. (internal quotation marks omitted). The

government bears the burden of establishing the harmlessness of an error. Lucas v.

United States, 102 A.3d 270, 279 (D.C. 2014). Where this court does not have

access to the potential Jencks statements at issue, we assess harmlessness by

assuming that the undisclosed material contained a Jencks statement, that the

statement “would have provided serious impeachment material,” and that the trial

court therefore would have struck the witness’s direct testimony. Johnson, 800

A.2d at 701 n.4.



      Under this approach, the question is whether we can say with fair assurance

that the trial court would have found Mr. Hernandez guilty even if Ms. Argueta-

Avila had not testified. We lack such assurance. First, Ms. Argueta-Avila was the

critical witness at trial, and the trial court treated her as such. In returning a guilty
                                         20

verdict, the trial court addressed Ms. Argueta-Avila’s testimony first, describing in

detail how credible it found Ms. Argueta-Avila. It is difficult to predict with

confidence how the trial court would have responded to the evidence without Ms.

Argueta-Avila’s testimony. That difficulty counsels against finding harmlessness

on the current record. See, e.g., Lazo, 54 A.3d at 1237 (any Jencks error as to

complaining witness was not harmless, despite corroborative testimony from other

witnesses, given among other things “critical importance” of complaining

witness’s testimony).



      Second, the United States has not presented a clear picture of what the trial

would have looked like in the absence of Ms. Argueta-Avila’s testimony. Most

importantly, the United States has not attempted to explain which of Ms. Argueta-

Avila’s hearsay statements to police officers would properly have been admitted at

a trial in which Ms. Argueta-Avila did not testify. For example, evidence that Ms.

Argueta-Avila had been uncooperative and had denied that Mr. Hernandez had

assaulted her might have given rise to reasonable doubt, particularly in the absence

of any further explanatory testimony from Ms. Argueta-Avila. Ms. Argueta-Avila

made other hearsay statements that would if admitted have provided support for a

finding of guilt, such as that she was afraid of Mr. Hernandez and that Mr.

Hernandez “does this” when he drinks. Nevertheless, absent a more detailed
                                         21

argument by the United States as to which of Ms. Argueta-Avila’s statements

would properly have been admitted at a trial in which she did not testify, we lack

confidence that the trial court would have necessarily found guilt.



      Third, it is not clear that the trial court would have viewed Mr. Hawthorne’s

testimony as establishing guilt beyond a reasonable doubt in the absence of Ms.

Argueta-Avila’s testimony, particularly if the trial court also heard evidence that

Ms. Argueta-Avila had denied that Mr. Hernandez had assaulted her. Although the

trial court stated that it “credited all [of Mr. Hawthorne’s] testimony,” the trial

court did so in a context in which it viewed Mr. Hawthorne’s testimony as

corroborative of (and thus corroborated by) Ms. Argueta-Avila’s testimony.

Moreover, Mr. Hawthorne was impeached with prior convictions, he viewed the

key part of the incident from a distance, and neither Ms. Argueta-Avila’s testimony

nor her injuries corroborated Mr. Hawthorne’s testimony that Mr. Hernandez

choked Ms. Argueta-Avila. Although the corroborative testimony of the police

officers about Ms. Argueta-Avila’s demeanor and injuries would have provided

additional support for a finding of guilt, we nevertheless find ourselves unable to

say with adequate confidence that the error did not influence the trial court’s

finding that Mr. Hernandez pushed and choked Ms. Argueta-Avila.
                                        22

      In contending that any error was harmless, the United States relies primarily

on (Carlton) Moore v. United States, 657 A.2d 1148, 1151-52 (D.C. 1995), and

Butler v. United States, 481 A.2d 431, 446-47 (D.C. 1984). Neither decision

persuades us that the error in this case was harmless. Butler was an appeal from a

denial of a motion for new trial based on newly discovered evidence. 481 A.2d at

446. The trial court in Butler knew the contents of the previously undisclosed

Jencks statements and was thus able to assess whether nondisclosure had actually

prejudiced the defense. Id. at 446-47. The trial court in Butler determined that the

credibility of the witness at issue -- an accomplice -- would not have been so

undermined by the Jencks statements as to affect the verdict, given the “substantial

corroborative evidence” presented. Id. In the present case, neither the trial court

nor we know what the prosecutor’s notes contain. That is why, as we have

previously noted, we must assume for current purposes that Ms. Argueta-Avila’s

testimony would be stricken.



      In (Carlton) Moore, we found the nondisclosure of a Jencks statement

harmless error because (1) defense counsel had possessed three other Jencks

statements for the witness at issue and had failed to impeach the witness’s

testimony with them; (2) two other witnesses had corroborated the witness’s

version of events; and (3) physical evidence in the form of a photograph also
                                        23

corroborated the witness’s testimony. 657 A.2d at 1152. In the present case, the

defense had no other Jencks statements to use to impeach Ms. Argueta-Avila, and

for the reasons already explained we are not sufficiently confident that Mr.

Hernandez would have been found guilty at a trial at which Ms. Argueta-Avila did

not testify.



       In sum, we conclude that the current record does not demonstrate that the

error was harmless. We therefore remand for a further inquiry into whether the

prosecutor’s notes are producible as a Jencks statement.        Although we have

indicated that in camera review may not be necessary if the trial court has

otherwise undertaken an inquiry sufficient to establish that notes do not contain

Jencks material, Lazo, 54 A.3d at 1232, we think it preferable in the circumstances

of this case for the trial court to review the notes at issue in camera, see, e.g.,

Johnson, 800 A.2d at 701 (remanding for trial court to review police officer’s notes

in camera to determine whether notes contained Jencks material). If the trial court

finds that the notes contain Jencks material, the trial court should disclose the

pertinent portions of the notes to the defense and permit the parties to brief the

question whether nondisclosure was harmless because the notes could not have

been used to seriously impeach Ms. Argueta-Avila. E.g., Medina v. United States,

61 A.3d 637, 647 (D.C. 2013). If the trial court finds that the nondisclosure was
                                          24

not harmless, the trial court should vacate the judgment and order a new trial. Id.

If the trial court concludes that the notes do not contain Jencks material, or that any

nondisclosure was harmless, the trial court should make the notes part of the record

under seal, supplement its findings, and enter a new final judgment of conviction to

preserve Mr. Hernandez’s right to seek further appellate review. Bayer v. United

States, 651 A.2d 308, 312 (D.C. 1994); Reed v. United States, 403 A.2d 725, 732

n.9 (D.C. 1979).



                                       So ordered.
