Appeal from the United States District Court for the District of Columbia (No. 01cr00404-01)
Before: Edwards and Roberts, Circuit Judges, and
Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Edwards, Circuit Judge
Appellant Adrian Williams was convicted under 18 U.S.C. § 922(g)(1) of unlawful possession of a firearm and ammunition by a convicted felon. At Williams' trial, police officers testified that they apprehended Williams on the basis of information furnished by non-testifying individuals that Williams had robbed them at gunpoint earlier in the evening. Despite repeated opportunities to do so, Williams' trial attorney never objected to the admission of these out-of-court statements. In this appeal, Williams seeks a new trial on the grounds that, because of his trial attorney's failure to object to the officers' testimony, he was deprived of effective assistance of counsel. Williams alternatively seeks a remand of his case for resentencing, alleging that the District Court erred in calculating his base offense level under the governing sentencing guideline and that his attorney again provided ineffective assistance by failing to contest this error.
We agree with Williams that the officers' testimony should not have been admitted. On the record at hand, however, we cannot determine conclusively whether defense counsel's performance was constitutionally ineffective. We therefore remand the case to the District Court for an evidentiary hearing on that issue. If the District Court finds that Williams indeed was denied effective assistance of counsel, Williams will be entitled to a new trial.
We find no merit in Williams' challenges to his sentence. Although the District Court erred in increasing Williams' base offense level without first ascertaining whether Williams' previous conviction amounted to a "crime of violence" within the meaning of the sentencing guidelines, Williams has failed to demonstrate sufficient prejudice to constitute plain error or ineffective assistance. Therefore, if his conviction is ultimately sustained on the basis of the verdict now on appeal, then his sentence will stand.
The events leading to Williams' arrest and conviction are largely undisputed. On the evening of October 13, 2001, officers of the Metropolitan Police Department were dispatched in large numbers to monitor crowds that had assembled for homecoming events at Howard University in Northwest Washington. Around 10:00 p.m., Officers Wayne David and Keith Gilbert were approached by two men who reported that they had been robbed at gunpoint earlier in the evening. The complaining witnesses informed the officers that they had just seen the men who robbed them in the 700 block of Euclid Street, but had not approached because they believed their assailants to be armed. Officer Gilbert set off on foot in search of the suspects, while Officer David and Officer Kevin Rachlin, accompanied by the complaining witnesses, drove in an unmarked car in search of individuals matching the descriptions of the robbers.
As Officers David and Rachlin proceeded north toward the intersection of Sherman Avenue and Euclid Street, they observed a group of men cross the street ahead of their police cruiser. Appellant Adrian Williams was among this group. One of the complaining witnesses, who was in the vehicle with the officers, identified "one of them right there" as a participant in the robbery. Trial Tr. at 58 (9/25/02). The officers accordingly exited their vehicle and ordered the suspects to stop. Williams ran. While other officers detained the other suspects, Officer David pursued Williams in the police cruiser. As Williams rounded the corner from Euclid Street to 9th Street, Officer David observed him make a tossing motion toward a grassy lot. The pursuit continued until Williams was apprehended by other officers who had been called to the scene.
After Williams was detained, Officer David returned to the grassy lot at the corner of Euclid and 9th Streets, where he discovered a loaded.380 caliber semiautomatic handgun. Crime scene investigators arrived at the scene to recover the weapon. Although there were several other items and debris in the grassy lot, investigators did not recover anything other than the handgun. The gun was subsequently test-fired and found to be operational. Forensic investigators found no DNA or fingerprints on the gun.
Williams was indicted on November 15, 2001, for possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Although there is no clear indication on the record before us, Williams contends - and the Government does not dispute - that Williams was never charged in connection with the armed robbery that allegedly occurred on the night of October 13.
Williams' first trial began on June 3, 2002. The District Court declared a mistrial on June 7, 2002, after the jury failed to reach a unanimous verdict. A second trial was held on September 25, 2002. The Government's evidence consisted primarily of the testimony of three police officers. Officers Kevin Rachlin and Keith Gilbert described the background context of the alleged robbery and subsequent investigation. Neither had seen Williams with a gun, and neither was with Officer David when he saw Williams toss an object into the grassy lot. Officer David testified as to his pursuit of Williams, stating that he had observed Williams toss an object from the area of his waistband into the grassy lot. He acknowledged that he had not seen what the object was, and he could not describe its size or color. The Government also introduced expert testimony to the effect that it was difficult to recover a useful fingerprint from a gun and that the absence of any fingerprints on the gun recovered on October 13 was not unusual.
Williams introduced no evidence in his defense, though his attorney attempted to impeach the Government's witnesses with prior inconsistent statements. The parties stipulated that Williams previously had been convicted of a felony punishable by a term of imprisonment exceeding one year and that the firearm had traveled in interstate commerce. The parties also stipulated that no DNA was detected on the gun or ammunition and that it was generally rare for DNA to be found on firearms.
Of particular relevance to this appeal, the prosecution and defense stipulated at a hearing prior to Williams' first trial that the Government would not introduce any evidence that the robbery being investigated when Williams was apprehended took place at gunpoint. See Hearing Tr. at 16-17 (5/30/02). The parties agreed that the police officers would testify that they were in the area investigating "a robbery but not a robbery with a gun." Id. at 16. The officers' testimony adhered to this agreement at the first trial, which ended in mistrial after the jury failed to reach a unanimous verdict. At the second trial, however, the officers repeatedly stated that Williams and the other suspects were detained on suspicion of armed robbery. For example, Officer Rachlin testified that he became involved in the case when other officers "asked for our help in a rash of armed robberies that had just occurred." Trial Tr. at 21 (9/25/02). When he and the other officers encountered Williams and the other individuals during their investigation of that armed ...