Appeal from the United States District Court for the District of Columbia (No. 02cr00034-01)
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Ginsburg, Chief Judge
Opinion for the Court filed by Chief Judge GINSBURG.
Dissenting opinion filed by Circuit Judge HENDERSON.
Appellant James Earle claims the district court impermissibly took judicial notice of and erroneously instructed the jury about irrelevant evidence that the prosecutor then unfairly relied upon in his closing argument. Because the prosecutor's remarks were based upon information he knew conflicted with the record, and because the record shows Earle was prejudiced by the prosecutor's remarks, we vacate his convictions on three of four counts and remand the case for a new trial on those counts.
In January 2002 a federal grand jury returned a four-count indictment charging Earle with (1) possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(c); (3) use, carriage, and possession of a firearm during a drug trafficking offense, 18 U.S.C. § 924(c)(1); and (4) possession of a controlled substance, 21 U.S.C. § 844(a). Earle was convicted on all four counts and was sentenced to 111 months in prison. This appeal concerns counts one, two, and three.
Earle contends he was mistakenly identified and arrested as the individual three officers of the Metropolitan Police Department were pursuing on the night of December 28, 2001. Earle's claim of mistaken identify naturally gave rise at his trial to disputed accounts of the events leading to his arrest.
The MPD officers testified they first observed Earle in an alley, where they began to follow him in their unmarked police car. According to the officers, upon realizing he was being followed, Earle ran out of the alley and down a sidewalk. Officer Batton, who was sitting in the back seat, testified that the man they were chasing pulled a gun from his waistband and threw it into an adjacent yard without breaking stride. As the officers approached a cross street, Officer Adcock stopped the car and all three officers began pursuing the individual on foot. Adcock testified that he managed to close to within less than ten feet of the suspect when he entered a Kwik Mart convenience store; Batton, who was behind Officers Adcock and Cristomo in the chase, put that distance at five feet. Adcock also testified that he observed the suspect, upon entering the store, "toss a clear object into the trash can."
The police entered the store, arrested Earle, and later found 0.30 grams of cocaine base in a plastic bag in the trash can. They also found a "ziploc bag" of marijuana and $329 on Earle's person. Batton eventually recovered a loaded gun from the yard into which the fleeing suspect had been seen to throw a gun.
At trial Earle was represented by Mr. Harry Tun. Previously, Earle had been represented by the Federal Public Defender, but on July 10, 2002 -- some two days before his trial was to begin -- he retained Tun, who had "represented Mr. Earle's brother in March  ... in Superior Court." Tun immediately sought a continuance in order to prepare for Earle's trial. The district court held a hearing on July 11, 2001 to consider Tun's motion for a continuance. After Tun said he wanted to interview "five to six" witnesses who would testify on Earle's behalf, the court granted the continuance.
In the event, four witnesses testified for the defense. Three of them testified Earle was inside the Kwik Mart when the fleeing suspect passed along the outside of the store. Of those three, two also testified they saw the man the police were chasing and that it was not Earle. The fourth witness testified that while he was walking to the Kwik Mart a man -- not Earle -- ran by him and threw something and then "ran beside the building on [sic] Kwik Stop and went in[to an] alley." On cross-examination, three of the defense witnesses testified they had first been interviewed by Tun's private investigator early in 2002, which was several months before Tun had entered his appearance in the case. The prosecutor questioned the witnesses at length about those interviews and in his closing arguments, suggested the interviews never took place. Suggesting the defense witnesses "got together and ... created this little story," the prosecutor drew the jury's attention to two facts: the date Earle retained Tun and the absence of any notes of the alleged interviews in early 2002.
The date of Tun's retention had been injected into the case when the district court, shortly before the prosecutor's closing argument, informed the jury as follows:
The court takes judicial notice that the defendant and his family retained Mr. Tun to represent the defendant on July 10, 2002, and that the family had been attempting to retain Mr. Tun for several months before that but did not have sufficient funds to do so until July 2002.
Later, in its instructions to the jury, the district court reminded the jury that the court "took judicial notice of facts relating to the retention of Mr. Tun by the defendant and his family."*fn1 Also in its instructions the court directed the jurors' attention again to the absence of interview notes:
You heard some questions during the trial with respect to whether any notes were taken by Mr. Tun or his investigator when they met with witnesses that you heard from. I advise you that there are no contemporaneous notes of those discussions.
Earle claims the district court erred by taking judicial notice of the date he retained Tun and by instructing the jury about the absence of interview notes -- errors he says were compounded when the district court allowed the prosecutor, over Tun's objections, to draw inferences during his closing argument that were not supported by evidence in the record. Accordingly, Earle asks this court to ...