United States v. Crawford, NO. 06-5059-cr (2d Cir. July 17, 2008) (Sotomayor, Wesley, Wallace, CJJ)
This gun possession case arose when defendant Crawford was arrested by parole officers for violating his curfew and smoking marijuana. The officers claimed that they found a gun and ammunition in his bag. At trial, the government called an interstate commerce nexus expert, but did not introduce testimony about a trace report to demonstrate the gun’s legal chain of custody. Crawford testified that there was no gun in his bag and, in summation, his attorney adopted this “frame-up” theme as the defense. Counsel noted in particular that there was no evidence that the government had traced the gun, an effort to suggest that such a trace would have established that the gun belonged to someone other than Crawford.
During deliberations, the jury sent a note asking “why wasn’t the gun traced to the original owner?” As the parties discussed this, the district judge learned that the government had given the defense a copy of the trace report before trial. Accusing defense counsel of gamesmanship, the judge sua sponte reopened the evidence and allowed the government to call the ATF agent who had conducted the trace. The agent explained the result of the trace, and also testified that the report had been provided to defense counsel before trial.
On appeal, the circuit ordered a new trial, holding that the district court abused its discretion by reopening the trial during deliberations. The appellate court adopted the Fourth Circuit’s approach to this issue, which focuses on the “timeliness of the motion, the character of the testimony and the effect of granting the motion.” The party seeking to reopen must give a “reasonable explanation for failing to present the evidence” in its main case, and the evidence must be “relevant, admissible, technically adequate, and helpful to the jury.” The reopening should not imbue the evidence with “distorted importance,” and should not prejudice the opposing party, which must have an adequate opportunity to respond to it.
Here, the reopening failed every part of this test. The government offered no explanation at all for its failure to introduce the trace report; instead, it argued that it did not have to since it did not ask for the reopening. The circuit disagreed. “That the district court played an active role in initiating reopening proceedings does not excuse the government from showing that it had a reasonable explanation for failing to introduce the evidence in a timely manner.” Indeed, here the court noted that it is possible that the government’s failure to introduce the trace report was a “strategic choice” because the content of report lent credence to the theory that Crawford was framed.
Second, as to the character of the evidence, the court agreed that the trace report was relevant and “probably” helpful to the jury. But here, the government also introduced evidence that defense counsel knew that a trace had been conducted. This evidence was “questionable,” to say the least.
Finally, the court considered the overall effect of the evidence. First, it agreed that the belated introduction of the report “probably imbued” it with “distorted importance.” The evidence also greatly prejudiced the defense. Defense counsel’s summation rested on the existing trial record, where there was no trace report. He probably would not have made that argument if the government had introduced the report in its case-in-chief, and he had no ability to respond to it adequately because he could not sum up on it after the reopening.
Moreover, the evidence that the report had been given to counsel was “devastating” to the defense because it suggested that counsel had attempted to mislead the jury into believing something he knew not to be true. On this point, the court categorically rejected the government’s argument that counsel acted improperly in commenting on the absence of evidence about the trace report – it was perfectly “appropriate” for him to highlight the omission of the report in his summation, and he did so in a way that was neither distorting nor misleading.
In concluding, the court noted that, although it was not adopting a “blanket rule” against admitting evidence after the start of jury deliberations, this should be done only with “extreme reluctance.”