U.S. v. Richard

• Decision Date: 12 October 2007
• Docket Number: No. 06-10377.,No. 06-10380.,06-10377.,06-10380.
• Citation: 504 F.3d 1109
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jacquan Lee RICHARD, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Jacquan Lee Richard, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 1109

UNITED STATES of America, Plaintiff-Appellant, v. Jacquan Lee RICHARD, Defendant-Appellee.

United States of America, Plaintiff-Appellee, v. Jacquan Lee Richard, Defendant-Appellant.

No. 06-10377.

No. 06-10380.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 13, 2007.

Filed October 12, 2007.

Robert L. Ellman (argued) and Brian J. Quarles, Assistant United States Attorneys, United States Attorney, for the District of Nevada, Las Vegas, Nevada, for the plaintiff-appellant (No. 06-10377), plaintiff-appellee (No. 06-10380).

Anne R. Traum, Assistant Federal Public Defender, Federal Public Defender, Las Vegas, Nevada, for the defendant-appellee (06-10377), defendant-appellant (No. 06-10380).

Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. Nos. CR-04-00477-JCM, CR-04-00477-JCM/PAL.

Before: DIARMUID F. O'SCANNLAIN, HAWKINS, and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge HAWKINS; Dissent by Judge O'SCANNLAIN.

HAWKINS, Circuit Judge:

Jacquan Richard ("Richard") appeals his jury conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and—because we conclude the district court abused its discretion by permitting the jury to rehear only a portion of a key witness's testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony—we vacate Richard's conviction and remand.

I.

Richard was a backseat passenger in a vehicle lawfully stopped by Las Vegas Police Officer Mark Prager ("Officer Prager") for displaying defective registration tags. Officer Prager requested identification from the vehicle's four occupants and was able to accurately identify three: (1) the vehicle's owner and driver, David Martin ("Martin"); (2) backseat passenger Michael Schneider ("Schneider"); and (3) front seat passenger Nikole Reeder ("Reeder"). Officer Prager was unable to immediately identify Richard because Richard did not have physical identification and the information he provided to Officer Prager could not be confirmed via a local, national, and Department of Motor Vehicles record check.

After issuing two vehicle citations to Martin, Officer Prager released him, along with Reeder and Schneider, permitting them to enter an adjacent casino, but detained Richard in order to ascertain his identity. While detained, Richard volunteered that Martin was a pimp who was pandering Reeder, prompting Officer Prager to request vice backup assistance.¹ Although not fully developed in the record, it appears that support officers subsequently retrieved Martin, Reeder, and Schneider from the casino for questioning. During this follow-up questioning, Schneider informed Detective Aaron Stanton ("Detective Stanton") that there was a gun in Martin's vehicle near the area where Richard had been seated. Detective Stanton later learned that the gun allegedly belonged to Richard, though it is unclear from the record how he obtained this information.

Richard, Martin, and Reeder were then arrested on charges unrelated to the original traffic stop,² Schneider was let go, and Martin's vehicle was impounded. No gun was discovered during a routine impound inventory search. However, Schneider later provided the police with additional information concerning the gun, stating that it was located inside the rear seat of Martin's vehicle. Schneider then accompanied Detective Stanton to the impound lot, where he pointed to the gun's location, evidenced by a small bulge in the backseat. Based on this information, Detective Stanton obtained a search warrant and searched the vehicle the following day, locating the gun inside the rear passenger seat. Detective Stanton subsequently interviewed Richard at the Clark County Detention Center. During this interview, Richard repeatedly denied ownership or possession of the gun, but acknowledged that he may have previously touched or held it.³

At trial, Reeder was the only witness to testify to actually seeing the gun in Richard's possession. At the outset of her testimony, Reeder described Officer Prager's stop of Martin's vehicle, acknowledged that Martin was her boyfriend at the time, and described her location and that of the other passengers in Martin's vehicle. When asked, however, Reeder had significant, ongoing difficulty identifying Richard in the courtroom as a passenger in Martin's vehicle. She failed to do so on four successive attempts over the course of several minutes, despite being prompted with a photograph of Richard she had previously identified as the backseat passenger who possessed the gun and specifically directed to look at the defense table. On the fifth attempt, after additional prompting and direction, Reeder finally acknowledged that Richard looked like the passenger in Martin's vehicle, explaining that he had apparently gained weight and changed his hairstyle.

Reeder then testified that when Officer Prager activated his lights to stop Martin's vehicle, Richard exclaimed that "he had to run, he had warrants, and a gun" and that she saw him pull a gun from his pants and place it under or around the backseat. On cross-examination, defense counsel questioned Reeder about the relatively brief period of time she observed the gun and her ability to describe the gun in detail. In addition, defense counsel inquired further into Reeder's relationship with Martin, the relationships (or lack thereof) between the vehicle's other occupants, and Schneider's state of inebriation at the time of the stop.⁴

In the course of its deliberations, the jury made several requests,⁵ including to "have Nikole Reeder's testimony and cross-examination." In response, the judge explained that there was no then-available transcript of the testimony and advised the jury:

If you want to hear a readback of somebody's testimony you have to let us know what part you want to hear, and then I'll have the court reporter find that in her notes, and then we will bring you back into court and read that back to you.

The court also noted that there was an audiotape, but informed the jury that it would take some time to cue up. The jury was advised to "let [the court] know what portion" of testimony it wanted to hear and temporarily excused. Upon its return, the jury stated that it "would like to either hear back the tape or have read . . . Ms Reeder's testimony from after the side bar until right after — or right toward the beginning of cross-examination. . . . [R]ight around the time she was being asked to identify the defendant."

Outside the jury's presence, and after having learned for the first time of the jury's intended focus on Reeder's testimony in support of the government's case, Richard objected to playing only a portion of Reeder's testimony and moved to have her testimony replayed in its entirety. The judge denied the motion as untimely, expressing concern that reversing course at that point and requiring the jury to hear all of Reeder's testimony would make him "look like an idiot." He also rejected Richard's argument that, because Reeder's credibility was at issue, it was important for the jury to hear her entire testimony, and stated that he would also overrule the objection on the merits because it was not his "place" to instruct the jury that it was required to hear "the entire testimony of everybody, or of Ms. Reeder, or anyone else."

After rehearing a portion of Reeder's testimony in open court, the jury resumed its deliberations, returning one hour later with a guilty verdict. At sentencing, the district court concluded that Richard did not qualify as an "armed career criminal," and sentenced Richard to 120 months imprisonment —the statutory maximum for violation of 18 U.S.C. § 922(g)(1). See id. §§ 924(a)(2), (e)(1). Richard now appeals from his judgment of conviction and the government appeals the failure to find Richard to be an armed career criminal for sentencing purposes.⁶

II.

We review a district court's decision to replay (or reread) witness testimony during jury deliberations for an abuse of discretion.⁷ United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985), overruled in part on other grounds by United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997). "The [district court's] determination to allow a rereading or rehearing of testimony must be based on [the] particular facts and circumstances of the case" and "[u]ndue emphasis of particular testimony should not be permitted." Id. "Under the abuse of discretion standard, we will not reverse unless we have a definite and firm conviction that the district court committed a clear error in judgment." United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.1994).

III.

Richard contends that the audiotape replay of selected portions of Reeder's testimony comprising the core of the government's case unduly emphasized this testimony. We agree. Although the district court is generally afforded a great deal of discretion in determining whether testimony should be replayed (or reread) in a particular case, United States v. Sacco, 869 F.2d 499, 501 (9th Cir.1989), that discretion is not boundless. Although there is no panacea for the inherent risk of undue emphasis resulting from the playback (or rereading) of witness testimony during jury deliberations, certain precautions must generally be taken to avoid that risk. See id. at 501-03; Hernandez, 27 F.3d at 1408.

For example, we have consistently noted that it is preferable to have the testimony reheard (or reread) in open court with all parties present. See, e.g., Hernandez, 27 F.3d at 1408 ("[T]he preferred method of rehearing testimony is in open court, under the supervision of the court, with the defendant and attorneys present."); Binder, 769 F.2d at 601 n. 1 ("If it is appropriate to let the jury hear the testimony of a witness a second time at all, the preferred...