U.S. v. Rawlings, 93-3188

Citation73 F.3d 1145
Decision Date19 January 1996
Docket NumberNo. 93-3188,93-3188
PartiesUNITED STATES of America, Appellee, v. Derek D. RAWLINGS, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Lisa B. Wright, Assistant Federal Public Defender argued the cause, for the appellant. A.J. Kramer, Federal Public Defender, was on the brief.

Judson E. Lobdell, Assistant United States Attorney, argued the cause, for the appellee. Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black and Cherry Marie Destura, Assistant United States Attorneys, were on the brief.

Before: GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Derek D. Rawlings challenges his conviction on one count of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d) on the grounds that (1) the prosecutor improperly cross-examined Rawlings about his silence after he had been arrested and advised of his Miranda rights, (2) the court erroneously asked Rawlings during his direct examination whether police witnesses had "made up" their testimony and (3) the court's jury instructions were misleading. Because we conclude the trial court misinstructed the jury, we reverse the conviction and remand for a new trial. 1

On appeal from a conviction, we must view the evidence in the light most favorable to the government, allowing it the benefit of all reasonable inferences that may be drawn from the evidence and permitting the jury to determine the weight and credibility of the evidence. United States v. Sobin, 56 F.3d 1423, 1425 (D.C.Cir.1995); United States v. Butler, 924 F.2d 1124, 1126 (D.C.Cir.), cert. denied, 502 U.S. 871, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991). So viewed the evidence reveals the following facts.

At about 9:00 a.m. on May 4, 1993, Washington Metropolitan Police Department Officers Franklin Crews and Robert Scippio

were patrolling near Fifth Street and Florida Avenue, N.E., when they received a radio alert for a black male wearing a blue and white sweat jacket and carrying a "Heineken" beer box in which was concealed a sawed-off shotgun. The officers searched the area in a patrol car until they spotted three men outside a convenience store, one of whom was wearing a blue and white jacket and holding a Heineken box. The officers parked the patrol car and got out to investigate. When Scippio approached the men and began to speak, the man holding the box ran off and Scippio gave chase. Neither Scippio nor Crews noticed what the other two men did then.

Scippio chased the man with the box through several alleys and over two fences. The first was a low "waist high" fence that each man jumped without difficulty. The second fence, however, was about six-feet high and the fleeing suspect was forced to throw the Heineken box to the other side before scaling the fence himself. He then ran off leaving behind the box and the shotgun.

Meanwhile, Crews had circled around the block and saw a man rounding the corner while removing a blue and white jacket. Crews shouted and gave chase but lost sight of the man after he turned into an alley. Officer Daniel Kapaska and his partner entered the same alley from the opposite direction and saw Rawlings running toward them either wearing or carrying a blue and white jacket. 2 Rawlings stopped when he saw the officers and they then arrested him. A short time later Crews and Scippio arrived and identified Rawlings as the man they had seen holding the Heineken box and had each chased. A laboratory analysis of the shotgun, which Scippio had retrieved, revealed a single fingerprint belonging to Rawlings.

Rawlings was indicted and tried on one count of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). At trial the defense theory was that Scippio and Crews mistakenly identified Rawlings as the man Scippio had chased. According to Rawlings, he left home for work around 8:00 a.m. on May 4, carrying a blue and grey jacket, and fortuitously encountered two men he knew outside the store where the officers first saw him. One of the two, "Yarborough," asked Rawlings to "check out" a Heineken box they had. When Rawlings reached into the box he felt something "cold" and "hard" inside but "didn't really feel it long enough to exactly feel--to even know what it was." Appellant's Appendix (App.) tab B 192. Then Rawlings heard one of the other two men yell "police" and all three started running. Rawlings testified that he became "paranoid" and ran around the block toward his home while the other two "cut through the alley that's been mentioned." Id. at 175. On his way home he passed through a different alley where he was arrested by Kapaska and his partner.

At the close of a two-day trial Rawlings was convicted of possessing an unregistered firearm. He was sentenced to 57 months' imprisonment, followed by three years of supervised release, and a $50 assessment.

At trial the district judge interrupted Rawlings's testimony and the following exchange occurred:

The Court: When you were running with the police after you, did you have to jump or climb over any fences?

Rawlings: No, Sir.

The Court: It didn't exist, no fence is there?

Rawlings: I never went through an alley or anything until I got to 11th Street, the alley right next to my house, and there wasn't no fence.

The Court: The officer made it all up?

Rawlings: Yes, Ma'am--Yes, Sir.

The Court: Okay.

App. tab B 196-97.

While charging the jury, the judge again focussed on the perceived inconsistency between the two sides' stories, characterizing them as "diametrically opposed" and instructing the jurors that they "had to decide what really happened." App. tab C 28. In his credibility instruction the judge again emphasized to the jurors the conflict he perceived and told them they had to resolve it:

Now credibility, as I mentioned, I think, the word several times, is one of the most important functions that you perform. In this trial, as in most trials, you hear one story from one set of witnesses and you hear the exact opposite from another set of witnesses. In almost every trial that I have ever conducted that has been true. You have to make a decision who is to be believed. Which side, which witnesses are telling the truth. I have no legal magic, principles, as to how that is to be done. It is to be done on the basis of your experience in life, your common sense, which story is more likely to be true than the other, which witness seems to be telling the truth and which one doesn't. As I said, it goes strictly on the basis of experience and common sense.

Id. at 31-32 (emphasis added).

Later on in the charge the judge declared:

Now, that gets us to the last part of these instructions and that is the charge itself. The defendant has been charged by the grand jury, by indictment, with possession of an unregistered firearm. There are three parts, three elements to this. For our present purpose the first is the most important, although you must consider all three. But the first, which I will give you right now, is the most important. Namely, the Government must prove as the first element that the defendant possessed this firearm, that is a short barrel or sawed-off shotgun.

App. tab C 35 (emphasis added). After instructing the jurors at some length on the "important" element of possession, the judge continued:

Now the other two elements are not--they must be proved, but I suggest to you they are probably not as important in the context of this case. The government must prove as a second element that if the defendant had possession he had so knowingly, that is ...

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6 cases
  • U.S. v. White
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1997
    ...drug conspiracy and related crimes. We affirm. I Viewed in the light most favorable to the Government, see, e.g., United States v. Rawlings, 73 F.3d 1145, 1146 (D.C.Cir.1996), the evidence presented at trial established the following: Antone White and several friends, including Eric Hicks a......
  • U.S. v. Wilson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 20, 1998
    ...such an instruction is inconsistent with otherwise adequate burden of proof and reasonable doubt instructions. See United States v. Rawlings, 73 F.3d 1145, 1148 (D.C.Cir.1996). Yet not only did the district court here repeatedly and correctly instruct the jury that the government had the bu......
  • United States v. Purvis, 09–3044.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 12, 2013
    ...the factual dispute was plainly inconsistent with its otherwise adequate burden of proof and reasonable doubt instructions.” 73 F.3d 1145, 1148–49 (D.C.Cir.1996). We expressly noted, however, that our reversal did not rest on the ground that the instruction “by itself impermissibly shifted ......
  • United States v. Purvis, 09-3044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 12, 2013
    ...the factual dispute was plainly inconsistent with its otherwise adequate burden of proof and reasonable doubt instructions." 73 F.3d 1145, 1148-49 (D.C. Cir. 1996). We expressly noted, however, that our reversal did not rest on the ground that the instruction "by itself impermissibly shifte......
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1 books & journal articles
  • Trial
    • United States
    • James Publishing Practical Law Books Federal Criminal Practice
    • April 30, 2022
    ...that the last sentence of the model instruction be modified to comport with the Court of Appeals’ holding in United States v. Rawlings , 73 F.3d 1145, 1148-49 (D.C. Cir. 1996). The last sentence of the model instruction reads as follows: “Your sole interest is to ascertain the truth from th......

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