In re Sealed Case

• Citation: 352 F.3d 409
• Decision Date: 19 December 2003
• Docket Number: No. 03-3008.,03-3008.
• Parties: IN RE: SEALED CASE.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 409

352 F.3d 409

IN RE: SEALED CASE.

No. 03-3008.

United States Court of Appeals, District of Columbia Circuit.

Argued November 24, 2003.

Decided December 19, 2003.

Appeal from the United States District Court for the District of Columbia (No. 01cr00270-05).

Leslie Ann Gerardo, appointed by the court, argued the cause and filed the brief for appellant.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr. and Alyse Graham, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and EDWARDS and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The appellant was convicted by a jury of one count of conspiracy to illegally purchase and unlawfully transport firearms, see 18 U.S.C. § 371, and one count of unlawful transportation and aiding and abetting the transportation of firearms, see id. §§ 922(a)(3), 924(a)(1)(D), 2. The only substantial question on appeal is whether appellant suffered substantial prejudice as a result of the exclusion of character evidence of his reputation for truthfulness and honesty. The government concedes that the exclusion of the evidence was error as to the conspiracy count, and we agree in view of the purpose, means, and overt acts charged in the indictment as well as the expert evidence presented by the government. Whether the exclusion of such evidence also was error with respect to the unlawful transportation count is a closer question. We need not decide that question, however, for we hold that any error was harmless. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The excluded evidence was cumulative of the character evidence before the jury and unlikely to overcome the strong evidence of appellant's guilt. Accordingly, we affirm the judgment of conviction.

I.

The evidence showed that Special Agent Susan Poorbaugh, Bureau of Alcohol, Tobacco, and Firearms ("ATF"), began an investigation into an illegal firearm recovered in the District of Columbia and traced to a purchaser, Quentin Jackson, in Atlanta, Georgia. Agent Poorbaugh discovered that Jackson had purchased multiple firearms from various Atlanta dealers on October 31, 1998, January 8, 1999, and May 15, 1999, and that his roommate, Michael Jones, had also purchased multiple firearms on May 15, 1999 and July 3, 1999. Additional investigation traced the firearms purchased by Jackson and Jones to Thomas Bing, a District of Columbia native, and several of his associates, including appellant.

The indictment charged appellant and two others with one count of conspiracy to illegally purchase and unlawfully transport firearms, see 18 U.S.C. § 371, and various counts of unlawful transportation and aiding and abetting the transportation of firearms, see id. §§ 922(a)(3), 924(a)(1)(D), 2, of which appellant was indicted on two counts relating to events on January 8, 1999 and May 15, 1999. One defendant entered into a plea agreement and a second defendant was found not guilty by the jury.

At the trial, the government introduced evidence that appellant was involved in a "straw purchase" scheme. Special Agent Joseph L. Bisbee, ATF, testifying as an expert in firearms trafficking, explained that, in "straw purchases," the ultimate purchaser will ask a third party to purchase a firearm so that either the ultimate purchaser will not be subject to a background check or the ultimate purchaser's name will not appear on the ATF Form 4473 required for all firearm purchases from licensed gun dealers. Pursuant to various plea agreements Bing, Jackson, and Jones testified regarding appellant's involvement in such a scheme whereby Jackson and Jones would purchase firearms for Bing and appellant, who would then transport the firearms to the District of Columbia for resale. Dwan Anderson, who was not charged with a crime relating to the ATF investigation underlying appellant's indictment and who testified under subpoena, corroborated the co-conspirators' testimony about events on May 15, 1999. Anderson testified that appellant traveled with Bing to Atlanta in May 1999 and that he saw appellant while there moving gun boxes from the back seat to the trunk of appellant's car. The government also introduced appellant's employment records from Hecht's department store in the District of Columbia, showing that in 1999 appellant did not work on January 7 or 8, left early on May 14, and did not work on May 15.

Appellant called a single character witness in defense. Gregory Archer, a retired Metropolitan Police Department ("MPD") homicide detective, who was then working as a background investigator for the MPD, testified that he had conducted an investigation of appellant's reputation in the community as a result of appellant's application for a position as a MPD police officer. In the course of his investigation Archer had spoken to 14-15 members of the community and all regarded appellant as "law abiding." Archer also testified that appellant had a reputation among other police officers as being "an outstanding young man" and "a law abiding young man." Further, Archer, who had known appellant since he was five years old and knew that appellant's father was a sergeant in the MPD homicide branch, testified: "In my opinion, he is a law abiding young man, honest, responsible...."

The jury found appellant guilty of conspiracy to illegally purchase and unlawfully transport firearms and of unlawful transportation and aiding and abetting the transportation of firearms on May 15, 1999, and not guilty of charges relating to January 8, 1999. The district court sentenced appellant to 22 months' incarceration, three years of supervised release, and 100 hours of community service.

II.

On appeal, appellant's sole claim of error by the district court is its denial of his request to present character evidence regarding his reputation for truthfulness and honesty in the community. Appellant's defense counsel had argued to the district court that the government had put appellant's reputation for law-abidingness, truthfulness, and honesty at issue by charging him with participating in a conspiracy where appellant aided in the preparation of false statements filed with licensed gun dealers. Trial and appellate counsel maintain that character testimony regarding these separate character traits was admissible, notwithstanding appellant's decision not to testify, because the charges were analogous to fraud cases. The district court ruled that while character evidence regarding appellant's reputation for law-abidingness would be admissible on all counts, character evidence regarding appellant's truthfulness and honesty would be inappropriate unless appellant testified.

This court reviews a district court's exclusion of character evidence for abuse of discretion. See United States v. Bailey, 319 F.3d 514, 517 (D.C.Cir.2003); United States v. Washington, 106 F.3d 983, 999 (D.C.Cir.1997); see also Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 220-21, 93 L.Ed. 168 (1948). If the evidence was improperly excluded, this court must then determine whether the error was harmless. See Bailey, 319 F.3d at 519; Washington, 106 F.3d at 1000. Where a non-constitutional trial error is involved, as here, the question is whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253; see also Washington, 106 F.3d at 1000. To the extent that this court applied the Chapman standard in United States v. Lechoco, 542 F.2d 84, 88 (D.C.Cir.1976), it was error. See, e.g., O'Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). As noted in In re Sealed Case No. 97-3112, 181 F.3d 128, 143-44 (D.C.Cir.1999) (en banc) (Edwards, C.J. & Tatel, J., concurring) (discussing Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C.Cir.1981)), a three-judge "panel may always ... determine... that a prior holding has been superseded, and hence is no longer valid as precedent" without resorting to en banc endorsement, id. at 143 (quoting Policy Statement on En Banc Endorsement of Panel Decisions 2-3 (Jan. 17, 1996)).

A.

Under Fed.R.Evid. 404(a), character evidence is inadmissible for the purpose of proving action in conformity therewith, except "[e]vidence of a pertinent trait of character offered by an accused...." Fed.R.Evid. 404(a)(1). Courts have held that the general character trait of law-abidingness is pertinent to almost all criminal offenses. See United States v. Daily, 921 F.2d 994, 1010 (10th Cir.1990); United States v. Hewitt, 634 F.2d 277, 279 (5th Cir.1981); see also JOHN W. STRONG, McCORMICK ON EVIDENCE § 191, at 674 (5th ed. 1999). Evidence on the specific character traits for truthfulness and honesty has been held admissible both when the defendant testifies at trial and the prosecution attacks the defendant's credibility, and when the defendant is charged with an offense in which fraud or falsehood is one of its statutory elements. See Edgington v. United States, 164 U.S. 361, 363-64, 17 S.Ct. 72, 72-73, 41 L.Ed. 467 (1896); Lechoco, 542 F.2d at 88; Hewitt, 634 F.2d at 279; United States v. Darland, 626 F.2d 1235, 1237 (5th Cir.1980); Carnley v. United States, 274 F.2d 68, 69 (5th Cir.1960); see generally Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967). Edgington, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467, is an example of the latter situation. In that case, the defendant was charged with making a false deposition in aid of a fraudulent pension claim. Id. at 363., 17 S.Ct. at 72 The Court rejected the argument that character evidence of the defendant's reputation for truth and veracity was admissible only if the defendant testified, and held that because the crime charged was a species of the crimen falsi, i.e., a crime involving some element of...