Prosecutors should not ask questions that contain misleading information, and when they do the defense is entitled to present evidence to correct the record, even if that means a mid-trial continuance

Brian K. Gilliam, John A. Daniels, and Ronald L. English v. United States, Nos. 08-CF-725; 08-CF-879; 08-CF-914 (decided November 21, 2013)

Players: Glickman, Fisher, Oberly.  Opinion by Judge Glickman.  PDS for Mr. English.  Montrell Scaife for Mr. Gilliam.  Thomas T. Heslep for Mr. Daniels.  Trial judge: Geoffrey Alprin.  Trial prosecutor: S. Vinet Bryant. 

Issue 1: Did the trial court err in denying the defense request for a continuance after the prosecutor introduced misleading information through questioning of a defense witness? 

Facts:  The defendants were convicted of conspiracy with intent to kill and gun-related charges, but acquitted of murder and assault charges.

The case involved a conspiracy that depended, in part, on the four co-conspirators (the 3 defendants and the government cooperator) getting together via a phone call between the government cooperator (Mr. Holmes) and one of the co-defendants (Mr. Daniels).  Mr. English’s attorneys introduced evidence that they believed showed Mr. Holmes’ testimony about that call was false: Holmes’ cell phone records that showed no call with Mr. Daniels during the relevant time.  They introduced the records through a custodian of records (Custodian # 1). 

AUSA Vinet Bryant, however, cross-examined Custodian # 1 about whether Holmes had a second phone and even asked whether he had checked a specific second number, (202) 277-1049.  Custodian #1 testified that (of course) he would not know if Holmes had a phone with a different service provider, and that he (of course) had not checked the records for the second phone number referenced in the prosecutor’s question. 

Mr. English’s counsel, who had previously been unaware of any other cell phone number belonging to Mr. Holmes, then scrambled mid-trial to obtain the records for this second phone number.  The records showed that Mr. Holmes did in fact have a second cell phone with the number referenced in AUSA Bryant’s question, but that the phone was not in service at the relevant time. 

The defense showed these records to the prosecutor, along with an affidavit from the custodian of those records (Custodian #2).  AUSA Bryant refused to stipulate to the authenticity of the records and insisted that she needed to cross-examine Custodian #2.  Custodian #2 was half-way across the country, however, so the defense requested a brief continuance of the trial in order for her to travel to D.C. and appear as a witness.  Judge Alprin denied the continuance and the jury convicted the appellants on conspiracy and weapons charges.   

Holding 1: Yes, the trial court abused its discretion in denying the continuance because it underestimated the value of the evidence, which would have showed conclusively that Holmes lied about the phone call, and because the prosecutor’s questions about the second phone “had the real potential to mislead the jury into assuming facts not in evidence[.]” 

Of Note:

• If a prosecutor’s question creates a misimpression with the jury, even if there is no actual evidence of the fact implied by the question, the defense is entitled to a continuance / delay of the trial in order to correct that misimpression through evidence; the general instruction that “questions are not evidence” and addressing the issue in closing arguments are not an adequate remedy.

• The Court of Appeals was not pleased with the conduct of the prosecutor and the trial court’s failure to correct the record:  “It therefore is dismaying that, after personally inspecting the phone records and having an opportunity to contact the Sprint Nextel records custodian, the prosecutor objected to the relief appellants sought; equally dismaying that the court did not acknowledge its duty to take appropriate action.”  Slip op. at 25

• “It is immaterial that the prosecutor had a good faith basis to ask the question and did not intend to mislead the jury.”  The problem was created because the “question threatened to plant a false and damaging insinuation …”  Slip op. at 24

• Although there was no actual evidence of a second phone, defense counsel argued forcefully in closing that there was no such evidence, and the judge instructed to the jury during final instructions that questions are not evidence, “those palliatives were not an adequate substitute for the hard evidence the court excluded.”   Slip op. at 28

• Relevant factors in determining whether a trial court abused its discretion in denying a continuance to secure a witness include 1) the probative value of the witness’s testimony, 2) the likelihood that the witness would appear if the continuance were granted, 3) whether the party seeking the continuance has exercised due diligence and good faith, 4) the prejudice to the party if the continuance is denied, 5) the prejudice to the opposing party if the continuance is granted, and 6) the duration of the requested continuance and any consequent disruption or delay of the trial.  Slip op. at 2.

Holding 2: No, Mr. Daniels’ Second Amendment rights were not violated because he was convicted, based on the instruction to the jury, of carrying the pistol without a license “in connection with the homicide of Anthony Knight” which is clearly not a purpose protected by the Second Amendment. 

Issue 3: Whether the conspiracy instruction erroneously permitted the jury to convict the appellants of a conspiracy based entirely on conduct in Maryland? 

Facts:  The government’s theory was that the conspiracy was formed in Maryland, some acts in furtherance of the conspiracy were committed in Maryland, and other acts in furtherance of the conspiracy were committed in D.C.  The jury instruction permitted the jury to find the defendants guilty of conspiracy by finding only that a conspiracy was formed and that at least one overt act was committed. 

Holding 3: Jurisdiction for conspiracy requires that either the formation of the conspiracy or at least one of the overt acts take place within the District of Columbia.  Because in this case the government’s theory is the conspiracy was formed in Maryland, if the appellants are retried for conspiracy the trial court should instruct the jury specifically that it must find that one of the conspirators committed at least one of the overt acts that allegedly occurred in D.C. in order to find a defendant guilty of conspiracy. 

Read full opinion here