United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2000 Decided May 30, 2000
No. 99-3058
United States of America,
Appellee
v.
John Williams,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00288-01)
Gabriel R. Sanz-Rexach argued the cause for the appel-
lant. John P. Dean was on brief for the appellant.
Sharon A. Sprague, Assistant United States Attorney,
argued the cause for the appellee. Wilma A. Lewis, United
States Attorney, and John R. Fisher, Assistant United States
Attorney, were on brief for the appellee.
Before: Silberman, Henderson and Garland, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Dissenting opinion filed by Circuit Judge Silberman.
Karen LeCraft Henderson, Circuit Judge: John Williams
seeks reversal of his conviction of possession of a firearm and
ammunition by a felon. Williams argues that the district
court made erroneous evidentiary rulings that cannot be
deemed harmless. He challenges the admission of police
officers' testimony regarding the contents of a police radio
call during the events leading to his arrest, the general
danger of traffic stops and the assertion that drug users
commonly carry weapons. It is the admission of the latter,
followed by the trial court's denying Williams an opportunity
to cross-examine the witness and the government's mention
of the testimony in closing argument, which concerns us
here.1
I.
Between 1:30 and 1:45 a.m. on August 1, 1998, Officers
Antonio Duncan and David Reid of the Metropolitan Police
Department, patrolling in the southeast region of the District
of Columbia in a police cruiser, stopped the car in which
Williams was a passenger for failing to stop completely at a
stop sign and then straddling a double-yellow line. As soon
as the officers left their cruiser, Williams got out of the
passenger side of the car "in a crouched position." Tran-
script (Tr.) 3/3/99 at 39. The officers testified that Williams
immediately reached for his waistband and that he was
holding something "of some girth[,] ... an object of some
weight," id. at 166, which they believed could have been a
concealed weapon. See id. at 158-59, 166-67. Ignoring
commands to remain in the car and, then, to show his hands,
Williams maneuvered around the open door and began run-
__________
1 We have considered Williams's arguments regarding the admis-
sibility of other portions of the officers' testimony and find them
without merit.
ning. Duncan chased him while Reid detained the driver,
who had stayed in the car.2
Running with his hands at his waistband, Williams began to
cross a footbridge. He collided into the metal railing and
slowed down a bit. The collision caused a metal clanking
noise. Duncan suspected that whatever object Williams ap-
peared to have been carrying caused the clanking noise and
that Williams may have discarded it from the bridge. Con-
tinuing his pursuit, Duncan did not hear the sound of an
object striking the concrete "creekbed" below. He made a
radio call requesting backup wherein he described the suspect
and his location and mentioned the "possibility" that the
suspect had a gun.3 Tr. 3/3/99 at 47. Shortly thereafter,
Duncan apprehended and arrested Williams with the help of
an unidentified civilian.
Officer Carter Adams responded to the radio call and, at
Duncan's direction, searched portions of the creekbed.
Williams had told Duncan, when returning to the spot where
he hit the footbridge railing, first, that Duncan had not seen
him throw anything and "had no case" and, then, that he had
thrown his "stash" or his "works," id. at 50, terms commonly
used to refer to drugs and drug paraphernalia, respectively.
Adams found no drugs or drug paraphernalia but did find a
handgun. The creekbed contained "no more than half an
inch" of water. Tr. 3/4/99 at 5. Analysis of the gun revealed
neither fingerprints nor rust. The safety switch on the side
of the gun facing the ground was bent and a piece on the
bottom of the gun was cracked.
Williams's first trial on one count of unlawful possession of
a firearm and ammunition by a felon, a violation of 18 U.S.C.
__________
2 The reasonableness of neither the stop of the car nor the
subsequent pursuit of Williams is in question.
3 While Duncan testified that he had said "possibility" in the
radio call, see Tr. 3/3/99 at 47, Officer Carter Adams, who respond-
ed to the call, testified that he remembered the radio call different-
ly, that is, as describing the suspect as a man with a gun. See Tr.
3/3/99, mid-afternoon session, at 5. The tape of the call was not in
evidence.
s 922(g)(1), resulted in a mistrial when the jury failed to
reach a unanimous verdict. After Williams withdrew a guilty
plea to a lesser offense, a second trial commenced. The
officers' testimony at the retrial focused on their suspicion
that Williams had a gun because of his movements when he
got out of the car and his collision with the bridge railing.
The officers conceded, however, that they did not see an
object in Williams's hands nor see him actually throw any-
thing. Defense counsel offered other explanations for the
officers' observations and for the discovery of the gun in the
creekbed. The government had established Williams was a
drug user4 so defense counsel raised the possibility that
Williams could have discarded drugs or drug paraphernalia,
see Tr. 3/3/99 at 109-11, and suggested that the officers did
not conduct an adequate search to rule out the possibility, see
id. at 140-42. Counsel also elicited testimony that violence
was common in the area and recovery of a gun in the area
was not unprecedented. See id. at 80.
After a lengthy redirect examination of Duncan, the prose-
cutor ended the questioning with the following exchange:
Q: Now you were asked a lot of questions about violent
crimes in that area [where the chase and subsequent
arrest occurred] and about guns being discarded, is that
right?
A: Correct.
Q: Okay. And you know that area pretty well?
A: Yes.
...
Q: In your experience as a patrol officer, is it common
for people who use drugs or sell drugs to carry weapons
for protection?
A: Yes.
Tr. 3/3/99 at 160-61 (emphasis added). The court then ex-
cused Duncan from the witness stand and defense counsel
__________
4 See Tr. 3/3/99 at 68-69 (property taken from Williams after
arrest included syringe and needle exchange card).
approached the bench, explaining that she would have object-
ed to the last question but did not have the chance because
"[t]hat answer came out so quickly." Id. at 161. The trial
judge said she would have allowed the exchange in any event
and then denied counsel's request for a "very brief re-cross."
Id. The prosecutor reminded the jury of Duncan's testimony
during her reply closing argument and in the following con-
text:
Counsel also raised an issue about violent crime in the
area to explain, possibly, how this gun--some other way
that this gun could have ended up in that creek....
[C]ounsel ask [sic] a number of questions about violent
crime and about people discarding weapons in the area[,]
and you will recall those type [sic] of questions. Well,
remember that the officer also testified that it is not
uncommon for drug users or drug sellers to carry weap-
ons for protection as well.
Ladies and gentlemen, there is no evidence that this
weapon was tied to any violent crime. And in fact, the
evidence is to the contrary because had this gun been
involved in a violent crime, where somebody wanted to
get rid of it, you would expect that it wouldn't be fully
loaded.... If you recall, this was a fully loaded weapon
with one in the chamber.... In addition, it's an expen-
sive weapon....
Tr. 3/4/99 at 154-55.
Williams was convicted and sentenced to 180 months in
prison, followed by two years of supervised release. A spe-
cial assessment of $100 was also imposed.
II.
We review a trial judge's evidentiary rulings for abuse of
discretion. See United States v. Smart, 98 F.3d 1379, 1386
(D.C. Cir. 1996) (citing United States v. Salamanca, 990 F.2d
629, 637 (D.C. Cir.), cert. denied, 510 U.S. 928 (1993)). A
"district court's decision to admit evidence ... is entitled to
'much deference' on review," United States v. Ramsey, 165
F.3d 980, 984 n.3 (D.C. Cir.) (quoting United States v. Lewis,
693 F.2d 189, 193 (D.C. Cir. 1982)), cert. denied, 120 S. Ct.
223 (1999), but if it is found erroneous, the burden is on the
government to prove the error was harmless. See United
States v. Lampkin, 159 F.3d 607, 614 (D.C. Cir. 1998), cert.
denied, 526 U.S. 1140 (1999); Smart, 98 F.3d at 1390 ("At all
times, the burden of proving that an error was not prejudicial
rests on the government.") (citing United States v. Olano, 507
U.S. 725, 734 (1993)).
A.
Williams challenges the admission of Duncan's affirmative
reply on redirect examination to the following question: "In
your experience as a patrol officer, is it common for people
who use drugs or sell drugs to carry weapons for protection?"
Tr. 3/3/99 at 160-61. Although the inquiry regarding Dun-
can's experience with drug dealers commonly carrying weap-
ons for protection raises no eyebrows, see, e.g., United States
v. Conyers, 118 F.3d 755, 757 (D.C. Cir. 1997) (noting in
appeal of drug trafficking conviction "those who transport
drugs often carry (and all too often use) a firearm"), we
cannot say the same regarding drug users.5 Finding the link
between drug users and guns tenuous, we look to the founda-
tion of Duncan's opinion testimony.
The prosecutor framed the question to Duncan as "in [his]
experience as a patrol officer." Duncan had testified earlier
that he had made gun charge arrests about "six or seven
times." Tr. 3/3/99 at 148. He added that he had "recovered
more than one weapon on a person" and then revised his
previous estimate to "anywhere from ten to eleven, just a
general amount." Id. After hearing defense counsel's late
objection to Duncan's response and commenting that she
would have overruled the objection had it been timely made,
the trial judge denied defense counsel the opportunity to
recross-examine Duncan.
__________
5 As noted, evidence at trial established that Williams was a drug
user. See, e.g., Tr. 3/3/99 at 50, 68-69.
The foundation of Duncan's opinion linking drug users and
possession of weapons is anything but firm. Fewer than one
dozen arrests involving possession of a firearm is not suffi-
cient grounding to qualify him as an expert under Rule 702 of
the Federal Rules of Evidence (FRE), particularly without
evidence establishing that any of those arrests involved a
drug user. If, instead, we view his testimony as having been
admitted under Rule 701,6 FRE, we question whether Dun-
__________
6 Rule 701, FRE, allows lay opinion testimony that "is limited to
those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of
the witness' testimony or the determination of a fact in issue." Fed.
R. Evid. 701. We afford trial judges broad discretion in admitting
opinion testimony of lay witnesses. See, e.g., United States v.
Pierson, 503 F.2d 173, 176 (D.C. Cir. 1974) (trial judge should have
broad discretion and "[o]nly a clear abuse of discretion" warrants
reversal); see also United States v. Pierce, 136 F.3d 770, 773 (11th
Cir.) (" 'The ultimate decision as to the admissibility of lay opinion
testimony is committed to the sound discretion of the district court
and will not be overturned on appeal unless there is a clear abuse of
discretion.' ") (quoting United States v. Myers, 972 F.2d 1566, 1576-
77 (11th Cir. 1992)), cert. denied, 525 U.S. 974 (1998). The leeway
is due in large part to the opportunity the trial judge ordinarily
affords opposing counsel to expose a weak foundation through
cross-examination of the witness. See, e.g., Pierson, 503 F.2d at 176
(" 'It is hardly ever reversible error to admit such evidence; its
foundation may generally be as conveniently left to cross-
examination.' ") (quoting Central R.R. Co. of N. J. v. Monahan, 11
F.2d 212, 214 (2d Cir. 1926) (Hand, J.)); see also Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ("Vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropri-
ate means of attacking shaky but admissible evidence."). Neverthe-
less, to admit lay opinion evidence rationally based on the witness's
perception, a sufficient factual foundation must exist. See, e.g.,
Carter v. United States, 252 F.2d 608, 617 (D.C. Cir. 1957) (lay
witnesses may testify "only upon the basis of facts known to them").
The Office of Legal Education of the Executive Office for United
States Attorneys provides guidelines to establish a proper founda-
tion for the opinion testimony of a skilled lay observer:
can's answer was rationally based on his perceptions. He did
not establish a factual basis for credible opinion testimony
regarding the likelihood of drug users being armed.7 More-
over, as noted above, trial judges generally rely on the
structural check of cross-examination in permitting opinion
testimony with a weak foundation and, for that reason, enjoy
broad discretion. But here the trial court refused to grant
defense counsel's request for an opportunity to recross-
examine Duncan which would have allowed counsel to expose
Duncan's lack of experience. We conclude that the district
court's ruling admitting arguably relevant testimony8 over
__________
1. That the witness has, on prior occasions sufficient in num-
ber to support a reasonable inference of knowledge of or
familiarity with a subject, observed particular events, condi-
tions, or other matters.
2. That the witness on a certain occasion observed a specific
event, condition, or matter of the same nature as previously
observed.
3. That on the basis of his knowledge or familiarity with the
event, condition or matter, he has an opinion as to the event,
condition or matter involved in the case.
4. That the statement of the opinion will be helpful to a clear
understanding of the testimony of the witness [or] the determi-
nation of a fact in issue.
J. Randolph Maney, Jr. & Ruth E. Lucas, Courtroom Evidence 130
(Office of Legal Education, Executive Office for United States
Attorneys (1998) (citing Murl A. Larkin, Federal Evidence Foun-
dations 119-20 (1988)). Here the prosecutor established neither
the first nor the second premise above. She elicited no testimony
from Duncan regarding any "prior occasions," much less occasions
"sufficient in number to support a reasonable inference of knowl-
edge," in which he arrested drug users carrying guns or otherwise
observed drug users carrying guns.
7 The lack of foundation for this testimony is especially clear
when compared to the government's practice of eliciting expert
testimony to establish drug dealers' habits. See, e.g., United States
v. Fennell, 53 F.3d 1296, 1300 (D.C. Cir. 1995), order on reh'g, 77
F.3d 510 (1996).
8 Assuming a proper foundation, the testimony would tend to
make less probable the scenario defense counsel had suggested,
that is, area violence accounted for the gun found in the creekbed.
objection despite the lack of foundation, especially in light of
its subsequent denial of defense counsel's request for "a very
brief re-cross," constitutes error. Cf. United States v. Stock,
948 F.2d 1299, 1302 (D.C. Cir. 1991) (error to deny cross-
examination of police officer for impeachment). We now
consider if the error was harmless.
B.
In determining whether a non-constitutional trial error is
harmless, we ask whether " 'with fair assurance, after ponder-
ing all that happened without stripping the erroneous action
from the whole, that the judgment was not substantially
swayed by the error.' " United States v. Schaffer, 183 F.3d
833, 852 (D.C. Cir. 1999) (quoting Kotteakos v. United States,
328 U.S. 750, 765 (1946)). In other words, we ask "whether
the error 'had a substantial or injurious effect or influence in
determining the jury's verdict.' " Smart, 98 F.3d at 1390
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos, 328 U.S. at 776)). If the error had such
an effect, or if we are left in " 'grave doubt' " about the
harmlessness of the error,9 we must reverse the conviction.
Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995)).
On the record below, we can identify only one factor (apart
from the testimony itself) suggesting the testimony may have
affected the jury verdict, that is, the prosecutor's reminding
the jury of Duncan's testimony during her closing argument
in rebuttal. See United States v. Rhodes, 886 F.2d 375, 382
(D.C. Cir. 1989) (prosecutor's closing argument reference to
__________
9 The United States Supreme Court has said: "By 'grave doubt'
we mean that, in the judge's mind, the matter is so evenly balanced
that he feels himself in virtual equipoise as to the harmlessness of
the error." O'Neal v. McAninch, 513 U.S. 432, 435 (1995). Ex-
plaining further, the Court described "grave doubt" as "unusual"
because "[n]ormally a record review will permit a judge to make up
his or her mind about the matter ... [a]nd indeed a judge has an
obligation to do so." Id.
improperly admitted evidence contributed to conclusion that
error was not harmless). Because the testimony was elicited
during redirect examination and recross-examination was de-
nied, defense counsel could have responded to the testimony
only in her closing argument and could not have responded at
all to the prosecutor's rebuttal reference to Duncan's testimo-
ny. Although defense counsel did not, perhaps understand-
ably, request a limiting instruction regarding Duncan's chal-
lenged testimony, she did obtain a limiting instruction as to
other portions of Duncan's testimony. See Tr. 3/1/99 4-5, 8-9
and Tr. 3/4/99 at 105 (instruction limiting use of testimony
regarding radio call). The absence of an instruction limiting
the jury's use of the challenged testimony may have rein-
forced it. Cf. United States v. Spinner, 152 F.3d 950, 961-62
(D.C. Cir. 1998) (limiting instruction given for some but not
other "bad acts" evidence may enhance latter's influence on
jury). Notwithstanding the prosecutor's statement reminding
the jury of Duncan's testimony linking drug users and guns,
we believe the statement, viewed in the context of the entire
rebuttal closing argument (only one sentence in an argument
covering ten pages in the record, see Tr. 3/4/99 at 150-59) had
minor impact. The prosecutor made the comment in re-
sponse to the defense explanation for discovery of the gun.
The thrust of her response, however, was the lack of evidence
to support Williams's theory that guns are endemic to a high
crime area.
The most significant factor that negates the error's impact
is the weight and nature of the evidence against Williams.10
See generally Stock, 948 F.2d at 1304 (refusal to allow cross-
examination of officer violated confrontation clause but was
__________
10 Our dissenting colleague speculates that because the first trial
resulted in a hung jury, the second trial necessarily presented a
close case. See Dis. Op. at 1-2. We advise caution in assigning
critical significance to the failure of a different jury, which heard
different evidence and argument, to reach agreement. We should
also hesitate to connect the length of deliberations with the strength
of the government's case. But cf. id. (relying on Dallago v. United
States, 427 F.2d 546 (D.C. Cir. 1969) (five-day deliberation after six-
week trial with 37 witnesses and 175 exhibits)).
harmless because other prosecution evidence "was so much
more credible than the defense testimony that [the court
concluded] without reasonable doubt that the jury would have
found [defendant] guilty"). The government's case was based
on Duncan's and Reid's observations of Williams as he got out
of the car and as he fled. The officers testified that Williams
first disregarded Duncan's order to remain in the car. When
Williams got out, he was "in a crouched position," Tr. 3/3/99
at 39, and "immediately grabbed for his waistband," id. at
166. He "was holding something of some girth," id., and
refused to obey Duncan's command to show his hands, see id.
at 167, instead running away with his hands still at his
waistband. See id. at 44. Recounting his pursuit, Duncan
said that Williams's bumping into the metal railing of the
footbridge caused a clanking noise as Williams slowed down
and appeared to discard something. See, e.g., id. at 45-48.
When Duncan finally apprehended him, Williams first stated
"that [Duncan] didn't see him throw anything, and that
[Duncan] had no case," and then claimed he had thrown his
drug "works" from the bridge. Id. at 50.
As a passenger in a car stopped by the police, Williams's
immediate flight does not weigh in his favor.11 See Illinois v.
Wardlow, 120 S. Ct. 673, 676 (2000) (defendant's unprovoked
flight from officers in area of heavy narcotics trafficking
supported reasonable suspicion defendant was involved in
criminal activity). More significant was the ready discovery
of a handgun (without rust and slightly damaged--both fac-
tors consistent with having recently fallen from the bridge
above) where Duncan suspected it would be found and the
fact that Williams did not deny that he threw something from
the bridge or that the police found the gun below the bridge.
Rather, Williams offered an alternative explanation for what
he threw, which was not found, and for why it was not found.
The properly admitted evidence leaves little doubt that the
erroneous admission of the testimony linking drug users and
__________
11 The trial judge instructed the jury that evidence of flight may
be properly considered as a circumstance suggesting guilt but that
it does not raise a presumption of guilt. See Tr. 3/4/99 at 104.
guns was harmless. See United States v. Sanchez-Sotelo, 8
F.3d 202, 211 (5th Cir. 1993) (error in admitting lay opinion
testimony without foundation harmless where evidence ali-
unde permitted inference establishing element of crime); cf.
United States v. Rhodes, 62 F.3d 1449, 1453 (D.C. Cir. 1995)
(error in admitting without foundation prior inconsistent
statement of witness admitting he and defendant had been
selling drugs and firearms not sufficiently prejudicial to war-
rant reversal where prosecution established drugs and weap-
ons seized belonged to defendant); United States v. McCon-
nell, 988 F.2d 530 (5th Cir. 1993) (admission of coconspirator
statement without foundation constituted reversible error in
conspiracy conviction where hearsay testimony was "crucial
link in the chain" between appellants and conspiracy) (em-
phasis added).
Moreover, although, as noted earlier, defense counsel re-
quested no limiting instruction, the trial judge gave standard
instructions that the jury is the "sole judge" of the credibility
of the witnesses, Tr. 4/4/99 at 102, a determination that may
be affected by whether a witness had an opportunity to
observe matters about which he testified, see id., and that the
questions, statements and arguments of the lawyers are not
evidence. See id. at 100, 101. We believe these instructions
further mitigated any potential prejudice. See United States
v. Hawkins, 595 F.2d 751, 755 (D.C. Cir. 1979) (similar
instructions "provided at least some mitigation of any preju-
dice ... which might have arisen from the prosecutor's
closing remarks"); Barkley v. United States, 323 F.2d 804,
808 (D.C. Cir. 1963) (no plain error for failure to give caution-
ary instruction on lay testimony in absence of request and
where general credibility instruction given). But cf. United
States v. Watson, 171 F.3d 695, 700-02 (D.C. Cir. 1999)
(standard jury instructions notwithstanding, prosecutor's mis-
statement of evidence in closing regarding central issue in
close case not harmless error).
In addition, Duncan's testimony elicited by the prosecution
was only partially objectionable. The reference to drug users
did not stand alone; rather, the prosecution referred to drug
users and drug dealers. The fact that the jury heard unob-
jectionable testimony together with objectionable testimony
may have "buried," and therefore minimized, the objectiona-
ble portion.
For the foregoing reasons, we conclude that the brief
testimony and argument linking drug users and guns did not
have a "substantial effect" on the verdict nor are we left in
"grave doubt" regarding the harmlessness of the error. Re-
viewing the evidence against Williams, we are confident the
jury focused on Duncan's and Reid's observations of Williams
during the stop and pursuit and on other inculpatory evi-
dence, including the location and condition of the gun re-
trieved, not on Duncan's affirmative response to a general
proposition made at the very end of his lengthy testimony.
Accordingly, we find the error harmless and affirm Williams's
conviction.
So ordered.
Silberman, Circuit Judge, dissenting: I agree with the
majority that the trial judge committed error in this case, but
I disagree that the error was harmless.
This was a close case. Although the officers testified that
appellant was acting as if he had a gun, no one saw appellant
with one, and there were no fingerprints on the gun. See
Maj. Op. at 3. Appellant's flight is neither here nor there
with respect to whether he possessed a firearm; flight is
equally indicative of appellant's possession of the illegal drugs
he claimed to have. See Maj. Op. at 11. There is a vast
difference between using flight as the basis for a reasonable
suspicion of some unknown criminal activity, see Illinois v.
Wardlow, 120 S. Ct. 673, 676 (2000), and using flight here to
link appellant to a gun found in his vicinity. While some
evidence was at least suggestive of appellant's guilt (his
behavior, the condition of the gun), it was hardly overwhelm-
ing. I find it difficult to believe a jury found defendant guilty
beyond a reasonable doubt.
The majority considers the possibility that the jury did not
pay attention to Officer Duncan's statement with respect to
drug users and guns, hypothesizing that the officer's state-
ment with respect to drug dealers overshadowed it. See Maj.
Op. at 12-13. But I find that unlikely. If, as we all agree, a
statement that "drug dealers commonly carry weapons for
protection raises no eyebrows," Maj. Op. at 6, it is probable
the jury focused on the new information that the same is true
of drug users. Since appellant was an admitted drug user--
he argued as much to the jury--the likelihood that the jury
glossed over Officer Duncan's statement is minuscule. And
the prejudicial statement cuts right to the heart of the case:
Was this drug user in possession of a gun?
It is particularly troubling that, as the court's opinion
recounts, the first jury to consider this case could not reach a
decision, resulting in a mistrial. See Maj. Op. at 3-4.1 It
__________
1 The majority does not contend-nor could it-that the first trial's
hung jury is irrelevant. See Maj. Op. at 10 n.10. Combined with
the weakness of the government's case it should trouble the majori-
ty as much as it does me.
was only in the second trial, in which Officer Duncan's
prejudicial statement about drug users and weapons was
introduced, a statement repeated by the prosecutor during
her summation, that appellant was convicted. Since the
inquiry we undertake asks whether "with fair assurance, after
pondering all that happened without stripping away the erro-
neous action from the whole, ... the [jury's] judgment was
not substantially swayed by the error," the original mistrial is
undoubtedly relevant. United States v. Schaffer, 183 F.3d
833, 852 (D.C. Cir. 1999). The difficulty the first jury had
with this case amply demonstrates that we are not consider-
ing "an error [that] may be more freely disregarded [because]
the evidence of defendant's guilt was overwhelming, since in
such a case the outcome would almost surely have been the
same despite the error." Charles A. Wright, 3A Fed. Prac. &
Proc. Crim.2d s 854 (1982). If we are willing to take into
consideration the length of jury deliberations in our harmless
error review, see Dallago v. United States, 427 F.2d 546, 559
(D.C. Cir. 1969) ("The jury deliberated for five days, and one
would expect that if the evidence of guilt was overwhelming
the jury would have succumbed much sooner."), surely we
must consider the import of the hung jury.
Under these circumstances, I would remand for a new trial.