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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2004 Decided July 23, 2004
No. 02-3110
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES EARLE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00034–01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese III, and
Arvind K. Lal, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
Dissenting opinion filed by Circuit Judge HENDERSON.
GINSBURG, Chief Judge: Appellant James Earle claims the
district court impermissibly took judicial notice of and errone-
ously instructed the jury about irrelevant evidence that the
prosecutor then unfairly relied upon in his closing argument.
Because the prosecutor’s remarks were based upon informa-
tion he knew conflicted with the record, and because the
record shows Earle was prejudiced by the prosecutor’s re-
marks, we vacate his convictions on three of four counts and
remand the case for a new trial on those counts.
I. Background
In January 2002 a federal grand jury returned a four-count
indictment charging Earle with (1) possession of a firearm
and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1);
(2) possession with intent to distribute cocaine base, 21 U.S.C.
§ 841(a)(1), (b)(1)(c); (3) use, carriage, and possession of a
firearm during a drug trafficking offense, 18 U.S.C.
§ 924(c)(1); and (4) possession of a controlled substance, 21
U.S.C. § 844(a). Earle was convicted on all four counts and
was sentenced to 111 months in prison. This appeal concerns
counts one, two, and three.
Earle contends he was mistakenly identified and arrested
as the individual three officers of the Metropolitan Police
Department were pursuing on the night of December 28,
2001. Earle’s claim of mistaken identify naturally gave rise
at his trial to disputed accounts of the events leading to his
arrest.
The MPD officers testified they first observed Earle in an
alley, where they began to follow him in their unmarked
police car. According to the officers, upon realizing he was
3
being followed, Earle ran out of the alley and down a side-
walk. Officer Batton, who was sitting in the back seat,
testified that the man they were chasing pulled a gun from
his waistband and threw it into an adjacent yard without
breaking stride. As the officers approached a cross street,
Officer Adcock stopped the car and all three officers began
pursuing the individual on foot. Adcock testified that he
managed to close to within less than ten feet of the suspect
when he entered a Kwik Mart convenience store; Batton,
who was behind Officers Adcock and Cristomo in the chase,
put that distance at five feet. Adcock also testified that he
observed the suspect, upon entering the store, ‘‘toss a clear
object into the trash can.’’
The police entered the store, arrested Earle, and later
found 0.30 grams of cocaine base in a plastic bag in the trash
can. They also found a ‘‘ziploc bag’’ of marijuana and $329 on
Earle’s person. Batton eventually recovered a loaded gun
from the yard into which the fleeing suspect had been seen to
throw a gun.
At trial Earle was represented by Mr. Harry Tun. Previ-
ously, Earle had been represented by the Federal Public
Defender, but on July 10, 2002 — some two days before his
trial was to begin — he retained Tun, who had ‘‘represented
Mr. Earle’s brother in March [2002] TTT in Superior Court.’’
Tun immediately sought a continuance in order to prepare for
Earle’s trial. The district court held a hearing on July 11,
2001 to consider Tun’s motion for a continuance. After Tun
said he wanted to interview ‘‘five to six’’ witnesses who would
testify on Earle’s behalf, the court granted the continuance.
In the event, four witnesses testified for the defense.
Three of them testified Earle was inside the Kwik Mart when
the fleeing suspect passed along the outside of the store. Of
those three, two also testified they saw the man the police
were chasing and that it was not Earle. The fourth witness
testified that while he was walking to the Kwik Mart a
man — not Earle — ran by him and threw something and
then ‘‘ran beside the building on [sic] Kwik Stop and went
in[to an] alley.’’ On cross-examination, three of the defense
4
witnesses testified they had first been interviewed by Tun’s
private investigator early in 2002, which was several months
before Tun had entered his appearance in the case. The
prosecutor questioned the witnesses at length about those
interviews and in his closing arguments, suggested the inter-
views never took place. Suggesting the defense witnesses
‘‘got together and TTT created this little story,’’ the prosecutor
drew the jury’s attention to two facts: the date Earle re-
tained Tun and the absence of any notes of the alleged
interviews in early 2002.
The date of Tun’s retention had been injected into the case
when the district court, shortly before the prosecutor’s clos-
ing argument, informed the jury as follows:
The court takes judicial notice that the defendant and his
family retained Mr. Tun to represent the defendant on
July 10, 2002, and that the family had been attempting to
retain Mr. Tun for several months before that but did not
have sufficient funds to do so until July 2002.
Later, in its instructions to the jury, the district court re-
minded the jury that the court ‘‘took judicial notice of facts
relating to the retention of Mr. Tun by the defendant and his
family.’’* Also in its instructions the court directed the
jurors’ attention again to the absence of interview notes:
You heard some questions during the trial with respect
to whether any notes were taken by Mr. Tun or his
investigator when they met with witnesses that you
heard from. I advise you that there are no contempora-
neous notes of those discussions.
II. Analysis
Earle claims the district court erred by taking judicial
notice of the date he retained Tun and by instructing the jury
about the absence of interview notes — errors he says were
* As required by Federal Rule of Evidence 201(g) of a court
taking judicial notice of adjudicative facts in a criminal case, the
district court also instructed the jury they were not required to
‘‘regard those facts as proven evidence.’’
5
compounded when the district court allowed the prosecutor,
over Tun’s objections, to draw inferences during his closing
argument that were not supported by evidence in the record.
Accordingly, Earle asks this court to vacate his convictions on
counts 1, 2, and 3 and to remand the case for a new trial on
those counts.
A. Relevance
Earle argues that the date of Tun’s retention and the
absence of interview notes ‘‘say[ ] absolutely nothing’’ about
whether or when counsel’s investigator first interviewed the
defense witnesses. In response the Government claims these
facts cast doubt upon the credibility of the defense witnesses
and are relevant because ‘‘credibility is always relevant,’’ and
cites United States v. Abel, 469 U.S. 45, 52 (1984), for the
proposition that ‘‘the jury TTT has historically been entitled to
assess all evidence which might bear on the accuracy and
truth of a witness’ testimony.’’
The district court’s decision to admit evidence as relevant is
subject to review only for abuse of discretion. United States
v. Smith, 232 F.3d 236, 241 (D.C. Cir. 2000). Evidence is
relevant if it has ‘‘any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.’’ FED. R. EVID. 401.
The date Earle retained private counsel and the absence of
interview notes need not be accurate indicators of whether
the claimed interviews took place in order to be deemed
relevant under Rule 401. The threshold for relevance, as
applied to the present case, is merely that the evidence tends
to make ‘‘less probable’’ the defense’s assertion that the
witnesses were interviewed early in 2002. Although, as Earle
correctly points out, Tun may well have taken preparatory
measures long before he was formally retained, we cannot say
the district court abused its discretion by allowing the jurors
to consider the evidence to which Earle now objects.
Earle next argues the date of Tun’s retention and the
absence of interview notes should have been excluded under
6
Federal Rule of Evidence 403 because it was ‘‘highly likely’’
the jurors would be ‘‘confused and misled’’ by that evidence.
The court’s statement of judicial notice and its jury instruc-
tions, however, were not themselves confusing or misleading.
In fact, Earle’s objection has more to do with the inferences
the prosecutor drew from the evidence than it does the
admissibility of that evidence. Accordingly, we find the dis-
trict court did not abuse its discretion in admitting the
evidence after having weighed its ‘‘probative value’’ against
the danger it raised of ‘‘unfair prejudice, confusion of the
issues or misleading the jury.’’ United States v. Long, 328
F.3d 655, 662 (D.C. Cir. 2003); see also FED. R. EVID. 403.
B. Impermissible inference
Even evidence deemed relevant under Rule 401 and not
prejudicial under Rule 403 may not be used as a springboard
to propound an impermissible inference. Cf. United States v.
Edmonds, 69 F.3d 1172, 1176 (D.C. Cir. 1995) (although
evidence admitted was ‘‘ ‘damaging,’ TTT there was little
danger of unfair prejudice [where] prosecutor never argued
an impermissible inference and did not emphasize the testi-
mony’’). Earle argues the prosecutor did just that in his
closing argument by questioning Tun’s involvement in the
case prior to his retention in July 2002, despite the prosecu-
tor’s knowledge of Tun’s contrary representations to the
court. The Government responds that there is evidence in
the record contradicting Tun’s representation about both the
date of his retention and the existence of the interview notes,
namely, Tun’s statement in his motion for continuance that
‘‘there are eyewitnesses who are essential to this case [who]
have yet to be TTT interviewed’’; therefore, according to the
Government, the prosecutor’s closing argument was ‘‘firm but
fair advocacy TTT, not prosecutorial error.’’
For a prosecutor’s statements in closing argument to war-
rant a new trial, they must entail a serious error that is
prejudicial to the defendant. United States v. Watson, 171
F.3d 695, 699 (D.C. Cir. 1999). It is a serious error ‘‘for
counsel to make statements in closing argument unsupported
by evidence, to misstate admitted evidence, or to misquote a
7
witness’ testimony.’’ Id.; see also United States v. Blueford,
312 F.3d 962, 968 (9th Cir. 2002) (error where prosecution
‘‘propound[s] inferences that it knows to be false, or has very
strong reason to doubt’’).
Here, Earle objects to the following remarks in the prose-
cutor’s closing argument:
[Prosecutor]: Remember the last thing the judge did
before we started here? He took judicial notice of a fact.
And the fact that he took judicial notice of was that Mr.
Earle and his family did not retain Mr. Tun until July the
10th of 2002. They had been trying to raise the money
before for several months. Apply your common sense
here. Does it make sense to you that an investigator
would go out on behalf of an attorney who had not been
retained, who had not been paid?
Mr. Tun: Objection. That is not [the] judicial notice.
The Court: The objection is overruled. I think the way
it is phrased is admissible. Go ahead.
[Prosecutor]: Does it make sense to you that an investi-
gator on behalf of a defense attorney who had not been
retained, who had not been paid any money, is going to
go out and start investigating a case when somebody else
represents the defendant?
Mr. Tun: Objection. That’s not in evidence.
The Court: Overruled.
[Prosecutor]: I submit to you it makes no sense. The
defense witnesses, I submit to you, got together and they
created this little story. The only problem is they forgot
to apply a little bit of common sense. Why would a
defense investigator go out and talk to them in January?
I submit to you there’s no good reason other than the
fact that they weren’t telling you the truthTTTT
During his rebuttal, the prosecutor again questioned Tun’s
involvement in the case prior to the date of his retention:
Mr. Tun would have you believe that out of the goodness
of his heart, for the passion of his work, he was involved,
8
he was doing this stuff for freeTTTT To suggest that Mr.
Tun sent out an investigator when he wasn’t retained I
submit to you just doesn’t make sense. And your com-
mon sense tells you that, I submit to you. The state-
ment that the judge read to you was that for several
months the family had been trying to retain Mr. Tun. I
ask you, is several months one? Maybe two? Maybe
three? But is it seven? The judge also told you, re-
member one of the witnesses, I think it was two of the
witnesses said that when the investigator was talking to
them, the investigator was taking notes? I believe the
judge advised you there are no notes.
The prosecutor made these statements to the jury despite
having heard Tun’s representations to the district court—
representations neither the court nor the prosecutor ever
questioned—that before he was formally retained he had
visited Earle in jail in connection with this case on ‘‘at least
five occasion[s] from [the] beginning of February TTT if not
earlier.’’ Tun further volunteered that the jail’s visitor log
would confirm those visits. There is not the slightest sugges-
tion in the record that the visits did not take place or that the
prosecutor ever challenged the accuracy of Tun’s representa-
tions in any way, as Government counsel on this appeal
acknowledged at oral argument. Tun also explained to the
district court and to the prosecutor that his ‘‘normal practice
with regard to interviewing witnesses [was] not [to] take any
notes.’’ The district court did not question Tun’s practice; on
the contrary, it accepted his representation at face value. See
9/6/02 am Tr. at 9 (‘‘You don’t have to explain why you don’t
take notes, Mr. Tun. That’s not anybody’s business.’’). And
the prosecutor likewise stated, ‘‘If Mr. Tun is representing to
the court that there are no notes, then I’ll accept that.’’
The Government claims the inferences proposed by the
prosecutor were permissible because Tun’s pre-trial represen-
tations to the district court contradict his objection at trial to
judicial notice of the date of his retention. Here the Govern-
ment is referring to Tun’s July 10, 2002 motion for a continu-
ance, in which he stated:
9
It is undersigned counsel’s understanding that there are
eyewitnesses who are essential to this case and that they
have yet to be subpoenaed or interviewedTTTT Under-
signed counsel will not be prepared to try this matter on
July 12, 2002 due to his inability to interview, investigate
and subpoena appropriate witnesses for defendant.
There is no contradiction here. As Earle correctly points
out, Tun was merely stating that he himself had not yet
interviewed the witnesses. His request for a continuance
says nothing about whether his investigator had done so.
Nor is there any reason to doubt that an attorney would want
to interview his witnesses personally before putting them on
the witness stand even though his investigator had already
spoken to them some months before.
Based upon the record in this case, the prosecutor clearly
had every reason to doubt, and no good reason to support, the
inferences he propounded to the jury in his closing argu-
ments. We therefore hold the district court erred by allow-
ing the prosecutor to make those statements over Tun’s
repeated objection.
Despite that error, we must still determine whether Earle
‘‘suffered sufficient prejudice’’ to warrant a new trial. Wat-
son, 171 F.3d at 700. We look specifically at the following
three factors: (1) ‘‘the severity of the prosecutor’s miscon-
duct’’; (2) ‘‘the measures adopted to cure the misconduct’’;
and (3) ‘‘the certainty of conviction absent the improper
remarks.’’ Id., quoting United States v. Gartmon, 146 F.3d
1015, 1026 (D.C. Cir. 1998).
The first and second enumerated factors are easily applied
to the facts of this case. The prosecutor’s closing argument,
by suggesting Tun’s investigator had not interviewed defense
witnesses early in 2002, contrary to the testimony of three
defense witnesses, called into question the credibility not only
of those witnesses but that of Tun himself; he put Tun in the
position of having to defend his credibility and to argue to the
jury — as he did at some length — that he had worked on the
case before he was formally retained. Thus did the prosecu-
tor make this collateral issue central to the defendant’s case.
10
And his doing so may well have affected the outcome, for the
jury sent a note to the court asking: ‘‘How did the investiga-
tor locate the witnesses?’’ We cannot imagine that question
would have arisen but for the prosecutor’s suggestion that
Tun, the investigator’s employer, had not been involved in the
case when the witnesses testified the investigator had inter-
viewed them.
With respect to ‘‘the measures adopted to cure the miscon-
duct,’’ there simply was none. On the contrary, the district
court overruled Tun’s several objections to the prosecutor’s
impermissible comments.
Whether this is otherwise a close enough case for these
errors to undermine our confidence in the verdict is itself a
nice question. On the one hand, two police officers testified
that they saw Earle throw a gun into a yard while he was
running away from them. And three officers testified that
they had seen Earle enter the Kwik Mart. On the other
hand, three defense witnesses testified that they saw the
individual who was running from the police and that it was
not Earle. These conflicting accounts could have left a
reasonable jury with doubts about the identity of the fleeing
suspect. Indeed, the jurors in this case appear to have
harbored such doubts: They submitted two questions to the
district court specifically and pointedly directed to the ques-
tion of identity. They asked: ‘‘Were there any fingerprints
on the narcotics bag?’’ (referring to the bag found inside the
convenience store); and ‘‘How does no fingerprints play in
this case (gun)?’’
Finally, as Government counsel again acknowledged at oral
argument, there was an ‘‘objective physical fact’’ tending both
to favor Earle’s description of events and to draw into
question that of the Government, namely, the undisputed
presence of Earle’s girlfriend at the Kwik Mart at the time of
his arrest. She testified that she and Earle had been out for
dinner and had stopped at the Kwik Mart on their way home
together. If Earle was in the Kwik Mart only because he
was seeking to evade police officers who had been chasing
him through the streets, then it seems passing strange that
11
his girlfriend also happened to be at the store when he was
arrested. Yet the Government did nothing at trial to cast
doubt upon her testimony to that effect. On the contrary,
one officer testified: ‘‘I remember a female out thereTTTT I
think the female is the one we gave the prisoner’s property
to.’’
For the foregoing reasons, we are left with ‘‘grave doubt’’
as to whether the prosecutor’s impermissible inferences about
Tun’s involvement before his formal retention did not affect
the jury’s verdict. Watson, 171 F.3d at 700. Accordingly, we
are constrained to hold the error was not harmless.
III. Conclusion
The judgment against Earle on Counts 1, 2, and 3 is
vacated and the case is remanded for a new trial with respect
thereto.
So ordered.
1
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Because I believe the prosecutor did nothing impermissible,
I dissent from the majority opinion reversing James Earle’s
conviction. To clarify my reasons, I will expand on the
majority’s bare-bones factual recitation.
Three days after his arrest, Earle made his initial court
appearance on December 31, 2001, represented by the Feder-
al Public Defender’s Office. On June 11, 2002 the district
court scheduled the trial for July 12, 2002. On the eve of the
trial date new developments caught the court, the prosecutor
and Earle’s own public defender by surprise. On July 10, two
days before the trial was to begin, lawyer Harry Tun filed a
motion for continuance, stating he had been retained by
Earle’s family just that day and needed a continuance to
interview five or six newly-discovered witnesses. At a hear-
ing the following day, Tun informed the court that Earle’s
family had contacted Tun immediately after Earle’s arrest
but at the time had been unable to pay his fee, having just
finished paying him for successfully representing Earle’s
brother, Domingo Stephenson, in a criminal trial ‘‘involving
[a] similar situation.’’ 7/11 Tr. at 3. But on the previous day,
he explained, ‘‘they were able to come up with [a] partial
amount of [the] attorney’s fee’’ and ‘‘signed a promissory note
to pay the rest of it.’’ Id. at 4. Tun told the court it was his
‘‘understanding’’ there were ‘‘five to six witnesses that need to
be interviewed and who will be able to testify on behalf of Mr.
Earle during his trial and exculpate his involvement in this
case.’’ 7/11 Tr. at 3. Earle’s public defender informed the
court he ‘‘didn’t have any knowledge’’ of the witnesses of
whom Tun spoke. Id. at 4. To accommodate Tun, the court
rescheduled the trial for September 3, 2002, although the
‘‘11th hour’’ change would ‘‘wreak[ ] havoc on the schedules of
many people,’’ id. at 10, including the prosecutor who was not
available to try the case on September 3 and would therefore
need to find a replacement.
The trial began on September 3 as scheduled, with a
substitute prosecutor. During the government’s case, Offi-
cers Adcock, Batton and Crisostomo testified that, while
pursuing Earle the night of the arrest, they observed him
withdraw a firearm from his waistband and throw it into a
2
nearby yard and, after arriving at the ‘‘Kwik Mart’’ where he
was arrested, deposit in a trash can a plastic baggie that
turned out to contain 11 smaller baggies of cocaine base.
When they arrested him, the officers found a bag of marijua-
na and $329 in cash on his person.
The defense offered the testimony of four witnesses who
said they saw a man other than Earle running from the police
the night of the incident: George Lewis, Derrick Vaughn,
Pedram Roshan and Earle’s girlfriend, Anna Baylor.
George Lewis testified he had known Earle for ten years
but did not know his family. On cross examination he stated
Tun’s investigator served him with a subpoena about one
month before trial and spoke with him at that time but took
no notes. According to Lewis, before that time he had not
‘‘spoken to Mr. Tun or anybody associated with Mr. Tun
about th[e] case.’’ 9/5 Tr. at 109. He testified that, a couple
of days after talking with Tun’s investigator, he met with
Tun, who was writing in a notebook ‘‘[m]ost of the time’’
during the interview. Id. at 110. Lewis also admitted on
cross that, contrary to his direct testimony that he did not
know Earle’s family, he did know Earle’s brother, Domingo
Stephenson, on whose behalf he had testified at the criminal
trial that Tun mentioned at the July 11 hearing and that at
that trial he had, in similar fashion, falsely testified that he
did not know Stephenson’s family.
Derrick Vaughn testified he knew Earle because they
played basketball together. On cross-examination, Vaughn
testified he met with Tun’s investigator in January 2002. He
stated initially that she ‘‘was writing things down’’ during the
interview, then clarified that she ‘‘didn’t write everything [he]
told her’’—specifically, that she ‘‘didn’t write down what [he]
said, what [he] told her’’—and finally that he was ‘‘not sure’’
whether she wrote down anything. 9/5 Tr. at 175–76.
Vaughn stated he met with Tun a few weeks before trial but
could not recall whether Tun took any notes during the
interviews. Id. at 175.
Pedram Roshan testified that he also knew Earle from
playing basketball. On cross-examination he stated he had
3
met with Tun’s investigator around the third week of January
2002 and that she was writing things down while he was
‘‘telling her [his] story.’’ 9/5 Tr. at 201.
Anna Baylor testified that she was interviewed by Tun’s
investigator a few weeks after Earle’s arrest and by Tun
twice, once while ‘‘[i]t was still cold outside,’’ 9/5 Tr. at 244.
She could not recall whether either Tun or the investigator
took notes.
At the end of the court session on September 5, the district
court, at the government’s urging, asked Tun to check his
files to see if he had any notes, taken either by himself or his
investigator, of interviews with the witnesses. The following
morning Tun reported that he had none. The government
then requested that the court instruct the jury there were no
such notes.
At the close of the defense case, the government requested
that the court take judicial notice of Tun’s representation,
contained in the continuance motion, that the ‘‘[d]efendant
and his family retained undersigned counsel to represent
defendant on July 10, 2002’’ and that the court so instruct the
jury. Tun opposed the motion, although he did not, indeed
could not, dispute the accuracy of the requested instruction.
When the court informed counsel it would advise the jury that
there were ‘‘no contemporaneous notes’’ of interviews by Tun
or his investigator, Tun agreed to the instruction. As the
majority notes, the court delivered both instructions to the
jury.
I agree with the majority that the court did not err in
taking judicial notice of the date Tun was retained as defense
counsel or in advising the jury that there were no notes of
defense interviews with the witnesses. As the majority notes,
the challenged jury instructions were neither confusing nor
misleading and the facts they relayed were relevant because
they undercut the defense witnesses’ credibility. I cannot
agree, however, that it was in any way improper for the
prosecutor to suggest to the jurors the following unremarka-
ble inferences from the instructions: that it was unlikely Tun
paid his investigator to interview the witnesses in January
4
2002, some 6 months before Tun agreed to represent Earle on
July 10 when Earle’s family came up with a down payment,
that the notes Roshan (and initially Vaughn) testified were
taken did not exist and that just maybe, then, the witnesses
were lying about the interviews. The prosecutor’s argument
was wholly proper and there is no ground to reverse. The
majority’s ‘‘rationale’’ for its contrary disposition is bewilder-
ing.
The majority finds the government’s suggestion in closing
argument that Tun’s investigator did not interview the wit-
nesses in early January 2002 is impermissible because it is
inconsistent with the evidence or at least with Tun’s asser-
tions to the court. The inconsistency, however, lies with the
defense. Contrary to the majority’s view, the testimony of
the three defense witnesses (and Tun’s own claims during
trial) that Tun’s investigator interviewed them in January
2002 flatly contradicts Tun’s blanket, unqualified statement
contained in the July 10, 2002 continuance motion that the
same witnesses ‘‘have yet to be subpoenaed or interviewed’’
and his separate assertion, made in the same motion, that
‘‘counsel will not be prepared to try this matter on July 12,
2002 due to his inability to interview, investigate and subpoe-
na appropriate witnesses for defendant’’ (emphasis added).
The unambiguous meaning of the quoted language is that, as
of the motion’s date, the newly-emerged defense witnesses
had not been interviewed by either Tun or his investigator.
To bolster its position, the majority points, curiously, to
Tun’s practice of not taking notes when interviewing clients,
which I can only suppose is intended to explain the discrepan-
cy between the defense testimony that the investigator took
notes when she interviewed them and the fact the notes do
not exist. How Tun’s personal notetaking practices are rele-
vant to the issue eludes me. Equally inexplicable is the
majority’s reliance on Tun’s declarations about his own visits
with Earle to support the view that Tun must therefore have
paid the investigator to interview the witnesses.
I also disagree that the prosecutor’s statement necessarily
prejudiced Earle—although, given that the government’s ar-
5
gument was permissible, the issue need not be reached. See
United States v. Edelin, 996 F.2d 1238, 1243 (D.C. Cir. 1993)
(in determining whether to reverse convictions on account of
misstatement in closing argument, ‘‘the court has required a
finding both that the prosecutor’s actions were improper and
that they substantially prejudiced the jury.’’ (citing United
States v. North, 910 F.2d 843, 897 (D.C. Cir. 1990))). The
unimpeached testimony of the police officers consistently and
unequivocally identified Earle as the fleeing man who discard-
ed the firearm and the bags of cocaine and from whom, at the
time of his arrest, the police recovered a bag of marijuana
and a large sum of cash. By contrast, the defense testimony
was at times tentative, grudging, inconsistent or plainly false.
For example, on cross-examination Lewis acknowledged that
he testified incorrectly on direct that he was unfamiliar with
Earle’s family and admitted he had similarly mistestified at
Earle’s brother’s trial; as noted above, Vaughn equivocated
over whether the investigator had taken notes during his
interview; when asked if he had been convicted in Maryland
of possessing marijuana and cocaine, Roshan responded ‘‘I
don’t believe I was really convicted. I served community
service,’’ 9/11 Tr. at 195–96; and Baylor testified erratically
or evasively about when she was first interviewed by Tun,
whether the shopping mall she said she and Earle had visited
the night of the arrest had only recently opened at the time,
what route she took from the mall to the Kwik Mart and even
whether Earle was her ‘‘boyfriend’’—in fact she testified she
did not even know where Earle lived. And it is not surpris-
ing that the jury sent a note asking how the investigator
located the witnesses, maj. op. at 10, given that Roshan had
testified that Earle did not know Roshan’s last name yet the
investigator had no problem locating and identifying Roshan
on a public basketball court. Further, if the jurors during
deliberations ‘‘harbored doubts about the identity of the
fleeing suspect,’’ as the majority infers from their question
about fingerprints, maj. op. at 10, the doubts were not
resolved as a result of the allegedly improper argument,
which had already occurred—although resolved they were by
the next morning’s verdict. As for Baylor’s presence at the
6
Kwik Mart, her proximity to her ‘‘boyfriend’’ was unremarka-
ble and—along with the presence of her car—could well
account for Earle’s decision to flee there. Finally, the majori-
ty suggests that the prosecutor made ‘‘central’’ the ‘‘collater-
al’’ issue of Tun’s performance as a lawyer in this case. But
it was Tun who personalized the issue. He spoke at length in
his closing (filling several pages of the transcript) about what
a lawyer ‘‘who cares about his client’’ would do under the
circumstances, 9/16 Tr. at 97, and what he and his investiga-
tor in fact did before trial.
In sum, the prosecutor’s argument was simple, straightfor-
ward and entirely logical. He asked the jurors to consider
whether the defense witnesses’ testimony was credible, that
is, was it likely, as the witnesses testified, that defense
counsel would have sent his paid investigator to interview
witnesses 6 months before he agreed to represent Earle and
that during the interviews the investigator would have taken
notes that did not exist. The jurors apparently reached the
same conclusion as the prosecutor.