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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2004 Decided November 12, 2004
No. 03-3095
UNITED STATES OF AMERICA,
APPELLEE
v.
SHAWN VADELL EDWARDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00054-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the brief was A.
J. Kramer, Federal Public Defender. Neil H. Jaffee, Assis-
tant Federal Public Defender, entered an appearance.
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 at the time the brief was filed,
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
Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Eliza-
beth Trosman, and Stephen J. Gripkey, Assistant U.S. Attor-
neys.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
GARLAND, Circuit Judge: A jury found defendant Shawn
Edwards guilty of unlawful possession of a firearm by a
convicted felon. At the trial, police officer Brian Glover
testified on direct examination that he apprehended Edwards
after a chase that ended when the officer knocked a gun from
Edwards’ hand. Glover also testified on redirect examination
that he chased Edwards because Edwards ran from him, and
people who had run from him in the past had been carrying
guns or drugs. On appeal, Edwards contends that the latter
testimony was inadmissible because it was not relevant to
whether he possessed a gun on the night in question. Al-
though the government agrees that such testimony would not
have been admissible if offered during direct examination, it
argues that Edwards’ counsel rendered the testimony rele-
vant by a cross-examination that impugned the officer’s mo-
tive for chasing the defendant. We agree and affirm the
judgment of the district court.
I
On February 6, 2003, a grand jury indicted Edwards on a
single charge of possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). The
principal witnesses at Edwards’ trial were police officers
Brian Glover and Christopher Dove. On December 6, 2002,
the two drove a marked police car on routine patrol in
northwest Washington, D.C. Glover testified that, while driv-
ing east on the 100 block of Q Street, he and Dove observed a
group of men, including Edwards, loitering in front of a
residence. Because residents of the neighborhood had com-
plained to the police about people standing in front of their
homes, Glover said he called out to the group: ‘‘Gentlemen,
y’all need to move on.’’ 5/8/03 Tr. at 68. The men started to
walk away; Edwards walked in one direction and his compan-
3
ions walked in another. Edwards, who had his hand in his
jacket, then yelled at the officers: ‘‘What the f*** you looking
at?’’ Id. at 69.
Glover testified that, because the officers were on a one-
way street with traffic behind them, they drove around the
block. As the officers drove down First Street, they again
encountered Edwards, who ‘‘was looking over his shoulder’’ at
them. Id. at 72. According to Dove, Edwards then ‘‘[ran] his
mouth again.’’ Id. at 137. Glover and Dove moved on,
circling the block once more. This time they encountered
Edwards on Bates Street.
Officer Glover testified that, upon this third encounter,
Officer Dove ‘‘yelled over to [Edwards], and stated, what the
F is your problem?’’ Id. at 73. Edwards replied with:
‘‘[W]hat the F are you looking at?’’ Id. As Glover began to
get out of the police car, Edwards took off running through
an alley, holding his left jacket pocket. Glover gave chase on
foot, and Dove drove around to the other end of the alley.
When Edwards emerged from the alley, running in front of
the police car, Dove got out and joined the chase. Both
officers testified that, as Dove neared Edwards, the latter
reached into his jacket, pulled his hand out, and turned
towards Dove with a semi-automatic pistol. Dove then tack-
led Edwards, knocking the pistol — later found to be fully
loaded — into the snow. After a brief struggle, the officers
subdued Edwards with pepper spray and arrested him.
In the course of cross-examining Officer Glover, defense
counsel repeatedly suggested that, after first encountering
Edwards, the officers pursued him because he had yelled a
profanity at them. This line of questioning reached its
crescendo when counsel suggested that the officers had decid-
ed to harass Edwards:
Q. TTT [Y]ou decided on that third sighting to stop
your car there on Bates Street and confront him; is that
right?
A. Yes, sir.
TTTT
4
Q. You and Officer Dove had talked about jacking up
this guy who was vulgar and profane with you; isn’t that
right?
A. No, sir.
Q. You had talked about, I think maybe we should
confront this young man about his profanity; isn’t that
right?
A. About the profanity, sir, yes.
Q. So you and Dove had talked about this is what we
should do.
A. No. If we see him, find out what’s his problem, yes,
sir.
Id. at 103-04.
After defense counsel finished cross-examining Officer Glo-
ver, the prosecutor alerted the court, in limine, that on
redirect examination he planned to ask Glover certain ques-
tions for rehabilitative purposes:
[Defense counsel], through his questioning, from my
perspective elicited testimony that suggests that the
officer was somehow doing something wrong when he
chased someone who immediately fled as he got out of
his car. I intend to ask him questions about other
experiences he’s had where people have fled, whether he
has found drugs and guns on those individualsTTTT I
think that’s appropriate, given the connotations that
[counsel] has raised with his questions TTTT
Id. at 120-21. When the court asked defense counsel whether
he had any objection to this line of questioning, counsel
responded: ‘‘I’ll think about it.’’ Id. at 121. The prosecutor’s
questioning of Glover then proceeded as follows:
Q. Defense counsel also focused on your pursuit of the
defendant when he began running.
A. Yes, sir.
Q. Have you pursued other individuals who have run
when they’ve seen you?
A. Yes.
5
[DEFENSE COUNSEL]: I’m going to object on this
point on relevance, what he’s done in other cases.
[PROSECUTOR]: And it’s based on what we raised
before.
THE COURT: I understand that, and I am going to
overrule the objection.
Id. at 126-27. Following the court’s ruling, the prosecutor
resumed his questioning:
Q. And why do you — on those other occasions when
you’ve pursued individuals, have you recovered weapons
and drugs?
A. Yes.
Q. Is that true in every case that you followed some-
one?
A. On a foot pursuit, yes.
Q. Okay. And when he ran, did you have any suspi-
cion?
A. The way that he was holding his left side of his body,
like if he’s holding something from falling out of his
jacket or pocket area, the left side.
Q. What did you suspect? Did you have any suspicion
about what it might be?
A. On foot chases like that, from my prior knowledge,
could be —
[DEFENSE COUNSEL]: I’m going to object. This is
clearly irrelevant. This is clearly improper.
Id. at 127.
At the ensuing bench conference, Edwards’ counsel
charged that ‘‘the government is now being allowed to create
the impression that because this officer has had successful
foot chases in the past[,] TTT this must have been a successful
foot chase.’’ Id. at 128. The prosecutor denied the charge,
arguing that defense counsel ‘‘has attacked, in essence, the
credibility and the aura of the encounter between Officer
Glover and the defendant, and he attacked the basis for the
officer getting out of his car.’’ Id. The prosecutor continued:
‘‘He’s attacking [the officers’] motives for pursuing the defen-
6
dant, and I am TTT attempting to establish through factual
questions the basis for their having suspicion.’’ Id. at 128-29.
The court agreed with the prosecutor, stating that ‘‘it seems
to me [Glover’s] motive in this case can be that he decides to
chase based on his experiences in other cases.’’ Id. at 129.
Although the court overruled the objection, it offered to give
a limiting instruction to the jury and invited counsel to submit
one. No limiting instruction was submitted.
After the bench conference, the prosecutor concluded his
questioning as follows:
Q. Why were you chasing this man?
A. Because he ran off from when I tried to make
contact with him, and he was holding his left side inside
of his jacket. It was my suspicion that he might have
been carrying narcotics. They usually run and they
throw drugs or possibly a weapon.
Q. But you don’t know — he could have been carrying
nothing; isn’t that correct?
A. Yes, sir.
Id. at 131.
Edwards did not testify, and the defense called no wit-
nesses on his behalf. The parties stipulated that Edwards
had a prior felony conviction and that the pistol had been
transported in interstate commerce. On May 12, 2003, the
jury found Edwards guilty as charged.
II
On appeal, Edwards presents a single issue for review:
whether Officer Glover’s testimony — that he chased Ed-
wards because in every case in which an individual had run
from him in the past, the individual had been carrying guns
or drugs — was relevant. Appellant’s Br. at 1 (Statement of
Issues Presented for Review). Under Federal Rule of Evi-
dence 402, evidence is admissible only if it is relevant. FED.
R. EVID. 402. Evidence is relevant, in turn, if it has ‘‘any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence.’’ FED. R.
7
EVID. 401. We review a trial court’s evidentiary rulings,
including its admission of testimony over a relevance objec-
tion, for abuse of discretion. See, e.g., United States v.
Smith, 232 F.3d 236, 241 (D.C. Cir. 2000).
Edwards contends that the only facts ‘‘of consequence to
the determination’’ of his case were whether he knowingly
possessed a firearm, whether he had previously been convict-
ed of a felony, and whether the firearm had been transported
in interstate commerce. He further contends that Glover’s
redirect testimony had no ‘‘tendency to make the existence
of’’ any of those facts ‘‘more probable or less probable.’’ The
government agrees with Edwards that the testimony would
not have been admissible on direct examination to prove that
the defendant knowingly possessed a gun. Oral Arg. Tape at
17:15-17:50.
Nonetheless, the government contends that Glover’s testi-
mony was relevant to whether Glover was biased against
Edwards and thus not a credible witness. That fact was of
‘‘consequence to the determination of the action,’’ the govern-
ment maintains, because the cross-examination had made it
so. The government argues that defense counsel’s cross-
examination created the inference that Edwards’ use of pro-
fanity had so incensed the officers that they decided to harass
him — to ‘‘jack[ ] up this guy who was vulgar and profane,’’
5/8/03 Tr. at 103 — and that the officers’ bias was the motive
both for their pursuit of Edwards and for their subsequent
testimony that the gun in question fell from his hand. It was
to rebut this inference, the government explains, that it
offered Glover’s redirect testimony. The purpose of the
testimony was to show that the chase was motivated not by
Glover’s desire to harass the defendant, but rather by his
experience with people who had fled from him in the past.1
The government’s argument is persuasive. As we have
noted before, ‘‘[s]ome matters are properly provable only
1Of course, the redirect testimony also had a ‘‘tendency to make’’
an ultimate fact — Edwards’ possession of the pistol — ‘‘more
probable.’’ FED. R. EVID. 401. It had this tendency because, by
rehabilitating Glover after the attack on his credibility, it made it
8
because the opposing party has made them such.’’ United
States v. Russo, 104 F.3d 431, 433 (D.C. Cir. 1997).2 Indeed,
Edwards agrees that Glover’s previous experience with flee-
ing defendants would have been relevant had his counsel
actually questioned Glover’s reasons for chasing Edwards
after he began running. Oral Arg. Tape at 22:20-22:55; see
Reply Br. at 3. But Edwards insists that the cross-
examination did not imply that Glover had an improper
motive for chasing him after he fled. Rather, he maintains,
the cross-examination merely suggested that the officer had
an improper motive for repeatedly circling the block after
their first encounter.
We do not believe that the cross-examination can be parsed
so finely. It is true that certain portions focused on the
officers’ motives for circling the block.3 But other portions
made no distinction between the decision to circle the block
and the decision to chase Glover after he fled.4 In particular,
more likely that his testimony that Edwards had a gun was true.
See generally FED. R. EVID. 401 advisory committee’s note (‘‘The
fact to be proved may be ultimate, intermediate, or evidentiary; it
matters not, so long as it is of consequence in the determination of
the action.’’).
2 Cf. United States v. Sumlin, 271 F.3d 274, 282 (D.C. Cir. 2001)
(suggesting that evidence that an informant previously testified
truthfully may be admissible to rebut a claim of bias arising out of
his plea agreement); Russo, 104 F.3d at 433-34 (holding that the
defendant’s testimony that his wife cleaned other people’s houses
for free was admissible to rebut the prosecutor’s attack on the
credibility of the defendant’s claim that his wife cleaned his employ-
er’s house for free).
3 See, e.g., 5/8/03 Tr. at 98-99 (‘‘Q. How did you feel when he made
that statement to you, ‘What the f*** are you looking at?’ A. Well,
I didn’t think nothing of itTTTT Q. So then it was Officer Dove who
wanted to go around the block to confront him again about that; is
that right?’’).
4See, e.g., id. at 99 (‘‘Q. TTT [I]f you wanted to know why he had
made that remark to you, then you were trying to confront the
defendant, were you not?’’).
9
a jury could readily have viewed defense counsel’s suggestion
that ‘‘[y]ou and Officer Dove had talked about jacking up this
guy who was vulgar and profane with you,’’ 5/8/03 Tr. at 103,
as a wholesale attack on the officers’ motives throughout the
course of events that led to Edwards’ arrest. And as we held
in United States v. Bailey, 319 F.3d 514 (D.C. Cir. 2003),
when evidence gives rise to a ‘‘plausible’’ jury inference —
even if a mistaken one — ‘‘evidence to rebut that inference is
relevant.’’ Id. at 518.
Nor did defense counsel’s statements during the bench
conferences suggest that he perceived the sharp distinction
that Edwards now asserts on appeal. Indeed, when the court
concluded that ‘‘it seems to me [Glover’s] motive in this case
can be that he decided to chase based on his experience in
other cases,’’ 5/8/03 Tr. at 129 (emphasis added), defense
counsel’s response was to attack the form of the prosecutor’s
question, rather than the court’s failure to distinguish be-
tween stages of the encounter:
That really wasn’t the question that he asked. Why did
you chase this defendant? Because he fled, and in my
experience, people who flee may have something to hide.
If that had been the question, then I probably would not
have objectedTTTT In other words, the question wasn’t
nearly as focused as I’ve just stated.
Id. at 129 (emphasis added).5
Finally, any doubt as to what inference the defense was
actually trying to suggest to the jury was dispelled by the
defendant’s closing argument. There, defense counsel made
clear he was charging that the officers’ anger over the
defendant’s language and attitude colored every stage of that
evening’s events:
It doesn’t take any kind of fancy legal argument to figure
out what was going on on the night of December 6 at the
5 As noted above, when the prosecutor resumed his redirect
examination after the bench conference, he rephrased his question
in the form suggested by defense counsel. See 5/8/03 Tr. at 131
(‘‘Q. Why were you chasing this man?’’).
10
unit block of Q Street. Mr. Edwards dissed the police.
And within 10 minutes or less, 10 minutes or less, he was
chased, he was maced, and he was busted. He made a
profane remark to the police, and within 10 minutes, he
was chased, maced, and busted. And looking back on it,
TTT isn’t it completely obvious that TTT after he made
that remark and after the police started going around the
block, TTT something bad was going to happen to Mr.
Edwards?
5/9/03 Tr. at 14. In short, because counsel claimed that it was
Edwards’ profane remark that motivated each subsequent
encounter — i.e., his being ‘‘chased, maced, and busted’’ —
the district court properly admitted the officer’s testimony
that the pursuit was instead motivated by other consider-
ations.
III
As noted above, the only issue Edwards raises in his
Statement of Issues Presented for Review is the relevance of
Glover’s redirect testimony. Appellant’s Br. at 1. Similarly,
the argument headings of Edwards’ briefs contend only that
the testimony should have been excluded because it was not
relevant. Id. at 9-10; Reply Br. at 2. Edwards has not
expressly argued — either on appeal or at trial — that, even
if relevant, the redirect testimony should have been excluded
as substantially more prejudicial than probative under Feder-
al Rule of Evidence 403.6 Nonetheless, Edwards’ brief does
declare that Glover’s testimony was prejudicial, arguing that
there was a risk that the jury would take the officer’s
testimony about other fleeing defendants as proof that Ed-
wards fled because he, too, possessed weapons or drugs.
Appellant’s Br. at 13. The government’s brief appears to
6 Rule 403 provides: ‘‘Although relevant, evidence may be exclud-
ed if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.’’ FED. R. EVID. 403.
11
treat this as an argument under Rule 403. See Appellee’s Br.
at 17-20.
At oral argument, Edwards’ counsel clarified the defen-
dant’s position. Although Edwards was not mounting a Rule
403 argument, counsel said, Edwards was contending that
any potential prejudice required exclusion of Glover’s redirect
testimony because the testimony was not relevant at all.
This argument misapprehends the structure of the Federal
Rules. If the testimony had been wholly irrelevant, it would
have been inadmissible regardless of whether it was prejudi-
cial. See FED. R. EVID. 402 (‘‘Evidence which is not relevant is
not admissible.’’). But because we have concluded that the
testimony was relevant, it was admissible unless another rule
provided otherwise. See id. (‘‘All relevant evidence is admis-
sible, except as otherwise provided by TTT these rules TTTT’’).
The rule that directly responds to Edwards’ charge of preju-
dice is Rule 403. And that rule permits the exclusion of
relevant evidence only ‘‘if its probative value is substantially
outweighed by the danger of unfair prejudice.’’ FED. R. EVID.
403 (emphasis added).
The defendant’s disinclination to make a Rule 403 argu-
ment in this case is well justified. First, the prosecutor
introduced the redirect examination with a reference that
emphasized it was a response to the cross-examination,7 and
he concluded it with a question making clear that, although
Glover’s prior experience explained why the officer chased
Edwards, it did not establish that Edwards himself had a
gun.8 Moreover, once the redirect was completed, the prose-
cutor never referred to it again, either in questioning other
7 See 5/8/03 Tr. at 126 (‘‘Q. Defense counsel also focused on your
pursuit of the defendant when he began running.’’).
8See 5/8/03 Tr. at 131 (‘‘Q. Why were you chasing this man? A.
Because he ran off from when I tried to make contact with him, and
he was holding his left side inside of his jacket. It was my
suspicion that he might have been carrying narcotics. They usually
run and they throw drugs or possibly a weapon. Q. But you don’t
know — he could have been carrying nothing; isn’t that correct?
A. Yes, sir.’’ (emphasis added)).
12
witnesses or in closing argument. Finally, while the risk that
the jury would misuse the testimony could have been further
reduced by a limiting instruction, Edwards cannot object to
the court’s failure to give such an instruction: although the
court expressly invited defense counsel to submit an instruc-
tion, he never did so. See United States v. Rogers, 918 F.2d
207, 212 (D.C. Cir. 1990) (holding that a defendant may not
appeal a district court’s failure to issue a limiting instruction
when the defendant did not request one); see also FED. R.
EVID. 105 (providing that an appropriate limiting instruction
shall be given ‘‘upon request’’).9 Accordingly, we conclude
that the probative value of Glover’s redirect testimony in
countering the inference of bias was not ‘‘substantially out-
weighed by the danger of unfair prejudice,’’ FED. R. EVID. 403.
IV
For the foregoing reasons, we hold that the district court
did not err in admitting the challenged testimony. The
judgment of the district court is therefore
Affirmed.
9 The government urges that, because Edwards failed to request
a limiting instruction, he waived any claim that Officer Glover’s
testimony unfairly prejudiced him. See Appellee’s Br. at 17-18. In
United States v. Rogers, however, this court held to the contrary:
‘‘A lawyer can choose not to ask for a limiting instruction, and if he
does choose not to ask for an instruction, he cannot appeal the
district judge’s failure to issue one. In exercising that strategic
prerogative, however, a lawyer does not thereby waive his objection
to the admission of evidence in the first instance.’’ 918 F.2d at 212
(citations omitted).