United States v. Harris, Anthony

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2006 Decided June 22, 2007

No. 05-3026

UNITED STATES OF AMERICA,
APPELLEE

v.

ANTHONY HARRIS,
APPELLANT

Consolidated with
05-3033

Appeals from the United States District Court
for the District of Columbia
(No. 04cr00157-01-02)

Matthew D. McGill and James W. Beane, Jr., appointed by
the court, argued the causes for appellants. With them on the
briefs was Miguel A. Estrada.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III and Martin D. Carpenter, Assistant U.S.
 2

Attorneys. Thomas J. Tourish, Jr., Assistant U.S. Attorney,
entered an appearance.

Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion dissenting in part filed by Senior Circuit Judge
WILLIAMS.

BROWN, Circuit Judge: This case arises from a peculiar
example of urban entrepreneurship—the drive-by drug bazaar.
The essential components of these enterprises include a whole-
saler with an appreciable stash of drugs (the “bagman”), one or
more retail clerks to handle individual transactions (“runners”),
and a handy supply of customers who wait in vehicles, engines
idling, while the merchandise is delivered. At about 2:30 A.M.
on March 3, 2004, Metropolitan police officers noticed (as one
would later testify) “a long line of cars that appeared to be
getting served by hand-to-hand transactions . . . like a drive-
through.” Trial Tr. 79, Oct. 13, 2004. One man “was standing
on the curbside” while two others “were flagging down and
running up to cars” bringing what appeared to be currency from
the cars to the bagman and clear plastic bags from the bagman
to the cars. Id. at 108. The police moved in for the bust. One
of the two runners, Anthony Harris, promptly surrendered. The
other, Antonio Roundtree, led police on a quarter-mile chase and
then “gave up. . . . [H]e said he was too tired and couldn’t run
no more.” Id. at 84. The bagman ran and escaped. A search of
Roundtree and Harris yielded neither drugs nor money, but
where the bagman had been standing, officers found tucked
behind a street sign a plastic bag containing 37.6 grams of crack
cocaine in 101 small baggies. Roundtree and Harris were
arrested; by the end of March, they were indicted for possession
 3

with intent to distribute five grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). The two pled
not guilty, went to trial on October 13, and were convicted on
October 18.
On appeal, Harris and Roundtree present one individual
claim each and share two claims in common. Harris argues his
trial counsel was ineffective for failing to raise a Speedy Trial
Act claim. Roundtree argues the district court committed
reversible error by curtailing testimony from favorable wit-
nesses. Both defendants claim the trial judge’s ex parte contact
with the deliberating jury prejudiced the verdict. And both
defendants protest an approach to aiding and abetting that makes
them liable for the quantity of five grams or more of crack
cocaine. Finding that the district court did not violate the
Speedy Trial Act, abuse its discretion in circumscribing direct
examination, substantially and injuriously influence the jury’s
verdict through its ex parte contact, or err in its approach to
aiding and abetting, we affirm the judgment of the district court.

I
We begin in the pretrial period with Anthony Harris’s
ineffective assistance of counsel claim. About six months went
by between indictment and trial in this case. During that time,
Antonio Roundtree was released on bail, while Anthony Harris,
a young man with what the district court called a “ridiculous”
criminal history (including fifteen convictions, among them
contempt, escape, and violation of the Bail Act, and about twice
as many arrests), was held as a flight risk. Sentencing Hr’g Tr.
26, Feb. 18, 2005. Arguing his lengthy pretrial detention
violated the Speedy Trial Act, which requires that a criminal
trial “shall commence within seventy days from the filing date
. . . of the information or indictment” barring periods of
excludable delay, 18 U.S.C. § 3161(c)(1), Harris claims his trial
counsel was constitutionally deficient for not saying so, and that
 4

but for this deficiency, a timely motion would have led to his
release.
An ineffective assistance of counsel claim, according to the
Strickland v. Washington two-prong test, 466 U.S. 668 (1984),
requires determining, first, on a “highly deferential” standard of
review and with great regard for counsel’s “strategic choices,”
whether counsel’s performance was so deficient as to fall
“below an objective standard of reasonableness” and deprive
defendant of the “‘counsel’ guaranteed . . . by the Sixth Amend-
ment,” and, second, whether counsel’s deficient performance
was prejudicial, i.e., whether “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 687–94. This test
is fact-intensive, and the facts at issue are often orthogonal to
those explored at trial. Massaro v. United States, 538 U.S. 500,
505 (2003) (“The evidence introduced at trial . . . will be
devoted to issues of guilt or innocence, and the resulting record
in many cases will not disclose the facts necessary to decide
either prong of the Strickland analysis.”). Thus where a
defendant asserts an ineffective assistance of counsel claim for
the first time on direct appeal, as Harris does, “this court’s
general practice is to remand the claim for an evidentiary
hearing unless the trial record alone conclusively shows that the
defendant either is or is not entitled to relief.” United States v.
Rashad, 331 F.3d 908, 909–10 (D.C. Cir. 2003) (internal
quotation marks omitted); see also United States v. Fennell, 53
F.3d 1296, 1303–04 (D.C. Cir. 1995) (same). We do not
reflexively remand. Rather, we interrogate the trial record
according to Strickland’s familiar two prongs, remanding for an
evidentiary hearing if the record is anything less than conclusive
on a relevant matter of fact. Here, both sides claim the record is
conclusive in their favor and, in the alternative, call for a
remand.
 5

We begin with the threshold legal question of whether the
delay between Harris’s indictment and trial violated the Speedy
Trial Act at all, for it is difficult to see how counsel could be
deficient for failing to protect speedy trial rights that were never
infringed, and very difficult to see how a defendant could be
prejudiced by the omission of a meritless motion. Harris was
indicted on March 30, 2004; his trial began on October 13.
Between those two dates, there is no dispute that pending
motions tolled the Speedy Trial Act clock from May 10 through
August 5 (when the court held a hearing and disposed of some
motions) and September 30 through October 13 (when trial
began). See 18 U.S.C. § 3161(h)(1)(F) (excluding “delay
resulting from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt
disposition of, such motion”). This leaves ninety-six days either
untolled or disputed.1 The dispute centers on a document the

1
This circuit has spoken decisively to the issue of whether to
exclude the particular day on which an indictment or pretrial motion
is filed. United States v. Fonseca, 435 F.3d 369, 371–73 (D.C. Cir.
2006). The seventy-day clock starts ticking “the day after the filing
date of an indictment,” id. at 373 (emphasis in original), because the
statutory language requires trial “within seventy days from the filing
date,” 18 U.S.C. § 3161(c)(1) (emphasis added). In contrast, the
exclusionary period begins “on the date of the filing of a pretrial
motion,” Fonseca, 435 F.3d at 373 (emphasis in original), because the
statutory language tolls the clock “from the filing of the motion,” 18
U.S.C. § 3161(h)(1)(F) (emphasis added). It is but a short step to add
that the particular date on which the hearing is held is also part of the
exclusionary period, since the statute excludes the whole period “from
the filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion.” Id. (emphasis added).
Finally, a logical consequence of not counting the date of indictment
toward the seventy-day total is that we must count the date of trial, as
Fonseca assumes, 435 F.3d at 372, and Federal Rule of Criminal
Procedure 45(a)(3) indicates. In the instant case, then, we do not
 6

government filed on May 10, entitled “Government’s Notice of
Intent To Impeach Defendant [Harris] with His Prior Convic-
tions Pursuant to Fed. R. Evid. 609.”
The first issue is whether to regard this document as itself
a pretrial motion tolling the speedy trial clock. This is easily
resolved: Federal Rule of Criminal Procedure 12(b) (along with
Rule 47) governs pretrial motions. Rule 12(b)(4)(A) creates a
category fitted out for the document at issue here: “[T]he
government may notify the defendant of its intent to use
specified evidence at trial in order to afford the defendant an
opportunity to object before trial under Rule 12(b)(3)(C).” Rule
12(b)(3)(C) concerns “motion[s] to suppress evidence.” Thus
the government’s notice was not a motion, but Harris’s response
“request[ing] that the Court preclude the admission of the above
mentioned evidence at trial” was one, and it tolled the clock (or
would have, were the clock not already tolled) from the date of
its filing on May 12. See also Melendez v. United States, 518
U.S. 120, 126 (1996) (“[T]he term ‘motion’ generally means
‘[a]n application made to a court or judge for purpose of
obtaining a rule or order directing some act to be done in favor
of the applicant.’” (second alteration in original) (quoting
BLACK’S LAW DICTIONARY 1013 (6th ed. 1990))).
The more difficult question is when the clock started ticking
again. At the August 5 hearing, which the court had scheduled
at the outset (and then rescheduled) to hear pretrial motions, the
district judge took up the Rule 609 issue and expressly stated his
intention to rule on it. But the motion was lost in the shuffle that
day and, since Harris did not take the stand, never revisited. The

count March 30 (the date of indictment), May 10 (the date on which
Harris filed a pretrial motion), August 5 (the date of the court’s
motions hearing), or September 30 (the date on which Harris filed
another pretrial motion), while we do count October 13 (the date on
which trial began), toward the seventy-day total.
 7

government thus characterizes the unresolved motion after the
hearing as “under advisement,” which alludes to another
exclusion on the Speedy Trial Act’s list, this one for “delay
reasonably attributable to any period, not to exceed thirty days,
during which any proceeding concerning the defendant is actual-
ly under advisement by the court.” 18 U.S.C. § 3161(h)(1)(J).
In effect, the government reads subsections (F) and (J) together
such that, when pretrial motions are filed and a hearing on them
held, a first period from filing to hearing is excluded under (F),
and then a second period extending not longer than thirty days
from the conclusion of the hearing to the resolution of the
motions is excluded under (J).2 Harris counters that the
excludable period for a pretrial motion ends simply “with the
conclusion of the hearing,” but in this the government is surely
correct. United States v. Saro, 24 F.3d 283, 292 (D.C. Cir.
1994) (“Once the hearing has been held . . . the statute also calls
for the exclusion of a period ‘not to exceed thirty days’ during
which the court actually holds the motion under advisement.”);
United States v. Wilson, 835 F.2d 1440, 1442 (D.C. Cir. 1987)

2
If the district court requests additional material after the hearing,
such as supplemental briefs, a third excludable period is added under
subsection (F). Henderson v. United States, 476 U.S. 321, 331 (1986)
(“[S]ubsection (F) excludes time after a hearing has been held where
a district court awaits additional filings from the parties that are
needed for proper disposition of the motion.”); United States v. Sutter,
340 F.3d 1022, 1030 (9th Cir. 2003) (“[T]hree distinct categories of
time are excludable: (1) the time from the filing of the motion to the
hearing (whether or not such time was reasonably necessary); (2)
additional time required to receive supplemental briefing or additional
factual materials; and (3) an additional 30 days during which the
matter is ‘under advisement.’”). On the whole, “[t]he provisions of
the Act are designed to exclude all time that is consumed in placing
the trial court in a position to dispose of a motion,” Henderson, 476
U.S. at 331, together with thirty days afterwards for the district court
to consider and act on the matter.
 8

(“The two subsections [(F) and (J)] taken together thus exclude
the time between the filing of a motion and the date it is taken
under advisement by the court, plus the time during which the
court holds the motion under advisement (up to 30 days).”); see
also United States v. Sutter, 340 F.3d 1022, 1030 (9th Cir. 2003)
(same); United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001)
(same); United States v. Davenport, 935 F.2d 1223, 1228 (11th
Cir. 1991) (same); United States v. Mentz, 840 F.2d 315, 326
(6th Cir. 1988) (same).
So Harris retreats to an alternative argument, capitalizing on
the Supreme Court’s reading of subsection (F): “Subsection (F),
written in the disjunctive, excludes time in two situations. The
first arises when a pretrial motion requires a hearing . . . . The
second situation concerns motions that require no hearing and
that result in a prompt disposition” pursuant to the thirty-day
time limit in subsection (J). Henderson v. United States, 476
U.S. 321, 329 (1986) (internal quotation marks omitted).
According to Harris, the Rule 609 dispute did not require a
hearing, so the clock started ticking from the date the court was
briefed (May 12) and ran out thirty days later—long before the
August 5 hearing. But where a district court chooses to address
a motion at a hearing, there is no precedent for finding the
hearing un-required for purposes of Henderson or subsection
(F), and some precedent to the contrary. See, e.g., United States
v. Stafford, 697 F.2d 1368, 1373 (11th Cir. 1983) (“If a hearing
is held, (F) by its terms excludes without qualification the entire
period between the filing of the motion and the conclusion of the
hearing.” (emphasis added)). More often the situation is one in
which the district court did not hold a hearing, or did not hold
one for many months, and the question is whether to toll the
clock under (F) or under (J). See, e.g., United States v. Bush,
404 F.3d 263, 273–74 (4th Cir. 2005). In any case, given the
substance of the government’s notice and Harris’s response, the
issue here was whether the probative value of Harris’s convic-
tion for felony escape was substantially outweighed by the
 9

dangers of unfair prejudice. This is obviously a matter on which
a district court might want some facts, and require a hearing.
Thus we subtract, pursuant to 18 U.S.C. § 3161(h)(1)(J),
thirty days after August 5 from Harris’s ninety-six-day total.
The sixty-six remaining are within the Speedy Trial Act’s
seventy-day limit. With no Speedy Trial Act violation, Harris
can make no case for ineffective assistance of counsel.

II
We turn now to Antonio Roundtree’s claim that the district
court improperly limited the testimony of three witnesses in his
favor: his mother, his girlfriend (and son’s mother), and a co-
worker, Lawrence Winters, from a charitable organization at
which Roundtree volunteered. Roundtree did not call a fourth
witness, this one an acquaintance from a fatherhood program,
because the court’s sharp oversight made the testimony, in
Roundtree’s judgment, “futile.” Appellants’ Br. 43.
Roundtree’s mother took the stand first. Counsel first asked
her whether she saw her son on the night of his arrest (“We
talked in the kitchen.”) and whether he had a job (“He’s a move
technician.”). Trial Tr. 28–29, Oct. 14, 2004. When counsel
asked, “Does Antonio have a family? . . . Describe his family
for us,” the government objected, and both parties approached
the bench:

THE COURT: You can make that objection right out in
front of everybody. It’s irrelevant. . . . [A]re you going to
put his character in issue?
[COUNSEL]: Yes. Squarely.
THE COURT: Well, the question is did he or did he not
deal the drugs, period. It’s irrelevant.
 10

Id. at 30. Counsel then quickly brought the examination to a
close.
Roundtree’s girlfriend testified next. Counsel asked her to
“[t]ell us about [the] day” on which Roundtree was arrested, id.
at 33, and the court immediately initiated a bench conference:

THE COURT: Is she a witness, an eyewitness to anything
that happened that night?
[COUNSEL]: She dropped him off. In other words,
Antonio keeps their child, he kept their child that day all
day, and then they went to her house for the evening for
dinner. . . .
THE COURT: What does that have to do with this case?
This is another way of putting on the evidence that he’s a
good father and takes care of his child and all that. That’s
irrelevant. . . . The evidence may refer to character for
truthfulness or untruthfulness.
[COUNSEL]: And I’m getting there.
THE COURT: No, you’re not going to get there. . . . When
and if he testifies and when and if his credibility is attacked,
and when you can make a proffer that her testimony will go
directly to his character for truthfulness, then you can put
this witness on. But this business of showing that he’s a
devoted husband and father, forget it.
[COUNSEL]: Well, can she at least establish she dropped
him off at a certain time?
THE COURT: No. That’s irrelevant.
[COUNSEL]: He didn’t have any drugs on him at the time
that she dropped him off.
 11

THE COURT: How does she know that? . . . I’ll let you
save enough face by getting her off the stand to testify what
time she dropped him off, period. That’s it.

Id. at 33–35. Again, the questioning came quickly to a close.
Lawrence Winters took the stand after Roundtree himself
had testified to his innocence (“I was talking to [friends] . . .
[a]nd . . . police just came up,” id. at 41) and had his credibility
challenged on cross-examination (“Now I’m confused, because
you just said you didn’t see [Harris] that night,” id. at 54). The
court twice interrupted Winters’s testimony. When counsel
asked if Winters had been able to “form an opinion with regards
to [Roundtree’s] truthfulness,” the court interjected: “Now, wait
a minute, Counsel. We’re talking reputation testimony.” Id. at
65. When counsel asked about Roundtree’s reputation for
truthfulness, the Court asked: “In what community? Among
what people? I need a better foundation than that, Counsel.
This is a very narrow question.” Id. at 66. Ultimately the wit-
ness testified that Roundtree is known for truthfulness
“[a]mongst the people that [he] interacts with.” Id. The witness
left the stand moments later, and Roundtree rested without
calling the second character witness he had scheduled.
Roundtree makes three arguments on appeal. First, he
claims the court wrongfully limited testimony from his mother
and girlfriend geared to showing he had no drugs on the night in
question and lacked the demeanor of a man about to deal drugs.
Second, he claims the court prevented him from presenting
testimony from all three witnesses (and the fourth he would have
called but for the sharpness of the court’s oversight) that would
have demonstrated his truthful character. And third, he makes
the same claim for all his witnesses with respect to a second
character trait, one he did not mention at trial but mentions on
appeal: law-abidingness. The latter two arguments concern the
district court’s exclusion of character evidence; we review for
 12

abuse of discretion. In re Sealed Case, 352 F.3d 409, 411 (D.C.
Cir. 2003) (“This court reviews a district court’s exclusion of
character evidence for abuse of discretion.”); see also Michelson
v. United States, 335 U.S. 469, 480 (1948) (Jackson, J.) (“Both
propriety and abuse of . . . reputation testimony . . . depend on
numerous and subtle considerations difficult to detect or
appraise from a cold record, and therefore rarely and only on
clear showing of prejudicial abuse of discretion will Courts of
Appeals disturb rulings of trial courts on this subject.”). The
first argument concerns mixed issues of character evidence,
relevancy, and the probity/prejudice balance; again, we review
for abuse of discretion. United States v. Fonseca, 435 F.3d 369,
373 (D.C. Cir. 2006) (stating that we generally review a district
court’s evidentiary rulings for abuse of discretion); United States
v. West, 393 F.3d 1302, 1309 (D.C. Cir. 2005) (applying abuse
of discretion standard to district court’s relevancy determination
under Federal Rule of Evidence 401); United States v. Gartmon,
146 F.3d 1015, 1020 (D.C. Cir. 1998) (applying abuse of
discretion standard to district court’s probity-versus-prejudice
determinations under Federal Rule of Evidence 403). Although
Roundtree ultimately bases his arguments on a criminal defen-
dant’s right to compulsory process for obtaining witnesses in his
favor, U.S. CONST. amend. VI; Washington v. Texas, 388 U.S.
14 (1967) (identifying compulsory process right as fundamental
and incorporating it into the Fourteenth Amendment’s Due
Process Clause), he does not claim that the district court’s
conduct, if consistent with the Federal Rules of Evidence, might
still violate his constitutional rights. We thus confine our
analysis to the Rules.
The district court’s toughest evidentiary rulings, those
against the mother and girlfriend, show one persistent aim: to
prevent testimony whose purpose was, in the court’s judgment,
purely or mainly to cast Roundtree in the sympathetic light of a
dedicated family man who spent the evening before his criminal
adventure talking with his mother, playing with his son, and
 13

caring for his girlfriend. This evidentiary position is unassail-
able; it is familiar ground that while a criminal defendant can
put character in issue, the evidence can concern only a “perti-
nent trait of character,” FED. R. EVID. 404(a)(1), and even then
may be excluded if “its probative value is substantially out-
weighed by the danger of unfair prejudice,” FED. R. EVID. 403.
United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998)
(“Furthermore, courts apply Rule 403 in undiluted form to Rules
404(a)(1)-(3) . . . .”); see also United States v. Angelini, 678
F.2d 380, 381 (1st Cir. 1982) (“The word ‘pertinent’ is read as
synonymous with ‘relevant.’”); United States v. Hewitt, 634
F.2d 277, 279 (5th Cir. 1981) (same); 22 CHARLES ALAN
WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND
PROCEDURE § 5236 (1978) (same). But see United States v.
Han, 230 F.3d 560, 564 (2d Cir. 2000) (“Federal R. Evid.
404(a)(1) applies a lower threshold of relevancy to character
evidence than that applicable to other evidence.”). Thus
Roundtree studiously avoids defending the admissibility of
evidence related to his family, arguing instead that when counsel
asked Roundtree’s mother to “[d]escribe his family for us,” and
his girlfriend to “[t]ell us about [the] day” on which he “kept
their child” until they “went to her house for the evening for
dinner,” he was only seeking testimony about Roundtree’s
demeanor and circumstantial evidence of whether Roundtree
was carrying drugs. One can understand the district court’s
suspicions. But let us take Roundtree’s stated goal for the
testimony at face value for the moment. What exactly is the
demeanor of a man about to deal drugs? Furtive? Drug-dealing
is not the most hot-blooded of crimes, particularly when the
dealing is as orderly and routinized as “a drive-through.” Trial
Tr. 79, Oct. 13, 2004. And as to the girlfriend’s testimony about
whether Roundtree had drugs when she dropped him off, even
setting aside the court’s sensible question (“How does she know
that?”), the government never suggested that Roundtree brought
the drugs to the scene. Quite the opposite: The government
 14

presented Roundtree as a runner for a bagman who got away. In
these circumstances, even if the district court had believed
Roundtree was seeking to air relevant demeanor and
circumstantial evidence rather than prohibited forms of character
evidence (something the court was not obligated to believe), the
court was nonetheless free to find the evidence excessively
prejudicial. We find no abuse of discretion on these matters.
Turning to Roundtree’s second argument, his attempt to
demonstrate truthful character, the point is simply a nonstarter
with respect to his mother’s and girlfriend’s testimony. Rule
608(a) of the Federal Rules of Evidence states: “[E]vidence of
truthful character is admissible only after the character of the
witness for truthfulness has been attacked . . . .” Roundtree had
at that time not yet taken the stand—and indeed, the court told
Roundtree’s counsel: “When and if . . . his credibility is
attacked . . . you can make a proffer that her testimony will go
directly to his character for truthfulness . . . .” As to Winters,
the court permitted his testimony to Roundtree’s truthfulness,
and at a bench conference had pre-approved the same testimony
from the uncalled fourth witness. (When Winters testified, the
court appears to have interjected to clarify whether he was
giving opinion or reputation testimony, but the court did not
indicate it was excluding either and in fact had pre-approved
both at the bench conference.) Thus Roundtree’s only option is
to argue that Winters’s reputation testimony was inadequate
because he was not “permitted to offer testimony regarding the
specifics of his interaction with Roundtree.” Appellants’ Br. 43.
But of course a witness’s credibility may not be defended on the
basis of specific acts of conduct. FED. R. EVID. 608(b). The
district court’s rulings on these matters were not abuses of
discretion; indeed, they may have been nondiscretionary.
Roundtree claims the excluded testimony of all three
witnesses, plus the uncalled fourth witness, would have demon-
strated his character for law-abidingness. The district court
 15

twice indicated second thoughts on his own rulings in this
regard. At a hearing after the close of all evidence but before
closing arguments, the court said: “I may have called that game
a little close on the defense . . . . There is a place for opinion
testimony on general character of law abidingness, of course,
but I did not understand, nor was any proffer made to me that
that’s what was coming down.” Trial Tr. 83–84, Oct. 14, 2004.
This is certainly true; there is no indication in the trial record of
Roundtree’s counsel ever mentioning the character trait of law-
abidingness. “And the other information about the defendant,
just to paint him as a good son, father, caretaker, and so forth,”
the court explained, “not only dealt with a trait of character that
is not relevant to the crime involved in this case, but even if it
were, I would have excluded it on 403 grounds.” Id. at 84. The
court then invited Roundtree’s counsel to speak in order to
“make your own record” on the issue. Id. At a status hearing
four months later, the court returned to the theme: “On a review
of the record, I think it is pretty clear that I did erroneously limit
the defendant’s ability to call a reputation witness; that is, a
character witness for the defendant’s reputation for lawfulness
in the community. However, at a later point in the record I did
what I could to redress that situation,” by permitting
Roundtree’s counsel “to respond or to make his own record.”
Tr. Status Hr’g 4, Feb. 16, 2005. The court concluded: “And I
suppose we’re going to have to leave it to the Court of Appeals
to parse the exact words that were said . . . but I still don’t see,
reading the record, that [Roundtree’s counsel] ever proffered
actual character testimony on the defendant’s character as a law-
abiding citizen.” Id.
Roundtree now seeks to treat these statements from the
district court as admissions of error analogous to an opposing
party’s concessions, closing off analysis on appeal and shifting
this court to the position of examining admitted error for
harmlessness. But a party’s concession wipes away a dispute
and with it, in most cases, our purpose in hearing an issue. A
 16

district court’s second thoughts do not make an issue disappear.
And in any case, our purpose is to evaluate the evidentiary
rulings themselves, not the court’s later remarks about them.
We cannot find fault with those rulings. Actually, the trial judge
may have been a little hard on himself. He suggested the
appellate court would have “to parse the exact words that were
said.” We have done so. Roundtree indeed made no proffer
concerning his character for law-abidingness; at trial, the only
character trait he mentioned to the court was truthfulness. There
is thus no erroneous ruling to complain of, and it is not clear
what the district court could have done differently.
III
The jury began deliberating on Thursday afternoon. Shortly
before close of business on Friday, the judge received a note
from the foreman: “Can we be excused for the day? Juror 6
needs to leave to pick up her daughter. We are not unanimous!”
(emphasis in original). As the judge later explained:

I went into the jury room, as is my practice, to release
the jury. . . . I told them that they could go home, of course,
and I complimented them on their hard work, and tried to
say nothing else.
But the jury wanted to talk a little bit. I was reluctant,
of course, to talk to them at all except to tell them that they
could go home. But they began to say things like: “[A]t
what point do we—what do we do if we can’t decide?”
And I said, “Well, I can’t really talk to you about a subject
like that without the attorneys being present.” “Well,” they
said, “maybe we need some more instruction.” And I said,
“Well, have a nice weekend. We’ll talk about it on Monday
morning.”
 17

Trial Tr. 2–3, Oct. 18, 2004. Immediately afterwards, the judge
sent counsel an email stating he wished to speak to the jury
Monday morning and asking counsel to attend. That day, before
the jury filed in, the judge reported to counsel his interaction
with the jury on Friday (as quoted above), stated his intention to
read to the jury the anti-deadlock instruction recommended by
the Council for Court Excellence, and stated his intention to re-
read the instruction inviting a verdict as to just one of the two
defendants, if they were unable to reach a verdict on both. He
invited objections, but almost immediately after that discussion
began (with a question from the government), he received a note
from the jury stating that it had a unanimous verdict. About half
an hour into the morning, the jury pronounced both defendants
guilty.
Harris and Roundtree claim the judge’s ex parte conversa-
tion with the jurors while they were deliberating constitutes
reversible error under both the statutory and constitutional
dimensions of Federal Rule of Criminal Procedure 43(a)(2):
“Unless this rule . . . provides otherwise, the defendant must be
present at . . . every trial stage . . . .” See United States v.
Gordon, 829 F.2d 119, 123 (D.C. Cir. 1987) (“As [a restatement
of existing law], Rule 43 embodies the protections afforded by
the sixth amendment confrontation clause, the due process
guarantee of the fifth and fourteenth amendments, and the
common law right of presence.”). Defendants’ argument has
three steps. First, they argue that any ex parte contact between
a judge and a deliberating jury constitutes error. See United
States v. U.S. Gypsum Co., 438 U.S. 422, 460–62 (1978)
(observing the “hazards of ex parte communications with a
deliberating jury” and finding the practice “pregnant with
possibilities for error”); Rogers v. United States, 422 U.S. 35,
39–41 (1975) (holding a trial judge’s ex parte response to a
jury’s question to violate Rule 43); United States v. Yarborough,
400 F.3d 17, 20 (D.C. Cir. 2005) (finding ex parte communica-
tions between the judge and deliberating jury “fraught with the
 18

potential for jury coercion”); Walker v. United States, 322 F.2d
434, 435 (D.C. Cir. 1963) (“[Rule 43] prohibits the judge from
communicating with the jury in any way, either before or after
it has begun to deliberate, when the defendant is absent.”).
Second, they argue that where a jury is both deliberating and
deadlocked, a judge’s ex parte communications are presump-
tively prejudicial. See United States v. Mejia, 356 F.3d 470 (2d
Cir. 2004) (vacating a conviction because the district court’s
implicit direction to “continue deliberations” despite deadlock,
delivered ex parte, plausibly “induced unanimity” (internal
quotation marks omitted)); see also United States v. Thomas,
449 F.2d 1177, 1182–84 (D.C. Cir. 1971) (en banc) (reversing
a district court for insisting that a jury keep deliberating, thus
potentially “prying individual jurors loose from beliefs they
honestly have”). They add that where the government’s evi-
dence of guilt is “‘conflicting or ambiguous,’” as they claim it
was here, “‘the danger that an error will affect the jury’s verdict
is almost always substantial.’” United States v. Cunningham,
145 F.3d 1385, 1396 (D.C. Cir. 1998) (emphasis omitted)
(quoting United States v. Smart, 98 F.3d 1379, 1392 (D.C. Cir.
1996)); see also Thomas, 449 F.3d at 1183. They also add that
where a jury returns its verdict soon after a judge’s ex parte
communication, there is reason to suspect the communication
“induced unanimity.” Rogers, 422 U.S. at 40; Mejia, 350 F.3d
at 477. Having engineered this hair-trigger standard for
prejudice, it remains only for defendants to interpret the trial
judge in the instant case as stepping over the line. Thus, third,
they characterize the judge’s Friday afternoon remarks as
implicitly charging the jury to keep deliberating, and then
characterize the jury’s verdict on Monday morning—coming
“after just 28 minutes of additional deliberation” (not to
mention two-and-a-half weekend days apart)—as the effect of
that coercion. Appellants’ Reply Br. 11.
This is a sophisticated argument, but it must contend with
the plain fact that when the jury asked to talk about the case
 19

outside the presence of counsel, the judge politely but utterly
refused to do so. Presumptions may not entirely substitute for
facts. We need not decide whether the ex parte contact was
error.3 The question is whether such a minimal and constrained
degree of contact could fail harmless error review.
The precedents defendants cite do not alter the manner of
that review. In fact, those precedents largely concern an issue
foreign to the instant case: the issue of how a judge may instruct
a deadlocked jury. On the one hand, trial judges may encourage
deadlocked jurors to reconsider their positions, Allen v. United
States, 164 U.S. 492, 501–02 (1896); on the other hand, trial
judges may not coerce a verdict, Lowenfield v. Phelps, 484 U.S.
231, 241 (1988). “This tension,” Yarborough explains, “became
the subject of countless criminal appeals.” 400 F.3d at 21. We
sought to stem the tide by approving a standardized instruction
in Thomas, 449 F.2d at 1187, and we insisted on that standard-
ized instruction in Yarborough, reversing a trial judge for
instructing a deadlocked jury with the Council for Court Excel-
lence’s somewhat stronger anti-deadlock charge, 400 F.3d at
21–22. But the trial judge in the instant case did not deliver the
Council for Court Excellence charge or any other deadlock
instruction.4

3
We would, however, caution the district court against ex parte
contact with a deliberating jury in the future, even if the contact is
intended merely to show gratitude for the jurors’ hard work or wish
them a good evening. Precedents like U.S. Gypsum, Rogers,
Yarborough, and Walker show that such communications are too
perilous for even the most conscientious judge to venture.
4
It must be said that the judge in the instant case came perilously
close to delivering the Council for Court Excellence charge, stating his
intention to do so just before getting the jury’s verdict note, which
would have made this a very different case.
 20

The best defendants can argue, then, is that what the judge
did say—“I can’t really talk to you about a subject like that
without the attorneys being present,” and “We’ll talk about it on
Monday morning”—amounted to an implicit but nonetheless
coercive message to reach unanimity contrary to the spirit of the
Thomas-Yarborough line of cases. As Harris’s counsel ac-
knowledged at oral argument, “What my case does depend on is
that you find that in sum and substance the judge instructed the
jury to continue its deliberations here.” Defendants are some-
what aided in this argument by United States v. Mejia, in which
the Second Circuit reversed a trial court for “its failure to
respond to the report of deadlock,” which “in effect directed the
jury to continue deliberations . . . [and] may have induced
unanimity.” 356 F.3d 470, 477 (2d Cir. 2004) (internal quota-
tion marks omitted). But the Mejia jury had been deadlocked
for three days, repeatedly sent deadlock notes to the judge, and
already received supplementary instruction encouraging
unanimity. Finally, it sent a note stating: “We the Jury can’t
come to an agreement—we have exhausted all possibilities &
have had the same vote for the past 2½ full days 11–1.” Id. at
473 (emphasis in original). The court responded with a rebuke
for reporting the 11–1 division, and a unanimous verdict came
back a few minutes later. Even were it authoritative within our
circuit, these facts are much more extreme than those in the
instant case. Indeed, it is not at all clear that the jury in our case
was deadlocked. The record makes clear the jurors hadn’t
arrived at unanimity as of Friday afternoon; that is all. Prece-
dents about how to instruct a deadlocked jury do not control
where the jury was neither deadlocked nor instructed as to
deadlock.
We therefore scrutinize the trial judge’s ex parte contact
with the deliberating jury in the usual way, to determine
harmlessness or prejudice. See id. at 476 (“It is well settled,
however, that an ex parte communication by a judge to a jury in
response to a jury inquiry may be considered harmless error
 21

where the communication cannot be said to have prejudiced the
defendant.”). We apply the Kotteakos standard for testing
harmlessness, evaluating whether it is “highly probable that the
error had substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Kotteakos v. United States, 328 U.S.
750, 776 (1946).5 What is the injurious influence here?
Defendants offer only the suggestion already discussed, that the
judge’s remark, “We’ll talk about it on Monday morning,”
threatened the jurors with indefinite deliberation until unanim-
ity. The suggestion would be at least a little more plausible if
the judge had said, “We’ll talk about it next Friday.” Monday
was the next working day after an early dismissal on Friday
afternoon. Had the judge resolved at the moment he walked into
the jury room to declare a hung jury and a mistrial at the first
opportunity, he would have said the same.

5
We normally apply Kotteakos where trial errors do not implicate
constitutional rights and the more stringent Chapman v. California
standard, 386 U.S. 18, 24 (1967) (requiring the government to prove
harmlessness beyond a reasonable doubt), where they do. United
States v. Lane, 474 U.S. 438, 460–61 (1986). Rule 43, as noted above,
is a peculiar hybrid, codifying rights with origins in the Fifth and
Fourteenth Amendments’ Due Process Clauses, the Sixth
Amendment’s Confrontation Clause, and the common law right of
presence. United States v. Gordon, 829 F.2d 119, 123 (D.C. Cir.
1987); United States v. Brown, 571 F.2d 980, 986–87 & n.5 (6th Cir.
1978); see also United States v. Gagnon, 470 U.S. 522, 526 (1985).
Although defendants assert that the trial judge’s error implicated their
due process rights, we see no due process violation according to the
standard Justice Cardozo promulgated in Snyder v. Massachusetts, 291
U.S. 97, 107–08 (1934): “[T]he presence of a defendant is a condition
of due process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.” See also Gagnon,
470 U.S. at 526–27 (finding no due process violation for brief and
nonsubstantive ex parte contact between judge and jurors).
 22

IV
Harris and Roundtree join in a final argument, this one cast
as a sufficiency of the evidence claim and aimed at their
conviction under 21 U.S.C. § 841(b)(1)(B)(iii), giving a five-
year minimum for possessing with intent to distribute the
quantity of five grams or more of cocaine base. Drug dealing
operations often employ “runners,” who don’t control the stash,
and “holders,” who do; the runners help secure customers for the
holders. United States v. Monroe, 990 F.2d 1370, 1372 (D.C.
Cir. 1993). Harris and Roundtree were runners. The evidence
at trial gave no indication that they ever personally controlled
the plastic bag filled with 37.6 grams of crack cocaine, or even
carried as much as five grams back and forth to the waiting cars.
The government proceeded on an aiding and abetting theory
under 18 U.S.C. § 2 (holding aiders and abettors punishable as
principals under federal criminal law), and defendants argue the
evidence was insufficient to show they aided and abetted in
possessing “more than five grams of cocaine base,” Appellants’
Br. 44 (emphasis in original). See also United States v. Lam
Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir. 1991) (“[A]n
indictment need not specifically include an aiding and abetting
charge because, whether specified or not, the federal statute
creating liability for aiding and abetting is considered embodied
in full in every federal indictment.” (internal citation and
quotation marks omitted)). We review sufficiency of the
evidence claims on a “demanding” standard, id., investigating
“whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original).
There is law exactly on point in our circuit. In United
States v. Monroe, a woman (Monroe herself) sold an undercover
officer 0.41 grams of crack. The officer asked how he could get
 23

more. “I only have this one,” she said, “but you can get one
from my buddy,” who was sitting beside her and had 13 grams
of crack. 990 F.2d at 1372. Monroe was convicted, on an
aiding and abetting theory, of possession with intent to distribute
all 13 grams. This circuit ruled against her sufficiency of the
evidence appeal, stating that under 18 U.S.C. § 2: “It is enough
for the Government to establish Monroe’s involvement in the
general scheme, thereby assisting or encouraging [her friend’s]
possession of the drugs with intent to distribute them. The
evidence is sufficient to support Monroe’s conviction if the
Government proves that Monroe acted as a middleman—
procuring the customers and maintaining the market in which
the possession is profitable.” 990 F.2d at 1374 (internal
quotation marks omitted); accord Nye & Nissen v. United States,
336 U.S. 613, 619 (1949) (finding sufficient evidence for
conviction as an aider and abettor where a defendant “‘in some
sort associate[s] himself with the venture . . . participate[s] in it
as in something that he wishes to bring about . . . seek[s] by his
action to make it succeed’” (quoting United States v. Peoni, 100
F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.))); United States v.
Poston, 902 F.2d 90, 94 (D.C. Cir. 1990) (finding sufficient
evidence for conviction as an aider and abettor where a narcotics
defendant lacked actual or constructive possession of the drugs
and served only as a lookout); United States v. Raper, 676 F.2d
841, 848–52 (D.C. Cir. 1982) (finding sufficient evidence for
conviction as an aider and abettor where a narcotics defendant
acted as a runner for a bagman, collecting money but never
directly handling drugs).
Harris and Roundtree attempt to argue their position under
Monroe, interpreting the case to require that they “encourage[]
the bag man not simply to possess contraband, but rather to
possess more than five grams of contraband by creating an
environment in which possession of that amount was profit-
able.” Appellants’ Reply Br. 23 (emphasis in original). But
here, as in Monroe, a rational jury could find that the joint
 24

venture aimed, and defendants aimed, to distribute the entire
stash. See Raper, 676 F.2d at 849 (“What is required on the part
of the aider is sufficient knowledge and participation to indicate
that he knowingly and willfully participated in the offense in a
manner that indicated he intended to make it succeed.”).
Defendants can do little else but urge us to abandon Monroe,
claiming it is inconsistent with the text of 18 U.S.C. § 2 and Nye
& Nissen. But even if this panel had authority to overturn
Monroe, the case is plainly a faithful if expansive interpretation
of § 2’s laconic text, as was Nye & Nissen itself.

***

The judgment of the district court is therefore
Affirmed.
 WILLIAMS, Senior Circuit Judge, dissenting in part:
Although I don’t think the court is necessarily wrong in its
analysis of the Speedy Trial Act issue, I think the decision is
at least questionable—and in the end avoidable because, even
if there was a violation, trial counsel’s failure to raise the issue
probably didn’t demonstrate ineffective assistance of counsel
within the meaning of Strickland v. Washington, 466 U.S. 668
(1984). Accordingly, I think a remand to the trial court would
be the better course.

* * *

The relevant facts are these: On May 10 the government
gave notice of its intent to impeach Harris with his prior
convictions, and Harris responded on May 12 by filing a
motion asking the court to exclude any such evidence. The
government filed no opposing papers. There the matters
languished until August 5, when the court held a hearing to
wrap up pending motions, namely, Harris’s requests for
suppression and for exclusion of the Rule 609 evidence. At
that time both Harris and the government made clear that as to
the Rule 609 motion they intended to file no further papers,
and sought neither argument nor an evidentiary hearing. The
court on August 5 denied the suppression motion, but no one
said anything on the merits of Harris’s effort to exclude the
prior convictions. We may infer that at that point the Rule
609 motion was taken “under advisement,” a critical condition
under the Act, if it wasn’t already under advisement.

According to the majority, the Act directs exclusion of
the entire time from May 12, 2004 (when the defendant filed
his motion in response to the government’s Rule 609 notice)
until 30 days after August 5, the date of the omnibus hearing
on pending pre-trial motions.
 2

The relevant provisions of the Act are exclusions under
subsections (F) and (J) of 18 U.S.C. § 3161(h)(1). Subsection
(F) excludes

delay resulting from any pretrial motion, from the filing
of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion.

Id. § 3161(h)(1)(F). Subsection (J) excludes

delay reasonably attributable to any period, not to exceed
thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court.

Id. § 3161(h)(1)(J). Because Harris makes no real objection
to the exclusion of the period from May 12 to August 5, the
only question is how much time thereafter, if any, can be
excluded on the basis of the Rule 609 motion. That in turn
depends on whether the motion came “under advisement” by
the court on August 5 or sooner.

To be clear, my disagreement with the majority concerns
only the treatment of the Rule 609 motion. The question is
when that motion came under advisement. If that happened
only on August 5, as the court says, another 30 days are
excluded pursuant to subsection (J); if it came under
advisement before August 5, then the 30 days afforded by
subsection (J) started running before August 5. Depending on
when that moment was, some or all of the 30 days available
for the Rule 609 motion under subsection (J) may have run
concurrently with the days concededly excluded between May
10 and August 5.

The Supreme Court in Henderson v. United States, 476
U.S. 321 (1986), held that subsection (F) announces a general
rule of exclusion, irrespective of the reasonableness of the
delay, subject to the limit imposed by subsection (J). See id.
 3

at 326–29. According to the Court, only 30 additional days
can be excluded under subsection (J) once a “district court has
a motion ‘under advisement,’ i.e., 30 days from the time the
court receives all the papers it reasonably expects.” Id. at 329.
Henderson goes on to depict two possible scenarios, one
where a motion “requires a hearing,” and the other where it
does not. Id. (Henderson doesn’t say whether these two
exhaust the possibilities.) As to the first, subsection (F)
excludes all of the time from the filing of the motion until the
hearing, and subsection (J) excludes up to 30 days thereafter.
As to the second, where no hearing is required, subsection (J)
is triggered at the point where “the court receives all the
papers it reasonably expects.” Id. By this the Henderson
Court likely meant the period allowed under court rules for
responses and replies, see id. at 328, subject to a trial court’s
case-specific adjustments.

The court finds subsections (F) and (J) fully applicable by
describing the trial court as having chosen “to address [the
Rule 609] motion at a hearing,” i.e., the August 5 event.
Majority Op. at 8. On that view the majority excludes the
entire time from May 12 to August 5 under subsection (F) (a
matter not very important in itself because of the defendant’s
concession), plus 30 days after August 5 under subsection (J).
A proceeding in which evidence is taken, or the merits of a
motion are argued, qualifies as a “hearing” that triggers
subsection (J), i.e., the moment of a motion’s coming “under
advisement,” but it seems to me questionable to give that
effect to a proceeding that features no substantive colloquy on
the motion whatever, and occurs long after the filing of papers
has drawn to a close. Why didn’t the motion come “under
advisement” at the point where the government’s time to
respond expired, which under D.D.C. Crim. R. 47(b) would
appear to have occurred 11 days after Harris’s May 12
motion?
 4

There is a path by which one might arrive at the court’s
conclusion. Henderson divided the universe into motions
requiring a hearing and ones requiring no hearing, but left
unclear whether there might be other categories. What of
motions for which the need for a hearing is uncertain at the
time of filing, or at the time when all further filings are
complete or time-barred? Assuming Harris’s Rule 609
motion fell into that category until August 5, when it became
clear that neither party felt any need for evidence, oral
argument, or further papers, perhaps it was only at that
moment that the court reasonably understood itself to have
“receive[d] all the papers it reasonably expect[ed],” thus
triggering subsection (J). A difficulty with this analysis is that
it leaves unexplained why the mere possibility of a hearing
should stop the clock. Or must the defendant flag the
government’s non-response in order to restart the clock? If
the courts are to pursue this approach, they will have to invent
all the subsidiary rules themselves, with no help from the Act.

Moreover, any such rationale for the court’s result is at
least in tension with the First Circuit’s decision in United
States v. Scott, 270 F.3d 30 (1st Cir. 2001). There the district
court had scheduled a hearing for September 16, 1999, but the
hearing didn’t take place because of bad weather; the parties
then made clear that they were content to submit their motions
on the filings. Four months later, the district court called for
supplemental briefing. Id. at 54. Although a literal reading of
Henderson might yield the conclusion that the district court
had not taken the motion “under advisement” on September
16 because the court had not “receive[d] all the papers it
reasonably expect[ed],” Henderson, 476 U.S. at 329, the First
Circuit decided that this limbo period could not be excluded:

The [Act] makes no provision for what the district
court did here: not decide the motion for 124 days and
then retroactively seek to explain the lack of prompt
 5

disposition by saying it needed additional filings,
although it had taken the matter under advisement earlier.
Nor does the [Act] make any provision for a district court
effectively to take a matter under advisement for
decision, but then to avoid the [Act’s] timeline by saying
that matter was not under advisement within the meaning
of the [Act]. We do not think the [Act] permits either
course of action. Such an approach would undermine the
purposes of the [Act].

Scott, 270 F.3d at 56. Scott is plainly distinguishable, to be
sure. There everything suggested that the motion had come
under advisement on September 16, whereas here the question
of when the motion came under advisement is unresolved—
though it is hard to see why it should have been later than the
point where a government response was time-barred
(evidently 11 days after Harris’s May 12 motion). If
subsection (J) was triggered well before August 5, as seems
likely, the district court would still have been free to conduct a
hearing. But under subsection (J) it would have had to reach
that decision within 30 days after the matter came under
advisement, or risk restarting the Speedy Trial Act clock.

There are, to be sure, many complex permutations. For
example, as the paragraph above suggests, the court may take
a motion under advisement but later determine that further
briefing or argument is necessary. In such a situation, if the
court called for the submissions within 30 days, the period up
to that call would be excluded under subsection (J), the time
allotted for submissions would be excluded under subsection
(F) (because the motion would no longer be under
advisement), and only then would the 30-day subsection (J)
time limit begin to run again (starting at zero, or subtracting
the time elapsed before the call for more submissions?). Also,
as other circuits have noted, the 30-day limit of subsection (J)
might not apply rigidly when multiple motions are pending
 6

before a district court. See Scott, 270 F.3d at 57 n.19; United
States v. Tibboel, 753 F.2d 608, 611–12 (7th Cir. 1985).
Under Tibboel the multiplicity of motions might call for a
period under advisement exceeding 30 days, so that a finding
of no violation might be correct even if the Rule 609 motion
came under advisement well before August 5. A remand here
could disclose details governing the application of this latter
exception, if it proved necessary.

* * *

Because of the uncertainty surrounding the alleged
Speedy Trial Act violation, particularly the date on which the
Rule 609 motion should be considered as having been taken
“under advisement,” I would remand the case so that the
district court could resolve the issue in the most economical
way. The briefing suggests (though the trial court may know
better) that this would be by first deciding whether, assuming
there was a violation, Harris’s attorney’s conduct amounted to
ineffective assistance under Strickland. Then, if necessary,
the court would decide whether there was a Speedy Trial Act
violation, taking into account whatever might shed light on
the effects of the parties’ collective inactivity after May 12
with respect to the Rule 609 motion.