United States v. Littlejohn, Andrew

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2007 Decided June 19, 2007

No. 05-3081

UNITED STATES OF AMERICA,
APPELLEE

v.

ANDREW J. LITTLEJOHN, III,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00472-01)

Ketanji B. Jackson, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Mary M. Petras and Neil
H. Jaffee, Assistant Federal Public Defenders, entered
appearances.

Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III. and John
Crabb, Jr., Assistant U.S. Attorneys.
 2

Before: SENTELLE, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge SENTELLE.

TATEL, Circuit Judge: After United States Park Police
officers, pursuant to a warranted search, discovered a handgun
in the home appellant shared with his mother and brother, a
jury convicted him of unlawful possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g). Appellant challenges
his conviction, arguing that (1) the government produced
insufficient evidence that he constructively possessed the
weapon, (2) the district court erred by admitting evidence that
appellant was the target of the warrant, and (3) the district
court’s use of compound voir dire questions deprived him of
his Sixth Amendment right to an impartial jury. Although we
find the evidence sufficient to establish constructive
possession and see no abuse of discretion regarding the
evidentiary ruling, we agree with appellant that under the
particular circumstances of this case the district court’s use of
compound questions violated the Sixth Amendment. We
therefore vacate appellant’s conviction and remand for further
proceedings consistent with this opinion.

I.

Shortly after 7 a.m. on October 1, 2003, several
uniformed U.S. Park Police officers executed a search warrant
at a home at 457 Burbank Street, S.E. Residing in the house
were Mary Littlejohn, who owned the home, and her son,
Appellant Andrew Littlejohn. Although Andrew’s brother,
Wildred Littlejohn, lived in a nearby college dormitory, he
 3

returned home frequently. On this morning, however, only
Andrew Littlejohn was home.

Upon arrival, Officer Mark Adamchik, dressed in a
SWAT team uniform, knocked on the door while his partner
announced their presence. At trial, Adamchik testified that he
saw Andrew Littlejohn peek through the blinds in the door
window, whereupon his partner announced, “Police with a
search warrant, open the door.” Nov. 17, 2004 Trial Tr. at
70–71. Instead of complying, Littlejohn urged the officers to
“Hold on a second” or “Hold on a minute.” Id. at 71.
Littlejohn then disappeared behind the blinds, and after a few
seconds of silence, the SWAT team broke down the door with
a battering ram. Adamchik entered the house and ascended
the stairs to the second floor.

Understanding the issues before us requires an accurate
picture of the second floor. A hallway runs perpendicular to
the top of the stairs. To the right of the stairs are two doors,
one leading to Mary Littlejohn’s bedroom and the other to a
bathroom. To the left of the stairs are two more doors. One
of those doors, at the end of the hall, leads to what witnesses
referred to as the “left rear bedroom.” The other door, leading
to the “right rear bedroom,” is along the hallway and near the
door to the left rear bedroom.

Officer Adamchik testified that as he climbed the stairs,
he looked through the railing and saw Andrew Littlejohn six
to twelve inches outside the door to the left rear bedroom
“moving in a hurried manner” down the hall towards the
bathroom. Id. at 74. Adamchik ordered Littlejohn to “get on
the ground” and Littlejohn complied. Id. at 75.
 4

With Littlejohn secured, other officers began searching
the house. In the left rear bedroom, they noticed a laundry
basket approximately four to five feet from the door. Inside
the basket and beneath clothes and sheets, the officers
discovered a loaded 9-millimeter semi-automatic pistol. No
fingerprints were recovered from the weapon or the rounds
inside it. Also in the left rear bedroom, the officers found two
pieces of mail addressed to Andrew Littlejohn and two career
training certificates in his name. The officers discovered
other documents bearing Andrew Littlejohn’s name in the
right rear bedroom (including his high school diploma) as
well as throughout the rest of the house. On cross-
examination, Investigator David Hurley, the officer in charge
of collecting evidence, testified that although he saw
documents with Wildred’s name on them, he seized only
documents bearing Andrew’s name.

After waiving his Miranda rights, Littlejohn admitted to
Investigator Hurley that he lived in his mother’s home.
Although Littlejohn told Hurley that the bedroom “on the left”
was his, he subsequently “clarified” that he meant the right
rear bedroom. Nov. 16, 2004 Trial Tr. at 147; Nov. 17, 2004
Trial Tr. at 29. Littlejohn also told Hurley that his brother
Wildred had last been in the house three days earlier.

The defense presented a single witness, Mary Littlejohn.
She testified that Andrew lived in the right rear bedroom,
while the left rear bedroom, where the gun was found,
belonged to Wildred. She also testified that Wildred used the
basket containing the gun to carry his laundry to and from
school.
 5

Following a trial on the only contested
question—whether Littlejohn constructively possessed the
weapon—the jury convicted him of unlawful possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g).
Littlejohn appeals, presenting three claims. First, he
challenges the sufficiency of the evidence against him.
Second, he contests an evidentiary ruling in which the district
court permitted Investigator Hurley to identify Littlejohn as
the subject of the warrant. Third, he argues that the district
court’s use of compound voir dire questions deprived him of
his Sixth Amendment right to an impartial jury. We consider
each claim in turn.

II.

We review challenges to the sufficiency of the evidence
de novo, viewing the “evidence in the light most favorable to
the government, and affirm[ing] a guilty verdict where any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002) (internal quotation
marks and emphasis omitted). Moreover, we “giv[e] full play
to the right of the jury to determine credibility, weigh the
evidence and draw justifiable inferences of fact.” United
States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)
(internal quotation marks omitted).

To establish constructive possession, the government
must show that “the defendant knew of, and was in a position
to exercise dominion and control over, the contraband.”
United States v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir.
1991). Thus, “there must be something more than mere
presence at the scene of a criminal transaction. There must be
 6

some action, some word, or some conduct that links the
individual” to the contraband. United States v. Pardo, 636
F.2d 535, 549 (D.C. Cir. 1980). “[E]vidence of some other
factor—including . . . evasive conduct . . . coupled with
proximity may surpass the minimum threshold of evidence
needed to put the question of guilt to a jury.” United States v.
Gibbs, 904 F.2d 52, 56 (D.C. Cir. 1990); see United States v.
Hernandez, 780 F.2d 113, 120 (D.C. Cir. 1986) (considering
evasive conduct, among other evidence, as demonstrating
constructive possession); United States v. Reese, 561 F.2d
894, 898 (D.C. Cir. 1977) (same).

Littlejohn argues that the evidence proves nothing more
than his proximity to the gun, not his possession of it. The
documents found in the left rear bedroom, he asserts, establish
only that he had access to that room, not that he possessed its
contents. Discounting the evidence that he fled from the
officers after seeing them at the front door, Littlejohn
contends that the government’s theory—that he ran upstairs to
hide the gun—is both “inconceivable” and “sheer
speculation.” Appellant’s Br. 23.

This is a close case, but given our deferential standard of
review, we find the evidence sufficient to support the
conviction. Contrary to Littlejohn’s claim, proximity to the
weapon was not the government’s only evidence. According
to trial testimony, after seeing several fully-uniformed Park
Police officers on his doorstep, Littlejohn ran upstairs.
Officer Adamchik then discovered Littlejohn exiting the very
room in which the gun was recovered, and the weapon was
hidden in an easily accessible location only a few feet inside
the room. Given this evidence, we think it not
“inconceivable” that a reasonable jury could have concluded
 7

that after seeing the Park Police officers through the front
door window, Littlejohn evaded them by fleeing upstairs and
hiding the gun in the laundry basket.

Relying on United States v. Watkins, 519 F.2d 294 (D.C.
Cir. 1975), Littlejohn argues that evasive conduct and
proximity are, by themselves, insufficient to support an
inference of constructive possession. In Watkins, after police
officers knocked on the door to an apartment, an individual
other than the defendant opened the door and, seeing the
officers, quickly closed it. Announcing they had a warrant
but receiving no answer, the officers forced open the door.
Inside, they found the defendant in a bedroom where they also
discovered narcotics. The only evidence linking the
defendant to the apartment, other than her presence, consisted
of a few books inscribed with her name. Id. at 298. We
found this evidence insufficient to establish that the defendant
constructively possessed the narcotics.

Contrary to Littlejohn’s assertion, nothing in Watkins
stands for the proposition that evasive conduct combined with
proximity is insufficient to support an inference of
constructive possession. That issue was not before us in
Watkins because the record contained no evidence that
Watkins, as opposed to the individual who closed the door,
evaded the officers.

Watkins differs from this case for another reason. There,
we emphasized the very limited evidence that the defendant
lived in or even frequently visited the apartment where the
contraband was found. Id. By contrast, Littlejohn confessed
to living in the house where the gun was discovered, and
although the defense later introduced evidence that the left
 8

rear bedroom belonged to his brother, the fact that Littlejohn
kept personal documents in the bedroom (such as mail and
employment training certificates) suffices to establish that he
had joint access to and control over the room. As we have
held, “[a] jury is entitled to infer that a person exercises
constructive possession over items found in his home,” an
inference that “applies even when that person shares the
premises with others.” United States v. Morris, 977 F.2d 617,
620 (D.C. Cir. 1992).

III.

The second issue before us relates to Investigator
Hurley’s testimony. During his direct examination, Hurley
testified that he and the other Park Police officers arrived at
Littlejohn’s home to execute a search warrant, but he did not
explain why the warrant had been issued. On cross-
examination, defense counsel pointed out that although
Hurley testified he had found documents bearing Wildred’s
name, “the only documents that you actually picked up that
day were documents that had Andrew Littlejohn’s name on
[them].” Nov. 16, 2004 Trial Tr. at 167–68. On redirect and
over Littlejohn’s objection, the district court allowed Hurley
to testify that the warrant permitted the officers to search for
and seize documents relating to Andrew Littlejohn.
According to Littlejohn, this additional testimony was both
irrelevant and prejudicial. Given our highly deferential
standard of review, however, we can quickly dispense with
this claim. See United States v. (Thomas) West, 393 F.3d
1302, 1309 (D.C. Cir. 2005) (“When a relevance objection is
made at trial, admission of the referenced evidence is
reviewed for abuse of discretion.”); United States v. King, 254
F.3d 1098, 1100 (D.C. Cir. 2001) (reviewing for abuse of
 9

discretion district court’s decision that evidence’s probative
value is not “substantially outweighed by the danger of unfair
prejudice,” FED. R. EVID. 403).

As the government points out, defense counsel’s “cross-
examination of Investigator Hurley left the distinct impression
that the police had irrationally cherry-picked evidence to shore
up the case against” Littlejohn. Appellee’s Br. 22. Indeed,
Littlejohn continues to argue that Hurley “cherry-picked” the
evidence. Appellant’s Br. 32. By questioning Hurley’s
motive in seizing only documents bearing Andrew Littlejohn’s
name, defense counsel made the subject of the warrant
relevant. Once she opened the door, the government was
entitled to rehabilitate its witness by offering evidence of an
alternative explanation for the investigator’s actions, namely
that instead of trying to pin the gun on Littlejohn, the officers
were simply executing a warrant that authorized them to seize
his documents. The district court, moreover, limited any
prejudicial effect of this testimony by barring the government
from inquiring into why Littlejohn had been under
investigation. We thus find no abuse of discretion in the
district court’s ruling.

IV.

This brings us to the trickiest issue in this case:
Littlejohn’s challenge to the form of questioning the district
court employed during voir dire. The district court asked
prospective jurors thirty-two questions, six of which were
compound questions. For the twenty-six non-compound
questions, which Littlejohn does not challenge, prospective
jurors answering in the affirmative were asked by the court to
approach the bench. The court and attorneys from both sides
 10

then asked follow-up questions, enabling the court to
determine whether the potential source of bias constituted
grounds to dismiss the prospective juror for cause.

The six challenged compound questions were constructed
quite differently. For example, the district court asked the
prospective jurors whether they, their families, or their close
friends are or ever were employed in law enforcement. But
instead of directing the prospective jurors to answer that
question, the court repeatedly instructed them to remain silent
unless (1) they would have answered yes, and (2) they
believed that their law enforcement experience would render
them unable to evaluate the evidence impartially. The court
asked the question as follows:

The Court: . . . Ladies and gentlemen, this next
question is another one of those two-part
questions, okay, so listen carefully. If your
answer to the first question is yes, don’t raise
your hand right away, but listen very carefully
to the second question. If your answer to that
question is yes, you must raise your hand and
come up and talk to the Court about the issue.
Okay?

Now, here is the first question. And, again,
you don’t need to raise your hand. Listen
carefully. This is a question about you
personally, you personally as well as any close
family member or close personal friend.

Is there anyone in that group, either you
personally, close family member or close
 11

personal friend, who is either presently or
previously employed by any law enforcement
agency? . . . . Now, if the answer to that is yes,
listen very carefully to this question.

As a result of that experience that either you
had personally or are having right now as an
employee, as a result of that experience or as a
result of the experience of a close family
member or a close friend, . . . do you believe
that you, that you personally would be unable
to be fair and impartial to both sides if selected
as a juror in this case?

Nov. 16, 2004 Trial Tr. at 37–38. The five other compound
questions covered several additional sources of potential bias:

1) whether any of the prospective jurors “know any
member or members of this jury panel,” and, if so,
whether this would render them unable to evaluate
the evidence impartially, id. at 23–24;

2) whether any of the prospective jurors, their
families, or their close friends were “currently or
previously employed by any criminal defense
attorney or [had] been involved in any way in the
defense of criminal cases,” and, if so, whether this
would render them unable to evaluate the evidence
impartially, id. at 43–44;

3) whether any of the prospective jurors were
attorneys or studying the law, and whether, if so,
 12

this would render them unable to follow the judge’s
instructions, id. at 44;

4) whether any of the prospective jurors had
previously served as grand jurors, and, if so,
whether this experience would render them unable
to apply the higher standard of proof required in a
criminal trial, id. at 44–45; and

5) whether any of the prospective jurors had served as
a juror in a prior criminal case and, if so, whether
this experience would render them unable to
evaluate the evidence impartially, id. at 45–46.

While posing these questions, the district court repeatedly
instructed the prospective jurors that even if they would have
answered the first part of the question affirmatively, they were
to remain silent unless they believed this potential source of
bias would prevent them from fulfilling their duties as jurors.
See, e.g., id. at 23–24, 37, 43, 44, 45.

After the district court asked the first compound question,
defense counsel objected. She argued that the compound
format of the questions left her no opportunity to make an
independent determination of potential bias, leaving that
evaluation “completely up to the jurors.” Id. at 25. The
district court overruled the objection.

Renewing this argument on appeal, Littlejohn focuses on
the above-quoted compound question regarding whether the
jurors, their families, or their close friends are or have been
employed in law enforcement. As Littlejohn points out, unless
a prospective juror who worked in law enforcement believed
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that such employment would render impartial jury service
impossible, neither he nor the court would have any way of
knowing about this potential source of bias. This, he argues,
violates his Sixth Amendment right to an impartial jury.

“Voir dire examination serves the dual purposes of
enabling the court to select an impartial jury and assisting
counsel in exercising peremptory challenges.” Mu’Min v.
Virginia, 500 U.S. 415, 431 (1991). The first purpose
implicates the Sixth Amendment; the second is statutory. See
United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000)
(“[U]nlike the right to an impartial jury guaranteed by the
Sixth Amendment, peremptory challenges are not of federal
constitutional dimension.”). Making only the constitutional
argument, Littlejohn claims that the compound questions
prevented the court from selecting an impartial jury and thus
violated his rights under the Sixth Amendment.

The Sixth Amendment “includes the right to be tried by
jurors who are capable of putting aside their personal
impressions and opinions and rendering a verdict based solely
on the evidence presented in court.” United States v. Orenuga,
430 F.3d 1158, 1162 (D.C. Cir. 2005). In order to protect this
right, “[t]he defense always must be given a full and fair
opportunity to expose bias or prejudice on the part of the
veniremen.” Id. at 1163 (internal quotation marks omitted);
see also Morford v. United States, 339 U.S. 258, 259 (1950)
(per curiam) (reversing conviction because defendant had been
denied “the opportunity to prove actual bias,” which is “a
guarantee of a defendant’s right to an impartial jury” (internal
quotation marks omitted)). Although voir dire protects this
crucial Sixth Amendment right, the Supreme Court has
observed that “the adequacy of voir dire is not easily subject
 14

to appellate review.” Rosales-Lopez v. United States, 451 U.S.
182, 188 (1981). As the Court explained, empaneling a jury
able to view the evidence dispassionately and follow the law
requires the district court to examine sources of potential bias
and evaluate the credibility of answers given by prospective
jurors, a role “not unlike that of the jurors later on in the trial.”
Id. We thus accord district courts “ample discretion in
determining how best to conduct the voir dire,” id. at 189,
including the “mode and manner of proceeding” and “the
range of questions put to the prospective jurors,” United States
v. Robinson, 475 F.2d 376, 380 (D.C. Cir. 1973). We will
reverse the district court only if it “abuses [its] discretion, and
there is substantial prejudice to the accused.” United States v.
Liddy, 509 F.2d 428, 435 (D.C. Cir. 1974).

This is not the first time we have considered the
constitutionality of compound voir dire questions. In a
decision released after Littlejohn’s trial, United States v. West,
458 F.3d 1 (D.C. Cir. 2006), we considered precisely the same
compound question challenged here—whether the potential
jurors, their family members, or their close friends were or
ever had been employed in law enforcement. There, as here,
prospective jurors were instructed not to answer the first part
of the question unless they believed that this potential source
of bias would make it impossible to serve impartially.
Criticizing the compound nature of the question, we pointed
out that it “prevent[ed] the parties from learning the factual
premise of the first part of the question, relying instead upon
the juror’s self-assessment of his or her impartiality.” Id. at
10–11. “Undoubtedly,” we noted, “there are occasions upon
which further questioning is needed to permit the trial court to
make its own judgment of a juror’s impartiality based on
objective facts, rather than relying exclusively on the jurors’
 15

subjective determinations of whether they [are] prejudiced.”
Id. at 11 (alteration in original, internal quotation marks
omitted) (quoting United States v. Caldwell, 543 F.2d 1333,
1345 (D.C. Cir. 1974)). In particular, we pointed out that

the possibility of prejudice is real, and there is
consequent need for a searching voir dire
examination, in situations where, for example,
the case carries racial overtones, or involves
other matters concerning which either the local
community or the population at large is
commonly known to harbor strong feelings that
may stop short of presumptive bias in law yet
significantly skew deliberations in fact. . . .
[V]oir dire must be allowed on subjects with
respect to which bias and distorting influence
have become evident, through experience with
juries, and have come to be recognized as a
proper subject for the voir dire. This circuit has
held that the potential for jurors to attach undue
weight to the testimony of law enforcement
officials during trial is one such example.

Id. at 11 (internal quotation marks, alterations, and citation
omitted) (quoting Orenuga, 430 F.3d at 1163, and Robinson,
475 F.2d at 381). Finally—and critically to the case before
us—we warned that “more searching voir dire may be required
with respect to a prospective juror’s employment.” Id. at 12.
As an example, we cited United States v. Segal, 534 F.2d 578
(3d Cir. 1976), in which the Third Circuit ordered a new trial
where the district court, in a case involving the alleged bribery
of an IRS agent, had refused to inquire whether prospective
jurors or members of their immediate families worked for the
 16

IRS. “[P]ast employment by the specific agency prosecuting
the case,” the Third Circuit held, “is a matter which should be
explored upon a party’s request.” Id. at 581. For all these
reasons, we “‘caution[ed] trial judges not to test the outer
limits of their discretion’ and, ‘[i]n particular, . . . to avoid
asking compound questions of prospective jurors.’” West, 458
F.3d at 13 (second alteration in original) (quoting United
States v. Edmond, 52 F.3d 1080, 1099 (D.C. Cir. 1995)).

Despite our deep reservations about compound questions,
we found no Sixth Amendment violation in West.
Emphasizing that “our approval of the trial court’s actions is
inextricably linked to the particular circumstances of this
case,” id. at 13 (internal quotation marks omitted) (quoting
Edmond, 52 F.3d at 1099), we concluded that several factors,
considered collectively, ensured that the defendant had
sufficient information to challenge any prospective juror based
on possible bias in favor of law enforcement. First, both
parties had received a list of the current occupations of all
prospective jurors. Although the list contained no information
about past employment, we found this omission untroubling
because the defendant never requested such information.
Second, several non-compound questions bore on other law
enforcement experiences that prospective jurors may have had.
They were asked whether they or their close relatives or
friends had ever experienced anything that would lead them to
be biased in favor of or against testimony by law enforcement
officers; whether they had been a victim of, witness to, or
charged with a crime; whether they knew the prosecutor, the
defense attorney, the defendant, or any potential witness; and
whether they knew of “any reason that you can think of, even
though we haven’t covered it in a question, that you believe is
a basis for your inability to sit fairly, attentively, and
 17

impartially if selected as a juror.” Id. at 7. Third—and
“perhaps most important”—“the credibility of the police
witnesses was not at issue at trial.” Id. at 7–8. As we pointed
out, questions aimed at weeding out potential jurors who
would give unwarranted credence to the testimony of law
enforcement officers are less important where, as in West, the
defendant concedes the validity of the officer’s testimony. Id.
at 7–8. “Considering all of these factors together,” we
concluded that the voir dire gave the defendant sufficient
information about potential law enforcement bias. Id. at 8.
We thus found no abuse of discretion.

Although we could have stopped at this point and
affirmed the conviction, we nonetheless went on to find that
the use of compound questions caused no substantial
prejudice. In addition to the three factors listed above, several
considerations led us to that conclusion. First, the district
court expressly instructed the jury to give no special weight to
the testimony of law enforcement officers. Second, the record
contained “overwhelming” evidence of the defendant’s guilt:
the facts were not only undisputed, but they also clearly
established that the defendant constructively possessed the
gun. Id. at 8. Third, the defendant never alleged that any
specific juror harbored actual bias against him.

Littlejohn argues that several of the “particular
circumstances” that led us to affirm the conviction in West
notwithstanding our concern about the compound questions
are absent here. We agree and conclude that under the
particular circumstances of this case, the district court’s use of
compound questions violated Littlejohn’s Sixth Amendment
right to an impartial jury.
 18

To begin with, unlike in West, Littlejohn expressly asked
the court to question potential jurors about past or present
employment in law enforcement. Specifically, he proposed
the following non-compound question:

Have you or any of your relatives or any close
friends ever worked, in any capacity, for (or
have an application pending to work for) any
type of law enforcement agency, including: the
Metropolitan Police Department, the Federal
Bureau of Investigation, . . . the United States
Park Police, . . . [or] any other federal, state or
local law enforcement agency?

Def.’s Proposed Voir Dire Questions 7, ¶ 19. Indeed,
recognizing the potential for juror bias, the government
proposed a very similar question. See Gov’t’s Proposed Voir
Dire Questions 6, ¶ 11 (“Are you or any of your family or
close friends or household members a law enforcement officer
. . . ?”). The fact that Littlejohn’s proposed question asked not
only about any employment in law enforcement generally, but
also about employment by the U.S. Park Police—the agency
whose officers arrested Littlejohn—is particularly significant
given that in West we made clear that “this would have been a
much closer case” had the defendant requested the court to ask
about past or present employment by the Metropolitan Police
Department, the agency responsible for the arrest in that case.
458 F.3d at 13.

The district court, however, asked neither question,
requiring instead that jurors answer the compound question
quoted above. See supra pp. 10–11. The defect in that
question is obvious, as a simple hypothetical demonstrates.
 19

Suppose one of the prospective jurors was a thirty-year veteran
of the U.S. Park Police. Had the district court asked
Littlejohn’s proposed question, the juror would have had to
answer in the affirmative, giving Littlejohn and the court an
opportunity to explore that potential source of bias. But in
response to the district court’s compound question, the
prospective juror had to keep that information secret unless the
juror, in his or her own opinion, believed that working for the
Park Police would make it impossible to serve impartially.
Yet as we stated in United States v. Edmond and restated in
West, “whether a juror can render a verdict based solely on
evidence adduced in the courtroom should not be adjudged on
that juror’s own assessment of self-righteousness without
something more.” West, 458 F.3d at 11 (internal quotation
marks omitted) (quoting Edmond, 52 F.3d at 1097). And as
West recognizes, such self-evaluation is particularly
troublesome when jurors are asked about the potential bias
caused by their employment history. Even the most
scrupulous juror may not recognize that “lingering loyalty [to
a past employer], friendship of persons still employed there, or
knowledge of agency procedures” may color his or her
judgment. Segal, 534 F.2d at 581.

The circumstances of this case differ from West in other
important respects. First, unlike in West, nothing in the record
indicates that Littlejohn received a list of the present
occupations of prospective jurors—a particularly serious
omission given the likely reluctance of jurors to decide a case
against a current employer.

Second, again unlike in West, where the defendant
conceded the validity of the officer’s testimony, Littlejohn
vigorously challenged the testifying officers’ credibility. The
 20

government relied heavily on Officer Adamchik’s testimony
that he saw Littlejohn leaving the left rear bedroom. See supra
pp. 3, 6. Seeking to impeach that testimony, defense counsel
questioned Adamchik about the difference between his
testimony at trial—that he saw Littlejohn leaving the left rear
bedroom at the end of the hall where the gun was found—and
a previous report in which Adamchik wrote that he saw
Littlejohn exiting the bedroom at the “top of the stairs,” i.e.,
the right rear bedroom. Nov. 17, 2004 Trial Tr. at 85, 182–83.
In what the government itself labels Littlejohn’s “strongest
attack on the officers’ credibility,” Appellee’s Br. 39, defense
counsel also questioned Adamchik about his testimony that
Littlejohn’s body position and direction of motion
demonstrated that Littlejohn had just exited the left rear
bedroom—an issue counsel again focused on in her closing.
Nov. 17, 2004 Trial Tr. at 88, 181–82. And as discussed
above, see supra Part III, defense counsel, attempting to
combat Investigator Hurley’s testimony that he found
Littlejohn’s documents in the left rear bedroom,
argued—again using the government’s own words—“that
[Littlejohn] had been framed through the police’s cherry-
picking of evidence.” Appellee’s Br. 23. Summarizing this
point in closing, defense counsel argued that “Andrew
Littlejohn was the only one in the house, so the police decided
that that was Andrew Littlejohn’s gun. They have done
everything they can to convince you of that . . . .” Nov. 17,
2004 Trial Tr. at 178. Given these arguments, the jury could
never have convicted Littlejohn without crediting Officer
Adamchik and Investigator Hurley’s testimony. Yet because
of the compound question, neither the district court nor we
have any idea whether this critical credibility assessment may
have been made by jurors whose association with law
enforcement—perhaps even with the U.S. Park Police
 21

itself—predisposed them to favor the testimony of the two
officers.

Third, although we have found the evidence sufficient to
support Littlejohn’s conviction, see supra Part II, that
evidence is hardly “overwhelming,” as it was in West. 458
F.3d at 8. There, not only did the police find the gun in a bag
lying at defendant’s feet, but the defendant confessed that the
bag was his and that he had packed it himself. Id. By
contrast, Littlejohn never admitted ownership of the laundry
basket where the gun was hidden. Indeed, his mother testified
that both the laundry basket and the entire left rear bedroom
belonged to Andrew’s brother Wildred. Although the
government’s evidence revealed that Andrew Littlejohn also
had access to the left rear bedroom, joint access weakens the
normal inference that one possesses everything found in one’s
home. See United States v. Dykes, 406 F.3d 717, 721 (D.C.
Cir. 2005). Further weakening the case against Littlejohn, the
government recovered no fingerprints from the gun and
presented no testimony of anyone who had ever seen
Littlejohn with the weapon. Although jurors could have
drawn reasonable inferences from the evidence to find
Littlejohn guilty, the record hardly compels that result.

To be sure, some of the circumstances that led us to
conclude that the compound questions in West did not offend
the Sixth Amendment are also present here. For example, as
in West, several non-compound questions touched on law
enforcement issues generally, including whether the
prospective jurors personally knew any of the testifying
officers and whether they had witnessed a crime or been
victimized by one. The district court also asked the
prospective jurors whether they would “be inclined to give
 22

greater . . . weight to a police officer’s testimony . . . simply
because he or she is a police officer,” Nov. 16, 2004 Trial Tr.
at 29, and later instructed the jury not to do so, Nov. 18, 2004
Trial Tr. at 26. Certainly these questions and this instruction
reduced the threat of potential bias. None, however, directly
addressed the precise issue raised by Littlejohn (but not by the
defendant in West), namely whether the prospective jurors,
their families, or close friends actually worked for the law
enforcement agency whose officers were to testify at trial—a
question we said in West would have made that “a much closer
case.” 458 F.3d at 13.

Finally, the government points out that Littlejohn failed to
allege that any member of the jury actually harbored bias
against him, emphasizing that West termed this factor
“critical[].” Id. at 8. In West, however, we considered the
defendant’s failure to demonstrate actual bias only after
concluding that the other relevant circumstances—the
defendant’s failure to dispute the officers’ credibility, the
overwhelming evidence of guilt, and the fact that the
defendant had other sources for obtaining the only information
he had requested—demonstrated that the compound questions
caused no prejudice. Id. at 8–9. The circumstances here point
in the opposite direction: police officer credibility lies at the
heart of the case; the evidence against Littlejohn, though
sufficient, is far from overwhelming; and the non-compound
voir dire questions were inadequate to ensure that Littlejohn
had an opportunity to uncover a potentially serious source of
bias—whether any potential juror had ever worked for the
U.S. Park Police. Under these circumstances, Littlejohn’s
failure to show actual bias was hardly “critical.”
 23

Because under the “particular circumstances of this case,”
West, 458 F.3d at 13, the district court’s compound questions
denied Littlejohn “a full and fair opportunity to expose bias or
prejudice on the part of the veniremen,” Orenuga, 430 F.3d at
1163, we vacate the conviction and remand for further
proceedings consistent with this opinion.

So ordered.
 SENTELLE, Circuit Judge, concurring: I join without
reservation, and indeed with enthusiasm, the full opinion of the
majority. I write separately only to express my concern with
language from United States v. West, 458 F.3d 1 (D.C. Cir.
2006). As the majority notes, the West decision contains the
statement, in rejecting a defendant’s assertion of violation of his
Sixth Amendment right to an impartial jury, that “Finally, and
critically, West does not allege that any juror who sat on his case
was actually biased against him.” West, 458 F.3d at 8. I do not
take that sentence to establish a requirement that in order to
prove a violation of Sixth Amendment rights by an inadequate
voir dire or other prejudicial error in jury selection, a defendant
must identify an actually biased juror who sat on the case. Such
a hurdle seems to me to be impractical and in most cases
impossible. Absent some unlikely extra-judicial utterance by
such a juror or some extrinsic evidence not extant in most cases,
a defendant could not know, let alone establish the prejudice of
a particular juror.

Indeed, after the entry of a verdict, unless the defendant
makes a request before the jury is discharged, neither he nor
counsel may contact jurors except upon a showing of “good
cause.” D.C. LOCAL CRIM. RULE 24.2(b). Even if defense
counsel timely makes such a request, however, “the Court shall
inform the jury that no juror is required to speak to anyone but
that a juror may do so if the juror wishes.” Id. And even if a
juror chooses to speak to the defendant or his attorney, Federal
Rule of Evidence 606(b) strictly limits what evidence may be
admissible in challenging the verdict’s validity. See F.R.E.
606(b) (limiting post-verdict juror testimony to “(1) whether
extraneous prejudicial information was improperly brought to
the jury’s attention, (2) whether any outside influence was
improperly brought to bear upon any juror, or (3) whether there
was a mistake in entering the verdict onto the verdict form.”).
Although these rules play an important role in preventing juror
harassment, see Tanner v. United States, 483 U.S. 107, 119-20
 2

(1987) (discussing juror harassment as one of the “[s]ubstantial
policy considerations” justifying restrictions on post-verdict
testimony), they make demonstrating actual bias nigh
impossible. Requiring proof of actual bias in every case,
moreover, would place the defendant in a Catch-22 situation.
The Supreme Court justifies the strict limitations on post-verdict
juror testimony on the grounds that voir dire ensures “[t]he
suitability of an individual for the responsibility of jury service.”
Id. at 127. Those rules, in other words, assume proper voir dire.
Yet if proof of actual bias were required in all circumstances,
those same rules would prevent a defendant from successfully
challenging a defective voir dire.

I do not believe that the extracted sentence from the West
opinion was intended to establish that a juror must make such a
showing of actually biased membership on the jury in order to
prevail on a Sixth Amendment claim relating to jury selection.
As the majority notes, the sentence follows a discussion of the
compelling reasons why the compound questions in the West
jury selection did not constitute prejudicial violations of the
defendant’s Sixth Amendment rights. I therefore believe that
the sentence only intended to emphasize that in addition to the
failure of his generalized claim, the appellant had not raised any
claim of specific juror bias. This interpretation of the sentence
is supported by the fact that the West court relied on United
States v. Haldeman, 559 F.2d 31, 70-71 (D.C. Cir. 1976). The
cited portion of Haldeman follows a thorough and laudatory
discussion of the voir dire procedure followed in that case. That
discussion concluded with the observation that:

Indeed, no one who reads this transcript can fail to be
impressed with the patience, attention, and acumen with
which the judge probed the opinions of the veniremen so as
to remove those who harbored any prejudice or
preconception.
 3

Id. at 70. The section relied upon by the West court immediately
follows and states:

Our conclusion that the voir dire was adequate does not
end our review of the jury selection. As is our duty, we
have reviewed the record to ascertain for ourselves whether
appellants were tried by an unbiased jury capable of basing
its verdict solely on the evidence introduced at trial.
Appellants appear to concede this ultimate conclusion, for
they never suggest that the jury was actually prejudiced
against them or that its verdict rested on anything other than
the overwhelming evidence of their guilt. On the basis of
our own review, we have no doubt that the jury was
impartial. Accordingly, we find no reversible error
associated with the impaneling of the jury.

Id. at 70-71. Therefore, I think it plain that neither the West nor
the Haldeman opinion was holding that a showing of actual bias
by a juror or jurors is necessary to the establishment of a Sixth
Amendment violation, but only that such a showing would be
sufficient. In the absence of such a showing, the defendant must
show some other evidence of bias in the jury selection or
composition. The defendants in Haldeman and West could not
meet that need to show other evidence. As well established in
the majority opinion, the appellant before us has.