United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 14, 2007 Decided June 12, 2007
No. 05-3214
UNITED STATES OF AMERICA,
APPELLEE
v.
ROGER S. LATHERN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00031-01)
Mary E. Davis, appointed by the court, argued the cause and
filed the briefs for appellant.
Michael T. Ambrosino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III and Elizabeth
Trosman, Assistant U.S. Attorneys.
Before: SENTELLE, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
2
KAVANAUGH, Circuit Judge: Roger Lathern appeals his
conviction as a felon in possession of a firearm on the ground
that the District Court improperly excluded testimony at trial.
We affirm.
I
Well after midnight on a chilly Washington, D.C., evening
in December 2004, Wendy Hardy and Linda Green were
chatting in the front seat of Hardy’s car when they noticed a
silver car ahead of them on the street. Moments later, the silver
car drove down the street and made a U-turn, so that it was
facing in the direction of Hardy’s car. The silver car parked
next to an alley; the alley was between Hardy’s car and the
silver car. As Hardy and Green watched, two men exited the
silver car toting firearms, plainly visible in the glow of a nearby
streetlight. The men went into the alley, where they disappeared
from sight. Hardy, a civilian employee of the local police
department, called 911, and two minutes later a police officer
arrived. As the officer and Hardy were speaking, a single
gunshot was heard in the alley. Hardy called 911 a second time
and requested additional police officers, who promptly came to
the scene. The officers established a perimeter around the alley
and quickly apprehended Roger Lathern and Rahmaan Ward,
who were both unarmed.
The police conducted a show-up of Lathern and Ward, and
Hardy positively identified both men. Hardy recognized
Lathern based on his face and his distinctive single-striped shirt.
The officers also canvassed the area. They discovered a 9-
millimeter pistol and a shotgun, which had one expended shell
casing. Neither Lathern nor Ward was wearing a coat when
apprehended. The officers searched the silver car, where they
found two winter coats.
3
Lathern was indicted in the U.S. District Court for the
District of Columbia for unlawful possession of a firearm by a
convicted felon. See 18 U.S.C. § 922(g)(1). During his jury
trial, Hardy, Green, and a police officer who was at the scene
testified that the silver car had been parked near the alley or at
the “mouth of the alley.” Hardy also testified that she had
watched Lathern for between 45 seconds and a minute as he
walked from the car into the alley, and therefore was able to get
a good look at him.
The defense’s only witness was an investigator, Edward
Hainsworth, who apparently was to testify as an expert.
Hainsworth evidently had driven at some point to the scene of
the crime, parked near the alley, and estimated how long it
would take someone to walk to the alley from where the car was
parked. The obvious purpose of his testimony was to dispute
Hardy’s contention that she had observed the men for 45
seconds to a minute. Upon learning what Hainsworth intended
to say, however, the District Court excluded his testimony. The
court explained that without a witness showing Hainsworth
precisely where the silver car had been parked, Hainsworth
could not accurately assess how long it would take a person to
progress from the car to the alley. As the District Court put it,
“When [the witnesses] say it’s at the mouth of the alley, it could
be two feet from the alley. It could be five feet from the alley.
It could be one foot. We don’t know that. . . . [Y]ou are
suggesting to the jury that. . . the distance is ‘X,’ and in order for
us to know that that is an exact distance, we have got to know
that the car that he parked out there was at that exact location.”
Tr. of Aug. 22, 2005, Hr’g at 77, 79. The court further
explained: “[W]e don’t know [Hainsworth] parked at the same
location. And if you are not suggesting that, then it’s not
relevant. The only thing that’s relevant is how far the distance
was from the exact location where the car was parked that night.
4
If somebody went out there and showed him exactly, then he
could say that. Absent that, he is speculating.” Id. at 77-78.
The jury convicted Lathern, and the District Court
sentenced him to 97 months in prison along with three years of
supervised release. He filed a timely appeal in this Court.
II
Lathern challenges the District Court’s exclusion of
Hainsworth’s testimony; he argues that the exclusion violated
his Fifth Amendment right to due process and Sixth Amendment
right “to have compulsory process for obtaining witnesses in his
favor.”
1. Before turning to the merits of Lathern’s argument, we
address Lathern’s characterization of his challenge as a
constitutional question (which in turn affects how harmless error
analysis is conducted, compare Chapman v. California, 386 U.S.
18, 24 (1967), with Kotteakos v. United States, 328 U.S. 750,
776 (1946)). Lathern relies on cases such as Washington v.
Texas, 388 U.S. 14 (1967), which held that an evidentiary rule
could be so burdensome on a defendant’s right to present a
defense as to violate the Constitution. See id. at 22-23. We
conclude, however, that Lathern has not presented a
constitutional challenge. The Supreme Court has clearly
instructed that “rules excluding evidence from criminal trials . . .
do not abridge an accused’s right to present a defense so long as
they are not ‘arbitrary’ or ‘disproportionate to the purposes they
are designed to serve.’” United States v. Scheffer, 523 U.S. 303,
308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
To be sure, a case could conceivably arise in which a district
court’s application of a rule of evidence is so erroneous and
unfair as to constitute a constitutional violation. But as the
Second Circuit recently cautioned, such cases are rare. See
5
Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001). Only
when the error deprives a defendant of a fair trial does it amount
to a constitutional violation. See Chambers v. Mississippi, 410
U.S. 284, 302-03 (1973); see also United States v. Whitmore,
359 F.3d 609, 615-16 (D.C. Cir. 2004) (“The district court . . .
has considerable discretion to place reasonable limits on a
criminal defendant’s presentation of evidence . . . .”). The error
Lathern alleges in this case does not rise to the level of a
constitutional violation. Lathern had a sufficient opportunity to
present his defense and cross-examine the key prosecution
witness. The District Court stated, moreover, that it would
permit Lathern to present testimony from an alternative witness
with first-hand knowledge regarding the distance between the
silver car and the alley.
2. We therefore evaluate the District Court’s exclusion of
Hainsworth’s testimony under the typical abuse of discretion
standard for evidentiary rulings. See Whitmore, 359 F.3d at 616.
We conclude that the District Court acted well within its
discretion in excluding Hainsworth’s testimony.
Hainsworth apparently intended to cast doubt on Hardy’s
identification of Lathern by testifying how close the car was to
the alley, and then estimating the time it would take to walk into
the alley. But as the District Court pointed out, Hainsworth did
not know the actual distance of the car from the alley.
Therefore, the District Court certainly did not abuse its
discretion in excluding Hainsworth’s testimony. Cf. United
States v. Akers, 702 F.2d 1145, 1149 (D.C. Cir. 1983)
(upholding district court’s exclusion of photographic evidence
when the photographs did not accurately capture the view of the
witnesses at the time).
Even assuming the District Court erred in excluding
Hainsworth’s testimony, however, the error would be harmless.
6
See Fed. R. Evid. 103(a); Kotteakos, 328 U.S. at 776 (statutory
harmless error review standard: “substantial and injurious effect
or influence in determining the jury’s verdict”); United States v.
Coumaris, 399 F.3d 343, 349 (D.C. Cir. 2005); In re Sealed
Case, 352 F.3d 409, 411-12 (D.C. Cir. 2003); United States v.
Washington, 106 F.3d 983, 1000 (D.C. Cir. 1997). To begin
with, numerous witnesses testified about the approximate
distance between the car and the alley. And defense counsel
emphasized that evidence at closing argument to try to cast
doubt on whether Hardy really could have gotten a good look at
Lathern or seen him for 45 seconds to a minute, as Hardy had
testified. Hainsworth’s uninformed estimate of the distance
between the car and the mouth of the alley would have added
little to nothing to the evidentiary mix. In addition, the
prosecutor was prepared with significant impeachment material
against Hainsworth – his recent criminal conviction for forgery.
And, of course, there was persuasive inculpatory evidence aside
from Hardy’s identification, such as the fact that the police
immediately established a perimeter around the area, Lathern
and Ward were the two men they promptly apprehended, Green
(the woman with Hardy) also testified that the two men exiting
the silver car were carrying guns, two coats were found inside
the silver car from which the gunmen exited, and Lathern and
Ward were not wearing coats in 35-degree weather. In short,
there was overwhelming evidence that Lathern possessed a gun
that night and ditched it before being apprehended by the police.
Any error in excluding Hainsworth’s testimony was harmless.
* * *
We affirm the judgment of the District Court.
So ordered.