United States v. Gloster, Tyrone W.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 1999 Decided August 10, 1999

No. 98-3049

United States of America,
Appellee

v.

Tyrone W. Gloster,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 96cr00375-01)

Damien J. Marshall, Student Counsel, argued the cause
for appellant. With him on the briefs were Steven H. Gold-
blatt, appointed by the court, Catherine E. Lhamon, Supervi-
sory Attorney, and Alexis W. Martin, Student Counsel.

Barton S. Aronson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.

Lewis, U.S. Attorney, and John R. Fisher, Thomas J. Tour-
ish, Jr., and Sima Sarrafan, Assistant U.S. Attorneys.

Before: Williams, Sentelle and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland:

Garland, Circuit Judge: On the night of September 18,
1996, Tyrone Gloster was sitting on the steps of a residential
building, drinking with a number of other men. Police offi-
cers on routine patrol, having previously received complaints
regarding loitering and narcotics activity from the owner of a
nearby building, stopped to investigate. The officers asked
Gloster to stand. When he did, they discovered a loaded
semi-automatic handgun on the spot where he had been
sitting. Gloster was immediately arrested, and was subse-
quently convicted of possession of a firearm by a felon in
violation of 18 U.S.C. s 922(g)(1).

Gloster appeals his conviction on two grounds. First, he
contends that the district court improperly denied his motion
to exclude evidence of the ammunition found in the gun.
Second, he contends that the district court improperly denied
his motion for a new trial based on newly discovered evi-
dence. Finding no abuse of discretion by the trial judge, we
affirm Gloster's conviction.

I

Gloster was initially charged with two violations of 18
U.S.C. s 922(g)(1): one for possessing the firearm and one
for possessing its ammunition. Before trial, the district court
ordered the government to proceed on one count only. See
generally United States v. Clark, No. 97-3168, slip op. at 19
(D.C. Cir. Aug. 3, 1999) (holding that possession of loaded
firearm constitutes single offense), available at 1999 WL
561973 at *11. The government elected to proceed on the
gun charge, and the ammunition count was dismissed. De-
fense counsel then sought to exclude from trial any evidence
that the gun was loaded, arguing that it was irrelevant and
unduly prejudicial under Federal Rule of Evidence 403. The
district court denied the motion.

 At trial, the police officers testified that when they arrived
at the building, four men were on the steps. All were
standing except Gloster, who was sitting on the top step.
Officer Ernest Grant asked the four to show their hands "for
safety reasons." 10/24/97 Tr. at 25. All complied, but Glost-
er remained seated. Grant then asked Gloster to stand.
Gloster, said Officer Grant, "seemed to hesitate[,] as if he
didn't want to stand up." Id. at 98. When he finally did
stand, the officers saw that Gloster had been sitting "on top
of" the gun. Id. at 100; see id. at 98 ("The gun was directly
underneath his buttocks."); see also id. at 52-53, 69, 72.
Both the gun and the ammunition were entered into evidence,
the ammunition over defense counsel's objection that it was
"cumulative." Id. at 42-43.

Prior to the presentation of defendant's case, Gloster ob-
tained a written statement from a witness, Gary Riddick, who
was the registered owner of the gun. Riddick said that he
had been with Gloster and the others before the police
arrived, but had left to go to the bathroom, placing the gun
"near Mr. Gloster on the top stair." 10/27/97 Tr. at 97. At
trial, however, Riddick refused to testify, asserting his Fifth
Amendment privilege against self-incrimination. The district
court appointed an attorney for Riddick, held a hearing, and
concluded that Riddick had a good faith basis for asserting
the privilege. The court then admitted Riddick's written
statement into evidence as a statement against his penal
interest, pursuant to Federal Rule of Evidence 804(b)(3).
Gloster did not testify.

The jury found Gloster guilty as charged. Two months
later he moved for a new trial under Federal Rule of Criminal
Procedure 33, on the ground of newly discovered evidence.
The motion advised the court that Riddick was now willing to
testify, and attached a letter from Riddick discussing the
events of the night of September 18, 1996. Following a
hearing, the district court denied the motion, finding that
Riddick's proposed testimony was not newly discovered evi-
dence, that it was "not significantly different from the state-
ment" admitted at trial and therefore cumulative, and that
the evidence was not "of such a nature, given what the jury

did have before it," that it would "probably produce an
acquittal." 3/6/98 Tr. at 39-40.

II

Gloster contends that the admission of the ammunition and
of the testimony that the gun was loaded was error because
the evidence was more prejudicial than probative under Fed-
eral Rule of Evidence 403.1 We review such claims solely to
determine whether the district court abused its discretion.
United States v. Gartmon, 146 F.3d 1015, 1020 (D.C. Cir.
1998). We find no such abuse here.

Gloster's first argument is that the fact that the gun was
loaded was "not relevant to any matter properly provable to
the court." Def. Br. at 24. We disagree. Under the Federal
Rules, " '[r]elevant evidence' means evidence having any ten-
dency to make the existence of any fact that is of consequence
to the determination of the action more probable or less
probable than it would be without the evidence." Fed. R.
Evid. 401; see United States v. Latney, 108 F.3d 1446, 1449
(D.C. Cir. 1997). Gloster's defense was that the gun was
Riddick's, that Riddick had left it unattended on the steps of
the building while he went to the bathroom, and hence that it
was not within Gloster's possession. The fact that the gun
was loaded and therefore dangerous made it substantially less
probable that Riddick had simply left it unattended, and more
probable either that he left it in the possession of Gloster or
that Gloster had it in the first place. These were facts "of
consequence to the determination of the action," and the
evidence was therefore relevant within the meaning of Rule
401.

But, Gloster argues, the district court admitted evidence of
the ammunition before Riddick's statement was read to the
jury, and hence before it became relevant. The fact that the

__________
1 "Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consideration
of undue delay, waste of time, or needless presentation of cumula-
tive evidence." Fed. R. Evid. 403.

gun was loaded, however, was relevant regardless whether
there was a statement from Riddick. At a minimum, it was
relevant to support the government's claim that Gloster pos-
sessed the gun--by negating speculation that it may have
belonged to someone else, whether that "someone" was Rid-
dick or not. Indeed, while the defendant's opening statement
did not mention Riddick by name, it set forth the defense's
theory that someone other than Gloster put the gun on the
steps. 10/24/97 Tr. at 20 ("[T]he gun that the government is
now charging Mr. Gloster with having possessed that night
belonged to someone else. He was the one who put that gun
on the steps, not Mr. Gloster."). The Federal Rules of
Evidence give a trial court the authority to "exercise reason-
able control over the ... order of ... presenting evidence so
as to (1) make the ... presentation effective for the ascertain-
ment of the truth, [and] (2) avoid needless consumption of
time." Fed. R. Evid. 611(a). The court did not abuse that
authority by permitting the government to introduce evidence
that the gun was loaded as part of its case-in-chief.

Gloster's second argument is that as physical evidence, the
ammunition was merely cumulative of the officers' testimony
that the gun was loaded, particularly since Gloster did not
contest the point. There is no question, however, that physi-
cal evidence is an important part of an effective trial presen-
tation and that the "persuasive power of the concrete and
particular is often essential to the capacity of jurors to satisfy
the obligations that the law places on them." Old Chief v.
United States, 519 U.S. 172, 187 (1997). Indeed, as the
Supreme Court noted in Old Chief, even a defendant's willing-
ness to stipulate to a fact (which Gloster did not offer to do)
does not generally deprive the prosecutor of the discretion to
prove it: "[T]he familiar, standard rule [is] that ... a crimi-
nal defendant may not stipulate or admit his way out of the
full evidentiary force of the case as the government chooses
to present it." Id. at 186-87; see Gartmon, 146 F.3d at 1021
(holding that Rule 403 "does not generally require the gov-
ernment to sanitize its case ... or to tell its story in a
monotone").

 Defendant also contends that the government's repeated
references to the ammunition during its witnesses' testimony
were cumulative. But whether testimony should be truncated
on the ground that it constitutes "needless presentation of
cumulative evidence," Fed. R. Evid. 403, is quintessentially a
question we leave to the discretion of the trial court. Nor
were the prosecutor's references to the ammunition, either in
direct examination or closing argument, any more than were
permissible to rebut defendant's theory of the case. See
Clark, 1999 WL 561973 at *6.

Third, Gloster contends that the evidence the gun was
loaded was prejudicial, and that the potential for prejudice
outweighed its probative value. It is true, as defendant
suggests, that a loaded gun may suggest a "different threat of
danger" than an unloaded one. Def. Reply Br. at 15. But it
is that very dangerousness that makes it less likely someone
simply left the gun unattended on a step. Rule 403 focuses
not on "prejudice" but "on the 'danger of unfair prejudice,'
and gives the court discretion to exclude evidence only if that
danger 'substantially outweigh[s]' the evidence's probative
value." Gartmon, 146 F.3d at 1021 (quoting Fed. R. Evid.
403). The standard the Rule sets for exclusion of evidence
has not been met here.

Finally, defendant claims that the district court failed to
conduct the Rule 403 balancing on the record. Although the
court's analysis was terse, stressing the relevance issue rath-
er than the question of prejudice, so too was the defense
counsel's argument, which had the same emphasis. See
10/23/97 Tr. at 9-11; 10/24/97 Tr. at 43-44. In any event, in a
case like this, where "the considerations germane to balanc-
ing probative value versus prejudicial effect are readily ap-
parent from the record," we will not reverse a conviction
merely for a failure to conduct an on-the-record balancing.
United States v. Washington, 12 F.3d 1128, 1135 (D.C. Cir.
1994) (quoting United States v. Manner, 887 F.2d 317, 322
(D.C. Cir. 1989)); see United States v. Sutton, 801 F.2d 1346,
1362 (D.C. Cir. 1986).

 III

Gloster also contends that the district court erred in deny-
ing his motion for a new trial under Federal Rule of Criminal
Procedure 33, which permits such motions on, inter alia, "the
ground of newly discovered evidence."2 Gloster argues that
the proffered testimony of Gary Riddick qualifies as newly
discovered evidence under the Rule.

This circuit follows a five-part test for granting a motion
for a new trial based on newly discovered evidence. As we
said in United States v. Lafayette, a district court should
grant a new trial "only when the following five conditions are
met:

(1) the evidence [has] been discovered since trial; (2) the
party seeking the new trial [has] show[n] diligence in the
attempt to procure the newly discovered evidence; (3)
the evidence relied on [is] not ... merely cumulative or
impeaching; (4) [the evidence is] material to the issues
involved; and (5) [the evidence is] of such nature that in
a new trial it would probably produce an acquittal.

983 F.2d 1102, 1105 (D.C. Cir. 1993) (quoting Thompson v.
United States, 188 F.2d 652, 653 (D.C. Cir. 1951)). We will
reverse a district court's decision whether to grant such a
motion "only if the court abused its discretion or misapplied
the law." Id. The court did neither here.

The district judge found Gloster's motion to founder upon
the first requirement of the Lafayette test, that the evidence
truly be newly discovered, because Gloster was aware of its
substance at the time of trial. 3/6/98 Tr. at 39-40. Citing
United States v. Ortiz, 136 F.3d 161, 168 (D.C. Cir. 1998),
defendant concedes that "the general rule in this Circuit has
been that evidence known to the defendant at the time of trial
does not qualify as newly discovered." Def. Br. at 10; see
Ortiz, 136 F.3d at 168 ("The traditional definition of newly

__________
2 "The court on motion of a defendant may grant a new trial to
that defendant if required in the interest of justice.... A motion
for a new trial based on the ground of newly discovered evidence
may be made only before or within two years after final judg-
ment...." Fed. R. Crim. P. 33.

discovered evidence is evidence 'discovered since trial.' ").
He also concedes that we have applied this rule to post-trial
proffers of testimony from witnesses who refused to testify at
trial. He contends, however, that most of these cases in-
volved witnesses who had been codefendants, and whose
changes-of-heart did not occur until after they were convicted
and no longer had anything left to lose. Gloster urges us to
take a different view of a case like his, where the witness is a
nonparty whose testimony only became available post-trial.

Although it is true that some of the cases in which we have
applied the general rule involved codefendants, see, e.g., Unit-
ed States v. Dale, 991 F.2d 819, 839 (D.C. Cir. 1993), that was
not the situation in Ortiz itself, where the witness who
initially refused to testify was a nonparty. Ortiz strongly
suggested that even a nonparty witness' post-trial offer to
testify would fail to qualify as newly discovered evidence
where the substance of the testimony was known to defen-
dant at the time of trial. Ortiz, 136 F.3d at 168; see id. at
167 & n.12. As in Ortiz, however, Gloster's claim fails so
many parts of the Lafayette test that we need not tarry over
the first.

The district court found the substance of Riddick's prof-
fered testimony to fail the third element of Lafayette as well
as the first, concluding that the new evidence was cumulative
because it was "not significantly different from the statement
that was offered and received at trial." 3/6/98 Tr. at 43. In
reply, Gloster contends that Riddick's testimony "could pro-
vide more details" about the night of the arrest than the
statement read at trial. Def. Br. at 19.3 But to the extent
Riddick's proffered testimony was not cumulative, it fails the
second prong of Lafayette because it was not "diligen[tly]"

__________
3 At a later point, Gloster also suggests that the testimony would
include more details of Riddick's personal history, including the fact
that he is a "married father of three children with a very steady
employment history," which would assertedly enhance his credibili-
ty with the jury. Def. Br. at 20. As noted below, there was no
reason this information could not have been included in the original
written statement.

discovered. The original Riddick statement was the product
of an interview conducted by Gloster's defense counsel and
her investigator. Riddick initiated the contact; he called the
defense, volunteered to talk, and said he wanted to make a
statement. 12/27/97 Tr. at 104. Defense counsel typed the
statement herself, id. at 99, and the court admitted the
statement in its entirety. See 3/6/98 Tr. at 35-36. If the
newly proffered details truly were important, they could and
should have been included in the original statement.4

Defendant further contests the district court's conclusion
that the testimony was cumulative by arguing that the oppor-
tunity to observe Riddick's demeanor would permit the jury
"to assess more accurately the credibility of Riddick's testi-
mony" than did the mere antiseptic reading of his written
statement. Although we agree that live testimony can convey
considerably more than a cold record, in this case Riddick's
presence would represent the proverbial two-edged sword.
While it is possible Riddick's demeanor would make him more
credible to the jury, it is also possible it would make him less.
Moreover, unlike the unchallenged and unedited written
statement, live testimony would subject Riddick to cross-
examination on a host of issues, ranging from his relationship

__________
4 Defendant does not dispute that he had a full opportunity to
question Riddick before trial and to include whatever information
he wanted in the written statement admitted into evidence. Indeed,
he does not even dispute that he was aware of the details about
which Riddick now offers to testify. Instead, at oral argument
defendant suggested that his counsel may have intentionally failed
to include greater detail in Riddick's statement as a matter of trial
strategy: she expected him to testify, and may not have wanted to
subject him to cross-examination based on any inconsistencies that
might develop between the written and oral testimony. But if that
is true, Riddick's additional details are neither newly discovered nor
newly available. Rather, they are simply newly proffered, having
been intentionally withheld as a result of the defense's tactical
calculations. Events may have turned those calculations into mis-
calculations, but that is insufficient to save the proffered evidence
from failing the first prong of the Lafayette test.

with Gloster to the credibility of his claim that he left a
loaded gun on the steps while he disappeared to use the
bathroom. Because we have no way to know whether Rid-
dick's live testimony would put Gloster in a better or worse
position, we have no basis to conclude that the fifth element
of Lafayette is satisfied--that in a new trial the evidence
"would probably produce an acquittal." Lafayette, 983 F.2d
at 1105; see United States v. McCord, 509 F.2d 334, 342-43
(D.C. Cir. 1974) (en banc).

IV

Finding no error on the part of the district court, we affirm
the judgment below.