United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 1998 Decided October 9, 1998
No. 97-3082
United States of America,
Appellee
v.
Edward Maddox,
Appellant
Appeal from the United States District Court
for the District of Columbia
(96cr00151-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,
Jr., and Mary B. Murphy, Assistant U.S. Attorneys.
Before: Silberman, Randolph, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The principal issue in this appeal
is whether the conviction of Edward Maddox, after a jury
trial, for unlawful possession of a firearm by a felon (18
U.S.C. s 922(g)) should be set aside because of the prosecu-
tor's improper closing argument.
Maddox's trial lasted less than an hour. The government
presented one witness, the defense none. Officer Riddle
testified that he and six other officers drove in three police
cars to an area known for narcotics trafficking and violence.
Riddle said he spotted Maddox and two other men at the end
of a cul-de-sac. As the cars approached, the men dispersed.
Maddox began walking through a parking lot, towards the
street. Riddle testified that he saw Maddox drop something
shiny. With Maddox only a few feet away, Riddle left his car
and retrieved the object--a key on a key ring with the
insignia of the Enterprise car rental company. Riddle looked
over the cars in the lot, matched the key to an unlocked
Mazda 626 and proceeded to search the car. Under the
driver's seat, he discovered a loaded 9 mm. semi-automatic
pistol; in the glove compartment, he found several signed
Enterprise rental agreements for the car naming Maddox as
the lessee; in the console between the two front seats he
found Maddox's driver's license.
Cross-examination of Riddle revealed that no fingerprints
were found on the pistol; that no one took fingerprints from
the inside of the car; that Riddle never saw Maddox in the
car; that the key and key ring had "not been preserved as
evidence" (Tr. 122); and that at the time Riddle said he was
retrieving the key ring, most of the other six officers had
already gotten out of their cars. Defense counsel also sought
to impeach Riddle with a prior inconsistent statement regard-
ing whether he had instructed Maddox to "stop."
The prosecution and defense had entered into three stipula-
tions, which the prosecutor read to the jury at the close of the
evidence: the Enterprise leasing agreements found in the car
were true and accurate copies of records maintained in the
regular course of business; the pistol had been manufactured
in Massachusetts; and Maddox had a prior conviction for a
crime punishable by imprisonment for more than a year.
In her closing argument, the prosecutor told the jury:
[PROSECUTOR:] Where are the keys? Are the keys
the key to the case? No. If your car gets stolen and
somebody comes to me and tells me I need to prosecute
the person who stole my car, and we find a guy driving
your car, ladies and gentlemen, is the suggestion that I
need to impound your car for a year until we get around
to trying the case? No, ladies and gentlemen. You give
the property back to its rightful owner.
[DEFENSE COUNSEL]: Objection, Your Honor.
There is no evidence of that.
THE COURT: Overruled.
[PROSECUTOR]: You give the property back to its
rightful owner. And why? Enterprise rental owned
that car. It went back to its owner, ladies and gentle-
men.
The district court erred in overruling the objection. The
prosecution had introduced no evidence regarding what hap-
pened to the car and to the key and key ring after Maddox's
arrest. We have held many times before, and we hold once
again, that in closing argument counsel may not refer to, or
rely upon, evidence unless the trial court has admitted it.
See, e.g., United States v. Small, 74 F.3d 1276, 1280 (D.C. Cir.
1996); United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir.
1995); United States v. Foster, 982 F.2d 551, 555 (D.C. Cir.
1993); United States v. Teffera, 985 F.2d 1082, 1088, 1089 n.6
(D.C. Cir. 1993). The reasons are obvious. The practice
disregards, indeed violates, the rules governing the admission
of evidence. Typically, the attorney's statements amount to
blatant hearsay about matters not in the record. The trans-
gressing attorney makes himself an unsworn witness. And
when it is the prosecutor who goes outside the record, the
effect is to deprive the defendant of his right to cross-examine
the witnesses against him. See Wayne R. LaFave & Jerold
H. Israel, Criminal Procedure s 24.5 (2d ed. 1992).
None of what we have written thus far is meant to preclude
prosecutors (or defense counsel) from referring to matters of
common public knowledge or human experience. But the
prosecutor's statements in this case were of a different sort.
It is not common knowledge, and for all we know it may not
even be true, that the police customarily return car keys
having evidentiary value to the owners of the cars. It seems
far more likely that the police would retain the key pending
trial and give the owner a duplicate if one were needed. At
any rate, the prosecutor's representations went beyond any-
thing amounting to common understanding. She tried to
convince the jury that the key to this particular rental car had
been returned to the Enterprise rental company, a matter
unsupported by any evidence. And the prosecutor doubtless
employed this tactic because, an hour earlier, defense coun-
sel's opening statement stressed the fact that the key was
missing.
Still, if this had been the prosecutor's only misstep we
would be inclined to sustain the conviction. The defense
never disputed that officer Riddle seized a key to the Mazda
and, given the rental agreements designating Maddox as the
lessee, it seems beyond doubt that the key came from the
defendant. The prosecutor's improper remarks had the ef-
fect of diminishing the value of the missing evidence instruc-
tion the trial judge gave to the jury--that they were permit-
ted to draw an adverse inference from the government's
failure to produce the key and key ring. But we cannot see
how the instruction would have been of much assistance to
the defense even if the prosecutor had confined her summa-
tion to the evidence.
After the prosecutor finished, defense counsel addressed
the jury. Making the most of the little he had to work with,
counsel attacked Riddle's testimony about the defendant's
dropping of the key ring. This was a critical piece of
evidence. It tended to show the defendant's guilty knowl-
edge: Maddox must have discarded the key because he knew
the car contained something incriminating, something he did
not want the police to discover. Unless the jury disbelieved
officer Riddle on this subject, defense counsel had no pros-
pect of convincing the jury--as he attempted to do--that
because the car was unlocked in an area notorious for crime,
anyone could have placed the pistol under the seat without
Maddox knowing it, or that someone else could have been
using the car after borrowing it from Maddox. And so
defense counsel pounded away:
Mr. Maddox doesn't go away from the police.... What
does he do? What does the person do that has the keys
to the rental car, the keys that you don't have? What
does he do? He walks right towards the police and
drops them essentially right in front of the police. It is
simply preposterous, ladies and gentlemen. It is simply
preposterous. It did not happen. It did not happen. It
is not corroborated by any testimony whatsoever. Why?
Well, there is only one person who testified.
Shortly into her rebuttal, the prosecutor countered:
If [defense counsel] for one minute believed that these
names over here, that these officers--Royster, Queen,
Latson, McGee, Littlejohn and Jones--what is the mat-
ter with the government, why didn't they ... take up
three days of your time and call every one of these
officers and make them say the same thing up there and
make you guys stay here longer?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
[PROSECUTOR]: Why didn't they do that? You should
infer that they've got something to hide because they
didn't call those people, [defense counsel] says. Well,
Edward Maddox doesn't have any obligation to call a
case, but, ladies and gentlemen, use your common sense.
If [defense counsel] believed that any of those officers,
whose names he knew--if he thought any of those offi-
cers would contradict what Investigator Riddle said, do
you think you would have heard from them? You heard
nothing contradicting that officer's testimony because I
submit to you, ladies and gentlemen, that nobody's testi-
mony would have. And hearing four days' worth of the
same thing may have been exciting for some of you, but I
doubt it.
In other words, each of the other six officers would have
confirmed what Riddle had told the jury; and the jurors
could thank the prosecutor for not calling those officers to the
stand and wasting three or four days of the jurors' valuable
time.
The prosecutor crossed well over the line between the
permissible and the impermissible, as the government now
admits. Why the district court refused to sustain the defense
objection is beyond us. When a prosecutor starts telling the
jury about what other potential witnesses would have said if
the government had only called them, it is time not merely to
sustain an objection but to issue a stern rebuke and a curative
instruction, or if there can be no cure, to entertain a motion
for a mistrial. That the trial was so short and so simple
made the prosecutor's improper remarks all the more potent.
Contrast Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974);
Brecht v. Abrahamson, 507 U.S. 619, 639 (1993). The defense
had attacked Riddle's credibility, especially his testimony
about the dropping of the key. Yet the prosecutor's rebuttal
improperly propelled the jury into believing everything Rid-
dle had told them. How could the jury disbelieve Riddle
when a half-dozen other officers on the scene agreed entirely
with his version of the events? The judge's refusal to sustain
the objection, done in open court, only made matters worse.
Jurors unschooled in the proprieties of closing argument may
have thought the defense was objecting to the accuracy of the
prosecutor's representations. If so, the court's overruling of
the objection signified that the prosecutor had correctly de-
scribed what the missing witnesses would attest. Maddox did
not mount much of a defense, but he was entitled to present
his case to the jury without the extra burden of having to
overcome six additional adverse witnesses at a point when the
evidence had closed. The right to cross-examine is a "sub-
stantial" right of every defendant. The law requires us to
disregard errors and irregularities that do "not affect sub-
stantial rights," Fed. R. Crim. P. 52(a); 28 U.S.C. s 2111, but
the errors of the trial judge and the prosecutor are not of
that sort. Can we be sure that the prosecutor's improper
rebuttal and the court's erroneous overruling of the defense
objection "did not influence the jury" or had only a "very
slight effect"? Kotteakos v. United States, 328 U.S. 750, 764-
65 (1946). No, we cannot be sure of any such thing. It may
well be that in a trial uninfected by the sort of overreaching
that took place here, Maddox would have been convicted.
But that is not the correct harmless-error inquiry. See
United States v. Smart, 98 F.3d 1379, 1391 (D.C. Cir. 1996);
see also Harry T. Edwards, To Err is Human, But Not
Always Harmless: When Should Legal Error Be Tolerated?,
70 N.Y.U. L. Rev. 1167, 1199-1206 (1995). The question is
"whether the guilty verdict actually rendered in this trial was
surely unattributable to the error," Sullivan v. Louisiana,
508 U.S. 275, 279 (1993), and because that question must be
answered in the negative, the defendant's conviction cannot
stand. The judgment of conviction is reversed and the case is
remanded for a new trial.
So ordered.