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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
–————
Argued April 6, 2004 Decided June 11, 2004
No. 01-3017
UNITED STATES OF AMERICA,
APPELLEE
v.
DENNIS HALL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(98cr00435–01)
A.J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Roy W.
McLeese III, and Daniel M. Cisin, Assistant U.S. Attorneys.
Thomas J. Tourish, Jr., Assistant U.S. Attorney, entered an
appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge; HENDERSON and RANDOLPH,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: This is the third time the case of
United States v. Hall has been before us. In the earlier
cases, the government appealed district court orders granting
Hall new trials. United States v. Hall, 214 F.3d 175 (D.C.
Cir. 2000); United States v. Hall, 324 F.3d 720 (D.C. Cir.
2003). We reversed both orders. In this case, Hall appeals
his conviction for possessing a firearm by a convicted felon
(18 U.S.C. § 922(g)(1)). His arguments are that his trial
attorney’s failure to file a timely new trial motion constituted
ineffective assistance and that errors at trial, mainly during
closing argument, tainted the verdict.
I.
At the close of the government’s case-in-chief, the district
court told the jury that the prosecution and defense stipu-
lated that Hall had been convicted in the District of Columbia
of ‘‘a crime punishable by imprisonment for a term exceeding
one year’’ (18 U.S.C. § 922(g)(1)). Hall’s defense was that he
did not possess the pistol recovered under a van just after
midnight on December 3, 1998.
The events leading to recovery of the pistol that evening
are as follows. Plainclothes officers were on a routine patrol,
traveling in two marked police cruisers in the Barry Farms
housing project, a high crime and drug area in the District of
Columbia. Officers noticed Hall alone in a walkway between
townhomes. As one of the police cars approached, Hall
bolted. Officers in the other car saw Hall running through
the alleys. Two of these officers – Moye and Rollins – got
out of their car and watched Hall run around another house.
Officer Moye saw him stop behind a van, bend down and
place an object under the van, and start running again, this
time toward the two officers. Officer Rollins detained Hall
while Officer Moye went to the van, under which he found a
loaded .22 caliber pistol. He left the pistol there, returned to
Officer Rollins and ‘‘motioned with [his] lips’’ that there was a
3
gun under the van. Hall, who was on his knees facing away
from Officer Moye, asked Officer Rollins: ‘‘What did he say,
there’s a gun under the car? Did he say he found a gun?’’
The officers then arrested Hall. A search incident to the
arrest produced a small amount of marijuana. (Hall was also
indicted for illegally possessing marijuana; he conceded his
guilt at trial.)
The jury returned its verdict of guilty on May 5, 1999.
Under Federal Rule of Criminal Procedure 33(b)(2), new trial
motions based on grounds other than newly discovered evi-
dence must be filed within seven business days after the
verdict ‘‘or within such further time as the court sets during
the 7-day period.’’ See FED. R. CRIM. P. 45(a) & (b)(2). On
May 14, seven business days after May 5, Hall’s attorney filed
a motion to extend the time for filing a new trial motion. The
district court did not act on the extension motion until early
June, when the court issued an order ‘‘nunc pro tunc,’’ giving
Hall until June 10 to file a motion for a new trial. Hall filed
his motion on that date and, over the government’s objection,
the district court granted it. We reversed on the ground that
the district court had no authority under Rule 33 to grant an
extension of time after the seven-day period expired. 214
F.3d at 178.
On remand, the district court again ordered a new trial,
this time on the basis of ‘‘newly discovered evidence,’’ a
ground that may be raised within three years of the verdict.
FED. R. CRIM. P. 33(b)(1). The newly discovered evidence was
the failure of Hall’s attorney to file a new trial motion within
seven business days of the verdict. We reversed, holding
that the court erred in granting ‘‘a new trial based on conduct
that did not occur until after trial.’’ 324 F.3d at 724.
II.
Hall’s claim of ineffective assistance of counsel rests on the
proposition that his attorney should have filed a new trial
motion rather than a motion for extension of time. We think
there is nothing to this. Hall’s attorney complied with the
rules; she missed no deadlines; her motion was timely; and
4
Rule 33 clearly authorizes motions for extensions of time to
file new trial motions. As we have recognized, seven days
may not always be ‘‘adequate time to make a well-supported
motion for a new trial,’’ which is why Rule 33 ‘‘affords judges
great flexibility to set a new due date,’’ United States v.
Marquez, 291 F.3d 23, 28 (D.C. Cir. 2002). It is true that
Hall’s attorney waited until the eleventh hour before seeking
an extension and thus ran the risk that the district court
might not act before the end of the seven-day time limit (or
might deny the motion at the last minute). But it is also true
that the attorney’s assistant called the district court’s cham-
bers several times on the afternoon of May 14 to stress the
urgency of the motion. The district court took no action, not
out of neglect, but deliberately, apparently believing – incor-
rectly – that it could ignore the Rule 33 deadline. The court
explained in its nunc pro tunc order of June 3 that it ‘‘held
the motion [for extension] in abeyance in order to afford the
United States an opportunity to respond,’’ United States v.
Hall, No. 98-435-LFO (D.D.C. June 3, 1999), an explanation
the court reiterated in its first order granting a new trial.1
United States v. Hall, No. 98-435-LFO, Order at 4 (D.D.C.
Nov. 3, 1999). Given this state of affairs, it may not have
mattered that defense counsel filed the extension motion on
the seventh business day after the verdict rather than on, say,
the third or the fourth. The local rules gave the government
eleven days to reply to the motion, unless the court ordered
otherwise, which it did not. D.C. L. CR. R. 47(b). In Hall I
we faulted defense counsel for filing an extension motion
rather than a new trial motion, stating that at oral argument
counsel for Hall ‘‘offered no explanation’’ for following the
former course. 214 F.3d at 178. Whatever may have oc-
curred at oral argument in this court, the extension motion
did provide a reason to the district court – defense counsel
1 The district court granted a new trial on the ground that the
prosecution failed to give the notice that it would use Hall’s prior
conviction in a manner permitted by Rule 404(b) of the Federal
Rules of Evidence, a point the court raised sua sponte. It is worth
noting that Hall does not make this argument in urging that we
reverse his conviction.
5
stated that she had been hospitalized, after which her trial
schedule became ‘‘especially demanding,’’ so much so that she
had not had a chance to address the issues warranting a new
trial. The district court realized that any blame could not be
laid at the feet of Hall’s attorney. In granting the first new
trial motion, the court described Hall’s motion for an exten-
sion of time as ‘‘timely’’ and stated that it would be ‘‘manifest-
ly unjust’’ to ‘‘penalize the defendant for the Court’s delay in
granting the motionTTTT’’ Hall, No. 98-435-LFO, Order at 4
(D.D.C. Nov. 3, 1999). The problem Hall encountered was
therefore not that his attorney negligently missed a deadline
as in Roe v. Flores-Ortega, 528 U.S. 470 (2000). The problem
was that the district court did not view the seven-day period
as a strict deadline. (The court was not alone in that view.
See United States v. Marquez, 291 F.3d at 26-27.) For all of
these reasons, we hold that in filing the extension motion on
the seventh day, Hall’s attorney did not perform in a ‘‘profes-
sionally unreasonable’’ manner and that Hall was not de-
prived of the effective assistance of counsel within the mean-
ing of the Sixth Amendment to the Constitution. Strickland
v. Washington, 466 U.S. 668, 691 (1984).2
III.
Hall complains that the prosecution referred to his felony
conviction too often in its arguments to the jury: four times
in the opening argument, eight times in the closing argument,
and four times in the rebuttal. Hall never objected on this
ground3 and so the question is whether the district court
2 Hall argues that the government waived a challenge to the new
trial rulings because it did not contest the merits of those rulings in
Hall I or Hall II. We decided both cases on jurisdictional grounds
in favor of the government. That the government limited its
arguments to those jurisdictional grounds did not signify that it was
waiving any argument in support of the verdict after the new trial
orders had been vacated and Hall had appealed his conviction.
3 Citing the transcript of the prosecutor’s opening argument, Hall
claims he attempted to make such an objection. The claim is
frivolous. After the prosecutor referred – for the first time – to
6
committed plain error in not, at some point, calling a halt to
these remarks. United States v. Olano, 507 U.S. 725, 732
(1993).
In United States v. Moore, 104 F.3d 377, 382 (D.C. Cir.
1997), we stated that a defendant may ‘‘be unduly prejudiced
by repeated and gratuitous references to the existence of the
previous conviction.’’ Hall relies heavily on this statement,
but the undue prejudice Moore had in mind did not relate to
the § 922(g) charge in that case; it related to the additional
charges that were joined with the felon-in-possession count,
charges for which a prior felony conviction was not an ele-
ment of the offense. United States v. Myles, 96 F.3d 491, 495
(D.C. Cir. 1995), and United States v. Jones, 67 F.3d 320, 322
(D.C. Cir. 1995), are additional examples.
The only other charge against Hall was possession of
marijuana, as to which he conceded his guilt. In effect, then,
the case was the same as if he were tried on a one-count
indictment for possessing a firearm after being convicted of a
felony. In such prosecutions, mentioning the defendant’s
previous conviction to the jury can hardly be considered
‘‘gratuitous’’; the conviction is an element of the offense, as
the district court instructed the jury in this case. A written
copy of those instructions was with the jury when it was
deliberating, as was the indictment. Both documents, of
course, recited Hall’s prior conviction and served as a con-
stant reminder to the jury of that uncontested fact. The
Hall’s status as a felon and then said there was a stipulation to that
effect, Hall’s attorney began ‘‘Your Honor’’ and was cut off by the
court, which stated ‘‘That’s all right.’’ Three points. One, it is
impossible to view this as an attempt to object on the ground that
the prosecutor had mentioned Hall’s conviction too many times. At
the time of the exchange, the prosecutor had mentioned this but
once. Two, in context the most likely point defense counsel wanted
to make was that the prosecutor should not have referred to the
stipulation. Defense counsel’s interjection occurred not at the first
mention of Hall’s conviction but when the prosecutor then referred
to the stipulation. Three, despite many opportunities, at no point
did defense counsel ever object on the ground that the prosecutor
was mentioning Hall’s conviction too often.
7
prosecutor’s mentioning of Hall’s conviction more than a
dozen times in her opening and closing arguments only
reminded the jury of something it already knew. All but a
few of the references either stated the nature of the § 922(g)
charge or the fact that Hall’s status as a felon was uncontest-
ed. The remaining references consisted of the prosecutor’s
argument that Hall fled from the police because he knew he
was a felon and did not want to be caught with a firearm.4
Repetition may or may not be an effective way to argue a
case. Prosecutors – like defense attorneys – may strike
‘‘hard blows,’’ although not ‘‘foul ones.’’ Berger v. United
States, 295 U.S. 78, 88 (1935). While we do not deny the
discretion of district courts to rein in overly zealous prosecu-
tors, we hold that the district court did not commit plain error
in failing to limit the prosecutor to some number (unspecified
by Hall) of references to Hall’s conviction.
Hall also takes issue with another aspect of the prosecu-
tor’s argument to the jury. In response to the prosecutor’s
contention that Hall fled from the police because he was a
convicted felon, defense counsel told the jury that it is normal
for young black men in the District of Columbia to feel
intimidated by, and run from, the police. In rebuttal, the
prosecutor challenged this assertion and asked the jury not to
‘‘let [defense counsel] get away with playing the race card.’’
Hall objected, but the district court took no corrective action.
The prosecutor’s statements were not an improper reply to
the argument of defense counsel. The prosecutor implored
the jury not to take race into account; defense counsel
wanted the jury to consider Hall’s race. Thus, unlike United
4 Defense counsel objected, unsuccessfully, that this was a misuse
of Hall’s conviction. Although Hall’s argument on appeal is that the
sheer number of references to his conviction constituted undue
prejudice, one sentence in his opening brief claims there was no
evidence that he ran from the police because of his prior conviction.
This one sentence, unaccompanied by argument or any citation to
authority, does not preserve the issue for decision. See, e.g., United
States v. Mathis, 216 F.3d 18, 27 n.4 (D.C. Cir. 2000); SEC v.
Banner Fund Int’l, 211 F.3d 602, 613-14 (D.C. Cir. 2000).
8
States v. Richardson, 161 F.3d 728, 736-37 (D.C. Cir. 1998),
the prosecutor was not injecting race into the case. See also
United States v. Doe, 903 F.2d 16, 24 (D.C. Cir. 1990). He
was trying to take race out of the case.
Hall also contends that the prosecutor, in his rebuttal
argument, improperly asked the jury what possible motive
Officers Moye and Rollins would have to lie and asserted that
it was ‘‘ridiculous’’ to claim that they would put their careers
at risk to win one conviction. Hall cites United States v.
Boyd, 54 F.3d 868 (D.C. Cir. 1995), where we said that a
prosecutor’s remark about a police officer not risking his
career for one conviction ‘‘was clearly improper.’’ Id. at 871.
There is no indication in Boyd that the prosecutor was
responding to defense arguments. In this case, Hall’s attor-
ney attacked the officers’ credibility, stating among other
things that it was ‘‘unconscionable that two police officers
could take the stand against anyone and not tell you the
whole truth,’’ that Officers Moye and Rollins had a ‘‘stake in
the outcome of this trial,’’ and that they wanted ‘‘some
validation of their police conduct.’’ Defense counsel thus
suggested that the officers’ desire not to jeopardize their
careers gave them a motive to commit perjury. The prosecu-
tor’s denial of this suggestion did not constitute prejudicial
error.5 See United States v. Young, 470 U.S. 1, 12-13 (1985);
United States v. Robinson, 59 F.3d 1318, 1323 (D.C. Cir.
1995); United States v. Nnanyererugo, 39 F.3d 1205, 1209
(D.C. Cir. 1994).6
* * *
For the reasons stated, the judgment of conviction is
affirmed.
5We do not mean to say that the defense argument – or the
prosecutor’s reply – was proper. See United States v. Young, 470
U.S. 1, 11 (1985).
6 We have considered and rejected Hall’s other arguments.