United States v. Abdul Kanu

695 F.3d 74, 402 U.S. App. D.C. 368, 2012 WL 4820813, 2012 U.S. App. LEXIS 20789
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 5, 2012
Docket10-3114
StatusPublished
Cited by12 cases

This text of 695 F.3d 74 (United States v. Abdul Kanu) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Abdul Kanu, 695 F.3d 74, 402 U.S. App. D.C. 368, 2012 WL 4820813, 2012 U.S. App. LEXIS 20789 (D.C. Cir. 2012).

Opinion

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Upon being retried after a mistrial in his criminal case, appellant had requested that two stipulations entered into during his first trial not be enforced. The issue on appeal is whether the district court abused its discretion in denying that request. The stipulations related solely to whether certain phone records were authentic documents and whether they would be admitted into evidence. By their terms the two stipulations referred to an admission at “this trial” but were silent about another trial on the same charges in the indictment, and consequently were ambiguous.

Although this court has previously articulated a general rule on the binding nature of stipulations, it has not addressed the issue in the context of a criminal prosecution where the Sixth Amendment constitutional right to confront witnesses is implicated. Appellant does not contend the general rule should not apply to criminal prosecutions, only that the district court erred in applying it. We join the other circuits in applying the general rule on stipulations to criminal prosecutions, and we find no abuse of discretion by the district court in this case. The district court could reasonably view the stipulations as affirmative evidentiary admissions in the prosecution of the indicted counts. Appellant fails to demonstrate manifest injustice in being held to the stipulations; he had a full opportunity to present evidence, call witnesses, and argue to the jury that the phone records were inconsistent and thus inaccurate and due little weight — an argument distinct from the phone records’ authenticity, which he never challenged. Moreover, the authenticity of the records was a peripheral issue at his trial and any error in admitting the stipulations was harmless. Accordingly, we affirm.

I.

Appellant was indicted in 2009 on two counts, for bank theft and aiding and abetting in violation of 18 U.S.C. §§ 2113(b) & 2, and for bank theft in violation of 18 U.S.C. § 2113(c). The government presented evidence that appellant and three others participated in a staged robbery of an armored truck around midday on May 22, 2008 near 19th and M or L Streets in northwest Washington, D.C. The robbers got away with approximately $210,000, with appellant receiving $40,000. Among the witnesses was Eric Wilson, who drove the armored truck for work and was a co-confederate in the robbery. Wilson testified about appellant’s involvement in planning and executing the robbery and about how Wilson’s mother Regina drove appellant and Anthony Holman (a/k/a Nino) to the scene. Kyndal Green, a former classmate of Holman’s who came to Washington, D.C. on May 21, 2008 to visit appellant and Siera Green, testified that appellant spent the evening prior to the robbery at a *77 hotel with her and he brought bags of money to the hotel the next day. The government introduced phone records to corroborate Kyndal Green’s testimony that she had received a phone call around noon from appellant after the robbery. Appellant did not own a cell phone at the time, but phone records indicated he used a phone belonging to one of Regina Wilson McCollum’s sons (Chaz McCollum) that she had with her when she was driving appellant and Holman and following the armored truck. Kyndal Green testified that she did not know the Wilsons, suggesting that only appellant would have had reason to call her from that phone line.

Upon retrial, the government called two additional witnesses. Wilson’s mother, Regina, testified she drove appellant and Holman around during the robbery itself. Siera Green, at whose apartment Kyndal Green received a phone call from appellant on the day of the robbery, testified that she thereafter drove Kyndal to the hotel room where they found duffle bags and about 20 packs of bills wrapped with papers on which was printed “$2,000” as well as more loose money, and that after appellant and Holman arrived, the four of them were together for the rest of the day.

During the first trial, the prosecution and defense agreed to two stipulations regarding the phone records. Stipulation 1 read: “The parties agree that the attachment is a true and accurate copy of phone records for phone number (240) 286-6931 obtained in the name of Danielle McCollum for the use of Chaz McCollum and that these records may be admitted as evidence in this trial.” Stipulation 2 read: “The parties agree that the attachment is a true and accurate copy of phone records for phone number (973) 409-1391 obtained in the name of Kyndal Green and that these records may be admitted as evidence in this trial.” After the testimony regarding the phone records, defense counsel uncovered an inconsistency in the records— they did not match (e.g., McCollum’s record shows an outbound call to Kyndal Green at 12:09 PM on May 22, but Green’s phone record does not display that incoming call). During closing arguments, both the prosecutor and defense counsel discussed the inconsistencies in the phone records. The jury deadlocked, and the district court declared a mistrial.

The retrial began ten days later, on September 17, 2010. Prior to opening statements to the jury, the prosecutor alerted the district court that a dispute may arise as to whether to admit the stipulations from the first trial. The district court stated that it was inclined to admit them as “prudent and efficient.” Tr. Sept. 17, 2010 at 105. Defense counsel requested they not be enforced, explaining that he had not realized when he entered the stipulations that phone conversations in those records were missing and he had not had Kyndal Green’s name until approximately three days before the first trial. Upon further consideration, the district court ruled that the stipulations would be enforced because nothing in the record indicated any type of injustice, much less manifest injustice, to appellant from being held to what he had stipulated.

A jury found appellant guilty on both counts, and the district court sentenced him to concurrent terms of 48 months’ imprisonment on each count, 36 months supervised release, and $100 assessments on each count, in addition to $40,000 in restitution. Appellant appeals.

II.

Appellant contends the district court erred in denying his request not to enforce the two stipulations at his retrial following the mistrial at the first trial. He maintains the stipulations were expressly *78 limited to use only during his first trial, and he suffered manifest injustice as a result of their use because the records were inaccurate and he was prevented from cross-examining phone company witnesses about the inconsistencies between the phone records. This court reviews the district court’s evidentiary ruling for abuse of discretion. See United States v. Whitmore, 359 F.3d 609, 616 (D.C.Cir.2004); see also Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C.Cir.1995).

Stipulations, like admissions in the pleadings, are generally binding on the parties and the court. Nat’l. Ass’n.

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Cite This Page — Counsel Stack

Bluebook (online)
695 F.3d 74, 402 U.S. App. D.C. 368, 2012 WL 4820813, 2012 U.S. App. LEXIS 20789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-abdul-kanu-cadc-2012.