United States v. Hugh

236 F. App'x 796
CourtCourt of Appeals for the Third Circuit
DecidedJune 14, 2007
Docket05-4260
StatusUnpublished
Cited by2 cases

This text of 236 F. App'x 796 (United States v. Hugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Hugh, 236 F. App'x 796 (3d Cir. 2007).

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellant Nolan Hugh was convicted by a jury of conspiracy to interfere with interstate commerce by robbery, interference with interstate commerce by robbery, and using a gun during a crime of violence. He was sentenced to 180 months of imprisonment, and this appeal followed. We will affirm.

The teller at the check cashing store that was robbed by two men testified for the government. On direct, she gave a detailed account of the robbery itself and of her subsequent identification of Hugh in a police photo spread as the “second robber” — the robber who had stopped by the store two hours before he reappeared during the robbery. She said, among other things, that Hugh had asked for change for a $5 bill when he first came to the store. On cross-examination, defense counsel showed her a two-page police “Investigation Interview” she had given to the police on the day of the robbery and asked if she did not there say she could not remember why Hugh had first come to the store. The witness acknowledged the conflict. The two-page interview, which in response to questions from an investigating officer provided an account of the entire robbery episode, had been marked Defendant’s Exhibit D-l-A for identification (hereafter “D-l-A”).1 Its contents had not been referred to earlier in the trial. Although the investigating officer testified in response to questions from defense counsel that he prepared a report of the interview, the contents of that report were not subsequently referred to in the testimony. D-l-A was never offered into evidence.

During his closing argument, defense counsel, in the course of arguing that the photo spread had been unduly suggestive, informed the jury that the teller in her interview on the day of the robbery had described the second robber as having a “Muslim type beard.”

Following the Court’s charge to the jury, defense counsel asked that D-l-A and another document be sent out to the jury room with the jury. The government pointed out that they had not been moved into evidence and that, if they had been, the government would have objected to their admission as hearsay. The Court declined to send the exhibits out with the jury, stating: “[T]hey were not moved into evidence. So they will not go out.” App. at 528.

After the jury retired and the Court returned from a recess, it further ex[798]*798plained to defense counsel why D-l-A was hearsay:

The other document is D-l-A, which is called an Investigation Interview Record dated May 24, '03, which is a series of questions put to Alyia Hason, and her answers, which were typed up by the detective and signed by Ms. Hason. That, of course, was a statement made by a witness, other than while testifying here at the trial or hearing. This does not come within the exception set forth in rule 801[ (d) ], which defines statements which are not hearsay. And while under certain circumstances prior statements of witnesses may be admitted into the record, and are not deemed to be hearsay, this document does not come within the definitions set forth in 801[ (d)(1)].2
First of all, it doesn’t come within rule 801[ (d)(1)(A) ], since it is not given under oath. It does not come within the definition of 801[ (d)(1)(B) ] because it’s not being offered as a statement consistent with the declarant’s testimony, and it is not offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
And again, neither of these documents comes within any exception of the hearsay rule. So therefore, again, while this document was used for impeachment purposes during the examination of Ms. Hason, it’s not substantive evidence and will not be admitted.

App. at 530-31.

After reaffirming its ruling that the statement was not admissible as “substantive evidence,” the Court added that “even if it’s somehow admissible at this point, I think by sending it out to the jury would give undue weight to that statement.” App. at 532.

At some point during the Court’s discussion of this issue with counsel, the jury sent a note to the Court requesting that it be provided with a copy of D-l-A and a police investigation report of the robbery. The Court responded:

Members of the jury, under our rules of evidence, I will not be able to send those statements out with you, and you’re just going to have to remember the testimony that was given during the trial, and of course the demonstrative exhibits that you have. Thank you.

App. at 532-33.

Before us, Hugh insists that the District Court abused its discretion by not reopening the evidence, admitting D-l-A, and sending it out to the jury. We find no abuse.

First, as the foregoing account indicates, the defense failed to offer D-l-A into evidence and did not provide an excuse for not doing so. As a result, with one minor exception regarding the teller’s memory of the pretext for the second robber’s initial [799]*799appearance, the significance of the contents of that two page document was something that the government had no occasion to address through testimony, exhibits, or comments of counsel in closing. In a letter to the court, the defense calls our attention to several cases in which courts of appeals have affirmed the decision of a district court to reopen the record in a case after both parties had rested. See United States v. Boone, 437 F.3d 829, 837 (8th Cir.2006); Duong v. McGrath, 128 Fed.Appx. 32, 34 (9th Cir.2005) (non-preeedential); United States v. Ramirez-Gonzales, 116 Fed.Appx. 369, 372 (3d Cir.2004) (non-precedential); United States v. Mojica-Baez, 229 F.3d 292, 300 (1st Cir.2000); United States v. Wilcox, 450 F.2d 1131, 1144 (5th Cir.1971); United States v. Schartner, 426 F.2d 470, 475 (3d Cir.1970); United States v. Duran, 411 F.2d 275, 277 (5th Cir.1969) In none of those cases, however, did the court of appeals grant what Hugh asks from this court — a decision reversing the district court’s decision not to reopen a case. There is good reason for this. Our precedents and those of other courts of appeals — including those that Hugh cites to us — have consistently held that a district court enjoys broad discretion regarding whether to reopen the record. Boone, 437 F.3d at 836; United States v. Coward, 296 F.3d 176, 180 (3d Cir.2002) (drawing an analogy between reopening a trial record after the parties have rested and reopening the record of a suppression hearing on remand); United States v. Blankenship, 775 F.2d 735, 741 (6th Cir.1985); Wilcox, 450 F.2d at 1143; Duran, 411 F.2d at 277. We have also cautioned “that courts should be extremely reluctant to grant reopenings.” Coward, 296 F.3d at 180 (quoting United States v. Kithcart, 218 F.3d 213, 219 (3d Cir.2000)); Wilcox, 450 F.2d at 1143-44.

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236 F. App'x 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hugh-ca3-2007.