United States v. Richard , 504 F.3d 1109 ( 2007 )

Opinion by Judge HAWKINS; Dissent by Judge O’SCANNLAIN.

HAWKINS, Circuit Judge:

Jacquan Richard (“Richard”) appeals his jury conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and — because we conclude the district court abused its discretion by permitting the jury to rehear only a portion of a key witness’s testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony — we vacate Richard’s conviction and remand.

I.

Richard was a backseat passenger in a vehicle lawfully stopped by Las Vegas Police Officer Mark Prager (“Officer Prager”) for displaying defective registration tags. Officer Prager requested identification from the vehicle’s four occupants and was able to accurately identify three: (1) the vehicle’s owner and driver, David Martin (“Martin”); (2) backseat passenger Michael Schneider (“Schneider”); and (3) front seat passenger Nikole Reeder (“Reeder”). Officer Prager was unable to immediately identify Richard because Richard did not have physical identification and the information he provided to Officer Prager could not be confirmed via a local, national, and Department of Motor Vehicles record check.

After issuing two vehicle citations to Martin, Officer Prager released him, along with Reeder and Schneider, permitting them to enter an adjacent casino, but detained Richard in order to ascertain his identity. While detained, Richard volunteered that Martin was a pimp who was pandering Reeder, prompting Officer Prager to request vice backup assistance.¹ Although not fully developed in the record, it appears that support officers subsequently retrieved Martin, Reeder, and Schneider from the casino for questioning. During this follow-up questioning, Schneider informed Detective Aaron Stanton (“Detective Stanton”) that there was a gun in Martin’s vehicle near the area where Richard had been seated. Detective Stanton later learned that the gun allegedly belonged to Richard, though it is unclear from the record how he obtained this information.

Richard, Martin, and Reeder were then arrested on charges unrelated to the original traffic stop,² Schneider was let go, and Martin’s vehicle was impounded. No gun was discovered during a routine impound inventory search. However, Schneider later provided the police with additional information concerning the gun, stating that it was located inside the rear seat of Martin’s vehicle. Schneider then accompanied Detective Stanton to the impound lot, where he pointed to the gun’s location, evidenced by a small bulge in the backseat. Based on this information, Detective Stanton obtained a search warrant and searched the vehicle the following day, locating the gun inside the rear passenger seat. Detective Stanton subsequently interviewed Richard at the Clark County Detention Center. During this interview, Richard repeatedly denied ownership or possession of the gun, but acknowledged that he may have previously touched or held it.³

At trial, Reeder was the only witness to testify to actually seeing the gun in Richard’s possession. At the outset of her testimony, Reeder described Officer Prager’s stop of Martin’s vehicle, acknowledged that Martin was her boyfriend at the time, and described her location and that of the other passengers in Martin’s vehicle. When asked, however, Reeder had significant, ongoing difficulty identifying Richard in the courtroom as a passenger in Martin’s vehicle. She failed to do so on four successive attempts over the course of several minutes, despite being prompted with a photograph of Richard she had previously identified as the backseat passenger who possessed the gun and specifically directed to look at the defense table. On the fifth attempt, after additional prompting and direction, Reeder finally acknowledged that Richard looked like the passenger in Martin’s vehicle, explaining that he had apparently gained weight and changed his hairstyle.

Reeder then testified that when Officer Prager activated his lights to stop Martin’s vehicle, Richard exclaimed that “he had to run, he had warrants, and a gun” and that she saw him pull a gun from his pants and place it under or around the backseat. On cross-examination, defense counsel questioned Reeder about the relatively brief period of time she observed the gun and her ability to describe the gun in detail. In addition, defense counsel inquired further into Reeder’s relationship with Martin, the relationships (or lack thereof) between the vehicle’s other occupants, and Schneider’s state of inebriation at the time of the stop.⁴

In the course of its deliberations, the jury made several requests,⁵ including to “have Nikole Reeder’s testimony and cross-examination.” In response, the judge explained that there was no then-available transcript of the testimony and advised the jury:

If you want to hear a readback of somebody’s testimony you have to let us know what part you want to hear, and then I’ll have the court reporter find that in her notes, and then we will bring you back into court and read that back to you.

The court also noted that there was an audiotape, but informed the jury that it would take some time to cue up. The jury was advised to “let [the court] know what portion” of testimony it wanted to hear and temporarily excused. Upon its return, the jury stated that it “would like to either hear back the tape or have read ... Ms. Reeder’s testimony from after the side bar until right after — or right toward the beginning of cross-examination.... [RJight around the time she was being asked to identify the defendant.”

Outside the jury’s presence, and after having learned for the first time of the jury’s intended focus on Reeder’s testimony in support of the government’s case, Richard objected to playing only a portion of Reeder’s testimony and moved to have her testimony replayed in its entirety. The judge denied the motion as untimely, expressing concern that reversing course at that point and requiring the jury to hear all of Reeder’s testimony would make him “look like an idiot.” He also rejected Richard’s argument that, because Reeder’s credibility was at issue, it was important for the jury to hear her entire testimony, and stated that he would also overrule the objection on the merits because it was not his “place” to instruct the jury that it was required to hear “the entire testimony of everybody, or of Ms. Reeder, or anyone else.”

After rehearing a portion of Reeder’s testimony in open court, the jury resumed its deliberations, returning one hour later with a guilty verdict. At sentencing, the district court concluded that Richard did not qualify as an “armed career criminal,” and sentenced Richard to 120 months imprisonment-the statutory maximum for violation of 18 U.S.C. § 922(g)(1). See id. §§ 924(a)(2), (e)(1). Richard now appeals from his judgment of conviction and the government appeals the failure to find Richard to be an armed career criminal for sentencing purposes.⁶

II.

We review a district court’s decision to replay (or reread) witness testimony during jury deliberations for an abuse of discretion.⁷ United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985), overruled in part on other grounds by United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997). “The [district court’s] determination to allow a rereading or rehearing of testimony must be based on [the] particular facts and circumstances of the case” and “[u]ndue emphasis of particular testimony should not be permitted.” Id. “Under the abuse of discretion standard, we will not reverse unless we have a definite and firm conviction that the district court committed a clear error in judgment.” United States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir.1994).

III.

Richard contends that the audiotape replay of selected portions of Reed-er’s testimony comprising the core of the government’s case unduly emphasized this testimony. We agree. Although the district court is generally afforded a great deal of discretion in determining whether testimony should be replayed (or reread) in a particular case, United States v. Sacco, 869 F.2d 499, 501 (9th Cir.1989), that discretion is not boundless. Although there is no panacea for the inherent risk of undue emphasis resulting from the playback (or rereading) of witness testimony during jury deliberations, certain precautions must generally be taken to avoid that risk. See id. at 501-03; Hernandez, 27 F.3d at 1408.

For example, we have consistently noted that it is preferable to have the testimony reheard (or reread) in open court with all parties present. See, e.g., Hernandez, 27 F.3d at 1408 (“[T]he preferred method of rehearing testimony is in open court, under the supervision of the court, with the defendant and attorneys present.”); Binder, 769 F.2d at 601 n. 1 (“If it is appropriate to let the jury hear the testimony of a witness a second time at all, the preferred procedure would require the preparation of a transcript ... and a rereading of that testimony to the jury in the courtroom with all parties present”).

In addition, the jury should ordinarily be provided with the witness’s entire testimony — i.e., direct and cross-examination, and should be admonished to weigh all the evidence and not focus on any portion of the trial. See Hernandez, 27 F.3d at 1408-09. Such precautions are especially important where the jury has exhibited an “obvious intent to emphasize a specific portion of [testimony].” See id. at 1409. Finally, in deciding whether to allow testimony to be replayed, we have noted that a district court should consider the “quantum of other evidence against the defendant” and “the importance of the [testimony to be replayed] in relation to other evidence.” Sacco, 869 F.2d at 502.

In Richard’s case, though the district court replayed Reeder’s abridged testimony in open court, it took none of the additional precautions we have previously identified to ensure that the jury did not unduly emphasize the testimony. To the contrary, despite the jury’s initial request to “have Nikole Reeder’s testimony and cross-examination,” the district court did not provide her entire testimony, but instead requested the jury to select the portion it wanted to hear. The portion replayed primarily consisted of the core of the government’s case against Richard— i.e., Reeder’s ultimate courtroom identification of Richard and testimony that he possessed the gun. Specifically, the replayed portion contained the following critical exchange:

Q: What, if anything, did the defendant say when [the police activated their lights and sirens]?

A: He said he had to run, he had warrants, and he had a gun.

Q: Did you at any point turn around to see if, in fact, he had a gun?

A: Yes, your Honor — or yeah.

Q: And what did you see when you turned around?

A: I seen the black part, the barrel of the gun.

A: It was a handgun.

A: He was pulling it from his pants part.

Q: So he had it in his hand?

A: Yes.

Q: Did you see the defendant do anything with that gun?

A: He was putting it — I don’t know whether it was under the seat, behind the seat, in the seat, but it was somewhere regarding the seat.

Notably, the excerpt omitted: (1) portions of Reeder’s testimony that Martin, the vehicle’s owner and driver, was her boyfriend at the time; (2) Reeder’s extraordinary difficulty in identifying the backseat passenger she claimed to have seen with the gun; and (3) Reeder’s entire cross-examination.⁸

The portion of Reeder’s testimony replayed was especially damaging to Richard as she was the only witness- — indeed, the only evidence — directly connecting Richard to the gun. Yet, despite the clearly one-sided nature of the portion to be replayed, the district court did not admonish the jury against unduly emphasizing the testimony or otherwise attempt to minimize the risk of undue emphasis. This failure constituted clear error, and we therefore conclude that the district court abused its discretion in permitting Richard’s jury to rehear that portion of Reed-er’s testimony. See Hernandez, 27 F.3d at 1408.

An examination of our prior cases confronting this issue confirms our conclusion:

In United States v. Sacco, we held that the district court did not abuse its discretion in permitting a video replay of the deposition testimony of a prosecution witness. 869 F.2d at 500, 503. Although the testimony at issue in Sacco was videotaped, like the audiotape in Richard’s case, it was played in open court with all parties present. Id. at 502. However, in contrast to Richard’s case, the Sacco court required that all of the witness’s testimony be replayed, id. at 501-02, whereas the district court here permitted the jury to rehear only a portion of Reeder’s direct examination, excluding both direct and cross-examination that arguably undermined Reeder’s credibility.

In Sacco, we further noted that “there was ample physical [and corroborative] evidence, aside from the videotape, of Sacco’s criminal conduct” and “[r]eplay of the videotape did not, therefore, effectively repeat the entirety of the government’s case.” Id. at 502. In contrast, Reeder was the only witness to directly testify to Richard’s possession of the gun — the only issue before the jury — and there was no physical evidence linking the gun to Richard. Thus, in all material respects, the portion of Reeder’s testimony replayed did “effectively repeat the entirety of the government’s case” against Richard. See id. Even worse, as noted above, the portion replayed contained only the core of the government’s case against Richard, entirely omitting large portions of Reed-er’s testimony on both direct and cross-examination that may have impeached her credibility, thereby increasing the risk that the jury would unduly emphasize the portion replayed.

In United States v. Lujan, we similarly found no abuse of discretion in the provision of a trial transcript to the jury during its deliberations. 936 F.2d 406 (9th Cir.1991). Like the reading of a provision of a witness’s entire testimony in Sacco, the Lujan jury was provided with the entire trial transcript, greatly reducing the likelihood that it would unduly emphasize any particular portion. Id. at 411. In addition, the district court allowed counsel to note any inaccuracies in the transcript beforehand and expressly admonished the jury “to weigh all the evidence and not to use the transcript to focus on any portion of the trial.” Id. at 412. Finally, the jury was instructed that the transcript was not authoritative and that the jurors’ memories should prevail in their deliberations. Id. The district court took no similar precautions here.

Partial read-backs have rather consistently met with disfavor. We held in United States v. Binder that the trial court abused its discretion in allowing the abridged replay of testimony during jury deliberations, concluding that the “[fjailure to replay the tape in its entirety may have placed an undue emphasis on the portion [replayed].” 769 F.2d at 601. As in

Richard’s case, there was no physical evidence linking Binder to the crime charged and the government’s case therefore rested primarily on the credibility and testimony of witnesses to the crime. Id. at 600-01. Accordingly, “[t]he replay [of key witness testimony] allowed the repetition of the government’s case against Binder and may [therefore] have taken on inappropriate significance in the jury’s deliberations.” ⁹ Id. The Binder trial court, like the district court here, took no additional precautions to ameliorate the risk of undue emphasis.¹⁰

Even full read-backs, absent appropriate precautions, can prove problematic. United States v. Hernandez found an abuse of discretion where the district court provided the jury with a transcript of key witness testimony describing the suspect without taking the necessary precautions to ensure that the jury did not unduly emphasize the testimony. 27 F.3d at 1409. We concluded that the district court’s “minimal protections” — utilizing a transcript as opposed to an audiotape and providing the jury with the witness’s entire testimony — “were insufficient to prevent undue emphasis of[the witness’s] testimony.” Id. at 1408. We noted that Hernandez’s jury had “clearly indicated ... that its final decision turned on [the witness’s] testimony, specifically his description of the suspect,” ¹¹ and, in light of this “obvious intent to emphasize a specific portion of the transcript, the district court permitted undue emphasis when it failed to admonish the jury to weigh all the evidence and to instruct that the transcript was not authoritative.” Id. at 1409.

The case against Richard similarly relied primarily on the identification of one witness as no physical evidence linked the gun to Richard. The failure, over Richard’s objection, to provide this key witness’s entire testimony is exacerbated by the jury’s initial request for all of Reeder’s testimony. Thus, not only did Richard’s jury indicate its “obvious intent” to rely on a particular portion of Reeder’s testimony, it did so at the request of the district court. That the jury selected the portion of testimony to be replayed does not lessen the risk it will unduly emphasize the selected testimony, but rather crystallizes it, triggering the district court’s obligation to take measures to ameliorate the risk.¹² In contrast to even the minimal precautions taken by the trial court in Hernandez, the district court here took no precautions whatsoever to ensure that Richard’s jury did not unduly emphasize the selected testimony.

IV.

Although the district court replayed Reeder’s testimony in open court, in light of the importance of that testimony to the government’s case given the relative dearth of evidence connecting the gun to Richard, this precaution alone was insufficient to ameliorate the risk that Richard’s jury would unduly emphasize the testimony. Accordingly, we conclude that the district court committed clear error, and thereby abused its discretion, when it permitted the jury to rehear a portion of Reeder’s testimony without taking any additional precautions — e.g., playing Reed-er’s entire testimony or admonishing the jury against unduly emphasizing the portion played. We therefore reverse and remand for a new trial or other appropriate disposition.

REVERSED AND REMANDED.¹³

1 .The government notes that the only "evidence” that Richard informed the police of Martin and Reeder's alleged activities is contained in a police report, which was not admitted as evidence at trial, and accordingly should not be considered on appeal. However, Richard appeals the district court's failure to hold an evidentiary hearing on his motion to suppress evidence, thus denying him the opportunity to fully develop the sequence of events and presumably introduce this report. Furthermore, Richard's accusations as contained in the report were acknowledged by the government in its response to Richard's motion, and clearly considered by the magistrate judge in reaching her decision, and therefore may properly be considered on appeal. In any event, in light of our narrow holding, we need not ascertain the precise sequence of events.

2 . Martin and Reeder were apparently arrested for charges relating to pandering and prostitution and Richard, after his positive identification and a records check, for "[(Intimidating Reeder” and a probation violation.

3 . Because we reverse Richard’s conviction on other grounds, we do not address Richard's contention on appeal that statements made during his interview with Detective Stanton were the unconstitutional result of a deliberate two-step interrogation. Missouri v. Seibert, 542 U.S. 600, 608-17, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

We likewise decline to address the merits of Richard’s Fourth Amendment challenge to the evidence seized from Martin’s vehicle and the statements Richard made during his roadside detention. See United States v. Pulliam, 405 F.3d 782 (9th Cir.2005). If a new trial is held, Richard is free to renew his challenge to this evidence and the district court will have the opportunity to more fully examine the applicable law, relevant facts, and precise sequence of events in light of intervening circuit and Supreme Court authority. See Brendlin v. California, - U.S. -, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); United States v. Diaz-Castaneda, 494 F.3d 1146 (9th Cir.2007); see also United States v. Henderson, 463 F.3d 27 (1st Cir.2006).

4 . In addition to Reeder's testimony, the jury heard testimony from Officer Prager, Detective Stanton, and Randall McPhail, a Las Vegas Metropolitan Police Department Senior Crime Scene Analyst. The jury also heard Detective Stanton’s taped interview with Richard and viewed various photographs of Martin’s vehicle and the gun.

5 . For example, the jury requested clarification of: (1) when and from whom Detective Stanton learned about the gun; (2) the sequence of events relating to the initial release of Martin, Reeder, and Schneider, and the subsequent arrests; (3) how Richard could know a gun could be placed inside the backseat of Martin’s vehicle; and (4) whether Schneider was in fact drunk.

6 . Because we reverse Richard’s conviction, we need not — and do not — address the government's related appeal (No. 06-10377) of Richard's sentence.

7 . The government conceded at oral argument that, contrary to the district court's conclusion, Richard's objection to the abridged playback of Reeder's testimony was timely. Therefore, the district court's decision is not subject to plain error review.

8 . Although the portion replayed did include Reeder's two additional unsuccessful attempts to identify Richard in the courtroom, as well as limited testimony about Reeder's relationship with Martin, the excerpt did not present a complete picture, in light of its critical in-elusion of Reeder's ultimate identification of Richard and version of events supporting the government's theory, and omission of direct and cross-examination with the potential to impeach her credibility.

9 .Although the Binder court noted that the replay of videotaped testimony carries a particular. risk of prejudice, id., we conclude that any distinction between audiotape and videotape testimony does not materially alter a court's evaluation of whether to replay such testimony and the necessary precautions to lessen the inherent risk of undue emphasis from such a replay. Of greater consequence, we think, is "the quantum of other evidence against the defendant,” dre relative importance of the testimony in question, and the manner in which the testimony is provided to the jury. Sacco, 869 F.2d at 502.

10 . Much to the contrary, the trial court in Binder did not even require the tape to be played in open court, but instead permitted the jury to review it unsupervised in the jury room. Id. at 60 In. 1.

11 . In notes to the court, the Hernandez jury "relayed that its final decision was based on [the witness's] testimony” and stated that it "specifically wanted to hear [the witness's] testimony regarding his encounter with the suspect ... and his description of the suspect.” Id. at 1405.

12 . Even if a jury’s selection of particular testimony could obviate the district court's obligation to prevent undue emphasis on particular testimony, Richard’s jury was not even provided with all of the testimony it requested. Although the jury initially requested “Ms. Reeder’s testimony from after the side bar until right after — or right toward the beginning of cross-examination,” it further specified that it wanted her testimony "right around the time she was being asked to identify the defendant.” However, the portion ultimately replayed for the jury omitted several minutes of identification testimony, including her first two failed attempts to identify Richard in the courtroom.

13 . As noted above, we need not — and do not — express any opinion regarding Richard’s Fourth and Fifth Amendment challenges or the government's sentencing appeal.