Federal Evidence Review

In felon in possession of a firearm trial, trial court committed plain error by reading unredacted indictment which disclosed that the defendant had previously been convicted of armed robbery as defendant had offered to stipulate to his felony status, in United States v. Coleman, 552 F.3d 853 (D.C. Cir. Jan 16, 2009) (No. 05-3182)

In some districts, the trial court reads the charges from the indictment to the jury, either during voir dire or after the jury has been selected. Normally, an instruction is given that the indictment is not evidence. See, e.g., Ninth Circuit Model Criminal Jury Instructions § 3.2 (Charge Against Defendant Not Evidence — Presumption Of Innocence — Burden Of Proof) (“The indictment is not evidence. The defendant has pleaded not guilty to the charge. The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.”). A recent case from the D.C. Circuit demonstrates the perils of reading an indictment with unredacted, prejudicial allegations. While no objection was made to the reading of the indictment at trial, plain error resulted.

The case involved the discovery of a firearm while officers responded to a citizen complaint about narcotics activity. In entering an apartment, an officer observed that defendant Coleman “grabbed, and, almost in a swatting motion, knocked . . . a silver-colored handgun revolver with black grips from his waistband,” which made a “thud” sound. The defendant was arrested and charged as a felon in possession of a firearm. At trial, during jury selection, the trial court read the unredacted indictment, as follows:

“On or about July 10, 2004, within the District of Columbia, Chauncey L. Coleman, having been convicted of crimes punishable by imprisonment for a term exceeding one year in Prince George’s County, Maryland . . ., a crime of violence, that is, robbery with a deadly weapon and in D.C. Superior Court . . . a crime of violence, that is, escape, did unlawfully and knowingly receive and possess a firearm, that is, a Smith & Wesson .357 caliber revolver, and did unlawfully and knowingly receive and possess ammunition, that is, .357-caliber ammunition, which had been . . . transported in . . . interstate commerce.”

Coleman, 552 F.3d at 857. The defense did not object to the reading of the unredacted indictment. However, the defense stipulated that the defendant had “previously been convicted” of a felony. In his defense, the defendant denied that the gun found at the time of his arrest was his. At the close of the evidence, the court delivered final instructions and at the prosecutor’s request, the trial court sent into the jury room a redacted version of the defendant’s indictment. After the defendant was convicted, he appealed contending that he was denied his Sixth Amendment Right to a Fair Trial when the trial court read the unredacted indictment to the jury during its voir dire

The D.C. Circuit reviewed the issue for plain error since no objection had been raised at trial. The circuit The circuit reversed and remanded for a new trial after concluding the error constituted plain error. The circuit noted that under its prior precedents: “it is reversible error for the district court to read to the jury the unredacted indictment referring to the prior felony offense where the defense has offered to stipulate felon status and either a defense is compromised or the government's evidence of guilt is not ‘strong.’” Coleman, 552 F.3d at 859 (citing United States v. Jones, 67 F.3d 320, 324-45 (D.C. Cir. 1995) (district court had abused its discretion by denying the defense motion to exclude evidence of the nature of the prior felony conviction and that it had plainly erred by informing the jury of the nature of the felony when reading the indictment and giving final jury instructions); United States v. Myles, 96 F.3d 491, 496-97 (D.C. Cir. 1996) (Defendant’s prior-conviction information had been presented to the jury and so the trial court concluded that, in the absence of any defense objection, there was no plain error since the defense had neither offered to stipulate nor requested that the prosecution refrain from revealing the nature of the prior conviction and any error could not be prejudicial in light of the strong evidence’ of the charged drug distribution crime)).

As the circuit explained, the case was not a strong one. The defendant denied possessing the firearm, and the case largely turned on the credibility of the officers. Further, the trial court’s reference to the defendant’s prior conviction for armed robbery served to “bolster” the arresting officer’s testimony and discredit the defendant’s. Coleman, 552 F.3d at 860.

The result may have turned out differently if the evidence had been stronger and the error may have been deemed harmless. The case serves as a warning to reading to the jury an indictment that includes potentially prejudicial allegations, particularly where the defense offered to stipulate on the issue.