No. 94-3087




ANDRE H. xxxxxxx,Defendant-Appellant.








The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal from the final judgment of the district court (entered June 30, 1994) having been treated as filed on June 30, 1994, this Court has jurisdiction over this appeal under 28 U.S.C. § 1291.


1. Whether the trial judge erred in finding that the officers who searched 237 15th Street, S.E., waited a sufficient period of time before concluding that they had been constructively denied admittance and forcibly breaking into the house, where the entering officer never testified that he waited any period at all before starting to break in and the trial court erroneously relied on his testimony as to the time it took to gain actual entry.

2. Whether appellant was unfairly prejudiced by the government's belated evidence that the handgun found in his room was operable, where the defense had already relied in its opening statement on the government's original claim that the gun was inoperable.


Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.



A.Nature of the Case, Course of Proceedings, and

 Disposition in the Court Below

On November 16, 1993, a federal grand jury sitting in the District of Columbia returned a four-count indictment charging Mr. Andre H. xxxxxxx with possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (Count One), with possession with intent to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a) (Count Two), with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Three), and with possession of an

unregistered firearm in violation of 6 D.C. Code § 2311(a) (Count Four). A. 7-9. Footnote

On January 11, 1994, the district court (Hon. Joyce Hens Green) denied appellant's motion to sever Count Three of the indictment, and ordered that the court would hold a bench trial on the prior felony element of the felon-in-possession count so that the jury would not learn of it (A. 22). On February 1, 1994, the district court held an evidentiary hearing on appellant's motion to suppress all evidence seized during execution of a search warrant at 237 15th Street, S.E., on the ground that the police had violated the "knock and announce" statute, 18 U.S.C. § 3109, and to suppress all statements made by Mr. xxxxxxx in response to questioning during execution of that warrant on the ground that appellant was not given Miranda warnings prior to the interrogation. The next day, the court heard argument on the motions and orally granted the motion to suppress appellant's statements but denied the motion to suppress based on the "knock and announce" statute (M. Tr. 128-131).

  Immediately thereafter, a jury trial commenced before Judge Green on a retyped indictment, from which reference to the amount of cocaine base charged in Counts One and Two and the prior felony element of Count Three had been eliminated (A. 23-24). On February 10, 1994, the jury returned a verdict finding appellant not guilty on Counts One and Two (the drug counts) and guilty on Counts Three (minus the prior felony element) and Four (the gun counts). Upon appellant's stipulation to his prior felony conviction, the court found appellant guilty on Count Three (Tr. 493-494). On June 16, 1994, Mr. xxxxxxx was sentenced to 120 months imprisonment, three years of supervised release, and a $50 special assessment on Count Three and a concurrent sentence of four to twelve months imprisonment on Count Four (A. 25-28). Mr. xxxxxxx filed a timely notice of appeal (A. 29).

B. Statement of Facts

The prosecution of Mr. xxxxxxx was based entirely on items found during the search of 237 15th Street, S.E., a three story rowhouse owned by Mr. xxxxxxx's grandmother, Mamie Carter (M. Tr. 80, 84, 99). Specifically, the evidence used against Mr. xxxxxxx was found inside the padlocked front upstairs bedroom in which Mr. xxxxxxx stored the merchandise he sold daily at his licensed vending stand a few doors down the street. Footnote The drug counts, of which Mr. xxxxxxx was acquitted, were based on cocaine base found hidden behind the molding inside the closet door and ziplock bags found inside another bag under an empty fish tank. Footnote The gun counts, on which Mr. xxxxxxx was convicted, were based on a .25 caliber semi-automatic Raven pistol found inside the pocket of a suit jacket hanging with Mr. xxxxxxx's vending merchandise on a clothes rack that wrapped around the room.

1. The Suppression Hearing.

Two witnesses testified at the suppression hearing with respect to the "knock and announce" issue. The government called Investigator Darryl Richmond, a member of the search warrant execution team. The defense called Mr. Clifton Whitehurst, a 60-year old gentleman (M. Tr. 102), unrelated to the defendant (M. Tr. 98), who had lived in the rear upstairs bedroom at 237 15th Street for thirteen years (M. Tr. 98-99). Footnote

Investigator Richmond testified that he was part of the Fifth District Vice Unit team that executed the search warrant at 237 15th Street at approximately 6:50 p.m. on October 22, 1993 (M. Tr. 24-25). Investigator Richmond reported with the group sent to the

rear of the house, where entry was to be made, while other officers were stationed at the front door (M. Tr. 25, 41-42). Footnote

Investigator Richmond testified that the back steps to the house led to a metal framed screen door, leading immediately to another door, half wood and half glass, that opened into a porch (M. Tr. 25, 37-38, 41). Through the porch, approximately ten to fifteen feet from the two outside doors, was a third door, also half wood and half glass, leading from the porch into the kitchen (M. Tr. 25-26).

Investigator Richmond testified that he knocked very loudly with his metal flashlight on the metal part of the screen door and yelled as loud as he could: "Police. Search Warrant." (M. Tr. 26). From outside the screen door, through the glass in the second and third doors, Investigator Richmond could see Mr. Whitehurst standing at the stove in the kitchen (M. Tr. 26, 41). After Investigator Richmond knocked and announced his intentions, Mr. Whitehurst looked in the direction of the door Footnote and then "turned away and started walking away from the stove" in a direction away from the back door (M. Tr. 27, 42). "At that point" Investigator Richmond began cutting the screen on the screen door in order to unhook the latch (M. Tr. 27). After opening the screen door, Investigator Richmond tried to open the second door by turning the doorknob but it was locked (id.). He then signaled to the members of the entry team holding the battering ram to hit that door (id.). After they broke through that door, Investigator Richmond instructed the ram team to keep going and hit the third door as well (M. Tr. 28). Footnote Upon entering the kitchen, Investigator Richmond found Mr. Whitehurst standing beside the refrigerator (M. Tr. 42).

The prosecutor initially attempted to focus the issue on the time that elapsed between the knock and announce and Investigator Richmond's entry into the kitchen. When the prosecutor first asked Investigator Richmond how long it took him to gain entry to the kitchen from the time he knocked and announced -- "taking into account the cutting of the screen, getting that door open, hitting the door to the patio and hitting the next door" -- Investigator Richmond testified that it took "approximately 20, 25 seconds" (M. Tr. 28-29). On redirect, the officer accepted the prosecutor's restatement of his testimony that it took "25 seconds" between the knock and announce and the point at which the final door was forced (M. Tr. 54).

On cross-examination, defense counsel brought out that the porch was in fact part of the dwelling, through photographs of the back of the house and porch area (M. Tr. 37-39) and testimony from Investigator Richmond that the porch was roofed and enclosed (M. Tr. 37, 41). Footnote In response, the prosecutor on redirect broke down the time it took to gain entry into the kitchen into the time that elapsed between the knock and announce and the entry into the porch and the time that elapsed between that point and the entry into the kitchen. Investigator Richmond testified that the former took fifteen seconds, explaining that it took him several seconds to get the screen door cut, and that the latter took two to three seconds (M. Tr. 54-55) (emphasis added):

QHow much time took place before -- between when you knocked and announced and when the first two doors were hit, the doors onto the porch? You knocked and announced and then cut the screen door and forced the doors open. How long did that take?


AI guess when I knocked and announced and I started trying to get into the screen doors, about 15 seconds. It took me a few seconds to get that screen door cut.


QAnd then how long was it from the time you forced the -- or you or someone else forced the screen and the first door open that led to the porch and the time when the door to 237, the rear door was forced open?


AThat was just a couple of seconds. Not many seconds.


THE COURT: I'm sorry. From the time that you forced the screen door and the first wooden door open, how long was it till you got to the second door?

THE WITNESS: The next door?


THE WITNESS: Maybe two or three seconds.


THE COURT: Two to three seconds to the next door. And the door that we've referred to as the next door, thesecond wooden door, was the door that actually led into the premises; is that right?

THE WITNESS: That's correct.

Mr. Whitehurst testified that when the police broke into the house he was standing in front of the stove warming up some food and that the first thing he heard was the sound of breaking glass (M. Tr. 93, 94, 101). Footnote He never heard anyone bang on the door (M. Tr. 102) or yell "Police, search warrant" or anything similar to that (M. Tr. 94). He did not walk away when he heard someone breaking in because "it frightened me. I was dumbfounded. I couldn't move at the moment till I looked out and see the face, you know." M. Tr. 98. Mr. Whitehurst testified that from where he was standing by the stove, about twenty feet from the screen door (M. Tr. 94-96), he was sure he could have heard the police if they had knocked on the rear door (M. Tr. 98, 102-103). He testified that his hearing, although better in the past, was good (M. Tr. 102).

In rebuttal, the government recalled Investigator Richmond, who testified that he had served Mr. Whitehurst with a trial subpoena a few days earlier and that, before Mr. Whitehurst had responded to his question concerning whether Mr. Whitehurst would be able to make it to court, he had had to repeat the question several times (M. Tr. 104-106). At that point, Mr. Whitehurst was brought back into the courtroom at defense counsel's request for a demonstration of his ability to hear Investigator Richmond from various locations in the courtroom, with mixed results (M. Tr. 108-110).

In arguing in opposition to the knock and announce motion, the prosecutor took the position that Mr. Whitehurst simply did not hear the knock (M. Tr. 120): "I do not think and I will not argue that Mr. Whitehurst should be not credited. I just think that his hearing is not as good as he seems to think that it is. And he demonstrated that." The prosecutor argued that "the first break occurred after approximately ten seconds or so and the second break was 25 seconds" and that, given that the warrant was executed at a time of day when the police would expect the occupants to be awake ("and, indeed, Mr. Whitehurst was awake and was in the kitchen"), "ten or twenty seconds was enough to wait before entering the house" (M. Tr. 120-121).

The court denied the motion to suppress, crediting Investigator Richmond's testimony that he did loudly knock and announce and ruling that the government had met its burden under United States v. Kemp, 12 F.3d 1140 (D.C. Cir. 1994), of showing that Investigator Richmond waited "at least ten seconds," id. at 1142, before concluding that he had been constructively denied admittance (M. Tr. 128-129). In so finding, the court stated the testimony of Investigator Richmond as follows (id. (emphasis added)):

We did hear the testimony from Officer Richmond, who testified that he did wait 15 seconds after he knocked on the rear metal screen door and announced his purpose before he started to break into that screen door, while the overall matter from beginning to end, from the time he first knocked and yelled loudly and knocked loudly, using his metal flashlight, metal onto metal of the screen door, the entire time that elapsed was between 20 to 25 seconds, according to one of his testimonies, and his other testimony, 25 seconds.

2. The Operability Of The Handgun.

Investigator Richmond testified at the preliminary hearing that the handgun found in the suit jacket pocket was inoperable and that members of the crime lab, firearms examination unit, had told him that it appeared that the weapon had been tampered with (P.H. Tr. 6-7):

The grip had been taken off and it had been tampered with. There was some item on there that was over the top of another piece of metal and the firearms examination officer said that it should have been under the metal, if it had been under the metal, it would have been operable.

On Wednesday, February 2, 1994, along with its arguments on the suppression motion, the government asked the court to instruct defense counsel not to mention the inoperability of the gun in his opening statement or through questioning of witnesses, arguing that under United States v. Ruiz, 986 F.2d 905, 910 (5th Cir.), cert. denied, 114 S. Ct. 145 (1993), all that is required under the felon-in-possession statute, 18 U.S.C. § 922(g), is that the gun was designed to shoot a projectile at the time it was manufactured (M. Tr. 122): "Operability is not an issue."

The court agreed with the government that § 922(g) does extend to inoperable guns (M. Tr. 126) and cautioned defense counsel not to say anything to the jury inconsistent with the law on that point (M. Tr. 138). Defense counsel assured the court that he did not intend to argue inoperability as a theory of acquittal, but suggested that the inoperability might nevertheless have relevance, such as to intent to distribute (M. Tr. 138). The court explained that it was not precluding defense counsel from raising the issue at all, just from suggesting to the jury that it must find the gun operable in order to convict (M. Tr. 139).

In his opening that afternoon, the prosecutor told the jury that an employee of the Bureau of Alcohol, Tobacco and Firearms (ATF) would testify that "when this firearm was manufactured it was designed to shoot a projectile, that is, a bullet" (Tr. 22). Defense counsel, in the course of contrasting what was found in the front room with what was found in the bedroom occupied by Greg Corbin down the hall, referenced the inoperability of the gun found in the front room (Tr. 29) (emphasis added): "You'll hear and you'll know about another room where what is found is not a .25

caliber gun with no clip and no ammunition that doesn't even work, but a 9 millimeter Taurus with live bullets that works . . . ."

At the end of the day, before putting on evidence as to the gun found in the jacket, the prosecutor again asked the court to preclude defense counsel from bringing out the fact that the gun was inoperable (Tr. 90): "I just don't think it adds anything. It's not material." The court agreed that the fact of inoperability would not add anything in light of the instructions it planned to give (id.). Defense counsel then suggested that operability is required under 6 D.C. Code § 2311(a) -- the unregistered firearm count. The prosecutor responded that "if it is, I'll get rid of [Count Four]. I won't be able to prove operability." (Tr. 90-91). The parties agreed to submit caselaw to the court on that issue during the upcoming four-day recess (Tr. 104).

On Monday, following the recess, the legal issue was put to rest when defense counsel informed the court that his review of the law indicated that the prosecutor was correct that the unregistered firearm count did not require proof of operability (Tr. 111). The court agreed, relying on two D.C. Court of Appeals cases (Tr. 112). The prosecutor then informed the court that nevertheless he now wanted to introduce evidence that the gun was in fact operable (Tr. 113) (emphasis added):


I think that there is still an issue remains with respect to this case. I know that operability is not at issue in this case. However, it was mentioned in Mr. Rochon's opening statement. I think my position was clear -- the government's position, rather, was clear prior to Mr.

Rochon's opening statement. I think that he has reasons why he mentioned operability.


I would like to bring out through my next witness, who is the ATF firearms examiner, that the gun was operable. I don't think Mr. Rochon would like me to get into that on the grounds that the gun's operability was not disclosed pretrial. However, what I suggest is that I simply bring it out through this witness and then I would just not mention it in my closing argument, and I think the court's instruction would be clear as to both Counts 3 and 4. So I wouldn't highlight it that it was an operable gun, but I would like to bring it out through Mr. Turner from ATF, kind of just to neutralize what Mr. Rochon said in his opening statement.

The parties explained to the court that the prosecutor had had the gun retested on the first day of the recess, the prior Thursday, and had informed defense counsel on Thursday that the gun was operable (Tr. 114, 118, 119-120). Defense counsel strenuously objected to admission of the gun's operability (Tr. 114-119). First, counsel argued that the court had just resolved that operability was irrelevant to the weapons counts as charged (Tr. 115, 116). Second, defense counsel argued that admission of evidence of operability would necessitate a mistrial because the defense had already relied on the government's representations that the gun was inoperable in its opening and would be severely prejudiced by admission of contrary evidence that should have been provided before trial under Federal Rule of Criminal Procedure 16 (Tr. 114-119). The court ruled that because the jury had already been told in opening that the gun did not work, the government would be permitted to bring out without elaboration that the gun was in fact operable in order to "make sure the jury is not confused" (Tr. 116-118). The court agreed to allow the results of the pretrial testing to be brought out as well, in an attempt to relieve the prejudice to the defense from the government's switch in position (Tr. 118-119).

The government then called Richard Turner, an ATF firearms enforcement specialist, who testified that he had examined the weapon on the prior Thursday, February 3, 1994 (Tr. 127). Mr. Turner testified that at the time the weapon was manufactured, it was designed to shoot a projectile, describing in some detail how a semi-automatic firearm automatically feeds a new round each time the weapon is fired (Tr. 128). Although he had been told before he examined the gun that it had been found not to work when it had been examined by the Metropolitan Police Department (Tr. 129), Mr. Turner found the firearm to be functional. He testified that the gun had a magazine safety, such that it will not operate unless the magazine is in place, and that the firearm functioned as designed once he inserted a magazine from the ATF reference collection into the well of the gun (Tr. 130-131). Mr. Turner did not mention any tampering with the grip or any item that was over, rather than under, another piece of metal, as Investigator Richmond had described at the preliminary hearing.

In closing, the prosecutor -- despite his earlier promise not to mention the gun's operability in closing (Tr. 113) -- exploited the operability evidence by reminding the jury of Mr. Turner's testimony "that [the gun] was designed to fire a bullet and that it does fire a bullet" (Tr. 429) (emphasis added). In response, defense counsel was forced to address the issue, reminding the jury that the gun was initially said to be inoperable but that the ATF examiner had figured out that by putting a clip in it, it would work. He pointed out that in the condition the gun was found -- with no clip and no ammunition anywhere in the room -- it was not actually capable of firing, conceding at the same time that that did not mean it was not a firearm under the law (Tr. 436). In rebuttal, the prosecutor again invoked the operability testimony he had promised to let rest (Tr. 448) (emphasis added):

Now, ladies and gentlemen, it's true, there's no magazine in this gun. It works. You put bullets in this gun, it will work.


The "knock and announce" statute permits an officer to break open a door to execute a search warrant only if, after knocking and announcing his purpose, "he is refused admittance." 18 U.S.C. § 3109. Although such refusal need not be explicit, this Court "require[s] that the officer wait at least ten seconds (absent some intervening exigency) before inferring that he is being refused admission and proceeding forcibly to break in." United States v. Kemp, 12 F.3d 1140, 1142 (D.C. Cir. 1994). Here, the trial court clearly erred in finding this requirement satisfied.

The trial court stated that Investigator Richmond testified that he waited fifteen seconds before starting to cut the screen door, when in fact he testified that fifteen seconds elapsed before he gained actual entry to the porch (M. Tr. 54, 128). The difference in a case like this, in which the breaking-in process itself was time-consuming, is critical. Here, if Investigator Richmond actually succeeded in breaking down the first two doors in fifteen seconds, he must have started almost immediately. Indeed, Investigator Richmond never claimed that he waited any time at all before starting to cut the screen but rather testified that he started breaking in as soon as he saw Mr. Whitehurst look up and turn away from the stove. The trial court's finding that Investigator Richmond complied with § 3109 by waiting "at least ten seconds," as required by Kemp, before concluding that he had been denied admittance, was clearly erroneous.

In addition, appellant was deprived of a fair trial when the court allowed the government to make and to take advantage of a last-minute change in its position on the operability of the gun found in appellant's room. The defense had already relied in its opening on the government's original representations that the gun would not work. The switch by the government unfairly prejudiced Mr. xxxxxxx's ability to present his defense by making it appear to the jurors that his attorney had tried to hide the true facts from them. The prosecutor's exploitation of the belated evidence in closing, after having represented to the court that he would not mention the evidence in closing if permitted to bring it out, further added to the prejudice Mr. xxxxxxx suffered as a result of the government's surprise reversal of position.




A.Standard Of Review.

In reviewing a district court's determination that police officers did not violate "knock and announce" requirements in executing a search warrant, a Court of Appeals reviews the district court's findings of historical fact for clear error and its application of legal principles de novo. United States v. Ramos, 923 F.2d 1346, 1355 (9th Cir. 1991). Whether a constructive refusal of admittance has occurred, under the circumstances confronting the officers, is a "legal conclusion." United States v. Bonner, 874 F.2d 822, 829 (D.C. Cir. 1989).

B.The "Knock and Announce" Statute Permits Officers To Break Into A Home Only If They Are Refused Admittance.

The "knock and announce" statute, 18 U.S.C. § 3109, provides that an "officer may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance. . . ." Footnote

The Supreme Court has long recognized the importance of strict enforcement of this statute:

The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence for the individual's right of privacy in his house.

Sabbath v. United States, 391 U.S. 585, 589 (1968) (quoting Miller v. United States, 357 U.S. 301, 313 (1958)). "The liberty interests which [the knock and announce statute] are designed to protect, and which require a generous construction of the statute, are significant even when an officer simply turns a handle and walks through an unlocked door. They are at their zenith when the ram team does its work." Griffin v. United States, 618 A.2d 114, 119-120 (D.C. App. 1992) (citations omitted). Footnote

  By its terms, § 3109 permits an officer to break open a door only "if . . . he is refused admittance." This Court has held that "'the phrase "refused admittance" is not restricted to an affirmative refusal, but encompasses circumstances that constitute constructive or reasonably inferred refusal.'" United States v. Spriggs, 996 F.2d 320, 322 (D.C. Cir.), cert. denied, 114 S. Ct. 359 (1993), quoting United States v. Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989), quoting United States v. Masiello, 317 F.2d 121, 122 (D.C. Cir. 1963). An officer may infer refusal from the occupants' failure to open the door. However, "[this Court] require[s] that the officer wait at least ten seconds (absent some intervening exigency) before inferring that he is being refused admission and proceeding forcibly to break in." United States v. Kemp, 12 F.3d 1140, 1142 (D.C. Cir. 1994) (citing Bonner, 874 F.2d at 826) (emphasis added). Footnote The trial court in this case found no intervening exigency, but rather, citing Kemp, concluded that Investigator Richmond had in fact waited for 15 seconds before proceeding to break into the rear of the house (M. Tr. 128-129). That finding was clearly erroneous.

C.The Trial Court's Conclusion That The Officers Waited Until They Were Constructively Denied Admittance Was Based Upon A Misunderstanding Of The Entering Officer's Testimony And Was Not Supported By The Record.

The trial court's conclusion that Investigator Richmond had waited 15 seconds before concluding that he had been constructively denied admittance was based on a misunderstanding of Investigator Richmond's testimony. The confusion arose because of the prosecutor's apparent misunderstanding of the relevant time period under the knock and announce statute.

The prosecutor repeatedly elicited testimony from Investigator Richmond as to the time it took him to gain entry -- first to the kitchen, and then, when it became clear that the porch was part of the dwelling, to the porch. Likewise, the prosecutor argued these times to the actual breaking down of the doors as the appropriate measure under § 3109. See M. Tr. 120-121 ("the first break occurred after approximately ten seconds or so and the second break was 25 seconds"). The prosecutor -- perhaps for strategic reasons -- never asked Investigator Richmond the only relevant time question, which was how long he had waited, if at all, before concluding that he had been "refused admittance" and proceeding to break into the house. Investigator Richmond -- perhaps for the same reasons -- then tried to dodge questions from defense counsel that attempted to pin down the time at which he started breaking into the screen door (M. Tr. 42). However, Investigator Richmond's testimony that he thought that Mr. Whitehurst looked toward the door in response to the knock (id.) and that he began to cut the screen as soon as Mr. Whitehurst then turned away from the stove (M. Tr. 27) makes clear that Investigator Richmond waited essentially no time at all after his knock (just the moment it would have taken for Mr. Whitehurst to look up and turn from the stove) before proceeding to break in.

The trial court, unlike the government, clearly understood that the relevant time period was the time at which the officer could reasonably conclude that he had been constructively denied admittance and could proceed to break into the house. However, the court apparently misunderstood Investigator Richmond's testimony as to the chronology of events, erroneously substituting the time period before he gained entry to the porch, elicited by the prosecutor, for the time period before he started cutting the screen, as to which there was no direct testimony. Investigator Richmond testified that it took him about 15 seconds to break through the first two doors and gain entry into the porch (M. Tr. 54). The trial court clearly misstated Investigator Richmond's testimony when it found that he waited 15 seconds before starting to break into the screen door (M. Tr. 128). Here, the difference is crucial. This is not a case in which the breaking and the gaining of entry were virtually simultaneous. Because of the time involved in cutting the screen, reaching in and working the screen door latch, opening the screen door, trying the knob on the next door, finding it locked, ordering it rammed, and ramming it, the officer's testimony that it took him about 15 seconds to do all those things only confirms the inference that he spent no time at all waiting for someone to answer the door -- let alone the "at least ten seconds" required by Kemp -- but rather began cutting the screen the moment Mr. Whitehurst looked up and turned away.

Investigator Richmond never testified, the government did not argue, and the court did not find, that Investigator Richmond construed Mr. Whitehurst's actions in turning away from the stove as a refusal to admit him (let alone as any sort of exigency that would excuse compliance with the statute). Nor, on this record, would such a conclusion be reasonable. Given the prosecutor's concession that Mr. Whitehurst did not in fact hear the knock and announcement, this Court must infer that his reaction was consistent with that fact, i.e., he merely looked up quizzically at an unidentified noise and, when it did not continue, went about his business. Investigator Richmond's testimony is entirely consistent with such a conclusion. He testified simply that Mr. Whitehurst looked toward the door and then turned and began to walk away from the stove in a direction away from the door. He never described Mr. Whitehurst as startled or hurried in his movements or as giving any other indication that he appreciated that the police were at his door with a search warrant. Footnote Nevertheless, having apparently gotten Mr. Whitehurst's attention with his first knock, Investigator Richmond did not bother to knock again in an attempt to make himself heard through three separate doors. Rather, he immediately forced his way in, frightening Mr. Whitehurst and destroying property in precisely the way § 3109 is designed to prevent. See Griffin, 618 A.2d at 119 (noting "the terror that [use of a battering ram] is likely to instill" and that destroying a door deprives the occupants of personal security by leaving the premises vulnerable to intruders). Footnote

The remedy for a § 3109 violation must be suppression of all evidence seized as a result of the illegal entry. United States v. Anderson, 1994 U.S. App. LEXIS 29000, *34 (D.C. Cir. 1994) ("If the officers' entry into the apartment violated that statute, then the products of the subsequent search would have to be suppressed, regardless of the reasonableness of the search."). Here, the officers acted unreasonably in breaking precipitately into 237 15th Street, and all the evidence seized there must be suppressed.


A.Standard of Review.

Questions regarding the admissibility of evidence are reviewed for abuse of discretion. United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994).

B.The Government's Mid-Trial Reversal Of Position On The Gun's Operability Unfairly Prejudiced Mr. xxxxxxx's Defense.

The government's theory of the case throughout pre-trial discovery, the suppression hearing, and the entire first day of trial, was that the gun seized from Mr. xxxxxxx's room would not work (apparently because it had been "tampered with" (P.H. Tr. 7)). The government proceeded on the theory that Mr. xxxxxxx nevertheless could be convicted under 18 U.S.C. § 922(g)(1) and 6 D.C. Code § 2311(a) because the gun had been designed, at the time it was manufactured, to expel a projectile. The defense relied in good faith on the government's representations about the condition of the gun and -- with the court's explicit permission -- described the gun as inoperable in its opening statement to the jury. The government's sudden reversal of position on the gun's operability, midway through the trial, unfairly prejudiced Mr. xxxxxxx in the presentation of his defense.

First, the prosecutor conceded that the newly discovered evidence of operability was not material, even as he sought to introduce it (Tr. 113): "I know that operability is not at issue in this case." The government argued that the evidence should come in, not because it was relevant, but rather "kind of just to neutralize" defense counsel's statement in opening that the gun "doesn't even work." (Tr. 113). In fact, since there had not yet been any evidence that the gun was inoperable, there was nothing to "neutralize." To the extent that there was anything to "neutralize," that was fully accomplished when the court instructed the jury that the government need not prove that the gun worked. See Tr. 467 ("To find that the pistol in this case is a firearm, you do not have to find that the gun was operable at the time that the police recovered it").

   The court rejected defense counsel's suggestion that, given that the statement in opening had been made in good faith reliance on the government's representations, the appropriate course would be to simply have no further mention of the issue one way or the other by either party (Tr. 116). The court reasoned that, even though the jury had been instructed that opening statements are not evidence, the jury had nevertheless heard the reference to inoperability in the defense opening and might be "confused" by it (Tr. 116-117). The court therefore agreed to let the prosecutor "with one question, two, at most, just have the position stated, . . . that it's operable, period. End of story. No further elaboration on it. I just don't want any confusion here" (Tr. 117). The court's "confusion" rationale makes little sense, for allowing the government to switch positions midway through the trial could only serve to truly confuse the jurors by highlighting something everyone had agreed was a non-issue.

Moreover, the government's last-minute change in position prejudiced the defense because it had already relied before the jury upon the government's initial representations. First, appellant's trial counsel suggested in his opening that Greg Corbin was the real criminal in the house -- the one who had a "9 millimeter Taurus with live bullets that works" (Tr. 29). Defense counsel would never have treated a working firearm as so significant and so sinister if the government had made a timely disclosure of the operability of the weapon found in his client's room. Even more disturbing is the likelihood that Mr. Turner's testimony led the jurors to believe that defense counsel had misrepresented the facts to them. The trial court did not seem concerned about this possibility, suggesting that the jury might not remember who had said the gun was inoperable (Tr. 117). But the whole point of the testimony about operability was to rebut what Mr. xxxxxxx's trial counsel had told the jury in his opening statement. The government should not have been allowed to exploit its late notice with respect to operability in a way that undermined defense counsel's credibility with the jury.

The damage to defense counsel's credibility, and to Mr. xxxxxxx's case, was not fully repaired by Mr. Turner's testimony that the Metropolitan Police Department had originally concluded that the gun was inoperable and that Mr. Turner had only determined otherwise since the trial began. Because jurors have no understanding of the rules of criminal discovery, they would not appreciate that the government maintains custody of the evidence and that the defense generally must rely on the results of the government's scientific testing. Therefore, despite Mr. Turner's testimony that the government had only recently figured out that the gun was operable, the jurors might nevertheless believe that defense counsel -- having had equal access to the weapon -- had known that the gun worked all along but had tried to mislead them. Because his lawyer's credibility was undercut by the way in which the government handled the operability issue, Mr. xxxxxxx was unfairly prejudiced in the presentation of his defense. See United States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989) (reversing where suggestion that the defendant and his counsel had hidden a witness "must be taken as damaging to counsel's credibility before the jury, prompting the jury to summarily reject defense counsel's arguments on the facts and the law"); Bruno v. Rushen, 721 F.2d 1193, 1194-95 (9th Cir. 1983) (holding that suggestions that all defense lawyers camouflage the truth "severely damage an accused's opportunity to present his case before the jury," striking at fundamental due process protections; writ of habeas corpus granted), cert. denied, 469 U.S. 920 (1984); United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980) (reversing where suggestion that defense lawyer aided in destruction of evidence imputed guilt to the defendant and deprived him of fair trial). Finally, the prosecutor unfairly exploited the entire issue by arguing operability to the jury in closing argument. Despite his original acknowledgment that operability was "not at issue" in the case, and his representation to the court that if permitted to bring out operability through Mr. Turner he would not argue that evidence in closing, the prosecutor proceeded to remind the jury in his summation that Mr. Turner had testified that the gun "does fire a bullet" (Tr. 429) and to emphasize again in rebuttal: "It works. You put bullets in this gun, it will work." (Tr. 448). By surprising the defense with new evidence of operability after defense counsel had already relied on the government's representation that the gun did not work, and then arguing the evidence to the jury after promising not to, the government unfairly prejudiced Mr. xxxxxxx's defense and deprived him of a fair trial.



For the foregoing reasons, Mr. xxxxxxx's conviction should be reversed and the illegally seized evidence ordered suppressed. At a minimum, this Court should find that Mr. xxxxxxx was prejudiced by the belated evidence of operability and grant him a new trial.



Respectfully submitted,








Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Andre H. xxxxxxx



I hereby certify that the foregoing Brief for Appellant Andre H. xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).




Assistant Federal Public Defender


I hereby certify that two copies of the foregoing Brief for Appellant Andre H. xxxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C., 20001, this 12th day of December, 1994.




Assistant Federal Public Defender