UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WILLIAMS, JOHN


99-3058a

D.C. Cir. 2000


*	*	*


Karen LeCraft Henderson, Circuit Judge: John Williams  seeks reversal
of his conviction of possession of a firearm and  ammunition by a
felon. Williams argues that the district  court made erroneous
evidentiary rulings that cannot be  deemed harmless. He challenges the
admission of police  officers' testimony regarding the contents of a
police radio  call during the events leading to his arrest, the
general  danger of traffic stops and the assertion that drug users 
commonly carry weapons. It is the admission of the latter,  followed
by the trial court's denying Williams an opportunity  to cross-examine
the witness and the government's mention  of the testimony in closing
argument, which concerns us  here.1


I.


Between 1:30 and 1:45 a.m. on August 1, 1998, Officers  Antonio Duncan
and David Reid of the Metropolitan Police  Department, patrolling in
the southeast region of the District  of Columbia in a police cruiser,
stopped the car in which  Williams was a passenger for failing to stop
completely at a  stop sign and then straddling a double-yellow line.
As soon  as the officers left their cruiser, Williams got out of the 
passenger side of the car "in a crouched position." Tran- script (Tr.)
3/3/99 at 39. The officers testified that Williams  immediately
reached for his waistband and that he was  holding something "of some
girth[,] ... an object of some  weight," id. at 166, which they
believed could have been a  concealed weapon. See id. at 158-59,
166-67. Ignoring  commands to remain in the car and, then, to show his
hands,  Williams maneuvered around the open door and began run-




__________

n 1 We have considered Williams's arguments regarding the admis-
sibility of other portions of the officers' testimony and find them 
without merit.


ning. Duncan chased him while Reid detained the driver,  who had stayed
in the car.2


Running with his hands at his waistband, Williams began to  cross a
footbridge. He collided into the metal railing and  slowed down a bit.
The collision caused a metal clanking  noise. Duncan suspected that
whatever object Williams ap- peared to have been carrying caused the
clanking noise and  that Williams may have discarded it from the
bridge. Con- tinuing his pursuit, Duncan did not hear the sound of an 
object striking the concrete "creekbed" below. He made a  radio call
requesting backup wherein he described the suspect  and his location
and mentioned the "possibility" that the  suspect had a gun.3 Tr.
3/3/99 at 47. Shortly thereafter,  Duncan apprehended and arrested
Williams with the help of  an unidentified civilian.


Officer Carter Adams responded to the radio call and, at  Duncan's
direction, searched portions of the creekbed.  Williams had told
Duncan, when returning to the spot where  he hit the footbridge
railing, first, that Duncan had not seen  him throw anything and "had
no case" and, then, that he had  thrown his "stash" or his "works,"
id. at 50, terms commonly  used to refer to drugs and drug
paraphernalia, respectively.  Adams found no drugs or drug
paraphernalia but did find a  handgun. The creekbed contained "no more
than half an  inch" of water. Tr. 3/4/99 at 5. Analysis of the gun
revealed  neither fingerprints nor rust. The safety switch on the side
 of the gun facing the ground was bent and a piece on the  bottom of


Williams's first trial on one count of unlawful possession of  a
firearm and ammunition by a felon, a violation of 18 U.S.C. 




__________

n 2 The reasonableness of neither the stop of the car nor the 
subsequent pursuit of Williams is in question.


3 While Duncan testified that he had said "possibility" in the  radio
call, see Tr. 3/3/99 at 47, Officer Carter Adams, who respond- ed to
the call, testified that he remembered the radio call different- ly,
that is, as describing the suspect as a man with a gun. See Tr. 
3/3/99, mid-afternoon session, at 5. The tape of the call was not in 
evidence.


s 922(g)(1), resulted in a mistrial when the jury failed to  reach a
unanimous verdict. After Williams withdrew a guilty  plea to a lesser
offense, a second trial commenced. The  officers' testimony at the
retrial focused on their suspicion  that Williams had a gun because of
his movements when he  got out of the car and his collision with the
bridge railing.  The officers conceded, however, that they did not see
an  object in Williams's hands nor see him actually throw any- thing.
Defense counsel offered other explanations for the  officers'
observations and for the discovery of the gun in the  creekbed. The
government had established Williams was a  drug user4 so defense
counsel raised the possibility that  Williams could have discarded
drugs or drug paraphernalia,  see Tr. 3/3/99 at 109-11, and suggested
that the officers did  not conduct an adequate search to rule out the
possibility, see  id. at 140-42. Counsel also elicited testimony that
violence  was common in the area and recovery of a gun in the area 
was not unprecedented. See id. at 80.


After a lengthy redirect examination of Duncan, the prose- cutor ended
the questioning with the following exchange:


Q: Now you were asked a lot of questions about violent  crimes in that
area [where the chase and subsequent  arrest occurred] and about guns
being discarded, is that  right?


A: Correct.


Q: Okay. And you know that area pretty well?


A: Yes. ...


Q: In your experience as a patrol officer, is it common  for people who
use drugs or sell drugs to carry weapons  for protection?


A: Yes.


Tr. 3/3/99 at 160-61 (emphasis added). The court then ex- cused Duncan
from the witness stand and defense counsel  


__________

n 4 See Tr. 3/3/99 at 68-69 (property taken from Williams after  arrest
included syringe and needle exchange card).


approached the bench, explaining that she would have object- ed to the
last question but did not have the chance because  "[t]hat answer came
out so quickly." Id. at 161. The trial  judge said she would have
allowed the exchange in any event  and then denied counsel's request
for a "very brief re-cross."  Id. The prosecutor reminded the jury of
Duncan's testimony  during her reply closing argument and in the
following con- text:


Counsel also raised an issue about violent crime in the  area to
explain, possibly, how this gun--some other way  that this gun could
have ended up in that creek....  [C]ounsel ask [sic] a number of
questions about violent  crime and about people discarding weapons in
the area[,]  and you will recall those type [sic] of questions. Well, 
remember that the officer also testified that it is not  uncommon for
drug users or drug sellers to carry weap- ons for protection as


Ladies and gentlemen, there is no evidence that this  weapon was tied
to any violent crime. And in fact, the  evidence is to the contrary
because had this gun been  involved in a violent crime, where somebody
wanted to  get rid of it, you would expect that it wouldn't be fully 
loaded.... If you recall, this was a fully loaded weapon  with one in
the chamber.... In addition, it's an expen- sive weapon....


Tr. 3/4/99 at 154-55.


Williams was convicted and sentenced to 180 months in  prison, followed
by two years of supervised release. A spe- cial assessment of $100 was
also imposed.


II.


We review a trial judge's evidentiary rulings for abuse of  discretion.
See United States v. Smart, 98 F.3d 1379, 1386  (D.C. Cir. 1996)
(citing United States v. Salamanca, 990 F.2d  629, 637 (D.C. Cir.),
cert. denied, 510 U.S. 928 (1993)). A  "district court's decision to
admit evidence ... is entitled to  'much deference' on review," United
States v. Ramsey, 165  F.3d 980, 984 n.3 (D.C. Cir.) (quoting United
States v. Lewis, 


693 F.2d 189, 193 (D.C. Cir. 1982)), cert. denied, 120 S. Ct.  223
(1999), but if it is found erroneous, the burden is on the  government
to prove the error was harmless. See United  States v. Lampkin, 159
F.3d 607, 614 (D.C. Cir. 1998), cert.  denied, 526 U.S. 1140 (1999);
Smart, 98 F.3d at 1390 ("At all  times, the burden of proving that an
error was not prejudicial  rests on the government.") (citing United
States v. Olano, 507  U.S. 725, 734 (1993)).


A.


Williams challenges the admission of Duncan's affirmative  reply on
redirect examination to the following question: "In  your experience
as a patrol officer, is it common for people  who use drugs or sell
drugs to carry weapons for protection?"  Tr. 3/3/99 at 160-61.
Although the inquiry regarding Dun- can's experience with drug dealers
commonly carrying weap- ons for protection raises no eyebrows, see,
e.g., United States  v. Conyers, 118 F.3d 755, 757 (D.C. Cir. 1997)
(noting in  appeal of drug trafficking conviction "those who transport
 drugs often carry (and all too often use) a firearm"), we  cannot say
the same regarding drug users.5 Finding the link  between drug users
and guns tenuous, we look to the founda- tion of Duncan's opinion


The prosecutor framed the question to Duncan as "in [his]  experience
as a patrol officer." Duncan had testified earlier  that he had made
gun charge arrests about "six or seven  times." Tr. 3/3/99 at 148. He
added that he had "recovered  more than one weapon on a person" and
then revised his  previous estimate to "anywhere from ten to eleven,
just a  general amount." Id. After hearing defense counsel's late 
objection to Duncan's response and commenting that she  would have
overruled the objection had it been timely made,  the trial judge
denied defense counsel the opportunity to  recross-examine Duncan.




__________

n 5 As noted, evidence at trial established that Williams was a drug 
user. See, e.g., Tr. 3/3/99 at 50, 68-69.


The foundation of Duncan's opinion linking drug users and  possession
of weapons is anything but firm. Fewer than one  dozen arrests
involving possession of a firearm is not suffi- cient grounding to
qualify him as an expert under Rule 702 of  the Federal Rules of
Evidence (FRE), particularly without  evidence establishing that any
of those arrests involved a  drug user. If, instead, we view his
testimony as having been  admitted under Rule 701,6 FRE, we question




__________

n 6 Rule 701, FRE, allows lay opinion testimony that "is limited to 
those opinions or inferences which are (a) rationally based on the 
perception of the witness and (b) helpful to a clear understanding of 
the witness' testimony or the determination of a fact in issue." Fed. 
R. Evid. 701. We afford trial judges broad discretion in admitting 
opinion testimony of lay witnesses. See, e.g., United States v. 
Pierson, 503 F.2d 173, 176 (D.C. Cir. 1974) (trial judge should have 
broad discretion and "[o]nly a clear abuse of discretion" warrants 
reversal); see also United States v. Pierce, 136 F.3d 770, 773 (11th 
Cir.) (" 'The ultimate decision as to the admissibility of lay opinion
 testimony is committed to the sound discretion of the district court 
and will not be overturned on appeal unless there is a clear abuse of 
discretion.' ") (quoting United States v. Myers, 972 F.2d 1566, 1576-
77 (11th Cir. 1992)), cert. denied, 525 U.S. 974 (1998). The leeway 
is due in large part to the opportunity the trial judge ordinarily 
affords opposing counsel to expose a weak foundation through 
cross-examination of the witness. See, e.g., Pierson, 503 F.2d at 176 
(" 'It is hardly ever reversible error to admit such evidence; its 
foundation may generally be as conveniently left to cross-
examination.' ") (quoting Central R.R. Co. of N. J. v. Monahan, 11 
F.2d 212, 214 (2d Cir. 1926) (Hand, J.)); see also Daubert v. Merrell 
Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ("Vigorous 
cross-examination, presentation of contrary evidence, and careful 
instruction on the burden of proof are the traditional and appropri-
ate means of attacking shaky but admissible evidence."). Neverthe-
less, to admit lay opinion evidence rationally based on the witness's 
perception, a sufficient factual foundation must exist. See, e.g., 
Carter v. United States, 252 F.2d 608, 617 (D.C. Cir. 1957) (lay 
witnesses may testify "only upon the basis of facts known to them").


The Office of Legal Education of the Executive Office for United 
States Attorneys provides guidelines to establish a proper founda-
tion for the opinion testimony of a skilled lay observer:


can's answer was rationally based on his perceptions. He did  not
establish a factual basis for credible opinion testimony  regarding
the likelihood of drug users being armed.7 More- over, as noted above,
trial judges generally rely on the  structural check of
cross-examination in permitting opinion  testimony with a weak
foundation and, for that reason, enjoy  broad discretion. But here the
trial court refused to grant  defense counsel's request for an
opportunity to recross- examine Duncan which would have allowed
counsel to expose  Duncan's lack of experience. We conclude that the
district  court's ruling admitting arguably relevant testimony8 over 


__________

n 1. That the witness has, on prior occasions sufficient in num- ber to
support a reasonable inference of knowledge of or  familiarity with a
subject, observed particular events, condi- tions, or other matters.
2. That the witness on a certain occasion observed a specific  event,
condition, or matter of the same nature as previously  observed. 3.
That on the basis of his knowledge or familiarity with the  event,
condition or matter, he has an opinion as to the event,  condition or
matter involved in the case. 4. That the statement of the opinion will
be helpful to a clear  understanding of the testimony of the witness
[or] the determi- nation of a fact in issue.


J. Randolph Maney, Jr. & Ruth E. Lucas, Courtroom Evidence 130  (Office
of Legal Education, Executive Office for United States  Attorneys
(1998) (citing Murl A. Larkin, Federal Evidence Foun- dations 119-20
(1988)). Here the prosecutor established neither  the first nor the
second premise above. She elicited no testimony  from Duncan regarding
any "prior occasions," much less occasions  "sufficient in number to
support a reasonable inference of knowl- edge," in which he arrested
drug users carrying guns or otherwise  observed drug users carrying


7 The lack of foundation for this testimony is especially clear  when
compared to the government's practice of eliciting expert  testimony
to establish drug dealers' habits. See, e.g., United States  v.
Fennell, 53 F.3d 1296, 1300 (D.C. Cir. 1995), order on reh'g, 77  F.3d
510 (1996).


8 Assuming a proper foundation, the testimony would tend to  make less
probable the scenario defense counsel had suggested,  that is, area
violence accounted for the gun found in the creekbed.


objection despite the lack of foundation, especially in light of  its
subsequent denial of defense counsel's request for "a very  brief
re-cross," constitutes error. Cf. United States v. Stock,  948 F.2d
1299, 1302 (D.C. Cir. 1991) (error to deny cross- examination of
police officer for impeachment). We now  consider if the error was


B.


In determining whether a non-constitutional trial error is  harmless,
we ask whether " 'with fair assurance, after ponder- ing all that
happened without stripping the erroneous action  from the whole, that
the judgment was not substantially  swayed by the error.' " United
States v. Schaffer, 183 F.3d  833, 852 (D.C. Cir. 1999) (quoting
Kotteakos v. United States,  328 U.S. 750, 765 (1946)). In other
words, we ask "whether  the error 'had a substantial or injurious
effect or influence in  determining the jury's verdict.' " Smart, 98
F.3d at 1390  (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 
(quoting Kotteakos, 328 U.S. at 776)). If the error had such  an
effect, or if we are left in " 'grave doubt' " about the  harmlessness
of the error,9 we must reverse the conviction.  Id. (quoting O'Neal v.
McAninch, 513 U.S. 432, 435 (1995)).


On the record below, we can identify only one factor (apart  from the
testimony itself) suggesting the testimony may have  affected the jury
verdict, that is, the prosecutor's reminding  the jury of Duncan's
testimony during her closing argument  in rebuttal. See United States
v. Rhodes, 886 F.2d 375, 382  (D.C. Cir. 1989) (prosecutor's closing
argument reference to 




__________

n 9 The United States Supreme Court has said: "By 'grave doubt'  we
mean that, in the judge's mind, the matter is so evenly balanced  that
he feels himself in virtual equipoise as to the harmlessness of  the
error." O'Neal v. McAninch, 513 U.S. 432, 435 (1995). Ex- plaining
further, the Court described "grave doubt" as "unusual"  because
"[n]ormally a record review will permit a judge to make up  his or her
mind about the matter ... [a]nd indeed a judge has an  obligation to
do so." Id.


improperly admitted evidence contributed to conclusion that  error was
not harmless). Because the testimony was elicited  during redirect
examination and recross-examination was de- nied, defense counsel
could have responded to the testimony  only in her closing argument
and could not have responded at  all to the prosecutor's rebuttal
reference to Duncan's testimo- ny. Although defense counsel did not,
perhaps understand- ably, request a limiting instruction regarding
Duncan's chal- lenged testimony, she did obtain a limiting instruction
as to  other portions of Duncan's testimony. See Tr. 3/1/99 4-5, 8-9 
and Tr. 3/4/99 at 105 (instruction limiting use of testimony 
regarding radio call). The absence of an instruction limiting  the
jury's use of the challenged testimony may have rein- forced it. Cf.
United States v. Spinner, 152 F.3d 950, 961-62  (D.C. Cir. 1998)
(limiting instruction given for some but not  other "bad acts"
evidence may enhance latter's influence on  jury). Notwithstanding the
prosecutor's statement reminding  the jury of Duncan's testimony
linking drug users and guns,  we believe the statement, viewed in the
context of the entire  rebuttal closing argument (only one sentence in
an argument  covering ten pages in the record, see Tr. 3/4/99 at
150-59) had  minor impact. The prosecutor made the comment in re-
sponse to the defense explanation for discovery of the gun.  The
thrust of her response, however, was the lack of evidence  to support
Williams's theory that guns are endemic to a high  crime area.


The most significant factor that negates the error's impact  is the
weight and nature of the evidence against Williams.10  See generally
Stock, 948 F.2d at 1304 (refusal to allow cross- examination of
officer violated confrontation clause but was 




__________

n 10 Our dissenting colleague speculates that because the first trial 
resulted in a hung jury, the second trial necessarily presented a 
close case. See Dis. Op. at 1-2. We advise caution in assigning 
critical significance to the failure of a different jury, which heard 
different evidence and argument, to reach agreement. We should  also
hesitate to connect the length of deliberations with the strength  of
the government's case. But cf. id. (relying on Dallago v. United 
States, 427 F.2d 546 (D.C. Cir. 1969) (five-day deliberation after
six- week trial with 37 witnesses and 175 exhibits)).


harmless because other prosecution evidence "was so much  more credible
than the defense testimony that [the court  concluded] without
reasonable doubt that the jury would have  found [defendant] guilty").
The government's case was based  on Duncan's and Reid's observations
of Williams as he got out  of the car and as he fled. The officers
testified that Williams  first disregarded Duncan's order to remain in
the car. When  Williams got out, he was "in a crouched position," Tr.
3/3/99  at 39, and "immediately grabbed for his waistband," id. at 
166. He "was holding something of some girth," id., and  refused to
obey Duncan's command to show his hands, see id.  at 167, instead
running away with his hands still at his  waistband. See id. at 44.
Recounting his pursuit, Duncan  said that Williams's bumping into the
metal railing of the  footbridge caused a clanking noise as Williams
slowed down  and appeared to discard something. See, e.g., id. at
45-48.  When Duncan finally apprehended him, Williams first stated 
"that [Duncan] didn't see him throw anything, and that  [Duncan] had
no case," and then claimed he had thrown his  drug "works" from the


As a passenger in a car stopped by the police, Williams's  immediate
flight does not weigh in his favor.11 See Illinois v.  Wardlow, 120 S.
Ct. 673, 676 (2000) (defendant's unprovoked  flight from officers in
area of heavy narcotics trafficking  supported reasonable suspicion
defendant was involved in  criminal activity). More significant was
the ready discovery  of a handgun (without rust and slightly
damaged--both fac- tors consistent with having recently fallen from
the bridge  above) where Duncan suspected it would be found and the 
fact that Williams did not deny that he threw something from  the
bridge or that the police found the gun below the bridge.  Rather,
Williams offered an alternative explanation for what  he threw, which
was not found, and for why it was not found.  The properly admitted
evidence leaves little doubt that the  erroneous admission of the
testimony linking drug users and 




__________

n 11 The trial judge instructed the jury that evidence of flight may 
be properly considered as a circumstance suggesting guilt but that  it
does not raise a presumption of guilt. See Tr. 3/4/99 at 104.


guns was harmless. See United States v. Sanchez-Sotelo, 8  F.3d 202,
211 (5th Cir. 1993) (error in admitting lay opinion  testimony without
foundation harmless where evidence ali- unde permitted inference
establishing element of crime); cf.  United States v. Rhodes, 62 F.3d
1449, 1453 (D.C. Cir. 1995)  (error in admitting without foundation
prior inconsistent  statement of witness admitting he and defendant
had been  selling drugs and firearms not sufficiently prejudicial to
war- rant reversal where prosecution established drugs and weap- ons
seized belonged to defendant); United States v. McCon- nell, 988 F.2d
530 (5th Cir. 1993) (admission of coconspirator  statement without
foundation constituted reversible error in  conspiracy conviction
where hearsay testimony was "crucial  link in the chain" between
appellants and conspiracy) (em- phasis added).


Moreover, although, as noted earlier, defense counsel re- quested no
limiting instruction, the trial judge gave standard  instructions that
the jury is the "sole judge" of the credibility  of the witnesses, Tr.
4/4/99 at 102, a determination that may  be affected by whether a
witness had an opportunity to  observe matters about which he
testified, see id., and that the  questions, statements and arguments
of the lawyers are not  evidence. See id. at 100, 101. We believe
these instructions  further mitigated any potential prejudice. See
United States  v. Hawkins, 595 F.2d 751, 755 (D.C. Cir. 1979) (similar
 instructions "provided at least some mitigation of any preju- dice
... which might have arisen from the prosecutor's  closing remarks");
Barkley v. United States, 323 F.2d 804,  808 (D.C. Cir. 1963) (no
plain error for failure to give caution- ary instruction on lay
testimony in absence of request and  where general credibility
instruction given). But cf. United  States v. Watson, 171 F.3d 695,
700-02 (D.C. Cir. 1999)  (standard jury instructions notwithstanding,
prosecutor's mis- statement of evidence in closing regarding central
issue in  close case not harmless error).


In addition, Duncan's testimony elicited by the prosecution  was only
partially objectionable. The reference to drug users  did not stand
alone; rather, the prosecution referred to drug  users and drug
dealers. The fact that the jury heard unob-


jectionable testimony together with objectionable testimony  may have
"buried," and therefore minimized, the objectiona- ble portion.


For the foregoing reasons, we conclude that the brief  testimony and
argument linking drug users and guns did not  have a "substantial
effect" on the verdict nor are we left in  "grave doubt" regarding the
harmlessness of the error. Re- viewing the evidence against Williams,
we are confident the  jury focused on Duncan's and Reid's observations
of Williams  during the stop and pursuit and on other inculpatory evi-
dence, including the location and condition of the gun re- trieved,
not on Duncan's affirmative response to a general  proposition made at
the very end of his lengthy testimony.  Accordingly, we find the error
harmless and affirm Williams's  conviction.


So ordered.


Silberman, Circuit Judge, dissenting: I agree with the  majority that
the trial judge committed error in this case, but  I disagree that the
error was harmless.


This was a close case. Although the officers testified that  appellant
was acting as if he had a gun, no one saw appellant  with one, and
there were no fingerprints on the gun. See  Maj. Op. at 3. Appellant's
flight is neither here nor there  with respect to whether he possessed
a firearm; flight is  equally indicative of appellant's possession of
the illegal drugs  he claimed to have. See Maj. Op. at 11. There is a
vast  difference between using flight as the basis for a reasonable 
suspicion of some unknown criminal activity, see Illinois v.  Wardlow,
120 S. Ct. 673, 676 (2000), and using flight here to  link appellant
to a gun found in his vicinity. While some  evidence was at least
suggestive of appellant's guilt (his  behavior, the condition of the
gun), it was hardly overwhelm- ing. I find it difficult to believe a
jury found defendant guilty  beyond a reasonable doubt.


The majority considers the possibility that the jury did not  pay
attention to Officer Duncan's statement with respect to  drug users
and guns, hypothesizing that the officer's state- ment with respect to
drug dealers overshadowed it. See Maj.  Op. at 12-13. But I find that
unlikely. If, as we all agree, a  statement that "drug dealers
commonly carry weapons for  protection raises no eyebrows," Maj. Op.
at 6, it is probable  the jury focused on the new information that the
same is true  of drug users. Since appellant was an admitted drug
user-- he argued as much to the jury--the likelihood that the jury 
glossed over Officer Duncan's statement is minuscule. And  the
prejudicial statement cuts right to the heart of the case:  Was this
drug user in possession of a gun?


It is particularly troubling that, as the court's opinion  recounts,
the first jury to consider this case could not reach a  decision,
resulting in a mistrial. See Maj. Op. at 3-4.1 It 




__________

n 1 The majority does not contend-nor could it-that the first trial's 
hung jury is irrelevant. See Maj. Op. at 10 n.10. Combined with  the
weakness of the government's case it should trouble the majori- ty as
much as it does me.


was only in the second trial, in which Officer Duncan's  prejudicial
statement about drug users and weapons was  introduced, a statement
repeated by the prosecutor during  her summation, that appellant was
convicted. Since the  inquiry we undertake asks whether "with fair
assurance, after  pondering all that happened without stripping away
the erro- neous action from the whole, ... the [jury's] judgment was 
not substantially swayed by the error," the original mistrial is 
undoubtedly relevant. United States v. Schaffer, 183 F.3d  833, 852
(D.C. Cir. 1999). The difficulty the first jury had  with this case
amply demonstrates that we are not consider- ing "an error [that] may
be more freely disregarded [because]  the evidence of defendant's
guilt was overwhelming, since in  such a case the outcome would almost
surely have been the  same despite the error." Charles A. Wright, 3A
Fed. Prac. &  Proc. Crim.2d s 854 (1982). If we are willing to take
into  consideration the length of jury deliberations in our harmless 
error review, see Dallago v. United States, 427 F.2d 546, 559  (D.C.
Cir. 1969) ("The jury deliberated for five days, and one  would expect
that if the evidence of guilt was overwhelming  the jury would have
succumbed much sooner."), surely we  must consider the import of the


Under these circumstances, I would remand for a new trial.