UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4700

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHRISTINA M. GRAHAM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:06-cr-00143-JCC)

Argued: May 25, 2007 Decided: July 24, 2007

 

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Scott Anthony Surovell, SUROVELL, MARKLE, ISAACS & LEVY,

P.C., Fairfax, Virginia, for Appellant. Lana N. Pettus, Special

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Chuck

Rosenberg, United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Christina M. Graham appeals her convictions for driving under

the influence of alcohol and failing to obtain a Virginia driver’s

license within the time required by law. Graham argues that the

magistrate judge before whom her case was first tried erred in

allowing the government to reopen its case-in-chief in order to

correct mistaken testimony regarding the date of Graham’s traffic

stop and arrest, and that the judge should have instead granted a

judgment of acquittal. Graham argues that the new trial that was

subsequently awarded to her on these charges did not cure the

asserted error in granting the motion to reopen. She also contends

that her second trial for driving under the influence of alcohol

violated the Double Jeopardy Clause of the Fifth Amendment. We

reject these arguments and affirm.

I.

Shortly after 2 a.m. on October 16, 2004, U.S. Park Police

Officer Kermit Minnick stopped the car being driven by defendant

Christina M. Graham on the George Washington Memorial Parkway,

after observing the vehicle traveling at a high speed. The

defendant told Officer Minnick she had consumed “a few glasses” of

wine. Officer Minnick saw signs of intoxication and performed

three field sobriety tests, which produced further evidence of
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intoxication. Officer Minnick also found that alcohol was present

in the defendant’s breath in a preliminary breath test.

Officer Minnick arrested the defendant. At the Park Police

station, Officer Linda Freedman tested Graham using an instrument

to measure breath alcohol content, and produced two readings that

showed unlawfully high breath alcohol levels. The defendant was

issued four violation notices. She was charged with driving under

the influence of alcohol in violation of 36 C.F.R. § 4.23(a)(1),

which forbids driving while “[u]nder the influence of alcohol, or

a drug, or drugs, or any combination thereof, to a degree that

renders the operator incapable of safe operation,” and with driving

while intoxicated, in violation of 36 C.F.R. § 4.23(a)(2), which

forbids driving when “[t]he alcohol concentration in the operator’s

. . . breath is . . . 0.08 grams or more of alcohol per 210 liters

of breath.” Graham was also issued violation notices for speeding

under 36 C.F.R. § 4.21(c) and for failing to obtain a Virginia

driver’s license after moving to the state under 36 C.F.R. § 4.2

(incorporating Va. Code Ann. § 46.2-308).

The charges were tried before a magistrate judge. The

government called both Officer Minnick and Officer Freedman in its

case-in-chief. However, instead of asking the officers about

events on October 16, 2004 -- the date of the stop -- the

government asked the officers about the events of October 26, 2004.

Following the government’s misleading prompts, the witnesses
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described the traffic stop and arrest as having occurred on October

26, 2004.

Graham moved for a judgment of acquittal on the grounds that

because of the erroneous testimony, the government had failed to

present sufficient evidence that Graham committed any offenses on

the date listed on the violation notices under which Graham had

been charged. The government moved to reopen its case to correct

the error, and the trial judge granted the motion. Officer Minnick

took the stand again and testified briefly that he had initially

thought the offenses occurred on October 16, but concluded he was

mistaken based upon the government’s questioning, and only later

realized he had provided the incorrect date on the stand.

The defendant then presented her case. She did not contest

that the traffic stop occurred or that she was the person whom

Officer Minnick had stopped. Rather, she argued that the results

of the field sobriety and breath analysis tests could have been

explained by physical ailments and other causes. The magistrate

judge convicted the defendant of driving under the influence of

alcohol and of failing to obtain a Virginia license within the

period required by law. The court found the defendant not guilty

of driving while intoxicated and speeding. 

Graham appealed her convictions to the district court. The

district court stated that the magistrate judge had not erred in

allowing the government to reopen its case, but that “out of an
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abundance of caution,” the defendant’s convictions would be

reversed and remanded for a new trial to ensure that the defendant

had a full and fair opportunity to respond to all of the

government’s evidence in light of the reopening.

On remand, Graham was convicted before a different magistrate

judge of driving under the influence of alcohol and failing to

obtain a Virginia license within the time required. After the

district court affirmed these convictions, Graham filed this

appeal.

II. 

Graham first contends that her convictions must be overturned

because the magistrate judge at her first trial should have granted

her motion for acquittal after the government first rested its

case-in-chief, rather than permitting the government to reopen its

case so that Officer Minnick could testify that he had misstated

the date of the defendant’s traffic stop and arrest. As the

defendant acknowledges, a court may permit the government to reopen

its case-in-chief to present additional evidence after a defendant

moves for a judgment of acquittal, United States v. Gray, 405 F.3d

227, 238 n.5 (4th Cir. 2005), and its decision is reviewed only for

abuse of discretion, United States v. Paz, 927 F.2d 176, 179 (4th

Cir. 1991). We reject Graham’s claim because we agree with the

district court hearing the appeal of Graham’s first convictions
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that the magistrate judge did not abuse his discretion merely

because he permitted the government to reopen its case and correct

its error regarding the date of offense. Moreover, we agree with

that district court that any prejudicial effect from the reopening

was corrected by granting Graham an entirely new trial on the

counts of conviction.

First, we agree with the district court that the magistrate

judge’s permitting the government to reopen its case was eminently

reasonable, such that the only conceivable abuse of discretion

could have come if the magistrate judge reopened the case in a

manner that somehow deprived Graham of an opportunity to adjust her

defense. In exercising its discretion concerning a motion to

reopen, a court 

must consider the timeliness of the motion, the character

of the testimony, and the effect of the granting of the

motion. The party moving to reopen should provide a

reasonable explanation for failure to present the

evidence in its case-in-chief. The evidence proffered

should be relevant, admissible, technically adequate, and

helpful to the jury in ascertaining the guilt or

innocence of the accused. The belated receipt of such

testimony should not “imbue the evidence with distorted

importance, prejudice the opposing party’s case, or

preclude an adversary from having an adequate opportunity

to meet the additional evidence offered.”

United States v. Peay, 972 F.2d 71, 73 (4th Cir. 1992) (quoting

United States v. Thetford, 672 F.2d 170, 182 (5th Cir. 1982)).

There is no dispute that a number of considerations supported

granting the government’s motion to reopen. Graham concedes that

the testimony concerning the date of the traffic stop and arrest
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was “relevant, admissible, technically adequate, and helpful . . .

in ascertaining the guilt or innocence of the accused.” Id. In

addition, the government’s motion can hardly be described as

untimely, since the government sought to reopen its case only hours

after resting and before Graham had presented any evidence of her

own.

While Graham contends that the trial court nevertheless abused

its discretion because the government failed to present “a

reasonable explanation” for its failure to introduce evidence of

the correct date of offense in its case-in-chief, id., we cannot

agree. The government’s attorney told the magistrate judge that

the failure to introduce testimony establishing the correct date of

offense was due to her own “mistake,” because she “misled [her]

witnesses by framing the questions with respect to October 26th,”

rather than October 16th. A prompt account of attorney mistake,

akin to a scrivener’s error, is not a per se unreasonable

explanation for a failure to introduce evidence, which can never be

corrected through a prompt motion to reopen. We have previously

found, to the contrary, that trial courts were entitled to grant

motions to reopen when attorney error gave rise to the need to

introduce additional evidence. Gray, 405 F.3d at 238 (holding that

after the government “inadvertently rested without putting [a

witness] on the witness stand . . . the district court did not
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abuse its discretion in permitting the Government to reopen its

case-in-chief to present this evidence”).

Under these circumstances, we agree with the district court

that the only possible abuse of discretion in reopening would have

come if the magistrate judge granted the government’s motion but

somehow prejudiced Graham by preventing her from fully meeting the

government’s evidence. Peay establishes that even if a party’s

motion to reopen its case is timely, supported by a reasonable

explanation, and would lead to the introduction of relevant and

helpful testimony, it is error to reopen the evidence if the other

party is not provided an opportunity to meet the evidence or adjust

its case appropriately in response. 972 F.2d at 73-74. However,

Peay also establishes that the appropriate remedy for such an error

is a new trial. Id. at 74. That is a remedy the district court

already granted the defendant, “out of an abundance of caution,”

and as a result, even if there was prejudice to the defendant in

the manner in which the government’s case was initially reopened,

the defendant is entitled to no further relief.

III.

The defendant also argues that she was subjected to

unconstitutional double jeopardy when she was retried on the charge

of driving under the influence of alcohol. The Double Jeopardy

Clause “has never precluded a second trial for a defendant ‘who has
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succeeded in getting his first conviction set aside.’” United

States v. Bowe, 309 F.3d 234, 238 (4th Cir. 2002) (quoting North

Carolina v. Pearce, 395 U.S. 711, 720 (1969)). The defendant was

retried only upon the charges for which her prior convictions had

been “set aside” as the result of her initial appeal to the

district court. Id. Therefore, as the district court that

reviewed the defendant’s second set of convictions carefully

explained, Graham’s retrial did not violate the Fifth Amendment’s

Double Jeopardy Clause.

IV.

For the foregoing reasons, the judgment below is 

AFFIRMED.