United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2007 Decided June 19, 2007

No. 05-3081

UNITED STATES OF AMERICA,

APPELLEE

v.

ANDREW J. LITTLEJOHN, III,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00472-01)

Ketanji B. Jackson, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A.

J. Kramer, Federal Public Defender. Mary M. Petras and Neil

H. Jaffee, Assistant Federal Public Defenders, entered

appearances.

Sarah T. Chasson, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese, III. and John

Crabb, Jr., Assistant U.S. Attorneys.
2

Before: SENTELLE, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge SENTELLE.

TATEL, Circuit Judge: After United States Park Police

officers, pursuant to a warranted search, discovered a handgun

in the home appellant shared with his mother and brother, a

jury convicted him of unlawful possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g). Appellant challenges

his conviction, arguing that (1) the government produced

insufficient evidence that he constructively possessed the

weapon, (2) the district court erred by admitting evidence that

appellant was the target of the warrant, and (3) the district

court’s use of compound voir dire questions deprived him of

his Sixth Amendment right to an impartial jury. Although we

find the evidence sufficient to establish constructive

possession and see no abuse of discretion regarding the

evidentiary ruling, we agree with appellant that under the

particular circumstances of this case the district court’s use of

compound questions violated the Sixth Amendment. We

therefore vacate appellant’s conviction and remand for further

proceedings consistent with this opinion. 

I.

Shortly after 7 a.m. on October 1, 2003, several

uniformed U.S. Park Police officers executed a search warrant

at a home at 457 Burbank Street, S.E. Residing in the house

were Mary Littlejohn, who owned the home, and her son,

Appellant Andrew Littlejohn. Although Andrew’s brother,

Wildred Littlejohn, lived in a nearby college dormitory, he
3

returned home frequently. On this morning, however, only

Andrew Littlejohn was home. 

Upon arrival, Officer Mark Adamchik, dressed in a

SWAT team uniform, knocked on the door while his partner

announced their presence. At trial, Adamchik testified that he

saw Andrew Littlejohn peek through the blinds in the door

window, whereupon his partner announced, “Police with a

search warrant, open the door.” Nov. 17, 2004 Trial Tr. at

70–71. Instead of complying, Littlejohn urged the officers to

“Hold on a second” or “Hold on a minute.” Id. at 71.

Littlejohn then disappeared behind the blinds, and after a few

seconds of silence, the SWAT team broke down the door with

a battering ram. Adamchik entered the house and ascended

the stairs to the second floor.

Understanding the issues before us requires an accurate

picture of the second floor. A hallway runs perpendicular to

the top of the stairs. To the right of the stairs are two doors,

one leading to Mary Littlejohn’s bedroom and the other to a

bathroom. To the left of the stairs are two more doors. One

of those doors, at the end of the hall, leads to what witnesses

referred to as the “left rear bedroom.” The other door, leading

to the “right rear bedroom,” is along the hallway and near the

door to the left rear bedroom.

Officer Adamchik testified that as he climbed the stairs,

he looked through the railing and saw Andrew Littlejohn six

to twelve inches outside the door to the left rear bedroom

“moving in a hurried manner” down the hall towards the

bathroom. Id. at 74. Adamchik ordered Littlejohn to “get on

the ground” and Littlejohn complied. Id. at 75. 
4

With Littlejohn secured, other officers began searching

the house. In the left rear bedroom, they noticed a laundry

basket approximately four to five feet from the door. Inside

the basket and beneath clothes and sheets, the officers

discovered a loaded 9-millimeter semi-automatic pistol. No

fingerprints were recovered from the weapon or the rounds

inside it. Also in the left rear bedroom, the officers found two

pieces of mail addressed to Andrew Littlejohn and two career

training certificates in his name. The officers discovered

other documents bearing Andrew Littlejohn’s name in the

right rear bedroom (including his high school diploma) as

well as throughout the rest of the house. On crossexamination, Investigator David Hurley, the officer in charge

of collecting evidence, testified that although he saw

documents with Wildred’s name on them, he seized only

documents bearing Andrew’s name. 

After waiving his Miranda rights, Littlejohn admitted to

Investigator Hurley that he lived in his mother’s home.

Although Littlejohn told Hurley that the bedroom “on the left”

was his, he subsequently “clarified” that he meant the right

rear bedroom. Nov. 16, 2004 Trial Tr. at 147; Nov. 17, 2004

Trial Tr. at 29. Littlejohn also told Hurley that his brother

Wildred had last been in the house three days earlier.

The defense presented a single witness, Mary Littlejohn.

She testified that Andrew lived in the right rear bedroom,

while the left rear bedroom, where the gun was found,

belonged to Wildred. She also testified that Wildred used the

basket containing the gun to carry his laundry to and from

school.
5

Following a trial on the only contested

question—whether Littlejohn constructively possessed the

weapon—the jury convicted him of unlawful possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g).

Littlejohn appeals, presenting three claims. First, he

challenges the sufficiency of the evidence against him.

Second, he contests an evidentiary ruling in which the district

court permitted Investigator Hurley to identify Littlejohn as

the subject of the warrant. Third, he argues that the district

court’s use of compound voir dire questions deprived him of

his Sixth Amendment right to an impartial jury. We consider

each claim in turn.

II.

We review challenges to the sufficiency of the evidence

de novo, viewing the “evidence in the light most favorable to

the government, and affirm[ing] a guilty verdict where any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v.

Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002) (internal quotation

marks and emphasis omitted). Moreover, we “giv[e] full play

to the right of the jury to determine credibility, weigh the

evidence and draw justifiable inferences of fact.” United

States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)

(internal quotation marks omitted). 

To establish constructive possession, the government

must show that “the defendant knew of, and was in a position

to exercise dominion and control over, the contraband.”

United States v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir.

1991). Thus, “there must be something more than mere

presence at the scene of a criminal transaction. There must be
6

some action, some word, or some conduct that links the

individual” to the contraband. United States v. Pardo, 636

F.2d 535, 549 (D.C. Cir. 1980). “[E]vidence of some other

factor—including . . . evasive conduct . . . coupled with

proximity may surpass the minimum threshold of evidence

needed to put the question of guilt to a jury.” United States v.

Gibbs, 904 F.2d 52, 56 (D.C. Cir. 1990); see United States v.

Hernandez, 780 F.2d 113, 120 (D.C. Cir. 1986) (considering

evasive conduct, among other evidence, as demonstrating

constructive possession); United States v. Reese, 561 F.2d

894, 898 (D.C. Cir. 1977) (same).

Littlejohn argues that the evidence proves nothing more

than his proximity to the gun, not his possession of it. The

documents found in the left rear bedroom, he asserts, establish

only that he had access to that room, not that he possessed its

contents. Discounting the evidence that he fled from the

officers after seeing them at the front door, Littlejohn

contends that the government’s theory—that he ran upstairs to

hide the gun—is both “inconceivable” and “sheer

speculation.” Appellant’s Br. 23. 

This is a close case, but given our deferential standard of

review, we find the evidence sufficient to support the

conviction. Contrary to Littlejohn’s claim, proximity to the

weapon was not the government’s only evidence. According

to trial testimony, after seeing several fully-uniformed Park

Police officers on his doorstep, Littlejohn ran upstairs.

Officer Adamchik then discovered Littlejohn exiting the very

room in which the gun was recovered, and the weapon was

hidden in an easily accessible location only a few feet inside

the room. Given this evidence, we think it not

“inconceivable” that a reasonable jury could have concluded
7

that after seeing the Park Police officers through the front

door window, Littlejohn evaded them by fleeing upstairs and

hiding the gun in the laundry basket.

Relying on United States v. Watkins, 519 F.2d 294 (D.C.

Cir. 1975), Littlejohn argues that evasive conduct and

proximity are, by themselves, insufficient to support an

inference of constructive possession. In Watkins, after police

officers knocked on the door to an apartment, an individual

other than the defendant opened the door and, seeing the

officers, quickly closed it. Announcing they had a warrant

but receiving no answer, the officers forced open the door.

Inside, they found the defendant in a bedroom where they also

discovered narcotics. The only evidence linking the

defendant to the apartment, other than her presence, consisted

of a few books inscribed with her name. Id. at 298. We

found this evidence insufficient to establish that the defendant

constructively possessed the narcotics. 

Contrary to Littlejohn’s assertion, nothing in Watkins

stands for the proposition that evasive conduct combined with

proximity is insufficient to support an inference of

constructive possession. That issue was not before us in

Watkins because the record contained no evidence that

Watkins, as opposed to the individual who closed the door,

evaded the officers. 

Watkins differs from this case for another reason. There,

we emphasized the very limited evidence that the defendant

lived in or even frequently visited the apartment where the

contraband was found. Id. By contrast, Littlejohn confessed

to living in the house where the gun was discovered, and

although the defense later introduced evidence that the left
8

rear bedroom belonged to his brother, the fact that Littlejohn

kept personal documents in the bedroom (such as mail and

employment training certificates) suffices to establish that he

had joint access to and control over the room. As we have

held, “[a] jury is entitled to infer that a person exercises

constructive possession over items found in his home,” an

inference that “applies even when that person shares the

premises with others.” United States v. Morris, 977 F.2d 617,

620 (D.C. Cir. 1992). 

III.

The second issue before us relates to Investigator

Hurley’s testimony. During his direct examination, Hurley

testified that he and the other Park Police officers arrived at

Littlejohn’s home to execute a search warrant, but he did not

explain why the warrant had been issued. On crossexamination, defense counsel pointed out that although

Hurley testified he had found documents bearing Wildred’s

name, “the only documents that you actually picked up that

day were documents that had Andrew Littlejohn’s name on

[them].” Nov. 16, 2004 Trial Tr. at 167–68. On redirect and

over Littlejohn’s objection, the district court allowed Hurley

to testify that the warrant permitted the officers to search for

and seize documents relating to Andrew Littlejohn.

According to Littlejohn, this additional testimony was both

irrelevant and prejudicial. Given our highly deferential

standard of review, however, we can quickly dispense with

this claim. See United States v. (Thomas) West, 393 F.3d

1302, 1309 (D.C. Cir. 2005) (“When a relevance objection is

made at trial, admission of the referenced evidence is

reviewed for abuse of discretion.”); United States v. King, 254

F.3d 1098, 1100 (D.C. Cir. 2001) (reviewing for abuse of
9

discretion district court’s decision that evidence’s probative

value is not “substantially outweighed by the danger of unfair

prejudice,” FED. R. EVID. 403).

As the government points out, defense counsel’s “crossexamination of Investigator Hurley left the distinct impression

that the police had irrationally cherry-picked evidence to shore

up the case against” Littlejohn. Appellee’s Br. 22. Indeed,

Littlejohn continues to argue that Hurley “cherry-picked” the

evidence. Appellant’s Br. 32. By questioning Hurley’s

motive in seizing only documents bearing Andrew Littlejohn’s

name, defense counsel made the subject of the warrant

relevant. Once she opened the door, the government was

entitled to rehabilitate its witness by offering evidence of an

alternative explanation for the investigator’s actions, namely

that instead of trying to pin the gun on Littlejohn, the officers

were simply executing a warrant that authorized them to seize

his documents. The district court, moreover, limited any

prejudicial effect of this testimony by barring the government

from inquiring into why Littlejohn had been under

investigation. We thus find no abuse of discretion in the

district court’s ruling.

IV.

This brings us to the trickiest issue in this case:

Littlejohn’s challenge to the form of questioning the district

court employed during voir dire. The district court asked

prospective jurors thirty-two questions, six of which were

compound questions. For the twenty-six non-compound

questions, which Littlejohn does not challenge, prospective

jurors answering in the affirmative were asked by the court to

approach the bench. The court and attorneys from both sides
10

then asked follow-up questions, enabling the court to

determine whether the potential source of bias constituted

grounds to dismiss the prospective juror for cause. 

The six challenged compound questions were constructed

quite differently. For example, the district court asked the

prospective jurors whether they, their families, or their close

friends are or ever were employed in law enforcement. But

instead of directing the prospective jurors to answer that

question, the court repeatedly instructed them to remain silent

unless (1) they would have answered yes, and (2) they

believed that their law enforcement experience would render

them unable to evaluate the evidence impartially. The court

asked the question as follows:

The Court: . . . Ladies and gentlemen, this next

question is another one of those two-part

questions, okay, so listen carefully. If your

answer to the first question is yes, don’t raise

your hand right away, but listen very carefully

to the second question. If your answer to that

question is yes, you must raise your hand and

come up and talk to the Court about the issue.

Okay?

Now, here is the first question. And, again,

you don’t need to raise your hand. Listen

carefully. This is a question about you

personally, you personally as well as any close

family member or close personal friend.

Is there anyone in that group, either you

personally, close family member or close
11

personal friend, who is either presently or

previously employed by any law enforcement

agency? . . . . Now, if the answer to that is yes,

listen very carefully to this question.

As a result of that experience that either you

had personally or are having right now as an

employee, as a result of that experience or as a

result of the experience of a close family

member or a close friend, . . . do you believe

that you, that you personally would be unable

to be fair and impartial to both sides if selected

as a juror in this case?

Nov. 16, 2004 Trial Tr. at 37–38. The five other compound

questions covered several additional sources of potential bias: 

1) whether any of the prospective jurors “know any

member or members of this jury panel,” and, if so,

whether this would render them unable to evaluate

the evidence impartially, id. at 23–24;

2) whether any of the prospective jurors, their

families, or their close friends were “currently or

previously employed by any criminal defense

attorney or [had] been involved in any way in the

defense of criminal cases,” and, if so, whether this

would render them unable to evaluate the evidence

impartially, id. at 43–44;

3) whether any of the prospective jurors were

attorneys or studying the law, and whether, if so,
12

this would render them unable to follow the judge’s

instructions, id. at 44; 

4) whether any of the prospective jurors had

previously served as grand jurors, and, if so,

whether this experience would render them unable

to apply the higher standard of proof required in a

criminal trial, id. at 44–45; and 

5) whether any of the prospective jurors had served as

a juror in a prior criminal case and, if so, whether

this experience would render them unable to

evaluate the evidence impartially, id. at 45–46. 

While posing these questions, the district court repeatedly

instructed the prospective jurors that even if they would have

answered the first part of the question affirmatively, they were

to remain silent unless they believed this potential source of

bias would prevent them from fulfilling their duties as jurors.

See, e.g., id. at 23–24, 37, 43, 44, 45.

After the district court asked the first compound question,

defense counsel objected. She argued that the compound

format of the questions left her no opportunity to make an

independent determination of potential bias, leaving that

evaluation “completely up to the jurors.” Id. at 25. The

district court overruled the objection. 

Renewing this argument on appeal, Littlejohn focuses on

the above-quoted compound question regarding whether the

jurors, their families, or their close friends are or have been

employed in law enforcement. As Littlejohn points out, unless

a prospective juror who worked in law enforcement believed
13

that such employment would render impartial jury service

impossible, neither he nor the court would have any way of

knowing about this potential source of bias. This, he argues,

violates his Sixth Amendment right to an impartial jury. 

“Voir dire examination serves the dual purposes of

enabling the court to select an impartial jury and assisting

counsel in exercising peremptory challenges.” Mu’Min v.

Virginia, 500 U.S. 415, 431 (1991). The first purpose

implicates the Sixth Amendment; the second is statutory. See

United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000)

(“[U]nlike the right to an impartial jury guaranteed by the

Sixth Amendment, peremptory challenges are not of federal

constitutional dimension.”). Making only the constitutional

argument, Littlejohn claims that the compound questions

prevented the court from selecting an impartial jury and thus

violated his rights under the Sixth Amendment. 

The Sixth Amendment “includes the right to be tried by

jurors who are capable of putting aside their personal

impressions and opinions and rendering a verdict based solely

on the evidence presented in court.” United States v. Orenuga,

430 F.3d 1158, 1162 (D.C. Cir. 2005). In order to protect this

right, “[t]he defense always must be given a full and fair

opportunity to expose bias or prejudice on the part of the

veniremen.” Id. at 1163 (internal quotation marks omitted);

see also Morford v. United States, 339 U.S. 258, 259 (1950)

(per curiam) (reversing conviction because defendant had been

denied “the opportunity to prove actual bias,” which is “a

guarantee of a defendant’s right to an impartial jury” (internal

quotation marks omitted)). Although voir dire protects this

crucial Sixth Amendment right, the Supreme Court has

observed that “the adequacy of voir dire is not easily subject
14

to appellate review.” Rosales-Lopez v. United States, 451 U.S.

182, 188 (1981). As the Court explained, empaneling a jury

able to view the evidence dispassionately and follow the law

requires the district court to examine sources of potential bias

and evaluate the credibility of answers given by prospective

jurors, a role “not unlike that of the jurors later on in the trial.”

Id. We thus accord district courts “ample discretion in

determining how best to conduct the voir dire,” id. at 189,

including the “mode and manner of proceeding” and “the

range of questions put to the prospective jurors,” United States

v. Robinson, 475 F.2d 376, 380 (D.C. Cir. 1973). We will

reverse the district court only if it “abuses [its] discretion, and

there is substantial prejudice to the accused.” United States v.

Liddy, 509 F.2d 428, 435 (D.C. Cir. 1974). 

This is not the first time we have considered the

constitutionality of compound voir dire questions. In a

decision released after Littlejohn’s trial, United States v. West,

458 F.3d 1 (D.C. Cir. 2006), we considered precisely the same

compound question challenged here—whether the potential

jurors, their family members, or their close friends were or

ever had been employed in law enforcement. There, as here,

prospective jurors were instructed not to answer the first part

of the question unless they believed that this potential source

of bias would make it impossible to serve impartially.

Criticizing the compound nature of the question, we pointed

out that it “prevent[ed] the parties from learning the factual

premise of the first part of the question, relying instead upon

the juror’s self-assessment of his or her impartiality.” Id. at

10–11. “Undoubtedly,” we noted, “there are occasions upon

which further questioning is needed to permit the trial court to

make its own judgment of a juror’s impartiality based on

objective facts, rather than relying exclusively on the jurors’
15

subjective determinations of whether they [are] prejudiced.”

Id. at 11 (alteration in original, internal quotation marks

omitted) (quoting United States v. Caldwell, 543 F.2d 1333,

1345 (D.C. Cir. 1974)). In particular, we pointed out that 

the possibility of prejudice is real, and there is

consequent need for a searching voir dire

examination, in situations where, for example,

the case carries racial overtones, or involves

other matters concerning which either the local

community or the population at large is

commonly known to harbor strong feelings that

may stop short of presumptive bias in law yet

significantly skew deliberations in fact. . . .

[V]oir dire must be allowed on subjects with

respect to which bias and distorting influence

have become evident, through experience with

juries, and have come to be recognized as a

proper subject for the voir dire. This circuit has

held that the potential for jurors to attach undue

weight to the testimony of law enforcement

officials during trial is one such example.

Id. at 11 (internal quotation marks, alterations, and citation

omitted) (quoting Orenuga, 430 F.3d at 1163, and Robinson,

475 F.2d at 381). Finally—and critically to the case before

us—we warned that “more searching voir dire may be required

with respect to a prospective juror’s employment.” Id. at 12.

As an example, we cited United States v. Segal, 534 F.2d 578

(3d Cir. 1976), in which the Third Circuit ordered a new trial

where the district court, in a case involving the alleged bribery

of an IRS agent, had refused to inquire whether prospective

jurors or members of their immediate families worked for the
16

IRS. “[P]ast employment by the specific agency prosecuting

the case,” the Third Circuit held, “is a matter which should be

explored upon a party’s request.” Id. at 581. For all these

reasons, we “‘caution[ed] trial judges not to test the outer

limits of their discretion’ and, ‘[i]n particular, . . . to avoid

asking compound questions of prospective jurors.’” West, 458

F.3d at 13 (second alteration in original) (quoting United

States v. Edmond, 52 F.3d 1080, 1099 (D.C. Cir. 1995)). 

Despite our deep reservations about compound questions,

we found no Sixth Amendment violation in West.

Emphasizing that “our approval of the trial court’s actions is

inextricably linked to the particular circumstances of this

case,” id. at 13 (internal quotation marks omitted) (quoting

Edmond, 52 F.3d at 1099), we concluded that several factors,

considered collectively, ensured that the defendant had

sufficient information to challenge any prospective juror based

on possible bias in favor of law enforcement. First, both

parties had received a list of the current occupations of all

prospective jurors. Although the list contained no information

about past employment, we found this omission untroubling

because the defendant never requested such information.

Second, several non-compound questions bore on other law

enforcement experiences that prospective jurors may have had.

They were asked whether they or their close relatives or

friends had ever experienced anything that would lead them to

be biased in favor of or against testimony by law enforcement

officers; whether they had been a victim of, witness to, or

charged with a crime; whether they knew the prosecutor, the

defense attorney, the defendant, or any potential witness; and

whether they knew of “any reason that you can think of, even

though we haven’t covered it in a question, that you believe is

a basis for your inability to sit fairly, attentively, and
17

impartially if selected as a juror.” Id. at 7. Third—and

“perhaps most important”—“the credibility of the police

witnesses was not at issue at trial.” Id. at 7–8. As we pointed

out, questions aimed at weeding out potential jurors who

would give unwarranted credence to the testimony of law

enforcement officers are less important where, as in West, the

defendant concedes the validity of the officer’s testimony. Id.

at 7–8. “Considering all of these factors together,” we

concluded that the voir dire gave the defendant sufficient

information about potential law enforcement bias. Id. at 8.

We thus found no abuse of discretion.

Although we could have stopped at this point and

affirmed the conviction, we nonetheless went on to find that

the use of compound questions caused no substantial

prejudice. In addition to the three factors listed above, several

considerations led us to that conclusion. First, the district

court expressly instructed the jury to give no special weight to

the testimony of law enforcement officers. Second, the record

contained “overwhelming” evidence of the defendant’s guilt:

the facts were not only undisputed, but they also clearly

established that the defendant constructively possessed the

gun. Id. at 8. Third, the defendant never alleged that any

specific juror harbored actual bias against him.

Littlejohn argues that several of the “particular

circumstances” that led us to affirm the conviction in West

notwithstanding our concern about the compound questions

are absent here. We agree and conclude that under the

particular circumstances of this case, the district court’s use of

compound questions violated Littlejohn’s Sixth Amendment

right to an impartial jury. 
18

To begin with, unlike in West, Littlejohn expressly asked

the court to question potential jurors about past or present

employment in law enforcement. Specifically, he proposed

the following non-compound question:

Have you or any of your relatives or any close

friends ever worked, in any capacity, for (or

have an application pending to work for) any

type of law enforcement agency, including: the

Metropolitan Police Department, the Federal

Bureau of Investigation, . . . the United States

Park Police, . . . [or] any other federal, state or

local law enforcement agency?

Def.’s Proposed Voir Dire Questions 7, ¶ 19. Indeed,

recognizing the potential for juror bias, the government

proposed a very similar question. See Gov’t’s Proposed Voir

Dire Questions 6, ¶ 11 (“Are you or any of your family or

close friends or household members a law enforcement officer

. . . ?”). The fact that Littlejohn’s proposed question asked not

only about any employment in law enforcement generally, but

also about employment by the U.S. Park Police—the agency

whose officers arrested Littlejohn—is particularly significant

given that in West we made clear that “this would have been a

much closer case” had the defendant requested the court to ask

about past or present employment by the Metropolitan Police

Department, the agency responsible for the arrest in that case.

458 F.3d at 13. 

The district court, however, asked neither question,

requiring instead that jurors answer the compound question

quoted above. See supra pp. 10–11. The defect in that

question is obvious, as a simple hypothetical demonstrates.
19

Suppose one of the prospective jurors was a thirty-year veteran

of the U.S. Park Police. Had the district court asked

Littlejohn’s proposed question, the juror would have had to

answer in the affirmative, giving Littlejohn and the court an

opportunity to explore that potential source of bias. But in

response to the district court’s compound question, the

prospective juror had to keep that information secret unless the

juror, in his or her own opinion, believed that working for the

Park Police would make it impossible to serve impartially.

Yet as we stated in United States v. Edmond and restated in

West, “whether a juror can render a verdict based solely on

evidence adduced in the courtroom should not be adjudged on

that juror’s own assessment of self-righteousness without

something more.” West, 458 F.3d at 11 (internal quotation

marks omitted) (quoting Edmond, 52 F.3d at 1097). And as

West recognizes, such self-evaluation is particularly

troublesome when jurors are asked about the potential bias

caused by their employment history. Even the most

scrupulous juror may not recognize that “lingering loyalty [to

a past employer], friendship of persons still employed there, or

knowledge of agency procedures” may color his or her

judgment. Segal, 534 F.2d at 581.

The circumstances of this case differ from West in other

important respects. First, unlike in West, nothing in the record

indicates that Littlejohn received a list of the present

occupations of prospective jurors—a particularly serious

omission given the likely reluctance of jurors to decide a case

against a current employer.

Second, again unlike in West, where the defendant

conceded the validity of the officer’s testimony, Littlejohn

vigorously challenged the testifying officers’ credibility. The
20

government relied heavily on Officer Adamchik’s testimony

that he saw Littlejohn leaving the left rear bedroom. See supra

pp. 3, 6. Seeking to impeach that testimony, defense counsel

questioned Adamchik about the difference between his

testimony at trial—that he saw Littlejohn leaving the left rear

bedroom at the end of the hall where the gun was found—and

a previous report in which Adamchik wrote that he saw

Littlejohn exiting the bedroom at the “top of the stairs,” i.e.,

the right rear bedroom. Nov. 17, 2004 Trial Tr. at 85, 182–83.

In what the government itself labels Littlejohn’s “strongest

attack on the officers’ credibility,” Appellee’s Br. 39, defense

counsel also questioned Adamchik about his testimony that

Littlejohn’s body position and direction of motion

demonstrated that Littlejohn had just exited the left rear

bedroom—an issue counsel again focused on in her closing.

Nov. 17, 2004 Trial Tr. at 88, 181–82. And as discussed

above, see supra Part III, defense counsel, attempting to

combat Investigator Hurley’s testimony that he found

Littlejohn’s documents in the left rear bedroom,

argued—again using the government’s own words—“that

[Littlejohn] had been framed through the police’s cherrypicking of evidence.” Appellee’s Br. 23. Summarizing this

point in closing, defense counsel argued that “Andrew

Littlejohn was the only one in the house, so the police decided

that that was Andrew Littlejohn’s gun. They have done

everything they can to convince you of that . . . .” Nov. 17,

2004 Trial Tr. at 178. Given these arguments, the jury could

never have convicted Littlejohn without crediting Officer

Adamchik and Investigator Hurley’s testimony. Yet because

of the compound question, neither the district court nor we

have any idea whether this critical credibility assessment may

have been made by jurors whose association with law

enforcement—perhaps even with the U.S. Park Police
21

itself—predisposed them to favor the testimony of the two

officers. 

Third, although we have found the evidence sufficient to

support Littlejohn’s conviction, see supra Part II, that

evidence is hardly “overwhelming,” as it was in West. 458

F.3d at 8. There, not only did the police find the gun in a bag

lying at defendant’s feet, but the defendant confessed that the

bag was his and that he had packed it himself. Id. By

contrast, Littlejohn never admitted ownership of the laundry

basket where the gun was hidden. Indeed, his mother testified

that both the laundry basket and the entire left rear bedroom

belonged to Andrew’s brother Wildred. Although the

government’s evidence revealed that Andrew Littlejohn also

had access to the left rear bedroom, joint access weakens the

normal inference that one possesses everything found in one’s

home. See United States v. Dykes, 406 F.3d 717, 721 (D.C.

Cir. 2005). Further weakening the case against Littlejohn, the

government recovered no fingerprints from the gun and

presented no testimony of anyone who had ever seen

Littlejohn with the weapon. Although jurors could have

drawn reasonable inferences from the evidence to find

Littlejohn guilty, the record hardly compels that result. 

To be sure, some of the circumstances that led us to

conclude that the compound questions in West did not offend

the Sixth Amendment are also present here. For example, as

in West, several non-compound questions touched on law

enforcement issues generally, including whether the

prospective jurors personally knew any of the testifying

officers and whether they had witnessed a crime or been

victimized by one. The district court also asked the

prospective jurors whether they would “be inclined to give
22

greater . . . weight to a police officer’s testimony . . . simply

because he or she is a police officer,” Nov. 16, 2004 Trial Tr.

at 29, and later instructed the jury not to do so, Nov. 18, 2004

Trial Tr. at 26. Certainly these questions and this instruction

reduced the threat of potential bias. None, however, directly

addressed the precise issue raised by Littlejohn (but not by the

defendant in West), namely whether the prospective jurors,

their families, or close friends actually worked for the law

enforcement agency whose officers were to testify at trial—a

question we said in West would have made that “a much closer

case.” 458 F.3d at 13.

Finally, the government points out that Littlejohn failed to

allege that any member of the jury actually harbored bias

against him, emphasizing that West termed this factor

“critical[].” Id. at 8. In West, however, we considered the

defendant’s failure to demonstrate actual bias only after

concluding that the other relevant circumstances—the

defendant’s failure to dispute the officers’ credibility, the

overwhelming evidence of guilt, and the fact that the

defendant had other sources for obtaining the only information

he had requested—demonstrated that the compound questions

caused no prejudice. Id. at 8–9. The circumstances here point

in the opposite direction: police officer credibility lies at the

heart of the case; the evidence against Littlejohn, though

sufficient, is far from overwhelming; and the non-compound

voir dire questions were inadequate to ensure that Littlejohn

had an opportunity to uncover a potentially serious source of

bias—whether any potential juror had ever worked for the

U.S. Park Police. Under these circumstances, Littlejohn’s

failure to show actual bias was hardly “critical.” 
23

Because under the “particular circumstances of this case,”

West, 458 F.3d at 13, the district court’s compound questions

denied Littlejohn “a full and fair opportunity to expose bias or

prejudice on the part of the veniremen,” Orenuga, 430 F.3d at

1163, we vacate the conviction and remand for further

proceedings consistent with this opinion.

So ordered.
SENTELLE, Circuit Judge, concurring: I join without

reservation, and indeed with enthusiasm, the full opinion of the

majority. I write separately only to express my concern with

language from United States v. West, 458 F.3d 1 (D.C. Cir.

2006). As the majority notes, the West decision contains the

statement, in rejecting a defendant’s assertion of violation of his

Sixth Amendment right to an impartial jury, that “Finally, and

critically, West does not allege that any juror who sat on his case

was actually biased against him.” West, 458 F.3d at 8. I do not

take that sentence to establish a requirement that in order to

prove a violation of Sixth Amendment rights by an inadequate

voir dire or other prejudicial error in jury selection, a defendant

must identify an actually biased juror who sat on the case. Such

a hurdle seems to me to be impractical and in most cases

impossible. Absent some unlikely extra-judicial utterance by

such a juror or some extrinsic evidence not extant in most cases,

a defendant could not know, let alone establish the prejudice of

a particular juror.

Indeed, after the entry of a verdict, unless the defendant

makes a request before the jury is discharged, neither he nor

counsel may contact jurors except upon a showing of “good

cause.” D.C. LOCAL CRIM. RULE 24.2(b). Even if defense

counsel timely makes such a request, however, “the Court shall

inform the jury that no juror is required to speak to anyone but

that a juror may do so if the juror wishes.” Id. And even if a

juror chooses to speak to the defendant or his attorney, Federal

Rule of Evidence 606(b) strictly limits what evidence may be

admissible in challenging the verdict’s validity. See F.R.E.

606(b) (limiting post-verdict juror testimony to “(1) whether

extraneous prejudicial information was improperly brought to

the jury’s attention, (2) whether any outside influence was

improperly brought to bear upon any juror, or (3) whether there

was a mistake in entering the verdict onto the verdict form.”).

Although these rules play an important role in preventing juror

harassment, see Tanner v. United States, 483 U.S. 107, 119-20
2

(1987) (discussing juror harassment as one of the “[s]ubstantial

policy considerations” justifying restrictions on post-verdict

testimony), they make demonstrating actual bias nigh

impossible. Requiring proof of actual bias in every case,

moreover, would place the defendant in a Catch-22 situation.

The Supreme Court justifies the strict limitations on post-verdict

juror testimony on the grounds that voir dire ensures “[t]he

suitability of an individual for the responsibility of jury service.”

Id. at 127. Those rules, in other words, assume proper voir dire.

Yet if proof of actual bias were required in all circumstances,

those same rules would prevent a defendant from successfully

challenging a defective voir dire.

I do not believe that the extracted sentence from the West

opinion was intended to establish that a juror must make such a

showing of actually biased membership on the jury in order to

prevail on a Sixth Amendment claim relating to jury selection.

As the majority notes, the sentence follows a discussion of the

compelling reasons why the compound questions in the West

jury selection did not constitute prejudicial violations of the

defendant’s Sixth Amendment rights. I therefore believe that

the sentence only intended to emphasize that in addition to the

failure of his generalized claim, the appellant had not raised any

claim of specific juror bias. This interpretation of the sentence

is supported by the fact that the West court relied on United

States v. Haldeman, 559 F.2d 31, 70-71 (D.C. Cir. 1976). The

cited portion of Haldeman follows a thorough and laudatory

discussion of the voir dire procedure followed in that case. That

discussion concluded with the observation that:

Indeed, no one who reads this transcript can fail to be

impressed with the patience, attention, and acumen with

which the judge probed the opinions of the veniremen so as

to remove those who harbored any prejudice or

preconception.
3

Id. at 70. The section relied upon by the West court immediately

follows and states:

 Our conclusion that the voir dire was adequate does not

end our review of the jury selection. As is our duty, we

have reviewed the record to ascertain for ourselves whether

appellants were tried by an unbiased jury capable of basing

its verdict solely on the evidence introduced at trial.

Appellants appear to concede this ultimate conclusion, for

they never suggest that the jury was actually prejudiced

against them or that its verdict rested on anything other than

the overwhelming evidence of their guilt. On the basis of

our own review, we have no doubt that the jury was

impartial. Accordingly, we find no reversible error

associated with the impaneling of the jury.

Id. at 70-71. Therefore, I think it plain that neither the West nor

the Haldeman opinion was holding that a showing of actual bias

by a juror or jurors is necessary to the establishment of a Sixth

Amendment violation, but only that such a showing would be

sufficient. In the absence of such a showing, the defendant must

show some other evidence of bias in the jury selection or

composition. The defendants in Haldeman and West could not

meet that need to show other evidence. As well established in

the majority opinion, the appellant before us has.