United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2012 Decided October 5, 2012

No. 10-3114

UNITED STATES OF AMERICA,

APPELLEE

v.

ABDUL KASSIM KANU, ALSO KNOWN AS ACE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00356-2)

Charles J. Soschin, appointed by the court, argued the

cause for appellant. With him on the brief was Joseph R. Conte.

Mark Aziz, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Ronald C. Machen Jr.,

U.S. Attorney, and Roy W. McLeese III, John P. Mannarino,

Frederick W. Yette, and April E. Fearnley, Assistant U.S.

Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, entered

an appearance.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: Upon being retried after a mistrial

in his criminal case, appellant had requested that two

stipulations entered into during his first trial not be enforced. 

The issue on appeal is whether the district court abused its

discretion in denying that request. The stipulations related

solely to whether certain phone records were authentic

documents and whether they would be admitted into evidence. 

By their terms the two stipulations referred to an admission at

“this trial” but were silent about another trial on the same

charges in the indictment, and consequently were ambiguous.

Although this court has previously articulated a general rule

on the binding nature of stipulations, it has not addressed the

issue in the context of a criminal prosecution where the Sixth

Amendment constitutional right to confront witnesses is

implicated. Appellant does not contend the general rule should

not apply to criminal prosecutions, only that the district court

erred in applying it. We join the other circuits in applying the

general rule on stipulations to criminal prosecutions, and we find

no abuse of discretion by the district court in this case. The

district court could reasonably view the stipulations as

affirmative evidentiary admissions in the prosecution of the

indicted counts. Appellant fails to demonstrate manifest

injustice in being held to the stipulations; he had a full

opportunity to present evidence, call witnesses, and argue to the

jury that the phone records were inconsistent and thus inaccurate

and due little weight – an argument distinct from the phone

records’ authenticity, which he never challenged. Moreover, the

authenticity of the records was a peripheral issue at his trial and

any error in admitting the stipulations was harmless. 

Accordingly, we affirm.
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I.

Appellant was indicted in 2009 on two counts, for bank

theft and aiding and abetting in violation of 18 U.S.C. §§

2113(b) & 2, and for bank theft in violation of 18 U.S.C.

§ 2113(c). The government presented evidence that appellant

and three others participated in a staged robbery of an armored

truck around midday on May 22, 2008 near 19th and M or L

Streets in northwest Washington, D.C. The robbers got away

with approximately $210,000, with appellant receiving $40,000. 

Among the witnesses was Eric Wilson, who drove the armored

truck for work and was a co-confederate in the robbery. Wilson

testified about appellant’s involvement in planning and

executing the robbery and about how Wilson’s mother Regina

drove appellant and Anthony Holman (a/k/a Nino) to the scene. 

Kyndal Green, a former classmate of Holman’s who came to

Washington, D.C. on May 21, 2008 to visit appellant and Siera

Green, testified that appellant spent the evening prior to the

robbery at a hotel with her and he brought bags of money to the

hotel the next day. The government introduced phone records

to corroborate Kyndal Green’s testimony that she had received

a phone call around noon from appellant after the robbery. 

Appellant did not own a cell phone at the time, but phone

records indicated he used a phone belonging to one of Regina

Wilson McCollum’s sons (Chaz McCollum) that she had with

her when she was driving appellant and Holman and following

the armored truck. Kyndal Green testified that she did not know

the Wilsons, suggesting that only appellant would have had

reason to call her from that phone line. 

Upon retrial, the government called two additional

witnesses. Wilson’s mother, Regina, testified she drove

appellant and Holman around during the robbery itself. Siera

Green, at whose apartment Kyndal Green received a phone call

from appellant on the day of the robbery, testified that she
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thereafter drove Kyndal to the hotel room where they found

duffle bags and about 20 packs of bills wrapped with papers on

which was printed “$2,000" as well as more loose money, and

that after appellant and Holman arrived, the four of them were

together for the rest of the day. 

During the first trial, the prosecution and defense agreed to

two stipulations regarding the phone records. Stipulation 1 read:

“The parties agree that the attachment is a true and accurate

copy of phone records for phone number (240) 286-6931

obtained in the name of Danielle McCollum for the use of Chaz

McCollum and that these records may be admitted as evidence

in this trial.” Stipulation 2 read: “The parties agree that the

attachment is a true and accurate copy of phone records for

phone number (973) 409-1391 obtained in the name of Kyndal

Green and that these records may be admitted as evidence in this

trial.” After the testimony regarding the phone records, defense

counsel uncovered an inconsistency in the records – they did not

match (e.g., McCollum’s record shows an outbound call to

Kyndal Green at 12:09 PM on May 22, but Green’s phone

record does not display that incoming call). During closing

arguments, both the prosecutor and defense counsel discussed

the inconsistencies in the phone records. The jury deadlocked,

and the district court declared a mistrial.

The retrial began ten days later, on September 17, 2010. 

Prior to opening statements to the jury, the prosecutor alerted the

district court that a dispute may arise as to whether to admit the

stipulations from the first trial. The district court stated that it

was inclined to admit them as “prudent and efficient.” Tr. Sept.

17, 2010 at 105. Defense counsel requested they not be

enforced, explaining that he had not realized when he entered

the stipulations that phone conversations in those records were

missing and he had not had Kyndal Green’s name until

approximately three days before the first trial. Upon further
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consideration, the district court ruled that the stipulations would

be enforced because nothing in the record indicated any type of

injustice, much less manifest injustice, to appellant from being

held to what he had stipulated. 

A jury found appellant guilty on both counts, and the

district court sentenced him to concurrent terms of 48 months’

imprisonment on each count, 36 months supervised release, and

$100 assessments on each count, in addition to $40,000 in

restitution. Appellant appeals. 

II.

Appellant contends the district court erred in denying his

request not to enforce the two stipulations at his retrial following

the mistrial at the first trial. He maintains the stipulations were

expressly limited to use only during his first trial, and he

suffered manifest injustice as a result of their use because the

records were inaccurate and he was prevented from crossexamining phone company witnesses about the inconsistencies

between the phone records. This court reviews the district

court’s evidentiary ruling for abuse of discretion. See United

States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir. 2004); see also

Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995).

Stipulations, like admissions in the pleadings, are generally

binding on the parties and the court. Nat’l Ass’n of Life

Underwriters, Inc. v. Comm’r of Internal Revenue, 30 F.3d

1526, 1530 (D.C. Cir. 1994) (quoting Am. Title Ins. Co. v.

Lacelaw Corp., 861 F.2d. 224, 226 (9th Cir. 1988)). They, “like

other contracts, must be interpreted in light of the circumstances

under which the agreement was made.” Nat’l Audubon Soc’y,

Inc. v. Watt, 678 F.2d 299, 307 (D.C. Cir. 1982). Stipulations

entered into by the parties “in the course of legal proceedings

‘are not as irrevocable as other contracts,’” and the “[t]rial
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court[] may, in the exercise of sound judicial discretion and in

furtherance of justice, relieve parties from stipulations into

which they have entered. Relief should be granted if the balance

of equities favors the moving party.” Id. at 311 n.28 (internal

citations omitted). “[W]herever justice requires a court may set

aside a stipulation. . . . ‘[I]t has inherent power, in the control of

its own action, to relieve against them when made improvidently

or when for any cause their enforcement would work injustice.’” 

Laughlin v. Berens, 118 F.2d 193, 196 (D.C. Cir. 1940) (citation

omitted). 

Other circuits have expanded on this analysis, including in

more recent cases. For example, in Wheeler v. John Deere Co.,

935 F.2d 1090 (10th Cir. 1991), the Tenth Circuit stated that “[a]

stipulation is an admission which ‘cannot be disregarded or set

aside at will,’” but, as a matter of the district court’s discretion,

“may be withdrawn whenever necessary to prevent manifest

injustice,” id. at 1097–98 (citations omitted). “District courts

consequently are vested with broad discretion in determining

whether to hold a party to a stipulation . . . .” Id. at 1098.

Further, “[w]hen a stipulation is limited expressly to a single

trial and phrased in terms of conclusory, rather than evidentiary,

facts, district courts may on retrial free a party from the

stipulation.” Id. In much the same vein other circuits, such as

the First Circuit, have stated that a party may be relieved of a

stipulation if “good reason” exists and such relief does “not

unfairly prejudice the opposing party or the interests of justice.”

Am. Honda Motor Co., Inc. v. Richard Lundgren, Inc., 314 F.3d

17, 21 (1st Cir. 2002).

Additional cases illustrate the broad scope of the district

court’s discretion in enforcing stipulations. In Waldorf v. Shuta,

142 F.3d 601 (3d Cir. 1998), the Third Circuit observed that

“[i]n general, courts encourage parties to enter into stipulations

to promote judicial economy by narrowing the issues in dispute
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during litigation.” Id. at 617. Consistent with this purpose, the

court instructed that “[g]enerally, a stipulation entered into prior

to a trial remains binding during subsequent proceedings

between the parties,” noting “a well-recognized rule of law that

valid stipulations entered into freely and fairly, and approved by

the court, should not be lightly set aside.” Id. (citation omitted). 

Although “conclusory stipulations are entitled to less deference

than evidentiary ones,” id. at 617, the “overriding factor” is “the

parties’ intention to limit or not limit a stipulation to only one

proceeding.” Id. So, irrespective of the nature of the

stipulation (e.g., it is conclusory), “a stipulation does not

continue to bind the parties if they expressly limited it to the

first proceeding or if the parties intended the stipulation to apply

only at the first trial.” Id. at 616. In Waldorf, the court found no

abuse of discretion in enforcing a stipulation that was “an openended concession of liability” without limitation to the

“ensuing” trial. Id. at 617.

In Hunt v. Marchetti, 824 F.2d 916 (11th Cir. 1987), by

contrast, a stipulation was not enforced at the second trial. This

was a libel action brought by Hunt after publication of an article

stating that the CIA would implicate him in the assassination of

President Kennedy. Counsel for the newspaper publisher stated

in opening argument to the jury that it would not attempt to

prove that Hunt was in Dallas, Texas on the day of the

assassination. The district court explained to the jury that “for

the purposes of this trial” the defendant conceded that fact. Id.

at 917. Defense counsel responded, “So stipulated.” At trial,

the defendant relied on the stipulation to prevent Hunt from

introducing evidence regarding where he was on the date of the

assassination. A judgment for Hunt was reversed in part on

appeal (Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983)),

and prior to the new trial the same district court judge ruled that

the oral stipulation applied only to the first trial, given the intent

of the parties. Id. On appeal from a judgment for the
8

defendant, the Eleventh Circuit found no abuse of discretion in

not enforcing the stipulation, concluding the defense statements

to the jury “are more accurately viewed as a stipulation that the

question of Hunt’s alleged involvement in the assassination

would not be contested at trial. They thus served merely to

narrow the factual issues in dispute,” id. at 917–18, and were

not an evidentiary stipulation. See id. at 918 (internal citations

omitted). Even had it been “willing to second-guess the trial

judge’s interpretation of the stipulation,” the court observed

there still would not have been an abuse of discretion because

defense counsel’s statements had a similar effect at trial as a

Rule 16(c) stipulation for a pre-trial order, which, although

modifiable “‘only to prevent manifest injustice,’ . . . need not be

‘rigidly and pointlessly adhered to at trial.’” Id. (quoting 6 C.

Wright and A. Miller, FEDERAL PRACTICE AND PROCEDURE

§ 1527). 

 The general rule on stipulations has long been applied by

other circuits in criminal prosecutions as well. See, e.g., United

States v. Kiser, 948 F.2d 418, 425 (8th Cir. 1991); cf. United

States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986), cert.

denied, 479 U.S. 1104 (1987) (citing United States v. Campbell,

453 F.2d 447, 451 (10th Cir. 1972)). Indeed, United States v.

Wingate, 128 F.3d 1157, 1160 (7th Cir. 1997), is similar to the

instant case as it also involved a retrial of a criminal defendant

after the jury deadlocked and a mistrial was declared. Prior to

the first trial the parties in Wingate had entered into a written

stipulation regarding the contents of an INS file and the

stipulation was admitted into evidence. Upon retrial, with new

counsel, the defendant objected when the prosecutor sought to

admit the stipulation into evidence on the ground it denied him

a right to confront witnesses under the Sixth Amendment to the

Constitution. Post-trial the defendant filed an affidavit stating

initial defense counsel had entered the stipulation over this

objection. The Seventh Circuit upheld the district court’s
9

decision not to release the defendant from his stipulation. In

rejecting the argument that the general rule on stipulations did

not apply in criminal cases involving constitutional rights, the

court observed “there appears to be no support for that

proposition.” Id. Noting its own precedent applying the general

rule in criminal cases, the court explained: “District courts have

broad discretion to manage trials, and this includes holding

defendants to their stipulations, even regarding essential

elements of proof, in the absence of manifest injustice,

inadvertence or a mistake as to the law or facts of the case.” Id.

at 1161 (internal citations omitted). The court also rejected the

manifest injustice claim, noting the defendant did not argue he

had made a mistake as to the law or the facts of the case. In

responding to the defendant’s argument that he inadvertently

assumed the subject of the INS file would be called as a

witness, and so did not seek to set aside the stipulation, the court

noted that the record of the retrial clearly showed the subject

would not be a witness; moreover, the government had relied on

the stipulation in preparing its case. See id. Holding that “[t]he

district court did not clearly or unmistakably abuse its discretion

in admitting the stipulation,” the court noted further that any

error in admitting the stipulation would have been harmless, and

that even were the stipulation cumulative, its effect on the trial

was “negligible” because it did not preclude the defendant from

attempting to show the inaccuracy of the INS file. See id. 

 

The Seventh Circuit’s analysis in Wingate is in harmony

with this circuit’s precedent in civil cases, and appellant does

not suggest the general rule on stipulations should not apply to

criminal prosecutions. So understood, we reach a similar

conclusion in the instant case as that reached in Wingate. 

A.

As an initial matter, we note that the government’s

suggestion that appellant may not appeal the district court’s
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enforcement of the second stipulation (Kyndal Green’s phone

records), which only he sought to have introduced at retrial, is

not well taken. “[U]nder the invited error doctrine [] a party

may not complain on appeal of errors that he himself invited or

provoked the district court to commit.” United States v. Wells,

519 U.S. 482, 488 (1997) (internal quotation marks, citation,

and alteration omitted); see also United States v. Lawrence, 662

F.3d 551, 557 (D.C. Cir. 2011). Although appellant sought

admission of Green’s phone record, relying on the stipulation,

he did so only after the prosecutor had successfully admitted

McCollum’s record. In order to demonstrate inconsistencies in

the records, appellant was thus forced to seek admission of the

Green record. Before the retrial commenced, appellant had

voiced his objections to the district court regarding enforcement

of the stipulations upon retrial.

Applying the invited error doctrine in these circumstances

would create a Catch-22 — a defendant would have to choose

between presenting a defense, based on the evidence of the

inconsistencies in the phone records (which necessitated

introducing the second record because the prosecutor had not),

or hoping for reversal on appeal of the district court’s denial of

his non-enforcement request. This is neither the role nor the

nature of induced error addressed by the doctrine. The error of

which appellant complains is the enforcement of the stipulations

at all, and he clearly did not induce the district court to do so.

B.

Regarding enforcement, the first clause of each stipulation 

— stating the records are true and accurate copies of phone

records for the respective phone numbers — may properly be

regarded as a factual, evidentiary stipulation, and not limited in

time. Each is a formal, written stipulation of the parties that

such evidence need not be presented through live testimony at

trial. As such the stipulations would not appear to be
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conclusory in nature, see Hunt, 824 F.2d at 918, and appellant

does not suggest they are. Each stipulation also contained in a

separate clause the phrase “these records may be admitted as

evidence in this trial.” This phrase is ambiguous: although, as

appellant emphasizes, it is an express limitation, it is silent as to

other trials, including a retrial of the same charges in the

indictment. In the exercise of the district court’s discretion, see

Wingate, 128 F.3d at 1160; Nat’l Audubon, 678 F.2d at 311

n.28, the ambiguity could reasonably be resolved by viewing

the stipulations to reflect an agreement “co-extensive with the

cause,” Vattier v. Hinde, 32 U.S. 252, 266 (1833), of the trial on

the two-count indictment filed against appellant. 

Appellant’s reliance on Hunt, 824 F.2d at 917–18, is to

little avail. Although the trial judge’s explanation of the

defense stipulation during opening argument to the jury

contained a similar “this trial” limitation, the Eleventh Circuit

viewed the oral statements to be “more accurately viewed” as

not contesting (as distinct from affirmatively admitting) that

Hunt was not in Dallas on the day of the assassination. Id. at

918. By contrast, the two stipulations in appellant’s case were

not similarly “made for purposes of this trial” but with regard to

the agreed admission of evidence. Thus, this case is more

analogous to the situation in Wheeler, 935 F.2d at 1099, where

the Tenth Circuit explained that the defendant,“[u]nlike the

defendant in Hunt, . . . made an affirmative, formal, factual

statement that it was feasible to design a safer product and

reduced the statement to writing.” “Such factual statements are

judicial admissions normally binding on a party.” Id.

Even if the “this trial” clause in the two stipulations in

appellant’s case would bar enforcement of them in a different

case, involving different criminal charges or a civil complaint,

enforcing the stipulations upon retrial of the two counts in the

indictment was a permissible alternative available to the district
12

court, cf. Kickapoo Tribe, 43 F.3d at 1497 (citing Maurice

Rosenberg, Judicial Discretion of the Trial Court: Viewed from

Above, 22 Syracuse L. Rev. 635 (1971)). Not only was the “this

trial” clause ambiguous, appellant’s objection is not about the

authenticity of the phone records; he does not dispute that they

are, in fact, accurate copies of the records (i.e., not forgeries). 

Instead, he asserts that the records are inconsistent and thus

inaccurate. That argument presents a question of the weight

that should be given to the stipulations, a question for the jury

to consider. See, e.g., Wingate, 128 F.3d at 1161. 

C.

Appellant’s claim that use of the stipulations resulted in

manifest injustice is also unpersuasive. The four factors courts

have viewed as relevant do not weigh in his favor. Those factors

are: (1) the effect of the stipulation the party seeking to

withdraw the stipulation, (2) the effect on other parties, (3) the

occurrence of intervening events since the parties agreed to the

stipulations, and (4) whether evidence contrary to the stipulation

is substantial. See Waldorf, 142 F.3d at 617–18 (collecting

cases). 

Appellant maintains that had the government been required

to have phone company employees testify to establish the

authenticity of the records, he could have cross-examined them

regarding the inconsistencies. But, appellant never challenged

the records’ authenticity and, as the government points out,

“nothing prevented him from calling [phone company

employees] as defense witnesses.” Appellee’s Br. at 20. 

Appellant also had the opportunity to cross-examine Kyndal

Green regarding the phone records, and to present closing

argument on the topic of the inconsistencies. Thus, the effect of

enforcement of the stipulations on appellant was “negligible.” 

Wingate, 128 F.3d at 1161. Second, because appellant raised

his objection on the first day of the retrial and the district court
13

had indicated postponement of trial was not an option given its

schedule, see Tr. Sept. 7, 2010 at 5–6, the government’s time to

secure additional witnesses was limited. See Caban Hernandez

v. Philip Morris USA, Inc., 486 F.3d 1, 6 (1st Cir. 2007). 

Appellant’s best hope is the third factor, in view of defense

counsel’s post-stipulation discovery of inconsistencies in the

phone records. To the extent appellant maintains he never

would have stipulated to inaccurate records, the stipulations are

to the authenticity of the phone records as true and accurate

copies, a fact he has never challenged. Defense counsel did not

claim not to have had the phone records for comparison, only

that he had not received Kyndal Green’s name until just before

trial. Nor did he seek to withdraw the stipulations upon his

discovery but instead brought the inconsistencies to the jury’s

attention, indicating he recognized the distinction between

accuracy and the weight a jury should accord the phone records. 

Finally, the purported inconsistencies did not necessarily render

the records inauthentic; the records were maintained by two

different companies that may record phone calls differently, see

Gov’t Exhibits 9 and 52. Accord Am. Honda Motor Co., Inc.,

314 F.3d at 21–22; Waldorf, 142 F.3d at 618. 

Moreover, any error in admitting the stipulations into

evidence was harmless. See In re Sealed Case, 352 F.3d 409,

411–12 (D.C. Cir. 2003). The authenticity of the phone records

was a limited and non-central issue at appellant’s trial, and

appellant fails to show how the admission upon retrial had “a

substantial and injurious effect or influence in determining the

jury’s” assessment of his culpability. See United States v. King,

254 F.3d 1098, 1101 (D.C. Cir. 2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)); Kiser, 948 F.2d at

425. At the retrial the government called two additional

witnesses (Regina Wilson McCollum and Siera Green), and its

evidence of appellant’s guilt was overwhelming, given the coconfederates’ testimony by Wilson and his mother Regina, as
14

bolstered by Kyndal and Siera Greens’ testimony regarding, for

example, appellant’s arrival at the hotel room with bags filled

with money wrapped in bank notes, and by the surveillance

video showing Regina Wilson McCollum’s vehicle following

behind the armored truck. See United States v. Moore, 651 F.3d

30, 76 (D.C. Cir. 2011); United States v. Palmera Pineda, 592

F.3d 199, 200 (D.C. Cir. 2010). 

Accordingly, we hold that the district court did not abuse

its discretion in denying appellant’s request not to enforce the

stipulations on the authenticity of the phone records at his

retrial, and we affirm the judgment of conviction.