Th e Ho no ra ble J. Clif fo rd Wal la c e , U nit e d St a te s Co ur t of Ap pe a ls f

or the Ni nth

Cir c uit , 1 sitti ngby desig nation. 06-5059-c r USA v. Crawf

ord 1 2 UN ITED STA TES C OU RT OF AP P EA LS 3 4 F OR THE SE CO ND CI RC UI T 5 6 August Term, 2007 7 8 (Argued May

14, 2008 Dec ided: J uly 17, 2008) 9 10 Docke t No. 06-5059-c r 11 12 - - - - - - - - - - - - - - - - - - - - - - - - 13 14 UNI TED STATES OF AMERI CA, 15 16 Appellee , 17 18 - v.- 19 20 EUGENE CRAW FORD, 21 22 De fe nd ant/Ap pe lla nt. 23 24 - - - - - - - - - - - - - - - - - - - - - - - - 25 26 B e fo re : SO TO MA YO R, WE SL EYand WAL L AC E, Cir c uit

Judg e s. 1 27 28 Appea l from a judg ment of convic tion entere d October 20, 2006 in the United States 29 District Court for the Ea stern District of N ew Yor k (Korma n, J .). We hold that, under the 30 circ umstances of this case, the district c ourt abused its discre tion when, af ter jury deliberations 31 beg an, it reope ned the r ecor d su a s po nteand per

mitted the gove rnment to introduce ne w 32 e vid e nc e . We va c ate and re mand the c a se fo r r e tr ia l. 33 34 N I COL E B OE C K MANN (Susan Corker y , on the brief

), 35 As sis tant Unit e d St a te s A tto rn e y s, fo r R os ly nn R.2 1 Mauskopf, United States Attorne y , Easter n District 2 of Ne w York, B rookly n, New Y ork, for

Appellee

. 3 4 J ER EMY G. E P ST E IN (Andre w C. Ag or and Walter 5 O. R u s s el l , o nth e b ri ef

), S h ea rm an & S t er l i n g, 6 L L P, N e w Y or k, Ne w Y or

k, fo r A pp e lla nt. 7 8 J . CL I FF ORD WAL L ACE, Circuit J udg e: 9 10 Appellant Eug ene Cra wford c halleng es his conviction, af ter a jury trial in the United 11 States District Court for the Ea stern District of N ew Yor k (Korma n, J .), of one count of 12 possession of a fir ear m after havingbeen c onvicted of a felony , in violation of 18 U.S.C. § 13 922(g )(1) . He a

rgues the district cour

t abused its discretion whe n it reopene d the g overnme nt’s 14 case and admitted additional evide nce a fter the jury had begun deliberations. W e agree , and 15 va c ate and

re mand fo r r e tr ia l. 16 BACK GR OUND 17 On the nig ht of September 18, 2004, Cra wford w as ar

rested by a team of offic ers wor

king 18 for the T arg eted Of fende rs Prog ram of the New Y ork State Division of Parole ( TOP). The 19 of

fi c e rs we re vis iti ngthe ir

a ssi g ne d p aro le e s’ re sid e nc e s to ve ri fy c omp lia nc e wi th t he pa ro le e s’ 20 mandated c urfe ws. Whil e the of fice rs wer e stopped at a traf fic lig ht in an unmarke d police 21 vehicle, one of them saw Cra wford w alkingon the stree t and re cog nized him as a parolee who 22 repor

ted to another

TOP office r, Off

icer Taylor. The of

fice rs stopped Craw ford a nd he explained 23 to them that Taylor knew he was out past his curf ew. One office r conta cted Ta ylor and lea

rned 24 that Cr awf

or d d id n ot h ave pe rm iss ion to b e out a ft e r h ours . 25 Th e of

fi c e rs the n b e g an to se arc h Cr awf or d, and in h is p oc ke t th e y

dis c ov e re d a

tin 26 containinga small amount of mar ijuana. The office rs place d Crawf ord under arr est for3 1 possessing ma

rijuana a nd violating his cur few . At that point, one office r beg an to sea rch a black 2 g y m bagthat Crawf

ord had w ith him. That searc h was interr upted, howeve r, whe n Crawf ord 3 beg an to flee and the se arc hing of fice r droppe d the bagto chase afte r him. The bagwas picke d 4 up by

another office r and w as later

sear ched when the of

fice rs ar rived at the police pre cinct 5 station. The sea

rch r evea led a .45 c aliber se mi-automatic pistol and a box containing f ifteen 6 rounds of ammuniti on. 7 Prior to trial, and pursua nt to Fede ral Rule of Criminal Proce dure 16( a)( 1)(G) , the 8 g overnme nt notified Crawfor d’s counse l that it int ended to c all Special Ag ent Mulham of the 9 Bur eau of

Alcohol, Tobac co, F irea

rms and Explosi ves (AT F) to testify at the trial a s an expert 10 witness on the movement of f irea rms in interstate commer ce. I n a letter dated De cembe r 6, 2005, 11 the g overnme nt wrote, “ Special Ag ent Mulham has dete rmined that the re cover ed fire arm a nd 12 ammunition related to the a bove-r efe renc ed matter , wer e manuf actur ed outside the State of N ew 13 York, a

nd there fore , have move d in interstate commer ce. Acopy of the tra ce r eport for

the 14 firea

rm is attache d.” 15 At trial, Mulham provided e x pert testimony about the manuf

actur er of the fire arm, whic h 16 was located in Spain, and the importer, which was loc ated in Ne w J erse y . This testimony was 17 c or

ro bo rate d b y

the fi re arm

its e lf , w hic h w a s e ng ra

ve d w iththe wo rd s “ ma de in S pa in, RSA 18 Ind

us tr ie s, Oc e an, NJ.” Ho we ve r, the g ov e rnme nt d id n ot m e nti on or int ro du c e a tr a c e re po rt

to 19 demonstrate the chain of leg al custody

for the w eapon. Cra

wford’ s attorney

cross-e x amined 20 Mulham and aske d, 21 Q. Do you have a ny indication as to who [the gun] was sold to? 22 A. I

have ne ver se en the tra ce on this we apon, so I wouldn’t know. 23 Q. Well, let me ask y ou something, sir, did you ever do a tra ce on this we apon?4 1 A. No , I

did no t. 2 Q. Who did? 3 A. I

don’t know. May

be the c ase a g ent on the ca se, sir. I didn’t though. 4 5 The g overnme nt did not call any other witnesse s to discuss or lay a foundation for the tra ce r eport 6 or to explain it s signific ance . 7 Cr awf

or d te sti fi e d in

the de fe ns e c a se . H e state d th a t he wa s a rr e ste d f or vio latin g his 8 curf

ew, but denie d resisting arr est. He te stified that at his arr est the off icer s sear ched his ba g and 9 his pe rs on

and fo un d n oth ing . H e de nie d p os se ssi nga g un or mari jua na . In c los ingargume nt, 10 his c ouns e l e mph a size d th at th e g un wa s n ot f ound a t th e sc e ne of

the arr e st, that no fi ng e rp ri nts 11 wer e take n to match the gun to Crawfor d, and that no testimony was pre sented c oncer

ning a trac e 12 repor

t. He stated, 13 Iam g oing to a sk y ou one other question that may

have be en lost on an ATF ag ent. You 14 may

ask this question since we a ll know he told us about reg istering and eve ry thing e lse, 15 about how beingable to tra ce[] the weapon a nd ever y thing e lse, did he eve r do any trac e 16 that indicated this wea pon came by

way of a r eg istry

into New Yor

k State? We all know . 17 . . by

just looki ng at the we apon that it comes fr om Spain. No, the question was rather 18 pointed. Did y ou do any thing to tra ce that weapon? The answer was no. 19 20 The g overnme nt did not object and did not addre ss this poi nt in its rebuttal a rgument. 21 Duringthe sec ond day of deliber ations, the jury sent a note to the district judg e asking 22 two questions, one of whic h was “ why wasn’t the gun trac ed to the orig inal owner ? ” The 23 g overnme nt told the court that it had a propose d instruction conce rningthat issue, but the court 24 reje cted that sug g estion. Upon lear ning that the g overnme nt had provided a copy of the tra ce 25 repor

t to defense counsel be fore trial, the cour t stated, “I

have the authority

to let them reope n the 26 case . You know, we ’re not playing g ames he re, if the evidenc e is otherwise admissible. Idon’t 27 even know

how y ou’re hurt.”5 1 In response to the court’s sug g estion that it reopen the c ase, the g overnme nt offer ed the 2 testimony

of ATF Special Ag ent Eric Mur ray , who had c onducted the tr ace repor t on the g un that 3 was a lleg edly

rec overe d from Craw ford’ s bag . Prior to that time, the gove rnment had not 4 identified Murra

y as a pote ntial witness. Murray was the c ase a g ent and wa s prese nt during the 5 trial. The c ourt ac cepte d the proff er a nd ruled that, instead of

admitting the tra ce r eport, whic h 6 Crawf

ord’s c ounsel had c ontended wa s inadmissibl e, it would allow Murra y to testify that he had 7 c on du c te d th e tr a c e and that th e re po rt

tr a c e d th e g un

ba c k to the la st l e g iti mate purc ha se r, Ca lvi n 8 Smit h, who purc hased the g un in Maryland. 9 Crawf

ord’s c ounsel objecte d to reope ning the case , but the court ove rruled his objec tion 10 re a so nin gthat, b e c a us e the tr a c e re po rt

did no t tr a c e ba c k to Cr awf

or d, it w a s n ot p re

jud ic ia l to 11 him . Cr awf

or d’ s c ouns e l in sis te d it

wa s p re jud ic ia l, e xpla ini ngthat “ it i nd ic a te s th a t th e re wa s a 12 trac e done . . . . B eca use there was a dditional information that indicated that they had done what 13 they

wer e supposed to do and I ’m takingthe position that they had not done what they

wer e 14 supposed to do.” The court re jected this ar g ument, observingthat Crawf ord’s c ounsel had stated 15 ear lier that he a lway s assumed that a tra ce r eport wa s g oing to be put into evidence, so the 16 g ov e rnme nt’ s f

a ilure to p ut i t into e vid e nc e and su bs e qu e nt r e op e nin g of

the c a se to d o s o c ou ld 17 no t be pr e

jud ic ia l. 18 Whil e dis c us sin g ho w t o g o a bo ut r e op e nin g the c a se , Cr awf or d’ s c ouns e l c on tin

ue d to 19 object, ca lling it a “de vastatingsituation,” but the court re sponded that, “Y ou’ve le ft an 20 err oneous impression with the jury . They picked up on it and I

don’t know why

it can’t be 21 corr ecte d. It’s one thing to put the gove rnment to its burden of pr oof. It’s another to play g ames 22 he re .” Ov e r C ra wf or d’ s o bje c tio n, Murr ay

wa s a llo we d to te sti fy

and Cr awf or d’ s c ouns e l c ro ss-6 1 e xami ne d h im. B e fo re the pr oc e e din g s b e g an, the g ov e rnme nt c lari fi e d th a t Murr ay wa s o nly to 2 testify

about the question aske d in the jury ’s note. 3 The jury

enter ed the c ourtroom and the c ourt instructed: 4 L adies a

nd g entlemen, you asked two que stions. The first y ou wanted to have the Ta ylor 5 testimony

about beinglenient with Crawf ord cur few . And the par

ties ag ree that Taylor 6 did not give a ny such testimony . And then the se cond question is why wasn’t the gun 7 trac ed to the orig inal owner ? ATF Ag ent Mulham was a sked whe ther he had tra ced the 8 g un to the orig inal owner . He sa id that he did not. Be cause y ou’ve a sked the que stion, 9 I ’m

g oin g to r e op e n th e c a se to a llo w the g ov e rnme nt t o p ut i n e vid e nc e wi th r e sp e c t to 10 the issue that you’ve r aised in your note. 11 12 The c ourt then per mitted Murray

to testify about the tra ce r eport. He stated that he did a 13 trac e on the f

irea rm conne cted with Craw ford’ s case prior to trial, that the tra ce tr acks the leg al 14 chang e of ha

nds of a f irea rm, that the trac e done on the firea rm in question trace d it back to an 15 individual named Calvin Smi th, that the g un was imported by RSA Enterprises in Oce an, Ne w 16 J erse y

and sold to Smi th in 1996 by Manche ster Shooter Supply , Inc., in Mary land, and that the 17 sa le to S mith w a s th e la st l e g a l c ha ng e -o f- ha nd s f or the fi re arm . 18 Crawf

ord’s c ounsel cross- examined Murray , attempting to unde rmine Murra y ’s per sonal 19 knowledg e of the acc urac y of the tra ce r eport, pointing out that the last leg al owner of the fir ear

m 20 was ne ver c ontacted r eg ardingthe gun, and conf irming that Murray

was ne ver a sked to testify 21 d

uri n g th e t ri al an d

wa s o n l y as k edt o t es t i fy

ab o u tt en m i nu t es p ri o r t o th e h ea ri n g. 22 T h e n , o nr e d i r e c t , th e g o v e r n m e n te l i c i t e d

th e f o l l o w i n g t e s t i m o n y: 23 Q. Sir, as the ca se ag ent assig ned, ar e you familiar with the mate rials in the g overnme nt’s 24 possession on this case? 25 A. Ye s, Iam. 26 Q. And ar e you familiar with whe ther or not the doc ument, the trac e re port was pr ovided 27 t o th e d e f e n s e i nth i s c a s e p r i o r

t o tr i a l ? 28 A. Ye s.7 1 Q. An d w a s th at do c ume nt p ro vid e d to [Cra wf or d’ s c ouns e l] and

Mr . Cr awf

or d p ri or to 2 the c omm e nc e me nt o f t his tr ia l? 3 A. Ye s, it w a s. 4 Q. Thank you. 5 6 On re -cr oss, Crawfor d’s counse l confirmed that Mulham had not done the tra ce r eport but 7 that Mu lha

m ha d s ig ne d th e a ff

ida vit fo r t he c omp la int . T he jur

y wa s th e n d ism iss e d to re sume 8 its de lib e ratio ns . 9 Crawf

ord wa s found guilty

on the count of posse ssion of a fire arm a fter ha ving be en 10 convicted of

a fe lony , in violation of 18 U.S.C. § 922(g)( 1). He was found not guilty of a se cond 11 count, intentional possession of a de fac ed fire arm, in violation of 18 U.S.C. § 922(k). Craw ford 12 filed a motion for a new tria l pursuant to Fe dera l Rule of Criminal Procedure 33, which 13 challeng ed the district cour t’s decision to reope n the trial to take e vidence duringjury 14 deliberations. The Rule 33 motion was denied. 15 DI SCU SSIO N 16 A district court’s a uthority to reope n proce eding s after summation, inst ructions on the 17 law, and a fter a

jury has begun deliberating is a nove l question in thi s Circuit. W hile we have 18 rec og nized that a district court has discr etion to reope n a cr iminal case a fter the close of 19 e vid e nc e , w e have no t is su e d a pu bli sh e d o pin ion

on the pr op ri e ty

of a c ourt ’s de c isi on

to d o s o 20 afte r the pa

rties’ summations and af

ter the jury

has bee n char g ed and ha s begun its deliberations. 21 See, e .g. , United States v. Burge r , 739 F.2d 805, 809- 10 (2d Cir. 1984) (holdingthat a district 22 c ourt

ha s d isc re tio n to op e n a

c a se a ft e r t

he de fe ns e re ste d b ut b e fo re c los ingargume nts 23 c omm e nc e d) ; United States v. Kanovsk y , 6 18 F .2 d 2 29 , 2 31 (2 d Ci r. 19 80 ) ( same ); United States 24 v. Aike n , 3 73 F .2 d 2 94 , 3 00 (2 d Ci r. 19 67 ) ( same ). Ho we ve r, the F ourt h Ci rc uit a dd re sse d th is8 1 issue in United States v. Nunez , 4 32 F .3 d 5 73 (4 th C ir . 2 00 5) . In th a t c a se , th e F ourt h Ci rc uit 2 c on sid e re d w he the r a dis tr ic t c ourt

a bu se d it s d isc re tio n w he n, in r e sp on se to a jur y no te , it 3 reope ned proc eeding s after deliberations had begun in order to introduc e into evidenc e a r eport 4 that had bee n mentioned by witnesses but neve r admitted into evidenc e. Id. at 577, 579. Afte r 5 establishing that a district court doe s have the discretion to re open a c ase e ven af ter the jury

has 6 begun deliberations, the court set for th the following issues to consider whe n evaluating the 7 district court’s e x erc ise of that discre tion: 8 The c ourt must consider the timeliness of the motion, the cha rac ter of the testimony , and 9 the ef

fec t of g rantingthe motion. The party moving to re open should provide a 10 rea sonable e x planation for f ailure to pre sent the evide nce in its ca se-in-c hief. The 11 evidenc e prof fer ed should be re levant, admissible, technic ally adequate, and he lpful to the 12 jury

in asce rtainingthe guilt or innocence of the a ccuse d. The be lated re ceipt of suc h 13 testimony should not im bue the e vidence with distorted importance, pr ejudice the 14 opposing pa rty ’s ca se, or

pr e c lud e an ad v e rsa ry fro m h av ing

an ad e qu ateop po rtu nit yto 15 mee t the additional evidenceoffered. 16 17 Id. at5 7 9 (a l t er at i o n s o m i t t ed ) ( qu o t i n g United States v. Pe ay , 972 F.2d 71, 73 ( 4th Cir. 1992)). 18 Ad dr e ssi ngthe se iss ue s, the F ourt h Ci rc uit he ld t he dis tr ic t c ourt

a bu se d it s d isc re tio n w he n it 19 reope ned the c ase a fter jur y deliberations had begun. Id. at 580-82. 20 The F ourth Circuit’s approa ch is consistent with our exist ing a naly sis in decisions dealing 21 with a trial cour

t’s discretion to re open a c ase be fore summations and jury deliberations. See, 22 e.g. , Burger , 739 F.2d at 810 (examining whe ther the de fenda nt was pre

judiced by

the belate d 23 int

ro du c tio n o f e vid e nc e ); Kanovsky , 618 F.2d at 231 (examining whe ther the e vidence was 24 rele vant, whethe r the de fenda nt was surprise d or pre

judiced by

the evidenc e, and whether the 25 de fe nd ant h a d th e op po rt un ity to m e e t th e pr oo f a s p re se nte d) ; Aiken , 373 F.2d at 300 (examining 26 th e a

b s e n c e o f a r e a s o n a b l e j u s t i f i c at i o nf o r n o tp r e s e n t i n g e v i d e n c e d ur i n g th e c a s e - i n - c h i e f

)

. It9 1 is also consistent with our prec edent r ecognizi ng that a “judg e has w ide latitude not to interrupt 2 jury

deliberations.” United States v. Golomb , 754 F.2d 86, 89 ( 2d Cir. 1985) (empha sis added) 3 (examining whe ther the e vidence supported the de fenda nt’s version of a

dispute in the evidenc e, 4 whether

the evidenc e conc erne d a mater ial point, and whether the def ense w as re sponsible for the 5 delay

). F urther, the test comports with the law of othe r circ uits, see U nited States v. W

alker , 772 6 F .2 d 1 17 2, 11 77 (5 th C ir . 1 98 5) ; United States v. Larson , 596 F.2d 759, 778 ( 8th Cir. 1979), and 7 the Supreme Court’s tre atment of the issue, see U nited States v. Baye r , 331 U.S. 532, 538 (1947) 8 (applying a

simil ar a naly sis to uphold a trial court’s denia l of a de fenda nt’s reque st to reopen a 9 case afte r the jury

had commenc ed deliber ations). Ther efor e, we will apply the Nunez

ana ly sis 10 a lon gwi th o ur

oth e r r e late d p re c e de nt t o d e te rm ine wh e the r t he dis tr ic t c ourt

a bu se d it s 11 discretion whe n it reopene d the g overnme nt’s case

. 12 I 13 The fir st issue we consider is the timeliness of the evidenc e and spe cifica lly whether there 14 is a rea sonable e x planation for the g overnme nt’s failure to present the e vidence duringthe ca se15 in-chief

. Nunez , 4 32 F .3 d at 57 9; see also Bay er , 331 U.S. at 538 (citingthe fa ilure to provide 16 e xcu se fo r u

nti me lin e ss a s r e a so n f

or re je c tin g re qu e st t o r e op e n c a se ); Aiken , 373 F.2d at 300 17 (re

jectinga re quest to reope n case based upon f ailure to provide rea sonable justification for not 18 prese nting e vidence duringcase -in-chie f). B oth parties agree that the g overnme nt has neve r 19 supplied an explanation for its failure to introduce the tra ce r eport into evidenc e duringits case20 in-chief

. Rather, the g overnme nt contends that it was not re quired to off er a n explanation 21 beca

use it never

moved to reope n the ca se; instead, the district cour t exercised its discretion sua 22 sponte to reope n the ca se in response to the jury ’s question.10 1 The g overnme nt offer s no leg al support for its ar g ument that no explanation is necessar y 2 if a c ase is re opened by the district court without a motion from a pa rty . In Nunez , the 3 g overnme nt moved to reope n for e vidence duringjury deliberations “[u] pon prompting by the 4 district court,” 432 F .3d at 577, and the F ourth Circuit never theless held that the district cour t 5 had abuse d its discretion by admitting the e vidence absent a “re asonable explanation” from the 6 g overnme nt for its failure to introduce that e vidence at trial. Id. at 580. The g overnme nt does 7 not ge t a fre e pass mer ely beca use the district judg e par

ticipates. The g overnme nt was not 8 order ed to pre sent the evide nce w ithout offeringits ex cuse f or fa iling to do so duringits case- in9 chief

. Rather, he re, thoug h the district court brought up the possibili ty of re openingthe ca se and 10 the g ov e rnme nt n e ve r f or ma lly mov e d to re op e n, the g ov e rnme nt t oo k a n a c tiv e ro le in 11 advocating, sha

ping, a nd ultimately

exploi ting that de cision for its benef it. That the district court 12 play ed an a ctive role in initi ating reope ning pr ocee dings doe s not ex cuse the g overnme nt from 13 sh ow ingthat it

ha d a re a so na ble e xplanatio n f

or fa ili ngto i ntr od

uc e the e vid e nc e in a

tim e ly 14 mann e r. Ind e e d, a s w e have sa id, “ wh e re c ouns e l f a ils to a c c ount a de qu a te ly fo r t he fa ilure to 15 elicit the evidenc e . . . ther e is substantial justification for re fusing to reope n the re cord.” Bl iss e tt 16 v . Le

fe v re , 924 F.2d 434, 439 ( 2d Cir. 1991). 17 Alternatively , the g overnme nt contends that the district cour t supplied an explanation for 18 the g overnme nt’s failure to present the e vidence when the c ourt opined that the g overnme nt had 19 simply

made a harmless mistake. Dur ing the hear ing on Cra wford’ s Rule 33 motion, t he district 20 court stated, 21 Th e g ov e rnme nt m ake s mi sta ke s o c c a sio na lly

and mos t of the tim e the y

pa y fo r i t. B ut I 22 don’t see that the fac t they didn’t offe r an e x planation–it would be one thingif they made11 1 some sort of strate g ic dec ision or they wer e ac ting in bad f

aith but, y ou know, I

don’t see 2 that th e fa ilure to o ff e r a n e xplanatio n–

the y ov e rl oo ke d it

. 3 4 Howeve r, this purported f inding ha s no evidentiary basis. Even the g overnme nt did not assert 5 that its failure wa s inadverte nt. We are not bound to ac cept the district c ourt’s spec ulation. 6 The g overnme nt indicated to def ense c ounsel that the trac e re port would be introduce d by 7 Special Ag ent Mulham. But he testified he kne w nothing a bout it. He stated the c ase a g ent 8 probably

knew a bout it. The case ag ent, Special Ag ent Murra y , was pre sent duringthe trial, but 9 was ne ver r equeste d to testify , even thoug h it was he who ide ntified the trac e re port when c alled 10 to testify

afte r deliber ations had begun. 11 We observe that the g overnme nt’s actions ar e susce ptible to another interpr etation: that 12 the g overnme nt’s failure to introduce the tra ce e vidence duringsever al conspicuous oppor tunities 13 at trial wa s a strate g ic choice . The tra ce r eport disclosed that when the last leg itimate owner 14 purcha sed the we apon involved in this case, he also purcha sed anothe r gun. The g overnme nt 15 disclosed that this other gun had turne d up in the same police prec inct wher e Craw ford wa s 16 arr ested, a

nd expressed conc ern that the evidenc e of two guns purcha sed in 1996 in Maryland 17 turning up in the same pre cinct in 2004 in Br ookly n may g ive rise to a suspicion that Cra wford 18 was fr amed. It is plausible that the gove rnment soug ht to avoid this i nfer ence by omitti ng the 19 introduction of the tra ce r eport a nd the complication of the second w eapon. T he g overnme nt 20 a c kn ow le dg e s th at if the fa ilure to o ff

e r e vid e nc e is t

he pr od uc t of a de lib e ra te or str a te g ic 21 decision, it is not the kind of reasona ble explanation require d to justi fy reope ning the rec ord 22 duri ngjur

y de lib e ratio ns .12 1 The g overnme nt’s failure to present the e vidence is susceptible to at least two 2 int e rp re tatio ns : e ith e r i t w a s an o ve rs ig ht o r a ta c tic a l de c isi on . N e ith e r e xplanatio n w ou ld 3 justify

the dramatic step of r eopeningits case a fter de liberations had be g un. Thus, this iss ue 4 weig hs in Crawfor d’s favor. 5 II 6 The sec ond Nunez issue require s an eva luation of the cha rac ter of the supplemental 7 evidenc e bef

ore r eopeningthe ca se. See Nune z , 432 F.3d at 579. The district court c onsidered 8 and eva luated the nature of the proff ere d evidenc e bef

ore r eopeningthe trial, including 9 questioning Mur

ray under oath to learn a

bout his testim ony . In fac t, Crawfor d does not argue 10 that Murr ay ’s te sti mony a bo ut t he tr a c e re po rt

wa s n ot “ re le va

nt, a dmi ssi ble , te c hn ic a lly 11 adequate, and he lpful to the jury in asce rtainingthe guilt or innocence of the a ccuse d.” Id. The 12 fac t that a trac e re port was done as is standard police proce dure w as re levant evide nce. Unlike 13 the re port in Nunez , see id. at 58 0- 58 1, Murr ay ’s te sti mony wa s a dmi ssi ble and

te c hn ic a lly 14 adequate. Additionally , the evidenc e of the trac e re port was pr obably helpful to the jury

. 15 Howeve r, upon re opening , the g overnme nt did more than just introduce e vidence that 16 the re wa s a

tr a c e re po rt : it

a lso e lic ite d te sti mony

that Cr awf

or d’ s c ouns e l knewthat a tra ce r eport 17 had bee n completed, sug g esting to the jury that Crawf

ord’s c ounsel had intentionally misled the 18 jury . The fa ct that Crawf ord’s c ounsel knew a

bout the trac e re port was not re levant to answe ring 19 the jury ’s question, and the district judg e later conce ded that the introduc tion of that testimony 20 had bee n err oneous. Thoug h the majority of the testimony

introduced upon r eopeningpushes 21 this second Nunez issue in the g overnme nt’s favor , the re levanc e and a dmissibi lity of the 22 statements about Craw ford’ s counsel’s knowle dg e ar e questionable . The g overnme nt was aw are13 1 i twa s o n l y

t o as k qu es t i o n s re s p o n d i n g t o th e j ury ’s i n qu i ry n o t e. T h e go v ern m en tch o s e t o go 2 a fi e ld a

nd a sk a no n- g e rm ane qu e sti on

– o ne that c an o nly

be int e rp re te d a s a

n e ff or t to dis c re dit 3 Crawf

ord’s attorney . This evidence was not re levant or “ helpful to the jury in asce rtainingthe 4 g uilt or innocence of the a ccuse d.” Id . at 579. 5 III 6 Th e fi na l Nunez issue considers the overa ll effe ct of the e vidence and whe ther its belated 7 int ro du c tio n “ imb ue [s] the e vid e nc e wi th d ist or te d im po rt anc e , p re

jud ic e [s] the [de fe nd ant’ s] 8 case , or pre clude[s] an adve rsar y from havingan ade quate oppor tunity to meet the additional 9 evidenc e off

ere d.” Id. at 579. 10 F ir st, the be late d intr od uc tio n o f t

he tr a c e repo rt

pr ob a bly imb ue d th e e vid e nc e wi th 11 distorted importance . In Nunez , the Four th Circuit attributed substantial weig ht to this fac tor and 12 rea soned that it had bee n trig g ere d solely on the basis that the evide nce ha d been introduc ed af ter 13 the commenc ement of jury deliberations. See id. at 581. Other courts have ag ree d, sug g esting 14 that th e imp or

tanc e of e vid e nc e int

ro du c e d a ft e r t

he c omm e nc e me nt o f d e lib e ratio ns is 15 presumptively

distorted. See B ayer , 331 U.S. at 538 (“[E]vidence, if put in afte r four hours of 16 de lib e ratio n b y

the jur y , w ou ld l ike ly

be of dis tor te d im po rt anc e .” ); Drummond v . United States , 17 350 F.2d 983, 991 ( 8th Cir. 1965) (holding that motions to reope n afte r jury deliberations are 18 “ pr e sumpt ive ly

. . . ma de too late ” ); Eason v. United States , 281 F.2d 818, 822 ( 9th Cir. 1960) 19 (discussing the “undue emphasis g iven to the introduce d evidenc e with conse quent distortion of 20 the evidenc e as a whole”) . I t is difficult to see it otherwise. It is li kely that when a

court 21 interrupts deliber ations to introduce new evidenc e, a jur

y may well conc lude that the new 22 evidenc e must be ver y important. And when, a s here , the new e vidence is entere d afte r closing14 1 arguments, defe nse counse l cannot minimiz e any distortion because he ca

nnot comment on the 2 rele vance and we ight of the new e vidence duringargument. See Se e Nunez , 432 F.3d at 581. 3 The g overnme nt sugg ests that reope ning the case to introduce the e vidence did not dist ort 4 the re lative importance of that evide nce be cause the jury asked the court spec ifically about the 5 trac e re port and so the c ourt did not, at a late stag e in the proc eeding s, direct the jur y ’s attention 6 to a

ne w p ie c e of

e vid e nc e . H ow e ve r, on

that po int

the fa c ts a

re ind ist inguis ha

ble fr om Nunez , in 7 which the jury

had sent a

note advisingthe cour

t that it was unable to locate a r eport that ha d 8 been me ntioned duringtrial. Id. at 577. In response to that note, the district court re opened the 9 trial to permit the admission of the re port. Id. In that case , as in this one, the jury alre ady had the 10 evidenc e on its mind, but t he F ourth Circuit still conclude d that reope ning the case for the 11 int

ro du c tio n o f t

he e vid e nc e imb ue d it

wi th d ist or

te d im po rt anc e . It is lik e ly

to h ave do ne so 12 he re a s w e ll. Whe n a jur y no te , w hic h ma

y signif y any thi ngfr om a

we ig hty c on c e rn sh are d b y

a ll 13 jur or s to a

ra nd om i nq uir y by on ly on e , is me t w ithan e vid e nti ary he ari ngc omp le te wi th 14 testimony

from a pr eviously

uncalled g overnme nt ag ent, its significa nce is likely

mag nified. 15 Fur

thermore , even if

we a cce pted the g overnme nt’s argument, the testimony elicited we nt bey ond 16 the scope of the jury ’s question by pointing out that Crawf

ord’s c ounsel knew a ll along a bout the 17 repor

t, potentially

g iving at least this discrediting inf ormation a he ighte ned sense of importance

. 18 19 Second, the be lated introduction of the tr ace repor t prejudice d Crawf

ord’s de fense

. 20 Def

ense c ounsel’s summation rested on the e x isting trial re cord, in whic h no trac e re port had 21 been introduc ed. It is li kely that he would not have made the sa me ar g ument had the g overnme nt 22 proper ly

introduced the repor

t during its case- in-chief

or if def ense c ounsel had known that the15 1 g overnme nt would have a second c hance to introduce the r eport a fter his summation. See 2 Kanovsky , 618 F.2d at 231 (unfair surprise a

rele vant fa ctor in dete rmining the propriety of 3 a dmi tti nge vid e nc e a ft e r a pa rt y ha s r e ste d) . T ho ugh th e g ov e rnme nt a rgue s th a t Cr awf

or d c ou ld 4 no t ha

ve be e n “ un fa ir ly

surp ri se d” at th e int

ro du c tio n o f t

he tr a c e re po rt

be c a us e he kn e w o f i ts 5 exis tence and the g overnme nt’s plans to introduce it, Crawf ord’s a rgument is not that the trace 6 re po rt

its e lf pr e jud ic e d h is d e fe ns e , b ut r a the r t hat th e tim ingand

mann e r o f i ts i ntr od

uc tio n d id 7 so. After

Mulham denied knowle dg e of the repor t and the g overnme nt offer ed no fur ther 8 e vid e nc e of

it, the tr ia l r e c or d w a s c los e d. Cr awf or d’ s c ouns e l pr op e rl y

re lie d o n th e re c or d a s it 9 stood for his argument and the late r re openingof that re cord in a n unusual proce dural move w as 10 an unfa ir surprise. 11 Most devastatingto Crawfor d, though, w as the testimony elicited by

the g overnme nt on 12 redire ct showingdefe nse counse l had bee n g iven the re port prior to trial. That fac t had no 13 pr ob ativ e va lue e xce pt t o in sin uate that de fe ns e c ouns e l ha d atte mpt e d to mis le a d th e jur y int o 14 believingsomething he knew not to be true . I t went beyond the scope of the orig inal purpose of 15 the re opening , which wa s supposed to have be en nar rowly -tailored to a

nsweringthe jury ’s 16 qu e sti on , a

nd it w a s h ig hly

pr e jud ic ia l a s it

un de rm ine d Cr awf

or d a nd his c ouns e l’ s c re dib ili ty 17 a ft e r t

he de fe ns e ha d a lr e a dy

pr e se nte d it s c a se . D isc re dit ingCr awf or d a nd his c ouns e l in

thi s 18 case was pa

rticularly damag ing be cause , as both sides stated in closingarguments, whether the 19 parties we re c redible w as “what this case [was] about.” Cra wford’ s entire de fense was that the 20 o ff

i ce rs t es t i fy i n g we re m i s t ak en o r l yi n g wh en th ey cl ai m edt o h av e f

o un d th e gu ni nh i s b ag, 21 beca

use the gun was not found at the scene of the a rre st and no other phy sical evide nce16 1 connec ted Crawf

ord to it. The implication that Crawfor d and Craw ford’ s counsel lied to the jury 2 was ve ry

likely to have unde rmined Craw ford’ s defe nse. 3 Th e g ov e rnme nt d oe s n ot c on te nd that th e te sti mony

wa s e lic ite d f

or any le g iti mate 4 rea son, but instead argues that, by ref err ing to the a

bsence of the tra ce r eport e vidence in closing 5 argument, Crawf

ord’s c ounsel eng ag ed in improper “ g amesmanship.” T hat Crawf ord’s c ounsel 6 ha d b e e n “ pla

yingg ame s” wa s a lso the ba sis fo r t he dis tr ic t c ourt ’s de c isi on to r e op e n th e c a se 7 over Cra

wford’ s objection. Howe ver, a revie w of the r ecor d shows that defe nse counse l’s 8 statements wer e not improper. A fter the g overnme nt failed to introduce the trac e re port during 9 Mulham’s testimony , as it had disclosed to the de fense it planned to do, or throug h any other 10 testimony , Crawf ord’s c ounsel could have rea sonably conclude d that the g overnme nt had either 11 ma de a

str ate g ic de c isi on

to w ithho ld t

hat r e po rt , o r t

hat it ha d s imp ly

do ne a po or job in 12 prese nting its evidenc e. In either c ase, it wa s appropr iate for Crawf ord’s c ounsel to highlig ht that 13 omission i n his summation. See U nited States v. Rubinson , 543 F.2d 951, 965- 66 (2d Cir. 1976) 14 (“D efe nse counse l cer tainly is entitled to direct the jury ’s attention to what he be lieves ar e 15 loopholes in the g overnme nt’s case and to ar g ue that these loopholes establish the non-existence 16 of fa cts which the g overnme nt would have pr oven if it had the e vidence ”). 17 Nor we re Cra wford’ s remar

ks during argument distorting or misleading . He summarized 18 Mulham’s testimony and pointed out that, when a sked whe ther he had done a ny thing to tra ce the 19 wea

pon, Mulham answer ed no. That statement was a ccur ate. Any confusion that this cause d 20 was the f

ault of the g overnme nt, which did not take an oppor tunity to offer trac e re port evidenc e 21 throug h another

witness afte r Mulham denied know ledg e. It was not “play ing g ames” for 22 defe nse counse l to have commente d on the g ap in the g overnme nt’s evidenc e. Eve n if the jury17 1 was lef

t with an err oneous impression, once the g overnme nt had clea red up a ny confusion about 2 the trac e re port duringMurra y ’s direc t examination, i t went too far when it let the jury

know that 3 Crawf

ord’s c ounsel had known a bout the trac e re port all along

. 4 Even the district c ourt rec og nized it was troubled by the introduction of the testimony and 5 that it s in c lus ion

wa s e rr on e ou s. Th e c ourt , h ow e ve r, de c ide d th a t th e te sti mony wa s h arm le ss, 6 stating that the jury seeme d to car efully

weig h the evidenc e and w as not influence d by the 7 imp ro pe r c omm e nts . T he g ov e rnme nt d oe s n ot a dv oc a te thi s p os iti on , a nd we g ive no we ig ht t o 8 the district court’s c ursory speculation. The Nunez

test does not require Crawf ord to show the 9 prec ise eff

ect that r eopeningthe ca se had on the jury verdic t, and we que stion whether a ny such 10 e rr or

c ou ld b e c on sid e re d h arm le ss. As po int e d o ut e arl ie r, wh e ne ve r t he re sp on se to a

jur y no te 11 is a forma l evidentiary hear ing, the importance of that evide nce is unduly amplified to the jury

. 12 The attack on Craw ford’ s counsel’s c redibility was so amplified a

nd was pre

judicial. 13 T h i rd , C ra wf o rdwa s un ab l e t o re s p o n d ad equ at el y

t o th e n ew ev i d en ce . Al th o u gh 14 Cr awf

or d’ s c ouns e l w a s p e rm itt e d to c ro ss- e xami ne Murr ay , h e wa s n ot a ble to c omm e nt o n it

in 15 summatio n. No r w a s h e a ble to d e te rm ine why

the g ov e rnme nt f

a ile d to c a ll M ur

ra y duri ngits 16 ca s e- i n -c h i ef

. T h e o p p o rt un i ty

t o ar gu e ap o i n ti na w ay n o tp o s s i b l e t h ro u ghcr o s s -e x am i n i n g a 17 witness was a

n important fac tor to the Supreme Court in Baye r and to t he F ourt h Ci rc uit in 18 Nunez

. See B ayer , 331 U.S. at 538 (stating that the re openingof a c ase to a dmit a document four 19 ho ur s a ft e r t

he jur y ha d b e e n d e lib e ratin g wo uld be pr e jud ic ia l to the g ov e rnme nt b e c a us e it 20 “ wo uld

the n h ave ha d n o c ha

nc e to c omm e nt o n it , s umm a tio n h avin g be e n c los e d” ); Nunez , 432 21 F .3 d at 58 1 ( “ [A]t a min imum,” de fe nd ants sh ou ld “ have ha d th e a bil ity to a dd re ss [the ne wl y 22 admitted evidenc e] and argue its releva nce a nd weig ht to the jury

duringsummation”).18 1 Crawf

ord’s c ounsel was una

ble to argue either

about the g overnme nt’s newly introduced 2 evidenc e or the attack on his c redibility . Fur thermore , though the district court pointed out that 3 Cr awf

or d’ s c ouns e l ne ve r a sk e d to g ive argume nt a ft e r t he re op e nin g and

that su c h a

re qu e st 4 wo uld

have be e n g ra

nte d, it i s h ard

to i ma g ine wh a t he c ou ld h ave do ne to s a lva g e his c re dib ili ty 5 afte r the g overnme nt’s unpredic table re direc t. 6 As explained above, this final fa ctor of pr ejudice w eig hs heavily in Crawfor d’s favor. 7 When, over his re peate d objection, the evide nce w as re opened a fter the jury had begun 8 deliberations, the significa nce of the trac e re port was distorted a nd his counsel’s cr edibility was 9 intentionally

attacke d. Moreove r, he la cked a n adequate opportunity

to respond to the pre

judicial 10 testimony

. 11 CO NC LU SION 12 Whil e we need not a dopt a blanket r ule ag ainst admitting evide nce a fter the start of jury 13 deliberations to resolve this case, w e obser ve that it must be done with “e x treme r eluctanc e,” 14 Eason , 281 F.3d at 822, give n the substantial risk of pre judice to the def

endant. He re, ba lancing 15 the Nunez

issues, we c onclude that the district c ourt abused its discre tion when it reope ned the 16 case for a dditional testim ony afte r the jury

beg an deliber ations. The g overnme nt provided no 17 rea sonable e x planation for its fa ilure to introduce the evidenc e duringits case- in-chief , and the 18 evidenc e that Craw ford’ s counsel knew about the tra ce r eport prior to trial was not re levant and 19 was hig hly

prejudicia l. We therefor e vac ate Cra wford’ s conviction and sente nce a nd rema nd for 20 a ne w tri a l. 21 VACATED A

ND REMANDED

.