NOT PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS

F O R THE THIRD CIRCUIT

NO. 05-4260

UNITED STATES OF AMERICA

v. N O L A N HUGH

A p p e lla n t

On Appeal From the United States

District Court

F o r the Eastern District of Pennsylvania

(D.C. Crim. Action No. 03-cr-00829)

D istrict Judge: Hon. Harvey Bartle, III

Argued January 17, 2007

B E F O R E : McKEE, AMBRO and STAPLETON

C irc u it Judges

(O p in io n Filed June 14, 2007

Patrick L. Meehan

U n ite d States Attorney

R o b e rt A. Zauzmer

A s s is ta n t U.S. Attorney

J e n n if e r A. Williams (Argued) P au l G. Shapiro A s s is ta n t U.S. Attorney 6 1 5 Chestnut Street P h ila d e lp h ia , PA 19106 Attorneys for Appellee M a u re e n K. Rowley C h ie f Federal Defender D a v id L. McColgin A s s is ta n t Federal Defender R o b e rt Epstein (Argued) A s s is ta n t Federal Defender 6 0 1 Walnut Street T h e Curtis Center - Suite 540 West P h ila d e lp h ia , PA 19106 Attorneys for Appellant OPINION OF THE COURT STAPLETON, Circuit Judge: A p p e llan t Nolan Hugh was convicted by a jury of conspiracy to interfere with in te rs ta te commerce by robbery, interference with interstate commerce by robbery, and u s in g a gun during a crime of violence. He was sentenced to 180 months of im p ris o n m e n t, and this appeal followed. We will affirm.

T h e teller at the check cashing store that was robbed by two men testified for the g o v e rn m e n t. On direct, she gave a detailed account of the robbery itself and of her s u b s e q u e n t identification of Hugh in a police photo spread as the "second robber"--the ro b b e r who had stopped by the store two hours before he reappeared during the robbery.

She said, among other things, that Hugh had asked for change for a $5 bill when he first c a m e to the store. On cross-examination, defense counsel showed her a two-page police " In v e stig a tio n Interview" she had given to the police on the day of the robbery and asked if she did not there say she could not remember why Hugh had first come to the store.

The witness acknowledged the conflict. The two-page interview, which in response to q u e stio n s from an investigating officer provided an account of the entire robbery episode, h a d been marked Defendant's Exhibit D-1-A for identification (hereafter "D-1-A").1 Its c o n te n ts had not been referred to earlier in the trial. Although the investigating officer te stif ie d in response to questions from defense counsel that he prepared a report of the in te rv ie w , the contents of that report were not subsequently referred to in the testimony.

D-1-A was never offered into evidence.

D u rin g his closing argument, defense counsel, in the course of arguing that the p h o to spread had been unduly suggestive, informed the jury that the teller in her interview o n the day of the robbery had described the second robber as having a "Muslim type b e a rd ." F o llo w in g the Court's charge to the jury, defense counsel asked that D-1-A and a n o th e r document be sent out to the jury room with the jury. The government pointed out th a t they had not been moved into evidence and that, if they had been, the government w o u ld have been objected to their admission as hearsay. The Court declined to send the e x h ib its out with the jury, stating: "[T]hey were not moved into evidence. So they will n o t go out." App. at 528.

A f ter the jury retired and the Court returned from a recess, it further explained to d e f e n s e counsel why D-1-A was hearsay: T h e other document is D-1A, which is called an Investigation In ter v iew Record dated May 24, '03, which is a series of questions put to A lyia Hason, and her answers, which were typed up by the detective and s ig n e d by Ms. Hason. That, of course, was a statement made by a witness, o th e r than while testifying here at the trial or hearing. This does not come w ith in the exception set forth in rule 801[(d)], which defines statements w h ic h are not hearsay. And while under certain circumstances prior s ta te m e n ts of witnesses may be admitted into the record, and are not d e e m e d to be hearsay, this document does not come within the definitions set forth in 801[(d)(1)].2 F irs t of all, it doesn't come within rule 801[(d)(1)(A)], since it is not g iven under oath. It does not come within the definition of 801[(d)(1)(B)] b ec au se it's not being offered as a statement consistent with the declarant's te s tim o n y, and it is not offered to rebut an express or implied charge against th e declarant of recent fabrication or improper influence or motive.

A n d again, neither of these documents comes within any exception o f the hearsay rule. So therefore, again, while this document was used for im p e a ch m e n t purposes during the examination of Ms. Hason, it's not s u b s ta n tiv e evidence and will not be admitted.

A p p . at 530-31.

A f te r reaffirming its ruling that the statement was not admissible as "substantive e v id e n c e," the Court added that "even if it's somehow admissible at this point, I think by s e n d in g it out to the jury would give undue weight to that statement." App. at 532.

A t some point during the Court's discussion of this issue with counsel, the jury s e n t a note to the Court requesting that it be provided with a copy of D-1-A and a police in v e stig a tio n report of the robbery. The Court responded: M e m b e rs of the jury, under our rules of evidence, I will not be able to send those statements out with you, and you're just going to have to re m e m b e r the testimony that was given during the trial, and of course the d e m o n s tra tiv e exhibits that you have. Thank you.

A p p . at 532-33.

B e f o re us, Hugh insists that the District Court abused its discretion by not re o p e n in g the evidence, admitting D-1-A, and sending it out to the jury. We find no a b u se .

F irst, as the foregoing account indicates, the defense failed to offer D-1-A into e v id e n c e and did not provide an excuse for not doing so. As a result, with one minor e x c ep tio n regarding the teller's memory of the pretext for the second robber's initial a p p e ara n c e, the significance of the contents of that two page document was something th a t the government had no occasion to address through testimony, exhibits, or comments o f counsel in closing. In a letter to the court, the defense calls our attention to several c a se s in which courts of appeals have affirmed the decision of a district court to reopen th e record in a case after both parties had rested. See United States v. Boone, 437 F.3d 8 2 9 , 837 (8th Cir. 2006); Duong v. McGrath, 128 Fed. Appx. 32, 34 (9th Cir. 2005) (nonp re c e d e n tial); United States v. Ramirez-Gonzales, 116 Fed. Appx. 369, 372 (3d Cir. 2004) (n o n -p re c e d e n tial); United States v. Mojica-Baez, 229 F.3d 292, 300 (1st Cir. 2000); U n ite d States v. Wilcox, 450 F.2d 1131, 1144 (5th Cir. 1971); United States v. Schartner, 4 2 6 F.2d 470, 475 (3d Cir. 1970); United States v. Duran, 411 F.2d 275, 277 (5th Cir. 1 9 6 9 ) In none of those cases, however, did the court of appeals grant what Hugh asks f ro m this court--a decision reversing the district court's decision not to reopen a case.

There is good reason for this. Our precedents and those of other courts of a p p e als -- in c lu d in g those that Hugh cites to us--have consistently held that a district c o u rt enjoys broad discretion regarding whether to reopen the record. Boone, 437 F.3d at 8 3 6 ; United States v. Coward, 296 F.3d 176, 180 (3d Cir. 2002) (drawing an analogy b e tw e e n reopening a trial record after the parties have rested and reopening the record of a suppression hearing on remand); United States v. Blankenship, 775 F.2d 735, 741 (6th C ir. 1985); Wilcox, 450 F.2d at 1143; Duran, 411 F.2d at 277. We have also cautioned " th a t courts should be extremely reluctant to grant reopenings." Coward, 296 F.3d at 180 (q u o tin g United States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000)); Wilcox, 450 F.2d at 1 1 4 3 -4 4 . Under the circumstances of this case, where the defense offered no excuse for f a ilin g to move the exhibit into evidence and the prosecution had no occasion to address it,3 we cannot say that the district court abused its discretion by not admitting it at the late s ta g e at which it was offered.

S e c o n d , we perceive no error in the District Court's ruling that D-1-A was inad m issib le hearsay. When the defense finally focused the Court's attention on its desire to get D-1-A to the jury, at no point did it offer less than the entire exhibit and at no point d id it refer the Court to the two rules of evidence it now relies upon to support D-1-A's ad m issib ility. This is important because it is clear from the record that the Court u n d e rsto o d the defense to be seeking to get the entire statement before the jury. From this p e rs p e c tiv e , it is clear both that the granting of this request would have involved the a d m iss io n of hearsay and that neither of the now cited rules were relevant.

D -1 -A consists of a detective's two-page account of what he understood the teller to be saying as he questioned her about her experience on the day of the robbery. It is c le a rly hearsay as defined in Fed. R. Evid. 801(c) and clearly does not come within any of the three exceptions carved out by Rules 801(d)(1)(A), (B) or (C). As the District Court o b s e rv e d , D-1-A did not come within the scope of (A) because it was not given under o a th or (B) because it was not offered as a prior consistent statement. While Hugh now in s is ts that D-1-A was admissible under (C), only one answer to one question in this twop a g e document can fairly be characterized as a statement "of identification of a person m a d e after perceiving the person." 4 See United States v. Brink, 39 F.3d 419, 424-26 (3d C ir. 1994). Given the failure to call this single answer or Rule 801(d)(1)(C) to the C o u rt's attention, we cannot fault the Court for viewing D-1-A as hearsay.

T h e other rule relied upon before us for the first time is Rule 612 relating to w ritin g s "Used to Refresh Memory." 5 Hugh insists that the teller acknowledged 4 The teller's answer to a request for a description of the "second male" was as follows: H e was short. He was about 5'5 and a darker brown skin. He had a m u s ta c h e and a Muslim type beard. He was wearing a dark colored w in d b re a k e r with a yellow shirt underneath with some black printing on it.

He was wearing loose pants. They were dark colored, either khakis or je a n s. He was also thin. He was younger, between 30-35.

A p p . at 541.

5 Federal Rule of Evidence 612 provides: E x c e p t as otherwise provided in criminal proceedings by section 3 5 0 0 of title 18, United States Code, if a witness uses a writing to refresh m e m o r y for the purpose of testifying, either ­ re v ie w in g D-1-A the day before she testified "to prepare for testifying" and, accordingly, th a t it "could be admitted . . . in its entirety under Rule 612(2)." Br. Appellant at 30. It is n o t at all clear to us that the teller acknowledged using D-1-A to refresh her recollection,6 b u t we assume for present purposes that she did.

B e c au s e D-1-A was not offered under Rule 612, the District Court never had the o p p o rtu n ity to exercise its discretion regarding the "interests of justice" and, for that re a so n alone, we would be reluctant to find that it had abused its discretion. Even if the C o u rt's attention had been called to Rule 612 and it had declined to let D-1-A go to the (1) while testifying, or (2 ) before testifying, if the court in its d is c re tio n determines it is necessary in the in te re sts of justice, a n adverse party is entitled to have the writing produced at the hearing, to in sp e c t it, to cross-examine the witness thereon, and to introduce in e v id e n c e those portions which relate to the testimony of the witness. If it is c la im e d that the writing contains matters not related to the subject matter of th e testimony the court shall examine the writing in camera, excise any p o rtio n s not so related, and order delivery of the remainder to the party e n title d thereto. Any portion withheld over objections shall be preserved a n d made available to the appellate court in the event of an appeal. If a w ritin g is not produced or delivered pursuant to order under this rule, the c o u rt shall make any order justice requires, except that in criminal cases w h e n the prosecution elects not to comply, the order shall be one striking th e testimony or, if the court in its discretion determines that the interests of ju stic e so require, declaring a mistrial.

6 The record reflects that the prosecutor gave the witness documents to review and that s h e read "not all of them, but . . . a few on Thursday." App. at 216. The teller's statement th a t she thought she reviewed "the paper you just had here . . . yesterday morning," App. a t 217, may or may not be a reference to D-1-A. Because it was never referred to Rule 6 1 2 , however, the District Court had no occasion to determine whether the witness did or d id not refresh her recollection with D-1-A before trial. ju ry, however, we still would not find abuse. What the defense wished to get before the ju ry from D-1-A was the description of the second robber given by the teller to the police o n the day of the robbery. As Hugh's brief before us explains, "[W]hile defense counsel a c cu ra te ly referred to the document during closing argument ­ that Ms. Hason described ro b b e r 2 as having a Muslim beard ­ counsel's statement could not be considered as e v id e n c e of that fact by the jury." Br. Appellant at 31. Rule 612 was not an appropriate v e h ic le , however, to remedy this situation.

R u le 612 provides for the introduction of a writing used to refresh memory prior to tria l at the court's discretion because the "power of suggestion embodied in a writing can c re a te a false memory," which the witness may be "unable to distinguish from that based o n actual perception." 28 Charles Alan Wright & Victor James Gold, Federal Practice & P r o c e d u re § 6182, at 443-44 (1993). Accordingly, the right conferred by Rule 612 "`to in tro d u c e in evidence those portions which relate to the testimony of the witness' . . . s im p ly means the writing may be admitted on the question of the witness' credibility and is not thereby made admissible for other purposes. If offered for some other purpose, d if f ere n t rules would be applicable, such as those regulating hearsay and the use of c o p ie s." 28 id. § 6183, at 455-56.

Had the District Court been referred to Rule 612 and advised of why it was being o ff ere d , the denial of the application would not have been an abuse of discretion. D-1-A w a s not being offered to show that anything the teller had testified to had been influenced b y her refreshing her recollection with the description of the second robber. Rather, it w a s being offered as "substantive evidence,"in the Court's words, ­ i.e., offered for the tru th of the detective's report that the teller described the second robber as having a " M u s lim beard." If the defense wished to argue, as counsel did in closing, that the police h a d structured the photo spread so that only one individual would fit the description given b y the teller, defense counsel had a full opportunity to secure competent evidence of the te lle r's description from the teller and from the detective who also testified. D-1-A when o f f e re d for this purpose, however, was hearsay.

H a v in g concluded that the District Court did not abuse its discretion in finding D1 -A inadmissible when and as offered to it, we find it unnecessary to address Hugh's c h a llen g e to the District Court's ruling that if D-1-A were admissible it should n e v e rth e le ss not be given to the jury because of the potential for it being given undue w e ig h t.

T h e judgment of the District Court will be affirmed.7 U n ite d States v. Nolan Hugh N o . 05-4260 A M B R O , Circuit Judge, dissenting.

T w o men robbed a store. The single eyewitness, Alyia Z. Hasan, gave police a s ta te m e n t in which she described one of the robbers as having "nice hair" and a "Muslimtyp e beard." Attempting to determine the identity of this robber, the police later presented H a sa n with a photographic "line-up" that appeared to include only two or three in d iv id u a ls fitting the description she earlier gave. At trial, largely based on deficiencies in the suggestive line-up, defense counsel vigorously challenged whether the defendant, N o la n Hugh, was one of the robbers. By mistake, the form on which Hasan's description o f the robbers was recorded, marked as exhibit D-1-A, was not introduced in evidence; h o w e v e r , it was extensively referenced--without Government objection--during defense c o u n se l's closing argument. Soon after the jury retired to deliberate and the physical e v id e n c e was assembled for its review, the parties discovered the error. As one might e x p e ct, defense counsel moved to reopen the record so that exhibit D-1-A could be in tro d u c e d in evidence and sent to the jury. The District Court denied the motion, ruling th a t admitting it would invite the jury to give it "undue weight." During deliberations, the ju ry specifically requested to see exhibit D-1-A, but the District Court refused. I believe th a t this was reversible error. By ruling otherwise, and with citation to almost none of the re le v a n t law, the majority makes abuse-of-discretion review tantamount to no review at a ll. I respectfully dissent.

I . The Legal Framework D e sp ite the impression one might get from the majority opinion, "[t]here is no iro n -b o u n d , copper-fastened, double-riveted rule against the admission of evidence after b o th parties have rested upon their proof and even after the jury has entered upon its d e lib e ra tio n s ." United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985); see, e.g., D ib e lla v. Hopkins, 403 F.3d 102 (2d Cir. 2005) (affirming district court's grant of a m o tio n to reopen); United States v. Smith, 42 F.3d 1404 (9th Cir. 1994) (table decision), tex t at 1994 WL 680999 (same); United States v. Green, 757 F.2d 116 (7th Cir. 1985) (sa m e ); United States v. Carter, 569 F.2d 801 (4th Cir. 1977) (same); Mo. Pac. Ry. Co. v. O le so n , 213 F. 329 (8th Cir. 1914) (same); Alaska United Gold Mining Co. v. Keating, 1 1 6 F. 561 (9th Cir. 1902) (same); Commercial Travelers' Mut. Acc. Ass'n v. Fulton, 93 F . 621 (2d Cir. 1899) (same). Our only task, therefore, is to determine whether the D is tric t Court abused its discretion in refusing to allow Hugh to do so in the context of th is case. Anzano v. Metro. Life Ins. Co., 118 F.2d 430, 435 (3d Cir. 1941). And though th e majority chides Hugh for failing to cite cases that "grant[ed] what [he] asks from this [ C ]o u rt-- a decision reversing the [D]istrict [C]ourt's decision not to reopen a case," Maj.

O p . at 6 (emphasis in original), it is clear that such cases do exist, see, e.g., United States v . Parker, 73 F.3d 48 (5th Cir. 1996), vacated and reh'g en banc granted, 80 F.3d 1042 (5th Cir. 1996) (en banc), reinstated in relevant part, 104 F.3d 72 (5th Cir. 1997) (en b a n c ); United States v. Walker, 772 F.2d 1172 (5th Cir. 1985); United States v. Larson, 5 9 6 F.2d 759 (8th Cir. 1979).8 T h e framework for analyzing questions of this sort is well-stated in United States v . Thetford: In exercising its discretion [when deciding whether to reopen the record], th e court must consider the timeliness of the motion, the character of the te stim o n y, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for the failure to present th e evidence in its case-in-chief. The evidence proffered should be re lev a n t, admissible, technically adequate, and helpful to the jury in a sc e rta in in g the guilt or innocence of the accused. The belated receipt of s u c h testimony should not "imbue the evidence with distorted importance, p re ju d ic e the opposing party's case, or preclude an adversary from having a n adequate opportunity to meet the additional evidence offered." 6 7 6 F.2d 170, 182 (5th Cir. 1982) (quoting Larson, 596 F.2d at 778).9 "The most 8 In substantively addressing this statement by the majority, I perhaps give it more tre a tm e n t than it deserves. All that the majority accomplishes by it is to set up and then k n o c k down a strawman. The real story is this: shortly before oral argument, Hugh s u b m itte d a letter to our Court pursuant to Federal Rule of Appellate Procedure 28(j) that c ite d several cases in which the Government had been allowed to reopen the record after it had rested its case. He did this in order to rebut the Government's argument that the D is tric t Court's decision should be affirmed solely because exhibit D-1-A was not moved in evidence before Hugh had rested his defense. To the contrary, argued Hugh, the cases " c lea rly demonstrate" that exhibit D-1-A "was not, as a matter of law, inadmissible b e c au s e of defense counsel's mistake in failing to move earlier for its admission." Nothing in Hugh's supplemental submission purports to bolster his primary argument that it was an abuse of discretion for the District Court not to reopen the record. That a rg u m e n t, instead, is appropriately made in his opening brief, and the majority's faulting h im for not also including it in a Rule 28(j) letter is somewhat odd.

9 We have approved this framework for use in the "analogous" context of whether to a llo w additional evidence after a reversal and remand of the denial of a motion to s u p p re s s . See United States v. Kithcart, 218 F.3d 213 (3d Cir. 2000); United States v. V a sto la , 915 F.2d 865 (3d Cir. 1990). Both Kithcart and Vastola cited Blankenship, im p o rta n t consideration is whether the opposing party is prejudiced by reopening." Blankenship, 775 F.2d at 741. Naturally, the later in the proceedings the motion is made, th e more likely that the non-moving party will be prejudiced. See id. To repeat, though, " [ m ] o tio n s to reopen have been granted after both parties have rested." Larson, 596 F.2d a t 778 (citing United States v. Barker, 542 F.2d 479 (8th Cir. 1976)); see Dibella, 403 F .3 d at 119­21 (reopening the record during closing arguments); Smith, 1994 WL 6 8 0 9 9 9 , at *1 (admitting items "[a]fter the close of evidence"); Walker, 772 F.2d at 1177 (re o p e n in g the Government's case-in-chief after both sides had rested); Keating, 116 F. at 5 6 5 (introducing "further evidence after both the plaintiff and defendant had announced th a t the case was closed"). Additionally, and particularly pertinent to this case, " [ r]e o p e n in g is often permitted to supply some technical requirement . . . [or] some detail o v e rlo o k e d by inadvertence." Blankenship, 775 F.2d at 740.

I I . Applying the Legal Framework T h e majority offers only two explicit reasons for finding no abuse of discretion in th i s case: (1) Hugh did not offer exhibit D-1-A in evidence before resting his defense c a s e , see Maj. Op. at 6­7; and (2) exhibit D-1-A is inadmissible in any event, see Maj.

O p . at 7­11. As to the first reason, I agree. But so what? The very purpose of a motion to reopen the record is to admit evidence not previously admitted. If the majority's point w e re valid, no motion to reopen should ever be granted. That, of course, cannot be the c a s e , and the majority's argument in this regard, therefore, needs no further response. As f o r the majority's second reason, I address it in Part II.A immediately below. In capsule f o rm , the portion of exhibit D-1-A giving Hasan's description of the robbers is a d m iss ib le, and the majority ultimately acknowledges this. In Parts II.B­D, I go on to a d d re ss other factors relevant to the decision whether to reopen, as admissibility is not by its e lf sufficient to justify reopening the record.

A. A d m i s s i b i l it y T h e majority finds "no error in the District Court's ruling that [exhibit] D-1-A was in a d m is s ib le hearsay." Maj. Op. at 7. I disagree, for it is hornbook law that the portion o f exhibit D-1-A giving Hasan's description of the two robbers, including reference to o n e as having "nice hair" and a "Muslim-type beard," is not hearsay and is therefore a d m is s ib le . See FED. R. EVID. 801(d)(1)(C) ("A statement is not hearsay if . . . [t]he d e c la ra n t testifies at the trial . . . and is subject to cross-examination concerning the s ta te m e n t, and the statement is . . . one of identification of a person made after perceiving th e person . . . ."); United States v. Brink, 39 F.3d 419, 424­26 (3d Cir. 1994); M CC ORMICK ON EVIDENCE § 251, at 385­86 (John W. Strong et al., eds., 5th ed. 1999).

The majority admits as much. See Maj. Op. at 8 ("[O]nly one answer to one question in [ e x h ib it D-1-A] can fairly be characterized as a statement [of prior identification].").

For our purposes, the discussion on admissibility should end there. But instead, th e bulk of the majority's discussion attempts to explain why Hugh effectively waived a n y claim to the admissibility of exhibit D-1-A by defense counsel's "failure to call this s in g le answer or Rule 801(d)(1)(C) to the [District] Court's attention." Maj. Op. at 8.

There are several problems I have with this analysis, not the least of which is the q u e stio n a b le relevance of a waiver-type argument in the first place. The alleged error in th is case is not so much about admissibility, but rather the District Court's refusal to re o p e n the record. Our review, therefore, is not the same as when we consider typical e v id e n tia ry rulings as to admissibility, where a defendant's waiver triggers plain error re v iew . Instead, we review here for an abuse of discretion in the denial of a motion to re o p e n the record, in which the only requirement at this step of the analysis is that the e x h ib it be admissible in the abstract. Concerns over timeliness and the adequacy of c o u n se l's advocacy are addressed by other factors set out in Thetford and Larson.

Waiver, therefore, cannot have a determinative effect on a decision of this nature, and the m a jo rity errs in concluding otherwise.

B u t even the majority's waiver-of-admissibility argument has problems. First, the D istrict Court did not rest its decision refusing to reopen the record on exhibit D-1-A's s u p p o s e d inadmissibility. Instead, when defense counsel asked the Court, "On what ru lin g , Your Honor, because they're hearsay, or because they were never submitted?", it re p lie d , "I think the jury understands the statements, and I think . . . it gives undue weight to [the] statements, even assuming that they are otherwise admissible." That this concern f o rm e d the basis of the Court's ruling was confirmed later when the jury specifically re q u e ste d to see exhibit D-1-A and a lengthy discussion between the Court and counsel e n su e d . Concluding that discussion, the Court ruled: [ E x h ib it D-1-A is] not substantive evidence, and even if . . . it's somehow a d m i s s ib le at this point, I think by sending it out to the jury it would give u n d u e weight to that statement. The jury needs to consider everything [Ms.

H a sa n ] said on the witness stand, and it's their recollection of what she said th a t's important. And I would not send it out with the jury, even if s o m e h o w it were admissible as substantive evidence.

In short, the majority hardly can fault Hugh for failing to raise Rule 801(d)(1)(C) when it w o u ld not have made a difference in the Court's decision.

S e c o n d , when the Court and counsel did finally wrestle with the hearsay is s u e -- o n ly after the denial of the motion to reopen and after the jury's request to see e x h ib i t D-1-A--the Court concluded as follows: [E x h ib it D-1-A] does not come within the exception set forth in rule 801(d), w h ich defines statements which are not hearsay. And while under certain c irc u m s ta n c es prior statements of witnesses may be admitted into the re c o rd , and are not deemed to be hearsay, this document does not come w ith in the definitions set forth in 801(d)(1).

F irs t of all, it doesn't come within rule 801(d)(1)(A), since it is not g iv e n under oath. It does not come within the definition of 801(d)(1)(B) b ec au se it's not being offered as a statement consistent with the declarant's te s tim o n y, and it is not offered to rebut an express or implied charge against th e declarant of recent fabrication or improper influence or motive.

T h e analysis inexplicably stops there. After having addressed Rule 801(d)(1)(A) and 8 0 1 (d )(1 )(B ), the Court never took the next logical step and considered Rule 8 0 1 (d)(1 )(C )-- e v en though that is clearly the applicable provision. It is true that Hugh n e v e r specifically raised Rule 801(d)(1)(C), but neither was he required to do so under o u r precedent. See Brink, 39 F.3d at 425 (holding it sufficient merely to argue that " `u n d e r the federal rules [a statement] is not hearsay.' . . . Although [the defendant] did n o t mention Rule 801(d)(1)(C) expressly, his objection was sufficiently specific to inform th e district court."). The question whether exhibit D-1-A contained hearsay was p re se n te d to and addressed by the District Court. That is all that is required.

F in a lly, the majority faults Hugh for attempting to admit the entirety of exhibit D1 -A (a two-page document) rather than just the small portion comprising Hasan's d e s c rip tio n of the robbers. See Maj. Op. at 7­8. Even if the majority is correct that the e n tire exhibit is not admissible,1 0 Hugh's primary concern was whether the portion c o n tain in g the description was introduced. The only reason his counsel discussed exhibit D -1 -A in his closing at all was to implore the jury to compare the photographic line-up w ith the description Hasan gave to the police, and thereby conclude that the line-up was too suggestive to credit Hasan's identification of Hugh. If the District Court's concern w e re truly with inadmissible hearsay portions of the document, there is no reason why the d o c u m e n t could not have been redacted.1 1 In sum, I conclude (as does the majority) that the relevant portion of exhibit D-1-A is admissible. It thus becomes necessary to consider other factors, such as the character o f the evidence proffered, counsel's excuse for failing to introduce it in a timely manner, a n d the prejudice that might have resulted from its untimely admission. I address these f a c to rs in the sections that follow.

B. C h a ra c te r of the Evidence W h e n evaluating the character of the proffered evidence, courts should consider th e practical problems (e.g., disruptiveness to the trial) that may result in granting a m o tio n to reopen, as well as what effect it would have on the entire case. See, e.g., W a lk e r, 772 F.2d at 1178­79. Here, both considerations weighed in favor of Hugh's m o tio n to reopen.

F irst, the practical implications of reopening the record in this case were virtually n il. Exhibit D-1-A had already been authenticated and could have been moved in e v id e n c e in a matter of seconds--and certainly in a shorter amount of time than the D is tric t Court spent concluding that an admissible document would not be admitted by re o p e n in g the record. The situation here (involving a single additional document) is s im ila r in character to that presented in Smith, see 1994 WL 680999, at *1 (allowing gift ce rtifica tes to be admitted after the close of evidence), or Dibella, see 403 F.3d at 119 (reo p en ing the record to introduce a time-sheet). Moreover, admitting exhibit D-1-A w o u ld have been less disruptive than reopening the record for additional testimony, which o th e r courts have allowed. See, e.g., Blankenship, 775 F.2d at 738, 741 (admitting the tes tim o n y of three additional witnesses); Green, 757 F.2d at 119 (one additional witness); O le so n , 213 F. at 331 (same); Keating, 116 F. at 565 (same); Fulton, 93 F. at 623 (m u ltiple expert witnesses).

S e c o n d , the importance of Hasan's description of the second robber as having " n ic e hair" and a "Muslim-type beard" to Hugh's defense is undeniable. In a trial at w h ich the major point of contention was the proper identification of the suspect, exhibit D -1 -A certainly had the potential to cast significant doubt on the validity of the only f o rm a l identification of Hugh that Hasan ever made.1 2 Specifically, Hugh's counsel a rg u e d in his closing statement that, given Hasan's description, the photographic line-up f ro m which she selected Hugh as one of the robbers was unduly suggestive: W e ll, you'll look at her report, ladies and gentlemen, I've marked it a s Exhibit [D-1-A], and in that report, ladies and gentlemen, you read it.

She says he had a Muslim-type beard. It's got a little chart for you here.

Because she also said he had nice hair. Of the eight people, we have to find the Muslim guy with nice hair.

W e ll, ladies and gentlemen, let's get rid of the non-Muslim beards, s h a ll we? Guy number one definitely has a Muslim-type beard. Guy n u m b e r two, my client, definitely has a Muslim-type beard. Guy number th re e , oh, that ain't a Muslim-beard, ladies and gentlemen. Guy number f o u r, he has a Muslim-type beard. Guy number five, ah you could say that w a s Muslim. . . .

...

. . . Guy number six, that is not a Muslim-type beard. Guy number s e v e n , possibly. And guy number eight, that is definitely not a Muslim-type b e a rd . I will let you make these opinions when you go in there.

S o now we've gone from eight to . . . five. Well, still, those odds a re n 't bad. 20 percent chance, okay? Well let's look at the guy. She said h e had nice hair. She remembers the nice hair, remember that? W h o 's got nice hair here? He doesn't have hair, so he's not going to b e getting Mr. Nice Hair award. He's got very well groomed hair. This g u y, we've already taken, yeah, we'll give him [nice] hair. He doesn't even h a v e hair on that picture, ladies and gentlemen. Okay. This guy, his hair is so short, how could you say he has nice hair? L a d ie s and gentlemen, I have conducted what? The process of e lim in a tio n .

...

I would ask you, ladies and gentlemen, to look at the page in my h a n d right now, it says, "Has[a]n." And I wrote process of elimination, b e c au s e that is what she testified to. She went through a process of e lim in a tio n . Just like I did. We didn't even have to see the man to do that.

And I've gone from eight to two.

A n d guess what she also said? He was very nicely groomed. He had b e a u tif u l hair. Of those two people, ladies and gentlemen, who gets the n ice groom award? I'll let you be the judge to that.

O u r Court has often had to examine the problems created by suggestive line-ups.

See, e.g., United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006); Thomas v. Varner, 428 F .3 d 491 (3d Cir. 2005). More generally, we have also noted that special care must be ta k e n in contexts like ours: "[T]he evidence was identification evidence. The dangers in h e re n t in such testimony have many times been commented upon. Foster v. California, 3 9 4 U.S. 440 (1969); Simmons v. United States, 390 U.S. 377 (1968); United States v. W a d e , 388 U.S. 218 (1967). Courts must scrutinize this type of evidence especially c a re f u lly; juries must to the same." United States v. Rabb, 453 F.2d 1012, 1014 (3d Cir. 1 9 7 1 ) (second emphasis added).

Rather than acknowledge the significance that exhibit D-1-A might properly play in the jury's decision, the District Court instead ruled that sending Hasan's statement to th e jury would give it "undue weight." This conclusion misses the mark.1 3 The situation h e re is analogous to a jury request to have portions of testimony read back, which we h a v e previously addressed. In Rabb we noted the possibility that "a reading of only one p o rtio n of the testimony may cause the jury to give that portion undue emphasis," but n e v e rth e les s concluded that [r]eading the transcript of the testimony of two . . . witnesses would not n e c es s a rily emphasize it or preclude consideration by the jury of the other te s tim o n y. In these circumstances, it must be assumed that the jury asked fo r a reading of this testimony because it was in doubt or in disagreement u p o n its proper evaluation.

Id . at 1013­14 (emphasis added). More generally, we went on to note with approval the p o s itio n advanced by the American Bar Association in its Standards Relating to Trial by J u r y , ABA PROJECT ON MINIMUM STANDARDS OF CRIMINAL JUSTICE § 5.2 & cmt. at 1 3 4 ­ 3 8 , which suggests that courts accede to the reasonable requests of jurors to review s p e c if ic evidence. Rabb, 453 F.2d at 1014­15 & n.1. As the Supreme Court of New J e rs e y has observed, [ w ]h e n a jury retires to consider their verdict, their discussion may produce d isa g re e m e n t or doubt or failure of definite recollection as to what a p a r tic u l a r witness said in the course of his testimony. If they request e n lig h te n m e n t on the subject through a reading of his testimony, in the a b se n c e of some unusual circumstance, the request should be granted. The tru e administration of justice calls for such action. Where there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial to an yo n e to have that doubt removed by a rehearing of his testimony. There is no need to be chary for fear of giving undue prominence to the testimony o f the witness. If under our system of trials a jury is to be considered in te llig e n t enough to be entrusted with powers of decision, it must be a ss u m e d they have sense enough to ask to have their memories stimulated o r refreshed only as to those portions of the testimony about which they are in doubt or disagreement.

S ta te v. Wolf, 207 A.2d 670, 675­76 (N.J. 1965); see also United States v. Hans, 738 F.2d 8 8 , 93 (3d Cir. 1984) (noting that a jury's request to see certain exhibits indicates their im p o rta n c e ); cf. United States v. McCarthy, 961 F.2d 972, 978 (1st Cir. 1992) (affirming trial judge's decision not to send an exhibit back to the jury, but noting that "[t]he jury did n o t request it"). The jury's request here similarly demonstrates the importance of exhibit D -1 -A in the context of this case, and it should have weighed heavily in favor of granting H u g h 's motion to reopen. For trial-by-jury to work properly, juries must be allowed the to o ls with which to do their job.1 4 C. E x p la n a tio n for the Failure to Introduce H u g h 's counsel did not offer an explicit justification for his failure to put exhibit D -1 -A in evidence, as the majority notes. See Maj. Op. at 6. But even a cursory e x a m in a tio n of the trial transcript tells why: Hugh's counsel did not understand that sim p ly marking an exhibit for identification does not make it part of the evidentiary re c o rd . See Appellant's App. at 528 ("[THE COURT]: [Exhibit D-1-A was] not moved in to evidence. So [it] will not go out. [DEFENSE COUNSEL]: Your Honor, I labeled [it] as [a] defendant's exhibit and gave [it] a number. THE COURT: Well, that doesn't m e a n [it is] in evidence."). Though this mistake was elementary, it was honest. It also p re s e n ts a paradigm case for the proper use of a motion to reopen. See Blankenship, 775 F .2 d at 740 (noting that reopening the record is often used to admit evidence "overlooked b y inadvertence"); cf. Parker, 73 F.3d at 54 ("[T]he excuse given, that defense counsel s im p ly made a mistake, seems reasonable and does not appear to be a subterfuge for se e k in g delay or unfair advantage."); Carter, 569 F2d at 803 (finding no abuse of d is c re tio n where the court allowed the Government to reopen the record and present e v id e n c e "inadvertently omitted from the case in chief"). Just as the Government can be p e rm itte d to reopen the record and introduce evidence necessary to support a conviction th a t was mistakenly not presented in its case-in-chief, see Blankenship, 775 F.2d at 740 (re f errin g to evidence needed to establish proper venue), so too should the defendant be a llo w e d to do the same when inadvertence has caused him to omit a document significant to his defense.

D. P r e ju d ic e to the Government T h e majority mentions the prejudice prong of the analysis--the "most important c o n sid e ra tio n ," Blankenship, 775 F.2d at 741--only in passing and only in general. See M a j. Op. at 6 ("[T]he government had no occasion to address [exhibit D-1-A] through te stim o n y, exhibits, or comments of counsel in closing."). The Government itself does n o t address the issue at all. But there is no mystery why this is so: despite the majority's c o n c lu so ry statement, there would have been no prejudice to the Government in re o p e n in g the record to admit exhibit D-1-A.

B o th Hasan and the police officer that recorded her statement were the G o v e rn m e n t's own witnesses. As such, the Government can hardly be heard to a r g u e -- a n d it never has--either that it did not know about Hasan's eyewitness d e s c rip tio n of the robbers or that the descriptions were somehow inaccurate. Cf.

B la n k e n sh ip , 775 F.2d at 741 (affirming the grant of motion to reopen, saying that the n o n -m o v ing party "could not have been surprised by the evidence"). Moreover, the jury h a d already been told of exhibit D-1-A's contents. Cf. Smith, 1994 WL 680999, at *1 (af firm ing grant of motion to reopen when the district judge had reasoned thus: "[T]here h a s already been testimony concerning [the evidence], so I will admit [it]. . . . I mean, th e jury has been told about [it]. . . . I don't think there is any prejudice to it. And the ju ry might very well wonder, want to see [it], and then we are left with that problem.").

The majority's claim that there was no occasion for the Government to address exhibit D1 -A in closing is simply not true. After defense counsel argued extensively during his c lo s in g statement that the jury should look critically at exhibit D-1-A (without G o v e rn m e n t objection 1 5 ), the Government had full opportunity to respond in its rebuttal c lo s in g statement. It did not. Given this, it is difficult to imagine how the Government w o u ld have been prejudiced by the introduction of exhibit D-1-A. The fact is that no p re ju d ic e was possible here, and the majority does not seriously attempt to argue o th e rw is e .

I I I . Conclusion C o n sid e rin g all of the factors relevant to this decision, the District Court should h a v e reopened the record and admitted exhibit D-1-A. It was admissible; reopening the re c o rd to admit it would not have disrupted the trial; it would have provided the jury with c ritic a lly important identification evidence--evidence that the jury specifically requested d e f en s e counsel's failure timely to introduce it was an honest (if elementary) mistake; and there would have been no appreciable prejudice to the Government in admitting it. In sh o rt, motions to reopen exist precisely for cases like this, and I believe the District Court a b u se d its discretion in denying Hugh's request.1 6 Perhaps most notable, though, is that th e Assistant U.S. Attorney trying this case never objected to Hugh's motion to reopen in th e first place. It is inconceivable to me that justice was served by depriving the jury of re le v a n t, highly probative evidence (not to mention the additional resources that have now b e e n spent in defending the decision).

It is no small matter to say that a district court's decision was an abuse of d is c re tio n . But the ease with which the jury's request could have been honored and the o b v io u s propriety and fairness in doing so lead me to conclude that the decision not to re o p e n qualifies. I would reverse Hugh's conviction and remand this case for a new trial.

Therefore, I respectfully dissent.

1 The second page of the record of the interview was marked Defendant's Exhibit D-1B for identification. However, the entire exhibit for identification will be referred to h e re in as "D-1-A."

2 Federal Rules of Evidence 801(c) and 801(d)(1) provide as follows: (c ) Hearsay. "Hearsay" is a statement, other than one made by the d e c lar a n t while testifying at the trial or hearing, offered in evidence to p ro v e the truth of the matter asserted. (d ) Statements which are not hearsay. A statement is not hearsay if ­ (1) Prior statement by witness. The declarant testifies a t the trial or hearing and is subject to cross-examination c o n c e rn in g the statement, and the statement is (A) in c o n sis te n t with the declarant's testimony, and was given u n d e r oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with th e declarant's testimony and is offered to rebut an express or im p lie d charge against the declarant of recent fabrication or im p ro p e r influence or motive, or (C) one of identification of a p e rs o n made after perceiving the person; . . .

3 We have admonished prosecutors for commenting during closing argument on facts n o t in evidence, including exhibits marked for identification but not entered into e v id e n c e . Gov't of Virgin Islands v. Rosa, 699 F.2d 121, 125-26 (3d Cir. 1983); United S ta te s v. Newman, 490 F.2d 139, 147 (3d Cir. 1974); United States v. LeFevre, 483 F.2d

4 7 7 , 479-80 (3d Cir. 1973).

7 Appellant's brief also suggests for the first time that D-1-A should have gone to the ju ry under the authority of Rule 613(b) pertaining to conditions for the admissibility of p rio r inconsistent statements. The only referenced inconsistent statement in D-1-A is the telle r's statement that she did not remember the pretext for the second robber's initial visit w h ic h is said to conflict with her testimony that she now remembers he was asking for $ 5 .0 0 in change. Even if the defense had cited this rule and offered only the single s e n te n c e of D-1-A, i.e., "I don't remember what he asked for, but he didn't cash a check," we would find no abuse in declining to reopen the record for such an inconsequential m a tter, particularly since the teller acknowledged the conflict. which in turn cited Thetford and Larson.

10 Federal Rule of Evidence 612 permits the introduction of writings used to refresh a w itn e s s 's recollection in preparing to testify. See FED. R. EVID. 612(2). The majority su g g e sts that writings may be introduced under Rule 612 only in order to call into q u e s tio n a witness's credibility. See Maj. Op. at 10­11. If the preliminary draft of the F e d e ra l Rules had been adopted, the majority would be correct; it provided that such e v id e n c e is admissible "for the purpose of affecting [a witness's] credibility." The re v is e d draft, however, omitted that phrase. This revision did spawn concerns with the a p p a re n t broadening of the Rule, but they related only to issues pertaining to privilege and th e Jencks Act and were dealt with in the Advisory Committee's Notes. In any event, th o s e concerns are irrelevant here. See 28 CHARLES ALAN WRIGHT & VICTOR JAMES G OLD, FEDERAL PRACTICE AND PROCEDURE, § 6181, at 432­42 (1993). Rather than being lim ite d to questions of credibility, the drafting history and text of Rule 612 instead stro n g ly suggest that it is applicable in cases such as this and, therefore, that the entirety o f exhibit D-1-A is admissible.

11 The majority would presumably fault Hugh as well for not raising redaction as a p o ss ib le solution. The simple response, as explained earlier, is that the District Court did n o t base its ruling on D-1-A's supposed hearsay character, but rather that the jury would g iv e it "undue weight." Redaction, of course, would not cure that supposed infirmity, and H u g h should not be faulted for failing to mention it. Moreover, district courts should not n e e d the assistance of counsel to suggest that a document be redacted to exclude in a d m is s ib l e hearsay--an easy and obvious remedy in situations like this.

12 Tellingly, the Government never asked Hasan to make an in-court identification of H u g h as the second robber.

13 The majority avoids addressing the issue by erroneously concluding that the District C o u rt did not base its decision on this ground. See Maj. Op. at 11.

14 It is important to bear in mind that a court's proper concern is not the added weight a ju ry may attach to a given piece of evidence in the abstract, but rather whether such added w e ig h t would be "undue." The evil to be avoided in sending exhibits to the jury is the p o s s ib ility that the jurors will believe that the judge deems a certain piece of evidence to b e particularly significant--an evaluation that is instead within the jury's sole purview. The valid concern present when courts usually decide whether to send an exhibit to the ju ry, therefore, is absent when the jury itself requests to see it. Here, had the District C o u rt simply admitted exhibit D-1-A and sent it back to the jury at the beginning of d e lib e ra tio n s along with all the other exhibits, there would have been no possibility that th e statement could have been given "undue" weight. Moreover, even if there were such a possibility, a cautionary instruction could have allayed most concerns in that regard. See Larson, 596 F.2d at 779 (reversing the defendant's conviction based on the district c o u rt's decision not to reopen the record for additional testimony, noting that "even a ss u m in g that the testimony might have derived undue emphasis from its appearance s u b s e q u e n t to all parties resting, a cautionary instruction by the trial judge might have re m e d ied that potential problem"); see also Parker, 73 F.3d at 54 ("It is clear to us that, w ith the proper cautionary instruction, the jury could have adequately weighed the ad d ition al testimony.").

15 The Government now attempts to characterize its failure to object as an exercise in p ro p e r courtroom etiquette. See Br. of Appellee at 14 n.2 ("[R]ather than interrupt d e f e n se counsel's closing argument, the [G]overnment allowed him to complete his c lo s in g without interruption, and then objected to sending the Interview Record to the ju ry as soon as given the opportunity by the court."). We normally call such silence, no m a tte r how polite, a "waiver."

16 Because I conclude that the District Court erred, I must also decide whether this was h a rm le s s . FED. R. CRIM. P. 52(a); Brink, 39 F.3d at 426. An error is harmless when "it is h ig h ly probable that [it] . . . did not contribute to the jury's judgment of conviction." United States v. Janotti, 729 F.2d 213, 220 n.2 (3d Cir. 1984). That is obviously not so in th is case. Most significantly, the jury specifically requested to see exhibit D-1-A; based o n that alone, one can only conclude that the jury's decision might have been different h a d its request been granted. Moreover, it would not be an overstatement to say that the b a la n c e of the Government's case against Hugh was weak. The other primary evidence a g a in s t him included (1) a partial fingerprint that a barely trained examiner using d iscred ited methods determined matched Hugh's and (2) testimony from Hugh's g irlf rie n d (who is schizophrenic and prone to hallucinations) about his supposedly (but n o t very) suspicious behavior in the days after the robbery. Any error here could not be h a r m le s s .