United States of America v. Linwood Ashton

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2008 Decided February 17, 2009
No. 07-3015
UNITED STATES OF AMERICA ,
APPELLEE
v.
LINWOOD ASHTON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00173-01)
Cheryl D. Stein argued the cause and filed the brief for
appellant.
Joseph P. Cooney, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth
Trosman, Assistant U.S. Attorneys.
Before: HENDERSON, ROGERS , and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.

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Opinion concurring in the judgment filed by Circuit
Judge ROGERS .
GRIFFITH, Circuit Judge: A jury convicted Linwood
Ashton of unlawful possession of phencyclidine (PCP) with
intent to distribute within 1000 feet of a school. Ashton
appeals his conviction, arguing that two rulings of the district
court improperly limited his ability to challenge the testimony
of the arresting officer on which the government’s case was
built. Finding no error, we affirm the judgment of the district
court.
I.
At around 4:30 p.m. on February 23, 2006, Metropolitan
Police Department Officers Millard Pitts and Charles Johnson
pulled over a light-colored Volkswagen in the 600 block of
7th Street NE, Washington, D.C., because they believed its
heavily tinted windows were in violation of District of
Columbia law. The stop occurred approximately 100 feet
from Ludlow-Taylor Elementary School. As the officers
approached the car, they smelled a strong chemical odor.
Officer Pitts also recognized the car’s driver, Linwood
Ashton, whom he had recently arrested for driving without a
license. The car’s other occupant, Andre Cole, was in the
front passenger seat. Officer Pitts told Ashton to show his
license, but the best Ashton could muster was a “D.C.
identification.” Trial Tr. 153 (Oct. 18, 2006). At that point,
the officers ordered Ashton and Cole to step out of the car.
While Ashton and Cole stood outside the car, Officer
Johnson reached in from the passenger’s side and grabbed a
black bag off the front passenger-side floor. At just that
moment, Officer Pitts, standing next to Ashton on the driver’s
side of the car, heard Ashton say, “That’s mine, not his.” Id.

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at 154–55. Inside the bag, the officers found small vials
containing a yellow liquid later identified as PCP residue. The
officers placed both Ashton and Cole under arrest and,
believing the vehicle might contain more narcotics, ordered a
K-9 unit to the scene. The K-9 alerted the officers to the hatch
of the car, where they found approximately 182 grams of PCP
and a second black bag containing nearly 100 grams of
marijuana. A later search of the area around the car’s gearshift
yielded six small Ziploc bags containing heroin. On June 15,
2006, a grand jury indicted Ashton on several counts,
including unlawful possession of PCP with intent to distribute
within 1000 feet of a school, unlawful possession of
marijuana with intent to distribute within 1000 feet of a
school, and unlawful possession of heroin.
Ashton’s jury trial began in the district court on October
18, 2006. The government offered testimony from Officers
Pitts and Johnson. Both described the circumstances of
Ashton’s arrest, and Officer Pitts told of Ashton’s statement at
the scene acknowledging as his the black bag Officer Johnson
found on the front passenger-side floor of the car. In defense,
Ashton presented the testimony of Christal Perry, who
explained that she dated Ashton’s cousin, Anthony
McPhatter, a known drug dealer who had been shot and killed
sometime before trial. It is unclear from Perry’s testimony
whether Ashton knew his cousin was a drug dealer. Perry did
say, however, that Ashton often borrowed a silver
Volkswagen owned by McPhatter. Perry also testified that she
learned of Ashton’s arrest from McPhatter. After work one
day, she heard McPhatter say to someone on his cell phone,
“[Ashton] got locked up in my car with my [drugs].” Trial Tr.
338 (Oct. 19, 2006). After the phone call, McPhatter told
Perry directly, “[Ashton] got locked up with my [drugs].” Id.

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On the second day of Ashton’s three-day trial, defense
counsel told the court for the first time that she wanted to call
Detective David Adams as a witness. At the time of trial,
Detective Adams was out on sick leave with pneumonia and
unavailable to testify. Counsel knew Detective Adams’s
identity approximately two weeks before trial when she
received a police document stating that Detective Adams had
interviewed Ashton at the police station after his arrest and
the interview had been videotaped. Ten days before trial,
counsel learned that the video equipment had malfunctioned
and no tape existed, but she made no attempt to secure
Detective Adams’s appearance at trial. Instead, she argued
that the trial should be delayed until Detective Adams
returned to health, citing Ashton’s Sixth Amendment right to
compulsory service.
According to what defense counsel argued to the district
court, Detective Adams would testify that during his
interview Ashton denied admitting to Officer Pitts that he
owned any of the recovered contraband. Detective Adams
would also testify that Ashton refused to answer any other
questions he tried to put to him. See id. at 304 (“[Detective
Adams] walked into the interrogation room and said, ‘I
understand you’ve already admitted possession of some of the
drugs in the car.’ And Mr. Ashton immediately said, ‘No, I
didn’t. That’s not true,’ refused to waive any of his rights and
submit to any interrogation.”). From this proffer, counsel
argued that a jury could infer that “it is not credible that
[Ashton] made a confession on the scene, when he was
completely unwilling to speak to anyone at the station and
refused to waive his rights, and immediately repudiated that
he had made the confession.” Id. at 305.
Defense counsel also moved to admit into evidence
Ashton’s PD-47 “Miranda rights card,” a document Ashton

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signed at the police station that put into writing the invocation
of his Miranda rights. Again, counsel claimed that Ashton
needed this document to rebut Officer Pitts’s testimony.
The district court denied both of Ashton’s requests,
stating, “[Y]ou’ve made your proffer” and “I’m not going to
permit you to put the PD-47 in, and I’m not going to stop the
trial until the officer gets well.” Id. at 306.
On October 23, 2006, the jury returned verdicts of guilty
on the PCP count and not guilty on the heroin count. The jury
was unable to reach a unanimous verdict on the marijuana
count. The district court sentenced Ashton to 97 months in
prison followed by six years of supervised release. Ashton
filed a timely appeal, claiming the district court’s rulings
violated his Fifth and Sixth Amendment rights. We have
jurisdiction under 28 U.S.C. § 1291 (2000).
II.
Ashton’s appeal challenges the district court’s exclusion
of his Miranda rights card from evidence and its refusal to
delay his trial to allow Detective Adams to testify. We review
both rulings for abuse of discretion. See United States v.
Akers, 702 F.2d 1145, 1149 (D.C. Cir. 1983) (reviewing
district court’s decision to exclude evidence for abuse of
discretion); United States v. Poston, 902 F.2d 90, 96 (D.C.
Cir. 1990) (reviewing district court’s decision to deny a
continuance for abuse of discretion). If we find error, we must
then ask whether it was harmless. See United States v.
Whitmore, 359 F.3d 609, 622 (D.C. Cir. 2004).
A.
Ashton argues that the district court erred in excluding

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his Miranda rights card from evidence. He contends that a
jury could infer from the card that he would not have made an
incriminating statement to the police at the scene of his arrest
when later at the police station he refused to answer questions
altogether.
We find no abuse of discretion in the district court’s
decision to exclude the Miranda rights card. Under the
Federal Rules, evidence is admissible only to the extent that it
is relevant. FED. R. EVID. 402. “‘Relevant evidence’ means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” FED. R. E VID. 401. Ashton asserts that the Miranda
card speaks to the probability that he admitted possession at
the scene of his arrest. But the fact that Ashton invoked his
Miranda rights only suggests that after he was transported to
the police station and had time to consider his situation, he
was unwilling to consent to custodial interrogation, at least
without the presence of a lawyer. See Miranda v. Arizona,
384 U.S. 436, 471–72 (1966). In its Miranda jurisprudence,
the Supreme Court has noted the significant difference in
circumstance between a statement made in an “interrogation
environment,” like that in which Ashton found himself at the
police station with Detective Adams, and a statement
volunteered while only in police custody, like that made when
Ashton was standing next to Officer Pitts. See id. at 457, 478;
see also Rhode Island v. Innis, 446 U.S. 291, 300 (1980).
Ashton’s decision to invoke his Miranda rights is thus of no
assistance in determining whether he made an unsolicited,
spontaneous statement at the scene, and any number of
reasons might explain Ashton’s differing temporal
propensities to admit possession. Accordingly, the district
court had discretion to exclude the Miranda rights card on the

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ground that it does not make the existence of any fact of
consequence more or less probable.
We also find no abuse of discretion in the district court’s
failure to explain its reasons for exclusion. To be sure, it
would have been better had the district court clarified the
basis for its decision. But when the party offering evidence
does not request that the court clarify its decision to exclude
that evidence, a reviewing court will sustain the exclusion on
any ground that the district court could have invoked. See 1
M CCORMICK ON EVIDENCE 260 (6th ed. 2006) (“When
evidence is excluded upon a mere general objection, the ruling
will be upheld, if any ground in fact existed for the exclusion.
It will be assumed, in the absence of any request by the
opposing party or the court to make the objection definite,
that it was understood, and that the ruling was placed upon the
right ground.” (quoting Tooley v. Bacon, 70 N.Y. 34, 37
(1877))); cf. United States v. Garrett, 720 F.2d 705, 710 (D.C.
Cir. 1983) (“It is well settled that ‘in reviewing the decision of
a lower court, [the decision] must be affirmed if the result is
correct although the lower court relied upon a wrong ground
or gave a wrong reason.’” (quoting SEC v. Chenery Corp.,
318 U.S. 80, 88 (1943)) (alteration in original) (internal
quotation marks omitted)). The district court had discretion to
find that the Miranda rights card was not relevant for
determining the likelihood that Ashton confessed at the scene
of his arrest, and thus it did not abuse its discretion in
excluding the card from evidence.
B.
Ashton next argues that the district court erred in refusing
to delay his trial so that he could secure the testimony of
Detective Adams. Again, we are not persuaded.

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“In short, ‘[a] trial judge enjoys great discretion in ruling
on a motion for a continuance.’” United States v. Gantt, 140
F.3d 249, 256 (D.C. Cir. 1998) (quoting Poston, 902 F.2d at
96) (alteration in original).1 In evaluating a criminal
defendant’s request for a continuance, trial judges must
balance the right of an accused to have compulsory service for
obtaining witnesses in his favor with the government’s
interest in seeing guilt or innocence promptly adjudicated.
United States v. Haldeman, 559 F.2d 31, 83 (D.C. Cir. 1976).
The ultimate question is whether a continuance is “reasonably
necessary for a just determination of the cause.” Neufield v.
United States, 118 F.2d 375, 380 (D.C. Cir. 1941). Although
“no firm rules can be articulated as to when a continuance is
required,” Haldeman, 559 F.2d at 83, we have found that trial
judges should consider, among other things, (1) the
defendant’s diligence in attempting to secure the evidence
before trial; (2) the length of the requested continuance and
the associated burden on the government; and (3) the
likelihood the evidence will be favorable and relevant to the
defense. See id. at 83–84; Neufield, 118 F.2d at 380.
Applying these factors, we conclude that the district court
was well within its discretion to deny Ashton’s request.
Defense counsel failed to make diligent efforts to secure
Detective Adams’s testimony before trial. Although Detective
Adams was identified to Ashton as the interrogating officer
approximately two weeks before trial, counsel first told the
1 We note that Ashton did not file a formal motion for a
continuance, but instead requested “an effort to find out when
[Detective Adams] would be available . . . .” Trial Tr. 304 (Oct. 19,
2006). The district court responded, “I’m not going to stop the trial
until the officer gets well.” Id. at 306. It is unclear, however, how
the court could have postponed trial without granting a continuance,
and neither party has provided clarification. As such, we treat
Ashton’s request as equivalent to a motion for a continuance.

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district court he was a necessary witness on the second day of
Ashton’s three-day trial. Prior to this time, counsel made no
attempt to obtain the detective’s testimony and explained to
us at oral argument that she saw no need for diligence in
ensuring the detective’s presence because the government
typically brings all relevant officers to trial. Oral Arg.
Recording at 11:54–12:05. Without passing on the
reasonableness of this assumption, we conclude that the
district court had no obligation to make accommodations for
counsel’s defense strategy at the expense of delaying trial.
Defense counsel also made no showing of the length of
the delay she needed to have Detective Adams testify. Rather,
she requested two days into trial that there “be an effort to
find out when [Detective Adams] would be available . . . .”
Trial Tr. 304 (Oct. 19, 2006). Because Detective Adams
would testify as a witness for the defense, the burden was on
Ashton to find out when his attendance at trial was a
possibility. Counsel responds, “How could I possibly know
when a police officer with pneumonia is going to be ready to
come back to court?” Oral Arg. Recording at 5:04. We
suggest she ask.
Finally, Detective Adams’s testimony is of little
importance to “a just determination of the cause,” Neufield,
118 F.2d at 380. As mentioned already, according to defense
counsel, Detective Adams would first testify that Ashton
refused to submit to interrogation at the station and then
would say that Ashton denied admitting the bag was his. See
Trial Tr. 304 (Oct. 19, 2006). Like the Miranda rights card,
testimony that Ashton refused to talk with Detective Adams is
simply not relevant. And again, Ashton is incorrect to argue
there is a logical inconsistency between his confession at the
scene and his denial at the stationhouse. One can think of
many reasons why Ashton would deny admitting ownership

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of the drugs at the police station after coming to grips with the
ramifications of his statement to Officer Pitts at the scene of
his arrest.
Ashton’s alleged out-of-court denial, which defense
counsel wanted to present through Detective Adams, would
have added little to Ashton’s case because it is unreliable.
After Officer Pitts testified to the admission at the scene,
Ashton was given the opportunity to conduct cross-
examination. The jury could consider Officer Pitts’s
credibility and demeanor and determine whether he was
telling the truth. But suppose Detective Adams testified to
Ashton’s statement at the police station. The jury could not
examine Ashton’s demeanor at the time the statement was
made and assess whether Ashton was telling the truth. The
best way to determine whether Ashton did in fact make an
admission at the scene was to do what the district court did
here: allow cross-examination of Officer Pitts, allow Ashton
to examine Officer Johnson, and allow Ashton to testify on
his own behalf.
III.
For the foregoing reasons, we hold that the district court
did not abuse its discretion in excluding Ashton’s Miranda
rights card or in refusing to delay his trial so that he could
present the testimony of Detective Adams. The judgment of
the district court is
Affirmed.

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ROGERS , Circuit Judge, concurring in the judgment: I write
to emphasize the limits of the court’s holding that the district
court did not abuse its discretion in denying a mid-trial
continuance to await Officer Adams’s testimony and in denying
admission of the Miranda rights card into evidence.
As appellant presents his appeal, he posits a tension
between his fundamental right to present a defense and the
district court’s discretion to control its calendar and to determine
whether evidence is relevant. That tension is not dispositive
here.
The Supreme Court explained in Washington v. Texas that:
[t]he right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain terms
the right to present a defense, the right to present the
defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the
truth lies. Just as an accused has the right to confront
the prosecution’s witnesses for the purpose of
challenging their testimony, he has the right to present
his own witnesses to establish a defense. This right is
a fundamental element of due process of law.
388 U.S. 14, 19 (1967); see In re Oliver, 333 U.S. 257, 273-74
(1948). At the same time, the district court enjoys broad
discretion regarding the manner in which a trial shall proceed.
See, e.g., United States v. Gantt, 140 F.3d 249, 256 (D.C. Cir.
1998); Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir.
1995) (citing Maurice Rosenberg, Judicial Discretion of the
Trial Court, Viewed From Above, 22 SYRACUSE L. REV . 635
(1971)). This court’s review of the district court’s determination
whether evidence is relevant is confined to assessing whether
there was an abuse of discretion, see United States v. Earle, 375
F.3d 1159, 1162 (D.C. Cir. 2004), as is review of the district

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court’s denial of continuance of a trial, United States v. Poston,
902 F.2d 90, 96 (D.C. Cir. 1990).
Given appellant’s theory of defense, it was within the
district court’s discretion to conclude that neither the officer’s
testimony nor the rights card were irrelevant and that each piece
of evidence could have bolstered appellant’s denial of making an
on-the-scene confession. Had appellant been allowed to proceed
as he requested, Officer Adams would have testified, according
to defense counsel’s proffer, that appellant denied making an on-
the-scene confession. Appellant then could have argued to the
jury that his action in not signing the rights card was consistent
with his denial.
On the other hand, as regards Officer Adams, appellant
cannot show an abuse of discretion in the refusal to delay trial
based on a request made on the second day of a three-day trial,
given defense counsel’s patent lack of diligence, including
failing to alert the district court of the need for the officer’s
testimony in advance of trial. Even were defense counsel’s lack
of diligence insufficient to support the denial of the continuance,
which it is not, see Natvig v. United States, 236 F.2d 694, 698
(D.C. Cir. 1956), the record shows appellant was not deprived of
the opportunity to present his defense by other means. Given the
relatively minimal probative value of Officer Adams’s proposed
testimony, its exclusion, assuming error, was not prejudicial, id.
Similarly, as to the rights card, appellant cannot show an abuse
of discretion in the denial of its admission given “the narrow
purpose the evidence would have served,” United States v.
Bailey, 319 F.3d 514, 519 (D.C. Cir. 2003). Appellant had the
opportunity to cross examine the officers regarding the on-the-
scene confession he denied making, and given the card’s
minimal probative value for purposes of supporting that denial,
appellant cannot show, assuming error, prejudicial error. See id.
Any error was harmless under either a constitutional or non-

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constitutional standard. See Chapman v. California, 386 U.S. 18,
24 (1967); Kotteakos v. United States, 328 U.S. 750, 764-65
(1946).
So understood, appellant cannot show the district court
abused its direction much less that, assuming error, he was
prejudiced. Consequently, this case presents no occasion for the
court to speculate on how a jury would, in fact, have viewed the
proffered evidence, Op. at 6, 9-10, or to impose a burden on
defense counsel to seek a statement of reasons from the district
court for its decision to exclude the evidence, Op. at 7. Such a
burden is unsupported by the cited precedent regarding “mere
general objection[s],” Op. at 7 (quoting MC CORMICK ON
EVIDENCE 260 (6th ed. 2006)), as counsel here stated reasons for
seeking admission of the evidence.

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