United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided October 17, 1997
No. 96-3024
United States of America,
Appellee
v.
Michael F. Davis,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00202-01)
Robert A. DeBerardinis, Jr. was on the briefs for appellant.
Eric H. Holder, Jr., U.S. Attorney at the time the brief was
filed, and John R. Fisher, Thomas J. Tourish, Jr., Steven D.
Mellin and Mary-Patrice Brown, Assistant U.S. Attorneys,
were on the brief for appellee.
Before: Silberman, Rogers, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: A U.S. Park Police officer stopped
defendant Michael Davis as he was leaving Hains Point Park
in Washington, D.C., in a car with a cracked windshield.
After Davis made repeated movements toward the underside
of the driver's seat, the officer ordered him to put his hands
on the steering wheel. When Davis nonetheless continued to
reach under the seat, the officer asked him to step out of the
car. A search under the seat produced a bag containing more
than 50 grams of crack cocaine, and Davis was charged with,
and ultimately convicted of, possession with intent to distrib-
ute cocaine base.
Defendant's appellate counsel cites three alleged errors
that his trial counsel apparently did not perceive. We do not
see them either. Although trial counsel's failure to object
would render these complaints subject to review only for
plain error, see Fed. R. Crim. P. 52(b), the standard of review
is not significant because we find the district court did not
commit any error at all.
I
Defendant first objects to an out-of-court viewing of the
car's cracked windshield, conducted by the district court in
order to determine the validity of defendant's claim that no
"reasonable [police] officer could have seen the crack in the
windshield before he stopped defendant's car," United States
v. Davis, 905 F. Supp. 16, 18 (D.D.C. 1995). Defendant does
not attack the viewing itself, but rather questions its verisimi-
litude, claiming that the judge improperly viewed the car
from 30 feet, rather than from 50 feet, the distance from
which the police officer viewed Davis' car at the time of the
stop. Defendant may well have waived this objection alto-
gether, as not only did his counsel not object to the conditions
of the viewing, but he arranged them, id. at 18; 11/9/95 Tr. at
109, 134, 139-40. In any event, there is no merit to this
objection, as the judge made clear that he understood the
difference between the 30- and 50-foot viewing distances, and
that he took it into account in drawing his conclusions, Davis,
905 F. Supp. at 18; 11/13/95 Tr. at 2. See United States v.
Gaskell, 985 F.2d 1056, 1060 (11th Cir. 1993) (conditions of
demonstration must afford a fair comparison, but need not be
identical to those of the actual event).
II
Second, Defendant objects on Sixth Amendment grounds to
the district court's refusal to permit cross-examination of the
arresting Park Police officer as to whether he had filed job
applications for drug-investigator positions. Defendant as-
serts that he was trying to prove the officer's bias--i.e., that
the officer wanted to make drug arrests in order to make his
job applications more competitive--and that the refusal to
permit such cross-examination violated his Sixth Amendment
right to confront the witnesses against him.
The Sixth Amendment does not require a trial court to
permit unlimited cross-examination by defense counsel, but
does require the court to give a defendant a "realistic oppor-
tunity to ferret out a potential source of bias." United States
v. Derr, 990 F.2d 1330, 1334 (D.C. Cir. 1993). See Delaware
v. Van Arsdall, 475 U.S. 673, 678-80 (1986). The test for a
violation is whether "[a] reasonable jury might have received
a significantly different impression of [the witness'] credibility
had [defense] counsel been permitted to pursue his proposed
line of cross-examination." Van Arsdall, 475 U.S. at 680.
In this case, the court did not bar all inquiry concerning the
officer's potential bias. To the contrary, it permitted consid-
erable cross-examination attacking the officer's credibility in
general, see, e.g., 11/14/95 P.M. Tr. at 53-68, as well as
questioning apparently intended to support defense counsel's
primary line of attack regarding bias: an allegation that the
officer was biased because of a desire to improve his career
standing by making numerous drug arrests, 11/14/95 P.M. Tr.
at 67-68, 71; see also 11/14/95 A.M. Tr. at 16-17 (opening
statement of defense theory). The court excluded only a
secondary elaboration on this line of attack--that the officer's
desire to improve his career standing included a further
desire to improve his chances to change jobs.
We agree with the government's characterization of the
truncated line of questioning as "only marginally relevant."
We cannot conclude that with further questioning along this
line, "[a] reasonable jury might have received a significantly
different impression of [the witness'] credibility," Van Ars-
dall, 475 U.S. at 680. Indeed, we cannot determine whether
such questioning would have left the jury with any impres-
sion at all, since defense counsel made no proffer, and there is
no evidence in the record, to suggest that the officer ever
filed such job applications. Cf. United States v. Martinez,
776 F.2d 1481, 1485-86 (10th Cir. 1985) (in light of defen-
dant's failure to make a record of what he would have shown
on cross-examination, the court has no way to determine
whether there was an abuse of discretion). Accordingly, we
cannot find that the district court committed constitutional
error in limiting cross-examination.
III
Finally, defendant objects to what he characterizes as
improper "lay opinion" testimony rendered at trial by his
friend, Aristede Rivers. Rivers was leaving Hains Point in a
separate car, ahead of the defendant, when he was pulled
over by another officer for running a stop sign. On direct
examination, Rivers admitted that when stopped, he falsely
denied knowing the defendant--even though the officer had
not told him that drugs had been found in Davis' car. Davis
argues that this amounted to testimony that it was Rivers'
"opinion" or "inference" that Davis had drugs in his car, in
contravention of the limits on lay opinion testimony in Fed. R.
Evid. 701.
Rule 701 imposes limits only upon lay testimony that is "in
the form of " opinions or inferences. Defendant's character-
ization of his friend's testimony here as constituting his
"opinion" or "inference" is unpersuasive. Rivers neither was
asked for, nor gave, an opinion on the question whether his
friend had drugs in the car. Nor did he testify as to any
inference he might have made regarding Davis' possession of
the drugs. Rivers merely conceded the fact that he had lied
about not knowing Davis. Although Rule 701 imposes limits
on a witness' testimony about his inferences, it does not
restrain the jury itself from drawing them. It is conceivable
that the jury could have inferred from Rivers' desire to put
distance between Davis and himself that Rivers, who had
been at the park with Davis and was leaving simultaneously,
knew his friend had drugs in his car and did not want to be
connected to them. This would be a weak inference, but not
an illogical one, and Rule 701 does not bar the jury from
making it.
Defendant's trial counsel not only did not object to Rivers'
testimony, but he had Rivers retestify to it on cross-
examination. Counsel apparently did this for the purpose of
supporting the defense's own theory that it was Rivers, not
defendant, who put the narcotics under the seat. 11/15/95 Tr.
at 111-12. The elicitation by the defense of the very testimo-
ny now challenged, not merely to make the best of a bad
situation but rather for its own affirmative purposes, is an
independent reason for finding no error in the content of
Rivers' testimony. Cf. United States v. Barela, 973 F.2d 852,
855 (10th Cir. 1992) (defendant "cannot complain on appeal
about evidence that he himself used in his defense"), cert.
denied, 506 U.S. 1069 (1993).
As we find no merit in any of Davis' allegations of error, we
affirm the judgment of conviction.