United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 3, 1998 Decided October 9, 1998
No. 97-3032
United States of America,
Appellee
v.
Larry D. Burch,
Appellant
Consolidated with
No. 97-3157
Appeals from the United States District Court
for the District of Columbia
(No. 95cr00225-01)
Gary E. Guy, appointed by the Court, argued the cause
and filed the briefs for appellant.
David B. Goodhand, Assistant United States Attorney,
argued the cause for appellee, with whom Wilma A. Lewis,
United States Attorney, John R. Fisher, Thomas J. Tourish,
Jr., M. Evan Corcoran and Carolyn K. Kolben, Assistant
United States Attorneys, were on the brief. Ann L. Rosen-
field, Assistant United States Attorney, entered an appear-
ance.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: On December 6, 1995, a jury convict-
ed Larry Burch ("Burch") of possession with intent to distrib-
ute more than 50 grams of cocaine base in violation of 21
U.S.C. ss 841(a)(1) and 841(b)(1)(A)(iii) (1994), while acquit-
ting him on a charge of conspiracy to distribute and to
possess with intent to distribute cocaine base in violation of 21
U.S.C. s 846 (1994). While the defendant's direct appeal was
pending, he petitioned for a writ of habeas corpus under 28
U.S.C. s 2255 (1996), alleging both ineffective assistance of
counsel and prosecutorial misconduct. The district court
judge who presided over the defendant's trial denied the
petition on November 7, 1997. An order of this court, dated
January 27, 1998, consolidated the defendant's direct appeal
with his subsequent petition for a certificate of appealability
under 28 U.S.C. s 2253 (1996), necessary to appeal the denial
of his s 2255 motion.
In this consolidated appeal, the defendant challenges his
conviction on the basis of alleged errors made by the district
court in (1) holding that the defendant had made a knowing
and voluntary waiver of his rights under Rule 11(e)(6) of the
Federal Rules of Criminal Procedure and Rule 410 of the
Federal Rules of Evidence, such that statements made during
his plea hearing and subsequent debriefing could be offered
into evidence by the prosecution; (2) allowing evidence of the
defendant's prior conviction for attempted cocaine distribu-
tion into evidence under Rule 404(b) of the Federal Rules of
Evidence; and (3) denying a motion to suppress the fruits of
an August 11, 1995 search by officers of the Metropolitan
Police Department on the grounds that its execution at 11:00
p.m. violated federal law. He further asserts that his trial
counsel was constitutionally ineffective for failing to seek a
judicial hearing to enforce the terms of a plea agreement
signed by appellant and the United States Attorney's Office,
and for failing to complete the impeachment of a government
witness. Finally, he alleges that the prosecutor knowingly
sponsored false or misleading testimony by the same govern-
ment witness, and that this instance of prosecutorial miscon-
duct materially affected the outcome of his trial.1 Finding no
merit in any of these claims, we affirm the conviction and
deny the request for a certificate of appealability.
I. Background
In August of 1995, a confidential informant notified the
Metropolitan Police Department ("MPD") that crack cocaine
was being sold out of a residence at 446 N Street in north-
west Washington, D.C. In order to verify the allegation, the
MPD arranged for this "special employee" to make a con-
trolled purchase of narcotics from that location.2 When the
purchased substance tested positive for cocaine base, MPD
Sergeant Gerald G. Neill procured a warrant that authorized
a search of the premises "in the daytime/at any time of the
day or night." Before executing the warrant at approximate-
ly 11:00 p.m., Sergeant Neill and his fellow officers set up and
observed a second controlled purchase. After the special
employee handed MPD funds over to a figure who then
retreated into the house, the police officers announced their
presence and proceeded to conduct their search.
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1 Appellant makes a number of further claims, none of which
warrant discussion.
2 In the typical controlled buy, police officers will give a special
employee money with which to make a narcotics purchase. After
first searching that individual to ensure that he has neither money
nor drugs on his person, the officers will give him police department
dollars and then observe the consummation of the intended transac-
tion. Upon the special employee's return, the officers conduct a
second search so as to verify that the police money has been
exchanged for narcotics.
Through the open front door, Sergeant Neill observed a
woman descending the interior staircase, before halting her
downward progress and sprinting back up the stairs. He
followed the woman into an upstairs bedroom, where he found
and, after a brief altercation, subdued both the woman--
Oneida Bailey ("Bailey")--and the defendant. At that time,
Sergeant Neill and the two other officers conducted their
search of the premises, discovering: plastic bags containing
rocks of crack cocaine packaged in an eighth of an ounce
quantities commonly referred to as "eight balls," smaller
rocks of crack cocaine wrapped in plastic bags, two ziploc
bags containing cocaine powder, other plastic bags of various
sizes, a razor blade, a scale, and eight hundred and thirty
dollars, which included the MPD funds used by the special
employee. In total, the MPD recovered 50.58 grams of
cocaine base and 1.16 grams of cocaine powder. From the
bedroom, the police also seized two photographs of the defen-
dant, as well as several forms of identification containing his
name and the 446 N Street address.
Following his arrest, Burch entered into plea negotiations
with members of the United States ("U.S.") Attorney's Office,
culminating in an October 25, 1995 agreement in which he
pled guilty to possession with intent to distribute more than
50 grams of crack cocaine, count two of his four-count indict-
ment. Burch also agreed to assist law enforcement authori-
ties whenever and in whatever form the U.S. Attorney's
Office deemed appropriate. In return, the government
agreed to request the dismissal of the other three counts of
the indictment, to allow the defendant's presentence release
into the community to assist in undercover operations, and to
inform the U.S. Attorney's Departure Guideline Committee of
the nature and extent of the defendant's cooperation. Should
the Departure Committee determine that the defendant had
rendered substantial assistance to the investigation and pros-
ecution of another individual, it would file a motion pursuant
to 18 U.S.C. s 3553(e) (1994) in order to allow the sentencing
judge to depart downwards from the federal sentencing
guidelines.
Burch, however, did not prove particularly cooperative,
despite being informed by the trial judge on several occasions
that he faced a mandatory minimum sentence of twenty years
if he did not provide some opening for a downward departure
by assisting the government. He did outline the history of
his involvement in narcotics distribution in a debriefing ses-
sion with the Drug Enforcement Agency ("DEA"), discussing
the identity of his sources as well as the quantities of crack
cocaine that he typically purchased from them, but not much
more. The defendant's name came up in relation to a homi-
cide in May and June of 1996 and, at the government's
request, the court revoked his bond and detained him pending
sentencing. When questioned about the homicide, Burch was
not forthcoming, and told a story which he subsequently
recanted. On July 22, 1996, the Assistant U.S. Attorney
supervising the case filed a memorandum with the Departure
Committee outlining the limited nature of Burch's coopera-
tion. Eight days later, the defendant's trial counsel filed a
motion seeking to withdraw the guilty plea and alleging
Burch's innocence of the underlying narcotics offense. In the
motion, as well as in an August 1, 1996 letter addressed to the
trial judge, Burch disavowed any knowledge of the drugs
prior to their discovery by the MPD, and asserted that the
cocaine belonged to Bailey. He explained his guilty plea as a
product of threats by Bailey to implicate him as a part of her
own cooperation agreement with the government, coupled
with a belief that a jury would be more likely to credit her
testimony over his denial, given his status as a young black
male with a prior arrest for possession with intent to distrib-
ute crack cocaine.3
After a hearing, the trial court judge ultimately allowed
Burch to withdraw his plea pursuant to Rule 32(e) of the
Federal Rules of Criminal Procedure. "Implausible as Mr.
Burch's belated claim of innocence may seem, the Court will
__________
3 Appellant was arrested on June 5, 1994, on the same block as
the 446 N Street residence, for possessing 18 ziploc bags containing
crack cocaine. He later pled guilty to attempted possession with
intent to distribute crack cocaine.
give Mr. Burch his day in court." Memorandum Opinion and
Order, United States v. Burch, Crim. No. 95-225-01, at 5-6
(D.D.C. Oct. 8, 1996) ("Mem. Op."). However, as part of its
decision, the court stated that it would not allow him to
benefit from Federal Rules of Criminal Procedure Rule
11(e)(6) and Federal Rules of Evidence Rule 410's restriction
on the admissibility of statements made pursuant to a with-
drawn plea. Id. at 6. In his plea agreement, as well as in a
Rule 11 colloquy with the trial judge prior to entering the
plea, Burch specifically had waived his rights under Rules
11(e)(6) and 410. In allowing him to withdraw the plea, the
trial court announced its intention to hold the defendant to
this part of the agreement. See id. at 6-7. The court
ultimately ruled that statements made by appellant during
the October 25, 1995 plea hearing and a January 22, 1996
debriefing with the DEA could be used as part of the
prosecution's case-in-chief, while those made during plea ne-
gotiations taking place on October 24, 1995 could only be used
for rebuttal or impeachment purposes should the defendant
contradict them while on the witness stand.
After a three-day trial, a jury convicted the defendant of
possession with intent to distribute more than 50 grams of
crack cocaine, while acquitting him of conspiracy to do the
same. The trial judge subsequently imposed a sentence of
one hundred fifty one months imprisonment, to be followed
by five years of supervised release.
II. Discussion
A.Appellant's Evidentiary Challenges
1.The Withdrawn Plea
a. Waiver
Federal Rule of Criminal Procedure 11(e)(6) and Federal
Rule of Evidence 410 each restrict the admissibility in a trial
of a guilty plea previously withdrawn, as well as any state-
ments made during the discussions leading up to such a plea.
Appellant challenges the legality of his waiver of these rights
as a part of his guilty plea, asserting that he entered into the
plea agreement involuntarily.4 Appellant contends that Bai-
ley threatened to testify against him, and that he feared a
trial wherein her false testimony could lead to his conviction
on all four counts of his indictment. To avoid this jeopardy,
he claims, he accepted the U.S. Attorney's offer to plead
guilty to a single offense. Before reaching the question of
the voluntariness of the plea, however, we must first deter-
mine whether and for what purposes an individual can waive
the protections contained in Rules 11(e)(6) and 410.
The Supreme Court provided a partial answer in United
States v. Mezzanatto, 513 U.S. 196, 201 (1995), where it held
that the "provisions of those Rules are presumptively waiva-
ble...." Since "[a] criminal defendant may knowingly and
voluntarily waive many of the most fundamental protections
afforded by the Constitution," id., the Court reasoned that
evidentiary rules should be subject to a similar presumption.
__________
4 Rules 11(e)(6) and 410 restrict the admissibility of "any state-
ment made in the course of plea discussions ...," which appellant
interprets to encompass the October 24th plea negotiations, the
October 25th plea agreement, and the January 22nd DEA debriefing.
Because the trial judge only admitted the plea agreement and the
debriefing statements into evidence as part of the prosecution's
case-in-chief, the discussion of extending United States v. Mezza-
natto, 513 U.S. 196 (1995), contained in this subsection only refers
to those two items, and not to the plea negotiations. Moreover, the
Eighth, Tenth, and Eleventh Circuits have each held that state-
ments made after a plea agreement is reached are not entitled to
the Rules' protections, see United States v. Watkins, 85 F.3d 498,
500 (10th Cir.), cert. denied, 117 S. Ct. 269 (1996); United States v.
Lloyd, 43 F.3d 1183, 1186 (8th Cir. 1994); United States v. Knight,
867 F.2d 1285, 1288 (11th Cir. 1989), reasoning that "[o]nce a plea
contract is formed, the policy behind Rule 11(e)(6)--to allow a
defendant to freely negotiate without fear that statements will be
used against him--is no longer applicable." Id. Interpreting an
earlier version of Rule 11(e)(6), before a 1979 amendment estab-
lished its current form, this court drew a similar distinction. See
United States v. Davis, 617 F.2d 677, 685 (D.C. Cir. 1979). Here,
since we conclude that appellant waived the protections extended by
Rules 11(e)(6) and 410, we need not determine whether they would
While evidence of fraud or coercion can invalidate waiver
agreements, "absent some affirmative indication that the
agreement was entered into unknowingly or involuntarily, an
agreement to waive the exclusionary provisions of the plea-
statement Rules is valid and enforceable." Id. at 210.
As expansive as this language sounds, the Supreme Court
faced a narrower question in Mezzanatto than that which we
confront today. There, the prosecutor had required, as a
precondition to conducting plea negotiations, that the accused
agree to allow the use of any statements made over the
course of their discussions to impeach any contradictory
testimony given in the case of a trial. When the negotiations
faltered, the government prosecuted Mr. Mezzanatto for pos-
session with intent to distribute methamphetamine, and he
took the stand as part of his defense. On direct examination,
Mezzanatto denied having knowledge that the package he
sold to an undercover officer contained methamphetamine.
On cross-examination, and later with rebuttal witnesses, the
prosecutor impeached this testimony with Mezzanatto's state-
ments made during the plea negotiations. See id., at 198-99.
On appeal, then, the Supreme Court only had to decide
whether the protections contained in Rules 11(e)(6) and 410
could be waived for purposes of impeachment or rebuttal. In
the case at bar, by contrast, the district court allowed the
defendant's plea statement, as well as the conversations he
had during the January 22nd debriefing session with the DEA,
into evidence as a part of the prosecution's case-in-chief. See
12/4/96 Trial Tr. at 29-30.
Although we face here the additional question of whether a
defendant's Rule 11(e)(6) rights can be waived for purposes of
the prosecution's case-in-chief, our inquiry still begins with
Mezzanatto. Justice Thomas' opinion paints with broad
brush strokes, and its reasoning resonates beyond the precise
question upon which it ruled. In a one paragraph concurring
opinion, Justice Ginsburg, joined by Justices O'Connor and
Breyer, cautioned that the Mezzanatto decision did not ad-
dress the question of whether a waiver of Rule 11(e)(6) for
purposes of the prosecution's case-in-chief would be valid.
The concurrence raised the question of whether "a waiver to
__________
cover the January 22nd debriefing session, which occurred after the
plea agreement had been reached.
use such statements in the case-in-chief would more severely
undermine a defendant's incentive to negotiate," 513 U.S. at
211 (Ginsburg, J., concurring), than the waiver for impeach-
ment purposes sanctioned by the Court's decision, thereby
presenting a more pressing public policy justification for
disallowing a presumption of waivability.
On reflection, however, we cannot discern any acceptable
rationale for not extending the majority opinion in Mezzanat-
to to this case. Justice Thomas' opinion rests on three
principles. First, it finds that in the absence of an affirmative
indication that Congress intended to preclude or to limit the
waiver of statutory protections, including evidentiary rules,
voluntary agreements to waive these protections are pre-
sumptively enforceable. See Mezzanatto, 513 U.S. at 201-02.
Second, the opinion rejects the argument that Rules 11(e)(6)
and 410, as well as the Advisory Committee's Notes which
accompany them, express congressional disfavor towards
waivability. See id. at 208 n.5. Finally, the opinion stresses
that in weighing whether to override a presumption of waiva-
bility, a court should assess the public policy justifications, if
any, which counsel in favor of departing from that norm. See
id. at 204-10. Cumulatively, we believe these principles do
not countenance drawing any distinction in this case between
permitting waivers for purposes of impeachment or rebuttal
and permitting waivers for the prosecution's case-in-chief.
There are two arguments in favor of restricting the reach
of Mezzanatto to rebuttal and impeachment. They go like
this: First, in enacting Rules 11(e)(6) and 410, Congress has
signaled an intent to create rights that benefit both the
accused and the federal judicial system. Although most
personal rights are presumptively waivable, when rights
serve as a surrogate for protecting institutional interests, the
economic model of bargaining, see United States v. Wenger,
58 F.3d 280, 282 (7th Cir. 1995) ("Right holders are better off
if they can choose between exercising the right and exchang-
ing that right for something they value more highly.") does
not suffice. The Advisory Committee's Notes reference both
individual and systemic concerns, describing the purposes
behind the two rules as not to "discourage defendants from
being completely candid and open during plea negotiations,"
and "to permit the unrestrained candor which produces effec-
tive plea discussions." Fed. R. Crim. P. 11 Advisory Commit-
tee's Note (1979) (internal citations omitted). If extending
Mezzanatto would undermine Congress' attempt to promote
candid plea discussions, deference to congressional intent
could counter the presumption of waivability. We think that
there is a ready answer to this argument: the Mezzanatto
Court declined to read the Notes as mandating any default
rule against waiver, a position that Justice Souter staked out
in dissent. See 513 U.S. at 214 (Souter, J., dissenting) ("Since
the zone of unrestrained candor is diminished whenever a
defendant has to stop to think about the amount of trouble his
openness may cause him if the plea negotiations fall through,
Congress must have understood that the judicial system's
interest in candid plea discussions would be threatened by
recognizing waivers under Rules 410 and 11(e)(6)."). Accord-
ing to the Court, "[t]he Advisory Committee's Notes always
provide some policy justification for the exclusionary provi-
sions in the Rules, yet those policies merely justify the default
rule of exclusion; they do not mean that the parties can never
waive the default rule." Id. at 208 n.5. Since the Supreme
Court has already rejected congressional intent to promote
candor as a justification for refusing to enforce voluntary
waivers of these Rules in rebuttal, any argument relying on
that intent is too weak to justify refusing to allow use of the
plea statement in the government's case-in-chief. In any
event, the waiver in this case was part of the plea agreement;
it resulted from successful plea negotiations. During the
negotiations, the defendant was protected by Rules 11(e)(6)
and 410. Thus, it is difficult to see how the waiver in this
case could have reduced the "zone of unrestrained candor"
during negotiations, as the waiver in Mezzanatto, which was
secured by the prosecutor at the start of bargaining, arguably
did.
Second, while it is conceivable that sanctioning waivers for
the use of statements made during plea proceedings in the
prosecution's case-in-chief, as opposed to impeachment or
rebuttal, could have a markedly greater impact on the willing-
ness of defendants to participate in such negotiations, the
three-Justice concurrence in Mezzanatto presents no reason
why that would be the case. Nor has the appellant. Lacking
any evidence to the contrary, it seems unlikely to us that
most defendants would draw fine distinctions as to whether
statements made in the course of or after the plea proceeding
could be used in the government's case-in-chief or only in
rebuttal. It is true that the three concurring Justices in
Mezzanatto, whose votes were necessary for the majority,
expressed concern that admitting plea negotiation statements
in the case-in-chief would too severely undermine the defen-
dant's incentives to negotiate. See id. at 211. Such concern
is far less warranted with respect to a waiver, like the one in
this case, which is executed as a result of plea negotiations,
rather than as a condition for such negotiations. In any event,
allowing the government to bargain for a waiver during plea
negotiations certainly does not undermine the reliability of
the fact-finding process, the only institutional concern cited
by Mezzanatto as a potential counterweight to the presump-
tion in favor of waivability. See id. at 204 (some evidentiary
provisions are so fundamental that permitting their waiver
would discredit the integrity of the federal judicial process;
"if the parties stipulated to trial by 12 orangutans the defen-
dant's conviction would be invalid notwithstanding his con-
sent") (citations omitted). As a result, we can discern no
reason not to uphold the trial judge's ruling in this case that a
defendant can waive his rights under Rules 11(e)(6) and 410
to the extent of allowing statements made in the plea pro-
ceeding itself and in a subsequent debriefing to be used as
part of the prosecution's case-in-chief.
b. Knowing and Voluntary
Having decided that a defendant can affirmatively waive his
rights under Rules 11(e)(6) and 410 to allow his plea state-
ment to be admitted into evidence, we move on to appellant's
more basic contention that his waiver was involuntary. Be-
fore any waiver can be deemed unenforceable, Mezzanatto
held that a trial judge must find "some affirmative indication
that the agreement was entered into unknowingly or involun-
tarily." Id. at 210. For this indication, appellant relies on
the district court's decision to permit him to withdraw his
plea, alleging that it represents an implicit finding of involun-
tariness.5 The district court, however, gave no such indica-
tion. It characterized appellant's belated assertion of inno-
cence as both "implausible" and "hard to accept," Mem. Op.
at 5, and decided to grant him the opportunity to present his
case before a jury primarily because a trial represented
appellant's "only chance to avoid the draconian sentence
adopted by Congress for possession of crack cocaine by one
previously convicted of a drug offense." Id. at 6. Moreover,
it specifically warned him that it would allow all of appellant's
plea statements into evidence for impeachment, rebuttal, or
the case-in-chief in any future trial, an act that belies any
view that the plea or the waiver were coerced.
"This court reviews a trial judge's admission of evidence for
abuse of discretion," United States v. Smart, 98 F.3d 1379,
1386 (D.C. Cir. 1996), cert. denied, 117 S.Ct. 1271 (1997)
(citing United States v. Salamanca, 990 F.2d 629, 637 (D.C.
Cir.), cert. denied, 510 U.S. 928 (1993)); that standard is
easily satisfied here. Neither the Rule 11 plea colloquy
between the trial judge and appellant, nor the judge's order
permitting appellant to withdraw the plea, support in any way
appellant's contention that the plea itself was entered into
involuntarily. The trial court asked the appellant "has any-
body threatened you or forced you in any way to enter this
plea of guilty?" 10/25/95 Tr. at 17. "And are you pleading
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5 Appellant's specific contention that he involuntarily waived the
protections of Rules 11(e)(6) and 410 derives from his broader claim
that he did not enter into the plea agreement voluntarily. He
makes no attempt to deconstruct the plea agreement into individual
components, nor to claim that he acceded to a particular provision
involuntarily, independent of his intention with respect to the entire
plea. Therefore, we can only review whether his waiver was
knowing and voluntary through examining, as the trial court did,
the nature of the plea agreement that subsumes it. By contrast,
the waiver addressed in Mezzanatto had been negotiated separate-
ly, before the plea discussions began. Therefore, the Mezzanatto
Court could focus specifically on the voluntary nature of the waiver
of the nonadmissibility guarantees.
guilty voluntarily and because you are guilty?" Id. at 19.
Appellant answered both questions in the affirmative. The
trial judge also went through the specific terms of the plea
agreement with appellant, including the provision in which he
waived his rights under Rules 11(e)(6) and 410. When subse-
quently challenged, the judge characterized appellant's waiver
of his rights under Rules 11(e)(6) and 410 as "knowing and
voluntary," Mem. Op. at 7, and rejected the defendant's
motion to suppress on the grounds that "[t]here was nothing
wrong with the plea proceeding. There was nothing wrong
with [appellant's] understanding of what was going on. He
made the statements. He made those statements under
oath." 12/3/96 Trial Tr. at 75. The extensive colloquy con-
ducted by the trial court clearly supports this determination
that appellant knowingly and voluntarily waived his rights
under Rules 11(e)(6) and 410. In no way could such a
decision to permit the plea statement and the debriefings into
evidence constitute an abuse of discretion.
Our ruling is in accord with our own precedent. In United
States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995), the defendant
sought to withdraw his plea as the product of coercion due to
a co-defendant's alleged threats to testify against him in
return for a lesser sentence. See id. at 1205. We refused to
characterize the plea as involuntary, explaining that before
accepting his guilty plea, the trial court judge had conducted
a "textbook Rule 11 inquiry, taking pains to insure that the
defendant's submissions were knowing and voluntary." Id. at
1208. Since the trial judge's voluntariness determination
ultimately rested upon a credibility finding, this court refused
to disturb it absent clear evidence to the contrary. Id. at
1209 (citing the clearly erroneous standard utilized in United
States v. Lloyd, 868 F.2d 447, 451 (D.C. Cir. 1989)). See also
United States v. Hernandez, 79 F.3d 1193, 1195 (D.C. Cir.
1996) (where the trial court conducted an extensive Rule 11
colloquy and a hearing on the defendant's plea withdrawal
motion, there is no reason to cast doubt on the court's
conclusion that the plea was voluntary); United States v.
Woolley, 123 F.3d 627, 632-34 (7th Cir. 1997) (extensive and
careful Rule 11 colloquy conducted prior to accepting defen-
dant's guilty plea fully supports determination that defendant
accepted plea knowingly and voluntarily); United States v.
Clements, 992 F.2d 417, 418-19 (2d Cir. 1993) (extensive Rule
11 allocution fully established the voluntariness of defendant's
plea).
2.Prior Bad Acts
Appellant also challenges the district court's denial of his
motion in limine to exclude evidence of his prior arrest and
conviction for attempted possession with intent to distribute
crack cocaine, arguing that this "other crimes" evidence was
both irrelevant to the charges against him and more prejudi-
cial than probative. In addressing trial court determinations
on the admissability of bad acts evidence under of the Feder-
al Rules of Evidence, this circuit has employed a two-step
mode of analysis. Under the first step, which addresses Rule
404(b), "we must determine whether the evidence is relevant
to a material issue other than character." United States v.
Mitchell, 49 F.3d 769, 775 (D.C. Cir. 1995) (citations omitted).
See also Huddleston v. United States, 485 U.S. 681, 686
(1988) ("The threshold inquiry a court must make before
admitting similar acts evidence under Rule 404(b) is whether
that evidence is probative of a material issue other than
character."). "If so, we proceed to the second inquiry," under
Federal Rule of Evidence 403, "whether the probative value
is substantially outweighed by the prejudice." Mitchell, 49
F.3d at 775.
Here, appellant was tried for possession with intent to
distribute more than 50 grams of crack cocaine and conspira-
cy to possess and distribute the same. To establish the
requisite elements on the possession count, the government
needed to prove that appellant possessed crack cocaine know-
ingly and intentionally, and that when he possessed the
cocaine he had a specific intent to distribute it. See 21 U.S.C.
s 841(a)(1). In making the Rule 404(b) determination, the
trial judge concluded that "[t]he fact is that the evidence [of
appellant's prior conviction] is relevant to show knowledge
and intent which are elements that the Government must
prove.... It's within the very same block and it involved
again crack cocaine. And his knowledge and intent with
respect to crack cocaine is what is at issue here." 12/3/96
Trial Tr. at 42. Since the evidence of appellant's prior
conviction went beyond the issue of character, and went to
the issues of knowledge and intent which formed the basis of
appellant's trial defense, the prior conviction satisfies the first
step of the Mitchell analysis. See United States v. Harrison,
679 F.2d 942, 948 (D.C. Cir. 1982) ("The intent with which a
person commits an act on a given occasion can many times be
best proven by testimony or evidence of his acts over a period
of time prior thereto...."); United States v. Crowder, 141
F.3d 1202, 1208 n.5 (D.C. Cir. 1998) (in banc) ("A defendant's
hands-on experience in the drug trade cannot alone prove
that he possessed drugs on any given occasion. But it can
show that he knew how to get drugs, what they looked like,
where to sell them, and so forth.").
The second step of the analysis takes place under Rule 403,
and involves balancing the probative value of other crimes
evidence against its prejudicial effect upon the defendant.
See Fed. R. Evid. 403. Because this balancing involves a
highly subjective assessment, this court conducts its review
under a "grave abuse of discretion" standard. See Mitchell,
49 F.3d at 776. Here, the trial judge was clearly aware of the
potential danger for "jury misuse of the evidence," United
States v. Brown, 490 F.2d 758, 764 (D.C. Cir. 1973), and
crafted a careful limiting instruction to guide the jury away
from drawing a conclusion on the basis of character or
propensity. Given the likeness of the allegations, the similar
mode of packaging the crack cocaine for distribution, the
coincidence of the locations involved, and the corroboration
provided by appellant in his debriefing session with the DEA,
there is "no compelling or unique evidence of prejudice in this
case that warrants upsetting the trial court's determination."
United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir.
1992).
B.The Validity of the Warrant as Executed
Appellant also challenges the trial court's decision to permit
the fruits of the MPD search into evidence, attacking the
legal validity of both the underlying warrant and its nighttime
execution. While appellant contends that the validity of the
warrant's execution must be measured against federal stan-
dards because "a federal offense has been charged and the
trial was held in federal court," Appellant's Br. at 28, we need
not decide whether the warrant is federal or local, nor need
we choose between the federal and the local law standard to
measure the legality of its execution. The warrant and its
nighttime execution were valid under either regime.
Beginning with federal law, Rule 41 of the Federal Rules of
Criminal Procedure directs that a "warrant shall be served in
the daytime, unless the issuing authority, by appropriate
provision in the warrant, and for reasonable cause shown,
authorizes its execution at times other than daytime." Fed. R.
Crim. P. 41(c)(1). See also Fed. R. Crim. P. 41(h) (defining
"daytime" as "the hours from 6:00 a.m. to 10:00 p.m. accord-
ing to local time"). Nevertheless, in the face of a specific
statutory regime for an articulated class of offenses, the
general provisions contained in Rule 41 are displaced. See
United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997)
(holding that s 879 governs search for marijuana, rather than
Rule 41); Mason v. United States, 719 F.2d 1485, 1489 (10th
Cir. 1983) (interpreting Wyoming parallels to Rule 41 and
s 879 such that the specific statutory provisions sanctioning
nighttime search for controlled substances apply); United
States v. Alatishe, 616 F. Supp. 1406, 1411 (D.D.C. 1985)
("Where there is a specific statute relating to the issuance
and execution of search warrants, that particular statute as a
general matter controls over any more diffuse search warrant
legislation or policy."). This case provides an example.
21 U.S.C. s 879 instructs that a "search warrant relating to
offenses involving controlled substances may be served at any
time of the day or night if the judge or United States
magistrate issuing the warrant is satisfied that there is
probable cause to believe that grounds exist for the warrant
and for its service at such time." In Gooding v. United
States, 416 U.S. 430 (1974), the Supreme Court addressed the
interaction between Federal Rule of Criminal Procedure 41
and then 21 U.S.C. s 879(a).6 After noting that Rule 41 had
been amended subsequent to the passage of s 879(a), the
Court went on to hold that "Congress, as it had in the earlier
version of the Rule, nevertheless showed its clear intention to
leave intact other special search warrant provisions, includ-
ing, of course, the provisions relating to searches for con-
trolled substances." Id. at 453-54.
The Gooding Court confronted a fact pattern analogous to
the present case. There, an Assistant United States Attor-
ney had sought a warrant authorizing a search for narcotics,
and in support of his application presented an affidavit signed
by an undercover MPD officer alleging knowledge of the
possession and sale of drugs. The defendant challenged the
validity of the warrant for a search "at any time in the day or
night," 416 U.S. at 442, alleging that the magistrate failed to
make a special showing of need for its nighttime execution.
In the present case, appellant similarly reads the final clause
of s 879--requiring "that there is probable cause to believe
that grounds exist for the warrant and for its service at such
time"--as creating an obligation on the part of the govern-
ment to establish probable cause for a nighttime search.
While this certainly constitutes a plausible reading of the
statutory language, the Supreme Court has explicitly rejected
it. Speaking directly to the issue, the Court concluded "that
21 U.S.C. s 879(a) requires no special showing for a night-
time search, other than a showing that the contraband is
likely to be on the property or person to be searched at that
time." Id. at 458.7 Just as the prior controlled buy provided
__________
6 A 1974 amendment to 21 U.S.C. s 879(a) struck out the designa-
tion (a); the statutory provision at issue in Gooding and in the
present case are identical. See Pub. L. No. 93-481, s 3, 88 Stat.
1455 (1974).
7 In the present case, the district court judge assumed that in the
absence of a finding of time-related probable cause, a nighttime
search for narcotics could only be valid under District of Columbia
law. While the district court judge believed that a search pursuant
to 21 U.S.C. s 879 required that "an additional finding must be
made by the Magistrate before authorizing a nighttime execution of
the requisite "showing" in Gooding, so too does the previous
purchase of crack from the 446 N Street residence legitimate
the MPD's subsequent nighttime search under federal law.
Under District of Columbia law, the analysis comes out the
same. The District of Columbia Code parallels federal law, in
that it contains a background warrant provision in Title 23
s 521,8 as well as a particular provision directed at controlled
substances in Title 33 s 565.9 In United States v. Thomas,
294 A.2d 164, 167-68 (D.C. 1972), cert. denied, 409 U.S. 992
(1973), the District of Columbia Court of Appeals determined
that the specific provisions contained in Title 33 of the D.C.
Code are neither superceded nor qualified by the more
general provisions contained in Title 23. As both the warrant
in question and its underlying affidavit each assert a belief
that cocaine is being sold from the premises at 446 N Street,
the more specific provisions contained in D.C. Code
s 33-565(h) would apply. Moreover, the District of Columbia
Court of Appeals has also held that "once a judge has
determined that probable cause exists to search for drugs in
the District of Columbia, a search warrant may be issued.
Such a warrant may be executed at any time of the day or
night." Hines v. United States, 442 A.2d 146, 148 (D.C.
1982).10 According to the Court of Appeals, once a probable
__________
a warrant," 12/3/96 Trial Tr. at 66-67, Gooding specifically holds to
the contrary.
8 "A search warrant shall contain ... a direction that the warrant
be executed during the hours of daylight or, where the judicial
officers have found cause therefor, including one of the grounds set
forth in section 23-522(c)(1), and authorization for execution at any
time of day or night." D.C. Code Ann. s 23-521(f)(5) (1997).
9 "The judge or Magistrate shall insert a direction in the warrant
that it may be served at any time in the day or night." D.C. Code
Ann. s 33-565(h) (1997).
10 In Hines, a warrant office clerk, acting without instructions,
crossed out the 'at any time of the day or night' provision on the
warrant form. The Court of Appeals held that this inadvertent
ministerial mistake did not render the subsequent nighttime search
invalid. Id. at 149.
cause determination has been made, the issuing judge must
insert the "any time during the day or night" directive. "The
language [of D.C. Code s 33-565(h)] is mandatory." Id. at
149.
As both federal and local law specifically provide for night-
time narcotics searches, appellant's argument stands or falls
on its contention that the ambiguity resulting from Sergeant
Neill's failure to cross out the warrant's "daytime" clause
renders it invalid. Since neither of the potentially applicable
standards contain a time restriction, we do not believe that
this ministerial oversight in any way undermines the war-
rant's validity. Additionally, Sergeant Neill acted in good
faith. His belief, as the district court found it, "that he could
execute it at any time of the day or night since this was a
drug warrant ...," 12/3/96 Trial Tr. at 60, satisfies the
"objectively reasonable" test articulated in United States v.
Leon, 468 U.S. 897, 922 (1984).
C.Appellant's Petition for a Certificate of Appealability
Under 28 U.S.C. s 2253(c)(1)(B), an appeal cannot be taken
from a final order in a s 2255 habeas corpus proceeding
unless a circuit judge issues a certificate of appealability. 28
U.S.C. s 2253(c)(2) provides that a certificate may issue "only
if the applicant has made a substantial showing of the denial
of a constitutional right."
1.Ineffective Assistance of Counsel
In his s 2255 habeas corpus proceeding, appellant main-
tained that his trial counsel failed to satisfy the constitutional-
ly prescribed minimum standard for effectiveness. He con-
tinues to press this claim in his petition for a certificate of
appealability, challenging his counsel's failure: (i) to seek
enforcement of the contractual plea agreement between ap-
pellant and the government, or at the very least to seek an
evidentiary hearing through which appellant could establish
that the government's refusal to file a 5K1.1 motion constitut-
ed a breach; and (ii) to complete the impeachment of Oneida
Bailey with the notes from her debriefing session with the
DEA. Because neither of these alleged inadequacies, wheth-
er considered individually or in aggregate, suffice to establish
a claim for constitutional ineffectiveness under the standard
articulated in Strickland v. Washington, 466 U.S. 668 (1984),
we decline to issue a certificate of appealability for appellant's
Sixth Amendment claim.
In Strickland, the Supreme Court advised reviewing courts
that they need not undertake both components of the ineffec-
tive assistance inquiry should it prove possible to dispose of a
challenge on either of its prongs. See id. at 697. Appellant's
first assertion, that trial counsel should have sought to en-
force the plea agreement, falters in its inability to make the
requisite showing of prejudice--"that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at
694. A cursory comparison of the plea agreement's terms
with the actions taken by the U.S. Attorney's Office reveals
that the government fulfilled all of its responsibilities under
it.11 In particular, sections 9(d) and (e) provide that the
prosecutor "will inform the Departure Guideline Committee
of the United States Attorney's Office for the District of
Columbia the nature and extent of [appellant's] cooperation,
or lack thereof," and that he will file a motion pursuant to 18
U.S.C. s 3443(e) and s 5K1.1 of the federal sentencing guide-
lines should the Departure Committee determine "that [ap-
pellant] had provided substantial assistance in the investiga-
tion or prosecution of another person who has committed any
offense...." Appellee's App. at 022-23. The Assistant U.S.
Attorney involved in appellant's prosecution filed papers to
apprise the Departure Committee of appellant's progress, and
the Committee declined to authorize that any such motion be
filed with the court. Because the government complied with
__________
11 The plain language of the plea signed by Burch makes it clear
that he himself breached the agreement, first by failing to "cooper-
ate truthfully, completely and forthrightly with [the U.S. Attor-
ney's] Office and other Federal, state and local enforcement author-
ities whenever, wherever, and in whatever form this Office deems
appropriate,"--as required by section 3(a) of the plea--and later by
filing a motion to withdraw his plea--an act which section 5(a)
defines as a breach of the agreement. See Appellee's App. at 20-21.
the terms of the plea agreement, no effort by appellant's
counsel could have obtained an order for specific perfor-
mance.
Appellant next faults his trial counsel for failing to impeach
Bailey with notes from a DEA debriefing session. At trial,
appellant's defense centered around the argument that the
drugs recovered by the MPD belonged to Bailey. In addition
to so testifying, appellant developed this theory by arguing
that he no longer resided at the 446 N Street residence in
August of 1995, that the bedroom in which the cocaine was
discovered belonged to Bailey, that she had made numerous
drug sales earlier that day, and that she had recently pur-
chased a quantity of cocaine similar to the amount recovered
by the MPD. Notes from Bailey's DEA debriefing session
provided some support for the last contention, in that they
contained an entry, under the heading "Phil ... Source of
supply," that reads "62 grams--the most she's gotten from
him." Appellant's App. at 151. When cross-examining Bai-
ley, appellant's trial counsel repeatedly asked whether she
had ever obtained 62 grams of crack cocaine from Phil.12
__________
12 The exchanges read:
Q:Didn't you once get 62 grams or something in that range
from a guy named Phil?
A:Named Phil?
Q:Yes.
A:I didn't--I didn't get it from him but I know he had it.
Q:Did you ever get 62 grams from him or get something of
that amount from Phil?
A:No, but he sells it but I never got it from him.
Q:But on other occasions you got drugs from Phil?
A:Yes.
12/5/96 Trial Tr. at 33.
Q:Did you ever--do you remember ever telling an investiga-
tor at a meeting that you got 62 grams once from Phil?
A:No.
Q:Didn't you once tell an investigator that you got 62 grams
from Phil?
A:I never got that amount from him, never.
Though she answered in the negative, defense counsel did not
present her with a copy of the notes and ask her to explain
any disparity between the text and her testimony.
Appellant alleges that this failure by defense counsel to
produce the notes and to "complete the impeachment," Appel-
lant's Br. at 36, of Bailey's testimony constitutes an oversight
of constitutional magnitude. We cannot agree. Even if it
constitutes a failure of advocacy,13 appellant's claim cannot
negotiate the hurdle of Strickland's prejudice prong when
examined in light of the record as a whole. See Strickland,
466 U.S. at 695-96 (court looks to evidence in its totality when
assessing potential prejudice). In addition to his earlier
admission of guilt, the evidence marshaled against appellant
was substantial. Most important, the DEA agent who con-
ducted the January 22nd debriefing testified that appellant
admitted to owning the crack cocaine seized by the MPD, and
to having made his most recent buy just prior to his arrest.
__________
Q:Well, you never got an amount of that sort from Phil or
from--
A:And I don't remember telling the investigator that.
Q:You don't remember telling the investigator that either.
A:No.
Q:So you didn't get 62 grams from Phil or from anyone, is
that right?
A:No, I did not.
Q:And you don't remember telling any investigator that you
got 62 grams from Phil.
A:No.
Id. at 70-71.
13 The trial court denied appellant's s 2255 petition on the
grounds that defense counsel acted reasonably: "[W]ould a reason-
able effective counsel have showed her the debriefing note? I'd say
some would and some wouldn't." 11/7/97 Tr. at 50. Since we find
any effect of defense counsel's alleged errors insufficient to justify
overturning the jury's verdict, and "[f]ailure to make the required
showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim," Strickland, 466 U.S. at 700, we
need not pass judgment on the reasonableness of counsel's perfor-
mance.
According to the DEA agent, appellant also described his
source of cocaine base, the quantities he typically purchased
and their cost, as well as his subsequent distribution. When
Bailey testified that the cocaine belonged to appellant, she
merely corroborated evidence already presented to the jury
by numerous law enforcement officials.
Had defense counsel presented Bailey with the DEA de-
briefing notes and asked her to explain any disparity, that
impeachment would not have cast any doubt on the testimony
given by the various law enforcement witnesses. Since the
notes lack any temporal references about the 62 grams, even
if it could have been established that Bailey once received
that quantity of cocaine from a supplier named Phil, no
evidence links that receipt with the drugs appellant repeated-
ly admitted to owning.14 As for its capacity to vitiate Bailey's
credibility, we do not believe that the introduction of the DEA
notes could have undermined her reliability significantly more
than the testimony she had already given. Bailey admitted
that she was intoxicated with a controlled substance on the
night of the arrest, that she had participated in narcotics
transactions which provided the basis for the search warrant
and her arrest, that she had been convicted of possession with
intent to distribute in the past, that she was cooperating with
the government in return for a lighter sentence, and that she
had broken the terms of her own plea agreement by continu-
ing to use drugs and by being rearrested for heroin posses-
sion. Viewed in light of the overwhelming evidence against
appellant, including his previous admission not just of the fact
but the details of his guilt, we cannot find that there is a
reasonable probability that, had Bailey been confronted with
__________
14 The only temporal reference consists of the statement "last
contact--$150 purchase 8-ball in August." Appellant's App. at 151.
Testifying at appellant's s 2255 hearing, the DEA agent who de-
briefed Bailey interpreted her notes to mean that any receipt of 62
grams would have had to have taken place prior to August. How-
ever, as she had no specific recollection of her conversation with
Bailey, she could offer only her best reconstruction of the notes.
the DEA notes, the jury verdict would have been any differ-
ent. See Strickland, 466 U.S. at 694.
2.Prosecutorial Misconduct
Finally, appellant asserts that the prosecutor violated his
Fifth Amendment right to due process of law by knowingly
sponsoring, or by failing to correct, the allegedly false testi-
mony of a government witness. Rehearsing the substance of
his ineffective assistance claim, appellant highlights the dis-
crepancy between Bailey's trial testimony and the DEA de-
briefing notes on the subject of whether she received drugs
from Phil. He goes on to argue that, under Napue v.
Illinois, 360 U.S. 264 (1959), the prosecution had a duty to
alert the court to Bailey's prior inconsistent statement. See
also United States v. Iverson, 637 F.2d 799, 803 n.10 (D.C.
Cir. 1980) ("[T]he prosecutor had an independent responsibili-
ty to alert the Court and jury to the truth."), modified on
petition for reh'g, 648 F.2d 737 (D.C. Cir. 1981). Rather than
pointing out the disparity, appellant alleges that the prosecu-
tion exacerbated the deception by leading Ms. Bailey through
the following rehabilitating exchange:
Q:Did you ever tell a DEA agent you thought a guy
named Phil might have 62 grams of crack?
A:Yeah, when they asked.
12/5/96 Trial Tr. at 71. From this alleged failure by the
prosecution to fulfill its affirmative obligation to correct the
record when a government witness testifies falsely, appellant
deduces a violation of due process. We disagree.
Even if appellant could establish that the prosecution either
sponsored or failed to correct false testimony,15 he cannot
satisfy the materiality test for prosecutorial misconduct artic-
__________
15 Without passing judgment on this question, we note that the
district court, in addressing appellant's s 2255 motion, specifically
concluded that the prosecutor did not knowingly sponsor false
testimony. "We still don't know that this is false testimony....
Nothing I've heard in the last two days indicates to me that there
was false testimony given at trial." 11/7/97 Tr. at 20-21.
ulated in Napue and reiterated in Giglio v. United States, 405
U.S. 150, 154 (1972) and United States v. Agurs, 427 U.S. 97,
112-13 (1976). Before finding an error of constitutional
significance, Giglio directs that a reviewing court must deter-
mine whether "the false testimony could in any reasonable
likelihood have affected the judgment of the jury." Id. at 154
(citations omitted). Although the prosecutor and defense
counsel have different obligations, in this instance we believe
that our discussion of appellant's ineffective assistance of
counsel claim effectively settles the issue. Just as we cannot
find a reasonable probability that the jury verdict would have
differed had defense counsel confronted Bailey with the notes,
we cannot discern a reasonable likelihood of a different
judgment even if appellant's interpretation of the notes had
been expressed to the jury.
Appellant offers two theories as to how the prosecutor's
allegedly improper question satisfies the Giglio materiality
standard. We reject each in turn. First appellant asserts
that if the jury had been apprised of the DEA notes, it could
have equated the transaction referred to in the notes with the
drugs seized by the MPD, whether or not Bailey admitted to
receiving 62 grams of cocaine on the stand. However, appel-
lant admitted ownership of these specific drugs not merely in
his guilty plea, but also in his more detailed debriefing
session with the DEA. Moreover, Bailey did testify to pur-
chasing large amounts of crack cocaine on previous occasions.
Even if the jury had been made aware that she told the DEA
agent that she had received 62 grams from Phil at some
point, we do not believe that this additional admission would
have cast any appreciable doubt upon the solid evidence
establishing appellant's guilt. Second, appellant claims that
the prosecutor's question served to rehabilitate Bailey's credi-
bility as a witness, such that the jury was more likely to
credit her testimony against appellant. However, at this
point Bailey's credibility had been thoroughly compromised
by her own admissions of prior drug use and dealing, and we
doubt any attempt at rehabilitation--if that it was--through
rephrasing a single question peripheral to the main issue of
the trial could have influenced the jury in its final verdict.16
See discussion infra pp. 23-24.
III. Conclusion
For reasons explained, we reject all of Burch's contentions
and affirm his conviction. Because appellant has failed to
make a substantial showing of the denial of any constitutional
right, we decline to issue a certificate of appealability and
affirm the dismissal of his petition for a writ of habeas corpus.
So ordered.
__________
16 By contrast, in Giglio and Napue, prosecution witnesses falsely
denied that they had been promised lenient treatment, see Giglio
405 U.S. at 152-53, and a recommendation of a reduced sentence,
see Napue, 360 U.S. at 266-67, in return for their testimony.