United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2000 Decided November 24, 2000
No. 00-3026
United States of America,
Appellee
v.
Antonione Smith, a/k/a Abdul Mines,
a/k/a York,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00399-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender. Neil H. Jaffee and
Tony W. Miles, Assistant Federal Public Defenders, entered
appearances.
Mary B. McCord, Assistant United States Attorney, ar-
gued the cause for appellee. With her on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher and
Roy W. McLeese, III, Assistant United States Attorneys.
Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: On November 3, 1999, following a
three-day trial, a federal jury found appellant Antonione
Smith guilty on one count of unlawful possession of a firearm
and ammunition by a convicted felon in violation of 18 U.S.C.
s 922(g)(1) (1994). Smith was thereafter sentenced to 51
months in federal prison, where he now resides. On appeal,
Smith identifies three alleged evidentiary errors, each of
which he argues merit reversal of the judgment below and
remand for a new trial. Only one of the alleged errors,
however, requires extended treatment here.
Smith challenges the admission of government witness
Frank Haera's testimony that government informant Kevin
Perry, himself a witness at trial, had provided truthful infor-
mation to the police in the past. Here, Smith renews his
timely objection that the testimony was irrelevant under
Federal Rule of Evidence 402. He also offers a new argu-
ment that was not raised at trial, i.e., that the so-called
"bolstering" evidence was inadmissible under Federal Rule of
Evidence 608(b). Rule 608(b) prohibits the use of extrinsic
evidence "for the purpose of attacking or supporting [a]
witness' credibility." Fed. R. Evid. 608(b). The Government
responds that the prosecution offered the "bolstering" testi-
mony to rebut defense counsel's insinuation on cross-
examination that informant Kevin Perry had been biased by
his plea agreement. As a result, the Government argues that
Rule 608(b) does not apply.
We need not reach the substance of this disagreement.
The fact that Perry had testified truthfully in the past was
plainly relevant. Because Smith did not raise the more
specific Rule 608(b) objection at trial, we must review admis-
sion on that front for plain error. This circuit has not yet
addressed whether, and to what extent, Rule 608(b) prohibits
admission of extrinsic evidence of specific instances of past
"truthful" cooperation offered by the government to rebut
allegations of an informant's bias; and there is no consensus
among the circuits that have addressed the issue. Thus, even
were we to find error, it would not be plain.
Smith's two remaining challenges fare no better. Smith
argues that the trial court, despite defense counsel's failure to
lodge timely objections, should have barred sua sponte the
prosecution's references to Smith's aliases as well as state-
ments implying that Smith was a violent and dangerous
criminal. Allusions to Smith's aliases were not so gratuitous,
and implications that Smith was a violent criminal not so
transparent, as to merit a finding of plain error on either
count. We therefore affirm the judgment of the District
Court.
I. Background
A. The Investigation
The Bureau of Alcohol, Tobacco and Firearms ("ATF")
utilizes a special High Intensity Drug Trafficking Area
("HIDTA") task force to investigate narcotics dealing, violent
crime, and drug-related homicides in the District of Columbia.
In 1996, HIDTA agents began a targeted investigation of the
Park Morton housing complex and surrounding area--a
known locus of drug-trafficking, violence, and a number of
unsolved murders. Trial Transcript at 21-22 (Nov. 2, 1999)
[hereinafter Tr.]. The investigation employed observation
posts, undercover narcotics purchases, and the arrest and
recruitment of confidential informants to aid in locating and
arresting other perpetrators. Tr. at 22-25.
In the midst of the ongoing investigation, officers observed
Perry selling crack cocaine. Rather than face trial on distri-
bution charges, Perry, who is confined to a wheelchair, en-
tered into a cooperation agreement on February 14, 1997.
Pursuant to his agreement, Perry entered a guilty plea to one
count of conspiracy to distribute and possess with intent to
distribute over 50 grams of crack cocaine. Tr. at 59. In
exchange for assistance, information, and truthful testimony,
HIDTA agents agreed to dismiss two charges then pending
against Perry in Superior Court. Tr. at 63-64. The Govern-
ment also agreed to file a substantial assistance motion
pursuant to U.S. Sentencing Guidelines Manual s 5K1.1
(1997), urging the District Court to waive the mandatory 10-
year minimum sentence on the federal distribution charge.
Tr. at 63. Though not explicitly part of the agreement,
agents also provided Perry with various amounts of money
for rent, bills, childcare, transportation, and moving expenses.
Tr. at 46-47, 104-07.
B. The Transaction
According to Perry, Smith--whom he had known for 10
years--repeatedly approached him in the summer of 1997
about purchasing an "AK-47." Tr. at 66-67. Though Smith
was not himself a target of the investigation, HIDTA agents
instructed Perry to go ahead with the transaction. Tr. at 67.
Perry testified that he and Smith agreed on a price of $900
for the rifle, and because Perry claimed to be buying the
weapon on behalf of a friend, Smith agreed to give Perry a
small finder's fee. Tr. at 67. The actual "deal" took place in
Perry's apartment on July 9, 1997. Agent Frank Haera of
the HIDTA task force oversaw the sting operation. Tr. at
27-29.
On the evening of July 9, and before Smith was to arrive at
Perry's apartment, undercover officer Clarence Brooks ex-
changed Perry's wheelchair for one equipped with a video
camera to record the transaction. Tr. at 114. He also fitted
Perry with a radio transmitter and provided him a cell phone
and money to purchase the rifle. Tr. 30-31. On his way out,
Officer Brooks passed a man entering the apartment whom
he recognized as Smith, also known to him as "York." Tr. at
114. Though no officer was present during the transaction,
Agent Haera surveyed the events via radio transmitter from
a block away. Tr. at 30.
Smith did not have the gun with him when arriving at
Perry's apartment. At trial, Perry testified that he and
Smith initially discussed how Smith might inconspicuously
transport the weapon from down the street to the apartment.
Tr. at 70-71. Smith left once and returned without the gun,
at which time they again caucused over means of moving the
merchandise without attracting attention. Tr. at 71-72.
Smith left a second time and eventually returned with Daniel
Hamilton, or "Cat Face," who carried a large, torn cardboard
box into the apartment. Tr. at 72. Hamilton put down the
box, which contained a loaded Norinco SKS rifle, loose ammu-
nition, and a black skull cap. Tr. at 34-36, 116-18. Perry
and Smith moved the box under the couch, and Perry gave
Smith the money. Smith returned a few dollars to Perry for
arranging the deal, before leaving the apartment with Hamil-
ton. Tr. at 74. Officer Brooks then returned to the apart-
ment, retrieved the box and its contents, and exchanged
wheelchairs. Tr. 116-17.
C. Proceedings Below
On November 17, 1998, a federal grand jury indicted both
Smith and Hamilton on one count of unlawful transfer and
possession of a semi-automatic assault weapon, in violation of
18 U.S.C. s 922(v)(1) (1994). Because Smith already had a
previous felony conviction, he was also indicted on one count
of unlawful possession of a firearm by a person convicted of a
crime punishable by imprisonment for a term exceeding one
year, in violation of 18 U.S.C. s 922(g)(1). See Indictment,
United States v. Smith, Crim. No. 98-399-01-JR (D.D.C.
Nov. 17, 1998), reprinted in Appellant's Appendix ("App.") at
10. The District Court dismissed the indictment on the first
count as to each defendant, leaving only the second count as
to Smith.
The trial involving Smith's prosecution commenced on No-
vember 1, 1999. After one day of testimony and argument,
the jury returned a guilty verdict. At trial, the Government
called four witnesses--Agent Haera, Officer Brooks, Kevin
Perry, and Jeffrey Descheemaeker, an ATF firearms special-
ist to testify about the rifle's capabilities. During direct
examination of Perry, the prosecutor played the videotape of
the transaction, though the sound was inaudible. Tr. at 85.
Thus, Perry's testimony was the only evidence presented
regarding the content of his discussions with Smith and
Hamilton. The defense rested without calling witnesses.
On February 28, 2000, the trial judge sentenced Smith to
51 months in federal prison, followed by three years' super-
vised release. See Judgment, Smith, Crim. No. 98-299-01-
JR (D.D.C. Feb. 28, 2000), reprinted in App. at 13. Smith
now appeals, challenging three alleged evidentiary errors.
He seeks reversal of the District Court's judgment and
remand for a new trial.
II. Analysis
A. The So-called "Bolstering" Evidence
Smith argues that the District Court improperly admitted
"bolstering" testimony that Perry, himself a witness at trial,
had provided truthful information to the task force in the
past. Smith points to the following exchange on re-direct
examination between the prosecutor and government witness
Agent Haera:
Q: Mr. Miles asked you some questions about Mr.
Perry's cooperation and the information he's given you.
Do you remember those questions?
A: Yes.
Q: Is it true that Perry had given you information that
has led to the capture of other criminals?
Mr. Miles: Objection, Your Honor.
The Court: Sustained.
By Ms. Covell:
Q: As a result of Mr. Perry's cooperation, have you
been able to arrest other criminals?
Mr. Miles: Objection.
The Court: Sustained. It's leading.
By Ms. Covell:
Q: What happened--well, let me rephrase this. With
the information that Mr. Perry gave you, what did you
do?
Mr. Miles: Objection to relevance.
The Court: I'll overrule that objection.
The Witness: Repeat your question.
Ms. Covell: Sure.
By Ms. Covell:
Q: Mr. Perry gave you certain information about indi-
viduals in the Park Morton complex; is that right?
A: That's true.
Q: And what did you do with that information?
A: The information that Mr. Perry gave me personally,
I did a lot of different things with it. Some of the
information was used to obtain search warrants. Some
of the information was used to begin investigations on
other people in that area that were committing crimes
such as drug dealing and firearms possession. And some
of the information was used to inform the attorneys of
how he could help us in these investigations by way of
testimony in the grand jury and at trials.
Q: In any of those search warrants that were based on
information given you by Perry, did you uncover contra-
band?
A: Yes.
Q: And any of those investigations of other individuals
that you started as a result of Mr. Perry's information,
did any of those investigations lead to arrest?
A: Yes
Q: And were the arrests of those individuals corroborat-
ed by any tangible evidence?
Mr. Miles: Objection, Your Honor.
The Court: Sustained.
By Ms. Covell:
Q: Agent Haera, based on what you know about the
information Mr. Perry gave you, and the search warrants
you've gotten and the arrests, do you believe that the
information Mr. Perry gave you is truthful?
Mr. Miles: Objection, Your Honor.
The Court: Sustained.
Ms. Covell: That's all I have, Your Honor.
Tr. at 52-55 (emphasis added). This exchange came on the
heels of a cross-examination, during which defense counsel
elicited from Agent Haera information regarding Perry's
possible bias, including his plea agreement and money paid
Perry by the ATF. Tr. at 42-48. Smith here renews his
relevance objection and also raises for the first time the
inadmissibility of the testimony under Federal Rule of Evi-
dence 608(b).
Because defense counsel lodged an objection on the basis of
relevance in a timely fashion, we review admission of the cited
testimony for abuse of discretion. See United States v.
Ramsey, 165 F.3d 980, 983 n.3 (D.C. Cir.), cert. denied, 120
S. Ct. 223 (1999). Evidence is relevant if it has "any tenden-
cy to make the existence of any fact that is of consequence to
the determination of the action more probable or less proba-
ble than it would be without the evidence." Fed. R. Evid. 401.
That Perry has informed and testified truthfully in the past
under his plea agreement certainly bears on his response to
similar pressures and temptations in the present. Further-
more, Federal Rule of Evidence 404(b), which prohibits the
admission of evidence regarding past acts "to prove the
character of a person to show action in conformity therewith,"
would be largely superfluous if the rules on "relevance" were
construed to proscribe "propensity" testimony. Similarly,
were we to agree with Smith, Rule 608(b)'s prohibition on the
use of extrinsic evidence of specific instances of a witness'
truthful or untruthful conduct "for the purposes of attacking
or supporting the witness' credibility" would itself be redun-
dant. The concerns giving rise to Rules 404(b) and 608(b) are
not relevance concerns. To the contrary, both "propensity"
rules and the rule restricting the admission of extrinsic
credibility evidence embody specific concerns that, although
relevant, evidence of prior acts will either unduly prejudice
and overpersuade the jury, see Old Chief v. United States,
519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681
F.2d 61, 63 (1st Cir. 1982)), or waste time by sanctioning
countless distinct credibility mini-trials within the trial prop-
er, see Fed. R. Evid. 405 advisory committee's note; Fed. R.
Evid. 608(b) advisory committee's note. In short, we reject
Smith's claim that the disputed testimony was irrelevant and
turn to his 608(b) challenge.
It should first be noted that certain of the alleged "bolster-
ing" testimony--concerning whether the information that
Perry had given to law enforcement officers in the past had
been corroborated and whether Perry had been truthful in
past dealings--was objected to on unspecified grounds and
the objections were sustained. Nonetheless, Agent Haera
was allowed to testify that he had received and used informa-
tion from Perry to facilitate investigations, uncover contra-
band, and secure arrests. It is this latter testimony that
Smith claims was "bolstering" and erroneously admitted un-
der Rule 608(b). In light of our ruling in this case, we need
not address the accuracy of appellant's characterization of the
disputed testimony as "bolstering."
Because Smith failed to raise a timely Rule 608(b) objec-
tion, we review admission of the testimony for plain error.
See Fed. R. Crim. P. 52(b); see also United States v. Spriggs,
102 F.3d 1245, 1257 (D.C. Cir. 1996). The term "plain" as
used in Federal Rule of Criminal Procedure 52(b) "is synony-
mous with 'clear' or, equivalently, 'obvious.' " United States
v. Olano, 507 U.S. 725, 734 (1993). "At a minimum, a court of
appeals cannot correct an error pursuant to Rule 52(b) unless
the error is clear under current law." Id.
As noted above, this circuit has not yet addressed whether,
and to what extent, Rule 608(b) prohibits admission of extrin-
sic evidence of specific instances of past "truthful" coopera-
tion offered by the government to rebut allegations of an
informant's bias. Although this fact, alone, is not dispositive
of the plain error issue, it is important when we consider that
Rule 608(b) itself admits of no simple answer to the question
at hand and, in addition, our sister circuits have been unable
to agree on the point at which impermissible "bolstering"
ends and permissible use of past cooperation to rebut bias
begins. Compare United States v. Taylor, 900 F.2d 779, 781
(4th Cir. 1990) ("[I]t was error for the district court to admit
extrinsic evidence that the informer, Phillips, had provided
reliable information and testimony that resulted in several
convictions, in order to bolster Philips' credibility."), and
United States v. Murray, 103 F.3d 310, 321-22 (3d Cir. 1997)
(discussing Taylor), with United States v. Lochmondy, 890
F.2d 817, 821 (6th Cir. 1989) ("Several circuits have held that
evidence of cooperation on other matters is admissible to
justify a cooperation agreement and to rebut allegations of
bias." (citing United States v. Sanchez, 790 F.2d 1561 (11th
Cir. 1986); United States v. Fusco, 748 F.2d 996 (5th Cir.
1984); United States v. Martinez, 775 F.2d 31 (2d Cir.
1985))), and United States v. Penny, 60 F.3d 1257, 1264 (7th
Cir. 1995) (quoting Lochmondy).
Rule 608(b) states that,
[s]pecific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness' credibili-
ty, other than conviction of crime as provided in rule 609,
may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness'
character for truthfulness or untruthfulness, or (2) con-
cerning the character for truthfulness or untruthfulness
of another witness as to which character the witness
being cross-examined has testified.
Fed. R. Evid. 608(b) (emphasis added). As both the plain
language of the rule and the cases cited above suggest, the
threshold question under Rule 608(b) is: For what purpose
has the prosecution offered the extrinsic evidence? If offered
solely "in order to bolster [the informant's] credibility," Tay-
lor, 900 F.2d at 781, then Rule 608(b) bars admission lest one
of the exceptions applies. But, if offered for a different and
legitimate reason, such as "to justify a cooperation agreement
[or] rebut allegations of bias," Lochmondy, 890 F.2d at 821,
the evidence falls outside Rule 608(b)'s narrow confines.
Government informants present a uniquely difficult case for
courts determining whether the prosecution has offered the
so-called "bolstering" evidence for a permissible or an imper-
missible purpose. Routinely, defense counsel cross-examines
government witnesses about an informant's bias--whether it
be a plea agreement, a financial arrangement, or both. On
re-direct, the prosecution may want to introduce specific
instances of fruitful cooperation under the plea agreement to
show that the informant has already cooperated substantially
with the police, thereby reducing the marginal temptation to
lie in the present circumstance. The line between this per-
missible use and impermissible "bolstering" is indeed a hazy
one. In Fusco, the Fifth Circuit held extrinsic evidence of
past cooperation admissible to rebut implications that the
informant had received $45,000 from the DEA solely for his
help in that case: "Because the government was trying to
convince the jury that [the informant] was not biased, it was
not 'bolstering' [the informant] in a prohibited way, and [the
informant's] prior cooperation was not 'extrinsic,' as those
terms are used in Federal Rule of Evidence 608. Bias, as
opposed to general veracity, is not a collateral issue." 748
F.2d at 998. Likewise, in United States v. Lindemann, 85
F.3d 1232 (7th Cir. 1996), the Seventh Circuit found admissi-
ble similar evidence offered in response to suggestions that
the informant "would not have gotten a plea deal if he hadn't
come up with the name of a 'big fish' like Lindemann." Id. at
1242. The court held that
[t]he evidence specifically rebutted the allegation that
[the informant] was biased out of self-interest in Linde-
mann's case: Burns' successful participation in numerous
other cases meant that at the time he was negotiating
over his plea deal, he had lots of information to use as
bargaining chips. That fact was relevant under the
standards of [Federal Rule of Evidence] 402 because it
made less probable the assertion that Burns was lying in
Lindemann's case out of self-interest.
Id. at 1243.
Because defense counsel in the instant case failed to raise
the 608(b) objection below, the prosecution never had an
opportunity to explain why it offered the alleged "bolstering"
evidence. Defense counsel had used its cross-examination of
Agent Haera to expose the terms of Perry's plea agreement,
Tr. at 45-46, to suggest that Perry need only "accuse"
suspects to benefit under that agreement, Tr. 44-45, and to
show the tremendous financial incentives on Perry to provide
even false information, Tr. at 46-48. Perhaps, as in Linde-
mann, the prosecution offered the testimony to demonstrate
the diminished marginal value to Perry of his participation in
the instant case; perhaps as in Fusco, it was offered to
undermine any insinuation that Perry had received funds for
his participation in this case alone; or finally, perhaps the
prosecution wanted to counter defense counsel's specific insin-
uation that Perry would benefit merely by accusing people.
We simply do not know. Given these possibilities, the ambi-
guity in the case law, and the context of the present testimo-
ny, we cannot say that admission of the evidence constituted
plain error.
We conclude by emphasizing that, to satisfy the plain error
standard, Smith must show that the alleged error "affect[ed]
substantial rights," that is, "affected the outcome of the
district court proceedings." Olano, 507 U.S. at 734 (holding
that the "substantial rights" inquiry of Federal Rule of Crimi-
nal Procedure 52(b) mirrors Rule 52(a)'s "harmless error"
inquiry, except that the burden in the former falls on the
defendant to show prejudice). Moreover, " '[t]he plain error
exception to the contemporaneous objection requirement
should be used sparingly, only for "particularly egregious
errors" that "seriously affect the fairness, integrity or public
reputation of judicial proceedings." ' " Spriggs, 102 F.3d at
1257 (quoting United States v. Copelin, 996 F.2d 379, 383
(D.C. Cir. 1993)). Here, the minimal damage arguably
wrought by the contested testimony stands in stark contrast
to the overwhelming weight of evidence against Smith. Fur-
thermore, as noted above, it appears that the most damaging
of the alleged "bolstering" testimony was excluded pursuant
to objections that were raised by Smith's attorney. There
was no plain error.
B. The Remaining Challenges
We pause only briefly over Smith's two remaining eviden-
tiary challenges. As with the Rule 608(b) issue, defense
counsel failed to raise timely objections at trial. We thus
review admission for plain error.
Smith argues first that the District Court improperly al-
lowed the prosecution to refer to and to elicit answers regard-
ing Smith's aliases. The transcript does not reveal, however,
whether the prosecution offered the aliases for arguably
irrelevant and prejudicial purposes or primarily as a means of
identifying Smith--Perry had apparently known Smith as
"York." Tr. at 66. Furthermore, Smith has not shown how
the limited allusions prejudiced his defense.
Smith's second remaining argument--that the District
Court erred by admitting evidence implying that Smith had
been a target of the Park Morton investigation and implying
that Smith had threatened Perry with violence--fares no
better. Perry himself testified that "[Smith] wasn't the tar-
get of the investigation, but, however, he approached me and
asked me was I interested in buying an AK-47." Tr. at 67.
As to possible implications that Perry had been moved on
various occasions to protect him from Smith, the District
Court addressed any potential problem on its own initiative
by requiring the prosecutor to ask for clarification from its
witness:
(Bench conference on the record)
The Court: This is--in NFL language, this is my time
out. There's been a lot of sort of hinting around the
edges of the danger this guy was in, and my concern, of
course, is that the implication of all of it is that this
defendant is the one responsible for the danger. Now
both sides have--both sides have toyed with this. I can't
unscramble this egg. But there haven't been any objec-
tions until now, but I don't want this danger thing to be
played up.
Ms. Covell: I understand, Your Honor. My view is that
Mr. Miles opened the door by asking him about the
payments for the move. I was going to ask why and
make it clear--I can ask a follow-up question was it
because of the defendant. He knows it wasn't because of
the defendant.
The Court: That would be very helpful.
Ms. Covell: I can do that.
Mr. Miles: Okay.
(End of bench conference)
By Ms. Covell:
Q. What were the reasons that you moved Kevin Per-
ry?
A. I felt that his life was in danger on several occasions.
That's why I moved Mr. Perry.
Q. Were any of those occasions that you moved him a
result of any sort of threat or danger that came from the
defendant?
Let me rephrase that: You never learned that the defen-
dant had ever threatened Mr. Perry in any way?
A. No.
Tr. at 48-49. Any residual problems lingering after the
clarification certainly do not constitute plain error.
III. Conclusion
Because the District Court's alleged evidentiary failings do
not rise to the level of plain error, Smith's conviction is
Affirmed.