United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2001 Decided November 9, 2001
No. 00-3056
United States of America,
Appellee
v.
Pernell J. Sumlin,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00164-01)
Robert S. Becker, appointed by the court, argued the cause
and filed the brief for appellant.
Elana Tyrangiel, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, John
R. Fisher, Roy W. McLeese III and John Crabb Jr., Assistant
U.S. Attorneys.
Before: Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Pernell Sumlin was convicted
after a jury trial of one count of conspiracy to distribute and
possess with intent to distribute 500 grams or more of cocaine
base in violation of 21 U.S.C. ss 846, 841(a)(1) and
841(b)(1)(B)(ii); unlawful distribution of 5 grams or more of
cocaine base in violation of 21 U.S.C. s 841(a)(1)(B)(iii); and,
unlawful distribution of 500 grams or more of cocaine and
aiding and abetting, in violation of 21 U.S.C. ss 841(a)(1),
841(b)(1)(B)(ii) and 18 U.S.C. s 2. Sumlin appeals, arguing
that the Government impermissibly introduced evidence relat-
ing to his "prior bad acts" and improperly bolstered the
credibility of its paid informant. Sumlin also argues that his
convictions should be overturned because the evidence pre-
sented at trial established entrapment as a matter of law.
Finding no merit to Sumlin's arguments, we affirm his convic-
tions.
I. Facts
The parties agree that appellant Sumlin and Kevin Goode
first met in the spring of 1998 when they both worked in the
same downtown D.C. office building. Goode, having pleaded
guilty to a drug offense in 1997, was cooperating with the
DEA on various drug investigations. Beyond that, the par-
ties' versions of the events leading to Sumlin's arrest differ
somewhat. According to the government, Sumlin told Goode
in mid-1998 that he was involved in the drug trade and that
he had a drug connection in Indiana, one "Mike Turio," who
supplied him with cocaine. Also according to the govern-
ment, Sumlin told Goode that he had "purchased a kilo" of
cocaine, and had mentioned his drug source to Goode on at
least two subsequent occasions.
In the spring of 1999, with the assistance of Goode, the
DEA began investigating Sumlin and his purported connec-
tion in Indiana. In late March or early April of that year, the
DEA directed Goode to contact Sumlin. Goode did so, and on
April 2, 1999, Goode and Sumlin made arrangements for
Sumlin to sell 62 grams of cocaine to Goode. That night,
Sumlin, Goode, and undercover law enforcement officer Per-
cel Alston (posing as Goode's cousin) met in a Maryland
restaurant to complete the transaction. At the time of the
meeting, however, Sumlin indicated that the cocaine had not
yet been converted into crack and that he needed to meet
with his "source." Sumlin left the restaurant and did not
return. However, in a conversation with Goode the following
day, the two made arrangements to complete the transaction.
Thus, on April 6, 1999, Sumlin sold 62 grams of crack cocaine
to Goode and Alston for $2100. During this drug sale, Sumlin
discussed "Mike" and his own travel to Indiana. After the
sale was completed, Sumlin told Alston and Goode that he
had an additional kilogram of cocaine to sell and that Goode
and Alston should contact him if they needed any additional
cocaine. Goode and appellant subsequently arranged a deal
for Sumlin to sell five kilograms of cocaine for $125,000.
Sumlin asked an acquaintance, Daniel Clayton, to supply the
cocaine for the upcoming sale. Clayton provided four kilo-
grams of cocaine to Sumlin, who then met with Goode on
April 15, 1999. After giving the cocaine to Goode, Sumlin was
arrested.
Prior to trial and over Sumlin's objection, the court ruled
that the government could introduce, under Federal Rule of
Evidence 404(b), evidence that Sumlin pleaded guilty to drug
trafficking in 1989, and had engaged in uncharged drug
transactions in 1998. This latter evidence, according to the
government's proffer, would include testimony from Clayton
that he and Sumlin had engaged in prior cocaine transactions
together in amounts ranging from nine ounces to a kilogram,
as well as evidence from Goode regarding Sumlin's state-
ments that he was involved in drug trafficking. The govern-
ment also introduced at trial--without objection--statements
from Sumlin regarding his experience as a drug dealer;
testimony from Goode elaborating and interpreting Sumlin's
statements regarding his Indiana contact, Mike; and, testi-
mony from DEA Agent Michael Dukovich regarding the
DEA's investigation into a possible drug source in Indiana.
The government also introduced, again without objection,
testimony from DEA Agent Albert Perry regarding Goode's
record for assisting the DEA in other drug investigations.
Sumlin testified in his own defense that he was an unwilling
participant in the drug sales and that Goode called him
between 40 and 50 times before he agreed to participate in
the transactions at all. Sumlin also testified that he only
learned of Clayton and Clayton's drug connections through a
friend, that he lied to Goode and Alston about his drug
connections during the April 6 drug deal, and that he acted
like a drug dealer for "safety reasons." Sumlin further
testified that he was unfamiliar with the drug jargon used by
Goode and Alston, and produced a witness (his wife) who
testified that he lacked the overt signs of participation in the
drug trade such as expensive cars and clothing. Finally,
Sumlin testified that he made up the story of "Mike," his
alleged drug source.
On appeal, Sumlin challenges his convictions on grounds
the trial court erred in allowing testimony from Goode and
Agent Dukovich regarding "Mike" and the DEA's investiga-
tion into an Indiana drug source, as well as testimony from
Agent Perry regarding Goode's record for assisting the DEA.
Sumlin also argues that he was entrapped, as no reasonable
jury could have concluded that he was predisposed to commit
the crimes for which he was convicted. We address, and
dismiss, each of his arguments in turn.
II. Analysis
A. Rule 404(b) Evidence
Prior to trial, the government filed notice of its intent to
present, under Fed. R. Evid. 404(b), "other crimes evidence."
See Government's Notice of Intent to Introduce Other Crimes
Evidence Pursuant to Federal Rule of Evidence 404(b), Unit-
ed States v. Sumlin, Cr. No. 99-164 (RWR) (D.D.C. Jan. 5,
2000). "Other crimes evidence" is admissible under Rule
404(b) if it is relevant, probative of a material issue other than
the defendant's character, and more probative than prejudi-
cial. See United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir.
2000); see also United States v. Bowie, 232 F.3d 923, 930
(D.C. Cir. 2000). In addition, such evidence is admissible
only if all of the evidence at trial is "sufficient to support a
jury finding that the defendant committed the other crime or
act." Bowie, 232 F.3d at 930 (citing Huddleston v. United
States, 485 U.S. 681, 689-90 (1988)).
The Government intended to introduce evidence of Sumlin's
past guilty plea to drug distribution in 1989, and his un-
charged participation in drug trafficking during 1998. At a
hearing before the district court, the Government proffered
the testimony of Clayton, who would testify about his direct
participation with Sumlin in past drug transactions, and Kev-
in Goode, who would testify about comments Sumlin made
indicating his involvement in the drug trade. Over Sumlin's
objection, the district court ruled in favor of allowing the
testimony, subject to Sumlin renewing his objection at trial.
At trial, the government introduced its proffered evidence,
but Sumlin did not renew his objection.
Sumlin now argues that the district court abused its discre-
tion and committed prejudicial error in admitting certain
"other crimes evidence" through the testimony of Goode and
DEA Agent Mike Dukovich. Specifically, Sumlin argues that
in granting the Government's motion to introduce testimony
under Fed. R. Evid. 404(b), the district court ruled only that
the Government could introduce evidence concerning 1) Sum-
lin's guilty plea to crack cocaine distribution in 1989, and
2) evidence that Sumlin received and sold crack cocaine in
1998. Sumlin asserts that the district court wrongly allowed
testimony from Goode concerning Sumlin's alleged association
with "Mike Turio," and testimony from Agent Dukovich con-
cerning an open investigation in Indiana as to a possible
source of drugs. Because the Government's proffer at the
hearing made no mention of "Mike Turio" or of Sumlin's
alleged connection to Indiana, Sumlin argues that it was error
for the district court to admit this evidence at trial. Sumlin
contends that it was this particular evidence that caused a
jury to conclude that he was engaged in drug trafficking.
Therefore, he claims he was prejudiced by its admission.
The Government, however, argues that although Sumlin
objected to its proffered evidence at the hearing before the
district court, he did not object to its introduction at trial.
Accordingly, the proper standard of review is one of plain
error, not abuse of discretion. The Government continues
that even if it was error for the district court to admit the
testimony, Sumlin did not suffer any prejudice from the
admission of the testimony because additional, unobjected-to
evidence was admitted such that a jury could have concluded
that he participated in drug trafficking.
We agree with the Government that even if it was error for
the district court to admit the challenged testimony, Sumlin is
not entitled to remedial action. We note that our analysis
remains unchanged whether we apply the more lenient abuse
of discretion standard, as suggested by Sumlin, or the less
forgiving plain error standard, as suggested by the Govern-
ment. This is so because both standards require a finding
that the district court's error affected the defendant's sub-
stantial rights. See Fed. R. Crim. P. 52; see also United
States v. Olano, 507 U.S. 725, 731 (1993). Thus even assum-
ing error, Sumlin has nonetheless failed to establish that the
admission of both Goode's and Agent Dukovich's testimony
"affected the outcome of the district court proceedings."
Olano, 507 U.S. at 734.
First, Sumlin does not contest the district court's decision
to allow Clayton's statements regarding Sumlin's experiences
as a drug dealer. He concedes that these statements are
admissible under Federal Rule of Evidence 801(d)(2) as party
admissions. This unchallenged evidence includes Clayton's
testimony that Sumlin said he was involved in the drug trade,
that he "was receiving about a 'ki'[logram] a week to a week
and a-half," and that he had a "connection through Indiana"
for receiving drugs. Moreover, Goode's unchallenged testi-
mony includes Sumlin's admissions that he had a drug suppli-
er in Indiana named Mike Turio. Yet Sumlin argues that it
was Goode's unsupported explanation of his relationship with
Mike Turio at trial that caused the jury to find that he was
involved in drug trafficking. This challenged evidence, how-
ever, pales in comparison to Sumlin's own damaging admis-
sions regarding his past involvement in drug trafficking. Any
error in admitting Goode's testimony was harmless.
Second, Sumlin challenges Agent Dukovich's testimony con-
cerning an open investigation into an Indiana drug source.
Specifically, Sumlin argues that because the DEA never
established a connection between Sumlin and Indiana or Mike
Turio, it was error for the district court to admit Agent
Dukovich's testimony concerning the DEA's investigative ef-
forts in Indiana. Error results, Sumlin argues, because
"[o]nly with the addition of [Agent] Dukovich's testimony that
a person in Ft. Wayne [Indiana] was under DEA investiga-
tion did the allegations become sufficient for a jury to con-
clude" that Sumlin was involved in a drug trafficking conspir-
acy. This argument lacks merit. Whether Sumlin received
drugs from Indiana or India makes no difference. The
unchallenged evidence easily established that Sumlin and
Clayton received and distributed drugs in 1998. From where
or from whom is of little consequence. Moreover, defense
counsel succeeded at trial in showing that the DEA never
confirmed a relationship between Sumlin and Mike Turio.
Again, even assuming it was error to admit Agent Dukovich's
testimony concerning the DEA's investigation in Indiana,
Sumlin did not suffer prejudice. Because Sumlin has not
established prejudice, he is not entitled to relief.
B. Bolstering
Sumlin next asserts that the district court erred by admit-
ting DEA Agent Perry's testimony regarding Goode's cooper-
ation with the DEA in previous drug investigations. Sumlin
argues that this evidence was irrelevant, improper "bolster-
ing" more prejudicial than probative, and should not have
been admitted.1 We disagree.
__________
1 Although Fed. R. Evid. 608(b) explicitly deals with "bolstering"
appellant expressly is not relying on that rule, on the theory that
the evidence in this case is not "extrinsic" within the meaning of the
rule. Without regard to whether Sumlin's understanding of the
Here Sumlin and the Government agree that the district
court's decision to admit Agent Perry's testimony is reviewed
for plain error because Sumlin did not object to its introduc-
tion at trial. Fed. R. Crim. P. 52(b); United States v.
Spriggs, 102 F.3d 1245, 1257 (D.C. Cir. 1996). As used in
Rule 52(b), " '[p]lain' is synonymous with 'clear' or, equiva-
lently, 'obvious.' " Olano, 507 U.S. at 734. In determining
whether an error is "plain," we recognize that "[a]t a mini-
mum, [a] court of appeals cannot correct an error pursuant to
Rule 52(b) unless the error is clear under current law." Id.
The plain error must also affect "substantial rights." Id.
Usually, an error affecting substantial rights is one that is
prejudicial, or, in other words, one that "affected the outcome
of the district court proceedings." Id. A decision to correct
such an error, however, remains within our "sound discre-
tion," which "should not [be] exercise[d] ... unless the error
seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings." Id. at 732 (internal quotations omit-
ted). Under this standard of review, the district court's
decision to admit testimony concerning Goode's prior coopera-
tion with the DEA was not error, plain or otherwise, and
certainly did not affect the outcome of the district court
proceedings.
Sumlin's first challenge to Agent Perry's testimony is that
it was irrelevant under Fed. R. Evid. 401. This challenge
need not detain us long. Evidence is relevant if it has "any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 401. In United States v. Smith, 232 F.3d 236 (D.C. Cir.
2000), we dismissed a relevance challenge under similar cir-
cumstances on grounds that the fact a paid informant "has
informed and testified truthfully in the past under his plea
agreement certainly bears on his response to similar pres-
sures and temptations in the present." Id. at 241. Finding
__________
meaning of the rule is correct, we have analyzed the record in the
terms of relevance and prejudice asserted by him in his brief.
no reason to depart from our reasoning in Smith, we reject
Sumlin's claim that Perry's testimony was irrelevant.
We interpret Sumlin's next challenge as one of improper
"bolstering" under Rule 608(b). 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). The testimony to which Sumlin now
objects includes statements from Agent Perry that Goode had
assisted the DEA in other investigations that resulted in
numerous arrests. This testimony, however, followed Sum-
lin's efforts to impeach Goode's credibility by questioning the
arrangements of his plea agreement with the DEA. Certain-
ly, revealing a witness' bias is an acceptable method of
attacking a witness' credibility. See United States v. Abel,
469 U.S. 45, 50-52 (1984). Equally acceptable, though, may
be testimony that tends to rebut bias. In Smith, we recog-
nized that our sister circuits did not agree on "the point at
which impermissible 'bolstering' ends and permissible use of
past cooperation to rebut bias begins." 232 F.3d at 242. We
did, however, identify the threshold question under Rule
608(b) as: "For what purpose has the prosecution offered the
extrinsic evidence?" Id. If offered only to bolster an infor-
mant's credibility, the extrinsic evidence is barred by Rule
608(b). See United States v. Taylor, 900 F.2d 779, 781 (4th
Cir. 1990). If offered for an alternate and legitimate reason,
"such as 'to justify a cooperation agreement [or] rebut allega-
tions of bias,' the evidence falls outside Rule 608(b)'s narrow
confines." Smith, 232 F.3d at 242 (quoting United States v.
Lochmondy, 890 F.2d 817, 821 (6th Cir. 1989)).
In the present case, we do not know for what purpose the
Government introduced Agent Perry's testimony. As in
Smith, defense counsel failed to object to the testimony at
trial, thus preventing the prosecution from justifying or ex-
plaining its purpose for introducing the testimony. Perhaps
the Government offered the evidence to rebut allegations of
bias; perhaps not. Under the plain error standard, with the
possibility that the Government introduced Agent Perry's
testimony to rebut allegations of bias, and the "ambiguity in
the case law" that results from the "hazy" line between
permissible and impermissible uses of "bolstering," we cannot
find that the district court's admission of Agent Perry's
testimony, if error at all, was obvious, or that it affected
substantial rights of the defendant. See Smith, 232 F.3d at
243.
Even if it was error to introduce Agent Perry's testimony,
the ultimate outcome remains unchanged. Under the plain
error standard, Sumlin must show that the introduction of
Agent Perry's testimony was error that "affected the outcome
of the district court proceedings." Olano, 507 U.S. at 734.
In considering this standard, we are mindful that a court
should invoke the plain error exception "sparingly" to remedy
only "particularly egregious errors" that adversely affect the
"fairness, integrity or public reputation of judicial proceed-
ings." Smith, 232 F.3d at 243 (internal quotations omitted).
With the great weight of the evidence against Sumlin before
us, in particular his own damaging admissions, we fail to see
how the introduction of Agent Perry's testimony could have
affected the outcome of Sumlin's trial. Because Sumlin did
not suffer prejudice as a result of Agent Perry's testimony,
his challenge must fail.
Sumlin next argues that Agent Perry's testimony, even if
admissible, should have been rejected under Federal Rule of
Evidence 403. This rule states that,
[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403. Sumlin argues that Agent Perry's testi-
mony was unduly prejudicial and should therefore have been
excluded. This challenge also need not detain us long be-
cause we again review for plain error. When faced with this
question before, we noted that "[i]t is difficult to imagine a
Rule 403 challenge that could meet [the plain error] standard,
for Rule 403 contemplates the thoughtful consideration of the
trial court and leaves the admission of evidence to the sound
discretion of the trial judge." United States v. Boney, 977
F.2d 624, 631 (D.C. Cir. 1992). The facts of this case do not
stretch our imagination to the extremes contemplated by the
Boney court. Instead, the facts here are quite similar to
those in Smith. The Government's evidence tended to dem-
onstrate that Goode had cooperated with the Government in
the past, and to rebut Sumlin's allegations that Goode was
biased. Its probative value, then, was high. The prejudice
complained of, however, is unclear. Even without Agent
Perry's testimony, the evidence against Sumlin was sufficient
to support his convictions. Therefore, based on our decision
in Smith, our recognized deference to a trial court's Rule 403
determinations, and our agreement with the Third Circuit
that "[i]f judicial self-restraint is ever desirable, it is when a
Rule 403 analysis of a trial court is reviewed by an appellate
tribunal," we find that the district court's admission of Per-
ry's testimony was not plainly more prejudicial than proba-
tive. Boney, 977 F.2d at 631 (quoting United States v. Long,
574 F.2d 761, 767 (3d Cir. 1978)).
C. Entrapment
Sumlin's final argument is that the evidence presented at
trial established entrapment as a matter of law. We dis-
agree. A successful entrapment defense requires two ele-
ments: "government inducement of the crime, and a lack of
predisposition on the part of the defendant to engage in the
criminal conduct." Mathews v. United States, 485 U.S. 58, 63
(1988). Thus, a defendant must first show that he was
induced by the government to commit a crime that he would
not have otherwise committed. See id. at 62-63. A defen-
dant will succeed at this step if he "comes forward with some
evidence of government" inducement. United States v. Burk-
ley, 591 F.2d 903, 913 (D.C. Cir. 1978) (emphasis added). If
successful at this stage, then the burden shifts to the govern-
ment "to disprove entrapment by demonstrating beyond a
reasonable doubt that the defendant was predisposed to
commit the crime." United States v. Budd, 23 F.3d 442, 445
(D.C. Cir. 1994); see also United States v. Neville, 82 F.3d
1101, 1107 (D.C. Cir. 1996).
Under this approach, "the jury, and not the judge, deter-
mines whether the defendant has carried the burden of
demonstrating that there is some evidence of inducement and,
if so, whether the government has met its burden of proving
predisposition." Budd, 23 F.3d at 445; see also United
States v. Whoie, 925 F.2d 1481, 1483 (D.C. Cir. 1991). In this
case, the jury considered testimony on both inducement and
predisposition. Given that the jury found Sumlin guilty, we
cannot know whether the jury based its verdict on a finding
that Sumlin was not induced, or, if he was, that he was
nonetheless predisposed to commit the crime. We therefore
"focus[ ] on the predisposition issue" and uphold the jury's
verdict if, viewing the evidence in a light most favorable to
the Government, "a reasonable jury could have found that the
Government proved beyond a reasonable doubt that the de-
fendant was predisposed to commit the crime." Neville, 82
F.3d at 1107.
Recognizing that predisposition is "the principal element in
the defense of entrapment," United States v. Russell, 411
U.S. 423, 433 (1973), we focus "upon whether the defendant
was an 'unwary innocent' or, instead, an 'unwary criminal'
who readily availed himself of the opportunity to perpetrate
the crime." Mathews, 485 U.S. at 63. The Government must
therefore prove a "state of mind which readily responds to
the opportunity furnished by the officer or his agent to
commit the forbidden act." Burkley, 591 F.2d at 916 (inter-
nal quotations omitted). In evaluating a defendant's predis-
position, we look to all of the events surrounding the ultimate
commission of the crime. See United States v. Kelly, 748
F.2d 691, 699 (D.C. Cir. 1984).
Viewing the evidence in a light most favorable to the
Government, we find sufficient evidence to support a jury's
finding that Sumlin was predisposed to commit the crimes for
which he was convicted. For example, the jury considered
evidence that Sumlin had pled guilty to selling crack cocaine.
The jury also considered evidence that showed Sumlin en-
gaged in at least four, and as many as seven, prior drug
transactions with Clayton during 1998. Moreover, Sumlin's
own admissions show "he had been dabbling a little in the
[drug trafficking] game," that "he was receiving about a
'ki[logram]' a week to a week and a-half," and that "he had a
connection through Indiana." The jury also heard evidence
that Sumlin told Goode and Alston during the April 6 drug
sale that he could supply them with whatever amount of
drugs they needed. During this same drug sale, Sumlin told
Goode and Alston that he had a "whole brick," or kilogram, of
additional cocaine to sell. We find this evidence more than
sufficient for a reasonable jury to find beyond a reasonable
doubt that Sumlin was predisposed to sell cocaine.
Sumlin's assertions that he was "reluctant," unfamiliar with
drug jargon, and lacked overt signs of participation in the
drug trade fail to convince us that the jury's verdict was
unreasonable. At best, Sumlin was an unwary criminal. See
Mathews, 485 U.S. at 63. Unwariness, however, does not
preclude predisposition. We conclude, as did a reasonable
jury, that the Government proved beyond a reasonable doubt
that Sumlin was predisposed to commit the crimes for which
he was charged and convicted.
III. Conclusion
For the foregoing reasons, appellant's convictions in the
district court are affirmed.