United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2002 Decided January 24, 2003
No. 01-3071
United States of America,
Appellee
v.
Gary Bailey,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00164-04)
David B. Smith, appointed by the court, argued the cause
and filed the brief for appellant.
Susan A. Nellor, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr.,
and John Crabb, Jr., Assistant U.S. Attorneys.
Before: Randolph and Garland, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Williams.
Williams, Senior Circuit Judge: A jury convicted Gary
Bailey of conspiracy to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. ss 846, 841(a)(1),
841(b)(1)(B)(ii) (2000). The court sentenced Bailey to 130
months' imprisonment and to eight years of supervised re-
lease. In this appeal, Bailey challenges three evidentiary
rulings by the district court. We affirm the district court,
finding that while two of Bailey's challenges have merit, the
errors were harmless.
According to the government's evidence, Bailey supplied
five kilograms of powder cocaine to Daniel Clayton on April
15, 1999 for use in a drug deal near the Watergate Hotel.
Bailey owned the cocaine, and Clayton (who pled guilty and
testified for the government) served as a "broker" for its sale.
Clayton drove the cocaine from New York to Washington in a
Honda with a secret compartment (a "trap") installed by a
third defendant, Darryl Simmons, who flew down to D.C.
separately. Bailey followed Clayton in an Acura. Bailey and
Clayton later picked up Simmons from the airport in D.C.,
and the two cars went on to the Watergate area. Though the
deal was originally for five kilos of crack cocaine (apparently
Simmons was going to "cook" the powder cocaine in D.C. to
make it crack once it was clear that the sale would go
through), the quantity was for some reason later reduced, and
the police were given four kilos of powder. Clayton and
another defendant gave the cocaine to the "buyer," Kevin
Goode, a Drug Enforcement Administration "cooperator."
After inspecting the contents, Goode gave the signal, and
officers arrested Clayton, Bailey and another defendant.
Simmons escaped initially but was eventually arrested in New
York.
Several items of evidence linked Bailey to the drug transac-
tion. When Bailey was arrested, he was in the Acura, which
several officers had seen driving in tandem with the Honda--
arriving at the Watergate area, proceeding to the airport to
pick up Simmons (who knew how to get the cocaine out of the
trap), and returning to the Watergate area. Throughout
these peregrinations the Acura that Bailey drove stuck with
the Honda that contained the cocaine; observing officers saw
the vehicles making U-turns together, indeed virtually
"bumper locked." In the Acura was a piece of paper with
Clayton's cell phone number, and Bailey's cell phone records
showed five calls to Clayton's cell phone on April 15, and two
on the day before. Clayton testified extensively about Bai-
ley's involvement. Simmons testified that he let Clayton use
his Honda with the secret compartment to carry the drugs,
and that while Clayton was in the Honda in New York,
Simmons saw Clayton transfer the drugs from a car that
Bailey was driving and put them into the Honda.
The government also introduced evidence of other drug
deals of Bailey's. First, Clayton testified that before the
April 15 deal, he had made between seven and twelve powder
cocaine deals with Bailey over a nine-month period, ranging
from three ounces to three quarters of a kilogram. There
was also testimony of two specific drug episodes in New York.
First, an officer testified about finding two small bags of
cocaine on Bailey, totaling about 50 grams, on February 2,
2000. Second, several witnesses testified to a cocaine trans-
action in the Bronx on June 12, 1998, in which 225 grams of
cocaine were found in Bailey's car. Both Clayton's vague
reference (the seven to twelve deals) and the two New York
transactions were admitted under Rule 404(b) of the Federal
Rules of Evidence to show knowledge, motive, opportunity,
intent, and plan. There is no dispute about those admissions
or the court's instruction allowing that use. But there was
also an instruction--hotly contested--allowing the jury to
consider the two New York transactions to corroborate Clay-
ton's testimony about his prior drug transactions with Bailey.
Finally, the government produced an expert witness, De-
tective Tyrone Thomas, who testified as to the modus operan-
di of drug dealers. The testimony tended to explain the
maneuvers of Bailey and his colleagues in terms of the
purposes and problems facing participants in major drug
deals.
The defense was skimpy. Bailey did not testify at all. The
core of his defense appeared to rest on evidence that a
number of ladies' clothes, including undergarments, were
found in the Acura. He was apparently trying to show that
he had come to the District to have a tryst with a woman--
though he offered no evidence that such a project was mutu-
ally exclusive with a drug deal. In cross-examination he
severely attacked the credibility of Clayton.
Bailey raises three challenges. First, he argues that it was
error to prevent him from eliciting testimony that he had not
yet been tried on his two New York offenses. Second, he
argues that the jury should not have been instructed that it
could use the evidence of his two prior New York offenses to
corroborate Clayton's testimony. Finally, he argues that
Detective Thomas's testimony violated Rule 704(b) by sug-
gesting that the witness had some special insight into Bailey's
mental processes.
* * *
Admissibility of the Legal Status of Bailey's Past Acts
Bailey first argues that he should have been allowed to
elicit testimony that he had not yet been tried for the two
New York offenses that were introduced under Federal Rule
of Evidence 404(b). We review this claim for abuse of
discretion. See United States v. Clarke, 24 F.3d 257, 267
(D.C. Cir. 1994).
Since the government has given us no affirmative reason
for excluding the evidence of the legal status of defendant's
other acts, the question is whether that evidence is relevant
under Federal Rule of Evidence 401. It defines relevant
evidence as "evidence having any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it
would be without the evidence." Fed. R. Evid. 401. At first
glance, the relevance of the fact that Bailey had not yet been
tried for the other crimes appears feeble to non-existent.
While an affirmative government decision not to prosecute
may suggest weakness in the government's evidence, the
simple fact that the prosecution will likely take place in the
future supports no such inference.
But Bailey argues that the jury would speculate about
whether or not he had been convicted of the 404(b) crimes,
and would likely infer conviction from silence. The govern-
ment's evidence of the crimes took the form of the arresting
officers' testimony about the narcotics transactions and the
ensuing arrests. It seems plausible that not a few jurors
would have speculated that conviction followed. We can find
no case directly holding that evidence is relevant solely to
refute a likely mistaken jury inference (though there are a
few where that appears to be the dominant purpose, see, e.g.,
United States v. Powell, 226 F.3d 1181, 1199 (10th Cir. 2000);
United States v. Johnson, 802 F.2d 1459, 1463-64 (D.C. Cir.
1986)); one case, United States v. Jones, 808 F.2d 561 (7th
Cir. 1986), mentions the possible use of an acquittal for the
specific purpose of correcting jury speculation that the defen-
dant had been convicted, but reaches no conclusion on rele-
vance, id. at 566-67. Our own closest case, United States v.
Thomas, 114 F.3d 228 (D.C. Cir. 1997), also considers the
admissibility of an acquittal, but not its possible relevance to
rebut an inference of conviction, and in any event ultimately
goes off on narrow factual grounds. Id. at 249-50. We think
that if the jury inference is plausible, evidence to rebut that
inference is relevant. A similar theory may underlie the
Supreme Court's positive emphasis, in Dowling v. United
States, 493 U.S. 342 (1990), on the trial court's having twice
instructed the jury that the defendant had been acquitted on
the 404(b) crime, id. at 345-46, 353.
Jones, mentioned above as entertaining the possible rele-
vance of acquittal for refuting mistaken jury speculation, in
the end upheld exclusion on the grounds of possible prejudice,
808 F.2d at 566-67, presumably the risk that the jury might
overread acquittal to signify innocence rather than merely
failure of the government to show guilt beyond a reasonable
doubt. Plainly the risk of prejudice (which under Rule 403
would support exclusion) is far less in the case of mere
evidence that the defendant hasn't yet been tried; indeed, as
we said earlier, the government never adduced any affirma-
tive reason to exclude the evidence.
Evidence that no trial has occurred need not raise the sort
of hearsay issues posed by convictions or acquittals. Where
either of those is offered to show commission or non-
commission of the acts in question, they are hearsay: in effect
they simply quote the assertion of 12 jurors (who did not
themselves perceive the acts charged) that the person did or
didn't do the acts. But convictions come into evidence all the
time--thanks to the Rules' explicit provision of a hearsay
exception, Federal Rule of Evidence 803(22). No comparable
exception exists for acquittals, though other exceptions, such
as the one for public records, see Rule 803(8), may allow some
uses of acquittals. But evidence that a defendant has not
been tried on a charge, where offered simply as proof that he
has not been tried and convicted, is not hearsay. Obviously
the defendant knows that directly; non-hearsay reports as to
the absence of relevant court records provide an alternative
means. In most cases, we should expect, the parties could
resolve it by stipulation.
Having found that the evidence was relevant and that there
was no affirmative reason for exclusion, we believe the exclu-
sion was error--though we hesitate to find abuse of discre-
tion, given the narrow purpose the evidence would have
served. In any event any error was harmless.
For nonconstitutional error, an appellate court must deter-
mine with "fair assurance ... that the judgment was not
substantially swayed by the error." Kotteakos v. United
States, 328 U.S. 750, 765 (1946). The judge here expressed
his concern that there might be an "improper [jury] inference
that Mr. Bailey was convicted of these charges which are now
still pending," 2 Trial Tr. at 250, and sought to cure the
problem by instructing the jury, "You may not consider or
speculate about the status of any charges against the defen-
dant in that case." 5 Trial Tr. at 234. We think this
considerably reduced the risk that the jury might leap to the
conclusion that the defendant had been convicted.
Beyond the judge's instruction, the government's evidence
was quite strong, both on the whole and as to these past
incidents. Several law enforcement officers testified to the
June 12, 1998 offense. They had been surveilling one Robert
Hunt, who had agreed to sell cocaine to an undercover police
officer. They saw Bailey conferring with Hunt immediately
before Hunt made the sale. As the police were arresting the
participants and searching the apartment where the sale
occurred, Bailey looked in the direction of the police, threw
his keys on the ground, and walked away. Inside the car that
matched the keys, the police found 225 grams of cocaine, and
inside Bailey's wallet they found a registration for the car in
Bailey's mother's name. For the February 2, 2000 incident,
the police found two bags of cocaine1 in Bailey's pocket. It is
highly likely that the jury would have found these incidents to
be true even if it had been told that Bailey hadn't yet been
tried. Further, the government's case as a whole was strong,
consisting of both the direct testimony of Clayton and Sim-
mons, the strong circumstantial evidence, and the expert
testimony of Detective Thomas. For these reasons, we have
a fair assurance that the judgment was not substantially
swayed by the error.
Use of Rule 404(b) Evidence for Corroboration
The two New York incidents are the source of another
argument--that the court erred in instructing the jury that it
could use the incidents to corroborate Clayton's testimony
that he had engaged in prior cocaine deals with Bailey, and
thus his story about the crime actually charged. The parties
agree that the two incidents were properly admitted under
Rule 404(b) to show knowledge, motive, opportunity, intent
and plan, and dispute only the corroboration instruction. We
review for abuse of discretion. Cf. United States v. Bowie,
__________
1 The testimony as to the exact amount of cocaine is obscurely
worded: "Two-one-eighths ounce plus forty-seven-point-four
gram[s]." 4 Trial Tr. 246.
232 F.3d 923, 926-27 (D.C. Cir. 2000) (stating standard of
review for admission of 404(b) evidence).
Bailey argues that before evidence is used under Rule
404(b) for corroboration it should have to pass two extra
screens imposed by two other circuits--that the corroboration
be direct and the corroborated matter be significant. See
United States v. Pitts, 6 F.3d 1366, 1370-71 (9th Cir. 1993);
United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987).
But we rejected the approach of these circuits in Bowie, 232
F.3d at 933 n.7, reasoning that any special concerns were
properly addressed in balancing probative value against prej-
udice, etc. under Rule 403. Bailey attempts to distinguish
Bowie on the ground that there the corroboration was of the
act actually charged in the indictment, while in this case, the
corroboration is only of other acts admitted under 404(b)
(Clayton's prior seven to twelve cocaine deals with Bailey).
But Bowie itself makes no such distinction, and no language
in Rule 404(b) supports it.
Nonetheless, use of 404(b) evidence for corroboration does
have inherent complications. Corroboration, in and of itself,
is not a separate purpose belonging in the open class of
permissible purposes referred to in Rule 404(b)'s second
sentence. If it were, evidence could slide past the rule
against improper character evidence. To decide if Rule
404(b) evidence is admissible for corroboration, the court
must determine what is being corroborated and how. If
similar past acts were corroborative only because they
showed the defendant's character and the likelihood of "action
in conformity therewith," plainly the rule would call for
exclusion. On the other hand, evidence might corroborate a
witness's testimony by showing plan, purpose, intent, etc. and
therefore be admissible under 404(b). The label "corrobora-
tion" thus merely invites a closer look at exactly how the
evidence may be probative.
Clayton, it will be recalled, was not himself a part of
Bailey's two New York drug deals. The only legitimate way
for that evidence to corroborate Clayton's testimony was to
help show Bailey's knowledge, intent, etc. as to the seven to
twelve Rule 404(b) drug deals that Clayton mentioned. In
other words, they were 404(b) evidence for Clayton's 404(b)
evidence.
As to Bailey's intent or purpose in the seven to twelve
incidents, it is hard to see how the New York deals could add.
Clayton had summarily described the deals, making clear that
they involved cocaine and that Bailey was selling to him, see 4
Trial Tr. 7-11, but Clayton had never in any way put Bailey's
state of mind in issue. Bailey could have been a zombie
throughout the seven to twelve deals, and the fact would not
have contradicted Clayton's testimony in the slightest. But
the incidents do help to show that Bailey had opportunities to
acquire cocaine, and at least the 1998 incident (involving some
semblance of a drug deal rather than mere possession) seems
relevant to show knowledge of how to deal in cocaine.
In the weighing required by Rule 403, however, the evi-
dence had little probative value for permissible corroborative
purposes. Given the vague nature of Clayton's testimony
about the seven to twelve past deals with Bailey, jury interest
in the sort of opportunity and knowledge described was likely
minimal. On the other side, by contrast, there were risks of
unfair prejudice, confusion and misleading the jury. The
permissible link is subtle, the impermissible one obvious and
likely to be salient. The likelihood of confusion and prejudice
seems overwhelming, at least in the absence of a clear and
emphatic instruction, the framing of which strikes us as a
daunting task. In any event, no such instruction was even
attempted here, rendering the corroboration instruction er-
ror.
But this error was harmless. The incremental effect of the
corroboration instruction was likely very small. It seems
improbable that it did much to strengthen the jury's belief in
Clayton, especially as the evidence of the New York incidents
had already been properly admitted. And the case against
Bailey was generally strong. We do not think the jury's
judgment was substantially swayed by the error, even in
combination with the error discussed above.
Testimony of Detective Thomas
Bailey's last objection is to the allowance of testimony that
he says violated Rule 704(b)'s ban on an expert witness's
giving an opinion as to "whether the defendant did or did not
have the mental state or condition constituting an element of
the crime charged or of a defense thereto." Fed. R. Evid.
704(b). Here he points to the evidence of Detective Thomas.
The closest that testimony came to suggesting that the expert
knew what was in the defendant's head was his statement
that "no one would want to tag along [on a large-scale drug
transaction] who is an innocent person...." 6 Trial Tr. at 16
(emphasis added).
There having been no objection to this testimony, we
review for plain error. United States v. Olano, 507 U.S. 725,
732-35 (1993) (requiring error that is plain and that affected
substantial rights). Because we find no error at all, the extra
elements for plain error need not detain us.
In United States v. Smart, 98 F.3d 1379 (D.C. Cir. 1996),
we said that testimony should not be excluded under Rule
704(b) as long as it is clear that the expert is testifying on the
basis of his knowledge of general criminal practices and not
on some special knowledge of the defendant's mental process-
es. Id. at 1388 (also involving testimony by Detective Thom-
as). We said that this inquiry required consideration of
(1) the language used by the questioner and/or the ex-
pert, including use of the actual word "intent"; and (2)
whether the context of the testimony makes clear to the
jury that the opinion is based on knowledge of general
criminal practices, rather than "some special knowledge
of the defendant's mental processes."
Id.
Here the phrase quoted earlier--that no one would tag
along who was "an innocent person"--is certainly a close
equivalent of what Rule 704(b) excludes, namely stating "the
mental state or condition constituting an element of the crime
charged or of a defense thereto." Clearly prosecutors should
take care not to elicit, and experts not to make, statements
that fall so close to the line. But Smart directs us to consider
the context of the testimony, and here the context would have
told the jury that Thomas was testifying solely from "general
criminal practices."
Thomas's testimony centered on how drugs were distribut-
ed and the roles that workers in the drug world played in
their distribution. He explained that drug dealers at the kilo
level took great precautions against getting caught, using
intermediaries, for example, such as brokers and people
called "mules" who help transport the drugs. He also testi-
fied as to the cities into which drugs are trafficked generally,
the way in which drugs are usually packaged, the difference
between crack and powder cocaine and how transformation
into crack increases the number of highs per unit of cocaine,
the amount of cocaine a person buys at one time for personal
consumption, how much money will be gained by the sale of a
certain quantity of cocaine on the street level, the size and
nature of traps in vehicles used to store drugs, money, or
guns, and the use of informants as opposed to undercover
officers. Thomas's testimony was far broader than the spe-
cific circumstances of Bailey's activities. Additionally, many
of the specifics to which he testified had little to do with
Bailey's mental state. His testimony was clearly intended to
give the jury information about the way high-level drug sales
worked.
Further, we said in Smart that if it is made clear to the
jury that the expert was not qualified to testify to the
ultimate issue of intent, there is no violation of Rule 704(b).
Smart, 98 F.3d at 1389. That was made clear here. Detec-
tive Thomas frequently specified the source of his testimony.
For instance, in discussion about whether drug dealers deal-
ing with kilo-size weights normally arm themselves, Thomas
said that he had been involved in a couple of hundred
investigations where kilograms of cocaine were being sold,
and that in only 15% of them were any sort of weapons
involved. In discussing how many doses of crack five kilos of
powder cocaine would yield, Thomas prefaced his answer by
saying that it was what he knew from personal experience in
his past work for the police department and drug enforce-
ment.
And at a number of points Thomas explicitly noted his
limited connection to the facts of the Bailey case. In answer-
ing the defense counsel's question on cross examination of
whether he was "talking about the facts in this case," Thomas
replied by saying, "No, I don't know the facts, all the facts in
this case. I wasn't a part of the investigation." 6 Trial Tr. at
18. He said he had never met Bailey "that I can recall, and I
know nothing about him, that I know of. No." Id. at 33.
And in virtually the final impression that Thomas left with
the jury, on redirect, he and government counsel had the
following exchange:
Q: Were you involved in the investigation of Mr. Bai-
ley?
A: No, I wasn't.
Q: Did you do surveillance?
A: No, I didn't.
Q: Did you have any involvement at all in that investi-
gation?
A: None, whatsoever.
Q: Is your testimony yesterday and today about your
general experience?
A: That's what I'm testifying, my general experience
that I've accumulated over twenty-nine years of investi-
gating narcotics[,] as what I've learned as how narcotic
deals go.
Id. at 50. These statements clear up any suggestion that
Thomas might have purported to rest the "innocent" com-
ment on any special knowledge of the defendant's mental
processes. Admission of his testimony was not error, and
therefore we need not reach the other elements of plain error.
The judgment of conviction and sentence are
Affirmed.