United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 2005 Decided June 3, 2005
No. 04-3135
UNITED STATES OF AMERICA,
APPELLEE
v.
TALIB D. WATSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00314-01)
Robert J. Kovacev argued the cause for appellant. With him
on the briefs was Stacy D. Belf.
Mary B. McCord, Assistant U.S. Attorney, U.S. Attorney's
Office, argued the cause for appellee. With her on the brief
were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher
and Roy W. McLeese, III, Assistant U.S. Attorneys.
Before: SENTELLE, RANDOLPH and ROBERTS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
2
SENTELLE, Circuit Judge: This case comes before us on
appeal from the United States District Court for the District of
Columbia. Appellant-Defendant Talib Watson challenges his
criminal conviction on two grounds: First, he submits that the
trial court abused its discretion by limiting cross-examination of
a police officer and of a cooperating witness. Second, he
submits that the trial court abused its discretion by admitting
evidence regarding Defendant’s prior bad acts when Defendant
was notified of the nature of the evidence only shortly before the
court commenced voir dire examination of the jury. For the
reasons set forth below, this Court affirms Watson’s conviction
and remands the record to the District Court for re-sentencing in
light of the Supreme Court’s recent decision in United States v.
Booker.
I. Background
A. The Stop, the Search, the Arrest, and the Questions
On June 23, 2003, Watson was driving in Northwest
Washington when he was pulled over by Officer John Cox of the
U.S. Park Police. Cox testified that he pulled Watson over
because the windows of Watson’s Cadillac Escalade were tinted
excessively, in violation of District of Columbia law. Cox
determined that Watson was subject to an outstanding
misdemeanor warrant and arrested him. Watson had $7,675 on
his person. After arresting Watson, Cox searched the Escalade,
finding $1,650 in the center console. The Escalade was moved
to another site, where Cox continued the search. In a side door
panel, he found two firearms: a loaded KelTec 40-caliber semi-
automatic handgun and a loaded Beretta 9-mm pistol. In other
doors he found socks containing more KelTec and Beretta
ammunition. In the back seat and map pocket he found
“hideaway” (i.e., disguised) cans, one of which contained
marijuana and had Watson’s fingerprints on it.
3
Hours later, Cox took Watson out of the jail cell,
whereupon, according to Cox, he allegedly gave him a “rights
card” and read him his Miranda rights, to which Watson replied
“yes” to all questions. No one was present at the time, and the
waiver card allegedly signed by Watson was not produced at
trial. According to Cox’s testimony, Watson admitted to Cox
that the “stuff” in the car was his. Cox did not write down
Watson’s statement.
Police determined that the KelTec handgun had been sold
lawfully to a Russell Lane (“Lane”) by a Christopher Bannock.
The government interviewed Lane in August 2003. In
December 2003, Lane was arrested for unlawful possession of
a firearm and possession of crack cocaine; in early 2004 he
entered a plea agreement in which he was obligated to testify
truthfully for the government in the Watson matter.
Watson was indicted for felonious possession of firearms –
i.e., the KelTec and the Beretta – and ammunition, and for
simple possession of marijuana.
B. Testimony of Cox
At trial, Cox testified to his observations and to his account
of Watson’s alleged admission of ownership of the weapons.
Watson sought to suppress the fruits of Cox’s search, including
Watson’s alleged statements, on the theory that Officer Cox
lacked probable cause to stop Watson’s car and that the stop was
pretextual. At the suppression hearing, Watson, who is black,
attempted to introduce evidence purporting to show that Cox
had a propensity for stopping black drivers on window-tint
charges. In 18 months, Cox allegedly stopped at least 27 black
drivers for window-tint violations that culminated in drug
charges. The District Court refused to allow Watson to cross-
examine Cox on this particular issue, for reasons discussed
4
further below.
At trial, Watson sought to cross-examine Cox regarding 33
cases in which he alleged that Cox had “stopped young black
males for tinted windows and many of those cases also had the
marijuana component to it.” This, he said, suggested Cox’s
“bias” so as to impeach his credibility. The court expressed
skepticism as to the relevance of this line of questioning.
Following arguments, the court precluded that line of cross-
examination, for reasons discussed further below.
In closing arguments, the prosecutor extolled Cox’s
impartiality.
C. Testimony of Lane & Evidence of Prior Bad Acts
At trial, Lane testified that he sold the recovered KelTec
handgun to an individual known as “Q,” whom Lane watched
passing the firearm to Watson. Lane also testified, over
Watson’s objection, that he had previously sold another firearm
to Watson. This second firearm was not a part of the Watson
indictment and was never actually recovered from Watson.
At a status conference one week before the trial began, the
Government warned that it would offer such a “cooperating
witness,” but would not disclose either the witness’s identity or
the “facts and circumstances” surrounding his testimony. The
government did not give notice that the witness would be
offering Rule 404(b) (“prior bad acts”) evidence. Watson notes
that the Government had stated during discovery that it had no
404(b) evidence “at this time,” and never amended that
response. That response was dated August 2, 2003, before the
Government contacted Lane and months before Lane’s
December 2003 arrest and subsequent plea bargain.
5
On the day the trial began, before jury voir dire, the
Government revealed Lane’s identity and the fact that Lane
would testify to the two KelTec handguns he sold Watson (only
one of which Cox recovered). Watson objected to the late
notice.
Following voir dire, the prosecutor turned over to Watson’s
counsel a large amount of information about Lane, and
suggested that after arguments the court break for the day so that
Watson’s counsel could have an opportunity to go over the
material. But Watson’s counsel disagreed, suggesting that the
government begin direct examination of its first witness, saying,
“I would be ready to go in the morning.” After lunch, defense
counsel changed course and raised the Rule 404(b) notice
requirement, arguing he wasn’t sure he had “ample notice to do
a thorough investigation and a meaningful cross-examination.”
The court ruled that it would permit introduction of the 404(b)
evidence.
Lane testified less than 48 hours after the prosecutor
revealed Lane’s identity. While Lane was on the stand, defense
counsel cross-examined him regarding his plea agreement. The
defense sought to challenge Lane’s credibility by questioning
him about an exchange between the prosecutor1 and the judge in
Lane’s case regarding the prosecutor’s recommendation that
Lane be released pending sentencing. The exchange was as
follows:
The Court: All right, when do you want to come back?
Prosecutor: Your honor, the government is actually
particularly optimistic about Mr. Lane’s ability to complete
1 The same prosecutor represented the government in both
Lane’s and Watson’s cases.
6
his cooperation within the next three or four months. It’s a
scheduling matter.
See Tr. of June 4, 2004 at 142 (from the Watson proceeding,
reading back the exchange from the Lane proceeding). On
cross-examination, Watson’s counsel sought to introduce this
statement as to the prosecutor’s “optimis[m],” arguing at the
ensuing bench conference that this was evidence of bias on
Lane’s part, in that it showed that Lane had committed to
“cooperate” by supplying prosecution-favored testimony –
whether truthful or not. The prosecutor argued, and the court
agreed, that the statement went to a scheduling matter, not to the
substance of Lane’s Watson-case testimony. “Cooperation”
meant nothing more than testifying per se, not testifying
favorably. The judge did not preclude cross-examination, but
instructed defense counsel that cross-examination would have to
focus on “the whole context of [the statement].” Defense
counsel did not challenge this ruling; instead, he said, “I’ll move
on. I’ll move on.” The Court sustained the prosecutor’s
objection.
In closing arguments, the prosecutor extolled Lane’s
credibility.
D. Conviction and Sentencing
On June 8, 2004, the jury found Watson guilty of firearms
and drug offenses, and not guilty of an ammunition offense. On
September 9, 2004, the court sentenced Watson to 108 months’
imprisonment on the firearms offense and 12 months’
imprisonment on the marijuana offense, to be served
concurrently, followed by three years of supervised release.
7
II. Analysis
A. Standard of Review
This Court reviews a district court’s evidentiary rulings for
abuse of discretion. United States v. Whitmore, 359 F.3d 609,
616 (D.C. Cir. 2004); United States v. Alexander, 331 F.3d 116,
122 (D.C. Cir. 2003). Despite the guarantees of the Sixth
Amendment’s Confrontation clause,
[t]he district court nonetheless has considerable discretion
to place reasonable limits on a criminal defendant’s
presentation of evidence and cross-examination of
government witnesses. It must be cautious, however,
particularly where a party is seeking to impeach a witness
whose credibility could have an important influence on the
outcome of the trial.
Whitmore, 359 F.3d at 615-16 (citations and quotation marks
omitted). Because “[w]e . . . recognize that the district court is
in the best position to conduct the balancing test,” we “review
a FED . R. EVID. 403 ruling ‘only for grave abuse.’” Id. at 619
(quoting United States v. Cassell, 292 F.3d 788, 795 (D.C. Cir.
2003)).
B. Cross-Examinations of Cox & Lane
1. Officer Cox
Watson argues that, by precluding defense counsel from
questioning Officer Cox about approximately thirty cases where
he allegedly stopped black men on window-tint violations but
eventually arrested them on drug charges, the court
inappropriately “foreclosed all examination” into Cox’s
credibility in violation of Watson’s Sixth Amendment right to
8
confront witnesses brought against him. Br. for Appellant at 16.
This issue, Watson urges, “is key to the Government’s case.”
Id.
In Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986),
which similarly dealt with potential witness bias, the Supreme
Court held that “the exposure of a witness’[s] motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Watson
argues that under Van Arsdall, therefore, a trial court may not
“prohibit[] all inquiry” into the bias of a witness. Br. for
Appellant at 16 (quoting Delaware v. Van Arsdall, 475 U.S. at
679 (emphasis in original)). But Van Arsdall reminds in terms
equally strong that the Constitution does not give a defendant
limitless discretion in presenting evidence for purposes of
witness impeachment:
It does not follow, of course, that the Confrontation Clause
of the Sixth Amendment prevents a trial judge from
imposing any limits on defense counsel’s inquiry into the
potential bias of a prosecution witness. On the contrary,
trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’[s] safety, or interrogation that is repetitive or only
marginally relevant. And as we observed earlier this Term,
“the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the
defense might wish.”
Van Arsdall, 475 U.S. at 679 (quoting Delaware v. Fensterer,
474 U.S. 15, 20 (1985) (per curiam) (emphasis in original)).
9
A trial court may prevent the introduction of evidence “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. In
this case, evidence that Cox may have arrested (or stopped)
various persons of a common demographic on common charges
could not logically be probative of bias absent evidence (1) that
Cox knew of the driver’s race before stopping him, and, more
importantly, (2) that the officer’s record of like arrests is
composed disproportionately of arrests of members of that
demographic group. At the motion hearing, Cox testified
without contradiction that he could not see the driver of
Watson’s vehicle. Tr. of Jan. 16, 2004, at 43. Moreover,
defense counsel failed to offer any showing of disparate
treatment sufficient to justify further inquiry into alleged racial
bias or profiling on Cox’s part. As the trial judge noted, the
proposed cross-examination “would in essence be multiple steps
removed from actually being able to demonstrate that there was
in any way a racial bias on the part of the police officer in this
particular case such that his credibility . . . would be placed into
question.” Tr. of June 3, 2004.
In sum, the relevance of the evidence was not readily
apparent given the lack of information regarding Cox’s arrests
of members of other demographic groups, and its probative
value was substantially outweighed by the threat of undue delay
or confusion of issues inherent in a drawn-out inquiry into the
details of Cox’s history of arrests. This Court holds that the trial
court acted well within its discretion by limiting this line of
questioning. A court may not limit “ inquiry” into bias, 475
all
U.S. at 679 (emphasis in original), but it may preclude inquiry
that would be more protracted and prejudicial than probative.
10
2. Russell Lane
Watson also argues that the trial court erred in precluding
cross-examination of cooperating witness Lane that would have
attempted to raise doubts regarding the veracity and motivation
of Lane’s testimony. At issue was the prosecutor’s statement in
Lane’s criminal proceedings that, in the words of Watson,
“suggested that the Government was ‘optimistic’ about Lane’s
testimony.” Br. for Appellant at 16.
As noted above, when the court in Lane’s proceeding asked
the prosecutor for advice regarding the scheduling of Lane’s
case, the prosecutor stated that “the government is actually
particularly optimistic about Mr. Lane’s ability to complete his
cooperation within the next three or four months. It’s a
scheduling matter.” Tr. of June 4, 2004, at 142.
The trial court prohibited defense counsel from raising the
issue in a manner that would have obscured the full context of
the prosecutor’s statement. The court did not preclude all
questioning on this matter in cross-examination of Lane.
Rather, it instructed defense counsel that “if you’re going to go
into a statement in open court that relates to the time frame that
this will occur, you’re going to have to give the whole context
of it. It raises the question of how is it relevant to cross-
examination.” Id. at 143.
The trial court would have allowed this line of questioning
to go forward so long as defense counsel included the entire
statement in its question in order to prevent flagrant distortion
of the exchange, and the jury was provided with extensive
direct- and cross-examination regarding the nature of Lane’s
plea agreement. This Court, therefore, concludes that the trial
court did not abuse its discretion in limiting cross-examination
– certainly not in such a way as to prejudice Watson. As with
11
the foreclosed cross-examination of Cox, the probative value of
this evidence (assuming its relevance) was deemed to have been
outweighed by the threat that the presentation would mislead the
jury. FED. R. EVID. 403. We see no abuse of discretion on the
record before us.
C. Evidence of Prior Bad Acts
Watson argues that the trial court erred in allowing the
prosecution to introduce evidence of prior bad acts, under Rule
404(b) of the Federal Rules of Evidence, despite the
prosecution’s failure to apprise the defense of the nature of the
identity of the witness until the morning of voir dire, only 48
hours before witness Lane was called to testify.
The courts must not treat lightly the “surprise” introduction
of evidence that leaves a criminal defendant without opportunity
to prepare an effective response. Rule 404(b) mandates that
where the government seeks to introduce evidence of prior bad
acts against the defendant, it must “provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.” FED. R. EVID. 404(b).
For that reason, this Court has held that “Rule 404(b) does not
empower a district judge to excuse the government from
providing any notice that it intends to use bad acts evidence.”
United States v. Spinner, 152 F.3d 950, 961 (D.C. Cir. 1998)
(emphasis in original).
In this case, however, the Court need not answer the
question of whether failure to provide notice prior to voir dire is
sufficiently close to failure to provide “any notice” to make this
case analogous to Spinner. Even assuming arguendo that the
prosecution failed to bear its Rule 404(b) notice obligation, this
Court holds that Watson failed to show prejudice from the error.
12
To warrant reversal, an error of the trial court must “affect
substantial rights” – i.e., it must be prejudicial, having an effect
on the outcome of district court proceedings. United States v.
Olano, 507 U.S. 725, 734 (1993) (quoting FED . R. CRIM . P.
52(b)); see also Spinner, 152 F.3d at 961. In this case Watson
has not demonstrated that he suffered any prejudice. His own
counsel initially rejected the prosecutor’s suggestion that the
court recess until the next day in order to give the defense time
to respond to the prosecutor’s late disclosure of the general
nature of the 404(b) evidence. The prosecutor’s suggestion
could not have been more emphatic:
Here is our concern, Your Honor, in deference to [defense
counsel] Mr. Daum. We are now turning over at the lunch
break here a great deal of information to Mr. Daum about
the cooperating witness. There is going to be a long
transcript of information about things that this cooperating
witness told the government. Frankly, I don’t see Mr.
Daum digesting enough of it to be prepared to go forward.
Tr. of June 2, 2004, at 94-95. Watson’s counsel responded, “I
would be ready to go in the morning.” Id. at 95. We recognize
that an argument could be made, although Watson has not
clearly done so, that the language of counsel was directed
toward the timeliness of the Jencks material, and that his
“waiver” of any additional time did not contemplate the
objection to the Rule 404(b) evidence at all. However, it is not
incumbent upon the Court to construct a record, but rather upon
the defense.
Insofar as Watson’s objections to the notice of the Rule
404(b) evidence address the adequacy of the timeliness of the
notice, again, his argument fails on this record. The trial
prosecutor identified the “general nature” of the evidence when
he stated before the commencement of voir dire that
13
What we have here, Your Honor, is a cooperating witness
who is expected to testify that he sold one of the weapons
in this case to the defendant. We intend to prove that by
virtue of that person’s testimony and on top of that a
representative from the legal gun shop where this witness
purchased that weapon offering documentary proof that that
same weapon was purchased by this cooperating witness
and that that same weapon was recovered in the defendant’s
car, a pretty strong evidentiary link.
Tr. of June 2, 2004, at 5. The Government explained further at
7-8:
Now, the other evidentiary matter, Your Honor, deals with
the fact that the cooperating witness actually sold the
defendant two weapons, two Keltec 40-caliber
semiautomatic handguns that are one serial number apart.
The government, because of security concerns, was not
willing to make anything known about this cooperating
witness until the day of trial and we can represent to the
court that two virtually identical weapons were sold by this
cooperating witness to the defendant between the dates of
May 3, 2003 and June 23, 2003 and we ask that the
cooperating witness be permitted to testify as to both of
those instances because they go to identification. The
second cell [sic] of the weapon would go to identification.
It would go to knowledge, it would go to absence of
mistake, plan – scheme or plan to own 40-caliber Keltecs.
(Emphasis added.)
Notice of “general nature” is all that Rule 404(b) requires. We
have located no precedent of this circuit defining “general
nature,” nor has appellant supplied any definitive source. One
academic source has noted that “the concept of ‘general nature’
has been liberally construed.” See 1 MICHAEL H. GRAHAM ,
14
HANDBOOK OF F EDERAL EVIDENCE § 404.5 at 363-64 & n.45
(5th ed. 2001) (citing United States v. Robinson, 110 F.3d 1320,
1325-26 (8th Cir. 1997)). See also United States v. Watt, 911 F.
Supp. 538, 556-57 (D.D.C. 1995) (“Moreover, courts have
routinely denied requests by defendants for greater particularity
in 404(b) notice.”) (collecting cases).
Given that appellant’s argument does not spell out any
flaws in the timeliness of the notice, specificity as to the date,
time, and other details of the 404(b) evidence, the notice was
adequate under the Rules. In sum, Watson’s counsel
specifically declared at trial that introduction of the evidence at
such a late time did not impede the defense, and Watson has
offered no reason for this Court to second-guess that decision or
the judgment of the Court.
III. Conclusion
For the foregoing reasons, this Court affirms the conviction
of the District Court. We further instruct, and the parties agree,
that we will retain jurisdiction over this case but remand the
record to the District Court for re-sentencing in light of the
Supreme Court’s recent decision in United States v. Booker, 125
S.Ct. 738 (2005). See United States v. Coles, 403 F.3d 764, 769-
71 (D.C. Cir. 2005).