United States v. McCallum

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 10-234 (RWR)
)
WINSTON MCCALLUM )
)
Defendant. )
____________________________ )

MEMORANDUM OPINION AND ORDER

Defendant Winston McCallum went to trial charged in a two-

count superseding indictment with unlawful possession with intent

to distribute 28 grams or more of cocaine base, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and unlawful

possession with intent to distribute 28 grams or more of cocaine

base within 1000 feet of a school, in violation of 21 U.S.C.

§ 860(a). McCallum successfully moved for a mistrial when he

discovered that the government failed to disclose certain

statements of government witnesses before the defense cross-

examined those witnesses. McCallum now moves to dismiss the

indictment on the ground that the Double Jeopardy Clause bars

retrial or, in the alternative, moves for reconsideration of the

pre-trial order denying his motion to suppress evidence. Because

McCallum has not established that the government’s series of

disclosure violations was intended to provoke McCallum into

seeking a mistrial, double jeopardy does not bar retrial. In

addition, the belatedly disclosed evidence does not change the
 -2-

determination to deny the motion to suppress, thus McCallum’s

motion will be denied.

The government moves in limine to preclude McCallum from

introducing at retrial evidence of complaints against the police

officer witnesses and also moves in limine to preclude McCallum

from introducing opinion and reputation evidence about those

witnesses. Because the complaints lacked probative or

impeachment value, and the circumstances surrounding the

complaints do not support a reasonable belief that the

allegations in the complaints are true, McCallum will not be

permitted to elicit on cross-examination the fact that complaints

were filed or what the complaints alleged. Finally, in the

absence of a specific proffer by McCallum of a foundation for

potential character witnesses, a ruling on the admissibility of

opinion and reputation evidence will be deferred.1

BACKGROUND

On July 28, 2010, Officers Alphonso Matos and Ismael Chapa

of the Metropolitan Police Department (“MPD”) were driving in a

squad car shortly after midnight in an area known for having a

1
At a March 21, 2012 hearing on the motions mentioned above,
McCallum’s separate motion in limine for reconsideration of an
evidentiary ruling made at trial was granted in part and denied
in part. At retrial, McCallum will be permitted to cross-examine
Metropolitan Police Department Officer Alphonso Matos, in
accordance with the limitations imposed at the hearing, about
testimony Matos gave at an unrelated criminal proceeding in the
District of Columbia Superior Court.
 -3-

high incidence of narcotics trafficking and intoxicated people.

According to the officers’ pre-trial testimony, which was

credited during hearings on February 11, 2011 and June 6, 2011,

the officers saw McCallum on a ledge at the front entrance of an

apartment building, and he was leaning forward, as if he were

asleep or intoxicated. The officers got out of their car to

check on McCallum, and Chapa positioned himself between McCallum

and the building, at the top of a series of steps of the landing

in front of the apartment building. McCallum became aware of the

officers’ presence, and began to run toward the door of the

building. McCallum took between one and three steps, and then

Matos called out for him to stop. Once McCallum stopped, the

officers attempted to corral him, and he began to move his arms

and shift his shoulders from one side to another. The officers

handcuffed McCallum using two sets of interlocking handcuffs.

When McCallum was secured in the handcuffs, Matos asked him if he

had anything illegal on him, and McCallum answered that he had

cocaine. Because the two interlocking sets of handcuffs

permitted McCallum some limited mobility, he was able to move his

hand to his right front pants pocket, and a zip bag containing

crack cocaine fell from his pocket. McCallum was arrested and

charged with unlawful possession with intent to distribute crack

cocaine.
 -4-

McCallum moved to suppress statements and tangible evidence.

At the evidentiary hearing on the motion in February 2011, Matos

was the government’s only witness. The government failed to

provide the defense, before defense counsel’s cross-examination

of Matos, with a transcript of Matos’s previous grand jury

testimony regarding the events leading to McCallum’s arrest.2

During a recess at the hearing and while conferring with

government counsel, defense counsel noticed the transcript on

government counsel’s desk and government counsel then provided it

to the defense. Defense counsel was then permitted additional

cross-examination of Matos based on potential inconsistencies

between his testimony at the suppression hearing and his previous

testimony before the grand jury. McCallum’s motion to suppress

was granted as conceded as to evidence recovered from a search of

his apartment conducted following his arrest, but the motion to

suppress as to evidence seized from the defendant’s person and

the motion to suppress the defendant’s statements at the scene

were denied.

Thereafter, defense counsel contacted government counsel to

inquire whether the grand jury testimony of Chapa, who had not

testified at the February 2011 suppression hearing, contained

exculpatory material. Government counsel in turn disclosed to

2
Defense counsel deems this the first in a series of
disclosure violations precluding retrial.
 -5-

McCallum a transcript of Chapa’s grand jury testimony. McCallum

then filed a motion to reopen the suppression hearing, arguing

that the government had violated its Brady obligations in not

disclosing Chapa’s grand jury testimony earlier and that the

testimony presented an account of defendant’s arrest that was

inconsistent with Matos’s account, undercutting the conclusion

that the officers possessed reasonable suspicion for stopping

McCallum.3 The motion to reopen the suppression hearing was

granted, and at a hearing in June 2011, McCallum’s counsel cross-

examined Officer Chapa regarding the newly disclosed information.

The court reaffirmed its denial of the motion to suppress, as to

evidence seized from defendant’s person and as to defendant’s

statements on the scene.

Before trial, McCallum subpoenaed from the Metropolitan

Police Department information regarding complaints against the

officers who had arrested him. The government moved to quash the

subpoena. At a hearing on the government’s motion, and in

response to the government’s representation that no relevant or

exculpatory information existed, the court directed the

government to inquire further with the entities that maintain

police complaints regarding the existence of potentially

responsive material. The government then disclosed certain

3
Defense counsel deems the government’s failure to provide
this transcript before the suppression hearing the second in a
series of disclosure violations precluding retrial.
 -6-

information to the court for in camera review,4 including written

summaries of statements concerning McCallum’s arrest made to MPD

Internal Affairs by Chapa on August 15, 2011 and by Matos on

August 17, 2011. The court ordered the government to disclose

those summaries to the defense. The government provided them to

the defense on the morning of trial.5 Also on the morning of

trial, the government disclosed to the defense a “property book”

completed by Matos detailing the evidence recovered from the

scene of defendant’s arrest.6

Trial began in December 2011. While defense counsel cross-

examined Matos about inconsistencies between Matos’s trial

testimony and his prior statements to Internal Affairs, the

officer asserted that the written summaries inaccurately conveyed

what he had told Internal Affairs and that recordings made of the

statements would confirm his account. The government had not

disclosed to the defense the recordings of the officers’

statements to Internal Affairs nor disclosed that they existed.

4
The government’s ex parte, in camera submission has been
filed under seal.
5
Defense counsel deems the failure to disclose these
statements before the suppression hearing the third in a series
of disclosure violations precluding retrial.
6
Defense counsel deems the failure to disclose the property
book before the suppression hearing the fourth in a series of
disclosure violations precluding retrial.
 -7-

Since the government had promised to provide all Jencks7 material

10 days before trial, McCallum moved to strike the testimony of

both officers or, in the alternative, for a mistrial.8 Over the

government’s opposition, the court declared a mistrial but found

that the government’s misconduct was not willful or intentional.

In February 2012, shortly before retrial was set to begin,

the government submitted to the court for in camera inspection

seventeen complaints filed with the independent9 Office of Police

Complaints (“OPC”) against Matos and Chapa.10 Seven against

Matos were in open status and the rest had been closed. The

court reviewed all of the complaints and found that fourteen

complaints bore no allegations that the officers planted

narcotics evidence, had no probative value as other act evidence

under Federal Rule of Evidence 404(b) or as to truthfulness under

Rule 608(b), and otherwise were not material to preparing the

defense, see Fed. R. Crim. P. 16(a)(1)(E)(i), or to McCallum’s

guilt. Nor were most of the open allegations, even if proven, of

7
The Jencks Act, 18 U.S.C. § 3500, requires the government
to disclose to the defense prior statements made by a testifying
government witness concerning the subject of the witness’s direct
examination.
8
Defense counsel deems this violation of Jencks the fifth in
a series of disclosure violations precluding retrial.
9
See D.C. Code §§ 5-1102, 5-1105.
10
The government’s ex parte, in camera submission has been
filed under seal.
 -8-

the type that would likely risk generating a criminal prosecution

or any internal MPD discipline that could cause Matos to want to

curry favor with prosecutors. The court did order three

complaints against the officers for allegedly falsely accusing

individuals of possessing drugs disclosed to the defense.11 In

closed Complaint 10-0146, H.B. alleged that he was falsely

arrested after police, including Chapa, claimed to find in H.B.’s

car drugs that were not there. H.B. alleged that he had gotten

out of the car and was threatened by police with a citation for

leaving the windows down when he returned, that the police asked

for permission to search his car, and that they searched it

anyway when he refused. H.B. alleged that he did not have drugs

in the car. The government produced a D.C. Superior Court record

reflecting that H.B. was charged with possessing a controlled

substance based on the arrest and ultimately pled guilty to the

offense. (Govt.’s Mot. in Limine to Preclude Evidence Concerning

Police Complaints, Ex. 1.) In closed Complaint 10-0385, D.G.

alleged that he was sitting on his porch when Chapa approached

and said that D.G. fit the description of a suspect and that

Chapa then arrested him, took drugs off another person, and put

the drugs on D.G. The government produced a D.C. Superior Court

11
Defense counsel deems the government’s failure to disclose
before the suppression hearing these three complaints and the
seven open complaints to be the sixth and seventh, respectively,
in a series of disclosure violations precluding retrial.
 -9-

record reflecting that D.G. was charged with possessing cocaine,

marijuana, and drug paraphernalia as a result of the arrest and

ultimately pled guilty to the offenses. (Id., Ex. 2.) In open

Complaint 12-0034, E.S. alleged that he called emergency services

when his brother tried to assault him, and that when police,

including Matos, arrived on the scene, they arrested him instead

of his brother for assault and possession of marijuana. He

asserted that he did not have marijuana on his person. The

government represented that “the case was ‘No Papered’ when

reviewed for prosecution by the screening attorney because, among

other things, the police could not determine who was the initial

aggressor and the suspect had a good defense.” (Id. at 4.)12

McCallum now moves to dismiss the indictment, arguing that a

retrial is barred by the Double Jeopardy Clause. Defendant

argues that the government has violated its obligations to timely

disclose exculpatory materials, prior witness statements and

documents. McCallum contends that the violations constitute a

pattern of intentional government misconduct and that the

misconduct has prejudiced his ability to litigate the case. In

12
McCallum does not contest the government’s representations
regarding the three complaints, but states that “[a]lthough two
of these individuals subsequently entered a guilty plea in order
to avoid a sentence of incarceration (the charges against the
third individual were not pursued by the government), each
maintains that the charges against him were false.” (Def.’s
Opp’n to Govt.’s Mot. in Limine to Preclude Evidence Concerning
Police Complaints at 2.)
 -10-

the alternative, McCallum asks the court to reconsider and grant

his motion to suppress the tangible evidence taken from his

person. McCallum argues that reconsideration is warranted

because subsequently produced evidence, particularly the

recording of Matos’s statements to Internal Affairs, casts doubt

on Matos’s testimony at the February 11, 2011 suppression hearing

that McCallum reached into his pocket, despite the fact that his

hands were handcuffed behind his back, and that a ziplock of

crack cocaine fell out. McCallum also contends that additional

evidence reflecting inconsistences in Chapa’s testimony about how

the officers handcuffed McCallum casts doubt on Chapa’s testimony

at the motions hearing in June 2011. Finally, McCallum argues

that the MPD property book, disclosed to the defense after the

suppression ruling, reveals that the crack cocaine allegedly

recovered from McCallum’s person was actually recovered from

McCallum’s apartment. The government argues that it did not

intentionally provoke McCallum into seeking a mistrial and

contests the defendant’s interpretation of the subsequently

disclosed evidence, maintaining that reconsideration of the

suppression ruling is not warranted.

The government filed a motion in limine to preclude evidence

concerning complaints against Chapa and Matos. The government

argues that the information is not probative of the officers’

character for truthfulness and that use of the complaints would
 -11-

be unduly prejudicial. McCallum opposes and argues that the fact

that there are several open complaints against Matos is a proper

subject of cross-examination in order to demonstrate Matos’s

motive to shape his testimony against McCallum in order to curry

favor with the government.13 Defendant further represents that

“[defense] [c]ounsel also has spoken to a fourth individual who

submits that Officer Matos arrested him and falsely accused him

of possessing drugs.” (Def.’s Opp’n to Govt.’s Mot. in Limine to

Preclude Evidence Concerning Police Complaints at 2.) Finally,

the government has filed a motion in limine to preclude opinion

and reputation evidence concerning government witnesses Matos and

Chapa.

DISCUSSION

I. DOUBLE JEOPARDY BAR TO RETRIAL AFTER MISTRIAL

When an initial trial terminates after jeopardy has attached

but before judgment, the reasons for the premature termination

determine whether retrial is barred. Retrial is generally

permitted only where the government establishes “manifest

necessity.” Arizona v. Washington, 434 U.S. 497, 505 (1978).

The manifest necessity standard, however, is not applied in

circumstances where a mistrial is declared on defendant’s own

13
McCallum concedes that he cannot seek to admit the
complaints as extrinsic evidence. (Def.’s Opp’n to Govt.’s Mot.
in Limine to Preclude Evidence Concerning Police Complaints at
2.)
 -12-

motion. In the D.C. Circuit, “[t]he rule that a mistrial on

defendant’s motion generally does not bar retrial is firmly

established.” United States v. Jamison, 505 F.2d 407, 411 (D.C.

Cir. 1974). “Such a motion by the defendant is deemed to be a

deliberate election on his part to forgo his valued right to have

his guilt or innocence determined before the first trier of

fact.” United States v. Scott, 437 U.S. 82, 93 (1978); see also

Jamison, 505 F.2d at 410 (describing mistrials on defendants’

motions as “that category which has most consistently been held

not to bar further proceedings”). “[T]he policy of the Double

Jeopardy Clause, weighed as it always must be against the

interest of the state in pursuing criminal prosecutions to their

conclusions, is simply not thought to require that a defendant be

free of further prosecutions when it was he, and not the judge or

the prosecutor, who sought to have the original prosecution

discontinued.” Jamison, 505 F.2d at 412.

The rule is not categorical. The D.C. Circuit recognized

that “a judge or prosecutor should not be free to have one trial

disbanded and another convened by intentionally committing errors

so prejudicial to the defendant that he is forced to seek a

mistrial; and, indeed, the Supreme Court has made it clear that

in such a case of ‘judicial or prosecutorial overreaching,’

reprosecution might well be barred.” Id. at 411 (quoting United

States v. Jorn, 400 U.S. 470, 485 & n.12 (1971)). The Supreme
 -13-

Court articulated the controlling standard governing retrial

following mistrial on defendant’s motion in Oregon v. Kennedy,

where it held that “[o]nly where the governmental conduct in

question is intended to ‘goad’ the defendant into moving for a

mistrial may a defendant raise the bar of double jeopardy to a

second trial after having succeeded in aborting the first on his

motion.” Oregon v. Kennedy, 456 U.S. 667, 676 (1982) (emphasis

added); see also United States v. Dinitz, 424 U.S. 600, 611

(1976) (“The Double Jeopardy Clause does protect a defendant

against governmental actions intended to provoke mistrial

requests and thereby to subject defendants to the substantial

burdens imposed by multiple prosecutions.”) (emphasis added).

Mere negligence on the part of the government is not enough.

See, e.g., United States v. DiSilvio, 520 F.2d 247, 250 (3rd Cir.

1975) (stating that retrial was not barred where defendant

successfully moved for mistrial because indictment was defective

due to government’s negligence). Indeed, “[p]rosecutorial

conduct that might be viewed as harassment or overreaching, even

if sufficient to justify a mistrial on defendant’s motion . . .

does not bar retrial absent intent on the part of the prosecutor

to subvert the protections afforded by the Double Jeopardy
 -14-

Clause.” Oregon v. Kennedy, 456 U.S. at 675-76 (emphasis

added).14

McCallum argues that the court should use the “manifest

necessity” standard, placing the burden on the government to

justify retrial, rather than the prosecutorial intent standard.

In particular, McCallum argues that because it was the

government’s misconduct that caused the defense to request the

mistrial, this case should be viewed as one in which the mistrial

was at the government’s behest. But Oregon v. Kennedy, a case in

which the prosecutor’s misconduct did precisely that, see 456

U.S. at 669 (discussing facts of case, where prosecutor on

redirect of expert witness had described the defendant as “a

crook,” prompting defendant to successfully move for mistrial)

squarely provides the controlling precedent in such

circumstances. Defendant argues that retrial is nonetheless

barred because, having been deprived of relevant exculpatory

14
Oregon v. Kennedy was a plurality opinion, but a majority
of the justices endorsed the prosecutorial intent standard as the
most appropriate, and manageable, standard for assessing whether
a retrial is available after a mistrial is declared on
defendant’s motion. See Oregon v. Kennedy, 456 U.S. at 675
(concluding that “a standard that examines the intent of the
prosecutor, though certainly not entirely free from practical
difficulties, is a manageable standard to apply”); id. at 679
(Powell, J., concurring) (“I join the Court’s opinion holding
that the intention of a prosecutor determines whether his
conduct, viewed by the defendant and the court as justifying a
mistrial, bars a retrial of the defendant under the Double
Jeopardy Clause.”) (emphasis in original).
 -15-

evidence, he did not knowingly waive his double jeopardy rights

when he moved for a mistrial.

The D.C. Circuit, however, has rejected the theory that a

defendant-initiated mistrial should be judged according the

principles of waiver. In Jamison, 505 F.2d at 413, the court

reasoned that were it to “treat mistrial motions as waivers of

double jeopardy protection . . . [d]efendant would . . . be

protected from multiple prosecutions brought about not by the

government but by the errors or misjudgments of his own

counsel[,]” and concluded that “this goes too far, and hence we

decline to decide the double jeopardy effect of mistrials by

reference to the rules of waiver.” Defense counsel’s arguments

regarding her reasons for seeking mistrial, albeit as an

alternative remedy to striking the officers’ testimony, show that

counsel was engaged in a careful weighing of the pros and cons of

the option. Counsel explained that her determination to move for

a mistrial was informed by her belief that “she had exposed every

weakness she could find in the government’s case,” and “knew that

if a retrial was held, the government would have the advantage of

knowing the defense and these weaknesses.” (Def.’s Mot. to Dis.

Indmt. at 17.) Counsel nonetheless concluded that mistrial was

the better alternative. Counsel argues that had she had the

information regarding the prior complaints against the officers,

she would have moved forward with cross-examination on the

officers’ character for truthfulness and would not have requested
 -16-

a mistrial. (Id.) For reasons that are explained below,

evidence regarding the complaints will be precluded on retrial.

In any event, considerations of the type recounted regarding the

benefits of proceeding with the same jury or seeking retrial are

quintessential strategic judgments of counsel and, even where

those judgments are colored by the conduct or misconduct of

government counsel, they remain the defendant’s own

determinations absent a showing that the prosecutor intended his

conduct to provoke the determination to seek a mistrial.

Applying the Oregon v. Kennedy test then, the question is

whether the prosecutor goaded McCallum into requesting a

mistrial. In considering this inquiry, the case law that is

discussed above focuses on the prosecutor’s actions at trial,

rather than over the course of the entire litigation. In

addition, “[b]ecause ‘subjective’ intent often may be

unknowable,” reliance on “the objective facts and circumstances

of the particular case” may guide the analysis. Oregon v.

Kennedy, 456 U.S. at 679-80 (Powell, J., concurring).

Here, the first two instances of misconduct relate to Brady

violations with respect to defendant’s presentation of evidence

at the suppression hearing. The second two instances fault the

government for providing potentially exculpatory Jencks material

on the morning before trial began. It is the fifth incident --

the government’s failure to produce before trial the oral

recordings of Matos’s and Chapa’s written statements to Internal
 -17-

Affairs -- that could most closely qualify as misconduct that

provoked McCallum to move for a mistrial. Upon consideration of

the parties’ representations regarding the government’s late

discovery of the recordings and prompt efforts thereafter to

produce the recordings to the defendant, however, the court did

not find that there was any intentional withholding of Jencks

material by the government, and did not find any willful conduct

on the part of the prosecutor. Rather, the court characterized

the Jencks violation as unintentional and unfortunate. The

government, moreover, expressly, and apparently genuinely,

objected to the motion for mistrial and proposed reopening cross-

examination of the officers instead. The defendant does not

explain why the prosecution would have wanted a mistrial in the

circumstances. Given McCallum’s arguments that the third,

fourth, and fifth misconduct incidents (and the post-trial sixth

and seventh incidents, as well) had prejudiced the defendant’s

ability to mount a successful defense at trial, it is entirely

unclear why the government would have wanted to terminate a trial

in which it enjoyed the presumptive advantage resulting from the

asserted cumulative prejudice to McCallum. Arguably, the four

pre-trial instances of misconduct might provide a basis for

inferring that the failure to provide the recorded statements was

intentional. But the Oregon v. Kennedy standard focuses not, or

at least not only, on whether the misconduct was intentional, but

on whether the prosecutor intended the misconduct to goad the
 -18-

defendant into seeking a mistrial. Because the facts here

indicate that the prosecutor’s conduct was neither intentional

nor intended to provoke a mistrial, retrial of McCallum is

permitted.

II. RECONSIDERATION OF RULING DENYING MOTION TO SUPPRESS

Courts in this district have uniformly assumed their

authority to entertain motions for reconsideration in criminal

cases. See, e.g., United States v. Coughlin, 821 F. Supp. 2d 8,

17-18 (D.D.C. 2011) (collecting cases). One line of cases

applies the standard applicable to motions to alter or amend a

final judgment under Federal Rule of Civil Procedure 59(e), see,

e.g., United States v. Libby, 429 F. Supp. 2d 46, 46-47 (D.D.C.

2006), under which a movant may prevail by identifying an

intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent

manifest injustice. Other cases apply the “as justice requires”

standard for reconsideration of interlocutory orders. Coughlin,

821 F. Supp. 2d at 18 (internal quotation marks omitted). That

standard asks whether reconsideration is warranted under the

totality of the circumstances, including such factors as “whether

the court has patently misunderstood a party, has made a decision

outside the adversarial issues presented to the court by the

parties, has made an error not of reasoning, but of apprehension,

or where a controlling or significant change in the law or facts

has occurred since the submission of the issue to the court.”
 -19-

Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (internal

quotation marks and alterations omitted).

Under either standard, the availability of new evidence

bearing on the reliability of the testimony given by government

witnesses at the suppression hearing -- particularly the

officers’ statements to internal affairs -- entitles McCallum to

reconsideration of the ruling on his motion to suppress.

However, the alleged inconsistencies brought to light by the

recordings of Matos’s and Chapa’s statements (Def.’s Notice of

Filing Add’l Exs. to Def.’s Mot. to Dis. Indmt. (“Def.’s Add’l

Exs.”), Ex. C; Def.’s Reply, Ex. E) do not alter the

determination to credit the officers’ account of how they

retrieved narcotics from McCallum’s person. Defendant details

the series of allegedly inconsistent statements in his reply

brief. (Def.’s Reply to Govt.’s Resp. Mem. in Opp’n to Def.’s

Mot. to Dis. Indmt. at 13-14.) Given that the statements are

drawn from three different proceedings over a period of several

months, the statements appear to reflect differences in word

choice and emphasis rather than any obvious inconsistency. The

strongest argument for inconsistency is Matos’s recorded

statement, to MPD internal affairs, that the officers put

McCallum in two pairs of handcuffs “because he say he has

something with his hip and he couldn’t get in the car, we said,

we make you comfortable because he’s a big guy.” (Def.’s Add’l

Exs., Ex. C at 21:08.) Defendant maintains that this statement
 -20-

demonstrates that “Mr. McCallum was not placed into two pairs of

handcuffs until the officers tried to put him in the police car

-- long after Mr. McCallum supposedly reached into his pocket

[and the zip locks of cocaine fell out].” (Def.’s Reply to

Govt.’s Resp. Mem. in Opp’n to Def.’s Mot. to Dis. Indmt. at 14-

15.) Although Matos’s statement might be read as defendant

suggests, it may also be read to state general reasons for why

two handcuffs were employed rather than to indicate the exact

moment in time McCallum was handcuffed in the manner described.

The internal affairs investigator asked Matos only why the

officers used two handcuffs. (Def.’s Add’l Exs., Ex. C at

21:06.) She did not ask precisely when the officers put them on.

The government also noted, and McCallum does not appear to

contest, that the officers removed and re-handcuffed McCallum at

least once to enable him to sign a consent form, indicating that

the officers’ prior statements about handcuffing McCallum may

have referred to different points in time.

Neither does the subsequently disclosed property book filled

out by Matos (Def.’s Add’l Exs., Ex. B) call into question the

determination to credit the officers’ testimony. McCallum

attaches significance to the fact that the first property book

entry, reflecting that cash was recovered from defendant’s person

as a result of the search outside the building, states the cash

was “taken from” McCallum and lists an address of “1414 Upshur

Street NW,” while the subsequent entries, reflecting recovery of
 -21-

narcotics, state the narcotics were “taken from” McCallum but

list an address of “1414 Upshur Street NW 105” (emphasis added).

McCallum maintains that the inclusion of the apartment number

(105) in the latter entries indicates that the narcotics were

recovered from the apartment. (Def.’s Add’l Exs. at 1.) The

slight inconsistency in the address entries does not discredit

the testimony offered by both Matos and Chapa that narcotics were

recovered from defendant’s person when defendant was seated

outside the apartment building.15 The difference between the

entries is insufficient to outweigh the largely consistent

testimony of the two officers regarding the recovery of narcotics

from defendant’s person.16

15
The government has submitted a sworn affidavit from Matos
who asserts that “[t]he entries in the property book in no way
reflect, or are intended to reflect, the exact location where the
defendant was positioned when evidence was recovered from him,
and it does not reflect, and it was not intended to reflect, the
exaction [sic] location where any of the evidence was recovered,
at the scene on July 28, 2010.” (Govt.’s Resp. Mem. in Opp’n to
Def.’s Mot. to Dis. Indmt., Ex. 1.)
16
McCallum also argues for reconsideration of the court’s
ruling that the officers did not commit a Miranda violation when
they conducted a Terry stop of him. (Def.’s Mot. to Dis. Indmt.
at 8 n.1; Def.’s Reply to Govt.’s Resp. Mem. in Opp’n to Def.’s
Mot. to Dis. Indmt. at 15-17.) McCallum contends that the court
erred by applying a categorical rule that Terry stops do not
warrant Miranda warnings. Defendant’s request to reconsider the
Miranda ruling would affect the admission only of defendant’s
statements, not of the narcotics allegedly recovered from his
person since the “fruit of the poisonous tree” doctrine does not
apply when the fruit of a Fifth Amendment violation is tangible
evidence. United States v. Patane, 542 U.S. 630, 637, 641 (2004)
(reasoning that since Miranda warnings are prophylactic, a
failure to give them is not alone a Fifth Amendment violation,
and that potential violations of a defendant’s Fifth Amendment
 -22-

III. ADMISSIBILITY OF EVIDENCE OF POLICE COMPLAINTS

The D.C. Circuit has recognized repeatedly that “bias is

always a relevant subject for cross-examination.” United States

v. Lin, 101 F.3d 760, 768 (D.C. Cir. 1996). The Circuit has

acknowledged that “defense counsel cannot have a foundation in

fact for all questions asked on cross examination and . . . a

well reasoned suspicion that a circumstance might be true is

sufficient.” United States v. Fowler, 465 F.2d 664, 666 (citing

United States v. Pugh, 436 F.2d 222, 224 (D.C. Cir. 1970)).

Cross-examining counsel, however, “must have a reasonable basis

for asking questions on cross-examination which tend to

incriminate or degrade the witness and thereby create an

unfounded bias which subsequent testimony cannot fully dispel.”

United States v. Sampol, 636 F.2d 621, 658 (D.C. Cir. 1980).

“[T]he questioner must be in possession of some facts which

support a genuine belief that the witness committed the offense

or the degrading act to which the question relates.” Fowler, 465

F.2d at 666. Counsel therefore must demonstrate that “the

proposed line of cross-examination follow[s] a lead reasonably

suggested by other facts in evidence.” Lin, 101 F.3d at 768.

rights “occur, if at all, only upon the admission of unwarned
statements into evidence at trial”). Reconsideration of the
Miranda ruling is not warranted in any event, as the ruling was
made not in reliance on a categorical rule but on the
circumstances surrounding the Terry stop of McCallum.
 -23-

In United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010),

the D.C. Circuit addressed defendants’ appeal of their

convictions of various narcotics crimes on the grounds that the

government committed a Brady violation when it failed to disclose

evidence about the internal investigation, and resulting

suspension without pay, of a police officer who had been a

government witness. The court, agreeing that disclosure was

required, acknowledged that “based upon her suspension, [the

officer] could have been motivated to testify falsely against

appellants in order to curry favor with the government,” and that

this motive could be argued to the jury with regard to “the fact

that she was being investigated at all,” regardless of the

subject matter of the investigation. Id. at 1006. The court,

however, noted that a high risk of potential prejudice counseled

against cross-examination regarding the specific nature of the

investigation:

Even assuming information about the subject matter of
the investigation was probative of bias, the district
court would properly have excluded cross-examination
pursuant to Rule 403 because “its probative value [wa]s
substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403. As the district court
concluded, the “prejudice to this officer given the
uncertainty of the [allegations] is quite high, the
prejudice to her career and her credibility is quite
high.” Mar. 27, 2006 Ex Parte Tr. at 10. That risk of
prejudice would have substantially outweighed the
minimal probative value of the evidence.

Id. (alterations in original). The court moreover reaffirmed

that “‘the mere filing of a complaint [against a witness] is not
 -24-

probative of truthfulness or untruthfulness.’” Id. at 1005 (D.C.

Cir. 2010) (quoting United States v. Morrison, 98 F.3d 619, 628

(D.C. Cir. 1996) (emphasis in original) (finding no abuse of

discretion where trial court sustained an objection to a cross-

examination question put to a government witness asking if

someone had earlier filed a court complaint against her)). In

Wilson, the D.C. Circuit emphasized that cross-examination

“[w]ithout additional evidence of wrongdoing beyond bald

assertions” and “based on unproven allegations” is impermissible.

Wilson, 605 F.3d at 1005. Cf. United States v. Whitmore, 359

F.3d 609, 614 (D.C. Cir. 2004) (concluding that a defendant

should have been allowed to cross-examine a police officer

witness about a “D.C. Superior Court judge’s finding that [the

officer] had lied” in an unrelated criminal trial).

The Seventh and Eleventh Circuits have both considered

specifically the propriety of cross-examination regarding

complaints against police officers. See United States v. Holt,

486 F.3d 997, 1000-02 (7th Cir. 2007); United States v. Taylor,

417 F.3d 1176, 1178-81 (11th Cir. 2005). In Holt, the defendant

sought to cross-examine two police officer witnesses, one of whom

had received a suspension for conduct occurring several years

before the defendant’s arrest and both of whom “[b]ased upon an

unrelated complaint . . . were . . . reprimanded for neglect of

duty.” Holt, 486 F.3d at 1001. The Seventh Circuit affirmed the

trial court’s decision to allow the defense to ask the officer
 -25-

witness who had been suspended whether “he had ever engaged in a

particular course of conduct,” id. at 1001,17 but to prohibit

asking about the discipline the officer had received, id. at

1002. With regard to the complaints, the Seventh Circuit

reasoned that the key factor determining whether cross-

examination regarding complaints was proper is its bearing on

truthfulness. The circuit court accordingly affirmed the trial

court’s decision to exclude questioning regarding the complaints

because “th[e] evidence [of police complaints] was not even

relevant . . . because it did not bear on the[] [officers’]

characters for truthfulness”). Id. In Taylor, the Eleventh

Circuit addressed a case in which the defendant wanted to cross-

examine a government witness regarding prior citizens’ complaints

against him for, among other things, allegedly planting evidence,

even though the allegation of evidence fabrication had been

determined to be unfounded by the internal affairs investigation.

A separate complaint alleging brutality indicated that the

officer was “under investigation.” The defendant argued that the

complaints were relevant to prove the officer was biased, had a

tendency for being untruthful, and thus may have planted drugs on

the defendant. Taylor, 417 F.3d at 1178-79.18 The Eleventh

17
The facts of the case do not make clear what precise
conduct led to the suspension.
18
McCallum does not accurately characterize the facts of
Taylor, contending that “[i]n Taylor, the defendant sought only
to admit or refer to the complaints, rather than cross-examine
 -26-

Circuit, however, upheld the district court’s ruling to preclude

cross-examination because the complaints were unproven and there

was no evidence the officer had been disciplined for the conduct.

Further, the court noted that the defendant “failed to proffer

the testimony of any witness who might testify that [the officer]

had engaged in any of the alleged acts but instead chose to

simply refer to Internal Affairs documents to support his theory

that [the officer] had a history of planting evidence on

arrestees and had a character for untruthfulness and racial

bias.” Id. at 1180 (emphasis omitted). Both Taylor and Holt

support the proposition that cross-examination about complaints

or the conduct underlying them is improper unless there is some

basis for inferring the soundness of the allegations against the

officers (as, for example, in Holt where the alleged misconduct

had led to the officer’s suspension).

With regard to the three complaints disclosed to the

defense, the circumstances thus far do not support a reasonable

belief that the allegations in the complaints are true. Two of

the three complainants subsequently pled guilty to possessing the

substances that they had previously alleged had been planted.

regarding the substance of the complaints.” (Def.’s Opp’n to
Govt.’s Mot. in Limine to Preclude Evidence Concerning Police
Complaints at 4 n.1.) The facts are clear, however, that the
defendant “advised the district court that he intended to cross-
examine [the police officer witness] regarding prior citizens’
complaints against him.” Taylor, 417 F.3d at 1178 (emphasis
added).
 -27-

Although the third complainant, who alleged that marijuana had

been planted on him, was not prosecuted, McCallum has not

proffered evidence tending to establish the truth of the

allegations made by that complainant or the others aside from the

contention that each of the complainants “maintains that the

charges against him were false.” (Def.’s Opp’n to Govt.’s Mot.

in Limine to Preclude Evidence Concerning Police Complaints at

2.) Without more, these are the type of “unproven allegations,”

Wilson, 605 F.3d at 1005, that are unsuited as evidence probative

of the character for truthfulness of the witnesses.19

With regard to the seven open complaints against Matos, as

well, the current record reflects “[no] additional evidence of

wrongdoing beyond bald assertions.” Wilson, 605 F.3d at 1005.

Unlike in Wilson, where the officer was actually under

investigation and indeed suspended for misconduct, and the

district judge was found properly to have allowed the defendant

to cross-examine the officer regarding her knowledge of the

investigation in order to demonstrate a motive to curry favor,

the current record does not reflect that Matos has been subject

19
With regard to McCallum’s representation that there is a
“fourth individual who submits that Officer Matos arrested him
and falsely accused him of possessing drugs” (Def.’s Opp’n to
Govt.’s Mot. in Limine to Preclude Evidence Concerning Police
Complaints at 2), McCallum has not proffered sufficient facts
from which to determine the propriety of conducting cross-
examination of Matos about this individual.
 -28-

to disciplinary action.20 Arguably, where complaints have yet to

be found proven or not proven, their open status might be

construed as reflecting an investigation of the officer. While

the OPC investigates the circumstances of filed complaints to

determine whether they are founded, the probative value of

inquiring into Matos’s potential bias to testify favorably to the

prosecution in order to avoid discipline is slight where, as

here, the facts alleged in the open complaints do not demonstrate

any credible threat of such discipline.21 For these reasons,

McCallum may not elicit on cross-examination the fact that any of

these complaints has been filed with the OPC against Matos or

Chapa or what a complaint alleged. The government’s motions to

preclude evidence of police complaints will be granted subject to

the government’s update about the status of the seven open

complaints.

IV. ADMISSIBILITY OF OPINION AND REPUTATION EVIDENCE

In order to offer reputation evidence under Federal Rule of

Evidence 608(a), “a party must establish that the character

witness is qualified by having an ‘acquaintance with [the

witness],’ his ‘community,’ and ‘the circles in which he has

20
However, the government will be directed to update the
status of the seven open complaints.
21
Wilson suggests that there may also be some risk that such
questioning could prejudice Matos and that such prejudice could
be undue given the uncertainty of the allegations. Wilson, 605
F.3d at 1006. Given the nature of the open complaints, though,
that risk is not determinative here.
 -29-

moved, as to speak with authority of the terms in which generally

[the witness] is regarded.’” Whitmore, 359 F.3d at 616 (quoting

Michelson v. United States, 335 U.S. 469, 478 (1948)).

Reputation testimony, however, need not be derived from the

witness’s residential community and a character witness need not

physically reside in that community. Id. at 617 n.3. “[T]he

foundational requirement for opinion evidence regarding a

witness’s character for truthfulness is less stringent than that

for reputation evidence.” Id. at 617 (emphasis in original). A

witness’s opinion testimony must be based on underlying facts

that demonstrate that the opinion is rationally based on the

first-hand perception of the witness and would be helpful to the

jury in evaluating the subject’s truthfulness. Id. at 618.

The government asks the court to preclude character witness

testimony unless and until McCallum proffers sufficient facts or

evidence that establish that any potential character witness has

a sufficient knowledge about an officer’s reputation in the

community for truthfulness or untruthfulness, or proffers a

sufficient basis to offer an opinion about an officer’s

reputation for truthfulness. McCallum has acknowledged his

obligation to present a foundation for such testimony. In the

absence of any specific proffer to call character witnesses,

ruling on the government’s motion will be deferred. Upon a

proffer, the relevant factors to assess will include the
 -30-

proximity in time of the witness’s contact, the extent of the

witness’s contacts with the community, the extent of the

witness’s interaction with the officer whose character is being

impeached, and the factual support for the testimony offered.

Id. at 616-18.

CONCLUSION AND ORDER

Double jeopardy does not bar retrial in this case, and the

denial of McCallum’s motion to suppress is reaffirmed. Subject

to the government’s update about the status of the seven open

complaints, cross-examination eliciting the fact that OPC

complaints were filed or their contents will not be permitted at

retrial. Accordingly, it is hereby

ORDERED that the defendant’s motion [58] to dismiss the

indictment be, and hereby is, DENIED. It is further

ORDERED that the government’s motions [59, 63], insofar as

they seek to preclude cross-examination eliciting the fact that

the OPC complaints were filed or their contents, be, and hereby

are, GRANTED subject to the government’s notice updating the

status of the seven open complaints against Matos. The

government is directed to file that notice by September 4, 2012.

It is further

ORDERED that a ruling on the government’s motion [64] to

preclude opinion and reputation evidence be, and hereby is,

DEFERRED until the retrial. It is further
 -31-

ORDERED that the parties appear for a scheduling conference

on September 10, 2012 at 10:15 a.m. in order to set a date for

the retrial.

SIGNED this 13th day of August, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge