United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 13, 1999
No. 93-3059
United States of America,
Appellee
v.
Horace L. Davis,
Appellant
On Appellant's Petition for Rehearing
A.J. Kramer, Federal Public Defender, and Neil H. Jaffe,
Assistant Federal Public Defender, were on the supplemental
brief of appellant.
Wilma A. Lewis, U.S. Attorney, John R. Fisher and Eliza-
beth Trosman, Assistant U.S. Attorneys, were on the supple-
mental brief of appellee.
Before: Randolph, Rogers, and Tatel, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: In United States v. Crowder, 141 F.3d 1202
(D.C. Cir. 1998) (Crowder II), the court, sitting en banc,
affirmed Davis's conviction.1 Davis now seeks rehearing on
three grounds. The en banc court referred Davis's petition
to the panel. For the following reasons, we deny the petition.
Davis first contends that Officer Farmer's testimony at
trial and his testimony at the suppression hearing were in
conflict and that the district court therefore should have
permitted Davis to introduce the suppression hearing tran-
script into evidence.
At the suppression hearing, when asked where he filled out
the buy report, Farmer stated that he filled it out at the
police station:
Defense counsel: "That's something [the buy report] you
filled out back at the station, right?"
Farmer: "Yes."
Defense counsel never asked Farmer whether he filled out
every section of the buy report at the station. Later at trial,
Farmer gave more specific answers, testifying that he filled
out most of the report at the station but filled out the clothing
description at the scene before the police arrested Davis.
Also at trial, Farmer explained on redirect that he filled out
the clothing description on the scene so that "if the arrest
team asked me again what was the clothing description, I
have it written down so I can remember it better and I
wouldn't make a mistake in the clothing description."
Davis stresses Farmer's failure to state at the suppression
hearing where and when he filled out the clothing description
portion of the buy report. There are three answers to this
line of argument. First, it may not have been entirely clear
to the district court that Farmer's response at the suppres-
sion hearing--in light of the broad question defense counsel
asked him--gave rise to a testimonial inconsistency. See
United States v. Hale, 422 U.S. 171, 176 (1975); United
__________
1 Because Crowder II recounts the facts of this case, we do not
repeat them here.
States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995). Second, in
view of the facts that defense counsel read Farmer's suppres-
sion hearing testimony to him during cross-examination, and
that Farmer did not deny giving that testimony, the district
court may have believed that admitting the transcript would
merely have been cumulative. See Rule 403, Fed. R. Evid.
Third, even assuming that Farmer's suppression hearing
response and trial testimony conflicted and that the district
court abused its discretion by not permitting Davis to intro-
duce the transcript into evidence, any such error was harm-
less. As we have said, during the cross-examination of
Farmer the jury heard word-for-word what he had said at the
suppression hearing. See Appellant's Appendix 192. See
United States v. Roger, 465 F.2d 996, 997 (5th Cir. 1972).
Given the freedom defense counsel enjoyed to use the sup-
pression hearing transcript, the district court's refusal to
admit the transcript into evidence in no way prejudiced Davis
or impaired his defense. See United States v. Bogle, 114 F.3d
1271, 1275-76 (D.C. Cir. 1997); Williams v. United States,
403 F.2d 176, 179 (D.C. Cir. 1968).
As to the second ground for rehearing, the district court
also did not abuse its discretion in admitting Officer Farmer's
redacted "buy" report. Even if the buy report was inadmissi-
ble as a public record under Fed. R. Evid. 803(8)(B), it was
admissible under Fed. R. Evid. 801(d)(1)(C) as a statement of
identification made after perceiving Davis. The facts here
are similar to those in United States v. Coleman, 631 F.2d
908, 914 (D.C. Cir. 1980), and United States v. Clarke, 24 F.3d
257, 267 (D.C. Cir. 1994), which affirmed the admission of
similar police notes and tapes that contained witness identifi-
cations of the defendants under this rule. (Even though the
district court did not admit the buy report under Fed. R.
Evid. 801(d)(1)(C), this court can affirm on that ground. See
United States v. Jacoby, 955 F.2d 1527, 1535 (11th Cir. 1992);
United States v. Walsh, 928 F.2d 7, 10 n.10 (1st Cir. 1991).)
In challenging the buy report's admissibility, Davis relies
on United States v. Oates, 560 F.2d 45, 83-84 (2d Cir. 1977),
which holds that Fed. R. Evid. 803(8)(B) bars the admission of
records like the buy report. Oates is of questionable prece-
dential value--other circuits disagree with its sweeping lan-
guage, see United States v. Hayes, 861 F.2d 1225, 1229-30
(10th Cir. 1988); United States v. Picciandra, 788 F.2d 39, 44
(1st Cir. 1986); United States v. Metzger, 778 F.2d 1195,
1201-02 (6th Cir. 1985)--and, in any event, the decision is
inapposite. The court's holding in Oates derived from an
express concern about preserving the defendant's right to
confront his accusers. See Oates, 560 F.2d at 83-84; Hayes,
861 F.2d at 1230. That is not an issue here. Farmer
testified at trial and was subject to cross-examination. An-
other case relied on by Davis, United States v. Smith, 521
F.2d 957, 965-66 n.20 (D.C. Cir. 1975), is also otiose. Like
Oates, Smith concerned Confrontation Clause issues--which,
again, are not at issue here because defense counsel cross-
examined Farmer. See Coleman, 631 F.2d at 914 ("[t]he
concern in Smith that the government might submit its entire
case by means of unchallenged documentary evidence is not
present here").
Even if the district court erred in admitting the redacted
buy report and permitting the government to refer to it
during closing, any such error was harmless and did not
prejudice Davis. See Clarke, 24 F.3d at 267. The evidence
against Davis was strong. Officer Farmer testified that he
was "without a doubt" that Davis was the man from whom he
bought a rock of crack cocaine on February 27, 1991. Other
officers positively identified Davis as one of the men arrested
one to two minutes after Officer Farmer's "lookout." And
Officer Vines testified to Farmer's identification of Davis at
the scene. See United States v. Dyke, 901 F.2d 285, 287 (2d
Cir. 1990). Because the clothing description in the buy
report simply mirrors the direct identification of Davis, any
erroneous admission of such cumulative evidence is therefore
harmless. See United States v. Lampkin, 159 F.3d 607, 614-
15 (D.C. Cir. 1998); Clarke, 24 F.3d at 267.
The third issue Davis raises relates to the district court's
determination to admit evidence of Davis's bad acts. See
Fed. R. Evid. 403. It is clear that the district court took its
responsibility under Rule 403 seriously. The district court
explicitly "weigh[ed]" and analyzed the probative value of
admitting evidence of Davis's prior bad acts. And the district
court took account of and sought to limit any potential
prejudice to Davis by, among other things, excluding mention
of the prior bad acts until the end of the government's case in
chief and barring reference to them in the government's
opening and closing statements.
Whether the district court included in the Rule 403 balanc-
ing Davis's proposed stipulation is not clear. On the one
hand, the district court stated that it would follow United
States v. Hudson, 884 F.2d 1016 (7th Cir. 1989), which
adopted a per se rule making a defendant's proposed stipula-
tion irrelevant to the 403 balancing test in specific intent
cases. On the other hand, the district court assessed the
probative value of admitting the evidence and "weigh[ed]" it,
presumably against any potential prejudicial effect (what else
would be on the other side of the scale?); the district court
mentioned the proposed stipulation during this on-the-record
Rule 403 balancing; and the district court stated that the
proposed stipulation "should not control" the balancing, im-
plying that, in contrast to Hudson, the court found the
stipulation relevant to the 403 determination. Thus the dis-
trict court may have considered on the record the stipulation
during its Rule 403 balancing, but as we have said, this is not
certain.
At all events, if the district court failed to weigh the
proposed stipulation in the balance, a remand would neverthe-
less be unwarranted. The factors germane to the Rule 403
determination are readily apparent and an on-the-record con-
sideration of the proposed stipulation would not have changed
the district court's ruling. See United States v. Graham, 83
F.3d 1466, 1473-74 (D.C. Cir. 1996); United States v. Man-
ner, 887 F.2d 317, 322-23 (D.C. Cir. 1989).
In Old Chief v. United States, the Supreme Court reiterat-
ed that as a general rule, district courts may--indeed
should--permit the government to introduce relevant evi-
dence of bad acts to prove elements of guilt (excluding felony
status) and to establish all the circumstances surrounding the
offense. See 519 U.S. 172, 186-89, 191-92 (1997). Here, the
government sought to use the evidence to prove intent and
knowledge elements. On the other hand, we determined in
Crowder II that Davis's proposed stipulation was "of uncer-
tain and doubtful significance." 141 F.3d at 1208. "It men-
tioned only some hypothetical drug dealer, some 'person.'
Yet the prosecution's evidence of Davis's prior crack cocaine
sales--sales close in time and place to those charged in the
indictment--was not meant to show that someone had intent
and knowledge. The evidence was introduced to prove that
Davis had the intent to distribute the crack and that Davis
knew what he was possessing. Davis's proposed stipulation
could not possibly have substituted for such proof. It did not
even mention him by name." Id. At the end of the Crowder
II opinion, in the discussion of Rule 403, we added the
following: "Here the proposed stipulations were ambiguous,
conditional and tentative. Neither mentioned the defendant
directly. At no point in their trials did either defendant
propose a jury instruction requiring the jury to find the
conceded element of intent.... The judges who presided at
their trials could not possibly have anticipated the model jury
instruction that later developed ... and their failure to do so
was neither 'plain' nor 'error.' " Id. at 1210. This last point
is particularly telling. Davis's proposed stipulation needed to
be backed up by a jury instruction. Without one, with just
the naked and ambiguous stipulation Davis tendered, the
district court's assessment under Rule 403 could not possibly
have been affected. We reverse a district court's decision to
admit evidence under Rule 403 only for a grave abuse of
discretion. See United States v. Neville, 82 F.3d 1101, 1107
(D.C. Cir. 1996). Nothing of the sort occurred here.
The petition for rehearing is denied.
So ordered.