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09/15/92 ALBERT D. BARNES v. UNITED STATES

September 15, 1992

ALBERT D. BARNES, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert S. Tignor, Trial Judge)

Before Rogers, Chief Judge, and Terry and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge:

Primarily on the basis of testimony by an undercover police officer, a jury found appellant guilty of unlawful distribution of cocaine (D.C. Code § 33-541 (a)(1) (1980)). On appeal he contends that the trial Judge erred in refusing to allow him to question the officer about the fact that, on this occasion and others, he earned overtime pay for testifying in court. Appellant further contends that the evidence that he distributed a usable amount of narcotics was insufficient as a matter of law. We reject both contentions and affirm.

I.

Bruce Faison, a member of the Narcotics Task Force of the Metropolitan Police, was operating undercover with his partner Officer Bush when they approached appellant in the Potomac Gardens area of Southeast Washington, D.C., at around 5:00 p.m. on August 31, 1990. Faison's attention was drawn to appellant because the latter was standing near Building 714 in Potomac Gardens exclaiming "shake, shake, got that shake," which Faison understood to be a street name for a powder form of cocaine. Faison asked appellant, "Who got that shake?", and appellant replied, "Come on, shorty, I will take you." The two men walked toward the building where a third man, Willis Baum, joined them. Appellant told Baum what Faison wanted, and Baum asked, "How many?", to which Faison replied, "Two dimes," meaning two ten-dollar packets of white powder. As appellant stood beside the men, Baum gave Faison two plastic bags containing white powder from a bundle secured around his finger by a rubber band. Faison in turn gave Baum twenty dollars in pre-recorded police department money.

After the sale, Faison and Officer Bush, who had remained in a nearby doorway during the transaction, returned to their unmarked police vehicle, where Faison radioed descriptions of appellant and Baum to a waiting arrest team. He described appellant as a black male, tall, wearing a black baseball-style cap, a green short-sleeve shirt, blue jeans, and black tennis shoes. *fn1 When appellant and Baum were stopped approximately four minutes later, Faison drove by and positively identified both men as the sellers. Identifying appellant in court as well, Faison was "very sure" of his recollection of the events, remembering the incident particularly because appellant had been advertising "shake" aloud. *fn2 A search of Baum on the scene yielded the twenty dollars in pre-recorded funds used to buy the cocaine.

A forensic chemist from the Drug Enforcement Administration testified that the two plastic bags contained a total of 180 milligrams of powder, of which seventeen percent, or 30 milligrams, was cocaine. Detective Joseph Brenner testified that this was a usable amount of cocaine because it could be ingested into the body in the way powder cocaine normally is used, i.e., by snorting or injection.

The day before appellant's trial began, co-defendant Baum pleaded guilty to the charge of distributing cocaine on August 31, 1990. He took the stand on behalf of appellant and explained (in limited testimony) that he had had no arrangement with appellant to sell cocaine on the day in question, he had never met appellant before they were arrested, and appellant had come no closer to him than 40 to 50 feet before the arrest. *fn3

II.

Appellant contends that the trial Judge deprived him of his Sixth Amendment right to establish bias on the part of Officer Faison by precluding cross-examination about whether the officer received overtime pay for his testimony in court. When appellant's counsel asked Faison, "Are you on overtime now?", the government objected on grounds of relevancy, and a lengthy Discussion ensued out of the presence of the jury. Ultimately the trial Judge sustained the objection on the ground that the proposed questioning lacked probative value and could only distract and confuse the jury. We uphold the trial court's ruling.

Appellant's claim of bias was anything but straightforward. As he concedes on appeal, the financial incentive he sought to establish bore only indirectly on Officer Faison's veracity at trial, for if -- as defense counsel proffered -- the officer was receiving time and a half pay for his appearance in court, he would earn that pay for all overtime work whether it involved testifying in court or not. Moreover, he would receive it whether or not his courtroom testimony incriminated appellant. What counsel sought to establish was that there was a self-interested, indeed a corrupt, link between the fact of appellant's arrest and Faison's testimony. He maintained that Faison was motivated from the beginning to arrest appellant and other persons who were either "marginally" involved in drug sales or not involved at all, in order to secure for himself time in court as a witness and overtime pay in consequence. Counsel proffered (and expressed confidence he could elicit from the government's own police expert in the case) that police officers, particularly those from the Narcotics Task Force such as Faison, could earn "thousands of dollars a year" in overtime from their courtroom testimony. And this interest, counsel alleged, was linked directly to the potential innocence of defendants such as appellant, because among all persons arrested on drug charges, those most likely to put the government to its proof at trial were defendants believing in their innocence, whereas factually guilty defendants were more likely to enter guilty pleas to lesser drug charges before trial in order to avoid mandatory minimum sentencing.

This theory of bias, as the trial Judge recognized, rested on a series of assumptions unsupported by any evidentiary proffer. The ultimate assumption, of course, was that an officer like Faison would jeopardize his career (and risk civil if not criminal liability) by falsely arresting innocent persons for the future gain of overtime pay. The underlying factual assumption was that most "guilty" drug defendants would plea bargain (hence offer little promise of remuneration for Faison) while defendants innocent in fact would commonly insist on their right to trial. *fn4 Appellant proffered no evidence at all about the frequency of guilty pleas in drug cases, nor about the reasons (assuming these could be established empirically) why individual defendants go to trial -- i.e., because they truly believe themselves innocent; or, innocence aside, because they are confident they can beat the government's case, perhaps by a motion to suppress; or simply because they have not been offered a plea to a reduced charge because of recidivism or other reasons subsumed under prosecutorial discretion. In particular, as the trial Judge noted and defense counsel agreed, the government commonly "wired" plea offers in the case of jointly arrested defendants such as appellant and Baum, so much so that -- in this case -- until the very day before trial when Baum pled guilty to the charged offense, Officer Faison's attendance at trial was not contingent on appellant's decision to stand trial. Yet the theory of bias was that the officer had to cast his net broadly, arresting the guilty and innocent alike, to insure that at least one among co-defendants would proceed to trial.

Aside from the lack of an evidentiary proffer, the flaw the trial Judge perceived in appellant's theory was that between the putative motive to arrest innocent or "marginal" defendants *fn5 to earn extra courtroom pay and its ultimate realization lay numerous steps in the criminal Justice process over which the officer had little or no control, and which in the aggregate made the imputed motive imaginary. Assuming, for example, that the officer could predict how prosecutors would exercise their charging and plea discretion in individual cases, there remained the grand jury as an obstacle before a putatively corrupt officer could have any confidence that innocently arrested defendants would be forced to stand trial. *fn6 Without detailed explanation of how these factors operate in the process, a jury could not intelligently begin to evaluate the theory of bias. And even then, as the trial Judge ...


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