U.S. v. Spencer, s. 93-3052

• Decision Date: 17 June 1994
• Docket Number: Nos. 93-3052,93-3074,s. 93-3052
• Citation: 306 U.S.App. D.C. 399,25 F.3d 1105
• Parties: , 63 USLW 2062, 40 Fed. R. Evid. Serv. 1292 UNITED STATES of America, Appellee/Cross-Appellant, v. Cordell SPENCER, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1105

25 F.3d 1105

306 U.S.App.D.C. 399, 63 USLW 2062,

40 Fed. R. Evid. Serv. 1292

UNITED STATES of America, Appellee/Cross-Appellant, v. Cordell SPENCER, Appellant/Cross-Appellee.

Nos. 93-3052, 93-3074.

United States Court of Appeals,

District of Columbia Circuit.

Argued April 11, 1994.

Decided June 17, 1994.

Appeal from the United States District Court for the District of Columbia (92cr00273-02 & 92cr00273).

David Kagan-Kans, Washington, DC, appointed by the court, argued the cause, and filed the briefs, for appellant/cross-appellee.

Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, DC, argued the cause, for appellee/cross-appellant. With him on the briefs, were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher and Corbin A. Weiss, Asst. U.S. Attys., Washington, DC.

Before: MIKVA, Chief Judge, BUCKLEY and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The most serious issue presented in this case is whether, as the district court ruled, the career offender provisions of the Sentencing Guidelines are unconstitutional as applied to the defendant, Cordell Spencer. Spencer was convicted, after a jury trial, of possession with intent to distribute cocaine base (21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B)(iii)), and possession with intent to distribute a detectable amount of heroin (21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C)). Refusing to follow the Sentencing Guidelines, which placed Spencer's sentence in the 30-year-to-life-imprisonment range, the court sentenced Spencer to the mandatory minimum of 10 years' imprisonment.

I

After receiving complaints about drug activity in an apartment at 640 Park Road in northwest Washington, D.C., a police officer patrolling the area investigated. He saw Spencer inside the apartment talking with another individual, described as an "unidentified white male." When Spencer spotted the officer, he closed the door. The officer questioned the "white male" about his presence in the apartment, but the record does not reveal the man's response. Within a few days, the officer obtained a search warrant. He went to the apartment, saw Spencer and Ronald Chapman there, and one hour later returned with two other officers to execute the warrant.

As the officers drove through a nearby alley, they noticed Spencer removing his left hand from the apartment door and carrying a set of keys in his right hand. Confronted by the officers, Spencer first said the keys were for his car and an apartment he rented elsewhere; he then changed his story, saying he found the keys in the hallway. According to Spencer, he had just been "passing through" the building. One of the keys fit the lock on the apartment subject to the warrant.

Inside the apartment the officers found Chapman, an inoperable .25 caliber pistol, three rounds of ammunition, 51 ziplock bags containing 6.69 grams of cocaine base, 11 bags containing .87 grams of heroin, many empty ziplock bags, a pager, a box of baking soda, and a strainer and spoon covered with cocaine and heroin residue. The apartment was filthy, and "look[ed] like nobody had lived in there ... maybe two or three months." The police recovered no personal possessions linking Spencer to the apartment. The lessee of the apartment, Sincera Boone, apparently lived elsewhere. At the time of his arrest, Spencer was carrying a pager and $111 in cash.

Charles Anderson, a friend of Spencer and a witness for the defense, testified that he was on the porch of a nearby home (646 Park Road) playing with two puppies for about two hours before the police arrived. He asserted that during those two hours, Spencer was sitting by a tree, where he remained until the officers grabbed him and threw him against a car. Anderson heard Spencer threaten to sue the police. He saw the officers take several keys from Spencer.

Harveeta Tucker, another defense witness who knew Spencer, testified that when the police arrived, she was in the front yard of her home at 648 Park Road. She swore that Spencer had been near the tree for an hour and that the police arrested him there after bringing Chapman out of the apartment. She too heard Spencer threaten to sue the police. Although Anderson testified to seeing Tucker, Tucker did not see Anderson and did not remember any puppies. She described a wooden wall with a small opening separating the porches at 646 and 648 Park Road. On cross-examination Tucker admitted that there was a pending armed robbery charge against her. She denied harassing police officers making arrests in her neighborhood, a statement contradicted in the government's rebuttal by the investigating officer, who recounted Tucker's throwing bottles at police officers making other drug arrests in the neighborhood.

II

Spencer's list of alleged trial errors begins with the prosecutor's opening statement. The prosecutor described the pre-search events to the jury, reciting Spencer's status as a "target" of the search warrant; the officers' expectations that they would find him at the apartment; and the investigating officer's "prior encounters" with him. These remarks did not, as Spencer believes, suggest that the government had evidence of Spencer's drug dealing beyond the evidence to be introduced. Compare United States v. Foster, 982 F.2d 551, 555 (D.C.Cir.1993); United States v. Perholtz, 842 F.2d 343, 360 (D.C.Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). What the prosecutor indicated the government would prove, the government did prove. The investigating officer testified that he had observed Spencer in the apartment twice before searching it. He gave Spencer's description to the other officers on the day of the search. Of course he expected to (and did) find him close to the apartment. In these respects, Spencer was indeed a target of the investigation, which included the search.

The next item on Spencer's list is the district court's allowing the prosecutor to impeach defense witness Tucker with the pending armed robbery charge against her. We hold that the court acted within the limits of its discretion. Cases decided before adoption of the Federal Rules of Evidence generally forbid attacks on a witness' credibility merely on the basis that the witness had been arrested or charged. An indictment or an arrest is not, in itself, proof of the underlying criminal act. "Only a conviction," the Supreme Court wrote in Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948), "therefore, may be inquired about to undermine the trustworthiness of a witness." Rule 609, FED.R.EVID., as amended in response to Green v. Bock Laundry Machine Co., 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989), now governs the impeachment of defense and prosecution witnesses with prior convictions. This "general attack on the credibility of the witness," Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), however, is not the only permissible method. A "more particular" attack occurs when the witness is impeached for bias. Id. Although not specifically mentioned in the Rules, proof of bias--that is, "the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party"--is "almost always relevant." United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). It is common for the defense to cross examine prosecution witnesses about charges pending against them; that they might be influenced by "self-interest", by their desire to please the government, is fairly apparent. See JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE Sec. 39, at 133 n. 22 (4th ed. 1992). This court also permitted, before and after adoption of the Rules, the prosecution to impeach defense witnesses for bias by showing charges against them, subject always to the requirement, now embodied in Rule 403, that the probative value of this evidence is not substantially outweighed by danger of unfair prejudice. See United States v. Maynard, 476 F.2d 1170, 1174 (D.C.Cir.1973); United States v. Robinson, 530 F.2d 1076, 1080 (D.C.Cir.1976); cf. United States v. Anderson, 881 F.2d 1128, 1138 (D.C.Cir.1989); see also United States v. Senak, 527 F.2d 129, 147 (7th Cir.1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976). Here the district court concluded that Tucker's bias was a "legitimate" subject of inquiry. We see no basis for disturbing the ruling. The court carefully reviewed our decisions in Maynard and Robinson and analyzed the government's proffer in light of Tucker's history of harassing the police. It may be that, in general, a pending criminal charge against a defense witness would be as likely to move the witness to color his testimony for the prosecution as against it. Cf. Davis v. Alaska, 415 U.S. at 311, 94 S.Ct. at 1107. In this case, however, other evidence showed Tucker's antipathy toward law enforcement and the court properly determined that the jury could hear about a possible source of her hostility.

There is nothing to Spencer's additional claims that the court improperly questioned Tucker and gave an erroneous jury instruction. Spencer raised neither objection at trial and he cannot satisfy the "plain error" standard. FED.R.CRIM.P. 52(b). Trial judges may question witnesses. FED.R.EVID. 614(b). While it is often said the judge may not assume the role of an advocate, e.g., United States v. Norris, 873 F.2d 1519, 1526 (D.C.Cir.), cert. denied, 493 U.S. 835, 110 S.Ct. 113, 107 L.Ed.2d 75 (1989), the judge in this case did no such thing. Most of the court's questions to Tucker concerned details, such as how long Spencer had been under the tree, the species of the tree and whether Spencer stood or sat. The balance of the court's questions sought to clarify why Tucker did not remember seeing Charles Anderson, who said he was on the porch next door for two...