U.S. v. Butler, s. 78-1458

• Decision Date: 29 October 1980
• Docket Number: Nos. 78-1458,79-1014,s. 78-1458
• Citation: 636 F.2d 727,205 U.S. App. D.C. 19
• Parties: UNITED STATES of America v. Robert J. BUTLER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 727

636 F.2d 727

205 U.S.App.D.C. 19

UNITED STATES of America v. Robert J. BUTLER, Appellant.

Nos. 78-1458, 79-1014.

United States Court of Appeals District of Columbia Circuit.

Submitted June 6, 1979.

Decided Oct. 29, 1980.

Appeals from the United States District Court for the District of Columbia. (D.C. Criminal No. 77-00743-01).

Larry Martin Corcoran, Washington, D. C. (appointed by this court) was on brief, for appellant.

Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, Michael W. Farrell, James F. Rutherford and William E. Bucknam, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and BARRINGTON D. PARKER, ^* U.S. District Judge for the District of Columbia.

Opinion for the court filed by District Judge BARRINGTON D. PARKER.

Dissenting opinion filed by Senior Circuit Judge BAZELON.

BARRINGTON D. PARKER, District Judge:

Appellant Robert J. Butler was charged in a multicount indictment with possession of phenmetrazine with intent to distribute on four separate dates: June 30, August 16, August 19 and October 31, 1977. The jury returned a verdict of guilty on the June and August dates, the first three counts. It was unable to reach a verdict on the fourth count charging distribution on October 31 and after a partial verdict was accepted, the government dismissed that count.

Butler defended on the ground of misidentification and alibi. The government's case depended chiefly upon the testimony of Officer Vincent Scott, Metropolitan Police Department (MPD), who, while working undercover, allegedly purchased the drugs from appellant on the four occasions listed above. Butler contends the trial court committed prejudicial error by failing to enter a judgment of acquittal. The principal issue presented is whether the evidence was legally sufficient to submit the case to the jury and to sustain Butler's Officer Scott testified that, while working undercover in the 14th Street area, he had observed Butler on several occasions engaged in what appeared to be drug transactions. Then, on the dates of the four-count indictment, he was approached by the appellant and, following a conversation with him, appellant sold Scott a quantity of phenmetrazine tablets. As to each transaction, Scott was in close proximity for periods of at least two to three minutes. Following each sale, Scott prepared a "buy" report detailing the transaction and including a description of the seller. Those descriptions, referring to Butler as John Doe # 8, differed in several respects from appellant's appearance. Most notably, they profile a person two inches taller, forty-five to sixty pounds heavier, and six years older. Appellant's counsel cross-examined Scott extensively about the divergent descriptions. Appellant also presented four witnesses who testified as to his whereabouts on the date of the final sale, October 31, 1977, Halloween. The government dismissed the October 31 count when the jury returned a partial verdict on the first three counts. Appellant argued at trial that by showing he was not present at one sale he had demonstrated he was not present at any of the alleged sales. Appellant was unable to produce evidence of his whereabouts on the dates of the first three sales.

                conviction.  **  We find that it was and we affirm
                

Appellant claims the evidence was "insufficient to sustain a conviction" and therefore the trial judge's failure to enter a judgment of acquittal constitutes error. He bases this appeal on the unreliability of uncorroborated identification testimony, see United States v. Greer, 538 F.2d 437, 442 (D.C.Cir.1976), and his alibi proof on the fourth count.

This jurisdiction follows the "one-witness" rule allowing a case to be proven, with limited exceptions not relevant in this case, through the uncorroborated testimony of one eyewitness. United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). In deciding whether a one-witness case should go to the jury it is incumbent upon the trial judge to consider a number of factors relating to the period of identification and to determine "whether the totality of circumstances 'give(s) rise to a very substantial likelihood of irreparable misidentification.' " United States v. Levi, 405 F.2d 380, 383 (4th Cir. 1968), quoted with approval, Telfaire, 469 F.2d at 555 n.5. In particular, the judge should consider the opportunity for identification, the lighting conditions, the duration of encounters, the strength of the identification and the judges's appraisal of the witness' capacity to observe. Telfaire, 469 F.2d at 555-59. Further, after making a determination to submit the case to jury, the trial judge should instruct the jury on how to properly evaluate identification testimony. See Model Special Instruction on Identification, Telfaire, 469 F.2d at 558. The trial court instructed the jury appropriately in this instance, giving a version of the "Telfaire instruction" tailored to fit the facts of this case. Tr. at 198-200.

This Court is cognizant of the discrepancies between Scott's identification and reality. However, "(i)t is only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the judge may properly take the case from the jury." United States v. Davis, 562 F.2d 681, 683 (D.C.Cir.1977). And in evaluating this determination Proof by one-witness identification should be a jury question when, as in this case, a police officer, trained and experienced in identification has numerous occasions to observe a defendant under satisfactory conditions. Scott testified that he recognized the importance of accurate descriptions and that in his four years with the MPD, one year of which he spent undercover investigating illegal drug trafficking, he had a "fair amount of practice" describing those with whom he came into contact. Appellant had ample opportunity to impeach Scott's credibility during cross-examination. The issue of credibility was one for the jury to determine, not this Court. In addition, it was for the jury to decide whether or not Butler's alibi for the October 31 sale should serve as proof and offset the government's testimony as to whether Butler was indeed involved in the three earlier sales.

"this court must view the evidence in the light most favorable to the government's position." Crawford v. United States, 375 F.2d 332, 334 (D.C.Cir.1967).

Taking the evidence in the light most favorable to the government this Court finds the evidence legally sufficient for submission of the case to the jury. Accordingly, the judgment is affirmed.

BAZELON, Senior Circuit Judge, dissenting:

From June through October, 1977, Officer Vincent Scott, an undercover agent with the Metropolitan Police Department, conducted an investigation of drug trafficking on 14th Street in Washington, D. C. During those months, he made over 100 "buys" from thirty-seven different suspects or, in his words from thirty-seven different "John Doe's." To protect his "cover" for the investigation, he made no arrests until after the investigation was completed.

On November 29, 1977, while driving through the 14th Street area with a superior officer in the hope of making an arrest, Officer Scott spotted Robert Butler and announced: "There is John Doe Number 8." According to Officer Scott, "Number 8" had sold him narcotics on four occasions June 30, August 16, August 19, and October 31. Based solely upon Officer Scott's statement that the man he saw on November 20 was "Number 8," Butler was arrested and convicted. This, despite the fact that Robert Butler bore little resemblance to "Number 8," as "Number 8" was described by Officer Scott in notes written just after each purchase.

This case poses a fundamental issue not addressed by the majority. In a striking way, it reveals the danger of injustice inherent in the so-called "one eyewitness rule," the rule that allows convictions based upon an uncorroborated identification by a single eyewitness. ¹ To extend that "rule" to cases like the one at hand is to expand its scope well beyond what is justified by its rationale. Where the police can obtain corroborating evidence with reasonable effort, they should be required to do so. Here, it appears from the record that the police could have obtained verification for Officer Scott's testimony with little additional effort. ² However, to afford the government an opportunity to explain why it did not expend such effort, I would remand the record for a hearing and findings of fact on that issue. Accordingly, I dissent.

I. THE IDENTIFICATION IN THIS CASE

Over a five-month period, Officer Scott saw a man he called "John Doe Number 8" almost a dozen times. ³ On four occasions, Scott bought narcotics from "Number 8." After each purchase, he filled out a "Buy Report," describing the person who sold him Furthermore, weight was not the only area of discrepancy between Officer Scott's descriptions of "Number 8" and the facts about Robert Butler. Admittedly, the other discrepancies are minor, or develop only if the testimony of defense witnesses is credited. ¹² But their existence certainly does nothing to lend authority to the officer's identification. And, when they are seen in combination, even plausible discrepancies can reveal a disturbingly consistent penchant for inaccuracy. Such is the case here.

                the drugs.  4  Two times, "Number 8" was wearing a T-shirt.  5  On those days, Scott reported "Number 8's" weight at 185 and 189 pounds.  6  On the other two occasions, Scott recorded "Number 8's" weight at 175 and 185 pounds.  7  Yet, Robert Butler weighs only 130 pounds.  8  This is an extraordinary discrepancy.  When asked to explain it, Officer Scott testified that, when arrested, Butler appeared heavier than 130 pounds because he was wearing two pairs of pants.  9  Of course, this does not explain why Scott

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