U.S. v. Burch, s. 97-3032

• Decision Date: 09 October 1998
• Docket Number: 97-3157,Nos. 97-3032,s. 97-3032
• Parties: UNITED STATES of America, Appellee, v. Larry D. BURCH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1315

156 F.3d 1315

332 U.S.App.D.C. 287

UNITED STATES of America, Appellee, v. Larry D. BURCH, Appellant.

Nos. 97-3032, 97-3157.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 3, 1998.

Decided Oct. 9, 1998.

Appeals from the United States District Court for the District of Columbia (No. 95cr00225-01).

Gary E. Guy, appointed by the Court, argued the cause and filed the briefs for appellant.

David B. Goodhand, Assistant United States Attorney, argued the cause for appellee, with whom Wilma A. Lewis, United States Attorney, John R. Fisher, Thomas J. Tourish, Jr., M. Evan Corcoran and Carolyn K. Kolben, Assistant United States Attorneys, were on the brief. Ann L. Rosenfield, Assistant United States Attorney, entered an appearance.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

WALD, Circuit Judge:

On December 6, 1995, a jury convicted Larry Burch ("Burch") of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (1994), while acquitting him on a charge of conspiracy to distribute and to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 (1994). While the defendant's direct appeal was pending, he petitioned for a writ of habeas corpus under 28 U.S.C. § 2255 (1996), alleging both ineffective assistance of counsel and prosecutorial misconduct. The district court judge who presided over the defendant's trial denied the petition on November 7, 1997. An order of this court, dated January 27, 1998, consolidated the defendant's direct appeal with his subsequent petition for a certificate of appealability under 28 U.S.C. § 2253 (1996), necessary to appeal the denial of his § 2255 motion.

In this consolidated appeal, the defendant challenges his conviction on the basis of alleged errors made by the district court in (1) holding that the defendant had made a knowing and voluntary waiver of his rights under Rule 11(e)(6) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence, such that statements made during his plea hearing and subsequent debriefing could be offered into evidence by the prosecution; (2) allowing evidence of the defendant's prior conviction for attempted cocaine distribution into evidence under Rule 404(b) of the Federal Rules of Evidence; and (3) denying a motion to suppress the fruits of an August 11, 1995 search by officers of the Metropolitan Police Department on the grounds that its execution at 11:00 p.m. violated federal law. He further asserts that his trial counsel was constitutionally ineffective for failing to seek a judicial hearing to enforce the terms of a plea agreement signed by appellant and the United States Attorney's Office, and for failing to complete the impeachment of a government witness. Finally, he alleges that the prosecutor knowingly sponsored false or misleading testimony by the same government witness, and that this instance of prosecutorial misconduct materially affected the outcome of his trial. ¹ Finding no merit in any of these claims, we affirm the conviction and deny the request for a certificate of appealability.

I. BACKGROUND

In August of 1995, a confidential informant notified the Metropolitan Police Department ("MPD") that crack cocaine was being sold out of a residence at 446 N Street in northwest Washington, D.C. In order to verify the allegation, the MPD arranged for this "special employee" to make a controlled purchase of narcotics from that location. ² When the purchased substance tested positive for cocaine base, MPD Sergeant Gerald G. Neill procured a warrant that authorized a search of the premises "in the daytime/at any time of the day or night." Before executing the warrant at approximately 11:00 p.m., Sergeant Neill and his fellow officers set up and observed a second controlled purchase. After the special employee handed MPD funds over to a figure who then retreated into the house, the police officers announced their presence and proceeded to conduct their search.

Through the open front door, Sergeant Neill observed a woman descending the interior staircase, before halting her downward progress and sprinting back up the stairs. He followed the woman into an upstairs bedroom, where he found and, after a brief altercation, subdued both the woman--Oneida Bailey ("Bailey")--and the defendant. At that time, Sergeant Neill and the two other officers conducted their search of the premises, discovering: plastic bags containing rocks of crack cocaine packaged in an eighth of an ounce quantities commonly referred to as "eight balls," smaller rocks of crack cocaine wrapped in plastic bags, two ziploc bags containing cocaine powder, other plastic bags of various sizes, a razor blade, a scale, and eight hundred and thirty dollars, which included the MPD funds used by the special employee. In total, the MPD recovered 50.58 grams of cocaine base and 1.16 grams of cocaine powder. From the bedroom, the police also seized two photographs of the defendant, as well as several forms of identification containing his name and the 446 N Street address.

Following his arrest, Burch entered into plea negotiations with members of the United States ("U.S.") Attorney's Office, culminating in an October 25, 1995 agreement in which he pled guilty to possession with intent to distribute more than 50 grams of crack cocaine, count two of his four-count indictment. Burch also agreed to assist law enforcement authorities whenever and in whatever form the U.S. Attorney's Office deemed appropriate. In return, the government agreed to request the dismissal of the other three counts of the indictment, to allow the defendant's presentence release into the community to assist in undercover operations, and to inform the U.S. Attorney's Departure Guideline Committee of the nature and extent of the defendant's cooperation. Should the Departure Committee determine that the defendant had rendered substantial assistance to the investigation and prosecution of another individual, it would file a motion pursuant to 18 U.S.C. § 3553(e) (1994) in order to allow the sentencing judge to depart downwards from the federal sentencing guidelines.

Burch, however, did not prove particularly cooperative, despite being informed by the trial judge on several occasions that he faced a mandatory minimum sentence of twenty years if he did not provide some opening for a downward departure by assisting the government. He did outline the history of his involvement in narcotics distribution in a debriefing session with the Drug Enforcement Agency ("DEA"), discussing the identity of his sources as well as the quantities of crack cocaine that he typically purchased from them, but not much more. The defendant's name came up in relation to a homicide in May and June of 1996 and, at the government's request, the court revoked his bond and detained him pending sentencing. When questioned about the homicide, Burch was not forthcoming, and told a story which he subsequently recanted. On July 22, 1996, the Assistant U.S. Attorney supervising the case filed a memorandum with the Departure Committee outlining the limited nature of Burch's cooperation. Eight days later, the defendant's trial counsel filed a motion seeking to withdraw the guilty plea and alleging Burch's innocence of the underlying narcotics offense. In the motion, as well as in an August 1, 1996 letter addressed to the trial judge, Burch disavowed any knowledge of the drugs prior to their discovery by the MPD, and asserted that the cocaine belonged to Bailey. He explained his guilty plea as a product of threats by Bailey to implicate him as a part of her own cooperation agreement with the government, coupled with a belief that a jury would be more likely to credit her testimony over his denial, given his status as a young black male with a prior arrest for possession with intent to distribute crack cocaine. ³

After a hearing, the trial court judge ultimately allowed Burch to withdraw his plea pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. "Implausible as Mr. Burch's belated claim of innocence may seem, the Court will give Mr. Burch his day in court." Memorandum Opinion and Order, United States v. Burch, Crim. No. 95-225-01, at 5-6 (D.D.C. Oct. 8, 1996) ("Mem. Op."). However, as part of its decision, the court stated that it would not allow him to benefit from Federal Rules of Criminal Procedure Rule 11(e)(6) and Federal Rules of Evidence Rule 410's restriction on the admissibility of statements made pursuant to a withdrawn plea. Id. at 6. In his plea agreement, as well as in a Rule 11 colloquy with the trial judge prior to entering the plea, Burch specifically had waived his rights under Rules 11(e)(6) and 410. In allowing him to withdraw the plea, the trial court announced its intention to hold the defendant to this part of the agreement. See id. at 6-7. The court ultimately ruled that statements made by appellant during the October 25, 1995 plea hearing and a January 22, 1996 debriefing with the DEA could be used as part of the prosecution's case-in-chief, while those made during plea negotiations taking place on October 24, 1995 could only be used for rebuttal or impeachment purposes should the defendant contradict them while on the witness stand.

After a three-day trial, a jury convicted the defendant of possession with intent to distribute more than 50 grams of crack cocaine, while acquitting him of conspiracy to do the same. The trial judge subsequently imposed a sentence of one hundred fifty one months imprisonment, to be followed by five years of supervised release.

II. DISCUSSION

A. Appellant's Evidentiary Challenges

1. The Withdrawn Plea

a. Waiver

Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410 each restrict the admissibility in a trial of a guilty plea previously withdrawn, as well as any statements made during...