U.S. v. Foster

• Decision Date: 02 March 1993
• Docket Number: No. 92-3109,92-3109
• Parties: , 38 Fed. R. Evid. Serv. 195 UNITED STATES of America v. James Anthony FOSTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 541

986 F.2d 541

300 U.S.App.D.C. 78, 38 Fed. R. Evid. Serv. 195

UNITED STATES of America v. James Anthony FOSTER, Appellant.

No. 92-3109.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 14, 1993.

Decided March 2, 1993.

Appeal from the United States District Court for the District of Columbia (91cr00542-01).

Robert L. Tucker, Asst. Federal Public Defender, argued the cause for appellant. With him on the brief was A.J. Kramer, Federal Public Defender.

James S. Sweeney, Asst. U.S. Atty., argued the cause for appellee. With him on the brief were Jay B. Stephens, U.S. Atty., John R. Fisher and Thomas C. Black, Asst. U.S. Attys.

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

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The principal issue is whether, under Rule 501 of the Federal Rules of Evidence, a law enforcement officer giving eyewitness testimony against an accused at trial may refuse to answer questions about the location from which the officer made his observations. We are also called upon to decide whether the district court properly sustained, on the basis of lack of relevancy, objections to questions asked by defense counsel on cross-examination.

After a jury trial, James A. Foster was convicted of unlawfully possessing more than 5 grams of crack cocaine with intent to distribute and of committing the offense within 1000 feet of a school. Sergeant Thomas Clark of the U.S. Park Police was the critical witness for the prosecution. His identification of Foster supplied the only evidence directly linking Foster with the cocaine.

The facts, as Sergeant Clark related them, are these. On a clear, sunny August afternoon, Clark settled into his observation post in a District of Columbia neighborhood known for its illicit drug activity. Thirty to forty feet below him and 150 yards away, near an apartment complex, were a parking lot, a basketball court and a playground. Clark was watching this area with 10 X 50 binoculars when he spotted an individual, whom he later identified as Foster, sitting in the front seat of a car in the parking lot.

Events typical of drug dealing then unfolded. Sergeant Clark saw Foster give something to someone in the back seat, leave the car, walk to the basketball court, receive money from another individual, count the bills, hand over a small white object, walk away, take two clear plastic bags from his pocket, put them into a brown paper bag, drop the bag over a chain link fence, pick up the bag again, walk over to the apartment building and drop the paper bag near another fence. Clark radioed a description of Foster. Other officers arrived at the scene. One arrested Foster and found $311 on him. Another officer retrieved the brown bag. It held 51 packets of crack cocaine.

Naturally, the defense sought to raise doubts about the accuracy of Clark's identification. During cross-examination, defense counsel asked Clark to reveal the spot from which he made his observations. The government objected on the basis of the "observation post privilege" and the district court sustained the objection. The court's ruling raises the first issue.

I

With exceptions unnecessary to mention, the privilege of a witness not to testify about a matter in a federal trial is "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Rule 501, Fed.R.Evid. Two decisions of this court under Rule 501, the government maintains, entitled Clark to refuse to answer. One is United States v. Green, 670 F.2d 1148 (D.C.Cir.1981); the other United States v. Harley, 682 F.2d 1018 (D.C.Cir.1982).

Green drew an analogy to the informer's privilege, which permits the government to withhold the identity of a person who supplied information about criminal activity. Revealing the person's identity could "destroy his future usefulness in criminal investigations"; the same might be said about revealing the location of surveillance. 670 F.2d at 1155. Disclosing the informer's name might make others less willing to cooperate; disclosing the names of persons who allowed the police to use their apartments or houses as observation posts might have the same effect. Id.

Green dealt with the issue in the context of a pretrial suppression hearing and so limited its holding. 670 F.2d at 1157 n. 14. As Green recognized, an informer's identity must be revealed at trial if this would be "relevant and helpful to the defense of an accused," Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957), but the government still might successfully invoke the informer's privilege at a suppression hearing. See McCray v. Illinois, 386 U.S. 300, 311-12, 87 S.Ct. 1056, 1062-63, 18 L.Ed.2d 62 (1967). The proceedings have different functions. Suppression hearings determine whether the police engaged in unlawful conduct, and seek to deter such conduct by excluding evidence. Trials decide whether the accused committed the offense charged. Privileges shield witnesses from cross-examination. A defendant's right of cross-examination is more limited at suppression hearings than at trials, which is why hearsay is generally admissible at the former but not the latter. See United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980).

Harley, on the other hand, sustained an "observation post privilege" at trial. The court took Roviaro to require a "balancing" of the defendant's interest in disclosure against the government's interest in nondisclosure. 682 F.2d at 1020. Crucial to Harley were the following considerations relating to the defendant's need to know. The officers who conducted the surveillance were not essential witnesses for the prosecution; Harley was charged with engaging in a drug transaction with a different officer who identified him at trial. Id. at 1021. Defense counsel sought to learn only the floor of the apartment building from which the officers watched the transaction; no questions were raised about the officers' ability to observe. Id. Using a camera with a telephoto lens, the officers videotaped what they were seeing. The prosecution introduced the tape into evidence. It showed "the view the officers in the surveillance post had, the distance, the angle, and the existence or nonexistence of obstructions in the line of sight." Id. The Harley court discerned nothing more the defendant could have gained by "learning the number of the apartment from which the police observed him." Id. As to the government's interest in maintaining the secrecy of the observation post, the court relied on "the safety of the cooperating apartment owner or tenant" and "the willingness of other citizens to cooperate with the police in this fashion in the future." Id. at 1020.

Not one of the considerations mentioned in Harley in favor of the privilege is present in this case. Unlike Harley, the witness claiming the privilege was crucial to the prosecution. Without Sergeant Clark's testimony, the government's case against Foster would have collapsed. The more important the witness to the government's case, the more important the defendant's right, derived from the Confrontation Clause of the Sixth Amendment, to cross-examine the witness. See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). Unlike Harley, the defense challenged Clark's perceptions, his ability to identify Foster and the accuracy of his identification. Fifteen other people were in the vicinity at the time, some playing basketball, others moving about in the open area. One officer who arrived on the scene in response to Clark's call describing Foster arrested someone else (who was then released). The defense understandably wanted to cross-examine Clark about his estimate of the distance between him and Foster and the angle of his view and his testimony that nothing blocked his line of sight. Without knowing the location of the observation post, the defense could not effectively probe the officer's memory or veracity about these subjects. The right of the defense to engage in such lines of inquiry is at the heart of our system of criminal justice. The videotape in Harley preserved the right. See also United States v. Van Horn, 789 F.2d 1492, 1507-08 (11th Cir.1986). No comparable substitute was available in this case.

It is no answer to say, as the government does, that the defense failed to cast substantial doubt on the accuracy of Clark's testimony. Creating such doubt would have been one of the objectives of cross-examination following revelation of the observation post. The essence of successful cross-examination is in selecting questions that undermine the witness's version of reality. This is not so much a matter of showing a witness to be lying. An effective trial lawyer can often manage to leave the jury with the impression that the witness is too caught up in his own view, his confusions, his own...