United States v. Bigesby, 09-3134
| Decision Date | 22 June 2012 |
| Docket Number | No. 09-3134,09-3134 |
| Parties | UNITED STATES OF AMERICA, APPELLEE v. EDWINA BIGESBY, APPELLANT |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Neil H. Jaffee argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.
Eric C. Tung, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III and Courtney Denise Spivey, Assistant U.S. Attorneys.
Before: BROWN and GRIFFITH, Circuit Judges, and GINSBURG, Senior Circuit Judge.
BROWN, Circuit Judge: Edwina Bigesby has been sentenced to ten years' imprisonment for various drug-related offenses. In this appeal, she contends her convictions should be vacated because the trial judge erroneously excluded evidence critical to her defense. Alternatively, she claims her sentence should be reduced under the Fair Sentencing Act. We reject both arguments, and affirm the judgment below.
On June 26, 2008, Metropolitan Police Department (MPD) investigator Michael Iannacchione submitted an affidavit in support of a search warrant for 1709 Trinidad Avenue NE, Apartment 1, in the District of Columbia. According to the affidavit, a confidential informant (CI) had told Iannacchione that "an individual identified as Reginald Whitaker has been selling quantities of illegal controlled substances from within and outside of 1709 Trinidad Avenue, apartment #1, Northeast, Washington DC." The CI claimed Whitaker would receive cell phone calls from customers, retrieve 14- to 28-gram packets of crack cocaine from either Apartment 1 or one of two cars parked near the apartment (a green truck and a black Honda), and sell the packets for cash.
The affidavit provided additional details supporting the CI's story: Whitaker had been arrested in 2006 at the Trinidad Avenue apartment for distribution of crack cocaine, and had been arrested one block away in 2002 for possession with intent to distribute crack cocaine; a National Comprehensive Consumer Bureau report indicated Whitaker had been associated with the apartment from June 2007 through February 2008; a second CI stated an individual had been selling illegal substances from the apartment; and surveillance confirmed that a black Honda and a green SUV were parked in front of the apartment. Based on thatinformation, Iannacchione declared "probable cause exists that secreted within 1709 Trinidad Avenue apartment #1 Northeast, Washington, DC., there is a quantity of illegal controlled substances[,] namely cocaine."
The affidavit mentioned Edwina Bigesby only twice. It stated that the black Honda parked in front the apartment was registered in her name; and the mailbox listed to the apartment had her name on it.
MPD officers executed the warrant on June 27, 2008. Inside the apartment, they found Bigesby and her three children, over 100 grams of crack cocaine—76 grams inside the rear of the television set, 12.3 grams in a woman's tennis shoe, 14.7 grams in a woman's purse, and 3.4 grams in a different purse—and 3.9 grams of marijuana in a plastic bag in the bedroom. They recovered 13 grams of heroin from the trunk of the black Honda parked outside. Whitaker was not in the apartment, but investigators did find some signs of his presence: a pair of men's dress shoes in the bedroom closet, mail addressed to Whitaker in the dining room, and a pair of men's athletic shoes in the trunk of the Honda.
Two months after the search, the government indicted Bigesby on charges of possession with intent to distribute 50 grams or more of crack cocaine, possession with intent to distribute heroin, and possession of marijuana. The government did not arrest or charge Whitaker.
Bigesby's trial began in July 2009. The prosecution's theory was that Bigesby jointly possessed the drugs in the apartment and the car with Whitaker, the father of two of her children. They introduced testimony that one of the purses containing cocaine also contained Bigesby's driver's license and birth certificate; that Bigesby had said during the searchthat she lived in the apartment and that the drugs were her own; and that Bigesby's fingerprints were on two ceramic plates found next to various drug-related paraphernalia.
For her defense, Bigesby sought to show that Whitaker alone possessed the drugs, but her attempts to do so were purportedly limited by several rulings. The trial judge denied her motion to compel the government to produce the CIs who provided the information in the warrant affidavit. The judge also refused to admit the warrant affidavit into evidence, refused to admit self-incriminating statements Whitaker had made to Bigesby's investigator and attorney, and refused to admit evidence of Whitaker's 2002 conviction for possession with intent to distribute crack.
Without that evidence, Bigesby's defense consisted solely of the testimony of Shawnta Evans. Evans testified that Bigesby and her children had been living with her (Evans) between April and June 2008, and that Bigesby had returned to the Trinidad Avenue apartment on the day of the search just to pick up some items. Evans also testified that Whitaker had keys to the Trinidad Avenue apartment, that she had seen him outside the apartment twice in June 2008, and that she had never seen Bigesby drive the black Honda in which the heroin was found. Apparently unconvinced, the jury returned a guilty verdict on all counts.
On January 6, 2010, the trial judge sentenced Bigesby to ten years' imprisonment for the crack cocaine conviction, the mandatory minimum under 21 U.S.C. § 841(b)(1)(A). The judge sentenced Bigesby to a concurrent ten-year term on the heroin conviction, and a concurrent one-year term on the marijuana conviction. He also imposed a five-year term of supervised release.
Bigesby contends the trial judge improperly excluded evidence relevant to her defense and the cumulative effect of those rulings was to deny her constitutional right to present a complete defense. She also claims she is entitled to be re-sentenced under the Fair Sentencing Act, which increased the amount of crack cocaine needed to trigger a ten-year mandatory minimum sentence. We address those arguments in turn.
Bigesby challenges four rulings: (1) the denial of her motion to compel the government to produce the CIs; (2) the exclusion of the warrant affidavit; (3) the exclusion of Whitaker's self-incriminating statements; and (4) the exclusion of Whitaker's 2002 crack cocaine conviction. In each instance, we find the trial judge did not abuse his discretion. See United States v. Warren, 42 F.3d 647, 654 (D.C. Cir. 1994) (); United States v. Wilson, 160 F.3d 732, 742 (D.C. Cir. 1998) ().
1. Denial of motion to compel the government to produce the CIs. Before trial, Bigesby moved to compel the government to disclose and produce the two CIs who had provided information used in the warrant affidavit. Bigesby argued the CIs might corroborate her theory that Whitaker solely possessed the drugs found in the search.
The trial judge denied the motion under the standard in United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004). The "informer's privilege" permits the government to "withholdfrom disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law," Roviaro v. United States, 353 U.S. 53, 59 (1957), and the privilege only gives way when the informer has "some sort of direct connection, either as a participant or an eyewitness, to the crime charged," Gaston, 357 F.3d at 84. Here, the judge determined the privilege should hold because Bigesby committed her charged crimes on the day of the search, and the CIs "were neither participants nor eyewitnesses to th[ose] crimes."
Bigesby does not challenge the judge's finding that the CIs were neither participants in nor eyewitnesses to the charged crimes. Instead, she contends the judge erred by applying Gaston's "participant or eyewitness" test because the defendant in Gaston sought the identity of the CIs "to investigate whether the government's reliance on such sources was reasonable," 357 F.3d at 85, while she sought the identity of the CIs "to rebut the government's joint possession theory," Appellant's Br. 20.
Our precedents give no legal weight to that distinction. In Warren, the defendant sought the identity of a CI who had informed officers of drug sales at an apartment. Like Bigesby, the defendant "wished to argue that other occupants of the apartment on the day of the arrest were the resident drug sellers." 42 F.3d at 655. We applied the same standard we would later apply in Gaston, and affirmed the district court's denial of the defendant's motion because the CI had neither participated in nor witnessed the charged crimes. Id. at 654. We do so again here.
2. Exclusion of the warrant affidavit. In her opening statement, Bigesby's counsel claimed the warrant affidavit would "show . . . that there was a confidential source workingwith Officer Iannacchione." The government objected, and at the subsequent bench conference, argued that if the judge eventually admitted the affidavit into evidence, then he should also admit: (1) statements from the CIs that they had observed Bigesby selling drugs in the past; and (2) evidence that MPD officers had observed Bigesby engaging in suspicious drug-related behavior in 2007. The trial judge agreed, warning Bigesby's counsel that if she persisted in referencing the warrant affidavit, she would "open[] the door" to the government's additional evidence. Bigesby's counsel opted not to mention the warrant affidavit in the remainder of her opening...
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