USA v. Bailey, Gary, No. 01-3071 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2002 Decided January 24, 2003

No. 01-3071

United States of America,

Appellee

v.

Gary Bailey,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 99cr00164-04)

David B. Smith, appointed by the court, argued the cause

and filed the brief for appellant.

Susan A. Nellor, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr.,

and John Crabb, Jr., Assistant U.S. Attorneys.

 Before: Randolph and Garland, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

Williams.

Williams, Senior Circuit Judge: A jury convicted Gary

Bailey of conspiracy to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. ss 846, 841(a)(1),

841(b)(1)(B)(ii) (2000). The court sentenced Bailey to 130

months' imprisonment and to eight years of supervised re-

lease. In this appeal, Bailey challenges three evidentiary

rulings by the district court. We affirm the district court,

finding that while two of Bailey's challenges have merit, the

errors were harmless.

According to the government's evidence, Bailey supplied

five kilograms of powder cocaine to Daniel Clayton on April

15, 1999 for use in a drug deal near the Watergate Hotel.

Bailey owned the cocaine, and Clayton (who pled guilty and

testified for the government) served as a "broker" for its sale.

Clayton drove the cocaine from New York to Washington in a

Honda with a secret compartment (a "trap") installed by a

third defendant, Darryl Simmons, who flew down to D.C.

separately. Bailey followed Clayton in an Acura. Bailey and

Clayton later picked up Simmons from the airport in D.C.,

and the two cars went on to the Watergate area. Though the

deal was originally for five kilos of crack cocaine (apparently

Simmons was going to "cook" the powder cocaine in D.C. to

make it crack once it was clear that the sale would go

through), the quantity was for some reason later reduced, and

the police were given four kilos of powder. Clayton and

another defendant gave the cocaine to the "buyer," Kevin

Goode, a Drug Enforcement Administration "cooperator."

After inspecting the contents, Goode gave the signal, and

officers arrested Clayton, Bailey and another defendant.

Simmons escaped initially but was eventually arrested in New

York.

Several items of evidence linked Bailey to the drug transac-

tion. When Bailey was arrested, he was in the Acura, which

several officers had seen driving in tandem with the Honda--

arriving at the Watergate area, proceeding to the airport to

pick up Simmons (who knew how to get the cocaine out of the

trap), and returning to the Watergate area. Throughout

these peregrinations the Acura that Bailey drove stuck with

the Honda that contained the cocaine; observing officers saw

the vehicles making U-turns together, indeed virtually

"bumper locked." In the Acura was a piece of paper with

Clayton's cell phone number, and Bailey's cell phone records

showed five calls to Clayton's cell phone on April 15, and two

on the day before. Clayton testified extensively about Bai-

ley's involvement. Simmons testified that he let Clayton use

his Honda with the secret compartment to carry the drugs,

and that while Clayton was in the Honda in New York,

Simmons saw Clayton transfer the drugs from a car that

Bailey was driving and put them into the Honda.

The government also introduced evidence of other drug

deals of Bailey's. First, Clayton testified that before the

April 15 deal, he had made between seven and twelve powder

cocaine deals with Bailey over a nine-month period, ranging

from three ounces to three quarters of a kilogram. There

was also testimony of two specific drug episodes in New York.

First, an officer testified about finding two small bags of

cocaine on Bailey, totaling about 50 grams, on February 2,

2000. Second, several witnesses testified to a cocaine trans-

action in the Bronx on June 12, 1998, in which 225 grams of

cocaine were found in Bailey's car. Both Clayton's vague

reference (the seven to twelve deals) and the two New York

transactions were admitted under Rule 404(b) of the Federal

Rules of Evidence to show knowledge, motive, opportunity,

intent, and plan. There is no dispute about those admissions

or the court's instruction allowing that use. But there was

also an instruction--hotly contested--allowing the jury to

consider the two New York transactions to corroborate Clay-

ton's testimony about his prior drug transactions with Bailey.

Finally, the government produced an expert witness, De-

tective Tyrone Thomas, who testified as to the modus operan-

di of drug dealers. The testimony tended to explain the

maneuvers of Bailey and his colleagues in terms of the

purposes and problems facing participants in major drug

deals.

The defense was skimpy. Bailey did not testify at all. The

core of his defense appeared to rest on evidence that a

number of ladies' clothes, including undergarments, were

found in the Acura. He was apparently trying to show that

he had come to the District to have a tryst with a woman--

though he offered no evidence that such a project was mutu-

ally exclusive with a drug deal. In cross-examination he

severely attacked the credibility of Clayton.

Bailey raises three challenges. First, he argues that it was

error to prevent him from eliciting testimony that he had not

yet been tried on his two New York offenses. Second, he

argues that the jury should not have been instructed that it

could use the evidence of his two prior New York offenses to

corroborate Clayton's testimony. Finally, he argues that

Detective Thomas's testimony violated Rule 704(b) by sug-

gesting that the witness had some special insight into Bailey's

mental processes.

* * *

Admissibility of the Legal Status of Bailey's Past Acts

Bailey first argues that he should have been allowed to

elicit testimony that he had not yet been tried for the two

New York offenses that were introduced under Federal Rule

of Evidence 404(b). We review this claim for abuse of

discretion. See United States v. Clarke, 24 F.3d 257, 267

(D.C. Cir. 1994).

Since the government has given us no affirmative reason

for excluding the evidence of the legal status of defendant's

other acts, the question is whether that evidence is relevant

under Federal Rule of Evidence 401. It defines relevant

evidence as "evidence having any tendency to make the

existence of any fact that is of consequence to the determina-

tion of the action more probable or less probable than it

would be without the evidence." Fed. R. Evid. 401. At first

glance, the relevance of the fact that Bailey had not yet been

tried for the other crimes appears feeble to non-existent.

While an affirmative government decision not to prosecute

may suggest weakness in the government's evidence, the

simple fact that the prosecution will likely take place in the

future supports no such inference.

But Bailey argues that the jury would speculate about

whether or not he had been convicted of the 404(b) crimes,

and would likely infer conviction from silence. The govern-

ment's evidence of the crimes took the form of the arresting

officers' testimony about the narcotics transactions and the

ensuing arrests. It seems plausible that not a few jurors

would have speculated that conviction followed. We can find

no case directly holding that evidence is relevant solely to

refute a likely mistaken jury inference (though there are a

few where that appears to be the dominant purpose, see, e.g.,

United States v. Powell, 226 F.3d 1181, 1199 (10th Cir. 2000);

United States v. Johnson, 802 F.2d 1459, 1463-64 (D.C. Cir.

1986)); one case, United States v. Jones, 808 F.2d 561 (7th

Cir. 1986), mentions the possible use of an acquittal for the

specific purpose of correcting jury speculation that the defen-

dant had been convicted, but reaches no conclusion on rele-

vance, id. at 566-67. Our own closest case, United States v.

Thomas, 114 F.3d 228 (D.C. Cir. 1997), also considers the

admissibility of an acquittal, but not its possible relevance to

rebut an inference of conviction, and in any event ultimately

goes off on narrow factual grounds. Id. at 249-50. We think

that if the jury inference is plausible, evidence to rebut that

inference is relevant. A similar theory may underlie the

Supreme Court's positive emphasis, in Dowling v. United

States, 493 U.S. 342 (1990), on the trial court's having twice

instructed the jury that the defendant had been acquitted on

the 404(b) crime, id. at 345-46, 353.

Jones, mentioned above as entertaining the possible rele-

vance of acquittal for refuting mistaken jury speculation, in

the end upheld exclusion on the grounds of possible prejudice,

808 F.2d at 566-67, presumably the risk that the jury might

overread acquittal to signify innocence rather than merely

failure of the government to show guilt beyond a reasonable

doubt. Plainly the risk of prejudice (which under Rule 403

would support exclusion) is far less in the case of mere

evidence that the defendant hasn't yet been tried; indeed, as

we said earlier, the government never adduced any affirma-

tive reason to exclude the evidence.

Evidence that no trial has occurred need not raise the sort

of hearsay issues posed by convictions or acquittals. Where

either of those is offered to show commission or non-

commission of the acts in question, they are hearsay: in effect

they simply quote the assertion of 12 jurors (who did not

themselves perceive the acts charged) that the person did or

didn't do the acts. But convictions come into evidence all the

time--thanks to the Rules' explicit provision of a hearsay

exception, Federal Rule of Evidence 803(22). No comparable

exception exists for acquittals, though other exceptions, such

as the one for public records, see Rule 803(8), may allow some

uses of acquittals. But evidence that a defendant has not

been tried on a charge, where offered simply as proof that he

has not been tried and convicted, is not hearsay. Obviously

the defendant knows that directly; non-hearsay reports as to

the absence of relevant court records provide an alternative

means. In most cases, we should expect, the parties could

resolve it by stipulation.

Having found that the evidence was relevant and that there

was no affirmative reason for exclusion, we believe the exclu-

sion was error--though we hesitate to find abuse of discre-

tion, given the narrow purpose the evidence would have

served. In any event any error was harmless.

For nonconstitutional error, an appellate court must deter-

mine with "fair assurance ... that the judgment was not

substantially swayed by the error." Kotteakos v. United

States, 328 U.S. 750, 765 (1946). The judge here expressed

his concern that there might be an "improper [jury] inference

that Mr. Bailey was convicted of these charges which are now

still pending," 2 Trial Tr. at 250, and sought to cure the

problem by instructing the jury, "You may not consider or

speculate about the status of any charges against the defen-

dant in that case." 5 Trial Tr. at 234. We think this

considerably reduced the risk that the jury might leap to the

conclusion that the defendant had been convicted.

Beyond the judge's instruction, the government's evidence

was quite strong, both on the whole and as to these past

incidents. Several law enforcement officers testified to the

June 12, 1998 offense. They had been surveilling one Robert

Hunt, who had agreed to sell cocaine to an undercover police

officer. They saw Bailey conferring with Hunt immediately

before Hunt made the sale. As the police were arresting the

participants and searching the apartment where the sale

occurred, Bailey looked in the direction of the police, threw

his keys on the ground, and walked away. Inside the car that

matched the keys, the police found 225 grams of cocaine, and

inside Bailey's wallet they found a registration for the car in

Bailey's mother's name. For the February 2, 2000 incident,

the police found two bags of cocaine1 in Bailey's pocket. It is

highly likely that the jury would have found these incidents to

be true even if it had been told that Bailey hadn't yet been

tried. Further, the government's case as a whole was strong,

consisting of both the direct testimony of Clayton and Sim-

mons, the strong circumstantial evidence, and the expert

testimony of Detective Thomas. For these reasons, we have

a fair assurance that the judgment was not substantially

swayed by the error.

Use of Rule 404(b) Evidence for Corroboration

The two New York incidents are the source of another

argument--that the court erred in instructing the jury that it

could use the incidents to corroborate Clayton's testimony

that he had engaged in prior cocaine deals with Bailey, and

thus his story about the crime actually charged. The parties

agree that the two incidents were properly admitted under

Rule 404(b) to show knowledge, motive, opportunity, intent

and plan, and dispute only the corroboration instruction. We

review for abuse of discretion. Cf. United States v. Bowie,

__________

1 The testimony as to the exact amount of cocaine is obscurely

worded: "Two-one-eighths ounce plus forty-seven-point-four

gram[s]." 4 Trial Tr. 246.

232 F.3d 923, 926-27 (D.C. Cir. 2000) (stating standard of

review for admission of 404(b) evidence).

Bailey argues that before evidence is used under Rule

404(b) for corroboration it should have to pass two extra

screens imposed by two other circuits--that the corroboration

be direct and the corroborated matter be significant. See

United States v. Pitts, 6 F.3d 1366, 1370-71 (9th Cir. 1993);

United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987).

But we rejected the approach of these circuits in Bowie, 232 F.3d at 933 n.7, reasoning that any special concerns were

properly addressed in balancing probative value against prej-

udice, etc. under Rule 403. Bailey attempts to distinguish

Bowie on the ground that there the corroboration was of the

act actually charged in the indictment, while in this case, the

corroboration is only of other acts admitted under 404(b)

(Clayton's prior seven to twelve cocaine deals with Bailey).

But Bowie itself makes no such distinction, and no language

in Rule 404(b) supports it.

Nonetheless, use of 404(b) evidence for corroboration does

have inherent complications. Corroboration, in and of itself,

is not a separate purpose belonging in the open class of

permissible purposes referred to in Rule 404(b)'s second

sentence. If it were, evidence could slide past the rule

against improper character evidence. To decide if Rule

404(b) evidence is admissible for corroboration, the court

must determine what is being corroborated and how. If

similar past acts were corroborative only because they

showed the defendant's character and the likelihood of "action

in conformity therewith," plainly the rule would call for

exclusion. On the other hand, evidence might corroborate a

witness's testimony by showing plan, purpose, intent, etc. and

therefore be admissible under 404(b). The label "corrobora-

tion" thus merely invites a closer look at exactly how the

evidence may be probative.

Clayton, it will be recalled, was not himself a part of

Bailey's two New York drug deals. The only legitimate way

for that evidence to corroborate Clayton's testimony was to

help show Bailey's knowledge, intent, etc. as to the seven to

twelve Rule 404(b) drug deals that Clayton mentioned. In

other words, they were 404(b) evidence for Clayton's 404(b)

evidence.

As to Bailey's intent or purpose in the seven to twelve

incidents, it is hard to see how the New York deals could add.

Clayton had summarily described the deals, making clear that

they involved cocaine and that Bailey was selling to him, see 4

Trial Tr. 7-11, but Clayton had never in any way put Bailey's

state of mind in issue. Bailey could have been a zombie

throughout the seven to twelve deals, and the fact would not

have contradicted Clayton's testimony in the slightest. But

the incidents do help to show that Bailey had opportunities to

acquire cocaine, and at least the 1998 incident (involving some

semblance of a drug deal rather than mere possession) seems

relevant to show knowledge of how to deal in cocaine.

In the weighing required by Rule 403, however, the evi-

dence had little probative value for permissible corroborative

purposes. Given the vague nature of Clayton's testimony

about the seven to twelve past deals with Bailey, jury interest

in the sort of opportunity and knowledge described was likely

minimal. On the other side, by contrast, there were risks of

unfair prejudice, confusion and misleading the jury. The

permissible link is subtle, the impermissible one obvious and

likely to be salient. The likelihood of confusion and prejudice

seems overwhelming, at least in the absence of a clear and

emphatic instruction, the framing of which strikes us as a

daunting task. In any event, no such instruction was even

attempted here, rendering the corroboration instruction er-

ror.

But this error was harmless. The incremental effect of the

corroboration instruction was likely very small. It seems

improbable that it did much to strengthen the jury's belief in

Clayton, especially as the evidence of the New York incidents

had already been properly admitted. And the case against

Bailey was generally strong. We do not think the jury's

judgment was substantially swayed by the error, even in

combination with the error discussed above.

Testimony of Detective Thomas

Bailey's last objection is to the allowance of testimony that

he says violated Rule 704(b)'s ban on an expert witness's

giving an opinion as to "whether the defendant did or did not

have the mental state or condition constituting an element of

the crime charged or of a defense thereto." Fed. R. Evid.

704(b). Here he points to the evidence of Detective Thomas.

The closest that testimony came to suggesting that the expert

knew what was in the defendant's head was his statement

that "no one would want to tag along [on a large-scale drug

transaction] who is an innocent person...." 6 Trial Tr. at 16

(emphasis added).

There having been no objection to this testimony, we

review for plain error. United States v. Olano, 507 U.S. 725,

732-35 (1993) (requiring error that is plain and that affected

substantial rights). Because we find no error at all, the extra

elements for plain error need not detain us.

In United States v. Smart, 98 F.3d 1379 (D.C. Cir. 1996),

we said that testimony should not be excluded under Rule

704(b) as long as it is clear that the expert is testifying on the

basis of his knowledge of general criminal practices and not

on some special knowledge of the defendant's mental process-

es. Id. at 1388 (also involving testimony by Detective Thom-

as). We said that this inquiry required consideration of

(1) the language used by the questioner and/or the ex-

pert, including use of the actual word "intent"; and (2)

whether the context of the testimony makes clear to the

jury that the opinion is based on knowledge of general

criminal practices, rather than "some special knowledge

of the defendant's mental processes."



Id.

Here the phrase quoted earlier--that no one would tag

along who was "an innocent person"--is certainly a close

equivalent of what Rule 704(b) excludes, namely stating "the

mental state or condition constituting an element of the crime

charged or of a defense thereto." Clearly prosecutors should

take care not to elicit, and experts not to make, statements

that fall so close to the line. But Smart directs us to consider

the context of the testimony, and here the context would have

told the jury that Thomas was testifying solely from "general

criminal practices."

Thomas's testimony centered on how drugs were distribut-

ed and the roles that workers in the drug world played in

their distribution. He explained that drug dealers at the kilo

level took great precautions against getting caught, using

intermediaries, for example, such as brokers and people

called "mules" who help transport the drugs. He also testi-

fied as to the cities into which drugs are trafficked generally,

the way in which drugs are usually packaged, the difference

between crack and powder cocaine and how transformation

into crack increases the number of highs per unit of cocaine,

the amount of cocaine a person buys at one time for personal

consumption, how much money will be gained by the sale of a

certain quantity of cocaine on the street level, the size and

nature of traps in vehicles used to store drugs, money, or

guns, and the use of informants as opposed to undercover

officers. Thomas's testimony was far broader than the spe-

cific circumstances of Bailey's activities. Additionally, many

of the specifics to which he testified had little to do with

Bailey's mental state. His testimony was clearly intended to

give the jury information about the way high-level drug sales

worked.

Further, we said in Smart that if it is made clear to the

jury that the expert was not qualified to testify to the

ultimate issue of intent, there is no violation of Rule 704(b).

Smart, 98 F.3d at 1389. That was made clear here. Detec-

tive Thomas frequently specified the source of his testimony.

For instance, in discussion about whether drug dealers deal-

ing with kilo-size weights normally arm themselves, Thomas

said that he had been involved in a couple of hundred

investigations where kilograms of cocaine were being sold,

and that in only 15% of them were any sort of weapons

involved. In discussing how many doses of crack five kilos of

powder cocaine would yield, Thomas prefaced his answer by

saying that it was what he knew from personal experience in

his past work for the police department and drug enforce-

ment.

And at a number of points Thomas explicitly noted his

limited connection to the facts of the Bailey case. In answer-

ing the defense counsel's question on cross examination of

whether he was "talking about the facts in this case," Thomas

replied by saying, "No, I don't know the facts, all the facts in

this case. I wasn't a part of the investigation." 6 Trial Tr. at

18. He said he had never met Bailey "that I can recall, and I

know nothing about him, that I know of. No." Id. at 33.

And in virtually the final impression that Thomas left with

the jury, on redirect, he and government counsel had the

following exchange:

Q: Were you involved in the investigation of Mr. Bai-

ley?



A: No, I wasn't.



Q: Did you do surveillance?



A: No, I didn't.



Q: Did you have any involvement at all in that investi-

gation?



A: None, whatsoever.



Q: Is your testimony yesterday and today about your

general experience?



A: That's what I'm testifying, my general experience

that I've accumulated over twenty-nine years of investi-

gating narcotics[,] as what I've learned as how narcotic

deals go.

Id. at 50. These statements clear up any suggestion that

Thomas might have purported to rest the "innocent" com-

ment on any special knowledge of the defendant's mental

processes. Admission of his testimony was not error, and

therefore we need not reach the other elements of plain error.

The judgment of conviction and sentence are

Affirmed.