German v. United States

two of grant Thus, whom voted to it.

can majority be seen that a of the active

judges of this court has not been able to question

decide the presented peti- rehearing

tion for en banc. It remains an

open question. GERMAN, Appellant

James Neil

, v. STATES, Appellee.

UNITED

No. 85-1621.

District of Appeals. Columbia Court of

Argued Nov. 1986. 7,May

Decided Feigelson, appellant.

Allan P. Atty., Parkinson, U.S. Larry R. Asst. diGenova, Atty., Joseph whom E. Zeno, Farrell, E. Thomas Michael W. Attys., Bruce, L. Asst. and Blanche brief, appellee. were on PRYOR, Judge, Chief Before ROGERS, FERREN, Associate Judges.

ROGERS, Judge: Associate I. investigation of James German be- Appellant James Neil German was con- gan George when Melson complained to a by jury, victed upon retrial after the first investigator at the United States verdict, was unable to return a of one Department Agriculture friend, that his count trafficking stolen property, D.C. Weems, Jessie illegally exchanging (1986 Code Supp.), and sen- § 22-3831. stamps food at German’s grocery store for tenced to 40 to years months ten and fined cash, liquor, and other non-food items. The $10,000. appeal On he contends that the Agriculture Department investigator, Mel judge improperly trial participated in the Bowling, contacted the Metropolitan Police plea negotiations, and that he was later and, after planning, substantial Officer Ru- penalized with a heavier sentence for exer- Archer, fus who an had worked in under- cising right his a jury to trial. He also times, capacity cover several thousand challenges validity the of trafficking the supplied property with bait and worth $250 grounds improp- statute that it was stamps. of food January 4, On he enacted, erly unconstitutionally is over- Anderson, and Russell a special Depart- vagueness, broad and void for and uncon- Agriculture ment employee, of entered stitutionally him deprives of the defense of store, Store, German’s Grocery the G & G Further, impossibility. argues he that the Bowling provided while surveillance from a trial court committed error by parking reversible lot. After a short conversation inside, admitting testimony employee, Henson,1 into evidence the a store of Kenneth told Archer that he Melson, could handle George which constituted evidence stamps, but Archer would to have crimes, tape, copy other and a a goods. German about German entered tape, and transcript a derivative of an shortly thereafter, the room instructed undercover conversation between German pay stamps, Henson to Archer $125 officer, police allegedly and a were inspect and went outside to property, by not supported a chain of sufficient cus- purchased. which he later Archer testified tody, by excluding testimony and he goods, told German that the a stereo accountant, sought German’s who to intro- telephone, receiver and a cordless had been duce German’s income tax returns. Final- buddy stolen by a who worked at Hecht ly, challenges German refusal Company, and were worth German $550. give requested to jury instruc- $150, purchased goods inquired tions that an adverse inference could be possibility obtaining into the more food drawn from the failure to stamps property. call as witness one the officers en- Archer made a similar of food sale gaged in the operation, undercover stamps eight days to German later. This must have had reason- time, stamps stated that the Archer food suspicion investiga- able to commence an had been stolen a friend who worked entrapment tion in. order to avoid an de- Avenue, stamps 300 Indiana where the fense. produced. were German asked about agree pretrial We stamps court’s re- method to and in- used steal 11(e)(1); stamps Archer on Super. marks structed how should violated Ct.Crim.R. prevent tracing be stolen in order however, German has failed to meet his the serial numbers. prejudice burden to show in that he was penalized exercising his sixth amend- February Archer On was fitted right ment trial. find no We body with a recorder and returned G statutory challenges merit to his and no Grocery another & G Store with cordless evidentiary or digital pur- instructional error. Accord- telephone and a clock. German $55, ingly, goods for we affirm. chased the either $50 (Cr. jointly attempting property. receive German tried with Henson counts of stolen F-2192-83), part appeal. No. who was of three Henson’s conviction is not of this convicted put asked, year. I would you get carry else me.” no more than a later “What can way. A not the most you conversation ensued in which German this This is it to expressed purchasing overwhelming conspiracy his interest in I have goods, especially remote lifetime, politely; televisions with my put seen control, be stolen from the Hecht’s ware- government’s case and the “friend,” identity did he conviction, house whose strong enough get but I know; he that he want to also stated overwhelming. It did sure it’s am not years.”2 in this business 15 “been I am not get a conviction last time. arrested five German was on a warrant know, sure, you does not seem be days later. odd, something conspiracy, if involves Agriculture dying Department testify did not at the trial. come to an stamp out or the world will he called three who defense witnesses trafficking finding end unless a they had January that on testified in this It’s not the returned matter. fitting description of- seen a man Archer’s on the calen- or the newest case oldest to gifts fer some Christmas in order to sell dar, appears to is it one that be nor eviction, that left the avoid an had German life-threatening, require that would the Archer, they and re- store that any these individu- incarceration resembling boxes turned with Christmas of of convicted, surely they would als and gifts. manager Dearring, Michael a sales if appeal any pending be released January City, testified Circuit that on question And it’s commit- event. a purchased German two color tele- like ment of resources to a matter that. Susy Miles char- vision sets. testified as a would, continue you And if we will this reputation that acter witness German’s honesty explain, “as I until eleven. truth and far as can excellent.” [is] Yes, prosecutor]: sir. BRUCE MS. [the Judge German’s initial before trial you if be kind THE COURT: And Salzman resulted in a when the mistrial simply my thoughts? enough convey to jury failed to return the a verdict. At opinion I have no as to whether de- trial, Salzman, Judge second also before a guilty; is or not whether it’s fendant trafficking in jury convicted German of day part of the a five trial on worth property, stolen and he to 40 was sentenced Government, outcome, and whatever years $10,000. ten months to and fined disposi- seem reasonable if that would a appeal This followed. thing you? to tion of the whole Participation.

II. Judicial proceed I will to trial at eleven But o’clock, you if wish to morning; German first contends that the trial trial, simply try so I go to be it. will judge improperly plea participated something else. This is far inter- by plea bargaining process suggesting a drug dealing. esting than usual bargain, by expressing his view very case the evidence serious and argues supplied.) (Emphasis German strong, by commenting very impermissible statements constituted these likely The occurred sentence. statements participation plea bargaining judicial in the as follows: Super. in violation of Gt.Crim.R. process Well, 11(e)(1), that he relied on the trial put I it this

THE COURT: will choosing go projections in to to attempted an traffick- way. How about bargain.3 accept plea to rather than property? in stolen That would be trial that, his convic- offense, contends after and it misdemean- He further an would be a tion, imposed maximum sen- suggest judge I that seem or. —Does exercise of your penalty as a for German’s client? That would tence reasonable dispose of all the tran- The offered 2. These statements were contained in pleaded guilty charges three tape mis- script made the conver- if that was from a demeanors. sation. Werker, right States v. his sixth amendment to a (2d trial F.2d denied, cert. jury. Cir.), A. leaves no purpose room doubt that its 11(e)(1) provides judge Rule that a trial meaning sentencing participate “shall not in any ... discus judge part no should take whatever leading sions” plea agreement to a between any regard- discussion or communication government.4 defendant and the As in ing the imposed prior sentence to be terpreted by courts,5 the federal rule entry plea guilty of a or convic- prohibits a judge assuming “from tion, or plea submission to him negotiator role an plea active agreement. Frank v. Black bargaining process.” The Werker court issued a writ manda- burn, (5th Cir.1980) (en prohibiting mus from dis- bane) (applying provision), identical federal closing, prior pleadings, the sentence modified, (deleting 646 F.2d 902 statement imposed guilty plea if entered. lack remorse demonstrated fail Id. at 201-04. This prohibition is absolute plead guilty justification ure to is itself a of the “role sentence), a more severe agreement an once reached: court accept must decide for itself whether rule, according bargain.” reject plea rule, 4. The rule is identical unequal positions federal Fed.R. and the 11(e)(1). accused, We look to federal in decisions Crim.P. power one with the to commit to interpreting our rule. See McClurkin United v. prison deeply and other concerned to 1348, (D.C.1984); 472 A.2d 1359 n. 14 prison, question once avoid raise a of fun- 996, v. Williams United 998-99 judge damental fairness. When a becomes a (D.C.1979). brings participant plea bargaining in he to majesty the full and of his bear force office. adopting In 11 amendment to Rule in power impose substantially His awesome a 1974, judge participate that “the trial shall not longer or even maximum sentence in excess Advisory ..the Committee commented that proposed present is of that whether referred adopted notwithstanding the amendment was or not. A defendant needs no reminder recognition judicial of the fact practice. is that comment rejects proposal, upon if he that stands his a common The amendment follows convicted, right to he trial and faces a the American Bar Association Standards Relating significantly longer 3.3(a) (1968) sentence. United States recognizing Guilty § in Pleas Gilligan, F.Supp. ex rel. Elkins v. 256 [Elksnis] 244, (S.D.N.Y.1966). 254 judge are There valid reasons for a avoid hand, On the one commentator has plea might other in involvement discussions. It position judge may lead the defendant believe that would taken the be in- he trial, agree- a not receive a fair were there trial volved in discussions either after the going judge. before the same The risk of not help or to facts ment is reached elicit and an along disposition apparently with the desired Enker, agreement. Perspectives on Plea Bar- judge might induce the defendant to gaining, in on President’s Commission Law plead guilty, even if innocent. Such involve- Justice, Administration of Enforcement and judge objec- ment makes it for a difficult 108, Report: Force The Courts Task 117-118 plea. tively assess the voluntariness of the (1967). Relating Guilty Standards ABA Pleas of judge makes The amendment clear that 3.3(a), Commentary (Approved at 72-74 § participate plea should not in discussions Draft, 1968); Note, Guilty Bargaining: Plea leading agreement. plea to a It contem Compromises By Prosecutors To Secure may plated participate in such Pleas, 865, Guilty (1964); 112 U.Pa.L.Rev. 891-892 plea agree as occur when the discussions Comment, Official Inducements open This is ment is disclosed court. Guilty: Suggested Plead Morals for a Market- recently adopted position Illinois of the Su 167, place, 32 U.Chi.L.Rev. 180-183 402(d)(1) (1970), preme Court Ill.Rev. Rule Opinion Informal No. 779 ABA Professional ("A judge 1973, 110A, 402(d)(1). As to § ch. what Stat. may Committee should not be a Ethics People “participation,” constitute contrast arrangements party to advance for the deter- 256, Earegood, Mich.App. 162 v. 12 sentence, whether a of a mination as result 802, Kruse v. N.W.2d State, guilty plea finding guilt on based 460, (1970). 47 Wis.2d N.W.2d (1965). proof.”), 51 A.B.AJ. 444 As has been recently pointed out: Cir.1981). entering guilty Adams, (5th being coerced 634 F.2d from into have, however, See, shown v. Appellate plea. e.g., Byrd courts Nonetheless, judicial commentary tolerance to A.2d 400 these likely participation when the state still sentences comments are within request upon at the specific they ment is made Rule 11 because intrude letter of Blackburn, su neutrality defendant. See Frank v. that is so central to judicial 883; F.2d at pra, 646 Blackmon bargaining and the sentenc plea both the (5th 5; Cir. Wainwright, supra note id. at process, see cf. curiam), 1979) (per may improperly influ they still (1980). 66 L.Ed.2d Black ence the defendant’s decision. Cf. F.2d at Wainwright, supra, 608 man v. case, In the instant the trial effect”); Blackledge (“chilling negatively sponte commented sua Perry, 417 U.S. sug strength of the 40 L.Ed.2d plea misdemeanor be an gested a would disposition predicted that appropriate B. light sentence, incar very without however, remains, question ceration, result from a conviction. remedy improper judicial appropriate general type commentary consti This participation plea negotiations. Rule negotiation participation plea tutes proscribed 11(e). prescribes practice a rule process as Rule Some comments, courts; strangely, embody it does a constitutional what these reducing the are satisfied seem7 to have the effect of limitation. On record we guilty plea, desire to has failed to show that defendant’s enter a that German voluntary informed especially ability where the first had been to reach a verdict, objectively prejudiced.8 been unable to reach decision has Adams, supra, apparent authority has lent his 634 F.2d at nature of knowledge pros prophylactic court stressed view that pects acquittal good. By con and held defendants whose were Rule trast, pleas are taken in of this participation guilty most Rule cases violation replead allowed without protecting with the defendant rule should be to concerned tacitly recognized prior government correctly in case The that the Con- dard was also ply procedural these protections. of More judge satisfy the defendant’s con- would importantly, in the instant case there is no cerns, “provide important would an any objective deception, indication of protection against par- judicial measure judge’s whether conscious not. plea ticipation discussions.” Id. at 842. commentary on the evidence was sufficient proper remedy protect The selection a noncommittal, ly vague, and brief as to concern, thus, against merges this core into reasonable, preclude unscrutinized reliance. question whether the defendant has type That this of assessment concerns a exercising his factors, penalized been sixth per set of limited external not right Although amendment trial. power judge, sonal action within the contemplated remedy has case law should also have been taken into account (The resentencing by judge, different attorney. defendant and his 11(h) approximately error of Rule court recessed for 55 min harmless standard remarks.) Although scope utes after these the would limit the review to those question pretations. interpreta- if it United 9. Even were a close Hebble v. tion, judge the issue is resolved in favor "equally possible” there two whenever inter- Cir.1979). imposed only possible way of show judge cases in which the has vindictiveness, harsher sentence out of see require would an infer vindictiveness Blackburn, supra, 646 F.2d at Frank v. discrepancy ence from the between punishment of remorse or as for a lack pretrial judge’s statements and the actual as demonstrated the decision judge sentence and the fact that the had plead guilty, achieves the effectively through hearing an earlier the same sat Hebble, supra note same result. See mere case that ended a mistrial. But the 486; States, 255 A.2d at Miler v. United increase does not show fact of a sentence (D.C.1969); A.2d United States Blackburn, Frank v. su vindictiveness. Stockwell, (9th Cir.), F.2d (33 pra, year 646 F.2d at 885 sentence imposed year promised sentence after (1973) (sentencing power can plea). carrot, stick, used as a as a be Because German has failed to show remorse). respect post-conviction all relevant information evidence Therefore, the same standards and case second trial identical to the evidence employed can to determine both the law be mistrial, introduced at the the court must inquiry ques and the constitutional Rule assume that the sentence was based on the improperly tion whether German has been judge’s appraisal of the “more accurate penalized exercising sixth amend his hearing the full disclo- right circumstances after by jury. ment to a trial Id.; sure of facts at trial.” claim, To succeed on this a defend Cunningham, States affirmatively ant must demonstrate “a rea (6th Cir.1976). Here, although the sonable likelihood of vindictiveness”10 basically second trial was rerun part judge.11 of the trial Frank v. trial, government’s at the first evidence Blackburn, 886; supra, 646 F.2d at testify German did not at the second trial. Gaughan, supra also Damiano v. note importantly, previ- Most had not 770 F.2d at 3. There is no such direct an sen- ously been forced choose actual Indeed, evidence the instant case. impose tence to on German.12 Nor had the judge’s pretrial statements seem to would judge heard the allocution encouraging have the effect the defend urging presen- incarceration or seen the proceed ant to trial. The further report. Admittedly, re- tence willingness his try indicated the case sentencing suggest impa- some marks at interesting he when called “far more had insisted on tience with the fact German drug dealing.” than the usual oth Absent circumstances, lengthy trial and reveal his mis- a second er these are en statements pretrial state- accepted titled to taken recollection of on their face. See too, Blackburn, (5th respects, the re- Frank v. 605 F.2d ments.13 some hearing prior sentencing Dictionary 10. that he had stated Webster’s Third New International type defines "vindictiveness" in terms of a the crime was not the of offense trial disposition revenge; require to seek the intent to cause note incarceration. See infra anguish or hurt. sentencing, re- 13.At when German’s counsel Stockwell, 11. In judge’s pretrial remark that ferred to the court an infer- to rebut trafficking type was not the of offense which punished. ence the defendant been incarceration, require re- however, distinguishable, The case “No, sponded: What I that is not what I said. judge spelled Stockwell showed that the had out he I would not be offended if said was that clear, specific sentencing consequences that plea accepted accepted Government of —the attach to the defendant’s either decision Misdemeanors; go ahead—or three Misde- two trial, plead guilty go or to to and had then your that and meanors. But client declined consistently plan. acted with the identified length at and that the matter be tried insisted judge predicted only the instant the that the offense to hear all the details of allowed me sentencing might be mild. judge also commented that a second time.” The thought delayed judge had the retrial previously he German 12. That the had not come to and, denying grips prolong German’s impose the inevitable in with the sentence to on German is releasing on bond the motion to reconsider him further indicated the denial at approach marks judi- Supp.), “void, an area of forbidden illegal and unconstitution Hebble, cial supra motivation. See note al” the Secretary of Council of (quoting at 486 Scott v. United the District of Columbia not accurately did U.S.App.D.C. “verify,” signature, or attach a to the docu (1969)). mentation of vote count at readings bill, did not verify also judge That trial reassessed his evalu reading at all until final reading. ation of seriousness of the crimes is .the l-229(a) (1986 Supp.) D.C.Code requires § nonetheless clear from the record. The proposed that a act publicly, be read twice judge sentencing at hearing referred substantially form, in the same with at First,-he three emphasized circumstances. least days intervening thirteen between boast, tape, on German’s that he had been reading. each German not does contest dealing in property years stolen for fifteen reading that requirements were in fact willing that he was to receive such satisfied; only challenges he the lack of Second, property any at time. the judge verification, citing any without authority. appeared apprecia to have come to fuller argument Thus his borders on the friv fencing tion of extent to facili simply olous. The D.C. Council has im tates other criminal judge activities. posed Secretary duty its to maintain noted, previously denying a motion up-to-date records, accurate and see id. pending for reconsideration of bond sen 441(a), 445, (1981 subsec. tence, & §§ since testify German did not Supp.), thereby and has trial, neither ex second evidence pressly directed a means of formal verifica “virtually left uncontradicted.”14 tion nór Third, precondition established a judge prior, considered Germans’ passage public authoritative of burglary. federal laws. Finally, conviction for Cf. judge Pillis v. District thought indicated he had Columbia Hackers’ “long Appeal Board, License and hard” about 366 A.2d 1094 the sentence. View (D.C.1976) circumstances, (typographical does recogni all the and in error not af enactment), validity fect tion of sys the substantial trust that our justice tem places of criminal (1977). Moreover,

judge if a every to make even verification reasonable effort to requirement requisite hardly existed it could neutrality, maintain the we have con protect potential been clude intended violators that German has failed to meet his law, therefore, any breach could burden to show that the trial should challenged by pretrial statements, be a citizen German’s be limited how position. District ever See Dimond v. Co unfortunate. Frank v. Blackb Cf. lumbia, 111, 122-23, urn, (“Once U.S.App.D.C. 646 F.2d at (1986) trial, go (litigant must defendant elects to all bets are affected). directly off.”). adversely Validity III. Statute.

A. B. first next contends the traf German contends traf Statute, (1986 ficking ficking unconstitutionally D.C.Code 22-3831 statute15 both § sentencing, pending Trafficking property. observed in stolen that im- section, position “significant (a) purposes of a term confinement is For the of this the term unlikely.” “traffics” means: sell, transfer, distribute, (1) pledge, To dis- commented, 14. The trial in connection pense, dispose property or otherwise requested entrap- with German’s ment, instruction on person anything another as consideration for B, Part V that evidence of "[t]he infra value; entrapment very trial], strong in the [first receive, buy, possess, or obtain To con- German, but most of came from Mr. who any property trol of with intent do very cavalierly hap- as to described it what paragraph acts set of this subsec- forth pened.” tion. provides: § 15. D.C.Code 22-3831

605 vagueness simply means vague. the overbreadth overbroad and On (b), claim, one he contends that al- not attach where responsibility subsection should property is not lowing conviction reasonably when understand that could not stolen, actually easily include within could Id. contemplated conduct proscribed.” legitimate any of activities its ambit sup- 32-33, (emphasis 83 at 597-98 at S.Ct. pawn junk shop. Because the traffick- or City Papachristou v. plied); of ing implicate not first amend- statute does Jacksonville, 156, 162, 92 S.Ct. 405 U.S. City concerns, however, Council ment (“fails 839, (1972) 843, 110 31 L.Ed.2d Vincent, Taxpayers v. Angeles Los of intelligence fair ordinary give person of 798, 2118, 2125, 80 466 104 U.S. S.Ct. is for- contemplated conduct that his notice (1984), German does not have L.Ed.2d 772 States statute”); by the bidden rights interests standing to assert Harriss, 612, 617, 74 S.Ct. 347 U.S. might unconstitu- parties of who third (1954). The doctrine 98 L.Ed. 989 See New tionally by the affected statute. con- guarantees know what that citizens Ferber, 747, 767-68, York v. 458 U.S. they may en- proscribed and that duct is 3348, 3359-60, 73 L.Ed.2d S.Ct. fear of gage in innocent conduct without Oklahoma, 601, 613, 413 U.S. Broadrick v. punishment.18 (1973).16 37 L.Ed.2d S.Ct. trafficking clearly proscribes The statute standing Similarly, to chal German has person if knows purchase property lenge grounds on the that it is the statute it has reason to know that been or has unconstitutionally vague,17 see Lanzetta v. not in fact property if the stolen even 618, 83 Jersey, New 306 U.S. 59 S.Ct. 22-3831(b). challenge A to this stolen. § (1939) meaning (guessing L.Ed. grounds statute can be made him. “gang”), only applies as it word engage in innocent might citizens who Mazurie, subject unreason- property are sales (1975) L.Ed.2d 706 arrest, prosecution, and con- risks of able (“vagueness challenges to statutes that do goods” Arguably “nonstolen viction. not First Amendment freedoms involve uncertainty. amendment increases light in the facts of must be examined clear, history makes it how- legislative The hand”); see also United States the case at Products, ever, property was included that nonstolen Dairy v. National investigá- police undercover to facilitate “Void (b) void-for-vagueness doc person concerns of the A commits the offense of traffick- 18. The if, where, sepa- property the instant in stolen on 2 or more as in trine two-fold occasions, person upon challenged rate property, knowing traffics stolen intrude first law does not having or reason to believe Supreme has Court amendment values. property has been stolen. written: (c) prosecution It shall not be a defense to a important Vague values. offend several laws property under this section that the was not in First, man is free to we assume that stolen, engages fact if the accused in conduct conduct, lawful and unlawful steer between would constitute crime if the at- ordinary give person insist that laws we accused tendant circumstances were as the intelligence opportunity to know a reasonable them to be. believed prohibited, act accord- so that he what is (d) trafficking Any person sto- convicted of may trap ingly. Vague the innocent laws property more than len shall be fined not Second, warning. providing if arbi- fair $10,000 imprisoned than 10 discriminatory trary is to be enforcement years, or both. explicit provide stan- prevented, laws must Tomas, generally So.2d 1142 State v. 16. vague apply A law who them. dards for those (Fla.1979) trafficking (upholding Florida’s delegates policy matters impermissibly basic goods against chal overbreadth stolen lenge). statute judges, juries policemen, for resolution basis, subjective hoc and on an ad arbitrary dangers and discrimi- attendant County Court cite to natory application. 140, 154-55, Allen, Ulster v. Rockford, City 108- Grayned is unre- challenge standing sponsive to the issue of (citations omitted). vagueness grounds. statute on

tions professional Report fences. See In any event, German’s activities the Committee on Judiciary on Bill No. squarely fall unambiguously and within 4-133, the District of Columbia Theft and terms of finding 22-3831. The of an § 1982, (D.C. White Collar Crime Act of at 16 intent to deal in goods stolen is supported 1, 1982). fact, June the actual status of by the evidence: Officer Archer made clear property little, stolen anything, does if repeated statements to German about uncertainty increase the facing pro- specific, origin goods, stolen spective purchaser. key The element of German made several statements the crime is “reason to know” that the would unquestioning demonstrate both an goods are If purchaser stolen. has no acceptance of these remarks and an acu reason, such then it predictive makes little men only that would come from substantial difference goods whether the are fact experience handling property. stolen police given stolen. The greater capa- statute, bilities but the sto- C. len/nonstolen distinction in does not itself give them, judicial system, or the greater (c) challenges German subsection abilities to scope define the of the offense ground statute on the that it unconsti applied.19 as it is tutionally deprived him of the defense of 20-3831(c). impossibility.20 The .§ statute, then, analyzed must be no support constitutional he cites in law differently than a statute without the non- process this claim are the due clause of the goods provision. stolen The criminality of fifth amendment Winship, and In re one’s sufficiently predictable behavior is 358, 90 S.Ct. 25 L.Ed.2d 368 under the “reason to know” standard be (1970). Winship irrelevant, however, be specific cause of the requirement, intent cause there is legis no contention that the see Village Flip Estates v. of Hoffman lature has redefined the crime of side, traffick Estates, Inc., Hoffman ing in order procedural require to avoid a ment. authority21 German cites no (scienter requirement mitigates proposition legal impos or factual vagueness), and necessity pur for the sibility constitutionally protect defense is engage chaser to in some overt act indicat ed, and we have found none. A substan satisfy such intent in order quan 22-3831(c) process challenge tive due proof tum of for conviction. § arbitrary capricious readily as need to elicit such an act does not sanction promote rationally fail the statute is arbitrary related erratic or arrests. legitimate interest, Lawson, governmental to a See Kolender v. (1983). Optical, Lee Williamson v. Moreover, jury’s 99 L.Ed. inquiry into knowl and the edge legislative quite typical history criminal intent is the D.C. reveals crimes, many drug other posses such as in a rational Council acted fashion to allevi attempted sion or problems curbing solicitation. ate the associated with (recognizing legal We do impossibility 19. not address whether the law would but not factual broker, apply exchanges pawn defense). to certain with a as a or between friends where there is a false state- goods ment that are stolen. 21.Although the Chair of the D.C. Council’s Judi- referred, ciary Committee in extended remarks Legal impossibility occurs when a defend- statute, July to the Florida actions, causes, ant’s or actions a defendant language in the District of Columbia and Flor- fully even if carried out would not constitute a ida statutes is not erro- the same. also Cohen, (3d crime. United States v. 274 F. 596 neously impression creates the that Florida and Cir.1921); Hageman, State v. 307 N.C. examples. the District of Columbia are isolated impossibility S.E.2d 433 Factual occurs Rios, (Fla. See State v. So.2d objective pro- when the of the defendant App.) (listing jurisdictions rejected law, scribed have but a circumstance defense), goods prevents nonstolen unknown to the actor bringing rev. him or her from (Fla. 1982). objective. about that See United States So.2d 1199 Oviedo, (5th Cir.1976) separate from the initial Drew de- fencing operations.22 Report of the cretion terminations,” the concludes that the Judiciary Bill No. court Committee on the on outweigh preju- 4-133, value probative Theft and will The District of Columbia Campbell (D.C. 1982, impact on the defendant. at 16 dicial White Collar Crime Act States, 428, (D.C. 430 v. United 1, 1982). 450 A.2d Finally, the fact that June 1982). punished an at- same acts could be under any

tempt completely statute23 eliminates exceptions, There are other however. argument left German. constitutional other criminal Evidence of a defendant’s activity “is admissible when relevant Admissibility Evidence. IV. explain the immediate circumstances sur- A. charged rounding offense and when its outweighs prejudicial its probative er- value contends that the trial court States, 440 A.2d effect.” Green v. United roneously government, in its allowed 1005, (D.C.1982) (emphasis supplied) case-in-chief, testimony of 1007 to introduce the States, Tabron v. United Melson, (citing 410 A.2d George certain who described Derrington 209, (D.C.1979)); illegal pur- 214 suggest events States, 1314, Accord- v. United 488 A.2d 1337-38 stamps by chase of food German. States, v. (D.C.1985); 468 Toliver United German, testimony was inadmis- ing to this rationale behind acts. A.2d 958 evidence of other crimes or bad sible government exception is that one crime inadmissible “[E]vidence opportunity should not be denied crime, prove disposition to commit from “inti- evidence of events that are introduce infer that which the [trier fact] charged mately entangled charged/’ defendant committed the crime Toliver, supra, 468 A.2d at 960. conduct.” States, U.S.App.D.C. Drew v. United 118 11, 15, 85, (1964) (footnote separate exceptions set of arises when 89 A 331 that can be omitted; original). Although defendant raises defense emphasis in e.g., discretion, crimes” evidence. with “other we review for abuse rebutted invoking of en example, the defense Gates v. United 481 A.2d 123 For denied, government permit cert. (D.C.1984), trapment 105 will Unit predisposition. evidence of introduce Moore, U.S.App.D.C. ed States v. “presume prejudice and exclude court must Drew, (permitting crimes,” of other evidence 15-16, prior girlfriend testify about defendant’s U.S.App.D.C. at 331 F.2d at Tyson, sales); United States drug “comes under unless the evidence 233, 236, 470 F.2d exceptions” U.S.App.D.C. recognized one or well (evidence curiam) prior con legitimate evidentiary pur (per reflect a drug possession), motive, intent, viction for pose, such as to show identi 36 L.Ed.2d plan, or ty, purpose a common scheme or rely (1973). who chooses The defendant Willcher mistake or accident. absence of “cannot com (D.C. entrapment defense on an v. United searching appropriate and in plain of an 1979). the other crimes evi Even when predisposi his own conduct excep quiry into one or more of the dence satisfied Russell, United States tions, however, must exclude tion....” the trial court 423, 429, unless, of “dis- U.S. in an exercise the evidence efforts, id., obvious, police and the must nec- important forcement has an 22. The goods. goods "stolen” curbing essarily that have lost their transactions in stolen use interest in Indeed, strong particularly due to the interest status. engage creates for individuals to the incentive it easily Trafficking en- are not in theft. forced, however, laws (1981) (attempts to com- § 23. D.C.Code necessary because all of the Indeed, crime). government argues that mit arrange- engaged parties a consensual (c) incorporated effectively the of- subsection Understanding Heymann, Criminal ment. trafficking attempted 22-3831. § within fense of Legis. Investigations, 22 HarvJ. Thus, operations en- are vital to undercover (1973) (quoting entrapment Sorrells v. chief before the defense actually been raised. The trial thus (1932)). By 77 L.Ed. 413 infer- could not have known that the evidence ence, circumstances, there will be rare necessary. have been Because the example where the evidence is cumula- raising mere entrapment defense is tive, where the trial court should consider justify sufficient to the introduction of the excluding grounds such evidence on the evidence, however, this court can confident- prejudicial its impact outweighs its ly subsequent look to events and find that probative value. presentation, this order of however vital in entrapment exception provides cases, States, most see Graves v. United the clearest resolution24 of this issue.25 1136, (D.C.1986) (serious 515 A.2d clearly expressed the intent question whether evidence ever admissible raise defense opening the at trial in his defense), unless to rebut a not re- jury, statement to the and in fact did so. quired Moreover, any here. assumed error The issue jury.26 was sent to the clearly harmless. See Kotteakos v. government has little choice but intro States, United duce rebuttal evidence and cannot be limit (1946); Moore, 90 L.Ed. 1557 supra, 235 general ed to the standards of admissibili U.S.App.D.C. at 732 F.2d at 986-87. ty. It is not even crucial that the acts be Second, deprived op- German was proved by preponderance a of the evidence portunity limiting to obtain a instruction suspicion is all “reasonable that is that the evidence only was to be used predisposition to establish suffi entrapment Although rebut the ciently to defense. entrapment.” defeat a claim of Tyson, supra, U.S.App.D.C. generally this uphold at 235 n. court will an eviden- (citing 470 F.2d at 383 n. 3 Childs v. tiary ruling grounds available, if any U.S.App.D.C. United argument points this a possibili- to specific 267 F.2d 359 ty prejudice that is to the traceable 3 L.Ed.2d 680 judge’s admission of the evidence on alter- (1959)). grounds, preclud- native which would have limiting ed instruction. this how- possible objections

Two additional ever, danger the main admission of this the evidence evidence on these —use First, grounds disposition remain. infer criminal in fact evidence was —was by limiting introduced case-in- addressed instruction.27 Fur- 359, 365-66, testimony helps explain U.S.App.D.C. 24. While Melson’s 303 F.2d origins investigation, (D.C.Cir.1962). Although the evidence of the the evi- stamp really strong food sales Ms. Weems is not an dence in this case was not due to the intimately testify, immediate circumstance that is tangled en- failure of German to it was still suffi- charged with entrapment jury, criminal conduct. cient to send the issue to the as Compare Derrington, supra, request. A.2d at 1337-38 was done at German’s (statements planning burglary). made while help The events are unrelated and do not ex- part general jury, 27.As instructions to the plain allegedly the acts that constituted the stated: charged type gestae crime. Because this of res Now, prior if evidence of of the de- conduct highly prejudicial, evidence its use should be criminal, may fendant which is introduced narrowly circumscribed. predisposition willingness to show his or offense, alleged you may commit consider entrapment excep- 25. The trial stated only your such evidence in connection ground admitting tion was an alternative predisposi- determinations of the defendants’ testimony, but our review of the record demon- tion or readiness to commit the offense. It is placed primary strates that he reliance on this not evidence that Mr. German or Mr. Henson actually theory, stating it was the “obvious” basis on they committed crimes for which the evidence was admissible. See also moreover, And, fact, are now on trial. if note infra. fact, may it is a that the defendant have com- similar, prior 26. There is some case law that mitted character indication offenses only require you evidence be introduced when doesn’t itself to conclude that a rebuttal entrap- predisposition there is sufficient to submit the evidence readiness of- commit jury. they charged. ment issue to the are now United fense with which Hansford ther, depended it vanee of was never instructed that the income tax returns testimony establishing per could consider the other as a foundation that crimes entrap- as evidence intent. Because the sons of German’s wealth have reduced strong engage profit ment instructions in crime for contained admoni- motivation to they tions testimony accordingly was not evidence and that commit fewer committed, assumed, charged proba- if offense was such crimes. Even juror generalization pales in reasonable would have concluded that tiveness of this com evidence, permissibly parison case-specific the evidence could be used to more predisposition, specific easily generalization to show and not the which could rebut the Moreover, presumed type element of intent.28 Jurors are an individual case. likely follow instructions. confuse the Hairston v. United evidence Oxman, jury, States cf. (3d Cir.1984) (affirming exclu B. sion of of sub evidence of financial status sidiary company), vacated on other German also claims that the trial court grounds sub introduction, refusing erred in nom. allow the Pflau mer, 3550, 87 accountant, through his of his tax returns leave the trial and years for the 1981 and He 1982. claims judge with no over the effective control that these returns would have shown him conduct of the trial. We find no abuse good condition, to be financial which discretion, much less harmful error. engage would reduce his motive to in crime profit. C. Even a criminal “an evi evidentiary German’s final claim of error ruling dentiary a trial on the proof is that there was insufficient of the relevancy particular highly of a item ais custody” “chain of to allow the introduc- discretionary upset decision which will be (and tape recording tion into of a evidence appeal only upon showing ‘grave thereof) ” copy transcript and a written States, abuse.’ Mitchell v. United a conversation between himself and under- (D.C.1979). A.2d always It is support cover Detective Archer. of his permissible to exclude irrelevant insuffi authenticity contention that the evidence of ciently probative evidence, see Geders v. convincing, not clear he relies on was States, United markings original tape, the lack of on the 1330, 1334, McClain transcript copy the fact that the of a of the States, (D.C. v. United 460 A.2d tape years tape prepared was two after the 1983) evidence). (excluding impeachment made, and the fact that an unauthen- was rights only Constitutional are violated copy tape played to the ticated the was proffered the when evidence is direct and jury. material, as, example, “the when State arbitrarily right clearly that put This court has stated [denies] tape recordings physically stand a witness who was and the admission of at trial is mentally capable testifying committed to the sound discretion to events a matter observed, personally judge. Springer that he v. United and whose of the (D.C.1978). testimony would have 388 A.2d been relevant simply Washington material to the defense.” trial court must determine “whether Texas, 14, 23, 1920, 1925, has met its burden (1967). Here, convincing showing by clear and evi the rele- that, J., ("In 943) (Frankfurter, significant concurring) possibility review 28. There is also not a ct instructions, cases, prior closing jury particularly important to the it is used have concluded the evidence could be appellate courts to relive the whole trial to show intent. This court must form its own imaginatively episodes to extract from impressions on the basis of the review- questions of evidence and in isolation abstract entire record. See Johnson v. United procedure."). 549, 555, 87 L.Ed. 704 dence—which be direct or circumstan and accurately represented the conversa- authentic, tapes accurate, tial—that the tion he had February German on and trustworthy.” up Id. It is to the 1983. The trial court found that there was defendant to introduce convincing evidence that clear and evidence to establish handling routine admissibility evidence tapes.29 of both government did suitably preserve transcript The admission of the original. Typically, the defendants must copy problematic somewhat more be rebut this presumption by making “a mini cause it is duplicate. pre not a Archer showing will, mal faith, of ill bad other evil pared transcript in 1985 and testified motivation, or some tamper evidence of represented a true and accurate ing.” Lane, U.S.App. States v. copy original conversation. This tes D.C. timony require satisfied authentication (quoting United States v. Daughtry, 502 ment, and, law, under District of Columbia (5th Cir.1974)); the “admission of accurate transcripts as Ford v. United listening an aid in tape recordings similarly committed to dis

Beyond implying faith, cretion.” Springer, supra, bad German of 388 A.2d at Here, fered no evidence suggest whatsoever trial court instructed jury, original tape before it heard recording or read was altered or the. transcript of Archer, tape, tape misidentified. Officer who was fit evidence, body device, transcript ted with a not the recording testified jurors’ was admitted for the that he could convenience not be sure from its external listening tape; transcripts appearances were that an tape identified was the retrieved from the tape after the original, but the record tape shows that the played. Moreover, the introduction into ev according was handled routine and reli tape copy idence of the would nonetheless police procedures, able taping as was the render the transcript admission of the copy, that there was a continuous chain harmless error. German’s counsel admit custody, nothing likely to cause listening tape ted after out of the an error occurred. police Two other offi jury’s presence the transcript was “a cers tape testified that the original, was the pretty good representation of what’s on the and Archer identified the contents of the tape.”30 tape. government “need not rule out every conceivable chance that somehow the Jury V. Instructions. identity or character of the evidence under A. Lane, change.” went supra, U.S.App.

D.C. at impor at 962. More challenges the refusal of the tantly, copy Archer fairly give testified that the requested “missing court to . 10, 1983, 29. Defense February occurring counsel also invoked the best evi- 4 and before the separate ground objection, dence rule as a February type search on 1983. This of com- pursued appeal. but has not argument this claim on This mentary implicate does not the concerns of the easily lose under the modem would goods fourth amendment: the use of the version of the best evidence rule. Fed.R.Evid. testimony completely independent thereto was 1003; States, Myrick (5th v. United 332 F.2d 279 Macon, Maryland of the search and seizure. Cir.1964) Moreover, (citing 1732). 28 U.S.C. § 463, 468, 2778, 2781, 472 U.S. original tape produced was at trial and iden- (1985) (exclusionary rule does not police. tified reach backward to taint information in official any illegality) (quoting hands before 30. German also maintains that there was an Crews, 463, 475, States v. allegedly unconstitutional search and seizure of 1244, 1252, J., (1980) (Brennan, Maryland stolen items from his residence. Stevens, JJ.)). joined by Accordingly, Stewart & These items were not introduced at trial and the constitutionality government of the search is irrelevant made no reference to their recov- ery. proceedings, challenges particularly German nonetheless to the instant criminal the exten- goods light potential sive references themselves of the fact that the reme- witness, Archer, government themselves, Officer dy, goods who had exclusion would be operation. been involved in the undercover meaningless. testimony January Archer’s related to events on concerning superior testimony already given witness” instruction to other witness, Anderson, government Miles, Russell on the matter.” A.2d Department Agriculture employee who nothing 658. German offers but rank present trip on the first upon unspecified speculation undercover German’s store. Anderson had been gauge might be made the contribution that placed in the federal Witness Protection testimony; defense by Anderson’s at trial Program in December later but counsel admitted he did not know what voluntarily withdrew from it. He had re- testimony be. Anderson’s Washington, repeated turned to but at- testimony may have been Anderson’s well Service, tempts by police, the Secret German, this court must but favorable and the locate U.S. Marshal’s Service to minimum, require, at a that some reason- him were unsuccessful. The trial able, suspicion be concrete basis for this found that Anderson was unavailable to supported. articulated and “Unless it can government both the and the defense. question that the witness in be established requested German nonetheless an instruc- provide new or additional evidence produce tion that the failure to Anderson credible, manifestly or would we be negative against create a inference by using risk considerable unfairness government testimony as to what missing ad- witness to create instruction might have been. Cooper, supra, verse evidence.” 415 A.2d credi- at 534. The trial reviewed the party missing who seeks a bility testimony by other witness instruction must first establish: govern- and Anderson’s role as a witnesses “peculiarly that the witness is available” to agent, ment and concluded that his testimo- party against whom the inference is ny would be cumulative and that there made; sought to that the wit believing “no factual basis Mr. testimony likely ness’ would be to elucidate unfavorably testify Anderson would the transaction at issue. Miles v. United government....” States, (D.C.1984); 483 A.2d see also Graves v. United Still, prongs even are satis- where both L.Ed. 1021 fied, retains the discretion to Thomas v. United 447 A.2d Miles, supra, instruction. refuse the (D.C.1982); Cooper v. United 483 A.2d at 658. We hold the trial court Because properly acted and did not abuse his discre- Anderson cannot be located and cannot be States, 460 tion. See v. United Leftwich brought court, no factual conclusion can A.2d produce be drawn from the failure to him. Thomas, supra, 447 A.2d at 57. German B. gives suspect this court no reason31 to the validity judge’s of the trial determination Finally, German contends that despite that Anderson is rea unavailable by refusing supplement the court erred sonable, good govern faith the efforts jury “Red Book” instruction on standard him, ment to locate and we find substantial entrapment. Jury Criminal Instruc- find support evidence record to that Columbia, District of No. 5.05 tions for the ing. (3d 1978). the fol- requested ed. He that lowing instruction be added:

Furthermore, German cannot show that police may invite testimony Anderson’s the Before authorities would “elucidate any particular in criminal requesting party engage must one to transaction.” behavior, testimony they must have reasonable sus- show that “the witness’ case, engaging he is in important picion to the to believe that be defendant’s States, noncumulative, be or would otherwise be such conduct. Childs United couple cursory attempts merely as in- means of "a 31. Defense counsel characterized sufficient, in view the resources available to location.” one visit to the last known it, efforts to locate Anderson U.S.App.D.C. 342], 267 F.2d proper 619 must reach [105 a determination of the legal standards, however, because even if a you If beyond are not convinced a rea- lack of suspicion reasonable constituted a police case, sonable doubt that the in this Childs, ground verdict, for a directed 4,1983, January on suspi- reasonable U.S.App.D.C. at 267 F.2d cion to engaged believe Mr. German was jury would be entitled to deter- trafficking (or in property stolen a mine suspicion the issue of if reasonable offense), you similar then must find thé establishing were an alternative means of guilty. defendant not an entrapment defense. judge requested The trial jury denied the government holdWe that need ground instruction that the issue suspicion not have reasonable of similar legal was a matter32 him to determine activity prior conducting in an allowing go before the issue jury, vestigation entrapment order to avoid an already that he had decided that issue government.33 favor of the anticipated The court defense.34 This view has been "Entrapment as a probable matter of law" can describe sufficient to show there is cause at predisposi a situation in which "the evidence of point this committed, to believe that an offense has been per tion was as a matter of law to insufficient and that the involved defendant jury prosecution to find that mit has committing it. proved predisposition ás a matter of fact.” accordingly, probable And if cause is needed (2d Myers, 836 n. 8 event, this the matters are not certain Cir.1982), 461 U.S. says because what Court de- [Childs ] (1983). "Entrapment aas pends, degree at least to some on the facts of possibility matter of law” could also réfer to the the case. I don’t know what facts are on that, police sufficiently where conduct has been case, [only] conclusory since we have outrageous, process principles might pre due report Appeals of the [D.C. Court of Circuit] though vent ’ conviction even the defendant was Nonetheless, [per] curiam. I would believe predisposed Hampton to commit the crime. probable there is sufficient to com- cause 484, 491, investigation mence the in this case.... The (1976) (Powell, J„ motion is denied. Blackmun, J., joined by concurring). See Wil liams v. United (D.C.1975). government alternatively argued, 34.The errone In the instant a review of the ously, entitled to a German was not record and the trial reference to German’s raised, entrapment. instruction on The defense Childs, supra, cited case of leaves no doubt that argument entrapped that German was law, addressing, was as a matter January presented apparently two issue whether the had a reasonable credible witnesses who testified that German suspicion if such were as an alternative presented story" with a "sob vendor entrapment. According element of the defense of selling gifts pay Christmas in order to rent understanding, to his own ruled that Moreover, thereby avoid eviction. the testi police suspicion. did have reasonable mony properly of the character witness can negating pro construed as evidence German’s 33. The trial stated: pensity illegal purchases property. to make deference, With all it would seem to me See Sorrells v. United purposes deciding go whether to forward ("Control 77 L.Ed. investigation, with an information ling question whether the defendant is a [is] misusing stamps, in defendant is words, food other person otherwise innocent whom the Govern taking lawfully illegally, them seeking punish alleged for an ment is offense cash, sufficiently seems to is me—and product activity which is the of the creative of suggestion taking close to the that he was also officials”); Montgomery its own see also v. Unit shouldn’t, property other that he to allow the 655, States, (D.C.1978) (general ed 660 police investigate further. establishing Second, standard for entitlement to instruc presented the evidence that was tion); U.S.App.D.C. Burkley, was, United States v. 192 Agriculture Department, gather, I 305-06, 294, 903, (1978), one, F.2d 591 914-15 cert. assuming it was the same as it was on the 966, 1516, denied, stand, case; 440 U.S. 99 S.Ct. 59 L.Ed.2d just this isn't one this is a citizen (when entrapment instruction should 782 police who came in unsolicited. He is not a given). ordinarily Entrapment is an issue urged informant. He was not to do this. He Jannotti, in, told, jury, voluntarily for the United States v. 673 F.2d presumably, came and he 578, denied, 1106, (3d Cir.), 457 Bowling 597 cert. U.S. Mr. the same information that he 2906, (1982), 102 S.Ct. 73 L.Ed.2d 1315 and the testified to on the stand. judge properly the issue I have no reason to believe otherwise. What submitted n stand, me, jury he case. testified it seems to is instánt

613 court, appeal. by an earlier of see taken German in this United decision 1108, 219, Abdallah, A.2d 222 1 Johnson v. 387 149 F.2d n. United States v. (D.C.1978) 724, (“Operation Sting”),35 (2nd Cir.), denied, cert. 326 U.S. 66 holdings (1945) (cited other 29, and is consistent with the of S.Ct. 90 L.Ed. 429 Rejection Childs, 343, courts.36 of the “reasonable sus- U.S.App.D.C. at supra, 105 picion” requirement is 620). consistent with subsequently 267 F.2d at As stated development entrapment focus and Appeals for the Dis the U.S. Court of Russell, In 411 doctrine. Circuit, stands for trict of Columbia Childs U.S. 93 S.Ct. 36 proposition suspicion that “reasonable Supreme L.Ed.2d 366 Court stat- predispo is all that is to establish entrap- the central concern ed that sufficiently en sition to defeat a claim of predispo- ment defense is “defendant’s trapment.” U.S.App. 152 Tyson, crime,” expressly sition to commit the 3, 3; at 235 n. 470 F.2d at 383 n. D.C. rejected argument that the focus is on U.S.App. Hunt v. 103 also United the conduct law enforcement officials. 309, curiam), (per D.C. 258 F.2d 161 435, pur- Id. at 93 S.Ct. at 1644. For the denied, 936, 326, 358 3 cert. 79 S.Ct. pose meting just punishment out (1959). Predisposition L.Ed.2d 308 can be acts, goal avoiding unfair proved by Burkley, other means. su See adequately inducement is satisfied without 34, 307, pra U.S.App.D.C. note 192 at 591 requiring suspicion reasonable in addition (citing F.2d at 991 United States v. Rodri predisposition. Hampton See United (1st Cir.1970), gues, 433 F.2d 760 cert. de 484, 1646, 425 U.S. 48 nied, 943, 950, L.Ed.2d (1976) (narrowing importance (1971)). entrapment de- conduct judgment Accordingly, the is affirmed. fense); 38, Jannotti, supra note (in 673 F.2d at absence of conduct Affirmed. investigation to the defend- offensive right process law, ant’s to due the con- PRYOR, Judge, concurring: Chief barred). is not

viction German makes no majority opinion. my I concur in the It is target.37 claim that he was a view, however, inquiry of the trial Childs, supra, German’s reliance on regarding disposi- possibility of a misplaced probable since it held “judicial does not tion case constitute noting required, cause is not that reason- bargain. participation” plea Accord- suspicion enough, and on able review ingly, respect. I find no error in that the denial of a directed did not have verdict to reach the issue whether reasonable sus-

picion independent requirement. an Childs,

Indeed in one of the cases cited in expressly rejected position

the court Swets, 989, (10th Burkley, supra U.S.App. Cir. note States v. 294, 303-04, banc), denied, 1977) (en cert. 434 U.S. 591 F.2d at the U.S. Court Appeals expressly ap the D.C. S.Ct. United Circuit cf. (2d Cir.), Myers, proved language cert. of the Red Book in States v. denied, 635 F.2d structions, argument 66 L.Ed.2d but has not faced this di (1980). rectly, although noting that other circuits have rejected States v. the contention. Kelly, U.S.App.D.C. 66 n. the instant also note that the evidence in 37.We convincingly 1471 n. clearly case demonstrates the suspicion of a reasonable that German existence regular illegal purchases engaged in store, See, through grocery e.g., Espinal, as the trial 757 F.2d (1st Cir.1985); Whiting, purported to decide a matter of law. United as States Cir.), (1st testimony George Melson alone would be issue, jury finding adequate support on this 609; Jannotti, supra had one been made. note 673 F.2d at 6. notes type does not stitution forbid a "moderate was that 11 "states a stan law. The view Rule plea courts, participation” negotiations. v. in Damiano necessarily a consti dard for federal not (1st Cir.1985) Gaughan, (judge 2 told Wainwright, v. inhibition.” Blackmon tutional mind). year he had 18-20 sentence in defendant Thus, quali supra, 184. “Rulell’sun 608 F.2d at proviso judicial inquiries protect can While this plea judicial prohibition of in involvement fied progress plea negotiations, into the it cannot every necessarily (cid:127)bargaining not will invalidate strength judicial excuse comments negotia judicial participation in the instance likely on convic- case and sentence to follow plea guilty in Frank v. of a state court.” tion Moreover, provides 11 tion. because Rule Blackburn, Generally, supra, 646 F.2d at 880. Constitution, protections broader than the pro plea negotiations participation in judicial constitutionality important to will be determine so matter when it is as a constitutional hibited proposed implicates remedy these if the involuntary. guilty plea great render a as to concerns. Cir.1977), 372, 373 (8th Wyrick, 563 F.2d Toler v. denied, , 435 U.S. 98 S.Ct. 55 analysis upon cert. "ob court’s must be based 7. This Peyton, F.2d upon Brown v. jective facts the defend L.Ed.2d 498 record rather than denied, Cir.1970), (4th were his cert. ant’s recital of what he now claims subjective impressions.” (1972). States mental Other Housewright, v. F.2d ex rel. Robinson acknowledge typically Rule 11 re- that courts (7th 1975). Cir. willingness guilty greater set aside quires a to resentencing. Compare pleas or to order determination, not of this we need 8. In view Adams, (applying prophy- supra, 634 F.2d at 830 judge actually influ- decide whether trial purposes would be when of rule lactic rule furthered) Super. German’s decision to stand trial. enced Blackburn, supra, Frank 11(h), on effective Ct.Crim.R. September which became (Rule procedure 11 is that a court F.2d at 880 from states that a deviation reversal). require automatic does not rights 11 "which does affect substantial Rule not disregarded.” error stan- shall be The harmless having to demonstrate prejudice. actual statement as to likely sentence more qualified The court stringent approach, problematic, because it have intruded however, by requiring not strict enforce plea negotiations, too far into the issue of ment whenever the Rule’s “core concerns” it is also in reasonable of the fact view Id.; are adequately addressed. actually had not reached the McCarthy v. United point deciding particular what sentence (actual impose Further, German. prejudice earlier, narrower commentary concluded with the statement 11); form of Rule Day that he had opinion no whether German (5th ton, Cir.1979) (en .banc) 604 F.2d 931 guilty ready proceed and was (core coercion, concerns include lack of trial. German understand the con- comprehension charge, and knowledge text of these remarks and the limited na- consequences), direct 445 ture of what the was saying. Noth- 63 L.Ed.2d 320 ing in the record indicates that the making anything more than a limited “[Ijmplicit Super.Ct.Crim.R. 11 is the prediction,9 specific per- rather than a requirement any guilty plea represent Compare Adams, promise. sonal supra, voluntary among a choice the alternative (“I at you sentence would open courses action to the defendant.” count”). years statement, four on one The Byrd, supra, A.2d .377 at 404. While the most, reasonably was a projection, based purpose underlying main pre Rule is to coercion, defendant, and not which left the guilty vent coerced pleas, similar concerns counsel, aid with the free to make a apply possibility decep of a well-informed, voluntary decision. See tively induced reject plea decision to a offer Byrd, at 404 (participation A.2d proceed to trial. North Carolina Cf. neutral). Pearce, list of Rule ll’s core concerns is (the process somewhat different when the defendant requires that a ap defendant be freed of pleaded guilty has in fact has re- prehension of retaliatory a motivation on ceived full trial. The Adams court stated part of sentencing judge). None “judge suggests who encour- theless, this concern carries somewhat less ages bargain may particular plea feel a significance right a trial personal agreement stake in the ... and jury, which was exercised instant may therefore resent the defendant who enjoy protected should status. rejects Id. at advice.” court complain The defendant less has cause that a concluded new unnec- when, fact, pano he has received the full resentencing essary but that before new

Case Details

Case Name: German v. United States

Court Name: District of Columbia Court of Appeals

Date Published: May 7, 1987

Citation: 525 A.2d 596

Docket Number: 85-1621

Court Abbreviation: D.C.