*3 Before WILLIAMS, MIKVA and Judges, Circuit and HUBERT L. WILL,* Senior Judge, District United States District Court for the Northern District of Illinois.
Opinion for the by filed Court Circuit Judge MIKVA.
Concurring opinion filed Senior Judge District WILL.
MIKVA, Judge: Circuit require These cases us to decide whether the district court’s denial of cross-examina- prosecution tion of a witness regarding an unrelated her, against indictment prejudice dismissed without eleven months trial, before appellants’ violated confronta- rights tion under the Sixth Amendment. We hold that the district ruling court’s this case error, was constitutional for the jury might reasonably have found that the government’s ability to reinstate the mur- * Sitting by designation pursuant 294(d). to 28 U.S.C. § bedroom, in a a woman adjacent In an with a her. the witness furnished der Pearl L. Pat- identified as nightgown, later in her favoring motive for bed, terson, a man was lying on a was Arsdall, v. Van Delaware testimony. See man, room, and another standing in the 1431, 1434- 678-80, 106 S.Ct. Greenwood, hiding appellant (1986). 89 L.Ed.2d .32 found a loaded caliber Police closet. in this case was witness Because the bed under mattress revolver appellant Anderson against key witness lying. Police Patterson was against prosecution’s and because small and found two Greenwood searched weak, we cannot otherwise Anderson *4 in Po- marijuana and cash. $75 of packets of court’s denial district that the conclude containing plastic bag a also seized lice a was, as the record on cross-examination purse and from Patterson’s “crack” cocaine doubt beyond a reasonable whole, harmless of a rock-like substance plastic container a re- Accordingly, must toas Anderson. person. Yanfield’s from remand and conviction Anderson’s verse appellant appellant Anderson stand- respect to With Police found a trial. for new the however, weight doorway of of other bedroom. Greenwood, the in the the ing us, officer, Investi- According arresting him convinces against other evidence DePasse, doubt, approxi- denial threw Anderson gator a reasonable partially- in mately was harmless cash behind $500 cross-examination of police ap- reject Greenwood’s door opened also when Because we bedroom him. however, officers, appeal, police his convictions on Other arguments proached. other any mon- throw down see not Anderson are affirmed. did recall. DePasse could not ey, or at least Howard, the main I. Officer testified initially picked officer,” must have “seizing V. and Kenneth Anderson Richard he testified that money, Howard up the but May on convicted were Greenwood money from any seized saw nor neither trial, of vari- eight-day jury an after Proulx, the crime Officer floor. bedroom charges. firearms and ous narcotics officer, that he neither stated search scene unlawful guilty of found was Greenwood the bed- money on photographed nor saw trafficking, of in aid of a firearm use drugs, money, or firearms No floor. room 924(c)(1);unlaw- 18 U.S.C. in of § violation Anderson, did who from recovered were five to distribute with intent possession ful or flee. resist arrest attempt to containing of mixture more a grams or base, of 21 U.S.C. in violation cocaine be- from the bedroom Police recovered unregis- 841(a); of an possession and co- “crack” grams § of Anderson hind firearm, U.S.C. in of 26 violation tered powder, caine, cocaine ounces of about four un- 5861(d). convicted of Anderson was scale, glass plate with § a triple-beam a intent to possession distribute lawful with a torch head powder, and of white traces containing a mixture grams or more of five The bed- a canister. use with butane for base, U.S.C. of 21 violation cocaine .32 caliber a loaded also contained room 841(a). appeal. Both clip to by a § holster attached revolver a bedframe; unregistered sawed-off an A. Facts parts, its down into shotgun, broken bag 1987, ammunition, a brown inside evening of November On the the floor contain- floor; bag on another officers, and pursuant Metropolitan Police D.C. almost guns, $200 ing both warrant, ammunition forcibly entered to a search marijuana. of N.E., cash, Street, and a small amount Jay 201 at Apartment seized, from the lock on also several Police police found Washington, D.C. The door, keys in set of a the bedroom apartment. On inside two-story people inside and, the bedroom Yanfield, key from woman, a black floor, Kim J. the second appellant itself, Green- photograph entering the bath- as she stopped notebook,. calculator, green wood, a small behind trying to the door close room and containing appellant a wallet powder Greenwood’s and how produce is used to photos, license and driver’s some and a tax crack quanti- cocaine. He testified that the return and other bearing documents Van- ty drugs, weapons, parapherna- name. field’s lia, notebook, notations and the apartment cash found in the were inconsist- Anderson, Greenwood, Police arrested use, personal ent with but were typical Vanfield, Patterson; persons and four house,” items found in a place “crack searched, interviewed, were downstairs crack processed, sold, where cocaine is released. No narcotics were found or prepared for distribution. kitchen, table, from the seized din- kitchen room, ing dining room table. Vanfield pled guilty simple Patterson later Tanya C. Barnes’ Testimony
possession substance, of a controlled in vio- Barnes, Tanya one persons lation of 18 U.S.C. 844. § present apartment in the during the No- raid, vember 19 testified prosecu- for the B. Testimony Prosecution *5 tion over objection defense counsel’s that Leadmon, Detective Lorren one of the Barnes’ given name was not in govern- the participated officers who in the execution ment’s pretrial notice of witnesses. warrant, of the search testified that he had Barnes, testifying grant under a of com- seen Greenwood and Jay Vanfield in the plete transactional and use immunity, stat- apartment days Street two and earlier that that, ed day raid, the on of the she saw gave Greenwood him a tour apart- of the Anderson and Greenwood carrying bags of ment. Leadmon stated that Greenwood some kind apartment into the and that she keys used set of a in a key black case to saw carry package Greenwood of cocaine unlock the door of the in which bedroom upstairs. that, She recalled day, later that drugs, guns, the and paraphernalia Greenwood, she saw Anderson, and then in were later found. Leadmon identified the (or the processing kitchen “cooking”) the keys key and case seized from the bedroom powder crack, cocaine although into she during the November 19 search as those falling admitted to asleep when Anderson that he saw Greenwood use on November cooking the cocaine. She also testified 17. Leadmon also asserted on that two that, police when the evening, arrived that occasions, subsequent in December 1987 there was crack in crack, the kitchen and January and he returned to the same plastic and bags, upside-down an jar con- apartment and Greenwood answered the taining dining table, crack on the room all door times. both Leadmon that testified of which stated police she the seized. Vanfield, Greenwood stated that he and his girlfriend, living were in apartment. the Barnes further testified that had she Kraemer, seen John Anderson and together Greenwood documents examiner in apartment the Metropolitan prior Police two Department occasions qualified and a fall: on first handwriting occasion expert, she testi- saw Green- wood, prosecution that, Anderson, fied for the but not selling drugs, in opinion, his and on the Vanfield was the writer of second occasion she saw several Greenwood selling in the entries cocaine and notebook that Anderson “holding” had been large seized from quantity bedroom and crack. that Green- probably wood was the writer of several of The jury hear, however, did not entries, the other but that he could not Barnes had charged been with second-de- any associate Anderson with of the writ- gree in murder June 1986 and that ings notebook. charge was dismissed prejudice without Detective Charles DiDomenico April testified year less than a appel- before expert as an in the sale and distribution of lants’ charge trial. This was first revealed illegal drugs in Washington, D.C. He ex- the court defense counsel at dire voir plained the difference between cocaine in on the morning of the day second powder form base, “crack,” cocaine testimony: by Detec- informant Q. paid you Are for Anderson]: a. MR. STOWE [counsel this, tive Leadmon? Honor, is Your request, My other con- No, the witness question I’m not. allowed A. be murder dismissal cerning the your life? out for Q. Is a contract understanding our it is charges, because ByA. who? of witnesses interviewing a number from in to you turned Q. By people night out in persons last number or a get on three occasions Leadmon Mr. that this was area Mayfair-Paradise dropped? murder your a result about as or came brought about A. No. the witness between agreement an of and Q. you sure? Are return that in Leadmon Detective A. Positive. Leadmon Detective work would she added). (emphasis Tr. 679 him certain give information. dire, telling completion of voir persons are Now, these After whether court, prosecu- know, response to the that’s district I do the truth murder per- objection to reference Court for asked the tor’s why I’ve reason defense jury, ruled that have first or before question to ask the mission proffer be- to make it. would have about counsel dire the witness voir the Court cross-examining Barnes on the fore about, isWhat this THE COURT: attorney argued that charge. Greenwood’s murder? to im- charge was relevant dismissed Yes, sir. MR. STOWE: *6 event, that, any Barnes and peach murder? Whose THE COURT: im- granted had been transactional Barnes case, had a murder She MR. STOWE: prosecuted thus could not be munity and case, degree in the second a murder responded prosecutor The the murder. for stabbing from evolved evidently immunity to grant of by revising the it, and as I understand female of another immunity for “[tjransactional November she stabbing, that a result of else.” everything immunity for use and dis- the case was charged. then And im- court, question of focusing on the The missed. could be that Barnes peachment, indicated criminal prior Now, impeached know whether evidence we do explained attorney knowl- then Anderson’s Dubester has Mr. acts. case—unless it, know that: we do not whether edge of because it lacked by my was dismissed advised I was MR. STOWE: an because it was
merit or whether to a num- he investigator who said talked Detective Mayfair- exists between agreement night that last people ber and this witness and to him that explained Leadmon area and Paradise case, then Government, charges if that’s the had and they was there —that it, into charges to delve had be able murder dropped. I think we should The been police coop- her paid informant for in return for dropped, if she’s a and been nature, things of as an that department and Detective Leadmon eration with credibility for her goes informant, it to a contract I that because think and there, out by people put out and bias. life was Le- Detective provided she because had added). prosecu- (emphasis 659-60 Tr. lead that with [sic] admon information charged had Barnes been conceded that tor narcotic bust three arrest and claimed murder on but with June houses. than less been dismissed the case had that added). attor- Barnes’ (emphasis permitted defense Tr. court later. The a week to consult ney requested a few minutes regarding Barnes question to counsel charge murder dire, regarding Barnes Tr. during voir with charge prosecutor regarding attorney cross-examined Anderson’s immunity. grant as follows: Barnes meantime, pressed In the the court or never worked for Leadmon as a result attorney proffer Anderson’s for a of that. Barnes’ murder was dismissed in (emphasis added). Tr. 691-92 Anderson’s for her work as an informant:
return attorney accepted representation, but Look, THE point COURT: is that added that he would check into his “wit- you’ve already opportunity had the to say differently, nesses who and whether explore Barnes’ case was dis- [whether these are flip-flop witnesses now that will work], missed in return for her and she time, flipped back that the first I don’t has denied it. You have no basis hesitation, know.” After some the district for going beyond you If that at this time. questioning regarding court ruled out time, going go beyond are to that at this charge: dismissed murder * * * you’ve got give your proffer. then to me THE COURT: What are the questions you intend to ask? added). (emphasis Tr. 687 Anderson’s at- Barnes’ all events on or before November 19. rule on attorney informed the court that she and that such evidence would be based on hear- had denied mant. torney proffered an witnesses who would say client, and that there were several—the woman also was person and a woman was stabbed. The somebody assaulted My understanding vestigation, I understanding of what Before have transactional and use prosecutor As far as this homicide or murder in- MS. LOBO informant. The defense counsel’s *7 attorney responded the court had an that Barnes was a else after had [counsel have a a gay also that he would apparently agreed that Officer Leadmon is that say woman and another prosecutor objected completely explained for fighting that Barnes was that Barnes was proffer, Barnes]: that opportunity my fighting with immunity paid client was that: with subpoena involved. different * * * infor- my going she’s a ble to ask that good citizen in tablish motive? question? will places in the same area as— an tion. to Detective Leadmon as the result of that whether she has THE THE COURT: MR. THE MR. DUBESTER: How does that es- MR. THE COURT: MR. STOWE [*] agreement permit going Now, STOWE: That’s to raise the COURT: What’s COURT: DUBESTER paid informant; be [*] that? raided what is the next go [counsel Anderson]: to—that’s caused three question. [*] No, no, no, I in and ask her about I’ll That think it is for community. given permit [prosecutor]: question [*] drugs, for right. wrong somebody isn’t that it? information because he's [*] and one’s permissi- question? with that whether ques- is a $ You I Now, ahead. Go what is the next reason that was dis- question? missed was because there were a num- ber MR. flipped only ques- witnesses who STOWE: That’s the their sto- I Apparently ries over. tions had to ask her a defense attor- about that. ney in that case from the Public Defend- Well, THE COURT: what about the ers get Service was able to number of murder? statements from witnesses who later murder, MR. STOWE: The going I’m changed ap- statements and there was to ask her charged whether she was parently problem investiga- with some with murder in degree the second tor. whether agreement there was an THE COURT: So there's been no deal her and Detective Leadmon. made? Well, that, THE if you COURT: ask
MS. LOBO: There going permit was no deal made I’m to Mr. Dubester to in that she had no bring contact with Leadmon out these other facts. rebring the used to follow- Honor, says can’t be Your MR. DUBESTER: dismissed, have been ing case here. retry murder cases which cannot that, I one, I ease. And think that but the murder I understand THE COURT: up open yourself to told to going permitted to be you are that should think be to one, going you if are because that on jury- that— get into I’ll allow it. THE COURT: Honor, that is Your DUBESTER: MR. immediately in- prosecutor Tr. 707. remote.
so
court, however, that he did not
formed
any ba-
don’t have
THE COURT:
authority
grant
to
transactional
have
Lobo said
what Ms.
beyond
goes
that
sis
regard to the mur-
immunity, at least with
correct?
is that
today;
here
Despite protests from defense
charge.
der
That’s correct.
DUBESTER:
MR.
reneging
prosecutor was
counsel
nothing
you
And
know
COURT:
THE
complete transactional im-
grant
his
on
to
going
from than that? I’m
different
attor-
sustained Barnes’
munity, the court
no basis
out,
there is
because
rule it
re-
ney’s objection to cross-examination
there
than the
other
fact of
fact
charge.
garding the murder
dismissed, and
and it was
charge
awas
It
is
that.
nothing that
there is
attorney
day,
in-
Later that
Anderson’s
had
nothing to do—Mr. Leadmon
has
that, according to the
formed
court
correct,
that;
is
nothing to do with
report
Superior
from D.C.
pretrial services
Ms. Lobo?
Court,
1986 murder
the June
for
LOBO
Barnes]:
MS.
[counsel
dismissed,
later
a week or a month
not
understand,
Honor.
I
Your
what
That’s
asserted,
July
but
prosecutor had
right.
going
I’m
All
So
COURT:
THE
attorney
reiterated
1987. Tr. 784.
excep-
your
You can have
it
to rule
out.
questions regarding the
objection to
her
tion.
potential Fifth
charge,
based
Green-
GARBER-
MR.
[counsel
“I
problems:
understand
Amendment
connection,
you
I know
In that
wood]:
objection
morning
my
Court ruled this
out
justWe
found
ruled on that.
have
be sustained.”
going into that would
are
yesterday. We
this witness
about
any
objected
also
prosecutor
When the
investigating.
process of
still in the
charge,
the murder
reference
Look,
going
give
I’m
COURT:
THE
“I’m
attorney responded
Anderson’s
bring
you want
ability to
whom
you full
I
told
can’t
*8
going
ask
I’ve been
to
that.
bring
every one
bring. You can
back
to
added).
(emphasis
Anderson’s
ask that.”
witnesses,
I’ll
and
of
Government’s
Alaska,
to Davis v.
attorney then referred
wit-
permit you to cross-examine those
1105,
308,
MR. STOWE:
not
murder
II.
No.
going
case.
I’m not
go
to
into the
A. Denial
Cross-Examination
case,
murder
Your
All
Honor.
I—
right.
Appellants
THE COURT: All
Okay.
argue that
the district
court violated their
right
constitutional
to
Because
there is anything,
I will
if
testifying against
confront witnesses
them
permit you
get
to
into that.
by refusing
permit
to
cross-examination of
(emphasis added).
Tr. 787
Tanya Barnes regarding her dismissed
cross-examination,
On
Barnes admitted
charge.
agree.
prior drug
prior
use
convic-
The Confrontation
Clause
the Sixth
tions. Barnes also stated that shé first
guarantees
Amendment
right
of an ac-
found out
the trial
days
about
two
before
cused
in criminal
“to be con-
stand,
she was
called
when Detective
fronted with the
against
witnesses
him.”
Leadmon and another officer served her
Const,
U.S.
amend. YI.
It is well-settled
subpoena.
with a
explained
Barnes
more
means
than be-
“[confrontation
she had known Leadmon since
1983
1984
ing allowed to confront
physi-
the witness
and made a passing reference meeting
cially.”
Alaska,
Davis
308, 315,
him in connection with
charge.
her murder
1105, 1110,
94
(1974).
S.Ct.
defendant defendant a criminal think that We by witness credibility of of the Confrontation a violation states possible bias at directed cross-examination prohibit- showing that he was Clause probationary the witness’ deriving from in engaging appropriate otherwise ed in even delinquent, juvenile as a status designed to show cross-examination con would cross-examination though such part on form of bias prototypical interest asserted state’s flict with the witness, thereby expose “to to confidentiality juvenile preserving jurors ... from which jury the facts Davis, delinquency. See adjudications re- appropriately draw inferences could also 1112; see 320, at 94 S.Ct. at 415 U.S. reliability lating witness.” to 687, 693, States, 282 U.S. v. United Alford Davis, 680, 106 (quoting Id. at S.Ct. at 1436 (1931). The 220, 218, L.Ed. 624 75 51 S.Ct. 1111). 318, 94 S.Ct. at U.S. at 415 that, not although it could Court concluded have ac jury would speculate whether in this case have appellants hold that argument that counsel’s cepted defense from the records this test. Public satisfied biased, possibly was prosecution witness Division, Court, re- Superior Criminal D.C. the bene- entitled have jurors were “the 26, 1986, D. Tanya that on June veal them so theory before fit the defense degree charged with second Barnes was judg- an informed they make could 22 armed, in D.C. violation of while place on weight to the [the ment as Unit- Complaint, See 2403, 3202. Code §§ ‘a cru- provided testimony which witness’] Barnes, No. F-5110-86 v. Crim. ed States petitioner’s proof ... of link in ” cial 1986). 26, aAt June (D.C.Super.Ct. filed 317, Davis, at 94 S.Ct. 415 U.S. at act.’ 3, case was hearing July on preliminary Alabama, 380 v. Douglas (quoting 1111 De- jury action. On pending grand held 1077, 1074, 419, 13 415, 85 S.Ct. U.S. by a 1986, indicted 9, was Barnes cember Indeed, (1965)). rea- the Court L.Ed.2d offense. See In- jury for the same grand ef- that, make cross-examination soned Barnes, Crim. v. United States dictment, fective, have been counsel should “defense 9, Dec. (D.C.Super.Ct. filed F-5110-86 No. the facts expose jury to the permitted 1986). arraignment on December At her of fact and jurors, as sole triers from which re- 1986, pled guilty 23, Barnes draw infer- appropriately credibility, could After two unsuccess- jury trial. quested wit- reliability of the relating ences hearing status January, attempts ful 318, at 1111. 94 S.Ct. ness.” Id. U.S. at 1987, 6, February at held Arsdall, Similarly, Delaware Van 2, 1987. On for March was scheduled trial 673, 106 L.Ed.2d S.Ct. Wertheim, granting 18, Judge February (1986), that a held defendant Court continuance, converted motion for Barnes’ right to effective his constitutional denied hearing to hear status date to a trial trial court where “the cross-examination a new and set suppression motion possibility prohibited all inquiry into the On April March date of trial as a would be biased *10 that witness] [the to however, was unable reach the court pend of his dismissal of the State’s result although it that suppress, noted to motion Id. charge.” at ing public drunkenness witnesses, and eight government had Court, relying 679, 1435. The 106 at S.Ct. hearing the suppression on rescheduled cutting Davis, “[b]y thus on reasoned 11, May for 1 trial April for motion that the an event questioning about off all 1987, count 1, the murder April On that a place and had taken State conceded See by government. fur- dismissed found was might reasonably have jury 1138 Cover, Barnes, judice, prosecutor
Jacket
United States
case sub
con-
(D.C.Super.Ct.1987).
charged
ceded that
Crim. No. F-5110-86
Barnes had been
charge
murder and that the
was dismissed
Thus, contrary
prosecutor’s
to the
reinstatement;
prejudice
without
to
Barnes
charge
assertion at trial that the
was dis
may
testify
have feared that if she did not
later,
661,
missed less than a week
Tr.
favorably
prosecution,
for the
the murder
charge
fact dis
charge might have been reinstated. Such
prejudice more than
missed without
nine
subjective
influence,
government
if
even
initially charged
months after she was
unwarranted,
objectively
precisely
is
appellants’
only eleven months before
trial.
kind that
ripe
Leonard held
for cross-
Although the district court ruled that the
examination at
trial. Cross-examination
charge
only
dismissed
could
raised
if
be
possible
arising
for
bias
from this fact
agreement
defense counsel could show an
“expose
jury
would
to the
the facts from
prosecution,
between Barnes and the
jurors,
which
as the sole triers of fact and
existed,
agreement
find that even if no
credibility,
appropriately
could
infer-
draw
witness,
against
murder indictment
re
relating
reliability
ences
of the wit-
cently
prejudice,
dismissed without
reveals
Davis,
318,
ness.”
ger,
697
to review-
factors,
readily
all
accessible
violation
(finding
Clause
Confrontation
include
These factors
ing courts.
judge prohibited cross-examina
trial
where
testimony in
the witness’
importance of
pending sec
prosecution witness’
into
tion
case,
the testi-
prosecution’s
whether
charge). Under these
ond-degree murder
cumulative,
presence or
mony was
circumstances,
counsel
have
defense
should
corroborating or con-
of evidence
absence
exploratory cross-
at
permitted
least
been
testimony
the witness
tradicting
the relevance
examination
establish
cross-ex-
points,
extent
on material
indictment and to
dismissed murder
and, of
permitted,
amination otherwise
arising
possible bias
impeach Barnes for
prose-
course,
strength the overall
694,
Alford, at
See
therefrom.
case.
cution’s
(trial
off
may not
at 220
“cut
courts
S.Ct.
California,
Harrington v.
Id.
subject
(citing
inquiry on a
in limine
all
1728,
S.Ct.
a U.S.
defense was entitled
respect to which the
Florida,
Schneble
(1969);
cross-examination”).
L.Ed.2d 284
reasonable
*12
427, 432,
1056, 1059-60,
prosecution
ample
92 S.Ct.
had
evidence con-
(1972)).
necting
Barnes had a substantial motive to favor 1. Jury Regarding Instruction in her testimony. “Carrying” a Firearm
Moreover, prosecution’s against Anderson was first otherwise weak: Anderson claims that the tri Greenwood judge gave al standing jury was found in an erroneous doorway of the instruction drugs located, meaning using bedroom in on the “carrying” were or officer, others, during one firearm but not and in relation testified that he to a trafficking saw Anderson offense: money throw some floor behind the bedroom door. For all of employ The term used means to or avail reasons, the above we cannot conclude that oneself of. carry The term means to the denial of in cross-examination this case person bear on or about one’s or to be beyond was harmless a reasonable doubt. convenient access within reach. Arsdall, 681, 106 See Van 475 U.S. at S.Ct. (emphasis added). Tr. 1247-48 Greenwood at 1436. argues instruction, that the which defines “carrying” to include “convenient of ac- Appellant Greenwood reach,” cess” or “within impermissibly respect Greenwood, With meaning how broadens the “carry- the term ever, jury even if the ing,” where, had case, discounted as this Greenwood testimony biased, the other evi was found one bedroom guns and the against dence him convinces us another. Because defense counsel did not reasonable doubt that the denial object of cross- to the instruction Greenwood con- examination in this case was harmless as to appeal cedes on plain error stan- him. applies. 52(b). dard See Fed.R.Crim.P. *13 (finding 1010 sufficient evi- 857 F.2d at argument almost frivolous. find this We a support dence to of use of in 18 or carries” U.S.C. phrase “uses The during drug trafficking crime firearm limited to actual 924(c)(1) not been has § drugs, including police where found cocaine possession of a a firearm or discharge of distribution, packaged for further and sev- United See person. one’s firearm on firearms, loaded, of them in en two defen- Robinson, 1006, F.2d 1010 v. 857 States house). In light of these two dant’s (5th Cir.1988) (affirming conviction where factors, jury’s we conclude that the verdict residence); in guns found defendant’s were guilt based on sufficient evidence of was Matra, F.2d 841- v. 841 United States properly that the district court denied and Cir.1988). importantly, the (8th More 43 acquittal the motion for on this count. given from the the instruction deviation of (with instruction standard “Redbook” Sufficiency Evidence Fire- 3. for agrees) is so presumably which Greenwood arms Possession Conviction likely jury would no reasonable trivial that difference, much less Greenwood next maintains that even have noted evidence to prejudice of Greenwood. there was insufficient establish relied on it to Association, pos Bar a reasonable doubt that he District of Columbia Cf. (3d Instructions, unregistered shotgun ed. found in No. 4.81 sessed the Jury Criminal ‘ * * “ * drugs. on or the bedroom with the 1978) (a weapon is carried if it is locat- person’ the defendant’s about may be actual or construc Possession person as to be proximity to the ed in such tive; possession is inferred constructive reach”). and within of access convenient knowing from dominion and control over that the dis- confident are therefore We United States v. See question. item in plainly errone- was not puted instruction Hernandez, (D.C.Cir. F.2d ous. 1986). argues in Greenwood that the facts permit an inference of this case do not Carry- Evidence 2.Sufficiency control, because, knowing dominion and ing Firearms Conviction assuming resided in that Greenwood even that, Vanfield, contends even there was no apartment also Greenwood light most fa of the in the knew shot viewing the evidence evidence Greenwood United see government, gun’s presence. to the vorable James, 764 F.2d (D.C.Cir. v. States above, plainly is suffi- As discussed there con 1985), juror could have no reasonable that Greenwood cient evidence to conclude doubt beyond a reasonable cluded apartment in and used living dur a firearm used or carried Greenwood shotgun was later in which the bedroom trafficking drug ing in to a and relation bag shotgun found in a The found. asserts, essence, Greenwood offense. the room to which in the middle of the floor him with nothing to connect that there was jury could rea- key. had Greenwood guns in the bedroom with found that Greenwood sonably have inferred drugs. presence in the bedroom gun’s of the knew it. and control over had dominion above, First, noted disagree. that some- no evidence offered Greenwood connecting evidence there was substantial shotgun in planted the might have one else to the bedroom Greenwood from Viewing the evidence the bedroom. Second, am- there was guns were found. to the most favorable point of view jury could ple evidence from which accordingly conclude government, guns an were reasonably infer that rational evidence for a sufficient there was opera- drug trafficking integral part of the had construc- Greenwood jury to find that guns of the proximity tion —the shotgun. possession of tive pres- drug paraphernalia, drugs and ammunition, guns ence of loaded Tanya Barnes Drug Test of guns are often found expert testimony that dis argues that the next drug traffick- Greenwood protect in “crack houses” denying Robinson, its discretion trict court abused their investment. See ers and request drug ordering Tanya his for a test of abuse its discretion in not Barnes Butler, undergo Barnes. 481 to test. See United States *14 531, (D.C.Cir.1973)(trial F.2d court did declining
not abuse its discretion in
to or-
5. Admission
Prior Bad Acts Evi-
of
der examination of
witness
dence
narcotics).
having
who admitted to
used
argues finally
Greenwood
that the
district court abused its discretion under
pre-
that there
Greenwood concedes
is
404(b)
Federal Rule of
in
Evidence
admit
sumption against ordering such an exami-
“
ting
prior
evidence of Greenwood’s
bad
nation,
‘may seriously impinge
because it
* * *
acts, namely,
testimony
Barnes’
that she
right
privacy;
on a witness’
transacting drugs
observed Greenwood
in
examination itself could serve as a tool of
apartment
prior
on two
occasions.
harassment;’
an
likelihood of
ex-
primary
Greenwood’s
contention is that
deter
amination could
witnesses from com-
closely
this evidence was not
related
forward,”
ing
Butler,
with other evidence at trial hurts more III. him, helps
than it jury, having because the The district court in this case erred in not firsthand, testimony heard the could well permitting defense counsel to cross-exam- have discounted testimony Barnes’ entire key government ine a witness for bias aris- as incredible. ing recently from a dismissed murder in- Thus, given myriad credibility deter- dictment. Even if defense counsel could involved, minations determinations that are prove express agreement not cooper- an guess, ate, for us to second we conclude we hold that the mere fact that the district court this case did not prejudice was dismissed without only I that the separately is because believe to bias and is relevant reinstatement judge responsibility ap- once subject of cross-examination. trial has proper thus a prised of such facts and circumstances to convic- appellant Anderson’s We reverse any extent of be satisfied full say that such con- cannot tion because possible explored bias or duress has been harmless stitutional error exercising scope discretion as to the before to him. affirm reasonable doubt any preliminary A cross-examination. convictions, how- appellant Greenwood’s only voir dire defense counsel of not weight evi- ever, of the other because having knowledge of witness but others against him convinces us dence *15 events, judicial participation if nec- a reasonable harmless error was essary, bring out all the facts is an to him. doubt as predicate essential to the determination of so ordered. It is appropriate scope of cross-examination jury. before the WILL, Judge, District Senior concurring. must Anderson’s conviction agree
I defense counsel because
be reversed permitted under the facts have been
should here to cross-examine circumstances having prelimi- to make a without
Barnes duress. I write
nary showing of bias or