United States v. Robert J. Butler

fоrfeiture, provision these the pose in the case of would serious ticularly constitu- peculiar expertise of questions, issues within the forcing explore are tional us to ques- courts, agency. and de- the not the Fraud tions which prefer we would to avoid absent the are, unfortunately, questions which ceit the clearest indication that such was the we regularly, and are courts must consider of that Congress. intent We conclude when the elements of well-acquainted both against VA the takes affirmative action an evidentiary the standards the offense and individual by bringing whether action to Indeed, which its determination. govern by proceed- recover on claim or an asserted agency’s attempts to ad- problems with the right set-off, ing on common-law of the provisions, together minister the forfeiturе validity underlying of basis of the the ac- pen- criminal feeling with the that standard judicial scrutiny. tion becomes open to We punishment and de- alties were sufficient therefore decision of the reverse the district fraud, the led to terrence for withdrawal pro- court and the case for further remand power the to declare forfeitures agency’s ceedings opinion. consistent with Report cases in as House domestic makes clear: cases in for-

More than a hundred which by had been considered the Veter-

feiture by were

ans’ Administration examined problems In addition to committee. philosophy forfei-

involved in basic

ture found administra- the committee tion was not uniform and program UNITED of America STATES inequitable results. created Considera- to depend upon tion forfeiture seemed cases were

chance so that some forfeited BUTLER, Appellant. Robert J. instances identical many where other 78-1458, Nos. 79-1014. were not misrepresentation considered. recently there had not Until been Appeals, Court of States testing adopted for the materi- standard Circuit. District of Columbia ality many of a statement so that Submitted June was adjudged instances forfeiture where bearing had no false statement 29, 1980. Decided Oct. entitlement of the benefit. In most in- accurately was not stances the accused against charges him and

informed of

in other cases the Veterans’ Administra- possession

tion of the true so facts by the misrepresen- were not misled

tation.

House sum, we have determined 211(a)

question whether section would-or inquiry in a court’s a case such

should-bar never con- this one was addressed or when Congress, prede- either

sidered 211(a) was first or adopted

cessor to section Furthermore, in 1970. its amendment section, as identified purposes оf Court, Supreme would not be served 211(a) to this

extending the section bar Finally,

situation. such construction Corcoran,

Larry Washington, Martin D. brief, (appointed by court) C. was on appellant. for Silbert, Washington, Earl J. Atty., U. S. C., filed, D. at the time the brief was John Farrell, Terry, W. A. Michael James F. Bucknam, Rutherford and William E. Asst. C., Attys., U. Washington, S. D. were on brief, appellee. BAZELON, Judge,

Before Senior Circuit TAMM, Judge, Circuit and BARRINGTON PARKER,* ‍‌‌​‌‌‌‌​‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌​‌‌​‌​​‌​​‌‌‌‌‌‌‌‌​‍Judge D. U.S. District for the District of Columbia.

Opinion the court District filed Judge BARRINGTON D. PARKER. Dissenting opinion filed Senior Circuit Judge BAZELON. PARKER, D. District

BARRINGTON Judge:

Appellant charged Robert J. Butler was possession in multicount indictment phenmetrazine with intent to distribute separate August June on four dates: August 19 and October 1977. The guilty returned a on the June verdict of dates, the first three counts. It was unable to reach a verdict on the fourth charging count distribution on October 31 partial accepted, and after verdict was government dismissed that count. ground Butler defended on govеrn misidentification and alibi. The depended chiefly upon the testi ment’s case Scott, Metropoli mony of Officer Vincent (MPD), who, Department tan Police while undercover, working allegedly purchased drugs appellant on the four occa sions Butler contends the trial listed above. prejudicial by failing court committed error judgment prin acquittal. to enter a cipal presented issue is whether the evi legally dence was sufficient to submit case to the and to sustain Butler’s *Sitting by designation pursuant to 28 U.S.C. 292(a) (1976).

§ We (D.C.Cir.1976), conviction.** find that it was and we and his proof alibi affirm. fourth count. that, testified while work- jurisdiction follows the “one- area,

ing undercover in the 14th he Street allowing witness” rule proven, a case to be had observed Butler on several occasions exceptions with limited not relevant in this еngaged appeared drug in what to be trans- case, through the uncorroborated testimony Then, actions. of the dates four- eyewitness. of one United States v. Tel indictment, approached by faire, count he was the (D.C.Cir.1972). 469 F.2d 552 In decid and, appellant following a conversation ing whether a go one-witness case should him, with appellant quantity sold a jury Scott the upon incumbent the trial phenmetrazine tablets. As to each transac- judge to consider a number of factors relat tion, proximity peri- Scott was in close ing period to the of identification and to of at ods least two to three minutes. Fol- determine totality “whether the of circum sale, lowing prepared “buy” each a ‘give[s] stances very rise to a substantial ” report detailing the transaction and includ- of irreparаble likelihood misidentification.’ ing description of the seller. Those Levi, de- 380, (4th 405 F.2d 383 scriptions, referring to Butler as 1968), John Doe quoted Telfaire, Cir. approval, 8,# respects differed in ap- several 469 F.2d at 555 particular, n.5. the pellant’s appearance. notably, Most judge should consider the opportunity for taller, profile person forty-five identification, two inches conditions, lighting heavier, sixty pounds years and six older. encounters, duration of strength of the Appellant’s counsel cross-examined Scott identification judges’s and the appraisal of extensively divergent about descrip- capacity Telfaire, witness’ to observe. Appellant presented tions. also four wit- Further, 469 F.2d at 555-59. after making nesses who as to testified his whereabouts a determination to submit jury, the case to sale, 31, on the date of the final October judge the trial should instruct on 1977, Halloween. The dis- properly how to evaluate identification tes missed the October 31 count when timony. Special Model See Instruction on partial returned a verdict on the Identification, Telfaire, first three 469 F.2d at 558. Appellant argued counts. at trial that The trial court jury appropri instructed the showing present he was not ately instance, one sale he in this giving a version of had present demonstrated he was not the “Telfaire instruction” tailored to fit the alleged Appellant sales. facts of this case. Tr. at 198-200. produce unable to evidence of his where- cognizant This Court is discrepan- abouts on the dates of the first three sales. cies between Scott’s identification and reali- Appellant However, claims the evidenсe was ty. “insuf- when there is no “[i]t ficient to sustain a conviction” and there- evidence which a reasonable mind judge’s fore the trial failure to enter a might fairly guilt beyond conclude a reason- judgment acquittal constitutes error. judge able doubt may properly He appeal bases this on the unreliability of take the case jury.” from the United uncorroborated testimony, Davis, identification see 681, (D.C.Cir. v. States 562 F.2d 683 Greer, United 1977). States v. 538 F.2d evaluating And in this determina- ** Appellant originally appeal ports filed on received at trial as “Jencks” material. July argument issue on “buy” 1978. No. 78-1458. Counsel is without merit. The appellant appeal reports eight withdrew that brief and pages constitute hand-written filed a prepared by Motion for a New Trial with the trial drug Officer Scott after each sale. court which They motion wаs denied order of given were to defense counsel appeal, December 1978. On this No. 79- prior “Jencks” material to the commencement appeal by consolidated with the earlier of the trial and cannot be considered “new Court, appellant order of this also claims the Thompson States, evidence.” v. United judge prejudicial by deny- trial committed error (D.C.Cir. 1951); F.2d 652 see United States v. ing the motion for a new White, trial based on a claim (D.C.Cir. 1975). 514 F.2d 205 consisting police “buy” of new evidence re-

tion, 29, 1977, “this court must view the evidence in On November driving while light govern- through most favorable to the the 14th superi- Street area with a position.” arrest, ment’s or officer hope making Crawford in the States, (D.C.Cir.1967). spotted 375 F.2d Officer Scott Robert Butler and announced: “There is John Doe Number 8.” Proof one-witness Scott, According to Officer “Number 8” had when, jury question should be a as in this sold him narcotics on four occasions—June case, officer, police experi- trained and August and October 31. enced in identification has numerous occa- solely upon Based Officer Scott’s statement sions to observe a defendant under satisfac- that the man he saw on November 20 was tory conditions. Scott testified that he rec- 8,” “Number Butler was arrested and con- ognized importance descrip- of accurate This, despite victed. the fact that Robert years tions in his four with the and that Butler bore little resemblance to “Number MPD, year spent one of which he undercov- 8,” as “Number 8” was described Officer illegal drug er investigating trafficking, he just in notes pur- Scott written after each practice” describing had “fair amount of chase. those with whom he came into contact. poses This case a fundamental issue not Appellant ample opportunity had to majority. striking addressed In a impeach credibility during Scott’s cross-ex- way, danger injustice it reveals the in- credibility amination. issue of was one herent eyewitness the so-called “one determine, for the to not this Court. ‍‌‌​‌‌‌‌​‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌​‌‌​‌​​‌​​‌‌‌‌‌‌‌‌​‍rule,” the rule that allows convictions based addition, it was for the to decide upon an uncorroborated whether or not Butler’s alibi for the Octo- single eyewitness.1 To extend that “rule” proof ber 31 sale should serve as and offset to cases like the one expand at hand is to its government’s testimony as to whether scope beyond justified by well what is Butler was indeed involved in the three police rationale. Where the can obtain cor- earlier sales. effort, roborating evidence with reasonable they required Here, should be to do so.

Taking light the evidence in the appears from the record that police government most favorable to the could have obtained verification for Officer legally Court finds the evidence sufficient testimony with little Scott’s additional ef- jury. for submission of the ease to the Ac However, fort.2 to afford the cordingly, judgment is affirmed. opportunity explain why it did not BAZELON, Judge, Circuit dissent- Senior effort, expend such I would remand the ing: hearing findings record for a of fact on October, 1977, through From June Offi- Accordingly, that issue. I dissent. Scott, agent cer Vincent an undercover Metropolitan with the Department, Police I. THE IN IDENTIFICATION investigation conducted an drug traffick- THIS CASE ing Washington, on 14th D. Street C. months, During those he made over 100 period, Over a five-month Officer Scott “buys” thirty-seven suspeсts different saw man he called “John Doe Number 8” —or, thirty-seven in his words from occasions, differ- almost a dozen times.3 On four ent protect “John Doe’s.” To his “cover" bought Scott narcotics from “Number 8.” investigation, for the he made no arrests purchase, “Buy After each he filled out a investigation completed. until after the was Report,” describing person who sold him See, Telfaire, g., e. 469 F.2d In addition to the on which he four occasions 8,” (D.C.Cir.1972). bought 552 narcotics from “Number Officer Scott saw “Number 8” three or four times 30, 1977, before June and two or three times p. infra. 2. See 734 between June 30 and 1977. Trial Record, Transcript at 24-25. Furthermore, times, weight only 8” was was not drugs.4 Two “Number discrepancy between Officer days, area those Scott wearing a T-shirt.5 On descriptions of “Number 8” and facts weight at 185 and reported “Number 8’s” Admittedly, Butler. the oth- abоut Robert occasions, the other two pounds.6 On minor, develop only are or discrepancies er weight at 175 8’s” recorded “Number Scott testimony if the of defense witnesses Yet, Robert Butler pounds.7 certainly credited.12 But their existence extra- pounds.8 This is an weighs authority nothing does to lend offi- When asked to ex- ordinary discrepancy. And, when are cer’s identification. that, it, when testified plain Officer Scott combination, plausible discrep- even seen arrested, heavier than 130 appeared Butler disturbingly ancies can reveal a consistent wearing pairs two pounds because he penchant inaccuracy. is the case Such course, explain this does not pants.9 Of here. “Num- have miscalculated why Scott would weight nights he made noted. All ber 8’s” One final matter should be explain agreed What it does that when Robert Butler was purchases.10 parties —inad- arrested, why may drugs possession.13 he had in his vertently, to be sure —is Scott no the heavier He no statements that would indicate have mistaken Butler made recognized or night of the arrest.11 that he knew Officer Scott.14 “Number 8” on the II, reproduced “Buy Reports” Volume Robert Butler are 4. The four “Billy.” report- Appendix opinion. I to this was never called grew ed that “Number 8” a moustache between Record, Transcript II. Trial at 42-44. Volume 5. August Compare “Buy 19 and 31. October 1, 2, Yet, “Buy Reports Report & 3” with 4.” Appendix “Buy Reports I. 6. 1 & 2.” Robert Butler’s father testified that there had change appearance during been no in his Appendix “Buy Reports I. 7. 3 & 4.” 30, 1977, period from June to October 1977. Record, Transcript Trial at 108. Volume II. Investigation, Appendix Report PD 854. 8. of Scott, According to Officеr on two occasions II. wearing was “Number 8” black white “Buy Reports Record, shoes and a black & Transcript T-shirt. Trial at 41-42. Volume II. 9. Record, Yet, 2.” Volume II. Robert Butler’s supra. 10. See note 6 parents swore that their son did not own either black and white shoes or a black T-shirt. Trial discrep- illogical explanation Such an for the 11. 93-94, Record, Transcript at ancy displays also with the defensiveness Moreover, Officer Scott swore that he dealt which Scott came to his of treat identification person with the same on June eyewit- Butler as “Number 8.” It is a fact that August 19 and October When asked in 31. develop in identi- nesses an “investment” their December to account for whereabouts on his fication. See Part II infra. dates, four said that he those defendant could not remember his on what were activities Scоtt, standing example, 12. For Officer after randomly nights to him three selected on next to “Number 8” for several minutes However, past. months he said that he could occasion, put height times that man’s each four his one of the remember nights whereabouts on Yet, “Buy Reports.” Appendix I. at 5'9". And, 31, Halloween. there —October Investigation, Report Robert Butler is 5'7". testimony was that Butler was not out Robert Or, Appendix PD 854. ple, II. for another exam- night. Transcript of the house on that Trial consistently Officer Scott noted “Number 89-95, Indeed, II. one of 105. Volume age “Buy Appendix Reports.” I. 8’s” as 35. things jury verdict in this the odd about the Yet, Investiga- Robert Butler is 29. convict Butler of case is that could not tion, Appendix PD 854. II. IV, being purposes of “Number 8” for Count witnesses, Testimony by several defense apparently of its members be- because some acсepted unquestioningly, fur- while not to be Yet, those lieved Butler’s alibi for October highlights pattern be- of dissimilitude ther was same members of the believed he contemporaneous de- tween Officer Scott’s purposes 8” for of the other three “Number reality scriptions of “Number 8” and dates. knew as Robert Butler. The man Officer Scott “Buy “Billy.” 8” Re- “Number was nicknamed Preliminary Transcript Hearing Yet, 2, 3, according ports Appendix I. & 4.” father, Transcript at Rec- to both his Trial 14. Id II, friends, ord, Transcript Volume his Trial And, important problem he flee.15 While these that did not facts cannot ignored be conclusive, they are not cast doubt on in cases of Judge this kind. As McGowan noted, guilt, Butler’s many experts not on innocence. concluded that solely convictions eyewit- based “one presented Officer himself as a ness” represеnt “conceivably identifications trained and careful observer. This claim of greatest single threat to the achieve- expertise to only serves accentuate the dis- ment of our ideal that no innocent man between, hand, crepancies on the one punished.”17 shall be I will not rehearse descriptions Scott’s man he called here all of the recent literature in this and, “John Doe 8” Number other Rather, area.18 I will myself confine hand, the facts about uncontested Robert highlighting the main themes that bear on Butler. The credits pow- more one the case before us. observation, greater weight ers of must jurors We are given contemporaneous place great be told that faith descrip- to his eyewitness 8,” testimony in the tions of and the more face implau- “Number —even Further, of information that discredits it.19 sible it becomes that Robert Butler jurors assertive, Nonetheless, all, tend to believe confident spite “Number 8.” readily witnesses positive more than less at trial Scott asserted that Robert Yet, ones. studies suggest recent that hé knew Butler was the man as “Number there is relationship in fact no at all be assertion, 8.” And based and it Indeed, tween accuracy.20 confidence and alone, prison. Robert Butler sent

when misleading information introduced II. THE UNRELIABILITY OF EYE- “memory” into a witness’s close to the time testifies, suggest IDENTIFICATION he actually

WITNESS studies he can be wrong more about right confident than Whatever doubt about identification tes- Also, information.21 witnesses often be timony pro- the circumstances of this case come more confident of the accuracy of vokes, by inquiry it is concerning intensified their рassage reliability unreliability eyewit- —or —of apparently time22 —as Officer Scott did testimony generally. ness There is now a the instant case.23 wealth demonstrating of literature tendency of to be observers, such evidence inaccu- perceive Juries po- trained like course, licemen, rate.16 Of this literature does not especially as reliable identification case, dictate a prosecutor conclusion about identifica- witnesses. Yet, tion it played upon of Butler. But should alert us to an that belief.24 there is now Eyewitness Identification, 15. Id. 29 Stanford L.Rev. 969, (cited (1977) 974-89 hereinafter as Stan- Loftus, See, g., Eyewitness Testimony 16. e. E. ford). (1980) (cited Loftus); as hereinafter A.D. Yar mey, Eyewitness Psychology Testimony Loftus, Reconstructing Memory: 19. The In- (1979) Sobel, (cited Yarmey); as hereinafter N. Eyewitness, Psychology Today, crеdible Dec. Eyewitness Legal Identification: and Practical 1974 at 117. Sobel); (1972) (cited Problems hereinafter as P. Wall, Eye-Witness Identification in Criminal Wall, 16, supra 20. Id. See also note at 15-16. (1965) (cited Wall). Cases hereinafter as 16, Loftus, supra 21. note at 101. McGowan, Interpretation 17. Constitutional Identification, Mary Criminal 12 Wm. & L.Rev. Wall, 16, 15; Stanford, supra supra 22. note at course, (1970). nobody Of would be note at 985 & n.59. system satisfied with a that convicts innocent people upon based misidentifications. It Compare Jury Transcript 23. at 7 with Grand noted, however, should also be that with each Preliminary Transcript Hearing at 14. person goes guilty such conviction a free. government, closing argument 18. In addition books 24. The in to the noted footnote at trial, compilation put jury’s willing- there is an excellent of recent terms of the issue in way Eyes Expert data in Did Deceive ness to Scott: Your You? believe “[T]he Testimony you Psychological Unreliability guilty can find not ... if is [the defendant] place.29 “Number 8” and took police may be Officer Scott indicating that evidence Scott, ordinary probable It is that Officer who for than at no better area, five months staked out that had seen citizens.25 surpris- it not be Butler. Therefore would far deals with the said so has been What if, same ing having spotted Butler that testify they about behave way witnesses neighborhood about a month after his last learning But about their recollections. 8,” recognized contact with “Number it seeks to memory itself as of the operation Butler, him with the context of associated revealing. more identity is even an “recall” occasions, earlier neighborhood that on popular notion rеjected have Scholars his memories unconsciously transferred recorder, tape acts like a memory that Butler. about “Number 8” to merely process remembering is where other Aspects “memory” operation tape. We now know that playing back aggravate danger than “transference” active, constructive “memory ... the one at of misidentification in cases like introduces inaccuracies that often ‍‌‌​‌‌‌‌​‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌​‌‌​‌​​‌​​‌‌‌‌‌‌‌‌​‍process showing There is extensive research hand. present in the initial adding details not unwittingly per- distort their that observers itself.”26 in the event representation or ceptions comport personal needs. is the to this case particular Of relevance phenomenon danger creates a serious phenome- memory of a constructive role pressure mistake in cases where there is People often “transference.” non called identify the observer to someone.30 This difficulty remembering the context have conclude: caused one researcher to they piece first encountered a which policemen in .made [Identifications Thus, possible information.27 activities, highly competitive such as un- identify person as one correctly witness to agents, dercover narcotics whose chances met, incorrectly placing while whom he has promotion may depend upon the num- context.28 It is person particular that in a sales, ber of arrests made because of their that this kind of “transference” conceivable special be scrutinized with care.31 should case. We know that occurred in the instant passed through Based current research about Robert Butler sometimes operation memory, experts have de- the area in which the transactions between lying. people you police He saw involved. Studies indicate that find that the officer is many greater difficulty recognizing times.” Trial Tran- faces of another the defendant too Loftus, script at 182-83. race than faces of their own race. 136; supra Yarmey, supra note note Loftus, 163; See, g., supra e. note And, interestingly enough, at 130. con- Wall, supra note at 14. people that it is who have clude not true frequent contact with members of another race Stanford, supra note identifying are more accurate in members of Loftus, 138; supra at Yar- race. note Stanford, supra 27. at n.53. note 983-84 correct, mey, they supra Loftus, 60; Wall, note at 131. If are supra See also note in a case of cross-racial identification facial supra note at 119-22. significant identification should become less Williams, (1963). See 28. G. The Proof of Guilt by than in an a member of the identification in also sources cited note 27. height, weight, age, same race. Factors like (like hair), distinguishing characteristics facial Record, Transcript 29. Trial at 77-82. Volume clothing important should become more II. than would be. otherwise case, In the instant the identification was 30. We cannot tell if this case from the record who, by having completed five made an officer involves a identification. But it cross-racial work, driving in months of undercover was noting bears that Officer Scott’s squad supervisor looking car with his for the light purportedly was a facial onе. of the culprits. Transcript 67-68. Trial area, discrepancies in research in this testimony concerning all “Number 8” would be important the more if was a cross-racial this Wall, supra 31. note at 14. Commentators identification. argue even that the chance of mistake becomes more severe if a cross-racial identification is veloped “danger signals” single several to sensi- of a eyewitness.38 This rule devel- investigators danger tize and courts to the oped out of necessity: certain crimes are memory. of a mistake in We have men- solitary.39 Reluctantly, accepted we growing tioned some: a confidence in the dangers eyewitness” latent in “one identifi- witness, testimony part of the cations, but sought mitigate we those observer, ability claim special as an a dangers by adopting detailed instruc- “transference,” setting conducive to a con- tions.40 pressure text that creates on the witness to The case before today puts prob- us identify “danger signals” someone. Other eyewitness” lem of “one identification in a include: omissions in the initial descrip- different light certainly, one that did not — tion,32 lapse in time between the relevant occur to me as a member of panel identification,33 encounter and the and a Telfaire,41 the landmark discrepancy serious description —es- subject. Here, case on this the police con- pecially a discrepancy height, weight or long ducted a five month investigation. age.34 Significantly, every one of these outset, they From the knew that the crux danger signals is in the present case at many of the brought cases at thе close of hand. investigation including case — against “John Doe Number III. THE 8”—would be SCOPE OF THE ONE-EYE- eyewitness by identification made WITNESS RULE Offi- Nevertheless, cer Scott. police appar- just case and the research reviewed ently made no effort to create corroborat- sobering are principle reminders of the al- ing evidence to support that identification. ready by embraced this court: “identifica- No other officer—not even Detective James testimony tion presents special problems of McNamara, on-sight supervisor— reliability,” very danger and “the real any “covered” Nobody the sales. jus- mistaken identification a threat to [is] watched from a party distance. No third lacking tice.”35 Even in cases all of the produced witnessed, who had unreliability indicia of or had outlinеd at, court, present been any of the validity serious doubts about the transactions. Still, photographs No were identifications have arisen.36 with ex- taken. Officer Scott ceptions was not requiring partic- corroboration for wired for a recording. sound offenses, ular (notably fingerprints crimes sex where “Number 8’s” were not taken urge to fantasize or motive to objects fabricate handled him. And, high),37 makes the risk of misidentification over a five period, attempt month no permits this circuit convictions based was made to track “Number 8” to an ad- testimony uncorroborated identification dress or to identify him name. Wall, supra appeal 32. eyewitness note to us on recanted his identification). Id at 127. States, 37. Coltrane v. United 418 F.2d Id at 99-100. The maximum deviation (D.C.Cir. 1969). weight expected, example, that should be Gardner, pounds. one of 20 E. The Court Telfaire, (D.C. 38. United States v. 469 F.2d 552 (1952). discrepancy Last Resort 82 in the Cir.1972); States, Jones v. United 361 F.2d 537 pounds. case at hand was 45 to 60 (D.C.Cir. 1966); Thompson States, v. United (D.C.Cir.1951); 188 F.2d 652 Bullock v. United Telfaire, 35. United States v. 469 F.2d 555 States, (D.C.Cir. 1946). 157 F.2d 702 (D.C.Cir. also, 1972). g., See e. United States v. Greer, (D.C.Cir.1976); 538 F.2d 442 United Telfaire, 39. United King, States v. (D.C.Cir. 469 F.2d 554 States v. 461 F.2d 156-58 (D.C.Cir. 1972). 1972) (Bazelon, J., concurring); C. Hamilton, (D.C. States v. 420 F.2d 1295 Cir.1969). 40. Id. at 558-59. See, g., Greer, 36. e. 538 F.2d (D.C.Cir. 1969). 41. 469 F.2d 552 (D.C.Cir.1976) (where after the case came Instead, after thousands of buys eyewitness upon an uncorroborated identifi- period, a faces over five month cation: community released the arm- was into requirement, Such a absolute or condi- only “Buy Reports” with and his ed tional, remedy is the obvious when the of “Number 8.” With warrants recollection prosecution relying upon evi- is a class of hand,42 thirty-seven Doe’s” in he “John dence have It may that inherent defects. through drove thе streets Detective remedy is the well-tried which both Par- picked until he Robert Butler McNamara judiciary liament regularly and the have the crowd that he was “Num- and said applied past. in the the need or So once of such Apparently ber 8.” the use “John desirability the for some of safe- sort is procedure43 Doe” warrants standard guard granted, is the is corroboration need not be in the One versed extraordi- employ pass- natural one to and the onus unreliability nary eyewitness testimony of against es to to make out case its critics a spectre policemen to tremble it.45 roaming streets with warrants for the a fear an across- due to that Eventually, arrest of who nameless citizens will be upon on convictions based the-board ban plucked throng from the and convicted was too harsh uncorroborated identification upon the based uncorroborated memory of remedy, Devlin’s de- a Lord Committee arresting officer. this is That standard excluding rule such adopt per to a se clined procedure appalling. is it is That standard Instead, acknowledging the procedure in eases convictions. corroborating where evi- be injustice dence could obtained with of this grave danger reasonable convictions effort is unconscionable. present, recommended sort the Committee sup- “one rule to eyewitness” use the To cir- special permitted that be can be where corroboration port convictions sup- or where evidence exists cumstances effort to ex- with reasonable obtained port identification.46 original justi- beyond rule far pand that across-the- entertain an We need not inexcusably flirt with may It fication. so uncor- based on convictions board ban as to danger of mistaken identification to address testimony eyewitness roborated It certainly process.44 violation due be a already outlined. We problem I have fairness, it in concepts challenges support evidence to corroborating require may that citizen be convict- means a effect testimony.47 pro- I eyewitness” “one some policeman’s state- solely on basis of ed of a requirement additional pose merely the something on a date that he did ment police to part good faith effort past, the defendant date months eyewit- evidence for corroborating obtain recall detail. unlikely to evidenсe where such testimony in cases ness Britain, particularly two In Great after effort. with reasonable acquired be can identity, cases of egregious mistaken a com- use government desires ease where the under the chairman- mittee established evidence, be it would such uncorroborated study problem ship of Lord Devlin to not that could required to show eyewitness” “one identification. The Com- seriously proposal mittee entertained a reasonably acquired corroborating evidence. any conviction have barred based would Fundamental fairness demands this much.48 Record, Transcript 149-50, quoted Stanford, 42. Trial at 57. supra Volume II. 46. Id. at note 18, at 1004 n.167. Transcript 43. Trial See, g., accompanying 47. e. note 37 and text. Denno, 44. Cf. Stovall 388 U.S. 87 S.Ct. Wall, 184-85; supra See also note J. (1967). 18 L.Ed.2d 1199 Wigmore, (Chadbourne Evidence rev. § 2034- III, 1978); ed. U.S.Const. art. 3.§ Sec’y to the of State for the Home Comm, I remand this record to afford would Dep’t Departmental on Identifi- why opportunity explain it an to (April 1976), quot- cation in Criminal 79 Cases corroborating did not evidence Stanford, obtain supra 18, ed in note 1001-02 n.151. 736 the extension of that rule to cases where

IV. CONCLUSION corroborating evidence reasonably the can be dangers of the lays bare case Thus, police. obtained justifies corroborating Nothing rule. eyewitness” “one assuming arguendo testimony. (the tending prove guilt But dence rule) to no evidence justify could its reliance enough that the and a record that contains evi- testimony, question re- on uncorroborated persuade dence to guilt beyond some rational fact finder of was sufficient evidence of mains whether there guilt (the reasonable doubt constitu- jury. this case to the Because the to send test). noted, tional As Justice Stewart has “a majority opinion applies what I believe is jury may occasionally properly instructed [im- clearly incorrect standard its discussion properly] convict even when it can be said that issue, following compelled I feel to note the guilt beyond no trier of fact find rational could ” views. Virginia, a reasonable doubt . .. Jackson v. . process to con- 307, 317, 2781, 2788, clause demands that The due 443 U.S. 99 S.Ct. 61 prove must vict a criminal defendant the state (1979). always, L.Ed.2d will 560 Almost there Winship, guilt beyond In re reasonable doubt. support be some evidence to such an errant 358, 1068, 90 25 L.Ed.2d 368 397 U.S. S.Ct. verdict. But the demands more Constitution Moreover, (1970). requirement if this is to searching appellate review —review calculаted meaning, appeals able a court of must be have judge per- to determine whether the trial has properly fact has to review whether the trier of applied operate beyond boundary mitted the to doubt standard. In the the reasonable authority. of its’ review, appellate court must course of such Virginia, In Jackson v. 443 U.S. 99 S.Ct. presented at trial was ask whether the evidence (1979), Supreme 61 L.Ed.2d 560 Court a reasonable fact finder to sufficient to enable explicitly declared the evidence” standard “no beyond guilt doubt. determine reasonable constitutionally unacceptable. Jackson arose sufficiency evidence there- of the Questions request from a writ for relief on a of habeas dimension. assume a constitutional Thus, that, corpus. might argued be becаuse Curley ago, Over decades v. United three power of a federal habeas court to hold denied, States, (D.C.Cir.), cert. 160 F.2d 229 evidentiary hearings, Wright de novo see & 67 91 L.Ed. 1850 331 U.S. S.Ct. Sofaer, Corpus Federal Habeas for State Pris (1947), Judge Prettyman described the standard Fact-Finding Respon oners: The Allocation of employed by circuit to evaluate the suffi our sibility, (1966), 75 Yale L.J. 897 n.10 stan ciency appeals from denials of evidence petitions dards adduced for review of habeas Noting motions for directed verdicts. the lim are not relevant to direct review. But in Jack Judge Pretty- jury’s responsibilities, its of the application son the that the Court indicated judge the function of the to man added: “It is deny “upon corpus habeas relief should be decided jury any opportunity operate be trial," the record 443 evidence adduced at the fashion, yond рrovince.” Id. at 232. In this (emphasis added). U.S. at 99 S.Ct. Judge Prettyman viewed the reasonable doubt thereby placed The Court the habeas court and boundary prov standard as the between sitting precisely a court in direct review in Thus, jury. judge the evi inces of “[i]f Thus, same situation vis a vis the trier of fact. jurymen dence is such that reasonable ‍‌‌​‌‌‌‌​‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌​‌‌​‌​​‌​​‌‌‌‌‌‌‌‌​‍must regarding require the Court’s instruction doubt, necessarily judge have such a must process applies equal ments due force require acquittal, because no other result Accord, Supreme in both contexts. Court permissible within the fixed bounds of Sufficiency 1978 Term—Standard of Review of (emphasis added). consideration.” Id. Conviction, Supporting of Evidence Criminal Curley, Judge Prettyman offered an alter- (1979). Harv.L.Rev. This result native formulation of this rule: state it “[T]o principle consonant with the that stаndards to way, upon if another there is no evidence applied traditionally be on direct review are fairly might which reasonable mind guilt beyond conclude stringent applied doubt, more than those habeas reasonable the motion [for proceedings. accordingly acquittal] granted.” Other circuits must be Id. at 232-33. already applied ap quoted in cases of direct Jackson This second formulation has been fre- See, See, peals. g., Laughman, quently g., Majority e. United States v. in this e. circuit. however, (4th 1980); Unfortunately, 618 F.2d 1067 Cir. Opinion at 729-730. Fera, 1980); (1st that evi- 616 F.2d 590 repeated, notion Cir. the critical it has been (9th beyond Melchor-Lopez, prove guilt States v. F.2d 886 Cir. dence must be sufficient to 1980). Therefore, beyond cavil that it is now reasonable doubt has phasized, been deem- sometimes process requires appellate the duе clause and a kind evidence” rule has of “no sufficiency judge emerged. court of the evidence sometimes a “no evidence” Such whether, asking Curley based the evidence rule is both unfaithful to the standard offered, guilt process a rational fact finder could find and violative of the due clause of the beyond Virgin reasonable doubt. Jackson Constitution. ia, 443 U.S. at 99 S.Ct. at 2788. important practical There is an difference between a trial record that contains some evi- required in evidence should be cases of N.W. and handed T St. I then him $33.00 however, ease, govern- In this sort. my right and John then with hand Doe # 8 opportunity has not had the yet ment my porch out of and went on the got vehicle a reasonable effort would demonstrate that my T and returned to car of 1331 St. N.W. produced corroborating havе evidence. not pink handed me three tablets BI-62 and Therefore, I for a would remand record right his I then hand. left area. hearing findings and of fact on that issue. # 2 Buy not cor- If does have roborating evidence and cannot demon- Dept. Metro-Police that a effort was made to strate reasonable Wash, D.C. it, judge I produce would instruct the trial Tuesday, judgment acquittal. enter a If the corroborating evi- government does have # 8 Doe Buy John Sheet trial, present but not it at merely dence did Name judge I would instruct the trial to entertain Only way a motion for new trial. in this Billy Alias — can we address the terrible issues raised Address Accordingly, this case. I dissent. comp. Approx. Descript. —NM—d. Height —5'9" I APPENDIX lbs. Weight —185 Buy Report # 1 yr. Age —35 Dept. Metro-Police T-shirt, hat, blue black Clothing —blue Wash. shoes and white pants, black Thursday, June 16, 1977 Tuesday, August Date — # 8 hrs. Buy John Dоe Sheet Time —2200 Name BI-62 pink tablets Purchased —two Alias and purchased Where Wallach St. —14th Address N.W. Descript, approx. comp. —NM—d. $20.00 Price — Height —5'9" standing 14th and on the corner of While Weight lbs. —189 John Doe # 1 and Wallach St. N.W. I saw yrs. Age —35 I # 8 with each other. talking John Doe hat, T-shirt, Clothing green white Doe # 8 said bam approach then John and —blue army pants, black shoes. many he then said how did I want and I I two and he then said that’s said $20.00. 30, 1977 Thursday, June Date — twenty # 8 handed John Doe dollars then hrs. Time —1930 pink then two tablets BI-62 and he took pink Purchased —3 tablets BI-62 right pants and handed it pocket of 1331 T N.W. Where Purchased —front St. Doe # 1 then asked John to me. John Doe many # 8 how did he left because $33.00 Price — else bam. John Doe wanted some someone person pink three Wallach N.W. # 8 then handed another parked While at 14th & St. person handed BI-62 and the othеr my # 8 car and said tablets approached John Doe money. # 8 I then talked hey Doe some yeah. and I said I then said John $11.00 bam five got Doe 1 about minutes Doe # 8 then with John # and he said OK. John I I left heard John go N.W. left the area. Before my into car and said let’s to T St. # 8 (Billy). # 1 call John Doe # 8 in of 1331 Doe I then drove John Doe front pink Purchased —2 tablets BI-62 Report Buy # 3 Where-Purchased —14th & Wallach PI. Dept. Metro-Police N.W. Wash., D.C. $18.00 Price — Friday, August parked While at 14th and Wallach abreast PI. N.W. John Doe # 8 said bam and I then Buy Sheet on John Doe # 8 said how much and he said nine dollars and Name— two, I then him give said for me which Billy Alias — pink he handed me two tablet BI-62 with Address-— right hand. I then handed John Doe my right # 8 $18.00 hand. John Doe Descript. Approx. comp. —-NM—d. # 8 then asked me if I needed works Height —5'9" I told him that I didn’t. Weight lbs. —185 Age yrs.—35 APPENDIX II Clothing shirt, hat, blue blue pants, —red Description Excerpted Butler Robert black & white shoes Report, from P.D. Morals Division File Friday, Investigation, P.D. Pros- Date — Report, ecution Found in I Volume Time —0100 hrs. Name —Robert Butler Purchased —2 pink tablets BI-62 Bobby Nickname — Where purchased & Wallach St. N.W. —14th Height —5'7" $20.00 Price — Weight lbs. standing on the corner of 14th & While —130 # 8 said bam Wallach N.W. John Doe St. Age yrs.—29 yeah and I said how much and John Doe hat, Clothing flop brown leather —maroon give me two # 8 said and I then said $10.00 jacket, dungarees, type blue red boot shoes twenty and handed him dollars. John Doe pink # 8 then handed me 2 tablets BI-62 right pink I

with his hand. then took the

tablet and left the area.

Buy Report # 4

Metro-Police Dept. CROWLEY, Jr., Individually Wash. D.C. Dale & in his capacity as Executive Director of the Monday, October National Foundation for Fairness Ed Buy Sheet on John Doe # 8 al., ucation, Appellants, et Name— Billy Alias — SMITHSONIAN INSTITUTION et al. Address— No. 79-1193. ‍‌‌​‌‌‌‌​‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌​‌‌​‌​​‌​​‌‌‌‌‌‌‌‌​‍Descript. Approx. —NM—must. Appeals, States Court of Height —5'9" District of Columbia Circuit. Weight lbs. —175 Argued Jan. Age yrs.—35 Decided Oct. hat, Clothing jacket, black blue —black jeans Monday, October Date —

Time —2000 hrs.

Case Details

Case Name: United States v. Robert J. Butler

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 29, 1980

Citation: 636 F.2d 727

Docket Number: 16-1172

Court Abbreviation: D.C. Cir.