UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

DAVIS, HORACE L.


93-3059a

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: In United States v. Crowder, 141 F.3d 1202  (D.C. Cir.
1998) (Crowder II), the court, sitting en banc,  affirmed Davis's
conviction.1 Davis now seeks rehearing on  three grounds. The en banc
court referred Davis's petition  to the panel. For the following
reasons, we deny the petition.


Davis first contends that Officer Farmer's testimony at  trial and his
testimony at the suppression hearing were in  conflict and that the
district court therefore should have  permitted Davis to introduce the
suppression hearing tran- script into evidence.


At the suppression hearing, when asked where he filled out  the buy
report, Farmer stated that he filled it out at the  police station:


Defense counsel: "That's something [the buy report] you  filled out
back at the station, right?"


Farmer: "Yes."


Defense counsel never asked Farmer whether he filled out  every section
of the buy report at the station. Later at trial,  Farmer gave more
specific answers, testifying that he filled  out most of the report at
the station but filled out the clothing  description at the scene
before the police arrested Davis.  Also at trial, Farmer explained on
redirect that he filled out  the clothing description on the scene so
that "if the arrest  team asked me again what was the clothing
description, I  have it written down so I can remember it better and I
 wouldn't make a mistake in the clothing description."


Davis stresses Farmer's failure to state at the suppression  hearing
where and when he filled out the clothing description  portion of the
buy report. There are three answers to this  line of argument. First,
it may not have been entirely clear  to the district court that
Farmer's response at the suppres- sion hearing--in light of the broad
question defense counsel  asked him--gave rise to a testimonial
inconsistency. See  United States v. Hale, 422 U.S. 171, 176 (1975);




__________

n 1 Because Crowder II recounts the facts of this case, we do not 
repeat them here.


States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995). Second, in  view
of the facts that defense counsel read Farmer's suppres- sion hearing
testimony to him during cross-examination, and  that Farmer did not
deny giving that testimony, the district  court may have believed that
admitting the transcript would  merely have been cumulative. See Rule
403, Fed. R. Evid.  Third, even assuming that Farmer's suppression
hearing  response and trial testimony conflicted and that the district
 court abused its discretion by not permitting Davis to intro- duce
the transcript into evidence, any such error was harm- less. As we
have said, during the cross-examination of  Farmer the jury heard
word-for-word what he had said at the  suppression hearing. See
Appellant's Appendix 192. See  United States v. Roger, 465 F.2d 996,
997 (5th Cir. 1972).  Given the freedom defense counsel enjoyed to use
the sup- pression hearing transcript, the district court's refusal to 
admit the transcript into evidence in no way prejudiced Davis  or
impaired his defense. See United States v. Bogle, 114 F.3d  1271,
1275-76 (D.C. Cir. 1997); Williams v. United States,  403 F.2d 176,


As to the second ground for rehearing, the district court  also did not
abuse its discretion in admitting Officer Farmer's  redacted "buy"
report. Even if the buy report was inadmissi- ble as a public record
under Fed. R. Evid. 803(8)(B), it was  admissible under Fed. R. Evid.
801(d)(1)(C) as a statement of  identification made after perceiving
Davis. The facts here  are similar to those in United States v.
Coleman, 631 F.2d  908, 914 (D.C. Cir. 1980), and United States v.
Clarke, 24 F.3d  257, 267 (D.C. Cir. 1994), which affirmed the
admission of  similar police notes and tapes that contained witness
identifi- cations of the defendants under this rule. (Even though the 
district court did not admit the buy report under Fed. R.  Evid.
801(d)(1)(C), this court can affirm on that ground. See  United States
v. Jacoby, 955 F.2d 1527, 1535 (11th Cir. 1992);  United States v.
Walsh, 928 F.2d 7, 10 n.10 (1st Cir. 1991).)


In challenging the buy report's admissibility, Davis relies  on United
States v. Oates, 560 F.2d 45, 83-84 (2d Cir. 1977),  which holds that
Fed. R. Evid. 803(8)(B) bars the admission of  records like the buy
report. Oates is of questionable prece-


dential value--other circuits disagree with its sweeping lan- guage,
see United States v. Hayes, 861 F.2d 1225, 1229-30  (10th Cir. 1988);
United States v. Picciandra, 788 F.2d 39, 44  (1st Cir. 1986); United
States v. Metzger, 778 F.2d 1195,  1201-02 (6th Cir. 1985)--and, in
any event, the decision is  inapposite. The court's holding in Oates
derived from an  express concern about preserving the defendant's
right to  confront his accusers. See Oates, 560 F.2d at 83-84; Hayes, 
861 F.2d at 1230. That is not an issue here. Farmer  testified at
trial and was subject to cross-examination. An- other case relied on
by Davis, United States v. Smith, 521  F.2d 957, 965-66 n.20 (D.C.
Cir. 1975), is also otiose. Like  Oates, Smith concerned Confrontation
Clause issues--which,  again, are not at issue here because defense
counsel cross- examined Farmer. See Coleman, 631 F.2d at 914 ("[t]he 
concern in Smith that the government might submit its entire  case by
means of unchallenged documentary evidence is not  present here").


Even if the district court erred in admitting the redacted  buy report
and permitting the government to refer to it  during closing, any such
error was harmless and did not  prejudice Davis. See Clarke, 24 F.3d
at 267. The evidence  against Davis was strong. Officer Farmer
testified that he  was "without a doubt" that Davis was the man from
whom he  bought a rock of crack cocaine on February 27, 1991. Other 
officers positively identified Davis as one of the men arrested  one
to two minutes after Officer Farmer's "lookout." And  Officer Vines
testified to Farmer's identification of Davis at  the scene. See
United States v. Dyke, 901 F.2d 285, 287 (2d  Cir. 1990). Because the
clothing description in the buy  report simply mirrors the direct
identification of Davis, any  erroneous admission of such cumulative
evidence is therefore  harmless. See United States v. Lampkin, 159
F.3d 607, 614- 15 (D.C. Cir. 1998); Clarke, 24 F.3d at 267.


The third issue Davis raises relates to the district court's 
determination to admit evidence of Davis's bad acts. See  Fed. R.
Evid. 403. It is clear that the district court took its 
responsibility under Rule 403 seriously. The district court 
explicitly "weigh[ed]" and analyzed the probative value of 


admitting evidence of Davis's prior bad acts. And the district  court
took account of and sought to limit any potential  prejudice to Davis
by, among other things, excluding mention  of the prior bad acts until
the end of the government's case in  chief and barring reference to
them in the government's  opening and closing statements.


Whether the district court included in the Rule 403 balanc- ing Davis's
proposed stipulation is not clear. On the one  hand, the district
court stated that it would follow United  States v. Hudson, 884 F.2d
1016 (7th Cir. 1989), which  adopted a per se rule making a
defendant's proposed stipula- tion irrelevant to the 403 balancing
test in specific intent  cases. On the other hand, the district court
assessed the  probative value of admitting the evidence and
"weigh[ed]" it,  presumably against any potential prejudicial effect
(what else  would be on the other side of the scale?); the district
court  mentioned the proposed stipulation during this on-the-record 
Rule 403 balancing; and the district court stated that the  proposed
stipulation "should not control" the balancing, im- plying that, in
contrast to Hudson, the court found the  stipulation relevant to the
403 determination. Thus the dis- trict court may have considered on
the record the stipulation  during its Rule 403 balancing, but as we


At all events, if the district court failed to weigh the  proposed
stipulation in the balance, a remand would neverthe- less be
unwarranted. The factors germane to the Rule 403  determination are
readily apparent and an on-the-record con- sideration of the proposed
stipulation would not have changed  the district court's ruling. See
United States v. Graham, 83  F.3d 1466, 1473-74 (D.C. Cir. 1996);
United States v. Man- ner, 887 F.2d 317, 322-23 (D.C. Cir. 1989).


In Old Chief v. United States, the Supreme Court reiterat- ed that as a
general rule, district courts may--indeed  should--permit the
government to introduce relevant evi- dence of bad acts to prove
elements of guilt (excluding felony  status) and to establish all the
circumstances surrounding the  offense. See 519 U.S. 172, 186-89,
191-92 (1997). Here, the 


government sought to use the evidence to prove intent and  knowledge
elements. On the other hand, we determined in  Crowder II that Davis's
proposed stipulation was "of uncer- tain and doubtful significance."
141 F.3d at 1208. "It men- tioned only some hypothetical drug dealer,
some 'person.'  Yet the prosecution's evidence of Davis's prior crack
cocaine  sales--sales close in time and place to those charged in the 
indictment--was not meant to show that someone had intent  and
knowledge. The evidence was introduced to prove that  Davis had the
intent to distribute the crack and that Davis  knew what he was
possessing. Davis's proposed stipulation  could not possibly have
substituted for such proof. It did not  even mention him by name." Id.
At the end of the Crowder  II opinion, in the discussion of Rule 403,
we added the  following: "Here the proposed stipulations were
ambiguous,  conditional and tentative. Neither mentioned the defendant
 directly. At no point in their trials did either defendant  propose a
jury instruction requiring the jury to find the  conceded element of
intent.... The judges who presided at  their trials could not possibly
have anticipated the model jury  instruction that later developed ...
and their failure to do so  was neither 'plain' nor 'error.' " Id. at
1210. This last point  is particularly telling. Davis's proposed
stipulation needed to  be backed up by a jury instruction. Without
one, with just  the naked and ambiguous stipulation Davis tendered,
the  district court's assessment under Rule 403 could not possibly 
have been affected. We reverse a district court's decision to  admit
evidence under Rule 403 only for a grave abuse of  discretion. See
United States v. Neville, 82 F.3d 1101, 1107  (D.C. Cir. 1996).


The petition for rehearing is denied.


So ordered.