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


UNITED STATES

v.

SMITH, ANTONIONE


00-3026a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: On November 3, 1999, following a  three-day
trial, a federal jury found appellant Antonione  Smith guilty on one
count of unlawful possession of a firearm  and ammunition by a
convicted felon in violation of 18 U.S.C.  s 922(g)(1) (1994). Smith
was thereafter sentenced to 51  months in federal prison, where he now
resides. On appeal,  Smith identifies three alleged evidentiary
errors, each of  which he argues merit reversal of the judgment below
and  remand for a new trial. Only one of the alleged errors,  however,
requires extended treatment here.


Smith challenges the admission of government witness  Frank Haera's
testimony that government informant Kevin  Perry, himself a witness at
trial, had provided truthful infor- mation to the police in the past.
Here, Smith renews his  timely objection that the testimony was
irrelevant under  Federal Rule of Evidence 402. He also offers a new
argu- ment that was not raised at trial, i.e., that the so-called 
"bolstering" evidence was inadmissible under Federal Rule of  Evidence
608(b). Rule 608(b) prohibits the use of extrinsic  evidence "for the
purpose of attacking or supporting [a]  witness' credibility." Fed. R.
Evid. 608(b). The Government  responds that the prosecution offered
the "bolstering" testi- mony to rebut defense counsel's insinuation on
cross- examination that informant Kevin Perry had been biased by  his
plea agreement. As a result, the Government argues that  Rule 608(b)
does not apply.


We need not reach the substance of this disagreement.  The fact that
Perry had testified truthfully in the past was 


plainly relevant. Because Smith did not raise the more  specific Rule
608(b) objection at trial, we must review admis- sion on that front
for plain error. This circuit has not yet  addressed whether, and to
what extent, Rule 608(b) prohibits  admission of extrinsic evidence of
specific instances of past  "truthful" cooperation offered by the
government to rebut  allegations of an informant's bias; and there is
no consensus  among the circuits that have addressed the issue. Thus,
even  were we to find error, it would not be plain.


Smith's two remaining challenges fare no better. Smith  argues that the
trial court, despite defense counsel's failure to  lodge timely
objections, should have barred sua sponte the  prosecution's
references to Smith's aliases as well as state- ments implying that
Smith was a violent and dangerous  criminal. Allusions to Smith's
aliases were not so gratuitous,  and implications that Smith was a
violent criminal not so  transparent, as to merit a finding of plain
error on either  count. We therefore affirm the judgment of the


I. Background


A. The Investigation


The Bureau of Alcohol, Tobacco and Firearms ("ATF")  utilizes a special
High Intensity Drug Trafficking Area  ("HIDTA") task force to
investigate narcotics dealing, violent  crime, and drug-related
homicides in the District of Columbia.  In 1996, HIDTA agents began a
targeted investigation of the  Park Morton housing complex and
surrounding area--a  known locus of drug-trafficking, violence, and a
number of  unsolved murders. Trial Transcript at 21-22 (Nov. 2, 1999) 
[hereinafter Tr.]. The investigation employed observation  posts,
undercover narcotics purchases, and the arrest and  recruitment of
confidential informants to aid in locating and  arresting other


In the midst of the ongoing investigation, officers observed  Perry
selling crack cocaine. Rather than face trial on distri-


bution charges, Perry, who is confined to a wheelchair, en- tered into
a cooperation agreement on February 14, 1997.  Pursuant to his
agreement, Perry entered a guilty plea to one  count of conspiracy to
distribute and possess with intent to  distribute over 50 grams of
crack cocaine. Tr. at 59. In  exchange for assistance, information,
and truthful testimony,  HIDTA agents agreed to dismiss two charges
then pending  against Perry in Superior Court. Tr. at 63-64. The
Govern- ment also agreed to file a substantial assistance motion 
pursuant to U.S. Sentencing Guidelines Manual s 5K1.1  (1997), urging
the District Court to waive the mandatory 10- year minimum sentence on
the federal distribution charge.  Tr. at 63. Though not explicitly
part of the agreement,  agents also provided Perry with various
amounts of money  for rent, bills, childcare, transportation, and
moving expenses.  Tr. at 46-47, 104-07.


B. The Transaction


According to Perry, Smith--whom he had known for 10  years--repeatedly
approached him in the summer of 1997  about purchasing an "AK-47." Tr.
at 66-67. Though Smith  was not himself a target of the investigation,
HIDTA agents  instructed Perry to go ahead with the transaction. Tr.
at 67.  Perry testified that he and Smith agreed on a price of $900 
for the rifle, and because Perry claimed to be buying the  weapon on
behalf of a friend, Smith agreed to give Perry a  small finder's fee.
Tr. at 67. The actual "deal" took place in  Perry's apartment on July
9, 1997. Agent Frank Haera of  the HIDTA task force oversaw the sting
operation. Tr. at  27-29.


On the evening of July 9, and before Smith was to arrive at  Perry's
apartment, undercover officer Clarence Brooks ex- changed Perry's
wheelchair for one equipped with a video  camera to record the
transaction. Tr. at 114. He also fitted  Perry with a radio
transmitter and provided him a cell phone  and money to purchase the
rifle. Tr. 30-31. On his way out,  Officer Brooks passed a man
entering the apartment whom  he recognized as Smith, also known to him


114. Though no officer was present during the transaction,  Agent Haera
surveyed the events via radio transmitter from  a block away. Tr. at
30.


Smith did not have the gun with him when arriving at  Perry's
apartment. At trial, Perry testified that he and  Smith initially
discussed how Smith might inconspicuously  transport the weapon from
down the street to the apartment.  Tr. at 70-71. Smith left once and
returned without the gun,  at which time they again caucused over
means of moving the  merchandise without attracting attention. Tr. at
71-72.  Smith left a second time and eventually returned with Daniel 
Hamilton, or "Cat Face," who carried a large, torn cardboard  box into
the apartment. Tr. at 72. Hamilton put down the  box, which contained
a loaded Norinco SKS rifle, loose ammu- nition, and a black skull cap.
Tr. at 34-36, 116-18. Perry  and Smith moved the box under the couch,
and Perry gave  Smith the money. Smith returned a few dollars to Perry
for  arranging the deal, before leaving the apartment with Hamil- ton.
Tr. at 74. Officer Brooks then returned to the apart- ment, retrieved
the box and its contents, and exchanged  wheelchairs. Tr. 116-17.


C. Proceedings Below


On November 17, 1998, a federal grand jury indicted both  Smith and
Hamilton on one count of unlawful transfer and  possession of a
semi-automatic assault weapon, in violation of  18 U.S.C. s 922(v)(1)
(1994). Because Smith already had a  previous felony conviction, he
was also indicted on one count  of unlawful possession of a firearm by
a person convicted of a  crime punishable by imprisonment for a term
exceeding one  year, in violation of 18 U.S.C. s 922(g)(1). See
Indictment,  United States v. Smith, Crim. No. 98-399-01-JR (D.D.C. 
Nov. 17, 1998), reprinted in Appellant's Appendix ("App.") at  10. The
District Court dismissed the indictment on the first  count as to each
defendant, leaving only the second count as  to Smith.


The trial involving Smith's prosecution commenced on No- vember 1,
1999. After one day of testimony and argument,  the jury returned a
guilty verdict. At trial, the Government  called four witnesses--Agent
Haera, Officer Brooks, Kevin  Perry, and Jeffrey Descheemaeker, an ATF
firearms special- ist to testify about the rifle's capabilities.
During direct  examination of Perry, the prosecutor played the
videotape of  the transaction, though the sound was inaudible. Tr. at
85.  Thus, Perry's testimony was the only evidence presented 
regarding the content of his discussions with Smith and  Hamilton. The
defense rested without calling witnesses.


On February 28, 2000, the trial judge sentenced Smith to  51 months in
federal prison, followed by three years' super- vised release. See
Judgment, Smith, Crim. No. 98-299-01- JR (D.D.C. Feb. 28, 2000),
reprinted in App. at 13. Smith  now appeals, challenging three alleged
evidentiary errors.  He seeks reversal of the District Court's
judgment and  remand for a new trial.


II. Analysis


A. The So-called "Bolstering" Evidence


Smith argues that the District Court improperly admitted  "bolstering"
testimony that Perry, himself a witness at trial,  had provided
truthful information to the task force in the  past. Smith points to
the following exchange on re-direct  examination between the
prosecutor and government witness  Agent Haera:


Q: Mr. Miles asked you some questions about Mr.  Perry's cooperation
and the information he's given you.  Do you remember those


A: Yes.


Q: Is it true that Perry had given you information that  has led to the
capture of other criminals?


Mr. Miles: Objection, Your Honor.


The Court: Sustained.


By Ms. Covell: Q: As a result of Mr. Perry's cooperation, have you 
been able to arrest other criminals?


Mr. Miles: Objection.


The Court: Sustained. It's leading.


By Ms. Covell: Q: What happened--well, let me rephrase this. With  the
information that Mr. Perry gave you, what did you  do?


Mr. Miles: Objection to relevance. The Court: I'll overrule that
objection.


The Witness: Repeat your question. Ms. Covell: Sure.


By Ms. Covell: Q: Mr. Perry gave you certain information about indi-
viduals in the Park Morton complex; is that right?


A: That's true.


Q: And what did you do with that information?


A: The information that Mr. Perry gave me personally,  I did a lot of
different things with it. Some of the  information was used to obtain
search warrants. Some  of the information was used to begin
investigations on  other people in that area that were committing
crimes  such as drug dealing and firearms possession. And some  of the
information was used to inform the attorneys of  how he could help us
in these investigations by way of  testimony in the grand jury and at
trials. Q: In any of those search warrants that were based on 
information given you by Perry, did you uncover contra- band?


A: Yes. Q: And any of those investigations of other individuals  that
you started as a result of Mr. Perry's information,  did any of those
investigations lead to arrest? A: Yes Q: And were the arrests of those
individuals corroborat- ed by any tangible evidence?


Mr. Miles: Objection, Your Honor.


The Court: Sustained.


By Ms. Covell:


Q: Agent Haera, based on what you know about the  information Mr. Perry
gave you, and the search warrants  you've gotten and the arrests, do
you believe that the  information Mr. Perry gave you is truthful?


Mr. Miles: Objection, Your Honor.


The Court: Sustained.


Ms. Covell: That's all I have, Your Honor. Tr. at 52-55 (emphasis
added). This exchange came on the  heels of a cross-examination,
during which defense counsel  elicited from Agent Haera information
regarding Perry's  possible bias, including his plea agreement and
money paid  Perry by the ATF. Tr. at 42-48. Smith here renews his 
relevance objection and also raises for the first time the 
inadmissibility of the testimony under Federal Rule of Evi- dence
608(b). Because defense counsel lodged an objection on the basis of 
relevance in a timely fashion, we review admission of the cited 
testimony for abuse of discretion. See United States v.  Ramsey, 165
F.3d 980, 983 n.3 (D.C. Cir.), cert. denied, 120  S. Ct. 223 (1999).
Evidence is relevant if it has "any tenden- cy to make the existence
of any fact that is of consequence to  the determination of the action
more probable or less proba- ble than it would be without the


That Perry has informed and testified truthfully in the past  under his
plea agreement certainly bears on his response to  similar pressures
and temptations in the present. Further- more, Federal Rule of
Evidence 404(b), which prohibits the  admission of evidence regarding
past acts "to prove the  character of a person to show action in
conformity therewith,"  would be largely superfluous if the rules on
"relevance" were  construed to proscribe "propensity" testimony.
Similarly,  were we to agree with Smith, Rule 608(b)'s prohibition on


use of extrinsic evidence of specific instances of a witness'  truthful
or untruthful conduct "for the purposes of attacking  or supporting
the witness' credibility" would itself be redun- dant. The concerns
giving rise to Rules 404(b) and 608(b) are  not relevance concerns. To
the contrary, both "propensity"  rules and the rule restricting the
admission of extrinsic  credibility evidence embody specific concerns
that, although  relevant, evidence of prior acts will either unduly
prejudice  and overpersuade the jury, see Old Chief v. United States, 
519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681  F.2d
61, 63 (1st Cir. 1982)), or waste time by sanctioning  countless
distinct credibility mini-trials within the trial prop- er, see Fed.
R. Evid. 405 advisory committee's note; Fed. R.  Evid. 608(b) advisory
committee's note. In short, we reject  Smith's claim that the disputed
testimony was irrelevant and  turn to his 608(b) challenge.


It should first be noted that certain of the alleged "bolster- ing"
testimony--concerning whether the information that  Perry had given to
law enforcement officers in the past had  been corroborated and
whether Perry had been truthful in  past dealings--was objected to on
unspecified grounds and  the objections were sustained. Nonetheless,
Agent Haera  was allowed to testify that he had received and used
informa- tion from Perry to facilitate investigations, uncover contra-
band, and secure arrests. It is this latter testimony that  Smith
claims was "bolstering" and erroneously admitted un- der Rule 608(b).
In light of our ruling in this case, we need  not address the accuracy
of appellant's characterization of the  disputed testimony as


Because Smith failed to raise a timely Rule 608(b) objec- tion, we
review admission of the testimony for plain error.  See Fed. R. Crim.
P. 52(b); see also United States v. Spriggs,  102 F.3d 1245, 1257
(D.C. Cir. 1996). The term "plain" as  used in Federal Rule of
Criminal Procedure 52(b) "is synony- mous with 'clear' or,
equivalently, 'obvious.' " United States  v. Olano, 507 U.S. 725, 734
(1993). "At a minimum, a court of  appeals cannot correct an error
pursuant to Rule 52(b) unless  the error is clear under current law."


As noted above, this circuit has not yet addressed whether,  and to
what extent, Rule 608(b) prohibits admission of extrin- sic evidence
of specific instances of past "truthful" coopera- tion offered by the
government to rebut allegations of an  informant's bias. Although this
fact, alone, is not dispositive  of the plain error issue, it is
important when we consider that  Rule 608(b) itself admits of no
simple answer to the question  at hand and, in addition, our sister
circuits have been unable  to agree on the point at which
impermissible "bolstering"  ends and permissible use of past
cooperation to rebut bias  begins. Compare United States v. Taylor,
900 F.2d 779, 781  (4th Cir. 1990) ("[I]t was error for the district
court to admit  extrinsic evidence that the informer, Phillips, had
provided  reliable information and testimony that resulted in several 
convictions, in order to bolster Philips' credibility."), and  United
States v. Murray, 103 F.3d 310, 321-22 (3d Cir. 1997)  (discussing
Taylor), with United States v. Lochmondy, 890  F.2d 817, 821 (6th Cir.
1989) ("Several circuits have held that  evidence of cooperation on
other matters is admissible to  justify a cooperation agreement and to
rebut allegations of  bias." (citing United States v. Sanchez, 790
F.2d 1561 (11th  Cir. 1986); United States v. Fusco, 748 F.2d 996 (5th
Cir.  1984); United States v. Martinez, 775 F.2d 31 (2d Cir.  1985))),
and United States v. Penny, 60 F.3d 1257, 1264 (7th  Cir. 1995)


Rule 608(b) states that,


[s]pecific instances of the conduct of a witness, for the  purpose of
attacking or supporting the witness' credibili- ty, other than
conviction of crime as provided in rule 609,  may not be proved by
extrinsic evidence. They may,  however, in the discretion of the
court, if probative of  truthfulness or untruthfulness, be inquired
into on cross- examination of the witness (1) concerning the witness' 
character for truthfulness or untruthfulness, or (2) con- cerning the
character for truthfulness or untruthfulness  of another witness as to
which character the witness  being cross-examined has testified.


Fed. R. Evid. 608(b) (emphasis added). As both the plain  language of
the rule and the cases cited above suggest, the  threshold question
under Rule 608(b) is: For what purpose  has the prosecution offered
the extrinsic evidence? If offered  solely "in order to bolster [the
informant's] credibility," Tay- lor, 900 F.2d at 781, then Rule 608(b)
bars admission lest one  of the exceptions applies. But, if offered
for a different and  legitimate reason, such as "to justify a
cooperation agreement  [or] rebut allegations of bias," Lochmondy, 890
F.2d at 821,  the evidence falls outside Rule 608(b)'s narrow


Government informants present a uniquely difficult case for  courts
determining whether the prosecution has offered the  so-called
"bolstering" evidence for a permissible or an imper- missible purpose.
Routinely, defense counsel cross-examines  government witnesses about
an informant's bias--whether it  be a plea agreement, a financial
arrangement, or both. On  re-direct, the prosecution may want to
introduce specific  instances of fruitful cooperation under the plea
agreement to  show that the informant has already cooperated
substantially  with the police, thereby reducing the marginal
temptation to  lie in the present circumstance. The line between this
per- missible use and impermissible "bolstering" is indeed a hazy 
one. In Fusco, the Fifth Circuit held extrinsic evidence of  past
cooperation admissible to rebut implications that the  informant had
received $45,000 from the DEA solely for his  help in that case:
"Because the government was trying to  convince the jury that [the
informant] was not biased, it was  not 'bolstering' [the informant] in
a prohibited way, and [the  informant's] prior cooperation was not
'extrinsic,' as those  terms are used in Federal Rule of Evidence 608.
Bias, as  opposed to general veracity, is not a collateral issue." 748
 F.2d at 998. Likewise, in United States v. Lindemann, 85  F.3d 1232
(7th Cir. 1996), the Seventh Circuit found admissi- ble similar
evidence offered in response to suggestions that  the informant "would
not have gotten a plea deal if he hadn't  come up with the name of a
'big fish' like Lindemann." Id. at  1242. The court held that


[t]he evidence specifically rebutted the allegation that  [the
informant] was biased out of self-interest in Linde-


mann's case: Burns' successful participation in numerous  other cases
meant that at the time he was negotiating  over his plea deal, he had
lots of information to use as  bargaining chips. That fact was
relevant under the  standards of [Federal Rule of Evidence] 402
because it  made less probable the assertion that Burns was lying in 
Lindemann's case out of self-interest.


Id. at 1243.


Because defense counsel in the instant case failed to raise  the 608(b)
objection below, the prosecution never had an  opportunity to explain
why it offered the alleged "bolstering"  evidence. Defense counsel had
used its cross-examination of  Agent Haera to expose the terms of
Perry's plea agreement,  Tr. at 45-46, to suggest that Perry need only
"accuse"  suspects to benefit under that agreement, Tr. 44-45, and to 
show the tremendous financial incentives on Perry to provide  even
false information, Tr. at 46-48. Perhaps, as in Linde- mann, the
prosecution offered the testimony to demonstrate  the diminished
marginal value to Perry of his participation in  the instant case;
perhaps as in Fusco, it was offered to  undermine any insinuation that
Perry had received funds for  his participation in this case alone; or
finally, perhaps the  prosecution wanted to counter defense counsel's
specific insin- uation that Perry would benefit merely by accusing
people.  We simply do not know. Given these possibilities, the ambi-
guity in the case law, and the context of the present testimo- ny, we
cannot say that admission of the evidence constituted  plain error.


We conclude by emphasizing that, to satisfy the plain error  standard,
Smith must show that the alleged error "affect[ed]  substantial
rights," that is, "affected the outcome of the  district court
proceedings." Olano, 507 U.S. at 734 (holding  that the "substantial
rights" inquiry of Federal Rule of Crimi- nal Procedure 52(b) mirrors
Rule 52(a)'s "harmless error"  inquiry, except that the burden in the
former falls on the  defendant to show prejudice). Moreover, " '[t]he
plain error  exception to the contemporaneous objection requirement 
should be used sparingly, only for "particularly egregious 


errors" that "seriously affect the fairness, integrity or public 
reputation of judicial proceedings." ' " Spriggs, 102 F.3d at  1257
(quoting United States v. Copelin, 996 F.2d 379, 383  (D.C. Cir.
1993)). Here, the minimal damage arguably  wrought by the contested
testimony stands in stark contrast  to the overwhelming weight of
evidence against Smith. Fur- thermore, as noted above, it appears that
the most damaging  of the alleged "bolstering" testimony was excluded
pursuant  to objections that were raised by Smith's attorney. There 
was no plain error.


B. The Remaining Challenges


We pause only briefly over Smith's two remaining eviden- tiary
challenges. As with the Rule 608(b) issue, defense  counsel failed to
raise timely objections at trial. We thus  review admission for plain


Smith argues first that the District Court improperly al- lowed the
prosecution to refer to and to elicit answers regard- ing Smith's
aliases. The transcript does not reveal, however,  whether the
prosecution offered the aliases for arguably  irrelevant and
prejudicial purposes or primarily as a means of  identifying
Smith--Perry had apparently known Smith as  "York." Tr. at 66.
Furthermore, Smith has not shown how  the limited allusions prejudiced


Smith's second remaining argument--that the District  Court erred by
admitting evidence implying that Smith had  been a target of the Park
Morton investigation and implying  that Smith had threatened Perry
with violence--fares no  better. Perry himself testified that "[Smith]
wasn't the tar- get of the investigation, but, however, he approached
me and  asked me was I interested in buying an AK-47." Tr. at 67.  As
to possible implications that Perry had been moved on  various
occasions to protect him from Smith, the District  Court addressed any
potential problem on its own initiative  by requiring the prosecutor
to ask for clarification from its  witness:


(Bench conference on the record)


The Court: This is--in NFL language, this is my time  out. There's been
a lot of sort of hinting around the  edges of the danger this guy was
in, and my concern, of  course, is that the implication of all of it
is that this  defendant is the one responsible for the danger. Now 
both sides have--both sides have toyed with this. I can't  unscramble
this egg. But there haven't been any objec- tions until now, but I
don't want this danger thing to be  played up.


Ms. Covell: I understand, Your Honor. My view is that  Mr. Miles opened
the door by asking him about the  payments for the move. I was going
to ask why and  make it clear--I can ask a follow-up question was it 
because of the defendant. He knows it wasn't because of  the
defendant.


The Court: That would be very helpful.


Ms. Covell: I can do that.


Mr. Miles: Okay.


(End of bench conference)


By Ms. Covell:


Q. What were the reasons that you moved Kevin Per- ry?


A. I felt that his life was in danger on several occasions.  That's why
I moved Mr. Perry.


Q. Were any of those occasions that you moved him a  result of any sort
of threat or danger that came from the  defendant?


Let me rephrase that: You never learned that the defen- dant had ever
threatened Mr. Perry in any way?


A. No.  Tr. at 48-49. Any residual problems lingering after the 
clarification certainly do not constitute plain error.


III. Conclusion


Because the District Court's alleged evidentiary failings do  not rise
to the level of plain error, Smith's conviction is


Affirmed.