United States v. Burch, Larry D.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 3, 1998 Decided October 9, 1998

No. 97-3032

United States of America,

Appellee

v.

Larry D. Burch,

Appellant

Consolidated with

No. 97-3157

Appeals from the United States District Court

for the District of Columbia

(No. 95cr00225-01)

Gary E. Guy, appointed by the Court, argued the cause

and filed the briefs for appellant.

David B. Goodhand, Assistant United States Attorney,

argued the cause for appellee, with whom Wilma A. Lewis,

United States Attorney, John R. Fisher, Thomas J. Tourish,

Jr., M. Evan Corcoran and Carolyn K. Kolben, Assistant

United States Attorneys, were on the brief. Ann L. Rosen-

field, Assistant United States Attorney, entered an appear-

ance.

Before: Wald, Williams and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: On December 6, 1995, a jury convict-

ed Larry Burch ("Burch") of possession with intent to distrib-

ute more than 50 grams of cocaine base in violation of 21

U.S.C. ss 841(a)(1) and 841(b)(1)(A)(iii) (1994), while acquit-

ting him on a charge of conspiracy to distribute and to

possess with intent to distribute cocaine base in violation of 21

U.S.C. s 846 (1994). While the defendant's direct appeal was

pending, he petitioned for a writ of habeas corpus under 28

U.S.C. s 2255 (1996), alleging both ineffective assistance of

counsel and prosecutorial misconduct. The district court

judge who presided over the defendant's trial denied the

petition on November 7, 1997. An order of this court, dated

January 27, 1998, consolidated the defendant's direct appeal

with his subsequent petition for a certificate of appealability

under 28 U.S.C. s 2253 (1996), necessary to appeal the denial

of his s 2255 motion.

In this consolidated appeal, the defendant challenges his

conviction on the basis of alleged errors made by the district

court in (1) holding that the defendant had made a knowing

and voluntary waiver of his rights under Rule 11(e)(6) of the

Federal Rules of Criminal Procedure and Rule 410 of the

Federal Rules of Evidence, such that statements made during

his plea hearing and subsequent debriefing could be offered

into evidence by the prosecution; (2) allowing evidence of the

defendant's prior conviction for attempted cocaine distribu-

tion into evidence under Rule 404(b) of the Federal Rules of

Evidence; and (3) denying a motion to suppress the fruits of

an August 11, 1995 search by officers of the Metropolitan

Police Department on the grounds that its execution at 11:00

p.m. violated federal law. He further asserts that his trial

counsel was constitutionally ineffective for failing to seek a

judicial hearing to enforce the terms of a plea agreement

signed by appellant and the United States Attorney's Office,

and for failing to complete the impeachment of a government

witness. Finally, he alleges that the prosecutor knowingly

sponsored false or misleading testimony by the same govern-

ment witness, and that this instance of prosecutorial miscon-

duct materially affected the outcome of his trial.1 Finding no

merit in any of these claims, we affirm the conviction and

deny the request for a certificate of appealability.

I. Background

In August of 1995, a confidential informant notified the

Metropolitan Police Department ("MPD") that crack cocaine

was being sold out of a residence at 446 N Street in north-

west Washington, D.C. In order to verify the allegation, the

MPD arranged for this "special employee" to make a con-

trolled purchase of narcotics from that location.2 When the

purchased substance tested positive for cocaine base, MPD

Sergeant Gerald G. Neill procured a warrant that authorized

a search of the premises "in the daytime/at any time of the

day or night." Before executing the warrant at approximate-

ly 11:00 p.m., Sergeant Neill and his fellow officers set up and

observed a second controlled purchase. After the special

employee handed MPD funds over to a figure who then

retreated into the house, the police officers announced their

presence and proceeded to conduct their search.

__________

1 Appellant makes a number of further claims, none of which

warrant discussion.

2 In the typical controlled buy, police officers will give a special

employee money with which to make a narcotics purchase. After

first searching that individual to ensure that he has neither money

nor drugs on his person, the officers will give him police department

dollars and then observe the consummation of the intended transac-

tion. Upon the special employee's return, the officers conduct a

second search so as to verify that the police money has been

exchanged for narcotics.

Through the open front door, Sergeant Neill observed a

woman descending the interior staircase, before halting her

downward progress and sprinting back up the stairs. He

followed the woman into an upstairs bedroom, where he found

and, after a brief altercation, subdued both the woman--

Oneida Bailey ("Bailey")--and the defendant. At that time,

Sergeant Neill and the two other officers conducted their

search of the premises, discovering: plastic bags containing

rocks of crack cocaine packaged in an eighth of an ounce

quantities commonly referred to as "eight balls," smaller

rocks of crack cocaine wrapped in plastic bags, two ziploc

bags containing cocaine powder, other plastic bags of various

sizes, a razor blade, a scale, and eight hundred and thirty

dollars, which included the MPD funds used by the special

employee. In total, the MPD recovered 50.58 grams of

cocaine base and 1.16 grams of cocaine powder. From the

bedroom, the police also seized two photographs of the defen-

dant, as well as several forms of identification containing his

name and the 446 N Street address.

Following his arrest, Burch entered into plea negotiations

with members of the United States ("U.S.") Attorney's Office,

culminating in an October 25, 1995 agreement in which he

pled guilty to possession with intent to distribute more than

50 grams of crack cocaine, count two of his four-count indict-

ment. Burch also agreed to assist law enforcement authori-

ties whenever and in whatever form the U.S. Attorney's

Office deemed appropriate. In return, the government

agreed to request the dismissal of the other three counts of

the indictment, to allow the defendant's presentence release

into the community to assist in undercover operations, and to

inform the U.S. Attorney's Departure Guideline Committee of

the nature and extent of the defendant's cooperation. Should

the Departure Committee determine that the defendant had

rendered substantial assistance to the investigation and pros-

ecution of another individual, it would file a motion pursuant

to 18 U.S.C. s 3553(e) (1994) in order to allow the sentencing

judge to depart downwards from the federal sentencing

guidelines.

Burch, however, did not prove particularly cooperative,

despite being informed by the trial judge on several occasions

that he faced a mandatory minimum sentence of twenty years

if he did not provide some opening for a downward departure

by assisting the government. He did outline the history of

his involvement in narcotics distribution in a debriefing ses-

sion with the Drug Enforcement Agency ("DEA"), discussing

the identity of his sources as well as the quantities of crack

cocaine that he typically purchased from them, but not much

more. The defendant's name came up in relation to a homi-

cide in May and June of 1996 and, at the government's

request, the court revoked his bond and detained him pending

sentencing. When questioned about the homicide, Burch was

not forthcoming, and told a story which he subsequently

recanted. On July 22, 1996, the Assistant U.S. Attorney

supervising the case filed a memorandum with the Departure

Committee outlining the limited nature of Burch's coopera-

tion. Eight days later, the defendant's trial counsel filed a

motion seeking to withdraw the guilty plea and alleging

Burch's innocence of the underlying narcotics offense. In the

motion, as well as in an August 1, 1996 letter addressed to the

trial judge, Burch disavowed any knowledge of the drugs

prior to their discovery by the MPD, and asserted that the

cocaine belonged to Bailey. He explained his guilty plea as a

product of threats by Bailey to implicate him as a part of her

own cooperation agreement with the government, coupled

with a belief that a jury would be more likely to credit her

testimony over his denial, given his status as a young black

male with a prior arrest for possession with intent to distrib-

ute crack cocaine.3

After a hearing, the trial court judge ultimately allowed

Burch to withdraw his plea pursuant to Rule 32(e) of the

Federal Rules of Criminal Procedure. "Implausible as Mr.

Burch's belated claim of innocence may seem, the Court will

__________

3 Appellant was arrested on June 5, 1994, on the same block as

the 446 N Street residence, for possessing 18 ziploc bags containing

crack cocaine. He later pled guilty to attempted possession with

intent to distribute crack cocaine.

give Mr. Burch his day in court." Memorandum Opinion and

Order, United States v. Burch, Crim. No. 95-225-01, at 5-6

(D.D.C. Oct. 8, 1996) ("Mem. Op."). However, as part of its

decision, the court stated that it would not allow him to

benefit from Federal Rules of Criminal Procedure Rule

11(e)(6) and Federal Rules of Evidence Rule 410's restriction

on the admissibility of statements made pursuant to a with-

drawn plea. Id. at 6. In his plea agreement, as well as in a

Rule 11 colloquy with the trial judge prior to entering the

plea, Burch specifically had waived his rights under Rules

11(e)(6) and 410. In allowing him to withdraw the plea, the

trial court announced its intention to hold the defendant to

this part of the agreement. See id. at 6-7. The court

ultimately ruled that statements made by appellant during

the October 25, 1995 plea hearing and a January 22, 1996

debriefing with the DEA could be used as part of the

prosecution's case-in-chief, while those made during plea ne-

gotiations taking place on October 24, 1995 could only be used

for rebuttal or impeachment purposes should the defendant

contradict them while on the witness stand.

After a three-day trial, a jury convicted the defendant of

possession with intent to distribute more than 50 grams of

crack cocaine, while acquitting him of conspiracy to do the

same. The trial judge subsequently imposed a sentence of

one hundred fifty one months imprisonment, to be followed

by five years of supervised release.

II. Discussion

A.Appellant's Evidentiary Challenges

1.The Withdrawn Plea

a. Waiver

Federal Rule of Criminal Procedure 11(e)(6) and Federal

Rule of Evidence 410 each restrict the admissibility in a trial

of a guilty plea previously withdrawn, as well as any state-

ments made during the discussions leading up to such a plea.

Appellant challenges the legality of his waiver of these rights

as a part of his guilty plea, asserting that he entered into the

plea agreement involuntarily.4 Appellant contends that Bai-

ley threatened to testify against him, and that he feared a

trial wherein her false testimony could lead to his conviction

on all four counts of his indictment. To avoid this jeopardy,

he claims, he accepted the U.S. Attorney's offer to plead

guilty to a single offense. Before reaching the question of

the voluntariness of the plea, however, we must first deter-

mine whether and for what purposes an individual can waive

the protections contained in Rules 11(e)(6) and 410.

The Supreme Court provided a partial answer in United

States v. Mezzanatto, 513 U.S. 196, 201 (1995), where it held

that the "provisions of those Rules are presumptively waiva-

ble...." Since "[a] criminal defendant may knowingly and

voluntarily waive many of the most fundamental protections

afforded by the Constitution," id., the Court reasoned that

evidentiary rules should be subject to a similar presumption.

__________

4 Rules 11(e)(6) and 410 restrict the admissibility of "any state-

ment made in the course of plea discussions ...," which appellant

interprets to encompass the October 24th plea negotiations, the

October 25th plea agreement, and the January 22nd DEA debriefing.

Because the trial judge only admitted the plea agreement and the

debriefing statements into evidence as part of the prosecution's

case-in-chief, the discussion of extending United States v. Mezza-

natto, 513 U.S. 196 (1995), contained in this subsection only refers

to those two items, and not to the plea negotiations. Moreover, the

Eighth, Tenth, and Eleventh Circuits have each held that state-

ments made after a plea agreement is reached are not entitled to

the Rules' protections, see United States v. Watkins, 85 F.3d 498,

500 (10th Cir.), cert. denied, 117 S. Ct. 269 (1996); United States v.

Lloyd, 43 F.3d 1183, 1186 (8th Cir. 1994); United States v. Knight,

867 F.2d 1285, 1288 (11th Cir. 1989), reasoning that "[o]nce a plea

contract is formed, the policy behind Rule 11(e)(6)--to allow a

defendant to freely negotiate without fear that statements will be

used against him--is no longer applicable." Id. Interpreting an

earlier version of Rule 11(e)(6), before a 1979 amendment estab-

lished its current form, this court drew a similar distinction. See

United States v. Davis, 617 F.2d 677, 685 (D.C. Cir. 1979). Here,

since we conclude that appellant waived the protections extended by

Rules 11(e)(6) and 410, we need not determine whether they would

While evidence of fraud or coercion can invalidate waiver

agreements, "absent some affirmative indication that the

agreement was entered into unknowingly or involuntarily, an

agreement to waive the exclusionary provisions of the plea-

statement Rules is valid and enforceable." Id. at 210.

As expansive as this language sounds, the Supreme Court

faced a narrower question in Mezzanatto than that which we

confront today. There, the prosecutor had required, as a

precondition to conducting plea negotiations, that the accused

agree to allow the use of any statements made over the

course of their discussions to impeach any contradictory

testimony given in the case of a trial. When the negotiations

faltered, the government prosecuted Mr. Mezzanatto for pos-

session with intent to distribute methamphetamine, and he

took the stand as part of his defense. On direct examination,

Mezzanatto denied having knowledge that the package he

sold to an undercover officer contained methamphetamine.

On cross-examination, and later with rebuttal witnesses, the

prosecutor impeached this testimony with Mezzanatto's state-

ments made during the plea negotiations. See id., at 198-99.

On appeal, then, the Supreme Court only had to decide

whether the protections contained in Rules 11(e)(6) and 410

could be waived for purposes of impeachment or rebuttal. In

the case at bar, by contrast, the district court allowed the

defendant's plea statement, as well as the conversations he

had during the January 22nd debriefing session with the DEA,

into evidence as a part of the prosecution's case-in-chief. See

12/4/96 Trial Tr. at 29-30.

Although we face here the additional question of whether a

defendant's Rule 11(e)(6) rights can be waived for purposes of

the prosecution's case-in-chief, our inquiry still begins with

Mezzanatto. Justice Thomas' opinion paints with broad

brush strokes, and its reasoning resonates beyond the precise

question upon which it ruled. In a one paragraph concurring

opinion, Justice Ginsburg, joined by Justices O'Connor and

Breyer, cautioned that the Mezzanatto decision did not ad-

dress the question of whether a waiver of Rule 11(e)(6) for

purposes of the prosecution's case-in-chief would be valid.

The concurrence raised the question of whether "a waiver to

__________

cover the January 22nd debriefing session, which occurred after the

plea agreement had been reached.

use such statements in the case-in-chief would more severely

undermine a defendant's incentive to negotiate," 513 U.S. at

211 (Ginsburg, J., concurring), than the waiver for impeach-

ment purposes sanctioned by the Court's decision, thereby

presenting a more pressing public policy justification for

disallowing a presumption of waivability.

On reflection, however, we cannot discern any acceptable

rationale for not extending the majority opinion in Mezzanat-

to to this case. Justice Thomas' opinion rests on three

principles. First, it finds that in the absence of an affirmative

indication that Congress intended to preclude or to limit the

waiver of statutory protections, including evidentiary rules,

voluntary agreements to waive these protections are pre-

sumptively enforceable. See Mezzanatto, 513 U.S. at 201-02.

Second, the opinion rejects the argument that Rules 11(e)(6)

and 410, as well as the Advisory Committee's Notes which

accompany them, express congressional disfavor towards

waivability. See id. at 208 n.5. Finally, the opinion stresses

that in weighing whether to override a presumption of waiva-

bility, a court should assess the public policy justifications, if

any, which counsel in favor of departing from that norm. See

id. at 204-10. Cumulatively, we believe these principles do

not countenance drawing any distinction in this case between

permitting waivers for purposes of impeachment or rebuttal

and permitting waivers for the prosecution's case-in-chief.

There are two arguments in favor of restricting the reach

of Mezzanatto to rebuttal and impeachment. They go like

this: First, in enacting Rules 11(e)(6) and 410, Congress has

signaled an intent to create rights that benefit both the

accused and the federal judicial system. Although most

personal rights are presumptively waivable, when rights

serve as a surrogate for protecting institutional interests, the

economic model of bargaining, see United States v. Wenger,

58 F.3d 280, 282 (7th Cir. 1995) ("Right holders are better off

if they can choose between exercising the right and exchang-

ing that right for something they value more highly.") does

not suffice. The Advisory Committee's Notes reference both

individual and systemic concerns, describing the purposes

behind the two rules as not to "discourage defendants from

being completely candid and open during plea negotiations,"

and "to permit the unrestrained candor which produces effec-

tive plea discussions." Fed. R. Crim. P. 11 Advisory Commit-

tee's Note (1979) (internal citations omitted). If extending

Mezzanatto would undermine Congress' attempt to promote

candid plea discussions, deference to congressional intent

could counter the presumption of waivability. We think that

there is a ready answer to this argument: the Mezzanatto

Court declined to read the Notes as mandating any default

rule against waiver, a position that Justice Souter staked out

in dissent. See 513 U.S. at 214 (Souter, J., dissenting) ("Since

the zone of unrestrained candor is diminished whenever a

defendant has to stop to think about the amount of trouble his

openness may cause him if the plea negotiations fall through,

Congress must have understood that the judicial system's

interest in candid plea discussions would be threatened by

recognizing waivers under Rules 410 and 11(e)(6)."). Accord-

ing to the Court, "[t]he Advisory Committee's Notes always

provide some policy justification for the exclusionary provi-

sions in the Rules, yet those policies merely justify the default

rule of exclusion; they do not mean that the parties can never

waive the default rule." Id. at 208 n.5. Since the Supreme

Court has already rejected congressional intent to promote

candor as a justification for refusing to enforce voluntary

waivers of these Rules in rebuttal, any argument relying on

that intent is too weak to justify refusing to allow use of the

plea statement in the government's case-in-chief. In any

event, the waiver in this case was part of the plea agreement;

it resulted from successful plea negotiations. During the

negotiations, the defendant was protected by Rules 11(e)(6)

and 410. Thus, it is difficult to see how the waiver in this

case could have reduced the "zone of unrestrained candor"

during negotiations, as the waiver in Mezzanatto, which was

secured by the prosecutor at the start of bargaining, arguably

did.

Second, while it is conceivable that sanctioning waivers for

the use of statements made during plea proceedings in the

prosecution's case-in-chief, as opposed to impeachment or

rebuttal, could have a markedly greater impact on the willing-

ness of defendants to participate in such negotiations, the

three-Justice concurrence in Mezzanatto presents no reason

why that would be the case. Nor has the appellant. Lacking

any evidence to the contrary, it seems unlikely to us that

most defendants would draw fine distinctions as to whether

statements made in the course of or after the plea proceeding

could be used in the government's case-in-chief or only in

rebuttal. It is true that the three concurring Justices in

Mezzanatto, whose votes were necessary for the majority,

expressed concern that admitting plea negotiation statements

in the case-in-chief would too severely undermine the defen-

dant's incentives to negotiate. See id. at 211. Such concern

is far less warranted with respect to a waiver, like the one in

this case, which is executed as a result of plea negotiations,

rather than as a condition for such negotiations. In any event,

allowing the government to bargain for a waiver during plea

negotiations certainly does not undermine the reliability of

the fact-finding process, the only institutional concern cited

by Mezzanatto as a potential counterweight to the presump-

tion in favor of waivability. See id. at 204 (some evidentiary

provisions are so fundamental that permitting their waiver

would discredit the integrity of the federal judicial process;

"if the parties stipulated to trial by 12 orangutans the defen-

dant's conviction would be invalid notwithstanding his con-

sent") (citations omitted). As a result, we can discern no

reason not to uphold the trial judge's ruling in this case that a

defendant can waive his rights under Rules 11(e)(6) and 410

to the extent of allowing statements made in the plea pro-

ceeding itself and in a subsequent debriefing to be used as

part of the prosecution's case-in-chief.

b. Knowing and Voluntary

Having decided that a defendant can affirmatively waive his

rights under Rules 11(e)(6) and 410 to allow his plea state-

ment to be admitted into evidence, we move on to appellant's

more basic contention that his waiver was involuntary. Be-

fore any waiver can be deemed unenforceable, Mezzanatto

held that a trial judge must find "some affirmative indication

that the agreement was entered into unknowingly or involun-

tarily." Id. at 210. For this indication, appellant relies on

the district court's decision to permit him to withdraw his

plea, alleging that it represents an implicit finding of involun-

tariness.5 The district court, however, gave no such indica-

tion. It characterized appellant's belated assertion of inno-

cence as both "implausible" and "hard to accept," Mem. Op.

at 5, and decided to grant him the opportunity to present his

case before a jury primarily because a trial represented

appellant's "only chance to avoid the draconian sentence

adopted by Congress for possession of crack cocaine by one

previously convicted of a drug offense." Id. at 6. Moreover,

it specifically warned him that it would allow all of appellant's

plea statements into evidence for impeachment, rebuttal, or

the case-in-chief in any future trial, an act that belies any

view that the plea or the waiver were coerced.

"This court reviews a trial judge's admission of evidence for

abuse of discretion," United States v. Smart, 98 F.3d 1379,

1386 (D.C. Cir. 1996), cert. denied, 117 S.Ct. 1271 (1997)

(citing United States v. Salamanca, 990 F.2d 629, 637 (D.C.

Cir.), cert. denied, 510 U.S. 928 (1993)); that standard is

easily satisfied here. Neither the Rule 11 plea colloquy

between the trial judge and appellant, nor the judge's order

permitting appellant to withdraw the plea, support in any way

appellant's contention that the plea itself was entered into

involuntarily. The trial court asked the appellant "has any-

body threatened you or forced you in any way to enter this

plea of guilty?" 10/25/95 Tr. at 17. "And are you pleading

__________

5 Appellant's specific contention that he involuntarily waived the

protections of Rules 11(e)(6) and 410 derives from his broader claim

that he did not enter into the plea agreement voluntarily. He

makes no attempt to deconstruct the plea agreement into individual

components, nor to claim that he acceded to a particular provision

involuntarily, independent of his intention with respect to the entire

plea. Therefore, we can only review whether his waiver was

knowing and voluntary through examining, as the trial court did,

the nature of the plea agreement that subsumes it. By contrast,

the waiver addressed in Mezzanatto had been negotiated separate-

ly, before the plea discussions began. Therefore, the Mezzanatto

Court could focus specifically on the voluntary nature of the waiver

of the nonadmissibility guarantees.

guilty voluntarily and because you are guilty?" Id. at 19.

Appellant answered both questions in the affirmative. The

trial judge also went through the specific terms of the plea

agreement with appellant, including the provision in which he

waived his rights under Rules 11(e)(6) and 410. When subse-

quently challenged, the judge characterized appellant's waiver

of his rights under Rules 11(e)(6) and 410 as "knowing and

voluntary," Mem. Op. at 7, and rejected the defendant's

motion to suppress on the grounds that "[t]here was nothing

wrong with the plea proceeding. There was nothing wrong

with [appellant's] understanding of what was going on. He

made the statements. He made those statements under

oath." 12/3/96 Trial Tr. at 75. The extensive colloquy con-

ducted by the trial court clearly supports this determination

that appellant knowingly and voluntarily waived his rights

under Rules 11(e)(6) and 410. In no way could such a

decision to permit the plea statement and the debriefings into

evidence constitute an abuse of discretion.

Our ruling is in accord with our own precedent. In United

States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995), the defendant

sought to withdraw his plea as the product of coercion due to

a co-defendant's alleged threats to testify against him in

return for a lesser sentence. See id. at 1205. We refused to

characterize the plea as involuntary, explaining that before

accepting his guilty plea, the trial court judge had conducted

a "textbook Rule 11 inquiry, taking pains to insure that the

defendant's submissions were knowing and voluntary." Id. at

1208. Since the trial judge's voluntariness determination

ultimately rested upon a credibility finding, this court refused

to disturb it absent clear evidence to the contrary. Id. at

1209 (citing the clearly erroneous standard utilized in United

States v. Lloyd, 868 F.2d 447, 451 (D.C. Cir. 1989)). See also

United States v. Hernandez, 79 F.3d 1193, 1195 (D.C. Cir.

1996) (where the trial court conducted an extensive Rule 11

colloquy and a hearing on the defendant's plea withdrawal

motion, there is no reason to cast doubt on the court's

conclusion that the plea was voluntary); United States v.

Woolley, 123 F.3d 627, 632-34 (7th Cir. 1997) (extensive and

careful Rule 11 colloquy conducted prior to accepting defen-

dant's guilty plea fully supports determination that defendant

accepted plea knowingly and voluntarily); United States v.

Clements, 992 F.2d 417, 418-19 (2d Cir. 1993) (extensive Rule

11 allocution fully established the voluntariness of defendant's

plea).

2.Prior Bad Acts

Appellant also challenges the district court's denial of his

motion in limine to exclude evidence of his prior arrest and

conviction for attempted possession with intent to distribute

crack cocaine, arguing that this "other crimes" evidence was

both irrelevant to the charges against him and more prejudi-

cial than probative. In addressing trial court determinations

on the admissability of bad acts evidence under of the Feder-

al Rules of Evidence, this circuit has employed a two-step

mode of analysis. Under the first step, which addresses Rule

404(b), "we must determine whether the evidence is relevant

to a material issue other than character." United States v.

Mitchell, 49 F.3d 769, 775 (D.C. Cir. 1995) (citations omitted).

See also Huddleston v. United States, 485 U.S. 681, 686

(1988) ("The threshold inquiry a court must make before

admitting similar acts evidence under Rule 404(b) is whether

that evidence is probative of a material issue other than

character."). "If so, we proceed to the second inquiry," under

Federal Rule of Evidence 403, "whether the probative value

is substantially outweighed by the prejudice." Mitchell, 49

F.3d at 775.

Here, appellant was tried for possession with intent to

distribute more than 50 grams of crack cocaine and conspira-

cy to possess and distribute the same. To establish the

requisite elements on the possession count, the government

needed to prove that appellant possessed crack cocaine know-

ingly and intentionally, and that when he possessed the

cocaine he had a specific intent to distribute it. See 21 U.S.C.

s 841(a)(1). In making the Rule 404(b) determination, the

trial judge concluded that "[t]he fact is that the evidence [of

appellant's prior conviction] is relevant to show knowledge

and intent which are elements that the Government must

prove.... It's within the very same block and it involved

again crack cocaine. And his knowledge and intent with

respect to crack cocaine is what is at issue here." 12/3/96

Trial Tr. at 42. Since the evidence of appellant's prior

conviction went beyond the issue of character, and went to

the issues of knowledge and intent which formed the basis of

appellant's trial defense, the prior conviction satisfies the first

step of the Mitchell analysis. See United States v. Harrison,

679 F.2d 942, 948 (D.C. Cir. 1982) ("The intent with which a

person commits an act on a given occasion can many times be

best proven by testimony or evidence of his acts over a period

of time prior thereto...."); United States v. Crowder, 141

F.3d 1202, 1208 n.5 (D.C. Cir. 1998) (in banc) ("A defendant's

hands-on experience in the drug trade cannot alone prove

that he possessed drugs on any given occasion. But it can

show that he knew how to get drugs, what they looked like,

where to sell them, and so forth.").

The second step of the analysis takes place under Rule 403,

and involves balancing the probative value of other crimes

evidence against its prejudicial effect upon the defendant.

See Fed. R. Evid. 403. Because this balancing involves a

highly subjective assessment, this court conducts its review

under a "grave abuse of discretion" standard. See Mitchell,

49 F.3d at 776. Here, the trial judge was clearly aware of the

potential danger for "jury misuse of the evidence," United

States v. Brown, 490 F.2d 758, 764 (D.C. Cir. 1973), and

crafted a careful limiting instruction to guide the jury away

from drawing a conclusion on the basis of character or

propensity. Given the likeness of the allegations, the similar

mode of packaging the crack cocaine for distribution, the

coincidence of the locations involved, and the corroboration

provided by appellant in his debriefing session with the DEA,

there is "no compelling or unique evidence of prejudice in this

case that warrants upsetting the trial court's determination."

United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir.

1992).

B.The Validity of the Warrant as Executed

Appellant also challenges the trial court's decision to permit

the fruits of the MPD search into evidence, attacking the

legal validity of both the underlying warrant and its nighttime

execution. While appellant contends that the validity of the

warrant's execution must be measured against federal stan-

dards because "a federal offense has been charged and the

trial was held in federal court," Appellant's Br. at 28, we need

not decide whether the warrant is federal or local, nor need

we choose between the federal and the local law standard to

measure the legality of its execution. The warrant and its

nighttime execution were valid under either regime.

Beginning with federal law, Rule 41 of the Federal Rules of

Criminal Procedure directs that a "warrant shall be served in

the daytime, unless the issuing authority, by appropriate

provision in the warrant, and for reasonable cause shown,

authorizes its execution at times other than daytime." Fed. R.

Crim. P. 41(c)(1). See also Fed. R. Crim. P. 41(h) (defining

"daytime" as "the hours from 6:00 a.m. to 10:00 p.m. accord-

ing to local time"). Nevertheless, in the face of a specific

statutory regime for an articulated class of offenses, the

general provisions contained in Rule 41 are displaced. See

United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997)

(holding that s 879 governs search for marijuana, rather than

Rule 41); Mason v. United States, 719 F.2d 1485, 1489 (10th

Cir. 1983) (interpreting Wyoming parallels to Rule 41 and

s 879 such that the specific statutory provisions sanctioning

nighttime search for controlled substances apply); United

States v. Alatishe, 616 F. Supp. 1406, 1411 (D.D.C. 1985)

("Where there is a specific statute relating to the issuance

and execution of search warrants, that particular statute as a

general matter controls over any more diffuse search warrant

legislation or policy."). This case provides an example.

21 U.S.C. s 879 instructs that a "search warrant relating to

offenses involving controlled substances may be served at any

time of the day or night if the judge or United States

magistrate issuing the warrant is satisfied that there is

probable cause to believe that grounds exist for the warrant

and for its service at such time." In Gooding v. United

States, 416 U.S. 430 (1974), the Supreme Court addressed the

interaction between Federal Rule of Criminal Procedure 41

and then 21 U.S.C. s 879(a).6 After noting that Rule 41 had

been amended subsequent to the passage of s 879(a), the

Court went on to hold that "Congress, as it had in the earlier

version of the Rule, nevertheless showed its clear intention to

leave intact other special search warrant provisions, includ-

ing, of course, the provisions relating to searches for con-

trolled substances." Id. at 453-54.

The Gooding Court confronted a fact pattern analogous to

the present case. There, an Assistant United States Attor-

ney had sought a warrant authorizing a search for narcotics,

and in support of his application presented an affidavit signed

by an undercover MPD officer alleging knowledge of the

possession and sale of drugs. The defendant challenged the

validity of the warrant for a search "at any time in the day or

night," 416 U.S. at 442, alleging that the magistrate failed to

make a special showing of need for its nighttime execution.

In the present case, appellant similarly reads the final clause

of s 879--requiring "that there is probable cause to believe

that grounds exist for the warrant and for its service at such

time"--as creating an obligation on the part of the govern-

ment to establish probable cause for a nighttime search.

While this certainly constitutes a plausible reading of the

statutory language, the Supreme Court has explicitly rejected

it. Speaking directly to the issue, the Court concluded "that

21 U.S.C. s 879(a) requires no special showing for a night-

time search, other than a showing that the contraband is

likely to be on the property or person to be searched at that

time." Id. at 458.7 Just as the prior controlled buy provided

__________

6 A 1974 amendment to 21 U.S.C. s 879(a) struck out the designa-

tion (a); the statutory provision at issue in Gooding and in the

present case are identical. See Pub. L. No. 93-481, s 3, 88 Stat.

1455 (1974).

7 In the present case, the district court judge assumed that in the

absence of a finding of time-related probable cause, a nighttime

search for narcotics could only be valid under District of Columbia

law. While the district court judge believed that a search pursuant

to 21 U.S.C. s 879 required that "an additional finding must be

made by the Magistrate before authorizing a nighttime execution of

the requisite "showing" in Gooding, so too does the previous

purchase of crack from the 446 N Street residence legitimate

the MPD's subsequent nighttime search under federal law.

Under District of Columbia law, the analysis comes out the

same. The District of Columbia Code parallels federal law, in

that it contains a background warrant provision in Title 23

s 521,8 as well as a particular provision directed at controlled

substances in Title 33 s 565.9 In United States v. Thomas,

294 A.2d 164, 167-68 (D.C. 1972), cert. denied, 409 U.S. 992

(1973), the District of Columbia Court of Appeals determined

that the specific provisions contained in Title 33 of the D.C.

Code are neither superceded nor qualified by the more

general provisions contained in Title 23. As both the warrant

in question and its underlying affidavit each assert a belief

that cocaine is being sold from the premises at 446 N Street,

the more specific provisions contained in D.C. Code

s 33-565(h) would apply. Moreover, the District of Columbia

Court of Appeals has also held that "once a judge has

determined that probable cause exists to search for drugs in

the District of Columbia, a search warrant may be issued.

Such a warrant may be executed at any time of the day or

night." Hines v. United States, 442 A.2d 146, 148 (D.C.

1982).10 According to the Court of Appeals, once a probable

__________

a warrant," 12/3/96 Trial Tr. at 66-67, Gooding specifically holds to

the contrary.

8 "A search warrant shall contain ... a direction that the warrant

be executed during the hours of daylight or, where the judicial

officers have found cause therefor, including one of the grounds set

forth in section 23-522(c)(1), and authorization for execution at any

time of day or night." D.C. Code Ann. s 23-521(f)(5) (1997).

9 "The judge or Magistrate shall insert a direction in the warrant

that it may be served at any time in the day or night." D.C. Code

Ann. s 33-565(h) (1997).

10 In Hines, a warrant office clerk, acting without instructions,

crossed out the 'at any time of the day or night' provision on the

warrant form. The Court of Appeals held that this inadvertent

ministerial mistake did not render the subsequent nighttime search

invalid. Id. at 149.

cause determination has been made, the issuing judge must

insert the "any time during the day or night" directive. "The

language [of D.C. Code s 33-565(h)] is mandatory." Id. at

149.

As both federal and local law specifically provide for night-

time narcotics searches, appellant's argument stands or falls

on its contention that the ambiguity resulting from Sergeant

Neill's failure to cross out the warrant's "daytime" clause

renders it invalid. Since neither of the potentially applicable

standards contain a time restriction, we do not believe that

this ministerial oversight in any way undermines the war-

rant's validity. Additionally, Sergeant Neill acted in good

faith. His belief, as the district court found it, "that he could

execute it at any time of the day or night since this was a

drug warrant ...," 12/3/96 Trial Tr. at 60, satisfies the

"objectively reasonable" test articulated in United States v.

Leon, 468 U.S. 897, 922 (1984).

C.Appellant's Petition for a Certificate of Appealability

Under 28 U.S.C. s 2253(c)(1)(B), an appeal cannot be taken

from a final order in a s 2255 habeas corpus proceeding

unless a circuit judge issues a certificate of appealability. 28

U.S.C. s 2253(c)(2) provides that a certificate may issue "only

if the applicant has made a substantial showing of the denial

of a constitutional right."

1.Ineffective Assistance of Counsel

In his s 2255 habeas corpus proceeding, appellant main-

tained that his trial counsel failed to satisfy the constitutional-

ly prescribed minimum standard for effectiveness. He con-

tinues to press this claim in his petition for a certificate of

appealability, challenging his counsel's failure: (i) to seek

enforcement of the contractual plea agreement between ap-

pellant and the government, or at the very least to seek an

evidentiary hearing through which appellant could establish

that the government's refusal to file a 5K1.1 motion constitut-

ed a breach; and (ii) to complete the impeachment of Oneida

Bailey with the notes from her debriefing session with the

DEA. Because neither of these alleged inadequacies, wheth-

er considered individually or in aggregate, suffice to establish

a claim for constitutional ineffectiveness under the standard

articulated in Strickland v. Washington, 466 U.S. 668 (1984),

we decline to issue a certificate of appealability for appellant's

Sixth Amendment claim.

In Strickland, the Supreme Court advised reviewing courts

that they need not undertake both components of the ineffec-

tive assistance inquiry should it prove possible to dispose of a

challenge on either of its prongs. See id. at 697. Appellant's

first assertion, that trial counsel should have sought to en-

force the plea agreement, falters in its inability to make the

requisite showing of prejudice--"that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at

694. A cursory comparison of the plea agreement's terms

with the actions taken by the U.S. Attorney's Office reveals

that the government fulfilled all of its responsibilities under

it.11 In particular, sections 9(d) and (e) provide that the

prosecutor "will inform the Departure Guideline Committee

of the United States Attorney's Office for the District of

Columbia the nature and extent of [appellant's] cooperation,

or lack thereof," and that he will file a motion pursuant to 18

U.S.C. s 3443(e) and s 5K1.1 of the federal sentencing guide-

lines should the Departure Committee determine "that [ap-

pellant] had provided substantial assistance in the investiga-

tion or prosecution of another person who has committed any

offense...." Appellee's App. at 022-23. The Assistant U.S.

Attorney involved in appellant's prosecution filed papers to

apprise the Departure Committee of appellant's progress, and

the Committee declined to authorize that any such motion be

filed with the court. Because the government complied with

__________

11 The plain language of the plea signed by Burch makes it clear

that he himself breached the agreement, first by failing to "cooper-

ate truthfully, completely and forthrightly with [the U.S. Attor-

ney's] Office and other Federal, state and local enforcement author-

ities whenever, wherever, and in whatever form this Office deems

appropriate,"--as required by section 3(a) of the plea--and later by

filing a motion to withdraw his plea--an act which section 5(a)

defines as a breach of the agreement. See Appellee's App. at 20-21.

the terms of the plea agreement, no effort by appellant's

counsel could have obtained an order for specific perfor-

mance.

Appellant next faults his trial counsel for failing to impeach

Bailey with notes from a DEA debriefing session. At trial,

appellant's defense centered around the argument that the

drugs recovered by the MPD belonged to Bailey. In addition

to so testifying, appellant developed this theory by arguing

that he no longer resided at the 446 N Street residence in

August of 1995, that the bedroom in which the cocaine was

discovered belonged to Bailey, that she had made numerous

drug sales earlier that day, and that she had recently pur-

chased a quantity of cocaine similar to the amount recovered

by the MPD. Notes from Bailey's DEA debriefing session

provided some support for the last contention, in that they

contained an entry, under the heading "Phil ... Source of

supply," that reads "62 grams--the most she's gotten from

him." Appellant's App. at 151. When cross-examining Bai-

ley, appellant's trial counsel repeatedly asked whether she

had ever obtained 62 grams of crack cocaine from Phil.12

__________

12 The exchanges read:

Q:Didn't you once get 62 grams or something in that range

from a guy named Phil?

A:Named Phil?

Q:Yes.

A:I didn't--I didn't get it from him but I know he had it.

Q:Did you ever get 62 grams from him or get something of

that amount from Phil?

A:No, but he sells it but I never got it from him.

Q:But on other occasions you got drugs from Phil?

A:Yes.

12/5/96 Trial Tr. at 33.

Q:Did you ever--do you remember ever telling an investiga-

tor at a meeting that you got 62 grams once from Phil?

A:No.

Q:Didn't you once tell an investigator that you got 62 grams

from Phil?

A:I never got that amount from him, never.

Though she answered in the negative, defense counsel did not

present her with a copy of the notes and ask her to explain

any disparity between the text and her testimony.

Appellant alleges that this failure by defense counsel to

produce the notes and to "complete the impeachment," Appel-

lant's Br. at 36, of Bailey's testimony constitutes an oversight

of constitutional magnitude. We cannot agree. Even if it

constitutes a failure of advocacy,13 appellant's claim cannot

negotiate the hurdle of Strickland's prejudice prong when

examined in light of the record as a whole. See Strickland,

466 U.S. at 695-96 (court looks to evidence in its totality when

assessing potential prejudice). In addition to his earlier

admission of guilt, the evidence marshaled against appellant

was substantial. Most important, the DEA agent who con-

ducted the January 22nd debriefing testified that appellant

admitted to owning the crack cocaine seized by the MPD, and

to having made his most recent buy just prior to his arrest.

__________

Q:Well, you never got an amount of that sort from Phil or

from--

A:And I don't remember telling the investigator that.

Q:You don't remember telling the investigator that either.

A:No.

Q:So you didn't get 62 grams from Phil or from anyone, is

that right?

A:No, I did not.

Q:And you don't remember telling any investigator that you

got 62 grams from Phil.

A:No.

Id. at 70-71.

13 The trial court denied appellant's s 2255 petition on the

grounds that defense counsel acted reasonably: "[W]ould a reason-

able effective counsel have showed her the debriefing note? I'd say

some would and some wouldn't." 11/7/97 Tr. at 50. Since we find

any effect of defense counsel's alleged errors insufficient to justify

overturning the jury's verdict, and "[f]ailure to make the required

showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim," Strickland, 466 U.S. at 700, we

need not pass judgment on the reasonableness of counsel's perfor-

mance.

According to the DEA agent, appellant also described his

source of cocaine base, the quantities he typically purchased

and their cost, as well as his subsequent distribution. When

Bailey testified that the cocaine belonged to appellant, she

merely corroborated evidence already presented to the jury

by numerous law enforcement officials.

Had defense counsel presented Bailey with the DEA de-

briefing notes and asked her to explain any disparity, that

impeachment would not have cast any doubt on the testimony

given by the various law enforcement witnesses. Since the

notes lack any temporal references about the 62 grams, even

if it could have been established that Bailey once received

that quantity of cocaine from a supplier named Phil, no

evidence links that receipt with the drugs appellant repeated-

ly admitted to owning.14 As for its capacity to vitiate Bailey's

credibility, we do not believe that the introduction of the DEA

notes could have undermined her reliability significantly more

than the testimony she had already given. Bailey admitted

that she was intoxicated with a controlled substance on the

night of the arrest, that she had participated in narcotics

transactions which provided the basis for the search warrant

and her arrest, that she had been convicted of possession with

intent to distribute in the past, that she was cooperating with

the government in return for a lighter sentence, and that she

had broken the terms of her own plea agreement by continu-

ing to use drugs and by being rearrested for heroin posses-

sion. Viewed in light of the overwhelming evidence against

appellant, including his previous admission not just of the fact

but the details of his guilt, we cannot find that there is a

reasonable probability that, had Bailey been confronted with

__________

14 The only temporal reference consists of the statement "last

contact--$150 purchase 8-ball in August." Appellant's App. at 151.

Testifying at appellant's s 2255 hearing, the DEA agent who de-

briefed Bailey interpreted her notes to mean that any receipt of 62

grams would have had to have taken place prior to August. How-

ever, as she had no specific recollection of her conversation with

Bailey, she could offer only her best reconstruction of the notes.

the DEA notes, the jury verdict would have been any differ-

ent. See Strickland, 466 U.S. at 694.

2.Prosecutorial Misconduct

Finally, appellant asserts that the prosecutor violated his

Fifth Amendment right to due process of law by knowingly

sponsoring, or by failing to correct, the allegedly false testi-

mony of a government witness. Rehearsing the substance of

his ineffective assistance claim, appellant highlights the dis-

crepancy between Bailey's trial testimony and the DEA de-

briefing notes on the subject of whether she received drugs

from Phil. He goes on to argue that, under Napue v.

Illinois, 360 U.S. 264 (1959), the prosecution had a duty to

alert the court to Bailey's prior inconsistent statement. See

also United States v. Iverson, 637 F.2d 799, 803 n.10 (D.C.

Cir. 1980) ("[T]he prosecutor had an independent responsibili-

ty to alert the Court and jury to the truth."), modified on

petition for reh'g, 648 F.2d 737 (D.C. Cir. 1981). Rather than

pointing out the disparity, appellant alleges that the prosecu-

tion exacerbated the deception by leading Ms. Bailey through

the following rehabilitating exchange:

Q:Did you ever tell a DEA agent you thought a guy

named Phil might have 62 grams of crack?

A:Yeah, when they asked.

12/5/96 Trial Tr. at 71. From this alleged failure by the

prosecution to fulfill its affirmative obligation to correct the

record when a government witness testifies falsely, appellant

deduces a violation of due process. We disagree.

Even if appellant could establish that the prosecution either

sponsored or failed to correct false testimony,15 he cannot

satisfy the materiality test for prosecutorial misconduct artic-

__________

15 Without passing judgment on this question, we note that the

district court, in addressing appellant's s 2255 motion, specifically

concluded that the prosecutor did not knowingly sponsor false

testimony. "We still don't know that this is false testimony....

Nothing I've heard in the last two days indicates to me that there

was false testimony given at trial." 11/7/97 Tr. at 20-21.

ulated in Napue and reiterated in Giglio v. United States, 405

U.S. 150, 154 (1972) and United States v. Agurs, 427 U.S. 97,

112-13 (1976). Before finding an error of constitutional

significance, Giglio directs that a reviewing court must deter-

mine whether "the false testimony could in any reasonable

likelihood have affected the judgment of the jury." Id. at 154

(citations omitted). Although the prosecutor and defense

counsel have different obligations, in this instance we believe

that our discussion of appellant's ineffective assistance of

counsel claim effectively settles the issue. Just as we cannot

find a reasonable probability that the jury verdict would have

differed had defense counsel confronted Bailey with the notes,

we cannot discern a reasonable likelihood of a different

judgment even if appellant's interpretation of the notes had

been expressed to the jury.

Appellant offers two theories as to how the prosecutor's

allegedly improper question satisfies the Giglio materiality

standard. We reject each in turn. First appellant asserts

that if the jury had been apprised of the DEA notes, it could

have equated the transaction referred to in the notes with the

drugs seized by the MPD, whether or not Bailey admitted to

receiving 62 grams of cocaine on the stand. However, appel-

lant admitted ownership of these specific drugs not merely in

his guilty plea, but also in his more detailed debriefing

session with the DEA. Moreover, Bailey did testify to pur-

chasing large amounts of crack cocaine on previous occasions.

Even if the jury had been made aware that she told the DEA

agent that she had received 62 grams from Phil at some

point, we do not believe that this additional admission would

have cast any appreciable doubt upon the solid evidence

establishing appellant's guilt. Second, appellant claims that

the prosecutor's question served to rehabilitate Bailey's credi-

bility as a witness, such that the jury was more likely to

credit her testimony against appellant. However, at this

point Bailey's credibility had been thoroughly compromised

by her own admissions of prior drug use and dealing, and we

doubt any attempt at rehabilitation--if that it was--through

rephrasing a single question peripheral to the main issue of

the trial could have influenced the jury in its final verdict.16

See discussion infra pp. 23-24.

III. Conclusion

For reasons explained, we reject all of Burch's contentions

and affirm his conviction. Because appellant has failed to

make a substantial showing of the denial of any constitutional

right, we decline to issue a certificate of appealability and

affirm the dismissal of his petition for a writ of habeas corpus.

So ordered.

__________

16 By contrast, in Giglio and Napue, prosecution witnesses falsely

denied that they had been promised lenient treatment, see Giglio

405 U.S. at 152-53, and a recommendation of a reduced sentence,

see Napue, 360 U.S. at 266-67, in return for their testimony.