United States v. Foster

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Foster No. 02-3859
ELECTRONIC CITATION: 2004 FED App. 0230P (6th Cir.)
File Name: 04a0230p.06 STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Robert A. Dixon, Cleveland, Ohio, for
Appellant. Joseph P. Schmitz, ASSISTANT UNITED
UNITED STATES COURT OF APPEALS STATES ATTORNEY, Cleveland, Ohio, for Appellee.
FOR THE SIXTH CIRCUIT _________________
_________________
OPINION
UNITED STATES OF AMERICA , X _________________
Plaintiff-Appellee, - KAREN NELSON MOORE, Circuit Judge. Defendant-
-
- No. 02-3859 Appellant Derrick L. Foster (“Foster”) appeals his convictions
v. - for unlawful possession of a firearm and possession with
> intent to distribute phencyclidine (“PCP”). After approaching
, Foster to ask him some questions, the police detected the
DERRICK L. FOSTER, -
Defendant-Appellant. - smell of PCP coming from his person. The officers
proceeded to conduct an investigative stop of Foster, which
N led to the discovery of marijuana, PCP, and a handgun.
Appeal from the United States District Court Foster was arrested, and after a jury trial, convicted. He raises
for the Northern District of Ohio at Cleveland. three issues on appeal: (1) the district court erred when it
No. 01-00183—Solomon Oliver, Jr., District Judge. denied his motion to suppress evidence used at trial to convict
him; (2) the district court erred when it admitted “other acts”
Argued: March 12, 2004 evidence in violation of the Fifth and Fourteenth
Amendments by allowing the impeachment of a defense
Decided and Filed: July 20, 2004 witness by the government; and (3) Foster’s trial counsel
provided ineffective assistance of counsel in violation of the
Before: NELSON, MOORE, and FRIEDMAN, Circuit Sixth Amendment. We AFFIRM the district court’s denial
Judges.* of Foster’s motion to suppress, as well as its decision to
permit impeachment of the defense witness by the
_________________ government. We do not address the ineffective-assistance-of-
counsel claim because the record is inadequate for appellate
COUNSEL review.
ARGUED: Robert A. Dixon, Cleveland, Ohio, for I. BACKGROUND
Appellant. Joseph P. Schmitz, ASSISTANT UNITED
On December 13, 2000, Cleveland Police officer Timothy
Higgins (“Higgins”), along with fellow officers Baker
*
(“Baker”) and Hupka (“Hupka”), was on foot patrol in the
Daniel M. Friedman, Circuit Judge of the United States Court of area of 9310 Amesbury Avenue, in which there was a
Appeals for the Federal Circuit, sitting by designation.
1
No. 02-3859 United States v. Foster 3 4 United States v. Foster No. 02-3859
residential apartment complex. Higgins belonged to the Fifth About a minute into the conversation, Foster indicated that
District, Fresh Start Unit, which “is a unit that answers and he wanted to return to his vehicle.3 Foster contests this
responds to quality of life issues” like “drug activity, loud statement, claiming that he disavowed ownership of the
music, drinking and gambling.” Joint Appendix (“J.A.”) at vehicle. At this time, Higgins handcuffed Foster and
60-61 (Suppression Tr.). Higgins had been in this particular conducted a pat-down of Foster’s person for weapons.
area of Cleveland many times before in response to Higgins said he did this because in his experience, people
complaints of drug activity. Those past visits had involved an under the influence of PCP had the tendency to become
estimated eighty-five arrests for PCP in that particular violent, so he wanted to ensure that Foster was not armed.
apartment complex. On December 13, Higgins was Asked what his plan of action was, Higgins said that he
responding to a complaint that had been logged at the end of “identified the smell, and [Foster] couldn’t identify who he
November 2000. The complaint failed to identify any was.” J.A. at 76 (Suppression Tr.). “I wanted to find out
particular individuals. exactly who he was, and with his nervousness, the smell, the
nervousness, and he’s unable to identify who he was, I wasn’t
Higgins testified that at around 5:00 pm that day, he and sure if he was hiding from a warrant, or what exactly was
other members of his team observed Foster emerge from a going [on] at this time, so I needed to investigate a little bit
parked vehicle that was still running.1 The subject walked further to find out —.” J.A. at 76 (Suppression Tr.). Higgins
towards a dumpster surrounded by a brick enclosure. The then heeded Foster’s request, as it was cold out and Foster
officers walked towards the dumpster area because in their was wearing only a tee shirt despite the December weather,
“experience . . . sometimes [drug traffickers] hide PCP in the and went to place Foster in the subject’s car for a period until
Dumpster area.” J.A. at 66 (Suppression Tr.). Foster then the officers could get to their car, which was parked several
walked away from the dumpster area and approached the blocks away. Up until this point, Higgins had never told
officers. Higgins testified that as soon as he was face to face Foster that the latter was under arrest. Instead, Higgins told
with Foster, he could smell PCP coming from Foster’s Foster that “[Higgins was] going to check out who [Foster]
person. Baker, who was acting as Higgins’s cover officer was and that [Higgins] needed to handcuff [Foster] to make
while Higgins made contact with Foster, also noticed a strong sure there weren’t any weapons that he could access.” J.A. at
odor of PCP coming from Foster. Higgins proceeded to ask 81 (Suppression Tr.).
Foster his name, what he was doing there, and whether he had
any identification on him. Foster replied that he was looking When Higgins opened the driver’s side door of Foster’s car,
for a cell phone in the dumpster2 and said he did not have any he was instantly hit with the smell of marijuana.4 Higgins
identification on his person. Higgins said Foster appeared
nervous throughout this encounter.
3
Baker testified at the supp ression hearing that Fo ster made this
request because he was cold.
1 4
Officer Baker testified that he never saw Foster emerge from the At trial, Higgins said he detected “fresh” marijuana. J.A. at 128
vehicle. (Trial Tr.). However, at the suppression hearing, he simply said he
2
detected the smell of marijuana. Baker, when testifying at the suppression
Foster’s ex-girlfriend, Bridgette Glover, testified that she had hearing, described the smell as “burnt marijuana coming from the
thrown his cell phone into the dumpster that day because she was mad at vehicle.” J.A. at 103 (Suppression Tr.). However, he claimed to have
Foster, and that is why he was out looking in and around the dumpster. detected the smell as the group approached Foster’s car and said it was
No. 02-3859 United States v. Foster 5 6 United States v. Foster No. 02-3859
then asked Foster if there was marijuana in the car, to which The district court had jurisdiction pursuant to 18 U.S.C.
Foster responded that there was some, and that it was located § 3231. This court has jurisdiction pursuant to 28 U.S.C.
in the console on the floor. As Higgins leaned into the § 1291.
vehicle to retrieve the marijuana, he noticed a gun under the
driver’s seat. Higgins picked up the gun and removed the II. ANALYSIS
magazine from the gun along with a live round. The live
round fell on to the seat of the car, and as Higgins went to A. Motion to Suppress
pick it up, he saw two vials of PCP and an eye dropper
between the seat and the door of the vehicle. It was at this 1. Standard of Review
time that Foster was arrested and administered Miranda
warnings.5 A subsequent search of Foster’s person revealed “When reviewing the denial of a motion to suppress, we
$751 in cash. review the district court’s findings of fact for clear error and
its conclusions of law de novo.” United States v. Hurst, 228
On April 18, 2001, an Indictment was issued charging F.3d 751, 756 (6th Cir. 2000) (citing United States v.
Foster with two counts of criminal activity. Count One Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). With
charged Foster with violation of 18 U.S.C. § 922(g)(1), which regard to Terry-stop analysis in particular, “[a]lthough the
makes it unlawful for a person “who has been convicted in standard of review on the ultimate reasonable suspicion
any court of[] a crime punishable by imprisonment for a term inquiry is de novo, the district court is at an institutional
exceeding one year . . . to ship or transport in interstate or advantage, having observed the testimony of the witnesses
foreign commerce, or possess in or affecting commerce, any and understanding local conditions, in making this
firearm . . . .” 18 U.S.C. § 922(g)(1). Count Two charged determination. Accordingly, ‘due weight’ should be given to
Foster with violation of 21 U.S.C. § 841(a)(1), possession the inferences drawn from the facts by ‘resident judges.’”
with intent to distribute PCP. Foster filed a motion to United States v. Townsend, 305 F.3d 537, 542 (6th Cir. 2002)
suppress the evidence found in his car, claiming he had been (quoting Ornelas v. United States, 517 U.S. 690, 698 (1996)).
the victim of an illegal search and seizure. An evidentiary Finally, the evidence must be reviewed “in the light most
hearing was held on December 5, 2001, and on January 23, likely to support the district court’s decision.” Navarro-
2002, the court issued an order denying the motion. After a Camacho, 186 F.3d at 705 (quoting United States v. Braggs,
jury trial, Foster was found guilty as charged and on July 23, 23 F.3d 1047, 1049 (6th Cir. 1994)).
2002, was sentenced to two hundred and sixty-two months’
imprisonment. Foster then filed this timely appeal. 2. Factual Disputes
Foster begins by claiming that the district court committed
clear error with regard to two factual findings. Specifically,
Foster alleges that although Higgins testified that he saw
Foster emerge from the vehicle, Baker testified that he never
com ing from the vehicle’s wind ow, which wa s slightly “crac ked.” saw Foster come out of the car in question. This is relevant
because Foster later denied ownership of the vehicle and its
5 contents. The second allegation of fact-finding error concerns
Baker testified that Foster was arrested after the gun was found and
before the vials of PCP were detec ted. A search subseque nt to the arrest conflicting testimony of Higgins and Baker regarding the
uncovered the PCP , according to Baker.
No. 02-3859 United States v. Foster 7 8 United States v. Foster No. 02-3859
smell of the marijuana coming from Foster’s car, and the time was entitled to credit the testimony of Higgins that he saw
during the encounter with Foster that each officer smelled it. Foster exit the vehicle. After all, the district court is “in the
Higgins testified at trial that he smelled fresh marijuana when best position to judge credibility,” United States v. Bradshaw,
he opened the car door, while Baker testified at the 102 F.3d 204, 210 (6th Cir. 1996), and “this court accords
suppression hearing that he smelled burnt marijuana coming great deference to such credibility determinations.” Navarro-
from the “cracked” window as he walked over to the car. Camacho, 186 F.3d at 705. Higgins’s testimony, while
different from Baker’s, does not necessarily even conflict
“A factual finding will only be clearly erroneous when, with Baker’s, for each officer reported from his own
although there may be evidence to support it, the reviewing perspective. Accordingly, the district court did not clearly
court on the entire evidence is left with the definite and firm err.
conviction that a mistake has been committed.” Navarro-
Camacho, 186 F.3d at 705. Furthermore, as stated above, the 3. The Initial Encounter
evidence must be viewed on appeal “in the light most likely
to support the district court’s decision.” Id. (quotation Foster asserts that the police violated the Fourth
omitted). Amendment during their initial encounter with him. “‘[L]aw
enforcement officers do not violate the Fourth Amendment by
Under this standard of review, we cannot say that the merely approaching an individual on the street or in another
district court clearly erred. Regarding the conflicting public place, by asking him if he is willing to answer some
descriptions concerning the timing at which the officers questions, [or] by putting questions to him if the person is
smelled the marijuana, the district court noted this willing to listen.’” Illinois v. Lidster, 124 S. Ct. 885, 890
inconsistency. However, it seems clear from the district (2004) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
court’s decision that it, quite appropriately, did not believe “[P]olice questioning, by itself, is unlikely to result in a
that this discrepancy made any difference to the fact that Fourth Amendment violation.” Immigration &
marijuana was detected in Foster’s vehicle, thereby providing Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984).
the officers with probable cause to search the vehicle. As A consensual encounter can ripen into a seizure if “in light of
regards the different descriptions of the smell of the all of the circumstances, [] ‘a reasonable person [would] have
marijuana, this conflict stems from comparing testimony believed that he or she was not free to walk away.’” United
provided by Baker at the suppression hearing with testimony States v. Grant, 920 F.2d 376, 382 (6th Cir. 1990) (quoting
given by Higgins at the trial. At the suppression hearing United States v. Saperstein, 723 F.2d 1221, 1225 (6th Cir.
Higgins testified to smelling marijuana, without specifying 1983)).
whether it was fresh or burnt. Even if we were to consider the
trial testimony, we do not see any significant conflict that Higgins’s initial contact with Foster failed to rise to the
would alter the outcome, for in any event, marijuana was level of a Fourth Amendment violation. When Higgins first
detected as emanating from Foster’s car and was ultimately addressed Foster, Higgins asked Foster his name, what he was
discovered in it. Whether it was burnt or fresh-smelling doing there, and whether he had any identification on him.
marijuana does not change this. This is permitted under Fourth Amendment precedent. See
Hiibel v. Sixth Judicial Dist. Ct. of Nev., 124 S. Ct. 2451,
As for the testimony of Higgins that he saw Foster exit the 2458 (2004) (“In the ordinary course a police officer is free to
vehicle, while Baker testified that he did not, the district court ask a person for identification without implicating the Fourth
No. 02-3859 United States v. Foster 9 10 United States v. Foster No. 02-3859
Amendment.”). Therefore, at this point in the encounter, F.2d 285, 290 (6th Cir. 1988) (quoting United States v.
Higgins’s actions towards Foster were lawful. Cortez, 449 U.S. 411, 418 (1981)). Additionally, the
authority to conduct a Terry stop is “narrowly drawn” so as to
4. The Terry Stop “permit a reasonable search for weapons for the protection of
the police officer, where he has reason to believe that he is
Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), “where a law dealing with an armed and dangerous individual, regardless
enforcement officer lacks probable cause, but possesses a of whether he has probable cause to arrest the individual for
reasonable and articulable suspicion that a person has been a crime.” Terry, 392 U.S. at 27. Finally, “[i]n assessing
involved in criminal activity, he may detain the suspect whether a detention is too long in duration to be justified as
briefly to investigate the suspicious circumstances.” United an investigative stop, we consider it appropriate to examine
States v. Bentley, 29 F.3d 1073, 1075 (6th Cir. 1994). United whether the police diligently pursued a means of investigation
States v. Hurst accurately summarizes the relevant law: that was likely to confirm or dispel their suspicions quickly,
during which time it was necessary to detain the defendant.”
[A]n investigative detention is permissible when it is United States v. Sharpe, 470 U.S. 675, 686 (1985).
based upon “specific and articulable facts which, taken
together with rational inferences from those facts,” give The district court concluded that the officers had reasonable
rise to a reasonable suspicion that the individual is, was, suspicion to justify a Terry stop. Based on the factors known
or is about to be engaged in criminal activity . . . . In to the officers at the time — that Foster smelled strongly of
reviewing a challenged investigative stop, “the totality of PCP, that he appeared nervous, that the area they were in was
the circumstances — the whole picture — must be taken notorious for heavy drug trafficking, and that Higgins knew
into account.” . . . Furthermore, “[i]n assessing the that drug traffickers would hide PCP in or near the apartment
reasonableness of the stop, the facts are ‘judged against complex dumpsters — the court concluded that all of this
an objective standard: would the facts available to the “amount[ed] to reasonable suspicion such that the scope of
officer at the moment of the seizure or the search the initial stop could properly be expanded.” J.A. at 55. The
“warrant a man of reasonable caution in the belief” that court also noted that the length of Foster’s detention did not
the action taken was appropriate?’” exceed the bounds of reasonableness, as the encounter lasted
no more than four minutes.
228 F.3d at 757 (quotations omitted).
Foster argues that the officers lacked the reasonable
An officer who decides to conduct a Terry stop must be suspicion necessary to justify a Terry stop. He asserts that by
acting on more than his or her “inchoate and unparticularized the officers’ own testimony, they “indicated that they
suspicion or ‘hunch,’ but [on] the specific reasonable handcuffed Mr. Foster before conducting the supposed Terry
inferences which he is entitled to draw from the facts in light pat-down. When that procedure yielded no weapons or
of his experience.” Terry, 392 U.S. at 27 (emphasis added). contraband, police continued to keep him handcuffed.
“That level of suspicion is considerably less than proof of Clearly he was under arrest from the moment that he was
wrongdoing by a preponderance of the evidence.” United handcuffed.” Appellant’s Br. at 16-17. Foster further argues
States v. Sokolow, 490 U.S. 1, 7 (1989). “[A] pattern of that as he was arrested from the outset of the confrontation
suspicious behavior need only be recognizable by one ‘versed with the officers, and the arrest lacked probable cause, it was
in the field of law enforcement.’” United States v. Knox, 839 illegal, and therefore “[a]ny evidence gained as a result of that
No. 02-3859 United States v. Foster 11 12 United States v. Foster No. 02-3859
illegal arrest should have been suppressed as ‘fruit of the stop based on the reasonable inferences he may draw “in light
poisonous tree.’” Appellant’s Br. at 17. The government, on of his experience,” Terry, 392 U.S. at 27, Higgins’s eighty-
the other hand, argues that the district court’s conclusion that five previous PCP-related arrests in that particular apartment
the officers had reasonable suspicion sufficient to justify a complex are relevant experiences.
Terry stop was correct and should be upheld.
Foster argues that once the police conducted a pat-down of
We conclude that the district court did not err in his person, “any suspicion so as to justify further intrusion
determining that the Terry stop was based on a reasonable was eviscerated.” Appellant’s Br. at 21. However, the police
suspicion that Foster was engaged in criminal activity. were still entitled to determine whether he was indeed under
Specifically, we emphasize that the officers’ detection of the the influence of PCP, and the pat-down for weapons in no
odor of PCP emanating from Foster’s person gave the officers way either confirmed or dispelled that suspicion. As stressed
the authority to detain Foster temporarily to determine his in Berkemer v. McCarty, 468 U.S. 420, 439 (1984), a Terry
identity, confirm that he was capable of driving his vehicle, stop permits law enforcement to “detain [a] person briefly in
and more importantly, either confirm or dispel their initial order to ‘investigate the circumstances that provoke
inclination that Foster was under the influence of PCP.6 suspicion.’” Id. (quoting United States v. Brignoni-Ponce,
Because a Terry stop is justified “by some objective 422 U.S. 873, 881 (1975)) (emphasis added). Hence, patting
manifestation that the person stopped is, or is about to be, down the subject of a Terry stop does not signal the end of the
engaged in criminal activity,” Cortez, 449 U.S. at 417, the detention, for law enforcement is permitted to investigate the
fact that Foster smelled of PCP, an illegal substance, alone circumstances that led them to stop the individual. A pat-
warrants the officers detaining him to investigate the situation down for weapons is only part of the detention. “[W]hen a
further.7 Moreover, because an officer may conduct a Terry law enforcement officer no longer has any reasonable
suspicion of criminal activity, the detained individual is
constitutionally free to leave.” United States v. Erwin, 155
6
F.3d 818, 823 (6th Cir. 1998) (en banc). Clearly, the pat-
Foster argues that pursuant to United States v. Wood, 106 F.3d 942 down did not end Higgins’s reasonable suspicion of Foster.
(10th Cir. 19 97), nervo usness is a factor of limited significance because “To have simply sent [Foster] on his way, without brief
many individuals will display it when having an encounter with police.
Id. at 948. For purposes of this decision we need not consider Fo ster’s further questioning at the very least, would have been plainly
nervousne ss or the assertion that this was a known drug area as factors unreasonable, even inept, police work.” Id.
warranting inclusion in the Terry-stop calculus.
As for the fact that Foster was handcuffed during the
7
Foster asserts that the officers never claimed that “they feared for detention, according to Higgins’s testimony, this was done
their safety such as to justify a Terry pat-down.” Appellant’s Br. at 19. only after Foster asked to return to his vehicle. On this point,
However, the law does not require that the officers affirmatively state in Higgins testified that “[his] initial reasoning for going to the
advance that they are fearful tha t the suspect is arm ed in o rder to
legitimize a Terry stop. Rather, an officer is permitted to conduct “a
car was the elements and it was cold out.” J.A. at 91
reasonable search for weapons for [his or her] protection . . . , where he (Suppression Tr.). Higgins also testified that in his
[or she] has reason to be lieve that he [or she] is dealing with an armed and experience, people under the influence of PCP can become
dangerous individual.” Terry v. Oh io, 392 U.S. 1, 27 (1968). Here, violent, and therefore he wanted to ensure that Foster was not
Higgins testified that previous dealings with people under the influence armed. Therefore, he handcuffed Foster and conducted a
of PCP led him to feel that Foster posed a potential threat of violence,
thereby warran ting a pat-down for any conce aled weap ons.
protective pat-down of his person, and then subsequently
No. 02-3859 United States v. Foster 13 14 United States v. Foster No. 02-3859
placed him in his car until the closest patrol car, which was because he was cold.9 Higgins, considering this and knowing
several blocks away, arrived.8 that people on PCP can become extremely violent, handcuffed
Foster not only to conduct the pat-down but also to be able to
Terry spoke to this very situation: place Foster in his car and out of the cold, without having to
worry about the possible weapons in Foster’s car that he
When an officer is justified in believing that the could reach. Second, in light of the situation, it appears that
individual whose suspicious behavior he is investigating Higgins made a quick call in a threatening situation, to ensure
at close range is armed and presently dangerous to the the safety not only of himself but also his fellow officers.
officer or to others, it would appear to be clearly This Circuit has stated that it is inappropriate, “in the quietude
unreasonable to deny the officer the power to take of our chambers, to second-guess standard police procedure
necessary measures to determine whether the person is in and [] on-the-scene judgment.” United States v. Bradshaw,
fact carrying a weapon and to neutralize the threat of 102 F.3d 204, 212 n.19. In addition, as regards the use of the
physical harm. handcuffs specifically, this Circuit has previously held that
“the use of handcuffs [does not] exceed the bounds of a Terry
Terry, 392 U.S. at 24. In Terry, the officer had reasonable stop, so long as the circumstances warrant that precaution.”
suspicion that the subjects he was observing were armed and Houston v. Clark County Sheriff Deputy John Does 1-5, 174
dangerous. Id. In the present situation, Higgins had reason F.3d 809, 815 (6th Cir. 1999). In this case, it seems
to think that Foster could be dangerous, based on his reasonable that Higgins believed that handcuffing Foster was
experience in dealing with people under the influence of PCP. the only way to secure the situation. Accordingly, the district
As in Terry, “the record evidences the tempered act of a court did not err when it concluded that this was a legitimate
policeman who in the course of an investigation had to make Terry stop.
a quick decision as to how to protect himself and others from
possible danger, and took limited steps to do so.” Id. at 28. 5. The Search of Foster’s Vehicle
The Supreme Court has repeatedly stressed that “it is
unreasonable to prevent the police from taking reasonable Finally, Foster argues that because he was illegally arrested,
steps to protect their safety,” and that in so doing, they should the subsequent search of his vehicle was unlawful. However,
not have to “decide instantaneously what ‘less intrusive’ as established above, Foster’s detention was not an arrest, but
alternative exists to ensure that any threat presented by the was a valid and lawful Terry stop. Accordingly, when the
suspect will be neutralized.” Michigan v. Long, 463 U.S. officers detected the smell of marijuana coming from Foster’s
1032, 1052 n.16 (1983). vehicle, this provided them with probable cause to search the
vehicle without a search warrant. See United States v. Garza,
We do not believe that Higgins overstepped the permissible 10 F.3d 1241, 1246 (6th Cir. 1993); see also United States v.
bounds of the Terry doctrine by handcuffing Foster. First, it Elkins, 300 F.3d 638, 659 (6th Cir. 2002). This therefore
was Foster who made the request to be returned to his vehicle
9
It cannot be said that Foster was arrested when he was place d in his
own vehicle, especially in light of the fact that “detention in a police
8
cruiser does not automatically transform a Terry stop into an arre st.”
Higgins said that Foster was p laced in his own vehicle only until Houston v. Clark County Sheriff Deputy Joh n Doe s 1-5, 174 F.3d 809,
they could get a police car to the location. 815 (6th Cir. 1999).
No. 02-3859 United States v. Foster 15 16 United States v. Foster No. 02-3859
turned a lawful Terry stop into a lawful search. As a result, this date. I just think it’s highly prejudicial.” J.A. at 185
because the officers had probable cause to search the vehicle, (Trial Tr.). The following exchange took place:
the marijuana, gun, and PCP recovered from the car were all
properly admissible against the defendant. Accordingly, the Court: What about the 404(b)? It seems to me
district court was correct when it denied Foster’s motion to that’s the only issue, because otherwise, if
suppress. she knew something about it firsthand —
B. Admission of Witness’s Inconsistent Statement Defense: Well —
“A district court’s decision regarding the admission of Court: — she could testify about it.
evidence is reviewed for abuse of discretion.” Gibson v.
United States, 271 F.3d 247, 254 (6th Cir. 2001). At trial, the Defense: If they get by the first —
defense called Bridgette Glover (“Glover”), Foster’s ex-
girlfriend, to testify about the events surrounding Foster’s Court: But 404(b) —
arrest, as she claimed to have witnessed them. She testified
on direct examination that Foster was moving his things out Defense: — prong.
of her apartment on the day of his arrest, as they had just Prosecution: Well, your honor, I think that I would ask
ended their relationship. She further testified that she and her the Court to rule it is admissible. I think
son helped Foster search for his cellular phone in the the probative value of this evidence,
dumpster. When asked when she had last seen Foster driving assuming it is forthcoming, is extremely
the vehicle involved in the incident, she testified that she had high. We have a defendant here who is
not seen him driving it on the night in question, and that the contesting —
last time she had seen him in it was on November 26, 2000.
On cross-examination, Glover was asked about her testimony Court: I don’t mean 403. I mean 404(b). The
regarding the search for the phone and the car and was then government is supposed to give notice
impeached by a prior inconsistent statement she had made to generally with regards to —
police on January 4, 2001. In the prior statement, she said
that she did not help Foster look for a cellular phone in the Prosecution: Judge, this is not my witness.
dumpster, and that she saw Foster driving the vehicle on the
night of his arrest. Court: Okay.
Glover was then asked if she had ever witnessed or had Prosecution: Judge, I would contend that if this witness
personal knowledge of Foster selling PCP. The defense who was living with the defendant at this
objected, initially asserting that it was hearsay evidence, later time will testify that she is aware of his
adding a “404(b) basis for it.” J.A. at 185 (Trial Tr.). PCP activity, it is certainly extremely
Specifically, defense counsel stated: “[I]f she knew he sold probative to show intent, knowledge,
it a year ago, that would be in the nature of 404(b) evidence, absen[ce] of mistake or accident, which is
would it not? It’s not connected in time to this possession on the defendant’s defense here.
No. 02-3859 United States v. Foster 17 18 United States v. Foster No. 02-3859
Court: Okay. J.A. at 185-88 (Trial Tr.).
----- At this point, the district court determined that a voir dire
of Glover was necessary to determine what she would say in
Prosecution: We can voir dire her, Your Honor, if the response to the question about whether she had ever seen
Court wants to inquire first as to what Foster sell PCP. The court noted the following at the outset:
personal knowledge she might have of the
PCP. Before you ask the question on voir dire, let me be clear
for the record, to the extent that there was also arguably
Court: I think that really is the issue. As I look at an objection under 403, I just wanted to be clear that I
it, Mr. Pyle [defense counsel], I’m looking was addressing that, as well. Rule 403 says that,
under 404(b), it’s the right section, but it “although relevant evidence may be excluded if its
isn’t [the prosecution’s] witness, and so the probative value is substantially outweighed by the danger
government does have the obligation in a of unfair prejudice, confusion of the issues, or misleading
criminal case to provide a reasonable of the jury, or by considerations of undue delay, waste of
notice in advance of trial, but in this time, or needless presentation of cumulative evidence.”
circumstance, where it’s not his witness Here the argument by the defendant is, and would be,
and where there was no — she wasn’t on unfair prejudice. However, the Court finds that the
the witness list at the time that we chose evidence should not be excluded because I don’t find the
the jury, he could not have responsibility probative value is substantially outweighed by the danger
for having given advance notice when he of unfair prejudice. Here the probative value is very high
didn’t know the witness would ever be in the context of a case like this where there are disputed
called. issues and facts about ownership of a car, about,
therefore, whether the things in the car, drugs and gun,
----- were those of the defendant, and so it would go to intent,
motive, plan, design, those kinds of issues. So I would
Court: I think given [Foster’s] denial and the overrule the objection on that ground, as well. What I’ve
question of whether or not the drugs in the decided to do is allow the parties to voir dire the witness
car [were] his, and so forth, and whether on this issue and then make a determination as to how we
they were — I think it would go to will proceed at trial in light of answers given.
opportunity or intent or knowledge, or a
number of those kinds of things, under J.A. at 189-90 (Trial Tr.).
404(b), but I think there is a prejudice that
if the question is asked and she gives a During the subsequent voir dire, Glover stated that she had
“no” answer, there could be — that could never seen Foster possess or distribute PCP. The government
taint. So I would agree that depending on proceeded to impeach Glover’s denials with excerpts from a
what the response is — and so maybe we written statement she had made about three weeks after
should get that answer outside of the jury. Foster’s arrest. In the statement, she said that she observed
Higgins remove vials of PCP from the vehicle in question.
No. 02-3859 United States v. Foster 19 20 United States v. Foster No. 02-3859
She “observed this from the doorway of [her] house and saw places there in the statement where she talks about that.
the officers hold up two tubes about three inches high.” J.A. One was earlier and one was right at the end.
at 191 (Trial Tr.). She continued: “I know this because I
guess that Derrick Foster sells the PCP. He dips the Newport (Discussion off the record).
cigarettes in the PCP and sells them that way.” J.A. at 191
(Trial Tr.). She also said in this statement that she “kn[ew] I don’t think that the defendant can call this witness and
Derrick Foster m[ade] money dealing with PCP.” J.A. at 192 then kind of hide behind her making denials at trial of
(Trial Tr.). Although she admitted that the statement she things she said in a prior statement. The concern I have
made was accurately written down, she claimed that she made has more to do with specificity of the statement. But she
these statements “out of anger,” and that her statement was clearly says that she knows that he deals, makes money
false. J.A. at 191-92 (Trial Tr.). from dealing in PCP. She’s going to deny that’s the case
now, she’s also given us her answer as to why she said
After the prosecution finished its questioning, the judge what she said. And I think that what I should do, and
asked both parties their positions as to how to proceed. The will do, is allow full development of the testimony.
prosecution felt it was entitled to ask the questions, so that the
jury could “assess the validity of [] [Glover]’s denials.” J.A. J.A. at 194-95 (Trial Tr.). In conclusion, the judge permitted
at 194 (Trial Tr.). The defense characterized the situation as Glover’s impeachment, as he determined that Glover “ha[d]
a “403 problem,” expressing concern over the jury’s ability to some impeachment material.” J.A. at 197 (Trial Tr.).
use the evidence solely for impeachment purposes, and not However, due to the concern expressed by defense counsel
substantively, concluding therefore that the prejudice to that the jury would consider this testimony for its truth, and
Foster would be “overwhelming.”10 J.A. at 194 (Trial Tr.). not purely for impeachment purposes, the judge administered
The court, calling the situation a “difficult dilemma,” made a limiting instruction at the time the jury was given pre-
the following determination: deliberation instructions.11 Before being read to the jury,
however, the instruction was read to counsel for both the
[Glover]’s clearly made a statement that she knows that government and Foster, both of whom expressed approval of
he deals in PCP or makes money dealing with PCP, and the wording.
there are no facts and circumstances developed in the
statement, and that’s not a criticism of the statement, but
there are no facts and circumstances. And that clearly
would have no problem if there were facts and
circumstances in it, to be honest with you, because, you 11
know, the fact she denies it now is just that, a denial, but The instruction read:
she said it before. And so — Mr. Schmitz [the Now, during the course of this trial you have heard the testimony
of several witnesses. You have also heard that before this trial,
prosecution], let me see those — I think there were two some of them made statements that may be different from their
testimony here in c ourt. Those earlier statements were brought
to your attention only to help you decide how believable their in-
court testimony was. You cannot use them as proof of anything
10
else. You can only use those earlier statements as one wa y of
The defense did not renew its Rule 404(b) ob jection at any time evalua ting their testim ony here in co urt.
after the voir dire of Glover. J.A. at 209 (Trial Tr.).
No. 02-3859 United States v. Foster 21 22 United States v. Foster No. 02-3859
1. Rule 404(b) Objection The government impeached Glover using her prior
inconsistent statement to demonstrate that she was
Foster contends that the district court erred when it contradicting herself, and therefore that her testimony should
permitted Glover’s previous statement to come in, as this be called into doubt by the jury for that reason. The purpose
evidence violated Rule 404(b) because it constituted “other was not, nor could it be, to demonstrate that Foster was acting
acts” evidence that did not fall within one of the enumerated in conformity with his prior bad acts or character. Showing
exceptions. At the outset, we note that this case is made that Glover was being inconsistent demonstrates nothing
rather complicated because of the ambiguity contained in the more than that - her inconsistency with regard to whether or
record, in that it is not entirely clear on what ground the not she had seen Foster sell drugs in the past. Accordingly,
district court relied in admitting Glover’s prior inconsistent Rule 404(b) is not triggered.
statement. However, we do not believe that this is a situation
in which Rule 404(b) applies at all. Glover’s prior inconsistent statement is admissible under
Federal Rule of Evidence 613(b), which permits the
Federal Rule of Evidence 404(b) states that impeachment of a witness by “[e]xtrinsic evidence of a prior
inconsistent statement” if “the witness is afforded an
Evidence of other crimes, wrongs, or acts is not opportunity to explain or deny the same and the opposite
admissible to prove the character of a person in order to party is afforded an opportunity to interrogate the witness
show action in conformity therewith. It may, however, thereon . . . .” In the instant case, it is clear that Glover was
be admissible for other purposes, such as proof of properly impeached by her prior statement, as it directly
motive, opportunity, intent, preparation, plan, contradicted the statement she made on the stand.
knowledge, identity, or absence of mistake or accident, Accordingly, the district court did not abuse its discretion in
provided that upon request by the accused, the permitting this impeachment. We have permitted the
prosecution in a criminal case shall provide reasonable impeachment of a witness, even when the impeaching
notice in advance of trial, or during trial if the court material involves “other acts” of the defendant. See, e.g.,
excuses pretrial notice on good cause shown, of the United States v. Gholston, 10 F.3d 384, 388 (6th Cir. 1993)
general nature of any such evidence it intends to (after taking stand and denying having made such statement,
introduce at trial. witness impeached by his prior statement that he sold drugs
for, or received drugs from, the defendant).
Fed. R. Evid. 404(b). As the rule makes clear, introduction of
evidence that Foster had previously sold drugs would be 2. Rule 403 Objection
inadmissible simply to create the inference that because he
sold drugs in the past, he was guilty of doing it in the present Foster also asserts that pursuant to Federal Rule of
case. Therefore, if Glover’s previous statement was within Evidence 403, the district court erred by letting the
the scope of Rule 404(b), it could only be admitted if it fell government impeach Glover with her prior inconsistent
within the scope of an exception, e.g., to prove “motive, statement, because the probative value of that evidence was
opportunity, intent, preparation, plan, knowledge, identity, or outweighed by the unfair prejudice caused by its introduction.
absence of mistake or accident.” These exceptions are
illustrative and not exclusive. See United States v. Hardy, Federal Rule of Evidence 403 states that even relevant
228 F.3d 745, 750 (6th Cir. 2000). “evidence may be excluded if its probative value is
No. 02-3859 United States v. Foster 23 24 United States v. Foster No. 02-3859
substantially outweighed by the danger of unfair prejudice.” evidence,12 thereby limiting any possible unfair prejudice
Fed. R. Evid. 403. The district court considered Rule 403 Foster feared from the jury’s improper use of the testimony.
when it made its decision to allow the government to go forth “A crucial assumption underlying th[e] system [of trial by
with its impeachment of Glover, making the following jury] is that juries will follow the instructions given them by
comments: the trial judge.” Parker v. Randolph, 442 U.S. 62, 73 (1979);
see also Morgan v. Shirley, 958 F.2d 662, 668 (6th Cir. 1992)
Here the argument by the defendant is, and would be, (relying on Randolph assumption). Accordingly, the district
unfair prejudice. However, the Court finds that the court did not abuse its discretion in its Rule 403
evidence should not be excluded because I don’t find the determination.
probative value is substantially outweighed by the danger
of unfair prejudice. Here the probative value is very high C. Ineffective Assistance of Counsel
in the context of a case like this where there are disputed
issues and facts about ownership of a car, about, Foster asserts that he was denied the effective assistance of
therefore, whether the things in the car, drugs and gun, counsel at trial because his attorney called Glover as a
were those of the defendant . . . . witness, who then gave testimony on cross-examination that
Foster had previously sold PCP. Foster alleges that this
J.A. at 189 (Trial Tr.). demonstrates that “[e]ither counsel did not fully prepare and
thus unwittingly placed [Glover] on the stand, or, knowing
A trial court’s Rule 403 determination is reviewed for that she had given a prior damaging statement, he ran an
abuse of discretion. United States v. Gibbs, 182 F.3d 408, unreasonable risk that it would not be revealed during cross-
429 (6th Cir. 1999), cert. denied, 528 U.S. 1051 (1999). examination.” Appellant’s Br. at 32. Foster also criticizes his
“Under such a standard of review, this court takes maximal counsel’s “fail[ure] to request a limiting instruction to the jury
view of the probative effect of the evidence and a minimal to at least attempt to minimize the damage” allegedly caused
view of its unfairly prejudicial effect, and will hold that the by Glover’s testimony. Appellant’s Br. at 32.
district court erred only if the latter outweighs the former.”
United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997). Generally, this court will not review an ineffective
assistance of counsel claim raised for the first time on
The district court did not commit an abuse of discretion direct appeal because the record has not been sufficiently
when it determined that the probative value of the evidence developed for assessing the merits of the allegation.
was not outweighed by its unfairly prejudicial effect, and However, if the record has been sufficiently developed to
permitted the jury to weigh the credibility of Glover’s direct allow this court to evaluate counsel’s performance, this
testimony, that she had never seen Foster possess or distribute
PCP, armed with the knowledge of her prior inconsistent
statement, that “Foster sells the PCP.” J.A. at 191 (Trial Tr.).
We also note that the district court gave a limiting instruction 12
Foster criticizes the district court because “having admitted the
to the jury regarding the appropriate use of the impeachment evidence, [it] failed to instruct the jury whatsoever as to how it may use
the evidence.” Appellant’s Br. at 30. However, as demonstrated above,
the court gave the jury a lim iting instructio n befo re it retired to deliberate
that was approved by bo th parties. Hence, there is no merit to this
argum ent.
No. 02-3859 United States v. Foster 25
court will consider the ineffective assistance claim even
though it was not raised at the district court.
United States v. Goodlett, 3 F.3d 976, 979 (6th Cir. 1993).
See also United States v. Snow, 48 F.3d 198, 199 (6th Cir.
1995).
Because the record is inadequate for appellate review, we
do not decide whether Foster’s counsel was ineffective at
trial. “Ineffective assistance of counsel claims are best
brought by a defendant in a post-conviction proceeding under
28 U.S.C. § 2255 so that the parties can develop an adequate
record on the issue.” United States v. Daniel, 956 F.2d 540,
543 (6th Cir. 1992); see also Massaro v. United States, 123 S.
Ct. 1690, 1694 (2003) (ineffective-assistance-of-counsel
claims may and should be brought in 28 U.S.C. § 2255
proceeding).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Foster’s motion to suppress and its decision to
permit impeachment of Glover. As for the ineffective-
assistance-of-counsel claim, we do not address it, as the
record is inadequate for appellate review.