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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 24-CF-0048
LUIS RIVERA, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2023-CF3-003464)
(Hon. Heidi M. Pasichow, Trial Judge)
(Argued April 29, 2025 Decided September 25, 2025)
Thomas T. Heslep, appointed by this court, for appellant.
Dylan M. Aluise, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time, and Chrisellen R. Kolb, Elizabeth H. Danello, Lindsey N. Miller, and Valerie Tsesarenko, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH, DEAHL, and HOWARD, Associate Judges.
DEAHL, Associate Judge: Luis Rivera was charged with two counts of felony
assault on a police officer (APO) with significant bodily injury while armed, two
lesser included counts of felony APO with significant bodily injury (unarmed), and
two still lesser included counts of misdemeanor APO. Those charges stemmed from 2
a large protest in D.C.’s Lafayette Square that turned violent. The government
alleged that Rivera threw two large, T-shaped, metal objects into a line of law
enforcement officers who were pushing protesters out of the park, and that those
objects hit and injured two police officers. The jury acquitted Rivera of the lead
felony counts against him, but found him guilty of the two misdemeanor APO
counts.
Rivera now appeals and raises two issues. First, during deliberations, the jury
asked the court if the government was required to prove that Rivera “was attempting
to injure a specific named officer.” In response, the trial court answered that the
government did not need to prove that Rivera was attempting to injure a particular
officer. It explained that so long as Rivera intentionally threw the objects, and
thereby “created a zone of harm” around the officers with the intent to “injure/harm”
them, that satisfied the elements of APO. Rivera argues that response was erroneous
and requires reversal. Second, Rivera attempted to cross-examine several officers
about their purported biases. Although the trial court allowed some quite limited
cross-examination on that topic, it curtailed much of what Rivera contended was
within the scope of proper bias cross-examination, and Rivera now argues that was
reversible error. Discerning no reversible error, we affirm. 3
I. Factual and Procedural Background
On June 22, 2020—in the weeks following George Floyd’s murder and amidst
the various demonstrations that followed—police officers were called to Lafayette
Square to remove protesters who were trying to tear down a statue.1 The officers
convened in the park and created a police line around the statue in order to protect
it. The officers then sought to move the protesters out of the park. To do that, they
stood “side by side” and, with their backs to the statue, walked toward the protesters
to push them toward H Street, which marks the park’s northern boundary.
Detective Molly Pelta and Officer Brandon Motley testified about what
happened next, with the aid of multiple vantage points captured by their body worn
cameras, or BWCs. At 8:19 p.m., as captured on Pelta’s BWC, a person threw what
appears to be a heavy, T-shaped, metal object at the line of police officers. It is not
entirely clear what the object was, but from the video evidence it looks like a metal
footing for a police barricade, as Pelta surmised. Pelta testified that she saw the man
who threw the object and described him as wearing a “white-colored shirt, light-
colored shorts, and a red bandana.” Seconds after the first throw, the BWC footage
shows the same man picking up a similar object. And about thirty seconds after the
1 It was a statue of former President Andrew Jackson, but the parties agreed not to mention that before the jury in an effort to depoliticize the trial. 4
first throw, as captured on Motley’s BWC, a man wearing the same red bandana
throws a similar T-shaped metal object at the line of police officers. Pelta testified
that the same man threw both objects.
Officers Phillip Burggraf and Anthony Boone were the officers hit by the
metal projectiles and they both testified as well. Burggraf, who was standing behind
the police front line, testified that a metal object flew over the heads of officers in
front of him, “bounced” on the ground, and then hit him on his right shin, causing a
laceration on his leg. Boone testified that shortly after that happened, a flying metal
object struck his “right shoulder.” Detective Sergeant Carl Holmberg with the U.S.
Park Police was standing near Boone and also saw the second metal object fly in
their direction. Neither Burggraf, Boone, nor Holmberg saw who threw the objects.
Detective Yaroslav Babich also testified for the government. Babich, who
was not at the protest, reviewed “hundreds” of BWC videos after the protest to
determine the thrower’s identity, including Officer Brian Rodriguez’s BWC footage,
which Rodriguez authenticated in his testimony. Babich testified that, according to
his review, the person who threw the objects wore a “gray top” with Cyrillic writing,
“gray bottom[s],” and a “red bandana.” With those identifying characteristics in
mind, Babich found clear still frame photos of who he believed the assailant was and
used them to put out a “be-on-the-lookout” notice, or a BOLO, for the individual, 5
complete with his photo. After receiving the notice, Pelta confirmed that Babich had
correctly identified the person whom she saw throw the metal objects. Somebody
recognized Rivera from the BOLO and identified him to authorities several months
after the protest, and Rivera was ultimately arrested and charged.
Defense counsel sought to cross-examine several of the testifying officers
about a variety of disciplinary matters, but the court sweepingly precluded him from
doing so, mostly on relevance grounds. Counsel sought to cross-examine Motley
about two instances in which he had previously failed to timely activate his BWC.
The trial court precluded that line of cross-examination as irrelevant, because there
was no suggestion that Motley failed to activate his BWC at the protest, and there
did not appear to be any allegation that Motley had intentionally failed to turn on his
BWC in those prior instances (he simply turned it on later than he should have).
Defense counsel also sought the court’s permission to question Burggraf about a
pending use of force complaint and about a sustained “body-worn camera violation.”
The government opposed, explaining as to the use of force complaint that it had
asked Burggraf if he was aware of any ongoing investigations against him, and he
said that he wasn’t, so that he could not have had any “motive to curry favor” with
the government based on that unknown-to-him complaint. The trial court offered
Rivera an opportunity to question Burggraf outside the jury’s presence about that
proffer, but reasoned that unless Rivera could establish some basis to think Burggraff 6
knew about the use of force complaint, questioning about that would likewise be
precluded. Rivera declined the invitation to probe Burggraf’s claimed ignorance of
that disciplinary matter.
As to Boone, defense counsel sought to question him about a pending civil
“police conduct” lawsuit against him. The plaintiff in the civil suit alleged that
Boone and other officers falsely arrested and physically beat him. The court
permitted counsel to question Boone about the suit in generic terms, as an ongoing
lawsuit against him that gave him some reason to curry favor with the government,
but the court precluded counsel from delving into the substance of the allegations.
During Boone’s cross-examination, defense counsel asked Boone about whether he
used force at the protest. Boone denied personally using any force against the
protesters, and counsel then asked if it was “true” that Boone was being sued “for
police conduct.” Boone admitted he knew about the lawsuit, but testified that he had
“nothing to do with” what happened in that case. The government objected, and the
trial court sustained the objection, reasoning that the way defense counsel “ask[ed]
the question [about the lawsuit], right after the use of force questions, seem[ed] to
indicate that [it was] a lawsuit regarding use of force.” The trial court ruled that the
questioning violated its limitations on cross-examination and, as a remedy, the court
instructed the jury that the referenced “lawsuit is not related to the circumstances in
this case,” repeating that “[i]t’s not related to the events of June 22nd, 2020.” Rivera 7
also unsuccessfully sought to question Boone about a previous failure to activate his
BWC.
Defense counsel also sought to cross-examine Babich—the detective who
exhaustively reviewed the video footage—about a sustained complaint against him
for conduct unbecoming of an officer that resulted in Babich’s suspension. The
complaint against Babich focused on text messages he apparently sent to a civilian
in the aftermath of the January 6th attack on the United States Capitol. In his text
messages, Babich complained about another officer who was at the scene of that
insurgency and was talking about it to the press. Babich wrote that he “wonder[ed]
if [that officer] realizes how many people have watched his BWC” and “how
damaging it could be to have inconsistences in what you tell the media.” In another
text, he wrote “All I know is, don’t talk to the media about investigations. Don’t
admit to the media you are a plainclothes officer, when you damn well know that’s
unauthorized and you’re putting your supervisors out to dry.” The trial court
precluded counsel from cross-examining Babich about that, explaining that it was
irrelevant to any issue before the court and did not speak to any potential “corruption
bias” that Babich might have.
Defense counsel did cross-examine Babich about some perceived
discrepancies in the BWC footage he reviewed, however. Namely, defense counsel 8
questioned Babich about an eleven-second timestamp differential in Rodriguez’s
video and the BWC footage taken by another officer, Arthur Hopper, who did not
testify. That is, if you watched their BWC videos side-by-side, so that the action
aligned, the videos’ timestamps were off by eleven seconds. Babich essentially
shrugged the discrepancy off as a byproduct of inexact timestamps, nothing more.
Defense counsel cross-examined Officer Rodriguez—whose BWC footage
accounted for the asynchrony—as well. Rodriguez answered that he did not know
why the timestamps in the videos were not aligned.
Defense counsel then sought to cross-examine Rodriguez about his own
disciplinary infraction for “egregious misconduct.” Namely, on one occasion
Rodriguez was driving his police cruiser and he sideswiped a vehicle on his way to
an assignment without stopping—a hit-and-run. Rodriguez eventually returned to
the scene later, but only after the owner of the damaged car called 911. The defense
argued that the misconduct spoke to Rodriguez’s “credibility and reliability” as a
witness. The trial court disagreed and precluded defense counsel from examining
Rodriguez about that disciplinary matter.
After the jury began its deliberations, it sent a note asking whether it was
“necessary for the Government to prove that the defendant was attempting to injure
a specific named officer.” The defense argued that the note should be answered in 9
the affirmative—with a “yes,” meaning the government had to prove that Rivera
“intend[ed] to strike the victim[s],” Officers Burggraf and Boone, in particular. The
trial court rejected that view and issued what is referred to as a “concurrent intent”
instruction, see Criminal Jury Instructions for the District of Columbia, No. 3.201
(5th ed. 2024), modified to fit the particular facts of the case:
I have already instructed you on the offense of Assault on a Law Enforcement Officer with Significant Bodily Injury or Grave Risk While Armed and the two lesser included offenses. I further instruct you that if the government proves beyond a reasonable doubt that Luis Rivera threw T-shaped objects and that by throwing T-shaped objects, created a zone of harm/danger around the line of law enforcement officers, with the intent to injure/harm them, you may infer that Luis Rivera intended to injure/harm any other person in the anticipated zone of harm/danger and Luis Rivera has committed the same type of assault against Phillip Burggraf and/or Anthony Boone as he would have committed had he also injured/harmed the line of law enforcement officers.
This principle applies whether or not the intended victim is also injured/harmed and whether or not the intended victim is identified.
The jury found Rivera guilty of two counts of misdemeanor APO, and Rivera
now appeals. 10
II. Analysis
Rivera raises two challenges on appeal. He argues that the trial court gave a
legally erroneous instruction in response to the jury’s note inquiring whether the
government had to prove that Rivera intended to hit the two particular officers who
were ultimately struck. He also contends that the trial court erred when it limited
his various lines of bias cross-examination. We review both of these issues in turn.
A. Any erroneous response to the jury’s note was harmless.
Rivera argues that the trial court erred when it responded to the jury’s note
regarding whether the government had to prove that Rivera intended to hit Officers
Burggraf and Boone in particular. That is, the jurors asked whether it was “necessary
for the Government to prove that the defendant was attempting to injure a specific
named officer.” Rivera argued at trial that the note should be answered in the
affirmative, that the government had to prove that Rivera “intend[ed] to strike the
victim[s].” The trial court rejected that view and answered the question in the
negative, and responded with a concurrent intent instruction, which told jurors that
Rivera could be convicted if he threw the T-shaped object with the intent to
injure/harm some officer in the police lines, even if he had no particular target in
mind. 11
Now on appeal, Rivera has abandoned his trial position that the note should
have been answered in the affirmative. Instead, his current position concedes that
the court properly answered the note in the negative, telling the jury that the
government did not need to prove that Rivera hit a specifically intended target so
long as the object was thrown at a group of police officers with the intent to injure
or harm any member of the group. Despite conceding the general accuracy of the
trial court’s response, Rivera now offers a more discrete critique of it, claiming that
it was potentially confusing because it suggested, at odds with the evidence, that
Rivera did in fact have a particular target in mind. Rivera aims this critique
principally at the response’s concluding sentence: “This principle applies whether
or not the intended victim is also injured/harmed and whether or not the intended
victim is identified.” That sentence, Rivera now posits, was confusing because it
suggested Rivera in fact had an intended target, when that was “not supported by the
evidence” so it invited the jury “to speculate.”
We confess that we have a hard time understanding Rivera’s complaint with
the judge’s response where, based on the premises of his argument, it seems more
favorable to him than what he now advocates for. Suffice it to say, even if we agreed
with Rivera that the trial court needlessly suggested that he had or needed to have
an intended target when the evidence and the law did not support those views, that
confusion was largely immaterial where Rivera now concedes that the thrust of the 12
trial court’s answer was correct. That is, he concedes that the jury could have
properly convicted him of the misdemeanor APO counts so long as the evidence
showed that he intentionally threw the metal objects into a group of police officers
with the intention of injuring or harming any one of them. That issue was at the core
of the jury’s expressed confusion, and it is now undisputed that the trial court
accurately cleared that confusion up in its response.
To the extent the trial court erred on the peripheral aspects of its response, any
such error was harmless. If the trial court injected some needless confusion by
suggesting, contrary to the evidence and the law, that Rivera had or had to have some
particular intended target in his crosshairs, that confusion could only have benefited
him by requiring the government to prove more than was necessary. That is, it
suggested that the government had to prove that Rivera had a particular target in
mind when Rivera now concedes that was not necessary. Because any apparent
confusion would have inured to Rivera’s benefit, we can say with the utmost
confidence that any error did not contribute to the jury’s guilty verdicts so that any
imprecision in the court’s response was, at worst, harmless error. Evans v. United
States, 304 A.3d 211, 231 (D.C. 2023) (citing Kotteakos v. United States, 328 U.S.
750, 765 (1946)). 13
B. Any erroneous limitation on cross-examination was likewise harmless.
Rivera next complains that the trial court erroneously curtailed his cross-
examination of multiple police witnesses. In Rivera’s view, the court cut off a
number of valid inquiries into those officers’ biases, so his convictions should be
reversed.
“The Sixth Amendment protects the right of the accused in a criminal trial to
confront and cross-examine adverse witnesses.” Mason v. United States, 53 A.3d
1084, 1094 (D.C. 2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986)). This right “includes the guarantee of ‘a full and fair’ opportunity to show
that the government’s witnesses are biased.” Martinez v. United States, 982 A.2d
789, 794 (D.C. 2009) (quoting McDonald v. United States, 904 A.2d 377, 381 (D.C.
2006)). However, the right to cross-examination is not unlimited. Once cross-
examination sufficiently satisfies Sixth Amendment requirements, “the trial court
has discretion to control the scope and extent of cross-examination.” Parker v.
United States, 586 A.2d 720, 722 (D.C. 1991) (quoting Reed v. United States, 452
A.2d 1173, 1176 (D.C. 1982)). “Bias cross-examination of a main government
witness is always a proper area of cross-examination and is relevant in assessing the
witness’ credibility and evaluating the weight of the evidence.” Howard v. United
States, 978 A.2d 1202, 1207 (D.C. 2009) (quoting Blunt v. United States, 863 A.2d 14
828, 833 (D.C. 2004)); see Scull v. United States, 564 A.2d 1161, 1165 (D.C. 1989)
(“[T]he alleged bias or unreliability of a witness is never a collateral issue.”).
Two types of bias are relevant here: currying-favor bias and corruption bias.
Currying-favor bias means a witness has “a motive to ‘slant his testimony in favor
of the government.’” Martinez, 982 A.2d at 794 (quoting Beynum v. United
States, 480 A.2d 698, 707 (D.C. 1984)). For example, “the existence of a[
government] investigation” against a witness—“and the witness’s knowledge of
it”—provides a motive “to curry favor with the government.” Smith v. United States,
26 A.3d 248, 262 (D.C. 2011) (citing Cunningham v. United States, 974 A.2d 240,
241 (D.C. 2009)); see also Longus v. United States, 52 A.3d 836, 851-52 (D.C.
2012). Corruption bias, on the other hand, refers to evidence that shows “a
propensity or willingness to thwart the ascertainment of truth in a judicial
proceeding.” Longus, 52 A.3d at 852 (quoting Bennett v. United States, 763 A.2d
1117, 1123 (D.C. 2000)). Evidence that a police officer had ever, in any case,
tampered with witnesses or had otherwise somehow obstructed justice, for example,
would support a corruption bias theory. Id.
Rivera specifically argues that the trial court impermissibly curtailed his bias
cross-examination of officers when it precluded him from questioning (1) Burggraf
about the pending complaint against him that he was seemingly unaware of; 15
(2) Boone about his pending civil lawsuit and prior failure to timely activate his
BWC; (3) Babich about his suspension after he texted non-police personnel about
another officer’s media appearance; (4) Motley about two previous BWC violations;
and (5) Rodriguez about a sustained complaint regarding the hit-and-run.
He raises some pretty strong points. In our view the trial court was overly
aggressive in its extensive limitations on seemingly proper lines of bias cross-
examination. For instance, take Rivera’s desired cross-examination of Officer
Rodriguez, who apparently fled the scene after hitting another vehicle in his police
cruiser and then failed to report the accident until the owner of the struck vehicle
called 911 to report it. While Rodriguez had an explanation for leaving the scene
and returning only after the victim’s 911 call—he was responding to an emergency
that took priority, in his telling—Rivera and the jury did not have to take that
explanation at face value. That incident was definitely some evidence of corruption
bias that Rivera should have been able to explore on cross-examination. That is, it
was some evidence that Rodriguez had displayed a willingness to thwart justice
when it served his purposes, and we do not see any proper basis for precluding that
line of cross-examination as the trial court did.
Or consider Rivera’s proposed cross-examination of Babich, the detective
who thoroughly examined the BWC footage from the protest. Babich had texted 16
non-law enforcement personnel to complain about another officer who was at the
scene of the January 6 attack at the U.S. Capitol and was speaking to the media.
Babich wrote that “[a]ll [I] know is, don’t talk to the media about investigations,”
especially about “unauthorized” conduct like being a “plainclothes officer” because
that hangs your “supervisors out to dry.” That also seemed to display some
willingness to evade the truth to cover up for fellow police officers, so that the trial
court should have afforded defense counsel more leeway in probing Babich’s
potential corruption bias on cross-examination. See Longus, 52 A.3d at 852.
The critical failure with all of these claims, however—as with the previous
one—is that even assuming the trial court erred in every respect Rivera highlights,
it is exceedingly difficult to discern any harm flowing from the alleged errors. The
only serious dispute at Rivera’s trial that concerned the misdemeanor APO counts
was whether Rivera in fact threw the two T-shaped objects into the group of police
officers. If he intentionally did that, it seems inescapable that he was guilty of at
least two misdemeanor APOs, which were the only charges he was ultimately
convicted of. And Rivera’s identity was not established by any of the officers whom
he sought to impeach through bias cross-examination—it was instead established by
Detective Pelta, the only officer who purported to see Rivera throw the metal objects,
and objective video evidence that clearly depicted the man who threw those objects. 17
The five officers whom Rivera sought to examine further did not offer any
meaningful identification evidence. Officers Burggraf and Boone testified primarily
about the injuries they suffered, as the severity of them was relevant to the more
serious felony charges that Rivera was acquitted of. But their testimonies were
largely irrelevant to the misdemeanor APO counts that Rivera was convicted of.
Officers Babich, Motley, and Rodriguez served largely to authenticate and narrate
various angles of BWC footage. Even if they were entirely non-credible witnesses,
and Rivera had succeeded in depicting them as deeply corrupt, the video evidence
speaks for itself. To undermine that video evidence you would effectively have to
sow some doubt that the officers all conspired to create countless deepfake videos
depicting Rivera throwing the objects. And they seemingly would have had to create
those deepfakes at a stage of the investigation when they were looking for the
suspect—months before Rivera had even been identified when officers created the
BOLO from which Pelta had confirmed who she saw throwing the objects—to
falsely implicate some random person in the crowd who had not even been identified
yet. That is a pretty wild theory that we do not think any reasonable jury could have
thought remotely plausible even if Rivera had been given wide leeway to cross-
examine the officers about discrete disciplinary infractions and investigations.
In short, none of the officers who Rivera sought to further cross-examine
offered meaningful testimony about the only disputed issue relevant to the 18
misdemeanor APO charges, to wit, whether Rivera was the man depicted in the
videos throwing the T-shaped metal objects. Detective Pelta and the objective video
evidence established that, and no amount of impeachment of other officers’
peripheral testimonies stood any reasonable chance of changing the jurors’ minds
about that question. 2 See McGriff v. United States, 705 A.2d 282, 286 (D.C. 1997)
(error was harmless beyond a reasonable doubt where witness’s testimony was
corroborated by two other witnesses so even if the jury had completely discounted
the witness’s testimony, the evidence against appellant would have remained just as
strong).
III. Conclusion
For the foregoing reasons, we affirm.
So ordered.
2 We assume, for the sake of argument, that the limitations on cross- examination were so pervasive that they rise to the level of constitutional error. Even assuming the exacting harm standard for constitutional errors applies here, we conclude that it is “clear beyond a reasonable doubt . . . that the restricted line of inquiry would not have weakened the impact of the witness[es]’ testimony.” McGriff, 705 A.2d at 286.