United States v. Robert J. Butler

636 F.2d 727, 205 U.S. App. D.C. 19, 1980 U.S. App. LEXIS 12776

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 29, 1980
• Docket: 16-1172
• Status: Published

Opinions

Opinion for the court filed by District Judge BARRINGTON D. PARKER.

Dissenting opinion filed by Senior Circuit Judge BAZELON.

BARRINGTON D. PARKER, District Judge:

Appellant Robert J. Butler was charged in a multicount indictment with possession of phenmetrazine with intent to distribute on four separate dates: June 30, August 16, August 19 and October 31, 1977. The jury returned a verdict of guilty on the June and August dates, the first three counts. It was unable to reach a verdict on the fourth count charging distribution on October 31 and after a partial verdict was accepted, the government dismissed that count.

Butler defended on the ground of misidentification and alibi. The government’s case depended chiefly upon the testimony of Officer Vincent Scott, Metropolitan Police Department (MPD), who, while working undercover, allegedly purchased the drugs from appellant on the four occasions listed above. Butler contends the trial court committed prejudicial error by failing to enter a judgment of acquittal. The principal issue presented is whether the evidence was legally sufficient to submit the case to the jury and to sustain Butler’s conviction.

** We find that it was and we affirm.

Officer Scott testified that, while working undercover in the 14th Street area, he had observed Butler on several occasions engaged in what appeared to be drug transactions. Then, on the dates of the four-count indictment, he was approached by the appellant and, following a conversation with him, appellant sold Scott a quantity of phenmetrazine tablets. As to each transaction, Scott was in close proximity for periods of at least two to three minutes. Following each sale, Scott prepared a “buy” report detailing the transaction and including a description of the seller. Those descriptions, referring to Butler as John Doe # 8, differed in several respects from appellant’s appearance. Most notably, they profile a person two inches taller, forty-five to sixty pounds heavier, and six years older. Appellant’s counsel cross-examined Scott extensively about the divergent descriptions. Appellant also presented four witnesses who testified as to his whereabouts on the date of the final sale, October 31, 1977, Halloween. The government dismissed the October 31 count when the jury returned a partial verdict on the first three counts. Appellant argued at trial that by showing he was not present at one sale he had demonstrated he was not present at any of the alleged sales. Appellant was unable to produce evidence of his whereabouts on the dates of the first three sales.

Appellant claims the evidence was “insufficient to sustain a conviction” and therefore the trial judge’s failure to enter a judgment of acquittal constitutes error. He bases this appeal on the unreliability of uncorroborated identification testimony, see United States v. Greer, 538 F.2d 437, 442 (D.C.Cir.1976), and his alibi proof on the fourth count.

This jurisdiction follows the “one-witness” rule allowing a case to be proven, with limited exceptions not relevant in this case, through the uncorroborated testimony of one eyewitness. United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). In deciding whether a one-witness case should go to the jury it is incumbent upon the trial judge to consider a number of factors relating to the period of identification and to determine “whether the totality of circumstances ‘give[s] rise to a very substantial likelihood of irreparable misidentification.’ ” United States v. Levi, 405 F.2d 380, 383 (4th Cir. 1968), quoted with approval, Telfaire, 469 F.2d at 555 n.5. In particular, the judge should consider the opportunity for identification, the lighting conditions, the duration of encounters, the strength of the identification and the judges’s appraisal of the witness’ capacity to observe. Telfaire, 469 F.2d at 555-59. Further, after making a determination to submit the case to jury, the trial judge should instruct the jury on how to properly evaluate identification testimony. See Model Special Instruction on Identification, Telfaire, 469 F.2d at 558. The trial court instructed the jury appropriately in this instance, giving a version of the “Telfaire instruction” tailored to fit the facts of this case. Tr. at 198-200.

This Court is cognizant of the discrepancies between Scott’s identification and reality. However, “[i]t is only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the judge may properly take the case from the jury.” United States v. Davis, 562 F.2d 681, 683 (D.C.Cir. 1977). And in evaluating this determination, “this court must view the evidence in the light most favorable to the government’s position.” Crawford v. United States, 375 F.2d 332, 334 (D.C.Cir.1967).

Proof by one-witness identification should be a jury question when, as in this case, a police officer, trained and experienced in identification has numerous occasions to observe a defendant under satisfactory conditions. Scott testified that he recognized the importance of accurate descriptions and that in his four years with the MPD, one year of which he spent undercover investigating illegal drug trafficking, he had a “fair amount of practice” describing those with whom he came into contact. Appellant had ample opportunity to impeach Scott’s credibility during cross-examination. The issue of credibility was one for the jury to determine, not this Court. In addition, it was for the jury to decide whether or not Butler’s alibi for the October 31 sale should serve as proof and offset the government’s testimony as to whether Butler was indeed involved in the three earlier sales.

Taking the evidence in the light most favorable to the government this Court finds the evidence legally sufficient for submission of the ease to the jury. Accordingly, the judgment is affirmed.

Appellant originally filed his appeal on this issue on July 31, 1978. No. 78-1458. Counsel for appellant on appeal withdrew that brief and filed a Motion for a New Trial with the trial court which motion was denied by order of December 22, 1978. On this appeal, No. 79-1014, consolidated with the earlier appeal by order of this Court, appellant also claims the trial judge committed prejudicial error by denying the motion for a new trial based on a claim of new evidence consisting of police “buy” reports received at trial as “Jencks” material. This argument is without merit. The “buy” reports constitute eight hand-written pages prepared by Officer Scott after each drug sale. They were given to defense counsel as “Jencks” material prior to the commencement of the trial and cannot be considered “new evidence.” Thompson v. United States, 188 F.2d 652 (D.C.Cir.1951); see United States v. White, 514 F.2d 205 (D.C.Cir.1975).