United States v. McCallum , 885 F. Supp. 2d 105 ( 2012 )


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  •                    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________
    )
    UNITED STATES OF AMERICA,     )
    )
    v.                       ) Criminal Action No. 10-234 (RWR)
    )
    WINSTON MCCALLUM              )
    )
    Defendant.               )
    ____________________________ )
    MEMORANDUM OPINION AND ORDER
    Defendant Winston McCallum went to trial charged in a two-
    count superseding indictment with unlawful possession with intent
    to distribute 28 grams or more of cocaine base, in violation of
    
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(B)(iii), and unlawful
    possession with intent to distribute 28 grams or more of cocaine
    base within 1000 feet of a school, in violation of 
    21 U.S.C. § 860
    (a).   McCallum successfully moved for a mistrial when he
    discovered that the government failed to disclose certain
    statements of government witnesses before the defense cross-
    examined those witnesses.   McCallum now moves to dismiss the
    indictment on the ground that the Double Jeopardy Clause bars
    retrial or, in the alternative, moves for reconsideration of the
    pre-trial order denying his motion to suppress evidence.    Because
    McCallum has not established that the government’s series of
    disclosure violations was intended to provoke McCallum into
    seeking a mistrial, double jeopardy does not bar retrial.   In
    addition, the belatedly disclosed evidence does not change the
    -2-
    determination to deny the motion to suppress, thus McCallum’s
    motion will be denied.
    The government moves in limine to preclude McCallum from
    introducing at retrial evidence of complaints against the police
    officer witnesses and also moves in limine to preclude McCallum
    from introducing opinion and reputation evidence about those
    witnesses.   Because the complaints lacked probative or
    impeachment value, and the circumstances surrounding the
    complaints do not support a reasonable belief that the
    allegations in the complaints are true, McCallum will not be
    permitted to elicit on cross-examination the fact that complaints
    were filed or what the complaints alleged.   Finally, in the
    absence of a specific proffer by McCallum of a foundation for
    potential character witnesses, a ruling on the admissibility of
    opinion and reputation evidence will be deferred.1
    BACKGROUND
    On July 28, 2010, Officers Alphonso Matos and Ismael Chapa
    of the Metropolitan Police Department (“MPD”) were driving in a
    squad car shortly after midnight in an area known for having a
    1
    At a March 21, 2012 hearing on the motions mentioned above,
    McCallum’s separate motion in limine for reconsideration of an
    evidentiary ruling made at trial was granted in part and denied
    in part. At retrial, McCallum will be permitted to cross-examine
    Metropolitan Police Department Officer Alphonso Matos, in
    accordance with the limitations imposed at the hearing, about
    testimony Matos gave at an unrelated criminal proceeding in the
    District of Columbia Superior Court.
    -3-
    high incidence of narcotics trafficking and intoxicated people.
    According to the officers’ pre-trial testimony, which was
    credited during hearings on February 11, 2011 and June 6, 2011,
    the officers saw McCallum on a ledge at the front entrance of an
    apartment building, and he was leaning forward, as if he were
    asleep or intoxicated.   The officers got out of their car to
    check on McCallum, and Chapa positioned himself between McCallum
    and the building, at the top of a series of steps of the landing
    in front of the apartment building.     McCallum became aware of the
    officers’ presence, and began to run toward the door of the
    building.   McCallum took between one and three steps, and then
    Matos called out for him to stop.      Once McCallum stopped, the
    officers attempted to corral him, and he began to move his arms
    and shift his shoulders from one side to another.     The officers
    handcuffed McCallum using two sets of interlocking handcuffs.
    When McCallum was secured in the handcuffs, Matos asked him if he
    had anything illegal on him, and McCallum answered that he had
    cocaine.    Because the two interlocking sets of handcuffs
    permitted McCallum some limited mobility, he was able to move his
    hand to his right front pants pocket, and a zip bag containing
    crack cocaine fell from his pocket.     McCallum was arrested and
    charged with unlawful possession with intent to distribute crack
    cocaine.
    -4-
    McCallum moved to suppress statements and tangible evidence.
    At the evidentiary hearing on the motion in February 2011, Matos
    was the government’s only witness.    The government failed to
    provide the defense, before defense counsel’s cross-examination
    of Matos, with a transcript of Matos’s previous grand jury
    testimony regarding the events leading to McCallum’s arrest.2
    During a recess at the hearing and while conferring with
    government counsel, defense counsel noticed the transcript on
    government counsel’s desk and government counsel then provided it
    to the defense.   Defense counsel was then permitted additional
    cross-examination of Matos based on potential inconsistencies
    between his testimony at the suppression hearing and his previous
    testimony before the grand jury.   McCallum’s motion to suppress
    was granted as conceded as to evidence recovered from a search of
    his apartment conducted following his arrest, but the motion to
    suppress as to evidence seized from the defendant’s person and
    the motion to suppress the defendant’s statements at the scene
    were denied.
    Thereafter, defense counsel contacted government counsel to
    inquire whether the grand jury testimony of Chapa, who had not
    testified at the February 2011 suppression hearing, contained
    exculpatory material.   Government counsel in turn disclosed to
    2
    Defense counsel deems this the first in a series of
    disclosure violations precluding retrial.
    -5-
    McCallum a transcript of Chapa’s grand jury testimony.    McCallum
    then filed a motion to reopen the suppression hearing, arguing
    that the government had violated its Brady obligations in not
    disclosing Chapa’s grand jury testimony earlier and that the
    testimony presented an account of defendant’s arrest that was
    inconsistent with Matos’s account, undercutting the conclusion
    that the officers possessed reasonable suspicion for stopping
    McCallum.3   The motion to reopen the suppression hearing was
    granted, and at a hearing in June 2011, McCallum’s counsel cross-
    examined Officer Chapa regarding the newly disclosed information.
    The court reaffirmed its denial of the motion to suppress, as to
    evidence seized from defendant’s person and as to defendant’s
    statements on the scene.
    Before trial, McCallum subpoenaed from the Metropolitan
    Police Department information regarding complaints against the
    officers who had arrested him.   The government moved to quash the
    subpoena.    At a hearing on the government’s motion, and in
    response to the government’s representation that no relevant or
    exculpatory information existed, the court directed the
    government to inquire further with the entities that maintain
    police complaints regarding the existence of potentially
    responsive material.   The government then disclosed certain
    3
    Defense counsel deems the government’s failure to provide
    this transcript before the suppression hearing the second in a
    series of disclosure violations precluding retrial.
    -6-
    information to the court for in camera review,4 including written
    summaries of statements concerning McCallum’s arrest made to MPD
    Internal Affairs by Chapa on August 15, 2011 and by Matos on
    August 17, 2011.   The court ordered the government to disclose
    those summaries to the defense.    The government provided them to
    the defense on the morning of trial.5     Also on the morning of
    trial, the government disclosed to the defense a “property book”
    completed by Matos detailing the evidence recovered from the
    scene of defendant’s arrest.6
    Trial began in December 2011.      While defense counsel cross-
    examined Matos about inconsistencies between Matos’s trial
    testimony and his prior statements to Internal Affairs, the
    officer asserted that the written summaries inaccurately conveyed
    what he had told Internal Affairs and that recordings made of the
    statements would confirm his account.     The government had not
    disclosed to the defense the recordings of the officers’
    statements to Internal Affairs nor disclosed that they existed.
    4
    The government’s ex parte, in camera submission has been
    filed under seal.
    5
    Defense counsel deems the failure to disclose these
    statements before the suppression hearing the third in a series
    of disclosure violations precluding retrial.
    6
    Defense counsel deems the failure to disclose the property
    book before the suppression hearing the fourth in a series of
    disclosure violations precluding retrial.
    -7-
    Since the government had promised to provide all Jencks7 material
    10 days before trial, McCallum moved to strike the testimony of
    both officers or, in the alternative, for a mistrial.8    Over the
    government’s opposition, the court declared a mistrial but found
    that the government’s misconduct was not willful or intentional.
    In February 2012, shortly before retrial was set to begin,
    the government submitted to the court for in camera inspection
    seventeen complaints filed with the independent9 Office of Police
    Complaints (“OPC”) against Matos and Chapa.10    Seven against
    Matos were in open status and the rest had been closed.    The
    court reviewed all of the complaints and found that fourteen
    complaints bore no allegations that the officers planted
    narcotics evidence, had no probative value as other act evidence
    under Federal Rule of Evidence 404(b) or as to truthfulness under
    Rule 608(b), and otherwise were not material to preparing the
    defense, see Fed. R. Crim. P. 16(a)(1)(E)(i), or to McCallum’s
    guilt.     Nor were most of the open allegations, even if proven, of
    7
    The Jencks Act, 
    18 U.S.C. § 3500
    , requires the government
    to disclose to the defense prior statements made by a testifying
    government witness concerning the subject of the witness’s direct
    examination.
    8
    Defense counsel deems this violation of Jencks the fifth in
    a series of disclosure violations precluding retrial.
    9
    See 
    D.C. Code §§ 5-1102
    , 5-1105.
    10
    The government’s ex parte, in camera submission has been
    filed under seal.
    -8-
    the type that would likely risk generating a criminal prosecution
    or any internal MPD discipline that could cause Matos to want to
    curry favor with prosecutors.    The court did order three
    complaints against the officers for allegedly falsely accusing
    individuals of possessing drugs disclosed to the defense.11    In
    closed Complaint 10-0146, H.B. alleged that he was falsely
    arrested after police, including Chapa, claimed to find in H.B.’s
    car drugs that were not there.   H.B. alleged that he had gotten
    out of the car and was threatened by police with a citation for
    leaving the windows down when he returned, that the police asked
    for permission to search his car, and that they searched it
    anyway when he refused.   H.B. alleged that he did not have drugs
    in the car.   The government produced a D.C. Superior Court record
    reflecting that H.B. was charged with possessing a controlled
    substance based on the arrest and ultimately pled guilty to the
    offense.   (Govt.’s Mot. in Limine to Preclude Evidence Concerning
    Police Complaints, Ex. 1.)   In closed Complaint 10-0385, D.G.
    alleged that he was sitting on his porch when Chapa approached
    and said that D.G. fit the description of a suspect and that
    Chapa then arrested him, took drugs off another person, and put
    the drugs on D.G.   The government produced a D.C. Superior Court
    11
    Defense counsel deems the government’s failure to disclose
    before the suppression hearing these three complaints and the
    seven open complaints to be the sixth and seventh, respectively,
    in a series of disclosure violations precluding retrial.
    -9-
    record reflecting that D.G. was charged with possessing cocaine,
    marijuana, and drug paraphernalia as a result of the arrest and
    ultimately pled guilty to the offenses.   (Id., Ex. 2.)   In open
    Complaint 12-0034, E.S. alleged that he called emergency services
    when his brother tried to assault him, and that when police,
    including Matos, arrived on the scene, they arrested him instead
    of his brother for assault and possession of marijuana.   He
    asserted that he did not have marijuana on his person.    The
    government represented that “the case was ‘No Papered’ when
    reviewed for prosecution by the screening attorney because, among
    other things, the police could not determine who was the initial
    aggressor and the suspect had a good defense.”   (Id. at 4.)12
    McCallum now moves to dismiss the indictment, arguing that a
    retrial is barred by the Double Jeopardy Clause.   Defendant
    argues that the government has violated its obligations to timely
    disclose exculpatory materials, prior witness statements and
    documents.   McCallum contends that the violations constitute a
    pattern of intentional government misconduct and that the
    misconduct has prejudiced his ability to litigate the case.      In
    12
    McCallum does not contest the government’s representations
    regarding the three complaints, but states that “[a]lthough two
    of these individuals subsequently entered a guilty plea in order
    to avoid a sentence of incarceration (the charges against the
    third individual were not pursued by the government), each
    maintains that the charges against him were false.” (Def.’s
    Opp’n to Govt.’s Mot. in Limine to Preclude Evidence Concerning
    Police Complaints at 2.)
    -10-
    the alternative, McCallum asks the court to reconsider and grant
    his motion to suppress the tangible evidence taken from his
    person.   McCallum argues that reconsideration is warranted
    because subsequently produced evidence, particularly the
    recording of Matos’s statements to Internal Affairs, casts doubt
    on Matos’s testimony at the February 11, 2011 suppression hearing
    that McCallum reached into his pocket, despite the fact that his
    hands were handcuffed behind his back, and that a ziplock of
    crack cocaine fell out.   McCallum also contends that additional
    evidence reflecting inconsistences in Chapa’s testimony about how
    the officers handcuffed McCallum casts doubt on Chapa’s testimony
    at the motions hearing in June 2011.   Finally, McCallum argues
    that the MPD property book, disclosed to the defense after the
    suppression ruling, reveals that the crack cocaine allegedly
    recovered from McCallum’s person was actually recovered from
    McCallum’s apartment.   The government argues that it did not
    intentionally provoke McCallum into seeking a mistrial and
    contests the defendant’s interpretation of the subsequently
    disclosed evidence, maintaining that reconsideration of the
    suppression ruling is not warranted.
    The government filed a motion in limine to preclude evidence
    concerning complaints against Chapa and Matos.   The government
    argues that the information is not probative of the officers’
    character for truthfulness and that use of the complaints would
    -11-
    be unduly prejudicial.   McCallum opposes and argues that the fact
    that there are several open complaints against Matos is a proper
    subject of cross-examination in order to demonstrate Matos’s
    motive to shape his testimony against McCallum in order to curry
    favor with the government.13    Defendant further represents that
    “[defense] [c]ounsel also has spoken to a fourth individual who
    submits that Officer Matos arrested him and falsely accused him
    of possessing drugs.”    (Def.’s Opp’n to Govt.’s Mot. in Limine to
    Preclude Evidence Concerning Police Complaints at 2.)       Finally,
    the government has filed a motion in limine to preclude opinion
    and reputation evidence concerning government witnesses Matos and
    Chapa.
    DISCUSSION
    I.   DOUBLE JEOPARDY BAR TO RETRIAL AFTER MISTRIAL
    When an initial trial terminates after jeopardy has attached
    but before judgment, the reasons for the premature termination
    determine whether retrial is barred.        Retrial is generally
    permitted only where the government establishes “manifest
    necessity.”   Arizona v. Washington, 
    434 U.S. 497
    , 505 (1978).
    The manifest necessity standard, however, is not applied in
    circumstances where a mistrial is declared on defendant’s own
    13
    McCallum concedes that he cannot seek to admit the
    complaints as extrinsic evidence. (Def.’s Opp’n to Govt.’s Mot.
    in Limine to Preclude Evidence Concerning Police Complaints at
    2.)
    -12-
    motion.   In the D.C. Circuit, “[t]he rule that a mistrial on
    defendant’s motion generally does not bar retrial is firmly
    established.”    United States v. Jamison, 
    505 F.2d 407
    , 411 (D.C.
    Cir. 1974).   “Such a motion by the defendant is deemed to be a
    deliberate election on his part to forgo his valued right to have
    his guilt or innocence determined before the first trier of
    fact.”    United States v. Scott, 
    437 U.S. 82
    , 93 (1978); see also
    Jamison, 
    505 F.2d at 410
     (describing mistrials on defendants’
    motions as “that category which has most consistently been held
    not to bar further proceedings”).      “[T]he policy of the Double
    Jeopardy Clause, weighed as it always must be against the
    interest of the state in pursuing criminal prosecutions to their
    conclusions, is simply not thought to require that a defendant be
    free of further prosecutions when it was he, and not the judge or
    the prosecutor, who sought to have the original prosecution
    discontinued.”   Jamison, 
    505 F.2d at 412
    .
    The rule is not categorical.      The D.C. Circuit recognized
    that “a judge or prosecutor should not be free to have one trial
    disbanded and another convened by intentionally committing errors
    so prejudicial to the defendant that he is forced to seek a
    mistrial; and, indeed, the Supreme Court has made it clear that
    in such a case of ‘judicial or prosecutorial overreaching,’
    reprosecution might well be barred.”     
    Id. at 411
     (quoting United
    States v. Jorn, 
    400 U.S. 470
    , 485 & n.12 (1971)).      The Supreme
    -13-
    Court articulated the controlling standard governing retrial
    following mistrial on defendant’s motion in Oregon v. Kennedy,
    where it held that “[o]nly where the governmental conduct in
    question is intended to ‘goad’ the defendant into moving for a
    mistrial may a defendant raise the bar of double jeopardy to a
    second trial after having succeeded in aborting the first on his
    motion.”   Oregon v. Kennedy, 
    456 U.S. 667
    , 676 (1982) (emphasis
    added); see also United States v. Dinitz, 
    424 U.S. 600
    , 611
    (1976) (“The Double Jeopardy Clause does protect a defendant
    against governmental actions intended to provoke mistrial
    requests and thereby to subject defendants to the substantial
    burdens imposed by multiple prosecutions.”) (emphasis added).
    Mere negligence on the part of the government is not enough.
    See, e.g., United States v. DiSilvio, 
    520 F.2d 247
    , 250 (3rd Cir.
    1975) (stating that retrial was not barred where defendant
    successfully moved for mistrial because indictment was defective
    due to government’s negligence).   Indeed, “[p]rosecutorial
    conduct that might be viewed as harassment or overreaching, even
    if sufficient to justify a mistrial on defendant’s motion . . .
    does not bar retrial absent intent on the part of the prosecutor
    to subvert the protections afforded by the Double Jeopardy
    -14-
    Clause.”    Oregon v. Kennedy, 
    456 U.S. at 675-76
     (emphasis
    added).14
    McCallum argues that the court should use the “manifest
    necessity” standard, placing the burden on the government to
    justify retrial, rather than the prosecutorial intent standard.
    In particular, McCallum argues that because it was the
    government’s misconduct that caused the defense to request the
    mistrial, this case should be viewed as one in which the mistrial
    was at the government’s behest.   But Oregon v. Kennedy, a case in
    which the prosecutor’s misconduct did precisely that, see 
    456 U.S. at 669
     (discussing facts of case, where prosecutor on
    redirect of expert witness had described the defendant as “a
    crook,” prompting defendant to successfully move for mistrial)
    squarely provides the controlling precedent in such
    circumstances.   Defendant argues that retrial is nonetheless
    barred because, having been deprived of relevant exculpatory
    14
    Oregon v. Kennedy was a plurality opinion, but a majority
    of the justices endorsed the prosecutorial intent standard as the
    most appropriate, and manageable, standard for assessing whether
    a retrial is available after a mistrial is declared on
    defendant’s motion. See Oregon v. Kennedy, 
    456 U.S. at 675
    (concluding that “a standard that examines the intent of the
    prosecutor, though certainly not entirely free from practical
    difficulties, is a manageable standard to apply”); 
    id. at 679
    (Powell, J., concurring) (“I join the Court’s opinion holding
    that the intention of a prosecutor determines whether his
    conduct, viewed by the defendant and the court as justifying a
    mistrial, bars a retrial of the defendant under the Double
    Jeopardy Clause.”) (emphasis in original).
    -15-
    evidence, he did not knowingly waive his double jeopardy rights
    when he moved for a mistrial.
    The D.C. Circuit, however, has rejected the theory that a
    defendant-initiated mistrial should be judged according the
    principles of waiver.   In Jamison, 
    505 F.2d at 413
    , the court
    reasoned that were it to “treat mistrial motions as waivers of
    double jeopardy protection . . . [d]efendant would . . . be
    protected from multiple prosecutions brought about not by the
    government but by the errors or misjudgments of his own
    counsel[,]” and concluded that “this goes too far, and hence we
    decline to decide the double jeopardy effect of mistrials by
    reference to the rules of waiver.”     Defense counsel’s arguments
    regarding her reasons for seeking mistrial, albeit as an
    alternative remedy to striking the officers’ testimony, show that
    counsel was engaged in a careful weighing of the pros and cons of
    the option.   Counsel explained that her determination to move for
    a mistrial was informed by her belief that “she had exposed every
    weakness she could find in the government’s case,” and “knew that
    if a retrial was held, the government would have the advantage of
    knowing the defense and these weaknesses.”    (Def.’s Mot. to Dis.
    Indmt. at 17.)   Counsel nonetheless concluded that mistrial was
    the better alternative.   Counsel argues that had she had the
    information regarding the prior complaints against the officers,
    she would have moved forward with cross-examination on the
    officers’ character for truthfulness and would not have requested
    -16-
    a mistrial.   (Id.)   For reasons that are explained below,
    evidence regarding the complaints will be precluded on retrial.
    In any event, considerations of the type recounted regarding the
    benefits of proceeding with the same jury or seeking retrial are
    quintessential strategic judgments of counsel and, even where
    those judgments are colored by the conduct or misconduct of
    government counsel, they remain the defendant’s own
    determinations absent a showing that the prosecutor intended his
    conduct to provoke the determination to seek a mistrial.
    Applying the Oregon v. Kennedy test then, the question is
    whether the prosecutor goaded McCallum into requesting a
    mistrial.   In considering this inquiry, the case law that is
    discussed above focuses on the prosecutor’s actions at trial,
    rather than over the course of the entire litigation.    In
    addition, “[b]ecause ‘subjective’ intent often may be
    unknowable,” reliance on “the objective facts and circumstances
    of the particular case” may guide the analysis.    Oregon v.
    Kennedy, 
    456 U.S. at 679-80
     (Powell, J., concurring).
    Here, the first two instances of misconduct relate to Brady
    violations with respect to defendant’s presentation of evidence
    at the suppression hearing.   The second two instances fault the
    government for providing potentially exculpatory Jencks material
    on the morning before trial began.     It is the fifth incident --
    the government’s failure to produce before trial the oral
    recordings of Matos’s and Chapa’s written statements to Internal
    -17-
    Affairs -- that could most closely qualify as misconduct that
    provoked McCallum to move for a mistrial.    Upon consideration of
    the parties’ representations regarding the government’s late
    discovery of the recordings and prompt efforts thereafter to
    produce the recordings to the defendant, however, the court did
    not find that there was any intentional withholding of Jencks
    material by the government, and did not find any willful conduct
    on the part of the prosecutor.    Rather, the court characterized
    the Jencks violation as unintentional and unfortunate.   The
    government, moreover, expressly, and apparently genuinely,
    objected to the motion for mistrial and proposed reopening cross-
    examination of the officers instead.    The defendant does not
    explain why the prosecution would have wanted a mistrial in the
    circumstances.   Given McCallum’s arguments that the third,
    fourth, and fifth misconduct incidents (and the post-trial sixth
    and seventh incidents, as well) had prejudiced the defendant’s
    ability to mount a successful defense at trial, it is entirely
    unclear why the government would have wanted to terminate a trial
    in which it enjoyed the presumptive advantage resulting from the
    asserted cumulative prejudice to McCallum.   Arguably, the four
    pre-trial instances of misconduct might provide a basis for
    inferring that the failure to provide the recorded statements was
    intentional.   But the Oregon v. Kennedy standard focuses not, or
    at least not only, on whether the misconduct was intentional, but
    on whether the prosecutor intended the misconduct to goad the
    -18-
    defendant into seeking a mistrial.    Because the facts here
    indicate that the prosecutor’s conduct was neither intentional
    nor intended to provoke a mistrial, retrial of McCallum is
    permitted.
    II.   RECONSIDERATION OF RULING DENYING MOTION TO SUPPRESS
    Courts in this district have uniformly assumed their
    authority to entertain motions for reconsideration in criminal
    cases.   See, e.g., United States v. Coughlin, 
    821 F. Supp. 2d 8
    ,
    17-18 (D.D.C. 2011) (collecting cases).   One line of cases
    applies the standard applicable to motions to alter or amend a
    final judgment under Federal Rule of Civil Procedure 59(e), see,
    e.g., United States v. Libby, 
    429 F. Supp. 2d 46
    , 46-47 (D.D.C.
    2006), under which a movant may prevail by identifying an
    intervening change of controlling law, the availability of new
    evidence, or the need to correct a clear error or prevent
    manifest injustice.   Other cases apply the “as justice requires”
    standard for reconsideration of interlocutory orders.   Coughlin,
    821 F. Supp. 2d at 18 (internal quotation marks omitted).      That
    standard asks whether reconsideration is warranted under the
    totality of the circumstances, including such factors as “whether
    the court has patently misunderstood a party, has made a decision
    outside the adversarial issues presented to the court by the
    parties, has made an error not of reasoning, but of apprehension,
    or where a controlling or significant change in the law or facts
    has occurred since the submission of the issue to the court.”
    -19-
    Ficken v. Golden, 
    696 F. Supp. 2d 21
    , 35 (D.D.C. 2010) (internal
    quotation marks and alterations omitted).
    Under either standard, the availability of new evidence
    bearing on the reliability of the testimony given by government
    witnesses at the suppression hearing -- particularly the
    officers’ statements to internal affairs -- entitles McCallum to
    reconsideration of the ruling on his motion to suppress.
    However, the alleged inconsistencies brought to light by the
    recordings of Matos’s and Chapa’s statements (Def.’s Notice of
    Filing Add’l Exs. to Def.’s Mot. to Dis. Indmt. (“Def.’s Add’l
    Exs.”), Ex. C; Def.’s Reply, Ex. E) do not alter the
    determination to credit the officers’ account of how they
    retrieved narcotics from McCallum’s person.   Defendant details
    the series of allegedly inconsistent statements in his reply
    brief.   (Def.’s Reply to Govt.’s Resp. Mem. in Opp’n to Def.’s
    Mot. to Dis. Indmt. at 13-14.)    Given that the statements are
    drawn from three different proceedings over a period of several
    months, the statements appear to reflect differences in word
    choice and emphasis rather than any obvious inconsistency.   The
    strongest argument for inconsistency is Matos’s recorded
    statement, to MPD internal affairs, that the officers put
    McCallum in two pairs of handcuffs “because he say he has
    something with his hip and he couldn’t get in the car, we said,
    we make you comfortable because he’s a big guy.”   (Def.’s Add’l
    Exs., Ex. C at 21:08.)   Defendant maintains that this statement
    -20-
    demonstrates that “Mr. McCallum was not placed into two pairs of
    handcuffs until the officers tried to put him in the police car
    -- long after Mr. McCallum supposedly reached into his pocket
    [and the zip locks of cocaine fell out].”    (Def.’s Reply to
    Govt.’s Resp. Mem. in Opp’n to Def.’s Mot. to Dis. Indmt. at 14-
    15.)   Although Matos’s statement might be read as defendant
    suggests, it may also be read to state general reasons for why
    two handcuffs were employed rather than to indicate the exact
    moment in time McCallum was handcuffed in the manner described.
    The internal affairs investigator asked Matos only why the
    officers used two handcuffs.   (Def.’s Add’l Exs., Ex. C at
    21:06.)   She did not ask precisely when the officers put them on.
    The government also noted, and McCallum does not appear to
    contest, that the officers removed and re-handcuffed McCallum at
    least once to enable him to sign a consent form, indicating that
    the officers’ prior statements about handcuffing McCallum may
    have referred to different points in time.
    Neither does the subsequently disclosed property book filled
    out by Matos (Def.’s Add’l Exs., Ex. B) call into question the
    determination to credit the officers’ testimony.   McCallum
    attaches significance to the fact that the first property book
    entry, reflecting that cash was recovered from defendant’s person
    as a result of the search outside the building, states the cash
    was “taken from” McCallum and lists an address of “1414 Upshur
    Street NW,” while the subsequent entries, reflecting recovery of
    -21-
    narcotics, state the narcotics were “taken from” McCallum but
    list an address of “1414 Upshur Street NW 105” (emphasis added).
    McCallum maintains that the inclusion of the apartment number
    (105) in the latter entries indicates that the narcotics were
    recovered from the apartment.   (Def.’s Add’l Exs. at 1.)   The
    slight inconsistency in the address entries does not discredit
    the testimony offered by both Matos and Chapa that narcotics were
    recovered from defendant’s person when defendant was seated
    outside the apartment building.15   The difference between the
    entries is insufficient to outweigh the largely consistent
    testimony of the two officers regarding the recovery of narcotics
    from defendant’s person.16
    15
    The government has submitted a sworn affidavit from Matos
    who asserts that “[t]he entries in the property book in no way
    reflect, or are intended to reflect, the exact location where the
    defendant was positioned when evidence was recovered from him,
    and it does not reflect, and it was not intended to reflect, the
    exaction [sic] location where any of the evidence was recovered,
    at the scene on July 28, 2010.” (Govt.’s Resp. Mem. in Opp’n to
    Def.’s Mot. to Dis. Indmt., Ex. 1.)
    16
    McCallum also argues for reconsideration of the court’s
    ruling that the officers did not commit a Miranda violation when
    they conducted a Terry stop of him. (Def.’s Mot. to Dis. Indmt.
    at 8 n.1; Def.’s Reply to Govt.’s Resp. Mem. in Opp’n to Def.’s
    Mot. to Dis. Indmt. at 15-17.) McCallum contends that the court
    erred by applying a categorical rule that Terry stops do not
    warrant Miranda warnings. Defendant’s request to reconsider the
    Miranda ruling would affect the admission only of defendant’s
    statements, not of the narcotics allegedly recovered from his
    person since the “fruit of the poisonous tree” doctrine does not
    apply when the fruit of a Fifth Amendment violation is tangible
    evidence. United States v. Patane, 
    542 U.S. 630
    , 637, 641 (2004)
    (reasoning that since Miranda warnings are prophylactic, a
    failure to give them is not alone a Fifth Amendment violation,
    and that potential violations of a defendant’s Fifth Amendment
    -22-
    III. ADMISSIBILITY OF EVIDENCE OF POLICE COMPLAINTS
    The D.C. Circuit has recognized repeatedly that “bias is
    always a relevant subject for cross-examination.”   United States
    v. Lin, 
    101 F.3d 760
    , 768 (D.C. Cir. 1996).   The Circuit has
    acknowledged that “defense counsel cannot have a foundation in
    fact for all questions asked on cross examination and . . . a
    well reasoned suspicion that a circumstance might be true is
    sufficient.”   United States v. Fowler, 
    465 F.2d 664
    , 666 (citing
    United States v. Pugh, 
    436 F.2d 222
    , 224 (D.C. Cir. 1970)).
    Cross-examining counsel, however, “must have a reasonable basis
    for asking questions on cross-examination which tend to
    incriminate or degrade the witness and thereby create an
    unfounded bias which subsequent testimony cannot fully dispel.”
    United States v. Sampol, 
    636 F.2d 621
    , 658 (D.C. Cir. 1980).
    “[T]he questioner must be in possession of some facts which
    support a genuine belief that the witness committed the offense
    or the degrading act to which the question relates.”   Fowler, 465
    F.2d at 666.   Counsel therefore must demonstrate that “the
    proposed line of cross-examination follow[s] a lead reasonably
    suggested by other facts in evidence.”   Lin, 101 F.3d at 768.
    rights “occur, if at all, only upon the admission of unwarned
    statements into evidence at trial”). Reconsideration of the
    Miranda ruling is not warranted in any event, as the ruling was
    made not in reliance on a categorical rule but on the
    circumstances surrounding the Terry stop of McCallum.
    -23-
    In United States v. Wilson, 
    605 F.3d 985
     (D.C. Cir. 2010),
    the D.C. Circuit addressed defendants’ appeal of their
    convictions of various narcotics crimes on the grounds that the
    government committed a Brady violation when it failed to disclose
    evidence about the internal investigation, and resulting
    suspension without pay, of a police officer who had been a
    government witness.   The court, agreeing that disclosure was
    required, acknowledged that “based upon her suspension, [the
    officer] could have been motivated to testify falsely against
    appellants in order to curry favor with the government,” and that
    this motive could be argued to the jury with regard to “the fact
    that she was being investigated at all,” regardless of the
    subject matter of the investigation.    
    Id. at 1006
    .   The court,
    however, noted that a high risk of potential prejudice counseled
    against cross-examination regarding the specific nature of the
    investigation:
    Even assuming information about the subject matter of
    the investigation was probative of bias, the district
    court would properly have excluded cross-examination
    pursuant to Rule 403 because “its probative value [wa]s
    substantially outweighed by the danger of unfair
    prejudice.” Fed. R. Evid. 403. As the district court
    concluded, the “prejudice to this officer given the
    uncertainty of the [allegations] is quite high, the
    prejudice to her career and her credibility is quite
    high.” Mar. 27, 2006 Ex Parte Tr. at 10. That risk of
    prejudice would have substantially outweighed the
    minimal probative value of the evidence.
    
    Id.
     (alterations in original).    The court moreover reaffirmed
    that “‘the mere filing of a complaint [against a witness] is not
    -24-
    probative of truthfulness or untruthfulness.’”   
    Id. at 1005
     (D.C.
    Cir. 2010) (quoting United States v. Morrison, 
    98 F.3d 619
    , 628
    (D.C. Cir. 1996) (emphasis in original) (finding no abuse of
    discretion where trial court sustained an objection to a cross-
    examination question put to a government witness asking if
    someone had earlier filed a court complaint against her)).    In
    Wilson, the D.C. Circuit emphasized that cross-examination
    “[w]ithout additional evidence of wrongdoing beyond bald
    assertions” and “based on unproven allegations” is impermissible.
    Wilson, 
    605 F.3d at 1005
    .   Cf. United States v. Whitmore, 
    359 F.3d 609
    , 614 (D.C. Cir. 2004) (concluding that a defendant
    should have been allowed to cross-examine a police officer
    witness about a “D.C. Superior Court judge’s finding that [the
    officer] had lied” in an unrelated criminal trial).
    The Seventh and Eleventh Circuits have both considered
    specifically the propriety of cross-examination regarding
    complaints against police officers.   See United States v. Holt,
    
    486 F.3d 997
    , 1000-02 (7th Cir. 2007); United States v. Taylor,
    
    417 F.3d 1176
    , 1178-81 (11th Cir. 2005).   In Holt, the defendant
    sought to cross-examine two police officer witnesses, one of whom
    had received a suspension for conduct occurring several years
    before the defendant’s arrest and both of whom “[b]ased upon an
    unrelated complaint . . . were . . . reprimanded for neglect of
    duty.”   Holt, 
    486 F.3d at 1001
    .   The Seventh Circuit affirmed the
    trial court’s decision to allow the defense to ask the officer
    -25-
    witness who had been suspended whether “he had ever engaged in a
    particular course of conduct,” 
    id. at 1001
    ,17 but to prohibit
    asking about the discipline the officer had received, 
    id. at 1002
    .        With regard to the complaints, the Seventh Circuit
    reasoned that the key factor determining whether cross-
    examination regarding complaints was proper is its bearing on
    truthfulness.       The circuit court accordingly affirmed the trial
    court’s decision to exclude questioning regarding the complaints
    because “th[e] evidence [of police complaints] was not even
    relevant . . . because it did not bear on the[] [officers’]
    characters for truthfulness”).       
    Id.
        In Taylor, the Eleventh
    Circuit addressed a case in which the defendant wanted to cross-
    examine a government witness regarding prior citizens’ complaints
    against him for, among other things, allegedly planting evidence,
    even though the allegation of evidence fabrication had been
    determined to be unfounded by the internal affairs investigation.
    A separate complaint alleging brutality indicated that the
    officer was “under investigation.”         The defendant argued that the
    complaints were relevant to prove the officer was biased, had a
    tendency for being untruthful, and thus may have planted drugs on
    the defendant.       Taylor, 
    417 F.3d at 1178-79
    .18   The Eleventh
    17
    The facts of the case do not make clear what precise
    conduct led to the suspension.
    18
    McCallum does not accurately characterize the facts of
    Taylor, contending that “[i]n Taylor, the defendant sought only
    to admit or refer to the complaints, rather than cross-examine
    -26-
    Circuit, however, upheld the district court’s ruling to preclude
    cross-examination because the complaints were unproven and there
    was no evidence the officer had been disciplined for the conduct.
    Further, the court noted that the defendant “failed to proffer
    the testimony of any witness who might testify that [the officer]
    had engaged in any of the alleged acts but instead chose to
    simply refer to Internal Affairs documents to support his theory
    that [the officer] had a history of planting evidence on
    arrestees and had a character for untruthfulness and racial
    bias.”   
    Id. at 1180
     (emphasis omitted).   Both Taylor and Holt
    support the proposition that cross-examination about complaints
    or the conduct underlying them is improper unless there is some
    basis for inferring the soundness of the allegations against the
    officers (as, for example, in Holt where the alleged misconduct
    had led to the officer’s suspension).
    With regard to the three complaints disclosed to the
    defense, the circumstances thus far do not support a reasonable
    belief that the allegations in the complaints are true.    Two of
    the three complainants subsequently pled guilty to possessing the
    substances that they had previously alleged had been planted.
    regarding the substance of the complaints.” (Def.’s Opp’n to
    Govt.’s Mot. in Limine to Preclude Evidence Concerning Police
    Complaints at 4 n.1.) The facts are clear, however, that the
    defendant “advised the district court that he intended to cross-
    examine [the police officer witness] regarding prior citizens’
    complaints against him.” Taylor, 
    417 F.3d at 1178
     (emphasis
    added).
    -27-
    Although the third complainant, who alleged that marijuana had
    been planted on him, was not prosecuted, McCallum has not
    proffered evidence tending to establish the truth of the
    allegations made by that complainant or the others aside from the
    contention that each of the complainants “maintains that the
    charges against him were false.”   (Def.’s Opp’n to Govt.’s Mot.
    in Limine to Preclude Evidence Concerning Police Complaints at
    2.)   Without more, these are the type of “unproven allegations,”
    Wilson, 
    605 F.3d at 1005
    , that are unsuited as evidence probative
    of the character for truthfulness of the witnesses.19
    With regard to the seven open complaints against Matos, as
    well, the current record reflects “[no] additional evidence of
    wrongdoing beyond bald assertions.”   Wilson, 
    605 F.3d at 1005
    .
    Unlike in Wilson, where the officer was actually under
    investigation and indeed suspended for misconduct, and the
    district judge was found properly to have allowed the defendant
    to cross-examine the officer regarding her knowledge of the
    investigation in order to demonstrate a motive to curry favor,
    the current record does not reflect that Matos has been subject
    19
    With regard to McCallum’s representation that there is a
    “fourth individual who submits that Officer Matos arrested him
    and falsely accused him of possessing drugs” (Def.’s Opp’n to
    Govt.’s Mot. in Limine to Preclude Evidence Concerning Police
    Complaints at 2), McCallum has not proffered sufficient facts
    from which to determine the propriety of conducting cross-
    examination of Matos about this individual.
    -28-
    to disciplinary action.20   Arguably, where complaints have yet to
    be found proven or not proven, their open status might be
    construed as reflecting an investigation of the officer.    While
    the OPC investigates the circumstances of filed complaints to
    determine whether they are founded, the probative value of
    inquiring into Matos’s potential bias to testify favorably to the
    prosecution in order to avoid discipline is slight where, as
    here, the facts alleged in the open complaints do not demonstrate
    any credible threat of such discipline.21    For these reasons,
    McCallum may not elicit on cross-examination the fact that any of
    these complaints has been filed with the OPC against Matos or
    Chapa or what a complaint alleged.     The government’s motions to
    preclude evidence of police complaints will be granted subject to
    the government’s update about the status of the seven open
    complaints.
    IV.   ADMISSIBILITY OF OPINION AND REPUTATION EVIDENCE
    In order to offer reputation evidence under Federal Rule of
    Evidence 608(a), “a party must establish that the character
    witness is qualified by having an ‘acquaintance with [the
    witness],’ his ‘community,’ and ‘the circles in which he has
    20
    However, the government will be directed to update the
    status of the seven open complaints.
    21
    Wilson suggests that there may also be some risk that such
    questioning could prejudice Matos and that such prejudice could
    be undue given the uncertainty of the allegations. Wilson, 
    605 F.3d at 1006
    . Given the nature of the open complaints, though,
    that risk is not determinative here.
    -29-
    moved, as to speak with authority of the terms in which generally
    [the witness] is regarded.’”   Whitmore, 
    359 F.3d at 616
     (quoting
    Michelson v. United States, 
    335 U.S. 469
    , 478 (1948)).
    Reputation testimony, however, need not be derived from the
    witness’s residential community and a character witness need not
    physically reside in that community.   
    Id.
     at 617 n.3.    “[T]he
    foundational requirement for opinion evidence regarding a
    witness’s character for truthfulness is less stringent than that
    for reputation evidence.”   
    Id. at 617
     (emphasis in original).     A
    witness’s opinion testimony must be based on underlying facts
    that demonstrate that the opinion is rationally based on the
    first-hand perception of the witness and would be helpful to the
    jury in evaluating the subject’s truthfulness.   
    Id. at 618
    .
    The government asks the court to preclude character witness
    testimony unless and until McCallum proffers sufficient facts or
    evidence that establish that any potential character witness has
    a sufficient knowledge about an officer’s reputation in the
    community for truthfulness or untruthfulness, or proffers a
    sufficient basis to offer an opinion about an officer’s
    reputation for truthfulness.   McCallum has acknowledged his
    obligation to present a foundation for such testimony.    In the
    absence of any specific proffer to call character witnesses,
    ruling on the government’s motion will be deferred.   Upon a
    proffer, the relevant factors to assess will include the
    -30-
    proximity in time of the witness’s contact, the extent of the
    witness’s contacts with the community, the extent of the
    witness’s interaction with the officer whose character is being
    impeached, and the factual support for the testimony offered.
    
    Id. at 616-18
    .
    CONCLUSION AND ORDER
    Double jeopardy does not bar retrial in this case, and the
    denial of McCallum’s motion to suppress is reaffirmed.     Subject
    to the government’s update about the status of the seven open
    complaints, cross-examination eliciting the fact that OPC
    complaints were filed or their contents will not be permitted at
    retrial.   Accordingly, it is hereby
    ORDERED that the defendant’s motion [58] to dismiss the
    indictment be, and hereby is, DENIED.   It is further
    ORDERED that the government’s motions [59, 63], insofar as
    they seek to preclude cross-examination eliciting the fact that
    the OPC complaints were filed or their contents, be, and hereby
    are, GRANTED subject to the government’s notice updating the
    status of the seven open complaints against Matos.   The
    government is directed to file that notice by September 4, 2012.
    It is further
    ORDERED that a ruling on the government’s motion [64] to
    preclude opinion and reputation evidence be, and hereby is,
    DEFERRED until the retrial.   It is further
    -31-
    ORDERED that the parties appear for a scheduling conference
    on September 10, 2012 at 10:15 a.m. in order to set a date for
    the retrial.
    SIGNED this 13th day of August, 2012.
    /s/
    RICHARD W. ROBERTS
    United States District Judge