271 F.3d 274 (D.C. Cir. 2001)
United States of America, Appelleev.Pernell J. Sumlin, Appellant
No. 00-3056
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2001
Decided November 9, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia  (No. 99cr00164-01)
Robert S. Becker, appointed by the court, argued the cause and filed the brief for appellant.
Elana Tyrangiel, Assistant U.S. Attorney, argued the cause for appellee.  With her on the brief were Kenneth L.  Wainstein, U.S. Attorney at the time the brief was filed, John R. Fisher, Roy W. McLeese III and John Crabb Jr., Assistant U.S. Attorneys.
Before:  Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Pernell Sumlin was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine basein violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(ii); unlawful distribution of 5 grams or more of cocaine base in violation of 21 U.S.C.841(a)(1)(B)(iii); and, unlawful distribution of 500 grams or more of cocaine and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1),  841(b)(1)(B)(ii) and 18 U.S.C.2.  Sumlin appeals, arguing that the Government impermissibly introduced evidence relating to his "prior bad acts" and improperly bolstered the credibility of its paid informant.  Sumlin also argues that his convictions should be overturned because the evidence presented at trial established entrapment as a matter of law. Finding no merit to Sumlin's arguments, we affirm his convictions.

I. Facts

2
The parties agree that appellant Sumlin and Kevin Goode  first met in the spring of 1998 when they both worked in the  same downtown D.C. office building.  Goode, having pleaded  guilty to a drug offense in 1997, was cooperating with the  DEA on various drug investigations.  Beyond that, the parties' versions of the events leading to Sumlin's arrest differ  somewhat.  According to the government, Sumlin told Goode  in mid-1998 that he was involved in the drug trade and that  he had a drug connection in Indiana, one "Mike Turio," who  supplied him with cocaine.  Also according to the government, Sumlin told Goode that he had "purchased a kilo" of  cocaine, and had mentioned his drug source to Goode on at  least two subsequent occasions.


3
In the spring of 1999, with the assistance of Goode, the  DEA began investigating Sumlin and his purported connection in Indiana.  In late March or early April of that year, the  DEA directed Goode to contact Sumlin.  Goode did so, and on  April 2, 1999, Goode and Sumlin made arrangements for Sumlin to sell 62 grams of cocaine to Goode.  That night,  Sumlin, Goode, and undercover law enforcement officer Percel Alston (posing as Goode's cousin) met in a Maryland  restaurant to complete the transaction.  At the time of the  meeting, however, Sumlin indicated that the cocaine had not  yet been converted into crack and that he needed to meet  with his "source."  Sumlin left the restaurant and did not  return.  However, in a conversation with Goode the following  day, the two made arrangements to complete the transaction. Thus, on April 6, 1999, Sumlin sold 62 grams of crack cocaine  to Goode and Alston for $2100.  During this drug sale, Sumlin  discussed "Mike" and his own travel to Indiana.  After the  sale was completed, Sumlin told Alston and Goode that he  had an additional kilogram of cocaine to sell and that Goode  and Alston should contact him if they needed any additional  cocaine.  Goode and appellant subsequently arranged a deal  for Sumlin to sell five kilograms of cocaine for $125,000. Sumlin asked an acquaintance, Daniel Clayton, to supply the  cocaine for the upcoming sale.  Clayton provided four kilograms of cocaine to Sumlin, who then met with Goode on  April 15, 1999.  After giving the cocaine to Goode, Sumlin was  arrested.


4
Prior to trial and over Sumlin's objection, the court ruled  that the government could introduce, under Federal Rule of  Evidence 404(b), evidence that Sumlin pleaded guilty to drug  trafficking in 1989, and had engaged in uncharged drug  transactions in 1998.  This latter evidence, according to the  government's proffer, would include testimony from Clayton  that he and Sumlin had engaged in prior cocaine transactions  together in amounts ranging from nine ounces to a kilogram,  as well as evidence from Goode regarding Sumlin's statements that he was involved in drug trafficking.  The government also introduced at trial--without objection--statements  from Sumlin regarding his experience as a drug dealer; testimony from Goode elaborating and interpreting Sumlin's  statements regarding his Indiana contact, Mike;  and, testimony from DEA Agent Michael Dukovich regarding the  DEA's investigation into a possible drug source in Indiana. The government also introduced, again without objection, testimony from DEA Agent Albert Perry regarding Goode's  record for assisting the DEA in other drug investigations.


5
Sumlin testified in his own defense that he was an unwilling  participant in the drug sales and that Goode called him  between 40 and 50 times before he agreed to participate in  the transactions at all.  Sumlin also testified that he only  learned of Clayton and Clayton's drug connections through a  friend, that he lied to Goode and Alston about his drug  connections during the April 6 drug deal, and that he acted  like a drug dealer for "safety reasons."  Sumlin further  testified that he was unfamiliar with the drug jargon used by  Goode and Alston, and produced a witness (his wife) who  testified that he lacked the overt signs of participation in the  drug trade such as expensive cars and clothing.  Finally,  Sumlin testified that he made up the story of "Mike," his  alleged drug source.


6
On appeal, Sumlin challenges his convictions on grounds  the trial court erred in allowing testimony from Goode and  Agent Dukovich regarding "Mike" and the DEA's investigation into an Indiana drug source, as well as testimony from  Agent Perry regarding Goode's record for assisting the DEA. Sumlin also argues that he was entrapped, as no reasonable  jury could have concluded that he was predisposed to commit  the crimes for which he was convicted.  We address, and  dismiss, each of his arguments in turn.

II. Analysis
A. Rule 404(b) Evidence

7
Prior to trial, the government filed notice of its intent to  present, under Fed. R. Evid. 404(b), "other crimes evidence." See Government's Notice of Intent to Introduce Other Crimes  Evidence Pursuant to Federal Rule of Evidence 404(b), United States v. Sumlin, Cr. No. 99-164 (RWR) (D.D.C. Jan. 5,  2000).  "Other crimes evidence" is admissible under Rule  404(b) if it is relevant, probative of a material issue other than  the defendant's character, and more probative than prejudicial.  See United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000);  see also United States v. Bowie, 232 F.3d 923, 930  (D.C. Cir. 2000).  In addition, such evidence is admissible  only if all of the evidence at trial is "sufficient to support a  jury finding that the defendant committed the other crime or  act."  Bowie, 232 F.3d at 930 (citing Huddleston v. United  States, 485 U.S. 681, 689-90 (1988)).


8
The Government intended to introduce evidence of Sumlin's  past guilty plea to drug distribution in 1989, and his uncharged participation in drug trafficking during 1998.  At a  hearing before the district court, the Government proffered  the testimony of Clayton, who would testify about his direct  participation with Sumlin in past drug transactions, and Kevin Goode, who would testify about comments Sumlin made  indicating his involvement in the drug trade.  Over Sumlin's  objection, the district court ruled in favor of allowing the  testimony, subject to Sumlin renewing his objection at trial. At trial, the government introduced its proffered evidence,  but Sumlin did not renew his objection.


9
Sumlin now argues that the district court abused its discretion and committed prejudicial error in admitting certain  "other crimes evidence" through the testimony of Goode and  DEA Agent Mike Dukovich.  Specifically, Sumlin argues that  in granting the Government's motion to introduce testimony  under Fed. R. Evid. 404(b), the district court ruled only that  the Government could introduce evidence concerning 1) Sumlin's guilty plea to crack cocaine distribution in 1989, and  2) evidence that Sumlin received and sold crack cocaine in  1998.  Sumlin asserts that the district court wrongly allowed  testimony from Goode concerning Sumlin's alleged association  with "Mike Turio," and testimony from Agent Dukovich concerning an open investigation in Indiana as to a possible  source of drugs.  Because the Government's proffer at the  hearing made no mention of "Mike Turio" or of Sumlin's  alleged connection to Indiana, Sumlin argues that it was error  for the district court to admit this evidence at trial.  Sumlin  contends that it was this particular evidence that caused a  jury to conclude that he was engaged in drug trafficking. Therefore, he claims he was prejudiced by its admission.


10
The Government, however, argues that although Sumlin  objected to its proffered evidence at the hearing before the  district court, he did not object to its introduction at trial. Accordingly, the proper standard of review is one of plain  error, not abuse of discretion.  The Government continues  that even if it was error for the district court to admit the  testimony, Sumlin did not suffer any prejudice from the  admission of the testimony because additional, unobjected-to  evidence was admitted such that a jury could have concluded  that he participated in drug trafficking.


11
We agree with the Government that even if it was error for  the district court to admit the challenged testimony, Sumlin is  not entitled to remedial action.  We note that our analysis  remains unchanged whether we apply the more lenient abuse  of discretion standard, as suggested by Sumlin, or the less  forgiving plain error standard, as suggested by the Government.  This is so because both standards require a finding  that the district court's error affected the defendant's substantial rights.  See Fed. R. Crim. P. 52;  see also United  States v. Olano, 507 U.S. 725, 731 (1993).  Thus even assuming error, Sumlin has nonetheless failed to establish that the  admission of both Goode's and Agent Dukovich's testimony  "affected the outcome of the district court proceedings." Olano, 507 U.S. at 734.


12
First, Sumlin does not contest the district court's decision  to allow Clayton's statements regarding Sumlin's experiences  as a drug dealer.  He concedes that these statements are  admissible under Federal Rule of Evidence 801(d)(2) as party  admissions.  This unchallenged evidence includes Clayton's  testimony that Sumlin said he was involved in the drug trade,  that he "was receiving about a 'ki'[logram] a week to a week  and a-half," and that he had a "connection through Indiana"  for receiving drugs.  Moreover, Goode's unchallenged testimony includes Sumlin's admissions that he had a drug supplier in Indiana named Mike Turio.  Yet Sumlin argues that it  was Goode's unsupported explanation of his relationship with  Mike Turio at trial that caused the jury to find that he was  involved in drug trafficking.  This challenged evidence, however, pales in comparison to Sumlin's own damaging admissions regarding his past involvement in drug trafficking.  Any  error in admitting Goode's testimony was harmless.


13
Second, Sumlin challenges Agent Dukovich's testimony concerning an open investigation into an Indiana drug source. Specifically, Sumlin argues that because the DEA never  established a connection betweenSumlin and Indiana or Mike  Turio, it was error for the district court to admit Agent  Dukovich's testimony concerning the DEA's investigative efforts in Indiana.  Error results, Sumlin argues, because  "[o]nly with the addition of [Agent] Dukovich's testimony that  a person in Ft. Wayne [Indiana] was under DEA investigation did the allegations become sufficient for a jury to conclude" that Sumlin was involved in a drug trafficking conspiracy.  This argument lacks merit.  Whether Sumlin received  drugs from Indiana or India makes no difference.  The  unchallenged evidence easily established that Sumlin and  Clayton received and distributed drugs in 1998.  From where  or from whom is of little consequence.  Moreover, defense  counsel succeeded at trial in showing that the DEA never  confirmed a relationship between Sumlin and Mike Turio. Again, even assuming it was error to admit Agent Dukovich's  testimony concerning the DEA's investigation in Indiana,  Sumlin did not suffer prejudice.  Because Sumlin has not  established prejudice, he is not entitled to relief.

B. Bolstering

14
Sumlin next asserts that the district court erred by admitting DEA Agent Perry's testimony regarding Goode's cooperation with the DEA in previous drug investigations.  Sumlin  argues that this evidence was irrelevant, improper "bolstering" more prejudicial than probative, and should not have  been admitted.1  We disagree.


15
Here Sumlin and the Government agree that the district  court's decision to admit Agent Perry's testimony is reviewed  for plain error because Sumlin did not object to its introduction at trial.  Fed. R. Crim. P. 52(b);  United States v.  Spriggs, 102 F.3d 1245, 1257 (D.C. Cir. 1996).  As used in  Rule 52(b), " '[p]lain' is synonymous with 'clear' or, equivalently, 'obvious.' "  Olano, 507 U.S. at 734.  In determining  whether an error is "plain," we recognize that "[a]t a minimum, [a] court of appeals cannot correct an error pursuant to  Rule 52(b) unless the error is clear under current law."  Id. The plain error must also affect "substantial rights."  Id. Usually, an error affecting substantial rights is one that is  prejudicial, or, in other words, one that "affected the outcome  of the district court proceedings."  Id.  A decision to correct  such an error, however, remains within our "sound discretion," which "should not [be] exercise[d] ... unless the error  seriously affect[s] the fairness, integrity, or public reputation  of judicial proceedings."  Id. at 732 (internal quotations omitted).  Under this standard of review, the district court's  decision to admit testimony concerning Goode's prior cooperation with the DEA was not error, plain or otherwise, and  certainly did not affect the outcome of the district court  proceedings.


16
Sumlin's first challenge to Agent Perry's testimony is that  it was irrelevant under Fed. R. Evid. 401.  This challenge  need not detain us long.  Evidence is relevant if it has "any  tendency to make the existence of any fact that is of consequence to the determination of the action more probable or  less probable than it would be without the evidence."  Fed. R.  Evid. 401.  In United States v. Smith, 232 F.3d 236 (D.C. Cir.  2000), we dismissed a relevance challenge under similar circumstances on grounds that the fact a paid informant "has  informed and testified truthfully in the past under his plea  agreement certainly bears on his response to similar pressures and temptations in the present."  Id. at 241.  Finding  no reason to depart from our reasoning in Smith, we reject  Sumlin's claim that Perry's testimony was irrelevant.


17
We interpret Sumlin's next challenge as one of improper  "bolstering" under Rule 608(b).  Rule 608(b) states that


18
[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.  They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.


19
Fed. R. Evid. 608(b).  The testimony to which Sumlin now  objects includes statements from Agent Perry that Goode had  assisted the DEA in other investigations that resulted in  numerous arrests.  This testimony, however, followed Sumlin's efforts to impeach Goode's credibility by questioning the  arrangements of his plea agreement with the DEA.  Certainly, revealing a witness' bias is an acceptable method of  attacking a witness' credibility.  See United States v. Abel,  469 U.S. 45, 50-52 (1984).  Equally acceptable, though, may  be testimony that tends to rebut bias.  In Smith, we recognized that our sister circuits did not agree on "the point at  which impermissible 'bolstering' ends and permissible use of  past cooperation to rebut bias begins."  232 F.3d at 242.  We  did, however, identify the threshold question under Rule  608(b) as:  "For what purpose has the prosecution offered the  extrinsic evidence?"  Id.  If offered only to bolster an informant's credibility, the extrinsic evidence is barred by Rule  608(b).  See United States v. Taylor, 900 F.2d 779, 781 (4th  Cir. 1990).  If offered for an alternate and legitimate reason,  "such as 'to justify a cooperation agreement [or] rebut allegations of bias,' the evidence falls outside Rule 608(b)'s narrow  confines."  Smith, 232 F.3d at 242 (quoting United States v.  Lochmondy, 890 F.2d 817, 821 (6th Cir. 1989)).


20
In the present case, we do not know for what purpose the  Government introduced Agent Perry's testimony.  As in  Smith, defense counsel failed to object to the testimony at  trial, thus preventing the prosecution from justifying or explaining its purpose for introducing the testimony.  Perhaps  the Government offered the evidence to rebut allegations of  bias;  perhaps not.  Under the plain error standard, with the  possibility that the Government introduced Agent Perry's  testimony to rebut allegations of bias, and the "ambiguity in  the case law" that results from the "hazy" line between  permissible and impermissible uses of "bolstering," we cannot  find that the district court's admission of Agent Perry's  testimony, if error at all, was obvious, or that it affected  substantial rights of the defendant.  See Smith, 232 F.3d at  243.


21
Even if it was error to introduce Agent Perry's testimony,  the ultimate outcome remains unchanged.  Under the plain  error standard, Sumlin must show that the introduction of  Agent Perry's testimony was error that "affected the outcome  of the district court proceedings." Olano, 507 U.S. at 734. In considering this standard, we are mindful that a court  should invoke the plain error exception "sparingly" to remedy  only "particularly egregious errors" that adversely affect the  "fairness, integrity or public reputation of judicial proceedings."  Smith, 232 F.3d at 243 (internal quotations omitted). With the great weight of the evidence against Sumlin before  us, in particular his own damaging admissions, we fail to see  how the introduction of Agent Perry's testimony could have  affected the outcome of Sumlin's trial.  Because Sumlin did  not suffer prejudice as a result of Agent Perry's testimony,  his challenge must fail.


22
Sumlin next argues that Agent Perry's testimony, even if admissible, should have been rejected under Federal Rule of Evidence 403. This rule states that,


23
[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading  the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


24
Fed. R. Evid. 403.  Sumlin argues that Agent Perry's testimony was unduly prejudicial and should therefore have been  excluded.  This challenge also need not detain us long because we again review for plain error.  When faced with this  question before, we noted that "[i]t is difficult to imagine a  Rule 403 challenge that could meet [the plain error] standard,  for Rule 403 contemplates the thoughtful consideration of the  trial court and leaves the admission of evidence to the sound  discretion of the trial judge."  United States v. Boney, 977  F.2d 624, 631 (D.C. Cir. 1992).  The facts of this case do not  stretch our imagination to the extremes contemplated by the  Boney court.  Instead, the facts here are quite similar to  those in Smith.  The Government's evidence tended to demonstrate that Goode had cooperated with the Government in  the past, and to rebut Sumlin's allegations that Goode was  biased.  Its probative value, then, was high.  The prejudice  complained of, however, is unclear.  Even without Agent  Perry's testimony, the evidence against Sumlin was sufficient  to support his convictions.  Therefore, based on our decision  in Smith, our recognized deference to a trial court's Rule 403  determinations, and our agreement with the Third Circuit  that "[i]f judicial self-restraint is ever desirable, it is when a  Rule 403 analysis of a trial court is reviewed by an appellate  tribunal," we find that the district court's admission of Perry's testimony was not plainly more prejudicial than probative.  Boney, 977 F.2d at 631 (quoting United States v. Long,  574 F.2d 761, 767 (3d Cir. 1978)).

C. Entrapment

25
Sumlin's final argument is that the evidence presented at  trial established entrapment as a matter of law.  We disagree.  A successful entrapment defense requires two elements:  "government inducement of the crime, and a lack of  predisposition on the part of the defendant to engage in the  criminal conduct."  Mathews v. United States, 485 U.S. 58, 63  (1988).  Thus, a defendant must first show that he was induced by the government to commit a crime that he would  not have otherwise committed.  See id. at 62-63.  A defendant will succeed at this step if he "comes forward with some  evidence of government" inducement.  United States v. Burkley, 591 F.2d 903, 913 (D.C. Cir. 1978) (emphasis added).  If  successful at this stage, then the burden shifts to the government "to disprove entrapment by demonstrating beyond a  reasonable doubt thatthe defendant was predisposed to  commit the crime."  United States v. Budd, 23 F.3d 442, 445  (D.C. Cir. 1994);  see also United States v. Neville, 82 F.3d  1101, 1107 (D.C. Cir. 1996).


26
Under this approach, "the jury, and not the judge, determines whether the defendant has carried the burden of  demonstrating that there is some evidence of inducement and,  if so, whether the government has met its burden of proving  predisposition."  Budd, 23 F.3d at 445;  see also United  States v. Whoie, 925 F.2d 1481, 1483 (D.C. Cir. 1991).  In this  case, the jury considered testimony on both inducement and  predisposition.  Given that the jury found Sumlin guilty, we  cannot know whether the jury based its verdict on a finding  that Sumlin was not induced, or, if he was, that he was  nonetheless predisposed to commit the crime.  We therefore  "focus[ ] on the predisposition issue" and uphold the jury's  verdict if, viewing the evidence in a light most favorable to  the Government, "a reasonable jury could have found that the  Government proved beyond a reasonable doubt that the defendant was predisposed to commit the crime."  Neville, 82  F.3d at 1107.


27
Recognizing that predisposition is "the principal element in  the defense of entrapment," United States v. Russell, 411  U.S. 423, 433 (1973), we focus "upon whether the defendant  was an 'unwary innocent' or, instead, an 'unwary criminal'  who readily availed himself of the opportunity to perpetrate  the crime."  Mathews, 485 U.S. at 63.  The Government must  therefore prove a "state of mind which readily responds to  the opportunity furnished by the officer or his agent to  commit the forbidden act."  Burkley, 591 F.2d at 916 (internal quotations omitted).  In evaluating a defendant's predisposition, we look to all of the events surrounding the ultimate commission of the crime.  See United States v. Kelly, 748  F.2d 691, 699 (D.C. Cir. 1984).


28
Viewing the evidence in a light most favorable to the  Government, we find sufficient evidence to support a jury's  finding that Sumlin was predisposed to commit the crimes for  which he was convicted.  For example, the jury considered  evidence that Sumlin had pled guilty to selling crack cocaine. The jury also considered evidence that showed Sumlin engaged in at least four, and as many as seven, prior drug  transactions with Clayton during 1998.  Moreover, Sumlin's  own admissions show "he had been dabbling a little in the  [drug trafficking] game," that "he was receiving about a  'ki[logram]' a week to a week and a-half," and that "he had a  connection through Indiana."  The jury also heard evidence  that Sumlin told Goode and Alston during the April 6 drug  sale that he could supply them with whatever amount of  drugs they needed.  During this same drug sale, Sumlin told  Goode and Alston that he had a "whole brick," or kilogram, of  additional cocaine to sell.  We find this evidence more than  sufficient for a reasonable jury to find beyond a reasonable  doubt that Sumlin was predisposed to sell cocaine.


29
Sumlin's assertions that he was "reluctant," unfamiliar with  drug jargon, and lacked overt signs of participation in the  drug trade fail to convince us that the jury's verdict was  unreasonable.  At best, Sumlin was an unwary criminal.  See  Mathews, 485 U.S. at 63.  Unwariness, however, does not  preclude predisposition.  We conclude, as did a reasonable  jury, that the Government proved beyond a reasonable doubt  that Sumlin was predisposed to commit the crimes for which  he was charged and convicted.

III. Conclusion

30
For the foregoing reasons, appellant's convictions in the  district court are affirmed.



Notes:


1
 Although Fed. R. Evid. 608(b) explicitly deals with "bolstering"  appellant expressly is not relying on that rule, on the theory that  the evidence in this case is not "extrinsic" within the meaning of the  rule.  Without regard to whether Sumlin's understanding of the  meaning of the rule is correct, we have analyzed the record in the  terms of relevance and prejudice asserted by him in his brief.


