232 F.3d 236 (D.C. Cir. 2000)
United States of America, Appelleev.Antonione Smith, a/k/a Abdul Mines, a/k/a York, Appellant
No. 00-3026
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2000Decided November 24, 2000

Appeal from the United States District Court for the District of Columbia, (No. 98cr00399-01)
Sandra G. Roland, Assistant Federal Public Defender,  argued the cause for appellant.  With her on the briefs was  A. J. Kramer, Federal Public Defender.  Neil H. Jaffee and  Tony W. Miles, Assistant Federal Public Defenders, entered  appearances.
Mary B. McCord, Assistant United States Attorney, ar- gued the cause for appellee.  With her on the brief were  Wilma A. Lewis, United States Attorney, John R. Fisher and  Roy W. McLeese, III, Assistant United States Attorneys.
Before:  Edwards, Chief Judge, Rogers and Garland,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
On November 3, 1999, following a  three-day trial, a federal jury found appellant Antonione  Smith guilty on one count of unlawful possession of a firearm  and ammunition by a convicted felon in violation of 18 U.S.C.  § 922(g)(1) (1994).  Smith was thereafter sentenced to 51  months in federal prison, where he now resides.  On appeal,  Smith identifies three alleged evidentiary errors, each of  which he argues merit reversal of the judgment below and  remand for a new trial.  Only one of the alleged errors,  however, requires extended treatment here.


2
Smith challenges the admission of government witness  Frank Haera's testimony that government informant Kevin  Perry, himself a witness at trial, had provided truthful infor- mation to the police in the past.  Here, Smith renews his  timely objection that the testimony was irrelevant under  Federal Rule of Evidence 402.  He also offers a new argu- ment that was not raised at trial, i.e., that the so-called  "bolstering" evidence was inadmissible under Federal Rule of  Evidence 608(b).  Rule 608(b) prohibits the use of extrinsic  evidence "for the purpose of attacking or supporting [a]  witness' credibility."  Fed. R. Evid. 608(b).  The Government  responds that the prosecution offered the "bolstering" testi- mony to rebut defense counsel's insinuation on cross- examination that informant Kevin Perry had been biased by  his plea agreement.  As a result, the Government argues that  Rule 608(b) does not apply.


3
We need not reach the substance of this disagreement.   The fact that Perry had testified truthfully in the past was  plainly relevant.  Because Smith did not raise the more  specific Rule 608(b) objection at trial, we must review admis- sion on that front for plain error.  This circuit has not yet  addressed whether, and to what extent, Rule 608(b) prohibits  admission of extrinsic evidence of specific instances of past  "truthful" cooperation offered by the government to rebut  allegations of an informant's bias;  and there is no consensus  among the circuits that have addressed the issue.  Thus, even  were we to find error, it would not be plain.


4
Smith's two remaining challenges fare no better.  Smith  argues that the trial court, despite defense counsel's failure to  lodge timely objections, should have barred sua sponte the  prosecution's references to Smith's aliases as well as state- ments implying that Smith was a violent and dangerous  criminal.  Allusions to Smith's aliases were not so gratuitous,  and implications that Smith was a violent criminal not so  transparent, as to merit a finding of plain error on either  count.  We therefore affirm the judgment of the District  Court.

I. Background
A.   The Investigation

5
The Bureau of Alcohol, Tobacco and Firearms ("ATF")  utilizes a special High Intensity Drug Trafficking Area  ("HIDTA") task force to investigate narcotics dealing, violent  crime, and drug-related homicides in the District of Columbia.   In 1996, HIDTA agents began a targeted investigation of the  Park Morton housing complex and surrounding area--a  known locus of drug-trafficking, violence, and a number of  unsolved murders.  Trial Transcript at 21-22 (Nov. 2, 1999)  [hereinafter Tr.].  The investigation employed observation  posts, undercover narcotics purchases, and the arrest and  recruitment of confidential informants to aid in locating and  arresting other perpetrators.  Tr. at 22-25.


6
In the midst of the ongoing investigation, officers observed  Perry selling crack cocaine.  Rather than face trial on distri-  bution charges, Perry, who is confined to a wheelchair, en- tered into a cooperation agreement on February 14, 1997.   Pursuant to his agreement, Perry entered a guilty plea to one  count of conspiracy to distribute and possess with intent to  distribute over 50 grams of crack cocaine.  Tr. at 59.  In  exchange for assistance, information, and truthful testimony,  HIDTA agents agreed to dismiss two charges then pending  against Perry in SuperiorCourt.  Tr. at 63-64.  The Govern- ment also agreed to file a substantial assistance motion  pursuant to U.S. Sentencing Guidelines Manual S 5K1.1  (1997), urging the District Court to waive the mandatory 10- year minimum sentence on the federal distribution charge.   Tr. at 63.  Though not explicitly part of the agreement,  agents also provided Perry with various amounts of money  for rent, bills, childcare, transportation, and moving expenses.   Tr. at 46-47, 104-07.

B.   The Transaction

7
According to Perry, Smith--whom he had known for 10  years--repeatedly approached him in the summer of 1997  about purchasing an "AK-47."  Tr. at 66-67.  Though Smith  was not himself a target of the investigation, HIDTA agents  instructed Perry to go ahead with the transaction.  Tr. at 67.   Perry testified that he and Smith agreed on a price of $900  for the rifle, and because Perry claimed to be buying the  weapon on behalf of a friend, Smith agreed to give Perry a  small finder's fee.  Tr. at 67.  The actual "deal" took place in  Perry's apartment on July 9, 1997.  Agent Frank Haera of  the HIDTA task force oversaw the sting operation.  Tr. at  27-29.


8
On the evening of July 9, and before Smith was to arrive at  Perry's apartment, undercover officer Clarence Brooks ex- changed Perry's wheelchair for one equipped with a video  camera to record the transaction.  Tr. at 114.  He also fitted  Perry with a radio transmitter and provided him a cell phone  and money to purchase the rifle.  Tr. 30-31.  On his way out,  Officer Brooks passed a man entering the apartment whom  he recognized as Smith, also known to him as "York."  Tr. at   114.  Though no officer was present during the transaction,  Agent Haera surveyed the events via radio transmitter from  a block away.  Tr. at 30.


9
Smith did not have the gun with him when arriving at  Perry's apartment.  At trial, Perry testified that he and  Smith initially discussed how Smith might inconspicuously  transport the weapon from down the street to the apartment.   Tr. at 70-71.  Smith left once and returned without the gun,  at which time they again caucused over means of moving the  merchandise without attracting attention.  Tr. at 71-72.   Smith left a second time and eventually returned with Daniel  Hamilton, or "Cat Face," who carried a large, torn cardboard  box into the apartment.  Tr. at 72.  Hamilton put down the  box, which contained a loaded Norinco SKS rifle, loose ammu- nition, and a black skull cap.  Tr. at 34-36, 116-18.  Perry  and Smith moved the box under the couch, and Perry gave  Smith the money.  Smith returned a few dollars to Perry for  arranging the deal, before leaving the apartment with Hamil- ton.  Tr. at 74.  Officer Brooks then returned to the apart- ment, retrieved the box and its contents, and exchanged  wheelchairs.  Tr. 116-17.

C.   Proceedings Below

10
On November 17, 1998, a federal grand jury indicted both  Smith and Hamilton on one count of unlawful transfer and  possession of a semi-automatic assault weapon, in violation of  18 U.S.C. § 922(v)(1) (1994).  Because Smith already had a  previous felony conviction, he was also indicted on one count  of unlawful possession of a firearm by a person convicted of a  crime punishable by imprisonment for a term exceeding one  year, in violation of 18 U.S.C. § 922(g)(1).  See Indictment,  United States v. Smith, Crim. No. 98-399-01-JR (D.D.C.  Nov. 17, 1998), reprinted in Appellant's Appendix ("App.") at  10.  The District Court dismissed the indictment on the first  count as to each defendant, leaving only the second count as  to Smith.


11
The trial involving Smith's prosecution commenced on No- vember 1, 1999.  After one day of testimony and argument,  the jury returned a guilty verdict.  At trial, the Government  called four witnesses--Agent Haera, Officer Brooks, Kevin  Perry, and Jeffrey Descheemaeker, an ATF firearms specialist to testify about the rifle's capabilities.  During direct  examination of Perry, the prosecutor played the videotape of  the transaction, though the sound was inaudible.  Tr. at 85.   Thus, Perry's testimony was the only evidence presented  regarding the content of his discussions with Smith and  Hamilton.  The defense rested without calling witnesses.


12
On February 28, 2000, the trial judge sentenced Smith to  51 months in federal prison, followed by three years' super- vised release.  See Judgment, Smith, Crim. No. 98-299-01- JR (D.D.C. Feb. 28, 2000), reprinted in App. at 13.  Smith  now appeals, challenging three alleged evidentiary errors.   He seeks reversal of the District Court's judgment and  remand for a new trial.

II. Analysis
A.   The So-called "Bolstering" Evidence

13
Smith argues that the District Court improperly admitted  "bolstering" testimony that Perry, himself a witness at trial,  had provided truthful information to the task force in the  past.  Smith points to the following exchange on re-direct  examination between the prosecutor and government witness  Agent Haera:


14
Q: Mr. Miles asked you some questions about Mr. Perry's cooperation and the information he's given you. Do you remember those questions?


15
A: Yes.


16
Q: Is it true that Perry had given you information that has led to the capture of other criminals?


17
Mr. Miles:  Objection, Your Honor.


18
The Court:  Sustained.

By Ms. Covell:

19
Q: As a result of Mr. Perry's cooperation, have you been able to arrest other criminals?


20
Mr. Miles:  Objection.


21
The Court:  Sustained.  It's leading.

By Ms. Covell:

22
Q: What happened--well, let me rephrase this.  With the information that Mr. Perry gave you, what did you do?


23
Mr. Miles:  Objection to relevance.


24
The Court:  I'll overrule that objection.


25
The Witness:  Repeat your question.


26
Ms. Covell:  Sure.

By Ms. Covell:

27
Q: Mr. Perry gave you certain information about indi-viduals in the Park Morton complex;  is that right?


28
A: That's true.


29
Q: And what did you do with that information?


30
A: The information that Mr. Perry gave me personally, I did a lot of different things with it.  Some of the information was used to obtain search warrants.  Some of the information was used to begin investigations on other people in that area that were committing crimes such as drug dealing and firearms possession.  And some of the information was used to inform the attorneys of how he could help us in these investigations by way of testimony in the grand jury and at trials.


31
Q:  In any of those search warrants that were based on information given you by Perry, did you uncover contra-band?


32
A: Yes.


33
Q: And any of those investigations of other individuals that you started as a result of Mr. Perry's information, did any of those investigations lead to arrest?

A: Yes

34
Q: And were the arrests of those individuals corroborated by any tangible evidence?


35
Mr. Miles:  Objection, Your Honor.


36
The Court:  Sustained.

By Ms. Covell:

37
Q: Agent Haera, based on what you know about the information Mr. Perry gave you, and the search warrants you've gotten and the arrests, do you believe that the information Mr. Perry gave you is truthful?


38
Mr. Miles:  Objection, Your Honor.


39
The Court:  Sustained.


40
Ms. Covell:  That's all I have, Your Honor.


41
Tr. at 52-55 (emphasis added).  This exchange came on the  heels of a cross-examination, during which defense counsel  elicited from Agent Haera information regarding Perry's  possible bias, including his plea agreement and money paid  Perry by the ATF.  Tr. at 42-48.  Smith here renews his  relevance objection and also raises for the first time the  inadmissibility of the testimony under Federal Rule of Evi- dence 608(b).


42
Because defense counsel lodged an objection on the basis of  relevance in a timely fashion, we review admission of the cited  testimony for abuse of discretion.  See United States v.  Ramsey, 165 F.3d 980, 983 n.3 (D.C. Cir.), cert. denied, 120  S. Ct. 223 (1999).  Evidence is relevant if it has "any tenden- cy to make the existence of any fact that is of consequence to  the determination of the action more probable or less proba- ble than it would be without the evidence."  Fed. R. Evid. 401.


43
That Perry 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.  Further- more, Federal Rule of Evidence 404(b), which prohibits the  admission of evidence regarding past acts "to prove the  character of a person to show action in conformity therewith,"  would be largely superfluous if the rules on "relevance" were  construed to proscribe "propensity" testimony.  Similarly,  were we to agree with Smith, Rule 608(b)'s prohibition on the   use of extrinsic evidence of specific instances of a witness'  truthful or untruthful conduct "for the purposes of attacking  or supporting the witness' credibility" would itself be redun- dant.  The concerns giving rise to Rules 404(b) and 608(b) are  not relevance concerns.  To the contrary, both "propensity"  rules and the rule restricting the admission of extrinsic  credibility evidence embody specific concerns that, although  relevant, evidence of prior acts will either unduly prejudice  and overpersuade the jury, see Old Chief v. United States,  519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681  F.2d 61, 63 (1st Cir. 1982)), or waste time by sanctioning  countless distinct credibility mini-trials within the trial prop- er, see Fed. R. Evid. 405 advisory committee's note;  Fed. R.  Evid. 608(b) advisory committee's note.  In short, we reject  Smith's claim that the disputed testimony was irrelevant and  turn to his 608(b) challenge.


44
It should first be noted that certain of the alleged "bolster- ing" testimony--concerning whether the information that  Perry had given to law enforcement officers in the past had  been corroborated and whether Perry had been truthful in  past dealings--was objected to on unspecified grounds and  the objections were sustained.  Nonetheless, Agent Haera  was allowed to testify that he had received and used informa- tion from Perry to facilitate investigations, uncover contra- band, and secure arrests.  It is this latter testimony that  Smith claims was "bolstering" and erroneously admitted un- der Rule 608(b).  In light of our ruling in this case, we need  not address the accuracy of appellant's characterization of the  disputed testimony as "bolstering."


45
Because Smith failed to raise a timely Rule 608(b) objec- tion, we review admission of the testimony for plain error.   See Fed. R. Crim. P. 52(b);  see also United States v. Spriggs,  102 F.3d 1245, 1257 (D.C. Cir. 1996).  The term "plain" as  used in Federal Rule of Criminal Procedure 52(b) "is synony- mous with 'clear' or, equivalently, 'obvious.' "  United States  v. Olano, 507 U.S. 725, 734 (1993).  "At a minimum, a court of  appeals cannot correct an error pursuant to Rule 52(b) unless  the error is clear under current law."  Id.


46
As noted above, this circuit has not yet addressed whether,  and to what extent, Rule 608(b) prohibits admission of extrin- sic evidence of specific instances of past "truthful" coopera- tion offered by the government to rebut allegations of an  informant's bias.  Although this fact, alone, is not dispositive  of the plain error issue, it is important when we consider that  Rule 608(b) itself admits of no simple answer to the question  at hand and, in addition, our sister circuits have been unable  to agree on the point at which impermissible "bolstering"  ends and permissible use of past cooperation to rebut bias  begins.  Compare United States v. Taylor, 900 F.2d 779, 781  (4th Cir. 1990) ("[I]t was error for the district court to admit  extrinsic evidence that the informer, Phillips, had provided  reliable information and testimony that resulted in several  convictions, in order to bolster Philips' credibility."), and  United States v. Murray, 103 F.3d 310, 321-22 (3d Cir. 1997)  (discussing Taylor), with United States v. Lochmondy, 890  F.2d 817, 821 (6th Cir. 1989) ("Several circuits have held that  evidence of cooperation on other matters is admissible to  justify a cooperation agreement and to rebut allegations of  bias." (citing United States v. Sanchez, 790 F.2d 1561 (11th  Cir. 1986);  United States v. Fusco, 748 F.2d 996 (5th Cir.  1984);  United States v. Martinez, 775 F.2d 31 (2d Cir.  1985))), and United States v. Penny, 60 F.3d 1257, 1264 (7th  Cir. 1995) (quoting Lochmondy).


47
Rule 608(b) states that,


48
[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


49
truthfulness or untruthfulness, be inquired into on cross examination 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


50
being cross-examined has testified.


51
Fed. R. Evid. 608(b) (emphasis added).  As both the plain  language of the rule and the cases cited above suggest, the  threshold question under Rule 608(b) is:  For what purpose  has the prosecution offered the extrinsic evidence?  If offered  solely "in order to bolster [the informant's] credibility," Tay- lor, 900 F.2d at 781, then Rule 608(b) bars admission lest one  of the exceptions applies.  But, if offered for a different and  legitimate reason, such as "to justify a cooperation agreement  [or] rebut allegations of bias," Lochmondy, 890 F.2d at 821,  the evidence falls outside Rule 608(b)'s narrow confines.


52
Government informants present a uniquely difficult case for  courts determining whether the prosecution has offered the  so-called "bolstering" evidence for a permissible or an imper- missible purpose.  Routinely, defense counsel cross-examines  government witnesses about an informant's bias--whether it  be a plea agreement, a financial arrangement, or both.  On  re-direct, the prosecution may want to introduce specific  instances of fruitful cooperation under the plea agreement to  show that the informant has already cooperated substantially  with the police, thereby reducing the marginal temptation to  lie in the present circumstance.  The line between this per- missible use and impermissible "bolstering" is indeed a hazy  one.  In Fusco, the Fifth Circuit held extrinsic evidence of  past cooperation admissible to rebut implications that the  informant had received $45,000 from the DEA solely for his  help in that case:  "Because the government was trying to  convince the jury that [the informant] was not biased, it was  not 'bolstering' [the informant] in a prohibited way, and [the  informant's] prior cooperation was not 'extrinsic,' as those  terms are used in Federal Rule of Evidence 608.  Bias, as  opposed to general veracity, is not a collateral issue."  748  F.2d at 998.  Likewise, in United States v. Lindemann, 85  F.3d 1232 (7th Cir. 1996), the Seventh Circuit found admissi- ble similar evidence offered in response to suggestions that  the informant "would not have gotten a plea deal if he hadn't  come up with the name of a 'big fish' like Lindemann."  Id. at  1242. The court held that


53
[t]he evidence specifically rebutted the allegation that [the informant] was biased out of self-interest in Lindemann's case:  Burns' successful participation in numerous other cases meant that at the time he was negotiating over his plea deal, he had lots of information to use as bargaining chips.  That fact was relevant under the standards of [Federal Rule of Evidence] 402 because it made less probable the assertion that Burns was lying in Lindemann's case out of self-interest.


54
Id. at 1243.


55
Because defense counsel in the instant case failed to raise  the 608(b) objection below, the prosecution never had an  opportunity to explain why it offered the alleged "bolstering"  evidence.  Defense counsel had used its cross-examination of  Agent Haera to expose the terms of Perry's plea agreement,  Tr. at 45-46, to suggest that Perry need only "accuse"  suspects to benefit under that agreement, Tr. 44-45, and to  show the tremendous financial incentives on Perry to provide  even false information, Tr. at 46-48.  Perhaps, as in Linde- mann, the prosecution offered the testimony to demonstrate  the diminished marginal value to Perry of his participation in  the instant case;  perhaps as in Fusco, it was offered to  undermine any insinuation that Perry had received funds for  his participation in this case alone;  or finally, perhaps the  prosecution wanted to counter defense counsel's specific insin- uation that Perry would benefit merely by accusing people.   We simply do not know.  Given these possibilities, the ambi- guity in the case law, and the context of the present testimo- ny, we cannot say that admission of the evidence constituted  plain error.


56
We conclude by emphasizing that, to satisfy the plain error  standard, Smith must show that the alleged error "affect[ed]  substantial rights," that is, "affected the outcome of the  district court proceedings."  Olano, 507 U.S. at 734 (holding  that the "substantial rights" inquiry of Federal Rule of Crimi- nal Procedure 52(b) mirrors Rule 52(a)'s "harmless error"  inquiry, except that the burden in the former falls on the  defendant to show prejudice).  Moreover, " '[t]he plain error  exception to the contemporaneous objection requirement  should be used sparingly, only for "particularly egregious   errors" that "seriously affect the fairness, integrity or public  reputation of judicial proceedings." ' "  Spriggs, 102 F.3d at  1257 (quoting United States v. Copelin, 996 F.2d 379, 383  (D.C. Cir. 1993)).  Here, the minimal damage arguably  wrought by the contested testimony stands in stark contrast  to the overwhelming weight of evidence against Smith.  Fur- thermore, as noted above, it appears that the most damaging  of the alleged "bolstering" testimony was excluded pursuant  to objections that were raised by Smith's attorney.  There  was no plain error.

B.   The Remaining Challenges

57
We pause only briefly over Smith's two remaining eviden- tiary challenges.  As with the Rule 608(b) issue, defense  counsel failed to raise timely objections at trial.  We thus  review admission for plain error.


58
Smith argues first that the District Court improperly al- lowed the prosecution to refer to and to elicit answers regard- ing Smith's aliases.  The transcript does not reveal, however,  whether the prosecution offered the aliases for arguably  irrelevant and prejudicial purposes or primarily as a means of  identifying Smith--Perry had apparently known Smith as  "York."  Tr. at 66.  Furthermore, Smith has not shown how  the limited allusions prejudiced his defense.


59
Smith's second remaining argument--that the District  Court erred by admitting evidence implying that Smith had  been a target of the Park Morton investigation and implying  that Smith had threatened Perry with violence--fares no  better.  Perry himself testified that "[Smith] wasn't the tar- get of the investigation, but, however, he approached me and  asked me was I interested in buying an AK-47."  Tr. at 67.   As to possible implications that Perry had been moved on  various occasions to protect him from Smith, the District  Court addressed any potential problem on its own initiative  by requiring the prosecutor to ask for clarification from its  witness:


60
(Bench conference on the record)


61
The Court:  This is--in NFL language, this is my time out.  There's been a lot of sort of hinting around the edges of the danger this guy was in, and my concern, of course, is that the implication of all of it is that this defendant is the one responsible for the danger.  Now both sides have--both sides have toyed with this.  I can't unscramble this egg.  But there haven't been any objections until now, but I don't want this danger thing to be played up.


62
Ms. Covell:  I understand, Your Honor.  My view is that Mr. Miles opened the door by asking him about the payments for the move.  I was going to ask why and make it clear--I can ask a follow-up question was it because of the defendant.  He knows it wasn't because of the defendant.


63
The Court:  That would be very helpful.


64
Ms. Covell:  I can do that.


65
Mr. Miles:  Okay.


66
(End of bench conference)

By Ms. Covell:

67
Q. What were the reasons that you moved Kevin Perry?


68
A. I felt that his life was in danger on several occasions.


69
That's why I moved Mr. Perry.


70
Q. Were any of those occasions that you moved him a result of any sort of threat or danger that came from the defendant?


71
Let me rephrase that:  You never learned that the defendant had ever threatened Mr. Perry in any way?


72
A. No.


73
Tr. at 48-49.  Any residual problems lingering after the  clarification certainly do not constitute plain error.

III. Conclusion

74
Because the District Court's alleged evidentiary failings do  not rise to the level of plain error, Smith's conviction is


75
Affirmed.

