181 F.3d 147 (D.C. Cir. 1999)
United States of America, Appelleev.Horace L. Davis, Appellant
No. 93-3059
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 13, 1999

On Appellant's Petition for Rehearing
A.J. Kramer, Federal Public Defender, and Neil H. Jaffe,  Assistant Federal Public Defender, were on the supplemental  brief of appellant.
Wilma A. Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys, were on the supplemental brief of appellee.
Before:  Randolph, Rogers, and Tatel, Circuit Judges.
Opinion for the Court filed Per Curiam.

Per Curiam:

1
In United States v. Crowder, 141 F.3d 1202  (D.C. Cir. 1998) (Crowder II), the court, sitting en banc,  affirmed Davis's conviction.1  Davis now seeks rehearing on  three grounds.  The en banc court referred Davis's petition  to the panel.  For the following reasons, we deny the petition.


2
Davis first contends that Officer Farmer's testimony at  trial and his testimony at the suppression hearing were in  conflict and that the district court therefore should have  permitted Davis to introduce the suppression hearing transcript into evidence.


3
At the suppression hearing, when asked where he filled out  the buy report, Farmer stated that he filled it out at the  police station:


4
Defense counsel:  "That's something [the buy report] you filled out back at the station, right?"Farmer:  "Yes."Defense counsel never asked Farmer whether he filled out  every section of the buy report at the station.  Later at trial,  Farmer gave more specific answers, testifying that he filled  out most of the report at the station but filled out the clothing  description at the scene before the police arrested Davis. Also at trial, Farmer explained on redirect that he filled out  the clothing description on the scene so that "if the arrest  team asked me again what was the clothing description, I  have it written down so I can remember it better and I  wouldn't make a mistake in the clothing description."


5
Davis stresses Farmer's failure to state at the suppression  hearing where and when he filled out the clothing description  portion of the buy report.  There are three answers to this  line of argument.  First, it may not have been entirely clear  to the district court that Farmer's response at the suppression hearing--in light of the broad question defense counsel  asked him--gave rise to a testimonial inconsistency.  See  United States v. Hale, 422 U.S. 171, 176 (1975);  United States v. Strother, 49 F.3d 869, 874 (2d Cir. 1995).  Second, in  view of the facts that defense counsel read Farmer's suppression hearing testimony to him during cross-examination, and  that Farmer did not deny giving that testimony, the district  court may have believed that admitting the transcript would  merely have been cumulative.  See Rule 403, Fed. R. Evid. Third, even assuming that Farmer's suppression hearing  response and trial testimony conflicted and that the district  court abused its discretion by not permitting Davis to introduce the transcript into evidence, any such error was harmless.  As we have said, during the cross-examination of  Farmer the jury heard word-for-word what he had said at the  suppression hearing.  See Appellant's Appendix 192.  See  United States v. Roger, 465 F.2d 996, 997 (5th Cir. 1972).Given the freedom defense counsel enjoyed to use the suppression hearing transcript, the district court's refusal to  admit the transcript into evidence in no way prejudiced Davis  or impaired his defense.  See United States v. Bogle, 114 F.3d  1271, 1275-76 (D.C. Cir. 1997);  Williams v. United States,  403 F.2d 176, 179 (D.C. Cir. 1968).


6
As to the second ground for rehearing, the district court  also did not abuse its discretion in admitting Officer Farmer's  redacted "buy" report.  Even if the buy report was inadmissible as a public record under Fed. R. Evid. 803(8)(B), it was  admissible under Fed. R. Evid. 801(d)(1)(C) as a statement of  identification made after perceiving Davis.  The facts here  are similar to those in United States v. Coleman, 631 F.2d  908, 914 (D.C. Cir. 1980), and United States v. Clarke, 24 F.3d  257, 267 (D.C. Cir. 1994), which affirmed the admission of  similar police notes and tapes that contained witness identifications of the defendants under this rule.  (Even though the  district court did not admit the buy report under Fed. R.  Evid. 801(d)(1)(C), this court can affirm on that ground.  See  United States v. Jacoby, 955 F.2d 1527, 1535 (11th Cir. 1992);United States v. Walsh, 928 F.2d 7, 10 n.10 (1st Cir. 1991).)


7
In challenging the buy report's admissibility, Davis relies  on United States v. Oates, 560 F.2d 45, 83-84 (2d Cir. 1977),  which holds that Fed. R. Evid. 803(8)(B) bars the admission of  records like the buy report.  Oates is of questionable precedential value--other circuits disagree with its sweeping language, see United States v. Hayes, 861 F.2d 1225, 1229-30  (10th Cir. 1988);  United States v. Picciandra, 788 F.2d 39, 44  (1st Cir. 1986);  United States v. Metzger, 778 F.2d 1195,  1201-02 (6th Cir. 1985)--and, in any event, the decision is  inapposite.  The court's holding in Oates derived from an  express concern about preserving the defendant's right to  confront his accusers.  See Oates, 560 F.2d at 83-84;  Hayes,  861 F.2d at 1230.  That is not an issue here.  Farmer  testified at trial and was subject to cross-examination.  Another case relied on by Davis, United States v. Smith, 521  F.2d 957, 965-66 n.20 (D.C. Cir. 1975), is also otiose.  Like  Oates, Smith concerned Confrontation Clause issues--which,  again, are not at issue here because defense counsel cross examined Farmer.  See Coleman, 631 F.2d at 914 ("[t]he  concern in Smith that the government might submit its entire  case by means of unchallenged documentary evidence is not  present here").


8
Even if the district court erred in admitting the redacted  buy report and permitting the government to refer to it  during closing, any such error was harmless and did not  prejudice Davis.  See Clarke, 24 F.3d at 267.  The evidence  against Davis was strong.  Officer Farmer testified that he  was "without a doubt" that Davis was the man from whom he  bought a rock of crack cocaine on February 27, 1991.  Other  officers positively identified Davis as one of the men arrested  one to two minutes after Officer Farmer's "lookout."  And  Officer Vines testified to Farmer's identification of Davis at  the scene.  See United States v. Dyke, 901 F.2d 285, 287 (2d  Cir. 1990).  Because the clothing description in the buy  report simply mirrors the direct identification of Davis, any  erroneous admission of such cumulative evidence is therefore  harmless.  See United States v. Lampkin, 159 F.3d 607, 61415 (D.C. Cir. 1998);  Clarke, 24 F.3d at 267.


9
The third issue Davis raises relates to the district court's  determination to admit evidence of Davis's bad acts.  See  Fed. R. Evid. 403.  It is clear that the district court took its  responsibility under Rule 403 seriously.  The district court  explicitly "weigh[ed]" and analyzed the probative value of admitting evidence of Davis's prior bad acts.  And the district  court took account of and sought to limit any potential  prejudice to Davis by, among other things, excluding mention  of the prior bad acts until the end of the government's case in  chief and barring reference to them in the government's  opening and closing statements.


10
Whether the district court included in the Rule 403 balancing Davis's proposed stipulation is not clear.  On the one  hand, the district court stated that it would follow United  States v. Hudson, 884 F.2d 1016 (7th Cir. 1989), which  adopted a per se rule making a defendant's proposed stipulation irrelevant to the 403 balancing test in specific intent  cases.  On the other hand, the district court assessed the  probative value of admitting the evidence and "weigh[ed]" it,  presumably against any potential prejudicial effect (what else  would be on the other side of the scale?);  the district court  mentioned the proposed stipulation during this on-the-record  Rule 403 balancing;  and the district court stated that the  proposed stipulation "should not control" the balancing, implying that, in contrast to Hudson, the court found the  stipulation relevant to the 403 determination.  Thus the district court may have considered on the record the stipulation  during its Rule 403 balancing, but as we have said, this is not  certain.


11
At all events, if the district court failed to weigh the  proposed stipulation in the balance, a remand would nevertheless be unwarranted.  The factors germane to the Rule 403  determination are readily apparent and an on-the-record consideration of the proposed stipulation would not have changed  the district court's ruling.  See United States v. Graham, 83  F.3d 1466, 1473-74 (D.C. Cir. 1996);  United States v. Manner, 887 F.2d 317, 322-23 (D.C. Cir. 1989).


12
In Old Chief v. United States, the Supreme Court reiterated that as a general rule, district courts may--indeed  should--permit the government to introduce relevant evidence of bad acts to prove elements of guilt (excluding felony  status) and to establish all the circumstances surrounding the  offense.  See 519 U.S. 172, 186-89, 191-92 (1997).  Here, the government sought to use the evidence to prove intent and  knowledge elements.  On the other hand, we determined in  Crowder II that Davis's proposed stipulation was "of uncertain and doubtful significance."  141 F.3d at 1208.  "It mentioned only some hypothetical drug dealer, some 'person.'Yet the prosecution's evidence of Davis's prior crack cocaine  sales--sales close in time and place to those charged in the  indictment--was not meant to show that someone had intent  and knowledge.  The evidence was introduced to prove that  Davis had the intent to distribute the crack and that Davis  knew what he was possessing.  Davis's proposed stipulation  could not possibly have substituted for such proof.  It did not  even mention him by name."  Id.  At the end of the Crowder  II opinion, in the discussion of Rule 403, we added the  following:  "Here the proposed stipulations were ambiguous,  conditional and tentative.  Neither mentioned the defendant  directly.  At no point in their trials did either defendant  propose a jury instruction requiring the jury to find the  conceded element of intent....  The judges who presided at  their trials could not possibly have anticipated the model jury  instruction that later developed ... and their failure to do so  was neither 'plain' nor 'error.' "  Id. at 1210.  This last point  is particularly telling.  Davis's proposed stipulation needed to  be backed up by a jury instruction.  Without one, with just  the naked and ambiguous stipulation Davis tendered, the  district court's assessment under Rule 403 could not possibly  have been affected.  We reverse a district court's decision to  admit evidence under Rule 403 only for a grave abuse of  discretion.  See United States v. Neville, 82 F.3d 1101, 1107  (D.C. Cir. 1996).  Nothing of the sort occurred here.


13
The petition for rehearing is denied.


14
So ordered.



Notes:


1
 Because Crowder II recounts the facts of this case, we do not  repeat them here.


