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United States v. Bursey

May 30, 1996




Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 94-CR-40066--J. Phil Gilbert, Chief Judge.

Before CUDAHY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.


DECIDED MAY 30, 1996

On December 6, 1994, a jury convicted Trance Bursey of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1). Bursey was sentenced to 36 months imprisonment. He appeals his conviction, claiming that the jury was improperly allowed to hear certain testimony and that, at a minimum, a limiting instruction should have been provided regarding this testimony. We affirm the conviction.


Around 4:00 p.m. on August 30, 1994, police officers James Temple and Lynn Trella were on patrol in their squad car in the 400 block of East Chestnut in Carbondale, Illinois, an area known for drug trafficking. As they emerged from an old alley in the area, they observed one man walking toward another man. Officer Temple testified that he immediately recognized the first man as Trance Bursey, whom he knew by name. Both officers testified that when this man looked up and realized that they were there watching, he threw what looked like a white piece of paper or a white object to the ground and took off. Officer Temple then pursued the man on foot, while Officer Trella went over and recovered the white object, which turned out to be seven individually-packaged rocks of crack cocaine wrapped up in white paper. Although Officer Temple was unable that day to find the man who threw down the white package, a warrant was issued for the arrest of Trance Bursey, based upon Temple's identification of him as the man who threw down the cocaine package.

The main issue at trial was Officer Temple's identification of Bursey. *fn1 Temple testified on direct examination that at the time of the encounter, he'd had over 20 previous contacts with Bursey, including custodial contacts. *fn2 When defense counsel objected to the government's question about what was meant by a "custodial contact," the district court responded as follows:

Okay. The Court's going to overrule the objection, but the Court's going to instruct the jury that the testimony that Officer Temple, I believe, is about to give about the custodial contacts with the defendant is being admitted for a limited purpose only to show his knowledge of the defendant and for purposes of identification and is not to be construed as a propensity by this defendant to have committed this crime or any other crimes . . . .

Temple then testified that the custodial contacts were when Bursey had been either briefly detained or arrested and that he had been personally involved in four arrests of Bursey. Temple emphasized his opportunity to view Bursey closely during these arrests. Temple also testified to various other personal contacts with Bursey during his police work, including times when Bursey was a victim.

Temple acknowledged on cross examination that he was 30 to 40 feet away when he first spotted the man with the white package and that he only observed his face for about 10 seconds. Officer Temple maintained, however, that he had known Bursey for four to five years and that there was no doubt in his mind that Trance Bursey was the man he observed throwing down the white package that day. Later in this cross examination, defense counsel posed the following question to Temple: "Would you consider [Trance Bursey] to be street smart." Temple responded affirmatively. Defense counsel acknowledged at oral argument that it was his theory, and that he argued to the jury, that someone who was "street smart" wouldn't just drop his drugs right in front of the cops, especially if he suspected he'd been recognized.

The government began its redirect by asking, "Officer Temple, upon what do you base your assessment that the defendant is street smart?". When Officer Temple started to testify about various police investigations of Bursey for criminal activities, defense counsel made a hearsay objection. The court determined, however, that the defense had "opened the door" and overruled the objection. Temple then testified that the police department had received information that Bursey was involved in selling drugs and that he was a member of a group called "the blunt squad," whose members were involved in drug distribution and some of whom were being prosecuted in federal court. Temple also stated that he had investigated a number of shooting cases in which Bursey was "involved" and that Bursey was a victim in at least one of these shootings. Finally, Temple testified that on one occasion when he stopped Bursey, Bursey identified himself as a member of the Black Gangster Disciples. Temple concluded by saying that all of these contacts combined led him to believe that Bursey was "street smart." Defense counsel did not offer any further objection during this testimony.

Bursey later testified that he was not the man Temple saw and that he had spent the entire day in the home of Quillia Gould. Ms. Gould testified that she saw Bursey at her home at 12:30 p.m. and again at 5:00 p.m., but she could not account for his whereabouts during the intervening hours. Bursey also testified that he had never sold crack cocaine and that there were other ...

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