United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2012 Decided June 22, 2012 

No. 09-3134 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

EDWINA BIGESBY, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:08-cr-00261-1) 

Neil H. Jaffee argued the cause for appellant. With him 

on the briefs was A.J. Kramer, Federal Public Defender. 

Eric C. Tung, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With him on the brief were 

Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese 

III and Courtney Denise Spivey, Assistant U.S. Attorneys. 

Before: BROWN and GRIFFITH, Circuit Judges, and 

GINSBURG, Senior Circuit Judge. 

 Opinion for the Court by Circuit Judge BROWN. 
2 

 BROWN, Circuit Judge: Edwina Bigesby has been 

sentenced to ten years’ imprisonment for various drug-related 

offenses. In this appeal, she contends her convictions should 

be vacated because the trial judge erroneously excluded 

evidence critical to her defense. Alternatively, she claims her 

sentence should be reduced under the Fair Sentencing Act. 

We reject both arguments, and affirm the judgment below. 

I 

 On June 26, 2008, Metropolitan Police Department 

(MPD) investigator Michael Iannacchione submitted an 

affidavit in support of a search warrant for 1709 Trinidad 

Avenue NE, Apartment 1, in the District of Columbia. 

According to the affidavit, a confidential informant (CI) had 

told Iannacchione that “an individual identified as Reginald 

Whitaker has been selling quantities of illegal controlled 

substances from within and outside of 1709 Trinidad Avenue, 

apartment #1, Northeast, Washington DC.” The CI claimed 

Whitaker would receive cell phone calls from customers, 

retrieve 14- to 28-gram packets of crack cocaine from either 

Apartment 1 or one of two cars parked near the apartment (a 

green truck and a black Honda), and sell the packets for cash. 

 The affidavit provided additional details supporting the 

CI’s story: Whitaker had been arrested in 2006 at the 

Trinidad Avenue apartment for distribution of crack cocaine, 

and had been arrested one block away in 2002 for possession 

with intent to distribute crack cocaine; a National 

Comprehensive Consumer Bureau report indicated Whitaker 

had been associated with the apartment from June 2007 

through February 2008; a second CI stated an individual had 

been selling illegal substances from the apartment; and 

surveillance confirmed that a black Honda and a green SUV 

were parked in front of the apartment. Based on that 
3 

information, Iannacchione declared “probable cause exists 

that secreted within 1709 Trinidad Avenue apartment #1 

Northeast, Washington, DC., there is a quantity of illegal 

controlled substances[,] namely cocaine.” 

 The affidavit mentioned Edwina Bigesby only twice. It 

stated that the black Honda parked in front the apartment was 

registered in her name; and the mailbox listed to the 

apartment had her name on it. 

 MPD officers executed the warrant on June 27, 2008. 

Inside the apartment, they found Bigesby and her three 

children, over 100 grams of crack cocaine—76 grams inside 

the rear of the television set, 12.3 grams in a woman’s tennis 

shoe, 14.7 grams in a woman’s purse, and 3.4 grams in a 

different purse—and 3.9 grams of marijuana in a plastic bag 

in the bedroom. They recovered 13 grams of heroin from the 

trunk of the black Honda parked outside. Whitaker was not in 

the apartment, but investigators did find some signs of his 

presence: a pair of men’s dress shoes in the bedroom closet, 

mail addressed to Whitaker in the dining room, and a pair of 

men’s athletic shoes in the trunk of the Honda. 

 

Two months after the search, the government indicted 

Bigesby on charges of possession with intent to distribute 50 

grams or more of crack cocaine, possession with intent to 

distribute heroin, and possession of marijuana. The 

government did not arrest or charge Whitaker. 

Bigesby’s trial began in July 2009. The prosecution’s 

theory was that Bigesby jointly possessed the drugs in the 

apartment and the car with Whitaker, the father of two of her 

children. They introduced testimony that one of the purses 

containing cocaine also contained Bigesby’s driver’s license 

and birth certificate; that Bigesby had said during the search 
4 

that she lived in the apartment and that the drugs were her 

own; and that Bigesby’s fingerprints were on two ceramic 

plates found next to various drug-related paraphernalia. 

For her defense, Bigesby sought to show that Whitaker 

alone possessed the drugs, but her attempts to do so were 

purportedly limited by several rulings. The trial judge denied 

her motion to compel the government to produce the CIs who 

provided the information in the warrant affidavit. The judge 

also refused to admit the warrant affidavit into evidence, 

refused to admit self-incriminating statements Whitaker had 

made to Bigesby’s investigator and attorney, and refused to 

admit evidence of Whitaker’s 2002 conviction for possession 

with intent to distribute crack. 

Without that evidence, Bigesby’s defense consisted 

solely of the testimony of Shawnta Evans. Evans testified 

that Bigesby and her children had been living with her 

(Evans) between April and June 2008, and that Bigesby had 

returned to the Trinidad Avenue apartment on the day of the 

search just to pick up some items. Evans also testified that 

Whitaker had keys to the Trinidad Avenue apartment, that she 

had seen him outside the apartment twice in June 2008, and 

that she had never seen Bigesby drive the black Honda in 

which the heroin was found. Apparently unconvinced, the 

jury returned a guilty verdict on all counts. 

On January 6, 2010, the trial judge sentenced Bigesby to 

ten years’ imprisonment for the crack cocaine conviction, the 

mandatory minimum under 21 U.S.C. § 841(b)(1)(A). The 

judge sentenced Bigesby to a concurrent ten-year term on the 

heroin conviction, and a concurrent one-year term on the 

marijuana conviction. He also imposed a five-year term of 

supervised release. 
5 

II 

 Bigesby contends the trial judge improperly excluded 

evidence relevant to her defense and the cumulative effect of 

those rulings was to deny her constitutional right to present a 

complete defense. She also claims she is entitled to be resentenced under the Fair Sentencing Act, which increased the 

amount of crack cocaine needed to trigger a ten-year 

mandatory minimum sentence. We address those arguments 

in turn. 

A 

Bigesby challenges four rulings: (1) the denial of her 

motion to compel the government to produce the CIs; (2) the 

exclusion of the warrant affidavit; (3) the exclusion of 

Whitaker’s self-incriminating statements; and (4) the 

exclusion of Whitaker’s 2002 crack cocaine conviction. In 

each instance, we find the trial judge did not abuse his 

discretion. See United States v. Warren, 42 F.3d 647, 654 

(D.C. Cir. 1994) (reviewing denial of motion to produce CI 

for abuse of discretion); United States v. Wilson, 160 F.3d 

732, 742 (D.C. Cir. 1998) (reviewing “decision[s] to deny 

admission of evidence for abuse of discretion”). 

1. Denial of motion to compel the government to 

produce the CIs. Before trial, Bigesby moved to compel the 

government to disclose and produce the two CIs who had 

provided information used in the warrant affidavit. Bigesby 

argued the CIs might corroborate her theory that Whitaker 

solely possessed the drugs found in the search. 

 

The trial judge denied the motion under the standard in 

United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004). The 

“informer’s privilege” permits the government to “withhold 
6 

from disclosure the identity of persons who furnish 

information of violations of law to officers charged with 

enforcement of that law,” Roviaro v. United States, 353 U.S. 

53, 59 (1957), and the privilege only gives way when the 

informer has “some sort of direct connection, either as a 

participant or an eyewitness, to the crime charged,” Gaston,

357 F.3d at 84. Here, the judge determined the privilege 

should hold because Bigesby committed her charged crimes 

on the day of the search, and the CIs “were neither 

participants nor eyewitnesses to th[ose] crimes.” 

Bigesby does not challenge the judge’s finding that the 

CIs were neither participants in nor eyewitnesses to the 

charged crimes. Instead, she contends the judge erred by 

applying Gaston’s “participant or eyewitness” test because 

the defendant in Gaston sought the identity of the CIs “to 

investigate whether the government’s reliance on such 

sources was reasonable,” 357 F.3d at 85, while she sought the 

identity of the CIs “to rebut the government’s joint possession 

theory,” Appellant’s Br. 20. 

Our precedents give no legal weight to that distinction. 

In Warren, the defendant sought the identity of a CI who had 

informed officers of drug sales at an apartment. Like 

Bigesby, the defendant “wished to argue that other occupants 

of the apartment on the day of the arrest were the resident 

drug sellers.” 42 F.3d at 655. We applied the same standard 

we would later apply in Gaston, and affirmed the district 

court’s denial of the defendant’s motion because the CI had 

neither participated in nor witnessed the charged crimes. Id.

at 654. We do so again here. 

2. Exclusion of the warrant affidavit. In her opening 

statement, Bigesby’s counsel claimed the warrant affidavit 

would “show . . . that there was a confidential source working 
7 

with Officer Iannacchione.” The government objected, and at 

the subsequent bench conference, argued that if the judge 

eventually admitted the affidavit into evidence, then he should 

also admit: (1) statements from the CIs that they had observed 

Bigesby selling drugs in the past; and (2) evidence that MPD 

officers had observed Bigesby engaging in suspicious drugrelated behavior in 2007. The trial judge agreed, warning 

Bigesby’s counsel that if she persisted in referencing the 

warrant affidavit, she would “open[] the door” to the 

government’s additional evidence. Bigesby’s counsel opted 

not to mention the warrant affidavit in the remainder of her 

opening statement. 

 The next day, during her cross-examination of Officer 

Iannacchione, Bigesby’s counsel once more attempted to 

reference statements in the warrant affidavit. When the 

prosecution objected, Bigesby’s counsel argued the affidavit 

was admissible hearsay. The trial judge repeated his warning 

that if he admitted the affidavit, he likely would have to admit 

the government’s additional evidence as well. After noting 

that both the affidavit and the government’s evidence were 

only marginally relevant, the judge chose to exclude both. 

 Bigesby now argues the trial judge abused his discretion 

by excluding the statements in the warrant affidavit. She 

claims the statements were non-hearsay adoptive admissions 

under Federal Rule of Evidence 801(d)(2)(b), and were 

relevant because they made it less probable that Bigesby 

possessed the drugs found in her apartment. The government 

concedes both points, see Appellee’s Br. 48, but submits the 

judge reasonably excluded the statements under Federal Rule 

of Evidence 403 because they were more prejudicial than 

probative. 
8 

 We agree. The affidavit’s probative value was limited 

because it proved, at most, that the government believed 

Whitaker was dealing drugs from the Trinidad Avenue 

apartment before it conducted the search. By contrast, the 

affidavit had a potentially prejudicial effect. If the judge had 

admitted the affidavit but excluded the government’s Rule 

404(b) evidence about Bigesby, it could have fostered the 

impression that, before conducting the search, the government 

believed Whitaker alone had been dealing drugs from the 

apartment. That “would have made it easier for the jury to lay 

the blame on [Whitaker] for the drug deal despite evidence 

presented at trial.” United States v. Lucas, 357 F.3d 599, 606 

(6th Cir. 2004). If, on the other hand, the judge had agreed to 

admit the government’s 404(b) evidence to counter the 

affidavit, it could have distracted the jury from the issue at 

hand. See Duran v. Town of Cicero, 653 F.3d 632, 645 (7th 

Cir. 2011) (affirming judge’s exclusion of 404(b) evidence 

because of the threat of “creating a sideshow and sending the 

trial off track”). Faced with those options, the judge did not 

abuse his discretion by excluding the affidavit. 

3. Exclusion of Whitaker’s self-incriminatory 

statements. At trial, Bigesby sought to introduce the 

testimony of her private investigator that Whitaker had 

admitted shortly before the trial began “that the cocaine and 

the heroin was his and that Ms. Bigesby knew nothing about 

it.” The government responded that it had given Whitaker 

“multiple opportunities” to meet, and that he had passed up 

each one. The government also claimed the circumstances 

surrounding the statement did not corroborate it, as required 

by Federal Rule of Evidence 804(b)(3). The judge sided with 

the government, stating he did not “believe the circumstances 

sufficiently indicate[d] trustworthiness.” 
9 

Under the version of Rule 804(b)(3) in effect during the 

trial, a statement is admissible as non-hearsay if “(1) the 

declarant was unavailable, (2) the statement was against the 

declarant’s interest, and (3) corroborating circumstances 

clearly indicate the trustworthiness of the statement.” United 

States v. Moore, 651 F.3d 30, 82 (D.C. Cir. 2011). Bigesby 

bore the burden of proving the statement met each 

requirement. Id.

The trial judge reasonably found Bigesby had not met her 

burden of proof on the third requirement. In United States v. 

Edelin, 996 F.2d 1238 (D.C. Cir. 1993), we addressed the 

exclusion of a statement from a third party (Bidgell) that the 

drugs at issue belonged only to him, not to the defendant 

(Edelin). We affirmed the district court’s ruling that there 

was a lack of corroborating circumstances because: 

First, Bidgell gave the statements to a defense 

investigator who he knew was working for 

Edelin. Bidgell, who is related to Edelin, may 

have had reason to help the defendant by 

fabricating a story. Second, the investigator 

obtained the statement the day of trial. Third, 

none of the other defense witnesses 

corroborated Bidgell’s statement that the drugs 

did not belong to Edelin. 

Id. at 1242. 

 Those considerations support the ruling below. Whitaker 

admitted his sole ownership of the drugs to Bigesby’s 

investigator and attorney, who he knew were in a position to 

help her, and he had reason to help her because he was the 

father of two of her children. And Whitaker provided the 

statement a month before trial—more than a year after 
10 

Bigesby’s arrest, and more than nine months after the 

government had started trying to meet with him. In light of 

the similarities between the circumstances here and in Edelin, 

we find the judge did not abuse his discretion by excluding 

Whitaker’s admission. 

 

4. Exclusion of Whitaker’s prior conviction. Before 

trial, the judge denied the government’s motion to introduce 

evidence under Federal Rule of Evidence 404(b) that officers 

had stopped and interrogated Bigesby in July 2007 after 

observing her engaging in what appeared to be a drug 

transaction. The judge found the proffered evidence to be “of 

little, if any relevance to the material issues in the case” 

because of “the significant time lapse, almost a full year, 

between the [stop] and the events underlying the case.” He 

ruled the evidence inadmissible because its “prejudicial 

[effect] . . . substantially outweigh[ed] its probative value.” 

Later, during trial, the judge denied Bigesby’s request 

under Rule 404(b) to introduce Whitaker’s 2002 conviction 

for possession with intent to distribute crack cocaine. The 

judge warned Bigesby that if he agreed to admit Whitaker’s 

prior conviction, he “would probably have to re-evaluate” his 

pre-trial exclusion of the evidence relating to Bigesby’s 2007 

stop and interrogation. He concluded that “the cleanest thing 

to do” was to simply deny Bigesby’s request. 

The judge’s ruling was within his discretion under Rule 

403. The six-year gap between Whitaker’s conviction and the 

discovery of drugs at the Trinidad Avenue apartment limited 

the conviction’s probative value. And just as with the warrant 

affidavit, Whitaker’s conviction had a potentially prejudicial 

effect whether the judge had chosen to admit the 

government’s 404(b) evidence to counter it, or had chosen to 

exclude that evidence. See supra II.A.2. 
11 

Because we find the trial judge did not abuse his 

discretion with any of the four challenged rulings, we need 

not reach Bigesby’s claim that the judge’s errors deprived her 

of her constitutional right to present a complete defense. 

 

B 

 As a fallback, Bigesby argues she is entitled to a reduced 

sentence under the Fair Sentencing Act (FSA), which 

increased the quantity of crack cocaine needed to trigger the 

ten-year mandatory minimum in 21 U.S.C. § 841(b)(1)(A). 

But Bigesby cannot benefit from the FSA because it was 

enacted eight months after her January 2010 sentencing, and it 

is not retroactive. 

The general savings statute provides that “[t]he repeal of 

any statute shall not have the effect to release or extinguish 

any penalty . . . incurred under such statute, unless the 

repealing Act shall so expressly provide.” 1 U.S.C. § 109. 

We agree with every circuit court to address the issue that 

there is simply “no evidence that Congress intended the 

[FSA] to apply to defendants who had been sentenced prior to 

the August 3, 2010 date of the Act’s enactment.” United 

States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (per 

curiam) (citing decisions from every circuit court except this 

one and the Federal Circuit). 

Bigesby claims we should deviate from our sister circuits, 

but her arguments are unpersuasive. She contends Congress 

expressed its preference for retroactivity when it gave the 

Sentencing Commission authority to promulgate emergency 

amendments to implement the FSA, but “Congress’s desire to 

have the FSA implemented quickly in no way suggests that it 

also intended to have the Act apply retroactively to 

defendants sentenced before it was passed.” United States v. 
12 

Bullard, 645 F.3d 237, 248 (4th Cir. 2011). She argues that 

not giving the FSA retroactive effect raises equal-protection 

concerns, but any such concerns are resolved by Congress’ 

rational basis for limiting the FSA’s retroactive effect—its 

“interest in the finality of sentences.” United States v. 

Johnson, 544 U.S. 295, 309 (2005). Finally, Bigesby asserts 

that “a new rule for the conduct of criminal prosecutions is to 

be applied retroactively,” Griffith v. Kentucky, 479 U.S. 314, 

328 (1987), but that Supreme Court pronouncement only 

applies to judicially created rules, not statutory amendments 

like the FSA, see id. at 322–23. 

III 

 Because the trial judge did not improperly exclude 

evidence relevant to Bigesby’s defense, and because Bigesby 

is not entitled to re-sentencing under the FSA, the sentence 

imposed below is 

Affirmed.