United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge.
November 17, 2017, Defendant John David Barber (“Mr.
Barber”), an employee working at Fort George G. Meade
(“Fort Meade”), received a citation for using a
handheld cellular device while operating his motor vehicle.
On June 6, 2018, this Court held a bench trial, where Mr.
Barber represented himself. For the reasons set forth below,
this Court finds Mr. Barber not guilty.
following factual summary is derived from the recorded trial
testimony. The alleged traffic violation took place at the W1
parking lot (“W1 Lot”), located within Fort
Meade. The W1 Lot is a paved parking lot for Fort Meade
employees. It is a relatively small parking lot with certain
driving lanes that are one-way and certain driving lanes that
two-way. At the end of the lanes, there are either stop signs
or painted stop lines on the cement. On November 17, 2017, at
approximately 9:30 a.m., Officer Jose Cajigas-Flores (ID
#1492) observed a 2004 black Jeep Grand Cherokee in motion
and approaching a stop line in one of the W1 Lot's single
lanes. According to Officer Cajigas-Flores, the Jeep was
positioned immediately in front of him, and he observed the
driver of the vehicle, Mr. Barber both: (1) talking on his
handheld phone; and (2) subsequently failing to fully stop at
the stop line prior to making a left-hand turn in the W1 Lot.
Approximately “fifty feet” behind the Jeep,
Officer Cajigas-Flores observed Mr. Barber through the
Jeep's rear window prior to Mr. Barber making the
left-hand turn, and through its driver-side window as the
left-hand turn progressed. Mr. Cajigas-Flores testified that,
through both windows, he observed Mr. Barber holding his
handheld phone to his ear.
witnessing Mr. Barber “run” the stop sign,
Officer Cajigas-Flores initiated a traffic stop. Officer
Cajigas-Flores testified that, after stopping the Jeep, Mr.
Barber placed the cell in a dashboard phone mount. Further,
Office Cajigas-Flores testified that, upon approaching the
vehicle's driver-side window, he observed Mr. Barber
continuing his cell phone conversation, and that he knew the
call remained ongoing, because “he watched the phone
and watched the minutes go by.” Officer Cajigas-Flores
subsequently issued Mr. Barber a citation for using a
handheld device while his vehicle was in
contradicting Officer Cajigas-Flores's testimony, Mr.
Barber testified that, as soon as he started his Jeep to
drive to work, he placed the phone in his dashboard phone
mount. Mr. Barber contends the phone never left the mount,
and that he regularly leaves the phone in the mount, because
he cannot take the phone into the Agency. Mr. Barber also
testified that he was aware of Officer Cajigas-Flores's
presence behind him in the W1 Lot and that he completely
stopped at the stop line, because it would defeat
“common sense to run a stop line when an officer is
directly right behind me.” Furthermore, Mr. Barber
pointed out that the windows on his Jeep are tinted with a
factory black/smoke tint. Mr. Barber thus disputed Officer
Cajigas-Flores's ability to observe him, from a distance
of approximately fifty feet, through both the rear window and
the driver-side window. Finally, as a result of Mr.
Barber's commercial driving experience, he testified
that, hypothetically, if he were going to use a handheld
device while driving, it would be in his right hand, both
because he is right-hand dominant and because he always
drives with his left hand on the steering wheel. Notably, on
cross-examination, Officer Cajigas-Flores could neither
recall: (1) whether the Jeep's windows were tinted; or
(2) in which hand, and to which ear, Mr. Barber allegedly
held the handheld device. Accordingly, the evidence presented
at trial consisted solely of conflicting testimonies by
Officer Cajigas-Flores and Mr. Barber, both as to whether Mr.
Barber stopped at the stop line and as to whether he held the
handheld device to his ear.
Government bears the burden of proof to establish every
element of an offense beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 363 (1970). In the instant case,
the Government has not met its burden. At trial, the
Government offered only the testimony of the citing officer.
There were no attempts to proffer corroborating evidence,
such as additional witness testimony, that might be
sufficient to establish proof of guilt beyond a reasonable
doubt. See United States v. Corbett, Crim. No. RWT
11-0467, 2014 WL 1765947, at *1 (D. Md. Apr. 30, 2014)
(affirming a conviction for failure to stop at a stop sign
when the prosecutor offered testimonies by both the citing
officer and an accompanying officer who heard the passenger
admit that “[the driver] didn't stop, but she did
instant case therefore boils down to the credibility of
Officer Cajigas-Flores and Mr. Barber. While the
defendant's interest is a relevant factor in determining
his credibility, Mr. Barber's stake in the outcome
“does not imply that the court may arbitrarily single
out his testimony, and denounce it as false.”
Reagan v. United States, 157 U.S. 301, 305 (1895);
see also United States v. Brutus, 505 F.3d 80, 87-88
(2d Cir. 2007) (noting that the trier of fact should
“evaluate the defendant's testimony in the same way
it judges the testimony of other witnesses” and that
“an instruction that the defendant's interest in
the outcome of the case creates a motive to testify falsely
impermissibly undermines the presumption of innocence because
it presupposes the defendant's guilt”). It would
undermine the axiomatic principles of the criminal justice
system to deem Mr. Barber's testimony false simply
because of his “motive” to avoid conviction for a
traffic violation. During his testimony, Mr. Barber spoke
clearly, confidently, and with considerable detail when
recounting the events that took place on November 17, 2018.
Meanwhile, Officer Cajigas-Flores could not recall the hand
in which Mr. Barber was allegedly holding the handheld device
while his vehicle was in motion.
this Court finds Officer Cajigas-Flores's testimony to be
credible, his testimony on its own does not hold sufficient
weight to establish Mr. Barber's guilt beyond a
reasonable doubt. It would be improper for this Court to
ascribe greater weight to Officer Cajigas-Flores's
testimony simply because of his status as a law enforcement
officer. See United States v. Hammond, 44 F.Supp.2d 743, 746
n.1 (D. Md. 1999) (“It would be . . . improper for the
Court to accept unquestioningly the testimony of a witness
because he is a police officer.”) (emphasis in
original). In light of the evidence presented at trial from
two equally credible witnesses, and the Government's
burden of proof, this Court finds Mr. Barber not guilty of
using a handheld telephone device while driving in violation
of 18 U.S.C. 13 (adopting Md. Code Ann., Transp. §
 At trial, the Government believed
that, under Maryland law, operating a handheld telephone
while the vehicle is in motion is a secondary offense, and
that, consequently, probable cause for a separate underlying
traffic offense must first exist to initiate the stop.
Accordingly, the Government argued that, while Mr. Barber was
not charged with failing to stop at a stop sign, the traffic
violation, nonetheless, constituted the primary offense
necessary to initiate the stop. This Court's review of
Maryland law, however, reveals that the use of a handheld
device while the vehicle is in motion (Md. Code Ann., Transp.
§ 21-1124.2(d)(2)) is no longer a secondary offense.
Effective October 1, 2013, the statute was amended to
expressly repeal the provisions of the law that required its
enforcement solely as a secondary offense. See 2013
Maryland Laws Ch. 638 (S.B. 339). ...