U.S. v. Washington, s. 95-3097
| Citation | 106 F.3d 983 |
| Decision Date | 21 February 1997 |
| Docket Number | 95-3098 and 95-3099,Nos. 95-3097,s. 95-3097 |
| Parties | , 46 Fed. R. Evid. Serv. 719 UNITED STATES of America, Appellee, v. Dwayne A. WASHINGTON, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeals from the United States District Court for the District of Columbia (Nos. 93cr00451-06, 93cr00451-08 and 93cr00451-12).
Stanley J. Reed, Bethesda, MD, appointed by the court, argued the cause and filed the briefs, for appellant John C. Harmon.
Allen E. Burns, Washington, DC, appointed by the court, argued the cause, for appellant Troy E. Taylor, with whom A.J. Kramer, Federal Public Defender, was on the briefs.
Steven R. Kiersh, Washington, DC, appointed by the court, filed the briefs, for appellant Dwayne A. Washington.
Mary-Patrice Brown, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher, Leslie A. Blackmon, Carol A. Fortine and Steven W. Pelak, Assistant U.S. Attorneys, were on the brief.
Before: WALD, GINSBURG and ROGERS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
In these consolidated appeals, appellants are three officers of the Metropolitan Police Department ("MPD"), who, with others, were caught in a reverse-sting operation. They challenge their convictions and sentences for a variety of drug-related charges, raising numerous claims both jointly and individually. In Part I, we summarize the relevant evidence. In Part II, we address the challenges to the jury instructions on entrapment, specifically, the district court's refusal to instruct the jury on derivative entrapment as well as the sufficiency of the general entrapment instructions. We also address appellant Washington's challenge to the refusal to admit evidence of his prior commendations and appellant Harmon's challenge to the exclusion of his prior consistent statement. Further, we address appellants Taylor and Washington's challenge to the instructions on attempted possession of cocaine with intent to distribute, both as to the sufficiency of the evidence and the jury instructions themselves, as well as appellant Harmon's challenge to the bribery instruction. In Part III, we address the exclusion of expert testimony and appellants' various challenges to their firearms convictions under 18 U.S.C. § 924(c). Finally, in Part IV, we address appellants' sentencing challenges. 1 For the reasons that follow, we affirm the judgments of convictions in all respects save for one of the firearms convictions of each appellant; we remand the cases for resentencing in light of the vacation of these convictions.
In December 1992, undercover FBI Agent Jose Olivier, posing as a member of a Miami-based narcotics organization, told MPD Officer Nygel Brown that he was interested in obtaining protection from Brown and other willing police officers for his illegal narcotics activities while in the District of Columbia. Olivier explained that he was working for a cocaine dealer named Juan, and they wanted to set up a "drug base" in the District of Columbia. Brown, who was already on a list of suspected corrupt officers, expressed his interest and stated that he knew other potential recruits. On two separate occasions during February and March 1993, Brown accompanied and "protected" Olivier while Olivier delivered $250,000 in cash, ostensibly for a drug purchase on one occasion and for money laundering on the other. Brown was paid $1000 on each occasion.
On March 4, 1993, Brown introduced Olivier to Officer Sean Wiggins. Brown told Olivier that Wiggins had dealt drugs both before and after becoming a police officer, which Wiggins later confirmed. Upon learning from Olivier the same account of his plans to use the District of Columbia as a transit point for his drug operation, Wiggins was enthusiastic to join. On March 23, Brown and Wiggins escorted Olivier on another staged money laundering run. Olivier paid Wiggins $1000, but this time gave Brown $1500, telling Brown the bonus was for recruiting Wiggins.
On April 25, 1993, Brown and Wiggins were flown by Olivier to Miami, Florida, to be introduced to Olivier's boss "Juan," undercover FBI agent Robert Williams. After wining and dining the officers, Williams informed them that he intended to fly large quantities of cocaine into the District of Columbia area, and that he wanted police officers to "protect" those shipments until couriers took possession of the cocaine and left the District of Columbia. Williams stated that the officers would receive $2000 for each run, but that Wiggins and Brown would receive $7500 a run for their leadership roles. Williams told them that he wanted "dirty police officers, people who were used to protecting drugs." Wiggins and Brown agreed to this proposal without reservation.
On June 8 and 9, 1993, Brown and Wiggins introduced Olivier to Officers Ronald Bailey, William Hackney, and Kyle Davis. After meeting with Olivier individually and learning of the drug operation, they each agreed to join. On July 13, 1993, the officers participated in the first of three staged drug runs. Olivier, Brown, and Wiggins drove to the airport, picked up a shipment of cocaine, and drove it back to Olivier's house in Northwest Washington. "Couriers" subsequently arrived to pick up the drugs, and Wiggins, Bailey, and Hackney escorted them from Olivier's house to the Capital Beltway, which encircles the District of Columbia. Bailey and Hackney each received $2000, and Brown and Wiggins, $7500.
On August 9, 1993, Brown and Hackney brought Roland Harris and John Harmon to meet Olivier. After making sure that Harris and Harmon were interested, Olivier asked each of them whether he had any prior experience with the drug world. Both officers responded affirmatively. Harmon stated that he had sold drugs with Hackney and that he had done "rips" on the street, picking up drugs or money dropped by fleeing dealers. After explaining that the officers would be expected to drive behind the couriers and to be prepared to "use their badges" if necessary, Olivier stated that his organization had successfully employed police officers in numerous other cities. Neither Harris nor Harmon expressed any reluctance to join the endeavor, and on August 10, 1993, both joined in the second of the three runs. Harmon and the other escorts received $2000, while Wiggins and Brown each received $7500 for their day-long services.
On August 25, 1993, Olivier told Hackney and Brown that Juan wanted to set up a second team, and asked Hackney to lead it and recruit as many new officers as he could. Hackney readily agreed, and on September 16, 1993, Brown and Hackney brought Officers Dwayne Washington, Darryl Lawson, Mark Reid, and Vikki Childress to meet Olivier. Officer Troy Taylor, who was also invited, did not attend because he was working. After Olivier engaged in his standard introduction and questions, Washington told Olivier not only that he had worked in vice and was used to being around drugs, but that he had stolen drugs from street dealers because "they ain't gonna say nothing." Washington also told Olivier that he was told by Hackney that he would not have to touch the drugs and that he was comfortable with the arrangement. After similar discussions with Olivier, the other three officers also agreed to join the operation.
On October 4, 1993, Taylor was introduced to Olivier. After being given the standard pitch from Olivier, Taylor agreed to participate. Taylor described his former experience "running the coke" and "shipping it out to the little people" for a local drug dealer. Although he claimed to have shot people in the course of his illegal activities, and stated that he would "take somebody's life, point-blank" if things went wrong, he said he had never killed anyone. He also said that he knew a "hit man" if Olivier encountered "any problems with anybody." The next day, on October 5, after attending a morning meeting with all the officers, Washington and Taylor joined in the third and final drug run.
On November 16, 1993, Olivier held separate meetings with two groups of the officers to update them on the operation. Olivier informed the officers that the next run, which would be conducted around Thanksgiving, would include a larger shipment and would be conducted from a hotel room, rather than his townhouse. During the meeting, Olivier mentioned the high crime rates and murders connected with drug trafficking, and referencing a newspaper article, discussed at length an actual case in Puerto Rico where two bodies had been found in a car trunk, cut up into "seven pieces." At trial, Olivier testified that the story was idle conversation; Harmon testified that he understood it to send a message about the consequences of betrayal. On duty during the time of the meeting, Taylor learned of the plans from Olivier over the telephone the next day.
On December 14, 1993, Taylor, Washington, and Harmon, along with eight other officers, assembled in two hotel rooms with Olivier and another courier to prepare for the cocaine shipment scheduled for that day. While they were discussing their runs, FBI agents and MPD senior officers rushed in to the hotel rooms with guns drawn, and arrested the officers.
Officers Wiggins, Hackney, Harmon, Washington, and Taylor were charged on April 26, 1994, in a superseding indictment with the following crimes: conspiracy to commit bribery, in violation of 18 U.S.C. § 371; conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; bribery, in violation of 18 U.S.C. § 201; attempted possession with intent to distribute cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846; and two counts per defendant of using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18...
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