12 F.3d 1128 (D.C. Cir. 1994), 92-3237, United States v. Washington

Docket Nº:92-3237, 92-3246.
Citation:12 F.3d 1128
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Antoine D. WASHINGTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Glen EARLY, Jr., a/k/a William Kevin Marcus, Defendant-Appellant.
Case Date:January 14, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1128

12 F.3d 1128 (D.C. Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Antoine D. WASHINGTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Glen EARLY, Jr., a/k/a William Kevin Marcus, Defendant-Appellant.

Nos. 92-3237, 92-3246.

United States Court of Appeals, District of Columbia Circuit

January 14, 1994

Argued Dec. 6, 1993.

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[Copyrighted Material Omitted]

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[304 U.S.App.D.C. 265] Appeal from the United States District Court for the District of Columbia (Nos. 92cr00131-02 and 92cr00131-03).

R. Kenneth Mundy (appointed by the Court), argued the cause and filed the briefs for appellant in No. 92-3237.

Douglas J. Wood, argued the cause and filed the briefs for appellant in No. 92-3246.

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[304 U.S.App.D.C. 266] Norman C. Bay, Asst. U.S. Atty., argued the cause for appellee. With him on the brief were J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, John R. Fisher, Roy W. McLeese, III, and Gilberto DeJesus, Asst. U.S. Attys.

Before WALD, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellants Antoine D. Washington and Glen Early were each convicted after a jury trial of one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988). Together, Washington and Early raise eight challenges to their convictions. Because we disagree with each of the defendants' arguments, we affirm. We reject the assertion that the trial judge erred in denying Early's and Washington's motions to suppress evidence, Washington's motion to sever the trials, and Early's motion to suppress photo identification testimony. We also find that the district court properly admitted "other crimes" evidence about Early and we disagree with the defendants' claims that there was insufficient evidence supporting their convictions of aiding or abetting the possession of cocaine. Nor are we persuaded that reversal of Early's conviction is warranted by the district court's decision to deny Early's motion to introduce only the impeaching portions of prior statements by government witnesses. Although the jury instructions contained an unconstitutional reasonable doubt instruction, the district court did not commit plain error, and this is not a case in which the supervening-decision doctrine counsels reversal. Finally, we hold that the district court did not err in enhancing Early's sentence for reckless endangerment of the public.

I. BACKGROUND

On February 18, 1992, the District of Columbia Metropolitan Police Department broadcast a lookout for a man with a gun in the vicinity of a McDonald's restaurant at Peabody Street and Georgia Avenue, N.W. In connection with that broadcast, a further lookout was announced for three black men in a burgundy four-door car. Officer Hemphill, who was in the lookout area, spotted three black men in a red two-door Mazda. Early was the driver, Washington was in the front passenger seat, and Daniel Wright was in the back seat. 1 After Hemphill, who was driving in a marked police car, activated his siren and ordered the Mazda to stop, the driver obeyed. As Hemphill approached the car on foot, Wright told Early to "pull off" because he had drugs in his possession, and the Mazda sped away. Hemphill then returned to his car to broadcast a lookout, which was heard by Officers Jewell and Iuzzolino, who were in a patrol car coming from the opposite direction of the Mazda. When Jewell and Iuzzolino saw the Mazda, they chased it into an alley. The Mazda slowed, and Washington's seat moved forward as Wright jumped out of the passenger side door, carrying a clear ziplock bag containing a white or light-colored substance. Wright then crossed in back of the car to the driver's side. After running quickly in tandem with the Mazda for about one block, Wright threw the plastic bag into the car through the driver's side window. He then split away from the Mazda and Iuzzolino pursued him on foot.

Soon thereafter, Early lost control of the Mazda and it flipped onto the driver's side. Early and Washington climbed through the passenger's side window and fled from the car. While running, Early held his left arm as if it was injured. Officer Jewell radioed for assistance and then went to the spot where Washington had scaled a fence. There she found a Bell Atlantic pager which had been purchased by Early. Meanwhile, in response to Jewell's broadcast, Officer Lesher spotted Washington emerging from an alley. Lesher chased Washington and apprehended him within a block of the Mazda. Washington had $586 in cash and a pager on his person. Iuzzolino and Jewell returned to the Mazda and saw, lying inside the overturned

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[304 U.S.App.D.C. 267] car on top of the driver's side door, a plastic ziplock bag containing white rock chunks in plain view. The bag was seized without a warrant and was found to contain narcotics.

Later, Officer Brigindi investigated the Mazda's license plate number and discovered that the car was registered to Glen Early. About a week after the car chase, he obtained a single photo of Early and showed it to Iuzzolino, who recognized Early as someone he had seen before on his beat and as the driver of the Mazda. Brigindi obtained an arrest warrant for Early and took him into custody. At the time of the arrest, Early was wearing a cast on his left arm. On Early's person was a beeper, some money, and personal papers, including a Kaiser Permanente health card in the name of Marcus Williams, who is Early's cousin. The record shows that the day after the car chase, someone used this health card to receive treatment for an injury to his left arm, and that person was not Marcus Williams.

On July 14, 1992, Judge Harris issued a memorandum opinion in which he denied: (1) both Washington's and Early's motions to sever; (2) Early's motion to suppress the plastic bag containing drugs; and (3) Early's motion to suppress identification testimony based on the showing of a single photograph. Memorandum Opinion, July 14, 1992 ("Mem. Op."). The district court reserved judgment on Washington's motion to suppress the tangible evidence recovered from his person at the time of his arrest. At the suppression hearing on July 15, 1992, Judge Harris orally denied Washington's motion to suppress the evidence recovered from his person. On the second day of trial, Early renewed his motion to suppress the drugs found in the car. The district court denied the renewed motion.

On July 21, 1992, Washington and Early were each convicted by the jury on the possession count. Washington was sentenced to 151 months in prison and Early was sentenced to 174 months in prison. In total, Early and Washington raise eight challenges to their convictions, each of which we will address in turn.

II. ANALYSIS

  1. Unreasonable Search and Seizure

    Early challenges the district court's denial of his motion to suppress the evidence retrieved from the Mazda. Early contends that when Officer Hemphill activated his sirens and ordered the driver of the Mazda to stop, he effectuated a seizure within the meaning of the Fourth Amendment. It is well-established that " 'a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " United States v. Jordan, 958 F.2d 1085, 1086 (D.C.Cir.1992) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). In addition, the person must have actually submitted to the assertion of authority. California v. Hodari D., 499 U.S. 621, 626-27, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). Although a reasonable person would not have believed that she was free to continue driving once Officer Hemphill activated his sirens and ordered the Mazda's driver to stop, Early did not in fact submit to the officer's order. Early initially stopped, but he drove off quickly before Officer Hemphill even reached the car. Because Early did not submit to Hemphill's order, he was not seized within the meaning of the Fourth Amendment.

    The district court found that the warrantless seizure of the drugs from the Mazda did not violate the Fourth Amendment because the vehicle was abandoned once the defendants left it overturned in the alley and fled the scene, and the plastic bag which appeared to contain drugs was in plain view inside the overturned Mazda lying on top of the driver's side door. See generally United States v. Thomas, 864 F.2d 843, 845-46 (D.C.Cir.1989). We review a finding of abandonment for clear error, id. at 846, and conclude here that it was not clearly erroneous for the district court to determine that the defendants had abandoned the Mazda. Therefore, the prerequisites for a valid plain view search were met--the officers were lawfully in a position to observe the plastic ziplock bag, the officers had a lawful right of

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    [304 U.S.App.D.C. 268] access to the bag, and the incriminating nature of the contents of the bag was immediately apparent. See Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); see also United States v. Patrick, 959 F.2d 991, 997 (D.C.Cir.1992). In other words, the police officers had probable cause to believe that the bag contained evidence of a crime. See Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987).

    Washington also contests the district court's denial of his motion to suppress the money and pager seized from his person by Officer Lesher. Washington claims that the physical evidence seized from his person is the fruit of a...

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