846 F.2d 761 (D.C. Cir. 1988), 87-3025, U.S. v. Dunn

Docket Nº:87-3025, 87-3029 and 87-3030.
Citation:846 F.2d 761
Party Name:UNITED STATES of America v. Richard Earl DUNN, Appellant. UNITED STATES of America v. Angelo Michael FLEMING, Appellant. UNITED STATES of America v. Charles Duke GREEN, Appellant.
Case Date:May 13, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 761

846 F.2d 761 (D.C. Cir. 1988)

UNITED STATES of America

v.

Richard Earl DUNN, Appellant.

UNITED STATES of America

v.

Angelo Michael FLEMING, Appellant.

UNITED STATES of America

v.

Charles Duke GREEN, Appellant.

Nos. 87-3025, 87-3029 and 87-3030.

United States Court of Appeals, District of Columbia Circuit.

May 13, 1988

Argued March 25, 1988.

Appeals from the United States District Court for the District of Columbia (Criminal Nos. 87-00024-02, -03 and -04).

Richard S. Stern, Washington, D.C., (Appointed by this Court), for appellant, Richard Earl Dunn.

Page 762

Ed Wilhite, Washington, D.C., (Appointed by this Court), for appellant, Angelo M. Fleming.

Daniel E. Ellenbogen, Washington, D.C., (Appointed by this Court), for appellant, Charles Duke Green.

Geoffrey R. Brigham, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty. and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

In these consolidated cases defendants Richard E. Dunn, Angelo Fleming and Charles Duke Green appeal their convictions for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841 (1982). The main issue is Green's argument that the trial court violated Fed.R.Evid. 704(b) when it allowed a police detective to testify that the quantities of drugs, drug-packaging material, drug paraphernalia and weapons located in the townhouse where defendants were arrested indicated the presence of a retail drug operation. We find no violation of Rule 704(b), which merely bans an expert witness's expressing an opinion as to whether a defendant has "the mental state or condition constituting an element of the crime charged." 1

Here, Officer Coates testified as to criminal modus operandi. He explained that the packaging paraphernalia in the townhouse, such as vials and wax paper bags, were common among drug distributors. Tr. at 390, 404-06, 411-12. He also noted that I-beam scales, measuring spoons, and mannitol were tools of the narcotics trade. Id. at 414-16. He further gave his opinion as to the overall nature of the activities being carried on in the townhouse: "It's a retail operation used for the everyday distribution, distributing of primarily crack and heroin." Id. at 416. But he never expressed an opinion on whether the particular defendants present in the townhouse had the requisite intent to distribute cocaine.

Green's theory evidently is that the opinion testimony violated Rule 704(b) because, when combined with the evidence of the condition of the townhouse, and of defendants' presence therein and activities on the occasion of their arrest, it might lead a jury to infer that defendants intended to distribute cocaine.

Green's logic would swallow the permissive aspects of Rule 704. All expert evidence assists jurors in analyzing and drawing...

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