U.S. v. Dunn

• Decision Date: 13 May 1988
• Docket Number: 87-3029 and 87-3030,Nos. 87-3025,s. 87-3025
• Citation: 269 U.S.App.D.C. 373,846 F.2d 761
• Parties: , 56 USLW 2692, 25 Fed. R. Evid. Serv. 1087 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 761

846 F.2d 761

269 U.S.App.D.C. 373, 56 USLW 2692,

25 Fed. R. Evid. Serv. 1087

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.

Argued March 25, 1988.

Decided May 13, 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.

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 inferences from other evidence; in so doing it may support inferences as to ultimate intent. Indeed, all evidence as to what a defendant did bears upon what he intended to do. Suppose, for example, that an expert testifies at a homicide trial that the victim died of a poison administered daily in small doses over a long period. The evidence goes not only to what happened, but suggests extreme premeditation on the part of whoever doled out the poison. It is only as to the last step in the inferential process--a conclusion as to the defendant's actual mental state--that Rule 704(b) commands the expert to be silent.

The Fifth Circuit has recently read Rule 704(b) to permit expert testimony far closer to the ultimate issue of intent than was Officer Coates's. In United States v. Dotson, 817 F.2d 1127 (5th Cir.1987), the defendant objected under Rule 704(b) to the trial court's admission of testimony by the government's tax expert identifying evidence that would indicate willful intent to evade taxes. Id. at 1127, 1129, 1132. In rejecting the claim, the Fifth Circuit stressed that "the expert's summary merely explained his analysis of the facts indicating willful evasion" and did not "directly embrace the ultimate question of whether [the defendant] did in fact intend to evade income taxes." Id. at 1132. Contrast United States v. Windfelder, 790 F.2d 576, 582 (7th Cir.1986), where the court found that Rule 704(b) would prohibit an IRS agent from testifying that his analysis of the defendant's accounts and tax returns led him to conclude that the defendant had "intentionally understated his income."

Green's theory would seem to bar testimony as to modus operandi, which in fact is commonly admitted. Although the appellate courts approving such admission have not mentioned Rule 704(b), the stream of favorable decisions would be puzzling if Green's thesis were valid. See United States v. Espinosa, 827 F.2d 604, 611-13 (9th Cir.1987) (expert testifies that evidence indicates use of defendant's apartment as "stash pad" for money and narcotics); United States v. Resto, 824 F.2d 210 (2d Cir.1987) (testimony on role of a "steerer" in a street drug operation); United States v. Nersesian, 824 F.2d 1294, 1307-09 (2d Cir.) (testimony on the meaning of narcotics-related code words), cert. denied, --- U.S. ----, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); United States v. Monu, 782 F.2d 1209, 1210-11 (4th Cir.1986) (testimony on purity of heroin and testimony that balance scale was tool of heroin distribution); United States v. Cruz, 797 F.2d 90, 96 (2d Cir.1986) (testimony on use of food stamps in narcotics sales); United States v. Young, 745 F.2d 733, 760-61 (2d Cir.1984) (testimony about the role that "heroin mills" play and the type of paraphernalia that one would expect to find at a mill, and that material found in an apartment was precisely what one would expect to find in a mill), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985).

Accordingly, we conclude that the trial court's admission of expert testimony did not violate Rule 704(b).

We also reject Green's objections that the testimony should have been disallowed as overly prejudicial and cumulative under Fed.R.Evid. 403 and as not meeting Fed.R.Evid. 702's requirement that expert testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." The trial judge has broad discretion on both issues. United States v. Weisz, 718 F.2d 413, 431 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984) (Rule 403); United States v. Johnson, 527 F.2d 1381, 1384 (D.C.Cir.1976) (assessment of need for expert testimony). Federal courts often permit experts to testify on narcotics operations because jurors are commonly unfamiliar with the methods by which drug dealers attempt to conceal their activities. United States v. Daniels, 723 F.2d 31, 33 (8th Cir.1983). We thus find no abuse of discretion as to either point.

We have examined defendants' other challenges to their convictions, but conclude that the only one that requires discussion is Fleming's claim that there was insufficient evidence that he possessed cocaine with intent to distribute. At issue here are both elements of this charge: possession and intent to distribute. With respect to the first, we have previously held that possession of cocaine may be "constructive," given that "[i]t is rare that drugs are found to be in the 'actual' possession of the defendant." United States v. Pardo, 636 F.2d 535, 548 (D.C.Cir.1980). Constructive possession exists when the defendant is "knowingly in a position, or [has] the right to exercise 'dominion and control' of the drug either personally or through others." United States v. Raper, 676 F.2d 841, 847...