U.S. v. Anderson, s. 88-3096

• Decision Date: 11 August 1989
• Docket Number: 88-3134,Nos. 88-3096,s. 88-3096
• Citation: 881 F.2d 1128
• Parties: , 58 USLW 2162, 28 Fed. R. Evid. Serv. 942 UNITED STATES of America, Appellee, v. Richard ANDERSON, Appellant. UNITED STATES of America, Appellee, v. Kenneth V. GREENWOOD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1128

881 F.2d 1128

279 U.S.App.D.C. 413, 58 USLW 2162,

28 Fed. R. Evid. Serv. 942

UNITED STATES of America, Appellee, v. Richard ANDERSON, Appellant.

UNITED STATES of America, Appellee, v. Kenneth V. GREENWOOD, Appellant.

Nos. 88-3096, 88-3134.

United States Court of Appeals, District of Columbia Circuit.

Argued May 16, 1989.

Decided Aug. 11, 1989.

On Appeal from the United States District Court for the District of columbia.

M. Elizabeth Kent, Washington, D.C., (appointed by the court) for appellant Anderson in No. 88-3096.

David Kagan-Kans (appointed by the court) for appellant Greenwood in No. 88-3134.

Kathleen A. Felton, Attorney, U.S. Dept. of Justice, with whom Jay B. Stephens, U.S. Atty. and Michael K. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee in No. 88-3096 and No. 88-3134.

Before MIKVA and WILLIAMS, Circuit Judges, and HUBERT L. WILL, ^* Senior District Judge, United States District Court for the Northern District of Illinois

Opinion for the Court filed by Circuit Judge MIKVA.

Concurring opinion filed by Senior District Judge WILL.

MIKVA, Circuit Judge:

These cases require us to decide whether the district court's denial of cross-examination of a prosecution witness regarding an unrelated murder indictment against her, dismissed without prejudice eleven months before trial, violated appellants' confrontation rights under the Sixth Amendment. We hold that the district court's ruling in this case was constitutional error, for the jury might reasonably have found that the government's ability to reinstate the murder charge furnished the witness with a motive for favoring the prosecution in her testimony. See Delaware v. Van Arsdall, 475 U.S. 673, 678-80, 106 S.Ct. 1431, 1434-36, 89 L.Ed.2d 674 (1986).

Because the witness in this case was a key witness against appellant Anderson and because the prosecution's case against Anderson was otherwise weak, we cannot conclude that the district court's denial of cross-examination was, on the record as a whole, harmless beyond a reasonable doubt as to Anderson. Accordingly, we must reverse Anderson's conviction and remand for a new trial. With respect to appellant Greenwood, however, the weight of the other evidence against him convinces us, beyond a reasonable doubt, that the denial of cross-examination was harmless as to him. Because we also reject Greenwood's other arguments on appeal, his convictions are affirmed.

I.

Richard Anderson and Kenneth V. Greenwood were convicted on May 16, 1988, after an eight-day jury trial, of various narcotics and firearms charges. Greenwood was found guilty of unlawful use of a firearm in aid of drug trafficking, in violation of 18 U.S.C. Sec. 924(c)(1); unlawful possession with intent to distribute five grams or more of a mixture containing cocaine base, in violation of 21 U.S.C. Sec. 841(a); and possession of an unregistered firearm, in violation of 26 U.S.C. Sec. 5861(d). Anderson was convicted of unlawful possession with intent to distribute five grams or more of a mixture containing cocaine base, in violation of 21 U.S.C. Sec. 841(a). Both appeal.

A. Facts

On the evening of November 19, 1987, D.C. Metropolitan Police officers, pursuant to a search warrant, forcibly entered Apartment 201 at 3507 Jay Street, N.E., Washington, D.C. The police found several people inside the two-story apartment. On the second floor, a woman, Kim J. Vanfield, was stopped as she was entering the bathroom and trying to close the door behind her. In an adjacent bedroom, a woman in a nightgown, later identified as Pearl L. Patterson, was lying on a bed, a man was standing in the room, and another man, appellant Greenwood, was hiding in the closet. Police found a loaded .32 caliber revolver under the mattress of the bed on which Patterson was lying. Police searched Greenwood and found two small packets of marijuana and $75 in cash. Police also seized a plastic bag containing "crack" cocaine from Patterson's purse and a plastic container of a rock-like substance from Vanfield's person.

Police found appellant Anderson standing in the doorway of the other bedroom. According to the arresting officer, Investigator DePasse, Anderson threw approximately $500 in cash behind the partially-opened bedroom door when the police approached. Other police officers, however, did not see Anderson throw down any money, or at least could not recall. DePasse testified that Officer Howard, the main "seizing officer," must have initially picked up the money, but Howard testified that he neither saw nor seized any money from the bedroom floor. Officer Proulx, the crime scene search officer, stated that he neither saw nor photographed money on the bedroom floor. No drugs, money, or firearms were recovered from Anderson, who did not attempt to resist arrest or flee.

Police recovered from the bedroom behind Anderson 20 grams of "crack" cocaine, about four ounces of cocaine powder, a triple-beam scale, a glass plate with traces of white powder, and a torch head for use with a butane canister. The bedroom also contained a loaded .32 caliber revolver in a holster attached by a clip to the bedframe; an unregistered sawed-off shotgun, broken down into its parts, with ammunition, inside a brown bag on the floor; and another bag on the floor containing ammunition for both guns, almost $200 cash, and a small amount of marijuana. Police also seized, from the lock on the inside of the bedroom door, a set of keys in a black key case and, from the bedroom itself, a photograph of appellant Greenwood, a calculator, a small green notebook a wallet containing appellant Greenwood's driver's license and some photos, and a tax return and other documents bearing Vanfield's name.

Police arrested Anderson, Greenwood, Vanfield, and Patterson; four persons downstairs were searched, interviewed, and released. No narcotics were found or seized from the kitchen, kitchen table, dining room, or dining room table. Vanfield and Patterson later pled guilty to simple possession of a controlled substance, in violation of 18 U.S.C. Sec. 844.

B. Prosecution Testimony

Detective Lorren Leadmon, one of the officers who participated in the execution of the search warrant, testified that he had seen Greenwood and Vanfield in the Jay Street apartment two days earlier and that Greenwood gave him a tour of the apartment. Leadmon stated that Greenwood used a set of keys in a black key case to unlock the door of the bedroom in which the drugs, guns, and drug paraphernalia were later found. Leadmon identified the keys and key case seized from the bedroom during the November 19 search as those that he saw Greenwood use on November 17. Leadmon also asserted that on two subsequent occasions, in December 1987 and January 1988, he returned to the same apartment and Greenwood answered the door both times. Leadmon testified that Greenwood stated that he and Vanfield, his girlfriend, were living in the apartment.

John Kraemer, a documents examiner with the Metropolitan Police Department and a qualified handwriting expert, testified for the prosecution that, in his opinion, Vanfield was the writer of several of the entries in the notebook that had been seized from the bedroom and that Greenwood was probably the writer of several of the other entries, but that he could not associate Anderson with any of the writings in the notebook.

Detective Charles DiDomenico testified as an expert in the sale and distribution of illegal drugs in Washington, D.C. He explained the difference between cocaine in powder form and cocaine base, or "crack," and how the powder is used to produce crack cocaine. He testified that the quantity of drugs, the weapons, the paraphernalia, the notations in the notebook, and the cash found in the apartment were inconsistent with personal use, but were typical of items found in a "crack house," a place where crack cocaine is processed, sold, and prepared for distribution.

C. Tanya Barnes' Testimony

Tanya Barnes, one of the persons present in the apartment during the November 19 raid, testified for the prosecution over defense counsel's objection that Barnes' name was not given in the government's pretrial notice of witnesses. Barnes, testifying under a grant of complete transactional and use immunity, stated that, on the day of the raid, she saw Anderson and Greenwood carrying bags of some kind into the apartment and that she saw Greenwood carry a package of cocaine upstairs. She recalled that, later that day, she saw Greenwood, and then Anderson, in the kitchen processing (or "cooking") the cocaine powder into crack, although she admitted to falling asleep when Anderson was cooking the cocaine. She also testified that, when the police arrived that evening, there was crack in the kitchen and crack, plastic bags, and an upside-down jar containing crack on the dining room table, all of which she stated the police seized.

Barnes further testified that she had seen Anderson and Greenwood together in the apartment on two prior occasions that fall: on the first occasion she saw Greenwood, but not Anderson, selling drugs, and on the second occasion she saw Greenwood selling cocaine and Anderson "holding" a large quantity of crack.

The jury did not hear, however, that Barnes had been charged with second-degree murder in June 1986 and that the charge was dismissed without prejudice in April 1987, less than a year before appellants' trial. This charge was first revealed to the court by defense counsel at voir dire on the morning of the second day of Barnes' testimony:

MR. STOWE [counsel for Anderson]: My other request, Your Honor, is this, to be allowed to question the witness concerning the dismissal of the murder charges, because it is our understanding from interviewing a number of witnesses or a number of persons last night out in the Mayfair-Paradise area that this was brought about or came about as a result of an agreement between the witness and...