U.S. v. Manner, s. 88-3169

Citation281 U.S.App.D.C. 89,887 F.2d 317
Decision Date17 October 1989
Docket NumberNos. 88-3169,88-3170,s. 88-3169
Parties, 29 Fed. R. Evid. Serv. 73 UNITED STATES of America, Appellee, v. Kenneth MANNER, Appellant. UNITED STATES of America, Appellee, v. Orlando LEEPER, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Criminal Nos. 88-00126-02 & 88-00126-03).

Nicholas G. Karambelas, Washington, D.C. (Appointed by this Court), for appellant, Kenneth Manner in No. 88-3169.

Patrick M. Donahue, Washington, D.C. (Appointed by this Court), for appellant, Orlando R. Leeper in No. 88-3170.

Linda Mullen, Asst. U.S. Atty., Washington, D.C., for appellee in Nos. 88-3169 and 88-3170. Jay B. Stephens, U.S. Atty., John R. Fisher, Helen M. Bollwerk, Thomas J. Tourish, Jr., Elizabeth Trosman, Judith E. Retchin, and Erik P. Christian, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Kenneth Manner and Orlando Leeper, appellants in these consolidated criminal cases, were each convicted in United States District Court for the District of Columbia of one count of conspiring to distribute and to possess with intent to distribute cocaine 21 U.S.C. Secs. 841(a), 846 (1982), and one count of intentionally possessing with intent to distribute a substance containing cocaine base in a quantity exceeding fifty grams, 21 U.S.C. Secs. 841(a), 841(b)(1)(A)(iii) (1982 & Supp. V 1987). 1 Their appeals challenge (1) the district court's admission of evidence of Leeper's illegal sale of crack to an undercover officer approximately ten weeks after the crimes with which Leeper and Manner are charged in this case; (2) the district court's denial of Manner's motion to sever his case from Leeper's; and (3) the district court's denial of Manner's motion to suppress the physical evidence of the cocaine that Manner, Leeper, and Kevin Jackson, who pled guilty before trial, were allegedly planning to distribute. On the first issue, we remand the record in Leeper's case to the district court for a balancing on the record of the probative value to Leeper and the prejudicial effect on Leeper of the evidence of his later crime. On the last two issues, we find that the district court acted within its discretion. Thus, while we uphold Manner's conviction, we retain jurisdiction in Leeper's case until the remand is complete.

I. FACTUAL BACKGROUND

On March 4, 1988, Detective Richard Hinton of the Metropolitan Police Department ("MPD") was assigned to a roadblock constructed as part of Operation Clean Sweep in southeast Washington, D.C. Operation Clean Sweep was primarily a law enforcement operation designed to eradicate drug trafficking in the District of Columbia. To deter criminal behavior and unlicensed operation of motor vehicles, police asked the driver of each car coming to the roadblock for a driver's permit and car registration. Transcript of Motions Hearing (M. Tr.) at 13, 34 (May 13, 1988); Trial Transcript (Tr.) at 100-01. While Hinton was writing a traffic ticket at the roadblock, another officer directed Hinton's attention to a vehicle that was backing away from the roadblock at high speed in an apparently reckless fashion. Hinton rapidly maneuvered his cruiser to block in the vehicle, from which appellant Manner, the driver, and Kevin Jackson, the passenger, emerged. M. Tr. at 20-23; Tr. at 49-52. Manner talked loudly with his hands in his pockets, apparently instructing Jackson to run away. Tr. at 53, 195. When Manner failed to heed Hinton's order to take his hands out of his pockets and return to his vehicle, Hinton reached into his cruiser for his shotgun and radioed for assistance. M. Tr. at 24-26; Tr. at 54-56. At that point, Officers Chandler and Belcher of the MPD, who had also been manning the roadblock, arrived to assist Hinton. Tr. at 56, 104. Chandler and Hinton subdued Manner, who had been moving away from Hinton, and arrested him. M. Tr. at 28-30; Tr. at 105, 126-27.

While Jackson was exiting the passenger side in a crouched position, Hinton noticed that Jackson dropped on the ground a brown paper bag that contained "[s]omething blue protrud[ing] from the top." M. Tr. at 28. Chandler recovered the paper bag that Jackson had dropped, and saw that in it were smaller bags containing a substance he suspected to be cocaine. Tr. at 106. Hinton and Chandler then arrested Jackson as well. M. Tr. at 53. Upon investigation, the police found that the brown bag held 558 small packets, each containing a white rock substance that included cocaine base. Tr. at 106-09. Manner and Jackson were both arrested on charges of unlawful possession with intent to distribute a substance containing cocaine base in excess of fifty grams under 21 U.S.C. Secs. 841(a), 841(b)(1)(A)(iii). On June 3, 1988, after the police fingerprint expert determined that the small bags also contained a fingerprint from Leeper, the police arrested Leeper on the same charge.

On June 9, 1988, Jackson formally pled guilty to the charge against him, which carries a 10-year-to-life sentence and a fine of up to $4 million. See supra note 1. The prosecution agreed that if Jackson provided "substantial assistance in the investigation or prosecution of another person," the government would consider moving to modify or reduce his sentence. Transcript of Plea Hearing at 7 (June 9, 1988). On June 14, 1988, a grand jury returned a superseding indictment alleging violations by Manner and Leeper of 21 U.S.C. Secs. 841(a), 846 and 21 U.S.C. Secs. 841(a), 841(b)(1)(A)(iii). Original Record on Appeal at 12.

Events on the days preceding the arrests of Manner and Jackson were disputed at trial. Jackson, a prosecution witness, testified to the following. On March 1, 1988, he had met Manner in New York, where Manner "cook[ed] up the cocaine free-base," apparently making it into crack. Tr. at 179. Jackson then drove with Manner and Leeper to the Bronx, where Manner and Leeper purchased drug paraphernalia that could be used to package the crack. Leeper, Jackson, and an unidentified woman then drove with the crack and the drug paraphernalia to Leeper's apartment in Suitland, Maryland. On March 2, Jackson and Leeper, together with Manner, who had arrived several hours later, packaged 1,000 bags of crack at Leeper's home and sold them in southeast Washington for $7,500 profit. Tr. at 182-88. On March 4, Leeper, Jackson, and Manner made up another 558 bags of crack, which they planned to sell in southeast Washington. That evening, the three men drove to southeast, with Manner and Jackson in one car and Leeper, following a different route, in another. Tr. at 192. On their way, Jackson and Manner encountered the roadblock and were arrested. Tr. at 193.

Jackson further explained that Manner was a "big man" in the drug world and that Leeper "was working for" Manner in New York. Thus, Manner "put[ ] out" money for drugs, but if he was unable to "make the pick-up" it would be up to his "next man" or "lieutenant"--Leeper--to do so. Tr. at 203-04, 213.

After Jackson testified, the prosecution called to the stand Detective Rene Dessin of the MPD. He testified that on May 25, 1988, while working as an undercover officer, he purchased from Leeper $20 worth of drugs that tested positive for cocaine. Leeper was arrested shortly thereafter. At trial, Dessin identified the drugs as crack cocaine. Tr. at 225-26. Dessin added that he knew nothing about the case on trial. Tr. at 231.

To discredit Jackson's testimony, Sabrena Thompson, Leeper's common-law wife, testified that in the week of February 29-March 4, 1988, Leeper was employed by a painting company. She stated that he worked every day from February 29 to March 3 and returned home each evening. She then testified that on March 4, Leeper's day off, she and Leeper ran errands and that Leeper did not leave her presence during the entire day. Tr. at 250-58. According to Thompson, Jackson had never been in the apartment where she and Leeper lived. Tr. at 258. Leeper also called to the stand Denise Thigpen, a cousin of Jackson's Washington girlfriend, who testified that she had frequently seen Jackson selling drugs in southeast Washington. Tr. at 270-73.

In rebuttal, the prosecution called Kevin Jackson's mother, who testified that Leeper and his wife met her at Union Station, Washington, D.C. after Jackson's arrest and gave her a bag belonging to Jackson. Tr. at 298-99. Desiree Kirkland, the mother of Jackson's son, testified that the last time she saw Jackson before his arrest was during his visit to her home in New York on March 1, but that in the months prior to March 1 she had seen him nearly every day. Tr. at 292-94.

II. EVIDENCE OF LEEPER'S LATER CRIME
A. Background Considerations

Federal Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Thus, evidence of a defendant's bad acts may be admissible if it is relevant to a material issue other than character, such as intent. United States v. Foskey, 636 F.2d 517, 523 (D.C.Cir.1980). In the context of Rule 404(b), "similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).

Even if this evidence passes the relevancy threshold of Rule 404(b), however, it must still satisfy Rule 403, which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the...

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