902 F.2d 90 (D.C. Cir. 1990), 88-3178, U.S. v. Poston

Docket Nº:88-3178.
Citation:902 F.2d 90
Party Name:UNITED STATES of America v. W.J. POSTON, Appellant.
Case Date:May 04, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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902 F.2d 90 (D.C. Cir. 1990)



W.J. POSTON, Appellant.

No. 88-3178.

United States Court of Appeals, District of Columbia Circuit.

May 4, 1990

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[Copyrighted Material Omitted]

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Argued March 20, 1990.

Navron Ponds, Washington, D.C., for appellant.

Eric M. Acker, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Helen M. Bollwerk, Mary Ellen Abrecht, and Leslie A. Blackmon, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.


Opinion for the Court filed by Circuit Judge THOMAS.


W.J. Poston was charged with aiding and abetting the possession of phencyclidine (PCP) with intent to distribute, 18 U.S.C. Sec. 2; 21 U.S.C. Sec. 841(a), and with aiding and abetting the attempted distribution of PCP, 18 U.S.C. Sec. 2; 21 U.S.C. Sec. 846. After a two-day jury trial, he was convicted of the former charge, but acquitted of the latter. On appeal, Poston makes four arguments for reversing his conviction. Poston first claims that there is insufficient evidence to support his conviction for aiding and abetting his codefendant's possession of PCP with intent to distribute. Second, Poston alleges that the trial judge abused his discretion by denying a motion for a continuance of the trial. Third, Poston argues that his counsel rendered constitutionally ineffective assistance because he had too little time to prepare thoroughly for trial. Finally, Poston claims that he was denied due process of law when the government declined to request a reduction of his mandatory minimum sentence, since, following his arrest, a police officer had promised him that his cooperation would be rewarded. Finding no merit in any of these contentions, we affirm Poston's conviction.


There is little dispute regarding the material facts. According to Poston's post-arrest statement, which was not contested at trial, he was talking with three men in a Southeast Washington parking lot on the afternoon of May 10, 1988. Another man, Anthony Young, approached the group and asked one of Poston's companions, Harold, if he had "anything." Appendix (App.) at 17. Harold said that he did, then left the other men. He returned five minutes later, carrying two PCP-filled soft drink bottles in a white bag, which he handed to Young. Poston then announced that he was leaving, and " 'Tony' [Young] asked if he could get a ride to Anacostia to serve 'White Boys.' " Id. Poston agreed to provide Young with a ride, knowing that Young was carrying PCP and that he intended to distribute it to a third party. Appellant's Brief (App. Br.) at 19-20.

Meanwhile, at a different location, the police were conducting surveillance of a public telephone booth from which would-be PCP buyers were known to contact sellers to arrange deals. App. at 60-61. After one individual used the phone in a manner suggesting that he was arranging a drug transaction, four police officers followed him as he drove to a nearby location and waited in his car. Id. at 61-66. After several minutes, a Nissan pickup truck, driven by Poston, approached. Id. at 150, 176. The truck's passenger, Anthony

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Young, stepped out, gingerly carrying the soft drink bottles, which were wrapped in a blue sweatsuit. Young motioned to the man who had been waiting, indicating that the man should follow him into an alley. Poston did not leave the scene of the transaction, but remained in the truck. Id. at 153, 165. As Young entered the alley, Poston drove up to the next corner, out of sight of the alley, and stopped. Id. at 17, 153. Poston then drove around the block. Id. at 17, 154-55.

As the deal was being consummated, police officers charged into the alley, and Young and the would-be buyer fled. Young discarded the two bottles, which were later determined to contain PCP with a retail value of approximately $96,000. Id. at 69, 91, 123, 314. Young and the buyer eluded capture. 1 Poston, however, had returned in his truck to a corner near the alley, and was arrested. Id. at 17, 155, 166, 178, 202.

Poston claims that his conviction must be reversed because there was insufficient evidence to support a finding that he aided and abetted the possession of PCP with intent to distribute. He argues that the uncontroverted evidence indicates that Young obtained possession of the PCP before Poston became involved. He further asserts that no evidence adduced at trial suggested that he ever came into actual or constructive possession of the PCP. While conceding that he knew that Young intended to distribute PCP, App. Br. at 19-20, Poston contends that his involvement was limited merely to giving Young a ride to the site of the attempted transaction. He therefore asserts that, as a matter of law, his conviction for aiding and abetting Young's possession (as opposed to distribution ) of the PCP with intent to distribute cannot stand. 2

As this court has noted, the aiding and abetting statute, 18 U.S.C. Sec. 2, "has broad implications and is one of the most important in the United States Criminal Code." United States v. Raper, 676 F.2d 841, 848 (D.C.Cir.1982). 3 The statute codifies the deeply rooted common-law rule that those who intentionally assist a guilty principal may themselves be held liable as principals. Although possession is generally a passive offense, "nothing about drug-possession offenses is so distinctive as to remove them from the ambit of aiding-and-abetting doctrine." United States v. Staten, 581 F.2d 878, 886 (D.C.Cir.1978) (footnote omitted). In this circuit, the elements of aiding and abetting are: "(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of the offense." Raper, 676 F.2d at 849 (citations omitted). Poston does not dispute that in his case, the prosecution established the first three elements; he concedes his knowledge, his intent, and the fact that the underlying substantive offense was committed. App. Br. at 19-20. Instead, his principal contention is that his acts did not in any way assist or encourage Young's possession of PCP with intent to distribute. The critical inquiry for this court is whether the prosecution presented sufficient evidence at trial for a jury reasonably to find that Poston " 'in some sort associate[d] himself with the venture, that he participate[d] in it as in something that he wishe[d] to bring about, that he [sought] by his action to make it succeed.' " Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (L. Hand, J.)).

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This court's role in assessing a sufficiency of the evidence claim on appeal is sharply circumscribed. We are not a second jury weighing the evidence anew and deciding whether or not we would vote to convict the defendant. Instead, our review is limited to determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) ("It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it."). 4

Poston invites us to constrict the scope of the aiding and abetting statute, as applied to possession offenses, by limiting liability to certain factual scenarios. First, Poston contends that, as a matter of law, he could not have aided or abetted Young's possession with intent to distribute because Young "purchased the PCP from a third party prior to requesting a ride from Appellant, and ... Appellant played no part in the co-defendant's acquisition of the drug." App. Br. at 20. Under this view, a possession offense can be aided or abetted only where the aider assists the principal in obtaining unlawful possession in the first instance. We reject this mechanical and cramped interpretation of 18 U.S.C. Sec. 2. It is well-established that " 'possession with intent to distribute is a continuing offense....' " United States v. Baskin, 886 F.2d 383, 388 (D.C.Cir.1989) (quoting United States v. Stitzer, 785 F.2d 1506, 1519 (11th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986)). Numerous decisions have upheld the convictions of persons, such as lookouts or bodyguards, who have aided or abetted the retention of possession. See, e.g., United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir.1990) ("[A] reasonable jury could have concluded that Munoz aided and abetted the crime of possession of cocaine with intent to distribute [by] providing surveillance and security for the principal participants of the drug transaction."); United States v. Sandini, 888 F.2d 300, 311 (3d Cir.1989) (bodyguard liable for aiding and abetting possession of cocaine with intent to distribute).

Poston next argues that, where a defendant did not assist a principal in obtaining possession of a substance, the defendant may be held liable for aiding and abetting possession only if the defendant himself obtained actual or constructive possession of the substance. App. Br. at 22-23. For this proposition, Poston relies on United States v. Jackson, 526 F.2d 1236 (5th Cir.1976). We do not read Jackson to impose such requirements. In that case, defendant Jackson merely introduced one distributor already in possession of unlawful narcotics to another distributor. The court...

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