U.S. v. Levy

• Decision Date: 25 May 1990
• Docket Number: Nos. 89-5980,89-6099,s. 89-5980
• Citation: 904 F.2d 1026
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald LEVY (89-5980) and Calvin Black (89-6099), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1026

904 F.2d 1026

UNITED STATES of America, Plaintiff-Appellee, v. Gerald LEVY (89-5980) and Calvin Black (89-6099),

Defendants-Appellants.

Nos. 89-5980, 89-6099.

United States Court of Appeals, Sixth Circuit.

Argued April 10, 1990.

Decided May 25, 1990.

Rehearing Denied in No. 89-6099

June 25, 1990.

W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty., John Fowlkes, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Memphis, Tenn., for U.S.

April R. Ferguson, Asst. Federal Public Defender (argued), Memphis, Tenn., for Gerald Levy and Calvin Black.

Before KEITH and MILBURN, Circuit Judges; and WOODS, District Judge ^*.

MILBURN, Circuit Judge.

Defendants-appellants Gerald Levy and Calvin Black appeal their convictions and sentences for aiding and abetting one another in the possession with intent to distribute approximately eighteen grams of cocaine base (crack), in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. For the reasons that follow, we affirm.

I.

On January 25, 1989, officers Mark Dunbar and Jackie Setliff of the Metro Narcotics Unit of the Shelby County Sheriff's Department in Memphis, Tennessee, received a tip from an informant. They then drove to an area of Memphis near Ogden Street and looked for a new, four-door yellow Cadillac occupied by three black males. They were joined in the search by Roger Swatzyna, another officer in the Metro Narcotics Unit.

Soon after the three officers joined up, they saw a new, four-door yellow Cadillac on Ogden Street that was occupied by three black males. The officers surrounded the car as its driver was parking it and approached it with their guns drawn.

Ronald Strickland, a juvenile, was the front-seat passenger. He testified that he opened his door and got out of the car before he saw the officers. He then froze near the front tire on the passenger's side of the car when he saw the officers had their guns drawn. When Strickland opened his door, the interior lights in the car were illuminated.

Officer Swatzyna testified that as he approached the front of the car, he saw the occupant of the back seat make a throwing motion toward the open front passenger's door. Defendant Levy was the occupant of the back seat. Officer Dunbar testified that as he approached the rear of the car, he saw the driver make a throwing motion toward the floor of the car. Defendant Black was the driver.

The officers found a clear plastic bag on the curb immediately outside the open passenger door. The bag contained seventy-four individual nuggets, or "rocks," of crack cocaine. The officers also found ten rocks of crack cocaine on the floor of the car, near or on the driver's side. The seventy-four rocks weighed a total of 15.4 grams, while the ten rocks weighed 2.5 grams.

Levy and Black were indicted on one count of aiding and abetting in the possession with intent to distribute cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. They were tried before a jury on May 16 and 17, 1989, and each was found guilty.

Prior to sentencing, Levy filed a motion challenging 21 U.S.C. Sec. 841(b)(1)(B)(iii), alleging that the phrase "cocaine base" was unconstitutionally vague and that the statute authorized sentences that were unconstitutionally disproportionate to the offense it punished. At his sentencing hearing on July 13, 1989, Levy moved pursuant to section 5K1.1 of the Sentencing Guidelines for a downward departure based upon his cooperation with the police. He also made an offer of proof to support his motion.

The district court denied Levy's motions alleging constitutional infirmities and his motion for a downward departure. The district court noted that section 5K1.1 is triggered only "upon motion of the government," and the government had not moved for a downward departure.

The district court sentenced Levy to 63 months imprisonment and Black to 120 months imprisonment. In this appeal, Black and Levy raise the following issues: (1) whether the district court erred in denying defendants' motions for a mistrial based upon alleged hearsay; (2) whether the district court erred in admitting the officers' testimony regarding their pursuit of the defendants; (3) whether the district court erred in admitting evidence identifying the matter taken from the Cadillac as cocaine; (4) whether the district court erred in refusing to instruct the jury that it could find the defendants guilty of the lesser-included-offense of simple possession of cocaine; and (5) whether the district court erred in allowing the government to present evidence to rebut the testimony of Ronald Strickland.

In addition, Levy raises the following issues: (1) whether the district court erred in denying Levy's motion for judgment of acquittal; (2) whether the district court erred in denying Levy's motion to declare 21 U.S.C. Sec. 841(b)(1)(B)(iii) void for vagueness and for disproportionate sentencing; (3) whether the district court erred in refusing Levy's offer of proof to support his motion for a downward departure; and (4) whether the Sentencing Guidelines violate Levy's Eighth and Fourteenth Amendments rights by making no provision for defendants' motions for downward departures based upon substantial assistance/cooperation with police.

II.

Alleged "evidential errors of a trial court are tested on appeal" under an abuse of discretion standard. United States v. Rios, 842 F.2d 868, 872 (6th Cir.1988) (per curiam) (quoting United States v. Mahar, 801 F.2d 1477, 1495 (6th Cir.1986)). However, a district court's conclusions of law, such as whether proffered evidence constitutes hearsay within the meaning of the Federal Rules of Evidence, are reviewed de novo. See Whitney v Brown, 882 F.2d 1068, 1071 (6th Cir.1989). Where a party fails to make a timely objection, stating the specific grounds for his objection as required by Federal Rule of Evidence 103(a)(1), our review is limited to "plain error." Fed.R.Evid. 103(d).

This appeal also involves several issues regarding the district court's denial of defendant's motions for a mistrial. We review a district court's denial of a motion for a mistrial for abuse of discretion. See United States v. Atisha, 804 F.2d 920, 925-26 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

A.

Defendants moved for a mistrial based upon certain remarks the Assistant United States Attorney made in his opening statement. At the conclusion of the statement, and outside the presence of the jury, the defense attorneys argued that the prosecutor's remarks constituted hearsay. Both defense attorneys moved for a mistrial, but the district court denied their motions.

Hearsay is defined as testimony "offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). As the district court instructed the jury, lawyers' opening statements are not evidence. Thus, by definition, the prosecutor's remarks were not hearsay. Moreover, defendants did not make a contemporaneous objection, but waited until the conclusion of the prosecutor's remarks. Reviewed either for abuse of discretion or plain error, we find the district court's denial of defendants' motion for a mistrial was not erroneous.

B.

Officer Dunbar testified that as a result of a tip he received, he was looking for a new, four-door yellow Cadillac on Ogden Street when he encountered the defendants. The two other officers testified that Officer Dunbar told them that he had received a tip, and as a result of the tip, they were looking for a new, four-door yellow Cadillac on Ogden Street. At the conclusion of all the officers' testimony, defendants objected to the testimony about the tip as hearsay. The district court overruled their objections. We agree.

The officers' testimony was not offered to prove the truth of the informant's remarks, and none of the officers testified about the contents and details of the tip. Instead, the officers' testimony regarding the tip was offered to show what they were looking for, and why. Thus, by definition, the contested testimony was not hearsay. Additionally, neither defense attorney offered a contemporaneous objection to the alleged hearsay. Whether reviewed for abuse of discretion or plain error, we find the district court's decision to overrule defendants' objections to the officers' testimony was not erroneous.

C.

The officers put the plastic bag of rocks of crack cocaine in one evidence bag and the loose rocks in another. Officer Setliff testified that he took a single rock from one of the evidence bags--he did not remember which one--and sent it to a toxicology lab, where it was identified as cocaine.

The defense attorneys objected to admission of the evidence on grounds of a "broken chain of custody." They argued that two separate "units" of cocaine were seized in the search--the bag on the curb and the loose rocks on the car floor--and because Officer Setliff could not remember which unit provided a sample that was identified as cocaine, the government could not show which unit was cocaine. The district court denied the objections on the grounds that the sample that was tested was a representative sample taken from all the seized cocaine and defendants' objections were based upon their interpretation of the evidence.

Absent a clear showing of abuse of discretion, challenges to the chain of custody go to the weight of evidence, not its admissibility. See United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986); United States v. Lott, 854 F.2d 244, 250 (7th Cir.1988); United States v. Shackleford, 738 F.2d 776, 785 (7th Cir.1984). Defendants do not attack the chain of custody in the traditional sense, however, as they do not dispute that the cocaine entered into evidence has been in the officers' custody from the time it was seized. Rather, defendants' objections are anchored in their defense theory that...