904 F.2d 52 (D.C. Cir. 1990), 88-3158, U.S. v. Gibbs

Docket Nº:88-3158, 88-3181 to 88-3183.
Citation:904 F.2d 52
Party Name:UNITED STATES of America v. Ronald GIBBS, Appellant. UNITED STATES of America v. Bruce JOHNSON, a/k/a Willie Ruff, Appellant. UNITED STATES of America v. Randy Ray WHITEHEAD, Appellant. UNITED STATES of America v. Harold A. BENNETT, Appellant.
Case Date:May 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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904 F.2d 52 (D.C. Cir. 1990)



Ronald GIBBS, Appellant.



Bruce JOHNSON, a/k/a Willie Ruff, Appellant.



Randy Ray WHITEHEAD, Appellant.



Harold A. BENNETT, Appellant.

Nos. 88-3158, 88-3181 to 88-3183.

United States Court of Appeals, District of Columbia Circuit.

May 29, 1990

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Argued March 1, 1990.

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Appeals from the United States District Court for the District of Columbia (Criminal Action Nos. 88-00081-03, 88-00081-01, 88-00081-02, & 88-00081-04).

Barbara R. Miller, Washington, D.C., appointed by this court, for appellant in No. 88-3183.

Daniel M. Schember, Washington, D.C., appointed by this court, for appellant in No. 88-3158.

Michael A. Levin, with whom Gregory C. Denaro was on the brief, for appellant in No. 88-3181.

Warren E. Gorman, Chevy Chase, Md., was on the brief, for appellant in No. 88-3182.

John W. Kern, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Washington, D.C., John R. Fisher, Norman C. Bay, were on the brief, for appellee in all cases.

Before WALD, Chief Judge, MIKVA and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge MIKVA.

HARRY T. EDWARDS, Circuit Judge:

Appellants, Harold Bennett, Ronald Gibbs, Bruce Johnson, and Randy Whitehead, were each found guilty of possession with intent to distribute five grams or more of crack cocaine, following their arrest during which officers seized 15.5 grams of crack cocaine, firearms, and ammunition. Appellants raise several issues on appeal, most notably that the evidence was insufficient to convict them and that the trial judge's refusal to instruct the jury on the lesser-included offense of mere possession was error. Because we find that the trial judge erred in refusing to give the lesser-included offense instruction, we reverse and remand as to all appellants.


    On the afternoon of February 17, 1988, three plain clothes officers in an unmarked police car began to follow a rental car that was being driven by Gibbs, and in which Bennett, Johnson, Whitehead and another man were riding as passengers. After apparently discovering that they were being followed by the police, Gibbs began driving erratically, as the other appellants looked back at the pursuing car and then sunk down in their seats. Gibbs first swerved in and out of one parking lot, then pulled into a second parking lot, and finally stopped abruptly beside a trash dumpster. Johnson exited from the front of the car and threw out a loaded automatic pistol. After exiting from the back seat of the car, Whitehead tossed a loaded pistol (wrapped in a shirt) back into the car, then struggled with the police as they arrested him.

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    After all of the occupants of the car were in custody, a search revealed a little over ten grams of crack under the seats of the car; this crack was hidden in false bottoms of two Morton salt containers. Ten of twelve rocks of crack in one of the Morton salt containers were wrapped. A bag with another 4.686 grams of crack was apparently found exposed on the car floor, between the front passenger seat and the door frame. The officers also recovered a loaded rifle and ammunition in the trunk of the car, and bullets for a .38 caliber weapon were found in the glove compartment. Johnson was carrying $576 in small bills in his pocket. In total, the police seized approximately 15.5 grams of crack cocaine, $576 in cash, and several firearms with ammunition. No use or packaging paraphernalia was discovered.

    At trial, the prosecution introduced evidence that Johnson had previously been arrested for disorderly conduct, while carrying a large sum of cash and driving a vehicle not rented in his own name. The Government also introduced evidence that Whitehead had once sold cocaine to a police officer.

    At the conclusion of trial, defense counsel for all four appellants sought to have the jury instructed on the lesser-included offense of simple possession, in addition to the greater offense of possession with intent to distribute. This request was denied by the trial judge. Later, during their deliberations, the jury sent out a written question asking the trial judge whether the defendants could be acquitted on the charge of possession with intent to distribute, but convicted on the weapons charges. Apparently, the jury was concerned about the intent to distribute charge. The trial court instructed the jury, however, that they could not acquit the defendants of possession with intent to distribute, yet convict on carrying or using weapons in connection with an intent to distribute. Thus, there is some indication the jury believed that the defendants had illegal possession of weapons, and wanted to convict on weapons charges, but it appears they were not convinced that the defendants intended to distribute the drugs. But, in order to convict on the weapons charges, they also had to convict on the intent to distribute charge.

    The trial judge subsequently expressed some serious misgivings over his failure to give the lesser-included offense instruction:


    ... the more I think about it, I don't understand how it happened, except for one thing. It was not told to me--well, I guess--it was not conveyed to the jury during the trial--or was it--what is the street value of the cocaine found in the car?


    At about $100 a gram, $1500.


    What I didn't give enough thought to I think is a lesser included charge. I am not sure it is an error.

    Each of the four appellants was convicted of possession with intent to distribute five grams or more of cocaine (21 U.S.C. Sec. 841). The driver, the front passenger, and one rear passenger--Gibbs, Johnson, and Whitehead, respectively--were also convicted on the charge of using or carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. Sec. 924(c)(1)). Additionally, Johnson was convicted for possession of an unregistered machine gun (26 U.S.C. Sec. 5861(d)).


    Appellants, separately and collectively, raise several bases for reversal. We review each of these in turn.

    1. Opinion Evidence on Whitehead's Prior Drug Sale

      As a preliminary matter, Whitehead objects that opinion testimony by an officer regarding the nature of the substance previously sold by Whitehead was inadmissible. It would indeed have been desirable for the Government to have introduced more reliable evidence than an officer's assertion that the substance sold was cocaine. However, the jury's attention was called to the fact that the officer was not a

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      licensed chemist and that Whitehead was not yet convicted of distributing narcotics on that earlier occasion. It was also reasonable to infer from the properly admitted testimony--of an officer "undercover ... to purchase illegal drugs" who had purchased some substance from Whitehead--that Whitehead had sold illegal drugs on a prior occasion. Accordingly, the admission of the officer's opinion that the substance sold was cocaine is not reversible error.

    2. Bennett's Motion to Sever

      Appellant Bennett, the back seat passenger who was in no way connected to possession of any of the guns, asserts that his trial should have been severed from that of his co-defendants. This court, however, has repeatedly declared that joint trials may be preferred, given the heavy and increasing criminal case load in our trial courts. See United States v. Manner, 887 F.2d 317, 324 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990). Severance is due only if the evidence against one's co-defendants is "far more damaging" than the evidence facing the accused, making it unreasonable to expect a jury to compartmentalize the evidence. Id.; see also United States v. Sampol, 636 F.2d 621, 647 (D.C.Cir.1980). Where virtually all the evidence adduced at trial concerns a common course of conduct during one transaction or event, as is the case here, severance need not be granted. That two incidents concerning prior crimes of Bennett's co-defendants were raised at trial does not require severance where the common chord of evidence bears upon the guilt or innocence of all four defendants.

    3. Sufficiency of the Evidence

      Each of the four appellants requests reversal on the grounds that the Government introduced insufficient evidence to support a conviction for possession with intent to distribute. Because of the respect owed by appellate courts to jury verdicts, we review the evidence and all legitimate inferences in the light most favorable to the Government. United States v. Hernandez, 780 F.2d 113, 120 (D.C.Cir.1986); United States v. Pardo, 636 F.2d 535, 547 (D.C.Cir.1980). 1

      We have regularly and definitely stated that, while proximity to drugs is not enough to prove possession, evidence of some other factor--including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise--coupled with proximity may surpass the minimum threshold of evidence needed to put the question of guilt to a jury. See, e.g., United States v. Dunn, 846 F.2d 761, 763-64 (D.C.Cir.1988) (" '[P]resence, proximity or association may establish a prima facie case of drug possession when colored by evidence linking the accused to an ongoing criminal operation of which that possession is a part'.... [The defendant's] connection to the gun [on a nearby couch] suggests he exercised control over the drugs in the house." (citation omitted)); Hernandez, 780 F.2d at 117 (proximity with a gesture, motive or purpose in using the item, or proof that the...

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