U.S. v. Williams, 91-1341

Decision Date01 April 1992
Docket NumberNo. 91-1341,91-1341
Citation957 F.2d 1238
Parties35 Fed. R. Evid. Serv. 494 UNITED STATES of America, Plaintiff-Appellee, v. Frank WILLIAMS, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Peter Fleury, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Ft. Worth, Tex., for defendant-appellant.

Frank Able, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, KING, and DEMOSS, Circuit Judges.

THORNBERRY, Circuit Judge:

The defendant appeals his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Finding the district court's errors to be harmless, we affirm the conviction.

I. Background

On October 31, 1990, DEA Task Force Officer Hughes was in the Dallas-Fort Worth airport routinely watching passengers deplane from an American Airlines flight arriving from Los Angeles. Officer Hughes noticed an individual, later identified as the defendant, Frank Williams, walk slowly down the jetway. Officer Hughes later testified that Williams appeared to be nervous and was looking over his shoulder as he walked. Williams approached the American Airlines service attendant and asked from which gate the flight to Baton Rouge was departing. Officer Hughes, believing that Williams was exhibiting suspicious behavior, approached Williams, identified himself as a police officer, and asked to see Williams's ticket. Williams took his ticket out of the airline ticket folder and handed it to Officer Hughes. Officer Hughes testified that it was unusual for Williams to take the ticket out of the folder, as most people he stops merely hand him the entire folder. He also testified that Williams's hand was shaking as he handed him the ticket. The ticket had been purchased with cash that day and was a one-way ticket from Los Angeles to Baton Rouge, with a connecting flight in Dallas. The passenger name on the ticket was Frank Williams. Officer Hughes then asked to see Williams's ticket folder, and Williams handed him the folder, which had three baggage claim tickets stapled to the inside cover. After giving Williams his ticket and ticket folder back, Officer Hughes asked Williams for some identification. Williams showed him a Louisiana driver's license in the name of Frank Williams, Jr. with a New Orleans address. Officer Hughes then asked Williams whether he lived in Los Angeles or Baton Rouge, and Williams replied that he lived in Baton Rouge. Officer Hughes inquired as to the purpose of Williams's trip to Los Angeles and Williams stated that he had been visiting friends for a week or so. Officer Hughes returned Williams's driver's license and thanked him for his courtesy.

Officer Hughes left the terminal and together with his trained narcotic canine, Wally, drove to the area of the tarmac where the baggage handlers were loading luggage onto the Baton Rouge flight. Officer Hughes released Wally near three baggage carts that contained 60 to 80 pieces of luggage, and instructed Wally to "fetch the dope." (R., vol. 2 at 155). Wally began biting and scratching an unlocked suitcase that had a luggage identification tag with the name Frank Williams on it. Officer Hughes put that suitcase and two others with Williams's name on them in his car and drove back to the terminal. He took the suitcase that Wally alerted to into the terminal and to the gate at which Williams was waiting for the Baton Rouge flight. Officer Hughes asked Williams if the suitcase belonged to him, and Williams responded affirmatively. Officers Hughes testified that Williams's "chest began heaving up and down" when he asked him whether the luggage belonged to him. (R., vol. 2 at 123). Officer Hughes then asked Williams whether he could search the suitcase, and Williams consented.

Inside the unlocked suitcase, Officer Hughes found a pair of khaki pants with lumps in the legs and knots tied at the bottom of the legs. Officer Hughes asked Williams what the lumps were, and Williams replied that he did not know. From inside the pant legs, Officer Hughes retrieved two bundles that contained a white powdery substance, later identified as 2,004 grams of 92% pure cocaine. Officer Hughes informed Williams that he was under arrest. Williams was taken to the task force office where he was searched by another officer, Officer Munday. Officer Munday testified that he found a marijuana cigarette in Williams's wallet.

Williams was indicted and convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Williams appeals his conviction on the basis that the district court improperly admitted, as evidence of substantive guilt, Officer Hughes's testimony that Williams fit a drug courier profile, and that the district court improperly admitted evidence of the marijuana cigarette.

II. Analysis

"We review a trial judge's admission of evidence under an abuse of discretion standard." United States v. Moye, 951 F.2d 59, 61 (5th Cir.1992) (citing United States v. Williams, 900 F.2d 823 (5th Cir.1990)). Although we find that the district court erred in admitting testimony regarding the drug profile and the marijuana cigarette, the errors were harmless in light of the other overwhelming evidence of Williams's guilt. See United States v. Merida, 765 F.2d 1205, 1222 (5th Cir.1985).

A. The Drug Courier Profile

The Government concedes that drug courier profiles are not admissible as substantive evidence of guilt. (Appellee's Br. at 12) (citing United States v. Beltran-Rios, 878 F.2d 1208, 1211 (9th Cir.1989); United States v. Hernandez-Cuartas, 717 F.2d 552, (11th Cir.1983); United States v. Quigley, 890 F.2d 1019 (8th Cir.1989) cert. denied, 493 U.S. 1091, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990)). The Government maintains that the drug courier profile testimony in this case was not admitted as substantive evidence of Williams's guilt, but as background information. The record belies the government's assertion, however, and demonstrates that the district court admitted the testimony as evidence of Williams's guilt.

The plain language of the record confirms Williams's contention that the drug courier profile was admitted to prove his guilt. First, the district court expressly stated that it admitted the testimony for its probative value, even after the defendant's attorney objected to it on the grounds of relevance and unfair prejudice. (R., vol. 2 at 119-20). Second, in an unrelated bench conference, the defendant's attorney stated that the court "found it relevant, to whether or not a person is guilty of possession with intent to deliver cocaine, whether or not a person fits a drug courier profile," and the court agreed with this statement. (R., vol. 2 at 151-52). Third, the Government argued the profile as substantive evidence of Williams's guilt in its closing argument. After discussing each element of the profile that Williams matched, the Government attorney stated that the criteria of the profile

by themselves do not add up to anything, but once that white, powdery substance was found and Officer Munday testified that he performed a field test on it, the drug courier profile, it proved to be not inaccurate. Nobody told you that it was a science. But it shows you one thing, that the defendant is guilty of the offense.

(R., vol. 3 at 28) (emphasis added).

In addition to the plain language of the record, the case law demonstrates that the profile evidence was admitted as substantive evidence of guilt. During Officer Hughes's testimony, he described the profile itself and then proceeded to list the characteristics of the profile that Williams displayed. Other circuits have held that testimony expressly comparing an individual defendant's actions to a drug profile constitutes substantive evidence of guilt. See United States v. Quigley, 890 F.2d 1019 (8th Cir.1989) ("This point by point examination of profile characteristics with specific reference to [the defendant] constitutes use of the profile not as background to explain or justify an investigative stop, but as substantive evidence that [the defendant] fits the profile and, therefore, must have intended to distribute the cocaine in his possession.") cert. denied, 493 U.S. 1091, 110 S.Ct. 1163, 107 L.Ed.2d 1066 (1990); United States v. Lui, 941 F.2d 844, 847 (9th Cir.1991) ("As in Quigley, here [the DEA agent] tied [the defendant's] actions to a drug courier profile for the purpose of proving [the defendant's] guilt."). Furthermore, the district court's failure to instruct the jury to consider the profile testimony only as background information supports the conclusion that the testimony was admitted as substantive evidence of Williams's guilt. See United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir.) (finding no plain error when the district judge twice cautioned the jury to consider the profile testimony only as background material), cert. denied, --- U.S. ----, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990).

In light of (1) the manner in which the testimony was admitted; (2) the district court's agreement with Mr. Fleury's statement that the court admitted the profile evidence because it was relevant to Williams's guilt; (3) the Government's statements in closing argument that encouraged the jury to accept the profile as evidence of Williams's guilt; (4) the court's allowing the witness to compare Williams's conduct with the profile characteristics; and (5) the court's failure to limit the jury's use of the profile evidence, we cannot accept the Government's contention that the profile evidence was admitted as background information. The testimony regarding the drug courier profile was admitted as substantive evidence of Williams's guilt. This use of the drug profile was, as the government concedes, error. Quigley, 890 F.2d at 1024. Drug courier profiles have long...

To continue reading

Request your trial
80 cases
  • U.S. v. Robinson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 2, 1992
    ...not pertinent because the evidence presented in this case is direct evidence. The exemplar cases of the dissent, United States v. Williams, 957 F.2d 1238, 1240 (5th Cir.1992) and United States v. Simpson, 910 F.2d 154, 155 (4th Cir.1990), involve testimony concerning suspicious behavior in ......
  • United States v. El-Mezain, 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 7, 2011
    ...at trial; if we are "left in grave doubt, the conviction cannot stand." Kotteakos, 328 U.S. at 765; see also United States v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992) ("[W]e must view the error, not in isolation, but in relation to the entire proceedings.") (internal quotation marks an......
  • United States v. El-Mezain, 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 7, 2011
    ...at trial; if we are "left in grave doubt, the conviction cannot stand." Kotteakos, 328 U.S. at 765; see also United States v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992) ("[W]e must view the error, not in isolation, but in relation to the entire proceedings.") (internal quotation marks an......
  • United States v. El-Mezain, 09-10560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 7, 2011
    ...at trial; if we are "left in grave doubt, the conviction cannot stand." Kotteakos, 328 U.S. at 765; see also United States v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992) ("[W]e must view the error, not in isolation, but in relation to the entire proceedings.") (internal quotation marks an......
  • Request a trial to view additional results
6 books & journal articles
  • Other evidence rules
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • July 31, 2018
    ...injuries were not the result of an accident, but rather the child su൵ered from battered child syndrome. United States v. Williams , 957 F.2d 1238 (5th Cir. 1992). Trial court erred when it admitted testimony of a drug enforce-ment agent that a defendant’s actions and appearance it a proile ......
  • Other Evidence Rules
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2014 Contents
    • July 31, 2014
    ...injuries were not the result of an accident, but rather the child suffered from battered child syndrome. United States v. Williams , 957 F.2d 1238 (5th Cir. 1992). Trial court erred when it admitted testimony of a drug enforcement agent that a defendant’s actions and appearance fit a profil......
  • Other Evidence Rules
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2015 Contents
    • July 31, 2015
    ...injuries were not the result of an accident, but rather the child suffered from battered child syndrome. United States v. Williams , 957 F.2d 1238 (5th Cir. 1992). Trial court erred when it admitted testimony of a drug enforcement agent that a defendant’s actions and appearance fit a profil......
  • Other Evidence Rules
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016
    ...injuries were not the result of an accident, but rather the child suffered from battered child syndrome. United States v. Williams , 957 F.2d 1238 (5th Cir. 1992). Trial court erred when it admitted testimony of a drug enforcement agent that a defendant’s actions and appearance fit a profil......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT