U.S. v. Lancaster, 91-3045

• Decision Date: 30 June 1992
• Docket Number: No. 91-3045,91-3045
• Citation: 968 F.2d 1250,296 U.S.App. D.C. 379
• Parties: , 296 U.S.App.D.C. 379 UNITED STATES of America, Appellee, v. Randolph LANCASTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1250

968 F.2d 1250

116 A.L.R.Fed. 749, 296 U.S.App.D.C. 379

UNITED STATES of America, Appellee, v. Randolph LANCASTER, Appellant.

No. 91-3045.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 13, 1992.

Decided June 30, 1992.

Robert L. Tucker, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, was on the brief, for appellant.

Robert A. De La Cruz, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. and John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before D.H. GINSBURG, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Randolph Lancaster Sr. was convicted by a jury on one count of aiding and abetting the distribution of cocaine base (crack) and five counts of maintaining a "crack house," for which he was sentenced to 51 months' imprisonment and three years' supervised release. Lancaster appeals both the crack house convictions and his sentence. For the reasons set out below, we affirm Lancaster's convictions but remand for new sentencing because, in calculating Lancaster's combined offense level, the district court erroneously aggregated drug quantities under section 1B1.3(a)(2) of the United States Sentencing Guidelines (Guidelines).

In deciding this appeal, we must view the evidence in the light most favorable to the government, allowing it the benefit of all reasonable inferences that may be drawn from the evidence and permitting the jury to determine the weight and credibility of the evidence. United States v. Butler, 924 F.2d 1124, 1126 (D.C.Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991). So viewed, the evidence reveals the following material facts.

Up until 1988 Lancaster was the owner of a house on Marion Street, N.W., in the District of Columbia. Between June and December of that year the house was repeatedly searched by agents from various law enforcement agencies who on each occasion discovered large groups of individuals on the premises along with quantities of drugs and drug paraphernalia. As a result, the house was ultimately seized by the government. A summary of the circumstances leading up to and surrounding that seizure follows.

On June 15, 1988, an undercover investigator for the Metropolitan Police Department, acting as part of an arrest team, approached Lancaster's house to make a "back-up" purchase of narcotics before executing a search warrant for the house. The investigator was greeted at the door by Lancaster who led him upstairs and introduced him to a woman there. After Lancaster assured the woman the investigator was "okay," she sold him a small chunk of crack for $40. The investigator then left with the crack and rejoined his team. When the substance field-tested positive for cocaine, the team proceeded to execute the warrant and search the house. They discovered twenty-two people inside and seized an undisclosed quantity of cocaine, 190 milligrams of marijuana, glass smoking pipes and $176 in cash.

On September 1, 1988, around 7:30 or 8:00 p.m., Lancaster's house was again searched pursuant to a warrant, this time by agents of the Bureau of Alcohol, Tobacco and Firearms and the United States Park Police. Inside the house, the agents found 20 individuals, including Lancaster, and seized 1.159 grams of crack, 2.745 grams of cocaine powder, a mirror containing cocaine residue, razor blades and glass smoking pipes. A woman present at the time later testified that she saw crack being sold in the house that day, that a number of people regularly sold drugs there, and that "[s]omebody could come to there and ask for coke any time of the night." Transcript of Jury Trial (Trial Tr.) I-97.

Lancaster's house was again searched the evening of September 16, 1988. This time, agents from the Drug Enforcement Agency found nineteen or twenty people on the premises along with 171 milligrams of crack, fifteen or sixteen smoking pipes, a burning butane lighting device and $245 in cash.

Because of the repeated drug activity, a seizure warrant was issued for the house and on October 11, 1988, officers of the Metropolitan Police Department and the United States Marshals Service visited the house to execute the warrant. On entering, they discovered about twenty people inside, including Lancaster, and recovered 1.664 grams of crack. They then served the seizure warrant on Lancaster and directed him to gather his belongings and vacate the house. In addition, a carpenter was summoned to change the locks and board the house and signs were posted at the front and rear identifying the house as seized property and prohibiting entry.

On December 1, 1988, officers from the Metropolitan Police Department and the United States Marshals Service again visited the house, responding to reports of continued drug use there. When they arrived, they saw Lancaster leaving through a basement entrance from which the boarding had been removed. Inside, the officers discovered nine or ten people and four glass pipes containing cocaine residue.

Lancaster was subsequently indicted on one count of aiding and abetting the distribution of crack in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2, based on the back-up purchase of cocaine on June 15, 1988, (count 2) and five counts of maintaining his house for the consumption or distribution of drugs in violation of 21 U.S.C. § 856, based on the five searches of his house (counts 1, 3-6). On July 14, 1989, a jury convicted Lancaster on all six counts. On February 6, 1991, the district court sentenced Lancaster to sentences of twenty-seven months on counts 1, 3, 4, 5 and 6 and fifty-one months ¹ on count 2, to run concurrently with each other and to be followed by concurrent three-year terms of supervised release. On appeal, Lancaster challenges both his crack house convictions and his sentence on the distribution charge. We address the two challenges separately.

I. The Convictions

First, Lancaster appeals his convictions on counts 1, 3, 4, 5 and 6, asserting four grounds for reversal: (1) 21 U.S.C. § 856 is unconstitutionally vague; (2) the trial court incorrectly instructed the jury on the elements of a section 856 violation; (3) the court improperly admitted testimony concerning crack houses; and (4) the evidence was insufficient to support the conviction on count 6. We find none of these grounds persuasive.

Lancaster first asserts that 21 U.S.C. § 856, the crack house statute, is void for vagueness. Subsection (a) of that statute provides:

(a) Except as authorized by this title, it shall be unlawful to--

(1) knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance; [or]

(2) manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

21 U.S.C. § 856. ² Lancaster contends subsection (a)(1) of the statute is unconstitutionally vague because it does not give fair notice of the conduct it prohibits. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972) (criminal statute is void for vagueness if "it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' ") (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954)). Specifically, Lancaster argues that the statutory language is ambiguous because it can be construed to prohibit simple possession and personal consumption of drugs in one's residence, although it does not give fair notice that it does, and that it may have been so interpreted by the jury that convicted him. We find no such ambiguity in the statutory language.

Section 856(a)(1) makes it unlawful only to "open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance." The "casual" drug user does not run afoul of this prohibition because he does not maintain his house for the purpose of using drugs but rather for the purpose of residence, the consumption of drugs therein being merely incidental to that purpose. Thus, subsection (a)(1) cannot reasonably be construed, as Lancaster contends, to criminalize simple consumption of drugs in one's home. Even were such a construction possible, however, it would not avail Lancaster whose conduct went far beyond personal consumption. The statute certainly furnishes fair notice that opening one's house to the kind of wholesale drug use proven at trial is proscribed. Thus, the statute is not vague as applied to Lancaster's conduct so as to warrant reversal of his convictions. See United States v. National Dairy Prods. Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963) (court must consider vagueness attack solely in relation to whether statute sufficiently warns defendant that his particular conduct is prohibited thereunder); see also United States v. Thomas, 864 F.2d 188, 196-97 (D.C.Cir.1988) (rejecting vagueness challenge to regulation that was not vague as applied to defendants-appellants).

Next, Lancaster asserts the court improperly instructed the jury regarding the requirements of section 856(a), commingling the elements of subsections 856(a)(1) and 856(a)(2). We perceive no reversible error in the challenged instruction.

Because Lancaster failed to object to the instruction at trial we may reverse only if it constitutes plain error affecting a substantial right so that a miscarriage of justice would otherwise result. United States v. Zabalaga, 834 F.2d 1062, 1066 (D.C.Cir.1987). That is not the case here. The jury...