U.S. Lloyd

• Decision Date: 22 February 2008
• Docket Number: No. 05-3007.,05-3007.
• Citation: 515 F.3d 1297
• Parties: UNITED STATES of America, Appellee v. Bernardo LLOYD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

515 F.3d 1297

UNITED STATES of America, Appellee v. Bernardo LLOYD, Appellant.

No. 05-3007.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2007.

Decided February 22, 2008.

Appeal from the United States District Court for the District of Columbia (No. 03cr00457-01).

Neil H. Jafee, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief.

Sarah T. Chasson, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, and Elizabeth Trosman and Roy W. McLeese III, Assistant United States Attorneys, were on brief.

Before: HENDERSON, GARLAND and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Appellant Bernardo Lloyd was convicted of one count each of possessing with intent to distribute five grams or more of cocaine base, possessing with intent to distribute cannabis, assault with a dangerous weapon and possessing a firearm during the commission of a crime of violence. Lloyd contends that all of his convictions should be reversed because the district judge delivered a coercive anti-deadlock charge and communicated with the jurors during their deliberations (including giving the challenged deadlock instruction) while Lloyd was absent from the courtroom. In addition, Lloyd challenges his conviction of possessing with intent to distribute more than five grams of cocaine base on the ground that the evidence was insufficient to establish that the substance he possessed was vaporizable cocaine base, known as "crack," rather than some other form of cocaine base. We affirm all of Lloyd's convictions because we conclude that the deadlock charge was not coercive, that conducting the proceedings in Lloyd's absence caused him no prejudice and that the evidence was sufficient to establish the seized substance was "crack" cocaine.

I.

Viewing the evidence in the light most favorable to the Government as we must, see United States v. Roy, 473 F.3d 1232 1233 (D.C.Cir.2007), we find the record establishes the following facts.

Around noon on May 17, 2003, while driving a green Ford Expedition with his young daughter as passenger, Lloyd came upon a commercial tow truck belonging to Nemr Ibrahim stopped in the 1600 block of Levis Street N.E. in Washington, D.C., with the driver-side door open and blocking Lloyd's passage. Lloyd honked at Ibrahim, who was securing a disabled car to the tow truck. The driver of the disabled car responded by closing the tow truck door and Lloyd pulled alongside the tow truck and began to curse Ibrahim. Ibrahim approached Lloyd's vehicle and an argument ensued until Lloyd retrieved a handgun from the console area of his vehicle, pointed it toward Ibrahim's face and threatened to shoot him in the head. Ibrahim then stepped away from Lloyd's vehicle and Lloyd drove off. Ibrahim called the police and reported the incident, along with Lloyd's license plate number.

Later the same day, police officers stopped Lloyd driving a green Expedition, with his daughter and her mother as passengers. The police explained that a "serious crime" had occurred in the Expedition and took the vehicle and its occupants to the Fifth District police station. Trial Tr. 231. Once there, the police impounded the vehicle but let Lloyd and his passengers depart. Afterward, Ibrahim was called in to inspect the vehicle and he identified it as the one in which Lloyd had drawn the gun on him. A few days later, Ibrahim identified Lloyd himself from a photo array.

Based on Ibrahim's identification, Metropolitan Police Department (MPD) Detective Dexter E. Martin obtained a search warrant for the Expedition. During the following vehicle search, he noticed the console cover between the front seats was loose. When he lifted it, he found a silver handgun and some ziplock bags containing "a white rock-like substance" and "a green weed substance," along with a scale, a knife and ski masks. Trial Tr. 151.

A grand jury indicted Lloyd on five counts: (1) unlawfully possessing with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); (2) unlawfully possessing with intent to distribute cannabis in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); (3) using, carrying and possessing a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(i); (4) assault with a dangerous weapon in violation of D.C.Code § 22-402; and (5) possessing a firearm during the commission of a crime of violence in violation of D.C.Code § 22-4504(b). Appellant's App. (App.) 12.

Lloyd's trial began on September 8, 2004. To establish the contents. of the seized ziplocks, the Government introduced a Drug Enforcement Agency (DEA) laboratory analysis, which identified the substances as 27.8 grams of 52% pure "[c]ocaine base" in eleven bags, 3.3 grams of 75% pure "[c]ocaine hydrochloride" in four bags and 32.3 grams of marijuana in twenty-five bags, App. 15, and which the parties stipulated was "true and accurate," Trial Tr. 162. In addition, MPD Sergeant John J. Brennan, who was qualified as an expert, testified on the distribution, packaging and use of crack cocaine in the District of Columbia and identified the white, rock-like substance in the ziplocks as "crack cocaine." Id. 194.

The jury began deliberating at 12:15 p.m. on September 9, 2004. Around 4:00 that afternoon, the jury sent a note to the judge, which note read:

The jury is having difficulty determining some of the evidence. We are hung on .Counts 1, 2, + 4. We are close but need some encouragement and instructions from the bench.

App. 16. It was dated "9-9-04" and signed by the jury foreman. The judge recalled the jurors and, at the foreman's request, instructed them further on "identification," that is, whether it was Lloyd who committed the crimes charged, and on the jurors' duty not to consider the nature of the crimes charged — for example, that they involved drugs and a gun. The judge then addressed the jury as follows:

[Y]ou indicate in your message that you are hung on counts one, two, and four. You are close but need some encouragement and instructions. And certainly I'm here to provide encouragement; whether the additional instructions — whether my elaboration on the instructions is useful or not, I'll leave to you to decide.

But I think it might be useful for you to hear this additional instruction called partial verdict.

You do not have to reach unanimous agreement on all of the charges before returning a verdict on some of them. If you have reached unanimous agreement on some of the charges, you may return a verdict on those charges and then continue deliberating on the others.

Trial Tr. 290. The jury then resumed deliberating.

A short time later, the jury sent the judge a second note and asked to speak with him without counsel present. In response, the judge assembled both counsel and stated as follows:

I want the record to reflect that the clerk has in his hands a copy of the note that was handed to me from the jury. The note, which I will place under seal until this case is completed, begins something to the effect of, if possible, we would like to meet you in the courtroom without counsel or the Defendant being present. And then it goes on to say something to the fact [sic] like we are hung, and then he begins to spell out exactly how they are split on which counts.

I literally averted my eyes when I realized what I was about to read, and did not read what the splits are. I don't know what the splits are on what counts, did not finish reading the note, will not read the rest of the note, and believe that what I need to do is to call the jury back here, tell them that we are placing that note under seal and that I'm not reading it, tell them that it's inappropriate, that I really ought to rub their nose in the instruction. I don't think I could have been plainer about what I told them about not revealing their split. And tell them that if they have a question for me — well, I will tell them, A, that I will not meet them in the absence of counsel, but that if there's anything in the rest of the note that I should know, I'll be happy to hear it, but that I cannot, will not know or hear anything about the way they're split. Any objection to what I've said so far?

Trial Tr. 293-94. He later re-emphasized that he had not read the actual numerical split: "[L]et the record be perfectly clear, I did not read, do not know what they told me, but the fact that they told me is of record, and the note will be under seal until we have a verdict or some other termination of this case."¹ Id. 295. Before the judge recalled the jury, Lloyd's counsel informed him: "Your Honor, for the record, Mr. Lloyd went downstairs and I'll waive his presence." Id.

The jury returned to the courtroom at 4:38 and the judge advised it as follows:

I called counsel in here pretty quickly after getting your last note, and Mr. Lloyd is downstairs getting a soft drink or something, and it's okay with me and it's okay with counsel if he not be here for this brief encounter. And it's going to be quite brief.

Members of the jury, we have a communication — what we have here is a failure of communication. I only read about the first two lines of the note that I was given from you, and then I literally closed it up and averted my eyes. Because the note says quite plainly how you're divided on issues, and I thought I made it pretty clear in the instruction that you are not to tell anybody how you're divided on anything until or unless we have a verdict.

Now, if you think we're just sharing information between the judges of the facts and judges of the jury, I'm afraid it doesn't work that way. We cannot — I cannot have a conference with you out of the presence of counsel. We just can't do that. I mean, it's got to be — the...