U.S. v. Applewhite

• Decision Date: 19 December 1995
• Docket Number: 94-3058,Nos. 94-3028,s. 94-3028
• Citation: 72 F.3d 140,315 U.S.App.D.C. 222
• Parties: , 105 Ed. Law Rep. 877 UNITED STATES of America, Appellee, v. Robert C. APPLEWHITE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 140

72 F.3d 140

315 U.S.App.D.C. 222, 105 Ed. Law Rep. 877

UNITED STATES of America, Appellee, v. Robert C. APPLEWHITE, Appellant.

Nos. 94-3028, 94-3058.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 5, 1995.

Decided Dec. 19, 1995.

Order Vacating Conviction on Grant of Rehearing in No.

94-3058 Jan. 26, 1996.

Order Vacating Conviction on Grant of Rehearing in No.

94-3028 Feb. 13, 1996.

Appeals from the United States District Court for the District of Columbia (No. 92cr00495-01) (No. 92cr00495-02).

Benjamin B. Klubes, Washington, DC, argued the cause, for appellant Robert C. Applewhite. With him on the briefs were Barry Coburn, appointed by the court, and Roberto Iraola.

Marian Flynn, Washington, DC, appointed by the court, argued the cause and filed the brief, for appellant Ronald D. Branch.

Elizabeth H. Danello, Assistant United States Attorney, Washington, DC, argued the cause, for appellee. With her on the brief were Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Assistant United States Attorney.

Before: WILLIAMS, GINSBURG and RANDOLPH, Circuit Judges.

GINSBURG, Circuit Judge:

Robert C. Applewhite and Ronald D. Branch were convicted by a jury of possessing with intent to distribute (PWID) five grams or more of cocaine base, commonly known as crack, in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B)(iii). They were also convicted of PWID crack within 1,000 feet of a school, in violation of 21 U.S.C. Sec. 860(a), of using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c), and of other offenses not relevant to this appeal.

Between them the appellants raise six arguments on appeal. Both appellants contend that (1) the evidence is insufficient to establish that the distance between the apartment where they possessed the drugs and the nearest school is less than 1,000 feet; and in the alternative that (2) the prohibition of PWID within 1,000 feet of a school is beyond the authority of the Congress under the Commerce Clause of the Constitution of the United States, art. I, Sec. 8. See United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Applewhite alone argues that (3) the district court committed plain error in admitting expert testimony about drug trafficking because the testimony related to matters within the common experience of the jury. For his part, Branch contends that (4) the district court abused its discretion in denying his pretrial motion to sever his case from Applewhite's; (5) the cumulative effect of alleged misconduct by the prosecutor was to deny him a fair trial; and (6) the Government failed to produce sufficient evidence to sustain his firearm conviction under 18 U.S.C. Sec. 924(c).

Because the jury could not on this record reasonably have determined beyond a reasonable doubt that the PWID offense occurred within 1,000 feet of a school, we reverse the convictions on that charge; consequently, we need not and do not address the Lopez issue. In all other respects, we affirm the judgment of the district court.

I. Background

The Government adduced evidence at trial to prove that Applewhite and Branch were part of a drug trafficking "crew" that worked the 200 block of 58th Street in Northeast Washington, D.C. John T. Simmons, a crew member who pled guilty, and Cedric Butler, a former crew member who became a confidential police informant, testified for the prosecution. According to their testimony, Branch and Simmons processed the crack; Branch, Applewhite, and Simmons sold the drugs; and Branch controlled the supply of drugs, which he stored at the apartment of Applewhite's mother (Patricia Love), where Applewhite had lived and which he still frequented. Specifically, Butler testified that he observed Branch give a large bag of crack to Applewhite after which, at Branch's request, Applewhite went to a bedroom of the apartment and returned with a Tec-9 semi-automatic pistol.

According to the testimony of a police officer, Butler reported the foregoing information to the police, who then obtained and executed a search warrant for apartment No. 11 at 247 58th Street, N.E. In the kitchen the police found 11 bags containing 44 grams of crack. In a clothes hamper in a closet next to the kitchen they found the Tec-9 pistol and ammunition. In a bedroom, under the upper and lower mattresses of a bunk bed, the police also found another revolver with a speed loader, ammunition, plastic bags, paper bags, razor blades, and $255 in cash. Photos of Branch hung on the wall of a second bedroom. Simmons told the jury that Branch lived there during the period of the conspiracy.

The police officer also testified that while the search was underway, Branch left and went to a neighboring apartment where he was apprehended and where police found $1,901 in cash, keys to an Infiniti automobile, and a key to Patricia Love's apartment; Branch told the police the keys and money were his. About an hour later, again per the police officer, Applewhite appeared, waived his rights, and gave a written statement to the police. The Government also presented evidence that the distance between Applewhite's "address" and the nearest school was 920.2 feet, measured along the most direct route available to a pedestrian.

Neither Applewhite nor Branch testified at trial. A redacted version of Applewhite's written statement was introduced at trial, however; in it he admitted that he had been selling crack and that he had placed the Tec-9 in the closet. Simmons testified that Branch had purchased the Tec-9. Butler corroborated that fact and added that Branch had claimed the gun was needed to protect his drugs from robbers.

Applewhite called a police detective, who stated that the targets of the police investigation had always been Branch and Simmons. Branch did not present any evidence.

II. Analysis

A. PWID Within 1,000 Feet of a School

Section 860(a) of 21 U.S.C. provides in relevant part:

Any person who violates Section 841(a)(1) or Section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school ... [is] subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense.

The police testified that in order to determine whether the defendants had violated Sec. 860(a), they measured the distance from the nearest school to "the address" of the apartment building in which the defendants were arrested. They did not specify whether the measured distance of 920.2 feet goes only to the edge of the property or to the building itself, but it clearly does not include the distance between the entrance to the building and the place in Patricia Love's apartment where the drugs were discovered. The Government argues that the jury could nonetheless reasonably assume that the police witness's reference to "the address" meant the building entrance and that the jury could discern from a diagram of the apartment, which was introduced into evidence, that the distance from the entrance to the locus of the drugs was approximately 20 feet.

In reviewing the sufficiency of evidence, we ordinarily ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the central elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). The Government agrees that this question posits the correct standard of review with respect to Branch, whose mid-trial motion for judgment of acquittal was couched in terms sufficiently general to preserve the full range of challenges for his renewed motion at the close of the case. As to Applewhite, however, the Government contends that we should review only for "plain error" because his motions for judgment of acquittal were quite specific but did not raise the question whether the Government had proved that he possessed the drugs within 1,000 feet of a school. See United States v. Dandy, 998 F.2d 1344, 1357 (6th Cir.1993) (if motion for judgment of acquittal "is made on specific grounds, all grounds not specified are waived").

Applewhite, in turn, maintains that the Government has misread his motions. This dispute is of no moment, however, for there is insufficient evidence in the record to support a conviction under 21 U.S.C. Sec. 860(a) even under the more deferential standard of review.

In United States v. Johnson, 46 F.3d 1166 (D.C.Cir.1995), we reversed a conviction under Sec. 860(a) because "the government inexplicably offered evidence not of the distance from a school to the point in the house where Johnson possessed the drugs, but only ... to a point five feet up the walkway to Johnson's house." Id. at 1169. Similarly, argue the appellants here, the distance in this case was not resolved with the precision necessary to support the jury's verdict; as in Johnson, the police did not measure to the point of possession nor, the appellants claim, was the jury presented with evidence from which it could determine that the PWID occurred within 1,000 feet of a school.

In Johnson the court also held that the distance requirement is satisfied by a straight-line measurement from the school to the site of the PWID--as the crow flies, not as the distance a person must traverse by foot, which will be greater if one must go around buildings or other obstacles. Id. at 1169-70. As in that case, however, there is no evidence in the record here from which the jury could have derived the shorter straight-line distance. The Government's case must therefore stand or fall upon the adequacy of the...