U.S. v. Askew, 94-3139

• Citation: 88 F.3d 1065
• Decision Date: 12 July 1996
• Docket Number: No. 94-3139,94-3139
• Parties: UNITED STATES of America, Appellee, v. Darryl Wayne ASKEW, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1065

88 F.3d 1065

UNITED STATES of America, Appellee, v. Darryl Wayne ASKEW, Appellant.

No. 94-3139.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 26, 1996.

Decided July 12, 1996.

Appeal from the United States District Court for the District of Columbia (No. 93cr00465-01).

Thomas G. Corcoran, Jr., Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant.

Mary B. McCord, Assistant United States Attorney, Washington, DC, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Elizabeth Trosman, and Steven J. McCool, Assistant United States Attorneys, were on the brief, argued the cause for appellee.

Before: WALD, WILLIAMS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Appellant challenges his conviction for possession of more than fifty grams of cocaine base with intent to distribute, arguing that it was plain error for the trial court to admit certain expert testimony about intent, that he received ineffective assistance of counsel, and that the trial court improperly admitted as rebuttal evidence testimony regarding a prior arrest. Concluding that appellant has not shown prejudice from the admission of the expert testimony or from his counsel's performance and that the district court did not abuse its discretion in allowing the rebuttal testimony, we affirm his conviction.

I.

Shortly after midnight, on December 6, 1993, a United States Park Police officer observed appellant Darryl Wayne Askew in the passenger seat of a car parked in front of Washington, D.C.'s Union Station. Another person entered the car and started to drive away with Askew still inside. Noticing that it had no front license plate, the police officer stopped the car. After obtaining the occupants' names and running an information check on them, the officer returned to the car to arrest Askew. Askew stepped out of the car and ran away. Several police officers eventually apprehended him, arrested him, and found in his possession 148.3 grams of cocaine base, five glass pipes, four lighters, and a pager. Askew was charged with one count of unlawful possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii).

Askew was appointed counsel, Assistant Federal Public Defender Amy Seidman. Less than a week before trial, claiming dissatisfaction with Seidman, Askew requested a different attorney. Another attorney from the Federal Public Defender Office, Assistant Federal Public Defender Michael Wallace, who had spoken with Seidman about the case, was appointed to represent Askew. Wallace reviewed the case files on a Friday evening, met with Askew and Seidman for about an hour the next day, and then left town, returning the following Wednesday, the day before trial.

Testifying at Askew's jury trial in the United States District Court for the District of Columbia, the arresting officer described the circumstances of Askew's arrest, noting that afterwards, Askew repeatedly stated that he "need[ed] a hit." The prosecution also presented an expert witness who testified that in his opinion, the amount of cocaine base found in Askew's possession was consistent with intent to distribute.

Askew's theory of defense was that he possessed the cocaine base for his personal use, not for distribution. At trial, he testified that he had been addicted to crack cocaine for four or five years. He also asserted that he had obtained the cocaine earlier on the day he was arrested from two boys who were selling drugs in an alley. According to Askew, when a police car pulled up, he snatched the drugs from the boys and ran away. Askew's fiancee testified on his behalf, stating that beginning in the summer of 1993 he began losing weight quickly, his appearance deteriorated, they stopped having sexual relations, and she noticed that money and jewelry were missing from her home.

Over the objection of Askew's counsel, the prosecution called as a rebuttal witness a New Jersey state trooper who testified that he arrested Askew in New Jersey in 1989 on drug charges. Askew's attorney, Wallace, was unaware that these charges had been dismissed as a result of a class action alleging trooper bias. The jury was never informed that the New Jersey charges were no longer pending against Askew.

The jury convicted Askew, and the district court sentenced him to a prison term of 121 months followed by five years of supervised release. Askew later sought to have his conviction vacated pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel. After a hearing, the district court rejected his claims, and Askew now appeals.

II.

Askew argues for the first time on appeal that the district court committed plain error by admitting into evidence certain statements of opinion regarding intent by the Government's expert witness. The expert, Metropolitan Police Detective Tyrone Thomas, testified that the amount of cocaine base found in Askew's possession was enough to make 1,032 individual doses and that its street value exceeded $20,000. Detective Thomas also gave his opinion that possession of this amount of cocaine was consistent with an intent to distribute rather than with personal use. He stated, "My opinion would be that anyone who possessed the equivalent of 1,032 bags of crack cocaine would be in the business of selling drugs on the streets of Washington, D.C. or wherever for a profit." He also testified, referring to a Government exhibit containing the cocaine, pipes, and lighters that had been found in Askew's possession, "I believe that the 148 grams that are inside of here was intended to be sold on the streets of Washington for a profit for a drug dealer." On cross-examination, Detective Thomas said, "[M]y opinion is that no one is going to possess the equivalent of 1,032 bags of crack cocaine for their personal use." Askew argues that this testimony violated Federal Rule of Evidence 704(b), which provides:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.

Because Askew did not object to the admission of these particular statements at trial, we review for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. The Supreme Court has explained that Rule 52(b) allows for correction of a trial error not drawn to the attention of the court if an error is shown, the error is "plain" under current law, and the error affected substantial rights. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993). If these requirements are met, we may correct the error, but only if the error " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)) (alteration in Olano).

For the district court's admission of the challenged statements to be plain error, "it must ... have been error under settled law of the Supreme Court or this circuit" at the time of trial. United States v. Mitchell, 996 F.2d 419, 422 (D.C.Cir.1993). Thus, Askew cannot benefit from our holding, more than a year after his trial, that Rule 704(b) is violated when an expert gives an opinion regarding an element of the crime in response to a hypothetical question "exactly mirror[ing]" the facts of the defendant's case. United States v. Boyd, 55 F.3d 667, 672 (D.C.Cir.1995). Instead, Askew must rely on two cases decided prior to his trial, Mitchell and United States v. Williams, 980 F.2d 1463 (D.C.Cir.1992).

In Williams, the prosecutor asked an expert witness whether a certain quantity and packaging of zip-lock bags "indicate anything in [the expert's] opinion as to the intentions of the person who possessed those bags." Williams, 980 F.2d at 1465. The witness replied, "Yes, sir. These bags were meant to be distributed at street level." Id. In response to defense counsel's objection, the judge clarified the testimony by obtaining the officer's admissions before the jury that the officer was "giving his opinion" and that he was not referring to and had no knowledge of the particular defendant's case. Id. In response to further questioning, the expert witness again testified that "these bags were intended for" "street level distribution." Id. On appeal, although we acknowledged that "[a]n expert's opinion that a specific defendant had the 'intentions' to distribute cocaine might be thought a determination prohibited by Rule 704(b)," we found no violation because the prosecutor's question was ambiguous--focusing on the bags, not the defendant--and because the judge intervened to clarify that the testimony referred only to a "hypothetical typical individual," not to the defendant in particular. Id. at 1466.

In Mitchell, the prosecutor asked an expert witness, "Now, what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?" Mitchell, 996 F.2d at 422. The witness replied, "It was intent to distribute." Id. We held that, absent any corrective instruction by the trial judge, this testimony, pointing more directly than the testimony in Williams to the mental state of "the person that was carrying those ziplocks," violated Rule 704(b). Id.

In Askew's case, Detective Thomas made one statement regarding intent that seems to fall somewhere between the facts of Williams and Mitchell: "[T]he 148 grams that are inside of here was intended to be sold on the streets of Washington for a profit for a drug dealer." As in Williams, the statement appears to...