U.S. v. Barrow

• Decision Date: 02 March 2005
• Docket Number: Docket No. 03-1074.
• Citation: 400 F.3d 109
• Parties: UNITED STATES of America, Appellee, v. Leotha BARROW, also known as "Petey", Defendant, Calvin Johnson, also known as "Kyle", Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

400 F.3d 109

UNITED STATES of America, Appellee, v. Leotha BARROW, also known as "Petey", Defendant Calvin Johnson, also known as "Kyle", Defendant-Appellant.

Docket No. 03-1074.

United States Court of Appeals, Second Circuit.

Argued: September 14, 2004.

Decided: March 2, 2005.

COPYRIGHT MATERIAL OMITTED

Richard B. Lind, New York, New York, for Defendant-Appellant.

John Nathanson, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellee.

Before: SACK, RAGGI, and HALL, Circuit Judges.

RAGGI, Circuit Judge.

Calvin Johnson appeals from a judgment of conviction entered on February 5, 2003, after a jury trial in the Eastern District of New York (Nicholas G. Garaufis, Judge) at which he was found guilty on four counts of distributing or possessing with intent to distribute cocaine base ("crack cocaine"), see 21 U.S.C. §§ 841(a)(1), (b)(1)(C); one count of distributing or possessing with intent to distribute cocaine, see id.; one count of conspiring to distribute or possess with intent to distribute heroin, see id. §§ 841(b)(1)(C), 846; and one count of distributing or possessing with intent to distribute heroin, see id. §§ 841(a)(1), — (b)(1)(C). Sentenced to a 70-month term of incarceration, which he is presently serving, three years' supervised release, and a $700 special assessment, Johnson now seeks reversal of his conviction and a new trial based on two alleged evidentiary errors: (1) the admission into evidence of his pretrial proffer statements to rebut trial assertions made by defense counsel, and (2) the admission of expert testimony from a law enforcement officer who also testified as a fact witness. Because we conclude that both evidentiary rulings were within the district court's discretion, we hereby AFFIRM the judgment of conviction.

I. Factual Background

A. Johnson's Drug Dealing

From March 2001 to the end of that year, law enforcement authorities used a confidential informant and undercover police officers to investigate narcotics trafficking at and in the vicinity of 215 Schaefer Street, Brooklyn. The initial target of the investigation was Leotha Barrow, also known as "Petey," from whom confidential informant Carvin Skidmore made several purchases of crack cocaine in March 2001. By April 2001, however, authorities began to focus on Barrow's confederate, defendant Calvin Johnson. At trial, the prosecution proved Johnson's distribution of drugs, or his possession of drugs with intent to distribute, on the following days:

1. April 19, 2001

On April 19, 2001, law enforcement authorities sought to have informant Skidmore introduce a New York City undercover officer, Detective Luis Campana, to Leotha Barrow as a potential purchaser of crack cocaine. To arrange the meeting, Skidmore placed an unrecorded telephone call to Barrow. Detective Patricia Rodriguez, a member of the investigative team, testified that she overheard Skidmore say the name "Cal" in the course of his conversation with Barrow.¹

After the telephone call, Skidmore and Det. Campana proceeded to 215 Schaefer Street, a three-story red-brick building. Det. Campana testified that, in the second-floor hallway, they encountered defendant Johnson who asked them whom they wanted to see. When Det. Campana stated, "Petey," Johnson replied that he was not around and asked the men what they were "looking for." Trial Tr. at 73. Skidmore said he was looking for "ten bags," and Det. Campana said he was interested in "nine." Id. Skidmore and Det. Campana then paid Johnson $10 for each bag requested, whereupon Johnson went into a room, emerging a few minutes later to hand the two purchasers a total of nineteen ziplock bags, each containing a white rocky substance that laboratory analysis subsequently confirmed to be crack cocaine.

2. May 15, 2001

Skidmore and Det. Campana returned to 215 Schaefer Street on May 15, 2001. Encountering Johnson on the street, the informant and the detective told him that they each wanted "ten" and paid Johnson in cash. Id. at 81. Johnson pulled a bag out of his pants from which he removed twenty smaller bags, each containing crack cocaine.

3. August 15, 2001

Three months later, on August 15, 2001, Det. Campana went to 215 Schaefer Street without Skidmore, meeting Johnson on the stoop. In addition to Det. Campana testifying to the meeting, a videotape and audiotape of the encounter were played for the jury.² Initially, Johnson professed not to recognize the detective. Det. Campana reminded Johnson of previous purchases of crack that he had made in the company of Carvin Skidmore, and he stated that he was now interested in purchasing another "ten." Id. at 83. Before proceeding, Johnson demanded that the officer lift his shirt, presumably to check that he was not wearing a recording device. Apparently satisfied, Johnson sold Det. Campana ten ziplock bags of crack cocaine.

4. August 22, 2001

Soon thereafter, on August 22, 2001, Det. Campana returned to 215 Schaefer Street, with fellow officers again video — and audiotaping his outdoor movements. Seeing Johnson on the street in the company of several persons, Det. Campana called out, "Cal." Johnson replied by asking Det. Campana "how many" he wanted. Trial Tr. at 91-92, 111-13. Soon thereafter, Det. Campana gave Johnson $100, whereupon Johnson gave the detective ten ziplock bags of crack cocaine.

5. December 8, 2001

On December 8, 2001, New York City undercover Detective Deanna Delesbore went to the corner of Knickerbocker and Schaefer Streets where she spotted Calvin Johnson, who was soon joined by another man. Det. Delesbore asked if they had any "sniff," a street term for heroin or cocaine. Id. at 187. The second man said he did not have anything there but asked Det. Delesbore to wait. Johnson and his companion got into a car driven by a third person and left the scene. Returning a short while later, the second man gestured for Det. Delesbore to deal with Johnson, who, in exchange for $20, sold her two glassine envelopes with small grains of powder that laboratory analysis confirmed to be heroin.

At about the same time, another undercover officer, Detective Antoine Manson, also approached the corner of Knickerbocker and Schaefer Streets and purchased a glassine envelope of heroin grains from Johnson. Soon thereafter, Johnson was arrested. On his person, police officers found a small quantity of cocaine and several hundred dollars in cash, including pre-recorded buy money from the undercover purchases.

B. The Federal Charges and the Proffer Agreement

Within days of Johnson's arrest, federal authorities decided to prosecute Johnson and Leotha Barrow for crack dealing. A complaint filed December 11, 2001, in the Eastern District of New York alleged that Barrow had sold crack to a confidential informant on March 9, 2001; March 12, 2001; and April 3, 2001. It alleged that Johnson had sold crack to an undercover officer on April 19, 2001, and to a confidential informant on April 26, 2001. The complaint further charged that on May 15, 2001, after the confidential informant and the undercover officer spoke with Leotha Barrow, they met with Johnson who sold them crack. It alleged that Johnson again sold crack to the undercover officer on August 15, 2001, and on August 22, 2001.

A federal indictment was filed against Johnson and Leotha Barrow on March 4, 2002, charging them with conspiracy to distribute crack and substantive distribution on the aforementioned dates.³ The following month, Johnson began to explore cooperation with prosecutors.

Toward that end, on April 24, 2002, Johnson signed a proffer agreement, which controlled his debriefing on that day. He signed additional agreements, identical in pertinent part, at subsequent debriefings on May 2, 2002, and June 3, 2002. The agreements uniformly represented that federal prosecutors would not use any proffer statements made by Johnson either in their case-in-chief at trial or at sentencing. Nevertheless, the agreements stated that prosecutors could use Johnson's proffer statements as leads to other evidence; as substantive evidence to cross-examine him; and "as substantive evidence to rebut any evidence offered or elicited, or factual assertions made, by or on behalf of [Johnson] at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing)." Proffer Agreement, Apr. 24, 2002, at 1; see also Proffer Agreement, May 2, 2002, at 1; Proffer Agreement, June 3, 2002, at 1. It is the quoted passage that is at issue on this appeal.

C. The Use of Proffer Statements at Trial

By letter dated June 28, 2002, Johnson's counsel, who also represents him on this appeal, advised prosecutors that his client no longer wished to pursue cooperation. In late October 2002, when Johnson's case proceeded to trial, an issue arose as to the admissibility of Johnson's proffer statements to rebut assertions made by his counsel in his opening statement to the jury and in his cross-examination of Det. Campana.

1. The Precipitating Actions by Defense Counsel

In his opening statement, Johnson's counsel announced that the defense theory was mistaken identity: "I want to be very clear with you at the outset, what the defense's position is as to the first four sales [i.e., the crack sales] and that is, that this is a case of mistaken identity." Trial Tr. at 22. In support of this theory, defense counsel stated that Leotha Barrow's brother Jamal was the real perpetrator of the charged crimes:

[T]he guy on that tape, on August 15th, is not Calvin Johnson but Jamal Barrow, and the person who sold drugs to the undercover agent April 19th, 2001 was not Calvin Johnson, it was Jamal Barrow, the same person who is on that tape. And on May 15th it was Jamal Barrow not Calvin Johnson, the same person who is on the August 15th tape.

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