U.S. v. Bass

• Decision Date: 23 April 1976
• Docket Number: No. 75-1560,75-1560
• Citation: 175 U.S. App. D.C. 282,535 F.2d 110
• Parties: UNITED STATES of America v. James BASS, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 110

535 F.2d 110

175 U.S.App.D.C. 282

UNITED STATES of America v. James BASS, Jr., Appellant.

No. 75-1560.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 17, 1975.

Decided April 23, 1976.

Fred Warren Bennett, Washington, D. C., for appellant.

John L. Kern, Asst. U. S. Atty., Washington, D. C., for appellee. Earl J. Silbert, U. S. Atty., John A. Terry, James F. Rutherford, Charles J. Harkins, Jr., Carolyn R. Kleiman, Asst. U. S. Attys. and Stuart M. Gerson, Asst. U. S. Atty., Washington, D. C., at the time the brief was filed, were on the brief for appellee. Steven R. Schaars and Bernard J. Panetta, II, Asst. U. S. Attys., Washington, D. C., also entered appearances for appellee.

Before BAZELON, Chief Judge, ROBINSON and MacKINNON, Circuit Judges.

Opinion for the Court filed by Chief Judge BAZELON.

BAZELON, Chief Judge:

James Bass was convicted by a jury of three counts of distribution of a controlled substance in violation of 21 U.S.C. § 841(a), and was sentenced to ten years' imprisonment on each count, all sentences to run concurrently. He appeals both the conviction and the sentence. We affirm.

I

On July 13, 1974, Carl Holmes, a drug addict for over 25 years with a long criminal record and at the time on parole until 1977, sold $300 of heroin and $100 of cocaine to undercover Drug Enforcement Administration Agent James Quander. On July 23, and July 29, 1974, Holmes sold $620 of heroin to Agent Quander. A four count indictment was filed against Holmes in October, 1974. Pursuant to an agreement with the United States Attorney's Office, Holmes pleaded guilty to one count of possession of a controlled substance with intent to distribute. Holmes promised to identify his supplier, and in return the U. S. Attorney's Office agreed to inform Holmes' sentencing judge of whatever cooperation Holmes provided. As a result of Holmes' testimony before the grand jury, the appellant was indicted on four counts of distribution of a controlled substance, each count being a sale to Holmes of narcotics which Holmes had transferred to Agent Quander on the dates recited in Holmes' indictment.

With respect to the two counts involving sales on July 13, Agent Quander testified that he had been introduced to Holmes on that date, and that Holmes had agreed to sell him $300 of heroin. Quander drove Holmes to 10th and H Streets, N.E., and observed Holmes confer with the appellant in front of a clothing store in which appellant owned a part interest. (Two District of Columbia police officers who had seen appellant on numerous other occasions testified that they, too, had observed him talking to Holmes outside the store.) Holmes returned to the car and directed Quander to 54 Galveston Street, S.W. While en route, Holmes agreed to sell $100 of cocaine in addition to the agreed upon sale of heroin. At Galveston Street Quander gave Holmes $400; Holmes entered the building and returned twenty minutes later with cocaine and heroin which he gave to Quander. ¹ Holmes testified that he had gone to apartment 101 or 102 of 56 Galveston, a building attached to 54 Galveston, had met the appellant there, and had purchased the narcotics from him. Holmes further stated that he had been given the address by the appellant when they conferred outside the store, and that he had gone to the store at appellant's direction after calling him to report on the prospective buyer. A card in Holmes' possession with the phone number of appellant's store was introduced into evidence.

With respect to the July 23rd sale, Quander testified that he had again driven Holmes to Galveston Street and given him money. Quander observed Holmes enter 54 Galveston and return over an hour later with heroin. Holmes testified that he had proceeded to the same apartment, waited for appellant to arrive and then leave and return again with some heroin, and purchased from appellant the $620 of heroin that Holmes gave to Quander.

With respect to the July 29th sale, Agent Quander testified that Holmes had forbade him from going to the site of the purchase. Quander gave Holmes $620, and Holmes returned three hours later with heroin. Holmes testified that he had gone to the Galveston Street apartment, and that while there someone had knocked on the door. According to Holmes, appellant looked through the peep hole, thought it was a narcotics agent, and exited through the window. Holmes left through the front door and when he got to the street saw appellant conversing with a stranger about a woman named Mary. After that person left, Holmes joined the appellant; they drove around for about forty-five minutes in a tan Ford station wagon, and then returned to the apartment where the appellant sold Holmes the $620 of heroin that Holmes gave Quander. Holmes' testimony was corroborated, in part, by three Drug Enforcement Administration Agents. Special Agent Blackburn stated that he had knocked on the door of apartment 101, had seen someone look through the peep hole, and upon leaving the building had observed the appellant, whom Blackburn had seen on numerous other occasions, and had engaged him in conversation about a woman named Mary or Jane. ² Special Agent Perry testified he had seen Holmes enter 54 Galveston, had watched the appellant, whom Perry knew from the clothing store, exit from a second floor window and converse first with Agent Blackburn and then with Holmes. And Special Agent Davis reported having seen Holmes entering the building and sometime later conversing with appellant outside of the building.

Appellant testified in his own defense. He denied ever having sold narcotics to Holmes, been in apartment 101 or 102 at 56 Galveston Street, S.W., been in any apartment in 54 or 56 Galveston Street with Holmes, exited through a window on July 29, or conversed with Holmes or Agent Blackburn on the same night. He stated that his only dealings with Holmes had involved a personal loan and an extension of credit to Holmes at appellant's store. ³ He claimed that Holmes was testifying against him because appellant had refused Holmes further loans three months earlier. ⁴

Appellant was convicted on two counts involving sales on July 13, and one count involving a sale on July 29. The jury was unable to reach a verdict on the count charging a sale on July 23.

II

Appellant first argues that the district court erred in permitting Agent Quander to testify about, and the prosecutor to discuss in his closing argument, appellant's "high life style." We find no reversible error.

On direct examination Agent Quander, the Government's first witness, testified that on July 13, 1974 he had taken Holmes to 10th and H Streets, N. E., where Holmes met Bass. On cross-examination, defense counsel asked if appellant had a store there, and Quander replied that subsequent to July 13 he had so learned. Counsel then elicited testimony that Quander also had subsequently learned that appellant was vice-president of the store. When counsel asked Agent Quander whether he also had discovered how long the appellant had been at the store, the prosecutor successfully objected on hearsay grounds.

On redirect examination, Agent Quander was asked to supply appellant's home address, and was then asked, "do you know what kind of neighborhood that is?", to which Quander replied, "That is a residential neighborhood, fairly exclusive neighborhood." The prosecutor then asked, "Do you know what kind of a car he drives?", to which Quander stated, "I know he has three vehicles registered to him, he has a 1973 Cadillac, 1973 Ford Torino stationwagon ". At this point, defense counsel objected and the following colloquy took place:

DEFENSE COUNSEL: Your Honor, I am going to object unless I am permitted to go into Mr. Bass' business, his yearly income and his salary.

U.S. ATTORNEY: He has got the best witness for that, Your Honor.

THE COURT: Yes.

DEFENSE COUNSEL: Because I think it is irrelevant, as to the distribution of narcotics, as to where he lives and what he drives.

THE COURT: All right, come to the bench, gentlemen.

(Tr. 105.)

(AT THE BENCH)

U.S. ATTORNEY: I am bringing out the car, because he was driving a car on the 29th.

THE COURT: Well, I think you have gone far enough, is there anything else you have?

U.S. ATTORNEY: No, I don't have anything further.

THE COURT: All right.

The prosecutor did not return to the subject of appellant's "high life style" throughout the duration of the Government's case-in-chief, except to ask Mr. Holmes if he knew who owned or rented the Galveston Street apartment to which Holmes had gone. When Holmes stated that it was appellant's apartment, Holmes was asked, "Was that the only apartment he had there?" to which he replied, "No, I think it was another one." (sic). In contrast, defense counsel, in cross-examining Officer Hill, asked several questions about appellant's store and established that appellant had an interest and ran the store, and that it was a "relatively large size, popular" clothing store, employing 7-10 sales persons, selling the "latest type of clothing." Counsel also asked Agent Perry about the number of employees in the store. Moreover, in the defense case, counsel questioned the appellant in detail about his income, offering an auditor's statement to show that in 1974 the business grossed over $250,000 and eliciting testimony that appellant's income from the store was $25,000. On cross-examination, the appellant stated that he also owned a four unit apartment building at 141 Galveston Street S.W. from which he derived $6,500 but admitted that because of a fire at the store, no commissions had been paid in 1974 and therefore his income from the store in 1974 was only $14,000, his salary.

In his closing argument to the jury, the prosecutor referred to all this evidence as follows:

These are not small amounts of heroin; that is $1,500 he spent just for two or three transactions. That enables him to maintain a couple of apartments on...