U.S. v. Baylor

• Decision Date: 24 January 1997
• Docket Number: Nos. 95-3035,95-3039,s. 95-3035
• Citation: 321 U.S. App. D.C. 85,97 F.3d 542
• Parties: , 113 Ed. Law Rep. 90, 45 Fed. R. Evid. Serv. 1031 UNITED STATES of America, Appellee, v. Lorenzo J. BAYLOR, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 542

97 F.3d 542

321 U.S.App.D.C. 85, 113 Ed. Law Rep. 90,

45 Fed. R. Evid. Serv. 1031

UNITED STATES of America, Appellee, v. Lorenzo J. BAYLOR, Appellant.

Nos. 95-3035, 95-3039.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 4, 1996.

Decided Oct. 4, 1996.

Rehearing Denied Jan. 24, 1997.

Appeals from the United States District Court for the District of Columbia (No. 94cr00251-02), (No. 94cr00251-03).

Michael T. Lempres, Washington, DC, argued the causes for appellants and filed the briefs for appellant Walter J. Smith. Lauren S. Kahn, appointed by the court, McLean, VA, was on the brief for appellant Lorenzo J. Baylor.

Elizabeth H. Danello, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Roy W. McLeese, III, and Linda Otani McKinney, Assistant United States Attorneys, were on the brief.

Before: WALD, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring specially filed by Circuit Judge WALD.

ROGERS, Circuit Judge:

In these appeals from their convictions by a jury of conspiracy to distribute cocaine base, 21 U.S.C. § 846, distribution of cocaine base, id. § 841, and distribution of cocaine base within 1,000 feet of a school, in violation of id. § 860(a), appellants Lorenzo J. Baylor and Walter Jamal Smith raise separate and joint challenges. Smith contends that the district court abused its discretion in curtailing cross-examination of a key government witness on the subject of a prior conviction. Smith also contests the sufficiency of the evidence to sustain his conviction for drug distribution within 1,000 feet of a school. ¹ Both appellants challenge the sufficiency of the evidence to support their convictions for conspiracy. Baylor further contends that the district court clearly erred by increasing his base offense level to reflect his managerial role in the drug transactions, by failing to consider a downward departure based on a Sentencing Commission Report on cocaine sentencing policy, and by including as relevant conduct for purposes of calculating his base offense level drug amounts involved in counts of which he was acquitted. We affirm the judgments of conviction but, in view of the merger of the distribution counts with the "schoolyard statute" drug possession counts, we remand the case to the district court.

I.

The government's evidence showed that in 1994 appellants Baylor and Smith, and indicted co-conspirator Douglas Coates, worked together to complete a series of transactions involving the distribution of cocaine base. Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942), the evidence established that Baylor supplied the drugs to Coates, who then provided them to Smith for retail sale. On April 4, 1994, Coates introduced Smith to an undercover police officer at an apartment house located at 704 3rd Street, N.W., which was 534 feet from the Georgetown Law Center. Smith, the officer, and another man went to a small apartment located in the basement level of the building, where Smith produced a gym bag containing a large quantity of white rock substance. Smith then sold 10.21 grams of cocaine base to the officer for $500.

Following two other sales in April 1994 by Coates to the undercover officer, and after reporting that his supplier had just ordered a price increase to $1,200 for an ounce of crack, Coates introduced the officer to "his man" Baylor on May 19, 1994. After the officer gave Coates the money, Coates and Baylor entered a barbershop located in the one thousand block of U Street, N.W. When Coates returned he handed the officer a bag containing 21.431 grams of cocaine base. Coates stated that the quality of the cocaine was identical to that purchased by the officer on the three prior occasions. The May 19th sale occurred within 302 feet of Garnett Patterson Junior High School.

Prior to trial, Coates pled guilty to the distribution of 50 grams or more of cocaine base and agreed to testify for the government. Coates described his relationship with Baylor and Smith as having commenced in March 1993 when Baylor began to "front" between half an ounce and an eighth of a kilogram of cocaine base to Coates two or three times a week. Coates either sold the drugs himself or supplied other sellers, and paid Baylor only once the drugs were sold. Baylor determined where the two men would meet, the price of the cocaine sold, and whether Coates would be compensated in cash or cocaine. It was during this same period that Smith first approached Coates to ask whether he could procure drugs for him. In March and April 1993, Coates twice supplied Smith with one to two ounces of cocaine base that had been provided to him by Baylor. Monies paid by Smith to Coates were remitted to Baylor who, in turn, paid Coates a commission in the form of either money or cocaine. Smith informed Coates that he was selling the drugs at a homeless shelter located at 2nd and D Streets, N.W., and later at 704 3rd Street, N.W., and that he had two or three other persons working for him. Although the two lost contact during the summer of 1993, Smith approached Coates in October of that year to ask if Coates could still "work the deals for him." From November 1993 through March 1994, Coates sold Smith an eighth of a kilogram of cocaine base on six separate occasions. Each delivery was made with cocaine that had been provided to Coates by Baylor.

At trial, the government presented expert evidence concerning the typical features of drug conspiracies in the District of Columbia. According to the expert, drug distribution chains are frequently structured so that wholesalers and retailers have no direct contact with one another and instead work entirely through intermediaries.

In their defense, both appellants sought to impeach Coates' testimony. In addition to presenting other witnesses, Baylor testified that he had never had an agreement with Coates to sell drugs, and Smith denied that he ever bought cocaine from Coates. Following the government's rebuttal, the jury found Smith guilty of the April 4, 1994, distribution count, Baylor guilty of the May 19, 1994, distribution count, and both defendants guilty of conspiracy. Baylor was acquitted on counts relating to the distributions on April 4, 13, and 20, 1994.

II.

Appellant Smith contends that the district court erred in restricting his cross-examination of Coates on the subject of Coates' prior conviction under the Bail Reform Act. On direct examination, Coates admitted his prior convictions for drug distribution, conspiracy to distribute cocaine, and violation of the Bail Reform Act. On cross-examination, Coates stated that the Bail Reform Act conviction had resulted not from his failure to perform under the conditions of his bail, but because he missed a court date. When asked by defense counsel why he had missed it, Coates explained that he had been incarcerated at the time. He then admitted to having been sentenced for the violation. At this point, the prosecutor objected that the inquiry went well beyond proper impeachment. Smith's counsel argued that he was entitled to inquire whether Coates had violated the conditions of his release in order to test his trustworthiness. In sustaining the objection, the district court ruled that "[Y]ou cannot go into the details of the conviction."

Under Federal Rule of Evidence 609(a), when evidence of a prior conviction is admitted for purposes of impeachment, cross-examination is usually limited to the essential facts rather than the surrounding details of the conviction. United States v. Castro, 788 F.2d 1240, 1246 (7th Cir.1986). Courts have recognized, however, that under certain circumstances details concerning a conviction may be elicited, and the district court's determination as to the nature and extent of the inquiry is reviewed for abuse of discretion. See e.g., United States v. Swanson, 9 F.3d 1354, 1357 (8th Cir.1993). On appeal the government maintains that once the nature and date of Coates' Bail Reform Act conviction were established, Smith had no right to probe the underlying facts. Citing United States v. Butler, 924 F.2d 1124, 1130 (D.C.Cir.), cert. denied, 502 U.S. 871, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991), however, the government acknowledges that a witness may "open the door" to more extensive cross-examination by attempting to minimize the conduct for which he was convicted.

Without knowing the facts underlying Coates' Bail Reform Act conviction, Coates' answers on cross-examination might well have been interpreted by a reasonable juror as an attempt to explain away the conviction. Certainly, Coates' testimony implied that he thought his incarceration was a defense to the Bail Reform Act charge. Consequently, Smith contends that the district court abused its discretion by cutting off cross-examination of a key government witness without allowing the defense an opportunity to ensure that the jury would understand the nature of Coates' conviction and could evaluate whether his explanation was credible.

Although we agree with the government that Coates' testimony sufficed to explain to the jury the basic nature of a Bail Reform Act violation, see D.C.Code § 23-1327, Coates' claim that he was incarcerated at the time could reasonably have been interpreted by the jury to suggest that Coates was unfairly convicted. Given the centrality of Coates' testimony and the efforts made by the defense to cast doubt on his credibility, the district court might well have afforded counsel some additional leeway in order to clarify the circumstances of the conviction. See United States v. Wolf, 561 F.2d 1376, 1381 (10th Cir.1977). The usual reason for caution with respect to the scope of cross-examination concerning a witness' prior conviction, namely, the...