U.S. v. Beckham

• Decision Date: 19 June 1992
• Docket Number: No. 91-3051,91-3051
• Citation: 968 F.2d 47
• Parties: , 36 Fed. R. Evid. Serv. 70 UNITED STATES of America v. Robert A. BECKHAM, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 47

968 F.2d 47

296 U.S.App.D.C. 311, 36 Fed. R. Evid. Serv. 70

UNITED STATES of America v. Robert A. BECKHAM, Appellant.

No. 91-3051.

United States Court of Appeals District of Columbia Circuit.

Argued April 13, 1992.

Decided June 19, 1992.

M. Elizabeth Kent, Washington, D.C. (appointed by this Court) for appellant.

Kenneth F. Whitted, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Thomas C. Black, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before: SILBERMAN, BUCKLEY, and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Robert A. Beckham was convicted of possession with intent to distribute crack cocaine and of aiding and abetting the distribution of crack. He appeals his convictions on two grounds: he argues that hearsay testimony was improperly introduced at his trial and that he was entitled to a jury instruction on the lesser-included offense of simple possession. Beckham also claims that the district court erred in sentencing him, because the court mistakenly believed that it lacked authority under the Sentencing Guidelines to make a downward departure from the indicated guideline range. We affirm Beckham's conviction but agree that the district court misunderstood its authority to depart downward. We therefore remand the case to the district court for resentencing.

I.

Several undercover police officers on patrol late one evening in August, 1990, noticed what appeared to be several persons engaged in drug transactions in the backyard of a house located at 5036 F Street, S.E., in Washington, D.C. Crossing the street to get a better look, one of the officers, Officer Dunston, saw two people in the yard: Robert Beckham was in a chair in the walkway leading up to the rear door of the house, and Monica Monroe sat on a bench approximately two feet away. ¹ As Officer Dunston approached the yard, Monroe inquired, "Are you looking?" Officer Dunston said that he was, and Monroe asked if he wanted "a fifty," which the officer took to mean a fifty dollar rock of crack.

Officer Dunston replied yes, walked into the yard, and stood directly in front of Monroe, who reached into her pants pocket and produced a clear ziplock bag containing a single rock of crack. Beckham remained seated two feet away. Officer Dunston inspected the rock and asked Monroe if he could purchase another fifty. Monroe replied, "I only had one, but you can get another from my buddy." At that moment, Beckham got up from his chair, walked past Dunston and Monroe to the far end of the bench on which Monroe was seated, and removed a large plastic bag, which contained numerous smaller ziplock bags, from underneath the bench. As Beckham began to open the bag, Officer Dunston identified himself as a police officer and arrested both Monroe and Beckham. The large plastic bag was found to contain slightly more than 13 grams of 89% pure crack, packaged in 34 smaller, $50 bags. A government drug expert testified that this packaging and amount was consistent with drug distribution and inconsistent with personal consumption.

The defense had an entirely different version of events. According to the appellant, this was "the case of the mysterious glove." Appellant's Br. at 20. Beckham had come to 5036 F Street the night of his arrest to visit his friend Monica Monroe and her sister, Marie Ward, who lived there. He brought over a six-pack of beer, which he placed in Ward's refrigerator. He began the evening by drinking a beer in the backyard with Monroe. As he sat in the yard chatting with her and several other friends--drugs were never exchanged or even mentioned--he noticed Officer Dunston approach the yard, sweating and tired. According to Beckham, Monroe asked Officer Dunston several times if he was all right, but Dunston never responded. Instead, Dunston walked into the backyard and began talking in low tones with Monroe. Beckham claimed that he never saw Monroe and Dunston exchange anything and that he did not hear what was said.

Beckham testified that while Monroe and Dunston were conversing, he finished his first beer and got up from his chair to get another one from the refrigerator. As he walked to the back door of the house, he noticed an object lying between the walkway and the bench. He knelt down to examine it and discovered that it was a dirty, tannish, suede man's glove. He had never seen it before. When he picked it up, intending to ask whether anyone in the house might have lost it, he felt something bulky in its palm. Intrigued, he turned it upside down, and a plastic bag, about the size of a golf ball, fell into his hand. He held the plastic bag for several seconds, trying to figure out what was inside of it, but before he could, he noticed a movement over his left shoulder. This turned out to be Officer Dunston with his gun drawn. Beckham dropped the bag and the glove and put his hands in the air. Although several other defense witnesses testified that they had noticed the glove lying in the yard or had seen it in the hands of the arresting officers, the officers denied having ever seen a glove, and the glove did not appear at trial.

The jury, obviously disbelieving the story of the mysterious glove, convicted Beckham of possession with intent to distribute and of aiding and abetting Monroe. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. Beckham received a sentence of 30 years in prison and eight years of supervised release, largely because he was classified as a career offender under § 4B1.1 of the Sentencing Guidelines based on two prior felony convictions. Beckham was only 18 years old at the time he committed one of the two offenses upon which his career offender designation was predicated. That armed robbery occurred 15 years ago, and for most of the intervening time, Beckham has apparently not been convicted of other crimes. The only other offense supporting the career offender designation, attempted possession with intent to distribute cocaine, occurred 13 years after the robbery conviction, in 1988. For the past decade, Beckham has been steadily employed doing auto body work. Appellant requested a downward departure from the guidelines range, but the district judge, although he felt that the 30 year sentence was "extraordinarily harsh," denied the request. The judge said that he had no discretion to make a downward departure.

II.

Beckham first challenges his conviction on the ground that it was obtained through use of impermissible hearsay, in violation of the Confrontation Clause of the Constitution. See U.S CONST. amend VI. Beckham argues that the district court erred in denying a motion in limine and permitting the prosecution to introduce through Officer Dunston Monica Monroe's statement, "I only had one, but you can get another from my buddy." It is asserted that this statement was the most important evidence of Beckham's intent to distribute. Monroe failed to appear for trial and was therefore unavailable to testify and to be cross-examined. If he had cross-examined Monroe, Beckham tells us, she would have said, as she apparently did later at her own trial, that her statement had been "you can get another from anybody," not from "my buddy." The government's case would have been correspondingly weaker.

The district court admitted Monroe's statement against Beckham under the hearsay exception for statements of a co-conspirator. See FED.R.EVID. 801(d)(2)(E). But the only evidence relied on by the district court in making the necessary predicate finding that Beckham and Monroe were engaged in a conspiracy, see Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987)--and the only evidence of conspiracy that existed--was the hearsay statement itself, Beckham's proximity to Monroe in the yard, and their apparent acquaintance. ² The hearsay statement may be considered in finding that a conspiracy existed, see id. at 181, but the statement may not be the sole basis for such a ruling. Under our precedent, there must be independent evidence of a conspiracy as well. See United States v. Washington, 952 F.2d 1402, 1407 (D.C.Cir.1991); cf. Bourjaily, 483 U.S. at 181, 107 S.Ct. at 2781 (reserving question whether independent evidence is necessary). But the independent evidence here--mere physical proximity and friendship--does not provide support for inferring that Monroe and Beckham "had the specific intent to further [a] common unlawful objective." United States v. Tarantino, 846 F.2d 1384, 1392 (D.C.Cir.) (per curiam), cert. denied, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988).

Even if we were to take Monroe's statement into account, the evidence tends to show at most that Monroe turned to Beckham as an alternative source of supply; it provides scant basis for inferring that Monroe and Beckham were joint venturers in a criminal enterprise or had any sort of prior agreement--the essence of a conspiracy. See Iannelli v. United States, 420 U.S. 770, 777 & n. 10, 95 S.Ct. 1284, 1289 & n. 10, 43 L.Ed.2d 616 (1975). In United States v. Morris, 836 F.2d 1371 (D.C.Cir.1988), we rejected an argument that a conspiratorial agreement could be shown based solely on a drug dealer's occasional purchases from a supplier. See id. at 1374. Monroe and Beckham's interaction prior to and during the charged drug sale suggests even less than a formal buyer-seller relationship. They may well have aided and abetted one another's drug sales and may therefore be liable for each other's distribution or possession with intent to distribute crimes, but aiding and abetting is different from committing the independent crime of conspiracy. See Iannelli, 420 U.S. at 777 n. 10, 95 S.Ct. at 1289 n. 10. The record simply discloses no evidence--and certainly no evidence independent from the hearsay statement itself--that would satisfy Rule 801(d)(2)(E)'s threshold requirement that Beckham and...