U.S. v. Boney

• Decision Date: 13 October 1992
• Docket Number: 90-3281,Nos. 90-3270,s. 90-3270
• Citation: 977 F.2d 624,298 U.S.App. D.C. 149
• Parties: , 36 Fed. R. Evid. Serv. 1358 UNITED STATES of America v. Jermaine BONEY, Appellant. UNITED STATES of America v. Donald A. HOLLOMAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 624

977 F.2d 624

298 U.S.App.D.C. 149, 36 Fed. R. Evid. Serv. 1358

UNITED STATES of America v. Jermaine BONEY, Appellant.

UNITED STATES of America v. Donald A. HOLLOMAN, Appellant.

Nos. 90-3270, 90-3281.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 6, 1992.

Decided Oct. 13, 1992.

Appeals from the United States District Court for the District of Columbia (89cr00381-03 & 89cr00381-02); Stanley S. Harris, J.

Barbara McDowell (appointed by this court), with whom James E. Anklam, Washington, D.C., was on the brief, for appellant Jermaine Boney in 90-3270. Timothy B. Dyk, Washington, D.C., also entered an appearance, for appellant.

Mona Asiner, Alexandria, Va. (appointed by this court), for appellant Donald A. Holloman in 90-3281.

Kristan Peters-Hamlin, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before: SILBERMAN, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Opinion dissenting in part and concurring in part filed by Circuit Judge RANDOLPH. SILBERMAN, Circuit Judge:

Appellants Donald Holloman and Jermaine Boney appeal their drug trafficking convictions. Both were convicted under 21 U.S.C. § 841(a) for distribution of cocaine, and one, Boney, was also convicted of possession of 12.72 grams of cocaine. Boney claims that the district court erroneously permitted an expert witness to testify as to his guilt. Holloman objects to the district court's failure to give an identification instruction to the jury and contends that the court improperly considered for sentencing purposes the very 12.72 grams of cocaine involved in the possession charge of which he was acquitted. Both appellants assert that their Sixth Amendment right to an impartial jury was violated because after trial it was discovered that one of the jurors was a convicted felon. We affirm on all issues except the Sixth Amendment juror bias claim. We remand for the district court to hold a hearing into actual bias.

I.

Shortly after midnight on September 12, 1989, an undercover officer of the Metropolitan Police Department, Darrell Young, approached Jeffrey Marks and sought to buy twenty dollars worth of crack cocaine. Marks asked appellant Donald A. Holloman, who was standing a short distance away, to "serve" Investigator Young. Holloman replied that he might not have enough. Marks thereupon called to appellant Jermaine Boney, who was also standing nearby, and told him to "break ... a piece off the rock." Boney walked to a pickup truck, reached down behind the rear tire, and retrieved a plastic bag which held what Young described as a large off-white rock. Holloman then said that he had enough for the transaction and gave Investigator Young .199 grams of cocaine base of 84% purity. Young, in exchange, gave Holloman a twenty dollar bill with a prerecorded serial number.

After returning to his car, Young radioed members of his arrest team to move in and told them that Holloman was walking toward a nearby gas station. As they approached, one of the arresting officers saw Boney throw a plastic bag under the pickup truck. Another officer retrieved the bag, which contained 12.72 grams of cocaine base of 69% purity. Boney and Marks were arrested at the scene of the sale. Holloman was arrested while standing at the cashier's window in the nearby gas station. Holloman and the cashier were the only people at the station, and the pre-marked twenty dollar bill was on the counter in front of Holloman. Young identified all three suspects at the scene of the arrest.

Marks, Holloman, and Boney were tried before a jury for distributing the .199 grams of cocaine purchased by Investigator Young and for possessing with intent to distribute the 12.72 grams of cocaine found under the truck. The government introduced expert testimony from Officer David Stroud, who testified concerning the roles and behavior of participants in drug trafficking operations. The government put to Stroud an elaborate hypothetical involving three people performing exactly the same actions as the defendants in this case, in exactly the same location, using the same words, and even the same amounts of cocaine. Stroud testified that the scenario suggested to him a common pattern for a cocaine sale; he gave his opinion on who in the described operation was a "runner," who was a "holder," and who "was going to actually make the sale."

Officer Young, who also testified about the transaction, was cross-examined concerning his ability to see Holloman at night and about his later identification of Holloman. In closing argument, Holloman's counsel pressed the theory that Holloman had been misidentified at the time of the arrest. The court, however, declined to give the jury an instruction describing the difficulties often involved in identification testimony and emphasizing that the government must establish the defendants' identification beyond a reasonable doubt.

The jury, rather puzzlingly, acquitted Marks on both counts, convicted Holloman only of distribution of the .199 grams of cocaine (he was acquitted of possession of the 12.72 grams that police found under the pickup truck), and convicted Boney of both offenses. After the verdict had been returned, but before sentencing, Holloman's counsel received a tip that the foreman of the jury was a convicted felon. An investigation by the prosecutor confirmed that the foreman had been convicted of grand theft and taking a vehicle without consent in California and had been arrested for larceny in Arizona. Boney and Holloman claimed that the felon's presence on the jury had violated their Sixth Amendment rights, and they moved for a new trial. The court denied their motion.

Even though Holloman had been acquitted of the possession charge, the court calculated both Boney's and Holloman's sentences by aggregating the weight of drugs involved in both counts (.199 grams on the distribution count and 12.72 grams on the possession count). Under the Sentencing Guidelines, that amount of drugs produces a sentencing range of 63-78 months for each defendant. The district court sentenced Boney to 78 months, but gave Holloman credit for accepting responsibility and sentenced him to 63 months.

Boney and Holloman appeal their convictions. Boney contends that Officer Stroud's expert testimony was inadmissible because it was both unhelpful to the jury under FED.R.EVID. 702 and unduly prejudicial under FED.R.EVID. 403. Holloman charges that the court erred in refusing to instruct the jury on the issue of identification. Both claim that the presence of a felon on the jury violated the Sixth Amendment and requires a new trial. Finally, Holloman also argues that the district court violated the Due Process and Double Jeopardy Clauses of the Fifth Amendment by calculating his sentence based on the weight of drugs involved in a count on which he was acquitted.

II.

We turn first to Boney's challenge to the expert testimony of Officer Stroud. According to Boney, the hypothetical presented by the prosecutor so closely mirrored the facts in this case that by assigning roles to the individuals in the hypothetical, Officer Stroud essentially gave his opinion that Boney and Holloman were playing those roles in a cocaine sale. Boney asserts that such testimony was not helpful to the jury as required by FED.R.EVID. 702 and that it was unduly prejudicial under FED.R.EVID. 403.

We consider appellant's arguments under Rule 702 and Rule 403 separately because only the Rule 702 objection was preserved at trial. ¹ The district court's admission of the expert testimony under Rule 702 is subject to reversal only for abuse of discretion. See United States v. Dunn, 846 F.2d 761, 763 (D.C.Cir.1988). ² Rule 702 permits expert testimony that "assist[s] the trier of fact to understand the evidence or to determine a fact in issue." FED.R.EVID. 702. Under that requirement that expert testimony "assist" the jury (usually referred to as the "helpfulness" requirement), testimony should ordinarily not extend to matters within the knowledge of laymen. Officer Stroud's testimony certainly did not do so. The operations of narcotics dealers repeatedly have been found to be a suitable topic for expert testimony because they are not within the common knowledge of the average juror. See, e.g., United States v Dunn, 846 F.2d 761, 763 (D.C.Cir.1988); United States v. Carson, 702 F.2d 351, 369 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983).

Nevertheless, Boney contends that, although expert testimony on the operations of drug dealers in general may be admissible, Rule 702 prohibits an expert from giving an opinion that a particular defendant played a particular role in alleged criminal activity. His position is that such testimony is barred both because the helpfulness requirement of the rule implicitly prohibits testimony on matters that jurors are expected to infer on their own, and because the testimony comes too close to a direct opinion on guilt or innocence, which would also be proscribed. See, e.g., United States v. Lockett, 919 F.2d 585, 590 (9th Cir.1990). Boney notes that the Second Circuit has expressed "discomfort" with testimony that connects particular defendants to roles in criminal conduct, see Boissoneault, 926 F.2d at 233, and has stated that "an expert should not be permitted to testify that the defendant's actions fit a pattern of conduct which the expert had observed in prior narcotics investigations." United States v. Cruz, 797 F.2d 90, 96 (2d Cir.1986).

Officer Stroud did express an opinion about the actions of the defendants in this case--the government's thinly disguised hypothetical did not render his statements a mere abstract assessment of an imaginary scenario. Nonetheless, Rule 702 does not bar an expert from drawing...