U.S. v. Catlett

• Citation: 97 F.3d 565,321 U.S.App. D.C. 108
• Decision Date: 11 October 1996
• Docket Number: Nos. 93-3189,s. 93-3189
• Parties: UNITED STATES of America, Appellee v. Darnell A. CATLETT, Appellant. & 93-3194.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 565

97 F.3d 565

321 U.S.App.D.C. 108

UNITED STATES of America, Appellee v. Darnell A. CATLETT, Appellant.

Nos. 93-3189 & 93-3194.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 4, 1996.

Decided Oct. 11, 1996.

Appeals from the United States District Court for the District of Columbia (No. 92cr00366-02) (No. 92cr00366-03).

Lisa B. Wright, Washington, DC, argued the causes for appellants. A.J. Kramer, Federal Public Defender, and Allen E. Burns, Assistant Federal Public Defender at the time the briefs were filed, Washington, DC, were on the briefs for appellant Derrick J. McAllister. James E. McCollom, Jr., appointed by the court, filed the briefs for appellant Darnell A. Catlett.

Ronald W. Sharpe, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, Washington, DC, were on the brief. Elizabeth Trosman, and Elisabeth Poteat, Assistant United States Attorneys, Washington, DC, entered appearances.

Before: EDWARDS, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

Appellants Darnell Catlett and Derrick McAllister were charged with (1) distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; (2) possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; and (3) having used or carried a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). After a mistrial in which the jury could not reach a verdict, Catlett and McAllister were retried and found guilty on all charges.

Both appellants claim (1) that they received ineffective assistance of counsel when their attorneys failed to object to a police officer's testimony as both a "fact" and "expert" witness on the ground that the officer's qualification as an expert would unfairly bolster his credibility as a fact witness and (2) that their trial was rendered fundamentally unfair by the prosecutor's closing arguments. In addition, Catlett claims (1) that, because the police lacked probable cause to arrest him, the District Court erred in denying his suppression motion; and (2) that there was insufficient evidence to support his convictions for distribution and possession with intent to distribute cocaine base. Finally, appellants contend, and the Government concedes, that Catlett's and McAllister's convictions for using a firearm during a drug trafficking offense are invalid under Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995) (holding that the Government must show "active employment" of a gun to prove "use" within the meaning of § 924(c)).

We find that Catlett and McAllister did not receive ineffective assistance of counsel. The representation afforded by counsel is not constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), simply because Catlett and McAllister believe that litigation strategies other than the ones employed by counsel might have been more successful. More importantly, even if counsel were somehow negligent in failing to object to the officer's dual testimony as both a fact and expert witness, appellants have not shown that they were prejudiced by the alleged shortcoming.

Nor do we find that the prosecutor's closing arguments rendered appellants' trial fundamentally unfair. Appellants challenge two comments by the prosecutor, one of which allegedly disparaged defense counsel and the other of which allegedly shifted the burden of proof to the defense and infringed on appellants' right to remain silent at trial. We find that neither comment was improper. Additionally, although the issue of probable cause to arrest Catlett is a close one, the record supports a finding that the police did have probable cause. We also find that sufficient evidence supported Catlett's convictions for distribution and possession with intent to distribute cocaine base. Finally, we agree with the parties that appellants' convictions under 18 U.S.C. § 924(c) must be reversed in light of Bailey, and the case remanded for resentencing.

I. BACKGROUND

On August 26, 1992, at approximately 5:00 p.m., a team of Metropolitan Police Department ("MPD") undercover narcotics officers, including Officers Gregory Bush and Victor Graves, went to the area of First Street and Rhode Island Avenue in Northwest Washington, D.C. to locate and arrest persons involved in the illegal distribution of drugs. Officer Bush, who carried two MPD-issued twenty-dollar bills whose serial numbers he had recorded, walked approximately one block east to the unit block of T Street, N.W. Officer Graves, who was acting as a "spotter," remained in his car to watch Bush and observe any undercover drug transactions.

Just as Officer Bush arrived in the unit block of T Street, N.W., he was approached by a man who identified himself as James Pittiman. Pittiman greeted Bush warmly and offered to help him buy drugs. Officer Bush asked Pittiman to help him buy two "twenties," meaning two rocks of crack cocaine which typically sell for $20 per rock. Pittiman agreed and led Bush a few yards up T Street to a man later identified as Derrick McAllister. Pittiman spoke briefly to McAllister, asking him, "Can you hook me up; can you get me something?" McAllister gestured toward an open alley that ran perpendicular to T Street and told Pittiman and Officer Bush to wait for him there.

Before entering the alley, Officer Bush and Pittiman went inside the T Street Market, a corner grocery store, where Bush exchanged one of the twenty-dollar bills he was carrying for a ten-dollar bill and two five-dollar bills. Bush promised to give Pittiman five dollars if Pittiman could get McAllister to give him two "twenties" for $35. Bush and Pittiman then went into the alley and waited for McAllister.

Meanwhile, Officer Graves, who had observed Officer Bush meet and talk with Pittiman and had seen Pittiman lead Bush to McAllister, continued watching McAllister. Officer Graves observed McAllister walk a few feet westbound on T Street, where he summoned and was joined by Darnell Catlett. Catlett and McAllister then immediately walked together toward a burgundy Pontiac that was parked on the north side of T Street.

From a distance of approximately 120 to 180 feet, Officer Graves saw McAllister enter the front passenger side of the car and reach into the area around the armrest, while Catlett opened and reached into the left side of the trunk. After several seconds, McAllister emerged from the inside of the car, and he and Catlett then walked together on T Street toward the alley where Pittiman and Officer Bush were waiting. Officer Graves could not see whether either McAllister or Catlett had removed anything from the car.

As McAllister and Catlett walked past Officer Graves's car, Catlett made eye contact with Graves. As Graves continued watching the men through his rear view mirror, he saw Catlett turn around and look back at his car. Once Catlett and McAllister had walked into the alley, Officer Graves moved his car up near the mouth of the alley so that he could watch what transpired there.

Inside the alley, McAllister and Catlett met with Pittiman and Officer Bush. Catlett stood at McAllister's side as McAllister handed Pittiman two pieces of white, rock-like substance from a plastic bag. Pittiman then handed McAllister the $35 that Officer Bush had given him. Once McAllister had received the money, McAllister and Catlett walked out of the alley. Officer Bush then handed Pittiman the five dollars he had promised to give him if he could procure two "twenties" for $35.

As Officer Bush left the alley, he signaled to Officer Graves and the arrest team that a drug sale had been completed. Officer Graves broadcast a "lookout" description of Pittiman, McAllister, and Catlett. Meanwhile, Officer Bush performed a field test on the rocks he had received, which produced a positive result for cocaine base.

Members of the MPD narcotics team who heard Officer Graves's "lookout" description stopped Pittiman, McAllister, and Catlett and detained them until Officers Bush and Graves could identify whether they were the suspects. Upon seeing the persons who had been detained, Officer Bush confirmed that Pittiman and McAllister had actually conducted the transaction and that Catlett had been present. Officer Bush was unclear about Catlett's exact role. Officer Graves, however, also positively identified the three suspects and stated that his observations of Catlett justified arresting him.

Thereafter, all three suspects were placed under arrest and searched. The police recovered $35 from Catlett, consisting of a twenty-dollar bill, a ten-dollar bill, and a five-dollar bill, the same amount and combination of bills that Officer Bush had used to purchase the cocaine. Moreover, the serial number of the twenty-dollar bill matched that of the prerecorded MPD funds Officer Bush had used to make the purchase.

The police then searched the burgundy Pontiac into which Catlett and McAllister had reached just prior to entering the alley where the drug transaction was completed. From under the arm rest in the passenger compartment, the police recovered a plastic bag containing ten ziplock bags of crack cocaine, which it was later determined amounted to 6.29 grams of cocaine base, and a nine millimeter pistol. From the left side of the trunk, police recovered a cardboard shoe box containing two guns--a Mac 10 and a loaded .357 Magnum.

Prior to trial, Catlett moved to suppress the money recovered from him at the time of his arrest and any out-of-court identifications, arguing that the police lacked probable cause to arrest him. The District...