U.S. v. Cicero, 92-3222

• Decision Date: 10 May 1994
• Docket Number: No. 92-3222,92-3222
• Citation: 22 F.3d 1156
• Parties: , 40 Fed. R. Evid. Serv. 1075 UNITED STATES of America, Plaintiff-Appellee, v. Kendrick Albert CICERO, a/k/a Kenny, a/k/a Diamond, a/k/a Paul Haynes, a/k/a Albert Kenrich Cicero, Defendant-Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1156

22 F.3d 1156

306 U.S.App.D.C. 74, 40 Fed. R. Evid. Serv. 1075

UNITED STATES of America, Plaintiff-Appellee, v. Kendrick Albert CICERO, a/k/a Kenny, a/k/a Diamond, a/k/a

Paul Haynes, a/k/a Albert Kenrich Cicero,

Defendant-Appellant.

No. 92-3222.

United States Court of Appeals, District of Columbia Circuit.

Argued April 7, 1994.

Decided May 10, 1994.

Appeal from the United States District Court for the District of Columbia.

Howard F. Bramson (appointed by the Court), argued the cause and filed the brief for appellant.

James A. Meade, Asst. U.S. Atty., argued the cause for appellee. With him on the briefs were J. Ramsey Johnson, U.S. Atty. at the time the briefs were filed, and John R. Fisher, Roy W. McLeese, III, and Robert T. Swanson, Asst. U.S. Attys.

Before WALD, EDWARDS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Opinion concurring in part and concurring in the result filed by Circuit Judge SENTELLE.

WALD, Circuit Judge:

Appellant Kendrick Cicero was convicted after a jury trial of one count of conspiring to distribute cocaine, in violation of 18 U.S.C. Sec. 2 (1988) and 21 U.S.C. Sec. 841(a)(1) (1988), and five counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988). On appeal, Cicero challenges the district court's "on or about" jury instruction with respect to two of the five counts of possession with intent to distribute. He also argues that the district court erred by admitting into evidence telephone numbers that were given to the District of Columbia Pretrial Services Agency by two of his alleged accomplices. Because we find that the district court's refusal to modify the "on or about" instruction was harmless error and because the phone numbers are a matter of public record and fall within the business record exception to the hearsay rule, we affirm appellant's conviction.

I. BACKGROUND

The chain of events leading to appellant's arrest began on March 15, 1991, when the government arrested Sandra Neal and found drugs, drug paraphernalia, a gun, and over $1,000 in her apartment at 471 Orange Street, S.E. Neal agreed to become a government informant, and told officers of the Metropolitan Police Department that Cicero was selling cocaine from an apartment at 525 Mellon Street, S.E. On October 17, 1991, police officers broke down the door of the Mellon Street apartment and found Cicero and Alexander Rubinstein in the bedroom. Cicero was sitting on a bed with his coat next to him. Inside the coat, the police found a wallet and 77 small ziplock bags of crack cocaine. The wallet contained picture identification and a business card, which had two telephone numbers written on the back, with "Sandy" written next to one number and "Alex" written next to the other. Over the objection of defense counsel, the trial court permitted the admission into evidence of two D.C. Pretrial Services Agency reports which indicated that the numbers provided to the agency by Rubinstein and Neal at the time of their arrests matched the numbers written on the back of the business card. The police officers arrested both Cicero and Rubinstein. On Rubinstein, they found an Amtrak ticket stub dated September 27, 1991 for travel from New York City to Washington, D.C.

After his arrest, Rubinstein agreed to cooperate with the government. Rubinstein generally remembered transporting drugs for appellant from New York to Washington, D.C. approximately ten times and specifically recalled having been a courier for Cicero on the date of their arrest and on four other occasions in the two months prior to the arrest. Three of these other four trips formed a basis for separate counts in the indictment against appellant--September 13, 1991 (Count Three), September 27, 1991 (Count Four), and October 9, 1991 (Count Five). Only the September 13th and the October 9th trips are at issue in this appeal.

At trial, Rubinstein testified that he transported cocaine into Washington, D.C. for Cicero on September 13, 1991. Rubinstein explained that he went to Cicero's house in New York late in the afternoon of September 12th and that Cicero gave him the drugs, along with money for train fare. Rubinstein stated that he arrived by train in Washington at approximately 12:30 a.m. on the 13th, delivered the drugs to Cicero, and stayed with Cicero until between 1:00 p.m. and 3:00 p.m., when Rubinstein left to go back to New York. Rubinstein was able to remember that this trip occurred on the 13th because "it was two weeks prior to [the September 27th trip]," for which the train stub verified the date. As to the October 9th excursion, Rubinstein recalled the date because he remembered making a trip a week prior to his arrest on October 17th. Rubinstein testified that on October 9, 1991, Cicero gave him the drugs at Cicero's house in New York between 5:00 p.m. and 6:00 p.m. Again, Rubinstein took the train to Washington, D.C where he met Cicero and then went to the apartment at 525 Mellon Street. According to Rubinstein, he and Cicero arrived at the apartment between midnight and 1:00 a.m. on October 10, 1991. Rubinstein stayed with Cicero in D.C. for approximately three days before they both returned to New York.

Cicero countered Rubinstein's testimony as to the September 13th and October 9th offenses with an alibi defense, arguing that he could not have been in Washington on these dates. As evidence, Cicero pointed out that he signed the log book at his daughter's day care center in New York on September 13th and on the mornings of October 8th and 10th. The director of the day care center testified that the log book is used to keep track of children entering and leaving the center between 8:00 a.m. and 5:45 p.m., but sometimes parents may sign in and not sign out. The log book indicated that at 8:30 a.m. on September 13, 1991, the mother of appellant's daughter signed in and that later in the day, appellant signed the same page of the book but did not list the time. In addition, the log book demonstrated that on October 8th, and again on October 10th, Cicero signed his daughter in to the day care center, and that on October 9, 1991 he signed her out, all at unspecified times. A handwriting expert testified that the handwriting in the log book matched that of appellant, but the director of the center had not seen Cicero sign in or out on any of the dates at issue.

At the end of the trial, defense counsel admitted that the "on or about" jury instruction ¹ "of course, is correct, in this case" but requested that the court include an "addendum" to the instruction:

Because without it, even though Mr. Rubinstein is the only witness who swore that he was positive of the dates of September 13 and October 9 ... [the "on or about"] instruction ... would, I believe, impermissibly allow the jury to say, "Well, maybe he was down on the 7th or maybe he was down on the 15th. The Judge said that if it's close enough, we can find him guilty." My defense was based on the government's, responding to the government's case, and the government's case made specific reference to specific dates.

Trial Tr. IV at 51 (Apr. 16, 1992). Defense counsel suggested an addendum along the following lines:

In this case, there was testimony offered that the defendant committed criminal acts.... [W]hen the testimony from a witness is to a date specific, you should consider that testimony in arriving at your verdict.

Id. Although the reasons defense counsel gave for requesting the addendum were less than completely precise, he was clearly concerned that because the alibi defense responded to the specific dates on which the government focused both in the indictment and at trial, the district court should guide the jury on reconciling the deliberate generality of the "on or about" instruction with the attempt of an alibi defense to pinpoint those specific dates. ² The district court at first agreed that the "on or about" instruction should be amended to read "However, the government's witnesses have testified to dates that they assert on which the offenses occurred," [or] something like that ... just to tell them that the government did present evidence [of specific dates].

Trial Tr. IV at 53-54. After discussing Rubinstein's testimony regarding the September 13th and October 9th trips, however, the district court appeared to change its mind about the need for the addendum:

All right, based upon that review of the testimony, I'm going to deny the defendant's request and leave in that, because I don't think it's certain in his testimony, Mr. Rubinstein's, that those dates were the exact dates.... But I think that that's fair as to overall approach for the jury to use that instruction.

Id. at 55. Although the trial judge's statement is not crystal-clear on the point, it seems more than likely that in "deny[ing] defendant's request" the trial court was deciding that an addendum would eviscerate the "on or about" instruction, especially because defense counsel already had specifically agreed to the issuance of that instruction and had only requested an addendum. Such an interpretation is supported by the language of the actual "on or about" instruction given to the jury, which did not include any qualifying addendum. Immediately after the "on or about" jury instruction, the district court gave the standard "alibi" instruction. The jury returned verdicts of guilty on all six counts on April 16, 1992, and the next day Cicero was sentenced to six concurrent terms of 240 months, a special assessment of $300, and a fine of $150,000.

II. ANALYSIS

A. "On or About" Jury Instruction

On appeal, Cicero contends that when the government offers some evidence that a crime was committed on a certain date and the defense presents contrary evidence of an alibi for that date, it is reversible error for the district court to give an "on or about" jury instruction. ³ The government responds that the issuance...