U.S. v. Clarke
| Decision Date | 20 May 1994 |
| Docket Number | Nos. 91-3321 and 91-3323,No. 91-3313,s. 91-3321 and 91-3323,91-3313 |
| Citation | 306 U.S. App. D.C. 251,24 F.3d 257 |
| Parties | , 40 Fed. R. Evid. Serv. 1120 UNITED STATES of America v. Christopher Charles CLARKE, Appellant, And Consolidated Case |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia; 91cr00017-03, 91cr00017-01, 91cr00017-02.
A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs, for appellant Clarke. He also filed the joint brief of statement for jurisdiction, case, and facts for appellants Clarke, Barden, and Cunningham.
James C. Savage, Rockville, MD, (appointed by the Court) argued the cause and filed the brief, for appellant Barden.
Andrew J.J. Delehanty, Washington, DC, (appointed by the Court) argued the cause and filed the brief, for appellant Cunningham.
Michael D. Brittin, Asst. U.S. Atty., argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher and Mark J. Ehlers, Asst. U.S. Attys.
Before: SENTELLE and RANDOLPH, Circuit Judges; and CAMPBELL, * Senior Circuit Judge, United States Court of Appeals for the First Circuit.
Opinion for the Court filed by Senior Circuit Judge CAMPBELL.
The three appellants, Christopher Clarke, Brandon Marcell Barden, and Duane Cunningham, Jr., were tried before a jury in the United States District Court for the District of Columbia and were each convicted on various charges relating to drug trafficking. They appeal jointly, asserting numerous errors in the trial. We affirm.
Charges against appellants developed after the arrest of one Darrell Dennis on December 17, 1990. Dennis was arrested for his role in an unrelated scheme to trade cocaine for a machine gun. After his arrest, Dennis cooperated, proposing to arrange a drug deal with defendant Clarke.
Dennis called Clarke's pager from a secure telephone, and a man whom Dennis said was Clarke called back. While the police taped the conversation, Dennis told the caller that he had a customer who wanted to purchase cocaine. Dennis and the caller planned the details of the transaction, which was to occur later that evening. Dennis could arrange the deal ostensibly because he had previously entered into similar deals with Clarke and his confederates, co-defendants Barden and Cunningham.
Dennis and an undercover officer drove to the designated location, a drugstore parking lot in Washington, D.C., while other officers set up surveillance nearby. Dennis wore a hidden transmitter that permitted the officers to monitor his conversations. Meanwhile, another officer watched the 2300 block of Skyland Place, Southeast, where Dennis had told police that Barden lived and where Dennis had spotted a Pontiac Sunbird he said Barden and Clarke used.
After arriving at the drugstore, Dennis again phoned Clarke's pager from a pay phone. A man identified by Dennis as Clarke called back three times and eventually assured Dennis that Barden and Cunningham would be making the delivery. Barden and Cunningham also called. At about the same time, the officer watching Skyland Place saw Barden go to the trunks of two cars, the Pontiac Sunbird and a nearby Plymouth Reliant. He then saw Barden drive away in a Chevrolet Blazer.
Moments later, Cunningham approached the drugstore on foot and entered the back seat of the undercover police car. Soon thereafter, Barden drove up in the Blazer and parked nearby. Cunningham, meanwhile, asked Dennis where the money was, and Dennis pointed to the undercover officer, then standing outside the car. Cunningham showed Dennis the cocaine.
Using a prearranged sign, Dennis signaled the officers that drugs had been delivered. The teams of officers converged on the parking lot and arrested Barden and Cunningham. Two bags containing a total of 223 grams of crack cocaine were found in the undercover car near where Cunningham had been seated. Recovered from Barden were keys that fit both the Sunbird and the Reliant.
That night and the next day, the police obtained search warrants and searched Barden's home, the Sunbird, and the Reliant. In Barden's home, officers found possible drug trafficking items--a pager and a scale--as well as a few documents with Clarke's name, including a receipt for a plane ticket to Washington from Newark. In the Sunbird, the police found an electronic scale, 274.5 grams of cocaine, and certain documents linking Clarke to the car. In the Reliant, the police found over 600 grams of cocaine, two loaded handguns, and a loaded sawed-off shotgun. Over a month later, the police served a search warrant on Clarke's residence in Maryland and found two pagers, a newspaper clipping about Dennis's arrest in December, and a picture of Clarke with Barden, Cunningham, and another individual.
On April 30, 1991, a grand jury returned a five-count indictment against Clarke, Barden, and Cunningham. The indictment charged the three with essentially the following violations, all alleged to have occurred on December 17, 1990:
Count 1: conspiracy to possess with intent to distribute 50 or more grams of cocaine;
Count 2: possession with intent to distribute 50 or more grams of cocaine (the court instructed the jury that this count related to the cocaine found in the Sunbird);
Count 3: possession with intent to distribute 50 or more grams of cocaine (the court instructed the jury that this count related to the cocaine found in the Reliant);
Count 4: carrying a firearm during a drug trafficking crime;
Count 5: possession of an unregistered sawed-off shotgun.
The trial began on August 2, 1991, and lasted five days. At the end of the evidence, the district court granted a judgment of acquittal for the three defendants as to Count 4, the charge of carrying a firearm during a drug trafficking offense. The jury then deliberated for two days. Barden was acquitted of Count 1, the conspiracy, but was convicted on Counts 2, 3, and 5. Cunningham was convicted on Count 1, and acquitted of the other charges. Clarke was convicted on Counts 1 and 2.
We turn now to the various errors assigned in these appeals.
Appellants argue that the Counts 2 and 3--consisting of two facially indistinguishable counts for possession with intent to distribute 50 grams or more of cocaine base--were multiplicitous. They also argue that when the district court informed the jury that Count 2 related to the drugs found in the Sunbird and that Count 3 related to the drugs found in the Reliant, it constructively amended the indictment.
This court has said that "an indictment is multiplicitous, and thereby defective, if a single offense is alleged in a number of counts, unfairly increasing a defendant's exposure to criminal sanctions." United States v. Harris, 959 F.2d 246, 250 (D.C.Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992). Here, the government argues that notwithstanding the identical language, Counts 2 and 3 relate to different offenses because each pertains to a different cache of cocaine in a different location. One cache was in the Sunbird automobile, the other in the Reliant. Both cars, concededly, were parked close together outside the home of one of the defendants.
Whatever the conceivable merit of the multiplicity argument, it plainly fails here as defendants did not preserve it below. "[O]bjections based on defects in the indictment or information," including an objection to the indictment on the grounds of multiplicity, must be raised before trial. Fed.R.Crim.P. 12(b)(2); Harris, 959 F.2d at 250-51. As defendants did not object to the indictment until after the jury was selected, any complaint based on multiplicity was waived. Fed.R.Crim.P. 12(f) (). See also Davis v. United States, 411 U.S. 233, 242, 93 S.Ct. 1577, 1582, 36 L.Ed.2d 216 (1973) ().
When, at trial, the defendants finally objected, the court overruled the objection and sought to cure any confusion by instructing the jury that Count 2 pertained to the drugs found in the Sunbird and Count 3 pertained to drugs found in the Reliant. The defendants did not object to this instruction, nor did they offer to show cause as to how these two counts, given the clarifying instruction, materially prejudiced them. We can see no prejudice. Only Barden was convicted on both Counts 2 and 3, and even if the charges in these two counts had been consolidated into a single count, the government could have offered the identical evidence to prove his guilt under that count. Barden concedes that, under the sentencing guidelines, his sentence would have been the same had the charges been consolidated into a single count.
The court's instruction, moreover, did not alter the indictment or the elements of any of the charged offenses but merely advised the jury which evidence pertained to which count. Had defendants misunderstood the scope of Counts 2 and 3, so as to be hindered in preparing their defense, they could, prior to trial, have sought a bill of particulars or moved to dismiss. As they did neither, and as they did not object to the court's clarifying instruction, we can only presume that defendants sufficiently understood what the two counts were meant to cover. We see no basis for reversal.
Appellants argue that Count 5 of the indictment, which charged them with possessing the unregistered sawed-off shotgun recovered from the trunk of the Reliant, was improperly joined to the other charges in the indictment. Federal...
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