U.S. v. Doe
| Decision Date | 15 May 1990 |
| Docket Number | Nos. 88-3146,88-3148 and 88-3167,s. 88-3146 |
| Citation | 903 F.2d 16,284 U.S. App. D.C. 199 |
| Parties | , 30 Fed. R. Evid. Serv. 347 UNITED STATES of America v. John DOE, a/k/a Louw S. Smith, Appellant. UNITED STATES of America v. Gregory A. NOSE, a/k/a Robert Butler and Gregory Johnson, Appellant. UNITED STATES of America v. Tarvis NEWSOME, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mary E. Davis, Washington, D.C., was on the brief, for appellant in No. 88-3146.
Dennis M. Hart, Washington, D.C., appointed by this Court, was on the brief, for appellant in No. 88-3148.
Robert A. Long, Jr., appointed by this Court, with whom Mitchell Dolin, Washington, D.C., was on the brief in No. 88-3167, for appellant.
Kirby D. Bejre, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Helen M. Bollwerk and Elizabeth Trosman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before EDWARDS, Circuit Judge, ROBINSON, Senior Circuit Judge, and REVERCOMB, District Judge. *
Opinion for the Court filed by Senior Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Appellants seek reversal of their convictions on drug and firearms charges. 1 Several claims of prejudicial error are staked out, but we deem it appropriate to address only two: improper admission of testimony by an expert witness, and improper argument to the jury by the prosecutor. We find merit in these contentions and accordingly reverse.
Suspecting drug activity in an apartment, police officers engaged an informant to make a purchase therein. The informant reported that a person who spoke with a Jamaican accent sold him crack at the back door. The police then obtained a search warrant and uncovered drugs, drug paraphernalia, firearms and ammunition in the apartment. 2 There, at the time, were John Doe and Gregory Nose, who are Jamaican, and Tarvis Newsome and Herman Robinson, who are black Americans, and the police arrested them all. Subsequently Robinson entered into a plea bargain with the Government. 3
Prior to selection of the jury, counsel for Newsome called attention to media accounts of threats by Jamaican drug gangs on the life of the Mayor of Annapolis. Expressing concern that this publicity may have affected one or more of the prospective jurors, counsel sought permission to probe during voir dire for possible bias against Jamaicans. The request was granted, and the three defense attorneys jointly framed four questions which were put to the jury venire by Newsome's counsel. 4
Robinson was the Government's star witness at trial. He testified that he lived in the apartment with Louise Brown, his common law wife, and their three children. To obtain much-needed income, he said, he rented a room to Nose, who promptly assumed control over the premises. Nose, Robinson asserted, moved Newsome and her boyfriend in as occupants, brought in drugs and, together with Doe and Newsome, used the apartment as a base for drug-preparation and -distribution. Drugs were sold inside and at the back door of the apartment, Robinson added, and were delivered to runners for outside sale. Robinson insisted that he was afraid of Nose because he was armed and intimidating.
The Government called as an expert witness Detective Dwight A. Rawls, who, over objection by defense counsel, was allowed to describe the "modus operandi" of Jamaican drug dealers. "The Jamaicans," he said, "have had a phenomen[al] impact on the drug trade in the District of Columbia," 5 and the market "has been taken over basically by Jamaicans." 6 During the trial, the prosecutor frequently adverted to "the Jamaicans"--in his references to appellants as well as to others--and in summation to the jury he stressed Rawls' theses that Jamaicans had "taken over" the local drug traffic, and were commandeering the apartments of Washingtonians and using them as preparation and distribution centers.
The defense was that Robinson, not appellants, operated the drug enterprise. An assortment of evidentiary items tended to discredit Robinson's testimony at least to some extent. Robinson had been a cocaine addict for years, 7 and recently had served time for a cocaine offense. 8 As a result of his plea bargain and cooperation with the Government in the case at bar, his sentence was only three months of confinement, accompanied by a recommendation that it be served in a halfway house. 9 Brown, who had corroborated Robinson somewhat, likewise was heavily addicted to cocaine. 10 A defense witness testified that some of the drug paraphernalia seized in the apartment belonged to Robinson, 11 and that Robinson had admitted that he sold drugs when earlier he lived in New York. 12 The Government's fingerprint specialist stated that latent prints were found on drug containers and weapons, but that there were no positive comparisons between any of them and those of appellants. 13 Newsome avowed that she neither possessed nor sold cocaine or crack at any time, 14 and that she was merely a visitor in the apartment when the police came in. 15 Appellants were ultimately convicted on all charges, however, and sentenced to lengthy terms of imprisonment.
Appellants protest the admission of Detective Rawls' testimony 16 on the ground that evidence of illegal activity by Jamaicans other than Doe and Nose was irrelevant and highly prejudicial, and thus violative of Federal Evidence Rules 402 and 403. 17 The Government counters with argument that Rawls' testimony was proper in rebuttal of appellants' efforts to show that Robinson lied when he told the jury that appellants had forcibly taken his apartment over and conducted drug operations against his will. The Government also contends that "the expert testimony concerned the activities of [only] Jamaican drug dealers, not all Jamaicans," and that "[t]he limited nature of this testimony, and the court's instruction regarding the manner in which the jury was to consider expert testimony ... served to minimize the possibility that the testimony would appeal to juror bias." 18
As major support for its position, the Government relies heavily upon the Second Circuit's decision in United States v. Khan. 19 At issue there was testimony concerning the price of heroin in Pakistan, the practice among Pakistani dealers of selling heroin on credit, and the sameness of dress among Pakistanis generally, irrespective of economic status. The court held the testimony admissible for purposes of contradicting assertions by the accused that he could not have been a major drug dealer because he was a poor man. The court also rejected as frivolous the claim that such evidence " 'subliminally appeal[ed] to guilt by association and potentially to prejudice against foreigners.' " 20
As we have recently observed, "[f]ederal courts often permit experts to testify on narcotics operations because jurors are commonly unfamiliar with the methods by which drug dealers attempt to conceal their activities." 21 But we have also recognized that "there is often an inherent danger with expert testimony unduly biasing the jury '[b]ecause of its aura of special reliability and trust[worthiness].' " 22 As a matter of trial fairness, courts should scrutinize such testimony when it becomes potentially harmful; as a legal matter, we shall see, they must do so.
In his opening statement to the jury, the prosecutor made known that Rawls would testify as an expert on "preparation" and "distribution" of cocaine and crack in Washington. 23 It is evident, however, that in substantial part the officer's testimony went far beyond these topics. Rawls avowed that "the retail market has been taken over basically by Jamaicans," and that "the local dealers were being replaced ... by groups of people that were coming in from other places," who "in many cases" were Jamaicans. 24 These statements hardly described for the jury the modus operandi of drug dealers, Jamaican or otherwise, nor could they have provided legitimate assistance to the jurors in determining whether appellants committed the offenses charged. 25 Instead, they focused on monopolization of the local drug market by dealers tracing their ancestry to Jamaica, and strongly suggested that appellants were guilty because two of them are Jamaican. Rawls' testimony obviously had a much broader sweep, and a greater capability of prejudice, than the testimony at issue in Khan, which pertained to credit sales to Pakistani drug dealers and the apparel preferred by all Pakistanis, and thus was highly relevant in rebuttal of Khan's defense that he was too poor to operate a dealership. In contrast, Rawls' testimony that Jamaicans were taking over the retail drug trade had no bearing upon any claimed defense or other issue at trial, and was openly allusive in linking the drug charges to appellants solely on the basis of the ancestry of two of them.
Federal Evidence Rule 402 provides that "[e]vidence which is not relevant is not admissible." 26 We think this directive demanded exclusion of Rawls' narration of the so-called Jamaican takeover of the Washington drug market. " 'Relevant evidence,' " Rule 401 says, "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 27 Irrelevance is not defined, but it is clear that any evidence failing the test of Rule 401 is "not relevant" under Rule 402. 28 By our appraisal, the testimony on the takeover of the drug traffic did not make the grade on relevance, and should have been excluded. Indeed, its admission encroached upon a right valuable to everyone accused of crime, for "[a]n important element of a fair trial is that a jury consider only relevant and competent evidence...
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