U.S. v. Douglas

• Decision Date: 13 April 2007
• Docket Number: No. 05-3027.,05-3027.
• Parties: UNITED STATES of America, Appellee v. Deon DOUGLAS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

482 F.3d 591

UNITED STATES of America, Appellee v. Deon DOUGLAS, Appellant.

No. 05-3027.

United States Court of Appeals, District of Columbia Circuit.

Argued February 22, 2007.

Decided April 13, 2007.

Appeal from the United States District Court for the District of Columbia (No. 02cr00487-01).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief for the appellant.

Patricia A. Heffernan, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III and David B. Goodhand, Assistant United States Attorneys, were on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

Deon Douglas (Douglas) was indicted on one charge of possessing with intent to distribute (PWID) five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The government moved to admit evidence of Douglas's prior arrest for PWID pursuant to Federal Rule of Evidence 404(b) (Rule 404(b)), arguing that it was relevant to Douglas's knowledge and intent regarding the pending PWID charge. In response, Douglas asserted that the prejudicial impact of the evidence substantially outweighed its probative value, making it inadmissible under Federal Rule of Evidence 403 (Rule 403). After conducting two evidentiary hearings, the district court admitted the prior arrest evidence and a jury convicted Douglas on the PWID charge. Douglas now appeals. As set forth below, we affirm the district court's admission of the Rule 404(b) evidence.

I.

On November 7, 2002, members of the Metropolitan Police Department's (MPD) "Focused Mission Team" drove "between three and four" unmarked vehicles into the cul-de-sac at 59th Place in northeast Washington D.C., "a high drug area for sales of crack cocaine." 2/19/04 Tr. 155-56, 158.¹ As the officers entered 59th Place they observed Douglas standing in the cul-de-sac "beside a blue . . . Honda Prelude," id. at 157, and "leaning towards" a nearby idling car "to talk to someone in the car," 2/20/04 (a.m.) Tr. 6-7. Douglas "looked square, directly towards" the approaching vehicles "and then immediately took off running" in the direction of East Capitol Street. 2/19/04 Tr. 47-48; 2/20/04 (a.m.) Tr. 7. In response, three MPD officers exited their vehicles and pursued Douglas. 2/19/04 Tr. 48, 158-59; 2/20/04 (a.m.) Tr. 7-8. The officer leading the pursuit, Peter Sheldon (Sheldon), followed "about . . . 5 to 10 feet" behind Douglas as he ran down an alley and past the intersection of East Capitol Street and Sixtieth Street. 2/19/04 Tr. 48. As the two men ran through the alley, Sheldon noticed that Douglas had a clear plastic bag, resembling "[a] sandwich bag," in his hand. Id. at 103. Thereafter, Sheldon observed Douglas "throwing [the plastic bag] into the trash can" at the intersection of East Capitol Street and Sixtieth Street—where the alley reconnects with the main roadway—"and then continuing down the sidewalk." Id. at 106.²

Sheldon stopped abruptly "to recover whatever [Douglas] had tossed in the trash can." Id. at 49. The other officers, however, rushed past Sheldon and maintained the pursuit through a wooded area between Sixtieth Street and Southern Avenue, id. at 161; 2/20/04 (a.m.) Tr. 14, ultimately apprehending Douglas "crouched down behind some bushes kneeling in the dirt," id. at 14-15.³ While the other officers continued to chase Douglas, Sheldon looked into the trash can, which "was almost half-filled with water," and observed the clear plastic bag floating with other debris. 2/19/04 Tr. 50. A crime scene search officer then arrived to photograph the plastic bag inside the trash can, id. at 109-10, after which Sheldon removed the plastic bag and discovered that it "contained 54 Ziplocs . . . packaged with a white rock substance," id. at 55. Sheldon "conducted a field test" of the white substance, "which had a positive color reaction for the presence of cocaine," id., and a Drug Enforcement Administration (DEA) chemist subsequently confirmed that the recovered plastic bag contained 7.4 grams of crack cocaine, 2/23/04 Tr. 99, 103, 104.

Based on these events, Douglas was indicted on one count of PWID five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(iii).⁴ See Appendix for Appellant (Appx.) at 20. The government moved in limine to admit evidence pursuant to Rule 404(b) establishing that, on August 24, 2001, Douglas was arrested at 58th Street in northeast Washington, D.C. for selling crack cocaine to an undercover MPD officer. See id. at 22-23. The government argued the evidence was admissible under Rule 404(b) because it "illustrate[d] [Douglas's] opportunity to possess the cocaine" found in the trash can upon his arrest on November 7, 2002 as well as "his motive and intent to distribute it, and the absence of mistake." Id. at 24. Douglas responded by asserting that the probative value of his August 2001 PWID arrest was substantially outweighed by its unfairly prejudicial impact because, "[e]ven with a limiting instruction, jurors will have a difficult time resisting the natural human impulse to make the impermissible inference that someone who has previously broken the law is more likely to break the law on a subsequent occasion," Appx. at 35, and thus the evidence should be excluded under Rule 403. Following an evidentiary hearing, the district court granted the government's motion in limine, concluding that the prior arrest evidence was "proffered for reasons other than to show bad character, specifically, that . . . Douglas had the intent to commit the crime charged . . . and had knowledge," 4/24/03 Tr. 111-12, and, consequently, admissible under Rule 404(b), id. at 114.⁵

At trial, the government provided the testimony of Officers Sheldon, Black and Moore to describe their pursuit and arrest of Douglas on November 7, 2002. In addition, the government presented the testimony of an expert in narcotics sales and distribution in Washington, D.C., 2/20/04 (p.m.) Tr. 73, who stated that an individual drug user "buy[s] a little bit [of crack] at a time to satisfy [his] craving," id. at 97, and thus would not have purchased the quantity of crack cocaine discovered in the trash can by Sheldon; instead, the expert opined, such a quantity was likely intended for sale, id. at 96-98. Douglas sought to impeach Sheldon, the only witness linking Douglas to the plastic bag, by noting that Sheldon's trial testimony regarding the recovery and field testing of the crack cocaine, see 2/19/04 Tr. 111 ("I conducted the field test."), differed from his earlier testimony in support of the government's in limine motion, id. at 112-14. Douglas also presented a forensic chemist as an expert witness, see 2/24/04 Tr. 80-83, to challenge the DEA's methodology in testing the substance recovered from the ziplock bags, id. at 103-04, 117-18. Indeed, Douglas's expert opined that the DEA's method did not "substantiate[ ]" the conclusion that the recovered substance was crack cocaine, 2/25/04 Tr. 42, as opposed to "imitation crack" such as hard soap, id. at 40.

Before the government presented evidence of Douglas's August 2001 PWID arrest at trial, Douglas renewed his objection to its admissibility. See 2/19/04 Tr. 209. The district court, believing that under Rule 403 "it's really necessary to hear [the Rule 404(b) evidence] in order to determine whether or not that evidence should really come in," 2/20/04 (a.m.) Tr. 49, heard—in the absence of the jury—the government's evidence of Douglas's prior PWID arrest, namely testimony of the arresting officers and the undercover officer to whom Douglas sold the crack cocaine, see 2/23/04 Tr. 5-40. After hearing further arguments from the parties, the district court admitted the evidence because Douglas's August 2001 PWID arrest "would go to the question of intent to distribute, which is a required element of the charged offense." Id. at 64. Indeed, the district court concluded that "the fact of [prior] distribution of drugs certainly goes to the fact that the possession of the drugs [in the charged offense] was, indeed, with the specific intent to distribute," id. at 64-65, and that the link to intent "and perhaps . . . knowledge would make this evidence admissible" under Rule 404(b), id. at 65.

Thus, on the afternoon of February 23, 2004, the government presented the Rule 404(b) evidence of Douglas's August 2001 PWID arrest. The following day, the district court instructed the jury on the proper use of this evidence:

If you consider this evidence, you may use that evidence only to help you decide whether the government has proven beyond a reasonable doubt that the defendant possessed the evidence in this case with the specific intent to distribute cocaine base, and that he acted knowingly and intentionally and with knowledge that the substance in fact was cocaine base.

You may not consider that evidence for any other purpose. You may not consider the evidence to conclude that the defendant has a bad character or that he has a criminal personality. The law does not permit you to convict a defendant simply because you believe he has committed other things not specifically charged in this case.

You may not conclude from this evidence that because the defendant may have allegedly sold cocaine to an undercover police officer on August 24, 2001, that he necessarily committed the acts charged in the indictment in this case.

You may . . . only consider the evidence for the limited purpose of showing whether the defendant, if he possessed cocaine in this case, did so knowingly and intentionally with the specific intent to distribute.

The defendant is on trial only for the crime charged in this case, and you may only consider the prior alleged acts on the issue of...