U.S. v. Durham, 05-30403.

• Decision Date: 22 September 2006
• Docket Number: No. 05-30403.,05-30403.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessica DURHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.3d 976

UNITED STATES of America, Plaintiff-Appellee, v. Jessica DURHAM, Defendant-Appellant.

No. 05-30403.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2006.

Filed September 22, 2006.

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Steven C. Babcock (argued) and Anthony R. Gallagher, Federal Defenders of Montana, Billings, MT, for the plaintiff-appellant.

Marcia Hurd (argued) and William W. Mercer, Office of the United States Attorney, Billings, MT, for the defendant-appellee.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, Senior District Judge, Presiding. D.C. No. CR-04-39-BLG-JDS.

Before A. WALLACE TASHIMA and WILLIAM A. FLETCHER, Circuit

Judges, and LOUIS H. POLLAK,^* District Judge.

POLLAK, District Judge:

On January 11, 2005, following a bench trial, the District Court found that defendant-appellant Jessica Durham ("Ms.Durham") knowingly distributed a small quantity of marijuana to her eighteen-month-old daughter, Michala Durham ("Michala").¹ Accordingly, Ms. Durham was convicted of knowingly and unlawfully distributing marijuana to a person under the age of twenty-one, in violation of 21 U.S.C. §§ 841(a)(1),² 859(a).³ She was sentenced to a five-year term of imprisonment.⁴

On appeal, Ms. Durham argues that testimony against her was improperly admitted and that the prosecution's evidence was insufficient to support her conviction. We find these arguments lacking in merit and affirm Ms. Durham's conviction. She also argues that her five-year sentence should be vacated because the applicable statutory maximum is two years. With this contention, we agree. We, therefore, vacate Ms. Durham's sentence and remand for resentencing.

I.

Events which occurred in early February 2004 form the factual predicate for Ms. Durham's conviction. We recount them here in some detail, based upon the District Court's findings of fact and our review of the record.

On February 3, 2004, Brandi Nichols visited Ms. Durham's apartment to help Ms. Durham prepare for an upcoming move out-of-state — from Montana to Washington. Ms. Nichols has a lengthy history of smoking marijuana, and testified that she had, on several prior occasions, smoked with Ms. Durham, with whom she had been friends since 2002.

Ms. Nichols testified that during her February 3rd visit she saw Ms. Durham provide Michala with a lit marijuana water pipe and allow Michala to inhale from the water pipe.⁵ According to Ms. Nichols's testimony, Ms. Durham prepared the water pipe for use, before giving it to Michala, by scraping matter from the inside of the water pipe, refilling the pipe with that substance, lighting it, and sucking some smoke up through the water into the pipe.

Ms. Nichols acknowledged that she did not have any personal knowledge of how or when the water pipe had previously been used. However, she explained that, based on her extensive experience as a marijuana smoker for over twenty years, she recognized the substance which Ms. Durham scraped from the inside of the water pipe as marijuana residue — that is, the burnt residue left on or in a pipe after smoking marijuana. Ms. Nichols further observed that the residue contained "chunks" of marijuana.

According to Ms. Nichols, after Michala inhaled from the water pipe, Ms. Durham and Ms. Nichols also smoked from the water pipe, which remained filled with the same burnt residue. Ms. Nichols testified she could tell — based on her familiarity with marijuana, and given the taste and smell of the substance and its effect on her — that the substance she was smoking was marijuana. In sum, Ms. Nichols opined that the substance present in the water pipe when given to Michala contained marijuana.

Ms. Nichols stated that she was upset by what she witnessed, and decided to return to Ms. Durham's apartment the following day to obtain photographic evidence. She testified that on February 4th she photographed Ms. Durham handing the water pipe, containing lit residue, to Michala, and then photographed Michala inhaling from the pipe. Ms. Durham concedes that the pictures show Michala's face "in contact with the top of a bong, and in one of those photos, the glass chamber of the bong arguably contains smoke." Defendant-Appellant's Br. at 8.⁶

On February 6th, Ms. Nichols contacted the local authorities; she provided them with the photographs and gave a statement, claiming Ms. Durham shared marijuana with her eighteen-month old daughter. Ms. Durham was arrested later that day, and Michala was removed from her custody and placed in foster care. When questioned by Jacqui Poe, a social worker from the Department of Child and Family Services ("D.C.F.S."), Ms. Durham denied having provided marijuana to her daughter. Urinalysis of Michala conducted around February 10th was negative for narcotics, including marijuana.

On February 11th, Detective Denver Cobb interviewed Ms. Durham, and she reportedly admitted that Michala had taken up to "five hits" from the lit water pipe. According to Detective Cobb, Ms. Durham did not claim that the residue in the water pipe used by Michala was from a substance other than marijuana or that she believed it to be any other substance. Indeed, Detective Cobb's testimony indicates that Ms. Durham believed that Michala was under the influence of marijuana for at least some period of time. Ms. Durham allegedly remarked that smoking improved Michala's appetite and left Michala lethargic and mellow — a manner she found consistent with her own experience smoking marijuana.

II.

Before trial, Ms. Durham sought to preclude Ms. Nichols's drug identification testimony — that is, Ms. Nichols's testimony that the burnt residue smoked by Michala was, in fact, marijuana. Ms. Durham argued that, as a lay person, Ms. Nichols lacked the expertise required to give that type of opinion testimony. The District Court ruled that, under the circumstances, while Ms. Nichols would not be deemed a "scientific expert in drug identification," she would be allowed to provide lay opinion testimony regarding the identity of the substance at issue.

To prove a violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 859(a), the Government was required to establish beyond a reasonable doubt: that Ms. Durham (i) knowingly and intentionally (ii) distributed⁷ (iii) a controlled substance — in this case, marijuana — to Michala Durham; (iv) that Ms. Durham was over the age of eighteen; and (v) that Michala was under the age of twenty-one.

The District Court found that Ms. Nichols's testimony was both appropriate and credible. Combined with other evidence presented,⁸ the District Court determined that the Government had satisfied its burden. Thus, the court found, beyond a reasonable doubt, that Ms. Durham, an adult, had knowingly distributed marijuana to Michala Durham, a minor.

Following the trial, the District Court ruled that 21 U.S.C. § 841(b)(4) and 21 U.S.C. § 859(a) were, in combination, the applicable sentencing statutes. Accordingly, Ms. Durham was deemed eligible for a sentence of probation and a term of imprisonment of no more than two years. However, at sentencing, the District Court imposed a five-year sentence, to be followed by four years of supervised release.

III.

The District Court's construction or interpretation of either a statute or the Federal Rules of Evidence, including whether particular evidence falls within the scope of a given rule, is subject to de novo review. See United States v. Leon H., 365 F.3d 750, 752 (9th Cir.2004); United States v. Sioux, 362 F.3d 1241, 1244 n. 5 (9th Cir.2004); United States v. Lillard, 354 F.3d 850, 853 (9th Cir.2003) (citing United States v. Smith, 282 F.3d 758, 768 (9th Cir.2002)). Once it has been determined that challenged evidence falls within the scope of a given rule, the District Court's decision to admit the evidence is reviewed for abuse of discretion. See Smith, 282 F.3d at 768 (citing United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir.1993)).

The applicable standard for reviewing the sufficiency of the evidence to support a criminal conviction is whether "`viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Spears, 631 F.2d 114, 117 (9th Cir.1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

IV.

A. Admissibility of Ms. Nichols's Drug Identification Testimony

Federal Rule of Evidence 701 allows a lay witness to give opinion testimony provided it is "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of [the witness's] testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

Given the Rule's first two limitations, opinion testimony of lay witnesses must be "`predicated upon concrete facts within their own observation and recollection — that is facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts.'" United States v. Skeet, 665 F.2d 983, 985 (9th Cir.1982) (quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 847-48 (10th Cir.1979)).

The Rule's final limitation — excluding lay opinion testimony of the type that would normally fall under the purview of Rule 702⁹ — was added in 2000. Ms. Durham argues that Ms. Nichols's testimony that the burnt residue was, or contained, marijuana contravened this component of Rule 701. However, the advisory committee notes discussing the 2000 amendment to Rule 701 offer this highly instructive passage:

[C]ourts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established. See, e.g., United States v. Westbrook, 896 F.2d 330 (8th Cir.1990) (two lay witnesses who were heavy...