U.S. v. Fennell

• Citation: 53 F.3d 1296,311 U.S.App. D.C. 332
• Decision Date: 17 July 1995
• Docket Number: No. 93-3064,93-3064
• Parties: UNITED STATES of America, Appellee, v. Sean M. FENNELL, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1296

53 F.3d 1296

311 U.S.App.D.C. 332

UNITED STATES of America, Appellee, v. Sean M. FENNELL, Appellant.

No. 93-3064.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 9, 1995.

Decided May 5, 1995.

Order on Petition for Rehearing July 17, 1995.

Appeal from the United States District Court for the District of Columbia (No. 92-365-2).

A.J. Kramer, Federal Public Defender, Washington, DC, argued the cause and filed the briefs, for appellant. William G. Spencer, Washington, DC, entered an appearance.

Glenn L. Kirschner, Asst. U.S. Atty., Washington, DC, argued pro hac vice, for appellee. On the brief for appellee were Eric H. Holder, Jr., U.S. Atty., John R. Fisher and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, DC.

Before WALD, SILBERMAN and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

On the evening of August 28, 1992, District of Columbia Metropolitan Police Department officers executed a search warrant for the two ground floor apartments of a four-unit apartment building in Northeast Washington. The police testified that they knocked, announced their presence, received no response, and began using a battering ram repeatedly on the outside door. Over two minutes elapsed before they gained entry to the building. One of the officers testified that during that time he heard people move from the left-side apartment to the right-side apartment. Once inside the building, the police found the door to Apartment 1, left of the entrance, open, with the television and lights on but no one home. Over thirteen grams of cocaine base (crack), along with cocaine cutting and packaging equipment, were on the dining room table and elsewhere in Apartment 1. Across the hall in Apartment 2, the police found resident Cyrenna Belton, her infant son, her 13-year-old cousin, and defendants Sean Fennell and Martel Beasley. The police recovered a loaded handgun from the floor of Belton's bedroom closet.

Fennell and Beasley were tried separately for possession of cocaine base with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B)(iii). Fennell was also tried for four gun offenses: using or carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c)(1); possession of a firearm while under a separate felony indictment, in violation of 18 U.S.C. Sec. 922(n); possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. Sec. 922(k); and carrying a pistol without a license, in violation of 22 D.C.Code Ann. Sec. 3204(a). Presenting no defense evidence, Fennell moved for a judgment of acquittal on all counts, which the court denied. Largely on the basis of circumstantial evidence, the jury convicted Fennell on all counts. The court sentenced Fennell to 138 months in prison.

Fennell now challenges the district court's denial of his motion for judgment of acquittal, arguing that the evidence was insufficient to support the jury verdicts on each count. He also challenges remarks to the jury about his prior felony indictment, the admission of an expert's testimony, two statements in the prosecutor's closing argument, and one jury instruction. In addition, he alleges ineffective assistance of counsel. We affirm all of Fennell's convictions except possession of a firearm with an obliterated serial number, which the government agrees we must reverse. We do not reach Fennell's ineffective assistance claims because he failed to raise them below in his motion for relief from imprisonment under 28 U.S.C. Sec. 2255.

I.

We conduct a de novo review of Fennell's challenge to the sufficiency of the evidence. United States v. Singleton, 702 F.2d 1182, 1183 (D.C.Cir.1983) (en banc). Our task is not to determine whether the evidence satisfies us of his guilt beyond a reasonable doubt, but rather, " 'the relevant question is whether, after 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. Bailey, 36 F.3d 106, 111 (D.C.Cir.1994) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), cert. granted, --- U.S. ----, 115 S.Ct. 1689, 131 L.Ed.2d 554 (1995). We draw no distinction between direct and circumstantial evidence, Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954), and we recognize that the "jury is entitled to draw a vast range of reasonable inferences" from the evidence, United States v. Long, 905 F.2d 1572, 1576 (D.C.Cir.), cert. denied, 498 U.S. 948 111 S.Ct. 365, 112 L.Ed.2d 328 (1990). Applying these standards, we find the evidence sufficient to sustain all but one of Fennell's convictions.

The testimony of both Cyrenna Belton and her cousin was an important part of the prosecution's case against Fennell. Fennell challenges the credibility of these witnesses, claiming that they contradicted one another and that "Belton had obvious reason to lie." Appellant's Brief at 24. Yet because neither witness's testimony is inherently implausible, we must defer to the jury's credibility assessments. See Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); United States v. Osum, 943 F.2d 1394, 1404-05 (5th Cir.1991); United States v. Cardona-Rivera, 904 F.2d 1149, 1152-53 (7th Cir.1990). The jury therefore could have relied upon this testimony, and reasonable inferences therefrom, in reaching its verdicts. See United States v. Dale, 991 F.2d 819, 826 (D.C.Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993).

With respect to the drug count, Belton testified that Fennell and Beasley, although not the residents of Apartment 1, were frequent visitors there; that the actual tenant of Apartment 1, a crack addict, had been arrested on August 26, yet Belton saw Fennell and Beasley in the apartment on August 27, sitting on the couch and watching television; and that she had seen Beasley at the apartment the evening of August 28, several hours prior to the arrival of the police. She also testified that when the police arrived, she was asleep on her living room couch, with the door to her apartment unlocked, while her infant son slept in her bedroom. As the police pounded on the front door of the building, she awoke to find Fennell and Beasley in her living room, looking nervously out the window at the police. Belton's cousin testified that she had seen both Fennell and Beasley in Apartment 1 earlier that day; that she was awake playing video games in the other bedroom of Belton's apartment when the police arrived; and that she had seen Fennell and Beasley come into Belton's apartment after the police knocked on the front door of the building. Belton and her cousin both testified of conduct from which the jury could have inferred that Fennell was conscious of and trying to conceal his guilt: once in Belton's apartment, Fennell and Beasley tried to hide over $4000 in cash and a set of keys to Apartment 1, dropping the keys behind the couch and throwing the cash to Belton's cousin, who threw it back to Fennell; and as the officers entered Belton's apartment, Fennell held the telephone to his ear as though he was engaged in a conversation, although no one had called and he had called no one.

The police never found the cash, but they did recover two sets of keys to Apartment 1 from Belton's apartment, one from under the couch, and the other from between the couch cushions where Fennell sat while the police searched the premises. An officer testified that he had found the keys in Fennell's pocket when he first frisked Fennell, that he permitted Fennell to retain the keys once he determined that they posed no danger, but that they were no longer in Fennell's pocket when the police later arrested him.

An expert police witness called by the government testified that drug dealers, to avoid capture, commonly deal from a "stash house"--the house of another person, especially a person with drug problems. The police testified that when they entered Apartment 1, two chairs were at the dining room table, each with a separate pile of cocaine, a razor blade, and small plastic bags on the table in front of it. The police also testified that elsewhere in the apartment they found two triple-beam scales and other drug paraphernalia. The expert testified that in his opinion the evidence showed that the occupants were cutting the cocaine for distribution, and that they left in a hurry, because "no one leaves this amount of drugs laying around on the table with the front door open."

All of this evidence, together with the officer's testimony that he heard people moving from the left-side apartment to the right-side apartment as the police tried to enter the building, sufficed to permit the jury to infer that Fennell and Beasley had been in Apartment 1, in actual possession of the cocaine base, when the police arrived. Because Fennell stipulated that the quantity of cocaine recovered was "consistent with intent to distribute," the jury had sufficient evidence to convict Fennell of possession with intent to distribute.

Although not as strong, the evidence supporting the related weapons offenses is sufficient for us to sustain all but one of the remaining convictions. We begin with the .357 magnum handgun that the police discovered wrapped in a red, white and blue scarf on the floor of Belton's bedroom closet. The handgun bore an obliterated serial number. On the vanity next to the closet, the police found Fennell's photo identification card. In Apartment 1, the police found several rounds of .38 caliber ammunition that the .357 magnum could fire.

Again, Belton's testimony is critical. Although Belton testified that she did not see Fennell with a gun, she also testified that the red, white and blue scarf had been on her...