U.S. v. Foster

• Decision Date: 06 March 2009
• Docket Number: No. 05-3201.,05-3201.
• Citation: 557 F.3d 650
• Parties: UNITED STATES of America, Appellee v. James T. FOSTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

557 F.3d 650

UNITED STATES of America, Appellee v. James T. FOSTER, Appellant.

No. 05-3201.

United States Court of Appeals, District of Columbia Circuit.

Argued November 17, 2008.

Decided March 6, 2009.

Appeal from the United States District Court for the District of Columbia, (No. 02cr00395-02).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Christopher R. Kavanaugh, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Patricia Stewart Assistant United States Attorneys, were on brief.

Before: GINSBURG and HENDERSON, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

James Foster was convicted of one count of unlawful distribution of cocaine and one count of possessing with intent to distribute (PWID) 50 grams or more of cocaine base. The district court sentenced Foster to 12 years' incarceration on each count to run concurrently. Foster appeals the judgment, arguing that the district court erred in denying his motion for a mistrial on the distribution count based on a government witness's surprise testimony at trial. He also challenges the sufficiency of the evidence to support his conviction on the PWID count. For the following reasons, we affirm the judgment of conviction.

I.

On August 21, 2002, the appellant, James Foster, and Debra Waldrop, his wife at the time,¹ were arrested. On September 19, 2002, a federal grand jury returned an indictment charging Foster and Waldrop with two counts of distribution of cocaine base, once on June 27, 2002, and the second time on August 12, 2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).² The indictment also charged Foster and Waldrop with one count of PWID 50 grams or more of cocaine base on August 21, 2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).³ Both were also charged with aiding and abetting on each count under 18 U.S.C. § 2. Waldrop was charged with an additional count of distributing cocaine base on August 15, 2002. She pleaded guilty to all four counts and was sentenced to 70 months' imprisonment on three counts and 120 months' imprisonment on one count to run concurrently. Foster pleaded not guilty to all counts.

Foster's jury trial commenced on November 10, 2003. The government's primary witness was Detective Lavinia Quigley, an undercover narcotics officer with the District of Columbia (District) Metropolitan Police Department (MPD). Sometime before June 27, 2002, Quigley received information from a "special employee" that drugs were being sold at an apartment in the District. On June 27, 2002, Quigley went to the apartment and knocked on the window. A black male opened the door and Quigley entered. Waldrop was sitting on a couch in the apartment. Quigley asked for $60 worth of cocaine base. The male removed a plastic bag containing cocaine base from a bottle and placed the bag on the table. Waldrop opened a black pouch, took out a plastic bag containing cocaine base and broke off a piece. The male gave Quigley a lottery ticket in which to wrap the piece of cocaine base. Quigley gave Waldrop $60 and left the apartment. Quigley was in the apartment approximately five minutes. She sat a few feet from the man and Waldrop and testified that the lighting was like that in the courtroom. In court, Quigley identified Foster as the male at the apartment on June 27, 2002.

Quigley returned to the apartment on August 12, 2002 and purchased more cocaine base from Waldrop. Quigley observed Foster sleeping on a bed in the living room during the transaction. At the close of the government's case, the court granted Foster's motion for judgment of acquittal as to the second count (the August 12th transaction) based on insufficient evidence tying Foster to the sale. Quigley also purchased cocaine base from Waldrop on August 15, 2002, but Foster was not in the apartment at the time and was not charged. Following the August 15th transaction, Quigley obtained a search warrant.

Quigley returned to the apartment the final time on August 21, 2002. Foster opened the door and let Quigley in. Foster sat next to Waldrop on one couch and Quigley sat on another couch. Quigley told Waldrop she wanted to purchase three "eight balls" of cocaine base. Trial Tr. at 43, United States v. Foster, Cr. No. 02-395 (D.D.C. Nov. 12, 2003) (Tr. 11/12/03am). Waldrop went into a back room in the apartment and came back with a blue pouch containing several plastic bags. Before Quigley could complete the transaction, a black female knocked at the front door. Foster answered the door and the woman told him she wanted to make a buy. Quigley testified that "Mr. Waldrop [sic] went next to Ms. Foster [sic], picked up a ziploc off the table and handed it to the black female." Id. at 44. On cross-examination, Quigley testified that "Ms. Waldrop had already given [the woman] the zip" before Waldrop and the woman discussed the payment. Id. at 84. Quigley then testified that "Mr. Foster gave the black female the ziploc containing crack cocaine." Id. Quigley clarified that "Mr. Foster handed [the black female] the drugs and [Waldrop] took the money." Id. at 86. On redirect, the prosecutor asked Quigley "who actually handed the female who came into the apartment the small packet of drugs she asked for?" Id. at 92. Quigley replied, "Ms. Waldrop, I mean Mr. Foster." Id. The woman and Waldrop were discussing the price when MPD officers knocked on the door and entered the apartment to execute the search warrant. Waldrop ran to the bathroom with the blue pouch to flush the drugs but Quigley convinced her to place the blue pouch in the toilet tank.

The MPD officers arrested Foster and Waldrop. They seized a blue pouch containing 50 grams of cocaine base from the toilet tank; four ziploc bags containing 0.82 grams of cocaine base from a tray in the living room; ten ziploc bags containing 2 grams of cocaine base from a container on the television; a plate on a shelf underneath the television containing 0.50 grams of cocaine base residue, a razor blade and empty ziplocs; and a bag containing 0.19 grams of cocaine base in plain view on an end table. The officers also found a District Department of Human Services identification card belonging to Foster, a marriage license attesting to the marriage of Waldrop and Foster in a dresser drawer in the bedroom and male clothing in the bedroom.

During cross-examination, defense counsel questioned Quigley regarding the black male present at the June 27, 2002 transaction.

Q: Okay, now this black male was somebody you didn't know from the past or well let me just say this black male was somebody that you didn't know correct?

A: I knew him from the previous buy, from a previous buy, yes.

Q: June 27th was your first buy in this investigation, is that correct?

A: Okay, it wasn't — I met Mr. Foster.

Q: Can we —

A: Can I say —

Mr. Sussman [defense counsel]: Can we stop for a second and approach?

The Court: Yes, just one moment.

(Bench conference.)

Mr. Sussman: I have no idea where she'd [sic] going, but it sounds like there was a previous relationship which was never disclosed.

The Court: I think there's a question of dates actually.

Ms. Lerner [prosecutor]: Well, I think it's partly she was introduced to a special employee.

Mr. Sussman: Did she actually meet them?

Ms. Lerner: I believe so. I found that out this afternoon, I mean this morning. I can't speak with Mr. Foster I didn't ask for details because I didn't think that I would go into that. I'm sorry Your Honor, I didn't think that was relevant and I was not going to go into that. I wasn't planning on it.

Tr. 11/12/03am at 56-57. Defense counsel then continued the cross-examination without questioning Quigley further regarding the previous drug transaction and the prosecutor did not raise the matter on redirect. Following the lunch break, defense counsel requested a mistrial because of Quigley's surprise testimony. He claimed Quigley's testimony weakened Foster's mistaken identification defense. The government stated that it had no intention of using Quigley's testimony regarding the prior drug transaction. The court denied Foster's motion for a mistrial and gave the following curative instruction as specifically requested by the defense:

We kept you [the jury] waiting a little bit because we were having a discussion about what we thought was some confusion in the testimony of Detective Quigley, and so I just after our discussion wanted to give you an instruction from the Court, and that is that the first event in this investigation and the first event on which you are to concern yourself occurred on June 27 of 2002. And if it appeared that there was any testimony about anything prior to that date, it's totally irrelevant and should be disregarded by the jury.

Trial Tr. at 13-14, United States v. Foster, Cr. No. 02-395 (D.D.C. Nov. 12, 2003) (Tr. 11/12/03pm). Foster presented two alibi witnesses who testified that he was with them at the time of the alleged drug transaction on June 27, 2002. Before jury deliberations, Foster moved for a judgment of acquittal on the two remaining counts (June 27 and August 21), which motion the court denied.

The jury returned a guilty verdict against Foster on count one, distribution of cocaine base on June 27, 2002, and count four, PWID 50 grams or more of cocaine base on August 21, 2002. Foster moved for a new trial on count one based on Quigley's surprise testimony, which motion the district court denied. Foster was sentenced to 144 months' imprisonment on each count (concurrent). Foster timely appealed.

II.

We review the district court's evidentiary rulings and denial...