U.S. v. Fountain, 92-5161

• Decision Date: 24 May 1993
• Docket Number: No. 92-5161,92-5161
• Citation: 993 F.2d 1136
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kerric R. FOUNTAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1136

993 F.2d 1136

UNITED STATES of America, Plaintiff-Appellee, v. Kerric R. FOUNTAIN, Defendant-Appellant.

No. 92-5161.

United States Court of Appeals Fourth Circuit.

Argued March 29, 1993.

Decided May 24, 1993.

Raymond A. Carpenter, Jr., Boone, Beale, Carpenter & Cosby, Richmond, VA, argued (David E. Boone, on brief), for defendant-appellant.

Ray B. Fitzgerald, Jr., Asst. U.S. Atty., Roanoke, VA, argued (E. Montgomery Tucker, U.S. Atty., on brief), for plaintiff-appellee.

Before HALL, MURNAGHAN, and WILLIAMS, Circuit Judges.

OPINION

MURNAGHAN, Circuit Judge:

Kerric Fountain was convicted in a bench trial of count I, possession of marijuana with intent to distribute in violation of Title 21 U.S.C. § 841(a)(1) and § 841(b)(1)(D), and of count II, use or possession of a firearm during and in relation to a drug trafficking crime in violation of Title 18 U.S.C. § 924(c). ¹

Fountain was sentenced to two months of incarceration under the sentencing guidelines for the possession with intent to distribute charge, and to a mandatory five year sentence for the firearms charge. He has appealed on the grounds that there was insufficient evidence to support a finding of guilt on the "with intent to distribute" element of the marijuana charge and that thus the finding of guilt on the related charge of possession of a firearm in relation to a drug trafficking crime was error.

On the evening of February 17, 1990, the Staunton, Virginia police received an anonymous call in which a supposedly black male gave information on a person in the area who "was possessing firearms and drugs." The informant said that the individual was a young black male named Kerric Fountain, and was wearing a red jacket and a ball cap. Fountain, the tipster said, could be found at Johnson Street and Cochran Street. The dispatcher relayed the information to Officer James W. Doyle within five minutes of receiving it.

Fountain's counsel objected to the introduction of the dispatcher's testimony on the grounds that it was hearsay. The district court admitted the evidence only for the purpose of explaining why Officer Doyle acted as he did. It was not admitted for the truth of the matter asserted.

Officer Doyle testified that he recognized the area of Johnson and Cochran Streets as "a known area for heavily trafficking in drugs." Upon his arrival at the scene, at approximately 11:20 p.m., Doyle found Fountain located where the informant had indicated and dressed as described. He was walking in the darkness when he was first sighted, and reversed direction and walked away from the police vehicle when it came into view. Officer Doyle testified that he stopped his van, exited, and drew his weapon, asking Fountain to remove his hands from his coat pockets. Fountain, apparently frightened and upset, told Doyle that he had weapons on him, and brought out two guns from his pockets, removing them by the ends of the handles and laying them on the ground. The weapons, a .38 caliber revolver and a .22 caliber automatic, were both loaded.

Doyle took Fountain into custody and transported him to the police headquarters. He did not do a full custodial search at the scene of arrest, but when Fountain was searched at the headquarters, three baggies of marijuana were found in his sock, all contained in another baggie closed with a wire tie. One baggie was larger than the others, but the total amount of marijuana was later found to be 2.3 grams. Fountain also had in his pockets a small amount of change and a package of rolling papers, which are used to roll marijuana cigarettes.

One more prosecution witness in addition to the dispatcher and Officer Doyle was called. David High, a Special Agent with the Drug Enforcement Administration, testified as an expert in the methods of distribution and use of marijuana in the Staunton, Virginia area. He testified that the scenario presented by the prosecution's evidence was one that was consistent with the theory that Fountain was a distributor of marijuana. On cross examination, he admitted that the scenario might also indicate that Fountain was a user. High added on redirect that being a seller and a user were not mutually exclusive.

High testified that the street value of the marijuana found on Fountain could range from $20 per baggie to $5 per baggie, that it was common for marijuana to be packaged in separate baggies for sale, with wire twist ties used to seal the baggies, and that the marijuana found on defendant was in "final retail packaging." He stated that the quantity found on defendant was an "average to small" amount for a street-corner dealer to possess. He said that it was common for drug dealers--both corner salesmen and higher-ups in the hierarchy--to carry guns or firearms. He testified that marijuana is often sold in an "open air market," where people just drive up to a corner where they know that they can obtain drugs and buy from someone standing on the street. The drugs are often stashed in a sock or hat, rather than in a pocket, he stated, and on cross-examination added that drugs are often stashed behind a nearby bush or held by another person in an open air drug market. On cross-examination Fountain's counsel attempted to elicit the opinion that the absence of a pager or large amounts of money was an indication that someone was not a dealer, but High persisted in his testimony that it was more likely a dealer would carry a gun, and that the fact that Fountain had no money on him could mean only that he had recently paid off his supplier or that no sale had yet been made.

That was, in effect, the prosecution's case, and the court denied Fountain's motions for a verdict of acquittal. Fountain then testified on his own behalf. He said that he had left his residence some mile and a half away from where he was later arrested, on foot, to go to a convenience store and then to a party in the neighborhood. Several days earlier a shooting had occurred in the area and a friend had been killed. Because he was afraid of danger, he testified, he had asked a friend, "Pappa Jones," if he could borrow a gun. "Pappa Jones" offered him the use of two guns, both of which he took and both of which he carried that night when he went to the convenience store and the party.

At the party, Fountain testified, he purchased some marijuana for twenty dollars, and smoked a portion of it outside the party. He had previously bought marijuana in the neighborhood, but did not reveal the person who sold it to him that night. No one else, he said, saw him buy. He had been smoking marijuana for a little less than a year, and had received the $20.00 to buy the marijuana from his girlfriend. He did not show the guns that he carried to anyone at the party. In fact, no one that he could identify knew that he carried both marijuana and guns that night.

Fountain testified that he left the party around 10:30 that night after being told that his cousin, Eric, had come looking for him. He stated that he went out on the street to wait for his cousin. Eric showed up, and tried to get Fountain to come away with him in the car, but Fountain refused and instead tried to get Eric to come into the party. Eric refused and left, telling Fountain to wait there for him. Fountain waited on the corner--approximately 25 minutes--until Doyle showed up and arrested him.

Fountain's cousin, Eric, also testified. He said he had arrived in Staunton on February 17 at about 10:00 p.m. Upon hearing that Fountain was at a party in the area where trouble had occurred several nights before, he went in his car to the party to get Fountain to come home. He told someone to tell Fountain to come out of the party to see him. Fountain came out, but wanted to...