U.S. v. Graham

• Decision Date: 31 January 2003
• Docket Number: No. 00-3121.,00-3121.
• Citation: 317 F.3d 262
• Parties: UNITED STATES of America, Appellee, v. Steven A. GRAHAM, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

317 F.3d 262

UNITED STATES of America, Appellee, v. Steven A. GRAHAM, Appellant.

No. 00-3121.

United States Court of Appeals, District of Columbia Circuit.

Argued November 4, 2002.

Decided January 31, 2003.

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Appeal from the United States District Court for the District of Columbia (No. 99cr00355-14).

A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.

Roy W. McLeese III, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, and Timothy J. Heaphy, Assistant U.S. Attorneys.

Before: RANDOLPH and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Steven Graham appeals his conviction by a jury of conspiracy to distribute heroin or cocaine base, 21 U.S.C. § 846, and possession with intent to distribute heroin, 21 U.S.C. § 841 (a)(1) & (b)(1)(C). Graham contends that: (1) an FBI agent was improperly allowed to offer irrelevant hearsay evidence to Graham's prejudice, (2) the government improperly attempted to impeach his key witness, and (3) the district court essentially directed a verdict for the government with regard to the conspiracy count. We conclude that Graham has failed to show that the hearsay evidence was prejudicial in light of other evidence from conspirators or to show plain error with regard to his two other contentions. Regarding his sentence, Graham contends that the district court erred in: (1) determining the quantity of drugs to be attributed to him, (2) denying a downward adjustment as a minor participant, and (3) imposing supervised release in excess of the amount allowed by statute. Although Graham's first two sentencing challenges are meritless, because the district court improperly sentenced Graham under § 841(b)(1)(A), we remand the case for resentencing under § 841(b)(1)(C). Accordingly, we affirm the judgment of conviction except insofar as we remand the case to the district court to impose a term of supervised release under § 841(b)(1)(C).

I.

Graham was arrested on May 26, 1999, at the Arthur Capers housing area in Southeast, Washington, D.C., by Metropolitan Police Department officers. The officers' trial testimony revealed that one of them had observed Graham dropping an object resembling small bags of heroin on the ground as the police had approached him. However, Graham was almost immediately released from custody and not rearrested until June 18, 1999, on a parole violator warrant. The government thereafter indicted Graham for being part of a drug conspiracy led by Kevin Gray; his indictment was severed from that of the other defendants and Graham went to trial alone.

At trial, the government presented essentially three types of evidence: (1) tape recordings of conversations obtained from wiretaps of Gray's cellular phone; (2) testimony from admitted conspirators Maurice Andrews and Marvin Dixon, who provided explanations for the meaning of the words in the taped telephone conversations and described incidents they had observed or heard about regarding Graham's activities as part of the drug conspiracy; and (3) testimony from the arresting officers. In his defense, Graham showed that he was on supervised release or in prison during the time of the conspiracy except for approximately six weeks, from May 4 to June 18, 1999. Through the testimony of Dale Harris, Graham also disputed an officer's testimony that he dropped the bags later confirmed to contain heroin; Harris testified that she did not see Graham drop anything on the ground when the police approached him on May 26, 1999. The prosecutor attempted to impeach Harris by asking her about a number of prior convictions, which, except for one, she denied. The jury found Graham guilty of conspiracy to distribute heroin or cocaine base, and possession with intent to distribute heroin.

During sentencing, Graham objected to the draft presentence report on the ground that there was insufficient evidence to attribute to him two to four kilograms of cocaine and one to three kilograms of heroin; he also contested factual conclusions in the report that connected Graham to the Gray conspiracy. A revised report reduced the drug quantities attributable to Graham to not more than 150 grams of cocaine base and between one and three kilograms of heroin. The government filed a memorandum in support of the reduced attributions. At the sentencing hearing, Graham reiterated that there was insufficient and contradictory evidence to attribute the full amount of the reduced quantity of drugs to him, and that the government had failed to establish the scope of the conspiracy Graham had entered. The district court rejected Graham's arguments, adopted the conclusions of the presentence report, and sentenced Graham to the high end of the sentencing range (168-210 months) under the Sentencing Guidelines: two concurrent 210-month sentences of imprisonment, followed by two concurrent sentences of five years and three years of supervised release.

II.

On appeal, Graham's challenges a series of rulings by the district court at trial and sentencing.

A.

Regarding his trial, Graham first contends that he was prejudiced as a result of the district court's error in allowing FBI Agent Fullmer to testify as to irrelevant and hearsay matters. Our review of the admissibility of hearsay evidence is for abuse of discretion. United States v. Evans, 216 F.3d 80, 85 (D.C.Cir.), cert. denied 531 U.S. 971, 121 S.Ct. 411, 148 L.Ed.2d 317 (2000).

The government's case began with testimony from FBI Agent Fullmer about the wiretaps that had been placed on Kevin Gray's telephone. The prosecutor asked the Agent: "What information specifically led the Safe Streets Task Force to focus on Mr. Gray as the subject of investigation?" Defense counsel objected to the question as calling for hearsay. The district court overruled that objection, and Agent Fullmer testified:

We had received information from numerous sources that Mr. Gray and his organization were involved in trafficking in large amounts of narcotics, be it cocaine, heroin, marijuana, as well as being responsible for numerous murders in the Washington, D.C. metropolitan area.

The prosecutor then elicited from the Agent a detailed explanation of the FBI's investigation of the Gray organization, the legal process by which the FBI obtained a wiretap on Gray's telephone, how it recorded information from that telephone, and the process by which that information was analyzed and stored. This included admission of the application for the wiretap and associated affidavits (some of which defense counsel consented to admission).

Graham contends that the admission of the Agent's answer quoted above was error, and that all of the Agent's background testimony concerning the wiretap as well as the affidavits and the application for the wiretap were inadmissible hearsay and prejudicial. Assuming that defense counsel's initial objection to the first question and the Agent's answer sufficed to preserve his objection to any later testimony that might have been hearsay, and that the first question and answer were inadmissible hearsay, see Evans, 216 F.3d at 84-89, Graham's claim fails. First, most of the testimony by the Agent was not hearsay, and, contrary to Graham's contentions, was relevant to the reliability of the wiretap evidence. Second, Graham waived any claim as to the admissibility of a number of documents when defense counsel consented to their introduction as evidence. Third, with respect to the limited testimony that is arguably hearsay, Graham fails to show how he was prejudiced. The Agent's "background" testimony about the Gray conspiracy was duplicated by properly admitted evidence from two admitted conspirators, Andrews and Dixon. United States v. Lampkin, 159 F.3d 607, 615 (D.C.Cir.1998).

B.

Graham's challenge to the prosecutor's cross-examination of the key defense witness would be more problematic had defense counsel made a contemporaneous objection. However, absent such objection, our review is confined to whether there was plain error, see United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 1776-80, 123 L.Ed.2d 508 (1993), and we find none.

The prosecutor asked Dale Harris about a series of previous convictions: for marijuana possession in Maryland, for escape, for theft, for bail violations, for assault and battery, for possession of a controlled substance with intent to distribute in Maryland, and for possession of cocaine and heroin in D.C. Harris admitted the conviction for marijuana possession, but denied the other convictions, claiming that another person had been using her name and had been arrested and convicted. The prosecutor also asked Harris whether she had been charged but not convicted of possession of heroin; Harris admitted she had. At the close of the evidence, defense counsel requested that the jury be instructed that the government had failed to impeach Harris, except for the conviction she admitted, and also moved for a new trial when the district court declined to give the instruction.

Graham contends that the cross-examination of Harris was improper because: (1) evidence of the Maryland conviction was improperly admitted under Fed.R.Evid. 609(a) as the conviction is neither a felony nor a crime of dishonesty or false statement; (2) the prosecutor improperly asked Harris whether she had been charged but not convicted of a crime and asked about other convictions that were not felonies; (3) the prosecutor did not have a good-faith basis for the cross-examination; and (4) the district court never ruled in advance that the prior-conviction evidence was admissible as more probative than prejudicial under Fed.R.Evid. 403. Assuming the Maryland conviction is not punishable by more than one year's imprisonment, and...