U.S. v. Hoffman, s. 90-3205

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: PER CURIAM
• Citation: U.S. v. Hoffman, 964 F.2d 21, 296 U.S. App. D.C. 21 (D.C. Cir. 1992)
• Decision Date: 29 May 1992
• Docket Number: Nos. 90-3205,90-3236,s. 90-3205
• Parties: UNITED STATES of America v. John HOFFMAN, a/k/a John Joseph, Appellant. UNITED STATES of America v. Bertsfield SMITHEN, Appellant.

Page 21

964 F.2d 21

296 U.S.App.D.C. 21

UNITED STATES of America v. John HOFFMAN, a/k/a John Joseph, Appellant.

UNITED STATES of America v. Bertsfield SMITHEN, Appellant.

Nos. 90-3205, 90-3236.

United States Court of Appeals District of Columbia Circuit.

Argued March 31, 1992.

Decided May 29, 1992.

Peter L. Goldman, Washington, D.C. (appointed by the Court) for appellant John Hoffman, in No. 90-3205. Gregory B. English, Alexandria, Va. (appointed by the Court), was on the brief for appellant.

Thomas F. Dunn, Fort Worth, Tex. (appointed by the Court), for appellant Bertsfield Smithen, in No. 90-3236.

Albert A. Herring, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese III and Thomas J. Hibarger, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee, in Nos. 90-3205 and 90-3236. Elizabeth Trosman, Asst. U.S. Atty., Washington D.C., also entered an appearance for appellee.

Before: WALD, EDWARDS and HENDERSON, Circuit Judges.

Opinion for the court filed PER CURIAM.

PER CURIAM:

John Hoffman and Bertsfield Smithen appeal their convictions by a jury for narcotics offenses. ¹ Their appeals raise one issue that merits discussion: whether a defense lawyer must lay some evidentiary foundation before arguing in closing that the jury should infer, based upon the absence of fingerprint evidence, that such evidence could have been obtained and would have been exculpatory. We answer that question in the affirmative, and therefore we affirm the convictions.

I. BACKGROUND

The facts of this case are straightforward and uncontested on appeal. On the afternoon of February 14, 1990, Hoffman and Smithen (collectively, "Appellants") went to Penn Station in New York City to catch an Amtrak train bound for Charlotte, North Carolina. While in the station, they attracted the attention of two Amtrak police officers, who were on "call down" duty that day. ² The two officers followed Appellants aboard the Charlotte-bound train; there, they conducted brief, consensual interviews with Hoffman and Smithen but made no request to search the luggage belonging to either. Unsatisfied by the responses they received, the officers proceeded to "call down" to the Amtrak police in Washington and recommend further interviews with Appellants.

At approximately 6:05 p.m. on the same day, five officers boarded Appellants' train during its stop-over in Washington. At the time they boarded, the train engine was being switched from electric to diesel power; as a result, the lights in the cabin were quite dim. The officers wore plainclothes and their weapons were concealed.

Once on board, two of the officers, Detective Hanson and Investigator Lawson, approached Hoffman. Hanson positioned himself in the aisle near Hoffman's seat, while Lawson stood a couple of rows behind Hoffman. After identifying himself as a police officer and obtaining consent to speak with Hoffman, Hanson asked to see Hoffman's train ticket and some identification; he examined both documents and returned them to Hoffman. Hanson then explained that he was assigned to the Drug Interdiction Unit and asked if he could search Hoffman's luggage. Hoffman consented, and Hanson proceeded to search the red duffel bag that Hoffman had identified as his. Inside, Hanson observed a pair of tennis shoes with socks stuffed into them; closer examination revealed plastic bags containing cocaine base hidden inside the socks. Hanson thereupon arrested Hoffman.

As these events were transpiring, Detective Beard and Investigator Cook were in the process of following much the same routine with Smithen. Beard approached Smithen, and Cook took a position a row or two away. Beard identified himself as a police officer, and Smithen agreed to speak with him. On request, Smithen produced his train ticket, which Beard examined and returned. Beard then requested permission to search Smithen's luggage. Smithen denied carrying narcotics, but offered his bag to be searched. Upon examining the bag, Beard found a "Dial" deodorant can on top of some clothes. He removed it from the bag and twisted the bottom, which proved to be false. Inside were numerous packets containing cocaine base and others containing cocaine. A post-arrest search of Smithen's person revealed a small bag of marijuana concealed in his crotch area.

On March 15, 1990, Appellants were indicted for possession of more than 50 grams of cocaine base with intent to distribute; Smithen was also charged separately with possession of cocaine with intent to distribute. Appellants subsequently moved to suppress the narcotics seized on the train, claiming Fourth Amendment violations, but the District Court denied the motions. See United States v. Smithen, 738 F.Supp. 15 (D.D.C.1990).

On June 21, 1990, Appellants went to trial before a jury on the narcotics charges. At trial, the Government's case consisted primarily of the testimony of the arresting officers, who recounted the events that occurred aboard the train. None of the Government's witnesses made any mention of fingerprint evidence, and the attorneys representing Hoffman and Smithen did not cross-examine on that point.

During the defense case, each appellant took the stand in his own defense. Hoffman denied owning the drugs found in his travel bag and indicated that they might have belonged to the passenger occupying the seat beside him, who left the train at or near the time that the officers boarded. See Trial Tr. (June 21, 1990) at 127-29, 132 ("Tr. I"). Smithen likewise disclaimed ownership of the narcotics found in the "Dial" can, implying that the can might have been put into his bag by someone else while he was having a snack in the lounge car. See id. at 89-91.

During closing argument, Hoffman's counsel advanced the theory that the unknown passenger who had been seated next to Hoffman was actually a drug courier who left the narcotics under a pillow on his seat when he saw the officers enter the train in Washington. According to Hoffman's counsel, Detective Hanson lied about finding the drugs in Hoffman's bag in order to be able to secure a conviction. Hoffman's attorney then brought up the question of fingerprint evidence.

If Officer Hanson had told you the truth in this case, wouldn't he after sending the drugs to the laboratory to be analyzed have sent them to be examined for fingerprints?

I mean I wouldn't be here making any argument at all if this bag containing cocaine had been examined by the police lab like they should have done.

Trial Tr. (June 22, 1990) at 18 ("Tr. II").

The Government objected to this line of argument on the ground that the record contained no evidence regarding whether the plastic bags containing the narcotics had been tested for fingerprints and, if so, what result was obtained. The District Court sustained the objection and instructed the jury as follows: "Ladies and gentlemen, counsel may only argue evidence in the case, and there is no evidence of fingerprints. Therefore, I exclude that part of his argument. Disregard it." Id. at 22.

The jury returned verdicts of guilty against Hoffman and Smithen on all counts. They now appeal.

II. DISCUSSION

Appellants raise several contentions on appeal. ³ Of these, the only issue meriting discussion is the claim that the District Court committed reversible error by preventing defense counsel from arguing to the jury that it should draw various adverse inferences against the Government based upon the Government's failure to introduce fingerprint evidence. ⁴ We address the issue primarily to clarify the law of the circuit on this evidentiary matter.

As Appellants recognize, see Joint Brief of Appellants at 12, our review of the District Court's decision to restrict Hoffman's closing argument is deferential. The trial court has "broad discretion in controlling the scope of closing argument," and an abuse of that discretion will be found only where the effect of the trial court's ruling is to "prevent[ ] defense counsel from making a point essential to the defense." United States v. Sawyer, 443 F.2d 712, 713 (D.C.Cir.1971). On the record before us, we find no abuse of discretion in the District Court's ruling; indeed, we find no error at all.

It is true, as Hoffman and Smithen contend, that defense attorneys must be permitted to argue all reasonable inferences from the facts in the record. See United States v. DeLoach, 504 F.2d 185, 190 (D.C.Cir.1974). This includes the "negative inferences" that may arise when a party fails to call an important witness at trial, or fails to produce relevant documents or other evidence, and it is shown that the party has some special ability to produce such witness or other evidence. See United States v. Pitts, 918 F.2d 197, 199-200 (D.C.Cir.1990); see generally EDWARD W. CLEARY, MCCORMICK ON EVIDENCE § 272 (1984). It is equally well-established, however, that "counsel may not premise arguments on evidence which has not been admitted." Johnson v. United States, 347 F.2d 803, 805 (D.C.Cir.1965); accord United States v. Hawkins, 595 F.2d 751, 754 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979); United States v. Gibson, 513 F.2d 978, 980 (6th Cir.1975). Thus, it is improper for either the prosecutor or defense counsel to "ma[ke] statements as to facts not proven" or to put his or her "personal knowledge and belief ... on the scales." United States v. Latimer, 511 F.2d 498, 503 (10th Cir.1975).

In this case, the only "evidence" on the fingerprint issue was purely negative--i.e., the fact that the Government did not introduce any fingerprint evidence at all. As the Government concedes, the absence of such evidence is a relevant "fact" which properly could have been argued to the jury. See Brief for Appellee at 15, 17 n. 13; see also United States v. Poindexter, 942 F.2d 354, 360 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 615, 116 L.Ed.2d 637 (1991), modified sub nom. United...