U.S. v. Kirkland, 94-3180
| Decision Date | 24 January 1997 |
| Docket Number | No. 94-3180,94-3180 |
| Citation | 107 F.3d 923 |
| Parties | NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant. UNITED STATES of America, Appellee, v. Keith KIRKLAND, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before: SILBERMAN, WILLIAMS, and GINSBURG, Circuit Judges.
This cause came to be heard on the record on appeal from the United States District Court for the District of Columbia, and was briefed and argued by counsel. While some of the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See D.C.Cir.R. 36(b) (January 1, 1994). On consideration thereof, it is
ORDERED and ADJUDGED, by this Court, that the judgment of the District Court appealed from in this cause is hereby affirmed, for the reasons set forth in the accompanying memorandum and the published opinion filed this date. It is
FURTHER ORDERED, by this Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.R. 41(a)(1) (January 1, 1994). This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.
MEMORANDUMAppellant alleges various errors in the district judge's conduct of trial, his jury instructions, and his sentencing decisions. In an opinion accompanying this judgment and memorandum, we address one of appellant's sentencing claims; this memorandum addresses the remaining claims. We affirm.
Appellant was arrested following his sale of crack cocaine to Special Agent Ronald Woods. The sale had been arranged by a confidential informant, Durrell Wheeler, who knew appellant. The government presented evidence at trial consisting principally of the testimony of Agent Woods and Wheeler, a tape recording made from a wire Woods wore during the transaction, a videotape shot from a nearby van, and the testimony of a DEA chemist regarding the identity of the drugs. The evidence showed that Agent Woods and Wheeler parked in an undercover car and paged appellant, who arrived at the scene with more than 80 grams of crack in a styrofoam cup. Woods testified, and other evidence corroborated, that appellant removed the crack from the cup and handed it to Woods. On receipt of the drugs, Agent Woods handed appellant $2,700. Appellant, followed by Wheeler, took the money into a nearby store to count it. Soon thereafter, appellant emerged from the store, told Agent Woods that "everything was okay," and departed.
Testifying in his own defense, appellant admitted that he had sold the drugs to Woods, but claimed that he only did so because Wheeler had threatened to kill him if he did not. He testified that he had no experience as a drug dealer, that he was unfamiliar with how drugs are sold, and that he was confused during the entire transaction. Although he admitted to being in the car in which the sale was consummated, he denied on cross-examination that it was his voice on the tape recording, and he claimed that prior to the sale he carried the drugs in his pocket, rather than in a cup.
Kirkland first alleges that the district judge deprived him of a fair trial by skeptically questioning appellant's testimony in support of his entrapment defense. This claim is not without some force. At five separate points during the direct, cross, and re-direct examinations of Kirkland, the district judge interjected with questions. Most of those questions were defensible in light of the contradictory positions appellant took on the stand, but one episode strikes us as improper. During his cross-examination of Kirkland, the prosecutor played a tape recording of the conversation that took place in the car in which the sale occurred (and where appellant had already admitted he sold the drugs). Appellant claimed that he did not know if the voice on the recording was his, and the prosecutor attacked that claim as improbable. At this point, the district judge questioned appellant in an apparent attempt to clarify that appellant's testimony was to the effect that he was in the car but that he could not say whether the voice on the tape was his. The prosecutor then opened another line of questioning, but the judge again interrupted:
At this point defense counsel objected.
We recognize that the trial judge's function is not merely to moderate courtroom procedures but extends to assisting the jury in reconciling confusing and contradictory evidence. See, e.g., United States v. Norris, 873 F.2d 1519, 1525 (D.C.Cir.1989). But the trial judge must scrupulously avoid any appearance of partiality, lest he run afoul of the maxim that " '[p]rosecution and judgment are two quite separate functions in the administration of justice; they must not merge.' " Id. at 1527 (quoting United States v. Marzano, 149 F.2d 923, 926 (2d Cir.1945)). In this case, even keeping in mind that our review of a cold record is inherently limited, we think the district judge exceeded the bounds of permissible questioning. The allusion to President Clinton and Mayor Barry evinced incredulity at appellant's testimony. To be sure, that testimony was self-contradictory and confusing in the extreme, but whether it was to be believed was a question for the jury. The court should not have suggested otherwise.
Although we think the judge's questioning of appellant exceeded his proper role, we do not think it deprived appellant of a fair trial, so as to render it reversible error. See, e.g., United States v. Logan, 998 F.2d 1025, 1029 (D.C.Cir.1993). The evidence of appellant's guilt was overwhelming: he himself acknowledged participation in the salient events, and his testimony regarding entrapment was thoroughly impeached, both by the prosecution and by his own contradictions. Kirkland admitted that he sold drugs to Agent Woods in the car, and he even admitted to participating in the conversation that accompanied that sale. His subsequent disavowal of his participation in that conversation bordered on the absurd, and was at the very least unclear. The district judge's questioning of that testimony, though improper, cannot be said to have been "so prejudicial that it denied [appellant] a fair, as opposed to perfect, trial." Logan, 998 F.2d at 1029.
Appellant next alleges plain error in the district court's jury instructions, which included the statement that "[i]n many ... trials ... there is a conflict between some witnesses and other witnesses,...
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