U.S. v. Lampkin
| Decision Date | 20 January 1999 |
| Docket Number | Nos. 96-3128,96-3129,s. 96-3128 |
| Citation | 159 F.3d 607 |
| Parties | UNITED STATES of America, Appellee, v. Melvin L. LAMPKIN, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Nos. 96cr00103-0, 96cr00103-02).
Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant, with whom A. J. Kramer, Federal Public Defender, was on the briefs.
Richard E. Gardiner, appointed by the court, was on the brief for appellant Troy E. Lampkin.
Kimberley S. Knowles, Assistant U.S. Attorney, argued the cause for appellee, with whom Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thomas C. Black and T. Anthony Quinn, Assistant U.S. Attorneys, were on the brief. MaryPatrice Brown and M. Evan Corcoran, Assistant U.S. Attorneys, entered appearances.
Before: EDWARDS, Chief Judge, HENDERSON and GARLAND, Circuit Judges.
Opinion for the Court filed by Chief Judge EDWARDS.
On March 5, 1996, pursuant to a search warrant, police officers searched an apartment at 1962 West Virginia Avenue, N.E., in the District of Columbia. At the time of the search, there were three adults (appellants Melvin Lampkin and Troy Lampkin, and Thomas Davenport) and five juveniles (Michael Thomas, Anthony Millhouse, Lavon Howard, Kellie Mitchell, and Catherine Pledger) in the apartment. The search uncovered ziplock bags of cocaine base on a table and hidden in a ceiling light fixture, and a pistol hidden in a chair cushion. Subsequently, an indictment was returned, charging both Melvin and Troy Lampkin with possession with intent to distribute more than 5 grams of cocaine base ("PWID"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) [Count One], and employing a minor to commit the same drug offenses, in violation of 21 U.S.C. § 861(a)(1) [Count Three]; Melvin Lampkin, alone, was charged with carrying a firearm during a drug trafficking offense [Count Two], carrying a pistol without a license [Count Four], and possession of unregistered ammunition [Count Five]. Following trial on these counts, a jury convicted both Lampkins on Counts One and Three; however, Melvin Lampkin was acquitted on Counts Two, Four, and Five.
Appellants seek to overturn their convictions on a number of grounds, only three of which raise substantial questions for consideration by this court. Appellants claim that the trial judge erred (i) in repeatedly instructing the jury that three juvenile witnesses who testified against the Lampkins could not face prosecution in federal court, (ii) in allowing the jury to consider video-taped evidence that was never presented in open court or subjected to cross-examination, and (iii) in admitting a prior consistent statement of a key Government witness. Appellants also claim that the trial judge erred in imposing a special assessment of $100, rather than $50, for each of appellants' convictions. The Government concedes that we must remand the special assessment to allow the trial court to impose the correct amount. The Government also concedes error on the first three points, but argues that each error is harmless.
After careful review of the record in this case, we find that the first two errors at issue require the reversal of both appellants' convictions on Count Three, as well as Troy Lampkin's conviction on Count One. The errors were harmless, however, with respect to Melvin Lampkin's conviction on Count One, because there was ample independent evidence linking him to the drugs. As for the third cited error, we agree with the Government that it was harmless error for the District Court to admit a prior consistent statement of Kellie Mitchell, because the statement was merely cumulative of other evidence adduced at trial.
On March 5, 1996, three members of the Metropolitan Police Department executed a search warrant in an apartment at 1962 West Virginia Avenue, N.E., in the District of Columbia. Inside, the police found eight people, 2.3 grams of cocaine base in 16 ziplock bags on a table, 31 grams of cocaine base in 202 ziplock bags hidden in a ceiling light fixture, and a pistol hidden in the cushion of a chair. Of the eight people in the apartment, three were adults--appellants Melvin and Troy Lampkin, as well as Thomas Davenport--and five were juveniles--Michael Thomas, Anthony Millhouse, Kellie Mitchell, Lavon Howard, and Catherine Pledger. The police also found keys to the apartment in Melvin Lampkin's jacket, as well as Melvin Lampkin's car registration on the same table as the 16 ziplock bags. They also found $231 in cash in Troy Lampkin's pants pocket.
The police arrested the adults and brought the juveniles in for questioning. That night, the police conducted video-taped interviews of the juveniles. Upon examination, Michael Thomas's fingerprints were found on the clip of the gun and Lavon Howard's fingerprints were found on the light fixture. No fingerprints from Melvin or Troy Lampkin were found on either the gun or the drugs.
On April 2, 1996, the Lampkins were charged with PWID and employing a minor to commit the drug offenses. Melvin Lampkin was also charged with three gun and ammunition possession offenses. The juveniles were not charged with any offenses.
Melvin and Troy Lampkin were tried together, in a trial commencing on June 25, 1996. During the trial, the building landlord testified that he had rented the searched apartment to Melvin Lampkin, and the police officers testified as to the items found in the apartment. The heart of the Government's case, however, was the testimony of three of the juveniles: Thomas (age 17), Millhouse (age 14), and Mitchell (age 15). Thomas and Millhouse testified that they had sold drugs for the Lampkins in the past, and that the Lampkins kept the drugs in the light fixture. Millhouse also testified that, on the night of the search, he had seen Melvin Lampkin with a gun. Mitchell testified that she saw Melvin reach into the light fixture that night and give Troy some cocaine to sell to a customer waiting at the door. She also testified that she saw Melvin Lampkin remove a gun from his waistband and place it under a pillow on the couch.
The credibility of the juvenile witnesses was suspect, to say the least. Thomas, in particular, seemed to have difficulty understanding most of the questions asked of him, his answers were often vague and unresponsive, the prosecutor led him on a number of occasions, and his answers to most of the central questions about the drugs and the gun changed after his recollection was refreshed by reference to the testimony that he had given before the grand jury. Millhouse testified that he had been smoking marijuana on the night of the search and that he did not have a good memory of the events of that night. Mitchell admitted that she had been smoking marijuana on the night of the search, that during her initial police interview she said she did not know if Melvin Lampkin sold drugs, and that during this interview she said it was Thomas, not Melvin Lampkin, who had taken drugs from the light fixture that night.
During the cross-examination of Thomas, defense counsel attempted to show that Thomas had a deal with the prosecutor, pursuant to which he would escape prosecution in exchange for testifying against the Lampkins. See Trial Transcript ("Tr."), 6/26/96 at 209-11. In response to questions from defense counsel, Thomas appeared to indicate that he had been told by a prosecutor that he was not being charged because he was testifying against the Lampkins. See id. at 210-11. However, at a bench conference during cross-examination, the trial judge made it clear to counsel that his line of inquiry was pointless. The court instructed counsel that
it is only fair, and it becomes more and more fair as we go, to make it abundantly clear to this jury that the United States [Attorney's Office] does not have jurisdiction [over the juvenile witnesses], that's why I wanted to say it at first and that's why I wanted to say it for every juvenile.
Id. at 218-19. Then, immediately following Thomas's testimony, the court instructed the jury as follows:
Members of the Jury, you have heard the testimony of Mr. Michael Thomas, who is a juvenile, providing testimony on behalf of the Government.... You are instructed that it is the District of Columbia Corporation Counsel that has the authority, the jurisdiction, to decide whether to proceed with any charges against a juvenile. The United States Attorney and his Assistant United States Attorney, such as the Assistant United States Attorney in this case, has no such authority.... A supervisor at the District of Columbia Corporation Counsel has ... indicated there will be no prosecution of Mr. Thomas as a juvenile arising from the events of [March 5, 1996].
At the conclusion of Millhouse's testimony, the District Court told the jury that the same instruction applied to Millhouse. See Tr. 6/27/96 at 143. Defense counsel then brought to the court's attention the fact that under 18 U.S.C. § 5032, the U.S. Attorney's Office did in fact have jurisdiction to prosecute the juveniles. The court acknowledged the error, but nevertheless repeated the instruction, over defense objection, in its final charge to the jury. See Tr. 7/2/96 at 6A-11.
Early in the trial, the Government offered into evidence the video tape of the police interviews of the three juveniles made on the night of the arrests. Defense counsel objected, claiming that admission of the tape would violate the Confrontation Clause. See Tr. 6/26/96 at 41. The trial judge admitted the tape over counsel's objection. Subsequently, Government counsel attempted to rehabilitate Thomas on re-direct by playing the portion...
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