U.S. v. Lawson

• Decision Date: 20 July 2007
• Docket Number: No. 06-3035.,06-3035.
• Citation: 494 F.3d 1046
• Parties: UNITED STATES of America, Appellee v. William L. LAWSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.3d 1046

UNITED STATES of America, Appellee v. William L. LAWSON, Appellant.

No. 06-3035.

United States Court of Appeals, District of Columbia Circuit.

Argued February 2, 2007.

Decided July 20, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cr00273-01).

Nikki U. Lotze argued the cause and filed the briefs for appellant.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III, David B. Goodhand, and Kenneth F. Whitted, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and GRIFFITH, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge.

Appellant William L. Lawson challenges his criminal conviction and resulting sentence on multiple grounds. For the reasons set forth below, we affirm his conviction but remand the case to the district court for re-sentencing.

I.

Looking for illegal drug transactions, Officer Darrick Wallace of the District of Columbia Metropolitan Police Department parked his unmarked police car at a strip mall on the 5000 block of New Hampshire Avenue, N.W., on the evening of May 14, 2004. From this observation post, Wallace saw appellant Lawson drive his car with a passenger into the mall's parking lot and park in a spot only a few feet away from Wallace's post. With a clear view of the driver's side of Lawson's car, Wallace saw Aubrey Canarte approach the car on a bicycle and, after a brief conversation, hand Lawson some money. Lawson reached up towards the sun visor in his car and retrieved a "small object" that he handed to Canarte, who then pedaled away. Lawson and his passenger soon drove away as well, followed by Wallace and two other officers Wallace had called for assistance. The three officers stopped Lawson's car at a traffic circle a short distance away. As he approached the stopped car, Officer Clayton Smith noticed that Lawson and his passenger were holding clear plastic cups. Believing them to contain alcohol, Smith asked Lawson to step out of the car, at which point Lawson handed Smith the cup. Because the liquid smelled like alcohol, the officers arrested Lawson and his passenger for illegal possession of an open container of alcohol.

Smith also saw an open bottle of champagne inside the vehicle in plain view. While retrieving the bottle, Smith smelled what he suspected was marijuana coming from the center console. He opened the console and found inside a.40 caliber semi-automatic handgun loaded with seven rounds, a large clear bag holding eight smaller bags containing a total of 11.7 g of crack cocaine, four clear bags containing 8 ecstasy pills (1.3 g in total), and three clear bags of marijuana (8.8 g in total). Smith also found $1,400 in cash on Lawson and another small clear bag of 1.4 g of crack cocaine in the area near the driver's side sun visor. Lawson was charged with unlawful possession with intent to distribute 5 g or more of crack cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii); unlawful possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D); unlawful possession with intent to distribute ecstasy, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C); using, carrying, and possessing a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)(1); and because Lawson had a prior felony conviction for unlawful possession of drugs and guns, unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).

At trial, Lawson requested a jury instruction that would allow the jury to find that possession of the 1.4 g of crack cocaine found behind the sun visor could be for his personal use alone while possession of the 11.7 g found in the console was for distribution. The district court agreed to the instruction but explained to the jury that it could still convict Lawson of possession with intent to distribute the smaller amount and could only convict Lawson of simple possession of this amount if the government failed to prove beyond a reasonable doubt that Lawson possessed the larger amount. [See 9/13/05 Tr. at 84, 116-17]. The jury convicted Lawson of (1) possession by a felon of a firearm, (2) simple possession of the 1.4 g of crack cocaine, and (3) simple possession of marijuana.¹ The jury acquitted Lawson of using, carrying, and possessing a firearm during a drug trafficking offense and of possession with intent to distribute marijuana or the smaller amount of crack cocaine. The jury deadlocked on the charges of possession with intent to distribute the larger amount of crack cocaine and the ecstasy found in the console. The government dropped these two charges.

The district court sentenced Lawson to 192 months in prison: 120 months for possession of the firearm, 12 months for possession of the marijuana, and 60 months for possession of the crack cocaine. The court justified the 60-month sentence, which is well beyond the statutory maximum for possession of 1.4 g of crack cocaine, by reasoning that even though the jury did not convict Lawson of possession with intent to distribute the 11.7 g of crack cocaine, his conviction for possession of the gun and the marijuana found in the console was a clear indication "that the jury was concluding that [Lawson] possessed all of the [crack cocaine found in the car.]" 1/12/06 Tr. at 15. Only a week later, the district court, sua sponte, announced that it was reconsidering Lawson's 60-month sentence because of its uncertainty as to whether it could impose a sentence that exceeded the statutory maximum for his possession of the 1.4 g based upon its determination that he had also possessed the 11.7 g. Later, the court reduced Lawson's sentence for possession of the 1.4 g to the statutory maximum of 12 months, but reiterated its conclusion that, given the way these drugs were packaged, "the evidence clearly indicated that these drugs [including the 11.7 g of crack cocaine and the ecstasy] were possessed with the intent to distribute them." 2/3/06 Tr. at 4 (emphasis added); see also id. at 6 ("I do believe that the evidence, by a preponderance, did in fact indicate his involvement in this offense beyond mere possession." (emphasis added)).

On appeal, Lawson challenges his convictions, arguing that the district court abused its discretion when it excluded allegedly relevant evidence, erred in instructing the jury to disregard a portion of his counsel's closing argument, and demonstrated unlawful bias against his counsel throughout the trial. Lawson also argues that the district court violated his Sixth Amendment right to trial by jury by imposing a sentence based on facts not found by the jury and that his sentence was unreasonable because the district court failed to provide a sufficient justification for imposing a sentence higher than the maximum recommended by the Sentencing Guidelines ("Guidelines"). We first address Lawson's arguments relating to his trial and then turn to those challenging his sentence.

II.

A. Faulty Photographs of the Re-Created Crime Scene

At trial, Lawson argued that no sale of drugs to Aubrey Canarte took place. In an effort to show that Officer Wallace could not have observed the transaction from where he sat in his car, Lawson attempted to submit into evidence two photographs that depicted his attempt to re-create the scene. The photographs showed a car placed in the same spot that Lawson had occupied and a man on a bicycle in two different positions relative to the car. The car in the photographs was not Lawson's.

The district court refused to admit the photographs into evidence because, according to Wallace, they did not accurately represent what he had seen: the bicycle did not appear in the exact position he had recalled seeing it. The court explained that the proper way to use a photographic re-creation for trial would have been to ask the court to "order the officer to go out and position the bike and the person in a manner consistent with what he saw." 9/8/05 Tr. at 104. Lawson's counsel then asked Wallace on the stand to draw a picture on the photographs depicting the car and the bicycle. When Wallace protested that he was no "artist" and thus felt uncomfortable trying to draw the scene, the court stopped this line of inquiry. Lawson's counsel next attempted to present evidence that Lawson's car was unavailable for the photographs because it had been seized in civil forfeiture, but the court rejected this argument, holding that once the photographs were excluded, any evidence that the car had been seized was irrelevant. The court reminded Lawson's counsel that the photographs were excluded because they could not be authenticated by Wallace. The fact that the car was not Lawson's was, according to the court, irrelevant. On appeal, Lawson argues that the court abused its discretion by (i) excluding the photographs, (ii) prohibiting Lawson's counsel from seeking Wallace's drawn corrections to the photographs, and (iii) not allowing counsel to present evidence that Lawson's car had been taken into police custody.

"This Court reviews a district court's evidentiary rulings for abuse of discretion." United States v. Watson, 409 F.3d 458, 462 (D.C. Cir. 2005). To be admissible, evidence must be relevant, and its probative value must not be substantially outweighed by the danger of unfair prejudice or misleading the jury. See FED. R. EVID. 402, 403. "As a general rule, tangible evidence such as photographs must be properly identified or authenticated before being admitted into evidence at trial." United States v. Blackwell, 694 F.2d 1325, 1329-30 (D.C. Cir. 1982) (citing FED. R. EVID. 901(a)). A photograph may be authenticated if a witness with knowledge of the scene testifies that it accurately depicts the scene it purports to represent. See, e.g., Am. Wrecking Corp. v. Sec'y of Labor...