U.S. v. Lewis, 79-1275

• Citation: 200 U.S.App.D.C. 76,626 F.2d 940
• Decision Date: 03 March 1980
• Docket Number: No. 79-1275,79-1275
• Parties: UNITED STATES of America v. David T. LEWIS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 940

626 F.2d 940

200 U.S.App.D.C. 76

UNITED STATES of America v. David T. LEWIS, Appellant.

No. 79-1275.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 7, 1979.

Decided March 3, 1980.

William J. Garber, Washington, D. C., Court appointed counsel, for appellant.

Paul L. Knight, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., John A. Terry and Lillian A. McEwen, Asst. U. S. Attys., Washington, D. C. were on the brief for appellee.

Before MacKINNON and WILKEY, Circuit Judges and GORDON ^*, United States Senior District Judge for the Western District of Kentucky.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

In a four count indictment, Lewis was charged with multiple violations of the Controlled Substances Act, (84 Stat. 1242), 21 U.S.C. § 801 et seq. The First and Second Counts each alleged unlawful distribution of 2 tablets of phenmetrazine, ¹ in violation of 21 U.S.C. § 841(a), ² on March 28, 1978 and May 4, 1978 respectively. The Third and Fourth Counts were both alleged to have been committed on July 24, 1978, and both involved the same 3 tablets of phenmetrazine. The Third Count charged unlawful possession with intent to distribute in violation of Section 841(a), and the Fourth Count charged simple possession in violation of D.C. Code § 33-702. ³

Metropolitan police officer Scott testified at trial that, while working in an undercover capacity, he purchased two pills from appellant on each of the two occasions charged in the First and Second Counts (Tr. 7, 14-15, 28-30, 38-42). Counts Three and Four resulted from the circumstances surrounding the execution of a warrant for appellant's arrest by Officer Dodd, who testified that at the time of Lewis' arrest three pills were found six inches from appellant on the park bench on which he was seated. The arrest warrant had been issued on the basis of the two earlier sales to undercover officer Scott. (Tr. 67-70).

The jury returned a guilty verdict on all four counts and Lewis was sentenced to imprisonment for a period of "three (3) years on each of counts # 1, # 2 and # 3 of the indictment . . . plus a special parole term of four (4) years." Count Four, which had charged simple possession of phenmetrazine in violation of D.C. Code § 33-702, was dismissed because it constituted an offense included within the Third Count. Since the jury returned a guilty verdict on the Third Count it was proper for the District Court at the time of sentencing to dismiss the verdict on the Fourth Count. Congress did not intend to authorize dual convictions or separate sentences for two offenses, where one offense includes all the basic elements of the other offense. United States v. Moore, 175 U.S.App.D.C. 103, 533 F.2d 1238 (D.C.Cir.1976) (Possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a) and simple unlawful possession of a dangerous drug in violation of D.C. Code § 33-702); cf. United States v. Dorsey, 192 U.S.App.D.C. 313, 340, 591 F.2d 922, 939 (1978) (18 U.S.C. § 924(c)(2) and D.C. Code § 22-3204, firearms offenses); United States v. Shepard, 169 U.S.App.D.C. 353, 365, 515 F.2d 1324, 1336 (D.C.Cir.1975) (Federal bank robbery, 18 U.S.C. § 2113(a) and armed robbery under D.C. Code §§ 22-2901, 3202); United States v. Knight, 166 U.S.App.D.C. 21, 509 F.2d 354 (D.C.Cir.1974) (Federal mail robbery, 18 U.S.C. § 2114 and armed robbery under D.C. Code § 22-2901, 3202).

On appeal, appellant alleges error in three rulings by the district court, to wit: that the court should have (1) granted his motion to sever Counts One and Two from Counts Three and Four; (2) refused admission into evidence of Lewis' prior conviction of heroin distribution; and (3) granted his motions for acquittal based upon alleged insufficient evidence to prove his guilt of Counts Three and Four. ⁴

We discuss appellant's contentions seriatim, and affirm the rulings and judgment of the district court.

I. THE MOTION TO SEVER

Lewis first attacks the denial of his motion to sever the Third and Fourth Counts which charged the July 24th offenses (the date of his arrest), from the first two counts, which charged actual distribution in March and May. We hold that the joint trial of the four counts and their joinder in the same indictment was permissible under F.R.Crim.P. 8. ⁵ The First and Second Counts, charging distribution, implicitly include possession and intent to distribute the drugs as essential elements of each offense. The Third and Fourth Counts also involve charges of possession and the Third Count alleges an intent to distribute. Likewise, in all four counts it was the same dangerous drug that formed the basis for the charge phenmetrazine in pill form. Therefore, the four offenses each contain a sufficient number of the same basic elements so that it may be concluded that they "are of the same or similar character." F.R.Crim.P. 8.

The appellant avers, however, that the judge erred in failing to invoke the protections against prejudice embodied in Federal Rule of Criminal Procedure 14, which provides that:

(i)f it appears that a defendant . . . is prejudiced by a joinder of offenses . . . for trial together . . . the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires.

In the case of Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (D.C.Cir.1964), this court identified certain types of prejudice that would justify granting separate trials. These included (1) that the defendant might become embarrassed or confounded in presenting separate defenses; (2) that the jury might use evidence of one of the crimes charged to infer a criminal disposition to commit the other crime or crimes charged; and (3) that the jury might cumulate evidence of the various crimes charged to find guilt on a count, which if considered separately, it would not so find. Appellant contends that he was prejudiced in the manners elaborated in Drew by the trial judge's failure to grant his motion for severance.

On the basis of the government's presentation of the evidence at trial we reject appellant's claim of prejudice. The government called for the testimony of only two police officers. Officer Scott testified that he purchased phenmetrazine from Lewis on the two occasions charged in Counts One and Two of the indictment. Officer Dodd testified that when he arrested appellant, the three pills of phenmetrazine that resulted in Counts Three and Four were only six inches away from appellant's person. Furthermore, the dates of the offenses charged in Counts One and Two (the actual distribution counts) were separated by two and one half months from the dates of Counts Three and Four (charging possession and intent to distribute and simple possession). Thus, evidence tending to prove the defendant's guilt of the First and Second Counts was clearly "separable and distinct" from that of the Third and Fourth Counts. Dunaway v. United States, 92 U.S.App.D.C. 299, 303, 205 F.2d 23, 27 (D.C.Cir.1953). We therefore do not perceive any likelihood that the jury would confuse or cumulate the evidence against the defendant, draw improper inferences of criminal disposition, or confuse the applicability of the government's evidence or the defendant's defenses. Cf. Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (D.C.Cir.1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed.2d 221 (1969); Drew v. United States, supra.

Finally, the discretion of the trial court in considering severance is broad, and reversal is required only upon a finding of clear prejudice and abuse of discretion. United States v. Kim, 193 U.S.App.D.C. 370, 385, 595 F.2d 755, 770 (D.C.Cir.1979); United States v. McClintic, 570 F.2d 685, 689 (8th Cir. 1978); cf. United States v. Maynard, 155 U.S.App.D.C. 223, 331, 476 F.2d 1170, 1178 (1973). No such prejudice or abuse of discretion was shown here so we uphold the district court's denial of defendant's severance motion.

II. THE ADMISSION OF IMPEACHMENT EVIDENCE

Appellant next questions the admissibility for impeachment purposes of his prior felony conviction for distributing heroin. Before Lewis testified on his behalf, defense counsel requested the court to rule on whether, if his client took the witness stand in January, 1979, the Government could impeach him with a 1972 felony conviction for distributing heroin in violation of 21 U.S.C. § 841(a). (Tr. 118, et seq.) This required a ruling under Rule 609 of the Federal Rules of Evidence, which provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement regardless of the punishment.

(1) Crimes Involving Dishonesty or False Statement.

The Government contended at trial that Lewis' prior conviction was admissible under both Rule 609(a)(1) and (a)(2). The trial judge first rejected, as we do here reject, the Government's contention that the crime of heroin distribution involves dishonesty or false statement. ⁶ It was argued that he who lives by surreptitiously selling drugs on the street to innocent members of the community engages in a crime involving "dishonesty". The argument is ingenious, but it does not comport with the plain meaning of dishonesty, and we have rejected the same contention previously. United States v. Millings, 175 U.S.App.D.C. 293, 295, 535 F.2d 121, 123 (D.C.Cir.1976). While Millings involved a conviction for simple possession of a narcotic drug, we do not discern that a...