U.S. v. Lipscomb, 92-3368
| Decision Date | 28 January 1994 |
| Docket Number | No. 92-3368,92-3368 |
| Citation | 14 F.3d 1236 |
| Parties | 38 Fed. R. Evid. Serv. 1034 UNITED STATES of America, Plaintiff-Appellee, v. Tony LIPSCOMB, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Gregory T. Mitchell (argued), Office of the U.S. Atty., Chicago, IL, for plaintiff-appellee.
Joshua Sachs (argued), Chicago, IL, for defendant-appellant.
Before FLAUM and MANION, Circuit Judges, and REYNOLDS, District Judge. *
Tony Lipscomb ("Lipscomb") appeals his conviction and sentence on charges related to drug-trafficking and weapons possession. In part, this appeal requires that we consider the proper application of Rule 704(b) of the Federal Rules of Evidence to the expert testimony of law enforcement officials. For reasons set forth below, we affirm.
A. Evidence Presented at Trial
In the early morning of September 10, 1991, a car in which Lipscomb was a passenger was chased and eventually stopped by Chicago police officers, who knew the car to be stolen. When the car stopped, both Lipscomb and its driver, John Glasper ("Glasper"), tried to escape on foot, but both were quickly caught. The officer who caught Lipscomb testified that he found, in patting him down, a .38 caliber revolver, six .38 caliber bullets, $352 in cash, including $52 in singles, and a metal case containing 34 plastic bags of cocaine weighing a total of 4.2 grams. (I Tr. at 27-29.)
Both Lipscomb and Glasper testified, however, that Lipscomb was carrying only the cash, and that the officers expressly decided to "put" the other items on him after finding them elsewhere. (II Tr. at 160-70, 178-79, 222, 229-230.) Lipscomb further testified that most of the cash represented his share of a class action settlement, and that he had no intention to distribute cocaine. (II Tr. at 208, 231.)
Three of the officers who testified as to the circumstances surrounding Lipscomb's arrest also testified as law enforcement experts. In that capacity, the officers were permitted to give their opinions of whether, based on their considerable experience in cocaine-related arrests, the cocaine said to have been found on Lipscomb was "for" street-level distribution, as opposed to personal consumption. Officer Lester Jones testified as follows:
Q. Officer, do you have an opinion as to whether this type of 34 individually packaged bags of cocaine were for street level distribution?
* * * * * *
A. Yes.
Q. What is your opinion?
A. For sale on the street.
Q. What do you base that opinion on?
A. Because of the manner in which they are packaged.
(Tr. at 33.)
Similarly, Officer Brian Murphy testified as follows:
Q. Officer, do you have an opinion based on your experience as to whether these 34 individually wrapped dime bags were for street distribution?
* * * * * *
A. I would say definitely, yes.
Q. What's the basis of your opinion?
A. The way they are packaged in the little separate things for sale, he had a weapon on him mostly either for intimidation or for his own protection, the amount of money he had, the denominations of the money with the 52 singles.
* * * * * *
Q. So part of your determination that this was street distribution was based on the 52 singles?
A. Yes, such large--large number of such small bills, that's how they usually sell them out there.
(Tr. 68-69.)
Finally, Officer Patricia Thibault testified as follows:
Q. Do you have an opinion based on your experience as to whether this cocaine that was received--that was recovered from the defendant was for street level distribution?
* * * * * *
A. In my opinion that is for street level distribution.
Q. What's the basis of your opinion?
A. The defendant had no pipes, no screens, no grain alcohol, anything that would be used in its consumption on his person.
Q. Is there any other basis for your opinion with respect to the packaging?
(Tr. at 92.) Lipscomb's objection to this testimony was overruled.
The jury found Lipscomb guilty on one count of possession of a firearm by a person previously convicted of a felony (count one), in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1), one count of using and carrying a firearm in relation to the commission of a drug-trafficking crime (count two), in violation of 18 U.S.C. Sec. 924(c)(1), and one count of possession of cocaine with intent to distribute (count three), in violation of 21 U.S.C. Sec. 841(a)(1).
Because Lipscomb had three previous convictions for violent felonies, his conviction for possession of a firearm required that he be given an enhanced sentence under 18 U.S.C. Sec. 924(e)(1), which in turn required that he be deemed an "armed career criminal" for sentencing purposes. Sentencing Guideline Sec. 4B1.4(a). That status, combined with the fact that Lipscomb used the firearm in connection with a "controlled substance offense," required that he be assigned an offense level of 34, as well as a Category VI criminal history, resulting in a guideline range of 262 to 327 months. Sentencing Guidelines Sec. 4B1.4(b)(3)(A), (c)(2). In addition, as a result of his conviction for carrying a firearm in connection with a drug-trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1), Lipscomb was subject to a mandatory consecutive sentence of five years.
Lipscomb objected that the consecutive sentence should not be imposed because the factor on which it was based, gun possession, already had been taken into account in his sentencing, for it had put him in the category of an armed career offender. The district court, rejecting Lipscomb's argument, sentenced him to 295 months imprisonment on count one, 240 months imprisonment on count three running concurrently with the sentence on count one, and 60 months imprisonment on count two running consecutively to the sentence on count one, resulting in a total imprisonment period of 355 months.
Lipscomb contends that the district court erred in permitting the officers to give their expert opinions on whether the cocaine they found on him was for distribution rather than for his personal use. Such opinions, Lipscomb contends, go to the "ultimate issue" of whether he intended to distribute the cocaine, an element of the charge against him, and therefore should have been excluded under Rule 704(b), which provides:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Fed.R.Evid. 704(b). As discussed further below, this rule is written as an exception to Rule 704(a), which provides:
Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Decisions applying Rule 704(b) to the expert testimony of law enforcement officials have found it significant whether the expert actually referred to the intent of the defendant or, instead, simply described in general terms the common practices of those who clearly do possess the requisite intent, leaving unstated the inference that the defendant, having been caught engaging in more or less the same practices, also possessed the requisite intent. Thus, in United States v. Foster, 939 F.2d 445, 454 (7th Cir.1991), the court held that Rule 704(b) did not preclude a detective from testifying "that, as a general rule, drug couriers" use cash, aliases, beepers, one-way tickets, "masking agents such as talcum powder," and hard-sided suitcases, all of which the defendant had used as well. Rule 704(b) did not bar such testimony, the court held, because although the testimony would support the inference that the defendant knew of the cocaine in his suitcase, the record contained no "specific statement in which [the expert] opines that [the defendant] had the requisite mental state." Id. Similarly, in United States v. Wilson, 964 F.2d 807, 810 (8th Cir.1992), Rule 704(b) was held not to bar a drug agent's expert testimony that 130 grams of methamphetamine, the amount found on the defendant, was not a typical "user quantity." The court stressed that "nowhere in the record is there a specific statement in which [the agent] says that [the defendant] had the intent to distribute the methamphetamine." Id.
In a recent case before this court, however, even a fairly direct reference to the defendant's intent was held not to violate Rule 704(b). United States v. Brown, 7 F.3d 648, 653 (7th Cir.1993). The expert in Brown, who, unlike the experts here, was not an arresting officer, testified that the quantity of crack cocaine found on the defendant, together with his possession of a weapon but not of any "smoking device," indicated that the cocaine "was intended for distribution." Id. at 650. The Brown court noted: Id. at 653 n. 2. Even so, the court held that the rule had not been violated, because it was clear that the expert was merely identifying an inference that might be drawn from the circumstances surrounding the defendant's arrest, and was not purporting to express an opinion as to the defendant's "actual mental state." Id. at 653.
Other courts also have been willing to excuse an expert's direct reference to the defendant's intent. In United States v. Mitchell, 996 F.2d 419 (D.C.Cir.1993), a case quite close to this...
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