U.S. v. Maden, s. 96-2125

• Decision Date: 02 June 1997
• Docket Number: 96-2140,Nos. 96-2125,s. 96-2125
• Parties: 47 Fed. R. Evid. Serv. 201, 97 CJ C.A.R. 860 UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Levone Ray MADEN, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 155

114 F.3d 155

47 Fed. R. Evid. Serv. 201, 97 CJ C.A.R. 860

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Levone Ray MADEN, Defendant-Appellee/Cross-Appellant.

Nos. 96-2125, 96-2140.

United States Court of Appeals, Tenth Circuit.

June 2, 1997.

Richard A. Friedman, Attorney, Appellate Section Criminal Division, Department of Justice, Washington, DC (Tara C. Neda, Assistant United States Attorney, and John J. Kelly, United States Attorney, District of New Mexico, with him on the briefs), for Plaintiff-Appellant/Cross-Appellee.

Albert B. Lassen of Lassen & Jaffe, Albuquerque, New Mexico, for Defendant-Appellee/Cross-Appellant.

Before HENRY, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Levone Maden was convicted after a jury trial of possession with intent to distribute more than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(A). The district court sentenced defendant to 240 months imprisonment, departing downward from the guideline range of 360 months to life. The government has appealed, asserting that the district court improperly departed downward on the basis of a sentencing disparity with a codefendant. Defendant cross-appeals, asserting that the district court failed to properly instruct the jury after defendant's objection to testimony that defendant said that he made his living as a drug dealer. We affirm defendant's conviction for the reasons stated hereafter, but hold the district court erred in departing downward below the range established by the sentencing guidelines.

I

We first address defendant's cross-appeal which, if successful, would invalidate his conviction. This case arose when law enforcement officers went to defendant's apartment to execute an arrest warrant on him. When the officers entered the apartment they found defendant and codefendant John Paul Wilbon in the living room. The officers saw in plain view on a dining room hutch two plastic bags containing what appeared to be cocaine base. They also found codefendant Geneva Gallegos hiding in a locked bathroom.

The officers searched defendant incident to the arrest and found that he had significant amounts of cash and some marijuana on his person. After obtaining a warrant to search the apartment, they found and seized cocaine base packaged in distribution quantities with a total weight of over 450 grams. Both defendant and Gallegos admitted they lived in the apartment. About a day after he was arrested defendant told an FBI agent that he knew the material found in the apartment was crack cocaine.

A grand jury indicted defendant, Wilbon, and Gallegos for possession with intent to distribute more than fifty grams of cocaine base. Wilbon pleaded guilty pursuant to Fed.R.Crim.P. 11(e)(1)(C) to possession with intent to distribute less than five grams of cocaine base, and was sentenced to thirty months pursuant to a plea agreement. Defendant and Gallegos were convicted in a jury trial.

Defendant's argument on appeal addresses a detective's testimony that he had encountered defendant before this arrest and defendant told him that "what he did for a living was he was a drug dealer." IV R. 188. Defense counsel objected without specifying the grounds and the court initially sustained the objection. At a bench conference the government asserted the testimony was an admission of a party opponent and "relevant to go to the--the defendant indicated he was unemployed at the time of his arrest, and there is unexplained wealth that the government is able to show in this apartment." Id. at 188-89; see Fed.R.Evid. 801(d)(2)(A). Defense counsel asked the district court to strike the statement and to instruct the jury to disregard it. Defense counsel asserted that the statement was Fed.R.Evid. 404(b) prior bad act evidence not disclosed to defendant before trial. The district court expressed concern that the witness not disclose that defendant made the statement during a prior arrest, but then stated that "I'm going to deny the defense objection to strike and instruct the jury to disregard that last statement. Go ahead." IV R. 191. Based on this colloquy defendant asserts that the court sustained its objection and agreed to instruct the jury to disregard the statement, which it never did. But we are satisfied that although the ruling was inartfully worded, the district court denied the defense's objection and its request to instruct the jury to disregard the testimony. That this was also defense counsel's understanding is supported by the fact that defense counsel did not pursue the matter when the district court failed to immediately give a curative instruction.

The district court's jury instructions did reference a statement by defendant which, because the statement was not identified, defendant argues could have confused the jury. The court stated:

You have heard testimony that the defendant, Levone Maden, made a statement. In determining whether any statement claimed to have been made by a defendant outside of court and after an alleged crime has been committed was knowingly and voluntarily made, you should consider the evidence concerning such a statement with caution and great care and should give such weight to the statement as you believe it deserves under all the circumstances.

IV R. 253 (emphasis added).

Inherent in defendant's assertion that the district court erroneously failed to instruct the jury to disregard the drug dealer testimony, or that its instruction confused the jury, is a claim that the "drug dealer" comment was character evidence not properly admitted under Fed.R.Evid. 404(a) and (b). Under Fed.R.Evid. 404(b), evidence of prior bad acts may not be admitted "to show bad character or propensity to commit a crime, but may be admitted to prove, among other things, intent or knowledge." United States v. Arias-Montoya, 967 F.2d 708, 709 (1st Cir.1992).

We note defense counsel did not object to the instruction. Indeed, we cannot determine from the appellate record whether this was an instruction submitted by the prosecution or the defense. The court noted that the only dispute over both parties' proffered jury instructions was over the use of Gallegos' "other name." IV R. 244-45. Thus, we review the instruction only for plain error. The district court was correct in ruling that such a statement is not considered hearsay, because it was made by defendant himself. See Fed.R.Evid. 801(d)(2)(A). But it should have been considered for its admissibility under Rule 404(b).

Some courts have expressed "doubt whether evidence of an occupation or status like 'drug dealer' falls within the realm of 'other crimes, wrongs, or acts' admissible to show knowledge or intent under Rule 404(b)." United States v. Brewer, 1 F.3d 1430, 1435 (4th Cir.1993) (citing United States v. Reed, 647 F.2d 678, 686 (6th Cir.) (testimony that defendants charged with receiving stolen goods were known burglars or fences not admissible under Fed.R.Evid. 404(b))), cert. denied, 454 U.S. 837, 1037, 102 S.Ct. 142, 580, 70 L.Ed.2d 118, 483 (1981). But evidence of prior drug transactions can be admissible to prove intent in drug prosecutions. See United States v. Elkins, 732 F.2d 1280, 1286 (6th Cir.1984) (prior cocaine deals observed by witness admissible to prove intent in cocaine prosecution). The defense at trial was that "the evidence showed only his presence and perhaps knowledge that a crime was committed, but failed to show that he himself was in possession of the cocaine base." Levone Maden's Brief on Cross-Appeal at 9. Thus, the officer's testimony that defendant told him he was a drug dealer was relevant to a matter at issue in the case--whether defendant had the intent to possess and distribute the cocaine found in his apartment. See, e.g., United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir.1990) (evidence of defendant's prior drug possession convictions admissible under Fed.R.Evid. 404(b) to negate his defense that he did not know car he had been driving contained cocaine); United States v. Molinares Charris, 822 F.2d 1213, 1220 (1st Cir.1987) (evidence of defendants' prior smuggling of controlled substances relevant to disprove claim of "mere presence"), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989).

The district court did not explicitly perform the required Fed.R.Evid. 403 balancing. But the colloquy at the time of the objection, in which the court expressed concern that the witness not disclose that defendant made the statement during an arrest, might be construed as weighing possible prejudice. Nevertheless, even if the district court erred in admitting the evidence of the "drug dealer" admission or in not being more specific in its limiting instruction, the error was harmless. When defendant was arrested in the apartment he shared with Gallegos the cocaine base was on a hutch in plain view. He had over $400 in cash in his pocket, and officers found a pager he had rented. After he was arrested defendant told an officer he knew the substance found was crack cocaine. Further, evidence was admitted at trial without objection from defense counsel that in December 1989 defendant sold crack cocaine to a confidential informant and was later convicted of selling crack cocaine. Given the substantial evidence against defendant the admission of his statement that he was a drug dealer is not reversible error. See United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc).

II

The government's appeal asserts that the district court abused its discretion in departing downward based on the disparity between defendant's guideline range and the sentence the court previously approved for codefendant Wilbon who entered a Rule 11(e)(1)(C) plea bargain to a different offense.

The presentence report calculated defendant's base offense level at 34 based on the 451.3 grams of cocaine base found in his apartment. His criminal history category was VI, and his...