U.S. v. McCrory

• Decision Date: 12 April 1991
• Docket Number: No. 89-3211,89-3211
• Citation: 930 F.2d 63
• Parties: , 59 USLW 2653 UNITED STATES of America v. Keith A. McCRORY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 63

930 F.2d 63

289 U.S.App.D.C. 178, 59 USLW 2653

UNITED STATES of America v. Keith A. McCRORY, Appellant.

No. 89-3211.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 19, 1990.

Decided April 12, 1991.

Appeal from the United States District Court for the District of Columbia (Criminal No. 89-0075-01).

Mary E. Davis (appointed by this Court), with whom Christopher M. Davis, Washington, D.C., was on the brief, for appellant.

Barbara J. Valliere, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Nancy Woodward, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before RUTH B. GINSBURG, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge SILBERMAN.

SENTELLE, Circuit Judge:

Keith A. McCrory ("McCrory" or "appellant") was convicted on a one-count indictment for distribution of a mixture of cocaine base in violation of 21 U.S.C. Sec. 841(a) and sentenced to 235 months' imprisonment. On appeal he argues that: (1) the district court erred in calculating his sentence under the United States Sentencing Guidelines ("the Guidelines") when it considered evidence excluded at trial of large quantities of crack cocaine, guns, money, and jewelry seized from his person and the apartment at which he was arrested; (2) the district court erred in denying appellant's motion for mistrial for the government's late compliance with a discovery request; (3) the district court erred in failing to strike testimony which referred to evidence excluded at trial (jewelry confiscated from appellant's person); and (4) the prosecutor's improper comments during closing and rebuttal arguments prejudiced appellant. For the reasons set forth below, we reject each of these challenges and affirm McCrory's conviction and sentence.

I. BACKGROUND

On February 22, 1989, Metropolitan Police Department Undercover Officers Sean Rollins and Michelle Jones arrived at 870 Southern Avenue, N.E., in Washington, D.C., to buy drugs. The officers approached McCrory in the doorway of Apartment 204 and stated "Connie" sent them to get a "working 50" (slang for $50 worth of crack cocaine). Upon McCrory's invitation, Officers Rollins and Jones entered the living room area of Apartment 204 and repeated their request. McCrory went to a back room and promptly returned with several plastic bags, which he dropped into Officer Rollins's hand. The officers inspected the bags, chose the largest one, paid McCrory $50 in prerecorded funds, and departed.

Outside, the officers field-tested the contents of the plastic bag and determined that the substance was 792 milligrams of 70 percent pure cocaine base. Then, the officers broadcast McCrory's description and precise location to an awaiting arrest team. Sergeant James Vucci, a member of the responding arrest team, forcibly entered Apartment 204 and detained McCrory, who matched the broadcast description. Vucci searched appellant's person, removing a gold nugget ring inscribed with the name "Keith" in diamonds, a Seiko watch with a gold leather band, and several gold chains. After Rollins and Jones identified McCrory as the person from whom they had purchased the crack cocaine ten minutes earlier, Vucci arrested him and charged him with cocaine distribution.

McCrory filed a Motion to Suppress Evidence, arguing that because the arrest team broke down the door of Apartment 204 without a warrant, the arrest and subsequent searches of McCrory and the apartment were illegal and the court therefore must suppress all the evidence seized, including the crack cocaine, weapons, and paraphernalia found in the apartment, and a sum of money found on McCrory. The government responded that it would not introduce any evidence seized from McCrory or the apartment in its case-in-chief, reserving the right to address the issue of McCrory's standing to raise the Fourth Amendment claim if it became necessary to use the evidence in cross-examination or rebuttal.

During a pretrial hearing, the government informed the district court that the parties had agreed that it would introduce only evidence supporting the distribution charge in its case-in-chief. The government explicitly stated that it would introduce all of the seized evidence at sentencing, and, should appellant "open the door," would seek to introduce the evidence at trial.

At trial, the prosecution's evidence was consistent with the facts set forth above. Appellant presented no evidence. On September 18, 1989, appellant was convicted. At the sentencing hearing, the government contended that the Presentence Investigation Report, which calculated a base offense level of 18, did not take into consideration McCrory's "relevant conduct" as defined by United States Sentencing Commission, Guidelines Manual : Relevant Conduct (Factors that Determine the Guideline Range)

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;

(2) solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction; ...

U.S.S.G. Sec. 1B1.3(a)(1) & (2) (1989). The government reasoned that it is a fundamental principle of sentencing under the Guidelines that the court have available all relevant and reliable information regarding the defendant and the offense of conviction to insure that it sets a proper sentence. To support the calculation of McCrory's base offense level, the government introduced all of the evidence seized as well as testimony from several witnesses.

Robin Plater, lessee of Apartment 201, testified by affidavit that several young men from New York, including appellant, had "taken over her apartment" after she had "messed over" some drug money (i.e., accounted for neither the drugs nor the money with which she had been entrusted). The approximately six to ten New York teenagers, with appellant and "Whitey" as ringleaders, used her apartment as a cocaine distribution center. Appellant and Whitey "ran the show." The drugs arrived from New York by truck in large lunch bags and then were split "into G-packs," plastic bags containing $1,000 worth of crack cocaine. Appellant and Whitey distributed the G-packs to the other juveniles who would then go out and sell the crack. Plater further stated that McCrory and the others were armed with "an Uzi, a Tech-22, ... some handguns, [and] sawed-off shotguns" and "had a stash [of crack cocaine] over at Connie's house in apartment 204" along with additional guns.

The government presented a statement from Connie Evans, lessee of Apartment 204 (where the drug distribution and arrest occurred), that she had been living in Apartment 204 with her son, her niece, and her niece's son for approximately three years. Evans left the apartment on February 21, 1989, to visit a friend. On February 22, her niece telephoned and told her that appellant and another man had moved drugs into the apartment and had begun selling them. Evans claimed that she told her niece to direct appellant to remove the drugs from the apartment; that she did not "want to deal with it;" and that she knew appellant and "the New Yorkers were selling drugs" from Apartment 201, but would not let them operate out of Apartment 204.

Detective Hayes testified that he received a telephone call from Robin Plater in which she disclosed the details of McCrory's drug activities out of both apartments.

Investigator Mueller described appellant's arrest and the subsequent search. He testified that after the officers secured Apartment 204 and obtained a search warrant, they searched the apartment and recovered evidence including, inter alia: large ziplock bags containing hundreds of smaller ziplock bags filled with crack cocaine; a wide variety of firearms and ammunitions; scales; a walkie-talkie; the $50 in prerecorded funds earlier dispensed to Officer Rollins; and drug paraphernalia. The prosecution had not introduced any of this evidence in its case-in-chief pursuant to the agreement between the parties, but only relied upon the evidence at sentencing to support its position as to the proper calculation of appellant's base offense level. Appellant presented no evidence in rebuttal.

This evidence supported a conclusion that appellant's "relevant conduct" included his possession with intent to distribute the entire amount of crack cocaine, as much as "a kilo and a half" seized from Apartment 204. The district court, therefore, set a base offense level of 36 in accordance with the requirements of the Guidelines Secs. 2D1.1(a)(3) & (c)(3), and not 18 as recommended in the Presentence Investigation Report. The court adjusted the offense level upward by two levels to 38 because of the presence of weapons in accordance with the Guidelines Sec. 2D1.1(b)(1), which provides "[i]f a dangerous weapon (including a firearm) was possessed during commission of the offense, increase by 2 levels." Accordingly, the district court placed McCrory in the sentencing range of 235-293 months' imprisonment instead of 27 to 33 months' imprisonment. The court exercised its discretion and sentenced McCrory to 235 months in prison, the...