U.S. v. Mitchell, s. 91-3315
| Decision Date | 02 July 1993 |
| Docket Number | Nos. 91-3315,91-3324 and 91-3058,s. 91-3315 |
| Citation | 302 U.S.App. D.C. 153,996 F.2d 419 |
| Parties | , 38 Fed. R. Evid. Serv. 486 UNITED STATES of America v. Keith Len MITCHELL, Appellant. UNITED STATES of America v. Richard Leroy BOWE, Appellant. UNITED STATES of America v. Janet Arnice WILSON, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (91CR00412-01, -02 and -03).
James T. Maloney (appointed by the Court), argued the cause for appellant Richard L. Bowe in No. 91-3324.
Ellen Berry, Asst. Federal Public Defender, argued the cause for appellant Keith L. Mitchell in No. 91-3515. With her on the brief was A.J. Kramer, Federal Public Defender.
Thomas F. Dunn (appointed by the Court), argued the cause for appellant Janet A. Wilson in No. 92-3058.
Barbara K. Bracher, Asst. U.S. Atty., argued the cause for appellee. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black and Mary B. Murphy, Asst. U.S. Attys.
Before: SILBERMAN, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
Keith L. Mitchell, Richard L. Bowe and Janet A. Wilson were tried before a jury in United States district court and convicted of possession with intent to distribute crack cocaine. Appellants challenge their convictions in this consolidated appeal.
Appellant Wilson raises only one claim in her appeal: that the district judge erred in denying her motion for a mistrial after a juror was contacted by someone close to appellant Mitchell. We can quickly dispose of the argument. The ex parte communication was a phone call to one of the jurors from a man the juror thought was defendant Mitchell's uncle, but apparently was the uncle of Mitchell's girlfriend. The juror notified the court of the contact, and the court excused her from service. The court also conducted a voir dire of her and all the other jurors and determined that the contact would not prejudice the trial in any way. The inquiry was sufficient, and on the resulting record the decision was completely reasonable. See United States v. Butler, 822 F.2d 1191, 1196 (D.C.Cir.1987). We affirm Wilson's conviction.
Appellants Mitchell and Bowe raise two different claims: (1) that no reasonable jury could find that they had either constructively possessed the cocaine found concealed on Wilson or had aided and abetted Wilson in her crime; and (2) that the trial judge erred in admitting the testimony of the government's drug expert because he impermissibly testified as to the defendants' intent and guilt, and because his testimony was more prejudicial than probative. On the first point, we find that there was enough evidence to uphold the convictions. On the second, we find that the government expert's testimony violated Federal Rule of Evidence 704(b) by speaking directly to the intent of the defendants. No proper objection on grounds of rule 704(b) was made, however, and we find that admission of the testimony was not plain error.
* * *
On June 20, 1991, officers from the Washington Metropolitan Police Department set up an observation post on the 2600 block of 13th Street, N.W. From their post the officers observed and videotaped suspected drug activities at three adjacent apartment buildings. As part of the operation, undercover officer Towanna May met with Janet Wilson to purchase drugs. To arrange a sale of a quarter-ounce of crack cocaine to Officer May, Wilson introduced May to defendant Bowe, saying his dope was better than that of "Jamaica Mike", a previous supplier. Bowe sold $50 worth of cocaine to May at that time, and told her to call him the next day to arrange the larger purchase. On June 21, 1991, Officer May returned for that purpose and encountered Bowe, and then Mitchell and Wilson. Mitchell offered to combine his drugs with Bowe's, and Bowe proposed to sell May a total of ten rocks for $300. Bowe and Mitchell had only six rocks on hand, however; after they transferred the six to May, Wilson told May to wait in an apartment while she went with Mitchell for the balance.
When Mitchell and Wilson returned, they went into a bedroom with May, and helped her to select the additional four rocks from a towel full of small ziplock bags which Mitchell had brought back with him. May paid $25 to Wilson and $300 to Mitchell. Upon returning to the surveillance team, May described the three defendants. Ms. Wilson was soon after arrested in front of one of the apartment buildings, and the ensuing search revealed nine ziplock bags of cocaine concealed in her bra. Bowe and Mitchell were arrested as they walked away from the apartment buildings; neither was carrying any drugs.
All three defendants were indicted on multiple counts of narcotics violations. The $50 sale on June 20 and the $300 sale on June 21 were each reflected in charges of distribution of crack cocaine and distribution of crack cocaine within 1000 feet of a school, in violation of21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), 841(b)(1)(C), 860(a) and 18 U.S.C. § 2, for a total of four counts, while the rocks found in Wilson's bra were reflected in a charge of possession with intent to distribute crack, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. The jury found all three defendants guilty on the possession count. It acquitted on the June 20 distribution charges and could not reach a verdict on those relating to the June 21 sale. The trial judge declared a mistrial on the latter counts.
Sufficiency of the evidence
Bowe and Mitchell argue that the government introduced insufficient evidence for the jury reasonably to conclude that they constructively possessed the drugs found in Wilson's bra, or that they aided and abetted Wilson in her possession with intent to distribute--the two theories argued by the government to show their unlawful possession. As the evidence adequately supports conviction on the aiding and abetting charge, we need not reach the constructive possession theory.
To sustain an aiding and abetting conviction, the government must show that the defendants had "sufficient knowledge and participation to indicate that [they] knowingly and willfully participated in the offense in a manner that indicated [they] intended to make it succeed." United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982); see also United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (L. Hand, J.).
Mitchell and Bowe argue that the government fell short of meeting its burden because it produced no direct evidence that they knew Wilson had drugs in her bra or that they tried to facilitate the sale of those particular drugs. Mitchell acknowledges evidence that the three codefendants had combined to distribute ten bags of cocaine base just before they were arrested, but argues that the jury had no basis for inferring that Mitchell would entrust Wilson with the drugs. Bowe simply argues that there was no evidence that he was present when Wilson concealed the drugs.
The government clearly presented powerful evidence of Wilson's involvement with Mitchell's and Bowe's prior drug transactions, supporting an inference of general cooperation among the three in the field of drug distribution. More importantly, when Mitchell returned to the apartment with Wilson, he had a towel containing numerous ziplock bags containing cocaine rocks, only four of which were needed to make up the ten that he and Bowe proposed to sell to May. A very short time later, Mitchell had no drugs on him upon leaving the building, but Wilson had nine ziplock bags of cocaine. It was not unreasonable for a jury to be convinced (beyond a reasonable doubt) that Mitchell had given his drugs to Wilson to conceal and--given their prior relationship--ultimately to sell. And Bowe was clearly in cahoots with Mitchell with respect to the distribution of precisely these drugs.
Reviewing the evidence in the light most favorable to the government, United States v. Jefferson, 974 F.2d 201, 205 (D.C.Cir.1992), we find that a reasonable jury could have found beyond a reasonable doubt that Bowe and Mitchell aided and abetted Wilson.
Misuse of expert testimony
Appellants' second claim is more compelling. At trial, the government called Officer David Stroud to testify as an expert on packaging and distribution of crack cocaine in the District of Columbia. Appellants claim that part of Stroud's testimony was admitted in violation of Fed.R.Evid. 704(b), which states that
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.
The testimony at issue consisted of the following question and answer in the government's direct examination of Stroud Q: Now, what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?
A: It was intent to distribute.
At that point Wilson's counsel objected on grounds that there was no factual basis for the inference of distribution. Mitchell's counsel objected on grounds that the question should have been phrased as a hypothetical, but withdrew her objection when Bowe's counsel indicated that he didn't like hypotheticals. When the examination resumed, the following exchange occurred without objection:
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