U.S. v. Monroe

• Decision Date: 30 April 1993
• Docket Number: No. 91-3241,91-3241
• Citation: 990 F.2d 1370,301 U.S.App.D.C. 100
• Parties: UNITED STATES of America, v. Monica MONROE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1370

990 F.2d 1370

301 U.S.App.D.C. 100

UNITED STATES of America, v. Monica MONROE, Appellant.

No. 91-3241.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 12, 1993.

Decided April 30, 1993.

Howard Bramson (appointed by this court) for appellant.

James H. Dinan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Thomas C. Black, and Randall D. Eliason, Asst. U.S. Attys., were on the brief, for appellee.

Before MIKVA, Chief Judge, and SILBERMAN and BUCKLEY, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Monica Monroe challenges the sufficiency of the evidence produced at trial to support her conviction for aiding and abetting the possession with intent to distribute five grams or more of cocaine base under 21 U.S.C. §§ 841(a) and (b)(1)(B)(iii) and 18 U.S.C. § 2. Monroe also challenges her sentence. We find that the Government produced sufficient evidence to support her conviction and that the trial court correctly denied Monroe's request for a reduction in her sentence for acceptance of responsibility. We agree with Monroe, however, that the court erred by granting the Government's request for an enhancement to her sentence for obstruction of justice. We therefore vacate the sentence and remand the case for resentencing.

I. BACKGROUND

On August 28, 1990, plainclothes police officers investigating narcotics activity in the 5000 block of F Street, S.E., in Washington, D.C., observed what appeared to be narcotics transactions in the backyard of 5036 F Street, S.E. As one of the undercover officers moved closer, most of the people in the yard of 5036 F Street left, but a man and woman sitting a few feet apart from each other remained. The man was later identified as Robert Beckham, and the woman as the appellant, Monica Monroe.

Monroe asked the officer "if he was looking," and sold him 0.41 grams of cocaine base at a purity level of 89 percent. When the officer asked if he could obtain additional crack cocaine, Monroe replied, according to the police, "I only have this one, but you can get one from my buddy," indicating Robert Beckham. Monroe testified that she told the officer he "could get one from anybody out here."

At that point, Beckham stood up, walked to the bench on which Monroe was sitting, leaned down next to it, and picked up a plastic bag containing 34 additional pieces of cocaine base, which weighed a total of 13.02 grams with a purity level of 89 percent. As Beckham sat down on the bench next to Monroe and began to untie the bag, the police officer grabbed it and placed them both under arrest.

The original two-count indictment, filed September 27, 1990, charged Monroe with unlawful distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2 (the aiding and abetting statute). Although charged jointly, Beckham and Monroe were not tried together because Monroe did not appear at the original arraignment, which was scheduled for October 11, 1990.

In explanation of her absence from that proceeding, she asserts that her family did not receive the arraignment notice sent to her home until the day after the scheduled arraignment. Monroe's counsel stated at sentencing that she was in Philadelphia that day and that when she learned of the arraignment notice, she immediately called Pretrial Services and spoke with a Miss Bergin. Miss Bergin instructed Monroe to call back. Monroe did so several times, but she claims that Miss Bergin never told her what action to take. Transcript of Proceedings, August 20, 1991, at 3-4.

On December 21, 1990, Monroe was arrested on an outstanding bench warrant issued by the trial court on October 11, 1990. The court had severed Monroe's case from Robert Beckham's, and her trial commenced on March 5, 1991. At trial, the arresting officer testified that the 34 ziplock bags contained pieces of crack cocaine that appeared to be the same size and color as the piece he was given by Monroe. Officer David Stroud, an expert on the use, distribution, and packaging of illegal drugs, testified that most street level drug operations employ more than one person. He described the role of the "runner" (the person who secures customers for the drugs and at times has some to sell) and the "holder" (the person who controls the drugs and the money). Officer Stroud also stated that drugs of identical purity could very well have come from the same larger piece of crack cocaine.

Monroe moved unsuccessfully for a judgment of acquittal at the close of the Government's case-in-chief, and again at the close of her evidence. On March 7, 1991, the jury returned a verdict of guilty on both counts charged, namely, unlawful distribution of cocaine base and possession with intent to distribute cocaine base. On August 20, 1991, the court sentenced appellant to concurrent terms of imprisonment of 78 months on each count, to be followed by concurrent terms of supervised release of three years on the first count and four years on the second.

II. DISCUSSION

A. Sufficiency of the Evidence

Monroe argues that there was insufficient evidence to support her conviction for aiding and abetting possession with intent to distribute five grams or more of cocaine base.

As we have stated on numerous occasions, "[t]he standard for overturning a guilty verdict on the grounds of insufficiency of evidence is ... a demanding one." United States v. Lam Kwong-Wah, 924 F.2d 298, 302 (D.C.Cir.1991). We are "not a second jury weighing the evidence anew." United States v. Poston, 902 F.2d 90, 94 (D.C.Cir.1990). Rather, our role is limited to determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).

The United States Code provides that "[w]hoever ... aids, abets, counsels, commands, induces or procures [the] commission [of a crime] is punishable as a principal." 18 U.S.C. § 2(a) (1988). Under the "classic interpretation" of this offense,

[i]n order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." L. Hand, J., in United States v. Peoni, 100 F.2d 401, 402 [ (2d Cir.1938) ].

United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982) (quoting Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949)).

Monroe invokes our opinion in United States v. Poston, 902 F.2d 90 (D.C.Cir.1990), to argue that she may not be convicted of aiding and abetting possession with intent to distribute unless evidence is introduced of some affirmative conduct connecting her to Beckham's drug activities. In Poston, Monroe notes, we found that the defendant not only drove the seller to the point of sale, but acted as a lookout. Id. at 95. She contends that the evidence adduced at her trial shows only that she was present at the scene of the crime and that such presence qualifies as aiding and abetting only when it intentionally encourages or facilitates the criminal act. Monroe argues that her case is distinguishable from Poston because there was no evidence that she had taken any direct action to aid and abet Beckham's possession of the drugs at issue.

Monroe's analysis reflects some confusion over what evidence we require to support a conviction for aiding and abetting another's possession with intent to distribute. Monroe apparently suggests that the Government must show that she played some physical role, such as serving as a lookout, in securing or retaining possession of the drugs. The issue before us, then, is whether proof of Monroe's involvement in any aspect of Beckham's operation is enough to uphold her conviction.

It is true that in United States v. Raper, in a footnote discussing United States v. Jackson, 526 F.2d 1236 (5th Cir.1976), a case on which Raper relied, we indicated that Jackson held only that "one convicted of aiding or abetting the crime of possession with intent to distribute must give the required statutory support to the possession element of the offense as well as the intent to distribute." 676 F.2d at 851 n. 1 (emphasis in original). That statement, however, was not an endorsement of the Fifth Circuit's requirement of affirmative evidence that the defendant at some point actually or constructively possessed the drugs. We have since made our position on this point clear.

In United States v. Garrett, 720 F.2d 705 (D.C.Cir.1983), we wrote that "Jackson ignores the breadth of the aiding and abetting statute." Id. at 713 n. 4. We also affirmed that "18 U.S.C. § 2 codified the common law relating to accessories, making one who assists the perpetrator of the crime while sharing the requisite criminal intent liable as a principal." Id. at 713 (internal quotes omitted). We explained that to sustain a conviction for aiding and abetting, "all that is necessary is to show some affirmative participation which at least encourages the principal offender to commit the offense, with all its elements, as proscribed by the statute." Id. at 713-14. Thus, one may "abet" the crime of possession with intent to distribute by acting as a middleman, by "procuring the customers and maintaining the market in which the possession is profitable, even though [the defendant does] nothing else to help the possessor get or retain possession." United States v. Wesson, 889 F.2d 134, 135 (7th Cir.1989) (joining this circuit "in saying nay to Jackson ").

Under the law of this...