U.S. v. Payne

• Decision Date: 21 November 1986
• Docket Number: No. 86-3002,86-3002
• Citation: 256 U.S. App. D.C. 358,805 F.2d 1062
• Parties: , 21 Fed. R. Evid. Serv. 1378 UNITED STATES of America v. Frederick V. PAYNE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1062

805 F.2d 1062

256 U.S.App.D.C. 358, 21 Fed. R. Evid. Serv. 1378

UNITED STATES of America v. Frederick V. PAYNE, Appellant.

No. 86-3002.

United States Court of Appeals District of Columbia Circuit.

Submitted Oct. 23, 1986.

Decided Nov. 21, 1986.

As Amended Nov. 21, 1986.

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00138-01).

William J. Garber, Washington, D.C., appointed by the court, was on the brief for appellant.

Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Thomas J. Tourish, Jr., Ronald Dixon and Anita J. Stephens, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and EDWARDS and STARR, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

Appellant Frederick Payne appeals his conviction for possession with intent to distribute a controlled substance, marijuana, in violation of 21 U.S.C. Sec. 841(a) (1982). Payne contends that the district court erred in admitting into evidence two loaded and operable pistols seized along with a large quantity of marijuana from his apartment. He also raises several instances of claimed instructional error. We find no error and therefore affirm.

I

On April 25, 1985, Payne and a co-defendant, Homero Martinez, were charged by indictment with possession with intent to distribute marijuana. Payne was also charged in the same indictment with possession of an unregistered firearm in violation of D.C.Code Ann. Secs. 6-1811(a), 6-1876 and unlawful possession of ammunition in violation of the same provisions. Prior to trial, the marijuana charge against Martinez and the two firearms charges against Payne were dismissed. ¹ However, Payne was then charged by information with possession of a controlled substance, cocaine, in violation of 21 U.S.C. Sec. 844(a) (1982). Payne proceeded to trial alone on charges of possession of cocaine and possession of marijuana with intent to distribute. On November 8, 1985, Payne was convicted of the marijuana charge and acquitted on the cocaine charge.

The background leading up to the two drug charges is as follows: On March 28, 1985, agents of the Federal Bureau of Investigation (FBI) and officers of the Metropolitan Police Department (MPD) executed a search warrant for 520 E Street, Northeast, Apartment 303. The lessee of the apartment was one Emma Henson. It is undisputed, however, that Payne considered the apartment to be his home, having lived there with Ms. Henson since 1982. As FBI Special Agent James Glass and several MPD officers entered the apartment building, Special Agent Patrick Gray and two other MPD officers stationed themselves outside. From his vantage point, Agent Gray could see the windows of Apartment 303, situated on the third floor. At the moment Agent Glass was forcibly gaining entry to the apartment, Agent Gray watched as one of the apartment windows opened and a large green plastic trash bag was thrown onto the street below. This bag was recovered and found to contain twelve to thirteen small plastic bags containing what later proved to be marijuana. Leaving the trash bag in the custody of the MPD officers, Agent Gray then joined Agent Glass inside the apartment where he recovered three half-bales of marijuana. One bale was recovered from the kitchen and two others from a brown suitcase found in the hallway inside the apartment. A triple beam scale, a kitchen scale, $86 in currency and seven boxes of zip-lock plastic bags were also recovered.

Agent Glass, who in the company of several MPD officers first gained entry into the apartment, testified that after entering, he proceeded directly to the dining room where he observed Payne throwing an object out the window. A plastic zip-lock bag containing marijuana was at Payne's feet. Agent Glass then recovered two loaded pistols. A .357 magnum revolver was found on the floor beside Payne's bed, and a .38 revolver in a leather pouch on the dining room table. Also contained in the pouch was a small quantity of what proved to be cocaine. Both weapons were fully loaded. The .357 magnum was loaded with hollow point shells.

At trial, the Government presented testimony that approximately forty pounds of marijuana were recovered from Payne's apartment. According to the Government's expert, this amount of marijuana had a potential street value of $20,000-$60,000. The expert opined that such a quantity of marijuana "far exceeds" what an individual would have for personal use.

In addition to the marijuana, the Government introduced into evidence the scales, money, zip-lock bags and guns recovered from Payne's apartment. According to the Government's expert, all these materials were consistent with a drug trafficking operation. The expert opined that the scales, particularly the intricate triple beam scale, are used in the process of breaking down marijuana "bricks" or "bales" into smaller, more marketable quantities known as "lids." These "lids" are then packaged for distribution in plastic zip-lock bags. The expert further opined that drug dealers frequently carry weapons to protect themselves and their drug supply. Over objection, the weapons were introduced into evidence. ²

Payne's defense was one of complete denial. He testified that on the morning of his arrest, he was approached outside his apartment by Homero Martinez. Martinez carrying a brown suitcase, told Payne, "I have something for you." Once inside the apartment, Martinez opened the suitcase, revealing a substantial amount of marijuana. By his account, Payne immediately told Martinez that he "didn't want to get involved" and ordered him "to take [the drugs] out of [his] apartment." ³ Payne also denied that the weapons found in his apartment were for the purpose of protecting a drug trafficking operation. He maintained that the .38 revolver was for his personal protection and that he was keeping the .357 magnum for a friend.

II

Payne contends, first, that the guns were admitted only to show that he is a person of bad character and accordingly should have been excluded under Federal Rule of Evidence 404. That Rule provides that "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Fed.R.Evid. 404(a). However, the Rule goes on to provide in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evid. 404(b).

In this case, the Government was required to prove not only that Payne possessed the marijuana seized from the apartment, but that he did so with the specific intent to distribute. Intent being properly at issue, and accordingly being subject to proof by relevant, probative evidence, the Government offered testimony that the amount of marijuana seized was "far in excess" of an amount suitable for personal use. As we previously recounted, the prosecution also offered into evidence paraphernalia frequently associated with marijuana dealers, namely, scales and zip-lock bags, to further demonstrate the requisite intent. This evidence was squarely relevant on the issue of intent and thus properly admitted. See United States v. Raper, 676 F.2d 841, 845 (D.C.Cir.1982). The issue presented here is whether the guns seized from Payne's apartment were similarly admissible.

In United States v. McDowell, 762 F.2d 1072 (D.C.Cir.1985), we held that a bullet proof vest was properly admitted as evidence of intent to distribute narcotics. ⁴ The court concluded that the vest was offered not as proof of bad character, but, instead, was "logically part of the specific equipment McDowell might use in selling the drug." Id. at 1075. The vest "thus tended to show that McDowell intended to make such sales." Id. In our view, McDowell 's reasoning applies here. Indeed, it has uniformly been recognized that substantial dealers in narcotics possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia. United States v. Sarda-Villa, 760 F.2d 1232, 1234 n. 1 (11th Cir.1985); United States v. Adams, 759 F.2d 1099, 1109 (3rd Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985); United States v. Collazo, 732 F.2d 1200, 1206 (4th Cir.1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 773 (1985); United States v. Arnott, 704 F.2d 322, 326 (6th Cir.), cert. denied, 464 U.S. 948, 104 S.Ct. 364, 78 L.Ed.2d 325 (1983); United States v. Romero, 692 F.2d 699, 705 (10th Cir.1982); United States v. Perez, 648 F.2d 219, 224 (5th Cir.), cert. denied, 454 U.S. 1055, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981); United States v. Picklesimer, 585 F.2d 1199, 1204 (3rd Cir.1978); United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); United States v. Cannon, 472 F.2d 144, 145 (9th Cir.1972). In addition to the overwhelming weight of authority from other circuits, with which we agree, this court has previously had occasion to recognize the connection between weapons and narcotics distribution. See White v. United States, 648 F.2d 29, 34 n. 29 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981).

Because the guns were not offered as evidence of Payne's character, their admission was not barred by Rule 404(a). Further, because the guns were directly relevant to the issue of Payne's intent to distribute, they were admissible under Rule 404(b). ⁵

Payne's fallback position is that, even if admissible under Rule 404, the guns should have been excluded under Federal Rule of Evidence 403. Rule 403 states in part that "evidence may be excluded if its probative value is substantially outweighed...