U.S. v. Raper, Nos. 81-1275

• Citation: 219 U.S. App. D.C. 243,676 F.2d 841
• Decision Date: 30 April 1982
• Docket Number: 81-1302,Nos. 81-1275
• Parties: , 10 Fed. R. Evid. Serv. 466 UNITED STATES of America v. William A. RAPER, Appellant. UNITED STATES of America v. Eli B. CHILDS, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 841

676 F.2d 841

219 U.S.App.D.C. 243, 10 Fed. R. Evid. Serv. 466

UNITED STATES of America v. William A. RAPER, Appellant.

UNITED STATES of America v. Eli B. CHILDS, Jr., Appellant.

Nos. 81-1275, 81-1302.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 23, 1981.

Decided April 30, 1982.

Appeal from the United States District Court for the District of Columbia (Criminal No. 80-00535).

Sally Katzen, Washington, D. C. (appointed by this Court), with whom Thomas F. Connell, Washington, D. C., was on the brief, for appellant Raper in No. 81-1275.

Fred C. Zacharias, Washington, D. C. (appointed by this Court), with whom William A. Dobrovir, Washington, D. C., was on the brief, for appellant Childs in No. 81-1302.

Sylvia Royce, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry, John R. Fisher and Robert B. Cornell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before MacKINNON, ROBB and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

Opinion concurring in part and dissenting in part filed by Circuit Judge HARRY T. EDWARDS.

MacKINNON, Circuit Judge:

Appellants Eli B. Childs and William A. Raper were indicted in Count I charging possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a). The indictment on this count specifically cited and relied upon the aiding and abetting statute, 18 U.S.C. § 2. Count II charged unlawful possession of heroin in violation of D.C.Code § 33-402 and also relied upon the D.C. aiding and abetting statute, D.C.Code § 22-105 (1973). A jury trial concluded with verdicts of guilty against both appellants on the federal charge of possession with intent to distribute. The D.C. charge was subsequently dismissed. Childs and Raper appeal their respective convictions on procedural grounds. Raper also contends that the absence of any evidence of his actual "possession" of the heroin leaves the record with insufficient evidence to support his conviction of possession with intent to distribute. The government contends that his acts which aided and abetted Childs in his possession with intent to distribute justify his conviction as a principal under 18 U.S.C. § 2. We affirm the convictions of both appellants.

I

In the evening of November 5, 1980, at approximately 7:15 p. m., Officer James Francis of the District of Columbia Metropolitan Police Department was assigned with two other officers to uncover narcotics trafficking in the 1300 block of W Street, N.W. (Tr. 94-95). This is an area where there exists a "high narcotics trafficking of heroin." (Tr. 5). Using binoculars from a vantage point in a nearby building (Tr. 95), Francis observed appellants Raper and Childs converging near the intersection of 14th and W. (Tr. 96, 104-105). Appellants spoke briefly when they met, then they separated and Raper walked five or six feet away and confronted an unidentified "Third Man." Following little or no verbal exchange, the Third Man handed Raper some paper money (Tr. 97, 109) but was not Officer Francis concluded that a narcotics transaction had taken place and immediately radioed the two other officers, Willis and Falkosky, who promptly approached Raper and Childs and placed them under arrest. (Tr. 99, 176-77). The officers then searched appellants. They found $66.00 on Raper's person (Tr. 101) and, on closer inspection, following an inconclusive first search, found thirteen packets ("quarters") of heroin secreted in glassine packets in Childs' underwear. (Tr. 119, 209-10, 210-15). The officers also found that Childs' trench coat had an inside slit in the right-hand pocket, through which Childs could reach straight through to his underwear and obtain the packaged heroin. (Tr. 182).

observed to receive anything in return. Raper next approached Childs, spoke briefly with him and then moved a short distance away. The Third Man then walked to Childs, who put his hand in the right pocket of his trench coat (Tr. 112), withdrew it, and without more ado placed his hand in the upturned palm of the Third Man, who in turn closed his hand, turned and briskly walked away. (Tr. 98, 110, 112).

At trial, Detective Johnny St. V. Brown qualified as an expert witness for the government on D.C. narcotics transactions. He testified that the quantity of heroin found on Childs' person was more than could reasonably be assumed to be for strictly "personal" use; (Tr. 258-259) that the typical street price for one "quarter" of heroin as of November 1980 was $40-$60 (Tr. 250); and that the transactional activities employed by appellants and the Third Man were typical of the "team" procedures employed by some narcotics traffickers in the D.C. area. One man possesses the drugs, the other man receives the money from the purchaser. Then the possessor on word or sign from his accomplice delivers the drugs to the purchaser who paid his accomplice.

Those engaged in distributing drugs apparently think there are some advantages afforded them by operating in this manner. They reason that the man who receives the money, if arrested and charged, can assert that he never possessed the drugs because he would not have any drugs on his person. The other member of the team who possesses the drugs believes that he can protect against conviction by showing he never received any money, and he even might contend that the drugs he did possess were for his own use and not for distribution. The "team" procedure also has a personal security aspect in that any robber or law enforcement officer would have two men to deal with, and splitting the money and the heroin between them might make it possible to save one or the other. In any event when two men use the team method, additional proof is required and in some circumstances one participant may escape arrest. If only one person was arrested, the case would involve additional prosecutive difficulties. (Tr. 248-250).

Appellants testified that their presence in the vicinity where they were arrested had nothing whatsoever to do with the alleged narcotics sale; (Tr. 279-83) and Childs modeled a trench coat for the jury that he was allegedly wearing at the time of arrest and claimed that the coat had no slit in the pocket as described by the arresting officer. (Tr. 306-310). That testimony was impeached moments later, however, when the government produced a picture of Childs when he was arrested at the scene which showed Childs wearing a different coat. (Tr. 313-14). Childs quickly "corrected" his testimony by saying that he had been wearing his father's coat when arrested. (Tr. 326).

The jury found both appellants guilty of "possession with intent to distribute" and each received a sentence of two to eight years in prison, with a special parole term of three years. The offense of simple possession charged under the D.C. Code was dismissed by the judgment.

II

Appellant Childs does not attack the sufficiency of the evidence but challenges his conviction on several procedural grounds. He contends that his conviction should be reversed on the grounds (1) that a portion

of the trial was conducted in his absence in violation of Fed.R.Crim.P. 43; (2) that the trial court allegedly improperly refused to permit him to take the stand for the limited purpose of testifying about the trench coat; (3) that the trial court violated Fed.R.Crim.P. 30 by instructing the jury on the "defendant as a witness" theory and on the "aiding and abetting" charge after assuring counsel prior to closing argument that no such instructions would be given; and (4) that the trial court erred and confused the jury by giving them instructions on aiding and abetting possession with intent to distribute, a crime Childs "could not possibly have been guilty of." We find the arguments in support of these points to be unpersuasive.

(a) The sufficiency of the evidence against Childs.

Childs was found at the scene of the crime in possession of a quantity of heroin in his underwear that was far greater than that "needed" for "personal use." Our decision in United States v. Staten, 581 F.2d 878, 886 (D.C.Cir.1978), by Judge Robinson states: "Our decisions in the recent past have made clear that intent to distribute may be inferred from possession of drug-packaging paraphernalia or of a quantity of drugs larger than needed for personal use." Citing United States v. Herron, 567 F.2d 510, 513 (D.C.Cir.1977); United States v. Davis, 562 F.2d 681, 685-86 (D.C.Cir.1977); and United States v. James, 494 F.2d 1007, 1031 (D.C.Cir.), cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). In our judgment the packaging and concealment here of the amount of heroin that exceeded the amount necessary for the possessors immediate personal use, and the possession of such heroin on the street in an area known for its "high narcotic trafficking of heroin" (Tr. 5) also tends to support an intent to distribute.

In addition to the fact that the quantity indicates an intent to distribute, after the Third Man handed Raper some paper money, Childs was seen by Officer Francis to reach into his trench coat pocket, where he had access to heroin (in "quarters"), and then, after extracting his hand, to place it in the palm of the Third Man, who immediately closed his hand and walked away. The amount of money found on Raper's person immediately after his arrest was approximately the price then being charged for a "quarter" of heroin. On all of such evidence the jury found that Childs beyond a reasonable doubt was guilty of possession of heroin with intent to distribute. We agree that the record supports the jury verdict.

(b) The continuance of the trial in Childs' absence.

Childs claims that the court improperly continued the trial in his absence in violation of Rule 43 of Fed.R.Crim.P., which provides:

Rule 43. Presence of the Defendant.

(a)...