U.S. v. Roy

• Decision Date: 12 January 2007
• Docket Number: No. 05-3146.,05-3146.
• Parties: UNITED STATES of America, Appellee v. Garren J. ROY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.3d 1232

UNITED STATES of America, Appellee v. Garren J. ROY, Appellant.

No. 05-3146.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2006.

Decided January 12, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cr00171-02).

Kenneth D. Auerbach, appointed by the court, argued the cause for the appellant.

Jamila Z. Hoard, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and Roy W. McLeese III and Elizabeth Trosman, Assistant United States Attorneys, were on brief.

Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Garren J. Roy was convicted by a jury of four criminal counts, including one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Roy appeals the district court's denial of his motion for a mistrial based on the court's inadvertent submission to the jury of an indictment which identified two specific predicate crimes to support the felon-in-possession count. Roy had previously stipulated his felon status. See United States v. Jones, 67 F.3d 320, 325 n. 10 (D.C.Cir.1995). Reviewing for plain error, we affirm the district court on the ground that the indictment's submission did not prejudice Roy given the extensive curative measures the district court undertook and the strength of the case against Roy.

I.

On August 19, 2004, a second superseding indictment issued charging Roy with five counts of unlawful conduct: (1) possessing with intent to distribute 100 grams or more of phencyclidine (PCP) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iv); (2) possessing with intent to distribute cannabis in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); (3) using, carrying or possessing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); (4) felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and (5) felon-in-possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Before trial Roy moved to exclude evidence of his felon status, which the district court granted on July 9, 2004, directing that "the government prove the prior conviction for purposes of the essential element of th[e] 922(g) charge with a stipulation that does not identify the nature of the underlying crime" and that "the government not refer to the prior conviction, except as necessary, to explain [the] felony possession count to the jury." 7/9/04 Tr. 112.

Roy's trial began February 16, 2005 and concluded February 23, 2005. Viewed in the light most favorable to the government, see United States v. Garner, 396 F.3d 438, 439 (D.C.Cir.2005) (citing United States v. Whitmore, 359 F.3d 609, 613 (D.C.Cir.2004)), the evidence established the following facts.

On the evening of March 12, 2004, a group of Metropolitan Police Department officers met near an apartment building at 1941 Naylor Road, S.E. in Washington, D.C. to execute a search warrant for apartment No. 1 based on suspected drug activity in the apartment. As the officers approached the building, they "could smell a strong smell . . . of PCP and marijuana." 2/17/05 Tr. 36. Several of the officers entered the building, knocked on the door to apartment No. 1 and announced their presence. When there was no response, they entered the apartment forcibly. Once inside, the officers again detected "the strong smell of PCP, the chemical odor associated with PCP, and the strong smell associated with that of marijuana," id. 49, and heard the sound of an interior door closing. The officers headed down the hallway toward a closed bedroom door and en route noticed a silver and black handgun lying on the kitchen counter. The officers kicked the bedroom door open and saw an older man, Edward Williams, sitting on the bed and Roy lying on the floor near the window. Meanwhile, officers posted outside the building and watching through the bedroom window had seen Roy run into the bedroom and attempt to exit through the window; when he discovered it was secured with bars, the officers saw him lie down on the floor between the bed and the window as if to hide. When the officers inside the bedroom questioned Williams about the gun on the kitchen counter, Roy told them the gun was his. While one of the officers detained Roy and Williams there, the other officers began to search the rest of the apartment.

In the kitchen, the officers found the aforementioned gun—a loaded "Keltec semi-automatic hand gun"—lying "within inches" of five glass vials of a "clear liquid substance," id. 202, which was later identified as PCP; a "clear ziplock containing numerous empty zips" lying "[w]ithin a foot" of the gun, id. 203-04; "a clear glass vial with residue inside of it," id. 204; a shoebox with a bag inside "containing 100 grams of a green weed substance, and $35," id. 204; another box containing "90 grams of a loose weed substance, and two clear zips containing green weed substance, and 14 zips with residue," id. 206; a green "cardboard box containing fourteen grams of a green weed substance, and a box of ammunition with 38 rounds of 38 special ammunition," id. 207; three more ziplocks containing "numerous" clear, black and red ziplocks, id. 207, 208; a "black ammunition pouch with one speed loader," id. 207; three more glass vials "with residue," id. 208, 209; and in the freezer a glass vial "with a clear liquid substance," a tin containing "68 silver foil wraps" and a glass containing a "brown weed substance," id. 209. The officers also recovered from various locations in the apartment, including a second bedroom, a plastic grocery bag containing "glass vials with residue," id. 210; a box containing 50 rounds of "ten millimeter ammunition," id. 210; a pair of "camouflage coveralls" with $595 in the left front pocket and $1,945 in the right front pocket, id., 210-11; a "night vision scope" marked as property of the Prince George's County, Maryland government, id. 211; a "green holster," id. 212; a box containing 32 rounds of 380 caliber ammunition, id. 212; a blue backpack containing "392 rounds of assorted ammunition, and three magazines," id. 212-13; and a camouflage rifle case, id. 213.

Williams, who testified on behalf of the government pursuant to a plea agreement,¹ stated that Roy and his friends had frequented the apartment and kept clothes in the apartment's second bedroom for almost one year, ever since Williams's girlfriend, who was friendly with them, had moved out. A day or two before the search, Williams said, he was awakened around midnight by "a strong smell" of what he believed to be marijuana mixed with PCP. Id. 129-30. Williams went to the kitchen where he observed Roy at the kitchen counter with another man. Roy was dipping a small spoon into a jar of "[m]arijuana and PCP mixed" and packaging the "wet" marijuana into pieces of tinfoil, which he then folded and placed in "a little round can." Id. 131-32. Williams told Roy to get his drugs out of the apartment but Roy replied Williams should mind his own business and go back to his bedroom. Id. 133. According to Williams, he had changed the locks on the apartment but that did not keep Roy and his friends out and he was afraid to go to the police. Williams also testified that when he left for work at 4:00 a.m. the morning of March 12, 2004, he did not see the gun or drugs on the kitchen counter but when he returned that evening he saw the gun there and asked Roy why he had not removed it and the drugs from the apartment. In addition, Williams corroborated the officers' testimony that Roy had admitted owning the gun and that he had tried unsuccessfully to escape through the barred window.

For his part, Roy offered the testimony of his girlfriend and her mother to show that he in fact resided in the mother's house located next door to the Naylor Road apartment building and the testimony of a retired police officer to challenge the procedures used in handling and securing the seized evidence.

On the morning of February 23, 2005 the trial judge instructed the jurors and sent them to begin deliberating. After the jurors had left the courtroom, the judge suggested to counsel that the second superseding indictment be redacted before submitting it to the jury to delete a "notice of enhancement" clause that described alterations made to the gun. Both sides agreed and, after the clause was deleted, the judge asked his courtroom deputy to show the redacted indictment to counsel. The prosecutor replied "Thank you," 2/23/05 am Tr. 17; defense counsel was silent. The judge then announced, "All right, that can go back." Id. That afternoon, the jury sent the judge a note that it had reached a verdict. Before the judge recalled the jury, defense counsel informed the court that the version of the indictment that went to the jury identified two predicate felony convictions for the felon-in-possession counts, namely, "Assault With Intent to Kill" and "Use of a Handgun in the Commission of a Crime of Violence." Second Superseding Indictment filed 8/19/2004 at 2-3. Defense counsel explained that she "did not notice when it went back originally" and therefore was "asking for a redacted indictment to go back." 2/23/2005 pm Tr. 3. She then clarified that she wanted a version without the two prior felonies to "go back to the jurors with a note stating that . . . the wrong person's indictment went back originally." Id. While the judge and counsel were still conferring, Roy informed his counsel that he wanted a mistrial and his counsel so informed the court. Without ruling on the mistrial request, the judge proposed to recall the jurors, tell them that the indictment they had been given "incorrectly named . . . a prior conviction"—in fact it erroneously identified one of the...