U.S. v. Small

• Decision Date: 30 January 1996
• Docket Number: No. 93-3161,93-3161
• Parties: UNITED STATES of America, Appellee, v. James SMALL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1276

74 F.3d 1276

UNITED STATES of America, Appellee, v. James SMALL, Appellant.

No. 93-3161.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 7, 1995.

Decided Jan. 30, 1996.

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, was on the briefs.

Elizabeth H. Danello, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Roy W. McLeese, III, and Kathleen M. O'Connor, Assistant United States Attorneys, were on the brief. Elizabeth Trosman, Assistant United States Attorney, entered an appearance.

Before: EDWARDS, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellant James Small appeals his conviction of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 841(a) (1988), on the grounds that: (1) the prosecutor's prejudicial references in opening and closing arguments to the jury about matters never put into evidence denied Small a fair trial; (2) the district court abused its discretion by denying a mistrial after the government, in violation of Federal Rule of Criminal Procedure 16, unexpectedly used Small's prejudicial non-verbal statement communicating consciousness of guilt; and (3) the district court erred in refusing to postpone sentencing so that the drugs could be reweighed. Although the prosecutor erred by referring during opening and closing arguments to matters not in evidence, Small has failed to show a sufficient likelihood that the prosecutor's statements prevented the jury from properly weighing the evidence, particularly given the split verdict of the jury, which acquitted Small of the charge to which his defense of innocent presence might have applied. Additionally, we find no violation of Rule 16 in light of the ambiguous and non-communicative conduct; moreover, Small has shown no prejudice. Finally, we find no error by the district court in refusing to postpone sentencing to have the drugs reweighed when the defense failed to alert the court to any problem until the day of sentencing and then proffered no basis for doubting the weight. Accordingly, we affirm.

I.

Small was arrested as a result of drugs being found in an Amtrak sleeper car after a review of an Amtrak reservation form by Amtrak officials caused them to suspect that Small and his companion might be drug couriers. Amtrak Investigator Thomas Cook, accompanied by Detective Barbara Lyles and Investigator Maria Pena of the Metropolitan Police Department, confronted Small and his companion in the sleeper car. After conversing with the two men about their tickets, identification, and destination, Cook decided to search the sleeper car. Small, before stepping out into the hallway so that Cook could search the car, put on his socks and sneakers. Cook thereafter found a packet of white rock substance, later determined to weigh 35.69 grams, underneath the roll of toilet paper in the bathroom. Small and his companion were arrested and, upon searching Small, in the presence of the two officers, Cook found 54.47 grams of crack cocaine in Small's sock. Cook also seized $306 in currency from Small.

Small was indicted for two counts of possession with intent to distribute crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A)(iii) & (b)(1)(B)(iii) and 18 U.S.C. Sec. 2. Following the district court's denial of Small's motion to suppress the evidence, the jury acquitted Small of count one, relating to the bathroom drugs, but convicted him of count two, possession with intent to distribute the drugs found in his sock. The district court, upon determining that the 35.69 grams found in the bathroom was "relevant conduct" under the Sentencing Guidelines, United States Sentencing Guidelines (U.S.S.G.) Sec. 1B1.3(a) (1995), to be added to the weight of the 54.47 grams found in Small's sock for purposes of determining his base offense level, sentenced Small to the mandatory minimum of ten years' imprisonment followed by five years of supervised release.

II.

This circuit has long made clear that the government must take care to ensure that statements made in opening and closing arguments to the jury are supported by evidence introduced at trial. In Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969), the court viewed such rigor to be required by Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), where the Supreme Court observed "that the interest of the Government in a criminal prosecution 'is not that it shall win a case, but that justice shall be done,' and that 'the average jury ... has confidence that these obligations [of fairness and accuracy] ... will be faithfully observed.' " Notwithstanding the prosecutor's good faith and jury instructions that arguments of counsel are not evidence, the Gaither court concluded that the court "must carefully examine the error committed to determine whether it sufficiently prejudiced [the defendants] to call for reversal." Gaither, 413 F.2d at 1079. The defendant must show substantial prejudice. United States v. Perholtz, 842 F.2d 343, 361 (D.C.Cir.1988); United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). In assessing prejudice, the Gaither court built on the harmless-error analysis in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), and identified three factors: "the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error." 413 F.2d at 1079 (footnotes omitted). This court has continued to apply the Gaither analysis to claims of prosecutorial misconduct. See Perholtz, 842 F.2d at 361; United States v. Jordan, 810 F.2d 262, 265 (D.C.Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987).

Small contends that the prosecutor's opening and closing arguments to the jury denied him a fair trial. Specifically, Small points to the fact that in opening statement the prosecutor made several direct and indirect references to prejudicial details in the Amtrak reservation form, which had caused Amtrak officials to focus on Small and his companion, including the payment in cash for his ticket, the payment of an extra $163 for the sleeper car, the late timing of the reservation, and the last-minute purchase of the tickets, although the form was never introduced into evidence. Small also points to the prosecutor's statement that Small and his companion were unemployed and that when the telephone number on the Amtrak form was dialed, the name given on the answering machine message did not match the reservation form. Likewise, Small points to the prosecutor's reference to Small's "confessional" statement to his companion to the effect that the government would keep seized money because it was "drug related."

The government concedes that no evidence was introduced at trial to support these statements. Consequently, the court must determine, as in Gaither, whether the prosecutor's errors in opening and closing arguments, by referring to matters that were never introduced into evidence at trial, denied Small a fair trial by causing undue prejudice or by preventing the jury from properly assessing the evidence. See Frazier v. Cupp, 394 U.S. 731, 735-36, 89 S.Ct. 1420, 1422-23, 22 L.Ed.2d 684 (1969). For those improper prosecutorial statements to which Small objected, we review for substantial prejudice. Perholtz, 842 F.2d at 361. Because Small did not object to the prosecutor's reference to his "confessional" statement to his companion, however, we review only for plain error, FED.R.CRIM.P. 52(b), namely error such that it " ' "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." ' " United States v. Olano, 507 U.S. 725, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))).

The prosecutor began her opening statement by telling the jury "you will hear that Amtrak and the Metropolitan Police Department are well aware that people who transport illegal narcotics--." Small's counsel objected, and explained at a bench conference that counsel intended to object to all references to why the police became suspicious of Small as irrelevant or inadmissible evidence. The district court, in the first of several advisory cautions to the prosecutor, reminded the prosecutor that opening statement is limited to "appropriate factual matters." After learning that the prosecutor intended to discuss why Small and his companion became suspected couriers, the court pointed out that probable cause was not at issue and that the prosecutor should stay away from matters relating to probable cause. The court instructed the prosecutor: "No, stay away from that. I'm perfectly willing to instruct that, that their presence in the car was appropriate and legal, and that they had the right to inquire of the people in there so they won't say that the police did something wrong." Further, "I have no problem with you showing they were on the train, the train originated in New York, and your officer said at the suppression hearing and can say here that the printout showed that it originated in New York." When the prosecutor indicated that she intended to introduce evidence about the reservation form that Cook reviewed, the court responded, "That's on the printout. That's what I just said." But, when the prosecutor persisted that information about New York City being a source city was also relevant, the court disagreed and again told the prosecutor, "Don't get into that. Just...