U.S. v. Smart

• Decision Date: 15 January 1997
• Docket Number: No. 95-3056,95-3056
• Citation: 98 F.3d 1379,321 U.S. App. D.C. 216
• Parties: , 45 Fed. R. Evid. Serv. 265 UNITED STATES of America, Appellee, v. Antonio M. SMART, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1379

98 F.3d 1379

321 U.S.App.D.C. 216, 45 Fed. R. Evid. Serv. 265

UNITED STATES of America, Appellee, v. Antonio M. SMART, Appellant.

No. 95-3056.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 25, 1996.

Decided Nov. 1, 1996.

Rehearing Denied Jan. 15, 1997.

Appeal from the United States District Court for the District of Columbia (No. 94cr00390-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause, for appellant. A.J. Kramer, Federal Public Defender, and Valencia R. Rainey, Assistant Federal Public Defender, Little Rock, AR, were on the briefs.

Steven E. Rindner, Assistant United States Attorney, argued the cause, for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, Washington, DC, were on the brief.

Before: EDWARDS, Chief Judge, WALD, Circuit Judge and BUCKLEY, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In 1995, appellant Antonio M. Smart was convicted by a jury on four different counts of violating federal law: (1) possession with intent to distribute five grams or more of crack cocaine (21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(iii)); (2) using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); (3) carrying a pistol without a license in violation of D.C.Code § 22-3204(a); and (4) possession of an unregistered firearm (D.C.CODE § 6-2311(a)). On appeal, Smart challenges the validity of these convictions on three grounds. First, he claims that the police stop-and-frisk to which he was subjected in conjunction with his arrest was unsupported by reasonable and articulable suspicion, and therefore the district court erred by denying his motion to suppress the evidence gleaned from this search. Second, he argues that the trial court allowed the government's drug expert to answer a hypothetical question in violation of Federal Rule of Evidence 704(b). Third, appellant contends that his conviction for using or carrying a gun under 18 U.S.C. § 924(c) should be reversed due to an erroneous jury instruction. Appellant also challenges the sentence imposed on the grounds that the district court failed to recognize its authority to depart downward in his sentence under federal sentencing guidelines and policies.

Although we find that the expert witness' answer to a hypothetical question posed by the prosecution constituted improper expert testimony in violation of Rule 704(b), we also conclude that this error was harmless. In light of the overwhelming amount of properly admitted evidence indicating that Smart possessed a large quantity of crack cocaine with the requisite intent to distribute that cocaine and the virtual absence of any exculpatory evidence, it is not plausible that the district court's error under Rule 704(b) had a "substantial influence" on the jury. Similarly, we find that, although the district court's instruction to the jury on the meaning of "use" under 18 U.S.C. § 924(c) was clearly erroneous, this error was not prejudicial. Smart's other claims are without merit. Accordingly, we affirm all four convictions and reject appellant's challenge to his sentence.

I. BACKGROUND

A. Factual Scenario

On September 21, 1994, Officer Michael Tuz ("Officer Tuz") of the Metropolitan Police Department set up an observation post on the ground behind a small tree outside of the building located at 1503 Howard Road, S.E., Washington, D.C. At 9:30 p.m. on that day, Officer Tuz looked through his binoculars and observed appellant Antonio Smart walk over to a grassy strip near some trees and a building, where Smart reached down and picked up a plastic bag from the ground alongside the building. The plastic bag contained a "chunk of white--a white substance." Although Officer Tuz was approximately 30 feet away from appellant, the binoculars made it appear as though appellant were right next to him.

After picking up the plastic bag, appellant walked around the building and into a nearby parking lot, where he was out of Officer Tuz's line of sight. Officer Tuz radioed to a nearby arrest team that the suspect was a black man, wearing a black jacket, black shirt, and a black pair of pants and would be in the first parking lot near the street. Twenty-five to thirty seconds later, Officer Chris Huxoll ("Officer Huxoll") spotted appellant standing "midway" in the parking lot. Although there were a few other people standing further "back in the parking lot," Officer Huxoll did not notice them until after arresting appellant. According to the prosecution, appellant was the only person in the parking lot who matched Officer Tuz's radioed description.

Officer Huxoll drove up to appellant in an unmarked patrol car, identified himself as a police officer and asked appellant to put up his hands. Officer Huxoll then walked appellant over to the police car. Before Officer Huxoll could pat him down, appellant put his hands on his waistband. Officer Huxoll again asked him to put up his hands. Although appellant complied with this request at first, he immediately put his hands back on his waistband. While appellant's hand rested on his waistband, Officer Huxoll placed his hand on top of appellant's hand. Officer Huxoll felt a hard object and knew it was a gun.

A scuffle ensued, and two other officers assisted in securing appellant. The officers recovered a loaded 9-millimeter semiautomatic handgun from appellant. At this time, appellant told the officers that he carried the gun for protection because he had been shot recently. To prove his claim, he showed the officers his wound. In addition, the officers searched appellant and found a bag containing 25.55 grams of crack cocaine and 56 small ziplock bags in the pockets of his coat, ¹ a pager, and $580 in small denomination bills. Officer Tuz, having left his original observation post, went around the back of the buildings to the parking lot and identified appellant as the individual who had retrieved a plastic bag with a white substance from the ground.

The defense called to the witness stand Theodore Clash ("Clash"), a self-employed mechanic with a criminal record for possession with intent to distribute PCP. Clash, an acquaintance of Smart, testified that on the night in question, Clash saw appellant walking across a playground on the sidewalk toward his car. He said he never saw appellant go towards any trees near the playground, as Officer Tuz had testified. Clash said that Smart approached him and asked him to get transmission fluid for Smart's car. Clash went to his apartment to check for the transmission fluid. When he returned to the parking lot, the police were searching Smart. Clash stated that, at that time, Clash was wearing a blue sweater, jeans and tennis shoes and that the police also stopped Clash, searched him and then let him go.

Appellant testified that, as he was driving home with his friend Richard after buying some cassette tapes, his station wagon was making a ticking noise, so he pulled into a parking lot near Richard's house. Richard got out and went into his house. Smart also went into the house and claimed to have gotten transmission fluid. After that, Smart claimed that he went into the house of a friend who lived next door to retrieve Smart's Polo sweater, but could not find his sweater, so he went back next door to Richard's house to get a jacket. He went into the bedroom where Richard was, asked for a jacket, was told to grab the one by the door, and did so, zipping it up and walking back out past the playground along the sidewalk in between his car and another car and put the transmission fluid in the car. Appellant noted that there were other people in the parking lot. The only time he talked to Clash, he said, was when he was putting the one bottle of transmission fluid in the car and yelled to Clash to get another bottle of fluid upstairs.

Smart claims that he was fiddling around with the transmission cap on his engine, when a couple of unmarked police cars drove into the parking lot. The officers grabbed two other persons who were standing outside. An officer in a white Chevrolet pulled up to Smart, got out of the car, and grabbed him. The officer started frisking appellant and stopped upon feeling a pager. Smart claims that the police officer, who hadn't identified himself as such, began to choke Smart. Other officers then came over to assist. Appellant testified that he did not have a gun on his person and that he did not see narcotics removed from his jacket. Smart also denied telling the police that he carried the gun for protection.

B. Procedural History

On October 6, 1994, a grand jury indicted appellant for (1) possession with intent to distribute five grams or more of crack cocaine (21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(iii)); (2) using and carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)); (3) carrying a pistol without a license (D.C.CODE § 22-3204(a)); (4) possession of an unregistered firearm (D.C.CODE § 6-2311(a)); (5) possession of unregistered ammunition (D.C.CODE § 6-2361(3)).

On February 1, 1995, the district court held an evidentiary hearing on appellant's motion to suppress. The trial judge denied Smart's motion. On February 3, 1995, a jury found Smart guilty on all counts except Count 5, possession of unregistered ammunition. The trial judge dismissed Count 5 at the close of all evidence. On May 12, 1995, Smart was sentenced to (1) 121 months of incarceration to be followed by four years of supervised probation and a $50 special assessment on Count 1; (2) a consecutive term of 60 months of incarceration and a $50 special assessment on Count 2; (3) a concurrent term of one year of incarceration on Count 3; and (4) a concurrent term of one year of incarceration on Count 4. Appellant filed a timely notice of appeal on ...