U.S. v. Smith, 09–3119.
| Decision Date | 15 April 2011 |
| Docket Number | No. 09–3119.,09–3119. |
| Citation | 85 Fed. R. Evid. Serv. 154,640 F.3d 358,395 U.S.App.D.C. 95 |
| Parties | UNITED STATES of America, Appelleev.John SMITH, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia (No. 1:07–cr–00153).Mariel Goetz argued the cause for appellant. With her on the briefs were Peter M. Brody, appointed by the court, Stephen L. Braga, and Michael S. Casey.Patricia A. Heffernan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and John K. Han, Assistant U.S. Attorneys.Before: SENTELLE, Chief Judge, and GINSBURG and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge KAVANAUGH.KAVANAUGH, Circuit Judge:
Based on evidence of John Smith's drug dealing, federal agents obtained a search warrant for Smith's home. There, they found Smith along with heroin worth about $30,000, two loaded guns, and $27,730 in cash. The agents arrested Smith, and a jury later convicted him of four drug and firearm offenses. The District Court sentenced Smith to 25 years in prison, the mandatory minimum sentence given his offenses and criminal record.
On appeal, Smith contends that several errors occurred in the course of the trial and sentencing proceedings. First, at trial, the Government proved Smith's prior felony conviction—which was relevant to the charge of being a felon in possession of a firearm—through letters from a state court clerk, rather than through a certified record or in-court testimony. According to Smith, the clerk's letters were testimonial, yet the clerk was not subject to cross-examination. Smith says that admission of the clerk's letters therefore violated the Sixth Amendment's Confrontation Clause. Second, an FBI agent testified as a lay witness about the meaning of slang used by Smith and his co-conspirators in some recorded conversations. Smith claims that the agent's testimony about the slang had to satisfy the requirements for expert testimony and thus was improperly admitted as lay testimony. Third, the FBI agent testified at the start of trial that Smith and a co-conspirator were “working together putting their money together and going to New York to buy heroin.” Smith contends that the agent's overview testimony was based on inadmissible hearsay and thus improper. Fourth, at trial, a police officer testified that he had once pulled over Smith at a traffic stop and found a gun in Smith's car, as well as “two large bundles” near the gun. Smith objected to the reference to “bundles,” and the District Court sustained Smith's objection and told the jury that Smith says the judge should have instructed the jury to disregard the reference to the bundles. Fifth, at sentencing, the judge found that Smith had a prior drug conviction and relied on that prior conviction to double Smith's mandatory minimum sentence for the conspiracy charge from 10 to 20 years. Smith argues that the judge's finding violated Smith's Sixth Amendment right to have a jury find that fact.
Based on recent Supreme Court decisions, we agree with Smith's Confrontation Clause challenge to admission of the clerk's letters. We thus vacate the judgment of conviction on the felon-in-possession count, which depended on that evidence. That error does not affect the other three counts of conviction, however. We also agree with Smith's claim that the FBI agent's interpretation of slang was admissible only as expert testimony; however, that error was harmless. The witness would have qualified as an expert and offered the same testimony. We disagree with Smith's other three arguments. The FBI agent's objected-to testimony at the beginning of the trial was not based on hearsay and thus was not improper. The District Court sufficiently instructed the jury to disregard the police officer's reference to “bundles” in Smith's car. And the judge's finding about Smith's prior drug conviction did not violate the Sixth Amendment.
We therefore affirm in part, vacate in part, and remand. The vacatur and remand of the felon-in-possession count does not affect Smith's term of imprisonment: Smith's sentence for the felon-in-possession count runs concurrently with the mandatory minimum sentence of 25 years for the counts of conviction that are affirmed.
Sometime in February 2007, John Smith answered his phone to hear Lonnell Glover's familiar voice. They discussed their heroin supplier in New York—“Twin”—and Smith's plan to buy heroin from Twin later in the month. They did not know that FBI Special Agent John Bevington was investigating their drug distribution ring and employing court-approved electronic surveillance to listen to Glover's phone conversations. Agent Bevington could hear every word they said.
Over the next few months, Smith and Glover talked frequently. Sometimes they discussed how much heroin they would buy from Twin. Other times, Smith passed on messages from Twin. On occasion, Smith told Glover where he expected to sell heroin. When Glover needed directions to a meeting with Twin, Smith provided them. When a guest in Smith's home saw police officers outside and flushed Smith's heroin down the toilet, Smith colorfully vented his frustration to Glover about seeing his profits literally go down the drain.
The two drug dealers apparently worked together well until June 19, 2007. On that day, the FBI simultaneously executed 17 search warrants and made about 20 arrests during a take-down of Smith and Glover's heroin distribution ring. Smith was alone in his home at 6:00 a.m. when agents came in, searched his house, and arrested him. In Smith's bedroom, the FBI found 316 grams of heroin valued at more than $30,000, two loaded guns, and $27,730 in cash.
Smith was later indicted for being a felon in possession of a firearm; conspiring to possess and distribute heroin; possessing heroin with intent to distribute it; and possessing a gun during a drug offense. See 18 U.S.C. § 922(g)(1) (felon in possession); 21 U.S.C. § 846 (conspiracy); 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i) (); 18 U.S.C. § 924(c)(1)(A) ().
At trial, the Government introduced redacted versions of two letters to help prove the charge of being a felon in possession of a firearm. At the request of the Department of Justice, a clerk in the Supreme Court of New York, Queens County, had created the documents shortly before trial. Each letter stated that John Smith had been convicted of a felony. The District Court admitted the letters into evidence over Smith's Confrontation Clause objection.
FBI Agent Bevington testified as a lay witness at the trial. Agent Bevington said he had listened to thousands of Glover's recorded conversations, many of which involved Smith. Based on his experience investigating drug crimes, Agent Bevington told the jury the meaning of several terms in the recorded conversations, such as “key” (kilogram), “hardball” (100 grams of heroin), and “dope” (heroin). Smith objected before trial to the agent's interpretation testimony, and argued that Bevington could offer such testimony only if qualified as an expert witness. The District Court ruled otherwise.
During his testimony, Agent Bevington also stated over Smith's objection that “Mr. Smith and Mr. Glover were working together putting their money together and going to New York to buy heroin.” Smith contended this was improper overview testimony; the District Court disagreed.
Later in the trial, the jury heard testimony from Joseph Bellino, a former police officer with the United States Park Police. He described a traffic stop in 2004 in which he searched Smith's car and found a gun and “two large bundles” near the gun. Smith immediately objected to the reference to “bundles.” The District Court sustained the objection and told the jury,
The jury found Smith guilty on all four counts. For the conspiracy charge, the court imposed the mandatory minimum sentence of 20 years in prison. The mandatory for that offense would have been 10 years, but a judicial finding that Smith had previously been convicted of a drug felony increased it to 20 years. The District Court then imposed two sentences to be served concurrently with that 20–year sentence: a 10–year sentence for unlawful possession with intent to distribute more than 100 grams of heroin, and a 10–year sentence for being a felon in possession of a firearm. Finally, the District Court imposed a 5–year mandatory minimum sentence—which the law required to be served consecutively—for using, carrying, or possessing a firearm during and in relation to a drug trafficking offense. See 21 U.S.C. § 846 (conspiracy); 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i) (); 18 U.S.C. § 922(g)(1) (felon in possession); 18 U.S.C. § 924(c)(1)(A) (). In all, therefore, Smith was sentenced to 25 years in prison.
Smith raises a Confrontation Clause challenge to his conviction for being a felon in possession of a firearm.
To prove the felon-in-possession charge, the Government was required to prove that Smith had a prior felony conviction. The Government did so by producing letters from a court clerk in the Supreme Court of New York, Queens County. The letters stated that “it appears from an examination of the records on file in this office” that Smith had been convicted of a felony. Each letter had a seal and a signature by a court clerk. The court clerk did not testify at Smith's trial, however.
On appeal, Smith renews his trial objection that admission of the clerk's letters into evidence—without an...
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