U.S. v. Spinner
| Decision Date | 21 September 1998 |
| Docket Number | No. 97-3061,97-3061 |
| Citation | 332 U.S. App. D.C. 1,152 F.3d 950 |
| Parties | UNITED STATES of America, Appellee, v. Richard Paul SPINNER, III, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant. Sandra G. Roland, Assistant Federal Public Defender, entered an appearance.
Michael Fitzpatrick, Assistant U.S. Attorney, argued the cause for appellee, with whom Wilma A. Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown and Matthew L. Levine, Assistant U.S. Attorneys, were on the brief.
Before: EDWARDS, Chief Judge, SENTELLE and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Appellant Richard Spinner challenges his conviction on four weapons and narcotics charges. We agree with Spinner that the government introduced insufficient evidence to sustain his conviction for possession of a semiautomatic assault weapon, and accordingly reverse that conviction. And because the district court permitted the prosecutor to ask a defense witness a series of inappropriate questions on cross-examination, we reverse and remand Spinner's conviction for possession with intent to distribute crack cocaine within 1,000 feet of a school. We affirm the remaining convictions.
On August 8, 1996, at approximately 4:00 p.m., Washington Metropolitan Police Department officers and FBI agents executed a search warrant at 636 46th Place, S.E., in the District of Columbia. Four people were present at the time: Richard Spinner, his mother, his 16-year-old sister, and his 17-year-old cousin.
The officers discovered three loaded guns during the course of their search. Two of them--a .380 caliber Colt semiautomatic pistol and a .45 caliber Sturm-Ruger semiautomatic pistol--were found under the cushions of a couch in the living room. The third gun, a Colt .223 caliber semiautomatic rifle, was found in the closet of a second-floor bedroom, inside a rifle case. During their search of that closet, the officers also recovered several .223 caliber magazines of ammunition, a bulletproof vest, and two ski masks. In addition, the officers found 1.279 grams of crack cocaine, packaged in multiple ziplock bags, in the living room and second-floor bedroom.
The officers recovered documents relating to Spinner from the upstairs bedroom, including correspondence addressed to him; receipts bearing his name; his social security card; and a list--handwritten on an envelope bearing Spinner's fingerprint--of current prices for various quantities of crack cocaine. Spinner's fingerprints were also found on two other noteworthy items: a .45 caliber bullet, which was inside the .45 caliber pistol; and a box of .44 caliber bullets found in the closet where the semiautomatic rifle was recovered. The officers also found two photographs that depicted Spinner in the upstairs bedroom.
As a result of the officers' search, a federal grand jury returned a five-count criminal indictment against Spinner. The indictment charged Spinner with two counts of violating 18 U.S.C. § 922(g)(1), which makes it illegal for a convicted felon to possess "any firearm or ammunition." (Spinner had a 1993 felony conviction for possession of a firearm with a removed, obliterated, or altered serial number in violation of 18 U.S.C. § 922(k).) The indictment also charged Spinner with possession of a semiautomatic assault weapon, 18 U.S.C. § 922(v)(1); possession with intent to distribute cocaine base within 1,000 feet of a school, 21 U.S.C. § 860(a); and possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). No charges were brought against Spinner's sister or his mother. However, Spinner's cousin was prosecuted in a separate proceeding in juvenile court.
The government sought to prove that Spinner constructively possessed the recovered contraband. It argued that Spinner had access to the upstairs bedroom, and the ability to control the contraband that was found there. In support of this position, it introduced into evidence Spinner's personal papers that were found in the bedroom, as well as the photographs depicting Spinner in the bedroom. To prove that Spinner possessed the contraband intentionally, the government stressed the presence of Spinner's fingerprints on the .45 caliber bullet, the box of .44 caliber ammunition, and the drug price list. It also introduced evidence of Spinner's "other crimes" pursuant to Federal Rule of Evidence 404(b) in order to show Spinner's intent to possess the contraband. In particular, the jury heard evidence that prior to his arrest Spinner had unlawfully possessed a semiautomatic handgun with an obliterated serial number, and that he had sold 25 ziplock bags of crack to an undercover officer in front of the house at which the search warrant was executed.
To make the case that the weapon recovered from the closet of the upstairs bedroom met the statutory definition of "semiautomatic assault weapon," the government introduced the testimony of Richard A. Turner, a firearms enforcement officer employed by the Bureau of Alcohol, Tobacco and Firearms. The district court permitted Turner to testify as an expert "concerning firearms, ammunition, identification, operation and design."
The statutory term "semiautomatic assault weapon" includes:
a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of--
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and
(v) a grenade launcher.
In response to the prosecutor's questions, Turner described the recovered weapon, which is commonly called an AR-15 rifle, as a "semiautomatic rifle which can accept a detachable magazine...." This testimony more or less tracks the statutory phrase: "a semiautomatic rifle that has an ability to accept a detachable magazine." Next, the prosecutor asked Turner: "And what are the features, just in general, that would turn this [particular] weapon into a semiautomatic assault weapon?" Turner responded:
Well, it has a telescoping shoulder stock. So that's one feature. And then it has a pistol grip that extends beyond the bottom of the receiver. . . . By having these two features, it would put it into the classification of a semiautomatic assault weapon.
(emphasis added). Here, Turner's language diverged from the language of the statute, which refers to a "pistol grip that protrudes conspicuously beneath the action of the weapon." The prosecutor did not ask Turner to explain what he meant by "receiver," nor did she ask him whether that term was equivalent to the statutory term "action." Nor indeed did she ask any follow-up questions about Turner's conclusion. And while the record makes it clear that Turner had the weapon at issue in front of him on the witness stand, it is not apparent whether he pointed to the "bottom of the receiver" as he spoke.
Spinner's theory of the case was that he had not lived at the house for several months prior to his arrest, and that his cousin solely possessed the contraband. Both Spinner's cousin and his sister testified that the cousin had stayed in the upstairs bedroom frequently during the summer when Spinner was arrested. The cousin testified that he had hidden the guns, drugs and ammunition in the house himself, hoping perhaps to sell them in the future.
To establish that Spinner was not living at the house when the arrest took place, the defense called to the stand Spinner's girlfriend, Lolita Little. On direct examination, Ms. Little testified that Spinner had moved in with her in late June 1996, approximately two months before Spinner's arrest. On cross-examination, the prosecutor asked her if "last May" she had been "upset that Richard Spinner was letting his friend use his mother's house to sell drugs." Defense counsel objected. At the bench, the prosecutor explained that her "good faith basis" for asking the question was a letter dated May 13, 1996, that Ms. Little had written Spinner when he was incarcerated for an unrelated crime. In pertinent part, the letter, with expletives deleted, said:
I hope your thoughts be straight and stop those m* * * * *f* * * * *s from using your mother and her home to do this s* * * because you wouldn't do that in their mother's s* * *, they wouldn't do that s* * * to their mothers out of respect.
The prosecutor explained that she intended to rebut the defense's suggestion in its opening statement that Spinner had "changed his life around" prior to "last May" by showing that Spinner had let his friend use his mother's house to sell drugs. She added that the defense is "asking the jury to believe [Spinner] changed his life and I think it's--the government should have the opportunity, first of all, for the jury to know what he was doing before this." She also argued that the challenged question was "entirely relevant to the government's argument that Mr. Spinner knew that [his cousin] was using, was selling drugs out of this premises." The defense objected to the question on the grounds that it was prejudicial, that it exceeded the scope of direct examination, and that it arguably constituted Rule 404(b) evidence for which the government did not provide sufficient notice.
The trial judge said he would permit the prosecutor to pursue this line of questioning because it undermined the credibility of the witness; indeed, he even urged the government to prosecute Ms. Little for perjury because he believed that the letter contradicted her earlier testimony. The judge also said that he would permit the...
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