U.S. v. Spriggs

• Decision Date: 18 June 1993
• Docket Number: No. 92-3016,92-3016
• Citation: 996 F.2d 320,302 U.S. App. D.C. 54
• Parties: , 37 Fed. R. Evid. Serv. 279 UNITED STATES of America, v. Terrance Kevin SPRIGGS, a/k/a Bob, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 320

996 F.2d 320

302 U.S.App.D.C. 54, 37 Fed. R. Evid. Serv. 279

UNITED STATES of America, v. Terrance Kevin SPRIGGS, a/k/a Bob, Appellant.

No. 92-3016.

United States Court of Appeals District of Columbia Circuit.

Argued March 11, 1993.

Decided June 18, 1993.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 91cr00278-01).

Allen E. Burns, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, were on the brief for appellant.

Stephen P. Anthony, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black, and Eileen C. Mayer, Asst. U.S. Attys., were on the brief for appellee.

Before RUTH BADER GINSBURG, SILBERMAN, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

In November 1991, Terrance Kevin Spriggs was convicted of four counts of distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and of one count of conspiracy to distribute a kilogram or more of heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(i). Spriggs appeals his conviction on the grounds that the trial judge improperly admitted various evidence and gave a faulty charge to the jury. He also argues that the district court lacked sufficient probative evidence upon which to enhance his base offense level. For the reasons given below, none of these contentions is persuasive.

I. BACKGROUND

At trial the Government presented evidence that the appellant was engaged in a three-year conspiracy to distribute heroin by the ounce. Randolph Campbell, a co-conspirator who cooperated with the Government in an effort to reduce his sentence, testified that between April 1988 and July 1990 he and the appellant sold "about eight ounces" of heroin each week.

The evidence against the appellant established that in July 1990 he sold 1.617 grams of 10 percent pure heroin to an undercover law enforcement officer. In an unrelated incident that same month, Campbell was also arrested on drug charges. Campbell then agreed to cooperate with the Drug Enforcement Agency in setting up undercover drug transactions with the appellant.

On three occasions between December 1990 and March 1991, the appellant sold heroin to an undercover DEA agent. In an effort to determine the appellant's source of drugs, DEA agents secured search warrants (in April 1991) for two apartments that the appellant was known to frequent. One was in North East Washington, D.C. and the other in Lanham, Maryland. At the latter location, DEA agents found and seized the appellant and 30 grams of 67% pure heroin, $1,789 in cash, and various drug paraphernalia. At the D.C. apartment DEA agents found $544 in cash, a tax form with appellant's name on it, and a quantity of small plastic bags, some of which contained heroin residue.

II. ANALYSIS

The appellant challenges his conviction on five grounds: (1) that the DEA agents failed to knock and announce properly before entering the apartment in which they found him; (2) that the prosecutor improperly "bolstered" Campbell's testimony by introducing evidence of Campbell's plea agreement; (3) that the trial judge improperly admitted certain expert testimony; (4) that the judge should have charged the jury specially on weighing the testimony of an addict informer; and (5) that the judge improperly charged the jury on the reasonable doubt standard. In addition, the appellant contends that the district court had insufficient evidence to enhance his base offense level.

A. Knock and announce

At a suppression hearing prior to trial DEA special agent Mark Connell described the search of the Maryland apartment. According to Connell the agents arrived at the apartment between 7:30 and 7:45 on a weekday morning. Special agent Ron Kahn knocked once on the door and announced "Police, search warrant." Connell testified that Kahn's announcement "wasn't a holler, but ... it was slightly above a normal tone of voice," and that it was "louder than [a] normal voice ... but not a yell." He conceded that it was "possible" that Kahn's voice would not have reached a far bedroom. After waiting approximately 15 seconds after the knock and announcement without having received any response, the agents forced open the door. Inside they found and arrested the appellant as he and his wife came out of a bedroom 25 to 35 feet from the door.

Under 18 U.S.C. § 3109, a law enforcement officer may forcibly enter a house in order to execute a search warrant only "if, after notice of his authority and purpose, he is refused admittance." As this court has observed, "the phrase 'refused admittance' is not restricted to an affirmative refusal, but encompasses circumstances that constitute constructive or reasonably inferred refusal." United States v. Bonner, 874 F.2d 822, 824 (D.C.Cir.1989) (citation omitted). "The time that section 3109 requires officers to wait before they may construe no response as a denial of admittance depends largely on factual determinations made by the trial court." United States v. Davis, 617 F.2d 677, 695 (D.C.Cir.1979).

The appellant initially contends that the DEA agents violated § 3109 because the occupants of the apartment were unlikely to have heard "a single knock and a modulated announcement" made in the "early morning." The appellant further contends that the DEA agents did not wait long enough after announcing themselves before forcing open the door of the apartment.

In our view the district court had a substantial basis to conclude that the knock and announcement were proper and the delay before entry reasonable. Clearly the agents did not act unreasonably in entering the apartment after knocking and announcing themselves only a single time. See Davis, 617 F.2d at 695 (upholding entry after single announcement). One need seek admittance only once in order to be refused. Credible testimony also shows that the announcement was reasonably audible--"slightly above a normal tone of voice"--and thus apparently sufficient to alert the residents of the apartment. See United States v. Leichtnam, 948 F.2d 370, 372 (7th Cir.1991) (upholding search after police announced themselves in "a voice slightly louder than might be used in conversation"). Finally, as to the time of day, it is hardly unreasonable to assume that someone will be awake and responsive by 7:45 a.m. on a weekday.

With respect to the delay before entering, under our case law the agents were justified in concluding that they had been constructively refused admittance when the occupants failed to respond within 15 seconds of their announcement. In Davis, we upheld a district court determination that officers could reasonably infer refusal after a delay of 15 seconds. 617 F.2d at 695. In Bonner, we held that even a delay of 11 or 12 seconds before entry was proper where the officers heard suspicious noises inside the house, and noted that in the absence of noises only "a few additional seconds' delay clearly would have supported the conclusion that the officers had been refused admittance." 874 F.2d at 826. In this case the officers did wait a few seconds longer than had the police in Bonner.

United States v. Rodriguez, 663 F.Supp. 585, 587-88 (D.D.C.1987) and Griffin v. United States, 618 A.2d 114 (D.C.App.1992), upon which the appellant relies, are clearly not applicable here. The delay in Rodriguez was only three to five seconds. 663 F.Supp. at 585. In Griffin the delay was fully 30 seconds, but the court found that insufficient only because the knock and announcement occurred at 1:30 in the morning, when it was not reasonable to assume that the occupants were awake and able to respond promptly. Cf. Griffin, 618 A.2d at 127 (Terry, J., dissenting) (agreeing that "very late hour" made Griffin "a close case"). Accordingly, the trial judge in the present case did not err in finding that the DEA agents had fulfilled the knock and announcement requirement of § 3109.

B. Bolstering

During Campbell's direct testimony, the prosecution inquired at some length about the witness's drug problems and his cooperation with the Government. Campbell acknowledged that he had twice been convicted of possession with intent to distribute heroin, that he faced a potentially long prison term for each offense, and that his sentencing had been postponed until after he testified in this case. In response to the prosecutor's questions, Campbell also testified that he had entered into a cooperation agreement with the Government by the terms of which he could be prosecuted for perjury if he lied, and that pursuant to that agreement he had testified against the appellant before the grand jury that indicted him. Finally, Campbell acknowledged that he hoped his cooperation in this case would earn him a lighter sentence. The appellant's trial counsel made no objection to any of this testimony, so that reversal is not indicated unless it was plain error for the district court to have admitted the testimony. See United States v. Thomas, 896 F.2d 589, 591 (D.C.Cir.1990).

The appellant argues first that Campbell's testimony should not have been admitted because it unfairly "bolstered" his credibility, which had not been attacked, in violation of Federal Rule of Evidence 608(a)(2). See 1 MCCORMICK, EVIDENCE § 47, at 172 (4th ed. 1992). Specifically, he relies upon the Second Circuit rule that although the Government may risk impeaching its own witness by introducing on direct examination evidence of his having agreed to cooperate, it may not introduce aspects of the cooperation agreement that could bolster the witness's credibility unless or until the defense attacks his or her credibility. See United States v. Edwards, 631 F.2d 1049, 1051-52 (2d Cir.1980). See also United States v. Borello, 766 F.2d 46, 56-58 (2d Cir.1985) (reversible error for trial court to have admitted full...