U.S. v. Stewart, No. 95-3163

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: ROGERS; For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, m
• Citation: 323 U.S.App.D.C. 29,104 F.3d 1377
• Parties: , 46 Fed. R. Evid. Serv. 300 UNITED STATES of America, Appellee, v. Gary STEWART, Appellant.
• Docket Number: No. 95-3163
• Decision Date: 10 February 1997

Page 1377

104 F.3d 1377 323 U.S.App.D.C. 29, 46 Fed. R. Evid. Serv. 300 UNITED STATES of America, Appellee,
v.
Gary STEWART, Appellant. No. 95-3163. United States Court of Appeals,
District of Columbia Circuit. Argued Nov. 12, 1996.
Decided Jan. 21, 1997.
As Amended Feb. 10, 1997.

Page 1379

[323 U.S.App.D.C. 31] Appeal from the United States District Court for the District of Columbia (No. 91cr00338-04).

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

John Crabb, Jr., Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr. and Edward G. Burley, Assistant U.S. Attorneys, were on the brief.

Before: GINSBURG, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellant Gary Stewart ¹ makes five challenges to his convictions by a jury of conspiracy to distribute, and distribution of, 50 grams or more of cocaine base, and failure to appear while on release pursuant to the Bail Reform Act. He contends, first, that there was insufficient evidence to show his involvement in more than a single sale of drugs and that he was prejudiced by the variance between the evidence of his involvement in a one-day conspiracy and the evidence concerning

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[323 U.S.App.D.C. 32] a larger conspiracy. Second, he contends that the district court erred in admitting the drugs he sold into evidence because the government failed to meet its burden of proof on the chain of custody, and that the district court abused its discretion by curtailing cross examination of a government expert on the chain of custody, denying appellant his right to present a defense. Third, he contends that his Bail Reform Act conviction must be reversed because the committing judge acted without authority and, alternatively, there was insufficient evidence to show that he willfully failed to appear. His last two contentions are that the district court's failure to strike testimony by an undercover officer who stated that he recognized appellant from a "prior investigation" was prejudicial, and that he is entitled to be resentenced because the district court failed to recognize that it had discretion to depart downward in view of appellant's status as an alien.

We hold that there was sufficient evidence to link appellant to the larger conspiracy, and that therefore any variance of proof was not prejudicial. We also hold that because a twelve day delay between the placement of the drugs in a police vault and their retrieval at a testing laboratory does not in itself constitute a break in the chain of custody, the district court did not err in allowing the drugs into evidence. In the absence of a proffer of what counsel expected to establish from the testimony of the government's expert on police procedures concerning the handling of the drugs in the instant case, we find no abuse of discretion by the district court in curtailing further cross examination on this subject. We hold, further, that an Article I judge of the Superior Court of the District of Columbia has authority under the Bail Reform Act to set conditions of release for a defendant facing federal criminal charges, that appellant was released under the Act, and that there was sufficient evidence for the jury to have found that his violation of the terms of his release was willful. Finally, we conclude that appellant's contentions of prejudice as a result of testimony about a "prior investigation" and the district court's purported failure to recognize its discretion to depart downward because of appellant's alien status are meritless. Accordingly, we affirm the judgment of conviction.

I.

Viewed most favorably to the government, United States v. Graham, 83 F.3d 1466, 1470 (D.C.Cir.1996), the evidence showed that on six occasions Maurice Stewart, Richard Shorter, and Damon Edwards, ("the co-conspirators") sold crack cocaine in small amounts to undercover police officers of the Metropolitan Police Department ("MPD"). Most of the six transactions took place in a parking area behind 1803 4th Street, N.W. During those transactions as well as in the course of arranging a seventh and final sale, the co-conspirators mentioned a "big man," stating that they needed to talk to him about proposed sales of larger amounts of drugs.

The seventh sale occurred when, after arranging the terms of a purchase of 250 grams of crack in exchange for $7,000 and several firearms, Maurice Stewart and Shorter brought the undercover officers to a building at 1620 15th Street, N.W. They agreed that the officers would turn over $5,000 and the guns to the co-conspirators, and Maurice Stewart and Shorter would keep the guns and pay an additional $2,000 to their supplier. When they arrived, Shorter approached appellant, who was seated on the porch of the building. Appellant told Shorter that he wanted to count the money, but the undercover officer refused because he had not brought the agreed upon amount. When the officer began to walk away, pretending to end the deal, Shorter lied to appellant, telling him that the money had already been counted. Appellant then went inside and reemerged with a grocery bag containing an oatmeal canister filled with 219.67 grams of cocaine base.

Maurice Stewart and Shorter returned with the officers to 1803 4th Street, N.W. As Maurice Stewart was about to take possession of the guns, an arrest team moved in. The two undercover officers accompanied by other officers then returned to 1620 15th Street, where they arrested appellant. No

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[323 U.S.App.D.C. 33] money was found on appellant at the time of arrest.

Appellant and his co-conspirators were charged with two counts of conspiracy--to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 846, and to possess an unregistered firearm during a narcotics trafficking offense in violation of 18 U.S.C. § 371--and one count of unlawful distribution of 50 grams or more of cocaine base on May 10, 1991, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). Only appellant went to trial, on a superseding indictment, adding a charge of failure to appear under the Bail Reform Act, 18 U.S.C. § 3146, and dropping the gun conspiracy charge; his co-conspirators entered guilty pleas. The jury found appellant guilty on all counts. The district court, after denying appellant's motion for judgment as a matter of law or, alternatively, for a new trial, also denied his request for a downward departure in his sentence based on his status as an alien. ²

II.

Appellant challenges his convictions for conspiracy on the ground that no reasonable jury could have found that he was involved in more than a single buyer-seller transaction. Attempting to distinguish other cases on their facts, appellant maintains that absent direct, as opposed to circumstantial, evidence of his involvement in prior transactions of the charged conspiracy, the government failed to meet its burden of proof. He further contends that he was prejudiced by the variance between the direct proof of his involvement in a one day conspiracy and the evidence at trial of a larger conspiracy involving his co-conspirators.

The government may meet its burden of proof by circumstantial as well as direct evidence, United States v. Treadwell, 760 F.2d 327, 333 (D.C.Cir.1985), and we conclude that it has done so, even if, as the district court observed, the evidence was "thin." Evidence of an ongoing criminal relationship between a defendant and his co-conspirators, combined with a conspiracy that is limited in scope and takes place over a limited period of time, as with involvement by a defendant in the final or largest sale following a small number of related transactions, may provide a jury with a reasonable basis to find that the final transaction was more than a mere buyer-seller exchange, and that the defendant was aware that the conspiracy entailed more than just one discrete sale. United States v. Miranda-Ortiz, 926 F.2d 172, 175-76 (2d Cir.), cert. denied, 502 U.S. 928, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991). See also United States v. Murray, 618 F.2d 892, 903 (2d Cir.1980); United States v. DeNoia, 451 F.2d 979, 981 (2d Cir.1971) (per curiam).

Although the evidence showed that appellant was not personally present when the first six sales of small amounts of crack occurred, the co-conspirators repeatedly referred to the need to get instruction about larger sales from someone else in their criminal enterprise. The prosecutor did state in closing argument to the jury that the person consulted was "unlikely" to be appellant, given the testimony of a government expert that a supplier would probably not personally be present when so large an amount of drugs was being sold. But nothing required the jury to accept the expert's testimony or the prosecutor's opinion. Even if the jury adopted the prosecutor's view of the evidence and did not believe that appellant had orchestrated a series of transactions, the jury could still reasonably find that appellant was linked to the greater conspiracy.

First, the evidence showed that appellant agreed to supply crack to the co-conspirators and that he assisted them in its distribution. Unlike United States v. Morris, 836 F.2d 1371 (D.C.Cir.1988), in which the defendant sold only small quantities of drugs, here appellant sold over 200 grams of crack cocaine for $9,000. The jury thus reasonably could find that he was aware that the drugs he was

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[323 U.S.App.D.C. 34] selling would be distributed. ³

Second, the evidence suggested that there was a prior relationship between appellant and his co-conspirators. The evidence showed that appellant engaged in ongoing communication with the co-conspirators for purposes of arranging the seventh, and...