U.S. v. Thompson

• Decision Date: 15 September 1994
• Docket Number: No. 93-3125,93-3125
• Citation: 27 F.3d 671,307 U.S. App. D.C. 221
• Parties: UNITED STATES of America v. Chevalier THOMPSON, a/k/a Bumpy, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 671

27 F.3d 671

307 U.S.App.D.C. 221

UNITED STATES of America v. Chevalier THOMPSON, a/k/a Bumpy, Appellant.

No. 93-3125.

United States Court of Appeals District of Columbia Circuit.

Argued April 18, 1994.

Decided July 8, 1994.

Rehearing and Suggestion for Rehearing In Banc Denied Sept. 15, 1994.

Appeal from the United States District Court for the District of Columbia (92cr00026-01).

Adam Harris Kurland (appointed by the Court) argued the cause and filed the briefs, for appellant.

Elizabeth Trosman, Asst. U.S. Atty., argued the cause, for appellee. On the brief, for appellee were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Richard L. Chamovitz and Leslie A. Blackmon, Asst. U.S. Attys.

Before: SILBERMAN, WILLIAMS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

After a jury trial, Chevalier Thompson was convicted on one count of distribution of cocaine base and on one count of possession with intent to distribute cocaine base. We find no merit in his one claim of trial error--that the government used an improper "identification procedure" by showing witnesses a photograph of Thompson in the course of its immediate pre-trial preparation. Although we affirm the convictions, we remand for further consideration of his sentence.

I. Alleged Use of an Improper Identification Procedure

On January 3, 1992, undercover police officers Leslie Russell and Donita Giles approached a man, later identified as Thompson, and indicated their interest in buying $20 worth of cocaine base. Thompson took the undercover officers to another person, Anthony Carter, and told Carter to "hold them". Thompson then got into the driver's seat of a burgundy Nissan automobile and reached down for something. When he came back, he produced a black film cannister that contained some Ziploc bags. He handed a bag to Officer Russell in exchange for a pre-recorded $20 bill, and told Russell that if she wanted any more, she should "just come back and ask for Nissan."

To preserve their ability to make undercover buys in the future, the officers did not themselves arrest the two men. Instead, Officer Russell broadcast a lookout for the pair. Minutes later police stopped a group of three men, two of whom matched the descriptions in the lookout. The undercover officers then drove by slowly and Officer Russell identified Carter and Thompson as the men who had been in on the sale. A search revealed that Thompson was carrying the pre-recorded $20 bill and a set of Nissan keys; the keys fit a burgundy Nissan Maxima that was parked a few vehicles away from the scene of the transaction. Twenty-eight Ziplocs containing a total of 7.225 grams of cocaine base were found in the fuse box, located at knee level to the left of the steering column. The police also found, on the sidewalk where the men had been stopped, a black film cannister with 2.71 grams of cocaine base distributed among 13 Ziplocs.

At trial, both Russell and Giles gave in-court identifications of Thompson as the man who had sold Russell the cocaine base. Thompson now argues, however, that a new trial is necessary because these in-court identifications should never have been admitted. On cross-examination, both officers acknowledged that they had seen Thompson's arrest photograph in preparation for their testimony; though Russell was not asked for the surrounding details, Giles testified that the prosecutor had shown her the picture and that she had not seen any other photographs on that occasion. Thompson contends that this constituted an unduly suggestive identification procedure, creating such a risk of misidentification at trial that due process requires the reversal of his convictions. See generally Neil v. Biggers, 409 U.S. 188, 196-201, 93 S.Ct. 375, 380-383, 34 L.Ed.2d 401 (1972).

Though the relevant facts had been elicited in cross-examination of the government's witnesses on the first day of trial, Thompson did not raise this argument in the trial court until after the jury found him guilty, when he filed a motion for a new trial. Thompson nonetheless argues that we should review the issue as if he had raised a timely objection, because the trial court ruled on the issue in the context of the post-verdict motion. For purposes of determining our standard of review of an alleged error in admission of evidence, however, a post-verdict motion for a new trial is not the same as a timely objection: the delay eliminates any chance that the judge could correct the error without a duplicative trial, and according review as if a timely objection had been raised virtually invites strategic behavior by defense counsel. See, e.g., United States v. Saro, 24 F.3d 283, 287 (D.C.Cir.1994). Thus we review only for plain error. See, e.g., United States v. Breque, 964 F.2d 381, 387 n. 7 (5th Cir.1992). In fact, the scope of review makes no difference here, as we do not think that the admission of the in-court identifications was error at all, let alone the "obvious" and "prejudicial" error required under plain-error standards. See generally United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993).

It is quite a stretch to portray what happened during pre-trial preparation as an identification procedure. Russell, in fact, had made a drive-by identification of Thompson minutes after he had been arrested, well before the allegedly suggestive photo display. Under fairly similar circumstances, we have found "nothing improper" in later showing such a witness a photograph to refresh her recollection. See United States v. Marshall, 511 F.2d 1308, 1311 (D.C.Cir.1975). To be sure, this technique may well make the witness seem more confident when she identifies the defendant in court. But the same can be said of every technique used to refresh a witness's recollection during pre-trial preparations.

In any event, Russell's sighting of the photo while preparing for her testimony carried no significant risk of causing any misidentification, and so even if it was improper it would not preclude her in-court identification of Thompson. Cf. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). In one sense, indeed, the photo gave her no information that she would not have acquired as soon as she took the witness stand at trial, for she testified on cross-examination that she knew where criminal defendants sit. More important, the key identification was the drive-by; unless Thompson could shake the validity of that, he could not raise a serious identity issue (unless the Thompson in court was different from the Thompson who was arrested, which he does not claim). And Russell's exposure to Thompson's arrest photo in trial preparation could have had only the most remote effect on the credibility of her testimony about the events leading up to the drive-by.

Officer Giles was not in quite the same position as Officer Russell. While Giles testified that she too had recognized Thompson during the drive-by, she said she did not voice her identification at the time because "[i]t was not [her] purchase". But this difference is immaterial unless her exposure to the photograph would in some way have been more likely to affect the credibility of her account of the drive-by than Russell's exposure would have affected hers. We find no error in the admission of the in-court identifications.

II. Alleged Sentencing Errors

A. Ineffective Assistance of Counsel

Thompson's other challenges all go to the validity of his sentence. Two factors worked strongly against Thompson: his offenses involved crack cocaine, which triggers much harsher punishments than powder cocaine, and he had two prior felony drug convictions. As a result of the combination of these factors, the statutory maximum for his offense was life imprisonment. 21 U.S.C. Sec. 841(b)(1)(B). This statutory maximum, in turn, meant that Thompson's offense level under the "career offender" provisions of the federal sentencing guidelines was 37. See U.S.S.G. Sec. 4B1.1. The same provisions assign all career offenders to "criminal history" category VI, the guidelines' highest. Id. The guideline range corresponding to offense level 37 and criminal history category VI is 360 months to life. Id. Ch. 5 Pt. A.

At his pre-sentence hearing, however, Thompson asserted that he did not learn that career-offender papers had been filed in his case until after the verdict, and so he had gone to trial under the mistaken impression that he faced a maximum sentence of 137 months under the guidelines. (In the absence of the guidelines' career-offender provisions, Thompson's base offense level would have been 26, id. Sec. 2D1.1(c)(9), and his criminal history category would have been V, corresponding to a guideline range of 110 to 137 months in prison. Id. Ch. 5 Pt. A.) The district court ultimately accepted Thompson's assertion, finding that "[Thompson's] trial counsel did fail to inform the defendant that enhancement papers had been filed or that he could be sentenced to life imprisonment under the Sentencing Guidelines". The court concluded, moreover, that this failure had violated Thompson's Sixth Amendment right to the effective assistance of counsel: under the two-step test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the lawyer's performance had been "deficient" and the deficiency had "prejudiced" Thompson by rendering him "unable to rationally decide whether ... to plead guilty" or to stand trial.

The court found, however, that Thompson had established only limited prejudice. The government had not offered him a plea bargain, and Thompson had made no proffer that he could have given the government "substantial assistance" in other prosecutions. Cf. U.S.S.G. Sec. 5K1.1. Still, Thompson could at least have pleaded guilty to the indictment as it stood, "thereby lowering his Total Offense Level...