U.S. v. Thorne

• Decision Date: 22 October 1993
• Docket Number: Nos. 91-3123,91-3167 and 91-3184,91-3134,s. 91-3123
• Parties: , 39 Fed. R. Evid. Serv. 246 UNITED STATES of America, Appellee, v. Vincent A. THORNE, Appellant. UNITED STATES of America, Appellee, v. Ian A. THORNE, Appellant. UNITED STATES of America, Appellee, v. Antonio PENDER, Appellant. UNITED STATES of America, Appellee, v. Raymond M. HAYNES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1504

997 F.2d 1504

302 U.S.App.D.C. 302, 39 Fed. R. Evid. Serv. 246

UNITED STATES of America, Appellee, v. Vincent A. THORNE, Appellant.

UNITED STATES of America, Appellee, v. Ian A. THORNE, Appellant.

UNITED STATES of America, Appellee, v. Antonio PENDER, Appellant.

UNITED STATES of America, Appellee, v. Raymond M. HAYNES, Appellant.

Nos. 91-3123, 91-3134, 91-3167 and 91-3184.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 11, 1993.

Decided July 13, 1993.

Rehearing and Suggestion for Rehearing En Banc

Denied Oct. 22, 1993.

Appeal from the United States District Court for the District of Columbia (Criminal Nos. 90-00422-01, 90-00422-02, 90-00422-03 and 90-00422-05).

Allen E. Burns, Asst. Federal Public Defender, argued the cause for appellant Raymond M. Haynes. On brief was A.J. Kramer, Federal Public Defender.

Thomas F. Dunn (appointed by this court), argued the cause for appellant Vincent A. Thorne.

Jensen E. Barber (appointed by this court), argued the cause for appellant Ian A. Thorne.

On brief was James T. Maloney (appointed by this court), for appellant Antonio Pender.

Peter H. White, Asst. U.S. Atty., argued the cause for appellee. On brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Elizabeth Trosman and Randall D. Eliason, Asst. U.S. Attys.

Before BUCKLEY, D.H. GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Vincent Thorne, Ian Thorne, Antonio Pender and Raymond Haynes appeal their drug-related convictions. The four defendants challenge the sufficiency of the evidence. They also contend that the district court erred in ruling on several evidentiary matters, including the admission of purported drug ledgers, the failure to appoint a chemist for the defense and the limitation on cross-examination of the government's expert witness. They additionally contend that the police search of the house was invalid because the police violated the federal "knock and announce" statute. Because we find the evidence insufficient to support the charges against Vincent Thorne, we reverse his convictions. We affirm the convictions of the other three defendants.

I.

On September 4, 1990, at approximately 5:00 p.m., Officer Philip Burton of the Metropolitan Police Department established a surveillance post in an unmarked van parked across the street from 3472 14th Street, N.W. During the next two hours, Burton observed lots of activity around the house. A number of people congregated on the front porch. At about 5:30 p.m., Burton witnessed three apparent drug sales conducted by one of the people who had been on the porch. The actual sales took place in a grassy area about a block away from the house.

Approximately fifteen minutes after the transactions, Burton observed Pender, who was on the porch, hand an individual in pink shorts a gym bag. The two of them walked into the house. The individual in pink shorts left the house shortly thereafter. At about 6:15 p.m., Burton observed Haynes on the porch, receiving money from Royce Thomas. Haynes and Thomas then walked along 14th Street and were joined by a third individual. The third individual entered the park with Thomas and gave money to Thomas. They rejoined Haynes and the three then went around to the south side of the house out of Burton's view. At about 6:30 p.m., Haynes, then on the east side of 14th Street, received money from another individual in exchange for a small plastic bag. Haynes next placed some other small bags in a container. About twenty minutes later, in the park next to the house, Haynes made two drug sales to Officers Robert Arrington, Jr. and Tawana May. Burton also observed these transactions.

Before the sales to the police officers, Officer Burton observed Ian Thorne talking with Keiron Boyce and other people on the front steps of the house. Officer Arrington observed Ian Thorne speaking with Haynes immediately before Haynes sold crack to Officer May. Officer Arrington also saw Ian Thorne pointing, and apparently directing an individual, to the park area where Haynes was selling drugs.

The police arrested Haynes moments after his sales to Officers Arrington and May. ¹ While Haynes was being arrested, Officer Burton noticed Pender and another individual pointing toward the police. Pender then walked inside the house. The police, while executing a search warrant, detained Ian and Vincent Thorne, Boyce and several other people in front of the house. ² Meanwhile, Officer Burton was scanning the area and noticed Pender on the east side of 14th Street wearing a red jacket. As the police walked across the street to interview another individual, Pender began to walk away slowly through a crowd that had gathered. He was looking back at the house and the police officers. After he turned the corner, he continued to walk away very rapidly. The police then arrested him.

During the search of the house, the police found drugs in three different locations: 381 grams of 48% pure crack in a brown paper bag protruding from under a pile of clothes on the top shelf of one of the two closets in one of the second-floor bedrooms, 3.372 grams of 66% pure crack behind the kitchen dryer in the "furnace room" and 2.716 grams of 62% pure crack in a box on the side porch of the house. In the bedroom closet containing the drugs, the police also found an ammunition clip with five live rounds and a brown paper bag with a triple-beam scale. In the other closet, they located a shoe box with a brick of non-narcotic white substance. Underneath one of the beds was a BB gun and a bag filled with ammunition. The dresser in the bedroom contained several documents, including many with Ian Thorne's name on them and addressed to him at 3472 14th Street, N.W., a sales receipt for a car indicating that Pender had made a down payment on a Nissan sports car, at least two documents with Boyce's name on them and a book with Vincent Thorne's name in it. The dresser also contained an address book and a note pad (the ledgers). Each listed Pender's nickname ("Twin") and Haynes's first name ("Raymond")--the former with the names next to numbers that appeared to represent amounts of money and the latter with the names next to what appeared to be telephone and beeper numbers. ³ The police found a number of guns and other drug paraphernalia around the house.

When questioned by the police, Ian and Vincent Thorne and Keiron Boyce indicated that they lived at 3472 14th Street, N.W. ⁴ When arrested, Ian Thorne was carrying $190, Vincent Thorne was carrying $50 and Pender was carrying $59. The money apparently was not marked. Haynes was carrying $246, including $100 in marked money.

A grand jury indicted Vincent Thorne, Ian Thorne, Pender and Boyce for possessing with intent to distribute in excess of 50 grams of cocaine base. It also indicted the four plus Haynes for conspiring to distribute and to possess with intent to distribute in excess of 50 grams of cocaine base. In addition, it indicted Haynes on two counts of distribution.

At trial, Vincent Thorne testified that he returned home at 5:30 p.m. that day and was doing schoolwork until shortly before the police arrived to execute the search warrant. He indicated that he had never seen drugs in the bedroom (where the crack was found) or elsewhere in the house. Boyce likewise testified that he had never seen drugs in the house. Ian Thorne called four witnesses who testified that Sean Boyce, Keiron Boyce's younger brother, admitted that he took the drugs into the house and was holding them for a friend. Haynes and Pender did not present witnesses in their defense.

The jury found the defendants guilty on all counts. The district court denied all motions for judgment of acquittal. It sentenced Vincent Thorne, Ian Thorne and Haynes to 151 months' imprisonment each and Pender to 240 months' imprisonment. Vincent Thorne, Ian Thorne, Pender and Haynes appeal the denial of their motions for judgment of acquittal. Boyce's appeal is not before us.

II.

A. The Ledgers

Pender and Haynes first challenge the admissibility of the ledgers. As noted, the ledgers found in the dresser in the bedroom listed Pender's nickname and Haynes's first name beside what appeared to be telephone and beeper numbers and money amounts. The appellants argue that the ledgers were not properly authenticated and contained hearsay. We reject both contentions.

Rule 901(a) of the Federal Rules of Evidence provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Pender and Haynes contend that the government was required to use handwriting analysis or to identify some other distinctive characteristic in order to authenticate the ledgers and link them to Pender and Haynes. They did not raise this argument at trial, however; therefore we review only for plain error. See United States v. McGlory, 968 F.2d 309, 346 n. 24 (3d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1388, 122 L.Ed.2d 763 (1993); United States v. Papia, 910 F.2d 1357, 1366 (7th Cir.1990); United States v. Hawkins, 905 F.2d 1489, 1494 (11th Cir.1990), cert. denied, 498 U.S. 1038, 111 S.Ct. 707, 112 L.Ed.2d 696 (1991). To constitute plain error, the error must "rise to the level of error so 'obvious and substantial' or so 'serious and manifest' that it affects the very integrity of the trial process." United States v. Blackwell, 694 F.2d 1325, 1341 (D.C.Cir.1982) (citations omitted).

The ledgers were found with documents belonging to the defendants in the bedroom dresser. One of the documents was a sales receipt with Pender's name on it. The other documents contained the Thornes' and Boyce's names. The failure to authenticate the ledgers further through handwriting...