U.S. v. Washington, 04-1700.

• Decision Date: 06 January 2006
• Docket Number: No. 04-1700.,04-1700.
• Citation: 434 F.3d 7
• Parties: UNITED STATES of America, Appellee, v. George WASHINGTON, a/k/a Anthony Long, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 7

434 F.3d 7

UNITED STATES of America, Appellee, v. George WASHINGTON, a/k/a Anthony Long, Defendant, Appellant.

No. 04-1700.

United States Court of Appeals, First Circuit.

Heard November 9, 2005.

Decided January 6, 2006.

COPYRIGHT MATERIAL OMITTED

William Maselli for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before SELYA and LYNCH, Circuit Judges, and Smith,^* District Judge.

LYNCH, Circuit Judge.

George Washington, a resident of Maine who also goes by the name Anthony Long, sold cocaine base to a police informant in Lewiston, Maine, on April 15, 2003 and again on April 23, 2003.

Washington was charged with two counts of distribution of five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Washington's co-defendants Nicholas Blake, John Brown, and Alvin Jackson were also charged with various violations of the federal drug laws; they pled guilty. After a jury trial, Washington was convicted of both counts; the jury specifically found that the amount of cocaine base was five or more grams for each count. Because Washington had prior felonies on his record, including violent felonies and a prior conviction for possession of cocaine with intent to distribute, he was sentenced as a career offender, see U.S.S.G. § 4B1.1, to concurrent prison terms of 360 months on each count. This was the minimum Guidelines sentence; he could have been sentenced to life imprisonment. See 21 U.S.C. § 841(b)(1)(B); U.S.S.G. § 4B1.1.

I

Washington appeals from his conviction and from his sentence. As to his sentence, he argues it should be vacated and remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government has agreed to this remand, and so we vacate the sentence and remand for resentencing.

This leaves Washington's challenges to his conviction. The challenges are of two kinds: The first has to do with the evidence. Washington argues that certain evidence was erroneously admitted and the error was so prejudicial as to deny him a fair trial. He also argues that the evidence, which in his view was not credible, was insufficient to support the conviction. Second, Washington attempts to reargue a complaint about the racial composition of his jury panel which he had presented pro se to the district court. A brief description of the case suffices to set the stage.

A. Background

Washington was convicted upon the testimony of a government informant, Toby White, to whom Washington sold over 35 grams of crack on two different days (12.8 grams on the first occasion and 23.7 grams on the second), as well as on the testimony of law enforcement agents and cooperating co-defendants, audiotapes of the two transactions, and associated telephone calls.

The first transaction was on April 15, 2003 at 20 Knox Street, Apartment 301, in Lewiston. There, while DEA Agent Genese waited in the car, informant White purchased from Washington 12.8 grams of cocaine for $700. White had not met Washington before. In fact, White had tried to buy cocaine earlier from co-defendant Alvin Jackson, who had none, and who had turned to Washington, by way of Brown and Blake, to provide a supply. Washington and another man, whom White understood to be Washington's cousin, personally handed the cocaine to White. Washington also gave White his phone number so White could "contact him directly next time" about buying drugs. Washington and the cousin also told White that "the next time" the price would be $800. During this transaction, Washington went by the name "Tony." White reported the details of the transaction to Agent Genese, including that he had obtained the cocaine from two black men and that the one who sold him the drugs was named "Tony."

The "next time" came soon, on April 23, 2003. White had called Washington to buy more drugs, and they had agreed to meet on April 23 at Washington's apartment at 67 Pierce Street in Lewiston. This time White purchased 23.7 grams of crack cocaine from Washington for $1300.

The principal, but not sole, defense theory was that someone named "Tony" may very well have sold the drugs, but that Washington was not that "Tony." There was defense evidence that Washington was in Massachusetts on April 23 and so he could not possibly have been the same "Tony" who sold the drugs to White that day. But the prosecution had evidence that on April 23, shortly after the transaction, Lewiston police officer Wayne Clifford visited Washington's apartment on a ruse. The man whom Clifford recognized as "Anthony Long" came to the doorway, identified himself as Anthony Long, and confirmed that no other black man lived in the apartment or had stayed there that day. Clifford made an in-court identification of the man he saw that day as the defendant, Washington. White, too, made an in-court identification of Washington as the man who had sold him cocaine.

Washington and others were arrested on June 3, 2003. Washington identified himself as Anthony Long when he was arrested.

The jury was played the audiotapes of the April 15 and April 23 transactions, as well as tapes of conversations between Washington and White setting up the April 23 deal.

Washington focuses on the fact that the jury was also played audiotapes of eight telephone conversations between White and Jackson that occurred on April 13, 14, and 15. In these conversations, White and Jackson discussed a potential drug deal, which ultimately came to be the April 15 transaction. The two also engaged in casual conversation about a variety of other subjects. Washington did not participate in these conversations and was not mentioned by either his real name or his alias. The prosecution did not intend to introduce the tapes of the April 13 and 14 conversations, but did so because the defense wanted the tapes in evidence.¹

The prosecutor said that she would not object to the admission of all the conversations, but she did object to a few sentences at the beginning of the first conversation. In the government's view, this portion, in which White and Jackson discuss women in a derogatory manner, was inflammatory, might offend the jurors, and should be excised. The defense objected to the redaction, but not to the playing of the tapes. On the contrary, defense counsel insisted that the calls of April 13, 14, and 15 between White and Jackson be played in their entirety.² The defense stated that these calls demonstrated that White was deceitful and not credible; he was a bad person and a poseur, and he should not be trusted in what he said. Over defense counsel's objection, the court redacted the sentences as to which the prosecution had objected. Both sides stated that they had no further objections.

At trial, the slightly redacted tapes of the April 13, 14, and 15 conversations between White and Jackson were played for the jury, with defense counsel interjecting expressly to say that he had no objection and "[t]hat's fine."

B. Challenges to Admission of Evidence

Most of Washington's evidentiary objections were waived or forfeited; one, described later, was preserved.

1. Waived Challenge to Telephone Calls

It will be no surprise that we reject Washington's appellate claims of error based on those audiotapes which the defense had admitted into evidence for its own tactical reasons. Washington now argues on appeal that the conversations between White and Jackson leading up to the sale on April 15 "established an unsavory prejudicial tone which could not but damage [Washington] before the jury." The tapes were admitted because Washington's trial counsel made a deliberate strategic choice that the tapes should be admitted to establish an unsavory tone, which would damage White, the government's chief witness, before the jury. This is classic waiver, and we will not even consider the argument. See United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (stating that there is no error where the deviation from a legal rule has been waived, and defining waiver as "the `intentional relinquishment or abandonment of a known right'" (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))); United States v. Mitchell, 85 F.3d 800, 807-08 (1st Cir.1996) (where defense affirmatively agreed to government's proposed use of evidence, waiver occurred, and plain error review does not apply).

2. Forfeited Challenges to Various Evidence

Several other pieces of evidence now resurrected for appeal were also admitted without objection, and so the objections were forfeited. See Olano, 507 U.S. at 731, 733, 113 S.Ct. 1770; Mitchell, 85 F.3d at 807. These forfeited claims involve evidence of a prior arrest, statements of co-defendants, and the tape recording of the April 15 transaction. For this court to correct a forfeited error, there must be an error, it must be plain, it must affect substantial rights, and it must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Olano, 507 U.S. at 732, 113 S.Ct. 1770. On appeal, Washington invokes the plain error rule, to no avail.

Washington argues that it was plain error to allow a police officer who had arrested him to testify about an earlier arrest and to explain that that arrest was for something other than the inspection sticker violation which caused the officer to stop Washington's car. The first reference to an arrest came during direct examination by the prosecution.³ Defense counsel did not object during direct examination, move to strike during cross examination,⁴ or seek a limiting instruction.

Washington asserts that Officer Clifford's testimony about the arrest was prior bad acts evidence, and that it was impermissible under Fed.R.Evid. 404(b), which provides, in part, that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the...