U.S. v. West
| Decision Date | 07 January 2005 |
| Docket Number | No. 03-3115.,03-3115. |
| Citation | 393 F.3d 1302 |
| Parties | UNITED STATES of America, Appellee v. Thomas L. WEST, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 02cr00519-01).
Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.
David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney at the time the brief was filed, John R. Fisher, Elizabeth Trosman, and John P. Mannarino, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and EDWARDS and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judges EDWARDS.
Appellant Thomas L. West was convicted by a jury of possession with intent to distribute 50 grams or more of cocaine base in violation of § 841(a)(1) and (b)(1)(A)(iii) of the Drug Abuse Prevention and Control Act (the "Controlled Substances Act" or the "Act"). 21 U.S.C.A. § 841(a)(1) & (b)(1)(A)(iii) (West 1999 & Supp. 2004). Appellant's arrest occurred after a foot chase following a traffic stop that was initiated when appellant allegedly drove through a stop sign. According to the Government, when the foot chase culminated in a physical struggle between appellant and the pursuing officers, appellant threw down an object which was later identified as a bag containing crack cocaine. Appellant argued that he was stopped on a pretext and that the officer's testimony regarding the drugs was not credible.
On appeal, appellant seeks a new trial, arguing that the trial court erred when it (1) allowed the Government to introduce a copy of his conviction for driving without a permit on the evening of his arrest, and (2) denied his request for a "missing-evidence" instruction based on the Government's failure to produce a copy of the stop sign citation allegedly issued by the arresting officers. Alternatively, appellant seeks a remand for resentencing, arguing that the District Court erred in doubling his mandatory minimum prison term from 10 to 20 years on the basis of a single prior misdemeanor drug conviction in Maryland. We find no merit in appellant's new trial arguments. We agree, however, that the District Court erred in enhancing appellant's sentence by 10 years.
Section 841(b)(1)(A) requires imposition of an enhanced mandatory minimum of 20 years' imprisonment when a defendant has a "prior conviction for a felony drug offense." 21 U.S.C.A. § 841(b)(1)(A). Appellant's Maryland misdemeanor conviction carried with it the possibility of up to four years in prison; he received a sentence of one year with all but eight days suspended. In determining that appellant's prior Maryland misdemeanor triggered an enhancement under § 841(b)(1)(A), the District Court relied solely on § 802(44), which defines a "felony drug offense" as any offense punishable by over one year in prison. 21 U.S.C. § 802(44) (2000). Looking to the language and structure of the relevant provisions of the statute, and considering the applicable canons of statutory construction, including the rule of lenity, we are convinced that § 841(b)(1)(A) must be read in pari materia with § 802(44) and § 802(13), which defines a "felony" as an offense classified by applicable law as a felony. See 21 U.S.C. § 802(13). Under this reading, a prior drug conviction will only provide the predicate for a 10-year § 841(b)(1)(A) enhancement if it is both punishable by more than one year and characterized as a felony by the controlling law. Therefore, we remand the case to the District Court with instructions to vacate appellant's sentence and resentence him to the applicable mandatory minimum of 10 years' imprisonment.
The Government and the defense present similar, though not identical, pictures of the events leading to appellant's arrest in December 2002. The main points of difference involve appellant's alleged running of a stop sign and whether the drugs recovered from the ground where appellant was eventually detained belonged to him. The defense theorized that the traffic stop was pretextual and that, because appellant fled and physically resisted arrest, the officers then charged him with possession of drugs that did not belong to him. Key to appellant's case was the absence of any traffic citation to corroborate the officers' claim that he drove through a stop sign.
The Government's evidence consisted largely of the testimony of the two arresting officers. The officers testified that appellant drove through a stop sign at approximately 25 miles per hour as he turned from Atlantic Street onto Barnaby Street in Southeast Washington, D.C. According to the officers, after they pulled appellant over, he stepped from his car and turned to face them. When the officers ordered appellant back into his car, he fled.
Ignoring repeated orders to stop, appellant ran into the 800 block of Southern Avenue. When he fell, Officer Chumbley tackled him. Officer Chumbley testified that, at some point during their struggle, he saw appellant toss an object with his right hand. Officer Chumbley stated that after the object hit the ground, he saw that it was a clear bag containing a white rock substance. Officer Bevilacqua testified that appellant "made a motion with his right hand out to the side," but he did not see a bag or any other object leave appellant's hand. Trial Transcript ("Trial Tr.") at 345. The officers testified that appellant continued to struggle after the alleged toss. Eventually, Officer Chumbley temporarily blinded appellant with pepper spray and handcuffed him. The police recovered $143 from appellant.
The Government obtained a stipulation from the defense that a DEA analysis of the plastic bag's contents demonstrated that it contained 53.6 grams of cocaine base. A drug expert testified that the amount of cocaine was more consistent with sale than use.
During the defense case, an investigator testified that he visited the area of the arrest seven times in March and April of 2003. He stated that he observed a lot of foot traffic, and he noted that there appeared to be drug activity in the area. In addition, he testified that he could not make the turn from Atlantic onto Barnaby at more than 10 miles per hour and that to do so at 15 miles per hour would probably cause a driver to flip or hit another car. A friend of appellant's testified that appellant had helped him move on the evening of his arrest and that they parted sometime between 8:00 p.m. and 9:00 p.m. in the area of appellant's arrest. The friend also testified that he was familiar with the apartment complex located in the 800 block of Southern Avenue and that it was "infested" with drugs. Id. at 462. The defense established that there were no fingerprints recovered from the bag containing the drugs.
During his opening argument, defense counsel stated that the police would testify that they stopped appellant for running a stop sign and that they issued him a citation for that offense, but that the jury would not see the citation because the police did not have it. After openings, the prosecutor objected to any missing-evidence cross-examination or argument concerning the traffic stop. The Government admitted that it did not have the stop sign citation, but noted that appellant had been convicted of driving without a permit on the night of his arrest. Government counsel stated that if the defense raised the absence of either the stop sign or no-permit citations, he would seek to introduce a certified copy of the record of the appellant's no-permit conviction. The judge responded that the defense was only talking about a missing-evidence argument, not cross-examination to elicit evidence.
The trial judge re-raised the missing-evidence issue a bit later, stating that he would address the Government's concerns on an issue-by-issue basis. Government counsel responded that it would be inappropriate for the defense to argue that the missing citations suggested that the police were lying. He asserted that the citations were not in the Government's case file because traffic offenses are handled by the Corporation Counsel, that the certified copy of appellant's conviction for driving without a permit supported the conclusion that the officers issued both citations to appellant, and that it would be unfair to allow the missing-evidence argument since appellant was not being prosecuted for a traffic offense.
The court made its final ruling regarding the admission of the no-permit record during the cross-examination of Officer Chumbley. On direct, Chumbley testified that he determined, at the scene, that appellant did not have a driver's license. However, Officer Chumbley was asked nothing and said nothing about issuing any citations. During cross-examination, defense counsel questioned Officer Chumbley about his failure to issue a citation for the alleged stop sign violation. Officer Chumbley responded that he had issued a citation and given it to appellant. The officer then volunteered that he had also issued a citation to appellant for driving without a permit and had taken both citations to the Corporation Counsel. Though the testimony regarding the no-permit citation was arguably irrelevant and beyond the scope of counsel's examination, defense counsel did not object.
On redirect, Officer Chumbley indicated that he was unsuccessful in tracking down copies of the traffic tickets, but was able to obtain a certified copy of appellant's no-permit conviction. Again, defense counsel did not object. Defense counsel finally objected when the Government began to lay the foundation to introduce the certified record into...
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