U.S. v. White, 90-2862
| Decision Date | 14 July 1992 |
| Docket Number | No. 90-2862,90-2862 |
| Citation | 969 F.2d 681 |
| Parties | UNITED STATES of America, Appellee, v. Tony WHITE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alan W. Cohen, St. Louis, Mo., argued (Robert A. Cox, on the brief), for appellant.
Michael W. Reap, St. Louis, Mo., argued, for appellee.
Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
Tony White appeals his conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm during the commission of a drug trafficking offense, 18 U.S.C. § 924(c)(1). White argues that he is entitled to a new trial because the prosecutor improperly referred to his Jamaican nationality during closing argument, and that the government's proof he possessed a small amount of cocaine when arrested was insufficient to convict him of possession with intent to distribute. We affirm.
White's conviction followed a highly confrontational trial. White testified that the police beat him and then planted the cocaine and the firearm he was charged with possessing. The police testified that White was carrying the drugs and gun, lied about the beating, and suffered minor injuries because he resisted arrest. To place the issues raised on appeal in context, we will briefly summarize the evidence presented by the prosecution and defense. The Government's Case.
According to St. Louis police officer Thomas Malecek, the incident began when a 1979 Cadillac ran a stop sign. Officer Daniel Cole, driving a squad car in which Malecek and a third officer were riding, witnessed the violation and turned on the car's flashing lights. The Cadillac, driven by White, did not pull over. With the squad car now in close pursuit, White put his left hand out the driver's window and sprinkled white powder from a clear plastic baggie onto the road. He turned right at the next intersection, dropped another baggie onto the road, and then threw a third baggie and a revolver out the passenger window.
White finally stopped his car after several blocks and fled. Officer Malecek gave chase, tackled White, and tackled him again when he broke free. White's head hit the pavement during both tackles. He was arrested and searched. A fourth baggie containing what was later determined to be 5.21 grams of cocaine was found in his pocket. Other officers then took White to the hospital, where he was released following treatment for a broken nose and a head cut that required six stitches.
Meanwhile, Officer Malecek retraced the chase route in search of the items White had discarded. Malecek found a .38 caliber revolver lying in roadside grass about six inches from the pavement. He found one plastic baggie still containing white powder. He found the spot where White sprinkled powder out the window, scraped up what he could off the wet pavement with three-by-five-inch index cards, and put the scrapings in a baggie from his squad car. He never found the third baggie he saw White throw from the moving car.
A police chemist subsequently determined that the powder in the three baggies totaled 7.54 grams of cocaine of varying purity. The government introduced agent testimony that this quantity of cocaine was worth $900-$1,100 in the St. Louis market, would make 75-80 "lines" or doses of cocaine, and was for distribution purposes. In addition, the prosecution introduced numerous Western Union wire transfer forms totalling more than $2,000 and signed by White during a year when he earned about $11,000.
The Defense Case.
White testified that he was on his way home at the time of the arrest and pulled over as soon as he noticed the squad car's flashing lights. Before pulling over, the only thing he threw from his car was garbage from a White Castle meal. After he pulled over, Officer Cole exited the squad car, came to White's car window, and questioned him about the traffic violation. Cole then exclaimed, "We got us a Jamaican man," hit White repeatedly in the face, and then pulled White from the car and continued beating him. The arresting officers then planted the gun and drugs.
The defense noted that the gun had no scrapes, dents, or other damage consistent with having been thrown from a moving car. The gun was twice inscribed with Malecek's police ID number, rather than once as department policy prescribes, a fact that Malecek could not explain. White contended that the gun was a "throw down," a weapon already in the possession of the police that was used to frame him.
White also showed the jury that there was no dirt or other road debris in the cocaine Malecek allegedly scraped off the road. White and members of his family testified that they had reenacted Malecek's version of the incident; they opined that someone sitting in the passenger seat of a car traveling close behind White's Cadillac could not see White's shoulder and arm when he reached out the driver's side window. In addition, the baking soda they sprinkled from White's moving car scattered and was uncollectible, except for some that blew back into the car. (Malecek testified that police had found no cocaine powder in the car or on White's clothing.)
The defense also introduced a bloody eyeglass lens allegedly found on the floor of White's car the morning after his arrest and photos of his car's interior showing blood-colored stains on the driver's sun visor. However, this evidence, intended to corroborate White's description of the beating, was rather badly discredited.
The jury convicted White on both counts, and the district court 1 sentenced him to seventy-eight months in prison. A major portion of this sentence is attributable to the firearm count, which carries a mandatory five-year consecutive sentence.
During the trial, the jury learned through defense testimony that White emigrated from Jamaica as a teenager and was not a U.S. citizen. Near the end of the prosecutor's rebuttal closing argument, he remarked that White is not a citizen. White's principal contention on appeal is that this was a comment on his Jamaican nationality that denied him a fair trial, like the "racially inflammatory" assertions that Jamaicans were taking over the Washington, D.C. crack trade in United States v. Doe, 903 F.2d 16, 24 (D.C.Cir.1990).
A close review of the trial record reveals that this issue was not properly preserved for appeal. The prosecutor made the remark while attempting to rebut White's argument that the police had beaten him and then planted the drugs and gun:
MR. REAP [the prosecutor]: ... You [the jury] decide whether society has been wronged in this case and he has committed a crime, or whether he has been wronged, and by your verdict that is how you do it. If he wants to sue the city police for pulling him down, let him. If he wants to file an Internal Affairs report, let him. Those are his rights, even though he is not even a citizen at this point. That is how beautiful this country is.
MR. COX [defense counsel]: Objection, Your Honor.
(Emphasis added.) The prosecutor then continued his argument without further objection.
This colloquy demonstrates that the district court found the prosecutor's remark innocuous and then overruled White's objection to...
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