U.S. v. Williams

• Decision Date: 23 July 1997
• Docket Number: No. 95-3173,95-3173
• Citation: 113 F.3d 243,324 U.S. App. D.C. 290
• Parties: UNITED STATES of America, Appellee, v. Eric Von WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 243

113 F.3d 243

324 U.S.App.D.C. 290

UNITED STATES of America, Appellee, v. Eric Von WILLIAMS, Appellant.

No. 95-3173.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 1997.

Decided May 20, 1997

Rehearing Denied July 23, 1997.

Appeal from the United States District Court for the District of Columbia (94cr0408-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause, for appellant, with whom A.J. Kramer, Federal Public Defender, was on the briefs. Neil H. Jaffee, Assistant Federal Public Defender, Washington, DC, entered an appearance.

Marian L. Borum, Assistant United States Attorney, argued the cause, for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas J. Tourish, Jr. and Jennifer M. Anderson, Assistant United States Attorneys, were on the brief. John R. Fisher, Washington, DC, entered an appearance.

Before SILBERMAN, WILLIAMS, and HENDERSON, Circuit Judges.

SILBERMAN, Circuit Judge:

Eric Von Williams was convicted of two counts of distribution of cocaine base and two counts of unlawful use of a communication facility. His appeal focuses on various alleged errors at trial, including the denial of a missing witness instruction, a reference to a prior arrest photograph, bad character remarks by the prosecutor, and improper questioning of Williams by the trial judge. We affirm.

I.

The government established that Williams sold crack cocaine on three different occasions in one month to undercover DEA agents. The first sale (with which Williams was not charged because it took place in Maryland) was arranged through an individual known as Maurice, who was cooperating with the DEA to reduce a sentence he was facing; Maurice was the initial link between the DEA and Williams. To set up the two sales with which Williams was ultimately charged, the DEA agent who had made the first purchase (Engram) contacted Williams directly through the pager number that Williams had given him at the close of the first sale. Maurice was not present at either of these two sales (in which Williams sold two and three ounces of crack to Engram for $1,800 and $2,500, respectively); indeed, Agent Engram testified that he never spoke to Maurice about these sales, and that he specifically avoided involving Maurice at all in order to make the case against Williams stronger and because of the physical dangers to undercover agents posed by the use of informants.

Williams did not contest that he sold drugs to Engram; instead, his defense from the outset was that he was induced through threat of bodily harm to him and his family by Maurice, an agent of the government. According to Williams' testimony, the day before the first sale, Maurice--whom he had seen before but whose last name he did not know--asked Williams to deliver a package for him. When Williams balked, Maurice threatened him, and, afraid that Maurice would "probably shoot [him] or something," Williams agreed to deliver the package, which he suspected contained drugs. The next day, Williams delivered the package to Agent Engram, and gave another individual the money he received from the sale.

As to the second and third sales, Williams testified that although he was contacted for each by Engram directly, he engaged in discussions so that Maurice would believe he was continuing to cooperate. After Williams' initial conversations with Engram, Maurice would then call Williams, directing him to sell to Engram and instructing him as to location and price. According to Williams, he received only $50 for his participation in the three sales, and he did not go to the police out of fear that Maurice would harm him or his parents.

The government sought to rebut Williams' defense. It introduced transcripts of the various conversations between Williams and Engram, which, according to the government, demonstrated that Williams was speaking in a code typically used by drug dealers, thereby suggesting predisposition. On Williams' cross-examination, the government brought out that he made cash payments on three automobiles (a Mercedes, a Lexus ES 300, and a Lexus LS 400) and a motorcycle in the 13-month period directly preceding the drug sales, and admitted to paying $2,800 cash on his cellular phone bill during the month of the sales, actions presumably typical of drug dealers. Williams claimed to have worked as a mover, making $1,200 a month after taxes, but admitted on cross-examination that he never filed taxes on this income. Neither party called Maurice as a witness.

II.

As Williams correctly asserts, because he admitted to having sold the drugs, the only real issue at trial was his defense of entrapment. This defense "requires a showing that a defendant was induced by the government to commit a crime for which he lacked any predisposition." United States v. Budd, 23 F.3d 442, 445 (D.C.Cir.1994) (citation omitted), cert. denied, 513 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995). Once the defendant has come forward with evidence of inducement ¹--government behavior that would cause "an unpredisposed person to commit a crime," United States v. Kelly, 748 F.2d 691, 697 (D.C.Cir.1984)--the ultimate burden of persuasion shifts to the government to prove "beyond a reasonable doubt that the defendant was predisposed to commit the crime." Budd, 23 F.3d at 445. Since Williams testified that he was induced, even coerced, by Maurice, the government had reason to introduce evidence either to rebut appellant's claim of inducement or to prove predisposition.

Of course, the most obvious manner in which the government could challenge appellant's story was to call Maurice as a rebuttal witness, which it did not. Instead, the government sought unsuccessfully to introduce through Agent Engram's testimony Maurice's hearsay statements to the effect that Williams and Fats, another drug dealer, worked together. Appellant accordingly requested that the court give the jury what is called the missing witness instruction, allowing the jury to infer that Maurice's testimony would have been unfavorable to the government. We have held that a missing witness instruction is appropriate if (1) "a party has it peculiarly within his power to produce [a witness]"; and (2) the witness' "testimony would elucidate the transaction." United States v. Glenn, 64 F.3d 706, 709 (D.C.Cir.1995) (internal quotation marks and citations omitted). The district court denied appellant's request on the ground that the "government doesn't have to produce confidential informants unless they participate in the transaction in some way."

The government reiterates that position before us, arguing that Maurice could not have given testimony that would have elucidated the second and third transactions because he was not present. That argument is misdirected; it is even a bit disingenuous. The testimony that Maurice would be expected to give goes not to his observation (or lack thereof) of the drug sales, but rather to whether he had induced appellant to engage in those transactions. That was the only issue in the case, and the government, by seeking to elicit Maurice's hearsay statements, tacitly admitted that his testimony was relevant on that issue.

There remains the question, however, whether the government had it peculiarly within its power to produce Maurice. The government argues that Williams knew Maurice, or had friends who knew Maurice, and, in any event, appellant's counsel never asked the government for Maurice's last name or address. In United States v. Tarantino, 846 F.2d 1384, 1404 (D.C.Cir.), cert. denied, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988), we held that "no automatic inference of exclusive government control arises from the fact that witnesses are acting as government informants," but even if the facts here were enough to give rise to an inference of government control--thereby relieving appellant from an obligation to seek a subpoena ²--we think the district court is entitled to demand more than appellant did here to discover Maurice's whereabouts before agreeing to a missing witness instruction. If defense counsel does not even make some effort to obtain information as to the identity or whereabouts of the "missing witness," it may well be that the defense is no more anxious to call the witness than the prosecution. That would appear to be the case here. Appellant claims only that defense counsel "thought" the government would not disclose Maurice's identity, but defense counsel never actually asked. Under these circumstances, the district court did not abuse its discretion in declining to give the instruction. Cf. United States v. Beckham, 968 F.2d 47, 51 n. 3 (D.C.Cir.1992) (In determining whether an alleged error should be "disregarded," FED. R.CRIM. P. 52(b), we may rely on arguments supporting the district court's decision that it did not rely upon.).

Williams also contends that the district court abused its discretion in failing to grant a mistrial on the basis of a reference to a prior arrest photograph of Williams. On the first day of trial, Agent Engram testified that he obtained a photograph of Williams the day after the first drug transaction. When asked by the prosecutor how the photograph "related to" Williams, Engram responded:

This is a picture that was in the possession of the Metropolitan Police Department. This is, I guess, a prior arrest photo that was taken by them.

Williams immediately moved for a mistrial; at the bench, the prosecutor explained to the court that Engram had been instructed not to mention that the photograph was from the Metropolitan Police Department, or that it was from a prior arrest. Although the trial judge denied the motion for a mistrial, the judge did offer to tell the jury whatever Williams wanted it to hear, and, at Williams' request, the court immediately instructed the jury: "In view of the testimony of the officer, I want to advise you that Mr. Williams...