United States v. Mitchell

• Decision Date: 08 March 2016
• Docket Number: 14–3040.,Nos. 14–3039,s. 14–3039
• Parties: UNITED STATES of America, Appellee v. Sherman MITCHELL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

816 F.3d 865

UNITED STATES of America, Appellee

v.Sherman MITCHELL, Appellant.

Nos. 14–3039

14–3040.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 8, 2015.

Decided March 8, 2016.

Douglas J. Behr, appointed by the court, argued the cause and filed the briefs for the appellant.

Elizabeth H. Danello, Assistant United States Attorney, argued the cause for the appellee. Vincent H. Cohen Jr., Acting United States Attorney, Elizabeth Trosman, John K. Han and Stratton C. Strand, Assistant United States Attorneys, were with her on brief.

Before: HENDERSON and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON

.

KAREN LECRAFT HENDERSON

, Circuit Judge:

Sherman Mitchell (Mitchell) was convicted by jury of multiple counts of drug crimes resulting from his role in a phencyclidine (PCP) distribution ring. Mitchell challenges his convictions on several grounds, including, inter alia, the government's purported failure to properly authenticate and demonstrate chain of custody for PCP samples used to establish his guilt and the district court's alleged error in admitting summary witness evidence. We reject his challenges and affirm his convictions.

I. BACKGROUND

A.

In February 2012, the U.S. Drug Enforcement Agency (DEA), led by Special Agent Jamey Tarrh (Tarrh), opened an investigation into drug trafficking between California and the District of Columbia focused on Mitchell and his associate, Harvey Couser (Couser). In early May 2012, Mitchell moved into an apartment at the Onyx on First (Onyx) in the District of Columbia, which was leased by Mitchell's half-brother, Stephon. Although the apartment was leased in Stephon's name, either Mitchell or Couser paid the rent on the apartment from June through November 2012 and Couser had apartment keys Stephon had given him.

Between May and August 2012, Mitchell took seven roundtrip flights to Los Angeles, remaining there for short periods each time. During every trip, one or more packages were shipped via UPS to Mitchell's apartment at the Onyx from Los Angeles, with multiple packages addressed to "Jane Mitchell"—"Jane" matching Mitchell's mother's given name. The government did not seize any of the packages but DEA agents observed Couser retrieving the packages addressed to Jane Mitchell at the Onyx several times. Specifically, on August 10, 2012, Tarrh's team identified Couser entering the Onyx and retrieving a package shipped from Los Angeles by "James Campbell"—"James" matching Mitchell's father's given name and "Campbell" matching Mitchell's mother's surname—to Jane Mitchell at the Onyx. The August 10, 2012 package was labelled with a contact number corresponding to a cell phone later seized from Couser.

B.

Mitchell eventually moved to Los Angeles in late August 2012, where he resided in various hotels until his arrest in February 2013. The shipments to the Onyx apartment from Los Angeles continued, with Couser retrieving multiple packages at the Onyx in September, October and November 2012. On November 24, two packages were shipped from Los Angeles to the Onyx apartment for delivery on November 26. The two concierges at the Onyx, who cooperated with the ongoing investigation, notified Tarrh of the delivery of the packages. Tarrh asked the concierges not to deliver the packages to Couser until he, Tarrh, gave them permission. When Couser arrived at the Onyx to retrieve them, the concierge on duty told Couser that no package addressed to Mitchell's apartment had been delivered that day. Couser returned to the concierge desk a few hours later and again requested the packages. The concierge again reported that no packages had been delivered and, at that point, Couser handed the concierge a cell phone to speak with Mitchell. Mitchell identified himself and excitedly explained the importance of the packages and asked her to contact Couser immediately when the packages arrived.

While the delivery of the packages to Couser was delayed, Tarrh obtained a warrant, picked up the two packages from the Onyx and searched them. Inside the boxes, Tarrh found a total of four 64–ounce apple juice bottles filled with amber liquid. The bottles were delivered to Metropolitan Police Department (MPD) Detective Joseph Abdalla (Abdalla), who weighed the bottles, removed samples of the amber liquid from each and prepared the bottles for controlled delivery by refilling three of the bottles with tea and the remaining bottle with a mixture of tea and a small amount of the amber liquid. Following protocol, Abdalla then sent the remaining amber liquid to the MPD property division for destruction.¹ Tarrh repacked the two boxes and returned the boxes to the Onyx for delivery. The next day, Mitchell telephoned the Onyx manager hourly about the packages until they were picked up by Couser once Tarrh had given permission to release them.

When Couser returned to the Onyx to make the pick-up, Tarrh arrested him as he left the building. Two cell phones were recovered from Couser at that time. A subsequent search of the Onyx apartment led to the seizure of a money-counting machine, starter fluid, an oral syringe, a funnel and empty half-ounce glass vials—all tools of the PCP distribution trade.

C.

Based on information obtained at Couser's arrest, Tarrh and his team executed an arrest warrant for Mitchell at a Gardena, California hotel on February 6, 2013.² During Mitchell's arrest, DEA agents seized a scrap of paper from his pocket with the name "Eric Gates" written on it. The agents found four cell phones in Mitchell's hotel room, one of which displayed a text message with a UPS tracking number that was open and visible to the agents, and another scrap of paper with addresses for an "Eric Gates" in Gardena and a "Lisa Carter" in the District of Columbia. Based on this information, Corporal Dennis Reighard (Reighard) of the Prince George's County Police Department intercepted two packages from the Prince George's County UPS facility before the packages could be delivered to the District addresses. Reighard seized the first package—corresponding to the tracking number displayed on Mitchell's phone at the time of his arrest—on February 8, 2013. The package contained three 64–ounce bottles filled with amber liquid. As he had done with the November 2012 package, Abdalla took samples from the bottles and the DEA laboratory determined that the amber liquid in one of the bottles, weighing 1,148 grams, contained 15.7 per cent PCP. Reighard seized the second package—addressed to "Lisa Carter" and shipped by "Eric Gates"—on February 12. This package contained a 32–ounce bottle filled with amber liquid. After Abdalla again removed a sample from the bottle, the DEA laboratory determined that the bottle's amber liquid, weighing 776.7 grams, contained 15.9 per cent PCP.

D.

Reighard had also been involved with the seizure of a package before the start of the DEA investigation. On July 1, 2011, Reighard took custody from the UPS facility in Burtonsville, Maryland of a package that was addressed to the mother of one of Mitchell's children. The UPS security team had opened the package and contacted Reighard because it was leaking a substance with a strong odor the security team believed to be PCP. The package contained two one-gallon and four 64–ounce plastic bottles filled with amber liquid. Reighard stored the unopened bottles at the Prince George's County Police Department until May 7, 2013, when the DEA connected the tracking number for the July 1, 2011 package to Mitchell. At that point, Abdalla removed a sample from each of the six bottles and the DEA laboratory, after testing one sample, found that the amber liquid from that bottle, weighing 482.8 grams, contained 13.9 per cent PCP.

E.

On April 4, 2013, Mitchell and Couser were indicted on one count (Count I) of conspiracy to possess with intent to distribute one kilogram or more of a mixture or substance containing PCP between February 2011 and February 2013 in violation of 21 U.S.C. § 841(a)(1)

, (b)(1)(A)(iv) and 21 U.S.C. § 846 and one count (Count II) of possession with intent to distribute, or aiding and abetting possession with intent to distribute, one kilogram or more of a mixture or substance containing PCP on November 27, 2012 in violation of 18 U.S.C. § 2(a) and 21 U.S.C. § 841(a)(1), (b)(1)(A)(iv).³ Mitchell was further indicted on two counts of attempted unlawful possession with intent to distribute, aiding and abetting unlawful possession with intent to distribute or attempting to cause unlawful possession with intent to distribute one kilogram or more on February 8, 2013 (Count III) and one hundred grams or more on February 12, 2013 (Count IV) of a mixture or substance containing PCP in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(A)(iv), (b)(1)(B)(iv). His jury trial lasted from October 1, 2013 through October 15, 2013. On October 21, 2013, the jury found Couser not guilty on Counts I and II and found Mitchell guilty on Counts I–IV. After denying Mitchell's motions for acquittal and for a new trial, the district court sentenced Mitchell to life imprisonment and 120 months' supervised release on Counts I–III and 360 months' imprisonment and 96 months' supervised release, to run concurrently, on Count IV. Mitchell timely appealed. Our jurisdiction arises under 28 U.S.C. § 1291.

II. ANALYSIS

Mitchell raises multiple challenges to his conviction, almost all of which are without merit and require no further discussion. See, e.g., United States v. Hoover–Hankerson, 511 F.3d 164, 168 (D.C.Cir.2007)

("[The defendants] present a large number of issues on appeal, not all of which deserve discussion."); United States v. Thomas, 97 F.3d 1499, 1503 (D.C.Cir.1996) ( "Thomas's remaining contentions do not warrant discussion. These have been considered and rejected."). We address only two arguments in full: the government's alleged failure to authenticate and prove chain of custody for...