USA. v. Evens

• Decision Date: 27 June 2000
• Docket Number: No. 99-3068,99-3068
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Cornell Francis Evans, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 80

216 F.3d 80 (D.C. Cir. 2000)

United States of America, Appellee v. Cornell Francis Evans, Appellant

No. 99-3068

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2000

Decided June 27, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(No. 98cr00378-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs were A. J. Kramer, Federal Public Defender, and Jennifer M. Blunt, Assistant Federal Public Defender. Evelina J. Norwinski, Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S. Attorney.

Before: Randolph, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

The defendant in this case, Cornell Evans, was convicted of multiple felonies relating to the possession and distribution of illegal narcotics. The principal issue on appeal concerns the testimony of an FBI agent who stated at trial that the government "had received information" that defendant was involved in drug trafficking. Defendant contends that this testimony was hearsay and that its admission was erroneous. Defendant is correct. We conclude, however, that the error was harmless, and therefore affirm his convictions.

I

This case arose out of an undercover narcotics operation conducted by the Federal Bureau of Investigation. In the fall of 1996, special agents of the FBI met with Thomas "Tee" Rose, a former District of Columbia resident who was serving a federal prison sentence at the Fairton Correctional Institution and who had two additional state cases pending against him. The agents agreed to help Rose with his sentence and pending charges in return for his assistance in the investigation of other crimes. Thomas Rose told the agents that defendant Evans was involved in drug trafficking, and he referred them to his uncle, George Rose of Pennsylvania, who agreed to assist the FBI provided that his incarcerated nephew would receive the benefit of his cooperation.

George Rose contacted the defendant by telephone in early March 1997. In that and subsequent conversations, all taped by the FBI, Rose arranged to purchase crack cocaine from Evans at a barber shop where Evans worked. The subject of drugs first arose when Rose complained that "[t]he quality of stuff" in Pittsburgh was "terrible." Evans then said: "I got a few people I can talk to ... depending on what you want."Defendant noted that the "going price was forty-five for an eighth" but that there was a shortage, so prices were rising. He agreed to look into current prices, and in a series of further calls the two worked out the details of the transaction. On March 18, 1997, Rose met Evans outside the barber shop and gave him $1,800 in cash for 62 grams of crack. The purchase was captured on tape by a body recorder worn by Rose and on film by FBI surveillance cameras.

Ten days later, George Rose telephoned Evans and the two discussed another drug transaction. On April 1, 1997, Rose again met Evans at the barber shop, where he purchased approximately 124 grams of cocaine powder for $3,600. As before, Rose wore a body recorder that taped the transaction.Rose tried to arrange a third transaction on April 23, but Evans said that his drug supply had dried up.

The FBI arrested Evans more than a year later, on October 13, 1998. In a search incident to the arrest, agents discovered four small bags of cocaine powder rolled up in Evans' pants leg. After waiving his Miranda rights, defendant admitted the March 18, 1997 transaction but claimed not to remember the subsequent deal on April 1. He told the agents that "Tee" had called him from jail and asked him to "show around" his uncle, George Rose. He said that George Rose had then contacted him and expressed an interest in obtaining cocaine, and that he had agreed to help Rose out.According to Evans, someone in the barbershop whom he did not know had given him the names of two people who could supply him with cocaine. Evans then contacted those people, whose names he also did not remember. The suppliers brought the drugs to Evans at the shop, where he delivered them to Rose. Evans said that he had provided the drugs "as a favor to Tee and George Rose." 2/4/99 a.m. Tr. at 80.

Evans was charged with unlawful use of a communications facility, distribution of cocaine and cocaine base, and possession of cocaine. The case went to trial on February 4, 1999, and defendant was convicted on all counts.

II

On appeal, Evans raises four challenges to his convictions and sentence. Of these, only one merits considerable attention: Evans' claim that the district court committed reversible error by admitting certain government testimony into evidence. We address that contention first, beginning with a recitation of the relevant facts.

A

The government's first witness at trial was FBI Special Agent Neil Darnell. After Darnell testified about the origins of the undercover operation, including the FBI's contact with Thomas Rose and George Rose's agreement to cooperate, the prosecutor asked the agent how he "came about knowing Mr. Evans." 2/4/99 a.m. Tr. at 26. Defense counsel objected on the ground that the question necessarily called for hearsay as to what Thomas Rose had told the FBI. The defense emphasized that Rose was not a witness and would not be available for cross-examination. In response, the prosecutor argued that the evidence was not hearsay because it was only offered "to establish where the FBI met with George Rose and why they did what they did with George Rose." Id. The district court overruled the objection.

The prosecutor resumed his questioning by asking Darnell why he had specifically discussed Evans with George Rose. Agent Darnell answered: "We had received Mr.--or information that Mr. Evans was involved in drug trafficking and--." Id. at 27. Defense counsel interrupted with an objection, which was again overruled. Agent Darnell then added: "And Mr. Rose was in a position to directly go in and approach Mr. Evans about narcotics." Id. The prosecutor then asked whether the FBI's "information" had come from Thomas Rose, and Darnell answered that it had. The court sustained an objection to this question and answer, and directed the jury to disregard the latter.

Shortly thereafter, the defense requested a bench conference and moved for a mistrial based on the admission of Darnell's hearsay testimony that the FBI "had received information" that Evans was involved in drug trafficking. Counsel argued that the jury could infer that Thomas Rose was the one who had identified Evans as a drug dealer, that this made it appear more likely that Evans had committed the charged acts, and that Evans would be unable to cross-examine his accuser "because this guy is not going to be here to testify."Id. at 39-40. Again, the government argued that it had elicited the testimony not to prove the truth of the matter asserted, but rather "to prove why the FBI did what they did." Id. at 40. The court denied the mistrial motion without prejudice to its being renewed later in the proceedings. At the end of the government's case-in-chief, defense counsel renewed the motion, and the court made the same ruling.

Evans' defense consisted of the testimony of three witnesses, each of whom said they had never seen any indication that defendant distributed drugs, as well as Evans' testimony on his own behalf. On the witness stand, Evans admitted to his participation in the two charged drug transactions. He testified that Thomas Rose had told him that his uncle, George Rose, was coming to D.C. and had asked him to show George around. Evans said he had not expected George to ask him to supply drugs, but that he had been able to obtain some for him from sources whose names he did not remember. Evans maintained that the two transactions with George Rose were the only times he had ever distributed drugs, and specifically denied that he had ever sold drugs with Thomas Rose. He further stated that he had agreed to participate in the two sales because he and Thomas Rose "had a good friendship." 2/5/99 Tr. at 112; see also id. at 124.

The defense renewed its motion for a mistrial two more times--after it rested and at the close of all the evidence. In one colloquy, the court acknowledged that it "might have been a mistake to overrule the objection" to Darnell's testimony, but allowed the testimony to stand. 2/4/99 a.m. Tr. at 41.

In closing argument, defense counsel conceded Evans' participation in the two drug transactions. He argued, however, that defendant had been unlawfully entrapped into participating. Although the district court gave instructions regarding the entrapment defense, the jury returned a guilty verdict on every count.

B

Defendant contends that Agent Darnell's testimony that the FBI "had received ... information that Mr. Evans was involved in drug trafficking" was inadmissible hearsay--that is, "a statement, other than one made by the declarant while testifying at the trial ..., offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801 (defining hearsay); see Fed. R. Evid. 802 (making hearsay inadmissible). We review this allegation under the abuse of discretion standard. See United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994).

The problem with hearsay is that it deprives the defendant of the opportunity to cross-examine the person who uttered the statement at issue. Here, the government presented allegations of prior drug dealing, and the defendant was unable to cross-examine the person who made them. At the time of the testimony, that person--the less-than-reputable convict, Thomas Rose--was sitting in a federal correctional...