USA. v. Griffin, s. 98-4016
| Decision Date | 19 November 1999 |
| Docket Number | Nos. 98-4016,98-4302,s. 98-4016 |
| Citation | 194 F.3d 808 |
| Parties | (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESSE T. GRIFFIN, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 97 CR 156--Rudy Lozano, Judge. [Copyrighted Material Omitted]
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Before RIPPLE, MANION and EVANS, Circuit Judges.
Jesse T. Griffin was indicted on one count of possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. sec. 841(a)(1). His first trial ended in a hung jury. Six weeks later, a second jury convicted him of the charge, and the district court sentenced him to a term of imprisonment of 135 months. On appeal, Mr. Griffin raises eleven issues. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
The relevant events took place on November 12, 1997, in the Delaney Housing Projects in Gary, Indiana. Gary police detectives Azcona, Campbell and Trevino, accompanied by Special Agent Waldron of the Department of Housing and Urban Development ("HUD"), were working together on a narcotics task force called Operation Safe Home, funded by HUD to combat violent crime and drug trafficking in public housing projects. Around 1:00 p.m. that day, they were driving in an unmarked police van on a drug task patrol in the Delaney Projects. Detective Campbell, using binoculars, saw Mr. Griffin approach a parked car, walk up to the driver's side, reach into his right jacket pocket, pull out a plastic bag, and make a hand-to-hand transaction with the driver. Detective Azcona also saw the transaction.
As Mr. Griffin walked away from the car, Detective Trevino turned the van toward him, and Detective Campbell got out. The detective identified himself as a police officer and told Mr. Griffin to stop. Mr. Griffin began running. He fled through a gangway between two buildings in the Projects, over a little hill behind the buildings and onto a parking lot, with Detective Campbell in pursuit. At that point, Mr. Griffin reached into his pocket, pulled out a bag and threw it on the ground. Detective Campbell retrieved the bag as he was running after Mr. Griffin. The officer testified at trial that he observed that the bag contained a number of little pink and green baggies in it.
In the meantime, the officers in the van, going to the aid of their colleague who was pursuing Mr. Griffin, had driven around to block Mr. Griffin's path instead of following the car that Mr. Griffin had approached. While Detective Campbell ran through the parking lot behind Mr. Griffin, Detective Trevino cut him off from the front. Mr. Griffin surrendered. As Detectives Azcona and Trevino arrested and handcuffed him, Detective Campbell arrived with the bag Mr. Griffin had thrown down. A cellular telephone and $97 in cash were found when Mr. Griffin was searched.
Mr. Griffin was charged with one count of possession with intent to distribute more than 5 grams of cocaine base. At trial, two experts from the Indiana State Police Laboratory testified about the bag Mr. Griffin had thrown and the detective had retrieved. The fingerprint examiner who had analyzed the outer bag, which had been twisted and tied, testified that he had developed no latent prints. He testified that plastic bags are poor receptors for latent fingerprints and that, in his experience in examining several hundred plastic bags, identifiable prints were recovered on only twenty-five percent of the bags. The state police chemist who analyzed the 68 small green and pink ziplock baggies inside the bag determined that the rock-like off-white substance found in the green baggies contained 5.08 grams of cocaine base and that the pink baggies contained 2.18 grams of cocaine base.
Also testifying at Mr. Griffin's trial were two street level crack cocaine dealers, Marlon Phillips and Shannon Hemphill. Both were involved in a narcotics distribution conspiracy run by a Michael Mason and both had dealt drugs with Mr. Griffin in various areas, including the Delaney Projects. They testified in cooperation with the Government as required by their plea agreements. Marlon Phillips testified that, from June 1996 to November 1996, he was part of Mason's cocaine distribution organization. His duties included cooking kilograms of cocaine into crack cocaine, selling crack and running drugs to dealers in the Delaney Projects; however, he did not deliver to Mr. Griffin at that time. Phillips testified that he ended his association with Mason in November 1996 and, in February 1997, returned to dealing on the streets of the Delaney Projects. At that time he sold crack with Mr. Griffin and others, selling nickel and dime bags in tiny, colored plastic baggies. When a car stopped in the area, several dealers would run up to the car and display their baggies to the driver. On occasion, Phillips testified, he and Mr. Griffin ran up to the same car. Phillips also told the jury that he would carry 30 to 40 baggies at a time. Because of police activity, in May 1997, Phillips, Mr. Griffin and other sellers moved to another location. Phillips testified that he sold crack in that location until his arrest in July 1997 and that Mr. Griffin also was out there selling every day.
Shannon Hemphill testified that he grew up in the Delaney Projects, where he knew Mr. Griffin. When he started with the Mason organization, he was a drug dealer, selling dime bags of crack on the street for two years. Hemphill testified that he carried 10 to 20 dime bags at a time. Then he began running drugs. He stated that he delivered crack cocaine to Mr. Griffin and to other drug dealers in the Delaney Projects in the summer of 1996. Hemphill testified that he delivered an ounce or 2 of crack once or twice a month to Mr. Griffin until September 1996, when Hemphill went to jail. After his release from jail on November 6, 1996, Hemphill testified, he no longer delivered drugs in the Delaney Projects. However, he stated, he saw Mr. Griffin selling crack in the Projects at that time.
Both witnesses testified that they saw Mr. Griffin selling crack cocaine on previous occasions in the general vicinity of the arrest and, in particular, that he sold crack to people in vehicles. Both crack dealers also testified that the drugs seized from Mr. Griffin looked like crack cocaine. Hemphill described crack as a white or off-white rock-hard substance. He testified that the drugs seized from Mr. Griffin appeared to be crack cocaine packaged like the crack he had dealt. Hemphill called the small, colored bags "seals," and stated that the most seals he had sold to one customer was five dime bags.
In addition to these witnesses, at the second trial the Government called a new witness, an eleven-year veteran of the Drug Enforcement Agency ("DEA"), to testify as an expert witness on drug trafficking. After the court overruled Mr. Griffin's objection to the new witness, DEA Agent Mark Keller testified that a street level dealer sells small amounts of crack cocaine intended for personal use. He stated that, in his opinion, the cocaine seized from Mr. Griffin was meant for distribution. According to Agent Keller, a user would typically have only 1 or 2 such packets of crack cocaine, and a user who could purchase gram quantities of crack would buy the crack in bulk rather than individually packaged, because it was cheaper.
At the second trial, Hemphill and Phillips were presented as Government witnesses after Agent Keller testified. At the close of the Government's case, Mr. Griffin moved for judgment of acquittal. The court denied the motion. Mr. Griffin then rested without presenting any evidence. The jury found Mr. Griffin guilty as charged in the superseding indictment.
After trial, Mr. Griffin filed motions for a new trial and for judgment of acquittal. The district court denied both motions. The court rejected Mr. Griffin's contention that, with no fingerprint evidence found on the bag, the Government did not prove he actually possessed the drugs involved in the offense. After reviewing Officer Campbell's testimony that he retrieved the bag that he saw Mr. Griffin throw down, the court held that the jury could have believed the testimony of the officer.
The court also upheld its admission of the testimony of cooperating witnesses Hemphill and Phillips at trial. According to the court, the evidence had been allowed after a hearing on the matter; in addition, the court gave a limiting instruction regarding this testimony during the trial and a jury instruction at the end of trial. The court noted the confusion about whether Phillips sold drugs as a member of the Mason gang until 1996 or 1997 and whether he witnessed Mr. Griffin selling narcotics in 1996 or 1997. However, the court concluded, even if Phillips witnessed the defendant selling narcotics in 1996 rather than 1997, an action from 1 years before the charged offense fell within a reasonable time period for Rule 404(b) evidence. Thus, the court held, the testimony of Hemphill and Phillips was admissible as evidence of Griffin's specific intent to possess crack. The court also determined that their testimony involved miscommunication, not perjury, and was not incredible. It upheld the verdict and denied the motions.
Both at the close of the Government's case and as a post-trial motion, Mr. Griffin moved for judgment of acquittal under Federal Rule of Criminal Procedure 29 on the ground that the evidence presented against him was insufficient to sustain a conviction for the charged offense.1 The...
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