USA v. Jones

• Decision Date: 12 November 1999
• Docket Number: Nos. 97-1377,s. 97-1377
• Citation: 194 F.3d 1178
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLESS JONES, Defendant - Appellant. & 97-1463
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1178

194 F.3d 1178 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLESS JONES, Defendant - Appellant.

Nos. 97-1377 & 97-1463

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 12, 1999

Appeal from the United States District Court for the District of Colorado (D.C. No. 97-CR-138-S) [Copyrighted Material Omitted] Jill M. Wichlens (Michael G. Katz, Federal Public Defender, with her on the briefs), Assistant Federal Public Defender, Denver, Colorado, for Defendant - Appellant.

John M. Hutchins (Thomas L. Strickland, U.S. Attorney, Linda A. McMahan, Acting U.S. Attorney, Gregory H. Rhodes, Assistant U.S. Attorney, and Sean Connelly, U.S. Department of Justice, with him on the briefs), Assistant U.S. Attorney, Denver, Colorado, for Plaintiff - Appellee.

Before BALDOCK, EBEL and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

These consolidated appeals require us to determine whether a sentencing court must adhere to the penalty range set forth in 21 U.S.C. § 841(b)(1)(C) when an indictment charges a defendant with distributing and possessing with the intent to distribute cocaine base in violation of that and other statutory provisions. In resolving this question, we address whether the Supreme Court's recent decision in Jones v. United States, 119 S. Ct. 1215, 1219 (1999), effects a change in our jurisprudence interpreting § 841(b)(1) as setting forth sentencing factors, not elements of the offense. We conclude that Jones does not require us to alter our interpretation of § 841(b)(1), and any reference to that paragraph in an indictment is surplusage and not binding on the sentencing court. Appellant Carless Jones also challenges his conviction, alleging prosecutorial misconduct and improper admission of hearsay testimony. We affirm the judgment of the district court.

I

In March 1997 police arrested Jones's nephew, Derek Jones ("Derek"), for possession of drug paraphernalia. Derek, who was on probation, agreed to provide evidence of Jones's illegal drug activities in return for the government's promise to drop the drug paraphernalia charges. Because the terms of Derek's probation barred him from engaging in any drug activity--even if supervised by law enforcement authorities--the police recruited his wife, Geneva Jones ("Geneva"), to solicit and execute a controlled drug purchase from Jones. Claiming that Geneva had successfully executed the purchase, the government arrested and subsequently charged Jones in a two-count indictment with distributing and possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2.¹

At trial, Jones sought to demonstrate there was insufficient evidence that Geneva obtained the cocaine base from him, and the distribution charge was based, at most, on an ambiguous conversation between Geneva and some unidentified persons in a Denver building where the controlled purchase supposedly occurred. For example, while cross-examining Officer James Fuller, who was part of a team of officers stationed outside the building, the defense elicited testimony showing that no officer actually witnessed the controlled purchase and that, although Fuller monitored a wiretap that Geneva wore while she was inside the building, he only overheard a female voice "and other voices." (VII R. at 144.)

Seeking to rebut the defense argument that there was no evidence linking Jones to the cocaine base in Geneva's possession the prosecution called to the witness stand another officer, Katherine Evangelista, who testified to seeing Jones arrive at the purchase site sometime after Geneva. According to her testimony, Evangelista also monitored the wire tap. Overruling a defense hearsay objection, the court admitted Evangelista's testimony as to what she overheard, not for the truth of the matter asserted, but rather for the nature of the conversation. She testified that initially she heard female voices without any discussion of drugs but shortly after Jones arrived she heard a male voice and the conversation turned to drugs.

The possession with intent to distribute charge was based on evidence seized during the search of Jones's suspected residence at 1181 Wabash Street. During the search, officers seized incriminating evidence of drug manufacture and distribution in addition to a lease and other documents. At trial, Officer Fuller testified, without objection, that he had seen the lease in the house and that it contained the names of Jones and his alleged girlfriend Kathy Clark. When the prosecution later sought to introduce the lease itself into evidence, however, the judge excluded it because the government had failed to disclose its possession of the document. The judge also noted, in the presence of the jury, that the lease was unsigned. During his closing argument, the prosecutor made reference to the lease, to which defense counsel objected. In response, the court instructed the jury to consider only facts in evidence.

The jury found Jones guilty as charged. At sentencing, the court adopted the findings and recommendations of the presentence report, concluding that Jones actually possessed 165.5 grams of cocaine base and should be sentenced under 21 U.S.C. § 841(b)(1)(A), which provides for a maximum penalty of life imprisonment. The court sentenced Jones to two concurrent terms of thirty years imprisonment.

On appeal, Jones challenges his conviction and sentence. He argues that the prosecution's comment about the lease agreement during closing argument and the court's admission of Officer Evangelista's testimony constitute sufficient grounds for reversal of the conviction.² In the alternative, he argues, we must vacate his sentence because the district court imposed a prison term that exceeded the statutory maximum specified in the indictment, violating his constitutional rights to due process and trial by jury. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II

Where the defense objects to the challenged misconduct, as it did here, our review is de novo, determining first whether the conduct was improper and second, if it was, whether it warrants reversal. See United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996). A prosecutor engages in misconduct when he refers to matters outside the record. See United States v. Sullivan, 919 F.2d 1403, 1425-26 (10th Cir. 1991); United States v. Latimer, 511 F.2d 498, 503 (10th Cir. 1975). On the other hand, persuasive summation of the facts admitted into evidence is the very purpose of closing argument. While the lease agreement was not admitted into evidence, Officer Fuller's testimony that he had seen the lease with the defendant's name on it while searching the home was admitted without objection.³ Specifically, he testified as follows:

Q. As a part of your continuing investigation, have you come up with a lease on [1181 Wabash] at this point?

A. Yes, I have.

Q. Where did you obtain that?

A. From the property and receipts we recovered from the house at 1181 Wabash.

Q. Did you bring that with you today?

A. No sir, I believe it's still in the office.

Q. Is it in my office? Okay. Did you have an opportunity to look at that lease?

A. Yes, sir, I did.

Q. Whose name was on the lease?

A. Carless Jones and Kathy Clark.

(VII R. at 139.) During closing argument, the prosecutor made three references to the lease:

[The name on a car rental slip] [i]s the same person that Officer Fuller says, "I saw the lease in the house I looked at the lease, and there were two names at the top of the lease."

[Officer Fuller] told you he found the lease, and he said the names on the top of that lease were Kathy Clark and Carless Jones for the house at Wabash Street.

I want you to remember, if you can, when Jim Fuller told you he had a lease that he left in my office and he read the names off of that lease and who was on it. I want you to remember what he told you. I want you to remember what where that lease was for. There was no objection made to that. The evidence came in as verbal.

(IX R. at 373, 374, 411-12.) Following the prosecutor's first reference to the lease, the defense objected and the court instructed the jury to disregard any statement in the closing argument not supported by admitted evidence.

The prosecutor was careful to limit his comments on the lease to the statements made by Officer Fuller that were admitted without objection and are not properly challenged on appeal. Because references to admitted evidence during closing argument are clearly proper, we conclude that the prosecutor did not commit misconduct. Furthermore, any perception on the part of the jurors that the prosecutor was referring to the lease and not Officer Fuller's testimony was mitigated by the court's curative instruction. Cf. United States v. Ramirez, 63 F.3d 937, 944-45 (10th Cir. 1995) (holding that prosecutorial misconduct did not warrant reversal because, inter alia, the court instructed the jury to decide the case based on the evidence presented).

III

We review for abuse of discretion the court's decision to admit Officer Evangelista's testimony about the nature of the conversation she monitored during the controlled drug purchase. See United States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994). The erroneous admission of hearsay evidence is harmless under the circumstances of this case unless it had a "substantial influence on the jury's verdict or leaves this court in grave doubt about whether it did." United States v. Hanzlicek, 187 F.3d 1228, 1237 (10th Cir. 1999) (citing United States v. Cass, 127 F.3d 1218, 1225 (10th Cir.1997)). "This court reviews the record as a whole de novo to evaluate whether the error is harmless, examining the context, timing and use of the erroneously admitted evidence at trial and how it compares to properly admitted evidence." Id. (citing United States v. Glass, 128 F.3d 1398, 1403 (10th Cir.1997)).

Even were we...