USA. v. Sumlin, No. 00-3056

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSentelle
Citation271 F.3d 274
Decision Date09 November 2001
Docket NumberNo. 00-3056
Parties(D.C. Cir. 2001) United States of America, Appellee v. Pernell J. Sumlin, Appellant

Page 274

271 F.3d 274 (D.C. Cir. 2001)
United States of America, Appellee
v.
Pernell J. Sumlin, Appellant
No. 00-3056
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2001
Decided November 9, 2001

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Appeal from the United States District Court for the District of Columbia (No. 99cr00164-01)

Robert S. Becker, appointed by the court, argued the cause and filed the brief for appellant.

Elana Tyrangiel, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, John R. Fisher, Roy W. McLeese III and John Crabb Jr., Assistant U.S. Attorneys.

Before: Sentelle, Randolph and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge:

Pernell Sumlin was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine base

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in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(ii); unlawful distribution of 5 grams or more of cocaine base in violation of 21 U.S.C.841(a)(1)(B)(iii); and, unlawful distribution of 500 grams or more of cocaine and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii) and 18 U.S.C.2. Sumlin appeals, arguing that the Government impermissibly introduced evidence relating to his "prior bad acts" and improperly bolstered the credibility of its paid informant. Sumlin also argues that his convictions should be overturned because the evidence presented at trial established entrapment as a matter of law. Finding no merit to Sumlin's arguments, we affirm his convictions.

I. Facts

The parties agree that appellant Sumlin and Kevin Goode first met in the spring of 1998 when they both worked in the same downtown D.C. office building. Goode, having pleaded guilty to a drug offense in 1997, was cooperating with the DEA on various drug investigations. Beyond that, the parties' versions of the events leading to Sumlin's arrest differ somewhat. According to the government, Sumlin told Goode in mid-1998 that he was involved in the drug trade and that he had a drug connection in Indiana, one "Mike Turio," who supplied him with cocaine. Also according to the government, Sumlin told Goode that he had "purchased a kilo" of cocaine, and had mentioned his drug source to Goode on at least two subsequent occasions.

In the spring of 1999, with the assistance of Goode, the DEA began investigating Sumlin and his purported connection in Indiana. In late March or early April of that year, the DEA directed Goode to contact Sumlin. Goode did so, and on April 2, 1999, Goode and Sumlin made arrangements for Sumlin to sell 62 grams of cocaine to Goode. That night, Sumlin, Goode, and undercover law enforcement officer Percel Alston (posing as Goode's cousin) met in a Maryland restaurant to complete the transaction. At the time of the meeting, however, Sumlin indicated that the cocaine had not yet been converted into crack and that he needed to meet with his "source." Sumlin left the restaurant and did not return. However, in a conversation with Goode the following day, the two made arrangements to complete the transaction. Thus, on April 6, 1999, Sumlin sold 62 grams of crack cocaine to Goode and Alston for $2100. During this drug sale, Sumlin discussed "Mike" and his own travel to Indiana. After the sale was completed, Sumlin told Alston and Goode that he had an additional kilogram of cocaine to sell and that Goode and Alston should contact him if they needed any additional cocaine. Goode and appellant subsequently arranged a deal for Sumlin to sell five kilograms of cocaine for $125,000. Sumlin asked an acquaintance, Daniel Clayton, to supply the cocaine for the upcoming sale. Clayton provided four kilograms of cocaine to Sumlin, who then met with Goode on April 15, 1999. After giving the cocaine to Goode, Sumlin was arrested.

Prior to trial and over Sumlin's objection, the court ruled that the government could introduce, under Federal Rule of Evidence 404(b), evidence that Sumlin pleaded guilty to drug trafficking in 1989, and had engaged in uncharged drug transactions in 1998. This latter evidence, according to the government's proffer, would include testimony from Clayton that he and Sumlin had engaged in prior cocaine transactions together in amounts ranging from nine ounces to a kilogram, as well as evidence from Goode regarding Sumlin's statements that he was involved in drug trafficking. The government also introduced

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at trial--without objection--statements from Sumlin regarding his experience as a drug dealer; testimony from Goode elaborating and interpreting Sumlin's statements regarding his Indiana contact, Mike; and, testimony from DEA Agent Michael Dukovich regarding the DEA's investigation into a possible drug source in Indiana. The government also introduced, again without objection, testimony from DEA Agent Albert Perry regarding Goode's record for assisting the DEA in other drug investigations.

Sumlin testified in his own defense that he was an unwilling participant in the drug sales and that Goode called him between 40 and 50 times before he agreed to participate in the transactions at all. Sumlin also testified that he only learned of Clayton and Clayton's drug connections through a friend, that he lied to Goode and Alston about his drug connections during the April 6 drug deal, and that he acted like a drug dealer for "safety reasons." Sumlin further testified that he was unfamiliar with the drug jargon used by Goode and Alston, and produced a witness (his wife) who testified that he lacked the overt signs of participation in the drug trade such as expensive cars and clothing. Finally, Sumlin testified that he made up the story of "Mike," his alleged drug source.

On appeal, Sumlin challenges his convictions on grounds the trial court erred in allowing testimony from Goode and Agent Dukovich regarding "Mike" and the DEA's investigation into an Indiana drug source, as well as testimony from Agent Perry regarding Goode's record for assisting the DEA. Sumlin also argues that he was entrapped, as no reasonable jury could have concluded that he was predisposed to commit the crimes for which he was convicted. We address, and dismiss, each of his arguments in turn.

II. Analysis

A. Rule 404(b) Evidence

Prior to trial, the government filed notice of its intent to present, under Fed. R. Evid. 404(b), "other crimes evidence." See Government's Notice of Intent to Introduce Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b), United States v. Sumlin, Cr. No. 99-164 (RWR) (D.D.C. Jan. 5, 2000). "Other crimes evidence" is admissible under Rule 404(b) if it is relevant, probative of a material issue other than the defendant's character, and more probative than prejudicial. See United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000); see also United States v. Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000). In addition, such evidence is admissible only if all of the evidence at trial is "sufficient to support a jury finding that the defendant committed the other crime or act." Bowie, 232 F.3d at 930 (citing Huddleston v. United States, 485 U.S. 681, 689-90 (1988)).

The Government intended to introduce evidence of Sumlin's past guilty plea to drug distribution in 1989, and his uncharged participation in drug trafficking during 1998. At a hearing before the district court, the Government proffered the testimony of Clayton, who would testify about his direct participation with Sumlin in past drug transactions, and Kevin Goode, who would testify about comments Sumlin made indicating his involvement in the drug trade. Over Sumlin's objection, the district court ruled in favor of allowing the testimony, subject to Sumlin renewing his objection at trial. At trial, the government introduced its proffered evidence, but Sumlin did not renew his objection.

Sumlin now argues that the district court abused its discretion and committed prejudicial error in admitting certain "other

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crimes evidence" through the testimony of Goode and DEA Agent Mike Dukovich. Specifically, Sumlin argues that in granting the Government's motion to introduce testimony under Fed. R. Evid. 404(b), the district court ruled only that the Government could introduce evidence concerning 1) Sumlin's guilty plea to crack cocaine distribution in 1989, and 2) evidence that Sumlin received and sold crack cocaine in 1998. Sumlin asserts that the district court wrongly allowed testimony from Goode concerning Sumlin's alleged association with "Mike Turio," and testimony from Agent Dukovich concerning an open investigation in Indiana as to a possible source of drugs. Because the Government's proffer at the hearing made no mention of "Mike Turio" or of Sumlin's alleged connection to Indiana, Sumlin argues that it was error for the district court to admit this evidence at trial. Sumlin contends that it was this particular evidence that caused a jury to conclude that he was engaged in drug trafficking. Therefore, he claims he was prejudiced by its admission.

The Government, however, argues that although Sumlin objected to its proffered evidence at the hearing before the district court, he did not object to its introduction at trial. Accordingly, the proper standard of review is one of plain error, not abuse of discretion. The Government continues that even if it was error for the district court to admit the testimony, Sumlin did not suffer any prejudice from the admission of the testimony because additional, unobjected-to evidence was admitted such that a jury could have concluded that he participated in drug trafficking.

We agree with the Government that even if it was error for the district court to admit the challenged testimony, Sumlin is not...

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14 practice notes
  • U.S. v. Andrews, No. 07-3024.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 15, 2008
    ...error by the district court in using the 2006 edition of the Guidelines was neither "`clear'" nor "`obvious,'" United States v. Sumlin, 271 F.3d 274, 281 (D.C.Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)),4 the court need not opine tha......
  • United States v. Moore, No. 05-3050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 29, 2011
    ...Smith, 640 F.3d at 366. Accordingly, the error did not "affect[] the outcome of the district court proceeding[]," United States v. Sumlin, 271 F.3d 274, 281 (D.C. Cir. 2001) (citation and quotation marks omitted), and hence appellants are not entitled to reversal of their convictions becaus......
  • U.S. v. Moore, Nos. 05–3050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 29, 2011
    ...640 F.3d at 366. Accordingly, the error did not “affect[ ] the outcome of the district court proceeding [ ],” United States v. Sumlin, 271 F.3d 274, 281 (D.C.Cir.2001) (citation and quotation marks omitted), and hence appellants are not entitled to reversal of their convictions because of i......
  • Am. Bankers Ass'n v. Nat'l Credit Union Admin., No. 18-5154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 20, 2019
    ...the rule under challenge if the lower-court decision were vacated. Id. at 289 & n.11, 102 S.Ct. 1070 ; see also Am. Bankers Ass’n , 271 F.3d at 274. The NCUA’s submission and representations evince such an intention here, and the Association – which bears the "heavy burden" of proving mootn......
  • Request a trial to view additional results
14 cases
  • U.S. v. Andrews, No. 07-3024.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 15, 2008
    ...error by the district court in using the 2006 edition of the Guidelines was neither "`clear'" nor "`obvious,'" United States v. Sumlin, 271 F.3d 274, 281 (D.C.Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)),4 the court need not opine tha......
  • United States v. Moore, No. 05-3050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 29, 2011
    ...Smith, 640 F.3d at 366. Accordingly, the error did not "affect[] the outcome of the district court proceeding[]," United States v. Sumlin, 271 F.3d 274, 281 (D.C. Cir. 2001) (citation and quotation marks omitted), and hence appellants are not entitled to reversal of their convictions becaus......
  • U.S. v. Moore, Nos. 05–3050
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 29, 2011
    ...640 F.3d at 366. Accordingly, the error did not “affect[ ] the outcome of the district court proceeding [ ],” United States v. Sumlin, 271 F.3d 274, 281 (D.C.Cir.2001) (citation and quotation marks omitted), and hence appellants are not entitled to reversal of their convictions because of i......
  • Am. Bankers Ass'n v. Nat'l Credit Union Admin., No. 18-5154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 20, 2019
    ...the rule under challenge if the lower-court decision were vacated. Id. at 289 & n.11, 102 S.Ct. 1070 ; see also Am. Bankers Ass’n , 271 F.3d at 274. The NCUA’s submission and representations evince such an intention here, and the Association – which bears the "heavy burden" of proving mootn......
  • Request a trial to view additional results

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