USA. v. Williams, 99-3058

• Citation: 212 F.3d 1305
• Decision Date: 30 May 2000
• Docket Number: No. 99-3058,99-3058
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. John Williams, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1305

212 F.3d 1305 (D.C. Cir. 2000)

United States of America, Appellee v. John Williams, Appellant

No. 99-3058

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2000

Decided May 30, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cr00288-01)

Gabriel R. Sanz-Rexach argued the cause for the appellant. John P. Dean was on brief for the appellant.

Sharon A. Sprague, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney, and John R. Fisher, Assistant United States Attorney, were on brief for the appellee.

Before: Silberman, Henderson and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Dissenting opinion filed by Circuit Judge Silberman.

Karen LeCraft Henderson, Circuit Judge:

John Williams seeks reversal of his conviction of possession of a firearm and ammunition by a felon. Williams argues that the district court made erroneous evidentiary rulings that cannot be deemed harmless. He challenges the admission of police officers' testimony regarding the contents of a police radio call during the events leading to his arrest, the general danger of traffic stops and the assertion that drug users commonly carry weapons. It is the admission of the latter, followed by the trial court's denying Williams an opportunity to cross-examine the witness and the government's mention of the testimony in closing argument, which concerns us here.¹

I.

Between 1:30 and 1:45 a.m. on August 1, 1998, Officers Antonio Duncan and David Reid of the Metropolitan Police Department, patrolling in the southeast region of the District of Columbia in a police cruiser, stopped the car in which Williams was a passenger for failing to stop completely at a stop sign and then straddling a double-yellow line. As soon as the officers left their cruiser, Williams got out of the passenger side of the car "in a crouched position." Transcript (Tr.) 3/3/99 at 39. The officers testified that Williams immediately reached for his waistband and that he was holding something "of some girth[,] ... an object of some weight," id. at 166, which they believed could have been a concealed weapon. See id. at 158-59, 166-67. Ignoring commands to remain in the car and, then, to show his hands, Williams maneuvered around the open door and began running. Duncan chased him while Reid detained the driver, who had stayed in the car.²

Running with his hands at his waistband, Williams began to cross a footbridge. He collided into the metal railing and slowed down a bit. The collision caused a metal clanking noise. Duncan suspected that whatever object Williams appeared to have been carrying caused the clanking noise and that Williams may have discarded it from the bridge. Continuing his pursuit, Duncan did not hear the sound of an object striking the concrete "creekbed" below. He made a radio call requesting backup wherein he described the suspect and his location and mentioned the "possibility" that the suspect had a gun.³ Tr. 3/3/99 at 47. Shortly thereafter, Duncan apprehended and arrested Williams with the help of an unidentified civilian.

Officer Carter Adams responded to the radio call and, at Duncan's direction, searched portions of the creekbed.Williams had told Duncan, when returning to the spot where he hit the footbridge railing, first, that Duncan had not seen him throw anything and "had no case" and, then, that he had thrown his "stash" or his "works," id. at 50, terms commonly used to refer to drugs and drug paraphernalia, respectively.Adams found no drugs or drug paraphernalia but did find a handgun. The creekbed contained "no more than half an inch" of water. Tr. 3/4/99 at 5. Analysis of the gun revealed neither fingerprints nor rust. The safety switch on the side of the gun facing the ground was bent and a piece on the bottom of the gun was cracked.

Williams's first trial on one count of unlawful possession of a firearm and ammunition by a felon, a violation of 18 U.S.C. S 922(g)(1), resulted in a mistrial when the jury failed to reach a unanimous verdict. After Williams withdrew a guilty plea to a lesser offense, a second trial commenced. The officers' testimony at the retrial focused on their suspicion that Williams had a gun because of his movements when he got out of the car and his collision with the bridge railing. The officers conceded, however, that they did not see an object in Williams's hands nor see him actually throw anything. Defense counsel offered other explanations for the officers' observations and for the discovery of the gun in the creekbed. The government had established Williams was a drug user⁴ so defense counsel raised the possibility that Williams could have discarded drugs or drug paraphernalia, see Tr. 3/3/99 at 109-11, and suggested that the officers did not conduct an adequate search to rule out the possibility, see id. at 140-42. Counsel also elicited testimony that violence was common in the area and recovery of a gun in the area was not unprecedented. See id. at 80.

After a lengthy redirect examination of Duncan, the prosecutor ended the questioning with the following exchange:

Q: Now you were asked a lot of questions about violent crimes in that area [where the chase and subsequent arrest occurred] and about guns being discarded, is that right?

A: Correct.

Q: Okay. And you know that area pretty well?

A: Yes

Q: In your experience as a patrol officer, is it common for people who use drugs or sell drugs to carry weapons for protection?

A: Yes. Tr. 3/3/99 at 160-61 (emphasis added). The court then excused Duncan from the witness stand and defense counsel approached the bench, explaining that she would have objected to the last question but did not have the chance because "[t]hat answer came out so quickly." Id. at 161. The trial judge said she would have allowed the exchange in any event and then denied counsel's request for a "very brief re-cross." Id. The prosecutor reminded the jury of Duncan's testimony during her reply closing argument and in the following context:

Counsel also raised an issue about violent crime in the area to explain, possibly, how this gun--some other way that this gun could have ended up in that creek....[C]ounsel ask [sic] a number of questions about violent crime and about people discarding weapons in the area[,]and you will recall those type [sic] of questions. Well, remember that the officer also testified that it is not uncommon for drug users or drug sellers to carry weapons for protection as well.

Ladies and gentlemen, there is no evidence that this weapon was tied to any violent crime. And in fact, the evidence is to the contrary because had this gun been involved in a violent crime, where somebody wanted to get rid of it, you would expect that it wouldn't be fully loaded.... If you recall, this was a fully loaded weapon with one in the chamber.... In addition, it's an expensive weapon....

Tr. 3/4/99 at 154-55.

Williams was convicted and sentenced to 180 months in prison, followed by two years of supervised release. A special assessment of $100 was also imposed.

II.

We review a trial judge's evidentiary rulings for abuse of discretion. See United States v. Smart, 98 F.3d 1379, 1386 (D.C. Cir. 1996) (citing United States v. Salamanca, 990 F.2d 629, 637 (D.C. Cir.), cert. denied, 510 U.S. 928 (1993)). A "district court's decision to admit evidence ... is entitled to 'much deference' on review," United States v. Ramsey, 165 F.3d 980, 984 n.3 (D.C. Cir.) (quoting United States v. Lewis, 693 F.2d 189, 193 (D.C. Cir. 1982)), cert. denied, 120 S. Ct. 223 (1999), but if it is found erroneous, the burden is on the government to prove the error was harmless. See United States v. Lampkin, 159 F.3d 607, 614 (D.C. Cir. 1998), cert. denied, 526 U.S. 1140 (1999); Smart, 98 F.3d at 1390 ("At all times, the burden of proving that an error was not prejudicial rests on the government.") (citing United States v. Olano, 507 U.S. 725, 734 (1993)).

A.

Williams challenges the admission of Duncan's affirmative reply on redirect examination to the following question: "In your experience as a patrol officer, is it common for people who use drugs or sell drugs to carry weapons for protection?" Tr. 3/3/99 at 160-61. Although the inquiry regarding Duncan's experience with drug dealers commonly carrying weapons for protection raises no eyebrows, see, e.g., United States v. Conyers, 118 F.3d 755, 757 (D.C. Cir. 1997) (noting in appeal of drug trafficking conviction "those who transport drugs often carry (and all too often use) a firearm"), we cannot say the same regarding drug users.⁵ Finding the link between drug users and guns tenuous, we look to the foundation of Duncan's opinion testimony.

The prosecutor framed the question to Duncan as "in [his] experience as a patrol officer." Duncan had testified earlier that he had made gun charge arrests about "six or seven times." Tr. 3/3/99 at 148. He added that he had "recovered more than one weapon on a person" and then revised his previous estimate to "anywhere from ten to eleven, just a general amount." Id. After hearing defense counsel's late objection to Duncan's response and commenting that she would have overruled the objection had it been timely made, the trial judge denied defense counsel the opportunity to recross-examine Duncan.

The foundation of Duncan's opinion linking drug users and possession of weapons is anything but firm. Fewer than one dozen arrests involving possession of a firearm is not sufficient grounding to qualify him as an expert under Rule 702 of the Federal Rules of Evidence (FRE), particularly without evidence establishing that any of those arrests involved a drug user. If, instead, we view his testimony as having been admitted under Rule 701,⁶ FRE, we question whether Duncan's answer was rationally based on his perceptions. He did not establish a factual...