United States v. Logan

998 F.2d 1025, 302 U.S. App. D.C. 390

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 20, 1993
• Docket: Nos. 91-3338 to 91-3340 and 92-3165
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Dissenting opinion filed by Chief Judge MIKVA.

KAREN LeCRAFT HENDERSON, Circuit. Judge:

Larry Logan was convicted on two counts of distribution of cocaine base (crack). Kelvin Rascoe and Tammy Felton were both convicted of possession with intent to distribute more than 5 grams of cocaine base. Corin Robinson was found guilty of possession with intent to distribute more than 5 grams of cocaine base and using a firearm in relation to a drug trafficking offense. Each now appeals seeking reversal. We affirm the convictions.

I.

On February 27, 1991, a Metropolitan Police Department (MPD) officer, working undercover, purchased $40 of cocaine from a man at 22 14th Street N.E. When the officer knocked on the front door of the house, the man let the officer in and then went to the second floor to get the cocaine. The following day, Officer Condit, also of the MPD, examined the exterior of the house which he described as an “ordinary row-house.” He then obtained a search warrant for the entire premises. On March 8 another undercover officer purchased cocaine from the same man who again went to the second floor to obtain the drugs. One hour later, the police, acting pursuant to the warrant, searched the house. In the basement they found Larry Logan, whom the two undercover officers immediately identified as the seller.

On the second floor of the house, the police discovered Corin Robinson leaving the front bedroom where another person was lying on the bed. Robinson later told police the room was hers. In it, they found nine ziplock bags of crack and five more loose rocks in a black leather jacket hanging in a closet. On the closet’s top shelf, the police also found a loaded .357 Smith and Wesson revolver. In the middle bedroom, the police found Kelvin Rascoe and Tammy Felton. Upon entering the room, one officer saw Felton, who was sitting on a bed, lift up the mattress and place her hand between it and the box spring. Moments later, the police discovered three bags of crack beneath the mattress. They also found two crack pipes, 21 ziplock bags of crack and seven loose rocks strewn about the room.

At trial, Logan called Ricardo Tate to testify that Logan never left the basement the entire day of the search. Vivica Card, another witness for Logan, testified that she arrived at the house thirty minutes before the police and found Logan in the basement. During trial, Rascoe’s counsel, James Holloway, and Robinson’s counsel, Daniel McGuan, engaged in several acrimonious exchanges with the district court. Many, but not all, of the exchanges occurred at the bench or during motions conferences. One exchange resulted in the district court’s holding Holloway in contempt. As a result of the fiietion, Holloway attempted to withdraw as counsel. Both McGuan and Holloway also moved for a mistrial several times. The trial judge refused to allow Holloway to withdraw and denied the mistrial motions. At the close of trial, the district court , charged the jury on the elements of the offense of using or carrying a firearm in relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1).¹ Robinson, who had been charged with the offense, objected to the jury instruction.

II.

A Defense Counsel’s Behavior (Robinson and Rascoe Only)

During the trial, Holloway, counsel for Rascoe, had several disagreements with the district court. As a result of one, the court held Holloway in contempt. We recently upheld the district court’s finding of contempt in In re Holloway, 995 F.2d 1080,1081 (D.C.Cir.1993). Although he was not held in contempt, McGuan, counsel for Robinson, also experienced friction with the court.

At the suppression hearing, Holloway asked Officer Condit whether the police discovered that the house was a rooming house when they searched it. The court sustained the government’s objection but Holloway immediately asked it again. The court then cautioned Holloway not to repeat a question on which an objection had been sustained. 9/26 Tr. at 75-76. The next morning, Holloway filed a motion to withdraw as counsel. In it, he noted his belief that the hostility between himself and the district court stemmed from events in a trial immediately preceding Rascoe’s in which the court twice threatened Holloway with contempt for his behavior. The district court denied Holloway’s motion.

At trial, several incidents occurred as set forth in detail in In re Holloway. Holloway, 995 F.2d at 1082-86. One of the incidents resulted in Holloway’s being found in contempt. Id. at 1082-84. Another episode involved Robinson’s counsel, McGuan. At one point during cross-examination of an officer, McGuan attempted to determine whether the officer had set up his “raid kit” before drugs were seized from Robinson’s bedroom. 10/2 Tr. at 26. The judge interrupted when McGuan’s questions appeared to confuse the witness. When the judge made a suggestion in order to clarify the confusion, McGuan began to argue with her and with the witness in front of the jury. Id. at 27-30. After being instructed to proceed, McGuan then asked the witness, “How taE are you?” Id. at 30. The court ruled the question irrelevant, to which McGuan replied “not irrelevant.” Id. The court then instructed McGuan to approach the bench and told him that “[t]his man’s height is irrelevant. It was not brought on direct examination____ Don’t you ever play games with me.” Id. McGuan moved for a mistrial, addressing the court as “Your Honor, poor soul.” Id. at 31.

Although these are not the only incidents to which the appeEants direct our attention, they Elustrate the nature of the exchanges between the district court and defense counsel. On appeal, Rascoe argues that the exchanges created the appearance that the court was not acting impartiaEy and made it impossible for HoEoway to represent him zealously. Accordingly, Rascoe maintains that the exchanges prejudiced the jury and denied him a fair trial.² Robinson raises an identical argument based on the exchanges between the district court and McGuan.

A judge must be a “disinterested and objective participant in the proceedings.” ³ Thus, a trial judge must not create an appearance of partiality by supporting one of the parties nor may a judge “undermine the effective functioning of counsel through repeated interruption of the examination of witnesses.” United States v. Norris, 873 F.2d 1519, 1526 (D.C.Cir.1989). Nonetheless, a trial judge has a “duty to prevent improprieties during the trial,” United States v. Warner, 955 F.2d 441, 449 (6th Cir.1992), and may rebuke counsel for improper behavior. United States v. Jackson, 627 F.2d 1198, 1206 (D.C.Cir.1980). Thus, a judge may question witnesses to clarify confusing questions and otherwise actively manage the trial. See Norris, 873 F.2d at 1526; United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988) (judge is not “mere umpire” but instead “governor of the trial” charged with “assuring its proper conduct”).

In reviewing a claim of judicial bias, we need not determine “whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid.” United States v. Pisani, 773 F.2d 397, 402 (2d Cir.1985). Rather, we must determine “whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to perfect, trial.” Id.

A close reading of the trial transcript manifests that the district court was attempting to control difficult counsel who repeatedly flouted her orders. Her attempts to constrain both Holloway and MeGuan were appropriate. In fact, at several points defense counsel’s behavior invited upbraiding. To ensure a fair trial, the trial judge had a duty to require all counsel, including Holloway and MeGuan, to abide by the orders she issued and to adhere to the rules of evidence and procedure. If she had taken no steps to correct their behavior, both the prosecution and the other defendants could have been placed at an unfair disadvantage. Allowing Holloway to examine the prosecution about the crack pipes, for example, could have prejudiced Felton’s defense. It was Felton’s counsel, not the prosecution, who initially objected to the questioning about the pipes.

Furthermore, we do not think the episodes between the district court and the two lawyers prejudiced the jury. The judge’s instructions to Holloway and MeGuan occurred in the main during bench conferences, during motions outside the jury’s presence or during the suppression hearing. Thus, the jury never heard many of these exchanges. When the district court chastised Holloway for referring to the crack pipes, for example, she did so during a bench conference. Likewise, she denied Holloway’s initial motion to withdraw as counsel during a motions hearing. Her finding of contempt occurred at the bench and thus out of the hearing of the jury. The kinds of exchanges the jury did hear involved sustaining of objections, denying of motions and ordering the rephrasing of questions to witnesses. Her instructions and comments were directed at MeGuan and Holloway, not at the defendants.

Moreover, the district court explained her exchanges with the lawyers to the jury. In her charge, she stated that her “actions are not to be taken by you as any indication of my opinion as to how you should determine the issues of fact____ If you believe that I have expressed or intimated any opinion as to the facts, not only should you disregard it, I instruct you to totally disregard it.” 10/11 Tr. at 19.

We turn now to Rascoe’s argument that the conflict between Holloway and the district court intimidated Holloway and thus undermined his ability to provide Rascoe with zealous representation. Despite Holloway’s assertions to the contrary, we find that his exchanges with the district court did not dampen his zealous (perhaps even overly so) representation of Rascoe. The record illustrates that Holloway repeatedly and aggressively pursued his client’s cause. In fact, even after being adjudged in contempt, Holloway pressed a motion for mistrial. And he found himself in at least one more acerbic exchange with Judge Johnson. Moreover, both he and MeGuan attempted to make the confrontations with the district court an issue in their closings, thus seeking to turn whatever discord the jury noticed between the judge and them to their clients’ advantage. We conclude, therefore, that Holloway’s and McGuan’s difficulties with the judge did not affect their representation of their clients so as to deny them a fair trial.

B. The Section 921(c)(1) Jury Charge (Robinson Only)

An individual who “uses or carries a firearm” “during and in relation to a drug trafficking crime” violates 18 U.S.C. § 924(c)(1). Based on the police’s discovery of a loaded handgun from the top shelf of Robinson’s closet and crack cocaine from a leather jacket hanging in her closet, the government charged Robinson with violating section 924(c)(1). At the close of trial, the district court instructed the jury on the elements of the offense as follows:

The essential elements of this offense, each of which the government must prove beyond a reasonable doubt, are two in number. Number one, Ms. [Robinson]⁴ knowingly and intentionally carried or used a firearm. Number two, Ms. [Robinson] did so during and in relation to a drug trafficking crime as charged in count five of this indictment.

To find that Ms. [Robinson] carried or used the fire-arm the government must prove that Ms. [Robinson] actually or constructively possessed the firearm. The government does not have to show that Ms. [Robinson] actively employed the firearm in any manner. To satisfy the first element of this offense, it is sufficient if you find that at a given time Ms. [Robinson] had both the power and the intention to exercise dominion and control over the firearm....

The term ‘during’ means at some point in the course of the matter, regardless of how short a period of time. You are further instructed that possession with intent to distribute is a drug trafficking crime.

10/11 Tr. at 48-49.

On appeal, Robinson maintains that the jury instruction confused constructive possession with “using or carrying” and that the emphasis on possession improperly overshadowed all other section 924(c)(1) elements. The government contends that we must review for plain error and that, in any case, the district court’s instructions explained the key elements of the offense to the jury.

To preserve an objection to jury instructions, a defendant must raise the specific objection before the trial court. United States v. Pryce, 938 F.2d 1343,1350 (D.C.Cir.1991). Where a defendant raises only vague objections below that are “too general to alert the trial court to his current claim, our inquiry is limited to determining whether the instructions amounted to ‘plain error.’ ” Id.; see also Fed.R.Crim.P. 52(b). Robinson’s trial counsel objected to the proposed jury instruction at trial, but he did not argue that the instruction failed to describe correctly the elements of the offense. Counsel first told the court that the instruction was not “a fair statement of the law.” 10/9 Tr. at 47. He then urged the court to strike any language regarding use and any instruction implying that Robinson had actual possession of the gun. Id. at 47-48. Accordingly, he told the court, “the government’s theory on the weapon, as it pertains to Ms. [Robinson] or Mr. McFadden is merely one of constructive possession. There is no evidence of actual possession other than constructive possession.” Id. at 48. Counsel then sought a different instruction on possession.⁵ Finally, counsel objected to the definition of a firearm contained in the instructions and to the statement that possession with intent to distribute is a drug trafficking offense. Id. at 49. Although counsel clearly indicated his dissatisfaction with the jury instruction, he did not make the claim he makes here, that is, the instruction improperly equates constructive possession with using or carrying a firearm. In addition, the trial judge asked counsel to submit a proposed jury instruction of his own. Robinson’s counsel did not submit one. We thus review for plain error only.

Constructive possession, standing alone, does not violate section 924(c)(1). “A person can possess a gun without either ‘using’ it or using it ‘during and in relation to’ a given crime.” United States v. Long, 905 F.2d 1572, 1578 (D.C.Cir.1990). The government must also prove “a connection between the firearm and the underlying offense. This connection is at the heart of the statute.” United States v. Jefferson, 974 F.2d 201, 206 (D.C.Cir.1992). The district court’s instruction accurately describes both notions. The court told the jury that it must find both (1) that “Ms. [Robinson] knowingly and intentionally used or carried a firearm” and (2) that “Ms. [Robinson] did so during and in relation to a drug trafficking crime. ” 10/11 Tr. at 48 (emphasis added). The second part of the instruction conveyed to the jury that the gun must have “facilitated or had a role in the drug trafficking offense.” United States v. Morris, 977 F.2d 617, 621 (D.C.Cir.1992).

Moreover, the district court did not err in telling the jury the government “must prove that Ms. [Robinson] actually or constructively possessed the firearm.” 10/11 Tr. at 48. Although not sufficient by itself to sustain a conviction, possession is an essential element of the offense. “Generally speaking, it would be difficult to ‘use’ a gun without exercising dominion and control over it.” Morris, 977 F.2d at 621.

Similarly, we find no problem with the district court's statement that “[t]he government does not need to show that Ms. [Robinson] actively employed the firearm in any manner.” We have previously enumerated a number of factors which, under appropriate circumstances, might be sufficient to establish the necessary connection between the gun and the drug trafficking offense. Id. at 621-22. The element of “use” in section 924(c)(1), then, does not require the defendant to actually fire or brandish the firearm. Id. at 621; see also Smith v. United States, — U.S.-,-, 113 S.Ct. 2050, 2053-54, 124 L.Ed.2d 138 (1993).

Next, we consider the district court’s instruction that “the first element of the offense” could be satisfied if “Ms. [Robinson] had both the power and the intention to exercise dominion and control over the firearm.” 10/11 Tr. at 48. The district court then defined a second element of the crime which it described as the requirement that Robinson used the firearm “during and in relation to a drug trafficking offense.” Id. The second element, then, conveyed to the jury that the firearm must be connected to the drug offense. Because possession would not have satisfied the second element, which the district court characterized as “essential,” its instruction cannot be read to have suggested that possession alone sufficed to violate section 924(c)(1). Id.

Finally, we consider Robinson’s argument that the trial judge’s emphasis on the possession element misled the jury. The instruction perhaps could have been more balanced had the district court enumerated the factors necessary to establish the required connection between the gun and the underlying drug trafficking offense. But the district court was not required to delineate further the elements of section 924(c)(1). In context, the court told the jury that it had to find possession plus a “second element.” 10/11 Tr. at 48. The second element consisted of use “during and in relation to a drug trafficking crime.” Id. This instruction points up the necessary connection between the firearm and the drug trafficking offense. Accordingly, we conclude that the district court’s section 924(c)(1) charge was adequate.

C. The Search Warrant

Because the search warrant failed to indicate the house was a boarding house, the appellants claim the police lacked probable cause to search the second floor bedrooms. This claim has no merit. Probable cause to obtain a warrant is judged from the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Although a warrant must describe with particularity “the place to be searched,” U.S. Const, amend. IV, “we must judge the constitutionality of [the officers’] conduct in light of the information available to them at the time they acted.” Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987).

The officers had probable cause to believe that drugs were located on the second floor of the house. Before seeking the warrant, an undercover officer gained entrance to the first floor and purchased cocaine from a- man who went to the second floor to retrieve the drugs. Moreover, the officers had no reason to suspect that the house was not a single family residence when they applied for the warrant. Officer Condit visited the house before applying for the warrant and noticed nothing on the exterior to suggest that it was not a single family residence. There were no signs advertising rooms for rent, no rows of mailboxes, no multiple listing of names at the front door. 9/24 Tr. at 7-9. See United States v. Dorsey, 591 F.2d 922, 930 (D.C.Cir.1978) (“dearth of external indicia of multiple occupancy undercuts appellants’ claims that the police knew or should have known that the ... dwelling served as a rooming house”). The officers reasonably believed that drugs were located on the second floor of the house and therefore probable cause supported their search.

D. Sufficiency of the Evidence (Felton Only)

Appellant Felton alleges that the government produced insufficient evidence to prove she placed three ziplock bags of cocaine between the mattress and the box spring of the bed on which she was sitting when police entered the room. In reviewing a conviction for sufficiency of the evidence, we are limited to determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Poston, 902 F.2d 90, 94 (D.C.Cir.1990). The government may prove constructive possession of a drug by showing that a defendant “was knowingly in a position or had the right to exercise dominion and control over it.” United States v. Durant, 648 F.2d 747, 751 (D.C.Cir.1981) (quotation omitted).

The government produced sufficient evidence. At trial, one officer testified that, upon entering the room, he saw Felton “getting up off the mattress, picking up the mattress and putting something underneath.” 9/30 Tr. at 84. The police discovered three bags of crack between the mattress and the springs. Another officer testified that he saw Felton put something under the mattress. Felton also testified that she and Rascoe lived in the bedroom. Cumulatively, this is strong circumstantial evidence of possession. Cf. United States v. Morris, 977 F.2d 617, 620 (D.C.Cir.1992).

E. Impeachment of Defense Witness (Logan Only)

Under Federal Rule of Evidence 609, a witness may be impeached during cross examination with evidence of a conviction for (1) a crime punishable by death or imprisonment in excess of one year or (2) a crime involving dishonesty or false statement, regardless of punishment. Fed.R.Evid. 609(a). Logan’s witness, Ricardo Tate, testified that he and Logan never left the basement throughout the day of the search. On cross examination, the government impeached Tate with evidence that he had previously been convicted of taking property without a right and distribution of marijuana and PCP.

Tate’s crimes were misdemeanors punishable by imprisonment for one year or less. Moreover, neither taking property without a right nor distribution of drugs constitutes a crime of dishonesty or false statement. See United States v. Lewis, 626 F.2d 940, 946 (D.C.Cir.1980) (heroin distribution does not involve dishonesty or false statement); United States v. Fearwell, 595 F.2d 771 (D.C.Cir.1978) (petit larceny is crime of stealth, not deceit); United States v. Scisney, 885 F.2d 325, 326 (6th Cir.1989) (shoplifting is not crime of dishonesty or false statement).

Nonetheless, the error was harmless for several reasons. First, the government used the convictions to impeach Tate, not Logan. Thus, the error here was less prejudicial than an improper impeachment of the defendant himself would have been. See United States v. Huddleston, 811 F.2d 974, 978 (6th Cir.1987) (“Any prejudice to the defendant is normally greater where the defendant’s own character is being attacked.”). Second, the prosecution did not emphasize the convictions, avoiding any reference to them in closing argument. Third, the court immediately instructed the jury that the convictions could be used only to assess Tate’s credibility. Fourth, Vivica Card, another defense witness, confirmed at least part of Tate’s story. Finally, the government had strong evidence against Logan apart from the ill-advised impeachment of his witness. Logan lived at the house. He was there during the police raid. Two undercover police officers identified Logan as the man who had sold them cocaine at the house on February 27 and March 8.

III.

In summary, we conclude that the episodes between the trial judge and defense counsel Holloway and McGuan did not deprive appellants Rascoe and Robinson of a fair trial. In addition, we conclude that the district court’s jury charge on the section 924(c)(1) offense sufficed. The other issues the appellants raise are without merit. Accordingly, we affirm the convictions of appellants Rascoe, Robinson, Logan and Felton.

Affirmed.

1 . Section 924(c)(1) provides:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.

18 U.S.C. § 924(c)(1).

2 . In his brief, Rascoe relied on Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984),. asserting that counsel’s breach of the duty of loyalty to his client presumptively prejudices the trial. Nonetheless, at oral argument, Rascoe’s counsel declared that Rascoe did not raise an ineffective assistance of counsel claim. Accordingly, we consider Rascoe's arguments pertinent only to his claim that he was denied a fair trial.

3 .United States v. Norris, 873 F.2d 1519, 1526 (D.C.Cir.1989); United States v. Barbour, 420 F.2d 1319, 1321 (D.C.Cir.1969); Billeci v. United States, 184 F.2d 394, 403 (D.C.Cir.1950).

4 . The district court referred to Robinson by her alias, Corin Jenkins.

5 . Counsel sought the instruction on possession included in the Criminal Jury Instructions District of Columbia manual (Red Book). 10/9 Tr. at 48. The Red Book Instruction 3.11 contains no discussion of a section 924(c)(1) offense.