United States v. Sumlin, Pernell

271 F.3d 274, 350 U.S. App. D.C. 13, 2001 U.S. App. LEXIS 24174, 2001 WL 1386407
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 9, 2001
Docket00-3056
StatusPublished
Cited by18 cases

This text of 271 F.3d 274 (United States v. Sumlin, Pernell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sumlin, Pernell, 271 F.3d 274, 350 U.S. App. D.C. 13, 2001 U.S. App. LEXIS 24174, 2001 WL 1386407 (D.C. Cir. 2001).

Opinion

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 *278 in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(l)(B)(ii); unlawful distribution of 5 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(l)(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)(l)(B)(ii) and 18 U.S.C. § 2. Sumlin appeals, arguing that the Government im-permissibly 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 intro *279 duced at trial — without objection — statements from Sumlin regarding his experience as a drug dealer; testimony from Goode elaborating and interpreting Sum-lin’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,

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Bluebook (online)
271 F.3d 274, 350 U.S. App. D.C. 13, 2001 U.S. App. LEXIS 24174, 2001 WL 1386407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sumlin-pernell-cadc-2001.