Unpublished Dispositionunited States of America, Appellee, v. Barrington Ellis, Appellant.andunited States of America, Appellee, v. Ronald D. Clark, Appellant, 871 F.2d 1149 (D.C. Cir. 1989)

This case was considered on appeal from the United States District Court for the District of Columbia. The Court has determined that the issues presented occasion no need for a published opinion. See D.C. Cir. Rule 14(c). For the reasons set forth in the accompanying memorandum, it is

ORDERED and ADJUDGED, by the Court, that the convictions of defendants-appellants Ellis and Clark on December 14, 1987, for possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (iii), be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15(b) (2).

MEMORANDUM

Appellants Barrington A. Ellis and Ronald D. Clark appeal their convictions in the district court of possession of cocaine with intent to distribute. They challenge the admission of evidence showing prior bad acts--namely, that appellants were engaging in drug transactions during the two days prior to their arrest--as well as the district court's instruction to the members of the jury on how they could use this evidence. They further argue that the testimony of certain witnesses was ruled inherently "incredible" by the district court, and that without this evidence there was insufficient evidence to support the convictions. For the reasons that follow, we reject these arguments and affirm the convictions.

On July 17, 1987, police officers executed a warrant in a northeast D.C. apartment. Police observed appellant Clark flee into a bedroom and close the door behind him. The police ultimately found both appellants in a closet in the bedroom accompanied by ten small one-gram packets of crack. Appellants were arrested and charged with two counts: 1) conspiracy to distribute cocaine, and 2) possession with intent to distribute cocaine, pursuant to 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B) (iii), and 846.

Appellants were tried before a jury. Witnesses for the prosecution included police officers present at the scene on July 17, as well as three women (Tawanna Cunningham, Lisa Beverly, and Shezell ("She-She") Perkins) who were at the apartment at the time of the arrest and who testified that they had witnessed appellants engaging in various drug distribution activities earlier in the day on July 17 and the day before.¹ 

At the end of the prosecution's case, Judge Parker granted the appellants' motion for a judgment of acquittal as to the conspiracy count, but left the count charging possession with intent for the jury, which returned a verdict of guilty.

II. Evidence of Prior Bad Acts: Fed.R.Evid. 404(b)

When it was offered, evidence tending to show that appellants had engaged in drug sales in the two days prior to the arrest was admissible: so long as the conspiracy charge was still active, this testimony was direct evidence of the conspiracy. The question on review is whether the testimony should have been stricken once the conspiracy count dropped out of the proceedings. In particular, we must address whether the district court properly determined that the evidence was admissible under Fed.R.Evid. 404(b).²  No request was made at the relevant point in the trial for an on-the-record balancing of the probative value of the evidence against its prejudicial effects, and thus the court did not offer one. But in this case we find that the factors upon which the evaluation was made are readily apparent and fully justify the court's decision to permit the evidence.

First, the evidence is relevant and probative on an important ultimate issue in the case: whether appellants had the requisite intent to distribute the crack they were found to possess. By entering a general denial of guilt, appellants put the government to its proof on this issue and will not now be heard to argue that the government cannot introduce certain evidence to establish this element of the crime because alternative forms of proof might have existed to show the same thing.³  Absent a showing that the presentation of particular evidence will create unfair prejudice or is in some other way improper, this is a choice that the prosecutor has the prerogative to make.

Second, this court has identified several factors as critical to any balance of the risk of prejudice against probative value, including similarities between the prior acts testified to and the crime charged, closeness in time, and geographical proximity.⁴  Each of these factors counsels in favor of a conclusion that the district court's decision was reasonable in this case: here, the government presented eyewitnesses who testified to specific acts of drug dealing from the same apartment during the two days prior to the search and arrest. It was not error for the court to find that this evidence was admissible under Rule 404(b) for the purpose of showing appellants' intent to distribute.⁵ 

The attorneys for the defendants did register a general objection to the district court's decision to give an instruction on prior bad acts at all, on the ground that it would be preferable not to draw any attention to the potentially damaging evidence. But once the decision was made to go ahead with the instruction, the responsibility arose anew to object if the proffered instruction was substantively wrong. Here, however, no contemporaneous objection was raised to the contents of the instruction, and this court thus looks only for plain error.

In assessing whether there was prejudicial error in the district court's instruction, this court should determine whether "the jury may have convicted the defendants solely upon" an improper use of the prior bad acts evidence. United States v. Lemire, 720 F.2d 1327, 1339 (D.C. Cir. 1983). The court should look at "all the circumstances--the language of the instructions, the arguments of counsel, and the evidence itself." Id. The district court's instruction on prior bad acts was as follows:

Now, during the testimony that you have heard during the Government's case, you heard testimony from several witnesses that on at least one occasion a few days before July 17th of this year the Defendants sold drugs at the Paradise Gardens Apartments. That evidence was admitted only for a limited purpose, namely, for your consideration of whether it showed or tended to show that the Defendants had the ability to commit the offense for which they are now on trial.

Tr. III at 72 (emphasis added). A narrow reading of this passage, without regard to the context in which it was given, might suggest that the district court's instruction misstated the law to the jury. However, in the context of the broader instructions and the arguments of the prosecutor, it is highly unlikely that a reasonable juror would have misunderstood the law that the instruction was designed to convey.

First, the prosecutor's closing argument gave a proper description of the purposes for which the evidence was admitted. After recounting in some detail the elements of the pertinent testimony, the prosecutor continued:

[W]e brought that before you not because these Defendants are charged with distributing on that day or a day or two before, but to try and show you what these Defendants were doing, to try and show you that they did have the intent to distribute because a day or two before they were doing the exact thing, to try and show you who was involved doing this on the day they are charged because a day or two before these two Defendants, Towana [sic ] Cunningham told you, were involved in transactions.

Tr. III at 20 (emphasis added). Thus, the evidence was argued to the jury in proper form.

Second, the court's instructions themselves, read in the broader context in which they were given, also convey to the reasonable person a correct statement of the law, notwithstanding the use of the word "ability." The two pages of transcript preceding the portion of the instructions quoted above demonstrate that the broad thrust of the instructions was on intent. Thus, the court stated that the "evidence was admitted only for a limited purpose, namely ... whether ... the defendants had the ability to commit the offense for which they are now on trial...." The court went on to clarify in the next paragraph: "If you decide to accept it as indicated above, you may do so only for the limited purposes as described by the Court [,] ... namely, the possession on July 17th with the intent to distribute cocaine ..." (emphasis added). In this context, "ability" refers to whether or not the defendants' actions satisfied the required elements of the crime for which they were charged, including the component of intent. In the overall context of the closing arguments and the instructions, reasonable jurors should have come away with a correct understanding of the purposes for which they were supposed to consider the evidence of prior bad acts.

Appellants further argue that there was insufficient credible evidence in the record to support their convictions. The argument hinges on the district court's "rul [ing]," Br. for Appellants at 28, following the presentation of the prosecution's case that the three civilian women who testified against the defendants were "incredible." The exchange came about during discussion of the defendants' motion to dismiss the conspiracy count:

The Court: Mr. Fredericksen. Let me hear you as to the conspiracy count.... Is there any testimony about Joyce Billings renting her apartment to Clark and Ellis for the use in packaging and distributing cocaine?

A: Yes, Your Honor. I believe there is.

The Court: From whom?

A: I think from each of the civilian witnesses.

The Court: Each what?

A: Each of the civilian witnesses.

The Court: No. Each of those witnesses were so incredible.

A: I have to disagree, your honor.

The Court: You may disagree, but I am the one who rules on it. I realize that--go on.

A: I hope Your Honor keeps an open mind.

The Court: What do you mean by that?

A: I mean on these three individuals.

The Court: Don't you feel I am keeping an open mind?

A: Of course. I am just referring to your last statement when you said these three witnesses are incredible.

The Court: All right.

Tr. II at 228-29. That the court did keep an open mind is evidenced by its willingness just moments later not to dismiss the second count (possession with intent to distribute), and the necessary reasoning behind this decision. The prosecution's argument that the second count should not be dismissed was premised on two factors: First, the prosecutor noted that the defendants were found near the drugs in the closet; this, he urged, was the "minority" of the prosecution's case. Tr. II at 232. For the balance of the case, the prosecution relied exclusively on the three civilian witnesses:

[T]hey all saw drug transactions, with these two men involved in drug transactions. And that is the essence of possession with intent to distribute.... We respectfully submit, certainly at this stage, that that is enough for a jury to find beyond a reasonable doubt that there was possession with intent to distribute.

Tr. II at 233. To this, the court's response was: "Very well. I don't need to hear from either [defendant's attorney]. I am going to deny their motion to dismiss the second count of the indictment." Tr. II at 233-34.

The only logical reading of this portion of the transcript is that the district court did not "rule" as a matter of law that the three witnesses were incredible. Rather, he found whatever testimony they offered on the conspiracy count (namely, passing remarks that could be construed to connect the defendants to the apparent lessee of the apartment in which they were present, Joyce Billings) inadequate to support that count. However, minutes later he credited their testimony enough to send the second count to the jury.

The judge's feelings about these three witnesses--skepticism, but not outright disbelief--is finally revealed by his decision to give an instruction to the jury that the civilian witnesses "admitted that they were users on or about the time of the alleged offense of cocaine.... In that connection, you should view their testimony carefully." Tr. III at 72. Clearly the district court did not determine as a matter of law that they could not possibly be believed.

While there were certainly contradictions and discrepancies in the testimony of the three civilian witnesses, these were not fatal on the critical issues to which they testified: they claimed to have seen drugs being distributed from the apartment they visited on and around that summer day in 1987, and this evidence was never directly refuted. We therefore conclude that there was sufficient evidence in the record for a reasonable jury to return a verdict of guilty.