United States, v. Vincent Leroy Brown, Jr., Appellant.united States, v. Rodger L. Turner, Appellant, 946 F.2d 1567 (D.C. Cir. 1991)

These appeals from judgments of conviction were considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments of counsel. The court is satisfied that appropriate disposition of the appeals does not warrant a published opinion. See D.C. Cir. R. 14(c). For the reasons stated in the accompanying Memorandum, it is

ORDERED and ADJUDGED that the judgments of conviction 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. R. 15(b) (2).

MEMORANDUM

Brown's appeal

For the reasons stated by the district court in its January 30, 1991 Memorandum and Order, we conclude that the government transgressed no legal requirement in failing to obtain a transcription of, and produce at or prior to trial, testimony Officer Stone gave at a D.C. Superior Court juvenile proceeding. Whatever the exact meaning of "possession" as used in the Jencks Act, arguably superior ability to cause notes in the possession of a court to be transcribed, and to secure the transcription, does not qualify. We furthermore conclude, upon full review of the record, that the evidence sufficed to permit a jury reasonably to infer that Brown aided and abetted co-defendant Turner's possession of cocaine with intent to distribute it. We note particularly Officer Stone's observation of Brown receiving money from apparent customers when Turner moved his head to indicate payment should be handed to Brown.

Turner's appeal

As to jury unanimity, the trial judge charged that each juror must agree to the verdict. Turner did not ask the judge to say more. Indeed, his counsel expressly declined to request a special unanimity instruction. We note, furthermore, that of the three cocaine stashes about which evidence was presented, only one contained five grams or more of cocaine; the other two contained, respectively, 1.34 grams and .227 grams--in total, less than five grams. To arrive at a jury finding that Turner possessed the requisite five grams or more, each juror had to agree on the sole stash that met the five gram specification, i.e., the brown medicine bottle that, as the Drug Enforcement Agency reported, contained 5.36 grams of cocaine. Turner's argument on this point is thus insubstantial.

Concerning Officer Stone's testimony about the five apparent drug sales occurring just before Turner's arrest, Turner complains on appeal of the trial court's failure to rule on the matter pursuant to Federal Rules of Evidence 403 and 404(b) (probity/prejudice assessment). No such objection was made at trial, nor was any limiting instruction requested. The evidence was introduced as part of the episode that included the charged offense and to show defendants' knowledge of possession with intent to distribute cocaine. Turner was hardly surprised by the testimony, which had been previewed in the arrest report and in Officer Stone's testimony at the preliminary hearing. Under the circumstances, the trial court's admission of the testimony surely was not "plain error."