Unpublished Dispositionunited States of America, Appellee, v. Samuel Steve, Appellant.united States of America, Appellee, v. Theresa Rainey, Appellant, 919 F.2d 182 (D.C. Cir. 1991)

These appeals 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. Upon full review of the case, the court is satisfied that appropriate disposition of the appeals does not warrant a published opinion. See D.C. Cir. Rule 14(c). For the reasons stated in the accompanying memorandum, it is

ORDERED and ADJUDGED that the judgments from which these appeals have been taken be affirmed.

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

MEMORANDUM

On March 28, 1989, the police executed a search warrant at a row house on R Street in southeast Washington, D.C. The officers knocked on the front door and announced their presence. After a brief interval in which there was no response, they used a battering ram to enter the house. Upstairs, the police found appellants Samuel Steve and Theresa Rainey seated in a bedroom. On a coffee table, according to the police officers' testimony, drug paraphernalia were in plain view--a razor blade with white residue, smoking pipes, butane bottles, a mirror, and several (one officer estimated 50 or 60) plastic ziplock bags. Peering under a nightstand, a search team member found a locked night depository bag from the National Capital Bank of Washington. A printed business card attached to the bank bag bore the name "Citywide Notary Service," the address of the R Street house, appellant Steve's name as General Manager, and appellant Rainey's, as Secretary. The bank bag, which an officer cut open with the razor, was found to contain 24.48 grams of crack cocaine and five hundred dollars.

In response to an officer's inquiries, Rainey identified herself as Steve's wife and said she lived at the R Street house. The police seized, in addition to the bank bag, a cable television bill addressed to Steve. They also removed, during personal searches, one hundred and fifty-five dollars from Steve's pants pocket, and one hundred and one dollars from Rainey's. However, the officers failed to seize the ziplock bags and other paraphernalia from the table in the bedroom. At trial, the officers testified that the coffee table had overturned and due to oversight or confusion about responsibility for securing the evidence, the ziplock bags were never recovered.

Officer Starks met Steve in the R Street house after Steve was brought downstairs and before he was given Miranda warnings. Starks recognized Steve as a former neighbor. He asked Steve about their old neighborhood and whether Steve still lived there. Steve answered that he lived at the R Street house. Prior to trial, Steve moved to suppress his statement to Officer Starks on the ground that he had been subjected to custodial interrogation without Miranda warnings. The trial court denied Steve's motion.

At trial, a branch manager of the National Capital Bank of Washington identified Steve as the person who opened a business account for Citywide Notary Service on March 3, 1989. The business address on the account was the R Street house. The manager also testified that, on March 23, 1989, she had furnished Steve with a night depository bag, along with the key. Rainey was not identified on the business account, nor did the bank officer recall seeing a woman with Steve. The government also introduced evidence that $521 had been deposited in the Citywide Notary Service account on the day of the arrest and that the account balance on that day was $1,620.

Detective Coates, appearing for the prosecution as a narcotics expert, testified that the drugs found in the bank bag in the bedroom had a street value of about $2,400. He further said that the quantity of drugs and the paraphernalia found in the bedroom were consistent with distribution rather than simple possession for personal use. On cross-examination, Detective Coates stated that in the absence of the ziplock bags, the evidence would be consistent with personal use.

On August 3, 1989, the jury found Steve and Rainey guilty, as charged, of possession with intent to distribute in excess of five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a), (b) (1) (B) (iii), and 18 U.S.C. § 2 (aiding and abetting). The trial judge sentenced Steve to 110 months in prison and Rainey, to 78 months.

On appeal, Steve contends: (1) it was error for the trial court to allow police officer testimony regarding the missing ziplock bags; (2) the trial court erroneously denied the defense request for a missing evidence instruction; (3) Steve's statement to Officer Starks should have been suppressed; and (4) the cable television bill addressed to Steve at the R Street house was not properly authenticated and should not have been admitted.

Rainey joins Steve in objecting to the admission of the ziplock bag testimony and the denial of the missing evidence instruction. She also contends that her motion to acquit should have been granted because the prosecution's evidence was insufficient to establish her "knowing" possession of the drugs in the bank bag. Rainey further objects to the trial court's instruction that the jury could find her guilty of aiding and abetting. Finally, she argues that the trial court erred in denying her request for a downward adjustment of the offense level under the Federal Sentencing Guidelines.

The Missing Evidence

The appellants' most substantial contention concerns the failure of the police to seize and produce at trial the ziplock bags. When the prosecutor loses or leaves behind important evidence, the trial court may find sanctions in order or a "missing evidence" instruction warranted, i.e., a charge that the jury may infer that the missing evidence would have been unfavorable to the government. Relevant considerations for the trial judge, in deciding what action to take when the government fails to preserve evidence, include "the degree of negligence or bad faith involved, the importance of the evidence lost, and the evidence of guilt adduced at trial." See United States v. Bryant, 439 F.2d 642, 653 (D.C. Cir. 1971).

The missing evidence instruction, like the missing witness instruction, is based on the logic that if the evidence were favorable to the party who had control over the item or testimony, that party would have offered the evidence as proof of its position. See Wigmore, Evidence Sec. 285 (3d ed. 1940). When evidence is unavailable because of a negligent failure to seize it at the crime scene, this logic may have less force. See Burgess v. United States, 440 F.2d 226, 234 (D.C. Cir. 1970) (no missing witness instruction required if adverse inference would not be "natural and reasonable"). However, a missing evidence instruction may still be in order if the particular circumstances of the case indicate to the trial judge that the instruction would "serve the ends of justice." See Bryant, 439 F.2d at 653.

Experienced officers on the scene in this case testified that the ziplock bags and other paraphernalia, which they knew to be material to a distribution case, were left behind due to oversight. Unquestionably, such an oversight indicates lack of care. There was, however, no evidence of bad faith in the failure to seize this evidence.

The ziplock bags were of prime importance to the government's "intent to distribute" case, but they were not the sole indicia of distribution. The substantial sum of money hidden together with the cocaine base in the locked bank bag, the quantity of drugs seized, and the recent bank deposits are all consistent with a charge of distribution. Furthermore, while the jury was unable to view the ziplock bags or to corroborate their number, it was able to evaluate the testimony of the officers and to decide what weight to give this secondary evidence.

Appellate judges do not see the trial as it unfolds, particularly, the witness' demeanor, and must place large stock in the trial court's appraisal in matters of this order. While the trial judge here declined to give a missing evidence instruction, he did recognize that it was the prosecutor's burden to explain the lapse and concluded that she did so adequately through police officer testimony. Transcript at 250. Most critically, the trial judge made it plain that, in closing statements, " [defense] counsel are certainly permitted to argue the absence of [the ziplock bag] evidence as going to the sufficiency of the government's proof." Id. And defense counsel surely did convey to the jury: " [T]he fact that those alleged ziplock bags have not been brought into this court puts you in the position to draw an adverse inference against the [prosecution]." Id. at 272. Ultimately, the question for this court of review is whether the trial judge abused the discretion properly accorded him. See, e.g., Burgess, 440 F.2d at 234 & n. 11; United States v. Sherlock, 865 F.2d 1069, 1075 n. 3 (9th Cir. 1989). We are satisfied in this case that he did not.

Appellant Steve

Appellant Steve also argues that his Miranda rights were violated by the introduction of his statement to Officer Starks that he then lived at the R Street house. Steve further objects to a cable television bill also introduced to show his address. We need not decide whether either of these pieces of evidence was properly admitted. Steve was solidly linked to the R Street premises by his business bank account and card. The statement to Starks and the bill were cumulative of much other evidence and sensibly cannot be counted as consequential.

Appellant Rainey

Rainey contends that there was insufficient evidence connecting her to the drugs in the bank bag to allow the charges against her to go to the jury. Again, we conclude that the trial judge ruled correctly. In light of the evidence of drug preparation and packaging in the room in which Rainey and Steve were apprehended, the listing of her name on the card as "Secretary" of the business conducted at the R Street house, and her statement that she lived with Steve on the premises, a reasonable jury could connect her to the charged crack distribution activity without improper speculation.

Nor was the aiding and abetting charge improper, given the evidence supporting punishment of Rainey as a principal or facilitator. See United States v. Raper, 676 F.2d 841 (D.C. Cir. 1982). Finally, we cannot reject as "clear error" the trial court's judgment that Rainey failed to carry the burden of showing that her role in the offense was so "minimal or minor" as to demand a reduction of her offense level under the Federal Sentencing Guidelines.

These cases have disturbing features--the police search which, according to the officers' testimony, was careless, the prosecutor's contingent plea offer to Rainey. In context, these features do not convince us that Steve or Rainey were unfairly apprehended, tried, convicted or sentenced. But this court anticipates that the prosecutors who serve as officers of the court will take note of our concerns and constantly strive to promote careful police practices, and to assure the fair processing of criminal cases.