Unpublished Dispositionunited States of America v. Eugene Carter, Appellant.united States of America v. Kevin E. Ruffin, Appellant, 920 F.2d 1039 (D.C. Cir. 1990)

These cases were heard on the record 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 that the judgment from which these appeals have been taken 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).

Eugene Carter and Kevin Edward Ruffin appeal their convictions in the district court on drug trafficking charges. The two were tried together before a jury and were both convicted of possessing, with intent to distribute, 1000 grams or more of phencyclidine ("PCP"), in violation of 21 U.S.C. § 841(a), (b) (1) (A) (iv) and 18 U.S.C. § 2. Carter was also convicted in the same trial on three other drug counts: (1) possession with intent to distribute 100 grams or more of phencyclidine, in violation of 21 U.S.C. § 841(a), (b) (1) (B) (iv) and 18 U.S.C. § 2; (2) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2, and (3) maintaining a premises to facilitate illegal drug trafficking, in violation of 21 U.S.C. § 856. Each appellant seeks reversal on the ground that the evidence was insufficient to support his conviction. In addition, Carter asserts the alternative grounds that the trial judge erroneously admitted expert testimony on the potential street value of the drugs involved and permitted a witness subpoenaed by Carter to invoke her fifth amendment privilege. Finding none of these grounds meritorious, we affirm the appellants' convictions.

On October 10, 1988, several District of Columbia police officers were called to an apartment building at 3500 14th St., N.W., in Washington D.C. When they arrived they were directed to the seventh floor of the building where they detected a strong odor of PCP coming from one of the apartments. While standing in the hallway, the officers observed Ruffin emerge from the apartment in the company of another man, William Shanks, Jr., who was carrying a shopping bag. When questioned, Shanks told the officers the bag contained "boat," meaning "loveboat," the slang term for marijuana laced with PCP. After noticing a strong chemical odor emanating from the bag, the officers looked inside and discovered six 16-ounce Sprite bottles filled with PCP and several ziplock bags containing loveboat. The officers arrested both Shanks and Ruffin and continued to watch the apartment.

A few minutes later they observed another male, Roy Wilson, emerge from the apartment and arrested him as well. Approximately fifteen minutes later they saw two females, Sheila McKnight and Bernadette Toye, open the door and begin to leave the apartment. When the officers stepped into view and identified themselves, McKnight and Toye hurried back into the apartment and slammed the door shut. The officers then knocked on the door but received no answer. About 15 minutes later, the door opened a fourth time and appellant Carter stepped forward, approached the officers and informed them that he lived in the apartment. The officers accompanied Carter back into the apartment where they noticed a strong aroma of PCP. They then arrested Carter, McKnight and Toye.

After obtaining a warrant, the officers searched the apartment and found and seized the following items: (1) in the refrigerator: eight plastic bags each bearing an adhesive dot and containing ten foil packets of loveboat; (2) in a trash bag in the kitchen: a one-gallon apple juice bottle containing traces of PCP and bearing Ruffin's fingerprints, adhesive dots similar to those on the packets in the refrigerator and the plastic wrapper from a six-pack of Sprite; (3) in the hall closet: a plastic bag in which were found a one-gallon pickle jar containing traces of loveboat and bearing Ruffin's fingerprints, a roll of tin foil and a spoon with traces of marijuana; (4) in a bedroom closet: plastic bags bearing adhesive dots and containing marijuana; (5) in the bathroom: a small table on which were found a paper filter mask and a pair of plastic gloves;¹  and (6) on a dinette table: letters addressed to Carter, one bearing the 14th street address.

Both Carter and Ruffin were indicted and tried on the following three counts: (1) possession with intent to distribute 1000 grams or more of phencyclidine, in violation of 21 U.S.C. § 841(a), (b) (1) (A) (iv) and 18 U.S.C. § 2, (count 1); (2) possession with intent to distribute 100 grams or more of phencyclidine, in violation of 21 U.S.C. § 841(a), (b) (1) (B) (iv) and 18 U.S.C. § 2, (count 2); and (3) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2, (count 3). In addition, Carter was indicted and tried on one count of maintaining a premises to facilitate illegal drug trafficking, in violation of 21 U.S.C. § 856, (count 4).

At trial, Carter admitted to being familiar with the smell of PCP but claimed he smelled only incense in the apartment on the afternoon of his arrest. He also testified that, although the apartment lease was in his name, McKnight, Shanks and Shanks's father stayed there sometimes. He further admitted that the table and mask in the bathroom were his but denied they had anything to do with drugs. Finally, he testified that he never saw Ruffin or Shanks in the apartment the afternoon of his arrest.

In his testimony, Ruffin admitted that he recognized a strong odor of PCP in the apartment the day of his arrest but denied having anything to do with the drugs, although he "had an idea" what was in Shanks's shopping bag. He explained the presence of his fingerprints on the jar and bottle by saying he had deposited each where it was found at Shanks's request. He also acknowledged that he tested positive for PCP on the day of the arrest but claimed not to have used the drug since the preceding summer.

On February 23, 1989, at the close of a three day trial, a jury found Ruffin guilty on count one and Carter guilty on all four counts. Each appellant challenges the sufficiency of the trial evidence. In addition, Carter alleges his convictions should be reversed because the trial judge erred in admitting expert testimony on the potential street value of the drugs seized and in permitting McKnight to invoke her fifth amendment privilege. We conclude that none of the grounds advanced warrants reversal.

First we consider the appellants' assertions that the trial evidence was insufficient to support their convictions. In evaluating a sufficiency of the evidence claim, we must view the evidence in the light most favorable to the government and sustain the verdict if the evidence is sufficient to permit a reasonable juror to find guilt beyond a reasonable doubt. United States v. Lewis, 626 F.2d 940, 951 (D.C. Cir. 1980). A jury's verdict may be overturned "only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." United States v. Davis, 562 F.2d 681, 683-84 (D.C. Cir. 1977). Viewing the evidence here in the light most favorable to the Government, we find it sufficient to permit the jurors reasonably to have found both appellants guilty of the crimes of which they were convicted.

Ruffin asserts his conviction should be reversed because the only evidence incriminating him, namely, his association with Shanks, his presence in the 14th Street apartment and the discovery of his fingerprints on the apple juice bottle and the pickle jar, are insufficient to demonstrate that he had any power or control over the drugs carried by Shanks. We disagree.

While mere association with a drug dealer or proximity to drugs is insufficient to sustain a conviction,²  the totality of the evidence here supports a finding by the jury that Ruffin was in constructive possession of the drugs carried by Shanks. Constructive possession "may be shown through direct or circumstantial evidence of dominion and control over the contraband, ... and may be found to exist where the evidence supports a finding that the person charged with possession was knowingly in a position to, or had the right to exercise 'dominion or control' over the drug." United States v. Lawson, 682 F.2d 1012, 1017 (D.C. Cir. 1982) (citations omitted). Thus, the sufficiency of the evidence "depends upon its capability plausibly to suggest the likelihood that in some discernible fashion the accused had a substantial voice vis-a-vis the drug." United States v. Staten, 581 F.2d 878, 885 (D.C. Cir. 1978). The combination of Ruffin's fingerprints on the bottle and jar used for mixing the drugs,³  his positive drug test results, his presence in the apartment and his departure with Shanks reasonably supports the conclusion that Ruffin was a participant with Shanks in a scheme to distribute the drugs in the shopping bag and had constructive possession of them. Accordingly, we reject Ruffin's sufficiency argument and affirm his conviction.

Carter asserts the jury could not have found constructive possession of the drugs seized so as to support his conviction on the first three counts because there was no evidence linking him to the drugs beyond his presence in the apartment and, although he was the apartment's lessee, three other people shared the apartment at the time. In challenging his conviction on the fourth count, Carter contends there was no evidence that he knew the premises were being used for drug activities. We find, however, that the evidence was sufficient to sustain Carter's conviction on all four counts. Given Carter's status as lessee, the quantity of drugs and paraphernalia found throughout the apartment, the pervasive odor of PCP while Carter was there and the fifteen minute delay after McKnight and Toye observed the police officers before Carter answered the door, the jury was entitled reasonably to conclude that Carter was aware of the presence of the drugs in his apartment and therefore had control over and constructive possession of them. Cf. United States v. James, 764 F.2d 885, 889-90 (D.C. Cir. 1985). Accordingly, we reject Carter's sufficiency argument as without merit.

Next we consider appellant Carter's evidentiary arguments. During the trial, the judge made two rulings now challenged by Carter. First, the judge permitted McKnight to invoke her fifth amendment privilege to avoid testifying. Second, the judge admitted, over Carter's objection, expert testimony by Detective Leslie R. Brett, a narcotics officer, along with two supporting exhibits, regarding the potential street-value of the drugs seized. Appellant Carter asserts both of these rulings were legally erroneous warranting reversal of his conviction. We disagree.

Carter first contends the trial judge deprived him of his sixth amendment right to compulsory process over McKnight whom Carter had subpoenaed to testify in his defense. Carter asserts it was reversible error to permit McKnight to invoke her fifth amendment privilege because her testimony would not have been self-incriminating and there was no substantial likelihood that she would be prosecuted. We find no reversible error in the judge's ruling.

While the sixth amendment grants an accused the right to compulsory process over witnesses, it does not encompass the right to compel a witness to waive a fifth amendment privilege. United States v. Thornton, 733 F.2d 121, 124-25 (D.C. Cir. 1984). When balancing the sixth amendment right of the accused against the fifth amendment right of the witness, the trial judge must make an appropriate inquiry into the basis of the privilege claimed by the witness and may not permit the witness to refuse to testify if a narrower privilege will afford adequate protection. Id. at 125. The judge's inquiry into the scope of the privilege, however, is limited by the fifth amendment and the judge may not force a witness to prove incrimination by testimony. United States v. Reese, 561 F.2d 894, 900 (D.C. Cir. 1977). To sustain invocation of the fifth amendment privilege, the judge must determine only whether there is a reasonable basis for believing a danger to the witness might exist in answering a particular question. Id. Further, the judge "may appraise a claim of privilege in light of his personal perception of the peculiarities of the case and should not be overruled unless it is perfectly clear that the witness is mistaken and that the answers cannot possibly incriminate." Hoffman v. United States, 341 U.S. 479, 487-88 (1951), quoted in United States v. Reese, 561 F.2d at 900.

Applying the foregoing principles, we find no error in the judge's ruling here. McKnight was with Carter in his apartment on the day of the arrests and, after starting to depart, immediately retreated inside when she saw the police officers. She was later indicted on drug charges on account of the events of that day, and those charges were dismissed only the day before Carter's trial began. Under these facts we cannot say it is "perfectly clear" either that her testimony could not possibly have incriminated her or that she would not have been prosecuted on account of it. Cf. United States v. Thornton, 733 F.2d at 126 ("Given the 'peculiarities of th [is] case'--that the defendant and the witness were arrested at the same time on similar charges, arising out of activities in which they very well might have been jointly involved--we do not think it 'perfectly clear' that [the witness] would not have incriminated himself had he testified as to any relevant events.") (footnote omitted).

Appellant Carter next challenges the admission of testimony by the Government's expert, Detective Brett, and supporting exhibits, regarding the possible street value of the drugs seized if sold in various forms. Carter specifically objects to this evidence insofar as it suggested the value of the liquid PCP if sold in individual one-ounce bottles or, mixed with marijuana, as loveboat. Carter contends this evidence was irrelevant because there was no evidence that the PCP was to be sold in one-ounce quantities or that he had available sufficient marijuana to produce the amount of loveboat used by Brett in his calculations. While we agree that the evidence was of marginal relevance, we find no reversible error in its admission. The appellants' cross-examination of Brett and the judge's instructions both made it clear to the jury that they should not give undue weight to this evidence, thereby eliminating any prejudice that might otherwise have resulted from it. We therefore conclude that, if admission of the challenged evidence was erroneous, it was harmless error. Cf. United States v. Baskin, 886 F.2d 383, 387-88 (D.C. Cir.), cert. denied, --- U.S. ----, 108 L. Ed. 2d 960, 110 S. Ct. 1831 (1989) (at trial for possession of cocaine, expert testimony regarding crack cocaine held harmless even though there was no evidence the defendant possessed crack or intended to convert his cocaine into crack).

For the reasons set forth above, we conclude the convictions of both appellants were supported by substantial evidence and that appellant Carter's assertions of legal error are without merit. Accordingly, the judgments of the district court are

Affirmed.