United States v. Poole ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4735
JASON CONRAD POOLE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-96-238-AW)
Submitted: September 29, 1998
Decided: October 14, 1998
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert W. Biddle, H. Allen Black, III, OBER, KALER, GRIMES &
SHRIVER, Baltimore, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Ranganath Manthripragada, Assistant United
States Attorney, Barbara S. Skalla, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jason Conrad Poole appeals his conviction for possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(1994). On appeal, Poole challenges several aspects of the conduct of
his trial. We affirm.
I
On June 8, 1996, several FBI agents with a warrant for Jason
Poole's arrest stopped a Nissan Maxima in which Poole was riding.
As the agents approached the car, they saw Poole lean forward and
speak to the driver. The car then pulled over a curb and drove away,
with the agents in pursuit. During the chase, Agents Sparks and Lisi
saw Poole reach through the Maxima's sunroof and throw a soft-ball
sized, blue and white object onto the shoulder of the road as the car
drove on. Agent Lisi visually marked the spot, and they continued on
after the Maxima. The agents lost sight of the car, but were aided by
pedestrians who told them where it had gone. When the agents dis-
covered the Maxima parked on the street, Poole was not nearby.
Agent Giuliano found Poole approximately three blocks from the car.
Poole was carrying $2206 in cash in his right pants pocket and $2400
in cash in his left pants pocket. One of the bills was missing a corner,
which was later found in the Maxima. Poole stated his name was
Michael Walker, and denied knowing anything about the Maxima.
Agents Sparks and Lisi returned to look for the object that had been
thrown from the car, and were able to locate it quickly because of
their visual marking of the spot. They found a blue and white Handi-
wipe next to a plastic bag containing off-white chunks that were later
tested and found to be 56.6 grams, approximately two ounces, of
crack cocaine.
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The jury found Poole guilty of the charge. The district court sen-
tenced him to 262 months imprisonment, to be followed by ten years
supervised release.
II
At trial, FBI Agent Rawls testified as an expert on the sale price
and packaging of crack cocaine in Washington, D.C., in June 1996.
He testified that the market value of two ounces of crack cocaine was
between $2200 and $2500. Poole asserts that the district court's ruling
permitting this testimony was error on several grounds: (1) the evi-
dence was inadmissible as evidence of prior bad acts under Fed. R.
Evid. 404(b); (2) the evidence was inadmissible under Fed. R. Evid.
702; and (3) the evidence was inadmissible under Fed. R. Evid. 403.
Evidence of other crimes is not admissible to prove bad character
or criminal propensity. Such evidence is admissible, however, to
prove "motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Fed. R. Evid. 404(b). The
rule is one of inclusion, rather than exclusion. United States v.
Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3778 (U.S. May 27, 1997) (No. 96-752). "The
exception to admissibility under Rule 404(b) prohibits proof of a
defendant's character to show conduct in conformity therewith
because evidence of a person's character supplies an inadequate
causal link between it and the specific conduct sought to be estab-
lished." United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997),
cert. denied, ___ U.S. ___, 66 U.S.L.W. 3704 (U.S. Apr. 27, 1998)
(No. 97-8487).
Here, the testimony of Agent Rawls was not evidence of prior bad
acts within the meaning of Rule 404(b). The Government qualified
Rawls as an expert concerning the street value of crack cocaine in
Washington, D.C., at the time of the arrest. The direct examination,
once Rawls was qualified as an expert, covered two pages of tran-
script. Rawls testified about different weights of crack that are com-
monly sold. He testified that an ounce of crack could be sold in the
Washington area in June 1996 for $1000 to $1500, with some dis-
count for the sale of two ounces. He stated that two ounces might
have sold for $2200 to $2500. That was the substance of Rawls's tes-
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timony on direct. He made no statement as to any prior crime or bad
act of Poole, and in fact made no reference to Poole at all. The fact
that the jury might have drawn some inference as to the source of the
cash found in Poole's pockets upon his arrest does not amount to prior
bad acts testimony under Rule 404(b). Therefore, Poole is entitled to
no relief on this ground.
The parties stipulated for trial that "the person who possessed the
drugs in this case knew that they were drugs and intended to distribute
them." Poole suggests that Rawls's testimony was irrelevant in view
of this stipulation. But the district court has broad discretion in ruling
on the relevance and admissibility of evidence in general, which we
will not reverse absent an abuse of discretion. United States v.
Bostian, 59 F.3d 474, 480 (4th Cir. 1995). To the extent that Poole
seeks to argue that the relevance of the evidence was outweighed by
"the danger of unfair prejudice, confusion of the issues, or misleading
the jury . . .," Fed. R. Evid. 403, such an argument cannot prevail.
"Rule 403 judgments are preeminently the province of the trial courts.
We thus review a district court's admission of evidence over a Rule
403 objection under a broadly deferential standard." United States v.
Love, 134 F.3d 595, 603 (4th Cir.), cert. denied, ___ U.S. ___, 66
U.S.L.W. 3790 (U.S. June 16, 1998) (No. 97-9085). The district
court's ruling is overturned only under extraordinary circumstances,
where the district court plainly has abused its discretion by acting
arbitrarily or irrationally. United States v. Simpson, 910 F.2d 154, 157
(4th Cir. 1990). The evidence is reviewed in the"light most favorable
to its proponent, maximizing its probative value and minimizing its
prejudicial effect." Id. Evidence that the cash found on Poole at his
arrest was in an amount substantially equal to the amount that would
be received from two sales of two ounces of cocaine could reasonably
implicate Poole as the one in possession of another lump of crack
cocaine weighing about two ounces, and therefore be relevant in
establishing the identity of the individual who threw the drugs from
the car. Defense counsel himself, on cross-examination, elicited infor-
mation that an individual with a large amount of cash in certain
denominations and packaged a certain way is likely to be associated
with drugs.
Poole suggests that the evidence was improperly admitted under
Fed. R. Evid. 702. This court reviews the district court's ruling on
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expert testimony for abuse of discretion. United States v. Dorsey, 45
F.3d 809, 812 (4th Cir. 1995). Expert testimony must be both relevant
and reliable to be admissible. Daubert v. Merrell Dow Pharmaceuti-
cals, Inc., 509 U.S. 579, 587 (1993). Poole does not challenge the
reliability of Rawls's testimony, but alleges that it was irrelevant and
confusing. Rule 702's basic standard of relevance is a liberal one. Id.As discussed above, the evidence was relevant and not unduly preju-
dicial. In addition, although not requested to do so, the district court
did instruct the jury to focus only on the offense charged, noting that
Poole was not being tried for any other conduct. Therefore, we find
no error in the admission of Rawls's testimony.
III
The district court allowed a Government witness to testify that
Poole gave agents a false name at the time of his arrest and denied
that he had been in the Maxima. Poole argues that admission of this
evidence of uncharged criminal misconduct was error under Fed. R.
Evid. 403, 404(b). The evidence, however, is relevant to show Poole's
guilty knowledge and an attempt to disassociate himself from the
Maxima. Nor was the evidence introduced to prove character or
action in conformity therewith; instead, it was relevant to identity and
intent. Therefore, the district court did not abuse its discretion in
admitting this evidence. See Queen, 132 F.3d at 995.
Poole also argues that the evidence that he gave a false name and
false exculpatory evidence was unduly prejudicial under Fed. R. Evid.
403. However, this evidence is not likely to have excited the jury "to
irrational behavior, [so] that this risk [was] disproportionate to the
probative value of the . . . evidence." United States v. Powers, 59 F.3d
1460, 1467 (4th Cir. 1995).
IV
Poole asserts that an event that took place during the trial consti-
tuted a violation of the district court's sequestration order and Fed. R.
Evid. 615. No objection was made during trial; therefore, we evaluate
the claim for plain error. United States v. Olano, 507 U.S. 725, 732-
37 (1993).
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According to the testimony of Agent Sparks during cross-
examination, no one had measured the distance from the spot the
drugs were thrown from the car to the next intersection. After trial
that day, Government counsel asked Agent Reilly, the case agent, to
request Agent Lisi, who would testify the next day, to measure the
distance. On cross-examination, Poole's counsel pursued the facts
surrounding this request. Lisi testified that Agent Reilly told him "the
prosecutor thought it might be necessary for me to try to get an exact
measurement from the blue rag to the light." Reilly did not in any way
discuss any prior testimony, merely stating that the prosecutor thought
the distance might be relevant.
There is no evidence here that Agent Lisi's testimony was tainted
by hearing the testimony of other witnesses. United States v. Cropp,
127 F.3d 354, 363 (4th Cir. 1997), cert. denied , ___ U.S. ___, 66
U.S.L.W. 349 (U.S. Jan. 26, 1998) (No. 97-7265). The conduct com-
plained of does not constitute violation of the sequestration order;
hence, there is no error. Poole is entitled to no relief on this claim.
V
During their deliberations, the jurors asked the district court,
among other things, that they be allowed to "review your definition
of possession in your instructions to the jury." Although counsel for
Poole did not object to the initial instruction, or to sending the instruc-
tion back to the jury, he did object to including an example regarding
constructive possession on the ground that it was irrelevant and the
example would be improperly emphasized if it was sent back. The
district court overruled the objection.
On appeal, Poole reiterates this claim. As Poole did not object to
the instruction when it was given by the court, we can review its con-
tents only for plain error. United States v. Ellis, 121 F.3d 908, 923
(4th Cir. 1997); cert. denied, ___ U.S. ___, 66 U.S.L.W. 3457 (U.S.
Jan. 12, 1998) (No. 97-7095); see Fed. R. Evid. 30. We review the
district court's decision to allow the jury to have a written copy of the
court's charge for abuse of discretion. United States v. Sotelo, 97 F.3d
782, 792 (5th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3648 (U.S. Mar. 24, 1997) (No. 96-7954).
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The instruction that was sent back to the jury explained actual pos-
session, with an example, and constructive possession, with two
examples. The instruction contained a warning that possession could
not be based only on proximity, presence, or association, but that
those factors could be considered with all the evidence. The jury
requested the entire instruction on possession, not just that on con-
structive possession. The district court did not abuse its discretion in
sending the instruction to the jury; nor was the instruction itself plain
error. Olano, 507 U.S. at 736-37.
VI
Poole argues that comments in the prosecutor's closing argument
are reversible error. Poole made no objection to these comments;
therefore, we review the issue for plain error. United States v.
Mitchell, 1 F.3d 235, 239 (4th Cir. 1993).
None of the statements cited by Poole, either separately or cumula-
tively, amount to the type of prejudicial, plain error that would entitle
Poole to relief. See United States v. Morsley , 64 F.3d 907, 912-14 (4th
Cir. 1995) (setting forth standards to evaluate prosecutorial com-
ments). Therefore, he is entitled to no relief on this claim.
We affirm Poole's conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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