United States v. Toms, Ronald James ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 1998 Decided February 27, 1998
No. 97-3047
United States of America,
Appellee
v.
Ronald James Toms, a/k/a Block,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 93cr00367-01)
Veronice A. Holt argued the cause and filed the brief for
appellant.
Elizabeth H. Danello, Assistant United States Attorney,
argued the cause for appellee, with whom Mary Lou Leary,
United States Attorney at the time the brief was filed, and
John R. Fisher, Assistant United States Attorney, were on
the brief.
Before: Edwards, Chief Judge, Wald, and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Ronald James Toms ("Toms") was
convicted of conspiracy to distribute and possess with intent
to distribute 50 grams or more of cocaine base; possession of
50 grams or more of cocaine base with intent to distribute;
using or carrying a firearm during and in relation to a drug
trafficking crime; and carrying a pistol without a license.
Because of the amount of drugs the district court found to be
involved in the conspiracy, Toms was assigned a base level of
38 under the United States Sentencing Guidelines ("the
Guidelines"). Toms now appeals his convictions and his
sentence, contending that there was insufficient evidence to
convict him of using or carrying a firearm, that the district
court improperly admitted expert testimony as to his intent to
distribute, and that the district court made an incorrect
finding as to the amount of drugs involved in the conspiracy.
Because we find these claims to be without merit, we affirm
Toms's convictions and sentence.
I. Background
On November 9, 1993, a grand jury returned a thirteen-
count superseding indictment against Toms and two co-
defendants, Jimmy Thomas, Jr. ("Thomas"), and Keith Don-
nell Bradley ("Bradley"). All three men were charged with
conspiracy to distribute and possess with intent to distribute
50 grams or more of cocaine base from 1987 to October 1993
in the Paradise and Mayfair housing complexes in northeast
Washington, D.C. (21 U.S.C. ss 841(a)(1), (b)(1)(A)(iii), 846
(1994)). Toms and Thomas were also charged with distribut-
ing cocaine base on two dates in 1993 (21 U.S.C. ss 841(a)(1),
(b)(1)(A)(iii), (b)(1)(B)(iii) (1994); 18 U.S.C. s 2 (1994)), and
Toms and Bradley were charged with possession of 50 grams
or more of cocaine base with intent to distribute (18 U.S.C.
s 2 (1994); 21 U.S.C. ss 841(a)(1), 841(b)(1)(A)(iii) (1994));
using or carrying a firearm during and in relation to a drug
trafficking crime (18 U.S.C. ss 2, 924(c) (1994)); and carrying
a pistol without a license (D.C. Code Ann. ss 22-3204(a), 105
(1996)). Thomas and Bradley both pled guilty.1
Among the evidence put forward by the government to
prove the conspiracy was the testimony of Thomas, Toms's
co-defendant. Thomas testified that Toms had supplied him
with at least an ounce (28 grams) of cocaine base for distribu-
tion on "hundreds" of occasions from 1987 to 1993. Tran-
script ("Tr.") 1/13/95 at 123-24.
The remaining charges against Toms stemmed from an
incident on September 10, 1993. On that date, Elbert Kibler,
a cooperating witness, saw Toms, Bradley, and a third man
enter Thomas's apartment building in northeast Washington.
Kibler called the Federal Bureau of Investigation ("FBI"),
which had been investigating the conspiracy. FBI agents set
up a surveillance of the area and watched as Toms and
Bradley left the building, got into a Toyota Land Cruiser
(with Toms in the driver's seat and Bradley in the passen-
ger's seat), and drove off. The agents followed the car, which
they had initially intended to trail to its destination; when
Toms began speeding and weaving in and out of traffic, the
agents initiated a traffic stop. After removing Toms and
Bradley from the car, the agents noticed a loaded, nine-
millimeter, semi-automatic pistol on Bradley's seat.
A search of Toms incident to arrest yielded approximately
$2,000 in cash, an identification card, and an electronic pager.
The FBI later searched the Land Cruiser pursuant to war-
rant and retrieved a plastic bag containing 67.8 grams of
cocaine base from under the rear seat and over $8,000 in cash
from an air vent.
Both Toms and Bradley testified that Toms had no knowl-
edge that the gun was in the car and that the gun belonged to
Bradley. See Tr. 1/23/95 at 130, 157 (Toms); id. at 12, 83
(Bradley). Toms also denied any involvement in drug dealing
__________
1 Thomas pled guilty to the indictment. Bradley pled guilty to
the charge of possession with intent to distribute on September 10,
1993; the remaining charges against him were dismissed pursuant
to plea agreement.
or knowledge of the drugs found in the Land Cruiser. See id.
at 101, 130. He claimed that the money found in the air vent
of the car was to be used to cover the costs of recording a
compact disc and was in the air vent for safekeeping. See id.
at 131, 150. The jury subsequently convicted Toms of the
conspiracy and the three counts related to the September
10th incident. Toms's motion for a new trial was denied.2
The presentence report assigned to Toms a base offense
level of 38 under the Guidelines based on Thomas's testimony
that he had received at least 28 grams of cocaine base from
Toms on "hundreds" of occasions. See Tr. 1/13/95 at 123-24;
U.S. Sentencing Guidelines Manual [hereinafter "U.S.S.G."]
s 2D1.1(c)(1) (1997). On April 7, 1995, Toms moved for a
hearing, seeking to question Thomas and Bradley and gain
access to their presentence reports and alleging that Thom-
as's testimony was unreliable. The district court denied
Toms's motion on March 4, 1997, crediting Thomas's testimo-
ny and concluding that even taken at its most conservative
(28 grams on each of one hundred occasions), Thomas's
testimony supported a finding that Toms had distributed 2.8
kilograms of cocaine base, resulting in a base offense level of
38. The district court also adopted the report's recommenda-
tion that Toms's base offense level be enhanced by four levels
for his role in the conspiracy, see U.S.S.G. s 3B1.1(a), and by
two levels for obstruction of justice, see U.S.S.G. s 3C1.1,
yielding a total offense level of 44.3 Because Toms had
reached the Guidelines' sentencing cap of level 43, see
U.S.S.G. Ch. 5, Pt. A, intro. comment (offense level greater
than 43 to be treated as offense level of 43), he was sentenced
to concurrent terms of life imprisonment for the conspiracy
and possession convictions, to be followed by concurrent, five-
year terms of supervised release. Toms also received a
consecutive five-year term for using or carrying a firearm, to
__________
2 Toms's motion to vacate his convictions pursuant to 28 U.S.C.
s 2255 (1994) is still pending in the district court.
3 Toms does not challenge these two enhancements on appeal.
be followed by three years of concurrent supervised release,
and a concurrent, one-year term for carrying a pistol without
a license.
Toms now appeals his convictions, contending that there
was insufficient evidence to prove that he had knowledge of
the pistol found in the Land Cruiser and that the district
court improperly admitted expert testimony as to his intent
and knowledge. He also challenges his sentence, renewing
his argument that Thomas's testimony was an insufficient and
unreliable basis for the district court's conclusion as to the
amount of drugs involved in the conspiracy.
II. Analysis
A.The Weapon Convictions
Toms raises two challenges to his convictions arising from
the pistol found in the Land Cruiser. We agree with his
contention that a portion of the jury instructions was given in
error, but because we find this error harmless and his second
challenge meritless, we reject both challenges.
Toms's first challenge is to the jury instruction given on the
section 924(c) charge,4 which included the following:
The essential elements of the offense of use and carry-
ing of a firearm during and in relation to a drug traffick-
ing offense, each of which the government must prove
beyond a reasonable doubt are:
1. That the defendant used or carried a firearm;
2. That the defendant did so knowingly and intentional-
ly; and
3. That the defendant did so during and in relation to a
drug trafficking crime.
You're instructed that the word "use" can mean any
use, such as the maintenance of a firearm for security or
protection purposes.
__________
4 Section 924(c) prohibits the use or carrying of a firearm "during
and in relation to any crime of violence or drug trafficking crime."
18 U.S.C. s 924(c)(1).
The government need not show that the defendant
actively employed the firearm or that the firearm was
fired. It is sufficient to show the defendant actually or
constructively possess[ed] a firearm in order to prove
that he used it.
You're instructed that the word "carry" means to bear
on or about one's person. A firearm is carried on or
about one's person if it is located in such proximity to the
person as to be convenient of access or within reach....
Tr. 1/24/95 at 128 (emphases added). As the government
concedes, Bailey v. United States, 116 S. Ct. 501 (1995), which
the Supreme Court decided after Toms's conviction, renders
the district court's instruction on "use" error. See id. at 505(conviction for "use" of a firearm under section 924(c) "re-
quires evidence sufficient to show an active employment of
the firearm by the defendant, a use that makes the firearm an
operative factor in relation to the predicate offense").
Toms, unremarkably, did not object to this instruction, as it
was consistent at the time with the prevailing law in this
circuit. See, e.g., United States v. Bailey, 36 F.3d 106 (D.C.
Cir. 1994), rev'd, 116 S. Ct. 501 (1995). In United States v.
Smart, 98 F.3d 1379 (D.C. Cir. 1996), cert. denied, 117 S. Ct.
1271 (1997), under similar circumstances, we noted that we
would, under the supervening-decision doctrine,5 apply Bailey
retroactively "to vacate any prior conviction in which such an
instruction was given where it might have caused the jury to
conclude that the defendant's awareness of and proximity to a
gun nearby in a drug transaction constituted a forbidden 'use'
of the gun"--in other words, if the error could not be said to
be harmless. Smart, 98 F.3d at 1393.6 The evidence intro-
__________
5 See, e.g., United States v. Washington, 12 F.3d 1128, 1139 (D.C.
Cir. 1994) (court will consider issue not raised at trial "where a
supervening decision has changed the law in appellant's favor and
the law was so well-settled at the time of trial that any attempt to
challenge it would have appeared pointless").
6 The government cites Johnson v. United States, 117 S. Ct. 1544(1997), for the proposition that where a defendant fails to object to a
jury instruction later rendered erroneous by a supervening decision,
duced at trial was that the gun was found in the seat where
Bradley had been sitting after he was removed from the car,
a decidedly nonactive employment. Thus, if Toms's section
924(c) conviction rested wholly on the jury's conclusion that
he "used" a firearm during the drug trafficking incident, that
conviction would have to be vacated.
Nevertheless, as we noted in Smart, any error in the "use"
instruction would be harmless if the jury necessarily found
that Toms "carried" the firearm within the meaning of section
924(c).7 Smart, 98 F.3d at 1393. The "necessarily" is crucial,
for "a verdict [is required] to be set aside in cases where the
verdict is supportable on one ground, but not on another, and
it is impossible to tell which ground the jury selected." Yates
v. United States, 354 U.S. 298, 312 (1957), overruled on other
grounds by Burks v. United States, 437 U.S. 1 (1978); see
also United States v. Washington, 106 F.3d 983, 1013 (D.C.
Cir.), cert. denied, 118 S. Ct. 446 (1997). In Washington, for
example, we upheld the convictions of the defendant police
officers under section 924(c) because the only evidence in
support of their convictions showed that the officers were
wearing service pistols on their persons during the drug
trafficking incidents; as a result, the jury could not have
found that they "used" the pistols without also finding that
they "carried" the weapons. Toms now argues that the jury
could not have reached a similar conclusion in his case.
We can easily reject this contention. As in Smart, the jury
also convicted Toms of carrying a pistol without a license in
violation of section 22-3204(a) of the D.C. Code.8 The jury
__________
the instruction is reviewed for plain error rather than for harmless
error. The fact that the instruction given in this case survives even
a harmless error analysis makes consideration of this contention
unnecessary.
7 The indictment charged Toms with both the use and carrying of
a firearm during the drug trafficking offense on September 10,
1993, and so a valid conviction could have been obtained under
section 924(c) if the jury concluded that Toms had carried the
firearm during the offense.
8 Section 22-3204(a) provides, in pertinent part:
was instructed that in order to obtain a conviction on this
charge, the government had to prove, inter alia, (1) that
Toms carried a pistol openly or concealed on or about his
person; and (2) that he carried the pistol knowingly and
intentionally. See Tr. 1/24/95 at 130; see also Butler v.
United States, 614 A.2d 875, 885 (D.C. 1992). Under the
prevailing law of this circuit and of the District, "carry" is
interpreted identically for both section 924(c) and section
22-3204(a): the weapon must be convenient of access and
within reach. See, e.g., United States v. Anderson, 881 F.2d
1128, 1141 (D.C. Cir. 1989); Henderson v. United States, 687
A.2d 918, 920-21 & n.6 (D.C. 1996); see also Tr. 1/24/95 at 128
(jury instruction). Thus, in order to find that Toms "carried"
the gun under section 22-3204(a), the jury had to credit the
officers' testimony regarding the location of the gun--on the
passenger's seat of the car Toms was driving--and conclude
that Toms was aware of the gun's presence. These are the
same findings the jury would have had to make in order to
find that Toms "carried" the gun for purposes of section
924(c). Thus, by returning a guilty verdict on the section
22-3204(a) charge, the jury necessarily concluded that Toms
also carried the gun under section 924(c). The district court's
instruction on "use" was harmless error.
Notwithstanding this conclusion, however, Toms argues
that he was wrongly convicted of both of the weapon charges
because there was insufficient evidence to support a finding
that he had the requisite knowledge that the gun was in the
car.9 As the government notes, trial counsel did move for a
__________
No person shall carry within the District of Columbia either
openly or concealed on or about their person, a pistol, without a
license issued pursuant to District of Columbia law, or any
deadly or dangerous weapon capable of being so concealed.
D.C. Code Ann. s 22-3204(a).
9 Both the section 924(c) charge and the section 22-3204(a) charge
require proof that the defendant possessed the weapon knowingly
and intentionally. See, e.g., United States v. Powell, 929 F.2d 724,
727 (D.C. Cir. 1991); Butler, 614 A.2d at 885. Toms does not
challenge the sufficiency of the evidence on the remaining elements
of either charge (i.e., that the weapon was within his reach, that his
judgment of acquittal on this basis as to "the gun charge" at
the close of the government's evidence,10 but he failed to
renew this motion at the close of all evidence. As a result,
Toms's challenge would normally be reviewed for plain error.
See, e.g., United States v. White, 1 F.3d 13, 17 (D.C. Cir.
1993). However, Toms has claimed that this failure constitut-
ed ineffective assistance of counsel, which, as the government
concedes, requires that his challenge be analyzed under the
two-part test of Strickland v. Washington, 466 U.S. 668(1984). Under that test, Toms must show both (1) that trial
counsel's performance was deficient--that counsel's represen-
tation "fell below an objective standard of reasonableness"--
and (2) that the deficient performance prejudiced the client--
"that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 687-88, 694. Because ineffective
assistance claims typically require an evidentiary hearing, we
"normally do not resolve them on direct appeal, instead
remanding to the district court." United States v. Gaviria,
116 F.3d 1498, 1512 (D.C. Cir. 1997), cert. denied, 118 S. Ct.
865 (1998). However, this tendency to remand has two
__________
possession was "during and in relation to a drug trafficking crime,"
that the pistol was operable, and that he was not licensed to carry a
pistol in the District of Columbia), and, in any event, there was
ample evidence that these elements were satisfied. See, e.g., Unit-
ed States v. Eyer, 113 F.3d 470, 476 (3d Cir. 1997) (gun within reach
inside passenger compartment of car satisfies "carry" element of
section 924(c)); United States v. Range, 94 F.3d 614, 617 (11th Cir.
1996) (same); Henderson, 687 A.2d at 921 n.6 (same with regard to
section 22-3204(a)).
10 "As to the gun charge, I think there is insufficient evidence that
there be [sic] joint possession of the weapon. So I think there's
been insufficient evidence on that. The government's entire theory
in this case, which goes beyond what the actual evidence is of Mr.
Bradley sitting on the weapon, is that that's evidence that he's the
enforcer, and that the gun would not be in the possession, dominion
and control of the defendant. It's not even consistent with their
theory of the case. So I move for acquittal on that." The motion
was denied. Tr. 1/20/95 at 153-54.
exceptions: "when the trial record alone conclusively shows
that the defendant is entitled to no relief and when the record
conclusively shows the contrary." Id. (internal quotes omit-
ted). Thus, we need not decide whether Toms's trial counsel
was deficient if, upon reviewing the record, we can conclude
that there is no reasonable probability that Toms would have
prevailed on a motion for judgment of acquittal even if one
had been made--in other words, we arrive at Toms's insuffi-
cient evidence argument by an alternate route. We thus
review "the evidence de novo, in [the] light most favorable to
the Government, in order to determine whether a rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." United States v. Moore,
97 F.3d 561, 563-64 (D.C. Cir. 1996) (internal quotes and
citations omitted). Our review is deferential and draws no
distinction between direct and circumstantial evidence. Unit-
ed States v. Moore, 104 F.3d 377, 381 (D.C. Cir. 1997);
United States v. Harrison, 931 F.2d 65, 71 (D.C. Cir. 1991).
Because the gun was not found on Toms's person, the
government's case necessarily rested on a theory of construc-
tive possession. In order for the government to prove that
Toms constructively possessed the gun discovered in the
Land Cruiser, it needed to establish that he "knowingly [was]
in a position to exercise dominion and control over the object
possessed, either personally or through others." Harrison,
931 F.2d at 71; see also Brown v. United States, 546 A.2d
390, 394 (D.C. 1988). The government offers two theories as
to Toms's knowledge. First, it contends that the jury's
return of a verdict of guilty as to the section 924(c) charge
must necessarily be interpreted to mean that the jury dis-
credited Toms's testimony that he knew nothing of the gun
and instead found that he knowingly possessed it. Second,
the government argues that the jury could infer knowledge
by looking to the evidence that Toms and Bradley were
involved in an ongoing drug-selling operation and concluding
that Toms therefore controlled the gun either directly or
through Bradley. The first of these arguments is not a
sufficient basis upon which to affirm Toms's conviction. In
United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993), we
declined to allow the jury's discrediting of the defendant's
testimony to make up for a shortfall in the sufficiency of the
government's evidence. "There is no principled way of decid-
ing," we noted, "when the government's proof, less than
enough to sustain the conviction, is nevertheless enough to
allow adding negative inferences from the defendant's testi-
mony to fill the gaps." Id. at 850. To be sure, the jury is
free to discredit any witness before it on the stand and even
to believe the exact opposite of the matter to which the
witness has testified. Our review as an appellate court,
however, would be frustrated if we were to allow such dis-
crediting to constitute an essential part of the government's
case--we cannot tell, from the lifeless words on the printed
page of the transcript, whether the testimony memorialized
therein is worthy of belief. The government therefore cannot
rely on the jury's discrediting of Toms's testimony to prove
an element of its case.
The government's second argument, however, ultimately
proves more compelling, although viewed as an argument for
co-conspirator liability--that because Toms was engaged in a
drug distribution conspiracy, he is responsible for any acts
committed by his co-conspirators in furtherance of the con-
spiracy, see, e.g., Pinkerton v. United States, 328 U.S. 640,
646-48 (1946)--it fails. As the indictment makes clear, and
as the government concedes, the gun charges stemmed only
from the September 10th incident and were not predicated on
the conspiracy. In order for it to obtain a conviction on the
gun charges, then, the government had to present evidence
that could lead a jury to conclude that Toms himself was
aware of the presence of the gun in the car, not simply that
he was involved in a conspiracy with the person under whom
the gun was found. Cf. In re Sealed Case (Sentencing
Guidelines' "Safety Valve"), 105 F.3d 1460, 1464-65 (D.C. Cir.
1997) ("Linking participation in an ongoing drug trafficking
enterprise to constructive possession of a gun requires an
additional inferential step, one that we think should not be
made ... without some additional evidence supporting that
step.").
As the second prong of the government's argument sug-
gests, however, there was sufficient evidence of Toms's drug-
selling activities such that the jury could have concluded that
Toms was aware of the gun's presence in the Land Cruiser on
September 10th and thus constructively possessed the gun.11
As we have noted elsewhere, although "mere proximity" to a
gun is insufficient to establish constructive possession, evi-
dence of an additional factor establishing that the defendant
was in a position to exercise dominion or control over the
gun--" 'including connection with a gun [or] proof of mo-
tive' "--coupled with proximity may be sufficient. Moore, 104
F.3d at 381 (quoting United States v. Gibbs, 904 F.2d 52, 56
(D.C. Cir. 1990)); see also United States v. Jenkins, 981 F.2d
1281, 1283 (D.C. Cir. 1992). Where, as here, the gun is found
in a place occupied by more than one person, the sufficiency
of the evidence analysis depends on whether the evidence
plausibly suggests " 'the likelihood that in some discernible
fashion the accused had a substantial voice vis--vis the
[gun].' " United States v. Foster, 783 F.2d 1087, 1089 (D.C.
Cir. 1986) (quoting United States v. Staten, 581 F.2d 878, 884
(D.C. Cir. 1978)) (emphasis in Foster).
The government introduced evidence both as to connection
and as to motive to show that Toms, because of his drug
activities, was accustomed to keeping a gun nearby for pro-
tection. Thomas, for example, one of Toms's co-conspirators,
testified that he had seen Toms carrying a gun "[a] lot of
times" and that Toms often kept a gun hidden in his car. Tr.
1/13/95 at 139. In addition, the wealth of testimony that
connected Toms to drug dealing--credited by the jury in its
conviction of Toms for the conspiracy as well as for the drugs
recovered from the Land Cruiser--provided a motive for
Toms to have a gun close at hand, namely, protection of the
__________
11 Toms did not challenge the admissibility of this evidence during
the trial, nor does he do so on appeal. In any event, although Rule
404(b) of the Federal Rules of Evidence prohibits the admission of
"other crimes, wrongs, or acts ... to prove the character of a
person in order to show action in conformity therewith," the rule
permits such evidence to prove, among other things, intent, knowl-
edge, and motive. Toms put his knowledge at issue in the case
when he testified that he did not know that the pistol was in the car.
drugs and money in the car.12 Admittedly, the government's
case was not as overwhelming as it would have been had the
gun been located under Toms's seat or on his person rather
than on Bradley's seat; we have noted that "[o]ther factors
being equal, it is less likely that one exercises a right of
control over an item physically held by another than over an
item in some common area readily accessible to all present."
Harrison, 931 F.2d at 72. Nonetheless, given the evidence
presented, the jury was entitled to conclude that despite the
fact that the gun was found where Bradley had been sitting,
it was there for Toms's benefit--in other words, that Toms
knew of the gun's presence and intended to use it, or direct
that it be used, should it become necessary to do so. We
reached much the same conclusion in Harrison, which also
involved the discovery of guns and drugs in a vehicle stopped
by the police. Although the only guns recovered in that case
were found on the persons of the other occupants of the
vehicle, we held that because the jury found that the defen-
dant intended to distribute the drugs recovered from the
vehicle, the jury could reasonably have concluded that if it
became necessary, the defendant would either "use one of his
confederates' guns to shoot back, or else instruct one of them
to do so"--in other words, the jury could have inferred that
the defendant had " 'some appreciable ability to guide the
destiny' of the weapons." Id. at 73 (quoting Staten, 581 F.2d
at 883). We see no reason to reach a different conclusion in
this case.
Because the record is clear on the sufficiency of the evi-
dence to support the weapon charges, we need not remand
for further factfinding on the adequacy of trial counsel.
__________
12 To be clear on this point: This evidence was not introduced to
show that because Toms had carried a gun on other occasions or
because he had dealt drugs, he was the type of person who would
carry a gun on the date in question; admission for this purpose is
specifically forbidden by the first part of Rule 404(b) of the Federal
Rules of Evidence. Rather, the evidence was introduced to show
intent, motive, knowledge and/or absence of mistake with respect to
the gun found in the Land Cruiser. Admission for these purposes
is permitted under the second part of Rule 404(b).
Considering the evidence presented at trial in the light most
favorable to the government, we conclude that there was
sufficient--although not overwhelming--evidence to convict
Toms on the section 924(c) and section 22-3204(a) charges.
B. Expert Opinion Testimony
As part of its case-in-chief, the government called Johnny
St. Valentine Brown, an officer with the Metropolitan Police
Department, as an expert in the distribution schemes of illicit
drugs.13 The prosecutor then posed the following hypotheti-
cal, the facts of which mirrored the September 10th incident:
Now, assume a person is driving in a vehicle, and is
pulled over for driving recklessly, Detective Brown, and
when the passenger in that vehicle is pulled out, he is
found to be sitting on a gun. Now, assume later 67
grams of crack are found under the rear seat, over $8,000
is found in the air conditioning vents, and the driver of
the vehicle has $2,000 on his person. What would be the
relationship there between, let's say, the gun and the
drugs and the roles of these various individuals?
Tr. 1/20/95 at 99. At this point, defense counsel objected,
stating, "I note an objection to ultimate conclusion; don't
object to what it could be." His objection was overruled. Id.Brown then responded:
In my opinion, the individual sitting on the gun, that
individual in that particular instance is the enforcer.
That is the reason he's sitting on that gun. The individu-
al operating the vehicle in that situation would be the
supplier of those substances. This individual is this
supplier's enforcer. So again, guns and drugs go hand in
hand, and of [course], the way in which drugs are trans-
ported is by various modes of transportation such as
cars, vans and the like. So to find drugs in the vehicle,
__________
13 As we have often noted, the modus operandi of drug dealers is
a suitable topic for expert testimony because it is "not within the
common knowledge of the average juror." United States v. Boney,
977 F.2d 624, 628 (D.C. Cir. 1992).
an individual possessing a weapon, and monies, that's
pretty much standard par for the course.
Id. Toms now argues that the district court improperly
admitted the testimony of Officer Brown under Rule 704(b) of
the Federal Rules of Evidence. Rule 704(b) provides:
No expert witness testifying with respect to the mental
state or condition of a defendant in a criminal case may
state an opinion or inference as to whether the defendant
did or did not have the mental state or condition consti-
tuting an element of the crime charged or of a defense
thereto. Such ultimate issues are matters for the trier of
fact alone.
Toms contends that because the hypothetical posed to Brown
mirrored the facts of the September 10th incident, Brown's
testimony that the driver was the "supplier" and that the
passenger was the "enforcer" constituted impermissible testi-
mony as to Toms's mental state--specifically, his intent to
distribute the drugs found in the car and his knowledge as to
the presence of the gun. The government, however, argues
that Brown testified only to the modus operandi of a typical
drug operation and the roles of the individuals involved in
such an operation and therefore did not encroach on the
realm of impermissible testimony adverted to in Rule 704(b).
We should note, to begin, that we have several times
disapproved of the method of questioning used by the govern-
ment in this case. Although in earlier cases we held that an
expert is permitted to state "that certain conduct fits a
specific role in a criminal enterprise--even though the con-
duct described exactly parallels conduct that other evidence
explicitly links to a defendant," United States v. Mitchell, 996
F.2d 419, 422 (D.C. Cir. 1993), we have more recently,
beginning in 1995, recognized that mirroring hypotheticals
often present " 'a line that expert witnesses may not cross.' "
United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995)
(quoting Mitchell, 996 F.2d at 422). The danger, as we noted
in Boyd, is that even when an expert does not explicitly
identify the defendant in her answer, her testimony in re-
sponse to such a hypothetical will suggest that the expert
possesses knowledge of the defendant's mental state, which
may be used by a jury "to cure the ambiguity that they face."
Id. at 672. Because it is the job of the jury to decide whether
a defendant has a particular mental state, such mirroring
hypotheticals often violate Rule 704(b): Although framed as a
hypothetical, they call for the expert essentially to testify as
to the mental state of the defendant.
We review a trial judge's admission of evidence for abuse of
discretion. Smart, 98 F.3d at 1386. Moreover, as we noted
in Smart, we consider
two key elements in deciding whether expert testimony
violates Rule 704(b): (1) the language used by the ques-
tioner and/or the expert, including use of the actual word
"intent" and (2) whether the context of the testimony
makes clear to the jury that the opinion is based on
knowledge of general criminal practices, rather than
some special knowledge of the defendant's mental pro-
cesses.
Id. at 1388 (internal quotes omitted). Although, as in so
many cases involving expert witnesses on drug distribution,
the question is close, we conclude that the admission of
Officer Brown's testimony here did not violate Rule 704(b).
To begin with, Toms's trial took place in January 1995; at
that time, we had not yet issued our opinion in Boyd, which
clearly held that such mirroring hypotheticals were impermis-
sible.14 Second, this case can be distinguished from recent
cases involving the same issue in that neither the question
posed to Officer Brown nor his answer referred explicitly to
intent. By contrast, in most of our previous cases warning
about the danger of mirroring hypotheticals, the question
concluding each hypothetical was clearly intended to elicit
__________
14 We trust that we can rely on government counsel's representa-
tion that the end of the line is in sight as far as appellate review of
this litigation strategy is concerned. Boyd was decided four months
after the trial in this case, and government counsel assured us at
oral argument that the government no longer asks mirroring hypo-
theticals of its expert witnesses in drug cases.
testimony as to the defendant's intent. In Boyd, for example,
the mirroring hypothetical was followed by a question asking
the expert whether, in his opinion, "that person's possession
of the mixture or substance [is] possession for personal use or
is it consistent with possession with intent to distribute?"
Boyd, 55 F.3d at 670. Similarly, in Mitchell, both the prose-
cutor's question and the expert's response contained the word
"intent." See Mitchell, 996 F.2d at 422.
It is not necessary, of course, that the precise word "intent"
be used for a Rule 704(b) violation to occur. We held in
Smart, for example, that an expert's testimony, in response to
a mirroring hypothetical, that the individual "met the ele-
ments" was impermissible because the legal connotations of
the word "elements" could easily have led the jury to inter-
pret the word to refer to statutory elements--in other words,
that the individual possessed the necessary intent to distrib-
ute. Smart, 98 F.3d at 1387-89. In this case, however,
neither the question asked nor the answer given crossed
Smart's line of impermissibility. The government asked
Brown for his opinion as to the "relationship" between the
people mentioned in the hypothetical; Brown's answer--in
which he identified the driver as the "supplier" and the
passenger as the "enforcer"--was responsive to this question
without purporting to describe Toms's intent. Indeed, in the
remainder of his answer, Brown testified that guns, drugs,
and large amounts of money were typically found in tandem.
In context, then, his testimony as to the roles of the people in
the car is more properly viewed as testimony on the elements
of a drug operation, based on "knowledge of general criminal
practices," rather than an opinion on the intent of the individ-
uals described. We thus hold that Officer Brown's testimony
did not violate Rule 704(b) and affirm Toms's convictions.
C. Toms's Sentence
Finally, Toms argues that it was error for the district court
to sentence him based on the testimony of Thomas who, Toms
contends, was an unreliable witness. As a result of this
error, Toms argues, he was ultimately sentenced for more
than ten times the amount of drugs alleged in the indictment
and more than forty times the amount for which he was
convicted as a result of the September 10th traffic stop.
Our review of the district court's sentence is guided largely
by our decision in United States v. Lam Kwong-Wah, 966
F.2d 682 (D.C. Cir. 1992). In Lam, we noted that in United
States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), this circuit
had joined the majority of other circuits in holding that
because the quantity of drugs involved in a conspiracy or
distribution charge "is not a basic element of the offense," its
determination is relevant only to the issue of punishment and
thus is "a sentencing factor to be determined by the judge."
Lam, 966 F.2d at 685 (citing cases). Toms does not dispute
this conclusion but argues that because his case constituted
an "extraordinary upward departure," Lam requires that the
judge's factual determinations be supported by clear and
convincing evidence, rather than by simply a preponderance
of the evidence.
While we acknowledged in Lam the possibility that "ex-
traordinary circumstances" might call for the application of a
higher standard, we concluded that no such circumstances
were present in Lam's case. Lam, 966 F.2d at 688. Lam
had been convicted of conspiracy to distribute heroin; the
district court, concluding that Lam "knew or reasonably could
have foreseen" that 3.4 kilograms were slated for the first
delivery, id. at 685, based Lam's sentence on that amount. In
rejecting Lam's claim that a higher standard of proof was
required in his case due to the impact of that finding on his
sentence, we distinguished United States v. Kikumura, 918
F.2d 1084 (3d Cir. 1990), in which the Third Circuit required
a heightened burden of proof, by noting that while Kikumu-
ra's sentence was based in part on conduct for which he was
not charged (namely, terrorist acts), Lam's sentence "was
determined solely on the basis of conduct of which he was
actually convicted"--the conspiracy to distribute heroin.
Lam, 966 F.2d at 687-88. We also noted that Lam's counsel
had conceded that Lam had scienter as to enough heroin to
support a base offense level of 28; the 3.4 kilogram quantity
assigned him a base offense level of 34. "While a six-level
increase [was] not insignificant," we noted, it did not present
the "enormous" twenty-two level disparity involved in Kiku-
mura that warranted the satisfaction of a higher burden of
proof. Id. at 688.
The circumstances of Toms's case are virtually indistin-
guishable from Lam's. As in Lam, Toms's sentence was
determined "solely on the basis of conduct of which he was
actually convicted"--the conspiracy to distribute and possess
with intent to distribute 50 grams or more of cocaine base.
Moreover, Toms concedes that he was convicted of possession
with intent to distribute of 67.8 grams (the amount retrieved
from the Land Cruiser), a conviction that yields a base level
of 32. The 2.8 kilogram amount found by the district judge
yields a base level of 38--as in Lam, a six-level difference.
Given the parallel between these two cases, we can see no
reason to conclude that Toms's case, unlike Lam's, requires
application of a clear and convincing evidence standard.
Toms next argues that the district court's reliance on
Thomas's testimony was reversible error. He contends that
Thomas's estimate of the amount of cocaine base he had
received from Toms was inconsistent with other portions of
his testimony--for example, the amount of money Thomas
stated that he, as a dealer, had made during the course of the
conspiracy15--and that Thomas admitted on the stand that
certain statements he had previously made to an undercover
officer were untrue.16 Given these indicia of unreliability,
Toms argues, the district court erred in using Thomas's
testimony as the basis for determining Toms's sentence.
We noted in Lam that in reviewing factual determinations
supporting a Guidelines sentence, we give substantial defer-
ence to the findings of the district court. Lam, 966 F.2d at
__________
15 Thomas testified that he did not make more than $20,000 over
the course of the conspiracy, see Tr. 1/13/95 at 174, although he
later testified that he could not estimate the amount.
16 Thomas admitted that he had previously lied to the officer
about whether he had any drugs available for sale. See Tr. 1/13/95
at 165.
688. We reverse the district court's conclusions "only if we
are left with a definite and firm conviction that it is mistaken"
and give full recognition to the fact that determining credibili-
ty and weighing evidence is a job for the factfinder, not for
this court on review. Id. at 689 (internal quotes omitted). In
light of these principles, we reject Toms's challenge. In its
memorandum opinion denying Toms's motion, the district
court found Thomas to be a credible witness for several
reasons. First, the court noted that Thomas had told a
cooperating witness and an undercover officer in mid-1993
about the amount of drugs Toms could supply him for sale, a
point in time before Thomas was himself charged with any
crime and thus might have had a reason to shift the blame to
another participant. Thomas's information proved to be accu-
rate when the witness and the undercover officer successfully
purchased 84.58 grams of cocaine base from him. Second,
the court noted that future attempts by the undercover
officer to purchase drugs from Thomas after Toms was
arrested were unsuccessful, further lending credibility to
Thomas's testimony that Toms was his supplier. And finally,
the court noted that additional evidence presented at trial,
including a tally sheet found on Toms's person, bolstered
Thomas's credibility as to the amount of drugs involved in the
conspiracy. Toms, for his part, does not point to any evi-
dence in the record that directly contradicts Thomas's testi-
mony as to the amount of drugs involved; rather, he simply
asserts that Thomas was not to be believed given the doubtful
nature of some of his other testimony. Whether that testimo-
ny--or, indeed, any of Thomas's testimony--was open to
question, however, is not for us to decide, given that Thomas's
credibility can be assessed only by judging his demeanor on
the witness stand. As we have already noted, such a determi-
nation in a sentencing proceeding properly belongs to the
district court that participated in the trial, and we see no
reason in this case to disturb its judgment.17
__________
17 In fact, it is not inconceivable that, given the illegitimacy of the
drug trade, Thomas would be unable to estimate the amount of
money he had made from drug dealing; nor is it surprising that he
would at times be reluctant to inform a potential customer and/or
III. Conclusion
Because we reject Toms's challenges to the sufficiency of
the evidence presented at trial, the expert testimony, and his
sentence, we affirm his convictions and his sentence.
It is so ordered.
__________
rival of the extent of his supply. In any event, neither statement on
its face provides sufficient reason to doubt the veracity of the
remainder of Thomas's testimony.