United States v. Carmichael ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4839
GLENN CARMICHAEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-96-183-A)
Argued: April 10, 1998
Decided: July 14, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Matthew Anthony Rizzo, NIKELSBERG & RIZZO,
P.C., Fairfax, Virginia, for Appellant. James Michael Byrne, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Kath-
erine M. Kelly, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Defendant-appellant Glenn Carmichael appeals his convictions and
sentence on charges of distributing illegal drugs. For the reasons that
follow, we affirm.
I.
Defendant-appellant Glenn Carmichael drove to the Lorton Refor-
matory Correctional Complex to visit an inmate. Along the way, he
purchased two $5 bags of marihuana, smoked the contents of one bag,
and placed the other inside his shoe. When appellant arrived at Lor-
ton, he signed in as a visitor, and was escorted to the "shakedown
room." At that time, like other visitors to Lorton, he was instructed
to remove his shoes and to take the belongings out of his pants pock-
ets. Predictably, the prison official conducting the"shakedown" of
Carmichael discovered the hidden bag of marihuana in his shoe, a bag
containing 1.256 grams of marihuana. Carmichael was taken into cus-
tody and charged with possessing marihuana with intent to distribute
in violation of 21 U.S.C. § 841(a)(1), and introducing or attempting
to introduce into or upon the grounds of a penal institution of the Dis-
trict of Columbia marihuana in violation of D.C. Code § 22-2603. At
trial, Carmichael's defense was that he only placed the marihuana in
his shoe for safekeeping, that he forgot it was there by the time he
arrived at Lorton, and that he did not intend to distribute the mari-
huana at Lorton prison. After a jury trial, Carmichael was convicted
of both counts, and subsequently sentenced to 51 months of imprison-
ment.
II.
Carmichael raises the following challenges to his convictions and
sentence: that the district court improperly permitted the government
2
to introduce evidence of appellant's prior drug distribution convic-
tions; that he was denied due process of law when the government
asked a question at trial regarding his stale 1983 drug conviction; that
the government's expert witness improperly testified that Carmichael
intended to smuggle marihuana into Lorton; that the district court
improperly denied his motion for a continuance; that the district court
improperly prevented him from introducing evidence regarding cor-
rections officers who smuggled drugs into Lorton prison; that the dis-
trict court lacked subject matter jurisdiction over the count in the
indictment based on District of Columbia law; and that the district
court erroneously failed to sentence under the more lenient "small
amount of marihuana" exception to 21 U.S.C. § 841(a). We reject all
of these claims.
A.
First, appellant, who testified at trial in his own defense, challenges
the district court's ruling permitting the government to impeach his
testimony with questions about his prior 1988 and 1992 felony con-
victions for possession with intent to distribute cocaine. Under Rule
609(a)(1), evidence that a witness who stands accused has been con-
victed of a felony shall be admitted for the purpose of attacking the
witnesses' credibility "if the court determines that the probative value
of admitting this evidence outweighs its prejudicial effect to the
accused." Fed. Rule Evid. 609(a)(1).
Here, the district court conducted the appropriate inquiry under
Rule 609(a)(1). It concluded that the evidence of appellant's prior
cocaine convictions was probative because it attacked appellant's
credibility as a general matter, J.A. at 162, and also because it tended
to impeach appellant's specific testimony that he only brought the
marihuana into Lorton unintentionally. J.A. at 162. The court also
found little likelihood of prejudice to the appellant because the prior
crimes were sufficiently dissimilar to the charged offenses (crack ver-
sus marihuana) and remote in time from those charged offenses (four
to eight years old) to reduce the likelihood that the jury would auto-
matically convict the appellant simply because of his prior convic-
tions. J.A. at 160. Finally, the court concluded that the probative value
of the prior conviction evidence outweighed its prejudicial effect, and
it also gave the jury a cautionary instruction that further reduced the
3
chance that the jury might use the impeachment evidence for an
impermissible purpose. J.A. at 220. The district court did not abuse
its discretion when it undertook this inquiry and permitted this evi-
dence to be introduced at trial.
Our resolution of this issue is virtually controlled by United States
v. Leavis, 853 F.2d 215 (4th Cir. 1988). In that case, the defendant,
who testified at trial, was charged with conspiracy to smuggle
cocaine, and the trial court permitted the government to question the
defendant about a prior felony conviction for marihuana possession.
We held that questioning to be proper and insufficiently prejudicial
because the prior conviction evidence was introduced to rebut the
impression left by the defendant's testimony that he had no prior con-
tact with drugs or drug dealers. Similarly, here, appellant testified that
his act of introducing marihuana into the prison was an unintentional
and honest mistake, and, "[t]he prosecution was entitled, as the dis-
trict court held, to rebut the false impression[appellant] was creating
by his testimony" by showing that appellant was in fact aware of drug
distribution methods and that it would be unlikely for him to smuggle
illegal drugs into a prison accidentally. Id. at 220. Cf. Fed. Rule Evid.
404(b) (evidence of defendant's other bad acts is admissible for the
purposes of proving the defendant's "intent . . . or absence of mistake
or accident").
Appellant, however, contends that the impeaching offenses here
were so factually similar to the charged offenses that, under United
States v. Saunders, 964 F.2d 295 (4th Cir. 1992), the prejudicial effect
of such evidence is necessarily outweighed by its probative value. In
Saunders, however, the impeaching conviction"had little bearing on
[the defendant's] propensity to tell the truth," id. at 298, but was only
introduced for the purpose of attacking the defendant's general credi-
bility as a felon, whereas here, appellant's prior convictions were
introduced to contradict the impression created by the appellant's spe-
cific testimony professing a lack of intent to distribute drugs. Addi-
tionally, in Sanders, we remarked that it was "unclear whether and
how the district court may have sought to balance the probative value
of [the] evidence against its prejudicial effect" because of the district
court's conclusory ruling without explanation. Id. at 298. In contrast,
the district court here specifically identified the appropriate factors in
the Rule 609(a)(1) balancing inquiry and exercised its discretion in
4
applying those factors to the facts of this case. And, finally, the
impeaching offenses here were not identical to the charged offenses,
and were sufficiently dissimilar so as to lessen the risk of undue
prejudice.1
Although the district court below allowed the prior conviction evi-
dence under Rule 609, this evidence was also admissible under Rules
403 and 404(b). The government introduced evidence of Carmich-
ael's prior convictions for the purpose of proving that he intended to
introduce illegal drugs into Lorton prison at the time of the charged
conduct and that he did not mistakenly bring the marihuana into the
prison, J.A. at 161, and, under Rule 404(b), evidence of a defendant's
prior convictions is admissible for the purpose of proving the defen-
dant's "intent . . . or absence of mistake or accident." Fed. Rule Evid.
404(b). The probative value of this evidence was also not "substan-
tially outweighed by the danger of unfair prejudice," Fed. Rule Evid.
403, especially in light of the curative jury instruction given by the
district court. J.A. at 220.
B.
Appellant contends that he was denied due process of law when the
government asked him during cross-examination about a stale 1983
conviction for selling drugs. Appellant's trial counsel, however,
lodged an immediate objection to this question on the grounds that the
1983 conviction was stale, and that objection was sustained. J.A. at
177-78. Furthermore, the defendant did not answer the objected-to
question, and the government's line of questioning ceased immedi-
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1 Indeed, the appellant concedes as much. For, although he argues as
it relates to Rule 609(a)(1) that his two prior cocaine offenses were iden-
tical to his charged offenses of marihuana distribution, elsewhere, and in
response to the alternative argument that the prior convictions are admis-
sible under Rule 404(b) to prove lack of mistake, appellant argues that
the prior offenses are not "related in any way to the facts of this case"
because they "involved a completely different type of drug, crack
cocaine, in a wholly distinct context, street distribution." Br. of Appellant
at 11 (emphases added). Thus, by appellant's own admission, his prior
convictions were significantly dissimilar to the charged offenses at issue
here.
5
ately after the court sustained the objection. Id. The court also
instructed the jury to base its verdict only upon the evidence in the
case, and it also instructed them that not to consider as evidence "facts
contained in a question to which an objection was sustained." J.A. at
219. Thus, because the stale conviction was never introduced into evi-
dence, because the jury was instructed to disregard it, and because we
must presume, absent some showing or argument to the contrary, that
juries follow instructions, appellant has not established that his trial
was so fundamentally unfair or prejudicial that it violated due pro-
cess.
C.
Appellant also maintains that the government's expert witness,
Captain Grillo, in violation of Federal Rule of Evidence 704, imper-
missibly testified at trial as to appellant's intent to distribute mari-
huana into Lorton. That rule prohibits an expert witness in a criminal
case from "stat[ing] an opinion or inference as to whether the defen-
dant did or did not have the mental state or condition constituting an
element of the crime charged or of a defense thereto." Fed. Rule Evid.
704. Because appellant did not lodge a contemporaneous objection to
Captain Grillo's trial testimony on these grounds, we review the dis-
trict court's evidentiary ruling for plain error. 2
Captain Grillo, who is an expert in the prison drug trade, testified
at trial that the small amount of drugs found in appellant's shoe, the
wrapping and packaging of those drugs, and the method in which
those drugs were hidden in appellant's shoe, were all consistent with
_________________________________________________________________
2 Appellant did object to Grillo's prospective testimony in a motion in
limine. J.A. at 83. The district court, however, denied that motion after
the government represented to the court that it had no intention of asking
the expert witness at trial to testify as to the defendant's intent at the time
of the shoe incident. The court then instructed the defendant to make a
specific objection at trial if the witness actually testified as to the defen-
dant's intent in violation of Rule 704(b). J.A. at 83. This, appellant did
not do. Thus, appellant failed to lodge a specific and contemporaneous
Rule 704(b) objection to this expert witness' testimony, even though he
was invited to do so by the district court in the event that the witness so
testified. Accordingly, plain error review is appropriate here.
6
a pattern of prison drug smuggling. During the course of this testi-
mony, Captain Grillo did make one or two comments that could be
construed to state an opinion that appellant intended to bring mari-
huana into Lorton. However, after reviewing the entirety of Grillo's
testimony, J.A. at 143-56, and after reading that testimony in light of
Grillo's often-repeated statements that he was not testifying as to
appellant's mental state, see J.A. at 151, 152, 153, 156, we believe the
better interpretation of Grillo's testimony is that he did not state an
opinion or inference as to whether appellant intended to smuggle the
marihuana into Lorton. Rather, in context, the more plausible reading
of Grillo's trial testimony is that Grillo simply testified as to his opin-
ion that appellant's behavior was consistent with that of a prison drug
smuggler. We therefore cannot conclude that the introduction of this
testimony was plain error that "seriously affect[ed] the fairness, integ-
rity or public reputation of judicial proceedings," United States v.
Olano, 507 U.S. 725, 723 (1993), nor, for that matter, could we even
conclude that the admission of such evidence constituted an abuse of
discretion.
D.
Appellant also contends that the district court abused its discretion
by denying appellant's motion for a continuance. On July 1, 1996, an
order was entered by the district court requiring the government to
disclose to the defendant a written summary of expert witness testi-
mony the government intended to use. J.A. at 9-10. On July 11, the
government faxed a letter to defendant announcing the government's
intention to rely upon the expert testimony of Captain Grillo. On July
12, appellant filed a motion in limine in which it moved to prevent
Grillo from testifying as to appellant's intent during the shoe incident.
J.A. at 13-16. On July 17, the morning of the trial, appellant moved
for a continuance so that he might procure an expert witness of his
own to counter Grillo's testimony. Although the district court
expressed its sensitivity to appellant's need for advance notice of
expert witnesses, it concluded that additional delay would not serve
the interests of justice. J.A. at 85. The district court also found that
appellant had every opportunity to procure an expert witness of his
own, but simply failed to avail himself of those opportunities. J.A. at
84.
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Under these circumstances, we cannot conclude that the district
court's refusal to grant the continuance constituted an abuse of discre-
tion or reversible error. The district court quite reasonably could have
been hesitant to grant a motion for continuance filed the morning of
the first day of trial, particularly in light of appellant's other opportu-
nities to procure an expert witness or to argue that the government's
notice was insufficient. In fact, on the day after appellant received
notice of the government's intention to call Grillo as an expert, appel-
lant made a motion regarding Grillo's prospective testimony, and sig-
nificantly, in that very motion, appellant did not argue that he had
been prejudiced by the lateness of the government's notice that it
would call Grillo.
Furthermore, appellant has not established that he was prejudiced
by the denial of the motion for continuance. Appellant has failed to
present this court with anything but speculation as to what his uniden-
tified expert witness would have said, if appellant would have even
found such a witness. And, if appellant were aware of such a witness
who would have testified that 1.256 grams of marihuana is a very
small and insignificant amount of drugs in the prison context and that
such a quantity is unlikely to have been intentionally introduced into
a prison, then appellant had every motivation to obtain such a witness,
and, in all likelihood, appellant would have obtained or attempted to
obtain such a witness regardless of whether the government intended
to call Captain Grillo. Furthermore, appellant's counsel appears to
have conducted a vigorous and successful cross-examination of Grillo
at trial. J.A. at 152-56. Accordingly, appellant has not carried his bur-
den of demonstrating that he was prejudiced by the district court's
denial of his motion for a continuance.
E.
Appellant also contends that the district court abused its discretion
by limiting appellant's proposed testimony regarding drug smuggling
by other correctional officers at Lorton who were not involved in this
case. Along these lines, appellant challenges two rulings made by the
district court: first, granting the government's motion in limine and
thereby preventing appellant from introducing "unrelated incidents of
Lorton correctional officers using and introducing controlled sub-
stances at the prison . . .," J.A. at 23-24, and second, sustaining the
8
government's objection to appellant's trial testimony regarding his
personal knowledge of drug activity at Lorton facility. J.A. at 189.
The district court acted well within its discretion in concluding that
testimony regarding drug smuggling activity of other people not
involved in this case was not relevant to whether appellant intention-
ally brought marihuana into the prison. And, to the extent that such
evidence might have been relevant to appellant's intent to smuggle
marihuana, the district court readily could have concluded that the
probative value of such evidence was far outweighed by the potential
for jury confusion that would result from shifting the focus of the trial
from the defendant's activities to the drug smuggling activity of unre-
lated correctional officers. Thus, appellant has failed to demonstrate
that these two evidentiary rulings amounted to an abuse of discretion,
or otherwise denied him of his right to a fair trial.
F.
Appellant further maintains that the district court, the United States
District Court for the Eastern District of Virginia, lacked subject mat-
ter jurisdiction over the second count in the indictment because that
count was based upon District of Columbia law. Count two of the
indictment, upon which appellant was convicted, alleged a violation
of D.C. Code § 22-2603, which provides in relevant part that:
[a]ny person, not authorized by law . . . who introduces or
attempts to introduce into or upon the grounds of any penal
institution of the District of Columbia, whether located
within the District of Columbia or elsewhere, any narcotic
drug, weapon, or any other contraband article or thing . . .
shall be guilty of a felony, and, upon conviction thereof in
the Superior Court of the District of Columbia or in any
court of the United States, shall be punished by imprison-
ment for not more than 10 years.
D.C. Code § 22-2603 (emphasis added).
Section 2603 is an extraterritorial statute which applies to Lorton
prison, a penal institution of the District of Columbia located within
the Commonwealth of Virginia. Contrary to appellant's suggestion, it
has long been settled that the District Court for the Eastern District
9
of Virginia has subject matter jurisdiction over crimes defined by
extraterritorial District of Columbia laws committed at Lorton prison.
United States v. Young, 916 F.2d 147 (4th Cir. 1990); United States
v. Perez, 488 F.2d 1057 (4th Cir. 1974).
G.
Finally, appellant argues that the district court erred in refusing to
sentence him under the more lenient "small amount of marihuana"
provision of section 841. Appellant was convicted of possession with
intent to distribute marihuana in violation of 21 U.S.C. § 841(a). Sec-
tion 841(b)(4) of that title provides:
. . . any person who violates subsection (a) of this section
by distributing a small amount of marihuana for no remu-
neration shall be treated as provided in section 844 of this
title and section 3607 of Title 18.
21 U.S.C. § 841(b)(4). Section 844 establishes criminal penalties for
simple possession of marihuana. Appellant contends that 1.256 grams
is a very small quantity of marihuana, and that, accordingly, he should
be sentenced under the more lenient provisions of section 841(b)(4)
and section 844.
The district court concluded that 1.256 grams was not a "small
amount" of marihuana within the meaning of section 841(b)(4). In
this conclusion, the court relied upon the trial testimony that, in the
prison context, drug quantities are measured in grams or milligrams
rather than pounds and ounces, that 1.256 grams was a significant
amount of marihuana to be introduced into a prison, and that 1.256
grams of marihuana is an average amount of marihuana to be intro-
duced into Lorton during a smuggling incident. J.A. at 144, 148
(expert witness), 237 (district court). This testimony was uncontro-
verted, and we are unable to conclude that it was reversible error for
the district court to conclude, in light of this evidence, that the 1.256
grams of marihuana was not a "small amount" of marihuana in this
case.
CONCLUSION
For the reasons stated herein, we affirm the judgment of the district
court.
AFFIRMED
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