United States v. Swift , 276 F. App'x 439 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0230n.06
Filed: May 5, 2008
06-1306
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
RONALD EUGENE SWIFT, II, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
PER CURIAM. In this appeal, defendant Ronald Eugene Swift contends that there
was insufficient evidence to sustain the second of his two convictions for distribution of five
or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), that were based on
controlled buys made on February 27, 2004, and March 6, 2004, respectively. He rests
his argument on what appears from the record to be a simple misstatement in the
testimony of the government’s chemist. Swift posits that because the forensic chemist who
tested the substances sold by Swift stated that his lab received both samples on March 1
and because it is uncontroverted that the government did not seize the second sample until
March 6, the district court should have granted his Rule 29 motion with regard to the
second count. Because a rational trier of fact could conclude that the chemist mistakenly
stated that the second sample was received on March 1, but otherwise credit his testimony
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that the substance seized on March 6 was cocaine base, there is sufficient evidence to
support Swift’s conviction on count two. We therefore affirm the district court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After a jury trial, Swift was convicted of two counts of distribution of five or more
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), arising from two separate
controlled buys made by a government informant on February 27 and March 6, 2004,
respectively. The government informant, Ashanti Jackson, made the controlled buys from
the defendant, whom she knew as “Ron-Ron,” in an attempt to secure favorable treatment
for her boyfriend, who had been arrested for distributing crack cocaine.
The testimony at trial established that on February 27 – under the supervision of
DEA agents – Jackson made a controlled buy from Swift of one ounce of crack cocaine.
On March 6, Jackson made a second controlled buy, this time of two ounces of a
substance that Swift represented as, and which appeared to Jackson and officers to be,
crack cocaine. Although Jackson attempted to set up a third buy, she was unable to reach
Swift again. Both buys occurred at or near Swift’s grandmother’s house, and Jackson, as
well as the DEA agents involved, identified Swift as the seller. The government also
presented phone records and an audio recording in support of their case against Swift.
The crack cocaine involved in the February 27 buy was admitted into evidence
without objection as exhibit 101 and that involved in the March 6 buy was admitted into
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evidence without objection as exhibit 107. The DEA agent through whom the exhibits were
admitted, Margo Anderson, specifically testified that exhibit 107 contained “the two ounces
of crack cocaine we purchased on March 6.”
The government’s forensic chemist, Odiest Washington, testified that he had
subjected both exhibits 101 and 107 to various tests and concluded that exhibit 101
contained 22.4 grams of 77 percent pure cocaine base and that exhibit 107 contained 44.4
grams of 73 percent pure cocaine base. The government did not submit Washington’s lab
report into evidence. During cross-examination, Washington testified that both exhibits
were received by his lab on March 1, 2004, that he checked them out of the lab’s evidence
vault on March 10, 2004, and that he ran the tests on March 12, 2004. Defense counsel
did not point out the discrepancy between the March 1 and March 6 dates to the witness
or press him to explain further, and government counsel, who apparently did not catch the
discrepancy, did not attempt to clarify the issue on redirect.
At the close of the government’s evidence, defense counsel made a Rule 29 motion
to dismiss count two “for the failure of the prosecution to present any laboratory analysis
of anything seized on March 6,” stressing the “physical impossibility” that the lab received
exhibit 107 on March 1. The government’s attorney, who was taken by surprise by the
argument concerning a discrepancy in the dates, insisted that any discrepancy went to the
weight of the evidence, not its admissibility, and that there was otherwise sufficient
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evidence to establish that exhibit 107 was seized on March 6 and was indeed crack
cocaine. The district court agreed and denied the motion, explaining:
With respect to whether the exhibit that was obtained was the same
one that was seized, I suppose that could go to the chain of custody although
exhibit 107 was received without objection in this court.
I do believe that the exhibit is properly before the court, and the
witness, Mr. Washington, did testify that it was a controlled substance
consisting of 44.4 grams of 73 percent pure cocaine base.
Consequently, I do think the government has offered evidence from
which a jury could conclude, if believed, the elements of a crime in count 2
beyond a reasonable doubt. And I tend to agree with the observation that
the discrepancy goes to the weight and not the admissibility; it’s certainly a
point for argument but not one that I believe would preclude the jury from
making an assessment and considering the count.
After the court denied his Rule 29 motion, the defendant rested without offering any
evidence. In closing argument, defense counsel focused on the March 1 – March 6
discrepancy, but the jury convicted on both counts, apparently concluding that the
discrepancy in the dates was a mistake or misstatement on the part of the chemist, but that
his testimony that exhibit 107 was cocaine base was otherwise credible, as was
Anderson’s testimony that exhibit 107 constituted the purported contraband sold by the
defendant on March 6. This conclusion is in line with an instruction given to the jury
regarding consideration of witnesses’ testimony, which read in pertinent part, “[i]t is up to
you to decide if a witness’ testimony was believable and how much weight you think it
deserves. You are free to believe everything that a witness said or only part of it, or none
of it at all.” The defendant received a sentence of 180 months.
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Swift now appeals the denial of his Rule 29 motion. He contests only the narrow
issue of whether, as a matter of law, because of the discrepancy in dates and the
purported lack of a lab report concerning the second controlled buy, there was insufficient
evidence that the March 6 substance was cocaine base. He does not otherwise question
the sufficiency of the evidence supporting either count one or the other elements of count
two.
DISCUSSION
We review de novo a district court’s denial of a Rule 29 motion. See United States
v. Talley, 194 F.3d 758, 764 (6th Cir. 1999). The relevant inquiry is “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Circumstantial evidence may
satisfy the standard, and the evidence need not be such that it excludes every reasonable
hypothesis except that of guilt. See United States v. Hill, 142 F.3d 305, 311 (6th Cir. 1998)
(internal quotation marks and citation omitted).
Swift contends that “from this record we cannot know the identity of the substance
police seized on March 6, 2004.” He correctly acknowledges that case law supports the
conclusion that the lack of a lab report is not dispositive. See United States v. Schrock,
855 F.2d 327, 334 (6th Cir. 1988) (“To our knowledge, no court has held that scientific
identification of a substance is an absolute prerequisite to conviction for a drug-related
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offense, and we too are unwilling to announce such a rule.”); United States v. Covington,
133 F.3d 639, 644 (8th Cir. 1998) (“It is well established that the identity of a controlled
substance can . . . be proved by circumstantial evidence and opinion testimony.”) (internal
quotation marks and citation omitted); United States v. Sanapaw, 366 F.3d 492, 496 (7th
Cir. 2004) (“[N]either expert testimony nor a chemical test of the substance sold is required
to prove distribution of a controlled substance.”).
Swift is incorrect, however, in his assertion that Washington’s testimony was “fatally
flawed,” a proposition for which he offers no authority. Viewing the testimony in the light
most favorable to the government, as we must in a sufficiency challenge, a logical
explanation for the discrepancy in the dates is that Washington was simply mistaken about
when the second sample reached his lab, perhaps confusing the actual date of receipt with
the date on which the first sample arrived, a rational conclusion the trier of fact would be
entitled to draw from the whole of the evidence presented. See Sixth Circuit Criminal
Pattern Jury Instruction 1.07- Credibility of Witnesses (“You are free to believe everything
that a witness said, or only part of it, or none of it at all. . . . [I]f you believe that the witness
was inconsistent . . . [a]sk yourself if it seemed like an innocent mistake. . . .”). And,
despite Swift’s assertion that Washington’s misstatement left the jury with no evidence
upon which to conclude that exhibit 107 was the substance seized on March 6 and that it
was indeed crack cocaine, Anderson’s testimony that exhibit 107 contained “the two
ounces of crack cocaine we purchased on March 6,” combined with Washington’s
testimony that exhibit 107 was 73 percent pure crack cocaine base, provided the jury
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sufficient evidence from which to conclude that the substance in question was seized on
March 6 and was crack cocaine, as alleged in the indictment.
CONCLUSION
For the reasons set out above, we conclude that the district court did not err in
denying the defendant’s Rule 29 motion and, therefore, we AFFIRM the judgment of
conviction.
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