United States v. Andre Lamont Brown ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2648
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Andre Lamont Brown, *
*
Defendant - Appellant. *
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Submitted: December 10, 1996
Filed: April 7, 1997
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Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Andre Lamont Brown appeals from his conviction of possessing cocaine
with the intent to distribute in violation of 21 U.S.C. § 841(a)(1)
(1994). He contends his conviction should be reversed because the district
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court erred in admitting hearsay and opinion testimony. He also argues
that reversible error occurred based on the district court’s exclusion of
evidence about Minnesota state law. We affirm.
1
The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota.
The Minneapolis Narcotics Unit received information from a
confidential informant that an individual was distributing large quantities
of crack cocaine in the Minneapolis-St. Paul area, and that a delivery was
planned at an auto body shop on November 15, 1995. The individual was
described as a young black man in his early twenties, who went by the
nickname “Dre”, and who drove a black Cutlass-type car. Brown used the
nickname “Dre”.
Based on this information, eight to ten police officers set up
surveillance near the auto body shop on November 15. At about 4:30 p.m.,
the officers saw Brown arrive at the body shop in a black or dark-colored
Monte Carlo. Brown got out of the car, went into the body shop and, after
about thirty minutes, returned to the car. From there, Brown drove to
downtown Minneapolis, where he picked up a woman, later identified as
Demetra Hayes. The officers followed Brown and Hayes to Robbinsdale, where
Brown stopped at a house. Brown got out of the car, leaving the engine
running and Hayes in the car while he went inside the house for a minute
or two. Officer Holland, a narcotics investigator, testified that Brown’s
actions were consistent with a drug delivery.
Brown and Hayes then went to a Wal-Mart and a Target store where they
purchased some household items before going to the Heritage Hills apartment
complex. Holland testified that she heard one of the surveillance officers
state over the radio that Brown and Hayes got out of the car and Brown used
a key to enter the security door of the apartment complex. Holland further
testified that one of the surveillance officers radioed that she saw the
lights turn on in a third-floor apartment, saw Brown and Hayes walking
around the apartment, and saw Brown go out onto the balcony to use a
cellular phone.
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Brown and Hayes left the apartment about 10:40 p.m., and Brown
dropped Hayes off at a house in North Minneapolis. After driving a few
more blocks, Brown pulled over to the curb, shut off his lights, and lost
the police surveillance. A short time later, the officers were able to
find Brown, who was driving with his lights off. The officers stopped
Brown’s car. Holland testified that Brown's actions were consistent with
someone engaging in counter-surveillance activities and with “someone
throwing something out the window and trying to get rid of it and then
eventually coming back to retrieve it.”
Holland arrested Brown and advised him of his Miranda rights.
Holland questioned Brown and testified that Brown was “very evasive [about]
where he had come from and where he was going to.” Brown initially told
Holland that he had not been to the apartment, but when Holland told him
that she had seen him there, he admitted that he had been there. Another
officer at the scene of the arrest, Sergeant Hauglid, testified that Brown
did not refer to the apartment until told that he had been seen there.
Hauglid testified that Brown stated that he had been to the apartment, but
Brown denied that it was his apartment. Brown explained that the apartment
belonged to Melva Conner, and that she had given him a key to the
apartment. Holland testified that she had a “gut feeling” that the
Heritage Hills apartment was probably a “stash house.”
Holland testified that Brown orally consented to the search of the
Heritage Hills apartment, and signed a consent form. The officers and
Brown then returned to the apartment. Brown's key was used to open the
apartment. The apartment had no furniture, and the officers found three
packages of crack cocaine inside the kitchen cupboards and a scale on top
of a kitchen cupboard.
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Holland testified that she interviewed Brown outside the presence of the
other officers for “privacy purposes.” Holland testified that Brown told
her that he had brought the drugs back from Chicago two days before and
that he had not yet sold any. Brown testified that he never admitted to
Holland that the drugs were his, that he was selling the drugs, or that he
had brought drugs back from Chicago. There was no tape recording or
written statement of Brown’s admission. Brown also consented to the search
of his apartment. Officers retrieved $3,000 in cash and three cellular
telephones during the search of his apartment.
Brown was convicted, and he now appeals.
I.
Brown’s chief complaint on appeal is with the district court’s
admission of hearsay and opinion testimony. In particular, Brown contends
that the court erred in allowing Holland to testify: that a confidential
informant told her that an individual named “Dre” was distributing large
amounts of crack cocaine; that she had learned from the apartment manager
that Brown had been to the apartment before; and that she believed that
Brown had “control” of the apartment. He also argues that it was error to
allow Holland to testify that someone told her that the items purchased at
Wal-Mart and Target, “were the tastes of Mr. Brown.” Brown contends that
the evidence was inadmissible hearsay under the Federal Rules of Evidence,
and that its admission violated his right to confrontation under the Sixth
Amendment.
We give substantial deference to the district court’s evidentiary
rulings and will find error only if the district court clearly abused its
discretion. See United States v. King, 36 F.3d
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728, 732 (8th Cir. 1994), cert. denied, 115 S. Ct. 954 (1995). Even if the
district court erred in admitting evidence, we will not reverse if the
error is harmless.2 See United States v. Mitchell, 31 F.3d 628, 632 (8th
Cir. 1994).
In United States v. Azure, 845 F.2d 1503 (8th Cir. 1988), a victim
of sexual abuse identified the perpetrator to a social worker. See id. at
1506. At trial, the social worker testified that the victim identified the
defendant as the person who had sexually abused her. See id. The
government argued that the social worker's testimony was not hearsay
because it was not offered to prove that the defendant was the perpetrator
of the crime, but to explain why the investigation focused on the
defendant. See id. at 1507. We rejected the government's argument,
holding that the social worker's testimony was only relevant to proving
that the defendant was the perpetrator of the crime. See id. We ruled,
however, that the error in admitting the evidence was harmless. See id.
The testimony here, unlike Azure, provided the jury with background
information as to why the police began their investigation and set up their
surveillance. See, e.g., King, 36 F.3d at 732. We are troubled, however,
with the portion of Holland's testimony which explained that an informant
identified “Dre” as a person selling cocaine in the Minneapolis area.
Later testimony at trial established that Brown used the nickname “Dre.”
Thus, this testimony was only relevant to proving that Brown was selling
cocaine in the Minneapolis area. See Azure, 845 F.2d at 1507.
Nevertheless, to the extent this testimony was hearsay, we
2
Because Brown alleges a violation of his right to
confrontation under the Sixth Amendment, we apply the harmless
error standard from Chapman v. California, 386 U.S. 18, 24-25
(1967).
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believe its admission was harmless.3 There was substantial evidence
linking Brown to the cocaine found at the apartment. Furthermore, the
court specifically instructed the jury to consider the evidence only for
the limited purpose of explaining why the police began surveillance, and
that they should not consider the evidence for any other purpose, including
to decide whether Brown was guilty or not guilty.
Nor do we believe that Holland's testimony that the apartment manager
told her that Brown had been to the Heritage Hills apartment before
November 15 constituted inadmissible hearsay. During the cross-examination
of Holland, Brown’s counsel challenged Brown’s authority to consent to the
apartment search. Counsel attempted to show that Holland could not
reasonably believe that Brown had the authority to consent to the search.
In response to this question, Holland testified on redirect examination
that the apartment manager had told her that Brown had been to the
apartment before November 15. In overruling defense counsel’s objection,
the district court advised the jury that the statement was “not submitted
for the truth of the assertion, but rather for the action of the witness.”
Holland's testimony that the apartment manager told her that Brown had been
to the apartment before was offered to explain the basis for Holland's
belief that Brown could consent to the search of the apartment, not to
prove that Brown actually had been to the apartment before. The testimony
was not inadmissible hearsay. See Fed. R. Evid. 801(c). Moreover, Brown
testified that he had been to the apartment at least one other time before
3
Brown cites several cases from other circuits that we find
distinguishable on their facts, as the hearsay testimony in those
cases was much more extensive. See, e.g., United States v. Check,
582 F.2d 668, 678-79 (2d Cir. 1978) (officer's extensive testimony
about what an informant told him served as “a transparent conduit
for the introduction of inadmissible hearsay”).
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his arrest, so even assuming there was error in admitting the testimony,
any error was harmless beyond a reasonable doubt. See King, 36 F.3d at
732.
Similarly, the district court did not abuse its discretion by
allowing Holland to testify that she believed Brown had control over the
apartment because he had the keys to the apartment and because other
surveillance officers told her that they had seen Brown open the
apartment's security door and walk around inside the apartment. This
testimony was not inadmissible hearsay; it was not offered for the purpose
of proving that Brown actually had control of the apartment, but to explain
the reasonableness of Holland's belief that Brown could consent to the
search.
Likewise, the court did not abuse its discretion in admitting
Holland’s testimony that she had been told that the items purchased at Wal-
Mart and Target were the “tastes” of Brown. First, Brown did not object
to the testimony. Second, the testimony came in response to the question
of whether Holland had personal knowledge about whether Brown had bought
the household items for himself or someone else. The testimony was not
offered for the purpose of proving that Brown actually purchased the items
for himself, but rather, to explain the basis for Holland's belief that
Brown had control of the apartment.
The district court did not abuse its discretion in admitting the
alleged hearsay testimony.
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II.
Next, Brown complains that the district court abused its discretion
in admitting opinion or expert testimony. In particular, Brown takes issue
with Holland's testimony that she believed the Heritage Hills apartment was
a stash house for drugs, and that Brown's stop in Robbinsdale was
consistent with that of a drug delivery. In addition, Brown objects to the
testimony of Holland and Hauglid that Brown's actions just before his
arrest were consistent with that of someone engaging in counter-
surveillance activities and attempting to destroy evidence. Brown also
complains about Holland's testimony that she believed Brown had control
over the apartment. Brown contends that these opinions were improper under
Federal Rules of Evidence 701 and 702, and constituted an improper comment
on the evidence.
A district court's decision on whether to admit opinion and expert
testimony is reviewed for a clear abuse of discretion. See United States
v. Parker, 32 F.3d 395, 400 (8th Cir. 1994). If we determine that the
testimony was improper, we will reverse only if there is a significant
possibility that the testimony had a substantial impact on the jury. See
United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996).
“A district court has discretion to allow law enforcement officials
to testify as experts concerning the modus operandi of drug dealers in
areas concerning activities which are not something with which most jurors
are familiar.” United States v. Boykin, 986 F.2d 270, 275 (8th Cir.),
cert. denied, 510 U.S. 888 (1993) (quoting United States v. White, 890 F.2d
1012, 1014 (8th Cir. 1989), cert. denied, 497 U.S. 1010 (1990)); see
Delpit, 94 F.3d at 1144-45. In addition, a court can allow opinion
testimony if the
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expert's specialized knowledge is helpful to the jury to understand the
evidence or determine a fact in issue, even if the opinion embraces an
ultimate issue to be decided by the jury. See Boykin, 986 F.2d at 275; see
also United States v. Garcia, 86 F.3d 394, 400 (5th Cir. 1996), cert.
denied, 117 S. Ct. 752 (1997), (allowing agents' testimony that large drug
trafficking organizations commonly use “car swaps,” “stash houses” and
conduct “heat runs”).
Thus, we have no trouble concluding that the district court did not
abuse its discretion in admitting Holland's testimony that she believed the
Heritage Hills apartment was a stash house and that she believed Brown's
actions were consistent with someone engaging in a drug delivery and
counter-surveillance activities. The testimony helped the jury to
understand why Holland suspected the presence of drugs in the Heritage
Hills apartment, and to understand the significance of Brown's activities
while under surveillance.
Similarly, we reject Brown's assertion that the testimony was
improper because the officers were not qualified to render expert opinions.
Both officers were trained, experienced narcotics investigators, and they
qualified as experts whose opinions were helpful to the jury. See, e.g.,
Delpit, 94 F.3d at 1145. We also point out that the district court
instructed the jury that it was not bound by the opinion of any expert,
thus limiting the possibility that any improper opinion testimony had a
substantial impact on the jury. See id.; United States v. Daniels, 723
F.2d 31, 33 (8th Cir. 1983) (per curiam).
The district court did not abuse its discretion in admitting opinion
or expert testimony.
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III.
Finally, Brown argues that the district court impermissibly limited
his cross-examination of Holland regarding her knowledge of a Minnesota
Supreme Court decision, State v. Scales, 518 N.W.2d 587 (Minn. 1994).
Scales requires law enforcement officers to electronically record custodial
interrogation when questioning occurs at a police station, and otherwise
where feasible. Id. at 592. Brown contends that he should have been
allowed to question Holland about the Scales decision in order to show bias
and attack her credibility. The district court refused to allow defense
counsel to question Holland about the Scales decision on the ground that
it was a state law which did not apply to a federal proceeding. Brown
contends that the court's refusal to allow this line of questioning
violated his right to confront witnesses.
Absent a clear abuse of discretion and a showing of prejudice, we
will not reverse a district court's ruling limiting cross-examination of
a witness on the basis that it impermissibly infringed on the defendant's
right of confrontation. See United States v. Willis, 997 F.2d 407, 415
(8th Cir. 1993), cert. denied, 510 U.S. 1050 (1994). “The Confrontation
Clause of the Sixth Amendment guarantees to a defendant the opportunity for
effective cross-examination of witnesses against him, including inquiry
into the witnesses' motivation and bias.” Id. Nevertheless, “[t]he
Confrontation Clause . . . does not prevent a trial judge from placing
limits on defense counsel's cross-examination of government witnesses.”
Id. The district court retains “wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that is
repetitive or only
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marginally relevant.” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986)). A critical factor in determining whether a defendant's right
of confrontation has been violated is whether the defendant had other ways
to obtain the effect that the excluded examination would have allegedly
established. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.
1996), cert. denied, 117 S. Ct. 1119 (1997).
Here, defense counsel had ample opportunity to discredit Holland's
testimony, even though the court prevented the defense from specifically
bringing up the Scales decision. Indeed, Brown's counsel asked Holland
whether she tape-recorded or had Brown sign a written confession. Counsel
further asked Holland if anyone else was present when Brown confessed and
whether she ordinarily interviewed suspects alone. Counsel asked Holland
if she had a tape recorder, where it was located, and how long it would
have taken for Holland to get the recorder from her office. Thus, the
district court allowed defense counsel to thoroughly cross-examine Holland
about her interview with Brown and Brown's confession. The court did not
abuse its discretion by refusing to allow defense counsel to specifically
question Holland about the Scales decision.
The court did not impermissibly limit Brown's cross- examination.
We affirm Brown's conviction.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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