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09/06/90 DAVID BELTON v. UNITED STATES

September 6, 1990

DAVID BELTON, APPELLANT
v.
UNITED STATES, APPELLEE. GARY T. GORDON, APPELLANT V. UNITED STATES, APPELLEE. JAMES COWAN, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge

Ferren, Terry,* and Schwelb, Associate Judges. Schwelb, Associate Judge Concurring in (part) and Dissenting in (part).

The opinion of the court was delivered by: Ferren

Although appellants raise a variety of issues on appeal, not all of which are applicable to each of them, the principal question we must answer is whether appellant Cowan's sentencing hearing was unfair because the trial Judge had engaged in ex parte communication that, Cowan contends, violated Canons 3 (A)(4) and 3 (C)(1) of the ABA Code of Judicial Conduct. We deal with that issue in Part III, resolving the other issues summarily in Part II.

A jury convicted appellants and two co-defendants of conspiracy to possess and distribute cocaine, D.C. Code §§ 33-541 (a)(1), -549 (1988), assault with a dangerous weapon, id. § 22-502 (1989), and attempted distribution of cocaine, id. § § 33-541 (a)(1), -549. Appellant Cowan was convicted of carrying a pistol without a license, id. § 22-3204 (1989). *fn1 For the conspiracy convictions, appellants were sentenced to prison terms of twenty months to five years; in addition, appellant Belton was fined $10,000. For attempted distribution, each appellant was sentenced to imprisonment for a period of twenty months to five years; in addition, appellant Belton was fined $10,000. For assault with a dangerous weapon, Cowan and Belton were each sentenced to prison for a period of forty months to ten years, and appellant Gordon was sentenced to a term of thirty months to ten years. *fn2 Cowan also was sentenced to one year of incarceration for carrying a pistol without a license.

On appeal, Belton contends that the evidence was insufficient for conviction of each of the three offenses and that the trial court erred in denying his severance motion. Gordon's only contention on appeal is the trial court's alleged error in denying his severance motion. Cowan argues that the evidence was insufficient to convict him of attempted distribution of cocaine and that the trial court engaged in improper ex parte communication which denied him a fair sentencing hearing. Finally, this court sua sponte has considered the propriety of the prison sentences of twenty months to five years imposed for attempted distribution of a controlled substance pursuant to an indictment that cited D.C. Code § 33-541 (a) (concerning manufacture, distribution, or possession of controlled substances) and id. § 33-103 (1988) (concerning definition of adulterated articles) but not id. § 33-549 (concerning attempt and conspiracy to manufacture, distribute, or possess controlled substances). We affirm all convictions, except to remand for resentencing Cowan by a different Judge because of an appearance of impropriety attributable to the trial Judge's unexplained reference at the original sentencing hearing to an ex parte contact with persons highly critical of Cowan.

I.

According to the government's evidence, appellants were part of a conspiracy to distribute "crack" cocaine in the Paradise and Mayfair Manor apartment complexes of northeast Washington, D.C. All three appellants sold cocaine and recruited runners to make additional sales. Belton and Cowan also acted as "enforcers," protecting the conspirators against embezzlement by the runners and robbery by outsiders. At times, Gordon cooked cocaine and assisted in money handling.

Samuel Giles, a co-conspirator who pleaded guilty to two counts of second-degree murder, testified on behalf of the government about the events of November 3, 1986, the day on which many of the events described in the indictment allegedly took place. According to Giles, he and Cowan, both "enforcers," went to a "base house" of the conspiracy looking for Leroy Hines. Apparently Hines owed money to the leader of the conspiracy, Tony Adams (also known as Kenilworth Fats), and Adams had told Cowan and Giles to "see if had that money." Cowan and Giles found Hines, hit him repeatedly, and "dragged him over to ." Adams told Cowan to kill Hines, but Giles intervened and, instead, Cowan and Giles "just whipped his tail." Both Cowan and Giles were carrying guns. One witness testified that Cowan and Giles "pistol whipped" Hines.

After beating Hines, both Cowan and Giles walked first to Adams and then to a lamppost, where they were met by Belton and James Madison. Giles testified that

said that somebody was getting ready to come and buy some coke from . . . . About that time a man walked up to . When he walked up to [Adams,] like stood in front of like catty-corner, you know, when I looked over, looked at , the dude was up to him. Then that's when [another man] was coming around the back. . . . hat's when I heard the gunshot. fell down on the ground and started hollering. started running. . . . I started running. We started firing at the dude.

Cowan and Giles chased the man -- Kevin Dozier -- who had been standing with Adams; they each fired three shots at him. Dozier entered an apartment building. When Giles and Cowan reached the building, Cowan told Giles he saw Dozier in the building "ying on the ground."

After the chase, Giles "went running down to see what was the matter with ." Adams was standing up and brushing himself off. The zip-lock bag of cocaine which Adams had been carrying was on the ground near him. According to Giles, Adams "must have had [the bag] open [,] ecause when he fell the caine like came out of it. It was in little bags. * * * t was a whole lot of caine. . . ."

II.

We may readily dispose of all the issues except for the alleged unfairness of Cowan's sentencing hearing.

A.

The evidence was sufficient to convict Belton of conspiracy, attempted distribution of cocaine and assault with a dangerous weapon, and to convict Cowan of attempted distribution. The government's evidence showed that two or more persons, including Belton, formed an agreement to possess and distribute cocaine; that Belton knowingly and voluntarily participated in that conspiracy; and that at least one overt act was committed in furtherance of the common scheme. See United States v. Osgood, 794 F.2d 1087, 1094 (5th Cir.), cert denied, 479 U.S. 994, 107 S. Ct. 596, 93 L. Ed. 2d 596 (1986); United States v. Treadwell, 245 U.S. App. D.C. 257, 263, 760 F.2d 327, 333 (1985), cert. denied, 474 U.S. 1064, 106 S. Ct. 814, 88 L. Ed. 2d 788 (1986). Moreover, under Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), a party to a conspiracy may be held responsible for substantive offenses committed by a co-conspirator in furtherance of the conspiracy. See also United States v. Tarantino, 269 U.S. App. D.C. 398, 412, 846 F.2d 1384, 1398 (where appellant's co-conspirators, but not appellant, "laundered" cocaine profits, laundering acts were also attributable to appellant), cert. denied, 488 U.S. 840, 109 S. Ct. 108, 102 L. Ed. 2d 83, and 488 U.S. 867, 109 S. Ct. 174, 102 L. Ed. 2d 143 (1988); United States v. Lemire, 232 U.S. App. D.C. 100, 125, 720 F.2d 1327, 1352 (1983) (upholding conspirator's conviction on substantive offenses based on foreseeable acts of co-conspirators perpetrated in furtherance of conspiracy), cert. denied, 467 U.S. 1226, 104 S. Ct. 2678, 81 L. Ed. 2d 874 (1984). Thus, Belton was properly convicted for assault with a dangerous weapon based on the pistol-whiping of Leroy Hines by co-conspirators Cowan and Giles. Similarly, Belton and Cowan were lawfully convicted for co-conspirator Adams' attempted distribution of cocaine. *fn3

B.

Nor did the trial court err in denying Belton's and Gordon's motions for severance. Contrary to each appellant's contention, in neither case was the evidence against the appellant insignificant when compared with the evidence against the co-defendants. See Christian v. United States, 394 A.2d 1, 21 (D.C. 1978), cert. denied, 442 U.S. 944, 99 S. Ct. 2889, 61 L. Ed. 2d 315 (1979). Nor, in Belton's case, was his defense irreconcilable with the defenses of his co-defendants. See id.; (Kirk D.) Williams v. United States, 382 A.2d 1, 8 (D.C.1978).

C.

Belton, Gordon, and Cowan were sentenced to prison for twenty months to five years for attempted distribution of a controlled substance (cocaine), D.C. Code §§ 33-541 (a)(1), -549. In response to this court's sua sponte inquiry, they argue these sentences cannot stand because the fifth count of the indictment cited D.C. Code § 33-103 instead of § 33-549 for the "attempt" portion of the offense. The argument for invalidation is premised on an assumption that § 33-103 *fn4 was a mistyped reference to D.C. Code 22-103 (1989), the general criminal attempt provision permitting maximum imprisonment of one year, and that the grand jury accordingly intended to charge the attempt offense under § 22-103 instead of under § 33-549, a more specific attempt (and conspiracy) provision permitting the longer prison sentences imposed in this case.

In light of the fact that § 33-103 is an obviously incorrect citation, appellant could have had no sound reason for relying on it. *fn5 But, in any event, the facts stated in the fifth count, coupled with the reference to D.C. Code § 33-541 (a)(1) (unlawful possession or distribution of controlled substance), gave appellants clear notice of a charge of attempted distribution of a controlled substance, which under the District of Columbia Code, as under the federal statute, "is punishable to the same degree as the offense which was the object of the conspiracy." United States v. Kennington, 650 F.2d 544, 546 (5th Cir. 1981) (per curiam); see D.C. Code § 33-549; see also Super. Ct. Crim. R. 7 (c) (indictment shall state for each count official or customary citation; and any error in citation shall not be ground for dismissal if it "did not mislead the defendant to his [or her] prejudice").

We would so rule even if appellants had raised the issue at trial. But here, no one questioned the citation to § 33-103 until this court did so sua sponte. Accordingly, in concluding that appellant received clear notice of the attempted distribution charge, we are convinced without doubt that the indictment is not "'so deficient as to be totally lacking in the statement of an offense,'" Driver v. United States, 521 A.2d 254, 257 (D.C. 1987) (quoting (Joseph M.) Williams v. United States, 404 ...


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