conclude that Ms. Johnson knew what was going on inside, especially when there was evidence of drug use in plain view.
The jury also had an adequate factual predicate upon which to convict Ms. Johnson of possession with intent to distribute 5 or more grams of crack cocaine. In Jenkins, supra, the Court upheld the conviction on possession with intent to distribute based on facts very similar to the instant case. Because Ms. Johnson does not dispute that the quantity of drugs recovered indicates an intent to distribute, Ms. Johnson's status as the lessee alone is a sufficient basis upon which to find Ms. Johnson guilty of possession with intent to distribute. See Jenkins, supra. See also United States v. Long, 284 U.S. App. D.C. 405, 905 F.2d 1572, 1578 (D.C. Cir. 1990), cert. denied, 112 L. Ed. 2d 328, 111 S. Ct. 365 (1991) ("a jury can reasonably infer that a person who exercises dominion and control over a given premises constructively possesses contraband found on those premises") (citing United States v. Anderson, 279 U.S. App. D.C. 413, 881 F.2d 1128 (D.C.Cir. 1989)).
At the very least, by making her house available to others who possessed drugs, the jury could find Ms. Johnson guilty of aiding and abetting the possession with intent to distribute cocaine base. In order to show that Ms. Johnson aided and abetted the possession with intent to distribute, the Government had to demonstrate that someone possessed the drugs with the intent to distribute; that Ms. Johnson had the specific intent to facilitate the commission of this crime; and that she assisted or participated in the crime having some knowledge of criminal acts taking place. See United States v. Raper, 219 U.S. App. D.C. 243, 676 F.2d 841, 849 (D.C. Cir. 1982).
There is sufficient evidence upon which a jury could conclude that someone in the house possessed cocaine base with the intent to distribute it. The police recovered over 12 grams of crack on the premises. An expert testified that this amount of drugs, along with the baggies and other packaging materials found inside of the house, evidenced that drugs were being distributed by someone on the premises. Given that Ms. Johnson leased the house and lived there, and given the presence of drug paraphernalia throughout the domicile, the jury could find that Ms. Johnson had knowledge that drug activity was taking place. Finally, the jury could conclude that, as the person who was the lessee, she invited, or at least allowed, this person or persons to use her home for the purpose of distributing drugs.
Accordingly, by enabling someone to use her home for the purpose of storing or distributing drugs, Ms. Johnson aided and abetted the crime. See Poston, supra, 902 F.2d at 94 (sustaining conviction for one who "aided and abetted the retention of possession") (emphasis in original).
B. THERE WAS SUFFICIENT EVIDENCE UPON WHICH THE JURY COULD HAVE CONVICTED MR. BRAWNER.
The jury convicted Mr. Brawner of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); using or carrying a firearm in the course of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm in interstate commerce by a felon in violation of 18 U.S.C. § 922(g). Upon careful review of the evidence and the testimony adduced at trial, the Court finds that there was sufficient evidence to support each of these charges.
Mr. Brawner attacks all three counts on the basis that there was no evidence that he possessed either the guns or the drugs. See Brawner's Points and Authorities in Support of Motion for Judgment of Acquittal at 3 ("The judgment of acquittal should be granted as the government has not established any nexus between defendant Brawner and either the gun or the drugs"). He points to the fact that he is not the lessee, that none of his clothes were found on the premises, and that no identification of his was discovered there. According to Mr. Brawner, he was visiting his son, and just happened to be at the wrong place at the wrong time. Although the case against Mr. Brawner is far from compelling, the evidence against him is sufficient for the Court to find that the jury did not base its verdict on mere speculation.
In order for the Court to sustain the jury's verdict, there must be sufficient proof that Mr. Brawner had actual or constructive possession of the drugs and the gun. It is undisputed that Mr. Brawner did not have actual possession, as the gun and drugs were concealed in two different closets at the time of the arrest. Thus, the Government's case against Mr. Brawner rests on the theory of constructive possession. In order for the Government to meet its evidentiary burden on the element of constructive possession,
there must be something more than mere presence at the scene of the criminal transaction. There must be some action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them.
United States v. Pardo, 204 U.S. App. D.C. 263, 636 F.2d 535, 549 (D.C.Cir. 1980) (citing United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 884 (D.C.Cir. 1978)). See also Long, supra (reversing firearms conviction because there was "no evidence suggesting that Long was headed for the gun, or even that he knew of its existence"). Thus, the Court must determine whether the jury could have reasonably concluded that Mr. Brawner's conduct indicates that he had some power over or stake in the drugs and the gun at issue.
The evidence shows that the police found Mr. Brawner in the upstairs bedroom where both the drugs and the gun were secreted. Based upon the fact that the police discovered Mr. Brawner shirtless late at night in the middle of February, the jury may have concluded that Mr. Brawner was sleeping in the house on the evening on which the arrest transpired. There is also no dispute that the police observed Mr. Brawner peering out the front and rear bedroom windows as the arrest was about to take place. The jury may have accepted the Government's conclusion, based on the testimony and experience of police officers, that Mr. Brawner's behavior was evasive and was a last-ditch effort to toss the guns and the drugs. There is also no dispute that, after he was searched and arrested, the police observed Mr. Brawner, along with Ms. Johnson, squirming on the couch. Money was later found beneath one of the cushions on the sofa. The jury may have concluded that Mr. Brawner was involved in the sale and distribution of drugs from the premises. Finally, despite the fact that the drugs and guns were concealed in a closet, both items were located in the same bedroom where Mr. Brawner was apprehended, and both items were within Mr. Brawner's reach had the police chosen not to come upstairs immediately upon entering the house. This evidence indicates more than mere presence at the scene of the crime and does suffice to prove constructive possession of the drugs and the gun.
IV. THE DEFENDANTS' REQUESTS FOR NEW TRIALS MUST BE DENIED BECAUSE THE VERDICTS RENDERED BY THE JURY DO NOT REPRESENT A MISCARRIAGE OF JUSTICE.
The Court may grant the motion for a new trial if it finds that a new trial is "in the interest of justice." Fed. R. Crim. P. 33. When the trial court has committed an error "of sufficient magnitude to require reversal on appeal," a new trial may be granted. See 3 C. Wright, Federal Practice & Procedure: Criminal 2d § 556, at 85 (Supp. 1991) (hereinafter, Wright: Criminal 2d). Thus, a defendant seeking a new trial must demonstrate not only that the Court committed plain error, but also that this error affected the defendant's substantial rights. Wright, Criminal 2d, supra, § 551, at 238 (1982 & 1991 Supp.). See generally Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).
A. BECAUSE THE REMARKS OF DETECTIVE STROUD WERE NOT UNDULY PREJUDICIAL, MS. JOHNSON IS NOT ENTITLED TO A NEW TRIAL.
Ms. Johnson contends that the Court erred by admitting the testimony of Detective Stroud about the propensity of crack dealers to use the home of an addict as a distribution base. Ms. Johnson claims that this testimony was unduly prejudicial because it led the jury to speculate that this testimony applied to her, even though no evidence had been introduced to show that she was a drug addict.
This claim does not warrant a new trial because Ms. Johnson has not demonstrated that this testimony was unduly prejudicial and that its admission deprived her of a fair trial. One cannot assume that Detective Stroud's response to the prosecutor's hypothetical question had any prejudicial impact. As the defense admits, no evidence was introduced that Ms. Johnson was an addict. Thus, the remark of the Government's expert could have easily backfired; the lack of evidence to support any inference that Ms. Johnson was an addict may have led the jury to find that Ms. Johnson was not responsible for the crimes charged.
Ms. Johnson relies on the case of United States v. Castillo, 924 F.2d 1227 (2d Cir. 1991), to overturn the jury's verdict. Although the Castillo court held that admitting expert testimony as to matters within the ken of the jury was reversible error, the Castillo case does not mandate a new trial for Ms. Johnson in this case. The Court reversed the conviction on the gun count in Castillo in large part because the prosecutor stressed the importance of the expert's testimony in the closing argument, id. at 1234, and because the evidence on the firearm count in that case was weak. Id. at 1234-1235 (no gun was ever recovered, the arrest report never mentioned the gun, and the only person witnessing the gun was a young police officer on the scene). These circumstances distinguish Castillo from this case.
Even assuming that Detective Stroud's testimony had an inflammatory effect in this case, any prejudice to Ms. Johnson was minimal under the Castillo-type scenario. The prosecutor never mentioned Detective Stroud's testimony as to the "crack house" in his closing argument, nor did he focus on the remark during the presentation of the Government's case. Moreover, unlike the Castillo case, the evidence against Ms. Johnson was sufficiently convincing that the remark of Detective Stroud would have had little impact on the jury. It was undisputed that Ms. Johnson was the lessee and that she lived in the house. It was also undisputed that Ms. Johnson was arrested in the house at a time when drug paraphernalia was in plain view. This evidence was sufficient for the jury to find that Ms. Johnson knew that her home was being used for the use, storage and distribution of drugs, and that she aided and abetted the possession with intent to distribute crack cocaine.
B. BECAUSE THE COURT'S CURATIVE INSTRUCTIONS REMEDIED ANY POSSIBLE PREJUDICE SUFFERED BY MR. BRAWNER, THERE WAS NO ERROR IN DENYING A MISTRIAL.
A government witness testified as to a hearsay statement made by a suspect at the scene of the crime. This suspect indicated to the Government witness that he and Mr. Hooks went to 73 "O" Street to borrow a gun which belonged to Mr. Brawner. The Court sustained defense counsel's objection and struck the statement. Mr. Brawner contends that this statement was unduly prejudicial and that the Court committed fatal error in denying his motion for a mistrial. Given this alleged error, Mr. Brawner claims that he is entitled to a new trial.
Although this testimony was prejudicial to Mr. Brawner, the Court did strike the testimony and instructed the jury to ignore the comment. This was sufficient to protect Mr. Brawner. Contrary to Mr. Brawner's suggestion, the hearsay testimony of the Government's witness in this case does not raise a Bruton problem. See Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). As the Court of Appeals recently explained in United States v. Burroughs, 935 F.2d 292, No. 90-3195, slip op. at 4-5 (D.C.Cir. May 31, 1991), Bruton problems do not arise when there is not a confession by a codefendant admitted into evidence.
In Burroughs, the defendant Nelson testified that a codefendant, who was being tried separately, told her that a purse containing drugs belonged to Burroughs, a third defendant who was on trial with Nelson. The Court held that this type of hearsay statement, which was not admitted into evidence, did not fall within Bruton's ambit. Id. Accordingly, the Court held that the case "is therefore not governed by Bruton's conclusive presumption that the jury will not, cannot, follow even the strongest instruction not to consider a codefendant's confession against the nontestifying defendant implicated by it." Id. This case is much like Burroughs in that the declarant made no "confession" and the statement was not given to the jury for its consideration.
The Court in Burroughs did consider whether the curative instruction was sufficient to cure any prejudicial effect of the testimony by evaluating the jury's verdict and the other evidence in the case. Examining the jury's verdict in this case leads the Court to believe that the jury carefully evaluated the evidence against all of the defendants. In fact, the jury's decision to acquit Mr. Hooks on all counts manifests that they carefully examined the nexus between each defendant the drugs and the gun. Mr. Hooks was found in the kitchen, and, according to the inadmissible testimony of the Government's witness, was allegedly on his way to borrow a gun from Tyrone Brawner. Had the jury considered this evidence, there would have been a nexus to link Mr. Hooks to the materials inside of the house. However, the jury's verdict of not guilty as to Mr. Hooks shows that the jury disregarded this evidence as they were instructed to do. The jury's verdict also makes sense when viewed against the evidence proffered as to Mr. Brawner: Mr. Brawner was in the bedroom where both the drugs and gun were found and was acting in a manner consistent with the Government's theory that he was trying to dispose of these items. Thus, even when disregarding the inadmissible testimony linking Mr. Brawner to the gun, the jury had enough evidence to convict.
Finally, the Court's decision to deny Mr. Brawner's motion for a mistrial was not reversible error. In evaluating a motion for mistrial, the trial court balances various factors.
The trial court evaluates the demeanor of the witness, the content of the stricken testimony, its likely impact, and the probable effect of cautionary instructions swiftly and firmly administered.