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McFarland v. United States

April 17, 2003

GREGORY MCFARLAND, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (F-2207-99) (Hon. Robert I. Richter, Trial Judge)

Before Steadman, Farrell, and Washington, Associate Judges

The opinion of the court was delivered by: Farrell, Associate Judge

Argued March 31, 2003

A jury found appellant guilty of one count each of distributing cocaine and carrying a dangerous weapon (a knife). On appeal the sole issue presented is whether the trial judge abused his discretion in admitting into evidence the fact that the police found $774 on appellant's person -- $700 in one pocket, $74 in another -- at the time of his arrest for selling two ziplock bags of cocaine. We affirm.

I.

Detective Austin-Braxton of the Metropolitan Police and his partner, Detective Murphy, were driving in the area of 8th and I Streets, N.W., when Austin-Braxton saw appellant exchange what appeared to be drugs for money with another individual, Gregory Hemphill. In particular, as the two men walked along in the company of a woman, Hemphill first touched something in appellant's hand and then took a small object from the hand, giving appellant money in return. As Hemphill "cupped" the object in his hand, the woman appeared to recognize the presence of the police, and she and Hemphill walked away from appellant. Austin-Braxton pursued Hemphill and, when nearly up to him, saw him throw two ziplock bags to the ground containing a white substance. Hemphill was arrested and the two discarded bags were retrieved; each held crack cocaine.

Meanwhile, Detective Murphy stopped appellant and frisked him. A moment later, when Austin-Braxton radioed Murphy that he had recovered the cocaine discarded by Hemphill, appellant volunteered that Murphy had "missed a weapon on him." Appellant reached down and removed a knife with a serrated edge from his waistband. Murphy then placed him under arrest and searched him, finding $74 in his right front pocket and $700 in his left front pocket, the latter made up of two one hundred dollar bills and multiple fifties and twenties.

Before trial appellant moved to exclude the evidence that he had $774 on him at the time of arrest. The trial judge denied the motion orally at trial, stating:

It seems to me [the money is] directly probative of the offense charged. So I don't see . . . that's even close because having money is not a crime in and of itself, it's evidentiary of the crime charged. . . .

[t]hat [appellant is] selling drugs right then. It's different than if they went to a bank account or something[,] then I would agree with you. Right here where the Government's evidence says they saw him receiving money, the fact that he has money on him is of rather crucial importance.

The judge rejected appellant's alternative argument that the government's legitimate need for evidence that he had money on him at the time of alleged trafficking would be met by admitting a portion of the money, the $74, stating "they're not so limited" and that appellant could offer any innocent explanation he wanted to the jury for having the larger sum in his possession.

II.

The government has conceded, understandably, that the entire $774 was not derived from the drug sale charged; and appellant was observed engaging in only a single apparent sale of drugs. In these circumstances, appellant contends that the admission of the $774 in evidence placed "pure propensity evidence" before the jury in violation of Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964), and related cases. *fn1 At the least, appellant argues that the prosecution should have been limited to introducing the $74 that he had in one of his pockets -- an amount arguably commensurate with the sale of two bags of cocaine and much less suggestive of a general propensity than the entire $774.

Although the argument is forcefully presented, we reject it. The combined sum of money was found in appellant's pockets minutes after he was observed receiving money in exchange for objects that were inferentially the two bags of cocaine Hemphill had discarded. Under our previous decisions, the money was not "other crimes" evidence but rather circumstantial evidence of the crime charged, "intertwined" with ...


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