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  • United States v. Michael Terrance Dunn, 41 F.3d 1504, 4th Cir. (1994)

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    This document summarizes a court case in which Michael Dunn appealed his conviction for possession with intent to distribute crack cocaine. The court upheld the conviction. It found that the trial court did not abuse its discretion by allowing an expert witness to testify about drug trafficking without directly opining on the defendant's intent. It also found no error in the trial court's failure to require forensic handwriting analysis on documents used to corroborate another witness's testimony.

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    Filed: 1994-11-21 Precedential Status: Non-Precedential Citations: 41 F.3d 1504 Docket: 93-5788

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    This document summarizes a court case in which Michael Dunn appealed his conviction for possession with intent to distribute crack cocaine. The court upheld the conviction. It found that the trial court did not abuse its discretion by allowing an expert witness to testify about drug trafficking without directly opining on the defendant's intent. It also found no error in the trial court's failure to require forensic handwriting analysis on documents used to corroborate another witness's testimony.

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    United States v. Michael Terrance Dunn, 41 F.3d 1504, 4th Cir. (1994)

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    This document summarizes a court case in which Michael Dunn appealed his conviction for possession with intent to distribute crack cocaine. The court upheld the conviction. It found that the trial court did not abuse its discretion by allowing an expert witness to testify about drug trafficking without directly opining on the defendant's intent. It also found no error in the trial court's failure to require forensic handwriting analysis on documents used to corroborate another witness's testimony.

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    of 4

    41 F.

    3d 1504

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of


    unpublished dispositions is disfavored except for establishing
    res judicata, estoppel, or the law of the case and requires
    service of copies of cited unpublished dispositions of the Fourth
    Circuit.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Michael Terrance DUNN, Defendant-Appellant.
    No. 93-5788.

    United States Court of Appeals, Fourth Circuit.


    Submitted: Oct. 25, 1994.
    Decided: Nov. 21, 1994.

    Appeal from the United States District Court for the Western District of
    Virginia, at Charlottesville. James H. Michael, Jr., District Judge. (CR-9255)
    David L. Heilberg, Charlottesville, VA, for appellant. Robert P. Crouch,
    Jr., United States Attorney, Donald R. Wolthuis, Assistant United States
    Attorney, Roanoke, VA, for appellee.
    W.D.Va.
    AFFIRMED.
    Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER,
    Senior Circuit Judge.
    OPINION
    PER CURIAM:

    Michael Dunn appeals from his conviction for possession with intent to
    distribute crack cocaine, in violation of 21 U.S.C.A. Sec. 841 (West 1981 &
    Supp.1994). He argues that the district court erred in permitting expert opinion

    testimony on the "intent to distribute" element of the Sec. 841 offense, as


    prohibited by Fed.R.Evid. 704(b).1 Dunn also contends that the court
    erroneously failed to require the Government to perform a forensic handwriting
    analysis in order to corroborate the testimony of one of its witnesses. Finding
    no error, we affirm.
    2

    Dunn's first argument focuses on the testimony of Detective J.E. Harding of the
    Charlottesville, Virginia, Police Department, qualified without objection as an
    expert concerning the drug trade. We review the admission of expert opinion
    testimony for an abuse of discretion. United States v. Gastiaburo, 16 F.3d 582,
    589 (4th Cir.), cert. denied, 63 U.S.L.W. 3259 (U.S.1994).

    Contrary to Dunn's characterization, Harding did not opine as to an "intent to


    distribute." Instead, Harding described the sources for Charlottesville's crack
    supply (including Washington, D.C.), the factors motivating the transport of
    crack from Washington to Charlottesville, the characteristics of an open-air
    crack market (including typical quantities sold and prices charged), and the
    standard preparation and packaging of crack. There was no opinion testimony
    by Harding linking his drug trade expertise to Dunn's activities or the essential
    elements of the alleged offense.2 "Rule 704(b) is not strictly construed and
    prohibits only a direct statement of the defendant's intent."3 United States v.
    Speer, 30 F.3d 605, 30 F.3d 605,610 (5th Cir.1994); see also Gastiaburo, 16
    F.3d at 588 ("Most appellate panels have refused to find error in the admission
    of expert testimony on intent to distribute controlled substances."). We find the
    district court did not abuse its discretion in permitting Harding's testimony.

    Dunn's second objection focuses on the court's failure to compel the


    Government to corroborate the testimony of witness Artemus Winslow with a
    forensic handwriting analysis, comparing Dunn's known signature on the
    "advice of rights" form to hotel registration slips which, according to Winslow,
    Dunn had signed as "Niko Brown" during their distribution excursions from
    Washington to Charlottesville. We review this argument for plain error, due to
    Dunn's failure to present it at trial. Fed.R.Crim.P. 52(b). Plain error requires
    "not only the existence of an 'error' (i.e., a '[d]eviation from a legal rule' that the
    defendant has not waived), but also that the error be 'plain' (i.e., 'clear' or,
    equivalently, 'obvious' under the current applicable law)." Gastiaburo, 16 F.3d
    at 587 (quoting United States v. Olano, 113 S.Ct. 1770, 1777 (1993)).

    This claim is also without merit. The Government obtained the hotel
    registration slips the day before the trial began, after learning of their existence
    from Winslow that same day, and provided the slips to defense counsel before
    trial. Upon receipt thereof, defense counsel had several options, including a

    request for a continuance to permit forensic handwriting analysis or an


    objection to the admission of the slips into evidence. Instead, defense counsel
    used the Government's failure to corroborate Winslow's testimony with a
    forensic handwriting analysis and the purportedly obvious differences between
    the signatures in his closing arguments as grounds for attacking Winslow's
    credibility. That tactical decision cannot be used now as a basis for invalidating
    the ultimately unsuccessful result thereby achieved. We know of no legal rule,
    and Dunn has failed to provide such, requiring corroboration of every aspect of
    a witness' testimony that would render the district court's failure to require
    forensic handwriting analysis in this case an "error" that is "plain." Hence, we
    reject Dunn's claim that the absence of such analysis is plain error.
    6

    For the reasons stated herein, we affirm Dunn's conviction and sentence. We
    dispense with oral argument because the facts and legal contentions are
    adequately presented in the materials before the Court and argument would not
    aid the decisional process.

    AFFIRMED.

    In pertinent part, Rule 704(b) states:


    [n]o expert witness testifying with respect to the mental state or condition of a
    defendant in a criminal case may state an opinion or inference as to whether the
    defendant did or did not have the mental state or condition constituting an
    element of the crime charged or of a defense thereto.

    Although not contemplated below, we note that the quantity of crack involved
    in this case, just over nineteen grams, (J.A. at 59-60), alone would have
    supported an inference of an intent to distribute because such a quantity is
    inconsistent with what would normally be consumed for personal use. See
    United States v. Bell, 954 F.2d 232, 235 (4th Cir.1992) (possession of thirteen
    plus grams of crack sufficiently large to support inference of intent to
    distribute)

    Rule 704(b) refers specifically to expert witnesses "testifying with respect to the
    mental state or condition of a defendant in a criminal case." At least one federal
    circuit court has cited that linguistic limitation as the basis for confining Rule
    704(b)'s prohibition to "testimony based on a 'psychiatric' or similar 'medical'
    analysis of the defendant's mental processes." United States v. Lipscomb, 14
    F.3d 1236, 1242 (7th Cir.1994); see also United States v. Richard, 969 F.2d
    849, 855 n. 6 (10th Cir.) ("The legislative history [of Rule 704(b) ] suggests

    that Congress only intended to limit 'the scope of expert testimony by


    psychiatrists and other mental health experts.' ") (quoting S.Rep. No. 225, 98th
    Cong., 2d Sess. 230 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3412), cert.
    denied, 61 U.S.L.W. 3262 (U.S.1992), 61 U.S.L.W. 3479 (U.S.1993). Given
    our finding that Harding's testimony specifically avoided an opinion as to
    Dunn's intent, we need not address the evidentiary boundaries contemplated by
    Rule 704(b)

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