United States v. Battle

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2009 Decided July 20, 2010

No. 08-3060

UNITED STATES OF AMERICA,
APPELLEE

v.

MICHAEL ANTHONY BATTLE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cr-00234-RMU-1)

Edward C. Sussman, appointed by the court, argued the
cause and filed the brief for appellant.

Anne Y. Park, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney at the time the brief was filed, and Roy W. McLeese III,
Assistant U.S. Attorney.

Before: GARLAND, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.
 2

GARLAND, Circuit Judge: Michael Anthony Battle raises
three challenges to his convictions for distributing crack
cocaine. He contends that the district court erred in finding him
competent to stand trial, that there was insufficient evidence to
support the jury’s verdict that the drugs he sold were crack, and
that there was insufficient evidence that the sale took place
within 1000 feet of a school. We reject all three contentions.
We agree with both parties, however, that Battle’s convictions
on separate counts of distributing crack cocaine and of
distributing the same drugs within 1000 feet of a school merge.
We therefore remand for the district court to vacate the
judgment on the former count.

I

On June 16, 2005, a grand jury returned a seven-count
indictment charging Battle with, inter alia, distributing 50 grams
or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(iii), and distributing 50 grams or more of cocaine
base within 1000 feet of a school, in violation of 21 U.S.C.
§ 860(a).1 At a status hearing on March 24, 2006, Battle’s
attorney requested a preliminary competency screening. After
interviewing Battle, Dr. Robert Benedetti, Chief of Forensic
Legal Services at St. Elizabeth’s Hospital, concluded that Battle
was “competent to stand trial because mental health factors do
not substantially impair his capacity to have a factual and
rational understanding of the proceedings against him and to
properly assist counsel with the preparation of his defense.”
Competency Report of Dr. Robert Benedetti at 2-3 (Mar. 27,
2006).

1
The government subsequently dismissed three of the counts,
which charged him with unlawful use of a telephone to facilitate his
distribution of narcotics, in violation of 21 U.S.C. § 843(b).
 3

Defense counsel then requested a 30-day psychological
evaluation, which the court ordered pursuant to 18 U.S.C.
§ 4241. Battle was admitted to the Federal Medical Center
(FMC) in Devens, Massachusetts, where he was evaluated from
May 9 to June 8, 2006. During that period, forensic
psychologist Dr. Shawn Channell and FMC personnel working
with him conducted behavioral observations, clinical interviews,
physical examinations, and psychological testing of the
defendant. Dr. Channell administered a psychological test
called the Minnesota Multiphasic Personality Inventory: Second
Edition (MMPI-2), as well as another called the Evaluation of
Competency to Stand Trial: Revised (ECST-R), which assesses
a defendant’s understanding of proceedings and ability to work
with counsel. He also determined that Battle did not have a
documented history of mental illness.

At the conclusion of the month-long evaluation -- and
following interviews with defense counsel, the prosecutor, and
Battle’s mother -- Dr. Channell diagnosed Battle with Adult
Antisocial Behavior and alcohol and cannabis abuse. Like Dr.
Benedetti, however, he concluded that Battle was competent to
stand trial because “there is no present objective evidence to
indicate [that Battle] suffers from a mental disorder which
would impair his ability to understand the nature and
consequences of the court proceedings against him, or impair his
ability to properly assist counsel in his defense.” Competency
Report of Dr. Shawn Channell at 8 (June 28, 2006).

Following Battle’s evaluation at FMC, defense counsel
retained Dr. Lanning Moldauer, a clinical psychologist, to
conduct an independent psychological evaluation. Dr. Moldauer
interviewed Battle once, spoke by telephone with his mother for
thirty minutes, and observed a meeting between Battle and his
attorney. Thereafter, Moldauer concluded that Battle was not
competent to stand trial because he “experiences significant
 4

grandiose delusions with a strong religious basis” that are
“almost certainly psychotic in nature, and . . . preclude[] his
working with his attorney effectively.” Report of Dr. Lanning
Moldauer at 3-4 (Nov. 21, 2006).

The defense then requested a competency hearing pursuant
to 18 U.S.C. § 4247(d), and the court granted the request. In
light of Dr. Moldauer’s conclusion, the court granted the
government’s motion for re-evaluation of the defendant. During
the second observation period, which took place at FMC Devens
from February 7 to March 9, 2007, Dr. Channell conducted
additional psychological tests, including a second MMPI-2. At
the end of the period, Dr. Channell issued another report, again
finding Battle competent. Although “Mr. Battle’s personality
characteristics have, and are likely to continue, to result in
significant difficulty working with any attorney,” Channell said,
his behavior was “volitional” and did “not meet diagnostic
criteria for Delusional Disorder.” Report of Dr. Channell at 4,
9 (Mar. 21, 2007). After Dr. Channell issued his report, Dr.
Moldauer interviewed Battle for a second time.

The district court held competency hearings on June 12 and
September 6, 2007. Consistent with their reports, Dr. Channell
and Dr. Benedetti testified that Battle was competent to stand
trial. Dr. Moldauer testified that he was not. Thereafter, the
district court found that the government had proved “by a
preponderance of the evidence that the defendant presently
possesses competence and . . . has the capacity to stand trial.”
United States v. Battle, No. 05-0234, Mem. Op. at 9, 11-12
(D.D.C. Sept. 20, 2007).

Trial commenced on April 8, 2008. Metropolitan Police
Department Officer Darrick Wallace testified that, acting in an
undercover capacity, he had called Battle on March 24, 2005,
and arranged to “purchas[e] 62 grams of crack cocaine.” Trial
 5

Tr. 41-42 (Apr. 8, 2008). The two met inside Wallace’s
undercover automobile, which he parked in an alley near the 100
block of Hamilton Street, N.W. Inside the car -- and captured
on video surveillance -- Battle sold the drugs to Wallace.

Three witnesses testified concerning the nature of the
narcotics that Battle sold to Officer Wallace. Wallace described
the drugs he purchased as “a chunky substance.” Id. at 43.
Detective Eric Fenton, the lead officer on the case and the
person to whom Wallace handed the drugs after the purchase,
testified that they “were two large, . . . chunky, white rock
substances.” Id. at 119. And a Drug Enforcement
Administration (DEA) chemist testified that the drugs were an
“off white, chunky material,” weighing 60.3 grams and
containing cocaine base with a purity of 74 percent. Trial Tr.
26-27 (Apr. 9, 2008). In addition, the parties agreed on the
following stipulation:

There are two types of cocaine used in the District
of Columbia: Powder and cocaine base, also known as
crack. Crack comes in a hard, rock-like form. Crack
is typically ingested into the body by smoking it.
Wholesale amounts of crack are broken down into
smaller and smaller amounts until the drug is typically
packaged into one or two useable amounts for street
sale.
....

A “62” is approximately 62 grams of crack. This
is a standard amount for a mid-level or wholesale
dealer, . . . although the actual weight of a “62” may be
slightly more or less than 62 grams.

Id. at 47.
 6

Detective Fenton also testified concerning the distance
between the drug transaction and a local elementary school. He
recounted that, in late April 2005, he had returned to the scene
of the March 24 transaction to measure the distance from the
location of Battle’s drug sale to Cuno Rudolph Elementary
School. Using a measuring wheel, Fenton measured 950 feet
from the place where Officer Wallace had told him the
transaction took place to the school. The government also
entered into evidence a photograph of Fenton standing in front
of the school holding the measuring wheel, a separate
photograph of the wheel itself indicating a 950-foot distance,
and an aerial map of the school and area.

Upon cross-examination, Detective Fenton could not recall
whether, on the day he made the measurement, Officer Wallace
had accompanied him to the location of the drug sale or had
merely described it to him. Defense counsel also questioned
Detective Fenton about the precise point in the alley at which he
began his measurement and asked him to mark that location on
a map. Following that day’s testimony, the prosecutor directed
Fenton to return to the scene with Officer Wallace. The next
day the government recalled Fenton, who testified that -- during
the return trip -- Wallace confirmed that the point at which
Fenton had started measuring was the actual location at which
Wallace had bought the drugs from Battle.2 Fenton also testified
that he had marked the wrong location on the map the previous
day.

The defense called one witness, a private fingerprint
consultant, who testified that the plastic bags that contained the
drugs purchased by Officer Wallace were of a kind that could

2
Battle did not raise a hearsay objection to Fenton’s testimony
and does not assert one here.
 7

have retained latent fingerprints. (The government had not
proffered any fingerprint evidence.)

The jury convicted Battle on two counts relating to the
March 24, 2005 drug transaction: distribution of 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(A)(iii) (Count 4); and distribution of 50 grams or
more of cocaine base within 1000 feet of a school, in violation
of 21 U.S.C. § 860(a) (Count 5).3 The judge sentenced Battle to
135 months on each count, to run concurrently.

Battle raises three issues on appeal. First, he contends that
the district court erred in finding him competent to stand trial.
Second, he argues that there was insufficient evidence to support
the jury’s verdict that the drugs he sold to Officer Wallace were
“cocaine base” within the meaning of § 841(b)(1)(A)(iii).
Finally, he maintains that there was insufficient evidence that
the sale took place within 1000 feet of a school, within the
meaning of 21 U.S.C. § 860(a). We consider these arguments
below.

II

“[T]he Constitution does not permit trial of an individual
who lacks ‘mental competency.’” Indiana v. Edwards, 128 S.
Ct. 2379, 2383 (2008); see 18 U.S.C. § 4241(d). The Supreme
Court has “define[d] the competency standard as including both
(1) ‘whether’ the defendant has ‘a rational as well as factual
understanding of the proceedings against him’ and (2) whether
the defendant ‘has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding.’”

3
The jury found Battle not guilty on the remaining counts, which
charged him with distributing 50 grams or more of cocaine base on
two other days.
 8

Edwards, 128 S. Ct. at 2383 (quoting Dusky v. United States,
362 U.S. 402, 402 (1960)) (emphasis omitted); see Drope v.
Missouri, 420 U.S. 162, 171 (1975); 18 U.S.C. § 4241(d). This
court will uphold a district court’s competency determination
“unless it is clearly arbitrary or erroneous.” United States v.
Caldwell, 543 F.2d 1333, 1349 (D.C. Cir. 1975); see United
States v. Klat, 213 F.3d 697, 702 (D.C. Cir. 2000).

Battle concedes that he had a rational and factual
understanding of the proceedings. Appellant’s Br. 24. He
contests only his “present ability to consult with his attorney.”
Id. In our view, the district court’s explanation for why it found
Battle to have that ability was neither arbitrary nor clearly
erroneous.

First, Dr. Channell testified that he did not detect any
indication that Battle suffered from delusional thinking --
whether “with a . . . religious basis” or otherwise -- during his
two extended stays at FMC Devens. See Competency Hearing
Tr. 170-71 (Sept. 6, 2007). The district court was reasonable in
crediting Channell’s testimony, and in rejecting Moldauer’s
contrary conclusion. Mem. Op. at 10. As the court noted,
Channell had significant time to observe Battle, who was under
his custody for two month-long observation periods. By
contrast, Dr. Moldauer saw Battle on only three days: twice
when he interviewed Battle and once when he observed a
meeting between Battle and his counsel.

Second, Dr. Channell testified, and the court noted, that
Battle had no known history of mental illness or treatment.
Although Dr. Moldauer was of the opinion that mental health
history is “[n]ot terribly” important in assessing competency,
Competency Hearing Tr. 40 (Sept. 6, 2007), Dr. Channell
considered it to be probative, see id. at 143. The court was well
within its discretion to do the same.
 9

Third, Dr. Channell testified, without contradiction, that
Battle’s score on a standard competency test -- the ECST-R --
raised little or no concern regarding his ability to understand the
proceedings and assist his attorney. Although the parties did
dispute the significance of the MMPI-2 scores, particularly the
results of the second administration of that test, the district court
was not unreasonable in agreeing with Channell’s decision not
to credit those results in light of the large number of questions
to which Battle answered both “yes” and “no.” The court was
not alone in that conclusion: when Dr. Moldauer contacted the
scoring service about the results, the service advised that it
would not provide an interpretive report because it considered
the test “invalid” due to the large number of double-answered
responses. Competency Hearing Tr. 61-62 (June 12, 2007).

Fourth, although Dr. Channell “confirm[ed] Dr. Moldauer’s
and defense counsel’s assessment of [Battle’s] recalcitrant and
irritable temperament,” Mem. Op. at 10, Channell viewed that
behavior as volitional, the result of a conscious choice rather
than the product of a mental defect Battle could not control. The
relevant legal question is not whether appellant will “assist
properly in his defense,” but whether “he [is] able to do” so.
United States v. Vachon, 869 F.2d 653, 655 (1st Cir. 1989)
(internal quotation marks omitted). As the district court
correctly noted, “‘uncooperativeness with one’s counsel does
not alone prove an inability to communicate.’” Mem. Op. at 10
(quoting Caldwell, 543 F.2d at 1349 n.70). And the court was
well supported in accepting Dr. Channell’s “conclu[sion] that
the defendant can participate in his defense.” Id. (emphasis
added).

Finally, the district court found “by its own observations
that the defendant’s demeanor was controlled, responsive and
appropriate to the testimony and arguments heard during the
competency hearing.” Id. at 9. This, the court said, was further
 10

evidence that Battle could control his behavior. Id. at 11.
Because “evidence of a defendant’s . . . demeanor at trial . . . [is]
relevant” in determining competency, Drope, 420 U.S. at 180,
the court was justified in relying on its own observations to
confirm Dr. Channell’s views.

In United States v. Caldwell, we concluded our analysis of
a defendant’s competency challenge as follows: “In sum, the
evidence was merely contradicted, and the judge found the
Government’s evidence more persuasive.” 543 F.2d at 1349.
We reach the same conclusion here and, as in Caldwell, reject
the defendant’s challenge.

III

Battle also raises two challenges to the sufficiency of the
evidence supporting his convictions. Our review is highly
circumscribed. “[W]e must accept the jury’s guilty verdict if we
conclude that ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Andrews, 532 F.3d 900, 903 n.1 (D.C. Cir.
2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“In making that determination, the prosecution’s evidence is to
be viewed in the light most favorable to the government,
drawing no distinction between direct and circumstantial
evidence, and giving full play to the right of the jury to
determine credibility, weigh the evidence and draw justifiable
inferences of fact.” Id. (internal quotation marks omitted).

A

Battle first challenges the sufficiency of the evidence that
he sold “cocaine base” within the meaning of 21 U.S.C.
§ 841(b)(1)(A)(iii). As this court has explained, “[u]nder § 841,
a ‘certain quantity of “cocaine base” will trigger much stiffer
 11

penalties than an equivalent quantity of powdered cocaine.’”
United States v. Pettiford, 517 F.3d 584, 592 (D.C. Cir. 2008)
(quoting United States v. Powell, 502 F.3d 147, 148 n.1 (D.C.
Cir. 2007)). We have “held that, to ‘uphold the higher penalties
that § 841 prescribes for crimes involving “cocaine base,”’ the
government must prove that the kind of cocaine base seized was
either ‘smokable cocaine base or crack cocaine.’” Id. (quoting
United States v. Johnson, 437 F.3d 69, 71 (D.C. Cir. 2006)).
“[T]he government,” however, “may prove that cocaine base is
crack cocaine in a variety of ways.” Id. at 593.

In United States v. Lawrence, 471 F.3d 135 (D.C. Cir.
2006), the government produced the following evidence:

[i] that the substance in question contained cocaine
base, [ii] that at the time of the purchase the drugs
comprised ‘a large white rock substance,’ and [iii] that
the sale of the drugs followed conventional practices
for the sale of crack cocaine. In addition, [iv] the
undercover officers who purchased the drugs from
[defendant] testified that he provided these drugs in
response to their requests to buy crack.

Id. at 139. Such evidence, we held, was sufficient to support a
verdict of guilty under 21 U.S.C. § 841(b) for distribution of
crack cocaine.

The evidence in this case is indistinguishable. The DEA
chemist testified that the substance at issue contained cocaine
base, with a purity of 74 percent. She also testified that it was
an “off white, chunky material,” Trial Tr. 26 (Apr. 9, 2008),
while the officers described it as “a chunky substance” and as
“chunky, white rock,” Trial Tr. 43, 119 (Apr. 8, 2008).
Testimony and the parties’ stipulation established that the
transaction followed conventional practices for the sale of crack:
 12

it was packaged in a standard amount for a mid-level or
wholesale dealer, an amount known as a “62” that weighed
approximately 62 grams. Finally, as in Lawrence, the
undercover officer testified that Battle provided the drugs in
response to his request for “62 grams of crack.” Id. at 42.4

As the facts of Battle’s case are indistinguishable from
those in Lawrence, we reject his challenge to the sufficiency of
the evidence that he sold crack cocaine.

B

Battle also challenges the sufficiency of the evidence that
the sale occurred within 1000 feet of a school. Section 860(a)
imposes enhanced penalties on any person “distributing . . . a
controlled substance . . . within one thousand feet of[] the real
property comprising a public or private elementary . . . or
secondary school.” 21 U.S.C. § 860(a). The government must
prove that the distribution took place within 1000 feet of “an
actual” or “operating” school, “not just a school building that is
no longer (or not yet) in use as a school.” United States v.
Hawkins, 104 F.3d 437, 440-41 (D.C. Cir. 1997).

1. Battle’s first contention is that the government failed to
introduce sufficient evidence for a jury to conclude that the
relevant distance was in fact within 1000 feet. If believed,
Detective Fenton’s testimony certainly provided sufficient
evidence: he testified that he used a measuring wheel to

4
Although Battle claims that the government’s failure to
introduce evidence that the drugs were “smokable” is fatal, “[o]ur
cases make clear . . . that ‘evidence about the substance’s
smokeability’ is not required to sustain a finding that it is crack.”
United States v. Johnson, 519 F.3d 478, 486 (D.C. Cir. 2008) (quoting
Johnson, 437 F.3d at 75).
 13

measure the distance from the location of the drug transaction to
the front of the school, and that the distance was 950 feet.
Battle’s real contention is that the jury should not have believed
Fenton’s testimony because, in his initial testimony, he marked
the wrong location on the map and could not recall whether
Officer Wallace had accompanied him to the alley where
Wallace had purchased the narcotics. Although Fenton
corrected both deficiencies during the second day of his
testimony, Battle views those corrections as not credible. But
“assessment of witness credibility is a job for the jury rather
than this court,” United States v. Clark, 184 F.3d 858, 865 (D.C.
Cir. 1999), and the jury had ample opportunity to evaluate
Fenton’s testimony both times he took the stand.

Citing United States v. Applewhite, 72 F.3d 140 (D.C. Cir.
1995), Battle further suggests that the “relatively small
discrepancy” between the statutory requirement of 1000 feet and
Fenton’s 950-foot measurement renders Fenton’s testimony
insufficient. Appellant’s Br. 32-33. But the problem in
Applewhite was that the government had “measured only the
distance between the school and a point short of the location of
the drugs,” and had presented no evidence from which the jury
could “determine the omitted distance.” 72 F.3d at 144. Here,
by contrast, there was no omitted distance: Detective Fenton
testified that his starting point was where Officer Wallace told
him the transaction took place. See Trial Tr. 142 (Apr. 8, 2008).

2. Battle’s second contention is that the government
“proved nothing more than that the building had at some point
likely been a functioning elementary school.” Appellant’s Br.
34. The government’s evidence, however, was sufficient under
our case law.

Detective Fenton testified that he measured the distance to
the “Cuno Rudolph Elementary School.” Trial Tr. 121 (Apr. 8,
 14

2008). He repeatedly referred to the end-point of his
measurement as “Rudolph Elementary School” and “the
school.” Id. at 120, 121, 124, 125; Trial Tr. 54 (Apr. 9, 2008).
In addition, the government introduced a photograph of
Detective Fenton standing in front of the school with the
measuring wheel -- a photo that showed the school’s fence, an
event sign, and a child exiting the building. Gov’t Ex. 8; see
Trial Tr. 120 (Apr. 8, 2008).

In Hawkins, this court found it sufficient that an “Officer
. . . testified that [the defendant’s] drug offenses occurred within
1,000 feet of the ‘Garnett-Patterson Junior High School[,]’ . . .
‘a middle school.’” 104 F.3d at 441. “[A] reasonable juror,” we
held, “could take the [officer’s use of the] word ‘school’ to refer
to an operating school.” Id. Likewise, in United States v.
Singletary, 69 F. App’x 468 (D.C. Cir. 2003), we held that an
officer’s testimony “that the offense occurred within 666 feet of
the ‘Raymond Elementary School,’ which the officer also
referred to simply as ‘the elementary school,’ [was] sufficient to
permit a reasonable juror to conclude that the offense occurred
within 1,000 feet of an operating school.” Id. at 469. As the
evidence in Hawkins and Singletary is on all fours with the
evidence in this case, we reach the same result: a reasonable
juror could have found the defendant guilty beyond a reasonable
doubt of distributing narcotics within 1000 feet of an operating
school.

IV

Although we have concluded that the government offered
sufficient evidence to support Battle’s convictions both for
distributing 50 grams or more of cocaine base under 21 U.S.C.
§ 841 (Count 4), and for distributing the same drugs within 1000
feet of an elementary school under 21 U.S.C. § 860(a) (Count 5),
the government commendably points out that there is still a
 15

problem in sustaining both convictions. Appellee’s Br. 52 n.25.
As the government observes, under United States v. Law, the
two convictions must merge because conviction on both counts
would violate the Double Jeopardy Clause. 528 F.3d 888, 909
(D.C. Cir. 2008). Accordingly, we accept the government’s
suggestion to direct the district court to vacate the § 841
conviction (Count 4). Because the court sentenced Battle to the
same, concurrent terms of imprisonment for the § 841 and
§ 860(a) convictions, resentencing is unnecessary. See United
States v. Baylor, 97 F.3d 542, 548 (D.C. Cir. 1996); United
States v. Holiday, 482 F.2d 729, 731 n.6 (D.C. Cir. 1973).

V

For the foregoing reasons, we affirm the judgment of the
district court in most respects, but remand the case for vacation
of Count 4 of the original indictment.

So ordered.