United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2001 Decided February 15, 2002
No. 00-3119
United States of America,
Appellee
v.
Michael D. Thompson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00016-02)
Adam H. Kurland, appointed by the court, argued the
cause for the appellant.
John K. Han, Assistant United States Attorney, argued the
cause for the appellee. Kenneth L. Wainstein, Acting United
States Attorney at the time the brief was filed, and John R.
Fisher and Roy W. McLeese, III, Assistant United States
Attorneys, were on brief for the appellee.
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Michael D.
Thompson was convicted on one count of unlawful distribution
of fifty grams or more of cocaine base in violation of 21 U.S.C.
s 841(a)(1), 841(b)(1)(a)(3). He appeals, contending that the
district court erroneously excluded evidence and erroneously
charged the jury; he also challenges the sufficiency of the
evidence to support his conviction. We affirm the district
court's rulings and uphold his conviction.
I.
On October 22, 1997 Detective David Dessin of the Metro-
politan Police Department (MPD) and a confidential infor-
mant (Robert) approached Mitchell Douglas (Douglas) to buy
cocaine base. Gov't App. Tab B, at 6-7. Dessin was working
as an undercover agent for the High Intensity Drug-Traffick-
ing Area Task Force, a joint task force of the MPD and the
United States Bureau of Alcohol, Tobacco and Firearms.
8/29/00 Tr. 5-6. Douglas agreed to sell but told Dessin that
he would complete the transaction--$1500 for 62 grams of
cocaine base--the next day at 5:00 p.m. in a nearby Popeye's
Chicken parking lot. Id.
On October 23, 1997 Dessin waited in an unmarked police
car, a Lexus, in the restaurant parking lot. Shortly after
Dessin arrived, Robert drove into the parking lot and parked
next to Dessin. Dessin did not expect to see him because
Robert had earlier told him that he could not participate in
the bust. 8/29/00 Tr. 14. Dessin told him to get into the
Lexus so that the targets would not become suspicious of his
separate arrival. Id. at 15.
At approximately 5:10 p.m., an unknown person later iden-
tified as appellant Thompson approached Dessin and asked,
"Are you Rob's boy?" 8/29/00 Tr. 16. Dessin responded,
"Yeah." Id. Thompson then stated, "Mitch told me to give
you this." Id. Dessin told Thompson to get into the car.
Thompson opened the driver's side rear door and sat behind
Dessin. Dessin asked him, "Do you have that joint?" Id. at
18. Thompson responded by handing him a large Burger
King cup with a lid on it. The cup was later shown to have
contained cocaine base. Dessin then gave Thompson a bun-
dle of money in exchange. Thompson asked, "What's this?"
Dessin responded, "15" (meaning $1500). Id. at 25. Thomp-
son asked, "Are you straight?", to which Dessin replied, "I'm
straight." Id. Thompson got out of the car and walked out
of the parking lot.
Thompson and Douglas were subsequently indicted on vari-
ous drug charges. Douglas was charged in all four counts of
the indictment, which included two separate acts of distribu-
tion and two telephone facilitation counts. Thompson was
named in count four only, which charged both Thompson and
Douglas with unlawful distribution of more than 50 grams of
cocaine base on or about October 23, 1997. Douglas pleaded
guilty and was ultimately sentenced to 70 months' imprison-
ment.
Thompson proceeded to trial as the sole defendant on count
four of the indictment. Following a three-day jury trial,
Thompson was found guilty of unlawful distribution of fifty
grams or more of cocaine base under 21 U.S.C. s 841(a)(1),
841(b)(1)(a)(3). On November 14, 2000 the district court
sentenced Thompson to 188 months' imprisonment, followed
by a four-year term of supervised release.
II
A. Excluded Testimony
At trial, Thompson's defense was that he lacked the requi-
site mens rea because he did not know the cup he delivered to
Dessin contained cocaine base. Thompson testified that be-
fore the transaction with Dessin, Douglas asked him to deliv-
er a Burger King cup that Douglas said contained $2600 to a
Lexus in the Popeye's Chicken parking lot. Thompson as-
sumed that the money was to pay a gambling debt because
Douglas was a "compulsive gambler and owes people at
times." 8/30/00 Tr. 21. The government objected to Doug-
las's statements as hearsay. The district court overruled the
objection, explaining that the statements were offered for the
non-hearsay purpose of "prov[ing] ... the defendant's state
of mind." 8/30/00 Tr. 12.1 Thompson also tried to testify
about what Douglas told him immediately after the event
when he returned with the $1500 Dessin had given him.
8/30/00 Tr. 23. According to Thompson, the evidence was
critical to his defense because it explained the otherwise
unlikely sequence of events, that is, that Thompson received
$1500 in exchange for what he thought was in the cup--
money to pay a gambling debt. Appellant's Br. at 8. Never-
theless the district court sustained the government's hearsay
objection to any testimony regarding Douglas's post-
transaction statements.
On appeal, Thompson argues that Douglas's post-
transaction statements, like Douglas's pre-transaction state-
ments, were offered to show Thompson's state of mind and
therefore should not have been excluded as hearsay.2 Hear-
say is an out-of-court statement offered for the truth of the
matter asserted. Fed. R. Evid. 801(c). An out-of-court
statement that is offered to show its effect on the hearer's
state of mind is not hearsay under Rule 801(c). See United
States v. Baird, 29 F.3d 647, 653 (D.C. Cir. 1994) (district
court improperly excluded evidence bearing on officer's state
of mind as hearsay); United States v. Detrich, 865 F.2d 17, 21
(2d Cir. 1988) (exclusion of evidence of defendant's state of
mind as hearsay reversible error). Regardless of the actual
contents of the closed cup, the jury might have been able to
draw from Douglas's statements an inference as to Thomp-
son's guilty knowledge vel non of the cup's contents. If
Thompson offered Douglas's post-transaction statements only
__________
1 The district court also offered to give a limiting instruction that
the testimony could be "considered only with reference to the
defendant's state of mind and [ ] not ... as evidence of the truth of
what was, in fact, stated to him." 8/30/00 Tr. 12.
2 We review the district court's evidentiary rulings for abuse of
discretion. See United States v. Warren, 42 F.3d 647, 655 (D.C.
Cir. 1994).
as they might tend to bear on his state of mind, the testimony
would not have been hearsay.3
Rule 103(a)(2) of the Federal Rules of Evidence, however,
provides that an error may not be predicated upon a ruling
excluding evidence unless "the substance of the evidence was
made known to the court by offer or was apparent from the
context within which questions were asked." Fed. R. Evid.
103(a)(2). The proponent of excluded evidence must alert the
trial court, in some fashion, to the substance of his proposed
testimony. See United States v. Lavelle, 751 F.2d 1266, 1272
(D.C. Cir. 1985) (defendants's failure to make known basis for
seeking to admit excluded evidence barred appellate review).4
But defense counsel simply attempted unsuccessfully to re-
phrase his question and then finally moved on without appris-
ing the trial court of the substance of the excluded evidence.
8/30/00 Tr. 22-23.5 Because Thompson did not proffer his
__________
3 On appeal, the government acknowledges that Douglas's state-
ments would not be hearsay if offered to show Thompson's state of
mind. Nonetheless, it contends the statements were properly
excluded because they were "clearly irrelevant." See Appellee's Br.
at 12. It suggests that statements made by Douglas to Thompson
minutes after the transaction are irrelevant because they do not
ascertain Thompson's state of mind at the time of the transaction.
Id. The fact that the statements occurred immediately after the
event does not automatically mean that they were not probative of
the defendant's intent. Douglas's post-transaction statements to
Thompson could tend to make Thompson's knowledge of what was
in the cup "more or less probable." See Fed. R. Evid. 401.
4 In Lavelle, 751 F.2d at 1272 n.7, the court cited approvingly the
Fifth Circuit decision in United States v. Winkle, 587 F.2d 710 (5th
Cir.), cert. denied, 444 U.S. 827 (1979), which established that
appellate review of a trial court's exclusion of evidence requires that
an offer of proof be made at trial. Winkle, 587 F.2d at 710; see
also Stockstill v. Shell Oil Co., 3 F.3d 868, 872-73 (5th Cir. 1993),
cert. denied 510 U.S. 1197 (1994).
5 The relevant discussion at trial went as follows:
intended response or otherwise inform the court of the nature
of the evidence sought to be adduced or, at minimum, the
purpose for which the evidence was being offered, we are
substantially hindered in reaching the conclusion that the
district court erred. See United States v. Wright, 783 F.2d
1091, 1098-99 (D.C. Cir. 1986) (exclusion of threatening phone
call as hearsay not error under Rule 103 because defendant
failed to inform district court of nature of testimony); see also
Chedick v. Nash, 151 F.3d 1077, 1084 (D.C. Cir. 1998) (plain-
tiff's appeal of exclusion of emotional distress evidence fore-
__________
Q: [Defense Counsel] Then what happened after you asked
him, "Are you all right?" You said, "Are you straight?" What
happened?
A: [Thompson] I got out of the car, and I left. I went back
across the street towards Mitchell Douglass. I was kind of
confused because I couldn't understand why this guy was
giving me money for money. When I got across the street, my
first intention was to ask Mitchell what was in that cup. But
when I got to him, he was sitting on the railing. He looked like
he was a little upset about something. I went over to him. I
gave him the money. And I sat on the rail beside him. And
he told me that--
[Prosecution] Objection, your Honor. Hearsay.
The Court: Sustained.
Q: [Defense Counsel] What did you do with the money that
you took from the person in the car?
A: I gave it to Mitchell.
Q: Then what happened?
A: Mitchell told me that--
[By the Prosecution] Objection, your Honor.
The Court: Sustained.
Q: [Defense Counsel] What did you hear Mitchell say after
you gave him the money?
[Prosecution] Objection, your Honor.
The Court: Sustained.
9/30/00 Tr. 22-23.
closed because of her failure to inform trial court of legal
basis of admissibility).
Even if a party fails to comply with Rule 103(a), review is
nonetheless available under the "plain error" provision of
Rule 103(d) which states, "[n]othing in this rule precludes
taking notice of plain error affecting substantial rights al-
though they were not brought to the attention of the court."
Fed. Evid. R. 103(d). Under the plain error standard, "be-
fore an appellate court can correct an error not raised at trial,
there must be (1) 'error,' (2) that is 'plain,' and (3) that
'affect[s] substantial rights.' " United States v. Webb, 255
F.3d 890, 897 (D.C. Cir. 2001) (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997) (quotation omitted)). "If
all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error 'seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.' " Id. (quoting
Johnson, 520 U.S. at 467). Under this stringent standard,
the district court's decision to exclude the post-event testimo-
ny did not constitute plain error affecting substantial rights
because it did not "gravely hamper" Thompson's presentation
of his mens rea defense. Wright, 783 F.2d at 1099 (erroneous
exclusion not plain error where duress defense nonetheless
presented). Reviewing Thompson's testimony, we note that
he did testify that Douglas told him before the transaction
that the cup contained money and that he was "confused" by
Dessin's delivery of $1500 in exchange. In the absence of a
proffer showing otherwise, it appears the excluded testimony
was cumulative. In addition, the evidence of Thompson's
guilt was fairly strong. Most of the facts supporting his
conviction were undisputed. See supra 2-3. The only disput-
ed issue at trial was whether Thompson knew that the cup
contained cocaine base which, based on the evidence before it,
the jury could reasonably find that he did. Thompson thus
incurred no significant prejudice from the erroneous ruling.
We conclude therefore that the exclusion of the evidence did
not constitute plain error and, accordingly, we affirm the
district court's ruling.
B. Aiding and Abetting Instruction
Thompson next argues that the trial court erred by giving
an aiding-and-abetting jury instruction that was unsupported
by the evidence. Thompson further contends that the erro-
neous instruction encouraged the jury to convict him without
finding that he possessed the requisite criminal knowledge.
We conclude that the instruction was proper or, at worst,
harmless error.
At trial, Thompson objected to the aiding-and-abetting
instruction on the ground that the government failed to prove
that Thompson and Douglas had a "shared intent" to commit
the crime. 8/30/00 Tr. 79. Thompson acknowledges that his
challenge to the aiding-and-abetting instruction on appeal is
based on a different ground from the one he asserted at trial.
See Appellant's Br. at 13. Objection to a jury instruction is
properly made only if it is couched in terms that alert the
trial court to the substance of the party's position. See
United States v. Breedlove, 204 F.3d 267, 270 (D.C. Cir. 2000).
Because Thompson failed to object on the ground he asserts
on appeal, he can prevail only if the instruction given consti-
tutes plain error. See United States v. Halliman, 923 F.2d
873, 885 (D.C. Cir. 1991); see also Fed.R.Crim.P. 30; Fed.
R.Crim.P. 52(b). Accordingly, we review Thompson's claim
on appeal for plain error. See Webb, 255 F.3d at 897.
At the outset, we believe that the trial court did not err in
giving the instruction because the jury could have reasonably
concluded, based on the evidence before it, that Thompson
aided and abetted Douglas, the principal, in the distribution of
cocaine base to Dessin. Thompson is under the misconcep-
tion that because he physically handed the drugs to Dessin,
he is the only person who could be a principal. See Appel-
lant's Br. at 18.6 Douglas, however, was the original target of
__________
6 Thompson relies exclusively on the holding in United States v.
Martin, 747 F.2d 1404, 1407 (11th Cir. 1984), that an aiding and
abetting instruction can be reversible error if there is no evidence
of any person other than the defendant culpably involved in the
offense. Id. at 1406. The Tenth Circuit, interpreting Martin in
circumstances like those here, concluded that an aiding and abetting
the sting operation, set up the transaction with Dessin, ar-
ranged the location for the sale, provided the narcotics (and
the cup to transport them), chose Thompson as his agent and
was the financial beneficiary of the transaction. Under these
circumstances, the jury could have reasonably found that
Thompson aided and abetted the distribution committed prin-
cipally by Douglas. Cf. United States v. Edmonds, 765
F. Supp. 1112 (D.D.C. 1991) (defendant not required to
personally transfer drugs to undercover agent to support
cocaine distribution conviction; constructive transfer suffi-
cient), rev'd in part on other grounds, 69 F.3d 1172 (D.C. Cir.
1995).7
Even if there were no record evidence to support an aiding-
and-abetting instruction, the error would nonetheless be
harmless. Thompson's complaint, namely, that the instruc-
tion "invited the jury to find Thompson guilty as an 'aider and
abettor' without requiring the jury to find that [he] possessed
the requisite criminal knowledge," Reply Br. 12, is without
merit in view of the instructions given as well as the govern-
ment's focus on the criminal state-of-mind issue. The district
court first laid out the requirements for the offense of posses-
sion with intent to distribute.8 The court then correctly
__________
instruction is proper if there is evidence from which a reasonable
jury could conclude that the defendant aided someone in committing
arson. See United States v. Yost, 24 F2d 99, 104 (10th Cir. 1994).
7 21 U.S.C. s 841(a)(1) makes it unlawful "to ... distribute ... a
controlled substance." "[T]o distribute" means "to deliver," and
"delivery" is defined as "the actual, constructive, or attempted
transfer of a controlled substance, whether or not there exists an
agency relationship." 21 U.S.C. s 802(8) and (11). See also United
States v. Waller, 503 F.2d 1014, 1015-16 (7th Cir. 1974), cert.
denied, 420 U.S. 932 (1975) (rejecting defendant's argument that
she did not distribute drugs because she did not physically hand
them to buyer). That Douglas did not physically transfer the drugs
to Dessin is of no consequence because the evidence plainly sup-
ports Douglas's role as principal in the constructive distribution of a
controlled substance.
8 The court explained in part that:
advised the jury of the requirements of aider and abettor
liability, repeatedly referring to the intent element.9 A rea-
sonable jury would understand that to convict Thompson,
whether as principal or aider and abettor, the government
had to prove that he had the requisite criminal state of mind.
At oral argument, Thompson emphasized that the harm to
him stemmed primarily from the government's use of the
instruction. We disagree. In fact, the government empha-
sized the criminal intent element in its closing argument. See
8/30/00 Tr. 93-96.10 For the foregoing reasons, we reject
Thompson's challenge to the jury charge.
C. Sufficiency of Evidence
Finally Thompson contends that his conviction should be
reversed for insufficiency of intent evidence. In reviewing a
__________
The essential elements of distribution of a controlled substance,
each of which the government must prove beyond a reasonable
doubt, are: ... 2. That the defendant distributed the con-
trolled substance knowingly and intentionally. This means
consciously, voluntarily and on purpose, not mistakenly, acci-
dentally or inadvertently.
8/30/00 Tr. 123 (emphasis added).
9 The court instructed the jury:
Any person, who in some way intentionally participates in the
commission of a crime, aids and abets the principal offend-
er.... To find that the defendant aided and abetted in
committing a crime, you must find that the defendant knowing-
ly associated himself with the person who committed the crime,
that he participated in the crime as something he wished to
bring about, and that he intended by his actions to make it
succeed.... It is sufficient if you find beyond a reasonable
doubt that the crime was committed by someone and that the
defendant knowingly and intentionally aided and abetted the
principal offender in committing the crime.
8/30/00 Tr. 124-25 (emphasis added).
10 The government quoted the text of the instruction that the jury
must find beyond a reasonable doubt that the "defendant knowingly
and intentionally aided and abetted the principal offender in com-
mitting the crime." 8/30/00 Tr. 93.
conviction for sufficiency of the evidence, the court need only
determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. See United States v. Logan, 998 F.2d
1025, 1030 (D.C. Cir. 1993). Thompson, however, has waived
his right to raise a sufficiency of the evidence claim on appeal
by failing to renew his motion for judgment of acquittal at the
close of all of the evidence. See United States v. Sherod, 960
F.2d 1075, 1077 (D.C. Cir.) (failure to renew motion for
acquittal at close of all evidence means there is "nothing to
review"), cert. denied, 506 U.S. 980 (1992). In Sherod, we
endorsed an exception to the rule if declining to consider the
sufficiency of the evidence on waiver grounds caused a "mani-
fest miscarriage of justice." Id. (quotation omitted). Be-
cause the record is not devoid of evidence pointing to Thomp-
son's knowledge of the cup's true contents, cf. United States
v. Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998); Patel v.
Penman, 103 F.3d 868, 878 (9th Cir. 1996), his case does not
fit the exception and his conviction is affirmed.
So ordered.