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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2004 Decided August 17, 2004
No. 02-3028
UNITED STATES OF AMERICA,
APPELLEE
v.
JUAN PETIS MCLENDON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00011–01)
Kenneth D. Auerbach argued the cause and filed the briefs
for appellant.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J.
Tourish, Jr., and Arvind K. Lal, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: A jury convicted defendant Juan
Petis McLendon of several narcotics offenses. At trial, al-
though the district court had barred the government from
presenting testimony about the defendant’s involvement with
guns, a government witness testified that he had found
ammunition in the defendant’s bedroom. McLendon’s sole
contention on appeal is that the court abused its discretion in
denying his motion for a mistrial following that testimony.
We conclude that the court did not abuse its discretion, and
we therefore affirm the defendant’s conviction.
I
In January 1999, a federal grand jury in the District of
Columbia indicted McLendon for the following crimes: (i)
three counts of using a telephone to facilitate the distribution
of cocaine base, in violation of 21 U.S.C. § 843(b); (ii) three
counts of distributing 50 or more grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (iii) three
counts of distributing 50 or more grams of cocaine base
within 1000 feet of a school, in violation of 21 U.S.C. § 860(a);
(iv) one count of carrying a firearm during a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1); (v) one count of
assaulting and resisting a police officer, in violation of D.C.
Code § 22-505(a) (1999); and (vi) one count of carrying a
pistol without a license, in violation of D.C. Code § 22-3204(a)
(1999).
McLendon’s first trial began on February 23, 1999. It
ended with the return of a partial verdict of not guilty on the
firearms counts, as well as on the charge of assaulting an
officer. The court declared a mistrial as to the remaining
counts.
In March 1999, the grand jury returned a superseding
indictment containing the remaining counts from the first
indictment as well as additional violations of 21 U.S.C.
§§ 843(b), 841(a)(1) and (b)(1), and 860. That case went to
3
trial in July 1999. It ended in a mistrial after the jury was
unable to reach a verdict on any count.
A third trial — the subject of this appeal — began on
January 4, 2000. That trial ended with a guilty verdict on all
counts. After various procedural delays, McLendon was
sentenced to a total of 235 months’ incarceration on February
22, 2002.
The government’s trial evidence showed that, in the spring
of 1998, McLendon asked his friend Gloria Pearson to help
him find customers to whom he could sell drugs. Unfortu-
nately for McLendon, Pearson was working as a confidential
informant for the United States Park Police. Pearson report-
ed McLendon’s request to the police, who recorded a tele-
phone call in which Pearson arranged for McLendon to sell a
half ounce of crack cocaine to her ‘‘girlfriend’s husband’’ —
who was, in fact, Detective Richard White. 1/6/00 Tr. at 82.
On July 6, 1998, McLendon drove to a parking lot in Wash-
ington, D.C., where he met Pearson and White in White’s car.
There, he gave White approximately half an ounce of crack in
exchange for $600. The entire transaction was videotaped by
two cameras, one inside White’s car and another in a nearby
police van.
Following this initial transaction, McLendon started com-
municating directly with White. To arrange further deals,
McLendon called and paged White regularly. These calls
resulted in four more transactions between July 9, 1998 and
September 17, 1998, in each of which McLendon gave White
approximately 62 grams of crack in exchange for $1900.
Each transaction took place in White’s parked car, and each
was taped. After the final transaction on September 17,
1998, McLendon was arrested on the scene. Later that day,
the police searched McLendon’s bedroom in his mother’s
house in Maryland and recovered, among other things, a
paper bag containing crack cocaine residue, a mirror with a
razor blade, a digital scale, hundreds of small ziplock bags,
and several rounds of ammunition. The following day, the
police searched McLendon’s car, where they found a plastic
bag of cocaine base.
4
McLendon testified in his own defense. He did not deny
that he exchanged crack for cash, but contended that he had
been entrapped into doing so. McLendon testified that he
was an intimate friend of Gloria Pearson, who told him that
she needed his help in obtaining money for drugs. According
to McLendon, Pearson said that she had sold drugs to her
girlfriend’s husband, but that he had not paid her for them.
Pearson allegedly told McLendon that she wanted the hus-
band to think the drugs were coming from McLendon, be-
cause she thought that would ensure that the husband would
pay. McLendon said he only agreed to help after Pearson
said her mother had cancer. According to McLendon, Pear-
son provided all of the drugs that he sold to White; McLen-
don only pretended they were his. The defendant also said
that after each transaction, he turned over to Pearson all of
the money that White had paid him, keeping only enough for
gas and haircuts.
Before the third trial began, McLendon’s lawyer com-
plained that witnesses in the second trial had made remarks
about guns despite the district court’s decision — midway
through the second trial — to exclude such testimony. The
court reiterated its instruction barring testimony ‘‘about
guns.’’ 1/4/00 Tr. at 6. Thereafter, on the second day of the
third trial, Investigator Anastasios Kapetanakos testified
about what he had found in his search of McLendon’s bed-
room. After Kapetanakos listed a number of drug-related
items, the prosecutor asked whether there was ‘‘anything else
recovered.’’ 1/5/00 Tr. at 178. The investigator answered
that he had also recovered ‘‘several rounds of ammunition.’’
Id. The court immediately interrupted the testimony and
instructed the jury to ‘‘[d]isregard that reference to ammuni-
tion.’’ Id.1
McLendon’s lawyer approached the bench and moved for a
mistrial. The district court denied the request, stating that it
would give a ‘‘more powerful curative instruction.’’ Id. The
1 The court apparently interpreted its prior instruction barring
testimony ‘‘about guns’’ as including ammunition, 1/4/00 Tr. at 6, an
interpretation the government does not dispute.
5
court then advised the jury as follows: ‘‘[A]gain I remind you
Mr. McLendon, first of all, is not charged with possession of
any contraband recovered from that home, and he’s certainly
not charged with possession of any ammunition, and I in-
struct you to disregard that question and disregard the
answer.’’ Id. at 179. Employing a leading question, the
prosecutor then went on to elicit the fact that the investigator
had also found a ledger in McLendon’s bedroom, id., a ledger
shown to contain Detective White’s pager number.2
At several points later in the trial, the court discussed the
investigator’s mention of ammunition and what should be
done about it. The court stated that it believed the prosecu-
tor’s representation that he had told the witness not to
mention weapons, and concluded that the witness had done so
either intentionally or negligently. 1/7/00 a.m. Tr. at 104-08.
In the end, however, the court found that the ‘‘[o]ne isolated
reference to the ammunition is something that can be disre-
garded’’ by the jury. Id. at 106. The trial continued without
further reference to ammunition, and the jury returned a
guilty verdict against McLendon on all counts.
McLendon now appeals. His sole claim is that the trial
judge erred in refusing to grant a mistrial in light of the
investigator’s mention of the ammunition.
II
We review the trial judge’s denial of McLendon’s motion
for a mistrial only for an abuse of discretion. United States
v. Gartmon, 146 F.3d 1015, 1027 (D.C. Cir. 1998); United
States v. Williams, 822 F.2d 1174, 1188 (D.C. Cir. 1987). ‘‘A
mistrial is a severe remedy — a step to be avoided whenever
possible, and one to be taken only in circumstances manifest-
ing a necessity therefor.’’ United States v. Clarke, 24 F.3d
257, 270 (D.C. Cir. 1994) (internal quotation marks omitted).
The single most important consideration in ruling on a motion
2 The government explains that it was this evidence, and not
testimony concerning the ammunition, that the prosecutor had been
attempting to elicit by asking the investigator whether he had
recovered ‘‘anything else.’’ Appellee’s Br. at 14.
6
for a mistrial is the extent to which the defendant was
unfairly prejudiced. Id.; United States v. Tarantino, 846
F.2d 1384, 1413 (D.C. Cir. 1988). In making that determina-
tion, we consider a number of factors, including the force of
the unfairly prejudicial evidence, whether that force was
mitigated by curative instructions, and the weight of the
admissible evidence that supports the verdict. See United
States v. Eccleston, 961 F.2d 955, 959-60 (D.C. Cir. 1992). In
this case, the analysis of those factors is straightforward.
First, there was nothing unfairly prejudicial, per se, about
the investigator’s testimony that he had recovered ammuni-
tion from McLendon’s room. See United States v. Gloster,
185 F.3d 910, 914 (D.C. Cir. 1999) (noting that ‘‘Rule 403
focuses not on prejudice but on the danger of unfair preju-
dice’’) (internal quotation marks omitted); cf. Bank of Nova
Scotia v. United States, 487 U.S. 250, 255-56 (1988) (holding
that ‘‘a court may not disregard the doctrine of harmless
error simply ‘in order to chastise what the court view[s] as
prosecutorial overreaching’ ’’ (quoting United States v. Has-
ting, 461 U.S. 499, 507 (1983))). As the district court ac-
knowledged, this circuit has frequently recognized that guns
and drugs go together in drug trafficking,3 and that evidence
of a defendant’s possession of the former can properly be
used to show his connection to the latter.4 Indeed, in a case
directly on point, we held that a court had properly admitted
‘‘bullets found in [a defendant’s] bedroom to prove that she
3 See, e.g., United States v. Brown, 334 F.3d 1161, 1171 (D.C. Cir.
2003); United States v. Conyers, 118 F.3d 755, 757 (D.C. Cir. 1997).
4 See United States v. Dunn, 846 F.2d 761, 764 (D.C. Cir. 1988)
(holding ‘‘that juries may infer an intent to distribute’’ narcotics
‘‘from the presence of firearms’’); United States v. Payne, 805 F.2d
1062, 1065 (D.C. Cir. 1986) (holding that guns were properly
admitted to prove intent to distribute drugs because ‘‘it has uni-
formly been recognized that substantial dealers in narcotics possess
firearms and that such weapons are as much tools of the trade as
more commonly recognized drug paraphernalia’’); see also United
States v. Moore, 104 F.3d 377, 381 (D.C. Cir. 1997) (holding that
evidence of the defendant’s ‘‘connection to the guns suggests pos-
session of the drugs found next to the guns’’).
7
was engaged in the [narcotics] trade.’’ United States v.
Jenkins, 928 F.2d 1175, 1180 (D.C. Cir. 1991). According-
ly — as McLendon’s counsel correctly conceded at oral
argument — had the district court initially permitted the
admission of gun testimony in this case, we could not have
found an abuse of the court’s discretion. Oral Arg. Tape at
3:10-3:35.
Of course, the district court did not initially admit the gun
evidence, but rather excluded it under Federal Rule of Evi-
dence 403 on the ground that the danger of unfair prejudice
outweighed the evidence’s probative value. 7/13/99 Tr. at 61;
see FED. R. EVID. 403. The court reached that conclusion, it
said, because the defendant had been acquitted of gun
charges in the first trial and was not charged with a gun
crime in the superseding indictment. 7/13/99 Tr. at 58-61.
The former point is inapposite because the ammunition recov-
ered from the bedroom was unrelated to the charges of which
McLendon had been acquitted at the first trial,5 and both
points ignore the case law permitting admission of gun evi-
dence as probative of narcotics violations. See supra note 4.
Nonetheless, we review a court’s determination under Rule
403 ‘‘most deferentially.’’ Gartmon, 146 F.3d at 1020 (inter-
nal quotation marks omitted).
But we also review most deferentially a district judge’s
decision to deny a mistrial, and we should not lose sight of the
fact that the same judge who initially weighed the Rule 403
balance against admission of the evidence, subsequently de-
termined that the investigator’s testimony did not warrant a
mistrial. Hence, even if the investigator’s testimony were
unfairly prejudicial, the judge’s description of that testimony
as ‘‘one isolated reference to the ammunition’’ was accurate,
and his conclusion that it was ‘‘something that can be disre-
garded’’ by the jury is one to which we defer. 1/7/00 a.m. Tr.
at 106.
5 Those charges were for carrying a firearm during a drug
trafficking offense and carrying a pistol without a license, both
premised on a gun that McLendon allegedly had on his person at
the time of his arrest.
8
This brings us to the second factor in our analysis, the
district court’s curative instructions. Immediately upon hear-
ing the investigator’s reference to ammunition, the court cut
off the witness and told the jury to ‘‘[d]isregard that refer-
ence to ammunition.’’ 1/5/00 Tr. at 178. It then followed up
with a sterner admonition, reminding the jury that McLendon
was ‘‘not charged with possession of any ammunition’’ and
instructing the jurors ‘‘to disregard that question and disre-
gard the answer.’’ Id. at 179. During final jury instructions,
the court further instructed, without mentioning ammunition,
that ‘‘[i]f, after a witness answered a lawyer’s question, I
ruled that the answer should be stricken, you should disre-
gard both the question and the answer in your deliberations.’’
1/7/00 p.m. Tr. at 37.
In denying the motion for a mistrial, the district court
reasoned that the jury ‘‘can follow instructions to disregard
testimony.’’ Id. at 107. Both the Supreme Court and this
court have presumed the same thing.6 Given the brevity of
the offending testimony and the clarity of the district court’s
instructions, we have no reason to doubt the validity of that
presumption in this case. See United States v. Burroughs,
935 F.2d 292, 295 (D.C. Cir. 1991) (noting that an appellate
court properly defers to a trial court’s evaluation of ‘‘the
6 See Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (‘‘We normally
presume that a jury will follow an instruction to disregard inadmis-
sible evidence inadvertently presented to it, unless there is an
overwhelming probability that the jury will be unable to follow the
court’s instructions and a strong likelihood that the effect of the
evidence would be devastating to the defendant’’) (internal quota-
tion marks and citations omitted); United States v. Walker, 99 F.3d
439, 443 (D.C. Cir. 1996) (‘‘We have no cause to doubt that the jury
followed the court’s curative instructions [to disregard improper
testimony], therefore we do not believe the trial judge abused his
discretion in denying the motion for a mistrial.’’); United States v.
Burroughs, 935 F.2d 292, 295 (D.C. Cir. 1991) (holding that, ‘‘[u]n-
less there is some good reason for finding otherwise TTT courts
proceed on the basis that the jury does comply’’ with cautionary
instructions).
9
probable effect of cautionary instructions swiftly and firmly
administered’’).
Finally, in determining the impact of unfairly prejudicial
evidence on a jury, we weigh the extent of that prejudice
against the strength of the admissible evidence. See Eccle-
ston, 961 F.2d at 959-60. Here, the admissible evidence was
extremely powerful. As noted above, McLendon did not
dispute that he sold drugs to Detective White, relying instead
on the defense of entrapment. That defense is comprised of
two elements: ‘‘government inducement of the crime, and a
lack of predisposition on the part of the defendant to engage
in the criminal conduct.’’ United States v. Evans, 216 F.3d
80, 90 (D.C. Cir. 2000) (internal quotation marks omitted).7
McLendon contends that his testimony regarding his
friendship with Pearson and her mention of her mother’s
cancer was sufficient to show ‘‘inducement.’’ We need not
decide whether McLendon is correct,8 however, given the
strength of the government’s evidence of McLendon’s predis-
position. See United States v. Hanson, 339 F.3d 983, 989
(D.C. Cir. 2003); United States v. Walls, 70 F.3d 1323, 1329
(D.C. Cir. 1995). The tapes of the telephone calls and in-
person transactions demonstrated McLendon’s experience in
selling, and eagerness to sell, narcotics. During the first
transaction, for example, McLendon boasted that he knew his
‘‘stuff’’ was good because he had cooked the powder cocaine
into crack himself. 1/4/00 Tr. at 204-05. He encouraged
White ‘‘to come back to him’’ if people liked McLendon’s
product. Id. at 204. In a telephone conversation following
7 See United States v. Glover, 153 F.3d 749, 754 (D.C. Cir. 1998)
(‘‘[T]he defendant bears the initial burden of showing government
inducement; if he is successful, the burden then shifts to the
government to prove the defendant was predisposed to commit the
crime.’’).
8 Government behavior amounts to inducement only ‘‘when it was
‘such that a law-abiding citizen’s will to obey the law could have
been overborne.’ ’’ Glover, 153 F.3d at 754 (quoting United States
v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984)); see also United States
v. Hanson, 339 F.3d 983, 989 (D.C. Cir. 2003).
10
that transaction, McLendon told Pearson that his ‘‘bags’’ were
packed and ‘‘ready to go,’’ which, she testified, meant that he
was ready to sell more crack. 1/6/00 Tr. at 91-92. Thereaf-
ter, McLendon and White spoke repeatedly to arrange addi-
tional transactions. See, e.g, 1/5/00 Tr. at 23-26. On one
particular day, McLendon paged White three times. These
repeated efforts to initiate additional deals persuasively dem-
onstrated McLendon’s predisposition.9
In light of this strong evidence of McLendon’s guilt, cou-
pled with the judge’s curative instructions, we conclude that
the impact of the investigator’s brief reference to ammunition
was, if anything, de minimis. McLendon resists this conclu-
sion, contending that the testimony regarding ammunition
was the only evidence that differed between the second and
third trials,10 and that it therefore must be regarded as
having been the decisive factor. But as we have cautioned in
the past, the fact that a case previously ended in a mistrial is
not sufficient to establish that the case was close. See United
States v. Williams, 212 F.3d 1305, 1311 n.10 (D.C. Cir. 2000);
United States v. Bowie, 142 F.3d 1301, 1307-08 (D.C. Cir.
1998).
In sum, even if we were to regard the investigator’s
mention of ammunition as unfairly prejudicial, the extent of
that prejudice was insignificant in light of the court’s curative
instructions and the weight of the admissible evidence.
9 See United States v. Neville, 82 F.3d 1101, 1107 (D.C. Cir. 1996)
(holding that the ‘‘alacrity and active interest with which [the
defendant] embraced the plan to smuggle drugs’’ would justify a
jury in finding him ‘‘predisposed to commit the crime’’); Walls, 70
F.3d at 1329 (holding that where the ‘‘defendants showed no
hesitation in committing the crimes for which they were convicted,’’
that ‘‘[a]lone TTT is enough to destroy their entrapment argument’’).
10 Although it is true that the investigator did not refer to the
ammunition during the second trial, several witnesses at that trial
did refer to McLendon’s connection to guns. See 7/13/99 Tr. at 13
(Detective White); 7/14/99 Tr. at 21-22 (Gloria Pearson); 7/19/99 Tr.
at 66 (defendant McLendon).
11
III
For the foregoing reasons, we conclude that the district
court did not abuse its discretion in denying McLendon’s
motion for a mistrial. Accordingly, the judgment of the
district court is
Affirmed.