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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2005 Decided January 27, 2006
No. 04-3142
UNITED STATES OF AMERICA,
APPELLEE
v.
LEON BOYD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00489-01)
Mary E. Davis, appointed by the court, argued the cause
for appellant. With her on the brief was Thomas Abbenante,
appointed by the court.
Suzanne C. Nyland, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and David B. Goodhand, Assistant
U.S. Attorney. Roy W. McLeese, III, Assistant U.S. Attorney,
entered an appearance.
Before: HENDERSON, ROGERS and BROWN, Circuit
Judges.
Opinion for the court filed by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: Leon Boyd appeals his conviction
by a jury on the ground that the district court erred in admitting
into evidence information from the files of the D.C. Pretrial
Services Agency (“PSA”) regarding the negative results of his
drug test. He also seeks re-sentencing. The Government
conceded at oral argument that the drug test evidence was
admitted to show Boyd’s guilt, which D.C. Code § 23-1303(d)
prohibits, but maintains that any error was harmless because the
evidence was admissible for impeachment under Federal Rule
of Evidence 806 and because the evidence of Boyd’s guilt was
overwhelming. We need not decide if the evidence was
admissible under Rule 806 because we conclude that the error
in admitting the evidence to show guilt was harmless.
Accordingly we affirm the judgment of conviction for drug and
firearms offenses, except we remand the case to the district court
for re-sentencing in light of United States v. Booker, 125 S. Ct.
738 (2005).
I.
On November 5, 2002, Investigator Greene of the
Metropolitan Police Department (“MPD”) and other members
of a narcotics unit were driving past the 1100 block of Bellevue
Street, S.E., Washington, D.C. Greene observed two men
converse and engage in what seemed to be a drug transaction.
Boyd reached into his coat pocket and handed “small objects”
to the other man, who then handed Boyd some money. Upon
searching the two men, the officers seized from Boyd’s person
a loaded handgun and a plastic bag with 1.7 grams of cocaine
base in “small white rocks.”
Boyd was indicted on three counts: (1) unlawful possession
of a firearm and ammunition by a felon, 18 U.S.C. §§ 922(g)(1)
and 924(a)(2); (2) unlawful possession with intent to distribute
cocaine base (“crack”), 21 U.S.C. § 841(a)(1) and (b)(1)(C); and
(3) unlawful possession of a firearm during a drug trafficking
3
offense, 18 U.S.C. § 924(c)(1). The parties stipulated that at the
time of his arrest Boyd had a prior felony conviction, that the
firearm seized from him was operable, and that the firearm and
ammunition were manufactured outside of the District of
Columbia. An expert testified that the presence of 53 chunks in
the bag seized from Boyd tended to show that he was going to
distribute the drugs rather than use them himself.
Boyd’s defense was that he possessed the drugs for his
personal use. The police had recorded on MPD Form 163
Boyd’s statement at the time of his arrest that “I was just getting
ready to smoke that dog.” On cross-examination, an MPD
detective acknowledged that Boyd’s statement was consistent
with personal use. The district court then allowed the
Government, over defense objection, to call a witness from the
PSA who testified that Boyd had tested negative for cocaine on
the day after his arrest. On cross-examination the witness
acknowledged that Boyd had tested positive for opiates, which
meant that he had ingested either heroin or an opiate prescription
drug. As part of the defense case, Boyd recalled an MPD
detective who testified that, as an alternative to using a crack
pipe, crack cocaine can be consumed by sprinkling it on
marijuana or “other smoking matter.” The detective confirmed,
however, that the crack seized from Boyd had not been
pulverized into a form that would typically be used to sprinkle
on other smoking matter. On redirect, the detective
acknowledged that Boyd’s statement at the time of his arrest was
consistent with personal use of cocaine.
The jury convicted Boyd on all counts. The district court
sentenced Boyd under the Sentencing Guidelines to 180 months’
imprisonment on the distribution count, 120 months on the
firearm and ammunition count, and 60 months for possessing a
firearm during a drug trafficking offense, with the sentences to
be served consecutively.
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II.
D.C. Code § 23-1303(d) provides that information collected
by the PSA “shall not be admissible on the issue of guilt in any
judicial proceeding,” although such information may be used
“for the purposes of impeachment in any subsequent
proceeding.” Boyd argued in the district court that testimony
about the result of his drug test was not probative of whether he
used crack cocaine and was, in any event, an impermissible use
of PSA information. On appeal he renews his objection,
contending that the district court erred in admitting the evidence
because, contrary to the statute, the drug test was used to prove
that he did not possess crack for his personal use but rather in
order to distribute it. Indeed, during closing argument the
prosecutor pointed to the drug test evidence as undermining
Boyd’s defense that the crack that the police seized from him
was for his personal use.
The Government conceded during oral argument that it had
sought to admit the drug test evidence to prove Boyd’s guilt, but
maintains that any error was harmless because the drug test was
admissible for impeachment purposes under Federal Rule of
Evidence 806 and because there was overwhelming evidence
that Boyd intended to distribute the drugs. Although it is not
self-evident from the plain text of D.C. Code § 23-1303(d) that
PSA information is admissible as impeachment evidence at a
defendant’s trial, the District of Columbia Court of Appeals has
construed congressional intent to allow it, see Herbert v. United
States, 340 A.2d 802, 804-05 (D.C. 1975), and Boyd does not
challenge the admissibility of the drug test information on that
ground. We need not decide, however, whether the drug test
evidence was admissible for impeachment under Rule 806.
Upon review of an error for harmlessness, the court will
reverse the judgment of conviction only if the error was
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“prejudicial” in that it affected the defendant’s “substantial
rights.” FED. R. CRIM. P. 52(a); United States v. Coumaris, 399
F.3d 343, 347 (D.C. Cir. 2005). Because the other evidence of
Boyd’s guilt was overwhelming, the erroneous admission of the
PSA drug test evidence did not affect his “substantial rights.”
Although that evidence weakened Boyd’s defense of personal
use, it had no outcome-determinative bearing on the question
whether Boyd possessed the drugs for his personal use rather
than for purposes of distribution.
In addition to the parties’ stipulations, the evidence showed
that the officers had observed Boyd in what appeared to be a
hand-to-hand drug transaction and that at the time he was in
possession of a loaded firearm, crack cocaine worth $530 that
was packaged in a manner consistent with how crack is carried
by dealers selling it on the street, and $117 in small-
denomination bills. Expert testimony explained why a personal
user would not buy such a large quantity of crack cocaine at one
time. An MPD narcotics detective, who had been detailed for
years to the Drug Enforcement Administration as an intelligence
analyst and who, without objection, was qualified as a narcotics
expert, testified that the bag seized from Boyd contained 53
“chunks” of cocaine, far more than a cocaine user would carry
around at once. According to the expert witness:
[Crack cocaine users] have a basic formula of how they
are going to use crack cocaine. They basically wake[]
up. They figure out a way to get $10. They will go
b[u]y a $10 rock or piece of crack cocaine, take it,
smoke it, get high and unhigh, and depending upon
their habit, they may do it several times a day. . . .
There are reasons why these individuals don’t go buy
large quantities or 53 rocks for their personal use.
These reasons are widely known and they range from
the fact that there is crack cocaine of a very low quality
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that is on the street. They don’t want to go and invest
any large amount of money and find out they
purchased crack of a very low quality because they will
be stuck with it.
The officers found no device to smoke the drugs on Boyd at the
time of his arrest and no drug paraphernalia in his apartment.
Boyd’s defense that he could have consumed the crack by
crushing and smoking it was undermined by the evidence as to
the non-pulverized condition of the 53 rocks in his possession
and Boyd’s contemporaneous statement that he was “getting
ready” to smoke it. An MPD detective explained why Boyd’s
statement that he “was just getting ready to smoke that dog” was
self-serving and should not be taken at face value: such a claim
was “typically a statement than an individual with some
experience would say to the police hoping they wouldn’t get
charged with distribution but merely possession.”
Accordingly, because the evidence of Boyd’s guilt was
overwhelming, we affirm the judgment of conviction, except we
vacate Boyd’s sentence and remand the case for re-sentencing.
The Government advised by letter of November 30, 2005, that
it agrees with Boyd that his case should be remanded for re-
sentencing in light of Booker, 125 S. Ct. 738. Boyd preserved
his challenge to the Sentencing Guidelines in his memorandum
in aid of sentencing, which raised objections under Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey,
530 U.S. 466 (2000). The Government therefore acknowledges
that the limited remand procedure for plain error review under
United States v. Coles, 403 F.3d 764, 771 (D.C. Cir. 2005), does
not apply. See Coumaris, 399 F.3d at 351.