Appeal from the United States District Court for the District of Columbia (No. 99cr00011-01)
Before: Edwards, Garland, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Garland, Circuit Judge
A jury convicted defendant Juan Petis McLendon of several narcotics offenses. At trial, although 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.
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 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. Unfortunately for McLendon, Pearson was working as a confidential informant for the United States Park Police. Pearson reported McLendon's request to the police, who recorded a telephone 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 Washington, 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 communicating 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.
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 husband to think the drugs were coming from McLendon, because 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, Pearson provided all of the drugs that he sold to White; McLendon 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 complained 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 bedroom. 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 ammunition." Id. *fn1
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 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 instruct you to disregard that question and disregard the answer." Id. at 179. Employing a leading question, the prosecutor then went on to elicit ...