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United States v. Mitchell

United States Court of Appeals, District of Columbia Circuit

March 8, 2016

United States of America, Appellee
v.
Sherman Mitchell, Appellant

Argued December 8, 2015

Appeals from the United States District Court for the District of Columbia (No. 1:12-cr-00258-2)

Douglas J. Behr, appointed by the court, argued the cause and filed the briefs for the appellant.

Elizabeth H. Danello, Assistant United States Attorney, argued the cause for the appellee. Vincent H. Cohen Jr., Acting United States Attorney, Elizabeth Trosman, John K. Han and Stratton C. Strand, Assistant United States Attorneys, were with her on brief.

Before: Henderson and Griffith, Circuit Judges, and Randolph, Senior Circuit Judge.

OPINION

KAREN LECRAFT HENDERSON, CIRCUIT JUDGE

Sherman Mitchell (Mitchell) was convicted by jury of multiple counts of drug crimes resulting from his role in a phencyclidine (PCP) distribution ring. Mitchell challenges his convictions on several grounds, including, inter alia, the government's purported failure to properly authenticate and demonstrate chain of custody for PCP samples used to establish his guilt and the district court's alleged error in admitting summary witness evidence. We reject his challenges and affirm his convictions.

I. Background

A.

In February 2012, the U.S. Drug Enforcement Agency (DEA), led by Special Agent Jamey Tarrh (Tarrh), opened an investigation into drug trafficking between California and the District of Columbia focused on Mitchell and his associate, Harvey Couser (Couser). In early May 2012, Mitchell moved into an apartment at the Onyx on First (Onyx) in the District of Columbia, which was leased by Mitchell's half-brother, Stephon. Although the apartment was leased in Stephon's name, either Mitchell or Couser paid the rent on the apartment from June through November 2012 and Couser had apartment keys Stephon had given him.

Between May and August 2012, Mitchell took seven roundtrip flights to Los Angeles, remaining there for short periods each time. During every trip, one or more packages were shipped via UPS to Mitchell's apartment at the Onyx from Los Angeles, with multiple packages addressed to "Jane Mitchell"-"Jane" matching Mitchell's mother's given name. The government did not seize any of the packages but DEA agents observed Couser retrieving the packages addressed to Jane Mitchell at the Onyx several times. Specifically, on August 10, 2012, Tarrh's team identified Couser entering the Onyx and retrieving a package shipped from Los Angeles by "James Campbell"-"James" matching Mitchell's father's given name and "Campbell" matching Mitchell's mother's surname-to Jane Mitchell at the Onyx. The August 10, 2012 package was labelled with a contact number corresponding to a cell phone later seized from Couser.

B.

Mitchell eventually moved to Los Angeles in late August 2012, where he resided in various hotels until his arrest in February 2013. The shipments to the Onyx apartment from Los Angeles continued, with Couser retrieving multiple packages at the Onyx in September, October and November 2012. On November 24, two packages were shipped from Los Angeles to the Onyx apartment for delivery on November 26. The two concierges at the Onyx, who cooperated with the ongoing investigation, notified Tarrh of the delivery of the packages. Tarrh asked the concierges not to deliver the packages to Couser until he, Tarrh, gave them permission. When Couser arrived at the Onyx to retrieve them, the concierge on duty told Couser that no package addressed to Mitchell's apartment had been delivered that day. Couser returned to the concierge desk a few hours later and again requested the packages. The concierge again reported that no packages had been delivered and, at that point, Couser handed the concierge a cell phone to speak with Mitchell. Mitchell identified himself and excitedly explained the importance of the packages and asked her to contact Couser immediately when the packages arrived.

While the delivery of the packages to Couser was delayed, Tarrh obtained a warrant, picked up the two packages from the Onyx and searched them. Inside the boxes, Tarrh found a total of four 64-ounce apple juice bottles filled with amber liquid. The bottles were delivered to Metropolitan Police Department (MPD) Detective Joseph Abdalla (Abdalla), who weighed the bottles, removed samples of the amber liquid from each and prepared the bottles for controlled delivery by refilling three of the bottles with tea and the remaining bottle with a mixture of tea and a small amount of the amber liquid. Following protocol, Abdalla then sent the remaining amber liquid to the MPD property division for destruction.[1] Tarrh repacked the two boxes and returned the boxes to the Onyx for delivery. The next day, Mitchell telephoned the Onyx manager hourly about the packages until they were picked up by Couser once Tarrh had given permission to release them.

When Couser returned to the Onyx to make the pick-up, Tarrh arrested him as he left the building. Two cell phones were recovered from Couser at that time. A subsequent search of the Onyx apartment led to the seizure of a money-counting machine, starter fluid, an oral syringe, a ...


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