United States Court of Appeals, District of Columbia Circuit
April 2, 2018
from the United States District Court for the District of
Columbia (No. 1:11-cr-00242-1)
B. Wright, Assistant Federal Public Defender, argued the
cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam Jr., Assistant Federal
Public Defender, entered an appearance.
P. Saybolt, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Assistant U.S. Attorney.
Before: Garland, Chief Judge, and Edwards and Silberman,
Senior Circuit Judges.
Silberman, Senior Circuit Judge
a quite unusual criminal case. Appellant Aumbrey Winstead
challenges his conviction for possession of a firearm (by a
person convicted of a crime punishable by imprisonment of
more than one year), possession with intent to distribute
cocaine, and possession of a firearm during a drug
trafficking offense. His primary evidentiary claim relates to
the admission of evidence of prior crimes, which he asserts
were stale. Although we think he has a point, it doesn't
matter because the evidence of guilt was overwhelming.
However, he also asserts that he received ineffective
assistance of counsel, both at trial and at sentencing. Per
our normal practice, we remand to the district judge the
issue of ineffective assistance at trial, but we conclude -
as a matter of law - that Appellant received ineffective
assistance at sentencing, and that his sentence as a career
criminal was improper. We therefore remand for new
catalyst for the events leading to Winstead's arrest was
a car accident. On May 15, 2011, Shervonne Murphy stopped her
car at a red light as she returned home from church with her
daughter and her boyfriend. Winstead was riding in another
vehicle - driven by a man named George - when it plowed into
Murphy's car while she was stopped at the intersection.
George quickly offered Murphy $20, 000 and attempted to
prevent her from calling the police, but she called 9-1-1.
Fearing for her safety after observing what she believed to
be a gun under Winstead's shirt, and judging from his
behavior that he was "totally wasted, " she called
9-1-1 a second time and asked the police to hurry. Before the
police arrived, Murphy and her boyfriend saw Winstead walk
across the street and up a hill into the woods, where he
briefly disappeared from their sight. When he returned
shortly thereafter, the bulge under his shirt was gone.
the police arrived and decided that Winstead and George were
"acting very squirrelly, " the two were handcuffed
and seated next to each other on the curb. One officer
conducted a protective pat-down to search for weapons, and
testified that he felt a bulge and a wad of money in
Winstead's cargo pocket, but he didn't remove them.
He noticed Winstead nudge George with his leg and then nod to
the wooded area where he had previously disappeared.
Suspicious of the situation, the officer hid behind a nearby
telephone box and waited for his fellow officers and the two
cars from the accident to clear the scene. Sure enough, soon
after the other policemen left, George's car returned,
and the officer observed Winstead jogging back toward the
wooded area. The officer followed him and hid in "a
shadowy spot, " where he watched Winstead pace back and
forth "a couple of times as if he were looking for
something" and then proceed to bend over and
"pick up a shiny object, " which the officer
believed to be a handgun. Winstead then received a call on
his cell phone and immediately dropped the shiny object, lit
a cigarette, and began to walk out of the woods.
point, the hidden officer called for support from his two
colleagues, who returned in their squad cars and arrested
Winstead. He then walked from his hiding place to the
location where he had observed Winstead pick up and drop the
shiny object, and found two firearms. When Winstead was
searched incident to his arrest, police found money and 25
ziplock bags of cocaine packaged inside a larger ziplock bag
marked with an apple emblem within his cargo pocket.
was taken to jail. During his stay, several recorded phone
calls were logged under his unique telephone identification
number. The caller - who identified himself as
"Brey" and whose voice was identified as
Winstead's by a witness when the recording was played at
trial - placed one call to a woman Winstead had been seeing,
Ms. Genai Johnson. He complained that George should not claim
that the caller owed him anything: "You shouldn't
have crashed the m-f-in' car while we got s- in the car,
man. I hid the m-f-in' hammers for you,
chose to testify. He asserted that he went into the woods
after the car accident in order to relieve himself, and that
as he walked back to the car, George "grabbed something
out of the back of the trunk that was wrapped up, and then
George went into the woods." Winstead claimed that after
departing the scene following the initial police interaction,
he realized that he had forgotten his cell phone, and
returned to the area where he had relieved himself to
retrieve it. Winstead testified that no drugs were found on
his person during the search incident to his arrest. When the
recording of the discussion of hiding the "hammers"
was re-played during Winstead's cross examination, he
denied that the caller's voice was his.
also testified that he commonly stayed at Ms. Johnson's
apartment, located at 1333 Savannah Street in Southeast
Washington. As it happened, the police executed a search
warrant at that apartment four days prior to the car
accident. Although Winstead had denied that it had been Ms.
Johnson's voice on the prison phone call, he admitted
that he was present in her apartment during the search and
that he recognized some of the items found there. He denied
ownership, however, of other items the police found in the
apartment: a 9mm pistol, two ounces of PCP, vials used for
PCP distribution, and small ziplock bags and apple bags
similar to those allegedly found in his pocket on the night
of the car accident. When another jail phone call was played,
which he admitted was his voice, he was heard lamenting that
"they ran into Shorty's house and took all of my
s-." He denied, however, that Ms. Johnson was the
"Shorty" in question, noting that he had
"other female friends, " but declining to say who
was on the phone. Nor did Winstead explain which seizure his
statement referred to, if not the Savannah Street search.
prosecution introduced evidence of Winstead's prior
crimes for impeachment and to prove knowledge and intent with
respect to his charges. He admitted to three previous
convictions. In 1998, he was convicted of attempted
possession with intent to distribute 23 ziplock bags of
cocaine. In 2002, he sold marijuana in a ziplock bag to an
undercover officer, resulting in a conviction for
attempted distribution. And in 2004, he was caught
with a 9mm pistol during a traffic stop and was convicted of
unlawful possession of a firearm by a person previously
convicted of a crime punishable by imprisonment for a term
exceeding one year, or "felon in possession."
Besides Winstead's admissions, the prosecution offered
the testimony of the policeman who discovered the pistol, as
well as court documents from the three cases.
jury found Winstead guilty of three crimes: unlawful
possession of a firearm by a person convicted of a crime
punishable by imprisonment for a term exceeding one year,
possession with intent to distribute
cocaine,  and possession of a firearm during a drug
primary complaint concerning the judge's trial rulings
focused on the admission of his prior crimes. Particularly in
light of our deferential standard of review of a district
judge's decision to admit such evidence under Federal
Rules 403 and 404(b) (abuse of discretion), two of his claims
are insubstantial. Winstead complains that the district judge
- who did give a limiting instruction to the jury with
respect to the prior crimes evidence - should have given it
more than once. But we have never so held. See United
States v. McCarson, 527 F.3d 170, 174 (D.C. Cir.
2008). He also contends his prior gun conviction was
irrelevant to his drug crime. But the government's drug
expert testified that the distribution of drugs is a risky
business - there are groups in the city who prey upon and rob
drug dealers. Drug dealers thus typically carry pistols such
as Winstead was convicted of possessing in 2004. In other
words, a pistol is a tool of the trade, and its possession is
therefore probative of knowledge and intent. See United
States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002).
troubling, however, is Appellant's contention that under
our precedent, his past crimes are stale and, therefore, no
longer relevant. In that regard, we recently held that a
ten-year-old PCP conviction was too old to be used to
establish knowledge for a similar crime. United States v.
Sheffield, 832 F.3d 296, 307-08 (D.C. Cir. 2016). The
government would distinguish Sheffield. It first
points out that in Sheffield only the fact of the
prior crime was introduced, reducing its probative value
relative to its prejudicial effect. In this case, however,
the government introduced extensive evidence drawing a
parallel with Winstead's later behavior. The 1998
conviction involved ziplock bags of cocaine, which Winstead
had confessed he intended to distribute, and the pistol used
in 2002 was of the same caliber - 9 mm - as the larger
firearm used in the instant case. We suppose there may be
something to this distinction, but we are not sure which way
it cuts. It is not clear to us that the greater detail does
not come with greater prejudice as well.
government's primary ground offered to distinguish
Sheffield - drawing upon a notion several courts
have accepted, see United States v. Cherry, 433 F.3d
698, 702 & n.4 (10th Cir. 2005); United States v.
Brooks, 736 F.3d 921, 940 (10th Cir. 2013); United
States v. Sterling, 738 F.3d 228, 238-39 (11th Cir.
2013); United States v. Halk, 634 F.3d 482, 487-88
(8th Cir. 2011) - is that the staleness of old crimes is
lessened if part of the time between the defendant's old
crime and a new case was spent in prison. Although our sister
circuits do not explain their reasoning, we think that they
are assuming that conversations in prison would refresh a
prisoner's knowledge of the modus operandi of drug
crimes. We are not sure that is a legitimate
assumption in every case.
as it may, we have no need to decide this question today.
Regardless of whether the prior convictions were too stale
for admission - such that their probative value was
substantially outweighed by their prejudicial effect under
Rule 403 - overwhelming evidence of Winstead's guilt was
presented in this case. Jurors heard testimony from two
civilian witnesses who observed a bulge under Winstead's
clothes that was gone when he returned from the woods. They
heard testimony from a policeman who followed Winstead when
he went back into the woods to retrieve the guns, and found
them there. They heard testimony from other officers who
found the baggies on his person after arresting him, and saw
the test results confirming that the baggies contained
cocaine. They heard the recordings of Winstead's jail
phone calls in which he admitted that he hid the
"hammers" for George and discussed the Savannah
Street search. They examined properly admitted evidence from
that search, including a firearm, clothing that he admitted
to recognizing, suspected PCP, and plastic packaging baggies
that were almost identical to the ones found on his person
only four days ...