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United States v. Winstead

United States Court of Appeals, District of Columbia Circuit

May 25, 2018

United States of America, Appellee
Aumbrey Winstead, also known as Andre Winstead, Appellant

          Argued April 2, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:11-cr-00242-1)

          Lisa 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.

          David 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

         This is 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 sentencing.

         I. The Trial


         The 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.

         When 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.

         At this 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.

         Winstead 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, n-."[1]

         Winstead 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.

         Winstead 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.

         The 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.

         The 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, [2]possession with intent to distribute cocaine, [3] and possession of a firearm during a drug trafficking offense.[4]


         Appellant's 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.[5] 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).

         More 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.

         The 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.[6] We are not sure that is a legitimate assumption in every case.

         Be that 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 ...

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