United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2008 Decided March 6, 2009

No. 05-3201

UNITED STATES OF AMERICA,

APPELLEE

v.

JAMES T. FOSTER,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00395-02)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for the appellant. A. J. Kramer, Federal Public

Defender, was on brief. Neil H. Jaffee, Assistant Federal Public

Defender, entered an appearance.

Christopher R. Kavanaugh, Assistant United States

Attorney, argued the cause for the appellee. Jeffrey A. Taylor,

United States Attorney, and Roy W. McLeese III, Elizabeth

Trosman, and Patricia Stewart, Assistant United States

Attorneys, were on brief.

Before: GINSBURG and HENDERSON, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge HENDERSON.
2

1

At trial Foster’s mother testified that Foster and Waldrop were

married and living together during the first part of 2002. Foster’s

mother testified that Foster came to live with her in approximately

June 2002.

2

21 U.S.C. § 841(a)(1) makes it “unlawful for any person

knowingly or intentionally . . . to manufacture, distribute, or dispense,

or possess with intent to manufacture, distribute, or dispense, a

controlled substance.” 21 U.S.C. § 841(b)(1)(C) provides that “[i]n

the case of a [schedule I or II controlled substance], . . . [a] person

[violating § 841(a)] shall be sentenced to a term of imprisonment of

not more than 20 years.”

KAREN LECRAFT HENDERSON,Circuit Judge: James Foster

was convicted of one count of unlawful distribution of cocaine

and one count of possessing with intent to distribute (PWID) 50

grams or more of cocaine base. The district court sentenced

Foster to 12 years’ incarceration on each count to run

concurrently. Foster appeals the judgment, arguing that the

district court erred in denying his motion for a mistrial on the

distribution count based on a government witness’s surprise

testimony at trial. He also challenges the sufficiency of the

evidence to support his conviction on the PWID count. For the

following reasons, we affirm the judgment of conviction.

I.

On August 21, 2002, the appellant, James Foster, and Debra

Waldrop, his wife at the time,1

 were arrested. On September 19,

2002, a federal grand jury returned an indictment charging

Foster and Waldrop with two counts of distribution of cocaine

base, once on June 27, 2002, and the second time on August 12,

2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).2

The indictment also charged Foster and Waldrop with one count

of PWID 50 grams or more of cocaine base on August 21, 2002,
3

3

21 U.S.C. § 841(b)(1)(A)(iii) provides that in the case of a

violation of § 841(a) involving “50 grams or more of a mixture or

substance . . . which contains cocaine base,” the person “shall be

sentenced to a term of imprisonment which may not be less than 10

years or more than life.”

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).3

Both were also charged with aiding and abetting on each count

under 18 U.S.C. § 2. Waldrop was charged with an additional

count of distributing cocaine base on August 15, 2002. She

pleaded guilty to all four counts and was sentenced to 70

months’ imprisonment on three counts and 120 months’

imprisonment on one count to run concurrently. Foster pleaded

not guilty to all counts.

Foster’s jury trial commenced on November 10, 2003. The

government’s primary witness was Detective Lavinia Quigley,

an undercover narcotics officer with the District of Columbia

(District) Metropolitan Police Department (MPD). Sometime

before June 27, 2002, Quigley received information from a

“special employee” that drugs were being sold at an apartment

in the District. On June 27, 2002, Quigley went to the apartment

and knocked on the window. A black male opened the door and

Quigley entered. Waldrop was sitting on a couch in the

apartment. Quigley asked for $60 worth of cocaine base. The

male removed a plastic bag containing cocaine base from a

bottle and placed the bag on the table. Waldrop opened a black

pouch, took out a plastic bag containing cocaine base and broke

off a piece. The male gave Quigley a lottery ticket in which to

wrap the piece of cocaine base. Quigley gave Waldrop $60 and

left the apartment. Quigley was in the apartment approximately

five minutes. She sat a few feet from the man and Waldrop and

testified that the lighting was like that in the courtroom. In

court, Quigley identified Foster as the male at the apartment on

June 27, 2002.
4

Quigley returned to the apartment on August 12, 2002 and

purchased more cocaine base from Waldrop. Quigley observed

Foster sleeping on a bed in the living room during the

transaction. At the close of the government’s case, the court

granted Foster’s motion for judgment of acquittal as to the

second count (the August 12th transaction) based on insufficient

evidence tying Foster to the sale. Quigley also purchased

cocaine base from Waldrop on August 15, 2002, but Foster was

not in the apartment at the time and was not charged. Following

the August 15th transaction, Quigley obtained a search warrant.

Quigley returned to the apartment the final time on August

21, 2002. Foster opened the door and let Quigley in. Foster sat

next to Waldrop on one couch and Quigley sat on another couch.

Quigley told Waldrop she wanted to purchase three “eight balls”

of cocaine base. Trial Tr. at 43, United States v. Foster, Cr. No.

02-395 (D.D.C. Nov. 12, 2003) (Tr. 11/12/03am). Waldrop

went into a back room in the apartment and came back with a

blue pouch containing several plastic bags. Before Quigley

could complete the transaction, a black female knocked at the

front door. Foster answered the door and the woman told him

she wanted to make a buy. Quigley testified that “Mr. Waldrop

[sic] went next to Ms. Foster [sic], picked up a ziploc off the

table and handed it to the black female.” Id. at 44. On crossexamination, Quigley testified that “Ms. Waldrop had already

given [the woman] the zip” before Waldrop and the woman

discussed the payment. Id. at 84. Quigley then testified that

“Mr. Foster gave the black female the ziploc containing crack

cocaine.” Id. Quigley clarified that “Mr. Foster handed [the

black female] the drugs and [Waldrop] took the money.” Id. at

86. On redirect, the prosecutor asked Quigley “who actually

handed the female who came into the apartment the small packet

of drugs she asked for?” Id. at 92. Quigley replied, “Ms.

Waldrop, I mean Mr. Foster.” Id. The woman and Waldrop

were discussing the price when MPD officers knocked on the

door and entered the apartment to execute the search warrant.
5

Waldrop ran to the bathroom with the blue pouch to flush the

drugs but Quigley convinced her to place the blue pouch in the

toilet tank.

The MPD officers arrested Foster and Waldrop. They

seized a blue pouch containing 50 grams of cocaine base from

the toilet tank; four ziploc bags containing 0.82 grams of

cocaine base from a tray in the living room; ten ziploc bags

containing 2 grams of cocaine base from a container on the

television; a plate on a shelf underneath the television containing

0.50 grams of cocaine base residue, a razor blade and empty

ziplocs; and a bag containing 0.19 grams of cocaine base in

plain view on an end table. The officers also found a District

Department of Human Services identification card belonging to

Foster, a marriage license attesting to the marriage of Waldrop

and Foster in a dresser drawer in the bedroom and male clothing

in the bedroom.

During cross-examination, defense counsel questioned

Quigley regarding the black male present at the June 27, 2002

transaction.

Q: Okay, now this black male was somebody you

didn’t know from the past or well let me just say this

black male was somebody that you didn’t know

correct?

A: I knew him from the previous buy, from a previous

buy, yes.

Q: June 27th was your first buy in this investigation,

is that correct?

A: Okay, it wasn’t – I met Mr. Foster.

Q: Can we –

A: Can I say –
6

Mr. Sussman [defense counsel]: Can we stop for

a second and approach?

The Court: Yes, just one moment.

(Bench conference.)

Mr. Sussman: I have no idea where she’d [sic]

going, but it sounds like there was a previous

relationship which was never disclosed.

The Court: I think there’s a question of dates

actually.

Ms. Lerner [prosecutor]: Well, I think it’s partly

she was introduced to a special employee.

Mr. Sussman: Did she actually meet them?

Ms. Lerner: I believe so. I found that out this

afternoon, I mean this morning. I can’t speak with Mr.

Foster I didn’t ask for details because I didn’t think

that I would go into that. I’m sorry Your Honor, I

didn’t think that was relevant and I was not going to go

into that. I wasn’t planning on it.

Tr. 11/12/03am at 56-57. Defense counsel then continued the

cross-examination without questioning Quigley further

regarding the previous drug transaction and the prosecutor did

not raise the matter on redirect. Following the lunch break,

defense counsel requested a mistrial because of Quigley’s

surprise testimony. He claimed Quigley’s testimony weakened

Foster’s mistaken identification defense. The government stated

that it had no intention of using Quigley’s testimony regarding

the prior drug transaction. The court denied Foster’s motion for

a mistrial and gave the following curative instruction as

specifically requested by the defense:

We kept you [the jury] waiting a little bit because we

were having a discussion about what we thought was
7

some confusion in the testimony of Detective Quigley,

and so I just after our discussion wanted to give you an

instruction from the Court, and that is that the first

event in this investigation and the first event on which

you are to concern yourself occurred on June 27 of

2002. And if it appeared that there was any testimony

about anything prior to that date, it’s totally irrelevant

and should be disregarded by the jury.

Trial Tr. at 13-14, United States v. Foster, Cr. No. 02-395

(D.D.C. Nov. 12, 2003) (Tr. 11/12/03pm). Foster presented two

alibi witnesses who testified that he was with them at the time

of the alleged drug transaction on June 27, 2002. Before jury

deliberations, Foster moved for a judgment of acquittal on the

two remaining counts (June 27 and August 21), which motion

the court denied.

The jury returned a guilty verdict against Foster on count

one, distribution of cocaine base on June 27, 2002, and count

four, PWID 50 grams or more of cocaine base on August 21,

2002. Foster moved for a new trial on count one based on

Quigley’s surprise testimony, which motion the district court

denied. Foster was sentenced to 144 months’ imprisonment on

each count (concurrent). Foster timely appealed.

II.

We review the district court’s evidentiary rulings and denial

of the mistrial motion for abuse of discretion. United States v.

Watson, 409 F.3d 458, 462 (D.C. Cir. 2005) (evidentiary

rulings); United States v. McLendon, 378 F.3d 1109, 1112 (D.C.

Cir. 2004) (denial of mistrial). We review the sufficiency of the

evidence to determine whether “‘any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. Dykes, 406 F.3d 717, 721

(D.C. Cir. 2005) (quoting United States v. Arrington, 309 F.3d

40, 48 (D.C. Cir. 2002)). “In making this determination, ‘the
8

prosecution’s evidence is to be viewed in the light most

favorable to the government, drawing no distinction between

direct and circumstantial evidence, and giving full play to the

right of the jury to determine credibility, weigh the evidence and

draw justifiable inferences of fact.’” Id. (quoting United States

v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)). 

A.

Foster first contends that the district court erred in not

declaring a mistrial after Quigley unexpectedly testified that she

had met Foster during a drug buy before June 27, 2002. “‘A

mistrial is a severe remedy—a step to be avoided whenever

possible, and one to be taken only in circumstances manifesting

a necessity therefor.’” McLendon, 378 F.3d at 1112 (quoting

United States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994)).

The “most important consideration in ruling on a motion for a

mistrial is the extent to which the defendant was unfairly

prejudiced.” Id. In determining whether the defendant was

“unfairly prejudiced,” we consider “the force of the unfairly

prejudicial evidence, whether that force was mitigated by

curative instructions, and the weight of the admissible evidence

that supports the verdict.” Id. (citing United States v. Eccleston,

961 F.2d 955, 959-60 (D.C. Cir. 1992)). Stated differently, “‘we

must determine with fair assurance that the judgment was not

substantially swayed by the error.’” United States v. Spinner,

152 F.3d 950, 961 (D.C. Cir. 1998) (quoting Clarke, 24 F.3d at

267).

Foster asserts that he was unfairly prejudiced by Quigley’s

testimony because the testimony weakened his mistaken

identification defense on the first count and he had no

opportunity to rebut the testimony because it was unexpected.

Evidence that Quigley had met Foster previously made it less

likely that she mistakenly identified him as the man at the

apartment on June 27, 2002. Foster also claims that he was

unfairly prejudiced because Quigley’s testimony suggested an
9

4

Foster characterizes Quigley’s testimony as Rule 404(b)

evidence and the government does not argue otherwise. See Fed. R.

Evid. 404(b) (prior bad acts evidence “not admissible to prove the

character of a person in order to show action in conformity therewith”

but may be admissible for other purposes “provided that upon request

by the accused, the prosecution in a criminal case shall provide

reasonable notice in advance of trial . . . of the general nature of any

such evidence it intends to introduce at trial”). Some courts question

whether Rule 404(b) excludes—or requires advance notice of—

testimony elicited by defense counsel on cross-examination regarding

prior bad acts evidence the government did not use on direct. See

United States v. Jones, 145 F.3d 959, 964 (8th Cir. 1998) (Rule 404(b)

does not bar admission of prior bad acts evidence elicited by defense

counsel on cross-examination (citing United States v. Kragness, 830

F.2d 842, 866 n.23 (8th Cir. 1987)). Because the government does not

raise the issue, we do not reach it.

improper ground for conviction. While Quigley testified only

that she “knew [Foster] from the previous buy” and not that he

had participated in the buy, Tr. 11/12/03am at 56, the testimony

created a risk that the jury would convict Foster of a crime other

than that charged, “‘or that, uncertain of guilt, it w[ould] convict

anyway because a bad person deserves punishment.’” Old Chief

v. United States, 519 U.S. 172, 181 (1997) (quoting United

States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). The

government argues that Foster suffered little, if any, prejudice

because Quigley’s testimony was “tentative, confusing, and

stopped immediately.” Appellee’s Br. 16. The prosecutor did

not question Quigley about the testimony on rebuttal or refer to

Quigley’s testimony in closing argument. Cf. Spinner, 152 F.3d

at 960-62 (admission of prior bad acts evidence without notice

not harmless in part because prosecutor referred to evidence in

closing argument). Because the government does not contest

that any prejudice resulting from the testimony would be unfair

prejudice, Appellee’s Br. 16-23, we assume without deciding

that any prejudice was unfair.4
10

Any unfair prejudice resulting from Quigley’s testimony,

however, was effectively countered by the court’s curative

instruction. “We normally presume that a jury will follow an

instruction to disregard inadmissible evidence inadvertently

presented to it, unless there is an overwhelming probability that

the jury will be unable to follow the court’s instructions and a

strong likelihood that the effect of the evidence would be

devastating to the defendant.” Greer v. Miller, 483 U.S. 756,

767 n.8 (1987), cited in McLendon, 378 F.3d at 1114 n.6. In

McLendon, the defendant was charged with distributing cocaine

base. 378 F.3d at 1110. The government presented testimony

regarding ammunition found in the defendant’s home. Id. at

1111. The district court instructed the jury to “disregard” the

evidence regarding the ammunition. Id. The court later clarified

to the jury that the defendant was not charged with possession

of any ammunition and instructed it again to “disregard the

question and disregard the answer.” Id. at 1112. On appeal, we

found that “[g]iven the brevity of the offending testimony and

the clarity of the district court’s instructions, we have no reason

to doubt the validity of that presumption in this case.” Id. at

1114. Similarly, Quigley’s testimony was brief and the district

court clearly instructed the jury to disregard any evidence about

any events before June 27, 2002. The court gave the curative

instruction promptly and did not repeat Quigley’s testimony,

factors weighing in favor of our conclusion that the instruction

was effective. Cf. United States v. Slade, 627 F.2d 293, 308

(D.C. Cir. 1980) (curative instruction ineffective because given

day after inadmissible evidence presented and district court

repeated inadmissible evidence during instruction).

The weight of the admissible evidence supporting the

verdict also supports the district court’s denial of the mistrial

motion on count one. Quigley testified that on June 27, 2002,

she was in the apartment with Foster and Waldrop for a “little

under five minutes,” that she sat only a few feet from Foster and

that the lighting was like that in the courtroom. Tr. 11/12/03am
11

at 34. Quigley noted in her buy report the man’s approximate

height, age and weight and that he had brown eyes and a dark

complexion. Id. at 65-66. Her failure to detail in her buy report

more specific characteristics of the man does not mean she did

not remember him sufficiently to identify him in court. Quigley

also testified that she saw Foster again on August 12 and August

21, 2002, supporting her identification of Foster as the man

present on June 27, 2002. See United States v. Gaines, 436 F.2d

150, 153 (D.C. Cir. 1970) (rejecting mistaken identification

defense because “undercover officer made a positive, in-court

identification of the appellant and further buttressed the

identification with his testimony that he had seen the appellant

a number of times both before and after the alleged sale”).

During deliberations, the jury asked to see Quigley’s buy

report for the June 27, 2002 transaction and was told that the

report was not in evidence. The jury also sent three notes to the

judge indicating that it was “at a stalemate on the first count,”

the third note indicating that the jury was “irrevocably

deadlocked.” Trial Tr. at 8-9, United States v. Foster, Cr. No.

02-395 (D.D.C. Nov. 18, 2003). After receiving a Thomas

deadlock instruction, the jury convicted Foster on both counts.

See United States v. Lloyd, 515 F.3d 1297, 1301 (D.C. Cir.

2008) (citing United States v. Thomas, 449 F.2d 1177 (D.C. Cir.

1971) (en banc)). Foster argues that the jury’s request and notes

indicate that the evidence that Foster was the man present at the

June 27th transaction was weak. Nevertheless, the other

evidence supporting the guilty verdict on count one is sufficient

to uphold it. Cf. McLendon, 378 F.3d at 1115 (denying mistrial

motion “[i]n light of th[e] strong evidence of [defendant’s] guilt,

coupled with the judge’s curative instructions”).

In sum, Foster was not unfairly prejudiced by Quigley’s

challenged testimony because the strength of the testimony was

weak due to its fleeting and ambiguous nature, any prejudice

was mitigated by the curative instruction and other evidence
12

supported the verdict. Accordingly, we conclude that the district

court did not abuse its discretion in denying Foster’s motion for

a mistrial on count one.

B.

Foster challenges the sufficiency of the evidence to support

his conviction on count four—PWID 50 grams or more of

cocaine base on August 21, 2002. To convict Foster on this

count, the government was required to show Foster “knowingly

or intentionally . . . possess[ed] with intent to . . . distribute, or

dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).

Possession may be actual or constructive. United States v.

Evans, 888 F.2d 891, 895 (D.C. Cir. 1989) (citing United States

v. Raper, 676 F.2d 841, 847 (D.C. Cir. 1982)). “Constructive

possession requires that the defendant knew of, and was in a

position to exercise dominion and control over, the contraband,

‘either personally or through others.’” United States v. Byfield,

928 F.2d 1163, 1166 (D.C. Cir. 1991) (emphasis omitted)

(quoting Raper, 676 F.2d at 847). Control may be shown by

“‘some action, some word, or some conduct that links the

individual to the narcotics and indicates that he had some stake

in them, some power over them.’” Id. (quoting United States v.

Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980)). “Mere proximity

to the drugs or association with others possessing drugs will not

suffice.” Id. A jury may infer that a person constructively

possesses the items in his dwelling even if he shares the

dwelling with others. Dykes, 406 F.3d at 721; see also United

States v. Morris, 977 F.2d 617, 620 (D.C. Cir. 1992) (“A jury is

entitled to infer that a person exercises constructive possession

over items found in his home.” (citing United States v. Jenkins,

928 F.2d 1175, 1179 (D.C. Cir. 1991))).

Foster argues that there was insufficient evidence to prove

that he actually or constructively possessed 50 grams or more of

cocaine base. As noted by the government, to find possession,

the jury must have found that Foster possessed the 50 grams of
13

cocaine base in the blue pouch Waldrop placed in the toilet tank.

Foster notes that Waldrop had actual possession of the blue

pouch. He also claims that Waldrop conducted the drug

transactions with Quigley and the other woman on August 21,

2002 without his participation. Foster characterizes Quigley’s

testimony to the contrary as equivocal. Quigley’s testimony that

Foster gave cocaine base to the other woman, however, was not

equivocal. She merely corrected herself as she testified and the

jury reasonably credited her account. See Jenkins, 928 F.2d at

1178 (“Credibility determinations may rest on a witness’s

demeanor and, for that reason, are for the jury, not us.”).

Foster’s conduct “‘links [him] to the narcotics and indicates that

he had some stake in them.’” Byfield, 928 F.2d at 1166 (quoting

Pardo, 636 F.2d at 549).

In addition to Foster’s conduct on August 21, 2002, the fact

that drugs and drug paraphernalia were in plain sight supports an

inference that he constructively possessed the drugs. See Dykes,

406 F.3d at 721 (jury could infer that defendant constructively

possessed drugs found in his bedroom); Jenkins, 928 F.2d at

1179 (jury could infer defendant constructively possessed drugs

found in her home in part because some drugs and drug

paraphernalia were in plain sight). Moreover, the evidence

supported a finding that Foster lived in the apartment. Foster

was married to Waldrop, he was in the apartment on two

occasions before August 21, 2002 and his identification card,

marriage certificate and articles of male clothing were found in

the apartment. Accordingly, we conclude that the district court

did not abuse its discretion in denying Foster’s motion for a

judgment of acquittal on count four.
14

5

We note that Foster was also charged with aiding and abetting

on both counts that went to the jury and on which he was ultimately

convicted, and the evidence was sufficient to convict Foster of aiding

and abetting on both counts. See 18 U.S.C. § 2 (“Whoever commits

an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a

principal.”). 

For the foregoing reasons, we affirm the district court’s

judgment of conviction.5

So ordered.