United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2009 Decided July 20, 2010

No. 08-3060

UNITED STATES OF AMERICA,

APPELLEE

v.

MICHAEL ANTHONY BATTLE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cr-00234-RMU-1)

Edward C. Sussman, appointed by the court, argued the

cause and filed the brief for appellant.

Anne Y. Park, Assistant U.S. Attorney, argued the cause for

appellee. With her on the brief were Jeffrey A. Taylor, U.S.

Attorney at the time the brief was filed, and Roy W. McLeese III,

Assistant U.S. Attorney.

Before: GARLAND, Circuit Judge, and WILLIAMS and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.
2

GARLAND, Circuit Judge: Michael Anthony Battle raises

three challenges to his convictions for distributing crack

cocaine. He contends that the district court erred in finding him

competent to stand trial, that there was insufficient evidence to

support the jury’s verdict that the drugs he sold were crack, and

that there was insufficient evidence that the sale took place

within 1000 feet of a school. We reject all three contentions. 

We agree with both parties, however, that Battle’s convictions

on separate counts of distributing crack cocaine and of

distributing the same drugs within 1000 feet of a school merge. 

We therefore remand for the district court to vacate the

judgment on the former count.

I 

On June 16, 2005, a grand jury returned a seven-count

indictment charging Battle with, inter alia, distributing 50 grams

or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(A)(iii), and distributing 50 grams or more of cocaine

base within 1000 feet of a school, in violation of 21 U.S.C.

§ 860(a).1

 At a status hearing on March 24, 2006, Battle’s

attorney requested a preliminary competency screening. After

interviewing Battle, Dr. Robert Benedetti, Chief of Forensic

Legal Services at St. Elizabeth’s Hospital, concluded that Battle

was “competent to stand trial because mental health factors do

not substantially impair his capacity to have a factual and

rational understanding of the proceedings against him and to

properly assist counsel with the preparation of his defense.” 

Competency Report of Dr. Robert Benedetti at 2-3 (Mar. 27,

2006). 

1

The government subsequently dismissed three of the counts,

which charged him with unlawful use of a telephone to facilitate his

distribution of narcotics, in violation of 21 U.S.C. § 843(b).
3

Defense counsel then requested a 30-day psychological

evaluation, which the court ordered pursuant to 18 U.S.C.

§ 4241. Battle was admitted to the Federal Medical Center

(FMC) in Devens, Massachusetts, where he was evaluated from

May 9 to June 8, 2006. During that period, forensic

psychologist Dr. Shawn Channell and FMC personnel working

with him conducted behavioral observations, clinical interviews,

physical examinations, and psychological testing of the

defendant. Dr. Channell administered a psychological test

called the Minnesota Multiphasic Personality Inventory: Second

Edition (MMPI-2), as well as another called the Evaluation of

Competency to Stand Trial: Revised (ECST-R), which assesses

a defendant’s understanding of proceedings and ability to work

with counsel. He also determined that Battle did not have a

documented history of mental illness.

At the conclusion of the month-long evaluation -- and

following interviews with defense counsel, the prosecutor, and

Battle’s mother -- Dr. Channell diagnosed Battle with Adult

Antisocial Behavior and alcohol and cannabis abuse. Like Dr.

Benedetti, however, he concluded that Battle was competent to

stand trial because “there is no present objective evidence to

indicate [that Battle] suffers from a mental disorder which

would impair his ability to understand the nature and

consequences of the court proceedings against him, or impair his

ability to properly assist counsel in his defense.” Competency

Report of Dr. Shawn Channell at 8 (June 28, 2006).

Following Battle’s evaluation at FMC, defense counsel

retained Dr. Lanning Moldauer, a clinical psychologist, to

conduct an independent psychological evaluation. Dr. Moldauer

interviewed Battle once, spoke by telephone with his mother for

thirty minutes, and observed a meeting between Battle and his

attorney. Thereafter, Moldauer concluded that Battle was not

competent to stand trial because he “experiences significant
4

grandiose delusions with a strong religious basis” that are

“almost certainly psychotic in nature, and . . . preclude[] his

working with his attorney effectively.” Report of Dr. Lanning

Moldauer at 3-4 (Nov. 21, 2006). 

The defense then requested a competency hearing pursuant

to 18 U.S.C. § 4247(d), and the court granted the request. In

light of Dr. Moldauer’s conclusion, the court granted the

government’s motion for re-evaluation of the defendant. During

the second observation period, which took place at FMC Devens

from February 7 to March 9, 2007, Dr. Channell conducted

additional psychological tests, including a second MMPI-2. At

the end of the period, Dr. Channell issued another report, again

finding Battle competent. Although “Mr. Battle’s personality

characteristics have, and are likely to continue, to result in

significant difficulty working with any attorney,” Channell said,

his behavior was “volitional” and did “not meet diagnostic

criteria for Delusional Disorder.” Report of Dr. Channell at 4,

9 (Mar. 21, 2007). After Dr. Channell issued his report, Dr.

Moldauer interviewed Battle for a second time. 

The district court held competency hearings on June 12 and

September 6, 2007. Consistent with their reports, Dr. Channell

and Dr. Benedetti testified that Battle was competent to stand

trial. Dr. Moldauer testified that he was not. Thereafter, the

district court found that the government had proved “by a

preponderance of the evidence that the defendant presently

possesses competence and . . . has the capacity to stand trial.” 

United States v. Battle, No. 05-0234, Mem. Op. at 9, 11-12

(D.D.C. Sept. 20, 2007).

Trial commenced on April 8, 2008. Metropolitan Police

Department Officer Darrick Wallace testified that, acting in an

undercover capacity, he had called Battle on March 24, 2005,

and arranged to “purchas[e] 62 grams of crack cocaine.” Trial
5

Tr. 41-42 (Apr. 8, 2008). The two met inside Wallace’s

undercover automobile, which he parked in an alley near the 100

block of Hamilton Street, N.W. Inside the car -- and captured

on video surveillance -- Battle sold the drugs to Wallace.

Three witnesses testified concerning the nature of the

narcotics that Battle sold to Officer Wallace. Wallace described

the drugs he purchased as “a chunky substance.” Id. at 43. 

Detective Eric Fenton, the lead officer on the case and the

person to whom Wallace handed the drugs after the purchase,

testified that they “were two large, . . . chunky, white rock

substances.” Id. at 119. And a Drug Enforcement

Administration (DEA) chemist testified that the drugs were an

“off white, chunky material,” weighing 60.3 grams and

containing cocaine base with a purity of 74 percent. Trial Tr.

26-27 (Apr. 9, 2008). In addition, the parties agreed on the

following stipulation:

There are two types of cocaine used in the District

of Columbia: Powder and cocaine base, also known as

crack. Crack comes in a hard, rock-like form. Crack

is typically ingested into the body by smoking it. 

Wholesale amounts of crack are broken down into

smaller and smaller amounts until the drug is typically

packaged into one or two useable amounts for street

sale. 

 . . . .

A “62” is approximately 62 grams of crack. This

is a standard amount for a mid-level or wholesale

dealer, . . . although the actual weight of a “62” may be

slightly more or less than 62 grams.

Id. at 47. 
6

 Detective Fenton also testified concerning the distance

between the drug transaction and a local elementary school. He

recounted that, in late April 2005, he had returned to the scene

of the March 24 transaction to measure the distance from the

location of Battle’s drug sale to Cuno Rudolph Elementary

School. Using a measuring wheel, Fenton measured 950 feet

from the place where Officer Wallace had told him the

transaction took place to the school. The government also

entered into evidence a photograph of Fenton standing in front

of the school holding the measuring wheel, a separate

photograph of the wheel itself indicating a 950-foot distance,

and an aerial map of the school and area. 

Upon cross-examination, Detective Fenton could not recall

whether, on the day he made the measurement, Officer Wallace

had accompanied him to the location of the drug sale or had

merely described it to him. Defense counsel also questioned

Detective Fenton about the precise point in the alley at which he

began his measurement and asked him to mark that location on

a map. Following that day’s testimony, the prosecutor directed

Fenton to return to the scene with Officer Wallace. The next

day the government recalled Fenton, who testified that -- during

the return trip -- Wallace confirmed that the point at which

Fenton had started measuring was the actual location at which

Wallace had bought the drugs from Battle.2

 Fenton also testified

that he had marked the wrong location on the map the previous

day.

The defense called one witness, a private fingerprint

consultant, who testified that the plastic bags that contained the

drugs purchased by Officer Wallace were of a kind that could

2

Battle did not raise a hearsay objection to Fenton’s testimony

and does not assert one here.
7

have retained latent fingerprints. (The government had not

proffered any fingerprint evidence.)

The jury convicted Battle on two counts relating to the

March 24, 2005 drug transaction: distribution of 50 grams or

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

841(b)(1)(A)(iii) (Count 4); and distribution of 50 grams or

more of cocaine base within 1000 feet of a school, in violation

of 21 U.S.C. § 860(a) (Count 5).3

 The judge sentenced Battle to

135 months on each count, to run concurrently.

Battle raises three issues on appeal. First, he contends that

the district court erred in finding him competent to stand trial. 

Second, he argues that there was insufficient evidence to support

the jury’s verdict that the drugs he sold to Officer Wallace were

“cocaine base” within the meaning of § 841(b)(1)(A)(iii).

Finally, he maintains that there was insufficient evidence that

the sale took place within 1000 feet of a school, within the

meaning of 21 U.S.C. § 860(a). We consider these arguments

below.

II

“[T]he Constitution does not permit trial of an individual

who lacks ‘mental competency.’” Indiana v. Edwards, 128 S.

Ct. 2379, 2383 (2008); see 18 U.S.C. § 4241(d). The Supreme

Court has “define[d] the competency standard as including both

(1) ‘whether’ the defendant has ‘a rational as well as factual

understanding of the proceedings against him’ and (2) whether

the defendant ‘has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding.’”

3

The jury found Battle not guilty on the remaining counts, which

charged him with distributing 50 grams or more of cocaine base on

two other days.
8

Edwards, 128 S. Ct. at 2383 (quoting Dusky v. United States,

362 U.S. 402, 402 (1960)) (emphasis omitted); see Drope v.

Missouri, 420 U.S. 162, 171 (1975); 18 U.S.C. § 4241(d). This

court will uphold a district court’s competency determination

“unless it is clearly arbitrary or erroneous.” United States v.

Caldwell, 543 F.2d 1333, 1349 (D.C. Cir. 1975); see United

States v. Klat, 213 F.3d 697, 702 (D.C. Cir. 2000).

Battle concedes that he had a rational and factual

understanding of the proceedings. Appellant’s Br. 24. He

contests only his “present ability to consult with his attorney.” 

Id. In our view, the district court’s explanation for why it found

Battle to have that ability was neither arbitrary nor clearly

erroneous. 

First, Dr. Channell testified that he did not detect any

indication that Battle suffered from delusional thinking --

whether “with a . . . religious basis” or otherwise -- during his

two extended stays at FMC Devens. See Competency Hearing

Tr. 170-71 (Sept. 6, 2007). The district court was reasonable in

crediting Channell’s testimony, and in rejecting Moldauer’s

contrary conclusion. Mem. Op. at 10. As the court noted,

Channell had significant time to observe Battle, who was under

his custody for two month-long observation periods. By

contrast, Dr. Moldauer saw Battle on only three days: twice

when he interviewed Battle and once when he observed a

meeting between Battle and his counsel. 

Second, Dr. Channell testified, and the court noted, that

Battle had no known history of mental illness or treatment. 

Although Dr. Moldauer was of the opinion that mental health

history is “[n]ot terribly” important in assessing competency,

Competency Hearing Tr. 40 (Sept. 6, 2007), Dr. Channell

considered it to be probative, see id. at 143. The court was well

within its discretion to do the same. 
9

Third, Dr. Channell testified, without contradiction, that

Battle’s score on a standard competency test -- the ECST-R --

raised little or no concern regarding his ability to understand the

proceedings and assist his attorney. Although the parties did

dispute the significance of the MMPI-2 scores, particularly the

results of the second administration of that test, the district court

was not unreasonable in agreeing with Channell’s decision not

to credit those results in light of the large number of questions

to which Battle answered both “yes” and “no.” The court was

not alone in that conclusion: when Dr. Moldauer contacted the

scoring service about the results, the service advised that it

would not provide an interpretive report because it considered

the test “invalid” due to the large number of double-answered

responses. Competency Hearing Tr. 61-62 (June 12, 2007).

Fourth, although Dr. Channell “confirm[ed] Dr. Moldauer’s

and defense counsel’s assessment of [Battle’s] recalcitrant and

irritable temperament,” Mem. Op. at 10, Channell viewed that

behavior as volitional, the result of a conscious choice rather

than the product of a mental defect Battle could not control. The

relevant legal question is not whether appellant will “assist

properly in his defense,” but whether “he [is] able to do” so. 

United States v. Vachon, 869 F.2d 653, 655 (1st Cir. 1989)

(internal quotation marks omitted). As the district court

correctly noted, “‘uncooperativeness with one’s counsel does

not alone prove an inability to communicate.’” Mem. Op. at 10

(quoting Caldwell, 543 F.2d at 1349 n.70). And the court was

well supported in accepting Dr. Channell’s “conclu[sion] that

the defendant can participate in his defense.” Id. (emphasis

added).

Finally, the district court found “by its own observations

that the defendant’s demeanor was controlled, responsive and

appropriate to the testimony and arguments heard during the

competency hearing.” Id. at 9. This, the court said, was further
10

evidence that Battle could control his behavior. Id. at 11. 

Because “evidence of a defendant’s . . . demeanor at trial . . . [is]

relevant” in determining competency, Drope, 420 U.S. at 180,

the court was justified in relying on its own observations to

confirm Dr. Channell’s views.

In United States v. Caldwell, we concluded our analysis of

a defendant’s competency challenge as follows: “In sum, the

evidence was merely contradicted, and the judge found the

Government’s evidence more persuasive.” 543 F.2d at 1349. 

We reach the same conclusion here and, as in Caldwell, reject

the defendant’s challenge.

III

Battle also raises two challenges to the sufficiency of the

evidence supporting his convictions. Our review is highly

circumscribed. “[W]e must accept the jury’s guilty verdict if we

conclude that ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’”

United States v. Andrews, 532 F.3d 900, 903 n.1 (D.C. Cir.

2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

“In making that determination, the 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. (internal quotation marks omitted). 

A 

Battle first challenges the sufficiency of the evidence that

he sold “cocaine base” within the meaning of 21 U.S.C.

§ 841(b)(1)(A)(iii). As this court has explained, “[u]nder § 841,

a ‘certain quantity of “cocaine base” will trigger much stiffer
11

penalties than an equivalent quantity of powdered cocaine.’” 

United States v. Pettiford, 517 F.3d 584, 592 (D.C. Cir. 2008)

(quoting United States v. Powell, 502 F.3d 147, 148 n.1 (D.C.

Cir. 2007)). We have “held that, to ‘uphold the higher penalties

that § 841 prescribes for crimes involving “cocaine base,”’ the

government must prove that the kind of cocaine base seized was

either ‘smokable cocaine base or crack cocaine.’” Id. (quoting

United States v. Johnson, 437 F.3d 69, 71 (D.C. Cir. 2006)). 

“[T]he government,” however, “may prove that cocaine base is

crack cocaine in a variety of ways.” Id. at 593. 

In United States v. Lawrence, 471 F.3d 135 (D.C. Cir.

2006), the government produced the following evidence:

[i] that the substance in question contained cocaine

base, [ii] that at the time of the purchase the drugs

comprised ‘a large white rock substance,’ and [iii] that

the sale of the drugs followed conventional practices

for the sale of crack cocaine. In addition, [iv] the

undercover officers who purchased the drugs from

[defendant] testified that he provided these drugs in

response to their requests to buy crack. 

Id. at 139. Such evidence, we held, was sufficient to support a

verdict of guilty under 21 U.S.C. § 841(b) for distribution of

crack cocaine.

The evidence in this case is indistinguishable. The DEA

chemist testified that the substance at issue contained cocaine

base, with a purity of 74 percent. She also testified that it was

an “off white, chunky material,” Trial Tr. 26 (Apr. 9, 2008),

while the officers described it as “a chunky substance” and as

“chunky, white rock,” Trial Tr. 43, 119 (Apr. 8, 2008). 

Testimony and the parties’ stipulation established that the

transaction followed conventional practices for the sale of crack: 
12

it was packaged in a standard amount for a mid-level or

wholesale dealer, an amount known as a “62” that weighed

approximately 62 grams. Finally, as in Lawrence, the

undercover officer testified that Battle provided the drugs in

response to his request for “62 grams of crack.” Id. at 42.4

As the facts of Battle’s case are indistinguishable from

those in Lawrence, we reject his challenge to the sufficiency of

the evidence that he sold crack cocaine.

B

Battle also challenges the sufficiency of the evidence that

the sale occurred within 1000 feet of a school. Section 860(a)

imposes enhanced penalties on any person “distributing . . . a

controlled substance . . . within one thousand feet of[] the real

property comprising a public or private elementary . . . or

secondary school.” 21 U.S.C. § 860(a). The government must

prove that the distribution took place within 1000 feet of “an

actual” or “operating” school, “not just a school building that is

no longer (or not yet) in use as a school.” United States v.

Hawkins, 104 F.3d 437, 440-41 (D.C. Cir. 1997).

1. Battle’s first contention is that the government failed to

introduce sufficient evidence for a jury to conclude that the

relevant distance was in fact within 1000 feet. If believed,

Detective Fenton’s testimony certainly provided sufficient

evidence: he testified that he used a measuring wheel to

4

Although Battle claims that the government’s failure to

introduce evidence that the drugs were “smokable” is fatal, “[o]ur

cases make clear . . . that ‘evidence about the substance’s

smokeability’ is not required to sustain a finding that it is crack.” 

United States v. Johnson, 519 F.3d 478, 486 (D.C. Cir. 2008) (quoting

Johnson, 437 F.3d at 75). 
13

measure the distance from the location of the drug transaction to

the front of the school, and that the distance was 950 feet. 

Battle’s real contention is that the jury should not have believed

Fenton’s testimony because, in his initial testimony, he marked

the wrong location on the map and could not recall whether

Officer Wallace had accompanied him to the alley where

Wallace had purchased the narcotics. Although Fenton

corrected both deficiencies during the second day of his

testimony, Battle views those corrections as not credible. But

“assessment of witness credibility is a job for the jury rather

than this court,” United States v. Clark, 184 F.3d 858, 865 (D.C.

Cir. 1999), and the jury had ample opportunity to evaluate

Fenton’s testimony both times he took the stand. 

Citing United States v. Applewhite, 72 F.3d 140 (D.C. Cir.

1995), Battle further suggests that the “relatively small

discrepancy” between the statutory requirement of 1000 feet and

Fenton’s 950-foot measurement renders Fenton’s testimony

insufficient. Appellant’s Br. 32-33. But the problem in

Applewhite was that the government had “measured only the

distance between the school and a point short of the location of

the drugs,” and had presented no evidence from which the jury

could “determine the omitted distance.” 72 F.3d at 144. Here,

by contrast, there was no omitted distance: Detective Fenton

testified that his starting point was where Officer Wallace told

him the transaction took place. See Trial Tr. 142 (Apr. 8, 2008). 

2. Battle’s second contention is that the government

“proved nothing more than that the building had at some point

likely been a functioning elementary school.” Appellant’s Br.

34. The government’s evidence, however, was sufficient under

our case law. 

Detective Fenton testified that he measured the distance to

the “Cuno Rudolph Elementary School.” Trial Tr. 121 (Apr. 8,
14

2008). He repeatedly referred to the end-point of his

measurement as “Rudolph Elementary School” and “the

school.” Id. at 120, 121, 124, 125; Trial Tr. 54 (Apr. 9, 2008). 

In addition, the government introduced a photograph of

Detective Fenton standing in front of the school with the

measuring wheel -- a photo that showed the school’s fence, an

event sign, and a child exiting the building. Gov’t Ex. 8; see

Trial Tr. 120 (Apr. 8, 2008).

In Hawkins, this court found it sufficient that an “Officer

. . . testified that [the defendant’s] drug offenses occurred within

1,000 feet of the ‘Garnett-Patterson Junior High School[,]’ . . .

‘a middle school.’” 104 F.3d at 441. “[A] reasonable juror,” we

held, “could take the [officer’s use of the] word ‘school’ to refer

to an operating school.” Id. Likewise, in United States v.

Singletary, 69 F. App’x 468 (D.C. Cir. 2003), we held that an

officer’s testimony “that the offense occurred within 666 feet of

the ‘Raymond Elementary School,’ which the officer also

referred to simply as ‘the elementary school,’ [was] sufficient to

permit a reasonable juror to conclude that the offense occurred

within 1,000 feet of an operating school.” Id. at 469. As the

evidence in Hawkins and Singletary is on all fours with the

evidence in this case, we reach the same result: a reasonable

juror could have found the defendant guilty beyond a reasonable

doubt of distributing narcotics within 1000 feet of an operating

school. 

IV

Although we have concluded that the government offered

sufficient evidence to support Battle’s convictions both for

distributing 50 grams or more of cocaine base under 21 U.S.C.

§ 841 (Count 4), and for distributing the same drugs within 1000

feet of an elementary school under 21 U.S.C. § 860(a) (Count 5),

the government commendably points out that there is still a
15

problem in sustaining both convictions. Appellee’s Br. 52 n.25. 

As the government observes, under United States v. Law, the

two convictions must merge because conviction on both counts

would violate the Double Jeopardy Clause. 528 F.3d 888, 909

(D.C. Cir. 2008). Accordingly, we accept the government’s

suggestion to direct the district court to vacate the § 841

conviction (Count 4). Because the court sentenced Battle to the

same, concurrent terms of imprisonment for the § 841 and

§ 860(a) convictions, resentencing is unnecessary. See United

States v. Baylor, 97 F.3d 542, 548 (D.C. Cir. 1996); United

States v. Holiday, 482 F.2d 729, 731 n.6 (D.C. Cir. 1973).

V

For the foregoing reasons, we affirm the judgment of the

district court in most respects, but remand the case for vacation

of Count 4 of the original indictment.

So ordered.