Federal Evidence Review

Fifth Circuit notes alternative ways to prove the distance, in United States v. McCall, 553 F.3d 821 (5th Cir. Dec. 19, 2008) (No. 07-51456)

A recent Fifth Circuit decision noted evidentiary options that may be considered in proving a distance. The statute in question imposed an enhanced sentenced for the distribution of controlled substances within 1000 feet of a school.

In the case, defendant McCall was essentially “set up” by “longtime friend” Williams who agreed to cooperate with law enforcement in order to obtain a more lenient sentence for her husband. She participated in two controlled buys and purchased more than 50 grams of crack during two separate transactions. Both transactions took place in the defendant’s residence, which was located near an elementary school. Defendant McCall was charged with distributing crack within 1000 feet of a school. At trial, the defense argued that the government failed to prove the drug transaction occurred within 1000 feet of a school. In trying to prove the requisite distance, the government introduced “(1) an aerial photograph without scale, which showed the elementary school and McCall’s house; and (2) testimony from Detective Nayola that he had driven the streets shown in the photograph a number of times and that the school and house were, in his opinion, within 1000 feet of each other.” McCall, 553 F.3d at 825 (footnote omitted).

The defendant was convicted on both counts. On appeal, the defendant raised a sufficiency of the evidence challenge, which presented an issue about the type of evidence used to prove the requisite proximity to the school.

The Fifth Circuit concluded the government had failed to prove the transaction occurred within 1000 feet of a school beyond a reasonable doubt. The circuit had not previously “fleshed out extensively” the “type and quantum of evidence necessary to prove the distance between the two relevant points (the school property and the site of the drug transaction) beyond a reasonable doubt.” McCall, 553 F.3d at 831. The photograph was insufficient because the jurors were not provided any scale by which to determine the factual issue of 1000 feet. Without “some indication of scale and distance on it, the aerial photograph [wa]s useless,” noted the circuit. The lay opinion of the detective also was insufficient: “Other than eliciting that he had driven the relevant streets ‘over 100 times,’ the government laid no foundation for Detective Nayola’s lay opinion testimony that the house and school are within 1000 feet of each other. He did not testify that he had ever had an occasion to note the distance between Gale Pond Alamo Elementary and McCall’s house (or any other distance between points in the neighborhood), or that he had ever ‘clocked’ the distance on his odometer, or that he possessed a preternatural
facility for instantaneously conjuring the distance between any two points in a neighborhood with anything approaching certainty. Unsubstantiated lay opinion testimony based on nothing more than the casual experience of driving around a neighborhood does not suffice to allow a reasonable juror to conclude —beyond a reasonable doubt—that two properties are within 1000 feet of each other.” McCall, 553 F.3d at 834 (footnotes omitted).

The circuit then noted other evidentiary means that may be considered to prove the distance:

“The myriad ways that the government easily and simply could have proved the static, objective fact of the distance between the elementary school and McCall’s house unavoidably influences the content that we give to the concept of what a reasonable juror must see and hear to know a distance beyond a reasonable doubt. For example, the government could have offered testimony from a witness who measured the distance, or who could authenticate the circle [in the photograph] as accurately superimposing a 1000-foot radius on the aerial photograph, or introduced a witness who knew how the aerial photograph was confected and knew its scale. Or, the government could have tendered, inter alia, a map with scale, or a certified copy of a public record of the distance, or an official publication of the distance. It also could have emulated the successful prosecutor in [United States v.] Sparks,2 F.3d 574, 579-80 (5th Cir. 1993)] by having a qualified official testify. The circle, far more sufficient evidence of the distance, was excluded on the first day of a trial that continued for a second day; and the government did not rest until six more witnesses had testified. Yet at no point after its preferred method — the photo with the circle on it — was excluded, did the government bother to seek leave to obtain and offer probative evidence of the distance; and nothing in the record reveals an impediment to it having done so.”

McCall, 553 F.3d at 834.

On this record, the Fifth Circuit reversed the distribution of crack within 1000 feet of a school convictions under 21 U.S.C. § 860. However, the distribution convictions under sections 841(a)(1) and 841(b)(1)(A) were affirmed. The case was remanded for entry of judgment of acquittal on the section 860 counts and for re-sentencing. The Double Jeopardy Clause barred retrial of the defendant on the section 860 counts.