United States of America v. Damon Chappelle, a/k/a KEVIN JESSUP

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3689
UNITED STATES OF AMERICA,
Appellee
v.
DAMON CHAPPELLE, a/k/a KEVIN JESSUP,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 02-cr-00032-01 )
District Judge: Honorable Jay C. Waldman
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Submitted Under Third Circuit L.A.R. 34.1(a)
July 18, 2003
Before: McKEE, BARRY, and W EIS, Circuit Judges.
(Filed: September 5, 2003)
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OPINION
WEIS, Circuit Judge.
Defendant was convicted by a jury of possession of crack-cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1); possession with intent to
distribute crack-cocaine within 1,000 feet of a school in violation of 21 U.S.C. § 860(a);

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possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); and
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A). He was sentenced to incarceration for a term of 162 months.
The only issue raised on appeal is whether the District Court committed
plain error in allowing an expert witness to testify that, in his opinion, defendant
possessed, with intent to distribute, the 4.64 grams of cocaine base found on his person.
The following colloquy occurred between the prosecutor and the law enforcement expert:
Question: Now, with respect to that amount of cocaine - or cocaine base, 48 Ziploc
packets, and as the stipulation indicates, . . . approximately 4.64 grams, I
will also represent to you that at the time that was taken from the defendant,
he also had in his possession $163 in United States currency in the
following denominations: 48 $1 bills, 3 $10 bills, and 1 $20 bill. I will
further represent that the defendant is also charged with being in possession
of a .22 caliber revolver which was loaded with six live rounds of .22
caliber ammunition. In light of all that information, and based upon your
training and experience, do you have an opinion as to whether those
amounts of crack cocaine that were recovered by police in this case were
consistent with the intent to distribute or mere possession?
Answer: Yes, my opinion is that the quantity of drugs involved, the denominations of
the currency, plus possession of a firearm and also the lack of any
paraphernalia in and of itself, in that totality, I would – my opinion is that
the amount of drugs was maintained by defendant for possession with intent

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to distribute, as opposed to mere possession .... It’s been my experience
over the course of more than 1500 drug investigations ... in my 15 years of
my career that the vast majority of individuals that possess drugs for their
own personal usage only maintain a quantity of drugs on their person to
utilize during an average day’s time frame. For a person to possess this
amount, this volume of individual dosage units, it would be far in excess of
what the average user, based upon my experience, would be in possession
of. This is, however, clearly consistent with what an individual would
possess if he or she were engaged in the distribution or the business of
possession with intent to distribute a controlled substance such as crack
cocaine.
Defendant did not object to this testimony, but now asserts that the expert’s opinion
violated Rule of Evidence 704.
To support his contention, defendant cites United States v. Watson, 260
F.3d 301, 310 (3d Cir. 2001), where we concluded that permitting somewhat similar
testimony constituted an abuse of discretion.
In that case, the prosecutor asked whether the witness had “formed an
opinion as to whether or not the substance . . . was possessed with the intent to distribute
. . ..” The prosecutor then questioned experts on two more occasions about the
defendant’s intent. In the end, the prosecutor posed the issue three times, and each time
over defense counsel’s objections. In finding an abuse of discretion, we noted that “[t]he
prosecutor . . . pushed his questions too far and he repeatedly elicited expert testimony in

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violation of Rule 704(b).” Id. at 309.
Preliminarily, we observe that the standard of review here is plain error,
rather than abuse of discretion. Plain error requires a showing of an error that is clear and
obvious and affects substantial rights. United States v. Olano, 507 U.S. 725 (1993).
In this case, we are faced with a single question that objectively referred to
whether the circumstances of the case “were consistent with the intent to distribute or
mere possession.” The expert answered that, in his opinion, the amount of drugs was
maintained by the defendant for “possession with intent to distribute, as opposed to mere
possession.” In concluding his answer, the witness said possession of the volume of
drugs was “clearly consistent with what an individual would possess if . . . engaged in the
distribution . . . with intent to distribute . . ..”
Both the prosecutor’s question and the expert’s response used the words
“consistent with,” rather than the more direct inquiry as to the defendant’s intent. The
difference in the wording is slight, but when considering that Watson reached the outer
limits and that our standard of review is more restrictive, we conclude that no plain error
occurred in this case.
We take this occasion, however, to caution prosecutors that they ought to be
vigilant in phrasing questions that so obviously have the potential of eliciting an answer
that would create a problem under Watson. Attorneys should avoid inquiries of experts

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that lead to expression of inappropriate “opinions.” Careful formulation of questions can
present the evidence to the jury without creating error.
Accordingly, the judgement of conviction will be affirmed.

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_____________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ Joseph F. Weis
United States Circuit Judge

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