United States v. Green ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5809
DERRICK GREEN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-93-180-S)
Submitted: January 23, 1996
Decided: March 18, 1996
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Denise C. Barrett, Assis-
tant Federal Public Defender, Martin Bahl, Staff Attorney, Baltimore,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Bonnie S. Greenberg, Joseph H. Young, Assistant United States
Attorneys, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Derrick Green was convicted by a jury of conspiracy to distribute
crack cocaine, 21 U.S.C.A. § 846 (West Supp. 1995), and money
laundering, 18 U.S.C.A. § 1956(a)(1)(B)(i) (West Supp. 1995), 18
U.S.C. § 2 (1988). He received a sentence of 360 months imprison-
ment. Green appeals his conviction, contending that the district court
abused its discretion by excusing two jurors for cause after conduct-
ing an inadequate voir dire and in permitting a government witness
to vouch for the trustworthiness of other government witnesses. He
also appeals his sentence on the grounds that the 100-to-1 sentencing
ratio for crack and cocaine offenses has no rational basis in light of
the Sentencing Commission's recent recommended amendments to
the sentencing guidelines and that the district court erred in refusing
to depart downward because of the disparate impact of the crack pen-
alties on African Americans. Finding no error, we affirm in part and
dismiss in part.
During jury selection, the district court granted the government's
motion to excuse Jane Rostov for cause. Rostov had been a juror in
a previous drug trial. She described it as a "dreadful, dreadful experi-
ence," and informed the court that she believed the defendant in that
trial was convicted because the jury wanted to get out for the week-
end. When the district court asked, "Do you feel the same situation
might be applicable here?" Rostov answered, "I hope not, but I don't
know." Over defense counsel's objection, the district court excused
Rostov because, "from her view and whatnot, . . . she's very con-
cerned about the way the trial would be conducted and I think she
would rely heavily on her prior experience." A second juror, Gordon
Schwarz, who would have been an alternate, was excused because he
said he had signed petitions for the legalization of drugs and would
have a moral difficulty in serving on the jury. The court expressed
"misgivings as to whether he can instinctively . . . render an impartial
verdict."
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Citing Wainwright v. Witt, 469 U.S. 412, 424 (1985), Green main-
tains that the district court should have inquired further of both poten-
tial jurors to find out whether they could set aside their personal views
and experiences and render an impartial verdict on the evidence. The
court was required to make that determination, but was not required
to follow any particular formula in doing so. District courts are given
wide discretion in conducting voir dire to determine whether a partic-
ular juror should be excused. Person v. Miller , 854 F.2d 656, 665 (4th
Cir. 1988), cert. denied, 489 U.S. 1011 (1989). Here, the district court
questioned Rostov at some length and concluded that her experience
in a prior case would make it difficult for her to be impartial. Schwarz
stated that he had a moral problem with serving on the jury in a drug
case. His statement made further questioning unnecessary. We find
that the district court did not abuse its discretion in concluding that
either juror should be excused.
Eight witnesses who had worked with or for Green testified at trial
about his drug trafficking. Internal Revenue Service Agent Edward
Calhoun, a summary witness,* also testified that Green had spent
approximately $65,000 from April 1991 to January 1992, although his
only known legal income during that time was $4500 from gambling.
Calhoun estimated Green's expenditures using records of rental pay-
ments and purchases of furniture and jewelry, as well as evidence of
wire transfers, payment of legal fees, and the purchase of a car for
$8700 in cash. Under cross-examination, Calhoun agreed that some
of his information came from informants and was only accurate to the
extent that they were reliable, but he stated that he did not take such
information at face value.
On redirect, the prosecutor asked Calhoun whether he usually
attempted to corroborate the information he received from informants.
Green's attorney objected on relevance grounds and was overruled.
The prosecutor then asked Calhoun what kind of corroboration he
looked for--which Calhoun briefly described--and whether he had
made that effort with regard to Bobby Armstrong, one of the govern-
ment witnesses. Green's attorney again objected and this time argued
that the question amounted to vouching for the credibility of the gov-
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*Fed. R. Evid. 1006 permits certain types of evidence to be presented
in summary form.
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ernment's witnesses. The district court held that the government could
ask Calhoun about his general procedure for corroboration. The gov-
ernment's last question was whether Calhoun had looked for corrobo-
ration of the testimony in this case, to which Calhoun again answered
that he had.
It is error for the government to vouch for the credibility of its wit-
nesses, either through the prosecutor or a government witness who
testifies as to the trustworthiness of other witnesses. United States v.
Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). However, the government
may explain its investigative procedures. Id. While Calhoun's affir-
mation that he had attempted to corroborate Bobby Armstrong's
information and that of the other government witnesses bordered on
vouching, Calhoun did not express an opinion as to the credibility of
any of the witnesses. Moreover, this line of questioning was quickly
cut off and the prosecutor did not pursue it after the bench conference
except for one general question (which the court had previously
allowed) about whether Calhoun made a practice of attempting to cor-
roborate information from informants.
Green argues that the district court abused its discretion in permit-
ting any evidence that Calhoun had corroborated the testimony of the
government witnesses. However, Calhoun did not say he had been
able to corroborate the information he received. Rather, he testified
that he always corroborated information from informants "to the
extent possible," using various techniques. Such testimony about
investigative techniques was admissible, and the district court did not
abuse its discretion in allowing it.
After his conviction, Green raised a number of constitutional chal-
lenges to the penalties for crack offenses, all of which were rejected
by the district court. He renews these challenges on appeal. First,
Green concedes that this Court has already ruled that the 100-to-1
severity ratio for offenses involving crack and cocaine has a rational
basis, United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir. 1990),
but asks this panel to suggest an in banc hearing to reconsider the
issue in light of the Sentencing Commission's 1995 proposed amend-
ment (not adopted by Congress) to eliminate the difference in sen-
tencing for the two types of offenses. We decline to do so.
4
Next, Green seeks review of the district court's denial of a down-
ward departure on the ground that the Sentencing Commission failed
to take into account that there is no difference between crack and
cocaine and because of the disparate impact of the current penalty
structure on African Americans. The district court declined to depart,
finding that a departure was precluded by United States v. Bynum, 3
F.3d 769, 774-75 (4th Cir. 1993), cert. denied , ___ U.S. ___, 62
U.S.L.W. 3552 (U.S. Feb. 22, 1994) (No. 93-7295), which held that
the disparate impact of the crack sentencing scheme was not foreseen
by the Sentencing Commission but was not a proper basis for a depar-
ture. The court's decision not to depart is not reviewable on appeal.
United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498
U.S. 819 (1990).
We therefore affirm the sentence imposed by the district court. We
dismiss that portion of the appeal which challenges the district court's
decision not to depart. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART
5