United States v. Eric Fields ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC ANDRE FIELDS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00125-F-4)
Argued: March 18, 2014 Decided: May 15, 2014
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Gregory and Judge Thacker joined.
ARGUED: Mary Jude Darrow, Raleigh, North Carolina, for
Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Defendant Eric Andre Fields appeals his convictions and
sentence for drug-related offenses, raising several different
issues. For the reasons that follow, we affirm.
I.
“Taken in the light most favorable to the Government, the
evidence adduced at [Defendant’s] trial established the
following facts.” United States v. Burgos, 94 F.3d 849, 854
(4th Cir. 1996) (en banc) (citation omitted). In 2011,
Defendant, who had been living in Texas, returned to Eastern
North Carolina, where his family lived. Defendant worked
occasionally for his brother doing car repairs. Defendant had
previously worked on the sale of a used car to Hartley Bailey.
In Summer 2011, Defendant, then forty years old, worked on a
second car sale to Bailey. The second car was delivered to
Bailey in July 2011.
At trial, Defendant’s brother testified that while at the
car shop with Defendant on the night of August 22, 2011, “Eric
got a phone call that [Bailey] wanted Eric to come pick him up .
. . . Eric left to go get him and never came back . . . .” J.A.
303. Though Defendant’s brother testified that Defendant went
over to Bailey’s house on the night of August 22, 2011 to
finalize paperwork for the car sale, Defendant’s brother
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admitted on cross-examination that he was not listening to the
call Bailey placed to Defendant and “d[id]n’t know exactly what
was discussed . . . .” J.A. 308. Defendant’s brother also
testified that he did not know how or for how long Defendant had
known Bailey.
Also in Summer 2011, state and federal agents were
investigating a drug organization in Brunswick County, North
Carolina. They used a confidential informant to purchase
cocaine from Jerry Hall (“Jerry”), who in turn named Eddie Hall
(“Eddie”) as his drug supplier. Further investigation led to
Tracey Ballard, also known as “Dog.”
Ballard, who began selling drugs for Bailey in 1995,
testified that he had met and talked with Defendant before, in a
junk yard in Delco, North Carolina. Ballard testified that
Defendant “was stating like there was no cocaine around or no
marijuana around right there at that point.” J.A. 137. Ballard
and Defendant were “mostly talking about how there was no
marijuana around or cocaine around and, you know, Hartley Bailey
– the subject of him came up . . . .” J.A. 136.
In August 2011, Ballard allowed law enforcement to search
his residence. There, they found, among other things, a clear,
textured, plastic bag containing cocaine. The textured plastic
bag featured a diamond-like striation pattern and was a type
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“common[ly] [used] as food saver bags . . . to vacuum seal”
items. J.A. 77.
Ballard informed the agents that he had recently picked up
approximately three kilograms of cocaine from Bailey’s house.
Ballard had concealed the cocaine in his pants with his shirt
over it “so it won’t be able to be noticed when I’m leaving
[Bailey’s] house.” J.A. 133. Ballard so concealed the cocaine
“[b]ecause [Bailey] informed me how to do it before.” J.A. 133.
Of the three kilograms he obtained from Bailey, Ballard was to
sell one kilogram and deliver the remaining two kilograms to “a
young guy from the neighborhood” named Emanuel Lewis. J.A. 127.
However, Ballard could not locate Lewis. Ballard therefore
returned the two kilograms of cocaine, vacuum-sealed and wrapped
in black paper, to Bailey.
The information law enforcement gained from Ballard
substantiated reports of “a large amount of narcotics stored in
the garage area” of Bailey’s house. J.A. 81. On that basis,
the agents obtained a warrant to search Bailey’s house and
organized a SWAT team to execute the search. While waiting for
the SWAT team, officers watching Bailey’s house saw Bailey and
his son arrive by car shortly after 9:00 p.m. The two appeared
to enter the house. The officers noticed the interior garage
light turn on and off several times.
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Approximately twenty minutes later, i.e., between 9:00 p.m.
and 10:00 p.m., Defendant arrived, parked in Bailey’s driveway,
and walked toward the front door. By this time, the SWAT team
had also arrived and began closing in on the area. As the team
neared the house, Defendant exited the front door area and
headed toward his car. Defendant then appeared to notice the
approaching SWAT team: His eyes widened and he froze
momentarily. Defendant turned and quickly walked around the
corner of the house, despite SWAT team commands. As he did so,
Defendant’s hands moved toward his waist “as if he was
retrieving an object.” J.A. 155. Defendant’s hands then went
“up in a throwing motion” and law enforcement “saw a black
object leave his hands and go over a privacy fence on that side
of the house.” J.A. 154. Defendant then turned back toward the
SWAT team, which ordered him to “get on the ground.” J.A. 194.
Defendant complied.
Inside the fence, officers found two rectangular, flattened
packages “wrapped in a black-like tissue paper tape . . . .”
J.A. 229. The packages appeared to be the same type of food
saver bags found at Ballard’s residence. One package contained
980.1 grams of cocaine and the second contained 642.8 grams of
cocaine.
Searching Bailey’s house, the officers found a vacuum-
sealing appliance commonly “used to conceal and mask the odor of
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narcotics from K-9’s and other detection devices[,]” J.A. 232,
and food saver bags identical to the ones seized from Ballard’s
residence and from inside the fence. The officers found several
cell phones, a hand gun, and ammunition. And they found “a
ledger describing the sale of narcotics.” J.A. 238. First
among the names on the ledger was “Dog,” listed next to
“$2,750.” J.A. 88. Defendant’s name did not appear on the
ledger.
However, law enforcement found several documents belonging
to Defendant in different parts of Bailey’s home. Specifically,
the officers found a blank personal check of Defendant’s in the
master bathroom and a receipt acknowledging revocation of
Defendant’s commercial driver’s license in the garage area.
They also found two uncashed payroll checks (one issued April
15, 2011 for $387.53, the second issued April 22, 2011 for
$573.11), and a Direct TV bill in a bag in the garage area.
Defendant was arrested and rode in a prisoner transport van
with Ballard, Jerry, and Eddie. Defendant cautioned Ballard to
“keep it hushed . . . because there could be cameras and stuff
like that around” in the van. J.A. 134. According to Ballard,
Defendant stated that “when the police came up over there at
Hartley Bailey’s house he was over there and he was going to
tell them that, you know, he pretty much was over there to sell
a car to Hartley Bailey.” J.A. 134-35.
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Defendant, Jerry Hall, Eddie Hall, and Tracey Ballard were
charged with multiple drug offenses in a ten-count indictment.
Count One charged all defendants with conspiring to possess with
the intent to distribute and distribute twenty-eight grams or
more of cocaine base (crack) and five hundred or more grams of
cocaine. Count Ten charged Defendant with possessing with the
intent to distribute five hundred grams or more of cocaine.
Defendant proceeded to trial on these charges on February 1,
2012. The jury was unable to reach a verdict, however, and the
district court declared a mistrial.
Defendant was re-tried in March 2012. Defendant moved for
a judgment of acquittal at the close of the government’s case
and at the close of all evidence; the district court denied the
motions. During closing arguments, the government three times
mentioned that Emanuel Lewis was Defendant’s cousin, although
this fact was not in evidence. Defendant did not object to
these statements but instead contended that “[t]he fact that my
client is related to somebody” was not “a reason to find him
guilty of something[.]” J.A. 339.
The jury found Defendant guilty on both the conspiracy
count and the possession count. The district court sentenced
Defendant to concurrent sentences of 72 months’ imprisonment,
and Defendant appealed.
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II.
A.
Defendant argues that there is insufficient evidence to
support his convictions. We review this issue de novo. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
The standard for reversing a jury verdict of guilty is a
high one: The Court does so only “where the prosecution’s
failure is clear.” United States v. Foster, 507 F.3d 233, 245
(4th Cir. 2007) (quotation marks omitted). That is because “the
appellate function is not to determine whether the reviewing
court is convinced of guilt beyond reasonable doubt, but,
viewing the evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the Government,
‘whether the evidence adduced at trial could support any
rational determination of guilty beyond a reasonable doubt.’”
Burgos, 94 F.3d at 863 (quoting United States v. Powell, 469
U.S. 57, 67 (1984)). The “jury’s verdict must be upheld on
appeal if there is substantial evidence in the record to support
it,” where substantial evidence is “evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Young, 609 F.3d 348, 355 (4th Cir.
2010) (quotation marks and citations omitted).
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Further, “[w]hile any single piece of evidence, standing
alone, might have been insufficient to establish [the
defendant’s] participation in the . . . drug conspiracy,” the
Court must uphold a conviction where “a rational jury could
infer from the totality of the evidence that a conspiracy
existed.” Burgos, 94 F.3d at 863 (quotation marks omitted).
The focus of our review, therefore, “is on the complete picture,
viewed in context and in the light most favorable to the
Government, that all of the evidence portrayed.” Id.
1.
Defendant contends that there is insufficient evidence to
sustain the jury’s verdict finding him guilty of possession
with the intent to distribute 500 grams or more of cocaine. To
prove possession with the intent to distribute cocaine, the
government was required to show beyond a reasonable doubt that
Defendant knowingly possessed cocaine with an intent to
distribute it. See 21 U.S.C. § 841(a)(1); United States v.
Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011).
Possession of a drug may be actual or constructive.
Penniegraft, 641 F.3d at 572. “The government may prove
constructive possession by demonstrating that a defendant
exercised, or had the power to exercise dominion and control
over an item.” Id. Further, the quantity of drugs within a
defendant’s possession may indicate intent to distribute.
9
Young, 609 F.3d at 355 (citing United States v. Rusher, 966 F.2d
868, 878 (4th Cir. 1992) (“Intent to distribute may be inferred
from the quantity of drugs possessed.”)).
Here, there is substantial evidence to uphold Defendant’s
conviction of possession with the intent to distribute cocaine.
Several witnesses testified that when Defendant left the front
door area of Bailey’s home and appeared to spot the approaching
SWAT team, he threw a “black object” over the fence of Bailey’s
house. J.A. 154. Officers then retrieved two packages “wrapped
in the black covering” from behind the fence. J.A. 157.
Together, the two packages contained approximately 1.6 kilograms
of cocaine. And a government witness testified that a kilogram
of cocaine yields approximately 5,000 individual dosages in
powder form and 10,000 dosages of crack cocaine. In the light
most favorable to the government, this evidence was sufficient
to show that Defendant knowingly possessed 500 grams or more of
cocaine that he intended to distribute. We therefore affirm his
possession conviction.
2.
Defendant also challenges his conviction for conspiracy to
distribute cocaine. To prove this crime, the government must
establish that: (1) an agreement to possess cocaine with intent
to distribute the substance existed between two or more persons;
(2) the defendant knew of the conspiracy; and (3) the defendant
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knowingly and voluntarily became part of the conspiracy.
Burgos, 94 F.3d at 857.
Because a conspiracy is by its nature “clandestine and
covert,” the existence of a conspiracy, as well as a defendant’s
participation in the conspiracy, are generally proved by
circumstantial evidence. Id. at 857. “Once a conspiracy has
been proved, the evidence need only establish a slight
connection between any given defendant and the conspiracy to
support conviction.” United States v. Strickland, 245 F.3d 368,
385 (4th Cir. 2001). See also Burgos, 94 F.3d at 862. Further,
a defendant may participate in a conspiracy “without knowing its
full scope, or all its members, and without taking part in the
full range of its activities or over the whole period of its
existence.” United States v. Allen, 716 F.3d 98, 103 (4th Cir.)
(quotation marks omitted), cert. denied, 133 S. Ct. 2819 (2013).
In our recent United States v. Gomez-Jimenez decision, we
held that the following was enough to sustain convictions for
drug conspiracy and aiding and abetting: (1) evidence that a
particular trailer was a drug stash house; (2) evidence that the
defendant drove to the trailer after two cocaine sales and away
from the trailer to a third sale; (3) evidence that the
defendant stayed at the trailer overnight; and (4) evidence that
the defendant’s son lived in the trailer. __ F.3d __, 2014 WL
1623072, at *6 (4th Cir. 2014).
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Similarly, in Young, we deemed the following sufficient to
support a drug conspiracy conviction: (1) the defendant’s
possession of a large quantity of cocaine; (2) the defendant’s
possession of a large amount of cash; (3) the defendant’s
possession of multiple cell phones, including one he used
exclusively for calling a co-conspirator; and (4) expert
testimony that drug dealers frequently use different cell phones
to make and receive calls from suppliers, customers, and family.
609 F.3d at 355.
And in United States v. Pupo, we held that the following
was sufficient to support a drug conspiracy conviction: (1) the
defendant had carried a tote bag with cocaine in it; (2) the
defendant stayed in a hotel with a co-conspirator until the co-
conspirator spoke to another co-conspirator and reported that a
transaction was complete—though nothing in our analysis in Pupo
suggests that the defendant knew about the call or its contents;
and (3) the defendant was reportedly “going crazy.” 841 F.2d
1235, 1238 (4th Cir. 1988) (en banc). 1
1
While additional facts that could have bolstered the
Court’s analysis were mentioned in the opinion, our analysis of
the sufficiency of the evidence on the conspiracy count
expressly listed a smaller subset of facts that the “jury could
properly conclude . . . were more consistent with participation
than they were with mere acquiescence” and from which the jury
could conclude that the defendant “was a participant in the
conspiracy.” Pupo, 841 F.2d at 1238.
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Here, as in those cases, we cannot conclude that “the
prosecution’s failure is clear.” Foster, 507 F.3d at 245
(quotation marks omitted). Without question, the government
presented substantial evidence that a conspiracy existed.
Numerous government witnesses, including Ballard, testified
about the drug distribution ring that started with Bailey and
extended to others including the Halls. Consequently, all that
the government had to establish was a “slight connection”
between Defendant and the conspiracy. Burgos, 94 F.3d at 861.
This, the government did.
Specifically, looking, as we must, at “the complete
picture, viewed in context and in the light most favorable to
the Government, that all of the evidence portrayed[,]” Burgos,
94 F.3d at 863, the evidence shows that Defendant noted to
Ballard, who had sold drugs for Bailey since 1995, a lack of
marijuana and cocaine, and the subject of Bailey came up. On
the night of Defendant’s arrest, Bailey called Defendant and
asked Defendant to come over to his house. As requested,
Defendant went to Bailey’s house. At the house, there were not
only drug conspiracy items such as packaging paraphernalia, a
sale log, several cell phones, and a gun—but also personal items
of Defendant’s, such as a blank check, uncashed paychecks, and a
bill, found in different parts of the house. Law enforcement
caught Defendant leaving the front door area of Bailey’s house
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with approximately 1.6 kilograms of cocaine tucked in his pants
waist—the same place Ballard testified Bailey had instructed
Ballard to conceal drugs when exiting the house. (To the extent
that Defendant’s insufficiency argument regarding the conspiracy
charge relies on the government’s failure to prove possession of
the cocaine, that argument must fail because we have already
upheld the possession conviction.) And the cocaine that
Defendant possessed was uniquely packaged like the cocaine
Ballard had just returned to Bailey. This evidence, taken
together and in the light most favorable to the government, is
sufficient to sustain the jury’s verdict. Accordingly, we
affirm Defendant’s conspiracy conviction.
B.
With his next argument, Defendant contends the prosecutor
committed misconduct by arguing a fact not in evidence during
closing arguments: The prosecutor told the jury three times in
closing argument that Emanuel Lewis, the person to whom Ballard
attempted to distribute approximately two kilograms of cocaine
for Bailey, was Defendant’s cousin.
Specifically, the government argued that “[Ballard]
indicated that he had to take two kilos back to a guy named
Emanuel Lewis who is the Defendant Eric Fields’ cousin.” J.A.
324. Later, the government stated that, “I would submit to you
in this particular case, Emanuel Lewis wasn’t there when Tracey
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Ballard went to go drop off the cocaine and his cousin came to
pick it up.” J.A. 350. And finally, the government, in arguing
that there was an existing relationship between parties in the
case, again stated that “Emanuel Lewis is the Defendant’s
cousin.” J.A. 353.
Defendant did not object on this basis at trial. To the
contrary, Defendant offered counter-argument on the matter:
“The fact that my client is related to somebody[,] is that a
reason to find him guilty of something? No, that’s not the only
reason to find him guilty of something.” J.A. 339.
Accordingly, we review this issue only for plain error. Alerre,
430 F.3d at 689. “In reviewing for plain error, we must affirm
unless an appellant can show that (1) an error was made, (2) it
was plain, and (3) it affected the appellant’s substantial
rights. Moreover, the correction of plain error lies within our
discretion, which we do not exercise unless the error seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citation and quotation marks
omitted).
In this case, the government concedes that the remarks at
issue were improper. See United States v. Wilson, 135 F.3d 291,
298 (4th Cir. 1998) (“By going outside the evidence, the
prosecutor violated a fundamental rule, known to every lawyer,
that argument is limited to the facts in evidence.” (quotation
15
marks omitted)). However, “[v]iewed in context, the
prosecutor’s statements, although inappropriate and amounting to
error, were not such as to undermine the fundamental fairness of
the trial and contribute to a miscarriage of justice.” United
States v. Young, 470 U.S. 1, 16 (1985).
In determining whether a “defendant’s substantial rights
were prejudiced to the point of denying him a fair trial,” we
have considered various factors in the context of the entire
trial: (1) the degree to which the prosecutor’s remarks have a
tendency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced to establish
the guilt of the accused; (4) whether the comments were
deliberately placed before the jury to divert attention to
extraneous matters; (5) whether the prosecutor’s remarks were
invited by defense counsel; and (6) whether curative
instructions were given to the jury. Wilson, 135 F.3d at 299.
Looking to those factors here, we cannot conclude that the
government’s misconduct deprived Defendant of a fair trial.
First and foremost, that Defendant and Lewis were cousins was
largely irrelevant to the government’s case against Defendant
for possession of cocaine with intent to distribute. As held
above, the government presented substantial evidence to show
that Defendant possessed cocaine with the intent to distribute
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it. Further, while Defendant contends that “[t]here was a
paucity of evidence placing the defendant into the conspiracy”
and thus “[b]y arguing that the defendant and Emanuel Lewis were
related, the government provided the jury with the proverbial
‘missing link[,]’” Appellant’s Br. at 11, we have already held
that the government proffered substantial evidence of
Defendant’s connection to Bailey such that his conspiracy
conviction must be sustained. For purposes of the conspiracy
case, too, then, that Defendant and Lewis were cousins was
largely a sideshow.
Defendant points to the likely cause of the misstatements:
“Since this was a re-trial after a hung jury, the erroneous
statements of the prosecutor may have come from the earlier
testimony, or may have been information gleaned through the
investigation, or trial preparation.” Appellant’s Br. at 9-10.
Thus even Defendant does not suggest, nor does anything else,
that the comments were deliberately placed before the jury for
nefarious purposes. Indeed, defense counsel himself appears to
have lost sight of the fact that Lewis’s and Defendant’s
relationship had not been introduced into evidence, since
defense counsel himself brought the issue up to the jury,
stating that “[t]he fact that my client is related to
somebody[,] is that a reason to find him guilty of something?
17
No, that’s not the only reason to find him guilty of something.”
J.A. 339.
Given that defense counsel not only failed to object to,
but even himself mentioned, Lewis’s and Defendant’s
relationship, it is not surprising that the district court
failed to give a curative instruction specifically geared to the
misstatements. But the district court did instruct the jury,
just prior to closing arguments, that “[y]ou will recall at the
outset I instructed you that what the lawyers had to say in the
case was not evidence. You should not consider what they have
to say as evidence and that instruction is still valid.” J.A.
319.
In sum, we cannot conclude that the prosecutor’s
misstatements “undermine[d] the fundamental fairness of the
trial and contribute[d] to a miscarriage of justice.” Young,
470 U.S. at 16. We therefore will not upend Defendant’s
convictions on that basis.
C.
Finally, Defendant argues that the district court committed
procedural error in failing to specifically address the
pertinent 18 U.S.C. § 3553(a) factors during sentencing. We
review the sentence for reasonableness, applying an abuse of
discretion standard. United States v. Diosdado-Star, 630 F.3d
359, 363 (4th Cir. 2011).
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When sentencing, a district court should first correctly
calculate the applicable United States Sentencing Guidelines
range and thereafter give the parties the opportunity to argue
for whatever sentence they deem appropriate. United States v.
Hernandez, 603 F.3d 267, 270-71 (4th Cir. 2010). The sentencing
court must then conduct an individualized assessment of the
facts before it, select a sentence, and explain the chosen
sentence. Id. But when a sentencing court decides to simply
apply the Sentencing Guidelines, “doing so will not necessarily
require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356 (2007). And a district court generally need not
“robotically tick through § 3553(a)’s every subsection.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Here, Defendant’s Sentencing Guidelines range was 63 to 78
months. J.A. 372. The district court heard argument from both
sides on the Section 3553(a) factors and commented on each
side’s presentation. For example, the court noted that it was
“very impressed with [Defendant’s] naval service and his getting
his welding certificate,” J.A. 375, but observed that Defendant
“let himself down and he let [his family] down too.” J.A. 376.
In response to the government’s argument that “the court needs
to temper [Defendant’s accomplishments] with the harm he’s done
to our community[,]” the district court stated, “Well, I tend to
agree with you. . . . I’ve said this a million times and I’ll
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say it to Mr. Fields, if you’re going to stop using drugs you’ve
got to change your friends because they’ll talk you back into
using them if you keep friends that are using drugs.” J.A. 378.
The district court stated that it had considered the Section
3553(a) factors and imposed a within Guidelines 72-month
sentence.
In sum, the record shows that the district court considered
the pertinent Section 3553(a) factors, made an individualized
sentencing determination, and explained, even if relatively
briefly, that determination. We therefore affirm Defendant’s
sentence.
III.
For the foregoing reasons, Defendant’s convictions and
sentence are
AFFIRMED.
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