United States v. Edgar Melvin , 489 F. App'x 695 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR JEROME MELVIN, a/k/a EJ Melvin, a/k/a Big Dog,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:10-cr-00580-CMC-1)
Submitted: June 13, 2012 Decided: July 31, 2012
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Susan Z. Hitt, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Edgar Jerome Melvin of thirty-seven
violations of federal law, including racketeering, conspiracy to
distribute cocaine, and extortion. These convictions were based
on evidence presented at trial that between 2001, when Melvin
took office as Sherriff of Lee County, South Carolina, and his
arrest in 2010, he abused his office and enriched himself and
his associates by extorting money from drug dealers in exchange
for fixing criminal charges and protecting them from
investigation by law enforcement agencies. On appeal, Melvin
asserts a number of trial errors. We have reviewed Melvin’s
objections and find them to be without merit.
Melvin initially contends that the district court
erred in denying Melvin’s motion to sever Counts Twenty-Seven
through Twenty-Nine of the Second Superseding Indictment. These
Counts allege that Melvin made false statements to the FBI
regarding his knowledge of and contact with drug dealers in Lee
County, in violation of 18 U.S.C. § 1001(a)(2). We assess a
claim of improper joinder under Fed. R. Crim. P. 8(a) de novo
and a district court’s refusal to sever a joined count under
Fed. R. Crim. P. 14 for abuse of discretion. United States v.
Cardwell, 433 F.3d 378, 384-85 (4th Cir. 2005). Counts Twenty-
Seven through Twenty-Nine allege that Melvin made knowingly
false statements by denying that he had any association with or
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knowledge of the drug dealing activities of his co-conspirators,
and by denying any involvement in the extortion scheme and drug-
trafficking conspiracy. The false statements are thus directly
related to Counts One and Two, which allege a pattern of
racketeering and extortion and a conspiracy to distribute
cocaine and cocaine base. The statements also prove Melvin’s
attempt to further the drug conspiracy by protecting himself and
his co-conspirators from apprehension. Thus, the false
statement counts were properly joined under Rule 8(a) because
they were “based on the same act or transaction” and were
“connected with or constitute parts of a common scheme or plan.”
Fed. R. Crim. P. 8(a). Additionally, we find no abuse of
discretion in the district court’s denial of Melvin’s motion to
sever under Rule 14. The joined crimes have a logical
relationship with one another, see Cardwell, 433 F.3d at 385,
and the evidence of the joined crimes would have been mutually
admissible in separate trials, see United States v. Cole, 857
F.2d 971, 974 (4th Cir. 1977).
Next, Melvin challenges certain statements and trial
testimony that he contends were hearsay, bad character evidence,
and unduly prejudicial, and were therefore admitted in violation
of the Federal Rules of Evidence. We review the district
court’s decision to admit these statements for abuse of
discretion. United States v. Mark, 943 F.2d 444, 447 (4th Cir.
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1991); United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir.
1992).
Melvin first challenges certain testimony as hearsay.
This testimony includes statements by witnesses that Melvin
“fixed” a traffic ticket, that Melvin was paid to dismiss
criminal charges, and that drug dealers paid Melvin for
protection from criminal investigation. The district court
admitted this testimony as co-conspirator statements admissible
under Fed. R. Evid. 801(d)(2)(E). Melvin contends that these
statements had nothing to do with the conspiracy to possess and
distribute drugs in Count Two -- the only conspiracy charged in
the Second Superseding Indictment. Perhaps so, but the test
under Fed. R. Evid. 801(d)(2)(E) does not require that a
conspiracy be charged; the Rule requires only that the
government show by a preponderance of the evidence that a
conspiracy existed in fact. See United States v. Goins, 11 F.3d
441, 442 (4th Cir. 1993); see also United States v. Cox, 923
F.2d 519, 526 (7th Cir. 1991); United States v. Trowery, 542
F.2d 623, 626 (3d Cir. 1976). Here, the government produced
ample evidence that Melvin engaged in racketeering activities
that involved a jointly-undertaken criminal enterprise with the
declarants of the statements in question.
Melvin next challenges the inclusion of Quentin
Davis’s testimony that, in 2006, while purchasing drugs from
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George Patel, Davis saw a car he identified as Melvin’s truck
pull up behind Davis’s car. Davis testified that Patel brought
cocaine from Melvin’s truck to Davis’s car and confirmed to
Davis that Melvin was driving the truck. Melvin submits the
admission of this testimony was error pursuant to Anders v.
California, 36 U.S. 738 (1967), and also argues that the
testimony was unduly prejudicial under Fed. R. Evid. 403.
Having reviewed the record, we find no abuse of discretion in
the district court’s admission of the statements. See United
States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011). Count Two
charges Melvin with participating in a conspiracy to distribute
drugs from 2001 until 2010. Thus, Davis’s testimony was
intrinsic evidence of Melvin’s participation in the conspiracy,
and was also highly probative.
Melvin further challenges the introduction of evidence
concerning several uncharged bad acts, pursuant to Fed. R. Evid.
404(b) and 403, arguing that the evidence portrayed him “as a
law enforcement officer who does not enforce the law, but bends
it to his will.” Appellant’s Br. at 55. Having reviewed the
record, it is clear that the testimony about Melvin’s uncharged
conduct concerned bad acts that occurred in the context of
Melvin’s racketeering enterprise and proved elements of the
racketeering charge, like the existence of a illegal enterprise,
and the kinds of acts the enterprise engaged in. See United
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States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007); United
States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994). Moreover,
we find that the evidence was not unduly prejudicial. Here, the
government charged Melvin with racketeering and pattern of abuse
of his office, and so was permitted to offer evidence that
established the context for those crimes.
Melvin also challenges the admission of testimony that
he failed to report campaign contributions, testimony of his
interest in a co-conspirator’s nightclub, and his post-arrest
statements. He also challenges the sufficiency of the
indictment with respect to the false statement counts. We have
carefully reviewed all of Melvin’s challenges and find them to
be without merit.
Accordingly, we affirm the judgment of the district
court in all respects. 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 in the
decisional process.
AFFIRMED
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