United States v. John Cannon ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN TIMOTHY CANNON, a/k/a Mr JT,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00430-JFA-4)
Submitted: June 18, 2018 Decided: July 10, 2018
Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aimee J. Zmroczek, A.J.Z. LAW FIRM, LLC, Columbia, South Carolina, for Appellant.
Beth Drake, United States Attorney, Jimmie Ewing, William Kenneth Witherspoon,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Timothy Cannon was convicted following a jury trial of conspiracy to
distribute and possess with intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. § 846 (2012), and 4 counts of use of a communication in furtherance of a
controlled substance offense, in violation of 21 U.S.C. § 843(b) (2012) and 18 U.S.C. § 2
(2012). The district court sentenced Cannon to 224 months’ imprisonment. Cannon
appeals, raising various challenges to his convictions and sentence. We affirm.
I
Cannon argues that the district court abused its discretion in denying his pretrial
motion for a reliability hearing. Cannon’s opening brief merely incorporates by reference
his district court pleadings, a tactic of which we have disapproved. See Fed. R. App. P.
28(a)(8)(A); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009);
McCarver v. Lee, 221 F.3d 583, 588 n.1 (4th Cir. 2000). In any event, we easily
conclude that the district court committed no error in this regard. We are cognizant of the
dangers of compensated informant testimony and the credibility concerns attendant to
testimony obtained in exchange for sentencing considerations. See United States v.
Garcia-Lagunas, 835 F.3d 479, 489 (4th Cir. 2016), cert. denied, 137 S. Ct. 713 (2017);
United States v. Levenite, 277 F.3d 454, 462-63 (4th Cir. 2002). But Cannon identifies
no authority requiring, or even authorizing, the pretrial reliability hearing he requests. 1
1
The authority on which Cannon relies reaches an opposite or a far narrower
holding than the conclusion he asks us to reach. See Dodd v. State, 993 P.2d 778, 784
(Okla. Crim. App. 2000) (declining to require hearing as intrusive on jury’s function);
(Continued)
2
We conclude the district court did not err in declining to impinge on the jury’s function in
this manner. Cf. United States v. Palacios, 677 F.3d 234, 248 (4th Cir. 2012)
(“Determinations of credibility are within the sole province of the jury and are not
susceptible to judicial review.” (alteration and internal quotation marks omitted)).
II
Cannon next raises several evidentiary challenges. “We review a district court’s
evidentiary rulings for abuse of discretion.” United States v. Garcia, 855 F.3d 615, 621
(4th Cir. 2017). Reversal is warranted only if, considering the relevant law and facts, the
district court’s determination “was arbitrary or irrational.” United States v. Faulls, 821
F.3d 502, 508 (4th Cir. 2016) (internal quotation marks omitted). We review evidentiary
rulings for harmless error and will not reverse if we can “say with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error.” United States v. Cloud, 680
F.3d 396, 401 (4th Cir. 2012) (internal quotation marks omitted). We review
unpreserved evidentiary challenges for plain error. United States v. Galloway, 749 F.3d
238, 244 (4th Cir. 2014); see Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (describing standard).
D’Agostino v. State, 823 P.2d 283, 285 (Nev. 1991) (per curiam) (requiring reliability
hearing in penalty phase of capital trial to admit informant’s testimony regarding
defendant’s admissions of past homicides).
3
Cannon contends that the district court abused its discretion in allowing Agent
Brian Jones, a lay witness, to effectively provide expert opinion testimony by interpreting
the contents of Cannon’s wiretapped calls and identifying certain quantities of cocaine as
“seller” quantities. Because Cannon did not raise this specific objection in the district
court, we review for plain error. See Molina-Martinez, 136 S. Ct. at 1343.
“A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise,” so long as the expert’s
specialized knowledge will assist the trier of fact in understanding the evidence or
determining a fact at issue and the testimony is sufficiently reliable. Fed. R. Evid. 702.
Lay witness opinion testimony must be “rationally based on the witness’ perception,”
rather than “scientific, technical, or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701(a), (c); see United States v. Johnson, 617 F.3d 286, 292-93 (4th
Cir. 2010) (discussing distinction).
Generally, “testimony regarding a witness’s understanding of what the defendant
meant by certain statements is permissible lay testimony, so long as the witness’s
understanding is predicated on his knowledge and participation in the conversation.”
United States v. Hassan, 742 F.3d 104, 136 (4th Cir. 2014). Although a court may
properly qualify a law enforcement officer as an expert capable of interpreting coded
drug conversations, the officer must both qualify as an expert based on his experience
and demonstrate that his interpretation is based on reliable methods that were reliably
applied to the facts at issue. Galloway, 749 F.3d at 245; See United States v. Wilson, 484
F.3d 267, 276-77 (4th Cir. 2007).
4
Although Agent Jones was not a participant to the calls at issue and did not
explain his methodology, participants to those calls and messages also testified as to their
content, providing an explanation entirely consistent with Agent Jones’ testimony. The
court also provided limiting instructions to the jury regarding the appropriate use of
Agent Jones’ testimony. Even assuming, without deciding, that the district court plainly
erred in allowing Agent Jones to interpret the content of the telephone calls and text
messages introduced at trial, we conclude that any such error did not affect Cannon’s
substantial rights. See Molina-Martinez, 136 S. Ct. at 1343 (requiring appellant to
demonstrate “a reasonable probability that, but for the error, the outcome of the
proceeding would have been different” (internal quotation marks omitted)).
Cannon also contends that the district court erroneously admitted the
Government’s summary chart of the conspiracy. “The admission of summary charts will
not be overturned on appeal unless [the] decision is shown to be arbitrary or irrational.”
United States v. Loayza, 107 F.3d 257, 264 (4th Cir. 1997) (internal quotation marks
omitted). Under Fed. R. Evid. 611(a), the Government may use charts and other
illustrative devices so long as they assist the jury in understanding the evidence
presented. See United States v. Johnson, 54 F.3d 1150, 1157-61 (4th Cir. 1995)
(describing test). Contrary to Cannon’s assertion, the Government’s chart did not contain
impermissible hearsay. See Fed. R. Evid. 801(a), (c). Our review of the chart and
associated trial testimony reveals no abuse of discretion in its admission.
Cannon further challenges the admission of text messages between Cannon’s
alleged coconspirator and another individual, contending that these messages were
5
inadmissible hearsay and violated the Confrontation Clause. A statement is not hearsay if
it is “offered against an opposing party and . . . was made by the party’s coconspirator
during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E); see United
States v. Ayala, 601 F.3d 256, 267-68 (4th Cir. 2010) (describing test). “A statement by a
co-conspirator is made in furtherance of a conspiracy if it was intended to promote the
conspiracy’s objectives, whether or not it actually has that effect.” United States v.
Graham, 711 F.3d 445, 453 (4th Cir. 2013) (internal quotation marks omitted). In view
of the testimony of the coconspirator who sent the text messages and the evidence of the
conspiracy as a whole, we conclude that the messages were admissible under Rule
801(d)(2)(E). They also do not run afoul of the Confrontation Clause, as they are not
testimonial statements. See United States v. Alvarado, 816 F.3d 242, 251-52 (4th Cir.
2016); United States v. Dargan, 738 F.3d 643, 650 (4th Cir. 2013).
III
Cannon next argues that the district court abused its discretion, and produced a
fatal variance, by denying his request for a jury instruction on multiple conspiracies.
Cannon relatedly argues that the district court erred in denying his motion for judgment
of acquittal, as the evidence at trial established multiple conspiracies and failed to
demonstrate more than a buyer-seller relationship between Cannon and his alleged
coconspirators.
We review the district court’s denial of a proposed jury instruction for abuse of
discretion. United States v. Sonmez, 777 F.3d 684, 688 (4th Cir. 2015); see United States
v. Savage, 885 F.3d 212, 223 (4th Cir. 2018). “An impermissible constructive
6
amendment—also referred to as a fatal variance—occurs when the government, usually
through its presentation of evidence or argument, or the district court, usually through its
jury instructions, broadens the possible bases for conviction beyond those presented by
the grand jury.” United States v. Moore, 810 F.3d 932, 936 (4th Cir. 2016) (internal
quotation marks omitted).
“A multiple conspiracy instruction is not required unless the proof at trial
demonstrates that [the defendant was] involved only in [a] separate conspirac[y]
unrelated to the overall conspiracy charged in the indictment.” United States v.
Squillacote, 221 F.3d 542, 574 (4th Cir. 2000). The failure to give a multiple
conspiracies instruction is reversible error only where “the evidence of multiple
conspiracies was so strong in relation to that of a single conspiracy that the jury probably
would have acquitted on the conspiracy count had it been given a cautionary multiple-
conspiracy instruction.” United States v. Bartko, 728 F.3d 327, 345 (4th Cir. 2013)
(internal quotation marks omitted).
“We review a challenge to the sufficiency of the evidence de novo, and . . . must
sustain the verdict if there is substantial evidence, viewed in the light most favorable to
the government, to support it.” United States v. Bran, 776 F.3d 276, 279 (4th Cir. 2015)
(citations omitted). “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. Edlind, 887 F.3d 166, 172 (4th Cir. 2018)
(internal quotation marks omitted). “A defendant bringing a sufficiency challenge must
overcome a heavy burden,” as reversal is “confined to cases where the prosecution’s
7
failure is clear.” United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir. 2015)
(internal quotation marks omitted).
To prove the charged drug conspiracy, “the [G]overnment was required to
establish beyond a reasonable doubt that: (1) an agreement to distribute and possess
cocaine with intent to distribute existed between two or more persons; (2) the defendant
knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part
of this conspiracy.” United States v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011) (internal
quotation marks omitted). “A mere buyer-seller relationship is insufficient to support a
conspiracy conviction.” United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014).
However, “evidence of continuing relationships and repeated transactions can support the
finding that there was a conspiracy, especially when coupled with substantial quantities
of drugs.” United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008). “Additionally,
evidence of a defendant buying or selling a substantial quantity of drugs over a short
period of time is enough to raise an inference of a distribution conspiracy.” United States
v. Allen, 716 F.3d 98, 104 (4th Cir. 2013).
With respect to Cannon’s multiple conspiracy challenge, it is well settled that
“[w]hether there is a single conspiracy or multiple conspiracies depends upon the overlap
of key actors, methods, and goals.” United States v. Nunez, 432 F.3d 573, 578 (4th Cir.
2005). “A single conspiracy exists where there is one overall agreement, or one general
business venture.” United States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003) (internal
quotation marks omitted). The fact that the drug market involves “parallel suppliers, or
middlemen, or street dealers,” standing alone, is insufficient to prove the existence of a
8
single conspiracy. United States v. Harris, 39 F.3d 1262, 1267 (4th Cir. 1994). But a
single drug conspiracy exists if the defendant “was part of a loosely-knit association of
members linked only by their mutual interest in sustaining the overall enterprise of
catering to the ultimate demands of a particular drug consumption market.” Howard, 773
F.3d at 526 (internal quotation marks omitted).
We have thoroughly reviewed the record and find no error on these grounds. The
record amply supports Cannon’s involvement in a structured conspiracy involving
Antonio “Dollar Bill” Williams and the close associates who performed roles in Dollar
Bill’s drug organization. Cannon’s recorded phone calls with Dollar Bill and other
evidence of his repeated purchases of “seller” quantities demonstrated more than a mere
buyer-seller relationship. And although Dollar Bill and many of his close associates
ceased their participation in the conspiracy when they were arrested in 2011, Cannon
himself continued the original goal of the conspiracy—catering to the demands of drug
users in his specific geographic area—after Dollar Bill’s arrest.
Cannon argues that no evidence established an agreement between the alleged
coconspirators who participated before and after Dollar Bill’s arrest. But “one may be a
member of 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.”
Nunez, 432 F.3d at 578 (internal quotation marks omitted). Several witnesses testified
that Cannon effectively took over Dollar Bill’s role in the community as a primary
cocaine supplier to various members of the original conspiracy, using at least one of the
same middlemen that Dollar Bill previously employed. Cannon himself provided a
9
common bond between the loosely associated groups, which acted in pursuit of the same
overarching goal. In view of this evidence, we conclude the district court did not abuse
its discretion in denying a multiple conspiracy instruction, produced no fatal variance,
and did not err in denying Cannon’s motion for judgment of acquittal.
IV
Finally, Cannon challenges the district court’s imposition of a statutory
enhancement, Sentencing Guidelines enhancements, and criminal forfeiture based on
facts not submitted to the jury. 2 “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey,
530 U.S. 466, 490 (2000); see Alleyne v. United States, 570 U.S. 99, 103 (2013)
(applying Apprendi to facts increasing statutory mandatory minimum). Cannon’s
statutory sentencing enhancement was predicated solely on the court’s finding that he had
at least one qualifying prior felony drug conviction. See 21 U.S.C. §§ 841(b)(1)(B), 851
(2012). The fact of a prior conviction that increases the maximum penalty for crime need
not be submitted to a jury or proven beyond reasonable doubt. Almendarez-Torres v.
United States, 523 U.S. 224, 226 (1998); see United States v. Bullette, 854 F.3d 261, 264
n.2 (4th Cir. 2017) (Almendarez-Torres remains good law). Similarly, neither Cannon’s
2
Although Cannon identifies additional sentencing challenges when listing his
issues on appeal, he had forfeited appellate review of these issues by failing to develop
them in his briefs. See Bartko, 728 F.3d at 335 (recognizing that issue not raised in
opening brief is waived).
10
advisory Guidelines enhancements nor his criminal forfeiture violates Apprendi and its
progeny. See United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012); United States v.
Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).
V
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
11