United States v. Love ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5760
REX EUGENE LOVE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5825
JERRY WAYNE SHEPPARD,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-94-122-F)
Argued: October 27, 1997
Decided: January 20, 1998
Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and MERHIGE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Hamilton and Senior Judge Merhige joined.
_________________________________________________________________
COUNSEL
ARGUED: Michael Smith Scofield, Charlotte, North Carolina, for
Appellant Love; Alice Carson Stubbs, STUBBS, PAHL & PERDUE,
P.A., Raleigh, North Carolina, for Appellant Sheppard. Jane H. Jack-
son, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: Janice McKenzie Cole, United States Attor-
ney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Rex Love and Jerry Sheppard were convicted of conspiracy to pos-
sess with intent to distribute marijuana and cocaine in violation of 21
U.S.C. § 846. Love also was convicted of possession with intent to
distribute cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1).
Love and Sheppard appeal their convictions and sentences on several
grounds. They argue principally that the district court's method of
jury selection violated Fed. R. Crim. P. 24(c) and therefore consti-
tuted reversible error. Finding each of the defendants' contentions
without merit, we affirm the judgment of the district court.
I.
Love and Sheppard were members of a multimillion dollar mari-
juana and cocaine ring. The organization imported the drugs from
Mexico into Texas or Arizona and then transported them to North
Carolina for distribution. In its closing argument, the government esti-
mated that the conspiracy handled over 10,000 pounds of marijuana
and at least 200 kilograms of cocaine. Love aided in distributing the
drugs in North Carolina, employing others to unload large marijuana
shipments at different storehouses within the state. Sheppard served
as both a courier and enforcer for the organization. The evidence
showed that he helped transport drugs from Arizona to North Carolina
and, mainly, that he served as a hit man.
2
One coconspirator, Clyde Smith, testified at trial that Charles
Glenn Parker, another coconspirator, hired Sheppard to intimidate and
then arrange the assassination of two former associates. Parker feared
that the two men, Harry Gautier and Donald Ray Thompson, would
testify against him in his own state court trial. Parker first purchased
a car for Sheppard so that he could surveil Gautier and Thompson in
Goldsboro, North Carolina. Smith recalled that Parker told him that
ultimately Sheppard did go to Gautier's residence to kill him, but
failed in the effort because the gun would not fire. Gautier confirmed
that an attempt was made on his life. When asked why Parker chose
Sheppard to serve in this capacity, Smith testified, over the defense's
objection, that Parker had told him "that Jerry Sheppard had a prior
record for murder, that he had killed a rat and went to prison for it."
While in jail awaiting trial, Sheppard became friends with a federal
prisoner, Raeford Carr. Carr testified at trial that Sheppard spoke to
him on various occasions concerning his participation in the activities
of the conspiracy. According to Carr, Sheppard told him that he drove
to Arizona to transport marijuana, that he traveled to Arkansas to find
a lawyer for one of the organization's couriers, and that he partici-
pated in an attempted hit on a witness. Carr testified that he contacted
federal agents himself after having the above jailhouse conversations
with Sheppard.
The government originally filed an indictment in September 1994
against eleven members of the conspiracy, not including Love or
Sheppard. In January 1995, the government filed a superseding indict-
ment against twenty persons, including the eleven originally named
defendants and Love and Sheppard. Of the first eleven codefendants,
only two pled not guilty. Both were tried before a jury in a trial begin-
ning February 27, 1995, and both were convicted. Love and Sheppard
were tried in June 1995 in a separate trial with four other codefen-
dants, two of whom were fugitives at the time of trial. The jury found
Love and Sheppard guilty on the conspiracy charge, and found Love
guilty of possession with intent to distribute both marijuana and
cocaine. The jury further found a sum of $300,000 subject to criminal
forfeiture by Love, but not Sheppard. The court sentenced Love to
360 months in prison plus five years supervised release, and Sheppard
to 210 months plus five years supervised release.
3
II.
A.
The defendants' main contention is that the district court's failure
to follow Fed. R. Crim. P. 24(c) in selecting a jury constitutes revers-
ible error. Accordingly, some discussion of the background of this
trial and of the jury selection procedure used by the district court is
appropriate.
In a pretrial order, the district court found several extenuating fac-
tors requiring modification of traditional trial procedures. The district
court first noted that in the prior February 1995 trial, the organization
had been shown to be one with substantial financial resources and
members "who would not hesitate to use money or violence to com-
promise witness integrity." The court specifically referred to testi-
mony at the earlier trial that one of the codefendants there had
intimidated a potential witness in a related state matter. The court also
cited allegations concerning the murder of a witness in a related mat-
ter in another state, the attempted murder of a witness in a related
North Carolina matter, and threats made against codefendants and
their families, including the detonation of a pipe bomb at the home
of a codefendant who testified for the government at the February
trial. Finally, the court observed that two of the codefendants in the
present case remained fugitives, one of whom was classified as
"armed and dangerous." The district court therefore concluded: "The
circumstances surrounding the trial, as evidenced above, have given
rise to a serious potential threat to the integrity of the judicial process
and to the safety of witnesses, jurors, court personnel and spectators."
Accordingly, the district court established trial parameters designed
to respond to the potential security threats. The court specifically
chose to employ a special jury selection procedure. The court impa-
nelled an eighteen-person jury to hear the evidence in the case. At the
close of evidence and prior to the start of deliberations, each side
would eliminate three jurors by random draw, thereby leaving a regu-
lar jury of twelve to deliberate. Because of the unique procedure, the
court assembled a larger-than-normal venire panel and allowed each
side more peremptory challenges than legally mandated. The govern-
ment received twelve challenges, twice as many as required, and each
4
defendant received four challenges for a total of twenty-four, fourteen
more than required.
Although acknowledging that its chosen procedure deviated from
Rule 24(c), the district court reasoned that the special circumstances
of this trial made the departure appropriate and conferred certain ben-
efits. First, because of the anticipated length of the trial, waiting to
designate alternates until the close of evidence would ensure that
every juror would be more attentive throughout the trial. Second, the
judge explained that the selection method minimized the threat of jury
intimidation by requiring an interested party to target a greater num-
ber of jurors in order to affect just one who would ultimately deliber-
ate. The district court also noted that the same procedure had been
utilized without objection in the prior February trial. The defendants
objected, however, to the chosen procedure before the instant trial.
B.
Defendants contend that the district court's failure to follow Fed.
R. Crim. P. 24(c) requires reversal. More specifically, the defendants
claim that the jury selection procedure employed here precluded the
effective use of their peremptory challenges. Because it was impossi-
ble to know whether a juror would ultimately deliberate, defendants
argue that the procedure forced them to waste their challenges.
Rule 24(c) provides, in part:
The court may direct that not more than 6 jurors in addition
to the regular jury be called and impanelled to sit as alter-
nate jurors. Alternate jurors in the order in which they are
called shall replace jurors who, prior to the time the jury
retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties.
The district court's jury selection procedure varied from Rule 24(c)
in at least two respects. First, the rule authorizes the calling of addi-
tional jurors only "in addition to the regular jury" and designated "as
alternate jurors." Here, the district court impanelled eighteen jurors,
none of whom were designated as regulars or alternates until just
5
prior to deliberations. Second, the rule requires that alternate jurors
replace regular jurors "in the order in which they are called." There-
fore, the last six persons placed on the jury of eighteen should have
been discharged prior to deliberations as unnecessary alternates,
rather than six determined by lot.
We cannot endorse or encourage the use of procedures that violate
the Federal Rules. Rule 24(c) "represents a national consensus of
bench and bar and ought not to be disturbed." United States v. Viserto,
596 F.2d 531, 540 (2d Cir. 1979). Therefore, we join our sister cir-
cuits in "encouraging strict adherence" to Rule 24(c). United States v.
Sivils, 960 F.2d 587, 594 (6th Cir. 1992); see also United States v.
Aguon, 851 F.2d 1158, 1171 (9th Cir. 1988) (en banc), overruled on
other grounds by Evans v. United States, 504 U.S. 255 (1992);
Viserto, 596 F.2d at 540. However, like those courts, we recognize
that under Rule 52(a) we must disregard errors which do not "affect
substantial rights." Fed. R. Crim. P. 52(a); see Sivils, 960 F.2d at 593-
94; Aguon, 851 F.2d at 1171. "Not every violation of Rule 24 calls
for reversal. Reversal is in order only where the irregularity affects
substantial rights." United States v. Levesque, 681 F.2d 75, 80 (1st
Cir. 1982) (citing Fed. R. Crim. P. 52). To determine whether a devia-
tion from Rule 24(c) affects substantial rights, we must ask whether
Love and Sheppard actually were prejudiced by the jury selection pro-
cedure utilized here. United States v. Quiroz-Cortez, 960 F.2d 418,
420-21 (5th Cir. 1992); Sivils, 960 F.2d at 593; Aguon, 851 F.2d at
1171; United States v. Reed, 790 F.2d 208, 210 (2d Cir. 1986); United
States v. Josefik, 753 F.2d 585, 587 (7th Cir. 1985); United States v.
Balk, 706 F.2d 1056, 1059 (9th Cir. 1983); United States v. Phillips,
664 F.2d 971, 993-96 (5th Cir. Unit B Dec. 1981). Because we dis-
cern no prejudice to Love or Sheppard from the district court's jury
selection procedures, we find the Rule 24(c) violation does not neces-
sitate a new trial.1
Initially, we believe that the procedural precautions taken by the
district court prevented any prejudice that might have resulted from
_________________________________________________________________
1 We note that this violation of Rule 24(c) does not involve an alter-
nate's presence during jury deliberations which breached the secrecy and
privacy of the deliberative process. Cf. United States v. Virginia Erection
Corp., 335 F.2d 868, 869-72 (4th Cir. 1964).
6
the use of the eighteen-juror panel. Although the defendants jointly
were entitled to only ten peremptory challenges under Fed. R. Crim.
P. 24(b), the court instead gave them a total of twenty-four chal-
lenges. From a practical standpoint, this ample number allowed the
defendants to remove the jurors perceived to be most objectionable
and thereby leave a panel of eighteen acceptable jurors in the box. In
United States v. Broadus, 7 F.3d 460, 462 (6th Cir. 1993), the district
court seated fourteen jurors to hear the case and just prior to delibera-
tions "drew two who then became alternates." The Sixth Circuit
affirmed, despite the fact that the district court did not give the defen-
dant any additional peremptory challenges. Id. at 462-63. In contrast,
in the present case, the district court gave the defendants over twice
the number of challenges to which they were legally entitled. We con-
clude that the extra peremptories bestowed by the district court here
adequately cured any potential error.
Furthermore, this was not a case where defendants were forced by
the jury selection procedure to strike blindly, without knowing
whether persons had even a remote possibility of hearing the evidence
or deliberating. The defendants knew that every juror against whom
they did not exercise a peremptory challenge, and thereby left in the
box, would hear the trial evidence and more likely than not would
deliberate. Every peremptory challenge utilized by the defense actu-
ally prevented the person challenged from hearing the evidence at
trial and from deliberating thereafter. Thus, it cannot be said that
defendants "wasted" their peremptory challenges. It is difficult to dis-
cern any scenario in which the defendants could have been preju-
diced. See, e.g., United States v. Olano , 62 F.3d 1180, 1190 n.3 (9th
Cir. 1995), cert. denied, 117 S. Ct. 303 (1996).2
_________________________________________________________________
2 Love and Sheppard also argue that, under United States v. Ricks, 802
F.2d 731 (4th Cir. 1986) (en banc), their right to exercise peremptory
challenges was substantially impaired and that Ricks therefore requires
reversal per se. The jury selection procedure employed in Ricks, how-
ever, was decidedly different from that employed by the district court
here. In Ricks, the district court selected the jury from among fifty-seven
venirepersons left after challenges for cause, allocated twelve peremp-
tory challenges to the defendants and six to the government to be used
against regular jurors, and employed a "struck jury" selection method.
The district court did not inform counsel which portion of the exces-
7
The district court's evenhanded treatment of the government and
the defendants also persuades us that Love and Sheppard were not
prejudiced by the Rule 24(c) violation. To be prejudicial, the error
must have affected the outcome of the trial proceedings. United States
v. Ince, 21 F.3d 576, 582-83 (4th Cir. 1994). Accordingly, the proce-
dures must have harmed the defendants in a way that would have
been avoided had the court followed Rule 24(c)'s strictures. But here,
the government was not accorded any advantage with respect to the
jury selection method: it received an additional six peremptory chal-
lenges to the defendants' additional fourteen. Because the government
had no greater power to shape the eventual jury than did the defen-
dants, we find no prejudice. See Balk, 706 F.2d at 1059 (permitting
government additional challenge held not prejudicial because defen-
dants received three extra peremptories).
Finally, we note that our conclusion conforms with that reached by
other circuits considering similar Rule 24(c) violations. In United
States v. Sivils, the district court impanelled fourteen jurors to hear the
entire case, designating two alternates only at the conclusion of the
trial and prior to deliberations. 960 F.2d at 593. As in the present
case, the district court in Sivils selected the alternates to be discharged
at the close of evidence by random draw. Because the potential preju-
dice was, as here, of an entirely speculative nature, the court found
the error to be harmless. Id. at 594. Other circuits reviewing similar
_________________________________________________________________
sively long list would be used to select the final jury, thereby causing
defendants to exercise strikes against jurors who never would have sat
or deliberated. It was the combination of these factors that led the court
to conclude that defendant's right to peremptory challenges had been
impermissibly diluted.
These factors simply are not present here. The district judge explained
the jury selection procedure in accurate terms, in advance of trial. The
district court also utilized the "jury box" method. As the court explained
in Ricks, "When the ``jury box' method of selection is used, a party
knows that each time he strikes a venireman sitting in the box, he is
assured of removing someone from the panel who otherwise would serve
as a juror." Id. at 733. Unlike in Ricks, every strike here removed some-
one who would otherwise hear the evidence and more likely than not
deliberate.
8
procedures adopted by trial courts also have found the violations
therein to be harmless error. See United States v. Olano, 62 F.3d at
1190 n.3 (waiting to designate alternates until just prior to delibera-
tions is harmless error); Broadus, 7 F.3d at 462-63 (waiting to desig-
nate alternates until just prior to deliberations not plain error even
when judge allocated no extra peremptories); Aguon, 851 F.2d at
1171 (waiting to designate and discharge alternates until just prior to
deliberations is harmless error); Levesque, 681 F.2d at 80-81 (assign-
ing alternate to become regular juror out of order does not require
reversal). We too find any prejudice in the present case to be at best
speculative and in all events neutralized by the district court's even-
handed allocation of extra peremptory challenges to both sides.
III.
Sheppard argues that the district court erred by allowing Clyde
Smith to testify that Charles Glenn Parker told him"that Jerry Shep-
pard had a prior record for murder, that he had killed a rat and went
to prison for it." Sheppard contends that the district court should have
excluded Smith's testimony because its probative value was "substan-
tially outweighed by the danger of unfair prejudice." Fed. R. Evid.
403. He claims that this is especially true because he had never been
convicted of murder.
We disagree. Rule 403 judgments are preeminently the province of
the trial courts. We thus review a district court's admission of evi-
dence over a Rule 403 objection under a "broadly deferential stan-
dard." United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990).
"We will not upset such a decision except under the most extraordi-
nary of circumstances, where [a trial court's] discretion has been
plainly abused." Id. (internal quotation marks omitted). Furthermore,
when reviewing such trial court decisions, we must examine the evi-
dence in the "``light most favorable to its proponent, maximizing its
probative value and minimizing its prejudicial effect.'" Id. (citation
omitted).
Smith's testimony was clearly probative of Sheppard's cooperation
in the conspiracy. Questions of central importance at trial were
whether and how Sheppard became a member of the organization. As
part of its case, the government sought to prove that Parker solicited
9
the assistance of Sheppard as an enforcer. To make a compelling case,
the government naturally needed to explain why Parker would hire
Sheppard to serve in such a capacity. Smith's recollection of Parker's
own account of the exact reasons he hired Sheppard as a hit man
enabled the jury to understand Parker's motivation. Keeping in mind
the deferential standard under which we review the district court, we
do not find that the danger of unfair prejudice to Sheppard substan-
tially outweighed the statement's obvious probative value.
Even if Smith's testimony had the potential to prejudice Sheppard,
the district court's cautionary instruction rendered the error harmless.
Immediately after Smith testified about Parker's statement, the district
court instructed the jury, in part: "Now, members of the jury, there's
no evidence in the case one way or the other whether or not the con-
duct commented upon by Parker was true or not true. It's offered as
an explanation of why he took certain action." The Federal Rules of
Evidence specifically instruct judges to consider the effectiveness of
a limiting instruction when deciding whether to exclude evidence on
grounds of unfair prejudice. Fed. R. Evid. 403 advisory committee's
note. Here the district court prudently cautioned the jury that no evi-
dence showed that Sheppard in fact had committed a prior murder.
We generally presume that a jury will follow cautionary instructions
regarding potentially prejudicial evidence. United States v. Johnson,
114 F.3d 435, 444 (4th Cir.), cert. denied, 118 S. Ct. 257 (1997).
Sheppard also asserts that Smith's testimony was inadmissible
"other crimes" evidence under Fed. R. Evid. 404(b). Of course, Rule
404(b) only makes such evidence inadmissible "to prove the character
of a person in order to show action in conformity therewith." Our
holding that Smith's testimony was probative of Parker's reasons for
inviting Sheppard within the folds of the conspiracy, therefore, fore-
closes Sheppard's argument under Rule 404(b). The testimony was
not admitted to prove action in conformity with Sheppard's prior
criminal character. Smith's testimony was necessary to inform the
jury of the context of Sheppard's participation in the conspiracy and,
thus, to complete the story presented by the government at trial. We
have not considered evidence admitted for this purpose to be other
crimes evidence precluded by Rule 404(b). United States v. Kennedy,
32 F.3d 876, 885-86 (4th Cir. 1994). We hold, in sum, that the district
court did not err by permitting Smith's testimony.
10
IV.
Sheppard next argues that the district court erred by permitting
Raeford Carr to testify about statements Sheppard made to him while
the two were incarcerated together. He claims that the government
intentionally placed Carr in the same cell block to induce Sheppard
to make an incriminating statement concerning the conspiracy charge
for which he had already been indicted. Relying on Massiah v. United
States, 377 U.S. 201 (1964), Sheppard maintains that the admission
at trial of his post-indictment jailhouse confessions violated his Sixth
Amendment right to counsel.
We disagree. A criminal defendant's Sixth Amendment right to
counsel is violated when incriminating statements"deliberately elic-
ited" by the government, made after indictment and outside the pres-
ence of counsel, are admitted against the defendant at trial. Massiah,
377 U.S. at 206; see also United States v. Henry , 447 U.S. 264, 270
(1980). The role of the government in the deliberate elicitation of
such statements is of crucial importance, for "the Sixth Amendment
is not violated whenever -- by luck or happenstance -- the State
obtains incriminating statements from the accused after the right to
counsel has attached." Maine v. Moulton, 474 U.S. 159, 176 (1985);
see also Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986).
Because no evidence shows that Carr acted on behalf of the gov-
ernment when listening to Sheppard's jailhouse confessions, the Sixth
Amendment claim is meritless. Although Carr had previously cooper-
ated with the government in a separate case, no evidence showed that
such cooperation extended in any manner to the investigation of
Sheppard. Nor did any evidence support Sheppard's allegation that
the government intentionally placed Carr in his cell block. When Carr
spoke with Sheppard in jail, he had not received any instructions from
the government. Carr also was not paid for providing information
concerning Sheppard. We have rejected past defendants' Sixth
Amendment claims when these crucial indicia of government cooper-
ation are lacking. Harker v. Maryland, 800 F.2d 437, 445 (4th Cir.
1986).
The initiative here was that of Carr. The record indicates that Carr
contacted federal agents himself after Sheppard made the relevant
11
incriminating statements. The behavior of an informant who initiates
contact with an indicted defendant -- whether because of conscience,
curiosity, or even potentially to curry an unpromised future favor
from the government -- cannot be attributed to the government.
Thomas v. Cox, 708 F.2d 132, 136 (4th Cir. 1983). Accordingly,
Sheppard's Sixth Amendment claim is rejected.
V.
Love and Sheppard next object to the absence of the district judge
during portions of the trial's closing arguments. Prior to both sides'
arguments, the judge told the jury that he would on occasion be in his
chambers, working on other matters, but at all times would be avail-
able to rule on objections that might be presented by the attorneys.
The record on appeal discloses no objections by either side. Relying
on Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995), defendants contend
that the judge's absence constitutes structural error and is therefore
reversible per se.
While we do not condone the absence of the trial judge from any
phase of the trial proceeding, we reject defendants' attempt to charac-
terize the district judge's absence here as structural error. The Riley
court did not hold that the absence of the judge alone would constitute
structural error. Id. at 1120. The court instead rested its holding on the
fact that the trial judge there was not only physically absent from the
courtroom; he did not even make the decision to permit relevant testi-
mony to be read back to the jury or delineate which portions thereof
should be presented to it. Id. All of the above functions were instead
carried out by the judge's law clerk, as the judge could not be located.
"Suffice it to say that in this case there was a complete abdication of
judicial control over the process." Id. at 1121. Those circumstances
were not present in defendants' trial. While absent from the court-
room during portions of the closing argument, the district judge was
in his chambers and available to exercise his discretion with respect
to objections made by either side.
Because defendants failed to object below, we must determine
whether the district judge's absence here was plain error that resulted
in prejudice to Love or Sheppard. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 732 (1993); United States v. Grant, 52
12
F.3d 448, 449 (2d Cir. 1995). Any error here was harmless. Defen-
dants have not pointed to any specific comments made in the district
judge's absence that affected the trial's fairness. See Heflin v. United
States, 125 F.2d 700, 701 (5th Cir. 1942). Love and Sheppard allege
only that the absence of the judge might give the jury the impression
that the judge had already made up his own mind. A showing of prej-
udice cannot be based on such speculation. It appears that the judge
left the courtroom during both sides' closing arguments, making it
impossible for the jury to discern which side the judge prematurely
favored. Finally, the judge explained to the jury why he would leave
the courtroom -- to work on jury instructions or conduct other busi-
ness. This explanation should have dispelled any potential perception
by jurors that the judge left because he had already been persuaded
by the government's case. Because defendants have failed to demon-
strate prejudice, the judgments of conviction must be sustained.
VI.
Defendants next contend that the district court erred in determining
their sentences under the Guidelines.
A.
Love and Sheppard both argue that the district court incorrectly
determined their base offense levels by holding them responsible for
drug amounts inconsistent with the jury's criminal forfeiture verdicts.
Love received a base offense level of 36 based on his responsibility
for a marijuana equivalency of 11,125.529 kilograms, and Sheppard
received a base offense level of 28 based on responsibility for 544.32
kilograms of marijuana. See U.S.S.G. § 2D1.1(c). Defendants, how-
ever, working backwards from the jury's criminal forfeiture verdicts
of $300,000 for Love and $0 for Sheppard, calculate approximate
drug amounts the jury must have believed each was responsible for
within the conspiracy. The defendants contend that the district court
was legally precluded from basing its section 2D1.1(c) determination
on any amount beyond that implicitly reflected in the forfeiture judg-
ments.
We disagree. The district court has a separate obligation, which it
carried out here, to make independent factual findings regarding rele-
13
vant conduct for sentencing purposes. See U.S.S.G. § 1B1.3. In
United States v. Watts, 117 S. Ct. 633 (1997) (per curiam), the
Supreme Court reaffirmed that district judges should have "``the ful-
lest information possible concerning the defendant's life and charac-
teristics'" when selecting an appropriate sentence. Id. at 635 (quoting
Williams v. New York, 337 U.S. 241, 247 (1949)). The Court based
its decision, in part, on 18 U.S.C. § 3661, which states: "No limitation
shall be placed on the information concerning the background, char-
acter, and conduct of a person convicted of an offense which a court
of the United States may receive and consider for the purpose of
imposing an appropriate sentence."
The defendants' attempt to impose the forfeiture verdicts as artifi-
cial limitations on the district judge's sentencing discretion turns 18
U.S.C. § 3661 on its head. When presented with the criminal forfei-
ture count, the jury simply was not asked to make independent find-
ings of the specific drug amounts for which each defendant should be
held responsible. The different routes by which the jury could have
reached its verdicts are almost limitless. Even Love's attorney admit-
ted the impossibility of interpreting the jury verdicts when he stated
during the sentencing hearing: "It's true that there's no way of telling
exactly how much drugs they held him [Love] responsible for." Here,
the district court appropriately fulfilled its obligation by considering
the full range of information presented in the defendants' presentence
reports, the objections thereto, and argument presented during indi-
vidual sentencing hearings.
As an appellate court, our role is only to review the district court's
factual findings for clear error. United States v. Nelson, 6 F.3d 1049,
1055 (4th Cir. 1993). We do not attempt to harmonize a district
court's factual findings during sentencing with the accompanying jury
verdict. The Supreme Court has offered guidance to appellate courts
in this respect. First, the Court has indicated that jury verdicts need
not be squared with the relevant conduct considered by judges during
sentencing. In Watts, the Court held that even acquitted conduct may
be considered in the determination of the proper offense level. 117 S.
Ct. at 638. Second, in United States v. Powell , 469 U.S. 57, 68-69
(1984), the Court held that jury verdicts are not reviewable for inter-
nal inconsistency. In that decision, the Court noted that a criminal
defendant is already protected from such inconsistency "by the inde-
14
pendent review of the sufficiency of the evidence undertaken by the
trial and appellate courts." Id. at 67. Similarly, here defendants are
protected against any seeming inconsistency between the relevant
conduct considered for sentencing purposes and the jury verdicts by
our review of the district judge's independent factual findings.
Applying the proper standard of review, we find no clear error in
the district court's findings on the drug amounts for which each
defendant was responsible. Each presentence report carefully outlined
the bases for its conclusions, citing specific instances of drug activity
and the weights of drugs involved on each occasion. Only Love
objected to his presentence report's determination of the drug amount
and neither defendant presented evidence contradicting the reports'
conclusions. "A mere objection to the finding in the presentence
report is not sufficient. . . . Without an affirmative showing the infor-
mation is inaccurate, the court is ``free to adopt the findings of the
[presentence report] without more specific inquiry or explanation.'"
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (citation
omitted). In light of the impossibility of distilling conclusions on drug
amounts from the jury's forfeiture verdicts, and because of the sub-
stantial evidence presented as to drug amounts in the presentence
reports, we hold that the district court's determinations of the defen-
dants' base offense levels must be sustained.
B.
1.
Sheppard raises several additional challenges to his sentence on
appeal. First, he argues that the district court erred by refusing to
decrease his offense level by two to four levels for his role as a minor
or minimal participant. He specifically contends that the jury's failure
to find him subject to criminal forfeiture proves he is less culpable
than his codefendants.
Sheppard's argument is meritless. We review a district court's
determination of a defendant's role in an offense for clear error.
United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). A
minimal participant, who is accorded a four level reduction, is one
who is "plainly among the least culpable of those involved in the con-
15
duct of a group." U.S.S.G. § 3B1.2 Application Note 1. An example
of a minimal participant in a drug operation would be "someone who
played no other role in a very large drug smuggling operation than to
offload part of a single marihuana shipment." Id. § 3B1.2 Application
Note 2. It is preposterous to claim that Sheppard-- who not only
transported drugs from Arizona to North Carolina, but who most
importantly surveilled and arranged the assassination of potential
adverse witnesses -- is analogous to a person who once helps unload
part of a drug shipment. The Guidelines further define a minor partici-
pant, who is accorded a two level reduction, as"any participant who
is less culpable than most other participants, but whose role could not
be described as minimal." Id. § 3B1.2 Application Note 3. The Intro-
ductory Commentary to section 3B1.1 states that the determination of
a defendant's role must be made on the basis of all relevant conduct.
Thus, whether or not the jury found Sheppard subject to criminal for-
feiture is irrelevant to this determination. Again, on the basis of the
relevant conduct, we do not agree that a defendant hired to commit
murder -- more specifically, the murder of potential witnesses against
the conspiracy -- is "less culpable than most other participants." We
therefore find no error in the district court's refusal to decrease Shep-
pard's offense level.
2.
Sheppard next contends that the district court erred by increasing
his offense level two levels pursuant to section 2D1.1(b)(1) for pos-
session of a firearm, and two further levels pursuant to section 3C1.1
for obstruction of justice. He argues that both findings were supported
only by unreliable hearsay -- the statements of his coconspirators.
Because Sheppard's argument raises only a factual question, we again
review for clear error. United States v. Puckett , 61 F.3d 1092, 1095
(4th Cir. 1995); Daughtrey, 874 F.2d at 218.
Preliminarily, there is no bar to the use of hearsay in sentencing.
"United States courts have a long history of using reliable hearsay for
sentencing. ``[T]he trial court may properly consider uncorroborated
hearsay evidence that the defendant has had an opportunity to rebut
or explain.'" Terry, 916 F.2d at 160-61 (citation omitted). Further-
more, the statements of his coconspirators were admitted properly as
non-hearsay under Fed. R. Evid. 801(d)(2)(E) because they constitute
statements "by a coconspirator of a party during the course and in fur-
16
therance of the conspiracy." This evidence therefore is deemed reli-
able under the Federal Rules, so we reject Sheppard's after-the-fact
challenge to its use in his sentencing. Finally, Sheppard's own confes-
sions to Carr confirm his coconspirators' statements. Carr testified
that Sheppard told him that he went with an associate to kill Gautier
at his house, but that the automatic rifle in their possession jammed.
In light of the substantial trial evidence and Sheppard's failure to
make any showing that he did not possess a gun or obstruct justice
in a variety of ways, see Terry, 916 F.2d at 162, we affirm the district
court's increase of two levels for each factor.
3.
Sheppard last raises several objections to the determination of his
criminal history. He first argues that the district court erred by adding
one criminal history point for a worthless check charge, identified in
the presentence report, that he claims was dismissed. See U.S.S.G.
§ 4A1.1(c). Sheppard, however, failed to produce any evidence that
this charge was dismissed other than to argue that no sentence of
imprisonment or probation is recorded with respect to the charge.
Because the defendant failed to make any showing of the alleged dis-
missal of this charge, the district court was correct to rely on the pre-
sentence report. Terry, 916 F.2d at 162.
Sheppard next asserts that the district court erred in calculating his
criminal history in other respects under section 4A1.1. The presen-
tence report shows that Sheppard was convicted on June 16, 1972, for
five robberies committed on separate occasions. Because these
offenses were consolidated for sentencing, they were considered
related under section 4A1.2(a)(2). See U.S.S.G. § 4A1.2 Application
Note 3. Pursuant to section 4A1.1(a), the court therefore first added
three points for the consolidated sentences for the five robberies. The
court then added one criminal history point for each of three of the
five robberies pursuant to section 4A1.1(f). That section instructs
courts to add a criminal history point, up to three points, for each
prior sentence resulting from a crime of violence that does not receive
a point under section 4A1.1(a) because the sentences are considered
related.
Sheppard first contends that the district court erred by adding the
three criminal history points for the consolidated sentences. He claims
that the robbery conviction on which the three points were based actu-
17
ally expired in 1977 and that the remaining time he served in prison
was based on the other convictions. Sheppard's argument is meritless,
both factually and legally. First, the presentence report indicates that
the sentence on the specific conviction charge was for ten years,
which would cause it to expire in 1982, not 1977. Under section
4A1.2(e)(1), Sheppard's incarceration as late as 1982 would be
"within fifteen years of the defendant's commencement of the instant
offense" and therefore would be counted. Second, as explained
before, Sheppard's five June 16, 1972 convictions are considered
related pursuant to section 4A1.2(a)(2). That section specifically
instructs the district court to "[u]se the longest sentence of imprison-
ment if concurrent sentences were imposed and the aggregate sen-
tence of imprisonment imposed in the case of consecutive sentences."
Because Sheppard was not paroled until June 9, 1989 on the related
convictions, he was incarcerated within fifteen years of the com-
mencement of his instant conspiracy offense, and therefore the sen-
tence is counted in his criminal history calculation. The district
court's determination was therefore legally correct.
Sheppard next asserts that the district court erred by adding one
criminal history point each, pursuant to section 4A1.1(f), for three of
the June 16, 1972 robbery convictions because they were related.
Sheppard misunderstands the relevant guideline. Section 4A1.1(f)
instructs the court to add the criminal history points, in part, because
the sentences are considered related. The only exception to this rule
applies if the sentences are considered related"because the offenses
occurred on the same occasion." Id.§ 4A1.1(f) (emphasis added).
Although Sheppard's sentences with respect to his five robberies were
considered related, they were not deemed related under the Guidelines
because they occurred on the same occasion. In fact, the presentence
report clearly indicates that each robbery occurred on a separate date.
Therefore, the court's addition of one point each for three of the rob-
beries consolidated for sentencing was legally correct.
VII.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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