United States v. Wackman ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS J. WACKMAN, a/k/a Reef,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:06-cr-00427-WDQ-5)
Submitted: December 3, 2009 Decided: January 4, 2010
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C.,
for Appellant. Rod J. Rosenstein, United States Attorney,
Michael C. Hanlon, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas J. Wackman timely appeals the district court’s
judgment following a jury trial on one count of conspiracy to
distribute and possession with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 846 (2006). On appeal,
Wackman argues that: (1) the district court erred in denying his
motion for a mistrial; (2) the district court erred in admitting
hearsay testimony and evidence based on hearsay; and (3) the
district court erred in enhancing his sentence. Finding no
reversible error, we affirm.
I.
Wackman first argues that the district court erred in
denying his motion for a mistrial on the basis that the
Government improperly vouched for a cooperating witness’s
credibility. We review the district court’s denial of a motion
for mistrial for abuse of discretion. United States v. Wallace,
515 F.3d 327, 330 (4th Cir. 2008). The district court’s denial
“will be disturbed only under the most extraordinary of
circumstances.” United States v. Dorlouis, 107 F.3d 248, 257
(4th Cir. 1997).
The first step in analyzing an improper vouching claim
is determining “whether the comments made in fact constituted
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vouching.” United States v. Sanchez, 118 F.3d 192, 198 (4th
Cir. 1997).
Vouching occurs when the prosecutor indicates a
personal belief in the credibility or honesty of a
witness. [P]resenting evidence on a witness’
obligation to testify truthfully pursuant to an
agreement with the government and arguing that this
gives the witness a strong motivation to tell the
truth is not, by itself, improper vouching. Reference
to a plea agreement becomes impermissible vouching
only when the prosecutors explicitly or implicitly
indicate that they can monitor and accurately verify
the truthfulness of the witness’ testimony.
United States v. Jones, 471 F.3d 535, 543 (4th Cir. 2006)
(alteration in original) (internal quotation marks and citations
omitted).
During the witness’s testimony, the prosecutor
questioned the witness about her understanding of her plea
agreement. The prosecutor then asked whether the witness had
met with the agents and prosecutor involved in the case and
whether she was given any money or anything of value during the
meetings. At this point, Wackman’s counsel moved for a
mistrial, arguing that the Government improperly vouched for the
witness’s credibility by inference. The district court denied
Wackman’s motion. We find that the district court did not abuse
its discretion in denying Wackman’s motion. The prosecutor’s
questions did not suggest any personal belief about the
witness’s credibility nor did the prosecutor imply that the
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Government could monitor and verify her truthfulness. In short,
the prosecutor’s questions simply did not constitute vouching.
II.
Wackman next contends that the district court
improperly allowed hearsay testimony and evidence based upon
hearsay. Because Wackman did not object to the testimony or the
physical evidence at trial, we review their admission for plain
error. United States v. Perkins, 470 F.3d 150, 155 (4th Cir.
2006). To demonstrate plain error, a defendant must show that:
(1) there was an error; (2) the error was plain; and (3) the
error affected his “substantial rights,” meaning that it
“affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993). We are not
required to correct a plain error unless “a miscarriage of
justice would otherwise result,” meaning that “the error
seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 736 (alteration in
original) (internal quotation marks omitted).
Wackman first argues that Officer Scott Doyle’s
testimony regarding what led him to obtain a search warrant of
Apartment 4 at 506 West John Street (“John Street apartment”)
was hearsay. Hearsay, an out of court statement “offered in
evidence to prove the truth of the matter asserted,” is
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generally not admissible in federal court. Fed. R. Evid.
801(c), 802. “However, an out of court statement is not hearsay
if it is offered for the limited purpose of explaining why a
government investigation was undertaken.” United States v.
Love, 767 F.2d 1052, 1063 (4th Cir. 1985).
Officer Doyle testified that he obtained a search
warrant for the John Street apartment based on a call from the
apartment’s landlord, in which the landlord reported that he
found marijuana in plain view when serving an eviction notice.
We find that Officer Doyle’s testimony regarding the landlord’s
report was not offered to prove that the landlord in fact found
marijuana in the apartment, but was offered to explain how
Officer Doyle learned of the apartment and the basis for the
search warrant. Therefore, Officer Doyle’s testimony was not
hearsay and the district court did not err, much less plainly
err, in admitting the testimony.
Wackman also argues that Officer Doyle’s testimony
about the eviction was hearsay, as was his testimony regarding
the renter of the John Street apartment. We find that Officer
Doyle’s testimony that the landlord was evicting the John Street
apartment’s occupants was not offered to prove that the
occupants were being evicted and was thus not hearsay. With
regard to the renter of the John Street apartment, Officer Doyle
testified that Antonio Johnson was listed as the renter on the
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lease and that he “had been told from several people that they
believed Antonio Johnson was, in fact, Mr. Wackman.” Although
it appears that the Government offered the statement for the
truth of the matter asserted – that Wackman was Antonio Johnson,
renter of the John Street apartment – we conclude that the
admission of this statement did not affect Wackman’s substantial
rights, as there was other admissible evidence connecting
Wackman to the John Street apartment.
Finally, Wackman argues that Exhibit 10, ammunition
found in the John Street apartment, was admitted through hearsay
because Officer Doyle explained that a portion of the ammunition
was found in the John Street apartment by the landlord.
Specifically, Officer Doyle testified that Exhibit 10 contained
“magazines with rounds in them that were located in the
residence [during the execution of the search warrant], as well
as ammunition that was found in the residence, and some
ammunition that had been brought to us the following day that
was located.” Officer Doyle further testified that the
ammunition brought to the police the day after the search
warrant was executed was found by the landlord while working on
the apartment. Even if Officer Doyle’s explanation that a
portion of the ammunition included in Exhibit 10 had been found
in the apartment by the landlord constituted hearsay, we find no
reversible error, particularly under a plain error standard of
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review. Simply stated, Wackman’s substantial rights were not
infringed because the ammunition turned over to the police by
the landlord was simply cumulative of the other ammunition and
weapons previously located by the police during their search
pursuant to a valid warrant.
III.
Lastly, Wackman argues that the district court
erroneously enhanced his sentence two levels, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2007).
Generally, “[a] district court’s findings regarding sentence
enhancement are factual in nature and are reviewed only for
clear error.” United States v. Carter, 300 F.3d 415, 426 (4th
Cir. 2002). However, because Wackman failed to object to the
enhancement in the district court, this court reviews for plain
error. United States v. Wells, 163 F.3d 889, 900 (4th Cir.
1998).
Pursuant to USSG § 2D1.1(b)(1), a two-level
enhancement is warranted if a dangerous weapon was possessed
during the conspiracy. The enhancement “should be applied if
the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1, cmt. n.3.
Wackman contends that there was not a sufficient nexus between
himself and the John Street apartment where the weapons and
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ammunition were found to justify the enhancement. However,
testimony from a cooperating witness established that Wackman
possessed a gun during their travels between New York and
Maryland to pick up drugs. Wackman did not introduce any
evidence that it was clearly improbable that the gun was
connected to his drug activity. Therefore, we find that the
district court did not err in enhancing Wackman’s sentence.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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