United States v. Talib , 347 F. App'x 934 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4288
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YAYAH TALIB,
Defendant – Appellant.
No. 08-4353
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE SANTIAGO,
Defendant – Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:07-cr-00003-jpj-1; 2:07-cr-00003-jpj-4)
Submitted: September 28, 2009 Decided: October 16, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia; Gregory M. Kallen, Big Stone Gap,
Virginia, for Appellants. Julia C. Dudley, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This appeal arises out of a multi-member conspiracy to
possess and distribute heroin in the United States Penitentiary
in Lee County, Virginia (“USP-Lee”). Defendants Yayah Talib and
Jose Santiago were convicted after a joint jury trial for
conspiracy to distribute heroin, in violation of 21 U.S.C.
§§ 841(b)(1)(C), 846 (2006), and conspiracy to provide and
possess contraband in prison, in violation of 18 U.S.C. § 371(2006). The court sentenced both Defendants to 262 months in
prison. Defendants filed a consolidated appeal in which they
assert, either collectively or individually, that the district
court: (i) erred when it denied their motions for a new trial
and for judgments of acquittal; (ii) made erroneous evidentiary
holdings; and (iii) erred when it classified them as career
offenders. Finding no error, we affirm.
I. Denial of Motions for a New Trial or for Judgments of
Acquittal
This court reviews de novo the denial of a Fed. R.
Crim. P. 29 motion for judgment of acquittal, and reviews the
denial of a Fed. R. Crim. P. 33 motion for abuse of discretion.
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (Rule
29 motion); United States v. Perry, 335 F.3d 316, 320 (4th Cir.
2003) (Rule 33 motion). A district court may only grant a
3
defendant’s motion for a new trial “if the interest of justice
so requires.” Fed. R. Crim. P. 33(a). A district court is
required to “exercise its discretion to grant a new trial
sparingly, and . . . should do so only when the evidence weighs
heavily against the verdict.” Perry, 335 F.3d at 320 (internal
quotation marks omitted).
Talib asserts that the district court erred in denying
his Rule 33 motion based on the Government’s Giglio 1 violation.
Specifically, Talib asserts that he was unable to discredit a
co-conspirator’s testimony against him because the Government
failed to disclose the co-conspirator’s criminal history to him
prior to trial. Santiago submits a similar claim. Although
Santiago acknowledges that the co-conspirator did not testify
regarding Santiago’s role in the conspiracy, 2 he summarily
asserts on appeal that the Government’s Giglio violation
deprived him of a fair trial because knowledge of the
co-conspirator’s criminal history “may have raised a doubt in
1
Giglio v. United States, 405 U.S. 150, 153-55 (1972)
(requiring the Government to disclose evidence affecting the
credibility of prosecution witnesses).
2
Although the co-conspirator testified that he knew
Santiago, he offered no testimony regarding Santiago’s role in
the conspiracy.
4
the mind of the jury had they known the extent of [the
co-conspirator’s] criminal record.”
It is well-established that the Due Process Clause
requires the government to disclose to the defense prior to
trial any exculpatory or impeaching evidence in its possession.
See Giglio, 405 U.S. at 153-55; Brady v. Maryland, 373 U.S. 83,
86-88 (1963) (requiring the disclosure of exculpatory evidence).
Due process is violated, however, only if the evidence in
question: (i) is favorable to the defendant because it is
either exculpatory or impeaching; (ii) was suppressed by the
Government; and (iii) is material. See Strickler v. Greene,
527 U.S. 263, 281-82 (1999).
Undisclosed evidence is material when its cumulative
effect is such that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley,
514 U.S. 419, 433 (1995) (internal citations and quotation marks
omitted). A reasonable probability is one sufficient to
“undermine confidence” in the outcome. Id. at 435 (“The
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Id. at 434.).
5
Although it is undisputed that the Government was
obligated to turn over the co-conspirator’s criminal history
prior to trial, we find that the district court did not abuse
its discretion when it denied Defendants’ motions because the
criminal history was not material to their defenses. The jury
was well aware that the co-conspirator was a convicted felon at
time of Defendants’ trial; both the Government and Talib
questioned the co-conspirator about his felon status at the
trial; the jury was aware that the co-conspirator was also
charged for conspiring to bring heroin into USP-Lee; and upon
cross-examination by Talib, the co-conspirator testified that he
had a prior felony conviction for aiding and abetting a bank
robbery.
Moreover, because the co-conspirator’s testimony
merely confirmed another witness’s testimony about Talib’s role
in the conspiracy, and since there was ample evidence that
Santiago and Talib engaged in a conspiracy to distribute heroin
inside USP-Lee regardless of the co-conspirator’s testimony, we
find that the jury’s guilty verdict is worthy of confidence
despite the Government’s Giglio violation.
Talib also asserts that he was denied a fair trial
when the district court denied his Rule 29 motion. Talib argues
that because the drug evidence against him was destroyed prior
to trial, and because the Government failed to disclose the
6
destruction until just prior to trial, the Government prevented
Talib from opposing the physical evidence against him. We find
that the district court did not err when it denied Talib’s Rule
29 motion.
To establish that the Government violated its Brady
obligations when it failed to inform Talib about the evidence
destruction, Talib was required to establish that the Government
was aware that the evidence was destroyed. See United States v.
Stokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that to prove
a Brady violation, the defendant must show that “the prosecution
had the materials and failed to disclose them”) (internal
quotation mark omitted). The evidence at trial established,
however, that the local police department that maintained
physical custody of the heroin mistakenly believed that the
federal cases had concluded, and that the police did not inform
federal authorities that the evidence had been destroyed until
just before Defendants’ trial. It was also established that as
soon as the Government confirmed that the evidence was
destroyed, the Government faxed a letter to Santiago’s counsel
and Talib’s stand-by counsel 3 and, because Talib was housed in
3
Although Talib was initially represented by counsel, the
district court granted Talib’s pro se motion for removal of
counsel and allowed Talib to proceed pro se. The district court
nonetheless ordered stand-by counsel to assist Talib in his
defense.
7
the special housing unit at USP-Lee, the Government requested
that counsel inform Talib of the situation when they met with
him at the prison later that day. Talib does not assert that he
was not informed as to the destruction of the heroin promptly
after the Government provided such notice to his stand-by
counsel.
Moreover, Talib cannot establish that the evidence was
material. Although Talib asserts that the Government’s late
notification about the destruction deprived him of an
opportunity to conduct his own testing, more than eight months
passed between the time he was indicted and his jury trial and
no request for access to the physical evidence was ever made.
Nor does Talib explain why he believes that the lab analysis
results should be questioned.
In any event, the Government’s failure to ensure
preservation of the physical evidence in this case does not
automatically constitute a due process violation. Rather, when
law enforcement officers fail “to preserve evidentiary material
of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated
the defendant,” a defendant must show bad faith on the part of
law enforcement officers to establish a denial of constitutional
due process. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
8
Talib failed to show that the evidence was destroyed
in bad faith. To the contrary, trial testimony established that
the state officer who ordered the evidence to be destroyed
believed that the case was concluded and the officer never
contacted federal authorities to determine if the evidence was
still needed. In the absence of bad faith on the part of law
enforcement, the destruction of the physical evidence did not
amount to a violation of Talib’s due process rights and,
accordingly, Talib was not entitled to a judgment of acquittal
because of the destruction. 4
Defendants both assert that the charges against them
were multiplicitous and, thus, that their convictions on both
counts violated the Double Jeopardy Clause. While it is true
that an indictment charging a single offense in several
different counts is multiplicitous and subjects a defendant to a
risk of multiple sentences for a single offense in violation of
the Double Jeopardy Clause, see United States v. Goodine,
400 F.3d 202, 207 (4th Cir. 2005), a defendant may be convicted
4
Although Santiago also asserts on appeal that the evidence
should not have been admitted because “bad faith is implicit in
the destruction of evidence where the police know that there
were charges pending and did not have good cause to destroy the
evidence,” Santiago cites no authority for these propositions.
Moreover, we find his assertion that police were aware of the
pending status of the federal charges to be belied by the
record.
9
of separate offenses arising from a single act if each charge
requires proof of a fact that the other does not. See
Blockburger v. United States, 284 U.S. 299, 304 (1932);
Manokey v. Waters, 390 F.3d 767, 771-73 (4th Cir. 2004).
We find that Defendants’ convictions for conspiracy to
distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(C),
846, and conspiracy to defraud the United States or commit any
offense against the United States (i.e., provide and possess
contraband in prison), in violation of 18 U.S.C. § 371, although
both stemming from the same events, were not the same offense
for double jeopardy purposes. See Albernaz v. United States,
450 U.S. 333, 344 n.3 (1981) (recognizing that a single
conspiracy “can give rise to distinct offenses under separate
statutes without violating the Double Jeopardy Clause”); see
also United States v. Holloway, 128 F.3d 1254, 1257-58 (8th Cir.
1997) (holding that convictions under §§ 846 and 371 do not
offend the Double Jeopardy Clause). Accordingly, we conclude
that the district court did not err in denying Defendants’ Rule
29 and Rule 33 motions based on multiplicity or double jeopardy
grounds.
II. Limitation of Talib’s Character Witnesses
Talib also asserts that the district court erred when
it limited his character witnesses at trial to two out of the
10
five witnesses he sought to present, and that the district court
violated his right to a fair trial when it prevented two other
witnesses from testifying by suggesting that they refuse to
testify on his behalf. Although a defendant has a
constitutional right to present evidence in his favor, see
United States v. Moussaoui, 382 F.3d 453, 471 (4th Cir. 2004),
“a defendant’s right to present a defense is not absolute:
criminal defendants do not have a right to present evidence that
the district court, in its discretion, deems irrelevant or
immaterial.” United States v. Prince-Oyibo, 320 F.3d 494, 501
(4th Cir. 2003). We review a district court’s decision to
exclude evidence for an abuse of discretion. See United States
v. Fulks, 454 F.3d 410, 434 (4th Cir. 2006).
We find that the district court did not abuse its
discretion when it limited Talib to only two of the five
character witnesses he wished to present. When questioned by
the district court, Talib confirmed that all five witnesses --
who were all inmates at USP-Lee -- would similarly testify that
Talib did not engage in criminal activity in prison. The
district court also discovered that one of the inmates Talib
wished to present was unavailable to testify for disciplinary
reasons. Given the cumulative nature of the proposed witnesses’
testimony, we hold that the district court was well within its
discretion to limit Talib’s character witnesses.
11
We also find that the district court did not deprive
Talib of his due process rights by “intimidat[ing] two of [his]
witnesses into refusing to testify.” To the contrary, the
record establishes that during an ex parte communication between
the district court, Talib, and Talib’s stand-by counsel, the
district court explained to Talib that since two proposed
witnesses were implicated in the conspiracy, the district court
was required to warn both witnesses of their Fifth Amendment
right against self-incrimination before they testified.
Although the district court wanted to contact one of the
witnesses by telephone to inform her of her rights, Talib
explained that it was difficult to reach the witness because her
telephone number was disconnected; Talib then decided to forego
calling her as a witness. The record does not suggest that
Talib changed his mind about having the witness testify because
he was strong-armed by the district court.
The district court contacted Talib’s other proposed
witness by telephone and, after explaining that she was
implicated in the sale of marijuana and that she had a right not
to incriminate herself or to waive that right and testify on
Talib’s behalf, the witness informed the district court that she
declined to testify. The district court thus excused her from
testifying. The district court had discretion to caution this
witness of the possibility of incriminating herself if she
12
decided to testify. See United States v. Arthur, 949 F.2d 211,
215-16 (6th Cir. 1991) (holding that a district court has
discretion to caution a witness about self-incrimination so long
as the court does not “actively encourage[ the] witness not to
testify or badger[] a witness into remaining silent”). Although
threatening remarks and conduct that effectively drive a witness
off the witness stand amount to a due process deprivation, see
Webb v. Texas, 409 U.S. 95, 353-54 (1972), no such conduct
occurred in this case. Accordingly, we find that the district
court’s admonition did not amount to a due process violation.
III. Career Offender Classifications
Both Defendants assert that the district court erred
when it overruled their respective objections to their
Guidelines range calculations in their presentence investigation
reports and adopted those calculations. When reviewing a
district court’s application of the Sentencing Guidelines, this
court reviews its findings of fact for clear error and its
rulings on questions of law de novo. United States v. Osborne,
514 F.3d 377, 387 (4th Cir. 2008), cert. denied, 128 S. Ct. 2525(2008).
Career offender classification requires, among other
conditions, that a defendant have at least two prior felony
convictions for crimes of violence or controlled substance
13
offenses. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1(a) (2007). The Guidelines define a “controlled
substance offense” as follows:
[A]n offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or
dispense.
USSG § 4B1.2(b) (2007). A crime of violence is an offense
punishable by a term of imprisonment greater than one year that
“has as an element the use, attempted use, or threatened use of
physical force against the person of another.” USSG § 4B1.2(a)
(2007). We find that both Defendants were properly classified
as career offenders.
The prior felony convictions that rendered Talib a
career offender were as follows: (i) a 1989 conviction for
burglary, for which he was not released from prison until March
1992, when his parole revocation sentence ended; (ii) a 1997
conviction for unlawful delivery of a non-controlled substance;
and (iii) a 2000 carjacking conviction. 5 It is undisputed that
Talib’s carjacking conviction was a proper career offender
5
Although Talib’s 2000 escape conviction was also
considered to be a proper predicate offense, because Talib has
three other qualifying convictions, whether the escape
conviction also qualifies is immaterial.
14
predicate offense. Talib nonetheless asserts that his 1989
burglary conviction was not a proper predicate offense because
his last parole for that conviction was revoked in 1990, sixteen
years before the conspiracy for which he was found guilty.
This argument is meritless. Under USSG § 4A1.2(e)(1)
(2007), any sentence of imprisonment exceeding one year and one
month that results in the defendant being incarcerated for a
period of time within fifteen years of the commencement of the
instant offense may be properly considered in designating a
defendant a career offender. See USSG § 4A1.2(e)(1); USSG
§ 4B1.2 cmt. n.3 (stating that § 4A1.2 applies to the counting
of convictions under § 4B1.1). In calculating the fifteen-year
time period, the Guidelines direct the use of the date of a
defendant’s last release following parole revocation. USSG
§ 4A1.2(k)(2)(B)(i). Because Talib was not released following
his parole revocation until March 1992, the time period for
which the 1989 conviction could qualify as a career offender
predicate offense did not expire until March 2007, well after
the August 2006 conspiracy. Accordingly, we find that the
district court properly classified Talib as a career offender. 6
6
Although Talib also argues that his 1997 conviction for
unlawful delivery of a non-controlled substance did not qualify
as a proper predicate offense because the substance he delivered
was counterfeit, this argument is explicitly foreclosed by the
Guidelines, as they specifically define a “controlled substance
(Continued)
15
Santiago’s career offender predicate offenses
consisted of the following: (i) a 1991 conviction for third
degree criminal sale of a controlled substance, for which he was
released from prison in 1994 after his sentence for parole
revocation ended; (ii) a 1991 conviction for third degree
criminal sale of a controlled substance, for which he was
released from prison in 1994 after his sentence for parole
revocation ended; and (iii) a 2002 narcotics distribution
conviction. 7 It is undisputed that Santiago’s 2002 conviction
was a proper predicate offense. Moreover, because Santiago was
not released from his parole revocation sentences for the 1991
convictions until 1994, the time period for which those
convictions qualified as predicate offenses did not expire until
2009, well after the August 2006 conspiracy. Accordingly,
Santiago was properly classified as a career offender.
We have reviewed the Defendants’ remaining
contentions, including Santiago’s assertion that there was
insufficient evidence to convict him of the crimes with which he
offense” to include the distribution or dispensing of “a
controlled substance (or a counterfeit substance).” USSG §
4B1.2(b).
7
Santiago argues that his 1993 assault conviction did not
constitute a proper career offender predicate offense. Because
Santiago had other qualifying predicate offenses, whether the
assault conviction was a proper predicate offense is immaterial.
16
was charged, and find them to be without merit. Accordingly, we
affirm Defendants’ convictions and sentences. 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
17