United States v. Craig ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO MAURICE CRAIG, a/k/a Cup,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00088-FDW-CH-1)
Argued: October 28, 2009 Decided: December 30, 2009
Before MOTZ and GREGORY, Circuit Judges, and Benson E. LEGG,
Chief United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina;
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Antonio Maurice Craig appeals his convictions for
possession with intent to distribute cocaine base and for
conspiracy to possess and distribute cocaine base. He argues
that the district court abused its discretion in refusing to
issue a lesser included offense instruction for powder cocaine,
that the evidence was insufficient to support his convictions,
and that the district court abused its discretion in admitting
hearsay testimony. For the reasons that follow, we affirm.
I.
A grand jury issued a three-count indictment against Craig.
Count One charged conspiracy to possess and distribute at least
fifty grams of cocaine base from March 2005 to March 31, 2006 in
violation of 21 U.S.C. §§ 841(b)(1), 846. This crime related to
a series of alleged hand-to-hand transactions committed during
this time period.
Count Two charged possession with intent to distribute at
least five grams of cocaine base on March 12, 2005 in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B). On March 12, a police
officer stopped Craig’s vehicle and found a 7.54 gram crack rock
in the front of the car as well as a smaller piece of crack in
the back seat. During a pat-down search, the officer also
discovered a small baggie of cocaine (.35 grams) in Craig’s
3
pocket. Craig’s brother, a fugitive at the time, was in the car
as well.
Count Three charged possession with intent to distribute at
least five grams of cocaine base on March 31, 2005 in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. This
charge arose out of the search of a home rented and occupied by
Craig, which yielded a 5.94 gram crack rock and drug dealing
paraphernalia.
Craig pleaded not guilty, and his case went to trial before
a jury. Although the Government did not charge Craig with
possession of powder cocaine, defense counsel permitted the
introduction of the powder seized on March 12, purportedly to
bolster a theory that Craig’s use of powder cocaine constituted
his only contact with drugs.
At the close of evidence, Craig’s attorney requested a
lesser included offense instruction for possession of powder
cocaine. The district court refused to give the instruction on
the ground that the Government had not charged Craig with
possession of the baggie of powder cocaine.
While deliberating, the jury asked, among other things, to
see testimony relating to the baggie of cocaine that the police
seized from Craig on March 12. The court refused to furnish the
jurors with a transcript of the testimony, but allowed them to
view the evidence itself if they wished.
4
Shortly thereafter, the jury returned a verdict finding
Craig guilty of the crimes charged in Counts One and Two, and
acquitting him of the crime charged in Count Three. The verdict
form asked the jury to find a quantity of cocaine base
foreseeable to Craig under each count of the indictment. For
each of the two convictions, the jury checked a box finding less
than five grams of cocaine base foreseeable to Craig. The
district court sentenced Craig to a prison term of 240 months.
Craig timely appeals, raising three contentions, which we
consider in turn.
II.
First, Craig argues that the district court erred in
refusing to issue a lesser included offense instruction for
possession of powder cocaine. 1
Federal Rule of Criminal Procedure 31(c) provides that a
“defendant may be found guilty of . . . an offense necessarily
included in the offense charged.” Fed. R. Crim. P. 31(c).
1
The district court also denied Craig’s request for a
lesser included offense instruction for simple possession of
crack. Craig does not pursue that request on appeal. Rather,
Craig now simply contends that a powder cocaine offense
constitutes a subset of a crack cocaine offense, which entitles
him to a lesser included offense instruction for Count Two
(relating to March 12, the day that the police seized powder
cocaine from his person), and for Count One (to the extent that
the events of March 12 also support that conviction).
5
Concerned that prosecutors may be tempted to obtain unjustly
harsh convictions by forcing a jury to decide between conviction
of a very serious offense or acquittal, the Supreme Court has
held that defendants may request a lesser included offense
instruction to give the jury a more palatable alternative.
Keeble v. United States, 412 U.S. 205, 212-13 (1973).
A trial court must issue a requested lesser included
offense instruction when “the elements of the lesser offense are
a subset of elements of the charged offense.” Schmuck v. United
States, 489 U.S. 705, 716 (1989). Craig argues that because the
elements of possession of powder cocaine constitute a subset of
the elements of possession of cocaine base, see United States v.
Brisbane, 367 F.3d 910, 914 (D.C. Cir. 2004), 2 the district court
should have issued a lesser included offense instruction in this
case.
Craig’s argument fails because it misapprehends the purpose
of the lesser included offense instruction. Such an instruction
serves to prevent the prosecution from characterizing a single
crime as overly severe -- not to force the prosecution to charge
a defendant, who commits two crimes, with the less severe of the
two. We rejected a very similar argument in United States v.
2
We need not, and do not, reach the question whether, as a
legal matter, the elements of powder cocaine offenses constitute
a subset of the elements of cocaine base offenses.
6
Echeverri-Jaramillo, 777 F.2d 933 (4th Cir. 1985). 3 There, the
defendant -- charged with possession with intent to distribute
over thirty-five pounds of cocaine, which he offloaded from a
boat -- requested a lesser included offense instruction relating
to a small amount of cocaine that he possessed in his pocket.
Id. at 934-35. We upheld the district court’s refusal to give
such an instruction, reasoning:
The indictment against Echeverri . . . recited overt
acts relating only to the over thirty-five pounds of
cocaine which were removed from the [boat]. . . . The
smaller amount of cocaine allegedly possessed by
Echeverri . . . was not part of the indictment and
consequently had no role in the judge’s jury
instructions as to the nature of the crimes charged.
Id. at 935.
In this case, as in Echeverri-Jaramillo, the “overt acts”
recited in the indictment do not include possession of the
“smaller amount of cocaine,” here the baggie. 4 Craig’s argument
3
Craig argues that Schmuck overruled Echeverri-Jaramillo.
In fact, Schmuck expressly states that its holding “in no way
alters” the rule relied on in Echeverri-Jaramillo and in the
case at hand, that “the evidence at trial must be such that a
jury could rationally find the defendant guilty of the lesser
offense, yet acquit him of the greater.” 489 U.S. at 716 n.8.
4
Craig suggests that because the indictment did not
specifically mention the crack rock in his car, it was ambiguous
as to whether he was being tried for the crack, the powder, or
both. However, the indictment specified that Craig possessed “a
mixture and substance containing a detectable amount of cocaine
base, commonly known as crack cocaine.” Furthermore, the
indictment alleged that Craig possessed “at least five grams of
a mixture containing . . . crack cocaine.” Although the
(Continued)
7
is therefore not that the conduct charged in the indictment was
less serious than the indictment alleges. Rather, he contends
that this court should force the Government to prosecute him for
entirely separate conduct. But “the decision to prosecute is
particularly ill-suited to judicial review.” Wayte v. United
States, 470 U.S. 598, 607 (1985). Here, we decline to second-
guess the prosecutor’s decision not to charge Craig with
possession of the baggie of powder cocaine. We therefore hold
that the district judge did not err by refusing to issue a
lesser included offense instruction.
III.
Craig also challenges the sufficiency of the evidence to
support his convictions. With regard to Count One, Craig argues
that the evidence against him, indicating that he engaged in
multiple hand-to-hand transactions each day, is inconsistent
with the jury’s attribution of less than five grams to him. As
to Count Two, Craig argues that the 7.54 gram crack rock, the
only cocaine base in his vehicle on March 12, is again
inconsistent with the jury’s attribution to him of less than
five grams of cocaine base. In sum, Craig argues that because
indictment could have been more specific and mentioned the 7.54
gram crack rock, it was certainly not vague enough to be
ambiguous on this point.
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the jury found him responsible for such a small amount of
cocaine base, it implicitly rejected all of the evidence against
him, which tended to show that he was responsible for a much
larger amount of cocaine base.
A defendant challenging the sufficiency of the evidence
bears a “heavy burden.” United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997). We must uphold a jury’s verdict if
the evidence, viewed in the light most favorable to the
Government, would permit a reasonable finder of fact to find the
defendant guilty beyond a reasonable doubt. United States v.
Foster, 507 F.3d 233, 245 (4th Cir. 2007); United States v.
Burgos, 94 F.3d 849, 862 (4th cir. 1996) (en banc). We reverse
only where “where the prosecution’s failure is clear.” Burks v.
United States, 437 U.S. 1, 17 (1978); Foster, 507 F.3d at 244-
45.
To prove possession with intent to distribute cocaine base,
the Government must show (1) possession of the cocaine base; (2)
knowledge of this possession; and (3) intent to distribute. See
Burgos, 94 F.3d at 873. Possession may be “actual or
constructive, and it may be sole or joint.” Id. (quotation
marks and citation omitted). The “elements of a § 846
conspiracy are (1) an agreement between two or more persons to
violate federal law relating to controlled substances; (2)
knowledge of the essential objectives of the conspiracy; (3)
9
knowing and voluntary involvement therein; and (4)
interdependence among the conspirators.” United States v. Hall,
551 F.3d 257, 268 n.13 (4th Cir. 2009).
Craig relies on dicta from Pipefitters Local Union No. 562
v. United States, 407 U.S. 385, 400 n.11 (1972), to argue that
if the jury’s specific verdict that Craig was responsible for
less than five grams of cocaine base is inconsistent with its
general verdict, then his conviction cannot stand. Whatever
force the Pipefitters dicta may have once had, it withered when
the Supreme Court, in United States v. Powell, 469 U.S. 57(1984), subsequently reaffirmed the decades-old principle that
controls here. 5 In Powell the Court explained that “where truly
inconsistent verdicts have been reached, ‘[t]he most that can be
said . . . is that the verdict shows that either in the
acquittal or the conviction the jury did not speak their real
5
Craig attempts to distinguish Powell on the ground that
Powell addressed only cases in which the verdict on one count is
inconsistent with the verdict on another, while in this case,
the inconsistent verdicts are the specific and general verdict
on the same count. See Powell, 469 U.S. at 59. This is a
distinction without a difference. The rationale of Powell, that
an appellate court should not infer innocence when a jury,
whether “through mistake, compromise, or lenity,” reaches
inconsistent verdicts, applies with full force here. Id. at 65.
Moreover, the Powell Court expressly considered and rejected the
argument that inconsistent verdicts justify appellate
intervention even “where the jury acquits a defendant of a
predicate felony, but convicts on the compound felony,” a
circumstance extremely close to the facts of this case. Id. at
67.
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conclusions, but that does not show that they were not convinced
of the defendant's guilt.’” Id. at 64-65 (alteration in
original) (quoting Dunn v. United States, 284 U.S. 390, 393
(1932)).
Furthermore, after examining the facts, we detect no
inconsistency between the jury’s specific verdict and its
general verdict. While Craig may be able to stake out a claim
that the jury intended to show him mercy, or to apportion
responsibility for his crimes among multiple perpetrators, he
cannot sustain his “heavy burden” to show that no rational
factfinder could find him guilty of the offenses charged in the
indictment and also find him responsible for less than five
grams of cocaine base.
With regard to Count One, multiple witnesses testified that
Craig dealt crack cocaine, and the jury could have partially
credited their statements to arrive at the conclusion that Craig
dealt a small amount of crack. The jury could also have
determined that the events of March 12, 2005, when police
arrested Craig and his brother together, amounted to a
conspiracy to possess and distribute crack cocaine that
satisfied the requirements of Count One of the indictment.
As to Count Two, the jury could have apportioned the 7.54
grams of crack in various amounts to Craig and his brother. It
could also have found that Craig possessed the smaller piece of
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crack located under the rear seat of his car. Alternately, the
jury could have decided to show mercy and find Craig guilty of
possessing less crack than the evidence suggested he actually
possessed.
Ultimately, we do not know how the jury considered the
evidence. All we know for certain is that after considering the
evidence, the jury found Craig guilty of two of the charged
offenses, and the record contains sufficient evidence to support
that verdict.
IV.
Finally, Craig argues that the district court erred by
overruling his objection to the hearsay testimony of FBI agent
David Drew. Agent Drew testified that he used an informant,
Sean Wright, to purchase drugs and report the transactions to
Drew. On cross-examination, defense counsel asked Drew whether
Wright had ever told Drew that he had purchased drugs from
Craig. Drew responded that he had not. On redirect, the
Government asked Drew to relate Wright’s observations. Drew
responded that Wright had told him that he observed Craig make a
hand-to-hand narcotic transaction with another individual.
Defense counsel did not object to the hearsay at that time
because the Government had subpoenaed Wright to appear later in
the trial. After Wright failed to appear, defense counsel did
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promptly object to the hearsay testimony. The district court
overruled the objection on the grounds that it was not timely,
and that Craig’s attorney had “opened the door” to the hearsay
by soliciting hearsay testimony from Agent Drew on cross
examination.
For purposes of our review, we will assume defense counsel
lodged a timely objection to the hearsay. The parties agree
that we review rejection of even a timely objection to hearsay
for abuse of discretion. “A district court is given broad
discretion in its evidentiary rulings, which are entitled to
substantial deference.” United States v. Murray, 65 F.3d 1161,
1170 (4th Cir. 1995). For a district court to abuse its
discretion, it must act “arbitrarily or irrationally.” United
States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997).
Hearsay testimony is generally inadmissible. See Fed. R.
Evid. 802. However, a court may admit such testimony if the
opposing party “opened the door” by soliciting similar testimony
herself. See United States v. Williams, 106 F.3d 1173, 1177
(4th Cir. 1997). In Williams, on cross examination, defense
counsel asked a government agent whether he had personal
knowledge of any dealings between the defendant and an
informant; the agent responded that he did not. On re-direct
examination, the prosecutor asked, “[a]nd did [the informant]
say whether or not he had ever obtained methamphetamine from the
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defendant?” The agent answered “yes.” Id. at 1177. The
defense objected to the statement as hearsay, the court
overruled the objection because the defense had “opened the
door,” and we affirmed.
Williams controls here. In Williams, the defense did not
directly solicit hearsay testimony. Rather, it merely asked
whether the agent had “personal knowledge” of illicit dealings.
In this case, by contrast, Craig’s attorney explicitly solicited
hearsay testimony. If the door was open in Williams, then it is
wide agape here, and we cannot deem the district court’s
decision an abuse of discretion. 6
V.
In sum, we hold that Craig had no entitlement to a lesser
included offense instruction, that the jury possessed sufficient
evidence to convict him, and that the district court did not
6
Craig would have us rely, instead, on Achiekwelu, in which
we affirmed a district court’s decision to permit the Government
to offer a tardy objection to an unauthenticated exhibit.
Achiekwelu is inapposite for two reasons. First, the district
court sustained the objection in Achiekwelu, but overruled it
here. Thus, Achiekwelu does not stand for the proposition that
tardy objections will always suffice. Rather, it suggests that
even though tardy objections are disfavored, an appellate court
will defer to the trial court’s decision to permit such an
objection. Second, Achiekwelu dealt only with timeliness of an
objection. It said nothing about whether the defense “opened
the door” to hearsay, the key issue here.
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abuse its discretion in admitting Agent Drew’s hearsay
testimony. The judgment of the district court is therefore
AFFIRMED.
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