United States v. Oscar Baptiste , 566 F. App'x 246 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4223
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR BAPTISTE, a/k/a Dread,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:11-cr-02015-RMG-1)
Submitted: December 31, 2013 Decided: April 16, 2014
Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort,
South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Oscar Baptiste of importing 500 grams
or more of cocaine and aiding and abetting the same, in
violation of 18 U.S.C. § 2 (2012) and 21 U.S.C. § 952(a) (2012).
The court sentenced Baptiste to 108 months’ imprisonment. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the
district court erred by declining to issue a jury instruction on
entrapment. Baptiste has filed a pro se supplemental brief, in
which he raises several challenges to his conviction and
sentence. We affirm.
Baptiste argues in his pro se supplemental brief that
the Government violated Brady v. Maryland, 373 U.S. 83 (1963),
by not disclosing the grand jury transcripts prior to the
hearing on his motion to dismiss the superseding indictment.
Pursuant to Brady, the government has a responsibility to
disclose material evidence favorable to the accused. United
States v. McLean, 715 F.3d 129, 142 (4th Cir. 2013). “A due
process violation occurs when (1) the evidence is favorable to
the accused because it is exculpatory or impeaching; (2) the
evidence was suppressed by the government, either willfully or
inadvertently; and (3) the evidence is material.” Id. “To be
2
material, there must be a reasonable probability that disclosure
of the evidence would have produced a different outcome.” Id.We conclude that Baptiste has failed to demonstrate
that the Government violated Brady by not disclosing the grand
jury transcripts prior to the hearing on his motion to dismiss
the superseding indictment. To the contrary, in accordance with
the Federal Rules of Criminal Procedure, the district court
allowed Baptiste’s counsel to review relevant portions of the
grand jury transcripts during the motions hearing. See Fed. R.
Crim. P. 6(e)(3)(E)(ii) (providing that grand jury testimony may
be disclosed “at the request of a defendant who shows that a
ground may exist to dismiss the indictment because of a matter
that occurred before the grand jury”).
Next, Baptiste argues in his pro se supplemental brief
that the district court erred by failing to dismiss the
superseding indictment. In reviewing the denial of a motion to
dismiss an indictment, we review the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).
“When a criminal defendant challenges the sufficiency of an
indictment prior to the verdict, we apply a heightened
scrutiny.” United States v. Kingrea, 573 F.3d 186, 191 (4th
Cir. 2009). A federal indictment must contain elements of the
offense charged, fairly inform the defendant of the charge, and
3
enable the defendant to plead double jeopardy as a defense to
future prosecutions for the same offense. United States v.
Resendiz–Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P.
7(c)(1).
We conclude that Baptiste’s indictment fairly informed
him of the charge and the elements thereof. “Because the aiding
and abetting provision [18 U.S.C. § 2] does not set forth an
essential element of the offense with which [Baptiste] is
charged or itself create a separate offense, aiding and abetting
liability need not be charged in [the] indictment.” United
States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). Moreover,
the language of Baptiste’s indictment includes the essential
elements of the 21 U.S.C. § 952(a) offense. See United States
v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (listing elements
of § 952 offense); see also Fed. R. Crim. P. 7(c)(2) (providing
that typographical error in indictment is not ground for
dismissal unless it prejudices defendant). Finally, we conclude
that the district court did not err by determining that the
Government accurately presented the facts of the case to the
grand jury, and therefore, we find no merit in Baptiste’s
contention that the Government misled the grand jury when
seeking the indictment.
Counsel questions whether the district court erred by
declining to issue a jury instruction on entrapment. We review
4
de novo a district court’s decision to deny a defendant’s
requested instruction on entrapment. United States v. Ramos,
462 F.3d 329, 334 (4th Cir. 2006). However, “[t]he district
court is the gatekeeper; if the defendant does not produce more
than a scintilla of evidence of entrapment, the court need not
give the instruction.” United States v. Hackley, 662 F.3d 671,
681 (4th Cir. 2011) (internal quotation marks omitted), cert.
denied, 132 S. Ct. 1936, 2703 (2012). “An entrapment defense
has two elements: (1) government inducement of the crime and
(2) the defendant’s lack of predisposition to engage in the
criminal conduct.” Ramos, 462 F.3d at 334. “‘Inducement’ . . .
involves elements of governmental overreaching and conduct
sufficiently excessive to implant a criminal design in the mind
of an otherwise innocent party.” United States v. Daniel, 3
F.3d 775, 778 (4th Cir. 1993).
After reviewing the trial transcript, we find no
evidence that the Government induced Baptiste to engage in the
criminal conduct. Rather, the confidential informant (“CI”)
emphatically stated that Baptiste approached him about the plan
to import cocaine into the United States from Panama. Any
question as to the CI’s credibility was addressed in the court’s
specific instruction that the jury should consider the CI’s
testimony with a heightened degree of scrutiny. In sum, we find
that Baptiste needed no nudging to initiate his importation
5
scheme, to contact his acquaintances in Panama, and to provide
the CI with the specific container number in which the cocaine
ultimately arrived. Accordingly, we conclude that the district
court correctly declined to issue a jury instruction on
entrapment.
Baptiste argues in his pro se supplemental brief that
the evidence was insufficient to support his conviction. We
review the denial of a Fed. R. Crim. P. 29 motion de novo.
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
When a Rule 29 motion is based on a claim of insufficient
evidence, the jury’s verdict must be sustained “if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” United States v. Abu Ali, 528 F.3d
210, 244 (4th Cir. 2008) (internal quotation marks and brackets
omitted). “We have defined substantial evidence as 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.” Alerre, 430 F.3d at 693 (internal
quotation marks omitted).
To support a conviction of importing 500 grams or more
of cocaine, the Government was required to prove: “(1) that the
[500 grams or more of cocaine] was imported; (2) that [the 500
grams or more of cocaine] was imported knowingly and willfully;
and (3) that [Baptiste] willfully associated himself with the
6
importation venture.” Samad, 754 F.2d at 1096; see Argaw v.
Ashcroft, 395 F.3d 521, 524 (4th Cir. 2005) (considering
elements of importation in immigration context).
After reviewing the trial transcript, we conclude
that, contrary to Baptiste’s contention, overwhelming evidence
linked Baptiste to the container in which the cocaine was
imported into the Port of Charleston. The evidence demonstrates
that Baptiste met with the CI on several occasions to discuss
the plan to import the cocaine. Notably, at the meeting on the
night before the cocaine was discovered, Baptiste provided the
exact number of the container in which the cocaine would be
shipped and advised the CI that the cocaine would be packaged in
a Choco Krispis box. Agents found the cocaine in the numbered
container in a Choco Krispis box the next day. Moreover, the
evidence demonstrates that the email address and telephone
numbers the CI and the case agent used to communicate with
Baptiste about the shipment were registered in Baptiste’s name.
In one email, Baptiste indicated that he needed to fly back to
Panama to work out the details of the shipment, and the case
agent confirmed that Baptiste flew to Panama shortly thereafter.
Finally, while Baptiste claims that he only discussed auto parts
with the CI, both the CI and the case agent testified that they
referred to auto parts to establish a code for the criminal
activity. Accordingly, the Government produced sufficient
7
evidence to support Baptiste’s conviction, and the district
court did not err by denying Baptiste’s Rule 29 motions.
Baptiste’s final argument in his pro se supplemental
brief is that the district court erred by not requiring the jury
to find the drug weight attributable to him beyond a reasonable
doubt. The jury found that Baptiste was guilty of importing 500
grams or more of cocaine; the higher figure found by the
district court, by a preponderance of the evidence, affected
Baptiste’s advisory Guidelines range, not his statutory
sentencing exposure. We conclude that Baptiste’s argument is
without merit, as the district court was empowered to determine
the quantity of drugs attributable to Baptiste for Guidelines
purposes by a preponderance of the evidence. United States v.
Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008).
In accordance with Anders, we have reviewed the record
and have found no meritorious grounds for appeal. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Baptiste, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Baptiste requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Baptiste.
8
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
9