United States v. Freddie Wigenton , 490 F. App'x 557 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4301
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDDIE WIGENTON, a/k/a Lil D,
Defendant - Appellant.
No. 11-4302
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESHAWN ANDERSON, a/k/a Buddha,
Defendant - Appellant.
No. 11-4303
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN WAYNE WILLIAMS, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cr-00414-JCC-1, 1:09-cr-00414-JCC-2,
1:09-cr-00414-JCC-3)
Submitted: June 15, 2012 Decided: August 3, 2012
Before TRAXLER, Chief Judge, NIEMEYER and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul P. Vangellow, PAUL P. VANGELLOW, PC, Falls Church,
Virginia, for Appellant Deshawn Anderson; Alan H. Yamamoto,
Alexandria, Virginia, for Appellant Freddie Wigenton; Matthew A.
Wartel, Alexandria, Virginia, for Appellant Marvin Wayne
Williams, Jr.; Neil H. MacBride, United States Attorney,
Michael P. Ben'Ary, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Freddie Wigenton, Deshawn Anderson, and Marvin Wayne
Williams, Jr. (collectively, “Appellants”) appeal their
convictions and sentences arising out of a drug conspiracy and
drug-related killing. Finding no error, we affirm.
I.
As is relevant to this appeal, the evidence presented
at trial, viewed in the light most favorable to the government,
is as follows. Starting in approximately 2005, Williams was the
source of crack cocaine, powder cocaine, marijuana, and PCP for
a drug distribution business he operated with Annette Sprow.
Sprow sold hundreds of ounces of crack during the conspiracy.
Wigenton and Anderson would both purchase “eight-ball”
quantities of crack from Sprow (roughly 3.5 grams), divide them
into smaller quantities, and resell them.
During the conspiracy, two men robbed Sprow at
gunpoint in her apartment, from which she and Williams sold
drugs. The robbers stole a .38-caliber pistol, a vehicle, and
some drugs that were inside the vehicle. Sprow believed she
recognized one of the men, but the other man’s face was covered
with a bandana. When Williams learned of the robbery, he was
very upset. He suspected that a man named Kyle Turner was
involved. Turner and Williams had had a dispute a few weeks
3
earlier, and Sprow told Williams that she had seen Turner
wearing the same hat as the robber whose face had been covered.
Williams stated that he would “take . . . out” the robbers if he
found them. J.A. 933.
A “couple of days” after the robbery, Turner asked
Sprow, who was in front of her apartment building, if he could
buy a “dipper,” which is a cigarette dipped in PCP. J.A. 480.
Sprow loudly told Turner that she was not selling PCP at that
time. Williams, who was nearby, called Sprow over to find out
what Turner had said to her. Sprow then returned upstairs to
her apartment with a friend, Rashourn Niles.
Shortly thereafter, Reginald Moten walked through the
parking lot behind Sprow’s building with Turner and one other
person. Moten saw the Appellants standing in the front corner
of the parking lot; they were the only other people he saw in
the area. As Moten left the lot and walked toward the front of
Sprow’s building, he heard gunshots and saw flashes. He quickly
fled.
Sprow and Niles also heard the shots from Sprow’s
third-floor apartment. Niles looked out of the window and saw
Anderson and Wigenton shooting at Turner, who was lying on the
ground in the parking lot. Seconds later, all three Appellants
ran into the apartment along with a fourth person. Sprow
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noticed that the three Appellants had guns, and she heard
Anderson ask Wigenton for more bullets.
Williams ordered Sprow to drive the other three men
home, and he gave her his gun so that she could get it away from
the apartment. During the short ride, Sprow heard Anderson ask
Wigenton if he saw “how that MFer’s body shook when he hit the
ground.” J.A. 490.
When Sprow returned to her apartment, Williams told
her that he had seen Turner in the parking lot, and that when
Williams overheard Turner say Sprow’s name, Williams “just
started shooting.” J.A. 490. Also shortly after the shooting,
Anderson, with Wigenton present, told Jeremiah Jackson that
Anderson and two other individuals had just shot someone who had
robbed Sprow. Anderson reported that he had used a .40-caliber
firearm and that the other two individuals had used .45-caliber
and .38-caliber firearms.
In the next few days, Anderson also told Anthony
Hogan, a former football teammate, that Anderson “had shot a
dude” and “unloaded his .40-caliber.” J.A. 1018, 1021.
Anderson again reported that two other individuals had
participated in the shooting, one using a .45-caliber firearm
and the other, a .38–caliber. Anderson also gave a similar
account to Jerome Waters. Anderson told Waters that the
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individual with the .38-caliber weapon had fired “a couple of
times” before the weapon jammed. J.A. 944.
Wigenton also told Waters that authorities were trying
to charge him with the killing but that he had thrown his weapon
into the water. Wigenton also discussed his participation in
the shooting with Jackson, telling him that “they got to
shooting at somebody” and that Wigenton had later disposed of
the guns by “[t]hr[owing] them off [a] bridge or something.”
J.A. 875.
The physical evidence collected from the scene was
consistent with Appellants’ accounts of the killing. Manassas
City Police collected several .45-caliber shell casings from the
area at the front corner of the parking lot. They also found an
unspent .38-caliber round, a .38-caliber shell casing, and ten
.40-caliber casings in the lot.
Turner’s autopsy revealed 13 gunshot wounds, and .45-
caliber, .38-caliber, and .40-caliber bullets were all recovered
from Turner’s body. The medical examiner concluded that
Turner’s death was caused by multiple gunshot wounds and that
lethal or potentially lethal wounds were attributable to
ammunition of each caliber.
Following an investigation, the government filed two
single-count Juvenile Informations, one charging Anderson and
one charging Wigenton with the intentional killing of Turner
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during the course of a drug conspiracy, in violation of 21
U.S.C.A. § 848(e)(1)(A) (West 1999) and 18 U.S.C.A. § 2 (West
2000), if they had been adults. The government also filed
Certifications To Proceed Under the Juvenile Justice and
Delinquency Prevention Act, see 18 U.S.C.A. § 5031, et seq.
(West 2000 & Supp. 2012). The government later successfully
moved to transfer both juveniles to adult prosecution.
In December 2009, a federal grand jury returned a
three-count superseding indictment charging Appellants with
conspiracy to distribute crack cocaine (Count One), intentional
killing while engaged in drug trafficking (Count Two), and use
of a firearm in connection with conspiracy to distribute crack
cocaine resulting in death (Count Three). Each Appellant
pleaded not guilty.
Each Appellant filed a pre-trial motion seeking to
have his case severed from that of his co-defendants, or for
suppression of his co-defendants’ out-of-court statements. The
district court granted the motions to suppress the statements,
ruling that “the Government will be allowed to offer the
statements of each defendant only against the declarant, and not
against the other two co-defendants.” J.A. 138.
The case then proceeded to trial by jury. The jury
returned guilty verdicts for each Appellant on Counts One and
Three and a verdict of not guilty for each on Count Two.
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Appellants filed various post-trial motions, which the district
court denied. Each Appellant received sentences of 25 years on
Count One and 25 years on Count Three, to run consecutively.
II.
Appellants first argue that the evidence was
insufficient to support their convictions on Count One. We
disagree.
Sprow’s testimony about the conspiracy in general and
Appellants’ respective roles in it was sufficient by itself to
sustain the verdict, and her testimony was also corroborated by
other witnesses. Appellants argue that in light of the
significant evidence casting doubt upon the credibility of the
government’s witnesses – Sprow, in particular – the evidence
supporting Appellants’ guilt on Count One was not sufficient.
However, the question of a witness’s credibility is one for the
jury to decide. See United States v. Shipp, 409 F.2d 33, 36
(4th Cir. 1969).
Appellants also argue with regard to Anderson
specifically that even though Sprow testified she sold drugs to
him, there is no evidence that he redistributed those drugs.
That claim is refuted by the record. When asked what Anderson
would sell, Sprow answered “[c]rack.” J.A. 469. She testified
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he was buying the crack from her “[m]aybe once a week” in
“[e]ight-ball” quantities. 1 J.A. 470.
Appellants also contend that there was no evidence
that it was reasonably foreseeable to Anderson that the quantity
of crack cocaine allegedly distributed in the conspiracy was 50
grams or more. However, a reasonable jury could easily conclude
that the scope of the conspiracy was reasonably foreseeable to
Anderson. Sprow testified that Anderson was himself purchasing
eight-balls of crack, which are approximately 3.5 grams each.
And, his involvement in the conspirators’ retribution for the
robbery of the stash house tended to show his awareness that the
operation was significantly larger than the sales he was making.
III.
Appellants next challenge the sufficiency of the
evidence on Count Three, which charged that Appellants used
firearms to murder Turner during and in relation to their drug
distribution conspiracy. We find this challenge to be without
merit.
The government presented testimony that Williams had a
prior disagreement with Turner and that Williams told Sprow and
1
Although Appellants contend that this evidence was
hearsay, it was evidence of Anderson’s actions, not evidence of
what anyone said.
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others that he would “take care of” the person responsible for
the robbery, who Williams and Sprow believed to be Turner. J.A.
480; see also J.A. 933 (testimony that Williams said he would
“take . . . out” the robbers). Additionally, Niles testified
that when he looked out of Sprow’s window, he saw Anderson and
Wigenton shooting Turner. Both Sprow and Niles testified that
moments after the shooting, all three Appellants ran into the
apartment. Sprow saw that all three had guns, and Niles also
noticed that Anderson was holding a gun. Additionally, the
Appellants’ own statements to others implicated them in Turner’s
murder, and their statements were consistent with the physical
and forensic evidence presented at trial.
IV.
Appellants also maintain that the district court erred
in concluding that the jury, in finding them each guilty on
Count Three, found them guilty of violating 18 U.S.C.A. § 924(j)
(West Supp. 2012), as opposed to 18 U.S.C.A. § 924(c) (West
Supp. 2012). Appellants argue that while both subsections
require proof of a use or carrying of firearms during and in
relation to a drug trafficking crime, § 924(j) also requires
proof of a resulting death. Appellants contend that the jury
was never instructed that to find Appellants guilty of Count
Three, it would have to find that they used firearms to kill
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Turner. That contention, however, is incorrect. 2 The court
charged that to establish the first element of the crime alleged
in Count Three, the government would need to show that the
defendants “committed the crime of using a firearm in connection
with the conspiracy to distribute crack cocaine resulting in
death as identified in counts one, two, and three of the
superseding indictment.” J.A. 1408 (emphasis added). The
district court read each of the three counts to the jury.
Counts Two and Three both alleged that the Appellants used
firearms to kill Turner. No other death was referenced in the
indictment.
V.
Appellants next argue that the district court erred in
transferring Wigenton and Anderson to adult prosecution. We
review a district court’s ultimate decision to transfer a
juvenile to adult status for abuse of discretion, reviewing the
2
Because we conclude that the jury was instructed that
it must find that Appellants used firearms to kill Turner in
order to find Appellants guilty of Count Three, we also reject
Appellants’ arguments that the indictment was constructively
amended and that the district court relied on acquitted conduct
in holding Appellants responsible for Turner’s murder at
sentencing. Additionally, as to the acquitted-conduct argument,
it is well established that in determining an appropriate
sentence, a district court may consider conduct for which the
jury returned a not-guilty verdict. See United States v.
Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009).
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underlying factual findings for clear error. See United States
v. Robinson, 404 F.3d 850, 858 (4th Cir. 2005). We find no
abuse of discretion with regard to either Appellant.
In determining whether to transfer a juvenile to adult
status, the district court must consider: (1) the juvenile’s
age and social background, (2) the nature of the offense
alleged, (3) the extent and nature of the juvenile’s prior
record of delinquency, (4) the juvenile’s current intellectual
development and psychological maturity, (5) the nature of past
treatment efforts regarding the juvenile and his response
thereto, and (6) the availability of programs designed to treat
the juvenile’s behavioral problems. See 18 U.S.C.A. § 5032(West 2000). Although the court may decide what weight each
factor should have, “the nature of the crime clearly
predominates.” United States v. Juvenile Male #1, 86 F.3d 1314,
1323 (4th Cir. 1996).
In determining that Wigenton and Anderson should be
transferred to adult status, the court concluded with regard to
each that five of the six factors weighed in favor of transfer
and that the factor of intellectual development and maturity was
neutral. At the time of the offense, Wigenton was 17 and
Anderson just fourteen days short of 17. The court found that
both had had family support and neither had been abused or
neglected. The court further determined that an intentional
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killing during a conspiracy to distribute crack is a serious
crime. The court also noted the Appellants’ extensive juvenile
criminal histories. Wigenton’s criminal record showed that he
had twice been convicted as an adult in Virginia courts.
Similarly, Anderson had twice been convicted as an adult for
malicious wounding. Although the court determined that both had
performed poorly academically, it found that they possessed the
cognitive ability to conform their actions to the law. The
court determined that the numerous opportunities for treatment
the two had received had not prevented them from continuing to
commit criminal offenses. Finally, the court concluded that in
light of the Appellants’ ages and extensive criminal histories,
no programs were available to treat their behavioral problems.
In our view, the court’s reasoning was sound, and the court was
well within its discretion with regard to each Appellant.
VI.
Appellants also contend that the district court erred
in denying their severance motions. We disagree.
We review a district court’s denial of a severance
motion for abuse of discretion. See United States v. Medford,
661 F.3d 746, 753 (4th Cir. 2011). “There is a preference in
the federal system for joint trials of defendants who are
indicted together.” Zafiro v. United States, 506 U.S. 534, 537
13
(1993). Severance is appropriate “only if there is a serious
risk that a joint trial would compromise a specific trial right
of one of the defendants, or prevent the jury from making a
reliable judgment against guilt or innocence.” Id. at 539.
Here, Appellants maintain that severance was required
to protect their Confrontation Clause rights under Crawford v.
Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391
U.S. 123 (1968), regarding their co-defendants’ out-of-court
admissions. That is not the case, however.
Crawford establishes that the Confrontation Clause
prohibits the admission of testimonial hearsay statements
against a criminal defendant unless that defendant has the
opportunity to cross-examine the declarant. See 541 U.S. at 53-
54. A statement is testimonial if it was “made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial.” Id. at 52 (internal quotation marks omitted).
The statements at issue here, however, were made to non-law
enforcement witnesses and were not in anticipation of trial.
Additionally, even assuming that non-testimonial
statements of co-defendants can create a Bruton problem
after Crawford, the admission of the statements by the co-
defendants did not violate Bruton because the statements made no
mention of the names of anyone else involved nor provided a
14
means of identifying them. See United States v. Najjar, 300
F.3d 466, 475 (4th Cir. 2002) (“A Bruton problem exists only
where a co-defendant’s statement on its face implicates the
defendant.”). Furthermore, the district court charged the jury
that each defendant’s statements were to be considered with
regard only to the guilt of the defendant who made the
statement. See Richardson v. Marsh, 481 U.S. 200, 211 (1987)
(holding that redaction of co-defendant’s confession, in
conjunction with proper limiting instruction, prevented Bruton
violation).
VII.
Appellants next maintain that, as a matter of law, the
jury’s not-guilty verdict on Count Two precluded conviction on
Count Three. That is incorrect. It is well established that
“inconsistent jury verdicts do not call into question the
validity or legitimacy of the resulting guilty
verdicts.” United States v. Green, 599 F.3d 360, 369 (4th Cir.
2010). Although Appellants cite the doctrine of collateral
estoppel as support for their position, that doctrine applies
only when a factual issue has been determined by a valid and
final judgment in a prior action between the same
parties. See Ashe v. Swenson, 397 U.S. 436, 443 (1970). It
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does not apply to inconsistent jury verdicts in a single
trial. See United States v. Powell, 469 U.S. 57, 68 (1984).
VIII.
Appellants also argue that the district court erred in
refusing to give the jury a special verdict form offered to the
court by Anderson. We review a district court’s refusal to
submit a special verdict form requested by a defendant for abuse
of discretion. See United States v. Udeozor, 515 F.3d 260, 270-
71 (4th Cir. 2008). We find no abuse here.
Although Anderson’s special verdict form is not
included in the joint appendix, it appears from the record that
the form indicated that if the jury found a defendant not guilty
on some accounts, it was required to find him not guilty on
others. Appellants maintain that the district court’s refusal
to use this form “prevented the court from correctly analyzing
the Count 2 acquittal’s effect as a predicate offense on the
Count 3 conviction.” Appellants’ brief at 66. As we have
explained, however, a jury’s verdict on one count does not have
a preclusive effect on any other count. The district court was
therefore well within its discretion in refusing to employ
Anderson’s form and in having the jury consider the counts
separately.
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IX.
Appellants also contend that the district court erred
in admitting grand jury testimony as prior consistent
statements. We review for abuse of discretion a district
court’s decision to admit evidence. See United States v.
Lighty, 616 F.3d 321, 351 (4th Cir. 2010). We discern no abuse
of discretion here. When an adverse party uses cross-
examination to point out apparent inconsistencies between a
witness’s grand jury testimony and his trial testimony, as
happened in this case, the “doctrine of completeness” permits
the government to attempt to rehabilitate the witness through
use of other portions of the grand jury testimony consistent
with the witness’s trial testimony to the extent necessary to
prevent “misunderstanding or distortion.” United States v.
Hedgepeth, 418 F.3d 411, 422 (4th Cir. 2005) (internal quotation
marks omitted).
X.
Appellants next argue that the district court erred in
denying their motion to vacate the guilty verdicts on Counts One
and Three because of the government’s failure to timely disclose
approximately 70 pages of Bureau of Alcohol, Tobacco, Firearms
17
and Explosives reports. The decision of a district court
regarding what sanction, if any, to impose for a discovery
violation, is reviewed for abuse of discretion. See United
States v. Hastings, 126 F.3d 310, 316 (4th Cir. 1997). We
conclude that the district court was well within its discretion
in denying Appellants’ motion.
In so doing, the district court observed that the
pages at issue were made available for review 11 days prior to
trial and that Appellants had adequate time to review them
before trial. Additionally, the court noted that it was
represented to the court that Williams’ attorney actually did
review them at the United States Attorney’s Office and that
defense counsel had divided document reviewing responsibilities
and shared the information they obtained from their reviews.
The court added that although Appellants contend that the pages
were Brady material, see Brady v. Maryland, 373 U.S. 83 (1963),
they did “not even approach the level of materiality necessary
for Brady to be implicated.” J.A. 1563. On appeal, the
Appellants offer no significant challenge to any of the district
court’s analysis.
XI.
In sum, finding no error, we affirm the Appellants’
convictions and sentences. We dispense with oral argument
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because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid in
the decisional process.
AFFIRMED
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