United States v. Savage ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4758
THORNTON DAVID SAVAGE, IV,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-97-14-F)
Submitted: October 30, 1998
Decided: November 17, 1998
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Anthony E. Flanagan, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Thornton David Savage, IV, was convicted following a jury trial
of aiding and abetting the uttering of counterfeit obligations, in viola-
tion of 18 U.S.C. §§ 2, 472 (1994). He timely appeals, contending that
the district court erred in permitting Brian Darrell Johnson, the Gov-
ernment's chief witness, to confer with his attorney in the midst of
testifying. Finding no error, we affirm.
Savage contends that Johnson's conference with his attorney, who
observed at least part of the trial, necessarily influenced and shaped
Johnson's subsequent testimony because Johnson's testimony after
the conference was markedly different from his testimony before the
conference. Savage asserts that the meeting violated Fed. R. Evid. 615,1
which provides that upon request of a party, the court must order
sequestration of witnesses during trial. Savage asserts that the court's
sequestration order prohibited Johnson from discussing his testimony
with his attorney while testifying. Savage contends that, but for the
court's error in allowing the meeting to occur, he would have been
acquitted because the evidence against him was "thin."
Savage concedes that because he failed to object to this alleged
error at trial, our review is only for plain error. See United States v.
Olano, 507 U.S. 725, 730 (1993); see also Fed. R. Crim. P. 52(b). A
defendant is entitled to relief under Rule 52(b) if an error occurred
which (1) was plain, that is, is clear under current law, (2) prejudiced
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1 Rule 615 provides that: "[a]t the request of a party the court shall
order witnesses excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion." Fed. R. Evid.
615; see United States v. McMahon, 104 F.3d 638, 641-42 (4th Cir.
1997) (finding that Rule 615 is violated if a witness obtains information
about a prior witness's testimony from a third party).
2
him, and (3) "seriously affect[ed] the fairness, integrity or public rep-
utation of judicial proceedings." Olano, 507 U.S. at 732 (citation and
internal quotation omitted).
Savage and an accomplice, Brian Darrell Johnson, passed counter-
feit $20 bills at numerous businesses in Jacksonville, North Carolina,
on February 3, 1997. Johnson pleaded guilty to possession of counter-
feit $20 bills and, as part of the written plea agreement, agreed to tes-
tify on behalf of the Government at Savage's trial. Initially, Johnson
testified that in early February 1997, he traveled to Philadelphia and
purchased more than $2000 in counterfeit $20 bills. He stated that on
February 3, 1997, he and a female companion, Kashema Peebles,
went to a shopping mall in Jacksonville and to various fast food res-
taurants to pass the counterfeit bills. He initially testified that no one
else accompanied them to the mall.
Because Johnson's testimony contradicted his prior statements, the
prosecutor asked whether Johnson had spoken to Savage over lunch
earlier that day. Johnson admitted that he had. After the prosecutor
obtained permission to voir dire Johnson, but before questioning
began, the court permitted Johnson's attorney to speak with Johnson
privately. Counsel intimated that he wished to advise Johnson of any
potential problems that might arise from Johnson's testimony. The
court advised counsel that it would be in Johnson's best interest if
counsel advised Johnson of the consequences of being less than truth-
ful or less than forthcoming while testifying.
After Johnson's conference with his attorney, Johnson's testimony
was markedly different. He recanted his previous testimony that only
he and Peebles went to the mall and testified that he, Savage, Peebles,
and a woman named Tabou went to the mall. Johnson stated that he
showed Savage the counterfeit money. Johnson gave $20 to Peebles
to pass at a store in the mall. Afterwards, Johnson and Savage went
to Dunkin Donuts, Burger King, McDonald's, Taco Bell, Bojangle's,
and Kentucky Fried Chicken, where Johnson passed counterfeit $20
bills. Johnson testified that he did not actually see Savage pass any
counterfeit money. Johnson, however, did testify that Savage had
access to the money which was kept in the car, and Savage knew that
Johnson had counterfeit bills that he was passing in the stores and res-
taurants.
3
We find that the district court did not plainly err in allowing coun-
sel to confer with Johnson in the midst of his testimony. The record
does not support a conclusion that counsel informed Johnson of any
other witness's testimony during their conference, thus violating the
sequestration order. Only after Johnson began testifying in a manner
inconsistent with his prior statements did counsel request to confer
with Johnson, presumably to apprise him of the criminal penalties he
faced if he testified falsely and to remind him of his obligations under
the plea agreement.
Even if the district court erred in allowing counsel to confer with
Johnson and that this error was sufficiently clear to satisfy plain-error
analysis, we conclude that Savage has not shown that the error
affected his "substantial rights." See Olano, 507 U.S. at 732-36. In
most contexts, a defendant's substantial rights are considered to be
affected only if he suffered prejudice.2 The defendant has the burden
of demonstrating prejudice on appeal. See Olano , 507 U.S. at 734;
Fed. R. Crim. P. 52(b). Savage has not shown that he was prejudiced
by the district court's actions because, even excluding Johnson's testi-
mony, the trial outcome was not likely to have been different.
Peebles testified that Savage gave her $20 bills to make purchases
at various businesses. After several purchases had been completed,
Johnson informed Peebles that the money was counterfeit. Peebles
and her brother, Germaine Davis, went to Johnson's and Savage's
apartment in order for Davis to purchase counterfeit $20 bills. Davis
and Johnson agreed on the exchange, and Savage retrieved the coun-
terfeit money from a rear bedroom. Savage and Johnson also showed
Davis how to pass the counterfeit money. When Davis went to Sav-
age's apartment to purchase more counterfeit money, he was making
an undercover purchase as a confidential informant for the police.
After being regaled with stories of how Johnson and Savage nearly
were apprehended passing counterfeit $20 bills, Johnson agreed to
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2 The Supreme Court in Olano expressly declined to consider whether
the phrase "affecting substantial rights" is always "synonymous with
``prejudicial.'" Olano, 507 U.S. at 735. Rather, the Court speculated that
"[t]here may be a special category of forfeited errors that can be cor-
rected regardless of their effect on the outcome," such as structural
errors. Id.4
sell Davis additional counterfeit money. Moreover, a tape recording
of the controlled buy confirmed that Savage was not only present at
the sale but he also demonstrated to Davis how to pass the counterfeit
money. In addition, a search of Savage's bedroom revealed the genu-
ine money that Davis used to purchase the counterfeit money during
the controlled undercover buy, along with denominations of genuine
money consistent with making repeated small purchases with $20
bills. Further, the serial numbers from the counterfeit money, which
Savage stored in a neighbor's apartment, were consistent with the
serial numbers of the counterfeit money passed at the stores and res-
taurants. Accordingly, we conclude that any error in the admission of
Johnson's testimony did not affect the outcome of the trial. See
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (in banc) (aiding and abet-
ting requires defendant to knowingly associate himself with and par-
ticipate in criminal venture), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3586 (U.S. Feb. 24, 1997) (No. 96-6868). Because the court's alleged
error does not affect Savage's substantial rights, it cannot constitute
plain error under Rule 52(b).
Accordingly, we affirm Savage's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
significantly aid in the decisional process.
AFFIRMED
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