United States v. Kelly ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5631
SAMUEL BENJAMIN KELLY, a/k/a Tiz,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5632
JOHN AUSTIN EDWARDS, a/k/a
Doquan Cooper, a/k/a Shakim,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5633
JEFFREY MAILLARD, a/k/a Spice,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5634
CAMILLE FORD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5635
ANTHONY MERRICK, a/k/a C,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5636
MORRIS EUGENE HAYES, a/k/a Easy,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-94-163)
Argued: November 1, 1996
Decided: February 26, 1997
Before HALL and LUTTIG, Circuit Judges, and THORNBURG,
United States District Judge for the Western District
of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond,
Virginia; James O. Broccoletti, ZOBY & BROCCOLETTI, Norfolk,
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Virginia; Melvin J. Radin, Norfolk, Virginia, for Appellants. Laura
Pellatiro Tayman, Assistant United States Attorney, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Cary B. Bowen, BOWEN &
BOWEN, Richmond, Virginia, for Appellant Hayes; Milton B.
Widenhouse, Jr., FEDERAL PUBLIC DEFENDER'S OFFICE,
Raleigh, North Carolina, for Appellant Merrick; Kenneth Bruce Wil-
lis, Norfolk, Virginia, for Appellant Maillard. Helen F. Fahey, United
States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Between 1989 and 1994, Robert Gillins established and operated
a drug trafficking enterprise based principally in New York City with
distribution points in various cities in the eastern United States. Gil-
lins' brother-in-law, appellant Samuel Kelly, operated a drug traffick-
ing enterprise in Richmond, Virginia, which merged with Gillins'
enterprise in 1993. Appellant Jeffrey Maillard managed Gillins' drug
operations in Philadelphia, Pennsylvania. Gillins, Kelly, and Paul
Ebanks (co-organizer for the enterprise's operations in Norfolk, Vir-
ginia) recruited associates in New York City to work as distributors,
bodyguards, enforcers and couriers for the enterprise's crack cocaine
distribution. The record establishes that the enterprise obtained
approximately 20 kilograms of cocaine per week, to be cooked into
crack cocaine and distributed by the organization in the Tidewater and
Richmond areas of Virginia; Philadelphia; Baltimore; Charlotte; and
Columbia, South Carolina. J.A. at 894-95. The record also evidences
the enterprise's fondness for weaponry and propensity for violence.
On December 2, 1994, a federal grand jury in Norfolk indicted 21
defendants for conspiracy to distribute crack cocaine and cocaine and
related offenses. Appellant Samuel Kelly was charged with conspir-
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acy to distribute crack cocaine and cocaine, operating a continuing
criminal enterprise, possession with intent to distribute two kilograms
of crack cocaine, and conspiracy to commit money laundering.
Appellants John Edwards, Jeffrey Maillard, Camille Ford, Anthony
Merrick and Morris Eugene Hayes were each charged with conspir-
acy to distribute crack cocaine and cocaine. Several of the other
defendants, including Robert Gillins, pleaded guilty to various
offenses and agreed to cooperate with the government.
At the conclusion of the trial, the jury returned a verdict finding
Samuel Kelly, John Edwards, Jeffrey Maillard, Camille Ford,
Anthony Merrick and Morris Eugene Hayes guilty of conspiracy to
distribute crack cocaine and cocaine. Samuel Kelly was also found
guilty of operating a continuing criminal enterprise and conspiracy to
commit money laundering, but found not guilty of possession with the
intent to distribute two kilograms of crack cocaine. Two other defen-
dants, Alfred Cleveland and James Cousins, were found not guilty by
the jury.
Appellants raise thirteen arguments challenging their convictions,
none of which is meritorious.
I.
During voir dire, prospective juror Samuel Bracey indicated that
his son had been prosecuted for conspiracy. Although Bracey stated
that he thought that he could decide the case fairly, he also declared
that he thought the law of conspiracy was unfair and admitted that he
felt hostility toward the court because his son's probation had been
revoked. J.A. at 147-49. Judge Smith removed Bracey for cause.
A district court's determination to excuse a juror for cause is enti-
tled to "special deference." Patton v. Yount, 467 U.S. 1025, 1038
(1984). The district court conducted a particularized inquiry into
Bracey's ability to serve impartially and correctly excused Bracey
because of Bracey's stated hostility toward the court in question
regarding the very law to be applied in this case.
II.
Appellants argue that government agents' notes from the debriefing
of Paul Ebanks constituted Jencks Act "statements" that had to be
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produced upon request. The Jencks Act defines "statement" in rele-
vant part as "a written statement made by said witness and signed or
otherwise adopted or approved by him." 18 U.S.C.§ 3500(e)(1). The
agents' notes were not transcriptions, nor were they approved by
Ebanks. Rather, the agents merely asked follow-up questions for clar-
ification or to ensure that their notes were correct. Ebanks himself tes-
tified to that effect: "Like I talk street, and I mean they would have
to ask it back to me sometimes, though, to make sure I had the proper
-- they had the proper language, the proper communication. I might
say something in the street, and they wouldn't understand, and they
would ask it back to me." J.A. at 371.
The agents' requests for clarification, even when met with confir-
mation from Ebanks, cannot be classified as adoption or approval of
a statement. As this court has recently stated,"a government agent's
interview notes that `merely select[ ] portions, albeit accurately, from
a lengthy oral recital' do not satisfy the Jencks Act's requirement of
a `substantially verbatim recital.'" United States v. Roseboro, 87 F.3d
642, 645 (4th Cir. 1996), quoting Palermo v. United States, 360 U.S.
343, 352 (1959). Furthermore, even if the notes did constitute a "sub-
stantially verbatim recital," they did not become the witness' state-
ment unless the witness read them or the agent read them to him. Id.This requirement is not satisfied where, as here, the agent only read
back occasional excerpts for clarification. Therefore, the district court
did not err in concluding that the notes were not producible as Jencks
Act material.
III.
Appellants also argue that the district court erred in overruling their
objections to the prosecution's closing argument rebuttal.
During trial, defense counsel cross-examined government wit-
nesses regarding alleged omissions in their grand jury testimony and
debriefing statements and later commented on these alleged omissions
during closing arguments. In response, the prosecution stated during
rebuttal that "a witness is not impeached if a question was not previ-
ously asked." J.A. at 1382. The prosecution continued by urging the
jury to "keep in mind that the grand jury presentation of their testi-
mony is a condensed version of the debriefing process, and it is
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entirely possible, if not probable . . . that the question was not asked
of the witness when he appeared before the grand jury, or the question
was not even asked perhaps when he was debriefed initially." J.A. at
1382-83. Defendants argue that these comments constituted improper
opinion and involved matters not in evidence before the jury. How-
ever, these responses to the defense attorneys' arguments were appro-
priate commentary upon the absence of contradictory or inconsistent
prior statements by government witnesses.
Defendants also argue that it was improper for the prosecutor to
note during closing argument that each of the eight defendants was
represented by an attorney, and that if the "client's interests are served
by trying to mislead or confuse . . . within the limits of the law, that
is [the attorney's] job, and that is what he is going to do." J.A. at
1402. Defendants argue that this comment violated due process and
punished defendants for exercising their right to counsel. Even assum-
ing that this comment constituted error, such error clearly did not "so
prejudice[ ] the trial process as to require reversal." United States v.
Harrison, 716 F.2d 1050, 1051 (4th Cir. 1983). This court's test for
such prejudice consists of four factors:
(1) the degree to which the prosecutor's remarks have a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
Id. at 1052. Each of these four factors weighs heavily against a find-
ing of prejudice.
Therefore, the district court did not commit reversible error in
overruling defendants' objections to the prosecution's closing argu-
ment rebuttal.
IV.
Appellants object to the district court's admission of evidence
regarding: (1) the February 1992 murder of Gregory Woodward; (2)
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a meeting called by Robert Gillins, in July 1992 in Philadelphia; (3)
a meeting of the co-conspirators on New Years Eve of 1992 in New
York City; (4) a meeting of the co-conspirators in Spring of 1993 in
Baltimore; and (5) evidence that Robert Gillins had threatened
Anthony Moore, a government witness. Each of the first four inci-
dents is relevant and probative to establishing the existence of con-
spiracy between the defendants and others to violate the federal
narcotics laws, and to establishing the elements of the continuing
criminal enterprise charged in Count Two. The fifth, evidence that
Robert Gillins had threatened a government witness, was relevant to
the witness' credibility. The admission of the testimony in question
certainly did not constitute a "clear abuse of discretion" requiring
reversal. United States v. Russell, 971 F.2d 1098, 1104 (4th Cir.
1992).
V.
Appellants John Edwards and Jeffrey Maillard argue that the evi-
dence was insufficient to support their convictions for conspiracy to
distribute narcotics. Under United States v. Brooks, 957 F.2d 1138(4th Cir. 1992):
Once it has been shown that a conspiracy exists, the evi-
dence need only establish a slight connection between the
defendant and the conspiracy to support conviction. A
defendant need not have knowledge of his coconspirators, or
knowledge of the details of the conspiracy. And a defendant
may be convicted despite having played a minor role in the
overall conspiracy.
Id. at 1147. Coupled with this broad definition of conspiracy is the
very deferential standard of review for sufficiency of the evidence
claims. The question on appeal is "whether, viewing the evidence in
the light most favorable to the government, any rational trier of facts
could have found the defendant[s] guilty beyond a reasonable doubt."
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This
standard is easily met with regard to both Edwards and Maillard.
The abundant evidence against the two men need not be recited in
full. Representative of the evidence against Edwards is that Ebanks
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testified that Ivan Gibson asked Edwards "if he could sell some drugs
down there [in Ohio], and [Edwards] said it was okay, there was no
problem." J.A. at 188. Similarly, representative of the evidence
against Maillard is the testimony that Maillard provided false identifi-
cation documents for Paul Ebanks, Robert Gillins, and Pete Johnson,
J.A. at 592-93, and the testimony that William Lisby and Terrance
James delivered kilogram quantities of crack cocaine to Maillard for
the Philadelphia operation, J.A. at 682-84, 880.
VI.
Appellants offer a bevy of additional arguments, none of which is
meritorious.
Appellants argue that the district court effectively directed a verdict
against them by telling the jury that the defendants should be found
guilty of conspiracy if they sold drugs for profit. This argument fails
because the court actually responded to the jury's question regarding
whether a buyer is part of a conspiracy if he sells drugs for profit by
telling the jury that such a buyer is part of a conspiracy "provided the
elements of instruction 20 are met." J.A. at 1432. Therefore, the dis-
trict court did not, as appellants argue, tell the jury that selling drugs
for profit is sufficient for a conspiracy conviction.
Appellant Ford challenges the amount of drugs which the district
court attributed to her. However, it was not clearly erroneous for the
district court to conclude, "based upon the trial testimony, [the district
court's] review of [its] notes, and in particular Mr. Lisby and Mr.
Wilmot's testimony, as bolstered by the other witnesses," that Ms.
Ford was responsible for 31 kilograms of powder cocaine. J.A. at
1505-06.
Appellants also argue that the 100 to 1 sentencing ratio of cocaine
base to cocaine powder violates the Equal Protection Clause because
it has a disproportionate impact on the black population. We have
explicitly held, however, that this alleged disparity does not violate
the Equal Protection Clause. United States v. Wallace, 22 F.3d 84, 88
(4th Cir. 1994).
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Appellant Anthony Merrick contends that his three prior convic-
tions from New York should be counted as only one offense because
they "were consolidated for trial or sentencing." U.S.S.G. § 4A1.2,
appl. note 3. However, Merrick's prior cases were heard on the same
date only because of a "backlog in New York." J.A. at 1458. The dis-
trict court noted that the prior offenses resulted in separate convic-
tions and separate sentences and that no order of consolidation had
been entered. J.A. at 1460-61. The mere fact that the cases were heard
on the same day does not constitute consolidation.
Appellant Merrick also argues that the district court erred in not
granting him a two point reduction for being only a minor participant
in the conspiracy. Merrick argues that he was a"mere courier." How-
ever, the district court noted that Merrick "is personally responsible
for 194.06 kilograms of crack cocaine, was a bodyguard carrying a
firearm for the major distributor for the organization in Richmond,
and furthermore, operated in this conspiracy from August of 1990
through February of 1991, and May of 1993 through January of
1994." J.A. at 1448. The district court's conclusion was not clearly
erroneous.
Finally, appellant Samuel Kelly argues that his simultaneous crimi-
nal prosecution and forfeiture constitutes double jeopardy. However,
review of claims of double jeopardy in a single proceeding "is limited
to ensuring that the total punishment did not exceed that authorized
by the legislature." United States v. Halper, 490 U.S. 435, 450
(1989). Kelly presents no evidence that his punishment exceeded that
authorized by Congress.
CONCLUSION
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED.
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