United States v. Hunter ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4259
DWIGHT LAMONT HUNTER, a/k/a Dee,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-94-111-MU)
Submitted: September 30, 1998
Decided: October 29, 1998
Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Dur-
ham, North Carolina, for Appellant. Mark T. Calloway, United States
Attorney, Robert J. Conrad, Jr., Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dwight Lamont Hunter appeals his conviction by a jury of conspir-
acy to possess with intent to distribute cocaine and crack cocaine in
violation of 21 U.S.C. § 846 (1994). See also 21 U.S.C. § 841(a)
(1994). Hunter played a pivotal role in a conspiracy to distribute crack
cocaine in and around Kannapolis, North Carolina. Raphael Ulloa, a
New York crack cocaine dealer, supplied hundreds of kilograms of
crack cocaine to Hunter in weekly multi-kilogram quantities. The tes-
timony of Hunter's "lieutenants," Steve Whitaker, James Nance, and
Bernard Adams described the enormous scope and detailed operations
of the conspiracy.
On this testimony, and that of numerous others, the jury found
Hunter guilty of the conspiracy charge. Over Hunter's objections, the
district court adopted the presentence investigation report's recom-
mendation that Hunter receive a two-level enhancement under U.S.
Sentencing Guidelines Manual § 3C1.1 (Nov. 1994) and a four-level
enhancement under USSG § 3B1.1(a). In addition, the district court
found that it had no discretion to depart from the Guideline-mandated
life sentence based on Hunter's contention that as he grew older serv-
ing his sentence, he would be less likely to commit more crime upon
his release. On its conclusion that it lacked this discretion, the district
court sentenced Hunter to life in prison.
In this appeal, Hunter makes numerous assignments of error both
with respect to his conviction and his sentence. Hunter contends that
the district court erred in failing to suppress the results of the execu-
tion of a search warrant and in failing to suppress evidence of tele-
phone numbers taken from his pager without a warrant. Hunter also
claims that the district court erred by admitting hearsay evidence and
failing to instruct the jury on multiple conspiracies. In attacking his
sentence, Hunter assigns error to the district court's application of a
2
two-level enhancement for obstruction of justice and a four-level
enhancement for his role in the offense. Hunter also suggests that the
district court erred in failing to make a downward departure from his
life sentence. Finally, Hunter generally attacks the Guidelines Manu-
al's disparate treatment of crack cocaine and powder cocaine. Finding
no merit to any of these assignments of error, we affirm the district
court's judgment and sentence.
I
Hunter first attacks the district court's denial of his motion to sup-
press the results of a search pursuant to a warrant issued for a house
at 112 Waco Avenue in Kannapolis, North Carolina. Hunter notes that
the affidavit did not contain information specifically linking drug
activity to the house at 112 Waco Avenue. See, e.g., United States v.
Ramos, 923 F.2d 1346, 1352 (9th Cir. 1991). Moreover, the affidavit
did not mention 112 Waco Avenue. The district court denied Hunter's
motion to suppress the single Western Union receipt seized during
that search, concluding that the officers who executed the search
relied on the warrant in good faith. See United States v. Leon, 468
U.S. 899, 920 (1984). Explaining the good faith exception, the
Supreme Court held that evidence seized under a facially invalid
search warrant will be suppressed "only if the officers were dishonest
or reckless in preparing their affidavit or could not have harbored an
objectively reasonable belief in the existence of probable cause." Id.
at 926. We review de novo the determination of the district court that
the good faith exception to the exclusionary rule applies. See United
States v. George, 975 F.2d 72, 77 (2d Cir. 1992).
This good faith exception is not all-inclusive. A warrant that is
"based on an affidavit that was so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable" is
insufficient to support a finding of good faith, and any evidence
received pursuant to that warrant must be excluded. United States v.
Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995) (citing Leon, 468 U.S.
at 923). The district court concluded that the omission of any refer-
ence to the target residence of the search warrant was a mere technical
omission. However, the affidavit's complete failure to mention 112
Waco Avenue necessitates a reliance on the subjective knowledge of
the executing officer that Hunter, as the target of the investigation and
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subject of the affidavit, kept at least a part-time residence at 112
Waco Avenue. This reliance renders it difficult to conclude that the
executing officers possessed an "objectively reasonable" belief in the
existence of probable cause to search a dwelling not mentioned in the
affidavit supporting the search warrant.
Even assuming this flaw in the warrant places the officers' actions
in executing the warrant outside the good faith exception to the exclu-
sionary rule, the admission of the evidence obtained from 112 Waco
Avenue does not mandate reversal of Hunter's conviction. The admis-
sion of illegally seized evidence is subject to a harmless error review.
See Franks v. Delaware, 438 U.S. 154, 162 (1978); United States v.
Rude, 88 F.3d 1538, 1553 (9th Cir. 1996), cert. denied, ___ U.S. ___,
65 U.S.L.W. 3465 (U.S., Jan. 6, 1997) (No. 96-780). For the assumed
error in this case to be harmless, the Government must prove beyond
a reasonable doubt that the single Western Union receipt seized and
introduced into evidence did not contribute to the guilty verdict. See
United States v. McCloud, 127 F.3d 1284, 1289 (10th Cir. 1997) (cit-
ing Chapman v. California, 386 U.S. 18, 24 (1967)).
Hunter contends that the Government cannot shoulder this burden
because the receipt was necessary to corroborate the testimony of
prosecution witnesses who testified regarding the flow of drug money
in the conspiracy. Instead of being the "important corroboration" that
Hunter suggests that it was, the receipt seized from 112 Waco Avenue
was merely one of fourteen Western Union receipts introduced into
evidence. Even in the absence of that receipt, there was ample evi-
dence regarding the flow of money through the conspiracy. There
were thirteen other Western Union receipts providing corroboration
for testimony regarding the funding of the drug purchases. The four-
teenth receipt merely provided incremental support for the Govern-
ment's witnesses' credibility. As a result, we have no difficulty
concluding beyond a reasonable doubt that the introduction of the sin-
gle receipt seized in the search did not contribute to the guilty verdict.
Assuming the district court erred in declining to suppress the evi-
dence, that error was harmless.
Hunter next objects to the district court's ruling regarding the testi-
mony of Detective John Roberts. At one point during his testimony,
Detective Roberts stated that one of Hunter's co-conspirators, James
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Nance, had informed him where Nance and Hunter stored their
cocaine in the latter stages of the conspiracy to conceal it from the
authorities. Hunter claims that the statement was inadmissible hearsay
because Nance's statement was not in furtherance of his conspiracy
with Hunter. See Fed. R. Evid. 801(d)(2)(E). A district court's eviden-
tiary rulings should not be disturbed absent an abuse of discretion. See
United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). An
abuse of discretion might arise if a district court bases its ruling on
erroneous factual or legal premises. See James v. Jacobson, 6 F.3d
233, 239 (4th Cir. 1993). The district court did not abuse its discretion
in admitting this evidence.
It bears repeating that hearsay is "a statement, other than one made
by the declarant while testifying . . ., offered in evidence to prove the
truth of the matter asserted." Fed. R. Evid. 801(c). As the Government
points out, this statement was not offered "to prove the truth of the
matter asserted," but to provide an explanation for Detective Roberts'
decision to search the location that Nance described. The truth of
Nance's statement was borne out not only by Nance's own testimony
regarding the location for storing cocaine, but also by the fact that
Detective Roberts found exactly what Nance had described where
Nance said it would be. The district court's ruling was not based on
erroneous factual or legal premises.
Hunter next claims that the district court erred in denying his
motion to suppress evidence of the telephone numbers the arresting
officers discovered stored in Hunter's pager. The officers seized the
pager when they arrested Hunter. Before his arrest, Hunter presum-
ably had a reasonable expectation of privacy in the contents of the
pager's memory. See United States v. Chadwick , 433 U.S. 1, 10-11
(1977). However, after his arrest, the contours of Hunter's rights are
somewhat different. They are tempered by an arresting officer's need
to preserve evidence. This need is an important law enforcement com-
ponent of the rationale for permitting a search of a suspect incident
to a valid arrest. See United States v. Robinson , 414 U.S. 218, 226
(1973). Because of the finite nature of a pager's electronic memory,
incoming pages may destroy currently stored telephone numbers in a
pager's memory. The contents of some pagers also can be destroyed
merely by turning off the power or touching a button. See, e.g.,
United States v. Frost, 999 F.2d 737, 739 (3d Cir. 1993); United
5
States v. Meriwether, 917 F.2d 955, 957 (6th Cir. 1990). It is, there-
fore, imperative that law enforcement officers have the authority to
immediately "search" or retrieve, incident to a valid arrest, informa-
tion from a pager in order to prevent its destruction as evidence. See
United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The motion
to suppress was properly denied.
Hunter cites United States v. Sanchez, 32 F.3d 1002, 1004 (7th Cir.
1994), for the proposition that the arresting officers in this case were
required to obtain a warrant to retrieve the telephone numbers from
the memory of the seized pager. In that case, the Seventh Circuit only
reported that the agents did, in fact, obtain a warrant. The court did
not hold that the warrant was required by the Fourth Amendment.
Furthermore, the Seventh Circuit has since expressedly held that the
exigent circumstances surrounding the potentially fleeting nature of
the evidence contained in a pager justifies a warrantless "search" of
the contents of the pager. See Ortiz, 84 F.3d at 984. The retrieval of
telephone numbers from Hunter's pager was justified by the need to
preserve evidence. As a result, the district court did not err in declin-
ing to suppress this evidence.
Hunter next contends that the district court erred by refusing to
instruct the jury that the Government had the burden of proving the
single conspiracy alleged in the indictment rather than a number of
multiple conspiracies. There is no merit to this contention. A single
conspiracy exists when there is "one overall agreement" or "one gen-
eral business venture." United States v. Leavis, 853 F.2d 215, 218 (4th
Cir. 1988) (citations omitted). Whether the evidence at trial estab-
lished a single conspiracy or multiple conspiracies is normally an
issue for jury determination, see United States v. Banks, 10 F.3d 1044,
1051 (4th Cir. 1993), dependent on the overlap of geographic area,
key actors, methods, and goals. See United States v. Crockett, 813
F.2d 1310, 1317 (4th Cir. 1987).
Defendants are not automatically entitled to an instruction about
multiple conspiracies. "If the facts support only a single conspiracy,
the jury need not be instructed about multiple conspiracies." Id. at
1316 (citations omitted). In addition, the failure to give a jury instruc-
tion on multiple conspiracies, even if the evidence supports such an
instruction, is not reversible error unless a defendant can show he was
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involved in a separate conspiracy unrelated to the overall conspiracy
charged in the indictment. See United States v. Howard, 115 F.3d
1151, 1157 (4th Cir. 1997); United States v. Kennedy, 32 F.3d 876,
884 (4th Cir. 1994). Under these principles, the district court did not
err in refusing to instruct on multiple conspiracies.
Hunter has provided little guidance, either to this court or the dis-
trict court, as to how exactly he was prejudiced by the failure of the
district court to instruct the jury on multiple conspiracies. Hunter
states only that Ulloa, his co-conspirator, headed"at least" two con-
spiracies. Considering the evidence in the light most favorable to the
verdict, see United States v. Urbanik, 801 F.2d 692, 695 (4th Cir.
1986), Hunter remained the center man of a conspiracy with the same
geographic area, key actors, methods, and goals. There is no evidence
that would suggest that Hunter was a member of a conspiracy entirely
distinct from the overall conspiracy charged in the indictments.
Accordingly, the failure to give a multiple conspiracy instruction is
not reversible error. See Howard, 115 F.3d at 1157; Kennedy, 32 F.3d
at 884. Because the facts supported only the existence of a single con-
spiracy, the district court did not err in refusing Hunter's requested
instruction.
II
In challenging his life sentence, Hunter first objects to the applica-
tion of a two-level enhancement for obstruction of justice applied to
his offense level under the U.S. Sentencing Guidelines Manual
§ 3C1.1 (Nov. 1994). The enhancement was based on Hunter's dis-
semination of discovery materials he obtained as a result of his prose-
cution to his co-conspirators and his misrepresentations to his
probation officer regarding his employment status which resulted in
his pretrial release. Hunter contends that the district court not only
failed to make the requisite findings of fact to apply the enhancement,
but also that his conduct was not sufficient to trigger § 3C1.1.
The record on appeal reflects that in response to the presentence
investigation report Hunter only objected to the application of
§ 3C1.1 to his conduct. There is no suggestion that Hunter disputed
the accuracy of the findings of the report regarding what his actions
were. Hunter's mere objection to the findings of the presentence
7
report with regard to this enhancement is insufficient to preserve any
challenge to its factual content. Rather, Hunter had an affirmative
duty to show that the information in the report was unreliable and
articulate the reasons why its facts are untrue or inaccurate. Without
such an affirmative showing, the district court is"``free to adopt the
findings of the [presentence report] without more specific inquiry or
explanation.'" United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990) (quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.
1990)). The record on appeal does not reflect Hunter's rationale for
suggesting the unreliable nature of the factual findings of the report
or that a single fact relating to this enhancement was untrue or inaccu-
rate.
As the determination of whether § 3C1.1 applies to the facts is a
legal issue, we review the district court's ruling de novo. See United
States v. Hicks, 948 F.2d 877, 884 (4th Cir. 1991). The section
instructs that "[i]f the defendant willfully obstructed or impeded . . .
the administration of justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense level by 2
levels." USSG § 3C1.1. The commentary to this section further
explains the types of conduct that do and do not warrant the enhance-
ment. In providing "a non-exhaustive list of examples of the types of
conduct to which this enhancement applies," Application Note 3
explains that, inter alia, the increase is triggered by conduct that
involves "providing materially false information to a probation officer
in respect to a presentence or other investigation for the court." USSG
§ 3C1.1 comment. (n.3(h)). Hunter paid Larry Caldwell to falsely
inform the probation officer that he employed Hunter during his
release on bond. This scheme to show his probation officer that he
had obtained gainful employment fell squarely within the application
note and qualified Hunter for the two-level enhancement.1
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1 Because the district court properly applied the two-level enhancement
as a result of this conduct, we need not consider whether Hunter's distri-
bution of discovery materials to his co-conspirators, resulting in their
attempting to change their distribution methods, also qualified Hunter for
an obstruction of justice enhancement. See United States v. Self, 132 F.3d
1039, 1043 (4th Cir. 1997) (stating enhancement does not apply where
defendant obstructs investigation of another individual's offense), cert.
denied, ___ U.S. ___, 66 U.S.L.W. 3705 (U.S., Apr. 27, 1998) (No. 97-
8
Hunter also challenges the calculation of his offense level by
claiming that the district court erred in applying a four-level enhance-
ment for his leadership role in the conspiracy. See USSG § 3B1.1(a).
Hunter suggests that because his associates in the conspiracy did not
receive similar enhancements, it would be "fundamentally unfair" to
impose the leadership enhancement to his sentencing calculus. The
determination that a defendant is an organizer or leader in an offense
is essentially a factual question reviewable for clear error. See United
States v. Harriott, 976 F.2d 198, 202 (4th Cir. 1992). Although the
finding must be articulated and supported by evidence, see id., the
court may address any of the relevant factors. See United States v.
Harris, 39 F.3d 1262, 1270-71 (4th Cir. 1994); see also USSG
§ 3B1.1 comment. (n.4). The testimony at trial showed that Hunter
recruited people into the conspiracy, received the cocaine for the
street-level distributors, received payments for the cocaine, and deter-
mined who would be actively distributing at any given time. There
was no clear error in assigning Hunter this enhancement. The fact that
his co-conspirators, who pled guilty, did not also receive an enhance-
ment does not suggest any error. The sentencing court need not con-
sider the sentence of a codefendant when imposing sentence. See
United States v. Foutz, 865 F.2d 617, 622 (4th Cir. 1989).
Hunter also contends that because Raphael Ulloa was the organizer
or leader of the conspiracy, Hunter should not have received a four-
level enhancement. The Guidelines specifically note that "[t]here can,
of course, be more than one person who qualifies as a leader or orga-
nizer." USSG § 3B1.1 comment. (n.4). Even assuming Ulloa was an
organizer or leader in this conspiracy, this does not preclude the dis-
trict court from applying the enhancement to Hunter. Because the dis-
trict court did not commit clear error, there is no reason to disturb the
court's sentencing calculation.
Hunter next challenges the district court's determination that it had
no discretion to depart from the guidelines range based on a lower
_________________________________________________________________
8510). But see United States v. Kirk, 70 F.3d 791, 797-98 (5th Cir. 1995)
(noting that conduct supporting enhancement need not be "related
directly to a particular offense."), aff'd en banc, 105 F.3d 997 (5th Cir.
1997), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3254 (U.S., Oct. 6, 1997)
(No. 96-7759).
9
likelihood of recidivism. Hunter claimed that because he would grow
older, and become less likely to commit crime as a result of his life
sentence, the district court should consider a departure. The denial of
a request for a downward departure is reviewable only if the district
court mistakenly believed that it lacked the authority to depart. See
United States v. Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992). In
this case, the district court stated that it lacked the authority to depart
downward on the ground of the inevitable fact that Hunter would
grow old during his service of a life sentence.
A downward departure may be warranted where the defendant's
criminal history "significantly over-represents .. . the likelihood that
the defendant will commit further crimes." USSG§ 4A1.3, p.s. That
is not the case here. Hunter argues that his sentence, life in prison, as
opposed to his criminal history, necessarily means that the likelihood
that he will commit future crimes is diminished. It is well established
that a sentencing court may depart from the applicable guideline
range where "the court finds that there exists an aggravating or miti-
gating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission." 18 U.S.C.A.
§ 3553(b) (West Supp. 1998). It cannot seriously be contended that
the Commission failed to take into account that a person serving a life
sentence would grow older during the course of that sentence. See,
e.g., USSG § 5H1.1. Accordingly, the district court did not err in con-
cluding that it lacked the discretion to depart as a result of Hunter's
life sentence.2 See generally United States v. Atkins, 116 F.3d 1566,
1570-71 (D.C. Cir. 1997) (disapproving of sentencing court's consid-
eration of defendant's age when released in granting downward
departure), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3337 (U.S., Nov.
10, 1997) (No. 97-6320).
Finally, Hunter claims that the district court erred in applying the
Guidelines provisions for crack cocaine. Hunter suggests that there is
no rational basis to support the disparity in penalty between crack
cocaine and powder cocaine and that the Guidelines provisions
_________________________________________________________________
2 Hunter directs the court's attention to United States v. Garrett, 712 F.
Supp. 1327 (N.D. Ill. 1989). The case is not binding precedent and is dis-
tinguishable on its facts. Garrett was not subject to a life sentence. See
id. at 1335.
10
regarding crack cocaine are racially discriminatory. As counsel con-
cedes, we have previously rejected Hunter's position. See United
States v. Banks, 130 F.3d 621, 626 (4th Cir. 1997) (regarding rational
basis), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3655 (U.S., Apr. 6,
1998) (No. 97-8221); United States v. Hayden, 85 F.3d 153, 157-58
(4th Cir. 1996) (same); United States v. Johnson , 54 F.3d 1150, 1163
(4th Cir. 1995) (noting increased penalty not racially discriminatory);
United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir. 1994) (rejecting
argument based on equal protection); United States v. Bynum, 3 F.3d
769, 774-75 (4th Cir. 1993) (same). We have also previously rejected
Hunter's contention that the definition of crack cocaine is unconstitu-
tionally vague. See United States v. Pinto, 905 F.2d 47, 49-50 (4th
Cir. 1990).
III
Finding no merit to any of Hunter's assignments of error, either at
trial or in sentencing, we affirm the district court's judgment and sen-
tence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and would not aid the decisional process.
AFFIRMED
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