United States v. Richardson ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAUHEEDAH RICHARDSON,
Defendant - Appellant.
No. 04-4122
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICARDO DINNALL,
Defendant - Appellant.
No. 04-4128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRUCE OKELLO JOSEPH, a/k/a Okello Bruce
Joseph,
Defendant - Appellant.
No. 04-4163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LIONEL STAINE,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-02-60-H)
Argued: March 18, 2005 Decided: April 15, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Richard Clarke Speaks, Wilmington, North Carolina; Lewis
Alston Thompson, III, BANZET, BANZET & THOMPSON, Warrenton, North
Carolina; James M. Ayers, II, New Bern, North Carolina, for
Appellants. Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: W. Gregory Duke, BLOUNT & DUKE, Greenville,
North Carolina, for Appellant Ricardo Dinnall. Frank D. Whitney,
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Defendants-appellants Tauheedah Richardson, Ricardo Dinnall,
Bruce Joseph, and Lionel Staine were convicted in federal district
court of conspiracy to distribute and to possess with the intent to
distribute more than 50 grams of cocaine base, a quantity of
cocaine, and a quantity of marijuana. Staine and Dinnall were
convicted of conspiracy to unlawfully kidnap a person, and Joseph
was convicted of traveling in interstate commerce with intent to
promote the drug conspiracy. Appellants challenge their
convictions and sentences. For the reasons that follow, we affirm
appellants’ convictions, but vacate their sentences and remand for
resentencing consistent with United States v. Booker, 125 S. Ct.
738 (2005).
I.
Appellants were tried at a single trial, at which the
government presented extensive evidence linking them to a larger
drug conspiracy. A former member of the conspiracy, Rodney Pender,
testified that he was affiliated with both Staine and Dinnall, and
that both men sold crack cocaine in New Bern, North Carolina. J.A.
171-72. Pender also testified that Richardson helped transport
cocaine between New York and North Carolina. J.A. 177-78.
Finally, Pender testified that Joseph transported cocaine from New
York City to North Carolina, transferred the cocaine to Staine, and
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Staine gave it to Pender, who would “cook it” to convert it into
crack.1 J.A. 178-79, 184. Other witnesses confirmed defendants’
involvement with the drug conspiracy. See, e.g., J.A. 241, 536-37,
562-65.
Testimony also linked Staine and Dinnall to the kidnapping of
Rodney Fisher, who was murdered by his kidnappers. Pender
testified that Dinnall told Pender that Dinnall had participated in
abducting Fisher. J.A. 169-70. Pender also testified that Staine
was present when Fisher was murdered and supplied the gun for his
murder. J.A. 162-64.
At the conclusion of the government’s case, the district court
denied the defendants’ motion for a judgment of acquittal. J.A.
912. No defendant offered any evidence to rebut the government’s
case. J.A. 902-03.
After the jury convicted Staine and Dinnall of both the drug
conspiracy charge and the conspiracy to commit kidnapping, they
were sentenced to life imprisonment because of their responsibility
for the murder of Fisher, which implicated the murder cross-
reference in section 2A4.1(c) of the United States Sentencing
1
Pender testified that Joseph transported 700 grams of powder
cocaine from New York to North Carolina, where it was converted
into crack. Pender received “six ounces of that crack cocaine,”
which converts to over 170 grams of crack. See U.S.S.G. § 2D1.1
cmt. 10 (2004) (providing a conversion table indicating that one
ounce of drugs is the equivalent of 28.35 grams). Pender’s
testimony thus supported the conclusion that Joseph was responsible
for the amount of crack charged in the indictment, i.e., over 50
grams.
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Guidelines. Joseph was sentenced to 264 months for the drug
conspiracy and 60 months for the travel in interstate commerce, to
run concurrently. J.A. 1240. Finally, Richardson was sentenced to
324 months for the drug conspiracy. J.A. 1289-90. All defendants
appealed their convictions and sentences.
II.
The defendants raise multiple challenges to their convictions,
which we address seriatim.
Staine and Dinnall both allege that they were entitled to a
new trial because the trial judge, after closing arguments, altered
the instructions to the jury regarding the charge of conspiracy to
kidnap, in violation of Federal Rule of Criminal Procedure 30. A
violation of Rule 30, which provides that “[t]he court must inform
the parties before closing arguments how it intends to rule on the
requested [jury] instructions,” requires remand only if the
violation resulted in prejudice. United States v. Burgess, 691
F.2d 1146, 1156 (4th Cir. 1982); United States v. Horton, 921 F.2d
540, 547 (4th Cir. 1990).
Staine and Dinnall allege that they were prejudiced because
the trial judge announced prior to closing arguments that he would
instruct the jury in accordance with the elements of the
substantive offense of kidnapping, and their counsel’s closing
arguments tracked the elements of that offense. They claim that
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the judge’s ultimate instruction of the jury based on the
conspiracy to commit kidnapping undermined their counsel’s
credibility.
We find these claims of prejudice unpersuasive. The trial
court permitted counsel for Dinnall and Staine additional time to
present supplemental closing arguments after the court announced
the new instructions, and counsel could have used their
supplemental arguments to correct any misconceptions by the jury.
Both counsel subsequently addressed the jury and specifically
discussed the elements of the conspiracy charge. J.A. 1040-44.
Additionally, Dinnall’s and Staine’s counsel were aware of the
court’s intention to use the instruction for kidnapping, a crime
for which their clients had not been indicted, and made no
objection. They thus are equally responsible for any prejudice
resulting from the trial court’s obvious obligation to conform the
instruction to the charge in the indictment.
Next, appellants raise two objections to evidence admitted
against them. We review the district court’s decision concerning
the admissibility of evidence for abuse of discretion, and such
rulings are subject to harmless error review. United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). All four appellants
allege that the trial court violated Federal Rule of Evidence 403
when it admitted gruesome and prejudicially inflammatory
photographs and video of Fisher, the victim of the kidnapping and
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murder.2 Joseph alleges that the court’s admission, over his
objection, of evidence that Joseph had participated in robbing a
restaurant violated Rule 404(b). J.A. 572-73. In light of the
substantial and entirely uncontradicted evidence that defendants
committed the crimes with which they were charged, any error by the
district court in admitting these types of evidence was harmless.3
All appellants also allege that the district court erred by
admitting evidence from expert witnesses about the “general
practice of drug trafficking” and the presence of cocaine on money
seized from Joseph’s brother after defendants were given late
notice or no notice of the proposed testimony. J.A. 835, 865.
While the district court concluded that the late notice constituted
a discovery violation, rather than excluding the evidence, it
merely limited the scope of the testimony of one of the expert
witnesses as a remedy. J.A. 865. Even if the district court
2
Richardson also alleges that the district court should have
granted her motion for the severance of her trial from that of the
other defendants because of her lack of connection to Fisher’s
murder. However, requests for separate trials are within the
discretion of the district court, and “a denial of a requested
severance will be reversed on appeal only where denial precluded a
fair trial.” United States v. Sellers, 658 F.2d 230, 231 (4th Cir.
1981). Richardson fails to show that the joint trial was so
prejudicial as to preclude a fair trial.
3
Because appellants only objected to some of the photographs
at trial, the district court’s admission of the remaining
photographs is subject to review only for plain error. See United
States v. Vogt, 910 F.2d 1184, 1192 (4th Cir. 1990). Because their
admission, if error, was harmless, it is necessarily not plain
error affecting substantial rights.
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correctly concluded that a discovery violation occurred, the
appellants cannot show that they suffered any prejudice as a result
of that violation, and thus are not entitled to relief. See United
States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997)
(holding that the defendant “must demonstrate prejudice to
substantial rights to justify reversal for violations of discovery
rules.”).
Finally, Dinnall contests the court’s conclusion that
sufficient evidence existed to support a finding that he
participated in the actual abduction of Fisher, and thus argues
that the evidence was insufficient to convict him of conspiracy to
commit kidnapping. Joseph argues that the court erred in denying
the judgment of acquittal on the grounds that insufficient evidence
existed to prove that he had conspired to possess and distribute
more than 50 grams of cocaine base or that he had traveled in
interstate commerce to commit a drug trafficking crime. We must
consider whether, taking the evidence in the light most favorable
to the Government, substantial evidence supports the jury’s
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Wills, 346 F.3d 476, 495 (4th Cir. 2003). Accepting as
true Pender’s testimony summarized above, it is clear that
substantial evidence supported the jury’s conclusions.
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III.
The appellants also challenge their sentences in light of the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738(2005). Because these challenges were not raised to the district
court, we review them for plain error. United States v. Hughes,
No. 03-4172, 2005 U.S. App. LEXIS 4331, at *12 (4th Cir. Mar. 16,
2005).
The presentence report utilized section 2A4.1, the guideline
for a kidnapping charge, to set Staine’s and Dinnall’s Base Offense
Level which, absent any fact findings beyond the mere fact of a
kidnapping, would have been 32. U.S.S.G. § 2A4.1(a). However, the
trial court concluded that the murder of Fisher was a reasonably
foreseeable consequence of the kidnapping conspiracy, and increased
Staine’s and Dinnall’s base offense level to 43 pursuant to section
2A4.1(c). J.A. 1138, 1187. This application of the murder cross-
reference increased the guidelines range of 151-188 months for
Staine and Dinnall to a mandatory sentence of life imprisonment.
J.A. 1138, 1187.4 The facts supporting the murder cross-reference
4
The guidelines range for Staine and Dinnall was based on
their placement in criminal history category III. Although the PSR
classified Dinnall in criminal history category IV, the judge noted
at the sentencing hearing that he would “tentatively find” that
Dinnall’s criminal history category was III. J.A. 1187. Because
an offense level of 43 mandates life imprisonment regardless of
criminal history, Dinnall’s criminal history was not relevant to
his sentence.
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were neither expressly nor necessarily found by the jury.5
Similarly, the court made findings of drug quantity that increased
the Base Offense Levels, and thus the guidelines ranges, for
Richardson and Joseph, from 32 to 38. The court also concluded
that Richardson supplied firearms to the conspiracy, increasing her
Base Offense Level to 40. Based on the facts found by the jury,
Richardson and Joseph could each have been sentenced to 135-168
months for the drug conspiracy conviction. Their sentences were
increased outside this range based on facts found only by the
court.
Because the appellants received higher sentences than would
have been permissible based on the jury’s findings, we agree with
both parties that United States v. Hughes requires that we vacate
and remand appellants’ sentences for resentencing under an advisory
guidelines system.6 See Hughes, 2005 U.S. App. LEXIS 4331, at *13-
17, *37-38 (finding that Hughes had satisfied all three prongs of
the plain error test set forth in United States v. Olano, 507 U.S.
725, 732 (1993), when he was sentenced to a sentence substantially
5
Although the application of the murder cross-reference
rendered other sentencing enhancements moot, the court also
concluded, not based simply on the facts necessarily found by the
jury, that Staine and Dinnall should receive a three-level
enhancement because they played an aggravated role in the offense.
6
Because we vacate the sentences under Hughes, it is
unnecessary for us to reach Dinnall’s alternative argument that the
court clearly erred in its factual conclusion that the murder was
a reasonably foreseeable consequence of the conspiracy.
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longer than that permitted based purely on the facts found by a
jury, and that the court should exercise its discretion to
recognize the error).
CONCLUSION
For the reasons stated herein, we affirm the convictions of
each of the four appellants. Their sentences are hereby vacated
and the case remanded for resentencing consistent with United
States v. Booker.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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