United States v. James Hackley, IV , 662 F.3d 671 ( 2011 )


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  •                         PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,               
    Plaintiff-Appellee,
    v.
       No. 10-4069
    JAMES RICHARD HACKLEY, IV, a/k/a
    J.R., a/k/a Baby J,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Western District of Virginia, at Harrisonburg.
    Glen E. Conrad, District Judge.
    (5:09-cr-00018-gec-1)
    Argued: September 22, 2011
    Decided: December 6, 2011
    Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
    Affirmed by published opinion. Judge Duncan wrote the opin-
    ion, in which Judge Davis and Judge Diaz joined.
    COUNSEL
    ARGUED: Helen Eckert Phillips, MCGLOTHLIN AND
    PHILLIPS, PPLC, Lebanon, Virginia, for Appellant. Jean
    Barrett Hudson, OFFICE OF THE UNITED STATES
    ATTORNEY, Charlottesville, Virginia, for Appellee. ON
    2                 UNITED STATES v. HACKLEY
    BRIEF: Timothy J. Heaphy, United States Attorney, Roa-
    noke, Virginia, Robert N. Tracci, Special Assistant United
    States Attorney, OFFICE OF THE UNITED STATES
    ATTORNEY, Charlottesville, Virginia, for Appellee.
    OPINION
    DUNCAN, Circuit Judge:
    James Richard Hackley ("Hackley") was convicted of sev-
    eral offenses related to his sale of cocaine base to a govern-
    ment informant and subsequent efforts to have that
    informant—the lead witness in the government’s case against
    him—murdered. Hackley challenges his convictions, the join-
    der of the charges into a single trial, the court’s refusal to
    grant him new counsel, and his sentence. Although the facts
    in this case come perilously close to the lower boundary of
    what we will accept as substantive evidence of a conspiracy
    to distribute drugs, for the reasons discussed below, we
    affirm.
    I.
    A.
    David Jackson, a longtime crack user who had worked as
    a confidential informant since 1994, brought Hackley to the
    government’s attention in May 2008. Jackson worked for a
    tree service company and was out doing tree work in Win-
    chester, Virginia on May 18, 2008, when he saw Hackley
    drive up in a white vehicle. They had known each other since
    1992, but had not seen each other for about a year. Jackson
    had never purchased cocaine from Hackley before, but knew
    from previous discussions with him that Hackley had sold
    cocaine in the past. They chatted about how they had been
    doing, and then Jackson asked Hackley if he had cocaine. At
    trial, this was how Jackson described their conversation:
    UNITED STATES v. HACKLEY                     3
    A    . . . . I asked him if he was still getting cocaine.
    Q.   Is that the word you used? Were you that spe-
    cific?
    A.   Yeah, yeah, yeah, still getting that shit, cocaine,
    and he said yeah. Then I asked him for an eight-
    ball. He told me I was lucky, he just come back
    from Maryland, pull over to the parking lot, and
    I bought some crack off of him.
    Q.   Had you purchased crack cocaine from him in
    the past?
    A.   No.
    Q.   Prior to that you had never purchased cocaine
    from him?
    A.   No.
    Q.   Then why was it that you would have this con-
    versation about crack cocaine?
    A.   I’ve known the man since 1992. We’ve had dis-
    cussions before, but I’ve never bought.
    J.A. 170-71.
    The purchase took place in Hackley’s vehicle. After Jack-
    son got into the vehicle, he pulled out $100 for the purchase
    and saw Hackley reach underneath his seat and pull out a
    brown paper bag. From the bag Hackley pulled out a piece of
    cocaine approximately the size of "two golf balls" and "broke
    off a piece" for Jackson. J.A. 173-74.
    That evening, Jackson contacted Agent Kevin Coffman, an
    officer with the Northwest Virginia Regional Drug Task
    4                  UNITED STATES v. HACKLEY
    Force whom Jackson had known for "a couple years." J.A. 67.
    Jackson told Coffman that he had purchased crack from
    Hackley earlier that day.
    The government arranged for Jackson to make six con-
    trolled purchases from Hackley between May 20, 2008, and
    August 20, 2008. During these purchases, Hackley sold Jack-
    son a total of 6.554 grams of cocaine base in the form of crack
    for $1,050. In addition, Jackson made unauthorized purchases
    of crack for his personal use. At some point that summer,
    Hackley explained to Jackson that he was receiving the
    cocaine from his "family" in Maryland.
    B.
    Hackley was arrested on August 20, 2008, and held at the
    Warren County Jail in Front Royal, Virginia. While incarcer-
    ated, he wrote letters to four different female friends in which
    he discussed paying Jackson not to testify or persuading him
    to lie. These letters expressed that he "would rather if [Jack-
    son] did not show up," J.A. 589, and that "the only way out
    [of jail] is if [Jackson] don’t show up," J.A. 608. He also
    spoke with his fellow inmate, Ray Johnson, about not wanting
    Jackson to appear in court. Hackley also told Johnson that he
    owned a .380-caliber handgun. While it is unclear whether
    Johnson or Hackley first proposed killing Jackson, at some
    point that topic arose. Hackley told Johnson that "David Jack-
    son needed to be killed so he didn’t show up" in court. J.A.
    273. Johnson testified that Hackley’s desire to have Jackson
    killed "was pretty set in stone." 
    Id. Unfortunately for
    Hackley, Johnson contacted federal
    agents and told them that Hackley was discussing having their
    witness killed. Johnson became a confidential informant and
    began cooperating with the government in its investigation of
    Hackley’s murder for hire scheme.
    With Johnson’s cooperation, the Bureau of Alcohol,
    Tobacco, Firearms and Explosives ("ATF") sent Special
    UNITED STATES v. HACKLEY                   5
    Agent Leonard Codispot to pose as an inmate at the Warren
    County Jail. Johnson told Hackley that Codispot could help
    him have Jackson killed. Codispot testified that Hackley initi-
    ated a conversation by saying to him "I got a problem. I need
    this guy taken out. You know, he’s testifying against me."
    J.A. 350.
    Codispot testified that he asked Hackley if there was "a cer-
    tain way he would like to have David Jackson killed," J.A.
    277, asking, "Do you want me to stab him, cut his head off
    or shoot him with a gun?" J.A. 351-52. Hackley "didn’t care
    how it was done, he just wanted Mr. Jackson gone forever."
    J.A. 352. Codispot asked him, "[D]o you want [me] to just
    take him away for a while and make him disappear for a little
    bit?" J.A. 351. Hackley said "no, he wanted him gone for-
    ever." J.A. 351.
    Codispot also testified that Hackley mentioned that he had
    a gun hidden at Irvette Reaves’s house that Codispot could
    "probably get," J.A. 351, but that he no longer had her phone
    number. Reaves was Hackley’s girlfriend but apparently dis-
    associated herself after seeing another woman with him in
    prison. Hackley wrote to tell her where the gun was hidden
    and to ask her to move it. Despite their falling out, Reaves
    moved the gun to her new home and kept it until agents
    searched her house on April 28, 2009.
    Hackley offered Codispot $5,000 or his motorcycle in
    exchange for his help. He twice wrote to another girlfriend,
    Susie Dearing, asking her to have keys made for the bike and
    telling her that Codispot was going to come inspect it. He
    asked Dearing to damage one of the keys to the bike so that
    it could not start it. Hackley wrote to Dearing that he was con-
    cerned that Codispot was going to try to cheat him. Johnson
    gave Dearing’s address and phone number to Codispot so he
    would know where the motorcycle was located so he could
    inspect it.
    6                  UNITED STATES v. HACKLEY
    After Codispot left the jail, agents staged the death of Jack-
    son, complete with a picture in a fake news story. According
    to Johnson, when Hackley was given a copy of the article,
    Hackley was "[e]cstatic." J.A. 291.
    C.
    On April 22, 2009, a federal grand jury for the Western
    District of Virginia returned a seven-count indictment against
    Hackley. Count One charged Hackley with conspiracy to dis-
    tribute five or more grams of cocaine base in violation of 21
    U.S.C. §§ 841(b)(1)(B) and 846. Counts Two through Seven
    charged Hackley with distribution of crack in violation of 21
    U.S.C. §§ 841(a)(1) and (b)(1)(C).
    The grand jury returned a superseding indictment on June
    18, 2009. This indictment retained the original seven counts
    and added four additional charges: (1) murder for hire, in vio-
    lation of 18 U.S.C. § 1958; (2) solicitation to commit murder
    for hire, in violation of 18 U.S.C. §§ 373 and 1958; (3)
    obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2);
    and (4) felon in possession of a firearm, in violation of 18
    U.S.C. § 922(g)(1).
    Hackley had entered into a plea agreement with the govern-
    ment on September 30, 2009, but sought to withdraw from
    that plea agreement on October 6, 2009, a little more than a
    week before trial. Hackley and his assigned attorney moved
    on October 6th for the court to appoint another lawyer to rep-
    resent him. The district court denied this motion.
    On October 8, 2009, Hackley filed a Motion for a Separate
    Trial on Count Eleven (felon in possession of a firearm). The
    district court denied this motion on October 15, 2009.
    The government filed a Notice of Enhanced Punishment
    pursuant to 21 U.S.C. § 851 on October 9, 2009.
    UNITED STATES v. HACKLEY                   7
    On October 19th and 20th, Hackley was tried before a jury
    in Charlottesville, Virginia. At trial, after the government
    rested, Hackley moved for a judgment of acquittal on Counts
    Nine (solicitation to commit murder for hire) and Eleven. The
    court denied the motion. Hackley requested a jury instruction
    on entrapment with respect to Count Eight—murder for
    hire—which the district court denied. On October 21, the jury
    found him guilty on all eleven counts. Thereafter, Hackley
    made a renewed motion for judgment of acquittal on Count
    Nine, and this time on Count One as well. The district court
    denied the motion on December 3, 2009.
    On January 7, 2010, the district court sentenced Hackley to
    a term of 306 months in prison. The court calculated Hack-
    ley’s criminal history as eight points, based on ten convic-
    tions, the oldest of which was a conviction in October 1992
    for distribution and conspiracy to distribute cocaine. Offenses
    older than 15 years do not usually result in enhancements
    under U.S.S.G. Chapter 4, Part A § 4A1.2(e). The court, how-
    ever, at the suggestion of the probation office in the presen-
    tence report ("PSR"), included Hackley’s 1992 conviction
    because his incarceration continued until September 23, 1993,
    less than fifteen years before May 20, 2008. Including the
    1992 conviction moved his criminal history from Category III
    to Category IV and increased the recommended sentence
    range under the Sentencing Guidelines from 262-327 months
    to 292-365 months. His 306-month sentence falls within both
    Sentencing Guidelines ranges.
    II.
    Hackley now appeals the denial of his Motions for Judg-
    ment of Acquittal with respect to Counts One (conspiracy to
    distribute) and Nine (solicitation to commit murder for hire),
    the denial of an instruction on entrapment for Count Eight
    (murder for hire), whether there was sufficient evidence to
    convict him on Count Eleven (felon in possession of a fire-
    arm), the district court’s refusal to grant him a separate trial
    8                  UNITED STATES v. HACKLEY
    on Count Eleven, its refusal to allow him to substitute counsel
    before trial, and finally his sentence. We consider each in
    turn.
    A.
    Hackley appeals the district court’s denial of his Motion for
    Judgment of Acquittal with respect to Count One, conspiracy
    to distribute and possess a controlled substance with intent to
    distribute, in violation of 21 U.S.C. §§ 841(a)(1),
    841(b)(1)(B), and 846. He argues that there is insufficient evi-
    dence to support his conviction.
    We review the district court’s ruling on a motion for judg-
    ment of acquittal de novo and will uphold the verdict if, view-
    ing the evidence in the light most favorable to the
    government, it is supported by substantial evidence. United
    States v. Alerre, 
    430 F.3d 681
    , 693 (4th Cir. 2005). Substan-
    tial evidence is "evidence that a reasonable finder of fact
    could accept as adequate and sufficient to support a conclu-
    sion of a defendant’s guilt beyond a reasonable doubt." 
    Id. While acknowledging
    that the evidence is indeed thin, we
    nonetheless affirm because we must assume on appeal that the
    jury resolved any issues of witness credibility in the govern-
    ment’s favor. See United States v. Jeffers, 
    570 F.3d 557
    , 565
    (4th Cir. 2009). Nonetheless, we reiterate that this case repre-
    sents the very boundary of what passes for substantial evi-
    dence of a conspiracy.
    In order to prove conspiracy in this case, "the government
    was required to establish beyond a reasonable doubt that: ‘(1)
    an agreement’ to distribute and ‘possess cocaine with intent
    to distribute existed between two or more persons; (2) the
    defendant knew of the conspiracy; and (3) the defendant
    knowingly and voluntarily became a part of this conspiracy.’"
    United States v. Yearwood, 
    518 F.3d 220
    , 225-26 (4th Cir.
    2008) (quoting United States v. Burgos, 
    94 F.3d 849
    , 587 (4th
    Cir. 1996) (en banc)). Since Hackley does not appeal his con-
    UNITED STATES v. HACKLEY                      9
    victions for the substantive crime of distribution of a con-
    trolled substance, the issue is whether there was sufficient
    evidence of an agreement to support the finding of conspir-
    acy.
    The presence of a knowing and voluntary agreement distin-
    guishes conspiracy from the completed crime and is therefore
    an essential element of the crime of conspiracy. Iannelli v.
    United States, 
    420 U.S. 770
    , 777 n.10 (1975); 
    Burgos, 94 F.3d at 858
    . Conspirators need not know "all of the details of
    the conspiracy," provided that they know its "essential
    object." United States v. Goldman, 
    750 F.2d 1221
    , 1227 (4th
    Cir. 1984). This agreement need only be a "tacit or mutual
    understanding" between the defendant and his accomplice.
    United States v. Ellis, 
    121 F.3d 908
    , 922 (4th Cir. 1997). Cir-
    cumstantial evidence alone is sufficient to support a convic-
    tion for conspiracy. 
    Ellis, 121 F.3d at 922
    (internal quotation
    marks omitted).
    In United States v. Townsend, we held that, in drug conspir-
    acy cases, "evidence of a buyer-seller relationship, standing
    alone, is insufficient to support a conspiracy conviction." 
    924 F.2d 1385
    , 1394 (4th Cir. 1991). Two years later, in United
    States v. Mills, we clarified that holding, saying, "evidence of
    a buy-sell transaction is at least relevant (i.e. probative) on the
    issue of whether a conspiratorial relationship exists." 
    995 F.2d 480
    , 485 n.1 (4th Cir. 1993). Since then, we have held that
    evidence of a continuing buy-sell relationship when coupled
    with evidence of large quantities of drugs, or "continuing rela-
    tionships and repeated transactions," creates a reasonable
    inference of an agreement. United States v. Reid, 
    523 F.3d 310
    , 317 (4th Cir. 2008) (citing 
    Burgos, 94 F.3d at 858
    ).
    The government attempts to use this inference to prove that
    Hackley conspired both with Jackson and with unnamed
    Maryland suppliers. This, however, is not entirely accurate.
    As the district court correctly instructed the jury, because
    Jackson was at all relevant times a government agent, despite
    10                    UNITED STATES v. HACKLEY
    his unauthorized purchases, he cannot be a co-conspirator.
    United States v. Lewis, 
    53 F.3d 29
    , 33 (4th Cir. 1995). The
    unnamed Maryland suppliers, then, are the only possible peo-
    ple with whom Hackley could have had a conspiratorial
    agreement.
    Preliminarily, we note that in this case, the evidence of sub-
    stantial quantities of drugs is, on its own, too thin to support
    an inference of conspiracy. All of the evidence of the scale of
    Hackley’s drug-dealing comes from the two confidential
    informants. Jackson testified that he saw Hackley with two
    golf-ball sized quantities of crack. Johnson testified that he
    "believed" Hackley sold "about an ounce or two a week." J.A.
    269.
    The government offered no testimony about how much
    crack two golf-ball sized quantities would be, arguing instead
    that the government need not prove the exact weights of
    drugs. See United States v. Natanel, 
    938 F.2d 302
    , 312-13 (1st
    Cir. 1991). While we do not disagree, if we are to infer the
    existence of an agreement based on the drug quantity, it
    would be helpful to have some sense of what that quantity is,
    particularly when it appears limited.1 Even the government
    describes Jackson’s authorized purchases as "relatively small
    amounts."2 Appellee’s Br. 23. The cases on which the Gov-
    ernment relies in support of this inference all involve larger
    quantities than those reflected here. E.g., 
    Yearwood, 518 F.3d at 226
    (5 ounces sold for $3,500 in a single transaction);
    United States v. Parker, 330 F. App’x 436, 438 (4th Cir.
    2009) (100 kilograms sold over a 10-year period to multiple
    1
    Because five grams was an element of the crime charged, even the dis-
    trict judge was concerned that "the jury has to be given some understand-
    ing as to how they’re to decide what quantity of crack is involved." J.A.
    543. The government responded that two golf-ball sized quantities are a
    "substantial weight," but it could not be more specific than that. 
    Id. 2 One
    ounce is equivalent to 28.35 grams; Jackson made controlled pur-
    chases totaling 6.5 grams of crack as well as unauthorized purchases of
    unknown amounts.
    UNITED STATES v. HACKLEY                            11
    witnesses along the distribution chain). Of the cases on which
    the government relies, the smallest quantity contemplated is
    4.5 ounces, but there witnesses testified that they were "repeat
    customers." 
    Reid, 523 F.3d at 317
    .
    Nonetheless, we are constrained to affirm because the gov-
    ernment’s evidence of "continuing relationships and repeated
    transactions," although sparse, is sufficient to support an
    inference of an ongoing relationship between Hackley and the
    unnamed Maryland suppliers. Three pieces of evidence, taken
    together, form the basis from which a jury could reasonably
    infer that Hackley had a continuous relationship with Mary-
    land suppliers. The first is Jackson’s testimony that Hackley
    told Jackson that he was getting his supply of crack from his
    "family" in Maryland. Supporting this testimony is Jackson’s
    further observation that Hackley was able to sell crack when
    he returned from Maryland.
    The second is Jackson’s testimony that Hackley was "still"
    getting cocaine, that he had known Hackley since 1992, and
    that they had discussed crack cocaine previously. Although
    Jackson had not actually bought cocaine from Hackley before
    May 18, 2008, a reasonable jury could infer from this testi-
    mony that Hackley had received cocaine from his "family" in
    Maryland previously.
    The third is a cryptic conversation between Hackley and
    Dearing in which they discussed his other girlfriend’s desire
    that he "tell on" someone else so that he could get out. Appel-
    lee’s Br. at 21;3 Government Exhibit 58A. Hackley responded
    3
    Although the government relies on this conversation between Dearing
    and Hackley, it neglected to include Exhibit 58A, which contains a tran-
    script of the conversation, in the joint appendix or in any other filing ini-
    tially made available to this court. Further complicating our efforts is that
    the government’s brief refers to Exhibit 58A as Exhibit 59. The govern-
    ment’s brief then cites to a portion of the trial transcript reflecting Dear-
    ing’s testimony about what she understood during the conversation.
    Notably absent is a transcript of the conversation that the government
    quotes in its brief. We feel compelled to observe that incomplete records
    accompanied by mis-bound and mis-paginated briefs replete with inaccu-
    rate citations do not help our analysis.
    12                   UNITED STATES v. HACKLEY
    that "[p]eople deal with me ‘cause I’m not about all that bull-
    shit." 
    Id. Hackley further
    explained to Dearing that not "tell-
    [ing] on" people was "the whole principle of the game." 
    Id. Although she
    testified that she did not know what Hackley
    meant when he said "[p]eople deal with me," Dearing also
    testified that "the game" was "the drug game." J.A. 410-11.
    From the totality of this evidence, we conclude that a jury
    could find beyond a reasonable doubt that Hackley had a con-
    tinuous buy-sell relationship with Maryland suppliers. Under
    the test articulated in Reid and Burgos a jury could reasonably
    infer that Hackley had a standing agreement—a conspira-
    cy—with unnamed Maryland suppliers to bring their drugs to
    market in Virginia.
    It bears emphasis, however, that although there is ample
    evidence that Hackley distributed crack, the conspiracy evi-
    dence is far weaker.4 The relatively small amount of drugs
    involved and the scant evidence of a buyer-seller relationship
    between Hackley and his suppliers in Maryland are the outer
    limits of that which could support an inference that a conspir-
    acy existed. Distribution and conspiracy remain separate
    offenses, and although we certainly allow the government to
    use circumstantial evidence to prove the presence of an agree-
    ment—the sole element distinguishing conspiracy from the
    substantive crime—the government must take care not to ask
    the jury to infer an agreement based on guilt of distribution
    alone.5
    4
    Many of the government’s arguments rely on inferences more tenuous
    than we are willing to make. For example, the government argued during
    its closing argument that because Hackley told a confidential informant
    that he was paying out all of his legitimate income in child support, his
    other assets, like the motorcycle, must come from drug dealing. ECF No.
    90 at 74:5-13. We need a more detailed accounting of Hackley’s income
    and assets than the government offered at trial before we will allow pay-
    ment of child support to become evidence of a conspiracy to distribute
    drugs.
    5
    In its closing argument, the government said, "[y]ou also heard evi-
    dence when the defendant was returning to Maryland, he had two golf-ball
    UNITED STATES v. HACKLEY                          13
    B.
    Next, we address whether the district court erred when it
    denied Hackley a jury instruction on entrapment. The affirma-
    tive defense of entrapment has two parts: "government
    inducement of the crime, and a lack of predisposition on the
    part of the defendant to engage in the criminal conduct."
    Mathews v. United States, 
    485 U.S. 58
    , 63 (1988); see also
    United States v. Ramos, 
    462 F.3d 329
    , 334 (4th Cir. 2006).
    "As a general proposition, a defendant is entitled to an
    instruction as to any recognized defense for which there exists
    evidence sufficient for a reasonable jury to find in his favor."
    
    Mathews, 485 U.S. at 63
    . We review de novo a district court’s
    denial of a jury instruction on entrapment. 
    Id. The district
    court is the gatekeeper; if the defendant does
    not produce "more than a mere scintilla of evidence," the
    court need not give the instruction. United States v. Phan, 
    121 F.3d 149
    , 154 (4th Cir. 1997). This circuit has repeatedly held
    that "solicitation of the crime alone is not sufficient to grant
    the instruction, as that ‘is not the kind of conduct that would
    persuade an otherwise innocent person to commit a crime.’"
    
    Ramos, 462 F.3d at 334
    (citing United States v. Hsu, 
    364 F.3d 192
    , 200 (4th Cir. 2004)).
    Hackley argues that he has asserted "more than a mere
    scintilla of evidence of entrapment." He asserts that a reason-
    able jury could conclude that Johnson, not Hackley, initiated
    sized portions of crack cocaine. Is it even possible that the defendant
    didn’t agree with someone when he obtained these drugs to sell them to
    someone else?" ECF No. 90 at 12:17-21. This reasoning effectively reads
    the element of agreement out of the crime of conspiracy. Without this ele-
    ment, anyone guilty of distributing a controlled substance would be guilty
    of conspiracy to distribute unless the defendants could prove, as an affir-
    mative defense, that they found, stole, or made the drugs themselves. A
    paradigm in which two different crimes have identical elements would
    allow the government to punish the defendant for the same offense twice.
    14                     UNITED STATES v. HACKLEY
    the discussion of murder, and that his earlier plan was to pay
    Jackson not to testify. Who started the conversation is irrele-
    vant. His argument founders on the fact—which he does not
    dispute—that Johnson was not a government informant at the
    time that the discussions about doing away with Jackson
    began. Entrapment only arises in the context of government
    inducement.
    Moreover, there is ample evidence in the record from
    which the jury could find that Hackley was predisposed to
    prevent Jackson from testifying. In addition to his discussions
    with Johnson, Hackley wrote numerous letters to his girl-
    friends about his desire to prevent Jackson from testifying.
    "Predisposition is not limited only to crimes specifically con-
    templated by the defendant prior to government suggestion."
    
    Ramos, 462 U.S. at 334-45
    (internal citations omitted).
    Instead, "[i]t is sufficient if the defendant is of a frame of
    mind such that, once his attention is called to the criminal
    opportunity, his decision to commit the crime is the product
    of his own preference and not the product of government per-
    suasion." United States v. Osborne, 
    935 F.2d 32
    , 38 (4th Cir.
    1986). Such was clearly the case here.
    C.
    Hackley appeals the district court’s denial of his Motion for
    Judgment of Acquittal as to Count 9, solicitation to commit
    murder for hire, in violation of 18 U.S.C. §§ 373 and 1958.6
    6
    With respect to Count 9, Hackley also argues that the government’s
    evidence amounts to a constructive amendment of the indictment. "A con-
    structive amendment to an indictment occurs when either the government
    (usually during its presentation of evidence and/or its argument), the court
    (usually through its instructions to the jury), or both, broadens the possible
    bases for conviction beyond those presented by the grand jury." United
    States v. Floresca, 
    38 F.3d 706
    , 710 (4th Cir. 1994) (en banc). Hackley
    argues the indictment was constructively amended because the jury could
    have relied on 18 U.S.C. § 1512(a)(1)—which makes it unlawful to "kill[ ]
    or attempt[ ] to kill another person, with intent to," for example, "prevent
    UNITED STATES v. HACKLEY                             15
    Section 1958 criminalizes using the mail or other interstate
    commerce facilities "with intent that a murder be committed
    in violation of the laws of any State or the United States" for
    pecuniary gain.7 Section 373 makes it a crime to solicit any-
    one, including a government agent, to commit a crime of vio-
    lence. Hackley claims that there was insufficient evidence to
    show that he used the mail or other interstate commerce facili-
    ties while soliciting Codispot to kill Jackson. We disagree.
    The record clearly shows that Hackley wrote to his many
    girlfriends seeking help in his murder for hire scheme. For
    example, he wrote to Dearing instructing her to show Codis-
    pot the motorcycle. While it is true that Hackley did not write
    or call Codispot himself, § 1958 simply says "use the mail . . .
    with intent that a murder be committed." We have never held
    that § 1958 requires that defendants mail the person whom
    they solicit, nor does the statute support such a limited read-
    ing. Since Hackley’s letters to Dearing facilitated his solicita-
    tion of Codispot, we affirm.
    the attendance or testimony of any person in an official proceeding"—as
    a predicate offense under 18 U.S.C. § 373, even though the only permissi-
    ble predicate offense charged in the indictment was 18 U.S.C. § 1958, the
    murder-for-hire statute. It is true that in a separate count of the indictment,
    Count 10, Hackley was charged with a substantive violation of 18 U.S.C.
    § 1512(a)(1), and the jury was instructed and convicted Hackley on that
    count. But the district court specifically instructed the jury that, on Count
    9, the only applicable predicate offense for a violation of 18 U.S.C. § 373
    was § 1958, not § 1512(a)(1). Therefore, there was no constructive amend-
    ment of the indictment.
    7
    Hackley also argues that 18 U.S.C. § 1512(c)(2) is not a proper predi-
    cate offense under 18 U.S.C. § 373. The jury, however, was not instructed
    that 18 U.S.C. § 1512(c)(2) is a predicate offense. Rather, the district court
    agreed with Hackley that only the murder-for-hire statute, not the
    obstruction-of-justice statute, constituted a proper predicate offense, and
    instructed the jury that Hackley could be convicted of violating 18 U.S.C.
    § 373 only if it found that Hackley had solicited Codispot to commit mur-
    der for hire in violation of 18 U.S.C. § 1958.
    16                UNITED STATES v. HACKLEY
    D.
    Hackley makes two claims with respect to Count Eleven:
    first, that there was insufficient evidence to convict him of
    being a felon in possession of a firearm, in violation of 18
    U.S.C. § 922(g); and second, that the district court erred by
    denying his motion for a separate trial on this count. We dis-
    cuss each in turn.
    1.
    As discussed above, "when reviewing a sufficiency-of-the-
    evidence claim, we will sustain the jury’s verdict ‘if there is
    substantial evidence, taking the view most favorable to the
    Government, to support it.’" United States v. Jackson, 
    124 F.3d 607
    , 610 (4th Cir. 1997) (quoting Glasser v. United
    States, 
    315 U.S. 60
    , 80 (1942)). "Substantial evidence is evi-
    dence that a reasonable finder of fact could accept as adequate
    and sufficient to support a conclusion of a defendant’s guilt
    beyond a reasonable doubt." 
    Id. (citing Burgos,
    94 F.3d at
    862). Since Hackley stipulated that he was a felon, the only
    issue is whether he possessed a firearm.
    A convicted felon is guilty under § 922(g) if he "exercised
    dominion and control over" a firearm. 
    Jackson, 124 F.3d at 610
    (internal quotation marks omitted). Hackley claims that
    he could not have exercised dominion or control over the fire-
    arm because he was incarcerated. We need not reach this
    issue because the indictment charged him with possessing the
    firearm "on or between August 19, 2008 and August 28,
    2008." J.A. 22. Hackley was not arrested until August 20,
    2008.
    Before his arrest, Hackley purchased the gun and stored it
    at Irvette Reaves’s house. She testified that she did not know
    it was there until he found out that she was moving and asked
    her to bring it to her new house. Hackley also wrote to her
    from prison to inquire about what she had done with his "toy."
    UNITED STATES v. HACKLEY                   17
    Since a jury could infer from this evidence that Hackley pos-
    sessed the gun on August 19th, before he was arrested, we
    affirm.
    2.
    Hackley also claims that joinder of Count Eleven with the
    other counts in the indictment was improper and that trial on
    all counts together prejudiced him. Neither claim has merit.
    "Whether offenses in an indictment are improperly joined
    under Rule 8(a) is a question of law reviewed de novo."
    United States v. Cardwell, 
    433 F.3d 378
    , 384 (4th Cir. 2007).
    We review the district court’s decision not to sever the
    offenses for abuse of discretion. United States v. Acker, 
    52 F.3d 509
    , 514 (4th Cir. 1995)
    a.
    An indictment "may charge a defendant in separate counts
    with [two] or more offenses if [1] the offenses charged . . . are
    of the same or similar character, . . . [2] are based on the same
    act or transaction, or [3] are connected with or constitute parts
    of a common scheme or plan." Fed. R. Crim. P. 8(a). Under
    this court’s decision in Cardwell, counts are properly joined
    if they "are based on the same act or transaction" or "are con-
    nected with or constitute parts of a common scheme or plan"
    such that they "have a logical relationship to one another." 
    Id. at 385
    (internal quotation marks omitted). This test permits
    broad joinder to promote efficiency, but does not permit
    stretching the statute to cover offenses that are only related
    temporally. 
    Id. at 386.
    In Cardwell, we held that a felon in possession charge was
    not necessarily related to a charge of murder for hire when the
    gun was not intended to be part of the crime, unless there
    exist "additional facts demonstrat[ing] that the crimes were
    logically related to one another." 
    Id. at 387.
    We held that the
    defendant’s statement that he would have used the gun to
    18                 UNITED STATES v. HACKLEY
    avoid arrest for murder for hire was sufficient to make joinder
    of the charges proper. 
    Id. Here Hackley
    not only possessed
    the gun that was to be used in the crime; he offered that exact
    gun for the undercover agent to use to murder Jackson. If con-
    templating using a gun to avoid arrest for murder for hire
    shows a sufficient relationship for joinder then surely contem-
    plating using a gun in the murder for hire is also sufficient.
    That Hackley did not make an "effort to actually use" the gun,
    and that he was incarcerated during the relevant time period,
    does not render the relationship any less logical. For these
    reasons, we hold that Count Eleven was permissibly joined
    with the other charges.
    b.
    In the alternative, Hackley argues the district court erred
    when it declined to sever Count Eleven for a separate trial
    because its inclusion prejudices him. Federal Rule of Criminal
    Procedure 14(a) gives courts discretion to sever offenses if
    joinder in a single trial would prejudice a defendant. It is not
    enough for the defendant to show that severance offers him "a
    better chance of acquittal." United States v. Reavis, 
    48 F.3d 763
    , 767 (4th Cir. 1995). The Supreme Court has held that
    severance is appropriate "only if there is a serious risk that a
    joint trial would . . . prevent the jury from making a reliable
    judgment about guilt or innocence." Zafiro v. United States,
    
    506 U.S. 534
    , 539 (1993) (joinder of defendants). Similarly,
    we have held that "[t]he trial court has a wide range of discre-
    tion in matters of severance which should be left undisturbed,
    absent a showing of clear prejudice or abuse of discretion."
    
    Acker, 52 F.3d at 514
    . Hackley has shown neither clear preju-
    dice nor abuse of discretion.
    Hackley claims that knowing about his prior felony convic-
    tion would prejudice jurors when considering the other
    counts. In Cardwell, which as we noted also involved
    § 922(g) and a murder-for-hire charge, we opined that
    "stipulat[ing] to the existence of the prior felony[, and
    UNITED STATES v. HACKLEY                  19
    k]eeping the facts about the felony (if not the fact of the fel-
    ony) from the jury tends to diffuse any passions that would be
    aroused by specific evidence of the defendant’s felonious
    
    past." 433 F.3d at 388
    . The district court in this case allowed
    precisely such a stipulation, which prevented the jury from
    hearing any details about the prior conviction. Moreover, evi-
    dence of Hackley’s possession of a gun would have been
    admissible on the murder-for-hire and drug distribution
    charges, because in Hackley’s conversations with Johnson
    and Codispot he stated that he had a gun that Codispot could
    use to murder Jackson. Accordingly, the district court did not
    abuse its discretion when it declined to sever Count Eleven.
    E.
    Hackley claims that the district court abused its discretion
    when it denied his Motion for Change of Counsel. While the
    Sixth Amendment includes the right to counsel of one’s own
    choosing, this right is not absolute and "must not obstruct
    orderly judicial procedure and deprive courts of the exercise
    of their inherent power to control the administration of jus-
    tice." United States v. Gallop, 
    838 F.2d 105
    , 108 (4th Cir.
    1988). We review denials of motions to substitute counsel for
    abuse of discretion, considering (1) "the timeliness of the
    motion"; (2) "the adequacy of the court’s inquiry into the
    defendant’s complaint"; and (3) "whether the attorney/client
    conflict was so great that it had resulted in total lack of com-
    munication preventing an adequate defense." United States v.
    Mullen, 
    32 F.3d 891
    , 895 (4th Cir. 1994).
    Considering the timeliness of Hackley’s motion under Mul-
    len’s first prong, we note that Hackley moved for new counsel
    when he withdrew from his plea agreement just one week
    before trial. The trial had already been delayed once.
    Although the district court did not specifically find the motion
    untimely, it expressed concern about future delay, especially
    since Hackley’s was "one of the oldest criminal cases" and
    20                 UNITED STATES v. HACKLEY
    that "the better course would be to go ahead and try it." J.A.
    40-41.
    Looking to the second Mullen factor, Hackley alleges that
    the district court failed to investigate the breakdown in com-
    munication between him and his attorney. That assertion is
    not borne out by the record. The district court inquired about
    Hackley’s complaints and asked his attorney whether she had
    any problems with the representation. The attorney responded
    that she was not moving to withdraw. Hackley’s complaint
    was that they had disagreements and that "she was not repre-
    senting [him] to her full ability." J.A. 38. However, he gave
    no basis for his expectations, nor did he specify what counsel
    should have been doing that she was not. Again, we cannot
    agree the district court failed to investigate his complaint.
    Nor did there appear to be such a breakdown in communi-
    cation as to prevent Hackley from receiving an adequate
    defense. He complained that his counsel’s advice was "wishy-
    washy," but Hackley changed his own mind about how to
    plead. J.A. 39. He may not have liked her style, but he has not
    suggested that counsel’s representation was inadequate.
    Therefore, we affirm.
    F.
    The final issue Hackley raises is whether the district court
    abused its discretion by improperly considering his prior fel-
    ony conviction when calculating his sentence. In reviewing
    any sentence, "whether inside, just outside, or significantly
    outside the Guidelines range," we apply a "deferential abuse-
    of-discretion standard." Gall v. United States, 
    552 U.S. 38
    , 51
    (2007). We must first consider whether the district court com-
    mitted any procedural error and then "[i]f, and only if, we find
    the sentence procedurally reasonable can we consider the sub-
    stantive reasonableness of the sentence imposed under an
    abuse-of-discretion standard." United States v. Carter, 
    564 F.3d 325
    , 328 (4th Cir. 2009) (citations omitted).
    UNITED STATES v. HACKLEY                   21
    Procedural errors include treating the Guidelines as manda-
    tory, failing to calculate (or improperly calculating) the
    Guidelines range, selecting a range based on clearly erroneous
    facts or failing to explain the sentence chosen. See 
    Gall, 552 U.S. at 51
    ; see also Rita v. United States, 
    551 U.S. 338
    (2007). "Substantive reasonableness examines the totality of
    the circumstances to see whether the sentencing court abused
    its discretion in concluding that the sentence it chose satisfied
    the standards set forth in 18 U.S.C. § 3553(a)." United States
    v. Mendoza-Mendoza, 
    597 F.3d 212
    , 216 (4th Cir. 2010). A
    sentence within a properly calculated guideline range is pre-
    sumptively reasonable. 
    Rita, 551 U.S. at 351
    .
    The district court adopted the Presentence Report’s calcula-
    tion of Hackley’s criminal history as eight points based on his
    ten prior convictions, the oldest of which was a conviction in
    October 1992 for distribution and conspiracy to distribute
    cocaine. Including the October 1992 conviction added three
    points to the total and bumped Hackley’s criminal history cat-
    egory from III (and a recommended range of 262 to 327
    months) to IV (and a recommended range of 292 to 365
    months). Hackley does not argue that including the conviction
    was a procedural error. Indeed, although ordinarily a prior
    conviction only counts toward a defendant’s criminal history
    if the sentence on the conviction was "imposed within fifteen
    years of the defendant’s commencement of the instant
    offense," convictions imposed earlier are also counted if the
    sentence exceeded one year and one month and "resulted in
    the defendant being incarcerated during any part of such
    fifteen-year period." U.S.S.G. § 4A1.2(e). Hackley was not
    released from prison on the October 1992 conviction until
    September 23, 1993, less than fifteen years before May 20,
    2008. Because the Guidelines range was properly calculated
    and because the sentence imposed (306 months) is within that
    range, we are "allowed to presume that [the] district court’s
    chosen sentence is substantively reasonable." Mendoza-
    
    Mendoza, 597 F.3d at 216
    .
    22                 UNITED STATES v. HACKLEY
    Hackley argues the 306-month sentence was "greater than
    necessary," 18 U.S.C. § 3553(a), and therefore the district
    court’s refusal to depart downward rendered the sentence sub-
    stantively unreasonable because (1) criminal history points
    are not "ordinarily" assigned for "convictions older than 15
    years", (2) "the 1992 conviction is the only [prior] conviction
    with a . . . substantial jail sentence," and (3) Hackley only
    served a year and a half in jail for the 1992 conviction. Appel-
    lant’s Br. at 45.
    A district court has discretion to depart downward "[i]f reli-
    able information indicates that the defendant’s criminal his-
    tory category substantially over-represents the seriousness of
    the defendant’s criminal history or the likelihood that the
    defendant will commit other crimes." U.S.S.G. § 4A1.3(b)(1).
    However, "[w]e lack the authority to review a sentencing
    court’s denial of a downward departure unless the court failed
    to understand its authority to do so." United States v. Brewer,
    
    520 F.3d 367
    , 371 (4th Cir. 2008). Hackley does not argue,
    and the record does not disclose, that the district court failed
    to recognize its authority to depart. For these reasons, we
    decline to disturb his sentence.
    III.
    For the foregoing reasons, we affirm the judgment of the
    district court.
    AFFIRMED
    

Document Info

Docket Number: 10-4069

Citation Numbers: 662 F.3d 671, 2011 U.S. App. LEXIS 24123, 2011 WL 6034783

Judges: Duncan, Davis, Diaz

Filed Date: 12/6/2011

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (24)

United States v. Zarina Lenetta Mullen, A/K/A Z , 32 F.3d 891 ( 1994 )

Glasser v. United States , 62 S. Ct. 457 ( 1942 )

United States v. Arnold Jackson , 124 F.3d 607 ( 1997 )

United States v. Frank Kahled Burgos, United States of ... , 94 F.3d 849 ( 1996 )

Rita v. United States , 127 S. Ct. 2456 ( 2007 )

Gall v. United States , 128 S. Ct. 586 ( 2007 )

United States v. Brian Keith Mills, (Two Cases). United ... , 995 F.2d 480 ( 1993 )

United States v. Jose P. Floresca , 38 F.3d 706 ( 1994 )

United States v. Yearwood , 518 F.3d 220 ( 2008 )

United States v. Eugene You-Tsai Hsu, United States of ... , 364 F.3d 192 ( 2004 )

United States v. Tai Anh Phan , 121 F.3d 149 ( 1997 )

United States v. Efraim Natanel A/K/A Efriam Natanel , 938 F.2d 302 ( 1991 )

United States v. Reid , 523 F.3d 310 ( 2008 )

United States v. Brewer , 520 F.3d 367 ( 2008 )

United States v. Ricardo U. Alerre, United States of ... , 430 F.3d 681 ( 2005 )

United States v. Raul Castillo Ramos , 462 F.3d 329 ( 2006 )

United States v. Catherine Yvonne Acker , 52 F.3d 509 ( 1995 )

United States v. Sandy H. Goldman, United States of America ... , 750 F.2d 1221 ( 1984 )

United States v. Sandra Reavis, United States of America v. ... , 48 F.3d 763 ( 1995 )

Mathews v. United States , 108 S. Ct. 883 ( 1988 )

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