United States v. Melvin ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4997
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEONE ANTONIO MELVIN, a/k/a D,
Defendant - Appellant,
and
MARLON JERMAINE MCCORTER,
Claimant.
No. 05-4998
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ADRIAN ALEXANDER, a/k/a AD,
Defendant - Appellant,
and
MARLON JERMAINE MCCORTER,
Claimant.
No. 05-4999
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAMONE STEPHON JONES, a/k/a Duggie,
Defendant - Appellant.
No. 05-5000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEPHON MASON, a/k/a Step, a/k/a Step Dog,
a/k/a Dog,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-03-321)
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Argued: March 16, 2007 Decided: July 13, 2007
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Sol Zalel Rosen, Washington, D.C., for Appellant Deone
Antonio Melvin; John James Carney, Washington, D.C., for Appellant
Adrian Alexander; Eric Matthew Glass, CLARK & GLASS, Rockville,
Maryland, for Appellant Ramone Stephon Jones; Marc Lanny Resnick,
Washington, D.C., for Appellant Stephon Mason. Jason M. Weinstein,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this consolidated appeal, Deone Melvin, Adrian Alexander,
Ramone Jones, and Stephon Mason raise numerous challenges to their
convictions for various offenses related to drug trafficking, money
laundering, and/or possession of firearms. Jones also challenges
his sentence. Finding no reversible error, we affirm the district
court’s judgments.
I
A
Some time in 1997, Shahid Omar, who was running a drug
distribution operation in Maryland, began to obtain cocaine in New
York from Francisco Despiau. Despiau was a drug trafficker, with
several sources of supply. He also outfitted vehicles with hidden
compartments to help facilitate the transportation of drugs. Over
time, Despiau sold several vehicles outfitted with hidden
compartments to both Omar and Mason.
Despiau’s first transaction with Omar involved two kilograms
of cocaine. Thereafter, Omar made trips to New York every five to
six days, purchasing on average between three and five kilograms of
cocaine. On some of these trips, Omar was accompanied by Mason.
On one occasion, Mason, accompanied by Jones, went to New York to
retrieve from Despiau approximately $35,000, which was previously
left as a deposit for cocaine that ultimately could not be obtained
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at that time. Mason and Jones were unsuccessful on this trip, but
Mason returned to New York a few days later and retrieved the
money.
Once the cocaine arrived in Maryland, Omar sold it to several
customers, including Mason. Mason in turn had customers of his
own, including Aaron Harrod. Harrod met Mason in 1999 and began
purchasing cocaine from him. During one of these transactions,
Mason brought Omar along with him. At the meeting, Harrod and Omar
recognized each other, as they attended high school together.
Based on this earlier acquaintance with Omar, Harrod began
purchasing cocaine directly from Omar to avoid paying the
middleman’s premium charged by Mason.
On September 4, 1999, Harrod met Omar to consummate a three
kilogram transaction. Harrod approached Omar’s vehicle and handed
Mason, who was a passenger in the vehicle, $66,000. Moments later,
Omar shot Harrod seven to eight times, wounding him. Omar was
arrested and detained for the shooting. Thereafter, Mason
attempted to get $25,000 from Despiau to give to Harrod in exchange
for Harrod’s promise not to testify against Omar. When Despiau
asked Mason what he would do if Harrod testified, Mason responded
that he would “do” Harrod to prevent him from testifying. Harrod
eventually received $25,000 and signed an affidavit stating that
Omar did not shoot him. At Omar’s trial, however, Harrod testified
truthfully.
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While Omar was incarcerated, Mason forged a direct
relationship with Despiau. For his first transaction with Despiau,
Mason traveled to New York with Jones and purchased 400 grams of
cocaine. Thereafter, Mason purchased larger quantities of cocaine.
For each of these transactions, Mason paid Omar a fee because Omar
was responsible for finding Despiau as a source of cocaine.
In April 2000, law enforcement officers searched Mason’s blue
Ford Windstar. In the hidden compartment under the rear seat, the
officers found a cache of weapons, including the gun that Omar had
used to shoot Harrod. Following this search, Mason was arrested
and incarcerated. As a result, Mason gave Melvin and Jones
permission to contact Despiau, so that they could obtain cocaine
from Despiau while Mason was incarcerated.
While Mason was incarcerated, Melvin and Jones traveled
regularly, by themselves and with others, to buy cocaine from
Despiau. On average, Melvin and/or Jones picked up approximately
ten kilograms of cocaine per week. On one occasion, they purchased
approximately thirty kilograms of cocaine. Melvin and Jones also
obtained from Despiau numerous vehicles containing hidden
compartments. Most if not all of the vehicles were placed in names
other than those of the true users.
Melvin and Jones were assisted by drivers who picked up
cocaine from, and delivered drug money to, Despiau. Melvin used
Alexander as a driver, while Jones used Bennie Wilder.
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In letters that Mason wrote to Melvin and Jones from jail,
Mason insisted that Melvin and Jones pay him a fee every time they
obtained cocaine from Despiau. In the late summer of 2002, Mason
was released from jail and immediately began to purchase cocaine
from Despiau. Between the summer of 2002 and the spring of 2003,
Melvin, Mason, and Jones together distributed at least eighty
kilograms of cocaine. Mason distributed some cocaine and cocaine
base (crack) that he prepared in a microwave to Brian Elzey.
Wilder also purchased cocaine from Mason in order to “cook” it into
crack for resale.
By the spring and summer of 2003, Jones and Mason ran up such
huge debts--Jones owing as much as $100,000, while Mason owed
approximately $40,000--that Despiau cut off their supply of cocaine
and sought to collect the money owed to him from prior deals.
Melvin, Jones, Mason, and Alexander became increasingly frustrated
by their inability to get more cocaine from Despiau and looked for
alternate sources of supply.
During the summer of 2003, the Drug Enforcement Administration
(DEA) intercepted conversations occurring over telephones utilized
by Mason and Melvin, including numerous conversations concerning
the sale and purchase of cocaine. Melvin and Alexander were
overheard discussing which vehicles with hidden compartments should
be taken to New York for the purpose of bringing back cocaine and
strategies for avoiding police detection during these trips.
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Melvin, Jones, Mason, Alexander, and others discussed how they
could pay off the debts owed to Despiau and how soon thereafter
they would be able to get more cocaine. Melvin and Jones discussed
an incident in which Alexander had fled from police after being
stopped because he had a gun in the glove compartment. Alexander,
in another intercepted call, described an incident in which he was
shot at and had to go to his vehicle to retrieve a gun and return
fire. Other intercepted conversations concerned weapons and the
titling of vehicles and assets in the names of other persons,
including Audrey Melvin (Deone Melvin’s mother) and Derrick Tobias.
At the culmination of the investigation, on July 31, 2003,
Melvin, Jones, and Mason were arrested, along with other
codefendants. Law enforcement officers also executed search
warrants at multiple locations. The officers found a Glock .45
caliber pistol in Melvin’s bedroom at the apartment he shared with
Jones in Upper Marlboro, Maryland. During wiretapped calls, Melvin
and Jones discussed placing guns at the home of Dana Dark at 4310
Lavender Lane in Bowie, Maryland, because of their concerns that
law enforcement might search their apartment. At the Lavender Lane
location, the officers recovered a Ruger 9 mm pistol, a Heckler &
Koch .40 caliber pistol, an Intratec 9 mm pistol, and a Masterpiece
Arms .45 caliber pistol.
In an area of Audrey Melvin’s home utilized by Deone Melvin,
agents found a rifle, a digital scale with cocaine residue, a Pyrex
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dish with crack residue, and other materials used for the packaging
and cooking of cocaine, as well as a money counter. Upon his
arrest, Melvin voluntarily waived his Miranda1 rights and agreed to
be interviewed by law enforcement officers.
At Mason’s home at 415 Aragona Drive in Fort Washington,
Maryland, law enforcement officers recovered a .38 caliber revolver
with an obliterated serial number. In the hidden compartment of
the blue Ford Explorer parked at the home, the officers found
approximately 125 grams of cocaine and a Heckler & Koch .45 caliber
pistol.
In December 2003, law enforcement officers located Alexander
at his girlfriend’s home. In a Chevrolet Tahoe registered to
Alexander’s brother, but used by Alexander, the officers found a
Heckler & Koch .40 caliber handgun.
B
On November 13, 2003, by way of a superseding indictment,
Melvin, Jones, Mason, and Alexander were charged, along with twelve
others, in a fifteen-count indictment returned by a federal grand
jury sitting in the District of Maryland. In Count One, Melvin,
Jones, Mason, and Alexander were charged, with several others,
with conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine and fifty grams or
more of crack, 21 U.S.C. §§ 841(a)(1) and 846. In Count Three,
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Melvin, Jones, and Mason were charged with conspiracy to commit
money laundering, 18 U.S.C. § 1956(h). This count was premised on
the numerous transactions where members of the conspiracy acquired
vehicles and titled those vehicles in other people’s names (usually
relatives) to hide the facts that those vehicles were acquired with
drug proceeds and used by the members of the conspiracy. In Counts
Four and Six, respectively, Jones and Mason were charged with money
laundering, and aiding and abetting the same, id. §§ 2
and 1956(a)(1). These counts related to the acquisition and
titling of two Ford Explorers. In Count Five, Melvin was charged
with distribution of cocaine, and aiding and abetting the same, id.
§ 2, 21 U.S.C. § 841(a)(1). This count related to a drug
transaction involving Melvin. In Counts Eight, Nine, and Ten,
Melvin was charged with possession of a firearm in furtherance of
a drug trafficking crime, and aiding and abetting the same, id.§ 2, 21 U.S.C. § 924(c)(1). Of note, Count Nine related to the
firearms found in Melvin’s bedroom at the apartment he shared with
Jones, and Count Ten related to the firearms recovered at Lavender
Lane. Jones was also charged with a § 924(c)(1) offense in Count
Ten relating to the firearms found at Lavender Lane. Melvin (in
Count Eleven), Jones (in Count Twelve), and Mason (in Counts
Thirteen and Fourteen) were charged with possession of a firearm by
a convicted felon, and aiding and abetting the same, 18 U.S.C. §§ 2and 922(g)(1). Count Eleven related to the rifle found in Audrey
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Melvin’s home in an area used by Melvin; Count Twelve related to
the firearms found at Lavender Lane; and Counts Thirteen and
Fourteen related to the firearms found at Mason’s home.
Following a jury trial, Melvin was convicted of Counts One and
Five; however, the jury found that Melvin’s Count One conspiracy
offense only involved the distribution of cocaine. The jury found
Melvin not guilty on Count Eight and was deadlocked on the
remaining counts. Jones was found guilty of the money laundering
conspiracy charged in Count Three, and the jury was deadlocked on
the remaining counts. Mason was found guilty of only one of the
§ 922(g)(1) counts (Count Fourteen), and the jury was deadlocked as
to the remaining counts. As to Alexander, the jury was unable to
reach a verdict.
In view of the mixed verdict on the superseding indictment,
the government returned a thirteen count second superseding
indictment. In Count One, Jones, Mason, and Alexander were charged
with conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine and fifty grams or
more of crack, 21 U.S.C. §§ 841(a)(1) and 846. This count was
premised on the same conduct that formed the basis of Count One of
the superseding indictment. In Count Three, Melvin and Mason were
charged with conspiracy to commit money laundering, 18 U.S.C.
§ 1956(h). The allegations in this count essentially mirrored the
allegations in Count Three of the superseding indictment. Jones
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(in Count Four) and Mason (in Count Five) were charged with money
laundering, and aiding and abetting the same, id. §§ 2
and 1956(a)(1). Each of these counts related to the acquisition of
a Ford Explorer. Melvin (in Counts Six and Seven), Jones (in Count
Seven), and Mason (in Count Eleven) were charged with possession of
a firearm in furtherance of a drug trafficking crime, and aiding
and abetting the same, id. § 2, 21 U.S.C. § 924(c)(1). Count Six
related to the firearms found in Melvin’s bedroom in the apartment
he shared with Jones, and Count Seven related to the firearms
recovered at Lavender Lane. Count Eleven related to the firearms
recovered at Mason’s home. Melvin, Jones, and Alexander each were
charged with one § 922(g)(1) violation in Counts Eight, Nine, and
Thirteen, respectively. Count Eight related to the rifle found in
Audrey Melvin’s home in an area used by Melvin; Count Nine related
to the firearms found at Lavender Lane; and Count Thirteen related
to the firearm recovered from Alexander’s Tahoe. In Count Ten, the
government charged Mason with possession of cocaine with the intent
to distribute, 21 U.S.C. § 841(a)(1). This count related to the
cocaine recovered from the Ford Explorer parked in front of Mason’s
home on July 31, 2003. The second superseding indictment also
contained a forfeiture allegation.2
2
Count Two of both the superseding indictment and the second
superseding indictment related to allegations that Mason and others
were involved in a conspiracy to distribute crack and PCP.
Ultimately, Count Two of the second superseding indictment was
dismissed by the government.
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Following a second jury trial, a jury convicted the appellants
of the counts outlined above. Melvin received concurrent sentences
of 180 months’ imprisonment on Counts One and Five of the
superseding indictment and Count Three of the second superseding
indictment; a 120 month concurrent sentence on Count Eight of the
second superseding indictment; a five year consecutive sentence on
Count Six of the second superseding indictment; and a twenty-five
year consecutive sentence on Count Seven. Jones received a 300
month sentence on Count One of the second superseding indictment;
a 240 month concurrent sentence on Count Three of the superseding
indictment; a 240 month concurrent sentence on Count Four of the
second superseding indictment; a 120 month concurrent sentence on
Count Nine of the second superseding indictment; and a five year
consecutive sentence on Count Seven of the second superseding
indictment. Mason received a life sentence on Count One of the
second superseding indictment; a 240 month concurrent sentence on
Count Three of the second superseding indictment; a 240 month
concurrent sentence on Count Five of the second superseding
indictment; a 360 month concurrent sentence on Count Ten of the
second superseding indictment; a five year consecutive sentence on
Count Eleven of the second superseding indictment; and a 120 month
concurrent sentence on Count Fourteen of the superseding
indictment. Alexander received a 295 month sentence on Count One
of the second superseding indictment and a 120 month concurrent
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sentence on Count Thirteen of the second superseding indictment.
Each appellant noted a timely appeal.
II
The appellants, individually and collectively, raise several
challenges to the district court’s denial of their motions for
severance. Melvin, Alexander, and Jones argue that their cases
should have been severed from Mason’s case because the evidence
concerning the shooting and robbery of Harrod unfairly prejudiced
their respective cases. Melvin contends that he was entitled to
have his case severed from the cases of the other three appellants
because his acquittal in the first trial of being involved in a
conspiracy to distribute crack precluded the government from
including him in a second trial where the defendants were charged
with conduct he was acquitted of in the first trial.
A
The Supreme Court has indicated that “[t]here is a preference
in the federal system for joint trials of defendants who are
indicted together.” Zafiro v. United States, 506 U.S. 534, 537,
(1993). Under Rule 14(a) of the Federal Rules of Criminal
Procedure, if the joinder of defendants for trial appears to
prejudice a defendant, a district court may sever the defendants’
trials or provide any other relief that justice requires. Fed. R.
Crim. P. 14(a). Accordingly, severance under Rule 14 is warranted
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only when “there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro, 506 U.S. at 539. The defendant must
“establish that actual prejudice would result from a joint trial,
. . . and not merely that a separate trial would offer a better
chance of acquittal.” United States v. Reavis, 48 F.3d 763, 767
(4th Cir. 1995) (citation and internal quotation marks omitted).
The “prejudice must be of a type against which the trial court was
unable to afford protection.” United States v. Faulkner, 17 F.3d
745, 759 (5th Cir. 1994) (citation and internal quotation marks
omitted). Finally, we review the district court’s rulings on
severance and mistrial claims for an abuse of discretion, United
States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989), and factual
findings made in conjunction with these claims are reviewed for
clear error, United States v. Smith, 44 F.3d 1259, 1269 (4th Cir.
1995).
B
Jones and Alexander contend that they were entitled to
severance because the government decided to introduce evidence at
trial involving the shooting of Harrod. We disagree.
Most of the testimony of the witnesses at trial concerned the
distribution of drugs rather than the shooting of Harrod. Thus,
the evidence concerning the Harrod shooting was not the highlight
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of the government’s case on Count One, though it was plainly
relevant to the government’s claim that the conspiracy started with
Omar and Mason and continued with the addition of Jones and
Alexander. The relevancy of the evidence unquestionably counsels
against severance. Moreover, any prejudice flowing from the
admission of the Harrod shooting evidence was substantially
diminished by the evidence that Jones and Alexander possessed
firearms. Finally, judicial economy considerations weigh in favor
of a joint trial here. The case involved numerous defendants, a
multi-count indictment, and a multi-week trial with numerous
witnesses and substantial physical evidence. In order to
completely shield Jones and Alexander from the potentially
prejudicial effect of the Harrod shooting evidence, the district
court would have had to order a separate trial and many of the
witnesses would have had to testify in multiple proceedings. The
need to avoid such wasteful expenditure of judicial resources is
the basis for the default rule that conspirators should be tried
together. Cf. United States v. Pepe, 747 F.2d 632, 651 (11th Cir.
1984) (stating that judicial economy weighed “heavily” against
severance in a case involving six defendants, a seven-count
indictment, and a five-week trial).3
3
Melvin argues that the spillover effect of the Harrod
shooting evidence prejudiced his case. We find no merit to
Melvin’s argument.
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C
Melvin contends that he was entitled to severance at the
second trial because he was acquitted at the first trial of
engaging in a conspiracy to distribute fifty grams or more of
crack. According to Melvin, because of his partial acquittal on
Count One, the government “was collaterally estopped from raising
the issue of ‘crack’ cocaine in relation to . . . Melvin.”
Appellant’s Br. at 12.
For criminal purposes, the doctrine of collateral estoppel
derives from the Fifth Amendment’s guarantee against double
jeopardy. Ashe v. Swenson, 397 U.S. 436, 445 (1970). As the Court
explained in Ashe, “when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future lawsuit.” Id.
at 443. Similarly, as we have held previously, “[d]ouble jeopardy
is a constitutional bar not only to retrial for the same offense,
but also to relitigation of adjudicated issues whether they emerge
in trials for the same or distinct offenses.” United States v.
Nash, 447 F.2d 1382, 1384 (4th Cir. 1971). Although the doctrine
of collateral estoppel was first developed in the realm of civil
litigation, it now constitutes a fixed principle of federal
criminal law. See United States v. Oppenheimer, 242 U.S. 85, 87,
(1916) (“It cannot be that the safeguards of the person, so often
and so rightly mentioned with solemn reverence, are less than those
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that protect from a liability in debt.”). Collateral estoppel is
not to be applied mechanically, however, but only with “realism and
rationality.” Ashe, 397 U.S. at 444.
In United States v. Fiel, 35 F.3d 997 (4th Cir. 1994), we
identified the five elements relevant to a collateral estoppel
claim. They are:
(1) whether the issue in question is identical to the
previous issue;
(2) whether it was actually determined in the prior
adjudication;
(3) whether it was necessarily decided in that
proceeding;
(4) whether the resulting judgment settling the issue was
final and valid; and
(5) whether the parties had a full and fair opportunity
to litigate the issue in the prior proceeding.
Id. at 1006. In order for a criminal prosecution to be barred by
collateral estoppel under the Fiel test, each of these five
elements must be resolved in the movant’s favor. United States v.
Ruhbayan, 325 F.3d 197, 202 (4th Cir. 2003). In seeking relief
here, Melvin contends that the Fiel test is satisfied.
In assessing a collateral estoppel claim, a reviewing court is
obliged to “examine the record of [the] prior proceeding, taking
into account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have grounded
its verdict upon an issue other than that which the defendant seeks
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to foreclose from consideration.” Fiel, 35 F.3d at 1006 (citation
and internal quotation marks omitted).
In the second trial, Melvin was not charged in Count One, the
drug conspiracy count. He was charged with participating in a
§ 1956(h) money laundering conspiracy, two violations of
§ 924(c)(1), and one § 922(g)(1) violation. The unlawful activity
listed in the money laundering count was the distribution of
“controlled substances.” The predicate drug offense in Melvin’s
§ 924(c)(1) counts was the conspiracy “charged in Count One of
[the] Second Superseding Indictment, to wit, conspiracy to
distribute and to possess with intent to distribute controlled
substances.” In its instructions to the jury on Melvin’s
§ 924(c)(1) counts, the district court made it clear that the drug
offense involved in those counts involved only cocaine. The court
instructed the jury that it was
not being asked to determine whether . . . Melvin is
actually guilty of the drug conspiracy charged in Count
One . . . , [rather] for purposes of determining his
guilt or innocence as to Counts Six or Seven, you should
first determine whether he participated in a conspiracy
to distribute or possess with intent to distribute powder
cocaine.
In our view, the government was not collaterally estopped from
introducing evidence against Melvin related to the distribution of
crack by Melvin or others. The jury in the first trial did not
acquit Melvin of distributing crack; rather, it acquitted him of
conspiring with others to do so. Therefore, the only issue the
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government was prevented from relitigating was whether Melvin
entered into an agreement with others to distribute crack.
Unfortunately for Melvin, none of the offenses he was charged with
in the second superseding indictment required the jury to determine
if he agreed with others to distribute crack.
To be sure, the § 922(g)(1) count, as all parties seem to
concede, has nothing to do with crack. Cf. United States v. Moye,
454 F.3d 390, 395 (4th Cir.) (en banc) (noting that the elements
required for conviction under § 922(g)(1) are: (1) the defendant
previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) the defendant knowingly
possessed, transported, shipped, or received, the firearm; and (3)
the possession was in or affecting commerce, because the firearm
had traveled in interstate or foreign commerce at some point during
its existence), cert. denied, 127 S. Ct. 452 (2006). With regard
to the money laundering conspiracy count, to establish that Melvin
participated in the alleged money laundering conspiracy, the
government was required to prove (1) that there was an agreement
between two or more persons to engage in financial transactions
involving the proceeds from the distribution of cocaine and/or
crack and (2) that Melvin joined the agreement knowing its purpose
and with the intent to further the illegal purpose. United States
v. Meshack, 225 F.3d 556, 573-74 (5th Cir. 2000). As part of its
burden of proof, the government was required to demonstrate the
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existence of an unlawful activity that involved the distribution of
either cocaine or crack. As such, the evidence concerning the
distribution of crack was relevant to the government’s burden of
proving the existence of an unlawful activity. Of course, the
government was not required to prove that Melvin distributed
cocaine and/or crack. All the government was required to prove was
that Melvin, with the requisite knowledge and intent joined a
conspiracy whose aim was to conduct a financial transaction
involving the proceeds of an unlawful activity and that the
unlawful activity involved the distribution of either cocaine or
crack by Melvin or others. Cf. United States v. Magluta, 418 F.3d
1166, 1174 (11th Cir. 2005) (holding that the defendant’s guilt of
the criminal activity charged in the earlier case was not an
element of the money laundering charges he was convicted of in the
second case, as the government did not have to prove that defendant
personally committed the felony drug offenses, only that, with the
requisite knowledge and intent, he conducted a financial
transaction involving the proceeds of felony drug offenses), cert.
denied, 126 S. Ct. 2966 (2006). Accordingly, whether Melvin
entered into an agreement to distribute crack had nothing to do
with the jury’s resolution of the money laundering conspiracy
count.
Finally, with regard to the § 924(c)(1) counts, the district
court’s limiting instruction ensured that the jury did not resolve
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any question concerning crack as it related to Melvin. Indeed, the
jury was instructed only to resolve the question of whether Melvin
possessed the firearms in furtherance of a conspiracy to distribute
cocaine. Thus, the evidence of the distribution of crack played no
role in the jury’s resolution of Melvin’s § 924(c)(1) counts and,
therefore, the doctrine of collateral estoppel has no application
to the jury’s consideration of these counts.
III
Alexander challenges several aspects of the district court’s
ruling denying his motion to suppress. The facts of this issue are
as follows.
On December 2, 2003, law enforcement officers observed a gold
2002 Chevrolet Tahoe used by Alexander parked outside of 4019
Cooper’s Lane, Hyattsville, Maryland, the residence of Alexander’s
girlfriend. At that time, Alexander was a fugitive, with an open
arrest warrant based on the indictment returned on July 9, 2003.
Although the Tahoe was registered to Alexander’s brother, Alexander
previously had been seen driving the vehicle on multiple occasions,
including during meetings with Melvin.4 Believing that Alexander
might be inside his girlfriend’s house, the officers returned the
4
The law enforcement officers also had a reasonable basis to
believe that the Tahoe was used by Alexander during the course of
the conspiracy to take Melvin to New York to acquire cocaine from
Despiau.
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next day, December 3, and again spotted the Tahoe parked at that
address.
The assembled law enforcement officers waited outside the
residence, but Alexander failed to appear, and no one responded to
knocks on the door. The officers decided to seize the Tahoe and
called for a tow truck. The tow truck triggered the Tahoe’s alarm.
Shortly after the Tahoe was towed away to the impound lot,
Alexander emerged from the residence, carrying the keys to the
Tahoe. Alexander was placed under arrest pursuant to the open
warrant. The law enforcement officers did not administer Miranda
warnings. Because Alexander was not wearing shoes or a jacket, the
officers took him inside the residence to get out of the cold while
they waited for Special Agent Cindy Buskey of the Drug Enforcement
Administration, who had followed the Tahoe and the tow truck to the
impound lot, to return and take custody of Alexander.
While Alexander was being escorted toward the residence, he
was not questioned by the law enforcement officers. However, on
his own, Alexander indicated that he “knew the sheriff’s department
was looking for him.” He also repeatedly asked Detective Shawn
Scarlata of the Prince George’s County Police Department, “Where’s
my truck, What happened to my truck?”
Once in the residence, Detective Scarlata asked Alexander if
there were any other persons in the residence or if there were any
weapons present. Alexander indicated that there were no other
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people or weapons in the residence. Detective Scarlata also asked
Alexander if there was “anything the agents needed to know about in
the truck,” to which Alexander responded, “No. What truck are you
talking about? What truck?”
Upon Special Agent Buskey’s return, and without being
questioned, Alexander volunteered that the alarm system on his
truck keys monitored the Tahoe and had alerted him of its seizure.
Special Agent Buskey explained to Alexander that he was under
arrest for his activities with Melvin and would be taken to the
courthouse in Greenbelt. Alexander’s immediate response was, “You
can’t get arrested for driving around with somebody or letting
somebody use your car.”
Detective Harold Black of the Prince George’s County Police
Department and another detective then drove Alexander to the United
States Courthouse in Greenbelt. Without prompting or questioning
by either detective, Alexander volunteered that he knew law
enforcement had been looking for him because he had seen an
indictment; that the indictment described a phone conversation
between Alexander and Melvin which had taken place while Alexander
had been on vacation with his girlfriend in Hawaii; and that,
because Alexander knew that Melvin was “hot,” he had stopped
hanging out with Melvin. Mistakenly believing that Alexander had
already received Miranda warnings, Detective Black then began to
ask Alexander questions, including questions about how long he had
- 24 -
known Melvin. In response to one of these questions, Alexander
indicated that he had known Melvin since high school.
At trial, the government introduced all of the statements
outlined above.
A
Alexander first challenges the seizure of the Tahoe.
Section 881(a)(4) of Title 21 declares that vehicles “which are
used, or are intended for use, to transport, or in any manner to
facilitate the transportation, sale, receipt, possession, or
concealment of [controlled substances]” are forfeitable to the
United States. 21 U.S.C. § 881(a)(4). The government must
establish probable cause amounting to more than a mere suspicion to
believe the property was used to facilitate drug transactions.
United States v. Premises Known as 3639-2nd St. N.E., Minneapolis,
Minnesota, 869 F.2d 1093, 1095 (8th Cir. 1989). Once the
government makes this showing, the burden shifts to the defendant
to show the property is not subject to forfeiture or that a defense
to forfeiture exists. Id. A forfeiture occurs at the time of
the unlawful act, although the seizure may not occur until some
time later. United States v. One 1978 Mercedes Benz, Four-Door
Sedan, VIN: 116-036-12-004084, 711 F.2d 1297, 1302 (5th Cir. 1983)
(holding that § 881 does not place any time limitation on
forfeiture of property, and car seized three months after used in
illegal transaction valid); United States v. Kemp, 690 F.2d 397,
- 25 -
401 (4th Cir. 1982) (seizure of vehicle for forfeiture need not be
contemporaneous with events giving law enforcement officials
probable cause for forfeiture).
In this case, the second superseding indictment contained a
forfeiture allegation, seeking, inter alia, the forfeiture of all
property used to facilitate the commission of the conspiracy
alleged in Count One. Moreover, law enforcement officers had
surveilled Alexander in the Tahoe on multiple occasions, including
when meeting with Melvin, prior to December 3, 2003. The officers
also knew from wiretaps and surveillance that Alexander and his
codefendants had discussed using new or different vehicles for
their trips to New York to obtain drugs and to deliver drug money
and that Alexander’s role in the conspiracy included driving and/or
otherwise arranging transportation for these drug acquisition
trips. Under these circumstances, we agree with the district court
that there was probable cause to support the warrantless seizure of
the Tahoe and that the subsequent inventory search of the vehicle
was proper. See Cooper v. California, 386 U.S. 58, 61-62 (1967)
(holding that, when a vehicle is seized for forfeiture purposes, a
warrantless inventory search can be made); United States v.
Alvarez, 833 F.2d 724, 728 (7th Cir. 1987) (holding that, once a
vehicle is seized for forfeiture, it can be searched without a
warrant).
- 26 -
B
Alexander next challenges the admissibility of the statements
he made to law enforcement. The challenged statements can be
categorized as follows: Group One: Alexander’s statements (in the
form of questions) to Detective Scarlata, “Where’s my truck, What
happened to my truck?”; Group Two: Alexander’s statements (in the
form of questions) to Detective Scarlata, “What truck are you
talking about? What truck?”; Group Three: Alexander’s explanation
to Special Agent Buskey concerning how the Tahoe’s alarm worked;
Group Four: Alexander’s statement to Special Agent Buskey, “You
can’t get arrested for driving around with somebody or letting
somebody use your car”; Group Five: Alexander’s statements to
Detective Black that he knew law enforcement had been looking for
him because he had seen an indictment; that he knew the indictment
described a phone conversation between Alexander and Melvin; and
that he had stopped hanging out with Melvin because he was “hot”;
and Group Six: Alexander’s statement to Detective Black that he had
known Melvin since high school.
In Miranda, the Court held that, prior to interrogating a
suspect who is in custody, the suspect must be advised of certain
rights in order to protect his Fifth Amendment right against self-
incrimination. 384 U.S. at 467-68. Thus, in order to claim a
Miranda violation, a suspect must have been in custody and the
suspect must have been interrogated. Thompson v. Keohane, 516 U.S.
- 27 -
99, 102 (1995). The term “interrogation” under Miranda refers not
only to express questioning but also “to any words or actions on
the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.”
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
With regard to Alexander’s statements in Groups One, Three,
Four, and Five, it is clear that these statements were not made in
response to any police interrogation. Therefore, these statements
were admissible under Miranda and Innis.
Turning to Alexander’s statements in Group Two (in the form of
questions, “What truck are you talking about? What truck?”), the
government contends that these statements were made in response to
valid safety related questions concerning the truck.
In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court
established a narrow exception to Miranda for situations where
there is a threat to public safety. Id. at 657-58. The public
safety exception allows officers to question a suspect without
first Mirandizing him when necessary to protect either themselves
or the general public. Id. at 655-58. For example, in Quarles, an
armed suspect ran into a crowded supermarket where he was
apprehended by the police. Id. at 651-52. The officers searched
the suspect and found an empty shoulder harness. Id. at 652.
Without first giving Miranda warnings, they asked him where he had
- 28 -
put the gun. Id. The suspect told the officers that the gun was
under some empty cartons in the store, and the gun was recovered.
Id. The Court held that, even though the suspect was handcuffed
and posed no threat to the officers when questioned, the
interrogation was permissible because the gun created a clear
danger to the public. Id. at 657. The Court held that “the need
for answers to questions in a situation posing a threat to the
public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment’s privilege against self-
incrimination.” Id. The exception to Miranda also applies where
there is a threat to the officers rather than the public. Id. at
659.
In United States v. Mobley, 40 F.3d 688 (4th Cir. 1994), we
applied Quarles. In that case, agents executing arrest and search
warrants asked Mobley, after he invoked his right to counsel,
whether “there was anything in the apartment that could be of
danger to the agents who would be staying to conduct the search
warrant, such as a weapon.” Id. at 691. In response to the
question, Mobley stated that there was a weapon in the bedroom
closet on one of the shelves, and he led the agents to it. Id.Emphasizing that Quarles stated “an exception to the Miranda rule,”
we cautioned against applying it in “an ordinary and routine arrest
scenario.” Id. at 693. We noted that, absent circumstances
“posing an objective danger to the public or police, the need for
- 29 -
the exception is not apparent, and the suspicion that the
questioner is on a fishing expedition outweighs the belief that
public safety motivated the questioning that all understand is
otherwise improper.” Id. Noting that the apartment had already
been secured, that Mobley was the only person present, and that no
one else lived there, we held that there was “no demonstration of
an ‘immediate need’ that would validate protection under the
Quarles exception.” Id.In this case, under Mobley, the government failed to
demonstrate an immediate need that would validate protection under
the Quarles exception. The Tahoe was already on its way to its
impound lot, and the government did not admit evidence that the
public had access to the impound lot so as to create a public
danger. In the absence of such evidence, we are constrained to
conclude that Alexander’s Group Two statements were improperly
admitted at trial.
With regard to Alexander’s statement that he had known Melvin
since high school (Group Six statement), the government does not
directly address this statement in its brief. However, it is clear
to us that this statement should not have been admitted at trial.
Alexander was in custody at the time and should not have been
questioned by Detective Black concerning his relationship with
Melvin.
- 30 -
The only remaining question, then, is whether the admission of
the Group Two and Group Six statements is harmless error. See
Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir. 1995) (applying
harmless error standard to Miranda/Edwards violation); Mobley, 40
F.3d at 694 (holding that statement obtained in violation of
Miranda was harmless error where other evidence at trial clearly
established guilt).5
In our view, the error in the admission of the Group Two and
Group Six statements is harmless. The government’s case against
Alexander on the drug conspiracy count (Count One) was
unquestionably strong. Alexander was Melvin’s driver and made
5
To the extent Alexander’s argument might be construed as a
claim that, because his Group Two statements are inadmissible, his
subsequent Group Three, Four, and Five statements are so tainted
that they too are inadmissible, we note that the Supreme Court has
rejected this argument. See United States v. Patane, 542 U.S. 630,
642 (2004) (plurality opinion) (holding that Miranda is not subject
to the fruit of the poisonous tree doctrine); Oregon v. Elstad, 470
U.S. 298, 309 (1985) (holding that a statement obtained in
violation of Miranda does not, by its own force, mandate the
inadmissibility of subsequent, similar statements that were
constitutionally obtained); see also Miranda, 384 U.S. at 478(“[v]olunteered statements of any kind are not barred by the Fifth
Amendment and their admissibility is not affected”); United States
v. Cole, 315 F.3d 633, 636 (6th Cir. 2003) (holding that later
voluntary statement was admissible even when earlier statements
must be suppressed). Moreover, to the extent Alexander contends
that his Group Three, Four, and Five statements are involuntary, we
reject this argument as well. These statements were knowingly and
voluntarily made on Alexander’s own initiative. Finally, even
assuming that the Group Three, Four, and Five statements were
tainted by the law enforcement officers’ earlier, unwarned,
custodial interrogation of Alexander, their admission would be
harmless error for the same reasons, as explained infra, that the
admission of the Group Two and Group Six statements is harmless
error.
- 31 -
numerous trips to New York to assist in the acquisition of cocaine.
Numerous wire intercepts demonstrated that Alexander was a major
participant in the conspiracy. With regard to Alexander’s § 922
(g)(1) conviction (Count Thirteen), the government’s evidence was
equally overwhelming. The government presented evidence that the
Tahoe was parked at Alexander’s girlfriend’s residence, and
Alexander was seen on numerous occasions driving the truck. At the
time the Tahoe was seized, Alexander repeatedly asked Detective
Scarlata questions concerning the whereabouts of his truck. He
also implied to Special Agent Buskey that the truck was his.
Alexander possessed the keys to the truck at the time of the
seizure and was familiar with the truck’s alarm system. The
government also presented evidence that vehicles used as part of
the conspiracy were often titled in the names of relatives of the
coconspirators. Moreover, on several occasions, Alexander
discussed the possession/use of weapons with his coconspirators.
That Alexander possessed the weapon recovered during the inventory
search of the Tahoe simply was never seriously in doubt. In sum,
in view of the evidence properly admitted at trial, we conclude
that the admission of the Group Two and Group Six statements is
harmless error.6
6
We also find no merit to Alexander’s argument that there is
insufficient evidence to support his conviction on Count Thirteen.
- 32 -
IV
Following his arrest, Melvin made several statements after
waiving his Miranda rights. In particular, Melvin made statements
about his distribution of crack. He also made statements to the
effect that he knew that one of his customers, Jamere Hall, was
cooperating with law enforcement; that he had been kidnapped in the
course of his drug-trafficking activities; and that he owned guns
and expensive watches. At trial, the government offered these
statements as admissions against Melvin’s interest, see Fed. R.
Evid. 801(d)(2)(A), and, at the conclusion of the trial, the
district court gave the following limiting instruction:
You are cautioned that the evidence of one defendant’s
statement to the authorities after his arrest about his
own conduct may not be considered or discussed by you in
any way with respect to any defendant on trial other than
the defendant who made the statement.
Jones, Mason, and Alexander argue that Melvin’s statements
directly implicated them and therefore were inadmissible under
Bruton v. United States, 391 U.S. 123 (1968). Under Bruton, the
Sixth Amendment prohibits the use, at a joint trial, of an out-of-
court confession by a nontestifying defendant against his
codefendant if the confession directly incriminates the codefendant
as well. Id. at 126. However, “[a] Bruton problem exists only to
the extent that the codefendant’s statement in question, on its
face, implicates the defendant.” United States v. Locklear, 24
F.3d 641, 646 (4th Cir. 1994). As long as the nontestifying
- 33 -
defendant’s statement does not on its face inculpate the
codefendant, it is admissible, even it if it becomes incriminating
when linked with other evidence. See Richardson v. Marsh, 481 U.S.
200, 208-09 (1987).
Unfortunately for Jones, Mason, and Alexander, Melvin’s
statements did not facially incriminate them. His statements
mention no other appellant, whether by name, description, or role.
In fact, the only other person mentioned by Melvin by name was
Jamere Hall. Thus, Melvin’s statements must be linked to other
evidence in order to incriminate the appellants. Under such
circumstances, the admission of Melvin’s statements did not run
afoul of Bruton, as interpreted by the Supreme Court in Richardson.
V
The appellants also challenge the admission of a firearm
seized during a vehicle search following a traffic stop of Jones
and Alexander. The facts concerning this issue are as follows.
On January 25, 2002 at 3:30 a.m., Officer Scott Yankowy of the
Greenbelt Police Department detected on radar a vehicle speeding at
seventy-eight miles per hour in a posted fifty mile per hour zone.
The vehicle did not stop when Officer Yankowy pursued it for at
least a mile while displaying his lights and using his siren. The
driver, Jones, parked in a secluded, poorly-lit area with sparse to
no traffic. Jones exited the vehicle and walked towards Officer
- 34 -
Yankowy in his car, until the officer drew his weapon and told
Jones to stay in his car and ordered all three men in the car to
keep their hands in plain view. Officer Yankowy noticed the back
seat passenger, Alexander, make a movement towards the floorboard
of the car.
Once police backup had arrived and the three men were removed
from the car, Officer Yankowy noticed in plain view in the back
seat what he recognized as a “Slim Jim” burglary tool. A search of
the entire vehicle ensued, leading to the discovery of a loaded .45
caliber handgun in the glove compartment of the vehicle, as well as
drug paraphernalia located in a grocery bag in the passenger
compartment. The gun had a fully-loaded magazine containing five
rounds, with a sixth round loaded in the chamber and ready to fire.
The vehicle was titled in the name of Audrey Melvin, the mother of
Deone Melvin.
At trial, the government offered evidence of the traffic stop,
the arrest of the vehicle occupants, and the discovery of the
firearm and drug paraphernalia. An objection was lodged against
the admission of this evidence, which the district court overruled.
“[E]vidence of acts committed pursuant to a conspiracy and
offered to prove the defendant’s membership or participation in the
conspiracy are not extrinsic evidence, i.e., evidence of other
acts, for purposes of Rule 404(b).” United States v. Garcia
Abrego, 141 F.3d 142, 175 (5th Cir. 1998) (citation and internal
- 35 -
quotation marks omitted). “Acts committed in furtherance of the
charged conspiracy are themselves part of the act charged.” Id.“Thus, evidence of such acts constitutes intrinsic evidence--that
is, direct evidence of the charged conspiracy itself.” Id.In this case, the circumstances of the stop, including the
fact that the vehicle was titled in Audrey Melvin’s name, was
properly offered in connection with Count Three of the second
superseding indictment, the money laundering conspiracy count;
indeed, this incident was charged as an overt act in that count.
Second, the stop, and, in particular, the fact that Jones and
Alexander were stopped in a car titled in Melvin’s mother’s name
with a firearm and drug paraphernalia, was properly offered as
direct evidence of their participation in the drug conspiracy
charged in Count One of the second superseding indictment.
Accordingly, the district court did not err in admitting this
evidence as evidence intrinsic to the conspiracies charged in
Counts One and Three.
VI
Alexander also argues that the district court erred in
admitting evidence of his prior felony conviction for
transportation of a firearm. Prior to trial, Alexander offered to
stipulate to his prior felony conviction for purposes of
establishing his felon status under § 922(g)(1). The government
- 36 -
agreed to stipulate to the fact of Alexander’s prior conviction,
but also sought to introduce the circumstances of the conviction as
Rule 404(b) evidence on the issue of Alexander’s knowledge. The
district court permitted the government to introduce a description
of the circumstances surrounding the conviction under Rule 404(b)
and gave a limiting instruction to the jury.
On appeal, Alexander argues that district court was obligated
to accept his stipulation and was required to bar any evidence
concerning the prior conviction, relying on Old Chief v. United
States, 519 U.S. 172 (1997). This argument is without merit.
The Supreme Court held in Old Chief that the district court
abused its discretion in refusing a defendant’s offer to stipulate
to his status as a felon under § 922(g)(1) because the risk of
prejudice outweighed the probative value of the prior-conviction
evidence. 519 U.S. at 191. Courts have recognized, however, that
Old Chief does not control a case where the prior conviction
evidence is offered to prove an issue which Rule 404(b)
specifically permits to be proven by other crimes evidence,
assuming the issue is relevant and subject, of course, to Rule 403
balancing. See, e.g., United States v. Frazier, 280 F.3d 835, 846-
48 (8th Cir. 2002) (holding that Old Chief does not bar evidence
admitted to prove issue specifically authorized by 404(b)). Here,
the circumstances surrounding Alexander’s prior conviction, which
involved possession of a firearm, was admitted under Rule 404(b) to
- 37 -
establish Alexander’s knowing and intentional possession of the
weapon recovered in the Tahoe. Because this was a permissible use
of Rule 404(b), Alexander’s reliance on Old Chief is misplaced.
In any event, any error here is harmless. Ample evidence
supports the jury’s determination that Alexander knowingly
possessed the firearm found in the Tahoe. When Alexander was
initially apprehended, he possessed the keys to the Tahoe and
referred to the Tahoe as his truck. Indeed, Alexander had been
observed driving the vehicle on many occasions. Moreover, law
enforcement officers had intercepted phone calls in which Alexander
acknowledged keeping a firearm in his vehicle on more than one
occasion. Considering the nature of the evidence before the jury,
we unhesitatingly conclude that the prior conviction played no role
in the outcome of the trial on Alexander’s § 922(g)(1) count. See
United States v. Singleton, 441 F.3d 290, 295-96 (4th Cir. 2006)
(affirming on harmless error basis constructive possession
conviction, despite purported impermissible admission of hearsay).
VII
Melvin contends that there is insufficient evidence in the
record to support his convictions on Counts Six, Seven, and Eight
of the second superseding indictment. More specifically, Melvin
contends that there is no evidence to show that he constructively
possessed the weapons at issue.
- 38 -
When addressing sufficiency of the evidence challenges, we
must affirm the jury’s verdict “if there is substantial evidence,
taking the view most favorable to the Government, to support it.”
Glasser v. United States, 315 U.S. 60, 80 (1942). “[S]ubstiantial
evidence is evidence 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.” United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc). Thus, “we shall reverse a
verdict [only] if the record demonstrates a lack of evidence from
which a jury could find guilt beyond a reasonable doubt.” Id.The government’s proof at trial on these counts related to the
evidence recovered by law enforcement officers during the search of
several locations. In the apartment which Melvin shared with Jones
in Upper Marlboro, Maryland, law enforcement officers found a Glock
.45 caliber pistol in Melvin’s bedroom, the same room where Melvin
was found and arrested. That gun, which was charged in Count Six
(§ 924(c)(1) violation), was found in close proximity to drug
ledgers, drug packaging material, ammunition, and more than $1,200
in drug proceeds. This evidence is more than sufficient to support
Melvin’s conviction on Count Six. See United States v. Mitchell,
104 F.3d 649, 652 (4th Cir. 1997) (holding that, in a § 924(c)(1)
prosecution, the government must prove that the defendant used or
carried a firearm, and the defendant did so during and in relation
to a drug trafficking offense or crime of violence).
- 39 -
Law enforcement officers also searched the home of Dana Dark
at 4310 Lavender Lane, Bowie, Maryland. On June 22, 2003, Antonio
Mines, an associate of Melvin and Jones, had been stopped by law
enforcement officers while driving a green Ford Explorer that had
been transferred from Melvin to Jones to Mason to Mines. During
that stop, law enforcement officers recovered a gun, a white
powdery substance, and money in a hidden compartment. Thereafter,
the officers intercepted a series of calls over the wiretaps in
which Melvin and Jones discussed their concern about the
possibility that law enforcement would obtain search warrants for
their residence in the wake of Mines’ arrest. As a result, Melvin
and Jones discussed the need to store some of their guns at the
Lavender Lane location. In coded language, Melvin directed Jones
to have Audrey Melvin take the guns to Lavender Lane. In a
subsequent call, Audrey Melvin reported to Melvin that she and
Jones had gone that morning to “put those things up at Dana’s
house,” a reference to Lavender Lane. At that location, the
officers found a Ruger 9 mm pistol, a Heckler & Koch .40 caliber
pistol, an Intratec 9 mm pistol, and a Masterpiece Arms .45 caliber
pistol, as well as numerous magazines and rounds of ammunition.
These four weapons were charged in Count Seven, which charged
Melvin and Jones with violating § 924(c)(1), and aiding and
abetting the same.
- 40 -
Melvin contends that there is insufficient evidence in the
record to support the jury’s conclusion that he constructively
possessed the firearms found at the Lavender Lane location. He
points out that the government did not present any evidence that he
possessed the weapons that were ultimately recovered at the
location.
Melvin’s argument misses the mark. In Count Seven, he was
charged with violating § 924(c)(1), and aiding and abetting the
commission of a § 924(c)(1) violation. Under § 924(c)(1), anyone
who uses or carries a firearm, during and in relation to a drug
trafficking crime, is guilty of an offense against the United
States. 18 U.S.C. § 924(c) (1). Further, a defendant is liable as
an aider and abettor for use of a firearm during and in relation to
a drug trafficking crime when his accomplice uses a firearm in
relation to jointly undertaken criminal activity. See Rattigan v.
United States, 151 F.3d 551, 557-58 (6th Cir. 1998) (defendant may
be convicted of aiding and abetting a § 924(c) violation even if
the defendant never had actual possession of a firearm during the
course of committing the crime); United States v. Wilson, 135 F.3d
291, 305 (4th Cir. 1998) (discussing aider and abettor liability
for § 924(c)(1) violations). In this case, there was more than
enough evidence presented at trial for the jury to reasonably find
that Melvin aided and abetted Jones’ possession of the firearms
found at the Lavender Lane location and that those firearms were
- 41 -
used during and in relation to the conspiracy to distribute
cocaine.
At the residence of Audrey Melvin, Melvin’s mother, in a room
used by Melvin and which contained documents in Melvin’s name and
some of his other belongings, law enforcement officers found a
rifle. This evidence is more than sufficient to sustain Melvin’s
Count Eight § 922(g)(1) conviction. See Moye, 454 F.3d at 395(setting forth elements of § 922(g)(1) offense).7
VIII
Jones, Mason, and Alexander argue that the district court
erred when it refused to give a multiple conspiracy instruction to
the jury on Count One of the second superseding indictment. A
multiple conspiracy jury instruction is required only when “the
proof at trial demonstrates that [the defendant was] involved only
in separate conspiracies unrelated to the overall conspiracy
charged in the indictment.” United States v. Squillacote, 221 F.3d
542, 574 (4th Cir. 2000) (citation and internal quotation marks
omitted). A court commits reversible error by not giving such an
instruction only when the defendant can establish that he was
“prejudiced by the variance between the single conspiracy charged
in the indictment and the multiple conspiracies proven at trial.”
7
Of note, the prior felony and interstate commerce elements
are not in dispute.
- 42 -
Id. at 575 (citation and internal quotation marks omitted). To
establish prejudice, the defendant must show that “there are so
many defendants and so many separate conspiracies before the jury
that the jury was likely to transfer evidence from one conspiracy
to a defendant involved in an unrelated conspiracy.” Id.(citation and internal quotation marks omitted). Finally, to
determine whether the evidence suggests a single conspiracy or
multiple conspiracies, we consider factors such as “the nature of
the activities, the location where the alleged events of the
conspiracy occurred, the identity of the co-conspirators, and the
time frame.” United States v. Burns, 432 F.3d 856, 863 (8th Cir.
2005).
In this case, the government’s evidence involved the same
individuals, Jones, Mason, Alexander, Omar, Despiau, Elzey, and
Wilder, working with each other to conduct the same activity, the
distribution of cocaine and crack, in the same locations throughout
the District of Maryland, and during the time frame alleged in the
indictment. As a result, the evidence amply supports the jury’s
conclusion that Jones, Mason, and Alexander were part of the single
conspiracy charged in the indictment. United States v. Bowens, 224
F.3d 302, 308 (4th Cir. 2000) (holding that it was not error for
the district court to refuse to instruct the jury on multiple
- 43 -
conspiracies where evidence did not support the existence of
multiple conspiracies).8
IX
A
Jones claims that the 300 month sentence imposed by the
district court on Count One of the second superseding indictment
violated the principles outlined in the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005).
Under Booker, a sentencing court is no longer bound by the
sentencing range prescribed by the Sentencing Guidelines. United
States v. Moreland, 437 F.3d 424, 431-32 (4th Cir.), cert. denied,
126 S. Ct. 2054 (2006). However, in imposing a sentence post-
Booker, the court still must calculate the applicable sentencing
range under the Guidelines after making the appropriate findings of
fact and consider the range in conjunction with other relevant
factors under the Guidelines and § 3553(a). Id. at 432. This
court will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable.” Id. at 433
(citation and internal quotation marks omitted).
8
Because a multiple conspiracy instruction was not required,
it follows that Jones, Mason, and Alexander were not entitled to a
severance based on their allegation that the government’s evidence
involved multiple conspiracies.
- 44 -
In this case, the jury found that Jones was part of a
conspiracy to distribute in excess of five kilograms of cocaine and
fifty grams of crack. Accordingly, the statutory maximum for Count
One was life imprisonment. 21 U.S.C. § 841(b)(1)(A). In
sentencing Jones, the district court determined that Jones was
responsible for in excess of 150 kilograms of cocaine, which placed
him at a base offense level of 38, United States Sentencing
Commission, Guidelines Manual, § 2D1.2(c)(1). The court added
three levels to Jones’ base offense level for his role as a manager
or supervisor in the drug conspiracy, id. § 3B1.1(b). Coupled with
Jones’ criminal history category of III, his total offense level of
41 produced a sentencing range of 360 months to life imprisonment.
After considering the § 3553(a) factors, the court sentenced Jones
to 300 months’ imprisonment on Count One.
Jones argues that his sentence was higher than the sentence
allowed under the jury-found facts. According to Jones, the jury-
found facts (in excess of five kilograms of cocaine and in excess
of fifty grams of crack) would have placed him at a base offense
level of 32, instead of the base offense level of 38 found by the
district court.
Jones’ argument misconstrues Booker’s constitutional analysis,
which focuses on the actual sentence imposed, not on the offense
level used in computing the sentence under the Guidelines. See
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (“In
- 45 -
Booker, the Court ruled that a sentence exceeding the maximum
allowed based only on the facts found by the jury violates the
Sixth Amendment.”). Here, on the facts found by the jury, Jones
was eligible for a sentence of life imprisonment on Count One. The
actual sentence imposed was 300 months’ imprisonment. Jones’
sentence, in other words, fell short of the maximum sentence that
the court could have imposed based solely upon the jury’s
determinations. Thus, there was no constitutional Booker error.
B
Jones also claims that, because the government failed to
refile an information regarding a prior conviction before trial on
the second superseding indictment, the government violated the
dictates of 21 U.S.C. § 851.9Prior to Jones’ first trial on the drug conspiracy charge, the
government filed a § 851 notice, specifically referring to Jones’
9
Section 851 provides that, where the government seeks to
establish prior convictions for the purpose of increasing the
applicable criminal penalties for a drug offense under § 841, the
proper procedure is as follows:
No person who stands convicted of an offense under this
part shall be sentenced to increased punishment by reason
of one or more prior convictions, unless before trial, or
before entry of a plea of guilty, the United States
attorney files an information with the court (and serves
a copy of such information on the person or counsel for
the person) stating in writing the previous convictions
to be relied upon.
21 U.S.C. § 851(a)(1).
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prior conviction for a felony drug offense. The changes to Count
One of the second superseding indictment were immaterial.
Jones claims that the government was required to refile the
§ 851 notice before it could seek the twenty-year mandatory minimum
sentence outlined in § 841(b)(1)(A). This argument is without
merit.
Under existing case law, the government was not required to
refile its notice after the return of the second superseding
indictment. See, e.g., United States v. Cooper, 461 F.3d 850, 854
(7th Cir. 2006) (holding that, “where the Government files a timely
Section 851 notice, it is not required to file a second notice
after an intervening event, such as a trial or a superseding
indictment, in the same case”); United States v. Mayfield, 418 F.3d
1017, 1020 (9th Cir. 2005) (holding that “filing the information
and giving the section 851(a) notice before [the defendant’s] first
trial obviated any need to refile the information and regive that
notice before his second trial”); United States v. Kamerud, 326
F.3d 1008, 1014 (8th Cir. 2003) (holding that “the government is
not required to refile a notice of enhanced sentence under 21
U.S.C. § 851 after the return of a superseding indictment”); United
States v. Williams, 59 F.3d 1180, 1185 (11th Cir. 1995) (holding
that, once filed, an information need not be refiled for each
consecutive trial in the same court). In this case, the crime
charged in Count One of the second superseding indictment was not
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fundamentally different from the crime charged in Count One of the
superseding indictment, and both indictments were charged in the
same court. Jones was given ample notice that he was subject to an
enhanced sentence if the jury convicted him of a conspiracy to
distribute in excess of five kilograms of cocaine and fifty grams
of crack. Accordingly, we hold that the government’s failure to
refile the § 851 notice prior to Jones’ second trial did not result
in the imposition of an erroneous sentence.
X
For the reasons stated herein, the judgments of the district
court are affirmed.
AFFIRMED
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