United States v. David Watts ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4282
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID EARL WATTS, a/k/a High Gear, a/k/a Driver,
Defendant - Appellant.
10-4283
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES BARNARD HAITHCOCK, a/k/a Boss Hog,
Defendant – Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Florence. Terry L. Wooten, District
Judge. (4:08-cr-00372-TLW-1; 4:08-cr-00372-TLW-5)
Argued: September 21, 2011 Decided: November 9, 2011
Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Wynn and Judge Diaz joined.
ARGUED: Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence,
South Carolina; Gregory Poole Harris, HARRIS & GASSER, LLC,
Columbia, South Carolina, for Appellants. Jimmie Ewing, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Jeffrey Mikell Johnson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
This case is on appeal from appellants’ convictions and
sentence for one count of conspiring to possess with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841.
Appellants present five claims of error to this Court: (1) the
district court improperly denied appellants’ motion to suppress
evidence seized in connection with a search of appellant Watts’s
home after the Government lost the search warrant; (2) the
district court erroneously denied appellants’ motion for a
mistrial after the prosecutor improperly relied on statements
not in evidence during her closing arguments; (3) the prosecutor
unfairly attacked appellants’ trial attorneys during the
rebuttal argument, depriving them of a fair trial; (4) there was
insufficient evidence for the court to attribute 6.3 kilograms
of methamphetamine to Watts; and (5) there was insufficient
evidence for the court to impose a two-level, “managerial role”
enhancement to Watts’s sentence. After careful review, we
reject each of these arguments and affirm.
I.
Defendant-appellants David Earl Watts and James Barnard
Haithcock were, along with several others, indicted, tried, and
convicted of one count of conspiring to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C § 841. The
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Government alleged that from 1999 up to indictment, Watts and
Haithcock participated in a conspiracy to produce and sell
methamphetamine with thirty to fifty other people. The police
obtained evidence from a number of sources, including two
searches of Watts’s home.
Before trial Watts joined co-defendant Flint Ratliff’s
motion to suppress evidence that was obtained pursuant to the
2003 search of Watts’s home on grounds that it violated Watts’s
Fourth Amendment rights. At the hearing, the Government
informed the district court that the search warrant and
accompanying affidavit had been lost. After hearing the
testimony of Christopher Page, a narcotics officer with the
Chesterfield County Sheriff’s Office, the court found that the
search warrant did exist, that there was sufficient evidence to
support a finding of probable cause, and that the Fourth
Amendment’s particularity requirement was satisfied.
At trial, the court heard from several witnesses, including
Watt’s ex-wife, Karen Watts (“Karen”). The Government also
introduced evidence obtained in a second search of Watts’s home
conducted in 2005. Appellant Haithcock also took the stand. He
testified, inter alia, that he was arrested in May 2008 in a
methamphetamine investigation. After spending several days in
jail, Haithcock and his attorney met with DEA agents and
provided a proffer statement about his methamphetamine use. On
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cross examination, the prosecutor impeached Haithcock, making
extensive use of the proffer statement. The Government referred
to the proffer during its closing arguments, arguing that “just
based on Mr. Haithcock’s statement . . . to the DEA that you
could convict each of these defendants . . . .” Also during the
prosecution’s closing, the Government made several references to
defense counsel’s argument, calling it a “red herring” defense
that is “improper” and mere “speculation.” The Government spoke
about defense counsel, telling the jury, “They don’t want you to
focus on the testimony. They don’t want you to focus on the
evidence,” and later, “[L]ook at the way he cross examined every
one of these witnesses . . . .” The Government also discussed
the plea agreements it made with several witnesses; it told the
jury that plea agreements “[are] designed, I submit to you, to
force truthful cooperation.”
At the sentencing hearing, the district court attributed
6.3 kilograms of methamphetamine to Watts. The court also
imposed a two-level enhancement for Watts’s leadership role in
the conspiracy. Watts was sentenced to 360 months in prison.
II.
We consider each of appellants’ five claims of error in
turn.
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A. The Lost Search Warrant
Appellant Watts argues that the district court improperly
denied his motion to suppress evidence after the Government
admitted that it lost the search warrant. In hearing an appeal
of a district court’s denial of a motion to suppress, an
appellate court reviews findings of fact for clear error and
determinations of probable cause de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Richardson,
607 F.3d 357, 369 (4th Cir. 2010).
The Fourth Amendment generally requires that before
searching a home, the police must procure a warrant issued by a
neutral magistrate; this warrant must be supported by probable
cause and contain a particular description of the place to be
searched and the items to be seized. U.S. CONST. amend. IV.
Searches conducted without a valid warrant are presumptively
unreasonable, Groh v. Ramirez, 540 U.S. 551, 559 (2004), and the
exclusionary rule bars a prosecutor from introducing evidence
obtained in violation of the Fourth Amendment during its case-
in-chief, Davis v. United States, 131 S. Ct. 2419, 2424 (2011).
However, an officer acting with an objectively reasonable good-
faith belief that the search was in accord with the Fourth
Amendment overcomes deficits in probable cause and
particularity. See id. Moreover, the Government may also use
unconstitutionally obtained evidence to impeach the defendant’s
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testimony. United States v. Leon, 468 U.S. 897, 910 (1984). If
an error is found with a district court’s ruling, this Court
subjects that ruling to harmless error review, asking whether
the defect “affect[ed] substantial rights.” FED. R. CRIM. P.
52(a). Evidence admitted in violation of the Constitution is
harmless if the appellate court finds “the constitutional error
was harmless beyond a reasonable doubt.” United States v. Abu
Ali, 528 F.3d 210, 256 (4th Cir. 2008) (citing Chapman v.
California, 385 U.S. 18, 24 (1967)).
In this case, Watts contends that the Government did not
meet its burden of proof in demonstrating that the lost warrant
both existed and complied with the Fourth Amendment. The
Government responds by arguing that it did meet its burden and
that in any case, the error was harmless. This Circuit has not
had occasion to address the appropriate standard for searches
involving a subsequently lost warrant. It is clear that the
Fourth Amendment’s particularity requirement must be satisfied
by the contents of the warrant itself, and not by its supporting
documents. Groh, 540 U.S. at 557 (finding a constitutional
violation when the affidavit, but not the warrant, was
sufficiently particular). But Groh left open the question of
whether any evidence besides the warrant itself can be used to
prove a missing warrant’s existence or contents. The Eleventh
Circuit considered this question in United States v. Pratt,
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where it held that “when a warrant is not in evidence at a
suppression hearing, a prosecutor must prove, by a preponderance
of the evidence, the missing search warrant’s exact language
describing the place to be searched and the persons or items to
be seized.” United States v. Pratt, 438 F.3d 1264, 1270 (11th
Cir. 2006).
Without ruling on the appropriate legal standard for cases
involving lost search warrants, we find that even if the
Government violated Watts’s Fourth Amendment rights and the
district court erred in failing to suppress the evidence
collected from the search, the error was harmless. Because only
Watts has standing to challenge the search of his home, we do
not consider the effect the alleged Fourth Amendment violation
had on Haithcock’s conviction and sentence.
Over an eight-day trial where more than two dozen witnesses
testified, only two made any mention of the first search of
Watts’s home. * One, Investigator Wayne Jordan, told the jury
that officers found methamphetamine; the other, Christopher
Page, said the police found “several guns,” a set of scales, and
two bags containing what was later determined to be
methamphetamine. None of these facts was necessary to establish
Watts’s guilt. The fact that Watts possessed methamphetamine
*
The search at issue here took place on November 24, 2003;
a second search occurred at the same location on July 14, 2005.
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was effectively admitted by the defense during closing arguments
when counsel told the jury there was “no doubt” that Watts used
methamphetamine. Moreover, the 2005 search of Watts’s home,
which neither appellant challenges, produced substantially the
same evidence against Watts and then some: upon arrival, the
police found Karen and Watts (who was not present at the first
search) sitting in front of a coffee table with two lines of
white powder in front of them; the police also recovered
methamphetamine, plastic baggies, digital scales, a security
monitor, empty gel caps, empty ephedrine boxes, and a cutting
agent. And while we register some concern with respect to the
introduction of evidence that there were guns inside Watts’s
home, we also note that Watts was not charged with any crime
relating to the possession of a firearm.
Besides the evidence obtained by the 2005 search, the
prosecution also put on nine witnesses who testified that they
purchased or received methamphetamine from Watts. Karen and a
woman named Jeannie Street both testified that they provided
Watts with pseudoephedrine pills for the manufacture of
methamphetamine. Ms. Street also said that she allowed Watts to
bury tanks of anhydrous ammonia in her yard. Several witnesses
also told the jury that they saw Watts making methamphetamine,
and three said that Watts himself showed them how to manufacture
the drug. In considering the substantial and mostly uncontested
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evidence admitted into the record against Watts, we find beyond
a reasonable doubt that any Fourth Amendment violation was
harmless.
B. The Motion for a Mistrial
Appellants contend that it was improper for the Government
to refer to Haithcock’s proffer statement to the DEA during its
closing arguments because that statement was never admitted into
evidence. The Fourth Circuit reviews a district court’s denial
of a motion for a mistrial for abuse of discretion. United
States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003). When the
motion concerns the Government’s closing arguments, this Circuit
requires the application of a two-pronged test: “(1) whether
the prosecutor’s remarks or conduct was improper, and (2)
whether such remarks or conduct prejudicially affected the
defendant’s substantial rights so as to deprive [him] of a fair
trial.” Id. (citing United States v. Francisco, 35 F.3d 116,
120 (4th Cir. 1994)). An appellate court also reviews claims of
improper closing arguments for harmless error. FED. R. CRIM. P.
52(a). To find the error harmless, this Court “need only be
able to say with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
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A fundamental rule of law is that “argument is limited to
the facts in evidence.” United States v. Wilson, 135 F.3d 291,
298 (4th Cir. 1998). Past inconsistent statements cannot
normally be used as substantive evidence, as Rule 802 bars
hearsay from being admitted. FED. R. EVID. 802. The defendant’s
previous statements, however, are not hearsay. FED. R. EVID.
801(d)(2)(A). Relevant, non-hearsay evidence is normally
admissible. FED. R. EVID. 402. Here, Haithcock’s statement was
relevant: it directly contradicted several statements he made
during his direct examination. And of course, any party may
impeach a witness’s testimony. FED. R. EVID. 607. Thus, the
statement was straightforwardly admissible. See United States
v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (finding no error
where the district court instructed the jury that it may
consider the defendant’s prior inconsistent statements as
substantive evidence). The only question is whether it was
admitted.
The record indicates that the prosecutor mentioned only one
fact from the proffer that Haithcock did not testify to on
direct or cross examination: that he had “his attorney, Mr.
McBratney” with him when he made the statement. However, we
cannot conclude, based on this one minor detail, that the
prosecution’s closing arguments were improper under Francisco,
much less that they prejudicially affected appellants’
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substantial rights. “[T]o parse through a prosecutor’s closing
statement for minor infelicities loses sight of the function of
our adversary system, which is to engage opposing views in a
vigorous manner.” United States v. Johnson, 587 F.3d 625, 632-
33 (4th Cir. 2009). The district court’s denial of appellants’
motion for a mistrial, therefore, was proper.
C. The Government’s Closing Arguments
Appellants next claim that the prosecution’s comments
during its closing arguments about defense counsel were improper
and that the Government bolstered and vouched for its witnesses.
A district court has broad discretion with respect to oral
arguments. It will be overturned only for abuse of discretion
under Stockton’s two-part test. See Stockton, 349 F.3d at 762.
Appellants did not object to the prosecutor’s comments, a fact
they concede here. Appellant’s Br. 38. When a defendant fails
to object at trial, the appellate court reviews only for plain
error. United States v. Baptiste, 596 F.3d 214, 226 (4th Cir.
2010).
While courts grant counsel great latitude in presenting
their closing arguments, the “guiding principle is that a
prosecutor should not strike ‘foul blows.’” United States v.
Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004), rev’d on other
grounds, 543 U.S. 1112 (2005). It is therefore “improper for a
prosecutor to launch a personal attack upon the defense attorney
12
or upon defense attorneys generally.” Id. Here, the comments
made by the prosecutor about defense counsel, while pointed,
were not personal attacks. It is true that the prosecutor
referred to defense counsel’s theory as a “red herring defense,”
and made comments like “They don’t want you to focus on the
testimony you’ve heard in this case,” and at one point during a
sharp back-and-forth, the Government even commented in reference
to defense counsel’s actions, “It’s misleading, Your Honor, and
I object.” But none of these are personal attacks against the
defendant’s attorney; they reflect a spirited disagreement with
the arguments made by the opposing party and do not concern the
attorneys themselves. See Ollivierre, 378 F.3d at 418 (finding
that the prosecution’s comments, including that defense counsel
“tries to weave in distorted facts to try to make his argument,”
were not improper). Moreover, the comments simply were not
attacks under Ollivierre: litigation at times becomes heated,
and the comments here do not rise to anything near the level of
acrimony necessary to reverse a district court on abuse-of-
discretion grounds.
Similarly, the Government did not impermissibly bolster or
vouch for its witnesses. Impermissible “[v]ouching occurs when
a prosecutor indicates a personal belief in the credibility or
honesty of a witness; bolstering is an implication by the
government that the testimony of a witness is corroborated by
13
evidence known to the government but not known to the jury.”
United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997).
However, such improper comments do not always require retrial:
the issue is whether “the prosecutors’ comments so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” Id. (citing United States v. Mitchell,
1 F.3d 235, 240 (4th Cir. 1993)). With respect to vouching,
this Court adopted the Tenth Circuit’s explanation of the types
of comments that are appropriate with regard to plea agreements
in closing arguments:
Presenting evidence on a witness’ obligation to
testify truthfully pursuant to an agreement with the
government and arguing that this gives the witness a
strong motivation to tell the truth is not, by itself,
improper vouching. . . . Use of the ‘truthfulness’
portions of [a plea agreement] becomes impermissible
vouching only when the prosecutors explicitly or
implicitly indicate that they can monitor and
accurately verify the truthfulness of the witness’
testimony.
United States v. Collins, 401 F.3d 212, 216 (4th Cir. 2005)
(citing United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.
1990)).
Here, the Government did not improperly vouch. The only
statement made with respect to the plea agreements is the
prosecution’s remark, “[I]t’s designed, I submit to you, to
force truthful cooperation.” This did not suggest the
prosecution was able to “monitor and accurately verify the
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truthfulness” of any testimony; it is instead a general comment
implying that the witness has “a strong motivation” to tell the
truth. See also United States v. Celestine, 43 Fed.Appx. 586,
596 (4th Cir. 2002) (finding the prosecutor’s closing remarks
were not improper in part because the phrase “I contend to you”
indicates “routine argument, and not the expression of the
prosecutor’s personal opinion”). As for the charge of
bolstering, there is simply no indication the Government ever
suggested it had evidence not known to the jury that
corroborated any witness’s testimony. Appellant’s argument,
therefore, is rejected.
D. The Quantity of Methamphetamine
Turning to his sentence, Watts argues that the district
court erred in attributing 6.3 kilograms of methamphetamine to
him. This Court reviews a district court’s drug quantity
finding for clear error. United States v. Kellam, 568 F.3d 125,
147 (4th Cir. 2009). That burden is satisfied when the review
of all of the evidence leaves the court “‘with the definite and
firm conviction that a mistake has been committed.’” Easley v.
Cromartie, 532 U.S. 234 (2001) (quoting United States v. United
States Gympsum Co., 333 U.S. 364, 395 (1948)).
When a defendant objects to a quantity of drugs, the
district court must make an independent, factual determination
of the issue. United States v. Williams, 152 F.3d 392, 300 (4th
15
Cir. 1998). In reaching its decision, the district court must
find that it is more probable than not that the defendant was
responsible for at least the quantity of drugs attributable to
him. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir.
2004). Precise calculations of the amount of drugs are not
required; the district court may approximate the quantity to be
used for sentencing. United States v. Uwaeme, 975 F.2d 1016,
1018 (4th Cir. 1992) (quoting 18 U.S.C. § 3742(e) (2003)). A
conspirator may be held accountable for all of the drugs
attributable to the conspiracy as long as it was reasonably
foreseeable that the drugs would be involved in the conspiracy.
United States v. Osborne, 345 F.3d 281, 284-85 (4th Cir. 2003)
(citing United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.
1993)).
In this case, appellants concede that, because of the
conspiracy charge, Watts is liable for the uncontested 2.607
kilograms of methamphetamine attributed to his co-conspirators.
Appellant’s Br. 50. As for the remaining 3.693 kilograms, the
district court relied heavily on the testimony of Karen. In
evaluating testimony, “due regard to the opportunity of the
district court to judge the credibility of the witnesses” shall
be given. Uwaeme, 975 F.2d at 1018. Here, the district court
did not err in crediting Karen’s testimony, notwithstanding
appellants’ arguments that the Wattses had a tumultuous
16
relationship and that Karen did not have significant contact
with Watts during part of the conspiracy. The district court
gave several reasons for finding that Karen’s testimony was
truthful: it noted that her statements were mostly consistent;
that she “substantially incriminat[ed]” herself; that the court
observed her demeanor and found her to be credible; that she had
a basis to know the facts to which she testified; and that her
testimony was credited by the jury. Moreover, the presentence
report attributed 15.3 kilograms of methamphetamine to Watts.
Rather than taking a heavy-handed approach, the district court
“err[ed] on the side of caution,” used “every lowest common
denominator that [it could] use,” and reduced that amount
substantially. The drug weight attributed to Watts, therefore,
was not erroneous.
E. The Managerial Role Sentencing Enhancement
Finally, appellant Watts argues that there was insufficient
evidence for the court to impose a two-level managerial
enhancement at sentencing because Watts, rather than having a
leading or supervisory role in the conspiracy, was merely one
member of a “loose-knit” organization that bought and sold
methamphetamine. The Fourth Circuit reviews a district court’s
decision to apply a sentencing adjustment for clear error.
United States v. Sayles, 296 F.3d 219 (4th Cir. 2002).
17
A district court may impose a two-level enhancement against
a defendant that it finds acted as “an organizer, leader,
manager, or supervisor” of the conspiracy. U.S.S.G. § 3B1.1(c).
In reaching its decision, district courts look to seven factors:
(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
United States v. Cameron, 573 F.3d 179, 1984 (4th Cir. 2009)
(citing U.S.S.G. § 3B1.1, cmt. n.4). Here, the factors point in
favor of a finding that Watts acted in a managerial role. To
begin with, Watts had significant decision-making authority,
acting as a supervisor on a number of occasions: He, for
example, ordered Karen to purchase pseudoephedrine pills and to
“bubble” liquid methamphetamine and would intermittently forbid
Karen from entering the house where he and the other co-
conspirators were cooking methamphetamine. Watts also taught
several of his co-conspirators how to make the drug, including
David Flake, Shaun Runyan, and Robert Rowell. Finally, on one
occasion, a woman named Michelle Goodwin visited Watts to
purchase methamphetamine; Watts directed a woman to pull up
Goodwin’s shirt to see whether she had a recording device. In
looking at the record as a whole, it is clear from the testimony
18
that Watts acted as an organizer and leader in the conspiracy.
The district court did not commit clear error in applying the
two-level managerial enhancement.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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