United States v. Williamson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4111
ANTHONY JOE WILLIAMSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CR-97-345)
Argued: October 27, 1999
Decided: December 2, 1999
Before WILKINSON, Chief Judge, and WILKINS
and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: William Fletcher Nettles, IV, Assistant Federal Public
Defender, Florence, South Carolina, for Appellant. John Michael Bar-
ton, OFFICE OF THE UNITED STATES ATTORNEY, Florence,
South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States Attor-
ney, Florence, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Anthony Joe Williamson appeals his convictions and sentence for
possession of cocaine base with the intent to distribute, see
21 U.S.C.A. § 841(a) (West 1999), and conspiracy to possess with the
intent to distribute cocaine base, see 21 U.S.C.A. § 846 (West 1999),
contending that the district court erred in denying his motion for mis-
trial, denying his request for certain jury instructions, and enhancing
his sentence for his role in the conspiracy as a leader or organizer.
Finding no reversible error, we affirm.
I.
For nearly three years, members of a drug task force in Marion
County, South Carolina, investigated Williamson's drug trafficking
activities with little success. However, on July 8, 1997, Williamson
was arrested for driving with a suspended license. Pursuant to his
arrest, officers searched Williamson's vehicle and recovered from
under the driver's seat a bag that contained marijuana and 47.4 grams
of cocaine base.
At trial, the Government produced evidence of Williamson's crimi-
nal activities through witnesses to whom he had distributed cocaine
base and from witnesses who had observed Williamson engage in
drug transactions. The Government also offered testimony that Wil-
liamson ran a "crack house" with his cousin, Cathy Lee Legette, and
served as the primary supplier of cocaine base for three well-known
drug dealers in the area. Additionally, the Government presented evi-
dence regarding a "reverse sting" operation in which local law
enforcement officers arranged for a confidential informant to contact
Williamson and set up a meeting for a drug purchase. After the initial
meeting occurred, Williamson agreed to buy a half-pound of cocaine
for $8,500 and set the time and place for the transaction. When Wil-
2
liamson arrived at the appointed place, however, he did not complete
the transaction. The undercover police officer from whom Williamson
was to have purchased the drugs testified that Williamson broke off
the deal when he saw a police vehicle. Williamson did not object to
this testimony. However, Williamson did object when the confidential
informant and another investigating officer speculated as to why he
failed to complete the transaction. Immediately upon sustaining these
objections, the court instructed the jury to disregard that portion of the
witnesses' testimony. Williamson sought no other relief at that time.
During the Government's case-in-chief, the prosecutor asked Val-
erie Lewis, one of Williamson's frequent customers, how long she
had known Williamson. She replied, "When I first went to jail, I
didn't know him until I got out, and I've known him since--about
two years. About two years. But one prior year I knew about him
from his people, by him--he was already in jail." J.A. 205. William-
son moved for a mistrial on the basis that the comment that he had
been in jail was impermissibly prejudicial. During the bench confer-
ence on the motion, Williamson also complained that several of the
Government's witnesses had speculated on Williamson's state of
mind during the aborted reverse sting operation.
The court agreed that Lewis' statement was improper but denied
the motion for a mistrial, preferring instead to give a curative instruc-
tion to the jury. Williamson stated that he would prefer that the court
give the instruction at the conclusion of Lewis' testimony. However,
he did not move for the curative instruction at the appropriate time,
and it was not given.
During the pre-charge conference, Williamson requested that the
district court instruct the jury that a defendant cannot conspire with
a government informant. The court stated that counsel could argue
that point to the jury, but because the court was concerned that Wil-
liamson's requested instruction might confuse the jury, the court was
undecided whether it would give the charge. Williamson indeed
argued to the jury that there can be no conspiracy between a defen-
dant and a police officer or government informant because the officer
or informant would not have the intent to form an unlawful agree-
ment. However, the court did not give the requested instruction. Wil-
liamson made no specific objection to the charge given by the court.
3
Williamson was convicted of possession of cocaine base with the
intent to distribute and conspiracy to possess with the intent to distrib-
ute cocaine base. In sentencing Williamson, the court found that at
least 500 grams of cocaine base was attributable to him and therefore
determined that his base offense level for conspiracy to possess with
the intent to distribute cocaine base was 36. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(2) (1997). 1 The court adjusted that
offense level four levels, to 40, based on a finding that Williamson
was an organizer or leader of a criminal activity involving five or
more persons or that was otherwise extensive. See U.S.S.G.
§ 3B1.1(a). Because the court determined Williamson's criminal his-
tory category to be III, the applicable guideline range was 360 months
to life imprisonment. The court sentenced Williamson to 360 months.
II.
Williamson first alleges that the district court improperly denied
his motion for a mistrial. We review the grant or denial of a motion
for a mistrial for clear abuse of discretion. See United States v.
Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). In order for the denial of
a motion for mistrial to constitute an abuse of discretion, the defen-
dant must establish that he was prejudiced by the improper evidence.
See id.We conclude that the challenged comment did not prejudice Wil-
liamson. The comment was brief, isolated, and made in the course of
a two-day trial in which numerous witnesses testified regarding Wil-
liamson's substantial role in the drug trafficking conspiracy. The mat-
ter arose only incidentally, with neither the witness nor the
Government making any repeated reference to it. We therefore hold
that the district court did not abuse its discretion in denying the motion.2
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1 The convictions were grouped pursuant to U.S.S.G. § 3D1.2.
2 We also conclude that Williamson was not entitled to a mistrial based
on improper testimony speculating about his state of mind. Williamson
cannot demonstrate that he was prejudiced by these statements. There
was overwhelming evidence that he had engaged in numerous other drug
trafficking transactions. Further, the court sustained his objections and
quickly instructed the jury to disregard the comments. See Dorsey, 45
F.3d at 817-18.
4
III.
Next, Williamson contends that the district court should have
instructed the jury that a defendant cannot conspire with police offi-
cers and government informants. We disagree.
Because Williamson did not object to the instructions after they
were given to the jury, as required by Federal Rule of Criminal Proce-
dure 30, our review is for plain error only. See Fed. R. Crim. P. 52(b).
Accordingly, in order to establish our authority to notice the error,
Williamson must demonstrate that the failure to give the instruction
was error, that the error was plain, and that it affected Williamson's
substantial rights. See United States v. Olano , 507 U.S. 725, 732
(1993). Even if Williamson can satisfy these requirements, we retain
discretion to refrain from correcting the error. See id. at 735.
Here, even assuming that the failure to give the instruction was
plain error, Williamson cannot establish that his substantial rights
were affected, i.e., "that the error actually affected the outcome of the
proceedings." United States v. Nicolaou, 180 F.3d 565, 570 (4th Cir.
1999) (internal quotation marks omitted). The court specifically
instructed the jury that members of a conspiracy must intend to
advance the objectives of the conspiracy, and defense counsel argued
to the jury the obvious point that people working in a reverse sting
operation lack such intent. Accordingly, Williamson has failed to
establish our authority to notice the error.
IV.
Finally, Williamson argues that the district court erred in increasing
his offense level by four on the basis of its finding that he was an
organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive. See U.S.S.G. § 3B1.1(a).
Williamson does not challenge the extensiveness of the conspiracy
but maintains that the court erred in finding that he was an organizer
or leader. Among the factors a court should consider in deciding
whether to apply the § 3B1.1(a) enhancement are
the exercise of decision making authority, the nature of par-
ticipation in the commission of the offense, the recruitment
5
of accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1 comment. (n.4). That a defendant is the major sup-
plier of drugs for the charged conspiracy is also relevant to the ques-
tion of whether he is a leader or organizer. See United States v. Banks,
10 F.3d 1044, 1057 (4th Cir. 1993). A determination by the district
court concerning a defendant's role in the offense is a factual determi-
nation reviewable under the clearly erroneous standard. See United
States v. Arnoldt, 947 F.2d 1120, 1128 (4th Cir. 1991).
The evidence in the record demonstrates that Williamson was an
organizer of the charged conspiracy. He had established a distribution
network and, as the primary (if not sole) supplier of drugs for the con-
spiracy, controlled the amount of cocaine base each of his distributors
would have to sell. Indeed, one of his customers testified that when
police pressure on Williamson became too intense, Williamson sim-
ply referred the buyer to one of his distributors for further purchases.
The evidence also suggested that Williamson retained decision-
making authority regarding sales at the crack house. In light of all of
this evidence, we cannot say that the district court clearly erred in
finding that Williamson was an organizer of the criminal activity.3
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3 Although we affirm the enhancement, we note our disappointment in
the Government's brief, which failed to cite authority from this circuit
bearing directly on this issue. See Banks, 10 F.3d at 1057. In addition,
the brief on this issue proved to be of limited assistance to the court as
it consisted only of a little more than one page with no references to the
joint appendix to support its factual assertions. Attorneys should not
assume that this court will take the initiative to comb the record to find
support for undocumented assertions. We also reiterate to the district
court that the application of the sentencing guidelines requires specific
factfinding and enumeration in some detail of the underlying facts on
which the court relies.
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V.
In sum, we conclude that the district court did not commit revers-
ible error in denying Williamson's motion for mistrial, in refusing to
instruct the jury that a defendant cannot conspire with police officers
or government informants, or in enhancing his guideline range four
levels pursuant to § 3B1.1(a). Accordingly, we affirm his convictions
and sentence.
AFFIRMED
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