United States v. Teel ( 1997 )

Filed: October 16, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-4233
(CR-95-55-F)
United States of America,
Plaintiff - Appellee,
versus
Dwaine Francis Teel,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed October 10, 1997, as
follows:
On the cover sheet, section 3, line 4 -- the district court's
number is corrected to read " CR-95-55-F."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4233
DWAINE FRANCIS TEEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-95-55-F)
Submitted: September 2, 1997
Decided: October 10, 1997
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, John S. Bowler, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dwaine Francis Teel appeals from his convictions for conspiring to
distribute cocaine base in violation of 21 U.S.C. § 846 (1994), and
distributing cocaine base in violation of § 21 U.S.C. § 841 (1994).
The Government's evidence showed that Teel was a "middleman"
in a drug distribution network. The trial testimony related to two drug
sales of crack cocaine that Teel set up between the same parties. Clin-
ton Pritchard, a confidential informant, testified that on January 23,
1995, he was instructed to make a controlled buy. He and his car were
searched and he was wired by the police in preparation for the drug
sale. He went to George Grimes' home, picked Grimes up, and they
drove to a particular area. Grimes told Pritchard to stop at a particular
residence, which had a mailbox with the name "Teel" on it, and Prit-
chard gave Grimes $2200 with which to make the drug purchase.
While Pritchard waited outside, a person he described as "the contact"
came and left in a Nissan 300 ZX. Grimes returned to the car and
presented Pritchard with two ounces of crack cocaine. After Pritchard
dropped Grimes off at his house, Pritchard turned the drugs over to
the police, who again searched him and his car and debriefed him.
Pritchard testified regarding a similar scenario on January 30,
1995. On January 30, however, Pritchard stated that "the contact" was
apparently already at the residence waiting and had driven a Volks-
wagen Jetta. Also, Pritchard saw a young man sitting on the porch,
but he was not able to get a good look at his face because it was driz-
zling that day and the person was wearing a dark hat. Pritchard
believed that the same drug source was involved during this transac-
tion because the dollar amount and the weight of the drug was the
same. Again, Pritchard drove Grimes back, met the police, turned
over the drugs, and was searched and debriefed. Under cross-
examination, Pritchard stated that he believed Grimes did not have the
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drugs on him when he first picked him up because if he had the sale
would have taken place immediately.
Grimes testified that he had known Pritchard for years. Consistent
with Pritchard's testimony, Grimes stated that Pritchard had called on
January 23, asking for a connection to drugs. Based on prior conver-
sations, Grimes understood that Pritchard was looking for "rocks,"
crack cocaine. Grimes called Teel because of earlier conversations in
which Teel encouraged Grimes to channel such drug requests to him.
Teel told him that he could make the connection and confirmed this
with a prompt return call.
Grimes described being picked up by Pritchard on January 23 and
driving to Teel's house. Like Pritchard, Grimes stated that Pritchard
waited outside while he went inside. Grimes further testified that
while he and Teel were waiting for the drugs to be delivered, the only
people in the house were he, Teel, and Teel's mother, who was in a
different room. Michael Hollis then pulled into the driveway and
came into the house. Teel asked Hollis if he had the drugs, and Hollis
reached into his pocket and produced the drugs. Grimes then went
outside to the car to get the money from Pritchard. Grimes also stated
that the crack cocaine was handed from Hollis to Teel and then to
himself.
Grimes described a virtually identical scenario on January 30.
When he and Pritchard arrived at Teel's house, Teel was waiting for
them on the porch. Grimes and Teel went into the house and made
the transaction in the same manner. Grimes took the crack cocaine to
Pritchard who was waiting in the car. Again, the amount of the trans-
action was $2200.
Hollis also testified for the Government. He stated that on January
23, he received a call from Teel indicating that Teel had someone
who wanted to buy crack cocaine. He drove the drugs to Teel's house
in either his blue ZX (Nissan) or white Jetta (Volkswagen). He stated
that he gave the drugs directly to Teel and Teel gave him the money.
Like Grimes, Hollis testified that the drug transaction occurred in the
kitchen and that Teel's mother was in another room. He testified that
an identical transaction occurred on January 30. However, he did not
remember Grimes being in the house at the time of the transaction.
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He repeated that he had given the drugs directly to Teel, not to
Grimes.
The defense did not object to the Government's closing argument.
During defense counsel's closing argument, the defense attacked the
credibility of the Government's witnesses. Defense counsel made the
following statements:
The Government has no evidence that they seized drugs
from Dwaine Teel, they have no undercover agent buying
from Dwaine Teel. There is no, there is no corroboration for
what those two men said on the witness stand.
I submit that you, ladies and gentlemen, can't believe Mr.
Grimes or Mr. Hollis.
Ladies and gentlemen, I submit to you that Mr. Grimes lied
to you on the witness stand. He didn't tell you about the
trips to New York that he told Mr Pritchard [about]. Now,
he said I have just lied to Mr. Pritchard and the Government
will say it is irrelevant to the matters at hand, but it shows
that Mr. Grimes will bend the truth to help himself. And he
is helping himself here to bring in other people to take
accountability for his own acts. He couldn't get straight
whether he was under indictment or not. He just will not
give a straight answer, ladies and gentlemen.
Defense counsel also spoke in the first person and made statements
such as "I find it interesting that . . ." and "I submit to you that . . . ."
In her rebuttal argument, the prosecutor made the following state-
ments:
Ladies and gentlemen, counsel has told you that there is no
corroboration. I think there is corroboration in this case and
I'm sure you realize that's not true. . . . Now, is this a grand
scheme to frame the defendant? I don't think so and I don't
believe you think that either.
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Now, counsel characterized George Wayne Grimes as a
major drug dealer and addict. He certainly did deal drugs,
and he certainly is a drug addict whether he was a major
drug dealer, no evidence of that, but I'm not going to mini-
mize his involvement with drugs. But counsel thinks some-
thing is wrong with the fact that he was going to cooperate.
. . . There was nothing wrong with Grimes' decision to
cooperate. He said Grimes couldn't give you a straight
answer as to whether he is indicted or not. Shame on coun-
sel. Grimes is not a lawyer. He is a man in trouble. And is
there really something wrong with trying to help yourself?
Was there something wrong with Mike Hollis getting on the
stand and telling the truth about what happened. Is there
something wrong with George Grimes getting on the stand
and telling you what really happened. That's how we know.
We are not going to bring anybody in here that doesn't
know what they are talking about that will be obscene.
Those people know what happened, they are cooperating;
sure to help themselves out. That is a primal instinct. What
each of us have the instinct to do is help themselves. That's
what they are doing. That is precisely what they are doing.
I believe they are not lying. I think you see the truth in what
they said.
Teel did not object to the prosecutor's rebuttal argument.
On appeal, Teel claims that the prosecutor's remarks during her
rebuttal argument were prejudicial and require reversal of his convic-
tions and a new trial. Teel specifically complains of the four high-
lighted portions of the prosecutor's rebuttal argument.
Because Teel did not object to the Government's closing argument
we review for plain error. See Fed. R. Crim. P. 52(b); United States
v. Olano, 507 U.S. 725, 734 (1993); United States v. DePew, 932 F.2d
324, 327-28 (4th Cir. 1991). To correct plain error the appellate court
must find (1) an error, (2) which is plain and obvious under existing
law, (3) which is so prejudicial as to affect the outcome of the pro-
ceedings, and (4) which seriously affects the fairness, integrity, or
public reputation of the proceedings. See United States v. Hanno, 21
F.3d 42, 45 (4th Cir. 1994).
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To prevail on a claim of prosecutorial misconduct, a defendant
must show that the remarks were improper and that they prejudicially
affected his substantial rights so as to deprive him of a fair trial. See
United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). Moreover,
rather than looking at isolated statements, we must review the entire
proceeding to see if the alleged misconduct undermined the trial's
fundamental fairness. See United States v. Adam, 70 F.3d 776, 780
(4th Cir. 1995). In determining whether there was prejudice, this court
considers (1) the degree to which the prosecutor's remarks have a ten-
dency to mislead the jury and to prejudice the accused, (2) whether
the remarks were isolated or extensive, (3) absent the remarks, the
strength of competent proof introduced to establish the guilt of the
accused, and (4) whether the comments were deliberately placed
before the jury to divert attention to extraneous matters. See United
States v. Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983).
We need not decide whether the remarks in this case were
improper. We note, however, that viewing the totality of the circum-
stances, the prosecutor's statements were invited, which generally
weighs in favor of the Government. See United States v. Young, 470
U.S. 1, 12-13 (1985). On the other hand, the prosecutor improperly
vouched for the credibility of its witnesses. See United States v.
Moore, 710 F.2d 157, 159 (4th Cir. 1983). In any event, Teel cannot
prevail on his claim because he cannot show prejudice, as required by
Olano.
The prosecutor's remarks may have misled the jury. However, they
were not extensive in light of defense counsel's attack on the Govern-
ment's witnesses. Also, the prosecutor's remarks were only a brief
part of her rebuttal. Although they were the last words spoken to the
jury, which generally weighs in favor of reversal, the prosecutor was
responding to the defense counsel's argument. See Young, 470 U.S.
at 12-13 (holding that conviction will not be reversed if prosecutor's
argument was invited by defense's argument and did no more than
"right the scale"). Furthermore, the evidence of Teel's guilt was
strong, consisting of the testimony of two of his confederates and the
corroboration by Pritchard, who was acting as a confidential infor-
mant. Pritchard and his vehicle were searched before and after the
transaction and he was wired during the transaction. Further, police
observed Pritchard's vehicle as he went to the transactions and con-
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firmed his presence in the vicinity at the time of the second drug
transaction. Although Teel challenges the Government witnesses'
credibility, credibility determinations are for the jury to make and will
not be disturbed on appeal. See United States v. Saunders, 886 F.2d
56 (4th Cir. 1989). There is no suggestion that the prosecutor made
the comments to divert the jury's attention; rather, the remarks were
an invited response to defense counsel's closing argument. Therefore,
we do not find plain error in the prosecutor's closing argument.
Next, defense counsel raises an issue at Teel's request in accor-
dance with Anders v. California, 386 U.S. 738 (1967). Teel contends
that testimony by the case agent to the grand jury resulting in his
indictment was not supported by the evidence at trial. Specifically,
Teel contends that it was never proven that he was a"distributor" of
illegal drugs, that he was part of an "allegiance" of conspirators, or
that he held "proceeds" of drug transactions.
A post-verdict claim of prosecutorial interference with the grand
jury's determination of probable cause is rendered harmless by the
verdict of the petit jury, unless the defect is "so fundamental that it
causes the grand jury no longer to be a grand jury, or the indictment
no longer to be an indictment." Midland Asphalt Corp. v. United
States, 489 U.S. 794, 802 (1989). Here, the petit jury's verdict was
supported by substantial evidence that showed Teel's guilt beyond a
reasonable doubt. Under the facts of this case, we cannot say that any
deficiency of proof before the grand jury was fatal to the validity of
the indictment. Accordingly, we find no basis for reversal.
We affirm Teel's conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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