United States v. Reggie DeLoach ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4441
REGGIE DELOACH, a/k/a Intell
Abrams,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-98-323)
Submitted: January 31, 2000
Decided: March 14, 2000
Before WILLIAMS and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert J. Wagner, WAGNER & WAGNER, Richmond, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Stephen W. Mil-
ler, Assistant United States Attorney, Richmond, Virginia, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Reggie DeLoach, a/k/a Intell Abrams, appeals from his convictions
for possession with intent to distribute cocaine in violation of 21
U.S.C.A. § 841(a)(1) (West 1999), carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C.A. § 924(c) (West Supp.
1999), and possession of a firearm by a convicted felon in violation
of 18 U.S.C.A. § 922(g)(1) (West Supp. 1999). After a careful review
of the record, we affirm.
DeLoach first contends that his prosecution under Project Exile*
violated the equal protection component of the Fifth Amendment's
Due Process Clause because the project affects the racial composition
of prospective juries. In addition, DeLoach claims that the Govern-
ment selectively prosecuted him, because the vast majority of defen-
dants in Project Exile cases are of his same race. DeLoach argues that
Project Exile unconstitutionally diluted the number of prospective
African-American jurors available for selection to his jury because
the proportion of African-Americans on federal juries is significantly
less than that of juries in the City of Richmond. While DeLoach has
"the right to be tried by a jury whose members are selected pursuant
to nondiscriminatory criteria," Batson v. Kentucky, 476 U.S. 79, 85-86
(1986), he does not have a right to a jury of any particular racial com-
position, see Taylor v. Louisiana, 419 U.S. 522, 538 (1975). DeLoach
proffers no evidence that his jury or federal juries in the Eastern Dis-
trict of Virginia in general are selected in a discriminatory manner.
Hence, we find no constitutional infirmity in the selection of
DeLoach's jury.
_________________________________________________________________
*Project Exile is a federal program initiated in Richmond, Virginia
where the United States Attorney's office actively prosecutes federal
firearm violations that have been diverted to it by state prosecutors. See
United States v. Nathan, No. 98-4750, 2000 WL 37747, at *1-3 (4th Cir.
Jan. 19, 2000) (rejecting federalism challenge to Project Exile).
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We also find DeLoach's selective prosecution argument unpersua-
sive. In order to prove both discriminatory effect and purpose in a
selective prosecution claim, DeLoach must show that similarly situ-
ated individuals of a different race were not prosecuted and that the
decision to prosecute him was based upon an invidious purpose or in
bad faith. See United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996).
DeLoach satisfies neither element, as he has never alleged that per-
sons of other races have been treated differently, and statistical evi-
dence of disparate impact cannot, alone, demonstrate invidious
purpose. See id. at 746 (citing McCleskey v. Kemp, 481 U.S. 279, 297
(1987)).
DeLoach next argues that the district court erred by denying his
pretrial motion requiring the Government to elect between certain
multiplicitous counts. DeLoach argues that, even though the multipli-
citous counts were dismissed at sentencing, he was harmed by the
improper suggestion to the jury that he had committed seven crimes.
The decision whether to require the prosecution to elect between mul-
tiplicitous counts before trial rests within the discretion of the trial
court. See United States v. Johnson, 130 F.3d 1420, 1426 (10th Cir.
1997).
We find that the district court did not abuse its discretion in deny-
ing DeLoach's pretrial motion. The judicial system allows the Gov-
ernment "to carve up criminal conduct into multiple counts, even if
some of the counts are lesser included offenses or constitutionally
identical offenses." United States v. Luskin , 926 F.2d 372, 378 (4th
Cir. 1991). Moreover, the multiplicity problem in this case was reme-
died when the court dismissed the multiplicitous counts at sentencing.
See United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993)
(holding that in context of post-conviction challenges to an indictment
on multiplicity grounds, appropriate remedy is to vacate only offend-
ing convictions); Luskin, 926 F.2d at 378 (stating that when the jury
reaches a guilty verdict on more than one of the multiple counts, the
proper remedy is to strike the multiplicitous convictions). Finally,
even were we to find an abuse of discretion, the error would be harm-
less in light of the strength of the evidence of guilt in this case.
DeLoach next argues that based upon the small amount of cocaine
found on him as well as the absence of standard dealer paraphernalia,
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insufficient evidence exists to sustain his conviction for possession of
cocaine with intent to distribute. DeLoach argues that the drugs were
solely for personal consumption, and that the Government failed to
prove intent to distribute. We disagree.
At trial, the jury heard evidence that DeLoach was traveling under
an alias, was found with cocaine that would have retailed in Virginia
for $1000 to $1200, was traveling from a supply state to a demand
state, showed no physical signs of consumption or addiction, and
lacked any gainful employment that would have allowed him to pay
for the quantity of cocaine he possessed. When viewing this evidence,
as we must, in the light most favorable to the Government, see
Glasser v. United States, 315 U.S. 60, 80 (1942), we find that a ratio-
nal juror could have found beyond a reasonable doubt that DeLoach
intended to distribute the cocaine.
DeLoach next argues that the district court erred by permitting
Irving Moran and J.J. Riani to give expert testimony. DeLoach argues
that the Government failed to provide summaries of their testimony
as required by Rule 16(a)(1)(E) of the Federal Rules of Criminal Pro-
cedure, and that the court erroneously permitted Riani to offer lay
opinion testimony as to matters requiring him to be qualified as an
expert.
The decision whether to impose a sanction for violations of Rule
16(a)(1)(E) rests with the district court's discretion. See United States
v. Jackson, 51 F.3d 646, 651-52 (7th Cir. 1995). The sanction of
exclusion of testimony, however, "is almost never imposed" absent a
constitutional violation or statutory authority for the exclusion. See
United States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999), cert.
denied, 120 S. Ct. 842 (2000). Even where there has been an abuse
of discretion, reversal is inappropriate unless the defendant estab-
lishes prejudice by demonstrating that it is likely that had the Govern-
ment complied with the discovery rule (not had the evidence been
suppressed), the verdict would have been different. See United States
v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997).
Initially, DeLoach fails to establish that the district court abused its
discretion by permitting Moran and Riani to testify. DeLoach never
alleged that he was surprised by the Government's witnesses or the
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content of their testimony; in fact, the record shows that the Govern-
ment provided DeLoach with oral summaries by telephone. More-
over, even assuming the erroneous admission of Moran's and Riani's
testimony, DeLoach cannot establish prejudice. DeLoach at no time
prior to trial complained to the Government or the court that the oral
summary was inadequate. Such failure undercuts any claims of preju-
dice. See United States v. Ortega, 150 F.3d 937, 943-44 (8th Cir.
1998), cert. denied, 119 S. Ct. 837 (1999).
Regarding Riani's testimony, we find that even if the court erred
by admitting it as lay testimony, the error was harmless because Riani
could have been certified as an expert under Rule 702. See Figueroa-
Lopez, 125 F.3d at 1247 (holding that expert testimony erroneously
allowed under Rule 701 was harmless error despite failure to go
through usual process for qualifying expert testimony because witness
gave extensive and detailed explanation of his experience). Riani out-
lined his extensive experience working in drug interdiction, and was
clearly qualified to deliver expert testimony concerning the drug
trade.
Finally, we reject DeLoach's challenges to the admission of a cer-
tificate of analysis from the state crime laboratory that analyzed the
drugs found on his person at the time of his arrest, and to the admis-
sion of the drugs themselves. Even assuming that the district court
erred by admitting the laboratory report as a business record, any
error was harmless as it could have been admitted under the residual
hearsay exception of Rule 807. See United States v. Simmons, 773
F.2d 1455, 1458-59 (4th Cir. 1985). Moreover, because the certificate
identified the drugs DeLoach was carrying as cocaine, there was ade-
quate foundation for admission of the drugs themselves.
Accordingly, we affirm DeLoach's conviction on all counts. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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