United States v. Wilkins , 354 F. App'x 748 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4372
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY WILKINS,
Defendant - Appellant.
No. 08-4633
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH HOWARD,
Defendant – Appellant.
No. 08-4635
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PIERRE GENTRY,
Defendant – Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Spartanburg. Henry F. Floyd, District
Judge. (7:07-cr-00294-HFF-6; 7:07-cr-00294-HFF-7; 7:07-cr-
00294-HFF-9)
Argued: October 29, 2009 Decided: December 4, 2009
Before MOTZ and KING, Circuit Judges, and Anthony J. TRENGA,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Bradley Bennett, SALVINI & BENNETT, LLC,
Greenville, South Carolina; Jeffrey Falkner Wilkes, Greenville,
South Carolina; Cameron Boggs, BOGGS LAW FIRM, Greenville, South
Carolina, for Appellants. William J. Watkins, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee. ON BRIEF: Jessica Salvini, SALVINI & BENNETT, LLC,
Greenville, South Carolina, for Appellant Anthony Wilkins. W.
Walter Wilkins, United States Attorney, Columbia, South
Carolina, Regan A. Pendleton, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellants Anthony Wilkins, Kenneth Howard, and Pierre
Gentry (collectively, the “defendants”) appeal from their jury
convictions in the District of South Carolina for being involved
in a wide-ranging cocaine and cocaine base distribution
conspiracy, in contravention of 21 U.S.C. § 846. The defendants
challenge their convictions on multiple grounds, and Gentry also
contests his sentence. More specifically, Wilkins and Gentry
assert that the district court erred in denying (1) their
motions for judgments of acquittal on statute of limitations
grounds, (2) the request for a multiple conspiracy instruction,
and (3) their motion for a mistrial due to prejudicial security
measures at the courthouse. Gentry also contests an evidentiary
ruling made by the trial court on a coconspirator’s statement
and the court’s attribution of a single criminal history point
for a prior marijuana possession conviction. Finally, Howard
pursues an ineffective assistance of counsel claim. As
explained below, we reject the defendants’ various appellate
contentions and affirm the judgments.
I.
A.
On March 14, 2007, a group of twenty individuals, including
the defendants, were charged in Count One of a three-count
3
indictment with conspiracy to distribute cocaine and cocaine
base (also known as “crack”). 1 On January 7, 2008, the
defendants went to trial in Spartanburg, South Carolina, for
this offense, of which they were convicted three days later.
The verdict attributed sixty-five kilograms of cocaine but no
crack to Wilkins; 296 kilograms of cocaine and fifteen ounces of
crack to Gentry; and 132 kilograms of cocaine but no crack to
Howard. On the basis of their convictions, Wilkins, Gentry, and
Howard were sentenced, respectively, to 240, 360, and 253 months
in custody, plus five years of supervised release.
1
More specifically, the allegations of the conspiracy in
Count One of the indictment included the following:
[B]eginning at least on or about August 1, 2000, and
continuing thereafter, up to and including the date of
this Indictment, in the District of South Carolina and
elsewhere, the Defendants, FNU LNU, a/k/a “Little
Joe,” SCOTT MOSLEY, CHARLES REED, a/k/a “Milton
Dixon,” ERIC JENKINS, MARCUS CHAMBERLAIN, ANTHONY
WILKINS, KENNETH HOWARD, ELIZANDRO MARTELL-PONCE,
a/k/a “Alex,” PIERRE GENTRY, NATHANIEL HARRIS, JIMMY
HALL, DERRICK SIMMONS, ERIC JONES, LONDON ANDERSON,
JERRY SIMPSON, DANIEL GREGORY, DALLAS SAMUEL, TRAVIS
WILSON, TRAVIS KENNEDY and LACARLA DAVIS, knowingly
and intentionally did combine, conspire and agree
together and have tacit understanding with each other
and others, known and unknown . . . , to knowingly,
intentionally and unlawfully possess with intent to
distribute 5 kilograms or more of cocaine and 50 grams
or more of cocaine base (commonly known as “crack”
cocaine) . . . .
J.A. 12-13 (emphasis omitted). (Citations herein to “J.A. __”
refer to the Joint Appendix filed by the parties in this
appeal.)
4
B.
1.
The trial evidence established that the conspiracy involved
the transportation and distribution of substantial quantities of
cocaine and crack along the I-85 corridor from Texas to Georgia,
South Carolina, and North Carolina, with additional drugs being
shipped from California to South Carolina. 2 The authorities
initially learned of this scheme when one of the conspirators,
Brad Williams, came forward with information concerning a
homicide investigation in Spartanburg. Through their dealings
with Williams, the Spartanburg authorities and the FBI
identified and pursued the conspiracy’s network of drug dealers
along the I-85 corridor. 3
At trial, the prosecution presented sixteen witnesses,
including five cooperating codefendants and several other
coconspirators, who established the defendants’ involvement in
2
We recount the relevant facts in the light most favorable
to the prosecution, as the prevailing party below. United
States v. Bursey, 416 F.3d 301, 304 n.1 (4th Cir. 2005).
3
To facilitate their drug distribution scheme, various
conspirators from Texas and South Carolina acquired residences
in Georgia, a convenient location between those states.
Multiple residences were affordable because, as the sentencing
court estimated, the drugs involved in the conspiracy had a
wholesale value of $20 million to $30 million. Indeed, during
the conspiracy a kilogram (also known as a “kilo” or a “key”) of
cocaine sold for between $20,500 and $28,000.
5
the charged conspiracy. Seeking to impeach the credibility of
prosecution witnesses and denying involvement in the conspiracy,
the defense presented eight witnesses, including defendants
Gentry and Howard personally. The evidence revealed a
multifaceted drug trafficking scheme, with key participants
introducing other conspirators to each another and the drug
distribution business.
By way of example, defendant Wilkins introduced Brad
Williams to coconspirators Eric Jenkins and Charles Reed, who
were drug suppliers from Texas. The first meeting between
Williams and Jenkins occurred in 2000 at one of Wilkins’s homes
in South Carolina, where Williams was living while evading the
authorities. Indeed, Williams and Jenkins met when Jenkins
delivered two kilograms of cocaine to Wilkins. 4 From 2000 to
2002, Williams purchased an estimated 1500 to 1800 kilograms of
cocaine from the Texas traffickers (Jenkins and Reed) and sold
at least thirty kilograms of cocaine to Wilkins. Additionally,
Wilkins introduced Williams to Marcus Chamberlain, a drug dealer
in Charlotte to whom Williams ultimately delivered substantial
quantities of cocaine. From 2001 to 2003, Williams fronted at
least 600 kilograms of cocaine to Chamberlain, who was a charged
4
When Williams and Jenkins first met, Jenkins actually
brought four kilograms of cocaine to Wilkins’s home, splitting
it evenly between himself and Wilkins.
6
coconspirator in the indictment. 5 Moreover, one of Williams’s
primary drug dealers in Spartanburg, Rashard McKinney, sold
crack to defendant Gentry that he had purchased from Williams.
At trial, Reed acknowledged being “the one getting the
drugs here . . . to Spartanburg” from Texas. J.A. 355. 6 Reed
had met defendant Wilkins through Wilkins’s cousin, a man named
D.C. Black. At their initial meeting, Reed sold Wilkins 250
grams of cocaine; Reed thereafter ensured that Wilkins received
cocaine from each of Reed’s drug deliveries to South Carolina
from Texas, aggregating thirty to thirty-five kilograms by 2002.
Further, Reed had a residence in Atlanta to which Williams and
Wilkins travelled to purchase cocaine.
In addition to introducing defendant Wilkins to Reed, Black
facilitated several drug deals for Wilkins, including one in May
2006 involving a confidential informant named Jermaine Monroe.
Black twice purchased cocaine from his friend defendant Howard,
with whom Black — and other prosecution witnesses — often
played cards. One of the card players was Gary Paden, who Black
5
The “fronting” of drugs occurs when a supplier provides
quantities of drugs to a dealer on consignment, with payment
being made to the supplier from the proceeds of the dealer’s
ultimate sales. See Wolfe v. Johnson, 565 F.3d 140, 145 (4th
Cir. 2009).
6
Two of Reed’s suppliers, codefendants “Little Joe” and
Scott Mosley, were fugitives at the time of the defendants’
trial.
7
had introduced to Howard. Paden purchased large quantities of
cocaine from Howard — a quarter to half a kilogram each time —
once or twice a week for a year. Paden also purchased drugs
from Brad Williams, Black, Monroe, and, indirectly, from
defendant Gentry, who Paden dealt with through Jermaine Monroe.
In contrast, from 2001 to 2005, coconspirator Michael Rosenberg
purchased three to five kilograms of cocaine — a quarter of a
kilogram at a time — directly from Gentry.
From 2000 to 2006, coconspirator Daniel Gregory purchased
one to two kilograms of cocaine per week from defendant Gentry.
Gregory also had cocaine transactions with coconspirator Eric
Jones, who Gentry had introduced to drug dealing. During a one-
year period ending in 2006, Jones purchased, sometimes on a
fronting basis, twenty to twenty-five kilograms of cocaine from
Gentry. Additionally, Gentry was involved in cocaine
transactions with Terry Feaster, who Gregory had introduced to
Gentry. Feaster was also involved in large-quantity cocaine
transactions with defendant Howard, who Feaster characterized as
a friend who “had a family member who . . . had the kilos.”
J.A. 196. Between 2001 and 2003, Feaster purchased cocaine from
Howard on about ten occasions, each time acquiring between one
and two kilograms. During this period, Howard also rented an
apartment for Feaster’s use in Spartanburg.
8
Of significance, defendant Howard also engaged in drug
transactions with a man named V. Wilkins. 7 Describing Howard as
merely one of his “minor sources” for cocaine, V. Wilkins
explained, “I never met [Howard]. I just been to his house and
on his property.” J.A. 246. According to V. Wilkins, his
“middle man connection,” a man named Gregory McHam, had
physically purchased the cocaine from Howard. Id. More
specifically, to purchase a kilogram of cocaine from Howard,
V. Wilkins would give McHam $24,000 in cash; McHam would then
take V. Wilkins’s and his own money into Howard’s residence in
Spartanburg and return with two kilograms of cocaine, one for
V. Wilkins and one for McHam. A major portion of the drug
weight attributed to Howard by the verdict — 104 of 132
kilograms — was predicated on V. Wilkins’s testimony.
2.
During the trial, the defendants made a variety of motions
and objections that are relevant to their appellate contentions.
Defendants Wilkins and Gentry sought judgments of acquittal,
pursuant to Federal Rule of Criminal Procedure 29, premised upon
7
In the record and on appeal, V. Wilkins’s first name is
generally spelled “Verlantra.” In a new trial motion and
supporting affidavit, however, his name is spelled “Velontray.”
We refer to him as “V. Wilkins.”
9
a statute of limitations contention. 8 Wilkins also requested a
multiple conspiracy jury instruction. Gentry objected to the
evidentiary use of certain testimony from Feaster, who was
recounting a statement made to him by Gregory, under the
coconspirator hearsay exception of Federal Rule of Evidence
801(d)(2)(E) (the “coconspirator exception”). The trial court
denied these requests and overruled Gentry’s evidence objection.
3.
After court recessed on the first day of trial, an incident
occurred near the Spartanburg courthouse that gives rise to an
appellate contention pursued by defendants Wilkins and Gentry.
On that occasion, a disturbance arose “toward the back of the
[federal] courthouse.” J.A. 189. The Spartanburg police
requested that the prosecutor notify the trial judge of the
fracas, which apparently involved people yelling and screaming
at each other. The prosecutor informed the court of the
incident early on the second day of trial, outside the presence
of the jury. In response, the court indicated its awareness of
the situation and noted that precautions had been taken. The
court then stated from the bench:
8
It is somewhat ambiguous whether defendant Gentry actually
sought judgment of acquittal on the limitations contention. We
accord him the benefit of doubt, however, and treat such relief
as having been sought.
10
I don’t know whether it pertains to anybody in the
audience or not, but if it does and if they arrest you
on federal property, I’ll be dealing with you and not
some state magistrate, so if you can’t control your
conduct around here, just go somewhere else, but
you’re welcome to be here as long as you can behave.
Id. After the court’s statement, the jury returned to the
courtroom and the trial proceeded.
It was later discovered that the disruption had involved
“members of the defendants’ family,” see J.A. 574, prompting a
heightened police presence around the courthouse during the jury
deliberations. On January 10, 2008, immediately prior to the
jury retiring to deliberate, several police vehicles, including
marked and unmarked cars and an unmarked armored truck, arrived
outside the courthouse. In addition, a police helicopter
conducted flyovers nearby. The police officers remained in
their vehicles, however, and no juror reported any awareness of
the heightened security measures. Nevertheless, after the jury
returned its verdicts, the defendants sought a mistrial because
of these measures. The court denied the mistrial request.
4.
On January 10, 2008, the jury returned its verdicts,
finding each of the defendants guilty on Count One. 9 Soon
9
A fourth codefendant, Nathaniel Harris, was tried with the
defendants, but the jury was initially unable to reach a verdict
on him. After returning its verdicts against the defendants,
the jury resumed deliberations with respect to Harris. The
(Continued)
11
thereafter, defendant Howard secured a new lawyer, who sought
post-trial relief for Howard on the basis of newly discovered
evidence.
In support of Howard’s motion for a new trial, filed on
February 26, 2008, he submitted the affidavit of Gregory McHam —
the “middle man connection” of V. Wilkins, see J.A. 246 —
asserting that McHam did not even know V. Wilkins and had never
purchased drugs from Howard. In response, the prosecution
acknowledged that it had not interviewed McHam, but asserted
that it had provided McHam’s identity to the defense during
pretrial discovery and that Howard’s lawyer thus had the
opportunity to investigate him. The prosecution contended that,
in any event, Howard failed to show that he would have been
acquitted by McHam’s testimony, as it would merely impeach that
of V. Wilkins. At Howard’s sentencing hearing on April 28,
2008, the court ruled from the bench that such evidence was “not
newly discovered,” but was instead “available to [Howard’s]
counsel and there’s no indication of the exercise of due
diligence.” J.A. 593. The court thus denied Howard’s motion,
agreeing that the evidence was impeaching and “would not
necessarily result in an acquittal at trial.” Id.prosecution and Harris then entered into a plea agreement, which
resolved the trial as to Harris.
12
After completion of his Presentence Investigation Report,
defendant Gentry objected to its attribution of a single
criminal history point, pursuant to Guidelines section 4A1.1(c),
based on his 2003 conviction in Maryland for possession of
marijuana. Gentry contended that this conviction should instead
have constituted part of the “instant offense” of conviction,
under Guidelines section 4A1.2, precluding the attribution of a
criminal history point. In Gentry’s sentencing hearing on April
29, 2008, the court rejected this assertion, finding that “there
was absolutely no evidence of marijuana use during the course of
the conspiracy by any of the persons involved in the
conspiracy.” J.A. 669.
5.
The defendants have each filed a timely notice of appeal,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291. The
defendants’ three separate appeals have been consolidated for
disposition in this Court.
Defendants Wilkins and Gentry maintain on appeal that the
district court erred in denying (1) their motions for judgments
of acquittal on statute of limitations grounds, (2) the request
for a multiple conspiracy instruction, and (3) their motion for
a mistrial premised on the heightened security measures during
the jury deliberations. Gentry also appeals the court’s
evidentiary ruling on the coconspirator exception and the
13
court’s attribution of a single criminal history point for his
2003 marijuana conviction. Finally, defendant Howard seeks
relief for the ineffective assistance of counsel, premised
primarily on his trial lawyer’s failure to properly investigate
the case.
II.
We review de novo a trial court’s denial of a motion for
judgment of acquittal, recognizing that a guilty verdict must be
upheld if it is supported by substantial evidence. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). We also
review de novo the question of whether prosecution has been
pursued in a timely manner, in the context of an applicable
statute of limitations. United States v. United Med. & Surgical
Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993). We review
for abuse of discretion a trial court’s decision on whether to
give a proposed jury instruction. United States v. Abbas, 74
F.3d 506, 513 (4th Cir. 1996). We also review for abuse of
discretion a trial court’s ruling on a mistrial motion, United
States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997), as well
as its evidentiary rulings, United States v. Smith, 441 F.3d
254, 261 (4th Cir. 2006). In assessing whether a district court
has properly applied the Guidelines, we review factual findings
for clear error. United States v. Allen, 446 F.3d 522, 527 (4th
14
Cir. 2006). Finally, an ineffective assistance of counsel claim
is cognizable on direct appeal only when the record conclusively
demonstrates that the defense lawyer failed to provide effective
representation. United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008).
III.
A.
Defendants Wilkins and Gentry contend that the district
court should have granted them judgments of acquittal because
the applicable statute of limitations barred their prosecution.
The indictment was returned in March 2007, and the applicable
five-year statute of limitations thus bars the prosecution of
offenses that occurred prior to March 2002. See 18 U.S.C.
§ 3282(a) (providing that “no person shall be prosecuted, tried,
or punished for any offense . . . unless the indictment is
[returned] within five years”). Unfortunately for Gentry,
multiple witnesses confirmed his involvement in very substantial
drug transactions within five years of the indictment. For
example, Gregory had purchased cocaine from Gentry from 2000 to
2006, and Jones purchased cocaine from him in both 2005 and
2006.
Although the evidence regarding Wilkins’s drug-dealing is
somewhat more circumscribed — involving conduct prior to 2002
15
and then in 2006 — his limitations contention also fails to pass
legal muster. In support thereof, Wilkins argues that his 2006
cocaine transaction with Monroe at Black’s home in Spartanburg
was an isolated event, distinct from his earlier conspiratorial
dealings in 2000 and 2001. Wilkins nevertheless failed to show
that he ever withdrew from the conspiracy. And, under our
precedent,
[o]nce a conspiracy is established . . . it is
presumed to continue unless or until the defendant
shows that it was terminated or he withdrew from it.
A mere cessation of activity in furtherance of the
conspiracy is insufficient. The defendant must show
affirmative acts inconsistent with the object of the
conspiracy and communicated in a manner reasonably
calculated to reach his co-conspirators. The burden
of proving withdrawal rests on the defendant.
United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986)
(citations omitted). Simply put, Wilkins presented no evidence
that he withdrew from the conspiracy or that it ended before
March 2002. 10
10
Generally, pursuant to the continuing offense doctrine,
only one relevant aspect of a conspiracy need have occurred
during the limitations period for a prosecution to be timely.
See Brown v. Elliot, 225 U.S. 392, 401 (1912). Since no overt
acts are required to sustain a conviction for a drug conspiracy
under 21 U.S.C. § 846, see United States v. Shabani, 513 U.S.
10, 15 (1994), the dispositive consideration for Wilkins’s
limitations claim is whether he withdrew from the conspiracy or
the conspiracy ended outside the five-year limitations period.
See Walker, 796 F.2d at 49; see also United States v. Seher, 562
F.3d 1344, 1364 (11th Cir. 2009) (“The government satisfies the
requirements of the statute of limitations for a non-overt act
conspiracy if it alleges and proves that the conspiracy
(Continued)
16
Furthermore, Wilkins’s assertion of an isolated 2006
cocaine transaction — independent of the charged conspiracy —
is not at all supported by the record. The 2006 incident
involved a monitored transaction between Wilkins and informant
Monroe at Black’s home. Notably, Monroe and Black both had a
history of involvement in the charged conspiracy: Monroe was
“the first guy [Reed] met” on Reed’s first trip with Jenkins to
South Carolina when the Texas participants were seeking to
expand their business. J.A. 356. Reed met Black on his second
trip, and Black then introduced Reed to Wilkins, to whom Reed
sold cocaine on his subsequent trips. Moreover, Monroe, in
agreeing to cooperate against Wilkins, acknowledged to one of
the officers, “I can’t actually call Mr. Wilkins himself. I
have to go through his cousin [Black].” Id. at 32. This
evidence, viewed in the proper light, confirms a continuing
conspiratorial relationship, undermining Wilkins’s limitations
contention. Finally, although Black’s testimony focused on the
monitored transaction between Wilkins and Monroe, Black further
acknowledged that (1) he was a drug dealer, (2) he had acquired
drugs from Wilkins, and (3) people would pay him for the drugs
and he would “give [the money] to [Wilkins].” See id. at 176-
continued into the limitations period.” (internal quotation
marks omitted)).
17
77. Notably, Black used the plural “they” when testifying to
cocaine deals, further demonstrating that Wilkins’s transaction
with Monroe was not an isolated event.
B.
Defendants Gentry and Wilkins next challenge the trial
court’s denial of a multiple conspiracy jury instruction,
claiming the ruling constituted reversible error because such an
instruction could have affected the drug weights attributed to
them, as well as their limitations claims. More particularly,
Wilkins maintains that the issue of whether he was part of the
alleged conspiracy, rather than involved in some other
conspiracy that terminated in 2001, should have been submitted
to the jury. A primary basis for Wilkins’s pursuit of the
multiple conspiracy instruction was the lack of evidence
concerning his participation in the alleged conspiracy from 2002
to 2006. Notably, however, Wilkins was incarcerated from 2002
to 2004. Wilkins also argued at trial that the evidence
actually proved three separate conspiracies: one in Texas, one
in the Carolinas, and one in Georgia. On the other hand, the
prosecution maintained that a multiple conspiracy instruction
would be confusing and that “if nothing else, [Reed] and Pierre
Gentry and Mr. Wilkins connect all three of those conspiracies.”
J.A. 525. On appeal, Wilkins and Gentry maintain that two
separate conspiracies were proven, separated by a four-year
18
period, with the earlier one obtaining cocaine from Texas and
the later one securing it from California. See, e.g., id. at
195 (discussing Feaster’s method of acquiring cocaine via FedEx
deliveries from California).
The determination of whether multiple conspiracies exist
generally depends upon the overlap of goals, methods, and key
actors. See United States v. Nunez, 432 F.3d 573, 578 (4th Cir.
2005). Indeed, as we have recognized, a single conspiracy can
be comprised of a “loosely-knit association of members linked
only by their mutual interest in sustaining the overall
enterprise of catering to the ultimate demands of a particular
drug consumption market.” Id. (internal quotation marks
omitted). Moreover, a multiple conspiracy instruction is not
required unless the evidence shows that a particular defendant
was involved only in an entirely separate conspiracy, unrelated
to the conspiracy charged. See United States v. Squillacote,
221 F.3d 542, 574 (4th Cir. 2000).
In this prosecution, as the trial court observed, “the
evidence supports the idea that this [was] one ongoing
continuous conspiracy.” J.A. 526. For example, the evidence
linked the defendants to a single drug consortium, with Feaster
linked to drug dealings with both Howard and Gentry, Black to
drug dealings with Howard and Wilkins, and Williams to such
dealings with Gentry and Wilkins. And there was extensive
19
evidence that these conspirators, including Wilkins, Black, and
Gentry, had introduced other participants to each other and the
drug-dealing business. We note, as well, that the defendants
asserted at trial that three conspiracies had been proven, but
argue on appeal that two different conspiracies were shown,
which confirms the potential merit of the prosecution’s concern
about juror confusion. In these circumstances, the trial court
did not abuse its discretion in declining the request for a
multiple conspiracy instruction.
C.
Defendants Wilkins and Gentry next assert that “an extreme
police presence during the jury deliberations” unduly influenced
the jury and requires that their convictions be vacated. Br. of
Appellants 19. They maintain that the jury must have been aware
of the heightened security measures being undertaken, because a
window in the jury room overlooked the street where the police
officers and vehicles were massing, and because a helicopter
flew over the courthouse. They contend that the sudden advent
of such security measures during the trial’s deliberation phase
necessarily biased the jury by creating the impression that the
defendants were dangerous. Accordingly, they assert that the
trial court erred in denying their request for a mistrial.
As the Supreme Court has observed, in the proper
circumstances, even the conspicuous “deployment of security
20
personnel in a courtroom during trial” is not inherently
prejudicial. See Holbrook v. Flynn, 475 U.S. 560, 568-69
(1986). Underlying this rule is the recognition that “society
has become inured to the presence of armed guards in most public
places; they are doubtless taken for granted so long as their
numbers or weaponry do not suggest particular official concern
or alarm.” Id. at 569. In evaluating this mistrial contention,
however, “the question must be not whether jurors actually
articulated a consciousness of some prejudicial effect, but
rather whether an unacceptable risk [was] presented of
impermissible factors coming into play.” Id. at 570 (internal
quotation marks omitted). Thus, we must “look at the scene
presented to jurors and determine whether what they saw was so
inherently prejudicial as to pose an unacceptable threat to
[the] defendant’s right to a fair trial.” Id. at 572.
Nonetheless, “if the challenged practice is not found inherently
prejudicial and if the defendant fails to show actual prejudice,
the inquiry is over.” Id.Importantly, the heightened security measures occurred
outside the courthouse and thus would have been visible only
through a window. In denying the mistrial request, the trial
court found, inter alia, that an alleged SWAT van was actually
an unmarked vehicle resembling an armored car; that the officers
were in their vehicles rather than milling about on the street;
21
and that unmarked cars and those with tinted windows are not
necessarily suspicion-inducing. The court then reasoned that
these measures, even if seen by the jury, could not have been
intimidating since the jury, rather than rushing to find
defendant Harris guilty, continued its deliberations on his case
even after delivering its verdicts with respect to the
defendants. See supra note 9. Finally, the court recognized
that (1) the heightened security measures were necessitated by
the family members’ actions on the first day of trial; (2) no
jurors expressed concern over the security measures, which did
not begin until after the jury was in the courtroom; (3) that
area of Spartanburg generally has a substantial police presence;
and (4) there are two courthouses on that particular street, and
the marked Sheriff’s vehicle could readily be perceived as
connected to the nearby county courthouse.
In these circumstances, these security measures have not
been shown to be so inherently prejudicial as to pose a threat
to a fair trial, and the trial court’s denial of the mistrial
request was well within its discretion.
D.
Defendant Gentry next asserts that the trial court erred in
admitting a statement by Gregory under the coconspirator
exception, which provides that a statement is not hearsay if it
is offered against a party and was made “by a coconspirator of a
22
party during the course and in furtherance of the conspiracy.”
Fed. R. Evid. 801(d)(2)(E). In pursuing this contention, Gentry
maintains that the court erred in admitting Feaster’s rendition
of a statement that Gregory had made to Feaster with respect to
a cocaine deal. More specifically, Gentry argues that the court
erroneously admitted Feaster’s testimony after finding only that
some drug conspiracy existed, and not first finding that the
speaker (Gregory) was a coconspirator and that the statement was
made in furtherance of the charged conspiracy. The disputed
interchange follows:
[Prosecutor]: What sort of business relationship did
you develop with Pierre Gentry as far as dope was
concerned?
[Feaster]: Well, when [Gregory] got out, he hollered
at me. I was — I had some keys. He called me and
told me that Pierre wanted to get some, so I —
J.A. 193-94. The heart of Gentry’s contention is that the
prosecution had not linked Gregory and Gentry as members of the
alleged conspiracy prior to the court’s admission of this
statement, thereby precluding a determination that Gregory made
the statement to Feaster in furtherance of the conspiracy.
In handling an evidentiary issue such as this, it is
notable that a trial court possesses the discretion “to
conditionally admit co-conspirators’ statements subject to the
subsequent satisfaction of the requirements for their
admission.” United States v. Blevins, 960 F.2d 1252, 1256 (4th
23
Cir. 1992). Moreover, an appeals court “may affirm a judgment
where the record reveals that the co-conspirator’s statements
were plainly admissible, whether or not a detailed rationale for
admitting the statements has been stated by the trial court.”
Id.Put simply, this record provides more than ample support
for the proposition that the requirements of the coconspirator
exception were satisfied. First, when he provided the
challenged testimony, Feaster had already testified that he met
defendant Gentry “through a mutual friend . . . Daniel Gregory,”
who had already been convicted of the conspiracy offense. See
J.A. 192-93. Second, Gregory himself testified for the
prosecution — acknowledging his own drug dealings with Gentry —
and was thus subject to cross-examination. For example, Gregory
admitted that he “would set up the drug deals and [Gentry] would
assist [him] on getting [them] accomplished, making drug deals
go through.” Id. at 258. According to Gregory, he introduced
Feaster to Gentry “so we could establish some drug deals.” Id.
at 262. Other coconspirators also testified to Gentry’s
participation in the conspiracy. See, e.g., id. at 271-72
(Jones); id. at 305 (LaCarla Davis); id. at 393 (Rosenberg).
Third, Gregory’s contested statement to Feaster was made around
the year 2004, during the timeframe of the conspiracy and at a
point when Gentry was selling large quantities of cocaine. See
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id. at 262 (2004); id. at 393 (2001-05). Finally, Gregory’s
statement to Feaster satisfies the “in furtherance of” component
of the coconspirator exception, for the statement was “designed
to induce [the listener] either to join the conspiracy or to act
in a way that will assist it in accomplishing its objectives.”
United States v. Shores, 33 F.3d 438, 444 (4th Cir. 1994). In
these circumstances, the trial court did not abuse its
discretion in ruling that the challenged statement was
admissible under the coconspirator exception.
E.
Defendant Gentry’s final contention is that the court erred
in awarding a single criminal history point for his 2003
possession of marijuana conviction. Pursuant to Guidelines
section 4A1.1(c), a single criminal history point should be
awarded for “each prior sentence not [already] counted,” with a
“prior sentence” defined in Guidelines section 4A1.2(a)(1) as
“any sentence previously imposed . . . for conduct not part of
the instant offense.” Gentry contends that the evidence shows
that the alleged conspiracy involved marijuana — as well as
cocaine and crack — since Black admitted to purchasing marijuana
from the Texas conspirators in 1998 and 1999.
This contention fails for multiple reasons. First,
Gentry’s 2003 conviction was in Maryland, outside the geographic
scope of the alleged conspiracy. Moreover, his 2003 conviction
25
was for marijuana possession only, as opposed to possession with
intent to distribute, and the only punishment was a fine. These
facts suggest that only a small quantity of marijuana was
involved in the 2003 case and further distinguish Gentry’s
Maryland conduct from the alleged conspiracy. This conclusion
also comports with Gentry’s admission that he experimented with
marijuana. Thus, the court did not clearly err in finding that
Gentry’s 2003 marijuana conviction was for conduct that was not
part of the charged conspiracy. Accordingly, this sentencing
contention must also be rejected.
F.
Finally, defendant Howard asserts an ineffective assistance
of counsel claim, which has two main components: his trial
counsel failed to properly investigate (as seen in his failure
to interview Gregory McHam), and actually argued in favor of the
prosecution in his closing argument. To establish
constitutionally ineffective assistance of counsel, Howard is
obliged to show (1) objectively unreasonable performance and (2)
prejudice resulting from that deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Generally,
an ineffective assistance of counsel claim “should be raised by
a habeas corpus motion under 28 U.S.C. § 2255 in the district
court and not on direct appeal, unless it conclusively appears
from the record that defense counsel did not provide effective
26
representation.” United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999) (internal quotation marks and alteration
omitted).
Put simply, our review of the record leads to the
conclusion that it fails to “conclusively establish” ineffective
assistance of counsel. See United States v. King, 119 F.3d 290,
295 (4th Cir. 1997) (rejecting ineffective assistance of counsel
claim on direct appeal); see also Massaro v. United States, 538
U.S. 500, 504, 505, 506 (2003) (recognizing that “in most cases
a motion brought under § 2255 is preferable to direct appeal for
deciding claims of ineffective assistance” because the trial
record is “often incomplete or inadequate for [addressing such
claims on direct review,]” thereby risking the failure of
“[e]ven meritorious claims”); cf. United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973) (addressing ineffective assistance
claim on direct appeal because record clearly revealed counsel
had only one hour to prepare for trial). In these
circumstances, Howard’s ineffective assistance of counsel claim
is not cognizable on direct appeal.
IV.
Pursuant to the foregoing, we reject each of the
defendants’ contentions and affirm the judgments.
AFFIRMED
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