United States v. Burks ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES K. BURKS, JR., a/k/a Martin
No. 94-5442
Wilson, a/k/a Marcus Allen, a/k/a
Derrick Baxter, a/k/a Nathan King,
a/k/a Marcus Williams, a/k/a
Howard Theodore Wright,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-93-460-A)
Submitted: June 20, 1995
Decided: April 29, 1996
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
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Vacated in part, affirmed in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Drewry B. Hutchinson, Jr., Alexandria, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, Gordon D. Kromberg,
Assistant United States Attorney, Laura Pellatiro Tayman, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Kirby Burks appeals his conviction for conspiracy to distrib-
ute and to possess with the intent to distribute more than fifty grams
of cocaine base, or crack cocaine, 21 U.S.C. § 841(a)(1) (1988); 21
U.S.C.A. §§ 841(b)(1)(A)(iii), 846 (West Supp. 1995), and for engag-
ing in a continuing criminal enterprise (CCE) in which he supervised
five or more persons, 21 U.S.C.A. § 848 (West Supp. 1995).
Although we find no reversible error, we vacate Appellant's conspir-
acy conviction and remand to the district court with instructions to
dismiss that conviction. With regard to his CCE conviction and the
attendant life sentence, however, we affirm.
According to testimony presented at trial, Burks operated an exten-
sive crack cocaine distribution business based in and around Wash-
ington, D.C. from 1990 to 1993. Burks distributed hundreds of
kilograms of cocaine obtained from two California sources, Albert
Martinez and Kevin Backstrom. Burks was aided in this enterprise by
others, including David Liverpool, Maurice and Ronald Hall, Eugene
Spriggs, Keith Parham, Gary Willingham, Anthony Cotton, Todd
Foster, Derrick Pollard, and Robin Burks, who assisted Burks in pick-
ing up drug shipments, provided addresses for receipt of cocaine sent
through the mail, delivered cocaine to Burks's customers, coordinated
deliveries, distribution, and the collection of money owed to Burks,
and helped him "cook" powder cocaine into crack cocaine. Burks also
"fronted" drugs to Foster, Cotton, and others, giving them crack
cocaine to sell and allowing them to keep a portion of the proceeds.
2
Trial testimony also revealed that Nathan King and Howard Wright
gave Burks their social security cards so that Burks could obtain
fraudulent driver's licenses. King also served temporarily as a liaison
between Burks and Backstrom, one of Burks's suppliers. Backstrom
notified King when he arrived in Washington with Burks's cocaine
and stayed in King's house during his visit. King then phoned Burks
to arrange the purchases. Wright allowed Burks to title a sports car
in his name. In addition, Burks paid Wright to appear in court, plead
guilty, and serve the resulting prison sentence after Burks--posing as
Wright--was arrested for a handgun violation. Wright allowed Burks
to trade in another car titled in Wright's name to purchase a Range
Rover for Burks's use in California.
Burks was found guilty after a jury trial of both conspiracy and
operating a CCE. He received two concurrent life sentences as pre-
scribed by the United States Sentencing Guidelines. See United States
Sentencing Commission, Guidelines Manual§ 2D1.1, Ch.V, Pt.A.
(Nov. 1993).1 Burks appealed.
I.
Burks asserts that his convictions were multiplicitous because the
conspiracy and overt acts alleged thereunder were the predicate
offenses used to support the CCE charge. United States v. McManus,
23 F.3d 878, 884 (4th Cir. 1994). The Government concedes on
appeal that if the CCE conviction is affirmed, the conspiracy charge
must be dismissed. We agree. Because, as discussed below, we affirm
the § 848 conviction, Appellant's conviction under § 846 was multi-
plicitous. We must therefore vacate that conviction and remand to the
district court with instructions that the court dismiss the conspiracy
conviction. Id. Because his CCE conviction carries a life sentence
under the guidelines, however, Appellant is not entitled to resentenc-
ing. McManus, 23 F.3d at 884 n.5.
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1 Burks's adjusted offense level for both crimes was 48, and his crimi-
nal history category was II. Under USSG Ch.V, Pt.A, life sentences were
required.
3
II.
Burks claims that his present conviction constitutes double jeop-
ardy in light of prior forfeiture proceedings in Texas and California.
Burks failed to move to quash his indictment and made no objection
at trial on double jeopardy grounds. Therefore, this issue is forfeited
unless he can show plain error by the district court. United States v.
Olano, 61 U.S.L.W. 4421, 4423 (U.S. 1993). To qualify as "plain,"
an error at trial must be clear under existing law, must have preju-
diced the defendant by affecting the outcome at trial, and must seri-
ously impact upon the fairness, integrity, or public reputation of
judicial proceedings. Id. at 4424.
The district court did not plainly err in this instance based on the
information it had before it. The record reflects only that Burks's
$76,585 was seized by officers of the El Paso, Texas, Police Depart-
ment, not federal agents. Assuming this forfeiture constituted "jeop-
ardy," Burks was punished for the same offense by two different
sovereigns, a predicament unaddressed by the Double Jeopardy
Clause. United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir. 1982).
Similarly, Burks fails to establish the nature of the seizure in Califor-
nia by agents of the Drug Enforcement Agency, whether there was a
subsequent forfeiture, or what the grounds of the forfeiture were.2 A
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2 Counsel's claim that Austin v. United States, 61 U.S.L.W. 4811, 4816
(U.S. 1993), "clearly" establishes that all civil forfeitures constitute pun-
ishment misstates the Supreme Court's holding. Austin held only that
forfeitures of conveyances and realty used in drug crimes pursuant to 21
U.S.C.A. § 881(a)(4) & (7) (West 1981 & Supp. 1995), are limited by
the Excessive Fines Clause because of their essentially punitive nature.
Id. at 4811. Although the logic of Austin may extend double jeopardy
protections to § 881(a)(4) & (7) forfeitures, it does not in any way limit
forfeitures of the proceeds of criminal activity under 21 U.S.C.
§ 881(a)(6) (1988). United States v. Tilley, 18 F.3d 295, 299 (5th Cir.),
cert. denied, 63 U.S.L.W. 3420 (U.S. 1994). Moreover, civil in rem for-
feitures of contraband are purely remedial and thus immune from double
jeopardy considerations. Austin, 61 U.S.L.W. at 4812-13 n.2 (citing
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364
(1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237
(1972)).
4
thorough review of the record discloses no information warranting a
double jeopardy analysis by the district court.
III.
The remainder of Burks's appeal centers around the prosecution's
closing argument in which it contended that Burks supervised Nathan
King and Howard Wright as part of the CCE. At the conclusion of the
Government's case in chief, defense counsel moved for a judgment
of acquittal on the CCE count, which the district court denied based
on the evidence that Burks had supervised Maurice and Ron Hall,
Parham, Cotton, Foster, Liverpool, Spriggs and Robin Burks. How-
ever, during its exchange with counsel concerning the motion, the dis-
trict court stated that it believed there was insufficient evidence to
find that King and Wright were supervisees of Burks's.3
Burks maintains that the district court's comments regarding King
and Wright were the law of the case and that the district court should
have instructed the jury that Burks did not supervise King or Wright
for the purposes of § 848. Burks also insists that because no limiting
instruction was given on the CCE claim, the district court erred in not
providing special verdict forms to the jury and instructing them that
they had to reach unanimity on the five persons supervised by Burks
in order to convict him on the CCE count.4 Burks offered no objec-
tions to the prosecution's arguments at trial. He also failed to offer a
limiting or unanimity instruction or to object to the jury instructions
provided. Therefore, we review only for plain error. Olano, 61
U.S.L.W. at 4423.
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3 Thereafter, Burks was cross-examined about his relationship with
both men, admitting as had been attested to by others (1) that King and
Wright gave him their social security cards so that he could establish ali-
ases; (2) that Wright appeared in court, pled guilty, and served a prison
sentence for him; (3) that Wright allowed Burks to title a sports car in
Wright's name; and (4) that Wright allowed Burks to trade in another car
titled in Wright's name so Burks could purchase a Range Rover for use
in California.
4 Contrary to Burks's assertion, the prosecution argued only that Backs-
trom and Derrick Pollard were co-conspirators of Burks, not that they
were his supervisees.
5
The law of the case doctrine is inapplicable in this instance. See
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). There was no
prior ruling by an appellate court establishing the status of King or
Wright. Id. Moreover, the prosecution had no occasion to object to the
district court's denial of Burks's motion for acquittal. Id.Because the jury was not misled regarding the actual conduct of
King or Wright or the law governing CCE convictions, no limiting
instruction was necessary. United States v. Phibbs, 999 F.2d 1053,
1086-87 & n.17 (6th Cir. 1993), cert. denied, 62 U.S.L.W. 3551 (U.S.
1994). Moreover, because King and Wright were not incapable as a
matter of law of being supervised by Burks, see United States v.
Jerome, 942 F.2d 1328, 1330-31 (9th Cir. 1991) (defendant cannot
supervise the "suppliers of his suppliers"), there was no requirement
that the jury reach unanimity on the identity of Burks's five supervis-
ees. Phibbs, 999 F.2d at 1087; see United States v. Cole, 857 F.2d
971, 973 n.1 (4th Cir. 1988), cert. denied, 489 U.S. 1070 (1989).
Therefore, there was no error in failing to give a unanimity instruc-
tion. See, e.g., United States v. Jackson, 879 F.2d 85, 89 (3d Cir.
1989).
We affirm Burks's conviction and sentence for engaging in a CCE,
as prohibited by 21 U.S.C.A. § 848. We remand to the district court
solely for the purpose of dismissing his conspiracy conviction which
has been rendered multiplicitous by our affirmance. 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.
VACATED IN PART; AFFIRMED IN PART; AND REMANDED
6