United States v. Waddell ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4421
THEODORE THOMAS WADDELL, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4150
WILLIAM LARNELL ECKLES, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4249
BRIAN KEITH LATTIMORE,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-00-46-V)
Argued: February 25, 2003
Decided: April 11, 2003
2 UNITED STATES v. WADDELL
Before WILKINSON and MOTZ, Circuit Judges, and
James P. JONES, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Chiege Ojugo Kalu Okwara, LAW OFFICE OF CHIEGE
O. KALU OKWARA, Charlotte, North Carolina, for Appellant Latti-
more; Denzil Horace Forrester, Charlotte, North Carolina, for Appel-
lant Eckles; Joseph McDonald Wilson, Jr., BROWNE, FLEBOTTE,
WILSON & HORN, P.L.L.C., Durham, North Carolina, for Appellant
Waddell. Thomas Richard Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee. ON BRIEF: Robert J. Con-
rad, Jr., United States Attorney, Asheville, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Theodore Thomas Waddell, Jr., William Larnell Eckles, Jr., and
Brian Keith Lattimore appeal their convictions and sentences for con-
spiracy to possess with intent to distribute cocaine and cocaine base
in violation of 21 U.S.C.A. § 846 (West 1999). After consideration of
the appellants’ claims of error, and for the reasons stated in this opin-
ion, we affirm.1
1
Appellant Eckles filed his notice of appeal after sentencing but before
the entry of judgment and appellant Waddell filed his notice of appeal
UNITED STATES v. WADDELL 3
I.
In December 2000, the appellants were indicted together with Rob-
ert Eugene Mott and charged with conspiracy. In addition, Mott was
charged with being a felon in possession of a firearm and Eckles and
Lattimore were charged with using and carrying a firearm during and
in relation to a drug trafficking offense, or possessing the firearm in
furtherance of such an offense. Prior to trial Mott pleaded guilty to the
conspiracy charge and the government dismissed the firearms charges
against all of the defendants.
At trial in May of 2001, the government contended that the three
appellants, together with Mott, conspired to distribute cocaine in and
around Statesville, North Carolina, from 1991 to 2000. According to
Mott, the government’s principal witness, he arranged for the pur-
chase of powder cocaine in Florida and together with Waddell, trans-
ported it to Statesville, where Eckles assisted Mott in selling the drug
in both its crack and powder forms.
The government presented numerous witnesses who testified that
they had purchased cocaine from the appellants during this time
period. While Mott testified that he had sold cocaine to Lattimore on
only one occasion, Suzanne Ramseur Davis, a former girlfriend of
Lattimore, testified that Eckles and Lattimore had worked together in
the drug business.
The only defense witness was the defendant Eckles, who denied his
involvement in any conspiracy with the other defendants. After a
four-day trial, the jury convicted all of the appellants of the conspir-
acy charge. The jury also returned a special verdict as to each defen-
dant finding that the conspiracy involved five kilograms or more of
powder cocaine and fifty grams or more of cocaine base. At sentenc-
ing hearings on February 11, 2002, Waddell was sentenced to 188
after the guilty verdict but before sentencing. Eckles’ notice was timely,
see Fed. R. App. P. 4(b)(2), and the government does not assert any prej-
udice from Waddell’s time of filing, see United States v. Williams, 81
F.3d 1321, 1327 (4th Cir. 1996). We thus have jurisdiction of the
appeals.
4 UNITED STATES v. WADDELL
months imprisonment, Lattimore to life imprisonment, and Eckles to
360 months imprisonment.
II.
A principal argument made by the appellants concerns a chart used
by the government during argument to the jury. This chart, exhibited
to the jury during the prosecutor’s rebuttal closing statement, pictori-
ally connected the defendants by arrows with government witnesses
and each other. Its display to the jury was accompanied by the follow-
ing remarks of the prosecutor:
I’m not up here with smoke and mirrors. I provided you
three days worth of evidence. Good evidence, hard evi-
dence. Photographs and drugs. Witnesses. And consisten-
cies. The government has made its case. And if you have
any questions about understanding conspiracy and how all
these folks fit together, think about this. You got your three
defendants: Mott, Lattimore, Waddell, and Eckles. You
have the folks who testified —
MR. FULLER [Counsel for Waddell]: Your Honor,
excuse me, I hate to interrupt, but we don’t know what’s on
this chart here.
THE COURT: Show it to counsel, if you will.
MS. ROSE [Prosecutor]: I think I have a copy here.
Three defendants — the four defendants and the various
witnesses that connected them. The way to show the con-
spiracy, the conspiracy being the connection, the agree-
ments. What are the agreements? What took place?
Stevenson, Barringer, Bines all buying from Mott. Talked
about Eckles’ connection as Mott’s right-hand man. They all
talked about the connection with Waddell and Mott and the
big rolling they were doing down in Florida. Eckles and
Mott, those folks who dealt with Mott and Eckles and Eck-
les’ connection with these folks to Lattimore. That’s your
UNITED STATES v. WADDELL 5
conspiracy, members of the jury. If you need a picture, there
it is.
You’ve heard the evidence. You’ve seen the evidence.
You’ve heard a little bit about the law that says, yes, all
these things that took place were a conspiracy. You’re going
to hear it again from the judge. And there’s your evidence
of it as well in a picture.
J.A. 779-80. Counsel for the defendants made no objection to the use
of the chart, although prior to the trial court’s final charge to the jury,
one of the attorneys requested that the chart be taken from the view
of the jury, and the court so directed.
During deliberations, the jury sent a note asking to see the chart.
The trial judge responded in writing as follows:
To the foreperson: Please read this note aloud to the jurors.
Your note says: "Can we see the chart that attorney Rose
referred to in her closing arguments?"
That chart is the type of thing properly used by an attorney
in argument but was not admitted into evidence and so is not
available to be sent back into the jury room. You will have
to use your best recollection of the evidence in your deliber-
ations.
Please let me know if you need anything further or if there
are other questions.
Supp. J.A. 9.
The appellants argue that the use of the chart in argument was
improper and warrants a new trial. No objection was made at trial2
and thus we review this issue under the plain error standard. See Fed.
2
The appellants asserted in their joint brief that an objection had been
made, but conceded at oral argument that the assertion was in error.
6 UNITED STATES v. WADDELL
R. Crim. P. 52(b). To establish plain error, an appellant must show (1)
that there was error; (2) that the error was plain; (3) that the error
affected his substantial rights; and (4) that a failure to notice the error
would "seriously affect[ ] the fairness, integrity or public reputation
of judicial proceedings." See United States v. Olano, 507 U.S. 725,
732-36 (1993).
The use of charts, placards, diagrams, and other visual aids in argu-
ment to the jury is generally permissible within the discretion of the
court. See United States v. Crockett, 49 F.3d 1357, 1360-61 (8th Cir.
1995). They should not ordinarily be used without prior notice to
opposing counsel, so that any objections can be determined before the
visual aid is displayed to the jury. See Bower v. O’Hara, 759 F.2d
1117, 1127 (3d Cir. 1985). In the present case, the prosecutor should
have advised defense counsel that she intended to use the chart in her
closing. Nevertheless, the display of the chart did not constitute plain
error, if error at all. The trial judge instructed the jury generally that
it was their recollection of the evidence, and not that of the attorneys,
that controlled (J.A. 798) and further specifically advised the jury,
when it raised a question about the chart, that it was not evidence.
There is no indication that the defendants were unfairly prejudiced by
the use of the chart in the prosecutor’s argument and we do not find
in its use a ground for reversal.
III.
There were several jury irregularities at trial that required the trial
judge’s attention. The appellants contend that these incidents, at least
viewed cumulatively, mandate a new trial. During the trial a female
juror discovered on a window sill in the ladies’ restroom a stack of
papers that contained certain government exhibits and the plea agree-
ment of a witness not called to testify. Apparently the papers had been
disposed of in the trash and inadvertently left in the restroom by the
courthouse custodian. The trial judge questioned the juror and other
female jurors who may have used the restroom and satisfied himself
that no harm had been done (the juror said that the papers "looked like
Greek" to her). No objection was made as to the juror’s continued ser-
vice.
In three other incidents, courtroom spectators were seen talking to
jurors. The trial judge investigated these contacts and determined that
UNITED STATES v. WADDELL 7
they were innocent. Again, no request was made to remove any of the
involved jurors.
The trial judge is granted broad discretion in dealing with possible
jury misconduct. See United States v. Gravely, 840 F.2d 1156, 1159
(4th Cir. 1988). There is no indication here that such discretion was
abused. The judge acted appropriately and the appellants’ argument
is without merit.
IV.
Appellant Waddell assigns error to the trial court’s failure to grant
his motion to suppress evidence of cocaine found in a vehicle driven
by him in Georgia. The trial judge conducted a suppression hearing
and determined that Waddell had consented to the search.
The only witness at the suppression hearing was the Georgia police
officer who had stopped Waddell at 1:45 a.m. on Interstate 95 for
weaving in and out of the emergency lane. After pulling over the car,
the officer asked Waddell to step out and produce his driver’s license.
He asked Waddell if he had been drinking and Waddell replied that
he was very tired since he had been driving a long time. The officer
inquired where he was coming from and Waddell said that he had
taken his girlfriend to Georgia to see her family.
The officer asked Waddell for his registration or proof of insurance
and Waddell responded that those papers were in the vehicle. The
officer then went to the front of the car and asked the female passen-
ger to retrieve the documents and as she was doing so, asked her
where they were coming from. She told him that they had been to
Orlando and Miami and were returning home.
After writing Waddell a warning ticket and telling him that he was
free to go, the officer told Waddell there had been a "problem on the
interstate with people trafficking in drugs, money, [and] weapons"
and asked whether "there was any drugs or anything like that in [the]
vehicle." Waddell hesitated for a few moments and denied that there
was anything like that in the automobile. According to the officer, he
then asked if he could search the car and Waddell agreed. Two other
8 UNITED STATES v. WADDELL
police cars had by that time arrived at the scene, one of which
included a canine officer, and a police drug dog was walked around
the outside of Waddell’s automobile. When the dog alerted to the
presence of drugs by barking, the car was searched and a large
amount of packaged cocaine was eventually found hidden in two
secret compartments.
The law is settled that once a traffic stop is concluded, a continued
encounter between the officer and the motorist is consensual if a rea-
sonable person would have felt free to leave. See United States v.
Weaver, 282 F.3d 302, 309 (4th Cir. 2002) ("Circumstances where the
citizen would feel free to go, but stays and has a dialogue with the
officer, are considered consensual."). The police officer’s version of
the circumstances surrounding the search here are uncontested and the
officer clearly advised Waddell that he was free to leave before ask-
ing him for consent to search.
Voluntary consent is an exception to the Fourth Amendment’s war-
rant requirement, see Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973), and the district court’s finding that Waddell voluntarily gave
verbal consent to the search of his vehicle was not clearly erroneous.
See United States v. Lattimore, 87 F.3d 647, 651-52 (4th Cir. 1996)
(en banc) (upholding factual finding of voluntary consent to search
vehicle based on the "totality of the surrounding circumstances"). The
officer’s pre-consent interaction with Waddell was neither prolonged
nor otherwise indicative of coercion.
V.
The appellants argue that the evidence was insufficient to convict
them of conspiracy. When reviewing the sufficiency of the evidence
on direct appeal, the verdict in a criminal case must be upheld where
there is substantial evidence to support it, viewing the evidence in the
light most favorable to the government. See Glasser v. United States,
315 U.S. 60, 80 (1942). Evidence of conspiracy is usually indirect and
requires no proof of a formal organization. "[I]ndeed frequently, in
contemporary drug conspiracies, [the agreement] contemplates and
results in only 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 . . . ."
UNITED STATES v. WADDELL 9
United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). Once it
has been shown that a conspiracy exists, a defendant’s connection to
that conspiracy may be slight but still sufficient to convict. See United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
Our role in reviewing a conviction for conspiracy requires "that we
not examine evidence in a piecemeal fashion, but consider it in cumu-
lative context." Id. at 863. With these relevant legal principles in
mind, it is clear that there was adequate evidence in this case of a sin-
gle conspiracy joined by each of the appellants. While some of the
evidence against the appellants was given by convicted drug dealers
and government informants, the credibility of a witness is the sole
province of the finder of fact and is not subject to review on appeal.
See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).3
VI.
The appellants also object to the trial court’s sentencing decisions.
Eckles and Lattimore contend that their sentences should not have
been enhanced on the ground that they had possessed firearms during
the commission of the offense of conviction. See U.S. Sentencing
Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(1) (2000). The applica-
tion notes to the sentencing guidelines provide that the dangerous
weapon enhancement for drug offenses is to be applied "if the weapon
was present, unless it is clearly improbable that the weapon was con-
nected with the offense." Id., cmt. n.3.
Eckles and Lattimore both objected to the application of the
enhancement prior to sentencing. No additional evidence was pre-
sented at their sentencing hearings and the trial court relied on the
facts set forth in the presentence investigation report in overruling the
objections.
3
Lattimore also contends that the trial court erred in not granting his
requested instruction as to the jury’s duty to use caution in considering
the testimony of an accomplice or government informant. The court gave
an elaborate instruction in that regard (J.A. 711-13), but Lattimore
wanted an instruction that expressly included the names of those wit-
nesses. However, we find that the trial judge acted well within his discre-
tion in his charge to the jury.
10 UNITED STATES v. WADDELL
The presentence investigation report showed that Eckles frequented
his girlfriend’s home on a regular basis and a police search of that
house in 2000 turned up drugs, drug paraphernalia, a large amount of
cash, and two handguns with ammunition. Similarly, the report
related that in 1998 a police search of a crack house in which Latti-
more was found uncovered drugs, documents relating to Lattimore,
and two firearms. Moreover, in 1995 Lattimore was arrested at
another home at which police seized crack cocaine, currency, a pager,
and two firearms. This evidence was sufficient to support the trial
court’s application of the enhancement under the sentencing guide-
lines.
Contrary to the appellants’ contention, the fact that the government
dismissed prior to trial the separate charges against them for possess-
ing a firearm in furtherance of a drug trafficking offense, 18 U.S.C.A.
§ 924(c)(1) (West 2000), does not affect the application of the sen-
tencing enhancement. See United States v. Kimberlin, 18 F.3d 1156,
1160 (4th Cir. 1994). Moreover, despite the argument of the appel-
lants, the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000),
do not extend to enhancements under the sentencing guidelines where
the enhanced sentence does not exceed the statutory maximum. See
United States v. Myers, 280 F.3d 407, 416 (4th Cir. 2002).
All of the appellants appeal the trial court’s denial of their objec-
tions to the drug amounts used to calculate their guideline ranges.4
Since both powder and crack cocaine were involved in the conspir-
acy, and in accord with the sentencing guidelines, the probation offi-
cer calculated the drug weight for each defendant based on the
equivalency of marihuana for those drugs distributed by the conspira-
tors following the date of the defendant’s involvement. See U.S.S.G.
§ 2D1.1, cmt. n.10 (2000). Based on the information contained in the
presentence investigation report, as well as the evidence presented at
4
Because Lattimore’s offense involved five kilograms or more of pow-
der cocaine and fifty grams or more of cocaine base and because he had
two or more prior convictions for a felony drug offense, he was required
to be sentenced to life imprisonment, regardless of the guideline calcula-
tions. See 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2002);
U.S.S.G. § 5G1.1(a) (2000).
UNITED STATES v. WADDELL 11
trial, the trial judge overruled each defendant’s objection to drug
weight.
In calculating drug amounts, the court may consider any relevant
information, provided that the information has sufficient indicia of
reliability to support its probable accuracy. See United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992). Even hearsay alone
can provide sufficiently reliable evidence of drug quantity. See id. at
1019. The district court’s factual determination of the amount of
drugs attributable to a defendant is reviewed for clear error. See
United States v. McDonald, 61 F.3d 248, 255 (4th Cir. 1995), over-
ruled on other grounds, United States v. Wilson, 205 F.3d 720, 724
n.1 (4th Cir. 2000). The sentencing guidelines do not demand preci-
sion; they recognize that the court often must approximate the amount
of drugs, erring on the side of caution. See United States v. Cook, 76
F.3d 596, 604 (4th Cir. 1996). Thus, we afford the district court broad
discretion in making this estimation. See id. We find that the trial
court here did not err in its calculation.
VII.
We have carefully reviewed the other errors asserted by the appel-
lants and find them without merit. Accordingly, the judgments of the
district court are affirmed.
AFFIRMED