United States v. Haley ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4855
GEORGE HALEY, a/k/a George Scott,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4902
JULIUS WILDER,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-02-98)
Submitted: April 29, 2003
Decided: May 23, 2003
Before WIDENER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. HALEY
COUNSEL
Mary Lou Newberger, Federal Public Defender, Charleston, West
Virginia; Matthew A. Victor, VICTOR, VICTOR & HELGOE,
L.L.P., Charleston, West Virginia, for Appellants. Kasey Warner,
United States Attorney, Travis N. Gery, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In No. 02-4855, Appellant George Haley appeals his jury convic-
tion of knowingly using and carrying a firearm during and in relation
to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(2000).
Haley previously pled guilty to three counts of drug trafficking
charges and proceeded to a jury trial on the firearm count. He
received a total sentence of eighty-one months in prison. In No. 02-
4902, Appellant Julius Wilder appeals his jury convictions of one
count of conspiracy to distribute cocaine, in violation of 18 U.S.C.
§ 846 (2000), and two counts of aiding and abetting the distribution
of cocaine, in violation of 18 U.S.C. § 841(a)(1) (2000). Wilder was
sentenced to sixty-three months in prison. Finding no error in either
appeal, we affirm.
The prosecutions of Haley and Wilder were the result of an investi-
gation conducted by the West Virginia State Police that centered on
controlled purchases of cocaine from Wilder by confidential infor-
mant Carl Graybeal. Graybeal entered into a plea agreement in 2000
in which he pled guilty to federal drug charges and agreed to cooper-
ate with law enforcement investigations. Graybeal had been dealing
with Wilder since 1998 and considered him his primary source of
cocaine. Graybeal purchased quantities of cocaine ranging from one-
UNITED STATES v. HALEY 3
half ounce to four ounces at Wilder’s residence in West Virginia.
Graybeal would telephone Wilder and place his order. Upon Gray-
beal’s arrival at Wilder’s residence, Wilder would make a phone call
and they would wait for the arrival of a third person. When the third
person arrived, they would go to the back of the house, and Wilder
would give cocaine to Graybeal.
On February 25, 2002, Graybeal made a recorded phone call to
Wilder to arrange a purchase, and they agreed that Graybeal would
travel to Wilder’s house to purchase cocaine. Graybeal was searched
and given $600 of recorded money for the buy; he was kept under
constant observation during his travel to Wilder’s. Wilder met Gray-
beal upon his arrival and made a few phone calls; a third person (who
was later identified as Haley) arrived, and he and Wilder went to the
rear of the residence. Upon his return, Wilder delivered a bag of
cocaine to Graybeal, and Graybeal gave him the $600 provided to him
and $50 of his own money. Haley then left the residence, as did Gray-
beal. Graybeal proceeded to another location, where he delivered the
purchased cocaine to West Virginia Police Trooper Ballard.
Between the date of this transaction (February 25, 2002) and
March 28, 2002, Graybeal made a series of phone calls to Wilder
under Officer Ballard’s supervision to arrange another, larger cocaine
purchase. Wilder agreed to sell Graybeal four ounces of cocaine for
$4400 on March 28, 2002. On that day, Graybeal again made a super-
vised purchase of cocaine.
Wilder was waiting for Graybeal on the front porch when he
arrived. There was a red van in the driveway, and as Graybeal
approached the house, an individual came from behind the van and
followed him into the house. He recognized this person as the same
person who came to the February 25 sale. A police officer observing
the transaction corroborated this information.
Graybeal sat on a couch while Wilder and Haley went to the rear
of the house, and Wilder returned after a few minutes and requested
money. Graybeal gave him the $4400, and Wilder returned to the
back of the house. After a few minutes, Haley returned from the rear
of the house and went outside. Wilder returned with a scale and
weighed a bag of cocaine. He asked Graybeal if that was acceptable,
4 UNITED STATES v. HALEY
and he replied that it was. After a few more minutes, Haley returned,
accompanied Wilder to the rear of the house, and then left.
From the outside, a state trooper observed Haley exit the residence,
approach the passenger side of the van, and then return to the house
carrying something in his left hand. A few minutes after entering the
residence a second time, Haley came out again and entered the pas-
senger side of the van, which then began to depart. Other state troop-
ers who were standing by in a marked police car intercepted the van
by pulling into the driveway and blocking it.
As the vehicles were "nose to nose," one of the officers (McCord)
observed Haley in the van. The car’s headlights enabled McCord to
see Haley’s upper torso in the van. As McCord exited the police car,
he saw Haley stiffen and rotate to his left. McCord also noticed
Haley’s shoulder moving up and down "as if he was manipulating,
grabbing, pulling an object near, around maybe his front pocket, his
rear pocket, waistband, that general area." McCord approached the
van, opened the passenger door, and requested that Haley step out. As
Haley stepped from the vehicle, McCord heard a noise, and looking
for its source, saw a semiautomatic pistol lying on the ground. Once
Haley was secured, he picked the gun up and noted there was no clip
in the gun. He later returned to the area where he observed the gun
and found a clip containing at least one bullet.
As these events unfolded, Trooper Oglesby, the other state trooper
in the police car with McCord, also focused his attention on the occu-
pants of the van, both of whom he could see clearly. He observed
Haley making very busy, furtive movements with his arms and lean-
ing and twisting in his seat while the driver made no movements.
Once Haley and the driver were secured, the officers searched the
van and Haley. They found a $100 bill in Haley’s pocket that was one
of the bills police provided to Graybeal for the purchase. They also
found a baggie of marijuana and a baggie of cocaine on Haley. On
the floor of the van between the driver and passenger seats (but closer
to the passenger seat), the officers found $3900. All of those bills
matched the money police had provided to Graybeal for the cocaine
purchase that Graybeal gave to Wilder inside the residence for the
drugs.
UNITED STATES v. HALEY 5
Simultaneously with these events occurring in the driveway, other
state officers entered the Wilder residence without a search warrant.
This search was the subject of a motion to suppress evidence that the
district court granted in part and denied in part. Upon their entry,
Graybeal indicated to the officers that the drug transaction had taken
place and that the drugs were in his shirt pocket. The officer removed
the cocaine from Graybeal’s pocket and secured it as evidence.
Haley’s only claim on appeal is that the evidence was insufficient
to support his jury conviction of using or carrying a firearm during
and in relation to a drug trafficking crime and the district court there-
fore erred in denying his motion for acquittal. A motion for judgment
of acquittal will be denied if, viewing the evidence in the light most
favorable to the government, there was substantial evidence from
which a reasonable jury could find the defendant guilty beyond a rea-
sonable doubt. United States v. MacCloskey, 682 F.2d 468, 473 (4th
Cir. 1982). Construing the testimonies of officers McCord and
Oglesby in the light most favorable to the Government, there was suf-
ficient evidence for a reasonable jury to conclude that Haley know-
ingly carried a gun during the drug delivery at Wilder’s residence.
Based upon the testimonies of those two officers, the jury drew a rea-
sonable inference that Haley knowingly possessed the gun that
McCord heard fall to the ground when Haley exited the van. Thus, we
affirm Haley’s conviction and sentence.
Wilder first challenges the district court’s refusal to sever his trial
from Haley’s. We review the denial of severance for abuse of discre-
tion. United States v. Montgomery, 262 F.3d 233, 244 (4th Cir. 2001).
It is not an abuse of discretion to follow the general rule that defen-
dants who are indicted together should be tried together unless the
moving defendant is able to show prejudice. United States v. Strick-
land, 245 F.3d 368, 384 (4th Cir. 2001) (citation omitted).
Wilder and Haley were named together in three counts of a four-
count indictment for their participation in the same drug transactions.
Therefore, joining them together for trial was appropriate under Fed.
R. Crim. P. 8(b). In addition, denial of relief from joinder was appro-
priate under Fed. R. Crim. P. 14 because Wilder fails to demonstrate
prejudice. Even though Haley pled guilty to three of four counts of
his indictment, he did not testify at the joint trial and there was no
6 UNITED STATES v. HALEY
emphasis placed on his guilty plea at trial. For these reasons, the dis-
trict court did not abuse its discretion in denying severance.
Wilder next contests the denial of his motion to suppress evidence.
In reviewing a district court’s decision on a motion to suppress evi-
dence, this Court reviews the district court’s legal conclusions de
novo and the factual conclusions under a clearly erroneous standard.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992) (citation
omitted). The district court suppressed most of the evidence that offi-
cers obtained during the warrantless search of Wilder’s home. The
court did not suppress, however, cocaine that Graybeal testified that
he purchased from Wilder in the home. In declining to suppress this
evidence, the district court stated:
The court finds [the cocaine] admissible inasmuch as the
cocaine that was received by the confidential informant
inside the Wilder house on March 28, 2002, was in his pos-
session, that is the CI’s possession at the time of the unlaw-
ful entry by the officers. The cocaine that was in the
possession of the CI would under the circumstances inevita-
bly have been received by the authorities with or without the
unlawful entry. And beyond that, at that time, even though
the CI was in the Wilder home, the CI was there as an
invitee of the defendant Wilder who had surrendered posses-
sion of the cocaine to the CI and as a consequence of which
the defendant Wilder no longer had any privacy interest to
be preserved in that cocaine.
(JA 665-67). Graybeal was working as a confidential informant for
the Government when he received cocaine from Wilder and would
have turned the cocaine over to the police whether Wilder’s home
was searched or not—just as he had done after the previous controlled
buy. Therefore, the district court properly denied suppression of this
evidence for two reasons. First, a preponderance of the evidence
establishes that the cocaine "inevitably would have been discovered
by lawful means." See Nix v. Williams, 467 U.S. 431, 444 (1984).
Second, Wilder had already given the cocaine to Graybeal, so he no
longer had any privacy interest in it. See Rakas v. Illinois, 439 U.S.
128, 138-40 (1978).
UNITED STATES v. HALEY 7
Wilder next alleges that Count One of his indictment that charged
him with conspiracy was "over broad" and deprived him of his consti-
tutional right to testify in his own defense. This Court reviews such
challenges to an indictment that were asserted before trial de novo.
United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997).
Wilder asserts that Count One of his indictment unduly prejudiced
him because it "‘lump[ed] together’ . . . two or three distinct conspira-
cies." Whether the Government has proven one single conspiracy or
multiple smaller conspiracies is a question of fact that is left to the
jury. See United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001),
cert. denied, 535 U.S. 991 (2002). If the conspiracy "had the same
objective, it had the same goal, the same nature, the same geographic
spread, the same results, and the same product," it can be a single
conspiracy if it involved multiple transactions. See United States v.
Crockett, 813 F.2d 1310, 1317 (4th Cir. 1987).
Count One of Wilder’s indictment stated:
From in or about January, 1997, to on or about March 28,
2002, at or near Charleston, Kanawha County, West Vir-
ginia, within the Southern District of West Virginia and
elsewhere, defendants JULIUS WILDER, GEORGE
HALEY, also known as "George Scott," and other persons
whose identities are both known and unknown to the Grand
Jury, knowingly conspired to commit offenses in violation
of 21 U.S.C. § 841(a)(1), that it, knowingly and intention-
ally to distribute cocaine, also known as "coke," a Schedule
II controlled substance.
(JA Vol. I at 24). Evidence presented at trial fully supported this
count of the indictment. Moreover, Count One of the indictment did
not have any effect on Wilder’s capacity to testify on his own behalf
if he chose to do so.
For these reasons, we affirm Wilder’s jury convictions and sen-
tence. We dispense with oral argument because the facts and legal
contentions of the parties are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED