United States v. Gordon ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4718
DENNIS RAY GORDON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-8-F)
Argued: April 8, 1998
Decided: May 18, 1998
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Paul K. Sun, Jr., SMITH, HELMS, MULLISS &
MOORE, L.L.P., Raleigh, North Carolina, for Appellant. Anne Mar-
garet Hayes, Assistant United States Attorney, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted Dennis Ray Gordon of conspiracy to possess with
the intent to distribute crack cocaine in violation of 21 U.S.C.A. § 846(West 1981 & Supp. 1997), possession with intent to distribute crack
cocaine in violation of 21 U.S.C.A. § 841(a)(1) (West 1981), and
using or carrying a firearm during a drug trafficking crime in viola-
tion of 18 U.S.C.A. § 924(c)(1) (West 1976 & Supp. 1998). The dis-
trict court sentenced Gordon to 227 months imprisonment -- 167
months on the drug charges and 60 months, to be served consecu-
tively, on the firearms charge. The court also ordered Gordon to pay
a fine of $10,675, "due immediately." Gordon appeals, asserting:
(1) the government's failure to give him notice of its intent to intro-
duce evidence of his prior bad acts violated Rule 404(b) of the Fed-
eral Rules of Evidence and entitles him to a new trial and (2) the
district court plainly erred in imposing the fine. Finding no reversible
error, we affirm.
I.
On August 18, 1995, the Sheriff's Drug Task Force of Edgecombe
County, North Carolina arrested Gordon. According to the testimony
of the task force officers, they arranged for a known drug dealer and
informant, Kenneth Earl McKenzie, to buy two ounces of crack
cocaine from Gordon. McKenzie testified, and the task force officers
corroborated, that McKenzie telephoned Gordon from the police sta-
tion at noon on August 18, 1995, and told Gordon that he wished to
purchase two ounces of crack cocaine. The officers then set up three
surveillance points around Tom Styth Park, where Gordon and Mc-
Kenzie agreed to meet. One officer's vehicle, a black Ford Bronco,
was parked near McKenzie's vehicle.
After waiting twenty minutes for Gordon to arrive, McKenzie
paged Gordon from a nearby pay phone. A woman answered and told
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McKenzie that Gordon was on his way. As McKenzie was returning
to his car, Gordon drove past McKenzie, with his co-defendant, Clive
Alexander Grant, in the car. Momentarily, Gordon stopped short; he
then noted the Ford Bronco, and drove through the park, dropping
Grant at a nearby convenience store. A minute or two later, Gordon
came back and pulled up to McKenzie, who was still on foot, and
motioned to McKenzie to follow Grant into the convenience store.
McKenzie then signaled to the officers, identifying Gordon as the per-
son with whom he had contacted to buy the two ounces of crack.
One task force officer, Curtis Pittman, testified that after receiving
the signal from McKenzie, he and another officer approached Gordon
and identified themselves. Gordon continued to walk away, at which
point the officers apprehended him. Observing a bulge on Gordon's
side, the officers asked what Gordon was carrying, to which he
responded "a pea shooter." The officers then removed from his waist-
band a nine millimeter pistol and also confiscated a pager, a pocket
knife, and $21.
Two other officers approached Grant who was using a nearby pay
phone. The officers told Grant to be still and started to pat him down
for weapons. Grant hung up the telephone and broke into a run. Wres-
tling Grant to the ground, the officers found a fully loaded Ruger nine
millimeter pistol in his waistband, two ounces of crack cocaine in his
left front pocket, and two pagers.
In addition to describing the drug buy that took place on August
18, 1995, McKenzie also testified as to his prior relationship with
Gordon. McKenzie stated that he had first met Gordon in 1993
through a mutual friend named "Dimples," when McKenzie arranged
through Dimples to buy a half-ounce of crack from Gordon. Mc-
Kenzie related that Gordon and Dimples both facilitated the purchase,
retrieving the cocaine from a secret spot in Dimples' house and
weighing it on a scale. McKenzie maintained that subsequently he
had bought crack from Gordon "time and time again."
Based solely on the 1995 attempted sale of crack to McKenzie at
Tom Styth Park, the government charged Gordon and Grant with a
one-day conspiracy to possess with the intent to distribute crack
cocaine, possession with intent to distribute crack cocaine, and pos-
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session of a firearm during the commission of a narcotics offense.
Following Gordon's conviction on all counts, the district court sen-
tenced Gordon to 167 months on the conspiracy and drug possession
charges, and 60 months on the weapons charge to run consecutively.
Because Gordon is a Jamaican citizen, the district court also ordered
his deportation following incarceration. Finally, pursuant to 18
U.S.C.A. § 3572 (West Supp. 1998) and § 5E1.2 of the United States
Sentencing Guidelines, the district court imposed a $10,675 fine on
Gordon.
II.
Gordon argues that retrial is warranted because the government
failed to provide him with timely notice of its intention to introduce
bad act evidence -- namely McKenzie's testimony about his prior
drug deals with Gordon -- in violation of Rule 404(b) of the Federal
Rules of Evidence. At trial the district court ruled that Rule 404(b) did
not apply because this evidence was "intrinsic" to the crimes charged.
We review a district court's evidentiary rulings, including those
based on Rule 404(b), for abuse of discretion. See United States v.
Mark, 943 F.2d 444, 447 (4th Cir. 1991). Evidence of other bad acts
is admissible under Rule 404(b) if it is "probative of a material issue
other than character." United States v. Madden, 38 F.3d 747, 753 (4th
Cir. 1994) (quoting Huddleston v. United States , 485 U.S. 681, 686
(1988)). Such evidence is properly admitted when it is "(1) relevant
to an issue other than character, (2) necessary, and (3) reliable."
Mark, 943 F.2d at 447 (internal citations and quotations omitted).
Rule 404(b) applies, however, only to evidence "extrinsic" to the
crimes alleged in the indictment. When evidence is"intrinsic," mean-
ing the evidence is so "inextricably intertwined" with the charged
crimes that it comprises "a single criminal episode," or the evidence
is a "necessary preliminar[y]" to the charged offenses, Rule 404(b)
does not apply. United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996)
(internal citations and quotations omitted). In Gordon's case, we need
not decide whether evidence of McKenzie's prior drug deals with
Gordon is "intrinsic" or "extrinsic" to the charged crimes. Even
assuming that this evidence is "extrinsic," as Gordon urges, and thus
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that Rule 404(b) applies, the error in admitting the evidence would be
harmless.
Because Gordon requested that the government "provide reason-
able notice in advance of trial . . . of the general nature of any such
evidence it intends to introduce at trial," Fed. R. Evid. 404(b), and the
government failed to give such notice with respect to Gordon and Mc-
Kenzie's prior drug deals, Rule 404(b), if applicable, would mandate
that this evidence be excluded at trial. See, e.g., United States v.
Lopez-Gutierrez, 83 F.3d 1235, 1241 (10th Cir. 1996); see also Fed.
R. Evid. 404(b) advisory committee's notes ("[b]ecause the notice
requirement serves as condition precedent to admissibility of 404(b)
evidence, the offered evidence is inadmissible if . . . the notice
requirement has not been met").
We will not order a new trial based on a violation of Rule 404(b)'s
notice provision, however, if the error is harmless. See United States
v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997). If an appellate court can
say "with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgement was
not substantially swayed by the error," it must affirm. United States
v. Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980) (quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946)).
Here, any error was indeed harmless. McKenzie's testimony about
his prior drug dealing with Gordon was brief and overwhelmed by the
evidence against Gordon on the crimes charged, i.e. conspiracy to
possess crack, possession of crack with intent to distribute, and pos-
session of a firearm during a drug offense. McKenzie testified that he
placed a call to Gordon to purchase two ounces of crack, arranged
with Gordon that the exchange would take place in Tom Styth Park,
met Gordon in the park, was instructed by Gordon to go into the con-
venience store where Grant was waiting with the two ounces of crack,
and signaled to the officers that Gordon was the person from whom
he ordered the crack. In addition, the officers testified to apprehend-
ing Gordon and Grant, both of whom were armed, with Grant in pos-
session of two ounces of crack. The officers further related that while
transporting Gordon to the magistrate's office, Gordon initially
denied knowing Grant at all, and then admitted that he had been trav-
eling with another individual whom both the officers identified as
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Grant. Considering the overwhelming evidence demonstrating Gor-
don's guilt and the minor, arguably improper evidence, we can only
conclude "with fair assurance" that the jury could not have been "sub-
stantially swayed" by the assertedly improper evidence. Nyman, 649
F.2d at 211-12.
We also note that Gordon's claims of unfair surprise resulting from
the government's failure to provide notice ring hollow. Gordon admit-
ted at oral argument that at the time of the trial, he knew McKenzie
would be testifying against him. Gordon also conceded that when Mc-
Kenzie first testified, Gordon could have requested a continuance to
give him the opportunity to investigate possible exculpatory evidence
regarding this testimony. Gordon, however, did nothing of the sort.
We are thus unpersuaded that Gordon suffered any unfair surprise by
McKenzie's testimony.
III.
Gordon also contends that in view of his financial inability to pay
a $10,765 fine "immediately," the district court erred in imposing this
fine.
Because Gordon failed to object to the fine at sentencing, we exam-
ine his claim for plain error. United States v. Castner, 50 F.3d 1267,
1277 (4th Cir. 1995) (challenge to fine reviewed for plain error). We
will not upset the district court's imposition of the fine, therefore,
unless Gordon proves that it (1) is error, (2) which is plain,
(3) affects his substantial rights, and (4) seriously affects the fair-
ness, integrity or public reputation of judicial proceedings. Id. at
1277-78. There was no error, plain or otherwise, here.
The statute governing the district court's imposition of the fine, 18
U.S.C.A. § 3572(a), provides in relevant part:
In determining whether to impose a fine, and the amount,
time for payment, and method of payment of a fine, the [dis-
trict] court shall consider . . .
(1) the defendant's income, earning capacity, and financial
resources . . . .
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See also U.S.S.G. § 5E1.2(d)(2). In imposing a fine, a district court
must either make explicit factual findings, or adopt the presentence
report if it "contains adequate factual findings to allow effective
appellate review of the fine." Castner, 50 F.3d at 1277.
Section 5E1.2 of the United States Sentencing Guidelines further
states that "[t]he court shall impose a fine in all cases, except where
the defendant establishes that he is unable to pay and is not likely to
become able to pay any fine." U.S.S.G. § 5E1.2(a) (emphasis added).
The defendant accordingly "bears the burden of demonstrating his
present and future inability to pay." United States v. Hyppolite, 65
F.3d 1151, 1159 (4th Cir. 1995).
In this case, the district court adopted the findings in the presen-
tence report, downwardly departed from the minimum allowable fine
of $17,500 under § 5E1.2(c)(3) of the Sentencing Guidelines, and
imposed on Gordon a $10,567 fine "due immediately." The court
waived any interest that would accrue if Gordon failed to pay the fine
immediately, finding that "the defendant [was] without the ability to
. . . pay interest."
The presentence report contains adequate factual findings to sup-
port this sentence. The report notes that, even though Gordon at the
time of sentencing was unemployed and had no current income, his
personal assets amounted to $5,280. In addition, the report states that
Gordon possesses some plumbing and carpentry skills and that Gor-
don could earn over $7,500 in a Bureau of Prison's employment proj-
ect. Thus, when combining Gordon's present assets and projected
earnings while in prison, the report indicates that Gordon would be
able to meet his fine obligation even though he could not pay it imme-
diately. The district court, recognizing that Gordon would have to pay
the fine over time, waived any interest otherwise payable under the
Guidelines. Gordon failed to introduce evidence to counter that con-
tained in the presentence report and so has not demonstrated, as he is
required to do under § 5E1.2(a) of the Sentencing Guidelines, that he
cannot pay the fine in this manner. See U.S.S.G. § 5E1.2(a). Accord-
ingly, the district court did not err in imposing the fine.
Gordon's claim that the district court plainly erred because the
report based Gordon's ability to pay the fine in part on his earning
7
capacity while on supervised release, which would not be available
to him because he faces immediate deportation after incarceration, is
meritless. Although Gordon's ability to pay the fine upon release may
be compromised due to deportation, the report makes clear that
between his personal assets at the time of his incarceration and his
earning capacity while in prison, which combined amount to over
$12,000, he could easily pay the $10,675 fine before his release. Gor-
don's impending deportation, therefore, does not affect the soundness
of the district court's imposition of the fine.
IV.
For the foregoing reasons, Gordon's convictions and sentences are
AFFIRMED.
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