United States v. Grannum ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4358
PEARLIN M. GRANNUM,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4359
DERRICK STOKES,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-96-258-DKC)
Submitted: July 14, 1998
Decided: August 4, 1998
Before WILLIAMS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Chirag V. Patel, Baltimore, Maryland; Arcangelo M. Tuminelli, Balti-
more, Maryland, for Appellants. Lynne A. Battaglia, United States
Attorney, Stuart A. Berman, Assistant United States Attorney, Bar-
bara S. Skalla, Assistant United States Attorney, Greenbelt, Mary-
land, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury convicted Derrick Stokes of various drug, drug-related, and
money laundering offenses. The jury convicted Pearlin Marie Gran-
num of various money laundering offenses. On appeal, Stokes alleges
that the district court erred: (1) by enhancing his base offense level
for possession of a firearm pursuant to USSG § 2D1.1;1 (2) in its cal-
culation of the amount of drugs attributable to him; (3) by admitting
a handgun into evidence; (4) by denying his motions for a continu-
ance and withdrawal of counsel; and (5) by refusing to force the Gov-
ernment to grant immunity to one of his witnesses. 2 Grannum alleges
that the district court erred by denying her motion for a severance
from Stokes's case and her request for a bench trial. Stokes has filed
motions requesting permission to submit a pro se supplemental brief
and an extension of time in which to file a reply brief. Although we
grant Stokes's motions, we find no reversible error and affirm.
The evidence presented at trial showed that Stokes distributed her-
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1 U.S. Sentencing Guidelines Manual (1995).
2 Stokes's second, third, and fourth allegations are raised pursuant to
Anders v. California, 386 U.S. 738 (1967). Stokes's fifth claim is raised
in his pro se supplemental brief.
2
oin. He and Grannum laundered the proceeds from his drug activity
through their personal bank account and through Grannum's business
account.3 Stokes's activities were discovered after one of his custom-
ers ("Saunders") began selling heroin to an undercover DEA agent.
During a search of the boutique and Appellants' apartment, agents
seized a loaded handgun, which was found in a box in the office of
the boutique wrapped in Appellants' daughter's receiving blanket.
Agents also found a holster for the weapon under Appellants' bed.
Stokes alleges that the evidence was insufficient to support the district
court's enhancement for possession of a firearm. We disagree. The
Government need only prove that the enhancement is applicable by
a preponderance of the evidence, and the district court's factual deter-
minations must be upheld unless they are clearly erroneous. See
United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.
1989). In addition, "[t]he adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was con-
nected with the offense." USSG § 2D1.1, comment. (n.3).
In the present case, we find that the record supports the district
court's determination that Stokes' drug sentence should be enhanced.
Stokes and Grannum were the only employees of the boutique and,
therefore, the only ones with access to the office where the weapon
was discovered. In addition, Grannum testified that when she con-
fronted Stokes about the holster under their bed, he suggested that he
kept a firearm somewhere other than in their apartment. Finally,
Saunders testified that heroin dealers, including himself, usually car-
ried weapons because of the large amounts of cash involved. Accord-
ingly, we find that the district court properly found that it was not
clearly improbable that the firearm was available for Stokes's use in
connection with his drug trade if needed.
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3 Stokes and Grannum lived together, and Grannum owned a small
boutique. Investigators discovered, however, that the boutique was
merely a front for laundering drug proceeds. It was open for irregular
hours, generated few sales, and had virtually no inventory; yet Stokes,
who had no visible means of support, and Grannum deposited large
amounts of cash into the business's bank account.
3
We review the district court's factual determination concerning the
amount of drugs attributable to Stokes for clear error and find none
here. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert.
denied, 117 S. Ct. 358 (1996). As a member of a conspiracy, Stokes
was accountable for all of the drugs reasonably foreseeable to him.
See id.; United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993). The
record shows that Stokes provided nearly pure heroin to Saunders on
numerous occasions. Saunders also testified that Stokes told him he
could "cut," or dilute, the heroin three to four times before selling it
in street-level quantities. Since it was clearly foreseeable to Stokes
that the heroin would be diluted, the district court correctly concluded
that he was liable for the total amount of diluted drugs sold. See
United States v. Rogers, 91 F.3d 1388, 1394 (10th Cir. 1996), cert.
denied, 117 S. Ct. 1000 (1997) . Stokes's conclusory allegations con-
cerning the proper amount of drugs attributable to him fail to dispute
these findings. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990) (defendant bears the burden of showing that the information in
the presentence report is inaccurate; mere objections are insufficient).
Decisions regarding the admission or exclusion of evidence are
committed to the sound discretion of the district court and will not be
reversed absent an abuse of that discretion, and we find no such abuse
here. See United States v. Van Metre, 1998 WL 384829, at *8 (4th
Cir. July 10, 1998); United States v. Hassan El , 5 F.3d 726, 731 (4th
Cir. 1993). Stokes does not argue that the firearm was per se inadmis-
sible. Rather, he alleges that its probative value was substantially out-
weighed by the danger of unfair prejudice and, therefore, it was
inadmissible under Rule 403 of the Federal Rules of Evidence. How-
ever, Stokes does not state exactly how he was unfairly prejudiced by
the admission of this evidence, and our review of the record does not
disclose any basis for this claim.
Four days before trial, Stokes requested that court-appointed coun-
sel be allowed to withdraw, retained counsel substituted, and a contin-
uance granted so that retained counsel, who was not present in the
courtroom, could prepare for the case. We review the district court's
denial of Stokes's motions for an abuse of discretion and find none
here. See United States v. Johnson, 114 F.3d 435, 442 (4th Cir.), cert.
denied, 118 S. Ct. 257 (1997) . The record shows that the trial had
already been postponed twice and that Stokes had been expressing an
4
interest in retaining counsel for over six months. Stokes told the court
that he did not get along with appointed counsel and did not feel that
counsel was interested in representing him to the best of his ability.
The court advised Stokes that he could have any attorney he wanted,
but that it would not grant a continuance.4 Applying the three factor
test set forth in Johnson, we find that the district court conducted a
detailed inquiry into the reasons behind Stokes's motions and prop-
erly found that the motions were untimely under the circumstances
and that the alleged attorney-client conflict was not so great as to pre-
vent an adequate defense. See id. Moreover, Stokes fails to show any
prejudice from the denial of his motions.
Stokes's final allegation is that the district court erred by not forc-
ing the Government to grant use immunity to a witness or granting
such immunity sua sponte. We find this argument to be without merit.
It is well-settled that the Government has exclusive statutory authority
to grant use immunity to a potential witness. See 18 U.S.C. § 6003(1994). The district court has no authority to confer immunity sua
sponte. See United States v. Karas, 624 F.2d 500, 505 (4th Cir. 1980);
United States v. Klauber, 611 F.2d 512, 517 (4th Cir. 1979). The
court should only require the Government to confer immunity when
the defendant makes a decisive showing of prosecutorial misconduct
or overreaching and the evidence supplied would be clearly material,
exculpatory, and unavailable from any other source. See United States
v. Tindle, 808 F.2d 319, 326 (4th Cir. 1986).
We find that Stokes failed to satisfy this burden. Despite his con-
clusory allegation that the witness's testimony might have impugned
Saunders's testimony, Stokes fails to show that the proposed testi-
mony was clearly material, exculpatory, or unavailable from any
other source. In addition, we find no prosecutorial misconduct. The
Government informed the district court that while it did not plan to
charge the witness with any other federal crimes, he still faced the
very real possibility of prosecution by authorities in Virginia, Mary-
land, and the District of Columbia. As a result, we find that the dis-
trict court properly found that the witness was entitled to invoke his
Fifth Amendment right against self-incrimination.
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4 Retained counsel never appeared at trial, and appointed counsel ably
represented Stokes.
5
We review the district court's decision not to sever Grannum's case
from Stokes's for a clear abuse of discretion and find none.5 See
United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992). The
general rule is that defendants who are indicted together are tried
together. See United States v. Williams, 10 F.3d 1070, 1079 (4th Cir.
1993). We find that Grannum fails to show why she is entitled to an
exception from this rule. Grannum bears the burden of making a par-
ticularized showing of prejudice, and we find that she has not done
so. See id. We find that Grannum's assertion that she was prejudiced
by evidence of Stokes's drug dealing to be without merit because this
evidence would have been presented in a separate trial to show the
source of the proceeds she was accused of laundering.
We review the district court's decision denying Grannum's request
for a bench trial for abuse of discretion, and we find none. See Van
Metre, 1998 WL 384829, at *13. It is well-settled that a defendant
does not have a constitutional right to a non-jury trial. See id. (citing
Singer v. United States, 380 U.S. 24 (1965)). In the present case,
Grannum did not make her request until the day of trial. Moreover,
while the Government consented to her request, Stokes vigorously
opposed the concept of a bifurcated trial. Grannum's primary reason
for requesting a bench trial was her fear that she would be prejudiced
by evidence of Stokes's drug dealing. Since the district court properly
advised the jury to separate the conduct of the two defendants, we
find that the greatest prejudice suffered by Grannum was that she
received what the Constitution guarantees: a trial by an impartial jury.
We have examined the entire record in this case in accordance with
the requirements of Anders and find, as to Stokes, no meritorious
issues for appeal. The court requires that Stokes's counsel inform his
client, in writing, of his right to petition the Supreme Court of the
United States for further review. If Stokes requests that a petition be
filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client.
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5 Grannum joined Stokes's motion to sever counts four days before
trial. However, in arguing her position on the first day of trial, Grannum
modified her motion to request that the trials be severed.
6
We therefore affirm Grannum's and Stokes's convictions and sen-
tences. Stokes's motions for permission to file a pro se supplemental
brief and for an extension of time in which to file a reply brief are
granted. 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.
AFFIRMED
7