United States v. Broadnax ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4330
TYRONE OTTO BROADNAX,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4349
JACOB WAYNE LONG,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-220)
Submitted: October 31, 2001
Decided: November 30, 2001
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
M. Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellants. Walter C. Hol-
2 UNITED STATES v. BROADNAX
ton, Jr., United States Attorney, Steven H. Levin, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Tyrone Otto Broadnax and Jacob Wayne Long were indicted for
conspiracy to distribute in excess of fifty grams of cocaine base
(crack) and in excess of 500 grams of cocaine powder, in violation of
21 U.S.C. § 846 (1994). The district court granted Long’s motion to
dismiss the indictment insofar as it alleged that he had conspired to
distribute cocaine base. Long was convicted of conspiracy to distrib-
ute cocaine powder and sentenced to 127 months in prison, to be fol-
lowed by five years’ supervised release. Broadnax was convicted of
conspiracy to distribute both crack and cocaine powder. He was sen-
tenced to 292 months in prison, to be followed by five years’ super-
vised release. Long and Broadnax now appeal their convictions and
sentences. We affirm.
I
Testimony at trial disclosed that Long supplied cocaine powder to
Broadnax. In turn, Broadnax converted the powder to crack. Broad-
nax sold the drug himself or through agents at a property on Fox Road
in Greensboro.
Mike Kernodle testified that he facilitated the purchase by Long
and Ellis Billingsley of $25,000 worth of cocaine powder from an
unidentified third party in January or February 1997. Andrew Lemons
testified that he began purchasing crack from a "runner" at the Fox
Road property in January 1998. Lemons identified at least three of the
runners. Eventually, he and Broadnax became friends. Beginning in
UNITED STATES v. BROADNAX 3
March or April of 1998 and continuing until early 1999, Lemons pur-
chased crack at the Fox Road property as often as seven times a week.
Lemons began selling crack as a runner for Broadnax in July 1998.
Lemons testified that he had seen Long at the Fox Road property.
Additionally, Lemons regularly drove Broadnax to obtain powder
cocaine from Long. Generally, they drove to Long’s residence on
Garrett Road. Broadnax routinely left between $3000 and $4000 in a
pickup truck at the property. Subsequently, Broadnax received a page,
then drove to a spot beside a road where he would pick up four
ounces of cocaine. Lemons testified that between September 1998 and
May 1999, Broadnax obtained cocaine from Long in this manner
twice a week.
Several of Broadnax’s customers testified that they purchased
crack cocaine from Broadnax and his agents. Tracy Pruitt testified
that over the course of a year to a year and a half, she went to the Fox
Road property two to three times a week to buy crack. Ordinarily she
bought one-sixteenth of an ounce for between $80 and $100. Only
once did she buy crack directly from Broadnax; the other times, she
bought from his runners. Pruitt testified that she had seen Broadnax
cook cocaine powder into crack, had seen a kilo or more of cocaine
powder at the Fox Road property, and had seen Long on the property
once. She once sold crack for Broadnax, keeping $40 for herself and
giving him the remaining $40 from the sale.
There was testimony about two controlled purchases of crack from
Broadnax. Berri Burris bought 2.4 grams of crack from Broadnax at
the request of Detective Phil Smith. Miyoko Watkins drove with
undercover officer Charlotte Rogers to the Fox Road property, where
Watkins obtained $40 worth of crack from Broadnax.
The jury returned guilty verdicts. Long was sentenced to 127
months in prison. Broadnax stipulated at sentencing that he was
responsible for 1.49 kilograms of crack. He received a 292-month
sentence. This appeal followed.
II
Appellants first contend that the district court improperly bolstered
the credibility of Lemons and Clark and admonished Tracy Pruitt to
4 UNITED STATES v. BROADNAX
testify truthfully, with the result that she skewed her testimony in
favor of the prosecution. The district court’s actions, Appellants con-
tend, deprived them of a fair trial.
Here, the district court simply asked witness Marvin Clark—
outside the jury’s presence—whether the Government had promised
that it might try to help him if the Government thought he was telling
the truth. In a similar vein, Lemons was asked on re-direct whether
he had been promised anything in return for his testimony. He replied
that he had not. On re-cross, he was asked whether he had "been
offered, not promised, but offered" anything. The district court then
inquired of Lemons whether anyone had promised that his time might
be reduced in exchange for his testimony. Finally, after Tracy Pruitt
gave vague testimony or said that she was not sure of the answers to
many questions, the district court excused the jury. The court then
admonished her to respond truthfully to the questions posed to her.
The jury was brought back in, and Pruitt’s testimony became more
specific. There were no significant discrepancies between her testi-
mony prior to the warning and that after the judge spoke to her.
Contrary to Appellants’ contention, the district court’s actions were
not an abuse of discretion. The court fulfilled its obligation to reason-
ably control the interrogation of witnesses and the presentation of evi-
dence so as to promote the ascertainment of truth. Fed. R. Evid.
611(a), 614. It is inconceivable that either Long or Broadnax was
prejudiced by the court’s speaking to the three witnesses. Further, any
prejudice was cured by the instruction that the jury was to determine
the facts based solely on the evidence and that the jury should not
assume from the court’s comments and questions during trial that the
court had an opinion about the case. See United States v. Villarini,
238 F.2d 530, 536-37 (4th Cir. 2001).
III
Appellants argue that the district court erred in admitting the testi-
mony of Kernodle and Clark. Among other things, their testimony
completed the story of the criminal activity on trial. See United States
v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (internal quotation
marks omitted). Further, it fulfilled all the criteria for the admission
of evidence under Fed. R. Evid. 404(b), as set forth in United States
UNITED STATES v. BROADNAX 5
v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). Admission of the testi-
mony was not an abuse of discretion.
IV
Long and Broadnax claim that their sentences violate the rule of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi held that
"[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt." Id. at
490. Based on Apprendi, we recently held that "drug quantities must
be treated as elements of aggravated drug trafficking offenses under
21 U.S.C.A. § 841 (West 1999 & Supp. 2001)." United States v.
Promise, 255 F.3d 150, 152 (4th Cir. 2001) (en banc). Further, failure
to charge a specific threshold drug quantity and to submit the quantity
issue to the jury constitutes plain error if the defendant’s sentence
exceeds the applicable statutory maximum. Id. at 156-57.
Here, Long was charged with conspiracy to distribute a threshold
amount (in excess of 500 grams) of cocaine powder.* However, in
violation of Apprendi, it was the judge—not the jury—who deter-
mined how much cocaine Long was accountable for. Nonetheless,
because Long’s sentence was within the statutory maximum of twenty
years set forth at 21 U.S.C.A. § 841(b)(1)(C), see Promise, 255 F.3d
at 156-57, we affirm the sentence.
Broadnax, who did not have a previous felony drug conviction, was
charged with distributing specific amounts of crack and powder
cocaine. The judge found Broadnax responsible for 1.49 kilograms of
crack. Ordinarily, this plain Apprendi violation would require that we
vacate the sentence and remand the matter for resentencing within the
twenty-year statutory maximum. However, Broadnax stipulated that
he was responsible for 1.49 kilograms of crack. Given his stipulation
and evidence presented that substantiated his accountability for at
least this amount of crack, Broadnax cannot show that the 292-month
sentence, which is within the sentencing range set forth at 21
U.S.C.A. § 841(b)(1)(A)(iii), "was longer than that which would oth-
*That portion of the indictment charging Long with conspiracy to dis-
tribute crack was dismissed.
6 UNITED STATES v. BROADNAX
erwise have been authorized by the jury verdict." See United States
v. Stewart, 256 F.3d 231, 252 (4th Cir. 2001). As such, he cannot
show that the error in this case affected his substantial rights, and his
sentence is affirmed.
V
We therefore affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED