United States v. Laguerre ( 2005 )

Rehearing granted, April 20, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4100
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PRINCIBE LAGUERRE, a/k/a Big Man,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-02-30098)
Argued: October 29, 2004 Decided: May 12, 2005
Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Aaron Lee Cook, Harrisonburg, Virginia, for Appellant.
Timothy J. Heaphy, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
On October 30, 2003, a jury convicted Appellant Princibe
Laguerre (“Laguerre”), a/k/a “Big Man,” of conspiracy to distribute
and possession with intent to distribute over fifty grams of
cocaine base and five kilograms or more of cocaine hydrochloride in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). Laguerre
challenges his conviction and his subsequent sentence. We agree
that the district court erred in admitting certain exhibits
concerning telephone transactions without the proper notice
required by the Federal Rules of Evidence; but we find the error
harmless and thus affirm his conviction. However, consistent with
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), our recently
published opinion giving guidance on the application of United
States v. Booker, 125 S. Ct. 738 (2005), we find plain error in
sentencing, exercise our discretion to notice the error, vacate the
sentence, and remand to the district court for resentencing.
I.
Laguerre first came to the attention of the Virginia State
Police after they apprehended Barbara Ferguson (“Ferguson”) for
drug trafficking when she sold drugs to undercover agents.
Ferguson became a confidential informant (“CI”) and engaged in four
transactions with Laguerre that led to his arrest. Ferguson
facilitated the transactions by calling Laguerre and other dealers
2
on their cell phones from her cell phone. These conversations were
recorded.
During Laguerre’s three-day trial, several alleged co-
conspirators, as well Laguerre himself, testified. These co-
conspirators and Laguerre used cell phones to communicate with one
another. The Government also presented testimony from Nate Adams
(“Adams”), a Drug Enforcement Agency (“DEA”) Intelligence Analyst,
who testified that he gathered subscriber information and toll
records regarding certain cell phone numbers provided to him by the
DEA Special Agent involved in the investigation.1 Ferguson had
provided some of the cell phone numbers for the investigation.
From the toll records of the original cell phone numbers,
Adams obtained toll records and subscriber information for numbers
that frequently contacted the original numbers. He did this by
sending administrative subpoenas out to Sprint, the service
provider for these numbers.2 Adams testified that he then took the
information from the administrative subpoenas and entered it into
a database of phone numbers. Adams then began to testify
concerning two summary charts that he had prepared using the toll
1
Toll records consist of information on every phone number
called from a particular cell phone number. Subscriber information
consists of the name and address of the subscriber from the record
on file with the service provider.
2
Adams found out that Sprint was the service provider for the
numbers through a database called the National Subpoena Registry.
3
records. One chart showed the volume of calls between Laguerre and
other alleged co-conspirators and used photos of each person with
Laguerre’s photo enlarged and outlined in red in the center of the
other photographs. J.A. 133, 145-A. The other chart showed the
volume of calls between Laguerre and Ferguson on the dates of the
four charged transactions. Id. at 139, 145-B.
During Adams’s testimony, Laguerre’s counsel made several
objections to the use of toll record information from the
administrative subpoenas and to the summary charts. The court,
however, overruled each objection and allowed the admission of both
charts. Laguerre thereafter moved for judgment of acquittal by
challenging the admission of the summary charts but the judge
denied this motion.
On January 21, 2004, the judge sentenced him, pursuant to the
U.S. Sentencing Guidelines, to 360 months of incarceration.
Laguerre filed this timely notice of appeal on January 30, 2004.
II.
We review the admission of evidence for abuse of discretion.
United States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002).
However, evidentiary rulings are subject to further harmless error
review. Id. at 313-14. Under such review, a ruling will be found
harmless if we are able to conclude, “‘with fair assurance, after
pondering all that happened without stripping the erroneous action
4
from the whole, that the judgment was not substantially swayed by
the error.’” Id. at 314 (quoting United States v. Brooks, 111 F.3d
365, 371 (4th Cir. 1997)).
The interaction of Federal Rules of Evidence 803(6), 902(11)
and 1006 is at issue in this case. Here, the Government sought to
take toll records excepted from the hearsay rule under Rule 803(6)
and authenticated under Rule 902(11) and summarize them into a
chart pursuant to Rule 1006. Laguerre argues that the charts were
built on inadmissible hearsay and unauthenticated evidence, that
the Government failed to give the notice required by Rule 902(11),
and that the Government failed to provide an opportunity to inspect
the underlying documentation for the charts pursuant to Rule 1006.
A.
Rule 803(6) is an exception to the hearsay rule for business
records that permits their introduction as long as they satisfy
certain requirements. See Fed. R. Evid. 803(6). Rule 803(6)
references Rule 902(11), which permits authentication of these
records by certification of the custodian or other qualified
person, and thus eliminates the need for foundation testimony at
trial. See Fed. R. Evid. 902(11). However a notice requirement
exists when offering a business record by certification. Id. The
proponent of the evidence must give the opposing party notice of
the intention to offer that evidence, and must make the record and
5
the declaration available for inspection, “sufficiently in advance
of their offer into evidence to provide an adverse party with a
fair opportunity to challenge them.” Id. This notice is “intended
to give the opponent of the evidence a full opportunity to test the
adequacy of the foundation set forth in the declaration.” Fed. R.
Evid. 902(11) advisory committee’s note to 2000 amendments.
Rule 1006 permits the admission of charts into evidence as a
surrogate for underlying voluminous records that would otherwise be
admissible into evidence. United States v. Janati, 374 F.3d 263,
272 (4th Cir. 2004). Its purpose is to reduce the volume of
written documents that are introduced into evidence by allowing in
evidence accurate derivatives. Id. (citing United States v.
Bakker, 925 F.2d 728, 736 (4th Cir. 1991)). While Rule 1006 does
not require that the underlying documents actually be introduced
into evidence, they must be available to the opposing party for
examination and copying at a reasonable time and place. Id. at
273.
B.
Toll records clearly qualify as business records under Rule
803(6). See United States v. Wills, 346 F.3d 476, 490 (4th Cir.
2003) (cell phone records admissible under business records
exception). However, as the Government conceded during oral
argument, some of the records were based on hearsay because some of
6
the original phone numbers from which the records were produced
were obtained by Adams through other government agents or through
various computer databases.3 Additionally, for the toll records to
be admissible under Rule 803(6), they must be authenticated
pursuant to Rule 902(11), which requires both that written notice
be given and that the records be available in advance of their
admission into evidence. The Government did not give Laguerre
written notice of its intention to use the toll records and thus
they were not properly authenticated.4
Similarly, the Government did not make the toll records
available for examination or copying pursuant to Rule 1006. In
addressing Rule 1006, we have repeatedly noted that “it does
require that the documents be made available to the opposing party
for examination and copying at a reasonable time and place.”
Janati, 374 F.3d at 273; Bakker, 925 F.2d at 737; United States v.
Strissel, 920 F.2d 1162, 1164 (4th Cir. 1990).
3
The rest of the original phone numbers came into evidence
through the testimony of Ferguson, who had personal knowledge of
calling these numbers, and thus were not hearsay.
4
While the Government argues that defense counsel had access
to these records through the Government’s “open file policy,”
Laguerre’s counsel states that the records were not in the open
file. Without any evidence showing that the records were in the
open file, the court must assume that they were not. Moreover, the
Government did not provide the proper written notice.
7
C.
Despite these errors, under the harmless error standard of
review, the court must uphold an erroneous evidentiary ruling if we
conclude “after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error.” Weaver, 282 F.3d at 314.
Here, Ferguson, the CI, testified against Laguerre concerning the
drug transactions and several of Laguerre’s co-conspirators also
testified against him. While the charts visually represented the
conspiracy to the jury, the testimony of Ferguson and the co-
conspirators established its existence. Therefore, we find that
the judgment was not substantially swayed by the error in light of
the Government’s presentation of ample other evidence of Laguerre’s
guilt.
III.
Laguerre also presents a Sixth Amendment challenge under
Booker. The jury found Laguerre guilty of conspiracy to distribute
and possession with intent to distribute over fifty grams of
cocaine base and five kilograms or more of cocaine hydrochloride.5
5
We note that while the superseding indictment charged
Laguerre with one count of conspiracy to distribute and possession
with intent to distribute over fifty grams of cocaine base and five
kilograms or more of cocaine hydrochloride, J.A. 23, and the
Judgment in a Criminal Case states that Laguerre was found guilty
of this count, id. at 147, the jury’s verdict form contains a
discrepancy. Specifically, the jury’s verdict form states that the
8
At sentencing, the district court, who used the recommendation of
the Presentence Investigation Report as to drug amount, found
Laguerre responsible for 1.5 kilograms of cocaine base (more than
the amount necessarily found by the jury’s verdict), which yielded
a base level offense of 38. The district court then added three
(3) points for Laguerre’s role in the offense and found the total
offense level to be 41. The enhancements to Laguerre’s sentence
were based on facts found by the district court, not the jury.
With these enhancements, the district court sentenced Laguerre to
360 months.
As Laguerre has raised his Booker objection for the first time
on appeal, we review this issue under plain error analysis, which
our recent decision in Hughes governs. Under Hughes, the district
court plainly erred in imposing a sentence on Laguerre that
exceeded the maximum allowed under the guidelines based on the
facts found by the jury alone. Hughes, 401 F.3d at 547. Thus, we
vacate Laguerre’s sentence and remand for resentencing “consistent
with the remedial scheme set forth in Justice Breyer’s opinion for
the Court in Booker.” Id. at 544.
jury found Laguerre guilty of conspiracy to distribute and
possession with intent to distribute over fifty grams or more of
cocaine base and less than five kilograms but more than five
hundred grams of cocaine hydrochloride. Record on Appeal, Doc.
Entry # 65.
9
IV.
For the reasons set forth above, the judgment of the district
court is
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED.
10