United States v. Pirtle ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4146
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
versus
RONALD PIRTLE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-03-335-MJG)
Submitted: January 6, 2006 Decided: March 29, 2006
Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Lease, SMITH, LEASE & GOLDSTEIN, L.L.C., Rockville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Paul M. Tiao, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald Pirtle appeals his jury conviction and sentence for one
count of conspiracy to distribute and to possess with the intent to
distribute fifty grams or more of cocaine base (crack), 21 U.S.C.
§§ 841(b)(1)(A) and 846. The district court sentenced Pirtle to
life imprisonment. On appeal, Pirtle presses several claims.
After thoroughly reviewing the record, we affirm Pirtle’s
conviction and sentence.
Pirtle first claims that the district court erred when it
denied his motion to suppress evidence obtained pursuant to two
wiretap orders, one on May 7, 2003, the other on June 11, 2003.
With regard to the May 7 wiretap order, Pirtle contends that the
government failed to exhaust normal, less intrusive investigative
procedures prior to applying for the wiretap order. With regard to
the June 11 wiretap order, Pirtle contends that the wiretap order
was unnecessary because the objectives of the wiretap order had
been obtained.
Turning to the May 7 wiretap order, 18 U.S.C. § 2518(3)(c)
permits a district court to issue a wiretap order only after making
a specific finding that “normal investigative procedures have been
tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous.” Section 2518(1)(c)
requires a wiretap application to contain “a full and complete
statement as to whether or not other investigative procedures have
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been tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous.”
In discharging its burden, the government cannot rely on
conclusory statements that normal techniques would be unproductive
or that gathering usable evidence has been difficult. United
States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994). However, the
government is not required to show that other methods have been
“wholly unsuccessful,” or that it has exhausted “all possible
alternatives to wiretapping.” Id. at 1298 (citation and internal
quotation marks omitted). Instead, the government need only
present specific factual information sufficient to establish that
it has encountered difficulties in penetrating the criminal
enterprise or in gathering evidence to the point where wiretapping
becomes reasonable given the statutory preference for less
intrusive techniques. Id.In this case, the affidavit in support of the May 7 wiretap
order explained how numerous normal investigative procedures had
failed, particularly how the use of various informants were
unsuccessful in obtaining meaningful evidence. The affidavit also
set forth the difficulties that were encountered in investigating
Pirtle’s drug activities and the substantial risks involved. In
our view, the affidavit set forth sufficient facts to warrant the
issuance of the May 7 wiretap order.
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With regard to the June 11 wiretap order, the affidavit in
support of the wiretap order explained that normal investigative
procedures were still unsuccessful and that the investigation
continued to face difficulties and involved substantial risks.
Moreover, the record discloses that, as of the date of the
application, the government was aware of some, but not all, of
Pirtle’s sources of crack. Finally, the government had not yet
determined the identity of all the participants on the distribution
side of Pirtle’s organization. Under these circumstances, the
issuance of the June 11 wiretap order was eminently reasonable.
Pirtle next claims that the district court violated his Sixth
Amendment rights when it sentenced him to a mandatory term of life
imprisonment under 21 U.S.C. § 841(b)(1)(A) based on two prior
felony drug convictions that were not alleged in the indictment.
A person that commits a 21 U.S.C. § 841(a)(1) violation is subject
to a mandatory life sentence if they committed the instant
§ 841(a)(1) violation “after two or more prior convictions for a
felony drug offense have become final.” Id. § 841(b)(1)(A). The
term “felony drug offense” means “an offense that is punishable by
imprisonment for more than one year under any law of the United
States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marihuana, anabolic steroids,
or depressant or stimulant substances.” Id. § 802(44).
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A district court may enhance a sentence based on the “‘fact of
a prior conviction,’” United States v. Thompson, 421 F.3d 278, 282
(4th Cir. 2005), regardless of whether it was admitted to by the
defendant or found by a jury so long as the facts necessary to
support the enhancement “inhere in the fact of conviction” rather
than being “extraneous to it,” id. at 283. Facts necessary to
support a sentencing enhancement inhere in the fact of conviction
rather than being extraneous to it so long as they come from “the
charging document, the terms of a plea agreement, the plea
colloquy, the statutory definition, or any explicit finding of the
trial judge to which the defendant assented to determine a disputed
fact about a prior conviction.” United States v. Collins, 412 F.3d
515, 521 (4th Cir. 2005).
Our review of the record discloses that the respective
charging documents and certificates of disposition with respect to
Pirtle’s prior drug felony convictions provided the district court
an adequate basis to conclude that Pirtle had two prior convictions
for felony drug offenses. The first conviction (involving conduct
committed in May 1996 for which he was arrested that same month)
was for “CRIMINAL POSSESSION” of “cocaine” in the “5th DEGREE.”
(J.A. 756). The second conviction (involving conduct committed in
September 1996 for which he was arrested in October 1996) was for
the “CRIMINAL SALE” of “cocaine” in the “3rd DEGREE.” (J.A. 762).
Both of these offense are felonies under New York law. See N.Y.
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Penal Law § 220.39 (“Criminal sale of a controlled substance in the
third degree is a class B felony.”); N.Y. Penal Law § 220.06(“Criminal possession of a controlled substance in the fifth degree
is a class D felony.”); cf. United States v. Brown, 937 F.2d 68,
69-70 (2d Cir. 1991) (holding that a state drug offense that was a
felony under New Jersey common law was a felony drug offense for
purposes of § 841(b)(1)(B)). Accordingly, Pirtle’s prior drug
felony convictions required the court to sentence Pirtle to life
imprisonment.
Pirtle also attacks Special Agent David Shields’ testimony at
trial regarding the meaning of statements made by Pirtle and
several coconspirators during two calls intercepted over the
wiretap on May 9 and June 13, 2003. We find that any error here is
harmless beyond a reasonable doubt.
Agent Shields testified about the meaning of statements during
two calls and his testimony was consistent with the testimony of
one of Pirtle’s coconspirators who offered a similar interpretation
of the calls. Thus, Agent Shields’ testimony was largely
cumulative to evidence already before the jury. Moreover, these
calls only represented two of the seventeen calls played during the
trial. Finally, the evidence of guilt presented by the government
was nothing short of overwhelming. In short, the admission of
Agent Shields’ testimony played no role in the outcome of the
trial.
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Finally, Pirtle contends that the district court erred when it
declined to define the term “reasonable doubt” after he requested
such an instruction. We review the denial of a proposed jury
instruction for an abuse of discretion. See United States v.
Seidman, 156 F.3d 542, 551 (4th Cir. 1998).
We have consistently expressed disapproval of attempts by
courts to define reasonable doubt. See, e.g., United States v.
Najjar, 300 F.3d 466, 486 (4th Cir. 2002); United States v.
Oriakhi, 57 F.3d 1290, 1300 (4th Cir. 1995). Moreover, we have
held that a court should not attempt to define reasonable doubt
absent a specific jury request. Oriakhi, 57 F.3d at 1300. In this
case, there is no indication that the jury asked the district court
to define reasonable doubt. Therefore, the court did not abuse its
discretion when it declined to give Pirtle’s requested reasonable
doubt instruction.
For the reasons stated herein, we affirm Pirtle’s conviction
and sentence. 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
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