United States v. Mitchell , 226 F. App'x 320 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH MITCHELL,
Defendant - Appellant.
No. 05-4200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BERNARD NATHANIEL CHRISTIAN,
Defendant - Appellant.
No. 05-4259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RALPH K. WILLIAMS,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
03-351)
Argued: October 26, 2006 Decided: March 19, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Traxler and Judge Gregory joined.
ARGUED: Robert Jay Feldman, Baltimore, Maryland; Arnold Christopher
Joseph, COZEN O’CONNOR, Philadelphia, Pennsylvania, for Appellants.
James G. Warwick, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Peter T. Kandel, Nelson R. Kandel, KANDEL & ASSOCIATES,
P.A., Baltimore, Maryland, for Appellant Kenneth Mitchell; Harold
I. Glaser, Baltimore, Maryland, for Appellant Ralph K. Williams.
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
Bernard Christian, Ralph Williams, and Kenneth Mitchell
(“Defendants”) were convicted by a federal jury and sentenced to
188, 235, and 360 months, respectively, for conspiracy to
distribute more than five kilograms of cocaine in violation of 21
U.S.C. § 846. The Defendants now appeal their convictions and
sentences. For the following reasons, we affirm.
I
The evidence at trial tended to establish that the Defendants
were involved in a drug trafficking conspiracy, distributing in
Baltimore drugs that originated in Los Angeles. In addition to the
Defendants, the following individuals were key players in the
conspiracy: Charles Ransom, Hugo Lopez, James Murphy, and Patrich
Giles. The most inculpatory evidence against the Defendants was
the testimony of these co-conspirators.
Law enforcement officials first discovered the conspiracy when
Murphy was arrested in Baltimore in connection with a drug
trafficking scheme that is unrelated to this case. Murphy
cooperated with law enforcement officials, who eventually
intercepted several Federal Express packages labeled for shipment
from Los Angeles to Johns Hopkins Hospital in Baltimore. Many of
the packages contained cocaine hidden inside empty computer cases.
Christian, who serviced the Johns Hopkins route as a Federal
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Express driver, was responsible for pulling these packages off the
line instead of delivering them to the specified address. Sometime
after these initial packages were intercepted, several additional
packages containing large quantities of cash and bearing
Christian’s handwriting or Federal Express employee number were
seized. Specifically, a Federal Express package that was addressed
to Ransom and bore Christian’s employee number and handwriting was
damaged in transit to Los Angeles. The package was full of cash,
and Ransom was arrested when he attempted to claim it. A search of
Ransom’s house revealed packages sent by Williams and Mitchell, in
addition to vacuum-sealed bags full of cash; the bags were similar
to ones previously found in Christian’s garbage. The search of
Ransom’s house also revealed Federal Express and United Parcel
Service packages that contained large amounts of cash and bore
Christian’s handwriting. Ransom’s cooperation with law enforcement
officials ultimately led to the arrest of Lopez. Giles, a partner
of Murphy and Lopez, was also arrested in relation to this
conspiracy.
II
The Defendants argue that the district court erred in numerous
ways. We address herein only the four errors that require detailed
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analysis.1 These alleged errors were raised below in the form of
motions to strike or exclude testimony, requests for jury
instructions, and motions for mistrial. Accordingly, we review the
district court’s rulings for abuse of discretion. United States v.
Rivera, 412 F.3d 562, 572 (4th Cir. 2005) (motion to strike or
exclude testimony); United States v. Hurwitz, 459 F.3d 463, 474
(4th Cir. 2006) (request for jury instruction); United States v.
Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993) (motion for mistrial).
A.
The Defendants first argue that the district court improperly
applied Fed. R. Evid. 801(d)(2)(E) by admitting co-conspirators’
statements to prove their participation in the drug conspiracy.2
A significant portion of the Government’s case was based on out-of-
court statements made by Ransom to Lopez, Murphy, and Giles. Such
statements, which would otherwise be inadmissible hearsay under
Fed. R. Evid. 801 and 802, may be admitted if the district court
finds “(1) that there was a conspiracy involving the declarant and
the party against whom admission of the evidence is sought and (2)
that the statements at issue were made during the course of and in
furtherance of that conspiracy.” United States v. Blevins, 960
1
We have considered the Defendants’ other arguments and find
them to be without merit.
2
We assume for the sake of argument that the Defendants’
motion in limine properly preserved the objection.
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F.2d 1252, 1255 (4th Cir. 1992); see also Fed. R. Evid.
801(d)(2)(E) (statement offered against a party is not hearsay if
it is “a statement by a coconspirator of a party during the course
and in furtherance of the conspiracy”).
The Defendants’ chief contention is that Ransom’s statements
to Lopez, Murphy, and Giles were not during the course of and in
furtherance of the conspiracy. These co-conspirators testified
that they were not concerned with the handling of the cocaine after
Ransom paid for it and took possession of it. Thus, the Defendants
argue that Ransom’s incriminating statements about their activity
in Baltimore did not further the conspiracy.
We find the Defendants’ argument unpersuasive. Ransom made
the statements throughout the course of the conspiracy in reference
to the specific drugs being purchased and the particular method of
distribution. At the very least, these statements assured co-
conspirators that a sufficient demand existed for the Los Angeles
cocaine supply. Further, these statements certainly gave the Los
Angeles co-conspirators peace of mind that their trafficking
operation had evaded detection –- a vital concern for any illicit
enterprise. We therefore hold that the district court did not
abuse its discretion in admitting testimony regarding conversations
between Ransom and his co-conspirators; Ransom’s statements were
clearly made in the course and furtherance of the conspiracy and
otherwise satisfy the requirements of Rule 801(d)(2)(E).
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B.
The Defendants next assert that the district court erred by
refusing to instruct the jury on how properly to weigh evidence of
drug conspiracies in which the Defendants did not participate,
thereby causing an impermissible variance. Generally, a variance
occurs when the evidence produced at trial demonstrates criminal
activity materially different than the offense alleged in the
indictment. United States v. Kennedy, 32 F.3d 876, 883 (4th Cir.
1994). A variance requires reversal “only if the appellant shows
that the variance infringed his substantial rights and thereby
resulted in actual prejudice.” Id. (internal quotations omitted).
In a conspiracy case, actual prejudice must be shown by
demonstrating that a “spillover effect” occurred, which caused the
jury to transfer evidence from one conspiracy to a defendant who
participated in a different conspiracy. United States v. Ford, 88
F.3d 1350, 1360 (4th Cir. 1996).
The Defendants maintain that the Government’s case proved the
existence of five clearly distinct drug conspiracies, only one of
which involved the Defendants. We disagree because the Defendants’
theory artificially compartmentalizes a single, broad conspiracy.
The five “distinct” conspiracies are nothing more than varying
permutations of substantially the same players. Ransom, the
Defendants’ chief supplier and a primary figure in the drug ring,
was involved in four of the so-called distinct conspiracies. Lopez
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sold cocaine to Ransom, as well as directly to Williams and
Mitchell, and Lopez was involved in nearly all of the drug
transactions at issue in this case. Murphy and Giles were cohorts
of Ransom and Lopez, and they knew that Williams and Mitchell were
associates of Ransom who sold cocaine in Baltimore. Finally,
everyone in the conspiracy knew that Ransom had a contact,
Christian, who worked at Federal Express or United Parcel Service
pulling cocaine shipments off the distribution line. Accordingly,
we conclude that no variance occurred because the evidence tended
to establish the existence of only one conspiracy.3 Therefore, the
district court did not err in refusing to give a multiple
conspiracies instruction. See United States v. Bowens, 224 F.3d
302, 308 (4th Cir. 2000) (holding that it was not error for the
district court to refuse to instruct the jury on multiple
conspiracies where evidence did not support the existence of
multiple conspiracies).
C.
The Defendants next contend that the district court erred in
its handling of Ransom’s appearance as a witness. Ransom was
3
We note that Murphy’s initial arrest arose out of a truly
distinct conspiracy, which led him to inform authorities about the
conspiracy at issue in this case. However, when evidence of the
distinct conspiracy was introduced for purposes of establishing
credibility, the district court gave a proper limiting instruction
that prevented any spillover effect.
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expected to testify against the Defendants pursuant to a plea
agreement; however, after giving only minimal testimony about his
relationship with the Defendants and his past experience as a drug
dealer, Ransom refused to testify further. The Defendants moved
for a mistrial on the basis of the prejudicial effect of Ransom’s
abandoned testimony. Though the district court denied the motion
for mistrial, it promptly struck Ransom’s testimony and instructed
the jury to disregard his appearance on the witness stand.
The Defendants inaccurately characterize the district court’s
curative instruction as permissive instead of mandatory. Reading
the instruction as a whole, the district court clearly directed the
jury that they were required to disregard Ransom’s brief appearance
as a witness. The jury is presumed to have followed this curative
instruction. Hinkle v. City of Clarksburg, 81 F.3d 416, 427 (4th
Cir. 1996). Therefore, the district court did not abuse its
discretion in denying the Defendants’ motion for mistrial.
D.
Finally, the Defendants assert that the district court erred
in denying Defendants’ motion to strike or give a curative
instruction due to the Government’s violation of Maryland Local
Rule 107.14. Maryland Local Rule 107.14 prohibits, inter alia,
counsel conferring with a witness during a break in re-direct
examination. Government counsel admits violating this rule by
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conferring with Detective Morcomb, a witness who testified
regarding summaries of documentary evidence, during an overnight
recess in re-direct examination.
As the district court correctly noted, the Defendants had
every opportunity to expose the Government’s improper conduct in
front of the jury on both re-cross examination and at closing
argument. We believe that the jury could accurately determine the
credibility of Morcomb, who apparently was obviously more familiar
with documents after conferring with Government counsel. Further,
because jurors were allowed independently to review the documents
about which Morcomb was testifying, no harm resulted from any
testimony given about such documents. We therefore hold that the
district court did not abuse its discretion in refusing to strike
Morcomb’s testimony and declining to instruct jurors that they
could weigh the local rule violation in their deliberations.
III
For the foregoing reasons, we affirm the convictions and
sentences of the Defendants.
AFFIRMED
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