United States v. King , 270 F. App'x 261 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4683
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM KING,
Defendant - Appellant.
No. 06-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO MURRAY,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:05-cr-00203-JFM)
Submitted: February 28, 2008 Decided: March 19, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
G Arthur Robbins, CHESAPEAKE MERIDIAN, Annapolis, Maryland; Donald
E. Kaplan, LAW OFFICE OF DONALD KAPLAN, Baltimore, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Charles J.
Peters, A. David Copperthite, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
William King (Appeal No. 06-4683) and Antonio Murray
(Appeal No. 06-4724) appeal their convictions by a jury and
sentences on charges of conspiracy to distribute narcotics,
conspiracy to interfere with commerce by robbery and extortion, in
violation of 18 U.S.C. § 1951 (2000) (Count 1); conspiracy to
distribute cocaine base, cocaine, heroin, and marijuana, in
violation of 21 U.S.C. § 1951 (2000) (Count 2); and conspiracy to
possess firearms in furtherance of a drug trafficking conspiracy,
in violation of 18 U.S.C. § 924(o) (2000) (Count 3). In addition
to Counts 1, 2, and 3, as set forth above, King was charged in a
Superseding Indictment with nine counts of possession with intent
to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1)
(2000) (Counts 4, 5, 7, 8, 14, 18, 22, 26, and 30); seven
additional counts of interference with commerce by robbery and
extortion, in violation of 18 U.S.C. § 1951 (2000) (Counts 10, 12,
16, 20, 24, 28, and 32); and fourteen additional counts of
possession of a firearm in furtherance of a crime of violence or a
drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2000)
(Counts 6, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33). In
addition to Counts 1-3 above, Murray was named as a defendant in
Counts 7, 10-15, and 20-27. The jury found King guilty of all drug
and Hobbs Act counts and thirteen counts of possession of a firearm
in furtherance of a crime of violence or drug trafficking crime.
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Murray was found guilty of all drug and Hobbs Act counts and six
counts of possession of a firearm in furtherance of a crime of
violence or drug trafficking crime.
The district court sentenced King on June 16, 2006, to
concurrent 121-month terms of imprisonment on the drug and Hobbs
Act counts (Counts 1-5, 7, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26,
28, 30, and 32); to a 60-month term of imprisonment on one of the
firearm counts (Count 6), to run consecutively to the 121-month
sentence; and to twenty-five years’ confinement on the remaining
twelve counts (Counts 9, 11, 13, 17, 19, 21, 23, 25, 27, 29, 31,
and 33), to run consecutively to the other sentences and to each
other, for a total sentence of 3660 months’ (305 years)
imprisonment. King was further sentenced to a total term of
supervised release of four years, and ordered to pay a statutory
assessment of $3200. An amended judgment was filed on June 26,
2006.
The district court sentenced Murray to concurrent 108-
month terms of imprisonment on the drug and Hobbs Act counts
(Counts 1-3, 7, 10, 12, 14, 20, 22, 24, and 26); to a 60-month term
of imprisonment on one of the firearm counts (Count 11), to run
consecutively to the 108-month sentence; and to twenty-five years’
confinement on the remaining five counts (Counts 13, 21, 23, 25,
and 27), to run consecutively to the other sentences and to each
other, for a total sentence of 1668 months’ (139 years)
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imprisonment. Murray was further sentenced to a total term of
supervised release of five years, and ordered to pay a statutory
assessment of $1700.
On appeal, King and Murray challenge the charges in the
Superseding Indictment, asserting that they constitute undue
multipliciousness of charges; claiming the evidence was
insufficient to support the jury’s conclusion that their service
weapons were carried in furtherance of the offenses alleged;
contending that the jury instructions failed accurately to identify
the elements of the offenses as alleged; and asserting that the
district judge erred in determining that he had no discretion to
ameliorate the alleged irrational sentence structure created by the
Government’s charging choices in this case. We affirm.
At trial, the following evidence was introduced. From
2004 until their arrest on May 16, 2005, King and Murray were
employed as detectives by the Baltimore City Police Department and
worked primarily in the Public Housing Drug Enforcement Unit,
concentrating on drug enforcement in public housing and surrounding
areas in Baltimore City. While working as police detectives, King
and Murray conspired with Antonio Mosby (“Mosby”), and others not
named in the indictment, to rob drug traffickers on the streets of
Baltimore City. Mosby and others would identify persons on the
street who were in possession of narcotics and proceeds from the
sale of narcotics. Mosby would then contact King and Murray, who
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would detain these persons under guise of police activity. During
the course of the detention, and while armed with their service
weapons, King and Murray threatened arrest and prosecution, took
control of controlled substances, including cocaine base, heroin,
and marijuana, and the proceeds from the sale of such controlled
substances, from these persons. After the robberies, King and
Murray distributed the seized narcotics to Mosby and others to sell
on the street. The evidence demonstrated that King and Murray
would split the profits from the sale of narcotics, as well as any
proceeds recovered from the person they had detained. At trial,
King and Murray maintained that their activities were all in
furtherance of legitimate police activity in an effort to develop
sources to lead to arrests of drug distributors above the street
level individuals with whom they were interacting and that the
proceeds of the activities were paid out to informants, principally
Mosby.
Mickey Harvey testified at trial that he was arrested by
King in 2003 after King pulled out his gun, put it to Harvey’s
head, and detained Harvey in King’s police vehicle. Harvey
testified that he was released without charges and thereafter began
to work with both King and Murray. Harvey would spot drug dealers
and notify King and Murray of the dealers’ locations. King and
Murray would then detain these individuals, rob them of their drugs
and drug proceeds, give the stolen drugs to Harvey to sell, and
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split the stolen proceeds among them as King and Murray deemed
appropriate.
Davon Mayer testified that King arrested him in 2003 and
released him without charges. Mayer agreed to work for King by
locating drug stashes on the street which King could steal. King
would then either sell the drugs to Mayer, or Mayer would take the
drugs and sell them, splitting the proceeds with King. Mayer
ultimately went to the Federal Bureau of Investigation (“FBI”) with
information about King, and agreed to cooperate with the FBI.
Mosby attested that he also was arrested in 2003 by King
and Murray. He testified that both King and Murray were armed when
they placed him into their police car. Mosby was released without
charges and began working with King and Murray by identifying drug
dealers for King and Murray to rob and locating drug stashes for
them to steal. Mosby would call King and Murray with a description
of the dealers, and they would drive up in their police vehicle,
physically detain the dealers on the street or in the car, search
them, and take their money and drugs. After the robberies, King
and Murray would meet with Mosby and usually sell the stolen drugs
to Mosby for one-half the street value of the drugs. Mosby would,
in turn, sell the drugs, making a 100 percent profit.
During trial, and during their own testimony, neither
King nor Murray disputed that they were armed with loaded service
revolvers during these street encounters. The Government
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introduced evidence that, on April 7, 2005, King and Murray picked
up Mosby in anticipation of robbing drug dealers. When King
realized that he did not have his service revolver, he and Murray
drove back to the police station to pick up the weapon. After
retrieving the weapon, they met with Mosby and resumed their
activities.
Appellants’ first and fourth challenges relate to the
multiple § 924(c) offenses as set forth in the Superseding
Indictment, and the resultant 25-year mandatory minimum consecutive
sentences imposed by the district court on the related convictions
of those charges. They first claim that the § 924(c) charges for
each incident based on the firearms that they were required to
possess as a function of their status as police officers violated
their Due Process rights and the Fifth Amendment’s prohibition
against Double Jeopardy. Appellants contend that, while they made
no pretrial objection to the multiple counts, they were prejudiced
by the district court’s treatment of each § 924(c) count as a
“subsequent conviction” for purposes of sentencing, which resulted
in multiple, consecutive sentences. They argue that the manner in
which they were sentenced illustrates an infirmity in the analyses
of Deal v. United States, 508 U.S. 129 (1993), and United States v.
Camps, 32 F.3d 102 (4th Cir. 1994), and that such analyses should
be “revisited” in the context of an ongoing conspiracy. Secondly,
Appellants assert that the multiple § 924(c) counts on which they
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were convicted and sentenced violate the Eighth Amendment’s
prohibition against cruel and unusual punishment, and that the
district court erred in finding that it had no discretion but to
impose consecutive 25-year sentences for each § 924(c) conviction.
This court reviews de novo a claim of multiplicity.1
United States v. Mancuso, 42 F.3d 836, 847 n.11 (4th Cir. 1994).
Appellants admit that their failure to raise this issue prior to
trial renders the objection waived, absent demonstration of cause
for the failure to object and actual prejudice resulting from the
defect. See Fed. R. Crim. P. 12(f); United States v. Colton, 231
F.3d 890, 909 (4th Cir. 2000).
We find Appellants’ challenges to the imposition of
consecutive 25-year sentences on each § 924(c) conviction,2 to the
extent their challenges were not waived by their failure to object,
are unavailing, as such sentences were mandated by law, were not
unconstitutional, and were properly imposed. See Deal, 508 U.S. at
1
Appellants do not actually advance a true “multiplicity”
claim, i.e., that the indictment charged a single offense in
several counts, and, indeed, review of the indictments in this case
reveals that each count charged a different offense. See United
States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000). Rather, the
foundation for Appellants’ challenges is that the imposition of
consecutive sentences for multiple § 924(c) convictions was illegal
or improper.
2
To the extent Appellants seek to raise proportionality review
under the Eighth Amendment, such review is not available for any
sentence less than life imprisonment without the possibility of
parole. United States v. Ming Hong, 242 F.3d 528, 532 & n.3 (4th
Cir. 2001).
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137; Camps, 32 F.3d at 107. See also United States v. Robinson,
404 F.3d 850, 862 (4th Cir. 2005) (vacating concurrent sentences
imposed by district court on eight separate § 924(c) violations,
holding that the sentences for each § 924(c) conviction must be
consecutive to the others, resulting in a minimum sentence for
Robinson of 2184 months’ imprisonment, and noting that a district
court has no discretion to impose a sentence outside the statutory
range established by Congress for the offense of conviction);3
United States v. Khan, 461 F.3d 477, 495 (4th Cir. 2006)
(consecutive sentences mandated by § 924(c), even where unusually
lengthy and exceeding a defendant’s reasonable life expectancy, do
not offend the Eighth Amendment).4
There is no question in this case that Appellants
committed different robberies on separate occasions, distributed or
possessed with the intent to distribute drugs on separate
3
See Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (“Severe,
mandatory penalties may be cruel, but they are not unusual in the
constitutional sense . . ..”).
4
To the extent Appellants’ cursory reference, without specific
argument, of a challenge to the Due Process and Double Jeopardy
Clauses of the Constitution is sufficient to warrant review by this
court on appeal of those challenges, they likewise are without
merit. Section 924(c) violates the Due Process Clause only if
Appellants can demonstrate that the statute “lacks a rational
basis,” which it does not. See Khan, 461 F.3d at 495. Moreover,
as long as the underlying crimes on which the consecutive § 924(c)
sentences are based are not duplicative, i.e., they do not relate
to identical criminal acts, they do not violate the Double Jeopardy
Clause. Id. at 494. Given that each § 924(c) count on which
Appellants here were sentenced related to a different criminal act,
any Double Jeopardy challenge would fail.
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occasions, and possessed firearms in furtherance of a crime of
violence or a drug trafficking crime on each of those occasions.
As such, the imposition of consecutive sentences for each § 924(c)
count is mandated by Congress, consistent with the plain language
of § 924(c), and does not offend constitutional rights and
principles set forth in the Fifth or Eighth Amendments.
Appellants next claim that the evidence was insufficient
to support their § 924(c) convictions. Specifically, they
challenge the jury’s determination that they possessed a firearm
“in furtherance” of the 21 U.S.C. § 841(a) and 18 U.S.C. § 1951crimes alleged. They do not challenge their convictions for the
predicate crimes of violence and drug trafficking crimes that
underlie each § 924(c) conviction, nor do they dispute that they
possessed firearms during the commission of the predicate offenses.
It is further undisputed that the predicate crimes occurred in
high-crime areas marked by drug-trafficking and violence.
Appellants also agree that their “guns were accessible, fully
loaded, always on their person, available for self-defense, and
near drugs.” During trial, Appellants testified that they always
were in possession of their firearms, and that they possessed them
for protection.
In evaluating the sufficiency of the evidence supporting
a criminal conviction on direct review, “[t]he verdict of the jury
must be sustained if there is substantial evidence, taking the view
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most favorable to the Government, to support it.” Glasser v.
United States, 315 U.S. 60, 80 (1942). Substantial evidence is
evidence “that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). This court considers circumstantial
and direct evidence, and allows the government the benefit of all
reasonable inferences from the facts proven to those sought to be
established. Id. at 858; United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982). In resolving issues of substantial evidence,
this court does not weigh evidence or review witness credibility.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Rather, it is the role of the jury to judge the credibility of
witnesses, resolve conflicts in testimony, and weigh the evidence.
United States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Thus,
a defendant challenging his conviction based upon the sufficiency
of the evidence “bears a heavy burden,” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
omitted), as “a decision [to reverse for insufficient evidence]
will be confined to cases where the prosecution’s failure is
clear.” Burks v. United States, 437 U.S. 1, 17 (1978).
Section 924(c) requires evidence indicating that the
possession of a firearm “furthered, advanced, or helped forward”
the predicate crime. United States v. Lomax, 293 F.3d 701, 705
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(4th Cir. 2002). It is sufficient to establish that the purpose of
the firearm was to “protect or embolden” the defendant. United
States v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006). Even
without evidence of brandishing or firing of a weapon, the carrying
of a firearm during a drug trafficking crime supports the jury’s
finding that a defendant carried it for his personal protection,
thus satisfying the applicable standard. Id.Appellants’ argument is that the testimonial evidence
introduced by the Government established merely that King and
Murray possessed their service firearms during the commission of
the predicate offenses, but that it did not demonstrate, beyond a
reasonable doubt, that they possessed the firearms in furtherance
of their crimes. They base the distinction on their allegation
that their possession of their firearms was legal because they were
police officers, rather than illegal. They further assert that
their possession of their firearms was “merely incidental” to their
status as police officers, and that there was no evidence that the
weapons played any role in the offenses proved.
We find that the distinction Appellants attempt to make
is both disingenuous and without a difference. While they may
legally have possessed their service weapons for protection,
intimidation, and to embolden them during the commission of
legitimate police activities, the possession of those same firearms
did not suddenly cease to be protection, intimidation, or
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emboldening devises during their commission of illegal activities.
Moreover, the Government introduced testimonial and tape-recorded
evidence that demonstrated clearly that, on April 7, 2005, King and
Murray interrupted their illegal activities to recover King’s
firearm before continuing with such activities. This evidence,
together with the plethora of evidence that Appellants possessed
their weapons in plain view of those from whom they stole drugs and
drug proceeds, fully supports the jury’s finding that Appellants
possessed their firearms in furtherance of their crimes. See
Burgos, 94 F.3d at 857, 858.
Appellants’ final issue on appeal is whether the jury
instructions constructively amended or created a variance in the
§§ 924(o), (c) counts of the indictment, causing prejudice to them.
Specifically, they claim there was constructive amendment of Count
3, which charged knowing, intentional, and unlawful possession of
firearms during a conspiracy in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(o), and Counts 6, 9, 11, 13, 15,
17, 19, 21, 23, 25, 27, 29, 31, 33, the counts which charged
knowing, intentional, and unlawful possession of a firearm in
furtherance of a crime of violence or a drug trafficking crime, in
violation of 18 U.S.C. § 924(c), because the jury instruction
failed to include the element of “unlawful” possession that was
charged in the indictment. As Appellants correctly note,
“unlawfully” is not an element in either § 924(c) or (o), yet the
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Government included the term in its Superseding Indictment. The
instruction given in this case relative to this issue allowed the
jury to convict Appellants on evidence of “‘possessing’ a firearm
in furtherance of a crime,” not “unlawfully” possessing a firearm,
as was charged in the indictment. In the alternative, Appellants
contend that the inclusion of the term “unlawfully” in the
indictment was a “variance,” which resulted in unfair surprise and
prejudice, requiring reversal of their convictions. They claim
that the elimination of the word “unlawfully” from the jury
instruction was error because the jury was instructed that it could
convict on a “different, easier to prove version of the offense
charged.”
Constructive amendments are error per se and “must be
corrected on appeal even when not preserved by objection.” United
States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994).5 A
constructive amendment occurs when the bases for conviction are
broadened beyond those charged in the indictment. United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999). A constructive
amendment is where “the indictment is altered ‘to change the
elements of the offense charged, such that the defendant is
actually convicted of a crime other than that charged in the
5
Appellants here failed to raise this issue in the district
court.
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indictment.’” Id., quoting United States v. Schnabel, 939 F.2d
197, 203 (4th Cir. 1991).
Here, the term “unlawfully” in the charging document was
not a separate element. Rather, it was a descriptive term
characterizing the actions of King and Murray as “unlawful” in
possessing firearms in furtherance of the (unlawful) crimes charged
in the indictment. Stated differently, the use of the term
“unlawfully” conveyed to King and Murray that the Government
believed their conduct to be against the law cited in the
indictment. We therefore find that the use of the term
“unlawfully” in the Superseding Indictment was mere surplusage, did
not add an element or in any way change the nature of the charges,
and did not prejudice King or Murray, who vigorously defended their
case and at no time raised the issue below. See, e.g., United
States v. Miller, 471 U.S. 130, 136-37 (1985). Given that the
inclusion of the term “unlawfully” in the indictment, and the
subsequent failure to instruct the jury about this term, did not
impermissibly broaden the charges such that Appellants were
convicted of a crime other than that charged, Randall, 171 F.3d at
203, their claim of error is without merit.6
6
Nor was there a variance because the characterization of the
charged conduct as unlawful had no impact on the “circumstances
alleged in the indictment.” See, e.g., Floresca, 38 F.3d at 709.
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Accordingly, we affirm the convictions and sentences of
King and Murray. 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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