United States v. Redding , 422 F. App'x 192 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERWIN BERNARD REDDING, a/k/a Easy,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00067-JPB-DJJ-1)
Submitted: March 23, 2011 Decided: April 5, 2011
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. Kratovil, KRATOVIL & AMORE, PLLC, Charles Town, West
Virginia, for Appellant. William J. Ihlenfeld, II, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Erwin Bernard Redding appeals his convictions and
sentence after a jury trial on two counts of distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1),
841(b)(1)(C) (2006) and 18 U.S.C. § 2 (2006). Redding claims
the district court erred in: (1) denying his motion for judgment
of acquittal on both counts; (2) failing to excuse a juror
because that juror was a current corrections officer;
(3) allowing testimony of crack cocaine purchases from Redding
prior to the two incidents with which Redding was charged
without giving a limiting jury instruction; (4) failing to give
him a two-level reduction under U.S. Sentencing Guidelines
Manual (“USSG”) § 3E1.1 (2009) for acceptance of responsibility;
and (5) calculating Redding’s drug quantity. We affirm.
This court reviews the district court’s denial of
Redding’s motion for a judgment of acquittal de novo. United
States v. Kingrea, 573 F.3d 186, 194 (4th Cir. 2009). A
defendant challenging the sufficiency of the evidence faces a
heavy burden. United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997). The jury verdict must be sustained “if,
viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006) (citations omitted). Substantial evidence is “evidence
2
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.” Id. (internal quotation marks and citation
omitted). Furthermore, “[t]he jury, not the reviewing court,
weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” Beidler, 110 F.3d at 1067
(internal quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted). We have carefully reviewed the record
and conclude that the evidence was sufficient to sustain
Redding’s convictions. See United States v. Randall, 171 F.3d
195, 209 (4th Cir. 1999) (discussing the elements of
distribution).
Next, Redding contends that the district court erred
in denying his motion to strike a juror for cause because the
juror was employed as a corrections officer at the time of the
trial. A trial judge’s decision regarding whether to remove a
juror for cause will not be overruled except for a “manifest
abuse of . . . discretion.” Poynter v. Ratcliff, 874 F.2d 219,
222 (4th Cir. 1989). A district court’s determination not to
excuse a juror for cause is entitled to “special deference.”
Patton v. Yount, 467 U.S. 1025, 1038 (1984). The critical issue
in deciding a challenge for cause is whether the juror “could be
3
fair and impartial and decide the case on the facts and law
presented.” United States v. Capers, 61 F.3d 1100, 1105 (4th
Cir. 1995). A challenge to a juror for cause is usually limited
to demonstrations of actual bias, with the doctrine of implied
bias applying only to “extreme situations” where the
circumstances make it highly unlikely that the average person
could remain impartial. United States v. Turner, 389 F.3d 111,
117 (4th Cir. 2004). Our review of the record reveals no
indication of actual bias or of an extreme situation warranting
removal. Therefore, we conclude the district court did not
abuse its discretion in denying Redding’s motion to excuse the
juror for cause.
Redding next contends that the district court erred in
allowing testimony, without a limiting jury instruction, of
crack cocaine purchases from him prior to the two incidents with
which he was charged. Redding claims the testimony was prior
acts testimony governed by Fed. R. Evid. 404(b), therefore
necessitating a limiting instruction. The district court found
that the testimony was not Rule 404(b) evidence but was instead
intrinsic evidence.
The Rule 404(b) inquiry applies only to evidence of
other acts that are “extrinsic to the one charged.” United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). “[A]cts
intrinsic to the alleged crime do not fall under Rule 404(b)’s
4
limitations on admissible evidence.” Id. at 87-88. “Evidence
of uncharged conduct is not ‘other crimes’ evidence subject to
Rule 404 if the uncharged conduct ‘arose out of the same series
of transactions as the charged offense, or if [evidence of the
uncharged conduct] is necessary to complete the story of the
crime on trial.’” United States v. Siegel, 536 F.3d 306, 316
(4th Cir. 2008) (quoting United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994)). See also Chin, 83 F.3d at 88 (“Other
criminal acts are intrinsic when they are inextricably
intertwined or both acts are part of a single criminal episode
or the other acts were necessary preliminaries to the crime
charged.” (internal quotation marks omitted)). Evidence is
intrinsic if it is necessary to “provide context relevant to the
criminal charges.” United States v. Cooper, 482 F.3d 658, 663
(4th Cir. 2007). We conclude that the district court was
correct in finding that the testimony was intrinsic evidence and
therefore was not Fed. R. Evid. 404(b) evidence. The witness’s
prior relationship with Redding provided relevant context for
the two drug transactions charged in the indictment.
Next, Redding contends that the district court erred
in denying his request for a two-level reduction for acceptance
of responsibility. This court reviews the district court’s
decision for clear error. United States v. Kise, 369 F.3d 766,
771 (4th Cir. 2004). Section 3E1.1(a) provides that a defendant
5
who “clearly demonstrates acceptance of responsibility for his
offense” is entitled to a two-level reduction in his offense
level. “[I]n order to receive a reduction under § 3E1.1 for
acceptance of responsibility, the defendant must prove by a
preponderance of the evidence that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.
1996). “The sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility. For this
reason, the determination of the sentencing judge is entitled to
great deference on review.” USSG § 3E1.1 cmt. n.5.
The district court denied this reduction based on USSG
§ 3E1.1 application note 2 which states that “[t]his adjustment
is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” This court has recognized a limited
exception to this rule:
In rare cases, however, a defendant may exercise his
right to trial and yet nevertheless be entitled to the
Responsibility Adjustment. Such a situation occurs
where a defendant goes to trial to assert and preserve
issues that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or a
challenge to the applicability of a statute to his
conduct).
6
Elliott v. United States, 332 F.3d 753, 765 (4th Cir. 1993)
(internal quotation marks omitted).
This case does not present one of those unique
circumstances. Redding did not go to trial simply to preserve
legal issues not relating to factual guilt. Because Redding put
the government to its burden of proof and went to trial
challenging his factual guilt, the district court was correct in
finding the two-level reduction was inappropriate.
Lastly, Redding argues for the first time in his reply
brief that the district court improperly calculated the drug
quantities, and as a result, his sentence is unconstitutional.
However, “[i]t is a well settled rule that contentions not
raised in the argument section of the opening brief are
abandoned.” A Helping Hand v. Balt. County, 515 F.3d 356, 369
(4th Cir. 2008) (internal quotation marks omitted); see also
SEC v. Pirate Investor, 580 F.3d 233, 255 n.23 (4th Cir. 2009)
(stating that “[o]rdinarily we do not consider arguments raised
for the first time in a reply brief”), cert. denied, 130 S. Ct.
3506 (2010). Therefore, we decline to consider the argument
raised in Redding’s reply brief and deny his motion to join an
additional issue on appeal.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
7
before the court and argument would not aid the decisional
process.
AFFIRMED
8