United States v. Fletcher , 237 F. App'x 805 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LESTER FLETCHER, a/k/a Big Mann,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:05-
cr-00179-PJM)
Submitted: June 6, 2007 Decided: July 9, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Fred Warren Bennett, BENNETT & BAIR, L.L.P., Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, David I.
Salem, Gina Simms, Assistant United States Attorneys, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lester Lee Fletcher was convicted after a jury trial of
conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2000)
(“Count One"); possession with intent to distribute cocaine or
cocaine base, in violation of 18 U.S.C. § 2 (2000) and 21 U.S.C.
§ 841 (2000); conspiracy to commit money laundering, in violation
of 18 U.S.C. § 1956(h) (2000), and money laundering, in violation
of 18 U.S.C. §§ 2 and 1956(a)(1)(B)(i) (2000). Fletcher was
sentenced to life in prison on Count One, 120-months on each of the
possession counts, and 240-months on each of the remaining counts,
all to run concurrently. On appeal, Fletcher argues the district
court: (i) erred in denying his motion to suppress evidence seized
as a result of the traffic stops involving Brenda Fletcher; (ii)
denied him his Sixth Amendment right to compulsory process by
refusing to issue writs compelling his co-defendants’ testimony at
the suppression hearing; (iii) erred by refusing to issue a
multiple conspiracy instruction to the jury on Count One; and (iv)
denied him due process by using a preponderance of the evidence
standard to determine his base offense level under the U.S.
Sentencing Guidelines. We affirm Fletcher’s convictions and
sentence.
We conclude the district court correctly denied
Fletcher’s motion to suppress. The district court correctly found
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Fletcher lacked standing to assert an expectation of privacy in the
first vehicle stopped by police because he did not establish a
property or possessory interest in the Mercedes driven by Brenda
Fletcher. See Rakas v. Illinois, 439 U.S. 128, 148 (1978).
Even if Fletcher did have standing to assert an expectation of
privacy in the Mercedes, the court correctly found the searches
were lawful. Police listened to a wiretap on Fletcher’s cell phone
for some time and knew he was involved in significant drug
trafficking. On the day of the traffic stop, police overheard
Fletcher instruct an acquaintance to dispose of a weapon that was
used in a shooting the previous evening. When a Mercedes was seen
leaving the acquaintance’s location only moments after the
instruction was given, we find it was reasonable for police to
believe that the gun was located in the Mercedes and was about to
be transported for disposal. Accordingly, these circumstances were
sufficient to cause a reasonable person to believe that “criminal
activity was afoot.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000).
Since Fletcher’s only challenge to the lawfulness of
Brenda Fletcher’s second traffic stop is dependent upon the
lawfulness of the first traffic stop, we conclude the second stop
of Brenda Fletcher--when police knew she was driving on a suspended
license--was lawful as well. Accordingly, we find the district
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court correctly denied Fletcher’s motion to suppress evidence
seized from the traffic stops.
Fletcher also argues the district court erred in refusing
to issue writs compelling his co-defendants’ testimony at the
suppression hearing because Fletcher needed their testimony to
establish the co-defendants’ signed statements were not obtained by
undue influence. Fletcher’s argument that the district court erred
in refusing to issue writs compelling his co-defendants’ testimony
at the suppression hearing is meritless.
First, Fletcher never informed the district court he
needed his co-defendants to testify to establish the statements
were not obtained by undue influence. Rather, Fletcher only
informed the district court he wanted his co-defendants to testify
that their signatures were authentic. At the suppression hearing,
however, the Government stipulated that the signatures were
authentic, thereby rendering Fletcher’s motion moot. Cf. United
States v. Espinoza, 641 F.2d 153, 159 (4th Cir. 1981) (holding that
a district court does not abuse its discretion in failing to grant
a defendant's request to subpoena witnesses whose testimony would
merely be cumulative); United States v. Bales, 813 F.2d 1289, 1296
(4th Cir. 1987) (upholding district court’s refusal to issue writ
compelling trial testimony where witness was already questioned by
defense counsel during suppression hearing). Moreover, because
Fletcher did not raise the undue influence argument before the
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district court, he may not do so for the first time on appeal.
See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
In any event, the district court made clear to Fletcher’s
counsel it would not issue writs for the co-defendants’ testimony
unless Fletcher’s counsel could represent that the witnesses were
not going to invoke their Fifth Amendment right against self-
incrimination if brought in to testify. Because Fletcher’s counsel
had not obtained assurances from the co-defendants’ attorneys that
their clients would not invoke the Fifth Amendment, the district
court refused to issue writs compelling the witnesses’ testimony.
Since Fletcher failed to establish his co-defendants would give
testimony “both material and favorable to his defense,” see United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), we conclude
the district court correctly denied Fletcher’s motion to issue the
writs.
We also conclude Fletcher was not entitled to a multiple
conspiracy instruction. A multiple conspiracy charge is required
only when “the proof at trial demonstrates that [the defendants
were] involved only in separate conspiracies unrelated to the
overall conspiracy charged in the indictment.” United States v.
Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (emphasis in
original). “A single conspiracy exists where there is one overall
agreement, or one general business venture. Whether there is a
single conspiracy or multiple conspiracies depends upon the overlap
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of key actors, methods, and goals.” United States v. Leavis, 853
F.2d 215, 218 (4th Cir. 1988) (internal citations and quotation
marks omitted). Since the evidence at trial established Fletcher
continued on in the drug distribution conspiracy even after he sold
the house and “business” to his nephew, we conclude the district
court properly denied Fletcher’s request for a multiple conspiracy
instruction. See Squillacote, 221 F.3d at 574-75.
Finally, Fletcher argues the district court denied him
due process of law when it adopted the factual findings regarding
drug quantity outlined in Fletcher’s presentence investigation
report utilizing a “preponderance of the evidence” standard.
Contrary to Fletcher’s argument, even after United States v.
Booker, 543 U.S. 220 (2005), a district court may properly make
factual findings concerning sentencing factors by a preponderance
of the evidence. See United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005). Fletcher does not otherwise argue his sentence is
unreasonable.
Accordingly, we affirm Fletcher’s convictions 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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