United States v. Percy Tucker ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4914
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERCY JAMES TUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda Wright Allen, District
Judge. (2:09-cr-00182-AWA-DEM-1)
Submitted: June 19, 2013 Decided: August 9, 2013
Before TRAXLER, Chief Judge, and GREGORY and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Maureen Leigh White, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia; Sherrie
S. Capotosto, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Percy James Tucker filed this appeal challenging
his conviction for conspiracy to distribute and possess cocaine
and marijuana, money laundering, and other related charges.
Tucker argues that the district court erred both when it denied
his motion for judgment of acquittal 1 on each of eleven counts
and when it denied his motion to proceed pro se. Finding no
error, we affirm.
I.
A.
Defendant Percy Tucker has been involved in the trucking
business since 1990. In the early 2000s, Tucker set up and
managed trucking companies for several individuals, including
Jovan Hassell, David Bragg, and Randolph Person. Hassell,
Bragg, and Person testified at trial that Tucker knew of their
involvement in the drug trade. After Tucker set up these
trucking businesses and assisted in the purchase of tractor
trailers, he created false liens that allowed the owners to
1
Tucker’s appeal is framed as a challenge to the district
court’s denial of a “directed verdict of acquittal.” The
Federal Rules of Criminal Procedure state that “[m]otions for
directed verdict are abolished and motions for judgment of
acquittal shall be used in their place.” Fed. R. Crim. P.
29(a). We therefore construe Tucker’s appeal as a challenge to
the denial of his motions for judgment of acquittal.
2
avoid forfeiture in the event they were arrested for dealing in
narcotics. In 2004, Tucker incorporated MidAtlantic
Commodities, which leased a warehouse in Virginia Beach where
the tractor trailers were loaded and unloaded. Although Hassell
and Bragg paid the rent, Tucker’s name was on the warehouse
lease.
Hassell and Bragg testified that they transported at least
ten kilograms of cocaine each week from Atlanta to Virginia from
2001 until 2009. Beginning in approximately 2006, they began to
transport cocaine using the trucking companies and warehouse.
Typically, Hassell and Bragg hid money inside the spare tires of
rented SUVs and then loaded the SUVs into tractor trailers at
the warehouse. Hassell explained that they would take the tire
from the bottom of the truck, pop it open, stuff money inside,
re-seal and re-inflate it, and then place it back underneath the
SUV. Once in Atlanta, they would take the money out of the tire
and replace it with the cocaine they purchased from their
supplier. After returning to the warehouse, buyers would go to
the warehouse to purchase cocaine that had been broken down into
smaller quantities. One associate, Kimani Lewis, testified that
there were money machines, scales, and baggies in the warehouse
for breaking the drugs into smaller amounts. Hassell affirmed
that on numerous occasions, Tucker was present in the warehouse
while drug operations were being conducted. There was no
3
testimony presented at trial, however, establishing that Tucker
ever actually saw drugs being handled at the warehouse.
Hassell and Bragg both testified that in 2006, Tucker began
to personally transport money and drugs. In one instance,
Hassell asked Tucker to drive him to Atlanta to complete a deal.
Tucker drove the truck to a Wal-Mart parking lot. Hassell then
took the money he had hidden in a suitcase beneath the bed of
the tractor trailer and handed it to his supplier. After his
supplier took the money out of the suitcase, Hassell placed the
cocaine he had purchased into the suitcase and returned the
suitcase to its hiding place. Tucker then drove the truck with
the drugs back to Virginia. Again, there was no direct evidence
presented that Tucker viewed the drugs being placed into the
suitcase or onto the truck he was driving. However, Hassell and
Bragg also described another drug deal involving the purchase of
a large quantity of marijuana from Texas. Testimony at trial
indicated that Tucker hid the marijuana inside thrift store
furniture, loaded it onto a truck, and then hired someone to
drive the truck from Texas to Virginia.
Tucker also supported Hassell and Bragg’s drug operation in
other ways. In 2003, North Carolina police pulled Bragg over
and seized over $49,000 in cash he was carrying to make a
cocaine purchase. Bragg testified that he paid Tucker $15,000
to retrieve the money. Tucker called the police officer who
4
made the seizure and told the officer that the money was
intended for the purchase of a tractor trailer. Later, Tucker
created fake loan documents, which he presented at a forfeiture
hearing in a federal court in North Carolina. Ultimately,
Tucker received a check for the amount of money that had been
seized, which he placed in Bragg’s account after claiming his
$15,000 payment.
Tucker also helped Person avoid police seizure of proceeds
from narcotics sales. Person testified that he used a friend’s
house in Chesapeake, Virginia to cook powder cocaine into crack
cocaine. At one point, he invited Tucker to come to the house
to complete a business transaction. While Tucker sat and
waited, Person finished cooking a nine-ounce batch of powder
cocaine into crack cocaine in plain view of Tucker. About two
weeks after Tucker’s visit, Person was arrested. After Person
was released on bond, he told Bragg and Tucker that the police
were going to seize his bank accounts. Tucker hatched a plan to
avoid the seizure. Person wrote Tucker a $22,000 check which
Tucker cashed at a nearby SunTrust Bank branch. Tucker returned
with $9,000 cash and a $13,000 cashier’s check. He told Person
that the bank did not have the full $22,000 cash on hand and
that he would find another way to cash out the remaining money
to give to Person. However, Person never received any
additional money from Tucker.
5
In 2005, Hassell and Bragg attempted to purchase “Bada
Bing” nightclub in Virginia Beach. However, after learning that
Hassell and Bragg were felons, the owner refused to sell the
club because felons would not be able to obtain a Virginia
liquor license. Hassell and Bragg testified that they offered
Tucker money to act as the “front man.” Tucker agreed and was
able to purchase the club in his name and take out a liquor
license. To disguise the source of the funds used to make the
down payment on the nightclub, Tucker arranged to have a third
person, James Hunter, wire Hassell and Bragg’s narcotics-derived
cash to the MidAtlantic Commodities bank account. Hassell and
Bragg paid Tucker to assist in the wire transfer and purchase of
Bada Bing nightclub, and to remain as the front man while they
operated the business.
B.
Upon his arrest in September 2009, the court appointed
attorney John C. Gardener to represent Tucker. In November
2009, Tucker submitted a letter motion to the district court
requesting that a new attorney be assigned to him. After
Gardener’s replacement, David Bouchard, withdrew due to a
conflict of interest, the court appointed a third attorney to
represent Tucker, Jon M. Babineau.
In May 2011, Tucker pled guilty to conspiracy to commit
money laundering. However, in July 2011, two weeks before
6
sentencing, Tucker filed another motion for new counsel and also
moved to withdraw his plea. The court granted both motions and
set trial for December 2011. Jennifer T. Stanton was appointed
as Tucker’s fourth attorney.
On October 6, 2011, Tucker filed yet another motion for new
counsel. The court held a hearing to consider the motion on
October 13, 2011. At the hearing, Tucker expressed his
frustration with Ms. Stanton’s refusal to file certain motions
he urged her to file. The court explained that the motions
Tucker sought to file were frivolous, and that Ms. Stanton was
under an obligation not to file frivolous motions. Tucker
further explained that he wanted to part ways with Ms. Stanton
because he did not feel she adequately reviewed his case, and
because “females have their method of doing things and I can’t
change that.” Finally, Tucker asked to proceed pro se if the
court did not grant his motion for new counsel. After receiving
assurances from Ms. Stanton that she was able to continue as
Tucker’s lawyer, the court denied Tucker’s motion for new
counsel and directed Ms. Stanton and the Government to brief
whether Tucker should be able to proceed pro se.
On November 8, 2011, the court held a hearing on Tucker’s
motion to proceed pro se. The court asked Tucker a series of
questions to gauge his understanding of the charges and
applicable sentencing guidelines for each count against him, the
7
trial process, and the Federal Rules of Evidence and Federal
Rules of Criminal Procedure. Tucker’s answers showed that he
misunderstood the penalties he faced if convicted, had no
experience with the trial process and did not understand the
Federal Rules of Evidence or Federal Rules of Criminal
Procedure. Tucker also explained that if he were to proceed pro
se, he would need additional time to prepare for trial. In a
written order dated November 14, 2011, the court denied Tucker’s
motion to proceed pro se.
On December 6, 2011, the day before trial was set to begin,
Tucker entered into a second plea agreement. The court deferred
acceptance of the plea agreement pending preparation of a
presentence report and set sentencing for April 27, 2012.
Sentencing was subsequently moved to June 21, 2012, after the
court granted Tucker’s motion for a continuance. Three days
before sentencing, Tucker moved to withdraw his second guilty
plea. The court, which had yet to accept and enter the plea,
granted the motion to withdraw.
On August 14, 2012, a jury found Tucker guilty on each of
the eleven counts remaining in the thirteen-count superseding
8
indictment. 2 Tucker filed a timely appeal of which we have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Tucker argues on appeal that the evidence presented at
trial was not sufficient to sustain a conviction on any of the
counts charged in the superseding indictment and that the
district court therefore erred when it denied his motion for
judgment of acquittal.
We review a district court’s denial of a motion for
judgment of acquittal de novo. United States v. Green, 599 F.3d
360, 367 (4th Cir. 2010). Where there is a challenge to the
sufficiency of the evidence, as there is here, we must sustain
2
Two counts in the superseding indictment had been
dismissed. Tucker was found guilty of: conspiracy to
distribute and possess with intent to distribute five kilograms
or more of cocaine and fifty kilograms or more of marijuana in
violation of 21 U.S.C. § 846; conspiracy to launder money in
violation of 18 U.S.C. §§ 1956(h); possession with intent to
distribute five kilograms or more of cocaine in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2; three counts of interstate
travel in aid of racketeering in violation of 18 U.S.C. §
1952(a)(3) and 18 U.S.C. § 2; possession with intent to
distribute approximately thirty pounds of marijuana in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession with
intent to distribute between 500 grams and five kilograms of
cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;
laundering of monetary instruments in violation of 18 U.S.C. §
1956 and 18 U.S.C. § 2; and engaging in a monetary transaction
in property derived from specified unlawful activity in
violation of 18 U.S.C. § 1957 and 18 U.S.C. § 2.
9
the jury verdict “if there is substantial evidence, taking the
view most favorable to the Government, to support [the
conviction].” United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc) (quoting United States v. Glasser, 315 U.S.
60, 80 (1942)). In other words, we must not embark on the task
of re-weighing the evidence or assessing the credibility of the
witnesses. United States v. Kelly, 510 F.3d 433, 440 (4th Cir.
2007). Instead, we assume that the jury has “resolved any
discrepancies in favor of the [G]overnment.” Id. Ultimately,
we must determine whether “any rational trier of facts could
have found the defendant guilty beyond a reasonable doubt.”
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Tucker’s challenge to his drug-related convictions centers
on his contention that the prosecution did not carry its burden
on the intent or knowledge element of each of the charges. 3
3
On the charge of conspiracy to distribute and possess with
intent to distribute cocaine and marijuana, the Government
carried the burden to prove that: “(1) an agreement to
distribute and possess cocaine with intent to distribute existed
between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily
became a part of this conspiracy.” United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008). On charges of possession
with intent to distribute, the Government carried the burden to
prove: (1) possession of the [narcotic]; (2) knowledge of this
possession; and (3) intention to distribute the [narcotic]. See
Burgos, 94 F.3d at 873. Possession may be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th
Cir. 1992). On charges of interstate travel in aid of
racketeering, the Government carried the burden to prove:
(Continued)
10
Specifically, he argues there was no evidence establishing that
he was aware that the trucking businesses he formed and
subsequently managed were being used to run drugs. For
instance, Tucker points out that when Hassell asked him to drive
to Atlanta to exchange money for drugs, Hassell only stated that
he was going to get “some things.” Further, while Hassell and
others testified at trial that Tucker was occasionally present
at the warehouse when drugs were being handled and hid, there
was no direct evidence that Tucker actually saw the drugs.
Tucker seeks to cherry pick from the evidence in an effort
to concoct a viable argument on appeal. The cumulative evidence
against him is not just sufficient, it is overwhelming. Several
of the Government’s witnesses testified that Tucker was aware of
their long-term involvement in drug trafficking, and that he set
up a variety of businesses to assist in their criminal
operations. The evidence also showed that Tucker took a direct
role in Hassell and Bragg’s illicit enterprise. Testimony from
Hassell and Bragg established that Tucker coordinated the
transport of large quantities of marijuana from Texas to the
(1) travel between states; (2) with the intent to promote,
manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of any unlawful
activity; and (3) performance or attempt to perform the unlawful
acts thereafter. 18 U.S.C. § 1952(a); see also United States v.
Hayes, 775 F.2d 1279, 1282 (4th Cir. 1985).
11
warehouse Tucker leased in Virginia under the name of
MidAtlantic Commodities. And, on more than one occasion, Tucker
himself drove large quantities of cocaine from Atlanta to the
warehouse in Virginia.
Tucker also found other creative ways to support his co-
conspirators. Just weeks after watching Person cook large
quantities of powder cocaine into crack cocaine, Tucker helped
Person hide money before police could seize his accounts. On
another occasion, Tucker fabricated documents and lied under
oath to secure the return of nearly $50,000 that had been seized
by North Carolina police when Bragg was en route to make a drug
purchase.
Cumulatively, this evidence is more than sufficient to
substantiate Tucker’s knowledge that he was intricately involved
in drug trafficking activities as charged. While there may not
be direct evidence that Tucker actually watched Hassell put
cocaine into the trailer of the truck he was driving, or that he
had explicit conversations with co-conspirators about how they
could use the various companies to hide their drug-related
operations, the jury had sufficient evidence to connect the
dots. It is well established that circumstantial evidence, not
just direct evidence, must be considered when assessing
sufficiency of the evidence. United States v. Grow, 394 F.2d
182, 201 (4th Cir. 1968). Indeed, “circumstantial evidence is
12
treated no differently than direct evidence,” and may itself be
sufficient to support the jury’s verdict. United States v.
Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989). It is clear here
that the combination of direct and circumstantial evidence is
such that a reasonable juror could have concluded that Tucker
was aware of his involvement in drug trafficking and was guilty
of the drug-related crimes as charged.
Tucker next argues that the Government presented
insufficient evidence to sustain a conviction of conspiracy to
launder money. The Government carried the burden to prove
beyond a reasonable doubt that: (1) a conspiracy to commit
money laundering was in existence; (2) during the conspiracy,
the defendant knew that the proceeds to be concealed had been
derived from an illegal activity, and (3) the defendant
knowingly joined in the conspiracy. See United States v.
Alerre, 430 F.3d 681, 693-94 (4th Cir. 2005) (stating the burden
of proof for conspiracy related to promotion money laundering);
United States v. Wemmering, 232 F. App’x 372, 374-75 (4th Cir.
2007) (unpublished) (equating the conspiracy standard for
promotion money laundering with concealment money laundering).
We find there was sufficient basis for the jury’s final
determination that Tucker had conspired to launder money. As
illustrated above, there was extensive testimony from Hassell,
Bragg, Person, and several other co-conspirators evidencing an
13
expansive collaborative drug operation. The group relied on
Tucker as a “front man” who could: assist in setting up
businesses that appeared legitimate, spend drug proceeds on
legitimate purchases, and reclaim or hide cash that had been or
might be seized by the police. As noted above, multiple
witnesses testified at trial that Tucker was well aware of their
involvement in the narcotics trade and that he knew that his
assistance would help them in carrying out their illicit
activities. The evidence presented at trial was sufficient to
support the jury’s verdict.
Finally, Tucker argues that no evidence was presented that
he had the requisite knowledge to substantiate a guilty verdict
on charges related to the purchase of Bada Bing nightclub. 4
4
These charges include laundering of monetary instruments
in violation of 18 U.S.C. § 1956 and 18 U.S.C. § 2, and engaging
in a monetary transaction in property derived from specified
unlawful activity in violation of 18 U.S.C. § 1957 and 18 U.S.C.
§ 2. On the laundering of monetary instruments charges, the
Government carried the burden to prove that the defendant:
(1) knew the property involved in a financial transaction
represented proceeds from an unlawful activity; (2) conducted or
attempted to conduct a financial transaction involving such
proceeds; (3) with the intent to promote the carrying on of the
specified unlawful activity or knowing that the transaction was
at least in part designed to conceal or disguise the nature,
location, source, ownership, or control of the proceeds. 18
U.S.C. § 1956(a)(1); United States v. Alford, 999 F.2d 818, 823
(5th Cir. 1993). On the charge of engaging in a monetary
transaction in property derived from a specified unlawful
activity, the Government carried the burden to prove that the
defendant “knowingly engage[d] . . . in a monetary transaction
in criminally derived property of a value greater than $10,000
(Continued)
14
Extensive testimony was presented at trial, however,
establishing that Tucker agreed to act as the front man so that
Hassell and Bragg could purchase the business and obtain a
liquor license. Further, multiple witnesses testified to
Tucker’s coordination of a wire transfer of at least $100,000 of
Hassell and Bragg’s narcotics-derived cash to the MidAtlantic
Commodities bank account. Likewise, there is testimony that the
wire transfer was designed to conceal the source of the funds
and to make it appear that the money used for the down payment
on Bada Bing nightclub came from profit earned at MidAtlantic
Commodities. The cumulative evidence presented provides
sufficient basis for the conclusion that Tucker was well aware
of his involvement in a drug-related scheme. The jury’s verdict
was adequately supported.
III.
Tucker next argues that the district court erred when it
denied his request to proceed at trial pro se. We review a
district court’s legal rulings on pro se representation de novo,
and [was] derived from specified unlawful activity” such as
narcotics distribution. 18 U.S.C. § 1957; see United States v.
Mansoori, 480 F.3d 514 (7th Cir. 2007) (applying 18 U.S.C.
§ 1957 to narcotics distribution proceeds).
15
and all findings of fact related to its ruling for clear error.
United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005).
The U.S. Supreme Court has stated that “forcing a lawyer
upon an unwilling defendant is contrary to his basic right to
defend himself if he truly wants to do so.” Faretta v.
California, 422 U.S. 806, 817 (1975). While a defendant’s
decision must be knowing and intelligent, his technical legal
knowledge is “not relevant to an assessment of his knowing
exercise of the right to defend himself.” Id. at 836. The
right to self-representation is not absolute, however. “The
government’s interest in ensuring the integrity and efficiency
of the trial at times outweighs the defendant’s interest in
acting as his own lawyer.” United States v. Bernard, 708 F.3d
583, 588 (4th Cir. 2013) (internal quotations omitted). As
such, a defendant’s assertion of his right to self-
representation must be: “(1) clear and unequivocal, (2)
knowing, intelligent and voluntary; and (3) timely.” United
States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000)
(internal citations omitted). A court may determine that an
assertion of the right to self-representation is not clear and
unequivocal where the defendant’s actions suggest a desire to
delay or manipulate the system more than a desire to self-
represent. Id. at 560.
16
 Here, the district court held that Tucker had not asserted
his right to counsel in a clear and unequivocal manner. The
court’s holding was based on a factual finding that Tucker’s
true motivation for proceeding pro se was to manipulate the
system and drag out an already long trial process while he
remained free on bond. Considering the record as a whole, as we
must, see United States v. Singleton, 107 F.3d 1091, 1097 (4th
Cir. 1997), we cannot conclude that the district court clearly
erred in arriving at its holding.
Tucker’s first motion to proceed pro se came alongside a
motion for new counsel. In fact, Tucker was on his fourth
attorney when he made the motion. He made clear during the
hearing that he sought new counsel, or in the alternative to
proceed pro se, because present counsel refused to file numerous
frivolous motions. A court is not required to grant a motion
for self-representation where the defendant’s motivation is to
file frivolous motions that appointed counsel would not file.
Frazier-El, 204 F.3d at 560; United States v. Mackovich, 209
F.3d 1227, 1237 (10th Cir. 2000). Given that Tucker had in fact
sought to file frivolous pro se motions, the district court did
not clearly err in making the findings that form the basis of
its conclusion here.
The district court also made a factual finding that Tucker
sought to delay his trial by proceeding pro se. A defendant is
17
not permitted to use the right to self-representation as a
“tactic for delay.” Bush, 404 F.3d at 272 (citing Mackovich,
209 F.3d at 1237. By repeatedly changing counsel and
withdrawing his first plea agreement just before sentencing,
Tucker had already extended his time on bond over two years.
During the hearing on his motion, he informed the court that he
would need even more time to prepare his defense if his motion
were granted. Given the procedural trajectory of the trial and
the repeated delays, we cannot find that the district court
clearly erred in holding that Tucker sought to proceed pro se
for the purpose of delaying his trial and remaining free on
bond. 5
IV.
For the reasons stated above, we affirm Tucker’s
convictions. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
5
The court made additional factual findings pertaining to
Tucker’s understanding of the law and judicial process. To the
extent that the court sought to gauge whether Tucker had
sufficient technical legal knowledge to exercise his right to
self-representation, it was legal error. See Faretta, 422 U.S.
at 836. However, we need not reach this issue because the
factual findings related to Tucker’s attempt at manipulating and
delaying the judicial process are independently sufficient to
affirm the district court’s denial of his motion to proceed pro
se.
18
before the Court and argument would not aid the decisional
process.
AFFIRMED
19