United States v. Steven B. Pherigo ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3556
___________
United States of America, *
*
Appellee, *
*
v. *
*
Steven B. Pherigo, *
*
Appellant. *
___________ Appeals from the United States
District Court for the
No. 01-3885 Eastern District of Missouri.
___________
United States of America, *
*
Appellee, *
*
v. *
*
William Piercefield, *
*
Appellant. *
___________
No. 01-3887
___________
United States of America, *
*
Appellee, *
*
v. *
*
William F. Gilyard, *
*
Appellant. *
___________
Submitted: November 6, 2002
Filed: May 5, 2003
___________
Before HANSEN,1 Chief Judge, BEAM and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
William Gilyard, William Piercefield, and Steven Pherigo were indicted for
possession with the intent to distribute over five grams of cocaine base, a violation
of 21 U.S.C. § 841(a)(1). Pherigo entered a guilty plea and was sentenced to 120
months’ imprisonment. A jury found both Gilyard and Piercefield guilty of the
charge. Gilyard was sentenced to 276 months’ imprisonment, and Piercefield received
1
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
-2-
a ninety-seven-month sentence. All three defendants appeal, urging a variety of
grounds for reversal. Gilyard and Piercefield seek new trials. Piercefield, along with
Pherigo, also seeks resentencing. We believe their arguments are without merit and
affirm the district court.2
I.
Background
The events that gave rise to this case began in January of 2001, when the
Maryland Heights Police Department arrested Charles Owen while he was smoking
crack in his automobile. He informed the officers that he had purchased the crack two
hours earlier from Pherigo. According to Owen, Pherigo acquired the crack from
Gilyard for $80. Pherigo and Owen met Gilyard at a designated location, paid him,
and received about two grams of crack. Pherigo kept about half of the crack and gave
the remaining portion to Owen.
After his arrest, Owen agreed to lead the police to the source of the controlled
substance. The investigation was dormant until March, when Owen received a call
from Pherigo, who expressed his concern that Owen might be purchasing his cocaine
from someone else. On March 29, 2001, Owen contacted Pherigo–under the direction
of the police–and agreed to buy two ounces of crack from Pherigo. It was agreed that
Pherigo would first acquire the crack from Gilyard and then deliver it to Owen later
in the day at a Mobil Mart gas station.
En route to the Mobil station, at approximately 4:30 p.m., according to Owen’s
testimony, he engaged in a three-way cell-phone call with Pherigo and Gilyard.
During the conversation Gilyard sought an assurance that “it was a real deal and not
just to mess him up . . . he didn’t want to have it available and get it ready if it wasn’t
2
The Honorable Stephen N. Limbaugh, United States District Judge for
the Eastern District of Missouri.
-3-
going to happen.” According to phone records, Gilyard placed a second call to Owen
around 5:00 p.m. Shortly thereafter, Pherigo arrived–in a vehicle driven by
Piercefield–at the designated drop site. After Pherigo transferred the cocaine to
Owen, Pherigo and Piercefield were arrested, and the police seized Pherigo’s pager.
Meanwhile, Owen placed a call to Gilyard–at the request of the police–stating that the
amount of crack delivered to Pherigo was “short.” Gilyard denied to Owen that he
had provided Pherigo the lesser amount and stated that he would attempt to reach
Pherigo. Moments after Gilyard’s statement, Pherigo’s pager–which was on a table
at the police station–rang showing Gilyard’s number. Other calls followed, and on
April 11, 2001, Gilyard was arrested.
II.
Pretrial Issues
A. Motion to Sever
First, Piercefield argues that his case should have been severed from Gilyard’s
case. He argues that the court erred in its determination that he would not suffer
undue prejudice by trial with his codefendants, noting that he–unlike Gilyard and
Pherigo–had no record of convictions or even charges; that he was not acquainted
with Gilyard; and that “a good portion of the evidence” involved only Gilyard and
Pherigo–including beepers, telephone log books, apartment keys, utility bills, pictures
of crack cocaine, physical evidence of crack cocaine, torn-up drug notes, weights,
scales, safes, cell phones and tape-recorded conversations “that do not even mention
William Piercefield.” Therefore, Piercefield maintains that “because he was tried with
a career drug criminal and a mid-level crack supplier,” the jury would not be able to
compartmentalize evidence against each defendant. See United States v. Akers, 987
F.3d 507, 511 (8th Cir. 1993). However, the district court rejected this argument and
denied Piercefield's motion.
A denial of a motion to sever will not be reversed unless clear prejudice and
an abuse of discretion are shown. United States v. Washington, 318 F.3d 845, 858
-4-
(8th Cir. 2003). In a ruling on a motion for severance, a court must weigh the
inconvenience and expense of separate trials against the prejudice resulting from a
joint trial of codefendants. United States v. Brim, 630 F.2d 1307, 1310 (8th Cir.
1980). To grant a motion for severance, the necessary prejudice must be “severe or
compelling.” United States v. Warfield, 97 F.3d 1014, 1018 (8th Cir. 1996). This is
because “a joint trial gives the jury the best perspective on all of the evidence and,
therefore, increases the likelihood of a correct outcome.” United States v. Darden, 70
F.3d 1507, 1528 (8th Cir. 1995). In our consideration of the jury’s ability to
compartmentalize the evidence against the joint defendants, we consider 1) the
complexity of the case; 2) if one or more of the defendants were acquitted; and 3) the
adequacy of admonitions and instructions by the trial judge. See United States v.
Miller, 725 F.2d 462, 468 (8th Cir. 1984).
Piercefield concedes that this was neither a complex nor prolonged case. He
argues instead that 1) the fact both defendants were found guilty is proof that the jury
was unable to compartmentalize the evidence and 2) the trial judge failed to admonish
the jury strongly enough. However, both arguments are unavailing. The separate
evidence against Piercefield–notably the handwritten confession3 that he penned–is
adequate to explain the jury’s guilty verdict. And, not only did the trial judge
admonish the jury as evidence was being presented, he also gave an instruction that
directed the jury not to consider certain evidence as it related to Piercefield. Hence,
because the evidence against the codefendants was properly compartmentalized by
3
In the letter, Piercefield admitted that he drove Pherigo to deliver the “dope”
and had full knowledge of what he was doing. In his handwritten confession, he
stated: “Steve received a page and asked me if I would give him a ride to meet a
buddy. I was to receive some crack for doing this favor. I drove him to a Mobil
station by Earth City Expressway where I was soon escorted to the police station. As
an average, I might receive approximately $20 to $50 dollars worth of crack for
driving or dropping him off somewhere when [sic] drive Steve places [sic] is to
deliver or drop off crack.”
-5-
the jury and the trial court aptly admonished the jury, the motion to sever was
properly denied.
B. Phone Records
Next, Gilyard argues that the district court erred by refusing to exclude records
from Verizon Wireless showing service to his cell phone. These records were
produced by the Government on August 31, 2001, only four days before trial.4
Gilyard maintains that had he known that these records would be offered as evidence,
he would have performed other investigation that would have directly affected his
litigation strategy.5 The prosecutor explained that the late production6 was attributable
to the Drug Enforcement Agency (DEA), which had misplaced the records. The
prosecutor stated that he intended to use the phone records to establish that Gilyard
made phone calls to certain numbers and at certain times to support the Government’s
theory that Gilyard supplied the drugs delivered to Owen on March 29, 2001.
4
The trial began on September 4, 2001, the Tuesday after Labor Day.
5
At trial Gilyard testified in his own defense. The thrust of his testimony
was that while he admitted to being involved in drug-trafficking, he did not
participate in the March 29, 2001, transaction and, therefore, was not guilty of the
offense charged. Gilyard admitted that he was involved in all of the telephone calls
with Pherigo in reference to the two-ounce crack cocaine deal with Owen, and that
he had agreed to supply the cocaine. Gilyard also admitted making phone calls to
Owen. Further, he recalled calling Pherigo around noon on March 29, and
“constantly having a series of conversations with [Pherigo], sort of putting him off.”
He denied being a party to the alleged three-way conversation, but admitted that on
March 29 he called Owen at 5:00 p.m. and a minute later called Piercefield.
6
A magistrate judge had ordered that all pre-trial disclosure of evidence take
place by April 24, 2001. Gilyard requested pre-trial disclosure of evidence by letter
dated April 19, 2001.
-6-
We review for abuse of discretion the district court's decision whether to
exclude evidence to sanction a Government discovery violation. See United States v.
Davis, 244 F.3d 666, 670 (8th Cir. 2001). In our review we consider (1) whether the
Government acted in bad faith and the reason(s) for delay in production; (2) whether
there is any prejudice to the defendant; and (3) whether any lesser sanction is
appropriate to secure future Government compliance. United States v. DeCoteau, 186
F.3d 1008, 1010 (8th Cir. 2001).
In this case, neither party alleges bad faith. All evidence shows that the reason
for delay in production of the phone logs was the fact that the records had been
misplaced. Therefore, our inquiry must focus on the degree of prejudice Gilyard
suffered. Cf. United States v. Davis, 244 F.3d 666, 670 (8th Cir. 2001). First, with the
exception of the three-way call, Gilyard does not claim surprise in the content of the
records. Further, even the three-way call was not a complete surprise. That call was
noted in the discovery provided to Gilyard. Furthermore, the late receipt of the phone
records in no way prohibited Gilyard from subpoenaing Owen’s phone records.
Gilyard knew Owen’s phone number and could have subpoenaed Owen’s phone
records at anytime.
Moreover, the alleged prejudice that Gilyard claims to have suffered makes
little sense given Gilyard’s defense at trial. His defense was that Pherigo, not Owen,
procured the drugs from someone else. (Gilyard testified not once but at least five
times that Pherigo went behind his back and obtained the drugs from someone else.)
So, even if the disputed three-way call had not been made, it does nothing to destroy
Gilyard’s defense. Finally, Gilyard testified that he called both Owen and Pherigo at
5:00 and 5:01 p.m., about the same time as the three-way call. Thus, because Gilyard
suffered no prejudice from the tardy production, the district court’s decision is
affirmed.
-7-
III.
Trial Issues
A. Batson Challenge
Gilyard also argues that two black jurors were improperly struck from the jury
based upon their race in violation of Batson v. Kentucky, 476 U.S. 79, 96 (1986).
These two jurors were the only African-American panel members. One juror was
employed with United Parcel Service and the other was employed with Western
Union. The Government responded to the accusation of discriminatory motive by
arguing that the jurors were struck for reasons related to their employment. However,
the district court rejected Gilyard's Batson challenge.
We review the district court's ruling in a Batson challenge for clear error.
United States v. Campbell, 270 F.3d 702, 760 (8th Cir. 2001). Our inquiry is guided
by the well-established three-prong analysis of Batson. First, the opponent of the
peremptory challenge must establish a prima facie showing that the challenge is
discriminatory. Purkett v. Elem, 514 U.S. 765, 768 (1995). The proponent of the
peremptory challenge must then articulate a race-neutral explanation for the
challenge. If a race-neutral explanation is offered, the challenger must show that the
explanation is a pretext for discrimination.
The district court determined–by virtue of the fact that all of the potential
African-American jurors had been removed by the Government–that Gilyard had
established a prima facie case of discrimination.7 The Government responded that it
7
Although the number of African-Americans struck is relevant to
determining whether a defendant has made a prima facie case of discrimination under
Batson, that evidence alone is insufficient to negate or create such a case. Luckett v.
Kemna, 203 F.3d 1052, 1053–54 (8th Cir. 2000). However, once the government has
proffered a non-discriminatory reason for removal, any deficiency in the defendant’s
prima facie case is rendered moot. Devoil-El v. Groose, 160 F.3d 1184, 1186 (8th Cir.
1998).
-8-
struck the jurors based on the nature of their employment, which allegedly afforded
them additional insight into the drug industry. See United States v. Atkins, 25 F.3d
1401, 1406 (8th Cir. 1994) (“We have consistently allowed the government to use
employment status as a valid, race-neutral proxy for juror selection, so long as the
government exercises its challenges in a consistent manner.”).
Like the district court, we are troubled by the fact that the Government did not
ask the jurors about their employment prior to making the questionable strikes.
However, we are satisfied with the district court’s inquiry as to the Government’s
reason for striking; it questioned the Government about these strikes and found its
responses credible. The “‘evaluation of the prosecutor’s state of mind based on
demeanor and credibility lies ‘peculiarly within a trial judge’s province.’” United
States v. Feemster, 98 F.3d 1089, 1092 (8th Cir. 1996). We are required to afford the
district court a great amount of deference in its pretext determination. Thus, we
conclude that the district court correctly observed that employment is a race-neutral
ground for the exercise of a peremptory challenge and that the court did not clearly
err in finding that the reason stated was not merely pretextual.
B. Limiting Instruction
Next, Piercefield contends that his trial counsel was ineffective when his
counsel failed to request a limiting instruction. This issue, however, is not properly
before us. Claims of ineffective assistance of counsel are properly raised in a post-
conviction motion under 28 U.S.C. § 2255 and not on direct appeal. United States v.
Evans, 272 F.3d 1069 (8th Cir. 2001). Accordingly, we will not address the merits of
Piercefield’s ineffective assistance of counsel claim.
IV.
Post-Trial Issues
Piercefield also argues that his trial counsel was ineffective for failing to
request a minor or minimal participant reduction under the Sentencing Guidelines. He
-9-
argues that there is no legitimate strategic reason why counsel would fail to request
a reduction. Acknowledging our preference to not hear ineffective assistance of
counsel claims on direct appeal, Piercefield invites us to reconsider our position,
noting that there is no reason for him to endure a post-conviction hearing when the
same result can be reached by an immediate remand for resentencing.
We decline Piercefield’s invitation and state our oft repeated refrain–claims of
ineffective assistance of counsel are best evaluated on facts developed outside of the
record on direct appeal and are properly raised in a post-conviction motion under 28
U.S.C. § 2255 and not on direct appeal. Id; United States v. Martin, 274 F.3d 1208(8th Cir. 2001).
Finally, Pherigo argues that the district court made a sentencing error. We
review de novo the application of a sentencing enhancement when it turns on a
question of statutory interpretation. See United States v. Collins, 321 F.3d 691, 696
(8th Cir. 2003). The district court enhanced Pherigo’s sentence based on a prior state-
felony conviction. Title 21 U.S.C. § 851 provides that anyone who violates a section
of this Title and has previously committed a felony drug offense, must be sentenced
to at least ten years in prison. Pherigo argues that the enhancement under § 851 was
in error because the state felony was more than ten years old.
However, § 851 is silent as to whether the age of a prior conviction should be
considered. The only time constraint addressed in § 851 is the limitation on a
defendant’s ability to challenge a conviction. See 21 U.S.C. § 851(e) (precluding
challenges to prior convictions “which occurred more than 5 years before the date of
the information alleging such prior convictions”). Pherigo argues that because the
statute is silent, the rule of lenity should be invoked. However, the rule of lenity is a
canon of statutory construction that is used when there is an ambiguity in the wording
of the statute. Here, no such ambiguity exists. Thus, his argument is misplaced and
without merit.
-10-
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-11-