United States v. Demarcis L. March , 19 F. App'x 445 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-3344SI
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United States of America, *
* On Appeal from the United
Appellee, * States District Court
* for the Southern District
v. * of Iowa.
*
Demarcis L. March, * [Not To Be Published]
*
Appellant. *
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Submitted: September 4, 2001
Filed: September 20, 2001
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Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
Circuit Judges.
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PER CURIAM.
A jury found Demarcis March guilty of conspiring to distribute cocaine base and
possessing cocaine base with intent to distribute it, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and of using and carrying a firearm during and in relation to the
drug crimes, in violation of 18 U.S.C. § 924(c). After denying March’s motion for a
new trial, the District Court1 sentenced him to concurrent terms of twenty years (240
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
months) imprisonment on the drug offenses, and to a consecutive ten-year (120 months)
term of imprisonment on the firearm offense, upon finding that March had discharged
the gun during an incident related to the drug crimes. March appeals, and we affirm.
March was arrested on January 6, 1999, when law enforcement officials
executed a search warrant at a Davenport apartment rented by two of his cousins.
Police found crack cocaine in a bedroom closet where March had been hiding, a cell
phone and pager in March’s pocket, and, elsewhere in the apartment, a firearm and
ammunition, baggies, and a knife and razor blade with cocaine residue. Seven
cooperating witnesses who entered guilty pleas and testified in exchange for leniency
testified that March furnished them with resale quantities of crack. In particular,
Marqueis Lewis testified that he had sold between seven and eight kilograms of crack
cocaine for March, and that he and March routinely carried guns for protection. Edwin
Goodwin testified that he had seen March fire shots from his car at Ivan Clark to
retaliate against Clark for stealing drugs, and Clark provided corroborating testimony.
Another cooperating witness testified that he had introduced March to a supplier who
lived in Chicago, and that he and March had traveled to Chicago at least five times,
returning with at least one kilogram of crack cocaine each time. The government also
offered police testimony about the shooting incident, and ballistics evidence, which,
according to the government’s expert, showed that the bullets recovered from the scene
came from a firearm found in the Davenport apartment where March was arrested.
According to Lewis, the firearm belonged to March.
In keeping with an in limine ruling, the witnesses did not refer to “gangs,” with
two exceptions: (1) police officer William Hurt testified that he was currently assigned
to a “gang unit,” subsequently clarifying that he had been assigned to the “vice unit”
in January 1999; and (2) cooperating witness Marvin McDowell characterized one of
his prior convictions as “gang participation.” In addition, during voir dire (which was
not transcribed), the government apparently introduced its case agent as a member of
a “gang” task force unit.
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On appeal, March’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), challenging the sufficiency of the evidence, the denial of March’s
motion for a new trial based on references to “gangs” in violation of the in limine
ruling, and the finding at sentencing that March had discharged a firearm. In his pro
se supplemental pleadings March contends: (1) an in-chambers meeting, during which
Officer Hurt was questioned as to why he had violated the in limine ruling, and during
which March was not present, violated March’s right to be present at every critical
stage of his trial; (2) his drug and firearm sentences violated Apprendi v. New Jersey,
530 U.S. 466 (2000), and Castillo v. United States, 530 U.S. 120 (2000); (3) the
government’s practice of housing witnesses together allowed them to “get their stories
straight,” and they unlawfully accepted something of value in exchange for their
testimony; (4) an aggravating-role enhancement was clearly erroneous; (5) several
witnesses impermissibly testified about uncharged criminal acts, in violation of Federal
Rule of Evidence 404(b); (6) the government failed to prove that the cocaine base was
crack, and impermissibly vouched for witnesses during closing argument; and (7) his
counsel was ineffective.
Having reviewed the record, we find sufficient evidence to sustain March’s
convictions. We also conclude that the District Court did not abuse its discretion in
denying March’s request for a new trial upon finding that the isolated “gang”
references did not prejudice him, see United States v. Beeks, 224 F.3d 741, 745-48
(8th Cir. 2000) (standard of review; factors determining whether misconduct warranted
mistrial); and the Court did not clearly err in finding that March discharged a firearm
while carrying it in connection with the charged drug offenses.
Turning to March’s pro se arguments, we reject his contention that he was
denied his right to be present during a critical stage when the District Court inquired
in chambers as to whether Officer Hurt had been properly instructed to abide by the in
limine ruling. Cf. Fed. R. Crim. P. 43(c)(3) (defendant’s presence not required “when
the proceeding involves only a conference or hearing upon a question of law”). March
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was sentenced within the statutory maximum for his drug crimes without reference to
drug quantity, so there was no Apprendi violation. See 21 U.S.C.
§ 841(b)(1)(C); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.),
cert. denied, 531 U.S. 1026 (2000). The District Court also considered and correctly
applied controlling precedent in concluding that an enhancement under 18 U.S.C. §
924(c)(1)(A)(iii) for discharging a firearm during and in relation to a drug-trafficking
crime, even though “discharging” was not alleged in the indictment and decided by the
jury, remained permissible after Castillo. See United States v. Carlson, 217 F.3d 986,
987-989 (8th Cir. 2000) (distinguishing Castillo and holding that § 924(c)(1)(A)(i)-(iii)
involves single criminal offense with sentencing enhancement provisions, instead of
multiple distinct offenses), cert. denied, 121 S. Ct. 822 (2001).
As to March’s other arguments, he is incorrect in asserting that the government,
by entering into plea agreements, bribed its witnesses within the meaning of 18 U.S.C.
§ 201(c)(3), and his contention, raised for the first time on appeal, that the government
encouraged its witnesses to lie by housing them together is frivolous. Further, the
aggravated-role enhancement did not affect March’s sentence and thus need not be
considered.
As to the testimony about uncharged acts, March’s counsel did not object, and
we find no plain error. The acts were probative of March’s knowledge and intent and
were similar in kind and close in time to the crimes charged. See Fed. R. Evid. 404(b);
United States v. Franklin, 250 F.3d 653, 658 (8th Cir. 2001). Also, the government
offered evidence, through cooperating witnesses, that the cocaine base was crack
cocaine, see United States v. Brown, 156 F.3d 813, 816 (8th Cir. 1998) (noting
individuals who regularly sell crack are among most knowledgeable experts on it), and
defense counsel declined a curative instruction after the government arguably vouched
for witnesses during closing argument. Finally, March’s other arguments concerning
counsel’s ineffectiveness would be more properly raised in a 28 U.S.C. § 2255 motion.
See United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994).
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Having reviewed the case under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
affirm the judgment of the District Court.
We deny counsel’s motion to withdraw. The Apprendi argument as to Count III
is not frivolous. March’s motion for new counsel is also denied.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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