United States v. Dorlouis ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4329
PHILIPPE DORLOUIS, a/k/a Terrance,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4330
JACQUES PAUL, a/k/a Earl Phillip,
a/k/a "E",
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4331
MARC CHARLES, a/k/a "K", a/k/a
Carlo Pierre,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4332
NAJAC PAUL, a/k/a Joseph Derrick,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4333
SALLIE SCHULTZ,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-95-145)
Argued: November 1, 1996
Decided: February 24, 1997
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
HARVEY, Senior United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Harvey wrote the opin-
ion, in which Judge Murnaghan and Judge Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: Michelle Marie Memena Price, KING, ALLEN &
GUTHRIE, Charleston, West Virginia, for Appellants. Philip Judson
Combs, Assistant United States Attorney, Charleston, West Virginia,
for Appellee. ON BRIEF: Michael R. Cline, MICHAEL R. CLINE
LAW OFFICES, Charleston, West Virginia, for Appellant Dorlouis;
Christopher J. Heavens, HEAVENS LAW OFFICES, Charleston,
West Virginia, for Appellant Charles; Douglas Miller, Sr., Institute,
West Virginia, for Appellant Paul; Andrew A. Raptis, Charleston,
2
West Virginia, for Appellant Schultz. Rebecca A. Betts, United States
Attorney, Miller B. Bushong, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
_________________________________________________________________
OPINION
HARVEY, Senior District Judge:
The five appellants bringing this appeal were convicted by a jury
of conspiring to distribute crack cocaine and of related offenses. They
here challenge their convictions on numerous grounds. Additionally,
appellant Najac Paul appeals the sentence he received. Because we
conclude that all five appellants were properly arrested, charged and
convicted and that their other assignments of error are without merit,
we affirm their convictions. We also affirm the sentence received by
appellant Najac Paul.
I
In mid-July of 1995, Yvonne Renee Moore met appellant Sallie
Schultz while Moore was working as a prostitute for Annie's Escort
Service in Charleston, West Virginia. Moore told Schultz that she
wanted to make some extra money. Schultz then arranged for Moore
to meet appellants Philippe Dorlouis and Najac Paul who came to
Moore's apartment in a housing project in mid-August of 1995. Dor-
louis and Najac Paul gave Moore a half ounce of crack cocaine to sell.
Moore was to sell twenty-one "rocks" for $40 and was to repay $700
to these appellants, retaining $140 for herself. An admitted crack
addict, Moore smoked some of the cocaine and lost the rest. Fearing
that Dorlouis and Najac Paul would injure her if she did not pay what
she owed them, Moore on August 28, 1995 contacted Charleston
police officer William Hart, a member of the city's Metropolitan
Drug Enforcement Network Team ("MDENT"). Moore agreed to
work for this law enforcement agency as a confidential informant.
Moore was given $700 in marked money to pay her debt. After
Moore had telephoned them, appellants Jacques Paul and Marc
Charles and also appellant Schultz met with Moore at her apartment
3
on the afternoon of August 29, 1995. Her telephone calls were moni-
tored and recorded by MDENT officers. Moore paid Jacques Paul and
Charles the $700 she owed for the crack given to her the prior week.
Charles then gave Moore an additional bag containing 2.89 grams of
crack and told her that she could pay him $275 later. Moore told
Charles and Jacques Paul that she had a buyer for one ounce of crack.
Charles informed her that this would cost approximately $1,550.
After her meeting with these three appellants, Moore met with offi-
cers of MDENT and gave them the 2.89 grams of crack which she
had received from Charles.
Later that same day, Moore returned to the MDENT office and cal-
led the pager number given to her. Charles returned her call around
9:00 p.m. and told her that the ounce of crack was available for
$1,550. The officers fitted Moore with a body wire and provided her
with $1,600 in marked money. At approximately 11:20 p.m., a sur-
veillance team observed a 1992 Nissan Pathfinder, occupied by four
black males, arrive at the housing project where Moore lived. Two of
the individuals remained in the vehicle and two walked into the hous-
ing project. In her apartment, Moore met with Najac Paul and Dor-
louis, who sold her 25.6 grams of crack for $1,600. Najac Paul and
Dorlouis then left Moore's apartment with the money and got into the
Pathfinder. Moore left her apartment, met with Officer Hart and gave
him the 25.6 grams of crack which had been sold to her.
Shortly thereafter, the Nissan Pathfinder was stopped by officers on
the Patrick Street Bridge in Charleston. At the time of the stop, Dor-
louis was driving and Jacques Paul, Najac Paul and Charles were in
the vehicle. These four appellants were arrested and searched, as was
the vehicle. Jacques Paul was found to have in his pants pocket a bag-
gie containing 6.46 grams of crack. He was later asked to remove his
clothes, and $1,600 in marked money fell from his boxer shorts as he
was undressing. In the vehicle's console, the officers recovered $985.
Five Hundred Dollars of this sum was identified as being a part of the
$700 in recorded money which Moore had given to Jacques Paul and
Charles as a part of the earlier deal.
A superseding five-count indictment was later returned by a federal
grand jury. Count One charged all five appellants with a conspiracy
to distribute and possess with intent to distribute cocaine base, also
4
known as "crack," during the period from July of 1995 until August
29, 1995. Count Two charged Dorlouis, Najac Paul and Schultz with
aiding and abetting in the distribution of a quantity of crack, this
being the one-half ounce of crack initially fronted to Moore in mid-
August of 1995. Count Three charged Jacques Paul, Charles and
Schultz with aiding and abetting in the distribution of a quantity of
crack, this being the 2.89 grams of crack given to Moore in the after-
noon of August 29, 1995. Count Four charged Dorlouis, Jacques Paul,
Charles and Najac Paul with aiding and abetting in the distribution of
a quantity of crack, this being the 25.6 grams of crack sold to Moore
during the night of August 29, 1995 for $1,600. Count Five charged
Jacques Paul with possession of crack with intent to distribute, this
being the 6.46 grams of crack which were found in his pocket at the
time of his arrest a few minutes after midnight on August 30, 1995.
Numerous pretrial motions were filed by the appellants and were
denied by the district judge. In particular, motions to suppress evi-
dence seized from the Pathfinder and from Jacques Paul on August
30, 1995 were denied, as was the motion of Jacques Paul to dismiss
the superseding indictment on the ground that the Speedy Trial Act
had been violated. The trial was originally set for November 20, 1995,
but when Moore could not be located shortly before that date, the trial
was rescheduled for December 18, 1995. Following a four day trial,
the jury returned with verdicts of guilty as to each defendant on each
of the counts in which he or she was charged. Defendants then filed
a motion for a new trial, contending that Moore had committed per-
jury during her trial testimony. Following an evidentiary hearing, that
motion was denied by the district judge.
A sentencing hearing was later held, at which the court heard testi-
mony relating to relevant conduct of each of the appellants and the
quantity of drugs to be assessed against each. All five appellants
received lengthy sentences. Dorlouis was sentenced to a term of 121
months imprisonment, and Charles received 120 months. Jacques
Paul was sentenced to 97 months imprisonment, and Najac Paul was
sentenced to 168 months imprisonment. Schultz received a sentence
of 78 months. Substantial terms of supervised release were added to
the prison terms imposed by the district judge.
Appellants have timely filed these appeals.
5
II
All five appellants first argue that their right to due process of law
was violated when the superseding indictment failed to indicate the
specific quantity of crack involved in the various offenses. Counts
Two, Three, Four and Five all charged a violation of 21 U.S.C.
§ 841(a)(1). Following convictions of appellants under those Counts,
the sentences which might be imposed were subject to enhancement
pursuant to 21 U.S.C. § 841(b).
Counts Two, Three, Four and Five each charged offenses involving
the distribution of "a quantity of cocaine base, also known as ``crack'."
None of the Counts thus alleged the specific amounts of crack distrib-
uted by appellants. According to appellants, since the superseding
indictment failed to specifically allege the amount of crack involved,
their right to due process of law was violated because the indictment
failed to notify them that they would be subject to enhanced penalties
under § 841(b) if convicted. Whether an indictment must allege the
amount of crack involved is an issue of law which we review de novo.
United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, 116
S.Ct. 1890 (1996).
Appellants' due process argument overlooks the distinction be-
tween facts relevant to guilt and those that pertain to the severity of
punishment. Because the amount of the drugs goes only to the sen-
tence rather than to guilt, the quantity of drugs involved in an offense
is not a substantive element of the crime which must be charged and
proved at trial. United States v. Fletcher, 74 F.3d 49, 53 (4th Cir.)
cert. denied, 117 S.Ct. 157 (1996); cf. United States v. Kimberlin, 18
F.3d 1156, 1159 (4th Cir.), cert. denied , 114 S.Ct. 2178 (1994) (hold-
ing that the date specified in the indictment is not a substantive ele-
ment of the crime). To sustain a conviction under§ 841, the
government does not have to prove that any specific quantity of drugs
was involved because quantity is not a substantive element of the
crime. Fletcher, 74 F.3d at 53. The quantity of drugs is, however,
appropriately used as a factor in calculating the sentence. Id.Appellants' reliance on United States v. Alvarez , 735 F.2d 461(11th Cir. 1984), is misplaced. In Alvarez, the Eleventh Circuit
reversed the district court's imposition of an enhanced penalty where
6
the indictment did not specifically refer to the triggering amount of
narcotics involved. See id. at 467-68. However, Alvarez was a pre-
guidelines case and is no longer good law. In United States v. Perez,
960 F.2d 1569, 1574 (11th Cir. 1992), cert. denied, 507 U.S. 975(1993), the Eleventh Circuit specifically disavowed its prior Alvarez
ruling. See also United States v. Cross, 916 F.2d 622, 623 (11th Cir.
1990) (per curiam), cert. denied , 499 U.S. 929 (1991). In Perez, the
Court noted that the Cross court's departure from Alvarez was
explained by the Supreme Court's intervening ruling in McMillan v.
Pennsylvania, 477 U.S. 79, 84, 91 (1986).
We accordingly hold that appellants' due process rights were not
infringed when the superseding indictment did not specify the amount
of crack involved in the crimes alleged.
III
The original indictment was returned by the grand jury on Septem-
ber 19, 1995. When appellants were later arraigned, the trial was ini-
tially scheduled to commence on November 20, 1995. On October 20,
1995, appellant Dorlouis filed various pretrial motions. Thereafter,
other appellants filed similar motions. An initial hearing on pretrial
motions was held on November 1, 1995, and a second evidentiary
hearing on the motions was held on November 13, 1995.
Thereafter, because the government's key witness Moore could not
be located, the government moved for a continuance of the November
20, 1995 trial date. That motion was opposed by appellants. Follow-
ing a hearing, the district court granted the government's motion, and
the trial was eventually scheduled for December 18, 1995. After a
four day trial, the jury on December 22, 1995 returned verdicts of
guilty as to each appellant on each of the counts in which he or she
was charged.
Appellants' motion to dismiss the indictment because of a violation
of the Speedy Trial Act, 18 U.S.C. § 3161, et seq., was denied by the
court prior to the trial. Appellants now argue that the Speedy Trial
Act was violated because the trial was held more than seventy days
after the original indictment was returned. See 18 U.S.C. § 3161(h).
The question presented is whether the time between the filing by
7
appellants of their pretrial motions and the district court's decision on
the motions should be excluded from the computation of the seventy
day period. We review the district court's decisions regarding the
computation of time for abuse of discretion, United States v. Tinson,
23 F.3d 1010, 1012 (6th Cir. 1994), and we review the issue of delay
de novo. Han, 74 F.3d at 540.
18 U.S.C. § 3161(h)(1)(F) provides as follows:
The following periods of delay shall be excluded . .. in
computing the time within which the trial of any such
offense must commence:
* * *
(F) delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of
the hearing on, or other prompt disposition of,
such motion . . . .
In denying appellants' motion to dismiss on Speedy Trial Act
grounds, the district court ordered that the period of delay from Octo-
ber 20, 1995 through November 28, 1995 was, pursuant to the Act,
excludable in computing the time within which the trial should com-
mence. We agree that this period of time was properly excludable
under § 3161(h)(1)(F). The first pretrial motion, a motion to suppress,
was filed by appellant Dorlouis on October 20, 1995. Other motions
to suppress as well as additional pretrial motions were later filed by
other appellants. The motions to suppress were eventually denied by
the district court's Order of November 28, 1995. We agree that the
period of time between the filing of the first pretrial motion and the
court's final ruling on appellants' pretrial motions was properly
excludable under the Speedy Trial Act.
Appellants argue that there was no delay "resulting from" any of
the pretrial motions. According to appellants, § 3161(h)(1)(F) does
not provide for a blanket exclusion of the time during which motions
are pending. Appellants contend that the trial in this case could have
been held on November 20, 1995, the original scheduled date, even
8
though motions had theretofore been filed and even though there were
extensive proceedings before the court ruled on the motions.
We conclude that the filing of a pretrial motion creates excludable
time whether or not it can be shown that proceedings relating to such
a motion in fact delayed the trial. We construe§ 3161(h)(1)(F) as pro-
viding that delay always results after the filing of a pretrial motion
and that all time is excluded between such filing and the court's
prompt disposition of such motion. Subsection (F) does not require
that there be a determination that the period of delay in question be
reasonable before it may be excluded. Henderson v. United States,
476 U.S. 321, 327 (1986).
The statutory construction urged by appellants would require in
each case a detailed evidentiary examination before trial of all facts
relating to the filing of a pretrial motion, the holding of a hearing and
other proceedings pertaining to such a motion, and the time spent by
the court in its disposition of the motion. Appellants argue that the fil-
ing of pretrial motions in this case did not cause any delay and that
none of the time in question was therefore excludable. If it were nec-
essary to litigate this question in every case, and if it were necessary
for a party to show that delay actually resulted from the filing of a
pretrial motion before a period of time could be excluded under
§ 3161(h)(1)(F), extensive pretrial proceedings would be required,
including an inquiry into any delay caused by the court's research and
drafting of an opinion ruling on the pretrial motion. The statute
requires no such examination of the circumstances pertaining to the
filing and disposition of a pretrial motion. In United States v. Smith,
750 F.2d 1233, 1234 (4th Cir. 1984), cert. denied, 471 U.S. 1057(1985), we rejected the argument that a trial court should consider
whether time excluded after the filing of a motion was reasonably
necessary for the fair processing of the motion. Id. at 1234 (citing
United States v. Smith, 563 F. Supp. 217 (D. Md. 1983)). More
recently, the Third Circuit has held that any pretrial motion creates
excludable time within the meaning of § 3161(h)(1)(F), even if it does
not in fact delay the trial. United States v. Arbelaez, 7 F.3d 344, 347
(3d Cir. 1993).
Applying those principles here, we conclude that the district court
did not violate the Speedy Trial Act when it excluded from the com-
9
putation of the time for the holding of the trial the period of time
between the filing of pretrial motions by appellants and the Court's
disposition of such motions.
IV
Following his conviction, appellant Dorlouis filed a motion for a
new trial in which other appellants joined. An evidentiary hearing on
this motion was held by the district court. In an Order dated March
15, 1996, the district judge denied the motion for a new trial. Appel-
lants here claim that their motion for a new trial should have been
granted.
Appellants' motion for a new trial was based on the contention that
the witness Moore committed perjury in testifying at the trial. Moore
had a romantic relationship with one Benjamin Johnson, who was an
inmate at the South Central Regional Jail in Charleston, where appel-
lants were also incarcerated. After the trial, Moore wrote two letters
to Johnson. In the first letter, she stated that she had been "popped"
(or arrested) and that her cooperation resulted from this arrest. In the
second letter, she indicated that she had been compelled to cooperate
with law enforcement officials in order to avoid being arrested. These
statements contradict the trial testimony of both Moore and law
enforcement officers, all of whom testified that Moore initiated the
contact with Officer Hart when she was unable to pay for crack sup-
plied by appellants. It is urged by appellants that they are entitled to
a new trial because Moore committed perjury at the trial.
At the evidentiary hearing held on appellants' motion for a new
trial, Moore testified that the statements in her letters to Johnson were
untrue and were made in order to further her efforts to maintain a
romantic relationship with him. She testified that she was aware that
Johnson was incarcerated in the same jail with four of the defendants
and that she did not want her relationship with Johnson to be strained
because she had "snitched" on the appellants. According to Moore,
she had made up the story in her letters to make it appear that she was
in some manner compelled to be a confidential informant in the
course of implicating the appellants.
We review the district court's denial of appellants' motion for a
new trial for abuse of discretion. United States v. Arrington, 757 F.2d
101484, 1486 (4th Cir. 1985); United States v. Nelson, 970 F.2d 439,
443 (8th Cir.), cert. denied, 506 U.S. 903 (1992). Applying the princi-
ples of those cases here, we conclude that the district court did not
abuse its discretion in denying appellants' motion for a new trial. The
district court credited the testimony of Moore at the hearing on the
motion, determined that she had lied in her letters to Johnson and con-
cluded that she had not committed perjury at the trial. In view of its
finding as to Moore's credibility, the district court did not abuse its
discretion in denying appellants' motion for a new trial.
V
Among the pretrial motions filed by appellants was a motion to
suppress evidence recovered from the Nissan Pathfinder and from the
person of Jacques Paul when the vehicle was stopped and its occu-
pants arrested shortly after midnight on August 30, 1995. Appellants
Dorlouis and Jacques Paul contend that the district court erred in
declining to suppress the money found in the Pathfinder's console and
the money and drugs found on the person of Jacques Paul. The district
court held several hearings on appellants' motions to suppress evi-
dence. In its Order of November 28, 1995, the Court concluded that
probable cause existed for the arrest of the four male defendants in
the Pathfinder and that the search of the defendants and the vehicle
was in all respects reasonable as incident to the arrest of these four
individuals. The motions to suppress were accordingly denied. We
conclude on the record here that no error was committed by the dis-
trict court in so ruling.
It has long been established that probable cause exists where the
facts and circumstances are sufficient to warrant a person of reason-
able caution to believe that a crime has been committed and that seiz-
able property can be found at the place to be searched. Carroll v.
United States, 267 U.S. 132, 162 (1925). Probable cause to arrest
depends upon whether, at the moment the arrest was made, the facts
and circumstances within the arresting officers' knowledge and of
which they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the defendant or defendants
had committed an offense. Adams v. Williams, 407 U.S. 143, 148
(1972) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Once suspects
occupying an automobile have been arrested, officers are permitted,
11
as a contemporaneous incident to the arrest, to search their persons
and also the passenger compartment of the automobile. New York v.
Belton, 453 U.S. 454, 460 (1981); United States v. Taylor, 857 F.2d
210, 214 (4th Cir. 1988).
Moore, the confidential informant, had been used by Officer Hart
on several prior occasions. Information furnished by Moore and her
activities on August 29, 1995, which had been the subject of surveil-
lance and monitoring by the officers, clearly provided them with
probable cause to conclude that appellants had committed the crime
of conspiring to distribute crack cocaine, a felony under federal law.
Two separate transactions were monitored. First, Moore met with
Jacques Paul, Marc Charles and Sallie Schultz during the afternoon
of August 29, 1995. At that time, she paid the $700 she owed and
obtained more crack cocaine on credit.
Later, Moore was given $1,600 by the officers to carry out another
transaction that same evening. At about 11:20 p.m. on August 29,
1995, four black males were observed in the Pathfinder at the housing
project. Two of them left the vehicle, entered Moore's apartment and
later returned to the Pathfinder. Immediately thereafter, Moore met
with Officer Hart, identified the individuals with whom she had just
met and delivered to Hart the crack cocaine she had bought from
them. Moore was wearing body tapes during both the earlier and the
later transaction. The tapes of those transactions were not sufficiently
audible to be useful in determining what occurred. However, Officer
Hart had listened on his police radio to conversations between Moore
and the participants in the second transaction. Tapes of telephone
calls made by Moore concerning the drug transactions were audible
and intelligible. There was surveillance of both transactions by law
enforcement officers.
After meeting with Moore some two minutes after the second
transaction took place, Officer Hart alerted other officers and
instructed them to follow the Pathfinder and arrest its occupants. The
stop and arrest occurred only a short distance from the housing proj-
ect where Moore had met with them and had received the one ounce
of crack cocaine. Five or six police vehicles stopped the Pathfinder
on the Patrick Street Bridge and approached the vehicle which was
occupied by appellants Dorlouis, Charles, Jacques Paul, and Najac
12
Paul. All four occupants were ordered out and placed under arrest.
The vehicle was then searched and $958 was found in the front seat
console. A plastic bag containing 6.46 grams of crack cocaine was
found in the front pocket of Jacques Paul.
We conclude that the arresting officers had ample probable cause
to arrest all four of the occupants of the Pathfinder in the early morn-
ing hours of August 30, 1995. Once the arrest was made, the officers
were entitled, as incident to such arrest, to search the console of the
Pathfinder and to search the person of Jacques Paul. Taylor, 857 F.2d
at 214. There is no merit to appellants' argument that West Virginia
law is applicable and does not allow a warrantless arrest for a felony
not committed in the presence of the officers. We rejected that very
same contention in United States v. Sims, 450 F.2d 261, 262-63 (4th
Cir. 1971).
Appellant Jacques Paul argues that the officers did not have "par-
ticularized probable cause" to arrest him when they found him in the
Pathfinder. This contention ignores facts known by the officers indi-
cating that Jacques Paul had previously participated in various acts in
furtherance of the conspiracy. Based on the facts known to them, the
officers had reasonably trustworthy information indicating that
Jacques Paul was one of the four individuals in the vehicle which had
earlier that evening been driven to Moore's apartment where a drug
transaction occurred.
Relying on Illinois v. Lafayette, 462 U.S. 640, 645 (1983), Jacques
Paul further argues that he was subjected to an unconstitutional strip
search. We conclude under the circumstances here that Jacques Paul
was not subjected to an unnecessarily intrusive search. The officers
knew that Moore had earlier that evening given $1,600 in marked
money to appellants. When all four of the occupants of the vehicle
were searched and the money was not found, the decision was made
to search the clothing of each of the four individuals. Jacques Paul
was placed in the jump seat of a police van, his trousers were pulled
down and the $1,600 in marked money fell out. His boxer shorts were
not removed.
Under these circumstances, we conclude that the search in question
was not an unconstitutional strip search. The search did not occur on
13
the street subject to public viewing but took place in the privacy of
the police van. Since the police officers acted reasonably in attempt-
ing to locate the missing money, the contention by Jacques Paul that
he was subjected to an unconstitutional strip search must fail.
VI
Jacques Paul further argues that there was insufficient evidence to
support his conviction on Count Five. Similarly, appellant Schultz
contends that the evidence presented at the trial was not sufficient to
support her convictions on Counts One, Two and Three.
In our review of the record here, we must draw all reasonable infer-
ences in the light most favorable to the government. Glasser v. United
States, 315 U.S. 60 (1942). When assessing the sufficiency of the evi-
dence of a criminal conviction on direct review,"the verdict of the
jury must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Id. at 80.
Following our review of the facts of record here, we conclude that
the jury could rationally have found from the evidence that the prose-
cution had proved at the trial all of the essential elements of the crime
charged against Jacques Paul in Count Five of the superseding indict-
ment and also of the crimes charged against appellant Schultz in
Counts One, Two and Three of the superseding indictment.
VII
Appellants' other claims of error are similarly without merit.
Appellant Najac Paul asserts that the Sentencing Reform Act of 1984
and the Guidelines promulgated thereunder constitute a Bill of Attain-
der in violation of Article 1, Section 9 of the Constitution, since they
permit an increase in punishment because of relevant conduct. Najac
Paul also objects to the testimony of Rhonda Cunningham at the sen-
tencing hearing, claiming that such testimony unfairly resulted in an
increase in the punishment received by him because it constituted evi-
dence of crimes for which he was neither charged nor convicted.
A Bill of Attainder is a legislative determination of guilt which
metes out punishment to named individuals. United States v. Lovett,
14
328 U.S. 303, 315 (1946); United States v. Van Horn, 798 F.2d 1166,
1168 (8th Cir. 1986). The sentence of Najac Paul was governed by
the Sentencing Reform Act of 1984, 18 U.S.C. § 3551, et seq., and
the Guidelines promulgated by the Sentencing Commission. The Sen-
tencing Reform Act and the Guidelines do not specifically single out
any one individual for an increase in punishment. Rather, the Guide-
lines provide for increased punishment of convicted defendants who
have been involved in relevant conduct as defined by U.S.S.G.
§ 1B1.3. Because the pertinent section provides for increased punish-
ment of all defendants who have engaged in additional relevant con-
duct rather than of any specific defendant, it is not a Bill of Attainder.
United States v. Bennett, 928 F.2d 1548, 1556 (11th Cir. 1991); Van
Horn, 798 F.2d at 1168.
VIII
Appellant Schultz argues that the district court erred in denying her
motion for a severance, in denying her motion for acquittal and in
denying her motion for a mistrial. We have previously concluded that
the evidence was sufficient to support the conviction of appellant
Schultz on all counts. Severance is a matter committed to the sound
discretion of the district court. United States v. Tedder, 801 F.2d
1437, 1450 (4th Cir. 1986), cert. denied , 480 U.S. 938 (1987). Simi-
larly, denial of a defendant's motion for a mistrial is within the sound
discretion of the district court and will be disturbed only under the
most extraordinary of circumstances. United States v. Heyward, 729
F.2d 297, 301 n.2 (4th Cir. 1984), cert. denied, 469 U.S. 1105 (1985);
United States v. Smith, 44 F.3d 1259, 1268 (4th Cir.), cert. denied,
115 S.Ct. 1970 (1995).
Applying these principles, we conclude on the record here that the
trial court did not abuse its discretion in denying Schultz's motion for
a severance. The evidence indicated that appellant Schultz was a
member of the conspiracy from its inception. She has not shown that
the denial of her requested severance deprived her of a fair trial and
resulted in a miscarriage of justice. United States v. Becker, 585 F.2d
703, 706 (4th Cir. 1978), cert. denied , 439 U.S. 1080 (1979). Nor do
we conclude under the circumstances here that there was an abuse of
discretion when Schultz's motion for a mistrial was denied.
15
IX
For all the reasons set forth herein, we affirm the convictions of
appellants Dorlouis, Jacques Paul, Charles, Najac Paul and Schultz.
We further affirm the sentence imposed on appellant Najac Paul.
AFFIRMED.
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