United States v. Lamarr

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5532
ANTHONY JACQUEZ LAMARR,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5533
GUY A. DILLARD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5562
MAURICE L. MALLORY, a/k/a Darrell
Lee Lawson,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CA-93-173-D)
Argued: December 8, 1995
Decided: February 15, 1996
Before ERVIN and MOTZ, Circuit Judges, and WILLIAMS,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Motz and Senior Judge Williams joined.
_________________________________________________________________
COUNSEL
ARGUED: George David Nixon, KING, FULGHUM, SNEAD,
NIXON & GRIMES, P.C., Roanoke, Virginia, for Appellant Lamarr;
Robert F. Rider, RIDER, THOMAS, CLEAVELAND, FERRIS &
EAKIN, Roanoke, Virginia, for Appellant Mallory; Perry Henry Har-
rold, Martinsville, Virginia, for Appellant Dillard. Kenneth C. Bar-
tholomew, Third Year Law Student, University of Virginia School of
Law, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Joseph W.H. Mott, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Anthony Jacquez Lamarr, Guy Anthony Dillard, and Maurice L.
Mallory were convicted of several offenses including and related to
conspiracy to distribute cocaine base ("crack"). They argue on appeal
that the district court should have conducted separate trials for Lamarr
and Mallory, that the trial judge attributed too much cocaine to Mal-
lory under the Sentencing Guidelines, that there was insufficient evi-
dence to support their convictions, and that Dillard was entrapped by
police. We find no merit in those arguments. The appellants also con-
tend that the government improperly questioned witnesses about the
appellants' prior bad acts. We agree that prosecutors sought to elicit
inadmissible testimony, and we disapprove strongly of their efforts,
2
but we believe that the objectionable questions do not require reversal
in this case. Accordingly, we affirm.
I.
On August 11, 1993, police in Roanoke, Virginia, arrested Lamarr,
Mallory, and other co-conspirators--including alleged conspiracy
leader Joseph Manns--in response to an anonymous tip that they
were trafficking in illegal drugs. The police found in the arrestees'
hotel rooms 678.3 grams of cocaine, a Desert Eagle .357 semi-
automatic handgun, and over $8000 in cash. They soon learned that
Mallory was a fugitive from justice.
Manns agreed to cooperate. He contacted Dillard to arrange a sale.
Police arrested Dillard when he came to Manns's hotel room to buy
the cocaine. Dillard was carrying 5.72 grams of crack, a Colt .38
revolver, and $1,389 in cash; police found another .38 revolver in his
car.
Manns testified at trial that in the fall of 1992 he began travelling
from New York to Virginia to sell drugs. He said that Lamarr and
Mallory joined his operation in May 1993. Lamarr and Mallory con-
tested Manns's account by presenting evidence that they did not go
to Virginia until late July, 1993, on a vacation visit to Manns's fam-
ily.
II.
A.
The appellants contend that prosecutors repeatedly and improperly
questioned witnesses about the appellants' prior bad acts, in violation
of Fed. R. Evid. 404(b). We addressed Rule 404(b) in United States
v. Rawle:
Fed.R.Evid. 404(b) provides that "[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the char-
acter of a person in order to show that he acted in confor-
mity therewith." . . . Under Rule 404(b), however, prior bad
3
acts are admissible if they are (1) relevant to an issue other
than character, (2) necessary, and (3) reliable.
845 F.2d 1244, 1246-47 (4th Cir. 1988). Issues other than character
may include, the appellants note, "motive, opportunity, intent, prepa-
ration, plan, knowledge, identity, or absence of mistake or accident."
Appellants argue also that unfair prejudice outweighed the probative
value of each question they contest, in violation of Fed. R. Evid. 403.
We agree that the prosecutors did attempt to introduce improper
evidence. Such cross-examination tactics are highly inappropriate,
unnecessary, and unfair. We are at a loss to understand why prosecu-
tors are willing to jeopardize criminal convictions by failing to
remember and apply Justice Sutherland's classic admonition:
The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obli-
gation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor--indeed, he
should do so. But, while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain
from improper methods . . . as it is to use every legitimate
means to bring about a just [conviction].
Berger v. United States, 295 U.S. 78, 88 (1935). In this case, how-
ever, unlike Berger, the particularly harmful effect of the govern-
ment's improper questions was eliminated by the witnesses' answers
or was largely remedied by the district court's corrective measures,
and the evidence against the appellants was very strong without the
prosecution's objectionable tactics. For these reasons, the questions
present no ground for reversal. In another case, when improper prose-
cution questions result in more prejudicial answers, evoke less effec-
tive corrective measures by the trial court, or are accompanied by less
powerful prosecution evidence, such question might require reversal.
4
1.
In cross-examining Mallory's mother about her son's relationship
with Lamarr, the prosecutor asked if Mallory and Lamarr had been
"involved in drugs together." The appellants objected, and the court
sustained the objection before Ms. Mallory could answer. The district
court instructed the jury to disregard the question, but denied appel-
lants' motion for a mistrial. A mistrial should be granted only if a
question so prejudicially affects a defendant's rights that it denies him
a fair trial. We can reverse the denial of the mistrial motion only if
the district court abused its discretion by finding that the question did
not deny the appellants a fair trial. United States v. Castner, 50 F.3d
1267, 1272 (4th Cir. 1995).
Appellants argue that the question's "only tendency was to plant a
negative image of Mallory and his associates in the minds of the
jurors." We agree. But the district court did not abuse its discretion
by concluding that the appellants' sustained objection to the question,
the remedial instruction to the jury, and the witness's failure to
answer prevented the question from denying the appellants a fair trial.
2.
The prosecutor asked another witness--Mallory's friend Benjamin
Greaves--whether Mallory had been involved in drugs in late 1992.
Mallory's counsel objected initially, but withdrew the objection
before Greaves's answer. Greaves answered in the negative.
When an item of evidence is entered without objection, the stan-
dard of review is very deferential. We will reverse only if the district
court plainly erred by failing to disallow the evidence sua sponte, and
if failing to reverse would cause a miscarriage of justice. See United
States v. Mitchell, 1 F.3d 235, 239-40 (4th Cir. 1993). Assuming
arguendo that the question was improper, the prejudice that it caused
was not sufficiently severe. The witness's answer was favorable to
Mallory, so any prejudice must have arisen from the question itself.
A prosecutor's mere suggestion of misconduct can be damaging to a
defendant, even if the witness answers negatively. See Berger, 295
U.S. at 88. But the record contains enough other evidence of Mal-
5
lory's involvement in drugs that our failure to reverse on this ground
will not cause a miscarriage of justice.
3.
The appellants contest another question asked of Greaves. After
Greaves testified that Mallory had travelled to Boston in late 1992,
the prosecutor asked, "he was involved with drugs at that time, wasn't
he?" Again, Greaves answered negatively and Mallory's attorney
refrained from objecting. Lamarr's attorney objected, however,
because of the close relationship the prosecution had alleged between
Lamarr and Mallory. He argued that the indictments did not include
any events in Boston. The district court overruled the objection, rea-
soning that the conspiracy allegedly began in 1992.
Lamarr and Mallory contend that the evidence was irrelevant. They
point out that the indictment alleged no events in Boston and that the
government's lead witness indicated that they did not begin travelling
with him until May 1993. The government responds that the indict-
ment encompassed events in Virginia, New York, and"elsewhere,"1
and that an affirmative answer by Greaves would have been probative
of Lamarr and Mallory's planning of the conspiracy. Because only
Lamarr objected to the question, we apply different standards to the
two appellants. Regarding Lamarr's claim, we review for abuse of
discretion, and reverse only if the error was not harmless. United
States v. Heater, 63 F.3d 311, 320, 325 (4th Cir. 1995); see also
United States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981) ("The test
for harmlessness for nonconstitutional error is whether it is probable
that the error could have affected the verdict reached by the particular
jury in the particular circumstances of the trial."). Regarding Mal-
lory's claim, we review for plain error, and reverse only if affirming
would cause a miscarriage of justice. See Mitchell, 1 F.3d at 239-40.
We agree that the question's relationship to the charged conspiracy
was tenuous. Had Greaves answered in the affirmative, the question's
primary effect would have been to impermissibly paint Mallory, and
Lamarr by association, as drug traffickers. Thus it was unnecessary
_________________________________________________________________
1 "[E]lsewhere" was never explained, and there was no evidence of any
conspiratorial activity in Boston at any time.
6
under Rule 404(b) and unfairly prejudicial under Rule 403. Because
Greaves answered in the negative, however, and because there was
substantial proper evidence of the appellants' guilt, we find no rea-
sonable likelihood that the question affected the jury's verdict.
4.
After Greaves testified that he knew Mallory was a fugitive, the
prosecutor asked him if he knew the nature of the charge from which
Mallory was fleeing. Mallory's attorney objected before Greaves
could answer, and the district court sustained the objection. The
appellants argue that the question was unreliable because
(1) there was no attempt to prove that the underlying charge
was a drug charge, and (2) the warrant on the underlying
charge provides a probable cause standard of proof only,
which is not sufficiently reliable to allow the evidence to
come in at trial.
This argument is meritless. The question itself was an attempt to
show that the charge was a drug charge, and there is no requirement
that the government prove by extrinsic evidence what it fails to elicit
in cross-examination. Michelson v. United States , 335 U.S. 469, 481
& n.18 (1948) (allowing questions for which prosecutor has factual
basis even if factual basis itself is inadmissible). Moreover, a convic-
tion is not a prerequisite to cross-examination about a prior bad act.
Id. at 481. Most importantly, the district court sustained the objection
and the witness did not answer, so the appellants' only remedy below
would have been a mistrial. They did not move for a mistrial, so to
reverse this court would have to find that the mere asking of the ques-
tion denied the appellants their right to a fair trial, and that the district
court plainly erred by failing to make such a finding sua sponte.
Castner, 50 F.3d at 1272. If there was error it was not plain, and if
the question caused any prejudice it was not of sufficient magnitude.
5.
Dillard contests the trial court's ruling that, if he took the stand, the
government would be permitted to cross-examine him about his 1988
7
convictions for possession and sale of cocaine and marijuana.
Because of that ruling, Dillard contends, he forfeited his constitu-
tional right to testify.
The district court based its decision on Fed. R. Evid. 609, which
approves, for the purpose of attacking a witness's credibility, admis-
sion of prior convictions of crimes punishable by imprisonment for
more than a year if "the probative value of admitting th[e] evidence
outweighs its prejudicial effect." Dillard does not base his argument
on Rule 609, perhaps because he is aware of the Supreme Court's
holding in Luce v. United States, which apparently forecloses the
issue:
a defendant who does not testify at trial may not challenge
on appeal an in limine ruling respecting admission of a prior
conviction for purposes of impeachment under Rule 609(a)
of the Federal Rules of Evidence.
469 U.S. 38, 43 (1984) (Brennan, J., concurring). Dillard contends
instead that evidence of the prior convictions should have been barred
under Rule 404(b) because it was unnecessary and relevant to no
issue other than character.2
Regarding relevance, Dillard asserts that the "convictions were
clearly outside the conspiracy at issue in the trial and therefore clearly
had no tendency whatsoever to prove Dillard's guilt in the case at
bar." Regarding necessity, he states:
because the evidence was clearly not necessary to prove the
conspiracy, or any other element of the case, it cannot be
said that the evidence of Dillard's prior convictions was
necessary.
Both assertions are true, but irrelevant. Admissibility under Rule 609
is based not on probity of guilt, but on relevance to a witness's credi-
bility. Credibility is an issue other than character, so evidence neces-
_________________________________________________________________
2 We assume without deciding that Luce does not preclude Dillard's
404(b) argument.
8
sary to prove lack of credibility satisfies Rule 404(b). Dillard fails to
argue that his prior convictions were irrelevant to his credibility, so
his appeal of this issue is meritless.
6.
Appellants assert that, "where the government wishes to impeach
a witness using specific instances of misconduct[by the defendant],
it must have some good faith factual basis for the incidents inquired
about." The prosecutors violated that requirement, the appellants con-
tend, because they were not prepared to impeach negative responses
to their questions about such instances. This court reviews a trial
court's evidentiary rulings for abuse of discretion. Heater, 63 F.3d at
320.
Appellants misconstrue the standard. They are correct that a cross-
examiner must have a "good faith factual basis" for questions about
a defendant's prior acts. As we noted above, however, there is no
requirement that an attorney impeach negative answers. See supra
part II.A.4 (citing Michelson, 335 U.S. at 481 & n.18). Appellants do
not argue on appeal that prosecutors lacked a good-faith basis for the
questions. Nor is there any indication that they presented that argu-
ment below, when the district court could have conducted a factual
inquiry into the basis for the questions. Thus they have failed to show
abuse of discretion.
B.
Lamarr and Mallory contend that their trial should have been sev-
ered because each wanted to call the other as a witness regarding their
reasons for being in Virginia. A district court's denial of a motion to
sever may be reversed only for clear abuse of discretion. United
States v. Rhodes, 32 F.3d 867, 872 (4th Cir. 1994), cert. denied, 115
S. Ct. 1130 (1995).
In United States v. Parodi, this court set clear parameters to govern
severance for the purpose of obtaining testimony from co-defendants:
[T]he moving defendant must establish (1) a bona fide need
for the testimony of his co-defendant, (2) the likelihood that
9
the co-defendant would testify at a second trial and waive
his Fifth Amendment privilege, (3) the substance of his co-
defendant's testimony, and (4) the exculpatory nature and
effect of such testimony.
703 F.2d 768, 779 (4th Cir. 1983) (citations omitted). These appel-
lants fail to establish any of Parodi's requirements. They indicate that
the testimony would have concerned their purpose for being in Vir-
ginia, but they do not indicate what that purpose was; thus there is no
way for the court to determine the substance of the testimony,
whether it was necessary, or whether it would have been exculpatory.
Moreover, although they assert that each could have testified at the
trial of the other, they say nothing about the likelihood that either
actually would have waived his privilege. The appellants have pres-
ented no information about the arguments they made to the district
court in support of the motion to sever, so we cannot know whether
those arguments satisfied Parodi. In sum, Lamarr and Mallory offer
no indication that the district court abused its discretion by denying
their severance motions.
C.
Mallory contests the amount of cocaine that the district court attri-
buted to him. In a district court's application of the Sentencing Guide-
lines, its factual findings are reversible only if clearly erroneous. See
18 U.S.C. § 3742. Questions of law, however, are reviewed de novo.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). A
defendant's Base Offense Level under the Guidelines is determined
by the amount of drugs "reasonably foreseeable to him within the
scope of his unlawful agreement." United States v. Irvin, 2 F.3d 72,
77 (4th Cir. 1993), cert. denied, Gonzalez v. United States, 114 S. Ct.
1086 (1994); United States Sentencing Commission, Guidelines
Manual, § 1B1.3(a)(1)(B), comment 2(c) (1994). The sentencing
judge applies a preponderance of evidence standard, United States v.
Brooks, 957 F.2d 1138, 1148 (4th Cir.), cert. denied, 112 S. Ct. 3051(1992), and must make individualized findings, estimating the amount
reasonably foreseeable to each co-conspirator. U.S.S.G. § 1B1.3(a)(1)
& comment 2.
The district court adopted the presentencing report's calculation
that Mallory was responsible for approximately six kilograms of
10
cocaine. Mallory argues that the estimate erroneously relied on "the
uncorroborated and contradictory testimony of [a] co-conspirator"--
Joseph Manns. He relies most heavily on United States v. Sepulveda,
in which the First Circuit vacated a sentence because the district court
relied on testimony from the guilt phase of trial that addressed quanti-
ties of drugs only generally. 15 F.3d 1161, 1198 (1st Cir. 1993), cert.
denied, 114 S. Ct. 2714 (1994). But the Sepulveda court did not chal-
lenge the district court's determination that the witness was credible;
it held that "where uncertainty reigns" about the amount of drugs
involved in a conspiracy, courts should "err on the side of caution."
Id.Manns acknowledged that he did not keep business records, but he
described the frequency of his trips to and from New York and the
amount of cocaine he typically purchased for resale in Virginia:
Q During the time that you were involved with Mr. Mal-
lory and Mr. Lamarr, how often were you going to New
York to get cocaine?
A Anywhere from two to three times a month.
Q And how much were you bringing back?
A Anywhere from a key and a half or less.
* * *
Q Tell me then, how many trips did you and Mr. Mallory
make down here from May through June of 1993?
A I can't say the exact amount, but I figure it was about
six or seven trips.
The court's conclusion was based on Manns's lowest estimate of the
number of trips--six--and one kilogram of cocaine per trip. The
amount per trip was consistent with Manns' statement that he brought
back "a key and a half or less" each time, and with his estimate that
he brought back about two kilograms per month during the entire
nine-month period in which he was travelling to New York:
11
Q How much cocaine did you bring down here [from]
November '92 through August '93, sir?
An approximation would be sufficient.
A Maybe about eighteen, nineteen keys.
The district court's estimate is inexact, but does not rise to the level
of uncertainty about which the Sepulveda court was concerned. In
Sepulveda, the witness merely had used ranges to estimate amounts
and the number of trips, and the court guessed the total by using the
midpoints of those ranges. In this case, however, the district court
used the low end of the range to estimate the number of trips and esti-
mated the amount per trip consistently with the witness's testimony
regarding both the amount per trip and the total amount transported
during the duration of the conspiracy. As the First Circuit itself noted,
Sepulveda was an exceptional case, and its holding should not be con-
strued broadly:
In our view, a sentencing court remains free to make judi-
cious use of properly constructed averages and, ultimately,
to make any finding that the record supports. . . . Here, how-
ever, the record does not justify the district court's findings
concerning the drug quantities.
15 F.3d at 1199 (citations omitted). The record in this case supports
the district court's estimate. Thus the estimate is not clearly errone-
ous, and Mallory's sentence should stand.
D.
All of the appellants argue that there was insufficient evidence to
support their convictions. A conviction may be reversed for insuffi-
cient evidence only if, viewed in the light most favorable to the gov-
ernment, the evidence was so insubstantial that no"rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Hamling v. United States, 418 U.S. 87, 124 (1974). Appellants' chief
sufficiency argument is a challenge to the validity of Manns' testi-
12
mony. Because Manns hoped to earn a motion for substantial assis-
tance, they argue, his testimony was "non-credible and non-worthy of
belief." That argument clearly must fail, for a fundamental rule of the
jury system is that "this court is bound by the`credibility choices of
the jury.'" United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Secondarily, the appellants argue that there was insufficient evi-
dence to support defendant Dillard's conviction of possession with
intent to distribute crack. They contend that the amount he possessed
--5.72 grams--was "consistent with personal use." In United States
v. Fisher we held that quantity is important in determining intent:
Intent to distribute may be inferred from possession of . . .
a quantity of drugs larger than needed for personal use. Pos-
session of a small quantity of drugs by itself is an insuffi-
cient basis from which intent to distribute may be inferred.
912 F.2d 728, 730 (4th Cir. 1990) (citations omitted), cert. denied,
500 U.S. 919 (1991). More recently, we have held twice that the
inference of intent to distribute is supported by quantities of approxi-
mately thirteen grams of crack. United States v. Bell, 954 F.2d 232,
235 (4th Cir. 1992) ("thirteen plus grams"), cert. denied, Cruz v.
United States, 114 S. Ct. 112 (1993); United States v. Smith, 966 F.2d
1446, 1992 WL 138355, at *1 (4th Cir. 1992) (per curiam) (unpub-
lished) ("12.79 grams").
We noted in Smith that "crack is normally distributed in doses of
1/10 of a gram and that a person ingesting a dose daily would be con-
sidered a `strong' user." 966 F.2d 1446, 1992 WL 138355 at *1;
accord Bob Martinez, Director, Office of National Drug Control Pol-
icy, The Case for Mandatory Minimum Sentences , Wash. Post, June
30, 1992, at A18 (Letters to the Editor) ("[F]ive grams is the equiva-
lent of 50 street doses of crack. Anybody holding that much crack is
dealing and ought to be punished accordingly."). Thus Dillard pos-
sessed roughly the amount of crack that a "strong" user would ingest
in two months. Combined with Manns' testimony that Dillard was a
crack dealer, the amount in question was sufficient evidence to sup-
port the jury's inference of intent to distribute beyond a reasonable
doubt.
13
E.
The court instructed the jury about entrapment. Dillard contends
that there was insufficient evidence for the jury to conclude that he
was not entrapped. According to the appellants' brief, "[w]here a per-
son has no previous intent or purpose to violate the law, but is
induced or persuaded by law enforcement officers or their agents to
commit a crime, he is a victim of entrapment." Dillard concludes that
he was a victim of entrapment because
there was substantial evidence that [he] was persuaded and
induced by Manns, acting as an agent of the law enforce-
ment officers who apprehended [Manns], to come to the
motel to attempt to knowingly and intentionally possess
with intent to distribute cocaine.
The appellants' brief incorrectly states the law of entrapment. We
stated the correct standard last year in United States v. Harrison:
"[A] valid entrapment defense has two related elements:
government inducement of the crime, and a lack of predis-
position on the part of the defendant to engage in the crimi-
nal conduct." While the question of whether a defendant has
been entrapped is generally one for the jury, when govern-
ment agents merely offer an opportunity to commit the
crime and the defendant promptly avails himself of that
opportunity, an entrapment instruction is not warranted.
37 F.3d 133, 136 (4th Cir. 1994) (quoting Mathews v. United States,
485 U.S. 58, 63 (1988)) (citing Jacobson v. United States, 112 S. Ct.
1535, 1541 (1992)). Dillard's argument is based entirely on the first
element: Manns, acting as a government agent, induced Dillard's
crime. Dillard neither argues nor points to evidence of the second
element--that he lacked the predisposition to commit the offense. In
fact, his situation fits exactly Harrison's holding that, as a matter of
law, there is no entrapment when police merely offer an opportunity
of which a defendant avails himself:
Upon contact with Dillard, Manns offered to sell Dillard
seven (7) ounces of cocaine for $6,000. This was done with
14
the apparent knowledge of and at the request of the police.
According to Manns, Dillard agreed to the aforesaid pro-
posed transaction and thereafter Dillard was apprehended in
the motel room which Manns told him (Dillard) to come to
allegedly purchase drugs.
Because Dillard has not even met the requirements for an instruction
on entrapment, the jury's rejection of the defense was supported by
the evidence.
III.
We find no reversible error. Accordingly, we affirm the convic-
tions and Mallory's sentence.
AFFIRMED
15