United States v. Sappleton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4613
DEVON MICHAEL SAPPLETON,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4633
DEREK LAVELLE STATEN,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-01-284-PJM)
Submitted: May 30, 2003
Decided: June 24, 2003
Before LUTTIG and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. SAPPLETON
COUNSEL
Charles A. Murray, Naples, Florida; Harry D. McKnett, Columbia,
Maryland, for Appellants. Thomas M. DiBiagio, United States Attor-
ney, James M. Trusty, Assistant United States Attorney, Barbara S.
Skalla, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Devon Sappleton and Derek Staten were convicted by a jury of
conspiracy to distribute and possess with intent to distribute five kilo-
grams or more of cocaine, fifty grams or more of cocaine base, and
100 kilograms or more of marijuana, 21 U.S.C. § 846 (2000); posses-
sion with intent to distribute 500 grams or more of cocaine, 21 U.S.C.
841 (2000) (Staten); and being a felon in possession of ammunition,
18 U.S.C. § 922(g) (2000) (Sappleton). Based on the drug quantities
and his two prior drug trafficking convictions, Sappleton received a
life sentence. Staten was sentenced to 360 months imprisonment, fol-
lowed by five years of supervised release. They appeal, raising
numerous challenges to their convictions and sentences.
Appellants first claim that the drug estimates attributed to them at
sentencing were not based on sufficiently reliable evidence. Accord-
ing to the Appellants, the district court relied on estimates based on
the recollection of a convicted co-conspirator, and then extrapolated
those estimates to come up with a total drug quantity attributable to
them at sentencing.
The district court’s drug quantity determination is reviewed for
clear error, United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996),
UNITED STATES v. SAPPLETON 3
although the Government has the burden of establishing the amount
by a preponderance of the evidence, United States v. Cook, 76 F.3d
596, 604 (4th Cir. 1996). The Sentencing Guidelines do not demand
certainty and precision; they demand that a court do the best that it
can with the evidence in the record, erring on the side of caution. Id.Finally, a conspirator may be held accountable for all quantities of
contraband attributable to the conspiracy which were reasonably fore-
seeable and which were taken within the scope of the conspiratorial
agreement. United States v. Gilliam, 987 F.2d 1009, 1012-13 (4th Cir.
1993); U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B) & com-
ment. (n.2) (2002).
Based on the trial testimony of Harry White, the district court
determined that 87.5 kilograms of cocaine were attributable to the
Appellants but for simplicity reduced that to 75 kilograms. This find-
ing was based on testimony establishing approximately thirty-five
trips with an average of 2.5 kilograms of cocaine per trip. Appellants
cannot show that the district court’s calculation was clearly erroneous.
See United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999) (hold-
ing that hearsay testimony of a co-conspirator alone can provide suffi-
ciently reliable evidence of drug quantity). Sappleton next claims that
the district court improperly allowed the Government to introduce at
trial evidence concerning two prior drug convictions. Fed. R. Evid.
404(b). This Court reviews a district court’s determination of the
admissibility of evidence under Rule 404(b) for abuse of discretion.
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). A district
court will not be found to have abused its discretion unless its deci-
sion to admit evidence under Rule 404(b) was arbitrary or irrational.
United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990) (upholding
admission of evidence of similar prior bank robberies).
Evidence of other crimes is not admissible to prove bad character
or criminal propensity. Fed. R. Evid. 404(b). Such evidence is admis-
sible, however, to prove "motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." Id.;
Queen, 132 F.3d at 994. Rule 404(b) is an inclusive rule, allowing
evidence of other crimes or acts except that which tends to prove only
criminal disposition. Queen, 132 F.3d at 994-95; United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). Evidence of prior acts
is admissible under Rule 404(b) if the evidence is: (1) relevant to an
4 UNITED STATES v. SAPPLETON
issue other than the general character of the defendant; (2) necessary,
in that it is probative of an element of the offense; and (3) reliable.
Further, the probative value of the evidence must not be substantially
outweighed by its prejudicial value. Fed. R. Evid. 403; Queen, 132
F.3d at 997. Limiting jury instructions explaining the purpose for
admitting evidence of prior acts and advance notice of the intent to
introduce prior act evidence provide additional protection to defen-
dants. Queen, 132 F.3d at 997. Applying these principles, we find that
the district court properly admitted the evidence of Sappleton’s prior
drug convictions. The evidence was relevant and necessary in that it
established Sappleton’s knowledge, intent, and absence of mistake.
Furthermore, the district court issued a limiting instruction.
Even relevant evidence of prior bad acts may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair preju-
dice. Fed. R. Evid. 403. There is no unfair prejudice under Rule 403
when the extrinsic act is no more sensational or disturbing than the
crimes with which the defendant was charged. United States v. Boyd,
53 F.3d 631, 637 (4th Cir. 1995). Here, the evidence involved prior
convictions involving the same activity charged in the present indict-
ment. Accordingly, the district court did not abuse its discretion in
finding that the evidence was not unduly prejudicial. United States v.
MacDonald, 688 F.2d 224, 227-28 (4th Cir. 1982).
Next, Sappleton argues that the district court erred in denying his
motion for severance because of the danger of prejudicial spillover of
evidence relating solely to Staten. We review a district court’s denial
of a motion for severance for abuse of discretion. Opper v. United
States, 348 U.S. 84, 95 (1954); United States v. Haney, 914 F.2d 602,
606 (4th Cir. 1990). Defendants who have been charged in the same
conspiracy indictment should ordinarily be tried together. United
States v. Roberts, 881 F.2d 95, 102 (4th Cir. 1989). The party moving
for severance must establish that prejudice would result from a joint
trial, Fed. R. Crim. P. 14, not merely that separate trials would result
in a better chance of acquittal, Roberts, 881 F.2d at 102. The fact that
the evidence against one defendant is stronger than the evidence
against other defendants does not in itself justify severance. United
States v. Hargrove, 647 F.2d 411, 415 (4th Cir. 1981). "If this were
the case, motions to sever, which are rarely granted in conspiracy
cases . . . would have to be granted almost as a matter of course."
UNITED STATES v. SAPPLETON 5
United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992) (internal
citations omitted). Sappleton has failed to show how he was preju-
diced by the district court’s denial of his motion to sever: he does not
identify the evidence he claims "spilled over" to him, nor is there any
evidence in the record that the jury improperly considered against
Sappleton evidence concerning only Staten.
Sappleton’s fourth claim on appeal is that his two prior drug traf-
ficking offenses were related offenses and, therefore, should have
been counted as only one offense under 21 U.S.C. § 841(b) (providing
for twenty-year minimum sentence where defendant has had one prior
felony drug offense). Although prior convictions may count as a sin-
gle conviction for purposes of statutory sentencing enhancements,
United States v. Blackwood, 913 F.2d 139 (4th Cir. 1990), we find
that Sappleton’s prior offenses do not qualify under this limited
exception.
In United States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995),
this court held that "convictions occur on occasions different from
one another if each of the prior convictions arose out of a separate and
distinct criminal episode." (quotations omitted); see also Blackwood,
913 F.2d at 146. In analyzing whether a defendant’s convictions arose
from separate and distinct criminal episodes, this court considers
whether the time interval between the crimes underlying the convic-
tions allowed the accused sufficient time to "make a conscious and
knowing decision to engage in another" crime. Letterlough, 63 F.3d
at 337. Sappleton’s prior drug convictions occurred more than three
years apart and were not in any way related offenses. Accordingly,
they were properly counted as two felony drug offenses for sentenc-
ing purposes.
Appellants’ fifth claim is that the district court admitted electronic
surveillance evidence based upon documents that were "improperly
executed." On four occasions in early 2001, the district court autho-
rized the interception of communications over a digital display pager
and a cellular telephone. The Appellants maintain that the Govern-
ment failed to follow the procedures outlined in 18 U.S.C.A. § 2516(West 2000 & Supp. 2003), when it applied for authorization.
Prior to submitting the application for an order authorizing the
wiretap, the United States Attorney’s Office for the District of Mary-
6 UNITED STATES v. SAPPLETON
land obtained approval from the Acting Assistant Attorney General,
Criminal Division. The authorization memorandum was addressed to
Frederick Hess, Director of the Office of Enforcement Operations,
Criminal Division, who, in turn, forwarded it to the United States
Attorney’s Office for the District of Maryland. The cover letter was
mistakenly addressed to the former United States Attorney, Lynne
Battaglia, rather the then-current United States Attorney, Stephen
Schenning.
According to the Appellants, because Mr. Hess did not personally
sign the cover letter and because the cover letter was addressed to the
wrong United States Attorney, the authorization procedures outlined
in § 2516 were not followed. In denying the motion to suppress, the
district court properly noted that the cover letter was not required by
statute. Moreover, the appropriate official within the Justice Depart-
ment approved the application in accordance with § 2516. We find
that the district court did not err in denying the motion to suppress the
electronic surveillance evidence.
Sappleton’s sixth argument is that his life sentence constitutes cruel
and unusual punishment in violation of the Eighth Amendment. We
find this claim to be meritless. Harmelin v. Michigan, 501 U.S. 957(1991) (upholding life sentence without parole for conviction of pos-
session of cocaine).
Sappleton also claims that the prior convictions described in the 21
U.S.C. § 851 information should have been charged in the indictment,
submitted to the jury, and proven beyond a reasonable doubt under
the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.
466 (2000). Because Sappleton did not raise this issue below, we
review it for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). Based on the jury’s findings of
drug quantity, Sappleton faced a maximum penalty of life imprison-
ment pursuant to 21 U.S.C. § 841(b)(1)(A). Because Apprendi explic-
itly exempts penalty enhancements based on prior convictions, there
was no error.
Appellants’ eighth claim is that § 841(b) is facially unconstitutional
in light of Apprendi because Congress intended drug quantity under
this provision to be a sentencing factor rather than an element of the
UNITED STATES v. SAPPLETON 7
offense. This argument is foreclosed, however, by this Court’s
explicit holding in United States v. McAllister, 272 F.3d 228 (4th Cir.
2001) (upholding constitutionality of § 841 after Apprendi).
Next, Staten argues that the Government failed to present any evi-
dence of his involvement with crack cocaine to support his conviction
on Count I. At sentencing, the Government conceded that the evi-
dence did not clearly support a finding of Staten’s involvement with
crack cocaine. Based on these concessions by the Government, the
district court specifically excluded crack cocaine from its drug quan-
tity calculations. Accordingly, we find that any error in denying Stat-
en’s Fed. R. Crim. P. 29 motion was harmless. United States v.
Lovern, 293 F.3d 695, 701 (4th Cir.), cert. denied, 123 S.Ct. 633(2002); Fed. R. Crim. P. 52(a).
Staten next claims that the district court improperly allowed the
Government to introduce evidence of unexplained income where
there was no evidence presented connecting it to any illegal activity.
The Government introduced a summary chart of wire transfers to
Staten, via Western Union, totaling $77,120. At the time, Staten was
employed as a trash collector in Los Angeles. The evidence was prop-
erly admitted as unexplained wealth which "hugely exceeded any ver-
ifiable income." United States v. Thomas, 913 F.2d 1111, 1115 (4th
Cir. 1990). The Government was not required to prove that the money
was directly connected to the drug offenses charged. United States v.
Martinez, 938 F.2d 1078, 1085 (10th Cir. 1991).
Finally, Staten argues that the district court abused its discretion by
denying his motion for a continuance after the Government intro-
duced the wire transfer evidence. Staten claims that, by denying his
request, he was deprived of an opportunity to obtain and present evi-
dence to prove that the money was legitimately earned. Staten’s
motion was made on the first day of trial and was based on the
claimed need to interview witnesses whose names were known to
Staten long before the trial began. In denying Staten’s request, the
district court noted that the evidence the Government introduced had
been available to Staten’s counsel for many months. Moreover, Staten
did not proffer the expected testimony of any of the witnesses. See
United States v. LaRouche, 896 F.2d 815, 823 (4th Cir. 1990) (hold-
8 UNITED STATES v. SAPPLETON
ing that more than a general allegation of prejudice is required to
establish an abuse of discretion in denying a motion for continuance).
Based on the foregoing, we affirm Sappleton’s and Staten’s convic-
tions and sentences. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED