United States v. Eddie Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4915
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDDIE D. JONES, a/k/a D,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:09-cr-00196-1)
Argued: December 6, 2011 Decided: March 14, 2012
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Troy Nino Giatras, GIATRAS LAW FIRM, LLP, Charleston,
West Virginia, for Appellant. Joseph Franklin Adams, OFFICE OF
THE UNITED STATES ATTORNEY, Huntington, West Virginia, for
Appellee. ON BRIEF: R. Booth Goodwin, II, United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The grand jury charged Eddie D. Jones in a one-count
indictment with conspiracy to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. § 846. After several
continuances, the district court conducted a bench trial, at the
conclusion of which the court convicted Jones of the conspiracy
charge. The court subsequently sentenced Jones to 188 months’
imprisonment. Jones noted a timely appeal. For the reasons
that follow, we affirm.
I.
In May 2009, the United States Drug Enforcement
Administration commenced an investigation in Huntington, West
Virginia, concerning the trafficking of heroin. Through his
investigation, Special Agent Tom Bevins identified Raymond D.
Roe as a heroin distributor.
Bevins then used confidential informant Margaret Sines to
purchase a quantity of heroin from Roe at his home in
Huntington. She was given $50 in exchange for her assistance.
Agents subsequently secured and executed a search warrant at
Roe’s home. Roe and Rachel Kinder were at the residence when
the agents executed the search. Kinder gave a written statement
identifying Roe as her supplier of heroin. Agents seized the
following items from the home: several bags of heroin, a
2
substance used to “cut” heroin, digital scales, a Frito Scoops
can with a false bottom, and a firearm.
Roe immediately indicated that he would cooperate in the
investigation. In addition to assisting agents in locating
certain items in his home, he also gave a statement to agents
and agreed to conduct a recorded telephone call with his
supplier, Jones. During the telephone conversation, Roe told
Jones that he had “put three in the mail” and that he “had 20
G’s left.” Roe explained that this meant that he had put $3000
in the mail and that he had approximately 20 grams of heroin
left to sell.
After a further criminal investigation into the matter, the
grand jury indicted Jones with conspiracy to distribute 100
grams or more of heroin, in violation of 21 U.S.C. § 846. A
bench trial was held, at which Roe, Sines, Kinder, and others
testified against Jones. The various witnesses testified, among
other things, that: Jones directly sold drugs multiple times
while staying at Roe’s home; Roe only had drugs when Jones was
visiting from Detroit; Roe told various people that Jones was
one of his heroin suppliers; and Jones supplied Roe on multiple
occasions with large quantities of heroin. The district court
ultimately convicted Jones of the charge and sentenced him to
188 months’ imprisonment. Jones now appeals.
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II.
Jones contends that the district court erred in allowing
the government to use the stipulation of facts from a withdrawn
plea agreement in its case-in-chief. He further maintains that
the court inappropriately permitted the admission of those facts
against him even though he thought that he was reserving his
right not to have those facts used against him by placing the
citation “UCC 1-207” at each place on the withdrawn plea
agreement where he signed or initialed a page. Moreover, Jones
insists that the district court erred by failing to conduct a
proper hearing on the issue.
We review de novo the district court’s decision concerning
the validity of a waiver of rights. United States v. Cohen, 459
F.3d 490, 494 (4th Cir. 2006). In addition, under a harmless-
error analysis, a district court’s evidentiary rulings ought not
be disturbed unless the error affected the defendant’s
substantial rights. United States v. Nyman, 649 F.2d 208, 211-
12 (4th Cir. 1980). To find a district court’s error harmless,
we need only be able to say “with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” Id. (quoting Kotteakos v. United States,
328 U.S. 750, 765 (1946)) (internal quotation marks omitted).
4
Assuming, without deciding, that the district court erred
in admitting Jones’s withdrawn plea agreement, any such error
was harmless. As detailed below, even without the stipulated
facts, the evidence of Jones’s guilt is overwhelming. Further,
from the district court’s explanation of its verdict, it does
not appear that it gave the stipulation of facts in the plea
agreement any weight in determining Jones’s guilt. Thus, we are
unable to say that the district court’s judgment was
substantially swayed by the alleged error. Any error,
therefore, was harmless.
III.
Jones also contends that the district court erred by not
presenting him with the option to be tried by a jury of his
peers. According to Jones, the jury venire included just one
African-American juror and the initial jury panel viewed by
Jones had no African-American jurors. Because Jones failed to
object at trial, we review only for plain error. See United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). To
demonstrate plain error, a defendant must establish (1) that the
trial court erred, (2) that the error is clear and obvious, and
(3) that the error affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732-34 (1993). Even if the
defendant meets this burden, we have discretion whether to
5
recognize the error, and we will not do so unless “the error
‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. at 736 (alteration in
original) (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)).
In the end, the composition of the jury venire did not
prejudice Jones. He freely and voluntarily waived his right to
a jury trial, as evidenced by the jury waiver and the district
court’s extensive colloquy on the matter. He chose a bench
trial instead. Further, Jones makes no argument on appeal that
his jury trial waiver is invalid. Hence, he cannot prevail.
Assuming for the sake of argument, however, that Jones’s
statement that “I see them out there . . . [b]ut I don’t see me
out there,” and “[t]hat’s not a jury of my peers” is sufficient
for us to find that he preserved this issue for appeal, his
argument still fails.
Duren v. Missouri, 439 U.S. 357 (1979), sets forth the
applicable standard for judging this claim.
[T]o establish a prima facie violation of the fair-
cross-section requirement, the defendant must show (1)
that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury-
selection process.
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Id. at 364. The first factor is met, so we look to the second
one. Unfortunately for Jones, though, we are unable to find any
merit in his claim “that the representation of this group in
venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community[.]” Id. As noted by the government, Jones avers that
approximately 3.2% of West Virginia residents are African-
American. Yet, 2.7% of the jury venire was African-American.
We cannot say that this mere half of a percentage point
difference in any way demonstrates that Jones’s venire was “not
fair and reasonable in relation to the number of such persons in
the community[.]” Id. “To allow [Jones] to substitute evidence
of [de minimis] underrepresentation for evidence of systematic
exclusion would go a long way towards requiring perfect
statistical correspondence between racial percentages in the
venire and those in the community. Such a rule would exalt
racial proportionality over neutral jury selection procedure.”
Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir. 1998). This we
decline to do.
IV.
Next, Jones argues that the government failed to disclose
potentially exculpatory witnesses and evidence to him in a
timely manner. And, according to Jones, the district court
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erred by denying his motion to continue and allowing the
government to use the evidence in its case-in-chief.
“[A] trial court’s denial of a continuance is
. . . reviewed for abuse of discretion; even if such an abuse is
found, the defendant must show that the error specifically
prejudiced her case . . . to prevail.” United States v.
Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005). Our review of the
district court’s admission of evidence is also for an abuse of
discretion. United States v. Wilson, 624 F.3d 640, 649 (4th
Cir. 2010).
Jones maintains that just nine days before his trial was to
commence—but eight months after the grand jury returned its
indictment against him—the government informed him that it was
adding Andrew Brown and Michelle Klodowski to its list of
possible witnesses. Moreover, according to Jones, just seven
days before trial, the government told his counsel that Kinder
was a potential witness.
Jones further claims that just five days before trial, the
government notified him that Sines had been given $50.00 in
exchange for acting as a confidential informant. On that same
day, Jones states the government informed his attorney of the
existence of an audio recording of the controlled buy made by
Sines. Jones’s attorney received the recording later that day.
Moreover, according to Jones, just two days before trial, his
8
attorney received two discs, which purportedly contained
evidence favorable to Jones’s case.
Concerning the late disclosure of the witnesses named
above, as the district court aptly observed, the government had
no duty to disclose its witness list to Jones in this case. We
have long held that defendants are “not entitled of right, in
[a] non-capital case, to such pretrial disclosure[s].” United
States v. Anderson, 481 F.2d 685, 693 (4th Cir. 1973).
Nevertheless, it appears from the record that the government
provided such a list, and then supplemented the list as
witnesses were added. Thus, because the government had no
obligation to disclose this information in the first place, we
are unable to say that the district court abused its discretion
either in refusing to grant a continuance because of the late
disclosures or in allowing the testimony.
Regarding the admission of the other evidence, Jones has
failed to set forth, and we have been unable to identify, any
violation on the government’s part. There is no requirement
that the government “disclose all the minutiae . . . of its
evidence, to reveal its trial strategy, and to delineate with
total specificity the case it intends to present.” Id. at 694(quoting United States v. Fioravanti, 412 F.2d 407, 411 (3d Cir.
1969)) (internal quotation marks omitted). Thus, we can find no
error in the district court’s rulings regarding these items. Of
9
course, Jones would have liked to have received all of these
materials earlier. But the fact that he did not fails to rise
to a statutory or constitutional violation.
We briefly address Jones’s contention that the government
failed to disclose exculpatory evidence. According to Jones,
the aforementioned witnesses and evidence were potentially
exculpatory, but he was not made aware of the witnesses and the
evidence in time to use it in a reasonable and effective manner
at trial. Although Kinder’s and Brown’s statements are Jencks 1
material and the payment of $50 to Sines is arguably Giglio 2
material, that evidence was provided to Jones in time for him to
use effectively at trial. Jones has neglected to demonstrate
either to the district court or to us how any of the other
evidence was exculpatory. As such, we find no error.
V.
Jones further maintains that the district court erred in
convicting him based on unsubstantiated accomplice testimony and
1
The Jencks Act requires the government to produce
statements made by a witness that relate to the subject matter
of his or her direct examination. 18 U.S.C. § 3500(b).
2
Under Giglio v. United States, 405 U.S. 150 (1972), when
the reliability of a given witness may be determinative of guilt
or innocence, disclosure of evidence relating to credibility is
required.
10
conflicting reports concerning the drug weights at issue. This
argument essentially challenges the sufficiency of the evidence
supporting his conviction. A defendant who challenges the
sufficiency of the evidence faces a “heavy burden.” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (quoting
United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995))
(internal quotation marks omitted). “[A]n appellate court’s
reversal of a conviction on grounds of insufficient evidence
should be ‘confined to cases where the prosecution’s failure is
clear.’” United States v. Jones, 735 F.2d 785, 791 (4th Cir.
1984) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
We review the record in the light most favorable to the
government in determining whether there is sufficient evidence
to support the conviction. United States v. Penniegraft, 641
F.3d 566, 571 (4th Cir. 2011). “The [fact-finder], not the
reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented . . . .”
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). We
consider circumstantial as well as direct evidence, and allow
the government “the benefit of all reasonable inferences from
the facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
In articulating its reasons for convicting Jones, the
district court stated that it made its decision primarily on the
11
testimony of Roe. The district court then went on to discuss
this testimony.
Roe testified that he had purchased heroin from Jones for a
long period of time. He attested that Jones would come to his
home, bringing between fifty and one hundred grams of heroin at
a time. Roe also recounted that there were times when he would
travel to Jones’s home in Detroit to meet Jones to purchase
heroin. On the three occasions that Roe traveled to Detroit, he
received from Jones 30, 40, and 50 grams of heroin,
respectively. As such, the district court determined that the
evidence was overwhelming that the conspiracy involved a drug
weight exceeding one hundred grams of heroin.
The district court also found that Jones was the primary,
if not exclusive, source of illegal drugs for Roe. Roe acted as
the middleman, allowing Jones to sell heroin to a number of
people. Roe asserted that he and Jones shared resources,
locations, and customers.
The district court observed that although some of Roe’s
testimony was inconsistent, there was sufficient corroborating
evidence so that it could appropriately rely upon Roe’s
testimony in reaching its verdict of guilty. For instance,
Brown maintained that he was a regular customer of Roe’s and
that he met Jones several times at Roe’s home. Not only that—
Brown testified that he had Jones’s telephone number, to
12
facilitate purchasing heroin directly from Jones, and that Brown
did indeed purchase heroin directly from Jones approximately
five times. Brown also testified that during the conspiracy,
before anyone was arrested, Roe identified Jones as his
supplier. Brown further declared that he knew to inquire about
the source of Roe’s heroin because Brown preferred the better
quality heroin that came from Jones. The district court also
found that Kinder corroborated Roe’s testimony inasmuch as she
saw that Jones was frequently at Roe’s home.
Finally, the district court found that Sines corroborated
Roe’s testimony. According to Sines, she received her heroin
from Roe, and Roe told her that it came from Detroit,
specifically from Jones. She also affirmed that although she
did not have any direct contact with Jones, she saw him at Roe’s
home when she was there. Roe would negotiate the transaction
with Sines, leave, go to where Jones was, and then return to
Sines with the drugs. Sines further offered that when Jones was
in town, Roe had drugs, but when Jones was out of town, Roe
often did not have drugs.
After an exhaustive review of the record, we are convinced
that there was sufficient, indeed overwhelming, evidence on
which to convict Jones. Although there were inconsistencies in
Roe’s testimony, it is the province of the district court, not
us, to resolve those inconsistencies. See Murphy, 35 F.3d at
13
148. Moreover, we are of the opinion, just as the district
court was, that there was ample corroboration by other evidence
to establish Jones’s guilt. Consequently, this is not a case
“where the prosecution’s failure is clear.” Jones, 735 F.2d at
791 (quoting Burks, 437 U.S. at 17) (internal quotation marks
omitted).
Jones briefly contends that the law enforcement officials
incorrectly determined the drug weights. The government fails
to address this argument directly. Suffice it to say, however,
that there was sufficient evidence, as detailed above, to
establish the threshold drug weight required to support Jones’s
conviction. Hence, we find no reversible error as to this
issue.
VI.
Jones also avers that the district court committed
reversible error at sentencing when it increased his offense
level for possession of a dangerous weapon, pursuant to U.S.S.G.
§ 2D1.1(b)(1); when it increased his sentencing range through
the use of certain criminal history information; and when it
refused to decrease his sentence.
We review sentences for reasonableness under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). Pursuant to this review, we are required to consider
14
both the procedural and substantive reasonableness of a
sentence. Id.; see also Lynn, 592 F.3d at 575. Properly
preserved claims of procedural error are subject to harmless-
error review. Lynn, 592 F.3d at 576. If the sentence is free
of significant procedural error, the appellate court reviews the
substantive reasonableness of the sentence. Id. at 575; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
judging the reasonableness of a sentence, we “review the
district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Hampton, 441 F.3d
284, 287 (4th Cir. 2006).
First, Jones avers that the district court erred when it
increased his offense level for possession of a dangerous weapon
pursuant to U.S.S.G. § 2D1.1(b)(1). According to Jones, “there
was insufficient testimony linking [him] to the weapon in
question and insufficient testimony linking the weapon in
question to the crime in question.”
We find that the district court did not commit clear error
in its factual finding that the gun at issue was connected to
Jones’s criminal activity. Factual determinations underlying
sentencing enhancements need be supported by only a
preponderance of the evidence, United States v. Miller, 316 F.3d
495, 503 (4th Cir. 2003), and the U.S.S.G. § 2D1.1 enhancement
is proper if the weapon was “present, unless it is clearly
15
improbable that the weapon was connected with the offense,”
U.S.S.G. § 2D1.1 cmt. n.3.
Roe testified that Jones brought the gun to his home and
left it with Roe during the conspiracy. According to Roe, Jones
asked if he could leave the gun at Roe’s home. Accordingly, it
is not clearly improbable that the weapon that officers
recovered at Roe’s home was connected to the offense here. As
such, imposition of the enhancement was appropriate.
Second, Jones states that the district court erred in
increasing his sentencing range through the use of certain
criminal history information. He contends that he properly
objected to the use of convictions that are over fifteen years
removed from the instant offense, but that the district court
committed reversible error by overruling his objections.
Section 4A1.2(e)(1) of the Sentencing Guidelines provides
the following:
Any prior sentence of imprisonment exceeding one year
and one month that was imposed within fifteen years of
the defendant’s commencement of the instant offense is
counted. Also count any prior sentence of imprisonment
exceeding one year and one month, whenever imposed,
that resulted in the defendant being incarcerated
during any part of such fifteen-year period.
U.S.S.G. § 4A1.2(e)(1). Moreover, § 4A1.2(k)(2) of the
Sentencing Guidelines sets forth, in relevant part, as follows:
Revocation of . . . parole . . . may affect the time
period under which certain sentences are counted as
provided in §4A1.2(d)(2) and (e). For the purposes of
16
determining the applicable time period, use the
following: (i) in the case of an adult term of
imprisonment totaling more than one year and one
month, the date of last release from incarceration on
such sentence . . . .
U.S.S.G. § 4A1.2(k)(2).
In 1987, Jones was convicted of a felony drug offense
involving heroin and was sentenced to a term of imprisonment
ranging from two to twenty years. Later that year, he escaped
from custody. He was arrested and convicted in 1990 of felony
escape and flight and was sentenced to a term of imprisonment of
two months to five years. In 1991, he was paroled, but
absconded from parole in 1992. He was arrested in 1994. He was
paroled again on August 16, 1995. His parole expired on August
16, 1997.
Jones’s sentence of imprisonment exceeded one year and one
month. Moreover, as noted, he was imprisoned until August 16,
1995. Hence, as the indictment on which he was convicted
alleges that he began distributing heroin in August 2008,
thirteen years after his release from prison, the commencement
of the instant offense obviously occurred within fifteen years
of his incarceration. As such, it was appropriate for the
district court to include the convictions as it did.
Third, according to Jones, the district court erred in
refusing to decrease his sentence. Jones argues that “[a]t the
time of his conviction, [he] had spent the majority of his life
17
out of trouble with the law. This fact was recognized by the
lower court but afforded no weight.” Jones then lists several
factors that he avers the district court failed to take into
account in determining his sentence.
At the sentencing hearing, the district court explained
that it had discretion to impose a sentence greater or lesser
than the Guidelines range. It further noted that the primary
factors to be considered in determining whether to exercise this
discretion were “the nature and circumstances of the offense and
the history and characteristics of the defendant.” Then after
commenting on Jones’s failure to abide by the conditions of
parole for his earlier convictions, as well as Jones’s being an
intelligent man with a family to support, the district court
stated that it could think of no justification for granting
Jones’s request for a variance.
We have long held that a defendant is unable to appeal the
district court’s decision not to depart downward from the
applicable sentencing Guidelines range. United States v.
Bayerle, 898 F.2d 28, 30 (4th Cir. 1990). Of course, that does
not preclude us from reviewing a sentence for reasonableness.
In fact, we are mandated to do so. United States v. Booker, 543
U.S. 220, 261 (2005). Here, Jones in essence alleges that his
sentence was unreasonable inasmuch as, according to him, the
district court failed to take into account several relevant
18
factors. Moreover, instead of contending that this issue is
unreviewable, the government maintains that the district court’s
decision not to grant the downward departure was reasonable.
Thus, in that both parties appear to be making a reasonableness
argument, we will briefly examine Jones’s sentence pursuant to
that same standard.
From our review of the record, we are firmly convinced that
the district court properly considered all of the appropriate
and relevant factors in fashioning Jones’s sentence. There is
nothing to suggest that Jones’s criminal history category
substantially overrepresented the seriousness of his criminal
history or the likelihood that he would reoffend. Consequently,
inasmuch as the district court imposed a sentence within the
Guidelines range—in fact the sentence was at the bottom end of
the Guidelines range—the sentence is reasonable. United States
v. Raby, 575 F.3d 376, 381 (4th Cir. 2009) (stating that in an
appellate court’s substantive review of a sentence, it is proper
for it to presume that a sentence is reasonable when it is
within the properly calculated Guidelines range).
VII.
Finally, Jones states that the district court committed
reversible error by presiding at his sentencing hearing, even
though Jones had filed a U.C.C. action against the district
19
court judge. We review the district court’s denial of a motion
to recuse for abuse of discretion. United States v. Cherry, 330
F.3d 658, 665 (4th Cir. 2003). But, as here, where the
defendant has failed to preserve his recusal argument in the
district court, we will review only for plain error. See Lynn,
592 F.3d at 577. Thus, in considering this claim, we initially
seek to determine whether Jones has demonstrated (1) that the
trial court erred, (2) that the error is clear and obvious, and
(3) that the error affected his substantial rights. See Olano,
507 U.S. at 732-34.
Jones attests that before the district court judge
sentenced him, it learned that Jones had filed a civil action
against him. Jones contends that “[w]hen this fact is combined
with the fact that the trial judge had previously ruled against
Mr. Jones on virtually every issue that had been presented to
him throughout the course of the trial, the appearance of
impropriety can become greater.”
Although recusal is appropriate when a judge’s
“impartiality might reasonably be questioned,” see United States
v. Mitchell, 886 F.2d 667, 671 (4th Cir. 1989) (quoting 28
U.S.C. § 455(a)) (internal quotation marks omitted), “judicial
rulings alone almost never constitute a valid basis for a bias
or partiality motion,” see United States v. Lentz, 524 F.3d 501,
530 (4th Cir. 2008) (quoting Liteky v. United States, 510 U.S.
20540, 555 (1994)) (internal quotation marks omitted). Except for
his dissatisfaction with the district court’s rulings, Jones
fails to point to any evidence providing a basis to question the
judge’s impartiality. See Mitchell, 886 F.2d at 671. Moreover,
he has neglected to point to any prejudice that he suffered as a
result of it. In fact, the district court sentenced Jones at
the low end of the Guidelines range. Consequently, there is no
basis on which we can find that the district court judge’s
failure to recuse himself constituted error, plain or otherwise.
VIII.
In light of the foregoing, Jones’s conviction and sentence
are hereby affirmed.
AFFIRMED
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