United States v. Scales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4416
ANTHONY SCALES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CR-98-114)
Submitted: November 7, 2000
Decided: January 30, 2001
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank Salvato, Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Alessandra DeBlasio, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SCALES
OPINION
PER CURIAM:
Anthony Scales appeals from his criminal judgment of conviction
after a three day jury trial. The jury found him guilty of: Count 1, dis-
tribution of crack cocaine, 21 U.S.C.A. § 841(a)(1) (West 1999);
Count 2, use and carry of a firearm during a crime of violence or drug
trafficking offense, 18 U.S.C.A. § 924(c) (West 2000); Count 3, pos-
session with intent to distribute crack cocaine, 21 U.S.C.A.
§ 841(a)(1); Count 4, use and carry of a firearm during a crime of vio-
lence or drug trafficking offense; Count 5, possession of a firearm by
a convicted felon, 18 U.S.C.A. § 922(g)(1) (West 2000); Count 6,
obstruction of justice, 18 U.S.C.A. § 1503(a) (West 2000); Count 7,
attempted killing of a witness (tampering) and aiding and abetting, 18
U.S.C.A. §§ 1512(a)(1), 1512(h) & 2 (West 2000); Count 8, obstruc-
tion of justice, 18 U.S.C.A. §§ 1503(a), 1512(h) & 2; Count 9, use
and carry of a firearm during a crime of violence or drug trafficking
offense, 18 U.S.C.A. § 924(c); Count 11, possession with intent to
distribute crack cocaine, 21 U.S.C.A. § 841(a)(1). Scales received a
life sentence, plus forty-five years.
On appeal, Scales alleges that the district court erred by: (1) deny-
ing his motion to suppress evidence and his photographic identifica-
tion; (2) admitting testimony under Fed. R. Evid. 404(b); (3) denying
his motion to quash a grand jury subpoena; (4) denying his challenge
under Batson v. Kentucky, 476 U.S. 79 (1986); (5) denying his
motions for acquittal for Counts 2 and 4 of the indictment; and (6)
sentencing him to a life conviction under 18 U.S.C.A. § 3559 (West
2000). Finally, in his pro se supplemental brief filed with the court,
Scales alleges that his § 841 sentences are improper based upon the
Supreme Court’s recent opinion in Apprendi v. New Jersey, 120 S. Ct.
2348 (2000). For the reasons that follow, we affirm.
First, we do not find that the district court’s factual findings regard-
ing Scales’ motions to suppress the gun and drugs found on his person
were clearly erroneous or that its ultimate decision to deny these
motions was reversible error. See United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992). Likewise, we find no reversible error in the
court’s decision to deny his motion to suppress his identification by
UNITED STATES v. SCALES 3
the victim from a single photograph. See United States v. Wilkerson,
84 F.3d 692, 695 (4th Cir. 1996).
Second, we do not find that the court abused its discretion, see
United States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991), by denying
Scales’ motion to preclude evidence at trial, that he alleged was in
violation of Fed. R. Evid. 404(b). We have reviewed the record and
do not find that the court’s decision to allow the evidence was "arbi-
trary or irrational." United States v. Powers, 59 F.3d 1460, 1464 (4th
Cir. 1995) (citation omitted).
Third, Scales alleges that the district court should have granted his
motion to suppress a grand jury subpoena seeking a tape-recorded
statement made by the victim referenced in Count 6 in the presence
of Scales’ former attorney. Scales argued that because the victim
recanted her earlier statement (that Scales had attempted to kill her)
in the presence of Scales’ and his former attorney, this statement was
subject to the attorney-client privilege. See In re Grand Jury Sub-
poena, 102 F.3d 748, 750 (4th Cir. 1996). However, the district court
properly found that the crime-fraud exception to the privilege applied
in this circumstance and thus denied the motion. Id. at 750-51.
Fourth, Scales alleges that the district court erroneously denied his
motion during voir dire that the prosecutor struck a potential juror
because of her race in violation of Batson. Our review of the record,
however, does not disclose that the district court clearly erred in find-
ing the prosecution’s explanation for striking the juror was race-
neutral, see United States v. Grimmond, 137 F.3d 823, 833-34 (4th
Cir. 1998), or in applying the proper Batson analysis. See Purkett v.
Elem, 514 U.S. 765, 767-68 (1995).
Fifth, Scales alleges that his motions for acquittal on Counts 2 and
4 should have been granted. To the extent that he alleges the evidence
was insufficient to support the convictions, this claim fails as the evi-
dence viewed in the light most favorable to the government was suffi-
cient for a rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt. See Glasser v. United States, 315
U.S. 60, 80 (1942) (stating review standard); United States v. Mitch-
ell, 104 F.3d 649, 653-54 (4th Cir. 1997) (listing elements of the
offense). The fact that the gun involved in both counts may have been
4 UNITED STATES v. SCALES
the same is not a violation of double jeopardy. See United States v.
Camps, 32 F.3d 102, 106-07 (4th Cir. 1994).
Next, Scales argues that his 1981 robbery conviction was not a
proper predicate for his life sentence under 18 U.S.C.A. § 3559(c).
This claim fails for several reasons. First, the panel opinions that
Scales relies upon for this argument have been vacated by their
respective en banc courts. See United States v. Kaluna, 192 F.3d
1188, 1197-98 (9th Cir. 1999) (en banc), cert. denied, 120 S. Ct. 1561(2000); United States v. Gatewood, 230 F.3d 186 (6th Cir. 2000) (en
banc). Second, because Scales failed to object to this sentence in the
district court, we only review this issue for plain error, see United
States v. Fant, 974 F.2d 559, 564-65 (4th Cir. 1992), and we find no
such error.
Finally, in materials filed under Fed. R. App. P. 28(j), Scales
alleges that his drug sentences are invalid under Apprendi. However,
because the sentences Scales received for these convictions are below
the statutory maximum, they are unaffected by Apprendi. See United
States v. Angle, 230 F.3d 113 (4th Cir. 2000) (only sentences above
statutory maximum need be vacated under Apprendi).
Accordingly, we affirm Scales’ convictions and sentence. We dis-
pense 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