United States v. Quenell Walters

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUENELL WALTERS,
Defendant - Appellant.
No. 07-4600
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
P. W. FERGUSON, a/k/a P. W., a/k/a Patrick William Ferguson,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (3:06-cr-00061-JFA-20; 3:06-cr-00061-JFA-6)
Argued: September 25, 2009 Decided: October 29, 2009
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Bruce Betts, Columbia, South Carolina; James
Arthur Brown, LAW OFFICES OF JIM BROWN, PA, Beaufort, South
Carolina, for Appellants. Jimmie Ewing, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: James H. Babb, HOWLE & BABB, LLP, Sumter, South Carolina,
for Appellant Quenell Walters. W. Walter Wilkins, United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Quenell Walters and P.W. Ferguson appeal their
convictions for (1) conspiring to possess with intent to
distribute and distribute cocaine base and (2) possessing with
intent to distribute and distributing cocaine base. Ferguson
also appeals his mandatory life sentence. Finding no error, we
affirm.
I.
From 2000 until 2005 the Columbia, South Carolina,
Police Department and the FBI ran a joint investigation of drug
activities in the McDuffie Street neighborhood of Columbia.
Drug dealing in the neighborhood was tightly controlled. Only
members of the Bloods street gang or persons who lived or grew
up in the neighborhood could sell drugs there. Any outsider who
attempted to sell drugs in the area was beaten.
Walters was a member of the Bloods gang. Over a two-
month period Nickolas Guild sold at least one hundred grams of
crack to Walters on a street adjoining McDuffie. Walters resold
this crack. Ferguson lived in Loretta Brown’s house on McDuffie
Street. Brown’s house was used as a central gathering spot and
safe haven for drug traffickers. Jerblonski Addison sold crack
to Ferguson on a daily basis over a couple of years; these sales
totaled at least fifty grams. Guild sold at least 50 grams of
crack to Ferguson, and Guild saw Ferguson sell crack on McDuffie
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Street on a daily basis. Debra Brown, an informant, videotaped
both Walters and Ferguson participating in a crack transaction
on McDuffie Street.
Walters and Ferguson were charged in two counts of a
twenty-eight count indictment returned against twenty-one
individuals by a federal grand jury on January 17, 2006. Count
1 charged both defendants with conspiring to possess with intent
to distribute and distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and
846. Counts 16 and 22 charged Ferguson and Walters,
respectively, with possessing with intent to distribute and
distributing a quantity of cocaine base, and in aiding and
abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)
and 18 U.S.C. § 2.
The other nineteen co-conspirators charged in the
indictment pled guilty. Walters and Ferguson were tried
together, and on February 15, 2007, the jury found them guilty
of the counts charged. The district court sentenced Walters to
a mandatory minimum prison term of 240 months and sentenced
Ferguson to a mandatory term of life in prison.
Walters and Ferguson appeal their convictions, and
Ferguson appeals his life sentence.
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II.
A.
Walters argues that admitting evidence of his
membership in the Bloods street gang violated his First
Amendment right of assembly. Both defendants argue that
allowing testimony about the Bloods street gang was irrelevant
and resulted in unfair prejudice. We review the admission of
this evidence for abuse of discretion. United States v.
Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
The district court did not abuse its discretion in
allowing evidence of Walters’ gang association. The First
Amendment does not bar evidence of a person’s associations when
it provides a link to criminal activity. “Assessing the
probative value of common membership in any particular group,
and weighing any factors counseling against admissibility is a
matter first for the district court’s sound judgment under Rules
401 and 403.” United States v. Abel, 469 U.S. 45, 54 (1984).
The evidence of Walters’ membership in the Bloods gang was
relevant to the conspiracy charge because the gang controlled
the drug activity in the McDuffie Street area. Those who were
not Bloods were not allowed to sell drugs in the area unless
they grew up there or lived there. The district court did not
abuse its discretion in deciding that the probative value of
evidence about Walters’ membership in the gang and the gang’s
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power of exclusion was not substantially outweighed by the
danger of unfair prejudice. See Fed. R. Evid. 403.
B.
The defendants next challenge the district court’s
refusal to allow them to introduce evidence that no cooperating
government witness took or was required to take a polygraph.
According to the defendants, this ruling violated their
constitutional rights to confront adverse witnesses, to
effective assistance of counsel, and to due process of law.
In this circuit the results of a polygraph are not
admissible to impeach the credibility of a witness. United
States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997). If the
results of a polygraph examination cannot be used to impeach a
witness, it follows that the absence of a polygraph cannot be
used for impeachment either. It was not an abuse of discretion
for the district court to disallow evidence that no cooperating
witness took a polygraph test.
C.
The defendants requested a verdict form (or jury
interrogatories) that would have required the jury to make a
specific drug quantity determination as to the overall
conspiracy and as to each defendant. The district court denied
these requests. Instead, the court –- with respect to the
overall conspiracy and each defendant -- submitted
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interrogatories that allowed the jury to find drug quantity
ranges corresponding to the penalties prescribed in 21 U.S.C.
§ 841(b).
The defendants argue that the interrogatories violated
their Sixth Amendment right to a jury trial. Citing Apprendi v.
New Jersey, 530 U.S. 466 (2000), the defendants argue that the
jury should have been permitted to determine specific drug
quantities rather than the ranges specified in the
interrogatories. “We review allegations of a constitutionally
defective jury instruction de novo.” United States v. Stitt,
250 F.3d 878, 888 (4th Cir. 2001). This attack on the
interrogatories has no merit. There is no authority for
requiring the jury to find the exact quantifies of drugs
involved. The drug quantity ranges listed in the
interrogatories properly reflected the same ranges listed in 21
U.S.C. § 841(b).
D.
Next, the defendants challenge the district court’s
jury instruction on the conspiracy charge. Because this
argument was not raised at trial, our review is for plain error.
United States v. Reid, 523 F.3d 310, 315 (4th Cir. 2008).
The defendants contest the district court’s
instruction that if the jury found both defendants guilty of the
conspiracy charge, then the quantity of cocaine it found
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attributable to the conspiracy for each defendant had to “match
up, because we are talking about the same conspiracy.” J.A.
746. First, the defendants argue that this served to direct a
verdict on whether the evidence proved a single conspiracy or
multiple conspiracies. This argument fails because there was no
evidence that either defendant’s actions related to a conspiracy
separate from the McDuffie Street conspiracy. A multiple
conspiracy instruction is not required if there is no proof of
multiple conspiracies. See United States v. Nunez, 432 F.3d
573, 578 (4th Cir. 2005). Second, the defendants argue that the
instruction prevented the jury from making an independent
determination of the weight of drugs attributable to each
defendant as a member of the conspiracy. See United States v.
Collins, 415 F.3d 304 (4th Cir. 2005). We disagree. The
district court complied with circuit law in instructing the
jury. The court instructed the jury that it needed to determine
(1) whether “the government has proved beyond a reasonable doubt
that the defendant participated in a conspiracy,” (2) “the
amount of cocaine base that the government has proved beyond a
reasonable doubt is attributable to the entire conspiracy,” and
(3) “the amount of cocaine base that the government proved
beyond a reasonable doubt is attributable to each defendant
found to be a member of the conspiracy himself as an individual
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member of the conspiracy.” J.A. 731-32. The conspiracy
instruction, taken as a whole, was not erroneous.
E.
Walters claims a Brady and Giglio violation because
the district court refused to require the government to disclose
FBI agent Rodney Crawford’s notes of his interrogation of
Walters. See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.
United States, 405 U.S. 150 (1972). The 302 report prepared by
Agent Crawford reflected that Walters admitted his membership in
the Bloods gang, and Agent Crawford testified to that effect.
Walters -- through an oral statement made by his counsel --
denied that he had made such an admission to Agent Crawford.
Walters did not offer a sworn denial, nor did he ask the
district court to conduct any in-camera review of Agent
Crawford’s notes. In any case, Walters argues that the notes
should have been made available for impeachment purposes.
To succeed on a Brady claim, the defendant must show
“that prejudice resulted from the suppression.” Vinson v. True,
436 F.3d 412, 420 (4th Cir. 2006). Here, even if it is assumed
that the interview notes should have been produced, Walters has
not shown prejudice. Both Danny Sims and Nickolas Guild
testified that Walters was a member of the Bloods gang. Thus,
Agent Crawford’s testimony that Walters admitted to his
membership in the Bloods gang was cumulative evidence. The
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district court’s refusal to require the government to turn over
Agent Crawford’s notes of his interrogation of Walters therefore
did not result in any prejudicial error under Brady and Giglio.
F.
Finally, Ferguson argues that his trial counsel was
ineffective for failing to contest the mandatory life sentence
imposed by the district court. The court was required to
sentence Ferguson to a life term if he violated 21 U.S.C.
§ 841(b)(1)(A) after having two or more prior felony drug
convictions that had become final.
An ineffective assistance of counsel claim is not
cognizable on direct appeal “unless it conclusively appears from
the record that defense counsel did not provide effective
representation.” United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008).
Ferguson argues that his trial counsel was ineffective
for: (1) failing to object to the life sentence enhancement or
to request an enhancement hearing; (2) failing to challenge the
district court’s consideration of an uncounseled prior
conviction; (3) failing to argue that Ferguson did not enter
into the § 841 conspiracy after his prior felony drug
convictions became final; and (4) failing to request a jury
determination of the dates of Ferguson’s participation in the
§ 841 conspiracy.
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Ferguson admits that his 1998 felony drug conviction
was properly considered as a predicate offense. He claims,
however, that his 1999 drug conviction was invalid because he
was not represented by counsel and that his 2002 and 2004 drug
convictions occurred after he was no longer participating in the
§ 841 conspiracy. Thus, he claims that his trial counsel was
ineffective for not challenging the use of these convictions for
enhancement purposes. Two prior felony drug convictions meant a
mandatory life sentence for Ferguson. Because he admits to one
prior conviction, all of his other convictions would have to
have been invalidated as sentence enhancers for his counsel to
have succeeded in challenging the mandatory life sentence.
Therefore, if just one of the other convictions was valid,
Ferguson’s counsel would not have been ineffective for failing
to challenge the enhancement.
With respect to the 1999 conviction, Ferguson points
out that his presentence report (PSR) does not reflect that he
had counsel. The PSR simply quotes a South Carolina statute
stating that indigent defendants are entitled to counsel. Thus,
while we do not know whether Ferguson actually had counsel, we
have no basis to determine that this conviction was definitively
invalid for enhancement purposes due to lack of counsel. As a
result, the record does not conclusively show that Ferguson’s
counsel in this case rendered ineffective assistance in failing
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to challenge the use of his 1999 conviction. In light of the
1998 conviction and the absence of a showing that the 1999
conviction cannot be counted to enhance Ferguson’s sentence, we
cannot say that “it conclusively appears from the record that
defense counsel did not provide [Ferguson] effective
representation” in failing to challenge the predicate
convictions for the § 841 enhancement. Benton, 523 F.3d at 435.
Ferguson’s ineffective assistance claim must therefore be
rejected in this direct appeal.
III.
For the foregoing reasons, Walters’ and Ferguson’s
convictions and Ferguson’s sentence are
AFFIRMED.
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