United States v. Grover

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5903
CHARLES L. GROVER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5937
CHRISTOPHER HARRIS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5096
CHARLES DORSEY,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-93-228-L)
Argued: November 3, 1995
Decided: May 6, 1996
Before MICHAEL and MOTZ, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland; Harry D. McKnett, Columbia, Mary-
land; Donald Henry Feige, Baltimore, Maryland, for Appellants.
Thomas Michael DiBiagio, Assistant United States Attorney, Balti-
more, Maryland, for Appellee. ON BRIEF: James K. Bredar, Federal
Public Defender, Martin Bahl, Staff Attorney, Baltimore, Maryland,
for Appellants. Lynne A. Battaglia, United States Attorney, Balti-
more, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Defendants Charles Dorsey, Charles Grover, and Christopher Har-
ris were tried together and convicted of conspiracy to distribute crack
cocaine in violation of 21 U.S.C. § 846. Dorsey was also convicted
of distribution of crack cocaine in violation of 21 U.S.C. § 841.
Defendants appeal their convictions on numerous grounds, and defen-
dant Grover also appeals his sentence. For the following reasons, we
affirm in all respects.
I.
The indictment charged the defendants (along with Kenny Dorsey,
who remains a fugitive) with participating in a conspiracy to distrib-
ute crack cocaine in Maryland from September 1991 to July 1993.
The evidence presented at trial showed that Kenny Dorsey was
responsible for multiple shipments of cocaine (totalling eighty kilo-
2
grams) from California to Maryland. Charles Dorsey (nephew of
Kenny) served as the "distribution point" in Maryland. Charles Gro-
ver acted as a courier on three shipments (totalling eight kilograms).
The Dorseys supplied Tracy Washington with the cocaine. Washing-
ton, along with Michael Walker, would sell distributable quantities to
various individuals including Christopher Seymour, Johnny Johnson,
Darius Bevins, and defendant Christopher Harris.
In April 1992 police arrested Seymour who, in turn, implicated
Walker. In May 1993 police arrested Walker, and he agreed to act as
a confidential informant. Walker made two purchases of crack
cocaine from Charles Dorsey and Washington; the purchases were
recorded on video tape. Also, Walker recorded conversations with
Charles Dorsey and Washington.
While no video or recordings were made of Grover or Harris, in
June 1993 Harris (who was a mailman) was driving a car in which
Washington was a passenger when the Government recorded a tele-
phone conversation between Washington and Walker concerning
drugs. During the conversation, Walker asked Washington if he had
the "mailman" with him and Washington responded that he did.
Washington and Walker then joked about how "Chris" (i.e., Christo-
pher Harris) drives like a mailman. In a second conversation between
Walker and Washington, recorded in July 1993, Washington told
Walker that he was trying to get rid of "three dirt bikes." Walker
replied: "Give it to the post office." Washington then stated: "[he] or
[they] already holding." According to trial testimony, "dirt bikes"
referred to cocaine, "post office" meant Christopher Harris, and "al-
ready holding" meant that Harris already had some cash or cocaine.
Also, there was evidence showing multiple telephone calls and pager
activations from Washington to Harris.
As for Grover, motel, credit card, telephone, and car rental records
confirm that he was in the Baltimore area at the time he was alleged
to have delivered cocaine from California.
In July 1993 the police arrested Washington, Johnson, and Bevins.
All three agreed to act as cooperating witnesses in exchange for
reduced sentences.
3
In August 1993 Charles Grover was arrested at the Ontario, Cali-
fornia, airport. In Grover's suitcase police found pillows, fabric
softener,1 and approximately $154,000 in cash, which was wrapped in
plastic with rubber bands. During a search of Grover's home, the
police found guns, ammunition, and other suitcases containing pil-
lows and fabric softener. (The parties refer to this evidence as the
"California evidence.")
At trial Walker claimed that he and Washington would deliver dis-
tributable quantities of crack cocaine to Harris. According to Walker,
he would drop off cocaine with Harris and collect cocaine debts. And,
when initially debriefed in May 1993 by Special Agent Jeffrey Silk
of the Drug Enforcement Agency, Walker stated that Washington
would distribute cocaine to a postal worker, though Walker did not
expressly mention Harris by name. Walker did not, however, know
where and to whom Harris was allegedly selling the cocaine.
In addition, Walker testified that on several occasions from the
spring through the fall of 1992, he met drug couriers at motels in the
Baltimore area. The couriers, including Charles Grover, would deliver
cocaine coming from Kenny Dorsey in California. Charles Dorsey
monitored shipments from California to Maryland and handled the
money sent back to California. Walker described six shipments that
arrived in 1992 and said that Charles Dorsey and Charles Grover were
involved in these shipments.
Washington testified that Harris purchased cocaine from him on
consignment, at first buying an ounce a month, and later taking 4 1/2
ounces per month. Washington also testified that he would meet Har-
ris at a car wash or send Walker to deliver the cocaine. Washington,
like Walker, did not know what Harris did with the cocaine.
Washington testified that he purchased drugs from Kenny Dorsey
and identified Charles Dorsey and Charles Grover as persons
involved in distribution.
_________________________________________________________________
1 Evidently, drug traffickers often use fabric softener to help disguise
the smell of contraband.
4
Johnny Johnson testified that he purchased cocaine from Charles
Dorsey. Darius Bevins testified that he would meet Washington at the
car wash to purchase drugs. Bevins said he saw Harris meet with
Washington at the car wash, though Bevins was unable to say that he
saw Harris buy or possess drugs.
The jury convicted the defendants. At sentencing, Charles Dorsey
received 235 months imprisonment; Charles Grover received 151
months; Christopher Harris received 78 months. This appeal fol-
lowed.
II.
Defendants Grover and Dorsey claim that the district court erred
when it allowed the Government to introduce the"California evi-
dence" over defendants' objection as substantive evidence of the
charged conspiracy. Again, such evidence includes $154,000 seized
from Grover at the Ontario Airport, the materials Grover used in his
attempt to hide the money (e.g., pillows and fabric softener), and the
firearms and ammunition found at Grover's home.
The defendants argue that the California evidence is not relevant
under Rule 401 of the Federal Rules of Evidence and therefore not
admissible under Rule 402 because it was seized in August 1993, a
month after the charged conspiracy ended, and was unrelated to the
drug trafficking activities that transpired in Maryland. The defendants
also argue that even if the evidence is admissible under Rule 402, the
court should have excluded the evidence under Rule 403, which gives
the court discretion to exclude evidence when its probative value will
be substantially outweighed by the danger of unfair prejudice. The
defendants further argue that even if the evidence was admissible, it
was only admissible as "other crimes" evidence under Rule 404(b)
and that the district court's failure to give a limiting instruction under
Rule 105 constitutes reversible error.
We review the decision of a district court to admit evidence for
"abuse of discretion." United States v. Gravely, 840 F.2d 1156, 1162
(4th Cir. 1988). The indictment in this case charged a conspiracy to
distribute crack cocaine "[f]rom on or about September of 1991,
through in or about July of 1993, in the State and District of Maryland
5
. . . ." Because the California evidence was seized in August of 1993,
the seizure clearly occurred after the charged conspiracy concluded.
Moreover, the Government did not argue to the district court, nor did
it argue to this court, that the money seized was proceeds of the drug
trafficking activities in Maryland.
Rather, the Government's theory is that the California evidence
was properly admitted because the conspiracy charged in the indict-
ment was part of a larger and more extensive narcotics conspiracy
involving Kenny Dorsey and Charles Grover. This larger conspiracy
continued past July of 1993 and involved narcotics trafficking
throughout the United States. In addition, the California evidence was
admissible because it corroborated the testimony of Walker and
Washington that Grover acted as a drug courier for Kenny Dorsey
during the course of the conspiracy charged in the indictment.
We hold that it was not an abuse of discretion to admit the Califor-
nia evidence as substantive evidence of the crime charged. While
Rule 402 prohibits the introduction of evidence that is not relevant,
Rule 401 provides that "``[r]elevant evidence' means evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would be without the evidence." The Government therefore could
introduce evidence that had any tendency to show the existence of the
charged conspiracy and evidence that had any tendency to show Gro-
ver's role in that conspiracy.
The California evidence did both those things. It placed the
charged conspiracy in the context of the larger conspiracy of which
the charged conspiracy was a component part. Likewise, it buttressed
the testimony of Walker and Washington that established Grover's
role in the conspiracy, because it showed that Grover acted as a drug
courier in a larger conspiracy which included Grover's trafficking
activities in Maryland. See, e.g., United States v. Kennedy, 32 F.3d
876, 885 (4th Cir. 1994) ("evidence of uncharged conduct is not con-
sidered ``other crimes' evidence if it arose out of the same series of
transactions as the charged offense, . . . or if it is necessary to com-
plete the story of the crime on trial") (citation and internal quotes
omitted), cert. denied, 115 S. Ct. 939 (1995). Thus, the California evi-
dence was admissible.
6
We also hold that it was not an abuse of discretion for the district
court to refuse to exclude the California evidence under Rule 403.2
That rule is concerned with evidence that is unfairly prejudicial. Here,
the Government does not run afoul of Rule 403. As we have already
said, the California evidence helped place the charged conspiracy in
the context of the larger conspiracy of which the charged conspiracy
was a component part.
Furthermore, because we hold that the evidence was admissible to
prove the existence of the conspiracy charged in the indictment, the
California evidence is not "other crimes" evidence within the meaning
of Rule 404(b). See Kennedy, 32 F.3d at 885. No limiting instruction
under Rule 105 was therefore necessary.3
_________________________________________________________________
2 Rule 403 provides that:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by con-
siderations of undue delay, waste of time, or needless
presentation of cumulative evidence.
3 Grover also claims that the district court erred when it denied his prior
motion to suppress the California evidence. That claim is meritless. As
an initial matter, Grover has a standing problem; at the suppression hear-
ing he denied that he owned the suitcase containing the money. Accord-
ingly, he cannot challenge the Government's search and seizure of the
evidence. In addition, even if Grover has standing, there was ample evi-
dence establishing probable cause to detain and arrest Grover and for the
issuance of a warrant to search the suitcase. In particular, the police had
been notified that there was a suspected narcotics trafficker (an R. Green)
on Grover's plane; Los Angeles Police Department records revealed that
an individual by the name of "R. Green" was suspected of heroin smug-
gling; Grover was sitting in the seat assigned to R. Green; Grover
matched the description of R. Green; and Grover's $1200.00 airline
ticket had been purchased in cash. Also, when the police approached
Grover (but before he was arrested), the police could smell the odor of
fabric softener, which is used by drug couriers to conceal other smells;
Grover stated that he did not possess an airline ticket; Grover did not
have identification that matched his seat assignment or the tag on the
suitcase; a check of computer records showed that Grover was a sus-
pected drug trafficker; and a narcotics dog alerted on the suitcase. After
the police obtained a search warrant and opened the suitcase, they found
7
III.
Christopher Harris contests his conviction on three grounds. He
claims that the district court abused its discretion when it denied his
request to introduce evidence showing that Tracy Washington had
previously been involved in a drug transaction with a postal employee
other than himself. Harris also claims, along with Grover and Dorsey,
that during closing argument to the jury the prosecutor impermissibly
vouched for the credibility of the Government's chief witnesses by
expressly stating that the witnesses' testimony was truthful. While
defense counsel failed to object to the prosecutor's vouching at the
time the statements were made, the defendants argue that the prosecu-
tor's vouching constitutes plain, reversible error. Finally, Harris
claims that the district court erred when it refused to instruct the jury
that a mere buyer-seller relationship does not constitute sufficient evi-
dence to support a conviction for conspiracy to distribute narcotics.
As discussed below, we find that the district court did not abuse its
discretion when it excluded proffered testimony that Washington
dealt drugs with a postal employee other than Harris, and we further
reject the claim that Harris was entitled to the buyer-seller instruction
under the circumstances presented here. As for the claimed vouching,
while we think that it is clear that the prosecutor's remarks were
improper and not to be countenanced, we hold that in light of the
entire proceedings the remarks were not so prejudicial as to under-
mine the trial's fundamental fairness with respect to any of the defen-
dants. We therefore conclude that the remarks do not constitute
reversible error.
_________________________________________________________________
approximately $154,000 in cash; the cash was bound in bundles with
rubber bands and wrapped in numerous scented fabric softener sheets.
Based on the police detectives' training, knowledge, and experience, they
believed that such packaging reflected a method used by individuals in
drug trafficking to transport drug proceeds. They then arrested Grover.
Given these facts, the district court did not err when it refused to sup-
press the California evidence.
8
A.
The direct evidence linking Harris to the charged conspiracy
included (1) the June 1993 and July 1993 audio tapes of conversations
between Washington and Walker with their references to "mailman,"
"post office" and "dirt bikes" and (2) the testimony of Washington
and Walker concerning Harris's participation in the charged conspir-
acy. At trial, both Washington and Walker testified that "post office"
meant Harris, and, on direct examination by the prosecution, Wash-
ington testified that he was not dealing drugs with any mailman other
than Harris. Also, while Walker failed to identify Harris by name in
his initial debriefings with the DEA after his arrest in May 1993,
Walker stated that Washington dealt drugs to a mailman.4
Throughout trial Harris's defense was that he was completely inno-
cent of any drug dealings with Washington and Walker. To establish
that Harris was not the "post office" and to impeach Washington and
Walker, counsel for Harris sought to introduce evidence that another
postal employee, Moses Norfleet, had brokered a drug deal for Wash-
ington in June 1991, a few months prior to the time the charged con-
spiracy commenced. Evidently, Norfleet had arranged for Washington
to sell a distributable quantity of cocaine to Troy Sneed.
Defense counsel first attempted to elicit testimony from Washing-
ton on cross-examination that he knew Norfleet. Washington denied
knowing Norfleet. Next, defense counsel attempted to show that Nor-
fleet was a postal employee and that Norfleet had brokered a sale of
cocaine for Washington. The latter was to be established through the
testimony of Police Detective Edward J. Fox, Jr. of the Baltimore City
Police Department. Detective Fox had arrested Washington in con-
nection with the sale.
The district court denied defense counsel's request to introduce the
testimony of Detective Fox because (1) the prosecution had not intro-
duced evidence connecting Harris to the transaction with Norfleet; (2)
at most, the evidence was impeachment to show that Walker was talk-
_________________________________________________________________
4 When Special Agent Silk of the DEA debriefed Walker in May 1993,
he surmised that Harris was the mailman to whom Walker was referring
because there were records of multiple telephone calls between Harris
and Washington.
9
ing about Norfleet when he was first debriefed; and (3) the issue was
actually brought into the case through the cross-examination of
Walker. Thus, according to the district court, the evidence was irrele-
vant and improper impeachment.
Again, we review the district court's decision to admit (or exclude)
evidence for abuse of discretion. Moreover, while the Constitution
guarantees a defendant "the right to put before a jury evidence that
might influence the determination of guilt," Pennsylvania v. Ritchie,
480 U.S. 39, 56 (1987), such evidence must be both relevant and
admissible. United States v. Powers, 59 F.3d 1460, 1470 (4th Cir.
1995), cert. denied, 116 S. Ct. 784 (1996).
The evidentiary issue presented here raises questions involving
dual relevancy, impeachment evidence, and collateral evidence. As
we have explained, evidence is relevant under Federal Rule of Evi-
dence 401 if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more proba-
ble or less probable than it would be without the evidence." Evidence
has dual relevance if it admissible for more than one purpose. There-
fore, when such evidence is inadmissible for one of its intended pur-
poses, that fact does not necessarily render the evidence inadmissible
for the other purpose. For example, while extrinsic evidence offered
to impeach the credibility a witness is inadmissible under Federal
Rule of Evidence 608(b),5 if such evidence is also relevant and admis-
sible for some other purpose, then it may be introduced. See, e.g.,
United States v. Abel, 469 U.S. 45, 56 (1984) ("It would be a strange
rule of law which held that relevant, competent evidence which
tended to show bias on the part of a witness was nonetheless inadmis-
sible because it also tended to show that the witness was a liar.");
_________________________________________________________________
5 Rule 608(b) provides in pertinent part:
(b) Specific instances of conduct. Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
the witness' credibility, other than conviction of crime as pro-
vided in Rule 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness' character
for truthfulness or untruthfulness . . . .
10
United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 531
(4th Cir.) ("Rule 608(b) should not be read so broadly as to disallow
the presentation of extrinsic evidence that is probative of a material
issue in a case."), cert. denied, 474 U.S. 1005 (1985).
While falling within Rule 608(b), impeachment by contradiction is
evidence that has dual relevance. It is offered not only to impeach the
credibility of a witness but it is also offered to prove some material
fact at issue in the case, or it is independently admissible to impeach
by showing such things as bias. See 3 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Evidence ¶ 608[05], at 608-50 to 608-54
(1995) (commenting that "[c]ounsel and courts sometimes have diffi-
culty in distinguishing between Rule 608 impeachment and impeach-
ment by contradiction"). District courts should, however, exclude
extrinsic evidence which seeks to impeach by contradiction when the
fact that the evidence supports or undermines is collateral or irrele-
vant to the material issues in the case. See, e.g., United States v.
Koziniski, 16 F.3d 795, 805-07 (7th Cir. 1994) (finding no abuse of
discretion when district court excluded extrinsic evidence that
attempted to provide background information on drug conspiracy
when true purpose of evidence was to show that witness was a liar);
United States v. Phillips, 888 F.2d 38, 41-42 (6th Cir. 1989) (finding
no abuse of discretion when district court excluded extrinsic evidence
showing bias of Government witnesses because evidence involved a
remote matter unrelated to the charges against the defendant); United
States v. Ling, 581 F.2d 1118, 1120-21 (4th Cir. 1978) (reversible
error for district court to admit extrinsic evidence that was collateral
to the charges upon which the defendant was accused and which was
offered to attack the credibility of the defendant). See also United
States v. Tate, 715 F.2d 864, 865 n.2 & 866 (4th Cir. 1983) (revers-
ible error for district court to admit extrinsic evidence that defendant
possessed a different gun on a previous occasion because such evi-
dence was not relevant to issue of whether defendant knew he was
carrying guns in the trunk of his wife's car).
Here, to the extent that defense counsel sought to introduce the tes-
timony of Detective Fox in order to impeach the credibility of Wash-
ington and Walker, Rule 608(b) clearly precludes its admission.
While defense counsel was free to ask both Washington and Walker
on cross-examination whether they had dealt with postal employees
11
other than Harris in an attempt to undermine their credibility, once
Washington and Walker testified to the contrary, defense counsel
could not introduce extrinsic evidence solely for the purposes of
impeachment. Indeed, so long as the proffered testimony of Detective
Fox involved matters collateral or irrelevant to the material issues in
the case, the district court could exclude such testimony even though
the Government had asked Washington on direct examination if he
had dealt with mailmen other than Harris.
Accordingly, we must answer whether the testimony of Detective
Fox is relevant for the purpose of showing that when Washington and
Walker discussed giving drugs to the "post office" in July 1993, they
meant someone other than Harris. Likewise, we must answer whether
such evidence is relevant for purposes of showing that when Walker
mentioned a postal worker in his initial debriefings in May 1993, he
meant someone other than Harris.
As to both these questions, we are dealing with material issues in
the case. In fact, the district court did not rule that these questions
raise collateral matters. And given the emphasis that the prosecution
placed on the tape recording at trial, it would be nonsensical (and
inconsistent) to argue that identification of the"post office" was a col-
lateral matter.
We are thus left with a pure issue of relevancy and that is an issue
to which we must accord the district court's decision particular defer-
ence. See Powers, 59 F.3d at 1470. The transaction involving Wash-
ington and Norfleet occurred approximately two years prior to both
the taped conversations between Washington and Walker and Walk-
er's initial debriefing with the DEA. Moreover, the transaction
occurred prior to the time that Washington became involved in Kenny
Dorsey's drug enterprise, and there is no contention made that the
transaction had anything whatsoever to do with the charged conspir-
acy. The latter fact distinguishes the issue presented here from the one
presented in Part II, supra. Accordingly, given the deference that we
must accord the district court's evidentiary rulings, we cannot say that
the district court abused its discretion.
B.
Defense counsel also attempted to attack the credibility of Wash-
ington, Walker, and other Government witnesses by drawing the
12
jury's attention to the various plea agreements entered into with the
Government. Cross-examination of this kind is, of course, entirely
proper and expected. Equally proper is the Government's right to
establish a witness's credibility in the face of such an attack. How-
ever, in a part of his closing argument to the jury, the prosecutor over-
stepped his bounds and told the jury that:
I am going to make a pitch to the judge at sentencing. They
testified truthfully, they upheld their end of the bargain, and
I am going to uphold my end of the bargain. I respect that.
Somebody that is willing to do that, I think that they should
get something from me and they are. I am not hiding that
from you.
****
You can talk about the evidence in a case like this, you
get your head hanged (sic) to you. Best thing to do[if you
are the defense] is circle it, attack the people, attack the drug
dealers, they are bad, they are bad, they are bad. I am telling
you they are bad, but they are not liars. Too much to lose
to lie.
****
I tell you what I did about the discrepancies [in the testi-
mony]. I didn't hide them from you. Remember, there are
only three people in this courtroom that knew what all the
witnesses were going to say. Remember they all met with
the government.
I knew Michael Walker believed this. I knew Tracy
Washington denied it. I let it all hang out. I certainly could
have said, well, Tracy, don't you think that maybe you took
it. No. Don't do that. I don't hide it from you. Good, bad,
pretty, ugly. You heard it. I could have orchestrated it. That
would have been wrong. Could have orchestrated it. Didn't
orchestrate it. Won't orchestrate it. Didn't do it. Let it all
hang out.
13
****
Witnesses are not liars, they are telling the truth.
At the time these statements were made defense counsel failed to
object. Counsel now contends on appeal that the statements constitute
improper vouching requiring that the defendants be given a new trial.
Because counsel failed to object at trial, our review is limited to a
"plain error" inquiry under Rule 52(b) of the Federal Rules of Crimi-
nal Procedure.6 According to the Government, no such error occurred
here because the prosecutor's statements did not lead to a miscarriage
of justice or substantial prejudice to the defendants. As for Dorsey
and Grover, we agree that the vouching did not amount to plain error
because ample evidence of guilt exists independent of the vouched-
for testimony to warrant the conclusion that their convictions were
permissibly obtained. As for Harris, our analysis must be more
detailed because the evidence against him primarily came from the
testimony of Washington and Walker. Nonetheless, we conclude that
the prosecutor's statements did not deprive Harris of a fair trial, and
we therefore decline to reverse his conviction under Rule 52(b).
In United States v. Olano, 113 S. Ct. 1770, 1776-78 (1993), the
Supreme Court defined plain error under Rule 52(b) as (1) error (2)
that is plain and (3) affects substantial rights. The Supreme Court also
made clear that because it is the defendant who has failed to make a
timely objection at trial, it is the defendant who bears the burden of
persuasion with respect to prejudice. Id. at 1178. In addition, because
Rule 52(b) is permissive, a reviewing court should exercise its discre-
tion to correct such an error only when the error"seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings." Id.
at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)); see United States v. Floresca, 38 F.3d 706, 712 (4th Cir.
1994) (en banc). Accordingly, we must not take the prosecutor's
_________________________________________________________________
6 Rule 52(b) provides that:
Plain Error. Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention
of the court.
14
statements in isolation, but rather, "we must review the entire pro-
ceedings to see if the misconduct undermined the trial's fundamental
fairness." United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)
(citing United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993)); see
United States v. Young, 470 U.S. 1, 16 (1985). 7
Likewise, with respect to claims of prosecutorial misconduct (of
which vouching is a subset), a defendant "must show that the remarks
were improper and that they "prejudicially affected the defendant's
substantial rights so as to deprive the defendant of a fair trial.'" Adam,
70 F.3d at 780 (quoting Mitchell, 1 F.3d at 240); see United States v.
Francisco, 35 F.3d 116, 120 (4th Cir. 1994), cert. denied, 115 S. Ct.
950 (1995); United States v. Brockington, 849 F.2d 872, 875 (4th Cir.
1988). There are several factors relevant to the determination of prej-
udice, including:
(1) the degree to which the prosecutor's remarks have a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
Adam, 70 F.3d at 776 (quoting United States v. Harrison, 716 F.2d
1050, 1052 (4th Cir. 1983), cert. denied, 466 U.S. 972 (1984)). Courts
should also determine whether the remarks were invited, Young, 470
U.S. 1, 12-13, and examine the remedial effect of any curative
instruction provided at trial. See Harrison, 716 F.2d at 1053. See also
United States v. Valez, 46 F.3d 688, 691 (7th Cir. 1995) (citing
Darden v. Wainwright, 477 U.S. 168, 182 (1986)); Mitchell, 1 F.3d
_________________________________________________________________
7 Although the Government argues that plain error should not be cor-
rected unless it results in a miscarriage of justice, to the extent that such
a standard requires the showing of actual innocence, the law is to the
contrary. Olano, 113 S. Ct. at 1779 ("The Court of Appeals should no
doubt correct a plain forfeited error that causes the conviction or sentenc-
ing of an actually innocent defendant, but we have never held that a Rule
52(b) remedy is only warranted in cases of actual innocence.") (emphasis
in original; citation omitted).
15
at 242-43. Again, the overriding issue is whether the prosecutorial
misconduct denied the defendant a fair trial.
1.
In this case, there is no question that the prosecutor's statements
are clear, unequivocal examples of vouching for the credibility of
Government witnesses. Indeed, it is hard to imagine some other pur-
pose for the prosecutor telling the jury that: "I am going to make a
pitch to the judge at sentencing. [The witnesses] testified truthfully,
they upheld their end of the bargain, and I am going to uphold my end
of the bargain. I respect that." "I am telling you they are bad, but they
are not liars. Too much to lose to lie." The"[w]itnesses are not liars,
they are telling the truth."
Furthermore, the prosecutorial remarks in this case did not stop at
merely seeking to vouch for the credibility of the Government wit-
nesses. The prosecutor specifically called the jury's attention to his
own credibility, arguing that he would not "orchestrate" the witnesses'
testimony: "Remember, there are only three people in this courtroom
that knew what all the witnesses were going to say. Remember they
all met with the government." "I don't hide it from you. Good, bad,
pretty, ugly. You heard it. I could have orchestrated it. That would
have been wrong. Could have orchestrated it. Didn't orchestrate it.
Won't orchestrate it. Didn't do it. Let it all hang out."
Taken together, the potential effect of statements of this kind are
twofold. First, they tell the jury that it does not need to determine the
credibility of the Government witnesses because the prosecutor has
already independently determined that "they are not liars." And sec-
ond, they tell the jury that in order to disbelieve the Government wit-
nesses it must also disbelieve the prosecutor because he (the
prosecutor) "[d]idn't orchestrate it."
We think that it is indisputable that the prosecution's statements
were improper and amount to error that is plain. See, e.g., United
States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993) ("Vouching gen-
erally occurs when the prosecutor's actions are such that a jury could
reasonably believe that the prosecutor was indicating a personal belief
in the credibility of the witness."); United States v. Roberts, 618 F.2d
16530, 537 (9th Cir. 1980) ("The prosecution may not portray itself as
a guarantor of truthfulness"). We must therefore turn to the question
of whether the prosecutor's vouching deprived Harris of a fair trial.
2.
We emphasize at the outset that the vouching in this case was both
isolated and invited to the extent that it was in response to credibility
attacks made on the Government witnesses during the course of the
trial. Indeed, the vouching encompassed only a small portion of the
prosecutor's entire closing argument to the jury and the thrust of that
argument was that the evidence presented at trial established the
defendants' guilt beyond a reasonable doubt. See Adam, 70 F.3d at
780 (no plain error when, among other things, comments were iso-
lated); United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir.
1995) (no plain error when prosecutor's remarks were isolated and
marginal comments in the course of a short rebuttal summation), cert.
denied, 116 S. Ct. 1032 (1996).
Moreover, counsel for Harris was able to respond to the prosecu-
tor's statements in her closing argument. In particular, counsel for
Harris argued to the jury that:
The government has told you, and [the prosecutor] told
you, that these witnesses don't lie. He even told you that he
personally respects Tracy Washington, personally respects
him. And he wants you to accept their plea bargains as a
government warranty that they won't lie.
Ladies and gentlemen, this is a warranty that those scorpi-
ons are not going to sting you. If the government gave you
a piece of paper and said this is your warranty that a scor-
pion will not sting you, would you pick up that scorpion and
put it in your hand? Would you trust this paper to protect
you from being stung by a scorpion? If you would not pick
it up, if you would not pick up a scorpion, then don't let it
sting Christopher Harris.
Thus, defense counsel was able to make a direct challenge against the
prosecutor's statements and to turn the statements to Harris's advan-
tage. This served to minimize any prejudice.
17
Likewise, the district court's general instructions to the jury helped
minimize any prejudice that the Harris may have suffered. As the dis-
trict court judge told the jury:
In deciding the facts, you must rely upon your own recollec-
tion of the evidence. What the lawyers have said in their
opening statements and what they will say in their closing
arguments, what they have said in their objections or their
questions is not evidence.
The district court judge also instructed the jury to"examine the testi-
mony of a cooperating witness with caution and weigh it with great
care." While we think that general instructions of this kind do not
automatically cure any prejudice that resulted from improper prosecu-
torial remarks, such instructions do make clear to the jury that it--not
the prosecutor--must weigh the evidence.8
We also think that the evidence of guilt offered against Harris was
substantial, even though it was not as great as the evidence offered
against either Dorsey or Grover.9 As we have discussed, a key point
of contention at trial was whether Harris was the"post office" referred
to by Washington and Walker in their July 1993 conversation about
_________________________________________________________________
8 Of course, because defense counsel failed to object to the prosecu-
tion's improper remarks, the district court judge did not provide a spe-
cific curative instruction to the jury.
9 The evidence against both Dorsey and Grover was compelling even
in the absence of the vouched-for testimony. For instance, Dorsey was
recorded on video tape selling crack cocaine to Walker. As for Grover,
he was arrested while carrying $154,000 in drug proceeds. The improper
vouching did not therefore deny Dorsey and Grover their right to a fair
trial.
18
drugs. At trial both Washington and Walker testified that Harris was
the "post office," and, accordingly, the jury could reasonably believe
this to be true. Nonetheless, the essence of Harris's claim of prejudice
is that the jury may have relied upon the vouching of the prosecutor
to reach the conclusion that Washington and Walker were not liars
and that Harris was the "post office" discussed in their conversation.
However, having reviewed the record in this case, it is clear that
evidence was presented to the jury from which it could find that Har-
ris was the "post office" even absent the testimony of Washington and
Walker. In the June 1993 telephone conversation between Washing-
ton and Walker, Harris was driving the car when Walker asked Wash-
ington if he had the "mailman" with him and Washington responded
that he did. Washington and Walker then joked about how "Chris"
(i.e., Christopher Harris) drives like a mailman. From this undisputed
evidence, the jury could reasonably infer that Harris was not only the
"mailman" but that he was also the "post office" discussed in the July
1993 conversation, and the jury could make this inference even with-
out relying upon the testimony of Washington and Walker.10
_________________________________________________________________
10 The text of the June 1993 conversation between Washington and
Walker was:
WASHINGTON: (Talking to someone in the background)
. . . up on the beltway. Hun? Oh yea
(inaudible) . . . right here. Need to go right
here? (Inaudible) on the beltway and get
off on Liberty.
WALKER: What you got the mailman with you?
WASHINGTON: Yeah.
WALKER: Yeah.
WASHINGTON: He can't drive worth a [expletive deleted].
He drive like a God damn mailman. You
know what I mean? Hey, my uh, he drive
like a God damn mailman.
WALKER: What? Tell Chris supposed to drive that
like he drive the Z.
19
In sum, we hold that based on the evidence presented against Har-
ris, the limited nature of the prosecutor's vouching, defense counsel's
responsive argument to the jury, and the general instructions provided
by the district court judge, Harris has failed to meet his "burden of
persuasion with respect to prejudice." Olano , 113 S. Ct. at 1178.
When the record is considered as a whole, Harris simply was not
deprived of a fair trial. He therefore cannot rely upon Rule 52(b) to
excuse his failure to object to the prosecutor's vouching.
We emphasize, however, that the Government should not take this
decision as a license to resort to argument such as that made by the
prosecutor in this case. Even though Harris cannot satisfy his burden
under Rule 52(b), the prosecutor's vouching was simply improper.
C.
Harris also claims that it was error for the district court to refuse
his request that the jury be instructed that a mere buyer-seller relation-
ship is insufficient to establish a conspiracy and an individual's par-
ticipation in it. While we agree with the premise, we disagree with its
application in this case.
Throughout the trial Harris's defense was that the Government wit-
nesses were lying and that he had absolutely no involvement in the
charged conspiracy. He took the stand in his own defense and claimed
that he never purchased or sold any drugs, in any quantities, from or
on behalf of either Washington or Walker. That is, he did not urge the
jury to find him innocent of the conspiracy charge because he merely
purchased drugs from Washington and Walker.11
_________________________________________________________________
11 Harris's testimony is explicitly clear:
Q. Chris, have you ever bought cocaine from Tracy Washing-
ton?
A. No.
Q. Have you ever been given cocaine by Tracy Washington?
A. No.
Q. Have you ever been given cocaine by Michael Walker?
20
In keeping with this defense, counsel for Harris did not request a
"buyer-seller" instruction.12 However, during the first day of jury
deliberations, the jury requested guidance on whether the act of distri-
bution is necessary to establish a conspiracy. The jury also asked for
the definition of the word "participation" as it relates to the charge of
conspiracy. Counsel for Harris then requested that the district court
provide an instruction explaining that a mere buyer-seller relationship
does not constitute evidence to support a conviction for conspiracy.
The district court refused.13
_________________________________________________________________
A. No.
Q. Have you ever sold cocaine?
A. No.
...
Q. Did you ever help Tracy Washington sell cocaine?
A. No, I didn't.
Q. Did you ever sell cocaine for Tracy Washington?
A. No, I have not.
12 A buyer-seller instruction informs the jury that the mere purchase
and sale of narcotics is standing alone insufficient evidence upon which
to establish a conspiracy to distribute narcotics. See United States v.
Mills, 995 F.2d 480, 485 & n.1 (4th Cir.), cert. denied, 114 S. Ct. 283(1993).
13 Instead, the court instructed the jury that:
A conspiracy is an agreement, knowingly and voluntarily
entered into to commit an illegal act. Thus, it is the agreement
itself that is illegal.
The object of the conspiracy need not be carried out for the
conspiracy to exist. In count one of the indictment, the conspir-
acy charged is an agreement to distribute cocaine or cocaine
base. Thus, to prove a defendant guilty the government must
establish beyond a reasonable doubt that the defendant in ques-
tion joined a conspiracy and that the defendant understood the
objective of the conspiracy joined was to distribute cocaine or
cocaine base. But the government need not prove that cocaine or
cocaine base was actually distributed as part of the conspiracy.
21
On appeal the Government argues that the court properly refused
to give the requested instruction because (1) Harris never advanced
the "buyer-seller" defense at trial and (2) the district court's conspir-
acy instruction substantially covered the point. In light of the facts in
this case, we agree with the Government on both arguments.
A district court's decision not to give a requested instruction is
reviewed for abuse of discretion, and a district court's refusal to pro-
vide a requested instruction constitutes reversible error only if the
instruction: (1) was correct; (2) was not substantially covered by the
court's charge to the jury; and (3) dealt with some point in the trial
so important that failure to give the instruction seriously impaired the
defendant's ability to conduct his defense. United States v. Lewis, 53
F.3d 29, 32 (4th Cir. 1995); see United States v. Gray, 47 F.3d 1359,
1369 n.13 (4th Cir. 1995) ("Although the district court may provide
an instruction if the evidence supports it, a defendant is not entitled
to a particular instruction unless he or she advances the relevant the-
ory at trial.") (emphasis in original; citation omitted).
As we have explained, Harris did not urge the jury to find him
innocent of the conspiracy charge because he merely purchased drugs
from Washington or Walker. Accordingly, even though the requested
buyer-seller instruction is correct as a matter of law, the district court
did not abuse its discretion when it refused to provide the instruction.
Also, because the testimony of Washington and Walker showed
that Harris received distributable quantities of drugs on a regular
basis, we agree that the district court's conspiracy instruction substan-
_________________________________________________________________
As for the definition of the word "participation," the court instructed
the jury that:
A defendant with an understanding of the unlawful character
of the conspiracy must have intentionally engaged, advised or
assisted in it for the purpose of furthering illegal undertaking. He
thereby becomes a knowing and willing participant in the unlaw-
ful agreement, and he must become a participant by intentionally
engaging, advising or assisting in the conspiracy for the purpose
of furthering the illegal undertaking.
22
tially covered the point. See Mills, 995 F.2d at 485 (no error when dis-
trict court refused to give buyer-seller instruction because evidence
showed that defendant was far more than a mere buyer). Indeed, we
noted in Mills that evidence of a buy-sell transaction, when coupled
with a substantial quantity of drugs, would support a reasonable infer-
ence that the parties were co-conspirators. 995 F.2d at 485 n.1. Cf.
United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991)
("The mere purchase or sale of drugs (even in large quantities) does
not demonstrate an agreement to join a drug distribution conspiracy").
Accordingly, it was not an abuse of discretion for the district court to
refuse to give the buyer-seller instruction in this case.
IV.
Charles Grover has also appealed his sentence. He claims that the
district court erred when it refused to grant a reduction of his sentence
under section 3B1.2(b) of the Sentencing Guidelines because, accord-
ing to Grover, he was a minor participant in the drug conspiracy. In
addition, Grover claims that the district court erred when it adjusted
his sentence upward under section 2D1.1(b)(1) of the Sentencing
Guidelines based on the firearms discovered at Grover's residence
upon his arrest in August of 1993. We reject both of Grover's claimed
sentencing errors.
A.
The defendant bears the burden of proving by a preponderance of
the evidence that he is entitled to a reduction in sentence. United
States v. Nelson, 6 F.3d 1049, 1058 (4th Cir. 1993), cert. denied, 114
S. Ct. 2142 (1994). And because a defendant's role in the offense is
a factual question, we review a sentencing court's decision to deny a
reduction in sentence for clear error. United States v. Reavis, 48 F.3d
763, 768-79 & n.1 (4th Cir.), cert. denied, 115 S. Ct. 2597 (1995); 18
U.S.C. § 3742(e).
Under section 3B1.2 of the Sentencing Guidelines, a sentencing
court may reduce the offense level of a "minimal" or "minor" partici-
pant in a conspiracy. Subsection 3B1.2(a) provides a four-level
decrease in the offense level of a minimal participant. Subsection
3B1.2(b) provides a two-level decrease in the offense level of a minor
23
participant. Application Notes 2 and 3 to the Commentary of section
3B1.2 provide that:
It is intended that the downward adjustment for a minimal
participant will be used infrequently. It would be appropri-
ate, for example, for someone who played no other role in
a very large drug smuggling operation than to offload part
of a single marihuana shipment, or in a case where an indi-
vidual was recruited as a courier for a single smuggling
transaction involving a small amount of drugs.
For purposes of § 3B1.2(b), a minor participant means any
participant who is less culpable than most other participants,
but whose role could not be described as minimal.
Grover concedes that he was not a minimal participant in the drug
conspiracy. Essentially, Grover recognizes that he does not fall within
subsection 3B1.2(a) because he acted as a courier on multiple occa-
sions carrying large amounts of drugs. However, Grover argues that
because his role was limited to that of a courier and he only carried
eight kilograms of the eighty kilograms of crack cocaine distributed
during the course of the conspiracy, he is less culpable than other
members of the conspiracy and is thus entitled to a reduction under
subsection 3B1.2(b).
In United States v. Reavis, this circuit rejected a defendant's claim
that she should have been classified as either a minimal or minor par-
ticipant holding that courts "not only compare the defendant's culpa-
bility to that of other participants, but also ``measure each participant's
individual acts and relative culpability against the elements of the
offense of conviction.'" 48 F.3d at 769 (quoting United States v.
Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989)).
Here, while Grover only acted as a courier for one tenth of the
drugs distributed during the course of the conspiracy, he still carried
large quantities of cocaine (eight kilograms in total), making three
trips from California to Maryland. Based on nothing more than the
eight kilograms that he carried, Grover knew that he was part of a
large drug conspiracy. Moreover, because he carried a significant
amount of drugs on multiple occasions, Grover knew that he was a
24
trusted member of the conspiracy and that he had an important and
ongoing role in the conspiracy. Evidence that Grover's role was lim-
ited to that of a courier does not diminish the fact that he was person-
ally responsible for the delivery of large quantities of drugs on
multiple occasions. Indeed, this is not a case where the defendant car-
ried small amounts of drugs on multiple occasions, nor is this a case
where a defendant carried a large quantity of drugs on a single occa-
sion. Therefore, we hold that the district court did not err when it
rejected Grover's claim that he was a "minor" participant entitled to
a reduction of sentence.
B.
The district court also properly enhanced Grover's sentence for
possession of firearms during the conspiracy. Section 2D1.1(b)(1) of
the Sentencing Guidelines states that "if a dangerous weapon (includ-
ing a firearm) was possessed, increase by 2 levels." Application Note
3 to the Commentary provides that:
The adjustment should be applied if the weapon was pres-
ent, unless it is clearly improbable that the weapon was con-
nected with the offense. For example, the enhancement
would not be applied if the defendant, arrested at his resi-
dence, had an unloaded hunting rifle in his closet.
The Government bears the burden of proving by a preponderance
of the evidence that the weapons were possessed during the commis-
sion of the offense. United States v. Calhoun , 49 F.3d 231, 236 (6th
Cir. 1995). If established, then Grover must show that it is clearly
improbable that the weapons were connected with the offense. Id.Again, this court reviews the district court's decision for clear error.
United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).
In this case, three firearms were found at Grover's residence. To
be specific, police found an APM 9mm semi-automatic handgun, a
Colt semi-automatic handgun, an Orson semi-automatic handgun, and
ammunition for all firearms. In Grover's residence, police also found
tools consistent with Grover's role as a drug courier in the narcotics
enterprise--that is, fabric softener, suitcases, and tape.
25
From this evidence the district court logically inferred that Gro-
ver's residence was used, at the very least, to store tools of the drug
trade and that the firearms were possessed during the commission of
the offense. In addition, the district court logically inferred that in his
capacity as a drug courier Grover possessed the firearms to protect
money or drugs while such money or drugs were kept at Grover's res-
idence. While Grover complains that neither drugs nor drug money
were found at his residence and that the Government could not point
to specific instances when drugs or drug money were kept at his resi-
dence, Grover has failed to show that it is clearly improbable that the
weapons were connected with the offense. Needless to say, unlike an
unloaded hunting rifle, one does not possess an APM 9mm semi-
automatic handgun, a Colt semi-automatic handgun, and an Orson
semi-automatic handgun in order to take advantage of deer season.
V.
Based on the foregoing, we affirm the conviction and sentence of
defendant Charles Grover and the convictions of defendants Charles
Dorsey and Christopher Harris.
AFFIRMED
26