United States v. Wiggan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4318
JANEEK WIGGAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-00-5)
Submitted: November 8, 2002
Decided: February 11, 2003
Before MICHAEL and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Donald L. Stennett, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Samuel D. Marsh, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WIGGAN
OPINION
PER CURIAM:
Janeek Wiggan appeals from his convictions and sentence for con-
spiracy to possess with intent to manufacture, distribute and dispense
cocaine and cocaine base, in violation of 21 U.S.C. § 846 (2000), and
attempt to possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846, and aiding and abetting same. Wiggan challenges sev-
eral evidentiary rulings, the sufficiency of the evidence supporting his
convictions, his sentence in light of Apprendi v. New Jersey, 530 U.S.
488 (2000), and the delay in the district court’s filing of the final
judgment. Finding no error, we affirm.
Wiggan argues that the district court erred in denying his motion
to suppress the evidence related to his seizure at the train station. He
contends that the officers, specifically Agent Balcom, did not have
reasonable suspicion to detain him for an investigatory stop. This
court reviews a district court’s factual findings underlying its denial
of a motion to suppress for clear error, while reviewing its legal con-
clusions de novo. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). In addition, in reviewing the denial of a motion to suppress,
the court reviews the evidence in the light most favorable to the gov-
ernment. United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
We find the district court’s findings of fact and conclusions in its
order denying Wiggan’s motion to suppress evidence to be persuasive
and affirm the Terry stop on its reasoning. See United States v. Wig-
gan, No. CR-00-5 (S.D.W. Va. filed Apr. 10, 2000 and entered Apr.
13, 2000).
Wiggan contends that the Government’s handwriting expert’s testi-
mony should have been excluded because the Government violated
Fed. R. Crim. P. 16(a)(1)(E) by not timely providing him with the
expert’s report documenting the results of his handwriting analysis.
Wiggan sought to exclude the evidence as the remedy for the alleged
violation. See Fed. R. Crim. P. 16(d)(2). The Federal Rules of Crimi-
nal Procedure provide a district court with discretion in determining
the proper remedy for a discovery violation. See Fed. R. Crim. P.
16(d)(2). Accordingly, a trial court’s decision as to the appropriate
remedy may only be reversed for abuse of discretion. See United
UNITED STATES v. WIGGAN 3
States v. Ford, 986 F.2d 57, 59 (4th Cir. 1993). We conclude that
Wiggan was sufficiently on notice that handwriting analysis would be
an issue in sufficient time for the defense to obtain its own expert.
Further, Wiggan did not suffer "substantial prejudice" from the dis-
closure of the report one week before trial. See United States v.
Salameh, 152 F.3d 88, 130 (2d Cir. 1998).
Wiggan challenges the admission of testimony regarding transac-
tions with two individuals. Wiggan filed a Bill of Particulars, which
sought all overt acts not set forth in the charged conspiracy count. At
trial, the Government questioned Lisa Reed about two previously
undisclosed drug transactions between Wiggan and others. Specifi-
cally, the Government elicited testimony regarding sales to "Jeffrey"
and "Fire Extinguisher Man."
The Government admitted that it did not disclose the information
requested in the Bill of Particulars for these two transactions. The
Government felt that it was not under a duty to disclose the transac-
tions to Wiggan because they were discovered by the prosecutors dur-
ing interviews in preparation for trial and were not statements given
to law enforcement. A district court’s rulings on the admission and
exclusion of evidence will not be disturbed absent an abuse of discre-
tion. United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). This
court will find an abuse of discretion only if the district court’s evi-
dentiary ruling was arbitrary or irrational. United States v. Achiek-
welu, 112 F.3d 747, 753 (4th Cir. 1997).
The district court decided to permit the testimony and allow Wig-
gan a continuance if, after counsel’s cross-examination, he was not
satisfied cross-examining Reed on the transactions. The court advised
counsel that he would be provided additional time to investigate the
transactions, and he should advise the court if he wanted the addi-
tional time. After cross-examination, counsel did not request addi-
tional time to investigate the transactions. We conclude that because
counsel did not request the additional time, thus implying he was sat-
isfied with the information elicited during cross-examination, it was
not an abuse of discretion for the district court to admit the testimony.
Wiggan challenges the sufficiency of the evidence supporting his
convictions and argues that the Government’s case rested almost
4 UNITED STATES v. WIGGAN
entirely on Lisa Reed’s testimony, which was contradictory and unre-
liable. In reviewing a sufficiency of the evidence claim, this court will
sustain a guilty verdict if there is substantial evidence, taking the view
most favorable to the government, to support the finding of guilt.
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). Furthermore, "de-
terminations of credibility are within the sole province of the [fact
finder] and are not susceptible to judicial review." Burgos, 94 F.3d at
863 (internal quotation omitted). After reviewing the evidence in the
light most favorable to the Government, we find there was substantial
evidence to support the convictions.
Next, Wiggan challenges his sentence, arguing that his 262-month
sentence violates Apprendi because a specific quantity of cocaine or
cocaine base was not charged in the indictment and therefore the
court could impose only 240 months (the maximum under 21 U.S.C.
§ 841(b)(1)(C) (2000) without an enhancement for drug quantity) for
each conviction. Wiggan received a 262-month sentence for the con-
spiracy count and a concurrent twenty-year sentence for attempt to
possess with intent to distribute cocaine.
However, even assuming Wiggan is correct, under this court’s
decision in White, the trial court was obligated to impose consecutive
sentences on these convictions until it reached the total punishment,
or 262 months. U.S. Sentencing Guidelines Manual § 5G1.2(d)
(2000); United States v. White, 238 F.3d 537, 541-43 (4th Cir.), cert.
denied, 532 U.S. 1074 (2001). Such stacking, even if not expressly
articulated, is not plain error, and therefore Wiggan’s 262-month sen-
tence on the two counts was proper. White, 238 F.3d at 543.
Finally, Wiggan seeks to reverse and remand his convictions to the
district court because a twenty-one month delay in the district court
entering judgment "precluded the possibility of appeal for approxi-
mately twenty-one (21) months." We find that there was no error suf-
fered as a result of the delay and Wiggan’s appeal is timely filed;
therefore this issue is moot.
Accordingly, we affirm Wiggan’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
UNITED STATES v. WIGGAN 5
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED