United States v. Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4889
MICHAEL Y. DAVIS, a/k/a Jamaican
Mike, a/k/a Numba,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-01-120-A)
Argued: February 28, 2003
Decided: April 14, 2003
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Matthew Alan Wartel, BYNUM & JENKINS, P.L.L.C.,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke, Special
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Rebeca Hidalgo
Bellows, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. DAVIS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Y. Davis, Jr., who stands convicted of conspiracy to dis-
tribute controlled substances, in violation of 21 U.S.C.A. § 846 (West
1999), appeals raising numerous issues. We affirm.
I.
A federal grand jury indicted Davis, Steve Anthony Marsh, Horace
Perry, and James Lewis Blanco of engaging in a conspiracy to possess
with intent to distribute and to distribute fifty grams or more of crack
cocaine, five kilograms or more of cocaine, and one hundred kilo-
grams or more of marijuana, in violation of 21 U.S.C. § 846. A forfei-
ture count, and an additional count against Marsh, were also included.
A jury found Davis and the co-conspirator tried with him, Blanco,
guilty. The court sentenced Davis to 240 months in prison, five years
of supervised release, and a $100 special assessment. The court also
entered a criminal forfeiture order against Davis’ 1999 gold Cadillac
Escalade and $500,000 in drug proceeds. See United States v. Davis,
177 F. Supp. 2d 470, 477 (E.D. Va. 2001) (citing Forfeiture Order).
Both defendants noted appeals. On September 23, 2002, we affirmed
Blanco’s conviction. See United States v. Blanco, No. 01-4814, 2002
WL 31104265 (4th Cir. Sept. 23, 2002). We now consider Davis’
appeal.
II.
Davis challenges his conspiracy conviction on several grounds.1
1
We have expressly rejected two of Davis’ arguments in prior cases.
The first is the contention that the district court erred in refusing to strike
the testimony of the government’s cooperating witnesses because these
witnesses testified in "expectation of a reward" in violation of 18
UNITED STATES v. DAVIS 3
A.
Initially Davis contends that for several reasons the district court
erred in refusing to grant a mistrial because of the prosecutor’s
assertedly improper closing rebuttal argument. During that argument,
the prosecutor said:
. . . how much things have changed since opening. What
was it that Mr. Wartel told you in his opening statement?
Mr. Wartel told you in his opening statement that the evi-
dence would show that Michael Davis was not guilty. Do
you remember when he said that to you? You are allowed
to scrutinize claims that the defense makes the same way
that you scrutinize claims the government makes. And there
was no evidence that supported Mr. Wartel when he made
that claim. What was the evidence supposed to be through
the one guy that he called that was his employer, that talked
about the per diem?
(Emphasis added). The prosecutor concluded as follows:
In closing, ladies and gentlemen of the jury, one other thing
that prosecutors are allowed to do in closing is to make a
plea for law enforcement. Don’t you find, you know, the
analogy as to buying eggs or these other things that are men-
tioned — these weren’t eggs that were being dealt with in
our community. Kimeth Gardner did not blow through
$45,000 worth of eggs and throw his life down the tubes.
. . . These drugs are real. The impact that they have is real.
U.S.C.A. § 201(c)(2) (West 2000). We rejected this contention in United
States v. Anty, 203 F.3d 305 (4th Cir. 2000). The second is the argument
that the statutory penalty provision in 21 U.S.C.A. § 841 (West 1999 &
Supp. 2003) violates the Constitution. We rejected this argument in
United States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001). Absent
a change in controlling Supreme Court precedent, and there is none here,
a panel of this court must abide by circuit precedent. See United States
v. Prince-Oyibo, 320 F.3d 494, 498 (4th Cir. 2003). Accordingly, we
must reject these arguments in the case at hand.
4 UNITED STATES v. DAVIS
. . . It’s your community. Do what you think is right. And
I ask you to convict both of these defendants for the offense
charged.
Following closing arguments, Davis moved for a mistrial, which the
district court denied.
"The test for reversible prosecutorial misconduct generally has two
components: that (1) the prosecutor’s remarks or conduct must in fact
have been improper, and (2) the prosecutor’s remarks or conduct must
have prejudicially affected the defendant’s substantial rights so as to
deprive the defendant of a fair trial." United States v. Brockington,
849 F.2d 872, 875 (4th Cir. 1988), overruled on other grounds by
Bailey v. United States, 516 U.S. 137 (1995) (internal quotation marks
omitted). Comments made by a prosecutor warrant a new trial only
when they "so infected the trial with unfairness as to make the result-
ing conviction a denial of due process." United States v. Francisco,
35 F.3d 116, 130 (4th Cir. 1994) (internal quotation marks omitted).
Davis first maintains that the above statements improperly shifted
the burden of proof to the defense. The argument is without merit. A
prosecutor may ask a jury to look for weaknesses in a defendant’s
case; moreover, any misimpression caused by these remarks would
have been cured by the court’s specific instructions, that "[t]he burden
is always on the prosecution to prove guilt beyond a reasonable
doubt."
Second, Davis contends the prosecutor improperly referred to his
failure to testify. He argues that these statements have "the effect of
calling to the attention of the jury the fact that no other evidence was
presented to explain things that only Defendant could have been
expected to explain." Brief of Appellant at 23. A prosecutor can char-
acterize the evidence as "uncontradicted," even if the defendant was
the only person who could have refuted such evidence. United States
v. Francis, 82 F.3d 77, 79 (4th Cir. 1996).
In this case, defense counsel in his opening statement stated that
there "was a lack of any real evidence as to [the guilt] of Michael
Davis" and that "Michael Davis is not guilty," and "[b]ecause we
doubt the quality of the evidence as to Michael Davis, we may not
UNITED STATES v. DAVIS 5
present much evidence, if any." The prosecutor could reasonably
argue that defense counsel failed to prove what he had promised in
opening argument: that the evidence, or lack thereof, would show
Davis "not guilty."
Finally, Davis argues that the prosecutor made an improper plea for
law enforcement; that claim, too, is meritless. The law prohibits a
prosecutor from urging that a jury convict a defendant not because of
his participation in a crime, but merely to make a general statement
against such crimes. United States v. Pupo, 841 F.2d 1235, 1240 (4th
Cir. 1988). In this case, although the prosecutor stated that he was
allowed to make a plea for law enforcement and that "[i]t’s your com-
munity. Do what you think is right," he did not overstep this bound-
ary, given that he focused his comments on the overwhelming and
largely uncontroverted evidence of Davis’ guilt.
B.
Davis also maintains that the district court erred in excluding cer-
tain expert testimony. We review the exclusion of expert testimony
for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143
(1997).
Specifically, Davis maintains that the court erred in excluding the
testimony of (1) an experienced criminal defense attorney who would
have testified that granting sentence reductions for cooperating wit-
nesses affected their truthfulness;2 and (2) a retired law enforcement
2
Davis raises a related argument challenging the district court’s refusal
to give a proposed jury instruction "addressing the usage of U.S.S.G.
5K1.1 and Fed. R. Crim. P. 35(b) motions." A denial of a requested jury
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 requested instruction seriously impaired the defendant’s abil-
ity to conduct his defense." United States v. Lewis, 53 F.3d 29, 32 (4th
Cir. 1995) (internal quotation marks omitted). Here, even assuming that
the requested instructions was both correct and crucial to the case, it is
clear that it was "substantively covered by the court’s charge to the jury."
The court instructed the jurors that they were the "sole judges" of credi-
6 UNITED STATES v. DAVIS
officer to testify about investigative techniques in drug cases. We
must reject his argument because, in both instances, the district court
acted well within its discretion. See United States v. French, 12 F.3d
114, 117 (8th Cir. 1993).
III.
Davis also challenges the district court’s enhancements of his sen-
tence.3 We review for clear error. See United States v. Rusher, 966
F.2d 868, 860 (4th Cir. 1992).
Davis claims that the district court’s enhancement of his sentence
pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm consti-
tuted clear error. He maintains that this enhancement was based on
the testimony of one highly unreliable witness and the vague reports
of cooperating witnesses who claim to have seen guns at Davis’ home
bility and that alleged accomplice testimony "must be examined and
weighed by the jury with greater care than the testimony of a witness
who did not participate in the commission of [the] crime." The court also
cautioned the jury to "determine whether the testimony of the accomplice
has been affected by self-interest, or by an agreement he may have with
the government, or by his own interest in the outcome of the case, or by
prejudice against the defendant." The court continued by explaining
about informer testimony, instructing the jury to scrutinize it closely and
view it with suspicion.
3
Initially, Davis contends that pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), each factor that increases the sentencing guideline
range must be charged in the indictment, submitted to the jury, and
proven by the Government beyond a reasonable doubt. Both the Supreme
Court and this court have previously rejected this argument. See Harris
v. United States, 536 U.S. 545, 122 S. Ct. 2406, 2420 (2002) (plurality)
(holding that facts establishing an increased mandatory minimum sen-
tence "need not be alleged in the indictment, submitted to the jury, or
proved beyond a reasonable doubt"); United States v. Lewis, 235 F.3d
215, 219 (4th Cir. 2000), cert. denied, 534 U.S. 814 (2001) (holding that
Apprendi violations are "limited to facts that increase punishment beyond
the prescribed statutory maximum" and that due process is not violated
unless the “sentence resulted in a penalty greater than the statutory maxi-
mum").
UNITED STATES v. DAVIS 7
on various occasions. "[P]roximity of narcotics to weapons is suffi-
cient to warrant a Section 2D1.1(b)(1) enhancement." United States
v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). Moreover, the enhance-
ment does not "require[ ] proof of precisely concurrent acts, for exam-
ple, gun in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun." Id. (internal quotation marks omitted).
A defendant bears the burden of showing that it is "‘clearly improba-
ble that the weapon was connected with the offense.’" Id. at 852-53(quoting the Application Notes to Section 2D1.1). The district court
correctly noted that there was a "chorus of testimony" about Davis’
possession of firearms generally, and specifically having them in his
place of residence, where he also dealt drugs.4 Because the enhance-
ment does not require proof of specifically concurrent acts, and the
burden was on Davis to show that it was "clearly improbable" that the
weapon was connected with his drug offenses, the district court did
not clearly err in enhancing Davis’ sentence on this basis.
In addition to challenging the gun enhancement, Davis also argues
that the trial court lacked sufficient evidence to enhance his sentence
for drug amounts beyond those found by the jury. Noting that the
Government never seized any drugs from him, or produced any tangi-
ble evidence of his drug trafficking, Davis again argues that the Gov-
ernment’s evidence was based on the unreliable testimony of
cooperating witnesses, and, therefore, was insufficient to support the
enhancements. During the trial, at least three witnesses testified that
Davis sold them cocaine, which they then converted into crack.5 Spe-
4
The court relied on the testimony of: (1) Horace Perry that he
observed Davis in possession of a nine millimeter handgun and a .38 cal-
iber revolver; (2) Mack Francis that he observed Davis in possession of
a Tech-9, a Mac-10, and a nine-millimeter handgun; (3) Jason McCree
that he observed Davis in possession of firearms, including a Glock, a
Mac-10, a Tech-9, and an AK-47 and that Davis regularly stored these
guns throughout his house and in his car; and (4) Steve Marsh that Davis
showed him a Mac-11 and an AK-47 at Davis’ house, that he saw the
butt of a nine millimeter handgun in Davis’ car, and that Davis carried
these guns for protection because he was a drug dealer. In addition, War-
ren Jenkins also testified that Davis kept a gun in his bedroom and
showed it to him on one occasion.
5
See J.A. 258, 261-62 (Steve Marsh); J.A. 338-39 (Horace Perry); J.A.
665 (Warren Jenkins).
8 UNITED STATES v. DAVIS
cifically referring to the testimony of Steve Marsh, the district court
noted that although it was not persuaded by all that Marsh said, it was
clear that Davis knew some of the cocaine he was selling would be
converted to crack. In view of all this testimony, making allowances
for embellishments and fading memories, the court held that the pre-
ponderance of the evidence showed that it was proper to attribute at
least 500 grams, but less than 1.5 kilograms, of crack to Davis. The
court acted within its "broad discretion" in finding these amounts.
IV.
Finally, Davis argues that the district court erred in ordering forfei-
ture of his property without submitting the issue to the jury. Specifi-
cally, he contends that the general request for a jury trial made by his
counsel at arraignment — "On behalf of Mr. Davis, I . . . respectfully
request a jury trial" — was sufficient to trigger the requirement under
Fed. R. Crim. P. 32.2(b)(4) that the forfeiture issue be submitted to
the jury after it returned a guilty verdict against Davis. The district
court rejected this argument, noting that it "flatly contradicts the lan-
guage and purpose of the new criminal forfeiture rule." Davis, 177 F.
Supp.2d at 482. We agree.
Fed. R. Crim. P. 32.2(b)(4) provides that:
Upon a party’s request in a case in which the jury returns
a verdict of guilty, the jury must determine whether the gov-
ernment has established the requisite nexus between the
property and the offense committed by the defendant.
This provision, along with the remainder of Rule 32.2, is the prod-
uct of the December 1, 2000 amendments to the procedural rules gov-
erning criminal forfeiture. The previous provision governing this
matter, Rule 31(e), now abrogated, required that all criminal forfeiture
matters be submitted to a jury in the form of a special verdict unless
expressly waived by the defendant. The new rule simply inverts the
default principle that animated the old rule. Now, unless a party
expressly requests a jury determination on the forfeiture matter, the
court will make the determination. See Fed. R. Crim. P. 32.2 advisory
committee’s notes.
UNITED STATES v. DAVIS 9
The Supreme Court’s decision in Libretti v. United States, 516 U.S.
29 (1995), prompted this rather significant change. In Libretti, the
Court held that criminal forfeiture constitutes an aspect of the sen-
tence imposed (rather than being akin to a separate criminal offense)
and, consequently, that there is no constitutional right to a jury trial
in criminal forfeiture proceedings. Id. at 38-41.
Thus, the new rule makes a formerly mandatory requirement
optional upon the express request of a party. As the Advisory Com-
mittee pointed out, "[t]he provision gives the defendant, in all cases
where a jury has returned a guilty verdict, the option of asking that
the jury be retained to hear additional evidence regarding the forfeita-
bility of the property." Fed. R. Crim. P. 32.2 advisory committee’s
notes. Instead of an automatic entitlement to a jury determination of
forfeiture issues, criminal defendants now have an affirmative obliga-
tion to exercise their option to receive such a determination.
Davis maintains that he properly exercised his option to have the
jury determine the forfeiture issue when he made his general request
for a jury trial at arraignment. As the district court pointed out, how-
ever, "all criminal cases that proceed to a jury trial are the result of
such a general election, made either at arraignment or at some other
appropriate time in the course of the proceedings." Davis, 177 F.
Supp. 2d at 482. Thus, if we accept Davis’ argument, then "all jury
cases resulting in convictions would automatically require a jury
determination of forfeiture, precisely the result Congress sought to
avoid in enacting Rule 32.2(b)." Id.Accordingly, we hold that Davis’ general request for a jury trial at
his arraignment did not suffice to trigger the requirement that the
criminal forfeiture issue be decided by the jury. In doing so, we leave
for another day the more difficult question of what, at a minimum,
would constitute a sufficient request and when, in the course of the
proceedings, such a request would have to be made.
V.
For all of these reasons, the judgment of the district court is
AFFIRMED.