United States v. Bryant

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4977
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOUIS ANTONIO BRYANT, a/k/a Tinio, a/k/a Black, a/k/a B
Stacks,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:04-cr-00047-NKM)
Argued: September 26, 2008 Decided: November 25, 2008
Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER III,
United States District Judge for the Eastern District of North
Carolina, sitting by designation.
Affirmed and remanded with instructions by unpublished per
curiam opinion.
ARGUED: Jonathan Lawrence Katz, Silver Spring, Maryland, for
Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
John L. Brownlee, United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Louis Antonio Bryant (“Bryant”) was tried by a jury in the
Western District of Virginia and convicted on eight charges
stemming from his leadership of a violent drug organization in
Charlottesville, Virginia called “Project Crud” or “PJC.” In
this appeal, Bryant raises numerous challenges to his
convictions and life sentence. As explained below, we remand
with instructions for the district court to vacate Bryant’s 21
U.S.C. § 846 conviction, but affirm his other convictions and
life sentence.
I.
First, Bryant argues that the district court and the
government violated his constitutional right to a speedy trial.
In analyzing this argument, we must assess: (1) the length of
the delay; (2) the reasons for the delay; (3) whether the
defendant timely asserted his right to a speedy trial; and (4)
whether the defendant was prejudiced by the delay. See, e.g.,
Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v.
Hopkins, 310 F.3d 145, 150 (4th Cir. 2002).
The first factor is the length of the delay. This factor
also is a threshold requirement that the defendant must meet
before we may actually engage in balancing the four factors.
See, e.g., Doggett v. United States, 505 U.S. 647, 651-52
2
(1992). The defendant must show that the delay in his case was
beyond the ordinary and was presumptively prejudicial. See id.Bryant’s first trial began sixteen months after his
indictment was unsealed, and his second trial began twenty-two
months after his indictment was unsealed. We assume, without
deciding, that this delay is lengthy enough to show presumptive
prejudice, and proceed to balance the four factors. See, e.g.,
id. at 652 n.1. However, in weighing the length of the delay,
we note that we have found that longer periods of delay were not
unreasonable. See, e.g., Hopkins, 310 F.3d at 150 (concluding
two-year delay was “not uncommonly long”).
The second factor is the reason for the delay. We have
classified reasons for delay as “improper,” “neutral,” or
“valid.” See United States v. Grimmond, 137 F.3d 823, 828 (4th
Cir. 1998). Improper reasons for delay weigh heavily against
the government, neutral reasons weigh slightly against the
government, and valid reasons weigh in favor of the government.
See id. An example of a neutral reason is “an understaffed
prosecutor’s office.” See id. Here, the government frequently
moved for continuances because this multi-defendant conspiracy
case was complicated. The district court agreed that the case
was complicated. Moreover, some of the delay was due to the
court accommodating defense counsel’s schedule. Ultimately, we
3
consider the reason for the delay to be neutral, and weigh it
slightly against the government.
The third factor is whether the defendant timely asserted
his right to a speedy trial. This factor may be weighed in
favor of the government when the defendant waits until late in
the course of events to assert his right. See, e.g., Grimmond,
137 F.3d at 829. Here, Bryant waited until May 2005, ten months
after his indictment was unsealed, to assert his right. By that
time, the district court had already calendared the case for
trial in November 2005. Moreover, Bryant’s first trial began on
November 14, 2005, and ended in a mistrial on November 30, 2005.
On December 16, 2005, Bryant moved to schedule his second trial
no earlier than April 20, 2006. The court granted defendant’s
motion and scheduled the second trial for May 8, 2006. Bryant’s
second trial began on May 8, 2006. We weigh this factor in
favor of the government.
The final factor is prejudice. Prejudice can take three
forms: (1) “oppressive pretrial incarceration”; (2) “anxiety”;
and (3) an impaired ability to mount a defense. See Barker, 407
U.S. at 532. The most serious form of prejudice is impaired
ability to mount a defense. See id. Although Bryant was
incarcerated pending his trial and doubtless suffered some
anxiety while awaiting his first and second trial, nothing
indicates that Bryant’s ability to mount his defense suffered in
4
any respect. Notably, Bryant does not identify any witness
whose memory faded, any evidence that was lost, or any similar
issue. See, e.g., Grimmond, 137 F.3d at 830. Indeed, the only
prejudice that Bryant alleges is his pretrial incarceration.
See Appellant’s Am. Sealed Br. 16–17. We conclude that this
factor weighs in favor of the government.
We have carefully balanced the four Barker factors.
“[T]hese factors have no talismanic qualities; courts must still
engage in a difficult and sensitive balancing process.” Barker,
407 U.S. at 533. We conclude that there was no violation of
Bryant’s Sixth Amendment right to a speedy trial. 1
II.
Next, Bryant challenges the jury venire, the petit jury at
his second trial, and the prosecutor’s use of a peremptory
strike during jury selection. See Appellant’s Am. Sealed Br.
17–18. Initially, we address Bryant’s challenge to the jury
venire.
1
Bryant also raises a Speedy Trial Act claim. See 18
U.S.C. §§ 3161-3174. We have reviewed the record concerning
Bryant’s first trial and his second trial. In light of the
“periods of delay” that are “excluded” in computing time under
the Speedy Trial Act, Bryant’s Speedy Trial Act claim fails.
See id. § 3161(h).
5
The Constitution requires that a criminal defendant receive
a jury venire that consists of “a fair cross section of the
community.” See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530
(1975); United States v. Williams, 264 F.3d 561, 567 (5th Cir.
2001). According to the Supreme Court:
In order to establish a prima facie violation of the
fair-cross-section requirement, the defendant must
show (1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation is
due to systematic exclusion of the group in the jury-
selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
Bryant’s argument concerning the jury venire fails. First,
Bryant bears the burden of establishing a prima facie violation,
see id., yet he does not allege, much less establish which
distinctive group was systematically excluded. See Appellant’s
Am. Sealed Br. 17–18.
Second, assuming that Bryant is challenging the purported
lack of African-Americans, he presents (and the record before us
contains) no evidence that the percentage of African-Americans
on the jury venire is not fair and reasonable in relation to the
community as a whole. See id. Bryant leaves us to speculate
about whether the venire was a reasonable representation.
6
Speculation is no substitute for evidence. See Williams, 264
F.3d at 568–69.
Even assuming that Bryant had met the first two
requirements, he presents no evidence that the alleged exclusion
of African-Americans on the jury venire was systematic, rather
than a mere statistical anomaly. Accordingly, we reject
Bryant’s fair-cross-section challenge to the jury venire.
Next, Bryant challenges the racial makeup of the petit jury
at his trial. Bryant, however, has no constitutional right to a
fair cross-section of the community on his petit jury. See,
e.g., Taylor, 419 U.S. at 538 (“[The Supreme Court] impose[s] no
requirement that petit juries actually chosen must mirror the
community and reflect the various distinctive groups in the
population. Defendants are not entitled to a jury of any
particular composition . . . .”).
Finally, Bryant argues that the prosecutor used a
peremptory strike in a purposefully discriminatory manner and
thereby violated Batson v. Kentucky, 476 U.S. 79 (1986), and its
progeny. See Appellant’s Am. Sealed Br. 17–18. In particular,
Bryant challenges the prosecutor’s decision to strike a
prospective juror who, in Bryant’s opinion, was Hispanic. See
id.To prevail on a Batson challenge, the defendant must first
demonstrate a prima facie case of purposeful discrimination.
7
See Batson, 476 U.S. at 96. The prima facie case requires the
defendant to show that the prosecutor used a peremptory strike
“to remove a potential juror solely on the basis of the juror’s
gender, ethnic origin, or race,” United States v. Martinez-
Salazar, 528 U.S. 304, 315 (2000), and that the facts and
circumstances surrounding the peremptory strike give rise to an
inference that the prosecutor acted due to the venire member’s
group identity. See Batson, 476 U.S. at 96; see also Powers v.
Ohio, 499 U.S. 400, 402 (1991) (extending Batson to allow
challenges by defendants not of the same group of the venire
member excluded).
Bryant contends that a female venire member, who self-
identified as “White” on the jury questionnaire, was in fact
Hispanic. See J.A. 127, 150, 152–55. 2 During jury selection,
the prosecutor used a peremptory challenge to strike this
prospective juror. See id. at 143. Bryant objected and argued
that the prosecutor’s peremptory strike violated Batson. See
id. at 149–50, 152–54; Appellant’s Am. Sealed Br. 17–18.
The district court considered Bryant’s Batson challenge,
including his contention that the woman in question was
Hispanic. The district court found that she was white and that
2
Citations to “J.A.” refer to the joint appendix. Citations
to “A.J.A.” refer to the amended joint appendix.
8
the government’s peremptory strike was neutral. See J.A. 154-
55. Initially, Bryant complains that the jury questionnaire did
not have a Hispanic or Latino box to check concerning race 3 and
that the district court’s decision concerning the juror’s
classification was based on how the individual in question
appeared and was therefore improperly based on a stereotype.
See id. at 154 (“Your Honor, there’s no such thing as a Hispanic
look, especially coming from a law firm that represents a huge
number of Hispanics. It runs all the color hues of skin and
hair.”). Bryant also contends that because the challenged
individual had a “Hispanic last name,” the district court
erroneously failed to ask the individual her race. See id. at
152, 154.
Even assuming that the challenged individual was a member
of a racial or ethnic minority (e.g., a Latina), the prosecutor
provided a neutral explanation for striking the prospective
juror. Specifically, when Bryant raised his Batson challenge,
the prosecutor explained that he struck the individual in
question because she was a school psychologist whom the
government feared might be overly sympathetic to Bryant. See
J.A. 153. This reason is a clear, specific, neutral explanation
3
The jury survey also lacked a separate question for
ethnicity. See J.A. 125–42.
9
for the peremptory strike. See Batson, 476 U.S. at 97–98 &
n.20. Moreover, we have reviewed the record concerning Bryant’s
Batson challenge to this prospective juror. See J.A. 148-55.
The district court did not err in considering and overruling
Bryant’s Batson objection.
III.
Next, Bryant raises several challenges under Crawford v.
Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court
held that the Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not
appear at trial unless [the witness] was unavailable to testify,
and the defendant had had a prior opportunity for cross-
examination.” 541 U.S. at 53–54. Bryant contends that the
district court erroneously admitted various “testimonial”
statements and thereby violated the Sixth Amendment.
A.
First, Bryant argues that the district court erred in
admitting the testimony of Charlottesville Police Officer Web
Stokes (“Officer Stokes”) in two respects. Officer Stokes’
testimony arose from an incident in which Bryant and Lorenzo
Timberlake (“Timberlake”) opened fire on the home of Robert
Pryor (“Pryor”) (another drug dealer in Charlottesville) in
retaliation for Pryor’s theft of drugs belonging to Project
10
Crud. See, e.g., A.J.A. 1255–75. Initially, Bryant contends
that the district court erred when it allowed Officer Stokes to
testify as to what Glenetta Smith, a government witness who
lived near Pryor’s house, said and did during a photo lineup
that Officer Stokes conducted while investigating the Pryor
house shooting. See, e.g., Appellant’s Am. Sealed Br. 24–28.
Officer Stokes testified that shortly after the Pryor house
shooting, he prepared a photo lineup and showed it to Glenetta
Smith. See A.J.A. 1343. According to Officer Stokes, Glenetta
Smith identified Bryant in the lineup. See id. at 1343–44.
Bryant argues that Officer Stokes’ testimony concerning Glenetta
Smith’s identification of Bryant in the photo lineup violates
Crawford. See Appellant’s Am. Sealed Br. 26–28.
In Crawford, the Supreme Court declined to comprehensively
define what constitutes a “testimonial” statement. See
Crawford, 541 U.S. at 68. However, “[w]hatever else the term
[testimonial] covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations.” Id. Further, the Court
stated that “[a]n accuser who makes a formal statement to
government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.” Id. at 51;
see also Davis v. Washington, 547 U.S. 813, 822 (2006).
11
We assume, without deciding, that Officer Stokes’ testimony
concerning Glenetta Smith’s identification of Bryant was
“testimonial” and violated Crawford. We next analyze whether
the alleged Confrontation Clause error was harmless. See, e.g.,
United States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) (“We
need not decide whether the district court erred [under
Crawford], however, because we hold that any error would be
harmless in light of the other evidence inculpating [the
defendant].”); United States v. Khan, 461 F.3d 477, 496 (4th
Cir. 2006) (“We do not reach the question of whether [the
witness’s] statements were admitted in violation of the Sixth
Amendment because, to the extent that any error occurred, it was
harmless.”).
“[A] Confrontation Clause violation may be found harmless
on appeal.” Banks, 482 F.3d at 741 (citing Khan, 461 F.3d at
496; Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring in
the judgment)). An error is harmless when the reviewing court
can say with confidence that, after considering all that
occurred, and without severing the erroneous action from the
whole, the judgment was not substantially swayed by the error.
Banks, 482 F.3d at 741–42; see Khan, 461 F.3d at 496; cf. Fed.
R. Crim. P. 52(a).
Here, ample evidence beyond Officer Stokes’ testimony
concerning Glenetta Smith’s identification of Bryant tied Bryant
12
to the Pryor house shooting. In particular, Timberlake provided
detailed testimony to the jury about how he and Bryant fired
multiple rounds into Pryor’s house, including considerable
details about their transit, point of attack, weapons used, and
flight from the scene. See A.J.A. 1255–75. Although Bryant
complains that Timberlake was a cooperating witness and was
therefore unreliable, the jury was entitled to credit
Timberlake’s testimony. We conclude that the judgment was not
substantially swayed by Officer Stokes’ testimony about Glenetta
Smith’s identification of Bryant, even assuming (without
deciding) that the district court erred in admitting the
4
identification testimony.
4
Unlike a typical Crawford objection where the declarant
does not testify at trial, Glenetta Smith testified at trial.
In fact, Glenetta Smith testified before Officer Stokes
testified. During Glenetta Smith’s testimony, she mentioned
that she spoke with Officer Stokes shortly after the shooting,
but she did not testify about her conversation with Officer
Stokes. See A.J.A. 1192. Further, during her testimony,
neither the government nor Bryant asked Glenetta Smith about her
identification of Bryant to Officer Stokes. Cf. Fed. R. Evid.
801(d)(1)(C). Officer Stokes testified after Glenetta Smith,
and his testimony included Glenetta Smith’s identification of
Bryant. During Bryant’s case, Bryant did not recall Glenetta
Smith to testify about her alleged identification of Bryant to
Officer Stokes.
The parties dispute whether Glenetta Smith was
“unavailable” within the meaning of Crawford when the district
court excused her following her testimony. Compare Appellant’s
Sealed Reply Br. 6 with Appellee’s Am. Sealed Br. 44. The
parties also dispute whether Bryant (through counsel) withdrew
his Crawford objection to Officer Stokes’ identification
(Continued)
13
Next, Bryant argues that the district court erroneously
allowed Officer Stokes to testify about what Glenetta Smith told
him she saw on the night of the Pryor house shooting. See
Appellant’s Am. Sealed Br. 26–28. Officer Stokes testified that
Glenetta Smith told him that she had seen “two black males, one
of which was shorter and stocky and very dark-skinned, and then
another one who was taller, probably over six feet, and more
slender and light-skinned.” See A.J.A. 1337. Bryant contends
that Officer Stokes’s testimony concerning what Glenetta Smith
said violates Crawford. See Appellant’s Am. Sealed Br. 26–28.
Again, assuming (without deciding) that Officer Stokes’
testimony constitutes Crawford error, we conclude that it was
harmless. Notably, before Officer Stokes testified, Glenetta
Smith testified that she heard a long, loud sound like someone
was beating on a trash can. See A.J.A. 1190. She then looked
out of her window and saw a tall, light-skinned black male and a
shorter, dark-skinned black male running away from Pryor’s house
towards Forest Hill Park. See id. at 1191–92. Bryant (through
counsel) then cross examined Glenetta Smith about what she heard
testimony and thereby waived (except for plain error) his right
to object. Cf. A.J.A. 1344 (“I withdraw that objection because
I’m going to be crossing [Officer Stokes] about [the
identification].”). Because we conclude that any error in
admitting Officer Stokes’ contested identification testimony was
harmless, we need not decide either of these issues.
14
and saw that evening. Id. at 1192–93. Officer Stokes’s
testimony concerning what Glenetta Smith said to him essentially
duplicated Glenetta Smith’s testimony. In light of Glenetta
Smith’s testimony, we conclude that the judgment was not
substantially swayed by Officer Stokes’ testimony concerning
what Glenetta Smith said to him.
B.
Next, Bryant argues that the district court erred in
admitting two documents into evidence over his Crawford and
hearsay objections: a record of a gun transaction and a
declaration of non-records from the Internal Revenue Service.
See Appellant’s Am. Sealed Br. 28. First, Bryant contends that
the district court erred when it admitted an ATF Form 4473 from
a gun shop connected with the purchase of a .454 pistol. See
id.The dispute concerns Bryant’s connection to a .454 pistol.
Everette Smith (a convicted felon and drug dealer in
Charlottesville) testified that he convinced Sam Jones (“Jones”)
(a man with no prior felony convictions) to purchase a .454
pistol for Everette Smith. See A.J.A. 1203-07, 1212–14.
Everette Smith explained that, in exchange for Jones purchasing
the weapon, he paid Jones $200 worth of crack cocaine. Id. at
1206. Everette Smith also testified that he accompanied Jones
to the gun shop in approximately November 2003 when Jones
15
completed the paperwork to purchase the weapon and paid for the
weapon. Id. at 1206-07. Everette Smith also accompanied Jones
when they returned to the shop to pick up the weapon. Id. at
1207. Everette Smith testified that he later sold the .454
pistol to Bryant for two pounds of marijuana. See id. at 1212–
14. Bryant (through counsel) cross examined Everette Smith.
Id. at 1222-36. Sam Jones did not testify.
To corroborate Everette Smith’s testimony about Jones
purchasing the weapon for Smith and to help rebut the defense
contention that Smith was fabricating the story about obtaining
the weapon from Jones and later selling it to Bryant, the
government introduced Jones’ application to purchase the .454
pistol as a business record from the gun shop. See id. at 1482–
88. The application is an ATF Form 4473 that Jones completed
before purchasing the weapon. See id. at 1488. The government
introduced the ATF Form 4473 through ATF Agent John Stoltz, who
testified that he received the ATF Form 4473 from the president
of the gun shop. Id. at 1482-83. As part of the government’s
proof, Agent Stoltz also provided an affidavit from the gun
shop’s president consistent with Federal Rule of Evidence
16
902(11). 5 See id. at 1483–84. Bryant objected at trial to the
ATF Form 4473, and argues on appeal, that this document violates
Crawford and Federal Rules of Evidence 802 and 805. See id.;
Appellant’s Am. Sealed Br. 28.
As for the Crawford objection, the ATF Form 4473 contains
Sam Jones’ application to purchase a firearm. A.J.A. 1487–88.
5
Rule 902(11) provides:
Certified domestic records of regularly conducted
activity.—The original or a duplicate of a domestic
record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a
written declaration of its custodian or other
qualified person, in a manner complying with any Act
of Congress or rule prescribed by the Supreme Court
pursuant to statutory authority, certifying that the
record—
(A) was made at or near the time of the occurrence of
the matters set forth by, or from information
transmitted by, a person with knowledge of those
matters;
(B) was kept in the course of the regularly conducted
activity; and
(C) was made by the regularly conducted activity as a
regular practice.
A party intending to offer a record into evidence
under this paragraph must provide written notice of
that intention to all adverse parties, and must make
the record and declaration available for inspection
sufficiently in advance of their offer into evidence
to provide an adverse party with a fair opportunity to
challenge them.
Fed. R. Evid. 902(11).
17
Agent Stoltz explained that an ATF Form 4473 “is a firearms
transaction form that is filled out at the time of purchase by
all people who wish to purchase firearms. It basically lists
the person’s name, address, and has various questions that need
to be filled out [by and regarding the purchaser] at the time of
purchase.” Id. at 1488. The form identifies Sam Jones as the
purchaser. See id.
Even if we assume that the Form 4473 was testimonial
hearsay with respect to Bryant, Everette Smith testified that he
accompanied Jones to buy the weapon, watched Jones complete
paperwork to buy the weapon, went with Jones to pick up the
weapon at the gun shop, and later sold the weapon to Bryant.
See A.J.A. 1203–07, 1212–14. Regardless of the ATF Form 4473
and regardless of the person from whom Everette Smith got the
weapon, Smith’s testimony tied Bryant to the weapon. Moreover,
Bryant had full and fair opportunity to cross examine Everette
Smith. See id. at 1222-36. Accordingly, even if admitting the
Form 4473 was Crawford error, the error was harmless. See,
e.g., Banks, 482 F.3d at 741–42; Khan, 461 F.3d at 496; cf. Fed.
R. Crim. P. 52(a).
Bryant also argues that admitting the Form 4473 violates
Federal Rules of Evidence 802 and 805 because it “contains
multiple levels of hearsay.” See Appellant’s Am. Sealed Br. 28;
see also A.J.A. 1483. The government responds that the Form
18
4473 is an admissible business record. See Appellee’s Am. Br.
40–41; Fed. R. Evid. 803(6).
Even were we to conclude that the district court
erroneously admitted the Form 4473, the error was harmless.
Ample evidence beyond the Form 4473 tied Bryant to the .454
pistol. That evidence included Everette Smith’s testimony that
he sold the .454 pistol to Bryant in exchange for marijuana.
Next, Bryant contends that the district court erred in
admitting a “certification of nonexistence of records” (“CNR”)
from the Internal Revenue Service (“IRS”) indicating that he had
not paid income taxes during times relevant to the indictment,
and thus inviting the jury to draw the inference that Bryant
derived his income and various assets from selling drugs. See
Appellant’s Am. Sealed Br. 28. Bryant argues that CNRs are “the
very essence of testimonial evidence.” Id.The district court considered and rejected Bryant’s
Crawford challenge to the IRS CNR. See United States v. Bryant,
No. 3:04-CR-47, 2006 WL 1700107, at *1–*4 (W.D. Va. June 15,
2006) (unpublished). In rejecting the Crawford argument, the
district court relied on cases from the Fifth and Ninth Circuits
analyzing CNRs from Immigration and Customs Enforcement (“ICE”).
See id. at *2 (citing United States v. Cervantes-Flores, 421
F.3d 825, 830–34 (9th Cir. 2005) (per curiam); United States v.
Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (per curiam)).
19
Since the district court’s decision, other circuit courts have
concluded that ICE CNRs are nontestimonial. See United States
v. Burgos, 539 F.3d 641, 644–45 (7th Cir. 2008) (“The reported
cases from the other circuits that have considered the question
are unanimous in holding that an alien's warrant of deportation
and CNR are nontestimonial business records not subject to the
requirements of the Confrontation Clause under Crawford.”);
accord United States v. Mendoza-Orellana, 133 F. App’x 68, 70
(4th Cir. 2005) (per curiam) (unpublished) (finding that ICE CNR
admitted as self-authenticating public record was not
testimonial under Crawford).
In opposition to the analysis concerning ICE CNRs, Bryant
notes that this case involves an IRS CNR. See Appellant’s
Sealed Reply Br. 8. Bryant then argues that an IRS CNR is more
likely to be inaccurate because the IRS (unlike ICE) is a huge
organization responsible for keeping records on all taxpayers in
America. See id.Initially, we question the premise that the IRS is more
likely to commit record-keeping errors than ICE. Certainly,
nothing in the record supports this conclusion. More
importantly, whether the IRS is more likely to commit record-
keeping errors than ICE does not illuminate whether an IRS CNR
or an ICE CNR is testimonial under Crawford. Cf. Crawford, 541
U.S. at 56 (noting that some examples of hearsay “by their
20
nature were not testimonial—for example, business records”). As
to that issue, we conclude that the IRS CNR is not testimonial
under Crawford. See, e.g., Burgos, 539 F.3d at 644-45;
Cervantes-Flores, 421 F.3d at 830–34; Rueda-Rivera, 396 F.3d at
680; see also Udeozor, 515 F.3d at 268–70.
Alternatively, even if we assume that the district court
erroneously admitted the IRS CNR, the alleged error was
harmless. The government presented considerable evidence of
Bryant’s lavish lifestyle and absence of legitimate work
history, even without the IRS CNR. See, e.g., Bryant, 2006 WL
1700107, at *3–*4 (recounting the evidence of Bryant’s
unexplained wealth, including $20,000 in cash found in his
Cadillac Escalade). In sum, we reject Bryant’s Crawford and
hearsay arguments. 6
IV.
Finally, we address one housekeeping matter. The jury
convicted Bryant on eight counts, including both a drug
conspiracy in violation of 21 U.S.C. § 846 (i.e., count 1), and
of engaging in a continuing criminal enterprise in violation of
6
Bryant (through counsel and in his pro se brief) raised
numerous other arguments. We have carefully examined all of
these arguments. The arguments lack merit and do not warrant
further discussion.
21
21 U.S.C. § 848(a) and (b) (i.e., count 2). 7 The district court
sentenced Bryant to life in prison for the continuing criminal
enterprise conviction, but did not impose a sentence for the
section 846 conviction. See J.A. 419.
In failing to impose a sentence on the section 846
conviction, the district court acted properly. In Jeffers v.
United States, 432 U.S. 137 (1977) (plurality opinion), a
plurality of the Supreme Court held that imposing sentence on
both a 21 U.S.C. § 846 conspiracy count and a 21 U.S.C. § 848continuing criminal enterprise (“CCE”) count was improper,
because Congress did not intend cumulative penalties under
section 846 and section 848. See 432 U.S. at 156 (“Section 848
itself reflects a comprehensive penalty structure that leaves
little opportunity for pyramiding of penalties from other
sections of the Comprehensive Drug Abuse Prevention and Control
7
Bryant was convicted of (1) conspiracy to distribute or
possess with intent to distribute 50 grams or more of cocaine
base, 5 kilograms or more of powder cocaine, and marijuana (21
U.S.C. §§ 846, 841(a)(1), 859, 860, and 861); (2) engaging in a
continuing criminal enterprise (21 U.S.C. § 848 (a) and (b));
(3) conspiracy to conduct and participate in a racketeer
influenced and corrupt organization (RICO) (18 U.S.C. §
1962(d)); (4) possession with intent to distribute marijuana (21
U.S.C. § 841 (a)(1)); (5) possession of a firearm during and in
relation to a drug trafficking crime (18 U.S.C. § 924(c)); (6)
attempted murder, violent crime in aid of racketeering activity
(18 U.S.C. §§ 2 and 1959(a)(5)); and (7) two counts of threat to
murder, violent crime in aid of racketeering activity (18 U.S.C.
§§ 2 and 1959(a)(4)). See J.A. 417-18.
22
Act of 1970.”); see also Rutledge v. United States, 517 U.S.
292, 300 (1996) (“For the reasons set forth in Jeffers, . . . we
hold that this element of the CCE offense requires proof of a
conspiracy that would also violate § 846. Because § 846 does
not require proof of any fact that is not also a part of the CCE
offense, . . . conspiracy as defined in § 846 does not define a
different offense from the CCE offense defined in § 848.”). We
have applied Jeffers to require that, where a defendant is
convicted of both a section 846 count and a section 848 count,
the section 846 conviction must be vacated. See, e.g., United
States v. Heater, 63 F.3d 311, 318 (4th Cir. 1995); United
States v. Porter, 821 F.2d 968, 978 (4th Cir. 1987) (“Congress
did not intend that an individual be punished under both § 846 .
. . and § 848 . . . .”). In this case, Heater applies. Thus,
as in Heater, “[w]e need only take the next step and instruct
the district court to vacate the conspiracy conviction itself.”
63 F.3d at 318.
V.
For the reasons explained above, we affirm Bryant’s
convictions and sentence. Because we affirm Bryant’s 21 U.S.C.
§ 848 conviction, we remand this action with instructions for
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the district court to vacate Bryant’s 21 U.S.C. § 846conviction. We affirm the balance of the judgment.
AFFIRMED AND REMANDED WITH INSTRUCTIONS
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