United States v. Daniels

Rehearing granted, June 19, 2009 for the limited purpose of filing corrected opinion
CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4770
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAL DANIELS,
Defendant - Appellant.
No. 07-4771
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAL DANIELS,
Defendant - Appellant.
No. 07-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAL DANIELS,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00103-RJC-2; 3:05-cr-00265;
3:06-cr-00082)
Argued: October 30, 2008 Decided: April 21, 2009
Corrected Opinion Filed: June 19, 2009
Before GREGORY and DUNCAN, Circuit Judges, and Richard D.
BENNETT, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed in part, vacated in part, and judgment withheld in part
by unpublished opinion. Judge Bennett wrote the opinion, in
which Judge Gregory joined. Judge Duncan wrote a dissenting
opinion.
ARGUED: Kevin Andre Tate, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Ross Richardson, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BENNETT, District Judge:
Defendant Jermal Daniels (“Daniels”) appeals his
convictions and sentences for several offenses, including
conspiracy to possess with intent to distribute one kilogram or
more of heroin and 500 grams or more of cocaine, in violation of
21 U.S.C. §§ 841 and 846. In this appeal, Daniels raises three
issues. First, Daniels argues that his arrest was not supported
by probable cause and that the trial court erred in refusing to
suppress evidence obtained as a result of the search of his
person, the use of a key in the lock of an apartment where he
resided, and the issuance of a search warrant for that same
location. In addition, Daniels appeals his sentence for the
convictions, contending that the trial court improperly applied
offense level enhancements based on a finding that Daniels held
a leadership role in the conspiracy and that he had obstructed
justice. Finally, Daniels contends that the district court
erred by failing to instruct the jury to find the amounts of
drugs individually attributable to him under the conspiracy
charge, in violation of United States v. Collins, 415 F.3d 304(4th Cir. 2005). Because of this error, Daniels contends that
his mandatory life sentence for the conspiracy charge cannot
stand because a proper instruction would have permitted the jury
to find a reduced drug quantity attributable to him, leading to
a reduced statutory sentence under 21 U.S.C. § 841(b). We
3
affirm the district court’s rulings on the suppression motions
and the sentence enhancements. However, as to Daniels’
challenge of the jury instructions, we find reversible Collins
error and withhold judgment on the conspiracy charge for thirty
days. The Government may choose between remand for resentencing
under the default penalty provision in § 841(b)(1)(B) (providing
for a sentence of ten years to life in prison), or remand for a
new trial.
I.
On March 3, 2005, officers of the Charlotte Mecklenburg
Police Department arrested one of their informants, Adreian
Jackson, for selling drugs to another informant. (J.A. 125,
559.) Jackson was on pretrial release following his indictment
in August of 2004 on charges of conspiracy to distribute illegal
drugs. (J.A. 121, 554.) Officers learned in early 2005 that
Jackson was trafficking in heroin and cocaine in violation of
the conditions of his release and they conducted three
controlled buys from Jackson, leading to his March 3rd arrest.
(J.A. 125, 159-60, 295, 558, 591, 708-10, 713, 717.)
After agreeing to cooperate with the police, Jackson
arranged to meet with Daniels, who was one of his suppliers, in
the parking lot of a Bi-Lo grocery store on Albemarle Road in
Charlotte, North Carolina. The police officers waited in the
4
grocery store parking lot and Jackson identified Daniels when he
appeared in a burgundy Chevrolet Impala. (J.A. 168, 731.)
Jackson also identified co-defendant Corey Edwards, who arrived
separately in a red Ford Expedition. (J.A. 167-68.) Once
Edwards entered the passenger’s side of the Impala, the officers
initiated a “take down” and arrested both defendants. (J.A.
168, 731.) Incident to the arrest, police searched Daniels’
person and found four bundles, each containing ten bags, of
heroin in his underwear. (J.A. 132, 734.) During their search
of the Impala, police found two cell phones and approximately
$2,200 in cash. (J.A. 740.)
After Daniels’ arrest, Jackson rode with Detective Jimmy
Messer to a nearby apartment complex, where Jackson identified
cars within the complex as belonging to Daniels and his
girlfriend, Toria Douglas. (J.A. 304.) After running the
license plate on his girlfriend’s car, the police pinpointed the
address of 1305 Kelston Place, Apartment 106 as a residence of
Daniels. (J.A. 317.) The police maintained surveillance on
the apartment until an officer arrived with a key the police had
seized from Daniels during his arrest. (J.A. 135-36.) Officers
inserted and turned the key to confirm it unlocked the door to
Apartment 106. (J.A. 135-36.)
After Daniels denied consent to search the apartment,
Detectives Arthur Robson and Chris Kimbell applied for a search
5
warrant. (J.A. 58-61.) In their supporting affidavit, the
officers asserted that a confidential and reliable informant
pointed out the car as the vehicle owned and driven by Daniels.
In addition, the application averred, inter alia, that Daniels
possessed a key that unlocked the door to Apartment 106 of 1305
Kelston Place. (J.A. 58-61.) Officers later searched Apartment
106 and seized several baggies of heroin and powder cocaine,
equipment used for packaging drugs, cash totaling $63,060, six
firearms, a bulletproof vest, and different types of ammunition.
(J.A. 755-64, 816, 825.)
Prior to trial, Daniels filed two Motions to Suppress,
arguing that the court should not admit evidence and statements
that were derived from the officers’ strip search of his person,
the unauthorized use of the key in the door of Apartment 106 of
1305 Kelston Place, and the subsequent search of that location
pursuant to a warrant that was false and misleading. (J.A. 40,
234.) The district court held two suppression hearings to
consider these arguments and denied both Motions to Suppress.
Defendant Daniels was one of eight defendants charged in a
thirteen-count Third Superseding Indictment filed on May 25,
2006 in the United States District Court for the Western
District of North Carolina. Count One charged Daniels with
conspiracy to possess with intent to distribute one kilogram or
more of heroin and 500 grams or more of cocaine in violation of
6
21 U.S.C. §§ 846 and 841(b)(1)(A). Count Five charged Daniels
with possession with intent to distribute heroin and aiding and
abetting in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)
and 18 U.S.C. § 2. Count Six charged Daniels with possession
with intent to distribute 500 grams or more of cocaine and
aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) and 18 U.S.C. § 2. Count Seven alleged possession
of a firearm during and in relation to a drug trafficking crime
in violation of 18 U.S.C. § 924(c). Count Eight alleged
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g). Count Thirteen alleged intimidating and
threatening a witness in violation of 18 U.S.C. § 1512(b).
(J.A. 371-77.)
On June 13, 2006, the jury returned its verdict convicting
Daniels on all counts. With respect to Count One, the jury
found that one kilogram or more of heroin was “reasonably
foreseeable to [Defendant]” and that 500 grams or more of
cocaine was “reasonably foreseeable to [Defendant].” (J.A.
1809.) A Presentence Investigation Report (“PSR”) was prepared.
As to Counts One, Five, and Six, the PSR recommended a four
level enhancement to his base offense level pursuant to U.S.S.G.
§ 3B1.1(a), for Daniels’ role as a leader. (J.A. 1886.) The
PSR also recommended an additional increase of two levels
pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. (J.A.
7
1886.) As to Count Thirteen, the PSR recommended an increase of
eight levels, pursuant to U.S.S.G. § 2J1.21(b)(1)(A), because
the offense included threatening a witness and causing the
witness to recant statements made to law enforcement. (J.A.
1887.)
At the sentencing hearing, Daniels objected to the
enhancements for obstruction of justice and leadership role, and
objected to the statutory sentencing range of mandatory life
imprisonment based upon threshold drug quantity, arguing that
the drug amounts found by the jury could not be used because the
jurors were improperly instructed regarding drug amounts. (J.A.
1778-88, 1829-32.) The court overruled Daniels’ objections
regarding the drug amounts found by the jury and the guideline
enhancements for leadership role and obstruction of justice.
(J.A. 1829-32, 1842, 1846.) The court imposed a life sentence
on Count One to be served consecutively with a term of 60 months
on Count 7 and concurrently with terms of 360 months for Counts
5 and 6 and terms of 120 months for Counts 8 and 13. (J.A.
1853-54.) This appeal followed.
II.
Daniels contends that his March 3, 2005 arrest was not
based on probable cause. In addition, he argues that the
district court erred in denying his Motions to Suppress, which
8
challenged the admissibility of evidence obtained as a result of
the search of his person, the use of his key in the lock of
Apartment 106 at 1305 Kelston Place, and the affidavit
supporting the search warrant for that same location.
In considering Daniels’ claims and the district court’s
denial of his Motions to Suppress, this Court reviews legal
determinations de novo and factual findings for clear error.
See United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997).
A.
Daniels contends that the police did not have probable
cause to arrest him in the parking lot of the Bi-Lo grocery
store on Albemarle Road on the evening of March 3, 2005, and
that the evidence obtained as a result should have been
excluded. 1
We have explained that “[a]n officer has probable cause for
arrest when, at the time the arrest occurs, the facts and
circumstances within the officer’s knowledge would warrant the
belief of a prudent person that the arrestee had committed or
was committing an offense.” United States v. Manbeck, 744 F.2d
360, 376 (4th Cir. 1984) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964)). The Supreme Court has held that the probable cause
determination is made through consideration of “the totality of
1
Daniels raised this argument in his pro-se supplemental
brief filed with our permission.
9
the circumstances.” Illinois v. Gates, 462 U.S. 213 (1983). In
addition, the Court has noted that “even in making a warrantless
arrest an officer ‘may rely upon information received through an
informant, rather than upon his direct observations, so long as
the informant’s statement is reasonably corroborated by other
matters within the officer’s knowledge.’” Id. at 242 (quoting
Jones v. United States, 362 U.S. 257, 269 (1960)).
An objective review of “totality of the circumstances”
supports the conclusion that there was sufficient probable cause
for Daniels’ arrest. The police officers planned their take-
down on the basis of information provided by their informant,
Jackson, who had arranged to meet with Daniels to perform a drug
deal in the parking lot of the Bi-Lo grocery store. While the
officers were waiting, they witnessed a red Ford Expedition pull
into the parking lot and they noticed that the driver was
looking around and not getting out of his vehicle. Detectives
Kimbell and Robson stated that these circumstances were
suspicious because they knew from training and experience that
suppliers sometimes conduct more than one transaction in the
same location. (J.A. 130, 169.) Upon Daniels’ arrival in the
parking lot, police noted that the appearance of Daniels and his
burgundy Impala corroborated the description that Jackson had
earlier provided. In addition, Jackson had identified both
Daniels and Edwards, who the police had already suspected of
10
engaging in illegal drug trafficking. Once Edwards had entered
the passenger side of Daniels’ Impala, the officers had
determined that there was sufficient probable cause to initiate
the take-down. In view of this sequence of events, as exhibited
in the record, we conclude that “the facts and circumstances
within the officers’ knowledge” supported their belief that
Daniels was committing an offense and that probable cause
existed for his arrest. See Manbeck, 744 F.2d at 376.
B.
Next, Daniels contends that the district court erred in
refusing to suppress the four bundles of heroin obtained by the
arresting officers’ unconstitutional strip search of his person.
Upon arrest an officer may search the person of the
arrestee and the area within the arrestee’s immediate control.
Illinois v. Lafayette, 462 U.S. 640, 644 (1983). However, such
searches must be reasonable under the Fourth Amendment. In Bell
v. Wolfish, 441 U.S. 520, 559 (1979), the Supreme Court
prescribed an analytical framework for assessing the
reasonableness of a search that balances the need for the search
against any invasion of personal rights that may result. The
inquiry involves a contextual weighing of the totality of the
circumstances, including “the scope of the particular intrusion,
the manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted.” Id.11
At the suppression hearing Detective Kimbell testified that
he physically pulled the waistband of defendant’s sweatpants
outward approximately three inches and looked straight down into
his underwear with a flashlight and that he did so without
exposing Daniels to the public. (J.A. 151.) Detective Robson
testified that he observed Det. Kimbell “when he was pulling out
Daniels’ pants, and looking down into the crotch area” and added
that Det. Kimbell “pulled [Mr. Daniels’ pants] down, lifted them
in front, looked down and found the heroin under his scrotum
area.” (J.A. 181-82 (emphasis added).) Robson’s testimony
suggests the possibility that Daniels’ genital area may have
been momentarily exposed. However, even assuming that this
occurred, there is no proof that Daniels was exposed to anyone
other than Det. Kimbell. The search occurred at night and away
from Albemarle Road and a phalanx of male officers surrounded
Daniels as he was being searched. These facts indicate that
whatever intrusion occurred was limited in scope.
Moreover, employing the totality of the circumstances test
established in Bell, we find that the slight risk that Daniels
was exposed to the public was far outweighed by various factors
supporting the reasonableness and justification for the search.
Daniels was arrested and searched at the culmination of a
planned take-down for drug distribution--an offense that is
commonly associated with the possession of weapons and illegal
12
drugs. See Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)
(noting the significance, under the Bell inquiry, of whether the
relevant offense was “commonly associated by its very nature
with the possession of weapons or contraband.”). As a result,
the arresting officers’ search was justified not only by their
suspicion that Daniels was concealing contraband, but also
because Daniels presented a legitimate danger to their personal
security. The police initiated the arrest only after Daniels
and Corey Edwards had been identified and after much of the
information concerning the planned drug transaction provided by
the informant Jackson had been corroborated. During their
search of Daniels’ person, the officers first searched the outer
pockets of Daniels’ clothes. When they initially did not find
any weapons or drugs, they then proceeded to look in his
underwear, where they found four bundles of heroin. (J.A. 149-
50.) Also incident to the arrest, the police searched Daniels’
Impala, where they found approximately $2,200 in cash and two
cell phones. (J.A. 132, 170.)
In United States v. Dorlouis, 107 F.3d 248 (4th Cir. 1997)
the defendant objected to what he called “an unconstitutional
strip search” conducted incident to arrest when his pants were
removed inside of a police van. We concluded that the police
officers acted reasonably under the circumstances in attempting
to find missing money and that the defendant “was not subjected
13
to an unnecessarily intrusive search.” Id. at 256. The facts
in Dorlouis are sufficiently analogous to the facts in this
case, and after weighing all of the circumstances, we affirm the
district court’s ruling. The search of Daniels’ underwear was
not gratuitous in light of the officer’s reasonable suspicion
that illegal contraband was concealed in his pants. There is no
clear showing that Daniels was exposed to the public and we find
that the police officers acted reasonably under the
circumstances. 2
C.
Among the items seized from Daniels on the night of March
3, 2005, was a key which the officers had reason to believe
could access Apartment 106 of 1305 Kelston Place. (J.A. 749.)
While Daniels originally consented to the detectives’ use of the
key to access the residence, he ultimately revoked his consent.
(J.A. 173, 749.) Later the officers inserted the key into the
door lock of Apartment 106, which was accessible to the public.
The officers turned the key to confirm that it operated the lock
2
In support of his argument, Daniels cites Amaechi v. West,
237 F.3d 356, 365 (4th Cir. 2001) where we found a strip search
to be “unconstitutionally unreasonable.” But the Amaechi case
is easily distinguishable in several respects, as it involved a
female victim who was subjected to the “public exposure,
touching, and penetration of her genitalia and kneading of her
buttocks during a search incident to arrest for a misdemeanor
noise violation . . . where no security risk or threat of the
concealment or destruction of evidence was present.” Id. at
362.
14
but did not enter the apartment. (J.A. 136.) Daniels argues
that the detectives’ conduct in inserting the key into the lock
constituted an unreasonable warrantless search in violation of
his Fourth Amendment rights.
Our sister circuits are not in accord on whether a
defendant has a reasonable expectation of privacy in an external
door lock accessible from a public space. The First and Sixth
Circuits have ruled that there is no reasonable expectation of
privacy in such a lock and that the insertion and turning of a
key therein does not constitute a search. See United States v.
Salgado, 250 F.3d 438, 456-57 (6th Cir. 2001); United States v.
Lyons, 898 F.2d 210, 213 (1st Cir. 1990). The Seventh Circuit,
on the other hand, has concluded that there is a reasonable
expectation of privacy in a keyhole because a keyhole contains
information that is not readily accessible to strangers. United
States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991).
We need not rule on the precise issue of whether the
officers’ insertion and turning of a key into the door lock of
Apartment 106 contravened the Fourth Amendment, because even if
we assume that it was a search, it was not unreasonable. The
officers’ action was a means of identifying the apartment as one
to which the defendant had access. The officers employed a
legitimate crime investigative procedure that far outweighed
whatever minimal intrusion that Daniels may have experienced.
15
In this respect, the act is similar to the use of a narcotic
detection dog to “sniff” personal luggage--a non-intrusive
procedure that has been deemed constitutional. United States v.
Place, 462 U.S. 696, 706-07 (1983). Indeed, we are aware of no
precedent that has determined such conduct to be unreasonable,
for as the Seventh Circuit observed in Concepcion, “the privacy
interest [in a keyhole] is so small that the officers do not
need probable cause to inspect it.” Id. at 1173. We therefore
affirm the district court’s finding that Daniels’ Fourth
Amendment rights were not infringed by the officers’ use of a
key in the door lock of Apartment 106.
D.
Daniels next argues that the district court erred in
refusing to suppress evidence obtained from the execution of a
search warrant for Apartment 106 of 1305 Kelston Place. Daniels
claims that the government’s affidavit supporting the search
warrant omitted material information relating to the reliability
of the confidential informant, Adrein Jackson. Specifically,
the affidavit failed to mention that Jackson had been found
engaging in drug trafficking activity on three occasions in the
days prior to, and including, the day the search warrant was
sought. In addition, it failed to mention that Jackson had
attempted to flee from law enforcement on the day of his arrest
in March of 2005. Daniels contends that because of these
16
omissions, the supporting affidavit was constitutionally
insufficient and that the evidence obtained from the seizure
must be excluded under the “fruit of the poisonous tree
doctrine.” Wong Sun v. United States, 371 U.S. 471, 484 (1963).
The Fourth Amendment states that “no warrants shall issue,
but upon probable cause supported by oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend IV. Even
upon de novo review, “the determination of probable cause by the
issuing magistrate is entitled to great deference” from the
reviewing court. United States v. Hodge, 354 F.3d 305, 309 (4th
Cir. 2004). Indeed, “the duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for
concluding that probable cause existed.” Illinois v. Gates, 462
U.S. 213, 238-39 (1983) (alterations and internal quotation
marks omitted). There is a “strong ‘presumption of validity
with respect to the affidavit supporting the search warrant.’”
United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)
(quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)).
By alleging that the supporting affidavit contained
deliberately false statements or omissions, Daniels is
referencing the exception established in Franks v. Delaware, 438
U.S. 154 (1978) allowing a defendant, “in certain narrowly
defined circumstances . . . [to] attack a facially sufficient
17
affidavit.” Colkley, 899 F.2d at 300. In Franks, the Supreme
Court created a rule of “limited scope” which allows for a
Defendant to obtain a hearing in order to challenge a facially
sufficient affidavit after making a preliminary showing that
“(1) the affidavit in support of the search warrant contained
statements or omissions that were deliberately false or
demonstrated a reckless disregard for the truth, and (2) that
the challenged statements or omissions were essential to the
magistrate judge’s finding of probable cause.” 438 U.S. at 155-
56. If a Franks hearing is granted and the affiant’s material
falsity or recklessness is found by a preponderance of the
evidence, the warrant must be voided and the evidence procured
must be excluded. Id. at 156.
Daniels has not made the prerequisite showing of intent or
recklessness. In Colkley, we emphasized that to establish
“intent,” a defendant cannot merely claim that information was
knowingly or negligently omitted from an affidavit. 899 F.2d at
300-01. Instead, the omissions must be revealed as “designed to
mislead, or . . . made in reckless disregard of whether they
would mislead, the magistrate.” Id. at 301 (emphasis in
original). In this case, Daniels has not demonstrated that the
affiants, Detectives Robson and Kimbell, had any intent to
mislead. Nor will we infer any intent or recklessness from the
18
mere fact of the omission. See id. (refusing to infer bad
motive under Franks based upon the fact of an omission alone).
Furthermore, even if Daniels had satisfied the first prong
by showing intent, his pursuit of a Franks hearing would have
floundered for failure to prove the materiality of the omitted
information. To be material, an omission “must do more than
potentially affect the probable cause determination: it must be
‘necessary to the finding of probable cause.’” Colkley, 899
F.2d at 301 (quoting Franks, 483 U.S. at 156). Therefore, we
must determine whether if the information relating to Jackson’s
arrests had been included in the affidavit, sufficient probable
cause would have still existed under the “totality of the
circumstances” test established in Illinois v. Gates, 462 U.S.
213 (1983).
Despite the fact of Jackson’s ongoing drug trafficking, in
October of 2004, he had provided police with reliable
information about the drug conspiracy involved in the case,
including information implicating Daniels that was ultimately
corroborated. In addition, all of the information he gave to
detectives on March 3, 2005, that could be corroborated was
corroborated, including the arrival of Defendant at the location
of the drug deal in a vehicle matching the description he had
earlier offered. See United States v. Lalor, 996 F.2d 1578,
1581 (4th Cir. 1993) (“[a]n important factor in determining
19
whether an informant’s report establishes probable cause is the
degree to which it is corroborated.”). Moreover, additional
information in the affidavit lent further support for probable
cause. The detectives noted that they had linked Apartment 106
to Toria Douglas, who was identified through birth records as
the mother of Daniels’ baby girl, Semira Douglas, born on August
17, 2004. The detectives also stated in the affidavit that a
key seized from Daniels had unlocked the door lock of Apartment
106. Taken as a whole, the information in the affidavit was
substantial and detailed and provided a “substantial basis” for
probable cause. As the district court observed, “[Jackson was]
a bad actor providing reliable information.” (J.A. 341.)
Therefore, while the omitted reference to Jackson’s illegal
conduct did relate to his reliability, it was not material in
the Franks context--it would not have changed or altered the
magistrate’s finding. See United States v. Miller, 925 F.2d
695, 699-700 (4th Cir. 1991) (reliability of informant’s
information may be inferred from factual circumstances, even if
affidavit otherwise fails to assert informant’s reliability).
Viewing the circumstances as a whole and according the
state judge appropriate deference, we affirm the district court
ruling on the search warrant application. In doing so, we are
mindful of the stringent standard that must be met to convene a
20
Franks hearing and find that Daniels failed to make the
prerequisite “intent” or “materiality” showings.
III.
Daniels contends that his Fifth and Sixth Amendment rights
were violated by the district court’s offense level
enhancements. The district court applied a four-level
enhancement based on defendant’s role as leader of the
conspiracy and a two-level enhancement based on a finding that
Daniels obstructed or attempted to obstruct the administration
of justice. We review factual findings made by a district court
at sentencing for clear error. See, e.g., United States v.
Stewart, 256 F.3d 231, 253 (4th Cir. 2001).
A.
United States Sentencing Guideline § 3B1.1(a) directs the
sentencing court to increase a defendant’s offense level by four
if “the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive.”
The district court observed that Daniels exercised a
leadership role in a criminal activity that involved five or
more participants or was otherwise extensive. (J.A. 1842-43.)
This activity included, among other things, Daniels’ recruitment
of accomplices such as Charles McCombs as an enforcer. Daniels
21
made trips to New York to obtain drugs from a source and he
distributed these drugs through Adrian Jackson, William Boyd,
Corey Edwards and others in the vicinity of Beatties Ford Road
in Charlotte. Although Daniels claims that Raheem Williams was
not a part of the conspiracy, the testimony of other witnesses
supported his inclusion. Finally, Daniels’ girlfriend, Toria
Douglas, worked under his supervision and control by packaging
drugs and purchasing firearms. Because the record is replete
with evidence that Daniels played a leadership role in an
extensive conspiracy, the district court did not clearly err in
applying the four-level enhancement under § 3B1.1(a).
B.
Section 3C1.1 of the Sentencing Guidelines directs the
sentencing court to apply a two-level enhancement to a
defendant’s offense level where defendant “willfully obstructed
or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of the
conviction” and the obstructive conduct related to the
defendant’s offense of conviction and any relevant conduct or a
closely related offense. U.S.S.G. § 3C1.1. The Commentary to §
3C1.1 states that the enhancement should apply to conduct that
includes, but is not limited to: “(a) threatening, intimidating,
or otherwise unlawfully influencing a codefendant, witness or
22
juror, directly or indirectly, or attempting to do so; (b)
committing, suborning; or attempting to suborn perjury . . . ;
(c) producing or attempting to produce a false, altered, or
counterfeit document or record during an official investigation
or judicial proceedings . . . .”
The district court found that Daniels forced William Boyd
to write a letter recanting his earlier statements to law
enforcement implicating Daniels and Toria Douglas in the
distribution of cocaine and heroin. During trial, Boyd
testified that Daniels did not verbally threaten to harm him if
he refused to write the letter. However, Boyd explained that he
was sitting in the recreation yard of the jail when Daniels
stood over him and demanded that Boyd write the letter. Boyd
stated that he was intimidated by Daniels’ physical presence and
that he felt that he had no choice other than to comply. Based
upon this information in the record, the jury found beyond a
reasonable doubt that Defendant had intimidated Boyd through
this conduct. We likewise conclude that the district court did
not err in applying the two-level enhancement under § 3C1.1.
IV.
In Count One of the Superseding Indictment, Daniels was
charged with conspiracy to possess with intent to distribute
heroin and cocaine in violation of 21 U.S.C. §§ 841(a) and 846.
23
In its jury instructions, the district court outlined the
elements required to convict Daniels under the conspiracy charge
as well as under the substantive allegations of possession with
intent to distribute contained in Counts Five and Six. (J.A.
1708-1731.) However, the court failed to deliver a supplemental
instruction relating to the penalty subsection of 21 U.S.C. §
841(b) regarding the drug amount attributable to individual
defendants in the alleged conspiracy. Subsection 841(b)
presents a graduated penalty scheme establishing three different
sets of statutory minimum and maximum sentences for drug
distribution offenses based upon drug quantity. See §
841(b)(1)(A), (B), (C).
Daniels contends that the district court erred in failing
to expressly instruct the jury that it needed to make a finding
as to the drug quantity specifically applicable to him in
accordance with Pinkerton v. United States, 328 U.S. 640 (1946).
He notes Fourth Circuit precedent holding that such an error
infringes a defendant’s Sixth Amendment right to trial by jury.
See United States v. Collins, 415 F.3d 304, 313-14 (4th Cir.
2005) (vacating defendant’s sentence and remanding because of
district court’s failure to properly instruct jury on how to
determine drug amounts); United States v. Ferguson, 245 Fed.
Appx. 233, 237 (4th Cir. 2007) (same); United States v. Irvin, 2
F.3d 72, 78 (4th Cir. 1993) (mandating that sentencing court
24
consider the quantity of narcotics attributable to each co-
conspirator by relying on the principles set forth in
Pinkerton).
The Government contends that when considered together, the
district court’s jury instructions and the language in the
special verdict form comply with the mandate propounded in
Collins and that Daniels’ Sixth Amendment rights were not
violated.
Normally, the issue of whether the district court properly
instructed the jury on the law is reviewed de novo. United
States v. Thompson, 421 F.3d 278 (4th Cir. 2005). However,
because Daniels failed to object to the adequacy of the drug
quantity instruction at the time it was given, we review for
plain error. United States v. Foster, 507 F.3d 233, 249 (4th
Cir. 2007) (citing United States v. Olano, 507 U.S. 725, 732
(1993)). Under Federal Rule of Criminal Procedure 52(b), a
court of appeals may correct a district court upon
identification of an “error” that is “plain” and that “seriously
affect[s] substantial rights.” In addition, an appellate
court’s reversal under plain error review is incumbent upon a
finding that the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’”
Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S.
1, 15 (1985)).
25
Both the government and Daniels agree that our analysis
must be guided by the parameters established in United States v.
Collins, 415 F.3d 304 (4th Cir. 2005). Collins involved a
similar situation in which a defendant challenged his conviction
under 21 U.S.C. §§ 841(a) and 846, citing the district judge’s
failure to instruct the jury to apply Pinkerton principles in
determining the drug quantity for the penalty purposes of §
841(b). 3 This Court held that the threshold drug quantities for
penalty purposes under § 841(b) must be determined by a jury
beyond a reasonable doubt. 4 Furthermore, we held that a district
court must instruct a jury that in establishing the threshold
drug quantities, it must, pursuant to Pinkerton, determine the
quantity attributable to each co-conspirator--that is, the
3
In Pinkerton v. United States, 328 U.S. 640 (1946), the
Supreme Court held that in a criminal conspiracy case, a
defendant can only be held liable for conduct that is within the
scope of the criminal agreement and reasonably foreseeable as a
natural consequence of the agreement.
4
The progression of our analysis was summarized in United
States v. Brooks, 524 F.3d 549, 557-61 (4th Cir. 2008). We
first held in United States v. Irvin, 2 F.3d 72, 77 (4th Cir.
1993) that a trial court must determine by a preponderance of
the evidence the drug quantity attributable to a particular
defendant. We were then guided by the Supreme Court’s
conclusion in Apprendi v. New Jersey that “any fact that
increases the penalty . . . beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. 466, 490 (2000). Accordingly, in
United States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en
banc), cert. denied, 535 U.S. 109, 122 S. Ct. 2296, 152 L. Ed.
2d 1053 (May 28, 2002), we held that a jury must determine the
drug quantity to establish a defendant’s statutory sentencing
range under 21 U.S.C. § 841(b).
26
amount that was in furtherance of the conspiracy and reasonably
foreseeable to each defendant as opposed to the conspiracy as a
whole. Collins, 415 F.3d at 314 (citing United States v. Irvin,
2 F.3d 72 (4th Cir. 1993)).
At the close of Daniels’ trial the jury was instructed that
a conspirator “is responsible for offenses committed by another
co-conspirator if the conspirator was a member of the conspiracy
when the offense was committed, and if the offense was committed
in furtherance of, or as a foreseeable consequence of, the
conspiracy.” (J.A. 1717.) This satisfactorily references
Pinkerton principles as to the general conspiracy offense under
§ 846. However, an equivalent supplemental instruction was not
provided as to the sentencing provision in § 841(b) that
addresses drug quantity. The only instruction given to the jury
relating to drug quantity reads:
Your decision regarding the quantity and type of
substance must be unanimous as to each substance and
each amount. You will be provided with a special
verdict form that specifically addresses the drug and
quantity to be considered. (J.A. 1715.)
The Government argues that the special verdict form
supplemented and compensated for omissions in the jury
instruction. That special verdict form asks the jury to
determine whether defendant was guilty of the substantive
conspiracy offense and then asks whether “one kilogram or more
of a mixture and substance containing a detectable amount of
27
heroin was reasonably foreseeable” to Defendant and whether “500
grams or more of a mixture and substance containing a detectable
amount of cocaine reasonably foreseeable” to Defendant. (J.A.
1762.) After oral argument, the Government noted an unpublished
opinion by another panel of this Court in United States v.
Howard, No. 07-4146, 2009 U.S. App. LEXIS 1716 (4th Cir. Jan.
29, 2009). 5 In that case, this Court addressed a case involving
three defendants in which the evidence that the overall drug
quantity was attributable to each of the three defendants was
“overwhelming and essentially uncontroverted” and it was found
that the Collins requirement was satisfied by a special verdict
form. Howard, 2009 U.S. App. LEXIS 1716, at *11-15.
Unpublished opinions are not binding precedent in this Circuit,
and we decline to hold that Collins error can be corrected by a
special verdict form. Furthermore, the facts in Howard are
distinguishable from the facts in this case. Defendant Daniels
was one of eight defendants charged in a thirteen-count Third
Superseding Indictment charging conspiracy in the possession and
distribution of both heroin and cocaine. The evidence in this
case as to the respective amounts of these two drugs
attributable to the numerous defendants was not overwhelming and
uncontroverted. A careful application of the principles
5
Supplemental submissions were filed by the Government and
Daniels pursuant to Rule 28(j) of the Federal Rules of Appellate
Procedure.
28
established in Collins and reiterated in Brooks was manifestly
important. The complexity of the evidence in this case
compelled a jury instruction satisfying the principles of
Collins and omissions in that jury instruction were not
alleviated by the special verdict form.
In Collins, we stated that “for purposes of setting a
specific threshold drug quantity under § 841(b), the jury must
determine what amount of [drugs] was attributable to [defendant]
using Pinkerton principles.” 415 F.3d at 314. The special
verdict form submitted to the jury superficially refers to the
Pinkerton principles when it asks the jury if certain quantities
of drugs were “reasonably foreseeable to Daniels.” However, we
find that the jury in this case was not sufficiently instructed
on the factors necessary to make an informed determination of
the threshold drug quantity under § 841(b). For instance, under
Pinkerton, the jury must determine not only the quantity of
drugs “reasonably foreseeable” to Daniels, but also that the
drugs were distributed “in furtherance of the conspiracy.” In
addition, the jury must be instructed to determine the amount of
drugs “attributable” to the individual defendant as a co-
conspirator, as opposed to the quantity of drugs distributed by
the entire conspiracy. At no point, in either the instructions
or the special verdict form, was the jury instructed to assess
29
the amount of drugs “attributable” to Daniels alone, rather than
to the conspiracy in its entirety.
The importance of explicitly instructing a jury under
Collins is poignantly revealed by the circumstances in this
case. The jury’s decisions on whether or not one kilogram of
heroin and 500 grams of cocaine were attributable to Daniels
under § 841(b) determined whether or not Daniels faced a
mandatory life sentence under Count One. This underscores the
need for an individualized sentence due to the significant
liberty interest at stake. To protect the need for an
individualized sentence, juries must be thoroughly and
explicitly instructed; courts cannot assume that the complex
issues relating to Pinkerton and drug quantity are obvious or
self-explanatory. In light of these concerns, we conclude that
Collins’ weighty mandate may not be satisfied by an isolated and
perfunctory reference in a special verdict form.
The jury was not sufficiently informed in accordance with
Collins. This infringed Daniels’ Sixth Amendment rights and
constituted plain error under the Olano analysis. In addition,
Daniels’ mandatory life sentence on the conspiracy count is more
punitive than the statutory default sentence under §
841(b)(1)(B), 6 which provides for a sentencing range of ten years
6
Daniels has at least one prior drug conviction that was
noticed by the government which raises the statutory maximum
30
to life. Because a life sentence is not lightly imposed, we
find that Daniels’ substantial rights were affected.
Having found that the three threshold prerequisites of
plain error review have been satisfied, we turn to the question
of whether to exercise our discretion under Rule 52(b) to notice
the forfeited error. The Supreme Court has held that an
appellate court’s discretion is appropriately exercised only
when the error “‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Olano, 507 U.S. at
736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). The Government argues that we should decline to notice
the error because “the overwhelming and essentially
uncontroverted evidence supported the conclusion that Defendant
was responsible for more than 1,000 grams of heroin and 500
grams of crack cocaine.” (Appellee Br. 32 (citing Foster, 507
F.2d at 252; United States v. Cotton, 535 U.S. 625, 633
(2002)).)
In United States v. Cotton, the Supreme Court found a Sixth
Amendment error when the government failed to allege drug
quantity in an indictment under § 846 consistent with the
principles set forth in Apprendi v. New Jersey, 530 U.S. 466(1990). See Cotton, 535 U.S. at 631-32. However, the Court
sentencing range contained in § 841(b)(1)(B) to between ten
years and life in prison.
31
declined to notice the infringement on plain error review in
light of the “overwhelming” and “essentially uncontroverted”
evidence that supported the district court’s drug quantity
determination. Id. at 633. The Cotton precedent has recently
been applied in United States v. Foster, a case involving a
challenge to jury instructions for failing to cite Pinkerton
principles for drug conspiracy charges. See 507 F.3d at 252.
In Foster, the Collins error was avoided due to “overwhelming
and essentially uncontroverted” evidence in the record of
defendant’s responsibility for an amount in excess of 50 grams
of crack. 507 F. 3d at 250-51. The government established that
Foster was a major distributer of crack in Lexington Terrace
neighborhood of Baltimore City, “where perhaps over fifty grams
of crack were sold on a daily basis, to continue for a
substantial period of time.” Id. at 252. The court noted that
“[u]nquestionably, if the jury was properly instructed per
Collins, the government’s overwhelming evidence of the
substantial quantities of crack reasonably foreseeable to Foster
would have set the maximum sentence at life imprisonment. . . .” 7
Id. at 252.
7
In United States v. Davis, a Collins error was not
noticed under harmless error review for several co-conspirators
because of overwhelming evidence of their responsibility for
amounts in excess of 50 grams of crack. 270 Fed. Appx. 236 (4th
Cir. 2008). The court concluded that no rational jury could
attribute less than 50 grams of crack to each defendant. The
32
At the outset of our analysis, we observe significant
factual differences between Foster and the present case. First,
Count One of the Superseding Indictment filed in this case
establishes a much higher threshold for conviction both in terms
of the number and quantity of drugs alleged. Instead of the
threshold of 50 grams of cocaine alleged in Foster, Daniels is
charged with conspiracy to distribute 1,000 grams or more of
heroin and 500 grams or more of cocaine. Therefore, we must
appraise the amount of evidence on drug quantity attributable to
Daniels and how it corresponds with the relatively high
threshold alleged for each separate drug.
We find that there is overwhelming and uncontroverted
evidence that over 500 grams of cocaine was attributable to
Daniels. Evidence was submitted regarding the search of
Apartment 106 of 1305 Kelston Place, a residence which Daniels
had access to and control over. Several police officers and
forensic chemists testified in detail about the various items
obtained from the search, including the seizure of more than 500
grams of cocaine. 8 The record therefore contains solid and
essentially unassailable evidence, both physical and
court noted that “[t]he evidence at trial showed that, even by
conservative estimates, most [Defendants] were responsible for
many thousands or tens of thousands of grams of crack.” Id. at
254-55 (emphasis in original).
8
The Presentence Investigation Report (“PSR”) determined
that a total of 1,097 grams of cocaine was seized from the
apartment at 1305 Kelston Place. (J.A. 1882.)
33
testimonial, indicating that more than the threshold quantity of
cocaine alleged in the conspiracy charge was directly
attributable to Daniels.
However, we do not find equally compelling evidence that
the quantity of heroin attributable to Daniels surpassed the
1,000 gram threshold alleged in the conspiracy charge. The most
convincing evidence confirming Daniels’ responsibility for
heroin was in the form of the over 200 grams of heroin seized
from the 1305 Kelston Place residence 9 and the 8 grams of heroin
seized from Daniels’ person when he was arrested in the parking
lot of the Bi-Lo grocery store. The remaining trial evidence
concerning Daniels’ ties to heroin was in the form of testimony
from co-conspirators, most of whom did not testify as to
specific quantities of heroin expressed in grams. In addition,
the credibility of these co-conspirators was heavily contested
on cross-examination, meaning that a jury could ascribe
correspondingly less weight to their statements. For instance,
in order to reach the one kilogram threshold for heroin, the
jury would have to rely heavily upon the testimony of co-
conspirator Charles McCombs, when he stated that he traveled
with Daniels to New York on three occasions in the beginning of
2005 to purchase what he estimated to be 300 grams of heroin at
9
The PSR determined that a total of 245.5 grams of heroin
was seized from the apartment at 1305 Kelston Place. (J.A.
1882)).
34
a time. (J.A. at 1394-95, 1400-05.) However, not only was this
testimony uncorroborated, but McCombs admitted on recross-
examination that he never weighed the heroin or witnessed it
being weighed. (J.A. 1499-1501.)
Considered together, the evidence revealing Daniels’
responsibility for 1,000 grams of heroin is neither overwhelming
nor uncontroverted. Although there is solid evidence concerning
the combined seizure of up to 250 grams of heroin from Daniels’
person and from the apartment at 1305 Kelston Place, much of the
remaining testimonial evidence pertaining to heroin was
anecdotal, uncorroborated and contested on cross-examination.
Even if the jury had determined that one kilogram of heroin was
involved in the conspiracy (the quantity assessed in the PSR),
it is possible that a properly instructed jury could have
rationally attributed a lesser quantity to Daniels. See United
States v. David, 83 F.3d 638, 648 (4th Cir. 1996) (noticing
plain error for failure to instruct on an element of a crime
upon a determination that “a jury could conceivably have
concluded . . . that [the omitted element] was not ultimately
proven”). Therefore we conclude that a jury could conceivably
have found that less than 1,000 grams of heroin was attributable
to Daniels. The disparity between the evidence of quantity
attributable to Daniels and the amount charged is far less
dramatic than was manifested in Foster. A contrary ruling would
35
not comport with a common sense interpretation of the
“overwhelming and essentially uncontroverted evidence” standard
that serves to protect the fairness, integrity and reputation of
the judicial process.
Having determined it appropriate to exercise our discretion
under Rule 52(b), we are again directed by Collins in
prescribing the appropriate remedy. We vacate and remand to the
district court while withholding judgment on the conspiracy
count for thirty days. 10 The Government may elect to apply the
relevant default penalty provision in § 841(b)(1)(B) (providing
for a sentence of ten years to life in prison), or the
Government may request that the conspiracy conviction be
reversed and institute a new trial. See Collins, 415 F.3d at
315.
AFFIRMED IN PART,
VACATED IN PART,
AND JUDGMENT WITHHELD IN PART
10
Although Daniels’ sentence was improper, his conviction
under Count One for conspiracy to distribute heroin and cocaine
is legitimate since it does not depend upon a determination as
to the amount or type of narcotics at issue. See Collins, 415
F.3d at 314.
36
DUNCAN, Circuit Judge, dissenting:
I respectfully dissent from part IV of my colleague’s
opinion and the resulting decision to remand. Collins holds
that a jury must determine “the quantity of narcotics
attributable to each coconspirator by relying on the principles
set forth in Pinkerton.” United States v. Collins, 415 F.3d
304, 312. Therefore, by its plain terms, our precedent requires
nothing more than a jury determination that a given quantity of
drugs was “reasonably foreseeable” to a defendant. To decide
otherwise would be to turn our notion of conspiracy, which
entails coconspirator liability for reasonably foreseeable acts,
on its head. See Pinkerton v. United States, 328 U.S. 640, 647-
48 (1946) (noting the “principle” that “the overt act of one
partner in crime is attributable to all” where it is “within the
scope of the unlawful project”). The notion of attribution in
Collins does not require greater proof of individual
responsibility for a substantive crime, including an amount of
drugs distributed, than does our jurisprudence following
Pinkerton. The drugs “attributable” to a defendant are those
reasonably foreseeable to him based upon his participation in
the conspiracy. See Collins, 415 F.3d at 312 (finding it is the
“amount of narcotics attributable to [an individual defendant]”
and not “the amount of narcotics distributed by the entire
conspiracy” that is determinant under § 841(b)). Thus, any
37
narcotics that were distributed by the conspiracy but not
reasonably foreseeable to an individual defendant--and therefore
not, under Pinkerton, properly attributable to him--may not be
considered in determining his sentence.
In this case, pursuant to the special verdict form, the
jury found that the drug amounts in question were “reasonably
foreseeable to Jermal Daniels.” J.A. at 1809. This is all that
Collins requires. There is no basis in the record to assume
that the jury’s determination was inadequate. I therefore
respectfully dissent from the portion of the court’s opinion
finding a Collins violation. Because I find no violation, I do
not join in the decision to reverse the judgment of the district
court and remand on this question.
38