United States v. Davis

FILED: April 3, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4389
(CR-02-548)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY FRANK DAVIS,
Defendant - Appellant.
No. 03-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEMETRIUS MONQUITE GREEN, a/k/a Meech,
Defendant - Appellant.
No. 04-4095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO OWENS, a/k/a Tonio,
Defendant - Appellant.
No. 04-4137
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TANESHA BANNISTER,
Defendant - Appellant.
No. 04-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD EDWARD BYRD,
Defendant - Appellant.
No. 04-4176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
2
versus
FURMAN BENJAMIN QUATTLEBAUM,
Defendant - Appellant.
No. 04-4185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY WILLIAM COOPER, JR., a/k/a Buck,
Defendant - Appellant.
No. 04-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER TOBY HAYES,
Defendant - Appellant.
3
No. 04-4206
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARREN WHITE, a/k/a Doctor, a/k/a Coolie,
Defendant - Appellant.
No. 04-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARQUEL DUSHUAN RILEY, a/k/a Mark Riley,
Defendant - Appellant.
No. 04-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
4
versus
ANTHONY KEITH WILSON,
Defendant - Appellant.
No. 04-4264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID KEITH MILES,
Defendant - Appellant.
No. 04-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH TROY MCCONNELL,
Defendant - Appellant.
5
No. 04-4404
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARMAND A. HAMMOND,
Defendant - Appellant.
No. 04-4440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM EDWARDS,
Defendant - Appellant.
6
O R D E R
The court amends its opinion filed March 17, 2008, as follows:
On Page 40, section 4., the fourth sentence, the words "50
kilograms of cocaine" should be corrected to read "5 kilograms of
cocaine."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
7
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4389
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY FRANK DAVIS,
Defendant - Appellant.
No. 03-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEMETRIUS MONQUITE GREEN, a/k/a Meech,
Defendant - Appellant.
No. 04-4095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO OWENS, a/k/a Tonio,
Defendant - Appellant.
No. 04-4137
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TANESHA BANNISTER,
Defendant - Appellant.
No. 04-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD EDWARD BYRD,
Defendant - Appellant.
No. 04-4176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
2
versus
FURMAN BENJAMIN QUATTLEBAUM,
Defendant - Appellant.
No. 04-4185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY WILLIAM COOPER, JR., a/k/a Buck,
Defendant - Appellant.
No. 04-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER TOBY HAYES,
Defendant - Appellant.
3
No. 04-4206
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARREN WHITE, a/k/a Doctor, a/k/a Coolie,
Defendant - Appellant.
No. 04-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARQUEL DUSHUAN RILEY, a/k/a Mark Riley,
Defendant - Appellant.
No. 04-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
4
versus
ANTHONY KEITH WILSON,
Defendant - Appellant.
No. 04-4264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID KEITH MILES,
Defendant - Appellant.
No. 04-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH TROY MCCONNELL,
Defendant - Appellant.
5
No. 04-4404
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARMAND A. HAMMOND,
Defendant - Appellant.
No. 04-4440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM EDWARDS,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-02-548)
Argued: December 6, 2007 Decided: March 17, 2008
Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.
6
Affirmed in part, vacated and remanded in part, and judgment
withheld in part by unpublished opinion. Judge Duncan wrote the
opinion, in which Chief Judge Williams and Judge Bailey joined.
Judge Bailey wrote a separate concurring opinion.
ARGUED: Marcia Gail Shein, Decatur, Georgia; James Harold Babb,
HOWLE & BABB, L.L.P., Sumter, South Carolina; Mary Jude Darrow,
Raleigh, North Carolina; James B. Craven, III, Durham, North
Carolina, for Appellants. Mark C. Moore, Assistant United States
Attorney, Jane Barrett Taylor, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Michael A. Grace, GRACE, HOLTON, TISDALE &
CLIFTON, Winston-Salem, North Carolina, for Appellant Johnny Frank
Davis; Matthew Anthony Victor, VICTOR, VICTOR & HELGOE, L.L.P.,
Charleston, West Virginia, for Appellant Donald Edward Byrd;
Jeffrey M. Brandt, ROBINSON & BRANDT, Cincinnati, Ohio, for
Appellant Antonio Owens; Marc Seguinot, McLean, Virginia, for
Appellant Christopher Toby Hayes; Cecelia Robinson, Columbia, South
Carolina, for Appellant Johnny W. Cooper, Jr.; Anthony O’Neil Dore,
Beaufort, South Carolina, for Appellant Demetrius Monquite Green;
John McIver Ervin, III, Darlington, South Carolina, for Appellant
Furman Benjamin Quattlebaum; James Edward Holler, HOLLER, DENNIS,
CORBETT, GARNER & ORMOND, Columbia, South Carolina, for Appellant
Darren White; Michael W. Chesser, Aiken, South Carolina, for
Appellant Anthony Keith Wilson; Jeffrey Falkner Wilkes, CRAVEN &
WILKES, Greenville, South Carolina, for Appellant Tanesha
Bannister; C. Rauch Wise, Greenwood, South Carolina, for Appellant
David Keith Miles; Lourie A. Salley, III, Lexington, South
Carolina, for Appellant Marquel Dushuan Riley; Leland Bland
Greeley, Rock Hill, South Carolina, for Appellant James Hampton
Williams, II. Reginald I. Lloyd, United States Attorney, Robert
Daley, Jr., Assistant United States Attorney, J. D. Rowell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
7
DUNCAN, Circuit Judge:
Johnny Frank Davis (“Davis”) and fourteen others
(collectively,“Appellants”) appeal their convictions and sentences
for conspiracy to possess with intent to distribute 5 kilograms or
more of (powder) cocaine and 50 grams or more of cocaine base
(commonly known as “crack cocaine”), in violation of 21 U.S.C.
§§ 841(a), 846. Appellants challenge their convictions, arguing
that there was insufficient evidence to support the jury’s
verdicts, and that the verdicts were tainted by the complexity that
resulted from the district court’s denial of certain Appellants’
motions for severance and by improper prosecutorial vouching.
Appellants also seek resentencing in light of United States v.
Booker, 543 U.S. 220 (2005), and, in addition, resentencing because
the trial court committed error by declining to instruct the jury
to find the amounts of drugs individually attributable to each
defendant, in violation of United States v. Collins, 415 F.3d 304(4th Cir. 2005). We find no infirmity in Appellants’ convictions,
but vacate the sentences and remand for resentencing in light of
Booker for all Appellants except Johnny Frank Davis and William
Edwards. For William Edwards, we find reversible Collins error and
remand.
8
I.
This appeal centers on a large-scale, ten-year conspiracy to
distribute cocaine in the southeastern United States. The regional
kingpin, John Williams, procured large quantities of cocaine from
international suppliers. He then utilized a number of so-called
“lieutenants” to coordinate further distribution, often through the
use of middlemen or mules, to local drug dealers in Georgia and
South Carolina. Such lieutenants included, at different times,
Appellants David Miles and, as part of a business partnership with
another defendant, Demetrius Green. The hierarchy was loosely
organized, however; conspiracy members would often buy and sell
cocaine amongst themselves depending on their vacillating supplies
and demands.
Investigators from the Richland County, South Carolina
Sheriff’s Office first infiltrated the conspiracy when their
undercover agent (“UCA”) met conspirator Jonathan Stroman for the
purpose of obtaining significant quantities of cocaine in the
summer of 2001. Stroman arranged for the UCA to meet John
Williams’s nephew, Corey Williams, who was serving as one of John
Williams’s downstream distributors at the time. The UCA effected
a series of controlled purchases, each of one-half to one kilogram
of cocaine, from Corey Williams. The investigators then sought and
obtained orders authorizing the interception of communications
9
occurring over Corey Williams’s cell phones (the “wiretap”). The
wiretap ultimately recorded drug-related conversations with each
Appellant, save Johnny Frank Davis, Johnny Cooper, and Anthony
Wilson.
After several months of monitoring, the investigators learned
from wiretap intercepts that Corey Williams was planning to meet
his brother1 in Atlanta to procure 3 kilograms of cocaine. Corey
Williams delivered $60,000 to his brother and arranged for future
delivery of the cocaine. On Corey Williams’s way back to South
Carolina, police apprehended him and transported him to an FBI
office to discuss his possible cooperation with authorities in the
ongoing investigation of the conspiracy. Corey Williams agreed,
and proceeded to record via wire a number of in-person
conversations with certain coconspirators, including Appellants
William Edwards, Johnny Frank Davis, Johnny Cooper, and Christopher
Hayes. As the evidence of the conspiracy accumulated, the
investigators began making arrests. Ultimately, forty-three
defendants were charged in the Third Superseding Indictment (the
“Indictment”) with conspiracy to possess with intent to distribute
5 kilograms or more of (powder) cocaine and 50 grams or more of
cocaine base (commonly known as “crack cocaine”), in violation of
1
This brother, James Williams, was tried and convicted along
with Appellants, but his appeal was deconsolidated from the others
and heard separately by this court. See United States v. Williams,
227 Fed. Appx. 307 (4th Cir. 2007).
10
21 U.S.C. §§ 841(a), 846, eighteen of which, including all fifteen
Appellants, went to trial.
Shortly before trial, Corey Williams, who was slated to
testify against many of his coconspirators, was murdered. The
government was able to proceed, however, on the strength of the
wiretap and wire recordings, and the testimony of other cooperating
witnesses. In particular, the government introduced extensive
testimony at trial from kingpin John Williams himself. John
Williams testified that he began dealing drugs in 1993 in Athens,
Georgia, traveling to New York City periodically to replenish his
supply. He later enlisted the assistance of his nephew, Corey
Williams, among others, to distribute the cocaine in Athens and
Columbia, South Carolina. The operation soon outgrew its initial
suppliers, and John Williams began procuring shipments of cocaine
via small planes from California and Mexico. Each shipment
typically weighed between 30 and 100 kilograms.
At first, John Williams personally distributed the cocaine to
a number of dealers, including Christopher Hayes (in amounts up to
8 kilograms per transaction) and Marquel Riley. Eventually, John
Williams grew wary of direct involvement with so many individuals,
and limited his direct sales to his lieutenants, who in turn
distributed the drugs to other middlemen and dealers. Though Corey
Williams acted as a lieutenant early in the conspiracy, John
Williams came to find him unreliable, and began searching for a
11
replacement. Cooperating witness John Dickerson (“Dickerson”), a
mid-level distributor in the organization, testified that he
introduced Appellant David Miles (“Miles”) to John Williams as a
suitable candidate, and that Miles was hired as John Williams’s
lieutenant in 2000. Miles then moved to Athens and managed a stash
house for John Williams and oversaw further distribution to South
Carolina.
John Williams testified that Miles was “the best middleman
[he] ha[d] ever had.” J.A. 3503. Miles supplied multiple
kilograms of cocaine to Appellants Anthony Wilson, Christopher
Hayes, Marquel Riley, and Johnny Cooper, using intermediaries such
as Dickerson and Appellant Tanesha Bannister. Nevertheless, John
Williams grew distrustful of Miles, and ultimately replaced him as
lieutenant with Joe Lark (“Lark”), accompanied often by his drug
business partner, Appellant Demetrius Green (“Green”). John
Williams testified that on at least ten occasions, Green and Lark
picked up between 12 and 17 kilograms of cocaine from him, and
delivered them to South Carolina.
During this time, Corey Williams and other lieutenants emeriti
continued to receive cocaine, albeit indirectly, from John
Williams. Corey Williams in particular supplied Appellants Antonio
Owens, Donald Byrd, Johnny Frank Davis, Armand Hammond, Joseph
McConnell, Marquel Riley, Furman Quattlebaum, and Darren White.
When Corey Williams was short on supply, Darren White would at
12
times secure shipments from another source and distribute them
among the same group.
Appellant William Edwards (“Edwards”), a disbarred attorney,
assisted Corey Williams in establishing sham businesses to process
his drug earnings. From time to time, Edwards would obtain small
quantities of cocaine from Corey Williams for his personal use and
for use in “greasing,” or incentivizing, such business deals for
Corey Williams.
On May 2, 2003, the jury found all fifteen Appellants guilty
of conspiracy under 21 U.S.C. § 846 to possess with intent to
distribute 5 kilograms or more of cocaine, or2 50 grams or more of
cocaine base, in violation of § 841(a) and § 841(b)(1)(A)(ii)(II),
2
Section 841 punishes the possession with intent to distribute
of either cocaine, § 841(b)(1)(A)(ii)(II), or cocaine base,
§ 841(b)(1)(A)(iii). Nevertheless, the Indictment charged the two
drugs in the conjunctive. See J.A. 64 (charging Appellants with
conspiracy to possess with intent to distribute “5 kilograms or
more of cocaine, and 50 grams or more of cocaine base”) (emphasis
added). The jury instructions, on the other hand, followed the
language of the statute, allowing conviction if either drug was
found to be within the scope of the conspiracy in the relevant
amount. See J.A. 970 (“The government is not required to prove
that the conspiracy involved both cocaine and cocaine base . . . .
But the government must prove that the overall scope of the
conspiracy involved at least five kilograms of cocaine or at least
50 grams of cocaine base.”) (emphasis added). Contrary to
Appellants assertion, this seeming discrepancy does not actually
pose a meaningful variance, and certainly does not undermine
Appellants’ convictions. See Turner v. United States, 396 U.S.
398, 420 (1970) (“The general rule is that when a jury returns a
guilty verdict on an indictment charging several acts in the
conjunctive, . . . the verdict stands if the evidence is sufficient
with respect to any one of the acts charged.”).
13
(iii).3 Appellants were individually sentenced during the early
months of 2004 to terms of imprisonment ranging from 120 months to
life in prison. Appellants timely appealed.
II.
A.
Appellants first challenge their conspiracy convictions,
contending that there was insufficient evidence for the jury to
find that Appellants were collectively involved in a single
conspiracy. The convictions must be upheld if, “viewing the
evidence in the light most favorable to the government, any
rational trier of facts could have found the defendant[s] guilty
beyond a reasonable doubt.” United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). “[D]eterminations of credibility ‘are
within the sole province of the jury and are not susceptible to
judicial review.’” United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc) (quoting United States v. Lowe, 65 F.3d 1137,
1142 (4th Cir. 1995)).
To prove each charge of conspiracy to possess cocaine with
intent to distribute, in violation of § 846, the government must
3
Appellant Joseph McConnell was the only Appellant charged and
tried with a substantive violation of § 841(a), for possession with
intent to distribute 500 grams or more of cocaine. The jury
convicted him on that count as well. Appellant Donald Byrd was
also convicted of possessing a firearm despite being a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). Neither party
presented argument on appeal that those convictions are unsound.
14
establish that: “(1) an agreement to possess cocaine with intent to
distribute existed between two or more persons; (2) the defendant
knew of the conspiracy; and (3) the defendant knowingly and
voluntarily became a part of this conspiracy.” Burgos, 94 F.3d at
857. Direct evidence of an agreement obviously suffices to prove
the first element, but circumstantial evidence of such coordination
can also prove the existence of an agreement by inference. Id. at
857-58. The second element--knowledge of the conspiracy--does not
require that the defendant have personal knowledge of each member
or action taken in furtherance of the joint goal. Instead, an
unlawful conspiracy “can have an elusive quality”; “a defendant may
be convicted of conspiracy with little or no knowledge of the
entire breadth of the criminal enterprise.” Id. Finally, the
third element, the joining of the conspiracy, can be proved
whenever the evidence at least “establish[es] a slight connection
between the defendant and the conspiracy.” Id. at 861 (internal
quotations omitted). In challenging the sufficiency of the
evidence to support the conspiracy convictions here, then,
Appellants “face[] a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007).
In the face of mountainous and damning evidence provided by
the numerous cooperating witnesses at trial, many of whom were
high-ranking members of the conspiracy, Appellants predicate their
sufficiency-of-the-evidence challenge on their characterization of
15
their trial as “a classic example of the concept [of federal
conspiracies] grown out of control.” Appellants’ Br. at 45.
Appellants contend that, at most, the evidence tended to show the
existence of multiple conspiracies, and the government’s attempt to
prove otherwise required the “‘piling [of] inference upon
inference.’” Id. at 51 (quoting Direct Sales Co. v. United States,
319 U.S. 703, 711 (1943)). In essence, Appellants request that we
go beyond the usual principles governing sufficiency-of-the-
evidence review, as detailed above, and impose a heightened
standard of review to ensure that the convictions are sound.
This court, sitting en banc, rejected precisely this challenge
in Burgos. Drug-conspiracy appellants had argued that our decision
in United States v. Giunta, 925 F.2d 758 (4th Cir. 1991), required
a “heightened degree of review regarding sufficiency challenges to
conspiracy convictions.” Burgos, 94 F.3d at 859. Finding such
elevated scrutiny “not consistent with our conspiracy
jurisprudence,” this court overruled Giunta and reaffirmed the
principle that the jury is entitled to the same respect, and its
verdict the same deference, regardless of whether it finds guilt
for conspiracy or for a substantive offense. Burgos, 94 F.3d at
860.
Moving then to our limited review of the convictions here, we
find ample evidence to support the jury’s verdicts. Far from
requiring the “piling of inference upon inference,” the facts
16
adduced at trial show a singular cohesiveness to the instant
conspiracy. With the extensive live testimony of kingpin John
Williams, distributor John Dickerson, and others, and the
intercepted wiretap and consensual wire recordings of the dealings
of distributor Corey Williams, the government was able to show
multiple connections both among Appellants and between Appellants
and John Williams’s sophisticated drug-distribution organization.
John Williams testified to engaging personally in a number of large
cocaine transactions with Appellants David Miles and Demetrius
Green. Further, Dickerson testified to Bannister’s involvement
with Miles as an intermediary, and to the buying habits of
Appellants Anthony Wilson, Johnny Cooper and Christopher Hayes.
Finally, the recordings of Corey Williams provided direct evidence
of the purchasing proclivities of Appellants Antonio Owens, Donald
Byrd, Furman Quattlebaum, Armand Hammond, Marquel Riley, Joseph
McConnell, Darren White, Johnny Frank Davis, and William Edwards.
Thus, the evidence before the jury showed that each Appellant was
linked to the conspiracy, not by tenuous association with other
minor conspirators, but by direct transactions with one or more of
three high-ranking members of John Williams’s drug business. Given
the inappropriateness of second-guessing the jury’s apparent
crediting of some or all of this testimony, we cannot say that the
jury acted irrationally in returning convictions for Appellants.
17
B.
Four Appellants seek to have their convictions overturned on
the theory that the district court’s denial of their motions for
severance under Federal Rule of Criminal Procedure 14 unfairly
prejudiced their defense.4 We review the district court’s denial
of such motions for abuse of discretion. United States v. Reavis,
48 F.3d 763, 767 (4th Cir. 1995).
It has long been the rule that, “[b]arring special
circumstances, individuals indicted together should be tried
together.” United States v. Brugman, 655 F.2d 540, 542 (4th Cir.
1981). The mere fact that the charge to be tried is one of
conspiracy provides no exception to this general precept. See
United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999). On
the contrary, the joint-trial “presumption is especially strong in
conspiracy cases.” United States v. Harris, 498 F.3d 278, 291 (4th
Cir. 2007). The existence of “special circumstances” is rare,
indeed; “a district court should grant a severance under Rule 14
only if there is a serious risk that a joint trial would compromise
a specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence.”
4
Rule 14(a) provides: “If the joinder of offenses or
defendants in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the court
may order separate trials of counts, sever the defendants’ trials,
or provide any other relief that justice requires.” Fed. R. Crim.
P. 14(a).
18
Zafiro v. United States, 506 U.S. 534, 539 (1993); see also Harris,
498 F.3d at 291. At bottom, we reverse the denial of a severance
motion only when such denial would “deprive[] the defendants of a
fair trial and result[] in a miscarriage of justice.” Harris, 498
F.3d at 291 (internal quotations omitted).
Appellants Green, Miles, Johnny Frank Davis and Anthony Wilson
argue in Appellants’ collective brief that the strength of evidence
against the high-ranking members of the conspiracy might have
impermissibly tainted the jury’s determinations of guilt for “[t]he
more peripheral defendants.” Appellants’ Br. at 56. This argument
must fail. The district court was careful to instruct the jury
that “[e]ach count, as to each defendant, and the evidence
pertaining to that count and defendant should be considered
separately and individually. The fact that you may find one of the
defendants guilty or not guilty should not control your verdict as
to the other defendants.” J.A. 959. We presume that the jury
complied with this instruction. See United States v. Alerre, 430
F.3d 681, 692 (4th Cir. 2005). We therefore find nothing in the
record to suggest that the jury was prevented “from making a
reliable judgment about guilt or innocence” as to each Appellant.
Zafiro, 506 U.S. at 539.5
5
We also note that Appellants Green and Miles, both of whom
appeal the denial of their motions for severance, can hardly claim
to be “peripheral defendants,” as both, on multiple occasions,
received large amounts of cocaine for distribution from John
Williams, either directly or as part of a business partnership.
19
Appellant Anthony Wilson raises the additional argument that
the calling of his brother, Perry Wilson, by the government in its
case-in-chief unduly prejudiced the jury against him. Perry Wilson
was slated to testify only as to David Miles’s involvement in the
conspiracy, but on cross-examination by Miles’s trial counsel, was
asked several questions regarding Anthony Wilson’s prior drug
dealing. Anthony Wilson’s counsel objected, seeking a mistrial and
severance. The district court denied the motion, striking the
portions of Perry Wilson’s testimony pertaining to Anthony Wilson.
The district court immediately admonished the jury that such
testimony “may not be considered by you for any purpose during your
deliberations in this case.” J.A. 638.
“‘[C]ourts generally have discerned no reversible error where
the trial court has acted promptly in sustaining an objection and
advising the jury to disregard the testimony.’” United States v.
Hayden, 85 F.3d 153, 158 (4th Cir. 1996) (quoting United States v.
Dorsey, 45 F.3d 809, 816 (4th Cir. 1995)). As before, we see no
reason to assume that the jury allowed Perry Wilson’s testimony to
color its verdict against Anthony Wilson. See Alerre, 430 F.3d at
692. Finding no “special circumstances” that would recommend
deviation from the presumption of trying Appellants jointly, we
20
cannot say that the district court abused its discretion here in
denying the motions for severance.6
C.
Appellants finally seek to have their convictions overturned
because the prosecution allegedly improperly vouched for the
veracity of cooperating witnesses. The issue of improper vouching
is a question of law that we review de novo. United States v.
Collins, 415 F.3d 304, 307 (4th Cir. 2005).
Appellants assert that, on direct examination of certain
cooperating witnesses, the prosecutor mentioned that those
witnesses had entered into plea agreements requiring that the
witnesses tell the truth. Such plea agreements were also mentioned
in two instances during the prosecution’s closing rebuttal
argument. First, the prosecutor explained to the jury the
consequences John Williams would face if he were found to have
provided less than full cooperation: “Mr. Williams understands
better than anybody else what it means if he fails to cooperate, if
he discontinues that cooperation, or if he gives the government any
reason to think that he’s being less than forthcoming.” J.A. 894-
6
Appellant Armand Hammond also joins in the appeal from the
denial of the motions to sever, echoing the same arguments of the
other four Appellants, but does not point to any record citation of
his having made such a motion before the district court. Even
assuming such a motion was made, the district court would not have
abused its discretion by denying it for the reasons discussed
above.
21
95. Later, the prosecutor reminded the jury of the testimony of
Perry Wilson, then opined:
Perry Wilson didn’t want to talk about his brother
[Anthony Wilson], and he will be dealt with at a later
time. It’s not over. I don’t know if I can blame him
for not wanting to talk about his brother, but that’s not
my call. He will be dealt with at a later time.
J.A. 904.
As a general matter, “[t]estimony concerning the existence of
a plea or immunity agreement concerning a government witness can
cut both ways.” United States v. Henderson, 717 F.2d 135, 137 (4th
Cir. 1983). On the one hand, the defense may benefit from the
inference that a cooperating witness will tell the government what
it wants to hear in exchange for a reduced sentence or other
concessions, reducing his credibility. On the other hand, the
government may benefit from the inference that it has the power to
force the cooperating witness to tell the truth, lest those
concessions be retracted, enhancing the credibility of the witness.
As such, the decision by a district court to allow discussion on
direct examination of the existence of a plea agreement and the
cooperating witness’s attendant promise of truthfulness does not,
without more, constitute reversible error. See id. at 138.
Impermissible vouching arises only when the prosecutor cultivates
the inference in his favor by “‘explicitly or implicitly
indicat[ing] that [he] can monitor and accurately verify the
truthfulness of the witness’ testimony.’” Collins, 415 F.3d at 308
22
(quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.
1990)). Such vouching is particularly pernicious “during an
attorney’s soliloquy to the jury” because the prosecutor is
untethered from the question-and-answer format, and therefore
“potentially prejudicial statements made during closing arguments
require closer scrutiny than the eliciting of information about the
plea agreement during the prosecutor's case in chief.” Collins,
415 F.3d at 308.
In Collins, the prosecutor explained in her closing rebuttal
argument that witnesses subject to plea agreements were under an
obligation to tell the truth. She continued, “The government is
always seeking to determine whether they are telling the truth.”
Id. at 307. The Collins court, however, declined to determine
whether such statement constituted improper vouching, instead
finding that even if the statement were considered prosecutorial
misconduct, it was harmless, as it did not “‘so infect[] the trial
with unfairness as to make the resulting conviction a denial of due
process.’” Id. at 309 (quoting United States v. Scheetz, 293 F.3d
175, 185 (4th Cir. 2002)) (omission in Collins). This prejudice
inquiry turns on analysis of four factors, cited in Collins: “(1)
the degree to which the comments could have misled the jury; (2)
whether the comments were isolated or extensive; (3) the strength
of proof of guilt absent the inappropriate comments; and (4)
whether the comments were deliberately made to divert the jury's
23
attention.” United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.
1997).
We follow the example set forth by the Collins court and
assume, without deciding, that the statements made by the
prosecutor here constituted improper vouching. A careful
consideration of the same four factors reveals that any such
vouching did not unfairly prejudice Appellants.7 First, Appellants
lodged a contemporaneous objection to the statements offered by the
prosecutor in closing arguments. The district court issued an
immediate curative instruction, as in Collins, clarifying that
the question of what will happen in the future to a
cooperating witness is a matter that is not in evidence
in this case. The only thing that is in evidence are the
factors that you heard about their plea agreements [and]
their opportunity to possibly earn a sentencing
reduction.
J.A. 904-05. Because this curative instruction was given in close
proximity to the allegedly improper statements, and because the
district court so clearly delineated the scope of proper
consideration of the specifics of plea agreements, the first factor
weighs strongly in favor of the government. See Collins, 415 F.3d
at 309.
The other factors also weigh in favor of the government. The
statements were fleeting, occupying only a brief portion of the
7
Appellants do not discuss these factors, nor do they make any
attempt to demonstrate why any improper vouching during the trial
should not be considered harmless error.
24
prosecutor’s one-hour closing rebuttal argument. Next, there was
overwhelming evidence of the existence of the conspiracy, and the
prosecutor’s statements did little to undercut the connection of
any given Appellant to the broader conspiracy.8 Finally,
Appellants have not suggested, nor is there any evidence in the
record to suggest, that the statements were deliberately made to
divert the jury’s attention from the important decisions before
them. On balance, we conclude, as did the Collins court, that any
impermissible vouching that might have occurred was harmless.
8
We note that the jury was twice cautioned against using
witness Perry Wilson’s statements as evidence against Anthony
Wilson, once immediately following Perry Wilson’s testimony and
again in connection with the allegedly improper vouching.
Therefore, we do not find that the stricken statements of Perry
Wilson regarding Anthony Wilson’s prior drug dealing substantially
undermined the other evidence of Anthony Wilson’s guilt of the
conspiracy charge.
25
Having considered and rejected all of Appellants’ arguments
suggesting that their convictions are unsound,9 we now consider
9
Appellants detail a number of other arguments attacking their
convictions. For example, Appellants argue that the admission of
the statements of the late Corey Williams, captured via wiretap
(before his cooperating with authorities) and via wire (with Corey
Williams’s consent), violated their right under the Sixth Amendment
to “confront[] . . . the witnesses against [them].” U.S. Const.
amend. VI. We review de novo the legal question of whether the
admission of certain evidence violates the Confrontation Clause.
United States v. Halteh, 224 Fed. Appx. 210, 216 (4th Cir. 2007).
Only admission of “testimonial” statements implicates the
Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 68
(2004). Statements in furtherance of a conspiracy are not
testimonial. See id. at 56; United States v. Sullivan, 455 F.3d
248, 258 (4th Cir. 2006). Prior to his cooperation with
authorities, Corey Williams was a coconspirator to Appellants. Any
statements captured by the wiretap, therefore, are non-testimonial
and their admission does not violate the Confrontation Clause.
Furthermore, the district court carefully circumscribed the
jury’s consideration of those statements of Corey Williams
captured, with his consent, via wire. The court cautioned the jury
that the statements “are not offered to prove the truth of the
matter. In other words, you may not take as true what Cor[e]y
Williams is saying.” S.J.A. 746. Instead, Corey Williams’s half
of the conversation was admitted to provide context for the
captured statements made by others. A statement is not
“testimonial” unless “made for the purpose of establishing or
proving some fact.” Crawford, 541 U.S. at 51 (internal quotations
omitted). Because Corey Williams’s statements were not admitted
for their truth, they were not testimonial. The cooperating Corey
Williams was not, then, a “witness[] against [Appellants],” U.S.
Const. amend. VI, and the admission of his statements therefore
poses no Confrontation Clause problem.
Other challenges to the convictions were made by individual
Appellants in their supplemental briefs. For example, Appellant
William Edwards contends that his conviction must be overturned in
light of the Speedy Trial Act (the “STA”), 18 U.S.C. § 3161 et seq.
The STA requires that a defendant’s trial begin within seventy days
of the filing date of the indictment. Id. § 3161(c)(1). The STA
allows for tolling of that period under certain circumstances,
however. For example, delays attributable to the joinder of a
codefendant, § 3161(h)(7), or to the court’s granting of any
reasonable continuance, § 3161(h)(8), are excluded from the
seventy-day timespan. Though William Edwards’s trial did not begin
26
Appellants’ arguments made with respect to their sentences.
III.
A.
Appellants first challenge their sentences as violative of
United States v. Booker, 543 U.S. 220 (2005). The district court
sentenced each Appellant under the then-mandatory United States
Sentencing Guidelines. The government concedes that this
constitutes statutory error under Booker, regardless of whether the
district court also violated the Sixth Amendment by “enhancing
[the] sentences based on facts found by the court alone.” United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005); see also id.
at 547 (“The Booker Court concluded that [its] remedial scheme
should apply not only to those defendants . . . whose sentences had
been imposed in violation of the Sixth Amendment, but also to those
defendants . . . who had been sentenced under the mandatory regime
without suffering a constitutional violation.”).
until several months after he was first indicted, much of that time
coincided with the serial arrests of the Appellants throughout
2002, and with the continuance granted after the murder of Corey
Williams. In light of these exclusions, the relevant time period
totals fewer than seventy days. William Edwards’s conviction
therefore did not violate the STA.
We have carefully reviewed all the other arguments made by
Appellants jointly and individually attacking their convictions,
and find them to be either without merit or to describe errors that
we find harmless.
27
The government also concedes that Appellants preserved the
error in the district court. See United States v. Rodriguez, 433
F.3d 411, 416 (4th Cir. 2006) (noting that a claim of statutory
Booker error is properly preserved when the defendant “plainly
notified the court of his position that he was being sentenced
illegally” and “identified the line of Supreme Court precedent upon
which he now relies”). Therefore, we review the error for
harmlessness. Id.The government seeks to prove harmlessness with respect to
only one Appellant--Johnny Frank Davis. It concedes, wisely, that
the Booker error is reversible for the other fourteen Appellants.
A defendant properly subject to the penalties of 21 U.S.C. §
841(b)(1)(A) faces a mandatory minimum sentence of life
imprisonment if commission of the instant offense occurs “after two
or more prior convictions for a felony drug offense have become
final.” 21 U.S.C. § 841(b)(1)(A). “Booker did nothing to alter
the rule that judges cannot depart below a statutorily provided
minimum sentence.” United States v. Robinson, 404 F.3d 850, 862
(4th Cir. 2005). This is so because, regardless of the role of
discretion in affixing guidelines ranges, “a district court has no
discretion to impose a sentence outside of the statutory range
established by Congress for the offense of conviction.” Id.Johnny Frank Davis had three “prior convictions for a felony drug
offense,” 21 U.S.C. § 841(b)(1)(A): one for possession of cocaine,
28
one for trafficking in cocaine, and one for distribution of
cocaine. Thus, the mandatory or advisory nature of the Guidelines
could have no impact on Johnny Frank Davis’s sentence, which could
not be set lower than the statutory minimum of life imprisonment.
We therefore find that remand for resentencing on the basis of
Booker for Johnny Frank Davis would be futile.
We must vacate the sentences of the other fourteen Appellants,
however, and remand to the district court for resentencing. We
have no reason to doubt that the court is not, by now, well-versed
in post-Booker sentencing procedures. See Hughes, 401 F.3d at 546-
47 (laying out such procedures). We also direct the court to
consult United States v. Pauley, 511 F.3d 468, (4th Cir. 2007), to
assist in applying the Supreme Court’s most recent pronouncements
in the area of sentencing law. See Gall v. United States, 128 S.
Ct. 586 (2007); Kimbrough v. United States, 128 S. Ct. 558 (2007).
B.
Finally, Appellants challenge their sentences under United
States v. Collins, 415 F.3d 304 (4th Cir. 2005). A brief
discussion of the issue this court addressed in Collins would
provide useful background for our current analysis.
1.
The Collins court considered the extent to which Apprendi v.
New Jersey, 530 U.S. 466 (2000), altered this circuit’s earlier
drug conspiracy precedents, most notably United States v. Irvin, 2
29
F.3d 72 (4th Cir. 1993). The Irvin court had been tasked with
choosing between two competing “plausible interpretation[s]” of the
interplay between § 846, the conspiracy statute, and § 841(b), a
statute that imposes penalties for substantive violations of the
narcotics distribution statute § 841(a). Collins, 415 F.3d at
312. Section 841(b) details a graduated penalty scheme, whereby a
defendant found guilty of distribution of a certain amount of
narcotics is subjected to one of three different sets of statutory
minimum and maximum sentences based on that drug amount. See §
841(b)(1)(A), (B), (C). Insofar as § 846 subjects those who
conspire to commit a § 841(a) offense “to the same penalties as
those prescribed for [a substantive § 841(a)] offense,” the
question posed to the Irvin court was whether the district court
should “aggregate the[] amounts . . . involved in each object of
the offense of the conspiracy, . . . and then assign to each
coconspirator the mandatory minimum sentence of § 841(b)
corresponding to the aggregated quantity of narcotics,” or should
instead “individualize[]” each coconspirator’s sentence “to reflect
[his] relative culpability in the conspiracy.” Irvin, 2 F.3d at
76. The Irvin court selected the latter interpretation as “the
most reasonable,” holding that “the statutes require a district
court to determine the accountability of each coconspirator for
each object offense and the quantity of narcotics involved in each
object offense using the principles of Pinkerton [v. United States,
30
328 U.S. 640 (1946)].” Id. As a result, in the post-Irvin era,
the proper quantity of narcotics was determined by the district
court itself, then matched with the corresponding range in § 841(b)
to determine the appropriate maximum and minimum penalty.
In 2000, however, the Supreme Court issued its landmark
decision in Apprendi, announcing that “[o]ther than the fact of
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
This court soon thereafter convened en banc to consider the effect
of Apprendi on the levying of § 841(b) penalties for substantive
violations (as opposed to conspiratorial violations via § 846) of
§ 841(a). See United States v. Promise, 255 F.3d 150, 156 (4th
Cir. 2001) (en banc). We concluded that “the prescribed statutory
maximum” benchmarked in Apprendi is that found in the third and
most lenient subsection of § 841(b)(1), namely § 841(b)(1)(C),
applicable to cases involving drug amounts less than the thresholds
described in the other two subsections, § 841(b)(1)(A) and (B).
Promise, 255 F.3d at 156. “Apprendi dictates that in order to
authorize the imposition of a sentence exceeding the maximum
allowable without a jury finding of a specific threshold drug
quantity, the specific threshold drug quantity must be treated as
an element of an aggravated drug trafficking offense, i.e., charged
31
in the indictment and proved to the jury beyond a reasonable
doubt.” Id.The Promise court did not, however, have occasion to address
whether Apprendi’s “prescribed statutory maximum” for a violation
of § 841(a) via the conspiracy statute of § 846 was that found in
the subsection of § 841(b)(1) corresponding to the amount of drugs
contemplated by the conspiracy as a whole or in the subsection
corresponding to the amount of drugs attributable to each
individual defendant. It is this lacuna that was filled by the
Collins court.
The Collins court harmonized Irvin and Apprendi by
substantially reaffirming the holding of Irvin but reassigning,
from the district court to the jury, the role of determining the
amounts attributable to individual conspirators.
Irvin’s holding that Pinkerton principles should be used
to determine, for sentencing purposes, the amount of
narcotics attributable to any one individual in a
conspiracy, remains good law. Under current precedent,
rather than the district court applying Pinkerton
principles when determining the appropriate sentence
under § 841(b), that same court must instead instruct a
jury to use Pinkerton principles when making the same
determination.
Collins, 415 F.3d at 314; see also United States v. Foster, 507
F.3d 233, 250-51 (4th Cir. 2007) (recognizing that, under Collins,
“in order for the statutory maximums and mandatory minimums of
§ 841(b) to apply in a drug conspiracy case, the jury must
determine that the threshold drug amount was reason[]ably
32
foreseeable to the individual defendant”). To hold otherwise, the
court feared, would “attribute[] to . . . an individual member of
the conspiracy[] the quantity of [drugs] distributed by the entire
conspiracy” in violation of the individual-attribution principle of
Irvin. Collins, 415 F.3d at 314.
Because the district court in Collins had expressly instructed
the jury to concern itself only with the amount of drugs that
“applie[d] to the entire group of conspirators,” the Collins court
found error. Id. at 311. We note that the Collins court found
such error to be merely that of providing improper jury
instructions. See id. at 306 (summarizing Collins’s argument under
Irvin as contending “that the district court gave improper jury
instructions”); id. at 311 (analyzing Collins’s claim under the
heading “Jury Charge Regarding Drug Quantity”); id. at 314(discussing the error as “the district court’s failure to issue
appropriate jury instructions concerning the facts necessary to
determine Collins’ sentence”); see also United States v. Ferguson,
245 Fed. Appx. 233, 246 (4th Cir. 2007) (unpublished) (Niemeyer,
J., dissenting) (explaining that, where the jury does make a
finding under Promise of the amount of drugs involved in the
conspiracy, the failure of the district court to further ask the
jury to determine the individual amount attributable to each
conspirator “is simply an error of instruction”).
33
2.
Having summarized the import of Collins, we can now apply its
holding to Appellants here. Before doing so, however, we must
determine whether Appellants preserved a Collins objection below,
as the answer in turn determines the appropriate standard of review
we must apply to Appellants’ challenge.
The government suggests that “a close review of the record
below indicates that these defendants did not preserve the alleged
error.” Appellee’s Br. at 82. The government’s argument is simply
incorrect. Counsel for Antonio Owens beseeched the district court
at the charge conference:
Based on the conference we had earlier, the concern of
the group appears to be that in this post Apprendi era
that we are confronted with an area of the law that still
is very much in a state of flux, that the United States
Supreme Court has not yet addressed many of the areas
that the Fourth Circuit is just now addressing with
regard to Apprendi concerns.
And for that reason the defense as a whole collectively
is requesting that Your Honor require that the jury find,
factually, weight amounts with regard to powder cocaine
or crack cocaine, and/or crack cocaine, with regard to
each individual accused.
. . .
And we are urging the court to take the conservative
approach and have this jury make factual determinations
with regard to each defendant with regard to whether or
not the government has met its burden of proof beyond a
reasonable doubt of the threshold amounts with regard to
each individual accused.
S.J.A. 780-81. This request appears to zero in precisely on the
holding later issued by Collins. Notwithstanding the prescience of
34
counsel, the government argues that disagreement among Appellants’
attorneys regarding other issues relating to special verdict forms
suggests that Owens’s counsel was speaking here only for her
client. This assertion is belied by the comment of the district
court just moments after Owens’s request that “I assume everyone is
joined in these issues, you don’t have to specifically say so.”
S.J.A. 783.
The district court ultimately denied Appellants’ request for
individualized determinations of drug amounts, and instructed the
jury: “You are not being asked to determine the amount of drugs
each defendant might have been involved with. It is the amount of
drugs involved in the overall conspiracy which is at issue.” J.A.
970. Plainly, these instructions run afoul of the Collins
requirement that the jury “‘determine the accountability of each
coconspirator for . . . the quantity of narcotics involved in each
object offense using the principles of Pinkerton.’” Collins, 415
F.3d at 313-14 (quoting Irvin, 2 F.3d at 76).10
10
The government urges us to gloss over the clear guidance
provided to the jury by the district court, and instead find the
instructions “balanced and fair to both sides” in light of the
length of the trial and complexity of the issues. Appellee’s Br.
at 82. Of course, the government itself is responsible for the
trial and sentencing complexity that resulted from trying eighteen
defendants together. We see no reason to suspect that the jury
failed to follow its express instructions to eschew individualized
attribution. See United States v. Alerre, 430 F.3d 681, 692 (4th
Cir. 2005).
35
We find, therefore, that the district court committed Collins
error in its jury instructions, and that the error was preserved
below.11 These two findings combine to require that we review the
Collins error for harmlessness. Before engaging in the review,
however, a brief discussion of the contours of harmless error in
this context is warranted.
3.
The Supreme Court’s decision in Neder v. United States, 527
U.S. 1 (1999), is instructive. As a general matter, preserved
errors, even those of constitutional moment, are reviewed for
harmlessness under Federal Rule of Criminal Procedure 52(a).12 See
id. at 7-8. Indeed, “most constitutional errors can be harmless.”
Id. at 8 (internal quotations omitted). The narrow exception to
the rule arises in “a limited class of fundamental constitutional
errors that defy analysis by harmless error standards.” Id. at 7(internal quotations omitted). This class of errors, dubbed
“structural errors,” encompasses only a small subset of
constitutional errors, and requires reviewing courts to examine
11
Such error calls into question Appellants’ sentences only,
not their convictions, as suggested by Appellants. See Collins,
415 F.3d at 314 (“Guilt of the substantive offense defined in
§ 841(a) is not dependent upon a determination of the amount or
type of narcotics distributed. Therefore, the error below concerns
not § 841(a), but the penalty provisions in § 841(b). . . .
Collins’ conviction under § 846 is sound.”).
12
Rule 52(a) provides, “Any error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52.
36
“all other constitutional errors . . . by apply[ing] Rule 52(a)’s
harmless-error analysis.” Id. (emphasis added).
The Neder Court proceeded to find that an error arising from
“a jury instruction that omits an element of the offense . . .
differs markedly from the constitutional violations we have found
to defy harmless-error review.” Id. at 8. The Court considered
the complete omission of an element of the offense from jury
instructions to be analogous “to improperly instructing the jury on
an element of the offense, an error which is subject to harmless-
error analysis.” Id. at 10. Thus, notwithstanding the fact that
such error “precludes the jury from making a finding on [an] actual
element of the offense,” id., thereby unconstitutionally
“infring[ing] upon [its] fact-finding role,” id. at 18, a reviewing
court must proceed to determine if the error can be deemed
harmless. Id.
“[T]he test for determining whether a constitutional error is
harmless . . . . is whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.” Id. at 15. To make this determination, a reviewing
court will often be required to “conduct a thorough examination of
the record” to “safeguard[] the jury guarantee.” Id. at 19. If,
after such determination, “the court cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same
absent the error--for example, where the defendant contested the
37
omitted element and raised evidence sufficient to support a
contrary finding--it should not find the error harmless.” Id. The
defendant may not create reasonable doubt by pointing to scant
evidence in the record, however; only such “evidence that could
rationally lead to a contrary finding with respect to the omitted
element” is sufficient to stave off a finding of harmlessness. Id.
This court has understood Neder to require two inquiries,
either of which may result in a finding of harmlessness. “First,
‘where a reviewing court concludes beyond a reasonable doubt that
the omitted element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found to be
harmless.’” United States v. Brown, 202 F.3d 691, 700 (4th Cir.
2000) (quoting Neder, 527 U.S. at 17).13 When a defendant has
13
Under plain-error review, a reviewing court might decline to
recognize an error under similar circumstances. See United States
v. Cotton, 535 U.S. 625, 632-33 (2002) (holding that an appellate
court may not recognize as error the omission of drug quantity from
an indictment under § 846, because, since “[t]he evidence that the
conspiracy involved at least 50 grams of cocaine base was
‘overwhelming’ and ‘essentially uncontroverted,’” the error did not
“seriously affect[] the fairness, integrity or public reputation of
judicial proceedings”). Indeed, this court recently applied Cotton
in declining, on plain-error review, to recognize a Collins error
where the evidence of the defendant’s individual responsibility for
an amount in excess of 50 grams of crack “was overwhelming and
essentially uncontroverted.” Foster, 507 F.3d at 250-51. The
defendant in Foster had offered only a blanket challenge to the
drug quantities attributed to him, instead focusing his efforts on
challenging his guilt. The Foster court concluded that, in the
balance, “the government’s overwhelming evidence of the substantial
quantities of crack reasonably foreseeable” to the defendant would
have led a properly instructed jury to attribute at least 50 grams
38
contested the evidence supporting the omitted element, however, the
reviewing court must next “determine whether the ‘record contains
evidence that could rationally lead to a contrary finding with
respect to that omitted element.’ If not, then the error is
harmless.” Id. (quoting Neder, 527 U.S. at 19) (internal citations
omitted).14
This court has had numerous occasions since Brown to apply
Neder. In one post-Apprendi case, for example, this court found
harmless the district court’s erroneous instruction to the jury
that an element of the offense of “impeding, intimidating, or
obstructing an employee of the United States acting in an official
of crack to him, and affirmed his sentence. Id. at 252.
We do not apply Cotton here, however. This court has
recognized that “[t]he Cotton principles . . . are applicable only
on plain error review, [not when we review] for harmless error.”
United States v. Robinson, 460 F.3d 550, 560 (4th Cir. 2006).
Though harmless-error review, detailed in Brown and applied here,
also considers the weight of the evidence and whether the substance
of the underlying omitted element was contested, its framework is
analytically distinct from the plain-error inquiry. See United
States v. Olano, 507 U.S. 725, 732-35 (1993) (recognizing a four-
part test before reversal for plain error is appropriate, and then,
only at the discretion of the reviewing court). Our holding in
Robinson, though prohibiting application of Cotton here, does not,
as it cannot under Neder, foreclose application of harmless-error
analysis to the Collins error in this case.
14
The Brown court analyzed the harmlessness of the district
court’s failure to instruct the jury to identify three specific
criminal acts that constituted a “continuing series” for purposes
of proving a “continuing criminal enterprise” punishable under 21
U.S.C. § 848. Because the government had not sought to identify
any such acts at trial as constituting a “continuing series,” and
Brown had objected to evidence supporting the potential candidates
for such a series, the court ultimately found the error reversible.
Brown, 202 F.3d at 702-03.
39
capacity,” in violation of 26 U.S.C. § 7212(a), was reserved to the
court to decide as a matter of law. United States v. Lovern, 293
F.3d 695, 696-97 (4th Cir. 2002). In another, this court found
harmless what would come to be known as Promise error because “[n]o
defendant suggested that [the threshold drug] amounts [of § 841(b)]
had not been proven at trial, and we conclude that the
uncontroverted evidence demonstrated amounts hundreds of times more
than the amounts charged.” United States v. Strickland, 245 F.3d
368, 380 (4th Cir. 2001) (applying Neder on plain-error review,
while recognizing that the ultimate inquiry in both plain-error and
harmless-error review, that is, “whether substantial rights of the
defendant were affected,” is the same, though the burden of proof
is allocated differently under the two standards). See also United
States v. Higgs, 353 F.3d 281, 308 (4th Cir. 2003) (finding
harmless error the issuance of a capital indictment that failed to
allege the requisite statutory aggravating factors).
4.
In light of this understanding of harmless-error analysis, we
apply the standard to the Collins errors here. Each Appellant was
charged and convicted with conspiracy under § 846 to possess with
intent to distribute 5 kilograms of cocaine or 50 grams of cocaine
base in violation of § 841(a) and § 841(b)(1)(A). The district
court declined to offer instructions that would have allowed the
jury to find an Appellant guilty of conspiracy to distribute a
40
lesser amount of cocaine or cocaine base, as would be punished more
leniently under § 841(b)(1)(B) or (C). Therefore, the verdicts
returned by the jury necessarily corresponded to the offenses
punished under § 841(b)(1)(A). As we recognized in Collins, a
§ 846 offense punished under § 841(b)(1)(A) has, as an element that
must be found by the jury, an individualized determination that the
particular defendant was responsible for 5 kilograms of cocaine or
50 grams of cocaine base. It is this element that was omitted from
the jury instructions, and for which we now review the record to
determine if the evidence supported a finding of the element beyond
a reasonable doubt.
After careful review of the trial and sentencing transcripts
for all fifteen Appellants, we find that each, to a varying extent,
contested the drug amounts attributed to him or her by trial
testimony and by the district court at sentencing.15 See Brown, 202
F.3d at 700. We therefore proceed directly to the second Brown
inquiry, “whether the ‘record contains evidence that could
rationally lead to a contrary finding with respect to th[e] omitted
element’” of the individualized drug amounts of 5 kilograms of
cocaine or 50 grams of cocaine base. Brown, 202 F.3d at 701(quoting Neder, 527 U.S. at 19).
15
Because the trial and sentencing hearings predated our
decision in Collins, Appellants properly objected at sentencing to
the drug amounts attributed to them, as individualized drug amounts
were, under then-current law, mere sentencing factors.
41
In his extensive testimony at trial, John Williams recounted
his years of securing and distributing cocaine, totaling
approximately 2000 kilograms. He also explained that he understood
that the vast majority, if not all, of the cocaine would be
“cooked” into crack before it was sold to the end-user. Numerous
other witnesses corroborated this understanding. Furthermore,
recordings from Corey Williams’s wiretap and wire captured various
Appellants discussing crack sales or their prowess in cooking
crack. As aptly described by the district court at one sentencing
hearing, “Everyone testified [that the cocaine] was converted into
crack, that the whole purpose of this conspiracy was to buy cocaine
that could then be transferred into crack by means of methods that
would increase its weight and increase its profitability.” J.A.
5808. We find the evidence overwhelming that each member of the
conspiracy knew full well that the cocaine they were distributing
was being sold as crack. In most instances, in fact, Appellants
themselves were the “chefs.” See, e.g., S.J.A. 527 (transcript of
wiretap recording in which Marquel Riley describes “being the chef
for other people” and “[c]ooking they food for ‘em”); J.A. 5808
(same, in which Byrd refers to himself as “a master chef”).
In light of this overwhelming evidence, we must find each
Collins error harmless, provided that no rational jury could
attribute less than 50 grams of crack (or 50 grams of cocaine,
which would foreseeably be converted to crack) to each Appellant.
42
The evidence at trial showed that, even by conservative estimates,
most Appellants were responsible for many thousands or tens of
thousands of grams of crack. Even “lower-level” members of the
conspiracy were invariably caught by eyewitnesses, wiretap, wire,
or some combination of the three, engaging in transactions totaling
a few thousand grams of crack. A closer look at two examples
should serve to illustrate this point.
So-called peripheral conspirator Johnny Frank Davis engaged in
a number of controlled purchases with a UCA. Each purchase totaled
250 grams of cocaine, and each such meeting was recorded and
videotaped. These recordings also captured Davis bragging about
his ability to cook “crack” from cocaine and his skill in selling
drugs. Another witness testified that Davis had traded a Mercedes-
Benz automobile for another 250 grams of cocaine. Davis was also
caught on a wiretap recording discussing past deals with Corey
Williams, informing him that he had lined up two customers for 500
grams apiece, and bantering about converting the cocaine to crack.
Davis’s objection to this evidence was non-specific: he informed
the district court that he was never involved in the conspiracy and
never engaged in any of the transactions described at trial.
Because of the overwhelming amount of evidence suggesting that
Davis was personally responsible for several thousand grams of
cocaine that he planned to convert to crack, and because Davis
offered little to contest that evidence, we find that no rational
43
jury would have failed to find Davis personally responsible for 50
grams or more of crack.
A similar analysis governs the evidence the individual drug
amounts attributable to Furman Quattlebaum. No fewer than six
witnesses testified to engaging personally in drug transactions
with Quattlebaum, or to watching others do so, in amounts ranging
from 250 grams to 2000 grams of cocaine. One witness testified to
seeing Quattlebaum sell crack in amounts of over 50 grams.
Quattlebaum was also captured on a number of intercepted telephone
calls to Corey Williams, discussing his sales of crack. In one,
Quattlebaum can be heard describing his use of his oven to cook
crack in preparation for distribution. To contest these weights,
Quattlebaum offered the blanket assertion that “the whole [pre-
sentence report]” was flawed, and that he objected to “everything
to do with drug weight.” J.A. 5833-34. Again, in the face of
overwhelming evidence adduced at trial that Quattlebaum was
involved in the sale of many thousands of grams of crack,
Quattlebaum countered with bare assertions. We find that no
rational jury would have failed to find Quattlebaum personally
responsible for 50 grams or more of crack.
After careful review of the voluminous record in this appeal,
we make similar findings as to the large amounts of crack
attributable to each individual Appellant (save William Edwards).
As such, we find the Collins error with respect to those fourteen
44
Appellants to be harmless, since the “‘record contains [no]
evidence that could rationally lead to a contrary finding with
respect to th[e] omitted element’” of the individualized drug
amounts of 5 kilograms of cocaine or 50 grams of cocaine base for
each such Appellant. See Brown, 202 F.3d at 701 (quoting Neder,
527 U.S. at 19).
William Edwards, on the other hand, was connected to the
conspiracy only through Corey Williams, and then only in the
capacity of establishing “front” businesses for him and accepting
small amounts of cocaine to “grease” deals with potential business
associates. The government concedes that the Collins error in the
case of William Edwards cannot be shown to be harmless. We
therefore offer the government the same choice of remedies
presented in Collins:
We will withhold judgment as to the conspiracy count [for
William Edwards] for thirty days. The Government may
elect to request that we affirm the conspiracy conviction
and remand for [Edwards] to be re-sentenced under the
default penalty provision in § 841 that applies when the
amount of [cocaine] attributable to a defendant is less
than [500] grams, 21 U.S.C. § 841(b)(1)(C) . . . or the
Government can request that we reverse [Edwards’s]
conspiracy conviction and remand for a new trial.
Collins, 415 F.3d at 315.16
16
We have carefully considered Appellants’ other arguments
challenging their sentences, including the many objections to
individual sentencing enhancements. We find these challenges to be
without merit.
45
IV.
Having reviewed all of Appellants’ arguments challenging their
convictions and sentences, we find them to be without merit, save
reversible Booker error for all Appellants except Johnny Frank
Davis, and reversible Collins error for William Edwards. We
therefore vacate the sentences of all Appellants except for Johnny
Frank Davis and William Edwards, the latter being preserved only
until the government makes its election of remedy pursuant to
Collins. On remand for the thirteen Appellants to be re-sentenced
imminently under Booker, we note briefly that, because we have
found no reversible Collins error, the statutory penalty scheme of
§ 841(b)(1)(A), with its attendant statutory minima and maxima,
remains the proper framework in which to consider Appellants’ new
sentences.17
AFFIRMED IN PART,
VACATED AND REMANDED IN PART,
AND JUDGMENT WITHHELD IN PART
17
On November 1, 2007, the United States Sentencing Commission
lowered the Guidelines penalties for most crack-cocaine offenses.
See 72 Fed. Reg. 28558, 28571-73; U.S.S.G. App. C, Supp. Amend.
706; U.S.S.G. § 2D1.1 (2007). These amendments have since been
given retroactive effect, as of March 3, 2008. On Booker remand,
the district court should be careful to apply these amendments as
appropriate.
46
BAILEY, District Judge, concurring:
I fully concur in Judge Duncan’s excellent opinion. I write
separately to urge this Court to take this case or some other
suitable case en banc to consider the viability of United States v.
Collins, 415 F.3d 304 (4th Cir. 2005), in the wake of United States
v. Booker, 543 U.S. 220 (2005). I am of the opinion that Collins
is no longer viable for the reasons stated in footnote 12 of United
States v. Foster, 507 F.3d 233 (4th Cir. 2007), and the reasons
stated in Judge Niemeyer’s dissent in United States v. Ferguson,
245 Fed. Appx. 233 (4th Cir. 2007). See also Derman v. United
States, 298 F.3d 34, 42-43 (1st Cir. 2002), United States v.
Turner, 319 F.3d 716, 722-23 (5th Cir. 2003), United States v.
Knight, 342 F.3d 697, 710-11 (7th Cir. 2003), United States v.
Phillips, 349 F.3d 138, 141-43 (3d Cir. 2003), vacated on other
grounds, 543 U.S. 1102 (2005), and United States v. Stiger, 413
F.3d 1185 (10th Cir. 2005). I am of the opinion that the only
issue which should be sent to the jury is the drug type and weight
for the entire conspiracy, leaving individual culpability to the
sentencing judge.
47