United States v. Daniel McIntosh

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4357
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL MCINTOSH, a/k/a Barfly, a/k/a B-Fly,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00777-RWT-14)
Argued: January 28, 2016 Decided: August 23, 2016
Before WILKINSON, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ,
Highland, Maryland, for Appellant. Sonja M. Ralston, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Daniel McIntosh (“Appellant”) of
conspiracy to possess with intent to distribute marijuana,
conspiracy to launder money, and aiding and abetting interstate
travel in furtherance of drug trafficking. The district court
sentenced Appellant to 120 months of imprisonment and ordered
him to forfeit over $6.3 million. He timely appealed and
alleges several errors arising from his trial and sentencing.
We have reviewed the record and find no reversible
error. Therefore, for the reasons that follow, we affirm.
I.
During a decade-long, multi-state marijuana
trafficking conspiracy beginning in 2001, Appellant and 15
co-conspirators directed thousands of pounds of marijuana into
Baltimore, Maryland, from California and Canada by
tractor-trailer and airplane. 1 Appellant was heavily involved in
the conspiracy: he arranged for drivers as well as deliveries
of marijuana, assisted in unloading trucks containing up to 100
pounds of marijuana at a time, collected and counted proceeds,
and helped in dividing up the marijuana for distribution.
1We recite the facts in the light most favorable to the
Government, as the prevailing party at trial. See United States
v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 2015).
2
In 2007, Appellant took over a Baltimore bar/music
venue called Sonar, which he utilized as a cover for the illicit
marijuana operation. Sonar struggled with its operational
expenses, yet the infusion of cash from the marijuana operation
that was commingled with Sonar’s proceeds helped Appellant pay
Sonar’s bills, including payroll, outstanding checks, and tax
obligations. Moreover, Appellant used Sonar and its employees
to coordinate the marijuana distribution network. For instance,
Sonar was used as a drop-off and pick-up location for the cash
that supported the conspiracy, Appellant paid a co-conspirator
through Sonar’s payroll, and Appellant had a Sonar employee
deliver marijuana to an off-premises location.
In May 2012 in the District of Maryland, Appellant was
charged by a second superseding indictment, which was then
amended on September 11, 2012, with the following crimes:
conspiracy to distribute and possess with intent to distribute
1,000 kilograms or more of marijuana, in violation of 21 U.S.C.
§ 846 (“Count One”); conspiracy to launder money, in violation
of 18 U.S.C. § 1956(h) (“Count Two”); money laundering by
concealment, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)
(“Count Three”); knowingly maintaining a premises for the
purpose of distributing marijuana, in violation of 21 U.S.C.
§ 856(a)(1) (“Count Four”); managing and controlling a place for
the purpose of unlawfully storing, distributing, and using
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marijuana, in violation of 21 U.S.C. § 856(a)(2) (“Count Five”);
and aiding and abetting interstate commerce in furtherance of
drug trafficking, in violation of 18 U.S.C. §§ 1952, 2 (“Count
Six”).
On the first day of trial, September 11, 2012, the
Government filed an information pursuant to 21 U.S.C. § 851 (the
“Information”), seeking to enhance Appellant’s sentence and
citing four prior felony drug offenses. Appellant was convicted
of three of the offenses in Pennsylvania in 1998: possession
with intent to deliver marijuana, attempted possession of
marijuana, and attempted possession of marijuana with intent to
deliver. He was convicted of the remaining offense --
possession with intent to distribute marijuana -- in Maryland in
2005. As a result, the Government submitted that if the jury
convicted Appellant of conspiracy to distribute less than 1,000
kilograms but more than 100 kilograms, he would be subject to a
mandatory minimum term of ten years in prison. See 21 U.S.C.
§ 841(b)(1)(B).
The trial lasted approximately 25 days. At trial,
Appellant filed a motion to exclude evidence of the prior
Pennsylvania and Maryland marijuana convictions. He claimed
that including such convictions would violate Rule 404(b) of the
Federal Rules of Evidence. The district court denied
Appellant’s motion but cautioned the jury twice that the
4
evidence was to be used only for the limited purposes outlined
in Rule 404(b).
During trial, the Government introduced evidence that,
as to the Pennsylvania offenses, Appellant paid $12,000 for 15
pounds of marijuana from a confidential informant, and police
then recovered approximately one ounce of marijuana from
Appellant’s car. About one month later, Appellant arranged for
a courier to pay $2,400 for five pounds of marijuana. At a
consolidated proceeding, Appellant pled guilty to attempted
possession of marijuana and possession with intent to distribute
marijuana with regard to the 15-pound purchase. When he denied
involvement with the five-pound purchase, he was allowed to
enter an Alford plea 2 to the charges of attempted possession of
marijuana and conspiracy to possess with intent to deliver
marijuana. The Government also introduced a court record
reflecting Appellant’s Maryland conviction for possession with
intent to distribute marijuana, but no additional facts were
provided to the jury with regard to this conviction.
Ultimately, in the instant case, the District of
Maryland jury found Appellant guilty of a lesser included
2See North Carolina v. Alford, 400 U.S. 25 (1970)
(authorizing a defendant to waive trial and to consent to
punishment without admitting participation in the acts
constituting the crime).
5
offense in Count One, that is, conspiracy to distribute more
than 100 but less than 1,000 kilograms of marijuana; Count Two,
conspiracy to launder money; and Count Six, interstate travel in
furtherance of drug trafficking. He was acquitted of the
remaining counts.
At sentencing on March 20, 2014, the district court
established that Appellant was a career offender, and thus, his
advisory Sentencing Guidelines range was 360 months to life
imprisonment. The district court also determined that Appellant
was subject to a mandatory minimum sentence of ten years based
on the Government’s § 851 Information. Ultimately, the district
court varied downward and sentenced Appellant to the mandatory
minimum of 120 months for the drug conspiracy, a concurrent 120
months for the money laundering conspiracy, and a concurrent 60
months for the conviction of interstate travel in furtherance of
unlawful activity. The district court also ordered Appellant to
forfeit over $6.3 million, representing the gross proceeds from
his criminal activity.
In this appeal, Appellant claims the district court
erred in five ways: (1) admitting evidence of his prior
marijuana convictions in violation of Rule 404(b) (the “Rule
404(b) argument”); (2) imposing the mandatory minimum sentence
of 120 months based on the Information (the “sentencing
argument”); (3) imposing a forfeiture order without a
6
constitutional, factual, or statutory basis; (4) preventing
Appellant from presenting a defense and confronting witnesses;
and (5) denying his motion for acquittal based on insufficiency
of the evidence. While we reject each of these arguments, we
focus on the first two: the Rule 404(b) argument and the
sentencing argument.
II.
Rule 404(b) Argument
A.
We review a district court’s Rule 404(b) evidentiary
determinations for abuse of discretion. See United States v.
Briley, 770 F.3d 267, 275-76 (4th Cir. 2014). “Under this
standard, a district court abuses its discretion when it acts
arbitrarily or irrationally” in admitting the evidence. Id.
(internal quotation marks omitted). Even if the district court
abused its discretion, Appellant must still surmount the
harmless error hurdle. See United States v. Madden, 38 F.3d
747, 753 (4th Cir. 1994). “Where error is founded on a
violation of Rule 404(b), the test for harmlessness is whether
we can say with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
Id. (internal quotation marks omitted).
7
B.
The district court denied Appellant’s motion to
exclude his prior convictions because it concluded these prior
convictions were relevant, necessary, reliable, and not unduly
prejudicial. On appeal, Appellant (1) contends the Government
did not timely provide notice of its intended use of this
evidence; and (2) challenges the relevancy of the prior
convictions. We conclude that the district court did not abuse
its discretion.
1.
We first address Appellant’s argument that the
Government did not provide timely notice of its intent to use
Rule 404(b) evidence. Rule 404(b)(2) provides that upon request
by the defendant, the Government must, before trial, “provide
reasonable notice of the general nature of any such evidence
that the prosecutor intends to offer at trial.” Fed. R. Evid.
404(b)(2)(A). Such a notice “is intended to reduce surprise and
promote early resolution on the issue of admissibility.” Fed.
R. Evid. 404(b) advisory committee’s note to 1991 amendments.
Accordingly, if the Government does not comply with the notice
requirement of Rule 404(b), the proffered evidence is
inadmissible. See id. (“[T]he notice requirement serves as
condition precedent to admissibility of 404(b) evidence.”).
8
Contrary to Appellant’s argument, the Government
satisfied the notice requirement. Appellant’s trial counsel
herself acknowledged that August 1, 2012, was “the first time
[the Government] set out in some specificity what [the
Government was] hoping to submit to the court.” J.A. 1700. 3
This was 41 days prior to trial. Then, on August 26, 2012, the
Government again informed Appellant that it “may introduce
evidence of [Appellant’s] prior drug arrests and convictions
under [R]ule 404(b).” G.S.A. 30. 4 These notices were given
several weeks before the trial was set to begin on September 11.
And, although the content of the notice was broad in scope, the
Government nonetheless met the requirement by providing the
“general nature” of the type of evidence it was planning to
introduce. Fed. R. Evid. 404(b)(2).
Moreover, Appellant cannot claim that he was surprised
at trial because on September 11, 2012, he conceded in a motion
in limine “the [G]overnment has informed the defense that it may
introduce [Rule 404(b)] evidence.” G.S.A. 40; see United States
v. Basham, 561 F.3d 302, 327 n.12 (4th Cir. 2009) (sufficient
notice when record indicates that the defendant had actual
3
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
4
Citations to the “G.S.A.” refer to the Government’s
Supplemental Appendix filed in this appeal.
9
notice); United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997) (“[I]n cases where the prosecution has notified the
defendant of its intent to use particular Rule 404(b)
evidence[,] . . . the fear of a ‘trial by ambush’ recedes.”).
Indeed, it was nearly a month into trial, on October 9, 2012,
when the prior-act evidence was ultimately introduced, and
Appellant has provided no support for the notion that he lacked
time to prepare a sufficient defense.
Under these circumstances, we conclude the Government
provided reasonable notice to Appellant under Rule 404(b).
2.
Appellant next challenges the relevancy of the
Pennsylvania and Maryland convictions. Rule 404(b)(1) of the
Federal Rules of Evidence states, “Evidence of a crime, wrong,
or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1).
However, such evidence “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). Moreover, “Rule 404(b) is a rule of
inclusion,” and relevant evidence will be admitted except “that
which tends to prove only criminal disposition.” Briley, 770
F.3d at 275 (internal quotation marks omitted).
10
In assessing admissibility of Rule 404(b) evidence,
this court has set forth the following requirements:
(1) the prior-act evidence must be relevant
to an issue other than character, such as
intent; (2) it must be necessary to prove an
element of the crime charged; (3) it must be
reliable; and (4) its probative value must
not be substantially outweighed by its
prejudicial nature.
United States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013)
(alteration omitted) (internal quotation marks omitted).
Appellant contends the prior-act evidence in this case was “not
relevant or necessary,” Appellant’s Br. 16, but his brief only
makes a sufficient argument on the relevancy issue. Therefore,
our review is restricted to that issue. See Fed. R. App. P.
28(a)(8)(A); Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d
366, 376 (4th Cir. 2013) (argument is waived when a party fails
to support its contentions “with citations to the authorities
and parts of the record on which it relies” (alteration omitted)
(internal quotation marks omitted)).
Evidence is relevant when it is “sufficiently related
to the charged offense,” and “[t]he more closely that the prior
act is related to the charged conduct in time, pattern, or state
of mind, the greater the potential relevance of the prior act.”
United States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012)
(internal quotation marks omitted). However, when time, manner,
place, or pattern of conduct of the prior activity is not
11
related to the offense, past drug activity, in and of itself, is
not a sufficient nexus. See United States v. Johnson, 617 F.3d
286, 297 (4th Cir. 2010).
Applying these principles here, the fact that
Appellant’s prior convictions were strikingly similar to the
charged conduct weighs in favor of admission. Considering that
Appellant faced charges of conspiracy to distribute and
possession with intent to distribute marijuana and engaging in
interstate travel in furtherance of drug distribution
activities, the district court admitted the evidence of
Appellant’s prior marijuana convictions because the evidence was
“some indication of distributive intent.” J.A. 1728.
Further, inclusion of this evidence goes well beyond a
mere showing of Appellant’s criminal disposition. Rather, the
convictions are relevant to show Appellant’s state of mind,
intent, pattern of conduct of ongoing involvement, and knowledge
of the drug distribution trade. See McBride, 676 F.3d at 397;
Johnson, 617 F.3d at 297; see also United States v. Rooks, 596
F.3d 204, 211 (4th Cir. 2010) (holding that a 14-year-old
conviction was relevant to show “familiarity with drug
distribution business”).
In fact, for his Pennsylvania convictions, Appellant
first paid $12,000 to obtain 15 pounds of marijuana and then
utilized a courier to pick up several more pounds of marijuana
12
on his behalf -- quite similar to his conduct in this case.
Additionally, the Government introduced Appellant’s 2005
Baltimore County conviction for possession with intent to
distribute marijuana, which took place at the same time, same
place, and consisted of the same conduct as that charged in the
instant case. As in Rooks, the prior convictions in this case
were offered for permissible purposes under Rule 404(b), that
is, to show Appellant’s familiarity with drug distribution
practices and intent to distribute marijuana in the Baltimore
area. And as set forth in McBride, the prior acts in this case
“closely . . . relate[] to the charged conduct in time, pattern,
or state of mind.” 676 F.3d at 397.
Significantly, the district court prefaced the
introduction of each of these convictions with an instruction
explaining their limited evidentiary purpose. See United States
v. Williams, 461 F.3d 441, 451 (4th Cir. 2006) (explaining that
limiting instructions mitigate any possibility of prejudice
because we “presum[e] that the jury obeyed [them]” (internal
quotation marks omitted)). As a result, we have no difficulty
concluding that the prior-act evidence in this case was
relevant. Appellant’s Rule 404(b) arguments, therefore, fail.
Even if we assume the district court erred in this
regard, the admission of such evidence was not harmful error.
The evidence against Appellant was overwhelming during the
13
multi-week trial, including the Government’s introduction of
testimony from numerous witnesses and co-conspirators. We
conclude that excluding the prior convictions would not have
altered the jury’s decision, and thus any perceived error is
harmless. See Madden, 38 F.3d at 753. 5
III.
Sentencing Argument
A.
Appellant also challenges the propriety of the
district court’s imposition of a mandatory minimum sentence
based on the Government’s Information. In addressing such a
challenge, we review the court’s findings of fact for clear
error and its legal conclusions de novo. See United States v.
Kellam, 568 F.3d 125, 143 (4th Cir. 2009).
B.
Section 851(a)(1) provides that the Government must
request increased punishment for a defendant by filing an
information stating that the defendant has one or more prior
5 Appellant also alleges numerous other erroneous
evidentiary rulings, yet fails to support his contentions with
citations to the record. See Fed. R. App. P. 28(a)(8)(A);
Projects Mgmt., 734 F.3d at 376 ; Johnson v. United States, 734
F.3d 352, 360 (4th Cir. 2013) (determining that an appellant
waived his claim when he failed “in any meaningful way” to
comply with the dictates of Rule 28 of the Federal Rules of
Appellate Procedure). Nonetheless, we have reviewed the record
and cannot divine any error in this regard.
14
convictions qualifying him for a sentence enhancement.
According to 21 U.S.C. § 841(b)(1)(B)(vii) and § 846, a person
convicted of conspiracy to distribute and possess with intent to
distribute 100 kilograms or more of marijuana is subject to a
ten-year mandatory minimum if he has a prior conviction for a
felony drug offense. See 21 U.S.C. § 841(b)(1)(B). In this
case, the Government cited all of the Pennsylvania convictions
and the Maryland conviction as qualifying convictions.
Appellant contends the convictions cannot be used to enhance his
sentence for three reasons: (1) the Pennsylvania convictions
were not charged by indictment; (2) any fact that increases the
mandatory minimum sentence must be alleged in an indictment and
proved to the jury beyond a reasonable doubt; and (3) the
Controlled Substances Act violates the separation of powers by
giving the executive branch the power to classify marijuana as a
controlled substance and prosecute offenses as well. 6
We easily dispose of Appellant’s second and third
arguments as they have been roundly rejected by the Supreme
6Appellant also argues in a conclusory fashion that the
Maryland conviction “c[annot] be used to enhance the sentence
because it was not a separate prior but rather, it was part of
the instant offense.” We need not consider this argument
because McIntosh fails to cite any authority supporting his
position. See Fed. R. App. P. 28(a)(8)(A). Moreover, the
Pennsylvania convictions are sufficient to trigger
§ 841(b)(1)(B)’s 10-year mandatory minimum.
15
Court. See Alleyne v. United States, 133 S. Ct. 2151, 2160 &
n.1 (2013) (recognizing the “general rule” that “[f]acts that
expose a defendant to a punishment greater than that otherwise
legally prescribed were by definition ‘elements’ of a separate
legal offense,” but acknowledging that “the fact of a prior
conviction” is an “exception” to this rule (citing Almendarez–
Torres v. United States, 523 U.S. 224 (1998)) (internal
quotation marks omitted)); Touby v. United States, 500 U.S. 160,
167-68 (2012) (rejecting argument that the separation of powers
is upset by the Attorney General’s dual role of scheduling drugs
and prosecuting those who manufacture and distribute those
drugs, explaining that argument “has no basis in our separation-
of-powers jurisprudence”).
Next, we turn to Appellant’s argument that his
Pennsylvania convictions do not qualify because they were not
charged by indictment. Section 851(a)(2) provides, “An
information may not be filed under this section if the increased
punishment which may be imposed is imprisonment for a term in
excess of three years unless the person either waived or was
afforded prosecution by indictment for the offense for which
such increased punishment may be imposed.” 21 U.S.C.
§ 851(a)(2) (emphasis supplied). This language clearly states
that the instant offense should have been charged by indictment,
not a prior qualifying offense. Indeed, every other circuit has
16
so held. See United States v. Sanchez, 389 F.3d 271, 273 (1st
Cir. 2004) (collecting cases). And because Appellant’s federal
convictions were charged by indictment, § 851(a)(2) is satisfied
in this case. Therefore, we reject Appellant’s contentions.
IV.
We have reviewed Appellant’s remaining arguments that
the district court lacked the constitutional, statutory, and
factual bases to enter the forfeiture order; the evidence
presented at trial was insufficient to support the convictions;
Appellant was unable to confront witnesses against him; he was
erroneously denied a continuance to review discovery; and he was
improperly denied CJA funds for an expert. Upon review of the
record and the relevant authorities, we conclude these claims
are without merit.
V.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
17