United States v. Strickland , 245 F.3d 368 ( 2001 )

Filed: April 16, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 99-4855(L)
(CR-98-82)
United States of America,
Plaintiff - Appellee,
versus
Eugene Strickland, et al.,
Defendants - Appellants.
O R D E R
The court amends its opinion filed April 3, 2001, as follows:
On page 12, footnote 1, line 10 -- the reference to “235 U.S.
192" is corrected to read “235 F.3d 192.”
On page 21, third full paragraph, line 1 -- the reference to
“28 U.S.C. § 846" is corrected to read “21 U.S.C. § 846."
On page 22, second full paragraph, lines 3-4 -- the reference
to “853 F.2d 214" is corrected to read “853 F.2d 215.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4855
EUGENE STRICKLAND,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4856
MARSHALL STRICKLAND,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4857
TIFFANY GRAHAM
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4858
EMILY CHARITY CHAVIS, a/k/a Pooh,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4859
MICKEY STRICKLAND,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4860
ROBERT M. STRICKLAND, a/k/a Punch,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4861
LEON STRICKLAND,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4862
MITCHELL KELLY CHAVIS,
Defendant-Appellant.
2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4863
TRAVIS STRICKLAND,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4864
PATRICIA MCGIRT,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-98-82)
Argued: January 26, 2001
Decided: April 3, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Michael joined. Judge Michael wrote an opin-
ion concurring in part and concurring in the judgment.
_________________________________________________________________
3
COUNSEL
ARGUED: Robert John McAfee, MCCOTTER, MCAFEE & ASH-
TON, New Bern, North Carolina; Felix Thomas Holt, III, BEAVER,
HOLT, RICHARDSON, STERNLICHT, BURGE & GLAZIER,
P.A., Fayetteville, North Carolina; Vaughan Sharp Winborne, Jr.,
Raleigh, North Carolina; Hart Miles, Jr., Raleigh, North Carolina, for
Appellants. Mary Jude Darrow, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Richard B. Gla-
zier, BEAVER, HOLT, RICHARDSON, STERNLICHT, BURGE &
GLAZIER, P.A., Fayetteville, North Carolina, for Appellant Marshall
Strickland; Gregory J. Ramage, Raleigh, North Carolina, for Appel-
lant Graham; Mark E. Edwards, EDWARDS & FLEMMING,
P.L.L.C., Durham, North Carolina, for Appellant Emily Chavis;
James M. Ayers, II, New Bern, North Carolina, for Appellant Mickey
Strickland; Robert L. Cooper, COOPER, DAVIS & COOPER, Fay-
etteville, North Carolina, for Appellant Mitchell Chavis; Carlton M.
Mansfield, Lumberton, North Carolina, for Appellant Travis Strick-
land; David K. Williams, Jr., Greensboro, North Carolina, for Appel-
lant McGirt. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
On appeal from their convictions for conspiracy to traffic in drugs
and related offenses, the ten defendants in this case challenge their
sentences under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),
maintaining that they were improperly denied the right to have the
jury find drug quantities and other sentence-enhancing facts. Various
defendants also assign error based on (1) the use of evidence from an
illegal search, (2) a second trial after a mistrial in violation of the
Double Jeopardy Clause, (3) the failure to sever several of the defen-
dants' cases, (4) the insufficiency of evidence, (5) the admission of
irrelevant and prejudicial evidence, (6) prosecutorial misconduct, (7)
the rejection of the "public authority" defense, and (8) the attribution
4
of excessive drug quantities for sentencing purposes. For the reasons
that follow, we reject each of these contentions and affirm.
I
The Strickland family organization was engaged in extensive
cocaine and cocaine base ("crack cocaine") distribution in Maxton,
Robeson County, North Carolina, over the period from 1989 to 1999.
Eugene Strickland and Marshall Strickland were primary sources for
cocaine and cocaine base sold principally from three open-air loca-
tions in Robeson County -- at a well-known curve on North Carolina
State Route 130 ("Deep Curve"); at "Mickey's Place" and the shop
behind it; and at Eugene Strickland's residence. They were in turn
supplied during part of the period by Tiffany Graham. Emily Charity
Chavis assisted Eugene Strickland in managing the money as well as
in selling cocaine. Leon Strickland, Mickey Strickland, Robert
"Punch" Strickland, Mitchell Kelly Chavis, and Travis Strickland
received cocaine from Eugene Strickland and Marshall Strickland and
sold it on the street, mostly at the three locations in Robeson County.
Patricia McGirt was the mother of Emily Charity Chavis and was
present at times when Eugene Strickland sold cocaine. She also
assisted Eugene Strickland and Emily Charity Chavis and others to
purchase cocaine from one of Eugene Strickland's sources and hosted
one of his sources at her home.
Ten members of the conspiracy were tried in this case, and all were
convicted, but more than 15 other related cases were separately prose-
cuted against others. While the court granted motions for judgment of
acquittal in favor of Eugene Strickland and Marshall Strickland
(Counts II and III) for firearms offenses, the jury convicted all defen-
dants of conspiracy to engage in drug trafficking, in violation of 21
U.S.C. §§ 846 & 841(a)(1), and Eugene Strickland and Travis Strick-
land of one count each for firearms offenses.
The district court sentenced Eugene Strickland to life imprisonment
plus 60 months for his firearm count; Travis Strickland to 188 months
imprisonment plus 60 months for his firearm count; Marshall Strick-
land to 400 months imprisonment; Tiffany Graham to 292 months;
Emily Charity Chavis, 292 months; Mickey Strickland, 235 months;
Robert "Punch" Strickland, 292 months; Leon Strickland, 292
5
months; Mitchell Kelly Chavis, 262 months; and Patricia McGirt, 63
months. Each of the defendants was also sentenced to a five-year term
of supervised release and ordered to pay a fine. These appeals fol-
lowed.
II
The defendants' most significant argument is that their sentences
for drug-trafficking crimes were improperly enhanced by the quantity
of drugs involved. They argue that they were not charged with the
amount of drugs that would enhance their sentences and that the jury
was not instructed to find the enhanced amounts beyond a reasonable
doubt. Rather, the enhancements were found by the sentencing judge
as part of the sentencing process. More specifically they contend that
[w]hen a statutory "sentencing factor", specifically drug
quantity, increases the maximum sentence beyond the sen-
tencing range that would otherwise be allowed by the jury's
verdict, the factor is no longer simply a matter of sentenc-
ing, but an element of a different crime.
Directing their argument to the circumstances in this case, the defen-
dants contend:
There is simply no question that the indictment failed to set
out, with any specificity, the amount of drugs the defendant
was charged with under § 841; the jury charge issued in this
case did not require the jury to make any factual finding of
the amount of narcotics involved; the jury verdict only
required the defendant to be found guilty or not guilty as to
Count 1 with no special interrogatory attached, (J.A. at
2107); and the ultimate finding against the defendant of the
amount of narcotics was made by the trial judge at sentenc-
ing on a preponderance of the evidence standard alone.
The defendants assert that taking the issue of enhancing drug quanti-
ties from the jury denied them the due process guaranteed by the Fifth
Amendment and the notice and jury trial guarantees of the Sixth
Amendment. They base their arguments on two recent Supreme Court
6
decisions, Jones v. United States, 526 U.S. 227 (1999), and Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000). The defendants claim that they
preserved this error at trial through their generalized challenge to drug
quantities made during sentencing. In the alternative, they argue, the
error amounted to a "plain error" that we should notice and correct
under the analysis of United States v. Olano, 507 U.S. 725 (1993).
The government contends that the Apprendi defense cannot apply
to all of the defendants, because several were sentenced to a term of
imprisonment under 240 months, the lowest maximum amount for
conspiring to traffic in cocaine and cocaine base in violation of 21
U.S.C. § 846. See 21 U.S.C. §§ 846, 841(b)(1)(C). As to those defen-
dants for whom the argument can be made that their sentences were
enhanced beyond 240 months because of the quantity of drugs
involved, the government concedes, based on our no-longer viable
decision in United States v. Angle, 230 F.3d 113 (4th Cir. 2000), that
the district court erred under Apprendi and that the error was plain.
The Angle decision, however, has since been vacated by our order to
rehear that case en banc. Rather than challenging whether there was
error, the government argues that, because the error was not pre-
served, it can only be reviewed under plain-error principles. Under
those principles, the defendants whose sentences were enhanced
beyond 240 months because of the quantity of drugs involved could
not take advantage of the error because it did not affect their substan-
tial rights. The government states that "overwhelming evidence estab-
lished that the conspiracy involved far greater quantities of crack
cocaine than those required to support the defendants' sentences."
We begin with the necessary observation that none of the defen-
dants in this case objected to the indictment for its failure to charge
drug quantities; none requested an instruction that the jury be required
to find drug quantities; and none requested a special interrogatory on
drug quantities or objected to a general verdict. Indeed, during sen-
tencing, while some of the defendants objected to the attribution of
some drug quantities, none challenged the conclusion that the govern-
ment proved the minimum amount of drugs to give rise to a life sen-
tence under § 841(b). See 21 U.S.C. § 841(b)(1)(A) (providing that
trafficking in 5 kilograms of cocaine or 50 grams of crack may be
punished by up to life imprisonment). Thus, because the antecedents
for making an Apprendi argument were not preserved during trial --
7
indeed Apprendi had not yet been decided-- we can only review the
defendants' objections on appeal for plain error under Federal Rule
of Criminal Procedure 52(b). See United States v. Lewis, 235 F.3d
215, 218 (4th Cir. 2000).
Rule 52(b) provides:
Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of
the court.
This rule requires (1) the demonstration of an "error" (2) that was
"plain" and (3) that affected the "substantial rights" of the defendant.
See Olano, 507 U.S. at 731-32; Lewis, 235 F.3d at 219; United States
v. Bowens, 224 F.3d 302, 315 (4th Cir. 2000); United States v. Has-
tings, 134 F.3d 235, 239 (4th Cir. 1998). Even after the defendants
satisfy the requirements of Rule 52(b), the court is left with the dis-
cretionary decision of whether to notice or recognize the error. But in
the exercise of that discretion, a court may notice or recognize a plain
error only when it "seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Bowens, 224 F.3d at 315 (quoting
Olano, 507 U.S. at 736) (internal quotation marks and other citations
omitted).
Because of the procedural course of this case, there might not even
be an error under Apprendi. The defendants were charged with a sin-
gle count of conspiracy to traffic in cocaine and cocaine base over a
period of 10 years. The second superseding indictment charged, "Dur-
ing the course of the conspiracy, at least five (5) kilograms of cocaine
and fifty (50) grams of cocaine base (crack) were possessed and dis-
tributed." And at trial, the evidence presented to the jury, as is
detailed below, demonstrated amounts far exceeding the amounts
charged. Indeed, the very first transaction, of probably hundreds dur-
ing the course of the conspiracy, involved the sale of one-and-a-half
kilograms of cocaine base, 30 times the minimum amount required to
expose members of the conspiracy to a life sentence. See 21 U.S.C.
§ 841(b)(1)(A)(iii). The presentence reports in this case indicate that
the conspiracy involved over 38 kilograms of cocaine base. Finally,
the district court's instructions to the jury suggested that what was
8
charged had to be proved beyond a reasonable doubt to find guilt. The
court stated:
Unless the government proves beyond a reasonable doubt
that the Defendants have committed every element of the
offenses with which they have been charged, you must find
the Defendants not guilty of those offenses.
***
The Defendants are not on trial for any act or conduct or
offense not alleged in the indictment.
Moreover, when instructing the jury about how they might find the
intent requirement, the court stated that the jury could consider "the
purity of the controlled substance, the quantity of the controlled sub-
stance, the presence of equipment used in processing or sale of the
controlled substances, and large amounts of cash or weapons." On
this record, we might well be able to conclude that defendants have
not established any Apprendi error because they failed to show that
the issue of drug quantity was not submitted to the jury. See United
States v. Richardson, 233 F.3d 223, 230-31 (4th Cir. 2000). The jury
was not, however, specifically directed to find drug quantities and the
verdict was only a general verdict of guilt. Moreover, it is not clear
from the record whether the jury was provided with a copy of the
indictment or whether the drug quantities from the indictment were
read to the jury. Although the defendants have the burden of estab-
lishing each element of plain error, see Hastings, 134 F.3d at 239, our
doubt about whether the jury did find drug quantities compels us to
consider the next two prongs of the plain-error analysis.
Because our Angle opinion controlled at the time that the govern-
ment submitted its brief on appeal, the government conceded that
plain error was committed and argues only the effect of the error. But
with Angle vacated, we are left to determine whether the district
court's sentences for violations of 21 U.S.C. § 841, including sen-
tences over 240 months, based on judicial findings of drug quantities,
amounted to error under Apprendi.
9
In Apprendi, the issue presented to the Supreme Court was whether
the sentencing judge could enhance a sentence when the conduct con-
stituted a "hate crime" -- i.e., one committed "with a purpose to
intimidate an individual or group of individuals because of race,
color, gender, handicap, religion, sexual orientation or ethnicity."
Apprendi, 120 S. Ct. at 2351 (quoting N.J. Stat. Ann. § 2C:44-3(e)).
The defendant had fired several bullets at the house of an African-
American family that had recently moved into a previously all-white
neighborhood. After the defendant pled guilty to a firearm possession
count, for which the maximum sentence was ten years imprisonment,
the sentencing court enhanced that maximum sentence by two years,
relying on a New Jersey statute that permitted enhancement when the
offense was racially motivated. The court thus sentenced the defen-
dant to a twelve-year term, which was longer than the ten-year maxi-
mum for firearm possession. The Supreme Court of the United States
reversed, concluding that, "[o]ther than the fact of a 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." Id. at 2362-63. Because the defendant had not
admitted his racial bias during the plea agreement and the state had
not proved that bias to a jury beyond a reasonable doubt, the maxi-
mum punishment that could be imposed for firearm possession was
ten years. While the Court in Apprendi recognized that it had earlier,
in Jones v. United States, only "expressed serious doubt concerning
the constitutionality of allowing [any] penalty-enhancing findings to
be determined by a judge by a preponderance of the evidence," 120
S. Ct. at 2353, the Court in Apprendi applied the principle but limited
its application to factual determinations "that increase[ ] the penalty
for a crime beyond the prescribed statutory maximum," id. at 2362-63
(emphasis added).
At the core of both Jones and Apprendi was a recognition that a
legislature may prescribe both the elements of the offense and factors
for sentencing, and that under our system, trial responsibility is
divided between the jury, which finds guilt or innocence, and the
court, which imposes the sentence. See Jones, 526 U.S. at 232;
Apprendi, 120 S. Ct. at 2358; see also Almendarez-Torres v. United
States, 523 U.S. 224, 228 (1998) (observing that it is "normally a mat-
ter for Congress" to distinguish between elements of the crime and
factors for sentencing); McMillan v. Pennsylvania, 477 U.S. 79, 85
10
(observing that a "legislature's definition of the elements" of an
offense is "usually dispositive"). In Jones, the Supreme Court contin-
ued also to approve the different burdens of proof in finding guilt and
in finding factors that may enhance a sentence. See Jones, 526 U.S.
at 248. The constitutional issue arises not from the distinct roles of
judge and jury, nor from the different burdens of proof, but from the
functional blurring of the roles. See id. at 239-48.
Tools of statutory interpretation thus may resolve the preliminary
question of whether Congress (or a legislature) intended a factor to be
an element of the offense or a sentencing factor. See, e.g.,
Almendarez-Torres, 523 U.S. at 238. When the statute is ambiguous
and is susceptible of two constructions -- one in which the statutory
factor might be an element of the offense and the other where it might
be merely a sentencing enhancement -- then we resolve the ambigu-
ity by adopting the interpretation that avoids the Sixth Amendment
issue of denying a right to jury trial on an element of the offense. See
Jones, 528 U.S. at 239, 251-52. In Jones, however, the Court noted
that "some statutes come with the benefit of provisions straightfor-
wardly addressing the distinction between elements and sentencing
factors," id. at 232, and in those cases, Congress' intent should be
controlling, at least as a matter of statutory interpretation.
In this case, it is arguable as a matter of statutory interpretation that
Congress' intent in 21 U.S.C. § 841 is clear. The statute sets forth the
offense in 21 U.S.C. § 841(a) under the heading "Unlawful Acts," and
the sentences in § 841(b) under the heading "Penalties." One can con-
clude from a "straightforward" reading that the factors in subsection
(b) are therefore all sentence enhancements. The fact that the sentenc-
ing range is fractured into sub-ranges, depending on the type of drug
involved and its amount serves precisely the same function as do the
similar sub-ranges found in the Sentencing Guidelines. See
Almendarez-Torres, 523 U.S. at 229-35 (finding, as a statutory matter,
that an analogous enhancement was a sentencing factor). Indeed, the
Almendarez-Torres Court repeatedly referred to 21 U.S.C. § 841 as an
example of a statute where the statutory enhancements to increase the
penalty were sentencing factors. See 523 U.S. at 230, 236.
But both Jones and Apprendi make clear that even if a statute is
unambiguous, the constitutional question of whether the legislature
11
improperly took from the jury its right to decide an element of the
offense, by including it as a sentencing factor, still must be addressed.
See Jones, 526 U.S. at 232, 248; Apprendi, 120 S. Ct. at 2360
("constitutional limits exist to States' authority to define away facts
necessary to constitute a criminal offense"). Arguably, however,
Apprendi makes Congress' intent dispositive on the constitutional
issue by requiring only that facts which increase the penalty beyond
the statutory maximum be decided by the jury. But this still may not
resolve whether 21 U.S.C. § 841(b), with its sub-ranges of sentences,
impermissibly takes away from the jury factfinding on an element of
the offense, an issue that we are scheduled to address in our rehearing
of Angle. We need not even confront the issue today, however,
because the further analysis of defendants' claim under plain-error
principles -- whether the error affected the defendants' substantial
rights -- leads us to a more certain, and therefore satisfactory, deter-
mination on the defendants' Apprendi claim.1 1
The substantial rights that defendants claim were affected in this
case are the rights to be given notice of drug quantities in the indict-
ment and to have these quantities determined by the jury, rather than
the court, under the reasonable-doubt standard.
First, the assertion that the indictment failed to give the defendants
notice is meritless. The indictment charged the defendants with a con-
spiracy continuing over the course of a ten-year period, beginning in
1989, to traffic in cocaine and crack cocaine. The indictment states
that "at least five (5) kilograms of cocaine and fifty (50) grams of
cocaine base (crack) were possessed and distributed" during the con-
_________________________________________________________________
1 Because Travis Strickland, Mickey Strickland, and Patricia McGirt
were sentenced to less than 240 months imprisonment, the lowest maxi-
mum sentence for any violation of 21 U.S.C. § 841(a) based on cocaine
trafficking, they cannot attempt to assert any Apprendi argument. As we
have held, "[b]ecause the sentencing enhancements . . . did not extend
[the defendant's] sentence beyond the maximums prescribed for his
offenses by the substantive provision of the United States Code, the gov-
ernment was not required to submit to a jury and prove beyond a reason-
able doubt the facts relevant to those enhancements." United States v.
Kinter, 235 F.3d 192, 202 (4th Cir. 2000).
12
spiracy. These allegations adequately gave the defendants notice, and
their rights in this regard were not adversely affected.2
2
The question, however, of whether the failure to have the jury
decide drug quantities affected the defendants' substantial rights
requires some analysis. The substantial rights requirement is not satis-
fied by merely showing that the court did not submit an element of
the offense to the jury; the error must have caused prejudice. See
Olano, 507 U.S. at 734; Hastings, 134 F.3d at 241. And unlike the
harmless-error test, imposed by Federal Rule of Criminal Procedure
52(a), under which the government bears the burden of showing that
an error did not result in any prejudice, the defendant bears the burden
of showing prejudice under the plain-error test of Federal Rule of
Criminal Procedure 52(b). See id.; see also Hastings, 134 F.3d at 240.
The defendants must thus demonstrate that the jury would not have
found, beyond a reasonable doubt, that the defendants conspired to
traffic in at least 5 kilograms of cocaine or 50 grams of crack. See
United States v. Mojica-Baez, 229 F.3d 292, 307 (1st Cir. 2000) (con-
sidering, in determining whether substantial rights were affected,
"what prospects there were that submission of the question to the jury
would have resulted in a different outcome, keeping in mind the
higher standard of proof required before the jury"); see also United
States v. Swatzi, 228 F.3d 1278, 1282-83 (11th Cir. 2000); United
States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (noting that even
a preserved Apprendi error can be harmless if "the record does not
contain evidence that could rationally lead to a contrary finding with
respect to drug quantity").
While the harmless error analysis imposes the burden of showing
an absence of prejudice on the government and the plain-error analy-
sis under Rule 52(b) imposes the burden of showing prejudice on the
defendant, in both cases the prejudice turns on whether substantial
rights of the defendant were affected. To this extent, the analysis in
Neder v. United States, 527 U.S. 1 (1999), applying principles of
harmless error, proves instructive. In Neder, the trial court failed to
instruct the jury on materiality, an element of the offense for which
the defendant was charged. As a consequence, the jury necessarily
_________________________________________________________________
2 In their Reply Brief, the defendants concede that the indictment was
"sufficient."
13
made no finding on materiality. The Supreme Court held that this
error was subject to a harmless-error analysis under Rule 52(a) and
that an error is harmless when "it appears `beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.'" Id. at 15 (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). Articulating the particular test for when an omitted instruc-
tion on an element of an offense is harmless, the Court stated:
Where a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and sup-
ported 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.
Id. at 17. The Court observed that an application of this test will often
require the reviewing court to conduct a thorough examination of the
record to determine, beyond a reasonable doubt, whether the jury ver-
dict would have been the same absent the error. If the reviewing court
concludes that the verdict would not have been the same, "for exam-
ple, where the defendant contested the omitted element and raised
evidence sufficient to support a contrary finding," the error would not
be harmless. Id. at 19.
In this plain-error case before us, the defendants have not met their
heavy burden, as we easily conclude, beyond a reasonable doubt, that
the jury verdict would have been the same had the jury been asked
specifically to find whether the conspiracy in this case involved more
than 5 kilograms of cocaine or 50 grams of crack cocaine. No defen-
dant suggested that these amounts had not been proven at trial, and
we conclude that the uncontroverted evidence demonstrated amounts
hundreds of times more than the amounts charged. The government
points to the following evidence, as is confirmed in the record, which
demonstrates the large amount of drugs involved:
Jacquelin Sainvil identified Tiffany Graham, Eugene Strick-
land, Marshall Strickland and Mickey Strickland as all par-
ticipating in crack cocaine deals in the summer of 1997. The
first transaction he testified about being present for involved
one-and-a-half kilograms of crack cocaine, which Tiffany
Graham delivered to Eugene and Marshall Strickland, and
14
Mickey Strickland tested. This transaction alone surpasses
the statutory requirement of 50 grams of crack cocaine
required to support a life sentence.
Ron Miles, who only sold crack cocaine testified that he
sold nine-ounce quantities of crack cocaine to Mickey
Strickland numerous times, "sometimes twice a week, some-
times more.["] Miles also sold similar quantities to Eugene
and Marshall Strickland. Miles testified that Emily Charity
Chavis was present for one 33-gram deal, and in fact, gave
him the money for the crack that she and Eugene Strickland
purchased. Miles recounted selling quarter ounces of crack
on one or two occasions to Mitchell Kelly Chavis. Miles
also sold crack to Leon Strickland on one occasion.
Christina Scott identified Eugene Strickland, Marshall
Strickland, Robert Neil Strickland ("Punch"), and Emily
Charity Chavis as individuals who sold her crack cocaine
over a number of years. Christina Scott purchased $80 to
$100 quantities of crack cocaine "about everyday" behind
"Mickey's trailer" from 1994 through 1997, from Eugene
and Marshall Strickland, and "Punch" (Robert Strickland).
Brenda Barefoot testified that she purchased cocaine from
Eugene, Marshall and Leon Strickland, "so many times over
the last couple years that I was there, I can't remember."
She also admitted purchasing crack cocaine from Robert
"Punch" Strickland and Travis Strickland on"numerous
occasions." Barefoot recalled purchasing a $20 piece of
cocaine from Mitchell Kelly Strickland (Chavis) on one
occasion.
Deputy Steve Lovin stopped Leon Strickland and James
Dallas Jacobs in August, 1998, and observed Leon Strick-
land place a quantity of crack cocaine under the car in which
he was seated.
At "Mickey's residence," James Dallas Jacobs purchased
crack cocaine from "Marshall or Eugene or Leon . . . Travis
and Punch and Kelly," and one or two times from Mickey
15
Strickland. James Dallas Jacobs sold crack cocaine at
"Mickey's" that "Leon or Eugene or Marshall," provided to
him.
James Dallas Jacobs testified that he met Tiffany Graham
during the summer of 1997, when she tried to sell four and
one-half ounces of crack cocaine to Eugene Strickland.
In early January, 1999, Ronnie Strickland, a cocaine user
and seller, made three purchases of crack cocaine from the
"Strickland boys" (Leon Strickland and James Dallas Jacobs
sold the crack to them, after he contacted Eugene and Mar-
shall Strickland regarding making his buys) in cooperation
with the [Robeson County Sheriff's Department].
(Emphasis added). In short, the evidence establishing the threshold
amounts of cocaine and crack cocaine for life imprisonment sentences
was not only overwhelming, but also uncontested. We conclude,
therefore, beyond a reasonable doubt, that had the quantities been
submitted to the jury, the jury's verdict would have been the same.
In a similar vein, Marshall Strickland argues that the district court's
findings pursuant to the Sentencing Guidelines to enhance his sen-
tence violated the principles of Jones and Apprendi. During sentenc-
ing, the district court found that Marshall Strickland possessed a
firearm during the commission of an offense and enhanced his base
offense level two levels under U.S.S.G. § 2D1.1(b)(1). The court also
found that Marshall was "an organizer, leader, manager, or supervi-
sor" and enhanced his offense level another two levels. These
enhancements increased Marshall Strickland's maximum punishment
from 327 months imprisonment to life imprisonment, and his actual
sentence of 400 months imprisonment was 73 months more than
would have been permissible without the enhancements. But again,
we have held that "the current practice of judicial factfinding under
the [Sentencing] Guidelines is not subject to the Apprendi require-
ments -- at least so long as that factfinding does not enhance a defen-
dant's sentence beyond the maximum term specified in the
substantive statute." Kinter, 235 F.3d at 201. In this case, by reason
of the analysis we have already made -- i.e., that Marshall Strickland
was charged with conspiracy to traffic in more than 50 grams of crack
16
cocaine and that overwhelming evidence supported this charge --
Marshall's maximum statutory sentence was life imprisonment. See
21 U.S.C. § 841(b)(1)(A). Thus, the enhancement from 327 months
to 400 months was within the prescribed statutory maximum. See
Apprendi, 120 S. Ct. at 2362-63.
III
Leon Strickland contends that his consent to the search of his
mobile home at the time of his arrest was not voluntary and that there-
fore the guns and drugs seized during that search should have been
suppressed. Even though Leon Strickland agrees that he and his wife
voiced consent to a search of their home, he challenges the voluntari-
ness of the consent in the context of the circumstances. He states that
the essence of his argument was accurately captured by the district
court's summary:
I think it's common sense if somebody comes into your
home and there's six men or four men in your house at 6:30
in the morning and you're handcuffed and they've got fire-
arms and they say "Can I search your house?," I bet you 99
out of 100 are going to say "yes sir."
Leon Strickland adds that when law enforcement officials received
their consent to search his residence, "they had already explicitly
shown the Strickland family that their authority extended to every part
of the Stricklands' persons and home. Clearly, any consent . . . was
simply an acquiescence to a claim of lawful authority." Nonetheless,
the district court found that Strickland's consent to the search was
voluntary and thus did not suppress the evidence.
Our review of Leon Strickland's claim, which is essentially a fac-
tual challenge, is for clear error. See Anderson v. Bessemer City, 470
U.S. 564, 573-74 (1985); United States v. Lattimore, 87 F.3d 647, 650
(4th Cir. 1996) (en banc).
The historical facts themselves are not disputed. When officers
sought, at approximately 6:30 a.m. on March 30, 1999, to arrest Leon
Strickland pursuant to an arrest warrant, they were unable to arouse
17
Strickland from his bed, despite their pounding on the front door and
on the outside of Strickland's mobile home. After repeated efforts, the
officers broke open the door and entered, one officer going to the
right and handcuffing Leon Strickland's wife, Teresa, and the other
going to the left and handcuffing Leon Strickland. After the two were
brought from their bedrooms to the living room and seated, Leon was
read his Miranda rights. Teresa was told that she was not under arrest
and that cuffing her was for the safety of all present. One of the offi-
cers asked Leon whether he "ha[d] any weapons in the residence,"
whether there were "any guns in the residence." He pointed to the
bedroom, and the officers recovered several firearms that were
located in the closet and under the bed. The officers then asked Leon
whether there were any more controlled substances (other than the
marijuana that they had discovered on the counter when they entered
the home), and Leon said no. When one officer asked,"Do you mind
us looking?", Leon said that the officers could search the trailer. To
assist, he provided them with the location of the key to the safe.
Teresa also gave her consent to the search. During their search, the
officers recovered cocaine.
On these facts, the district court found that the officers' entry into
the trailer was legal, and that their initial protective sweep of the
trailer to protect the safety of the officers was valid under Maryland
v. Buie, 494 U.S. 325 (1990). The court also found that the seizure
of marijuana located on the counter in plain view was legal. Finally,
the court found that the more detailed search of the mobile home, dur-
ing which cocaine was discovered, was conducted pursuant to the vol-
untary consent of both Leon Strickland and his wife. Leon challenges
only the voluntariness of this consent in the context of the circum-
stances.
Other than the force required to effect his arrest, Leon can point to
no fact of coercion that rendered his consent involuntary. The officers
used force to enter, to make the arrest, and to secure the premises,
including handcuffing Leon. The evidence indicates, however, that
they accomplished their task in a most professional manner. For
example, when they handcuffed Teresa, they advised her that she was
not under arrest and that the handcuffs were "just procedural." They
offered to permit Teresa to have someone pick up her child to avoid
the emotional stress of the situation, an offer that Teresa accepted.
18
The officers also brought a blanket to Leon after he complained of
being cold, as he was wearing only his underwear. Although these
accommodations were not required, they evidence a situation in
which will could be freely exercised. Indeed, neither Leon nor Teresa
complained during the arrest and the subsequent searches about any
overbearing conduct.
Accordingly, we conclude that the district court did not err in find-
ing the consent given by Leon and Teresa Strickland to be voluntary.
IV
Marshall Strickland contends that the Double Jeopardy Clause bars
his retrial in this case after his first trial ended in a mistrial. Pursuant
to the first indictment in this case, which named only four defendants,
the trial of Marshall Strickland alone commenced on February 1,
1999. At that trial, Marshall Strickland's theory was that he was serv-
ing as a government informant during the drug transactions at issue.
Despite several requests that he made before trial for records of his
activities as an informant, the government did not produce any. It also
did not acknowledge that any existed until after a trial had begun and
Strickland's counsel had already made representations to the jury that
no such records existed. When a witness acknowledged their exis-
tence, Strickland moved for a mistrial, and the district court granted
the motion. Strickland then filed a motion to dismiss the indictment
against him on double jeopardy grounds, a motion that the district
court denied.
On appeal, Marshall Strickland does not challenge the general prin-
ciple that he cannot claim double jeopardy when he is given a second
trial pursuant to his own motion. See United States v. Ham, 58 F.3d
78, 83 (4th Cir. 1995). Rather, he argues that the circumstances in this
case fall within an exception to the general rule, as stated in Oregon
v. Kennedy, 456 U.S. 667 (1982), which held that "[o]nly where the
governmental conduct in question is intended to`goad' the defendant
into moving for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded and aborting the first
on his own motion." Id. at 676; see also United States v. Johnson, 55
F.3d 976, 978 (4th Cir. 1995). Our review of the record, however,
reveals no evidence that the prosecutor's conduct was deliberate and
19
intended to provoke a mistrial. See Kennedy, 456 U.S. at 676 (empha-
sizing that the prosecutor must intend to provoke a mistrial). The dis-
trict court was able to assess the prosecutor's demeanor when she
offered her explanation for failing to provide the evidence, and the
court made the factual finding that the prosecutor had not acted in bad
faith, which we must accept unless such finding is clearly erroneous.
See Johnson, 55 F.3d at 978. Moreover, as the government points out,
whether the failure to disclose the evidence constituted a Brady viola-
tion was far from clear; it certainly was not egregious. The transcript
reveals that the prosecutor herself was clearly surprised by her wit-
ness's reference to reports, and she promptly suggested having the
matter clarified by further questioning of the witness. This evidence
alone supports the district court's conclusion that the government did
not act deliberately to goad the defendant by intentionally concealing
discoverable materials.
Accordingly, we affirm the district court's rejection of Marshall
Strickland's double jeopardy claim.
V
Mitchell Kelly Chavis and Robert "Punch" Strickland contend that
the district court abused its discretion in denying their motions to
sever their cases from those of the other defendants. They argue that
the magnitude of the evidence against them was small in comparison
to that against the others, and that the jury would have difficulty in
distinguishing among the various defendants.
Generally, "individuals indicted together should be tried together."
United States v. Brugman, 655 F.2d 540, 542 (4th Cir. 1981). And
defendants may be charged with the same indictment if they are
alleged to have "participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or
offenses." Fed. R. Crim. P. 8(b). It is not an abuse of discretion, there-
fore, to follow this general rule of trying together those indicted
together unless the moving defendant is able to show prejudice. See
United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).
While the jury did hear a substantial amount of evidence directed
specifically against other members of the conspiracy, there was ample
20
evidence, as we indicate below, directed specifically to Marshall
Kelly Chavis and Robert "Punch" Strickland to support their individ-
ual convictions. And there is no evidence that the jury had difficulty
distinguishing between the defendants. The district court instructed
the jury to consider each defendant separately, and the prosecutor out-
lined separately the evidence against each defendant in closing argu-
ment. "A defendant is not entitled to severance merely because
separate trials would more likely result in acquittal, or because the
evidence against one defendant is not as strong as that against the
other." Akinkoye, 185 F.3d at 197 (citation omitted).
In short, these defendants have simply not demonstrated the preju-
dice required to justify reversing the district court's ruling.
VI
Eugene Strickland, Tiffany Graham, Patricia McGirt, Mickey
Strickland, Mitchell Kelly Chavis, Robert "Punch" Strickland, and
Travis Strickland challenge the sufficiency of evidence of conspiracy
upon which the jury's verdicts were based. Their arguments center
principally around the contentions that (1) each defendant's connec-
tion with the conspiracy was too attenuated, and (2) rather than prov-
ing a single, unified conspiracy, the government actually proved
multiple conspiracies.
To prove a conspiracy under 21 U.S.C. § 846, the government must
prove (1) an agreement between two or more persons to engage in
conduct that violates a federal drug law, (2) the defendant's knowl-
edge of the conspiracy, and (3) the defendant's knowing and volun-
tary participation in the conspiracy. See United States v. Wilson, 135
F.3d 291, 306 (4th Cir. 1998). When reviewing the evidence that
resulted in a conviction, we take the evidence in the light most favor-
able to the government to determine whether the jury's verdict was
supported by substantial evidence. See Glasser v. United States, 315
U.S. 60, 80 (1942). Once a conspiracy has been proved, the evidence
need only establish a slight connection between any given defendant
and the conspiracy to support conviction. See United States v. Brooks,
957 F.2d 1138, 1147 (4th Cir. 1992). Indeed, a defendant need not
have knowledge of all his co-conspirators, or of all of the details of
the conspiracy, and he may be convicted despite having played only
21
a minor role. See United States v. Burgos, 94 F.3d 849, 861 (4th Cir.
1996) (en banc).
Our review of the record reveals ample evidence to support the
jury's convictions against these defendants. Witnesses identified
Eugene Strickland and Marshall Strickland as the suppliers of those
defendants who sold cocaine at "Deep Curve" on State Route 130 in
Robeson County, at "Mickey's Place," and at Eugene Strickland's res-
idence. The witnesses described open-air drug markets at these loca-
tions where customers could drive up, negotiate the purchase, and
complete the transaction within minutes. Mickey Strickland, Mitchell
Kelly Chavis, Robert "Punch" Strickland, and Travis Strickland were
each identified by witnesses as cocaine sellers at these open-air drug
markets. Tiffany Graham was identified by two witnesses as a
cocaine supplier to Eugene and Marshall Strickland. Patricia McGirt's
participation involved assisting other members in the conspiracy. She
went with other conspirators to obtain drugs from Florida and told
them that it was easy to do. She made her residence available to
Eugene Strickland on more than one occasion to sell drugs. Indeed,
evidence was also presented that McGirt herself had sold cocaine.
Eugene Strickland contends additionally that the government did
not prove a single, unified conspiracy, but rather actually proved mul-
tiple conspiracies. See generally United States v. Leavis, 853 F.2d
215, 218 (4th Cir. 1988). "Whether there is a single conspiracy or
multiple conspiracies depends upon the overlap of key actors, meth-
ods, and goals." Id. Eugene, however, has failed to demonstrate that
the jury's finding of a single conspiracy was unreasonable or irratio-
nal. There was evidence that tied him to purchases of large quantities
of cocaine and crack cocaine for the purposes of supplying street level
drug dealing throughout the period of the conspiracy. The facts estab-
lish not only constancy of the locations of operation, but also of the
methods used and most of the personnel involved. The evidence
clearly supported a finding that Eugene Strickland was involved in a
single, overall venture extending over a long period of time to deal
in drugs. Cf. United States v. Bowens, 224 F.3d 302, 308 (4th Cir.
2000) (holding that it was not error for the district court to refuse to
instruct the jury on multiple conspiracies where the evidence sup-
ported a single conspiracy).
22
VII
Leon Strickland contends that the district court abused its discre-
tion in admitting in evidence marijuana that was seized at his mobile
home when he was arrested. He contends that he was not charged
with distributing marijuana and that the marijuana was therefore both
irrelevant and prejudicial and should have been excluded under Fed-
eral Rule of Evidence 403.
While the evidence of marijuana was not directly relevant to
Leon's charges of cocaine dealing, it was seized from his mobile
home when he was arrested, and certainly could have been consid-
ered, as are guns, as evidence to support his involvement generally in
the "drug trade." Cf. United States v. Ward, 171 F.3d 188, 195 (4th
Cir. 1999). If this were a case where the evidence of cocaine traffick-
ing was marginal or doubtful, Leon Strickland's argument might have
carried greater weight. But in the context of the overwhelming evi-
dence that Leon Strickland dealt in large amounts of cocaine and
crack cocaine over many years, there can be no doubt that the admis-
sion of evidence that Leon Strickland was also involved in a small
amount of marijuana was not prejudicial.
VIII
Emily Charity Chavis contends that her due process rights were
violated by misstatements of the prosecutor. During closing argument,
the prosecutor recited the evidence against each defendant, and when
the evidence was summarized against her, the prosecutor stated that
a witness had stated Chavis was selling cocaine from Eugene Strick-
land's trailer. The evidence referred to actually showed that Chavis
was "around Eugene maybe when he was doing his deals" and that
"most of the time Eugene maybe would give her his money."
The government contends that by taking the money from Eugene
during the course of transactions, Chavis was participating in the
sales. Additionally, the government points to the fact that evidence,
other than that the testimony referenced by the prosecutor, indicated
that Chavis sold cocaine at Eugene Strickland's trailer.
23
Chavis raised a timely objection, which the district court overruled.
Accordingly, our review is for abuse of discretion.
If the prosecutor's statements were in fact misstatements, a point
that is not certain, there is no indication that the remarks prejudiced
Chavis. First, Chavis objected to the statements, highlighting her chal-
lenge before the jury and permitting the jury to consider the evidence
that they heard. Second, there was plenty of evidence that Chavis sold
cocaine generally. Third, the challenged statements were brief. And
finally, there is no indication that the prosecutor was deliberately
attempting to mischaracterize the evidence. Accordingly, we reject
Chavis' challenge based on this alleged misconduct.
IX
Mickey Strickland contends that because he was a paid informant
and confidential source of information during a portion of the conspir-
acy, he could not have been found guilty of conspiracy. Correspond-
ingly, he also argues that the district court improperly denied him the
public authority defense.
It is well settled, of course, that government agents participating in
"sting" operations are not part of the conspiracy. See United States v.
Hayes, 775 F.2d 1279, 1283 (4th Cir. 1985); see also Fed. R. Crim.
P. 12.3. We have reviewed the record, however, and have found no
evidence that Mickey Strickland was acting in such a capacity with
regard to the transactions at issue in this case. Indeed, the evidence
overwhelmingly showed the opposite -- that Mickey Strickland was
an active, bona fide participant in the conspiracy.
We also reject Strickland's claim that the district court improperly
precluded him from raising this theory as a defense to the conspiracy
charge. We can find no indication that the district court prevented
Strickland from eliciting testimony from witnesses about his coopera-
tion. Indeed, the government itself affirmatively provided evidence of
Strickland's cooperation to some degree. Moreover, the government
contended that the evidence against Mickey Strickland was based
exclusively upon dealing that occurred during a time when he was not
cooperating. And we can find no indication in the record that Mickey
Strickland attempted to argue to the jury and was denied the argument
24
that he cooperated during the course of the conspiracy. Indeed, two
other defendants, Eugene Strickland and Marshall Strickland, claimed
a public authority defense, on which the jury was instructed pursuant
to their requests. Mickey Strickland requested no such instruction.
While the court did decline to strike testimony offered by a witness
about acts for which Strickland claims that he was immune, it did so
only because Strickland failed to notice of his intent to raise the
defense as required by Federal Rule of Criminal Procedure 12.3. The
court certainly did not preclude Strickland from testifying on his own
behalf or otherwise arguing the defense. See generally 1A Charles
Alan Wright, Federal Practice and Procedure§ 210 (3d ed. 1999).
We conclude that Strickland's arguments have no merit.
X
Tiffany Graham and Mitchell Kelly Chavis each challenge the
findings of the district court on the amounts of drugs imputed to them
for sentencing. We review these findings for clear error. See United
States v. Sampson, 140 F.3d 585, 591 (4th Cir. 1998).
Under the Sentencing Guidelines, defendant's base offense level is
determined by considering "all reasonably foreseeable acts and omis-
sions of others in furtherance of the [conspiracy]." U.S.S.G.
§ 1B1.3(a)(1)(B). If Tiffany Graham and Mitchell Kelly Chavis' sen-
tences were computed in this fashion, the amounts imputable to them
would have been far greater. The presentence report, which the dis-
trict judge accepted, held each accountable only for drugs that each
of these defendants personally distributed: 14.38 kilograms of crack
cocaine as to Tiffany Graham, and 6.237 kilograms of crack cocaine
as to Mitchell Kelly Chavis.
A review of the record indicates that these calculations were con-
servative and amply supported. With respect to Tiffany Graham, Jac-
quelin Sainvil told investigators that she supplied Graham with a total
of 14 kilograms of crack cocaine during the period from July through
October 1997, and Sandra Grice estimated that she had been with
Sainvil on 13 occasions when she supplied Graham with at least 1
kilogram of crack cocaine per occasion. Tyrone Whitehead admitted
purchasing 13.5 ounces of crack cocaine from Graham between Janu-
25
ary and February 1997. On this evidence alone, the 14.38 kilograms
calculation becomes a modest estimate.
Mitchell Kelly Chavis was involved in the conspiracy for the full
10-year period. There was specific evidence that Chavis distributed
cocaine base supplied by Eugene Strickland, Marshall Strickland, and
Leon Strickland on a daily basis at Mickey Strickland's mobile home
for a period of approximately 220 weeks. Informants told investiga-
tors that a person selling from that location could sell as much as one
ounce each day. For purposes of Chavis' calculation, the presentence
report imputed only one ounce each week, or a total of 220 ounces
(amounting to 6,237 grams). We conclude that this estimate is amply
supported.
We have also reviewed these defendants' challenge to the sentenc-
ing enhancement for use of a firearm and find it without merit.
XI
For the reasons given, we affirm the convictions and the sentences
of each of the ten defendants in this case.
AFFIRMED
MICHAEL, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in the judgment and in all but part II of the majority opin-
ion. The broad subject of part II is whether the defendants were
improperly sentenced for the drug quantities involved. On that subject
this case presents only the question of whether and under what cir-
cumstances it is plain error for the jury not to be instructed on drug
quantity. On that question I agree that all of the elements of plain
error have not been established. I write separately because this case
does not present the much more difficult question of whether and
under what circumstances it is plain error for the indictment not to
include drug quantity. Compare, e.g., United States v. Tran, 234 F.3d
798, 809 (2d Cir. 2000) (holding that the failure to include an element
of the offense in the indictment is a jurisdictional defect), with United
26
States v. Mojica-Baez, 229 F.3d 292, 310 (1st Cir. 2000) (holding that
the failure to include an element of the offense in the indictment
might not be plain error if there is sufficient evidence to establish the
missing element). I do not join the majority's discussion of this ques-
tion because, as the defendants ultimately concede, the indictment
properly charged drug quantity. This case also does not present the
question of whether drug quantity in 21 U.S.C. § 841(b) is an element
of the offense or a sentencing factor. That question will be decided
in our upcoming en banc decisions in United States v. Angle, 230 F.3d
113 (4th Cir. 2000), vacated and reh'g en banc granted (Jan. 17,
2001), and United States v. Promise, No. 99-4737, 2000 WL 774804
(4th Cir. June 16, 2000), vacated and reh'g en banc granted (Jan. 17,
2001). I recognize that the majority does not decide this second ques-
tion, but at this point I respectfully decline to join any extended dis-
cussion or characterization of the question.
27