United States v. Williams ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4258
GLENN L. WILLIAMS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4309
KENNETH RANDAL WILLIAMS,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-95-136)
Submitted: February 19, 1997
Decided: April 23, 1997
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John Louis Machado, Washington, D.C.; Douglas Wolcott Corkhill,
CALDWELL & CORKHILL, Raleigh, North Carolina, for Appel-
lants. Janice McKenzie Cole, United States Attorney, J. Frank Brad-
sher, Assistant United States Attorney, Raleigh, North Carolina,
for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Glenn Williams ("Glenn")1 and Kenneth Williams ("Kenneth")
were convicted in a joint trial of conspiracy to possess crack
cocaine
with intent to distribute, 21 U.S.C. § 846 (1994). Glenn was
sentenced
to a term of 480 months imprisonment. He appeals his conviction and
sentence and seeks release pending appeal and leave to file several
pro se supplemental briefs and amendments to the briefs. Kenneth
appeals his 188-month sentence. We grant Glenn leave to file the
sup-
plemental briefs but dismiss his bail motion as moot. We affirm
Glenn's conviction and both sentences.
From May to July 1995, Glenn Williams lived in an apartment
rented by Angel Shaw in Raleigh, North Carolina. Glenn paid Shaw
to help transport cocaine from New Jersey to Raleigh hidden inside
the spare tires of various cars. Glenn cooked the cocaine into
crack
at the apartment. Shaw's boyfriend, Alex Reynolds, also lived at
the
apartment and sold crack for Glenn at Shaw University where he was
a student. Kenneth Williams arrived from New Jersey in early June
to assist Glenn and also moved into Shaw's apartment. He subse-
quently made deliveries of crack to several street sellers. On July
6,
1995, Kenneth was arrested while attempting to make a delivery to
Khalid Green. Afterward, Shaw's apartment was searched. Five tires,
all of which had been cut, were in the bedroom occupied by Glenn
_________________________________________________________________
1 To avoid confusion we have referred to Appellants by their first
names throughout the opinion.
2
and his girlfriend. A large amount of cash, plastic bags with
cocaine
residue, a cellular phone, and a pager were also found there.
Another
cellular phone and more cash were in the bathroom. An electronic
scale and 15.9 grams of crack were in the room shared by Shaw and
Reynolds. A plastic wrapper taped with duct tape was in the kitchen
trash bin. Kenneth initially cooperated with authorities, but
eventually
decided to go to trial with Glenn. Shaw, Reynolds, and Green
entered
guilty pleas and testified at their trial.
I. Glenn Williams
Glenn first contends that plain error occurred when Detective Ray
Moss testified about a statement Kenneth made after his arrest. See
United States v. Olano, 507 U.S. 725, 734 (1993) (reversal for
error
not raised below requires error which is plain, affects substantial
rights, and seriously affects fairness, integrity, or public
reputation of
judicial proceedings). Moss used a redacted version of the
statement
in which references to Glenn were replaced with references to "an-
other individual." Glenn claims that this testimony violated his
rights
under the Confrontation Clause as articulated in United States v.
Bruton, 391 U.S. 123, 126 (1968). However, in Richardson v. Marsh,
481 U.S. 200, 211 (1987), the Supreme Court held that a non-
testifying codefendant's confession may be introduced when it has
been redacted to eliminate the defendant's name and is combined
with
a limiting instruction, even though the statement is incriminating
to
the defendant when it is linked with other evidence introduced at
trial.
It appears that no limiting instruction was given or requested in
this
case. Glenn's failure to request the instruction, together with the
over-
whelming evidence of his guilt, makes the absence of the
instruction
a harmless error. See United States v. Locklear , 24 F.3d 641, 647
(4th
Cir. 1994).
Glenn also asserts that the district court abused its discretion in
denying his motion for severance. Defendants who have been charged
in the same conspiracy should generally be tried together. United
States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992). A defendant
moving for severance must establish that actual prejudice would
result from a joint trial, not merely that he would have a better
chance
of acquittal in a separate trial. Id.3
Glenn's motion for severance focused on the possible prejudice to
him of evidence found in Angel Shaw's bedroom and during Ken-
neth's attempted delivery of 125 grams of crack to Green, evidence
which could have been introduced against him even in a separate
trial.
On appeal, he points out that Kenneth's statement would not have
been admissible in a separate trial. A non-party's statement which
is
not in furtherance of a conspiracy is inadmissible hearsay. Fed. R.
Evid. 81(d)(2). Nevertheless, Glenn has failed to show that the
joint
trial unduly prejudiced his defense. Therefore, we find that the
district
court did not abuse its discretion in denying severance.
Next, Glenn asserts that the district court committed reversible
error in allowing Green to testify, without objection, that Glenn
turned away and was silent after Green said to him at the police
sta-
tion, "We are both guilty. Face it." Glenn was in custody at the
time
and had received his Miranda2 warning. He claims that introduction
of this evidence violated his Fifth Amendment right to remain
silent,
citing principally Griffin v. California, 380 U.S. 609 (1965), and
Doyle v. Ohio, 426 U.S. 610 (1976). Griffin forbids any comment by
the prosecutor on a defendant's refusal to testify at trial. It is
not
applicable here because the government attorney did not comment on
Glenn's decision not to testify. Doyle prohibits the use of a
defen-
dant's post-arrest, post-Miranda silence for impeachment purposes.
Even though Glenn did not testify, and the evidence of Glenn's
silence in response to Green's statement was introduced in the gov-
ernment's case-in-chief, its admission was a violation of Glenn's
Fifth
Amendment right under Doyle. See United States v. Massuet , 851
F.2d 111, 113-14 (4th Cir. 1988). However, the error was harmless
beyond a reasonable doubt because the evidence against Glenn was
overwhelming. Chapman v. California, 386 U.S. 18, 24 (1967);
Williams v. Zahradnick, 632 F.2d 353, 361-62 (4th Cir. 1980).
Glenn maintains that Green's testimony that he saw Glenn strike
a crack dealer and his companion in a Bojangles restaurant during
the
time of the conspiracy should have been excluded under Fed. R.
Crim. P. 404(b). Glenn's attorney made no objection to this testi-
mony; therefore, its introduction is reviewed for plain error.
Olano,
_________________________________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
4
507 U.S. at 734. Evidence of other crimes or bad acts committed by
the defendant is excluded at trial under Rule 404(b), with certain
exceptions, but evidence of acts intrinsic to the alleged crime is
admissible. United States v. Chin, 83 F.3d 83, 87-88 (4th Cir.
1996).
Other criminal acts are intrinsic to the charged offense if they
are
inextricably intertwined with it, if they are part of a single
criminal
incident, or if the other acts are preliminary to the charged
offense.
Id.Green did not say why Glenn struck the drug dealer. However,
Green testified that the dealer sold crack in the same area where
he
did. Moreover, most of Kenneth's distributions were made at the
Bojangles restaurant where the incident took place. It is a
reasonable
inference that the incident was related to Glenn's crack operation
and
was intrinsic evidence rather than evidence of an unrelated act.
Con-
sequently, admission of Green's testimony concerning the incident
was not plain error.
Glenn claims that the district court erred in not making factual
findings or permitting Glenn to present evidence in camera with
respect to his pretrial motion to dismiss the indictment. This
argument
is without merit because Glenn did not allege in his motion that
there
were defects in the institution of the prosecution, apart from
suggest-
ing that there was insufficient evidence on which to charge him.
The
district court denied Glenn's motion, finding that such a ground
was
not appropriate for dismissal of an indictment. See Costello v.
United
States, 350 U.S. 359, 363 (1956) (indictment returned by a legally
constituted grand jury may not be challenged on ground of
inadequate
or incompetent evidence). If Glenn believed there were defects in
the
institution of the prosecution, as he now alleges, it was his
burden to
describe them to the district court. By not doing so, he waived any
defense or objection on this ground. Fed. R. Crim. P. 12(b)(1),
(f). We
therefore find that Glenn's motion to dismiss the indictment was
properly denied.
Glenn next argues that, if the alleged errors he has raised are
found
to be harmless, their cumulative effect nevertheless entitles him
to a
new trial. In fact, he has identified only one harmless error: the
admis-
sion of Green's testimony about his silence after arrest. This
harmless
error does not warrant a new trial.
5
Last, Glenn contends that he should have been held responsible
only for the 125 grams of crack which were seized from Kenneth on
July 6, 1995, and the 15 grams of crack which were seized from
Shaw's apartment on the same evening. He argues that other amounts
of crack were incorrectly attributed to him because information
about
the additional amounts came from unreliable co-defendants. The dis-
trict court's factual determination of the amount of drugs
attributable
to a defendant for sentencing purposes is reviewable for clear
error.
United States v. McDonald, 61 F.3d 248, 255 (4th Cir. 1995). When
the amount of drugs seized does not reflect the scale of the
offense,
the district court should approximate the quantity involved. USSG
§ 2D1.1, comment. (n.12).
The probation officer attributed at least 1.5 kilograms of crack to
Glenn, based on statements and testimony by Shaw, Green, and Reyn-
olds. At sentencing, the case agent testified that Shaw made five
trips
to New Jersey for the purpose of bringing back cocaine. After one
trip, Shaw saw two packages of cocaine removed from the tire which
together were the size of one kilogram of cocaine. A Jamaican named
Vindo delivered cocaine to Glenn on two occasions. Reynolds saw a
one-kilogram-size package removed from a tire delivered by Vindo.
Detective Kennon testified that the wrapper bound with duct tape
which was found in the kitchen trash would have contained a kilo-
gram of cocaine if it were full. In response, Glenn testified, but
did
not discuss the amount of crack he had distributed. Instead, he
asserted that he had been framed by Detective Kennon and that his
co-defendants were lying about him to help themselves.
In estimating the amount of crack obtainable from cocaine powder,
the sentencing court may assume that 100 grams of cocaine yield 88
grams of crack. United States v. Ricco, 52 F.3d 58, 63 (4th Cir.),
cert.
denied, ___ U.S. ___, 64 U.S.L.W. 3247 (U.S. Oct. 2, 1995) (No. 95-
5502). If Glenn transported only seven kilograms of cocaine (5
trips
by Shaw, 2 trips by Vindo), 6.2 kilograms of crack could have been
obtained. On the evidence presented, the district court did not
clearly
err in estimating that Glenn had cooked and distributed at least
1.5
kilograms of crack.
In two supplemental pro se briefs, with amendments, Glenn raises
numerous additional claims of error. He asserts that he was
arrested
6
and detained without probable cause, the indictment was flawed, the
detective lied to the grand jury and at trial, the witnesses'
testimony
was inadmissible, the prosecutor engaged in several kinds of
miscon-
duct, his attorney was ineffective, the district court wrongly
denied
his request for different appointed counsel and a continuance and
erred in not compelling disclosure of a confidential informant.
Finally, he claims that his 480-month sentence was cruel and
unusual.
Some of these claims merely amplify issues which were raised in his
main brief. The claim of ineffective assistance is not addressed
here,
because the record does not conclusively demonstrate ineffective
assistance. See United States v. Williams, 977 F.2d 866, 871 (4th
Cir.
1992) (claim of ineffective assistance not properly brought on
direct
appeal unless ineffectiveness conclusively appears in trial
record).
The other claims are without merit.
II. Kenneth Williams
Kenneth contends that the district court failed to recognize its
authority to depart downward on the grounds urged in his sentencing
memorandum and in a psychological report prepared at the court's
request. The district court made clear that it would prefer to
impose
a shorter sentence than called for under the guideline, but
ultimately
found that Kenneth's youth (he was nineteen at the time) was not a
permissible ground for departure and that there were no other
circum-
stances which warranted departure. When a court's decision not to
depart is based on a perceived lack of legal authority, its
decision is
reviewable. United States v. Hall, 977 F.2d 861, 863 (4th Cir.
1992).
The psychologist suggested that, because of his youth, non-violent
conduct, and lack of vocational skills, Kenneth would benefit from
an
environment which could provide structure, discipline, and guidance
as well as the opportunity to learn vocational skills, and noted
that he
appeared motivated to make positive changes in his life. A sentence
below the guideline range at the Federal Bureau of Prisons'
Intensive
Confinement Center was recommended; however, participants may
not have a sentence of more than 12-30 months. Kenneth's guideline
range was 188-235 months. At sentencing, defense counsel stressed
the psychologist's finding that Kenneth was socially immature and
that he desired approval from an older male. He sought to portray
him
as unable to resist Glenn's influence, an argument the court
rejected.
7
On appeal, Kenneth concedes that youth, USSG § 5H1.1, p.s., lack
of youthful guidance, USSG § 5H1.12, p.s., lack of education and
vocational skills, USSG § 5H1.2, p.s., and mental and emotional
con-
dition, USSG § 5H1.3, p.s., are not factors which would support a
departure in a usual case. However, he claims that the combination
of
these factors, together with the psychologist's recommendation,
took
the case outside the heartland of ordinary cases and gave the court
a
basis for departing. See United States v. Rybicki, 96 F.3d 754, 758
(4th Cir. 1996) (discouraged factors not ordinarily relevant but
may
be basis for departure in exceptional cases). The district court
did not
find that youth or any of the other factors were present to an
excep-
tional degree. Therefore, the court correctly held that it lacked
author-
ity to impose a sentence outside the guideline range.
Kenneth also contends that he should have received a 2-level
decrease under USSG § 2D1.1(b)(4) because he met the criteria set
out in USSG § 5C1.2. The issue was whether he had fulfilled the
last
requirement, that he truthfully provide to the government all
informa-
tion and evidence he had about the offense.
Detective Kennon testified at sentencing that the information Ken-
neth provided in two interviews after his arrest (before he decided
to
go to trial) was accurate but incomplete. He testified that Kenneth
minimized his involvement by saying that he made only three or four
deliveries of crack in the month that he lived with Glenn at Shaw's
apartment, a month in which at least five kilograms of crack were
sold. His statement was contradicted by Green, who said that he
received crack several times from Kenneth and that Kenneth also
made several deliveries to two others. Kenneth also failed to
mention
Angel Shaw's involvement in bringing cocaine from New Jersey,
although Reynolds testified at trial that on one occasion he
traveled
to New Jersey with Shaw and Kenneth in a rented van which Shaw
drove back to Raleigh after Glenn loaded cocaine into it. Kenneth
argues that the government did not prove he knew Shaw was trans-
porting cocaine for Glenn. However, because Kenneth's only purpose
for coming to Raleigh was to help Glenn sell crack, the court was
not
clearly erroneous in finding, implicitly, that Kenneth knew Shaw
was
transporting cocaine for Glenn. Consequently, the district court
also
did not clearly err in finding that Kenneth had not told the police
all
he knew about the conspiracy.
8
Finally, we find that the district court did not clearly err when
it
summarily denied Kenneth's request for an acceptance of
responsibil-
ity reduction. The adjustment is available to a defendant who
truth-
fully admits all his criminal conduct, not to one who minimizes his
conduct. USSG § 3E1.1, comment. (n.1(a)). The adjustment may be
given to a defendant who goes to trial only in rare cases where the
defendant intends to preserve issues unrelated to factual guilt.
USSG
§ 3E1.1, comment. (n.2). This is not such a case.
Accordingly, we grant Glenn Williams leave to file his supplemen-
tal briefs and amendments and affirm his conviction and sentence.
We
dismiss as moot his motion for release pending appeal. Kenneth Wil-
liams' sentence is affirmed. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
9