United States v. Lipford ( 2005 )

Filed: March 14, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-4811(L)
(CR-97-40008-R)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VICTOR JERMAINE LIPFORD,
Defendant - Appellant.
O R D E R
The court amends its opinion filed February 7, 2000, as
follows:
On page 4, Section A, second paragraph, line 4 -- substitute
the name “Cunningham” for the name “Lipford.”
For the Court
/s/ Patricia S. Connor
____________________________
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4811
VICTOR JERMAINE LIPFORD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 97-4838
VICTOR JERMAINE LIPFORD,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4855
MARLOWE ANDRE FARMER, a/k/a
Andre Womack, a/k/a Dred,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4716
CHRISTOPHER LEE WOMACK, a/k/a
Chris,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-97-40008-R)
Argued: October 29, 1999
Decided: February 7, 2000
Before MOTZ, TRAXLER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge King wrote the opinion, in which Judge Motz and Judge
Traxler joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Hilton Johnson, Jr., GRAY, NEWELL & JOHN-
SON, Greensboro, North Carolina, for Appellants. Thomas Ernest
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee. ON BRIEF: Walter T. Johnson, Jr., Greens-
boro, North Carolina, for Appellant Womack; Rickey G. Young,
LAW OFFICE OF RICKEY G. YOUNG, Martinsville, Virginia, for
Appellant Farmer. Robert P. Crouch, Jr., United States Attorney,
Donald L. Wolthius, Assistant United States Attorney, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
_________________________________________________________________
OPINION
KING, Circuit Judge:
We consider here the consolidated appeals of Victor J. Lipford,
Marlowe A. Farmer, and Christopher L. Womack, each of whom was
convicted on drug-related charges following a joint trial in the West-
2
ern District of Virginia. The parties have raised numerous assertions
of error on appeal. However, we hold that only one aspect of the dis-
trict court's proceedings -- the judgment of acquittal on Lipford's
conviction under 18 U.S.C. § 924(c)(1) -- requires reversal, a holding
that also mandates that Lipford be resentenced. We reject the remain-
ing claims of error, and we affirm the district court in all other
respects.
I.
Beginning no later than the fall of 1995 and continuing through
January 1997, Lipford, Farmer, and Womack (collectively, "the
appellants") were members of a drug trafficking organization that dis-
tributed cocaine from two trailer homes in Pittsylvania County, Vir-
ginia. At the first trailer home, in the Malmaison section of Danville,
the appellants sold cocaine themselves and distributed cocaine
through several street dealers, including Clifton Powell, Anthony
Hood, Lamont Hood, Thomas Wiles, Roy Hood, and Tony Kirby.
The second trailer home, Farmer's residence at 321 Moffett Street in
Danville, also served as an outlet for the organization's drug activi-
ties. Farmer sold cocaine from his Moffett Street residence, as did
Christopher Womack; the pair were assisted by Roy and Reginald
("Reggie") Womack.
On January 21, 1997, a grand jury in the Western District of Vir-
ginia returned a forty-five count indictment against the appellants and
others.1 Following a two-week jury trial in June 1997, the appellants
were each convicted of participating in a drug conspiracy, in violation
of 21 U.S.C. § 846. In addition, Farmer was convicted on two counts
of possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1). Lipford was convicted on five counts of posses-
_________________________________________________________________
1 The indictment charged several co-defendants, including Reggie
Womack, Roy Womack, Gary Elmore, Anthony Hood, Lamont Hood,
Roy Hood, Tony Kirby, Richard Logan, Clifton Powell, Marcelous
Stone, Thomas Wiles, and "Fnu Lnu" (an acronym for "First Name
Unknown, Last Name Unknown," commonly used to refer to "John Doe"
defendants). Most of the other defendants pleaded guilty on selected
counts, but Reggie Womack, Roy Womack, and Fnu Lnu were fugitives
as of the date the appellants were sentenced.
3
sion with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1), and one count of violating 18 U.S.C. § 924(c)(1) -- car-
rying a firearm during and in relation to a drug trafficking offense.
Following the verdict, the trial court granted Lipford's motion for
judgment of acquittal on the firearm conviction.
A.
Lipford's firearm conviction under 18 U.S.C. § 924(c)(1) was
based upon a series of transactions with a government informant,
Larry Cunningham, and we summarize below the evidence relevant
to that conviction. On May 22, 1996, Cunningham, acting at the
direction of law enforcement officials,2 contacted Lipford by phone,
made arrangements to purchase a quantity of drugs, and then drove
to Malmaison to complete the transaction with Lipford. As they were
conducting the drug deal, Lipford asked Cunningham whether he
knew anybody who wanted to purchase a firearm --"[a] .25 auto-
matic." J.A. 853. Cunningham responded that he did know of some-
one (himself), but that he was not in a position to buy a firearm that
day. Id. Cunningham then bought ten grams of cocaine base ("crack")
from Lipford, leaving open the possibility of other drug and firearms
deals with him in the future.
The next day, May 23, 1996, Cunningham -- again acting at the
behest of law enforcement officials -- drove to Lipford's trailer
intending to purchase both crack cocaine and the .25 caliber pistol
they had discussed the day before. The DEA supplied Cunningham with
$650 in cash to purchase drugs, and ATF provided $200 to purchase
the firearm. Cunningham bought eleven grams of crack cocaine from
Lipford for $700. Although Lipford and Cunningham discussed the
.25 caliber pistol during the transaction, Cunningham did not pur-
chase the firearm at that time and returned $150 in cash to the police.
_________________________________________________________________
2 Cunningham was compensated by, inter alia, the Drug Enforcement
Administration ("DEA"), the Bureau of Alcohol, Tobacco and Firearms
("ATF"), the Pittsylvania County Sheriff's Office ("county sheriff's
office"), and the Danville Police Department ("Danville police"). We
refer to representatives of these organizations collectively as "law
enforcement officials." Each of these law enforcement organizations, at
various times, also funded Cunningham's purchases of contraband.
4
In the days following that transaction -- between May 23, 1996
and May 31, 1996 -- Cunningham attempted to arrange another deal
with Lipford. Cunningham spoke to Lipford by phone several times
about purchasing both drugs and the .25 caliber pistol, and they ulti-
mately agreed to meet on May 31, 1996, to complete the drug and
firearm transactions.
On May 31, 1996, Cunningham was issued $650 in cash from the
DEA for the purchase of drugs and $140 from the county sheriff's
office for the purchase of a firearm. Cunningham then drove to the
Malmaison area, met Lipford, and purchased both crack and the .25
caliber "Raven" pistol from Lipford. Lipford first handed Cunning-
ham the handgun, then gave him thirteen and one-half grams of crack.
Thereafter, Cunningham passed Lipford $750, then paid Lipford the
remaining $40, the balance due for the firearm. 3
After the Government presented this evidence at trial, the district
court charged the jury, without objection, on the"in relation to"
requirement:
The government is required to prove that the defendant
actively employed the weapon or that it was carried during
and in relation to the drug offense charged.
***
However, you must be convinced beyond a reasonable
doubt that the firearm played a role in or facilitated the com-
mission of the drug offense. In other words, you must find
the firearm was an integral part of the offense charged, the
offense which is alleged in count forty-one.4
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3 These payments represented the $690 cost of the crack and the $100
cost of the .25 caliber pistol.
4 Count forty-one charged Lipford and Reggie Womack of possession
with intent to distribute (or distribution) of crack on May 31, 1996 -- the
transaction with Cunningham discussed supra at 5. The jury also con-
victed Lipford on this count.
5
J.A. 1866. Based on the evidence and the instructions, the jury con-
victed Lipford on count forty-two of the indictment, the § 924(c)(1)
charge for carrying a firearm on May 31, 1996, during and in relation
to a drug trafficking crime.
B.
On November 21, 1996, when police officers executed a search
warrant at 321 Moffett Street ("Farmer's home"), Farmer fired shots
at the officers, hitting one of them. The district court ultimately
admitted evidence of this shooting at trial (collectively the "shooting
evidence"), and because this evidentiary ruling forms the basis of sev-
eral assertions of error on appeal, we summarize the trial court pro-
ceedings relating to the admission of the shooting evidence.
Before trial, Farmer moved in limine to exclude any evidence of
this shooting; in response, the Government sought to demonstrate the
relevance of the shooting evidence prior to its introduction at trial.
However, when the Government initially attempted to explain the rel-
evance of the shooting evidence,5 the district court determined that the
Government had failed to articulate a sufficient nexus between the
drug violations and the shooting. Therefore, the court initially granted
Farmer's motion in limine, characterizing Farmer's actions as the
"simple act of shooting a police officer" with no connection to the
drug trafficking conspiracy. The court also observed that any collat-
eral relevance of the evidence was outweighed by its potential to be
improperly prejudicial.
Immediately after the court related its initial decision from the
bench, and before the court proceeded to the next pre-trial issue at the
hearing, the Government sought permission to supplement the record
with respect to the relevance of the shooting evidence. The Govern-
ment then asserted that it had a witness who, while waiting to pur-
chase cocaine a few days before the shooting of the police officer,
overheard Farmer and co-defendant Roy Womack agree that if police
_________________________________________________________________
5 The Government contended that drug transactions had taken place in
Farmer's home, that the shooting was within the time frame covered by
the conspiracy, and that the shooting was an overt act in furtherance of
the conspiracy.
6
raided the house, Farmer and Womack would shoot the officers.
Based on this representation, the court withdrew its initial ruling,
instructed the Government not to mention the shooting evidence dur-
ing its opening statement to the jury, and advised the parties that it
would hear from the Government's witness before ruling on this
issue.
The next morning, outside the presence of the jury, the Govern-
ment presented the testimony of witness Terence Burton on the issue
raised by the motion in limine. Burton testified that, around the mid-
dle of September 1996 (before the shooting on November 21, 1996),
he went to Farmer's home to purchase drugs from Roy Womack. On
that occasion, Womack wanted $200 for seven grams of crack, but
Burton only carried $195. When Womack refused to sell at the lower
price, Burton asked to speak with Farmer, who agreed to sell the
crack for $195. Womack subsequently left the room to retrieve the
drugs, and when he returned, Farmer asked why Womack had to
leave the room. Womack replied that he was trying to be careful (by
keeping the drugs in another room) and that a "bust" could come at
any time. Womack added that if a bust "came down," they (Roy
Womack and Farmer) had to be prepared to "take`em out, whoever
it is." J.A. 241. Farmer replied, "Yeah, that's what it be; that's the
way it'll be." J.A. 242.
After hearing and considering Burton's testimony, the court found
the required nexus between the shooting of the police officer and the
drug conspiracy. The court ruled that statements by Womack and Far-
mer about "tak[ing] `em out," and the evidence of the shooting of the
police officer during execution of the search warrant at Farmer's
home, were admissible to prove the existence and scope of the drug
conspiracy. The court accordingly denied Farmer's motion in limine
to exclude the shooting evidence.6
_________________________________________________________________
6 Burton's testimony before the jury was arguably at minor variance
with his earlier testimony:
Q: [W]ould you please tell the jury what it was that you
heard [Roy Womack and Farmer] say during this con-
versation?
Burton: Well, I heard, Roy was saying that if anything hopped
off or came off about coming in or something going
down, that they had too much to lose; they couldn't
7
C.
Following the guilty verdicts, and after the district court's entry of
judgment of acquittal on Lipford's § 924(c)(1) conviction, the court
sentenced Farmer to life imprisonment, Womack to 240 months of
imprisonment, and Lipford to 168 months of imprisonment. Each of
the appellants appeals his convictions and sentences, and the Govern-
ment cross-appeals the judgment of acquittal entered on Lipford's
§ 924(c)(1) conviction. We possess jurisdiction under 21 U.S.C.
§ 1291 and 18 U.S.C. § 3731. See United States v. Mitchell, 177 F.3d
236, 238 (4th Cir. 1999) ("[A]ppeals by the Government from . . .
judgments of acquittal are authorized by § 3731") (quoting United
States v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977)).
II.
We review de novo the district court's entry of a judgment of
acquittal. United States v. Harris, 31 F.3d 153, 156 (4th Cir. 1994).
In reviewing that judgment, we must determine whether the evidence,
viewed in the light most favorable to the Government, could have per-
mitted a rational jury to convict the defendant on that charge. Id.
In this case, the jury convicted Lipford on the firearm charge under
18 U.S.C. § 924(c)(1), which required that the Government prove: (1)
Lipford used or carried a firearm (2) during and in relation to (3) a
drug trafficking offense. Only the "in relation to" requirement is con-
tested on appeal, because it was that requirement that the district court
found unfulfilled in entering the judgment of acquittal. Relying upon
United States v. Wilson, 115 F.3d 1185 (4th Cir. 1997), a decision
premised upon facts distinguishable from those before us here, the
_________________________________________________________________
afford to take a loss.
***
That's when Andre [Farmer] said, he agreed, and he
said, "Yeah, we sure couldn't, and if anything hopped
off, we'd do what we had to do, take the [expletive
deleted] out if necessary, regardless of whoever it is."
J.A. 1239-40.
8
district court found the "in relation to" requirement lacking, determin-
ing that: (1) the sale of the firearm was an independent transaction
coincidentally occurring at the same time as the drug offense; and (2)
the sale of the firearm did not facilitate the drug transaction.
To meet the "in relation to" requirement, the Government must
prove that the firearm has "some purpose or effect with respect to the
drug trafficking crime[.] . . . [T]he gun at least must `facilitate or have
the potential of facilitating,' the drug trafficking offense." Smith v.
United States, 508 U.S. 223, 237 (1993) (quoting United States v.
Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). On one hand, the pres-
ence of the firearm cannot be "the result of accident or coincidence."
United States v. Mitchell, 104 F.3d 649, 654 (4th Cir. 1997) (quoting
Smith, 508 U.S. at 238). On the other hand, it is enough for
§ 924(c)(1) purposes if the firearm was present for protection or to
embolden the actor. Mitchell, 104 F.3d at 654.
In a similar vein, cases have liberally construed the "in relation to"
requirement, though mandating that the presence of the firearm can-
not be spontaneous or coincidental. For example, in United States v.
Molina, 102 F.3d 928 (7th Cir. 1996), the Seventh Circuit affirmed
a conviction under § 924(c)(1) where the only evidence supporting
the "in relation to" requirement was that the police found drugs and
a firearm in the same compartment. In so holding, the court noted:
In establishing whether a gun, found to have been carried,
was carried in relation to a drug trafficking crime, if the
drugs and gun are together in the same place it is nearly an
inescapable conclusion that they satisfy the in relation to
prong of § 924(c)(1). The relation between the firearm and
the drugs -- which is, after all, the core of the offense --
is best established by their relation to each other, and not by
the distance between owner and gun at the moment of arrest.
Id. at 932 (emphasis in original). Similarly, in United States v. Turner,
157 F.3d 552 (8th Cir. 1998), the court affirmed a§ 924(c)(1) convic-
tion where the police officers stopped the defendant in his car and
found a pistol, a loaded pistol clip, and drugs, all inside a bag on the
passenger side of the vehicle. Based on the position of the pistol
directly next to the drugs, and that a loaded pistol clip was also in the
9
same bag, the Eighth Circuit held that a jury could have inferred that
"the gun served to facilitate the [drug trafficking offense] by protect-
ing not only [the defendant], but also the drugs," thereby satisfying
the "in relation to" requirement. Id. at 556. These cases illustrate the
broad construction that has been afforded the "in relation to" require-
ment.
The Government asserts that the presence of the handgun here had
at least the potential to facilitate the drug transaction between Lipford
and Cunningham, and that the judgment of acquittal should therefore
be reversed. Put simply, the Government claims that the sale of a fire-
arm by a drug dealer always has the potential to facilitate the sale of
drugs because a buyer might be more apt to purchase drugs from a
drug source if he knows that he can also obtain a firearm from that
source. The Government further argues that it is irrelevant whether
Cunningham was actually influenced to purchase drugs by the option
also to purchase the .25 caliber pistol, because here the potential to
influence drug sales existed.
We agree that the judgment of acquittal must be reversed, but we
base our decision on a rationale slightly different than that asserted by
the Government. We recognize that, in the nebulous drug trade under-
world, the line between purchaser and salesman is often blurred; in
other words, a purchaser must often sell himself as a good customer
to convince a drug source to take the risk of selling drugs. In order
to persuade a drug source into taking that risk, a drug purchaser can
often "sweeten the pot," offering to purchase not only drugs, but other
illegal goods as well. Where that other illegal good is a firearm, that
gun's involvement in the drug transaction is not"spontaneous" or "co-
incidental;" on the contrary, the firearm facilitates the drug transac-
tion, making it possible for the drug buyer to get the drug seller to
take the risks inherent in selling contraband.
We are confident that a rational jury presented with the evidence
here could have properly concluded that Lipford's participation in the
May 31, 1996, drug transaction was facilitated by the firearm transac-
tion. Before the May 31, 1996 transactions, there were extended
negotiations between Cunningham and Lipford during which the sale
of drugs was consistently tied to the sale of a firearm. Lipford was the
first to suggest a firearms deal at their meeting on May 22, 1996, and,
10
significantly, Lipford made this offer before Cunningham bought
drugs directly from him. To this offer, Cunningham responded that he
would be interested in purchasing both drugs and a firearm sometime
in the future; then, at their next meeting, on May 23, Cunningham
made clear that he intended to purchase a firearm at some point. In
the negotiations leading to the crucial drug and firearm transactions
on May 31, Cunningham repeatedly requested that Lipford sell him
both drugs and a firearm, and Lipford ultimately did just that. Under
these circumstances, we conclude that the handgun in question had at
least the potential of attracting Lipford into making the sale of drugs.
This is a circumstance sufficient to meet the "in relation to" require-
ment of the § 924(c)(1) charge.
In so holding, we recognize and reaffirm that there may be circum-
stances in which the possession of a firearm during a drug transaction
can indeed be coincidental -- thus failing to meet the "in relation to"
requirement. See Wilson, 115 F.3d at 1185. In Wilson, a government
informant went to a drug source with the specific intent of purchasing
marijuana, and the drug source offered to sell him"as much mari-
juana as he needed." Id. at 1191. However, during the negotiations
over the sale of drugs, the drug source spontaneously removed an
unloaded rifle from a box in his closet and offered to sell it to the
informant. Id. The informant then chose to purchase the rifle, but not
the drugs. In that case, the firearm did not enter the picture until the
last moment, and there was no evidence that the presence of the rifle
influenced either the drug source or the buyer. Based on those facts,
we found that the "sale of the firearm neither facilitated nor had the
potential of facilitating [the] marijuana sales[,]" and because the sale
of the firearm was "a completely independent, yet contemporaneous
action[,]" we held that the district court had erred in denying the
defendant's motion for judgment of acquittal. Id. at 1191-92.
However, the facts in Wilson stand in contrast to those here.7
_________________________________________________________________
7 Significantly, the firearm at issue in Wilson was a long gun, a rifle,
which is more of a sport firearm than is a handgun. By contrast, the fire-
arm here was a .25 caliber pistol, i.e., a small, easily concealable hand-
gun. When a gun is involved in criminal activity, it is far more likely to
be a handgun than a rifle. See, e.g. , Department of Justice, Bureau of Jus-
11
Among other things, in this case, each conversation between Lipford
and Cunningham leading to the drug transaction on May 31, 1996,
concerned the sale of both drugs and firearms. In this context, the gun
transaction had at least the potential of attracting Lipford into selling
drugs, and we believe that the jury could have rationally determined
that the firearm had at least the potential of facilitating the drug trans-
action at issue.8 We therefore reverse the district court's judgment of
acquittal on Farmer's conviction under 18 U.S.C.§ 924(c)(1).
III.
Each appellant challenges the guilt phase proceedings, and they
raise a number of different arguments in this respect. We review their
arguments in turn.
A.
The appellants each claim reversible error in the admission of the
evidence concerning the shooting of the police officer on November
_________________________________________________________________
tice Statistics, Selected Findings, Firearms, crime, and criminal justice:
Guns Used in Crime, at 2 (July 1995) ("Of all firearm-related crime
reported to the survey, 86% involved handguns. The FBI's Supplemental
Homicide Reports show that 57% of all murders in 1993 were committed
with handguns, 3% with rifles, 5% with shotguns, and 5% with firearms
where the type was unknown."). In addition, during the discussion about
drugs, the drug dealer in Wilson had the rifle stored in a box inside his
closet, while, in this case, Lipford actually carried the handgun during
the drug transaction. These facts -- the type and location of the firearm
-- also distinguish Wilson from this case: It is more likely that the hand-
gun here would be carried "in relation to" the drug transaction than the
rifle in Wilson.
8 Although we reverse, we note our rejection of the Government's argu-
ment on this issue. While a jury could find the firearm sale potentially
facilitated Lipford's participation in the drug sale, it could not have ratio-
nally found that the firearm transaction had the potential to facilitate
Cunningham's participation in the drug transaction. Cunningham, the
drug buyer, was a government agent who had been directed to purchase
drugs from Lipford. Put simply, Cunningham would have purchased
drugs from Lipford regardless of whether Lipford sold firearms.
12
21, 1996. Because the appellants properly preserved this assertion of
error, we review the district court's admission of the shooting evi-
dence for an abuse of discretion. See United States v. Lowe, 65 F.3d
1137, 1145 (4th Cir. 1995).
The appellants' first contention is that Federal Rule of Evidence
404(b) mandated exclusion of the shooting evidence. However, we
have previously held that "Rule 404(b) applies only to limits on the
admission of other acts extrinsic to the one charged." United States
v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). Thus,"where testimony is
admitted as to acts intrinsic to the crime charged, and is not admitted
solely to demonstrate bad character, it is admissible." Id. at 88.
The appellants characterize the evidence as "extraneous" to the
crimes charged. We disagree. "Other criminal acts are intrinsic when
they are inextricably intertwined or both acts are part of a single crim-
inal episode or the other acts were necessary preliminaries to the
crime charged." Id. (quotation omitted). The shooting evidence falls
squarely within our definition of "intrinsic acts." Burton's testimony
revealed that Farmer had agreed to defend the conspiracy's supply of
drugs by shooting at officers who raided his home, and he did just that
when the police executed the warrant. The shooting evidence also
corroborated other evidence establishing that Farmer was involved in
a drug conspiracy with Roy Womack, and it served to complete the
story with respect to the scope of the drug conspiracy. Because this
evidence was intrinsic to at least the drug conspiracy charge, Rule
404(b)'s limitation does not apply to it.
In the alternative, the appellants assert that the shooting evidence
should have been excluded under Federal Rule of Evidence 403. They
claim that the probative value of the shooting evidence was substan-
tially outweighed by the danger of unfair prejudice. The unfair preju-
dice they claim is that the jury might have convicted the appellants
for the drug offenses solely because one of them was involved in the
shooting of a police officer.
While there is no doubt that the shooting evidence was highly
incriminating, being prejudicial in this manner is not unfair. When
Farmer agreed that he would shoot police officers attempting to raid
his drug enclave, he demonstrated the extent to which he would
13
defend this drug conspiracy, and the statement that Farmer would
"take-out" anyone who would bust them clearly linked the police
shooting to the drug conspiracy. In addition, Burton's testimony dem-
onstrated that Roy Womack and Farmer furthered the conspiracy by
agreeing upon a unified response in the event of a raid. This evidence
was thus highly relevant in demonstrating the scope of the conspiracy,
and under the circumstances, the shooting evidence was appropriately
prejudicial. Therefore, the district court did not abuse its discretion by
concluding that the probative value of the shooting evidence was not
substantially outweighed by the danger of unfair prejudice.
Finally, Womack and Lipford claim that the shooting evidence
should not have been admitted against them because they did not par-
ticipate in the actual shooting of the police officer. However, the evi-
dence at trial established that these defendants were both involved in
the drug trafficking conspiracy, and there was no evidence that they
had withdrawn from the conspiracy prior to the shooting. See United
States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986) (noting that conspir-
ators are deemed to continue as members of conspiracy absent affir-
mative evidence of termination of or withdrawal from conspiracy).
Therefore, there was also no abuse of discretion in admitting the
shooting evidence against Womack and Lipford. To the extent that
Womack and Lipford assert that they were entitled to a limiting
instruction under Federal Rule of Evidence 105, 9 that claim fails for
the same reason.
Because the shooting evidence had an established nexus to the drug
conspiracy, that evidence was intrinsic and highly relevant to the drug
trafficking conspiracy charge. We therefore affirm, in all respects, its
admission by the district court.
_________________________________________________________________
9 Rule 105 provides: "When evidence which is admissible as to one
party or for one purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request, shall restrict the evi-
dence to its proper scope and instruct the jury accordingly." See Fed. R.
Evid. 105.
14
B.
Farmer also claims reversible error in the denial of his motion to
suppress evidence seized during the execution of the search warrant
on November 21, 1996. He challenges the denial of suppression on
three grounds, arguing that the motion should have been granted
because: (1) the search warrant was not supported by probable cause;
(2) the search warrant for his home was not signed by the Magistrate;
and (3) the police officers did not meet their obligation to "knock and
announce" before entering. For the reasons explained below, we find
each of these claims unavailing.
1.
First, Farmer claims that the search warrant itself was not sup-
ported by probable cause. We are compelled to reject this argument.
Farmer clearly waived it in the district court when he agreed that his
motion to suppress was based not on a challenge to probable cause
but rather upon a violation of the "knock and announce" rule. J.A. 70.
Further, we have carefully reviewed the evidence supporting the war-
rant, and we are confident that the warrant was supported by probable
cause.
2.
Farmer also contends that before the police began searching his
home, they handed him a copy of the search warrant that did not bear
the Magistrate's signature. Farmer asserts that this fact -- that his
copy of the warrant was unsigned -- mandates suppression of the evi-
dence gathered during the search. Farmer did not contend at the sup-
pression hearing that the warrant was actually unsupported by
probable cause; rather, he asserted that delivery of an unsigned copy
was an independent constitutional violation.
Presuming that Farmer is correct that some copies of the warrant
were signed but that his was not, this was, at most, a technical viola-
tion of Federal Rule of Criminal Procedure 41(d), and not a violation
of the Fourth Amendment. Absent a demonstration of prejudice or
bad faith -- neither of which is present here-- suppression of evi-
15
dence is not the proper remedy for a violation of Rule 41(d). See
United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981) ("Violations
of Rule 41(d) are essentially ministerial in nature and a motion to sup-
press should be granted only when the defendant demonstrates legal
prejudice or that non-compliance with the rule was intentional or in
bad faith."). Because Farmer has neither alleged bad faith nor made
a showing of prejudice, we affirm the district court on this issue.
3.
Finally, with respect to compliance with the "knock and announce"
rule, we review the district court's factual findings for clear error and
its legal conclusions de novo. United States v. Ward, 171 F.3d 188,
193 (4th Cir. 1999). Further, we measure the period between "knock
and announce" and forcible entry for reasonableness in light of the
case's particular facts. Id. at 194-95. In this regard, we consider the
totality of the circumstances.
Here, the district court found that the officers had identified them-
selves prior to entering Farmer's home, and also that evidence poten-
tially could have been destroyed absent immediate entry into
Farmer's home. Although the court made no specific findings on the
other evidence submitted at the suppression hearing in connection
with this argument, that evidence indicates that the officers had addi-
tional relevant facts before them when they entered Farmer's home.
Before entering, a group of officers gathered around Farmer's home
with a search warrant and with reliable information that the home was
being used for drug trafficking. Then, one undercover officer
approached the home and knocked on the door, posing as a drug
buyer. Farmer answered her knock immediately but told her to leave.
As the officer walked away, she signaled for the search team to enter.
They approached the door, knocked, and announced that they were
police officers. The officers waited approximately five seconds and,
hearing no response (as opposed to the immediate response received
by the undercover officer), the officers broke into the home using a
battering ram.
Evaluating the totality of these circumstances, we agree with the
district court that it was objectively reasonable for the officers to enter
approximately five seconds after they knocked and announced. We
16
find no clear error in the district court's determination that evidence
was in danger of being destroyed, and the other facts known to the
officers -- especially that a knock on the door had been acknowl-
edged very quickly just a few minutes earlier -- convince us that the
contested actions of the officers were objectively reasonable.
We therefore find no reversible error in Farmer's challenges to the
denial of his motion to suppress the fruits of the November 21, 1996
search of his home, and we sustain the rulings of the district court in
this regard.10
IV.
Womack, Farmer, and Lipford have also challenged their sentences
on various grounds. For the reasons below, we affirm the sentences
of Womack and Farmer but vacate Lipford's sentences.
A.
Womack has a single objection to his sentencing. He claims that
the trial court erred in departing upward based on his prior convic-
tions, asserting that the United States Attorney failed to file with the
court, and properly serve, the information required by 21 U.S.C.
§ 851(a)(1).11 Because Womack did not properly preserve this argu-
_________________________________________________________________
10 We have also carefully considered the appellants' other challenges to
the guilt phase below, including: (1) that the "law of the case" doctrine
prohibited admission of the shooting evidence; (2) that the Government
should have been prohibited from submitting the shooting evidence to
the jury in the order that it was admitted; and (3) that there was insuffi-
cient evidence to support their drug conspiracy convictions. We find
each of these arguments to be without merit. Similarly, we find no basis
on this record to conclude that Womack's counsel was ineffective,
although Womack may seek to pursue that argument in a collateral pro-
ceeding.
11 21 U.S.C. § 851(a) requires, in pertinent part:
No person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one or
more prior convictions, unless before trial, or before entry of a
plea of guilty, the United States attorney files an information
with the court (and serves a copy of such information on the per-
son or counsel for the person) stating in writing the previous
convictions to be relied upon.
17
ment below, we must review this assertion for plain error. See United
States v. Olano, 507 U.S. 725 (1993); United States v. Ford, 88 F.3d
1350, 1355 (4th Cir. 1996) ("A defendant's failure to object to a sen-
tencing issue amounts to a waiver of his right to raise that issue on
appeal, absent plain error."). To meet this "plain error" standard,
Olano requires: (1) that there be error; (2) that the error be plain; (3)
that the plain error affected the defendant's substantial rights; and (4)
that the plain error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. See Olano , 507 U.S. at 732-36.
On this record, we fail to find error in the district court's upward
departure. The district court's criminal docket sheet for this case notes
that, on June 2, 1997, the United States Attorney filed an information
setting forth those of Womack's prior convictions that the Govern-
ment intended to rely upon in seeking an increased sentence. The
docket sheet also reveals that Womack's lawyer at that time was Wil-
liam C. Hicklin of Virginia. The information itself clearly informed
the district court that the Government was seeking"increased punish-
ment by reason of prior convictions" because Womack "was found
guilty in the Circuit Court for the City of Danville, Virginia, of four
counts of distribution of cocaine on May 5, 1994." See Second Supp.
J.A. 1. Further, attached to the information is a certification by an
Assistant United States Attorney that the information was hand-
delivered to Mr. Hicklin on June 2, 1997. Id. at 2. Finally, Mr. Hick-
lin, who represented Womack through sentencing, did not object to
the upward departure by arguing that the Government failed to serve
the information; rather, Womack's new lawyer on appeal identified
this claim of error based on an incomplete criminal docket sheet that
did not contain the entry recording the Government's filing of the
information. Given this evidence, and the lack of any evidence to the
contrary, we find no error in the upward departure based on
Womack's prior convictions.
B.
1.
Farmer also challenges his sentence on several grounds. He first
contends that the district court erred in calculating the weight of drugs
that correlated to his base offense level. We review the district court's
18
factual findings on the weight of the drugs for clear error. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). "Further, the dis-
trict court may attribute to the defendant the total amount of drugs
involved in the conspiracy, provided the drug quantities were reason-
ably foreseeable to the defendant and are within the scope of the [con-
spiracy]." Id. (citing United States v. Irvin, 2 F.3d 72, 77 (4th Cir.
1993)). Moreover, the Government need only prove the drug quanti-
ties attributable to the defendant by a preponderance of the evidence.
See United States v. Vinson, 886 F.2d 740, 741-42 (4th Cir. 1989).
Here, the district court gave Farmer a life sentence based on an
adjusted offense level of 47 (increased from a base offense level of
38). To reach a base offense level of 38 under United States Sentenc-
ing Commission, Guidelines Manual, § 2D1.1 (Nov. 1998) ("USSG"),
the district court had to find that Farmer was involved in the distribu-
tion of only 1.5 kilograms of crack. However, the district court found
Farmer responsible for over 5 kilograms of crack, and Farmer con-
cedes that at least one witness testified to Farmer's direct involvement
in the distribution of this amount. Farmer's sole argument is that this
testimony was not credible. On the contrary, we find no clear error
and affirm the district court's finding.
2.
Farmer next claims error in the two-level increase based on his
possession of a firearm in connection with a drug offense. See USSG
§ 2D1.1(b)(1). The district court made that finding based on Farmer's
shooting of the police officer during the execution of the search war-
rant, but Farmer claims that this increase was erroneous because there
were no drugs found at Farmer's residence that night. In light of Bur-
ton's testimony establishing a nexus between the shooting and the
drug conspiracy, see supra at 7, we find no error in the district court's
determination that Farmer's possession of the firearm was connected
to a drug offense. Farmer's argument in this respect thus fails.12
_________________________________________________________________
12 For this same reason, Farmer's challenge to the three-point "official
victim" increase for shooting a police officer, see USSG § 3A1.2, also
fails.
19
3.
Farmer next claims error based on the district court's two-level
increase for Farmer's role in the offense under USSG§ 3B1.1: that
Farmer was an organizer, leader, manager, or supervisor in the drug
conspiracy. The district court's factual determinations on role in the
offense are reviewed for clear error. See United States v. Sarno, 24
F.3d 618, 622-23 (4th Cir. 1994); United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989). Although Farmer states, in conclusory
fashion, that there was no evidence to support this finding, we con-
clude that there was ample evidence supporting this determination,
and we certainly find no clear error.13 We therefore reject this argu-
ment.
4.
Finally, Farmer contends that the district court erred in increasing
his offense level by two-levels based on "obstruction of justice" under
USSG § 3C1.1. Farmer asserts that this increase was not justified
because he was attempting to procure an unsworn false statement, not
a sworn false statement.14 The district court concluded that an obstruc-
tion of justice increase was justified based either upon: (1) "the alle-
gations of perjury" or (2) Farmer's attempt "to get the false affidavits
executed, or in fact getting false affidavits executed." J.A. 1955-56.
Farmer now asserts that this was not an obstruction of justice because
the document he sent to Hood would not have been a sworn statement
even if it had been signed.
_________________________________________________________________
13 Indeed, the district court considered a two-point increase "conserva-
tive[,]" noting that the evidence supporting Farmer's role in the offense
could have justified "a four[-point increase] rather than a two[-point
increase]." J.A. 1955.
14 Although it is unclear which particular conduct the district court
relied upon in imposing this increase under USSG§ 3C1.1, we believe
the district court likely grounded this increase on Farmer's attempt to get
a false written statement from Anthony Hood. Among other things, Hood
testified that, prior to trial, Farmer sent him a document stating --
untruthfully -- that Hood did not know, or have any dealings with, Far-
mer. Farmer asked Hood to sign it (without swearing to it), but Hood
declined.
20
We note that the Sentencing Guidelines broadly define the conduct
constituting an obstruction of justice under USSG§ 3C1.1.15 How-
ever, we need not decide whether the conduct here meets that broad
definition because even if we assume, without deciding, that there
was error, any such error would be harmless. Farmer was sentenced
to life imprisonment based on an adjusted offense level of 47, but
absent other considerations not present here, an adjusted offense level
as low as 43 would have left the district court with no choice other
than the imposition of a life sentence. Because Farmer received only
an additional two-level increase for this conduct, we need not decide
whether attempting to procure a false, unsworn statement -- as
opposed to a false, sworn statement -- may merit an enhancement for
obstruction of justice under USSG § 3C1.1.
We therefore affirm Farmer's sentence to life imprisonment.
C.
Lipford was sentenced to 168 months in prison based on an
adjusted offense level of 34. In adjusting Lipford's base offense level,
the district court increased, by two levels, his combined16 base offense
level after finding that Lipford possessed a firearm during the drug
conspiracy. However, two circumstances require us to vacate Lip-
ford's sentence. First, we have reinstated Lipford's§ 924(c)(1) con-
viction, which was based on carrying a firearm during and in relation
to a drug transaction on May 31, 1996. Second, under certain condi-
tions, the Sentencing Guidelines prohibit an increase in base offense
level for possession of a firearm if the same conduct served as the
basis for a conviction under 18 U.S.C. § 924(c)(1). See USSG
_________________________________________________________________
15 At the time that Farmer was sentenced, USSG § 3C1.1 provided: "If
the defendant willfully obstructed or impeded, or attempted to obstruct
or impede the administration of justice during the investigation, prosecu-
tion, or sentencing of the instant offense, increase the offense level by 2
levels." See USSG § 3C1.1.
16 Pursuant to USSG § 3D1.5, the base offense levels of Lipford's six
convictions were combined to determine the appropriate sentence. The
district court's final judgment then provided 168 months imprisonment
"[o]n Counts 1, 10, 39, 40, 41, and 43, all such terms to run concurrently
with each other." J.A. 1916.
21
§ 2K2.4 comment(n.2). The record is sufficiently ambiguous17 that the
district court could have relied upon the same conduct underlying the
§ 924(c)(1) conviction when it increased Lipford's base offense level.
We are thus compelled to vacate each of Lipford's sentences. On
remand, the district court should determine: (1) Lipford's sentence for
the § 924(c)(1) conviction; and (2) whether the increase under USSG
§ 2D1.1(b)(1) is warranted in light of the§ 924(c)(1) conviction and
sentence thereunder.
V.
Pursuant to the foregoing, we reverse the district court's judgment
of acquittal on Lipford's conviction under 18 U.S.C.§ 924(c)(1) and
direct entry of a judgment of conviction on that count. We remand for
resentencing of Lipford and for such other proceedings as may be
_________________________________________________________________
17 The district court seemingly relied upon the May 31, 1996 conduct
for the two-level increase when it noted that there is a more relaxed
nexus requirement underlying USSG § 2D1.1(b)(1) than that required by
§ 924(c)(1): "Under the guidelines I don't think there is the same type
nexus required between the drug offense and the possession of the fire-
arm." J.A. 1905. However, the court did not necessarily rely only upon
that conduct; rather, it also made the following observations:
[O]bviously we had one shooting, we had Mr. Farmer shooting,
which is not tied to the defendant particularly, but it's -- we had
guns playing throughout the whole of the [conspiracy].
This particular tying of the gun to Mr. Lipford is not dependent
upon the specific count but is dependent upon all the counts,
including count one. So I think there is sufficient proof that, yes,
he . . . had a gun. He possessed a gun. There's no question about
that, and I don't think it is clearly improbable that the gun lacked
a connection with the offense.
J.A. 1905-06. By "[t]his particular," the court was likely referring to the
generalized tying, in Lipford's presentence report, of a firearm to the
conspiracy. Nonetheless, because the court also referred to the posses-
sion of the firearm during the drug transaction on May 31, 1996, the dis-
trict court may have been relying upon that conduct when it increased
Lipford's base offense level.
22
appropriate. In all other respects, we affirm the convictions and sen-
tences of the appellants.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS
23