United States v. Emmith Snell , 676 F. App'x 144 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4488
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMMITH MARREL SNELL,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:14-cr-00073-FDW-5)
Argued: October 27, 2016 Decided: January 19, 2017
Before WILKINSON and TRAXLER, Circuit Judges, and Bruce H.
HENDRICKS, United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for
Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Emmith Marrel Snell for possession with
intent to distribute and distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). He was
sentenced to 63 months in prison. On appeal, Snell claims that
the government failed to produce evidence that he was entitled
to receive under Brady v. Maryland, 373 U.S. 83 (1963); the
Jencks Act, 18 U.S.C. § 3500; and Rule 16 of the Federal Rules
of Criminal Procedure. Snell also challenges the sufficiency of
the evidence to sustain his conviction. We affirm.
I.
From approximately January 2009 through April 8, 2014,
Reginald Lindsey operated a drug distribution business in
Charlotte, North Carolina. Lindsey purchased large quantities
of powder cocaine, some of which he used to manufacture crack
cocaine at a drug stash house. The Charlotte-Mecklenburg Police
Department investigated Lindsey’s drug operation. Between May
and July of 2013, undercover officers conducted several
controlled buys of crack cocaine from Lindsey and his
associates.
One such controlled buy occurred on June 11, 2013, and
involved Lindsey and two of his associates, Stanley Horton and
Defendant Emmith Snell. Officer Amir Holding, acting in an
undercover capacity, contacted Horton to arrange the purchase of
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4.5 ounces of crack cocaine from Lindsey for $5,175. Horton, in
turn, called Lindsey to get the drugs. Lindsey had already set
up five drug deals with other customers for that day and he
agreed to package the additional 4.5 ounces and meet Horton for
the sale to Officer Holding. Lindsey packaged the drugs in
clear plastic bags at the stash house.
In the early afternoon, Officer Holding and Sergeant
Terrance Gerald drove to the location where the controlled buy
was to take place. Sergeant Gerald got into the back seat of
Officer Holding’s vehicle and Horton, who had arrived
separately, got into the front passenger seat next to Officer
Holding. From the back seat, Sergeant Gerald videotaped the
drug deal, although at times there was only an audio recording
because he would have to lower the camera to avoid detection.
Officer Holding gave Horton the money for the crack
cocaine. When Lindsey arrived, Horton got out of the undercover
vehicle and into Lindsey’s car, where Lindsey and Horton counted
the money. Lindsey then realized that he had accidentally left
the 4.5 ounces of crack cocaine on the kitchen counter of the
stash house. Lindsey called Snell and asked Snell to go to the
stash house, retrieve the drugs, and bring them to the location.
Snell was a trusted friend to Lindsey and the only member of
Lindsey’s organization who had a key to the stash house.
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Within minutes, Snell arrived at the controlled-buy
location on a motorcycle. Snell got off the motorcycle and into
the back seat of Lindsey’s vehicle. He handed the crack
cocaine, which was packaged in a clear plastic bag, across the
front seat to Lindsey. Snell then returned to his motorcycle
and left the location. Horton returned to Officer Holding’s
vehicle and delivered the crack cocaine, which a laboratory
analysis confirmed to be cocaine base.
On April 8, 2014, a grand jury returned a thirteen-count
indictment against eleven defendants, including Lindsey, Horton,
and Snell. Snell was named in two of the thirteen counts.
Specifically, Count 2 charged Lindsey, Horton, and Snell with
conspiracy to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846, from January 2009
through April 8, 2014. Count 9 charged Lindsey, Horton, and
Snell with possession with intent to distribute and distribution
of cocaine base on or about June 11, 2013, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), and aiding and abetting that
offense, in violation of 18 U.S.C. § 2. Snell pleaded not
guilty to both counts.
Lindsey was charged in the indictment with two additional
conspiracy counts, plus five additional counts of possession
with intent to distribute and distribution of cocaine base,
arising out of other drug deals that took place between May 8,
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2013, and July 18, 2013. He subsequently agreed to plead guilty
to the Count 2 conspiracy and cooperate with the government.
This included meeting with the government on several occasions
and providing testimony adverse to Snell at trial. In addition
to his testimony regarding the June 11, 2013, sale of crack
cocaine to Officer Holding, Lindsey offered testimony about his
relationship with Snell and Snell’s ongoing involvement in his
drug business. The jury ultimately convicted Snell of Count 9,
possession with intent to distribute and distribution of cocaine
base on June 11, 2013, but acquitted him of Count 2, the
conspiracy count.
II.
Snell contends that the evidence was insufficient to
convict him of the Count 9 possession with intent to distribute
charge. We review a defendant’s challenge to the sufficiency of
the evidence de novo, and we must affirm if there is substantial
evidence to support the conviction when viewed in the light most
favorable to the Government. See United States v. Engle, 676
F.3d 405, 419 (4th Cir. 2012). “Substantial evidence is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of guilt beyond
a reasonable doubt.” Id. “[R]eversal for insufficiency must be
confined to cases where the prosecution’s failure is clear.”
Id. (internal quotation marks omitted).
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We conclude that there was sufficient evidence to support
the jury’s verdict. Lindsey testified that Snell was a member
of his drug organization and the only person to whom he had
entrusted a key to his drug stash house. When he realized that
he had forgotten to bring the 4.5 ounces of crack cocaine for
the sale to Officer Holding, Lindsey called Snell and asked him
to go to the stash house and bring the drugs to him. Within
minutes, Snell arrived at the location, entered Lindsey’s
vehicle, and handed a clear plastic bag containing 4.5 ounces of
crack cocaine to Lindsey.
Lindsey’s testimony alone is sufficient to support the
jury’s verdict. See United States v. Wilson, 115 F.3d 1185,
1190 (4th Cir. 1997) (“[T]he uncorroborated testimony of one
witness or of an accomplice may be sufficient to sustain a
conviction.”). But in this case, it does not stand alone.
Lindsey’s testimony was corroborated by the testimony of the
undercover officers, who collectively observed Snell arriving at
the scene and handing something over the console towards
Lindsey, as well as by the video-recording of the transaction.
Snell’s contention that Lindsey’s testimony was not
credible is of no avail. In resolving issues of substantial
evidence, this court may not reweigh the evidence or reassess
the factfinder’s determination of witness credibility, and it
must assume that the jury resolved all contradictions in
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testimony in favor of the government. See United States v. Roe,
606 F.3d 180, 186 (4th Cir. 2010).
We likewise find no merit in Snell’s claim that the
district court erred in allowing the officers to identify Snell
in still photographs because the photographs were blurry, and
Snell’s related claim that, but for this identification, the
jury’s verdict would have been unsubstantiated or different.
The officers were present on the scene when the video-recording
took place and the district court did not abuse its discretion
in allowing them to identify Snell and the other individuals
based upon the still photographs and their memories. It was for
the jury to view the photographs and decide what weight should
be given to the testimony. Moreover, Snell does not deny that
he was present at the location of the controlled buy; he merely
contends that he could have been there for an innocent reason.
That was for the jury to determine as well, and the photographs
add nothing to that inquiry.
Accordingly, we hold that the district court did not err in
admitting the officer’s identification testimony and we conclude
that the evidence presented to the jury was clearly sufficient
to support the verdict.
III.
Snell next contends that we should vacate his conviction
because the government ran afoul of its discovery obligations
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under Federal Rule of Criminal Procedure 16; 1 the Jencks Act, 18
U.S.C. § 3500; 2 and Brady v. Maryland, and its progeny. 3
A.
Snell first contends that we should vacate the jury’s
verdict because the government failed to disclose exculpatory
statements that Lindsey allegedly made regarding Snell’s
involvement in his drug business and failed to produce a written
statement allegedly obtained by the government from Lindsey.
The district court found no Brady violation because Snell failed
to demonstrate that the government was in possession of such
statements. We affirm.
Lindsey met with law enforcement and the prosecution on
October 21, 2014, and again on October 31, 2014. On November 3,
2014, the government produced to Snell a summary of these
1 Rule 16(a)(1)(E) requires the government to permit the
defendant to inspect documents and objects that are in the
government’s possession, custody, or control, and material to
the defense, intended to be used in the government’s case-in-
chief, or obtained from the defendant.
2 “The Jencks Act requires the [g]overnment to turn over any
statement of a witness in its possession once the witness has
testified on direct examination, provided the statement relates
to the testimony of the witness.” United States v. Bros.
Constr. Co., 219 F.3d 300, 316 (4th Cir. 2000).
3 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring
the government to disclose “evidence favorable to an accused
upon request . . . where the evidence is material either to
guilt or to punishment”); Giglio v. United States, 405 U.S. 150,
154-55 (1972) (requiring the government to disclose evidence
tending to impeach a government witness prior to trial).
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meetings that did not contain the purported exculpatory
statements. The government also did not produce a written
statement from Lindsey.
Unbeknownst to the government, Lindsey also spoke by
telephone to Snell’s girlfriend, Martha Scott, on October 21,
2014, to discuss the two charges that had been brought against
Snell and to enlist Scott’s help in getting Snell to plead
guilty. Scott secretly recorded this conversation.
The day before trial, Snell’s attorney, who had obtained a
copy of the recording from Scott, produced it to the government.
In the recording, Lindsey tells Scott that the government had
them red-handed, and that Snell would probably receive a much
lighter sentence if he pled guilty. Lindsey told Scott that he
had minimized Snell’s involvement in his drug business and that
Snell had nothing to do with the other drug deals in the
indictment. Lindsey also told Scott that he had written a
statement to this effect for the government and that he believed
the government would also give Snell a deal if he pled guilty.
Based solely upon this surreptitious recording, Snell filed
a pre-trial motion to compel the government to produce any
exculpatory or written statements made by Lindsey to or for the
government. The government informed the court that Lindsey had
consistently implicated Snell in his ongoing drug business and
in the single controlled buy for which Snell was indicted, and
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that Lindsey had made no such exculpatory or written statements
to the government. Nor did the government have any prior
knowledge of the telephone call between Lindsey and Scott.
The district court listened to the telephone recording in
its entirety and reviewed in camera the government’s interview
notes from the meetings with Lindsey for the purpose of
determining whether there was any undisclosed Brady material.
It found none. However, the court ruled that Snell was free to
use Lindsey’s prior inconsistent statements to Scott as
impeachment evidence, in accordance with the applicable rules of
evidence, and to place the question of Lindsey’s credibility
regarding Snell’s actual involvement before the jury.
That is precisely what occurred. Lindsey was questioned by
the government and by defense counsel about the telephone call.
The government played the entire recording of the telephone call
for the jury’s consideration. Lindsey testified, consistent
with the government’s representations to the court and the
court’s in camera review of the government’s interview notes,
that Snell had been involved in Lindsey’s ongoing drug business
and that Snell brought the 4.5 ounces of crack cocaine to him at
his request for the June 11 deal. Lindsey also confirmed that
he never provided a written statement to the government.
Lindsey also offered an explanation for his inconsistent
statements to Scott during their telephone conversation. He
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testified that the purpose of the telephone call was to convince
Scott to persuade Snell to accept a guilty plea, as everyone
else named in the indictment had done, so that Snell would also
receive a lesser sentence. Lindsey testified that Snell was his
best friend and closest confidant. He felt guilty because he
had asked Snell to bring him the crack cocaine on June 11, and
he believed that Snell would never have been on the indictment
and would not be going to jail if he had not done so.
Accordingly, Lindsey testified that he “was saying anything [to
Scott] to try to [get] Emmith Snell to sign a plea.” J.A. 225.
We find no error in the district court’s factual findings
or legal conclusions. Because Snell failed to establish that
Lindsey made the alleged exculpatory or written statements to or
for the government, he failed to establish that the government
violated Brady or any of its other discovery obligations.
B.
Snell next contends that the government violated its
discovery obligations by failing to inform him that Officer
Holding had seen Snell at a drug deal involving Lindsey that
occurred prior to the six drug deals at issue in the indictment.
The government learned of this information the day before
Officer Holding testified and made the decision not to use the
evidence against Snell in the government’s case-in-chief, even
though the evidence was potentially inculpatory as to Snell.
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The government did not inform Snell of this information prior to
the conclusion of Officer Holding’s direct examination.
At the start of Snell’s cross-examination of Officer
Holding, however, Snell’s counsel asked an open-ended question
that could have elicited this testimony from Officer Holding,
prompting the government to interrupt for a side bar conference
and inform the judge and defense counsel of this information.
Snell objected to the late disclosure of the information as a
violation of the government’s discovery obligations, which the
district court overruled, and the information was never
presented to the jury.
We find no reversible error in the district court’s ruling.
The government was not required to disclose the information
under Brady because it was not exculpatory. Nor did the
statement relate directly to the controlled buys at issue in the
indictment. Moreover, even if the government should have
produced this information prior to the cross-examination of
Officer Holding, there was no prejudice to Snell. Snell argues
that he could have used Officer Holding’s inculpatory testimony
about Snell’s presence at an unrelated drug deal to impeach
Lindsey’s favorable testimony that Snell was not involved in any
of the other drug deals set forth in the indictment. Clearly,
there is no reasonable probability that such testimony would
have resulted in a different verdict on Count 9. But, in any
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event, the information was disclosed to the defense in
sufficient time for Snell reasonably and effectively to make use
of it at trial. Snell chose not to do so.
C.
Finally, Snell alleges that the government violated its
discovery obligations by failing to produce the conviction
history of Snell’s girlfriend, Martha Scott. Scott was called
by the defense to testify about Snell’s sources of legitimate
income and to provide support for his theory that he did not
need to participate in Lindsey’s drug business. Scott was not
present at the June 11 controlled buy, nor did she offer any
information about that transaction. During cross-examination,
the government impeached Scott with her prior conviction for
providing fictitious information to an officer. Snell did not
object.
After trial, Snell filed a motion to compel, and argued
that the government had failed to comply with his earlier
“Motion for Pre-Trial Production of Brady and Impeachment
Evidence Concerning Government Witnesses,” J.A. 53, which had
requested, among other things, the “FBI rap sheet, NCIC printout
and any other records available to the government reflecting the
arrest and conviction history of any [such] witness.” J.A. 55.
Construing the post-trial motion to compel as a motion for a new
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trial or for a judgment of acquittal, the district court denied
the same. We affirm.
Scott was not a government witness. The government had no
obligation under Brady or otherwise to anticipate who the
defense might call as a witness and disclose evidence that was
only relevant to the government’s potential impeachment of a
defense witness. The evidence was easily and equally obtainable
by the defense. Moreover, given Scott’s lack of knowledge or
testimony about the June 11 drug deal, there is no reasonable
probability that, had the information been disclosed to Snell,
the result of the verdict on Count 9 would have been different.
IV.
For the foregoing reasons, we affirm the district court’s
judgments.
AFFIRMED
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