United States v. Vassell ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TODD ERROL VASSELL, a/k/a Tadd
No. 97-4407
Vassell, a/k/a Chris Daley, a/k/a
Michael Derwitt, a/k/a Andre
Nunes, a/k/a Corey Ryan, a/k/a Eric
Scott,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-93-81)
Submitted: August 11, 1998
Decided: September 11, 1998
Before WILKINS and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, Laura
Pellatiro Tayman, Assistant United States Attorney, Norfolk, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Todd Errol Vassell was convicted of conspiracy to distribute and
possess with intent to distribute heroin, cocaine and cocaine base in
violation of 21 U.S.C. § 846 (1994) and possession with intent to dis-
tribute heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced
to life imprisonment and twenty years' imprisonment concurrently,
respectively. On appeal, Vassell alleges various errors in his sentence
and that the district court erred in not redacting certain information
from the indictment. Finding no error, we affirm.
The evidence at trial disclosed that Todd Vassell was a member of
a highly organized enterprise that distributed crack cocaine in Vir-
ginia Beach, and later also in Portsmouth, Virginia. The leaders of the
group, Dwayne and Michael Jenkins, obtained highly potent heroin
and cocaine from New York and forwarded these substances to Vir-
ginia through private mail services. Upon the drugs' arrival, the Jen-
kinses opened the packages, and other members were responsible for
packaging the narcotics for distribution in the housing projects.
In 1992, Vassell was primarily responsible for distributing/selling
the heroin and crack cocaine. After unsuccessfully attempting to start
a satellite drug operation in Tennessee, Vassell returned to Virginia,
where he assisted in the group's heroin operation in the Tidewater
Gardens project. At this time, Vassell lived with another member of
the group, Floyd Watson, in Virginia Beach.
In that same year, detectives began an extensive investigation into
the organization. Video tapes of routine surveillance showed Vassell
and other co-conspirators consistently leaving the Virginia Beach res-
idence carrying plastic bags. The detectives then followed them into
Norfolk. One day, officers stopped a vehicle, driven by Kevin Kin-
low, who was observed carrying two plastic bags as he exited the resi-
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dence. A subsequent search of the vehicle revealed that the plastic
bags contained 579 packets of heroin and a semiautomatic pistol.
Vassell and Watkins observed the stop and subsequent arrest of Kin-
low from across the street. Vassell assumed Kinlow's responsibilities
for the supervision of the heroin operation in the Tidewater Gardens
project on April 28, 1992.
Each morning Watson gave Vassell twenty to twenty-five bundles
of heroin to sell in the Tidewater Gardens project. Each bundle con-
tained thirty packets of heroin, each packet selling for $15. As part
of his role in the operation, Vassell paid a woman in the projects to
use her residence to facilitate distribution, and other individuals to
serve as look-outs. Vassell was further responsible for other members
of the group distributing the heroin in that area. Vassell was responsi-
ble for selling approximately $7000 to $10,000 worth of heroin daily.
All distributors waited for Vassell's arrival and always consulted with
him prior to commencing distribution.
In May 1992, detectives conducted a search of several of the resi-
dences used by the group. A search of the residence Vassell shared
with Watson disclosed 3000 packets of heroin, five false bottom cans
that contained bulk heroin and cutting agents, a firearm, a safe con-
taining approximately $3000 in U.S. currency, a digital scale, numer-
ous empty glassine packets, photographs of Vassell and other co-
conspirators and other drug paraphernalia. A search of Dwayne Jen-
kins' apartment which Vassell was often videotaped frequenting
revealed $40,000 in currency, drug ledgers, and another firearm. A
search of other residences resulted in the seizure of similar items.
Vassell, along with most of the other co-conspirators, were arrested
and charged with state narcotic offenses. Released on bond, members
of the group decided to flee the area rather than return to court.
On May 25, 1993, Vassell along with ten other co-conspirators
were indicted by a federal grand jury for conspiring to distribute nar-
cotics, engaging in a criminal enterprise, and related offenses. Vassell
remained a fugitive until his first court appearance on December 4,
1996. Prior to this appearance, all but one other co-conspirator had
pled guilty and been sentenced. All but one of those that pleaded
guilty received reductions in their sentence for substantial assistance
to the Government.
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Vassell pleaded not guilty and was subsequently tried by a jury.
The jury ultimately found Vassell guilty of conspiring to distribute
narcotics and possessing with intent to distribute heroin. Over Vas-
sell's objections to the presentence report, the court sentenced Vassell
to life imprisonment and twenty years' imprisonment respectively.
On appeal, Vassell first alleges that the court erred in failing to
redact alleged surplusage from the indictment. In the indictment, Vas-
sell was charged with a number of overt acts. At the close of evi-
dence, Vassell moved to strike those acts which were not proven by
the Government. Because of the amount of retyping required by strik-
ing portions of the indictment and the fact that the Government was
not required to present proof of the various overt acts, the court
denied the motion.
We review a court's refusal to strike certain language from an
indictment for an abuse of discretion. See United States v. Poore, 594
F.2d 39, 41 (4th Cir. 1979). The submission of an indictment to the
jury is left to the discretion of the trial court. See United States v.
Polowichak, 783 F.2d 410, 413 (4th Cir. 1986). Ordinarily an indict-
ment which contains irrelevant allegations should be redacted. Id.There is no reversible error, however, when the court unequivocally
instructs the jury that the indictment is not evidence, that it is distrib-
uted solely as an aid in following the court's instructions and the
arguments of counsel, and that certain counts should be disregarded
as irrelevant to the defendant currently on trial. Id.In this case, the court instructed the jury in the following manner
with regard to the indictment:
I will also be sending back a certified copy of the indict-
ment. But remember what I have said. The indictment is in
and of itself not evidence. It is just there for your conve-
nience and easy reference. And also you would need to refer
to the instructions, as I have said . . . . [T]here is no burden
of proof as to the overt acts in the indictment. The indict-
ment is very lengthy.
And again I would tell you that it goes from count 1 to count
41, and that's because those are the only two counts that
pertain to this particular defendant.
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J.A. at 584-85. Given the court's limiting instruction, we find no
abuse of discretion in the trial court's denial of the motion and no
resulting prejudice to Vassell.
Vassell next alleges that the court attributed a larger quantity of
drugs to him than was reasonably foreseeable. He specifically con-
tends that there was insufficient evidence to establish that he was a
member of the conspiracy from December 1990 to August 1991 and
that there was an insufficient determination of those amounts he knew
about or were reasonably foreseeable to him. We review the sentenc-
ing court's factual determination of the amount of controlled sub-
stances attributable to a defendant pursuant to USSG§ 1B1.3,* on a
clearly erroneous standard of review, with due deference to the
court's application of the guidelines to the facts. See United States v.
D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994). The court found that Vas-
sell was involved in the conspiracy from December 1990 to August
1992, and that he was responsible for 5,669.85 grams of heroin,
974.024 grams of cocaine, and 3375 grams of crack cocaine. Given
the extensive evidence introduced by the Government of Vassell's
active involvement in the conspiracy, including surveillance tapes and
testimony of co-conspirators during that relevant period, we cannot
find that the court erred in this determination.
Vassell also maintains that the court erred in concluding that Vas-
sell possessed a firearm for sentence enhancement purposes. The
enhancement under USSG § 2D1.1(b)(1) "should be applied if the
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense." In a conspiracy case the proximity
condition is met when the weapon is present in a place where the con-
spiracy is carried on or furthered. See United States v. Apple, 962 F.2d
335, 338 (4th Cir. 1992). If possession is attributed to a co-
conspirator, a defendant should receive the enhancement when it is
reasonably foreseeable to him that his co-conspirators possessed dan-
gerous weapons that are connected with the conspiracy. See United
States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994); United States v.
Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993). It is not necessary for the
defendant to ever have had possession of the gun. See Nelson, 6 F.3d
at 1056. The district court's factual determinations in this regard are
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*U.S. Sentencing Guidelines Manual § 1B1.3 (Nov. 1997).
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reviewed for clear error. See United States v. Brooks, 957 F.2d 1138,
1148-49 (4th Cir. 1992).
Here, there is ample evidence of the highly organized nature of the
conspiracy to distribute drugs and Vassell's involvement in the con-
spiracy. Kinlow, a co-conspirator who was found in possession of a
firearm, testified that another member of the conspiracy gave it to him
and that it was used by himself and the others in the group for protec-
tion. Vassell was seen leaving the residence with Kinlow on the day
police arrested Kinlow. Furthermore, another firearm was recovered
after a search of Vassell's residence along with other drug-related par-
aphernalia. In light of the foregoing, we find no error in the court's
enhancement of Vassell's sentence under USSG § 2D1.1(b)(1).
Vassell also maintains that the court erred in assessing a three-level
enhancement to his sentence pursuant to USSG § 3B1.1(c) on the
basis that he exercised a supervisory role in the criminal activity. Fac-
tual disputes concerning adjustments under the guidelines should be
resolved by a preponderance of the evidence. See United States v.
Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). The district
court's findings of fact concerning role adjustments must be affirmed
unless clearly erroneous. See United States v. Smith, 914 F.2d 565,
569 (4th Cir. 1990).
The evidence at trial disclosed that Vassell was in charge of the
drug operation at the Tidewater Gardens Apartment project between
April 28, 1992 and May 29, 1992, after Kinlow was arrested. Vassell
arranged to pay a resident to use her apartment for the operation and
instructed the other members of the conspiracy on how to proceed in
distributing the drugs. Furthermore, he was responsible for compen-
sating distributors and the look-outs. Given these facts, we find no
error in the court's finding that Vassell held a supervisory role in the
drug operations.
Vassell lastly contends that the court erred in attributing him with
drug quantities distributed prior to his eighteenth birthday, August 5,
1991. Conspiracy is a continuing crime and although Vassell may
have become involved in the conspiracy before his eighteenth birth-
day, he continued to play an active part in the conspiracy after he
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became eighteen years old. We thus reject this argument based on
United States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984).
Accordingly, we affirm Vassell's conviction and sentence. We
grant his motion to file a supplemental, pro se brief. We have consid-
ered the issues raised in that brief and find them to be without merit.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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