United States v. Jacobs , 215 F. App'x 239 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES A. JACOBS, a/k/a Supa, a/k/a Arthur
Charles Jacobs,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-00-362)
Submitted: December 20, 2006 Decided: January 29, 2007
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James G. Connell, III, DEVINE & CONNELL, PLC, Fairfax, Virginia,
for Appellant. Lawrence J. Leiser, Michael Rich, Assistant United
States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Charles Jacobs of conspiracy to
distribute five kilograms or more of cocaine and one kilogram or
more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000);
conspiracy to import five kilograms or more of cocaine and one
kilogram or more of heroin, in violation of 21 U.S.C. §§ 846,
952(a) (2000); and aiding and abetting distribution of five hundred
grams or more of cocaine, in violation of 18 U.S.C. § 2, 21 U.S.C.
§ 841(a)(1) (2000). Jacobs was sentenced prior to United States v.
Booker, 543 U.S. 220 (2005). Treating the sentencing guidelines as
mandatory, the district court sentenced Jacobs to concurrent life
sentences on the three counts. Pursuant to United States v.
Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381
F.3d 316 (4th Cir. 2004) (en banc), vacated, 543 U.S. 1097 (2005),
the district court announced an alternative sentence of concurrent
220-month terms on the three counts.
On appeal, Jacobs challenges his convictions and his
sentence. For the reasons that follow, we affirm Jacobs’
convictions, vacate his sentence, and remand to the district court
for resentencing consistent with Booker.1
1
Jacobs timely appealed and moved to remand his case to the
district court for resentencing in light of Booker. Because his
docketing statement indicated he also intended to challenge his
convictions, we deferred action on the motion to remand and
reinstated the briefing schedule. We now deny as moot Jacobs’
pending motion to remand.
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First, Jacobs claims the Government impermissibly
bolstered and vouched for the testimony of its witnesses, initially
through the testimony of an agent of the Drug Enforcement Agency
(“DEA agent”) and then during the prosecutor’s closing argument.
Bolstering is an implication by the Government that the testimony
of a witness is corroborated by evidence that the Government knows,
but that the jury does not know. United States v. Lewis, 10 F.3d
1086, 1089 (4th Cir. 1993). Vouching occurs when an agent of the
Government indicates a personal belief in the credibility of a
witness. Id. Bolstering and vouching are generally, though not
necessarily, committed by the prosecutor during closing argument.
See United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st Cir. 2000)
(stating prosecutor may not permissibly bolster witness through
other witnesses’ testimony); United States v. Piva, 870 F.2d 753,
760 (1st Cir. 1989) (stating prosecutor’s solicitations of
trustworthiness from other Government witnesses may constitute
impermissible vouching). Impermissible bolstering and vouching
mandate retrial when they “so infect[] the trial with unfairness as
to make the resulting conviction a denial of due process.” United
States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997) (internal
quotation marks omitted).
Jacobs alleges the Government committed “evidentiary
bolstering” through the DEA agent’s testimony. Jacobs claims the
agent implied additional information not known to the jury by
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referring to information gleaned from individuals who did not
testify; stating he and a fellow DEA agent shared “all the
information” they had, even though the fellow DEA agent’s testimony
only concerned a single event; and explaining what steps he took
“to confirm or corroborate” information provided by Jacobs’ co-
defendants who testified for the Government. We conclude such
bolstering did not occur in this context. Cf. Rosario-Diaz, 202
F.3d at 61 (finding FBI agent impermissibly opined concerning star
witness’ veracity and effectiveness of agency’s interrogation
techniques rather than “properly [testifying] as to the actions he
took to corroborate [the witness’] testimony”).
Jacobs further alleges the district court abused its
discretion when it denied his motion for a new trial, following the
prosecutor’s allegedly improper statements during closing argument.
On rebuttal, the prosecutor praised the DEA agent, contending the
agent’s hard work and diligence uncovered a large drug trafficking
network and led to Jacobs’ prosecution. Jacobs claims the
prosecutor vouched for the DEA agent by equating hard work with
truthfulness and bolstered the agent’s testimony by implying the
agent’s investigation involved additional facts not known to the
jury. However, we conclude the prosecutor neither vouched for nor
bolstered testimony. See Sanchez, 118 F.3d at 198 (vouching
involves explicit, personal assurances of witness’ credibility or
trustworthiness); United States v. Francisco, 35 F.3d 116, 120 (4th
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Cir. 1994) (stating “the prosecution may make fair inferences from
the facts” because “closing argument is not merely a time for
recitation of uncontroverted facts”).
Next, Jacobs contends the district court improperly
admitted into evidence an Internal Revenue Service certification
stating Jacobs did not file an income tax return from 1999 to 2002.
On cross-examination, Jacobs claimed he filed tax returns during
this period; the Government sought to use the certification to
impeach Jacobs’ credibility pursuant to Fed. R. Evid. 608(b).
A witness’ credibility may not be impeached by extrinsic
evidence of specific instances of conduct, other than by evidence
of a conviction, see United States v. Blackshire, 538 F.2d 569, 572
(4th Cir. 1976), unless the extrinsic evidence is probative of a
material issue in the case. United States v. Smith Grading &
Paving, Inc., 760 F.2d 527, 531 (4th Cir. 1985). However, even
assuming the district court erred in admitting the IRS
certification under Rule 608(b), our weighing of the evidence of
Jacobs’ guilt gives us confidence that any such error did not
affect the jury’s verdict.2 See United States v. Ince, 21 F.3d
2The parties disagree concerning the appropriate standard of
review. The Government, noting Jacobs’ stated objection solely
concerned the time period covered by the IRS certification,
contends the issue should be reviewed for plain error. See Fed. R.
Crim. P. 52(b). Jacobs, noting the district court expressly
discussed the IRS certification’s appropriateness under Rule
608(b), contends the scope of his objection was broader and the
issue was sufficiently preserved for appellate review. Out of an
abundance of caution, we have reviewed the issue for harmless
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576, 583 (4th Cir. 1994). Jacobs’ trial lasted over a week and
featured more than a dozen witnesses. In addition to the testimony
of several cooperating witnesses linking Jacobs to the drug
conspiracy, the DEA agent’s telephone toll analysis linked Jacobs
to the cooperating witnesses. We accordingly conclude “with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole,” that the jury’s verdict was not
substantially swayed by any error in admitting extrinsic evidence
under Rule 608(b). Kotteakos v. United States, 328 U.S. 750, 765
(1946).
Finally, Jacobs contends his concurrent life sentences
violate Booker. Because Jacobs preserved this issue by objecting
under Blakely v. Washington, 542 U.S. 296 (2004), during
sentencing, our review is for harmless error. United States v.
Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006). Booker held that the
mandatory manner in which the federal sentencing guidelines
required courts to impose sentencing enhancements based on facts
found by the court by a preponderance of the evidence violated the
Sixth Amendment. Booker, 543 U.S. at 233-34. The Court remedied
the constitutional violation by making the Guidelines advisory
through the removal of two statutory provisions that had rendered
them mandatory. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005).
error. See Fed. R. Crim. P. 52(a).
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As the Government concedes, the district court sentenced
Jacobs under the mandatory federal sentencing guidelines and
enhanced Jacobs’ sentence based on facts not found by the jury
beyond a reasonable doubt or admitted by Jacobs. This error3
affected Jacobs’ substantial rights. Accordingly, although we
affirm Jacobs’ convictions, we vacate his sentence and remand for
resentencing consistent with Booker and Hughes.4 We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
3
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Jacobs’ sentencing. 401 F.3d at 545 n.4.
4
Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 543
U.S. at 264. On remand, the district court should first determine
the appropriate sentencing range under the guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors described in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2006), and then impose a sentence. Hughes, 401 F.3d
at 546. If that sentence falls outside the guidelines range, the
court should explain its reasons for the departure as required by
18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2006). Hughes, 401
F.3d at 546. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.
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