United States v. Sherrill ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5720
BERNARD DONNELL SHERRILL, a/k/a
Nard,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Terrence W. Boyle, District Judge, sitting by designation.
(CR-95-5)
Argued: March 3, 1997
Decided: March 28, 1997
Before WILKINSON, Chief Judge, HALL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Norman Butler, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United
States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bernard Donnell Sherrill was convicted of one count of conspiracy
to possess with intent to distribute and to distribute cocaine and
cocaine base within 1000 feet of a school and a playground, in viola-
tion of 21 U.S.C.A. §§ 841(a)(1), 846, & 860 (West Supp. 1996). He
appeals from his conviction and life sentence. We affirm.
I
The evidence presented at trial demonstrates that Sherrill was a
member of a large-scale cocaine and crack distribution network that
operated in the Charlotte, North Carolina area during the early 1990s.
The primary leaders and organizers of the conspiracy were Paul Mob-
ley and his nephews, Darwin and Jesse Mobley. The Mobleys, along
with other family members and recruited associates, purchased large
quantities of cocaine that they converted into crack cocaine for distri-
bution. Sherrill worked as a distributor for the Mobleys and others
and also recruited other individuals to distribute crack cocaine and
find new purchasers.
During trial, the district court actively intervened and questioned
witnesses. Sherrill has identified over 100 questions asked by the
court during Darwin Mobley's testimony. The substance of the ques-
tions involved information mostly related to how the cocaine distribu-
tion process worked. Many were intended to educate the jury
regarding the terms used by the witnesses. The trial judge instructed
the jury three times that they were not to draw any inferences from
the fact that he was asking questions, and he explained that he was
attempting to make the testimony more understandable to laypersons.
Sherrill alleges, however, that the trial court's conduct -- the court's
interrupting of defense counsel during his examination of witnesses,
conducting questioning of government witnesses, and making com-
2
ments in the presence of the jury -- showed partiality in favor of the
government.
Sherrill complains that the judge's questions often elicited informa-
tion that was damaging to him. He cites one exchange between the
judge and the Assistant United States Attorney during defense coun-
sel's cross-examination of a government witness. The judge asked the
prosecution, "[w]hy don't you object to evidence that has nothing to
do with it? You have a duty as an officer of the court." While Sherrill
cites this exchange as evidence of the judge's partiality, he does not
explain how it demonstrates prejudice, as partiality or prejudice are
not clear from this exchange. Sherrill does not point to any other par-
ticular exchange as evidence of partiality or prejudice and instead
cites to the record as a whole.
A claim that district court's behavior deprived a defendant of a fair
trial is reviewed for abuse of discretion. United States v. Castner, 50
F.3d 1267, 1272 (4th Cir. 1995). The district court has the authority
to interrogate witnesses. Fed. R. Crim. P. 614(b). The trial court is
vested with the duty to assist the jury, including"explaining, summa-
rizing, and commenting on the evidence." Seidman v. Fishburne-
Hudgins Educ. Found., Inc., 724 F.2d 413, 417 (4th Cir. 1984).
Absent a high degree of favoritism or antagonism making a fair judg-
ment impossible, a judge's courtroom administration is immune and
does not establish bias or partiality on behalf of the court. Liteky v.
United States, 510 U.S. 540 (1994).
The substance of the questions asked involved information mostly
related to how the cocaine distribution process worked. Many were
intended to educate the jury regarding the terms and measurements
used by the witnesses. While the court did extensively participate in
lines of questioning, especially with the government's key witness,
Darwin Mobley, the questions were not leading, and it does not
appear that the court intended to ask questions that would incriminate
Sherrill.
Twice during examination of witnesses and once during his closing
charge to the jury, the trial judge explicitly instructed the jury that
they were not to draw inferences from the fact that he was asking
3
questions. We find that the court's conduct did not constitute an abuse
of discretion, and Sherrill's right to a fair trial was not violated.
II
During cross-examination, the Assistant United States Attorney
questioned Sherrill about whether he had ever owned a 1979 Mer-
cedes automobile. The government introduced a tax document show-
ing that he owned a "1979 Merc." Sherrill denied ever owning or
knowing about a 1979 Mercedes. During her closing argument, the
Assistant United States Attorney again mentioned the Mercedes. She
said, "[the witnesses] talked about a Mercedes. The defendant yester-
day denied he owned a Mercedes, but he's listed on the tax records
of Iredell County as owning that vehicle." In his closing, defense
counsel explained "that there was absolutely no evidence of any Mer-
cedes driven by Mr. Sherrill. . . . And all of a sudden, [the Assistant
United States Attorney] says there was evidence about a Mercedes.
You saw the form. It says -- it looks like a Mercury to me, M-e-r-c.
I mean, I don't know what that code means."
Sherrill alleges that the questioning by the Assistant United States
Attorney regarding ownership of a 1979 Mercedes and reference to
that line of questioning in her closing argument violated due process
and his right to a fair trial. Defense counsel did not object at the time
of questioning or during the closing argument. Defendant's counsel
discussed the ownership issue in his closing, but did not object to the
references on the record. After trial, but before sentencing, the
defense obtained a motor vehicle record that showed Sherrill had
owned a 1979 Mercury Zephyr.
Because the defense did not object to the statements, we review for
plain error. See United States v. Olano, 507 U.S. 725, 732 (1993).
When reviewing for plain error in the context of alleged prosecutorial
misconduct, we "review the entire proceedings to see if the miscon-
duct undermined the trial's fundamental fairness." United States v.
Adam, 70 F.3d 776, 780 (4th Cir. 1995). We find it did not.
In this case, evidence of Sherrill's drug involvement was over-
whelming. Seven dealers, with whom he had direct involvement, tes-
tified at trial that they had contact and dealings with him regarding
4
cocaine distribution. These witnesses testified that Sherrill sold crack
cocaine in the Tanglewood neighborhood of Charlotte and in sur-
rounding towns. Sherrill's home and pager numbers appeared in Dar-
win Mobley's address book. In addition, three other witnesses
testified that they sold crack cocaine for Sherrill in other areas.
Stray improper remarks by a prosecutor during closing argument,
where evidence of guilt is already strong, are not prejudicial enough
to warrant granting a new trial. See United States v. Harrison, 716
F.2d 1050, 1052-53 (4th Cir. 1983). We hold that the overwhelming
evidence, coupled with Sherrill's failure to demonstrate prejudice,
defeats the claim of plain error.
III
Sherrill also alleges that the court erred in imposing a two-level
firearms enhancement to his base offense level under USSG
§ 2D1.1(b) because the evidence at the sentencing hearing did not
support imposing the enhancement. The standard of review regarding
factual findings by the district court during sentencing is for clear
error. United States v. Melton, 970 F.2d 1328, 1332-33 (4th Cir.
1992).
The commentary to the guidelines states that the enhancement is
appropriate "if the weapon was present." USSG§ 2D1.1(b)(1) com-
ment. (n. 3). At sentencing, the government summarized the trial testi-
mony regarding the use of firearms in the conspiracy. It was stated
that Clinton Henderson observed firearms at Sherrill's residence dur-
ing the time of the conspiracy and testified that other conspirators
always carried weapons during drug deals. The government further
reminded the court that Darwin Mobley, Jesse Mobley, and Paul
Mobley all testified to their use of firearms. Finally, the government
reminded the court that Darwin Mobley testified that he observed a
gun in Sherrill's car. Darwin Mobley testified that Sherrill said that
if the dealer they were waiting for did not have the drugs, he would
kill him. In addition, portions of the Offense Conduct in the Pre-
sentence Report, to which the defense did not object, contained sev-
eral overt acts committed by co-conspirators with firearms and pos-
sessed in furtherance of the conspiracy.
5
An enhancement under USSG § 2D1.1(b) is permissible if posses-
sion of a firearm by a co-conspirator was reasonably foreseeable to
defendant. United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir.
1994). In this case, the possession by Sherrill's co-conspirators was
not only foreseeable, it was well known to him, and there was testi-
mony that he possessed a firearm in connection with a drug deal him-
self. We therefore hold that there was sufficient proof for the district
court to impose the enhancement.
IV
At the sentencing hearing, the government asked for an adjustment
to increase the offense level under USSG § 3B1.1 for Sherrill's role
in the offense as a supervisor or manager. Sherrill objected to the
enhancement and argued that he disagreed with the testimony pres-
ented at trial regarding all persons who claimed to have worked for
him. The district court found a two-level increase appropriate based
upon evidence that Sherrill was a supervisor and manager or orga-
nizer of at least three persons.*
The determination that the defendant was an organizer or leader in
the offense is essentially a factual question reviewable for clear error.
United States v. Sheffer, 896 F.2d 842, 846 (4th Cir.); see United
States v. Smith, 914 F.2d 565, 569 (4th Cir. 1990). The finding must
be articulated and supported by evidence, United States v. Harriott,
976 F.2d 198, 202 (4th Cir. 1992), but the court need only address rel-
evant factors. United States v. Harris, 39 F.3d 1262, 1270 (4th Cir.
1994).
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*Sherrill contends that there is insufficient evidence for an adjustment
under § 3B1.1(b). While the PSR recommended a three-level adjustment
under § 3B1.1(b), the court specifically found Sherrill was a supervisor
or organizer of at least three persons. The enhancement for the supervisor
of at least three persons falls under § 3B1.1(c). Section 3B1.1(c) calls for
a two-level adjustment, compared to the three-level adjustment for the
supervisor or manager of at least five people under§ 3B1.1(b). Although
the court did not specifically state that the enhancement was pursuant to
§ 3B1.1(c), the record demonstrates that the court intended to apply that
section.
6
An enhancement under § 3B1.1 is appropriate if the defendant was
"the organizer or leader, manager, or supervisor of one or more other
participants." USSG § 3B1.1, comment. (n. 3). Enhancements for a
defendant's leadership role in a conspiracy have been applied in
recruitment and control situations, such as where the defendant
recruited another individual to accompany him on a drug purchasing
trip or exercised control over co-conspirators in the distribution of
drugs. United States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992);
Smith, 914 F.2d at 570.
At trial, Darwin Mobley listed at least five people who distributed
drugs for Sherrill. Clinton Henderson testified that he located drug
purchasers for Sherrill, and he and other witnesses named other peo-
ple who sold drugs for him. This evidence overwhelmingly supports
at least a two-level enhancement. At the sentencing hearing, the gov-
ernment restated the testimony regarding the persons that worked for
Sherrill, which we find supports the enhancement imposed.
We therefore affirm Sherrill's conviction and sentence.
AFFIRMED
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