United States v. Aladekoba ( 1997 )

Filed: December 4, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 94-5236(L)
(CR-93-18-WN)
United States of America,
Plaintiff - Appellee,
versus
Adewale Johnson Aladekoba, etc., et al,
Defendants - Appellants.
O R D E R
The Court amends its opinion filed November 17, 1997, as
follows:
On page 2, section 6, line 5 -- "John S. Deros" is added
as counsel for appellants.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5236
ADEWALE JOHNSON ALADEKOBA, a/k/a
Wally, a/k/a Orlando Percival
McGregory, a/k/a Jay Johnson,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5262
ORLANDO DEMON DUGGINS, a/k/a
Curley,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5263
SHAWN HICKMAN, a/k/a Fat Shawn,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5371
VICTOR ADENIYI ALADEKOBA, a/k/a
TJ, a/k/a Paul Anthony Jackson,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-93-18-WN)
Argued: October 3, 1997
Decided: November 17, 1997
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished opin-
ion. Judge Herlong wrote the opinion, in which Chief Judge Wilkin-
son and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Robert J. Mulhern, Newark, Delaware; Douglas James
Wook, Riverdale, Maryland; Stephen James Dunn, Towson, Mary-
land, for Appellants. Jamie M. Bennett, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee. ON BRIEF: Harold I.
Glaser, John S. Deros, Baltimore, Maryland, for Appellants. Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
HERLONG, District Judge:
A jury convicted Adewale Aladekoba ("A. Aladekoba"), Victor
Aladekoba ("V. Aladekoba"), Orlando Duggins ("Duggins"), and
Shawn Hickman ("Hickman") (collectively, "Defendants") of violat-
ing several federal controlled-substances laws. The Defendants raise
various issues on appeal. We find no grounds for reversal among their
challenges to the admissibility of certain evidence, the failure to sever
the case, and the district court's application of the United States Sen-
tencing Guidelines. We agree, however, that the government failed to
prove that V. Aladekoba used a firearm in violation of 18 U.S.C.
§ 924(c)(1), as charged in Count Six of the indictment. Accordingly,
we vacate the conviction under that single count and affirm on all
remaining counts.
I.
The Defendants in this case were members of a drug organization
that distributed heroin throughout public housing projects in Balti-
more, Maryland. A. Aladekoba ran the drug ring with Duggins and
Hickman directing the sale of drugs as his lieutenants. V. Aladekoba
assisted in transporting drugs to Baltimore for sale.
The evidence presented stemmed from a number of seizures of
drugs, guns, and money from the Defendants. A number of witnesses
told of the inner workings of the group and the group's tactics in run-
ning the ring and controlling the area. The primary seizures involved
evidence recovered on August 15, 1992. On that date, A. Aladekoba
was stopped by a Baltimore City Police Officer. The stop led to
recovery of a sheathed weapon and handgun from the car. Thereafter,
a safe containing guns, heroin, cash, and ammunition was recovered
from a "stash house"1 controlled by A. Aladekoba. Later the same
_________________________________________________________________
1 In this case, the "stash house" was a room within the housing projects
where the conspirators kept items used during the conspiracy: drugs,
3
day, more drugs and a firearm were recovered from V. Aladekoba's
apartment.
To further support its charges, the government presented acts of
violence which were allegedly committed in furtherance of the con-
spiracy. Particularly, the jury heard testimony regarding the murder
of Alexander Morrison ("Morrison"). One gun found in the stash
house safe proved to be the weapon used in Morrison's murder, and
testimony linked Duggins to the murder. Furthermore, the govern-
ment put forth evidence that members of the drug conspiracy fire-
bombed a police car and publicly battered an individual. The govern-
ment supplemented this evidence with testimony from others within
the drug ring who testified as to the distribution of drugs and use of
firearms by the Defendants. Further testimony linked Hickman and
Duggins to various drug sales for the same Aladekoba organization
dating back to 1991.
Following a five-week trial, all of the Defendants involved in this
case were convicted of conspiracy to possess heroin with the intent
to distribute. The jury found the Defendants guilty of other individual
drug and firearm charges. One defendant, Mayo Bennett, was acquit-
ted of all charges.
Federal subject matter jurisdiction over this case is grounded in the
statutes defining the various offenses and is not contested. This court
finds appellate jurisdiction under 28 U.S.C. § 1291. We address the
facts and standards of review in the relevant portions of the opinion.
II.
A. V. Aladekoba's Firearm Charge
The vacation of V. Aladekoba's conviction for use of a firearm in
drug trafficking in light of Bailey v. United States, ___ U.S. ___, 116
S.Ct. 501 (1995), is a legal question and is reviewed de novo. United
States v. King, 119 F.3d 290, 293 (4th Cir. 1997).
_________________________________________________________________
weapons, and money. See United States v. D'Anjou , 16 F.3d 604, 607
(4th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 2754 (1994).
4
V. Aladekoba's conviction for use of a firearm in connection with
a drug trafficking offense is not supported by the facts. In Count Six
of the indictment, the government charged V. Aladekoba with use of
a firearm in violation of 18 U.S.C. § 924(c)(1).2 The United States
Supreme Court recently held that "[a] defendant cannot be charged
under [18 U.S.C.] § 924(c)(1) merely for storing a weapon near drugs
or drug proceeds. . . . Storage of a firearm, without its active employ-
ment, is not distinguishable from possession." Bailey at ___, 116 S.Ct.
at 508. The jury convicted V. Aladekoba of using a firearm under this
provision. While investigations into the drug conspiracy found a gun
in his apartment, there was no evidence V. Aladekoba used this gun
during the conspiracy under the Bailey definition. The Government
concedes that there was no evidence that the gun was actively
employed in this manner. However, V. Aladekoba's mere possession
of the handgun may affect his sentence. U.S.S.G. § 2D1.1(b)(1);
United States v. Hillary, 106 F.3d 1170, 1173 (4th Cir. 1997). Thus,
we reverse the conviction under Count Six and remand the case to the
trial court to determine if a new sentence is necessary.
B. Admissibility of Evidence
1. Admission of Murder Evidence
The decision to admit evidence is reviewed for an abuse of discre-
tion. United States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997). The
evidence is viewed in the light most favorable to its proponent, maxi-
mizing the probative value and minimizing any prejudicial effect.
United States v. McManus, 23 F.3d 878, 882 (4th Cir. 1994), cert.
denied, ___ U.S. ___, 116 S.Ct. 1839 (1996).
a. Prejudicial effect as to all Defendants
The Defendants argue that the district court abused its discretion in
_________________________________________________________________
2 18 U.S.C. § 924(c)(1) reads, in pertinent part:
Whoever, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, shall, in addition
to the punishment provided for such crime of violence or drug
trafficking crime, be sentenced to imprisonment for five years.
5
admitting evidence of a murder allegedly committed by Duggins upon
the order of A. Aladekoba. They contend that an overt act is not nec-
essary to a charge of conspiracy and, therefore, it was not relevant to
the government's case. FED. R. EVID. 401-02. Furthermore, the Defen-
dants argue that even if the evidence was relevant, it was more preju-
dicial than probative. See FED. R. EVID. 403. The government counters
that the evidence directly supported charges against Duggins and A.
Aladekoba that they used a firearm in connection with drug traffick-
ing. Also, the government argues that the evidence linked Duggins
inextricably with the conspiracy. The government finally contends
that the evidence presented showed that Duggins committed the mur-
der in furtherance of the conspiracy.
The district court did not abuse its discretion in admitting the mur-
der evidence. A trial court may admit evidence that does not directly
establish an element of the offense charged, in order to "complete the
story of the crime on trial." United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 939 (1995).
Under this analysis, evidence of an uncharged murder is admissible
if it is "part-and-parcel of the criminal enterprise." United States v.
Chin, 83 F.3d 83, 88 (4th Cir. 1996). The government presented evi-
dence that Duggins acquired a gun of the same type used in the mur-
der. Furthermore, the government also submitted testimony that A.
Aladekoba surrendered control of the gun to various individuals.
Finally, a witness testified that Duggins committed the murder and
left the scene in a car with A. Aladekoba. The government also pres-
ented evidence that the gun was used before and after the murder in
different conspiracy activities. This evidence was admissible as a part
of the vast activity associated with the conspiracy.
Even if this evidence was not relevant, its admission was, at most,
harmless error. The Defendants cite United States v. Murray, 103
F.3d 310 (3d Cir. 1997), as authority that the district court should
have disallowed the murder evidence. In Murray, the United States
Court of Appeals for the Third Circuit held that admission of prior
murder evidence was not admissible in a subsequent murder trial. Id.
at 320. However, the court went on to find: "In contrast, we believe
that the erroneous admission of Stukes' testimony [concerning the
murder] was harmless with respect to the drug charges." Id. Thus, the
erroneous admission of the prior murder evidence only reversed the
6
pending murder conviction. The court noted that the drug conspiracy
charges were not affected because of the Government's "substantially
stronger evidence in support of the drug charges." Id. Similarly, in
this case, the government presented strong evidence of the drug con-
spiracy. It is not likely that the jury was influenced by the murder evi-
dence. Therefore, at most, any error by the district court was
harmless.
b. Character evidence as to Duggins
The Defendants further object to the admission of the murder evi-
dence in regard to Duggins. Evidence of prior crimes or bad acts is
not admissible to prove the defendant's bad character. FED. R. EVID.
404(b). The Defendants argue that the murder is particular evidence
of Duggins' character because he is the one specifically named as the
culprit. However, the evidence is still admissible under this challenge
using the above analysis. See Chin, 83 F.3d at 88. Thus, the district
court did not err in admitting the evidence of the Morrison murder.
2. Admission of Firebombing/Beating Evidence
This Court reviews a trial court's ruling on a motion for mistrial
under the abuse of discretion standard. United States v. Ford, 88 F.3d
1350, 1361 (4th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 496(1996).
The district court did not abuse its discretion in refusing to grant
a mistrial. A criminal defendant deserves a mistrial only if he was
prejudiced by the trial proceedings. United States v. Hayden, 85 F.3d
153, 157 (4th Cir. 1996). The Defendants claim that they suffered
prejudice from testimony regarding the firebombing of a police vehi-
cle and the public beating of an individual. Though implicitly attri-
buted to some of the Defendants, the Government did not
unequivocally link these incidents to the Defendants. While there was
significant testimony regarding the bombing, the beating evidence
consisted of only a few questions of one witness. In light of the sub-
stantial evidence presented in this five-week trial, the trial court sim-
ply instructed the jury to disregard this evidence and later denied a
request for a mistrial.
7
This court considers four factors in determining whether prejudice
warrants a mistrial: (1) whether the verdict showed the jury could
make an individualized determination of guilt; (2) whether the court
scrutinized the manner in which the evidence reached the jury; (3)
whether the state of the record and extent of evidence against the
defendant supports the verdict; and (4) whether proper curative
instructions were given by the trial court. United States v. Dorsey, 45
F.3d 809, 817-18 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct.
2631 (1995). If these factors are satisfied, there is no abuse of discre-
tion.
The jury demonstrated its ability to make individualized determina-
tions by acquitting one of the Defendants, Mayo Bennett. The trial
court also scrutinized the evidence of this case. While evidence of the
firebombing was presented, the Defendants claim that the government
never connected them with this evidence. The government's witness,
Reginald Jones, was prepared to make the connection. However,
because of other testimony Jones may have given regarding A.
Aladekoba, counsel for A. Aladekoba moved to exclude Jones' testi-
mony. After the district court tentatively granted the motion, the gov-
ernment withdrew Jones as a witness. Thus, no link was made. This
effort by the district court demonstrates that it scrutinized all evidence
that went before the jury.
Furthermore, as stated above, the trial record is replete with evi-
dence against the Defendants. The evidence before the jury clearly
supported the verdict. Finally, the trial court gave a thorough curative
instruction. The court instructed the jury to disregard the evidence of
the firebombing and the beating. Considering the length of the trial
and the amount of evidence presented, it was not an abuse of discre-
tion for the court to give these curative instructions and refuse the
Defendants' request for a mistrial.
3. Search of A. Aladekoba's Vehicle
The Defendants do not challenge any facts or inferences concern-
ing the vehicle search. They challenge only the legal finding of proba-
ble cause and reasonable suspicion. Accordingly, we review this issue
de novo. Ornelas v. United States, ___ U.S. ___, ___, 116 S.Ct. 1657,
1659 (1996).
8
The district court did not err in admitting evidence seized from
defendant A. Aladekoba's car following a traffic stop. A traffic stop
by a police officer is a seizure under the purview of the Fourth
Amendment. Whren v. United States, ___ U.S. ___, ___, 116 S.Ct.
1769, 1772 (1996). A vehicle is subject to a traffic stop if an officer
has a "reasonable articulable suspicion" that criminal activity is taking
place. Smith v. Ohio, 494 U.S. 541, 542 (1990); Terry v. Ohio, 392
U.S. 1, 20 (1968). In this court, "reasonable suspicion" is "a common-
sensical proposition . . . crediting the practical experience of officers
who observe on a daily basis what transpires on the street." United
States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993). The objective
standard is whether a reasonable police officer could have stopped the
vehicle for an articulable suspicion. Whren, ___ U.S. at ___, 116 S.Ct.
at 1772. Of course, any evidence obtained from a traffic stop in viola-
tion of the Fourth Amendment would be inadmissible as "fruit of the
poisonous tree." Wong Sun v. United States, 371 U.S. 471, 484
(1963).
In this case, it is clear the officer had a reasonable articulable suspi-
cion prior to stopping A. Aladekoba's vehicle. At 1:00 a.m. on
August 15, 1992, the officer received a call reporting a suspicious
black vehicle with two males on East Baltimore Street. The report
gave a specific license plate number. When the officer reported
immediately to this street, he saw a black vehicle occupied by two
men fitting the given description. Though the license plate number
did not match the one reported, the officer continued to follow the
vehicle. He reported that the occupants seemed nervous and continued
to look back at the police "paddy wagon" while circling the block. At
one point, they failed to stop completely at a stop sign and turned
without signaling. The car made several turns and then attempted to
enter Interstate Highway 83. The officer stopped the vehicle on the
ramp leading to the highway. The Defendants contend this scenario
does not constitute an articulable reasonable suspicion. While we dis-
agree with the Defendants' position, this determination is not neces-
sary due to A. Aladekoba's conduct following the traffic stop.
Even if no reasonable suspicion existed, the arrest of A. Aladekoba
and resulting search of his vehicle was permissible. The exclusionary
rule is inapplicable when the nexus of the illegal police activity and
the attainment of the evidence is sufficiently attenuated so that any
9
taint from the illegality is removed. Wong Sun, 371 U.S. at 417. Fol-
lowing the stop, A. Aladekoba failed to get out of the vehicle. He then
allegedly attempted to assault the officer. After being maced by the
officer, Aladekoba fled from the car and the officer. During the chase,
A. Aladekoba stopped, drew his gun, and turned to fire on the officer.
The officer fired and hit A. Aladekoba, injuring him. The car was
searched after this incident. A. Aladekoba's conduct following the
initial stop constituted sufficient probable cause for his arrest.
Accordingly, even if the stop were illegal, A. Aladekoba's behavior
attenuated the taint of any illegality in the initial stop. See United
States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990) (citing cases
where flight following initial illegal traffic stop attenuated any taint).
Thus, the arrest of A. Aladekoba and resulting search of his car were
proper.
4. Proof of Prior Drug Conviction of Hickman
The Court reviews a district court's determination as to admissibil-
ity of evidence under an abuse of discretion standard. United States
v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).
Hickman's prior conviction was properly admitted into evidence.
Hickman was convicted in Baltimore state court of possession of cer-
tain drugs found in a Baltimore apartment on July 3, 1991. Drugs
seized from the same apartment were used as evidence to support the
conspiracy charge.3 Evidence of other crimes or acts may not be
admitted to show a defendant's character. FED. R. EVID. 404(b). As
with all evidence, evidence of such prior crimes must not be more
prejudicial than probative. FED. R. EVID. 403. Though Hickman
argues this was inadmissible character evidence, the government con-
tends that this was direct evidence of the conspiracy charge against
Hickman. We agree that the conviction showed that Hickman pos-
sessed the same drugs that were involved in the conspiracy. As such,
the conviction was direct evidence in support of the charged crime
and, thus, was not an attempt to attack his character. However, we
find that the prior conviction was admissible even under Rule 404(b).
_________________________________________________________________
3 The conspiracy charge encompassed a period from June 1991 to
August 1992. (Appellants' J. Br. at 40.)
10
A criminal defendant's prior acts are admissible under Rule 404(b)
if they are "(1) relevant to an issue other than character; (2) necessary;
and (3) reliable." Sanchez, 118 F.3d at 195. This court gives these ele-
ments an inclusive interpretation. Id. Hickman's prior drug charge
was relevant to his knowledge of the drug trade. See id. It also was
a necessary part of the government's case against Hickman. Due to
the mass of evidence against the Defendants, including Hickman, the
government needed to show that the conspiracy was not the work of
novices. Finally, a prior conviction from a state court is inherently
reliable. Therefore, the district court properly relied on the prior con-
viction.
The Defendants also assert that the evidence of Hickman's prior
crime was more prejudicial than probative. Courts must exclude evi-
dence if its prejudicial effect substantially outweighs its probative
value. FED. R. EVID. 403. The prior conviction evidence was probative
as a necessary link between Hickman and the apartment where police
seized the conspiracy's drugs. Any prejudicial effect against Hickman
was minimal and did not outweigh the probative value of the evi-
dence. Thus, the district court properly admitted the prior conviction
evidence.
C. Severance of Hickman's Charges
We review a district court's denial of a motion for severance under
an abuse of discretion standard. United States v. Ford, 88 F.3d 1350,
1361 (4th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 496 (1996).
The district court did not abuse its discretion in refusing to sever
the trial. Hickman was charged with one count in the multi-count
indictment: the primary conspiracy charge. Severance is required
where a defendant is prejudiced by a joint trial, as justice requires.
FED. R. CRIM. PRO. 14. This judicial determination should weigh
potential prejudice against the interests of judicial economy. United
States v. Samuels, 970 F.2d 1312, 1314 (4th Cir. 1992). Under this
analysis, Hickman's case was properly tried with the other conspiracy
Defendants.
Several principles show Hickman's trial was proper. First, Defen-
dants who are indicted together should be tried together. United States
11
v. Hall, 93 F.3d 126, 131 (4th Cir. 1996), cert. denied, ___ U.S. ___,
117 S.Ct. 1087 (1997). The importance of this point is emphasized for
Defendants who participated in the same conspiracy. United States v.
Tipton, 90 F.3d 861, 883 (4th Cir. 1996). The defendant who seeks
severance must show that his joint trial would so prejudice him "that
a miscarriage of justice would result." United States v. Williams, 10
F.3d 1070, 1080 (4th Cir. 1993), cert. denied, 513 U.S. 926 (1994).
While Hickman claims he was only a minor player, witnesses testified
he was a "main lieutenant" in charge of one of the buildings under the
drug ring.
Other factors warranted a joint trial. The conspiracy charges took
five weeks to try and involved two dozen witnesses. A separate trial
for Hickman would have required presenting much of this evidence
a second time. See Zafiro v. United States, 506 U.S. 534, 537 (1993)
(efficiency important factor for joint trials). Furthermore, in acquitting
one of the original defendants, the jury showed the absence of preju-
dice. See Ford, 88 F.3d at 1361 (noting lack of prejudice in a joint
trial where jury acquitted some defendants). Thus, the district court
did not abuse its discretion in denying Hickman's motion to sever.
D. District Court's Sentencing
We review a sentencing court's decisions regarding drug quantities
for clear error. United States v. Fletcher, 74 F.3d 49, 55 (4th Cir.),
cert. denied, ___ U.S. ___, 117 S.Ct. 157 (1996). Determinations
about roles in crimes involve an application of the guidelines to the
facts, and those determinations are consequently reviewed for clear
error. United States v. Daugherty, 874 F.2d 213, 214 (4th Cir. 1989).
1. V. Aladekoba's base level
V. Aladekoba argues that the district court erred in attributing the
entire amount of drugs distributed by the conspiracy, between 10 and
30 kilograms, to him as a base level for sentencing. Under the United
States Sentencing Guidelines for sentences involving joint criminal
activity, the base offense level is determined on the basis of all rea-
sonably foreseeable acts and omissions of others in furtherance of the
joint activity. U.S.S.G. § 1B1.3(a)(1)(B); United States v. McHan,
101 F.3d 1027, 1043 (4th Cir. 1996). V. Aladekoba argues that the
12
district court improperly attributed all of the conspiracy's drugs to his
sentence based on his conspiracy conviction. This is not the case.
During the sentencing phase of the case, District Judge Nickerson
noted his reasoning for V. Aladekoba's sentence:
[The total drug amount attributed to V. Aladekoba] related
to the evidence regarding the size of the operation . . . , the
fact there were gunmen, . . . safehouses, lieutenants, . . . life-
style situations involving luxury apartments, cars, . . . 2,000-
capsule deliveries a couple of times a week, an operation
going on for about 13 months. These were at least among
the evidentiary matters that I determined indicated to me
that a 10- to 30-kilogram amount was a conservative
amount. It certainly is supported by a preponderance of the
evidence.
(J.A. at 1015-16.) Thus, the district judge properly attributed specific
conspiracy activities to V. Aladekoba in determining his base amount.
The court acted within its discretion in determining V. Aladekoba's
base level for sentencing.
2. V. Aladekoba's increase for role in conspiracy
V. Aladekoba's increased sentence was proper. Under the Sentenc-
ing Guidelines, a sentence may be enhanced when the defendant plays
an "aggravating role" in the crime. U.S.S.G. § 3B1.1. Specifically,
enhancement is warranted where the defendant is an "organizer,
leader, manager, or supervisor in any criminal activity." Id. Prior to
V. Aladekoba's sentencing, the United States Sentencing Commission
ruled that enhancement under this section requires management of
people, not mere "assets." Id. at Application Note 2 (effective Nov.
1, 1993). V. Aladekoba claims there was no testimony or evidence to
show that he directed any people in the conspiracy. The government
agrees with this standard. However, it argues that there is ample evi-
dence showing V. Aladekoba's control of others in the drug ring.
V. Aladekoba's primary role was in packaging and distributing her-
oin capsules. To accomplish this task, there was evidence that he
directed a female accomplice, Fidelia, in this job. Furthermore, the
government informant, Alan Webb, testified that V. Aladekoba
13
instructed Webb to transport heroin to Baltimore where it was to be
sold. Aside from these instances of control over people, V. Aladekoba
wielded wide control over many aspects of the conspiracy. He over-
saw shipments of luxury cars from Nigeria, and he instructed Webb
to launder large sums of money for travel purposes. From this evi-
dence, it is clear that V. Aladekoba supervised people and assets, war-
ranting the increased sentence. Accordingly, the district court
committed no error in this sentencing.
3. Duggins' sentence
Duggins contests his sentence on three separate grounds. He ini-
tially claims the trial court erred in basing the sentence on the murder
evidence because it was irrelevant conduct. Duggins also maintains
that use of the murder evidence in his sentencing violated the Due
Process clause of the Fourteenth Amendment. Finally, Duggins
argues the district court attributed an improper amount of heroin to
his sentence.
a. Murder as irrelevant conduct
The court did not commit clear error in considering the murder evi-
dence. A sentencing court may rely upon any information in deter-
mining where, within the appropriate guideline range, a defendant
may be sentenced. 18 U.S.C. § 3661. Furthermore, the court may con-
sider any relevant and reliable evidence when sentencing, including
hearsay. United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
The admissibility of the murder evidence has already been discussed.
Thus, because Duggins' sentence was within the statutory guideline
for his conspiracy conviction,4 the specific factors considered in
reaching that sentence do not constitute clear error.
_________________________________________________________________
4 The guidelines indicated Duggins was to be sentenced at a base level
of 262-327 months for the amount, upon which a mandatory minimum
of 60 months was to be added for the conspiracy charge. (J.A. at 998.)
He was sentenced to 360 total months, well within the guideline maxi-
mum of 387 months.
14
b. Murder evidence as violation of due process
Duggins further claims that basing his sentence, in part, on the
murder charge violated his rights under the Fourteenth Amendment.
As noted above, once Duggins was convicted of the conspiracy, the
judge may use any factor to determine sentencing within the guide-
lines. The admissibility of the murder evidence, as already discussed,
was proper. Thus, the district court properly considered the murder
evidence in sentencing Duggins.
Furthermore, Duggins incorrectly asserts his constitutional rights.
The Due Process clause of the Fourteenth Amendment, in pertinent
part, reads: "nor shall any State deprive any person of life, liberty, or
property without due process of law." U.S. CONST. amend. XIV, § 1.
This amendment protects individuals from actions by the states, not
the Federal Government. Accordingly, "actions of the Federal Gov-
ernment and its officers are beyond the purview of the [Fourteenth]
Amendment." District of Columbia v. Carter, 409 U.S. 418, 423-24
(1973). It is the Due Process clause of the Fifth Amendment that
defends citizens from unconstitutional abuse by the Federal Govern-
ment. U.S. CONST. amend. V. Thus, Duggins' due process challenge
under the Fourteenth Amendment is unfounded.
In this same vein, Duggins also challenges the credibility of the
witnesses who implicated him in the Morrison murder. The trial
court's consideration of the testimony at trial was not clear error. The
appellate courts must "give due regard to the opportunity of the dis-
trict court to judge the credibility of the witnesses." 18 U.S.C.
§ 3742(e). Furthermore, the credibility of witnesses is a determination
for the jury, not the appellate courts. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989); see also Bell v. Evatt, 72 F.3d 421, 435
(4th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2533 (1996).
The district judge was fully warranted in relying on this testimony
following a jury's consideration and verdict of guilty.
c. Duggins' base level
Duggins argues that the district court should not have attributed all
drugs involved in the conspiracy to his base level. Duggins was pres-
ent for only four of the thirteen months in which the conspiracy took
15
place. For jointly undertaken criminal activity, the Sentencing Guide-
lines instruct that a defendant's base offense level shall be based upon
"all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)
(1)(B). Thus, "drug conspirators should be punished in a manner com-
mensurate with the scale of the conspiracy, rather than their personal
participation in the conspiracy." United States v. Campbell, 935 F.2d
39, 45 (4th Cir.), cert. denied, 502 U.S. 929 (1991).
Duggins bases his argument primarily on the time he was involved
in the conspiracy. This is of no consequence. Under the above prece-
dent, an entire conspiracy's drug inventory may be applied to each
individual in the conspiracy for sentencing. Duggins' involvement
with the conspiracy, however short, revealed to him the vast expanse
of this drug empire. The full amount of the drugs attributed to Dug-
gins was reasonably foreseeable for someone with his detailed knowl-
edge of the conspiracy's activities. In considering this point, the
Seventh Circuit held that "conduct of co-conspirators -- even past
conduct -- can be considered `reasonably foreseeable' to a particular
defendant if that defendant has demonstrated a substantial degree of
commitment to the conspiracy's objectives." United States v.
Edwards, 945 F.2d 1387 (7th Cir. 1991), cert. denied sub nom. Mar-
tin v. United States, ___ U.S. ___, 112 S.Ct. 1590 (1992). Thus, it was
not clear error for the district court to apply the drug ring's entire
inventory when sentencing co-conspirator Duggins.
III.
The only meritorious issue on appeal is V. Aladekoba's firearm
charge under 18 U.S.C. § 924(c). Under Bailey, the district court
improperly allowed the conviction of V. Aladekoba under Count Six
to stand. Thus, we vacate this portion of the case and remand for
reconsideration of the sentencing of V. Aladekoba in accordance with
this opinion. Finding no other reversible error, we affirm on all
remaining counts.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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