United States v. Davis , 67 F. App'x 771 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4776
ROBERT HENRY DAVIS, a/k/a Pops,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4777
CLEVELAND DARNELL COPELAND,
a/k/a Heavy D, a/k/a Darnell,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4858
JOHN DILLARD,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-00-424-PJM)
Argued: January 24, 2003
Decided: May 7, 2003
2 UNITED STATES v. DAVIS
Before WILKINS, Chief Judge, WIDENER, Circuit Judge,
and Morton I. GREENBERG, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Frederick James Sullivan, Bowie, Maryland, for Appel-
lant Davis; Thomas J. Saunders, Baltimore, Maryland, for Appellant
Dillard; Timothy S. Mitchell, Greenbelt, Maryland, for Appellant
Copeland. Mythili Raman, Assistant United States Attorney, Green-
belt, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio,
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Defendants Robert Henry "Pops" Davis, John Dillard, and Cleve-
land Darnell "Heavy D" Copeland (defendants) appeal the judgment
of the United States District Court for the District of Maryland in
which the jury convicted defendants of conspiring to distribute and
possessing with intent to distribute more than five kilograms of
cocaine and more than fifty grams of cocaine base (crack) in violation
of 21 U.S.C. § 846 (Count 1). In addition, the jury convicted Robert
Henry Davis (Pops) of possession with intent to distribute more than
five kilograms of cocaine and more than fifty grams of crack (Count
III), in violation of 21 U.S.C. § 841(a), and convicted John Dillard of
UNITED STATES v. DAVIS 3
possession of firearms in furtherance of a drug trafficking crime
(Count Six) in violation of 18 U.S.C. § 924(c). Defendants raise
numerous assignments of error. Finding no reversible error, we affirm
the judgment of the district court.
I.
The grand jury returned a second superceding indictment charging
numerous persons, including defendants, of various federal crimes
relating to their roles in a drug trafficking conspiracy occurring
approximately between December 1997 and August 2000. Defendants
pleaded not guilty and proceeded to trial. On June 28, 2001, after a
thirteen-day trial, the jury returned a verdict of guilty on all counts.
The government’s evidence at trial showed as follows. Ronald Dil-
lard operated a large-scale drug trafficking organization in the Mary-
land area. During the 1990’s, Ronald Dillard obtained much of his
cocaine supply from defendant Robert "Pops" Davis or one of Pops’
associates. The persons helping Pops to transport and distribute drugs
from Miami included his sons, Robert Craig and Roshawn Davis,
Pops’ sister, Mrs. Sarah Carter, and Pops’ associate, Dietrich Forbes
(collectively Davis group). Witnesses testified that in the mid 1990’s,
Pops began making monthly trips to the Maryland area in vehicles
equipped with hidden compartments containing illegal drugs. Mrs.
Carter’s Maryland residence served as a drop-off point for persons,
including Ronald Dillard, to make drug payments and take possession
of drugs sold by the Davis group.
After purchasing large quantities of drugs from the Davis group,
Ronald Dillard sold the drugs for further redistribution by his asso-
ciates, including defendants John Dillard and Cleveland Darnell
"Heavy D" Copeland (Copeland), brothers who jointly owned and
operated Threadz Sportz store. Intercepted telephone calls and video
surveillance revealed that John Dillard and Copeland used the
Threadz Sportz store as a front for drug distribution. In addition,
recorded conversations intercepted from the Threadz Sportz store
confirmed that John Dillard inquired when Ronald Dillard’s next sup-
ply of cocaine from the Davis group would arrive. Testimony also
established that Copeland, in addition to purchasing cocaine from
4 UNITED STATES v. DAVIS
Pops indirectly, also purchased cocaine directly from Pops’ associate,
Dietrich Forbes.
On August 18, 2000, DEA agents obtained search warrants to
search Mrs. Carter’s Maryland residence and Pops’ 1995 blue Chev-
rolet conversion van. Pursuant to the search warrants, DEA agents
retrieved more than eight kilograms of cocaine in secret compart-
ments of the blue van and more than $140,000 in cash from Mrs. Car-
ter’s residence. On August 23, 2000, the DEA searched Threadz Sport
store and discovered a stolen semiautomatic weapon and a box of
ammunition.
II.
Defendants first contend that the district court erred in refusing to
define reasonable doubt for the jury. This court has "consistently and
vigorously condemned the attempts of trial courts to define reason-
able doubt." United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994).
We decline defendants’ invitation to reconsider the precedent of this
circuit.
Additionally, defendants allege that the district court erred by pro-
viding the jury a preponderance of the evidence standard applicable
to the forfeiture count, when it did not define the reasonable doubt
standard. Defendants failed to object to the preponderance instruction
given to the jury or request bifurcation of the criminal and forfeiture
phases of the trial, and thus we review for plain error. Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
Jury instructions are not evaluated in isolated segments, but are
considered as a whole. See United States v. Cropp, 127 F.3d 354, 360
(4th Cir. 1997). The district court repeatedly informed the jury that
the government had to prove defendants’ guilt on the criminal counts
beyond a reasonable doubt, and specifically instructed the jury that
the preponderance of evidence standard applied only to the forfeiture
count. Taken as a whole, no reasonable jury could have confused the
two standards, and the instruction did not constitute error, plain or
otherwise.
UNITED STATES v. DAVIS 5
III.
Defendants John Dillard and Copeland contend that the district
court erred by refusing to give a tendered multiple conspiracies
instruction. To be entitled to a multiple conspiracies instruction, the
evidence at trial must show that the defendants were "involved only
in separate conspiracies unrelated to the overall conspiracy charged
in the indictment." United States v. Kennedy, 32 F.3d 876, 884 (4th
Cir. 1994) (citations and quotes omitted) (italics in Kennedy).
We have examined that record and find that the government pre-
sented ample evidence linking Dillard and Copeland to the charged
conspiracy. Furthermore, Dillard and Copeland failed to point to any
evidence demonstrating that they were involved only in a separate
conspiracy unrelated to the Davis-Dillard conspiracy. Accordingly,
the district court did not err in refusing to give a multiple conspiracies
instruction.
IV.
Pops maintains that the district court erred by failing to instruct the
jury that constructive possession requires proof that the defendant had
both the power and intent to exercise control over an object. The
defendant argues that the instructions given by the district court
required the jury to find merely that Pops had the ability, but not the
intent, to possess cocaine to establish constructive possession.
We need not decide whether the constructive possession charge
given by the district court created ambiguity as to the intent require-
ment because any alleged defect in the instruction could not have
resulted in unfair prejudice to Pops. The evidence of Pops’ actual pos-
session of the drugs in this case is incontrovertible. Numerous wit-
nesses testified that Pops personally transported drugs from Miami to
Maryland in custom equipped vehicles, and when police arrested Pops
and searched his van on August 30, 2000, they discovered drugs hid-
den inside a secret compartment. Any deficiency in the constructive
possession instruction could not have caused defendant substantial
prejudice. United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996).
6 UNITED STATES v. DAVIS
V.
Pops contends that the district court erred in admitting, pursuant to
Rule 801(d)(2)(E) of the Federal Rules of Evidence, hearsay testi-
mony detailing Pops’ drug trafficking activities prior to the charged
conspiracy.
During the trial, the government introduced testimony by Gary
Lyles that while working for campus security at Howard University
in the late 1980’s, Lyles sold drugs supplied to him by Robert Craig
Davis, son of Pops Davis. Lyles testified that during this time, he
learned who was supplying Robert Craig Davis with drugs. Over
defendant’s objection, Lyles testified that Robert Craig Davis told
him that his father, defendant Pops Davis, was his cocaine supplier.
The government maintains that Lyles’ testimony about statements
made by Robert Craig Davis in the 1980’s falls within the coconspira-
tor hearsay exception because the statements were made by an
uncharged "coconspirator of a party during the course and in further-
ance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). In federal con-
spiracy trials, the hearsay exception allows evidence of an out-of-
court statement of one conspirator to be admitted against his fellow
conspirators only if the statements were those that "must be made in
furtherance of the conspiracy charged." Krulewitch v. United States
336 U.S. 440, 442 (1949). While the government may have shown
that Robert Craig Davis was an uncharged conspirator in the Davis-
Dillard conspiracy, we do not agree that it established that the chal-
lenged statements were made in furtherance of the conspiracy charged
in the indictment.
The conspiracy for which Pops Davis was tried began "in or about
December 1997." The statements challenged by defendant were made
in the late 1980’s, some eight or so years prior to the conspiracy dates
charged in the indictment. While Lyles’ testimony indicated that Pops
and Robert Craig Davis were involved in drug trafficking in the
1980’s, Lyles was imprisoned in 1989 for 16 months and did not
reenter the drug trade until approximately 1992. Therefore, Lyles’ tes-
timony did not establish that Pops and Robert Craig’s earlier drug
trafficking activities were part of an ongoing and uninterrupted drug
conspiracy which continued until 2000. Moreover, the government
UNITED STATES v. DAVIS 7
failed to present other evidence linking the Davises’ activities in the
1980’s to the drug conspiracy charged in the indictment. Because the
government did not establish an ongoing conspiracy spanning from
the 1980’s to 2000, we cannot conclude that statements made in the
1980’s that Pops was Robert Craig Davis’ drug supplier were made
in furtherance of the charged conspiracy, and accordingly, the district
court should have excluded the statements as inadmissible hearsay
under Krulewitch.
Having concluded that the district court improperly admitted the
challenged statements over defendant’s objection, we next must deter-
mine whether this error entitles defendant to a new trial. The constitu-
tion mandates that a defendant is entitled to "a fair trial but not a
perfect one," Lutwak v. United States, 344 U.S. 604, 619 (1953), and
the error must be disregarded under harmless error review if it "does
not affect substantial rights." Fed. R. Crim. Proc. 52(a); United States
v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). "[I]n order to find a dis-
trict court’s error harmless, we need only be able to say ‘with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substan-
tially swayed by the error.’" Brooks, 111 F.3d at 371 (citations omit-
ted).
The government presented ample evidence of Pops’ participation
and leadership role in the charged conspiracy including seizure of
cocaine from the hidden compartment of Pops’ van, wiretap conversa-
tions indicating that Pops regularly transported cocaine from Florida
to Maryland, and testimony by Pops’ sister, Mrs. Carter, and Pops’
son, Roshawn Davis, confirming Pops’ involvement in the drug con-
spiracy. Upon review of the entire record, we conclude that it is
unlikely that the jury’s verdict was affected by the hearsay testimony,
and therefore, the error was harmless. We are also of opinion that the
refusal to set aside the verdict in this case is not inconsistent with sub-
stantial justice. Cf. Fed. R. Civ. Proc. 61 & advisory committee’s
note; Fed. R. Crim. Proc. 52 & advisory committee’s notes.
VI.
Pops argues that the district court erred in denying his motion to
suppress evidence because the search warrants were not supported by
8 UNITED STATES v. DAVIS
probable cause, the warrants contained only generalized descriptions
of the items law enforcement sought, and the searches were con-
ducted after the warrant was executed but while the warrant itself was
not on the premises. Our review of the record reveals sufficient evi-
dence existed to support a finding of probable cause for the issuance
of the search warrants. Specifically, the affidavit in support of the
warrants’ referral to (1) information from proven reliable confidential
informants that Ronald Dillard’s drug supplier was Pops and that
Pops used a blue van with hidden compartments to transport drugs
from Miami to Maryland; (2) intercepted telephone calls indicating
that Pops was supplying drugs to the Dillard group; and (3) physical
surveillance of the Suitland Road address at which the blue conver-
sion van was observed. The record contains substantial evidence to
support the magistrate’s decision to issue the warrants, and the district
court did not err in denying the motion to suppress.
Defendant also argues that the warrant obtained to search the Suit-
land Road apartment was facially deficient because it contained only
a generalized description of property to be seized. The Fourth
Amendment provides that a search warrant must "particularly
describ[e] the place to be searched, and the persons or things to be
seized." U.S. Const. amend. IV. The test for the necessary particular-
ity of a search warrant is "a pragmatic one: The degree of specificity
required when describing the goods to be seized may necessarily vary
according to the circumstances and type of items involved." United
States v. Torch, 609 F.2d 1088, 1090 (4th Cir. 1979) (internal quota-
tion marks omitted). We give discretion to the officers executing a
search warrant, so long as the warrant "confines the executing offi-
cers’ discretion by allowing them to seize only evidence of a particu-
lar crime." United States v. Fawole, 785 F.2d 1141, 1144 (4th Cir.
1986). The affidavit in support of the search warrant sought the sei-
zure of controlled substances, cash, communication devices, items
related to the distribution of controlled substances, identification doc-
uments, financial records, travel records, and weapons. We are per-
suaded that the descriptions contained in the attachment to the
affidavit were sufficiently particularized to limit the scope of the
search to evidence of illegal drug trafficking.
Pops further argues that the district court erred in not suppressing
evidence because the search of the Suitland premises and van began
UNITED STATES v. DAVIS 9
after the officers were informed that the search warrants had been
signed, but before the search warrants reached the premises searched.
We disagree with, and find no authority to support, Pops’ argument
that a search is warrantless simply because it is not on the premise
when the search is made. We hold that the search was not warrantless
on that account.
VII.
Defendant Copeland maintains that the district court erred in deny-
ing his motion to sever his trial based on his need for co-defendant
Pops Davis to testify on his behalf. The grant or denial of a motion
to sever is reviewed for abuse of discretion. United States v. West,
877 F.2d 281, 287-88 (4th Cir. 1989). The basic rule is that persons
who have been indicted together, particularly for conspiracy, should
be tried together. United States v. Brooks, 957 F.2d 1138, 1145 (4th
Cir. 1992).
When a defendant bases his severance motion on a purported need
for a co-defendant’s testimony, "the moving defendant must establish
(1) a bona fide need for the testimony of his co-defendant, (2) the
likelihood that the co-defendant would testify at a second trial and
waive his Fifth Amendment privilege, (3) the substance of his co-
defendant’s testimony, and (4) the exculpatory nature and effect of
such testimony." United States v. Parodi, 703 F.2d 768, 779 (4th Cir.
1983). However, when a co-defendant’s offer to testify is conditioned
on being tried first, the moving defendant has not established the like-
lihood that his co-defendant will testify. Parodi, 703 F.2d at 779.
In this case, Copeland informed the court that he intended to call
his co-defendant, Pops Davis, to refute testimony by Mrs. Carter that
she sent Pops a bag containing money from Copeland to purchase
drugs. After Mrs. Carter’s testimony, the court engaged in an exten-
sive discussion with counsel on whether severance of Copeland’s trial
was warranted. At this point, Pops stated that he was willing to waive
his Fifth Amendment privilege and testify on Copeland’s behalf.
However, the court deferred ruling on the severance motion until it
heard the remainder of the government’s case-in-chief at which time
the court would have more information about the potential exculpa-
tory value of Pops’ testimony.
10 UNITED STATES v. DAVIS
At the close of the government’s case, Copeland renewed his
motion for severance. The court again inquired as to whether Pops
was willing to testify in the present trial if called by Copeland. Coun-
sel for Davis stated that Pops was unwilling to testify in either his
own trial or Copeland’s trial and would invoke his Fifth Amendment
privilege. Based on counsel’s representation that Pops was no longer
willing to testify without qualification on Copeland’s behalf and the
court’s determination that substantial other evidence inculpated Cope-
land, the court denied Copeland’s motion to sever.
Regardless of whether Pops initially agreed to testify on Cope-
land’s behalf, Pops ultimately was unwilling to waive his Fifth
Amendment privilege and testify on Copeland’s behalf prior to his
own trial. Under the authority of Parodi, Copeland could not establish
that Pops was likely to testify on his behalf, and the district court cor-
rectly determined that severance was not warranted.
VIII.
Finally, defendant Copeland challenges the sufficiency of the evi-
dence supporting his conspiracy conviction. In reviewing a suffi-
ciency of the evidence claim, this court will sustain a guilty verdict
if there is substantial evidence, viewed in the light most favorable to
the government, to support the verdict. Glasser v. United States, 315
U.S. 60, 80 (1942).
Copeland maintains that the government’s case rested almost
entirely on Mrs. Carter’s testimony. Copeland’s argument hinges on
his contention that Mrs. Carter, as a coconspirator testifying for the
government, was not a credible witness. "[D]eterminations of credi-
bility are within the sole province of the jury and are not susceptible
to judicial review." United States v. Burgos, 94 F.3d 849 at 863 (4th
Cir. 1996) (internal quotation omitted). Moreover, the government
presented evidence, independent of Mrs. Carter, that Copeland was
involved in the Davis-Dillard drug conspiracy. The evidence included
(1) testimony by Roshawn Davis that Copeland purchased cocaine
from Dietrich Forbes and that Forbes complained that Copeland’s
payment was $8,000 short; (2) testimony by Harry White that after
John Dillard was unavailable to make a drug sell, Dillard told White
to contact his brother, Copeland, and that when Copeland brought
UNITED STATES v. DAVIS 11
White the drugs, he told White that when Dillard was unavailable,
White could contact him; and (3) surveillance evidence linking Cope-
land, independently and through his brother, John Dillard, to the
Davis-Dillard conspiracy by exposing John Dillard and Copeland’s
participation in numerous drug transactions from the Threadz Sportz
store. Reviewing the evidence in the light most favorable to the gov-
ernment, we conclude that the government presented sufficient evi-
dence to support Copeland’s conviction.
Accordingly, the judgment of the district court is
AFFIRMED.