United States v. Groves ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5172
RICKY LEE GROVES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5173
WILLIE LEE STRICKLAND,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-94-97-F)
Submitted: April 30, 1996
Decided: June 25, 1996
Before HAMILTON and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert Willis, LAW OFFICES OF ROBERT WILLIS, Raleigh,
North Carolina; Brian E. Clemmons, YOUNG, MOORE & HEN-
DERSON, P.A., Raleigh, North Carolina, for Appellants. Janice
McKenzie Cole, United States Attorney, Christine B. Hamilton,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ricky Lee Groves appeals his conviction and sentence of life plus
60 months for engaging in a continuing criminal enterprise (CCE), 21
U.S.C.A. § 848 (West Supp. 1996), trading food stamps for crack, 7
U.S.C.A. § 2024(b) (West 1988 & Supp. 1996), and use of a firearm
in a drug trafficking offense. 18 U.S.C.A. § 924(c) (West Supp.
1996). Willie Lee Strickland appeals his conviction and 252-month
sentence for crack conspiracy, 21 U.S.C.A. § 846 (West Supp. 1995),
and crack distributions. 21 U.S.C.A. § 841 (West 1981 & Supp.
1995). We affirm.1
The government's evidence at Appellants' joint trial established
that Ricky Groves's brother Charlie Groves sold crack for several
years from his home at 3535 Government Road in Clayton, North
Carolina. When Charlie Groves went to prison in 1992, Ricky
Groves's mother, Alva Mae, moved into Charlie's trailer and Ricky
Groves continued the crack business. Ricky Groves lived in Raleigh
but went to the trailer on Government Road every day. Willie Strick-
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1 Appellants' Motion for Leave to File Statistical Information is
granted. We have considered the information attached to the Motion.
2
land had supplied Charlie and continued to supply Ricky Groves.
Ricky Groves also obtained crack from several Haitians, principally
"Haitian Roger." Roger supplied Ricky's sister, Margaret Woodard,
who lived next door, and his niece, Pam Woodard. Runners who sold
the crack to people who drove along Government Road obtained
crack from Ricky, his mother, his sister, or co-conspirator Tim
McCullers and were paid in crack, cash, or both. Ricky Groves also
traded crack for foodstamps, firearms, and various other items. Dur-
ing the course of an extended investigation, about twenty-six con-
trolled buys of crack were made by a federal agent accompanied by
a confidential informant. Audio and video recordings were made of
most of these transactions.
On appeal, Groves and Strickland first contend that the government
unconstitutionally exercised three peremptory strikes against black
jurors. During jury selection, the attorneys for Groves and Strickland
objected to the government's use of three peremptory strikes against
three young black males. The government attorney, who was also
black, explained that the first juror, Mr. McCrowie, was struck
because he was the only single person on the list at that point, and that
the second, Mr. Autry, was struck because "he was looking at me in
a way I didn't particularly care for." The third black juror was from
an area where Groves had relatives living. The district court accepted
the government attorney's explanations and found that no intentional
discrimination had occurred.
Later, Groves's attorney again raised the issue, arguing that the
government was inconsistent in not striking a white male juror who
was divorced as a single person like the first black male who was
struck. He asked the district court to reinstate the first black juror who
was struck, which the court declined to do. The government attorney
stated that he was picking a jury for another attorney who would try
the case, and was generally attempting to follow her instructions. The
district court again found no intentional discrimination.
A party challenging the exercise of a peremptory strike on racial
discrimination grounds must make a prima facie case of intentional
discrimination, after which the burden shifts to the other party, who
must offer a race-neutral reason for exercising the strike. Batson v.
Kentucky, 476 U.S. 79 (1986); Jones v. Plaster, 57 F.3d 417, 420 (4th
3
Cir. 1995). A satisfactory reason need only be based on something
besides race; it need not be rational or credible or have any relation-
ship to the trial. Purkett v. Elem, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3814(U.S. May 15, 1995) (No. 94-802). The trial court must then decide
whether intentional discrimination was a motivating factor for the
peremptory strike. Its decision is reviewed for clear error. United
States v. Hernandez, 500 U.S. 352, 359, 364-65 (1991) (finding con-
cerning discrimination is credibility determination).
Here, the government offered race-neutral reasons for striking all
three black jurors.2 Groves and Strickland contend that the govern-
ment's reason for striking McCrowie--that he was single--was
inconsistent with its failure to strike a white male who was divorced,
and that a policy of striking all never-married jurors would be dis-
criminatory because black adults are more likely than whites to be
unmarried. They also suggest that the district court failed to address
their argument that the reason offered by the government for striking
McCrowie was pretexual. However, the district court heard the argu-
ment for reconsideration of its prior ruling and again found no Batson
violation.
The government attorney who handled the trial (and whose instruc-
tions were being followed by the attorney who exercised the peremp-
tory strikes) states in the government's appeal brief that she believes
young unmarried people are less desirable as jurors because they have
not yet had to make difficult decisions, while divorced people often
have had to make such decisions and compromises. Whether or not
such a view is true, it is a consistent and race-neutral reason for strik-
ing young persons who have never been married.
Appellants contend that the government's explanation for the strike
against Autry was not credible, but they mischaracterize the reason
for the strike. The government attorney did not say he struck Autry
because of the way he looked, but because of the way he was looking
at the government attorney. We find that the government offered race-
neutral reasons for striking both McCrowie and Autry and that the
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2 The preliminary question of whether a prima facie showing of inten-
tional discrimination had been made thus became moot. Hernandez, 500
U.S. at 359.
4
district court did not clearly err in finding that there was no Batson
violation.
Groves contends that the evidence was insufficient to support his
CCE conviction because it was insufficient to convict him of conspir-
acy (Count 1) or the distribution counts (Counts 4-11, 21, 31, 32, and
34).3 A conviction must be sustained if there is substantial evidence,
taken in the light most favorable to the government, to support a find-
ing of guilt. Glasser v. United States, 315 U.S. 60, 80 (1942). The ele-
ments which the government was required to prove to convict Groves
of participation in a continuing criminal enterprise are: (1) that
Groves committed a felony violation of the federal drug laws; (2) that
the violation was part of a series of violations of the drug laws; (3)
that the series of violations were undertaken by Groves in concert
with five or more persons with respect to whom Groves occupied a
position of organizer, supervisor, or any other position of manage-
ment; (4) that Groves obtained substantial income or resources from
the continuing series of violations. United States v. Heater, 63 F.3d
311, 316-17 (4th Cir. 1995). At least three predicate violations of the
drug laws must be proved, of which one may be a conspiracy under
21 U.S.C.A. § 846 (West Supp. 1995). United States v. Ricks, 882
F.2d 885, 891 (4th Cir. 1989).
Groves argues that three of the other named conspirators, Lonnie
Morrison, Tim McCullers, or Baltasaras Romilus (Haitian Bill), were
engaged in separate conspiracies.4 While the government's witnesses
may not have testified about direct dealing between Groves and these
three, there was abundant evidence that Groves conspired with
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3 After Groves was convicted, the district court vacated his conviction
for the conspiracy and all the distribution counts. It is unclear why the
substantive counts were vacated. However, a defendant's conduct may
be a predicate offense for CCE purposes even without a conviction for
that conduct. United States v. Apodaca, 843 F.2d 421, 432 (10th Cir.),
cert. denied, 488 U.S. 932 (1988).
4 McCullers and Romilus pled guilty to the conspiracy count before
Appellants went to trial. Lonnie Morrison is identified in the presentence
report as a street dealer for Groves, but runner Travis Walker testified
that Morrison had his own crack business. Morrison pled guilty to two
crack distribution counts and one count of trading food stamps for crack.
5
numerous people to violate federal drug laws. Runner Larry Horton
testified that Groves's other runners included Eric Chris, James
Lemon, Ricky McNeil, Malcolm Tomlinson, and "Soldier Boy."
Groves also contends that there was insufficient evidence to prove
the substantive distribution counts because the indictment gave spe-
cific months (Counts 4-11) or specific dates (Counts 21, 31, 32, 34)
when the distributions occurred, while the runners who testified at
trial were not specific about dates. However, there was specific testi-
mony from Detective Alfred Linton of the Clayton Police Depart-
ment, and Sergeant Clyde Berube, of the Johnston County Sheriff's
Department, about a transaction on June 23, 1993, in which Groves
was shown to be the source of the crack purchased by the undercover
agent for food stamps in a videotaped transaction. Runner Larry Hor-
ton testified that Groves was the source of the crack he sold to an
undercover agent for food stamps on September 30, 1993. This trans-
action was audio taped.5
The evidence was thus sufficient to convict Groves of the offenses
which were charged in Counts 21 and 34 under 21 U.S.C.A. § 841,
and in Counts 61 and 73 under 7 U.S.C.A. § 2024(b). Because there
was substantial evidence that Groves committed three felony viola-
tions of the drug laws by participating in the crack conspiracy and the
crack transactions on June 23, 1993, and September 30, 1993, the
§ 848 conviction will be affirmed. Groves makes the same claim of
insufficient evidence with regard to his convictions for trading crack
for food stamps and the argument is without merit for the same rea-
son. Groves concedes that the evidence that he traded firearms for
crack was sufficient to convict him under § 924(c), but suggests that
the testimony was not credible. The credibility of witnesses is not
reviewable on appeal. United States v. Saunders , 886 F.2d 56, 60 (4th
Cir. 1989).
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5 Government Exhibits 10 and 10A were the crack and the lab report
for the June 23, 1993, controlled buy involving Ricky Groves and run-
ners James Lemon and William (Red) Woodard. Government Exhibit 87
was a videotape of the transaction. Government Exhibit 85 was an audio
tape of the September 30, 1993, controlled buy from runners Larry Hor-
ton and Eric Chris.
6
Strickland first argues that there was insufficient evidence to con-
vict him of conspiracy because there was no testimony that he con-
spired with Lonnie Morrison, Timothy McCullers, or Baltaras
Romilus (Haitian Bill). However, there was ample evidence that he
supplied crack to Ricky Groves regularly throughout the conspiracy;
this evidence is sufficient to sustain his conviction.
Strickland also contends that there was insufficient evidence to
support his substantive distribution convictions because the govern-
ment's witnesses did not give the specific dates of his distributions.
The substantive counts charged Strickland with distributions of more
than 50 grams of crack in April, August, October, and December
1993, and in February, April, and June 1994. Runners Horton, Woo-
dard, Tomlinson, and Walker all testified that Strickland supplied
Groves with crack throughout the conspiracy. Horton testified that
Strickland came to see Groves about once a week. Given that the jury
found the government's witnesses credible, this evidence was suffi-
cient for the jury to find that Strickland distributed crack to Groves
in the months charged.
Strickland next contests the admission of an address book seized
during a December 1993 search of his apartment when he was being
sought as a murder suspect. He contends first that the search warrant
affidavit was insufficient because the sources of the information con-
tained in it were not identified. Second, he argues that the affidavit
failed to establish probable cause that an address book would be
found in the apartment. On appeal, he further argues, in effect, that
the warrant was overbroad in authorizing seizure of the address book
because it was not evidence pertinent to the murder.
An affidavit in support of a warrant application must provide the
magistrate with information sufficient for determining the existence
of probable cause that specific evidence of a crime will be found in
the place to be searched. Illinois v. Gates, 462 U.S. 213, 239 (1983).
However, a reviewing court takes into account the totality of the
information made known to the magistrate. Massachusetts v. Upton,
466 U.S. 727, 732-34 (1984). The affidavit submitted by Police Chief
Toppings, of Four Oaks, North Carolina, described the murder in
detail but did not make clear that he personally obtained the informa-
tion from the witnesses to the murder. Toppings testified that he dis-
7
cussed his investigation with the magistrate before the warrant was
issued, so that the magistrate was aware of the sources of the informa-
tion. In this circumstance, we find that the district court did not err
in finding that the warrant was based on probable cause.
A magistrate may not authorize a search broader than the scope of
the probable cause showing. United States v. Christine, 687 F.2d 749,
753 (3d Cir. 1982). The address book was listed in the warrant appli-
cation as an item sought as evidence of a crime and the identity of a
person participating in a crime, along with handguns, bullets, clothes,
shoes, and pictures. Toppings testified that he included the address
book because it would be a help in finding Strickland if he were not
apprehended quickly. He said the magistrate did not question him
about the address book. Even if the address book was not properly
listed on the warrant application because it was not evidence of the
murder or the identity of the suspect (which was not really in doubt),
the admission of the address book was harmless error at most.
Chapman v. California, 386 U.S. 18, 23-24 (1967). It is not clear
from the materials presented on appeal what part, if any, the address
book played in the government's case against Strickland, but in view
of the other evidence against him, we are satisfied that any error in
the admission of the address book was harmless beyond a reasonable
doubt.
Following the jury's verdict, the probation officer recommended
that Groves be held responsible for 72.9 kilograms of crack and 1792
grams of cocaine, and that Strickland be held responsible for 7.1 kilo-
grams of crack. USSG § 2D1.1, 2D1.5.6 Both Groves and Strickland
objected to the amount of crack attributed to them on the grounds that
the trial testimony did not establish those amounts and that the infor-
mation from unidentified co-conspirators contained in the presentence
report was unreliable.
Groves contends that the district court clearly erred in adopting the
recommended finding that he was responsible for 72.9 kilograms of
crack because the presentence report listed crack amounts reported by
unidentified co-conspirators and the amounts do not correspond with
_________________________________________________________________
6 United States Sentencing Commission, Guidelines Manual (Nov.
1994). Groves and Strickland were sentenced in February 1995.
8
the trial testimony. However, the trial testimony firmly established
that Groves was responsible for the distribution of more than 1.5 kilo-
grams of crack over the course of the conspiracy. That amount gave
him an offense level of 38, the highest possible under USSG § 2D1.1,
which was increased to 42 under USSG § 2D1.5 because of his CCE
conviction. Exactly how much Groves had distributed in excess of 1.5
kilograms is immaterial. The district court's adoption of the recom-
mended findings was not clearly erroneous.
Strickland concedes that the testimony of certain witnesses at trial
establishes his responsibility for more than 1.5 kilograms of crack, but
argues that the district court should have found their testimony unreli-
able because it was vague and imprecise. Because the witnesses con-
sistently testified that Strickland supplied Groves on a weekly basis
throughout the life of the conspiracy, the district court did not clearly
err in finding that Strickland was responsible for more than 1.5 kilo-
grams of crack. Moreover, the court did not clearly err in finding that
he was more than a mere courier.
We therefore affirm Appellants' convictions and sentences. Appel-
lants' Motion to File Statistical Information is granted. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
9