United States v. Porter ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4447
LORENZA PORTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-95-80)
Argued: April 10, 1997
Decided: May 22, 1997
Before WILKINS and MICHAEL, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Steven D. Benjamin, STEVEN D. BENJAMIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. David T. Maguire,
Assistant United States Attorney, Richmond, Virginia, for Appellee.
ON BRIEF: Betty Layne Desportes, STEVEN D. BENJAMIN &
ASSOCIATES, Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Lorenza Porter appeals his convictions and sentences for conspir-
acy to possess with the intent to distribute and to distribute cocaine,
cocaine base, and heroin, see 21 U.S.C.A.§ 846 (West Supp. 1997);
possession with the intent to distribute heroin, see 21 U.S.C.A.
§ 841(a)(1) (West 1981); distribution of cocaine base and heroin, see
id.; money laundering, see 18 U.S.C.A.§ 1956(a)(1)(B)(i) (West
Supp. 1997); investment of illicit drug profits, see 21 U.S.C.A. § 854(West Supp. 1997); and tax evasion, see 26 U.S.C.A. § 7201 (West
1989). Finding no error, we affirm.
I.
The evidence adduced at trial, viewed in the light most favorable
to the Government, establishes the following facts. From 1989 until
1994, Porter supplied narcotics to various individuals in the Rich-
mond, Virginia area. One of Porter's associates, Mittledorfer Taylor,
testified that on several occasions Porter provided him with quantities
of cocaine and cocaine base and that Porter taught Taylor how to con-
vert cocaine to cocaine base. Further, Taylor stated that he regularly
facilitated narcotics transactions between Porter and third parties.
Altogether, Taylor estimated that Porter provided him with 12 kilo-
grams of cocaine and 8 kilograms of cocaine base over the course of
their association. Ayo Obisessan, another of Porter's associates, testi-
fied that during 1990 and 1991, he provided Porter with approxi-
mately 32 ounces of heroin, which Porter then distributed to third
parties. The evidence also established that Porter grossly underre-
ported his taxable income during 1990 and 1991, thereby incurring a
tax deficiency of approximately $47,000.
At sentencing, Porter requested permission to testify under oath
and to again cross-examine Taylor and Obisessan for the purpose of
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disputing drug quantity. The district court denied both requests. How-
ever, during allocution the court allowed Porter to make a lengthy
statement concerning his version of events, providing him with a full
opportunity to address the issue of the quantity of drugs that should
be attributed to him for sentencing purposes. Additionally, Porter's
counsel argued extensively with respect to drug quantity. At the con-
clusion of the sentencing hearing, the district court found Porter
responsible for the distribution of 18 kilograms of cocaine base and
32 ounces of heroin, indicating a base offense level of 38. See U.S.
Sentencing Guidelines Manual § 2D1.1(c)(1) & comment. (n.10)
(1995). This base offense level, combined with Porter's Criminal His-
tory Category of II, resulted in a guideline range of 262-327 months.
The district court sentenced Porter to 262 months imprisonment.
II.
Porter first maintains that the district court failed to preserve an
appearance of impartiality during the proceedings, thereby denying
him a fair trial. In support of this claim, Porter points to several
instances in which the district court expressed impatience with
defense counsel. For example, the district court exhorted Porter's
counsel to refrain from "wasting the jury's time" by presenting evi-
dence lacking probative value. J.A. 90. Most egregious, Porter main-
tains, was the inquiry, "Counsel, what's wrong with you?... Is the
blood supply to your head not working?" J.A. 92.
It is well settled that a district court must conduct a jury trial "in
a general atmosphere of impartiality." United States v. Cassiagnol,
420 F.2d 868, 878 (4th Cir. 1970). Thus, while the district court prop-
erly may exercise control over the proceedings, it may not do so in
a manner that creates an appearance of favoritism toward one of the
parties. See United States v. Castner, 50 F.3d 1267, 1272 (4th Cir.
1995). Nevertheless, reversal on the basis of remarks made by the dis-
trict court is rare. "`A judge's ordinary efforts at courtroom
administration--even a stern and short-tempered judge's ordinary
efforts at courtroom administration--remain immune,'" id. at 1274(quoting Liteky v. United States, 510 U.S. 540, 556 (1994)), unless the
court displays "`such a high degree of favoritism or antagonism as to
make fair judgment impossible,'" id. at 1273 (quoting Liteky, 510
U.S. at 555). Here, while we agree with Porter that some of the com-
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ments by the district court may have been intemperate, they did not
express such a deep-seated favoritism that a fair trial was rendered
impossible.
III.
Porter next contends that the district court erred in refusing to
allow him to testify or to again cross-examine trial witnesses during
the sentencing hearing. According to Porter, because drug quantity
was not at issue during the guilt phase of the proceedings, further tes-
timony was vital to his ability to provide the court with information
regarding a disputed sentencing factor. See U.S.S.G. § 6A1.3(a), p.s.
(providing that "[w]hen any factor important to the sentencing deter-
mination is reasonably in dispute, the parties shall be given an ade-
quate opportunity to present information to the court regarding that
factor"); United States v. Kincaid, 964 F.2d 325, 329-30 (4th Cir.
1992). We review the decision of the district court not to allow addi-
tional testimony for abuse of discretion. See United States v.
Brinkworth, 68 F.3d 633, 640 (2d Cir. 1995); Fed. R. Crim. P.
32(c)(1).
We conclude that, under the circumstances presented here, the dis-
trict court did not abuse its discretion in refusing to allow Porter to
again cross-examine Taylor and Obisessan or to testify under oath
during the sentencing hearing. Porter thoroughly cross-examined Tay-
lor and Obisessan at trial. Specifically, Porter questioned Taylor
extensively concerning the believability of his claims regarding the
extent of his narcotics activities and effectively cross-examined
Obisessan with respect to his ability to recall the details of his rela-
tionship with Porter. Porter also elicited testimony relevant to both
witnesses' motive to fabricate testimony in order to receive reduced
prison sentences. It is difficult to imagine what would be accom-
plished by further examination, and indeed, Porter gives no indication
of what information, if any, additional cross-examination of these wit-
nesses would have revealed. See United States v. Zuleta-Alvarez, 922
F.2d 33, 36 (1st Cir. 1990) (affirming denial of request for presenta-
tion of testimony at sentencing based in part on defendants' failure to
establish the need for such testimony). In addition, Porter's counsel
made a lengthy argument concerning the proper quantity of drugs to
be attributed to his client, and Porter echoed these statements during
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allocution. See Brinkworth, 68 F.3d at 640 (emphasizing that "the pro-
cedure followed in resolving disputed factors at sentencing rests in the
sound discretion of the trial court" (internal quotation marks and alter-
ation omitted)). In sum, the district court had before it all relevant
information concerning drug quantity, and the record reveals that the
court considered this information in determining the sentence. Thus,
although district courts should take care to provide an evidentiary
hearing when the factual basis for a disputed sentencing factor cannot
otherwise be sufficiently developed, no such hearing was necessary
here because Porter received an adequate opportunity to present infor-
mation to the court concerning drug quantity. Accordingly, we con-
clude that the district court did not abuse its discretion in refusing to
allow testimony during the sentencing hearing. See United States v.
Jimenez Martinez, 83 F.3d 488, 498 (1st Cir. 1996).
IV.
We reject Porter's claim that the remarks made by the district court
deprived him of a fair trial. Also, we determine that the district court
did not err in refusing to allow Porter to again cross-examine trial wit-
nesses or to testify under oath at sentencing. We have examined Por-
ter's remaining arguments and have concluded that they are without
merit. Accordingly, we affirm.
AFFIRMED
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