United States v. Dodson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5267
CHARLES EDWARD DODSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-94-106)
Argued: April 11, 1997
Decided: October 31, 1997
Before RUSSELL and WIDENER, Circuit Judges, and
DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
ARGUED: William G. Wentz, Bedford, Virginia, for Appellant. Ray
B. Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United
States Attorney, Charlottesville, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.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:
Charles Dodson appeals his convictions for conspiracy to possess
with intent to distribute cocaine powder and base, in violation of 18
U.S.C. §§ 841(a) and 846; for possession with intent to distribute
cocaine, in violation of 18 U.S.C. § 841(a); and for using or carrying
a firearm in relation to a drug crime, in violation of 18 U.S.C. §§ 2and 924(c).1 We affirm in part, vacate in part, and remand to the dis-
trict court for further proceedings with this opinion.
I.
At trial the Government established that beginning in 1990 and
continuing through 1994, Charles Dodson and his brother Carroll
Dodson were involved in a conspiracy to distribute cocaine. They
sold cocaine from several locations in Danville, Virginia and ran their
organization like a retail distribution network. The Dodsons and a
dozen co-conspirators would obtain large quantities of premium
cocaine, which they cut into smaller amounts or cooked into rocks of
crack cocaine for street sale. They would then deliver the cocaine to
distribution sites known as "the Fortress," and "the Farm." At these
sites, lower level conspirators would sell the drugs directly to cocaine
users. The sellers would in turn deliver the proceeds from their sales
to the person immediately above them in exchange for more cocaine
to sell. It was known that whichever Dodson brother was present at
the distribution site was in charge of operations at that site.
On January 8, 1993, Danville police executed a search warrant on
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1 Dodson received 420 months imprisonment for the conspiracy con-
viction and 240 months for the possession conviction, to be served con-
currently; and 60 months for the firearm conviction to be served
consecutively.
2
the Fortress. A team of twelve officers knocked on the doors and
announced their presence and intent. Three to five minutes elapsed
before the occupants allowed the officers inside. During the delay, the
officers heard movement from inside the house. Upon entering the
Fortress, the officers encountered Charles Dodson ("Dodson") and
four men calmly sitting in the front room. The ensuing search of the
building yielded two handguns hidden in a bedroom wall, cash, and
a black sticky substance in a wood-burning stove, which field tested
positive as cocaine.
II.
Dodson challenges his convictions on numerous constitutional and
evidentiary grounds. Additionally, he contends the district court
improperly calculated his sentence. We address each contention in
turn.
A.
Dodson's first appellate issue involves his convictions under 18
U.S.C. §§ 2 and 924(c) for aiding and abetting Jeremaine Lavonne
Chase, a co-conspirator, in using or carrying a firearm during and in
relation to a drug trafficking offense. Dodson asserts that we should
vacate his conviction because there was no evidence that Chase com-
mitted the predicate § 924(c) offense on January 8, 1993.
In United States v. Chase,2 we vacated Chase's § 924(c)(1) convic-
tion after determining that the jury instructions in Chase's trial failed
to ensure a constitutional verdict for the predicate offense.3 Because
Dodson's 18 U.S.C. §§ 2 and 924(c) convictions relied upon the suc-
cessful prosecution of Chase having committed the predicate offense,
we vacate Dodson's conviction in light of Chase, and remand his case
to the district court for resentencing.
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2 No. 96-9522 (4th Cir. filed Oct. 17, 1997).
3 Id. at 10.
3
B.
Next, Dodson contends the district court's instruction on "posses-
sion" was insufficient because the district judge did not use the exact
"possession" that Dodson proposed. We review the district court's
instruction under the abuse of discretion standard,4 and accordingly
hold that Dodson's assertion is meritless because the district court
adequately instructed the jury on possession.
C.
At trial, Deputy Barnwell, an important government witness, and
an investigator of Dodson's illegal drug activities, notified the court
that he recognized a male juror. Barnwell informed the district court
that during his investigation of another case, he had seen the juror
consorting with known cocaine purchasers and users. Pursuant to
Barnwell's information, the Government requested that the juror be
excused. Following extensive argument by the parties, the district
court complied with the Government's request and dismissed the
juror. Dodson asserts that excusing the juror violated his Sixth
Amendment5 right to be tried by an impartial jury and that the judge
should have declared a mistrial after excusing the juror. We disagree.
When a district court discovers a biased juror has been impaneled
in a criminal trial, the court must find less drastic alternatives in deal-
ing with that juror than declaring a mistrial.6 One advisable alternative
is removing the juror and replacing him with an alternate.7 Because
the district court employed this exact measure, we hold that dismiss-
ing the juror did not violate Dodson's Sixth Amendment right.
D.
Next, Dodson contends the Government failed to present sufficient
evidence proving the black sticky substance recovered from the
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4 United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).
5 U.S. Conts. Amend. VI.
6 United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir. 1984).
7 Id.4
wood-burning stove at the Fortress was cocaine because the police
field tested the substance and did not submit it for laboratory analysis.
He argues that, absent a Certificate of Analysis from a laboratory, the
jury was compelled to rely solely on the testimony of Dexter Holley,
a drug user and convicted felon, that Dodson possessed cocaine on the
night in question. We disagree.
Lay testimony may be sufficient to establish the identity of a sub-
stance without the introduction of laboratory analysis.8 In the instant
case, Holley testified that he purchased cocaine from Dodson before
the police arrived; that he experienced the cocaine's effect after he
injected it into his body; and that when the police "knocked and
announced," Dodson and others threw the cocaine into the wood-
burning stove. Moreover, we are unaware of any requirement that
substances, which have been properly field tested, be submitted for
laboratory analysis. Accordingly, we hold that the Government,
through Holley's testimony and the results of the field test, presented
sufficient evidence from which a reasonable jury could conclude the
black sticky substance found in the wood-burning stove was cocaine.
E.
Finally Dodson challenges the district court's calculation of his
sentence.
1.
First Dodson asserts the district court improperly adjusted his sen-
tence upward to reflect his leadership responsibilities and activities in
the conspiracy. Section 3B1.1 of the Sentencing Guidelines requires
the district court to upwardly adjust a defendant's sentence if the
court finds by a preponderance of the evidence that the defendant was
an organizer, leader, manager, or supervisor of the overall criminal
activity.9 We review for clear error the district court's factual determi-
nations concerning Dodson's role.10
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8 United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976).
9 U.S. Sentencing Guidelines Manual, § 3B1.1(b) (1996).
10 18 U.S.C. § 3742(e); United States v. Gary, 18 F.3d 1123, 1127 (4th
Cir. 1994).
5
At sentencing the district court found that: (1) Dodson was
involved during the entire duration of the conspiracy; (2) Dodson was
one of the select few who delivered cocaine to the organization's dis-
tribution centers; (3) Dodson supervised the selling of the cocaine at
the distribution centers; (4) Dodson collected the cash generated from
the street sales of cocaine; and (5) Dodson was in charge of the For-
tress on the night of his arrest. We find no error in the district court's
determination that Dodson was a manager and supervisor. Accord-
ingly, we hold that the district court did not err in upwardly adjusting
Dodson's sentence by three levels.
2.
Next, Dodson asserts the district court improperly increased his
criminal history by two points pursuant to § 4A1.1 of the Sentencing
Guidelines. Section 4A1.1 requires the district court to adjust a defen-
dant's criminal history upward by two levels if it finds by a prepon-
derance of the evidence that the defendant was under some criminal
justice control at the time of the offense of conviction. Dodson main-
tains the district court erred in applying § 4A1.1 because his arrest for
conspiracy on January 8, 1993, predated his state court probation,
which was imposed on January 20, 1993, and ran through November
1993. The question before us, therefore, is whether the district court
properly determined that there was evidence showing that Dodson
was a member of the conspiracy after the Virginia state court had
placed him on probation.
Conspiracy is a continuing offense that does not end until its termi-
nation is affirmatively established.11 Termination occurs either on the
date of the indictment or the defendant's voluntary withdrawal from
the conspiracy.12 In the instant case, because there was no evidence
that Dodson voluntarily withdrew from the conspiracy, his involve-
ment therein continued until the grand jury issued the indictment
against him on August 19, 1994. Accordingly, the district court did
not err in finding that Dodson was on probation during the offense,
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11 United States v. Sheffer, 896 F.2d 842, 844 (4th Cir. 1990).
12 United States v. Maxim, 55 F.3d 394, 398 (8th Cir.), cert. denied, 116
S. Ct. 265(1995).
6
and we hold it appropriately increased his criminal history by two
levels.
3.
Finally, Dodson contends the district court incorrectly attributed
more than 1.5 kilograms of cocaine to him for sentencing purposes
because it relied, in part, on the testimony of an unreliable witness.
We will not disturb the district court's factual findings on appeal
unless they are clearly erroneous.13
Dodson's mere assertion that a witness's testimony was unreliable
fails to justify an examination of the district court's factual findings.
Regardless, we note that the district court did not rely solely on this
witness's testimony when calculating Dodson's sentence. Therefore,
we hold the district court did not err in attributing the cocaine to Dod-
son for purposes of sentencing.
F.
For the foregoing reasons, Dodson's convictions are affirmed in
part, vacated in part, and remanded for further proceedings in accor-
dance with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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13 18 U.S.C. § 3742(e); Gary, 18 F.3d at 1127.
7