United States v. Lindsay ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4005
DOUGLAS M. LINDSAY, II,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(CR-96-327)
Submitted: February 10, 1998
Decided: April 21, 1998
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Howard William Paschal, Jr., MILLER & PASCHAL, Greenville,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Beth Drake, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Douglas McArthur Lindsay, II, appeals from his conviction and
resulting life sentence for conspiring to distribute and to possess with
intent to distribute cocaine and cocaine base in violation of 21 U.S.C.
§ 846 (1994). Finding no reversible error, we affirm the conviction
and sentence.
I.
The government's evidence showed that Lindsay was a leader and
organizer in a drug conspiracy. The government based its case on the
testimony of eight witnesses. Four of these witnesses were named co-
defendants who entered into plea agreements with the government.
These agreements all provided for downward departures from sen-
tencing in exchange for truthful cooperation.
The first witness called by the government was Ralph Johnson,
who was not a named co-defendant but was a source of drugs for the
conspiracy. Johnson had previously testified before a grand jury about
Lindsay's co-defendants. The government questioned Johnson about
that testimony, and brought out the fact that as a result of that testi-
mony, Lindsay's other four co-defendants pleaded guilty.
The government called as its second witness Thomas Wingard. On
direct examination, the government read aloud the"truth-telling" por-
tions of Wingard's plea agreement and questioned Wingard about his
obligations to testify truthfully.
As its third witness the government called Jermaine Lindsay,
another co-defendant. The government did not read aloud the truth
telling provisions of Jermaine Lindsay's plea agreement, but did ques-
tion him about his obligations under the agreement to testify truth-
fully. Over the objection of the defense, the government at the close
of its case moved the Johnson, Wingard, and Jermaine Lindsay plea
agreements into evidence.
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Appellant Lindsay testified in his own defense. He denied ever
having sold drugs or being in the drug business. On cross examina-
tion, the government questioned Lindsay about a conversation he had
with police in 1991 concerning an unrelated incident. Lindsay's
brother was arrested on drug distribution charges, and Lindsay came
to the jail voluntarily to talk with the arresting officer about bail for
his brother. During the conversation, the officer told Lindsay that nei-
ther he nor his brother needed to be dealing drugs. Lindsay did not
deny drug dealing, but replied that the officer did not "have to worry
about [him] anymore."
The jury returned a guilty verdict. Between the trial and sentencing
hearing, Lindsay's trial counsel was indicted for obstruction of jus-
tice. This indictment was unrelated to Lindsay's case and counsel's
license was not then suspended. Prior to the beginning of the sentenc-
ing hearing, the trial judge met with the attorneys and Lindsay to dis-
cuss whether Lindsay's counsel should continue his representation.
Lindsay agreed to proceed with the same counsel. Based on the trial
testimony and testimony at the sentencing hearing the district court
found that Lindsay distributed over one kilogram of cocaine base. The
court fixed Lindsay's offense level at 42 and sentenced him to life
imprisonment.
II.
Appellant contends that allowing the government to elicit testi-
mony from Johnson concerning Lindsay's non-testifying co-
defendants' guilty pleas was error. Specifically, Lindsay asserts that
the fact that co-defendants have pled guilty is never admissible as
substantive evidence.
At the outset, we note that evidentiary questions are reviewed for
abuse of discretion. See United States v. D'Anjou, 16 F.3d 604, 610
(4th Cir. 1994). Allowing evidence of the guilty pleas of the non-
testifying co-defendants was error. See United States v. Blevins, 960
F.2d 1252, 1260 (4th Cir. 1992). However, any error in allowing evi-
dence of the non-testifying co-defendants' guilty pleas was harmless
and does not warrant reversal of Lindsay's conviction. See Blevins,
960 F.2d at 1264-65.
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The prosecution mentioned the non-testifying co-defendants' guilty
pleas once on redirect examination of Johnson in an attempt to reha-
bilitate his credibility, and once on cross-examination of Lindsay. The
government did not argue the point in opening or closing argument.
When the government mentioned the guilty pleas on redirect exami-
nation of Johnson, the trial judge instructed the jury that there was to
be no insinuation that Lindsay was guilty because his co-defendants
pleaded guilty. Further, prior to deliberations the trial judge instructed
the jury that they were to consider the evidence against Lindsay only,
and not to consider the cases against his co-defendants in determining
Lindsay's guilt. See id. at 1260; United States v. De La Vega, 913
F.2d 861, 866-67 (11th Cir. 1990). Additionally, Johnson was only
one of six government witnesses, all of whom testified that they had
either sold drugs to or sold drugs for Lindsay. Thus, although it was
error to allow evidence of the non-testifying co-defendants' guilty
pleas, this court is satisfied beyond a reasonable doubt that the jury's
verdict would not have been different has the "minimal discussion of
the non-testifying co-defendants' guilty pleas not taken place." See
Blevins, 960 F.2d at 1265.
III.
Lindsay contends that the district court erred in admitting John-
son's testimony regarding the guilty pleas of Lindsay's testifying co-
defendants, Thomas Wingard and Jermaine Lindsay. Because Lindsay
had ample opportunity to cross-examine these defendants, and
because evidence of their pleas was admissible on their direct exami-
nation in anticipation of their impeachment, such reference was not
error. See United States v. Withers, 100 F.3d 1142, 1145-46 (4th Cir.
1996) (noting that in Blevins, this court"expressed doubt that the
mention of a guilty plea by a testifying co-defendant . . . would be
error since the defendant would have the opportunity to cross-
examine the witness," and finding similar mention of plea agreement
harmless), cert. denied, 65 U.S.L.W. 3631 (U.S. Mar. 17, 1997) (No.
96-7884); Blevins, 960 F.2d at 1260-61 n.3.
Lindsay also asserts that the district court erred in admitting the
plea agreements of Wingard and Jermaine Lindsay. Lindsay asserts
that admitting the plea agreements allowed the government to bolster
and vouch for their credibility. Although it is error for the government
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to vouch for or bolster its own witnesses, see United States v.
Sanchez, 118 F.3d 192, 198 (4th Cir. 1997), plea agreements of testi-
fying co-defendants are admissible in the government's case in chief,
and do not constitute improper vouching or bolstering. See United
States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983).
IV.
Lindsay contends that the trial court erred in allowing the introduc-
tion of his 1991 statement made to a police officer after the arrest of
Lindsay's brother on drug charges, that law enforcement did not have
to "worry about [him] anymore." Lindsay asserts that admission of
the statement was error because at the time the statement was made,
he was in custodial interrogation and had not been given Miranda
warnings.
Lindsay came to the police station voluntarily to speak with offi-
cers about posting bond for his brother. Officers interviewed him
about his brother, but did not place any restrictions on his freedom to
leave. Thus, Lindsay was not subject to custodial interrogation at the
time of his 1991 statement, and Miranda warnings were unnecessary.
See Stansbury v. California, 511 U.S. 318, 322-23 (1994); United
States v. Jones, 818 F.2d 1119, 1122 (4th Cir. 1987).
V.
Lindsay contends that the district court erroneously found him
responsible for over one kilogram of cocaine base. The government
put forth several witnesses to testify to the quantity of cocaine base
for which Lindsay was responsible. This testimony as a whole indi-
cated that Lindsay was responsible for at least 1004 grams of cocaine
base. A review of the record finds this determination amply supported
by the evidence presented, and thus it was not clearly erroneous for
the court to so find. See United States v. Uwaeme, 975 F.2d 1016,
1018 (4th Cir. 1992).
VI.
Lindsay's last contention is that the district court erred in allowing
defense counsel to continue to represent Lindsay at the sentencing
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hearing after counsel had been indicted for obstruction of justice. At
the outset of the sentencing hearing, the district court adjourned to
chambers to confer with the prosecutor, defense counsel, and Lindsay
regarding the criminal charges recently made against defense counsel.
Those charges did not relate to Lindsay's case and had not resulted
in defense counsel's suspension or discipline. Only after Lindsay indi-
cated that he was content to have defense counsel continue to repre-
sent him did the district court proceed with the sentencing.
In maintaining on appeal that his counsel's indictment created a
"possible conflict," Lindsay offers no evidence that the indictment
prejudiced him. Indeed, Lindsay does not even argue that the indict-
ment affected his attorney's performance at sentencing or caused the
judge to sentence him more harshly. We require defendants to demon-
strate that such a conflict "result[ed] in an adverse effect." United
States v. Tatum, 943 F.2d 370, 375-76 (4th Cir. 1991). Because Lind-
say offers no support for his proposition that he was prejudiced by
trial counsel's continued representation, his contention that the district
court erred in permitting defense counsel's continued representation
necessarily fails.
VII.
We affirm Appellant's convictions and sentences. 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
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