United States v. Brightman , 246 F. App'x 822 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4609
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAMON BRIGHTMAN,
Defendant - Appellant.
No. 05-4612
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD VANDERHORST,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (CR-03-627)
Submitted: August 27, 2007 Decided: September 5, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Seekings, John F. Martin, Charleston, South Carolina,
for Appellants. Reginald I. Lloyd, United States Attorney, Carlton
R. Bourne, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
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PER CURIAM:
In February and March of 2001, the Drug Enforcement
Administration obtained orders authorizing wiretaps of two phones
used by subjects suspected of distributing cocaine in the North
Charleston, South Carolina area. The intercepted communications
demonstrated Appellants Damon Brightman and Donald Vanderhorst’s
involvement in the cocaine distribution, and they were each charged
with one count of conspiracy to possess with intent to distribute
five kilograms or more of cocaine and fifty grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),(b)(1) (2000).
Prior to trial, Brightman moved to suppress the second wiretap.
The district court denied the motion to suppress.
During the course of Brightman and Vanderhorst’s trial,
a letter was discovered being passed between two witnesses housed
in the detention center. Appellants maintain the letter reflects
that the Government offered favorable treatment to those who would
testify against the Appellants. The district court denied the
Appellants’ request to admit the letter.
At the conclusion of the trial, the jury returned a
guilty verdict against the Appellants. Brightman alleges that as
the jury was returning its verdict he recognized one of the jurors
as a former classmate of his. After his trial, Brightman filed a
pro se motion for a new trial based on potential juror bias. The
district court denied the motion. The court held a reconsideration
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hearing during which Brightman offered no evidence, outside of his
own allegations, to support his position. The court again denied
the motion. At sentencing, Brightman reasserted his claim. The
Government called Agent Driggers, who testified that he interviewed
the juror and that the juror denied knowing Brightman. The
district court again rejected Brightman’s argument.
Brightman was ultimately sentenced to life imprisonment
under 21 U.S.C. §§ 841(b)(1)(A)(iii), 851 (2000), based on the
instant offense and two prior offenses from 1994 and 1995 that were
combined into a single plea agreement in 1995. Appellants timely
noted their appeal. For the reasons that follow, we affirm the
judgment of the district court.
Brightman first argues that the district court erred in
denying his motion to suppress evidence obtained from the wiretaps.
According to Brightman, the Government failed to satisfy the
requirement in 18 U.S.C. § 2518(1)(c) (2000) that it show that
other investigation procedures have been tried and failed or would
be unlikely to succeed.
This court reviews for clear error the factual findings
underlying a district court’s ruling on a motion to suppress and
reviews a district court’s legal conclusions de novo. United
States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Additionally,
a district court’s determination under 18 U.S.C. § 2518(3)(c)
(2000) that normal investigative procedures have been tried and
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failed, or reasonably appear unlikely to succeed if tried, is
reviewed for abuse of discretion. Wilson, 484 F.3d at 280. This
court has stated that the burden placed on the Government to show
that other investigative techniques have failed or would fail is
not great. United States v. Smith, 31 F.3d 1294, 1297 (4th Cir.
1994). The Government must present specific factual information
“sufficient to establish that it has encountered difficulties in
penetrating the criminal enterprise or in gathering evidence to the
point where wiretapping becomes reasonable.” Id. at 1298 (quoting
United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989))
(internal quotations omitted).
The Government has met its burden in this case. Both
affidavits detailed how law enforcement had conducted surveillance
of the wiretap targets and that further surveillance was unlikely
to yield necessary information. Also, due to the nature of the
drug distribution conspiracy, other investigative techniques such
as grand jury subpoenas, confidential sources, search warrants,
telephone billing records, and pen register devices would not have
yielded the same valuable information regarding drug deals that
could be obtained with a wiretap. Accordingly, the district court
did not abuse its discretion in authorizing the wiretaps or err in
denying Brightman’s motion to suppress.*
*
At the suppression hearing, Brightman only challenged the
affidavit supporting the second wiretap. Accordingly, to the
extent that he challenges the first wiretap on appeal, his claim is
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Brightman next contends that the district court erred in
not granting him a new trial after being presented with evidence
that the jury was tainted because one of the jurors was a former
classmate of his.
In reviewing issues of juror misconduct, this court
reviews historical facts for clear error and conclusions of law de
novo. United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996).
Also, “because the ultimate factual determination regarding the
impartiality of the jury necessarily depends on legal conclusions,
it is reviewed in light of all the evidence under a somewhat
narrowed, modified abuse of discretion standard.” Id. (quoting
Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1537-39 nn. 11-12
(4th Cir. 1986)) (internal quotations omitted).
Brightman first raised his claim of potential juror bias
in a pro se motion following his trial. Accordingly, he has waived
his right to a new trial based on this claim. See United States v.
Breit, 712 F.2d 81, 82 (4th Cir. 1983). Moreover, even if
Brightman had not waived his claim for a new trial, the record does
not support his claim that the juror knew him or recognized him
during his trial. Similarly, Brightman’s argument that the
reviewed for plain error. United States v. Olano, 507 U.S. 725,
732 (1993). To establish plain error, Brightman must first
demonstrate that there was, in fact, error. Id. Brightman fails
to make such a showing as the affidavit supporting the first
wiretap, like the affidavit supporting the second, met the
requirements of 18 U.S.C. § 2518(1)(c).
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district court “refused to entertain any significant airing of the
historical facts” underlying his claim of juror bias and,
therefore, abused its discretion, is not supported by the record.
Brightman’s third claim on appeal is that his enhanced
sentence was fundamentally unfair and offensive to due process. On
October 26, 1995, pursuant to a plea agreement, Brightman pled
guilty to two counts of possession with intent to distribute
cocaine. The dates of offense for these two prior offenses were
July 7, 1994, and August 12, 1995, respectively. Based on
Brightman’s prior offenses, the Government filed a notice of
enhancement pursuant to 21 U.S.C. § 851. Following Brightman’s
conviction, the district court imposed the mandatory minimum
sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii).
On appeal, Brightman claims that, because the 1994 and 1995
offenses were combined into a single plea agreement, he has only
one prior conviction for purposes of § 841(b)(1)(A)(iii).
Section 841(b)(1)(A) states in relevant part that if any
person commits a violation of § 841 “after two or more prior
convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life imprisonment
without release.” 21 U.S.C. § 841(b)(1)(A). This court has
already held that “prior” or “previous” convictions, as used in
§ 841, refers to separate criminal episodes and not separate
convictions arising out of a single transaction. United States v.
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Blackwood, 913 F.2d 139, 145-46 (4th Cir. 1990). Brightman does
not argue that his two underlying offenses were part of a single
act of criminality, nor would the facts support such an argument.
Brightman’s two offenses resulted from two separate episodes of
criminality, and the district court did not err in enhancing
Brightman’s sentence accordingly. See United States v. Ford, 88
F.3d 1350, 1365-66 (4th Cir. 1996).
Finally, Brightman and Vanderhorst contend that the
district court erred in failing to admit a letter or testimony
regarding a letter, found in the detention center, in which the
Government solicited witnesses to testify against the Appellants.
“A district court’s evidentiary rulings are entitled to substantial
deference and will not be reversed absent a clear abuse of
discretion.” United States v. Moore, 27 F.3d 969, 974 (4th Cir.
1994). No evidence exists in the record to demonstrate that
Appellants authenticated or even attempted to authenticate the
letter found in the detention center. Therefore, the district
court did not abuse its discretion in refusing to admit it.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and oral argument would not aid the decisional process.
AFFIRMED
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