United States v. Billups , 226 F. App'x 312 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY L. BILLUPS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:05-cr-00042-RLW)
Submitted: February 22, 2007 Decided: March 16, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John B. Mann, Richmond, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Michael C. Wallace, Sr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory L. Billups seeks appellate relief from his convictions
by a jury in the Eastern District of Virginia on three drug and
firearms related offenses: possession with intent to distribute
cocaine base (“Count One”), in violation of 21 U.S.C. § 841(a)(1);
possession of a firearm in furtherance of a drug trafficking crime
(“Count Three”), in contravention of 18 U.S.C. § 924(c); and
possession of a firearm by a convicted felon (“Count Four”), in
violation of 18 U.S.C. § 922(g). Billups maintains on appeal that
the evidence before the jury was not sufficient to warrant his
convictions, and that the district court denied him a fair trial by
committing multiple errors in the conduct of his trial. As
explained below, we affirm.
I.
In the early morning hours of December 6, 2004, police
officers in Richmond, Virginia, responded to a report that gunshots
had been fired in the vicinity of Apartment No. 6 at 5300 Hull
Street, and that someone may have been shot.1 The police were
advised that a bald black male, wearing blue jeans, a white T-
shirt, and a fur coat, was involved in the shooting incident. When
1
The factual predicate for Billups’s convictions is drawn from
the trial record, and is spelled out in the light most favorable to
the prosecution. See United States v. Pasquantino, 336 F.3d 321,
332 (4th Cir. 2003) (en banc).
2
the police arrived at the scene, they discovered a multiple-
building apartment complex, called Pine Brook Village Apartments,
located in the 5300 block of Hull Street, but did not locate an
actual 5300 building. As a result, four police officers split up
to check each “Apartment No. 6” in the Pine Brook complex.
Officers Hatchett and Urban checked on Apartment No. 6 in building
5312 and were informed by a neighbor that it was vacant.2 The
officers noticed, however, that the door to this Apartment No. 6
was ajar by two to three feet, and that it appeared to have been
forcibly opened. Looking into the apartment, they observed a bald
black male, later identified as defendant Billups, wearing a T-
shirt and appearing to be asleep on the sofa. The officers called
out to Billups to ensure that he was not hurt and received no
response. They entered the apartment, and noticed that it was
partially furnished and that clothes were strewn on the floor.
Billups then awoke, and Officer Urban observed him slide his foot
(apparently in a deliberate manner) over what looked to be a bag of
crack cocaine.
The officers asked Billups for identification, which revealed
that his address was on Wentbridge Road in Richmond. After running
a records check, they discovered an outstanding warrant for
Billups, and he was arrested, searched, and taken into custody on
2
As used hereinafter, “Apartment No. 6” refers to the
apartment in the 5312 building of the Pine Brook Village Apartments
where Billups was found and arrested.
3
the warrant. After securing Billups, the officers recovered the
item he had covered with his foot, which was later confirmed to be
.11 grams of cocaine base, more commonly known as crack cocaine.
The officers found $1,840 in cash in Billups’s pockets.3
The officers proceeded to search Apartment No. 6, and Officer
Hatchett discovered, in the apartment’s kitchen, a loaded 9mm
semiautomatic pistol, a cell phone, measuring scales, a used crack
pipe, and an unopened box of sandwich baggies. These items were
located in a single-shelf, double-door cabinet over the kitchen
sink, directly above an opening that looked into the living room
where Billups had been sleeping. The firearm and cell phone were
immediately beside one another at eye level in the cabinet, and the
scales and sandwich baggies were within a foot of them. Officer
Hatchett, while looking into the living room through the opening
over the kitchen sink, asked Billups if the cell phone belonged to
him, and Billups acknowledged that it was his. Before being
removed from Apartment No. 6, Billups requested that the officers
retrieve his fur coat from an apartment closet. The officers
failed to locate any other contraband or persons in the apartment.
On October 24, 2004, six weeks before Billups’s arrest, the
Richmond police had executed a drug-related search warrant at
3
At trial, defense witness Tanya Ward provided an explanation
for Billups’s possession of the cash. She testified that she lived
with Billups on Burtwood Lane in Richmond and that, just before his
arrest, she had given him $1,800 in cash to make a mortgage
payment. This evidence was apparently not credited by the jury.
4
Apartment No. 6. At that time, it was occupied by Rashia
Blackwell, and the officers seized firearms, cocaine, and
marijuana. That search also led to the discovery of sandwich
baggies and what appeared to be cocaine in a kitchen cabinet. At
Billups’s trial, Blackwell testified that she did not know him, but
that she had seen him at a friend’s house. Blackwell testified
that she had lived in Apartment No. 6 for two years and vacated it
in early November of 2004. Prior to vacating Apartment No. 6, she
gave most of her furnishings to friends and neighbors.
Georgette Kirvin, the property manager of the Pine Brook
complex, testified that Blackwell had turned in her key to
Apartment No. 6 on December 1, 2004.4 When Kirvin walked through
the apartment that day, she observed furniture, clothing, pots,
pans, dishes, and other items, and it appeared that Blackwell had
moved in a hurry. Kirvin testified that, at the time of her walk-
through, the lock on the front door was broken and she left it
unrepaired. She did not recognize Billups and had never seen him
at Pine Brook.
On January 19, 2005, the grand jury indicted Billups, and he
was tried on January 20, 2006. At trial, the Government called DEA
Agent John Scherbenske as an expert witness in drug trafficking.
Scherbenske testified that the totality of the evidence found in
4
Georgette Kirvin was not available to testify at Billups’s
trial, but her testimony from a pretrial hearing was read to the
jury without objection.
5
Apartment No. 6 on the occasion of Billups’s arrest was consistent
with an intent to distribute drugs. On cross-examination,
Billups’s lawyer sought to ask Scherbenske about the significance
of the scales and baggies to his opinion that Billups had intended
to distribute cocaine base. Sustaining the prosecution’s
objection, the court ruled the question speculative and
hypothetical.5 When Billups’s lawyer clarified his question,
Scherbenske responded that the baggies in themselves do not
indicate distribution of drugs, in that the baggies have legal
purposes. Billups’s lawyer then asked about the cocaine base
seized from under Billups’s foot when he was arrested, and its
proximity in the apartment to the baggies. In sustaining another
objection, the court commented to the jury regarding where the
cocaine base had been found and the jury’s obligation to assess the
significance thereof, as follows:
The record shows that they were not in the same proximity
. . . . And you all have heard where these baggies were
located, allegedly under the foot of the defendant, and
where the scales were and things of that nature, so you
have already heard that. And it will be up to you
factually to determine the significance of it.
J.A. 137. Billups’s lawyer also questioned Scherbenske regarding
the significance the evidence found in the kitchen cabinet may have
5
Billups’s question to Scherbenske was framed as follows:
“[i]f the baggies, if there was no evidence baggies did not belong
to Mr. Billups, or the scale, that would be an indication, one,
that any drugs he even possessed were not for distribution.” J.A.
136. (Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
6
had if drugs had not been found in the apartment. Before being
interrupted, Scherbenske responded that, based on the time of
arrest and the amount of cash Billups had in his pocket, he could
be “conceived as selling throughout the evening.” J.A. 140.
Billups’s lawyer then interrupted Scherbenske, stating that “[y]ou
have no evidence.” Id. In response to the interruption, the court
asked the witness if “the assumption was that he sold out?” Id.Scherbenske replied, “[t]hat’s correct.”6 Id.Billups was found guilty by the jury on all four counts of the
indictment. That same day, he was sentenced to 240 months in
prison on Count One; 120 months on Count Four (60 months concurrent
with the Count One sentence, and 60 months consecutive thereto);
plus 60 months on Count Three, consecutive to the sentences imposed
on Counts One and Four.7
6
As a part of its case, the prosecution published a
stipulation between the parties establishing, most notably, (1)
that Billups had been previously convicted of a felony, and (2)
that the substance seized from Apartment No. 6 was cocaine base.
J.A. 69-72.
7
Billups was also charged and tried for simple possession of
cocaine base (“Count Two”), in violation of 21 U.S.C. § 844(a).
Judgment was never entered on Count Two, however, and it was
dismissed by the Judgment Order as a lesser included offense of
Count One. Although the Judgment Order reflects that “FOR
SENTENCING PURPOSES, COUNT TWO HAS BEEN MERGED INTO COUNT ONE,”
this language appears to be surplusage, in that Billups was never
adjudged guilty or convicted on Count Two.
7
II.
First, in assessing a sufficiency of the evidence issue, the
appropriate inquiry is whether, viewing the evidence in the light
most favorable to the Government, a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Glasser
v. United States, 315 U.S. 60, 80 (1942). We “must consider
circumstantial as well as direct evidence, and allow the Government
the benefit of all reasonable inferences from the facts proven to
those sought to be established.” United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982).
Second, we review for plain error an appellate contention not
properly preserved in the trial court. United States v. Olano, 507
U.S. 725, 731-32 (1993). Under the plain error standard, a court
of appeals may correct an error that is plain and that affects a
defendant’s substantial rights, but only if the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 732. On plain error review, an appellant
bears the burden of persuasion with respect to prejudice. United
States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).
III.
On appeal, Billups makes two contentions of error. First, he
asserts that there was insufficient evidence to support any of his
convictions. Second, he contends that he did not receive a fair
8
trial because the district court committed multiple errors in the
conduct of his trial. We address these contentions in turn.
A.
Billups first contends that there was insufficient evidence to
prove the three convictions that he has appealed. His contentions
on lack of proof are, in substance, as follows: on Count One, that
the prosecution failed to present sufficient evidence that Billups
knowingly possessed with an intent to distribute cocaine base; on
Count Three, that the prosecution failed to prove that Billups
knowingly possessed a firearm in furtherance of a drug trafficking
crime; and, on Count Four, that the prosecution failed to prove
that Billups knowingly possessed a firearm as a convicted felon.
1.
Each of the three foregoing aspects of Billups’s sufficiency
of the evidence contention required the jury to find beyond a
reasonable doubt that Billups had knowingly possessed a contraband
item underlying his convictions. More specifically, Billups
contends that the proof was insufficient on whether he knowingly
possessed cocaine base, the firearm, or drug paraphernalia.8
8
The phrase “drug paraphernalia,” as used herein, collectively
refers to the crack pipe, the scales, and the baggies seized from
the kitchen cabinet of Apartment No. 6 when Billups was arrested.
Although possession of these items is not an element of any of
Billups’s offenses of conviction, their possession is pertinent to
our assessment of the proof of Counts One and Three.
9
Possession of such contraband may, of course, be either actual or
constructive. United States v. Laughman, 618 F.2d 1067, 1076-77
(4th Cir. 1980). Constructive possession can be established by
showing “that the defendant exercised, or had the power to
exercise, dominion and control over [an] item.” Id. at 1077.
However, mere presence at a place where contraband is found is
insufficient, in and of itself, to establish constructive
possession. United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.
1984).
The trial evidence revealed that the cocaine base underlying
Count One was found under Billups’s foot next to the sofa where the
officers discovered him, and that he had placed his foot on the bag
of cocaine in an effort to conceal it. Under this evidence, it was
entirely reasonable for the jury to conclude that Billups was
attempting to conceal the contraband and that it was under his
control. Second, Billups acknowledged to the officers that he
owned the cell phone found in the kitchen cabinet containing the
9mm pistol and the other drug paraphernalia. Given the fact that
Billups was alone in Apartment No. 6, and that his cell phone was
next to the firearm and other drug paraphernalia in the kitchen
cabinet, the evidence sufficiently established that he had a stake
in the cabinet’s contents and exercised dominion and control over
it. See United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.
1980) (explaining that proximity to contraband is not enough to
10
constitute constructive possession, but that where other
circumstantial evidence is sufficiently probative, proximity to
contraband coupled with inferred knowledge of its presence will
support finding of guilt). Thus, there was sufficient evidence for
the jury to conclude that Billups possessed the cocaine base, the
firearm, and the drug paraphernalia found in Apartment No. 6 on
December 6, 2004.
Billups maintains on appeal, however, that our decision in
Goldsmith v. Witkowski, 981 F.2d 697, 701 (4th Cir. 1992),
recognizing that “even presence coupled with knowledge . . . is
insufficient to sustain a possession conviction,” undermines the
jury’s verdict against him. In Goldsmith, the prosecution
presented evidence that Goldsmith was found sitting at a table
surrounded by narcotics in an unknown person’s apartment. The
search in Goldsmith yielded additional contraband from other areas
of the house and resulted in the arrest of other persons who were
present. There was no evidence that Goldsmith himself had
exercised dominion and control over the narcotics or, more broadly,
that he controlled the apartment where he was found. In this
situation, on the other hand, Billups was the only person found in
Apartment No. 6 on December 6, 2004; he actively sought to conceal
the bag of cocaine base with his foot; and his cell phone was found
in the kitchen cabinet next to the 9mm handgun and the other drug
paraphernalia. This evidence was more than sufficient to establish
11
Billups’s dominion and control over the cocaine base and the
cabinet’s contraband contents. Thus, there was sufficient evidence
for a reasonable jury to conclude that Billups was in possession of
each of the contraband items underlying his convictions.9
2.
On Count One, in addition to claiming that he did not possess
the cocaine base, Billups contends that there was insufficient
evidence to establish that he intended to distribute cocaine base.
We must disagree, however, because the proof was otherwise. Under
the evidence, Billups was shown to possess cocaine base, the 9mm
handgun, other drug paraphernalia, and more than $1800 in cash. In
light of Agent Scherbenske’s testimony that these items were
consistent with an intention to distribute drugs, there was
sufficient evidence for a reasonable jury to conclude that Billups
intended to distribute cocaine base.
3.
On Count Three, in addition to maintaining that he did not
possess the 9mm handgun, Billups contends that there was
insufficient evidence to prove that he possessed the firearm in
furtherance of a drug trafficking crime. The 9mm handgun, however,
was found in the kitchen cabinet with the other drug paraphernalia,
9
On Count Four, Billups’s possession of the 9mm handgun is
conclusive on his insufficiency of the evidence contention, because
he stipulated to the other element of that charge, that is, being
a convicted felon.
12
and it was next to the cell phone. We have, of course, recognized
that firearms, such as a semiautomatic 9mm pistol, are often used
by drug traffickers to protect their businesses. See United States
v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (recognizing potential
use of 9mm semiautomatic pistol to protect drug distribution scheme
through preventing robberies, ensuring collections, or providing
self defense). These facts are entirely consistent with the 9mm
handgun being used by Billups for protection in furtherance of the
distribution of drugs. Id. (explaining that, in order to establish
“furtherance,” prosecution must present evidence that firearm
furthered, advanced, or helped forward drug trafficking crime,
which may include its use in protecting distribution scheme).
Although the proof as to Count Three is arguably the weakest aspect
of the prosecution’s case against Billups, we are obliged to view
the evidence in the light most favorable to the Government. In
that light, there was sufficient evidence to submit Count Three to
the jury, and a reasonable jury was entitled to conclude that the
loaded 9mm semiautomatic pistol found in the kitchen cabinet was
being used by Billups to further a drug trafficking crime.
B.
Billups contends that the district court made multiple errors
in the conduct of his trial, which, taken cumulatively, denied him
a fair trial. He asserts that the court erred in four specific
13
respects: (1) by not according him an opportunity to voir dire
Agent Scherbenske prior to qualifying him as an expert; (2) by
improperly limiting his cross-examination of Scherbenske; (3) by
misstating relevant facts to the jury when the court sustained the
prosecution’s objection to his cross-examination of Scherbenske;
and (4) by making improper statements before the jury regarding the
trial evidence. Billups failed to object at trial on any of these
points, and we thus review them for plain error only.
Billups contends that the court first erred by not permitting
him to voir dire Scherbenske’s qualifications before he was
qualified as an expert witness. Billups provides us with no
authority, however, for the proposition that a trial court’s
failure to accord counsel an opportunity to voir dire a proposed
expert witness, in and of itself, constitutes error, plain or
otherwise. Moreover, there has been no showing that Billups had
any basis for challenging Scherbenske’s qualifications as an
expert. Absent some showing that Scherbenske was not in fact
qualified, we are unable to conclude that the admission of his
testimony was error, much less plain error. Cf. United States v.
Nobles, 69 F.3d 172, 183 (7th Cir. 1995) (recognizing that law
enforcement expert testimony regarding drug trafficking aids jury’s
ability to understand nature of drug trafficking crimes).
Billups next asserts that the trial court erred when it
improperly limited his examination of Scherbenske regarding the
14
location of the evidence found in Apartment No. 6. We have
carefully considered that contention and reject it, because the
court acted within its discretion in sustaining the objection and
commenting on the location of the seized evidence. See United
States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979) (observing that
“trial judge has broad discretion to control the scope and extent
of cross-examination”). Billups further asserts, however, that in
sustaining the prosecution’s objection, the court made a material
misstatement before the jury regarding the location of the baggies
found in the kitchen cabinet. Indeed, the prosecution concedes
that the court was incorrect when it indicated that the baggies
were under Billups’s foot. The transcript reveals, however, that
the court also observed that the cocaine base and the baggies were
“not in the same proximity.” J.A. 137. When this colloquy is
examined in the proper context, the separate locations of the
cocaine base (under Billups’s foot) and the baggies (in the kitchen
cabinet) are clear, and any misstatement by the court in that
regard does not constitute plain error. See United States v.
Flores, 454 F.3d 149, 158-59 (3d Cir. 2006) (concluding that
court’s misstatement in instruction did not amount to plain error
when viewed in context).
Finally, Billups asserts that the court erred when it
commented before the jury that Scherbenske’s testimony was based on
the “assumption . . . that [Billups had] sold out” of drugs at the
15
time of his arrest. Scherbenske himself, however, confirmed the
court’s assessment by replying “[t]hat’s correct.” Thus, the
court’s statement was not erroneous, and not plain error. See
United States v. Bates, 512 F.2d 56, 58 (5th Cir. 1975) (on plain
error review, assertedly prejudicial comments must be viewed in
context).
Because the trial court did not plainly err in any of the
instances complained of by Billups, there was also no cumulative
error arising from the court’s conduct of the trial, and this
appellate contention must also be rejected.
IV.
Pursuant to the foregoing, we reject Billups’s contentions of
error and affirm his convictions on Counts One, Three, and Four.10
AFFIRMED
10
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid in the decisional process.
16