United States v. Martinez , 190 F. App'x 321 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEOBARDO SOLIS MARTINEZ,
Defendant - Appellant.
No. 05-4193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILLIP TYRONE MORRISON,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-4)
Submitted: May 19, 2006 Decided: July 19, 2006
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
William E. Loose, Asheville, North Carolina, for Appellant Phillip
Tyrone Morrison; William C. Bunting, Jr., SHUMAKE, LOOP & KENDRICK,
Charlotte, North Carolina, for Appellant Leobardo Solis Martinez.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Defendants-appellants, Phillip Morrison and Leobardo Martinez,
were convicted in federal district court of conspiracy to possess
with the intent to distribute at least five kilograms of cocaine
and at least fifty grams of cocaine base (crack), 21 U.S.C. §§ 841and 846. Morrison was also convicted of possession with intent to
distribute at least 500 grams of cocaine, id. § 841, and using and
carrying a firearm during and in relation to a drug trafficking
offense, 18 U.S.C. § 924(c). Martinez was also convicted of
possession with intent to distribute at least five kilograms of
cocaine, 21 U.S.C. § 841. Morrison received concurrent life
sentences on the drug counts plus a consecutive sixty-month
sentence for the firearm count, while Martinez was sentenced to
concurrent terms of 151 months’ imprisonment on his two
convictions. Each appellant noted a timely appeal and, for the
reasons that follow, we affirm the district court’s judgments.
Martinez challenges the district court’s admission of two
photographs depicting him holding firearms. In one of these
photographs, Martinez is nude. However, as a condition to the nude
photograph’s admission, the court ordered the government to cover
the lower half of Martinez’s nude body, which the government did.
According to Martinez, because his counsel conceded in his opening
statement that Martinez possessed a firearm, this concession
rendered the photographs inadmissible. We review evidentiary
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rulings by the court for an abuse of discretion. Old Chief v.
United States, 519 U.S. 172, 174 n.1 (1997).
Rule 402 of the Federal Rules of Evidence provides that “[a]ll
relevant evidence is admissible . . . . Evidence which is not
relevant is not admissible.” Fed. R. Evid. 402. Rule 401 defines
relevant evidence as that “having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. The Supreme Court and
this court have both held that a stipulation does not render
evidence tending to prove the underlying stipulation irrelevant
under Rules 401 or 402. See Old Chief, 519 U.S. at 178-79; United
States v. Dunford, 148 F.3d 385, 394-95 (4th Cir. 1998).
Therefore, if the photographic evidence is inadmissible, it is not
inadmissible because the concession rendered it irrelevant.
Rather, “its exclusion must rest . . . on its character as unfairly
prejudicial, cumulative or the like” under Rule 403. Old Chief,
519 U.S. at 179.
The question of whether Rule 403 bars the admission of
evidence offered to prove stipulated facts was examined in Old
Chief. The defendant in Old Chief was charged with possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g). The defendant
stipulated, for purposes of trial, that he was a convicted felon
within the meaning of § 922(g). Despite the stipulation, the
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government sought to introduce court records indicating that the
defendant’s prior offense involved assault causing serious bodily
harm. The defendant argued that, in light of the stipulation to
the prior conviction, the arrest records were overly prejudicial
under Rule 403. The Supreme Court held that, as a general matter,
“a criminal defendant may not stipulate or admit his way out of the
full evidentiary force of the case as the Government chooses to
present it.” Old Chief, 519 U.S. at 186-87. The Court reasoned
that “the prosecution[,] with its burden of persuasion[,] needs
evidentiary depth to tell a continuous story.” Id. at 190. In Old
Chief, however, the Court invoked an exception to that general
rule. It concluded that the general rule of admissibility had
“virtually no application when the point at issue is a defendant’s
legal status, dependent on some judgment rendered wholly
independently of the concrete events of later criminal behavior
charged against him.” Id.Our circuit has interpreted Old Chief to apply only in cases
where the disputed evidence “relate[s] . . . to facts far removed
in time from the underlying [crimes] with which [the defendant] was
charged.” Dunford, 148 F.3d at 396. Martinez’s case does not fall
within this exception. Unquestionably, the challenged photographic
evidence was “a relevant part of the very transactions leading to
[Martinez’s] arrest and indictment in this case.” Id. Moreover,
the photographic evidence buttressed the government’s other
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evidence suggesting that Martinez possessed firearms during drug
transactions.
Turning to the question of whether the probative value of
these photographs was outweighed by the danger of unfair prejudice,
Martinez posits that the admission of the nude photograph, which
was partially covered at the district court’s direction, was
unfairly prejudicial. We reject this argument. The photograph was
prejudicial because it established that Martinez was so comfortable
with possessing firearms that he was willing to be photographed
with the firearms. Cf. United States v. Mohr, 318 F.3d 613, 619-20
(4th Cir. 2003) (“Rule 403 only requires suppression of evidence
that results in unfair prejudice--prejudice that damages an
opponent for reasons other than its probative value.”). Moreover,
in light of the steps taken by the district court to ensure that
Martinez was not depicted nude, there is nothing unfair about the
prejudicial impact of the photograph.
Under these circumstances, it was not an abuse of discretion
for the district court to admit the challenged photographic
evidence despite counsel for Martinez’s concession.
Martinez next contends that the district court erred when it
refused to suppress statements he made to law enforcement officers.
We review de novo the court’s legal conclusions on a motion to
suppress, but review the court’s factual findings underlying those
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conclusions for clear error. United States v. Guay, 108 F.3d 545,
549 (4th Cir. 1997).
Statements obtained from a defendant during custodial
interrogation are presumptively compelled in violation of the Fifth
Amendment’s Self-Incrimination Clause and are therefore
inadmissible in the government’s case-in-chief. Miranda v.
Arizona, 384 U.S. 436, 457-58 (1966). The government can overcome
this presumption of coercion by showing that law enforcement
officers (1) adequately informed the defendant of his Miranda
rights and (2) obtained a waiver of those rights. Id. at 444.
A defendant may waive his Miranda rights only if he does so
“knowingly and voluntarily.” North Carolina v. Butler, 441 U.S.
369, 373 (1979). Waiver need not be express, but may be implied
from the defendant’s actions and words. Id. To determine whether
a defendant has waived his Miranda rights, we look to the “totality
of the circumstances.” Moran v. Burbine, 475 U.S. 412, 421 (1986)
(internal quotation marks omitted). In assessing knowingness, we
ask whether the defendant had “full awareness of both the nature of
the right being abandoned and the consequences of the decision to
abandon it.” Id. In assessing voluntariness, we ask whether the
defendant’s statement was “the product of a free and deliberate
choice [or the result of] intimidation, coercion, or deception.”
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Although Martinez testified that he did not recall being
advised that he had the right to have an attorney present during
his interrogation, Officer Manuel Ascencio of the Statesville,
North Carolina Police Department testified that he twice advised
Martinez of his right to counsel, the first time reading in Spanish
from a card he kept with him for the purpose of reading Miranda
rights to suspects being arrested and the second time reading from
a waiver of rights form employed by the Hickory, North Carolina
Police Department to advise and request the waiver of Miranda
rights. According to Officer Ascencio, Martinez stated that he
understood each of his Miranda rights and that he wished to talk
with the officers, after which he signed the waiver of rights form
prior to questioning. Detective Brian Adams of the Hickory Police
Department testified that, although he did not understand Spanish,
it appeared to him that Officer Ascencio advised Martinez of his
rights and that Martinez understood his rights when he decided to
sign the waiver of rights form. In light of this evidence, we hold
that the district court did not err when it concluded that Martinez
was, in fact, properly advised of his Miranda rights and that
Martinez knowingly and voluntarily waived those rights.
Morrison challenges two pieces of evidence admitted by the
district court pursuant to Rule 404(b). Rule 404(b) of the Federal
Rules of Evidence provides, in pertinent part, that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
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character of a person in order to show action in conformity
therewith” but may be admissible “for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). Rule 404(b) is an inclusive rule, allowing evidence of
other crimes or acts except that which tends to prove only criminal
disposition. United States v. Queen, 132 F.3d 991, 994-95 (4th
Cir. 1997). Evidence of prior acts is admissible under Rule 404(b)
and Rule 403 if the evidence is: (1) relevant to an issue other
than the general character of the defendant; (2) necessary; (3)
reliable; and (4) if the probative value of the evidence is not
substantially outweighed by its prejudicial effect. Id. at 997.
Limiting jury instructions explaining the purpose for admitting
evidence of prior acts and advance notice of the intent to
introduce prior act evidence provide additional protection to
defendants. Id.In this case, Morrison objected to evidence of a 1993 drug
transaction he was involved in, as well as a 1999 automobile stop,
during which Morrison provided an alias and a firearm and more than
$40,000 in cash were seized. With respect to the 1993 incident,
while it occurred prior to the time of the conspiracy as alleged in
the indictment, this evidence was admitted pursuant to a limiting
instruction, and by involving the same type of conduct alleged in
the indictment, was relevant to issues other than character, for
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example, Morrison’s state of mind and absence of mistake.
Moreover, the evidence was necessary to the government’s efforts to
prove a hotly contested issue at trial: whether Martinez
participated in the charged conspiracy. Finally, the probative
value of the 1993 incident was high because it related to a hotly
contested issue at trial, and any unfair prejudice certainly was
negated by the district court’s limiting instruction.
The 1999 incident was clearly relevant to Morrison’s
participation in the charged conspiracy. The evidence concerning
the 1999 transaction related to events within the charged time
frame of the conspiracy and its admission into evidence, therefore,
did not implicate Rule 404(b). Moreover, the failure of the
officers to find drugs during the 1999 traffic stop is of no
consequence because one would expect only a large amount of cash
and firearms to be present in a car being used to acquire (as
opposed to deliver) a large quantity of drugs.
Morrison also raises two issues concerning his sentence. The
Probation Office completed a presentence report (PSR) in
preparation for Morrison’s sentencing. Based on a determination
that Morrison was responsible for more than 1.5 kilograms of crack,
the PSR calculated a total offense level of 38. This offense
level, when combined with Morrison’s criminal history category of
VI, yielded a sentencing range under the Guidelines of 360 months
to life imprisonment. Because Morrison had previously been
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convicted of two drug felony offenses, the PSR noted that 21 U.S.C.
§ 841(b)(1)(A) dictated a term of imprisonment of life, while 18
U.S.C. § 924(c)(1)(A)(i) required a mandatory consecutive sentence
of not less than five years be added to Morrison’s life term of
imprisonment.
Morrison claims that the enhancement of his sentence with a
prior conviction that was committed during the course of the
conspiracy violated both 21 U.S.C. § 841 and his rights guaranteed
by the Double Jeopardy Clause. Morrison’s double jeopardy argument
has been rejected by this court. See United States v. Ambers, 85
F.3d 173, 178 (4th Cir. 1996) (“Enhancing [a defendant’s] sentence
for conspiracy because of a prior conviction, where one of the
overt acts supporting the conspiracy resulted in the prior
conviction . . . presents no double jeopardy problem. The
enhancement increases the sentence for the current offense
(conspiracy), not the sentence for the distinct, prior offense.”).
Morrison fairs no better with his § 841 argument. Section
841(b)(1)(A) provides that, if a person commits a violation of that
subparagraph 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.” 21 U.S.C. § 841(b)(1)(A).
According to Morrison, because the instant drug conspiracy
allegedly began in January 1995 and continued until July 2003, his
drug conviction in August 1995 is not really a “prior” felony for
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purposes of § 841 because it postdated the onset of the drug
conspiracy. Morrison’s argument is unpersuasive. “Conspiracy is
a continuing offense, constantly renewing itself.” United States
v. Carter, 300 F.3d 415, 427 (4th Cir. 2002). Accordingly,
Morrison’s 1995 conviction “both preceded and postdated the
‘beginning’ of the conspiracy, because conspiracies, by their very
nature, do not have a ‘beginning’ in the conventional sense of the
word.” Id.For the reasons stated herein, the judgments of the district
court are affirmed.*
AFFIRMED
*
During the pendency of his appeal, Morrison filed a motion
for appointment of substitute counsel, a motion to hold the appeal
in abeyance pending a ruling on the motion for appointment of
substitute counsel, and a motion to file a pro se supplemental
brief. We deny the motion for appointment of substitute counsel
and dismiss as moot the motion to hold the appeal in abeyance. We
grant the motion to file a pro se supplemental brief. We have
reviewed the arguments raised in the pro se supplemental brief and
conclude that they have no merit.
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