United States v. Bullock ( 2000 )


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  •                                                Filed:   February 10, 2000
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    Nos. 95-5983(L)
    (CR-93-407-MJG)
    United States of America,
    Plaintiff - Appellee,
    versus
    Sean Andre Bullock, etc., et al,
    Defendants - Appellants.
    O R D E R
    The court amends its opinion filed January 27, 2000, as
    follows:
    On page 7, first paragraph, line 2 -- a new footnote 4 is
    added, which reads:     “We note that Hester is represented by new
    counsel on this appeal.     Neither Mr. Goldstein nor his law firm
    represented   Hester   during   the   trial.”      Footnotes   previously
    numbered 4-11 are renumbered 5-12.
    For the Court - By Direction
    /s/ Patricia S. Connor
    Clerk
    UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    SEAN ANDRE BULLOCK, a/k/a Derrick
    No. 95-5983
    Taylor, a/k/a Big Man, a/k/a
    Kenneth Taylor, a/k/a Tyrone
    Harris,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 95-5984
    BYRON MELVIN GEORGE, a/k/a Amar
    Bomani Mawusi-Zulu,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    STEVEN ERNEST HESTER, a/k/a Melvin
    No. 96-4028
    Ball, a/k/a Bobo, a/k/a Byron
    Melvin Falls, a/k/a Owen Price,
    a/k/a Owen Davis, a/k/a Bob, a/k/a
    Melvin Ball, Jr., a/k/a U.S.A.,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the District of Maryland, at Baltimore.
    Marvin J. Garbis, District Judge.
    (CR-93-407-MJG)
    Argued: December 3, 1999
    Decided: January 27, 2000
    Before NIEMEYER and WILLIAMS, Circuit Judges,
    and HAMILTON, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Arthur Samuel Cheslock, Baltimore, Maryland; Martin H.
    Schreiber, II, BROWN, GOLDSTEIN & LEVY, L.L.P., Baltimore,
    Maryland, for Appellants. John Vincent Geise, Assistant United
    States Attorney, Bonnie S. Greenberg, Assistant United States Attor-
    ney, UNITED STATES ATTORNEY'S OFFICE, Greenbelt, Mary-
    land, for Appellee. ON BRIEF: Daniel F. Goldstein, BROWN,
    GOLDSTEIN & LEVY, L.L.P., Baltimore, Maryland, for Appellant
    Hester; Gerald D. Glass, Towson, Maryland, for Appellant Bullock.
    Lynne A. Battaglia, United States Attorney, UNITED STATES
    ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    2
    OPINION
    PER CURIAM:
    Appellants Steven Ernest Hester, Byron Melvin George, and Sean
    Andre Bullock were named along with four other defendants in an
    eleven-count indictment alleging various federal drug and firearm
    offenses. Hester was charged in nine counts; George was charged in
    eight counts; and Bullock was charged in five counts. Appellants
    were tried together with two other defendants, Dawon Markham and
    Steven Wright, in the United States District Court for the District of
    Maryland.1 After a two-and-a-half-month trial and several days of
    deliberation, the jury returned a verdict acquitting Markham and
    Wright on the single count in which they were named, convicting
    Bullock on three counts, convicting George on four counts, and con-
    victing Hester on one count. The jury was unable to reach a verdict
    on two of Hester's other counts.
    Hester and Bullock were sentenced to life imprisonment and
    George received a thirty-year sentence. Appellants now appeal,
    asserting that various errors were made at their trial that warrant
    reversal. In addition, Bullock argues that he should not have received
    a life sentence. We disagree and affirm Appellants' convictions and
    sentences.
    I.
    In March 1993, State's Attorneys for Prince George's County and
    Howard County, Maryland applied for permission to intercept phone
    conversations on phone lines associated with a suspected drug organi-
    zation believed to be led by Hester. The applications requested wire-
    taps in Prince George's County and Howard County. In support of the
    applications, Prince George's County Police Detective Maurice Hicks
    _________________________________________________________________
    1 As noted above, two other codefendants were also named in the
    indictment. One, Lawrence Day, testified on the Government's behalf in
    exchange for the Government's agreement that he would be prosecuted
    on state charges only. The other, Clyde Robinson, was originally prose-
    cuted with Appellants, but the Government dismissed the indictment
    against him on the eighth day of trial.
    3
    and FBI Special Agent Steven Stowe (the affiants) supplied an
    accompanying affidavit.2 The 100-plus page affidavit described in
    detail the investigations into the Hester drug operation to date and
    highlighted Hester's reputation for violence, including his suspected
    involvement in several murders. One of the murders involved an indi-
    vidual who had attempted to cooperate with police concerning Hes-
    ter's criminal activity. The affidavit also documented information
    learned through unidentified tipsters and confidential sources. The
    affidavit delineated several alternative investigative procedures that
    had already been utilized unsuccessfully in the investigation and con-
    cluded that a wiretap was a necessary investigative technique to pros-
    ecute successfully Hester and his cohorts. The affidavit expressly
    noted, among other things, that efforts to infiltrate the organization
    were not attempted because they "reasonably appear[ed] to be too
    dangerous." (J.A. at 120.) The affidavit also discussed the difficulties
    involved in relying on interviews with persons connected with the
    conspiracy:
    Based on our experience and the experience of other law
    enforcement officers involved in this investigation, we
    believe that interviews of persons who could assist with this
    investigation would not be successful because the persons
    who are knowledgeable about the content of the conversa-
    tions and illegal transactions are the direct participants in the
    conversations and transactions and are themselves the tar-
    gets of this investigation. Numerous interviews of other per-
    sons who may be able to assist this investigation have been
    attempted and have been unsuccessful primarily because
    such individuals fear for their physical safety or because of
    their own culpability. Many persons who have been inter-
    viewed during this investigation or prior investigations of
    criminal activity involving some of these targets have stated
    that Steven Ernest Hester has a violent temper and is known
    to retaliate against people who interfere with his illegal
    activities.
    _________________________________________________________________
    2 Virtually identical affidavits accompanied the applications for the
    Prince George's County and Howard County wire intercept orders.
    4
    (J.A. at 163.) Maryland state court judges for Prince George's County
    and Howard County ordered the wire intercepts and the phone lines
    were monitored for about a month.
    Evidence gathered from the wire intercepts implicated Appellants
    in various drug offenses and several arrests were made at the conclu-
    sion of the investigation. Many of the coparticipants in the Hester
    drug ring agreed to testify for the Government, including Lawrence
    Day and Steven Brown. Day was originally named in the indictment,
    but later entered an agreement with the Government to testify against
    Appellants in exchange for being prosecuted only at the state level
    with a recommended sentence of ten years. Day's testimony was
    damaging to Appellants, as he testified that he knew Appellants and
    that he had engaged in illegal drug activities with them.
    Day's testimony revealed that he had provided information to the
    police concerning Hester and Bullock on three past occasions in 1991
    and 1992. Day had once received $500 for the information he pro-
    vided and had given the police his phone number and pager number.
    The Government contends that the information Day provided to
    police concerned Hester and Bullock's participation in violent activi-
    ties and did not include information related to illegal drug activities.
    The Government claims that Day was essentially a tipster on limited
    occasions. Day's own testimony supports the Government's portrayal.
    Day testified that he was not involved in drug-related activities when
    he went to the police and that he did not provide any information
    related to drug dealing.
    Conversations intercepted through the wiretaps also indicated that
    Hester obtained drugs from New York and evidence presented at trial
    verified Hester's connection to New York. Steven Brown testified
    that George had told him about a trip he was taking to New York.
    Brown stated that George had told him that he was going to New
    York to purchase cocaine for Hester. After testifying to Hester's
    involvement in this New York transaction, however, Brown indicated
    that George had not told him that anyone else was "getting any drugs"
    out of the trip to New York. (J.A. at 284-85.) The prosecution then
    asked, "Was Steve Hester involved in this transaction?" (J.A. at 285.)
    Brown answered, "I didn't really know if [George was] getting some
    5
    for Steve Hester. [George] told me that he was going for Steve Hester,
    but I don't know if it was for him or not." (J.A. at 285.)
    George returned from this trip to New York on April 14, 1993. On
    that day, George and an unindicted coparticipant, April Davis, arrived
    in Washington, D.C. on a bus from New York. After getting off the
    bus, the two were together briefly and then moved to opposite sides
    of the street as they walked away from the bus station. Davis was car-
    rying her seven-month-old daughter and a diaper bag.3 Police con-
    fronted George and Davis and, pursuant to a consensual search of
    Davis's diaper bag, discovered a quantity of cocaine base. Both
    George and Davis were arrested.
    Hester testified in his own defense that although he was involved
    in selling heroin, he never sold cocaine as alleged in the indictment.
    According to a Government expert witness's report, drug parapherna-
    lia seized from Hester's girlfriend's apartment contained confirmed
    traces of heroin. At trial, Hester's attorney asked this witness if he had
    also discovered any traces of cocaine on one of these items, a razor
    blade. The expert witness responded that he had in fact found small,
    unconfirmable traces of cocaine on a few exhibits. On redirect, the
    Government asked the expert to explain his answer. The expert testi-
    fied that, as his notes reflected, he had found small traces of cocaine
    on various drug-related items seized from Hester's girlfriend's resi-
    dence but did not include this information in his report because the
    traces were too small to confirm. Hester and his codefendants had
    received a copy of the expert's notes and report prior to trial.
    Throughout the trial, Appellants moved for severances and mistri-
    als. Among the reasons cited in support of these motions were Hes-
    ter's occasionally unruly courtroom behavior, Hester's testimony
    allegedly implicating his codefendants, Appellants' use of defenses
    that were purportedly antagonistic to one another, and conduct by
    _________________________________________________________________
    3 Testimony from an expert witness indicated that drug dealers often
    used women with children as drug couriers because police would tend
    not to focus on these women. A female witness who was involved in the
    Hester organization also testified that she had brought her daughter along
    on drug business at Hester's urging "[b]ecause it would look better if
    [she] had a child with [her]." (J.A. at 489.)
    6
    Hester's defense counsel that resulted in the trial judge admonishing
    the attorney.4 Perhaps the most dramatic event that caused each Appel-
    lant to move for a mistrial and severance occurred on the thirty-third
    day of trial as the jury was returning to the courtroom following a
    recess in Hester's testimony. As the jury was entering, George
    "slugged" Hester, knocking him to the floor. (J.A. at 636.) A police
    detective who was in the courtroom at the time of the incident
    recounted what he saw for the record: "I didn't actually see anybody
    hit anybody. . . . But after the incident, as everybody was walking
    away, I observed Byron George kind of smile and wink at Hester on
    the floor. To me, it looked planned." (J.A. at 644.) The trial judge voir
    dired the jury concerning the incident. Most of the jurors indicated
    that they had not seen what happened. Many jurors indicated, how-
    ever, that they had seen Hester on the floor and, based upon where
    George was standing, concluded that George had hit Hester. No juror
    indicated that the incident would affect his or her ability to judge the
    case in any way, although some stated that they did not "think" it
    would have an effect. After conducting this voir dire of the jury, the
    district court provided a limiting instruction.5
    At the conclusion of the presentation of evidence, the jury deliber-
    ated for several days. The jury returned a verdict acquitting Markham
    and Wright on the single count in which they were named, conspiracy
    to distribute and possess with intent to distribute cocaine base, in vio-
    _________________________________________________________________
    4 We note that Hester is represented by new counsel on this appeal.
    Neither Mr. Goldstein nor his law firm represented Hester during
    the trial.
    5 The instruction was as follows:
    We had an unfortunate incident, and I'm confident that it's not
    going to be repeated. In any event, as I have explained to each
    one of you, it doesn't have to do with this case in terms of your
    judging this case. It's based strictly on the evidence.
    I want to feel very, very secure -- and you've all promised me
    this -- that when this case gets to you, which I hope will be
    fairly soon, that every defendant and the government will each
    get a fair trial based on the evidence, and that events such as
    occurred here have nothing to do with it.
    After it's all over, we can talk about anything you want to talk
    about with regard to this event, but it is a non-subject from now
    on. It is simply not to be discussed at all.
    (J.A. at 675.)
    7
    lation of 
    21 U.S.C.A. § 846
     (West 1999). Hester was convicted on
    one count for possession with intent to distribute cocaine base, 
    21 U.S.C.A. § 841
    (a)(1) (West 1999). Hester was acquitted on six counts
    and the jury was unable to reach a verdict on two counts concerning
    conspiracy to distribute and possess with intent to distribute cocaine
    base, 
    21 U.S.C.A. § 846
    , and using a juvenile to distribute cocaine
    base, 
    21 U.S.C.A. § 861
    (a)(1) (West 1999). George was convicted on
    four of the eight counts in which he was named: conspiracy to distrib-
    ute and possess with intent to distribute cocaine base, 
    21 U.S.C.A. § 846
    , two counts of possession with intent to distribute cocaine base,
    
    21 U.S.C.A. § 841
    (a)(1), and use of a minor to assist in avoiding
    detection of a drug crime, 
    21 U.S.C.A. § 861
    (a)(2) (West 1999). Bul-
    lock was convicted on three of the five counts in which he was
    named: conspiracy to distribute and possess with intent to distribute
    cocaine base, 
    21 U.S.C.A. § 846
    , and two counts of possession with
    intent to distribute cocaine base, 
    21 U.S.C.A. § 841
    (a)(1).
    After the trial, the district court denied Appellants' motions to sup-
    press the evidence from the wiretaps and for a new trial. Both motions
    argued that the wiretap applications were faulty.
    Hester and Bullock received life sentences and George received a
    sentence of thirty years imprisonment. All three now appeal, alleging
    that various errors were committed at their trial. In addition, Bullock
    challenges his life sentence. We address Appellants' arguments
    below.
    II.
    Appellants first contend that the wiretap authorization was invalid,
    and, therefore, all evidence gained from the wire intercepts should
    have been suppressed. Appellants argue that the affidavit connected
    with the applications for wire intercept authorization in Prince
    George's County and Howard County failed adequately to disclose
    the availability of Lawrence Day to infiltrate the Hester drug organi-
    zation. Because of this purported omission, Appellants assert that the
    so-called "exhaustion" requirement of the Maryland wiretap statute
    8
    was not complied with. We disagree and affirm the district court's
    ruling that the wiretap authorization was valid.6
    In United States v. Glasco, 
    917 F.2d 797
     (4th Cir. 1990), we inti-
    mated that when a state court authorizes a wiretap, as was done here,
    state wiretapping law should govern the admissibility of the wiretap
    evidence in federal court. See 
    id. at 799
    . In this case, we will deter-
    mine whether the wire intercept evidence was properly admitted
    under Maryland law, although we note that the relevant provision,
    Maryland's "exhaustion" requirement, is identical to federal wiretap
    law, and, thus, whether we analyze this case under state or federal law
    is of little consequence.7
    Although we have indicated that we will review deferentially an
    issuing court's finding that the application satisfied the "exhaustion"
    requirement, we have heretofore not enunciated a specific standard of
    review. See United States v. Smith, 
    31 F.3d 1294
    , 1298 (4th Cir.
    1994). We need not settle this question of the proper standard of
    review now, because we are convinced that under even the least def-
    erential standard the applications for the wire intercept orders issued
    in this case easily satisfied the "exhaustion" requirement.
    Maryland law requires strict compliance with all "preconditions" to
    obtaining a wiretap. See, e.g., Allen v. State, 
    597 A.2d 489
    , 493 (Md.
    _________________________________________________________________
    6 We also reject Appellants' argument that the purported failure of the
    Howard County Chief of Police to receive formal notification under Md.
    Ann. Code art. 27, § 298(f)(2)(ii) (1996) of Detective Hicks's and Spe-
    cial Agent Stowe's authorization to conduct wire intercepts in Howard
    County somehow requires suppression of the wiretap evidence. We note
    that Appellants are unable to cite any support for this proposition and our
    independent research uncovered none.
    7 Under Maryland law, an application for an order authorizing a wiretap
    must contain "[a] full and complete statement as to whether or not other
    investigative procedures have been tried and failed or why they reason-
    ably appear to be unlikely to succeed if tried or to be too dangerous."
    Md. Code Ann., Cts. & Jud. Proc., § 10-408(a)(3) (1998). Officials
    applying for a wiretap, therefore, must demonstrate that they have "ex-
    hausted" other alternative methods of surveillance and that a wiretap is
    necessary. The federal wiretap statute contains an identical provision. 
    18 U.S.C.A. § 2518
    (1)(c) (West 1970).
    9
    Ct. Spec. App. 1991). The failure to comply with a "precondition" set
    forth in the wiretap statute "requires suppression of all the evidence
    obtained under the wiretap." State v. Mazzone, 
    648 A.2d 978
    , 980
    (Md. 1994). As noted above, among these "preconditions" is the
    requirement that applicants seeking wiretap orders provide "[a] full
    and complete statement as to whether or not other investigative proce-
    dures have been tried and failed or why they reasonably appear to be
    unlikely to succeed if tried or to be too dangerous." Md. Code Ann.,
    Md. Cts. & Jud. Proc., § 10-408(a)(3) (1998). The disjunctive nature
    of this requirement permits the wiretap applicant to
    establish the need for a wiretap by showing either (i) that
    normal investigative procedures have been tried and failed,
    or (ii) that normal investigative procedures, though not yet
    tried, reasonably appear to be either unlikely to succeed if
    tried or too dangerous. In reality this gives the government
    three alternative ways to establish the need for a wiretap.
    Smith, 
    31 F.3d at
    1298 n. 2 (construing the exhaustion requirement
    contained in the federal wiretap statute) (internal quotation marks and
    citations omitted).
    The affidavit attached in support of the applications for wiretap
    orders plainly met this exhaustion requirement. First, the affidavit set
    forth in detail the investigative techniques attempted to date in bring-
    ing the Hester organization to justice. Among the numerous tech-
    niques discussed in the affidavit were the use of tipsters and
    confidential sources. Second, the affidavit added that further attempts
    to rely on interviews with persons knowledgeable about the Hester
    organization would likely be futile because many of those persons
    would themselves be targets of the investigation. See, e.g., Bell v.
    State, 
    429 A.2d 300
    , 303 (Md. Ct. Spec. App. 1981) ("The govern-
    ment need not prove to a certainty that such techniques will not suc-
    ceed if -- as stated in the statute -- it reasonably appears to be
    unlikely to succeed." (internal quotation marks and alterations omit-
    ted)). Finally, the affidavit provided a detailed account of Hester's
    suspected involvement in various violent activities, including the
    murders of several persons, and concluded that attempts to infiltrate
    the conspiracy "reasonably appear[ ] to be too dangerous." (J.A. at
    120.) We believe that Hester's reputation for violence alone, as out-
    10
    lined in the affidavit, amply supported the need for a wiretap. As we
    noted in Smith, any one of these grounds would suffice to satisfy the
    exhaustion requirement. Here, the applicants met all three methods of
    establishing the need for the wiretap as set forth under the "exhaus-
    tion" provision.
    In its 100-plus pages, the affidavit "full[y] and complete[ly]"
    informed the issuing judges of previously attempted investigatory
    techniques and the reasons why a wiretap was thought necessary. Fur-
    thermore, contrary to Appellants' assertions, the affidavit can easily
    be read to reference Lawrence Day himself. The affidavit discussed
    the prior use of tipsters to learn about Hester's criminal activity. Day
    was an occasional tipster. The affidavit also indicated that attempts to
    interview persons who could assist in the investigation had been
    unsuccessful, and future attempts likely would be unsuccessful as
    well because those persons are "themselves the targets of this investi-
    gation" and, in any event, these attempts would be extremely danger-
    ous. Day was himself a "target" in the investigation, as evidenced by
    his arrest and subsequent prosecution under state law, and the affiants
    could reasonably conclude that attempts to use Day to infiltrate the
    drug conspiracy would be unsuccessful.
    For these reasons, we hold that the applications for wiretaps in this
    case strictly complied with the "exhaustion" requirement under Mary-
    land's wiretap law.
    III.
    Having concluded that the requests for wiretaps in this case met the
    requirements of Maryland's wiretap statute, we turn now to Appel-
    lants' alternative argument that the district court should have held a
    Franks evidentiary hearing, see Franks v. Delaware, 
    438 U.S. 154
    (1978),8 to determine the integrity of the affidavit when it learned that
    _________________________________________________________________
    8 In Franks, the Supreme Court held that in certain limited situations
    a defendant can attack the validity of an affidavit in support of a search
    warrant in an evidentiary hearing. See Franks v. Delaware, 
    438 U.S. 154
    ,
    171 (1978). We have extended the Franks rule to situations involving
    affidavits in support of wiretaps as well. See , e.g., United States v.
    Muldoon, 
    931 F.2d 282
    , 286 (4th Cir. 1991) (holding that a Franks hear-
    ing was unwarranted because the defendant failed to make the necessary
    preliminary showing).
    11
    the affiants may have omitted relevant information concerning Day's
    availability to infiltrate the Hester organization. A Franks hearing is
    appropriate only when "affiants omit material facts with the intent to
    make, or in reckless disregard of whether they thereby made, the affi-
    davit misleading" and when the omission is "necessary to the finding
    of probable cause." United States v. Colkley , 
    899 F.2d 297
    , 300-01
    (4th Cir. 1990) (internal quotation marks omitted).
    In this case, we find the district court's denial of a Franks hearing
    eminently reasonable. There is no factual support for the contention
    that the affiants intended to mislead the issuing judge, and we further
    conclude that the affidavit was not misleading. The affidavit set forth
    information that can fairly be read to reference Day's limited role as
    a tipster in prior police investigations into the Hester organization. In
    addition, the affiants explicitly stated that they believed that relying
    on persons connected with the conspiracy would be unsuccessful.
    Certainly, Day would be included in this group. Moreover, even if the
    affidavit's failure explicitly to spell out the full extent of Day's previ-
    ous involvement served to mislead the issuing judge, we find that any
    omission was unnecessary to finding probable cause to order the wire-
    tap. Given the Hester organization's reputation for violence, as
    spelled out in the affidavit, even if Day were available to penetrate the
    drug ring, the affiants' conclusion that attempts to infiltrate the orga-
    nization would be too dangerous amply establishes probable cause to
    order the wiretap. We therefore hold that the district court did not err
    in concluding that a Franks hearing was unwarranted.
    IV.
    Appellants next argue that their cases should have been severed
    from one another under Federal Rule of Criminal Procedure 14.9
    _________________________________________________________________
    9 Federal Rule of Criminal Procedure 14 provides in relevant part:
    If it appears that a defendant or the government is prejudiced
    by a joinder of offenses or of defendants in an indictment or
    information or by such joinder for trial together, the court may
    order an election or separate trials of counts, grant a severance
    of defendants or provide whatever other relief justice requires.
    Fed. R. Crim. P. 14.
    12
    Appellants made numerous requests for severance throughout the
    forty-four-day trial and the district court repeatedly denied the
    motions. The basis for these motions ranged from Hester's courtroom
    outbursts to perceived antagonistic defenses. "[T]he decision to deny
    severance, which is within the sound discretion of the district judge,
    will not be overturned unless the defendant affirmatively demon-
    strates a clear abuse of discretion through having been deprived a fair
    trial and having suffered a miscarriage of justice." United States v.
    Spitler, 
    800 F.2d 1267
    , 1271-72 (4th Cir. 1986).
    We hold that the district court did not abuse its discretion in this
    case. "The basic rule is that persons who have been indicted together,
    particularly for conspiracy, should be tried together." United States v.
    Tipton, 
    90 F.3d 861
    , 883 (4th Cir. 1996). The Supreme Court has
    made clear that a Rule 14 severance should be granted only in excep-
    tional cases in which "there is a serious risk that a joint trial would
    compromise a specific trial right of one of the defendants, or prevent
    the jury from making a reliable judgment about guilt or innocence."
    Zafiro v. United States, 
    506 U.S. 534
    , 539 (1993). The Zafiro Court
    stressed that even if the risk of prejudice to a codefendant is high,
    "limiting instructions . . . often will suffice to cure any risk of preju-
    dice." 
    Id.
     Moreover, as we noted in United States v. Porter, 
    821 F.2d 968
     (4th Cir. 1987), "[n]o prejudice exists if the jury could make indi-
    vidual guilt determinations by following the court's cautionary
    instructions, appraising the independent evidence against each defen-
    dant. Convictions should be sustained if it may be inferred from the
    verdicts that the jury meticulously sifted the evidence." 
    Id. at 972
    .
    Here, all Appellants were named in the same indictment and
    charged with, among other things, conspiracy to distribute and pos-
    sess with intent to distribute cocaine base; thus, there was a presump-
    tion that they should be tried together. In addition, the district court
    instructed the jury: (1) that the Government has the burden of proving
    beyond a reasonable doubt that each defendant individually commit-
    ted the crimes with which he was charged; (2) that the jury must con-
    sider each defendant separately; and (3) that each defendant was
    entitled to have his case decided based solely upon the evidence
    applicable to him. This type of instruction is entirely consistent with
    the one approved of in Zafiro, and would have cured any risk of prej-
    udice. See Zafiro, 
    506 U.S. at 541
    . Furthermore, in this case the jury's
    13
    verdicts demonstrate that it carefully "sifted" through the evidence
    and followed the district court's instructions. The jury acquitted two
    defendants outright, convicted Hester on only one count while reach-
    ing an impasse on two other counts, and convicted Bullock and
    George on three and four counts, respectively. These verdicts clearly
    indicate that the jury was able to consider each defendant separately
    and heed the trial judge's instructions. We are confident that the joint
    trial of Appellants did not deprive them of a fair trial or result in a
    miscarriage of justice, and we affirm the district court's decision not
    to grant a severance.
    V.
    Because Appellants specifically argue that they should have
    received a mistrial based upon the incident in which George slugged
    Hester as the jury was reentering the courtroom following a recess,
    we consider the incident separately. The denial of a motion for mis-
    trial, like a denial of a motion for severance, is reviewed for abuse of
    discretion. See United States v. West, 
    877 F.2d 281
    , 287-88 (4th Cir.
    1989). As we stated in West, "[a] defendant must show prejudice in
    order for the court's ruling to constitute an abuse of discretion, and
    no prejudice exists if the jury could make individual guilt determina-
    tions by following the court's cautionary instructions." 
    Id. at 288
    .
    In this case, the incident in question was ably handled by the trial
    judge and did not prejudice Appellants. Following this incident, the
    district court voir dired the jury and no juror indicated that he or she
    would be unable to judge the case properly based only upon the
    evidence.10 After conducting this voir dire, the district court provided
    the following limiting instruction:
    _________________________________________________________________
    10 Appellants stress that some jurors stated that they did not "think" the
    incident would affect their ability to judge the case. Appellants claim that
    these jurors were "ambivalent" about whether they could properly decide
    the case. (Appellants' Br. at 36.) We have determined before that simply
    because a juror responds that she "thinks" she can properly judge a case
    fairly does not warrant dismissing her. See United States v. Hines, 
    943 F.2d 348
    , 353 (4th Cir. 1991). In Hines, we explained that "[i]t may be
    appropriate for such a response to provoke additional inquiry to deter-
    mine if `I think so' reflects any hesitancy, but the trial court is in the best
    position to determine the assertiveness of such a response." 
    Id.
     Similarly,
    here, we find that the district court was in the best position to conclude
    whether the jurors adequately indicated that they could fairly judge the
    case.
    14
    We had an unfortunate incident, and I'm confident that
    it's not going to be repeated. In any event, as I have
    explained to each one of you, it doesn't have to do with this
    case in terms of your judging this case. It's based strictly on
    the evidence.
    I want to feel very, very secure -- and you've all prom-
    ised me this -- that when this case gets to you, which I hope
    will be fairly soon, that every defendant and the government
    will each get a fair trial based on the evidence, and that
    events such as occurred here have nothing to do with it.
    After it's all over, we can talk about anything you want
    to talk about with regard to this event, but it is a non-subject
    from now on. It is simply not to be discussed at all.
    (J.A. at 675.)
    The district court thus, in addition to carefully questioning the
    jurors about George and Hester's incident, provided appropriate cau-
    tionary instructions. Again, as demonstrated by the jury's verdicts, the
    jury was able to heed the district court's instructions and consider
    each defendant separately based only upon the evidence presented at
    trial. We think that the manner in which the trial judge handled the
    incident was more than adequate even without considering his
    unequaled position to determine the effect the incident might have
    had on the jury. We also note that a ruling that a mistrial was required
    would "encourage future misconduct by defendants" because "it
    would provide an easy device for defendants to provoke mistrials
    whenever they might choose to do so." West, 
    877 F.2d at 288
     (internal
    quotation marks omitted). Because we are convinced that Appellants
    were not prejudiced by the incident involving George and Hester, we
    affirm the district court's ruling denying the motion for mistrial.
    VI.
    Appellants argue that the Government violated 
    18 U.S.C.A. § 201
    (c)(2) (West Supp. 1999), when it presented testimony from wit-
    nesses that had received promises from the Government that they
    15
    would not be prosecuted for their roles in the drug conspiracy. This
    argument is foreclosed by binding Circuit precedent. See United
    States v. Richardson, 
    195 F.3d 192
    , 196-97 (4th Cir. 1999) (holding
    that the Government does not violate § 201(c)(2) when it "act[s] in
    accordance with its statutory authority to use immunity, leniency, and
    plea agreements to obtain truthful testimony").
    VII.
    Hester argues that the testimony of the Government's expert wit-
    ness concerning small, unconfirmable traces of cocaine that were
    found on various drug-related items seized from Hester's girlfriend's
    apartment was inadmissible because this information was not dis-
    closed in the witness's summary or report, pursuant to Federal Rule
    of Criminal Procedure 16(a)(1)(E). We review the district court's rul-
    ing on the admissibility of expert testimony for an abuse of discretion.
    See Cavallo v. Star Enterprise, 
    100 F.3d 1150
    , 1153-54 (4th Cir.
    1996).
    At trial, an expert witness for the Government was asked on cross-
    examination by Hester's counsel whether he had found any traces of
    cocaine on a razor blade.11 The expert answered that he actually had
    found small, unconfirmable traces of cocaine on a few of the exhibits.
    Hester's attorney quickly moved on to other areas of interrogation.
    On redirect, the Government inquired into this subject concerning the
    small traces of cocaine. The expert witness explained that he had
    found small traces of cocaine on various drug-related items, but that
    in no case were the amounts large enough to confirm. This informa-
    tion was all contained in his notes, which he had provided to the
    defense before trial.
    Rule 16(a)(1)(E) requires the Government to provide at the defen-
    dant's request a written summary of the testimony that its expert wit-
    nesses intend to present during the Government's case-in-chief. See
    Fed. R. Crim. P. 16(a)(1)(E). In this instance, the information con-
    cerning small amounts of cocaine was included in the expert's notes,
    _________________________________________________________________
    11 The expert's report indicated that he had found traces of heroin on
    the razor blade and the expert testified to this fact immediately before
    Hester's defense attorney asked about traces of cocaine.
    16
    but not in his summary or report as something about which he
    intended to testify.
    We hold that the district court did not abuse its discretion in allow-
    ing this expert's testimony. The expert did not include his finding of
    small traces of cocaine in his summary or report because, as he testi-
    fied, they were too small for him to confirm and the Government did
    not intend to introduce this evidence. When asked point blank on
    cross-examination whether he had found any traces of cocaine, the
    expert correctly testified that he had in fact found some small traces
    as reflected in his notes. Hester cannot now complain about truthful
    testimony that his own questioning directly elicited. Nor can he claim
    he was surprised by this information when he was undisputably pro-
    vided a copy of the expert's notes prior to trial.
    VIII.
    Hester also argues that the Government asked an impermissibly
    leading question of Steven Brown that resulted in Hester's conviction.12
    We review the district court's rulings on leading questions for a "clear
    abuse of discretion," and such rulings will not be overturned absent
    "prejudice or clear injustice to the defendant." United States v.
    Durham, 
    319 F.2d 590
    , 592 (4th Cir. 1963).
    We find no such prejudice here. While testifying to the events sur-
    rounding George's arrest in Washington, D.C., Brown twice indicated
    that George had told him that George was going to New York to pur-
    chase drugs on Hester's behalf. Following this testimony, the prose-
    cution asked Brown whether anyone else was "getting any drugs out
    of this trip [to New York]" and Brown answered "No." (J.A. at 284-
    85.) The prosecution then followed up by asking,"Was Steve Hester
    involved in this transaction?" (J.A. at 285.) Brown responded: "I
    didn't really know if [George was] getting some for Steve Hester.
    [George] told me that he was going for Steve Hester, but I don't know
    if it was for him or not." (J.A. at 285.) The Government's question
    _________________________________________________________________
    12 Federal Rule of Evidence 611(c) expresses a preference against the
    use of leading questions on direct examination: "Leading questions
    should not be used on the direct examination of a witness except as may
    be necessary to develop the witness' testimony." Fed. R. Evid. 611(c).
    17
    was thus intended to clarify Brown's earlier testimony in which he
    testified that George went to New York for Hester. Because "no new
    information was elicited by the question and [Brown's] answer was
    merely repetitive" of his prior testimony, we hold that the district
    court did not abuse its discretion in allowing the Government to ask
    Brown if Hester was involved in the transaction. See Durham, 
    319 F.2d at 593
    .
    IX.
    We turn now to George's argument that there was insufficient evi-
    dence to support his conviction for using a juvenile to assist in avoid-
    ing detection for a drug offense, under 
    21 U.S.C.A. § 861
    (a)(2) (West
    1999). When reviewing a sufficiency-of-the-evidence challenge on
    direct appeal, we must sustain the verdict "if there is substantial evi-
    dence, taking the view most favorable to the Government," Glasser
    v. United States, 
    315 U.S. 60
    , 80 (1942), including all reasonable
    inferences that can be drawn, see United States v. Russell, 
    971 F.2d 1098
    , 1109 (4th Cir. 1992), to support the conviction.
    Section 861(a)(2) provides in relevant part: "It shall be unlawful for
    any person at least eighteen years of age to knowingly and intention-
    ally . . . employ, hire, use, persuade, induce, entice, or coerce, a per-
    son under eighteen years of age to assist in avoiding detection or
    apprehension [for a drug offense]." 
    21 U.S.C.A. § 861
    (a)(2). George's
    conviction under this statute was founded upon the events surround-
    ing his Washington, D.C. arrest on April 14, 1993. On that day,
    George and a travel companion, April Davis, were arrested after arriv-
    ing in Washington by bus from New York. The two were arrested
    because police found a quantity of cocaine base in a diaper bag that
    Davis was carrying. Davis also had her seven-month-old daughter
    with her. George was convicted for his role in this incident and on
    appeal does not contest the sufficiency of the evidence for his convic-
    tion for the underlying substantive drug offense; instead, he argues
    only that there was insufficient evidence to support a finding that
    Davis's infant was used "to assist in avoiding detection."
    We conclude that there was substantial evidence to support
    George's conviction under this statute. Although there was no direct
    evidence that the infant was used to avert suspicion, the jury reason-
    18
    ably could have drawn the inference that the infant's presence was
    intended to help avoid detection. The drugs were hidden in a diaper
    bag -- a bag that would look conspicuously out of place without an
    accompanying baby. The infant's presence clearly appears to have
    been intended to throw law enforcement officials off the couriers'
    trail. Furthermore, evidence presented at trial indicated that drug deal-
    ers were known to use women with children in transporting drugs and
    that the participants in the Hester organization had employed such
    practices before. Given all of this evidence, we hold that the Govern-
    ment's evidence sufficiently supported George's conviction under
    § 861(a)(2).
    X.
    Finally, Bullock argues that he should not have been sentenced to
    life imprisonment under 
    21 U.S.C.A. § 841
    (b)(1)(A) (West 1999) for
    having two prior felony convictions for drug offenses because he did
    not receive the benefit of counsel for one of those drug convictions.
    We reject Bullock's argument because we agree with the district
    court's conclusion, which we review for clear error, see United States
    v. Daughtrey, 
    874 F.2d 213
    , 217 (4th Cir. 1989), that Bullock waived
    his right to counsel in the proceeding that resulted in the conviction
    he now disputes. Moreover, we note that Bullock would have
    received a life sentence even if he had not been sentenced under the
    § 841(b)(1)(A) provision because his base offense level was 44.
    XI.
    Having carefully considered Appellants' arguments, we reject each
    of them and affirm their convictions and sentences.
    AFFIRMED
    19
    

Document Info

Docket Number: 95-5983

Filed Date: 1/27/2000

Precedential Status: Non-Precedential

Modified Date: 10/30/2014

Authorities (18)

United States v. James Edward Colkley, United States of ... , 899 F.2d 297 ( 1990 )

United States v. Russell E. Spitler, United States of ... , 800 F.2d 1267 ( 1986 )

United States v. Michael Hines, United States of America v. ... , 943 F.2d 348 ( 1991 )

United States v. Relious Essix Glasco , 917 F.2d 797 ( 1990 )

United States v. Turner Lee Durham , 319 F.2d 590 ( 1963 )

United States v. Kenneth Wayne Daughtrey, A/K/A Kenneth ... , 874 F.2d 213 ( 1989 )

United States v. Robert Peter Russell , 971 F.2d 1098 ( 1992 )

united-states-v-charles-frances-west-jr-united-states-of-america-v , 877 F.2d 281 ( 1989 )

United States v. Thomas E. Muldoon, United States of ... , 931 F.2d 282 ( 1991 )

United States v. Willie James Richardson, A/K/A Riz, A/K/A ... , 195 F.3d 192 ( 1999 )

United States v. Curtis Dale Smith , 31 F.3d 1294 ( 1994 )

united-states-v-wayne-porter-united-states-of-america-v-earl-dean-jolly , 821 F.2d 968 ( 1987 )

ardith-cavallo-and-lawrence-cavallo-v-star-enterprise-texaco-refining-and , 100 F.3d 1150 ( 1996 )

united-states-v-richard-tipton-aka-whittey-two-cases-united-states , 90 F.3d 861 ( 1996 )

Bell v. State , 48 Md. App. 669 ( 1981 )

Glasser v. United States , 62 S. Ct. 457 ( 1942 )

Franks v. Delaware , 98 S. Ct. 2674 ( 1978 )

Zafiro v. United States , 113 S. Ct. 933 ( 1993 )

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