United States v. Edge ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4000
TONY EDGE; MELVIN LEON GORE,
Defendants-Appellants.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-392)
Submitted: May 29, 1998
Decided: July 28, 1998
Before MURNAGHAN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
G. Wells Dickson, Jr., Charleston, South Carolina; Wm. Reynolds
Williams, WILLCOX, MCLEOD, BUYCK, BAKER & WILLIAMS,
Florence, South Carolina, for Appellants. J. Rene Josey, United States
Attorney, Alfred W. Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Tony Edge and Melvin Leon Gore appeal from their convictions
and sentences for possession of 92.5 grams of cocaine base with
intent to distribute. Appellants' attorneys have filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967), claiming that
Edge's sentence of life imprisonment without parole was dispropor-
tionate to his crime, but concluding that there are no meritorious
grounds for appeal. Edge and Gore were informed of their right to file
additional briefs. Edge has filed a supplemental brief, claiming that
the district court erred in denying his motion to suppress and denying
his motion to sever his case from Gore's. In accordance with the
requirements of Anders, we have examined the entire record and find
no meritorious issues for appeal.
Edge's claim, by counsel, is that his sentence--life imprisonment
without parole under 21 U.S.C. § 841(b)(1)(A) (1994)--was so dis-
proportionate to his offense--a third drug felony involving 92.5
grams of cocaine base and 33.7 grams of cocaine powder--that it
constitutes a violation of the Eighth Amendment's Cruel and Unusual
Punishment Clause. We have reviewed this claim under the guidelines
set forth in Solem v. Helm, 463 U.S. 277 (1983), and find that the sen-
tence is not so disproportionate to the offense that it constitutes an
Eighth Amendment violation.
Edge also raises two issues pro se. First, he asserts the officers
stopped his automobile to investigate drug activity, without a reason-
able basis to believe that the occupants were involved in illegal activ-
ity. The temporary detention of a motorist upon probable cause to
believe that he has violated traffic laws does not violate the Fourth
Amendment prohibition against unreasonable seizures, regardless of
the officers' subjective motive behind the stop. See Whren v. United
States, 517 U.S. 806, 813 (1996). The officers asserted that they
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stopped the vehicle Edge was driving, in which Gore was a passenger,
because its registration was suspended. Edge asserts that the officers
did not find out this information until the stop had already been initi-
ated. Under Whren, if the officers possessed the knowledge that the
vehicle's registration was suspended before they stopped the car, the
detention was proper.
While the officers' testimony was conflicting and created a time-
line that did not comport with the documentary evidence, the district
court based its finding on police computer logs. These documents
show that the officers received the information regarding the registra-
tion at 3:31 on the mobile computer in their patrol car. The radio dis-
patch records show that Edge's vehicle was pulled over at 3:32, one
minute after the registration information was received. In light of the
documentary evidence regarding the computer searches, we hold that
the district court's finding as to the officers' knowledge was not
clearly erroneous. See United States v. Rusher , 966 F.2d 868, 873 (4th
Cir. 1992) (standard of review).
Finally, Edge asserts that his motion to sever was improperly
denied. While Rule 14 of the Federal Rules of Criminal Procedure
allows for severance if a defendant will suffer undue prejudice from
joinder, the decision to sever is within the discretion of the trial judge
and will not be reversed absent an abuse of discretion. See United
States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992). Refusal to
sever constitutes an abuse of discretion only when the denial of sever-
ance deprives the defendant of a fair trial and results in a miscarriage
of justice. See United States v. Chorman, 910 F.2d 102, 114 (4th Cir.
1990). The burden is upon Edge to make a particularized showing of
prejudice from the denial of severance. See United States v. Clark,
928 F.2d 639, 645 (4th Cir. 1991). In an attempt to demonstrate this
prejudice, Edge claims that, if his motion to sever had been granted,
he could have called Gore as a witness. Further, argues Edge, if
Gore's testimony was similar to his testimony at his Fed. R. Crim. P.
11 hearing,* Gore's testimony would exculpate Edge.
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*After a partial Rule 11 hearing had been held, Gore decided to plead
not guilty and proceed to trial.
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While Gore's testimony, if believed, would be helpful to Edge,
Edge cannot show that Gore would have testified in his behalf. Gore
did not take the stand at his own trial, and therefore, if the Govern-
ment chose to try Edge first, Gore would likely have refused to testify
under the Fifth Amendment. Further, Gore's testimony, while helpful
to Edge, would not necessarily exculpate him. Gore testified that he
found cocaine in the car and hid it in his pants, as the officers were
stopping Appellants' car. Gore implied that Edge had no knowledge
of the cocaine, but a jury could easily infer that Edge constructively
possessed the cocaine, which, according to Gore, was found under the
passenger seat of the car Edge was driving. In addition, the district
court found Gore's testimony palpably unbelievable, and a jury might
very well have come to the same conclusion, in that Gore's statement
contradicted the statements of several police officers that Edge pos-
sessed the cocaine and threw it to Gore. Having reviewed Gore's Rule
11 testimony, we find that the denial of the opportunity to call Gore
did not result in a miscarriage of justice.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Appellants'
convictions and sentences. We deny Edge's motion to dismiss his
counsel. This court requires that counsel inform their clients, in writ-
ing, of their right to petition the Supreme Court of the United States
for further review. If either client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation.
Counsel's motion must state that a copy thereof was served on the cli-
ent.
We dispense with oral argument, because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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