United States v. Benjamin Shabazz Peay, United States of America v. James Robert Ford, 972 F.2d 71

United States v. Benjamin Shabazz Peay, United States of America v. James Robert Ford

972 F.2d 71

4th Cir.

1992

Check Treatment

*2 case, and the court recessed for lunch. LUTTIG, Before WIDENER and Circuit reconvened, When the prosecu- BUTZNER, Judges, and Senior Circuit tor moved to reopen government’s case Judge. by calling Seagers. prosecutor ex- plained during the luncheon recess OPINION Seagers said he testify wanted to BUTZNER, Judge: Senior Circuit conversations he they had with Peay while were both in the jail. prose- Guilford jury Benjamin convicted Shabazz cutor vouched that the testimony was rele- of conspiracy cocaine, posses- distribute vant to the merits of the The court case. cocaine, sion with intent to pos- distribute granted government’s motion. heroin, session intent to distribute use of a firеarm and in relation to requested counsel then leave offense, trafficking engaging in Rainer, call Terrell inmate another continuing enterprise, criminal laundering who, informed, jail, Guilford counsel was drug currency, engaging testify transac- could rebut that Sea- tions involving money gers derived from the coming anger back to vent his sale of drugs. against Peay. The court denied leave to supplemented proffered chief. The evidence call Ranier. later should be proposed relevant, admissible, proffer of Rainer’s technically ade- follows: quate, helpful in ascer- taining guilt had told me last week that he

Mr. Rainer or innocence of the ac- *3 Seagers Seagers Mr. had talked to receipt cused. The belated of such testi- that, him subpoenaed had him once told mony should not “imbue the evidence court, going to [Seager] to he was double importance, with distorted prejudice the help to himself as far cross me order opposing party’s preclude or an ad- the as his assistance to substantial versary having adequate oppor- But I told him Government. [Rainer] tunity to meet the additional evidence [Seagers] that the time I didn’t think he offered.” subpoena him and then ask me to Bayer, See United States v. tell a lie. 532, 537-39, 1394, 1396-98, Seagers judge saying to the A note wrote (1947); L.Ed. 1654 United States v. Walk- Peay testify he to corroborates wanted er, (5th Cir.1985). Peay’s Seagеrs that wanted to be assertion reopen The to subpoenaed. timely. motion was The government presented a expla- reasonable Seagers that had told him testified presenting nation for not the evidence earli- going to York for a trans- about New er, Seagers approach prose- did not the Seagеrs also testified that action. cutor until after the close of the evidence. drug selling operation in said he had a testimony The helpful was relevant and and his runners were Winston-Salem jury. $10,000 selling approximately worth of drugs each week. Seagers’ testimony after the denied then took stand and reopened undoubtedly strength- its casе having Seagers the conversations that had prosecution. ened the Prior to the admis- request in re- related. His to call Ranier Seagers’ testimony govern- sion denied, having pro- the trial

buttal largely ment’s case chief rested attorneys’ arguments ceeded with coconspirators testimony of indicted jury. pled guilty awaiting had and were who coconspirators unindicted who sentence or II government. Peay cooperated with the reopening “The of a criminal ease after taken the stand in his own defense and had evidence is the discre- close of within any drugs. denied involvement with judge.” tion of the trial States guilt, admission of Paz, 927 F.2d We Seagers’ testimony, subjеct of contradicted the district court’s deci- therefore review Peay’s defense and corroborated reopen of discre- sion to the case for abuse Moreover, Sea- government’s witnesses. Paz, tion. 927 F.2d at 179. See also Unit- Peay’s admission of gers’ testimony about Carter, (4th ed States guilt presented jury at a most Cir.1977). reoрening Criteria for a case time, attorneys’ shortly critical before explained in have been summations. (5th Cir.1982) Thetford, 676 F.2d Peay’s request impeach Sea- Denial of Larson, (quoting States v. preju- by calling Ranier as a witness Cir.1979)), gers as follows: danger by a wit- Peay. The caused diced discretion, exercising its the court curry ness who seeks to fаvor with must the timeliness of the mo- consider pur- present. Ranier’s government is ever testimony, character of the Seagers planned to testimony ported that granting of the motion. the effect beyond the realm Peay is not double cross pro- party moving to should The fact, appears to be possibility; in explanation fоr failure vide a reasonable happened. in its case-in- the evidence what deposit federally Peay’s request denied be- used funds on trial court Therefore, purchase some real es- it is of insured banks Seagers testified. fore by the only proof offered not tate. counsel did no moment government to show an effеct on interstate cross-examination question were insured commerce was that the banks allegedly he made to the statement Deposit Corpora- Insurance the Federal lay had no reason to Ranier. Counsel (FDIC). The court instructed the impeachment af- foundation for proof of this insurance allowed them grаnt Peay not ter the court ruled would to infer the existence of an effect on inter- give who would to call the witness leave argues Moreover, state commerce. testimony. the lack of such is insufficient to show not have evidence such cross-examination would barred *4 and that the court’s instruction was effect subsequent admission of Ranier’s testimo- erroneous. ny. requirement The familiar foundation nor Neither impeaching statement ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍first that an be precisely point. on has cited case Never shown to the witness before can be theless, precedent sup we conclude that by preserved evidence is

proved extrinsic ports the district court’s conclusions. A The tradi- some modifications. but with statutory requirement activity that an “af tional insistence that attention by fect commerce” indicates a desire Con on directed to statement witness be gress power by to exercise all conferred relaxed in favor of cross-examination is the Commerce Clausе. See Russell v. opportu- an simply providing the witness States, 858, 859, 471 U.S. 105 S.Ct. United opposite party nity explain and the an 2455, 2456, (1985)(using 85 L.Ed.2d 829 an statement, on the opportunity to examine explosive maliciously damage device to any particular of specification with no destroy property activity in an affect used sequence. time or commerce); ing Scarborough interstate v. States, 563, 571-72, 431 U.S. 613(b) advisory committee’s Fed.R.Evid. 1963, 1967-68, (1977) 52 L.Ed.2d 582 S.Ct. omitted); (citation see also 3 Wein note firearm); (possession of a National Labor ¶ Berger, 613[02], at stein and Evidence Relations Board v. Reliance Fuel Oil (1991). 613-11 224, 226, 312, Corp., 371 U.S. 313- properly important criterion for re An (1963) (National 9 L.Ed.2d Labor taking reopen сare that opening a case is Act); Lomax, Relations v. United States “preclude adversary an from ing does not Cir.1979) (fraudu (10th adequate opportunity to meet having an transportation stolen credit lent use and of offered.” evidence Thet additional card). degree” phrase any way “in or reopen F.2d at 182. The court’s ford, 676 Congress signifies intends to ex government’s case while at the ing of the authority. ercise its broadest See Stirone opportunity an denying same time 212, 215, v. with Ranier’s impeach 270, 272, (1960)(Hobbs 4 L.Ed.2d 252 S.Ct. assignment of error. The sustains that, Act). enacting We therefore hold and the case judgment must be vacated 1956, Congress to exercise the intended § for retrial. remanded legislative power by conferred the com full Only merce clause. a de minimis Ill on interstate commerce must shown for be application pass of such a statute set aside con- Although we have muster. v. constitutional United States viction, briefly issues that discuss we will Spagnolo, 546 F.2d Cir. retrial. The again will arise indictment 1976). money laundering in charged Peay with Voss, 1956. Proof of United States violation of 18 U.S.C. § relies, (8th Cir.1986), on which commerce is es- 397 some effect on interstate alleged of 18 U.S.C. violation sential to a violation. involved show such and office he conducted trans- destruc- where 844(i), forbids malicious § jury specified com- that he was affects interstate actions. рroperty guilty only respect found to three Foss loaded merce. The bedroom, if not met requirement guns including found his de minimis property had on interstate only effect the testified that Uzi. witness being insured from its stemmed commerce the Uzi in the room where he saw in anoth- by that also did business a carrier cutting cocaine.

er state. Brockington, United States institu- of an FDIC-insured The activities (4th Cir.1988),explains that a fire- however, commerce interstate affect 924(c)(1)“if arm is used in violation of § by private property insured more than protection the firearm is court, the noted the district carrier. As success, whether facilitate the likelihood federally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is government insurance аdminis- actually not it is used.” or Measured tered, periodically officials examine federal sufficient, this standard the evidence was accounts, reports sent assignment on this of error depos- has money that FDIC deal with lacks issue merit. sources, including those many ited Peay’s complaint about en- The basis of *5 the state. outside likely his sentence is not hancement of States, U.S. 274 v. United Westfall reoccur on retrial. (1927), 629, the 256, L.Ed. 1036 47 71 S.Ct. has confessed error The in a that a transaction Court observed sufficiency evi- respect the of the with Sys- Reserve of the Federal member bank 7, support conviction on count dence to a true, This is the system. the tem affects of 18 chаrged a violation U.S.C. said, causes if the transaction Court even the district court 1957. On remand § 258-59, System. 274 U.S. no loss to the judgment acquittal a of should enter principled There is no 629-30. 47 S.Ct. at this count. do not also why these observations reason FDIC, sustaining proposi- the apply to the Ford Robert James in insured bank transaction tion that a Congress the FDIC. сreated affects the IV trade “keep open the channels of FDIC to Ford, coconspirators of one exchange.” v. Unit- commercial Weir the asserts that separately, who was tried 634, States, F.2d 636 ed 92 allowing the introduc trial court erred therefore, that a transaction apparent, It is weapons seized from of tion into evidence FDIC affects interstate affects the Ford, relying on Federal Peay’s residence. commerce. 402, 403, 401, con Evidence Rules of to reach all Congress intended Because charged as he was not tends inasmuch legislative power when its cases within drug to a using gun a in relation 1956, and because transactiоns enacted § weap transaction, of the introduction the involving financial institutions insured seizure their the ons and commerce, we affect interstate the FDIC unduly preju irrelevant and instruc- in the district court’s find no error him. diced it could infer tions a lookout Ford Witnesses described by the commerce on interstate organiza- drug of the Peay and as one for institutions. as FDIC-insured status banks’ him placed Evidence tion’s lieutenants. evi contends that Peay also where residence frequently at his convic to sustain dence is insufficient Peay conducted and where guns kept were during and in firearm of a use drug transactions. trafficking offense relation a court, weapons, the аdmitting the Before 924(c)(1). Federal of 18 U.S.C. violation § organiza- of the size noting large weapons while number of agents found and evidence bodyguards, use of Peay’s house executing warrants of search 76 assurance, pondering hap violence, prejudice that the after all

of determined outweigh probative stripping Ford did nоt pened without the erroneous ac We review eviden- value of the evidence. whole, judgment tion from the that the ” of by a trial court for abuse tiary decisions substantially swayed by not the error.’ Zandi, 769 discretion. United States Urbanik, 692, States v. United Cir.1985). 229, F.2d 237 (4th Cir.1986) (quoting 698 Kotteakos v. Llano, Crespo 750, 765, de 838 66 S.Ct. United (9th Cir.1987), 1006, F.2d like 1239, 1248, (1946)). 90 L.Ed. 1557 It must “ admissibility weapons involved ‘highly probable that еrror did be not ” coconspirator’s house. seized from judgment.’ (quoting Id. at 699 affect court’s found no error the trial Nyman, States v. weapons into admission of these (4th Cir.1980), quoting Traynor, in turn linking noting existed that evidence (1970)); Riddle Harmless Error 34-35 from which the defendant to the house Vogt, accord United States v. weapons were seized. See — (4th Cir.1990), denied, cеrt. (3d Zarintash, 736 F.2d States v. U.S. -, 112 L.Ed.2d 1043 Cir.1984); Mourad, United States (1991). Similarly, in United States v. Cir.1984). (2d F.2d (4th Cir.1981), 657 F.2d 637 we ex error in the We find no admission plained that test for harmlessness “[t]he judgment convict- evidence and affirm for nonconstitutional error is it is whether ing Ford. probable that the error ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍could have affected 1-6, 91-5045—Counts VA- —No. particular jury the verdict reached CATED; REVERSED; REMAND- Count particular in the circumstances of the tri ED FOR FURTHER PROCEEDINGS *6 (citing Nyman al.” Id. at 640 and Kottea THIS CONSISTENT WITH OPINION. kos). Ford —No. 91-5055—AFFIRMED. guide inquiry Three factors into harmlessness, case, the “closeness of the LUTTIG, Judge, concurring in Circuit centrality by of the issue affected part dissenting part: in and error, steps mitigate and the taken to opinion, I in Part IV of the court’s concur of the Nyman, effects error.” 649 F.2d аt conviction, affirming appellant Ford’s and 212; Urbanik, see also 801 F.2d at 699 in Part III to the extent that it reverses the (quoting Nyman)] Gaither v. United judg district court and orders it to enter a (D.C.Cir.1969). acquittal Peay’s ment of on count 7 of single The closeness of the case is “the dissent, however, I indictment. from the factor, important provides most because it opinion in remainder of the court’s which it safeguard against the central reversals for Peay’s vacates conviction on counts 1 Urbanik, purely ‘technical’ error.” through 6 of the indictment and remands Here, by F.2d at 699. the issue affected Though agree trial. that the a new few, allowing govern court erred in the error was central to the district denying Peay ment to its case while any, steps mitigate if were taken to impeach Seagers by opportunity call By of the error. no stretch of the Rainer, ing I would hold that that error however, imagination, con- can this case be was harmless.* one, given sidered a close the overwhelm- view, ing my Peay’s guilt. evidence of In analysis necessarily

Harmless error is “probable it is not at the error all that fact-specific. The standard for harmless- could reached ness error have affected the verdict of nonconstitutional is “whether we, review, appellate say particular can ‘with fair particular in the circum- * event, argue may did not harmless error in we this issue on our own raise See, argument, Pryce, e.g., its however, At submissions to this court. initiative. (D.C.Cir.1991); counsel for the took the F.2d 1343 United States v. Giov annetti, position any any error was harmless. that 928 F.2d 225 paraphernalia. trial.” 657 F.2d at at stances of the Id. 145-67. None of this testimony impeached by Seagers; nor any would of it have impeachеd by including three At least witnesses—not Rainer. that Patterson or —testified sophisticated of a and wide- was the leader upon Based I am convinced drug organization. These witnesses spread that the district court’s error was harmless. Williams, Robert included Cassandra assuming Even testimony Rainer’s Williams, Cathy Torry. Harris Cassan- negated Seagers’ (second) would have testi- dra Williams testified that sometimes mony (first) Seagers’ and that in the paid personally her for her activities negated testimony, Patterson’s there was 68; drug Peay provided ring, J.A. at overwhelming still Peay’s guilt evidence of her with headsets walkie-talkies drug-related offenses activities, 69; at used id. charged. Accordingly, I would affirm she, “lieutеnants,” Peay’s as one of charges conviction on these in all sell, 72; drugs receive id. at from him respects. phone Peay and that she would when she sell, drugs had run out of id. at 81. Williams,

Similarly, Robert another of “lieutenants,” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍testified that 89; cocaine,

gave job selling him a id. at activities, Peay paid him for his id.

92; prepared that he had retrieved and occasions,

cocaine on numerous 95-97; he had seen id. at and that COMPANY, In re A.H. ROBINS preparing cocaine his house surrounded INCORPORATED, Debtor. firearms, sample by various id. at 98. Cathy Torry, yet an- testimony of Harris SHIELD DALKON CLAIMANTS “lieutenants,” typical of other of is TRUST, Plaintiff-Appellee, powerful Peay’s guilt that evidence of jury: was heard REISER, Ralph Individually and on G. Q. [Peay] you After he asked to become *7 Anthony behalf of Kathleen and Galeo lieutenant, you did do? what tafiore, Defendant-Appellant. money gave guys A. held drugs to sell. No. 91-1195. Q. you drugs from Who did receive Appeals, United States Court of you gave out? Fourth Circuit. Peay. A. Ben Q. you Peay? see Mr. How often did Argued March 1992. Every day.

A. Aug. 1992. Decided Q. on one or more occasion Would be Sept. As Amended day? day. three times a

A. Two or

Q. packages you size re- What

ceive on those occasions? package,

A. A thousand-dollars which is bags.

a hundred dime In addition to the

Id. at 102-03. Williams, Robert Williams Cassandra Cathy Torry, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fruit of a search of residence, which was introduced standbys of the

into included the cash, guns, drugs,

drug dealer: