Case Information
*2 Before MURNAGHAN and WILLIAMS, Circuit Judges, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation. _________________________________________________________________ Affirmed by published opinion. Senior Judge Harvey wrote the opin- ion, in which Judge Murnaghan and Judge Williams joined. _________________________________________________________________ COUNSEL
ARGUED: Michelle Marie Memena Price, KING, ALLEN & GUTHRIE, Charleston, West Virginia, for Appellants. Philip Judson Combs, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Michael R. Cline, MICHAEL R. CLINE LAW OFFICES, Charleston, West Virginia, for Appellant Dorlouis; Christopher J. Heavens, HEAVENS LAW OFFICES, Charleston, West Virginia, for Appellant Charles; Douglas Miller, Sr., Institute, West Virginia, for Appellant Paul; Andrew A. Raptis, Charleston, *3 West Virginia, for Appellant Schultz. Rebecca A. Betts, United States Attorney, Miller B. Bushong, Assistant United States Attorney, Charleston, West Virginia, for Appellee. _________________________________________________________________ OPINION
HARVEY, Senior District Judge:
The five appellants bringing this appeal were convicted by a jury of conspiring to distribute crack cocaine and of related offenses. They here challenge their convictions on numerous grounds. Additionally, appellant Najac Paul appeals the sentence he received. Because we conclude that all five appellants were properly arrested, charged and convicted and that their other assignments of error are without merit, we affirm their convictions. We also affirm the sentence received by appellant Najac Paul. I
In mid-July of 1995, Yvonne Renee Moore met appellant Sallie Schultz while Moore was working as a prostitute for Annie's Escort Service in Charleston, West Virginia. Moore told Schultz that she wanted to make some extra money. Schultz then arranged for Moore to meet appellants Philippe Dorlouis and Najac Paul who came to Moore's apartment in a housing project in mid-August of 1995. Dor- louis and Najac Paul gave Moore a half ounce of crack cocaine to sell. Moore was to sell twenty-one "rocks" for $40 and was to repay $700 to these appellants, retaining $140 for herself. An admitted crack addict, Moore smoked some of the cocaine and lost the rest. Fearing that Dorlouis and Najac Paul would injure her if she did not pay what she owed them, Moore on August 28, 1995 contacted Charleston police officer William Hart, a member of the city's Metropolitan Drug Enforcement Network Team ("MDENT"). Moore agreed to work for this law enforcement agency as a confidential informant.
Moore was given $700 in marked money to pay her debt. After Moore had telephoned them, appellants Jacques Paul and Marc Charles and also appellant Schultz met with Moore at her apartment *4 on the afternoon of August 29, 1995. Her telephone calls were moni- tored and recorded by MDENT officers. Moore paid Jacques Paul and Charles the $700 she owed for the crack given to her the prior week. Charles then gave Moore an additional bag containing 2.89 grams of crack and told her that she could pay him $275 later. Moore told Charles and Jacques Paul that she had a buyer for one ounce of crack. Charles informed her that this would cost approximately $1,550. After her meeting with these three appellants, Moore met with offi- cers of MDENT and gave them the 2.89 grams of crack which she had received from Charles.
Later that same day, Moore returned to the MDENT office and cal- led the pager number given to her. Charles returned her call around 9:00 p.m. and told her that the ounce of crack was available for $1,550. The officers fitted Moore with a body wire and provided her with $1,600 in marked money. At approximately 11:20 p.m., a sur- veillance team observed a 1992 Nissan Pathfinder, occupied by four black males, arrive at the housing project where Moore lived. Two of the individuals remained in the vehicle and two walked into the hous- ing project. In her apartment, Moore met with Najac Paul and Dor- louis, who sold her 25.6 grams of crack for $1,600. Najac Paul and Dorlouis then left Moore's apartment with the money and got into the Pathfinder. Moore left her apartment, met with Officer Hart and gave him the 25.6 grams of crack which had been sold to her.
Shortly thereafter, the Nissan Pathfinder was stopped by officers on the Patrick Street Bridge in Charleston. At the time of the stop, Dor- louis was driving and Jacques Paul, Najac Paul and Charles were in the vehicle. These four appellants were arrested and searched, as was the vehicle. Jacques Paul was found to have in his pants pocket a bag- gie containing 6.46 grams of crack. He was later asked to remove his clothes, and $1,600 in marked money fell from his boxer shorts as he was undressing. In the vehicle's console, the officers recovered $985. Five Hundred Dollars of this sum was identified as being a part of the $700 in recorded money which Moore had given to Jacques Paul and Charles as a part of the earlier deal. A superseding five-count indictment was later returned by a federal grand jury. Count One charged all five appellants with a conspiracy to distribute and possess with intent to distribute cocaine base, also *5 known as "crack," during the period from July of 1995 until August 29, 1995. Count Two charged Dorlouis, Najac Paul and Schultz with aiding and abetting in the distribution of a quantity of crack, this being the one-half ounce of crack initially fronted to Moore in mid- August of 1995. Count Three charged Jacques Paul, Charles and Schultz with aiding and abetting in the distribution of a quantity of crack, this being the 2.89 grams of crack given to Moore in the after- noon of August 29, 1995. Count Four charged Dorlouis, Jacques Paul, Charles and Najac Paul with aiding and abetting in the distribution of a quantity of crack, this being the 25.6 grams of crack sold to Moore during the night of August 29, 1995 for $1,600. Count Five charged Jacques Paul with possession of crack with intent to distribute, this being the 6.46 grams of crack which were found in his pocket at the time of his arrest a few minutes after midnight on August 30, 1995. Numerous pretrial motions were filed by the appellants and were denied by the district judge. In particular, motions to suppress evi- dence seized from the Pathfinder and from Jacques Paul on August 30, 1995 were denied, as was the motion of Jacques Paul to dismiss the superseding indictment on the ground that the Speedy Trial Act had been violated. The trial was originally set for November 20, 1995, but when Moore could not be located shortly before that date, the trial was rescheduled for December 18, 1995. Following a four day trial, the jury returned with verdicts of guilty as to each defendant on each of the counts in which he or she was charged. Defendants then filed a motion for a new trial, contending that Moore had committed per- jury during her trial testimony. Following an evidentiary hearing, that motion was denied by the district judge.
A sentencing hearing was later held, at which the court heard testi- mony relating to relevant conduct of each of the appellants and the quantity of drugs to be assessed against each. All five appellants received lengthy sentences. Dorlouis was sentenced to a term of 121 months imprisonment, and Charles received 120 months. Jacques Paul was sentenced to 97 months imprisonment, and Najac Paul was sentenced to 168 months imprisonment. Schultz received a sentence of 78 months. Substantial terms of supervised release were added to the prison terms imposed by the district judge.
Appellants have timely filed these appeals.
II
All five appellants first argue that their right to due process of law
was violated when the superseding indictment failed to indicate the
specific quantity of crack involved in the various offenses. Counts
Two, Three, Four and Five all charged a violation of 21 U.S.C.
§ 841(a)(1). Following convictions of appellants under those Counts,
the sentences which might be imposed were subject to enhancement
pursuant to 21 U.S.C. § 841(b).
Counts Two, Three, Four and Five each charged offenses involving
the distribution of "a quantity of cocaine base, also known as `crack'."
None of the Counts thus alleged the specific amounts of crack distrib-
uted by appellants. According to appellants, since the superseding
indictment failed to specifically allege the amount of crack involved,
their right to due process of law was violated because the indictment
failed to notify them that they would be subject to enhanced penalties
under § 841(b) if convicted. Whether an indictment must allege the
amount of crack involved is an issue of law which we review de novo.
United States v. Han ,
The original indictment was returned by the grand jury on Septem- ber 19, 1995. When appellants were later arraigned, the trial was ini- tially scheduled to commence on November 20, 1995. On October 20, 1995, appellant Dorlouis filed various pretrial motions. Thereafter, other appellants filed similar motions. An initial hearing on pretrial motions was held on November 1, 1995, and a second evidentiary hearing on the motions was held on November 13, 1995.
Thereafter, because the government's key witness Moore could not be located, the government moved for a continuance of the November 20, 1995 trial date. That motion was opposed by appellants. Follow- ing a hearing, the district court granted the government's motion, and the trial was eventually scheduled for December 18, 1995. After a four day trial, the jury on December 22, 1995 returned verdicts of guilty as to each appellant on each of the counts in which he or she was charged.
Appellants' motion to dismiss the indictment because of a violation
of the Speedy Trial Act, 18 U.S.C. § 3161, et seq., was denied by the
court prior to the trial. Appellants now argue that the Speedy Trial
Act was violated because the trial was held more than seventy days
after the original indictment was returned. See 18 U.S.C. § 3161(h).
The question presented is whether the time between the filing by
*8
appellants of their pretrial motions and the district court's decision on
the motions should be excluded from the computation of the seventy
day period. We review the district court's decisions regarding the
computation of time for abuse of discretion, United States v. Tinson,
18 U.S.C. § 3161(h)(1)(F) provides as follows:
The following periods of delay shall be excluded . .. in computing the time within which the trial of any such offense must commence: * * *
(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion . . . .
In denying appellants' motion to dismiss on Speedy Trial Act grounds, the district court ordered that the period of delay from Octo- ber 20, 1995 through November 28, 1995 was, pursuant to the Act, excludable in computing the time within which the trial should com- mence. We agree that this period of time was properly excludable under § 3161(h)(1)(F). The first pretrial motion, a motion to suppress, was filed by appellant Dorlouis on October 20, 1995. Other motions to suppress as well as additional pretrial motions were later filed by other appellants. The motions to suppress were eventually denied by the district court's Order of November 28, 1995. We agree that the period of time between the filing of the first pretrial motion and the court's final ruling on appellants' pretrial motions was properly excludable under the Speedy Trial Act.
Appellants argue that there was no delay "resulting from" any of
the pretrial motions. According to appellants, § 3161(h)(1)(F) does
not provide for a blanket exclusion of the time during which motions
are pending. Appellants contend that the trial in this case could have
been held on November 20, 1995, the original scheduled date, even
*9
though motions had theretofore been filed and even though there were
extensive proceedings before the court ruled on the motions.
We conclude that the filing of a pretrial motion creates excludable
time whether or not it can be shown that proceedings relating to such
a motion in fact delayed the trial. We construe§ 3161(h)(1)(F) as pro-
viding that delay always results after the filing of a pretrial motion
and that all time is excluded between such filing and the court's
prompt disposition of such motion. Subsection (F) does not require
that there be a determination that the period of delay in question be
reasonable before it may be excluded. Henderson v. United States,
IV
Following his conviction, appellant Dorlouis filed a motion for a new trial in which other appellants joined. An evidentiary hearing on this motion was held by the district court. In an Order dated March 15, 1996, the district judge denied the motion for a new trial. Appel- lants here claim that their motion for a new trial should have been granted.
Appellants' motion for a new trial was based on the contention that the witness Moore committed perjury in testifying at the trial. Moore had a romantic relationship with one Benjamin Johnson, who was an inmate at the South Central Regional Jail in Charleston, where appel- lants were also incarcerated. After the trial, Moore wrote two letters to Johnson. In the first letter, she stated that she had been "popped" (or arrested) and that her cooperation resulted from this arrest. In the second letter, she indicated that she had been compelled to cooperate with law enforcement officials in order to avoid being arrested. These statements contradict the trial testimony of both Moore and law enforcement officers, all of whom testified that Moore initiated the contact with Officer Hart when she was unable to pay for crack sup- plied by appellants. It is urged by appellants that they are entitled to a new trial because Moore committed perjury at the trial. At the evidentiary hearing held on appellants' motion for a new trial, Moore testified that the statements in her letters to Johnson were untrue and were made in order to further her efforts to maintain a romantic relationship with him. She testified that she was aware that Johnson was incarcerated in the same jail with four of the defendants and that she did not want her relationship with Johnson to be strained because she had "snitched" on the appellants. According to Moore, she had made up the story in her letters to make it appear that she was in some manner compelled to be a confidential informant in the course of implicating the appellants.
We review the district court's denial of appellants' motion for a
new trial for abuse of discretion. United States v. Arrington, 757 F.2d
*11
1484, 1486 (4th Cir. 1985); United States v. Nelson,
Among the pretrial motions filed by appellants was a motion to
suppress evidence recovered from the Nissan Pathfinder and from the
person of Jacques Paul when the vehicle was stopped and its occu-
pants arrested shortly after midnight on August 30, 1995. Appellants
Dorlouis and Jacques Paul contend that the district court erred in
declining to suppress the money found in the Pathfinder's console and
the money and drugs found on the person of Jacques Paul. The district
court held several hearings on appellants' motions to suppress evi-
dence. In its Order of November 28, 1995, the Court concluded that
probable cause existed for the arrest of the four male defendants in
the Pathfinder and that the search of the defendants and the vehicle
was in all respects reasonable as incident to the arrest of these four
individuals. The motions to suppress were accordingly denied. We
conclude on the record here that no error was committed by the dis-
trict court in so ruling.
It has long been established that probable cause exists where the
facts and circumstances are sufficient to warrant a person of reason-
able caution to believe that a crime has been committed and that seiz-
able property can be found at the place to be searched. Carroll v.
United States,
Later, Moore was given $1,600 by the officers to carry out another transaction that same evening. At about 11:20 p.m. on August 29, 1995, four black males were observed in the Pathfinder at the housing project. Two of them left the vehicle, entered Moore's apartment and later returned to the Pathfinder. Immediately thereafter, Moore met with Officer Hart, identified the individuals with whom she had just met and delivered to Hart the crack cocaine she had bought from them. Moore was wearing body tapes during both the earlier and the later transaction. The tapes of those transactions were not sufficiently audible to be useful in determining what occurred. However, Officer Hart had listened on his police radio to conversations between Moore and the participants in the second transaction. Tapes of telephone calls made by Moore concerning the drug transactions were audible and intelligible. There was surveillance of both transactions by law enforcement officers.
After meeting with Moore some two minutes after the second transaction took place, Officer Hart alerted other officers and instructed them to follow the Pathfinder and arrest its occupants. The stop and arrest occurred only a short distance from the housing proj- ect where Moore had met with them and had received the one ounce of crack cocaine. Five or six police vehicles stopped the Pathfinder on the Patrick Street Bridge and approached the vehicle which was occupied by appellants Dorlouis, Charles, Jacques Paul, and Najac *13 Paul. All four occupants were ordered out and placed under arrest. The vehicle was then searched and $958 was found in the front seat console. A plastic bag containing 6.46 grams of crack cocaine was found in the front pocket of Jacques Paul.
We conclude that the arresting officers had ample probable cause
to arrest all four of the occupants of the Pathfinder in the early morn-
ing hours of August 30, 1995. Once the arrest was made, the officers
were entitled, as incident to such arrest, to search the console of the
Pathfinder and to search the person of Jacques Paul. Taylor, 857 F.2d
at 214. There is no merit to appellants' argument that West Virginia
law is applicable and does not allow a warrantless arrest for a felony
not committed in the presence of the officers. We rejected that very
same contention in United States v. Sims,
Under these circumstances, we conclude that the search in question was not an unconstitutional strip search. The search did not occur on *14 the street subject to public viewing but took place in the privacy of the police van. Since the police officers acted reasonably in attempt- ing to locate the missing money, the contention by Jacques Paul that he was subjected to an unconstitutional strip search must fail.
VI
Jacques Paul further argues that there was insufficient evidence to
support his conviction on Count Five. Similarly, appellant Schultz
contends that the evidence presented at the trial was not sufficient to
support her convictions on Counts One, Two and Three.
In our review of the record here, we must draw all reasonable infer-
ences in the light most favorable to the government. Glasser v. United
States,
VII
Appellants' other claims of error are similarly without merit. Appellant Najac Paul asserts that the Sentencing Reform Act of 1984 and the Guidelines promulgated thereunder constitute a Bill of Attain- der in violation of Article 1, Section 9 of the Constitution, since they permit an increase in punishment because of relevant conduct. Najac Paul also objects to the testimony of Rhonda Cunningham at the sen- tencing hearing, claiming that such testimony unfairly resulted in an increase in the punishment received by him because it constituted evi- dence of crimes for which he was neither charged nor convicted.
A Bill of Attainder is a legislative determination of guilt which
metes out punishment to named individuals. United States v. Lovett,
*15
Appellant Schultz argues that the district court erred in denying her
motion for a severance, in denying her motion for acquittal and in
denying her motion for a mistrial. We have previously concluded that
the evidence was sufficient to support the conviction of appellant
Schultz on all counts. Severance is a matter committed to the sound
discretion of the district court. United States v. Tedder, 801 F.2d
1437, 1450 (4th Cir. 1986), cert. denied ,
For all the reasons set forth herein, we affirm the convictions of appellants Dorlouis, Jacques Paul, Charles, Najac Paul and Schultz. We further affirm the sentence imposed on appellant Najac Paul. AFFIRMED.