Case Information
*4 Before RUSSELL and HALL, Circuit Judges, and THORNBURG, United States District Judge for the Western District of North Carolina, sitting by designation. _________________________________________________________________ Affirmed in part and vacated and remanded in part by published opin- ion. Judge Russell wrote the opinion, in which Judge Hall and Judge Thornburg joined. _________________________________________________________________ COUNSEL
ARGUED: John David Ash, Baltimore, Maryland; James Christo- pher Savage, LAW OFFICES OF JAMES SAVAGE, Rockville, Maryland; Arcangelo Michael Timinelli, Baltimore, Maryland; Wil- liam B. Purpura, Baltimore, Maryland; David Richard Solomon, Bal- timore, Maryland; William Scott Little, STARK & LITTLE, Baltimore, Maryland; Colin R. Hueston, EUGENE P. TINARI & ASSOCIATES, Philadelphia, Pennsylvania; Daniel Tisdale, Balti- more, Maryland; Alan Curtis Drew, Upper Marlboro, Maryland, for Appellants. John Vincent Geise, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Eugene Patrick Tinari, Philadelphia, Pennsylvania, for Appellant Eric Brown; C. Michael Walls, Laurel, Maryland, for Appellant Hassan Smith; Gary L. Segal, Rockville, Maryland, for Appellant Michael Smith; Howard L. Cardin, CARDIN & GITOMER, P.A., Baltimore, Mary- land, for Appellant Cynthia Brown; Kenneth Mack Williams, Balti- more, Maryland, for Appellant Walter Smith; Jeffrey C. Hines, Baltimore, Maryland, for Appellant Roderick Brown. Lynne A. Bat- *5 taglia, United States Attorney, Barbara S. Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. _________________________________________________________________ OPINION
RUSSELL, Circuit Judge:
This case is the result of an extensive investigation into the cocaine trafficking activities of Paul Winestock, Jr., Norman Brown, and numerous associates. The investigation included court-ordered elec- tronic surveillance on several cellular telephone lines, numerous undercover drug buys made by police agents, and the searches of approximately 32 locations in Maryland, Virginia, the District of Columbia, and Pennsylvania. The investigation led to the indictment of thirty defendants, fifteen of whom were convicted after four sepa- rate trials and six of whom entered guilty pleas. The main trial of seventeen defendants (referred to by the parties as the "Winestock" trial) began on November 4, 1991. The trial con- tinued for sixty-nine trial days and concluded on March 31, 1992. The jury acquitted all of the defendants on the conspiracy counts. 1 The jury, however, convicted each of the following defendants on at least one substantive count: Paul Winestock, Jr., Norman Brown, Melvin A. Ford, Eric S. Brown, Jeffrey A. Reid, Walter T. Smith, Roderick Brown, Michael D. Short, Carlos E. McGill, Robert A. Williams, and Cynthia E. Brown. Except for Paul Winestock, Jr., 2 all of these defen- dants are parties to this appeal. 3
_________________________________________________________________ 1 Count I of the indictment charges a conspiracy of all of the defen- dants. In Counts II and III, the indictment divided the defendants into two groups and charged a conspiracy of each group. Count II involved the group headed by Norman Brown; Count III involved the group headed by Paul Winestock, Jr.
2 Although Winestock's appeal was originally consolidated with this case, we ordered that his appeal be deconsolidated on June 14, 1996. 3 The jury acquitted the other six defendants: Douglas Allston, Paul Winestock, Sr., Delbert Mobley, Terrance Ross, Alvin Martin, and Eric Allston. *6 The trial against the other two defendants (the"Smith" trial) began on April 7, 1992. At the completion of the trial, the jury convicted Hassan L. Smith and Michael S. Smith on all counts brought against them. 4
The thirteen appellants have raised numerous arguments to their convictions and sentences. We find error only in the sentencing of Jeffrey A. Reid, which we vacate and remand for resentencing. We affirm the convictions and sentences of all of the other appellants. I.
We first turn to the sentencing of Jeffrey A. Reid, the one issue on which we reverse. Reid was convicted on two counts of possession with intent to distribute crack cocaine. The district court attributed to him eight kilograms of crack cocaine and sentenced him at level 40. Reid's presentence report assigned three criminal history points to Reid, thus placing him in criminal history category II. He received one point for a 1987 drug conviction in the District of Columbiа and two points for a 1987 conviction in the same jurisdiction for unautho- rized use of a vehicle. At sentencing, the government presented evi- dence that Reid had violated the terms of his probation on the drug conviction, for which he received a sentence of 90 days imprison- ment. Pursuant to § 4A1.1 of the Sentencing Guidelines, the govern- ment added another criminal history point for the violation of probation, which elevated Reid's criminal history category to Cate- gory III. Because the government surprised Reid with this informa- tion, the district court agreed to sentence Reid at the low end of the Category III range (360 months), with the understanding that the court would reopen the matter if Reid found that the extra criminal history point was wrongly added. The court clearly stated that it would sentence Reid at the low end of the Category II range (324 _________________________________________________________________ 4 The jury could not reach a verdict on the charges brought against a third defendant, Vincent Knight. Knight later entered a guilty plea on one of the counts. The court also conducted two other jury trials against Der- rick Curry and Tyrone Lancaster. The jury convicted each on at least one count. Curry has filed an appeal, but it was deconsolidated by order of the court on March 1, 1995. Lancaster hаs not filed an appeal. *7 months) if Reid established that Category II was the appropriate cate- gory. After conducting further research, Reid's attorney conceded that the government correctly assigned four criminal history points to Reid.
After sentencing, Reid's attorney learned that the 1987 drug con- viction used in the criminal history category determination resulted from Reid's participation as a member of the Winestock group for the distribution of cocaine in Washington. On this appeal, Reid argues for the first time that he should not have received criminal history points for the prior drug conviction because it was part of the same course of conduct as his current convictions. Reid argues that we should sub- tract the two criminal history points assigned from that conviction and sentence him to the low end of the Category II range. The government concedes that Reid should not have received criminal history points for the 1987 conviction but argues that Reid failed to raise the issue before the district court at sentencing.
A defendant's failure to object to a sentencing issue amounts to a waiver of his right to raise that issue on appeal, absent plain error.
United States v. Grubb,
There is no question that an error was committed: even the govern-
ment concedes that Reid erroneously received two criminal history
points for a prior conviction that was part of the same course of con-
duct as his current convictions. The error was plain because, under the
Sentencing Guidelines, a defendant should receive criminal history
points for a "prior sentence" only if the prior conviction arises from
"conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). The
error clearly affected Reid's substantial rights because the extra points
caused Reid to be sentenced at a more severe guideline range. See
United States v. Robinson,
The district court stated at sentencing that it would sentence Reid at the low end of the Category II guideline range (for a level 40 offense) if that criminal history category were appropriate. We there- fore vacate and remand Reid's sentence with instructions to resen- tence him to 324 months imprisonment, the low end of the Category II guideline range.
II.
Having addressed the one issue on which we reverse, we now turn to the numerous issues on which we affirm. We first address the pre- trial issues arising from the Winestock trial. A. Wiretaps
The appellants challenge the government's authority to place wire- taps on the cellular phones of four of the appellants. _________________________________________________________________ 5 The district court stated at sentencing that it would sentence Reid at the low end of the appropriate guideline range, whether it is Category II or Category III. For a level 40 offense, the low end of the Category II range is 324 months, and the low end of the Category III range is 360 months. Thus, correcting Reid's criminal history category would reduce his sentence by three years.
Special Agent Eric V. Bryant of the Federal Bureau of Investiga- tion, acting in an undercover capacity, met Norman Brown on November 17, 1989, and portrayed himself as a supplier of untrace- able and untappable cellular phones. Bryant gave Brown a cellular phone in exchange for crack cocaine. Subsequently, Bryant supplied Tommy Patrick Johnson and Michael S. Smith with cellular phones in exchange for crack cocaine. Sergeant Thurman J. Dade of the Washington Metropolitan Police Department supplied cellular phones to Paul Winestock, Jr., and his associates. On September 10, 1990, after receiving court authorization, the government tapped the cellular phones of Norman Brown, Tommy Johnson, Michael Smith, and Paul Winestock, Jr., as well as Wine- stock's home telephone line. After one month, the government droрped the taps on Johnson's and Smith's phones. The taps on Brown's and Winestock's phones remained until December 5, 1990.
The government intercepted hundreds of conversations, many dealing explicitly with drugs. At trial, the government introduced many of these conversations into evidence.
Robert S. Mueller, III, an acting Assistant Attorney General of the Criminal Division of the Department of Justice, authorized the gov- ernment's applications for wiretaps. The appellants argue that Muel- ler, as an acting Assistant Attorney General, lacked the statutory power to authorize the wiretap applications. The appellants base their argument on 18 U.S.C. § 2516(1) as originally enacted in 1968:
The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for . . . an order authorizing or approving the interception of wire or oral communications by [federal investigative agen- cies seeking evidence of certain designated offenses].
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90- 351, § 802, 82 Stat. 197, 216 (1968). Under this provision, the Attor- ney General cannot delegate the power to authorize wiretap appliсa- tions to acting Assistant United States Attorney Generals.
Congress, however, amended this provision in 1986 to allow an acting Assistant Attorney General specially designated by the Attor- *10 ney General to authorize wiretap applications. Electronic Communi- cations Privacy Act of 1986, Pub. L. 99-508, § 104, 100 Stat. 1848, 1855 (1986). On May 24, 1989, Attorney General Richard Thornburg gave the power to authorize wiretap applications to"the Assistant Attorney General in charge of the Criminal Division, any acting Assistant Attorney General in charge of the Criminal Division, and any Deputy Assistant Attorney General of the Criminal Division." Order No. 1348-89 of the Attorney General of the United States (May 24, 1989). Thus, Robert Mueller, in his capacity as acting Assistant Attorney General of the Criminal Division, had the power to autho- rize wiretap applications in September 1990. The appellants argument is therefore meritless.
B. Search of Vehicle
We next review whether the search of Cynthia Brown's vehicle violated the Fourth Amendment.
On October 21, 1990, Paul Winestock, Jr., who based his operation in Maryland, contacted Melvin Ford in Philadelphia, Pennsylvania, and began making arrangements for Ford to supply Winestock with cocaine. FBI agents, having tapped Winestock's cellular phone line and home telephone line, closely monitored all contacts between Winestock and Ford over the next few weeks.
In the early morning of November 9, 1990, the FBI intercepted a telephone call from a man named Eric (later identified to be Eric Brown) to Winestock. Eric notified Winestock that"the main man" had "something" for him that would be available the next day. 6 Other intercepted calls that day clarified that Winestock would receive five kilograms of cocaine from Philadelphia. At 10:19 p.m., the FBI inter- cepted a conversation between Eric and Winestock, in which they confirmed that the price would be $28,500 per kilogram and that the courier would receive $250 per kilogram, or $1,250. At approxi- mately 9:37 a.m. the following morning, the FBI intercepted another of Eric's calls confirming that his driver was at the International House of Pancakes in a rented red Corsica. At 10:50 a.m., Winestock _________________________________________________________________ 6 Apparently, Eric Brown and Melvin Ford were both agents of the same source in Philadelphia. *11 and the courier spoke to Eric on Winestock's cellular phone. The cou- rier verified to Eric that she had received "the paper, the 1,250," a ref- erence to her courier fee. She also told Eric that she would be on the road within three hours. Winestock told Eric that the couriеrs were at the Marriott Hotel under his name. Winestock gave Eric the phone number of the hotel.
Undercover agents went to the hotel and observed a rented red Cor- sica with Pennsylvania license plates. Agents at the hotel had received a general description of the individuals staying in the room under Winestock's name, and they observed two women who fit that gen- eral description enter the red Corsica and drive off. They headed south on I-95, instead of north toward Philadelphia. The Corsica trav- elled recklessly between 80 and 95 miles per hour. Special Agent Andrew McColl, who headed the investigation of Winestock, was not at the scene but followed these events by police radio and by cellular phone. He concluded that the women in the red Corsica were couriers en route to making another cocaine delivery. He ordered the agents at the scene to stop and search the vehicle. With the assistance of a Virginia state trooper, the agents stopped the Corsica.
Special Agent Stephen Benjamin approached the vehicle and spoke with the driver, Cynthia Brown. He asked for permission to search the contents of the vehicle. She consented. Benjamin asked if he could look in the trunk. Again she consented and handed him the keys. He asked if she would open the trunk; she did. Two bags were in the trunk. Brown identified her bag, and she opened it herself. Benjamin found clothing in the bag, but there was a shoebox at the bottom. When asked, Brown stated that the shoebox contained shoes. Without asking for Brown's consent, Benjamin opened the shoebox and found three kilograms of cocaine.
In a pre-trial motion, the defense tried to suppress the evidence found in the search. The district court denied the motion, finding that the government had probable cause to search the vehicle and had received the defendant's consent to search.
"The police may search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is
*12
contained." California v. Acevedo,
III.
We next address several trial issues arising from the Winestock trial.
A. Timing of Closing Argument
First, we consider whether Melvin Ford can challenge his convic-
tion on the ground that his attorney delivered his closing argument
eleven days before the jury began its deliberations.
*13
As already described in the previous section, Melvin Ford was con-
tacted by Paul Winestock, Jr. on October 21, 1990, about the purchase
of cocaine. Over the next few weeks, Ford and Winestock made the
necessary arrangements, which FBI agents intercepted from their
wiretaps. Other surveillance agents saw Ford and Winestock meet in
person, both in Maryland and Philadelphia. On November 9 and 10,
1990, FBI agents intercepted a series of telephone calls between
Winestock and Eric Brown which revealed the delivery of five kilo-
grams of cocaine from the source in Philadelphia to Winestock in
Maryland. These conversations led to the stop and search of Cynthia
Brown's vehicle. The jury convicted Ford of one count of distribution
of cocaine for his involvement as a middleman for the source in Phila-
delphia that supplied cocaine to Winestock. As with the other defen-
dants, he was acquitted of conspiracy.
Ford argues that the district court's denial of severance dеprived
him of an effective closing argument.
7
At the close of evidence, each
defendant's attorney made a closing argument. Because of the time
involved for so many closing arguments, the jury did not receive the
case until eleven days after Ford's attorney made his closing argu-
ment. Ford contends that the evidence against him was so weak that
if the jury had heard his closing argument closer to its deliberations,
he would certainly have been acquitted.
No constitutional or statutory provision gives a criminal defendant
the right to have the jury hear his closing argument immediately
before the case is sent to the jury. In a large-scale, multi-defendant
prosecution, simple logistics demands that some defendants' attorneys
will have to make their closing arguments several days or even a few
weeks before the jury commences its deliberations. Courts have
shown a strong preference for joinder of criminal defendants, which
promotes efficiency and judicial economy. United States v. Tedder,
_________________________________________________________________
7
Actually, Ford attempts to twist his argument into a claim for ineffec-
tive assistance of counsel. Ford, however, cannot blame his trial counsel
for delivering his closing argument eleven days before the jury began its
deliberаtion. The attorney had no choice in the matter. The district court,
by denying the defendants' motion for severance, forced the simulta-
neous trial of seventeen defendants. We therefore treat Ford's argument
as a challenge to the denial of severance.
*14
We turn next to the denial of Carlos McGill's motion for severance or a mistrial. Before trial, the defendants moved for severance, claiming that there was insufficient evidence for the jury to find a single conspiracy of the charged defendants (Count I). The defendants argued that Nor- man Brown and Paul Winestock, Jr. ran separate operations. The gov- ernment's theory was that Brown and Winestock headed somewhat independent but interrelated and interacting branches of a large, fluid drug conspiracy. In denying the motion for severance, the district court found sufficient evidence for a jury to find a single conspiracy and allowed the conspiracy charge to go to trial.
Carlos McGill was one of the defendants charged in the conspir- acy. About a month into trial, McGill moved for a severance or mis- trial and requested the government to explain how the Brown and Winestock groups were connected. McGill insisted that the evidence presented by the government up to that point demonstrated that Brown and Winestock ran separate operations. The government recited the evidence it had so far presented and explained the evi- dence it would present to connect Brown and Winestock as branches of a single conspiracy. Satisfied with the government's proffer of evi- dence, the district court denied McGill's motion for severance or mis- trial. At the conclusion of the evidence, however, the district court found sufficient evidence to warrant giving the jury a multiple con- *15 spiracy instruction. The jury acquitted the defendants on the conspir- acy charge. Although acquitted of conspiracy, McGill was convicted on one count of distribution of crack cocaine and one count of possession with intent to distribute crack cocaine. On November 7, 1990, McGill gave 53.54 grams of crack cocaine to Sergeant Dade in payment for Winestock's cellular phone. This transaction formed the basis of the distribution charge brought against McGill. On December 5, 1990, the police searched McGill's residence and found 84 grams of crack cocaine inside a safe in his closet. This evidence formed the basis of the possession with intent to distribute charge brought against McGill. In urging this court to reverse his convictions on the substantive counts, McGill ostensibly argues that the district court erred in deny- ing his motion for severance or mistrial. The substance of his argu- ment, however, is that a material variance occurred because the government indicted the defendants on a single conspiracy but pres- ented evidence of multiple conspiracies. We therefore review McGill's claim first under a "variance" analysis.
A variance occurs when the evidence at trial establishes facts mate-
rially different from thosе alleged in the indictment. United States v.
Kennedy,
The government's theory of the case was that Norman Brown and Paul Winestock, Jr., headed somewhat independent operations but participated in a single, albeit loose-knit, conspiracy. The government presented evidence linking several of the defendants and witnesses to both Brown and Winestock and showing that Winestock occasionally supplied Brown with crack cocaine. The government also showed that the two spoke on the phone on occasion; in one conversation, Wine- stock asked for Brown's help in obtaining a gun, and in another, *16 Winestock invited Brown to a meeting with his source in Philadel- phia. The district court found that the government introduced suffi- cient evidence to send the conspiracy issue to the jury.
The fact that the jury acquitted the defendants on the conspiracy
charge does not demonstrate a material variance. The verdict shows
that the jury found the evidence of a single conspiracy lacking, but
not that the government's evidence pointed inescapably to the exis-
tence of multiple conspiracies. The government tried its conspiracy
case and lost, but losing does not in itself create a material variance
that undermines the jury's convictions on the substantive counts. A
variance occurs when the government produces so little evidence on
a charge in the indictment that the charge should not even be sent to
the jury.
Even if a variance had occurred, we would still affirm McGill's
convictions. "A variance constitutes a legitimate grounds for reversal
only if the appellant shows that the variance infringed his `substantial
rights' and thereby resulted in actual prejudice." Kennedy,
In fact, we find that the jury demonstrated its ability tо sift through
the evidence and draw conclusions based on the evidence relevant to
each defendant. The jury did not convict all seventeen defendants on
all the counts charged against them. The jury acquitted the defendants
on the conspiracy counts. It convicted on some of the substantive
charges, and acquitted on others. The jury acquitted six defendants on
all of the charges brought against them. The verdict reveals that the
jury did not convict or acquit the defendants as a group. The jury went
through the indictment methodically and reached an independent ver-
dict on each charge.
If we treat McGill's argument as a review of the trial court's ruling
on his motion for severance or mistrial, we reach the same conclu-
sion. We review a trial court's ruling on a motion for severance or
mistrial under the abuse of discretion standard. United States v. West,
C. Evidentiary Rulings
We next review two evidentiary rulings that affected Robert A. Williams.
Williams was convicted of possession with intent to distribute 117 grams of crack cocaine. The evidenсe on which Williams was con- victed was found in a four-bedroom house at 501 Castlewood Place in Largo, Maryland, where Williams was living. In one of the bed- rooms, identified at trial as "bedroom number four," the police found a beeper, Williams' social security card, 7 grams of crack cocaine, and $800 in cash. Another bedroom, identified as"bedroom number two," contained more incriminating evidence: 117 grams of crack cocaine, a loaded .357 Magnum, a cellular phone, and $1803 in cash. Williams claims that he resided in bedroom number four, and that Bernard Langley, another resident of the house, lived in bedroom number two.
During the presentation of the defense's case, Williams requested that Special Agent Wally Borum be recalled to testify that Bernard Langley, and not Williams, occupied bedroom number two where the 117 grams of crack cocaine were found. The district court denied Wil- liams' request. Williams argues that he was prejudiced because the district court denied his request to recall Special Agent Borum.
We review the district court's evidentiary rulings for abuse of dis-
cretion. United States v. Hassan El,
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mis-
take or accident . . . .
Fed. R. Evid. 404(b). We have held that "other identical instances of
criminal activity to that charged in the indictment, occurring reason-
ably current with the activity charged in the indictment and connected
with the very illegal activity which was the subject matter of the
indictment, is admissible under the rubric of intent, plan, scheme or
design." United States v. Ramey,
D. Failure to Grant Mistrial
We next consider whether the district court, after learning that a third party had improperly contacted one of the jurors, erred in not granting a mistrial.
After a five-month trial, the jury finally received the case on March 31, 1992, and deliberated for seven court days. On the evening of April 9, the jury informed the court that it had reached a verdict on all counts except for two counts of distribution of cocaine, both of which pertained to Eric Brown. On the morning of April 10, 1992, one of the jurors informed the court that an individual had phoned her the night before wanting to know the status of the deliberations. The district judge spoke with the juror in chambers and, in front of coun- sel, questioned her extensively about the incident. The juror main- tained she could proceed with the deliberations even though the incident had disturbed her.
The government suggested that a mistrial may be in order because it would be unfair to put the juror through the stress of additional deliberations. Eric Brown's attorney asked for a mistrial, which the court indicated it would grant. When the court reconvened, however, Brown's attorney explained he had changed his mind and asked for the jury to continue its deliberations. The district court agreed with the request and did not grant a mistrial on the remаining two counts. Before the jury returned to its deliberations, the court directed the jury to return a verdict on the counts it had decided. The jury announced it had acquitted on the conspiracy counts and on many of *21 the substantive counts. The jury then returned to its deliberations, and when it returned, it convicted Brown on one of the remaining counts and acquitted on the other.
Brown now claims his counsel failed to represent his wishes in not moving for a mistrial. He alleges he was not informed that his attor- ney had changed his mind and would request that the jury continue its deliberation. Brown claims that, had he known of his attorney's decision, he would have directed him to request a mistrial. However, when court had reconvened and Brown's attorney had requested that the jury continue its deliberations, Brown did not make his feelings known to the court.
To the extent Brown argues that the district court should have
declared a mistrial sua sponte over the attorney's request that the jury
continue to deliberate, we review the district court's decision for plain
error. United States v. Barnes,
To the extent Brown raises an ineffective assistance of counsel
claim, we do not reach the issue. A claim of ineffective assistance of
counsel is normally considered on collateral review, not on direct
appeal. United States v. Grubb,
E. Improper Cross-examination
We next review whеther the district court should have granted a mistrial to Michael D. Short for the government's allegedly improper cross-examination of Short's character witnesses. Short was convicted on one count of distribution, involving a direct delivery of crack cocaine to an undercover agent. At trial, Special Agent Bryant identified Short and testified that on December 19, 1989, Short gave him one half ounce of crack cocaine as payment for Norman Brown's cellular phone service and an additional two ounces in exchange for $1,800 in cash. Because Short was also charged with conspiracy, the government presented other evidence of Short's drug trafficking activities to show his participation in the conspiracy. As part of his defense, Short called several character witnesses.
During cross-examination of some of these witnesses, the government made several improper statements. First, the government asked Cindy Dennison, one of the character witnesses, the following question:
Q: Were you aware that on December 5, 1990, when agents of the FBI and the Metropolitan Police Depart- ment were looking for Mr. Short, to arrest him pursuant to our arrest warrant, that they spoke with Rhondа Short, Mr. Short's sister, and she said, "What do you want him for? I know he does some dealing." Were you aware of that statement?
A: No, I was not.
Short objected to this question because Rhonda Short's statement had
never been placed in evidence and the prosecutor's use of the state-
ment constituted hearsay. Second, the government asked Douglas
Winkler, another character witness, whether he knew that Short had
admitted to purchasing a .44 magnum for $200 on the street; when the
*23
witness said that he had not, the government asked him whether his
opinion of Short would change if the admission were true. Although
Short does not contest the fact that he made the admission, he
objected to the question because it asked the witness to give his opin-
ion of Short's character based on an unsubstantiated fact. Cf. United
States v. Siers,
The district court sustained the objections and issued limiting instructions to the jury on the following morning. With regard to the question to Ms. Dennison concerning Rhonda Short's statement of her brother's of dealing drugs, the district court instructed the jury to dis- regard both the question and the answer because"there isn't any evi- dence that Mr. Short's sister had made any such statement." Similarly, with regard to the question to Mr. Winkler regarding Short's admis- sion that he purchased a gun, the district court instructed the jury to disregard both the question and the answer because"there simply is no evidence before you as to whether Mr. Short ever made any such admission."
Despite these limiting instructions, Short argues that the govern-
ment's improper questioning prejudiced his defense and that the dis-
trict court should have granted a mistrial. We disagree. Courts
"presume that a jury will follow an instruction to disregard inadmissi-
ble evidence presented to it, unless there is an`overwhelming proba-
bility' that the jury will be unable to follow the court's instructions
. . . and a strong likelihood that the effect of the evidence would be
`devastating' to the defendant." Greer v. Miller,
IV.
We next consider the appellants' remaining challenges to their sen- tences.
A. Sentencing of Norman Brown
Norman Brown received a sentence of life imprisonment under the mandatory minimum sentence provision in 21 U.S.C. § 841(b)(1)(A)(iii). He raises three arguments against his sentence, which we address in turn.
1. Constitutionality of 100 to 1 ratio for crack cocaine
First, Brown challenges the constitutionality of the 100 to 1 con-
version ratio between powder cоcaine and crack cocaine in the United
States Sentencing Guidelines. We have addressed this issue before
and have repeatedly affirmed the constitutionality of the sentencing
ratio for powder cocaine and crack cocaine against equal protection
and due process challenges. United States v. Fisher,
Second, Brown argues that he should not have received a manda- tory life sentence under 21 U.S.C. § 841(b)(1)(A)(iii). That section provides that if a defendant is convicted of an offense involving 50 grams or more of cocaine base and committed "after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . . ." 21 U.S.C. § 841(b)(1)(A)(iii). Brown had two prior felony convictions resulting from two sales of cocaine to an undercover agent on July 13, 1987 and July 15, 1987. These actions formed the basis for two separate counts of a single indictment. The counts were tried together, Brown was convicted of both, and the court imposed concurrent sentences. Brown argues that the two prior convictions arose from a single act of criminality, and he urges this court to construe thеm as a single conviction for purposes of sentenc- ing under 21 U.S.C. § 841(b)(1)(A)(iii).
Brown argues that our decision in United States v. Blackwood, 913
F.2d 139 (4th Cir. 1990), supports his position. In Blackwood , the
defendant had two previous convictions for possession of large quan-
tities of marijuana. The first conviction involved marijuana found in
a pickup truck that the defendant was driving when arrested. The sec-
ond conviction concerned marijuana found in the defendant's motel
room less than two hours later. We held that the two convictions arose
from a single act of criminality--the possession with intent to sell
marijuana within a limited geographical area and period of time--and
should therefore have been treated as one prior conviction for pur-
poses of 21 U.S.C. § 841(b). Id. at 145. We recognized that, for pur-
poses of 21 U.S.C. § 841(b) and other similar sentencing
enhancement statutes, the term "prior convictions" refers to "separate
criminal episodes, not separate convictions arising out of a single
transaction." Id. at 145-46. Relying on Blackwood, Brown contends
that his two prior convictions for distribution of cocaine arose from
a single act of criminality, and that his prior convictions should be
treated as a single prior convictiоn.
We disagree. Brown was previously convicted of distribution, not
possession. An instance of possession is somewhat amorphous: a sin-
gle act of possession may occur over a period of time and in a range
*26
of locales. An act of distribution, however, occurs at a distinct time
and place. We have held that separate acts of distribution that occur
on different days or even at different times on the same day constitute
separate criminal episodes. See United States v. Letterlough, 63 F.3d
332, 334-37 (4th Cir.) (two convictions for two acts of distribution of
a single dose of crack cocaine occurring less than two hours apart on
the same evening constituted two prior convictions for purposes of 18
U.S.C. § 924(e), a similar mandatory minimum sentencing statute),
cert. denied,
3. Evidence of attributable weight of crack cocaine.
Brown also claims that the evidence attributing 551 ounces of crack cocaine to him was unreliable. Because we affirm the imposi- tion of a life sentence under 21 U.S.C. § 841(b)(1)(A), the calculation of Brown's sentence under the guidelines is irrelevant. We therefore do not review the evidence supporting the calculation of Brown's attributable weight.
B. Sentencing of Jeffrey A. Reid
We have already vacated Jeffrey A. Reid's sentence and remanded for resentencing under criminal history category II. Reid also raises two other challenges to his sentence, which we now address. 1. Rule of lenity
First, Reid challenges the differentiation between cocaine powder and cocaine base inherent in the Sentencing Guidelines. The drug quantity table in U.S.S.G. § 2D1.1 has separate listings for "Cocaine" and "Cocaine Base," such that the penalty for cocaine base is much *27 more harsh than for an equivalent amount of cocaine. The term "co- caine base," however, is not defined by statute or in the Sentencing Guidelines. The term "cocaine" is defined by statute as:
Coca leaves except coca leaves and extracts of coca leaves
from which cocaine, ecgonine, and derivatives of ecgonine
or their salts have been removed; cocaine, its salts, optical
and geometric isomers, and salts of isomers; ecgonine, its
derivatives, their salts, isomers, and salts of isomers; or any
compound, mixture or preparation which contains any quan-
tity of any of the substances referred to in this paragraph.
21 U.S.C. § 812(c). Reid argues that this definition of "cocaine"
includes cocaine base. There is no scientific distinction between pow-
der cocaine and crack cocaine: they share the same chemical proper-
ties, molecular weight, and melting point. See United States v. Davis,
The rule of lenity provides that a court will not interpret a federal
criminal statute so as to increase the penalty that it places on an indi-
vidual when such an interpretation can be based on no more than a
guess as to what Congress intended. Bifulco v. United States, 447 U.S.
381, 387 (1980); Ladner v. United States,
2. Alleged inaccuracies in presentence report Finally, Reid argues that we should remand for resentencing because the district court did not correct alleged inaccuracies in his presentence report. The district court did not address Reid's objec- tions to the report's accuracy because it specifically stated that it was not relying on the accuracy of the report but on its own recollection of the evidence presented at trial. Reid maintains, however, that the district court should have corrected the alleged inaccuracies in the presentence report because the Bureau of Prisons will use that report throughout Reid's incarceration. Rule 32(c)(1) of the Federal Rules of Criminal Procedure provides that:
At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the presentence report. The court may, in its discretion, permit the parties to intro- duce testimony of other evidence on the objections. For each matter controverted, the court must make either a find- ing on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing. A written *29 record of these findings and determinations must be appended to any copy of the presentence report made avail- able to the Bureau of Prisons.
Fed. R. Crim. P. 32(c)(1) (emphasis added). The district court clearly complied with this rule. When Reid raised objections to findings made in the presentence report, the district court stated on the record that "I don't think it is really necessary that we get into that because for purposes of sentencing I am not relying upon in any respect the factual matter that is set out in the presentence report." Transcript of Sentencing Hearing for Jerry Andrew Reid at 7. Given this ruling, it was unnecessary to correct any alleged inaccuracies in the presen- tence report.
We assume that a written transcript of the sentencing hearing has been appended to the copy of the presentence report made available to the Bureau of Prisons, as required by Rule 32(c)(1). Our holding today does not prevent Reid from arguing in the future that the Bureau of Prisons has not received a transcript of the sentencing hear- ing. C. Sentencing of Carlos E. McGill
Carlos E. McGill raises a sufficiency of the evidence claim con- cerning several kilograms of cocaine base that was attributed to him at sentencing.
The jury convicted McGill for the distribution of 53.54 grams of crack cocaine to an undercover agent, and for possession with intent to distribute 84.3 grams of crack cocaine, which was found at his resi- dence during the execution of a search warrant. At sentencing, the district court found that McGill participated in the efforts of Paul Winestock, Jr., to obtain large quantities of cocaine from a source in Philadelphia, and attributed an additional seven kilograms of crack cocaine to McGill. Although the cocaine obtained by Winestock from Philadelphia came in powder form, the district court treated it as crack cocaine because it found that McGill knew or should have known that the powder cocaine would be converted into crack cocaine before it was sold. The district court stated:
I guess I am satisfied that, although perhaps reluctantly so, perhaps I didn't really want to hear it and didn't want to be satisfied, but I can't escape it because I am confident that there has been a preponderance of the evidence to indicate that the seven kilograms from October and November from Mr. McGill's standpoint did involve foreseeability that they would become crack cocaine. It is important that it was crack that he had in his house when he was arrested. I can't conclude that Mr. McGill stuck his head in the sand with regard to what he foresaw or should have foreseen with regard to the powder that was ultimately cooked into crack. The evidence is just too convincing. It probably really reaches a clear and convincing standard that on this point leaves me with no other conclusion to make on the seven kilograms and of course, that he was convicted with respect to the two counts.
We review the district court's factual findings under a clearly erro-
neous standard. United States v. Williams ,
Roderick Brown challenges the attribution of 969.56 grams of crack cocaine to him during sentencing.
Brown was convicted on one count of distribution of cocaine to an undercover agent. At sentencing, Brown conceded that two distribu- tions (of 28 grams and of 5 grams) could be attributed to him. The district court also attributed another 969.96 grams of crack cocaine to Brown because of his involvement in "cooking" cocaine powder into crack cocaine. Brown argues that the jury's acquittal on the conspir- acy counts indicates their finding that Brown was not involved in cooking drugs.
At sentencing, a district court may consider evidence relating to
counts on which the defendant was acquitted. United States v.
Bernard,
V. Jury Selection at the Smith Trial
We next turn to the one issue raised by the defendants at the trial of Hassan L. Smith and Michael S. Smith.
During jury selection, the district court conducted a voir dire exam- ination of the jury pool. Twenty-seven members of the jury pool responded affirmatively when asked if they had previous contact with the criminal justice system. Each one of these 27 members was exam- ined individually at the bench by the district court and by counsel. None of the defendants heard what transpired during the bench con- ferences. After the completion of voir dire, the court recessed so that counsel could confer among themselves. After the break, counsel sub- mitted their list of peremptory challenges, and the jury was chosen. The district court released the remaining members of the venire and swore in the jury. The court then broke for lunch.
After the lunch break, the defendants' attorneys informed the court that the defendants had voiced their objection to the jury sеlection process during the lunch break. Specifically, they complained that they were not present at all stages of the jury selection process because they could not hear the discussions that transpired during the bench conferences with individual members of the venire. Further- more, the defendants complained that their attorneys compiled the list of peremptory challenges without consulting their clients. The defen- dants requested that the court summon a new venire and select a new jury. The district court denied their request because they objected too late, after the jury had been sworn in.
Rule 43(a) of the Federal Rules of Criminal Procedure provides as follows:
The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
Fed. R. Crim. P. 43(a). We agree that the defendants had the right to be present during the bench conferences with the jurors, but we con- clude that the defendants waived their right by failing to object before the district court swore in the jury. The Supreme Court has stated:
The district court need not get an exprеss "on the record"
waiver from the defendant for every trial conference which
a defendant may have a right to attend. . . . A defendant
knowing of . . . a discussion [between a juror and the district
judge] must assert whatever right he may have under Rule
43 to be present.
United States v. Gagnon,
In normal cases the defendant upon request should be allowed to observe and hear juror responses made at the bench. But because it is a right infrequently exercised and usually delegated to counsel, unless a specific request is made for the defendant to participate in bench examinations of prospective jurors, such right shall be deemed to have been waived.
Washington,
We conclude that the defendants' assertion of their right to be pres-
ent during the bench conferences was untimely because it came after
the district court swore in the jury. See United States v. Romero-
*33
Reyna,
VI.
For the foregoing reasons, we affirm the convictions of all of the appellants, and we affirm the sentences of all of the appellants except for Jeffrey A. Reid. We vacate and remand Reid's sentence with instructions to resentence him to 324 months imprisonment.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART