*1 abouts, stepfather’s unreasonable. Wood re- witnessed the conduct was was re- difficult, evolving, peated inability uncer- contact sponding stepdaugh- to a and his situation, was attempting notwithstanding presence tain and he to ter of her home, harm to the car outside all in a prevent neighborhood imminent Hunsber- locate the a gers’ missing nearby and to where vacant house property burned only recently It reasonable to think that down apparent NW. would be as the result presence in house would be of unauthorized it is tempting Blessard’s use. While actions, second-guess if located.2 useful were an officer’s it NW is also true real harm persons and we conclude defendant did Because property “if tried to police could result act Amendment, not violate the Fourth the calm with associated deliberation with need to ask whether the al- proceed not judicial process.” Wayne, 318 F.2d at clearly leged right was established. 212. Because response defendant’s Pearson, at There sig- 129 S.Ct. 818. is a emergency perceived he was objectively a overlap nificant between Fourth reasonable, qualified is entitled to im- analysis qualified and a im- Amendment munity. denying The order defendant munity are inquiry; ultimately both con- reversed, qualified immunity is and the cerned reasonableness. Wood’s ac- with case is remanded for further proceedings tions and he were reasonable therefore opinion. consistent with this immunity money from damages. deserves
REVERSED AND REMANDED III. fear surprise
We do not discount the experienced
that plaintiffs no doubt from
an into unwanted intrusion their home.
But to the whole say that situation was an saying unfortunate is different America, UNITED STATES of objectively officer was unreasonable in act- Plaintiff-Appellee, ing up, sum evening as he did. To question, knew of the officer two 911 Anthony JEFFERS, Marc neighbor complaining calls from a of noise Defendant-Appellant. the Hunsberger and disturbances at resi- No. 06-5289. view neighbor’s dence and the at were not home. The offi- Hunsbergers Appeals, United States Court of personally suspicious cer observed behav- Fourth Circuit. goings ior and and comings upon furtive Argued 2009. March addition, approach. his the officer Decided June knew of after missing minor the hour of midnight, observed the shaken stepfather stepdaughter’s
worried his about where- work, identifying Nothing suggest solely help is intended to but herein officers have free license allow civilians stepdaughter removing poten- her from a private during into homes searches. Our reasonable, dangerous tially To be situation. holding presence governed Blessard's is as to presence during party of a third search us, specific facts before in which a justifi- of a home be "related to the must thus girl missing minor in the middle of the police entry,” cation for here the identifica- night, very possibly in the home and in need possibly endangered of a lost tion child. stepfather entered the assistance. Wilson, 119 S.Ct. 526 U.S. any police home to assist routine
possessing a firearm in furtherance of that crime, violation 18 U.S.C. 924(c)(1)(A) (the offense”). “firearm appeals convictions sen- tence, and grouped we have his multiple (several appellate contentions of which (1) preserved) were not as follows: district deprived him of process due by conducting proceedings record; off the (2) the evidence fails to support his convic- (3) offense; tion on the firearm instructions were erroneous in various re- (4) spects; the court committed two sen- (5) errors; tencing prosecution failed comply discovery its obli- gations. below, explained As each of his contentions and affirm. Warren, ARGUED: Katherine A. I. Wu, DC, Wheat & Washington, Appel- Hudson, lant. Jean Barrett Office of the A. Attorney, Charlottesville,
United States *6 Virginia, Appellee. for ON BRIEF: Ju- Jeffers’s convictions arise par- from his Wheat, Wu, dith L. Wu, Shanlon Wheat & ticipation in illegal an drug enterprise, DC, Washington, for Appellant. Julia C. operated which out of an old motel Dudley, Acting United States Attorney, Luray, Virginia, that had been converted Roanoke, Virginia, for Appellee. (“Shriver’s Motel”). into apartments After NIEMEYER, KING, Before and receiving information that cocaine base DUNCAN, Judges. Circuit (“crack “crack”) cocaine” or and cocaine being were Motel, sold at Shriver’s by published Affirmed opinion. Judge Luray Police Page and the County Sheriff opinion, KING wrote the in which Judge investigated, conducting surveillance activ- NIEMEYER Judge and joined. DUNCAN ities making and more thirty than con- Judge NIEMEYER separate wrote a drug trolled buys in the month of January concurring opinion. investigation revealed that OPINION large quantities of crack were being sold and 2, distributed there. February On KING, Judge: Circuit 2002, the authorities executed search war- Defendant Anthony Marc Jeffers was rants at Shriver’s Motel and arrested four convicted in the Western Virgi- District of suspects in the illicit enterprise: Brian nia of conspiring to grams distribute 50 or Carter, Jackson, James Johnson, Shannon more of a mixture or containing substance and “Bobby” William Pettis. Jeffers was base, cocaine in contravention of 21 U.S.C. (the later, indicted years 16, over two on “conspiracy offense”), June and of 2004, using carrying or a firearm and he was during and in arrested on November drug crime, relation to a trafficking 29, and of 29, diet, September
B. on Jeffers filed a trial, a new a motion motion for as well as 22, 2006, following September On acquittal for the firearm judgment on trial, convicted Jeffers was three-day jury offense. him against on the five counts levied two of (the “Indict-
in a indictment sixteen-count sentencing hearing was con- Jeffers’s ment”).1 the two of convic- Only counts in the district ducted court on December One and Fourteen—were tion—Counts Good, probation and William offi- for determination. Count submitted prepared presen- who had cer Jeffers’s offense, conspiracy that alleged One (the “PSR”), investigation report tence tes- thereafter, August or Jef- around and evidence, Relying tified. on the trial Good conspired fers with others to distrib- had provided the court testimony Jef- more of con- grams ute or a substance responsible fers was more than 1.5 base. Fourteen taining cocaine Count crack, kilograms emphasized and offense, charged Jeffers with firearm a “very his estimate was conservative a firearm he had used carried imposing amount.” J.A. 891.2 In traffick- during drug and in relation sentence, the court pred- stated that it was One, ing charged crime in Count and drug icating quantity finding its on Good’s possessed a firearm furtherance of and, testimony “more importantly, based crime. on the Court’s from the evi- recollection rebuttal, case-in-chief its that was at trial.” Id. dence adduced six- prosecution presented approximately 909. The court found that “the evidence teen These witnesses included witnesses. by a clearly supports preponderance of the two local officers involved in the surveil- responsibility for at [Jeffers’s] (Dwight lance Motel Farmer of Shriver’s kilograms least one-and-a-half of crack co- Kibler); three officers John federal At caine.” Id. of the hear- conclusion (Jeremy Ha- involved in Jeffers’s arrest ing, the court sentenced Jeffers to 324 naker, Sheppard, Brian William Met- conspiracy months on the offense and 60 (Jason calf); confidential informants two offense, on the firearm to run con- months Strickler); and seven Giles and Nathan *7 secutively.3 imposed The court also (Carter, coconspirators Jack- cooperating $25,000 and a special fine assessment. $200 son, Chu, Lewis, Johnson, Le- Joby John 8, 2006, On court December denied Mewborn, Wigington). notto and Adrian judg- motions for trial and a new defense, In eight his Jeffers called wit- acquittal, judg- of final ment and entered nesses, generally who testified about 12, 2008, March the court re- ment. On in work and events in participation social duced Jeffers’s sentence on Count One ninety D.C.—about miles Washington, months, from 324 months 262 because of 1999 and Luray—between August 2002, Sentencing retroactive amendments to the February the timeframe of the con- Following jury’s guilty ver- for crack spiracy. Guidelines cocaine convictions. charged five court 1. The Indictment Jeffers with 3. The district also sentenced Jeffers to One, Two, Four, Three, Counts years supervised counts: five of release to each of 21, 2006, September dis- Fourteen. On Fourteen, Counts One and to run concurrent- granted judgment acquittal trict court ly- Two, Three, and Four. Jeffers on Counts -” Citations herein "J.A. refer Appendix by the contents of the Joint filed parties appeal. in this 564 timely appeal on ror.” Br. Appellant (quoting
Jeffers filed notice of 27 United 20, possess jurisdic- 311, 214 Simpson, Fed.Appx. December We States 313 3742(a) § pursuant Cir.2007)(unpublished)). tion to 18 U.S.C. We review challenge predicat 28 U.S.C. de novo a constitutional ed on a district alleged noncompli court’s
II. ance with the Reporter Court Act. See Brown, States v. 202 are, United F.3d 696 appeal Jeffers’s contentions on for (4th Cir.2000). analysis, grouped categories. our into five First, Jeffers maintains the district It is clear that “a criminal defen deprived him process by of due con- right meaningful dant has a to a appeal ducting proceedings some of the trial off Brown, on a complete transcript.” based Second, the record. Jeffers contests the (internal quotation marks conviction, asserting firearm offense insuf- omitted). practice And a trial court’s ficiency Third, of the evidence. he chal- conducting off-the-record charge confer lenges jury multiple instructions on complicates ences our process. review In Fourth, grounds. Jeffers contends that end, however, responsible counsel were sentencing court committed two er- placing objections for their on the record Finally, prosecu- rors. he asserts that the at the opportunity, earliest and Jeffers is engaged tion in misconduct related to its rely not entitled to alleged on the court’s discovery obligations. We assess and dis- failure to comply Reporter with the Court pose of these contentions turn. Act. issue, Pertinent to this the Seventh Cir-
A. explained cuit has Reporter the Court We first address Jeffers’s asser Act not require “does the conference on tion prejudiced that he “has been and de jury instructions to be held in open court.” prived rights of his constitutional to due United States v. Murphy, 768 F.2d process” proceedings because certain (7th Cir.1985). And the First Circuit the district court were not transcribed has observed that “[w]hether or not an off- reporter. a court Br. Appellant 30. In occurs, the-record conference counsel re- particular, Jeffers contends that the con obligated mains ... put requests charge duct of the conference “off the rec objections instructions and on the record.” ord” him denied a verbatim account of his O’Dell, United States v. lawyers’ objections to instruct (1st Cir.2004). O’Dell, Judge Boudin contention, ions.4 In support of this Jef emphasized that “counsel would be well Act, fers Reporter relies the Court upon fully advised to insist putting on the *8 which mandates that “all proceedings in any record request objection or sought to criminal in open cases had court” be re preserved be appeal.” on Id. at 152 n. 5. 753(b). § corded. 28 U.S.C. He contends “ ‘[responsibility situation, In compli to ensure this there is no indication 753(b) § court, ance with lies with the lawyers Jeffers’s were unable to ob- reporter the or parties’ ject the and failure to to the in timely instructions a fashion. proceedings judicial Indeed, record constitutes er- day trial, on the final defense proceedings, Pertinent to these the lack a plain that instruction for error. In the face of complete instruction, proceed- record of the district objection court a recorded to an howev- ings er, impacts our standard of review. Where our review is for harmless error. Foster, 233, objection (4th there is no record of Jeffers’s ato United States v. 507 F.3d 249 instruction, particular Cir.2007). we must review
565 crime,” trafficking specifically, drug four on to the instructions objected counsel Then, following the in Count One. J.A. 19. conspiracy offense occasions. separate requested jury, the Four- to the In order to convict Jeffers Count charge objections their to restate teen, obliged prove counsel to prosecution Jeffers’s was them, me instructions, “Tell advising (1) to the beyond a reasonable doubt Jeffers ultimately Iwhat satisfied with you (2) if are used, carried, a firearm in possessed or ap- it preserve to you if want gave, trafficking crime. drug furtherance of a discussion, After some peal.” J.A. 924(c)(1)(A). have We See 18 U.S.C. “The lawyers responded, one of Jeffers’s of’ as “in furtherance phrase defined We our concerns.... Court addressed help- furthering, advancing, or act of “[t]he Your Honor.” objections, no other have 924(c) forward”; thus, requires “§ ing circumstance, we Jef- Id. In this indicating evidence government present of a tran- that the lack contention fers’s furthered, of a firearm possession that the other conference and charge script of advanced, drug a traf- helped or forward process due violated his proceedings Lomax, v. ficking crime.” United States rights.5 (4th Cir.2002) (internal F.3d 705 omitted). importance, marks Of quotation B. that, among “the in Lomax we observed con We next address ways might in which a firearm numerous insuffi trial evidence was that the tention .... a drug trafficking further or advance firearm offense. him on the to convict cient against some- gun provide could defense sufficiency challenge assessing In drug profits, or trying drugs to steal one evidence, view the evidence we that a it lessen the chance rob- might prosecution most favorable light attempted.” Id. bery would even be sup evidence” “substantial whether decide Smith, trial, linked At the evidence Jeffers v. verdict. United States ports the Cir.2006). during the course of the multiple Substan firearms evidence, explained, is “evi testified that he conspiracy we have offense. Chu tial fact could finder of that a reasonable firearms to members of supplied dence sup and sufficient accept adequate as machine including a MAC-11 conspiracy, guilt conclusion of a defendant’s port a Wiging- pistol a 9 mm to Jeffers. gun and (internal doubt.” Id. beyond a reasonable that Jef- each testified ton and Mewborn omitted). reviewing marks quotation being prevent carried a firearm to fers had evidence, are not sufficiency in- stated that Jeffers Wigington robbed. credibility, and to assess witness entitled that, somebody trying to “if dicated any con jury resolved that the we assume him, shoot them.” J.A. rob he would favor. prosecution’s in the flicting suggested that Jeffers Mewborn testified Foster, States See United guard against kept that he firearms (4th Cir.2007). once, had, robbers, at least would-be bragged shooting about someone. charged that Jef Fourteen Count coconspirators it known to his also made during and carry a firearm fers “did use or firearms, ap- numerous crime, possessed that he trafficking drug to a in relation *9 Mewborn prevent to robberies. parently in furtherance of a firearm possess did ("[T]o trial ... the defen- at 696 obtain new proceedings identifies other trial Jeffers also transcribed, transcript errors show that dant must rulings but that were not ability perfect an prejudiced his to challenges specifically any appellate re- present fails to Brown, appeal.”). rulings. 202 garding those 566 mm presents challenges
had seen
with a 9
and a MAC-
two
with
respect
Jeffers
11,
offense,
and Jackson had seen Jeffers with a .45 the instructions on the firearm
pistol.
tripa
readily reject
caliber
Johnson recounted
and we
them.7 He also
D.C.,
Washington,
when Jeffers entered
presents challenges concerning the con-
his mother’s residence and came out with a
spiracy offense:
that
the court
in
erred
pistol. Additionally,
semiautomatic
black
instructing
jury
single-conspiracy
on a
Mew-born, Jackson,
Wigington,
and John-
theory, to the exclusion of a multiple-con-
displaying guns
son recalled Jeffers
to oth-
spiracy theory;
that
the court erred in
ers.
testified that
Wigington
Jeffers had
permitting
jury
to infer that Jeffers
him a
pistol
gold
shown
black
with
trim
guilt
harbored consciousness of
because he
they
while
were at Jeffers’s mother’s resi-
sought
to conceal himself after he was
dence, and that Jeffers would sometimes
indicted;
the court committed
pull
pistol
pants “just
out of his
commonly
what is
called “Collins error” in
show it” to him.
Id.
its instructions on the conspiracy offense.
in
We address
turn the various contentions
light
Assessed
most favor
of instructional error with respect
to the
prosecution,
able
there was substan
conspiracy offense.
used, carried,
tial evidence that Jeffers
or
possessed a
firearm furtherance of the
jury
A trial court’s
instructions
conspiracy
charged
offense
in Count One.
are reviewed for abuse of discretion. See
A reasonable trier of fact was entitled to
236,
Singh,
United States v.
518 F.3d
249
offense,
guilty
(4th Cir.2008).
find Jeffers
of the firearm
course,
Of
an error of law
reject
aspect
and we
this
app
constitutes an abuse of discretion. See
Basham,
302,
United States v.
561 F.3d
eal.6
(4th Cir.2009).
assessing
326
pro
C.
instructions,
priety of
we will not reverse a
Next,
instructions,
long
we assess Jeffers’s contention that
conviction so
as the
tak
whole,
the trial
in multiple respects
court erred
in en as a
adequately state the con
First,
jury.
its instructions to the
trolling legal
Jeffers
principles.
See United
924(c) conviction”).
§
Jeffers also contends that the trial evidence
Jeffers also contends
distinguishable
on the firearm offense is
that the trial court should have instructed the
924(c)
precedent concerning §
our
because
jury
"actively
it had to find that Jeffers
guns
drugs
"no
or
were ever seized from Mr.
employed”
"during
the firearm
and in rela-
Appellant
Jeffers.” Br. of
36. We
this
conspiracy]
tion to the commission of [the
contention because a firearm need not be
offense” to convict him on Count Fourteen.
924(c)
§
seized to sustain a
conviction. See
Appellant
correctly
Br. of
24. As Jeffers
Jones,
(4th
United States v.
907 F.2d
states,
States,
Bailey
Supreme
v. United
1990).
Cir.
924(c)(1)—as
recognized
§
Court
then
written—required
employment.”
"active
offense,
respect
7. With
to the firearm
137, 150,
U.S.
116 S.Ct.
133 L.Ed.2d
asserts that the trial court failed to instruct
however,
Importantly,
Bailey
jury
unanimity
required
was
as to
“possesses” prong,
did not address the
which
used,
the actual
that Jeffers had
car
firearm
924(c).
§
added
thereafter
See Lo-
ried,
possessed
in furtherance
con
max,
(explaining
at Shriver’s
Carter said
drug
was one of
three
top
Jeffers
the
on
that—based
maintains
operating
jury
Jeffers
there. The
also
dealers
district court should
the evidence—the
testimony that
recruited
heard
Jeffers had
jury a multiple-conspiracy,
the
given
have
that
others to sell crack. Johnson testified
instruc
single-conspiracy,
to a
opposed
as
crack,
highest
the
that
quality
Jeffers sold
specifically,
One. More
Jef
tion on Count
money,
value
and
gave
best
for the
single conspiracy
that with a
fers claims
drug
times
that
there were
when other
One,
only multiple
and
charged
Count
depended
dealers at Shriver’s Motel
evidence,
by
shown
the trial
conspiracies
supply
drugs.
to
them
Fol-
Jeffers
with
created a
vari
prejudicial
instructions
arrest,
lowing
bragged
Jeffers
to Lewis
however,
concedes,
that he
ance. Jeffers
that
if Lewis sold cocaine in northwest
trial
this contention to the
present
did not
northern
it
Washington
Virginia,
court,
subject
plain
that it is
to
error
and
product.8
probably Jeffers’s
Jeffers also
error,
only.
plain
To show
Jeffers
review
that
purchased
admitted to Lewis
he had
identify
plain
an error that
and
must
is
in Florida for a good price.
cocaine
substantially
rights.
affects his
provided
Several witnesses
corroborat-
Olano,
725, 732,
v.
States
507 U.S.
United
testimony
identity
about
and
ing
1770,
was
to
beyond
... guilty
defendant
a reasonable
finding,
that the court’s con-
ment
and
knowingly conspiring
doubt of
to distribute
constitutes
cealment
instruction
re-
possess
or
with the intent
to distribute
error.
versible
(50)
fifty
grams
more than
of a mixture or
containing
substance
cocaine
Id. at
record, however,
base?”
sufficient
this
evi-
On
Thus,
jury
to
because there was no instruc-
support
finding
existed
a
dence
sought
himself
jury
to conceal
after
tion
a
requiring
that Jeffers
determination of the
indicted,
at
that his efforts
conceal-
he was
quantity
reasonably
of cocaine base
fore-
of
resulted from his consciousness
ment
Jeffers,
seeable
Collins error was com-
guilt
that such
of
guilt, and
consciousness
however,
Notably,
mitted.
not
Jeffers did
which he
to the crimes with
was
related
objection
issue,
an
on the
preserve
Collins
charged.
We thus
Jeffers’s conten-
we
this
plain
and
review
contention for
the trial court’s instruction on
tion that
only.9
error
plainly
was
erroneous.
concealment
In order to obtain relief under
review,
plain error
Jeffers must show
occurred,
that an error
the error
that,
Next, Jeffers maintains
with re-
plain,
it
was
and that
affected his sub
offense, the
conspiracy
trial
spect
Olano,
at
rights.
stantial
See
507 U.S.
jury
the
that it had
court failed
instruct
732, 113
1770. Even
S.Ct.
if he makes
quantity
of cocaine
to determine
base
however,
showing,
such a
can decline
we
error,
This
as-
attributable
him.
he
“seriously
to correct
error unless
it
serts, requires that his sentence on the
fairness,
affected
integrity,
public
or
offense
conspiracy
be vacated.
reputation
judicial proceedings.”
of
Collins,
United
v.
States
Harris,
v.
F.3d
United States
that,
properly
we held
in order to
(4th Cir.2007) (internal quotation
292-93
of
apply
sentencing
provisions
omitted).
Supreme
marks
has
Court
841(b)(1)
§
drug conspiracy
in a
that,
recognized
where
prosecution,
must determine that
a
against
“overwhelming
defendant is
drug quantity
the threshold
was reason
uncontroverted,”
essentially
error
plain
a
ably foreseeable to the defendant. See 415
fairness,
“seriously
does not
affect
in
(4th Cir.2005).
304, 314
In this pros
tegrity,
public reputation
judicial
ecution, the district court instructed the
can
proceedings,”
reviewing
object
it had to
that “the
jury that
find
it.
recognize
choose
States
United
plan
unlawful
or pos
was to distribute
Cotton,
625, 632-33,
v.
535 U.S.
122 S.Ct.
intent to
at
sess with
distribute
least 50
1781,
tions as well. situation,
In the trial this
court’s instructions the Count One con spiracy plain offense constituted error. sentencing obliged A court is Foster, See 507 F.3d 251-52.10 We are pre make factual determinations a that nevertheless satisfied the Count One ponderance of the evidence. See United upheld conviction should be because the Brika, States v. 487 F.3d seriously Collins error did not affect the Cir.2007). a We review such court’s find fairness, integrity, public reputation or error, ings of fact for clear reversing such judicial proceedings. id. Overwhelm findings only if we are “left with the defi ing evidence established Jeffers was firm nite and conviction that a has mistake personally responsible for the conspiracy’s been United committed.” States v. Har (4th Cir.2008) (inter distribution of 50 or more of grams crack. vey, omitted). heard evidence that Jeffers nal quotation marks biggest Motel; dealer at Shriver’s he simply, Put the district did multiple recruited and schooled crack not clearly finding err in responsi Jeffers crack; dealers and directed others to sell kilograms ble for 1.5 more than of crack. replenished supplies Jeffers of other trial, At witnesses multiple testified about dealers; others; he crack to fronted drug Jeffers’s distribution business internationally he travelled to obtain co Luray area. Witnesses testified that the Indeed, supplies. caine five witnesses saw illicit drug operations at Shriver’s Motel five Jeffers with one to ounces of cocaine clock, were around carried on (28 grams), to 140 and one witness stated biggest Jeffers was described as the dealer ran out” Jeffers “never of cocaine to Wigington there. had dealt drugs with Additionally, sell. trial assertions Jeffers from late 1990s until primarily focused on the issue of his guilt, when Shriver’s Motel was raided. Wiging quantity. rather than on drug Jeffers has ton readily “anywhere could obtain from thus failed to his show that sentence of 262 ounces, four to or maybe five more” months on the conspiracy seriously offense Jeffers, crack cocaine from who would fairness, integrity, affects the public large supply even then have a of crack reputation judicial proceedings, and we remaining. Wigington J.A. “couldn’t are satisfied to his contention in this put even a many number how he times” regard. bought from cocaine Jeffers. Id. at 77. rights greater substantially Jeffers's were affected than the maximum of 240 months by the Collins 841(b)(1)(C). error because was sentenced he could have received under imprisonment, to 264 months 24 months officer, for fear that “maybe probation sets to that he owed Jeffers testified He cocaine, and him [$]10,000, maybe doing more” for so could incriminate and thus of cocaine was for an ounce price hamper ap- that the chances for successful Indeed, Wigington had at 79. Id. the court peal. response, $1100. stated full of counting shoe-boxes seen be against “the inference should drawn 2000, Jackson Beginning early cash. of this in Mr. Jeffers because terms of to an ounce of from a half-ounce bought sentencing.” It J.A. 913. then found weekly basis. He crack from Jeffers on guidelines “that recommend to the take cocaine one- had seen Jeffers 25,000 to Court a fine of four million dol- approximate- pellets and cook crack ounce lars.” Id. at 915. personally wit- ly ten times. Jackson *14 the Notwithstanding sentencing court’s in selling Luray crack on Jeffers nessed an statement that inference should be daily Finally, a basis. Mewborn almost against for drawn Jeffers his refusal to bought crack from regularly and Carter divulge information, financial the record him ounces of and saw with several Jeffers actually does not show that the court re- cocaine. deciding lied on fact in the impose this overwhelming the of evidence Because contrary, fine. To the imposed the court powder and co- quantities of the of crack the fine called for minimum the Sen- bought were from Jeffers and caine that tencing And Guidelines. when the court possessed, had the district court that he fine, on the explained its decision it did not clearly finding err in that Jeffers did mention refusal to finan- Jeffers’s submit kilograms for 1.5 responsible over was Rather, cial court information. the deter- reject sentencing thus this con- crack. We capable paying mined was that Jeffers tention. fine, noting regular employment the his during conspiracy. the there is Because showing no that the court treated Jeffers’s Jeffers’s con We next address “negative actually refusal as evidence” and the that district erred tention deciding impose on mini- relied it in the $25,000 fine, because, a he as imposing $25,000, we mum fine of his conten- serts, fine was as retribution imposed the on point. tion this the exercise of his Fifth Amendment A against self-incrimination. sen right E. utilize a tencing court should not defen Finally, we turn to Jeffers’s contention Fifth dant’s invocation of the Amendment prosecution comply that the failed to negative penalize evidence to him at as Rule discovery obligations, its under both States, sentencing. See Mitchell v. United 1307, Rules of Criminal 314, 16 of the Federal Proce- 327, 119 S.Ct. 143 526 U.S. (1999). Maryland, Brady 424 to find dure 373 U.S. L.Ed.2d In order erred, however, 10 L.Ed.2d As so the record must 83 S.Ct. a court below, “actually explained although hardly ap- that the court relied” on we reflect discovery, defendant’s refusal to disclose informa prove handling of such imposing punishment. Blair v. tion reject this contention. nonetheless States, Cir. United
1981). 16(a)(1)(E) that, Rule mandates sentencing, lawyer repre-
At request, “[u]pon govern a that her defendant’s sented to district court client inspect ment the defendant to divulge permit intend to his financial as- must did not stances, certain copy photograph” speci- unable to conclude that the out- that, materials. claims in re- fied Jeffers Jeffers’s trial have come of would been prose- to his Rule 16 sponse request, had prosecutors prop- different acted prepared “containing a cution binder result, erly. provide As we are unable regarding all information the numerous any relief this claim. buys that make the heart of up
controlled
Government’s
this case.”
Appellant
prosecution,
Br.
54. The
Finally,
Jeffers asserts
his
however,
provide
copy
refused to
of the
convictions must be vacated
because
lawyers,
binder’s contents to Jeffers’s
not- prosecution also failed to fulfill its discov
Instead,
withstanding repeated requests.
ery obligations under
Brady. On
sec
merely
to have
allowed
case-in-chief,
day
prosecution’s
ond
of the
and,
lawyers inspect the
contents
binder’s
Giles,
informant,
a confidential
testified
then,
lawyers
even
had
conduct
multiple
drug buys
about
controlled
inspection in
their
the United States At-
Motel,
pur
Shriver’s
said that he
torney’s
prosecution
office. The
main-
drugs
chased
also
Jeffers. Giles
re
tains, in response,
an “open
it had
that, following
vealed
buy,
each controlled
*15
policy
file”
with
Rule
respect
to
but
by
he
debriefed
police
was
the
and that
recognition of the
nature of
“[i]n
sensitive
those conversations were
Dur
recorded.
documents,”
many of these
would not al-
ing
testimony,
Giles’s
one of
law
Jeffers’s
copied.
low all documents
Br.
to be
of
yers advised the court that she had not
Appellee
prosecu-
the
According to
any
been
with
in
provided
tapes
such
dis
tion,
method,
it
“case-by-case”
utilized a
requested
and
covery,
they
provid
be
which it
willing
under
was
consider Jef-
to
evening,
ed to the defense. That
the
request
copy
to
specific
fers’s
documents.
prosecution produced thirty-six
tape
such
Id.
recordings that
lawyers
Jeffers’s
were al
simply,
prosecution
Put
the
failed to
hear,
only
lowed to
but
in
presence
the
of
comply
obligations
its
under Rule 16.
prosecutors.
listening
the
After
mandatory
The Rule’s
language is unam-
tapes,
lawyers
the defense
decided that
the
biguous;
prosecution
permit
“must
the
tapes
exculpatory
impeach
the
were
and
inspect
copy.”
defendant
to
and to
Fed.
ing, in that Jeffers was never mentioned
16(a)(1)(A)
added).
(emphasis
R.Crim.P.
them,
in
of
any
by
description.
name or
comply
Such failure to
with Rule 16 was
day,
The next
lawyers sought
unwarranted and inconsistent with the ob-
testimony, asserting
to strike Giles’s
ligations of the
Attorney.11
United States
prosecution
the
Nevertheless,
Brady
had
its
contravened
identify
Jeffers has failed to
by
prejudiced
obligations
disclosing
tapes
he was
not
the
by
prosecu-
how
tion’s failure to
comply
discovery
debriefings
with its
Giles’s
failed to refer to or
are,
obligations.
Jeffers,
We
circum-
these
incriminate
and
consti-
therefore
terest, therefore,
expect prosecutors
11. We
conform their
prosecution
to
in a criminal
responsibilities.
case,
to
conduct
their
As Justice
that it
is not
shall win a
but that
appropriately
many
Sutherland
observed
justice
may prosecute
shall be done.... He
years ago:
vigor—indeed,
with earnestness and
he
But,
may
do so.
should
while he
strike
Attorney
represen-
The United States
is
blows,
liberty
not
hard
he is not at
strike
ordinary party
tative
of an
to a
to
foul
contro-
versy,
sovereign
obligation
but of a
whose
ones.
States,
78, 88,
govern impartially
compelling
Berger
to
v. United
is as
as its
U.S.
all;
obligation
govern
to
and whose in-
S.Ct.
tion then
Two,
judgments
acquittal
Counts
jury,
for the
and the trial court and
played
Three,
Four,
Jeffers contends that he
agreed. Upon redirect examina-
is entitled
have his two convictions va-
Giles,
prosecution sought
tion of
cated,
prosecution
because the
failed to
memory by
three of
playing
Giles’s
refresh
timely
audiotapes.
disclose the
relief
Such
Giles
asked
for him. When
tapes
warranted,
maintains,
“[fin-
is
because
drugs
person
bought
he had
whether
resulted,
prejudice
only
curable
courtroom, he responded,
in the
from was
testify
being
Giles
allowed to
as to what
result,
J.A. 560. As
“He is not.”
amounted to
prejudicial
irrelevant
testimo-
acquittal
granted judgment
Jef-
ny about narcotics activities unrelated to
Three,
Two,
and Four of
fers on Counts
841(a)(1)
[Jeffers,]
Indictment,
prejudice
but incurable
re-
also
charged §
which
untimely
sulted from
distribution offenses.
the Government’s
briefing tapes.”
of the
Br. of
disclosure
Brady
to establish a
order
was one
final
Appellant
Giles
of the
violation,
obliged
Jeffers is
show that
prosecution,
witnesses called
(1) favor
evidence was
the non-disclosed
several of
the earlier
witnesses
(2)
him,
to his
that it was material
able
'
*16
coconspirators.
claimed to be Jeffers’s
(3)
defense,
prosecution pos
the
that,
if
Jeffers maintains
he had been
timely
it
to
it to
and failed
disclose
sessed
aware of
in a
exculpatory tapes
made
the
Stokes,
v.
States
261
Jeffers. See United
fashion,
timely
have
to
Cir.2001).
he could
used them
496, 502
Evidence
prosecution
other
witnesses.
impeach
if
either
will
deemed “favorable”
it is
be
Thus,
insists,
im
failure
Gov-
“[t]he
or if it can be used as
of the
exculpatory
v.
peachment evidence.
United States
produce
exculpatory
to
the
evi-
ernment
667, 676,
3375,
473
105
Bagley,
U.S.
S.Ct.
... constitutes reversible error be-
dence
481
Such
is
87 L.Ed.2d
evidence
timely production
...
the
of this
cause
as “material” if there
properly considered
would have affected the outcome
timely
is
that its
probability”
a “reasonable
prosecution responds
trial.”
of the
Id.
produced
would have
a different
disclosure
properly
it acted
three reasons.
A
id.
fers’s claim.
III. foregoing,
Pursuant
each of Jeffers’s contentions and affirm his
convictions and sentences.
AFFIRMED
NIEMEYER, Judge, concurring: Circuit
I add, concur in opinion. the court’s I
however, my objection continuing to our
application Collins, of United States v. (4th Cir.2005),
F.3d 304 which remains in-
consistent with well-established conspiracy
law, as defined 21 U.S.C. 846 and
governing Supreme decisions, Court such Shabani,
as United States v. 513 U.S.
13-14,
115 S.Ct.
J., dissenting). Our court should have this opportunity
seized to correct prob-
lem, although, I it will suspect, have to be Supreme Court and our court that
does so.