Lead Opinion
OPINION
Defendant Marc Anthony Jeffers was convicted in the Western District of Virginia of conspiring to distribute 50 grams or more of a mixture or substance containing cocaine base, in contravention of 21 U.S.C. § 846 (the “conspiracy offense”), and of using or carrying a firearm during and in relation to a drug trafficking crime, and of possessing a firearm in furtherance of that crime, in violation of 18 U.S.C. § 924(c)(1)(A) (the “firearm offense”). Jeffers appeals his convictions and sentence, and we have grouped his multiple appellate contentions (several of which were not preserved) as follows: (1) the district court deprived him of due process by conducting proceedings off the record; (2) the evidence fails to support his conviction on the firearm offense; (3) the jury instructions were erroneous in various respects; (4) the court committed two sentencing errors; and (5) the prosecution failed to comply with its discovery obligations. As explained below, we reject each of his contentions and affirm.
I.
A.
Jeffers’s convictions arise from his participation in an illegal drug enterprise, which operated out of an old motel in Luray, Virginia, that had been converted into apartments (“Shriver’s Motel”). After receiving information that cocaine base (“crack cocaine” or “crack”) and cocaine were being sold at Shriver’s Motel, the Luray Police and the Page County Sheriff investigated, conducting surveillance activities and making more than thirty controlled drug buys in the month of January 2002. The investigation revealed that large quantities of crack were being sold and distributed there. On February 2, 2002, the authorities executed search warrants at Shriver’s Motel and arrested four suspects in the illicit enterprise: Brian Carter, James Jackson, Shannon Johnson, and William “Bobby” Pettis. Jeffers was indicted over two years later, on June 16, 2004, and he was arrested on November 29, 2004.
On September 22, 2006, following a three-day jury trial, Jeffers was convicted on two of the five counts levied against him in a sixteen-count indictment (the “Indictment”).
In its case-in-chief and on rebuttal, the prosecution presented approximately sixteen witnesses. These witnesses included two local officers involved in the surveillance of Shriver’s Motel (Dwight Farmer and John Kibler); three federal officers involved in Jeffers’s arrest (Jeremy Hanaker, Brian Sheppard, and William Met-calf); two confidential informants (Jason Giles and Nathan Strickler); and seven cooperating coconspirators (Carter, Jackson, Johnson, Joby Chu, John Lewis, Lenotto Mewborn, and Adrian Wigington). In his defense, Jeffers called eight witnesses, who generally testified about his participation in work and social events in Washington, D.C.—about ninety miles from Luray—between August 1999 and February 2002, the timeframe of the conspiracy. Following the jury’s guilty verdiet, on September 29, 2006, Jeffers filed a motion for a new trial, as well as a motion for judgment of acquittal on the firearm offense.
Jeffers’s sentencing hearing was conducted in the district court on December 4, 2006, and William Good, the probation officer who had prepared Jeffers’s presentence investigation report (the “PSR”), testified. Relying on the trial evidence, Good provided the court with testimony that Jeffers was responsible for more than 1.5 kilograms of crack, and emphasized that his estimate was a “very conservative amount.” J.A. 891.
II.
Jeffers’s contentions on appeal are, for our analysis, grouped into five categories. First, Jeffers maintains that the district court deprived him of due process by conducting some of the trial proceedings off the record. Second, Jeffers contests the firearm offense conviction, asserting insufficiency of the evidence. Third, he challenges the jury instructions on multiple grounds. Fourth, Jeffers contends that the court committed two sentencing errors. Finally, he asserts that the prosecution engaged in misconduct related to its discovery obligations. We assess and dispose of these contentions in turn.
A.
We first address Jeffers’s assertion that he “has been prejudiced and deprived of his constitutional rights to due process” because certain proceedings in the district court were not transcribed by a court reporter. Br. of Appellant 30. In particular, Jeffers contends that the conduct of the charge conference “off the record” denied him a verbatim account of his lawyers’ objections to the jury instructions.
It is clear that “a criminal defendant has a right to a meaningful appeal based on a complete transcript.” Brown,
Pertinent to this issue, the Seventh Circuit has explained that the Court Reporter Act “does not require the conference on jury instructions to be held in open court.” United States v. Murphy,
In this situation, there is no indication that Jeffers’s lawyers were unable to object to the instructions in a timely fashion. Indeed, on the final day of trial, defense
B.
We next address Jeffers’s contention that the trial evidence was insufficient to convict him on the firearm offense. In assessing a challenge to the sufficiency of evidence, we view the evidence in the light most favorable to the prosecution and decide whether “substantial evidence” supports the verdict. United States v. Smith,
Count Fourteen charged that Jeffers “did use or carry a firearm during and in relation to a drug trafficking crime, and did possess a firearm in furtherance of a drug trafficking crime,” specifically, the conspiracy offense in Count One. J.A. 19. In order to convict Jeffers on Count Fourteen, the prosecution was obliged to prove beyond a reasonable doubt that Jeffers (1) used, carried, or possessed a firearm (2) in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). We have defined the phrase “in furtherance of’ as “[t]he act of furthering, advancing, or helping forward”; thus, “§ 924(c) requires the government to present evidence indicating that the possession of a firearm furthered, advanced, or helped forward a drug trafficking crime.” United States v. Lomax,
At trial, the evidence linked Jeffers to multiple firearms during the course of the conspiracy offense. Chu testified that he had supplied firearms to members of the conspiracy, including a MAC-11 machine gun and a 9 mm pistol to Jeffers. Wigington and Mewborn each testified that Jeffers had carried a firearm to prevent being robbed. Wigington stated that Jeffers indicated that, “if somebody was trying to rob him, he would shoot them.” J.A. 89. Mewborn testified that Jeffers suggested that he kept firearms to guard against would-be robbers, and had, at least once, bragged about shooting someone. Jeffers also made it known to his coconspirators that he possessed numerous firearms, apparently to prevent robberies. Mewborn
Assessed in the light most favorable to the prosecution, there was substantial evidence that Jeffers used, carried, or possessed a firearm in furtherance of the conspiracy offense charged in Count One. A reasonable trier of fact was entitled to find Jeffers guilty of the firearm offense, and we reject this aspect of Jeffers’s appeal.
C.
Next, we assess Jeffers’s contention that the trial court erred in multiple respects in its instructions to the jury. First, Jeffers presents two challenges with respect to the instructions on the firearm offense, and we readily reject them.
A trial court’s jury instructions are reviewed for abuse of discretion. See United States v. Singh,
1.
Jeffers maintains that—based on the evidence—the district court should have given the jury a multiple-conspiracy, as opposed to a single-conspiracy, instruction on Count One. More specifically, Jeffers claims that with a single conspiracy charged in Count One, and only multiple conspiracies shown by the trial evidence, the instructions created a prejudicial variance. Jeffers concedes, however, that he did not present this contention to the trial court, and that it is subject to plain error review only. To show plain error, Jeffers must identify an error that is plain and that substantially affects his rights. See United States v. Olano,
We have heretofore explained that “[a] single conspiracy exists, when the conspiracy had the same objective, it had the same goal, the same nature, the same geographic spread, the same results, and the same product.” United States v. Johnson,
The trial evidence overwhelmingly proved the existence of a crack cocaine distribution conspiracy operating out of Shriver’s Motel and showed Jeffers’s substantial role in it. Jackson, Carter, and Giles recalled sales of crack cocaine that occurred around the clock at Shriver’s Motel. Wigington, Mewborn, and Johnson described Jeffers as the “biggest” dealer at Shriver’s Motel, and Carter said that Jeffers was one of the top three drug dealers operating there. The jury also heard testimony that Jeffers had recruited others to sell crack. Johnson testified that Jeffers sold the highest quality crack, that he gave the best value for the money, and that there were times when other drug dealers at Shriver’s Motel depended on Jeffers to supply them with drugs. Following his arrest, Jeffers bragged to Lewis that if Lewis sold cocaine in northwest Washington or northern Virginia, it was probably Jeffers’s product.
Several witnesses provided corroborating testimony about Jeffers’s identity and his involvement in the conspiracy. Arrington, Mewborn, Carter, Johnson, and Giles knew Jeffers by the same nickname, “Face.” Witnesses confirmed that Jeffers drove one or more Cadillac automobiles during the conspiracy, and others stated that he was known to ride a distinctive motorcycle. Jackson observed Jeffers take paper bags of drugs from under his motorcycle seat more than five times. Wigington, Jackson, and Newborn testified that Jeffers “cooked” cocaine into crack, and Wigington testified that Jeffers taught him how to cook crack. Other witnesses confirmed that Jeffers routinely “fronted” crack to other dealers, resulting in debts being owed to him. Wigington, Jackson, and Johnson made trips to Washington, D.C., with Jeffers to get drugs. Jeffers, in addition to residing at Shriver’s Motel, sometimes stayed at a local residence in Luray, which had been rented by Pettis, another dealer at Shriver’s. At that resi
On the evidence, the district court thus did not err in instructing the jury on the single-conspiracy alleged in Count One. The fact that Jeffers may have competed with some of his coconspirators did not defeat the prosecution’s theory that they were all members of a single conspiracy. Additionally, the evidence showed that the multiple drug dealers at Shriver’s Motel engaged in “a consistent series of smaller transactions,” which comprised a single conspiracy. See United States v. Banks,
2.
Jeffers next contends that the district court erroneously instructed the jury that it was entitled to infer consciousness of guilt if it found that Jeffers had sought to conceal his identity after learning of the Indictment. In this respect, Jeffers asserts that the court’s concealment instruction was not adequately supported by the evidence. Again, however, Jeffers also failed to object to the concealment instruction, and we review this contention for plain error only.
We have recognized that, “in appropriate circumstances, a consciousness of guilt may be deduced from evidence of flight and that a jury’s finding of guilt may be supported by consciousness of guilt.” United States v. Obi,
At trial, the prosecution presented evidence that Jeffers had concealed himself from the authorities following the unsealing of the Indictment on September 16, 2004:
• A deputy U.S. Marshal testified that when Jeffers was arrested, he was riding in a car and misled the arresting officers as to his true identity. Jeffers presented the Marshal with a credit card bearing the name “Anthony Jones,” and maintained that he was Anthony Jones for one or two minutes before acknowledging his true identity.
• Jeffers’s mother stated that she had “stopped seeing him in the way that” she used to after federal agents cameto her home looking for Jeffers in November 2004. J.A. 614.
• Jeffers’s neighbor admitted not seeing Jeffers “[f]or the past year and a half or two years,” dating back to the unsealing of the Indictment. J.A. 624.
• Jeffers maintains that this evidence was inadequate to support a concealment finding, and that the court’s concealment instruction constitutes reversible error.
On this record, however, sufficient evidence existed to support a jury finding that Jeffers sought to conceal himself after he was indicted, that his efforts at concealment resulted from his consciousness of guilt, and that such consciousness of guilt related to the crimes with which he was charged. We thus reject Jeffers’s contention that the trial court’s instruction on concealment was plainly erroneous.
3.
Next, Jeffers maintains that, with respect to the conspiracy offense, the trial court failed to instruct the jury that it had to determine the quantity of cocaine base attributable to him. This error, he asserts, requires that his sentence on the conspiracy offense be vacated.
In United States v. Collins, in 2005, we held that, in order to properly apply the sentencing provisions of § 841(b)(1) in a § 846 drug conspiracy prosecution, the jury must determine that the threshold drug quantity was reasonably foreseeable to the defendant. See
In order to obtain relief under plain error review, Jeffers must show that an error occurred, that the error was plain, and that it affected his substantial rights. See Olano,
In this situation, the trial court’s instructions on the Count One conspiracy offense constituted plain error. See Foster,
D.
We next assess Jeffers’s contentions of sentencing error. First, Jeffers asserts that the court erred in attributing 1.5 kilograms of cocaine base to him for sentencing purposes. Second, he maintains that the court contravened his Fifth Amendment rights in imposing a $25,000 fine. As explained below, we reject these contentions as well.
1.
A sentencing court is obliged to make factual determinations by a preponderance of the evidence. See United States v. Brika,
Put simply, the district court did not clearly err in finding Jeffers responsible for more than 1.5 kilograms of crack. At trial, multiple witnesses testified about Jeffers’s drug distribution business in the Luray area. Witnesses testified that the illicit drug operations at Shriver’s Motel were carried on around the clock, and Jeffers was described as the biggest dealer there. Wigington had dealt drugs with Jeffers from the late 1990s until 2002, when Shriver’s Motel was raided. Wigington could readily obtain “anywhere from four to five ounces, or maybe more” of crack cocaine from Jeffers, who would even then have a large supply of crack remaining. J.A. 74. Wigington “couldn’t even put a number to how many times” he bought cocaine from Jeffers. Id. at 77.
Because of the overwhelming evidence of the quantities of crack and powder cocaine that were bought from Jeffers and that he had possessed, the district court did not clearly err in finding that Jeffers was responsible for over 1.5 kilograms of crack. We thus reject this sentencing contention.
2.
We next address Jeffers’s contention that the district court erred in imposing a $25,000 fine, because, he asserts, the fine was imposed as retribution for the exercise of his Fifth Amendment right against self-incrimination. A sentencing court should not utilize a defendant’s invocation of the Fifth Amendment as negative evidence to penalize him at sentencing. See Mitchell v. United States, 526 U.S. 314, 327, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). In order to find that a court so erred, however, the record must reflect that the court “actually relied” on the defendant’s refusal to disclose information in imposing punishment. Blair v. United States,
At sentencing, Jeffers’s lawyer represented to the district court that her client did not intend to divulge his financial assets to the probation officer, for fear that doing so could incriminate him and thus hamper his chances for a successful appeal. In response, the court stated that “the inference should be drawn against Mr. Jeffers because of this in terms of sentencing.” J.A. 913. It then found “that the guidelines recommend to the Court a fine of 25,000 to four million dollars.” Id. at 915.
Notwithstanding the sentencing court’s statement that an inference should be drawn against Jeffers for his refusal to divulge financial information, the record does not show that the court actually relied on this fact in deciding to impose the fine. To the contrary, the court imposed the minimum fine called for by the Sentencing Guidelines. And when the court explained its decision on the fine, it did not mention Jeffers’s refusal to submit financial information. Rather, the court determined that Jeffers was capable of paying the fine, noting his regular employment during the conspiracy. Because there is no showing that the court treated Jeffers’s refusal as “negative evidence” and actually relied on it in deciding to impose the minimum fine of $25,000, we reject his contention on this point.
E.
Finally, we turn to Jeffers’s contention that the prosecution failed to comply with its discovery obligations, under both Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland,
1.
Rule 16(a)(1)(E) mandates that, “[u]pon a defendant’s request, the government must permit the defendant to inspect
Put simply, the prosecution failed to comply with its obligations under Rule 16. The Rule’s mandatory language is unambiguous; the prosecution “must permit the defendant to inspect and to copy.” Fed. R.Crim.P. 16(a)(1)(A) (emphasis added). Such a failure to comply with Rule 16 was unwarranted and inconsistent with the obligations of the United States Attorney.
2.
Finally, Jeffers asserts that his convictions must be vacated because the prosecution also failed to fulfill its discovery obligations under Brady. On the second day of the prosecution’s case-in-chief, Giles, a confidential informant, testified about multiple controlled drug buys at Shriver’s Motel, and said that he had purchased drugs from Jeffers. Giles also revealed that, following each controlled buy, he was debriefed by the police and that those conversations were recorded. During Giles’s testimony, one of Jeffers’s lawyers advised the court that she had not been provided with any such tapes in discovery, and requested that they be provided to the defense. That evening, the prosecution produced thirty-six such tape recordings that Jeffers’s lawyers were allowed to hear, but only in the presence of the prosecutors. After listening to the tapes, the defense lawyers decided that the tapes were exculpatory and impeaching, in that Jeffers was never mentioned in any of them, by name or description.
The next day, Jeffers’s lawyers sought to strike Giles’s testimony, asserting that the prosecution had contravened its Brady obligations by not disclosing that the tapes of Giles’s debriefings failed to refer to or incriminate Jeffers, and therefore consti
In order to establish a Brady violation, Jeffers is obliged to show that the non-disclosed evidence was (1) favorable to him, (2) that it was material to his defense, and (3) that the prosecution possessed it and failed to timely disclose it to Jeffers. See United States v. Stokes,
Notwithstanding the trial court’s award of judgments of acquittal on Counts Two, Three, and Four, Jeffers contends that he is entitled to have his two convictions vacated, because the prosecution failed to timely disclose the audiotapes. Such relief is warranted, he maintains, because “[fin-curable prejudice resulted, not only from Giles being allowed to testify as to what amounted to irrelevant prejudicial testimony about narcotics activities unrelated to [Jeffers,] but incurable prejudice also resulted from the Government’s untimely disclosure of the briefing tapes.” Br. of Appellant 53. Giles was one of the final witnesses called by the prosecution, and several of the earlier witnesses had claimed to ' be Jeffers’s coconspirators. Jeffers maintains that, if he had been made aware of the exculpatory tapes in a timely fashion, he could have used them to impeach other prosecution witnesses. Thus, he insists, “[t]he failure of the Government to produce the exculpatory evidence ... constitutes reversible error because ... the timely production of this evidence would have affected the outcome of the trial.” Id. The prosecution responds that it acted properly for three reasons. First, Jeffers received the tapes in time to use them at trial; second, the tapes were used at trial and played to the jury; and third, Jeffers was on notice that the tapes existed prior to trial. Thus, the prosecution argues, Jeffers “is not entitled to the benefit of the Brady doctrine.” Id. at 65.
In this situation, Jeffers is not entitled to relief under Brady because he is unable to show how the undisclosed evidence was either favorable or material with respect to the two counts of conviction. Regardless
III.
Pursuant to the foregoing, we reject each of Jeffers’s contentions and affirm his convictions and sentences.
AFFIRMED
Notes
. The Indictment charged Jeffers with five counts: Counts One, Two, Three, Four, and Fourteen. On September 21, 2006, the district court granted judgment of acquittal to Jeffers on Counts Two, Three, and Four.
. Citations herein to "J.A. -” refer to the contents of the Joint Appendix filed by the parties in this appeal.
. The district court also sentenced Jeffers to five years of supervised release to each of Counts One and Fourteen, to run concurrently-
. Pertinent to these proceedings, the lack of a complete record of the district court proceedings impacts our standard of review. Where there is no record of Jeffers’s objection to a particular jury instruction, we must review that instruction for plain error. In the face of a recorded objection to an instruction, however, our review is for harmless error. See United States v. Foster,
. Jeffers also identifies other trial proceedings and rulings that were not transcribed, but he fails to present any appellate challenges regarding those rulings. See Brown, 202 F.3d at 696 ("[T]o obtain a new trial ... the defendant must show that the transcript errors specifically prejudiced his ability to perfect an appeal.”).
. Jeffers also contends that the trial evidence on the firearm offense is distinguishable from our precedent concerning § 924(c) because "no guns or drugs were ever seized from Mr. Jeffers.” Br. of Appellant 36. We reject this contention because a firearm need not be seized to sustain a § 924(c) conviction. See United States v. Jones,
. With respect to the firearm offense, Jeffers asserts that the trial court failed to instruct the jury that unanimity was required as to the actual firearm that Jeffers had used, carried, or possessed in furtherance of the conspiracy offense. This contention is foreclosed, however, by our recent decision in United States v. Perry,
. Cocaine, sometimes also called powder cocaine, is the substance from which crack cocaine is made, and its possession and distribution was thus relevant to the conspiracy offense in Count One.
. Jeffers contends in his appellate brief that he preserved the error because he objected at sentencing. Because this objection was made in a tardy fashion, however, it was insufficient to preserve the Collins issue.
. Jeffers's rights were substantially affected by the Collins error because he was sentenced to 264 months imprisonment, 24 months greater than the maximum of 240 months that he could have received under § 841(b)(1)(C).
. We expect prosecutors to conform their conduct to their responsibilities. As Justice Sutherland appropriately observed many years ago:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.... He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
Berger v. United States,
Concurrence Opinion
concurring:
I concur in the court’s opinion. I add, however, my continuing objection to our application of United States v. Collins,