UNITED STATES of America, Plaintiff-Appellee, v. Donnie MONTGOMERY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Duane Carroll, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. James DeBerry, a/k/a Peanut, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kevin Jones, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Pitrie Coates, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Daniel Hill, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Dwayne Alonzo Holland, a/k/a Diddles, Defendant-Appellant.
Nos. 98-4688 to 98-4692, 98-4693 and 98-4816
United States Court of Appeals, Fourth Circuit
Argued Oct. 30, 2000. Decided July 17, 2001.
262 F.3d 233
AFFIRMED.
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WIDENER and Judge WILLIAMS joined.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case grows out of a federal task force‘s investigation of drug trafficking in a public housing project in Baltimore, Maryland. That project, the Westport Housing Project, contained an area known as Maisbury Court that operated as an open air drug market. The government alleged that from May 1992 until March 1997 Dwayne Holland and his organization, which included Donnie Montgomery, Daniel Hill, Pitrie Coates, Kevin Jones, James DeBerry, and Duane Carroll, joined in an extensive conspiracy to distributе heroin and crack cocaine, and committed various violent acts to further this conspiracy. After seven weeks of trial, a jury convicted all of these defendants of engaging in the five-year conspiracy and convicted some of them of other, related offenses. The defendants maintain that the investigation of their crimes, and the resulting indictments, trial, and sentences are awash in legal error. The district judge issued two comprehensive published opinions in which he carefully considered, and rejected, most of these contentions. See United States v. Holland, 59 F.Supp.2d 492 (D.Md.1998); United States v. Holland, 985 F.Supp. 587 (D.Md.1997).
I.
We first address the district court‘s asserted pretrial errors.
A.
Hill maintains that the district court erred in refusing to dismiss his indictment on double jeopardy or due process grounds.
This argument grows out of a federal grand jury‘s indictment of Hill in 1994 on two counts: (1) conspiracy to distribute crack between July 1994 and October 18, 1994, and (2) possession with intent to distribute crack on October 17, 1994, arising out of a seizure of 78 grams of crack from a storage locker rented by Hill. Plea negotiations led the federal prosecutor to contact state officials to determine whether they were interested in prosecuting Hill on these charges in state court. Ultimately, Hill, defense counsel, and the state and federal prosecutors agreed that Hill would plead guilty in state court to distribution of cocaine and a one-day—October 17, 1994—conspiracy to distribute cocaine. On February 2, 1995, Hill entered his plea to the state charges and fifteen days later the federal charges were dismissed.
B.
Coates maintains that the district court lacked jurisdiction over his case at the time his trial commenced on January 22, 1998.
Prior to trial, Coates, like Hill, moved to dismiss the indictment on double jeopardy grounds. When the district court denied this motion, Coates, again like Hill, took an interlocutory appeal to this court pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The government moved the district court to retain jurisdiction over both cases and proceed to trial during the interlocutory appeals, arguing that they were frivolous. The district court granted that motion as to Hill, but refused to find Coates‘s appeal frivolous and so denied the government‘s motion to retain jurisdiction over Coates‘s case. On January 6, 1998, however, we sua sponte issued an opinion and order dismissing both Hill‘s and Coates‘s interlocutory appeals as frivolous. See J.A. 245 (“we dismiss Coates‘s double jeopardy claim as frivolous.“). Coates did not file a timely petition for rehearing or rehearing en banc; nor did he move to stay our mandate or seek certiorari in the Supreme Court.
On the day trial was to begin, January 21, 1998, a week prior to the January 28, 1998 issuance of our mandate, Coates moved to sever his case arguing that absent our mandate, the district court lacked jurisdiction. The district court denied the motion and proceeded to try Coates and his co-conspirators on January 22, 1998, on the erroneous theory that our order and opinion constituted a mandate.
Before us, Coates does not pursue his original double jeopardy claim but insists that the district court‘s failure to await our mandate left the district court devoid of jurisdiction over him. Ordinarily, an appeal “confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. A district court does not regain jurisdiction until the issuance of the mandate by the clerk of the court of appeals.” United States v. Rodgers, 101 F.3d 247, 251 (2d Cir.1996) (citations and internal quotation marks omitted); see also Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.1977).
But this “divesture of jurisdiction rule is not based upon statutory provisions or the rules of civil or criminal procedure. Instead, it is a judge-made rule originally devised in the context of civil appeals to
After all, the courts of appeals formulated the dual jurisdiction rule in direct response to the Supreme Court‘s recognition in Abney that the delay attendant to interlocutory double jeopardy appeals could “be obviated by rules or policies giving such appeals expedited treatment” and the Abney Court‘s observation that “[i]t is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.” 431 U.S. at 662 n. 8, 97 S.Ct. 2034. The Abney Court nowhere suggested that the district court, rather than the appellate court, had to make the finding as to the frivolousness of an interlocutory double jeopardy appeal in order for trial to begin during that appeal.
Moreover, the courts of appeals devised the procedure calling upon district courts to make the frivolousness finding prior to proceeding to trial not as a wаy to delay trial during frivolous Abney appeals, but as a means to facilitate trial during such appeals. If we adopted Coates‘s argument and held that the district court lacked jurisdiction to try him absent the district court‘s finding that his interlocutory appeal was frivolous, even though we had found the appeal frivolous and Coates had failed to seek reversal of that finding, we would sanction delay of trial during the pendency of a frivolous appeal. Thus to enforce the dual jurisdiction rule as Coates suggests would turn that rule on its head.
Furthermore, in the case factually closest to the one at hand, the Second Circuit has held as we do. See Salerno, 868 F.2d at 540. There, after the appellate court issued an order rejecting the Abney appeal, but before its mandate issued, the district court proceeded to trial. Even though the appellate court‘s mandate did not issue until the day before the lengthy trial ended, the Second Circuit ruled that the district court had jurisdiction to proceed without the mandate because the “likelihood” of “the meritless nature of the appeal” had “hardened into a certitude” with issuance of the appellate court‘s order. Id. Precisely the same rationale ap-
II.
The defendants also raise numerous claims that reversible error infected their trial.
A.
Only Montgomery and Carroll contend that the government failed to produce sufficient evidence to prove that they engaged in the charged five-year conspiracy. We examine the evidence in the light most favorable to the government and determine whether, so viewed, it “could support any rational determination of guilt beyond a reasonable doubt.” United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).
Montgomery and Carroll maintain that the government presented far more evidence linking the other defendants to the conspiracy than it offered as to them and that the jury could have concluded from some of the government‘s evidence that they were not part of the cоnspiracy. Neither of these arguments compels reversal.
evidence of Montgomery and Carroll‘s involvement in the conspiracy was thus sufficient.
B.
Holland and Hill lodge several attacks involving Counts 7 and 8 of the indictment, which alleged distribution of crack cocaine “within one thousand feet of real property comprising a playground and the Westport Elementary School” in violation of
First, they argue that the district court‘s instructions to the jury on these counts constructively amended the indictment, because although the indictment charged cocaine distribution “within one thousand feet of real property comprising a playground and the Westport Elementary School,” the district court instructed the jury in the disjunctive, stating that “the government must prove” that the distribution “occurred within 1000 feet of the real property comprising an elementary school or a playground.” (Emphasis added). Holland and Hill maintain that because of the indictment‘s conjunctive structure the jury was required to find them guilty of distribution within 1,000 feet of a “particular piece of real property comprising both a playground and the elementary school.” (Emphasis added).
The challenges involving Counts 7 and 8, therefore, fail.
C.
DeBerry maintains that the district court erred in excluding certain housing administration documents, and in refusing to permit his former girlfriend, Tanika Randall, to testify. DeBerry sought to introduce this evidence to impeach the testimony of government witnesses that he had received drugs at the Maisbury Court house in late 1992.
At the conclusion of the government‘s case, DeBerry sought to have Randall testify, proffering that she would testify about her relationship with DeBerry and their place of residence in 1992. Other defendants also sought to have various witnesses testify. The district court refused to permit Randall and several other defense witnesses to testify because those witnesses had attended the trial during the previous weeks in violation of the court‘s sequestration order. The district court explained that the sequestration order was
[A] sensible reasonable requirement that all of counsel are fully aware of. . . . [I]f you have anybody who you want to put on the stand, then you cannot let them come to the trial. It couldn‘t be more simple than that.
J.A. 1731. The court recognized that in the proper circumstances it might permit testimony of a witnesses that breached the sequestration order and in fact had done that once during the trial. See J.A. 1730 (“I realize I breached the rule for the government on that one occasion, but it‘s not a situation where it‘s a tit-for-tat situation. Each situation is considered on its merits.“).
Admittedly, Your Honor, she did appear in the courtroom periodically, but her testimony is in no way saying that—she‘s not going to be talking about Lambert or Corbin [government witnesses] or any of these other people. All she is going to be talking about is evidence that has not been introduced during the course of this trial, evidence basically about her relationship with him, where they lived, that he went to work, that kind of testimony. So, in other words, it is not the normal kind of testimony that is involved in a sequestration rule.
. . . . I know the Court said, well, just because we let that agent testify, that doesn‘t mean we are opening the door or that we are going to change the rule. I thought it was more egregious to have allowed that agent to have testified than to allow Ms. Randall to testify.
We detail the background for the exclusion of Randall‘s testimony beсause of an unusual problem that has surfaced on appeal—neither we nor the parties have been able to find the sequestration order in the record. If the district court had never issued a sequestration order but nonetheless sought to impose violation of such an order as a basis for exclusion of defense witnesses near the conclusion of a seven-week trial, we would be deeply troubled. But during the trial, the court and the parties referred to the sequestration order and acted and argued in reliance of it. At no time during the lengthy trial did anyone—DeBerry‘s counsel, other defense counsel, or the prosecutors—ever suggest that the district court had not issued a sequestration order. DeBerry‘s entire argument was that the court should not exclude Randall‘s testimony even though Randall had violated the sequestration order. Similarly on appeal, although DeBerry does point out that he has been “unable to locate in the record or docket the entry of a sequestration order,” he does not contend that suсh an order does not exist. In view of the repeated references to a controlling sequestration order at trial and DeBerry‘s counsel‘s acknowledgment of and attempt to explain noncompliance with that sequestration order, and the total failure of any party at trial—or even on appeal—to contend that the district court did not issue such an order, we can only conclude that the court did impose such an order, albeit perhaps orally in chambers. While this may not be the best practice, the district court‘s conduct does not constitute reversible error.
D.
In addition to the testimony of more than thirty witnesses, the government sought to prove its case with the tape recordings of the defendants discussing drugs. To counter the defendants’ claim that the identification of defendants’ voices on the tapes by cooрerating government witnesses was unreliable, the government sought mid-trial to obtain voice exemplars of Holland, Jones, and Hill. Those defen-
Furthermore, even if Jones‘s testimony did prevent Holland from exercising a “specific trial right,” Holland must also demonstrate that denial of this right prejudiced him in order to obtain a severance. Id. The district court determined that it did not prejudice Holland because although Jones and Holland presented “divergent” defenses, these defenses were “not mutually antagonistic.” Holland, 59 F.Supp.2d at 521. The court explained:
Although Jones admitted to having a recorded conversation with Holland about drugs, his testimony did not establish that Holland was, in fact, the drug dealer that the government alleged. The jury could have believed that Jones was involved with drugs without also necessarily believing that Holland was the leader of the drug distribution organization in Westport as alleged in the indictment.
Id. Our review of the record reveals no abuse of discretion in this ruling.
E.
1.
Holland‘s principal claim arises from charges lodged against him in July 1993 in state court for the murder of Antonio Woodson. State authorities nol prossed those charges in November 1993. Holland maintains that the nol prossed 1993 charges render October 1994 taped state-
Holland maintains that his invocation of his Sixth Amendment right to counsel when charged in state court in 1993 precluded federal authorities, or their agents, from obtaining information from him absent counsel a year after the state charges were nol prossed.
The Supreme Court has clearly instructed that the Sixth Amendment right to counsel “does not attach until a prosecution is commenced, that is, at or after initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks omitted). See also Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). Moreover, because it is “offense specific,” this right “cannot be invoked once for all future prosecutions.” McNeil, 501 U.S. at 175, 111 S.Ct. 2204. Federal authorities did not initiate a criminal proceeding against Holland for the murder of Antonio Woodson until September 1997, almost three years after his October 1994 taped conversation with a federal informant. Thus, Holland‘s right to counsel in defending against this federal charge had not yet attached at the time of the October 1994 conversation.
Nevertheless, Holland maintains that the right to counsel that attached upon filing of the state murder charges survived nol pros of that charge and prevented federal agents from questioning him about the murder without counsel. Relying on the fact that under Maryland law a “nolle prosequi is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense,” Ward v. State, 290 Md. 76, 427 A.2d 1008, 1013 (1981), Holland maintains that since he “still faced jeopardy” after the nol prossed state murder charge, his Sixth Amendment right to counsel has never “extinguish[ed],” and so the 1994 taped statements were inadmissible at his trial on the federal murder charge.
We note that most courts to consider the question have refused to hold that “once a defendant has been charged,” even after those charges are dismissed, the police and their agents are barred from questioning him “about the subject matter of those charges unless his counsel is present.” United States v. Mapp, 170 F.3d 328, 334 (2d Cir.1999) (internal quotation marks omitted); see also United States v. Bartelho, 129 F.3d 663, 674-75 (1st Cir.1997); United States v. Martinez, 972 F.2d 1100, 1104-05 (9th Cir.1992); United States v. Skipworth, 697 F.2d 281, 284 (10th Cir.1983); State v. Perry, 204 W.Va. 625, 515 S.E.2d 582, 592 (1999); People v. Riggs, 223 Mich.App. 662, 568 N.W.2d 101, 117 (1997). The three assertedly contrary cases that Holland cites grow out of very different facts; moreover, they either rely on pre-McNeil case law, see United States v. Valencia, 541 F.2d 618, 622 (6th Cir.1976), or involve the prosecution‘s dismissal of charges specifically to gather evidence to reindict, see Frye, 897 S.W.2d at 329-30, or both; see United States v. Marshank, 777 F.Supp. 1507, 1526 (N.D.Cal.1991). We do not find them persuasive. Rather, we hold that the Sixth Amendment does not provide an accused, once charged, with “blanket prohibition on interrogations on the subject matter” of those charges, even after the charges have been dismissed. Martinez, 972 F.2d at 1105.
Some of the courts that have similarly so held have nonetheless recognized that “the Sixth Amendment would be violated if state and federal authorities colluded to manipulate the timing of the dismissal and the filing of charges in a manner calculated to deprive an individual of his right to counsel.” Mapp, 170 F.3d at 334; see also Martinez, 972 F.2d at 1105-06; Perry, 515 S.E.2d at 592; Riggs, 568 N.W.2d at 116-17; see generally Bartelho, 129 F.3d at 675 (“Deliberate chicanery by the government intended to subvert an accused‘s Sixth Amendment rights, by delaying formal charges, may give rise to a right to counsel before charges are brought.“). Holland argues in the alternative that the substantial “cooperation” between the state and federal authorities in this case “is sufficient to require suppression” of the October 1994 statements under this “collusion exception.” We note that the Supreme Court‘s recent refusal to find any exception to the Sixth Amendment offense-specific rule for crimes “factually related” to the charged offense, Cobb, 121 S.Ct. at 1340, at the very least calls into question the viability of any “collusion exception” to the offense-specific rule. In any event, Holland has utterly failed to establish the deliberate misconduct necessary to sustain such a “collusion exception.” Indeed, the district court specifically found that “there was no collusion between the federal and state authorities in an effort to circumvent Holland‘s Sixth Amendment right to counsel.” Holland, 59 F.Supp.2d at 504. The record evidence amply supports this finding.
2.
Holland‘s remaining Massiah claim involves a statement he made to law enforcement officers on October 24, 1996.
On February 8, 1996, following execution of a search warrant in which 83 small bags of crack cocaine were found in the Maisbury Court house, the Baltimore City po-
Prior to trial in the instant case, Holland and Montgomery moved to suppress their October 24, 1996 statements. In response, the government stated that:
After a review of the applicable law cited by both Defendants, the government finds that when both Defendants were questioned by state and federal agents on October 24, 1996, the Defendants’ Sixth Amendment right to counsel had already attached as a result of their arraignment on the same charges in the state judicial system.
Holland, 59 F.Supp.2d at 501 n. 6. Accordingly, the government told the court that it would not oppose the suppression motion and that “an evidentiary hearing on this matter will not be necessary.” Id. at 501-02 n. 6. Thus, the district court never admitted Holland‘s October 24, 1996 statements into evidence at trial.
Holland contends that exclusion of his statement was not enough. He maintains that a good deal of other evidence was “fairly traceable” to the October 24, 1996 statement and the district court erred in admitting that evidence. The government does not contest the application of the exclusionary rule to the Sixth Amendment violations. It maintains, however, that the other evidence is “sufficiently distinguishable.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), from the October 24, 1996 statement, to be admissible. Spеcifically, the government argues, inter alia, that the challenged evidence was derived from a source independent from the October 24, 1996 statement, and thus was admissible under Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
III.
A.
DeBerry challenges several of the district court‘s factual findings regarding his base offense level. The jury convicted DeBerry only on the conspiracy count. The district court found that DeBerry participated in the conspiracy to distribute drugs as part of the Holland organization from February 1994 through February 1996. Holland, 59 F.Supp.2d at 523. The court, thus, attributed to DeBerry the heroin and crack quantities distributed after February 27, 1994, as within the “scope of DeBerry‘s agreement and foreseeable to him.” Id. These quantities established DeBerry‘s base offense level at 38.
DeBerry first maintains that the government produced insufficient evidence to prove that he began his participation in the conspiracy as early as February 27, 1994. Our review of the record reveals abundant evidence from numerous witnesses—including Lambert, Jones, Corbin, and Gilliam—that DeBerry began his participation in the consрiracy by February 27, 1994. The district court did not err in so finding.
DeBerry also maintains that the district court erred in calculating the quantity of drugs attributable to him. He claims that the court could not rely on the “uncorroborated testimony” of various cooperating witnesses; that argument is meritless. See, e.g., J.A. 508-04, 512, 756-53. The district court painstakingly reviewed the evidence to determine the appropriate drug quantity attributable to DeBerry and each of his co-conspirators. See Holland, 59 F.Supp.2d at 524-530. We find no reversible error in these calculations.
B.
Holland and Jones contend that their sentences should not have been enhanced because of Woodson‘s murder.
As he did before the trial court, Holland insists that (1) the clear and convincing standard applies, and (2) under any standard the government produced insufficient evidence that (a) he fired the shot that
C.
Holland also maintains that the “law of the case” requires that his base offense level be Level 34.
Prior to trial, the government stipulated as part of the plea agreement with one of Holland‘s conspirators, Melvin Corbin, that Corbin “knew or could have reasonably foreseen” that the equivalent of at least three but less than ten kilograms of heroin were involved in the charged conspiracy, yielding a base offense level of 34; the district court accepted the stipulation and sentenced Corbin basеd upon it. Holland contends that
D.
Finally, some of the defendants argue that the terms of their sentences run afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
While this case was on appeal, the Supreme Court decided Apprendi, in which it announced a new rule of constitutional law. In Apprendi, the Court upheld a challenge to a hate-crime statute that included a sentence enhancement that the trial judge could apply upon finding by a preponderance of the evidence that the defendant‘s crime was motivated by racial animosity. The Supreme Court struck down the provision as unconstitutional, holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Although Apprendi involved a trial judge‘s application of a hate-crime sentence enhancement, federal appellate courts have uniformly applied its rule to
Because they failed to raise their Apprendi argument before the district court, we review for plain error only. See
Just as in Stewart, the district court in this case committed plain error under Apprendi. However, the evidence that Holland, Hill, Jones, and DeBerry conspired to traffic in more than 50 grams of crack cocaine and more than 1 kilogram of heroin is similarly uncontested and even more “overwhelming” than it was in Stewart.10 For example, the trial court heard testimony from a former “lookout” that the drug operation sold more than 300 bags of crack cocaine per day, which the court found amounted to approximately 49 grams of crack cocaine sold per day in a conspiracy spanning several years. Holland, 59 F.Supp.2d at 525 & n. 35. In addition, there was testimony that the organization sold approximately 250 bags of heroin per day from the Fall of 1992 to the Fall of 1995. Thus, the district court found that the operation sold more than 30 kilograms of herоin during that time. Id. at 527. Another former “lookout” and dealer testified that he personally sold approximately 50-60 bags of heroin per day and at times witnessed each defendant “cut” large quantities of heroin in preparation for sale. Still another witness testified that she twice accompanied Holland to New York to purchase an estimated 30 to 50 grams of raw heroin each time. The government also introduced audiotape excerpts that captured Holland and Jones discussing trips to New York to purchase drugs. Several witnesses testified that they bought heroin from at least one of the defendants on several occasions. Moreover, government seized more than 6 grams of crack and another 3.5 grams of heroin. The government seized at least 30 grams of heroin in total.
IV.
Accordingly, for the reasons set forth within, we affirm the judgment of the district court in all respects.
AFFIRMED.
DIANA GRIBBON MOTZ
UNITED STATES CIRCUIT JUDGE