Unpublished United States Court of Appeals For The Fourth Circuit
Unpublished United States Court of Appeals For The Fourth Circuit
Unpublished United States Court of Appeals For The Fourth Circuit
No. 95-5526
No. 95-5527
WILLIE WALLS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD EUGENE SMITH,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-93-17-V)
Submitted: April 7, 1998
Decided: May 7, 1998
Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
No. 97-4256
Ramsey replied that suspects are generally not indicted unless their
involvement is corroborated. Ramsey then went on to elaborate
regarding the type of investigative methods used to gather corroborative evidence. The defense objected to the line of questioning, and the
district court overruled the objection.
It is error for the government to vouch for the credibility of its witnesses, either through the prosecutor or through a government witness
who testifies as to the trustworthiness of other witnesses. See United
States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993) (citations omitted). It is not improper bolstering for the Government to explain its
investigative procedures or its relationship with the witnesses. See id.
In the instant case, there was no bolstering or vouching. The Government neither gave personal assurances that its witnesses were trustworthy nor stated that information not presented to the jury supported
the witnesses' testimony. The Government merely elicited testimony
from Agent Ramsey as to the methods of corroboration of information
leading to an indictment. Thus, the district court did not err in allowing the testimony.
II
Defendant Smith next alleges that the district court erred by refusing to instruct the jury that possession of cocaine base was a lesser
included offense of the conspiracy to possess cocaine base with the
intent to distribute charge. Smith argues that he was entitled to the
lesser included offense instruction because both the Government and
his defense counsel put on evidence to show that Smith was an abuser
of cocaine base. While there was evidence that Smith used drugs, the
Government also put on substantial evidence demonstrating that
Smith also sold cocaine and paid others to sell it for him. Regardless,
Smith was not entitled to an instruction on the lesser included offense
of simple possession of cocaine base.
A criminal offense includes a lesser offense where"the elements
of the lesser offense are a subset of the elements of the charged
offense." Schmuck v. United States, 489 U.S. 705, 716 (1989).
Because possession is not a necessary element of the conspiracy
charge, Smith was not entitled to an instruction on simple possession.
See 21 U.S.C. 846 (1994); United States v. Horn, 946 F.2d 738, 744
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IV
The Defendants argue that in three instances the Government failed
to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83,
87 (1963), and their due process rights. First they argue that the Government failed to disclose notes from a September 25, 1992, interview
between Investigator Craven of the North Carolina State Bureau of
Investigation and Elliot Phifer, a co-conspirator of the Defendants,
until the Government discovered the notes during trial and showed
them to defense counsel. Next the Defendants allege that the Government failed to disclose information regarding four interviews between
Agent Ramsey and Michael Armstrong that occurred on July 13, 14,
15, 1992, and December 9, 1992. Finally, the Defendants allege that
the Government violated their rights by losing a tape recorded conversation between Phillips and Armstrong.
The Defendants did not object at trial to the testimony of Phifer or
Ramsey regarding the interviews. Therefore, their challenge to the
admission of this testimony is reviewed for plain error. See Fed. R.
Crim. P. 52; United States v. Olano, 507 U.S. 725, 732-34 (1993).
First, the record reflects that the information regarding the September
1992 interview between Craven and Phifer was in the Government's
open file, a file which was available for the Defendants' review and
access. The material the prosecutor first produced at trial was rough
notes regarding the interview.* The full report of the interview was
in the file.
The transcript reflects that a summary of the Armstrong interviews
was also in the open file. Again, only Agent Ramsey's rough notes
of each interview were not in the file. The prosecutor clarified which
notes Agent Ramsey had and offered them to defense counsel.
Defense counsel said that he was satisfied with the material he had
and was able to cross-examine the witness.
_________________________________________________________________
*During the trial the prosecutor first said that he had not disclosed the
notes to defense counsel because he thought they were the rough notes,
but they were not, they were the full interview report. (JA 144-45). Later,
the prosecutor again examined the document and decided that they were
indeed the rough notes as he originally thought. (JA 147).
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The Defendants allege that if they had been made aware of the
rough notes earlier they might have been able to"hone" their crossexamination because they allege the statements were vague and contradictory. However, the open file contained all of the final reports of
the interviews to which the Defendants were entitled. Accordingly,
we find that there was not a violation of the Defendants' rights under
Brady or the Due Process Clause. Cf. United States v. Hinton, 719
F.2d 711, 721-22 (4th Cir. 1983) (holding that an agent's rough notes
of an interview need not be produced under the Jencks Act, 18 U.S.C.
3500 (1994)).
Finally, the Defendants allege that the failure to preserve and produce the tape recording between Phillips and Armstrong at the Nash
County Courthouse on February 26, 1992, violated the Due Process
Clause. Agent Ramsey testified that the recording had been lost. The
Defendants allege that on the tape recording during his conversation
with Armstrong, Phillips denied that he sold crack.
The failure to preserve potentially useful evidence is only a denial
of due process if the defendant shows bad faith on the part of the
police. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). A defendant's due process rights are not violated when evidence is inadvertently lost. See United States v. Sanders, 954 F.2d 227, 231 (4th Cir.
1992). The Defendants allege that because the Government was able
to locate a tape recording between Armstrong and Phillips that implicated Phillips, yet could not find the recording that allegedly exculpated Phillips, the loss involved more than inadvertence or
negligence, and the failure to preserve evidence of this type necessarily amounts to bad faith.
The Defendants, however, do not demonstrate anything more than
inadvertence. In addition, the Defendants do not demonstrate that
even assuming the tape recording existed, in light of the overwhelming evidence of their guilt, a reasonable probability existed that the
tape recording would have changed the result of the trial. See United
States v. Bagley, 473 U.S. 667, 682-83 (1985). We therefore find that
this claim is without merit.
V
All three Defendants allege that the district court erred in its finding of the amount of cocaine base reasonably foreseeable to them. In
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a drug offense, the defendant is accountable for all quantities of contraband with which he was directly involved, and in the case of a
jointly undertaken criminal activity, all quantities of contraband foreseeable to him within the scope of the criminal activity in which he
jointly participated. See U.S. Sentencing Guidelines Manual, 1B1.3,
comment. (n.2) (1997); United States v. Gilliam , 987 F.2d 1009,
1012-13 (4th Cir. 1993). Proof of the quantity of cocaine reasonably
foreseeable to the defendant must be established by a preponderance
of the evidence. See United States v. McManus , 23 F.3d 878, 885 (4th
Cir. 1994). This court reviews the district court's foreseeability finding under the clearly erroneous standard. See United States v. Banks,
10 F.3d 1044, 1058 (4th Cir. 1993).
The defense's attack on the amount of cocaine base reasonably
foreseeable to Smith, Walls, and Phillips is based on its contention
that the Government was "something less than honest[ ]" in attributing the amount of cocaine reasonably foreseeable to co-conspirator
Michael Armstrong, because most of the cocaine in the conspiracy
came from Armstrong. The Defendants contend that because their
cocaine came from Armstrong, the court should not have attributed
more drugs to them than it attributed to Armstrong. However, Armstrong was given immunity for some of his conduct in exchange for
cooperating in the investigation. Moreover, disparity of sentencing
between co-conspirators is generally not an issue that may be raised
on appeal. See United States v. Goff, 907 F.2d 1441, 1447 (4th Cir.
1990) (collecting cases).
The Defendants also collectively argue that the district court erred
because it allegedly failed to make specific findings of fact with
respect to the amount attributable to each Defendant. The transcript
of the sentencing hearing reflects that the district court did make specific findings of fact with respect to each Defendant and that these
findings were supported by a preponderance of the evidence.
Smith argues that the amount attributed to him should be decreased
by the amount of drugs he obtained for his personal use. He relies
upon a Ninth Circuit case, United States v. Kipp , 10 F.3d 1463, 1465
(9th Cir. 1993), which states that drugs for personal use are not relevant to the crime of possession with intent to distribute because they
constitute a separate course of conduct not related to distribution.
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Phillips' house. He further testified that on at least two of these occasions he observed eight to ten ounces of cocaine base in his possession. Agent Ramsey testified that Phillips admitted to him that he had
done one two-ounce deal with Armstrong. Based upon this evidence,
we find that the district court did not clearly err in calculating the
amount of cocaine base reasonably foreseeable to Phillips.
VI
Finally, Smith argues that he should not have received an enhancement for being an organizer or leader in the conspiracy under USSG
3B1.1(c). The determination that a defendant is an organizer or
leader in an offense is essentially a factual question reviewable for
clear error. See United States v. Harriott, 976 F.2d 198, 202 (4th Cir.
1992).
Elliot Phifer, Kathy Walker, Harold Gabriel, and Michael Armstrong all testified that they were selling cocaine for Smith during the
conspiracy. Phifer and Armstrong both testified that Smith furnished
the money to purchase the cocaine. Considering this evidence, the district court properly concluded that Smith was an organizer or leader,
so the enhancement was proper. Smith also argues that because Armstrong did not receive an enhancement as an organizer or leader,
Smith should not have received an enhancement either. As discussed
above, this argument is without merit.
Because all of the Defendants' claims are meritless, we affirm their
convictions and sentences. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED
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