Professional Documents
Culture Documents
United States Court of Appeals: Unpublished
United States Court of Appeals: Unpublished
United States Court of Appeals: Unpublished
No. 00-4273
No. 00-4336
COUNSEL
ARGUED: G. Godwin Oyewole, Washington, D.C., for Appellant
Duffy; Marc Seguinot, LAW OFFICES OF MARC SEGUINOT,
Fairfax, Virginia, for Appellant Jones. Christine Manuelian, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore,
Maryland, for Appellee.
OPINION
PER CURIAM:
Appellants Gregory Duffy and James Jones were charged in a
multi-count drug conspiracy indictment and were each convicted of
conspiracy to distribute and possess with intent to distribute cocaine
and cocaine base and of a substantive distribution charge. See 21
U.S.C.A. 841, 846 (West 1999 & Supp. 2001). The district court
sentenced Duffy to concurrent terms of 235 months imprisonment and
Jones to concurrent terms of 292 months imprisonment. Duffy and
Jones appeal, raising various challenges to their convictions and sentences. We affirm the convictions of Duffy and Jones, and we likewise affirm Duffys sentence, but we vacate Joness sentence and
remand for resentencing.
I.
The indictment alleged that Jones, Duffy, and seven others were
members of a large-scale drug conspiracy operating on Marylands
Eastern Shore from July 1995 to August 1996. The governments evidence against Duffy and Jones came primarily from the testimony of
three cooperating co-conspiratorsJames Cephas, Troy Perkins, and
James Deshields. Perkins worked undercover for the Drug Enforce-
Duffy was involved in the sale of crack cocaine. Jones contends that
the government failed to establish any meaningful connection
between Jones and Duffy and that the jury confused the evidence
against him and the evidence against Duffy, wrongly concluding that
Jones was involved with the distribution of crack cocaine. Jones also
contends that the case was so complex that it was unlikely that the
jury would decide his case based only on the evidence against him.
In a similar vein, Duffy argues that the evidence against him was minimal and that there was nothing to connect him to much of the evidence against Jones. Duffy suggests that if the jury had not been
tainted by the evidence against Jones (which would not have been
admissible against Duffy had he been tried separately), it might not
have convicted Duffy. We find no merit in these arguments.
Defendants who are alleged to have participated in the same transaction or series of transactions may be charged in a single indictment.
See Fed. R. Crim. P. 8(b). "The basic rule is that persons who have
been indicted together, particularly for conspiracy, should be tried
together." United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996).
If a defendant will be prejudiced by a joint trial, however, a district
court has the discretion to order separate trials. See Fed. R. Crim. P.
14. "The party moving for severance must establish that actual prejudice would result from a joint trial, and not merely that a separate trial
would offer a better chance of acquittal." United States v. Reavis, 48
F.3d 763, 767 (4th Cir. 1995) (citation, alteration, and internal quotation marks omitted). "[A] district court should grant a severance under
Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence." Zafiro v.
United States, 506 U.S. 534, 539 (1993). A district courts decision
on a severance motion is reviewed only for an abuse of discretion. See
United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996).
Although the government presented relatively little evidence establishing a direct connection between Jones and Duffy, the evidence did
show some connectionfor example, the evidence showed that Jones
supplied cocaine powder to James Deshields, who supplied crack
cocaine to Duffy. That there may have been more or stronger evidence against one or the other of the defendants is insufficient to
require severance. See United States v. Brooks, 957 F.2d 1138, 1145
(4th Cir. 1992) ("The fact that the evidence against one defendant is
stronger than the evidence against other defendants does not in itself
justify severance."); United States v. Mitchell, 733 F.2d 327, 331 (4th
Cir. 1984) ("Disparity in the evidence among the parties . . . is a
proper ground [for severance] only in the most extreme cases. . . ."
(internal quotation marks omitted)). Moreover, nothing in the record
suggests that the evidence was so confusing that the jury would have
been unable to compartmentalize the evidence against Jones and the
evidence against Duffy. Under these circumstances, we cannot conclude that the district court abused its discretion by denying the appellants severance motions.
III.
Duffy raises two issues stemming from the conduct of the governments rebuttal case. A summary of certain events occurring during
the trial is necessary to understand these challenges.
At trial, Duffys wife testified in his defense. Mrs. Duffy stated that
during the time that James Deshields claimed Duffy was selling crack
cocaine for him on a daily basis, Duffy was in fact working at various
jobs. She testified that Duffy worked for Roadway Package System
from 1993 until mid-1995. Duffy was then unemployed for a few
weeks, during which time he did odd jobs at A&L Service Center,
where Mrs. Duffy worked. He then went to work for Federal Express,
where he continued to work until he was arrested in April 1998. During cross-examination, Mrs. Duffy specified that Duffy worked at
A&L Service Center in April 1996, and began working for Federal
Express in May or June of 1996. She also indicated that Duffy
obtained his employment with Federal Express through Vision temporary employment agency.
After Mrs. Duffy testified, DEA Agent Rivello contacted Federal
Express to verify when Duffy worked there. The government sought
to admit as rebuttal evidence a copy of Duffys Federal Express application obtained by Agent Rivello. The application, which was filled
out by Duffy, was dated November 5, 1996, and showed that Duffy
was hired by Federal Express in February 1997. The application did
not indicate that he had previously worked for Federal Express. The
government therefore argued that the application showed that Duffy
was not working for Federal Express during April-July 1996, the
period that James Deshields claimed that Duffy was selling crack
cocaine for him.
Duffy initially objected to the use of the application because the
government did not intend to call the Federal Express records custodian. Counsel for Duffy then argued that Duffy first worked for Federal Express through the temporary agency, and that Duffy filled out
the application in order to become a permanent Federal Express
employee. Counsel for Duffy therefore argued that the application
was not inconsistent with Mrs. Duffys testimony and that the government should not be allowed to use the application to impeach her testimony. The district court resolved the issue by directing the attorneys
for the government and Duffy to call Federal Express to see if it had
any documents establishing that Duffy worked there as a temporary
employee before he was hired as a permanent employee. Counsel for
Duffy stated that he did not "have any problem doing that." Supp. J.A.
791. After a short recess, the parties returned to the courtroom, and
counsel for the government stated that "its been cleared up and I
think we can go ahead with Agent Rivello testifying to it." Supp. J.A.
793.
On direct examination by the government, Agent Rivello testified
that the application was dated November 5, 1996, and showed that
Duffy was hired by Federal Express in February 1997. Rivello
explained that the application did not list any prior employment with
Federal Express, but that it did show Duffys then-current employer
as Vision Temporary Agency. Rivello testified that he contacted the
employment agency and was informed that Duffy worked for the
agency from August 1996 through February 1997, and that he was
assigned to Federal Express during that period. Rivello also testified
that the Federal Express application did not show that Duffy had ever
worked for A&L Service Center, and that he had contacted A&L,
which had no employment records for Duffy. Counsel for Duffy
cross-examined Rivello about his conversation with the owner of
A&L Service Center, but at no point did Duffy raise any objection to
any portion of Rivellos rebuttal testimony.
On appeal, Duffy contends that the governments presentation of
Agent Rivellos testimony amounted to a violation of the govern-
ments disclosure obligations. Duffy argues that while his trial attorney knew about the phone call to Federal Express, Agent Rivello
failed to disclose that he also contacted the temporary agency and
A&L Service Center during the break. Duffy claims that trial counsel
had "prepared a strategy, during rebuttal, of addressing only the Federal Express issue," and that "the defense was caught off guard when
the Agent revealed, for the first time, during rebuttal that he had additional information from Visions Temp Agency and Mr. Majette, of
A&L Service Center." Brief of Appellants at 37-38. Duffy contends
that this failure to disclose violated Rule 16 of the Federal Rules of
Criminal Procedure and that he was substantially prejudiced, because
Rivellos testimony "effectively shattered Mr. Duffys defense and
the credibility of Tammy Duffy." Brief of Appellants at 40.
The government disagrees with part of the factual premise of this
argument, stating in its brief that Duffys trial attorney (who does not
represent Duffy in this appeal) actually spoke to an employee of the
temporary agency before Agent Rivello took the stand. This assertion
is borne out by the record, see Supp. J.A. 797, and we therefore will
limit our consideration of this issue to Duffys claim that the government should have disclosed Agent Rivellos conversation with the
owner of A&L Service Center. Because Duffy never objected to this
testimony and never argued that the government had a duty to disclose the evidence, his claim is reviewed for plain error only. See,
e.g., United States v. Godwin, 272 F.3d 659, 679 (4th Cir. 2001). In
this case, Duffy has failed to establish the existence of any error, plain
or otherwise.
The Federal Rules of Criminal Procedure require the government
to disclose certain statements made by the defendant that are within
the governments control. See Fed. R. Crim. P. 16(a)(1)(A). The government must likewise disclose documents and other tangible objects
in its possession that "are material to the preparation of the defendants defense or are intended for use by the government as evidence
in chief at the trial, or were obtained from or belong to the defendant."
Fed. R. Crim. P. 16(a)(1)(C).
The record indicates that the government provided the Federal
Express application to Duffy as soon as it was obtained, and Duffy
does not contend otherwise. The government therefore satisfied any
10
well aware that his cocaine powder was being converted into crack
cocaine. When one batch of powder did not convert properly, Cephas
complained to Jones about it and cooked a gram of cocaine in Joness
presence to show him what was happening. In addition, the governments evidence established that Jones once gave advice to Deshields
about cooking the powder into an oil base. This evidence is sufficient
to connect Jones to the conspiracy to distribute crack, even if Jones
himself never sold crack. See United States v. Banks, 10 F.3d 1044,
1054 (4th Cir. 1993) ("It is of course elementary that one may be a
member of a conspiracy . . . without taking part in the full range of
its activities. . . ." (emphasis added)); see also Burgos, 94 F.3d at 862
(explaining that "the Government must prove the existence of a conspiracy beyond a reasonable doubt, but upon establishing the conspiracy, only a slight connection need be made linking a defendant to the
conspiracy to support a conspiracy conviction, although this connection also must be proved beyond a reasonable doubt"). We therefore
conclude that the government presented sufficient evidence from
which the jury could find Jones guilty of the conspiracy charge.
V.
Jones and Duffy also raise various challenges to their sentences.
A.
Both Duffy and Jones challenge their sentences in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398). The indictment in this case did
not allege the quantity of drugs involved. Therefore, under Apprendi
and Promise, Duffy and Jones could not be sentenced on each count
of conviction to more than the twenty-year maximum sentence authorized by 21 U.S.C.A. 841(b)(1)(C) (West Supp. 2001), which governs offenses involving an unspecified quantity of drugs. See
Promise, 255 F.3d at 156. Because the defendants raise this issue for
the first time on appeal, our review is for plain error only. See United
States v. Angle, 254 F.3d 514, 517 (4th Cir.) (en banc), cert. denied,
122 S. Ct. 309 (2001).
Duffy received a sentence of 235 months on both counts of conviction. Accordingly, no Apprendi error occurred. See id. at 518. Jones,
11
12
13
14
The government suggests that the enhancement was proper given the
dangerous nature of the weapons and the fact that they were found fully
loaded and in easily accessible locations. In this case, however, we cannot conclude that these facts are sufficient, in and of themselves, to support the offense-level enhancement under section 2D1.1.