206 F.3d 349 (4th Cir. 1999), 97-4465, United States v. Rhynes

Docket Nº:97-4465 No. 97-4466 No. 97-4467 No. 97-4468 No. 97-4469 No. 97-4470 No. 97-4602 No. 97-4640 (CR-96-6-V).
Citation:206 F.3d 349
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIE JAMES RHYNES, a/k/a Big Will, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL SEVANE RHYNES, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THEODORE ADAMS, a/k/a Cripple Thado, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appelle
Case Date:October 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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206 F.3d 349 (4th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WILLIE JAMES RHYNES, a/k/a Big Will, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MICHAEL SEVANE RHYNES, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

THEODORE ADAMS, a/k/a Cripple Thado, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

PURVIS H. GORMLEY, a/k/a Lightbread, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOHN WAYNE WHITE, a/k/a Whitey, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

LESTER MCCOY, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ALEXANDER ADAMS, a/k/a Fats, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MICHAEL SEVANE RHYNES, Defendant-Appellant.

No. 97-4465 No. 97-4466 No. 97-4467 No. 97-4468 No. 97-4469 No. 97-4470 No. 97-4602 No. 97-4640 (CR-96-6-V).

United States Court of Appeals, Fourth Circuit

October 26, 1999

Argued: December 4, 1998.

Filed: November 8, 1999.

NOTE: In Nos. 97-4466(L), rehearing en banc on the witness exclusion issue of Michael Rhynes is granted.

Parts IV and XVI (only insofar as Part XVI relates to Part IV) of the published majority Opinion filed 10/26/99 are vacated, with the balance of the majority opinion to remain in full force and effect.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

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COUNSEL ARGUED: Noell Peter Tin, FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina; Claire J. Rauscher, Charlotte, North Carolina; Michael Smith Scofield, Charlotte, North Carolina; Gregory Bruce Park, LANGE & PARK, Charlotte, North Carolina; John Keating Wiles, CHESHIRE & PARKER, Raleigh, North Carolina, for Appellants. Gretchen C.F. Shappert, Robert Jack Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Joseph B. Cheshire, IV, CHESHIRE & PARKER, Charlotte, North Carolina, for Appellant Willie Rhynes; Barry M. Storick, Charlotte, North Carolina, for Appellant White; Mark P. Foster, Jr., Charlotte, North Carolina, for Appellant Gormley.

Before WILKINSON, Chief Judge, KING, Circuit Judge, and WILLIAMS, United States District Judge for the District of Maryland, sitting by designation.

Affirmed in part, judgment withheld in part by published opinion. Judge Williams wrote the opinion, in which Chief Judge Wilkinson joined. Judge King wrote an opinion concurring in part and dissenting in part.

OPINION

WILLIAMS, District Judge:

Appellants Willie James Rhynes ("W. Rhynes"), his son Michael Sevane Rhynes ("M. Rhynes"), Theodore Adams ("T. Adams"), Purvis H. Gormley ("Gormley"), John Wayne White ("White"), Lester McCoy ("McCoy"), and Alexander Adams ("A. Adams") appeal their convictions. Appellants in this case raise numerous issues, which will be addressed in turn. For the reasons that will follow, we affirm the judgments of the district court, except that we withhold judgment for thirty days on the convictions of W. Rhynes, A. Adams, and T. Adams on Count I, as more fully explained below.

I.

Defendants were accused of being members of a large scale drug conspiracy, which had begun in Charlotte, North Carolina, and had existed over twenty-five years. W. Rhynes was accused of being the leader of the conspiracy. Defendants were charged with conspiracy to possess with intent to distribute cocaine, cocaine base, heroin, and marijuana in violation of 21 U.S.C. § 846. W. Rhynes was also charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). T. Adams, W. Rhynes, M. Rhynes, and Gormley were also charged with conspiracy to commit money laundering in violation of 18 U.S.C. §§ 371 and 1956(h).

Prior to trial, W. Rhynes moved to suppress evidence seized from his residence and businesses, arguing that the search warrants upon which the items were seized contained stale information. United States Magistrate Judge Carl Horn denied that motion, and the district court adopted that decision.

During the three-week trial in the United States District Court for the Western District of North Carolina at Charlotte, the United States of America ("Government") presented over twenty witnesses who were alleged to be conspirators or participants in the drug trade of defendants. The Government also presented eight law enforcement officers, large quantities of drug paraphernalia, and a package containing heroin and cocaine. This package, which was seized from the United States Express Mail Service, bore the label of S&S Food Mart, but had the address of, and was delivered to, the Clifford Place Big Apple Store.

Defendants also called numerous witnesses. One of the witnesses for defendant M. Rhynes was Corwin Alexander

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("Alexander"). During the course of Alexander's testimony, it became clear that he had been informed of previous testimony in the case. Counsel for defendant M. Rhynes admitted that he had questioned Alexander about some of the prior testimony in order to determine whether he would exercise his rights under the Fifth Amendment to the United States Constitution if he took the stand. The district court ruled that its sequestration order had been violated, and struck Alexander's testimony.

At the end of the trial, the jury deliberated for two days and found all of the defendants guilty of the conspiracy to traffic in controlled substances. T. Adams was convicted of conspiracy to commit money laundering, while W. Rhynes, M. Rhynes, and Gormley were acquitted of that charge. Forfeiture judgments in the amount of $1,000,000 were returned against M. Rhynes and W. Rhynes following the guilt phase of the trial pursuant to 21 U.S.C. §§ 853 and 982.

Defendants all filed motions for judgments of acquittal and for new trials. While these motions for new trials were still pending, the Government learned that one of its witnesses might have gained information about the trial during the trial in violation of the sequestration order. The Government contacted the trial judge, Judge Charles H. Haden II, and briefly discussed the problem with him. Defense counsel were not privy to this conversation. Six days after the Government learned of the allegation, the Government sent a letter to the court and defense counsel detailing the investigation that it had conducted into the matter.

A hearing on the motions was held. Judge Haden recused himself at this hearing because he had become a material witness. Chief Judge Richard L. Voorhees assumed jurisdiction over the case. After an evidentiary hearing, the district court found that the ex parte communication was not made at a critical stage of the proceedings, and that defendants were not prejudiced by the conversation. Therefore, the district court denied defendants' motions for new trials.

The district court gave all of defendants managerial role enhancements when he sentenced them. W. Rhynes and T. Adams were sentenced to life terms. M. Rhynes and A. Adams were sentenced to terms of 360 months. Gormley and White were sentenced to terms of 292 months, and McCoy was sentenced to a term of 262 months.

II.

Appellants first argue that the district court erred in denying their motions for new trials based on the fact that the Government had a brief ex parte communication with the district court concerning an allegation that arose after trial that one of the Government's witnesses might have violated the district court's sequestration order. We find that the trial court was within its discretion in denying the motions for new trials.

The allegation came to light nearly two weeks after the close of trial, on October 25, 1996. On that date, Assistant United States Attorney ("AUSA") Robert J. Hidgon ("Hidgon") received notification that Carlos Adams ("C. Adams") had accused one of the trial witnesses, later identified as Andy Stinson ("Stinson"), of violating the court's sequestration order by paying a woman to observe and report the daily activities of the trial. Joint Appendix at 2016. C. Adams also alleged that other witnesses had structured their testimony to be consistent with prior testimony. See J.A. at 2017.

Higdon contacted IRS Special Agent Floyd Mitchell ("Mitchell"), who had been the lead investigator in this case, and directed him to investigate the allegations. Id. On October 28, 1996, AUSA Hidgon spoke over the telephone to Judge Haden, with AUSA Gretchen Shappert ("Shappert") and Mitchell present in Hidgon's office. Hidgon advised Judge Haden of the situation. J.A. at 2017, 2363-65.

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Mitchell conducted his investigation of the event, speaking to the four individuals mentioned by C. Adams. These individuals, Gary Cannon ("Cannon"), Stinson, Tim Perry ("Perry"), and Scott Lattimore denied all of C. Adams' allegations. See J.A. at 2036-46. In a letter dated October 31, 1996, AUSA Higdon detailed the results of Special Agent Mitchell's interviews and included copies of Mitchell's reports. See J.A. at 1967-70. Defense counsel learned about C. Adams' allegations through this letter. Following the receipt of the letter, many of appellants filed new motions for new trials. Judge Haden recused himself pursuant to 28 U.S.C. § 455(b)(1) due to his personal knowledge of evidentiary facts placed in dispute by the...

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