245 F.3d 368 (4th Cir. 2001), 99-4860, United States v. Stickland

Docket Nº:99-4860 No. 99-4861 No. 99-4862 No. 99-4863 No. 99-4864
Citation:245 F.3d 368
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EUGENE STRICKLAND, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARSHALL STRICKLAND, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIFFANY GRAHAM Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMILY CHARITY CHAVIS, a/k/a Pooh, De
Case Date:April 03, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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245 F.3d 368 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

EUGENE STRICKLAND, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MARSHALL STRICKLAND, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TIFFANY GRAHAM Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

EMILY CHARITY CHAVIS, a/k/a Pooh, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MICKEY STRICKLAND, Defendant-Appellant.

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

ROBERT M. STRICKLAND, a/k/a Punch,Defendant-Appellant.

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

LEON STRICKLAND,Defendant-Appellant.

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

MITCHELL KELLY CHAVIS,Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TRAVIS STRICKLAND, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

PATRICIA MCGIRT, Defendant-Appellant.

No. 99-4855 No. 99-4856 No. 99-4857 No. 99-4858 No. 99-4859

No. 99-4860 No. 99-4861 No. 99-4862 No. 99-4863 No. 99-4864

United States Court of Appeals, Fourth Circuit

April 3, 2001

        Argued: January 26, 2001

        Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge.

        (CR-98-82)

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        COUNSEL: ARGUED: Robert John McAfee, MCCOTTER, MCAFEE & ASHTON, New Bern, North Carolina; Felix Thomas Holt, III, BEAVER, HOLT, RICHARDSON, STERNLICHT, BURGE & GLAZIER, P.A., Fayetteville, North Carolina; Vaughan Sharp Winborne, Jr., Raleigh, North Carolina; Hart Miles, Jr., Raleigh, North Carolina, for Appellants. Mary Jude Darrow, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Richard B. Glazier, BEAVER, HOLT, RICHARDSON, STERNLICHT, BURGE & GLAZIER, P.A., Fayetteville, North Carolina, for Appellant Marshall Strickland; Gregory J. Ramage, Raleigh, North Carolina, for Appellant Graham; Mark E. Edwards, EDWARDS & FLEMMING, P.L.L.C., Durham, North Carolina, for Appellant Emily Chavis; James M. Ayers, II, New Bern, North Carolina, for Appellant Mickey Strickland; Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant Mitchell Chavis; Carlton M. Mansfield, Lumberton, North Carolina, for Appellant Travis Strickland; David K. Williams, Jr., Greensboro, North Carolina, for Appellant McGirt. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

        Before NIEMEYER and MICHAEL, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

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        Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Senior Judge Michael joined. Judge Michael wrote an opinion concurring in part and concurring in the judgment.

         OPINION

        NIEMEYER, Circuit Judge:

        On appeal from their convictions for conspiracy to traffic in drugs and related offenses, the ten defendants in this case challenge their sentences under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), maintaining that they were improperly denied the right to have the jury find drug quantities and other sentence-enhancing facts. Various defendants also assign error based on (1) the use of evidence from an illegal search, (2) a second trial after a mistrial in violation of the Double Jeopardy Clause, (3) the failure to sever several of the defendants' cases, (4) the insufficiency of evidence, (5) the admission of irrelevant and prejudicial evidence, (6) prosecutorial misconduct, (7) the rejection of the "public authority" defense, and (8) the attribution of excessive drug quantities for sentencing purposes. For the reasons that follow, we reject each of these contentions and affirm.

        I

        The Strickland family organization was engaged in extensive cocaine and cocaine base ("crack cocaine") distribution in Maxton, Robeson County, North Carolina, over the period from 1989 to 1999. Eugene Strickland and Marshall Strickland were primary sources for cocaine and cocaine base sold principally from three open-air locations in Robeson County -at a well-known curve on North Carolina State Route 130 ("Deep Curve"); at "Mickey's Place" and the shop behind it; and at Eugene Strickland's residence. They were in turn supplied during part of the period by Tiffany Graham. Emily Charity Chavis assisted Eugene Strickland in managing the money as well as in selling cocaine. Leon Strickland, Mickey Strickland, Robert "Punch" Strickland, Mitchell Kelly Chavis, and Travis Strickland received cocaine from Eugene Strickland and Marshall Strickland and sold it on the street, mostly at the three locations in Robeson County. Patricia McGirt was the mother of Emily Charity Chavis and was present at times when Eugene Strickland sold cocaine. She also assisted Eugene Strickland and Emily Charity Chavis and others to purchase cocaine from one of Eugene Strickland's sources and hosted one of his sources at her home.

        Ten members of the conspiracy were tried in this case, and all were convicted, but more than 15 other related cases were separately prosecuted against others. While the court granted motions for judgment of acquittal in favor of Eugene Strickland and Marshall Strickland (Counts II and III) for firearms offenses, the jury convicted all defendants of conspiracy to engage in drug trafficking, in violation of 21 U.S.C. SS 846 & 841(a)(1), and Eugene Strickland and Travis Strickland of one count each for firearms offenses.

        The district court sentenced Eugene Strickland to life imprisonment plus 60 months for his firearm count; Travis Strickland to 188 months imprisonment plus 60 months for his firearm count; Marshall Strickland to 400 months imprisonment; Tiffany Graham to 292 months; Emily Charity Chavis, 292 months; Mickey Strickland, 235 months; Robert "Punch" Strickland, 292 months; Leon Strickland, 292 months; Mitchell Kelly Chavis, 262 months; and Patricia McGirt, 63 months. Each of the defendants was also sentenced to a five-year term of supervised

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release and ordered to pay a fine. These appeals followed.

        II

        The defendants' most significant argument is that their sentences for drug-trafficking crimes were improperly enhanced by the quantity of drugs involved. They argue that they were not charged with the amount of drugs that would enhance their sentences and that the jury was not instructed to find the enhanced amounts beyond a reasonable doubt. Rather, the enhancements were found by the sentencing judge as part of the sentencing process. More specifically they contend that

        [w]hen a statutory "sentencing factor", specifically drug quantity, increases the maximum sentence beyond the sentencing range that would otherwise be allowed by the jury's verdict, the factor is no longer simply a matter of sentencing, but an element of a different crime.

        Directing their argument to the circumstances in this case, the defendants contend:

        There is simply no question that the indictment failed to set out, with any specificity, the amount of drugs the defendant was charged with under S 841; the jury charge issued in this case did not require the jury to make any factual finding of the amount of narcotics involved; the jury verdict only required the defendant to be found guilty or not guilty as to Count 1 with no special interrogatory attached, (J.A. at 2107); and the ultimate finding against the defendant of the amount of narcotics was made by the trial judge at sentencing on a preponderance of the evidence standard alone.

        The defendants assert that taking the issue of enhancing drug quantities from the jury denied them the due process guaranteed by the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment. They base their arguments on two recent Supreme Court decisions, Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). The defendants claim that they preserved this error at trial through their generalized challenge to drug quantities made during sentencing. In the alternative, they argue, the error amounted to a "plain error" that we should notice and correct under the analysis of United States v. Olano, 507 U.S. 725 (1993).

        The government contends that the Apprendi defense cannot apply to all of the defendants, because several were sentenced to a term of imprisonment under 240 months, the lowest maximum amount for conspiring to traffic in cocaine and cocaine base in violation of 21 U.S.C. S 846. See 21 U.S.C. SS 846, 841(b)(1)(C). As to those defendants for whom the argument can be made that their sentences were enhanced beyond 240 months because of the quantity of drugs involved, the government concedes, based on our no-longer viable decision in United States v. Angle, 230 F.3d 113 (4th Cir. 2000), that the district court erred under Apprendi and that the error was plain. The Angle decision, however, has since been vacated by our order to rehear that case en banc. Rather than challenging whether there was error, the government argues that, because the error was not preserved, it can only be reviewed under plain-error principles. Under those principles, the defendants whose sentences were enhanced beyond 240 months because of the quantity of drugs involved could not take advantage of the error because it did not affect their substantial rights. The government states that "overwhelming evidence established

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that the conspiracy involved...

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