USA. v. Montgomery

• Decision Date: 30 October 2000
• Docket Number: No. 98-4816,No. 98-4691,No. 98-4693,No. 98-4689,No. 98-4688,No. 98-4690,No. 98-4692,98-4688,98-4689,98-4690,98-4691,98-4692,98-4693,98-4816
• Citation: 262 F.3d 233
• Parties: (4th Cir. 2001) 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. PIRRIE 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. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 233

262 F.3d 233 (4th Cir. 2001)

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. PIRRIE 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.

No. 98-4688 No. 98-4689 No. 98-4690 No. 98-4691 No. 98-4692 No. 98-4693 No. 98-4816

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 30, 2000

Decided: July 17, 2001

Appeals from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge.

(CR-96-399)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Cyril Vincent Smith, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & BETTER, L.L.P., Baltimore, Maryland; Donald Henry Feige, Baltimore, Maryland, for Appellants. Martin Joseph Clarke, Assistant United States Attorney, Christine Manuelian, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Frederick J. Sullivan, Baltimore, Maryland, for Appellant Montgomery; Thanos Kanellakos, Baltimore, Maryland, for Appellant Jones; Jane C. Norman, BOND, CONTE & NORMAN, P.C., for Appellant Carroll; G. Godwin Oyewole, Washington, D.C., for Appellant Coates; Harold I. Glaser, Baltimore, Maryland, for Appellant Hill. Deborah S. Richardson, ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & BETTER, L.L.P., Baltimore, Maryland; Charles G. Bernstein, BERNSTEIN & SAKELLARIS, Baltimore, Maryland, for Appellant Holland. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

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, Pirrie Coates, Kevin Jones, James DeBerry, and Duane Carroll, joined in an extensive conspiracy to distribute 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). Nonetheless, these arguments are reiterated at length on appeal -in multiple briefs totaling more than 150 pages. For the reasons stated within, we reject these arguments. Accordingly, we affirm all of the convictions and sentences. Although we have carefully considered all of the arguments raised on appeal, we discuss only the most significant.

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 19, 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.

Hill initially contends that the present conspiracy charge constitutes a reprosecution of the 1994 charges that were dismissed by the federal court in exchange for his guilty plea to identical charges in state court. We disagree. Neither the 1994 federal charges nor Hill's state plea constitute proper grounds for a double jeopardy claim. As to the 1994 federal charges, the district court noted, "no jury or witness was ever sworn in a trial of the 1994 federal charges" nor did Hill enter a "guilty plea in federal court" to those charges. Holland, 985 F. Supp. at 593. Accordingly, jeopardy never attached with respect to the 1994 federal charges.

With regard to the state plea, even though one overt act in Hill's present conspiracy charge involves crack found on October 17, 1994, in his storage locker, and so is based in part on the same conduct to which Hill pled guilty in state court in 1995, the doctrine of dual sovereignty permits the present prosecution. See Heath v. Alabama, 474 U.S. 82, 88-89 (1985). We also note that Hill has not demonstrated any factual basis for the "sham prosecution" exception to the dual sovereignty rule. See Bartkus v. Illinois, 359 U.S. 121, 122-24 (1959). Rather than being "dominated, controlled, or manipulated" by federal prosecutors, the district court found that the "state prosecutor was independent from the federal prosecutor, did not purport to represent the federal sovereign, was not funded by the federal sovereign and vindicated the separate interests of the state sovereign in prosecuting Hill." Holland, 985 F. Supp. at 594. Hill does not even suggest that these findings constituted clear error.

Although in the district court Hill specifically disavowed any claim that the government violated its 1994 agreement with him, id. at 593 n.3, Hill now maintains that in pursuing the present prosecution the government did violate this agreement and so his due process rights. Assuming that Hill has somehow preserved this claim for appellate review, it is nevertheless meritless. Hill contends that the "Federal Prosecutor dismissed the Federal indictment and agreed to no further prosecution" (emphasis added); he cites three record references assertedly supporting this charge. None of them do. Rather, the record reveals that the government agreed only to dismiss the federal charges "in return for a plea of guilty" on the state charges. See J.A. 2469. The federal prosecutor made no representations as to future prosecutions. The government certainly did not bind itself to forego the use of conduct giving rise to the 1995 plea as evidence of the much larger drug conspiracy charged here involving multiple participants over a five year period.¹

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 (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, 1988 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 avoid confusion or waste of time resulting from having the same issues before two courts at the same time." United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989)....