U.S. v. Bryant
| Citation | 36 F.3d 1094 |
| Decision Date | 30 September 1994 |
| Docket Number | 93-5028,93-5026,93-5075,93-5023,93-5029,Nos. 93-5022,93-5027,s. 93-5022 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Richard L. BRYANT, a/k/a Pumpkin, a/k/a Rock, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Johnnie HARRIS, a/k/a Bra, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jennifer A. ROUSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Benjamin SAWYER, Jr., a/k/a Big Ben, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Keith C. WARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John R. WARD, a/k/a Billy, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mike Andrew BROCKETT, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Michael R. Smythers, Asst. U.S. Atty., Norfolk, VA, for appellee.
ON BRIEF: Andrew A. Protogyrou, Knight, Dudley, Dezern & Clarke, Norfolk, VA, for apellant Brockett;
Jesse E. Demps, Eric O. Moody & Associates, P.C., Portsmouth, VAa, for appellant Keith Ward;
Duncan R. St. Clair, III, St. Clair, Miller & Mark, P.C., Norfolk, VA, for appellant Bryant;
Ann Aleathia Gourdine, Melvin & Gourdine, Portsmouth, VA, for appellant Rouse;
W. Thurston Harville, Norfolk, VA, for appellant Harris.
Helen F. Fahey, U.S. Atty., Norfolk, VA, for appellee.
Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.
Following an extensive federal drug task force investigation, 19 persons were indicted for their participation in a large drug distribution conspiracy in Virginia Beach, Virginia. Richard Bryant, alias "Pumpkin," was the organizer and leader of the ring and he and his conspirators imported multi-kilogram amounts of cocaine from New Jersey and New York to Virginia Beach. The cocaine was distributed to mid-level dealers who repackaged the cocaine for street sale or cooked it into rocks of "crack" or cocaine base for street distribution. The street dealers distributed the cocaine and crack, mainly in inner-city housing projects. The trial revealed that the conspiracy distributed approximately 29 kilograms of cocaine and 31 kilograms of "crack," with a total street value of over $6.5 million.
Eleven of those charged pled guilty and eight proceeded to trial. On the second day of trial, Howard Jeff Brown pled guilty and agreed to testify in the trial against the remaining seven defendants. All defendants were convicted and received sentences from 132 months to life imprisonment. From the judgments of conviction, seven defendants appeal raising numerous issues, two of which merit a somewhat fuller discussion. After having considered all the points raised, we affirm the judgments of the district court.
The principal point raised by the appellants arises from the district court's accepting a guilty plea from Howard Brown during the course of trial and permitting him, as part of his plea agreement, to testify thereafter against the remaining defendants. The appellants argue that in effect, Brown "changed sides" and prejudiced their defense in violation of the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment guarantee of effective assistance of counsel. They contend that since Brown and his attorney participated in the formulation of pre-trial strategy sessions, participated in the voir dire process, and undertook participation in a joint defense, allowing Brown thereafter to switch sides violated the remaining defendants' rights to a confidential and effective attorney-client relationship and an impartial jury.
The contention that Brown's switching sides amounted to a compromise of the remaining defendants' attorney-client relationships essentially amounts to an allegation that the government used Brown as a spy in the defense camp and purposefully delayed his plea bargain until he could bring the government valuable information on defense strategy. While this allegation is a serious one, the record provides no factual support for it. The record shows that during the course of trial, counsel for Brown had been discussing with the government's attorneys the possibility of pleading guilty. Once the plea agreement was reached, the plea was accepted by the court and Brown testified on behalf of the government against the remaining defendants involved in the conspiracy. There is no evidence to suggest that Brown revealed any trial strategies or even that there were any useful trial strategies to reveal. Moreover, there is no evidence that the government in any way benefited from Brown's switch except through testimony given which related to the conspiracy.
In United States v. Brugman, 655 F.2d 540 (4th Cir.1981), we were presented with a similar problem. There, a drug conspiracy case proceeded to trial against three defendants, one of whom "changed sides" during trial by pleading guilty and testifying against the remaining two. The defendant who changed sides had attended a joint defense counsel meeting during trial, prompting the remaining two defendants to argue that the government deprived them of effective assistance of counsel guaranteed by the Sixth Amendment. In rejecting the claim, we applied a four-part test:
In determining whether there has been an invasion such as to be violative of the Sixth Amendment right to effective assistance of counsel, four factors must be considered. They include: (1) whether the presence of the informant was purposely caused by the government in order to garner confidential, privileged information, or whether the presence of the informant was a result of other inadvertent occurrences; (2) whether the government obtained, directly or indirectly, any evidence which was used at trial as a result of the informant's intrusion; (3) whether any other information gained by the informant's intrusion was used in any other manner to the substantial detriment of the defendant; and finally (4) whether the details about trial preparation were learned by the government.
Id. at 546 (citation omitted).
No defense attorney in this case argued at trial the existence of facts relating to any of the four factors identified by the court in Brugman. Indeed, even on appeal the defendants are unable to point to any evidence that the government engineered the timing of Brown's change of heart, or that the government obtained valuable confidential information about the defense's trial strategy. On the contrary, the government has denied having obtained any such information. On this record, we believe that the defendants' right to effective assistance of counsel guaranteed by the Sixth Amendment was not compromised in any way by Brown's pleading guilty during trial and then testifying against the remaining defendants.
The defendants also argue that Brown participated in voir dire and that his changing sides violated their right to an impartial jury. However, the record again does not support the contention. The only apparent effect of Brown's participation in voir dire appears to have been that the district court struck, for cause and upon the government's motion, a potential juror who had ties to Brown's attorney. The defendants cite no authority to support their theory that in the absence of prejudice, when a defendant pleads guilty during the trial after participating in voir dire, the remaining defendants are automatically subjected to trial by a tainted jury. In the absence of any demonstration by these defendants of facts or law to support their position, we must reject it.
Appellant John Ward contends that the district court erred in refusing to suppress evidence seized in a search of him and of the automobile he was driving, conducted on May 31, 1991. Ward and his car were searched, following his arrest for carrying a concealed weapon. Ward argues that the officers had no probable cause to arrest him for carrying a concealed weapon and that therefore the search incident to an arrest was illegal.
On May 31, 1991, a task force detective received a tip from a previously reliable informant that a light-colored Lincoln Continental with a model year in the mid-70s and a license plate number starting with "TGH," occupied by two black, heavyset males, one of whom would be Benjamin Sawyer, Jr., would be delivering cocaine that evening to Freddie Lee Blackshear at 205-A Sykes Avenue. Because the police had previously received information from informants that Sawyer was a cocaine dealer and indeed had been arrested for possession of cocaine with intent to distribute and because they had previously executed search warrants for cocaine and "crack" at the Sykes Avenue apartment and suspected that Blackshear, who lived there, was a cocaine dealer working for Sawyer, a team of detectives and officers set up surveillance of 205-A Sykes Avenue.
At approximately 9:45 p.m. on that day, the surveillance team observed a light-colored Lincoln Continental stop in a driveway next to 205-A Sykes Avenue. The car was occupied only by its driver, a black male. After approaching the car and asking its...
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