587 F.3d 625 (4th Cir. 2009), 06-4391, United States v. Johnson

Docket Nº:06-4391, 06-4392, 06-4527.
Citation:587 F.3d 625
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donna Conzuella JOHNSON, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John Albert Martin, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Craig Arnold Scott, a/k/a Craig Levi, Defendant-Appellant.
Attorney:Gregory Bruce English, English & Smith, Alexandria, Virginia; Daniel H. Ginsburg, Bennett & Bair, LLC, Greenbelt, Maryland; Jason E. Silverstein, Roland Walker & Mark Zayon, PA, Baltimore, Maryland, for Appellants.\ Deborah A. Johnston, Office of the United States Attorney, Greenbelt, Maryland, f...
Judge Panel:Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge AGEE joined.
Case Date:December 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 625

587 F.3d 625 (4th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donna Conzuella JOHNSON, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

John Albert Martin, Jr., Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Craig Arnold Scott, a/k/a Craig Levi, Defendant-Appellant.

Nos. 06-4391, 06-4392, 06-4527.

United States Court of Appeals, Fourth Circuit.

December 2, 2009

Argued: Sept. 24, 2009.

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ARGUED:

Gregory Bruce English, English & Smith, Alexandria, Virginia; Daniel H. Ginsburg, Bennett & Bair, LLC, Greenbelt, Maryland; Jason E. Silverstein, Roland Walker & Mark Zayon, PA, Baltimore, Maryland, for Appellants.\

Deborah A. Johnston, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF:

Gary E. Bair, Bennett & Bair, LLC, Greenbelt, Maryland, for Appellant John Albert Martin, Jr.; Roland Walker, Roland Walker & Mark Zayon, PA, Baltimore, Maryland, for Appellant Craig Arnold Scott.

Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Bonnie S. Greenberg, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge AGEE joined.

OPINION

WILKINSON, Circuit Judge:

Donna C. Johnson, Craig A. Scott, and John A. Martin were convicted of conspiracy and other offenses in relation to the distribution of narcotics. On appeal, they raise various claims, some collectively and others individually. After careful consideration, we find that these claims lack merit, and we affirm the judgment of the district court.

I.

This case involves an extensive drug-trafficking organization that operated in Maryland, the District of Columbia, New York, and elsewhere. The major figures in this organization included Paulette Martin, Gwendolyn Levi, and Moises Uriarte. From March until June 2004, investigators,

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acting with court authorization, tapped Paulette Martin's phone lines. From these wiretaps, they learned that Paulette Martin was obtaining heroin from Levi. As a result, they obtained authorization to tap Levi's cellular phone line and intercepted her communications with her heroin supplier, Uriarte. In June 2004, the investigation culminated in the arrest of over thirty individuals and the execution of over twenty search warrants.

Johnson, Scott, and John Martin were each tied to the organization in different ways. Johnson accompanied Levi to purchase heroin from Uriarte on at least one occasion. On April 23, 2004, officers observed Johnson and Levi drive from Levi's Maryland residence to a furniture store in New York City to meet Uriarte. Levi entered the store carrying a box containing about a quarter of a million dollars and exited with a gift-wrapped package that she placed in the trunk of the vehicle. That night, Johnson and Levi drove back into Mary land, where state police pulled them over. The police searched the trunk and seized the package, which contained approximately 2300 grams of heroin. Johnson and Levi were then arrested.

Scott is Levi's son. Calls intercepted in April 2004 revealed that he helped Levi process and distribute heroin. On one occasion, he complained to Levi that several of his heroin customers were " on hold." Levi instructed him to obtain fifty grams of heroin from her basement, and he later confirmed that he had done so. On another occasion, Levi asked Scott to go to her house and package some heroin for distribution, which Scott later confirmed he had done. Subsequent to Levi's arrest, officers executed a search warrant at her home and found a heroin processing operation in her basement, the location from which she had directed Scott to obtain the heroin.

John Martin resided with Paulette Martin in Maryland and helped her distribute cocaine and heroin.[*] Investigators intercepted numerous phone calls in which John Martin discussed his drug-trafficking activities with Paulette Martin and others. On one occasion, John Martin and Paulette Martin discussed moving her drug supply from their residence to a performing arts school, which Paulette Martin used as a front for various illegal activities. On June 1, 2004, officers executed search warrants at both their residence and the school. At the residence, they discovered, among other things, cocaine, cocaine base, over $7000 in cash, a digital scale, and a sheet of paper indicating money owed to " Gwen." They also recovered a black shaving kit, containing heroin, cocaine, and an employment check in John Martin's name. At the school, they discovered, among other things, more cocaine, cocaine base, and heroin-much of which was packaged for distribution.

Johnson, Scott, and John Martin were among many individuals indicted in connection with this drug conspiracy in the United States District Court for the District of Maryland. The three were tried together in November and December 2005. On December 22, 2005, a jury convicted all three defendants of conspiring to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 (2006). In addition, Johnson was convicted of traveling in interstate commerce in the commission of unlawful activity in violation of 18 U.S.C. § 1952 and possession with intent to distribute

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heroin in violation of 21 U.S.C. § 841. Scott was convicted of the use of a communications device to facilitate narcotics trafficking in violation of 21 U.S.C. § 843(b) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Lastly, the jury convicted Martin of three counts of the use of a communications device to facilitate narcotics trafficking in violation of 21 U.S.C. § 843(b).

The district court sentenced Johnson to 135 months imprisonment and five years supervised release, Scott to 150 months imprisonment and five years supervised release, and Martin to 375 months imprisonment and ten years supervised release.

On appeal, Johnson, Scott, and Martin raise various claims, some collectively and some individually. Collectively, they contend, first, that the district court abused its discretion by not granting a mistrial when a government witness refused to testify and, second, that they were prejudiced by prosecutorial vouching during closing argument. Individually, Johnson challenges the sufficiency of the evidence supporting her three convictions. Also individually, Martin challenges the admission of expert testimony and a prior conviction. He also raises two sentencing issues. We address these claims in turn and set forth additional facts as they become necessary.

II.

The defendants first contend that the district court abused its discretion by not granting a mistrial when Gwendolyn Levi, a government witness, took the stand and refused to testify. According to the defendants, the government put Levi on the stand with the knowledge that she would refuse to testify and thereby cause the jury to infer that she had incriminating information about the defendants.

A.

Levi entered into a plea agreement with the government that required her to testify at trial. But on the night before she was scheduled to take the stand, she met with prosecutors and informed them that she no longer intended to testify. She did not, however, provide any explanation for her change of heart, nor did she indicate that she might invoke her Fifth Amendment privilege against self-incrimination. During the meeting, she was extremely emotional and said that some of her family members were encouraging her to testify. By the end, she agreed to reconsider the matter overnight, taking her family's advice into account.

The next day, the government called Levi to the stand. She took the oath and answered a few questions about her background. After testifying that she was arrested in April 2004, she refused to answer any more questions. At that point, the district court excused the jurors and then questioned Levi outside of their presence. Levi stated that she simply did not wish to testify and denied that she was concerned about incriminating herself or her son, Craig Scott. After consulting with her attorney, however, she informed the court that she did not wish to testify because of her privilege against self-incrimination. In response, the government obtained an immunity order to compel her to testify, but Levi still refused.

Ultimately, the district court held Levi in contempt of court and gave the following instruction to the jury:

You may recall that a witness by the name of Gwendolyn Levi was called to the stand and testified briefly, and then she decided she did not wish to testify further. I have ordered her testimony stricken. You should disregard in its entirety everything you heard out of the mouth of Gwendolyn Levi. You should

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also draw no inference in any way, shape or manner concerning her decision that she did not wish to further testify.

J.A. 1785. The district court also denied the defendants' motion for a mistrial. It specifically found that the government had engaged in no misconduct regarding Levi's expected testimony and that any inference that was created by Levi's refusal to testify did not add critical weight to the government's case.

B.

We review a district court's denial of a motion for a mistrial for abuse of discretion. United States v. Allen, 491 F.3d 178, 189 (4th Cir.2007). The Supreme Court has noted two circumstances in which a government...

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