599 F.3d 360 (4th Cir. 2010), 08-4088, United States v. Green

Docket Nº:08-4088, 08-4090.
Citation:599 F.3d 360
Opinion Judge:DAVIS, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Phillip Wayne GREEN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Courtney Omar Boyd, a/k/a Omar, Defendant-Appellant.
Attorney:Marcia G. Shein, Law Office of Marcia G. Shein, PC, Decatur, Georgia; Lawrence Hunter Woodward, Jr., Shuttleworth, Ruloff, Swain, Haddad & Morecock, PC, Virginia Beach, Virginia, for Appellants. Richard Daniel Cooke, Office of The United States Attorney, Richmond, Virginia, for Appellee. Dana J. ...
Judge Panel:Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges. Affirmed by published opinion. Judge DAVIS wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge GREGORY wrote a separate opinion dissenting in part. GREGORY, Circuit Judge, dissenting in part:
Case Date:April 05, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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599 F.3d 360 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Phillip Wayne GREEN, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Courtney Omar Boyd, a/k/a Omar, Defendant-Appellant.

Nos. 08-4088, 08-4090.

United States Court of Appeals, Fourth Circuit.

April 5, 2010

Argued: Oct. 29, 2009.

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[Copyrighted Material Omitted]

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ARGUED:

Marcia G. Shein, Law Office of Marcia G. Shein, PC, Decatur, Georgia; Lawrence Hunter Woodward, Jr., Shuttleworth,

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Ruloff, Swain, Haddad & Morecock, PC, Virginia Beach, Virginia, for Appellants.

Richard Daniel Cooke, Office of The United States Attorney, Richmond, Virginia, for Appellee.

ON BRIEF:

Dana J. Boente, Acting United States Attorney, Alexandria, Virginia; Eric M. Hurt, Assistant United States Attorney, Office of The United States Attorney, Newport News, Virginia, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge DAVIS wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge GREGORY wrote a separate opinion dissenting in part.

OPINION

DAVIS, Circuit Judge:

Appellant Courtney Omar Boyd (" Boyd" ) was convicted by a jury in the Eastern District of Virginia on two counts of a multi-count indictment: (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and more than five grams of crack cocaine, in violation of 21 U.S.C. § 846, and (2) money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). Appellant Phillip Wayne Green (" Green" or " Appellant Green" ) was convicted on the drug conspiracy count described above after a joint trial with Boyd. In these consolidated appeals from final judgments of sentence, Boyd challenges numerous rulings of the district court, including but not limited to its denial of his motion for judgment of acquittal and its denial of his pretrial motion to suppress evidence. Appellant Green limits his appellate challenge to a contention that the district court erred when it denied his motion for judgment of acquittal. For the reasons set forth within, we find no merit in the Appellants' contentions. Accordingly, we affirm.

I.

This prosecution arose from a largely family-based, years-long drug distribution network in which members of the conspiracy transported multi-kilogram quantities of cocaine by automobile from South Florida to the Tidewater Region of Virginia. On January 11, 2006, a grand jury returned a 16-count indictment against seven individuals: Fitz Gerald Green, Rohan Green, Glasford Green (the three of whom are brothers and may be referred to jointly hereafter as " the Green brothers" ), Gladstone McIntosh, Gladstone Duncan, and the Appellants Boyd and Green (the latter of whom is not related to the Green brothers). J.A. 39-74.1 All of the Green brothers named in the indictment pled guilty pursuant to plea agreements and testified against the Appellants, as did others who were also involved in the criminal network but were charged separately. The Appellants were charged as follows: Boyd, in three indictment counts, namely drug conspiracy, money laundering conspiracy, and use of a communication facility (" the telephone count" ) in furtherance of the drug conspiracy, in violation of 21 U.S.C. § 846, 18 U.S.C. § 1956(h), and 21 U.S.C. § 843, respectively; Green, in six indictment counts, namely drug conspiracy, money laundering conspiracy, use of a communication facility (" the telephone count" ) in furtherance of the drug conspiracy, and three separate substantive counts

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of possession with the intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 846, 18 U.S.C. § 1956(h), 21 U.S.C. § 843, and 21 U.S.C. § 841(a)(1) and (b)( l )(B)(ii), respectively.

On October 25, 2006, the Appellants were arraigned and pled not guilty. Appellant Boyd filed a timely pretrial motion to suppress $54,020 in United States currency agents had seized from his Florida home on the morning of his arrest. On August 16, 2007, the district court conducted an evidentiary hearing on the motion. For reasons stated on the record at the conclusion of the hearing, the court found that the currency had been seized in plain view during a constitutionally permissible protective sweep of Boyd's home; it therefore denied the motion to suppress. J.A. 172-77, 179.2 On August 20, 2007, jury selection began, during which Boyd made a Batson objection based on the Government's use of its peremptory challenges to strike teachers from the jury venire.3 J.A. 180. After argument by counsel, the district court overruled the objection, reasoning that the strikes were not constitutionally prohibited. J.A. 188-89.4

The trial proceeded and on August 28, 2007, the Government rested its case. Each of the Appellants moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that, in various respects, the evidence adduced by the Government at trial was insufficient to prove any of the charges against them. J.A. 682-87. The district court reserved ruling on the motions for judgment of acquittal. Boyd then presented evidence and rested. Green rested without presenting evidence. After the Appellants renewed their motions for judgment of acquittal, the Government withdrew Count 12 (the telephone count) as to Boyd and Count 3 (money laundering conspiracy) as to Green. J.A. 360-70, 692, 695, 699. The district court further deferred ruling on the Rule 29 motions. J.A. 687.

In connection with the jury charge, Boyd's counsel timely excepted to the district court's failure to include Boyd's " theory of defense" instruction. J.A. 377; 710-11.5 During closing argument, Boyd objected when counsel for the Government commented on certain behaviors engaged in by Boyd's counsel during the trial. The district court overruled the objection.6

The jury returned guilty verdicts on both counts submitted to them as to Boyd: drug conspiracy and money laundering conspiracy. The jury found Green guilty only of the drug conspiracy; it found Green not guilty on the telephone count, and it failed to reach a verdict as to the three substantive drug distribution counts. The district court declared a mistrial on the latter counts.

On September 28, 2007, Boyd filed a renewed motion for judgment of acquittal and a motion for a new trial. J.A. 30, 387A. Green also renewed his own motion for judgment of acquittal. J.A. 388-90. After hearing extensive argument from counsel, the district court denied those motions

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on December 7, 2007. J.A. 391-419, 439, 446.7 The same day, the district court conducted a sentencing hearing. The court sentenced Boyd to 360 months of imprisonment on the drug conspiracy count and 240 months of imprisonment on the money laundering conspiracy count, to be served concurrently, and a period of supervised release. J.A. 475. The court sentenced Green to 151 months of imprisonment and a period of supervised release. J.A. 431. The district court entered its judgments on December 20, 2007. Green and Boyd filed timely Notices of Appeal and we consolidated the appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

As previously indicated, most of the testimonial evidence against the Appellants came from other participants involved in the years-long enterprise to supply " wholesale" quantities of cocaine from South Florida to dealers in Virginia. In addition to highly detailed inculpatory testimony from the Green brothers, who were co-defendants in the same indictment as the Appellants and who transacted numerous drug deals with both of the Appellants, the jury heard from two additional cooperating witnesses who testified pursuant to plea agreements: Brenton Shand (a cousin of the Green brothers) and Raymond Edwards. Despite vigorous cross-examination of the cooperating witnesses by counsel for the Appellants, the jury was entitled to credit so much of their testimony as it found to be accurate, truthful, and probative, and to find, ultimately, that the Government established the vast bulk of its allegations beyond a reasonable doubt. We briefly summarize some of that evidence.

Brenton Shand began cooperating with the Government after he was arrested in June 2001 in Newport News, Virginia. At the time of Shand's arrest, law enforcement officers recovered $300,000 in drug proceeds and three to four kilograms of cocaine from his residence. Shand testified that Appellant Green had delivered the cocaine to him. Shand had first met Green in Florida in 1996 through a drug dealer who had previously supplied Shand with drugs. During that early 1996-98 period, Shand sometimes worked with Fitz Gerald Green to unload cocaine from cars driven to Virginia from South Florida. The cars were packed at the Florida residence of Rohan Green and then driven to Virginia by various individuals, among them, Gladstone McIntosh and Appellant Green.8 During 1996 and 1997, Green drove multiple carloads of cocaine to Newport News from Florida, where he picked up the drugs from Rohan and Fitz Green. In early 2001, Shand relocated on a temporary basis to Florida because he believed (correctly) that he was being investigated in Virginia by law enforcement as a result of his narcotics activity. While in Florida, Appellant Green contacted him about distributing 30 kilograms of cocaine. Green wanted Shand to drive with the drugs to Virginia. Shand agreed to sell the drugs but ultimately did not drive the drugs to Virginia from Florida. During the summer of 2001, Appellant Green and Shand met in Newport News and Green delivered six kilograms of cocaine to Shand over the course of three days. The Government

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