U.S. v. Mark

• Decision Date: 12 September 1991
• Docket Number: No. 90-5338,90-5338
• Citation: 943 F.2d 444
• Parties: 33 Fed. R. Evid. Serv. 1457 UNITED STATES of America, Plaintiff-Appellee, v. Glen MARK, Jr., Defendant-Appellant. Fourth Circuit
• Court: U.S. Court of Appeals — Fourth Circuit

Page 444

943 F.2d 444

33 Fed. R. Evid. Serv. 1457

UNITED STATES of America, Plaintiff-Appellee, v. Glen MARK, Jr., Defendant-Appellant.

No. 90-5338.

United States Court of Appeals,Fourth Circuit.

Argued May 10, 1991.

Decided Aug. 22, 1991.

As Amended Sept. 12, 1991.

David Ferris Tamer, Winston-Salem, N.C., argued for defendant-appellant.

Harry L. Hobgood, Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before RUSSELL and WILKINSON, Circuit Judges, and HALLANAN, U.S. District Judge for the Southern District of West Virginia, sitting by designation.

OPINION

HALLANAN, District Judge:

Defendant-Appellant Glen Mark, Jr., appeals from the district court's admission during his trial of extrinsic act evidence and subsequent determination of relevant conduct drug amounts in calculating a base offense level for sentencing purposes.

I.

On October 31, 1989, a one count indictment was returned against Mark, George Thomas Brincefield, and Michael Vincent Wall charging them with conspiracy to possess cocaine with intent to deliver in violation of 21 U.S.C. §§ 812 and 841(a)(1). More specifically, the indictment alleged that Mark, Wall, and Brincefield had conspired to buy five kilograms of cocaine for $100,000.00 from an undercover agent.

Testimony provided by Government witnesses at the subsequent trial established that in July 1989, Phillip E. Sweatt, Jr., an undercover narcotics agent with the North Carolina State Bureau of Investigation, was introduced to Wall who had been making inquiries concerning the purchase of large quantities of cocaine at the request of his employer, Mark, who operated a garage in Reidsville, North Carolina. During the afternoon of September 27, 1989, Agent Sweatt, who had assumed the undercover persona of a large scale cocaine dealer, travelled to Mark's garage and indicated to Wall that he could supply Mark with five kilograms of cocaine for $100,000.00. After conferring with Mark, Wall responded that the quantity and purchase price was acceptable to Mark.

Mark already had a purchaser for the drugs in mind because Brincefield had earlier offered to pay Mark $22,000.00 for each kilogram he could supply when Mark indicated the previous Saturday that he was in negotiations with Agent Sweatt for the purchase of additional cocaine. Brincefield had met Mark in 1984 and since that time had conducted transactions with Mark on a regular and frequent basis purchasing approximately 80 kilograms from Mark, with payment in excess of $1,000,000.00. Brincefield arrived at Mark's garage on September 27, 1989, shortly after Agent Sweatt's departure. After Mark indicated to Brincefield that he was now in the position to obtain the five kilograms, Brincefield offered to purchase all five kilograms at the same price he had previously offered, in addition to which he proposed to give Mark and Wall each one ounce of the cocaine as a commission. Mark agreed to pay Wall $2,500.00 as a payment for his assistance in arranging the transaction while intending to keep the remainder of the $10,000.00 profit for himself.

Mark and Wall then made arrangements to meet Agent Sweatt at his hotel room in the local Holiday Inn later that same evening to purchase the cocaine. Mark intended to deliver the cocaine to Brincefield at the garage after concluding the transaction with Agent Sweatt. Mark and Wall left for the Holiday Inn in a BMW that was being repaired at the garage. When they approached the hotel, Mark instructed Wall to drop him off at a nearby Gulf station. Wall was to conduct the transaction with Agent Sweatt alone and then return for Mark so they could arrive at the garage together for their meeting with Brincefield. The authorities, however, arrested Wall when he met with Agent Sweatt. They then apprehended Brincefield at the garage, while Mark voluntarily turned himself in later.

Mark admitted after his arrest that he had ridden with Wall to the vicinity of the Holiday Inn and that there was a large amount of money in the automobile but denied having any involvement in the drug transaction. In conformity with his proclamation of innocence, Mark pled not guilty during his arraignment on November 6, 1989, which was held before the Honorable N. Carlton Tilley, United States District Judge for the Middle District of North Carolina. Trial was then scheduled to begin on December 11, 1989. After several brief continuances, Mark's jury trial began on January 16, 1990, before the Honorable Richard C. Erwin, Chief United States District Judge for the Middle District of North Carolina.

During the Government's case-in-chief, pursuant to Fed.R.Evid. 404(b), Chief Judge Erwin allowed Wilberto Rodriguez to testify concerning his previous drug sales with Mark over defense counsel's objections. Rodriguez testified that he had met Mark in 1984 at which time he began selling large quantities of cocaine to him. Rodriguez further testified that by 1985 he was delivering between two and nine kilograms of cocaine per month to Mark in North Carolina. Rodriguez claimed that Mark was one of his largest customers and that Mark had continued purchasing from him until 1989. Rodriguez estimated that altogether Mark had purchased between 80 and 100 kilograms of cocaine from him at an average price of $20,000.00 to $25,000.00 per kilogram. Prior to Rodriguez's testimony, Brincefield had testified concerning his previous drug transactions with Mark without objection.

After the close of the Government's case-in-chief, Chief Judge Erwin denied defense counsel's motion for judgment of acquittal. During the presentation of Mark's defense, defense counsel called several witnesses, including Mark's wife, who testified that to their knowledge Mark had never sold or bought drugs. During such time Mark also took the stand in his own behalf and contended that he had never sold drugs to Brincefield nor purchased them from Rodriguez. Mark claimed during his testimony that he had only ridden with Wall to the vicinity of the Holiday Inn so as to get something to eat. Mark alleged that after he discovered the large amount of money in the car he became suspicious and inquired of its purpose. After being told by Wall that he was going to meet his cousin with the money "to do something," Mark insisted that Wall drop him off at a cafe which happened to be in the vicinity of the Holiday Inn. When Wall did not return for him Mark then called his wife to pick him up at the cafe.

Chief Judge Erwin denied defense counsel's renewed motion for judgment of acquittal at the close of all evidence; and while not having given a limiting instruction concerning the proper use of Rule 404(b) evidence during the testimony of Rodriguez or Brincefield, Chief Judge Erwin did sua sponte give a limiting instruction in such regard during his closing charge to the jury. After deliberation, the jury found Mark guilty on January 18, 1990.

On April 19, 1990, Chief Judge Erwin held a sentencing hearing where he adopted the probation officer's assignment of a base offense level of 36 pursuant to U.S.S.G. § 2D1.1 for offenses which involve a total of between 50 and 150 kilograms of cocaine. In doing so, Chief Judge Erwin rejected defense counsel's argument that only the five kilograms charged in the indictment should be used to determine Mark's base offense level and that the probation officer had erred in adding to that amount those drugs involved in previous transactions between Mark and Brincefield. As a result of Judge Erwin's findings, Mark was sentenced to 250 months in prison, five years supervised release, and a $50.00 special assessment. On May 1, 1990, defense counsel filed written notice of this appeal.

II.

Mark's first contention on appeal is that the district court erred in permitting Rodriguez to testify concerning his prior drug transactions with Mark. Mark claims that such evidence served no valid purpose under Fed.R.Evid. 404(b) while being both unnecessary and highly prejudicial. Mark further contends that such prejudice was heightened by the district court's failure to give a limiting instruction at the time of the testimony as opposed to the time of the final charge.

On appeal, a district court's admission of extrinsic act evidence may only be overturned for an abuse of discretion. United States v. Haney, 914 F.2d 602, 607 (4th Cir.1990). Upon review of the record, we conclude for the following reasons that the district court did not abuse its discretion in admitting the testimony of Rodriguez.

Fed.R.Evid. 404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This Court has interpreted Rule 404(b) to permit the admissibility of extrinsic acts when they are "(1) relevant to an issue other than character, (2) necessary, and (3) reliable." United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988). We have subscribed to the view of the rule as an "inclusionary rule" which " 'admits all evidence of other crimes relevant to an issue in a trial except that which tends to prove only criminal disposition.' " United States v. Masters, 622 F.2d 83, 85 (4th Cir.1980) (quoting J. Weinstein & M. Berger, Weinstein's Evidence § 404 at 404-41 and 404-42 (1979)).

Of course evidence which is offered for a proper purpose under Rule 404(b) may still be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403; accord Masters 622 F.2d at 87.

As noted by the government, a defendant's...