U.S. v. Campbell
| Decision Date | 09 November 1992 |
| Docket Number | No. 91-5882,91-5882 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Howard Quinton CAMPBELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Harry F. Hambrick, Jr., Roanoke, Va., argued, for defendant-appellant.
Stephen Urban Baer, Asst. U.S. Atty., Roanoke, Va., argued (E. Montgomery Tucker, U.S. Atty., on brief), for plaintiff-appellee.
Before MURNAGHAN and HAMILTON, Circuit Judges, and LEGG, United States District Judge for the District of Maryland, sitting by designation.
Appellant Howard Quinton Campbell was convicted of various drug-related offenses and sentenced to ten years in prison. Campbell challenges his conviction and sentence on several grounds. For the reasons set forth below, we affirm the decision of the district court.
This case arises out of an undercover sting operation aimed at an outdoor crack cocaine market in Roanoke, Virginia. As part of the operation, Officer Kirk Hubbard of the Roanoke City Police Department worked as an undercover agent; Campbell was one of his targets.
The sting operation took place over a four-day period and involved several drug transactions between Hubbard and Campbell. The first meeting was on December 3, 1990, when Hubbard purchased two rocks of crack cocaine from Campbell for fifty dollars.
The next morning Hubbard returned to the outdoor market and purchased five more rocks of crack cocaine for one-hundred dollars. Later that same afternoon, Hubbard, equipped with a miniature tape recorder and carrying five-hundred dollars, returned to the area. While Hubbard was waiting for Campbell, he observed a transaction taking place between Campbell, Barry Lee Beamer, Campbell's co-defendant at trial, and an unidentified female. Hubbard testified that he heard Campbell instruct Beamer to "get her," which, according to Hubbard, meant to sell crack cocaine to the female. Beamer then sold an unspecified amount of crack to the woman. Soon after that transaction, Hubbard completed his third deal with Campbell: Hubbard handed Beamer five-hundred dollars, Beamer counted the money, and then Campbell provided Hubbard with approximately twenty rocks of cocaine.
The final transaction in the sting operation took place two days later when Hubbard purchased another two rocks from Campbell for forty-five dollars.
Based on these activities, a grand jury returned, on January 16, 1992, a four-count indictment against Campbell: (1) conspiracy to distribute crack cocaine, 21 U.S.C. § 846; (2) two counts of distributing less than five grams of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(C); and (3) distributing five grams or more of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2.
Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851, which informed Campbell that if he was convicted, the government would seek to enhance his sentence under 21 U.S.C. § 841(b)(1)(C) because he was a repeat offender with a previous Virginia state drug conviction.
On May 23, 1991, thirty-two individuals from a pool of randomly selected registered voters were summoned for jury service in this case in the United States District Court for the Western District of Virginia, Roanoke Division. Only one of the persons on the venire panel was black. The government used a peremptory strike to excuse that juror, and Campbell made a Batson 1 motion in opposition. The district court held a hearing on the motion, and counsel for Campbell questioned the Assistant United States Attorneys as to their reasons for striking the juror. The attorneys explained that the juror was one of many who were struck because they were victims of crime. Campbell offered no evidence that this justification was pretextual. The district court then denied Campbell's Batson motion. Following a two-day trial on May 23-24, 1991, the jury returned a verdict of guilty on all counts.
After the conviction, but prior to sentencing, the government filed a motion to amend its section 851 information. The government contended that because of a clerical mistake, the original information sought enhancement pursuant to section 841(b)(1)(C), but instead should have referenced section 841(b)(1)(B). 2
After his conviction, but prior to sentencing, Campbell filed a motion challenging the government's intention to enhance his sentence because of a prior state conviction. Campbell had been sentenced under a Virginia deferral statute that applies to individuals with no prior record who are charged with simple possession of drugs, without intent to distribute. The statute permits the state judge, without entering a judgment of guilt, to place the defendant on probation. If the first-time offender successfully completes the sentence of probation, then his criminal record is expunged. If, however, the offender violates the terms of probation, the court may revoke probation, reopen the case, adjudge the defendant guilty, and impose a new sentence. Va.Code § 18.2-251.
Under the deferral statute, a Virginia state court sentenced Campbell to a term of probation on May 24, 1990, which was prior to the December 1990 offense dates charged in the federal indictment. Because Campbell violated probation, the state court revoked the deferral and entered a final state conviction on March 12, 1991. This occurred prior to Campbell's federal trial and sentencing.
The district court held a full motions hearing at which Campbell was represented by counsel. The district judge heard argument regarding (i) the proposed amendment to the information and (ii) whether the May 24, 1990 Virginia deferral order amounted to a "prior conviction" for purposes of the sentencing enhancement provisions of section 841. Title 21, United States Code, section 841(b)(1)(B) states in pertinent part:
If any person commits such a violation after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a State ... relating to narcotic drugs ... have become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment.
At the conclusion of the hearing, the district court permitted the government to amend because the original information gave Campbell notice of the prior state criminal proceeding on which the government intended to rely; the citation to the wrong subsection of section 841 had not prejudiced Campbell in any way. Concluding that the deferred state sentence constituted a prior conviction for purposes of enhancing Campbell's sentence under section 841, the district court then imposed the ten-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B).
This appeal followed on five issues: (1) whether the district court erred in denying the defendant's Batson motion; (2) whether there was sufficient evidence from which the jury could infer a conspiracy between Campbell and Beamer; (3) whether Campbell's prior state deferred sentence amounted to a conviction for purposes of 21 U.S.C. § 841; (4) whether the district court erred in permitting the government to amend the information after the trial; and (5) whether the district court erred in failing (i) to inquire specifically whether Campbell affirmed or denied his prior state conviction and (ii) to advise Campbell that any challenge to the prior conviction must be raised before his sentence was imposed. 21 U.S.C. § 851(b).
The first issue is whether the district court erred in rejecting the defendant's Batson challenge. The district court's decision will be reversed only if it was clearly erroneous. United States v. Grandison, 885 F.2d 143 (4th Cir.1989).
In United States v. Joe, 928 F.2d 99 (4th Cir.1991), this Court established a burden-shifting framework when a Batson challenge has been made. The defendant establishes a prima facie case of discrimination by showing that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant must show facts sufficient to raise an inference of discriminatory intent by the government based on all of the relevant circumstances. Joe, 928 F.2d at 102. After the defendant presents a prima facie case of discrimination, the government must come forward with a racially neutral explanation for the use of its peremptory challenges. If the government offers explanations that are facially neutral and related to the case, a defendant may, nevertheless, meet his burden of establishing purposeful discrimination by proving that the prosecutor's explanations are pretextual. 3 Id.
In this case, both the defendant and the struck juror are black. Although a prima facie case of discrimination does not arise every time a prosecutor strikes a black prospective juror, the district court found that Campbell had established a prima facie case. Where, as here, the district court determined that a prima facie case was made out by the defendant and a hearing was held, this Court will proceed to consider the government's proffered explanations for the use of its strike. Joe, 928 F.2d at 103; United States v. Lane, 866 F.2d 103, 105 (4th Cir.1986).
In Campbell's case, the government explained that the sole black venire member was struck because she was among a group of potential jurors whom the government intended to strike because they were victims of crime and might have, therefore, been dissatisfied with the police. This rationale qualifies as a facially neutral basis for the government's decision to strike the woman from the venire panel.
In an attempt to show pretext, defense counsel was permitted to conduct direct examination of the Assistant United States Attorneys to inquire about their reasons for exercising the...
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