U.S. v. Dorlouis

• Decision Date: 24 February 1997
• Docket Number: Nos. 96-4329,s. 96-4329
• Citation: 107 F.3d 248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Philippe DORLOUIS, a/k/a Terrance, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jacques PAUL, a/k/a Earl Phillip, a/k/a "E", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marc CHARLES, a/k/a "K", a/k/a Carlo Pierre, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Najac PAUL, a/k/a Joseph Derrick, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sallie SCHULTZ, Defendant-Appellant. to 96-4333.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 248

107 F.3d 248

65 USLW 2616

UNITED STATES of America, Plaintiff-Appellee, v. Philippe DORLOUIS, a/k/a Terrance, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jacques PAUL, a/k/a Earl Phillip, a/k/a "E", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Marc CHARLES, a/k/a "K", a/k/a Carlo Pierre, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Najac PAUL, a/k/a Joseph Derrick, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Sallie SCHULTZ, Defendant-Appellant.

Nos. 96-4329 to 96-4333.

United States Court of Appeals Fourth Circuit.

Argued Nov. 1, 1996.

Decided Feb. 24, 1997.

ARGUED: Michelle Marie Memena Price, King, Allen & Guthrie, Charleston, WV, for Appellants. Philip Judson Combs, Assistant United States Attorney, Charleston, WV, for Appellee. ON BRIEF: Michael R. Cline, Michael R. Cline Law Offices, Charleston, WV, for Appellant Dorlouis; Christopher J. Heavens, Heavens Law Offices, Charleston, WV, for Appellant Charles; Douglas Miller, Sr., Institute, WV, for Appellant Paul; Andrew A. Raptis, Charleston, WV, for Appellant Schultz. Rebecca A. Betts, United States Attorney, Miller B. Bushong, Assistant United States Attorney, Charleston, WV, for Appellee.

Before MURNAGHAN and WILLIAMS, Circuit Judges, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Senior Judge HARVEY wrote the opinion, in which Judge MURNAGHAN and Judge WILLIAMS joined.

OPINION

ALEXANDER HARVEY, II, Senior District Judge:

The five appellants bringing this appeal were convicted by a jury of conspiring to distribute crack cocaine and of related offenses. They here challenge their convictions on numerous grounds. Additionally, appellant Najac Paul appeals the sentence he received. Because we conclude that all five appellants were properly arrested, charged and convicted and that their other assignments of error are without merit, we affirm their convictions. We also affirm the sentence received by appellant Najac Paul.

I

In mid-July of 1995, Yvonne Renee Moore met appellant Sallie Schultz while Moore was working as a prostitute for Annie's Escort Service in Charleston, West Virginia. Moore told Schultz that she wanted to make some extra money. Schultz then arranged for Moore to meet appellants Philippe Dorlouis and Najac Paul who came to Moore's apartment in a housing project in mid-August of 1995. Dorlouis and Najac Paul gave Moore a half ounce of crack cocaine to sell. Moore was to sell twenty-one "rocks" for $40 and was to repay $700 to these appellants, retaining $140 for herself. An admitted crack addict, Moore smoked some of the cocaine and lost the rest. Fearing that Dorlouis and Najac Paul would injure her if she did not pay what she owed them, Moore on August 28, 1995 contacted Charleston police officer William Hart, a member of the city's Metropolitan Drug Enforcement Network Team ("MDENT"). Moore agreed to work for this law enforcement agency as a confidential informant.

Moore was given $700 in marked money to pay her debt. After Moore had telephoned them, appellants Jacques Paul and Marc Charles and also appellant Schultz met with Moore at her apartment on the afternoon of August 29, 1995. Her telephone calls were monitored and recorded by MDENT officers. Moore paid Jacques Paul and Charles the $700 she owed for the crack given to her the prior week. Charles then gave Moore an additional bag containing 2.89 grams of crack and told her that she could pay him $275 later. Moore told Charles and Jacques Paul that she had a buyer for one ounce of crack. Charles informed her that this would cost approximately $1,550. After her meeting with these three appellants, Moore met with officers of MDENT and gave them the 2.89 grams of crack which she had received from Charles.

Later that same day, Moore returned to the MDENT office and called the pager number given to her. Charles returned her call around 9:00 p.m. and told her that the ounce of crack was available for $1,550. The officers fitted Moore with a body wire and provided her with $1,600 in marked money. At approximately 11:20 p.m., a surveillance team observed a 1992 Nissan Pathfinder, occupied by four black males, arrive at the housing project where Moore lived. Two of the individuals remained in the vehicle and two walked into the housing project. In her apartment, Moore met with Najac Paul and Dorlouis, who sold her 25.6 grams of crack for $1,600. Najac Paul and Dorlouis then left Moore's apartment with the money and got into the Pathfinder. Moore left her apartment, met with Officer Hart and gave him the 25.6 grams of crack which had been sold to her.

Shortly thereafter, the Nissan Pathfinder was stopped by officers on the Patrick Street Bridge in Charleston. At the time of the stop, Dorlouis was driving and Jacques Paul, Najac Paul and Charles were in the vehicle. These four appellants were arrested and searched, as was the vehicle. Jacques Paul was found to have in his pants pocket a baggie containing 6.46 grams of crack. He was later asked to remove his clothes, and $1,600 in marked money fell from his boxer shorts as he was undressing. In the vehicle's console, the officers recovered $985. Five Hundred Dollars of this sum was identified as being a part of the $700 in recorded money which Moore had given to Jacques Paul and Charles as a part of the earlier deal.

A superseding five-count indictment was later returned by a federal grand jury. Count One charged all five appellants with a conspiracy to distribute and possess with intent to distribute cocaine base, also known as "crack," during the period from July of 1995 until August 29, 1995. Count Two charged Dorlouis, Najac Paul and Schultz with aiding and abetting in the distribution of a quantity of crack, this being the one-half ounce of crack initially fronted to Moore in mid-August of 1995. Count Three charged Jacques Paul, Charles and Schultz with aiding and abetting in the distribution of a quantity of crack, this being the 2.89 grams of crack given to Moore in the afternoon of August 29, 1995. Count Four charged Dorlouis, Jacques Paul, Charles and Najac Paul with aiding and abetting in the distribution of a quantity of crack, this being the 25.6 grams of crack sold to Moore during the night of August 29, 1995 for $1,600. Count Five charged Jacques Paul with possession of crack with intent to distribute, this being the 6.46 grams of crack which were found in his pocket at the time of his arrest a few minutes after midnight on August 30, 1995.

Numerous pretrial motions were filed by the appellants and were denied by the district judge. In particular, motions to suppress evidence seized from the Pathfinder and from Jacques Paul on August 30, 1995 were denied, as was the motion of Jacques Paul to dismiss the superseding indictment on the ground that the Speedy Trial Act had been violated. The trial was originally set for November 20, 1995, but when Moore could not be located shortly before that date, the trial was rescheduled for December 18, 1995. Following a four day trial, the jury returned with verdicts of guilty as to each defendant on each of the counts in which he or she was charged. Defendants then filed a motion for a new trial, contending that Moore had committed perjury during her trial testimony. Following an evidentiary hearing, that motion was denied by the district judge.

A sentencing hearing was later held, at which the court heard testimony relating to relevant conduct of each of the appellants and the quantity of drugs to be assessed against each. All five appellants received lengthy sentences. Dorlouis was sentenced to a term of 121 months imprisonment, and Charles received 120 months. Jacques Paul was sentenced to 97 months imprisonment, and Najac Paul was sentenced to 168 months imprisonment. Schultz received a sentence of 78 months. Substantial terms of supervised release were added to the prison terms imposed by the district judge.

Appellants have timely filed these appeals.

II

All five appellants first argue that their right to due process of law was violated when the superseding indictment failed to indicate the specific quantity of crack involved in the various offenses. Counts Two, Three, Four and Five all charged a violation of 21 U.S.C. § 841(a)(1). Following convictions of appellants under those Counts, the sentences which might be imposed were subject to enhancement pursuant to 21 U.S.C. § 841(b).

Counts Two, Three, Four and Five each charged offenses involving the distribution of "a quantity of cocaine base, also known as 'crack'." None of the Counts thus alleged the specific amounts of crack distributed by appellants. According to appellants, since the superseding indictment failed to specifically allege the amount of crack involved, their right to due process of law was violated because the indictment failed to notify them that they would be subject to enhanced penalties under § 841(b) if convicted. Whether an indictment must allege the amount of crack involved is an issue of law which we review de novo. United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1890, 135 L.Ed.2d 184 (1996).

Appellants' due process argument overlooks the distinction between facts relevant to guilt and those that pertain to the severity of punishment. Because the amount of the drugs goes only to the sentence rather than to guilt, the quantity of drugs involved in an offense is not a substantive element of the crime which must be charged and proved at trial. United States v. Fletcher, 74 F.3d 49, 53 (4th Cir.) cert. denied, --- U.S. ----, 117 S.Ct. 157, 136 L.Ed.2d 101 (1996); cf. United States v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir.), cert. denied, 511 U.S. 1148, 114 S.Ct. 2178, 128 L.Ed.2d 897 (1994) (holding that the date specified in the indictment is not a...