U.S. v. Fells, 89-5649

• Decision Date: 10 December 1990
• Docket Number: No. 89-5649,89-5649
• Citation: 920 F.2d 1179
• Parties: 31 Fed. R. Evid. Serv. 1104 UNITED STATES of America, Plaintiff-Appellee, v. Tracy FELLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1179

920 F.2d 1179

31 Fed. R. Evid. Serv. 1104

UNITED STATES of America, Plaintiff-Appellee, v. Tracy FELLS, Defendant-Appellant.

No. 89-5649.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1990.

Decided Dec. 10, 1990.

Alan Hideto Yamamoto, Fairfax, Va., for defendant-appellant.

Liam O'Grady, Asst. U.S. Atty., Alexandria, Va. (Henry E. Hudson, U.S. Atty., Alexandria, Va.), for plaintiff-appellee.

Before WILKINSON and WILKINS, Circuit Judges, and STAMP, United States District Judge for the Northern District of West Virginia, sitting by designation.

WILKINS, Circuit Judge:

Tracy Fells appeals his conviction and sentence for five counts of distribution of crack cocaine. 21 U.S.C.A. Sec. 841(a)(1)-(2) (West 1981). Fells contends that the district court erred in admitting into evidence the details of conversations between Fells and undercover agents that occurred after he committed the charged offenses. He also argues that the district court improperly increased his offense level by 4 based on his role as an organizer of a criminal activity that involved five or more participants.

I.

During an investigation of illicit drug transactions in the Alexandria, Virginia area, Wendell Ford, a police informant and undercover operative, began an effort to purchase crack cocaine from Fells. On December 20, 1988 Ford dialed Fells' pager number. An associate of Fells', Jeff Richardson, returned the page and arranged to meet Ford at a designated location within sight of Fells' residence. Richardson, accompanied by Fells, met Ford, and after Ford paid Fells $600, Richardson gave him a bag containing one-half ounce of crack cocaine.

On January 5, 1989 Ford again dialed Fells' pager. Fells returned this call, told him to contact Richardson, and gave him Richardson's pager number. Richardson and Ford scheduled another meeting, this time at Richardson's residence. On this occasion Ford observed seven, one-half ounce bags of crack cocaine in Richardson's possession, paid him $600, and received one bag.

On January 11, 1989 Fells contacted Ford and offered to sell him more crack cocaine. Ford responded that he would be in touch. Later that day Ford dialed Fells' pager number and when Fells returned the call, Ford offered to purchase two and one-half ounces of crack cocaine. Fells responded that Richardson would call him back. When Richardson called, he and Ford agreed to meet at Richardson's residence. Ford paid Richardson $2,800 and received five, one-half ounce bags of crack cocaine. After the transaction was completed, Ford informed Richardson that he intended to bring a friend with him the next time he bought drugs.

During a chance meeting at a local recreational center on January 27, 1989, Fells asked Ford when he would "be ready to get something else." The next day undercover police officer Scott accompanied Ford to a gasoline station near Fells' residence where Ford signaled Fells by dialing Fells' pager number. A few minutes later, Fells, accompanied by Richardson, met Ford and Scott. Fells instructed Richardson on the amount of crack cocaine to sell to Ford and Scott. After Fells left, Richardson delivered two and one-half ounces of crack cocaine to Scott for which Scott paid $2,800.

On February 4, 1989 Ford contacted Fells from the gasoline station to arrange another crack cocaine purchase. Fells instructed Ford to remain at the station with Scott and that he would send Richardson to meet with them. Richardson again sold two and one-half ounces of crack cocaine to Scott for $2,800.

Through a series of telephone calls on February 11, 1989, Scott attempted to negotiate a purchase of four ounces of crack cocaine from Fells. Fells related that he was attempting to replenish his supply and would soon be able to deliver the requested crack cocaine because he had an associate who was "going to make a move for [him]." Later that day, when Fells was unable to locate an associate he referred to as one of "his boys," he told Scott, "He can't make no move without me anyway, you know what I mean." Scott tape recorded all of his conversations with Fells.

A jury convicted Fells on five counts of distribution of crack cocaine. Fells' base offense level under the sentencing guidelines was 34. U.S.S.G. Sec. 2D1.1(a)(3). ¹ The court found that Fells was a leader or organizer in a criminal activity that involved five or more participants, and increased the base offense level by 4. U.S.S.G. Sec. 3B1.1(a). The court then reduced the offense level by 2 for acceptance of responsibility. U.S.S.G. Sec. 3E1.1(a). Fells' resulting offense level of 36, combined with a criminal history category III, yielded a guidelines range of 235 to 293 months. The court sentenced Fells to a term of imprisonment of 240 months.

II.

At trial the government played the tape recordings of the February 11, 1989 conversations and solicited testimony regarding the circumstances surrounding the conversations. Fells contends that this evidence should not have been admitted because the prejudicial effect of these later bad actions outweighed their probative value to the government's case. Holding that the evidence was relevant under Federal Rule of Evidence 404(b), the district court permitted the jury to receive the evidence.

In determining the admissibility of evidence under Rule 404(b), the court "must balance its probative value, defined as its relevance, necessity, and reliability, against the prejudice to the defendant of admitting the evidence." United States v. Hadaway, 681 F.2d 214, 217 (4th Cir.1982) (citing United States v. DiZenzo, 500 F.2d 263, 266 (4th Cir.1974)). The conversations related temporally and substantively to Fells' alleged crack cocaine distribution network. The district court concluded that the conversations were relevant because they were "so close in time as to be part of a common plan, scheme or design, and would show intent." See Fed.R.Evid. 404(b) (evidence of bad acts admissible to prove intent and plan); see also Hadaway, 681 F.2d at 217 (actions occurring after an event can be strong evidence of intent). Although there was clear evidence of Fells' involvement in drug distribution, he carefully distanced himself from the transactions by using others to actually handle the drugs. These conversations were relevant evidence that supported the proposition that Fells held a position of leadership within the organization and demonstrated his intent in the previous transactions. A verbatim, contemporaneous tape recording of the conversations clearly established the reliability of the evidence.

The district court specifically found that the probative value of the evidence outweighed any prejudice to the defendant. The court of appeals will not disturb an evidentiary decision that involves balancing the probative value of evidence against its prejudicial effect unless the district court abused its discretion. United States v. Ramey, 791 F.2d 317, 323 (4th Cir.1986). We find no abuse of discretion in the district court's ruling.

III.

Because Fells' offenses occurred after November 1, 1987, his sentence is governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. Sec. 3551, et seq. (West 1985 & Supp.1990), and the sentencing guidelines promulgated by the United States Sentencing Commission. Fells contends that the district court erroneously increased his base offense level under the guidelines by 4 for his role in the offense.

A.

A defendant's base offense level should be increased by 4 if he "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. Sec. 3B1.1(a). To be included as a participant, one must be "criminally responsible for the commission of the offense." U.S.S.G. Sec. 3B1.1, comment. (n.1). The district court named five individuals it counted as participants in Fells' organization, including Scott and Ford, but excluding Fells. Neither Scott nor Ford, however, can be counted as a participant in Fells' organization because as government agents neither was criminally responsible for any actions taken in the investigation. Scott was an undercover police officer attempting to gather evidence against Fells by making crack cocaine purchases. United States v. Carroll, 893 F.2d 1502, 1507-09 (6th Cir.1990) (non-culpable government agents not included as participants under U.S.S.G. Sec. 3B1.1). Ford was an informant and undercover operative who had not been involved in Fells' distribution network and was acting at the direction of the government. Cf. United States v. Dyer, 910 F.2d 530 (8th Cir.) (informant involved in drug organization before cooperating with government counted as a participant), cert. denied, --- U.S. ----, 111 S.Ct. 276, 112 L.Ed.2d 232 (1990). Fells, as principal, should be included as a participant. United States v. Preakos, 907 F.2d 7, 10 (1st Cir.1990). If Scott and Ford are not included, and Fells is included, only four criminally responsible individuals were identified by name by the district court as participants in the offenses for which Fells was convicted.

On appeal Fells concedes that the record supports a finding that he supplied crack cocaine to at least 17 other individuals who were themselves distributors, and to whom the district court referred when considering the applicability of a role in the offense adjustment. These individuals were not end users, cf. United States v. Weidner, 703 F.Supp. 1350 (N.D.Ind.1988) (end users not considered in determination of defendant's role as organizer or leader of criminal activity), aff'd, 885 F.2d 873 (7th Cir.1989), but were lower level distributors used by Fells to market illegal drugs. Although not identified by name, they were properly considered by the district court before finding that a 4-level increase for role in the offense applied. ² Thus, the district court finding that this enhancement should apply was not clearly erroneous. United States v....