U.S. v. Ford

• Citation: 88 F.3d 1350
• Decision Date: 15 July 1996
• Docket Number: 93-5097,93-5152,92-5809,93-5080,93-5071,Nos. 92-5767,92-5768,92-5802,93-5313 and 93-5362,93-5180,92-5781,s. 92-5767
• Parties: 45 Fed. R. Evid. Serv. 174 UNITED STATES of America, Plaintiff-Appellee, v. Melvin A. FORD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cynthia Evette BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carlos Edwin McGILL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Dewayne SHORT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eric S. BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Norman O'Neal BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter Trevaughn SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Andrew REID, a/k/a U.S., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roderick BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hassan Lafiek SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Antonio WILLIAMS, a/k/a John Doe, a/k/a Gibby, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Steven SMITH, a/k/a Black Mike, a/k/a Smitty, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1350

88 F.3d 1350

45 Fed. R. Evid. Serv. 174

UNITED STATES of America, Plaintiff-Appellee, v. Melvin A. FORD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Cynthia Evette BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Edwin McGILL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Dewayne SHORT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Eric S. BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Norman O'Neal BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Walter Trevaughn SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Andrew REID, a/k/a U.S., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Roderick BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Hassan Lafiek SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Robert Antonio WILLIAMS, a/k/a John Doe, a/k/a Gibby,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Steven SMITH, a/k/a Black Mike, a/k/a Smitty,

Defendant-Appellant.

Nos. 92-5767, 92-5768, 92-5781, 92-5802, 92-5809, 93-5071,

93-5080, 93-5097, 93-5152, 93-5180, 93-5313 and 93-5362.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 8, 1995.

Decided July 15, 1996.

ARGUED: John David Ash, Baltimore, Maryland; James Christopher Savage, Law Offices of James Savage, Rockville, Maryland; Arcangelo Michael Timinelli, Baltimore, Maryland; William B. Purpura, Baltimore, Maryland; David Richard Solomon, Baltimore, Maryland; William Scott Little, Stark & Little, Baltimore, Maryland; Colin R. Hueston, Eugene P. Tinari & Associates, Philadelphia, Pennsylvania; Daniel Tisdale, Baltimore, Maryland; Alan Curtis Drew, Upper Marlboro, Maryland, for Appellants. John Vincent Geise, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Eugene Patrick Tinari, Philadelphia, Pennsylvania, for Appellant Eric Brown; C. Michael Walls, Laurel, Maryland, for Appellant Hassan Smith; Gary L. Segal, Rockville, Maryland, for Appellant Michael Smith; Howard L. Cardin, Cardin & Gitomer, P.A., Baltimore, Maryland, for Appellant Cynthia Brown; Kenneth Mack Williams, Baltimore, Maryland, for Appellant Walter Smith; Jeffrey C. Hines, Baltimore, Maryland, for Appellant Roderick Brown. Lynne A. Battaglia, United States Attorney, Barbara S. Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Before RUSSELL and HALL, Circuit Judges, and THORNBURG, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part and vacated and remanded in part by published opinion. Judge RUSSELL wrote the opinion, in which Judge HALL and Judge THORNBURG joined.

OPINION

DONALD S. RUSSELL, Circuit Judge:

This case is the result of an extensive investigation into the cocaine trafficking activities of Paul Winestock, Jr., Norman Brown, and numerous associates. The investigation included court-ordered electronic surveillance on several cellular telephone lines, numerous undercover drug buys made by police agents, and the searches of approximately 32 locations in Maryland, Virginia, the District of Columbia, and Pennsylvania. The investigation led to the indictment of thirty defendants, fifteen of whom were convicted after four separate trials and six of whom entered guilty pleas.

The main trial of seventeen defendants (referred to by the parties as the "Winestock" trial) began on November 4, 1991. The trial continued for sixty-nine trial days and concluded on March 31, 1992. The jury acquitted all of the defendants on the conspiracy counts. ¹ The jury, however, convicted each of the following defendants on at least one substantive count: Paul Winestock, Jr., Norman Brown, Melvin A. Ford, Eric S. Brown, Jeffrey A. Reid, Walter T. Smith, Roderick Brown, Michael D. Short, Carlos E. McGill, Robert A. Williams, and Cynthia E Brown. Except for Paul Winestock, Jr., ² all of these defendants are parties to this appeal. ³

The trial against the other two defendants (the "Smith" trial) began on April 7, 1992. At the completion of the trial, the jury convicted Hassan L. Smith and Michael S. Smith on all counts brought against them. ⁴

The thirteen appellants have raised numerous arguments to their convictions and sentences. We find error only in the sentencing of Jeffrey A. Reid, which we vacate and remand for resentencing. We affirm the convictions and sentences of all of the other appellants.

I.

We first turn to the sentencing of Jeffrey A. Reid, the one issue on which we reverse. Reid was convicted on two counts of possession with intent to distribute crack cocaine. The district court attributed to him eight kilograms of crack cocaine and sentenced him at level 40.

Reid's presentence report assigned three criminal history points to Reid, thus placing him in criminal history category II. He received one point for a 1987 drug conviction in the District of Columbia and two points for a 1987 conviction in the same jurisdiction for unauthorized use of a vehicle. At sentencing, the government presented evidence that Reid had violated the terms of his probation on the drug conviction, for which he received a sentence of 90 days imprisonment. Pursuant to § 4A1.1 of the Sentencing Guidelines, the government added another criminal history point for the violation of probation, which elevated Reid's criminal history category to Category III. Because the government surprised Reid with this information, the district court agreed to sentence Reid at the low end of the Category III range (360 months), with the understanding that the court would reopen the matter if Reid found that the extra criminal history point was wrongly added. The court clearly stated that it would sentence Reid at the low end of the Category II range (324 months) if Reid established that Category II was the appropriate category. After conducting further research, Reid's attorney conceded that the government correctly assigned four criminal history points to Reid.

After sentencing, Reid's attorney learned that the 1987 drug conviction used in the criminal history category determination resulted from Reid's participation as a member of the Winestock group for the distribution of cocaine in Washington. On this appeal, Reid argues for the first time that he should not have received criminal history points for the prior drug conviction because it was part of the same course of conduct as his current convictions. Reid argues that we should subtract the two criminal history points assigned from that conviction and sentence him to the low end of the Category II range. The government concedes that Reid should not have received criminal history points for the 1987 conviction but argues that Reid failed to raise the issue before the district court at sentencing.

A defendant's failure to object to a sentencing issue amounts to a waiver of his right to raise that issue on appeal, absent plain error. United States v. Grubb, 11 F.3d 426, 440 (4th Cir.1993). Under this standard, we must find that (1) an error was committed, (2) the error was plain, and (3) the error affected the defendant's substantial rights. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995). Once these threshold requirements are satisfied, we must also decide whether the error "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." Olano, 507 U.S. at 736, 113 S.Ct. at 1779 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)); Lockhart, 58 F.3d at 88.

There is no question that an error was committed: even the government concedes that Reid erroneously received two criminal history points for a prior conviction that was part of the same course of conduct as his current convictions. The error was plain because, under the Sentencing Guidelines, a defendant should receive criminal history points for a "prior sentence" only if the prior conviction arises from "conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). The error clearly affected Reid's substantial rights because the extra points caused Reid to be sentenced at a more severe guideline range. See United States v. Robinson, 20 F.3d 270, 273 (7th Cir.1994) ("A sentence based on an incorrect guideline range constitutes an error affecting substantial rights and can thus constitute plain error.").

Furthermore, sentencing a defendant at the wrong guideline range seriously affects the fairness, integrity, and public reputation of the judicial proceedings. If we do not correct this error, Reid will serve a term of imprisonment three years longer than required by the sentencing guidelines. ⁵ We cannot casually ignore this fact because of an overly-strict adherence to technical requirements. Three years of a man's life is not a trifling thing. No court of justice would require a man to serve three undeserved years in prison when it knows that the sentence is improper. The fairness, integrity, and public reputation of our judicial system demand that we correct Reid's sentence.

The district court stated at sentencing that it would sentence Reid at the low end of the Category II guideline range (for a level 40 offense) if that criminal history category were appropriate. We therefore vacate and remand Reid's sentence with instructions to resentence him to 324 months imprisonment, the low end of the Category II guideline range.

II.

Having addressed the one issue on which we reverse, we now turn to the numerous issues on which we affirm. We first address the pretrial issues arising from the Winestock trial.

A. Wiretaps

The appellants challenge the government's authority to place wiretaps on the...