U.S. v. Levenite

• Decision Date: 10 January 2002
• Docket Number: 00-4198,00-4468,00-4255,00-4199,Nos. 00-4197,s. 00-4197
• Parties: (4th Cir. 2002) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ALAN LEVENITE, a/k/a Nomad, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ALAN LEVENITE, a/k/a Nomad, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAVIS CHAD DAILEY, a/k/a "Taz", Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD FREDERICK CONNOR, a/k/a Phez, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH ALAN WATSON, a/k/a Tank, Defendant-Appellant
• Court: U.S. Court of Appeals — Fourth Circuit

Page 454

277 F.3d 454 (4th Cir. 2002)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ALAN LEVENITE, a/k/a Nomad, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ALAN LEVENITE, a/k/a Nomad, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAVIS CHAD DAILEY, a/k/a "Taz", Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD FREDERICK CONNOR, a/k/a Phez, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH ALAN WATSON, a/k/a Tank, Defendant-Appellant.

Nos. 00-4197, 00-4198, 00-4199, 00-4255, 00-4468

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued October 30, 2001

Decided January 10, 2002

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. (CR-99-23, CR-99-91). [Copyrighted Material Omitted]

[Copyrighted Material Omitted] ARGUED: William James Holmes, Virginia Beach, Virginia, for Appellant Connor; John Warren Hart, JOHN W. HART, P.C., Virginia Beach, Virginia, for Appellant Levenite; Marlin Woodrow Griffin, Jr., Hampton, Virginia, for Appellant Dailey; Douglas Fredericks, Norfolk, Virginia, for Appellant Watson. Fernando Groene, Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Kenneth E. Melson, United States Attorney, Robert J. Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges. Judge Niemeyer wrote the opinion, in which Judge Williams and Judge Michael joined

Affrimed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILLIAMS and Judge MICHAEL joined.

OPINION

NIEMEYER, Circuit Judge:

Michael Levenite, Travis Dailey, Richard Connor, and Keith Watson were convicted of participating in a large-scale methamphetamine trafficking conspiracy in Norfolk, Virginia. Levenite was sentenced to 94 months' imprisonment; Dailey to 174 months; Connor to 21 months; and Watson to 188 months.

On appeal, all four challenge the testimony of an FBI-paid informant who received expenses and could earn, in the discretion of the FBI, an additional $ 100,000 bonus, depending on the informant's cooperation and attainment of the objectives of the investigation. They contend that the use of such testimony violated 18 U.S.C. 201(c) (punishing the bribery of witnesses) and the Due Process Clause of the Fifth Amendment. They also challenge the district court's decision, under Federal Rule of Criminal Procedure 23(b), to permit an 11-person jury to deliberate and reach a verdict when one of the jurors had become ill. Connor and Watson challenge the physical configuration of the courtroom, altered to accommodate a trial involving 13 defendants, arguing that it denied them an ability to look witnesses in the eye and to consult counsel, in violation of the Confrontation and Assistance-of-Counsel Clauses of the Sixth Amendment. Levenite, Dailey and Connor challenge the sufficiency of evidence offered to support their convictions. Finally, Levenite challenges two sentencing decisions.

For the reasons that follow, we affirm.

I

In April 1993, Jeremiah Saucier moved from California to Norfolk, Virginia, for the purpose of distributing methamphetamine with Harold Ratliff. Over the next three years, Saucier organized a coast-to-coast drug distribution network which was supplied by Juan Felix in California. Felix shipped the drugs from California by either FedEx or UPS to Saucier who then distributed them in Virginia to smaller distributors such as Keith Watson and Travis Dailey. Watson and Dailey, in turn, distributed the drugs to yet smaller distributors or to customers. Several members of the conspiracy were also members of the Renegade Motorcycle Club (the "Renegades").

In October 1996, Saucier was involved in a serious motorcycle accident, and William Yates, one of Saucier's customers, took over leadership of the conspiracy until it was terminated by indictments filed in February 1999 and subsequent arrests.

Through the operation of the conspiracy, hundreds of pounds of methamphetamine, worth millions of dollars, as well as smaller amounts of cocaine, were distributed over a period of almost six years.

Investigation of the conspiracy began in earnest when a drug-sniffing dog at the Norfolk airport "alerted on" a package being shipped to Felix in California. The package contained $ 145,000 in U.S. currency that was being sent to Felix in payment for methamphetamine. In addition to using surveillance, court authorized wire taps, and undercover agents, the FBI engaged Robert Lowe as a paid, confidential informant. Lowe, who infiltrated the conspiracy and the Renegades itself and testified at substantial length against the members of the conspiracy at trial, was paid a "salary" as well as expenses. Under his arrangement with the FBI, Lowe could also earn a lump sum payment of up to $ 100,000, at the discretion of the FBI, depending on the extent of his cooperation in the investigation and his effectiveness in helping the FBI attain the objectives of the investigation. Later, before trial, Lowe was placed in the government's witness protection program.

In February 1999, 30 members of the conspiracy were charged with trafficking in methamphetamine and related offenses in a 66-count indictment, and in June 1999, 11 defendants charged in the original indictment were charged in a supplemental indictment with enhancement offenses. The two indictments were thereafter consolidated for trial.

Seventeen of the defendants pleaded guilty, and several of them, including Saucier, Yates, and Felix, testified on behalf of the government at trial. Following trial, the jury acquitted five defendants and found eight guilty of various offenses, including some lesser included offenses. Four convicted defendants -- Levenite, Dailey, Connor, and Watson -- filed this appeal.

II

All defendants on appeal contend that the testimony given by Robert Lowe, a paid confidential informant for the FBI, was incompetent and constitutionally inadmissible. They assert that as part of Lowe's compensation, the FBI agreed to pay Lowe "a lump sum cash 'bonus' of up to $ 100,000.00 which was contingent upon the testimony of Rob Lowe against these defendants and the outcome of this case, including whether convictions against these specific defendants were obtained." Characterizing the arrangement as "extremely disturbing" and offensive, these defendants argue that the FBI's arrangement with Lowe violated 18 U.S.C. 201(c) (punishing bribery of public officials and witnesses) and the Due Process Clause of the Fifth Amendment. Based on these alleged violations, the defendants request a new trial.

The government contends that Lowe "was paid for his truthful testimony" and that procedural safeguards were instituted to protect the defendants from any impropriety, including the government's full pretrial disclosure of the arrangement, the defendants' and court's pretrial review of the arrangement through suppression motions, the defendants' cross-examination of the FBI's case agent and Lowe, the government's corroboration of Lowe's testimony through other evidence, and the court's cautionary instructions to the jury. The government argues accordingly that Lowe's testimony was both competent and admissible.

The FBI first engaged Lowe in September 1996 as a confidential informant who would gather information about drug distribution and the Renegades and would report the information to the FBI. At that time, however, Lowe did not want to testify in any court; his role was to serve "strictly [as] eyes and ears." Approximately a year later, Lowe agreed to become a cooperating witness, subject to direction by the FBI as to "where to go [and] when to go." The relationship was governed by a four-page written agreement between Lowe and the FBI, dated October 15, 1997.

The agreement recited that the FBI was conducting an investigation into racketeering and drug distribution by "an outlaw motorcycle organization known as the Renegades" and that Lowe had information and was willing to "furnish assistance" to the FBI. Under the agreement, Lowe agreed to disclose information to the FBI, to introduce undercover FBI agents to members of the Renegades, to wear wires and make recordings, and to testify in "any and all court proceedings." He agreed not to initiate any criminal acts and not to participate in unlawful acts except as authorized by the FBI. The FBI retained the right to control the investigation, as well as the right to terminate it at any time.

In accordance with the agreement, Lowe received $ 2,000 per month for his services and $ 1,300 per month for his expenses. Later, the FBI also purchased a motorcycle for him so that he could become a member of the Renegades. In addition, the agreement provided for a potential lump-sum payment of up to $ 100,000, at the discretion of the FBI at the end of the case. With respect to this $ 100,000 payment, the agreement provided:

The FBI may, at its sole option and choice, elect to furnish Mr. Lowe with a lump sum of money, not to exceed $ 100,000.00, upon the completion of the investigation. Factors to be considered by the FBI in [determining] the amount shall include, but not be limited to the following: the extent of cooperation in the investigation by Mr. Lowe, the activities of Mr. Lowe in the furtherance of the investigation and in attaining the objectives of the investigation, and the degree of compliance with this Agreement by Mr. Lowe.

The agreement not only made any payment contingent upon Lowe's compliance with the agreement but also upon his maintenance of confidentiality.

After signing the agreement, Lowe worked virtually full time for the FBI in connection with the investigation of the Renegades, and he was elected a member of the Renegade Motorcycle Club. In February 1999, Lowe was formally...