U.S. v. Morsley

• Decision Date: 31 August 1995
• Docket Number: Nos. 94-5203,94-5204 and 94-5223,s. 94-5203
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen MORSLEY, a/k/a Amni Conoa, a/k/a Baldhead, a/k/a Raleek, a/k/a Alan Mosely, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tuval McKOY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Melvin ADAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 907

64 F.3d 907

UNITED STATES of America, Plaintiff-Appellee, v. Allen MORSLEY, a/k/a Amni Conoa, a/k/a Baldhead, a/k/a

Raleek, a/k/a Alan Mosely, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Tuval McKOY, Defendant-Appellant.

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

Nos. 94-5203, 94-5204 and 94-5223.

United States Court of Appeals Fourth Circuit.

Argued July 11, 1995.

Decided Aug. 31, 1995.

ARGUED: Kevin Michael Schad, Cincinnati, OH, for appellant Morsley; Farris Allen Duncan, Langston & Duncan, Goldsboro, NC, for appellant Adams; William Lee Davis, III, Lumberton, NC, for appellant McKoy. John S. Bowler, Assistant United States Attorney, Raleigh, NC, for appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Christine B. Hamilton, Assistant United States Attorney, Raleigh, NC, for appellee.

Before HAMILTON, MICHAEL, and DIANA GRIBBON MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge HAMILTON and Judge MICHAEL joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Three co-defendants appeal their respective conspiracy to possess with intent to distribute cocaine convictions and related drug and weapons convictions. Despite their many assignments of error, we find no basis for reversal of those convictions; however, because in sentencing the district court miscounted the quantity of drugs properly attributable to one of the appellants, we vacate his sentence and remand for resentencing.

I.

In late 1990 or early 1991, appellant Allen Morsley began purchasing illegal guns from Fletcher Johnson through Johnson's intermediary, Stanley Leach. Several months before, Johnson had obtained a federal firearms license to sell guns at the retail level, but he soon became attracted to the increased profits available by selling firearms illegally, without completing the required forms and registering the firearms as mandated by law. Although Morsley attempted to obtain weapons directly from Johnson, because of Morsley's unreliability, Johnson required that all of Morsley's orders be placed with Leach. In all, Morsley purchased thirteen .380-caliber handguns and four Mac-10 semi-automatic assault weapons from Johnson. On at least one occasion, Morsley attempted to trade cocaine for weapons, but Johnson refused.

Appellants Tuval McKoy and Melvin Adams also purchased unregistered weapons from Johnson (as did Lenton Earl Jordan and Clyde Andre Hendricks, both of whom later cooperated with the government against Morsley, McKoy and Adams). Beginning in 1992, McKoy purchased from Johnson five to fifteen weapons every two to three weeks, including several assault weapons and handguns ranging from .25 to .45-caliber. In the course of his weapons dealings with McKoy, Johnson observed several young men entering and leaving McKoy's house. McKoy told Johnson that he had numerous workers who assisted him in his cocaine sales which, according to McKoy, amounted to kilograms per week. McKoy later received from Johnson in exchange for cocaine approximately fifteen guns to be delivered to New York. Adams accepted delivery of the guns he procured from Johnson, via Leach, at his home in Raleigh, North Carolina. During the course of these weapons transactions, Adams also sold cocaine to Leach. In all, Morsley, McKoy, and Adams purchased hundreds of illegal guns from Johnson, many of which they later resold for use in criminal activity in the Raleigh area.

In July of 1993, Morsley, McKoy, and Adams were indicted with six other persons in a 96-count indictment. Each was charged with at least six counts of drug trafficking, wire fraud, and firearms offenses, and each was found guilty of all charges except that Adams was acquitted of a count alleging possession of firearms with obliterated serial numbers. On appeal, appellants raise fourteen challenges to their respective convictions and sentences. Only four merit extensive discussion.

II.

The first of these is an argument that Morsley raises based on Fed.R.Evid. 404(b). Morsley contests the admission of Teshomi Crenshaw's testimony that, on the day Morsley was arrested, she was talking with "Raleek" when the police arrived. According to Crenshaw, "Raleek" then panicked, handed Crenshaw her pocketbook, and asked her to leave. Upon leaving, Crenshaw was stopped by the police, who discovered a bag of cocaine inside her pocketbook. Because all of the conduct charged in the conspiracy indictment took place prior to the day of Morsley's arrest, Morsley argues that Rule 404(b) prohibited the trial court from admitting Crenshaw's testimony as to Morsley's involvement in uncharged drug activity subsequent to the charged conduct.

Although Rule 404(b) operates generally to exclude "[e]vidence of other crimes, wrongs, or acts" offered to demonstrate a propensity to commit the charged act, such evidence is nonetheless admissible if offered for some other purpose, i.e., to demonstrate motive, opportunity, intent, plan, identity, etc. Fed.R.Evid. 404(b). Therefore, a trial court may properly admit evidence of extrinsic acts committed before the crime charged if the evidence is "(1) relevant to an issue other than character, (2) necessary, and (3) reliable." United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988) (footnotes omitted). Moreover, and most importantly here, acts occurring after the charged conduct are also admissible under Rule 404(b) if these three elements are satisfied. United States v. Hines, 717 F.2d 1481, 1489 (4th Cir.1983), cert. denied, 467 U.S. 1214, 104 S.Ct. 2656, 81 L.Ed.2d 363, and cert. denied, 467 U.S. 1219, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984); United States v. Hadaway, 681 F.2d 214, 217 (4th Cir.1982); see also United States v. Miller, 959 F.2d 1535, 1539-40 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992).

As a general matter, Crenshaw's testimony is "sufficiently related to the charged offense" and, therefore, is relevant. Rawle, 845 F.2d at 1247 n. 3. Of course, with respect to Rule 404(b), simple relevance is not enough; the proffered evidence also must be necessary and "relevant to an issue other than character." Id. at 1247 (emphasis added). The government argues that Crenshaw's testimony concerning Morsley's conduct "was highly probative of [Morsley's] motive and intent in the present case." The evidence may be probative as to motive and intent, but it is hardly necessary for it is abundantly clear from Morsley's charged conduct alone, without resort to his subsequent uncharged acts, that he intentionally committed the crimes alleged in the indictment.

Alternatively, the government suggests that Crenshaw's testimony was admissible to prove identity. At the time of his arraignment, Morsley represented to the court that his name was actually Amni Conoa. Although the government produced testimony at trial that Morsley was known by several aliases, including "Raleek," Morsley's attorney steadfastly maintained before the jury that Morsley and "Raleek" were not the same person. As a result, Crenshaw's testimony that she had a conversation with a man named "Raleek" who acted nervously when the police arrived to serve an arrest warrant on an individual named Allen Morsley was indeed relevant and necessary to establish identity. It was also reliable in light of testimony from Johnson, Leach, and Hendricks, corroborating that Morsley was "Raleek." See Rawle, 845 F.2d at 1247. Accordingly, Crenshaw's testimony qualifies as Rule 404(b) evidence and the trial court acted within its discretion in admitting it. ¹

III.

McKoy's most significant claim is that he was denied due process by three separate comments the prosecutor made to the jury during closing argument. One of these allegedly improper comments occurred during the rebuttal argument by the prosecutor, when she said:

What counsel suggests to you that these agents had nothing better to do with their time than to run around and fabricate evidence. They suggest to you that we had to go look for defendants. That's insulting--

McKoy does not specify what he finds objectionable about this statement other than to say that it expresses an "improper personal opinion" of a government witness. In fact, this statement is not an expression of personal opinion by the prosecutor; rather, it is a permissible rebuttal to a defense argument. We therefore find nothing improper in this statement.

The other two prosecutorial comments present more difficult questions. First, in closing argument, the prosecutor stated:

And as far as Tuval McKoy is concerned you really don't have to give much thought to his involvement in the conspiracy, he confessed. He confessed.

McKoy immediately objected to this characterization of the oral statement he made to government agents during plea negotiations. In response to McKoy's request, the court instructed the jury that there was no evidence of a written or signed confession in the record, but rather that the evidence indicated that McKoy had merely "related aspects of his conduct" to government agents.

During the same closing argument, the prosecutor also stated:

Now, as far as Tuval McKoy, you don't even need to consider Count 91 because he stood up and pled guilty to that.

McKoy also objected to this statement and moved for a mistrial, noting that the jury had never received evidence of his plea of guilty to Count 91 of the indictment, nor had McKoy even testified at trial. The court denied the motion for mistrial but instructed the jury as follows:

Members of the jury, I understand there's been a reference to another offense. That has no bearing on this case in any way, shape or form. And the offense to which some reference was made is not for you to consider. It has no bearing on any issue in this case, whatsoever. You should not consider it in any way,...