U.S. v. Myers

• Decision Date: 06 August 1997
• Docket Number: No. 95-6294,95-6294
• Citation: 123 F.3d 350
• Parties: 47 Fed. R. Evid. Serv. 610 UNITED STATES of America, Plaintiff-Appellee, v. Gregory L. MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 350

123 F.3d 350

47 Fed. R. Evid. Serv. 610

UNITED STATES of America, Plaintiff-Appellee, v. Gregory L. MYERS, Defendant-Appellant.

No. 95-6294.

United States Court of Appeals Sixth Circuit.

Argued Oct. 22, 1996.

Decided Aug. 6, 1997.

Paul W. Laymon, Jr. (argued and briefed), Office of U.S. Attorney, Chattanooga, TN, for Plaintiff-Appellee.

Charles P. Dupree (argued and briefed), Chattanooga, TN, for Defendant-Appellant.

Before: MARTIN, Chief Judge; WELLFORD and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which BOYCE F. MARTIN, Jr., C.J., joined. WELLFORD, J. (p. 365), delivered a separate concurring opinion.

OPINION

MOORE, Circuit Judge.

Defendant-Appellant Gregory L. Myers appeals from a jury verdict finding him guilty of aiding and abetting possession with intent to distribute cocaine base ("crack"), a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He contends that the district court erred by (1) admitting his grand jury testimony, (2) admitting prior drug transactions in violation of Federal Rule of Evidence 404(b), and (3) increasing his sentence by including prior drug transactions in the "relevant conduct" analysis. Because the district court did not commit reversible error, we affirm.

I. BACKGROUND

On February 9, 1993, Myers was driving an automobile in Chattanooga, Tennessee with passengers Kelvin Smith in the front seat and Wendell Herron in the back seat. Officer Bobby Dodd of the Chattanooga Police Department stopped the automobile after noticing its expired registration. Officer Dodd then called in the violation and was informed by the dispatcher that Myers's driving privileges had been revoked. Dodd planned to write Myers a citation for the expired registration and allow one of the passengers to drive the automobile. At that point, Smith produced a driver's license and offered to drive. After calling in Smith's driver's license, Officer Dodd learned from the dispatcher that there was a warrant out for Smith's arrest on another charge. Smith was then arrested.

Smith had three bags of crack cocaine, totaling 18.9 grams, in his back pocket. He also had $125 and a set of computerized measuring scales in a pocket of his leather jacket. Under Smith's seat, the officers found more crack cocaine and a 9 mm semi-automatic pistol.

Myers was arrested for driving on a revoked license, and the officers then found $1771 on him. The man in the back seat had no drugs, money, or weapons on himself. He was not charged with any crime and nothing else concerning him is in the record. At the police department, Smith admitted that the drugs found in his pocket were his, but he denied ownership of the crack cocaine and pistol found under his seat.

Smith was indicted on January 11, 1994, on cocaine and weapons charges. He subsequently pleaded guilty to offenses involving the crack cocaine and the pistol and was sentenced to 123 months of incarceration. Myers was not indicted with Smith but was subpoenaed to appear before the same grand jury to testify on January 11, 1994. Although Myers was considered a suspect at this time, the government contends there was insufficient information from which to secure an indictment. Myers was not furnished with a target letter informing him of his status as a suspect. Prior to his testimony, the following on-the-record exchange between the Assistant United States Attorney ("AUSA") and Myers occurred:

[Q]: You have the right to refuse to answer any question if it would incriminate you. Do you understand that?

A. (Nodding head up and down.)

Q. I need a verbal answer, please.

A. Yeah.

Q. Okay. You have a right to consult with an attorney. Do you understand that?

A. Yes.

Q. Okay. Anything you say can be used against you. Do you understand that?

A. Yes.

Supplemental Joint Appendix (Supp. J.A.) at 14. He was not told, however, that if he could not afford a lawyer, one would be provided for him; nor was he told that he was a target or subject of the grand jury investigation. He then gave a lengthy statement to the grand jury. Supp. J.A. at 15-27.

After Smith pleaded guilty, he agreed to testify truthfully against Myers, and his testimony helped lead to Myers's indictment, which was handed down on January 24, 1995. The indictment alleged that Myers possessed cocaine base with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and that he used and carried a firearm during and in relation to drug trafficking, in violation of 18 U.S.C. § 924(c). Both of these counts also alleged that Myers and Kelvin Smith were aided and abetted by each other in the commission of these acts, a violation of 18 U.S.C. § 2. Joint Appendix (J.A.) at 10-11.

Prior to trial, Myers moved to suppress his grand jury testimony, and the district court denied his motion. Also before trial, the government notified him that it planned to introduce evidence from witnesses who claimed that he had sold drugs to them at other times. Myers filed a motion in limine to exclude this evidence pursuant to Federal Rule of Evidence 404(b), and this motion was also denied.

At trial, Myers's grand jury testimony was entered into evidence. Additionally, Smith testified that he and Myers had been selling crack together since 1989, with their business growing over the years. J.A. at 119-43. According to Smith, the relationship ended when they had a falling out in November 1993. J.A. at 187-88. Three other witnesses, Eugene Cobbins, Gary King, and Luther Roberson, also testified that they had purchased cocaine from Myers at various times. Cobbins testified that he had purchased a quarter-ounce of crack cocaine from Myers in the early summer of 1993 and that a few weeks later he purchased a half-ounce of powder cocaine from him. J.A. at 196-99. King testified that Myers sold him a kilogram of powder cocaine in late 1993, J.A. at 214-15, and Roberson testified that Myers sold him four ounces of crack cocaine in late 1993. J.A. at 228-30.

The jury found Myers guilty of the drug charge, but acquitted him of the weapons charge. J.A. at 25. At the sentencing hearing, the district court found much of Myers's conduct, as chronicled in the testimony of Smith, Cobbins, King, and Roberson, to be relevant conduct under the United States Sentencing Guidelines and adjusted Myers's sentence accordingly. J.A. at 260. Myers then filed this timely appeal, contending that the trial court erred on two grounds by admitting his grand jury testimony. He first contends that he should have been given a "target letter" before his grand jury appearance indicating that he was a target of the ongoing investigation. He then argues that because he was not told that a lawyer would be appointed for him if he could not afford one, his grand jury testimony must be suppressed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). According to him, had he been informed of his right to appointed counsel--a right that his argument presupposes he had--he would have exercised that right, and his counsel would have advised him not to incriminate himself. Myers also raises challenges to the admission of the Rule 404(b) evidence and to the district court's relevant conduct analysis.

II. RIGHT TO A TARGET LETTER ¹

A. Constitutional Right

Myers argues that because he was a target of the grand jury investigation, he had a constitutional right to a letter informing him of his target status prior to his testimony. The Supreme Court, however, has rejected this very argument. In United States v. Washington, 431 U.S. 181, 189, 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238 (1977), the Court stated: "Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights." See also United States v. Gillespie, 974 F.2d 796, 800 (7th Cir.1992) ("[The defendant] concedes--as he must--that target warnings are not constitutionally mandated.") (citing Washington, 431 U.S. at 189, 97 S.Ct. at 1819); United States v. Goodwin, 57 F.3d 815, 818 (9th Cir.1995) (same); United States v. Pacheco-Ortiz, 889 F.2d 301, 307 (1st Cir.1989) (same). In light of Washington's pronouncements, Myers's argument that he had a constitutional right to a target letter fails.

B. Department of Justice Policy

It is the Department of Justice's policy to provide a letter and an Advice of Rights form to a "target" or "subject" of the grand jury investigation, warning the witness of his status as a target or subject and of his rights before the grand jury. See U.S. Dep't of Justice Manual § 9-11.150 (1992-1 Supp.). ² The DOJ Manual also requires that the Advice of Rights warnings be read to the witness immediately prior to the witness's testimony before the grand jury. Id. A target is defined by the DOJ Manual as "a person as to whom the prosecutor or the grand jury has substantial evidence linking him/her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." Id. The Manual defines a subject of an investigation as "a person whose conduct is within the scope of the grand jury's investigation." Id. In this case, it is clear that Myers did not receive a target letter, J.A. at 41, and it appears that he did not receive an Advice of Rights form, J.A. at 32-34. The government, however, argues that is was not required to send either of these items to Myers. It asserts that Myers "was not a putative defendant" but that he was "arguably a suspect" and that "[i]t is not clear defendant was a target, although the government may have believed defendant was somehow criminally involved with Kelvin Smith." Appellee's Br. at 4, 8-9.

As an initial matter, we note the ambiguous nature of the government's statements in light of the fact that under the DOJ Manual, a witness cannot be a target without being a putative defendant. More importantly, we believe that...