U.S. v. Smith

Decision Date21 March 2006
Docket NumberNo. 04-4117.,No. 03-4829.,No. 03-4878.,03-4829.,03-4878.,04-4117.
Citation441 F.3d 254
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Terrance SMITH, a/k/a Ty, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rodney Reep, a/k/a Dirty Harry, a/k/a Harry, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Karl E. Moore, Sr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Kevin Michael Schad, Schad & Schad, Lebanon, Ohio; Jesse Edgar Demps, Portsmouth, Virginia; Andrew Michael Sacks, Sacks & Sacks, Norfolk, Virginia for Appellants. Laura Marie Everhart, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

ON BRIEF:

Craig W. Sampson, Richmond, Virginia, for Appellant, Karl E. Moore, Sr. Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Before WILKINS, Chief Judge, LUTTIG, Circuit Judge, and JAMES C. DEVER, III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Chief Judge WILKINS wrote the majority opinion, in which Judge LUTTIG joined. Judge DEVER wrote an opinion concurring in part and dissenting in part.

OPINION

WILKINS, Chief Judge.

Karl E. Moore, Sr., Terrance Smith, and Rodney Reep (collectively, "Appellants") appeal their convictions and sentences in this drug conspiracy case. Concluding that all of Appellants' numerous arguments are without merit,1 we affirm.

I.

The underlying facts are not directly pertinent to the issues raised on appeal and thus may be briefly stated. In 1997, Moore and his family moved from Arizona to the Tidewater area of Virginia. Moore opened a gas station and convenience store, which soon became a haven for gambling and drug dealing. Moore primarily dealt cocaine and cocaine base. Smith assisted Moore in the enterprise, often delivering large quantities of narcotics and collecting money from drug customers. Smith also stored drugs at his home for Moore.

After Reep was released from prison in May 2001, Moore assisted him in getting started in the drug business. (Moore and Reep were old friends, and Moore had supplied Reep with heroin for resale while Reep was in prison.) Reep worked at an automobile shop in the Tide-water area. Vehicles loaded with cocaine would be driven to the shop, where Reep would unload the cocaine. Moore paid Reep for his services in cocaine.

Each Appellant was convicted of conspiracy to possess with the intent to distribute cocaine, cocaine base, or heroin, see 21 U.S.C.A. § 846 (West 1999), and additional offenses. Moore was sentenced to life imprisonment; Smith and Reep were each sentenced to 360 months imprisonment.

II.

We first consider Appellants' challenges to their convictions.

A. Moore's Challenges
1.

Moore first argues that certain counts of his indictment were unconstitutionally vague. In particular, Moore challenges counts such as Count Four, which alleged that he possessed cocaine with the intent to distribute "[i]n or about Winter, 2000." J.A. 165. He maintains that he cannot be expected to mount a defense to a charge that does not identify a particular date.

An indictment meets the guarantees of the Fifth and Sixth Amendments "if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. U.S., 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).2 "Where a particular date is not a substantive element of the crime charged, strict chronological specificity or accuracy is not required." U.S. v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir. 1994) (internal quotation marks omitted). Since time is not an element of possession with the intent to distribute and there is no argument that the statute of limitations had expired, see U.S. v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993), the indictment was not unconstitutionally vague. Accord U.S. v. Synowiec, 333 F.3d 786, 791 (7th Cir. 2003) ("Where the indictment alleges that an offense allegedly occurred `on or about' a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date. He therefore cannot make the requisite showing of prejudice based simply on the fact that the government has failed to prove a specific date." (internal quotation marks omitted)).

2.

Moore next asserts that the district court improperly admitted certain out-of-court statements made to Government witness William Henry Scott, IV. We conclude that Moore is not entitled to reversal of his convictions on this basis.

The Federal Rules of Evidence exclude from the definition of hearsay "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). "To admit testimony under this rule, a court must conclude (1) that there was a conspiracy involving the declarant and the party against whom admission of the evidence is sought and (2) that the statements at issue were made during the course of and in furtherance of that conspiracy." U.S. v. Neal, 78 F.3d 901, 905 (4th Cir. 1996) (internal quotation marks omitted).

Moore challenges the admission of two statements to which Scott testified. First, Scott testified that in August 2002 Gregory Bonds called him and asked him to pick up two kilograms of cocaine that were in a closet in Bonds' home. Bonds told Scott that Moore had shipped the cocaine from Arizona to Virginia. Second, Scott testified about a conversation he had with Van Beasley, an associate of Moore's. When Scott observed Beasley with a quantity of cocaine and asked how he had obtained it, Beasley stated that Moore had robbed someone who owed him money.

Although Moore objected to the admission of the statement made by Bonds, he failed to object to the admission of Beasley's statement. We therefore review the admission of Bonds' statement for abuse of discretion, see id., and the admission of Beasley's statement for plain error, see Fed.R.Crim.P. 52(b); U.S. v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). With respect to Beasley's statement, Moore must establish not only that an error occurred, but also that the error was plain and that it affected his substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Moore makes this three-part showing, correction of the error remains within our discretion, which we "should not exercise ... unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (alteration & internal quotation marks omitted).

Moore maintains that the Government failed to establish that Bonds and Beasley were part of the conspiracy, noting that Bonds was not named in the indictment and that there was no testimony that Bonds ever bought drugs from Moore. We agree with the Government that the evidence presented was sufficient for the jury to conclude that Moore, Scott, Bonds, and Beasley were all involved in the activities of the conspiracy.

Moore next claims that the statements were not made in furtherance of the conspiracy. "A statement by a co-conspirator is made `in furtherance' of a conspiracy if it was intended to promote the conspiracy's objectives, whether or not it actually has that effect." U.S. v. Shores, 33 F.3d 438, 443 (4th Cir. 1994). For example, statements made by a conspirator to a non-member of the conspiracy are considered to be "in furtherance" of the conspiracy "if they are designed to induce that party either to join the conspiracy or to act in a way that will assist it in accomplishing its objectives." Id. at 444. Most courts, including the Fourth Circuit, "construe the in furtherance requirement so broadly that even casual relationships to the conspiracy suffice to satisfy the exception." Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence vol. 5, §§ 801.34[5], 801-89 (Joseph M. McLaughlin ed., 2d ed., Matthew Bender 2005). In light of the broad construction of the "in furtherance" requirement, we conclude that the district court did not abuse its discretion in concluding that the statements by Bonds and Beasley were designed to further the conspiracy. We therefore affirm the admission of these statements.

3.

Moore next contends that the district court abused its discretion in allowing Moore's son, Karl Moore, Jr. (Moore, Jr.), to testify that at age six he "used to deliver drugs with DC [a friend of Moore's] on the bus to Phoenix, Arizona for my father." J.A. 667. Moore maintains that this was testimony regarding a prior bad act, in violation of Rule 404(b) of the Federal Rules of Evidence. Because Moore did not object to this testimony at trial, our review is for plain error.

Rule 404(b) provides that evidence of other crimes is inadmissible when it is offered to prove "the character of a person in order to show action in conformity therewith." This court has recognized that Rule 404(b) is primarily a rule of inclusion, not exclusion. U.S. v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). "Evidence that is (1) relevant to an issue other than character; (2) necessary; and (3) reliable is admissible under Rule 404(b)." U.S. v. Wells, 163 F.3d 889, 895 (4th Cir. 1998) (internal quotation marks omitted). Evidence is necessary, even if it does not relate to an element of a charged offense, "when it furnishes part of the context of the crime." Id. at 896 (internal quotation marks omitted).

There was no violation of Rule 404(b) here. Moore, Jr.'s testimony provided part of the context of the crime and revealed the basis for Moore, Jr.'s knowledge of his father's drug operations. See U.S. v....

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