U.S. v. Smith

Decision Date13 June 2006
Docket NumberNo. 05-4111.,05-4111.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eric Bernard SMITH, a/k/a E, a/k/a Pac-Man, a/k/a Sld Dft 5:03CR12-2, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Aaron Edmund Michel, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge MICHAEL and Judge GREGORY joined.

OPINION

KING, Circuit Judge.

Eric Bernard Smith appeals his convictions by a jury in the Western District of North Carolina on two related charges— conspiracy to possess with intent to distribute cocaine and cocaine base (21 U.S.C. § 846), and possession with intent to distribute cocaine base (21 U.S.C. § 841(a)(1))—as well as his resulting sentence. Smith makes multiple contentions of error, including (1) that his motion for judgment of acquittal should have been granted because the jury verdict on the conspiracy charge was not sufficiently supported by the evidence, (2) that he should have been awarded a new trial, and (3) that the enhancement of his sentence under 21 U.S.C. § 851 was unconstitutional and erroneous. As explained below, we find no reversible error and affirm.

I.

A.

On February 25, 2003, Smith and eleven others were indicted together in the Western District of North Carolina on a total of sixteen drug-related counts. The first count of the indictment charged all twelve defendants—including Smith and Edward Monroe Little—with involvement in a conspiracy to distribute cocaine and cocaine base (commonly known as "crack" or "crack cocaine") in Iredell, Catawba, and Burke Counties of western North Carolina, from January 1995 until February 2003 ("Count One"). More specifically, Count One charged that the defendants conspired to possess with intent to distribute over fifty grams of crack cocaine and over five kilograms of cocaine, in violation of 21 U.S.C. § 846. Additionally, the third count of the indictment charged Smith with possession with intent to distribute crack cocaine in Catawba County on October 19, 2001, in violation of 21 U.S.C. § 841 ("Count Three"). After the indictment was returned, the prosecution filed an information, pursuant to 21 U.S.C. § 851, seeking to enhance Smith's sentence on the basis of his prior felony convictions: four drug felonies in June 1996 and three drug felonies in October 1997. On April 16, 2004, Smith filed a motion to sever his trial from that of his co-defendant Little, contending that a joint trial would result in unfair prejudice. The district court denied the severance motion and proceeded to try Smith and Little together.

The trial proceedings against Smith and Little began on May 4, 2004, in Statesville, North Carolina. During voir dire in the jury selection proceedings, the prospective jurors were asked whether they could be fair and impartial. Prospective juror Joy Stutts initially replied that she did not "know if I'd be fair or not because I've never—I'm a housewife. I stay at home all the time and I don't know anything about any of this." S.J.A. 24.1 When asked whether she could listen to testimony, examine evidence, "decide what the facts are and apply the law that the judge gives you," she initially replied, "I'm not sure." Id. Smith moved to have Stutts excused from the jury venire for cause, but the court denied the motion. On further questioning, Stutts answered that she "would try to be" fair but that she "couldn't promise." Id. at 26. The Assistant United States Attorney continued to question her as follows:

Q: Well, do you know of any reason that you couldn't be fair?

A: No.

Q: Okay. Do you have any moral or religious problems following the law?

Q: Do you have any problems taking an oath that you'll follow the law?

A: No.

Id. at 27. When Smith's defense lawyer renewed his motion to excuse Stutts for cause, the court again denied the motion, explaining that Stutts had sufficiently confirmed that she would be fair. The jury, as ultimately selected, included Stutts.

B.

During the four-day trial, the prosecution presented extensive evidence of Smith's involvement in a long-running drug business centered in "The Hill" neighborhood of Newton, in Catawba County, North Carolina. Fred Shuford testified that he had sold crack cocaine to Smith in 1994 and 1995, at which point Smith stopped using drugs and started selling them. Shuford then supplied Smith with progressively increasing amounts of crack cocaine for resale. Tony Young testified that he had purchased crack from Smith three times in 2000, totalling roughly 630 grams. On the third crack deal, Smith travelled to Florida to obtain half a kilogram of crack for Young, which was later distributed by Young and an associate on The Hill.

Several of the defendants named in the indictment made plea deals with the Government and testified against Smith and Little. Jamario Emonite Allred testified that Smith worked for him in The Hill neighborhood in the early 1990s as a "runner," in exchange for drugs, and that Allred had observed Little make numerous drug sales on The Hill in 1994 and 1995. Allred also stated that he had purchased crack cocaine from Smith for resale during 1999 and 2000. Camron Pope testified that he had purchased crack for resale from Smith in 2001, and that he (Pope) twice sold Smith an ounce of crack in 2003. Warren England testified that he had purchased crack cocaine from Smith from the mid-1990s until 2000, and again in 2002. Earnest Edward Squarles, Jr. said that he had twice purchased crack from Smith, in 2000 or 2001, and that he saw Little with some of Smith's associates (co-defendants England and Sherwood Milas Gaither) in locations where Smith, Squarles and others would distribute drugs.

Jermaine Anthony, a prosecution witness who was not a co-defendant, testified that Smith and Little had supplied him with drugs for resale from 1996 or 1997 through 2000. On cross-examination, Smith's lawyer asked Anthony if he had been involved in a 1999 shooting incident but Anthony denied being present when the shooting occurred. Smith's lawyer continued to press Anthony on the point, attempting to expose his possible bias against Smith—that is, that Anthony had agreed to testify in exchange for favorable treatment from the prosecution. The court curtailed Smith's follow-up questions on the issue, however, ruling the alleged shooting to be irrelevant to the Count One conspiracy offense, and noting that Anthony's testimony concerning the shooting would be hearsay because he indicated that he had no personal knowledge of the event.

In addition to these witnesses, the prosecution presented the evidence of several law enforcement officers and forensic scientists. Newton police officers testified about the facts underlying the allegations against Smith in Count Three: On October 19, 2001, Smith was arrested by Newton police, who seized from him 3.6 grams of crack cocaine, packaged for distribution, as well as 1.5 grams of powder cocaine and more than $2,300 in cash. Forensic chemist Lisa Edwards of the North Carolina State Bureau of Investigation (the "SBI") testified that the seized substances tested positive for crack cocaine and cocaine, respectively.

In addition, several officers from the Hickory and Newton police departments, as well as SBI forensic technicians, testified to other acts underlying the conspiracy charge in Count One. For example, on August 26, 1995, Smith had been arrested by Newton police, who seized 5.4 grams of a substance from him (the "1995 Arrest"). Glenn Parham, an SBI forensic chemist, testified that lab tests determined the substance to be crack cocaine. On October 29, 2000, Smith had been arrested by Hickory police, who seized .1 gram of a substance from him (the "2000 Arrest"). Sgt. Brian Adams of the Hickory Police Department testified that, when he stopped Smith on that occasion, he obtained Smith's consent for a search and found what appeared to be a plastic bag of crack cocaine in Smith's mouth. When Smith attempted to swallow the bag, Adams forced him to spit out a flake of its contents. An SBI expert testified that the seized flake contained less than .1 gram of crack cocaine.

During the testimony of these officers, it was revealed to the jury that the physical drug evidence from the 1995 and 2000 Arrests had been destroyed pursuant to police department procedures—the 5.4 grams had been destroyed by the Newton police after Smith pleaded guilty in state court in 1996, and the .1 gram had been destroyed in 2003 by the Hickory police after the state court case against Smith was dropped by prosecutors in 2002. Smith's lawyer objected to the introduction of any testimony regarding the drug evidence that had been destroyed, and the prosecution countered by moving in limine to preclude defense questioning of the prosecution's witnesses about the destruction of the drug evidence, other than to elicit the fact that it had been destroyed. The court granted the prosecution's request and denied Smith's objections, explaining that Smith's desire to cross-examine the prosecution witnesses regarding the destruction of the drug evidence was outweighed by the tendency of such questioning to be confusing, prejudicial, and irrelevant.

In a hearing on the issue, conducted outside the presence of the jury, the court permitted Smith to voir dire the officers about the drug evidence that had been destroyed. When Smith moved again to suppress all testimony relating to the destroyed evidence, the district court again rejected his request, finding that...

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