U.S. v. Smith

• Citation: 62 F.3d 641
• Decision Date: 21 August 1995
• Docket Number: No. 94-5724,94-5724
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan E. SMITH, a/k/a John Smith, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 641

62 F.3d 641

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan E. SMITH, a/k/a John Smith, Defendant-Appellant.

No. 94-5724.

United States Court of Appeals Fourth Circuit.

Argued May 4, 1995.

Decided Aug. 21, 1995.

ARGUED: William Lee Davis, III, Lumberton, NC, for appellant. Robert Edward Skiver, Asst. U.S. Atty., Raleigh, NC, for appellee. ON BRIEF: Janice McKenzie Cole, U.S. Atty., Amanda J. Green, Third Year Law Student, North Carolina Cent. University School of Law, Raleigh, NC, for appellee.

Before MURNAGHAN and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded for resentencing by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge MURNAGHAN and Judge MICHAEL joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Jonathan Smith appeals from his conviction and sentencing on six narcotics charges. He contends, inter alia, that the district court gave a misleading and prejudicial supplemental jury instruction, improperly denied his motion for a new trial based on ineffective assistance of counsel, and erred in enhancing his sentence on grounds of obstruction of justice. We find Smith's first contention, as well as his further allegations of trial error, unpersuasive, and therefore affirm his conviction. Also, concluding that Smith's new trial motion was untimely, we affirm the district court's denial of that motion on the grounds that it lacked jurisdiction to hear it. However, because we agree that the district court failed to make the specific findings of perjury necessary to support the sentencing enhancement for obstruction of justice, we remand for resentencing.

I.

The facts giving rise to Smith's conviction arose from two separate events, nearly a year apart. We recount the evidence in the light most favorable to the government.

On August 18, 1992, an undercover officer for the Raleigh Police Department observed Smith making two street-level sales of crack cocaine. Smith was immediately arrested. A search of his person turned up a medicine bottle containing 10.3 grams of crack. After his arrest, Smith was advised of, and waived, his Miranda rights. He admitted that the previous day he had received 40 grams of crack for resale.

On July 27, 1993, a postal carrier attempted to deliver an Express Mail package to a trailer in Fayetteville, North Carolina. Finding nobody at home, the carrier left a notice advising that the package could be retrieved at the post office. Two days later, Smith and Glen David, a/k/a Travis Washington, twice attempted to pick up the package. Both times they were refused because they did not produce identification of the addressee, "Lee Lane." David returned alone a third time and was again rebuffed. The postal supervisor witnessed these scenes and, his suspicions aroused, contacted the postal inspector. Shortly thereafter, a sheriff's deputy arrived with a narcotics detection dog which alerted on the package sought by Smith and David. The package was opened and found to contain approximately 122 grams of crack, all but 5 of which were removed by the postal inspector. The package was then resealed. A search warrant for the residence to which the package was addressed was obtained and a controlled delivery was planned for the following day.

On July 30, that delivery was made. Glen David was at the trailer. He accepted the package and signed as "Travis Jefferson." In short order, state and federal officers executed the search warrant. David and a third party were found inside and arrested; Smith was not present. A search of Smith's bedroom turned up a revolver, a pager, and $7000 in cash in seven equal stacks made up of small denominations. Elsewhere in the house agents found the unopened Express Mail package, a semi-automatic pistol, 13.9 grams of crack in a plastic bag, and a small set of postal scales. During the execution of the search warrant, Smith arrived at the trailer by car. After being warned off by a gesticulating neighbor, Smith made a U-turn and sped away. He was pursued in an unmarked police car, caught, and arrested.

Smith was subsequently indicted on six drug trafficking offenses. The heart of the indictment charged Smith with conspiring during July 1993 to possess and distribute crack cocaine and with use of a firearm during and in relation to a drug trafficking offense. The sixth count was not related to the alleged July 1993 conspiracy. It charged that on or about August 18, 1992, Smith possessed with intent to distribute crack cocaine.

Testifying for the government at the ensuing jury trial, Smith's indicted co-conspirator Glen David offered detailed testimony regarding a conspiracy, lasting barely over a month, to distribute crack. David testified that on at least four separate occasions he and Smith purchased crack in multiple-ounce quantities from a drug dealer named "T" in Brooklyn; that they would then sell the crack in Fayetteville in quantities ranging from a quarter-ounce to an ounce to distributors of user amounts; that the two firearms, the pager, and the $7000 cash all belonged to Smith; and that Smith had rented the trailer. According to police testimony, Smith had corroborated the details of the July conspiracy in a confession that he made upon his July 30th arrest (and after he waived his Miranda rights).

Smith testified in his own defense. He denied making either the August 18, 1992 or the July 30, 1993 confessions. He also denied any involvement in drug trafficking. According to Smith's testimony, the drugs and guns found in the July 30th raid belonged to David, who was staying as a guest in Smith's trailer. Smith admitted ownership of the $7000 in cash but explained that it was a loan from his mother and sister.

After closing arguments, the district court instructed the jury on all counts. On the conspiracy charge, the district court gave the instruction that Smith had requested. After some deliberation, however, the jury asked that the conspiracy instructions be clarified. The court gave a supplemental instruction to which Smith did not object. An hour later, the jury returned a verdict of guilty on all counts.

At the June 1994 sentencing hearing, Smith asked that his counsel, Assistant Public Defender Gale Adams, be removed because he "thought she didn't do a good enough job." The district court expressed skepticism over Smith's complaints, opining that Adams was "one of the best lawyers available, public defender or private," but nonetheless acceded to Smith's request for a continuance and appointment of new counsel.

Smith then added that he had just found out that the public defender's investigator who had worked on his case was also affiliated with the Cumberland County Sheriff's Department--the very sheriff's department that was involved in the July 1993 controlled delivery, search, and arrest. After a brief colloquy with Ms. Adams during which she confirmed that Investigator Chuck Livingston might indeed be a Special Deputy for the County Sheriff's Department, the district judge ruled that he would direct appointment of a private attorney to represent Smith. The court also speculated that Smith might have a legitimate request for a new trial based on conflict of interest. The court reflected that

[i]t doesn't sound right to me how you can have an investigator be defendant's investigator and be a member of a law enforcement agency who is prosecuting the case.

....

You don't get to prosecute the case and represent the defendant at the same time even though you might be able to do it. It certainly would be efficient, but the system just doesn't tolerate that.

J.A. 310-11.

New counsel having been appointed, Smith filed a motion for a new trial based on "newly discovered evidence" and "other grounds" on September 16, 1994. Smith argued in particular that Investigator Livingston's conflict of interest led him to investigate the case inadequately and to sabotage Smith's chances for acquittal by informing potential defense witnesses that they would not be needed to testify at trial. Smith maintained that, had these fact and character witnesses "been called to testify, their testimony was of such character and relevancy that it would probably [have] result[ed] in a different verdict."

Despite its earlier expression of sympathy for Smith's argument, the district court denied Smith's motion at the subsequent consolidated hearing on the motion and for sentencing. The court concluded that

[t]he claims made by the defendant having to do with the conflict of interest between the Public Defender's investigator and the police are not material to the charges and trial in this case.

The defendant was investigated and prosecuted by other law enforcement personnel. There isn't any showing that the part-time employment of that investigator in any way impacted on the full events and representation that the defendant had by his counsel of trial in this case. There simply isn't any nexus between the alleged conflict and the trial and conviction in this case.

The sentencing hearing proceeded. At its conclusion, the district court sentenced Smith to 200 months imprisonment on each of the five trafficking offenses, all to run concurrently, and to 60 months on the firearms conviction, to commence thereafter.

II.

Smith raises numerous issues on appeal. His three principal contentions are that the district court's supplemental jury instructions were erroneous and prejudicial, that the court erred in enhancing his sentence on the grounds of obstruction of justice, and that the court erred in denying his motion for a new trial for ineffective assistance of counsel. We will address these three arguments in order.

A.

Although Smith complains generally that the supplemental instructions offered on the conspiracy charge were "confusing," "imbalanced," and "prejudicial," the gist of his argument focuses on the district court's failure to repeat its...