U.S. v. Stockton

• Decision Date: 17 November 2003
• Docket Number: No. 02-4093.,No. 02-4139.,02-4093.,02-4139.
• Citation: 349 F.3d 755
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rolando STOCKTON, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Rolando Stockton, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 755

349 F.3d 755

UNITED STATES of America, Plaintiff-Appellee, v. Rolando STOCKTON, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Rolando Stockton, Defendant-Appellee.

No. 02-4093.

No. 02-4139.

United States Court of Appeals, Fourth Circuit.

Argued: September 26, 2003.

Decided: November 17, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED: G. Godwin Oyewole, Washington, D.C., for Appellant.

James G. Warwick, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF: Thomas M. DiBiagio, United States Attorney, Andrea L. Smith, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge WILLIAMS wrote the opinion, in which Judge TRAXLER and Judge KING joined.

OPINION

WILLIAMS, Circuit Judge:

Rolando Stockton appeals his convictions for drug conspiracy and for firearms-related offenses committed in connection with that conspiracy. Stockton argues that the evidence presented at trial was insufficient to support the jury's guilty verdict on each of the counts of conviction, that the district court committed plain error in failing to give the jury a "multiple conspiracies" instruction, and that prosecutorial misconduct during the trial effectively denied him his right to a fair trial. The Government cross-appeals the district court's decision to depart downward from the prescribed sentence range based on the alleged over-representativeness of the career offender enhancement. For the reasons set forth below, we affirm the convictions, but reverse the sentence, and remand the case for resentencing with instructions to impose a sentence within the range prescribed by the Sentencing Guidelines.

I.

On April 17, 2001, a federal grand jury sitting in the District of Maryland returned a five-count Fifth Superseding Indictment (indictment) charging Rolando Stockton with various offenses related to his alleged participation in a heroin trafficking conspiracy operating in the Park Heights neighborhood of Baltimore, Maryland. In count one of the indictment, the Government charged Stockton with conspiracy to distribute, and conspiracy to possess with intent to distribute, one kilogram or more of heroin from 1994 to April 2000, in violation of 21 U.S.C.A. § 846 (West 1999). In support of this conspiracy charge, the Government alleged that the members of the conspiracy used violence to enforce discipline within the conspiracy and used violence to keep those outside the conspiracy from interfering with the conspiracy's operations. One of the alleged overt acts of the conspiracy was the attempted murder of Ricky Ricardo Jones on May 13, 1999. That attempt resulted in the shooting of Clinton Williams. In counts two through five of the indictment, the Government charged Stockton with four firearms violations stemming from the events of May 13, 1999, specifically, use of a firearm against Jones during and in relation to a drug trafficking crime in violation of 18 U.S.C.A. § 924(c) (West 2000) (count two); use of a firearm against Clinton Williams during and in relation to a drug trafficking crime, also in violation of § 924(c) (count three); possession of a firearm by a convicted felon in violation of 18 U.S.C.A. § 922(g)(1) (West 2000) (count four); and possession of ammunition by a convicted felon, also in violation of § 922(g)(1). Stockton entered a plea of not guilty, and a trial by jury ensued.

During the trial, the Government presented voluminous evidence respecting the existence of the Park Heights heroin trafficking conspiracy and Stockton's role therein. The evidence included testimony from the police officers who had investigated the conspiracy, individuals involved in the street-level operations of the conspiracy, and two of the top-level members of the conspiracy, Antonio Hayes and Elijah Jacobs. Collectively, these witnesses described a criminal enterprise that established a market for the distribution of heroin in the mid-1990s, and ruthlessly protected that market through 2001 by frequently using violence to dispose of competitors and transgressors. Hayes and Jacobs both testified that Stockton was an active member of the conspiracy, both in 1994 and in 1999. Stockton was absent from the conspiracy between those years because of his incarceration resulting from a state conviction.

Evidence at trial similarly supported the Government's charges respecting the assault on Ricky Ricardo Jones and Clinton Williams on May 13, 1999. Particularly damaging to the defense was the testimony of Williams, an eyewitness to the assault. Williams testified that, on that date, he gave Jones a ride into the Park Heights neighborhood. While in Park Heights, he stopped in an alley to let Jones out of the car. Jones got out of the car and left the immediate vicinity. Williams remained in the car, and after a short period of time, Stockton approached the car and asked Williams why he was in the neighborhood and why he was with Jones. Williams testified that, before he could answer, Stockton spotted Jones, an argument ensued, and Stockton pulled a gun. Upon seeing the gun, Williams ducked down and attempted to flee down the alley in his car. As he was fleeing, Williams heard gunfire, and soon realized that he had been shot in the right arm. Antonio Hayes corroborated Williams's testimony by noting that, on May 13, 1999, Stover Stockton — Rolando's brother and fellow member of the conspiracy — asked Hayes for a gun because Stover had given his gun to Rolando. Hayes also explained that Jones was targeted because he was selling drugs in the neighborhood without the conspiracy's permission.

Stockton testified in his own defense and generally denied an association with the Park Heights conspiracy, either in 1994 or 1999. Regarding the events of May 13, 1999, Stockton admitted being in the general area where the shooting took place but claimed that he was not the gunman. Rather, Stockton explained, he had acted as a peacemaker and tried to calm Jones, who, according to Stockton, was upset because his cousin had been assaulted. Stockton testified that, after speaking with Jones, Jones gave him a hug, and then Stockton walked away toward the house of Tasha Gray, Stockton's girlfriend and the mother of one of his children. As Stockton was walking away, he heard gun shots and then ran toward Gray's house. Stockton also testified that he had never met Jones before May 13, 1999.

During the cross-examination of Stockton, the Government pressed Stockton on whether he actually had known Jones before the May 13 incident. The following exchange ensued:

Q. If I understood your testimony a few minutes ago, you told us all that prior to May 13th of 1999, you had never seen, never laid eyes on Ricky Ricardo Jones, correct?

A. That's correct.

Q. And if I also understood your testimony, you told us that you don't think you'd be able to recognize him if you saw him, is that also your testimony?

A. Yes.

Q. And you have no reason to understand, based upon what you told us, why anybody might shoot at him, correct?

A. Correct.

Q. If you do not know Ricky Ricardo Jones, other than the brief conversation that you told us about in your direct testimony a few moments ago—

A. Yes.

Q. —why are you calling him as a witness on Monday?

(J.A. at 101-02.) At this point, counsel for Stockton objected, to which the Court responded:

I sustain the objection. That's preposterous. That's absolutely obscene. Strike that. Disregard that. It is absolutely nonsense. It is ridiculous. [T]he man has a lawyer who investigated the case. Mr. Ricardo Jones is obviously a figure in the case. Of course, counsel's going to find him. Now, move to something else.

(J.A. at 102.) Jones eventually did testify for the defense and essentially corroborated Stockton's version of the events of May 13, 1999.

In its rebuttal case, the Government called Tasha Gray, whom the defense had chosen not to call. Gray related a version of the events of May 13, 1999, that might have been helpful to Stockton, had it not been at odds with the testimony of Stockton and Jones. Gray testified that Stockton had been on the porch of her house with her from the time Jones drove into the neighborhood until after the shooting. Gray also testified that defense counsel had told her that she would be called as a witness for the defense.

During closing argument, the Government highlighted the fact that Stockton had failed to call Gray as a witness, stating, "[a]nd then, of course, there was Tasha Gray, who was supposed to be a defense witness, but then [they] chose not to call her." (J.A. at 123.) Counsel for Stockton objected and the district court responded by stating, "[w]ell, I'm going to allow argument, and people have a difference of opinion, you can air it in your arguments. Okay. Go ahead." (J.A. at 123.)

At the close of argument, counsel for Stockton moved for a mistrial, stating that the inappropriate question during the cross-examination of Stockton in combination with the Government's mention of Stockton's failure to call Tasha Gray as a witness effectively denied Stockton his right to a fair trial. The district court denied the motion, and the jury ultimately found Stockton guilty on each of the five counts of the indictment.¹

At sentencing, Stockton moved for a downward departure based on the over-representativeness of his criminal history category. See U.S. Sentencing Guidelines Manual § 4A1.3 (1998). Because Stockton had two prior felony controlled substance convictions — an October 10, 1990 conviction for possession with intent to distribute narcotics and a January 4, 1991 conviction for distribution of narcotics — he qualified as a career offender under U.S.S.G. § 4B1.1. After initially arguing that the career offender enhancement should not apply at all because the predicate offenses...