U.S. v. Stover

• Decision Date: 23 May 2003
• Docket Number: No. 01-3026.,No. 01-3037.,No. 01-3096.,No. 01-3029.,01-3026.,01-3029.,01-3037.,01-3096.
• Citation: 329 F.3d 859
• Parties: UNITED STATES of America, Appellee, v. Daniel STOVER, <I>a/k/a</I> Buck, <I>a/k/a</I> Blade, and Vernon McCall, Appellants. United States of America, Appellee, v. Walter Henry III, <I>a/k/a</I> Money, <I>a/k/a</I> Henry Walker and Charles Harrison, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

329 F.3d 859

UNITED STATES of America, Appellee, v. Daniel STOVER, a/k/a Buck, a/k/a Blade, and Vernon McCall, Appellants.

United States of America, Appellee, v. Walter Henry III, a/k/a Money, a/k/a Henry Walker and Charles Harrison, Appellants.

No. 01-3026.

No. 01-3029.

No. 01-3037.

No. 01-3096.

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 2003.

Decided May 23, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (Nos. 98cr00235-04, -05, -06, -08).

Stephen C. Leckar, appointed by the court, for appellant Henry, Sandra G. Roland, Assistant Federal Public Defender, for appellant McCall, Paul H. Zukerberg, for appellant Stover, and Mary M. Petras, appointed by the court, for appellant Harrison, argued the causes. With them on the joint briefs was A. J. Kramer, Federal Public Defender.

Walter Henry III filed pro se briefs.

Deborah Watson, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, William D. Braun, Attorney, U.S. Department of Justice, and William J. O'Malley, Jr., Assistant U.S. Attorney.

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

In these consolidated appeals, four appellants, Charles Harrison, Walter Henry, Vernon McCall, and Daniel Stover, raise numerous challenges to their convictions and sentences for drug conspiracy and possession with intent to distribute. After reviewing the challenged pre-trial, trial, post-trial, and sentencing rulings of the District Court, we affirm the District Court on all but two of its judgments. We vacate the sentences of Henry, Harrison, and McCall and remand to the District Court for a new calculation of the drug quantity for which each is responsible. We also remand McCall's sentence for a new finding on the scope of his conspiratorial agreement. We have accorded all of appellants' arguments full consideration after careful examination of the record, but this opinion addresses only those arguments that warrant discussion.

I. BACKGROUND

This case involves a conspiracy to import heroin from Thailand and other Asian countries and distribute it in the Washington D.C. and Baltimore areas. The evidence presented at trial established that, from 1995 to 1998, Nuri Lama, a citizen of Nepal residing in New York, arranged to import heroin from Asia into the United States, and delivered the heroin to appellant Walter Henry. Henry stored the drugs at his mother's home in Capitol Heights, Maryland, and then sold the heroin to appellant Charles Harrison, who was the "hub." Harrison "cut" or diluted the heroin and sold it to a network of dealers in the Washington D.C. and Baltimore areas, including appellant Vernon McCall. Daniel Stover, Harrison's right-hand man, also "cut" heroin, packaged and delivered it, and collected payment for it. Stover also operated a "stash house" for Harrison in Fort Washington, Maryland.

The Government's investigation of the heroin conspiracy produced tapes of more than 250 telephone conversations intercepted on telephone lines belonging to Lama, Henry, and Harrison. On various dates in June and July 1998, the Federal Bureau of Investigation ("FBI") searched the homes of Harrison, McCall, Henry (who lived with his mother), and Michael Ball (another distributor in the conspiracy); the FBI also searched McCall's car and Stover's stash house. The searches recovered heroin, guns, cash, documents connecting individuals to the conspiracy, small baggies of heroin for street distribution, cutting agents, cutting and packaging equipment, and scales.

On May 4, 1999, appellants and others were charged with one count of conspiracy to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846. Henry was also charged with two counts of possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Stover and Harrison were also charged with one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956.

From October 20, 1999 to January 12, 2000, all appellants were tried in a jury trial before the District Court. Before trial, Lama pled guilty to having engaged in a conspiracy and provided evidence against appellants. Stover and McCall were convicted of conspiracy to possess with intent to distribute. Henry was convicted of possession with intent to distribute. Stover was acquitted of the money laundering conspiracy count. The jury was unable to reach a verdict as to Henry and Harrison on the drug conspiracy count, and as to Harrison on the money laundering conspiracy count. From September 11 to October 20, 2000, a retrial on the drug conspiracy count against Henry and Harrison took place. The District Court dismissed the money laundering conspiracy count against Harrison. The jury returned a guilty verdict as to both Henry and Harrison on the drug conspiracy count. Henry and Harrison were sentenced to life imprisonment, Stover to 360 months, and McCall to 235 months.

Appellants now appeal, seeking review of pre-trial, trial, post-trial, and sentencing rulings of the District Court.

II. ANALYSIS

A. Stover Verdict Jury Note

Stover appeals his conviction on the ground the District Court failed to act on a note from the jury that, he alleges, cast doubt on its guilty verdict. The jury returned a verdict convicting Stover of conspiracy on January 7, 2000; the jury was polled and the verdict found unanimous. On January 12, after the jury informed the court it was hung on the conspiracy count against Henry, the jury sent out the following note:

During deliberations for Daniel Stover, the question of what pieces of evidence his fingerprints were on came up. Some thought one way, some another. After research, it was found that some who voted based on these supposed facts were wrong. Some want to redeliberate on this issue, some don't. How do we, if possible, rectify this matter? Seat 4, Seat 11, Seat 6, Seat 8, Seat 12. Can we meet privately on this matter?

Trial Transcript ("Tr."), reprinted in 1 Joint Appendix ("JA") in 01-3026, at 5781. The judge informed the lawyers who were present he intended to tell the jurors "they can't do anything about judgment having been entered as to Stover, and whatever post-trial motions are filed will be filed." Tr., 1 JA in 01-3026, at 5782. He then summoned the jurors and informed them: "I have your notes, and I have decided to terminate your deliberations." Tr., 1 JA in 01-3026, at 5791. Stover's counsel, who had not been present, later filed a motion to reconvene the jury for additional deliberation, which the court declined to grant. We review the District Court's actions for abuse of discretion. See United States v. Campbell, 684 F.2d 141, 151-52 (D.C.Cir. 1982) ("When confronted with allegations of irregularity in the jury's proceedings, the trial judge has broad discretion `to determine what manner of hearing, if any, is warranted.' ... The trial court correctly determined that no further inquiry was required and the judge did not abuse his discretion in responding to these allegations as he did.") (quoting United States v. Wilson, 534 F.2d 375, 379 (D.C.Cir. 1976); citing United States v. Parker, 549 F.2d 998, 1000 (5th Cir.1977)). The District Court below acted within its discretion and in accord with Federal Rule of Evidence 606(b).

Rule 606(b) provides:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

FED.R.EVID. 606(b). "Federal Rule of Evidence 606(b) is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences." Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 2748, 97 L.Ed.2d 90 (1987). This rule precludes taking testimony from the jurors in this case regarding their belated misgivings as it did under similar circumstances in United States v. Dakins, 872 F.2d 1061, 1065 (D.C.Cir.1989).

In Dakins the jury returned a partial verdict against one defendant, the verdict was read aloud in the courtroom, the jury was polled and unanimously assented to the verdict, and the judge instructed the jurors to resume deliberating on the two remaining defendants. At day's end one juror informed the judge she had a "question about the decision that was made on Mr. Dakins." 872 F.2d at 1064. At the judge's request, she wrote the question on a piece of paper which the judge sealed, unread, in an envelope. When the envelope was opened on appeal, the enclosed paper revealed the juror had developed doubts about the sufficiency of the Government's proof of Dakins's guilt. Upholding the trial court's treatment of the note, this court explained:

Juror No. 10's second-thoughts were manifested hours after the poll had been conducted, and the jury had been returned to its deliberations by the court. The verdict had been read into the court record. Upon the 12th juror's assent, also upon the record, it was "recorded" for purposes of Rule 31(d). The jury's decision had become a final verdict, and no...