U.S. v. White

• Decision Date: 26 April 2005
• Docket Number: No. 04-4349.,04-4349.
• Citation: 405 F.3d 208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Gerald WHITE, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

405 F.3d 208

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Gerald WHITE, Sr., Defendant-Appellant.

No. 04-4349.

United States Court of Appeals, Fourth Circuit.

Argued: February 3, 2005.

Decided: April 26, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

David Richard Solomon, Glaser & Solomon, L.L.C., Baltimore, Maryland, for Appellant. Christopher John Romano, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON

BRIEF:

Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and CACHERIS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge WILLIAM W. WILKINS wrote the opinion, in which Judge CACHERIS joined. Judge DUNCAN wrote an opinion concurring in part and dissenting in part.

OPINION

WILLIAM W. WILKINS, Chief Judge:

Anthony Gerald White, Sr., appeals his convictions and sentence for drug and firearm offenses. We find no reversible error in the evidentiary rulings challenged by White and therefore affirm his convictions. Further, although we find that the district court plainly erred under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),¹ by treating the sentencing guidelines as mandatory in determining White's sentence, we conclude that White has not carried his burden of demonstrating that this error affected his substantial rights. Thus, we affirm White's sentence.

I.

This case arises from an investigation by the United States Drug Enforcement Administration (DEA) into drug trafficking activities at public housing complexes in Annapolis, Maryland. In early 2003, DEA agents used a confidential informant to make two controlled purchases of cocaine base from Gerald Hyman. Because these purchases involved communications with Hyman on his cellular telephone, agents obtained authority to conduct wiretaps on that telephone. Agents subsequently recorded calls between Hyman and White indicating that they were engaged in drug trafficking. After conducting additional surveillance of White and Hyman, agents obtained a search warrant for White's residence. Upon executing that warrant, officers seized two loaded firearms from a closet in the master bedroom, as well as five boxes of ammunition from a dresser in that bedroom.

White was charged with one count of conspiring to distribute 50 grams or more of cocaine base within 1,000 feet of a public housing facility, see 21 U.S.C.A. §§ 846, 860(a) (West 1999), and two counts of possessing a firearm or ammunition as a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West 2000). Following a trial, a jury convicted White on all three counts. At sentencing, the district court grouped the three counts together pursuant to United States Sentencing Guidelines Manual § 3D1.2(c) (2003). The district court determined that White was subject to a base offense level of 34 because the charged drug conspiracy involved locations within 1,000 feet of a public housing facility and 50 to 150 grams of cocaine base. See U.S.S.G. § 2D1.2(a)(1) (providing for a base offense level of " plus the offense level from § 2D1.1 applicable to the quantity of controlled substances directly involving a protected location"); id. § 2D1.1(c)(4) (providing for a base offense level of 32 for this drug quantity range). The district court imposed a two-level enhancement for White's possession of a firearm in connection with the drug conspiracy, see id. § 2D1.1(b)(1). White does not dispute that the facts found by the jury supported an offense level of 36 and a sentencing range of 188 to 235 months' imprisonment.² The district court further enhanced this offense level by two levels for obstruction of justice based on its finding that White committed perjury during his testimony at trial, see id. § 3C1.1. Based on White's total offense level of 38 and his criminal history category of I, the applicable guideline range was 235 to 293 months' imprisonment. The district court imposed a sentence at the bottom of this range, sentencing White to 235 months for the conspiracy offense and to concurrent 120-month terms for the firearm and ammunition offenses.

II.

White first contends that the district court committed two errors in admitting evidence at trial over his objection. We review rulings concerning the admission of evidence for abuse of discretion. See United States v. Hodge, 354 F.3d 305, 312 (4th Cir.2004).

A.

White claims that the district court improperly admitted rebuttal testimony from Cassandra White (Cassandra), one of White's alleged coconspirators. White claims that the admission of this testimony violated Rules 404(b) and 608(b) of the Federal Rules of Evidence. We disagree.

On direct examination, White denied any involvement in drug trafficking during the period of the charged conspiracy, January through July 2003, instead claiming that his recorded telephone conversations with Hyman concerned a different illegal activity — the sale of fraudulent automobile insurance documents. White admitted, however, that he sold cocaine for a brief period in 1989. On cross-examination, White clarified that he sold small quantities of powder cocaine approximately once a week during a six-month period in 1989. White further testified that although he had seen Cassandra before, he did not know her personally, nor had he ever sold drugs to her. Over White's objection, the district court then permitted the Government to call Cassandra as a rebuttal witness. Although the Government offered various bases for the admission of Cassandra's testimony, the district court ultimately concluded that the testimony was admissible under Rule 404(b). Cassandra testified that for approximately one year during the early 1990s, she regularly purchased cocaine base from White, "[s]ometimes once a day, twice a day, sometimes three times a day." J.A. 683.

Rule 404(b) provides that evidence of prior bad acts may be admissible for purposes other than "to prove the character of a person in order to show action in conformity therewith." Such purposes include "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Evidence of prior bad acts is admissible under Rule 404(b) if the evidence is (1) relevant to an issue other than the general character of the defendant, (2) "probative of an essential claim or an element of the offense," and (3) reliable. United States v. Queen, 132 F.3d 991, 997 (4th Cir.1997). Additionally, the probative value of the evidence must not be substantially outweighed by the danger that it will cause unfair prejudice. See Fed.R.Evid. 403; Queen, 132 F.3d at 997.

Here, White does not challenge the reliability of Cassandra's testimony. Rather, he apparently contends that the testimony was irrelevant, unnecessary, and unfairly prejudicial. In particular, White argues that this evidence concerned events factually distinct and temporally remote from the charged conspiracy. We conclude, however, that the evidence of White's prior drug sales to Cassandra was relevant and necessary. Contrary to White's testimony that he had only dabbled in the drug trade for a brief period, Cassandra's testimony tended to show that White had been a regular dealer of narcotics and therefore that he possessed the requisite knowledge and intent to commit the charged offense. See United States v. Sanchez, 118 F.3d 192, 196 (4th Cir.1997) (holding that a not-guilty plea places defendant's intent at issue and that evidence of similar prior crimes can thus be relevant to prove intent to commit charged crime); United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991) (explaining that "a defendant's knowledge and intent are clearly elements which the prosecution must establish to prove a [narcotics] conspiracy"). Further, as the district court noted, although Cassandra's testimony concerned events that were remote in time from the charged offense, the evidence was nonetheless probative because it involved prior drug transactions between White and Cassandra — both of whom were named as coconspirators in the present indictment. See Sanchez, 118 F.3d at 195 (explaining that evidence of earlier narcotics transactions between alleged coconspirators "show[ed] the relationships between the parties").

Moreover, the probative value of this evidence was not substantially outweighed by the danger that it would cause unfair prejudice. In light of the Government's other compelling evidence that White was involved in the charged conspiracy and White's admission of some prior drug dealing, we cannot say that the evidence concerning his prior dealings with Cassandra unfairly prejudiced the jury against him. And, any risk of such prejudice was mitigated by a limiting instruction from the district court clarifying the issues for which the jury could properly consider this evidence. See Hodge, 354 F.3d at 312. We therefore conclude that the district court did not abuse its discretion in admitting Cassandra's testimony under Rule 404(b).³

White also contends, however, that the admission of Cassandra's testimony violated Rule 608(b), which provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness. . . may not be proved by extrinsic evidence." White relies on United States v. Ling, 581 F.2d 1118 (4th Cir.1978), in which we reversed a defendant's narcotics convictions because the district court had improperly permitted the Government to introduce testimony from a police officer rebutting the defendant's testimony on cross-examination that he had never discharged a firearm on a public street. See Ling, 581 F.2d at 1121-23. In Ling, however, "[t]here was no link between the rebuttal testimony . . . and an element of the crime charged"; rather, "the only purpose of ...