United States v. Bush, 112719 FED4, 18-4385

Docket Nº:18-4385
Opinion Judge:KING, CIRCUIT JUDGE
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD SHEMAN BUSH, Defendant-Appellant.
Attorney:Zachary Thomas Dawson, FOX ROTHSCHILD LLP, Greensboro, North Carolina, for Appellant. Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. C. Fredric Marcinak, FOX ROTHSCHILD LLP, Greenville, South Carolina, for Appellant. Sherri A. Lydon, United St...
Judge Panel:Before WILKINSON, KING, and HARRIS, Circuit Judges.
Case Date:November 27, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

DONALD SHEMAN BUSH, Defendant-Appellant.

No. 18-4385

United States Court of Appeals, Fourth Circuit

November 27, 2019

Argued: October 31, 2019

Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, District Judge. (3:17-cr-00030-TLW-12)

ARGUED:

Zachary Thomas Dawson, FOX ROTHSCHILD LLP, Greensboro, North Carolina, for Appellant.

Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

ON BRIEF:

C. Fredric Marcinak, FOX ROTHSCHILD LLP, Greenville, South Carolina, for Appellant.

Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before WILKINSON, KING, and HARRIS, Circuit Judges.

KING, CIRCUIT JUDGE

Defendant Donald Sheman Bush appeals from his convictions and sentence for drug conspiracy and related offenses in the District of South Carolina. Bush's trial was conducted in October of 2017, and the jury convicted him of conspiring to possess and distribute cocaine and cocaine base, plus two charges of using a communication facility to aid in the commission of drug felonies. On appeal, Bush presents two challenges to his convictions. First, Bush contests the propriety of the district court's admission into evidence of a state court record concerning his 2013 state conviction for distribution of cocaine base. Second, he maintains that the prosecution fatally erred in failing to correct the false testimony of one of its witnesses. As explained below, we reject both contentions and affirm.

I.

On January 18, 2017, the federal grand jury in Columbia, South Carolina, returned a twenty-nine-count indictment against sixteen defendants for various controlled substance crimes and related offenses.1 The indictment resulted primarily from an FBI investigation into drug distribution activities involving cocaine and cocaine base (commonly known as "crack cocaine") in and around Sumter, South Carolina.2 The conspiracy charge in Count 1 alleged that Bush and others, from 2008 to early 2017, conspired to possess and distribute cocaine and cocaine base in South Carolina, in violation of 21 U.S.C. § 846. That charge specified that five kilograms or more of cocaine and 280 grams or more of cocaine base were attributable to Bush. Two other charges against Bush - in Counts 21 and 22 - alleged that he used a communication facility, that is, a telephone, to aid in the commission of drug felonies, in violation of 21 U.S.C. § 843(b). Unlike his codefendants, Bush exercised his right to a jury trial.

Prior to trial, the district court addressed with counsel the contested admissibility of a specific piece of the government's evidence - an official record of the Court of General Sessions of Sumter County, South Carolina - revealing that Bush had pleaded guilty there, in May 2013, to the offense of distributing cocaine base (the "State Conviction Record").3The lawyers disagreed on whether the State Conviction Record was "extrinsic" evidence of another criminal act by Bush, the admissibility of which would be governed by Rule 404(b) of the Federal Rules of Evidence.4 The prosecutors argued that Rule 404(b) did not apply to the evidence issue because the State Conviction Record constituted "intrinsic" evidence of the drug conspiracy and provided additional evidence of Bush's involvement in drug transactions during the period of the Count 1 conspiracy. Bush disagreed, arguing that Rule 404(b) precluded the admission of the State Conviction Record because it was extrinsic to the drug conspiracy and was otherwise inadmissible evidence.

In its pretrial proceedings, the district court identified the applicable precedent concerning Rule 404(b) issues and recognized the distinctions between evidence that is intrinsic (not subject to Rule 404(b)) and evidence that is extrinsic (subject to Rule 404(b)). The court also questioned the lawyers about the interplay between Rule 404(b), the applicable precedent, and the pertinent facts. The court declined, however, to render a pretrial ruling on the admissibility of the State Conviction Record, deferring that decision pending trial proceedings.5 Shortly thereafter, the trial commenced.

During Bush's three-day trial in Columbia in October of 2017, eight of Bush's coconspirators testified against him.6 Their evidence portrayed Bush as an integral member of a cocaine and cocaine base distribution ring that operated in the streets and "trap houses" of Sumter.7 The coconspirators admitted that they had routinely engaged in cocaine and cocaine base transactions with Bush from about 2008 until about 2017, with the exception of a period of about eighteen months between late 2011 and 2013, when Bush was in prison. Several of the witnesses had purchased cocaine base from Bush's trap houses in Sumter, and others had sold cocaine to Bush. Bush would use the cocaine he purchased to make cocaine base. In short, Bush's coconspirators confirmed that, except when he was incarcerated, Bush engaged in near-daily cocaine and cocaine base transactions in Sumter during the alleged drug conspiracy.

At the end of the trial's first day, the prosecution sought a ruling from the trial court on the admissibility issue relating to the State Conviction Record. Relying primarily on our 1996 decision in United States v. Chin, 83 F.3d 83 (4th Cir. 1996) - and after further consideration of the applicable legal principles - the court determined that the State Conviction Record was properly characterized as intrinsic evidence of the drug conspiracy. The court emphasized that the trial evidence already demonstrated that the conduct underlying the State Conviction Record "was in the conspiracy framework." See J.A. 121-22. In explaining this conclusion, the court related that Bush pleaded "guilty [as reflected in the State Conviction Record] to distributing crack during the conspiracy period, and [that] there[] [was] testimony that he was distributing crack during [that] timeframe." Id. at 117. The court thus decided that the State Conviction Record was not being used as extrinsic evidence of another crime and could be admitted into evidence without regard to the provisions of Rule 404(b), which are applicable to extrinsic evidence only.8

After the court ruled that the State Conviction Record was admissible, the prosecutors presented additional evidence from coconspirators who had engaged in drug transactions with Bush, and also called FBI Agent Kevin Conroy. Conroy explained that the FBI had identified a drug dealer named Foster and subsequently conducted several drug buys and...

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