United States v. Dennis

• Decision Date: 03 December 2021
• Docket Number: No. 19-4494,19-4494
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Terrance Deandre DENNIS, a/k/a Sticks, a/k/a Terrence Deandre Dennis, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

19 F.4th 656

UNITED STATES of America, Plaintiff - Appellee,

v.Terrance Deandre DENNIS, a/k/a Sticks, a/k/a Terrence Deandre Dennis, Defendant - Appellant.

No. 19-4494

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2021

Decided: December 3, 2021

ARGUED: Thomas Paul DeFranco, MURPHY & MCGONIGLE, PC, Washington, D.C., for Appellant. Peter Gail Osyf, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Amanda C. Conner, Assistant Federal Public Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Howard J. Zlotnick, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before DIAZ, FLOYD, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Diaz and Judge Richardson joined.

FLOYD, Circuit Judge

Dennis appeals a 96-month conviction on several drug and firearm counts arising out of a traffic stop turned high-speed chase in Hampton and Newport News, Virginia. Dennis challenges the sufficiency of the evidence used to convict him. Alternatively, he requests a new trial because the district court allowed the prosecutor to peremptorily strike a Hispanic juror and instructed the jury there is no legal requirement that the government use any specific investigative techniques to prove its case. This case, like our recent decision in United States v. Moody , 2 F.4th 180, 187 (4th Cir. 2021), brings center stage the "ease with which our law permits conspiracy convictions for conduct that overlaps almost entirely with underlying substantive offenses." But, like in Moody , we are constrained by our conspiracy precedent and must affirm on all counts.

I.

A.

Taken in the light most favorable to the government, evidence adduced at trial established the following facts. In August 2018, federal law enforcement officers were conducting a drug trafficking investigation at a shopping plaza in Hampton, Virginia.¹ Stationed around the plaza in several unmarked cars, the officers sought to surveil an individual "P" based on a confidential tip; the officers carried no cameras or recording devices of any kind. Sometime over the course of the morning, a car drove into the plaza and two individuals—the officers would later come to know them as co-defendants Dennis and Guess—got out to speak with P. The conversation lasted only a few minutes, after which Guess returned to the driver's seat of his car, and Dennis to the front passenger's. When the two pulled out of the plaza, Task Force Agent Ryan Boone instructed his entire team to abandon their surveillance of P and follow Dennis and Guess instead. Agent Boone never explained this change in tactic, even though Dennis and Guess were far from the only people who pulled up to speak with P.

After several minutes, Dennis and Guess pulled over, looked around, looked down at their laps, and then resumed driving. The task force continued trailing. Guess soon ran a stop sign, and Agent Boone directed Officers Scott and McAndrew to attempt a stop. The officers activated their emergency equipment, Guess slowed and nearly came to a stop when, suddenly, he accelerated and fled. A high-speed chase ensued, leading the officers through residential neighborhoods and a Waffle House parking lot at speeds reaching 70 miles per hour. At one point, Officer McAndrew observed the car slow down, allowing Dennis to discard a gun and, several moments later, a bag containing a white substance, and then speed up once more. Officer McAndrew immediately radioed his observations.

Guess eventually came to a stop, and the officers pulled Dennis and Guess out of the car. They found a bag of what looked like narcotics concealed in Guess's anal cleft, plastic baggies in Guess's pockets, and a scale in the driver-side door pocket not visible from the passenger's seat. Nothing was found on Dennis, but a loaded gun and another bag containing what appeared to be narcotics were found along the flight route—exactly where Officer McAndrew indicated they would be.

The officers did not go back to the plaza until several months later, long after any possible plaza-shop camera footage had been erased. They did not investigate any ties Dennis or Guess might have had to broader criminal enterprises. P was never arrested. But the officers did conduct a limited forensic analysis of the items recovered after the pursuit. Laboratory testing determined that the packet Dennis discarded contained about 33 grams of heroin mixed with caffeine and the substance Guess secreted away constituted about 3 grams of cocaine base (crack cocaine). The laboratory then tested the residue on the scale and found traces of cocaine, heroin, fentanyl, and caffeine, among others. Another laboratory tested the gun and the heroin packet—but not the scale—for DNA but could not obtain a usable sample. No one dusted for fingerprints.

B.

The grand jury indicted Dennis and Guess on four counts each: conspiracy to possess with intent to distribute heroin, cocaine base, and fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count I); possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count II); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924 (c)(1)(A) and 2 (Count III); and being felons in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2 (Count IV). A joint trial began.

During voir dire, the trial court asked the 56 venirepersons a set list of questions. The court followed up with select venirepersons based on their answers, and a few were called to side bar. The prosecutor then peremptorily dismissed two prospective jurors—one Hispanic and one white—and one alternate, also white. Guess's attorney rejected two prospective black jurors. Dennis's attorney struck none.

Both defendants objected to the final composition of the jury. In a "semi sort of Batson motion," Guess's attorney observed that the panel did not represent defendants' peers because it contained not one juror with dark skin, though he clarified that he did not believe "anybody did anything wrong." J.A. 126, 128. The court explained it had no authority to alter the jury unless defendants were prepared to make a formal motion under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Dennis's attorney said she was and challenged the prosecution's peremptory strike of the Hispanic juror, Ms. Ortiz. In response, the prosecutor explained he "was troubled by the fact that [Ms. Ortiz] was a social worker" and was thus likely to "sympath[ize]" with defendants. J.A. 130–31. Dennis's attorney, in turn, pointed out the prosecution accepted another social worker, Ms. Kipper, who was white. But the prosecutor countered Ms. Kipper was a recent victim of an illegal high-speed chase, which allayed concerns over her profession. After hearing the prosecutor's explanation and Dennis's attorney's concession that she "d[id]n't think that personally," the prosecutor was biased "at all," the district court denied the Batson challenge. Id. at 135, 106 S.Ct. 1712. The court did not "think that a prima facie case ha[d] been shown," and, in any event, "the government ha[d] offered a legitimate reason for its determination and a reason for the distinction between the two workers." Id. at 133, 106 S.Ct. 1712.

The case proceeded to trial, where several task-force officers testified about the high-speed chase and the evidence they recovered. The prosecution's expert then opined the amount of heroin alone—about 33 grams, valued at $6,600—indicated Dennis was distributing rather than using the drug, for users typically possess between 0.01 and 1 gram only. He also explained that Guess's hiding of the cocaine signaled distribution because users usually hold cocaine in their pockets or even their hands—somewhere easily accessible. He finally advised that the scale, the gun, and the plastic bags were all tools of the drug-trafficking trade. At the close of the government's evidence, defendants moved for judgments of acquittal under Federal Rule of Criminal Procedure 29 (Rule 29 ). The district court denied the motions, and neither defendant presented any additional evidence. The jury convicted Dennis on all counts and convicted Guess for conspiracy and possession with intent to distribute (Counts I and II).

The district court sentenced Dennis to concurrent 36-month sentences on Counts I, II, and IV, consecutive 60 months on Count III, and 5 years of supervised release. Dennis now appeals, contending the district court erred at three key steps. First, the court wrongly allowed the prosecutor to peremptorily strike Ms. Ortiz. Second, the court improperly denied his Rule 29 motion for acquittal. Third, the court mistakenly instructed the jury there was no legal requirement for the government to use any specific investigative techniques to prove its case, such as fingerprinting or DNA analysis. We address these in turn.

II.

Dennis centers his Batson challenge on the prosecution's strike of Ms. Ortiz, a Hispanic juror with dark skin, which, he argues, impermissibly resulted in a jury without a single person who had dark skin. Batson challenges proceed along a familiar three-step inquiry. A defendant must first make a prima facie showing that a peremptory challenge was based on racial considerations; the burden then shifts to the prosecution to offer a racially neutral reason for the strike; finally, the trial court determines whether a defendant has shown purposeful discrimination. See Snyder v. Louisiana , 552 U.S. 472, 477–78, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). "[T]he prosecutor must give a clear and reasonably specific" race-neutral explanation, and the court must consider ...