United States v. Hackley

• Decision Date: 20 December 2011
• Docket Number: No. 10–4069.,10–4069.
• Citation: 662 F.3d 671
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Richard HACKLEY, IV, a/k/a J.R., a/k/a Baby J, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

662 F.3d 671

UNITED STATES of America, Plaintiff–Appellee,

v.James Richard HACKLEY, IV, a/k/a J.R., a/k/a Baby J, Defendant–Appellant.

No. 10–4069.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 22, 2011.Decided: Dec. 6, 2011.As Corrected Dec. 20, 2011.

ARGUED: Helen Eckert Phillips, McGlothlin and Phillips, PPLC, Lebanon, Virginia, for Appellant. Jean Barrett Hudson, Office of the United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, Robert N. Tracci, Special Assistant United States Attorney, Office of the United States Attorney, Charlottesville, Virginia, for Appellee.

Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge DAVIS and Judge DIAZ joined.

OPINION

DUNCAN, Circuit Judge:

James Richard Hackley (“Hackley”) was convicted of several offenses related to his sale of cocaine base to a government informant and subsequent efforts to have that informant—the lead witness in the government's case against him—murdered. Hackley challenges his convictions, the joinder of the charges into a single trial, the court's refusal to grant him new counsel, and his sentence. Although the facts in this case come perilously close to the lower boundary of what we will accept as substantive evidence of a conspiracy to distribute drugs, for the reasons discussed below, we affirm.

I.

A.

David Jackson, a longtime crack user who had worked as a confidential informant since 1994, brought Hackley to the government's attention in May 2008. Jackson worked for a tree service company and was out doing tree work in Winchester, Virginia on May 18, 2008, when he saw Hackley drive up in a white vehicle. They had known each other since 1992, but had not seen each other for about a year. Jackson had never purchased cocaine from Hackley before, but knew from previous discussions with him that Hackley had sold cocaine in the past. They chatted about how they had been doing, and then Jackson asked Hackley if he had cocaine. At trial, this was how Jackson described their conversation:

A. ... I asked him if he was still getting cocaine.

Q. Is that the word you used? Were you that specific?

A. Yeah, yeah, yeah, still getting that shit, cocaine, and he said yeah. Then I asked him for an eight-ball. He told me I was lucky, he just come back from Maryland, pull over to the parking lot, and I bought some crack off of him.

Q. Had you purchased crack cocaine from him in the past?

A. No.

Q. Prior to that you had never purchased cocaine from him?

A. No.

Q. Then why was it that you would have this conversation about crack cocaine?

A. I've known the man since 1992. We've had discussions before, but I've never bought.

J.A. 170–71.

The purchase took place in Hackley's vehicle. After Jackson got into the vehicle, he pulled out $100 for the purchase and saw Hackley reach underneath his seat and pull out a brown paper bag. Hackley pulled out a piece of crack cocaine that was approximately the size of “two golf balls” and “broke off a piece” for Jackson. J.A. 173–74.

That evening, Jackson contacted Agent Kevin Coffman, an officer with the Northwest Virginia Regional Drug Task Force whom Jackson had known for “a couple years.” J.A. 67. Jackson told Coffman that he had purchased crack from Hackley earlier that day.

The government arranged for Jackson to make six controlled purchases from Hackley between May 20, 2008, and August 20, 2008. During these purchases, Hackley sold Jackson a total of 6.554 grams of cocaine base in the form of crack for $1,050. In addition, Jackson made unauthorized purchases of crack for his personal use. At some point that summer, Hackley explained to Jackson that he was receiving the cocaine from his “family” in Maryland.

B.

Hackley was arrested on August 20, 2008, and held at the Warren County Jail in Front Royal, Virginia. While incarcerated, he wrote letters to four different female friends in which he discussed paying Jackson not to testify or persuading him to lie. These letters expressed that he “would rather if [Jackson] did not show up,” J.A. 589, and that “the only way out [of jail] is if [Jackson] don't show up,” J.A. 608. He also spoke with his fellow inmate, Ray Johnson, about not wanting Jackson to appear in court. Hackley also told Johnson that he owned a .380–caliber handgun. While it is unclear whether Johnson or Hackley first proposed killing Jackson, at some point that topic arose. Hackley told Johnson that “David Jackson needed to be killed so he didn't show up” in court. J.A. 273. Johnson testified that Hackley's desire to have Jackson killed “was pretty set in stone.” Id.

Unfortunately for Hackley, Johnson contacted federal agents and told them that Hackley was discussing having their witness killed. Johnson became a confidential informant and began cooperating with the government in its investigation of Hackley's murder for hire scheme.

With Johnson's cooperation, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) sent Special Agent Leonard Codispot to pose as an inmate at the Warren County Jail. Johnson told Hackley that Codispot could help him have Jackson killed. Codispot testified that Hackley initiated a conversation by saying to him “I got a problem. I need this guy taken out. You know, he's testifying against me.” J.A. 350.

Codispot testified that he asked Hackley if there was “a certain way he would like to have David Jackson killed,” J.A. 277, asking, “Do you want me to stab him, cut his head off or shoot him with a gun?” J.A. 351–52. Hackley “didn't care how it was done, he just wanted Mr. Jackson gone forever.” J.A. 352. Codispot asked him, “[D]o you want [me] to just take him away for a while and make him disappear for a little bit?” J.A. 351. Hackley said “no, he wanted him gone forever.” J.A. 351.

Codispot also testified that Hackley mentioned that he had a gun hidden at Irvette Reaves's house that Codispot could “probably get,” J.A. 351, but that he no longer had her phone number. Reaves was Hackley's girlfriend but apparently disassociated herself after seeing another woman with him in prison. Hackley wrote to tell her where the gun was hidden and to ask her to move it. Despite their falling out, Reaves moved the gun to her new home and kept it until agents searched her house on April 28, 2009.

Hackley offered Codispot $5,000 or his motorcycle in exchange for his help. He twice wrote to another girlfriend, Susie Dearing, asking her to have keys made for the bike and telling her that Codispot was going to come inspect it. He asked Dearing to damage one of the keys to the bike so that it could not start it. Hackley wrote to Dearing that he was concerned that Codispot was going to try to cheat him. Johnson gave Dearing's address and phone number to Codispot so that he could inspect the motorcycle.

After Codispot left the jail, agents staged the death of Jackson, complete with a picture in a fake news story. According to Johnson, when Hackley was given a copy of the article, Hackley was “[e]cstatic.” J.A. 291.

C.

On April 22, 2009, a federal grand jury for the Western District of Virginia returned a seven-count indictment against Hackley. Count One charged Hackley with conspiracy to distribute five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. Counts Two through Seven charged Hackley with distribution of crack in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

The grand jury returned a superseding indictment on June 18, 2009. This indictment retained the original seven counts and added four additional charges: (1) murder for hire, in violation of 18 U.S.C. § 1958; (2) solicitation to commit murder for hire, in violation of 18 U.S.C. §§ 373 and 1958; (3) obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2); and (4) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Hackley had entered into a plea agreement with the government on September 30, 2009, but sought to withdraw from that plea agreement on October 6, 2009, a little more than a week before trial. Hackley and his assigned attorney moved on October 6th for the court to appoint another lawyer to represent him. The district court denied this motion.

On October 8, 2009, Hackley filed a Motion for a Separate Trial on Count Eleven (felon in possession of a firearm). The district court denied this motion on October 15, 2009.

The government filed a Notice of Enhanced Punishment pursuant to 21 U.S.C. § 851 on October 9, 2009.

On October 19th and 20th, Hackley was tried before a jury in Charlottesville, Virginia. At trial, after the government rested, Hackley moved for a judgment of acquittal on Counts Nine (solicitation to commit murder for hire) and Eleven. The court denied the motion. Hackley requested a jury instruction on entrapment with respect to Count Eight—murder for hire—which the district court denied. On October 21, the jury found him guilty on all eleven counts. Thereafter, Hackley made a renewed motion for judgment of acquittal on Count Nine, and this time on Count One as well. The district court denied the motion on December 3, 2009.

On January 7, 2010, the district court sentenced Hackley to a term of 306 months in prison. The court calculated Hackley's criminal history as eight points, based on ten convictions, the oldest of which was a conviction in October 1992 for distribution and conspiracy to distribute cocaine. Offenses older than 15 years do not usually result in enhancements under U.S.S.G. Chapter 4, Part A § 4A1.2(e). The court, however, at the suggestion of the probation office in the presentence report (“PSR”), included Hackley's 1992 conviction because his incarceration continued until September 23, 1993, less than fifteen years before May 20, 2008. Including the 1992 conviction moved his criminal history from Category III to Category IV and increased the...