USA. v. Stewart

• Decision Date: 05 December 2000
• Docket Number: No. 98-4155,N,No. 98-4192,98-4155,98-4192
• Citation: 256 F.3d 231
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROGER WINFRED STEWART, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNEVER LIVINGSTON, a/k/a Fatta, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUNIOR ANTHONY SIMMS, a/k/a Glandan Steve Lynch, a/k/a Steve Brown, a/k/a Leroy Sims, a/k/a Eric Brooks, a/k/a "Tallest," a/k/a "Sammo," a/k/a Mike Smith, Defendant-Appellant. o. 98-4177, Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 231

256 F.3d 231 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROGER WINFRED STEWART, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNEVER LIVINGSTON, a/k/a Fatta, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUNIOR ANTHONY SIMMS, a/k/a Glandan Steve Lynch, a/k/a Steve Brown, a/k/a Leroy Sims, a/k/a Eric Brooks, a/k/a "Tallest," a/k/a "Sammo," a/k/a Mike Smith, Defendant-Appellant.

No. 98-4155, No. 98-4177,No. 98-4192

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 5, 2000

Decided: July 6, 2001

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Samuel Warrenton Meekins, Jr., WOLCOTT, RIVERS, WHEARY, BASNIGHT & KELLY, P.C., Virginia Beach, Virginia, for Appellant Livingston; Christopher Ford Cowan, COWAN, NORTH & LAFRATTA, L.L.P., Richmond, Virginia, for Appellant Stewart; Charles Russell Burke, Virginia Beach, Virginia, for Appellant Simms. Fernando Groene, Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: David M. Bastiaans, WOLCOTT, RIVERS, WHEARY, BASNIGHT & KELLY, P.C., Virginia Beach, Virginia, for Appellant Livingston. Helen F. Fahey, United States Attorney, Sharilyn Yountz, Third Year Law Student, Norfolk, Virginia, for Appellee.

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions by published opinion. Judge Williams wrote the opinion, in which Judge Michael and Judge Motz joined.

OPINION

WILLIAMS, Circuit Judge:

In these consolidated appeals, Roger Winfred Stewart, Dennever Livingston, and Junior Anthony Simms (collectively,"Appellants"), raise numerous challenges to their convictions and sentences following a federal jury trial in which each was found guilty of various charges related to money laundering and/or drug trafficking.¹ Finding no reversible error with respect to Simms, we affirm his convictions and sentences. However, we vacate Stewart's convictions, sentences, and assessments due to improper venue. We also remand for the district court to vacate Livingston's substantive money laundering convictions under Counts 115-120 as multiplicitous and to strike any assessments applicable to those counts. We affirm the remainder of Livingston's convictions and sentence.

I.

A.

From 1991 through 1997, Stewart, Livingston, and Simms were involved in various roles in the bi-coastal distribution of large quantities of marijuana. Livingston obtained marijuana in Los Angeles, California from Mexican suppliers and shipped it to cities in the Eastern District of Virginia and elsewhere via overnight courier. Simms was one of the conspirators who retrieved the marijuana in Virginia and repackaged and redistributed it to wholesalers. Once the marijuana was distributed, Simms, along with other conspirators, collected the drug proceeds and sent them back to Livingston in Los Angeles, via Western Union money transfers and in parcels sent by overnight courier.

Livingston recruited various persons, including Stewart, to receive the wire transfers and money parcels in Los Angeles. From February 1994 to March 1997, Stewart received 136 Western Union wire transfers in Los Angeles totaling $345,840. Additionally, from October 1995 to April 1997, Stewart received 56 parcels of overnight mail in Los Angeles containing money from drug proceeds. After receiving the packages and money from Western Union, Stewart would deliver the packages and money to Livingston.

B.

In April 1997, Stewart, Livingston,² and Simms were indicted in the United States District Court for the Eastern District of Virginia on the following charges: (1) conspiracy to possess with the intent to distribute and distribution of more than one thousand kilograms of marijuana, in violation of 21 U.S.C.A. S 841(a)(1) (West 1999) and S 846 (West 1999 & Supp. 2000); (2) conspiracy to engage in money laundering, in violation of 18 U.S.C.A. S 1956(h) (West 2000); and (3) money laundering to promote and disguise drug trafficking, in violation of 18 U.S.C.A. S 1956(a)(1)(A)(i) (West 2000). Under the same indictment, Livingston and Simms were charged with money laundering to promote and disguise drug trafficking, in violation of 18 U.S.C.A. S 1956(a)(1)(B)(i) (West 2000). Livingston and Simms also were charged with possession with intent to distribute marijuana, in violation of 21 U.S.C.A. S 841(a)(1) and 18 U.S.C.A. S 2 (West 2000), and Simms was indicted on a charge of engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C.A. S 848 (West 1999 & Supp. 2000), and on charges of illegal use of a communication device, in violation of 21 U.S.C.A. S 843(b) (West 1999 & Supp. 2000), and 18 U.S.C.A. SS 2 & 3237(a) (West 2000). In July 1997, Simms was indicted on one count of attempted possession with intent to distribute cocaine, in violation of 18 U.S.C.A. S 2, one count of possession with intent to distribute cocaine, in violation of 21 U.S.C.A. S 841(a)(1), and three counts of knowingly carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.A. S 924(c)(1) (West 2000).

Following a jury trial that began on October 20, 1997 and concluded on November 13, 1997, Stewart was found guilty of eleven counts of money laundering to promote and disguise drug trafficking and was found not guilty of all conspiracy charges. Livingston was found guilty of one count of conspiracy to possess with intent to distribute marijuana, one count of possession with intent to distribute marijuana, one count of conspiracy to launder money, and twelve counts of money laundering to promote and disguise drug trafficking. Simms was found guilty of one count of conspiracy to possess marijuana with the intent to distribute, one count of operating a CCE, one count of conspiracy to launder money, forty-six counts of money laundering to promote and disguise drug trafficking, four counts of illegal use of a communication device, six counts of possession with intent to distribute marijuana, and three counts of knowingly carrying a firearm during and in relation to a drug trafficking offense. Simms was found not guilty of attempting to possess with intent to distribute cocaine and of possession with intent to distribute cocaine, and, on Simms's motion prior to the jury's verdict, the district court dismissed one count of illegal use of a communication device.

Stewart was sentenced to concurrent sentences of 135 months imprisonment on each of his eleven money laundering convictions. Stewart received three years of supervised release and was ordered to pay a special assessment of $950.00. Livingston was sentenced to 360 months imprisonment, consisting of concurrent sentences of 360 months on his conviction for conspiracy to possess marijuana with intent to distribute and 240 months on each of his other convictions. Livingston received ten years of supervised release and was ordered to pay a special assessment of $1,500. Simms was sentenced to 832 months imprisonment, consisting of 292 months for operating a CCE, 60 months for one count of carrying a firearm during and in relation to a drug trafficking offense, and 240 months each for the remaining two counts of carrying a firearm during and in relation to a drug trafficking offense, all of which were imposed consecutively. Simms's term of imprisonment also consisted of 292 months on the conspiracy to launder money charge, 240 months on each of Simms's forty-six convictions for money laundering to promote and disguise drug trafficking, 48 months on each of his four convictions for illegal use of a communications device, 60 months on each of his five convictions for possession with intent to distribute marijuana, and 240 months on Simms's final conviction for possession with intent to distribute marijuana, all of which were imposed concurrently. Simms received five years of supervised release and was ordered to pay a special assessment of $4,800.

Stewart, Livingston, and Simms filed their notices of appeal on February 26, February 27, and February 28, respectively, from their convictions and sentences. On March 11, 1998, we consolidated these appeals.

On appeal, Stewart challenges his money laundering convictions on several grounds, including improper venue. Livingston challenges the district court's refusal to grant Livingston a mistrial, its denial of his motion to dismiss for improper venue, its denial of his motion for continuance, the district court's refusal to strike one set of money laundering counts as multiplicitous, the sufficiency of the evidence as to money laundering, the sufficiency of the evidence as to possession with intent to distribute marijuana, the sufficiency of the evidence as to conspiracy to possess with intent to distribute marijuana, whether the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), by failing to instruct the jury that it had to determine drug quantity and type beyond a reasonable doubt, whether the district court erred in computing drug weights when determining Livingston's base offense level, and whether the district court erred by applying a two level enhancement for obstruction of justice. Simms argues that his CCE conviction should be reversed because the district court failed to instruct the jury that they were required to agree unanimously on the specific violations comprising the"continuing series of violations" of the CCE. Simms also argues that his CCE conviction should be reversed because the evidence failed to prove that he acted as a manager, supervisor, or organizer in furtherance of the predicate offenses of the CCE or that he worked in concert with five or more others. Finally, Simms alleges that his convictions for possession...