USA. v. Stitt

Decision Date30 October 2000
Docket NumberNo. 99-2,99-2
Citation250 F.3d 878
Parties(4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD THOMAS STITT, a/k/a Patrick V. Hardy, a/k/a Tom Tom, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (CR-98-47) [Copyrighted Material Omitted] COUNSEL ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO- CIATES, Richmond, Virginia, for Appellant. Fernando Groene, Assistant United States Attorney, Darryl James Mitchell, Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Melanie H. Moore, GERALD T. ZERKIN & ASSOCIATES, Rich- mond, Virginia, for Appellant. Helen F. Fahey, United States Attor- ney, Norfolk, Virginia, for Appellee.

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Williams wrote the opinion, in which Judge Widener and Judge Motz joined.

OPINION

WILLIAMS, Circuit Judge:

Richard Thomas Stitt was convicted in the United States District Court for the Eastern District of Virginia on numerous federal drug and firearms-related charges, including three counts of murder during a continuing criminal enterprise (CCE) relating to a large drug distri- bution ring he led in Virginia and North Carolina. Following his jury conviction and the jury's recommendation, after a penalty phase hear- ing, that a sentence of death be imposed, the district court sentenced Stitt to death plus 780 months in prison.1 On direct appeal, Stitt chal- lenges his convictions and sentences on multiple grounds. Stitt argues that the district court committed plain error when it did not instruct the jury that it had to be unanimous as to which three violations of Title 21 constituted the series of transactions that made up the CCE and as to which five persons Stitt managed or supervised during the CCE, that the district court abused its discretion in admitting certain evidence relating to circumstances surrounding a traffic stop, that Stitt was entitled to a jury instruction and to a mitigating factor that unequivocally informed the jury that he would be sentenced to life in prison without the possibility of parole or release if he was not sen- tenced to death, that the district court committed reversible error by giving confusing instructions to the jury, that the district court abused its discretion by permitting the United States to introduce victim impact testimony in rebuttal during the penalty hearing after Stitt introduced mitigating evidence, and that the Government's use of the testimony of cooperating witnesses violated 18 U.S.C.A. S 201(c)(2) (West 2000) because witnesses were promised benefits in exchange for their testimony. Finding no reversible error, we affirm.

I.

On April 14, 1998, a federal grand jury in Norfolk, Virginia indicted Stitt and twelve other defendants in a thirty-one count indictment that charged them with numerous violations of federal narcotics and firearms laws and drug-related murders. A two-month long jury trial against Stitt and co-defendants Kermit Brown, Robert Mann, and Percell Davis2 began on September 8, 1998 in the Eastern District of Virginia, Norfolk Division. At trial, the Government introduced evidence that Stitt was the leader of a CCE that distributed in excess of 150 kilograms of crack cocaine in the Portsmouth, Virginia area and in Raleigh, North Carolina from late 1990 through April 1998. The Government's evidence also showed that Stitt ordered the three homicides with which he was charged to further the aims of the CCE. The jury returned guilty verdicts against all four defendants.3

Thereafter, pursuant to 21 U.S.C.A. S 848(g), a penalty phase hearing began during which Stitt and the Government presented to the jury information relevant to the aggravating and mitigating factors as to the three murder convictions that occurred during the CCE. After hearing testimony for five days and deliberating for three days, the jury unanimously recommended that Stitt be sentenced to death on each of the three counts of murder during a CCE. Following the jury's recommendation, the district court sentenced Stitt to death on each of his three convictions for murder during a CCE. In addition, Stitt was sentenced to a total of 780 months to be served consecutively for his two convictions of using and carrying a firearm during and in relation to a crime of violence and for his two convictions of using and carrying a firearm during and in relation to a drug trafficking crime. We now address Stitt's assignments of error, first as to his conviction and then as to his sentence. (R. 100.)

II. THE RICHARDSON ERROR

Relying upon the Supreme Court's decision in Richardson v. United States, 526 U.S. 813 (1999), Stitt claims that the district court committed plain error when it did not instruct the jury that it had to be unanimous as to which three violations of Title 21 constituted the series of transactions that made up the CCE and as to which five per- sons Stitt managed or supervised during the CCE.

A.

After Stitt was convicted and sentenced, the Supreme Court held in Richardson that, in a prosecution for engaging in a CCE under 21 U.S.C.A. S 848, the jury "must agree unanimously about which three crimes the defendant committed," Richardson , 526 U.S. at 818, to satisfy the statutory requirement that the defendant's behavior is "part of a continuing series of violations" described in 21 U.S.C.A. S 848(c)(2). Because Stitt did not object to the jury instructions before the district court, we review those instructions for plain error. See United States v. Rogers, 18 F.3d 265, 268 (4th Cir. 1994) (stating standard of review where defendant fails to object at trial).

To establish plain error under Federal Rule Criminal Procedure 52(b), Stitt must show (1) that an error occurred; (2) that the error was plain; and (3) that the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). "Rule 52(b) is permissive, not mandatory." Id. at 735. Even where the first three requirements of plain error are met, the decision to correct the error is left to the discretion of the court of appeals "and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integ- rity or public reputation of judicial proceedings." Id. at 732 (internal quotation marks omitted).

In this case, the first element of the Olano test -- that there be error -- is met because the trial court, in compliance with then-existing Fourth Circuit precedent, failed to instruct the jury on the unanimity requirement of 21 U.S.C.A. S 848. See United States v. Hall, 93 F.3d 126, 129-30 (4th Cir. 1996) (holding that under the plain meaning of S 848, "as long as each juror is satisfied in his or her own mind that the defendant committed acts constituting the series, the requisite jury unanimity exists"). Likewise, the error was plain. As the Supreme Court noted in Johnson v. United States, 520 U.S. 461 (1997), "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be plain at the time of appellate consideration." Id. at 468 (internal quotation marks omit- ted); see also United States v. Richardson ("Nathaniel Richardson"), 233 F.3d 223, 228 (4th Cir. 2000) (noting that an error is plain when the action is contrary to the law at the time of appeal).

Although the first two Olano elements have been met, Stitt cannot satisfy the third element -- that the error affect substantial rights. The requirement that the error affect substantial rights"typically means that the defendant is prejudiced by the error in that it affected the out- come of the proceedings." United States v. Rolle, 204 F.3d 133, 138 (4th Cir. 2000) (internal quotation marks omitted). When reviewing for plain error, this Circuit incorporates the harmless error test in the third prong of its plain-error analysis but shifts the burden of proof to the defendant to prove that the error was not harmless. See United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998); see also United States v. Floresca, 38 F.3d 706, 713 (4th Cir. 1994) (en banc) ("Rule 52(a) squarely defines harmless error as error that does not affect sub- stantial rights."). Although Stitt argues that the district court's failure to instruct the jury on the unanimity requirement constitutes structural error and, thus, is not subject to harmless error analysis, we disagree. Indeed, this issue has already been settled in this Circuit. We recently joined our "sister circuits in holding that a Richardson error is not a structural defect; rather . . . it is subject to harmless error analysis." United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000); see also Nathaniel Richardson, 233 F.3d at 228 (citing Brown for the conclu- sion that "Richardson errors which have been preceded by objection at trial are subject to harmless error analysis").

Because Stitt did not object to the district court's failure to instruct the jury that it had to be unanimous as to which three violations of Title 21 constituted the series of transactions that made up the CCE, "we cannot simply review to determine whether the instructional error was harmless beyond a reasonable doubt." Hastings, 134 F.3d at 243. Under plain-error review, it is not enough for Stitt"to establish that it is impossible to tell whether the verdict returned by the jury rested solely on the misinstruction, for such a showing would establish only that the error was not harmless." Id. Rather, in order to establish the actual prejudice required by the third prong of plain-error review, [Stitt] must demonstrate that the erroneous[ ] instruction given by the district court resulted in his conviction." Id. at 244. Stitt was con- victed of three counts of possession...

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