Professional Documents
Culture Documents
No. 12-4724
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00125-F-4)
Argued:
Decided:
ARGUED:
Mary
Jude
Darrow,
Raleigh,
North
Carolina,
for
Appellant.
Joshua L. Rogers, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Eric
Andre
Fields
drug-related
appeals
offenses,
his
raising
convictions
several
and
different
I.
Taken in the light most favorable to the Government, the
evidence
adduced
at
following facts.
(4th
Cir.
[Defendants]
trial
established
the
1996)
(en
banc)
(citation
omitted).
In
2011,
Carolina,
where
his
family
lived.
Defendant
worked
Defendant had
J.A.
finalize
Baileys
house
paperwork
for
on
the
the
night
car
2
of
sale,
August
22,
Defendants
2011
to
brother
J.A. 308.
testified that he did not know how or for how long Defendant had
known Bailey.
Also
in
investigating
Carolina.
Summer
a
2011,
drug
They
state
organization
used
and
in
federal
Brunswick
confidential
informant
agents
were
County,
North
to
purchase
cocaine from Jerry Hall (Jerry), who in turn named Eddie Hall
(Eddie) as his drug supplier.
who
began
selling
drugs
for
Bailey
in
1995,
yard
in
Delco,
North
Carolina.
Ballard
testified
that
J.A. 137.
Ballard
and
how
was
Defendant
were
mostly
talking
about
there
no
J.A. 136.
J.A. 77.
J.A. 133.
J.A. 133.
J.A. 127.
However,
therefore
Ballard
could
not
locate
Lewis.
Ballard
information
law
enforcement
gained
from
Ballard
agents
obtained
warrant
to
J.A. 81.
search
On that basis,
Baileys
house
and
the SWAT team, officers watching Baileys house saw Bailey and
his son arrive by car shortly after 9:00 p.m.
to enter the house.
the
house,
Defendant
SWAT
momentarily.
exited
the
front
door
team:
in
and
His
eyes
widened
and
he
froze
hands
moved
retrieving an object.
up
area
As the team
throwing
toward
his
J.A. 155.
motion
and
waist
As he did so,
as
if
he
was
law
enforcement
saw
black
object leave his hands and go over a privacy fence on that side
of the house.
J.A. 154.
J.A. 194.
Defendant complied.
Inside the fence, officers found two rectangular, flattened
packages wrapped in a black-like tissue paper tape . . . .
J.A. 229.
Baileys
house,
the
officers
found
vacuum-
the
names
$2,750.
on
the
J.A. 88.
ledger
was
J.A. 238.
Dog,
listed
First
next
to
ledger.
However, law enforcement found several documents belonging
to Defendant in different parts of Baileys home.
Specifically,
bathroom
Defendants
and
commercial
receipt
drivers
acknowledging
license
in
the
revocation
garage
of
area.
They also found two uncashed payroll checks (one issued April
15,
2011
for
$387.53,
the
second
issued
April
22,
2011
for
J.A. 134.
According to Ballard,
J.A. 134-35.
6
to
five
hundred
grams
or
more
of
cocaine.
jury
found
J.A. 339.
Defendant
guilty
on
both
the
conspiracy
II.
A.
Defendant
argues
that
there
is
insufficient
evidence
to
United
one:
The
Court
failure is clear.
does
so
only
where
the
prosecutions
is
convinced
of
guilt
beyond
reasonable
doubt,
but,
in
whether
the
the
light
evidence
most
favorable
adduced
at
trial
to
the
could
Government,
support
any
of
fact
could
accept
as
adequate
and
sufficient
to
might
have
been
insufficient
to
establish
[the
must
uphold
infer
from
the
existed.
conviction
totality
of
where
the
rational
evidence
that
jury
could
conspiracy
in
context
and
in
the
light
most
favorable
to
the
Id.
1.
Defendant contends that there is insufficient evidence to
sustain
the
jurys
verdict
finding
him
guilty
of
possession
possession
with
the
intent
to
distribute
cocaine,
To
the
knowingly
distribute it.
possessed
cocaine
with
an
intent
to
of
drug
Penniegraft,
641
F.3d
at
constructive
possession
by
may
572.
be
actual
The
or
constructive.
government
demonstrating
that
may
prove
defendant
Id.
possession
indicate
9
intent
to
distribute.
Young, 609 F.3d at 355 (citing United States v. Rusher, 966 F.2d
868, 878 (4th Cir. 1992) (Intent to distribute may be inferred
from the quantity of drugs possessed.)).
Here, there is substantial evidence to uphold Defendants
conviction of possession with the intent to distribute cocaine.
Several witnesses testified that when Defendant left the front
door area of Baileys home and appeared to spot the approaching
SWAT team, he threw a black object over the fence of Baileys
house.
in
the
J.A. 154.
black
covering
from
behind
the
fence.
J.A.
157.
cocaine
approximately
5,000
individual
dosages
in
In the light
possession conviction.
2.
Defendant also challenges his conviction for conspiracy to
distribute cocaine.
knowingly
and
voluntarily
became
part
of
the
conspiracy.
conspiracy
is
by
its
nature
clandestine
and
in
the
conspiracy,
circumstantial evidence.
been
proved,
the
are
Id. at 857.
evidence
need
generally
proved
by
only
establish
slight
Further,
the
trailer
to
third
sale;
(3)
evidence
that
the
drug
conspiracy
conviction:
(1)
the
defendants
of
possession
of
multiple
exclusively
for
large
amount
calling
cell
a
of
cash;
phones,
(3)
the
including
co-conspirator;
and
defendants
one
he
(4)
used
expert
841 F.2d
12
Here,
as
prosecutions
in
those
failure
is
(quotation
marks
presented
substantial
Numerous
cases,
cannot
clear.
omitted).
government
we
Foster,
Without
evidence
507
question,
that
witnesses,
conclude
that
F.3d
the
at
245
government
conspiracy
including
the
Ballard,
existed.
testified
about the drug distribution ring that started with Bailey and
extended to others including the Halls.
the
government
had
to
establish
was
slight
connection
looking,
as
we
must,
at
the
complete
F.3d
at
863,
the
evidence
shows
that
Defendant
noted
to
Ballard, who had sold drugs for Bailey since 1995, a lack of
marijuana and cocaine, and the subject of Bailey came up.
On
Defendant
to
come
over
to
his
house.
As
requested,
Law enforcement
same
place
Ballard
testified
Bailey
had
instructed
the
Defendant
Ballard
possession
possessed
had
just
conviction.)
was
uniquely
returned
to
And
packaged
Bailey.
the
cocaine
like
This
the
that
cocaine
evidence,
taken
to
sustain
the
jurys
verdict.
Accordingly,
we
the
government
argued
that
[Ballard]
J.A.
Ballard went to go drop off the cocaine and his cousin came to
pick it up.
J.A. 350.
again
cousin.
stated
that
Emanuel
Lewis
is
the
Defendants
J.A. 353.
Defendant
offered
counter-argument
on
the
To the
matter:
to
find
him
guilty
of
something.
J.A.
339.
Alerre,
unless an appellant can show that (1) an error was made, (2) it
was
plain,
rights.
and
(3)
it
affected
the
appellants
substantial
the
fairness,
proceedings.
integrity,
Id.
or
(citation
public
and
reputation
quotation
of
marks
omitted).
In this case, the government concedes that the remarks at
issue were improper.
298
(4th
Cir.
1998)
going
outside
the
evidence,
the
marks
omitted)).
However,
[v]iewed
in
context,
the
United
determining
whether
defendants
substantial
rights
guilt
deliberately
of
the
accused;
placed
before
(4)
the
whether
jury
to
the
comments
divert
were
attention
to
by
defense
counsel;
and
(6)
whether
curative
misconduct
deprived
Defendant
of
fair
trial.
First and foremost, that Defendant and Lewis were cousins was
largely irrelevant to the governments case against Defendant
for possession of cocaine with intent to distribute.
As held
above,
to
the
government
presented
substantial
evidence
show
it.
Further,
while
Defendant
contends
that
[t]here
was
the
government
Defendants
proffered
connection
to
Bailey
too,
then,
that
substantial
such
evidence
that
his
of
conspiracy
Defendant
and
Lewis
were
cousins
was
largely a sideshow.
Defendant points to the likely cause of the misstatements:
Since this was a re-trial after a hung jury, the erroneous
statements
of
the
prosecutor
may
testimony,
or
may
have
information
been
have
come
from
gleaned
the
earlier
through
the
Thus even Defendant does not suggest, nor does anything else,
that the comments were deliberately placed before the jury for
nefarious purposes.
have
lost
sight
relationship
had
defense
counsel
stating
that
of
not
the
been
himself
[t]he
fact
that
introduced
brought
fact
Lewiss
that
the
my
into
issue
client
and
Defendants
evidence,
up
to
is
the
since
jury,
related
to
17
No, thats not the only reason to find him guilty of something.
J.A. 339.
Given that defense counsel not only failed to object to,
but
even
himself
relationship,
it
mentioned,
is
not
Lewiss
surprising
that
and
the
Defendants
district
court
J.A.
319.
In
sum,
misstatements
we
cannot
undermine[d]
conclude
the
that
fundamental
the
prosecutors
fairness
U.S.
at
16.
We
therefore
will
not
upend
of
the
Young,
Defendants
error
in
failing
to
specifically
address
the
We
the
applicable
United
States
Sentencing
Guidelines
United States v.
must
facts
before
sentence.
then
conduct
it,
Id.
an
select
individualized
sentence,
and
The sentencing
assessment
explain
the
of
the
chosen
356
(2007).
And
district
court
generally
need
not
United
on
J.A. 372.
the
Section
sides presentation.
3553(a)
factors
and
commented
on
each
J.A. 376.
J.A. 378.
factors
and
imposed
within
Guidelines
72-month
sentence.
In sum, the record shows that the district court considered
the pertinent Section 3553(a) factors, made an individualized
sentencing
determination,
and
explained,
even
if
relatively
sentence.
III.
For
the
foregoing
reasons,
Defendants
convictions
and
sentence are
AFFIRMED.
20