United States v. Donald Bush

Citation: Not availableDocket: 18-4385

Court: Court of Appeals for the Fourth Circuit; November 26, 2019; Federal Appellate Court

Original Court Document: View Document

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Donald Sheman Bush appeals his convictions and sentence for drug conspiracy and related offenses from the United States District Court for the District of South Carolina. He was convicted in October 2017 for conspiring to possess and distribute cocaine and cocaine base, as well as for using a communication facility to facilitate drug felonies. Bush raises two main challenges on appeal: the admissibility of a state court record from his 2013 conviction for distribution of cocaine base, and the prosecution's alleged failure to correct false testimony from a witness.

The federal grand jury indicted Bush and fifteen others on January 18, 2017, primarily following an FBI investigation into drug distribution in Sumter, South Carolina. The conspiracy charge against Bush claimed that he conspired to possess and distribute significant quantities of cocaine and cocaine base from 2008 to early 2017, in violation of 21 U.S.C. § 846. The two additional charges against him involved the use of a telephone for drug-related activities, violating 21 U.S.C. § 843(b). Unlike his co-defendants, Bush opted for a jury trial.

Before trial, the district court considered the admissibility of Bush's 2013 state conviction record, which the prosecution argued was "intrinsic" evidence relevant to the conspiracy and thus admissible without regard to Rule 404(b) of the Federal Rules of Evidence. Bush contended the record was "extrinsic" and should be excluded under Rule 404(b). The court ultimately ruled in favor of the prosecution's position. The appellate court, led by Judge King, rejected both of Bush's challenges and affirmed the convictions.

During pretrial proceedings, the district court addressed Rule 404(b) issues, distinguishing between intrinsic evidence, which is not governed by Rule 404(b), and extrinsic evidence, which is. The court opted not to make a pretrial ruling on the admissibility of the State Conviction Record, deferring that decision until trial. In October 2017, during a three-day trial, eight of Bush's coconspirators testified, portraying him as a key figure in a cocaine distribution network in Sumter. They detailed their cocaine transactions with Bush from about 2008 until 2017, excluding an eighteen-month period when he was incarcerated. The coconspirators confirmed Bush's near-daily involvement in drug transactions.

At the end of the first trial day, the prosecution requested a ruling on the State Conviction Record's admissibility. Citing the 1996 case United States v. Chin, the court determined that the record was intrinsic evidence relevant to the conspiracy, as Bush had pleaded guilty to distributing crack during the conspiracy period, corroborated by witness testimony. Consequently, the record was admitted without the restrictions of Rule 404(b).

Following the ruling, the prosecution presented further testimony, including from FBI Agent Kevin Conroy, who detailed the FBI's investigation into Bush's drug activities. The State Conviction Record was introduced during Conroy's testimony, identifying Bush’s guilty plea for distribution of cocaine base in May 2013. Bush did not present any evidence in his defense. On October 18, 2017, the jury convicted him on conspiracy and substantive drug charges, attributing over five kilograms of cocaine and a significant amount of cocaine base to him. Due to the jury's findings and Bush's criminal history, he faced a mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) & 846.

On May 31, 2018, Bush was sentenced to life in prison on Count 1, with concurrent five-year sentences on Counts 21 and 22, due to prior felony convictions for cocaine base offenses. Bush appealed the criminal judgment, asserting jurisdiction under 28 U.S.C. § 1291, but did not challenge his sentence. His primary argument on appeal concerns the trial court's admission of the State Conviction Record. Bush argues that this ruling should be reviewed de novo, citing a Third Circuit decision, while the government contends that the standard of review should be for abuse of discretion. Though some sister circuits support Bush's view, the established precedent in this court is to review evidentiary rulings for abuse of discretion, which this panel must follow unless overruled by an en banc decision or the Supreme Court.

Bush contends that the trial court erred by admitting the State Conviction Record as intrinsic evidence to the conspiracy charge, arguing it was extrinsic and therefore governed by Rule 404(b), which generally prohibits the admission of evidence of other crimes to prove character. Rule 404(b)(2) allows for certain exceptions, but applies only to extrinsic evidence. The court's guidance clarifies that evidence is considered intrinsic if it is intertwined with the charged offense or necessary for understanding the context of the crime. The court found that the trial court did not abuse its discretion in ruling that the State Conviction Record was intrinsic, as the conspiracy charge involved Bush’s ongoing criminal activities related to cocaine from 2008 to January 2017, which were integral to the witness accounts and the overall circumstances of the charges.

Bush's State Conviction Record for cocaine base distribution in Sumter in 2011 is closely linked to the conspiracy charges against him. He argues that his incarceration from late 2011 to 2013 marked the end of his involvement in the conspiracy; however, the law presumes ongoing membership until there is clear evidence of withdrawal through affirmative actions. No evidence shows that Bush intended to withdraw, and his arrest and subsequent conviction do not indicate the conspiracy's termination. Additionally, it is not necessary for the State Conviction Record to involve the same individuals or drugs as those in the conspiracy; it suffices that it involved the same controlled substance, in the same location, and during the same timeframe. The trial court exercised proper discretion in admitting the State Conviction Record as intrinsic evidence, having conducted a thorough pretrial hearing and evaluated the admissibility based on legal principles and evidence.

Bush also claims a violation of due process due to the government's failure to correct a witness's purportedly false testimony. This issue was not preserved during trial, leading to a plain error review. For his claim to be valid, Bush must demonstrate that an error occurred, that it was evident, and that it affected his substantial rights. He contends that George McDowell, a co-conspirator, provided inconsistent testimony regarding the timing of their drug transactions. The court established that merely inconsistent testimony does not constitute grounds for a Napue claim, which requires proof of falsity and materiality. Bush's argument fails since he cannot substantiate that McDowell's testimony was false, and any confusion was clarified during cross-examination. As such, Bush does not meet the criteria for plain error review, leading to the rejection of his claims. The district court's judgment is affirmed.