United States v. Keisha Carter, United States of America v. Jerry Lee McRae United States of America v. Tivarus Montiento McRae A/k/a/ Tat-Killer, United States of America v. Willie Jerome McRae United States of America v. Gilbert Devon Melvin, A/K/A G-Boy
Docket: 98-4912
Court: Court of Appeals for the Fourth Circuit; July 30, 2002; Federal Appellate Court
A Grand Jury indictment was issued on March 3, 1998, against 20 defendants for a drug trafficking conspiracy involving controlled substances, including heroin and crack cocaine, from January 1, 1987, to March 5, 1998, violating 18 U.S.C. § 846, and for firearms violations during this conspiracy, violating 18 U.S.C. § 924(c)(1). The five appellants—Keisha Carter, Jerry Lee McRae, Tivarus Montiento McRae, Willie Jerome McRae, and Gilbert Devon Melvin—were tried together beginning September 29, 1998. The jury returned various convictions and acquittals for the appellants on October 6-8, 1998.
Carter was convicted on two counts, with a mistrial on the conspiracy count. Jerry McRae and Willie McRae received life sentences after being convicted on the conspiracy count, while Tivarus McRae received a 292-month sentence on that count and additional time on another count. Gilbert Melvin was also sentenced to life for conspiracy, along with additional prison terms for other counts. Following their sentencing, all five defendants appealed their convictions and sentences, which were ultimately affirmed by the court.
Defendants Jerry McRae and Gilbert Melvin appeal the denial of their motion to suppress drug evidence obtained from McRae's car during a September 1997 traffic stop by Officer Lane Mooney of the Texas Narcotics Task Force. McRae and Melvin were arrested after cocaine and marijuana were found in the vehicle. The district court denied McRae's suppression motion, which Melvin adopted. The appeals court reviews such denials de novo for legal conclusions while assessing factual determinations for clear error.
The court found that Melvin lacked standing to contest the search, as he had no legitimate expectation of privacy in McRae's vehicle, evidenced by his denial of knowing whose car he was in and his disavowal of interest in its contents. Consequently, the district court’s decision on Melvin's motion was upheld.
Regarding McRae's motion, Officer Mooney, upon stopping the vehicle for speeding, detected the smell of burnt marijuana. Although McRae denied permission for a search, Officer Mooney, citing exigent circumstances due to the car's mobility, utilized a K-9 unit, which alerted near the driver's side door. A subsequent search of the vehicle's passenger compartment revealed marijuana, and a further search of the trunk, including a closed suitcase, uncovered a kilogram of cocaine.
The court reiterated that warrantless searches are generally unreasonable under the Fourth Amendment, with exceptions such as exigent circumstances and probable cause in the context of automobiles. The officer's probable cause justified the warrantless search of both the vehicle and the suitcase within it, as the scope of the search is limited to areas where there is probable cause to believe contraband may be found.
Officer Mooney had probable cause to search the passenger compartment of McRae's vehicle due to the smell of burning marijuana. The critical issue is whether he had probable cause to search the locked trunk and the suitcase within it, where cocaine was discovered. The government claims that a K-9 drug dog's alert on the driver's side provided sufficient probable cause for a full vehicle search, including the trunk. However, it is emphasized that probable cause must be specific to compartments within the vehicle. The district court found the dog's alert was close enough to the trunk to warrant probable cause, a conclusion subject to review only for clear error. The court deemed it not clearly erroneous that the dog's alert was linked to the trunk contents.
In a separate case, defendant Jerry McRae contested the denial of his motion to suppress evidence obtained during a warrantless search by Fayetteville police. Following a domestic violence report, McRae was placed in a police car while officers spoke to his wife, Ms. McRae, who provided conflicting accounts regarding consent for the vehicle search. Ms. McRae claimed she did not consent and that the officer took the car keys without permission. Conversely, the officer asserted that Ms. McRae agreed to the search after he explained the purpose. The district court found the officer's testimony more credible, concluding that Ms. McRae did consent, a decision not deemed clearly erroneous despite the conflicting narratives. A separate concern arose regarding whether her consent was given voluntarily, as the defense argued that police coercion induced fear in Ms. McRae, impacting her consent's legitimacy.
The voluntariness of a search is evaluated de novo, focusing on the totality of the circumstances as established in Schneckloth v. Bustamonte. Although the police comments appeared manipulative, the context was not coercive since Ms. McRae consented to the search in her home, and there was no evidence her will was overborne. Consequently, the district court's denial of Jerry McRae's motion to suppress evidence from his car was affirmed.
While in county jail, Michael McEachern encountered Jerry McRae and later testified as a government witness, claiming McRae made violent statements. McRae contested the admissibility of this testimony, arguing it violated Fed. R. Crim. P. 16(a)(1)(A) due to lack of disclosure. The district court admitted the testimony, ruling that McEachern's statements were not made in response to government interrogation, thus there was no abuse of discretion.
Keisha Carter, sentenced to consecutive terms for two violations of 18 U.S.C. 924(c)(1) related to using a firearm in drug trafficking, filed a motion for acquittal or a new trial. She contended that multiple sentences for two section 924(c) offenses from a single drug trafficking offense were impermissible. This legal question was reviewed de novo; however, existing Fourth Circuit precedent (United States v. Camps) precluded her argument.
Carter also argued that her conviction for the firearm offense (Count Five) was invalid since the jury did not convict her for the underlying drug trafficking offense (Count One). The district court denied her motion for judgment of acquittal, maintaining the conviction for Count Five despite the jury's deadlock on Count One.
Carter argues that her conviction under 18 U.S.C. § 924(c) should be contingent on a prior conviction for the predicate offense of conspiracy, citing United States v. Wilson, where the court indicated that the 924(c) charge would fail if the conspiracy charge did. However, the government counters by referencing multiple federal circuits that have upheld 924(c) convictions without requiring a conviction on the predicate drug trafficking offense, emphasizing that only the fact of the offense, not a conviction, is necessary. The Fifth Circuit has even allowed for 924(c) convictions despite jury acquittals on the predicate offense. The court adopts the approach of the other circuits, asserting that a 924(c) conviction can stand if a reasonable jury could find the defendant guilty of the predicate offense, which is satisfied in Carter's case since the jury did not reach a definitive verdict.
In a separate matter, Jerry McRae contests the district court's determination that he was responsible for 500 to 1500 grams of crack cocaine, leading to a sentencing guideline of 360 months to life. The government must prove drug quantity by a preponderance of evidence, and the defendant has the burden to demonstrate inaccuracies in the Presentence Report. The court’s findings on drug quantity are factual and reviewed for clear error. McRae argues that discrepancies in witness testimony undermine the drug quantity attribution. However, the discrepancies raise credibility issues that the district court resolved, and the court's findings were deemed not clearly erroneous. Therefore, the district court's determinations are affirmed.
Gilbert Melvin contends that he should not face accountability for drug amounts associated with offenses he was acquitted of. The Supreme Court allows sentencing courts to consider acquitted conduct when determining drug amounts due to a lower standard of proof at sentencing (preponderance of the evidence). The key issue is whether the district court's decision to consider Melvin's acquitted conduct was clearly erroneous, given that the court found the government had proven the drug amounts attributable to him beyond a reasonable doubt, based on a comprehensive review of trial records and testimony.
The district court determined that Jerry and Willie McRae were leaders of a criminal enterprise with five or more participants, resulting in a four-level increase in their sentencing guidelines. Jerry McRae argued he was merely a street dealer, but substantial evidence indicated his significant involvement in drug distribution, as corroborated by testimonies from multiple street dealers. The court similarly found Willie McRae's role to be even more prominent, leading to the conclusion that the enhancement was justified and not clearly erroneous.
Additionally, evidence presented during Melvin's sentencing indicated that he shot and killed Gaylord Johnson in a drug-related incident. The court factored this killing into Melvin's base offense level, determining it to be 43 based on the relevant sentencing guidelines, despite Melvin not being indicted for murder. Melvin argued that this was improper since he had not been convicted of murder and claimed insufficient evidence existed to establish his involvement in the killing.
In United States v. Crump, the Fourth Circuit established that a district court's findings of fact at sentencing can only be overturned on appeal if they are clearly erroneous. The court determined that there was sufficient evidence to conclude that Melvin killed Johnson, as multiple witnesses testified against him. Consequently, the factual finding was upheld, and the murder classification justified a base offense level of 43 under U.S.S.G. 2D1.1(d)(1) and 2A1.1. Melvin contended that he was effectively tried for first-degree murder without a jury's verdict beyond a reasonable doubt, but the court reaffirmed that such "real offense" sentencing is constitutional.
Melvin was designated an "armed career criminal" with a Criminal History Category Score of VI, as he met the criteria outlined in U.S.S.G. 4B1.1. Despite his claim that his 1993 drug trafficking conviction was not a "prior" felony due to the ongoing nature of the conspiracy that began in 1987, the court found this argument unpersuasive, noting that conspiracy is a continuous offense. This position is consistent with decisions from other federal circuits.
Additionally, Melvin argued against treating his prior assault convictions as "violent felonies" due to changes in North Carolina law post-assault. However, precedent from United States v. Johnson clarified that the classification of prior convictions is determined based on the law at the time of conviction, not sentencing. Thus, the court affirmed Melvin's status as an armed career criminal.
Finally, the district court's sentencing occurred before the Supreme Court's decision in Apprendi v. New Jersey and subsequent Fourth Circuit cases applying its principles. While the court upheld the sentencing processes for Melvin and others, it acknowledged the need to consider the implications of Apprendi on the sentences actually imposed.
The validity of the defendants' sentences under federal drug statutes (21 U.S.C. §§ 841, 846) is examined in light of the Supreme Court's ruling in *Apprendi v. New Jersey*, which mandates that any fact increasing a criminal penalty beyond the statutory maximum, except for prior convictions, must be proven to a jury beyond a reasonable doubt. All defendants, except Keisha Carter, contend their sentences are invalid because they exceed this maximum, which is 20 years for unspecified quantities of certain drugs under 21 U.S.C. § 841(b)(1)(C). A sentence over this limit requires a jury finding of a specific quantity, such as 1 kilogram of heroin under § 841(b)(1)(A)(i). The court notes that failing to instruct the jury on an essential element does not automatically constitute reversible error; it must be assessed for harmlessness or plain error. Since the defendants did not raise this issue previously, the review will focus on plain error, which requires identifying a clear error that affects substantial rights and undermines the integrity of judicial proceedings.
In *United States v. Cotton*, 261 F.3d 397 (4th Cir. 2001), the court affirmed that the omission of drug quantity in an indictment and jury submission significantly undermines the fairness and integrity of judicial proceedings. However, the Supreme Court reversed this finding in *United States v. Cotton*, 525 U.S. 622 (2002), ruling that even if defendants' rights were impacted, such errors did not compromise judicial fairness when overwhelming evidence of guilt existed. The Court emphasized that allowing lesser sentences due to unobjected errors would pose a greater threat to judicial integrity than upholding a conviction supported by uncontroverted evidence in a serious drug conspiracy.
The court then analyzed the sentences of four defendants, affirming their life sentences. Jerry McRae was sentenced to life imprisonment for his role in a drug conspiracy violating 21 U.S.C. § 846. Although the indictment failed to specify drug quantity, and the jury instructions did not require such a finding, overwhelming evidence showed McRae’s involvement with significantly more than 50 grams of crack cocaine, heroin, and marijuana. Even accepting McRae's arguments against certain witness testimony, he conceded accountability for at least 56.70 grams of cocaine, which met the threshold for sentencing despite the plain error.
Willie McRae, similarly sentenced to life under Count One of the indictment, faced the same legal issues regarding the failure to allege drug quantity. The court found that while the sentencing error was plain, the overwhelming evidence against Willie McRae negated the need to recognize the error, as it did not affect the outcome under the fourth prong of the Olano analysis.
Willie McRae's substantial rights were deemed unaffected by any errors, as overwhelming evidence established his accountability for over 50 grams of cocaine base. He contested the reliability of the evidence regarding drug quantity, arguing that some sources cited by the court were involved in transactions with him during his incarceration and that information from non-testifying sources was unreliable. However, even if such evidence were disregarded, ample evidence remained supporting his responsibility for the drug quantity.
Anthony McNeil testified to a drug purchasing arrangement involving Willie, Jerry, and another brother, where they pooled resources to buy cocaine in New Jersey. This resulted in substantial quantities of cocaine, far exceeding the 50-gram threshold. Consequently, the Apprendi error in Willie McRae's sentencing should not be recognized due to this overwhelming evidence.
Tivarus McRae was sentenced to a total of 353 months for drug-related offenses, despite an error in exceeding the statutory maximum for one count. However, similar to Willie McRae, the court noted that the evidence of Tivarus's accountability for over 50 grams of cocaine base justified a potential life sentence for one count. Testimonies regarding his multiple drug purchases further supported this conclusion, illustrating a pattern of significant involvement in drug transactions.
Edward Ward testified that Tivarus McRae regularly received crack cocaine in three-ounce and four-ounce quantities from Jerry McRae, and that he himself purchased four ounces from Tivarus every other day during February and March 1997. Ward also reported seeing Tivarus with 18 ounces of crack cocaine. Anthony McNeil corroborated this by stating that Tivarus purchased 14 to 28 ounces from him twice weekly. The evidence overwhelmingly supports that Tivarus is accountable for over 50 grams of cocaine base, leading to the decision to affirm his sentence despite any alleged errors.
Gilbert Devon Melvin was convicted of violating 21 U.S.C. § 846 and two counts under 18 U.S.C. § 924(c)(1), receiving a life sentence for the drug count and additional consecutive sentences totaling 25 years for the firearm counts. The court recognized an error in sentencing Melvin beyond the statutory maximum but, due to overwhelming evidence linking him to over 50 grams of cocaine base, chose to uphold the sentence. Evidence indicated Melvin was a drug dealer who purchased and sold crack cocaine in multiple transactions, with just a few half-ounce transactions sufficient to meet the 50-gram threshold.
The panel reviewed the defendants' briefs and found other issues raised to be without merit, leading to the affirmation of all convictions and sentences. Judge Murnaghan participated in oral arguments but passed away before the decision was filed, which was subsequently issued by a quorum. Notably, while some defendants contested the reliability of drug quantity evidence, they failed to preserve their objections effectively. The court clarified that evidence from acquitted conduct can still be considered for sentencing if proven by a preponderance of the evidence.
