US v. Quenell Walters, No. 07-4573 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4573 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. QUENELL WALTERS, Defendant - Appellant. No. 07-4600 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. P. W. FERGUSON, a/k/a P. W., a/k/a Patrick William Ferguson, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief District Judge. (3:06-cr-00061-JFA-20; 3:06-cr-00061-JFA-6) Argued: September 25, 2009 Decided: October 29, 2009 Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: David Bruce Betts, Columbia, South Carolina; James Arthur Brown, LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina, for Appellants. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: James H. Babb, HOWLE & BABB, LLP, Sumter, South Carolina, for Appellant Quenell Walters. W. Walter Wilkins, United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Quenell convictions for Walters (1) and P.W. conspiring to Ferguson possess appeal with their intent to distribute and distribute cocaine base and (2) possessing with intent to distribute and distributing cocaine base. also appeals his mandatory life sentence. Ferguson Finding no error, we affirm. I. From 2000 until 2005 the Columbia, South Carolina, Police Department and the FBI ran a joint investigation of drug activities in the McDuffie Street neighborhood of Columbia. Drug dealing in the neighborhood was tightly controlled. Only members of the Bloods street gang or persons who lived or grew up in the neighborhood could sell drugs there. Any outsider who attempted to sell drugs in the area was beaten. Walters was a member of the Bloods gang. Over a two- month period Nickolas Guild sold at least one hundred grams of crack to Walters on a street adjoining McDuffie. this crack. Street. Walters resold Ferguson lived in Loretta Brown s house on McDuffie Brown s house was used as a central gathering spot and safe haven for drug traffickers. Jerblonski Addison sold crack to Ferguson on a daily basis over a couple of years; these sales totaled at least fifty grams. Guild sold at least 50 grams of crack to Ferguson, and Guild saw Ferguson sell crack on McDuffie 3 Street on a daily basis. Debra Brown, an informant, videotaped both Walters and Ferguson participating in a crack transaction on McDuffie Street. Walters and Ferguson were charged in two counts of a twenty-eight count indictment returned against twenty-one individuals by a federal grand jury on January 17, 2006. Count 1 charged both defendants with conspiring to possess with intent to distribute and distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. Counts respectively, distributing 16 with a and 22 charged possessing quantity Ferguson intent to cocaine of with base, and and Walters, distribute and in and aiding abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. The indictment other pled nineteen guilty. co-conspirators Walters and charged Ferguson in were the tried together, and on February 15, 2007, the jury found them guilty of the counts charged. a mandatory minimum The district court sentenced Walters to prison term of 240 months and sentenced Ferguson to a mandatory term of life in prison. Walters and Ferguson appeal Ferguson appeals his life sentence. 4 their convictions, and II. A. Walters membership in Amendment argues the right that Bloods of admitting street assembly. gang Both evidence violated defendants of his his First argue that allowing testimony about the Bloods street gang was irrelevant and resulted in unfair prejudice. this evidence for abuse of We review the admission of discretion. United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006). The district court did not abuse its discretion in allowing evidence of Walters gang association. The First Amendment does not bar evidence of a person s associations when it provides a link to criminal activity. Assessing the probative value of common membership in any particular group, and weighing any factors counseling against admissibility is a matter first for the district court s sound judgment under Rules 401 and 403. The evidence United States v. Abel, 469 U.S. 45, 54 (1984). of Walters membership in the Bloods gang was relevant to the conspiracy charge because the gang controlled the drug activity in the McDuffie Street area. Those who were not Bloods were not allowed to sell drugs in the area unless they grew up there or lived there. The district court did not abuse its discretion in deciding that the probative value of evidence about Walters membership in the gang and the gang s 5 power of exclusion was not danger of unfair prejudice. substantially outweighed by the See Fed. R. Evid. 403. B. The defendants next challenge the district court s refusal to allow them to introduce evidence that no cooperating government witness took or was required to take a polygraph. According to the constitutional defendants, rights to this ruling confront violated adverse their witnesses, to effective assistance of counsel, and to due process of law. In this circuit the results of a polygraph are not admissible to impeach the credibility of a witness. United States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997). If the results of a polygraph examination cannot be used to impeach a witness, it follows that the absence of a polygraph cannot be used for impeachment either. It was not an abuse of discretion for the district court to disallow evidence that no cooperating witness took a polygraph test. C. The defendants requested a verdict form (or jury interrogatories) that would have required the jury to make a specific drug quantity determination conspiracy and as to each defendant. these requests. overall Instead, conspiracy and the 6 to the overall The district court denied court each as - with defendant respect -- to the submitted interrogatories that allowed the jury to find drug quantity ranges corresponding to the penalties prescribed in 21 U.S.C. § 841(b). The defendants argue that the interrogatories violated their Sixth Amendment right to a jury trial. Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendants argue that the jury should have quantities been rather interrogatories. permitted than the to determine ranges F.3d 878, 888 (4th interrogatories has no merit. jury to find requiring the involved. specified in drug the We review allegations of a constitutionally defective jury instruction de novo. 250 specific The Cir. drug United States v. Stitt, 2001). This There the is exact quantity attack no on the authority for quantifies ranges of listed drugs in the interrogatories properly reflected the same ranges listed in 21 U.S.C. § 841(b). D. Next, jury the instruction on defendants the challenge conspiracy the district charge. court s Because this argument was not raised at trial, our review is for plain error. United States v. Reid, 523 F.3d 310, 315 (4th Cir. 2008). The defendants contest the district court s instruction that if the jury found both defendants guilty of the conspiracy charge, then the quantity 7 of cocaine it found attributable to the conspiracy for each defendant had to match up, because we are talking about the same conspiracy. 746. J.A. First, the defendants argue that this served to direct a verdict on whether the evidence proved a single conspiracy or multiple conspiracies. This argument fails because there was no evidence that either defendant s actions related to a conspiracy separate from the McDuffie Street conspiracy. A multiple conspiracy instruction is not required if there is no proof of See United States v. Nunez, 432 F.3d multiple conspiracies. 573, 578 (4th Cir. 2005). instruction prevented determination of Second, the defendants argue that the the the jury weight of from making drugs 415 district court jury. F.3d 304 complied (4th Cir. with to each See United States v. 2005). circuit independent attributable defendant as a member of the conspiracy. Collins, an We law disagree. The in instructing the The court instructed the jury that it needed to determine (1) whether the government has proved beyond a reasonable doubt that the defendant participated in a conspiracy, (2) the amount of cocaine base that the government has proved beyond a reasonable doubt is attributable to the entire conspiracy, and (3) the beyond a amount of reasonable cocaine doubt base is that the attributable government to each proved defendant found to be a member of the conspiracy himself as an individual 8 member of the conspiracy. J.A. 731-32. The conspiracy instruction, taken as a whole, was not erroneous. E. Walters claims a Brady and Giglio violation because the district court refused to require the government to disclose FBI agent Walters. Rodney Crawford s notes of his interrogation of See Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972). The 302 report prepared by Agent Crawford reflected that Walters admitted his membership in the Bloods gang, and Agent Crawford testified to that effect. Walters -- through an oral statement made by his counsel -denied that he had made such an admission to Agent Crawford. Walters did district not court offer to Crawford s notes. a sworn conduct denial, any nor in-camera did he review ask of the Agent In any case, Walters argues that the notes should have been made available for impeachment purposes. To succeed on a Brady claim, the defendant must show that prejudice resulted from the suppression. 436 F.3d 412, 420 (4th Cir. 2006). Vinson v. True, Here, even if it is assumed that the interview notes should have been produced, Walters has not shown Nickolas Guild testified that Walters was a member of the Bloods gang. Thus, Agent prejudice. Crawford s membership in the Both testimony Bloods Danny that gang was 9 Sims Walters and admitted cumulative to evidence. his The district court s refusal to require the government to turn over Agent Crawford s notes of his interrogation of Walters therefore did not result in any prejudicial error under Brady and Giglio. F. Finally, Ferguson argues that his trial counsel was ineffective for failing to contest the mandatory life sentence imposed by sentence the district Ferguson § 841(b)(1)(A) to after a court. life having The term two court if or he more was required violated prior 21 to U.S.C. felony drug convictions that had become final. An ineffective assistance of counsel claim is not cognizable on direct appeal unless it conclusively appears from the record that representation. defense counsel did not provide effective United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Ferguson argues that his trial counsel was ineffective for: (1) failing to object to the life sentence enhancement or to request an enhancement hearing; (2) failing to challenge the district court s consideration of an uncounseled prior conviction; (3) failing to argue that Ferguson did not enter into the convictions § 841 became conspiracy final; and after his prior (4) failing to felony request a drug jury determination of the dates of Ferguson s participation in the § 841 conspiracy. 10 Ferguson admits that his 1998 felony drug conviction was properly considered as a predicate offense. He claims, however, that his 1999 drug conviction was invalid because he was not represented by counsel and that his 2002 and 2004 drug convictions occurred after he was no longer participating in the § 841 conspiracy. Thus, he claims that his trial counsel was ineffective for not challenging the use of these convictions for enhancement purposes. Two prior felony drug convictions meant a mandatory life sentence for Ferguson. Because he admits to one prior conviction, all of his other convictions would have to have been invalidated as sentence enhancers for his counsel to have succeeded Therefore, if in just challenging one of the the mandatory other life convictions sentence. was valid, Ferguson s counsel would not have been ineffective for failing to challenge the enhancement. With respect to the 1999 conviction, Ferguson points out that his presentence report (PSR) does not reflect that he had counsel. The PSR simply quotes a South Carolina statute stating that indigent defendants are entitled to counsel. Thus, while we do not know whether Ferguson actually had counsel, we have no basis to determine that this conviction was definitively invalid for enhancement purposes due to lack of counsel. As a result, the record does not conclusively show that Ferguson s counsel in this case rendered ineffective assistance in failing 11 to challenge the use of his 1999 conviction. 1998 conviction and the absence of a In light of the showing that the 1999 conviction cannot be counted to enhance Ferguson s sentence, we cannot say that it conclusively appears from the record that defense counsel representation did in not provide failing to challenge convictions for the § 841 enhancement. Ferguson s ineffective assistance [Ferguson] the effective predicate Benton, 523 F.3d at 435. claim must therefore be rejected in this direct appeal. III. For the foregoing reasons, Walters and Ferguson s convictions and Ferguson s sentence are AFFIRMED. 12
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