US v. Antonio Craig, No. 08-4287 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4287 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO MAURICE CRAIG, a/k/a Cup, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00088-FDW-CH-1) Argued: October 28, 2009 Decided: December 30, 2009 Before MOTZ and GREGORY, Circuit Judges, and Benson E. LEGG, Chief United States District Judge for the District of Maryland, sitting by designation. Affirmed by unpublished per curiam opinion. ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Mark Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Antonio possession Maurice with Craig intent to appeals his distribute convictions cocaine base conspiracy to possess and distribute cocaine base. and for for He argues that the district court abused its discretion in refusing to issue a lesser included offense instruction for powder cocaine, that the evidence was insufficient to support his convictions, and that the district court abused its discretion in admitting hearsay testimony. For the reasons that follow, we affirm. I. A grand jury issued a three-count indictment against Craig. Count One charged conspiracy to possess and distribute at least fifty grams of cocaine base from March 2005 to March 31, 2006 in violation of 21 U.S.C. §§ 841(b)(1), 846. This crime related to a series of alleged hand-to-hand transactions committed during this time period. Count Two charged possession with intent to distribute at least five grams of cocaine base on March 12, 2005 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). On March 12, a police officer stopped Craig s vehicle and found a 7.54 gram crack rock in the front of the car as well as a smaller piece of crack in the back discovered seat. a During small a baggie pat-down of search, cocaine 3 (.35 the officer grams) in also Craig s pocket. Craig s brother, a fugitive at the time, was in the car as well. Count Three charged possession with intent to distribute at least five grams of cocaine base on March 31, 2005 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. This charge arose out of the search of a home rented and occupied by Craig, which yielded a 5.94 gram crack rock and drug dealing paraphernalia. Craig pleaded not guilty, and his case went to trial before a jury. Although possession of the powder Government cocaine, did not defense charge counsel Craig permitted with the introduction of the powder seized on March 12, purportedly to bolster a theory that Craig s use of powder cocaine constituted his only contact with drugs. At lesser the included cocaine. the close of evidence, offense Craig s instruction for attorney requested possession of a powder The district court refused to give the instruction on ground that the Government had not charged Craig with possession of the baggie of powder cocaine. While deliberating, the jury asked, among other things, to see testimony relating to the baggie of cocaine that the police seized from Craig on March 12. The court refused to furnish the jurors with a transcript of the testimony, but allowed them to view the evidence itself if they wished. 4 Shortly thereafter, the jury returned a verdict finding Craig guilty of the crimes charged in Counts One and Two, and acquitting him of the crime charged in Count Three. form asked the jury to find a quantity of The verdict cocaine base foreseeable to Craig under each count of the indictment. For each of the two convictions, the jury checked a box finding less than five grams of cocaine base foreseeable to Craig. The district court sentenced Craig to a prison term of 240 months. Craig timely appeals, raising three contentions, which we consider in turn. II. First, refusing to Craig argues issue a that lesser the included district offense court erred instruction in for possession of powder cocaine. 1 Federal Rule of Criminal Procedure 31(c) provides that a defendant may be found guilty of . . . an offense necessarily included in the offense charged. 1 Fed. R. Crim. P. 31(c). The district court also denied Craig s request for a lesser included offense instruction for simple possession of crack. Craig does not pursue that request on appeal. Rather, Craig now simply contends that a powder cocaine offense constitutes a subset of a crack cocaine offense, which entitles him to a lesser included offense instruction for Count Two (relating to March 12, the day that the police seized powder cocaine from his person), and for Count One (to the extent that the events of March 12 also support that conviction). 5 Concerned that prosecutors may be tempted to obtain unjustly harsh convictions by forcing a jury to decide between conviction of a very serious offense or acquittal, the Supreme Court has held that instruction defendants to give may the request jury a a more lesser included palatable offense alternative. Keeble v. United States, 412 U.S. 205, 212-13 (1973). A trial court must issue a requested lesser included offense instruction when the elements of the lesser offense are a subset of elements of the charged offense. States, 489 U.S. 705, 716 (1989). Schmuck v. United Craig argues that because the elements of possession of powder cocaine constitute a subset of the elements of possession of cocaine base, see United States v. Brisbane, 367 F.3d 910, 914 (D.C. Cir. 2004), 2 the district court should have issued a lesser included offense instruction in this case. Craig s argument fails because it misapprehends the purpose of the lesser included offense instruction. Such an instruction serves to prevent the prosecution from characterizing a single crime as overly severe -- not to force the prosecution to charge a defendant, who commits two crimes, with the less severe of the two. We rejected a very similar argument in United States v. 2 We need not, and do not, reach the question whether, as a legal matter, the elements of powder cocaine offenses constitute a subset of the elements of cocaine base offenses. 6 Echeverri-Jaramillo, 777 F.2d 933 (4th Cir. 1985). 3 There, the defendant -- charged with possession with intent to distribute over thirty-five pounds of cocaine, which he offloaded from a boat -- requested a lesser included offense instruction relating to a small amount of cocaine that he possessed in his pocket. Id. at 934-35. We upheld the district court s refusal to give such an instruction, reasoning: The indictment against Echeverri . . . recited overt acts relating only to the over thirty-five pounds of cocaine which were removed from the [boat]. . . . The smaller amount of cocaine allegedly possessed by Echeverri . . . was not part of the indictment and consequently had no role in the judge s jury instructions as to the nature of the crimes charged. Id. at 935. In this case, as in Echeverri-Jaramillo, the overt acts recited in the indictment do not include possession smaller amount of cocaine, here the baggie. 4 of the Craig s argument 3 Craig argues that Schmuck overruled Echeverri-Jaramillo. In fact, Schmuck expressly states that its holding in no way alters the rule relied on in Echeverri-Jaramillo and in the case at hand, that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater. 489 U.S. at 716 n.8. 4 Craig suggests that because the indictment did not specifically mention the crack rock in his car, it was ambiguous as to whether he was being tried for the crack, the powder, or both. However, the indictment specified that Craig possessed a mixture and substance containing a detectable amount of cocaine base, commonly known as crack cocaine. Furthermore, the indictment alleged that Craig possessed at least five grams of a mixture containing . . . crack cocaine. Although the (Continued) 7 is therefore not that the conduct charged in the indictment was less serious than the indictment alleges. Rather, he contends that this court should force the Government to prosecute him for entirely separate conduct. But the decision to prosecute is particularly ill-suited to judicial review. Wayte v. United States, 470 U.S. 598, 607 (1985). Here, we decline to second- guess not the prosecutor s decision to charge possession of the baggie of powder cocaine. Craig with We therefore hold that the district judge did not err by refusing to issue a lesser included offense instruction. III. Craig also challenges the sufficiency of the evidence to support his convictions. With regard to Count One, Craig argues that the evidence against him, indicating that he engaged in multiple hand-to-hand transactions each day, is inconsistent with the jury s attribution of less than five grams to him. As to Count Two, Craig argues that the 7.54 gram crack rock, the only cocaine base in his vehicle on March 12, is again inconsistent with the jury s attribution to him of less than five grams of cocaine base. In sum, Craig argues that because indictment could have been more specific and mentioned the 7.54 gram crack rock, it was certainly not vague enough to be ambiguous on this point. 8 the jury found him responsible for such a small amount of cocaine base, it implicitly rejected all of the evidence against him, which tended to show that he was responsible for a much larger amount of cocaine base. A defendant challenging bears a heavy burden. 1064, 1067 (4th Cir. 1997). the evidence, viewed in the sufficiency of the evidence United States v. Beidler, 110 F.3d We must uphold a jury s verdict if the light most favorable to the Government, would permit a reasonable finder of fact to find the defendant guilty beyond a reasonable doubt. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007); United States v. Burgos, 94 F.3d 849, 862 (4th cir. 1996) (en banc). We reverse only where where the prosecution s failure is clear. Burks v. United States, 437 U.S. 1, 17 (1978); Foster, 507 F.3d at 24445. To prove possession with intent to distribute cocaine base, the Government must show (1) possession of the cocaine base; (2) knowledge of this possession; and (3) intent to distribute. Burgos, 94 F.3d at 873. Possession may be constructive, and it may be sole or joint. marks and citation omitted). The actual See or Id. (quotation elements of a § 846 conspiracy are (1) an agreement between two or more persons to violate federal law relating to controlled substances; (2) knowledge of the essential objectives of the conspiracy; (3) 9 knowing and voluntary involvement interdependence among the conspirators. therein; and (4) United States v. Hall, 551 F.3d 257, 268 n.13 (4th Cir. 2009). Craig relies on dicta from Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 400 n.11 (1972), to argue that if the jury s specific verdict that Craig was responsible for less than five grams of cocaine base is inconsistent with its general verdict, then his conviction cannot stand. Whatever force the Pipefitters dicta may have once had, it withered when the Supreme Court, in United States v. Powell, 469 U.S. 57 (1984), subsequently reaffirmed the decades-old principle that controls here. 5 In Powell the Court explained that where truly inconsistent verdicts have been reached, [t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real 5 Craig attempts to distinguish Powell on the ground that Powell addressed only cases in which the verdict on one count is inconsistent with the verdict on another, while in this case, the inconsistent verdicts are the specific and general verdict This is a on the same count. See Powell, 469 U.S. at 59. distinction without a difference. The rationale of Powell, that an appellate court should not infer innocence when a jury, whether through mistake, compromise, or lenity, reaches inconsistent verdicts, applies with full force here. Id. at 65. Moreover, the Powell Court expressly considered and rejected the argument that inconsistent verdicts justify appellate intervention even where the jury acquits a defendant of a predicate felony, but convicts on the compound felony, a circumstance extremely close to the facts of this case. Id. at 67. 10 conclusions, but that does not show that they were not convinced of the defendant's original) (quoting guilt. Dunn v. Id. United at 64-65 States, (alteration 284 U.S. in 390, 393 we detect no verdict and its (1932)). Furthermore, inconsistency between general verdict. that the after jury examining the the jury s facts, specific While Craig may be able to stake out a claim intended to show him mercy, or to apportion responsibility for his crimes among multiple perpetrators, he cannot sustain his heavy burden to show that no rational factfinder could find him guilty of the offenses charged in the indictment and also find him responsible for less than five grams of cocaine base. With regard to Count One, multiple witnesses testified that Craig dealt crack cocaine, and the jury could have partially credited their statements to arrive at the conclusion that Craig dealt a small determined arrested conspiracy amount of crack. that the events of Craig and his to possess The March brother and jury 12, could 2005, together, distribute crack also when amounted have police to cocaine a that satisfied the requirements of Count One of the indictment. As to Count Two, the jury could have apportioned the 7.54 grams of crack in various amounts to Craig and his brother. It could also have found that Craig possessed the smaller piece of 11 crack located under the rear seat of his car. Alternately, the jury could have decided to show mercy and find Craig guilty of possessing less crack than the evidence suggested he actually possessed. Ultimately, evidence. we do not know how the jury considered the All we know for certain is that after considering the evidence, the jury found Craig guilty of two of the charged offenses, and the record contains sufficient evidence to support that verdict. IV. Finally, Craig argues that the district court erred by overruling his objection to the hearsay testimony of FBI agent David Drew. Agent Drew testified that he used an informant, Sean Wright, to purchase drugs and report the transactions to Drew. On cross-examination, defense counsel asked Drew whether Wright had Craig. ever Drew told Drew responded that that he he had had purchased not. On drugs redirect, Government asked Drew to relate Wright s observations. from the Drew responded that Wright had told him that he observed Craig make a hand-to-hand Defense narcotic counsel did transaction not object to with the another hearsay individual. at that time because the Government had subpoenaed Wright to appear later in the trial. After Wright failed to appear, defense counsel did 12 promptly object to the hearsay testimony. The district court overruled the objection on the grounds that it was not timely, and that Craig s attorney had opened the door to the hearsay by soliciting hearsay testimony from Agent Drew on cross examination. For purposes of our review, we will assume defense counsel lodged a timely objection to the hearsay. The parties agree that we review rejection of even a timely objection to hearsay for abuse of discretion. A district court is given broad discretion in its evidentiary rulings, which are entitled to substantial deference. 1170 (4th Cir. 1995). United States v. Murray, 65 F.3d 1161, For a district court to abuse discretion, it must act arbitrarily or irrationally. its United States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997). Hearsay testimony is generally inadmissible. Evid. 802. See Fed. R. However, a court may admit such testimony if the opposing party opened the door by soliciting similar testimony herself. See United States v. Williams, 106 F.3d 1173, 1177 (4th Cir. 1997). counsel knowledge asked of a any In Williams, on cross examination, defense government dealings agent between whether the he had defendant informant; the agent responded that he did not. personal and an On re-direct examination, the prosecutor asked, [a]nd did [the informant] say whether or not he had ever obtained methamphetamine from the 13 defendant? defense overruled The objected the agent to answered the objection yes. statement because the as Id. at hearsay, defense had 1177. the The court opened the door, and we affirmed. Williams controls here. In Williams, the defense did not directly solicit hearsay testimony. Rather, it merely asked whether the agent had personal knowledge of illicit dealings. In this case, by contrast, Craig s attorney explicitly solicited hearsay testimony. If the door was open in Williams, then it is wide and agape here, we cannot deem the district court s decision an abuse of discretion. 6 V. In sum, we hold that Craig had no entitlement to a lesser included offense instruction, that the jury possessed sufficient evidence to convict him, and that the district court did not 6 Craig would have us rely, instead, on Achiekwelu, in which we affirmed a district court s decision to permit the Government to offer a tardy objection to an unauthenticated exhibit. First, the district Achiekwelu is inapposite for two reasons. court sustained the objection in Achiekwelu, but overruled it here. Thus, Achiekwelu does not stand for the proposition that tardy objections will always suffice. Rather, it suggests that even though tardy objections are disfavored, an appellate court will defer to the trial court s decision to permit such an objection. Second, Achiekwelu dealt only with timeliness of an objection. It said nothing about whether the defense opened the door to hearsay, the key issue here. 14 abuse its testimony. discretion in admitting Agent Drew s hearsay The judgment of the district court is therefore AFFIRMED. 15

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