Unpublished Dispositionunited States of America, Appellee, v. Shecham Lafayette, Appellant.andunited States of America, Appellee, v. Raymond O. Lewis, Appellant.andunited States of America, Appellee, v. Derrick Townsend, Appellant, 896 F.2d 599 (D.C. Cir. 1990)

These consolidated cases were considered on the record on appeal from the United States District Court for the District of Columbia and on the briefs filed by the parties. The issues have been accorded full consideration by the court and occasion no need for a published opinion. See D.C. Cir. Rule 14(c). For the reasons stated in the accompanying memorandum, it is

ORDERED and ADJUDGED that appellants' convictions be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.

MEMORANDUM

Three codefendants, Lafayette, Lewis, and Townsend, appeal their convictions for conspiracy to distribute and possess with intent to distribute certain drugs, conspiracy to use and use of firearms in relation to drug trafficking, and possession with intent to distribute certain drugs. Lafayette and Lewis contest the denial of their motions to suppress Lafayette's statements to police officers in New York concerning his drug-related activities in Washington, D.C. They also charge that the trial court erred in admitting "other crimes" evidence. Lewis and Townsend challenge the admissibility of Lafayette's statements to the New York police. Lafayette and Townsend claim that their rights to a public trial and to call witnesses were infringed. Finally, all appellants challenge the denial of their individual motions to sever and assert that they were improperly sentenced under the Federal Sentencing Guidelines.

A. Denial of Motion to Suppress Lafayette's Statements

The district court found that the initial arrest of Lafayette by the New York police officers was legal as it was supported by probable cause; that the interview at the station house was noncustodial from the point after which the shooting victim said that Lafayette was not his assailant and the handcuffs were removed; that in any event Lafayette had knowingly and intelligently waived his Miranda rights at the time of arrest; and finally that Lafayette's statements at the station house were completely voluntary.

Appellants Lafayette and Lewis renew their pre-trial arguments here: that the arrest lacked probable cause and that the interview was a "custodial interrogation" in violation of Miranda. Based upon the credited testimony, these arguments lack merit. First, there is ample evidence in the record to support the district court's conclusion that the New York police had probable cause to arrest Lafayette. Second, we know of no authority to suggest that once an individual knowingly waives his Miranda rights he must be "Mirandized" once again a few hours later, even where he has been informed that he is no longer under arrest. Finally, although Lafayette does not raise this issue directly on appeal, the record demonstrates that his statements were made voluntarily. The station interview was about the "Richards Brothers" homicide which Lafayette had witnessed, and he appeared to be interested in learning what the police knew about the incident. During the interview, he appeared relaxed and even laughed and bragged about his exploits in Washington, D.C.

Appellants Lewis and Townsend contend that the admission of appellant Lafayette's statement to the New York police regarding his involvement in the "drug business in Washington, D.C." and the prosecutor's use of this statement in his rebuttal argument violated their sixth amendment right of confrontation as construed in Bruton v. United States, 391 U.S. 123 (1968). In Bruton the Court held that a defendant is deprived of his right of confrontation when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. 391 U.S. at 135-36. In this case, however, there was never a Bruton problem because Lafayette never mentioned Lewis or Townsend in his statements or referred to the existence of unnamed parties. Instead he specifically named his girlfriend, Rosemarie Coleman, Roy Davis, another girlfriend named Vivian, and Earl Wilson as persons with whom he was engaged in the drug business in Washington, D.C.

Appellants assail the government's use of Lafayette's statements to the New York police in its rebuttal closing argument. The context of the prosecutor's rebuttal statement shows that he mentioned the correlation between Lafayette's testimony and the contact of Earl Wilson with appellant Townsend in an effort to rebut Lafayette's contention that his statements applied only to another past conspiracy. The prosecutor specifically noted that Lafayette did not implicate Lewis and Townsend in his statements to the New York police. In these circumstances, at worst the prosecutor used Lafayette's confession in a way that was incriminating by connection with other evidence introduced at trial. The Supreme Court, however, has declined to extend Bruton to cases of "evidentiary linkage" or "contextual implication." Richardson v. Marsh, 481 U.S. 200 (1987). Although the prosecutor made some slight factual errors in closing summation, none of these are of any moment as there was abundant other evidence on which to base a conviction of all appellants.

Equally unavailing is appellant Lewis' contention that admission of Lafayette's statements deprived him of his defense that no conspiracy ever existed. This argument amounts to a claim that the police cannot introduce probative evidence of a conspiracy if the evidence comes from a co-conspirator's loose lips--an argument we cannot accept. In any event, there was abundant other evidence that such a conspiracy existed.

Appellants Lewis, Townsend, and Lafayette all argue that the district court abused its discretion by failing to grant their motions to sever. We need not rehearse the clear discretion warranted to trial judges on the severance question. Each appellant attempts to escape this constriction by arguing a disparity of the evidence against his codefendants. None of their contentions regarding disparity have any merit. Despite Lafayette's statements in New York, and the arrest of Townsend in New Jersey, there was no "dramatic" disparity of evidence in this case. Appellants each were charged with the same offenses, and the voluminous testimony regarding the drug outlets at Robinson Place and Forrester Street implicated each appellant in making drug deliveries, collecting proceeds, carrying firearms, and serving as an authority figure among the "employees." We conclude that the district court did not abuse its discretion in denying severance motions.

Appellants Lewis and Lafayette assert that evidence seized from Lewis by the New Jersey police on March 27, 1987 must be considered "other crimes" evidence because that seizure preceded the date the indictment gives as the approximate beginning of the conspiracy at issue--June 1, 1987. The trial court held that the evidence was admissible as further evidence of the conspiracy. The court reasoned that the government should not be held to the precise date in the indictment given "the nature of conspiracies," where the government ordinarily cannot know the exact date at the time of indictment. This ruling is consistent with federal court precedents and the law of this circuit. The March 27 date precedes by only about two months the starting date identified in the indictment and was within the statute of limitations for the offenses at issue.

Appellants claim that their sixth amendment rights to a public trial and to call witnesses without intimidation were violated when an INS agent asked some trial spectators for identification during a luncheon recess, resulting in a shouting match just outside the courtroom. When the trial resumed, counsel for appellant Lewis called the episode to the attention of the court. The prosecutor represented that he had been aware that an INS agent might attend the trial and that he had acquiesced in this, but that he did not know that anyone would be approached so near the courtroom. At the request of defense counsel, the judge questioned jurors, learned that some of them had heard the brief disturbance, and then instructed them that the matter was completely unrelated to the trial. The judge then interviewed each juror and alternate, obtaining their individual assurances that they could still be fair and impartial. Accordingly, the court denied defense counsel's request for a mistrial.

We are disturbed by the conduct of the INS agent, who serves the very Department of Justice which brought this prosecution. However, appellants can point to nothing specific to support their contention that they did not receive a fair and open trial. We are satisfied that any defects caused by this ill-considered conduct were cured by the trial judge's probing of the jury. The miscreant behavior of the INS agent does not require a new trial, given the allaying efforts of the trial judge.

1. Due Process Violation. Appellants contend that the Sentencing Guidelines, on their face, violate due process in that they give prosecutors the "unfettered discretion to combine charges" and reduce judges to "mere figureheads." Appellants rely mainly on Roberts, et al. v. United States, No. 89-0033 (D.D.C. Nov. 16, 1989), in which the district court opined that the Guidelines violated due process because they effected a de facto transfer of much of the responsibility for sentencing from impartial judges to prosecutors. The Roberts court noted: "It is not necessary, however, to rest the resolution of the cases before the Court on so broad a ruling," because specific questionable practices by the United States Attorney's office created a due process problem. We note that this decision has been appealed and is pending before this court.

Appellants offer no specific evidence of bad faith or discriminatory conduct by the prosecutors in this case. In the absence of some specific allegation of prosecutorial misconduct, we decline to find that the guidelines violate due process. See, e.g., United States v. Thomas, 884 F.2d 540, 543 (10th Cir. 1989).

2. Lafayette and Lewis as "Organizer/Leaders"

Appellants Lafayette and Lewis argue that section 3B1.1(a) of the Guidelines is unconstitutionally vague in that it fails adequately to distinguish between an organizer/leader and a manager/supervisor. In the alternative, they contend that they should have been found to be manager/supervisors. The Guidelines prescribe certain factors to distinguish between organizer/leaders and manager/supervisors:

Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

Guidelines Manual Sec. 3B1.1. The court made detailed factual findings regarding appellants' roles in the drug operation, finding, inter alia, that the operation consisted of four levels of organization and that the appellants constituted the top level. Below them were sellers on the streets and in homes, lookouts, and supervisors who oversaw operations in the apartments and who reported to appellants. Appellants make no specific challenges to these findings. Lewis merely states opaquely that " [a]s to several of the factors, decision making, claimed right to a larger share, and degree of participation in planning, no evidence was presented." We perceive no basis for concluding that the trial judge clearly erred in finding that Lafayette and Lewis were organizer/leaders.

As to the void-for-vagueness doctrine, we conclude that the necessarily imprecise factors outlined in section 3B1.1 articulate "an imprecise but comprehensible normative standard" rather than giving "no standard of conduct" by which a person could conform his or her actions. Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 495 & n. 7 (1982).

3. Lewis' Criminal History. In his brief, Lewis asserted that his criminal history score was calculated improperly under section 4A1.1(d) of the Guidelines, which allows a two-point enhancement if a defendant "committed the instant offense while under any criminal justice sentence." Guidelines Manual Sec. 4A1.1(d) (emphasis added). At oral argument, counsel for Lewis informed this court that the government has filed a motion in the district court to reduce Lewis' sentence to twenty years. We are satisfied that this action eliminates concerns about the use of a prior crime in the computation of Lewis' sentence.