US v. David Watt, No. 10-4282 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4282 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID EARL WATTS, a/k/a High Gear, a/k/a Driver, Defendant - Appellant. 10-4283 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES BARNARD HAITHCOCK, a/k/a Boss Hog, Defendant Appellant. Appeals from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-00372-TLW-1; 4:08-cr-00372-TLW-5) Argued: September 21, 2011 Decided: Before GREGORY, WYNN, and DIAZ, Circuit Judges. November 9, 2011 Affirmed by unpublished opinion. Judge Gregory opinion, in which Judge Wynn and Judge Diaz joined. wrote the ARGUED: Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina; Gregory Poole Harris, HARRIS & GASSER, LLC, Columbia, South Carolina, for Appellants. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Jeffrey Mikell Johnson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 GREGORY, Circuit Judge: This case is on appeal from appellants convictions and sentence for one count of conspiring to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 841. Appellants present five claims of error to this Court: (1) the district court improperly denied appellants motion to suppress evidence seized in connection with a search of appellant Watts s home after district the court Government erroneously lost the denied search warrant; appellants motion (2) the for a mistrial after the prosecutor improperly relied on statements not in evidence during her closing arguments; (3) the prosecutor unfairly attacked appellants trial attorneys during the rebuttal argument, depriving them of a fair trial; (4) there was insufficient evidence for the court to attribute 6.3 kilograms of methamphetamine to Watts; and (5) there was insufficient evidence for the court to impose a two-level, managerial role enhancement to Watts s sentence. After careful review, we reject each of these arguments and affirm. I. Defendant-appellants David Earl Watts and James Barnard Haithcock were, along with several others, indicted, tried, and convicted of one count of conspiring to possess with intent to distribute methamphetamine, in violation of 21 U.S.C § 841. 3 The Government alleged that from 1999 up to indictment, Watts and Haithcock participated in a conspiracy to produce methamphetamine with thirty to fifty other people. obtained evidence from a number of sources, and sell The police including two searches of Watts s home. Before trial Watts joined co-defendant Flint Ratliff s motion to suppress evidence that was obtained pursuant to the 2003 search of Watts s home on grounds that it violated Watts s Fourth Amendment informed the rights. district court accompanying affidavit testimony Christopher of At had the that been Page, hearing, the lost. a the Government search warrant and After hearing the narcotics officer with the Chesterfield County Sheriff s Office, the court found that the search warrant did exist, that there was sufficient evidence to support a finding of probable cause, and that the Fourth Amendment s particularity requirement was satisfied. At trial, the court heard from several witnesses, including Watt s ex-wife, Karen Watts ( Karen ). The Government also introduced evidence obtained in a second search of Watts s home conducted in 2005. Appellant Haithcock also took the stand. He testified, inter alia, that he was arrested in May 2008 in a methamphetamine investigation. jail, Haithcock and his After spending several days in attorney met with DEA agents provided a proffer statement about his methamphetamine use. 4 and On cross examination, the prosecutor impeached extensive use of the proffer statement. Haithcock, making The Government referred to the proffer during its closing arguments, arguing that just based on Mr. Haithcock s statement . . . to the DEA that you could convict each of these defendants . . . . Also during the prosecution s closing, the Government made several references to defense counsel s argument, calling it a red herring defense that is improper and mere speculation. The Government spoke about defense counsel, telling the jury, They don t want you to focus on the testimony. They don t want you to focus on the evidence, and later, [L]ook at the way he cross examined every one of these witnesses . . . . The Government also discussed the plea agreements it made with several witnesses; it told the jury that plea agreements [are] designed, I submit to you, to force truthful cooperation. At the sentencing hearing, the district court attributed 6.3 kilograms of methamphetamine to Watts. The court also imposed a two-level enhancement for Watts s leadership role in the conspiracy. Watts was sentenced to 360 months in prison. II. We consider each of appellants five claims of error in turn. 5 A. The Lost Search Warrant Appellant Watts argues that the district court improperly denied his motion to suppress evidence after admitted that it lost the search warrant. of a district court s denial of a the Government In hearing an appeal motion to suppress, an appellate court reviews findings of fact for clear error and determinations of probable cause de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Richardson, 607 F.3d 357, 369 (4th Cir. 2010). The Fourth Amendment generally requires that before searching a home, the police must procure a warrant issued by a neutral magistrate; this warrant must be supported by probable cause and contain a particular description of the place to be searched and the items to be seized. Searches conducted without a valid U.S. CONST. amend. IV. warrant are presumptively unreasonable, Groh v. Ramirez, 540 U.S. 551, 559 (2004), and the exclusionary rule bars a prosecutor from introducing evidence obtained in violation of the Fourth Amendment during its casein-chief, Davis v. United States, 131 S. Ct. 2419, 2424 (2011). However, an officer acting with an objectively reasonable goodfaith belief Amendment that the overcomes particularity. See id. search was deficits in in accord with probable the cause Fourth and Moreover, the Government may also use unconstitutionally obtained evidence to impeach the defendant s 6 testimony. United States v. Leon, 468 U.S. 897, 910 (1984). If an error is found with a district court s ruling, this Court subjects that ruling to harmless error review, asking whether the defect affect[ed] substantial rights. 52(a). FED. R. CRIM. P. Evidence admitted in violation of the Constitution is harmless if the appellate court finds the constitutional error was harmless beyond a reasonable doubt. Ali, 528 F.3d 210, 256 (4th Cir. United States v. Abu 2008) (citing Chapman v. California, 385 U.S. 18, 24 (1967)). In this case, Watts contends that the Government did not meet its burden of proof in demonstrating that the lost warrant both existed and complied with the Fourth Amendment. The Government responds by arguing that it did meet its burden and that in any case, the error was harmless. This Circuit has not had occasion to address the appropriate standard for searches involving a subsequently lost warrant. It is clear that the Fourth Amendment s particularity requirement must be satisfied by the contents of the warrant itself, and not by its supporting documents. violation Groh, when 540 the U.S. at 557 affidavit, sufficiently particular). but (finding not a the constitutional warrant, was But Groh left open the question of whether any evidence besides the warrant itself can be used to prove a missing warrant s existence or contents. Circuit considered this question 7 in United The Eleventh States v. Pratt, where it held that when a warrant is not in evidence at a suppression hearing, a prosecutor must prove, by a preponderance of the evidence, the missing search warrant s exact language describing the place to be searched and the persons or items to be seized. United States v. Pratt, 438 F.3d 1264, 1270 (11th Cir. 2006). Without ruling on the appropriate legal standard for cases involving Government district lost search violated court warrants, Watts s erred in we Fourth failing find that Amendment to even rights suppress the collected from the search, the error was harmless. if the and the evidence Because only Watts has standing to challenge the search of his home, we do not consider the effect the alleged Fourth Amendment violation had on Haithcock s conviction and sentence. Over an eight-day trial where more than two dozen witnesses testified, only two made any mention of the first search of Watts s home. * that officers One, Investigator Wayne Jordan, told the jury found methamphetamine; the other, Christopher Page, said the police found several guns, a set of scales, and two bags containing methamphetamine. Watts s guilt. what was later determined to be None of these facts was necessary to establish The fact that Watts possessed methamphetamine * The search at issue here took place on November 24, 2003; a second search occurred at the same location on July 14, 2005. 8 was effectively admitted by the defense during closing arguments when counsel told the jury there was no doubt that Watts used methamphetamine. Moreover, the 2005 search of Watts s home, which neither appellant challenges, produced substantially the same evidence against Watts and then some: upon arrival, the police found Karen and Watts (who was not present at the first search) sitting in front of a coffee table with two lines of white powder in methamphetamine, front plastic of them; baggies, the police digital also scales, recovered a security monitor, empty gel caps, empty ephedrine boxes, and a cutting agent. And while we register some concern with respect to the introduction of evidence that there were guns inside Watts s home, we also note that Watts was not charged with any crime relating to the possession of a firearm. Besides the evidence obtained by the 2005 search, the prosecution also put on nine witnesses who testified that they purchased or received methamphetamine from Watts. Karen and a woman named Jeannie Street both testified that they provided Watts with pseudoephedrine methamphetamine. pills for the manufacture of Ms. Street also said that she allowed Watts to bury tanks of anhydrous ammonia in her yard. Several witnesses also told the jury that they saw Watts making methamphetamine, and three said that Watts himself showed them how to manufacture the drug. In considering the substantial and mostly uncontested 9 evidence admitted into the record against Watts, we find beyond a reasonable doubt that any Fourth Amendment violation was harmless. B. The Motion for a Mistrial Appellants contend that it was improper for the Government to refer to Haithcock s proffer statement to the DEA during its closing arguments because that statement was never admitted into evidence. The Fourth Circuit reviews a district court s denial of a motion for a mistrial for abuse of discretion. States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003). United When the motion concerns the Government s closing arguments, this Circuit requires the application of a two-pronged test: the prosecutor s whether such remarks remarks or or conduct conduct was (1) whether improper, prejudicially and (2) affected the defendant s substantial rights so as to deprive [him] of a fair trial. Id. (citing United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994)). An appellate court also reviews claims of improper closing arguments for harmless error. 52(a). able FED. R. CRIM. P. To find the error harmless, this Court need only be to say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). 10 A fundamental rule of law is that argument is limited to the facts in evidence. 298 (4th normally Cir. be United States v. Wilson, 135 F.3d 291, 1998). used as Past inconsistent substantive evidence, statements as hearsay from being admitted. FED. R. EVID. 802. Rule cannot 802 bars The defendant s previous statements, however, are not hearsay. FED. R. EVID. 801(d)(2)(A). is admissible. relevant: Relevant, non-hearsay FED. R. EVID. 402. evidence normally Here, Haithcock s statement was it directly contradicted several statements he made during his direct examination. And of course, any party may impeach a witness s testimony. FED. R. EVID. 607. statement was straightforwardly admissible. Thus, the See United States v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (finding no error where the consider district the substantive court instructed defendant s evidence). prior The only the jury inconsistent question is that it statements whether it may as was admitted. The record indicates that the prosecutor mentioned only one fact from the proffer that direct or cross examination: Haithcock did not testify conclude, based on on that he had his attorney, Mr. McBratney with him when he made the statement. cannot to this one minor However, we detail, that the prosecution s closing arguments were improper under Francisco, much less that they prejudicially 11 affected appellants substantial rights. [T]o parse through a prosecutor s closing statement for minor infelicities loses sight of the function of our adversary system, which is to engage opposing views in a vigorous manner. United States v. Johnson, 587 F.3d 625, 632- 33 (4th Cir. 2009). The district court s denial of appellants motion for a mistrial, therefore, was proper. C. The Government s Closing Arguments Appellants next claim that the prosecution s comments during its closing arguments about defense counsel were improper and that the Government bolstered and vouched for its witnesses. A district arguments. court has broad discretion with respect to oral It will be overturned only for abuse of discretion under Stockton s two-part test. See Stockton, 349 F.3d at 762. Appellants did not object to the prosecutor s comments, a fact they concede here. Appellant s Br. 38. When a defendant fails to object at trial, the appellate court reviews only for plain error. United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010). While their courts closing grant arguments, counsel the great guiding latitude in principle prosecutor should not strike foul blows. presenting is that a United States v. Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004), rev d on other grounds, 543 U.S. 1112 (2005). It is therefore improper for a prosecutor to launch a personal attack upon the defense attorney 12 or upon defense attorneys generally. Id. Here, the comments made by the prosecutor about defense counsel, while pointed, were not personal attacks. It is true that the prosecutor referred to defense counsel s theory as a red herring defense, and made comments like They don t want you to focus on the testimony you ve heard in this case, and at one point during a sharp back-and-forth, the Government even commented in reference to defense counsel s actions, It s misleading, Your Honor, and I object. But none of these are personal attacks against the defendant s attorney; they reflect a spirited disagreement with the arguments made by the opposing party and do not concern the attorneys themselves. See Ollivierre, 378 F.3d at 418 (finding that the prosecution s comments, including that defense counsel tries to weave in distorted facts to try to make his argument, were not improper). Moreover, attacks under Ollivierre: the comments simply were not litigation at times becomes heated, and the comments here do not rise to anything near the level of acrimony necessary to reverse a district court on abuse-of- discretion grounds. Similarly, the Government did not impermissibly bolster or vouch for its witnesses. Impermissible [v]ouching occurs when a prosecutor indicates a personal belief in the credibility or honesty of a witness; bolstering is an implication by the government that the testimony of a witness is corroborated by 13 evidence known to the government but not known to the jury. United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). However, such improper comments do not always require retrial: the issue is whether the prosecutors comments so infected the trial with unfairness as to make the resulting conviction a Id. (citing United States v. Mitchell, denial of due process. 1 F.3d 235, 240 (4th Cir. 1993)). With respect to vouching, this Court adopted the Tenth Circuit s explanation of the types of comments that are appropriate with regard to plea agreements in closing arguments: Presenting evidence on a witness obligation to testify truthfully pursuant to an agreement with the government and arguing that this gives the witness a strong motivation to tell the truth is not, by itself, improper vouching. . . . Use of the truthfulness portions of [a plea agreement] becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness testimony. United States v. Collins, 401 F.3d 212, 216 (4th Cir. 2005) (citing United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)). Here, the Government did not improperly vouch. statement made prosecution s force remark, truthful prosecution with was respect [I]t s to to plea designed, cooperation. able the This monitor 14 and The only agreements I submit did not accurately to is the you, to suggest the verify the truthfulness of any testimony; it is instead a general comment implying that the witness has a strong motivation to tell the truth. See also United States v. Celestine, 43 Fed.Appx. 586, 596 (4th Cir. 2002) (finding the prosecutor s closing remarks were not improper in part because the phrase I contend to you indicates routine prosecutor s argument, personal and not opinion ). the As expression for the charge the of of bolstering, there is simply no indication the Government ever suggested it corroborated had any evidence witness s not known testimony. to the jury Appellant s that argument, therefore, is rejected. D. The Quantity of Methamphetamine Turning to his sentence, Watts argues that the district court erred in attributing 6.3 kilograms of methamphetamine to him. This Court reviews finding for clear error. 147 (4th Cir. 2009). a district court s drug quantity United States v. Kellam, 568 F.3d 125, That burden is satisfied when the review of all of the evidence leaves the court with the definite and firm conviction that a mistake has been committed. Easley v. Cromartie, 532 U.S. 234 (2001) (quoting United States v. United States Gympsum Co., 333 U.S. 364, 395 (1948)). When a defendant objects to a quantity of drugs, the district court must make an independent, factual determination of the issue. United States v. Williams, 152 F.3d 392, 300 (4th 15 Cir. 1998). In reaching its decision, the district court must find that it is more probable than not that the defendant was responsible for at least the quantity of drugs attributable to him. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). Precise calculations of the amount of drugs are not required; the district court may approximate the quantity to be used for sentencing. United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992) (quoting 18 U.S.C. § 3742(e) (2003)). conspirator may be attributable to held the accountable conspiracy as for long as all of it was the A drugs reasonably foreseeable that the drugs would be involved in the conspiracy. United States v. Osborne, 345 F.3d 281, 284-85 (4th Cir. 2003) (citing United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993)). In this case, appellants concede that, because of the conspiracy charge, Watts is liable for the uncontested 2.607 kilograms of methamphetamine attributed to his co-conspirators. Appellant s Br. 50. As for the remaining 3.693 kilograms, the district court relied heavily on the testimony of Karen. evaluating testimony, due regard to the opportunity of In the district court to judge the credibility of the witnesses shall be given. did not Uwaeme, 975 F.2d at 1018. err appellants in crediting arguments that Karen s the 16 Here, the district court testimony, Wattses had notwithstanding a tumultuous relationship and that Karen did not have significant contact with Watts during part of the conspiracy. gave several truthful: reasons for finding that The district court Karen s testimony was it noted that her statements were mostly consistent; that she substantially incriminat[ed] herself; that the court observed her demeanor and found her to be credible; that she had a basis to know the facts to which she testified; and that her testimony was credited by the jury. Moreover, the presentence report attributed 15.3 kilograms of methamphetamine to Watts. Rather than taking a heavy-handed approach, the district court err[ed] on the that denominator side [it substantially. of caution, could] used use, and every lowest common that amount reduced The drug weight attributed to Watts, therefore, was not erroneous. E. The Managerial Role Sentencing Enhancement Finally, appellant Watts argues that there was insufficient evidence for the court to impose a two-level managerial enhancement at sentencing because Watts, rather than having a leading or supervisory role in the conspiracy, was merely one member of a loose-knit methamphetamine. decision to organization that bought and sold The Fourth Circuit reviews a district court s apply a sentencing adjustment for clear United States v. Sayles, 296 F.3d 219 (4th Cir. 2002). 17 error. A district court may impose a two-level enhancement against a defendant that it finds acted as an manager, or supervisor of the conspiracy. organizer, leader, U.S.S.G. § 3B1.1(c). In reaching its decision, district courts look to seven factors: (1) the exercise of decision making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others. United States v. Cameron, 573 F.3d 179, 1984 (4th Cir. 2009) (citing U.S.S.G. § 3B1.1, cmt. n.4). Here, the factors point in favor of a finding that Watts acted in a managerial role. begin acting with, as a Watts had significant supervisor on a decision-making number of To authority, occasions: He, for example, ordered Karen to purchase pseudoephedrine pills and to bubble liquid methamphetamine and would intermittently forbid Karen from entering the house where he and conspirators were cooking methamphetamine. the other co- Watts also taught several of his co-conspirators how to make the drug, including David Flake, Shaun Runyan, and Robert Rowell. occasion, purchase a woman named methamphetamine; Michelle Watts Goodwin directed a Finally, on one visited woman to Watts to pull up Goodwin s shirt to see whether she had a recording device. In looking at the record as a whole, it is clear from the testimony 18 that Watts acted as an organizer and leader in the conspiracy. The district court did not commit clear error in applying the two-level managerial enhancement. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED 19

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