US v. Oscar Baptiste, No. 13-4223 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4223 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OSCAR BAPTISTE, a/k/a Dread, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard M. Gergel, District Judge. (2:11-cr-02015-RMG-1) Submitted: December 31, 2013 Decided: April 16, 2014 Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort, South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Oscar Baptiste of importing 500 grams or more of cocaine and aiding and abetting the same, in violation of 18 U.S.C. § 2 (2012) and 21 U.S.C. § 952(a) (2012). The court sentenced Baptiste to 108 months imprisonment. On appeal, v. counsel has California, 386 U.S. meritorious grounds filed 738 for a brief (1967), appeal pursuant stating but to that Anders there questioning are whether no the district court erred by declining to issue a jury instruction on entrapment. which he sentence. Baptiste has filed a pro se supplemental brief, in raises several challenges to his conviction and We affirm. Baptiste argues in his pro se supplemental brief that the Government violated Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing the grand jury transcripts prior to the hearing on his motion to dismiss the superseding indictment. Pursuant to Brady, the government has a responsibility to disclose material evidence favorable to the accused. United States v. McLean, 715 F.3d 129, 142 (4th Cir. 2013). A due process violation occurs when (1) the evidence is favorable to the accused because it is exculpatory or impeaching; (2) the evidence was suppressed by the government, either willfully or inadvertently; and (3) the evidence is material. 2 Id. To be material, there must be a reasonable probability that disclosure of the evidence would have produced a different outcome. Id. We conclude that Baptiste has failed to demonstrate that the Government violated Brady by not disclosing the grand jury transcripts prior to the hearing on his motion to dismiss the superseding indictment. the Federal Rules of To the contrary, in accordance with Criminal Procedure, the district court allowed Baptiste s counsel to review relevant portions of the grand jury transcripts during the motions hearing. See Fed. R. Crim. P. 6(e)(3)(E)(ii) (providing that grand jury testimony may be disclosed at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury ). Next, Baptiste argues in his pro se supplemental brief that the district court superseding indictment. erred by failing to dismiss the In reviewing the denial of a motion to dismiss an indictment, we review the district court s factual findings for clear error and its legal conclusions de novo. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005). When a criminal indictment scrutiny. Cir. 2009). prior defendant challenges to verdict, the the we sufficiency apply a of an heightened United States v. Kingrea, 573 F.3d 186, 191 (4th A federal indictment must contain elements of the offense charged, fairly inform the defendant of the charge, and 3 enable the defendant to plead double jeopardy as a defense to future prosecutions for the same offense. United States v. Resendiz Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P. 7(c)(1). We conclude that Baptiste s indictment fairly informed him of the charge and the elements thereof. Because the aiding and abetting provision [18 U.S.C. § 2] does not set forth an essential element of the offense with which [Baptiste] is charged or itself create a separate offense, aiding and abetting liability need not be charged in [the] indictment. United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). Moreover, the essential language of Baptiste s indictment includes elements of the 21 U.S.C. § 952(a) offense. the See United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (listing elements of § 952 offense); see also Fed. R. Crim. P. 7(c)(2) (providing that typographical error in indictment dismissal unless it prejudices defendant). is not ground for Finally, we conclude that the district court did not err by determining that the Government accurately presented the facts of the case to the grand jury, contention and that therefore, the we Government find no misled merit the in grand Baptiste s jury when seeking the indictment. Counsel questions whether the district court erred by declining to issue a jury instruction on entrapment. 4 We review de novo a district court s decision to deny a defendant s requested instruction on entrapment. United States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006). However, [t]he district court is the gatekeeper; if the defendant does not produce more than a scintilla of evidence of entrapment, the court need not give the instruction. United States v. Hackley, 662 F.3d 671, 681 (4th Cir. 2011) (internal quotation marks omitted), cert. denied, 132 S. Ct. 1936, 2703 (2012). has two elements: (2) the An entrapment defense (1) government inducement of the crime and defendant s lack of predisposition criminal conduct. Ramos, 462 F.3d at 334. involves of elements governmental to engage in the Inducement . . . overreaching and conduct sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party. United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993). After reviewing the trial transcript, we find no evidence that the Government induced Baptiste to engage in the criminal conduct. Rather, the confidential informant ( CI ) emphatically stated that Baptiste approached him about the plan to import cocaine into the United States from Panama. Any question as to the CI s credibility was addressed in the court s specific instruction that the jury should consider the CI s testimony with a heightened degree of scrutiny. In sum, we find that his Baptiste needed no nudging 5 to initiate importation scheme, to contact his acquaintances in Panama, and to provide the CI with the specific container number in which the cocaine ultimately arrived. court correctly Accordingly, we conclude that the district declined to issue a jury instruction on entrapment. Baptiste argues in his pro se supplemental brief that the evidence was insufficient to support his conviction. We review the denial of a Fed. R. Crim. P. 29 motion de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a Rule evidence, 29 the substantial motion is based on jury s verdict must evidence, taking the Government, to support it. a be view claim of sustained most insufficient if there favorable to is the United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and brackets omitted). We have defined substantial evidence as evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693 (internal quotation marks omitted). To support a conviction of importing 500 grams or more of cocaine, the Government was required to prove: (1) that the [500 grams or more of cocaine] was imported; (2) that [the 500 grams or more of cocaine] was imported knowingly and willfully; and (3) that [Baptiste] willfully associated himself with the 6 importation venture. Ashcroft, 395 Samad, 754 F.2d at 1096; see Argaw v. F.3d 521, 524 (4th Cir. 2005) (considering elements of importation in immigration context). After reviewing the trial transcript, we conclude that, contrary to Baptiste s contention, overwhelming evidence linked Baptiste to the container in imported into the Port of Charleston. which the cocaine was The evidence demonstrates that Baptiste met with the CI on several occasions to discuss the plan to import the cocaine. Notably, at the meeting on the night before the cocaine was discovered, Baptiste provided the exact number of the container in which the cocaine would be shipped and advised the CI that the cocaine would be packaged in a Choco Krispis box. Agents found the cocaine in the numbered container in a Choco Krispis box the next day. evidence numbers demonstrates the CI and that the the case email agent address used to Moreover, the and telephone communicate with Baptiste about the shipment were registered in Baptiste s name. In one email, Baptiste indicated that he needed to fly back to Panama to work out the details of the shipment, and the case agent confirmed that Baptiste flew to Panama shortly thereafter. Finally, while Baptiste claims that he only discussed auto parts with the CI, both the CI and the case agent testified that they referred to auto parts to establish a code for the criminal activity. Accordingly, the Government 7 produced sufficient evidence to support Baptiste s conviction, and the district court did not err by denying Baptiste s Rule 29 motions. Baptiste s final argument in his pro se supplemental brief is that the district court erred by not requiring the jury to find the drug weight attributable to him beyond a reasonable doubt. grams The jury found that Baptiste was guilty of importing 500 or more of cocaine; the higher figure found by the district court, by a preponderance of the evidence, affected Baptiste s advisory sentencing exposure. Guidelines range, not his statutory We conclude that Baptiste s argument is without merit, as the district court was empowered to determine the quantity of drugs attributable to Baptiste for Guidelines purposes by a preponderance of the evidence. United States v. Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008). In accordance with Anders, we have reviewed the record and have found no meritorious grounds for appeal. affirm the district court s judgment. We therefore This court requires that counsel inform Baptiste, in writing, of the right to petition the Supreme Court of the United States for further review. If Baptiste requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Baptiste. 8 We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 9

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