UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4995
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO DEMONTA HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-03-88)
Argued: October 28, 2005 Decided: December 8, 2005
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Sue Ann Genrich Berry, BOWEN, BERRY & POWERS, Wilmington,
North Carolina, for Appellant. Christine Witcover Dean, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c)
PER CURIAM:
Antonio Harvey challenges his convictions and sentence for
conspiracy to distribute and possess with the intent to distribute
cocaine base, and related narcotics offenses. We affirm Harvey’s
convictions, but because his sentence violated the Sixth Amendment,
vacate his sentence and remand for a resentencing.
I.
A grand jury indicted Harvey for conspiring with Torrie Hood,
Ali Freeman, Benjamin Tyson, and others “known and unknown to the
Grand Jury” to distribute and possess with the intent to distribute
fifty grams of cocaine base (crack), beginning in September 2001
and continuing until December 2003, in violation of 21 U.S.C.A. §§
841(a)(1) and 846 (West 1999). The indictment also charged Harvey
with one count of distribution of five grams cocaine base in
violation of 21 U.S.C.A. § 841(a)(1) (West 1999) and one count of
distribution of five grams cocaine base and aiding and abetting in
violation of 18 U.S.C.A. § 2 (West 2000) and 21 U.S.C.A.
§ 841(a)(1) (West 1999).
At trial the Government presented six witnesses who claimed to
have engaged in drug transactions with Harvey. Lieutenant Michael
Stevens, an undercover officer with the Duplin County, North
Carolina Sheriff’s Department, testified that he twice bought crack
from Harvey as part of a drug investigation. Lieutenant Stevens
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first encountered Harvey on September 25, 2001 when he was
attempting to buy narcotics from Harvey’s co-defendant Ali Freeman.
While Lieutenant Stevens was at the residence of a confidential
informant in Kinston, North Carolina, Harvey approached and asked
if the lieutenant was looking to buy drugs. Lieutenant Stevens
indicated that he was looking for an ounce and a half of crack.
Harvey said that he would be able to help, but that it would take
a few minutes to contact his source. Harvey left to make a phone
call, but did not return for some time. Before Harvey returned,
Freeman and Torrie Hood, who was also named in the indictment,
arrived and sold an ounce and a half of crack to Lieutenant
Stevens, who did not buy crack from Harvey on that occasion.
One month later, on October 12, 2001, Lieutenant Stevens
targeted Harvey for a drug transaction. The lieutenant waited
outside Harvey’s residence until he returned and then asked if
Harvey could obtain an ounce and a half of crack. After making a
phone call, Harvey told Lieutenant Stevens that they had to go pick
up the drugs. Harvey climbed in the back of Lieutenant Stevens’
pickup truck and directed him to a different residential area of
Kinston. Harvey took $1,500 from Lieutenant Stevens and obtained
for him a package containing 35.2 grams cocaine base. When
Lieutenant Stevens discovered that he had received approximately
six grams fewer than he had paid for, he returned to Harvey’s
residence to demand repayment for the shortage. Harvey told the
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lieutenant he would “do a makeup on the next transaction,” meaning
that he would give Stevens an extra six grams on his next purchase
from Harvey.
Lieutenant Stevens bought crack from Harvey on a second
occasion one year later. On September 6, 2002, the lieutenant
again approached Harvey at his residence looking to buy an ounce of
drugs. After placing a telephone call, Harvey told Lieutenant
Stevens to go wait at a nearby house for the drugs to be delivered.
While the officer waited at the second residence, Harvey and Hood
approached to ask if Lieutenant Stevens “was for real about
purchasing it.” After five to ten minutes, Hood returned with a
bag containing approximately five ounces of crack cocaine. Hood
measured out 27.8 grams crack for Lieutenant Stevens, and told him
that he could call Harvey if he needed to contact Hood in the
future. Lieutenant Stevens reported that Hood told him that Harvey
was “his man.”
Hood stated that he began supplying drugs to Harvey in 1999,
when Harvey was having trouble paying bills. Hood advanced Harvey
an ounce of crack, which Harvey paid for three to four days later.
Hood later advanced Harvey another ounce, but ceased supplying him
with drugs after Harvey failed to repay Hood for that second ounce.
Harvey began obtaining drugs from a person named “Black” after Hood
refused to deal with him. Hood resumed supplying drugs to Harvey
again in early 2001, however, when Harvey asked to buy smaller
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quantities of crack by paying cash up front. Hood also filled
orders when Harvey called and asked him to deliver a specific
quantity of crack for a buyer. Hood admitted to participating in
the sale to Lieutenant Stevens in September 2002. He also
testified that Harvey kept a gun under the parking brake in his
Jeep.
Hood’s cousin Benjamin Tyson, another named co-conspirator,
testified that he sold an ounce of crack to Harvey on two separate
occasions in 2003. He also asserted that he used to walk by
Harvey’s house and talk with him about selling crack at least twice
a month.
Three other persons not named in the indictment testified that
they had engaged in drug transactions with Harvey. Jonothor Fields
related that he sold Harvey crack in “like 2000 and 2002.” Gregory
Bryant said that he sold crack to Harvey in 2002. Finally, Elmer
Ray Vaughn testified that he had bagged and sold drugs with Harvey
in 1997 and 1998, that he had sold drugs to Harvey in 2000 and
2001, and that he sold drugs with Harvey at a fairground in 2001.
Harvey himself testified, claiming that he never used drugs.
Although he admitted that he participated in the September 2001
transaction with Lieutenant Stevens, he claimed to have done so at
the request of an officer named Williams. Harvey specifically
contested all of the other testimony regarding his alleged
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participation in drug transactions, including the second
transaction involving Lieutenant Stevens.
The jury convicted Harvey on all three counts. The
presentence investigation report calculated that Harvey conspired
to distribute and possess with an intent to distribute 1,733.7
grams of cocaine base. Harvey objected to that quantity
calculation, stating that he was only willing to stipulate to the
quantity of drugs sold to Lieutenant Stevens -– a total of 53
grams. The district court found by a preponderance of the evidence
that Harvey was responsible for over 1,500 grams, giving him a base
offense level of 38. The court also imposed, over Harvey’s
objection, a two-level enhancement for possession of a firearm
during a drug transaction. With an offense level of 40 and a
criminal history category of III, Harvey’s sentencing range was 360
months to life.
Harvey contested this proposed sentence, on the ground that
the then mandatory federal Sentencing Guidelines were invalid. The
district court overruled that objection, relying on our now-vacated
opinion in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004),
vacated and remanded, 125 S. Ct. 1051 (2005). The court sentenced
Harvey to 360 months on the conspiracy count, with concurrent
sentences on the distribution and aiding and abetting offenses.
The court then announced an alternative sentence, as suggested by
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Hammoud, of 240 months. Harvey appeals, challenging both his
convictions and sentence.
II.
Harvey first contends that the Government constructively
amended the conspiracy charge by introducing evidence of “a series
of separate, unrelated transactions.” Brief of Appellant at 14.
Because Harvey did not assert this argument at trial, we review it
only for plain error. United States v. Floresca, 38 F.3d 706, 711-
12 (4th Cir. 1994); Fed. R. Crim. P. 52(b). For Harvey to prevail,
he must establish that an error occurred, that it was plain, and
that it affected his substantial rights. Id. at 712 (quoting
United States v. Olano, 507 U.S. 725 (1993)). Even if Harvey makes
this three-part showing, we will not exercise our discretion to
notice the error unless it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
Because there was no constructive amendment of the indictment
in this case, Harvey can not meet even the first plain error prong.
A constructive amendment occurs when “the government, through its
presentation of the evidence and/or its argument, or the district
court, through its instructions to the jury, or both, broadens the
bases for conviction beyond those charged in the indictment.”
United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). Not
every variance between the indictment and proof rises to the level
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of a constructive amendment, however. “When different evidence is
presented at trial but the evidence does not alter the crime
charged in the indictment, a mere variance occurs.” Id.
Harvey contends that the Government’s evidence represented
more than a mere variance. He argues that the Government’s
evidence did not prove a conspiracy, but established only that “the
Defendant bought some crack from Hood and the Defendant bought some
crack from Tyson.” Brief of Appellant at 14. In light of this,
Harvey contends that “the evidence at trial altered the charge in
Count One from a single conspiracy involving Hood and Freeman and
Tyson and [himself] to a series of separate, unrelated
transactions.” Id. This argument rests on a misunderstanding of
conspiracy law.
To prove a conspiracy, the Government need show only an
agreement among conspirators, that the defendant knew of the
conspiracy, and that the defendant voluntarily joined the
conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996)(en banc). “[I]n contemporary drug conspiracies,” the
agreement element “contemplates and results in only a loosely-knit
association of members linked only by their mutual interest in
sustaining the overall enterprise of catering to the ultimate
demands of a particular drug consumption market.” United States v.
Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). Clearly, a jury could
conclude that evidence Harvey engaged in specific drug transactions
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proves an “agreement.” Moreover, a reasonable jury could also find
this evidence demonstrates the knowledge and voluntary
participation elements of the crime. See, e.g., Burgos, 94 F.3d at
859. Hence, the evidence that Harvey participated in drug
transactions was not evidence of a different crime, but was instead
compelling evidence that Harvey agreed to, knew about, and
willingly participated in a drug conspiracy.
Harvey mistakenly relies on two cases in which we found an
indictment had been constructively amended. See Randall, 171 F.3d
at 210; Floresca, 38 F.3d at 710. In both, the defendant was
essentially convicted of a crime for which he was not charged. In
Randall, although the indictment charged only that the defendant
carried a gun while distributing illegal drugs, the jury was
instructed that it could find him guilty based on the uncharged
predicate offense of possession with intent to distribute.
Randall, 171 F.3d at 203-04. Similarly, in Floresca, although the
defendant was charged with violation of one portion of the witness
tampering statute, the jury was presented evidence about -- and
instructed on finding a violation of -- a separate part of that
statute. Floresca, 38 F.3d at 709. Here, by contrast, the jury
convicted Harvey of the same crime for which he was charged:
conspiracy. That the conspiracy was proved through a series of
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drug transactions (which, taken together, made up the conspiracy)
does not mean that the jury convicted Harvey of a different crime.
III.
Harvey next contends the district court erred by admitting
evidence of prior bad acts in violation of Federal Rule of Evidence
404(b). Specifically, Harvey complains of Jonothor Fields’
testimony that he sold Harvey crack in “like 2000 and 2002,”
Gregory Bryant’s testimony that he sold crack to Harvey in 2002,
and Elmer Ray Vaughn’s testimony that he bagged and sold drugs with
Harvey in 1997 and 1998, that he sold drugs to Harvey in 2001, and
that he sold drugs with Harvey at a fair in 2001. Harvey asserts
that the only purpose for this testimony was to demonstrate his
criminal propensity, and thus the evidence was non-probative and
prejudicial.
Because he never articulated a Rule 404(b) objection at trial,
we review Harvey’s evidentiary objection for plain error. Fed. R.
Evid. 103(a)(1); United States v. Brewer, 1 F.3d 1430, 1434 (4th
Cir. 1993). Like his constructive amendment claim, Harvey’s bad
acts claim cannot survive the first step of this review because no
error occurred.
As a threshold matter we reject Harvey’s contention that
individual drug transactions are “not intrinsic” to the charged
drug conspiracy. See Brief for Appellant at 19. To the contrary,
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evidence of repeated buying and selling of drugs is inherent in the
crime of conspiring to distribute narcotics and possess them with
the intent to distribute. Nor does the fact that Fields, Bryant,
and Vaughn were not named conspirators make this activity extrinsic
to the crime. The indictment referred to other co-conspirators
“known and unknown to the Grand Jury.”
To be sure, some of these transactions occurred before the
time frame covered by the indictment (2001-2003). But “the mere
fact that the evidence involved activities occurring before the
charged time frame of the conspiracy does not automatically
transform that evidence into ‘other crimes’ evidence.” United
States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994). Such
testimony should not be considered “other crimes” evidence if, as
here, it “arose out of the same . . . series of transactions as the
charged offense.” Id. (internal citation omitted). Because these
transactions were substantially identical to the conspiracy alleged
in the indictment -- they occurred in the same residential areas of
Kinston, involved the same controlled substance, and were close in
time to the period charged -- we believe that they were part of the
same series of transactions. Thus, they were not evidence of
“other crimes.”
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IV.
Harvey next asserts that the district court should have issued
two additional jury instructions. Because his counsel did not
request either instruction at trial, we review the district court’s
failure to offer the instructions sua sponte for plain error.
United States v. Brown, 202 F.3d 691, 698 n.13 (4th Cir. 2000);
Fed. R. Crim. P. 30(d).
A.
Harvey first argues that the district court erred in not
offering a special instruction about the credibility of accomplice
witnesses. He maintains that because he denied being involved in
drug dealing, the court should have given a special cautionary
instruction about the danger of accomplice witnesses who claimed
otherwise. This argument fails.
“The general rule is that accomplice instructions are
preferred when accomplices testify against defendants, due to the
inherent unreliability of this testimony, but the failure to give
such an instruction is not reversible error.” United States v.
McCabe, 720 F.2d 951, 955 (7th Cir. 1983) (emphasis added) (citing
Caminetti v. United States, 242 U.S. 470 (1917) (refusing to
overturn conviction where court failed to give requested accomplice
testimony instruction)). Several circuits have recognized an
exception to this general rule where “the accomplice testimony is
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not supported by a minimum amount of corroboration.” Id. at 955-56
(collecting authorities). However, we need not here decide whether
we would adopt that exception because in this case there was
substantial corroboration of the accomplices’ testimony: namely
Lieutenant Stevens’ testimony and the actual drugs he purchased
from Harvey.
B.
Harvey also asserts the district court erred by not
instructing the jury sua sponte on the affirmative defense of
“public authority.” This defense allows a defendant to “seek[]
exoneration based on the fact that he reasonably relied on the
authority of a government official to engage in a covert activity.”
United States v. Fulcher, 250 F.3d 244, 253 (4th Cir. 2001). A
defendant’s reliance must be objectively reasonable, and the
official must possess actual –- not merely apparent –- authority.
Id. at 253-54. Harvey’s claim of entitlement to this instruction
also fails.
A defendant is only entitled to an instruction on an
affirmative defense where “there exists evidence sufficient for a
reasonable jury to find in his favor.” Mathews v. United States,
485 U.S. 58, 63 (1988). Harvey’s asserted right to this defense
rests solely on his own testimony that (1) he “got the drugs
because [he] helped the officer named Williams”; (2) that a “dude
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named Tom, you know, that he couldn’t do the undercover buy that
might have occurred from a dude named Love. So he asked me to help
him”; and that (3) the police dropped a traffic charge pending
against him after he helped make a drug buy.
These unsupported assertions do not supply a jury with the
basis for a finding that Harvey was objectively reasonable in
relying on the actual authority of a law enforcement officer.
Indeed, Harvey’s own testimony casts serious doubt on his claim
that he relied on a police officer’s authority. He testified that
he “guess[ed]” he was helping out the police, that he never
prepared any reports of his participation in a drug buy, that he
never got paid for helping out, and that he never even talked to
Lieutenant Stevens about his undercover status -- or the fact that
he was helping out -- because “[i]t was a [sic] in and out thing.”
Moreover, Lieutenant Stevens’ testimony that Harvey offered to make
up the shortage on their next transaction completely belies the
notion that Harvey was acting undercover for the September 2001
transaction. Finally, there is no evidence in the record (aside
from Harvey’s assertion) about any officer Williams; the Government
is unaware of who he is or of any involvement he had in the case.
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V.
Finally, Harvey contends that he should be resentenced because
the district court violated the Sixth Amendment by enhancing his
sentence based on facts not alleged in his indictment or found by
the jury. See United States v. Booker, 125 S. Ct. 738 (2005).
Specifically, Harvey complains that the district court found him
responsible for over 1,500 grams cocaine base, whereas the
indictment alleged only that he was responsible for more than 50
grams. The lower, alleged quantity would have translated into an
offense level of 32. See United States Sentencing Guidelines
(“USSG”) § 2D1.1(c)(4) (2004). For a defendant with Harvey’s
criminal history (category III), that would have resulted in a
range of 151 to 188 months. Id., Ch. 5, Pt. A (sentencing table).
Yet Harvey received a sentence of 360 months based on the larger
quantity found by the court.
Because Harvey raised this objection at sentencing, we review
his claim for harmless error. The Government bears the burden of
showing that any error was harmless beyond a reasonable doubt. The
Government does not even attempt to meet this burden. Nor could
it; following our suggestion in Hammoud, 381 F.3d at 353 & n.19,
the district court announced that it would have imposed a sentence
of 240 months if the mandatory Guidelines were not binding.
In light of the fact that the district court enhanced Harvey’s
sentence based upon facts not alleged in the indictment or found by
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the jury, the Government concedes error. We therefore vacate
Harvey’s sentence and remand the case to the district court for
resentencing. On remand the “district court shall first calculate
(after making the appropriate findings of fact) the range
prescribed by the guidelines.” Hughes, 401 F.3d at 546. The court
should then “consider that range as well as other relevant factors
set forth in the guidelines and those factors set forth in
§ 3553(a).” Id. If the court chooses to impose a sentence outside
that range, “it should explain its reason for doing so.” Id. at
546.
VI.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED.
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