UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4439
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JACK EARL BEST,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-02-243)
Argued: October 24, 2006 Decided: January 17, 2007
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Douglas Everette Kingsbery, THARRINGTON, SMITH, L.L.P.,
Raleigh, North Carolina, for Appellant. Anne Margaret Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank
D. Whitney, United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jack Earl Best appeals his convictions and life sentence
for various drug-trafficking crimes. Best, who represented himself
during a portion of his trial and at sentencing, contends that he
is entitled to a new trial because the district court failed to
suppress certain evidence and because of restrictions the court
placed on his ability to cross-examine witnesses. Best further
contends that the government’s refusal to move for a downward
departure at sentencing was based on an unconstitutional motive.
Because Best’s arguments are unpersuasive, we affirm his
convictions and sentence.
I.
In a superceding indictment filed on August 4, 2004, Best
was charged with four drug-related offenses: conspiring to
distribute and possess with intent to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. § 846; distributing
cocaine in violation of 21 U.S.C. § 841(a)(1); possessing with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a);
and maintaining a place for the purposes of manufacturing and
distributing cocaine in violation of 21 U.S.C. § 856. These
charges stemmed from a controlled buy that a confidential informant
for the Sheriff’s Department of Wayne County, North Carolina, made
from Best at his home on April 4, 2002. The informant, Derwin
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Wallace, bought a half kilogram of cocaine from Best using $14,000
provided to him by the police. Shortly after the sale, law
enforcement agents obtained and executed a search warrant for
Best’s house, yielding 87 grams of cocaine and $51,000 in cash.
While the search was in progress, Special Agent John Rea of the
North Carolina State Bureau of Investigation spoke with Best,
encouraging him to cooperate with the police. Rea had known Best
for 15 years as a result of other investigations and told Best that
if he cooperated, the officers would inform the state or federal
prosecutor of his assistance, and the prosecutor would then relay
that information to the sentencing judge. Best agreed to assist
the police and began by telling them where they could find the
cocaine and $37,640 in cash that was hidden throughout his house.
Although Best did not tell the officers about the $14,000 that he
had just received from the controlled buy, the police found this
money as well.
To prevent Best’s suppliers from being made aware of his
cooperation, the police decided not to arrest him immediately after
concluding the search and instead asked him to drive down to the
police station to be interviewed. A short time later at the
station, Best identified his suppliers, brothers whom he knew only
as Sal and Louie, and gave details about the quantity and frequency
of his cocaine purchases from each. Based on this information, the
police instructed Best to contact both suppliers and arrange for
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controlled buys. Best set up controlled buys to take place a few
days later on April 9, 2002. The buys went as planned and both
men, whose real names are Nicandro and Flavio Alvarez, were
arrested, prosecuted and sentenced. Following the Alvarez arrests,
police met once more with Best and encouraged him to set up
additional controlled buys with other suppliers. Rather than
continue cooperating, Best stopped communicating with police and
fled North Carolina. Best’s family members were unable to tell
police where he had gone. These circumstances prompted the
authorities to obtain a federal indictment against Best on
September 17, 2002, and a bench warrant was issued for his arrest.
On August 13, 2003, Best was arrested in Maryland and
returned to North Carolina. According to Best’s former lawyer, the
government, during plea negotiations, offered to make a substantial
assistance motion for a downward departure at Best’s sentencing if
he agreed to plead guilty. Best declined to make any such
agreement even after being informed that if he went to trial, the
government planned to introduce the incriminating information he
had provided during his initial debriefing as well as the testimony
of his former suppliers, the Alvarez brothers. Although Best moved
to suppress his statements and all evidence which flowed from them,
the district court adopted the magistrate judge’s recommendation
that this motion be denied. Notwithstanding this adverse ruling,
Best chose to go to trial. Shortly before the trial began, the
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government filed a notice of intent to seek enhanced penalties
pursuant to 21 U.S.C. § 851, given Best’s three prior drug
felonies.
On the second day of his trial, Best asked for permission
to represent himself for the remainder of the proceedings. At this
point, three government witnesses had already testified and been
cross-examined. In the process of advising Best of his right to
represent himself as well as the potential pitfalls of doing so,
the district court stated, “You know that you cannot ask leading
questions and you can only ask questions of what they’ve already
testified about. You cannot cross certain lines; that is ask about
criminal records that are more than 10 years old as an example and
things like that.” J.A. 290. Best responded, “Yes, I know that.”
Id. After a thorough inquiry, the district court accorded Best his
right to proceed pro se. The court also appointed Best’s lawyer as
standby counsel and told Best that he could confer with the lawyer
during the remainder of the trial. Best chose to have the lawyer
sit with him at counsel table.
Best was convicted on all four counts and sentenced on
April 5, 2005. At the sentencing hearing, it was agreed that
absent a substantial assistance motion pursuant to 18 U.S.C.
§ 3553(e), the district court would be required, under 21 U.S.C.
§§ 841(b)(1)(A) and 851, to impose mandatory minimum sentences of
life imprisonment (count 1), 360 months (counts 2 and 3) and 240
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months (count 4). Although the prosecutor reminded the court of
Best’s role in obtaining the arrests of the Alvarez brothers, he
also stated that the government would not be making a substantial
assistance motion. While Best, who was representing himself,
objected to the government’s decision not to request a downward
departure, the district court noted that only the government could
decide if his cooperation warranted a substantial assistance
motion. After Best was given an opportunity to state any reasons
supporting a downward departure, the district court sentenced him
to life imprisonment for count 1, 360 months for counts 2 and 3,
and 240 months for count 4, all to be served concurrently.
Best appeals his convictions and sentence.
II.
Best contends that the district court erred in allowing
the government to introduce into evidence information that he
volunteered during his April 4, 2002, interview at the police
station regarding his suppliers and his dealings with them. The
prosecution used Best’s statements to prove his participation in
the drug conspiracy charged in count 1 as well as the allegations
of drug amounts involved in the several counts. Best asserts for
the first time on appeal that the police had made an implied
promise that the information he volunteered in the process of his
cooperation would not be used against him. Essentially, Best
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claims that he had impliedly been given use immunity in return for
his cooperation.
Rule 12(b)(3) of the Federal Rules of Criminal Procedure
requires that motions to suppress evidence be filed prior to trial.
Best’s only pretrial motion objecting to the introduction of this
evidence was made under the theory that his statements had been
coerced and that police had disregarded the procedural safeguards
guaranteed to him by Miranda v. Arizona, 384 U.S. 436 (1966). The
district court denied this motion. After failing at the pretrial
stage to have his statements suppressed by arguing coercion and
Miranda violations, Best now argues to us that his statements were
voluntary but should have been excluded nevertheless on the theory
of use immunity. But Best made no pretrial motion to suppress on
this basis. Under Rule 12(e) failure to make a pretrial motion to
suppress “constitutes waiver of the defense or objection unless the
defendant can demonstrate just cause for the failure.” United
States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995). Best has made no
attempt to demonstrate cause, and we therefore conclude that he has
waived this assignment of error.
III.
Best next attacks his conviction by arguing that the
district court erred when it instructed him that, in representing
himself, he could not ask leading questions of government witnesses
7
or inquire about subjects they had not been questioned about on
direct examination. Because Best raised no objection to this
instruction below, we review this claim for plain error. United
States v. Olano, 507 U.S. 725, 731 (1993) (reiterating that plain
error affecting substantial rights may be noticed).
A review of the trial transcript shows that Best inquired
about subjects not addressed on direct examination and asked each
witness leading questions. Moreover, Best has not established any
prejudice flowing from the district court’s unheeded restrictions
because he has not mentioned any subjects he was precluded from
exploring on cross-examination. Because any error here did not
affect Best’s substantial rights, we reject this argument.
IV.
Best also contests his sentencing, asserting that the
district court erred in refusing to compel the government to move
for a downward departure for substantial assistance pursuant to 18
U.S.C. § 3553(e). That subsection, entitled “Limited authority to
impose a sentence below a statutory minimum,” reads in full:
Upon motion of the Government, the court shall have the
authority to impose a sentence below a level established
by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation
or prosecution of another person who has committed an
offense. Such sentence shall be imposed in accordance
with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title
28, United States Code.
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18 U.S.C. § 3553(e). Best contends: (1) that the government had
agreed to make a substantial assistance motion and that the
district court should have required the government to honor this
agreement; (2) that the district court erred in depriving him of
the opportunity to prove that the government had made such an
agreement; and (3) that the government’s refusal to file the motion
was based on an unconstitutional motive. We examine each
contention in turn.
A.
Best claims that the district court improperly
disregarded an agreement made by the government to make a
substantial assistance motion. To support his claim, Best points
to testimony given by Officer Rea at trial wherein Rea recounted
telling Best that if he cooperated, law enforcement officers would
tell state or federal prosecutors of his cooperation, and these
prosecutors would in turn inform the sentencing judge. Best does
not claim that he had a sentencing agreement with federal
prosecutors, the only officials who have “a power, not a duty, to
file a motion when a defendant has substantially assisted.” Wade
v. United States, 504 U.S. 181, 185 (1992). Because § 3553(e)
entrusts wide discretion to federal prosecutors in deciding whether
to make a substantial assistance motion, and no agreement was
established here that would constrain this discretion, the district
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court did not err in refusing to compel the government to make the
motion.
B.
Best’s contention that the district court prevented him
from proving the government’s agreement to make a substantial
assistance motion is equally unavailing. The portion of the
sentencing transcript that Best cites in support of his claim that
the district court would not “permit [him] to make any further
showing on whether the government was contractually bound” to make
a motion deals only with Best’s repeated claim that the government
promised that he would not be prosecuted at all. Appellant’s Br.
at 17-18 (citing J.A. 550). The district court appropriately
declined to allow Best to continue contesting at his sentencing
hearing the basic fact that he had been charged and convicted.
Later in the hearing, the district court asked Best if he had any
basis for a downward departure that he wished to place before the
court. Best then recounted his role in the drug busts of the
Alvarez brothers and stated that he felt he deserved a downward
departure. No limitations were placed on Best’s ability to present
additional arguments or other evidence. As a result, this claim
also fails.
C.
Finally, Best argues that the government’s refusal to
file a substantial assistance motion was based on an
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unconstitutional motive, namely to retaliate against him for
exercising his right to a trial by jury. Because this claim is
raised for the first time on appeal, we review for plain error the
district court’s decision to refuse to compel the motion. Olano,
507 U.S. at 731.
Although § 3553(e) accords the government the power to
decide whether to file a substantial assistance motion, the Supreme
Court in Wade v. United States established “that a prosecutor’s
discretion when exercising that power is subject to constitutional
limitations that district courts can enforce.” 504 U.S. at 185.
Wade held that “federal district courts have authority to review a
prosecutor’s refusal to file a substantial assistance motion and to
grant a remedy if they find that the refusal was based on an
unconstitutional motive.” Id. at 185-86. A “refusal to move [that]
was not rationally related to a legitimate Government end” or a
refusal based on the defendant’s race or religion were given as
examples of unconstitutional motive that would entitle the
defendant to relief. Id. at 186-87. However, before a court may
order any relief, including discovery or an evidentiary hearing,
the defendant must make a “substantial threshold showing.” Id. at
186. This threshold requirement is not satisfied by claims “that
a defendant provided substantial assistance” nor by “generalized
allegations of improper motive.” Id.
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The Third Circuit has recognized that the government’s
refusal to make a substantial assistance motion in retaliation for
the defendant’s exercise of his trial right constitutes an
unconstitutional motive under Wade. See United States v. Paramo,
998 F.2d 1212, 1219 (3d Cir. 1993). We do not reach that
circumstance today because Best is unable to make the required
threshold showing of impropriety. Best argues that the
unconstitutional motivation of the government was revealed at the
sentencing hearing when the district court asked the prosecutor if
he wished to make a statement on the record as to Mr. Best’s
cooperation. The Assistant U.S. Attorney began by recounting
Best’s role in setting up the Alvarez brothers. The AUSA continued
by stating that:
[T]he defendant subsequently broke off all communications
with law enforcement agents and I would submit to the
Court was a fugitive for approximately a year before
being apprehended in Maryland by a state trooper up
there. I would submit to the Court furthermore that by
the defendant denying any guilt in this case by requiring
the government to go to trial, which he has that right to
do, has not accepted responsibility and therefore should
not qualify under 5K1 for a motion for substantial
assistance based on the totality of the evidence as
received by this Court.
J.A. 555. Best correctly points out that the AUSA made a
misstatement when he asserted that Best did not qualify for a
downward departure under the Sentencing Guidelines pursuant to
§ 5K1.1 because he had not “accepted responsibility” by pleading
guilty. Application Note 2 to § 5K1.1 makes clear that:
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The sentencing reduction for assistance to authorities
shall be considered independently of any reduction for
acceptance of responsibility. Substantial assistance is
directed to the investigation and prosecution of criminal
activities by persons other than the defendant, while
acceptance of responsibility is directed to the
defendant’s affirmative recognition of responsibility for
his own conduct.
18 U.S.S.G. § 5K1.1, Application Note 2. We do not find the
prosecutor’s misstatement to be material. First, for sake of
clarity, we note that motions pursuant to § 5K1.1 are not
interchangeable with motions pursuant to § 3553(e). See Melendez
v. United States, 518 U.S. 120, 130-31 (1996). A substantial
assistance motion pursuant to § 5K1.1 asks the district court to
consider sentencing the defendant below the advisory Guidelines
range, while only a motion made by the government under § 3553(e)
authorizes the district court to impose a sentence below a
statutory minimum. In this case Best’s sentencing was driven by
statutorily mandated minimums. Still, even assuming that the
Sentencing Commission intended the Application Notes to § 5K1.1 to
govern substantial assistance motions under both the Guidelines and
statutory minimums, see 28 U.S.C. § 994(n), Best cannot make a
threshold showing of unconstitutional motive based on the
prosecutor’s statement at sentencing. In responding to the
district court’s question about Best’s degree of cooperation, the
prosecutor highlighted the fact that after setting up the Alvarez
brothers, Best “subsequently broke off all communications with law
enforcement agents and . . . was a fugitive for approximately one
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year before being apprehended.” J.A. 555. After the Alvarez
brothers were arrested, the police asked Best to continue setting
up other dealers. Rather than continue providing assistance, Best
fled. Refusing to make a substantial assistance motion for a
partially cooperative former fugitive is well within the
government’s legitimate discretion.
Best nonetheless argues that the record shows that his
flight was not the government’s true reason for refusing to move
for a downward departure. He relies on the representation of his
standby counsel at sentencing that in pretrial negotiations Best
had been offered a substantial assistance motion on the condition
that he plead guilty. It is well established that “[a] guilty plea
may justify leniency.” Brady v. United States, 397 U.S. 742, 752
(1970). On the other hand, the Supreme Court has condoned “the
prosecutorial practice of threatening a defendant with increased
charges if he does not plead guilty, and following through on that
threat if the defendant insists on his right to stand trial.” Ala.
v. Smith, 490 U.S. 794, 802 (1989) (citing Bordenkircher v. Hayes,
434 U.S. 357, 363 (1978)). Given the pressure that the prosecutor
may legitimately apply “at the bargaining table [] to persuade the
defendant to forgo his right to plead not guilty,” Bordenkircher,
434 U.S. at 364, Best cannot impugn the government’s motivation
simply by pointing to the prosecutor’s reference to a potential
substantial assistance motion in connection with plea discussions.
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Best has not made the “substantial threshold showing”
that would allow him to proceed with his claim of unconstitutional
motive. Again, the district court did not commit error in refusing
to compel a substantial assistance motion.
* * *
Best’s convictions and sentence are
AFFIRMED.
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