UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE ANTONIO ARMSTRONG,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Terry L. Wooten, District Judge.
(CR-04-634)
Submitted: November 28, 2007 Decided: December 13, 2007
Before WILLIAMS, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Wm. Reynolds Williams, WILLCOX, BUYCK & WILLIAMS, PA, Florence,
South Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Antonio Armstrong was convicted of possession
with intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B)(2000) (Count One);
possession with intent to distribute 50 grams or more of cocaine,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2000) (Count
Two); possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(e) (2000) (Count Three); and use or
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A) (2000) (Count Four). He
was sentenced to 425 months’ imprisonment. Armstrong’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), stating that in his opinion there are no meritorious
issues for appeal, but raising as potential issues whether (1)
Armstrong received a speedy trial; (2) there is proof Armstrong
waived his Miranda rights; and (3) the Government’s notices of its
intention to use Fed. R. Evid. 404(b) evidence and to seek an
enhancement under 21 U.S.C. § 851 (2000) were timely. Armstrong
filed two pro se supplemental briefs and we grant him leave to
amend his supplemental brief. Finding no reversible error, we
affirm.
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I. Speedy Trial
Counsel’s and Armstrong’s contention that the Speedy
Trial Act was violated is without merit. Under the Speedy Trial
Act, an indictment must be filed within thirty days from the date
on which a defendant is arrested, 18 U.S.C. § 3161(b) (2000), and
the trial must commence within seventy days of the filing date of
the indictment or the date of a defendant’s initial appearance,
whichever is later. 18 U.S.C. § 3161(c)(1) (2000). Certain delays
are excludable when computing the time within which a defendant
must be indicted or his trial must commence. 18 U.S.C. §
3161(h)(1)-(9) (2000). Because Armstrong did not object under the
Speedy Trial Act, review is for plain error. See United States v.
Olano, 507 U.S. 725, 732 (1993).
Armstrong was arrested on July 30, 2004, and was indicted
on August 24, 2004, within the thirty-day period. The seventy-day
period commenced on August 24, 2004, the date the indictment was
returned. Five days are excluded for the time between Armstrong’s
counsel’s motion to withdraw, filed October 25, 2004, and the date
it was disposed of, October 30, 2004. See § 3161(h)(1)(F) (2000).
Thus, the seventieth day under the Speedy Trial Act, was November
8, 2004. The pretrial conference was held on November 2, 2004, and
the jury was impaneled on November 3, 2004, just days after new
counsel was appointed for Armstrong and before the seventy-day
period expired. Because Armstrong’s new counsel had not had
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sufficient time to prepare for trial, the district court scheduled
trial for December 6, 2004, with Armstrong’s consent. Even though
the trial began on December 6, 2004--outside the seventy-day
period--the court properly continued the trial to allow Armstrong’s
newly appointed counsel to adequately prepare. See 18 U.S.C. §
3161(h)(8)(B)(iv) (2000) (providing that a factor to consider in
determining whether to grant a trial continuance sua sponte or on
a party’s motion is whether failing to do so “would deny counsel
for the defendant or attorney for the Government the reasonable
time necessary for effective preparation.”).
To the extent Armstrong claims his Sixth Amendment right
to a speedy trial was violated, this claim is without merit. In
determining whether a pretrial delay violated a defendant’s Sixth
Amendment right, a court must balance four considerations: (1) the
length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of his right to a speedy trial; and (4) the
extent of prejudice to the defendant. Barker v. Wingo, 407 U.S.
514, 530 (1972). The Supreme Court has explained that the first
factor actually involves two inquiries. Doggett v. United States,
505 U.S. 647, 651-52 (1992). The first question is whether the
delay is sufficient to trigger a speedy trial inquiry. The Court
has answered this question affirmatively when the delay approaches
one year. Id. at 651-52 & n.1. Second, courts must consider,
together with other relevant factors, “the extent to which the
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delay stretches beyond the bare minimum needed to trigger judicial
examination of the claim.” Id. at 652.
The delay between the return of Armstrong’s indictment
and his trial was 99 days. Under the reasoning in Doggett, even
the combined delay of a little more than three months was not
sufficient to trigger examination of the remaining Barker factors.
II. Miranda
Counsel next argues that Armstrong’s statements to police
officers should not have been admitted because there is no proof
Armstrong waived his Miranda1 rights before police questioned him.
Rule 12(b)(3) of the Federal Rules of Criminal Procedure requires
motions to suppress evidence be made before trial. United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Failure to
make a motion to suppress before trial constitutes waiver unless
the trial court grants relief from the waiver under Rule 12(e) for
cause shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52
F.3d 58, 62 (4th Cir. 1995). Armstrong therefore must show cause
for his failure to file a pretrial motion to suppress. Because
Armstrong failed to raise the issue of suppression based on alleged
Miranda violations prior to or during trial and he does not allege
cause for his failure to do so, we find he has waived the issue.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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III. Rule 404(b) Evidence
Counsel next contends the Government’s notice of its
intent to introduce Rule 404(b) evidence of other crimes or acts
was untimely because Armstrong had requested a notice on
September 13, 2004, the Government knew of the evidence prior to
the indictment, and the Government did not file its notice until
November 30, 2004, just days before trial. We review a district
court’s determination of the admissibility of evidence under Rule
404(b) for abuse of discretion, applying a four-factor analysis.
United States v. Queen, 132 F.3d 991, 995, 997 (4th Cir. 1997). A
district court will not be found to have abused its discretion
unless its decision to admit evidence under Rule 404(b) was
arbitrary or irrational. United States v. Haney, 914 F.2d 602, 607
(4th Cir. 1990). In order to introduce evidence under Rule 404(b):
“the prosecution in a criminal case shall provide reasonable notice
in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.” Fed. R. Evid. 404(b).
We find the Government’s notice given a week in advance of trial
was not untimely.
Armstrong also contends in his pro se brief that the
district court erred in admitting the Rule 404(b) evidence because
it failed to identify the specific purpose for which the evidence
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was admitted.2 Rule 404(b) is an inclusive rule, allowing evidence
of other crimes or acts except that which tends to prove only
criminal propensity. Queen, 132 F.3d at 994-95; United States v.
Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). Such evidence of other
crimes or acts is admissible to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. Evidence of prior acts is admissible if the
evidence is: (1) relevant to an issue other than the general
character of the defendant, (2) necessary, (3) reliable, and (4) if
the probative value of the evidence is not substantially outweighed
by its prejudicial effect. Queen, 132 F.3d at 997.
In allowing the evidence, the district court analyzed the
criteria set forth in Queen and found the evidence had probative
value, was reliable, and was not unfairly prejudicial. The court
noted the evidence was “offered to show motive, intent, I presume
plan, common plan and knowledge of the drugs,” and gave the jury an
appropriate limiting instruction. We find the record shows the
district court adequately identified the purposes for which the
Rule 404(b) evidence was admitted.
2
Armstrong does not argue that the evidence itself was
inadmissible, only that the district court did not state the
specific purpose for which the evidence was admitted.
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IV. Timeliness of § 851 Notice
Counsel’s final argument is that the Government’s 21
U.S.C. § 851 (2000) notice was untimely. To seek enhanced
penalties under 21 U.S.C. § 841(b)(1)(A), the Government must file
an information giving its notice to seek such penalties prior to
trial or the entry of a plea. See 21 U.S.C. § 851. The purpose of
§ 851 is to provide pretrial notice to a defendant that he faces an
increased punishment if convicted of a qualifying offense so he has
the opportunity to contest the accuracy of the information and
sufficient time to understand the full consequences of a guilty
plea or verdict. United States v. Williams, 59 F.3d 1180, 1185
(11th Cir. 1995). Here, the Government filed its notice on
November 3, 2004, the day the jury was impaneled and one month
before the trial. We find the notice was timely. See United
States v. Beasley, 495 F.3d 142, 148-50 (4th Cir. 2007), petition
for cert. filed, 76 U.S.L.W. 3226 (U.S. Oct. 23, 2007)(No. 07-548).
V. Confrontation Rights
Armstrong argues in his pro se supplemental brief that
the district court erred in allowing the Government to present
testimony about information received from a confidential informant,
in violation of his Sixth Amendment confrontation rights as
articulated in Crawford v. Washington, 541 U.S. 36 (2004).
Armstrong did not object to the testimony concerning the informant
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at trial, therefore we review for plain error. See Olano, 507 U.S.
at 732-34. We may notice an error that was not preserved by timely
objection only if the defendant can demonstrate: (1) an error
occurred, (2) the error was plain, and (3) the error was material
or affected the defendant’s substantial rights. Id. at 732-37.
Even if the threshold requirements are satisfied, we retain
discretion whether to correct the error, which should be exercised
only if the “error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Id. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Under Crawford, the Sixth Amendment requires a witness be
unavailable and that there be a prior opportunity for
cross-examination before testimonial hearsay evidence may be
admitted, regardless of the inherent trustworthiness of the
statement. Crawford, 541 U.S. at 68. Crawford applies only to
testimonial hearsay statements. Id. “[A]n out of court statement
is not hearsay if it is offered for the limited purpose of
explaining why a government investigation was undertaken.” United
States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (citations
omitted).
Armstrong challenges the testimony of an investigating
officer as to what prompted the investigation of Armstrong’s drug
offenses. We find the testimony concerning the informant was
introduced for the limited purpose of explaining the course of the
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police investigation and thus was not a testimonial hearsay
statement to which Crawford applies. See Love, 767 F.2d at 1063.
Therefore, Armstrong’s claim must fail.
VI. § 924(c) Conviction
Armstrong argues that his conviction for possession of a
firearm in furtherance of a drug trafficking crime was invalid
because there was insufficient evidence to show that the guns were
used for drug trafficking. To establish a violation of 18 U.S.C.
§ 924(c), the Government must prove that the firearm “furthered,
advanced, or helped forward a drug trafficking crime.” United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Factors that
might lead a reasonable trier of fact to conclude that the
requisite nexus existed between the firearm and the drug offense
include: “‘the type of drug activity that is being conducted,
accessibility of the firearm, the type of weapon . . . , whether
the gun is loaded, proximity to drugs or drug profits, and the time
and circumstances under which the gun is found.’” Id. (quoting
United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.
2000)). Ultimately, the jury verdict “must be sustained if there
is substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). “[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support
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a conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)(en banc).
In this case, the firearms were discovered in a suitcase
with a significant quantity of cocaine and clothes belonging to
Armstrong in a motel room he had rented. Armstrong admitted to
officers that the suitcase was his and his fingerprints would be on
the firearms. We find there was sufficient evidence for a jury to
reasonably find Armstrong guilty of violating § 924(c). See United
States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003) (“When guns and
drugs are found together and a defendant has been convicted of
possession with intent to distribute, the gun whether kept for
protection from robbery of drug-sale proceeds, or to enforce
payments for drugs, may reasonably be considered to be possessed
‘in furtherance of’ an ongoing drug-trafficking crime.”).
VII. Career Offender Sentence
Armstrong argues the district court erred in sentencing
him as a career offender because two of the predicate offenses were
related and should count as one conviction. In order for Armstrong
to be designated a career offender, the Government had to establish
(1) that he was at least 18 years old at the time of the instant
offense, (2) that the instant offense is a felony that is either a
“crime of violence” or a “controlled substance offense,” and
(3) that he had at least two prior felony convictions for either a
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“crime of violence” or a “controlled substance offense.” USSG
§ 4B1.1(a); United States v. Harp, 406 F.3d 242, 245 (4th Cir.
2005). A controlled substance offense is “an offense under federal
or state law, punishable by imprisonment for a term exceeding one
year, that prohibits the . . . distribution, or dispensing of a
controlled substance . . . or the possession of a controlled
substance . . . with intent to manufacture, import, export,
distribute, or dispense.” USSG § 4B1.2(b).
We find Armstrong’s sentence as a career offender was
proper because, even if the prior convictions Armstrong contends
are related do in fact constitute one criminal episode and thus one
predicate offense, Armstrong still has two other predicate offenses
that would qualify him as a career offender, both of which were
included in the Government’s § 851 notice.
We find Armstrong’s remaining pro se claims meritless.
Pursuant to Anders, we have examined the entire record and find no
meritorious issues for appeal. Accordingly, we grant Armstrong’s
motions to amend his pro se brief and affirm Armstrong’s
convictions and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client 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
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a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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