UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE K. SMITH, a/k/a Smitty,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:04-cr-01046-DCN)
Submitted: November 21, 2007 Decided: January 9, 2008
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Capers G. Barr, III, BARR, UNGER, & MCINTOSH, LLC, Charleston,
South Carolina, for Appellant. Robert Hayden Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Jermaine K. Smith of conspiracy to
possess and distribute 50 grams or more of cocaine base and 5
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841, 846
(2000); four counts of possession with intent to distribute and
distribution of cocaine base, in violation of 21 U.S.C. § 841; and
two counts of unlawful use of communication facilities in causing
and facilitating conspiracy to possess with intent to distribute
and distribution of cocaine base and cocaine, in violation of 21
U.S.C. § 843(b) (2000). He was sentenced to 240 months’
imprisonment. Smith appeals his conviction. Finding no reversible
error, we affirm.
Counsel has filed a brief and supplemental brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
concluding there are no meritorious issues for appeal, but
questioning whether: (1) the district court erred in admitting
evidence under Fed. R. Evid. 404(b); (2) the district court erred
in admitting hearsay statements of co-conspirators; (3) the
district court erred in instructing the jury that a single act may
be sufficient to draw a defendant within the scope of a conspiracy;
(4) the district court erred in admitting redacted proffer
statements of a non-testifying co-defendant; (5) Smith was
illegally arrested without a warrant; (6) Smith’s convictions were
illegal because some of his co-defendants were permitted to plead
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guilty to lesser charges; (7) Smith’s convictions were illegal
because they were based on evidence of intercepted telephone calls
and testimony of co-defendants; and (8) Smith’s convictions were
illegal because of improprieties before the grand jury. Smith has
submitted a pro se supplemental brief. The Government has elected
not to file a responsive brief.
I. Admission of Fed. R. Evid. 404(b) Evidence
Counsel first questions whether admission of evidence
under Federal Rule of Evidence 404(b) was proper. We review a
district court’s determination of the admissibility of evidence
under 404(b) for abuse of discretion. See United States v. Queen,
132 F.3d 991, 995 (4th Cir. 1997). Evidence of other crimes is not
admissible to prove bad character or criminal propensity. Fed. R.
Evid. 404(b). Such evidence is admissible, however, to prove
“motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b); see Queen, 132 F.3d at 994. Rule 404(b) is an inclusive
rule, allowing evidence of other crimes or acts except that which
tends to prove only criminal disposition. See Queen, 132 F.3d at
994-95; United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.
1988).
Evidence of prior acts is admissible under Rules 404(b)
and 403 if the evidence is: (1) relevant to an issue other than the
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general character of the defendant, (2) necessary, and (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. A limiting jury instruction explaining the purpose
for admitting evidence of prior acts and advance notice of the
intent to introduce evidence of prior acts provide additional
protection to defendants. Id.
The Government filed a notice of intent to use evidence
pursuant to Rule 404(b). The evidence was necessary to prove
intent, plan, knowledge, and absence of mistake on Smith’s part in
participating in the conspiracy. Smith was not unfairly prejudiced
because the convictions involved the same type of drug and the
conduct occurred during the same time period and at the same
location as the offenses charged in the indictment. See United
States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995) (holding there is
no unfair prejudice when the prior act is no more sensational or
disturbing than the crimes with which the defendant was charged).
The district court conducted a balancing analysis under Fed. R.
Evid. 403 and gave the jury a limiting instruction. We conclude
the district court did not abuse its discretion in admitting the
prior acts evidence.
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II. Admission of statements of co-conspirators
Counsel questions whether the district court erred in
admitting testimony of a co-conspirator, Steven Dantzler,
concerning conversations between him and Smith, and him and other
co-conspirators. The court reviews evidentiary rulings under Fed.
R. Evid. 801(d)(2)(E) for an abuse of discretion. See United
States v. Blevins, 960 F.2d 1252, 1255-56 (4th Cir. 1992). A
statement is not hearsay if it is offered against the defendant and
is a statement by a co-conspirator of the defendant during the
course of and in furtherance of the conspiracy. Fed. R. Evid.
801(d)(2)(E). We find Dantzler’s testimony was not hearsay because
the statements were made by co-conspirators under Rule
801(d)(2)(E).
III. Jury Instruction
Counsel asserts the district court erred in instructing
the jury that “even a single act may be sufficient to draw a
defendant within the scope of the conspiracy.” The content of a
jury instruction is reviewed for an abuse of discretion. See
United States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995). “[A
defendant] may become a member of the conspiracy without full
knowledge of all of its details, but if he joins the conspiracy
with an understanding of the unlawful nature thereof and willfully
joins in the plan on one occasion, it is sufficient to convict him
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of conspiracy, even though he had not participated before and even
though he played only a minor part.” United States v. Roberts, 881
F.2d 95, 101 (4th Cir. 1989) (emphasis added). We find the court
did not abuse its discretion in its instruction to the jury that a
single act can be enough to establish a defendant was part of the
conspiracy.
IV. Admission of Non-Testifying Co-Defendant’s Statements
Counsel next questions whether the admission of a non-
testifying co-defendant’s proffer statements would violate Smith’s
right of confrontation under Bruton v. United States, 391 U.S. 123
(1968). Under Bruton, admission of a statement of a nontestifying
co-defendant is prohibited “if it could be fairly understood to
incriminate the accused.” United States v. Campbell, 935 F.2d 39,
43 (4th Cir. 1991). However, if the statement is redacted to
eliminate any reference to the defendant, the statement is
admissible. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).
Here, all identification of Smith was redacted from the
proffer statement evidence and it could not be fairly understood to
incriminate Smith. We conclude the district court did not abuse
its discretion in allowing evidence of the redacted proffer
statements.
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V. Warrantless Arrest
The grand jury indicted Smith, a warrant for his arrest
was issued the same day, and he was arrested and arraigned days
later. Thus, his arrest was not warrantless and any such claim is
without merit.
VI. Selective Prosecution
Counsel asserts and Smith reasserts in his pro se brief
that Smith’s convictions were illegal based on selective
prosecution because some of his co-defendants were allowed to plead
guilty to lesser charges. So long as there is probable cause to
believe the accused committed a criminal offense, the decision to
prosecute is within the prosecutor’s discretion as long as it is
not tainted by an unconstitutional motive. See United States v.
Armstrong, 517 U.S. 456, 464 (1996). Because there is a
presumption the prosecutor used his discretion appropriately, the
defendant must present clear evidence to the contrary. Id. at
464-65. We find no clear evidence in the record of disparate
treatment of Smith in relation to the charges against him or his
convictions.
VII. Remaining Anders and Pro Se Claims
We find no support in the record for the challenge to
Smith’s convictions on the grounds that they were based on
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intercepted telephone calls and testimony of co-defendants nor his
claim of improprieties before the grand jury.
Smith argues in his pro se supplemental brief that the
district court erred in denying his co-defendants Horace Campbell’s
and Joseph Campbell’s motion to suppress evidence elicited from
wiretaps. We find this claim meritless. The claim was raised by
the Campbells in their direct appeal and this court found the
motions to suppress were properly denied. See United States v.
Campbell, 2007 WL 1600494, *1 (4th Cir. June 4, 2007)
(unpublished).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. 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 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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