UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5085
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
O’BENSON SESERE, a/k/a O.B., a/k/a Obenson Sesere,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:06-cr-00041-gec-10)
Argued: December 7, 2010 Decided: February 7, 2011
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Jeb Thomas Terrien, OFFICE OF
THE UNITED STATES ATTORNEY, Harrisonburg, Virginia, for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant O’Benson Sesere seeks relief from his convictions
and sentence in the Western District of Virginia on four drug
offenses involving cocaine base (“crack cocaine” or “crack”).
At the conclusion of a jury trial in Harrisonburg, Sesere was
convicted of conspiracy to distribute cocaine base (21 U.S.C.
§ 846), plus three separate distribution offenses (21 U.S.C.
§ 841(a)). On appeal, he pursues three contentions of error:
(1) that the court erred in denying judgment of acquittal on one
of the distribution offenses (the “Sufficiency Issue”); (2) that
the court erroneously permitted the prosecutors to bolster the
credibility of two of their witnesses (the “Bolstering Issue”);
and (3) that the court erred in its drug quantity finding at
sentencing (the “Sentencing Issue”). As explained below, we
reject each of these contentions and affirm.
I.
A.
On September 6, 2006, Sesere and eleven codefendants were
charged in a multi-count indictment. 1 Specifically, Sesere was
1
Because we are reviewing for sufficiency of the evidence,
we must view the evidence in “the light most favorable to the
Government.” See United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005). This factual recitation is set forth in that
light.
2
charged with conspiracy to distribute fifty grams or more of
crack cocaine (Count One), plus seven counts of distribution and
possession with intent to distribute (Counts Twenty-One through
Twenty-Seven). Four of the distribution charges were
subsequently dismissed by the United States Attorney, and Sesere
was tried and convicted in August 2009 on the four remaining
offenses, that is, Counts One, Twenty-One, Twenty-Two, and
Twenty-Four. 2
B.
The trial evidence reflected that, from 2004 to 2006, the
Northwest Virginia Regional Drug Task Force was involved in an
extensive investigation of crack and powder cocaine distribution
in the Winchester, Virginia area. The focus of the
investigation was an area of Winchester known as “the Block,”
which apparently served as an open-air drug market. At Sesere’s
trial, the prosecution presented multiple witnesses and
established that Sesere was a street-level crack dealer on the
Block, and that he also worked with other drug dealers to
provide security for illicit drug businesses and to obtain
2
On the basis of his four convictions, Sesere faced a
statutory maximum of life plus eighty years in prison. See 21
U.S.C. §§ 841(b)(1)(A) (Count One: not less than ten years or
more than life); 841(b)(1)(B) (Count Twenty-Two: not less than
five years or more than forty); 841(b)(1)(C) (Counts Twenty-One
and Twenty-Four: not more than twenty years).
3
substantial quantities of crack for distribution. This evidence
provided the proof underlying Sesere’s conspiracy conviction on
Count One, and the sufficiency of that evidence is not
contested.
Along with Count One, Sesere was convicted on three
substantive drug offenses — Counts Twenty-One, Twenty-Two, and
Twenty-Four. Count Twenty-One was a distribution offense that
stemmed from a “controlled buy” made by the Task Force on the
Block on January 11, 2006, when a cooperating informant
purchased approximately .9 grams of crack from Sesere. Count
Twenty-Two — a possession with intent to distribute offense —
arose from a series of events that occurred the very next day,
January 12, 2006, when the Task Force executed a search warrant
at the Winchester apartment of Sesere’s girlfriend, Tiffany
Sloane. From the apartment (hidden under a sofa), the officers
seized a pill bottle containing approximately 24.3 grams of
crack cocaine, and Sesere later admitted to Sloane that the
crack in the bottle belonged to him.
The substantive offense of most significance in this appeal
is Count Twenty-Four, which stemmed from an incident on February
18, 2006, when an undercover officer on the Block paid $50 in
cash to Sesere for a small quantity of an off-white substance.
Immediately after this transaction, several other officers
sought to apprehend Sesere, who fled on foot in an effort to
4
escape. As Sesere ran from his pursuers, he tried to elude them
by scaling a residential fence in a backyard. The pursuing
officers caught up with Sesere, however, and ordered him off the
fence and onto the ground. Sesere complied with their
instructions and was apprehended. A K-9 unit thereafter
searched the yard of the residence beyond the fence, and found
an empty cigar tube and four pieces of crack cocaine, weighing
in the aggregate approximately one-third of a gram. Three of
the four pieces of crack were found on the grass just beyond the
fence, and the fourth was found on an outdoor table. The pieces
of crack found on the grass were about three to four feet from
the fence, and the table was about the same distance from the
fence. Task Force Officer Swartz testified that the locations
where the pieces of crack were found, particularly those lying
on the grass, indicated that all four pieces had been recently
thrown over the residential fence that Sesere had attempted to
scale in his escape effort. 3
3
Because the substance that Sesere sold the undercover
officer on February 18, 2006, was neither crack cocaine nor any
other controlled substance, Count Twenty-Four was tried as a
possession with intent to distribute offense, on the premise
that Sesere had possession of the pieces of crack found beyond
the fence with the intent to distribute them. The Sufficiency
Issue relates solely to Count Twenty-Four.
5
C.
On the Bolstering Issue — the sole appellate contention
that relates to all of Sesere’s convictions — there are two
pertinent prosecution witnesses, Celeste Joseph and Tiffany
Sloane. Joseph was a drug dealer who had operated on the Block
and Sloane was Sesere’s girlfriend. Joseph and Sloane were also
convicted codefendants of Sesere, and they had agreed to testify
against him. An exchange between the prosecutor and Joseph on
direct examination — emphasized by Sesere in this appeal — went
as follows:
[Prosecutor]: [You have been convicted] of conspiracy
to distribute 50 grams or more of crack cocaine[?]
[Joseph]: Yes.
* * *
Q: Do you have any other convictions for felonies,
any offenses punishable by more than a year in jail?
[Joseph]: No.
[Defense Counsel]: I object . . . .
J.A. 438. 4 After making his objection, Sesere’s lawyer asserted
to the court that the prosecutor was improperly questioning
Joseph, and argued that making such inquiries on direct
examination constituted “improperly vouching” for the witness.
4
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
6
Id. at 438-39. The court overruled the objection, however,
explaining that no improper questioning had occurred because the
prosecutor had simply asked Joseph about his “objective record,”
as opposed to whether he had “ever been in trouble.” Id. at
439.
A similar exchange occurred between the prosecutor and
Sloane when she was on direct examination. When the prosecutor
asked Sloane if she had ever been convicted of a felony, she
replied “yes.” J.A. 464. Sloane then explained that she had
been convicted of a drug conspiracy offense and had served
prison time. The prosecutor also asked Sloane if she had been
convicted of any other felonies or a “misdemeanor for moral
turpitude; lying, cheating or stealing.” Id. Sloane replied
“no” and Sesere’s lawyer unsuccessfully renewed the objection he
had interposed during Joseph’s testimony. Id.
D.
On August 19, 2009, the jury returned a guilty verdict
against Sesere on all four offenses. Sesere thereafter filed
motions for judgment of acquittal and a new trial, pursuant to
Federal Rules of Criminal Procedure 29 and 33. 5 More
5
Rule 29 provides that, at both the close of the evidence
and after the jury returns its verdict, the court may consider
whether the evidence is sufficient to sustain a conviction.
Rule 33 provides that the court may grant a new trial in the
proper circumstances.
7
specifically, Sesere sought judgment of acquittal on Count
Twenty-Four, arguing that the evidence against him was
insufficient as a matter of law. By its Memorandum Opinion of
October 9, 2009, the district court denied Sesere’s motions,
explaining that there was sufficient evidence to support all the
convictions. See United States v. Sesere, No. 5:06-cr-00041,
(W.D. Va. Oct. 9, 2009) (the “Opinion”). 6 On Count Twenty-Four,
the court explained that, “[b]ecause there was substantial
evidence for the jury to find Sesere guilty beyond a reasonable
doubt as to Count Twenty-Four, the court will deny the
defendant’s motion.” Id. at 8. 7
Sesere’s presentence report (the “PSR”) recommended that
Sesere be attributed a total of 1,132 grams of crack cocaine —
for a base offense level of 34 under the 2008 Guidelines — and
that the court apply an advisory Guidelines range of 168 to 210
months. Sesere appeared for sentencing on November 12, 2009,
and his lawyer objected to the quantity of crack being
6
The Opinion can be found at J.A. 559-66.
7
In its Count Twenty-Four sufficiency analysis, the
district court emphasized the testimony of two witnesses. See
Opinion 7-8. Officer Swartz established that the person who
attempted to flee over the fence was Sesere and that at least
$400 in cash was recovered from him. Swartz also said that the
table on which the crack was found was no more than three to
four feet from the fence. Officer Spaid observed crack lying on
the ground and on the table.
8
attributed to him in the PSR. Sesere argued that the only
evidence on drug quantity had been presented at trial by Joseph,
and that the evidence supported the proposition that Sesere had
possessed only ten to fifteen ounces (or approximately 280 to
420 grams) of crack. 8 The prosecutor responded to the drug
quantity objection by asserting that the trial record provided
ample support for the proposition that Sesere was responsible
for the quantity of crack (1,132 grams) attributed to him in the
PSR. The prosecutor asserted that, on the evidence of several
trial witnesses, including Sloane, Sesere had “a few times” made
profits of over $2000 in a single day, and even up to $5000 on a
really good day. J.A. 471. 9
After considering the drug quantity issue and the relevant
evidence, the sentencing court overruled Sesere’s objection and
attributed to him at least 500 grams of crack cocaine, the
threshold quantity necessary for a base offense level of 34. In
8
Pursuant to section 2D1.1(c)(3) of the Guidelines, the
possession of at least 500 grams but less than 1.5 kilograms of
crack warrants a base offense level of 34. If Sesere had been
attributed a quantity of crack of at least 150 but less than 500
grams, the provisions of section 2D1.1(c)(4) would have applied,
yielding a base offense level of 32. Pursuant to a base offense
level of 32 and a criminal history category of II (as determined
by the PSR), Sesere’s advisory Guidelines range would have been
reduced to 135 to 168 months, rather than 168 to 210 months.
9
The trial evidence was that an ounce (28.3 grams) of
crack typically sold on the Block for $900 to $1500.
9
so ruling, the court concluded that Sesere “certainly understood
that the endeavor, the collaboration between the group [Sesere
and his coconspirators], was responsible for at least 500 grams
of crack cocaine.” J.A. 592.
Sesere thereafter filed a timely notice of appeal, and we
possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.
II.
We review de novo a district court’s denial of a motion for
judgment of acquittal. See United States v. Alerre, 430 F.3d
681, 693 (4th Cir. 2005). In our review, “we are obliged to
sustain a guilty verdict if, viewing the evidence in the light
most favorable to the Government, it is supported by
‘substantial evidence’” — substantial evidence being that which
a “reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id.; see also United States v. Harvey, 532
F.3d 326, 333 (4th Cir. 2008) (observing that “[w]e consider
both circumstantial and direct evidence”). On the other hand,
we review a trial court’s evidentiary rulings for abuse of
discretion. See United States v. Delfino, 510 F.3d 468, 470
(4th Cir. 2007). Finally, factual determinations underlying a
court’s imposition of sentence must be supported by a
10
preponderance of the evidence, and are not to be overturned
unless they are clearly erroneous. See United States v.
Jeffers, 570 F.3d 557, 570 (4th Cir. 2009).
III.
A.
On the Sufficiency Issue, Sesere contends that there was
insufficient trial evidence to warrant his § 841(a) conviction
on Count Twenty-Four — in which he attempted to escape from the
pursuing officers by climbing a backyard fence. Specifically,
Sesere contends that there was no evidence that the crack found
in the yard beyond the fence was ever in his possession, and
that he was therefore entitled to judgment of acquittal on that
charge. To the contrary, however, there was ample evidence —
albeit primarily circumstantial — that the crack cocaine found
beyond the fence had been in Sesere’s possession during his
flight from the police officers, and that he had possessed the
crack with the intention of distributing it. Officer Swartz and
other trial witnesses explained how Sesere ran from the
authorities after engaging in an undercover transaction on the
Block, and how he sought to scale the fence to escape. Swartz
also explained how the pieces of crack beyond the fence were
found — three of them on top of the grass about three to four
feet from the fence and the fourth on a nearby table — and that
11
the circumstances indicated that they had been recently thrown
over the fence. Officer Spaid also observed the pieces of crack
lying on the grass and on the table.
Viewing the evidence in the light most favorable to the
prosecution — as we must — the jury was entitled to conclude
that Sesere had been in possession of the crack cocaine found
beyond the fence, and that he had possessed it with the
necessary intent. As a result, there was sufficient evidence to
support Sesere’s § 841(a) conviction on Count Twenty-Four, and
the district court properly denied Sesere’s motion for judgment
of acquittal.
B.
Turning to the Bolstering Issue pursued by Sesere, we first
recognize that his trial lawyer probably was incorrect in
characterizing the questioning of Joseph and Sloane as “improper
vouching.” Sesere more appropriately asserts on appeal that the
improper evidentiary practice being challenged was “improper
bolstering.” The bolstering of a witness has been characterized
as “the practice of offering evidence solely for the purpose of
enhancing a witness’s credibility before that credibility is
attacked.” See United States v. Lindemann, 85 F.3d 1232, 1242
(7th Cir. 1996). Improper vouching, on the other hand, occurs
when a lawyer indicates — either in questioning or in argument
— his personal belief in the credibility or honesty of a
12
witness. See United States v. Lewis, 10 F.3d 1086, 1089 (4th
Cir. 1993). Thus, “improper bolstering” is the more appropriate
term for the evidentiary challenges interposed by Sesere’s
lawyer at trial.
In any event, Sesere faces an uphill battle on the
Bolstering Issue — which we review for abuse of discretion only
— primarily because Rule 607 of the Federal Rules of Evidence
gives any party the right to impeach its own witnesses. See
Fed. R. Evid. 607 (“The credibility of a witness may be attacked
by any party, including the party calling the witness.”).
Consistent with the foregoing, we have specifically recognized
that “[a] party may impeach its own witness [under Rule] 607.”
United States v. Henderson, 717 F.2d 135, 137 (4th Cir. 1983);
see also Util. Control Corp. v. Prince William Constr. Co., 558
F.2d 716, 720 (4th Cir. 1977) (recognizing that “the effect of
Rule 607 is to sweep away the traditional rule that a party may
not impeach his own witness”). Thus, as Rule 607 provides, and
as the courts have recognized, the questioning challenged by
Sesere was plainly permissible, and the trial court cannot be
said to have abused its discretion in ruling as it did.
C.
In his final appellate contention — the Sentencing Issue —
Sesere contends that the sentencing court clearly erred in
attributing to him a drug quantity of at least 500 grams of
13
crack cocaine, thereby sentencing him pursuant to section
2D1.1(c)(3) of the Guidelines, which provides for a base offense
level of 34. Sesere maintains that the quantity of crack
properly attributable to him was no more than ten to fifteen
ounces (approximately 280 to 420 grams), and that he therefore
should have been sentenced pursuant to section 2D1.1(c)(4),
which directs a base offense level of 32.
Section 1B1.3(a) of the Guidelines provides that the base
offense level “shall be determined on the basis of” the offense
of conviction and relevant conduct. In making that
determination, the “[s]entencing judge[] may find facts relevant
to determining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008). And we will not overturn such factual
findings unless they are clearly erroneous. See United States
v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009). In terms
specific to a § 846 conspiracy conviction, the drug quantity
attributable to a defendant is the quantity involved in the
conspiracy that was reasonably foreseeable to the defendant.
See USSG § 1B1.3(a)(1); United States v. Randall, 171 F.3d 195,
210 (4th Cir. 1999) (explaining that “the district court may
attribute to the defendant the total amount of drugs involved in
14
the conspiracy, provided the drug quantities were reasonably
foreseeable to the defendant and are within the scope of the
conspiratorial agreement” (citing United States v. Irvin, 2 F.3d
72, 77 (4th Cir. 1993) (Wilkins, J.)).
At sentencing, the district court found that Sesere
“certainly understood that the endeavor, the collaboration
between the group [Sesere and his coconspirators], was
responsible for at least 500 grams of crack cocaine.” J.A. 592.
At trial, the prosecutors presented at least eight witnesses who
testified about Sesere’s drug dealing activities on the Block.
Joseph, for example, confirmed that between January and June of
2006 he had frequently sold Sesere 84 grams of crack per week,
totalling more than 280 to 420 grams. Sloane, Sesere’s
girlfriend, testified that Sesere had “a few times” made $2000
in a day selling crack, and up to $5000 on a good day. J.A.
471. Finally, Mannot Lusca, a drug dealer on the Block, related
that on two or three occasions Sesere had pooled his money with
other drug dealers to buy “bricks” of cocaine (a brick being
worth approximately $14,400 dollars). Put simply, the
sentencing court’s finding that at least 500 grams of crack
cocaine was properly attributable to Sesere for sentencing
purposes was not clearly erroneous.
15
IV.
Pursuant to the foregoing, we reject the appellate
contentions pursued by Sesere and affirm his convictions and
sentence.
AFFIRMED
16