United States v. David Watts

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4282

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID EARL WATTS, a/k/a High Gear, a/k/a Driver,

Defendant - Appellant.

10-4283

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES BARNARD HAITHCOCK, a/k/a Boss Hog,

Defendant – Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Florence. Terry L. Wooten, District
Judge. (4:08-cr-00372-TLW-1; 4:08-cr-00372-TLW-5)

Argued: September 21, 2011 Decided: November 9, 2011

Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Wynn and Judge Diaz joined.

ARGUED: Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence,
South Carolina; Gregory Poole Harris, HARRIS & GASSER, LLC,
Columbia, South Carolina, for Appellants. Jimmie Ewing, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Jeffrey Mikell Johnson, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:

This case is on appeal from appellants’ convictions and

sentence for one count of conspiring to possess with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841.

Appellants present five claims of error to this Court: (1) the

district court improperly denied appellants’ motion to suppress

evidence seized in connection with a search of appellant Watts’s

home after the Government lost the search warrant; (2) the

district court erroneously denied appellants’ motion for a

mistrial after the prosecutor improperly relied on statements

not in evidence during her closing arguments; (3) the prosecutor

unfairly attacked appellants’ trial attorneys during the

rebuttal argument, depriving them of a fair trial; (4) there was

insufficient evidence for the court to attribute 6.3 kilograms

of methamphetamine to Watts; and (5) there was insufficient

evidence for the court to impose a two-level, “managerial role”

enhancement to Watts’s sentence. After careful review, we

reject each of these arguments and affirm.

I.

Defendant-appellants David Earl Watts and James Barnard

Haithcock were, along with several others, indicted, tried, and

convicted of one count of conspiring to possess with intent to

distribute methamphetamine, in violation of 21 U.S.C § 841. The

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Government alleged that from 1999 up to indictment, Watts and

Haithcock participated in a conspiracy to produce and sell

methamphetamine with thirty to fifty other people. The police

obtained evidence from a number of sources, including two

searches of Watts’s home.

Before trial Watts joined co-defendant Flint Ratliff’s

motion to suppress evidence that was obtained pursuant to the

2003 search of Watts’s home on grounds that it violated Watts’s

Fourth Amendment rights. At the hearing, the Government

informed the district court that the search warrant and

accompanying affidavit had been lost. After hearing the

testimony of Christopher Page, a narcotics officer with the

Chesterfield County Sheriff’s Office, the court found that the

search warrant did exist, that there was sufficient evidence to

support a finding of probable cause, and that the Fourth

Amendment’s particularity requirement was satisfied.

At trial, the court heard from several witnesses, including

Watt’s ex-wife, Karen Watts (“Karen”). The Government also

introduced evidence obtained in a second search of Watts’s home

conducted in 2005. Appellant Haithcock also took the stand. He

testified, inter alia, that he was arrested in May 2008 in a

methamphetamine investigation. After spending several days in

jail, Haithcock and his attorney met with DEA agents and

provided a proffer statement about his methamphetamine use. On

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cross examination, the prosecutor impeached Haithcock, making

extensive use of the proffer statement. The Government referred

to the proffer during its closing arguments, arguing that “just

based on Mr. Haithcock’s statement . . . to the DEA that you

could convict each of these defendants . . . .” Also during the

prosecution’s closing, the Government made several references to

defense counsel’s argument, calling it a “red herring” defense

that is “improper” and mere “speculation.” The Government spoke

about defense counsel, telling the jury, “They don’t want you to

focus on the testimony. They don’t want you to focus on the

evidence,” and later, “[L]ook at the way he cross examined every

one of these witnesses . . . .” The Government also discussed

the plea agreements it made with several witnesses; it told the

jury that plea agreements “[are] designed, I submit to you, to

force truthful cooperation.”

At the sentencing hearing, the district court attributed

6.3 kilograms of methamphetamine to Watts. The court also

imposed a two-level enhancement for Watts’s leadership role in

the conspiracy. Watts was sentenced to 360 months in prison.

II.

We consider each of appellants’ five claims of error in

turn.

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A. The Lost Search Warrant

Appellant Watts argues that the district court improperly

denied his motion to suppress evidence after the Government

admitted that it lost the search warrant. In hearing an appeal

of a district court’s denial of a motion to suppress, an

appellate court reviews findings of fact for clear error and

determinations of probable cause de novo. Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Richardson,

607 F.3d 357, 369 (4th Cir. 2010).

The Fourth Amendment generally requires that before

searching a home, the police must procure a warrant issued by a

neutral magistrate; this warrant must be supported by probable

cause and contain a particular description of the place to be

searched and the items to be seized. U.S. CONST. amend. IV.

Searches conducted without a valid warrant are presumptively

unreasonable, Groh v. Ramirez, 540 U.S. 551, 559 (2004), and the

exclusionary rule bars a prosecutor from introducing evidence

obtained in violation of the Fourth Amendment during its case-

in-chief, Davis v. United States, 131 S. Ct. 2419, 2424 (2011).

However, an officer acting with an objectively reasonable good-

faith belief that the search was in accord with the Fourth

Amendment overcomes deficits in probable cause and

particularity. See id. Moreover, the Government may also use

unconstitutionally obtained evidence to impeach the defendant’s

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testimony. United States v. Leon, 468 U.S. 897, 910 (1984). If

an error is found with a district court’s ruling, this Court

subjects that ruling to harmless error review, asking whether

the defect “affect[ed] substantial rights.” FED. R. CRIM. P.

52(a). Evidence admitted in violation of the Constitution is

harmless if the appellate court finds “the constitutional error

was harmless beyond a reasonable doubt.” United States v. Abu

Ali, 528 F.3d 210, 256 (4th Cir. 2008) (citing Chapman v.

California, 385 U.S. 18, 24 (1967)).

In this case, Watts contends that the Government did not

meet its burden of proof in demonstrating that the lost warrant

both existed and complied with the Fourth Amendment. The

Government responds by arguing that it did meet its burden and

that in any case, the error was harmless. This Circuit has not

had occasion to address the appropriate standard for searches

involving a subsequently lost warrant. It is clear that the

Fourth Amendment’s particularity requirement must be satisfied

by the contents of the warrant itself, and not by its supporting

documents. Groh, 540 U.S. at 557 (finding a constitutional

violation when the affidavit, but not the warrant, was

sufficiently particular). But Groh left open the question of

whether any evidence besides the warrant itself can be used to

prove a missing warrant’s existence or contents. The Eleventh

Circuit considered this question in United States v. Pratt,

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where it held that “when a warrant is not in evidence at a

suppression hearing, a prosecutor must prove, by a preponderance

of the evidence, the missing search warrant’s exact language

describing the place to be searched and the persons or items to

be seized.” United States v. Pratt, 438 F.3d 1264, 1270 (11th

Cir. 2006).

Without ruling on the appropriate legal standard for cases

involving lost search warrants, we find that even if the

Government violated Watts’s Fourth Amendment rights and the

district court erred in failing to suppress the evidence

collected from the search, the error was harmless. Because only

Watts has standing to challenge the search of his home, we do

not consider the effect the alleged Fourth Amendment violation

had on Haithcock’s conviction and sentence.

Over an eight-day trial where more than two dozen witnesses

testified, only two made any mention of the first search of

Watts’s home. * One, Investigator Wayne Jordan, told the jury

that officers found methamphetamine; the other, Christopher

Page, said the police found “several guns,” a set of scales, and

two bags containing what was later determined to be

methamphetamine. None of these facts was necessary to establish

Watts’s guilt. The fact that Watts possessed methamphetamine

*
The search at issue here took place on November 24, 2003;
a second search occurred at the same location on July 14, 2005.

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was effectively admitted by the defense during closing arguments

when counsel told the jury there was “no doubt” that Watts used

methamphetamine. Moreover, the 2005 search of Watts’s home,

which neither appellant challenges, produced substantially the

same evidence against Watts and then some: upon arrival, the

police found Karen and Watts (who was not present at the first

search) sitting in front of a coffee table with two lines of

white powder in front of them; the police also recovered

methamphetamine, plastic baggies, digital scales, a security

monitor, empty gel caps, empty ephedrine boxes, and a cutting

agent. And while we register some concern with respect to the

introduction of evidence that there were guns inside Watts’s

home, we also note that Watts was not charged with any crime

relating to the possession of a firearm.

Besides the evidence obtained by the 2005 search, the

prosecution also put on nine witnesses who testified that they

purchased or received methamphetamine from Watts. Karen and a

woman named Jeannie Street both testified that they provided

Watts with pseudoephedrine pills for the manufacture of

methamphetamine. Ms. Street also said that she allowed Watts to

bury tanks of anhydrous ammonia in her yard. Several witnesses

also told the jury that they saw Watts making methamphetamine,

and three said that Watts himself showed them how to manufacture

the drug. In considering the substantial and mostly uncontested

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evidence admitted into the record against Watts, we find beyond

a reasonable doubt that any Fourth Amendment violation was

harmless.

B. The Motion for a Mistrial

Appellants contend that it was improper for the Government

to refer to Haithcock’s proffer statement to the DEA during its

closing arguments because that statement was never admitted into

evidence. The Fourth Circuit reviews a district court’s denial

of a motion for a mistrial for abuse of discretion. United

States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003). When the

motion concerns the Government’s closing arguments, this Circuit

requires the application of a two-pronged test: “(1) whether

the prosecutor’s remarks or conduct was improper, and (2)

whether such remarks or conduct prejudicially affected the

defendant’s substantial rights so as to deprive [him] of a fair

trial.” Id. (citing United States v. Francisco, 35 F.3d 116,

120 (4th Cir. 1994)). An appellate court also reviews claims of

improper closing arguments for harmless error. FED. R. CRIM. P.

52(a). To find the error harmless, this Court “need only be

able to say with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.”

United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

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 A fundamental rule of law is that “argument is limited to

the facts in evidence.” United States v. Wilson, 135 F.3d 291,

298 (4th Cir. 1998). Past inconsistent statements cannot

normally be used as substantive evidence, as Rule 802 bars

hearsay from being admitted. FED. R. EVID. 802. The defendant’s

previous statements, however, are not hearsay. FED. R. EVID.

801(d)(2)(A). Relevant, non-hearsay evidence is normally

admissible. FED. R. EVID. 402. Here, Haithcock’s statement was

relevant: it directly contradicted several statements he made

during his direct examination. And of course, any party may

impeach a witness’s testimony. FED. R. EVID. 607. Thus, the

statement was straightforwardly admissible. See United States

v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (finding no error

where the district court instructed the jury that it may

consider the defendant’s prior inconsistent statements as

substantive evidence). The only question is whether it was

admitted.

The record indicates that the prosecutor mentioned only one

fact from the proffer that Haithcock did not testify to on

direct or cross examination: that he had “his attorney, Mr.

McBratney” with him when he made the statement. However, we

cannot conclude, based on this one minor detail, that the

prosecution’s closing arguments were improper under Francisco,

much less that they prejudicially affected appellants’

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substantial rights. “[T]o parse through a prosecutor’s closing

statement for minor infelicities loses sight of the function of

our adversary system, which is to engage opposing views in a

vigorous manner.” United States v. Johnson, 587 F.3d 625, 632-

33 (4th Cir. 2009). The district court’s denial of appellants’

motion for a mistrial, therefore, was proper.

C. The Government’s Closing Arguments

Appellants next claim that the prosecution’s comments

during its closing arguments about defense counsel were improper

and that the Government bolstered and vouched for its witnesses.

A district court has broad discretion with respect to oral

arguments. It will be overturned only for abuse of discretion

under Stockton’s two-part test. See Stockton, 349 F.3d at 762.

Appellants did not object to the prosecutor’s comments, a fact

they concede here. Appellant’s Br. 38. When a defendant fails

to object at trial, the appellate court reviews only for plain

error. United States v. Baptiste, 596 F.3d 214, 226 (4th Cir.

2010).

While courts grant counsel great latitude in presenting

their closing arguments, the “guiding principle is that a

prosecutor should not strike ‘foul blows.’” United States v.

Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004), rev’d on other

grounds, 543 U.S. 1112 (2005). It is therefore “improper for a

prosecutor to launch a personal attack upon the defense attorney

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or upon defense attorneys generally.” Id. Here, the comments

made by the prosecutor about defense counsel, while pointed,

were not personal attacks. It is true that the prosecutor

referred to defense counsel’s theory as a “red herring defense,”

and made comments like “They don’t want you to focus on the

testimony you’ve heard in this case,” and at one point during a

sharp back-and-forth, the Government even commented in reference

to defense counsel’s actions, “It’s misleading, Your Honor, and

I object.” But none of these are personal attacks against the

defendant’s attorney; they reflect a spirited disagreement with

the arguments made by the opposing party and do not concern the

attorneys themselves. See Ollivierre, 378 F.3d at 418 (finding

that the prosecution’s comments, including that defense counsel

“tries to weave in distorted facts to try to make his argument,”

were not improper). Moreover, the comments simply were not

attacks under Ollivierre: litigation at times becomes heated,

and the comments here do not rise to anything near the level of

acrimony necessary to reverse a district court on abuse-of-

discretion grounds.

Similarly, the Government did not impermissibly bolster or

vouch for its witnesses. Impermissible “[v]ouching occurs when

a prosecutor indicates a personal belief in the credibility or

honesty of a witness; bolstering is an implication by the

government that the testimony of a witness is corroborated by

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evidence known to the government but not known to the jury.”

United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997).

However, such improper comments do not always require retrial:

the issue is whether “the prosecutors’ comments so infected the

trial with unfairness as to make the resulting conviction a

denial of due process.” Id. (citing United States v. Mitchell,

1 F.3d 235, 240 (4th Cir. 1993)). With respect to vouching,

this Court adopted the Tenth Circuit’s explanation of the types

of comments that are appropriate with regard to plea agreements

in closing arguments:

Presenting evidence on a witness’ obligation to
testify truthfully pursuant to an agreement with the
government and arguing that this gives the witness a
strong motivation to tell the truth is not, by itself,
improper vouching. . . . Use of the ‘truthfulness’
portions of [a plea agreement] becomes impermissible
vouching only when the prosecutors explicitly or
implicitly indicate that they can monitor and
accurately verify the truthfulness of the witness’
testimony.

United States v. Collins, 401 F.3d 212, 216 (4th Cir. 2005)

(citing United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.

1990)).

Here, the Government did not improperly vouch. The only

statement made with respect to the plea agreements is the

prosecution’s remark, “[I]t’s designed, I submit to you, to

force truthful cooperation.” This did not suggest the

prosecution was able to “monitor and accurately verify the

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truthfulness” of any testimony; it is instead a general comment

implying that the witness has “a strong motivation” to tell the

truth. See also United States v. Celestine, 43 Fed.Appx. 586,

596 (4th Cir. 2002) (finding the prosecutor’s closing remarks

were not improper in part because the phrase “I contend to you”

indicates “routine argument, and not the expression of the

prosecutor’s personal opinion”). As for the charge of

bolstering, there is simply no indication the Government ever

suggested it had evidence not known to the jury that

corroborated any witness’s testimony. Appellant’s argument,

therefore, is rejected.

D. The Quantity of Methamphetamine

Turning to his sentence, Watts argues that the district

court erred in attributing 6.3 kilograms of methamphetamine to

him. This Court reviews a district court’s drug quantity

finding for clear error. United States v. Kellam, 568 F.3d 125,

147 (4th Cir. 2009). That burden is satisfied when the review

of all of the evidence leaves the court “‘with the definite and

firm conviction that a mistake has been committed.’” Easley v.

Cromartie, 532 U.S. 234 (2001) (quoting United States v. United

States Gympsum Co., 333 U.S. 364, 395 (1948)).

When a defendant objects to a quantity of drugs, the

district court must make an independent, factual determination

of the issue. United States v. Williams, 152 F.3d 392, 300 (4th

15
Cir. 1998). In reaching its decision, the district court must

find that it is more probable than not that the defendant was

responsible for at least the quantity of drugs attributable to

him. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir.

2004). Precise calculations of the amount of drugs are not

required; the district court may approximate the quantity to be

used for sentencing. United States v. Uwaeme, 975 F.2d 1016,

1018 (4th Cir. 1992) (quoting 18 U.S.C. § 3742(e) (2003)). A

conspirator may be held accountable for all of the drugs

attributable to the conspiracy as long as it was reasonably

foreseeable that the drugs would be involved in the conspiracy.

United States v. Osborne, 345 F.3d 281, 284-85 (4th Cir. 2003)

(citing United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.

1993)).

In this case, appellants concede that, because of the

conspiracy charge, Watts is liable for the uncontested 2.607

kilograms of methamphetamine attributed to his co-conspirators.

Appellant’s Br. 50. As for the remaining 3.693 kilograms, the

district court relied heavily on the testimony of Karen. In

evaluating testimony, “due regard to the opportunity of the

district court to judge the credibility of the witnesses” shall

be given. Uwaeme, 975 F.2d at 1018. Here, the district court

did not err in crediting Karen’s testimony, notwithstanding

appellants’ arguments that the Wattses had a tumultuous

16
relationship and that Karen did not have significant contact

with Watts during part of the conspiracy. The district court

gave several reasons for finding that Karen’s testimony was

truthful: it noted that her statements were mostly consistent;

that she “substantially incriminat[ed]” herself; that the court

observed her demeanor and found her to be credible; that she had

a basis to know the facts to which she testified; and that her

testimony was credited by the jury. Moreover, the presentence

report attributed 15.3 kilograms of methamphetamine to Watts.

Rather than taking a heavy-handed approach, the district court

“err[ed] on the side of caution,” used “every lowest common

denominator that [it could] use,” and reduced that amount

substantially. The drug weight attributed to Watts, therefore,

was not erroneous.

E. The Managerial Role Sentencing Enhancement

Finally, appellant Watts argues that there was insufficient

evidence for the court to impose a two-level managerial

enhancement at sentencing because Watts, rather than having a

leading or supervisory role in the conspiracy, was merely one

member of a “loose-knit” organization that bought and sold

methamphetamine. The Fourth Circuit reviews a district court’s

decision to apply a sentencing adjustment for clear error.

United States v. Sayles, 296 F.3d 219 (4th Cir. 2002).

17
 A district court may impose a two-level enhancement against

a defendant that it finds acted as “an organizer, leader,

manager, or supervisor” of the conspiracy. U.S.S.G. § 3B1.1(c).

In reaching its decision, district courts look to seven factors:

(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.

United States v. Cameron, 573 F.3d 179, 1984 (4th Cir. 2009)

(citing U.S.S.G. § 3B1.1, cmt. n.4). Here, the factors point in

favor of a finding that Watts acted in a managerial role. To

begin with, Watts had significant decision-making authority,

acting as a supervisor on a number of occasions: He, for

example, ordered Karen to purchase pseudoephedrine pills and to

“bubble” liquid methamphetamine and would intermittently forbid

Karen from entering the house where he and the other co-

conspirators were cooking methamphetamine. Watts also taught

several of his co-conspirators how to make the drug, including

David Flake, Shaun Runyan, and Robert Rowell. Finally, on one

occasion, a woman named Michelle Goodwin visited Watts to

purchase methamphetamine; Watts directed a woman to pull up

Goodwin’s shirt to see whether she had a recording device. In

looking at the record as a whole, it is clear from the testimony

18
that Watts acted as an organizer and leader in the conspiracy.

The district court did not commit clear error in applying the

two-level managerial enhancement.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

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