UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4667
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANCHEZ HUDSON, a/k/a Chez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00039-FDW-DCK-14)
Submitted: October 27, 2011 Decided: January 23, 2012
Before KING, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Sanchez Hudson was convicted of
one count of conspiracy to distribute and possess with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 841, 846,
851 (2006), and sentenced to 384 months’ imprisonment. Hudson
argues that the district court erred in (1) denying his motion
to dismiss under the Speedy Trial Act, (2) admitting evidence of
his prior bad acts and (3) permitting a testifying law
enforcement officer to remain in the courtroom throughout the
trial. He also claims the evidence was insufficient to support
the conviction. In addition, Hudson contends there were several
errors at sentencing. Finding no error, we affirm.
This court reviews de novo a district court’s
interpretation of the Speedy Trial Act, while it reviews any
related factual findings for clear error. United States v.
Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996). The relevant
provision of the Act provides that in “any case in which a plea
of not guilty is entered, the trial of a defendant . . . shall
commence within seventy days” from the later of (1) the filing
date of the information or indictment or (2) the defendant’s
initial appearance before a judicial officer. 18 U.S.C.A.
§ 3161(c)(1) (West 2000 & Supp. 2011). Generally, if a
defendant is not brought to trial within seventy days, the court
must dismiss the indictment on the defendant’s motion. 18
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U.S.C. § 3162(a)(2) (2006). “The requirement of dismissal,
however, is not absolute.” United States v. Wright, 990 F.2d
147, 148 (4th Cir. 1993). Certain delays are excludable when
computing the time within which a defendant’s trial must
commence. 18 U.S.C.A. § 3161(h)(1)-(8); Wright, 990 F.2d at
148. One of the delays excluded from the “speedy trial clock”
is any “delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on,
or other prompt disposition of, such motion[.]” 18 U.S.C.
§ 3161(h)(1)(D). “The plain terms of the statute . . . exclude
all time between the filing of and the hearing on a motion
whether that hearing was prompt or not.” Henderson v. United
States, 476 U.S. 321, 326 (1986). This court has held that, in
a multi-defendant case, a time period excluded for one defendant
is excludable for all defendants in the same action. United
States v. Jarrell, 147 F.3d 315, 316 (4th Cir. 1998); United
States v. Sarno, 24 F.3d 618, 622 (4th Cir. 1994).
Based on numerous pre-trial motions filed by Hudson
and his co-defendants, we find that Hudson’s speedy trial clock
had not completely run when counsel filed a motion for a
continuance on June 3, 2009. We further note that the district
court specifically found that counsel needed the continuance to
prepare for trial. This is a permissible factor for the court
to consider when deciding whether to grant a continuance beyond
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the seventy day period. See 18 U.S.C. § 3161(h)(7)(B)(iv).
Accordingly, the district court did not err in denying the
motion to dismiss.
Hudson also claims the district court erred in
admitting as intrinsic evidence testimony from some of Hudson’s
co-conspirators regarding drug transactions that occurred prior
to the beginning date of the conspiracy as charged in the
indictment. He contends the court should have analyzed the
proposed testimony under Rule 404(b) of the Federal Rules of
Evidence and given the jury a limiting instruction.
The district court’s admission of evidence is reviewed
for abuse of discretion. United States v. Lighty, 616 F.3d 321,
351 (4th Cir.), cert. denied, __ S. Ct. __ (Oct. 17, 2011) (No.
10-1010, 10A443). A district court “abuses its discretion when
it acts arbitrarily or irrationally, fails to consider
judicially recognized factors constraining its exercise of
discretion or relies on erroneous factual or legal premises.”
United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009)
(internal quotation marks and citation omitted). Rule 404(b) of
the Federal Rules of Evidence prohibits the admission of other
wrongs or bad acts solely to prove a defendant’s bad character.
This rule only applies to acts extrinsic to the crime charged.
United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009).
Acts intrinsic to the crime are not subject to Rule 404’s
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restrictions. Id. “Evidence of uncharged conduct is not other
crimes evidence subject to Rule 404 if the uncharged conduct
arose out of the same series of transactions as the charged
offense, or if [evidence of the uncharged conduct] is necessary
to complete the story of the crime on trial.” Id. (internal
quotation marks). We have also held that “[o]ther criminal acts
are intrinsic when they are inextricably intertwined or both
acts are part of a single criminal episode or the other acts
were necessary preliminaries to the crime charged.” United
States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). In other words,
“[e]vidence is intrinsic if it is necessary to provide context
relevant to the criminal charges.” Basham, 561 F.3d at 326
(internal quotation marks omitted).
The district court did not abuse its discretion in
ruling that evidence of prior crack cocaine transactions with
co-conspirators was intrinsic to the charged offense. Contrary
to Hudson’s argument, not all pre-conspiracy drug transactions
need to be treated as extrinsic to the charged conspiracy. In
United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994), we
noted that it would be error to assume that all evidence that
falls outside the charged conspiracy would be “other crimes”
evidence. In Kennedy, we concluded that evidence of prior drug
transactions with persons not charged in the indictment was
necessary predicate evidence establishing the context for the
5
charged conspiracy. In the case before us, the challenged
testimony showed when the participants first started working
together, what roles they had in the conspiracy and how typical
transactions were first executed. This evidence provided
context for the jury to better understand the nature of the
conspiracy. See, e.g., United States v. Lokey, 945 F.2d 825,
834 (5th Cir. 1991) (evidence of drug deals consummated prior to
the charged conspiracy was not extrinsic because it showed how
the conspiracy came about, how it was structured and how the
defendant became a member); United States v. Torres, 519 F.2d
723, 727 (2d Cir. 1975) (evidence showing background and
development of a conspiracy that predates the charges in the
indictment is admissible).
Hudson further contends that the evidence was not
admissible under Rule 403 because the probative value was
substantially outweighed by the danger of unfair prejudice.
While the evidence may have been prejudicial, it was not
unfairly so, as it described events similar to those events that
occurred during the course of the conspiracy. The jury did not
hear intrinsic evidence that was not typical of the type of
evidence that is necessary to show a drug conspiracy. We
further note that the jury was instructed that in order to find
Hudson guilty of the conspiracy, it had to find beyond a
reasonable doubt that two or more persons entered into an
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unlawful agreement that existed at the time alleged in the
indictment. Accordingly, we discern no error in the district
court’s decision to admit this evidence.
Hudson raises two points of error related to the
district court’s decision to allow a testifying witness to
remain in the courtroom during the trial. Prior to trial, the
Government gave notice under Rule 16(a)(1)(G) of the Federal
Rules of Criminal Procedure, that it intended to offer Detective
Eric Duft of the Charlotte Mecklenburg Police Department and the
Drug Enforcement Administration’s Task Force, as an expert
“regarding methods, techniques, tools, distribution methods, and
common code and slang language utilized by individuals involved
in narcotics trafficking.” The notice provided a detailed
description of Duft’s qualifications and indicated that Duft
would give an opinion regarding quantities of cocaine and crack
cocaine typically possessed by users versus the quantities
possessed by distributors. It also indicated that Duft would
testify as to the tools of the drug trade, including the use of
multiple cell phones, phones subscribed to other persons, common
concealment methods and modes of distribution and
transportation.
Hudson argues that the Government’s Rule 16 notice was
inadequate because the notice did not contain a written summary
describing Duft’s opinions and the bases and reasons for those
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opinions. Under Rule 16(a)(1)(G), “[a]t the defendant’s
request, the government must give to the defendant a written
summary of any [expert] testimony that the government intends to
use[.]” In this instance, Hudson did not request a written
summary. Accordingly, we conclude there was no error in this
regard. See United States v. Garza, 566 F.3d 1194, 1199-200
(10th Cir. 2009) (right to pre-trial notice not violated if
defendant did not make a request for such notice); United States
v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (notice required
only if defendant makes a request).
In addition, Hudson argues that the district court
erred by permitting Duft to sit through the trial prior to his
testimony. Under Fed. R. Evid. 615, the district court “must
order witnesses excluded” if requested by one of the parties,
“[o]r the court may do so on its own.” A witness may remain if
it shown that their “presence . . . [is] essential to presenting
the party's claim or defense.” Id. A court’s decision to
permit a witness to remain during trial despite a request
otherwise is reviewed for abuse of discretion. See Cooper v.
United States, 594 F.2d 12, 14 (4th Cir. 1979), abrogated on
other grounds, Mabry v. Johnson, 467 U.S. 504 (1984).
We review for plain error because Hudson never
requested that the district court sequester Duft. In order to
satisfy the plain error standard Hudson must show: (1) an error
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was made; (2) the error is plain; and (3) the error affects
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). We conclude that there was no error and that the
district court did not abuse its discretion in allowing Duft to
stay in the courtroom during the trial. *
Hudson also argues that the “cumulative effect” of the
evidentiary errors was unfairly prejudicial. Basham, 561 F.3d
at 330. Based on our conclusions regarding Hudson’s evidentiary
challenges, however, his “cumulative effect” argument is without
merit.
Next, Hudson contends the evidence was insufficient to
support the conviction based on his assertion that the
testifying co-defendants were not credible and there was no
evidence that he had anything more than a buyer/seller
relationship with the drug dealers.
*
In his reply brief, Hudson argues for the first time that
Duft’s testimony was inadmissible as a lay witness providing
opinion testimony, citing United States v. Johnson, 617 F.3d 286
(4th Cir. 2010). Because Hudson did not raise this issue in his
initial brief, this court will not consider it. See United
States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008). In
any event, we note that even if Duft’s testimony was improperly
admitted, any error was harmless. See United States v. Curbelo,
343 F.3d 273, 278 (4th Cir. 2003) (“[F]or nonconstitutional
errors, the Government must demonstrate that the error did not
have a substantial and injurious effect or influence in
determining the jury's verdict.”) (internal quotation marks and
citation omitted). Based on the collective testimony of
Hudson’s co-defendants, we find that Duft’s testimony did not
substantially influence the jury’s verdict.
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“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007). This court reviews a sufficiency
of the evidence challenge by determining whether, viewing the
evidence in the light most favorable to the Government, any
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. Id. The court reviews both
direct and circumstantial evidence, and gives the Government all
reasonable inferences from the facts. United States v. Harvey,
532 F.3d 326, 333 (4th Cir. 2008). We will uphold the jury’s
verdict if substantial evidence supports it, and will reverse
only in those rare cases of clear failure by the prosecution.
Foster, 507 F.3d at 244-45.
To support Hudson’s conviction for conspiracy to
distribute and to possess with intent to distribute drugs, the
Government had to prove beyond a reasonable doubt: “(1) that
[Hudson] entered into an agreement with one or more persons to
engage in conduct that violated 21 U.S.C. §[] 841(a)(1) . . .;
(2) that [he] had knowledge of that conspiracy; and (3) that
[he] knowingly and voluntarily participated in the conspiracy.”
United States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007).
In United States v. Reid, 523 F.3d 310, 317 (4th Cir.
2008), we held that “[e]vidence of a buy-sell transaction
coupled with a substantial quantity of drugs, would support a
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reasonable inference that the parties were coconspirators.”
(internal quotation marks and alteration omitted). Similarly,
continued relationships and repeated drug transactions between
parties are indicative of a conspiracy, particularly when the
transactions involve substantial amounts of drugs. Id. The
trial testimony showed that Hudson purchased substantial amounts
of crack cocaine and was later observed selling crack cocaine to
street level users. Clearly, the evidence supported the finding
that Hudson was part of a larger conspiracy to sell crack
cocaine in his area.
Insofar as Hudson contends the evidence was not
credible, we note that credibility determinations are within the
sole province of the jury and are not reviewable. See United
States v. Kelly, 592 F.3d 586, 594 (4th Cir.), cert. denied, 130
S. Ct. 3374 (2010). Hudson fails to show how the relevant
testimony was not believable.
Hudson next raises five challenges to his sentence.
He contends that the district court erred in finding that he was
responsible for 4.5 kilograms of crack cocaine for sentencing
purposes. This court reviews a drug quantity finding for clear
error. United States v. Kellam, 568 F.3d 125, 147 (4th Cir.
2009). Under the clear error standard of review, this court
will reverse only if “left with the definite and firm conviction
that a mistake has been committed.” United States v. Jeffers,
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570 F.3d 557, 570 (4th Cir. 2009) (internal quotation marks and
citation omitted). At sentencing, the Government need only
establish the amount of drugs involved by a preponderance of the
evidence. Id. Based on our review of the record, we conclude
that the court did not err in this instance.
Hudson also contends the enhancement to his Guidelines
offense level for obstruction of justice was in error.
According to U.S. Sentencing Guidelines Manual § 3C1.1 (2009), a
defendant’s base offense level is increased two levels for
obstruction of justice if “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and . . . the
obstructive conduct related to (A) the defendant’s offense of
conviction . . .; or (B) a closely related offense[.]” USSG §
3C1.1. The application notes for § 3C1.1 specifically include
the commission of perjury by a defendant as grounds for the
enhancement. See USSG § 3C1.1 cmt. n.4(b). For purposes of
§ 3C1.1, the Supreme Court has defined perjury in the following
manner: “[a] witness testifying under oath or affirmation” who
gives “false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1993).
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The district court did not err in finding Hudson
committed perjury during one of his co-conspirator’s trial. The
district court noted five specific instances where Hudson
perjured himself and added that the court was an “eyewitness” to
the perjury. Several of Hudson’s statements—relating to the
credibility of Hudson’s co-defendants, the terminology used to
describe crack, and the amount of crack typical of a user versus
a distributor—were clearly intended to draw the jury’s attention
away from evidence that showed that Hudson bought crack cocaine
for the purpose of distribution. Moreover, the court found
specifically that Hudson had done more than merely misspeak and
at sentencing, the government explained why the perjured
statements were material. Accordingly, the court did not err in
applying the enhancement.
Hudson notes that the Sentencing Guidelines were
amended just two months after sentencing to reflect the
statutory amendments brought about by the Fair Sentencing Act.
He contends that the amendments to the Guidelines would have
lowered his Guidelines sentence. We conclude, however, that the
district court did not err by applying the Guidelines in effect
on the date of Hudson’s sentencing. See USSG § 1B1.11(a). We
note that our decision is without prejudice to Hudson’s right to
pursue a sentence reduction in the district court pursuant to 18
U.S.C. § 3582(c)(2).
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Hudson also contends under United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc) that the district court
erred by enhancing his statutory sentence based on the
Government’s 18 U.S.C. § 851 (2006) notice, indicating Hudson
had a prior felony drug conviction. As the court noted at
sentencing, Hudson’s argument is moot. Hudson’s Guidelines
sentence was so high that his statutory minimum sentence, with
or without the § 851 notice, had no effect on his sentence.
Hudson’s 384 month sentence was within the advisory
Guidelines. Hudson contends, however, the sentence is too long
when compared to sentences received by his co-defendants. He
also contends that it was unreasonable for someone who was not a
major drug trafficker to receive such a lengthy sentence. A
sentence within the Guidelines is presumptively reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir.
2010). The district court informed Hudson why it was
inappropriate to compare Hudson’s sentence to the sentence
received by some of his co-defendants. The court noted that
some of Hudson’s co-defendants received more favorable sentences
because they pled guilty and/or cooperated with law enforcement.
In addition, Hudson’s sentence was within the Guidelines, which
was based on the quantity of drugs Hudson was found responsible
for during the course of the conspiracy, his perjury and his
extensive criminal history. Hudson fails to overcome the
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presumption of reasonableness for his within-Guidelines
sentence.
Accordingly, we affirm the conviction and sentence.
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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