United States v. Bracey

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5668

DARRELL BRACEY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5670

RONALD M. HUMPHRIES,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4008

LINWOOD GRAY,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CR-94-241-DKC)

Argued: November 1, 1996

Decided: December 30, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Jackson Garber, Washington, D.C.; William B.
Purpura, Baltimore, Maryland, for Appellants. Barbara Suzanne
Skalla, Assistant United States Attorney, John Vincent Geise, Assis-
tant United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: David Ash, Baltimore, Maryland, for Appellants. Lynne A.
Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Darrell Bracey, Ronald M. Humphries, and Linwood
Gray appeal their convictions of conspiracy to distribute heroin and
cocaine. They argue that the district court erred in admitting evidence
seized pursuant to an illegal search warrant and in allowing the
admission of an unavailable witness's grand jury testimony. They also
assert that the evidence at trial presented multiple conspiracies instead
of a single conspiracy, resulting in a material variance from the indict-
ment, and requiring the district court to grant a multiple conspiracy
instruction. Finally, appellants raise a series of issues regarding their
sentences. We find that the district court committed no error, and
therefore affirm.

I.

Gray, Humphries, and Bracey were all convicted of conspiracy to
distribute cocaine and heroin. Gray and Humphries were also con-
victed of distribution of heroin. Bracey received a sentence of 360

2
months. Humphries received a sentence of 188 months and was
ordered to forfeit $200,000. Gray received a sentence of 405 months
and was ordered to forfeit $1,500,000, as well as jewelry sold to him
as part of the government's investigation.

II.

The first issue raised on appeal is the district court's denial of
Humphries' motion to suppress evidence. Humphries claims that the
search warrant at issue was deficient because the supporting affidavit
offered little proof that he lived at the searched premises, and offered
no link whatsoever between the premises and criminal activity.

On June 7, 1994 a magistrate issued a search warrant for a house
located at 4605 Jean Marie Drive, Oxon Hill, Md. The affidavit in
support of the warrant cited several facts to establish that Humphries
resided at Jean Marie Drive. Special Agent Robert Passmore of the
IRS provided information that Humphries used the residence. Hum-
phries drove a light blue truck that was seen parked in front of the
house on several occasions. Telephone records indicated that the tele-
phone service for the address was registered to a Helen Humphries.

As for the connection to criminal activity at the premises, Special
Agent Crosby, the affiant, opined that drug dealers (and the affidavit
set forth evidence indicating that Humphries was a drug dealer) often
store drugs and other evidence of drug trafficking where they live.
Agent Crosby based this statement upon his three years experience as
a drug agent and his training.

In United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993), we
recognized that "[i]n this and other circuits, residential searches have
been upheld only where some information links the criminal activity
to the defendant's residence. . . . Where no evidence connects the
drug activity to the residence, the courts have found the warrant
defective." Application of this standard to the affidavit at issue indi-
cates that the evidence presented was relatively thin; there were few
facts to establish either that Humphries resided at the residence or that
the residence was related to drug activity.

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However, because we find that the officers in this case acted in
good faith, we need not reach the validity of the warrant itself. Under
the good faith exception to the warrant requirement, evidence
obtained from an invalidated search warrant will be suppressed "only
if the officers were dishonest or reckless in preparing their affidavit
or could not have harbored an objectively reasonable belief in the
existence of probable cause." United States v. Leon, 468 U.S. 897,
926 (1984). There can be little doubt that Leon applies in this case.
Although the warrant at issue may be on the borderline, it certainly
"is not so lacking in probable cause that the officers' reliance upon
it was objectively unreasonable." Lalor, 996 F.2d at 1583. The fact
that both the magistrate judge and district court subsequently found
probable cause further supports this conclusion. Id.

III.

Appellants also challenge the district court's admission of the
grand jury testimony of Joyce Chambers. Chambers was unavailable
to testify at trial, and the district court admitted her grand jury testi-
mony under the "other exceptions" hearsay provision. Fed. R. Evid.
804(b)(5). Appellants challenge this admission on two grounds. First,
they argue that there was insufficient evidence of trustworthiness to
satisfy the Confrontation Clause. Second, they argue that the govern-
ment failed to afford them the notice required by Rule 804(b)(5).

A.

Joyce Chambers appeared before the grand jury on August 2, 1994
and testified as follows. She had cooperated with the DEA in a plan
to sell jewelry to Gray in exchange for cash and heroin. Gray knew
that Chambers was a jewelry thief, and that she sold the jewelry she
stole. On numerous occasions from December 1992 through April
1993 Gray exchanged drugs and cash for jewelry Gray thought that
Chambers had stolen. Gray, Humphries, and Bracey all delivered her-
oin to her at different times.

Throughout the course of Chambers' cooperation with the govern-
ment, her encounters with the appellants were well documented.
Chambers made hand-written notes after each meeting, which were
later typed by government agents, and signed by Chambers. She also

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wore a wire during these meetings, and her telephone calls to Gray
were recorded.

Appellants argue that the district court erred in permitting Cham-
bers' grand jury testimony to be read to the jury when she was
unavailable to testify at trial. They assert the grand jury testimony
constituted hearsay unaccompanied by sufficient indicia of trustwor-
thiness to satisfy the Confrontation Clause. We review findings of
sufficient indicia of trustworthiness for clear error. See United States
v. Workman, 860 F.2d 140, 144 (4th Cir. 1988).

There are two requirements for admitting incriminating out-of-
court statements under the Confrontation Clause: (1) the prosecution
must show that the witness was unavailable and (2) the statement
"bears adequate `indicia of reliability.'" Idaho v. Wright, 497 U.S.
805, 814-15 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 66
(1980)). Appellants do not dispute that Chambers was unavailable.
Therefore, the only issue is whether the district court committed clear
error by holding that Chambers' testimony bore adequate indicia of
reliability.

In Idaho v. Wright the Supreme Court held that trustworthiness is
established from the totality of the circumstances surrounding the
making of the statement. 497 U.S. at 819-20. In this case the circum-
stances surrounding the statement strongly suggest reliability. Cham-
bers testified voluntarily before the grand jury, see United States v.
McHan, No. 94-5464, 1996 WL 692128, at *10 (4th Cir. Dec. 4,
1996), under oath, and subject to prosecution for perjury. She testified
"from personal knowledge." Id. Virtually all of Chambers' testimony
could be independently verified by government agents who had tape
recorded Chambers' interactions with the appellants. See United
States v. Ellis, 951 F.2d 580, 583 (4th Cir. 1991). Chambers referred
to her own notes to refresh her memory, and government agents could
use those notes to double check the veracity of Chambers' testimony.
In such circumstances there would be little opportunity for Chambers
to perjure herself, let alone any possible motivation. As such, the dis-
trict court did not err in admitting Chambers' testimony.

B.

Appellants also argue that the admission of Chambers' testimony
violates the notice provisions of Fed. R. Evid. 804(b)(5).

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Approximately two or three weeks before the trial the government
discovered that Chambers was missing. Up until, and during, the trial
the government continued to search for Chambers, and hoped she
would appear as a live witness. Appellants make no claim that the
government failed to search diligently for Ms. Chambers. On the first
Friday of the trial, January 13, 1995, the government met ex parte
with the trial judge and explained that Chambers was missing, and
that the government was continuing to search for her. The govern-
ment argued, and the district court agreed, that because the appellants
were accused of attempting to kill Chambers, informing the defense
that she was out of government custody might endanger her life. A
week later, on January 20, 1995, the government realized it was
unlikely that Chambers could be located in time to testify, and
informed both the court and the appellants that it planned to introduce
Chambers' grand jury testimony. The court adjourned from January
24 until January 27 to allow the defense to prepare for the grand jury
testimony. On January 27 the grand jury testimony was read to the
jury.

The notice requirement of Rule 804(b)(5) provides:

a statement may not be admitted under this exception unless
the proponent of it makes known to the adverse party suffi-
ciently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it,
the proponent's intention to offer the statement and the par-
ticulars of it, including the name and address of the declar-
ant.

Fed. R. Evid. 804(b)(5). Appellants argue that the district court erred
in admitting Chambers' testimony because the government did not
inform them that Chambers was unavailable until mid-trial, and the
government knew prior to the trial that Chambers was missing. We
review the admission of hearsay statements for abuse of discretion.
Ellis, 951 F.2d at 582.

Appellants treat the notice provisions of Rule 804(b)(5) as if those
requirements present an absolute bar to admission without pre-trial
notification. We have recognized that although the notice require-
ments of Rule 804(b)(5) are construed "strictly," when "new evidence

6
is uncovered on the eve of trial . . . advance notice is obviously
impossible." United States v. Heyward, 729 F.2d 297, 299 n.1 (4th
Cir. 1984). Further, when "reasonable steps" have been taken to locate
an unavailable witness, and "pretrial notice was wholly impractica-
ble," a court should grant "notice flexibility" under Rule 804(b)(5).
United States v. Baker, 985 F.2d 1248, 1253 n.3 (4th Cir. 1993).

In such a circumstance "a continuance to allow the party entitled
to advance notice an opportunity to prepare to meet the evidence" is
often the preferred remedy. Heyward, 729 F.2d at 299 n.1. See also
Furtado v. Bishop, 604 F.2d 80, 92 (1st Cir. 1979); United States v.
Bailey, 581 F.2d 341, 348 (3d Cir. 1978); Michael H. Graham,
Federal Practice and Procedure: Evidence § 6775, at 745-47 (Interim
Edition 1992); 4 Jack B. Weinstein et al., Weinstein's Evidence
¶ 803(24)[01], at 803-441 (1996). Furthermore, in cases where the
defense was substantially aware of the gist of the testimony courts
have also waived the notice requirement. United States v. Panzardi-
Lespier, 918 F.2d 313, 317-18 (1st Cir. 1990); United States v. Leslie,
542 F.2d 285, 291 (5th Cir. 1976).

Here virtually all of these factors support the district court's deci-
sion to allow the admission of Chambers' grand jury testimony
despite the lack of notice. The government brought Chambers'
absence to the attention of the court ex parte in a timely fashion. The
district court correctly decided that the possible danger to Chambers'
safety justified a delay in informing the appellants of her disappear-
ance from government custody. When it became apparent that Cham-
bers would not be found in time to testify, the government informed
the appellants of Chambers' unavailability and the necessity of admit-
ting the grand jury testimony. The district court then properly granted
the appellants a continuance to prepare for Chambers' testimony. Six
days, including Saturday and Sunday and a two day continuance,
passed between the notice to the defense and the reading of Cham-
bers' testimony to the jury. Moreover, the defense knew from the
indictment that Chambers' testimony would be a major aspect of the
government's case, and knew the substance of her testimony. Finally,
the district judge instructed the jury to give particular scrutiny to
Chambers' testimony.

For these reasons, this is a strong case for "notice flexibility,"
Baker, 985 F.2d at 1253 n. 3, and the district court did not err.

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IV.

Bracey and Humphries present two related arguments concerning
their conspiracy convictions. First, they assert that the evidence of
multiple conspiracies presented at trial was materially different from
the indictment and established an impermissible variance. They also
contend that the district court erred in failing to grant a multiple con-
spiracy jury instruction.

A.

"In a conspiracy prosecution, a defendant may establish the exis-
tence of a material variance by showing that the indictment alleged
a single conspiracy but that the government's proof at trial established
the existence of multiple, separate conspiracies." United States v.
Kennedy, 32 F.3d 876, 883 (4th Cir. 1994), cert. denied, 115 S.Ct.
939 (1995). "A variance occurs when the government produces so lit-
tle evidence on a charge in the indictment that the charge should not
even be sent to the jury." United States v. Ford, 88 F.3d 1350, 1360
(4th Cir. 1996). Even if a variance is proven, "[a] variance constitutes
a legitimate grounds for reversal only if the appellant shows that the
variance infringed his `substantial rights' and thereby resulted in
actual prejudice." Kennedy, 32 F.3d at 883. To make a showing of
actual prejudice an appellant must prove that "`there [were] so many
defendants and so many separate conspiracies before the jury' that the
jury was likely to transfer evidence from one conspiracy to a defen-
dant in an unrelated conspiracy." Id. (quoting United States v.
Caporale, 806 F.2d 1487, 1500 (11th Cir. 1986)).

Count one of the indictment names Gray, Bracey, and Humphries
as co-conspirators. Bracey and Humphries argue that the bulk of the
evidence presented at trial concerned only Gray, and that the evidence
against them proved a separate conspiracy to cooperate with Gray in
trading drugs for jewelry with Chambers. To the contrary, as the dis-
trict court correctly held, the evidence presented established that
Bracey and Humphries were not separate spokes on a conspiracy
wheel, but central participants with Gray.

Five witnesses testified at trial as to the participation of Humphries
and Bracey in the conspiracy. Joyce Chambers, Sean Washington,

8
Troy Davis, Terrance Bailey and Linwood Gray II all stated that
Bracey and Humphries were regularly involved in Gray's drug activi-
ties. This evidence established that Humphries was a supplier of both
drugs and "cutting" agents to Gray, and a key member of the conspir-
acy. Although it appears that Bracey occupied a lesser role -- he
acted primarily as a driver for Gray -- the testimony of the above wit-
nesses provided proof that his involvement with Gray was not limited
to his dealings with Chambers. Instead, it appears that at various
times during the conspiracy Bracey delivered or picked up both drugs
and cutting agents, making him a member of the full conspiracy.

It is true that the indictment, and the evidence at trial, included
much more evidence concerning Gray, who was clearly the master-
mind of the conspiracy. It is also true that Humphries and Bracey
were not involved in all aspects of the conspiracy. But, the members
of a single conspiracy need not have participated to the same extent
to be convicted:

one's having come late to or having varied his level of par-
ticipation in [a conspiracy] from time to time puts him in a
position "no different from that of any co-conspirator who
claims to be prejudiced by evidence that goes to the activi-
ties of co-conspirators." United States v. Leavis, 853 F.2d
215, 218 (4th Cir. 1988). The Government may not properly
be "deprived . . . of its right to detail the full scope of the
conspiracy and to present its case in proper context" simply
because particular co-conspirators were not involved in the
full scope of its activities. Id.

United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996). Thus,
appellants have not shown that the evidence at trial established sepa-
rate conspiracies, and therefore have proven no variance.

B.

We also reject appellants' argument that the district court erred in
refusing to grant a multiple conspiracy charge to the jury. As outlined
above, the evidence at trial sufficiently proved a single conspiracy. "A
multiple conspiracy instruction is not required unless the proof at trial
demonstrates that appellants were involved only in`separate conspira-

9
cies unrelated to the overall conspiracy charged in the indictment.'"
Kennedy, 32 F.3d at 884 (emphasis added in original) (quoting United
States v. Castaneda-Cantu, 20 F.3d 1325, 1333 (5th Cir. 1994)).

V.

Appellants next raise a series of sentencing issues.

A.

Bracey argues that the district court erred in finding him a career
offender for purposes of Sentencing Guideline § 4B1.1. See U.S. Sen-
tencing Guidelines Manual § 4B1.1 (1995). The only question under
§ 4B1.1 is whether Bracey's four previous state convictions for armed
robbery should have been treated as "related offenses" under sentenc-
ing guideline § 4A1.2(a)(2). U.S. Sentencing Guidelines Manual
§ 4A1.2(a)(2) (1995). If these convictions had been found related,
Bracey would not have been sentenced as a career offender.

The notes to § 4A1.2 define three circumstances when prior sen-
tences may be considered related: "if [the sentences] resulted from
offenses that (1) occurred on the same occasion, (2) were part of a
single common scheme or plan, or (3) were consolidated for trial or
sentencing." U.S. Sentencing Guidelines Manual§ 4A1.2 n.3. Bracey
claims that the district court erred in not finding his previous armed
robberies to be "part of a common scheme or plan."

Bracey committed five armed robberies in Prince Georges County,
Maryland, and one in Fairfax County, Virginia from March 27, 1984
until May 8, 1994. Bracey pled guilty to all of these crimes, and in
return some of the counts were dropped against him. He was eventu-
ally separately sentenced for three of the Maryland armed robberies,
and for the Virginia armed robbery.

Bracey testified before the district court that he and Darrell Canard
performed these robberies as part of a continuing scheme to raise
money for drugs, and for an eventual trip to California. Bracey testi-
fied that the robberies were performed over a short period of time,
and in the same manner: Bracey and Canard, and on some occasions

10
a Mr. Ham, would rob a fast food restaurant, or a convenience mart,
or record store immediately before closing. The district court specifi-
cally found that Bracey's crimes were not part of a common scheme
or purpose.

Bracey asserts that this ruling was erroneous, and relies primarily
on our recent opinion in United States v. Breckenridge, 93 F.3d 132
(4th Cir. 1996). In Breckenridge we listed a series of indicia that a
district court should consider in determining whether offenses are part
of a common scheme or plan:

whether the crimes were committed within a short period of
time, in close geographic proximity, involved the same sub-
stantive offense, were directed at a common victim, were
solved during the course of a single criminal investigation,
shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only
because of an accident of geography.

Breckenridge, 93 F.3d at 138. In Breckenridge we remanded the case
back to the district court because there had been no consideration of
two of these factors. Id. at 139.

In this case Bracey argues that the majority of the Breckenridge
factors weigh in favor of finding his armed robberies connected: they
were part of a common scheme and plan, they were committed over
a short period of time, in close geographic proximity, they involved
the same substantive offense, were solved by the same criminal inves-
tigation, shared a modus operandi, and were animated by the same
motive. Bracey made substantially the same argument before the dis-
trict court.

The critical difference between this case and Breckenridge is pre-
cisely that the district court here considered each of the Breckenridge
factors, weighed the evidence, and made several factual determina-
tions. Three of those factual determinations are devastating to
Bracey's assertion that the armed robberies were part of a common
scheme. First, the district court found no common motivation behind
the robberies; the court specifically held Bracey's testimony to the
contrary unbelievable. Second, the court found that although all of the

11
armed robberies were, as the government conceded, performed in a
similar manner, there was no "signature M.O." Finally, the court
found that although the second, third, and fourth robberies were per-
formed in a short period of time, overall there were some large gaps
between robberies, and a significant total amount of time at issue.

In this case the district court was correct on the law -- it consid-
ered all of the factors listed in Breckenridge , even though that opinion
had not yet issued -- and made sufficient factual findings. Therefore
we are left to review those factual findings for clear error. See United
States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996). Although this is a
close case, the district court carefully considered Bracey's arguments
and its factual findings were not clearly erroneous.

B.

Bracey also challenges the district court's finding that more than
one kilogram of heroin was attributable to him for purposes of sen-
tencing. The district court's attribution was supported by the evidence
presented at trial, and was not clearly erroneous.

C.

Humphries challenges the upward adjustment he received under
Sentencing Guideline § 2D1.1(b)(1) for firearm possession. See U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (1995). The govern-
ment's search of the Jean Marie Drive residence uncovered the chem-
icals mannitol and quinine in a hollowed out Physician's Desk
Reference in the garage. Humphries' fingerprints were found on the
Physician's Desk Reference. Mannitol and quinine are chemicals used
as cutting agents in the narcotics trade. The search also uncovered a
pistol hidden in a rolled up carpet in the garage near the hollowed out
book.

Sentencing Guideline § 2D1.1(b)(1) provides that, "if a dangerous
weapon (including a firearm) was possessed, increase by 2 levels."
U.S. Sentencing Guidelines Manual § 2D1.1(b)(1). Note 3 to that
guideline states that "[t]he adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was con-

12
nected with the offense." U.S. Sentencing Guidelines Manual § 2D1.1
n.3. The district court found that the cutting agents were part of the
conspiracy, and that the gun's close proximity to these agents made
it likely that the gun was involved. This finding was sufficient for
§ 2D1.1(b)(1) and not clearly erroneous.

D.

Finally, Gray raises two objections to his sentencing. First, he
argues that the district court erred in applying a two level increase
under Sentencing Guideline § 3C1.1, which applies "[i]f the defen-
dant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the investigation, prose-
cution, or sentencing of the instant offense. . . ." U.S. Sentencing
Guidelines Manual § 3C1.1 (1995). Conduct warranting the enhance-
ment includes the commission of perjury. See U.S. Sentencing Guide-
lines Manual § 3C1.1 n.3.

The court found that Gray "willfully gave false testimony with
regard to material facts." The district court based this finding on a
comparison of Gray's behavior on a videotape, where he agreed to
purchase a kilogram of heroin and took a gram of the heroin as a sam-
ple, and Gray's testimony that he was not a drug dealer and that he
took the gram of heroin for "therapeutic" uses. The district court also
found incredible Gray's testimony that he had sent his underlings to
Amsterdam to purchase several kilograms of heroin as a part of a
grand scheme to convince his son to quit drug dealing and return to
the straight and narrow.

We have recently described the findings necessary to support an
enhancement for perjury:

[an] enhancement for perjury is sufficient if the court's find-
ing of obstruction "encompasses all of the factual predicates
for a finding of perjury." [United States v. Dunnigan, 507
U.S. 87, 95 (1993)]. These predicates involve a finding that
a defendant "[gave] false testimony concerning a material
matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty mem-
ory." Id. [at 94].

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United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). In this
case the district court found that Gray's testimony was willfully false
and involved material matters. These findings were sufficient as a
matter of law, and were not clearly erroneous.

Gray also argues that the district court erred by enhancing his sen-
tence under Sentencing Guideline § 3B1.1(a) as"an organizer or
leader of a criminal activity that involved five or more participants.
. . ." U.S. Sentencing Guidelines Manual § 3B1.1(a) (1995). There
was ample evidence presented at trial to support the district court's
conclusion that Gray was such an organizer or leader.

AFFIRMED

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