United States v. Walker

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5914

JAMES ANTHONY WALKER, a/k/a Jay,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 96-4110
DERRICK ANTHONY JOHNSON, a/k/a
Derek David,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 96-4247
DUALA CHAPPELL, a/k/a Douglas
McKane,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Samuel G. Wilson, Chief District Judge.
(CR-95-17)

Nos. 95-5914 and 96-4247 Argued: April 10, 1997
No. 96-4110 Submitted: April 2, 1997

Decided: June 30, 1997
Before WILKINS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Butzner wrote the
opinion, in which Judge Wilkins and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Denise Yvette Lunsford, MICHIE, HAMLETT,
LOWRY, RASMUSSEN & TWEEL, P.C., Charlottesville, Virginia,
for Appellant Chappell; Margaret McLeod Cain, Charlottesville, Vir-
ginia, for Appellant Walker. Ray B. Fitzgerald, Jr., Assistant United
States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF:
Paul Robert Byers, Aurora, Indiana, for Appellant Johnson. Robert P.
Crouch, Jr., United States Attorney, Cynthia Micklem, Third-Year
Practice Intern, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

James Walker, Derrick Johnson, and Duala Chappell appeal judg-
ments convicting them of conspiracy to possess with the intent to dis-
tribute "cocaine base, a/k/a `crack,'" and possession with the intent to
distribute "cocaine base or a mixture or substance containing cocaine
base (also known as `crack')" in violation of 21 U.S.C. § 846 and
§ 841(a)(1). We affirm.

I

On November 9, 1994, Johnson, Chappell, and a codefendant were
indicted on charges of possession with intent to distribute cocaine

2
base. They remained in jail until their trial on October 16, 1995. On
January 31, 1995, Walker was arrested for possession with the intent
to distribute cocaine base.

An investigation by the Drug Enforcement Agency uncovered evi-
dence that all three appellants were involved in a larger conspiracy to
transport cocaine from New York to Charlottesville, Virginia, for dis-
tribution. On March 9, 1995, Walker, Johnson, Chappell, and six oth-
ers were charged in a superseding sealed indictment. The indictment
charged Walker, Johnson, Chappell, and four others for their partici-
pation in the conspiracy, which was alleged to have continued from
the spring of 1994 until March 1995. The other two defendants were
indicted for separate crimes. The indictment also incorporated the
possession charge for which Johnson and Chappell were initially
indicted. Walker and Chappell faced additional possession charges
stemming from two separate acts of drug trafficking. The original
indictment against Johnson and Chappell was dismissed on March 13,
1995.

Walker, Johnson, and Chappell were convicted as charged and sen-
tenced to prison. Each defendant raises several issues on appeal.
Because this appeal involves multiple parties and factually distinct
issues, we will set forth the background facts pertaining to each legal
issue in turn.

II

On October 9, 1994, an Albemarle County, Virginia, police officer
stopped Johnson for a traffic violation. Chappell was a passenger in
the car. The officer noticed that Johnson's driver's license was sus-
pended and ordered the car to be impounded. Fifteen minutes later,
however, he saw the car, which was supposed to be impounded,
parked at a nearby motel. Later that morning the officer received
information from an FBI database that the name "Derrick Johnson"
was an alias used by a suspected drug dealer named"Derrick David."
Derrick David was actually the alias for Johnson, but the officer was
unaware of the database error and obtained an arrest warrant for John-
son on false identification charges. The police returned to the motel
where Johnson had been spotted to arrest him. They found Johnson's
car unlocked with the windows rolled down, and a slip of paper

3
resembling a traffic summons was on the seat. One of the officers
reached inside the car and picked up the piece of paper which turned
out to be a receipt bearing the name "Kawan Palmer." A motel clerk
told the officers that several young males and a female had gone into
room 35. The clerk said that room 35 was registered to Kawan
Palmer.

Before the officers entered room 35, they heard a toilet flush and
a window open. The officers found only Johnson, Chappell, and
Lamont Teele in the room. There was no sign of Kawan Palmer or
a female. The officers made a brief protective sweep of the room and
the bathroom. The bathroom window was open and an officer
observed a large quantity of crack cocaine on a trash bin below. John-
son and Chappell were arrested on state drug trafficking charges. A
federal grand jury indicted them on November 9, 1994.

Johnson and Chappell claim that the district court erred in denying
their motion to suppress the evidence seized from Johnson's car and
the motel room. They claim that the officer violated the Fourth
Amendment when he reached through the open window of Johnson's
car and picked up what he thought was the traffic summons he had
issued to Johnson earlier. Johnson and Chappell claim that without
this piece of paper the police would have never located them, arrested
them, or seized physical evidence from the motel room. They also
challenge the scope of the officers' protective sweep of the motel
room.

The district court found that the searches and seizures relating to
the arrest did not violate the Fourth Amendment. Briefly, the district
court held that, although the FBI database was inaccurate, the warrant
issued by a magistrate was sufficient under the good faith doctrine
explained in United States v. Leon, 468 U.S. 897 (1984), to validate
the search and seizure. The district court also held that the officer who
retrieved the paper from Johnson's car was lawfully in the rear of the
motel where the car was parked, that the car had been ordered
impounded, and Johnson--for whom an arrest warrant had been
issued--was seen walking away from it. These facts justified the lim-
ited search of the car. The information supplied by the motel clerk
together with the arrest warrant authorized the entry into the motel
room. Finally, the district court reasoned that the physical evidence

4
ultimately recovered also was admissible under the doctrine of "inevi-
table discovery." Nix v. Williams, 467 U.S. 431, 445-48 (1984). The
district court excluded all statements the defendants made between 9
a.m. and 4 p.m. on October 9, 1994. We affirm the decision of the dis-
trict court for the reasons adequately stated in its seven-page, written
opinion.

III

All three appellants claim that they were denied their right to a
speedy trial under both the Speedy Trial Act, 18 U.S.C. § 3161 et
seq., and the Sixth Amendment. The district court denied the appel-
lants' motion to dismiss for want of a speedy trial on two separate
occasions. We review the district court's legal conclusions regarding
the alleged speedy trial violations de novo. United States v.
Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996).

Section 3161(c)(1) of the Speedy Trial Act provides:

In any case in which a plea of not guilty is entered, the trial
of a defendant charged in an information or indictment with
the commission of an offense shall commence within sev-
enty days from the filing date (and making public) of the
information or indictment, or from the date the defendant
has appeared before a judicial officer of the court in which
such charge is pending, whichever date last occurs.

Johnson, Chappell, and codefendant Lamont Teele were held in
state custody from the date of arrest, October 9, 1994, until they made
their initial appearances before a federal magistrate on October 26,
1994. All three defendants were indicted on November 9, 1994. Thus,
the speedy trial clock for Johnson and Chappell initially commenced
on November 10, 1994. § 3161(c)(1); see Stoudenmire, 74 F.3d at 63.

The clock ran 18 days before Johnson filed a motion to suppress
evidence on November 28, 1994. This stopped the clock until a hear-
ing was held on February 28, 1995. 18 U.S.C. § 3161(h)(1)(F). The
clock remained stopped for an additional 30 days after the hearing
while the motion was under advisement of the court. 18 U.S.C.

5
§ 3161(h)(1)(J); United States v. Parker , 30 F.3d 542, 546 (4th Cir.
1994).

On March 9, 1995, while Johnson's motion was under advisement,
the government filed a sealed superseding indictment against John-
son, Chappell, and Teele. The indictment joined the three defendants
with six new codefendants, including Walker. When a defendant is
joined in an indictment with codefendants for whom the speedy trial
clock has not run and no motion for severance has been granted,
§ 3161(h)(7) allows for "a reasonable period of delay." This provision
applies to codefendants who were indicted with or after the defendant.
S.Rep. No. 93-1021, 93d Cong., p. 38 (1974). In United States v.
Piteo, the Second Circuit explained the effect of § 3161(h)(7) as fol-
lows:

[I]n cases involving multiple defendants only one speedy
trial clock, beginning on the date of the commencement of
the speedy trial clock of the most recently added defendant,
need be calculated under 18 U.S.C. § 3161(h)(7). In this
computation, a delay attributable to any one defendant is
chargeable only to the single controlling clock. So long as
the defendants in question are brought to trial within the
seventy speedy trial days that began with the clock of the
most recently added defendant and so long as any delay is
"reasonable," the Speedy Trial Act is not violated.

726 F.2d 50, 52 (1984) (citations omitted); accord Henderson v.
United States, 476 U.S. 321, 323 n. 2. Commenting on § 3161(h)(7),
another authority has observed: "In effect, the latest deadline for any
joined defendants becomes the deadline for all." Committee on the
Administration of the Criminal Law of the Judicial Conference of the
United States, Guidelines to the Administration of the Speedy Trial
Act of 1974, as Amended (Dec. 1979 rev., with amendments through
Oct. 1984), 106 F.R.D. 271, 298 (1984).

Pursuant to § 3161(h)(7), the joinder of additional defendants in the
superseding indictment effectively started a "single controlling clock"
that would measure the speedy trial time of all codefendants, includ-
ing Johnson and Chappell. The superseding indictment was unsealed
on June 7, 1995, but Walker, the most recently added codefendant

6
who was not subsequently severed, did not make his initial appear-
ance until June 8, 1995. Consequently, the "single controlling clock"
did not begin to run for Johnson, Chappell, and Walker until June 9,
1995. § 3161(c)(1); Piteo, 726 F.2d at 52.

The clock ran for 36 days before Johnson filed various motions,
including a motion to dismiss for violation of the Speedy Trial Act
on July 14, 1995. The motion was denied at a hearing on September,
21, 1995. This time was excludable because a motion alleging a
speedy trial violation is excludable just as any other motion.
Stoudenmire, 74 F.3d at 63.

Section 3161(h)(8)(A) excludes time for continuances granted by
the court provided the court finds that the continuance is in the best
interests of justice. While the speedy trial motion was pending, the
defendants also moved to continue the trial, which was scheduled for
August 7, 1995. The court granted the continuance, finding it to be
in the best interests of justice, and rescheduled the trial for October
16, 1995. Thus, from July 14, 1995, until October 16, 1995, the date
of trial, no additional time elapsed on the speedy trial clock.

Applying the exclusions to Johnson, Chappell, and Walker as per-
mitted by § 3161(h)(7), we conclude that only 36 days elapsed on the
speedy trial clock.

IV

The appellants also claim that they were denied a speedy trial
under the Sixth Amendment. In assessing such a claim, we consider
the length of the delay, the reason for the delay, the defendant's asser-
tion of the right, and prejudice to the defendant. Barker v. Wingo, 407
U.S. 514, 530 (1972).

Johnson and Chappell were in jail for over a year prior to trial, and
Walker was in jail for just over nine months. This was a lengthy pre-
trial delay during which the appellants asserted their rights to a
speedy trial. But it was the appellants' own pretrial motions which
caused much of the delay. Johnson and Chappell had their trial con-
tinued twice, which constituted a four and a half month delay. Walker

7
had his trial continued for over two months. The defendants also filed
an assortment of pretrial motions. The additional delay caused by the
superseding indictment and the addition of codefendants was reason-
able given the government's interest in prosecuting all the indicted
defendants in a single trial. Accordingly, we find no Sixth Amend-
ment violation.

V

Johnson and Walker claim that the district court erred in denying
their midtrial requests for substitution of counsel. We review such
claims for abuse of discretion. United States v. Gallop, 838 F.2d 105,
108 (4th Cir. 1988).

To determine whether the district court abused its discretion in
denying the motion, we consider (1) the timeliness of the motion, (2)
the adequacy of the court's inquiry into the defendant's allegations,
and (3) whether there was a total communication breakdown between
the attorney and defendant that prevented an adequate defense. Id.

Walker and Johnson's motions were made the second day of trial,
though Walker's counsel admitted that he should have made the
motion on the first day of trial. In any case, neither motion was timely
when balanced against the court's interest in the firm management of
its docket and the fact that the case had already been continued twice.
United States v. Mullen, 32 F.3d 891, 895-96 (4th Cir. 1994). Walker
and Johnson cite Mullen to support the timeliness of their motion. In
Mullen, however, the motion to substitute counsel was filed 33 days
prior to trial. Walker argues that he alerted the court to his complaints
before trial in a letter sent to the judge. The judge, however, stated
that he saw nothing to justify substitution of counsel.

The district court adequately inquired into Walker's complaints
that his counsel did not file all the motions he requested, did not dis-
cuss possible witnesses, and did not spend enough time to prepare for
his case. The judge asked Walker which witnesses he wished to sub-
poena for trial, but Walker could not name any. The court explained
to Walker that his counsel was not required to file every motion that
Walker wanted to bring. Walker's allegations that his counsel did not
attend two motions hearings was never raised in the district court, so

8
the court had no obligation to inquire into such allegations. Despite
Walker's complaints, the docket entries indicate that Walker filed or
joined in at least eight pretrial motions. Walker also told the judge
that his counsel had no time to prepare for his case because he was
immersed in a death penalty case in North Carolina. Walker's counsel
had previously made a motion to sever on this ground less than a
week before trial, but it was denied. The judge concluded that he had
"continued the case on a couple of occasions to be sure that [counsel]
had time to prepare, and there's been no indication that he didn't take
the opportunity to prepare in light of continuance .. . that I gave him."
The court was within its discretion to reject the allegations raised by
Walker as a basis for substituting counsel.

There is no evidence that there was such a breakdown of communi-
cation between Walker and his counsel so as to preclude adequate
representation. The court told Walker:

I still haven't heard anything that leads me to believe that
he's taken any action, or failed to take action in any way
that's prejudicial to you receiving a fair trial. I just haven't
heard it. I just heard that you disagree with what it is that
he's done, and the disagreement is simply insufficient to
raise any problem of ineffective assistance.

Walker admits that he met with his counsel once in August and twice
in September. Walker and his counsel worked together through the
trial and sentencing phase, including preparing objections to the pre-
sentence report. Evidence of cooperation and communications
between counsel and client demonstrates that the court acted properly
in not removing counsel. Cf. United States v. Hanley, 974 F.2d 14, 17
(4th Cir. 1992). There was no error in the judge refusing to grant
Walker's motion to substitute counsel.

Similarly, the court did not abuse its discretion in denying John-
son's motion to substitute counsel. The only allegations that Johnson
raised at trial were that his counsel was "not winning" any motions,
that his counsel told him that he "[was] not O.J.," and that he "[was]
not in L.A." so he wasn't going to win. The judge told Johnson that
these allegations were insufficient because they only prove that his
lawyer was giving him candid advice. On appeal, Johnson submits

9
additional allegations against his counsel, but these allegations were
never brought to the attention of the district court. The judge properly
dismissed the motion.

The heart of both Walker and Johnson's claims relate to ineffective
assistance of counsel. Walker has raised a contention that his counsel
failed to devote enough time and energy into preparing his case in
light of his ongoing death penalty case. In his motion for severance,
Walker's counsel admitted that he was "simply well short of being
able to complete the work necessary to be ready for trial on October
16, 1995." Walker also alleges on appeal that his counsel's failure to
attend two motions hearings deprived him of his right to counsel
under the Sixth Amendment. These allegations did not warrant a
midtrial substitution of counsel in a case that had been twice contin-
ued on the appellants' motion. Walker and Johnson, however, may
pursue their claims of ineffective representation on a more complete
record, if they be so advised, in a § 2255 collateral proceeding. See
Hanley, 974 F.2d at 16-17 n.2 (4th Cir. 1992).

VI

All three appellants claim that the evidence was insufficient to sup-
port their convictions. Viewing the evidence in the light most favor-
able to the government, we consider whether any rational trier of fact
could have found the appellants guilty beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942). Walker, Johnson,
and Chappell were indicted for conspiracy along with Lamont Teele,
Wesla Hughes, Kawan Palmer, and Shaheen Richardson. Walker,
Johnson, and Chappell were found guilty; Hughes and Kawan Palmer
pled guilty; Richardson was severed and pled guilty on a separate
possession charge; Teele was acquitted. Leslie Mills and Gwendolyn
Palmer pled guilty on possession charges relating to the conspiracy.
The evidence disclosed that Kawan Palmer was the leader of the con-
spiracy and that Walker, Johnson, and Chappell worked in concert
with their codefendants to either transport cocaine from New York or
distribute it in Charlottesville.

Three witnesses testified to Walker's role in the conspiracy. Gwen
Palmer, Kawan Palmer's mother who lived in New York, testified
that on two separate occasions she transported packages of cocaine

10
from New York to Charlottesville for Walker by bus. The second time
she carried the cocaine package for Walker, she was arrested at the
bus station where Walker and Hughes were awaiting her arrival.
Hughes testified that she had seen Walker with cocaine he planned to
distribute through street dealers in Charlottesville. Another witness
testified that he had purchased cocaine from Walker in Charlottesville
on as many as four occasions and that he had seen Walker with large
quantities of cocaine intended for other purchasers. A police officer
recovered a large quantity of crack in a car that Walker was driving
to Charlottesville. This evidence was sufficient to show that Walker
was a knowing participant in the conspiracy as both a supplier and a
distributer.

The evidence against Johnson and Chappell was also sufficient.
Hughes testified that Johnson, Kawan Palmer, and Chappell stayed in
her apartment in Charlottesville for a period of time. She stated that
she saw Johnson and Palmer handling cocaine in her apartment and
that she heard Johnson, Palmer, and Chappell discuss traveling to
New York to pick up crack to bring back to Charlottesville. She testi-
fied that she had been on such a trip to New York with Palmer and
that they had met up with Johnson while they were there. The testi-
mony of a codefendant, standing alone, can be sufficient to support
a conviction. United States v. Burns, 990 F.2d 1426, 1439 (4th Cir.
1993).

Mills testified that she had seen Chappell and Kawan Palmer cut-
ting cocaine in a motel room in Charlottesville for distribution. She
testified that she sold cocaine for Palmer on at least 25 occasions, but
she could have given the proceeds to either Palmer or Chappell
because their cocaine was "united" and they were "always" together.
She accompanied Palmer and Chappell to New York on two occa-
sions to purchase cocaine and have it sent it back to Charlottesville
through a woman on a bus. Another witness, Johnneen Young, testi-
fied that Chappell and Kawan Palmer had lived in her apartment for
a couple of months, and that she had heard Chappell and Palmer dis-
cuss making trips to New York "to get some drugs, come back down
here and sell it." She estimated that Chappell and Palmer traveled to
New York every other weekend. Both Johnson and Chappell were
arrested at the motel room registered to Palmer where police found
262.3 grams of crack below the room's open window.

11
The evidence is sufficient to show that Walker, Johnson, and Chap-
pell conspired with others to possess and distribute cocaine.

The appellants also claim that the evidence was insufficient to sup-
port their convictions for individual charges of possession with the
intent to distribute cocaine base. Johnson and Chappell challenge their
convictions for possession of the 262.3 grams crack found outside
their motel room. Before entering the motel room, a police officer
heard a toilet flush and a window open. Teele testified that before the
police entered he heard a toilet flush and saw Johnson come out of
the bathroom. Crack was found outside the bathroom window. Police
had observed the same window closed moments before the officer
entered the room. The circumstantial evidence was sufficient to allow
the jury to draw the inference that Johnson and Chappell were in con-
structive possession of the crack. See United States v. Nelson, 6 F.3d
1049, 1053 (4th Cir. 1993). The amount of crack found, 262.3 grams,
was large enough to infer that it was intended for distribution and not
for personal consumption. Id.

Chappell claims the evidence was insufficient to convict him of
possession with the intent to distribute cocaine. Mills testified that on
September 15, 1994, she went to a restaurant to sell cocaine for
Palmer while Chappell sat in the car. A police officer also identified
Chappell sitting in the car. The transaction was interrupted but was
later completed at a K-Mart. After the sale, Mills and Chappell went
into the K-Mart to shop. They then met Palmer in a movie theater
where Mills gave Palmer the proceeds from the sale. Mills testified
that Chappell was in the car because as far as drugs and money were
concerned, "everything that Kawan owned, it was Duala's too."

Mills testified that she had sold drugs for Kawan Palmer at least
25 times and that Palmer and Chappell jointly owned the drugs. Chap-
pell was present in the car at the restaurant and at the K-Mart where
the sale was completed. He was with Mills immediately after the sale
and was in the movie theater where the proceeds were turned over to
Palmer.

Walker was convicted of possession with the intent to distribute
cocaine base stemming from a November 10, 1994, incident at the
bus terminal in Charlottesville. Gwen Palmer was arrested on Novem-

12
ber 10, 1994, immediately after getting off a bus. Police found a pack-
age on her containing crack cocaine. Palmer testified that Walker had
given her the package of cocaine in New York to transport to Char-
lottesville by bus. Hughes testified that she and Walker were waiting
at the bus station to pick up Palmer. Police spotted Walker waiting in
the vehicle at the bus station. The evidence showed that the cocaine
began in the possession of Walker, and Walker was present to retrieve
it at the bus terminal before Gwen Palmer was arrested. The evidence
was sufficient to show constructive possession.

VII

The appellants claim that the judge erred by failing to define "rea-
sonable doubt" for the jury. The issue was not raised at trial, and there
was no error in the instruction. This circuit has counseled courts not
to define reasonable doubt because it often tends to confuse rather
than assist the jurors. United States v. Reives , 15 F.3d 42, 45-46 (4th
Cir. 1993).

VIII

Johnson claims that his sentence was improperly enhanced because
the government did not prove that the cocaine attributable to him was
in fact "crack" cocaine. He asserts that under the 1993 amendment to
U.S.S.G. § 2D1.1 and recent appellate court decisions, the enhance-
ment for "cocaine base" applies exclusively to"crack" cocaine, and
that the government failed to prove that the cocaine in question was
"crack." Johnson did not raise this issue at sentencing, so we review
only for plain error. United States v. Grubb, 11 F.3d 426, 440 (4th
Cir. 1993).

To support his position, Johnson cites cases from other circuits
where there was insufficient evidence that the cocaine in question did
not contain the chemical composition of crack as defined by U.S.S.G.
§ 2D1.1. United States v. Munoz-Realpe, 21 F.3d 375, 378 (11th Cir.
1994); United States v. James, 78 F.3d 851, 858 (3d Cir. 1996). In
this case there was no dispute at any time during the proceedings that
the cocaine in question was crack. The cocaine was referred to as "co-
caine base, a/k/a crack" throughout the indictment and was identified
as crack throughout the testimony of both lay and expert witnesses,

13
and during sentencing. Police detectives and codefendants repeatedly
described the cocaine in manner consistent with the physical appear-
ances of "crack." One detective referred to the cocaine as an "off
white chalky substance" and another described cocaine as a "white
rock-like substance." Johnson never objected to any of these descrip-
tions of the cocaine as crack.

Unlike the evidence in both Munoz-Realpe and James, the evidence
in this case is unambiguous--the record reveals no indication that the
cocaine attributed to Johnson was any form of cocaine base other than
crack. See United States v. Hall, 109 F.3d 1227, 1236 (7th Cir. 1997).
We find no plain error in the district court's enhancement of John-
son's sentence for trafficking cocaine base.

IX

We have considered the remaining arguments submitted by John-
son in his supplemental pro se brief and have found no reversible
error.

AFFIRMED

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