UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4452
RAYMOND J. STEWART,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-96-123-1)
Submitted: March 2, 1999
Decided: April 12, 1999
Before HAMILTON, NIEMEYER, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
John Robert McGhee, Jr., KAY, CASTO, CHANEY, LOVE &
WISE, Charleston, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, Miller A. Bushong III, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Raymond J. Stewart appeals from his conviction and sentence
imposed for conspiring to distribute and possess with intent to distrib-
ute methamphetamine, in violation of 21 U.S.C. § 846 (1994). On
appeal, he contends that the district court erred by (1) denying his
motion to strike two jurors for cause; (2) allowing into evidence testi-
mony concerning drug dealings which preceded the date of the con-
spiracy as charged in the indictment; (3) allowing into evidence
statements of a coconspirator; (4) denying his motion for judgment of
acquittal; (5) calculating the base offense level under the Sentencing
Guidelines; and (6) allowing the testimony of a government witness
who, in his plea agreement, had been offered immunity in exchange
for his testimony. Stewart, acting pro se, has filed a number of
motions. We deny his motions to relieve counsel, to strike the appeal
brief filed by counsel, and to proceed pro se. We deny counsel's
motion to withdraw, and we grant Stewart's motion for leave to file
a pro se supplemental brief. In his pro se supplemental brief, Stewart
argues that the district court erred in denying his motion for judgment
of acquittal where all of the evidence against him was introduced
from witnesses who received something of value in exchange for their
testimony. Stewart also raises the additional issue that it was plain
error for the district court to sentence him using the 1997 edition of
the U.S. Sentencing Guidelines Manual. Upon review of the issues
raised by counsel and by Stewart, we affirm Stewart's conviction, but
vacate his sentence and remand for resentencing using the 1994 ver-
sion of the Sentencing Guidelines.
I.
The federal grand jury returned an indictment charging Stewart
with one count of knowingly conspiring to distribute and to possess
with intent to distribute methamphetamine. The indictment alleged
2
that the conspiracy occurred from approximately March 1994 to Sep-
tember 1995.
Stewart met Robert Jarvis in late 1992. Around that time, or in
early 1993, Jarvis received a gram of methamphetamine through the
mail from Richard Roll in California. Jarvis kept half a gram and sold
the other half to Stewart for $50. Throughout 1993, Jarvis continued
to receive methamphetamine, totaling about two pounds, from Roll.
Jarvis fronted to Stewart approximately one and one-half pounds of
the methamphetamine he received from Roll.
In January 1994, Jarvis began to obtain methamphetamine in the
mail from Anthony Compton. The total amount he received from
Compton was about twenty pounds. Jarvis gave Stewart approxi-
mately two pounds of the methamphetamine he received from Comp-
ton.
Officials learned of Robert Jarvis' activities through the use of a
confidential informant. They further learned that Raymond Stewart
was one of the local dealers who purchased methamphetamine from
Jarvis for redistribution. Stewart redistributed the methamphetamine
from Jarvis to Jack Clark, Steve Mullins, Timothy Sigman, and Lisa
Jarrett.
Following the presentation of evidence of this activity, the jury
found Stewart guilty of the conspiracy charge. The district court sub-
sequently sentenced Stewart to 188 months, followed by a five-year
term of supervised release. Stewart timely noted his appeal.
II.
Stewart first challenges the district court's decision to deny his
motion to strike two jurors for cause. We review such a decision for
an abuse of discretion, affording the district court wide latitude. See
Person v. Miller, 854 F.2d 656, 665 (4th Cir. 1988). Where the issue
concerns the bias of a juror, special deference is given to the district
court's determination of the credibility of the juror's statement as to
whether he can be impartial. See Patton v. Yount , 467 U.S. 1025,
1038 (1984).
3
During voir dire, the district court judge asked the members of the
jury panel whether they or any member of their immediate families
were employed as a law enforcement officer. One juror, Nancy
Plantz, responded that she worked for the West Virginia State Police
in a data processing and communications position for twenty years
and her ex-husband was a West Virginia State Trooper. Plantz stated
that she could be fair and impartial notwithstanding her association
with the state police. Another juror, Rhonda Dingess, reported that
her husband had been a police officer for the City of Chapmanville,
West Virginia, for six years. Dingess also stated that she could be fair
and impartial notwithstanding her husband's occupation.
Stewart's counsel requested additional voir dire of these two jurors
concerning whether they would be biased in favor of law enforcement
witnesses, but none was made. Counsel then moved to strike Dingess
and Plantz for cause. The district court denied this motion. Stewart's
counsel then exercised two preemptory strikes to remove these two
jurors from the panel. The district court apparently determined that
Dingess and Plantz were credible in their statements that despite their
association with law enforcement agencies, they could be fair and
impartial. We find no abuse of discretion by the district court in deny-
ing Stewart's motion to strike for cause. See United States v.
LaRouche, 896 F.2d 815, 830 (4th Cir. 1990) (no per se exclusion for
potential jurors with law enforcement associations). Moreover, the
district court's failure to conduct additional voir dire as to bias in
favor of law enforcement witnesses was harmless. The government
presented no law enforcement witnesses on the issue of Stewart's
involvement in the conspiracy. The only law enforcement witness was
the case agent, whose testimony concerned Stewart's flight and fail-
ure to appear for the scheduled trial.
III.
Stewart also challenges the admission of testimony concerning
drug dealings which preceded the date of the conspiracy charged in
the indictment. The district court is afforded broad discretion in deter-
mining whether to admit evidence. Such a decision will not be
reversed unless it was the result of an abuse of this discretion. See
United States v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997).
4
Three days before the start of the trial, the government filed a "No-
tice of Federal Rule of Criminal Procedure 404(b) Evidence" inform-
ing Stewart's counsel that the government intended to introduce
evidence that Stewart began dealing methamphetamine before the
March 1994 date charged in the indictment as the beginning of the
conspiracy. Although Stewart argued that the notice was untimely and
that the evidence was cumulative, irrelevant, and that the probative
value was outweighed by the prejudicial effect to Stewart, the district
court allowed the evidence. We find no abuse of discretion in this
decision. As the government argued, such evidence was not techni-
cally of a "prior bad act" but rather furnished part of the context of
the crime. See United States v. Smith, 446 F.2d 200, 204 (4th Cir.
1971). Also, the government asserted that the evidence was so intrin-
sic to the charged offense that it was not admitted to establish bad
character. See United States v. Chin, 83 F.3d 83, 87-88 (4th Cir.
1996); see also United States v. Kennedy, 32 F.3d 876, 886 (4th Cir.
1994) (evidence of criminal conduct occurring months before charged
conspiracy admissible without recourse to Rule 404(b)).
IV.
Stewart next argues that the district court erred in admitting Lisa
Jarrett's testimony about statements made by Linda Adkins. Stewart
contends that this constituted inadmissible hearsay. The factual find-
ings as to whether statements are admissible as a co-conspirator's
statements under Fed. R. Evid. 801(d)(2)(E), are reviewed for clear
error, and the admission of such statements are reviewed for abuse of
discretion. See United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir.
1992).
During its case-in-chief, the government called as a witness, Lisa
Jarrett, who was originally a named co-defendant in the indictment
against Stewart. Jarrett testified concerning her knowledge of Stew-
art's involvement in the conspiracy. Jarrett testified that she learned
that Stewart was involved with methamphetamine from Linda
Adkins, who informed Jarrett that she was getting her methamphet-
amine from Stewart. Over Stewart's hearsay objection, the district
court allowed this testimony. The court found that Adkins was a co-
conspirator with Stewart during the relevant time period. Therefore,
Adkins' statements made in the course of and in furtherance of the
5
conspiracy were not hearsay. This factual determination is not clearly
erroneous, and the district court did not abuse its discretion in allow-
ing this evidence. See Blevins, 960 F.2d at 1255.
V.
Stewart's next argument is that the district court erred in denying
his motion for judgment of acquittal, in which he asserted that the evi-
dence showed multiple conspiracies, rather than one conspiracy as
alleged in the indictment. When reviewing the denial of a motion for
acquittal, this court must determine whether, viewing the evidence in
the light most favorable to the government, there is substantial evi-
dence to support a finding of guilt beyond a reasonable doubt. See
United States v. Stockton, 788 F.2d 210, 218 (4th Cir. 1986); United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
While, as Stewart contends, the evidence could support a finding
of more than one conspiracy, the evidence also supported a finding
of a single conspiracy. Viewing the evidence in the light most favor-
able to the government, see Tresvant, 677 F.2d at 1021, the district
court properly found that the evidence was sufficient to support a
finding of guilt on the single conspiracy charged in the indictment.
We find no error in this ruling.
VI.
At sentencing, Stewart objected to the sufficiency and the credibil-
ity of the evidence used to determine the amount of methamphet-
amine attributable to him in the presentence report. Stewart also
requested that the court use a calculation of weight based on the
purity of the methamphetamine rather than the total weight of any
mixture. The district court overruled these objections and attributed
3.5 pounds or 1.5876 kilograms of methamphetamine to Stewart for
sentencing purposes, resulting in a base offense level of 34. Stewart
now argues that the district court erred in overruling his objections.
Jarvis testified that a conservative estimate of the amount of
methamphetamine he supplied to Stewart was 3.5 pounds. The district
court, at sentencing, found this testimony credible. While Stewart
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asserted that the amount should be less than that, he failed to state or
show what lesser amount should be attributed to him. Further, Stew-
art's contention that the purity of the methamphetamine should have
been used to calculate the amount of methamphetamine was properly
dismissed because the sentencing guidelines provide that the greater
of the two weights should be used. See USSG§ 2D1.1(c)(3), and note
(B) to the Drug Quantity Table. Finding no clear error in the district
court's findings as to the amount of methamphetamine attributed to
Stewart, see United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.
1994), we affirm Stewart's sentence.
VII.
During its case-in-chief, the government presented testimony from
witnesses who had entered into plea agreements with the United
States. Stewart did not object to these witnesses' testimony. Stewart,
relying on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998),
now contends that the government offered inducements--the immu-
nity agreements--to these witnesses in exchange for their testimony
in violation of 18 U.S.C. § 201(c)(2) (1994). In Singleton, the Tenth
Circuit held that any promise made by the government to a witness
in exchange for truthful testimony violates § 201(c)(2), and such testi-
mony should be suppressed. 114 F.3d at 1359. Rehearing the case en
banc, the Tenth Circuit rejected its initial decision in Singleton. See
United States v. Singleton, ___ F.3d ___, 1999 WL 6469 (10th Cir.
Jan. 8, 1999) (en banc). Because this court has not addressed whether
plea agreements with the United States can violate 18 U.S.C.
§ 201(c)(2), there is no clear violation of existing law as required for
reversal under the plain error standard of review. See United States
v. Olano, 507 U.S. 725, 732-36 (1993).
VIII.
In his pro se brief, Stewart also raises a claim under Singleton,
arguing that the district court erred in denying his motion for judg-
ment of acquittal where all of the evidence against him was intro-
duced from witnesses who received something of value in exchange
for their testimony. Because this court has not addressed this issue,
we find no plain error by the district court in failing to apply the ratio-
nale of Singleton. See Olano, 507 U.S. at 732-36.
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IX.
Stewart's final argument, also raised in his pro se brief, is that the
district court committed plain error by sentencing him using the 1997
edition of the U.S. Sentencing Guidelines Manual . Stewart's failure
to object during sentencing amounts to a waiver of his right to raise
this issue on appeal absent plain error. See Fed. R. Crim. P. 52;
United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996). To
reverse for plain error, this court must "(1) identify an error; (2) which
is plain; (3) which affects substantial rights; and (4) which `seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings.'" United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993)
(quoting United States v. Olano, 507 U.S. at 732-36).
The sentencing court should apply the guidelines which are in
effect on the date of sentencing. See USSG§ 1B1.11(a); United States
v. Hartzog, 983 F.2d 604, 608 (4th Cir. 1993). However, if use of the
Guidelines Manual in effect on the date of sentencing would violate
the Ex Post Facto Clause, the Manual in effect on the date of the com-
mission of the offense should be used. See USSG § 1B1.11(b)(1). The
ex post facto clause prohibits a law that aggravates the crime or
inflicts a greater punishment than the law annexed to the crime, when
committed. See Miller v. Florida, 482 U.S. 423, 431-32 (1987) (ex
post facto clause precludes use at sentencing of more punitive Florida
sentencing guideline amendment that took effect after date of
offense); United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir.
1990) (ex post facto clause prevented application of amended § 1B1.3
to defendant whose offense occurred prior to the effective date of the
amendment which increased punishment).
Effective November 1, 1997, section 2D1.1 of the guidelines was
amended to increase penalties for methamphetamine trafficking
offenses. The increase was accomplished by reducing by half the
quantity of methamphetamine which corresponded to each offense
level in the Drug Quantity Table. This change resulted in the 1.5876
kilograms of methamphetamine attributable to Stewart falling within
offense level 34, where prior to the amendment, this quantity resulted
in offense level 32. Compare U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(3) (1997) with U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(4) (1994). This error seriously affects Stewart's substan-
8
tial rights because the higher offense level caused Stewart to be sen-
tenced to a longer prison term. Also, sentencing a defendant under the
wrong guideline range affects the fairness, integrity, and public repu-
tation of judicial proceedings. Because Stewart's sentence is
improper, resentencing is necessary. See Olano , 507 U.S. at 732; see
also Ford, 88 F.3d at 1356. Accordingly, we vacate Stewart's sen-
tence and remand for resentencing. On remand, the district court
should apply the 1994 version of the guidelines, including the distinc-
tion in the guidelines between d-methamphetamine and l-
methamphetamine, which existed prior to the November 1, 1995
amendments.
X.
In conclusion, we affirm Stewart's conviction, but vacate his sen-
tence and remand for resentencing under the version of the guidelines
in effect on the date of the commission of the offense. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
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