UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4517
WILLIAM ANDREW TAYLOR,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4518
STEVEN BLAKE DAVIS,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-97-40-A)
Argued: May 7, 1999
Decided: August 16, 1999
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Edward Jessee, JESSEE & READ, P.C., Abingdon,
Virginia; James Douglas Fleenor, Bristol, Virginia, for Appellants.
Steven Randall Ramseyer, Assistant United States Attorney, Abing-
don, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Abingdon, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
William Andrew Taylor and Steven Blake Davis (Defendants),
inmates at the Bland Correctional Center in Bland County Virginia,
were convicted of conspiring with Thomas Ray Lephew, a correc-
tional officer at the Bland Correctional Center, to distribute controlled
substances in violation of 21 U.S.C.A. § 846 (West Supp. 1999). On
appeal, Defendants make numerous challenges to their convictions
and sentences. Finding no reversible error, we affirm.
I.
In October of 1994, an agent of the Virginia Department of Correc-
tions, Bureau of Internal Affairs, provided information to Terry Vlug,
a United States Postal Inspector, indicating that Thomas Ray Lephew
was possibly receiving controlled substances through the mail and
then delivering them to inmates at the Bland Correctional Center. As
a consequence, Postal Inspector Vlug began to monitor the mail
received at a post office box rented by Lephew. Over a seven-week
period, five separate packages were delivered to Lephew's post office
box. After the packages' mailing labels were photocopied, three were
delivered and two were retained by Postal Inspector Vlug.
On January 24, 1995, Postal Inspector Vlug and an Internal Affairs
Agent interviewed Lephew at the Bland Correctional Center. Lephew
admitted renting a post office box for the purpose of receiving adult
material, but denied receiving any packages. Lephew was then shown
2
the two packages addressed to him, at which time he gave permission
for the packages to be opened. The first package held a baggie con-
taining green plant material, another baggie containing a powdery
substance, and ten yellow tablets. The second package contained a
telephone book. Four baggies containing white powder were discov-
ered in a cut-out section of the book.1
After being advised of his rights, Lephew expressed his desire to
tell the truth about the packages. Lephew then confessed that he had
been receiving packages containing drugs through the U.S. Mail for
approximately three years (since March of 1992). According to
Lephew, he delivered the drugs to William Andrew Taylor and Ste-
ven Blake Davis, inmates at the Bland Correctional Center. Lephew
stated that he had made at least one delivery per week to Taylor and
Davis and that he was paid $150 in cash for each delivery.
On October 8, 1997, a federal grand jury returned a four-count
indictment against Taylor, Davis, and Lephew. Count One charged
that all three conspired to distribute controlled substances in violation
of 21 U.S.C.A. §§ 841(a)(1) & 846 (West Supp. 1999). Count Two
charged Taylor with using the mail to facilitate the conspiracy in vio-
lation of 21 U.S.C.A. § 843(b) (West Supp. 1999). Counts Three and
Four charged Davis with using the mail for the same purpose in viola-
tion of 21 U.S.C.A. § 843(b). On November 12, 1997, Lephew
pleaded guilty to Count One pursuant to a written plea agreement.
On March 17, 1998, the U.S. Attorney's Office for the Western
District of Virginia filed an information as to Davis pursuant to 21
U.S.C.A. § 851 (West 1981), listing the previous convictions the
Government would rely upon for increasing Davis's sentence if he
was convicted. A jury trial was convened on March 20, 1998. Prior
to the presentation of evidence, the U.S. Attorney's Office moved for
the dismissal of Counts Two, Three, and Four. After the presentation
_________________________________________________________________
1 The substances from both packages were submitted to the U.S. Postal
Inspection Service Crime Laboratory for analysis. The first package con-
tained 3.41 grams of marijuana, ten diazepam tablets, and 1.16 grams of
a mixture containing d-methamphetamine. The second package con-
tained a total of 10.83 grams of cocaine powder.
3
of evidence, closing arguments, and deliberation, the jury found Tay-
lor and Davis guilty on Count One.
On July 6, 1998, Taylor and Davis were sentenced pursuant to the
drug trafficking guideline. See U.S. Sentencing Guidelines Manual
§ 2D1.1 (1997). At sentencing, the district court found that 242 kilo-
grams of marijuana were delivered to Taylor and Davis during the
course of the conspiracy. Due to the amount of drugs involved, Tay-
lor's and Davis's base offense levels were set at twenty-six. See
U.S.S.G. § 2D1.1(c)(7). Because the district court found that Taylor
committed perjury, his base offense level was increased an additional
two levels for obstruction of justice. See U.S.S.G. § 3C1.1.
With an adjusted offense level of 28 and a criminal history cate-
gory of III, Taylor's guideline range was 97-121 months. See
U.S.S.G. Ch.5, Pt.A. Finding that Taylor's criminal history category
did not adequately reflect the seriousness of his criminal history, the
district court departed upward pursuant to § 4A1.3, p.s. Specifically,
the district court noted that but for the consolidation of two prior con-
victions for violent felonies, Taylor would be considered a career
offender under § 4B1.1. As a career offender, Taylor's base offense
level would have been 37, see U.S.S.G. § 4B1.1, and, as a result, his
guideline range would have been 262-327 months, see U.S.S.G. Ch.5,
Pt.A. Taylor was sentenced to a term of 265 months imprisonment.
With an adjusted offense level of 26 and a criminal history cate-
gory of VI, Davis's guideline range was 120-150 months. See
U.S.S.G. Ch.5, Pt.A. Finding that Davis's criminal history category
did not adequately reflect the seriousness of Davis's criminal history
or the likelihood that he would commit future crimes, the district
court departed upward pursuant to § 4A1.3, p.s. After reviewing
Davis's lengthy criminal history, the district court concluded that
Davis should be considered a career offender under§ 4B1.1. As a
career offender, Davis's base offense level would have been 37, see
U.S.S.G. § 4B1.1, and, as a result, his guideline range would have
been 360 months to life, see U.S.S.G. Ch.5, Pt.A. Davis was sen-
tenced to a term of 480 months imprisonment. Defendants filed
timely notices of appeal.
On appeal, Defendants make numerous challenges to their convic-
tions and sentences. First, Defendants allege that the testimony of
4
Lephew should have been suppressed because it was made in
exchange for something of value in violation of 18 U.S.C.A.
§ 201(c)(2) (West Supp. 1999). Second, Defendants contend that the
evidence was insufficient to prove beyond a reasonable doubt that
they participated in a conspiracy to distribute drugs. Third, Defen-
dants challenge several of the district court's evidentiary rulings.
Fourth, Defendants argue that district court abused its discretion in
departing upward from the Sentencing Guidelines pursuant to
§ 4A1.3, p.s. Finally, Defendants contend that the district court erred
in calculating the weight of the drugs attributable to the conspiracy.
We address these claims in turn.
II.
Defendants first contend that their convictions should be reversed
on the ground that the Government offered leniency to Lephew in
exchange for his testimony. Defendants claim that this practice vio-
lates the federal bribery statute, 18 U.S.C.A. § 201(c)(2) (West Supp.
1999), which prohibits the giving of "anything of value" to a witness
because of his or her testimony. As support for their contention,
Defendants primarily rely upon United States v. Singleton, 144 F.3d
1343 (10th Cir. 1998), which held that any promise made by the Gov-
ernment to a witness in exchange for truthful testimony violates
§ 201(c)(2). That decision, however, has been vacated by the Tenth
Circuit. In fact, after rehearing the case en banc, the Tenth Circuit has
since held that § 201(c)(2) does not apply to the United States or an
Assistant United States Attorney functioning within the official scope
of the office. See United States v. Singleton , 165 F.3d 1297, 1300
(10th Cir. 1999) (en banc).
Notwithstanding the most recent decision of the Tenth Circuit,
Defendants continue to contend that § 201(c)(2) applies to the Gov-
ernment in the prosecution of criminal offenses. Specifically, Defen-
dants argue that the plain language of the statute permits no answer
but that it does. The Government, in contrast, counters that such a
reading is clearly wrong. Whether § 201(c)(2) applies to the Govern-
ment in the prosecution of criminal offenses is a legal question and,
therefore, subject to de novo review. See United States v. Hall, 972
F.2d 67, 69 (4th Cir. 1992) (noting that interpretation of a statute is
a purely legal question calling for de novo review).
5
The federal bribery statute provides, in pertinent part, as follows:
Whoever . . . directly or indirectly, gives, offers, or prom-
ises anything of value to any person, for or because of the
testimony under oath or affirmation given or to be given by
such person as a witness upon a trial . . . before any court
. . . shall be fined under this title or imprisoned for not more
than two years, or both.
18 U.S.C.A. § 201(c)(2). As the Tenth Circuit recently noted, Defen-
dants' interpretation of the statute is patently absurd:
When an assistant United States Attorney (AUSA) enters
into a plea agreement with a defendant, that plea agreement
is between the United States government and the defendant.
When an AUSA uses at trial testimony obtained through a
plea agreement or an agreement not to prosecute, he does so
as the government. An AUSA who, pursuant to the provi-
sions of the United States Sentencing Guidelines, moves for
a downward departure under § 5K1.1, does so as the govern-
ment.
Put into proper context, then, the defendant's argument is:
in a criminal prosecution, the word "whoever" in the statute
includes within its scope the United States acting in its sov-
ereign capacity. Extending that premise to its logical conclu-
sion, the defendant implies Congress must have intended to
subject the United States to the provisions of section
201(c)(2), and, consequently, like any other violator, to
criminal prosecution. Reduced to this logical conclusion, the
basic argument of the defendant is patently absurd.
Singleton, 165 F.3d at 1300 (citations and internal quotation marks
omitted). We find the Tenth Circuit's rationale persuasive. Based
upon the statute's purpose, it is clear that § 201(c)(2) was not
intended to apply to the United States or its attorneys. Accordingly,
we find this claim to be meritless.
III.
Next, Defendants contend that the evidence was insufficient to
prove beyond a reasonable doubt that they participated in a conspir-
6
acy to distribute drugs. When assessing the sufficiency of the evi-
dence of a criminal conviction on direct review,"[t]he verdict of a
jury must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942).
To prove a conspiracy to distribute controlled substances, the Gov-
ernment must establish: 1) an agreement to possess controlled sub-
stances with intent to distribute existed between two or more persons;
2) the defendant knew of the conspiracy; and 3) the defendant know-
ingly and voluntarily became a part of the conspiracy. See United
States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984). At issue here
is whether the Government established, beyond a reasonable doubt,
that Defendants intended to distribute the controlled substances that
they purchased from Lephew.
Evidence that Taylor distributed drugs was simply overwhelming.
In addition to Lephew's testimony, four inmates from the Bland Cor-
rectional Center testified that they either purchased drugs from Taylor
or paid for their drug purchases by sending money orders to Virginia
Taylor, Taylor's wife. We recognize, however, that not one witness
testified that he purchased drugs from Davis. Indeed, Lephew testified
that he never saw Davis distribute drugs to a third party. During delib-
erations, even the jury noted, in a letter to the district court, the
absence of any direct evidence that Davis distributed drugs:
Your Honor:
We are unclear whether we heard anyone testify [that]
they purchased drugs from Steven B. Davis. Could you
please clarify this for us.
Thank you
(J.A. at 502.)2
_________________________________________________________________
2 In response to the jury's question, the district court wrote to the jury
as follows:
All questions of fact are up to you, the jury. I am not permitted
to tell you what the facts are in the case.
7
Despite the absence of direct evidence that Davis personally dis-
tributed drugs, the evidence was sufficient to convict Davis of con-
spiring to distribute drugs. See Blumenthal v. United States, 332 U.S.
539, 557 (1947) (noting that by its very nature a conspiracy is clan-
destine and covert, thereby frequently resulting in little direct evi-
dence of such an agreement). A conspiracy generally is proved by
circumstantial evidence and the context in which the circumstantial
evidence is adduced. See Iannelli v. United States, 420 U.S. 770, 777
n.10 (1975). In fact, circumstantial evidence is sufficient to support
a guilty verdict even though it does not exclude every reasonable
hypothesis of innocence. See United States v. Jackson, 863 F.2d 1168,
1173 (4th Cir. 1989). If substantial evidence exists to support a ver-
dict, the verdict must be sustained. See Glasser , 315 U.S. at 80.
Lephew testified that Davis and Taylor considered themselves part-
ners, and that the partnership specifically contemplated the distribu-
tion of drugs to third parties. Indeed, both conclusions can be readily
drawn from Defendants' course of conduct. Although drugs were
mailed to Lephew both from friends of Davis and from friends of
Taylor, Lephew would deliver the drugs to either Defendant regard-
less of the drug's source. Similarly, Davis would pay Lephew for the
drugs even when the drugs were delivered to Taylor. As noted above,
there was overwhelming evidence that Davis's partner did, in fact,
sell drugs to third parties. Thus, that Davis did not sell any drugs is
of no import, the jury could infer Davis's intent to distribute from his
partnership with Taylor. See United States v. Burgos, 94 F.3d 849,
859 (4th Cir. 1996) (en banc) (holding that "a variety of conduct,
apart from selling narcotics, can constitute participation in a conspir-
acy sufficient to sustain a conviction").
In addition, Davis's intent to distribute may be inferred from the
amount of drugs he purchased over the course of the alleged conspir-
_________________________________________________________________
(J.A. at 502.) Although Davis makes much of the jury's question con-
cerning the lack of direct evidence, Davis does not dispute that circum-
stantial evidence is sufficient to support a guilty verdict. Because there
was sufficient circumstantial evidence of Davis's intent to distribute, the
jury's question to the district court is not evidence, as Davis claims, that
the jury harbored reasonable doubt as to his intent to distribute controlled
substances.
8
acy. See id. at 873 (noting that intent to distribute can be inferred
from the amount of drugs involved); United States v. Fisher, 912 F.2d
728, 730 (4th Cir. 1990) (finding that intent to distribute can be
inferred when the amount of the controlled substance is larger than
would be expected for personal use). Taylor and Davis purchased
over 240 kilograms of marijuana during the course of the charged
conspiracy. This amount is simply too large for personal consump-
tion, see, e.g., United States v. LaMarr , 75 F.3d 964, 973 (4th Cir.
1996) (holding that 5.72 grams of crack was consistent with distribu-
tion), especially given the context in which the drugs were purchased,
see, e.g., United States v. Damerville, 27 F.3d 254, 259 (7th Cir.
1994) (recognizing that what may be considered a small amount of
drugs on the street could be considered a large amount in prison).
Indeed, a defense witness testified that the cocaine found in the sec-
ond package, which was mailed to Lephew from one of Davis's
friends, could be broken down into approximately 125 units that
could be sold in prison for $50 a unit. A jury could infer from such
evidence that Davis intended to distribute the cocaine.
Because a rational trier of fact could have found that Taylor and
Davis possessed the drugs with the intent to distribute, the district
court did not err in denying their motions for judgment of acquittal.
See Burgos, 94 F.3d at 862, 873.
IV.
Next, Defendants challenge several of the district court's evidenti-
ary rulings. Specifically, Defendants argue that the district court erred
when it allowed the Government (1) to introduce evidence that Davis
had tested positive for marijuana use during the course of the conspir-
acy; (2) to introduce Davis's prior drug-related felony convictions; (3)
to introduce inmate visiting request forms; (4) to cross-examine sev-
eral of Taylor's witnesses on matters not raised during direct exami-
nation; (5) to introduce drugs and packages into evidence without
establishing a proper chain of custody; (6) to discuss a lab report that
was not properly introduced; and (7) to introduce the grand jury testi-
mony of three witnesses. We address these arguments in turn, keeping
in mind that a district court's evidentiary rulings are reviewed under
the narrow abuse of discretion standard. See United States v. Sanchez,
118 F.3d 192, 195 (4th Cir. 1997).
9
A.
First, Defendants argue that the district court erred when it allowed
the Government to introduce evidence that Davis had tested positive
for marijuana use during the course of the conspiracy. During the
course of the trial, a Government witness, Lieutenant George Hughes,
testified about the contents of an offense report that contained the
results of Davis's test for marijuana. Defendants objected to the testi-
mony only on the ground that Lieutenant Hughes did not conduct the
analysis of Davis's urine, and as such, his testimony was clearly hear-
say. See Fed. R. Evid. 802. Assuming that the evidence in question
should not have been introduced through Lieutenant Hughes, the error
was harmless. Taylor testified at trial that Davis had told him that he
tested positive for marijuana. Thus, the jury would have learned of
Davis's positive test without the introduction of the offense report.
B.
Next, Defendants argue that the district court erred when it allowed
the Government to introduce Davis's prior drug-related felony con-
victions. At trial, the Government introduced evidence that in 1979
Davis pleaded guilty to conspiracy to deliver controlled substances to
an inmate. Davis contends that the evidence of his prior crimes vio-
lated Rule 404(b) of the Federal Rules of Evidence. For the reasons
that follow, we disagree.
Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to
show action in conformity therewith." Fed. R. Evid. 404(b). Rule
404(b), however, does not end there. It expressly states that evidence
of other crimes, wrongs, or acts is admissible to prove "motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." Id. Moreover, it is well established that that
list "is illustrative rather than exclusionary." United States v. Powers,
59 F.3d 1460, 1464 (4th Cir. 1995); see also United States v.
Stockton, 788 F.2d 210, 219 n.15 (4th Cir. 1986) (noting that
impeachment is a proper use of "other crimes" evidence, even though
not listed in Rule 404(b)). In fact, by its own terms, Rule 404(b)
expressly only excludes evidence of other crimes, wrongs, or acts
when it is used to prove a defendant's bad character or to "show
10
action in conformity therewith." See, e.g. , Powers, 59 F.3d at 1464
(recognizing "Rule 404(b) as an inclusive rule, admitting all evidence
of other crimes or acts except that which tends to prove only criminal
disposition" (internal quotation marks omitted)).
Davis was charged with possession with intent to distribute. As
noted above, the Government had to prove that Davis intended to dis-
tribute the drugs that he purchased from Lephew. Davis's prior con-
viction for distributing drugs in prison, therefore, was proper evidence
of his intent. Accordingly, the district court did not abuse its discre-
tion when it allowed the Government to introduce Davis's prior drug-
related felony convictions.
C.
Defendants also contend that the district court erred by allowing
the Government to introduce into evidence inmate visiting request
forms, which listed Davis's visitors while he was housed at the Meck-
lenburg Correctional Center and Taylor's visitors while he was
housed at the Lunenburg Correctional Center. Defendants argue on
appeal that the forms were both hearsay and not relevant to the
offense charged and, therefore, inadmissible. We disagree.
First, the forms were introduced by Deborah Lockhart, an
employee of the Virginia Department of Corrections. Lockhart identi-
fied the forms as documents that were ordinarily maintained in the
course of business by the Virginia Department of Corrections. Thus,
the forms were admissible pursuant to the business records exception
to the hearsay rule. See Fed. R. Evid. 803(6).
Second, although the visitation request forms did not relate to the
Bland Correctional Center and were generated prior to the dates
alleged in the indictment, they were relevant to the charged offense.
Of the two packages that were intercepted by Postal Inspectors,
Lephew identified the package with a return address from Ridgeway
as having been sent by Taylor's friends, and the package with a return
address from Lynchburg as having been sent by Davis's friends. The
forms were introduced to establish that Davis had friends from
Lynchburg, and that Taylor had friends from Ridgeway. Thus, the
forms were in fact relevant to the pending charges.
11
D.
Next, Davis argues that the district court erred by allowing the
Government to cross-examine several of Taylor's witnesses as to
Davis when no questions were asked by Davis, and Taylor asked no
questions during direct examination about Davis. Defendants argue
that because the Government's cross-examination of Taylor's wit-
nesses did not relate to the subject matter of the direct examination,
the questioning violated Rule 611(b) of the Federal Rules of Evi-
dence. We disagree. As the Government notes, Davis appears to con-
cede that the evidence was admissible but argues that it should have
been introduced in the Government's case. As such, the cross-
examinations did not violate Rule 611, which provides, in pertinent
part, that "[t]he court may, in the exercise of discretion, permit
inquiry into additional matters as if on direct examination." Fed. R.
Evid. 611(b). Here, the district court simply permitted the Govern-
ment to inquire into additional matters as if on direct examination. As
such, there was no error.
E.
Next, Defendants contend that the district court erred when it
allowed the Government to introduce drugs and packages into evi-
dence without establishing a proper chain of custody. More particu-
larly, Defendants assert that the Government failed to identify any
marks or distinctive characteristics of the fungible exhibits, i.e., the
drugs, that would allow such exhibits to be properly identified with
any degree of certainty.
The "chain of custody" rule is found in Rule 901 of the Federal
Rules of Evidence, which provides, in pertinent part, as follows:
The requirement of authentication or identification as a con-
dition precedent to admissibility is satisfied by evidence suf-
ficient to support a finding that the matter in question is
what its proponent claims.
Fed. R. Evid. 901(a). Authentication or identification conforming
with the requirements of Rule 901 is satisfied by the testimony of a
12
witness with knowledge. Indeed, as this Court has pointed out, the
"`chain of custody' is not an iron-clad requirement, and the fact of a
missing link does not prevent the admission of real evidence, so long
as there is sufficient proof that the evidence is what it purports to be
and has not been altered in any material aspect." United States v.
Howard-Arias, 679 F.2d 363, 366 (4th Cir. 1982) (internal quotation
marks omitted).
Here, Postal Inspector Vlug testified that the drugs introduced into
evidence were the same drugs taken from the two packages addressed
to Lephew. Moreover, Meade R. Drumgold, a forensic chemist with
the U.S. Postal Inspection Service, testified that the drugs introduced
into evidence, which were in sealed bags bearing his initials, were the
same drugs that he had evaluated. This testimony sufficed to establish
the requisite chain of custody. See United States v. Ricco, 52 F.3d 58,
61 (4th Cir. 1995) (holding that witness's identification of evidence
in sealed vial bearing his initials was sufficient to establish the neces-
sary chain of custody).
F.
At trial, Postal Inspector Vlug was allowed to testify from a lab
report that purported to establish the weight and nature of the drugs
found in the two packages. Defendants argue that district court erred
when it allowed Postal Inspector Vlug to testify as to the weight and
identity of the drugs because he had no personal knowledge of the
analysis summarized within the lab report, and, therefore, his testi-
mony was inadmissible hearsay. Again, any error was harmless.
Because the document from which Postal Inspector Vlug testified was
later properly introduced, without objection, it is very difficult to
imagine how Postal Inspector Vlug's reading of the document could
be reversible error.
G.
Finally, Defendants contend that the district court erred in allowing
the Government to introduce the grand jury testimony of three wit-
nesses: William Smith, William Falls, and Edward Mitchell.
13
1. William Smith
At trial, the Government called several of Davis's and Taylor's fel-
low inmates from the Bland Correctional Center as witnesses.
Although the first witness, Smith, had previously testified before the
grand jury, he invoked the Fifth Amendment during his trial testi-
mony when asked whether he had ever purchased drugs from Taylor.
Smith did state, however, that he told the truth during his grand jury
testimony. As a result, the Government asked Smith several questions
concerning his grand jury testimony. Among other things, Smith con-
firmed that he had told the grand jury that he had purchased marijuana
from "L.A." and as payment sent a money order to Virginia Taylor,
Taylor's wife. Smith was then cross-examined by Davis and Taylor.
Smith answered all of their questions.
First, Defendants argue that the introduction of Smith's grand jury
testimony was erroneous because Smith was not "unavailable" for
purposes of Rule 804. In the alternative, Defendants argue that even
if Smith was unavailable for purposes of Rule 804, his statement --
made during his grand jury testimony -- that he purchased drugs
while in prison was not admissible pursuant to Rule 804(b)(3) as a
statement against interest or pursuant to Rule 801(d)(2)(E) as a state-
ment of a coconspirator in furtherance of the conspiracy. Finally,
Defendants argue that the introduction of Smith's grand jury testi-
mony violated their Sixth Amendment right to confront witnesses.
Despite Defendants' contentions to the contrary, Smith's grand
jury testimony was not introduced into evidence. Rather, Smith was
asked if his answers to specific questions from the grand jury contin-
ued to be correct. His grand jury testimony was never read into the
record. Moreover, Smith was available for and was cross-examined
by defense counsel. Thus, Defendants' Sixth Amendment right to
confront Smith was simply not infringed.
2. William Falls and Edward Mitchell
At trial, William Falls and Edward Mitchell refused to answer any
questions despite an order of the district court to do so. As a result,
portions of their grand jury testimony were introduced into evidence
pursuant to Rule 804(b)(3). In Falls's grand jury testimony he stated
14
that he purchased marijuana from J.C. Martin and sent a money order
to Virginia Taylor as payment. Falls's criminal record was then intro-
duced into evidence. In Mitchell's grand jury testimony he stated that
he purchased marijuana from Taylor. His criminal record was also
introduced into evidence.
On appeal, Defendants first argue that the introduction of Falls's
and Mitchell's grand jury testimony was erroneous because neither
Falls nor Mitchell was "unavailable" for purposes of Rule 804. In the
alternative, Defendants argue that even if Falls and Mitchell were
unavailable for purposes of Rule 804, their statements -- made during
their grand jury testimony -- that they had purchased drugs while in
prison were not admissible pursuant to Rule 804(b)(3). Finally,
Defendants argue that the introduction of Falls's and Mitchell's grand
jury testimony violated their Sixth Amendment right to confront wit-
nesses. We address these arguments in turn.
a.
Rule 802 of the Federal Rules of Evidence provides that hearsay
is not admissible into evidence except as provided by law, and Rule
804 provides exceptions to Rule 802 when the declarant is unavail-
able as a witness. Despite Defendants' contentions to the contrary, we
conclude that both Falls and Mitchell were "unavailable" for purposes
of Rule 804. Rule 804 defines "unavailability" as follows:
Unavailability as a witness includes situations in which the
declarant . . . persists in refusing to testify concerning the
subject matter of the declarant's statement despite an order
of the court to do so.
Fed. R. Evid. 804(a)(2). Because Falls and Mitchell refused to testify
after being ordered by the district court to do so, they were unavail-
able under Rule 804(a)(2). Cf. United States v. Bumpass, 60 F.3d
1099, 1102 (4th Cir. 1995) (holding that the declarant "was unavail-
able, having asserted his constitutional privilege against self-
incrimination").
b.
A statement is against interest if, "at the time of its making[, it] . . .
so far tended to subject the declarant to civil or criminal liability . . .
15
that a reasonable person in the declarant's position would not have
made the statement unless believing it to be true." Fed. R. Evid.
804(b)(3). Moreover, as the Supreme Court made clear in Williamson
v. United States, 512 U.S. 594, 603 (1994),"[e]ven statements that are
on their face neutral may actually be against the declarant's interest."
Again, despite Defendants' contentions to the contrary, Falls's and
Mitchell's statements were adverse to their penal interests. Both
admitted to buying drugs while in prison. A statement made to a
grand jury admitting involvement in a criminal act, such as that made
by Falls and Mitchell, is adverse because of the potential for criminal
liability. See Bumpass, 60 F.3d at 1102. Because the statements actu-
ally subjected Falls and Mitchell to criminal liability, the district court
did not abuse its discretion by admitting the statements into evidence
pursuant to Rule 804(b)(3).
c.
Finally, Defendants contend that the admission of Falls's and
Mitchell's grand jury testimony violated their Sixth Amendment right
to confront witnesses. In Ohio v. Roberts, 448 U.S. 56 (1980), the
Supreme Court noted that a statement is admissible and does not vio-
late the Confrontation Clause where there is a necessity (i.e., the wit-
ness is unavailable) and the statement bears sufficient "indicia of
reliability" in that it falls within a "firmly rooted hearsay exception,"
or has "particularized guarantees of trustworthiness" such that "there
is no material departure from the reason of the general rule." Id. at 65-
66 (internal quotation marks omitted).
In Lee v. Illinois, 476 U.S. 530 (1986), the Supreme Court noted
that confessions made by co-conspirators have a rebuttable "presump-
tion of unreliability" and do not fall within a"firmly rooted" hearsay
exception. Id. at 543. In footnote 5, the Court also seemed to reject
a broad application of the statement-against-penal-interest exception
to allow the admissibility of confessions, observing that the "concept
defines too large a class for meaningful Confrontation Clause analy-
sis." Id. at 544 n.5. Whether statements against penal interest can
qualify as a firmly rooted hearsay exception as a class or whether
each statement must qualify through its particularized guarantee of
trustworthiness has divided the Circuit Court of Appeals since Lee.
16
Cf., e.g., United States v. Moses, 148 F.3d 277, 281 (3d Cir. 1998)
(declining to decide if firmly rooted), cert. denied, 119 S. Ct. 1047
(1999); United States v. Keltner, 147 F.3d 662, 671 (8th Cir.) (firmly
rooted), cert. denied, 119 S. Ct. 574 (1998); LaGrand v. Stewart, 133
F.3d 1253, 1268-69 (9th Cir.) (suggesting firmly rooted in dicta), cert.
denied, 119 S. Ct. 422 (1998); Neuman v. Rivers, 125 F.3d 315, 319
(6th Cir.) (firmly rooted), cert. denied, 118 S. Ct. 631 (1997); Earnest
v. Dorsey, 87 F.3d 1123, 1131 (10th Cir. 1996) (not firmly rooted);
United States v. Trenkler, 61 F.3d 45, 62 (1st Cir.1995) (assuming
firmly rooted); United States v. Matthews, 20 F.3d 538, 544-46 (2d
Cir. 1994) (declining to decide if firmly rooted); United States v.
Flores, 985 F.2d 770, 775-76 (5th Cir. 1993) (not firmly rooted);
United States v. York, 933 F.2d 1343, 1363 (7th Cir. 1991) (firmly
rooted). Indeed, this very question recently split the Supreme Court.
See Lilly v. Virginia, 119 S. Ct. 1887, 1898-99 (1999) (plurality opin-
ion) (plurality concluded that statements against penal interest do not
qualify as a firmly rooted hearsay exception as a class).
We need not decide whether Falls's and Mitchell's statements fall
within a "firmly rooted hearsay exception," or, for that matter,
whether their statements were admissible due to their particularized
guarantee of trustworthiness because even if the district court erred in
admitting the challenged statements into evidence, we conclude that
the error was harmless. See Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986) (holding that Chapman harmless error analysis applies to
Confrontation Clause errors). Since at least Chapman v. California,
386 U.S. 18 (1967), an otherwise valid conviction should not be set
aside if the constitutional error was harmless beyond a reasonable
doubt. Id. at 24. Whether an error is harmless beyond a reasonable
doubt depends upon several factors. We consider, among other things,
the importance of the witnesses' testimony in the Government's case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witnesses
on material points, and, of course, the overall strength of the Govern-
ment's case. See Van Arsdall, 475 U.S. at 684.
Here, the grand jury testimony of Falls and Mitchell was simply
not vital to the Government's case. In the portion of Falls's grand jury
testimony that was read into the record, Falls stated that he paid for
his drug purchases by sending money orders to Taylor's wife. The
17
Government, however, had already established, through the testimony
of Crystal Blain, manager of Global Express Money Orders, that pris-
oners at the Bland Correctional Center had sent Taylor's wife hun-
dreds of money orders during the course of the alleged conspiracy.
Moreover, both Smith and Lowell France testified that they sent Vir-
ginia Taylor money orders as payment for their drug purchases. In the
portion of Mitchell's testimony that was read into the record, Mitchell
stated that he purchased drugs from Taylor while in prison. At trial,
however, the Government established, through the testimony of
Lephew and France, that Taylor was selling drugs in prison.
In the end, we conclude that there was no real possibility that
cross-examination would have done "[s]erious damage to the strength
of the [Government's] case." Davis v. Alaska, 415 U.S. 308, 319
(1974). As noted above, Falls's and Mitchell's grand jury testimony
was corroborated by the Government's other witnesses. See Idaho v.
Wright, 497 U.S. 805, 823 (1990) (considering corroborating evi-
dence when engaging in harmless error review). Given the overall
strength of the Government's case, the presence of corroborating evi-
dence, and the insignificance of Falls's and Mitchell's testimony, we
conclude that any error in the admission of Falls's and Mitchell's
grand jury testimony was harmless beyond a reasonable doubt.
V.
Taylor and Davis also challenge their sentences. See U.S. Sentenc-
ing Guidelines Manual (1997). First, Defendants argue that the dis-
trict court abused its discretion in departing upward from the
Sentencing Guidelines pursuant to § 4A1.3, p.s. Next, Defendants
contend that the district court erred in calculating the weight of the
drugs attributable to the conspiracy. We address these claims in turn.
A.
Defendants first argue that the district court abused its discretion
in departing upward from the Sentencing Guidelines pursuant to
§ 4A1.3, p.s. A district court's decision to depart is reviewed for
abuse of discretion. See Koon v. United States , 116 S. Ct. 2035, 2043
(1996) ("[A]ppellate court[s] should not review the departure decision
18
de novo, but instead should ask whether the sentencing court abused
its discretion.").
Section 4A1.3, p.s. provides, in pertinent part, as follows:
If reliable information indicates that the criminal history cat-
egory does not adequately reflect the seriousness of the
defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes, the court may consider
imposing a sentence departing from the otherwise applicable
guideline range.
U.S.S.G. § 4A1.3, p.s. In promulgating § 4A1.3, p.s., the Sentencing
Commission has explicitly authorized an upward departure from the
otherwise applicable Guidelines range if a defendant's criminal his-
tory category does not adequately reflect his past criminal conduct. In
United States v. Wilson, 913 F.2d 136, 138-39 (4th Cir. 1990), this
Court made it clear that such departures are appropriate.
Here, Davis has a total of 26 criminal history points, 13 more than
the minimum required for a criminal history category of VI. This fact
alone establishes that Davis's criminal history category does not ade-
quately reflect his past criminal conduct. In addition, Davis had 25
prior convictions that received no criminal history points because
they, among other things, were too remote to be counted in the crimi-
nal history computation. See U.S.S.G. § 4A1.2(e). Of these uncounted
offenses at least one, a 1979 felony conviction for conspiring to
deliver drugs to an inmate, was similar to the instant offense. Given
the extent of Davis's criminal history, we cannot say that the district
court abused its discretion in determining that it should depart above
the guideline range pursuant to § 4A1.3, p.s.
Davis also contends that the district court abused its discretion in
departing to the extent that it did, and in failing to explain why a
lesser departure would not have been adequate. When a sentencing
court departs pursuant to § 4A1.3, p.s., the court typically must
address each sentencing category -- or, in this case, each offense
level -- and move to a higher one only after finding that each cate-
gory is inadequate to reflect the seriousness of the defendant's record.
See United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). Here,
19
after reviewing Davis's lengthy criminal history, the district court
concluded that Davis should be sentenced as a career offender under
§ 4B1.1. Davis contends that the district court, by failing to provide
specific reasons as to why each subsequent criminal offense level was
not appropriate, did not comply with the mandate of Rusher. For the
reasons that follow, we disagree.
In United States v. Cash, 983 F.2d 558, 562 (4th Cir. 1992), this
Court held that "[o]nce the district court determines that a departure
under U.S.S.G. § 4A1.3, p.s. is warranted and that the defendant's
prior criminal conduct is of sufficient seriousness to conclude that he
should be treated as a career offender, the district court may depart
directly to the guideline range applicable to career offenders similar
to the defendant." Id. at 562; see also United States v. Hines, 943 F.2d
348, 354-55 (4th Cir. 1991) (per curiam). Here, Davis's criminal
record, which includes prior convictions for, among other things,
murder and assault with a dangerous weapon, is of sufficient serious-
ness that he should be treated as a career offender. See U.S.S.G.
§ 4B1.1. Thus, the district court's decision to sentence Davis as a
career offender was in complete accord with this Court's holding in
Cash. As important, the district court's decision satisfies the mandate
of Rusher, as this Court specifically held that
analogizing to the career offender guideline provides a rea-
soned basis for the extent of the departure. When a district
court properly employs this approach, this determination
includes an implicit finding that each successive Criminal
History Category that would not produce a career offender
sentence inadequately represents the seriousness of the
defendant's criminal conduct. Therefore, we conclude that
level by level consideration is unnecessary under these cir-
cumstances.
Cash, 983 F.2d at 562.
Taylor's argument likewise lacks merit. Taylor had a robbery con-
viction that was consolidated with another robbery conviction. Had
the sentencing for these two offenses occurred independent of one
another, Taylor would have been classified as a career offender in the
instant case. As such, Taylor's situation is identical to the one faced
20
by this Court in Hines. In Hines, this Court affirmed a sentence
imposed when the district court departed upward under § 4A1.3, p.s.
and sentenced the defendant as a career offender because two of the
defendant's prior crimes of violence had been consolidated for sen-
tencing purposes and therefore did not constitute the two separate
predicate felony convictions required to qualify the defendant as a
career offender under § 4B1.3. Hines, 943 F.2d at 353-54 (citing
U.S.S.G. §§ 4A1.2(a), 4A1.2, comment. (n.3), and 4B1.2(3)). Other
circuits agree with this result. See United States v. Gonzales, 929 F.2d
213, 217-20 (6th Cir. 1991); United States v. Dorsey, 888 F.2d 79, 80-
81 (11th Cir. 1989). The same reasoning applies here. A departure to
the career offender guideline range is proper because Taylor's con-
duct qualifies him as a de facto career offender.
B.
Defendants also contend that the district court erred in calculating
the weight of the drugs attributable to the conspiracy. To give due
deference to a district court's application of the Sentencing Guide-
lines, we review factual determinations for clear error and legal ques-
tions de novo. See United States v. Blake, 81 F.3d 498, 503 (4th Cir.
1996).
Two of the packages that Lephew was to deliver to Davis and Tay-
lor were intercepted by Postal Inspectors. The first package contained
3.41 grams of marijuana, ten diazepam tablets, and 1.16 grams of a
mixture containing d-methamphetamine. The second package con-
tained a total of 10.83 grams of cocaine powder. In order to complete
the guideline computations in this case, the district court had to deter-
mine a total amount of illegal drugs associated to the conspiracy. To
do so, the district court converted the known drug amounts from the
last two packages into their marijuana equivalents in kilograms. See
U.S.S.G. § 2D1.1, comment. (n.10). Here, the drugs in question were
converted as follows:
3.41 grams of marijuana = .00341 kg. of marijuana
10 diazepam tablets = .00125 kg. of marijuana
1.16 grams of d-methamphetamine = 1.16 kgs. of marijuana
10.83 grams of cocaine = 2.16 kgs. of marijuana
21
The total of marijuana equivalents in the two packages, therefore, was
3.324 kilograms. The district court divided that number in half to
derive an average equivalent per package. Thus, the district court
determined that the average quantity of drugs in each package was
1.662 kilograms of marijuana. The district court multiplied this num-
ber by 146 weeks, the number of weeks that the conspiracy existed.
Under the district court's calculation, the total drug quantity attribut-
able to the conspiracy was 242 kilograms of marijuana.
On appeal, Defendants argue that the district court erred in finding
the average quantity of drugs in each package to be 1.662 kilograms
of marijuana. In particular, Defendants contend that the district court
inaccurately assumed the delivery of cocaine, d-methamphetamine,
and diazepam in every package delivered during the course of the
conspiracy, when the record would only support two deliveries of
cocaine and one delivery of d-methamphetamine and diazepam.
According to Defendants, the weekly deliveries, with rare exception,
only contained marijuana.
To be sure, the evidence on this matter, all of which came from
Lephew's testimony, is conflicting. When asked by the defense
whether he only received cocaine twice, Lephew answered in the
affirmative. Moreover, Lephew stated that he only delivered pills to
Davis and Taylor on one occasion. However, when asked by the Gov-
ernment if the drugs found in the first two packages were typical of
the packages he delivered each week, Lephew answered in the affir-
mative. In fact, Lephew specifically testified that the quantity of
cocaine in the second intercepted package was close to the amount he
usually received. Similarly, when asked during his grand jury testi-
mony about the delivery of cocaine, Lephew responded that it would
come maybe two or three times per month.
Based on Lephew's trial and grand jury testimony, we cannot say
that the district court's calculation as to the amount of cocaine and
marijuana in each package was clearly erroneous. Although there is
very little evidence that each package contained d-methamphetamine
or diazepam tablets, even if those two drugs had not been considered
by the district court, the total drug quantity attributable to Defendants
in the conspiracy would be over 100 kilograms of marijuana equiva-
lents. As a result, Defendants' base offense level would remain the
22
same. See U.S.S.G. § 2D1.1(c)(7) (base offense level of 26 for at least
100 kilograms but less than 400 kilograms of marijuana). Thus, any
error was harmless.
VI.
For the foregoing reasons, Defendants' convictions and sentences
are affirmed.
AFFIRMED
23