US v. Calvin Savoy

Filing 920090306

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4074

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CALVIN IGNATIOUS SAVOY, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05cr-00415-AMD-4)

Argued:

January 30, 2009

Decided:

March 6, 2009

Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part and vacated unpublished per curiam opinion.

and

dismissed

in

part

by

ARGUED: Ansley Claire Tillman, KING & SPALDING, L.L.P., Washington, D.C., for Appellant. Andrea L. Smith, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Bradley H. Cohen, Gary G. Grindler, KING & SPALDING, L.L.P., Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Matthew Jeweler, Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Calvin Savoy was arrested, indicted, and convicted on

charges of conspiring to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846, and using a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Savoy was sentenced on the conspiracy

charge to a mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) and sentenced on the firearm charge to a mandatory minimum, consecutive sentence Savoy of 10 years arguing under the 18 U.S.C. §

924(c)(1)(A)(iii).

appeals,

Government's

evidence at trial was insufficient as a matter of law to prove that he knowingly joined a conspiracy or that his firearm use occurred during and in relation to a drug-trafficking crime. Savoy also contends the district court erred in instructing the jury, improperly admitted the evidence statutory of another crime, minimum and life

incorrectly sentence.

imposed

mandatory

For the reasons set forth below, we affirm the conspiracy conviction and sentence on that charge. However, because we

hold that the Government failed to prove that Savoy's firearm use occurred during and in relation to a drug-trafficking crime, we vacate his conviction and sentence on that charge.

3

I. In September 2005, Savoy was indicted with 6 co-defendants on a charge of conspiring to distribute and possess with intent to distribute 50 grams or more of cocaine base (i.e., crack cocaine), in violation of 21 U.S.C. § 846 ("Count One"). addition, Savoy was indicted individually on a count In of

possessing and discharging a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) ("Count Four"). Savoy pled not guilty and was tried

individually. To establish the existence of the conspiracy alleged in Count One, three indicted co-conspirators testified at trial

that Pioneer City, a housing complex in Anne Arundel County, Maryland, was an open-air drug market in which the members of the conspiracy cooperated to sell crack cocaine and prevent nonmembers from selling it. These witnesses testified that the

members of the conspiracy had a code of silence against speaking to the police and drove out drug dealers from other areas who attempted to enter the Pioneer City drug market. In addition,

when one co-conspirator ran out of crack cocaine, he would refer customers to another co-conspirator or other co-conspirators

would share their supply with him. To establish that Savoy was a member of the conspiracy, an unindicted co-conspirator, Fabian Gray, testified that Savoy had 4

been present when Gray sold crack cocaine.

Gray also gave Savoy

sufficient crack cocaine to restart his drug dealing business after Savoy was released from prison in 2004. Evidence also

indicated that Savoy participated in the November 2004 beating of Kevin Johnson in Pioneer City. Johnson was unable to

identify his assailants but Savoy's fingerprints were recovered from his Cadillac, which was stolen during the attack. The

Government argued that Johnson's beating was an example of the conspiracy's efforts to exclude outsiders from Pioneer City. To establish the firearm offense alleged in Count Four, witnesses testified that members of the conspiracy were present at a September 2004 birthday party held at a nightclub near Pioneer City. Savoy was seen and photographed brandishing a Individuals from Annapolis, where a A

handgun during the party.

rival drug gang operated, were also present at the party.

fight broke out and spread outside, where Officer William Hicks observed "pockets of people fighting" in the parking lot. While

attempting to break up the various fistfights, Hicks heard and saw an unidentified black male firing shots into the air. pursuing that suspect, Hicks was shot in the right While arm.

Witnesses identified Savoy as the shooter.

Though there was no

evidence that drugs were distributed or even present during the party, the Government argued that Savoy shot Hicks to impress

5

the

conspiracy's

rivals

from

Annapolis

and

deter

them,

and

police, from interfering with the Pioneer City drug market. At the conclusion of the evidence, Savoy entered a motion for judgment of acquittal under Rule 29 challenging the

sufficiency of the evidence on both counts.

The district court On

denied the motion and the case was submitted to the jury.

the final day of its deliberations, the jury sent a question to the court: "Clarify how the drugs charges should relate to the During the trial This would be

defendant's association with the conspiracy?

there was a statement by the judge about this.

the charges which occurred during the timeframe of 2002-2005." (J.A. 300.) The court, without consulting counsel, responded "Dear Jury: Your question is unclear. (J.A. 301.) The jury

with its own note:

Please attempt to clarify your question."

did not reply but found Savoy guilty on both counts and entered special verdicts that the amount of crack cocaine involved in the conspiracy relating to Count One was 50 grams or more and that the firearm relating to Count Four had been discharged. The court informed counsel of the jury's question when

counsel were recalled to receive the jury's verdict. summarized the event, offered to show the notes,

The court and asked

counsel, "[A]nybody have any concerns or questions?" party objected. (J.A. 301-02.)

Neither

6

The

Probation report,

Office which

subsequently included to 5

prepared prior

Savoy's

pre-

sentencing convictions. convictions: at the

state of

criminal two drug

Savoy

objected

the

inclusion

one from 1994 (K950039), because he was under 18 of the offense, and one from 1997 (K9700895), Savoy

time

because it was classified a misdemeanor under state law. did not challenge that the inclusion had at of a third two drug

conviction. felony drug

Finding

Savoy

least

prior

convictions and relying on the jury's special verdict that the conspiracy district involved court 50 grams the or more of cocaine life base, the

imposed

mandatory

minimum

sentence

required by 21 U.S.C. § 841(b)(1)(A) on Count One. the jury's and special in verdict to that a Savoy discharged

Relying on a firearm the

during

relation

drug-trafficking

offense,

district court also imposed the mandatory minimum, consecutive sentence of 10 years required by 18 U.S.C. § 924(c)(1)(A)(iii) on Count Four. have Savoy filed a timely notice of appeal and we under 28 U.S.C. § 1291 and 18 U.S.C. §

jurisdiction

3742(a).

II. Savoy contends the Government's evidence is insufficient to prove that he knowingly and voluntarily joined any conspiracy to distribute crack cocaine or to prove that he shot Officer Hicks 7

during and in relation to a drug-trafficking offense.

Savoy

also argues that the district court should not have admitted evidence of Kevin Johnson's beating under Rule 404(b) of the Federal Rules of Evidence and that it erred in failing to

clarify its jury instructions in response to the jury's note on the last day of deliberations. district court improperly Finally, Savoy argues that the the mandatory minimum life

imposed

sentence required by 21 U.S.C. § 841(b)(1)(A) because the 50 grams of crack cocaine found by the jury to be involved in the conspiracy should not have been attributed to Savoy and because the district court improperly considered his 1994 and 1997 state drug convictions.

A. We first consider Savoy's argument that the evidence was insufficient conviction to is support appealed his on convictions. the ground that When the a criminal underlying

evidence is insufficient, we review the evidence in the light most favorable to the Government to determine whether "any

rational trier of fact could have found the essential elements of the crime 523 beyond F.3d a reasonable 422 (4th doubt." Cir. United States v.

Abuelhawa, States banc)). v.

415, 94

2008) (4th

(citing Cir.

United (en

Burgos,

F.3d

849,

862-63

1996)

8

1. In order to prove conspiracy to distribute and possess cocaine base with intent to distribute, the government [must] establish beyond a reasonable doubt that: "(1) an agreement" to distribute and "possess . . . with intent to distribute existed between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy." United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008) (quoting Burgos, 94 F.3d at 857). Savoy argues that the

evidence does not establish that he knew of any conspiracy or knowingly cocaine. entered into any agreement to distribute crack

We disagree. "a conspiracy is clandestine and covert," it

Because

"generally is proved by circumstantial evidence and the context in which the circumstantial evidence is adduced." F.3d at 857. development Burgos, 94

"A conspiracy, therefore, may be inferred from a and collocation of circumstances." Id. at 858

(internal quotation marks omitted). shown to exist, "the evidence need

Once a conspiracy has been only establish a slight

connection between the defendant and the conspiracy to support conviction." Id. at 861 (internal quotation marks omitted).

"[F]requently . . . contemporary drug conspiracies . . . result[] in only a loosely-knit association of members linked only by their mutual interest in sustaining the overall

enterprise of catering to the ultimate demands of a particular

9

drug consumption market . . . ." F.3d 1044, 1054 (4th Cir. 1993).

United States v. Banks, 10 Witnesses, including several

of the alleged co-conspirators, testified at Savoy's trial that at the time of his arrest the Pioneer City housing complex was an open-air drug market in which drug dealers conspired to sell crack cocaine, protect each other from police investigation,

maintain the market for crack cocaine sales by sharing supplies or referring customers, and excluding non-members. While Savoy

argues that he had no knowledge of the conspiracy and never agreed to join it, Gray testified that Savoy knew he sold drugs and that Savoy later accepted drugs from Gray given for the express purpose of re-establishing Savoy in the business of

selling crack cocaine in Pioneer City following his release from prison. Other evidence showed that, in a drug market where members of the conspiracy excluded non-members, Savoy was permitted to sell drugs and had amicable relations with co-conspirators. For

example, three co-conspirators testified that Savoy sold drugs in Pioneer City and Savoy was arrested in September 2004 for an open alcohol container violation when officers caught him

drinking beer with two co-conspirators.

A search subsequent to

that arrest led to the discovery of eight bags of crack cocaine in Savoy's pocket. Savoy also had crack cocaine in his

possession in Pioneer City at the time of his arrest on the 10

charges in the case at bar.

Finally, the evidence of Savoy's

participation in the beating of Kevin Johnson indicates not only that Savoy was accepted by the conspiracy as one of its members-because the conspiracy allowed him to sell crack cocaine in Pioneer City--but that Savoy actively furthered its goal of

excluding non-members even to the point of physical violence. We rational conclude jury's this evidence beyond is sufficient reasonable to doubt support that a a

finding

conspiracy to distribute and possess with intent to distribute existed among the crack cocaine dealers in Pioneer City, and that Savoy was a knowing and voluntary member of that

conspiracy.

Accordingly, we affirm his conviction on Count One.

2. To establish a violation of 18 U.S.C. § 924(c)(1), "the Government [must] prove: (1) [the defendant] used or carried a firearm (2) during and in relation to (3) a drug trafficking offense." United States v. Lipford, 203 F.3d 259, 265-66 (4th Cir. 2000). Government effect with "To meet the `in relation to' requirement, the must prove to that the the drug firearm has some purpose . . or .

respect

trafficking

crime[.]

[T]he gun at least must facilitate or have the potential of facilitating, the drug trafficking offense." Id. at 266

(internal quotation marks omitted) (ellipsis and alteration in 11

original).

Savoy argues that there is no evidence establishing

that the shooting of Officer Hicks occurred in relation to the drug conspiracy. We agree.

There is no evidence in the record that any drugs were present at the nightclub, that any drug transactions took place there, or that any activity relating to the conspiracy occurred. The Government argues that Savoy shot Officer Hicks to send a message to the police and rival drug dealers from Annapolis not to interfere in the Pioneer City drug market. However, while

witnesses testified that individuals from other areas were at the party and that the fight began with an altercation between someone from Pioneer City and someone from Annapolis, there is no evidence that any rival drug dealers were present. In short,

the record fails to establish that Savoy had the audience the Government contends he sought to impress. Similarly, there is

nothing but pure speculation that Savoy was in some theoretical way furthering the conspiracy when he shot a police officer

during a nightclub brawl. The Government had the burden to prove beyond reasonable doubt that Savoy i.e., used that a the firearm firearm in relation facilitated to or the had drug the

conspiracy,

potential to facilitate the conspiracy.

The Government did not

meet its burden and the district court erred in denying the motion for judgment of acquittal on that charge. 12 Accordingly,

we

vacate

Savoy's

conviction

and

sentence

on

Count

Four

and

dismiss that count of the indictment.

B. We next turn to Savoy's argument that the district court erred when it failed to supplement the jury's instructions in response to its note and when it admitted the evidence of Kevin Johnson's beating. Savoy did not preserve either issue with a E.g.,

timely objection at trial, so we review for plain error.

Taylor v. Virginia Union University, 193 F.3d 219, 239 (4th Cir. 1999) (failure to object to district court's response to jury question); United States v. Chin, 83 F.3d 83, 87 (4th Cir.

1996) (failure to object to admission of evidence under Rule 404). To prevail on plain error review, the defendant

must demonstrate (1) that an error occurred, (2) that the error was plain, and (3) that it affected his substantial rights. If the defendant satisfies these threshold requirements, correction of the error is within our discretion, which is appropriately exercised only when failure to do so would result in a miscarriage of justice, such as when the defendant is actually innocent or the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. United States v. Farrior, 535 F.3d 210, 222 n.4 (4th Cir. 2008) (internal quotation marks omitted) (alteration in original).

13

1. Savoy does not argue that the district court's response to the jury's note was an improper ex parte communication with the jury. Rather, he argues only that the response was insufficient Any response, or

to answer the question the jury's note posed.

lack of response, to a question from a deliberating jury is within the sound discretion of the trial court. v. Ellis, 121 F.3d 908, 925 (4th Cir. 1997). The district court responded to the jury's note by asking for clarification of its question. Savoy concedes that "[i]t is United States

difficult even now to unpack what the jury's particular question was." indicate (Reply that Br. the 14.) jury Savoy wanted to argues know that more the about note his could state

convictions, about his prior arrests, or whether the Government had to prove he sold drugs. Therefore, by all accounts, the

jury's note was unclear and we cannot fault the district court's exercise of its discretion to attempt to ascertain the precise issue on which the jury sought clarification before issuing any supplemental instructions. first prong of plain Savoy therefore fails to satisfy the error review because he has not

demonstrated that an error occurred. continued its deliberations and

Moreover, because the jury a verdict without

returned

further instruction, Savoy has not demonstrated how the district

14

court's response affected his substantial rights. has not shown plain error on this issue.

Savoy simply

2. Savoy argues that the district court erred in admitting evidence of the assault on Kevin Johnson because "[t]he only purpose of this testimony was to portray Mr. Savoy's character in a negative light," in violation of Federal Rule of Evidence 404(b). 1 (Br. Appellant 37.) Admission or exclusion of evidence

under Rule 404(b) is within the discretion of the trial court. United States v. Jackson, 327 F.3d 273, 298 (4th Cir. 2003). The Government contends "the beating . . . was an act

committed in furtherance of the Pioneer City drug conspiracy" because "[t]he intimidation and physical assault of outsiders was, as alleged in the by indictment, the a specific to method of the

operation

utilized

conspirators

protect

conspiracy. . . .

[T]he Pioneer City conspiracy depended on its

ability to exclude others--if necessary through physical force." (Br. Appellee 38.)

Savoy also argues for the first time in his reply brief that the evidence should not have been admitted because its prejudicial effect outweighed its probative value in violation of Rule 403. We do not consider arguments raised for the first time in a reply brief. See United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008).

1

15

The Government established through the testimony of Savoy's co-conspirators that the conspiracy did in fact endeavor to

exclude outsiders from the Pioneer City area.

The Government

then introduced the evidence of Kevin Johnson's beating, and Savoy's role in the beating, to link Savoy to the conspiracy and its effort to protect its turf. We see no abuse of discretion

in the district court's decision to admit the evidence for that purpose and Savoy has failed to meet his burden of proving an error occurred. We find no reversible error on this issue.

C. Finally, Savoy argues the district court erred by imposing the mandatory minimum life sentence required by 21 U.S.C. §

841(b)(1)(A). Savoy's three

The district court imposed the sentence based on prior state drug convictions and the jury's

special verdict that 50 grams or more of crack cocaine were involved in the conspiracy. At sentencing, Savoy challenged the

inclusion of a 1994 conviction (K950039) on the ground that he was a minor at the time of the offense and a 1997 conviction (K9700895) on the ground that it was classified as a misdemeanor under state law. On appeal, Savoy concedes that the Supreme

Court's decision in Burgess v. United States, 128 S. Ct. 1572 (2008), forecloses his challenge to the 1997 conviction.

Together with an unchallenged 1995 conviction (K9501975), Savoy 16

clearly has at least two prior qualifying convictions, and we need not reach his challenge to the inclusion of the 1994

conviction. Savoy now argues, however, that the district court erred in attributing to him all 50 grams or more of crack cocaine found by the jury to have been involved in the conspiracy. 2 This issue

was not raised below and is therefore subject to plain error review. (4th E.g., United States v. Pendergraph, 388 F.3d 109, 113 2004) (failure to raise objection at sentencing

Cir.

hearing). In United States v. Collins, 415 F.3d 304 (4th Cir. 2005), we held that the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), required a jury to find beyond reasonable doubt the amount of crack cocaine attributable to each specific defendant involved in a drug conspiracy. at 314. 415 F.3d

The jury's finding may be based on evidence (1) that

the individual defendant himself distributed an amount of crack cocaine or (2) that other members of the conspiracy did so, and their
2

actions

were

reasonably

foreseeable

to

the

individual

Savoy does not argue that the evidence is insufficient to establish that 50 grams or more of crack was involved in the conspiracy. He concedes that the Government introduced evidence that members of the conspiracy collectively possessed 97.44 grams. (Br. Appellant 43.) Rather, he argues that the district court improperly attributed 50 grams or more of this total to him for sentencing purposes.

17

defendant.

Id. at 311.

A district court must not impose a

sentence under § 841(b) based on a jury's finding of the amount attributable to the conspiracy generally. Id. at 314. In

United States v. Foster, 507 F.3d 233 (4th Cir. 2007), we held that a district court's failure to comply with Collins by

instructing the jury to make individualized findings constitutes reversible plain error. 3 Id. at 251-52.

There is no evidence in the record that Savoy personally distributed 50 grams or more of crack cocaine. Consequently,

"for the statutory maximums and mandatory minimums of § 841(b) to apply . . . the jury must determine that the threshold drug amount was reasonably foreseeable to the individual defendant." Brooks, 524 F.3d at 558 (quoting Foster, 507 F.3d at 250-51) (internal quotation marks omitted). In Collins, the district court instructed the jury that "[t]he amount of drugs applies to the entire group of

conspirators.

In other words, it's a conspiracy to distribute

Foster was tried jointly with two co-defendants and all of them received life sentences under § 841(b). Foster's codefendants also received life sentences arising from 18 U.S.C. § 924(j). We determined that the district court's § 841(b) sentencing error had no effect on the co-defendants and declined to reverse their sentences. However, because Foster had not been sentenced to life imprisonment under any other charge, the life sentence improperly imposed under § 841(b) was necessarily prejudicial and required reversal under the plain error standard of review. Id. at 251-52.

3

18

50 grams or more of crack cocaine.

That's what the charge is. 415

So the amount applies to the conspiracy, to the group." F.3d at 311.

In Foster, "the district court instructed the jury

to determine . . . the amount of crack cocaine `involved in the conspiracy.'" 507 F.3d at 249. In Brooks, the district court

instructed the jury "that `the amount of controlled substances you will need to determine . . . is not the amount a single defendant may have been involved with, but rather the amount of controlled substances involved in the conspiracy as a whole.'" 524 F.3d at 557 (ellipsis in original). distinguishable from the one before us. The district court in this case specifically instructed the jury to find an amount of crack cocaine individually These cases are clearly

attributable to Savoy, whether he personally distributed it or possessed it with intent to distribute or whether the

distribution or possession with intent to distribute by his coconspirators was reasonably foreseeable to him: A special verdict form, which you will see in a moment, ladies and gentlemen, will be given to you on which if you find the government has proven the defendant's membership in the charged conspiracy beyond a reasonable doubt you must use to determine the quantity of drugs attributable to Mr. Savoy. . . . . In determining what quantity of controlled substance is attributable to the defendant, if any, you should consider the following factors: First, the defendant is accountable for the quantity of drugs which he personally distributed or possessed with intent to distribute[;] 19

Second, the defendant is also accountable for any quantity of drugs which he attempted to or planned to distribute or possess with intent to distribute. Specifically, the defendant is accountable for those drugs even if those drugs were never actually obtained or distributed, so long as an objective of the conspiracy was for the defendant to distribute or possess with intent to distribute such a quantity of drugs; Third, the defendant is also accountable for any quantity of drugs which another member of the conspiracy distributed or possessed with intent to distribute as part of the conspiracy, so long as it was reasonably foreseeable to the defendant, Mr. Savoy, that such a quantity of drugs would be involved in the conspiracy which he joined; Fourth and finally, the defendant is also accountable for any quantity of drugs which another member of the conspiracy attempted to or planned to distribute or possess with intent to distribute, so long as it was reasonably foreseeable to the defendant, Mr. Savoy, that such a quantity of drugs would be involved in the conspiracy which he joined. The defendant is accountable for those drugs even if those drugs were never actually obtained or distributed by other members of the conspiracy, so long as an objective of the conspiracy was for the other members of the conspiracy to distribute or possess with intent to distribute such a quantity of drugs. Now, these last two rules apply even if the defendant did not personally participate in the acts or plans of his co-conspirators or even if the defendant did not have actual knowledge of those acts or plans, so long as those acts or plans were reasonably foreseeable to the defendant. The reason for this is simply that a co-conspirator is deemed to be the agent of all other members of the conspiracy. Therefore, all of the co-conspirators bear criminal responsibility for acts or plans that are undertaken to further the goals of the conspiracy. As I said a moment ago, your findings about the quantity of controlled substances attributable to the defendant will be noted on the verdict form, and I will send you that form shortly. (J.A. 288-90.) 20

These instructions, unlike those given in Collins, Foster, and Brooks, clearly direct the jury to make an individualized finding of the amount of crack cocaine involved in the

conspiracy attributable to Savoy, either because he personally distributed because it it was or possessed it with intent to to distribute that his or coto The

reasonably

foreseeable or

Savoy it

conspirators distribute.

distributed

it

possessed

with

intent

Accordingly, there is no Collins error here.

jury's special verdict that 50 grams or more of crack cocaine were involved in the conspiracy is an individualized finding specific to Savoy and the district court properly relied on it to impose the mandatory minimum life sentence required by §

841(b)(1)(A).

III. For the foregoing reasons, we affirm the judgment of the district court as to Count One, and vacate the judgment as to Count Four and dismiss that count of the indictment.

AFFIRMED IN PART AND VACATED AND DISMISSED IN PART

21