US v. Thomas Wackman

Filing 920100104

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4435

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS J. WACKMAN, a/k/a Reef, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:06-cr-00427-WDQ-5)

Submitted:

December 3, 2009

Decided:

January 4, 2010

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Thomas J. Wackman timely appeals the district court's judgment following a jury trial on one count of conspiracy to distribute and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 (2006). On appeal,

Wackman argues that: (1) the district court erred in denying his motion for a mistrial; (2) the district court erred in admitting hearsay testimony and evidence based on hearsay; and (3) the district court erred in enhancing his sentence. Finding no

reversible error, we affirm.

I. Wackman first argues that the district court erred in denying his motion for a mistrial for on a the basis that the

Government credibility.

improperly

vouched

cooperating

witness's

We review the district court's denial of a motion United States v. Wallace,

for mistrial for abuse of discretion. 515 F.3d 327, 330 (4th Cir. 2008). "will be disturbed only under

The district court's denial the most extraordinary of

circumstances." (4th Cir. 1997).

United States v. Dorlouis, 107 F.3d 248, 257

The first step in analyzing an improper vouching claim is determining "whether the comments made in fact constituted

2

vouching." Cir. 1997).

United States v. Sanchez, 118 F.3d 192, 198 (4th

Vouching occurs when the prosecutor indicates a personal belief in the credibility or honesty of a witness. [P]resenting evidence on a witness' obligation to testify truthfully pursuant to an agreement with the government and arguing that this gives the witness a strong motivation to tell the truth is not, by itself, improper vouching. Reference to a plea agreement becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness' testimony. United States v. Jones, 471 F.3d 535, 543 (4th Cir. 2006)

(alteration in original) (internal quotation marks and citations omitted). During questioned agreement. the the witness witness's about her testimony, the of prosecutor her plea

understanding

The prosecutor then asked whether the witness had

met with the agents and prosecutor involved in the case and whether she was given any money or anything of value during the meetings. At this point, Wackman's counsel moved for a

mistrial, arguing that the Government improperly vouched for the witness's credibility by inference. Wackman's motion. The district court denied

We find that the district court did not abuse The prosecutor's belief imply about that the the

its discretion in denying Wackman's motion. questions witness's did not suggest nor any the personal

credibility

did

prosecutor

3

Government could monitor and verify her truthfulness.

In short,

the prosecutor's questions simply did not constitute vouching.

II. Wackman improperly hearsay. allowed next contends that and the district based court upon

hearsay

testimony

evidence

Because Wackman did not object to the testimony or the

physical evidence at trial, we review their admission for plain error. 2006). United States v. Perkins, 470 F.3d 150, 155 (4th Cir. To demonstrate plain error, a defendant must show that:

(1) there was an error; (2) the error was plain; and (3) the error affected the his "substantial of the rights," meaning that it

"affected

outcome

district

court

proceedings." We are not of

United States v. Olano, 507 U.S. 725, 732 (1993). required justice seriously to correct a plain error unless meaning "a

miscarriage "the or

would

otherwise the

result,"

that

error public

affect[s]

fairness,

integrity,

reputation of judicial proceedings."

Id. at 736 (alteration in

original) (internal quotation marks omitted). Wackman first argues that Officer Scott Doyle's

testimony regarding what led him to obtain a search warrant of Apartment 4 at 506 West John Street ("John Street apartment") was hearsay. evidence to Hearsay, an out of court statement "offered in prove the truth 4 of the matter asserted," is

generally

not

admissible

in

federal

court.

Fed.

R.

Evid.

801(c), 802.

"However, an out of court statement is not hearsay

if it is offered for the limited purpose of explaining why a government investigation was undertaken." United States v.

Love, 767 F.2d 1052, 1063 (4th Cir. 1985). Officer Doyle testified that he obtained a search

warrant for the John Street apartment based on a call from the apartment's landlord, in which the landlord reported that he found marijuana in plain view when serving an eviction notice. We find that Officer Doyle's testimony regarding the landlord's report was not offered to prove that the landlord in fact found marijuana in the apartment, but was offered to explain how

Officer Doyle learned of the apartment and the basis for the search warrant. Therefore, Officer Doyle's testimony was not

hearsay and the district court did not err, much less plainly err, in admitting the testimony. Wackman also argues that Officer Doyle's testimony

about the eviction was hearsay, as was his testimony regarding the renter of the John Street apartment. We find that Officer

Doyle's testimony that the landlord was evicting the John Street apartment's occupants was not offered to prove that the With

occupants were being evicted and was thus not hearsay.

regard to the renter of the John Street apartment, Officer Doyle testified that Antonio Johnson was listed as the renter on the 5

lease and that he "had been told from several people that they believed Antonio Johnson was, in fact, Mr. Wackman." Although

it appears that the Government offered the statement for the truth of the matter asserted ­ that Wackman was Antonio Johnson, renter of the John Street apartment ­ we conclude that the

admission of this statement did not affect Wackman's substantial rights, as there was other admissible evidence connecting

Wackman to the John Street apartment. Finally, Wackman argues that Exhibit 10, ammunition

found in the John Street apartment, was admitted through hearsay because Officer Doyle explained that a portion of the ammunition was found in the John Street apartment by the landlord.

Specifically, Officer Doyle testified that Exhibit 10 contained "magazines with rounds in them that were located in the

residence [during the execution of the search warrant], as well as ammunition that was found in the residence, and some

ammunition that had been brought to us the following day that was located." Officer to the Doyle further the testified day after that the the

ammunition

brought

police

search

warrant was executed was found by the landlord while working on the apartment. Even if Officer Doyle's explanation that a

portion of the ammunition included in Exhibit 10 had been found in the apartment by the landlord constituted hearsay, we find no reversible error, particularly under a plain error standard of 6

review.

Simply stated, Wackman's substantial rights were not

infringed because the ammunition turned over to the police by the landlord was simply cumulative of the other ammunition and weapons previously located by the police during their search pursuant to a valid warrant.

III. Lastly, Wackman argues that the district court

erroneously enhanced his sentence two levels, pursuant to U.S. Sentencing Generally, enhancement Guidelines "[a] are Manual ("USSG") § 2D1.1(b)(1) regarding reviewed (2007). sentence only for

district factual

court's in nature

findings and are

clear error." Cir. 2002).

United States v. Carter, 300 F.3d 415, 426 (4th However, because Wackman failed to object to the

enhancement in the district court, this court reviews for plain error. 1998). Pursuant to USSG § 2D1.1(b)(1), a two-level United States v. Wells, 163 F.3d 889, 900 (4th Cir.

enhancement is warranted if a dangerous weapon was possessed during the conspiracy. The enhancement "should be applied if

the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." USSG § 2D1.1, cmt. n.3.

Wackman contends that there was not a sufficient nexus between himself and the John Street apartment 7 where the weapons and

ammunition

were

found

to

justify

the

enhancement.

However,

testimony from a cooperating witness established that Wackman possessed Maryland evidence a to gun pick it during up was their travels Wackman between did not that New York and any was

drugs. clearly

introduce the gun

that

improbable

connected to his drug activity.

Therefore, we find that the

district court did not err in enhancing Wackman's sentence. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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