US v. Harrington Campbell

Filing 920091016

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5097

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HARRINGTON CAMPBELL, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:07-cr-00232-CCB-1)

Submitted:

September 29, 2009

Decided:

October 16, 2009

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Bonsib, Megan E. Green, MARCUS BONSIB, LLP, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Christopher J. Romano, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Harrington Campbell appeals his convictions for

conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846 (2006), and structuring § 5324 financial (2006). transactions, He was in violation to 130 of 31

U.S.C.

sentenced

months'

imprisonment. On appeal, Campbell asserts that joinder of his

conspiracy and structuring charges was improper; even if joinder was proper, the district court abused its discretion in denying Campbell's motion to sever; the conspiracy charge was barred by the statute in of limitations; expert the district court abused its

discretion

allowing

testimony

regarding

Campbell's

alleged structuring; and the Government committed prosecutorial misconduct by making improper remarks to the jury during direct examination and its closing statement.

I. Joinder Campbell first asserts that the district court erred in improperly joining the conspiracy and structuring counts.

Additionally, if joinder was proper, Campbell contends that the district court abused its discretion in denying his motion to sever.

2

Under Fed. R. Crim. P. 8, an indictment "may charge a defendant in separate counts with two or more offenses if

[1] the offenses charged are of the same or similar character, [2] are based on the same act or transaction, or [3] are

connected with or constitute parts of a common scheme or plan." United States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005) (quotation marks, alterations, and citation omitted). de novo the district court's refusal to grant a We review misjoinder

motion to determine whether the initial joinder of the offenses was proper under Rule 8(a). 399, 412 (4th Cir. 2003). United States v. Mackins, 315 F.3d If joinder was proper, our review of

the denial of a motion to sever is for abuse of discretion under Fed. R. Crim. P. 14. Id.

Joinder of offenses only violates the Constitution if "it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." 474 U.S. 438, 446 n.8 (1986). United States v. Lane,

Due to the inherent efficiency of

trying a defendant on related counts in the same trial, Rule 8(a) allows for very broad joinder. Cardwell, 433 F.3d at 385.

Joinder is proper so long as the joined offense have a logical relationship to each other. exists "when consideration an See id. of This logical relationship counts of the against the

discrete picture

defendant

paints

incomplete Id.

defendant's

criminal enterprise."

These flexible requirements are "not 3

infinitely the

elastic, that

however,

because

unrelated be

charges

create on

possibility

a defendant

will

convicted

based

considerations other than the facts of the charged offense." Id. (internal quotation marks and citations omitted). After reviewing the record, we find that joinder of the conspiracy as and structuring of charges in this and instance was

proper,

consideration

the

conspiracy

structuring

charges independently would yield an incomplete understanding of the extent of Campbell's criminal enterprise. During the trial,

the Government presented extensive evidence of Campbell's drug conspiracy. Campbell purchased cocaine from Jerome Bruce on In total, Campbell In

nine or ten occasions beginning in 1997.

purchased fifty to sixty kilograms of cocaine from Bruce.

2000, Campbell's coconspirator arranged for an unemployed truck driver to meet Campbell in Houston in order to transport cocaine from Texas to Maryland. Between 2001 and 2002, Campbell sold

between two and six kilograms of cocaine to Reginald Jones, who had originally approached Campbell at his car dealership in

search of a car. During the same time period that Campbell was engaged in this drug conspiracy, he repeatedly structured transactions with his bank in order to avoid the currency transaction report (CTR) filing requirements of the Bank Secrecy Act. mere temporal relationship 4 between joined Though a is

charges

insufficient to demonstrate a logical relation, Cardwell, 433 F.3d at 386, it is clear from the record that the structured transactions at issue here served to hide evidence of Campbell's drug profits. That Campbell sold drugs out of his dealership is

further evidence of this relationship, as is the magnitude of the illegally structured transactions. When viewed together,

the conspiracy and structuring charges paint a full picture of the extent of Campbell's crimes: in an attempt to hide the gains from his illegal drug trafficking, Campbell engaged in widespread structuring of financial transactions. Accordingly,

joinder of these charges was proper. Campbell additionally argues that even if the charges were properly joined, Fed. R. Crim. P. 14 nevertheless required severance. trial Under Rule 14(a), "if the joinder of offenses for to prejudice of and a defendant, the court may at even order 388 if may such

appears

separate (quotation joinder

trials marks

counts." ellipses

Cardwell, omitted). certain See id.

433

F.3d

Therefore,

is

technically require

proper,

circumstances However,

nevertheless

severance.

instances are rare, as it is insufficient for a defendant to demonstrate acquittal. that severance offers him a better chance of

See id.

Instead, "a district court should grant a

severance under Rule 14 only if there is a serious risk that a

5

joint

trial

would

prevent

the

jury Id.

from

making

a

reliable

judgment about guilt or innocence." Here, Campbell fails to

demonstrate

any

prejudice

resulting from joinder of his conspiracy and structuring counts. The the district jury of court the provided instructions of explicitly the joined informing charges.

proper

consideration

Nevertheless, Campbell asserts that he "was presented with a very real dilemma," as he desired to testify in his own defense as to the structuring charges but not to the drug conspiracy. However, possible the district to court correctly . . . noted as to that the "Campbell's structuring

desire

testify

allegations [was] not a basis for severance as he would in any event be subject to cross-examination by the government on the source of the cash and the reasons for the alleged structuring." Thus, even if the charges were severed, Campbell would still be cross-examined alleged drug during the structuring Accordingly, resulting abuse its trial as regarding fails his to the

conspiracy. any prejudice did not

Campbell the

demonstrate district

from

joinder, in

court

discretion

denying

Campbell's motion to sever.

II. We review de

Statute of limitations novo whether an indictment charges a

crime within the applicable statute of limitations. 6

See United

States v. Uribe-Rios, 558 F.3d 347, 351 (4th Cir. 2009).

Under

18 U.S.C. § 3282 (2006), non-capital offenses are subject to a five-year statute . . . of limitations. from the Generally, last overt a act "statute during of the

limitations

runs

existence of the conspiracy."

Fiswick v. United States, 329

U.S. 211, 216 (1946); see also United States v. Jake, 281 F.3d 123, 129 (3d Cir. 2002) (quoting Fiswick); United States v.

Gregory, 151 F.3d 1030, 1998 WL 390176, at **6 (4th Cir. 1998) (argued but not published). However, it is well-established

that there need be no overt acts in order for a drug conspiracy to exist. United States v. Shabani, 513 U.S. 10, 15 (1994). In

such instances, the statute of limitations is satisfied if the government "alleges and proves that the conspiracy continued

into the limitations period." 1344, 1364 (11th Cir. 2009).

United States v. Seher, 562 F.3d A conspiracy continues "as long as

its purposes have been neither abandoned nor accomplished, and no affirmative Id. reviewing the record, we find not it clear by that the showing has been made that it has been

terminated."

After Campbell's drug

conspiracy

charges

were

barred

statute of limitations.

Reginald Jones testified that he made

his final purchase from Campbell a few days before Jones was arrested on August 29, 2002. As this was within five years of

the filing of the indictment, it is clear that Campbell's drug 7

conspiracy limitations.

charges

were

not

barred

by

the

statute

of

III. Expert testimony Campbell next asserts that the district court erred in allowing the Government's expert witnesses to testify as to the ultimate issue when an FBI agent described instances in which Campbell had structured financial transactions. Generally, we

review a district court's decision to admit expert testimony for abuse of discretion. (4th Cir. 2003). United States v. Mohr, 318 F.3d 613, 622

However, because Campbell did not object to See To

the expert's testimony, our review is for plain error. United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). establish plain error, Campbell must "show that an

error

occurred, that the error was plain, and that the error affected his substantial rights." Id. Even if such a showing is made,

the decision to correct the error is in the discretion of this court, based on a determination that the error "seriously

affects the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993)

(internal quotation marks, alterations and citation omitted). Generally, expert testimony of "scientific, technical, or other specialized knowledge" is admissible if it "will assist the trier of fact to understand the evidence or to determine a 8

fact in issue."

Fed. R. E. 702.

Conversely, such testimony is United Though

inadmissible if it does not aid the trier of fact. States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).

Rule 704(a) provides for the admissibility of expert testimony that reaches the ultimate issue to be decided by the jury,

"testimony that merely states a legal conclusion is less likely to assist the jury in its determination." is admissible even if it reaches the Id. Such testimony issue to be

ultimate

decided by the trier of fact.

Fed. R. E. 704(a).

Campbell's argument hinges on his assertion that the Government's conclusions expert that were witness unhelpful testified to the largely jury. to legal the

However,

record reflects that the testimony presented by the FBI agent was likely very helpful to the jury. Bank Secrecy Act, and its The agent explained the that a financial

requirement

institution must submit a currency transaction report whenever an individual made a transaction with more than $10,000 in cash. Additionally, the agent testified that the Bank Secrecy Act made it a crime to attempt to structure a transaction in order to evade the filing of a CTR. of illegal structuring, types of The agent gave hypothetical examples in order that for would the be jury to better with

understand structuring.

actions

consistent

Finally, the agent testified at great length as to

several different ways in which deposits made by Campbell or 9

other

individuals

on

behalf

of

Campbell's

dealership

were

consistent with illegal structuring.

As the Government notes,

without the agent's testimony, "the jury would be left to pore over the deposit tickets or spreadsheet entries without guidance as to what to look for." Avoidance of such a confusion is the to "assist the trier of fact to Fed.

purpose of expert testimony:

understand the evidence or to determine a fact in issue." R. E. 702.

Therefore, we find that the district court did not

err in allowing expert testimony in this regard.

IV. Finally, committed jury.

Prosecutorial misconduct asserts in that the Government made to the

Campbell

prosecutorial prevail on

misconduct a claim

statements

To

of

prosecutorial

misconduct,

Campbell must show: were improper; and

(1) the government's remarks and conduct (2) the remarks or conduct prejudicially

affected his substantial rights so as to deprive him of a fair trial. 1999). United States v. Golding, 168 F.3d 700, 702 (4th Cir. Because Campbell our did review not is object for below to the See

Government's

comments,

plain

error.

White, 405 F.3d at 215. Concerning Campbell's first allegation of misconduct, we have held that "it is highly improper for the government to refer to a defense witness as a liar." 10 United States v. Moore,

11 F.3d 475, 481 (4th Cir. 1993). Government acted improperly by

Accordingly, we find that the referring to Ronald Brown, a

defense witness, as a liar. However, prosecutorial in order for Campbell he must to succeed on that his the

misconduct

claim,

demonstrate

remarks prejudiced Campbell to the extent that he was deprived of a fair trial. In determining whether the Government's

improper remarks require reversal, we consider (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters. United States v. Harris, 498 F.3d 278, 293 (4th Cir. 2007). Additionally, through the prejudice district to the defendant use of may be ameliorated

court's

curative

instructions.

United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995). Our review of the record leads us to find that the remarks indicated by Campbell, while improper, did not prejudice Campbell to the extent that he was deprived of a fair trial. Campbell identified approximately six instances during closing in which the Government While stated six the that Ronald Brown, a defense be

witness, considered

lied.

occurrences that

arguably has

cannot

"isolated,"

fact

Campbell

identified

11

only these six examples of the Government describing defense witnesses as liars throughout an expansive oral argument

indicates to us that the misconduct was not extensive. Additionally, while the Government's comments may have had some tendency to mislead the jury, the fact that prior to closing statements, the judge instructed the jury that "the

statements, objections and arguments of counsel are not evidence and should not be considered as evidence" significantly lessens the chance that the jury was misled by the Government's improper statements. same Though this instruction likely would not have the effect of a curative instruction given

mitigating

immediately following the alleged improper conduct, see Morsley, 64 F.3d at 913, we presume that a jury has acted in a manner consistent with its instructions, see United States v. Alerre, 430 F.3d 681, 692 (4th Cir. 2005). As the instructions told the

jury not to consider counsel's statements, such as those made at closing, as evidence, we presume the jury did just that. Moreover, there was an absent the of Government's competent improper proof remarks,

abundance

establishing

Campbell's guilt on both charges.

Several witnesses, including

Jerome Bruce, Reginald Jones, and Norman Edmond, testified at great length about their participation in a drug conspiracy with Campbell. cocaine to Two or of these witnesses cocaine 12 detailed either on selling repeated

purchasing

from

Campbell

occasions.

The

third

witness,

Edmond,

provided

detailed

information regarding his participation as a carrier of drugs for Campbell, attempting to aid Campbell in transporting the drugs from Texas to Maryland. expert testimony for the Additionally, the FBI agent's provided significant

Government

evidence establishing Campbell's guilt for structuring more than $1.7 million in deposits to both Charm City Motors's and

Campbell's personal bank accounts.

Accordingly, we hold that

the Government's references to defense witnesses as liars, while improper, did not prejudice Campbell to the extent that he was deprived of a fair trial. Similarly, we reject Campbell's claim that improper The

vouching by the Government deprived him of a fair trial. Government may not vouch or bolster a government

witness

testimony during its closing argument.

See United States v. "Vouching occurs belief in is the an

Sullivan, 455 F.3d 248, 259 (4th Cir. 2006). when the prosecutor or indicates of a a personal

credibility

honesty

witness;

bolstering

implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury." Id. Campbell first contends that the Government

improperly vouched for Norman Edmond by stating that Edmond had no obligation to testify and therefore had no motivation to lie. However, this is not an example of vouching, as the prosecutor 13

"made no statement about h[is] personal belief in the truth of the [testimony]," see Sullivan, 455 F.3d at 259, but instead merely argued that, given the fact that Edmond gained nothing from testifying, he had no motivation to lie. Additionally, Campbell argues that the Government

improperly vouched for Jerome Bruce. the statements referenced by

We conclude, however, that did not constitute

Campbell

improper vouching, as the Government made no comments indicating a personal belief in the matter. Instead, the Government merely

referenced parts of the testimony corroborating Bruce's in-depth knowledge of Campbell. that Bruce could not Similarly, the Government's statements get a reduction in sentence for his

testimony were not indicative of the Government's belief in the veracity of Bruce's statement, but instead merely reinforced the fact that Bruce had no motivation to lie, as he was not

receiving any benefit from his testimony. Campbell also asserts that the Government improperly vouched for Bruce during direct examination by eliciting

information from Bruce to the effect that Bruce had entered into a plea agreement in which there he is agreed no that he in would testify the

truthfully.

However,

error

permitting

Government to elicit, during direct examination, details of a plea agreement containing a witness's promises to be truthful. United States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983). 14

Next, Campbell asserts that the Government improperly vouched for Reginald Jones in stating during closing that "his deal was what his deal was. and he did." His deal was to testify truthfully

However, when taken in context, this statement was

a direct rebuttal to prior comments the defense attorney made regarding a "deal" Jones made with the Government in exchange for his sentence. The Government was simply stating that the

fact that Jones may have received a reduced sentence had no bearing on his credibility, as any deal Jones received required his truthful testimony. Therefore, this statement was nothing

more than an appropriate response to defense counsel's attacks against Jones's truthfulness. Such "invited responses" that do

nothing more than "right the scale" do not warrant reversal of a conviction. United States v. Young, 470 U.S. 1, 12-13 (1985). also assigns error to the Government's

Campbell

statement, with regard to the Government's witnesses, that "It's not that their sentence is going to get cut. If they get on

that witness stand and lie, and they falsely accuse somebody, they're looking at perjury charges, ladies and gentlemen."

Again, this statement was merely an invited response to defense counsel's assertions that the Government witnesses were

testifying in exchange for a reduced sentence. at 12-13. Though relied on Campbell evidence 15 asserts outside that of

Young, 470 U.S. this statement this

improperly

the

record,

assertion is belied by the record, as the Government's comments merely reiterated the fact that prior to taking the stand, each witness swore an oath to tell the truth, an oath made on the record and before the jury. Campbell next takes exception to the Government's

statement regarding Jerome Bruce's prior obstruction of justice. However, we conclude the challenged statement was nothing more than a fair characterization of Bruce's plea agreement, which reflects that Bruce was to receive both a two-level enhancement for obstruction of justice as well as a three-level reduction for acceptance of responsibility. Moreover, the Government's

statement that one who obstructed justice ordinarily would not get a departure for acceptance of responsibility is an accurate restatement of the plea agreement, which states that a

"reduction [for acceptance of responsibility] normally is not available to persons who obstruct justice." Accordingly,

Campbell's argument is without merit. Finally, Campbell asserts that the Government

committed prejudicial error in referring to the Defendants as criminals triumph of and stating over that good "all is for that good that is necessary and for to the do the

evil While

men this

women

nothing."

Campbell

argues

advocacy

was

equivalent of instructing the jury that if they did not vote to convict, evil would triumph, he fails to persuasively articulate 16

the

manner

in

which

these

comments

were

prejudicial

to

his

defense. as the

Due to the isolated nature of these remarks, as well overwhelming evidence of Campbell's guilt, we cannot

conclude that Campbell was deprived of a fair trial. States v. Curry, failed 993 to F.2d 43, 46 (4th Cir. where

See United (finding were

1993)

defendant

establish

prejudice

remarks

isolated and evidence of guilt was overwhelming). 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

17