US v. Leslie Musgrove
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00016-JPB-DJJ-11 Copies to all parties and the district court/agency. [999229776].. [12-4967]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4967
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LESLIE DOMINIC MUSGROVE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
Chief District Judge. (2:11-cr-00016-JPB-DJJ-11)
Submitted:
September 27, 2013
Decided:
October 30, 2013
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dorwin J. Wolfe, WOLFE LAW FIRM, Elkins, West Virginia, for
Appellant. William J. Ihlenfeld, II, United States Attorney,
Shawn
Angus
Morgan,
Assistant
United
States
Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Leslie Dominic Musgrove was convicted of conspiracy to
possess with intent to distribute and to distribute cocaine and
methamphetamine in violation of 21 U.S.C. § 846 (2006) and of
aiding and abetting the possession with intent to distribute
more
than
500
grams
of
cocaine
in
violation
of
§§ 841(a)(1), (b)(1)(B) (West 2006 & Supp. 2013).
concurrent
360-month
sentences.
Musgrove
now
21
U.S.C.A.
He received
appeals.
We
affirm.
I
Musgrove
contends
that
the
district
court
erred
in
denying the last of several motions for a continuance, claiming
that the denial prevented counsel from adequately preparing for
trial.
We review for abuse of discretion the district court’s
denial of a continuance.
United States v. Williams, 445 F.3d
724, 739 (4th Cir. 2006).
“[B]road discretion must be granted
trial courts on matters of continuances; only an unreasoning and
arbitrary
insistence
justifiable
request
upon
for
assistance of counsel.”
(1983)
(internal
expeditiousness
delay
violates
in
the
the
face
right
to
of
a
the
Morris v. Slappy, 461 U.S. 1, 11-12
quotation
marks
omitted).
Even
if
the
defendant can demonstrate an abuse of discretion, he also must
show that the denial of a continuance specifically prejudiced
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his case.
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United States v. Hedgepeth, 418 F.3d 411, 423-24 (4th
Cir. 2005).
We
hold
that
there
was
no
abuse
of
discretion.
Notably, counsel represented to the court that he was prepared
for trial and that the motion for a continuance was made at
Musgrove’s
insistence.
Given
counsel’s
representation,
we
cannot conclude that the motion for a continuance was justified.
Further, Mugrove only speculates that the outcome of trial would
have been different had the continuance been granted.
II
Musgrove contends that the district court erred when
it failed to compel the attendance of three defense witnesses.
In a witness list submitted to the court prior to trial, counsel
identified three witnesses as “probable.”
subpoenaed,
and
they
testified
at
Those witnesses were
trial.
Counsel
did
not
request that the court issue subpoenas for the remaining three
witnesses, whose addresses were, according to the witness list,
unknown.
Because the court was not asked to do anything with
respect to securing the attendance of these witnesses, there was
no error.
III
Musgrove argues that the district court erred when it
declined to give a proposed jury instruction that described the
mechanics of a substantial assistance motion.
3
We review for
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abuse of discretion the decision to give or to refuse to give a
jury instruction.
United States v. Sarwari, 669 F.3d 401, 410-
11 (4th Cir. 2012).
With respect to the refusal to give a
proffered instruction, we have stated:
A district court commits reversible error . . . only
when the instruction (1) was correct; (2) was not
substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so
important,
that
failure
to
give
the
requested
instruction seriously impaired the defendant’s ability
to conduct his defense. . . . Moreover, we do not view
a single instruction in isolation; rather we consider
whether taken as a whole and in the context of the
entire charge, the instructions accurately and fairly
state the controlling law.
United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009)
(internal quotation marks and citations omitted).
We
hold
that
the
district
court
did
not
abuse
discretion in refusing Musgrove’s proffered instruction.
its
The
charge given to the jury “substantially covered” the proffered
instruction because it emphasized that the jury was to consider
whether a witness had testified as he or she did in the hope of
gaining
a
benefit,
such
as
a
lesser
sentence.
Knowing
the
procedure involved in a substantial assistance motion would not
have assisted the jury in evaluating a witness’ motivation to
testify in a certain way.
IV
Musgrove
also
claims
that
the
district
court
erred
when it refused his pro se request to call prosecution witness
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Rohrbaugh
Shawn
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at
Rohrbaugh
in
a
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sentencing.
pretrial
Information
debriefing
was
supplied
used
to
by
calculate
Musgrove’s relevant conduct.
Under Fed. R. Crim. P. 32(i)(2), the sentencing court
“may permit the parties to introduce evidence on the objections
[to
the
provide
presentence
that
if
investigation
“any
factor
report].”
important
The
to
Guidelines
the
sentencing
determination is reasonably in dispute, the parties shall be
given
an
adequate
opportunity
court regarding that factor.”
to
present
information
to
the
U.S. Sentencing Guidelines Manual
§ 6A1.3(a) (2011). The Guidelines contemplate the presentation
of
various
statements
forms
of
of
evidence
counsel
and
on
disputed
affidavits
of
factors,
witnesses.
Sentencing Guidelines Manual § 6A1.3 cmt. (2011).
“the
court
opportunity
issue],”
must
to
there
ensure
present
is
no
allow live testimony.
that
the
relevant
affirmative
Id.
including
parties
Thus, while
have
information
requirement
U.S.
an
adequate
a
disputed
[on
that
the
court
As the Tenth Circuit explained, “the
court is allowed broad discretion in deciding whether to permit
the introduction of testimony or other information.”
States
v.
Gines,
964
F.2d
972,
977
(10th
Cir.
1992).
United
The
defendant does not have the right to introduce live testimony on
a
disputed
issue,
but
he
must
5
be
afforded
an
“adequate”
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opportunity to present relevant information to the court.
Id.
at 978.
Here, the district court did not abuse its discretion
in
refusing
the
request
to
call
Rohrbaugh
at
sentencing.
Musgrove had the opportunity to dispute — and did dispute —
relevant
conduct
attributed
to
him
district court overruled his objection.
by
Rohrbaugh,
and
the
Further, the court made
it clear that it would not credit anything Rohrbaugh might say
at sentencing, given the court’s opinion that Rohrbaugh had lied
at trial.
V
Musgrove’s offense level was increased by two points
for obstruction of justice based on his influencing Rohrbaugh’s
testimony and based on his attempts to influence the testimony
of prosecution witness Danielle Corbin.
See USSG § 3C1.1.
The
court overruled Musgrove’s objection to the enhancement, finding
that obstruction of justice was established.
Musgrove claims
that the enhancement constituted error.
In
assessing
whether
a
sentencing
court
correctly
applied the Guidelines, we review the district court’s factual
findings
for
clear
error
and
its
legal
conclusions
de
novo.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).
enhancement for obstruction of justice is proper if:
6
An
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(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice
with
respect
to
the
investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.
USSG § 3C1.1.
An application note provides that the enhancement
should apply where a defendant is “threatening, intimidating, or
otherwise
unlawfully
influencing
a
co-defendant,
witness,
juror, directly or indirectly, or attempting to do so[.]”
or
USSG
§ 3C1.1 cmt. n.4(A).
At
Musgrove’s
request,
Rohrbaugh
wrote
a
letter
in
which he denied that he and Musgrove were involved in selling
drugs and that any telephone calls concerning methamphetamine
trafficking
Musgrove.
at
were
between
himself
and
a
person
other
than
This letter was contrary to the overwhelming evidence
trial.
Additionally,
Corbin
reported
to
the
probation
officer that Musgrove used third parties to threaten her in an
effort
to
testifying
stop
her
against
from
cooperating
Musgrove.
Under
with
these
authorities
and
circumstances,
the
enhancement for obstruction of justice was proper.
VI
We accordingly affirm.
We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
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decisional process.
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The motions to file a pro se brief and pro
se supplemental appendix are denied.
AFFIRMED
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