US v. Daniel McIntosh

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cr-00777-RWT-14 Copies to all parties and the district court/agency. [999915393].. [14-4357]

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 1 of 17

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4357

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL MCINTOSH, a/k/a Barfly, a/k/a B-Fly,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00777-RWT-14)

Argued:

January 28, 2016

Decided:

August 23, 2016

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ,
Highland, Maryland, for Appellant.
Sonja M. Ralston, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 2 of 17

PER CURIAM:
A
conspiracy

jury
to

convicted

possess

Daniel

with

McIntosh

intent

to

(“Appellant”)

distribute

of

marijuana,

conspiracy to launder money, and aiding and abetting interstate
travel in furtherance of drug trafficking.

The district court

sentenced Appellant to 120 months of imprisonment and ordered
him

to

forfeit

over

$6.3

million.

He

timely

appealed

and

alleges several errors arising from his trial and sentencing.
We have reviewed the record and find no reversible
error.

Therefore, for the reasons that follow, we affirm.
I.
During

trafficking

a

conspiracy

decade-long,
beginning

in

multi-state
2001,

marijuana

Appellant

and

15

co-conspirators directed thousands of pounds of marijuana into
Baltimore,

Maryland,

from

tractor-trailer and airplane. 1
the conspiracy:

California

and

Canada

by

Appellant was heavily involved in

he arranged for drivers as well as deliveries

of marijuana, assisted in unloading trucks containing up to 100
pounds of marijuana at a time, collected and counted proceeds,
and helped in dividing up the marijuana for distribution.

1

We recite the facts in the light most favorable to the
Government, as the prevailing party at trial. See United States
v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 2015).

2

Appeal: 14-4357

Doc: 79

In

Filed: 08/23/2016

2007,

Appellant

Pg: 3 of 17

took

over

a

Baltimore

bar/music

venue called Sonar, which he utilized as a cover for the illicit
marijuana

operation.

Sonar

struggled

with

its

operational

expenses, yet the infusion of cash from the marijuana operation
that was commingled with Sonar’s proceeds helped Appellant pay
Sonar’s bills, including payroll, outstanding checks, and tax
obligations.

Moreover, Appellant used Sonar and its employees

to coordinate the marijuana distribution network.

For instance,

Sonar was used as a drop-off and pick-up location for the cash
that supported the conspiracy, Appellant paid a co-conspirator
through

Sonar’s

payroll,

and

Appellant

had

a

Sonar

employee

deliver marijuana to an off-premises location.
In May 2012 in the District of Maryland, Appellant was
charged

by

a

second

amended

on

September

superseding

indictment,

11,

with

2012,

the

which

was

following

then

crimes:

conspiracy to distribute and possess with intent to distribute
1,000 kilograms or more of marijuana, in violation of 21 U.S.C.
§ 846 (“Count One”); conspiracy to launder money, in violation
of

18

U.S.C.

concealment,
(“Count

§ 1956(h)
in

Three”);

(“Count

violation
knowingly

of

Two”);
18

money

U.S.C.

maintaining

a

laundering

by

§ 1956(a)(1)(B)(i)
premises

for

the

purpose of distributing marijuana, in violation of 21 U.S.C.
§ 856(a)(1) (“Count Four”); managing and controlling a place for
the

purpose

of

unlawfully

storing,
3

distributing,

and

using

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 4 of 17

marijuana, in violation of 21 U.S.C. § 856(a)(2) (“Count Five”);
and aiding and abetting interstate commerce in furtherance of
drug trafficking, in violation of 18 U.S.C. §§ 1952, 2 (“Count
Six”).
On the first day of trial, September 11, 2012, the
Government filed an information pursuant to 21 U.S.C. § 851 (the
“Information”),

seeking

to

enhance

Appellant’s

citing four prior felony drug offenses.

sentence

and

Appellant was convicted

of three of the offenses in Pennsylvania in 1998: possession
with

intent

to

deliver

marijuana,

attempted

possession

of

marijuana, and attempted possession of marijuana with intent to
deliver.

He

was

convicted

of

the

remaining

offense

--

possession with intent to distribute marijuana -- in Maryland in
2005.

As a result, the Government submitted that if the jury

convicted Appellant of conspiracy to distribute less than 1,000
kilograms but more than 100 kilograms, he would be subject to a
mandatory minimum term of ten years in prison.

See 21 U.S.C.

§ 841(b)(1)(B).
The trial lasted approximately 25 days.
Appellant

filed

Pennsylvania

and

a

motion

Maryland

to

exclude

marijuana

evidence

of

convictions.

At trial,
the
He

prior

claimed

that including such convictions would violate Rule 404(b) of the
Federal

Rules

Appellant’s

of

motion

Evidence.
but

The

cautioned
4

the

district
jury

court

twice

denied

that

the

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 5 of 17

evidence was to be used only for the limited purposes outlined
in Rule 404(b).
During trial, the Government introduced evidence that,
as to the Pennsylvania offenses, Appellant paid $12,000 for 15
pounds of marijuana from a confidential informant, and police
then

recovered

approximately

Appellant’s car.

one

ounce

of

marijuana

About one month later, Appellant arranged for

a courier to pay $2,400 for five pounds of marijuana.
consolidated

from

proceeding,

Appellant

pled

guilty

to

At a

attempted

possession of marijuana and possession with intent to distribute
marijuana with regard to the 15-pound purchase.
involvement

with

the

five-pound

purchase,

he

When he denied
was

allowed

to

enter an Alford plea 2 to the charges of attempted possession of
marijuana

and

marijuana.

conspiracy
The

to

Government

possess
also

with

intent

introduced

a

to

court

deliver
record

reflecting Appellant’s Maryland conviction for possession with
intent to distribute marijuana, but no additional facts were
provided to the jury with regard to this conviction.
Ultimately,
Maryland

in

jury

Appellant

found

the

instant
guilty

2

case,
of

the
a

District

lesser

of

included

See North Carolina v. Alford, 400 U.S. 25 (1970)
(authorizing a defendant to waive trial and to consent to
punishment
without
admitting
participation
in
the
acts
constituting the crime).

5

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 6 of 17

offense in Count One, that is, conspiracy to distribute more
than 100 but less than 1,000 kilograms of marijuana; Count Two,
conspiracy to launder money; and Count Six, interstate travel in
furtherance

of

drug

trafficking.

He

was

acquitted

of

the

remaining counts.
At sentencing on March 20, 2014, the district court
established that Appellant was a career offender, and thus, his
advisory

Sentencing

imprisonment.

Guidelines

range

was

360

months

to

life

The district court also determined that Appellant

was subject to a mandatory minimum sentence of ten years based
on the Government’s § 851 Information.

Ultimately, the district

court varied downward and sentenced Appellant to the mandatory
minimum of 120 months for the drug conspiracy, a concurrent 120
months for the money laundering conspiracy, and a concurrent 60
months for the conviction of interstate travel in furtherance of
unlawful activity.

The district court also ordered Appellant to

forfeit over $6.3 million, representing the gross proceeds from
his criminal activity.
In this appeal, Appellant claims the district court
erred

in

five

ways:

(1)

admitting

evidence

of

his

prior

marijuana convictions in violation of Rule 404(b) (the “Rule
404(b) argument”); (2) imposing the mandatory minimum sentence
of

120

months

argument”);

(3)

based

on

imposing

the
a

Information
forfeiture

6

(the
order

“sentencing
without

a

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

constitutional,

factual,

or

Pg: 7 of 17

statutory

basis;

(4)

preventing

Appellant from presenting a defense and confronting witnesses;
and (5) denying his motion for acquittal based on insufficiency
of the evidence.
focus

on

the

While we reject each of these arguments, we

first

two:

the

Rule

404(b)

argument

and

the

sentencing argument.
II.
Rule 404(b) Argument
A.
We review a district court’s Rule 404(b) evidentiary
determinations for abuse of discretion.

See United States v.

Briley,

2014).

770

F.3d

267,

275-76

(4th

Cir.

“Under

this

standard, a district court abuses its discretion when it acts
arbitrarily or irrationally” in admitting the evidence.

Id.

(internal quotation marks omitted).

Even if the district court

abused

must

its

discretion,

harmless error hurdle.
747,

753

(4th

Cir.

Appellant

still

surmount

the

See United States v. Madden, 38 F.3d

1994).

“Where

error

is

founded

on

a

violation of Rule 404(b), the test for harmlessness is whether
we

can

say

with

fair

assurance,

after

pondering

all

that

happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
Id. (internal quotation marks omitted).

7

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 8 of 17

B.
The

district

court

denied

Appellant’s

motion

to

exclude his prior convictions because it concluded these prior
convictions were relevant, necessary, reliable, and not unduly
prejudicial.
did

not

On appeal, Appellant (1) contends the Government

timely

evidence;

and

convictions.

provide
(2)

notice

challenges

of

its

the

intended

relevancy

use

of

of

the

this
prior

We conclude that the district court did not abuse

its discretion.
1.
We

first

address

Appellant’s

argument

that

the

Government did not provide timely notice of its intent to use
Rule 404(b) evidence.

Rule 404(b)(2) provides that upon request

by the defendant, the Government must, before trial, “provide
reasonable notice of the general nature of any such evidence
that the prosecutor intends to offer at trial.”
404(b)(2)(A).

Fed. R. Evid.

Such a notice “is intended to reduce surprise and

promote early resolution on the issue of admissibility.”

Fed.

R. Evid. 404(b) advisory committee’s note to 1991 amendments.
Accordingly, if the Government does not comply with the notice
requirement
inadmissible.

of

Rule
See

id.

404(b),
(“[T]he

the

proffered

notice

evidence

requirement

serves

condition precedent to admissibility of 404(b) evidence.”).

8

is
as

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Contrary
satisfied

the

to

notice

Pg: 9 of 17

Appellant’s

argument,

requirement.

the

Appellant’s

Government

trial

counsel

herself acknowledged that August 1, 2012, was “the first time
[the

Government]

set

out

in

some

specificity

Government
evidence

again

of

informed

[Appellant’s]

under [R]ule 404(b).”

Then, on August 26, 2012, the

Appellant
prior

[the

J.A. 1700. 3

Government was] hoping to submit to the court.”
This was 41 days prior to trial.

what

that

drug

G.S.A. 30. 4

it

arrests

“may
and

introduce
convictions

These notices were given

several weeks before the trial was set to begin on September 11.
And, although the content of the notice was broad in scope, the
Government

nonetheless

met

the

requirement

by

providing

the

“general nature” of the type of evidence it was planning to
introduce.

Fed. R. Evid. 404(b)(2).
Moreover, Appellant cannot claim that he was surprised

at trial because on September 11, 2012, he conceded in a motion
in limine “the [G]overnment has informed the defense that it may
introduce [Rule 404(b)] evidence.”

G.S.A. 40; see United States

v. Basham, 561 F.3d 302, 327 n.12 (4th Cir. 2009) (sufficient
notice

when

record

indicates

that

the

defendant

had

actual

3

Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
4

Citations to the “G.S.A.” refer to the Government’s
Supplemental Appendix filed in this appeal.

9

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 10 of 17

notice); United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997)

(“[I]n

defendant

cases

where

its

intent

of

the

prosecution

to

use

has

particular

notified
Rule

the

404(b)

evidence[,] . . . the fear of a ‘trial by ambush’ recedes.”).
Indeed, it was nearly a month into trial, on October 9, 2012,
when

the

prior-act

evidence

was

ultimately

introduced,

and

Appellant has provided no support for the notion that he lacked
time to prepare a sufficient defense.
Under these circumstances, we conclude the Government
provided reasonable notice to Appellant under Rule 404(b).
2.
Appellant

next

challenges

the

Pennsylvania and Maryland convictions.

relevancy

of

the

Rule 404(b)(1) of the

Federal Rules of Evidence states, “Evidence of a crime, wrong,
or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance

with

the

character.”

Fed.

R.

Evid.

404(b)(1).

However, such evidence “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2).

Moreover, “Rule 404(b) is a rule of

inclusion,” and relevant evidence will be admitted except “that
which tends to prove only criminal disposition.”
F.3d at 275 (internal quotation marks omitted).
10

Briley, 770

Appeal: 14-4357

Doc: 79

In

Filed: 08/23/2016

assessing

Pg: 11 of 17

admissibility

of

Rule

404(b)

evidence,

this court has set forth the following requirements:
(1) the prior-act evidence must be relevant
to an issue other than character, such as
intent; (2) it must be necessary to prove an
element of the crime charged; (3) it must be
reliable; and (4) its probative value must
not be substantially outweighed by its
prejudicial nature.
United States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013)
(alteration

omitted)

(internal

quotation

marks

omitted).

Appellant contends the prior-act evidence in this case was “not
relevant or necessary,” Appellant’s Br. 16, but his brief only
makes a sufficient argument on the relevancy issue.
our review is restricted to that issue.

Therefore,

See Fed. R. App. P.

28(a)(8)(A); Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d
366, 376 (4th Cir. 2013) (argument is waived when a party fails
to support its contentions “with citations to the authorities
and parts of the record on which it relies” (alteration omitted)
(internal quotation marks omitted)).
Evidence is relevant when it is “sufficiently related
to the charged offense,” and “[t]he more closely that the prior
act is related to the charged conduct in time, pattern, or state
of mind, the greater the potential relevance of the prior act.”
United States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012)
(internal quotation marks omitted).
place,

or

pattern

of

conduct

of
11

However, when time, manner,
the

prior

activity

is

not

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 12 of 17

related to the offense, past drug activity, in and of itself, is
not a sufficient nexus.

See United States v. Johnson, 617 F.3d

286, 297 (4th Cir. 2010).
Applying
Appellant’s

these

prior

principles

convictions

were

here,

the

strikingly

charged conduct weighs in favor of admission.
Appellant

faced

charges

of

conspiracy

fact

similar

that

to

the

Considering that

to

distribute

and

possession with intent to distribute marijuana and engaging in
interstate

travel

activities,

the

in

furtherance

district

court

of

admitted

drug

distribution

the

evidence

of

Appellant’s prior marijuana convictions because the evidence was
“some indication of distributive intent.”

J.A. 1728.

Further, inclusion of this evidence goes well beyond a
mere showing of Appellant’s criminal disposition.
convictions

are

relevant

to

show

Appellant’s

Rather, the

state

of

mind,

intent, pattern of conduct of ongoing involvement, and knowledge
of the drug distribution trade.

See McBride, 676 F.3d at 397;

Johnson, 617 F.3d at 297; see also United States v. Rooks, 596
F.3d

204,

conviction

211
was

(4th

Cir.

relevant

2010)
to

(holding

show

that

a

“familiarity

14-year-old
with

drug

distribution business”).
In fact, for his Pennsylvania convictions, Appellant
first paid $12,000 to obtain 15 pounds of marijuana and then
utilized a courier to pick up several more pounds of marijuana
12

Appeal: 14-4357

Doc: 79

Filed: 08/23/2016

Pg: 13 of 17

on his behalf -- quite similar to his conduct in this case.
Additionally,
Baltimore

the

County

Government
conviction

introduced

for

Appellant’s

possession

with

2005

intent

to

distribute marijuana, which took place at the same time, same
place, and consisted of the same conduct as that charged in the
instant case.

As in Rooks, the prior convictions in this case

were offered for permissible purposes under Rule 404(b), that
is,

to

show

Appellant’s

familiarity

with

drug

distribution

practices and intent to distribute marijuana in the Baltimore
area.

And as set forth in McBride, the prior acts in this case

“closely . . . relate[] to the charged conduct in time, pattern,
or state of mind.”

676 F.3d at 397.

Significantly,

the

district

court

prefaced

the

introduction of each of these convictions with an instruction
explaining their limited evidentiary purpose.

See United States

v. Williams, 461 F.3d 441, 451 (4th Cir. 2006) (explaining that
limiting

instructions

mitigate

any

possibility

of

prejudice

because we “presum[e] that the jury obeyed [them]” (internal
quotation marks omitted)).
concluding
relevant.

that

the

As a result, we have no difficulty

prior-act

evidence

in

this

case

was

Appellant’s Rule 404(b) arguments, therefore, fail.
Even if we assume the district court erred in this

regard, the admission of such evidence was not harmful error.
The

evidence

against

Appellant
13

was

overwhelming

during

the

Appeal: 14-4357

Doc: 79

multi-week
testimony

Filed: 08/23/2016

trial,
from

including

numerous

Pg: 14 of 17

the

Government’s

witnesses

and

introduction

co-conspirators.

of
We

conclude that excluding the prior convictions would not have
altered the jury’s decision, and thus any perceived error is
See Madden, 38 F.3d at 753. 5

harmless.

III.
Sentencing Argument
A.
Appellant
district

court’s

also

challenges

imposition

of

a

the

mandatory

based on the Government’s Information.
challenge,

we

review

the

court’s

propriety
minimum

the

sentence

In addressing such a

findings

error and its legal conclusions de novo.

of

of

fact

for

clear

See United States v.

Kellam, 568 F.3d 125, 143 (4th Cir. 2009).
B.
Section
request

increased

851(a)(1)

provides

punishment

for

a

that

the

defendant

Government
by

must

filing

an

information stating that the defendant has one or more prior
5

Appellant
also
alleges
numerous
other
erroneous
evidentiary rulings, yet fails to support his contentions with
citations to the record.
See Fed. R. App. P. 28(a)(8)(A);
Projects Mgmt., 734 F.3d at 376 ; Johnson v. United States, 734
F.3d 352, 360 (4th Cir. 2013) (determining that an appellant
waived his claim when he failed “in any meaningful way” to
comply with the dictates of Rule 28 of the Federal Rules of
Appellate Procedure).
Nonetheless, we have reviewed the record
and cannot divine any error in this regard.

14

Appeal: 14-4357

Doc: 79

convictions

Filed: 08/23/2016

qualifying

him

Pg: 15 of 17

for

a

sentence

enhancement.

According to 21 U.S.C. § 841(b)(1)(B)(vii) and § 846, a person
convicted of conspiracy to distribute and possess with intent to
distribute 100 kilograms or more of marijuana is subject to a
ten-year mandatory minimum if he has a prior conviction for a
felony drug offense.

See 21 U.S.C. § 841(b)(1)(B).

In this

case, the Government cited all of the Pennsylvania convictions
and

the

Maryland

conviction

as

qualifying

convictions.

Appellant contends the convictions cannot be used to enhance his
sentence

for

three

reasons:

(1)

the

Pennsylvania

convictions

were not charged by indictment; (2) any fact that increases the
mandatory minimum sentence must be alleged in an indictment and
proved

to

the

jury

beyond

a

reasonable

doubt;

and

(3)

the

Controlled Substances Act violates the separation of powers by
giving the executive branch the power to classify marijuana as a
controlled substance and prosecute offenses as well. 6
We
arguments

as

easily
they

dispose
have

been

of

Appellant’s

roundly

6

second

rejected

by

and
the

third

Supreme

Appellant also argues in a conclusory fashion that the
Maryland conviction “c[annot] be used to enhance the sentence
because it was not a separate prior but rather, it was part of
the instant offense.”
We need not consider this argument
because McIntosh fails to cite any authority supporting his
position.
See Fed. R. App. P. 28(a)(8)(A).
Moreover, the
Pennsylvania
convictions
are
sufficient
to
trigger
§ 841(b)(1)(B)’s 10-year mandatory minimum.

15

Appeal: 14-4357

Doc: 79

Court.

Filed: 08/23/2016

Pg: 16 of 17

See Alleyne v. United States, 133 S. Ct. 2151, 2160 &

n.1 (2013) (recognizing the “general rule” that “[f]acts that
expose a defendant to a punishment greater than that otherwise
legally prescribed were by definition ‘elements’ of a separate
legal

offense,”

but

acknowledging

that

“the

fact

of

a

prior

conviction” is an “exception” to this rule (citing Almendarez–
Torres

v.

United

States,

523

U.S.

224

(1998))

(internal

quotation marks omitted)); Touby v. United States, 500 U.S. 160,
167-68 (2012) (rejecting argument that the separation of powers
is upset by the Attorney General’s dual role of scheduling drugs
and

prosecuting

those

who

manufacture

and

distribute

those

drugs, explaining that argument “has no basis in our separationof-powers jurisprudence”).
Next,

we

turn

to

Appellant’s

argument

that

his

Pennsylvania convictions do not qualify because they were not
charged

by

indictment.

Section

851(a)(2)

provides,

“An

information may not be filed under this section if the increased
punishment which may be imposed is imprisonment for a term in
excess of three years unless the person either waived or was
afforded prosecution by indictment for the offense for which
such

increased

punishment

may

§ 851(a)(2) (emphasis supplied).

be

imposed.”

21

U.S.C.

This language clearly states

that the instant offense should have been charged by indictment,
not a prior qualifying offense.

Indeed, every other circuit has
16

Appeal: 14-4357

Doc: 79

so held.

Filed: 08/23/2016

Pg: 17 of 17

See United States v. Sanchez, 389 F.3d 271, 273 (1st

Cir. 2004) (collecting cases).

And because Appellant’s federal

convictions were charged by indictment, § 851(a)(2) is satisfied
in this case.

Therefore, we reject Appellant’s contentions.
IV.

We have reviewed Appellant’s remaining arguments that
the

district

factual

bases

court
to

lacked
enter

the

the

constitutional,
forfeiture

order;

statutory,
the

and

evidence

presented at trial was insufficient to support the convictions;
Appellant was unable to confront witnesses against him; he was
erroneously denied a continuance to review discovery; and he was
improperly denied CJA funds for an expert.

Upon review of the

record and the relevant authorities, we conclude these claims
are without merit.
V.
For

the

foregoing

reasons,

the

judgment

of

the

district court is
AFFIRMED.

17