US v. Corvain Cooper
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00337-RJC-DSC-12 Copies to all parties and the district court/agency. [999671227].. [14-4586]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4586
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CORVAIN T. COOPER, a/k/a CV,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:11-cr-00337-RJC-DSC-12)
Submitted:
August 31, 2015
Before KING and
Circuit Judge.
WYNN,
Circuit
Decided:
Judges,
and
October 2, 2015
HAMILTON,
Senior
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Patrick Michael Megaro, Orlando, Florida, for Appellant. Anne M.
Tompkins, United States Attorney, Anthony J. Enright, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Corvain Cooper of conspiring to distribute
and possess with intent to distribute 1000 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846
(2012);
money
laundering,
in
violation
of
18
U.S.C.
§ 1956(a)(1)(A)(i), (a)(1)(B)(i), (h) (2012); and structuring,
and aiding and abetting in structuring, financial transactions
to
evade
reporting
requirements,
in
violation
of
31
U.S.C.
§ 5324(a)(3), (d)(1), (d)(2) (2012); 31 C.F.R. §§ 103.11, 103.22
(2015); 18 U.S.C. § 2 (2012).
The district court sentenced
Cooper to a mandatory term of life imprisonment.
that
(1)
marijuana
evidence
and
of
of
his
his
past
past
conviction
possession
for
of
a
Cooper argues
possession
of
firearm
was
inadmissible character evidence, (2) his case should have been
severed from those of his codefendants, (3) the evidence was
insufficient
to
connect
him
to
1000
or
more
kilograms
of
marijuana, (4) he suffered ineffective assistance of counsel,
and (5) his sentence violates the Eighth Amendment.
We affirm
in part and dismiss in part.
We first review Cooper’s challenges to the district court’s
admission of evidence for abuse of discretion.
Queen, 132 F.3d 991, 995 (4th Cir. 1997).
United States v.
Cooper contends that
the district court’s evidentiary rulings contravened both Rule
404(b) and Rule 403 of the Federal Rules of Evidence.
2
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Rule 404(b)(1) prohibits introduction of “[e]vidence of a
crime, wrong, or other act . . . to prove a person’s character
in order to show that on a particular occasion the person acted
in accordance with the character.”
Evidence “concern[ing] acts
intrinsic to the alleged crime,” however, does not fall within
Rule 404(b)’s ambit.
United States v. Otuya, 720 F.3d 183, 188
(4th Cir. 2013) (internal quotation marks and brackets omitted).
“[E]vidence
of
things,
involves
it
other
bad
the
acts
same
is
intrinsic
series
of
if,
among
transactions
other
as
the
charged offense, which is to say that both acts are part of a
single criminal episode.”
citation
omitted).
Id. (internal quotation marks and
Moreover,
evidence
subject
to
exclusion
under Rule 404(b)(1) “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).
Generally, we will not find that a
district court abused its discretion in admitting evidence over
a Rule 404(b) objection unless that decision was “arbitrary and
irrational.”
United States v. Williams, 740 F.3d 308, 314 (4th
Cir. 2014).
We
find
no
abuse
of
discretion
in
the
district
court’s
decision to admit the testimony of Beverly Hills, California
police officer David Rudy that he recovered a brick of marijuana
and other evidence of drug distribution from Cooper during a
3
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traffic stop in January 2009.
At the conclusion of Officer
Rudy’s testimony, the court instructed the jury to limit its
consideration of that testimony to the issues of intent, motive,
plan,
preparation,
absence
of
mistake,
or
lack
of
accident.
Evidence that Cooper was selling marijuana in California at the
height of the drug trafficking conspiracy alleged in this case
is probative of his intent to participate in that conspiracy,
even if his low-level distribution in California was not part of
the conspiracy.
See United States v. Ghant, 339 F.3d 660, 664
(8th Cir. 2003). *
We also find no abuse of discretion in the district court’s
admission
of
evidence
that
firearm to protect himself.
Cooper
obtained
and
possessed
a
Because firearms are tools of the
drug trade, evidence that Cooper possessed a firearm is relevant
intrinsic evidence of the ongoing conspiracy.
See United States
v. Ricks, 882 F.2d 885, 892 (4th Cir. 1984) (“[E]vidence of
firearms is relevant in narcotics conspiracy cases.”); see also
Ybarra v. Illinois, 444 U.S. 85, 107 (1979) (recognizing that
*
The government asks us to find that evidence that Cooper
was dealing drugs in California was “inextricably intertwined”
with the conspiracy and therefore not subject to the constraints
of Rule 404(b).
See Otuya, 720 F.3d at 188.
Because we
conclude that the district court was within its discretion to
admit Officer Rudy’s testimony only as evidence of intent,
motive, preparation, plan, absence of mistake, or lack of
accident, we do not address whether the court might have
admitted it for more general purposes.
4
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firearms
are
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as
much
“tools
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of
the
trade”
in
the
narcotics
business as are other forms of paraphernalia).
We also reject Cooper’s argument that the district court
should have excluded Officer Rudy’s testimony and the evidence
of Cooper’s firearm possession pursuant to Rule 403.
Rule 403
permits a district court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.”
Because “balancing . . . the Rule 403 scale
. . . is a discretionary task for the district court,” we will
not overturn a district court’s decision to admit evidence over
a
Rule
403
objection
“‘except
under
the
most
extraordinary
circumstances, where that discretion has plainly been abused,’”
and the trial court has acted “‘arbitrarily or irrationally.’”
United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006)
(quoting United States v. Simpson, 910 F.2d 154, 157 (4th Cir.
1990)).
acted
Here, Cooper has simply not shown that the trial court
arbitrarily
or
irrationally
in
concluding
that
the
unfairly prejudicial effect of Officer Rudy’s testimony and the
evidence of Cooper’s firearm possession did not “substantially
outweigh” the probative value of that evidence.
We
likewise
consider
the
district
court’s
denial
Cooper’s motion for severance for abuse of discretion.
States v. Min, 704 F.3d 314, 319 (4th Cir. 2013).
United
A district
court has “broad discretion” to deny a motion for severance.
5
of
To
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establish an abuse of that discretion, a defendant must show
that he suffered prejudice as a result of the denial.
United
States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010).
The
Federal
Rules
of
Criminal
Procedure
permit
multiple
defendants to be “charged in the same indictment if they are
alleged to have ‘participated in the same act or transaction, or
in
the
same
series
of
offense or offenses.’”
acts
or
transactions,
constituting
an
Id. (quoting Fed. R. Crim. P. 8(b)).
Moreover, “[t]here is a preference in the federal system for
joint trials of defendants who are indicted together because
such
trials
promote
efficiency
and
serve
the
interests
of
justice by avoiding the scandal and inequality of inconsistent
verdicts.”
12-4659,
United
12-4825,
States
2015
WL
v.
Graham,
4637931,
__
at
F.3d
*28
__,
(4th
__,
Cir.
Nos.
2015)
(internal quotation marks and brackets omitted).
While Rule 14 permits severance, a district court should
not order it unless “there is a serious risk that a joint trial
would
compromise
a
specific
trial
right
of
one
of
the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.”
Id.
The burden rests with the
defendant to show “that actual prejudice would result from a
joint trial, and not merely that a separate trial would offer a
better chance of acquittal.”
Id. (internal quotation marks and
ellipses omitted).
6
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Cooper makes no such showing.
specific
right
demonstrates
that
that
the
the
joint
joint
ignorance
and
have
infringed
prevented
upon
the
jury
nor
from
While one of his codefendants
sought
been
trial
trial
reliably determining his guilt.
pleaded
Cooper neither identifies a
to
shift
admissible
blame
even
to
that
his
if
him,
trial
were
testimony
would
severed.
Cooper thus suffered no prejudice, and consequently,
we find no abuse of discretion in the denial of Cooper’s motion
to sever.
We
next
Cooper’s
review
Rule
29
de
novo
motion
for
the
district
judgment
of
court’s
denial
acquittal.
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
affirm
if,
when
the
evidence
is
viewed
in
the
of
United
We will
light
most
favorable to the government, “the conviction is supported by
substantial evidence.”
762-63
(4th
Cir.
United States v. Hickman, 626 F.3d 756,
2010)
(internal
quotation
marks
omitted).
“‘Substantial evidence’ is ‘evidence that a reasonable finder of
fact
could
accept
as
adequate
and
sufficient
to
support
a
conclusion of a defendant’s guilt beyond a reasonable doubt.’”
United
States
v.
Green,
599
F.3d
360,
367
(4th
Cir.
2015)
(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)
(en
banc)).
A
defendant
sufficiency “faces a heavy burden.”
507 F.3d 233, 245 (4th Cir. 2007).
7
challenging
evidentiary
United States v. Foster,
Reversal of a conviction on
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these
grounds
failure
is
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is
limited
clear.”
Id.
to
at
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“cases
where
the
244-45
(internal
for
drug
prosecution’s
quotation
marks
omitted).
To
U.S.C.
obtain
§
846,
a
conviction
the
government
a
must
conspiracy
show
that
under
a
21
defendant
(1) agreed with at least one more person to engage in conduct
that
violated
21
U.S.C.
§
841;
(2)
had
knowledge
of
the
conspiracy; and (3) knowingly and voluntarily participated in
the conspiracy.
Cir. 2014).
United States v. Howard, 773 F.3d 519, 525 (4th
Further, “in order for the statutory maximums and
mandatory minimums of § 841(b) to apply,” the government must
demonstrate
“that
foreseeable
to
the
the
threshold
individual
drug
amount
defendant.”
Brooks, 524 F.3d 549, 558 (4th Cir. 2008).
was
United
reasonably
States
v.
In that vein, this
Court has cautioned that the trier of fact “may not simply guess
at the magnitude or frequency of unknown criminal activity” if
“no evidence exists to guide the trier of fact in determining
the outer scope of a conspiracy.”
Here,
the
Government
Hickman, 626 F.3d at 768-69.
presented
sufficient
evidence
specifically showing that Cooper was responsible for more than
1000 kilograms of marijuana.
The Government presented testimony
from three of Cooper’s coconspirators, each of whom claimed to
distribute well over 10,000 kilograms of marijuana.
While only
153 kilograms of marijuana were seized, the jury is not limited
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to considering only that marijuana which is seized.
See United
States v. Durham, 211 F.3d 437, 444 (7th Cir. 2000) (holding
that
court
may
take
witnesses’
estimates
of
amount
of
drugs
purchased and multiply that by minimum quantity sold on each
occasion), cited in Hickman, 626 F.3d at 769.
Next, while Cooper charges his attorney with ineffective
assistance,
unless
an
attorney’s
ineffectiveness
conclusively
appears on the face of the record, such claims are not generally
addressed on direct appeal.
424,
435
(4th
Cir.
United States v. Benton, 523 F.3d
2008).
Because
his
attorney’s
ineffectiveness does not appear on the face of the record, his
claims
should
be
raised
in
a
motion
brought
pursuant
to
28
U.S.C. § 2255 (2012), to permit sufficient development of the
record.
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010).
We thus dismiss his appeal with respect to the
ineffective assistance claims.
Finally,
we
review
de
novo
Cooper’s
sentence on Eighth Amendment grounds.
771
F.3d
162,
prohibits
cruel
167
(4th
and
Cir.
unusual
challenge
to
his
United States v. Dowell,
2014).
The
punishments,
Eighth
Amendment
encompassing
both
barbaric punishments and those that are disproportionate to the
crime committed.
determining
offense,
and
Graham v. Florida, 560 U.S. 48, 59 (2010).
whether
a
sentence
thus
cruel
and
is
disproportionate
unusual,
9
we
consider
to
In
the
objective
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criteria, including the gravity of the offense and harshness of
the penalty, the sentences imposed on other criminals in the
same
jurisdiction,
and
the
sentences
offense in other jurisdictions.
the
challenges
charging
imposed
for
the
same
Dowell, 771 F.3d at 167.
that
a
particular
sentence
Of
is
disproportionate to the crime committed, there are two types: an
as-applied
challenge
disproportionate
categorical
given
challenge
that
the
the
length
of
circumstances
asserting
that
of
the
a
sentence
the
case,
entire
and
class
is
a
of
sentences is disproportionate based on the nature of the offense
or the characteristics of the offender.
Where,
as
here,
a
party
has
Id.
asserted
an
as-applied
challenge to a particular sentence, we have outlined a specific
method of analysis:
[T]he narrow proportionality principle of the Eighth
Amendment does not require strict proportionality
between crime and sentence, but forbids only extreme
sentences that are grossly disproportionate to the
crime.
Before an appellate court concludes that a
sentence is grossly disproportionate based on an
as-applied challenge, the court first must determine
that a threshold comparison of the gravity of the
offense and the severity of the sentence leads to an
inference of gross disproportionality.
United
States
v.
Cobler,
748
F.3d
570,
575
(4th
Cir.
2014)
(internal quotation marks and citations omitted).
As
Cooper
acknowledges,
we
have
previously
held
that
a
mandatory sentence of life without parole for drug distribution
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is not grossly disproportionate.
F.3d 63, 68 (4th Cir. 1995).
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United States v. Kratsas, 45
In Kratsas, we emphasized that the
defendant’s conduct was “immensely grave,” considering that the
defendant was “part of a ring of dealers,” directly responsible
“a large amount of cocaine, specifically 18 kilograms,” and a
repeat
drug
offender.
Id.
Cooper
makes
no
effort
to
distinguish Kratsas; rather, he urges us to reconsider Kratsas
in light of policy changes concerning marijuana and sentencing
since that decision.
issued
by
another
We cannot overrule a published decision
panel
of
this
Court.
McMellon
States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc).
v.
United
Therefore,
we conclude that Kratsas forecloses Cooper’s Eighth Amendment
claim.
We dispense with oral argument because the facts and legal
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED IN PART AND
DISMISSED IN PART
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