US v. Emmith Marrel Snell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00073-FDW-5 Copies to all parties and the district court/agency. [1000006318].. [15-4488]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4488

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMMITH MARREL SNELL,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:14-cr-00073-FDW-5)

Argued:

October 27, 2016

Decided:

January 19, 2017

Before WILKINSON and TRAXLER, Circuit Judges, and Bruce
HENDRICKS, United States District Judge for the District
South Carolina, sitting by designation.

H.
of

Affirmed by unpublished per curiam opinion.

ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for
Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF:
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE
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Unpublished opinions are not binding precedent in this circuit.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 Emmith Marrel Snell for possession with
intent

to

distribute

violation

of

21

and

U.S.C.

distribution

§

841(a)(1)

sentenced to 63 months in prison.

of

&

cocaine

base

in

He

was

(b)(1)(B).

On appeal, Snell claims that

the government failed to produce evidence that he was entitled
to receive under Brady v. Maryland, 373 U.S. 83 (1963); the
Jencks Act, 18 U.S.C. § 3500; and Rule 16 of the Federal Rules
of Criminal Procedure.

Snell also challenges the sufficiency of

the evidence to sustain his conviction.

We affirm.

I.
From

approximately

Reginald

Lindsey

January

operated

a

Charlotte, North Carolina.

2009

drug

through

April

distribution

8,

2014,

business

in

Lindsey purchased large quantities

of powder cocaine, some of which he used to manufacture crack
cocaine at a drug stash house.

The Charlotte-Mecklenburg Police

Department investigated Lindsey’s drug operation.
and

July

of

controlled

2013,

buys

of

undercover
crack

officers

cocaine

from

Between May

conducted
Lindsey

several
and

his

2013,

and

associates.
One

such

controlled

buy

occurred

on

June

11,

involved Lindsey and two of his associates, Stanley Horton and
Defendant

Emmith

Snell.

Officer

Amir

Holding,

acting

in

an

undercover capacity, contacted Horton to arrange the purchase of
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4.5 ounces of crack cocaine from Lindsey for $5,175.
turn, called Lindsey to get the drugs.

Horton, in

Lindsey had already set

up five drug deals with other customers for that day and he
agreed to package the additional 4.5 ounces and meet Horton for
the sale to Officer Holding.

Lindsey packaged the drugs in

clear plastic bags at the stash house.
In

the

early

afternoon,

Officer

Holding

and

Sergeant

Terrance Gerald drove to the location where the controlled buy
was to take place.

Sergeant Gerald got into the back seat of

Officer

vehicle

Holding’s

and

Horton,

who

had

arrived

separately, got into the front passenger seat next to Officer
Holding.

From the back seat, Sergeant Gerald videotaped the

drug deal, although at times there was only an audio recording
because he would have to lower the camera to avoid detection.
Officer
cocaine.

Holding

gave

Horton

the

money

for

the

crack

When Lindsey arrived, Horton got out of the undercover

vehicle and into Lindsey’s car, where Lindsey and Horton counted
the money.

Lindsey then realized that he had accidentally left

the 4.5 ounces of crack cocaine on the kitchen counter of the
stash house.

Lindsey called Snell and asked Snell to go to the

stash house, retrieve the drugs, and bring them to the location.
Snell was a trusted friend to Lindsey and the only member of
Lindsey’s organization who had a key to the stash house.

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Within

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minutes,

Snell

location on a motorcycle.
the

back

seat

of

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arrived

at

the

controlled-buy

Snell got off the motorcycle and into

Lindsey’s

vehicle.

He

handed

the

crack

cocaine, which was packaged in a clear plastic bag, across the
front seat to Lindsey.

Snell then returned to his motorcycle

and left the location.

Horton returned to Officer Holding’s

vehicle

and

delivered

the

crack

cocaine,

which

a

laboratory

analysis confirmed to be cocaine base.
On April 8, 2014, a grand jury returned a thirteen-count
indictment against eleven defendants, including Lindsey, Horton,
and Snell.

Snell was named in two of the thirteen counts.

Specifically, Count 2 charged Lindsey, Horton, and Snell with
conspiracy to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846, from January 2009
through April 8, 2014.

Count 9 charged Lindsey, Horton, and

Snell with possession with intent to distribute and distribution
of cocaine base on or about June 11, 2013, in violation of 21
U.S.C. §§
offense,

841(a)(1), (b)(1)(B), and aiding and abetting that
in

violation

of

18

U.S.C.

§ 2.

Snell

pleaded

not

guilty to both counts.
Lindsey was charged in the indictment with two additional
conspiracy
with

counts,

intent

to

plus

five

distribute

additional

and

counts

distribution

of

of

possession

cocaine

base,

arising out of other drug deals that took place between May 8,
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2013, and July 18, 2013.

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He subsequently agreed to plead guilty

to the Count 2 conspiracy and cooperate with the government.
This included meeting with the government on several occasions
and providing testimony adverse to Snell at trial.

In addition

to his testimony regarding the June 11, 2013, sale of crack
cocaine to Officer Holding, Lindsey offered testimony about his
relationship with Snell and Snell’s ongoing involvement in his
drug business.

The jury ultimately convicted Snell of Count 9,

possession with intent to distribute and distribution of cocaine
base

on

June

11,

2013,

but

acquitted

him

of

Count

2,

the

conspiracy count.
II.
Snell

contends

that

the

evidence

was

insufficient

to

convict him of the Count 9 possession with intent to distribute
charge.

We review a defendant’s challenge to the sufficiency of

the evidence de novo, and we must affirm if there is substantial
evidence to support the conviction when viewed in the light most
favorable to the Government.
F.3d

405,

evidence

419

that

(4th
a

Cir.

See United States v. Engle, 676

2012).

reasonable

finder

“Substantial
of

fact

evidence

could

accept

is
as

adequate and sufficient to support a conclusion of guilt beyond
a reasonable doubt.”

Id.

“[R]eversal for insufficiency must be

confined to cases where the prosecution’s failure is clear.”
Id. (internal quotation marks omitted).
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We conclude that there was sufficient evidence to support
the jury’s verdict.

Lindsey testified that Snell was a member

of his drug organization and the only person to whom he had
entrusted a key to his drug stash house.

When he realized that

he had forgotten to bring the 4.5 ounces of crack cocaine for
the sale to Officer Holding, Lindsey called Snell and asked him
to go to the stash house and bring the drugs to him.
minutes,

Snell

arrived

at

the

location,

entered

Within

Lindsey’s

vehicle, and handed a clear plastic bag containing 4.5 ounces of
crack cocaine to Lindsey.
Lindsey’s

testimony

jury’s verdict.

alone

is

sufficient

to

support

the

See United States v. Wilson, 115 F.3d 1185,

1190 (4th Cir. 1997) (“[T]he uncorroborated testimony of one
witness

or

of

an

conviction.”).

accomplice

But

in

this

may

be

case,

sufficient
it

does

not

to

sustain

stand

a

alone.

Lindsey’s testimony was corroborated by the testimony of the
undercover officers, who collectively observed Snell arriving at
the

scene

and

handing

something

over

the

console

towards

Lindsey, as well as by the video-recording of the transaction.
Snell’s

contention

that

credible is of no avail.

Lindsey’s

testimony

was

not

In resolving issues of substantial

evidence, this court may not reweigh the evidence or reassess
the factfinder’s determination of witness credibility, and it
must

assume

that

the

jury

resolved
6

all

contradictions

in

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testimony in favor of the government.

See United States v. Roe,

606 F.3d 180, 186 (4th Cir. 2010).
We

likewise

find

no

merit

in

Snell’s

claim

that

the

district court erred in allowing the officers to identify Snell
in still photographs because the photographs were blurry, and
Snell’s related claim that, but for this identification, the
jury’s

verdict

would

have

been

unsubstantiated

or

different.

The officers were present on the scene when the video-recording
took place and the district court did not abuse its discretion
in allowing them to identify Snell and the other individuals
based upon the still photographs and their memories.

It was for

the jury to view the photographs and decide what weight should
be given to the testimony.

Moreover, Snell does not deny that

he was present at the location of the controlled buy; he merely
contends that he could have been there for an innocent reason.
That was for the jury to determine as well, and the photographs
add nothing to that inquiry.
Accordingly, we hold that the district court did not err in
admitting the officer’s identification testimony and we conclude
that the evidence presented to the jury was clearly sufficient
to support the verdict.
III.
Snell next contends that we should vacate his conviction
because the government ran afoul of its discovery obligations
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under Federal Rule of Criminal Procedure 16; 1 the Jencks Act, 18
U.S.C. § 3500; 2 and Brady v. Maryland, and its progeny. 3
A.
Snell

first

contends

that

we

should

vacate

the

jury’s

verdict because the government failed to disclose exculpatory
statements

that

Lindsey

allegedly

made

regarding

Snell’s

involvement in his drug business and failed to produce a written
statement

allegedly

obtained

by

the

government

from

Lindsey.

The district court found no Brady violation because Snell failed
to demonstrate that the government was in possession of such
statements.

We affirm.

Lindsey met with law enforcement and the prosecution on
October 21, 2014, and again on October 31, 2014.
2014,

the

government

produced

to

1

Snell

Rule 16(a)(1)(E) requires the
defendant to inspect documents and
government’s possession, custody, or
the defense, intended to be used in
chief, or obtained from the defendant.

a

On November 3,

summary

of

these

government to permit the
objects that are in the
control, and material to
the government’s case-in-

2

“The Jencks Act requires the [g]overnment to turn over any
statement of a witness in its possession once the witness has
testified on direct examination, provided the statement relates
to the testimony of the witness.”
United States v. Bros.
Constr. Co., 219 F.3d 300, 316 (4th Cir. 2000).
3

See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring
the government to disclose “evidence favorable to an accused
upon request . . . where the evidence is material either to
guilt or to punishment”); Giglio v. United States, 405 U.S. 150,
154-55 (1972) (requiring the government to disclose evidence
tending to impeach a government witness prior to trial).

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meetings

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that

statements.

did
The

not

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contain

government

also

the
did

purported
not

exculpatory

produce

a

written

statement from Lindsey.
Unbeknownst

to

the

government,

Lindsey

also

spoke

by

telephone to Snell’s girlfriend, Martha Scott, on October 21,
2014, to discuss the two charges that had been brought against
Snell

and

guilty.

to

enlist

Scott’s

help

in

getting

Snell

to

plead

Scott secretly recorded this conversation.

The day before trial, Snell’s attorney, who had obtained a
copy of the recording from Scott, produced it to the government.
In the recording, Lindsey tells Scott that the government had
them red-handed, and that Snell would probably receive a much
lighter sentence if he pled guilty.

Lindsey told Scott that he

had minimized Snell’s involvement in his drug business and that
Snell

had

nothing

indictment.

to

Lindsey

do
also

with

the

told

other

Scott

that

drug
he

deals
had

in

the

written

a

statement to this effect for the government and that he believed
the government would also give Snell a deal if he pled guilty.
Based solely upon this surreptitious recording, Snell filed
a

pre-trial

motion

to

compel

the

government

to

produce

any

exculpatory or written statements made by Lindsey to or for the
government.

The government informed the court that Lindsey had

consistently implicated Snell in his ongoing drug business and
in the single controlled buy for which Snell was indicted, and
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that Lindsey had made no such exculpatory or written statements
to

the

government.

Nor

did

the

government

have

any

prior

knowledge of the telephone call between Lindsey and Scott.
The district court listened to the telephone recording in
its entirety and reviewed in camera the government’s interview
notes

from

the

meetings

with

Lindsey

for

the

purpose

of

determining whether there was any undisclosed Brady material.
It found none.

However, the court ruled that Snell was free to

use

prior

Lindsey’s

inconsistent

statements

to

Scott

as

impeachment evidence, in accordance with the applicable rules of
evidence, and to place the question of Lindsey’s credibility
regarding Snell’s actual involvement before the jury.
That is precisely what occurred.

Lindsey was questioned by

the government and by defense counsel about the telephone call.
The government played the entire recording of the telephone call
for
with

the
the

jury’s

consideration.

government’s

Lindsey

representations

testified,

to

the

consistent

court

and

the

court’s in camera review of the government’s interview notes,
that Snell had been involved in Lindsey’s ongoing drug business
and that Snell brought the 4.5 ounces of crack cocaine to him at
his request for the June 11 deal.

Lindsey also confirmed that

he never provided a written statement to the government.
Lindsey also offered an explanation for his inconsistent
statements to Scott during their telephone conversation.
10

He

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testified that the purpose of the telephone call was to convince
Scott to persuade Snell to accept a guilty plea, as everyone
else named in the indictment had done, so that Snell would also
receive a lesser sentence.

Lindsey testified that Snell was his

best friend and closest confidant.

He felt guilty because he

had asked Snell to bring him the crack cocaine on June 11, and
he believed that Snell would never have been on the indictment
and

would

not

be

going

to

jail

if

he

had

not

done

so.

Accordingly, Lindsey testified that he “was saying anything [to
Scott] to try to [get] Emmith Snell to sign a plea.”

J.A. 225.

We find no error in the district court’s factual findings
or legal conclusions.

Because Snell failed to establish that

Lindsey made the alleged exculpatory or written statements to or
for the government, he failed to establish that the government
violated Brady or any of its other discovery obligations.
B.
Snell
discovery

next

contends

obligations

by

that
failing

the
to

government

violated

inform

that

him

its

Officer

Holding had seen Snell at a drug deal involving Lindsey that
occurred prior to the six drug deals at issue in the indictment.
The

government

learned

of

this

information

the

day

before

Officer Holding testified and made the decision not to use the
evidence against Snell in the government’s case-in-chief, even
though the evidence was potentially inculpatory as to Snell.
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The government did not inform Snell of this information prior to
the conclusion of Officer Holding’s direct examination.
At

the

start

of

Snell’s

cross-examination

of

Officer

Holding, however, Snell’s counsel asked an open-ended question
that could have elicited this testimony from Officer Holding,
prompting the government to interrupt for a side bar conference
and inform the judge and defense counsel of this information.
Snell objected to the late disclosure of the information as a
violation of the government’s discovery obligations, which the
district

court

overruled,

and

the

information

was

never

presented to the jury.
We find no reversible error in the district court’s ruling.
The

government

under

Brady

was

because

not
it

required
was

not

to

disclose

the

exculpatory.

information

Nor

did

the

statement relate directly to the controlled buys at issue in the
indictment.
produced

this

Moreover,

even

information

if

prior

the
to

government
the

should

have

cross-examination

Officer Holding, there was no prejudice to Snell.

of

Snell argues

that he could have used Officer Holding’s inculpatory testimony
about

Snell’s

presence

at

an

unrelated

drug

deal

to

impeach

Lindsey’s favorable testimony that Snell was not involved in any
of the other drug deals set forth in the indictment.

Clearly,

there is no reasonable probability that such testimony would
have resulted in a different verdict on Count 9.
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But, in any

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event,

the

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information

was

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disclosed

to

the

defense

in

sufficient time for Snell reasonably and effectively to make use
of it at trial.

Snell chose not to do so.
C.

Finally,
discovery

Snell

alleges

obligations

by

that

the

failing

government

to

produce

history of Snell’s girlfriend, Martha Scott.

violated

the

its

conviction

Scott was called

by the defense to testify about Snell’s sources of legitimate
income and to provide support for his theory that he did not
need to participate in Lindsey’s drug business.

Scott was not

present at the June 11 controlled buy, nor did she offer any
information about that transaction.

During cross-examination,

the government impeached Scott with her prior conviction for
providing fictitious information to an officer.

Snell did not

object.
After trial, Snell filed a motion to compel, and argued
that

the

“Motion

government
for

had

Pre-Trial

failed

Production

to

comply
of

Brady

with
and

his

earlier

Impeachment

Evidence Concerning Government Witnesses,” J.A. 53, which had
requested, among other things, the “FBI rap sheet, NCIC printout
and any other records available to the government reflecting the
arrest and conviction history of any [such] witness.”

J.A. 55.

Construing the post-trial motion to compel as a motion for a new

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trial or for a judgment of acquittal, the district court denied
the same.

We affirm.

Scott was not a government witness.
obligation

under

Brady

or

otherwise

The government had no
to

anticipate

who

the

defense might call as a witness and disclose evidence that was
only relevant to the government’s potential impeachment of a
defense witness.

The evidence was easily and equally obtainable

by the defense.

Moreover, given Scott’s lack of knowledge or

testimony about the June 11 drug deal, there is no reasonable
probability that, had the information been disclosed to Snell,
the result of the verdict on Count 9 would have been different.
IV.
For the foregoing reasons, we affirm the district court’s
judgments.
AFFIRMED

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