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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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