Filed: Aug. 06, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4573 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERENCE WATSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cr-00330-FL-1) Submitted: June 12, 2013 Decided: August 6, 2013 Before AGEE, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. David L. Neal, Hillsborough, Nor
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4573 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERENCE WATSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cr-00330-FL-1) Submitted: June 12, 2013 Decided: August 6, 2013 Before AGEE, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. David L. Neal, Hillsborough, Nort..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERENCE WATSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00330-FL-1)
Submitted: June 12, 2013 Decided: August 6, 2013
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Neal, Hillsborough, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, Kristine L. Fritz,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Appellant Terence Watson of
conspiracy to distribute and possession with intent to
distribute 280 or more grams of cocaine base. The district
court sentenced Watson to 222 months’ imprisonment. On appeal,
Watson alleges that there was insufficient evidence to support
his conviction. He also argues that his due process rights were
violated when the government superseded the original indictment
to add the above mentioned drug conspiracy charge. For the
reasons explained below, we affirm his conviction.
I.
Watson was indicted on October 25, 2011, for being a felon
in possession of a firearm on or about July 24, 2009, in
violation of 18 U.S.C. § 922(g)(1). Watson was arrested on
November 9, 2011. At his detention hearing, the magistrate
judge found that the evidence against Watson was “strong,” as it
included testimony of confidential informants, telephone
conversations preceding the purchase of the firearm, and
recordings at the time of the transaction. The magistrate judge
also inquired as to why the government took over two years to
indict Watson. The government argued that the delay was
necessary because Watson’s actions were part of a larger
investigation. On January 9, 2012, Watson pleaded not guilty to
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the charge. After conferring with the parties, the court set
trial for April 6, 2012.
On March 28, 2012, the grand jury returned a superseding
indictment charging Watson with conspiracy to distribute and
possession with intent to distribute 280 or more grams of
cocaine base in violation of 21 U.S.C. § 846. The grand jury
also charged Watson with being a felon in possession of a
firearm, as charged in the original indictment. The court
called a pretrial hearing on April 5, 2012. At this hearing,
the court expressed “its dismay at the manner in which this case
was promoted for trial by the government.” Instead of seeking a
continuance, however, Watson indicated that it was his
preference to commence with trial as planned. The government
explained that up until February 29, 2012, it did not possess
enough information to indict Watson on conspiracy charges.
However, on this date it received correspondence from a
cooperating defendant offering to provide information about
Watson. The government then gave notice to Watson’s counsel
that it anticipated receiving new information about Watson’s
involvement in dealing crack cocaine. The government states
that prior to filing a superseding indictment it gave Watson the
option of pleading guilty to the firearms charge. Apparently
plea negotiations failed. Watson then moved to dismiss the
superseding indictment, arguing that it violated his due process
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rights because of the timing of its issuance. He also argued
that the indictment constituted vindictive prosecution because
it was filed in response to his decision to plead not guilty and
proceed to trial. The court denied the motion.
Watson then pleaded not guilty to the superseding
indictment and trial commenced on April 6, 2012. At trial the
government presented evidence from cooperating witnesses Tony
Blanchard, Deon Boston, and Lawrence Sharpe; testimony from a
confidential informant, Priscilla Hudson; and testimony from
several law enforcement officers. The confidential informant
testified as to her dealings with Watson, as well as with others
involved in dealing crack cocaine. She confirmed that she
purchased from Blanchard marijuana and cocaine in several
controlled buys. She then contacted Blanchard about purchasing
a firearm. Hudson identified, through a recording, Watson as
the supplier of the firearm. Blanchard confirmed this fact as
well. Blanchard was subsequently arrested. During his
interviews, Blanchard explained that he and Boston regularly
dealt drugs together. Boston was his most regular supplier, but
he confessed to buying one to two grams of crack cocaine from
Watson a few times a month in 2008 and 2009.
Boston also testified at trial pursuant to his plea
agreement. Boston testified that he observed Watson sell to
Blanchard about five to ten times. He also admitted that he and
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Watson sold cocaine from the same vehicle two or three times
each month and that they would borrow ounces of crack cocaine
from each other depending upon supply. He went on to explain
that he was familiar with Watson’s hiding places for his drug
stash.
Sharpe testified at trial pursuant to a plea agreement.
Sharpe’s primary occupation was selling drugs along with his
partner, Shonte Fleming, and his main supplier was Boston.
However, after Boston’s arrest, Sharpe turned to Watson as his
supplier. He testified to seeing Boston and Watson together at
Boston’s residence. And, he testified that he purchased at
least one ounce at least two to three times a week from Watson,
which he could then split into smaller quantities and resell to
about fifteen to twenty people.
Based on the above testimony, the government sought to
establish a conspiracy. The government sought to establish
ongoing relationships between Watson and Boston, Boston and
Sharpe, and Sharpe and Fleming. The government explained that
Boston and Watson were working together to continue to supply
cocaine to the same customers. At the close of the government’s
evidence, Watson made a Rule 29 motion for acquittal. He
renewed this motion at the close of trial, arguing vindictive
prosecution as a due process violation. The district court
denied all motions. The jury then found Watson guilty of the
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drug conspiracy charge and not guilty of possession of a
firearm. The district court then sentenced Watson to 222
months’ imprisonment. Watson timely appealed, and we have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 3742(a).
II.
This Court reviews de novo a district court’s denial of a
motion for judgment of acquittal. United States v. Osborne, 514
F.3d 377, 385 (4th Cir. 2008). This Court must affirm the
verdict “if there is substantial evidence, taking the view most
favorable to the government.” United States v. Moye,
454 F.3d
390, 394 (4th Cir. 2006) (en banc) (quoting Glasser v. United
States,
315 U.S. 60, 80 (1942)).
“A defendant challenging the sufficiency of the evidence to
support his conviction bears ‘a heavy burden.’” United States
v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). To prove a
conviction for a drug conspiracy the government must show: “(1)
an agreement between two or more persons to engage in conduct
that violates a federal drug law, (2) the defendant’s knowledge
of the conspiracy, and (3) the defendant’s knowing and voluntary
participation in the conspiracy.” United States v. Kellam,
568
F.3d 125, 139 (4th Cir. 2009) (quoting United States v.
Strickland,
245 F.3d 368, 384-85 (4th Cir. 2001)).
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The government presented sufficient evidence of a
conspiracy here. The evidence showed that Watson and Boston
agreed to sell crack cocaine together, including when they sold
crack cocaine together out of a car. As this Court has noted,
“the proof of an agreement ‘need not be direct’-it may be
inferred from circumstantial evidence.” Kellam, 568 F.3d at 139
(quoting United States v. Ellis,
121 F.3d 908, 922 (4th Cir.
1997)). A defendant’s “relationship with other members of the
conspiracy, the length of this association, his attitude,
conduct, and the nature of the conspiracy” can all be used to
show the existence of and participation in a conspiracy. United
States v. Brown,
856 F.2d 710, 711 (4th Cir. 1988) (quoting
United States v. Collazo,
732 F.2d 1200, 1205 (4th Cir. 1984)).
Watson and Boston also borrowed drugs from each other to supply
the demands of consumers. There was evidence that Boston knew
where Watson kept his supply and that they both conducted
business in each other’s presence. Their customers were also
aware that Watson could meet their demands when Boston could
not. Furthermore, Watson had regular dealings with Blanchard to
sell him one to two ounces as needed and to sell to Sharpe
several times a week. The duration and frequency of the
interactions and drug sales all showed that a conspiracy
existed. These agreements “made in addition to or beyond the
bare buy-sell transaction may be taken to infer a joint
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enterprise . . . and thereby support finding of conspiracy.”
United States v. Edmonds, 679 F.3d 169, 174 (4th Cir. 2012).
Here there is ample evidence that Watson, Boston, and others
agreed to distribute drugs within a certain area and that they
facilitated each other’s efforts to that end. In sum, there is
sufficient evidence to support Watson’s conviction for
distribution and possession with the intent to distribute crack
cocaine.
III.
This Court reviews de novo a district court’s ruling on a
vindictive prosecution motion. United States v. Wilson, 262
F.3d 305, 316 (4th Cir. 2001). Watson contends that his due
process rights were violated by the “sloppy manner in which the
government sought harsher punishment based on slight evidence a
week before trial in order to intimidate [him] into giving up
his right to a jury trial.” The burden is on Watson to prove
either actual vindictiveness or “circumstances that support a
presumption of vindictiveness and thereby shift to the
government the burden of justifying its conduct.”
Id. at 317.
Watson argues that the proceedings show a presumption of
vindictiveness. We are unconvinced.
The Supreme Court has held that vindictiveness cannot be
shown by a prosecutor’s decision to seek additional charges
8
against a defendant who decides to plead not guilty.
Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978). The Court
suggested that there were limits on the prosecutor’s discretion.
For example, the decision could not be based on “race or
religion.”
Id. at 364. However, a “course of conduct engaged
in by the prosecutor in this case, which no more than openly
presented the defendant with the unpleasant alternatives of
forgoing trial or facing charges on which he was plainly subject
to prosecution, did not violate the Due Process Clause of the
Fourteenth Amendment.”
Id. at 365. Watson’s reliance on Lafler
v. Cooper,
132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S.
Ct. 1399 (2012), is misplaced. Lafler and Frye addressed the
Sixth Amendment right to effective counsel and recognized the
necessity of that right during the negotiation and plea process.
These cases, quite frankly, have nothing to do with the
prosecutor’s conduct or discretion to bring charges as he or she
chooses.
In this case, there was nothing wrong with the prosecutor’s
decision to seek harsher charges should Watson choose not to
plead guilty. As the Supreme Court has decided, “While
confronting a defendant with the risk of more severe punishment
clearly may have a ‘discouraging effect on the defendant's
assertion of his trial rights, the imposition of these difficult
choices [is] an inevitable’-and permissible-‘attribute of any
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legitimate system which tolerates and encourages the negotiation
of pleas.’” Bordenkircher, 434 U.S. at 364 (quoting Chaffin v.
Stynchcombe,
412 U.S. 17, 31 (1973)). Thus, Watson has failed
to show any vindictiveness of the part of the prosecution, and
his claim fails.
IV.
Finding no error, this case is
AFFIRMED.
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