Filed: Jan. 10, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4406 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MEEHWAN RO, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09- cr-00356-RWT-1) Argued: October 27, 2011 Decided: January 10, 2012 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4406 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MEEHWAN RO, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09- cr-00356-RWT-1) Argued: October 27, 2011 Decided: January 10, 2012 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Ju..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MEEHWAN RO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cr-00356-RWT-1)
Argued: October 27, 2011 Decided: January 10, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Diaz concurred.
ARGUED: Marc Gregory Hall, HALL & CHO, P.C., Rockville,
Maryland, for Appellant. Deborah A. Johnston, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, Mara Zusman Greenberg, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Defendant Meehwan Ro appeals from convictions and sentences
for being a felon in possession of a firearm, possession of a
firearm with an obliterated serial number, and possession with
intent to distribute marijuana. After a careful review of the
record, we conclude that Defendant received a fair trial and
that the sentence imposed was both procedurally and
substantively reasonable.
I.
On June 11, 2009, a search warrant was executed on
Defendant’s home while Defendant, his girlfriend, and his father
were present. Law enforcement officers had been investigating
suspected drug activity at the home and nine days before the
execution of the search warrant had found suspected drug
paraphernalia and marijuana residue in trash bags recovered from
the house.
During their search of Defendant’s home pursuant to the
search warrant, law enforcement officers recovered what was
later determined to be approximately 135 grams of marijuana,
digital scales, a grinding tool, and other drug paraphernalia
from the master bedroom. Officers also found Defendant’s
wallet, .45-caliber cartridges, nine-millimeter bullets, and a
firearm magazine in the master bedroom, as well as a gun holster
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in the kitchen and a .45-caliber handgun in the top drawer of a
filing cabinet in the garage.
Defendant was indicted on October 28, 2009 on one count
each of being a felon in possession of a firearm, possession of
a firearm with an obliterated serial number, and possession with
intent to distribute marijuana. At trial, both Defendant’s
father and girlfriend testified that the firearm, ammunition,
and marijuana did not belong to them. Defendant’s sister
testified that their other brother had purchased the gun in
response to a robbery of the family’s liquor store and that
Defendant’s brother had regular access to the house. However,
that brother testified that he owned neither the gun nor the
ammunition recovered during the search. Defendant did not
contest that the marijuana belonged to him but instead argued
that the drugs were for personal use rather than distribution.
The jury also heard evidence of Defendant’s prior drug
conviction and possession of a firearm. After the district
court denied Defendant’s pretrial motion to exclude evidence of
the 1999 conviction and again overruled the motion during trial,
Defendant stipulated to his 1999 conviction for possession with
intent to distribute marijuana. In addition, the arresting
officer in that case testified that in 1998 a firearm was
recovered from Defendant’s bedroom when a search warrant,
incident to the 1999 conviction, was executed on Defendant’s
3
home. Defendant’s testimony from his 1999 trial that he had
purchased a handgun and kept it in his bedroom closet, was also
read into evidence. The district court gave a limiting
instruction concerning that evidence. However, Defendant was
barred from introducing evidence that he was ultimately
acquitted of the possession-of-a-firearm charge at his 1999
trial.
At the conclusion of the two-day trial, the jury found
Defendant guilty on all three charges. During sentencing, the
district court found that Defendant’s 1999 conviction for
possession with intent to distribute marijuana occurred within
ten years of the relevant conduct at issue here. Accordingly,
the district court started Defendant at level twenty for
purposes of the United States Sentencing Guidelines. In
addition, the district court enhanced Defendant’s offense level
by another eight levels because Defendant possessed the firearm—
which had an obliterated serial number—in “sufficient nexus”
with another felony offense, i.e., possession with intent to
distribute. The district court sentenced Defendant to a total
of ninety months’ imprisonment on all counts. Defendant
challenges his conviction and sentence.
4
II.
On appeal, Defendant argues that the trial court erred by:
(1) admitting into evidence Defendant’s 1999 conviction for
possession with intent to distribute marijuana and 1998
possession of a firearm under Federal Rule of Evidence 404(b);
(2) improperly denying Defendant the ability to admit into
evidence that he was acquitted of the firearm possession charge
in 1999; (3) considering the 1999 conviction as a prior offense
committed within the last ten years under the United States
Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(a)(4)(A); and
(4) applying the enhancement under U.S.S.G. § 2K2.1(b)(6)
because there was not a sufficient nexus between the gun and the
marijuana. We consider each argument in turn.
A.
First, Defendant contends that the trial court erred by
admitting into evidence Defendant’s 1999 possession with intent
to distribute marijuana conviction and 1998 possession of a
firearm. Specifically, Defendant maintains that this evidence
was irrelevant and unnecessary to the Government’s case against
him. We disagree.
At the time of Defendant’s trial, Federal Rule of Evidence
404(b) provided that evidence of prior crimes, wrongs, or bad
acts may be admissible for purposes other than to establish a
5
propensity for criminal activity “to prove the character of a
person in order to show action in conformity therewith.” 1 Such
purposes include “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. Further, evidence of prior bad acts is
admissible so long as it is relevant to an issue other than the
defendant’s character, necessary, and reliable. United States
v. Queen,
132 F.3d 991, 997 (4th Cir. 1997). If evidence of
prior crimes, wrongs, or bad acts meets these criteria and its
probative value is not substantially outweighed by its
prejudicial effect, it may be admitted.
Id. This Court reviews
a district court’s admission of evidence for an abuse of
discretion. United States v. Hodge,
354 F.3d 305, 312 (4th Cir.
2004).
Significantly, “[w]e have long treated Rule 404(b) as an
inclusionary rule, permitting introduction of all evidence
except that which proves only criminal disposition.” United
States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997). Likewise,
in Queen, an opinion in which this Court conducted a full
examination of our Rule 404(b) jurisprudence, we emphasized that
“[t]he more similar the extrinsic act or state of mind is to the
1
Effective December 1, 2011, the precise wording of Rule
404(b) was slightly amended; however, its substantive meaning
remains the same.
6
act involved in committing the charged offense, the more
relevance it acquires toward proving the element of intent.”
132 F.3d at 996. Moreover, we noted that the term “necessary”
does not require absolute necessity but instead only that the
evidence be “probative of an essential claim or an element of
the offense.”
Id. at 997.
Here, Defendant asserts that the passage of time since the
1998 possession charges and 1999 conviction diminishes their
relevance to this prosecution. He further contends that his
prior bad acts were not evidence necessary to prove an element
of the charges against him in this case. In support of his
arguments, Defendant cites to United States v. Davis, in which
this Court found evidence of prior drug sales to be “so remote
in time and so possessed of a propensity to prejudice” that the
district court had erred by admitting that evidence to prove the
defendant’s intent to commit the offenses in question. 657 F.2d
637, 639 (4th Cir. 1981).
We find Davis to be distinguishable, however, since even
though “the prior acts [in Davis]. . . began eleven years and
ended six years before,” “[n]o cautionary instruction was asked
or given” at trial. Id. Further, the illegal drug sales in
question were made to children under the age of thirteen and
thus highly prejudicial.
Id. at 639-40. This Court also held
in Davis that any such error was harmless given the “conclusive”
7
evidence of the defendant’s guilt, including testimony from co-
conspirators who witnessed him cutting and repackaging heroine
for distribution. Id. at 640.
At trial in this case, Defendant did not contest that the
marijuana at issue was his; rather, he maintained that it was
for personal use, not for distribution. As such, the Government
argued that the 1999 conviction was relevant and necessary to
show intent. In addition, because knowledge is an element of
the offense of felon in possession of a firearm, United States
v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (reciting the
elements required for conviction under 18 U.S.C. § 922(g)(1)),
the Government maintained that the 1998 possession of a firearm
was likewise relevant and necessary to establish Defendant’s
knowing possession of the handgun in this case.
The district court agreed with the Government that the
evidence was admissible to show Defendant’s intent and knowledge
with respect to the offenses charged. Thus, the district court
denied Defendant’s motion in limine to exclude evidence of his
1999 conviction and possession of a firearm. Moreover, when the
evidence was admitted at trial, the district court gave the
jurors a limiting instruction that they were not to consider the
evidence as “somebody did something on a prior occasion and then
infer, therefore, that they did it again,” but rather, only for
one of the allowable purposes under Rule 404(b).
8
We observe that although ten years is a relatively lengthy
time between Defendant’s prior bad acts and the charged
offenses, the similarities are overwhelming. Indeed, the
circumstances are essentially exactly the same, with the only
difference the amount of the marijuana seized—greater in this
case than in 1999—which strengthens the relevance of the prior
bad acts and makes their relative remoteness less important. In
light of Defendant’s argument that the marijuana was for
personal use and not for distribution, the issue of intent was
of critical importance at trial. As such, the Rule 404(b)
evidence of Defendant’s prior bad acts was both relevant and
necessary to show Defendant’s intent to distribute marijuana and
his knowing possession of a firearm.
We further agree with the district court that its probative
value was not substantially outweighed by its prejudicial
effect. Under the circumstances of this case, the district
court’s admission of the evidence was not an abuse of
discretion. 2
2
In addition, the transcript of the motions hearing reveals
that the district court thoughtfully and carefully considered—
and ultimately excluded—several of Defendant’s other potentially
relevant prior bad acts, such as two earlier simple possession
charges. Allowing some Rule 404(b) evidence while excluding
other supports our finding that the district court did not act
either “arbitrarily or irrationally” in reaching its decision to
admit this evidence. United States v. Simpson, 910 F.2d 154,
157 (4th Cir. 1990) (noting that an abuse of discretion “occurs
(Continued)
9
B.
Next, Defendant argues that the district court erred by
allowing the Government to admit evidence of his 1998 possession
of a firearm while denying Defendant the ability to show that he
was ultimately acquitted of that charge. Our standard of review
is again for an abuse of discretion. Hodge, 354 F.3d at 312.
At trial, the police officer who conducted the 1998 search
of Defendant’s residence testified that a handgun was recovered
from Defendant’s bedroom. In addition, the Government read into
evidence Defendant’s own testimony from his 1999 trial, in which
Defendant stated that he had purchased a handgun and kept it in
his bedroom closet. Defense counsel then objected, renewing his
pre-trial request that the jury hear that Defendant was
ultimately acquitted of the firearm possession charge stemming
from the 1998 search. The district court overruled the
objection, stating that it “f[ou]nd no basis for requiring the
admission of the acquittal, especially since the charge was not
the same charge in this case, but rather the acquittal was for
possession of a firearm in connection with a drug trafficking
crime.”
only when it can be said that the trial court acted arbitrarily
or irrationally in admitting evidence” (internal quotation marks
and citations omitted)).
10
Defendant has failed to show an abuse of discretion in this
evidentiary ruling, which was consistent with case law
precedent. See, e.g., Prince v. Lockhart, 971 F.2d 118, 122
(8th Cir. 1992) (describing “general rule” why judgments of
acquittal are “not generally admissible,” as they are hearsay
and “not generally relevant,” and citing cases to that effect);
United States v. Smith,
981 F.2d 1252,
1992 WL 369904, *2 (4th
Cir. 1992) (unpublished) (“Evidence of a prior acquittal is not
relevant because it does not prove innocence but rather merely
indicates that the prior prosecution failed to meet its burden
of proving beyond a reasonable doubt at least one element of the
crime.” (internal quotation marks, alteration, and citation
omitted)).
As noted by the district court, Defendant was acquitted of
a charge different from the one at issue in this case.
Accordingly, his acquittal did not have “any tendency to make a
fact more or less probable than it would be without the
evidence,” that is, the acquittal was not relevant. Fed. R.
Evid. 401. Further, even if relevant, evidence of the acquittal
arguably could have confused the issues between simple
possession of a firearm and possession of a firearm in
furtherance of drug trafficking, thereby misleading the jury.
See Fed. R. Evid. 403 (“The court may exclude relevant evidence
if its probative value is substantially outweighed by a danger
11
of . . . confusing the issues [or] misleading the jury.”).
Defendant has failed to establish that this ruling was an abuse
of discretion.
C.
With his next argument, Defendant contends that the
district court erred in considering his 1999 conviction for
possession with intent to distribute as a prior offense
committed within the last ten years under U.S.S.G. §
2K2.1(a)(4)(A). Specifically, Defendant maintains that the
district court should not have agreed with the Government’s
position that the offenses at issue here dated back to July
2008. The difference between the two base offense levels is
significant: With the determination, Defendant’s base level was
twenty; without it, Defendant’s base level would have been only
fourteen.
We will affirm a sentence imposed by the district court as
long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005); United States v. Booker,
543 U.S. 220, 261-62 (2005)
(stating that sentencing determinations are reviewed for
reasonableness). A sentence may be unreasonable for both
substantive and procedural reasons. United States v. Herder,
594 F.3d 352, 361 (4th Cir.) (quoting and citing United States
12
v. Montes-Pineda, 445 F.3d 375, 378 (4th Cir. 2006)), cert.
denied,
130 S. Ct. 3440 (2010). An error of law or fact can
render a sentence unreasonable, but a sentence within a properly
calculated range is presumptively reasonable. United States v.
Green,
436 F.3d 449, 456-57 (4th Cir. 2006). In considering
whether the sentence is unreasonable, we review the district
court’s factual findings for clear error and its legal
conclusions de novo. United States v. Hampton,
441 F.3d 284,
287 (4th Cir. 2006).
A district court’s “relevant conduct” finding under
U.S.S.G. § 1B1.3(a)(2) is reviewed for clear error. Hodge, 354
F.3d at 313. At sentencing, a district court properly may
consider offenses for which the defendant has neither been
charged nor convicted, provided they constitute “relevant
conduct.” United States v. Bowman,
926 F.2d 380, 381–82 (4th
Cir. 1991). A district court may look beyond the dates in the
indictment if a preponderance of the evidence supports a
determination that the “relevant conduct” began earlier. See,
e.g., United States v. Kennedy,
32 F.3d 876, 890-91 (4th Cir.
1994) (holding that when determining the starting point of the
conspiracy, the district court had the authority to look beyond
the date alleged in the indictment for a drug offense to “any
relevant conduct”).
13
The Sentencing Guidelines provide that “relevant conduct”
is defined as “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense.” U.S.S.G. § 1B1.3; see also United States v.
McAllister, 272 F.3d 228, 233-34 (4th Cir. 2001) (noting that
“relevant conduct” includes “activity that was part of the same
course of conduct or common scheme as the offense of conviction”
(internal quotation marks and citation omitted)).
At sentencing, the district court relied on the following
facts to determine that Defendant’s offending relevant conduct
dated to July 2008: (1) Defendant possessed a distributable
amount of marijuana and the materials with which to distribute
it; (2) one does not get into the drug distribution business
overnight; and (3) Defendant had nearly ninety telephone
contacts with another drug dealer between July and November
2008, with calls continuing up to at least two months before the
execution of the search warrant in July 2009. The Government
offered evidence of a direct investigative link between those
phone calls and the subsequent search warrant and discovery of
the drugs and gun at Defendant’s residence. Specifically, the
Drug Enforcement Agency (DEA) task force officer learned from a
14
confidential informant that another individual was selling
drugs; the officer set up controlled buys from that individual;
and that individual’s phone records led the officer to
Defendant.
Although Defendant contends that relying on this hearsay
evidence violates his rights under the Confrontation Clause,
this Court has previously held that “the traditional rules of
evidence are not applicable to sentencing proceedings” and that
“a sentencing court may give weight to any relevant information
before it, including uncorroborated hearsay, provided that the
information has sufficient indicia of reliability to support its
accuracy.” United States v. Wilkinson, 590 F.3d 259, 269 (4th
Cir. 2010); see also United States v. Bras,
483 F.3d 103, 109
(D.C. Cir. 2007) (“Nothing in Crawford [v. Washington,
541 U.S.
36 (2004)] suggests that the Court intended to overturn its
precedents permitting the use of hearsay at sentencing.”).
Here, the challenged information came from a DEA task force
officer and explained his investigatory conduct leading to the
search of Defendant’s residence and the ultimate discovery of a
large quantity of marijuana, drug paraphernalia, and a gun. We
find this to be more than sufficient indicia of reliability.
Likewise, under a preponderance of the evidence standard,
we see no clear error in the district court’s determination that
the phone calls dating back to July 2008 constituted “relevant
15
conduct” within the meaning of U.S.S.G. § 1B1.3(a)(2). While
true that we cannot know definitively the nature of, or what was
discussed during, the phone calls between Defendant and the
other individuals, it was not unreasonable for the district
court to find that a preponderance of the evidence, including
the direct investigative links, supported the conclusion that
the calls were to further Defendant’s marijuana distribution
activities. As such, the district court did not commit clear
error when it determined that Defendant’s “relevant conduct”
fell within the requisite ten-year period to make the higher
base offense level applicable.
D.
Finally, Defendant argues that the district court erred by
applying the sentencing enhancement under U.S.S.G. §
2K2.1(b)(6), i.e., that Defendant possessed the firearm in
connection with another felony. Specifically, he contends that
in light of the handgun’s location in the garage, separated from
the marijuana and drug paraphernalia in the master bedroom, and
a lack of evidence that he ever used the handgun, the Government
failed to show the requisite nexus between his drug crime and
the handgun. Our review of this issue is the same as
Defendant’s argument concerning the district court’s “relevant
conduct” determination. United States v. Garnett, 243 F.3d 824,
16
828 (4th Cir. 2001) (“The government bears the burden of proving
the facts necessary to establish the applicability of [the
U.S.S.G. § 2K2.1(b)(5)] enhancement by the preponderance of the
evidence, and we review the district court’s findings of fact
for clear error, giving due deference to the district court’s
application of the Guidelines to the facts.”).
At sentencing, the district court noted that ammunition was
found in close proximity to the drugs in the master bedroom, the
gun was located in a place convenient to enter and exit from the
house, and Defendant’s father had not seen the gun in October
2008 when he cleaned out the filing cabinet, suggesting that it
was not kept there all the time. Moreover, the district court
found the obliterated serial number to be especially
significant, as in the view of the district court, that is the
type of weapon expected to be associated with dealing drugs.
Under a preponderance of the evidence standard, we see no
clear error in the district court’s determination that the
firearm was used in connection with Defendant’s marijuana
distribution activities. See, e.g., United States v. Blount,
337 F.3d 404, 411 (4th Cir. 2003) (“[A] weapon is used or
possessed ‘in connection with’ another offense if the weapon
facilitates or has a tendency to facilitate the other offense.”
(internal quotation marks and citation omitted)); U.S.S.G. §
2K2.1 cmt. n.3 (“The enhancement should be applied if the weapon
17
was present, unless it is clearly improbable that the weapon was
connected with the offense.”).
III.
In sum, Defendant received a fair trial, free of
prejudicial error, and the sentence imposed was both
procedurally and substantively reasonable.
AFFIRMED
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