Filed: Jan. 24, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4659 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DOUGLAS LEE STALLWORTH, Defendant - Appellant. No. 09-4796 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE EDWARD BAUMGARDNER, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:08-cr-00024-jpj-pms-36; 1:08-cr-00024-jpj-pms-41) Argued: October 25, 2011 Decid
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4659 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DOUGLAS LEE STALLWORTH, Defendant - Appellant. No. 09-4796 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE EDWARD BAUMGARDNER, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:08-cr-00024-jpj-pms-36; 1:08-cr-00024-jpj-pms-41) Argued: October 25, 2011 Decide..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4659
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS LEE STALLWORTH,
Defendant - Appellant.
No. 09-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE EDWARD BAUMGARDNER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00024-jpj-pms-36; 1:08-cr-00024-jpj-pms-41)
Argued: October 25, 2011 Decided: January 24, 2012
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Timothy Worth McAfee, MCAFEE LAW FIRM, PC, Norton,
Virginia; Dennis Jones, Lebanon, Virginia, for Appellants.
Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee. ON BRIEF: Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Douglas Stallworth and Bruce Baumgardner were convicted as
participants in a large drug-trafficking conspiracy in Bristol,
Virginia, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). In
addition, Baumgardner was convicted of maintaining a place for
the purpose of distributing drugs, in violation of 21 U.S.C.
§ 856(a)(1). Because each defendant had two prior felony drug
convictions, the district court sentenced each to life
imprisonment, in accordance with 21 U.S.C. § 841(b)(1)(A).
On appeal, Stallworth and Baumgardner challenge both their
convictions and sentences, assigning numerous errors. For the
reasons that follow, we affirm.
I
At some time during the 2001-2003 period, Derek Evans, a
long-time distributor of crack cocaine, moved from Johnson City,
Tennessee, to the Bristol, Virginia/Bristol, Tennessee area
(“Bristol”) because the drug market in Johnson City had become
“too congested.” Stallworth told Evans, it would be “a lot
easier” in Bristol because the market was “wide open” and there
was “no territorial situation” with which to contend.
After Evans moved to Bristol, he together with Bryant
Pride, Kerry Lee, and Oedipus Mumphrey headed up a large cocaine
distribution operation. For several months in 2005 or 2006,
3
Evans and Lee brought into the area as much as five kilograms of
cocaine at a time. And during the period of 2005 to 2007,
Mumphrey also supplied Evans with cocaine, making deliveries
every week to ten days of up to three kilograms at a time.
Evans, Pride, and Mumphrey developed networks, distribution
points, and sub-distributors. Evans testified that the
conspiracy would purchase a kilogram of cocaine for around
$25,000 and then would cook it into crack cocaine, which members
were able to sell for between $36,000 and $42,000. He also
testified that the conspiracy had from 350 to 500 customers.
On March 28, 2008, 51 persons were indicted and charged
with conspiracy to traffic in 50 grams or more of crack cocaine
and 500 grams or more of cocaine powder, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A). Stallworth and Baumgardner were
named as two of the conspirators, and, in addition, Baumgardner
was charged with maintaining a place for the purpose of
distributing illegal drugs, in violation of 21 U.S.C. §
856(a)(1).
A jury convicted Stallworth and Baumgardner of the
conspiracy charge and Baumgardner of the charge of maintaining a
place for drug distribution. Because each defendant had at
least two previous felony drug convictions, the court sentenced
each to the statutorily mandated minimum sentence of life
imprisonment.
4
Stallworth and Baumgardner filed appeals, each challenging
aspects of their convictions and sentences.
II
Stallworth and Baumgardner contend that the evidence was
insufficient to convict them of conspiracy. They acknowledge
that the evidence shows that they were addicts and customers of
the conspiracy, but they argue that a buyer/seller relationship
between them and members of the conspiracy does not establish
participation in the conspiracy.
We agree that evidence of a simple buyer/seller
relationship is insufficient to support a conspiracy conviction.
More is required. As we stated in United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc), to be part of a
conspiracy a defendant must knowingly and voluntarily become
part of the conspiracy. “Only a slight connection need be made
linking a defendant to the conspiracy to support a conspiracy
conviction.”
Id. at 862.
In this case, Stallworth and Baumgardner do not take issue
with the fact that Evans, Pride, Lee, and Mumphrey headed up a
large cocaine distribution conspiracy in the Bristol area.
Rather, they argue that the evidence shows only that they were
simply customers of that operation and not co-conspirators. In
making that argument, however, they overlook several items that
5
were proved at trial. It was Stallworth who persuaded Evans to
bring his drug distribution business to Bristol because the
market was wide open there. Once Evans established his
operation in Bristol, he saw Stallworth virtually every day that
the two were out of prison. More importantly, Stallworth
assisted Evans by arranging drug transactions and also acted as
a street-level distributor. Evans testified, “[Stallworth]
called me up. I mean, you know, I seen him about every day. I
talked to him, you know, we kick it. He knows people that wants
something, wants to get high, I got what they need to get high,
so that’s the kind of relationship we had. He would come see
me, holler at me, I hit him, and that’s it.” Summarizing the
arrangement Evans stated, “When people wanted to get high, they
would call [Stallworth] and he would call me, and I would hook-
up with [Stallworth], and then he goes serve them.” Moreover,
the record shows a continuous stream of transactions in which
Stallworth bought from Evans three to seven days a week,
frequently in distribution quantities. Further, several
witnesses testified to buying drugs from Stallworth.
The record reflects much of the same involvement on the
part of Baumgardner. He too was a street-level distributor,
perhaps selling even more extensively than Stallworth. One of
the conspirators, Paul Vaughn, testified that Baumgardner bought
a quarter-ounce of crack (roughly 7 grams) from Mumphrey three-
6
to-four times per day in 2007. He was moving so much cocaine
that he was known as “VIP.” Numerous witnesses testified to
buying drugs from Baumgardner, especially at his residence,
which was used as a distribution point for cocaine.
As the district court concluded, “In sum, the evidence
showed that Baumgardner and Stallworth frequently bought crack
from high-level members of the Evans drug organization and sold
it to various users on multiple occasions. This certainly
qualifies as more than ‘evidence of a buy-sell transaction.’”
(Quoting United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir.
1993)).
In addition, Stallworth contends that the evidence did not
support the jury’s finding that he was involved in distributing
at least 50 grams of crack cocaine. But again, this overlooks
the evidence. Evans testified that he sold half-gram, gram, and
“eight-ball” (roughly 3.5 grams) quantities to Stallworth three
times a week whenever the two were both out of jail. Vaughn
testified that he witnessed Stallworth purchasing a quarter-
ounce from Mumphrey, and Lee testified that he witnessed
Stallworth buy from “an eight-ball to a quarter.” In view of
the testimony that Stallworth was buying and reselling eight-
balls and quarter-ounces of crack cocaine regularly over a
period of years, the jury had ample evidence from which to
conclude that the amount totaled at least 50 grams.
7
While it is not clear whether Baumgardner is challenging
the sufficiency of evidence to support his distribution of 50
grams, the evidence was yet stronger than that for Stallworth.
Conspirator Paul Vaughn testified that Baumgardner bought a
quarter-ounce three to four times per day during a period in
2007. At that rate, 50 grams was achieved in only three days.
Finally, Baumgardner contends that the evidence was
insufficient to show that he maintained a place for the purpose
of distributing controlled substances. Baumgardner concedes
that crack cocaine was sold from his residence, but he contends
that the evidence does not establish that “the sole, primary
and/or exclusive ‘purpose’ for maintaining the residence . . .
was for the ‘purpose’ of distribution of illegal drugs.” The
case law, however, unanimously construes § 856(a)(1) as not
requiring that a residence be maintained exclusively for the
distribution of drugs. Obviously, if the defendant lives in the
residence, it also has the purpose of housing him. Rather, the
defendant must have the distribution of drugs as a specific
purpose for the residence, which is more than a mere collateral
purpose. See United States v. Soto-Silva, 129 F.3d 340, 346 n.4
(5th Cir. 1997); United States v. Verners,
53 F.3d 291, 295
(10th Cir. 1995); United States v. Roberts,
913 F.2d 211, 220
(5th Cir. 1990).
8
In this case, evidence shows that Baumgardner maintained
his residence for the specific purpose of assisting in the
distribution of crack and cocaine. He maintained it as a place
for crack addicts to gather, purchase, and use crack cocaine.
Three co-conspirators testified that Baumgardner’s house was a
gathering place and that crack was readily available in the back
room of the house, where multiple dealers, including Baumgardner
himself, often sold crack cocaine. Moreover, when the police
executed a search warrant at the house during the early morning
of April 30, 2008, Baumgardner was in his bedroom and four to
five others were in the living room. They all appeared to be in
a drug-induced state, and several admitted to being “drug sick.”
Police observed syringes and hypodermic needles throughout the
house, as well as crack pipes and other drug paraphernalia.
Digital scales were found under the mattress of the bed in which
Baumgardner was lying.
In sum, we conclude that there was ample evidence to
support the conviction of both defendants.
III
Stallworth and Baumgardner next contend that they are
entitled to a new trial because co-conspirators Evans and Vaughn
later recanted testimony they gave against Stallworth and
Baumgardner at trial.
9
A motion for a new trial based on the recantation of
testimony by a material government witness may be granted when:
(a) The court is reasonably well-satisfied that the
testimony given by a material witness is false;
(b) That without it the jury might have reached a
different conclusion; and
(c) That the party seeking the new trial was taken by
surprise when the false testimony was given and was
unable to meet it or did not know of its falsity until
after the trial.
United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976).
And “[t]he failure to meet any one of the Wallace test’s three
prongs is fatal.” United States v. Lighty,
616 F.3d 321, 374-75
(4th Cir. 2010).
In this case, following a hearing on the witnesses’ efforts
to recant, the court found that the defendants had failed to
meet the first prong. It found the recantations “not credible,”
and stated that it did “not believe that either Vaughn or Evans
fabricated their prior trial testimony.” The court concluded
that while these witnesses’ testimony at trial was consistent,
“the recantations [were] overwhelmingly inconsistent and
unreliable,” and that the claims made “fluctuated from one
[recantation] letter to the next and in their testimony.” The
court pointed out that other witnesses corroborated Vaughn’s and
Evans’ trial testimony. It found that since the recantation
letters started only after Vaughn was housed in jail with
Baumgardner and were written in different handwriting, they
10
“were partly motivated by the pressure or intimidation likely
exerted on them by their codefendants in prison, and partly
motivated by the misguided and self-created illusion . . . they
would somehow avoid punishment for their crimes.” Finally,
another co-conspirator, Kerry Lee, testified that co-conspirator
Charles King “had forced him to write [a recanting letter] while
they were jailed together.” The court concluded that Evans and
Vaughn were trying “to game the system.”
We have reviewed the evidence carefully and find that the
district court’s findings are amply supported by the record and
that the court did not abuse its discretion in denying the
defendants’ motion for a new trial.
IV
Stallworth and Baumgardner contend that they are entitled
to a new trial also because the government failed to disclose
evidence to them that could have been used to impeach Vaughn, in
violation of Giglio v. United States, 405 U.S. 150 (1972). They
claim that the government failed to disclose that Detective
Majors had promised Vaughn that he would not be charged with
drug offenses in state court. While the record is not totally
clear about whether the statement was made or who made it, the
district court nonetheless concluded that the failure to
11
disclose such statement was not material inasmuch as the result
of the trial would not have been any different.
First of all, Vaughn was cross-examined on the fact that
his substantial assistance could be recognized in his own
federal prosecution. And second, Vaughn’s testimony was
corroborated by Evans, who also sold cocaine to Baumgardner and
Stallworth; by Calhoun and Mead who bought from Baumgardner; and
by co-conspirator Norton who bought from Stallworth. The
district court concluded, “under these circumstances, the
presumed failure to disclose was not material,” and we agree.
V
Finally, the defendants challenge their sentences.
Stallworth challenges the district court’s finding as to drug
weight, and both defendants challenge the life sentence as
disproportionate under the Eighth Amendment bar against cruel
and unusual punishment.
With respect to Stallworth’s argument about the drug
weight, we conclude that it is irrelevant. Stallworth’s
Guideline range was not determined by drug weight but by the
statutory mandatory minimum sentence required by 21 U.S.C. §
841(b)(1)(A), prescribing a life sentence for a defendant who
has “two or more prior convictions for a felony drug offense.”
In this case there is no dispute that Stallworth had two prior
12
felony drug convictions. Accordingly, any recalculation of his
drug amount would be immaterial.
Finally, we reject the argument that the statutorily
mandated life sentence for a third felony conviction for drug
distribution is cruel and unusual, in violation of the Eighth
Amendment. See United States v. D’Anjou, 16 F.3d 604, 613 (4th
Cir. 1994); United States v. Kratsas,
45 F.3d 63 (4th Cir.
1995).
Accordingly, the convictions and sentences of Stallworth
and Baumgardner are
AFFIRMED.
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