Filed: Mar. 19, 2019
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4095 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH HOWARD DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00065-RLV-DCK-1) Argued: January 31, 2019 Decided: March 19, 2019 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4095 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH HOWARD DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00065-RLV-DCK-1) Argued: January 31, 2019 Decided: March 19, 2019 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH HOWARD DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00065-RLV-DCK-1)
Argued: January 31, 2019 Decided: March 19, 2019
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Wilkinson and Judge King joined.
ARGUED: Eric Jason Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: R. Andrew
Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:
Challenging his conviction for distribution of over 50 grams of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), Joseph Davis contends that the
district court erred (1) in admitting an out-of-court statement that a confidential informant
made about having purchased drugs from Davis prior to the relevant investigation; (2) in
failing to require adequate authentication of an officer’s photographs of the informant’s
cellphone screen as she purportedly texted Davis in preparation for a controlled buy; and
(3) in admitting a recording of a telephone conversation between the informant and
Davis, authenticated by an officer’s identification of Davis’s voice. Davis also contends
that the district court erred in failing to explain its use of coconspirator testimony to find
drug quantities for sentencing purposes after the jury had acquitted Davis on a charged
conspiracy count.
For the reasons that follow, we conclude that the district court did not abuse its
discretion in its admission of the challenged evidence. We also conclude that Davis’s
sentence was not procedurally unreasonable. The district court adequately explained its
decision to credit the testimony of Davis’s coconspirators about drug quantities despite
the acquittal on the conspiracy count. Accordingly, we affirm.
I
Davis was indicted in four counts with methamphetamine trafficking and related
violations in Charlotte, North Carolina, during the period from 2014 to 2016. Count I
alleged that Davis participated in a conspiracy to distribute 50 grams or more of
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methamphetamine and 500 grams or more of a substance containing methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count II charged Davis
with possession of a firearm in furtherance of the conspiracy, in violation of 18 U.S.C.
§ 924(c). Count III alleged that Davis distributed 50 grams or more of methamphetamine
on or about October 12, 2016, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
And Count IV charged Davis with possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1).
At trial, the government offered evidence of an alleged conspiracy in which
Reggie Shaw supplied Davis with substantial amounts of methamphetamine to sell to
Roderick Roberts and Tangie Carroll. It also offered evidence of a controlled buy on or
about October 12, 2016, in which Davis sold a confidential informant (hereafter “the
Informant”), 54 grams of pure methamphetamine. That transaction took place at a
mailbox cluster for the apartment complex where Davis lived and was witnessed by an
undercover officer. Finally, the government offered evidence of Davis’s illegal
possession of firearms.
The jury found Davis not guilty on Counts I and II, which charged Davis with
conspiracy to traffic in methamphetamine and possession of a firearm in furtherance of
that conspiracy, but found him guilty of distributing 50 grams or more of
methamphetamine on or about October 12, 2016, and possession of a firearm by a felon.
The district court imposed a downward-variance sentence of 260 months’
imprisonment, after calculating an advisory Guidelines range of 360 months’ to life
imprisonment. In determining the offense level, the court affirmed the presentence
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report’s determination that Davis was responsible for 4.5 kilograms or more of
methamphetamine based on the testimony given at trial by Davis’s alleged
coconspirators, Shaw and Carroll. Based on the jury’s acquittal on the conspiracy count,
Davis objected to the district court’s use of the coconspirators’ testimony to determine
drug quantities. The district court overruled the objection, finding that the alleged
coconspirators testified “convincingly” as to drug amounts.
Davis filed this appeal challenging his conviction, based on the allegedly
erroneous evidentiary determinations, and his sentence, based on the court’s purported
failure to explain why it relied on acquitted conduct.
II
Challenging his conviction, Davis contends that the district court erred in
admitting three items of evidence during trial: (1) the testimony of Officer Jeff Jenkins
explaining that he enlisted the Informant to participate in a controlled buy because she
told him that she had purchased methamphetamine from Davis; (2) photographs that
Officer Jenkins took of the Informant’s cellphone screen as she was purportedly texting
with Davis; and (3) a recording of a telephone call between the Informant and a man
whom Officer Jenkins identified as Davis. We address each of these points in order,
reviewing them for abuse of discretion. See United States v. Burfoot, 899 F.3d 326, 340
(4th Cir. 2018).
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A
Davis first contends that the district court erred in admitting an out-of-court
statement of the Informant through the testimony of Officer Jenkins, who was explaining
why he enlisted the Informant to make a controlled buy from Davis. Jenkins testified that
the Informant had told him that she had previously purchased methamphetamine from
Davis, as follows:
Q. Can you tell us what you did with regard to investigating Mr. Davis?
A. We had been involved in a methamphetamine conspiracy in the Western
District of North Carolina, and Mr. Davis’s name came up in that
investigation prior to me meeting him.
Q. What proactive steps did you take in the investigation?
A. I had an informant that had came forward to me and stated that they
were currently purchasing methamphetamine from Joseph Davis and could
facilitate a purchase during a controlled buy while cooperating with us in
that investigation.
(Emphasis added). Davis did not object to the evidence at trial. He now argues,
however, that we should conclude that Jenkins’s statement about what the Informant had
stated to him was inadmissible hearsay under Federal Rule of Evidence 802 and that it,
together with the other inadmissible evidence challenged on appeal, “requires this court
to reverse his conviction and remand for a new trial.”
Yet, even as Davis challenges Jenkins’s testimony about what the Informant had
told him, Davis did not at trial, nor does he now on appeal, challenge Officer Joseph
Barringer’s testimony to the same effect. Barringer testified:
Q. All right. Now, at some point, were you involved in a controlled
purchase of methamphetamine from the defendant in this case?
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A. Yes, I was.
Q. Can you tell us about that?
A. There were two different incidents where we set up controlled purchases
from the defendant in this matter. Both were using a young lady from
Hickory, North Carolina, [the Informant] who was the girlfriend of Billy
Greene. She had met with local law enforcement officials and explained
that she had been involved in the distribution of methamphetamine and
heroin in the Catawba County area and identified the defendant as one of
her sources of supply in this case.
(Emphasis added). Davis’s challenge to Jenkins’s testimony, if successful, would thus
hardly accomplish anything meaningful.
In any event, with respect to Davis’s challenge to Officer Jenkins’s testimony
about the Informant’s out-of-court statement, Davis must now, on appeal, not only
demonstrate to us that the district court abused its discretion in failing to exclude the
evidence sua sponte, and therefore plainly erred, but also that the error affected his
substantial rights and seriously affected the fairness of his trial. See United States v.
Moore, 810 F.3d 932, 939 (4th Cir. 2016). We conclude that he fails at the first step.
What is apparent from Officer Jenkins’s testimony, as well as Officer Barringer’s,
is that both were explaining why they solicited the Informant as an informant. Because
the Informant had told them that she had been purchasing methamphetamine from Davis,
the officers concluded that she, as an informant, would work credibly in participating in a
controlled buy from Davis. Thus, the testimony was offered not for the truth of whether
the Informant had in fact purchased methamphetamine from Davis on prior occasions,
but rather as an explanation — or a motive — for the officers’ using the Informant in
setting up the controlled buy. In these circumstances, the testimony was not even hearsay
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barred by Federal Rule of Evidence 802, as Davis claims. Federal Rule of Evidence
801(c) defines hearsay as “a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted in the statement.” See also United States v. Love, 767 F.2d
1052, 1063 (4th Cir. 1985) (holding that a statement made by a declarant out of court was
not hearsay because it “was offered not for its truth but only to explain why the officers
and agents made the preparations that they did in anticipation of the appellants’ arrest”).
Since the Informant’s out-of-court statement was not offered for its truth, we reject
Davis’s challenge to this evidence.
B
Davis contends next that the district court abused its discretion in admitting
photographs taken by Officer Jenkins of text messages on the Informant’s cellphone.
Jenkins testified that he was with the Informant on the day of the controlled buy and that
during her texting leading up to the transaction, he sat next to her and watched her send
and receive text messages. With her permission, he took photographs of her cellphone
screen, revealing the various texts exchanged between the Informant and contacts labeled
in the cellphone as “Joseph Davis” and “Joseph Other.” Davis objected to the admission
of the photographs, contending that it violated Federal Rule of Evidence 901, which
provides, “To satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the item is what
the proponent claims it is.” Davis argues that the government did not properly
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authenticate the photographs in that it did not provide any evidence to support a
conclusion that it was in fact he who was sending the text messages to the Informant,
such as by introducing evidence that his phone numbers matched the phone numbers for
“Joseph Davis” and “Joseph Other.” While the photographs themselves were
authenticated by Jenkins as accurate portrayals of the texts he was photographing, he
concededly could not link the texts to the defendant Davis by a phone number, even
though the photographs did accurately reveal that the texts were coming from contacts
labeled “Joseph Davis” and “Joseph Other.”
The government contends that the district court did not unreasonably conclude that
a reasonable jury could find that Jenkins understood enough about the subject matter of
the text messages and their context “to authenticate them” and that therefore the court
correctly concluded that the absence of phone numbers or other information directly
identifying the sender of the texts to the Informant’s cellphone simply went to the weight
of the evidence, not its admissibility.
We recognize that the district court’s role, as the presider over the trial, “is to
serve as gatekeeper in assessing whether the proponent has offered a satisfactory
foundation from which the jury could reasonably find that the evidence is authentic.”
United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009). But “the burden to
authenticate under Rule 901 is not high”; the “court must merely be able to conclude that
the jury could reasonably find that the evidence is authentic, not that the jury necessarily
would so find.” United States v. Recio,
884 F.3d 230, 236–37 (4th Cir. 2018) (internal
quotation marks and citation omitted). Thus, we require only a prima facie showing that
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the “true author” is who the proponent claims it to be. Id. at 237; see also United States
v. Zhu,
854 F.3d 247, 257 (4th Cir. 2017); United States v. Cornell,
780 F.3d 616, 629
(4th Cir. 2015); United States v. Hassan,
742 F.3d 104, 133 (4th Cir. 2014). And the
prima facie showing “may be accomplished largely by offering circumstantial evidence
that the documents in question are what they purport to be.”
Vidacak, 553 F.3d at 350.
We conclude that in this case, the record contains ample contextual evidence to
create a prima facie showing that the Informant was, in fact, texting with the defendant
Davis when her cellphone showed the texts to be from “Joseph Davis” or “Joseph Other.”
First, the clear purpose manifested by the substance of the texts was to arrange the place
of the controlled buy and to arrive at an agreed-upon price for the drugs. For example,
the Informant texted, “Where am I going to[]” and “I’m riding in circles where do I go,”
to which “Joseph Other” responded, “The mail box.” The Informant then drove to “the
mail box” — the mailbox cluster for Davis’s apartment complex — and waited for ten
minutes, after which Davis arrived and engaged in the controlled buy, as observed by
witnesses. This context alone was sufficient to support the conclusion that the Informant
was actually texting with Davis.
But also, in a similar vein, many of the texts exchanged during the hour before the
transaction took place addressed the price for the purchase of the two ounces of
methamphetamine that the Informant had agreed to buy. The street price, as Officer
Jenkins testified, was $900 per ounce, and “Joseph Other” and the Informant were
debating whether the transaction for two ounces should be for a price lower than the
$1,800 street price for two ounces — anywhere from $1,600 to $1,750. About 10 to 15
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minutes before the transaction took place, the Informant texted, “So what’s the price,” to
which “Joseph Other” texted, “1750.” A few minutes later, after the Informant
complained about the price as high, “Joseph Other” texted, “I know what I told u I’m not
gonna say 16 when I pay more than that.” A few minutes later, the Informant texted, “I
mean I thought the most you would do was 1700 like you said.” She then continued “I’m
at mailbox,” and “Joseph Other” texted back, “I didn’t say that,” to which the Informant
texted, “I’m at the mailbox.” “Joseph Other” continued, “It’s good shit don’t let the little
stuff fool u.” The transaction that then actually occurred a few minutes later involved
Davis’s sale of 54.15 grams (two ounces) of methamphetamine, and it was indeed “good
shit,” as “Joseph Other” texted — 96% pure, as determined by laboratory tests. Thus, the
texting with “Joseph Other” was again linked to the real-world conduct of the transaction
with the defendant Davis, about which there was direct witness testimony.
In addition, during the course of texting to set up the controlled buy, the Informant
and Davis engaged in a telephone conversation, which Officer Jenkins confirmed, as he
was able to identify Davis’s voice. While Davis testified at trial and denied that it was
his voice in the call, he acknowledged that the telephone call was made to “the same
number that [the Informant] was texting on . . . October 11.”
Moreover, while Davis also denied sending the Informant the texts shown on the
photographs, there was no explanation at trial that the contact label on those texts —
“Joseph Davis” and “Joseph Other” — could have referred to any person other than the
defendant Davis, with whom the Informant had regularly been texting. Davis seemed to
acknowledge as much at trial:
10
Q. Did you meet with [the Informant] on October 11, 2016?
A. I don’t know. We had been going back and forth about the money that
she was supposed to be paying me back, or whatever, her and her
boyfriend, or whatever, and so I don’t remember the dates or whatever.
She’s come up there a couple times though. Most of the time it was to
borrow money.
Q. So you’re saying the texts on October 11th were about money that she
owed you?
A. Some of them, yes, sir. Actually, the text was from — they was three
people, actually, in the text.
(Emphasis added).
Finally, as broader contextual evidence, Officer Jenkins testified not only that he
was with the Informant during the 12 hours before the controlled buy, as the Informant
was sending and receiving text messages to set up the transaction, but also that he had
knowledge of the entire investigation into Davis and the incidents referred to in the texts
involving Davis, supporting Jenkins’s conclusion that the texts on the Informant’s
cellphone were from Davis.
We conclude that the government amply made the prima facie showing required
by Rule 901 and that the district court did not abuse its discretion in admitting the
photographs that Jenkins took of the Informant’s cellphone screen. Any doubt remaining
about whether the “Joseph Davis” or “Joseph Other” was actually the defendant Davis
was appropriately left for the jury to resolve. See Zhu, 854 F.3d at 257.
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C
Finally, Davis contends that the district court abused its discretion in admitting the
recording of a telephone conversation between the Informant and purportedly Davis,
which Officer Jenkins testified was in fact a conversation between the Informant and
Davis based on his recognition of their voices. The telephone call addressed the
upcoming controlled buy and took place among the various texts exchanged that day
between the Informant and “Joseph Other,” setting up the controlled buy. Jenkins
testified that he was familiar with Davis’s voice from other “phone calls” and from “a
couple of hours of speaking back and forth while in his residence and during an interview
process” of Davis. Davis argues that this was insufficient to authenticate the recording.
We disagree.
Federal Rule of Evidence 901(b)(5) states that “[a]n opinion identifying a person’s
voice — whether heard first hand or through mechanical or electronic transmission or
recording — based on hearing the voice at any time under circumstances that connect it
with the alleged speaker” satisfies the requirement of authenticating evidence. Thus, we
conclude that Jenkins’s testimony that his in-person conversations with Davis enabled
him to recognize the voice on the telephone as Davis’s was sufficient authentication.
Again, any further doubt could be resolved by the jury.
III
In sentencing Davis, the district court calculated Davis’s advisory Guidelines
range by relying in part on its finding that Davis was responsible for 4.5 kilograms or
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more of methamphetamine. Based on that finding, the court calculated a total offense
level of 42, which, when combined with Davis’s criminal history category of V, resulted
in an advisory Guidelines sentencing range of 360 months’ to life imprisonment. The
court imposed a downward-variance sentence of 260 months’ imprisonment for the drug-
trafficking offense and 120 months for the felon-in-possession offense, to be served
concurrently.
Davis objected to the court’s drug-quantity finding on the ground that it was based
on the trial testimony of coconspirators Shaw and Carroll, and the jury had found Davis
not guilty on the conspiracy count that involved Shaw and Carroll. The court overruled
the objection, explaining:
Looking at the objections, the Court takes note that defendant has objected
to certain aspects of the facts that would come under the heading of Offense
Conduct. Those objections . . . appear to conflict with trial testimony,
which is what the probation officer has related under Offense Conduct.
[D]efendant’s contentions are otherwise noted for information purposes,
albeit the Court doesn’t believe they’re supported by the evidence at trial,
this Court having heard the evidence. So these objections are overruled.
And the court later explained that it found that Shaw and Carroll testified “convincingly”
as to drug amounts.
Davis now argues that his sentence was procedurally unreasonable because, in
overruling his objection, the district court did not specifically mention that the jury found
him not guilty of participating in the drug-trafficking conspiracy, and the court needed to
explain why it purportedly “disagreed” with the jury and found credible the testimony
that the jury allegedly did not.
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In response, the government notes that the district court was entitled to consider
acquitted conduct in establishing drug quantities and that once a court explained that it
had found the testimony of Davis’s alleged coconspirators “convincing,” the court was
“under no obligation to further explain why it found that testimony convincing and
supported its choice of sentence with an adequate explanation.”
Of course, it is well established that a sentencing judge “must adequately explain
the chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). Moreover,
the Supreme Court has explained that “[t]he appropriateness of brevity or length,
conciseness or detail, when to write, what to say, depends upon circumstances.
Sometimes a judicial opinion responds to every argument; sometimes it does not;
sometimes a judge simply writes the word ‘granted’ or ‘denied’ on the face of a motion
while relying upon context in the parties’ prior arguments to make the reasons clear.”
Rita v. United States,
551 U.S. 338, 356 (2007). At bottom, the obligation of the
sentencing judge is to “set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Id; see also Chavez-Meza v. United States,
138 S. Ct. 1959,
1963–66 (2018).
At Davis’s sentencing, the district court spoke at length — covering four pages of
transcript — explaining the sentence he was imposing on Davis, and this explanation
included responses to the arguments that Davis had made. In addition, the court spent an
additional two pages explaining its rulings on Davis’s objections to various sentencing
14
factors recommended in the presentence report. Davis argues now, however, that the
court needed to explain more about why it accepted the presentence report’s finding that
he was responsible for at least 4.5 kilograms of methamphetamine. We disagree, as we
conclude that the court’s explanations were sufficient.
The court explained its understanding of Davis’s argument and why it rejected it,
finding that Davis’s position was not supported by the evidence at trial. It said that it
heard the evidence presented at trial of drug quantities attributable to Davis and found it
convincing. This explanation thus addresses Davis’s argument that the court should not
have credited the testimony because the jury allegedly did not. Indeed, it provided this
court with sufficient reasons for the drug-quantity finding that the finding could be
reviewed.
Animating Davis’s position seems to be the view that a court may not consider
acquitted conduct in establishing drug amounts. That, however, is not the law. “It has
long been established that sentencing courts may consider acquitted conduct in
establishing drug amounts for the purpose of sentencing.” United States v. Perry,
560 F.3d 246, 258 (4th Cir. 2009). Of course, the court must find the drug amounts
established by a preponderance of the evidence. Thus, even if a court knows that a jury
had a reasonable doubt about drug quantities, that doubt would not preclude the court’s
finding of those quantities by a preponderance of the evidence, a lower standard.
More importantly, Davis’s argument presumes that in acquitting Davis on the
conspiracy count, the jury made a factual finding about drug quantities testified to by the
coconspirators. But that is too much to presume because the jury’s not-guilty verdict on
15
the conspiracy count could have been based on numerous reasons relating to doubt about
Davis’s involvement or the absence of proof of an element of the crime. A finding of the
drug quantity involved was therefore not necessary to a verdict of acquittal on the
conspiracy count.
As the district court acted within its lawful discretion by relying on testimony
relating to an acquitted count, its explanation that it found coconspirator testimony
convincing and Davis’s argument to the contrary to be unsupported was an adequate
explanation.
* * *
The judgment of the district court is accordingly
AFFIRMED.
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