By Joshua P. Bussen

Yesterday, February 10, 2015, in the criminal case of United States v. McGee, in an unpublished opinion, the Fourth Circuit affirmed the decision of the District Court for the Northern District of West Virginia convicting the defendant, Michael McGee, of conspiracy to possess cocaine with intent to distribute.

 Defendant Cries Foul on Multiple Issues

McGee was convicted by a jury of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). On appeal he claimed that: (1) the district court erred in admitting evidence pursuant to Federal Rule of Evidence 404(b); (2) there was insufficient evidence to convict him; (3) the district court violated McGee’s constitutional right to be present during discussion and formulation of a response to a jury question during deliberations; (4) the district court erred in designating McGee a career offender; and (5) the district court erred in applying a two-level enhancement to his sentence for obstruction of justice.

 Prior Bad Acts are Admissible to Complete the Story of McGee’s Conspiracy

McGee claimed that the district court violated Federal Rule of Evidence 404(b) by allowing presentation of evidence to the jury of five controlled buys in November 2012 by a government informant. He claimed the prosecution was using these previous bad acts to “pollute the waters” of his conspiracy charge, because the acts were too remote in time and geography to be relevant.

The Fourth Circuit first held that the prior bad act evidence was relevant because it tended to prove that McGee was in fact a part of an illegal conspiracy.  Fed. R. Evid. 401.  It then determined that the evidence was not barred by 404(b). Rule 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accord with the character.” The rationale for this rule is that the cards are already stacked against the defendant and juries are apt to punish defendants for their previous crimes. However, evidence of other bad acts may be introduced for another purpose, including if it concerns “acts intrinsic to the alleged crime.” Here, the Fourth Circuit held that the prior buys were necessary to complete the story and were necessary to prove the defendant was involved in a conspiracy, and thus did not run afoul Rule 404(b).  Finally, the court found that the probative value of this evidence was not “substantially outweighed by a danger of . . . unfair prejudice,” and was thus admissible.  Fed. R. Evid. 403.

There Was Sufficient Evidence to Convict McGee

McGee next claimed that the jury had insufficient evidence to convict him. Generally, “[t]he jury verdict must be sustained when there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” The Fourth Circuit dismissed this argument easily, finding that the record held ample evidence of the defendant’s, and his coconspirator’s, cocaine trade.

 McGee’s Absence During a Jury Question did not Constitute Reversible Error

The defendant next claimed that the district court violated his constitutional right to be present during discussion and formulation of a response to a jury question during deliberations. Federal Rule of Criminal Procedure 43 provides that a defendant has the right to be present at every stage of trial, including when the judge communicates with the jury. However, in this case, the Fourth Circuit found that although the defendant was absent during a portion of a discussion regarding a jury question, that he was not gone for long, that the court had the record read back to him and then continued with the bulk of the conversation in his presence, and that the defendant only raised the issue on appeal. Therefore there was no reversible error.

 McGee Was Properly Considered to be a “Career Offender,” Which Made the Two-Level Enhancement Irrelevant

Finally, McGee claimed that the district court committed reversible error in designating McGee as a career offender and also for applying a two-level sentencing enhancement for obstruction of justice. The Fourth Circuit found that the career offender designation warranted a higher punishment than the two-level enhancement, rendering the enhancement moot.

As to the career offender issue, the record showed that McGee had been arrested for aggravated robbery in 1989, and for drug trafficking in 2004 and 2009. The federal sentencing guidelines hold that “a defendant is a career offender if he was at least eighteen years old at the time of the instant offense, the instant offense is a drug felony or crime of violence, and the defendant has at least two prior felony convictions for drug offenses or crimes of violence.” McGee was older than eighteen at the time of this offense and each of his three prior convictions qualified for the higher sentencing guideline; therefore, the Fourth Circuit dismissed this claim as well.

Because the Fourth Circuit found no reversible error, the conviction of Michael McGee was affirmed.