United States v. Lanier, 4th Cir. (1996)
United States v. Lanier, 4th Cir. (1996)
No. 95-5215
repetition of potentially incriminating words is not the kind of compelled communication or disclosure of incriminating evidence prohibited by the Self-Incrimination Clause of the Fifth Amendment. See
United States v. Wade, 388 U.S. 218, 222-23 (1967) (compelling
defendant to speak, within hearing distance of witnesses, words purportedly uttered by criminal was for identification and did not compel
testimony); Burnett v. Collins, 982 F.2d 922, 927, n.5 (5th Cir. 1993)
(compelling utterance of robber's words before jury for identification
purposes did not elicit testimony); United States v. Domina, 784 F.2d
1361, 1371 (9th Cir. 1986) (compelling utterance of robber's words
before jury for identification purposes does not violate selfincrimination principles); see also Doe, 487 U.S. at 210 ("to be testimonial, accused's communication must itself, explicitly or implicitly,
relate factual assertion or disclose information").
Lanier next claims that taking of the exemplar without the presence
of his lawyer violated his Sixth Amendment right to have counsel
present at all "critical stages" of a criminal proceeding, as required by
United States v. Wade, supra. Wade held that the Sixth Amendment
entitles criminal defendants to the assistance of counsel at postindictment lineups. It also stands for the more general proposition that
a defendant is entitled to counsel in all "critical" confrontations prior
to trial where "potential substantial prejudice to [a] defendant's rights
inheres in the particular confrontation," and counsel could help "avoid
that prejudice." 388 U.S. at 227. The Supreme Court discussed this
"critical" stage right in the companion case to Wade, Gilbert v.
California, 388 U.S. 263 (1967). In Gilbert , the Court held that taking
a defendant's handwriting exemplar was not a critical stage requiring
the presence of an attorney because the potential prejudicial effect of
such samples could be remedied through the adversarial process at
trial, e.g., by defense production of competing exemplars. Id., 388
U.S. at 267.
Following the Supreme Court's reasoning in Gilbert, this Circuit
has held that the taking of a voice exemplar, like the taking of handwriting exemplars and unlike the post-indictment lineup in Wade, is
not a critical stage during which the Sixth Amendment requires the
presence of an attorney. Oriakhi, 57 F.3d at 1299.
Lanier contends that this Circuit's Oriakhi decision is not controlling because his exemplar was introduced as substantive evidence. He
4
reasons that the exemplar's use "relates back" to the taking of the
exemplar and makes it a critical stage requiring the presence of counsel. We reject this contention for at least two reasons. First, the defendant's voice exemplar was not introduced or admitted as substantive
evidence. Indeed, the district judge's repeated, comprehensive admonitions that the jury should consider the exemplar tape and transcript
solely for identification purposes makes it clear that they were not. By
contrast, the substantive content of the original tape was established
by its being played and compared with a written transcript of that
recording. The defense had ample opportunity to attack the original
recording's intelligibility and accuracy, a fact demonstrated by the
defendant's having taken the stand and interpreted (rather than
denied) the statements attributed to him. J.A. at 224-36, 246. Second,
the Sixth Amendment does not and should not relate back to require
the presence of counsel at the taking of Lanier's exemplar. Such an
approach would classify the taking of a voice exemplar as a conditional critical stage depending on the exemplar's subsequent use at
trial. That standard, in addition to being unworkable, stands at odds
with this court's previous holding that the taking of voice exemplars
is simply not a critical stage for Sixth Amendment purposes. Oriakhi,
57 F.3d at 1299. Lanier was not entitled to have an attorney present
at the taking of his voice exemplar.
Defendant next contends that reversible error was committed when
the government failed to disclose a transcript of the voice exemplar
prior to trial. Apparently, the defendant attempted to have this very
material suppressed in a motion in limine. J.A. at 55-56. "Decisions
regarding the admission or exclusion of evidence are committed to the
sound discretion of the district court and will not be reversed absent
an abuse of discretion." United States v. Lancaster, 96 F.3d 734, 744
(4th Cir. 1996) (en banc). We find no evidence of such an abuse of
discretion here, especially in light of the fact that the defense had
access to the transcripts from which the exemplar (and thus the exemplar transcript) was made. The availability of the original transcript
makes it plain that suppressing the exemplar transcript would not
have altered the outcome of this trial. See United States v. Bagley, 105
S. Ct. 3375, 3383 (1985); cf., United States v. Glover, 846 F.2d 339,
342 (6th Cir. 1988) (finding no reversible error in failure to present
handwriting exemplar where original writing had been provided and
defendant could produce his own exemplars).
5
II.
Defendant next contends that the district court incorrectly determined his criminal history category. The deference due the sentencing
judge's application of the sentencing guidelines to the facts at issue
varies with each case. It is clear, however, that where the issue
depends primarily on a factual determination, the court will apply the
clearly erroneous standard. If the issue turns primarily on a legal
interpretation, the review moves closer to de novo. United States v.
Castner, 50 F.3d 1267, 1274 (4th Cir. 1995); United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Defendant first maintains that his criminal history was incorrectly
elevated for a state conviction that was dismissed on appeal after sentencing. (The state case was pending appeal at the time of his sentencing hearing.) Defendant was found to have a criminal history of VI
based on the total number of points assigned for his prior convictions.
The sentencing guidelines provide that "[p]rior sentences under
appeal are counted [in calculating criminal history]." U.S.S.G.
4A1.2(l). Application Note 6 to that guideline provides that a sentence resulting from a conviction that has been reversed or vacated
because of an error of law, subsequently discovered evidence, or a
constitutional invalidity is not to be counted. U.S.S.C., Guidelines
Manual, 4A1.2, Application Note 6 (1995).
Defendant does not claim that the prior sentence was vacated or
reversed on appeal due to an error of law or constitutional invalidity.
He merely states that while the appeal was pending, the state prosecutor dismissed the charges. Nothing more is presented in the record.
Where a state conviction considered for federal sentencing is subsequently dismissed for reasons other than innocence or errors of law,
it is properly counted in the criminal history. See United States v.
Ramsey, 999 F.2d 348, 351 (8th Cir. 1993).
A conviction is considered final for criminal history purposes at the time of the trial court's determination of guilt.
Under U.S.S.G. 4A1.2(a)(1), a "prior sentence" is defined
as "any sentence previously imposed upon adjudication of
guilt, whether by guilty plea, trial, or plea of nolo con6
tendere." This language contains no requirement that a sentence be upheld on appeal prior to inclusion in the criminal
history calculation.
United States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992) (citing
United States v. Mackbee, 894 F.2d 1057 (9th Cir.), cert. denied, 495
U.S. 962 (1990)) (emphasis in original).
Next, defendant claims the trial court improperly found he could
reasonably foresee 600 pounds of marijuana involved in the conspiracy. However, defendant made no objection to this quantity at his
sentencing hearing.
A defendant's failure to object to a sentencing issue
amounts to a waiver of his right to raise that issue on appeal,
absent plain error. Under this standard, we must find that (1)
an error was committed, (2) the error was plain, and (3) the
error affected the defendant's substantial rights. Once these
threshold requirements are satisfied, we must also decide
whether the error "seriously affect[ed] the fairness, integrity,
or public reputation of judicial proceedings."
United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996) (citations omitted).
Evidence admitted during the course of the trial indicated the marijuana seized at the time of defendant's arrest amounted to 598 pounds
and 29 ounces. J.A. at 141. The presentence report also stated the
amount of marijuana to be approximately 600 pounds. J.A. at 282,
287. No objection was made at the time of sentencing in regard to the
amount of drugs with which he was being charged. J.A. at 244-50.
The defendant has an affirmative duty to make a showing
that the information in the presentence report is unreliable
and articulate the reasons why the facts contained therein
are untrue or incorrect . . . [W]ithout an affirmative showing
that the information is inaccurate the court is free to adopt
the findings of the [presentence report] without more specific inquiry or explanation. . . . The burden is on the defen7
without objection, if the defendant had not "dabbled" in the drug business; defendant answered no. Id. Finally, when the government asked
about a 1993 marijuana charge, defense counsel objected. Id., at 221.
The district court ruled that the prosecution could not ask about
criminal "charges" (and instructed the jury to that effect), but it did
permit questions that would show defendant led anything but a
"blameless life" because the defense had "opened the door" to this
line of questioning on direct. Id. The only questions asked and
answered along those lines were three. As just mentioned, the government asked if the defendant "dabbled" in the drug business and the
defendant replied that he had not. The prosecutor then asked whether
defendant had been "found" in possession of marijuana in 1993.
Defendant replied that while "marijuana was taken off some property
. . . I have not been convicted of anything." J.A. at 221. Later, the
prosecutor asked whether the defendant ever possessed marijuana for
resale, to which Lanier replied, "I possessed nothing; no possession
for resale." Id. at 227. Given that the defendant opened the door on
direct concerning his avoidance of trouble, allowing these questions
to be asked and answered for impeachment purposes constituted no
error, harmless, plain or otherwise, and was fully within the trial
judge's discretion.
CONCLUSION
For the reasons stated herein, the judgment of the district court is
hereby
AFFIRMED.
9