United States v. Demetrius Spence, 4th Cir. (2014)

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 13-4089

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
DEMETRIUS SPENCE, a/k/a Meat,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.
James C. Dever
III, Chief District Judge. (2:11-cr-00004-D-1)
Argued:
January 29, 2014
Decided:
April 16, 2014
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,

Chapel Hill, North Carolina, for Appellant.
Shailika K. Shah,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following
convicted of,
three-day
and
jury
sentenced
trial,
for,
one
Demetrius
count
of
Spence
was
knowingly
and
intentionally conspiring to distribute and possess with intent

to distribute cocaine base and three counts of knowingly and
intentionally
distributing
cocaine
base.
On
appeal,
Spence
challenges both his conviction and the procedural reasonableness

of his 324-month sentence.
Finding no basis for reversal, we
affirm.
I.
The
facts
March 2009,
underlying
when
officers
Spences
of
the
prosecution
Pasquotank
begin
County
in
Sheriffs
Office received information from a confidential informant that

Spence was distributing large quantities of drugs in Elizabeth
City, North Carolina.
Armed with information about Spences
criminal drug activity, officers used a confidential informant

to
conduct
Spence.
three
controlled
purchases
of
cocaine
base
from
The confidential informant, Deroca Johnson, wore an
audio-recording
controlled
device
purchases.
investigator
with
conducted
visual
monitored
the
the
and
transmitter
Agent
Jay
Pasquotank
surveillance
transactions
of
through
2
during
Winslow,
County
the
the
each
a
Sheriffs
controlled
audio
of
the
narcotics
Office,
buys
and
transmitter.
After the third controlled transaction, officers arrested Spence

and charged him with one count of knowingly and intentionally
conspiring to distribute and possess with intent to distribute
280 grams or more of cocaine base, in violation of 21 U.S.C.
841(a)(1),
intentionally
846,
and
three
distributing
counts
quantity
of
of
knowingly
cocaine
base,
and
in
violation of 21 U.S.C. 841(a)(1).

At trial, over defense counsels objection, the government
played four audio recordings that captured conversations during
which Spence made inculpatory statements.
Three of the recorded
conversations were of the controlled purchases between Spence

and Johnson.
The fourth audio recording was of a jailhouse
telephone conversation during which Spence chided his mother for

communicating with law enforcement officers.
For each of the
audio
the
recordings,
the
government
corresponding transcripts.
provided
jury
with
The district court instructed the
jury that the transcripts of the recordings were not evidence

but
merely
served
as
an
aid.
The
government
also
called
multiple cooperating witnesses who testified that Spence sold

thousands of dollars of cocaine or cocaine base over the course
of several years to numerous drug dealers.
On the strength of
the inculpatory audio recordings, coupled with testimony from

case agents and cooperating witnesses, the jury convicted Spence
on all counts charged in the indictment.
3
presentence
investigation
report
(PSR)
prepared
by
probation officer calculated Spences total offense level as 38,

which, combined with a criminal history category of III, yielded
an
advisory
Guidelines
incarceration.
range
of
292
to
365
months
Prior to his sentencing, Spence filed several
objections to the PSR, including objections to the drug weight

and to the inclusion of a 1998 North Carolina cocaine conviction
in his criminal history score.
objections
to
the
PSR
Spences counsel reasserted his
during
Spences
sentencing
hearing,
arguing that the PSR impermissibly attributed to Spence a higher

drug quantity than that found by the jury and that the 1998
North
Carolina
determining
cocaine
Spences
conviction
criminal
should
history.
not
be
included
The
district
in
court
overruled Spences objections and sentenced him to a total term

of imprisonment of 324 months followed by a five-year term of
supervised release.
Spence now appeals, challenging (1) the
admission of the audio recordings from the controlled purchases

and the jailhouse telephone conversation between Spence and his
mother; (2) the district courts drug quantity determination;
and (3) the inclusion of Spences 1998 cocaine conviction as
part of his criminal history.
We possess jurisdiction pursuant
to 28 U.S.C. 1291 and 18 U.S.C. 3742(a).
II.
We
first
address
Spences
contention
that
the
district
court erred in admitting into evidence the audio recordings of

the
three
controlled
purchases
and
the
jailhouse
telephone
conversation with his mother and in permitting the jury to use

corresponding transcripts of the audio recordings.
We review
for an abuse of discretion the district courts decisions to

admit audio recordings into evidence and to allow transcripts to
aid in the presentation of recorded evidence.
See United States
v. Capers, 61 F.3d 1100, 1106-07 (4th Cir. 1995); United States

v. Collazo, 732 F.2d 1200, 1203 (4th Cir. 1984).
Although Spence specifically objected to the foundation

laid by the government for admission of the recording of the
jailhouse telephone conversation with his mother, he failed to
state any specific ground for his objections to the admission of
the recordings of the three controlled purchases.
Generally,
when a party fails to object with that reasonable degree of
specificity which would have adequately apprised the trial court
of the true basis for his objection . . . and would have clearly
stated the specific ground now asserted on appeal, United
States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (citation
omitted) (internal quotation marks omitted), we review the
district courts evidentiary ruling for plain error, see Fed. R.
Crim. P. 52(b); United States v. Pratt, 239 F.3d 640, 644 (4th
Cir. 2001).
Nevertheless, we elect to apply an abuse-ofdiscretion standard with respect to each of Spences evidentiary
challenges because the result is the same under either standard
of review.
See United States v. Palacios, 677 F.3d 234, 245 &
n.6
(4th
Cir.
2012)
(assuming
that
defendant
preserved
evidentiary objections where arguments failed under an abuse-ofdiscretion standard).
The proponent of an audio recording carries the burden of

demonstrating that the recording was sufficiently authentic to
be admitted into evidence.
United States v. Wilson, 115 F.3d
1185, 1188-89 (4th Cir. 1997).

901(a),
the
requirement
for
Under Federal Rule of Evidence
authentication
is
satisfied
when
there is evidence sufficient to support a finding that the item

is what the proponent claims it is.
Illustrative examples of
such evidence include (1) testimony by a knowledgeable witness

that [the audio recording] is what it is claimed to be, Fed.
R. Evid. 901(b)(1); (2) [a]n opinion identifying a persons
voicewhether
heard
firsthand
or
through
mechanical
or
electronic transmission or recordingbased on hearing the voice

at any time under circumstances that connect it with the alleged
speaker, id. at (b)(5); or (3) testimony describing a process
or system and showing that it produces an accurate result, id.
at (b)(9).
We have consistently allowed district courts wide
latitude in determining if a proponent of tape recordings had

laid an adequate foundation from which the jury reasonably could
have
concluded
that
the
recordings
therefore, properly admitted.
were
authentic
and,
United States v. Branch, 970
F.2d 1368, 1372 (4th Cir. 1992).

Spence maintains that there was an inadequate foundation
for
admitting
the
challenged
audio
recordings
because
the
government failed to satisfy the seven-factor approach for the

6
admission of audio recordings as enunciated in United States v.

McMillan, 508 F.2d 101 (8th Cir. 1974).
This Circuit, however,
has expressly declined to adopt a formulaic standard for the

admissibility of recorded conversations; instead, all that is
required
under
our
precedent
is
some
proof
that
the
audio
recording accurately reflects the conversation in question.

United
States
v.
Clark,
986
F.2d
65,
68
(4th
Cir.
See
1993)
(observing that the government [i]s not required to meet each

of
the
McMillan
(holding
because
that
the
guidelines);
audio
Branch,
recordings
testimony
at
trial
970
F.2d
at
1371-72
were
adequately
authenticated
was
sufficient
to
support
finding by the jury that the tapes were what the Government
claimed).
Applying this standard leads us to conclude that the
government
adduced
an
adequate
challenged audio recordings.
foundation
for
each
of
the
Agent Winslow testified that he
equipped Johnson with an audio-recording and transmitter device

for
each
recorded
of
the
and
controlled
surveilled
purchases
the
drug
and
explained
transactions.
how
he
Moreover,
Johnsonwho was a participant to the controlled purchases and

familiar with Spences voicetestified that he knew he was being
recorded,
that
the
evidence
contained
compact
the
discs
same
sought
to
recordings
be
made
admitted
into
during
the
controlled purchases, and that he could identify the recordings

and
the
corresponding
transcripts
7
because
he
previously
had
placed his initials on them.
Although Agent Winslow testified
that small portions of Johnsons conversation with Spence during

the first controlled purchase were omitted from the recording
due
to
short
in
the
recording
devices
microphone,
Agent Winslows and Johnsons proffered testimonies nevertheless

satisfy Rule 901(a)s low threshold for authentication of the
conversation
that
was
captured
during
the
transaction.
See
United States v. Doyon, 194 F.3d 207, 212-13 (1st Cir. 1999)
(An accurate tape recording of part of a conversation is not
inherently less admissible than the testimony of a witness who
heard only part of a conversation and recounts the part that he
heard.).
In sum, we are unable to conclude that the foundation
the government laid for each of the three controlled-purchase

recordings was clearly insufficient to insure the accuracy of
the recording[s].
Clark, 986 F.2d at 69 (internal quotation
marks omitted).
As
for
conversation
the
audio
between
recording
Spence
and
of
the
his
jailhouse
mother,
telephone
Agent
Winslow
testified that he was familiar with the voices of Spence and

Spences
mother,
recording.
Regional
telephone
and
he
identified
their
voices
on
the
Further, Raymond Ridley, an employee of the Piedmont
Jail,
calls
testified
that
he
between
Spence
produced
and
his
recordings
mother,
that
of
the
he
had
listened to the recordings, that the compact discs contained the

8
full contents of the original discs, and that he had signified

that the recordings were accurate by placing his initials on the
discs.
Ridley also provided detailed testimony explaining the
process that he employed to extract the audio recordings from

the jailhouse phone system and that there were no errors with
the system when creating the discs.
The testimony of Agent
Winslow and Ridley was more than sufficient to establish that

the audio recordings were what the government claimed them to
beaccurately
recorded
conversations
between
Spence
and
his
mother.
Spence did not object to any specific inaccuracies in the
audio recordings or transcripts at trial, nor did he explore
inaccuracies
during
Capers,
F.3d
61
cross-examination.
1100,
1106-07
(4th
See
Cir.
United
States
v.
1995)
(rejecting
assignment of error regarding admission of audio recordings and

corresponding transcripts when the defendant had the opportunity
to explore inaccuracies during cross-examination but failed to
do so); Clark, 986 F.2d at 69 (same).
courts
limiting
instructions
to
the
Further, the district

jury
prevented
any
prejudice that may have resulted from any discrepancies between

the audio recordings and the transcripts.
See United States v.
Pratt, 351 F.3d 131, 140 (4th Cir. 2003).
Thus, we conclude
that
its
the
finding
district
that
each
court
of
acted
the
well
within
challenged
9
audio
discretion
recordings
in
were
sufficiently authenticated and that the district court did not

abuse
its
discretion
in
allowing
the
jury
to
consider
the
corresponding transcripts.
Next,
Spence
calculating
his
impermissibly
argues
drug
that
the
quantity,
attributed
to
him
district
maintaining
a
higher
court
that
drug
erred
the
easily dispense with this argument.
court
quantity
sentencing purposes than the amount found by the jury.
in
for
We can
This Court has squarely
held that beyond establishing the maximum sentence, the jurys

drug-quantity
district
determination
courts
sentencing.
Cir. 2010).
authority
place[s]
to
no
find
constraint
facts
on
the
relevant
to
United States v. Young, 609 F.3d 348, 357 (4th

Spence acknowledges that this claim is foreclosed
by circuit precedent and notes that he seeks to preserve the

issue for possible en banc or Supreme Court review.
Young,
we
discern
no
error
with
the
district
Bound by
courts
drug
quantity calculation.
Last, Spence maintains that the district court erred when
it assessed criminal history points for his 1998 North Carolina
conviction for possessing with intent to sell cocaine, which he
contends qualifies as relevant conduct.
Had the 1998 conviction
been considered relevant conduct, Spence claims, his criminal

history category would have been reduced from III to II, which
would have yielded an advisory Guidelines range of 262 to 327
10
months
imprisonment.
Even
assuming,
arguendo,
that
the
district court erred by including the 1998 cocaine conviction as

part of Spences criminal history, we conclude that the claimed
error is harmless.
141
(2009)
See Puckett v. United States, 556 U.S. 129,
(observing
that
procedural
errors
at
sentencing
. . . are routinely subject to harmlessness review).

A
procedural
sentencing
error
is
harmless
when
we
have
(1) knowledge that the district court would have reached the
same result even if it had decided the [G]uidelines issue the
other way, and (2) a determination that the sentence would be
reasonable even if the [G]uidelines issue had been decided in
the defendants favor.
United States v. SavillonMatute, 636
F.3d 119, 123 (4th Cir. 2011) (quoting United States v. Keene,
470 F.3d 1347, 1349 (11th Cir. 2006)) (internal quotation marks
omitted).
In this case, the district court plainly stated that
it would have imposed the same sentence even if it erroneously

calculated Spences Guidelines range.
the
harmlessness
analysis
is
Thus, the first prong of
satisfied.
As
for
the
second
prong, we have little difficulty in concluding that the imposed

sentence is reasonable.
Spences total 324-month sentence falls
within
applicable
the
purportedly
Guidelines
range
urged
by
Spence (262 to 327 months incarceration) and, therefore, is

presumed reasonable.
193 (4th Cir. 2007).
See United States v. Allen, 491 F.3d 178,

The district court conducted a thorough
11
analysis
of
the
18
referring
to
the
conspiracy
in
which
U.S.C.
prolonged
Spence
3553(a)
nature
was
sentencing
of
the
involved,
factors,
criminal
Spences
criminal history, and the need to deter others.
drug
extensive
A sentence at
the high end of Spences Guidelines range therefore would have

been justified in light of the seriousness of Spences criminal
history, his lack of respect for the law, and his significant
chance of recidivism.
month
sentence
is
Spence has failed to show that his 324unreasonable
given
the
record
and
the
3553(a) factors.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
12

United States v. Demetrius Spence, 4th Cir. (2014)

Uploaded by

Copyright:

Available Formats

United States v. Demetrius Spence, 4th Cir. (2014)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Demetrius Spence, 4th Cir. (2014)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

January 29, 2014

April 16, 2014

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,

Unpublished opinions are not binding precedent in this circuit.

intentionally conspiring to distribute and possess with intent

challenges both his conviction and the procedural reasonableness

Finding no basis for reversal, we

Office received information from a confidential informant that

Armed with information about Spences

criminal drug activity, officers used a confidential informant

The confidential informant, Deroca Johnson, wore an

After the third controlled transaction, officers arrested Spence

violation of 21 U.S.C. 841(a)(1).

Three of the recorded

conversations were of the controlled purchases between Spence

The fourth audio recording was of a jailhouse

telephone conversation during which Spence chided his mother for

For each of the

The district court instructed the

jury that the transcripts of the recordings were not evidence

multiple cooperating witnesses who testified that Spence sold

the inculpatory audio recordings, coupled with testimony from

probation officer calculated Spences total offense level as 38,

Prior to his sentencing, Spence filed several

objections to the PSR, including objections to the drug weight

Spences counsel reasserted his

arguing that the PSR impermissibly attributed to Spence a higher

overruled Spences objections and sentenced him to a total term

Spence now appeals, challenging (1) the

admission of the audio recordings from the controlled purchases

We possess jurisdiction pursuant

to 28 U.S.C. 1291 and 18 U.S.C. 3742(a).

court erred in admitting into evidence the audio recordings of

conversation with his mother and in permitting the jury to use

for an abuse of discretion the district courts decisions to

See United States

v. Capers, 61 F.3d 1100, 1106-07 (4th Cir. 1995); United States

Although Spence specifically objected to the foundation

The proponent of an audio recording carries the burden of

United States v. Wilson, 115 F.3d

1185, 1188-89 (4th Cir. 1997).

Under Federal Rule of Evidence

there is evidence sufficient to support a finding that the item

such evidence include (1) testimony by a knowledgeable witness

electronic transmission or recordingbased on hearing the voice

We have consistently allowed district courts wide

latitude in determining if a proponent of tape recordings had

therefore, properly admitted.

United States v. Branch, 970

F.2d 1368, 1372 (4th Cir. 1992).

government failed to satisfy the seven-factor approach for the

admission of audio recordings as enunciated in United States v.

This Circuit, however,

has expressly declined to adopt a formulaic standard for the