                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-2004

USA v. Ricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2297




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"USA v. Ricks" (2004). 2004 Decisions. Paper 763.
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                                                            NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                     No. 02-2297


                             UNITED STATES OF AMERICA

                                          v.

                                  MICHAEL RICKS,

                                                                      Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Crim. No. 00-00024-2)
                    Honorable Ronald L. Buckwalter, District Judge


                                 Argued April 22, 2004

  BEFORE: SCIRICA, Chief Judge, and ROSENN and GREENBERG, Circuit Judges

                                (Filed: April 30, 2004)


Gavin P. Holihan (argued)
Huber and Waldron
535 Hamilton Mall, Ste. 301
Allentown, Pa. 18101

   Attorneys for Appellant

Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy U.S. Attorney
for Policy and Appeals
Bernadette McKeon
Assistant U.S. Attorney
David E. Troyer (argued)
Assistant U.S. Attorney
615 Chestnut Street
Philadelphia , Pa. 19106

   Attorneys for Appellee


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before this court on appeal from a judgment of conviction

and sentence entered on May 8, 2002, following appellant Michael Ricks’s plea of guilty

to three counts of a superseding indictment charging him as follows: Count One,

conspiracy to distribute and to possess with intent to distribute more than 50 grams of

crack cocaine base and more than 100 grams of heroin, cocaine, marijuana, and

phencyclidine within 1000 feet of a public housing project in violation of 21 U.S.C. §

846; Count Two, conspiracy to travel in interstate commerce to commit murder in

violation of 18 U.S.C. § 1958(a); Count Three, conspiracy to affect commerce by robbery

in violation of 18 U.S.C. § 1951(a). Ricks pled guilty, but reserved the right to challenge

his sentence, including the court’s determination of the amount of drugs attributable to

him. The amount was important as his offense level in part depended on the quantities of

drugs involved.



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       Following the entry of the plea the probation department prepared a presentence

investigation report which specified, inter alia, the quantity of drugs attributable to Ricks.

Thereafter the court conducted a trial-type hearing on November 8, 2001, to determine the

drug quantities attributable to Ricks as well as to certain other defendants including his

brother Marc Ricks. Several witnesses, including the FBI case agent on this prosecution,

Clifford F. Fiedler, testified at the hearing. Fiedler had prepared analyses of numerous

recordings of intercepted telephone calls which were available to the court at the hearing.

In his testimony Fiedler set forth conclusions with respect to drug quantities.

       Following the completion of Fiedler’s direct testimony Marc Rick’s attorney cross-

examined him. Subsequently, after a recess, the court indicated that other witnesses

should testify next but Fiedler could be recalled if necessary. At that time the only

attorneys who commented were Marc Ricks’s attorney, who said “yes sir,” and the

prosecutor, who said “Okay.” App. at 194. In fact, Fiedler never was recalled as a

witness and neither Ricks nor any of the other defendants requested Fiedler’s recall at the

hearing. At the end of the day on November 8, 2001, the court directed the parties to

make written submissions to it with respect to drug amounts.

       The government on December 14, 2001, filed its memorandum making its

contentions as to the drug amounts attributable to Ricks as well as the other defendants.

Ricks filed his response to the government’s memorandum on January 30, 2002, and the

other defendants also filed responses. Significantly, Ricks did not contend in his



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memorandum that Fiedler should have been recalled for additional cross-examination and

he did not request in the memorandum that Fiedler be recalled before the court made its

findings.1

         On February 15, 2002, the court filed its memorandum opinion making its findings

detailing the drug amounts attributable to Ricks and the other defendants. In particular,

the court attributed at least 2000 grams of crack cocaine, at least 3000 grams of powder

cocaine, and 30 grams of heroin to Ricks. In reaching its conclusions the court relied in

part on Ricks’s own testimony and also relied on Fiedler’s testimony and on that of other

defendants and explained that it had read transcripts of tapes of intercepted telephone

calls. It appears that Ricks at no time during the period from after the close of the

November 8, 2001 hearing and the court making its determination on February 15, 2002,

sought Feidler’s recall for further cross-examination. In fact, Ricks first raised the issue

he now advances on appeal with respect to the limitation of Fiedler’s cross-examination

in his pro se sentencing submission filed April 12, 2002.

         The court ultimately determined that Ricks’s total offense level was 41 which,

when combined with his criminal history category of I, yielded a sentencing range of 324

to 405 months. In reaching the total offense level the court made a 3-level increase under

U.S.S.G. § 3B1.1(b) for Ricks’s role as a supervisor and organizer of a group of five or

more people and a 2-level increase by reason of Ricks’s possession of firearms in



  1
      Insofar as we are aware none of the defendants requested that the court recall Fiedler.

                                               4
connection with a drug trafficking offense. The court sentenced Ricks to three concurrent

custodial terms of 324 months on the three counts to be followed by a ten-year term of

supervised release. In addition, it made a $300 special assessment.

      Ricks has filed a timely appeal raising the following issues:

                                            I.

             Whether [he] was deprived of his Fifth Amendment right to due
      process and his Sixth Amendment right to counsel when the district court
      precluded counsel from conducting a full cross-examination of the agent
      who determined the quantity and type of drugs the government alleged
      should be attributed to [him], thus preventing a meaningful opportunity to
      challenge whether the information was reliable or the drug attribution
      accurate.

                                            II.

             Whether the district court erred when it calculated the types and
      amounts of drugs attributable to [him] when the court’s conclusions were
      not supported by the evidence.

                                           III.

            Whether the district court erred when it applied a three level
      enhancement against [him] for his role in the criminal offense under §
      3B1.1(b) of the Sentencing Guidelines (Aggravating Role for a manager or
      supervisor and the criminal activity involved five or more participants)
      when the evidence did not support such a finding.

                                           IV.

              Whether the district court erred when it applied a two level
      enhancement against [him] for his role in the criminal offense under §
      2D1.1(b)(1) of the Sentencing Guidelines (Dangerous weapon possessed
      during commission of a drug trafficking offense or conspiracy) when the
      evidence did not show that [he] possessed a weapon during any drug
      trafficking, but rather possessed a weapon as part of a separate count in the

                                            5
       Indictment to which [he] entered a plea of guilty.


Appellant’s br. at 2-3.

       The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction

under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

       Ricks’s contention with respect to the curtailment of the right of cross-examination

raises constitutional issues under the Fifth and Sixth Amendments. While it is true that

Fiedler’s report and the transcript of the calls were available to the court, still Fiedler’s

testimony was important. Moreover, we recognize the significance of the right of cross-

examination. See, e.g., Crawford v. Washington, 124 S.Ct. 1354 (2004). Nevertheless,

we also are aware that a district court has discretion to control the order of proceedings

and cross-examination and thus the court’s reasonable discretionary action in interrupting

Fiedler’s testimony was unassailable. See United States v. Werme, 939 F.2d 108, 117 (3d

Cir. 1991).

       The real issue here relates to the circumstance that Fiedler never was recalled. In

the end the controlling consideration here is that Ricks at no time between when the court

excused Fiedler as a witness at the hearing on November 8, 2001, indicating that “if we

need to recall him, we’ll do it at a later time,” app. at 194, and the court filing its

memorandum on February 15, 2002, requested that Fiedler be recalled for additional

cross-examination. Indeed, at the close of the hearing on November 8, 2001, when, after

the last witness testified, the court asked if there was any other testimony, it received no

                                                6
response. It then reasonably said that “seeing none, the record will be closed as far as

testimony is concerned.” App. at 332. Moreover, when the court then asked if there was

“anything else we want to put on the record before we adjourn counsel?” none of the

attorneys requested that Fiedler be recalled. App. at 334.

       We believe that if Ricks wanted Fiedler recalled he should have said so at the end

of the hearing on November 8, 2001. Accordingly, we can review the court’s action,

perhaps more properly styled the court’s inaction, in not recalling Fiedler only on a plain

error basis. See United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 1777-78

(1993). We are convinced that the court did not err in not recalling him inasmuch as none

of the defendants requested that he be recalled prior to the court making its determination

on drug quantities attributable to the individual defendants and the court had, without

further cross-examination of Fiedler, sufficient information relating to the quantity of

drugs on which to predicate its decision. Overall, we do not see why we should view the

matter as any different than a situation in which a party does not cross-examine an

adverse witness at all or cross-examines him only briefly. In short, when the court made

its February 15, 2002 ruling it had no basis on which to believe that Ricks was not

satisfied with the scope of Fiedler’s cross examination and, as the court itself apparently

saw no need for further questioning, it had no reason to recall him. Ricks sought to have

Fiedler recalled only after the court’s February 15 decision disappointed him. By then,

however, it was too late for he knew when the court called for written submissions with



                                             7
respect to drug amounts that it would determine the quantities attributable to the

individual defendants on the basis of the record already made.

       We recognize that Ricks explains his failure to seek Fiedler’s recall on the theory

that he understood that the court’s use of Fiedler’s testimony would be limited and thus

Ricks had no need to recall him. Nevertheless, though it is true that the court indicated

that it would have to examine additional evidence before reaching its result, it did not say

that it would not rely on all of the evidence before it in drawing its conclusions. Thus, we

do not regard the proceedings as unfair.

       Exercising the appropriate standards of review we have considered Ricks’s other

contentions and find them to be without merit and thus confine ourselves to the

observation that even if (a point the government disputes) cocaine initially was counted in

its powder form and then again was counted after being converted to crack, we see no

reason to regard such computations as interdicted double counting as the substances

differed in composition after the conversion.

       For the foregoing reasons the judgment of conviction and sentence entered May 8,

2002, will be affirmed.




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