Where a man convicted of conspiracy to possess a controlled substance with intent to distribute challenged the sufficiency of the evidence, admissibility of evidence, jury instructions and sentencing decisions, but each of his challenges was denied, his convictions and sentence was affirmed.
Background
A federal jury convicted Kenneth Watkins of conspiracy to possess a controlled substance with intent to distribute it. Watkins raises five arguments on appeal: First, that the District Court erroneously denied his motion for a judgment of acquittal. Second, that the court erred in permitting inquiry about lyrics from his music. Third, that the court’s rejection of his proposed jury instructions was erroneous. Fourth, that the court erred in calculating the converted drug weight attributable to him. Fifth, that the court erroneously denied his motion for a downward departure.
Acquittal
A defendant who moved for acquittal at the close of the prosecution’s case, was denied, and then introduced his own evidence must move for acquittal again to preserve his challenge to the sufficiency of the evidence. It is well-established that renewing a motion for a judgment of acquittal after the close of all the evidence, but before the case is submitted to the jury, properly preserves the defendant’s appellate challenge.
But Watkins didn’t do this. He waited until after he was convicted to move — pursuant to Rule 29(c)(1) rather than Rule 29(a) — for acquittal. Despite this, the court concludes this later motion has the same preservative effect.
Watkins contends that there is insufficient evidence that he knew about the conspiracy to distribute eutylone because there is no direct evidence “that [he] knew about the contents of the closed packages transported by the two women from Atlanta to Charlotte.” But a jury can infer that a defendant knew about a conspiracy from circumstantial evidence. While Watkins argues that the jury’s inferences about his knowledge were “unreasonable,” this argument wrongly asks this court to reweigh the evidence that the jury properly considered.
Lyrics
Watkins objected to the cross examination using his lyrics as irrelevant. But on appeal, he argues that the evidence was inadmissible as hearsay or improper character evidence. “To preserve an argument on appeal, the defendant must object on the same basis below as he contends is error on appeal.” So Watkins forfeited his hearsay and character-evidence arguments by not raising them below.
“Forfeited arguments are reviewed for plain error.” The Rules of Evidence specifically provide that a party-opponent’s out-of-court statements are “not hearsay.” Therefore, the District Court did not plainly err in failing to exclude these statements under the hearsay rule.
Watkins argues that inquiring about his lyrics should have been prohibited under the character-evidence rules. The prosecution counters, and the District Court found, that even if the lyrics were character evidence, Watkins “opened the door” to it by presenting testimony of his good character. The court agrees.
Jury instructions
Watkins contends that the District Court erred in rejecting his proposed jury instructions with respect to the meaning of “reasonable doubt.” In United States v. Williams, 152 F.3d 294 (4th Cir. 1998), this court explained that “[t]he trial court is not required to define reasonable doubt as a matter of course so long as the jury is instructed that a defendant’s guilt must be proven beyond a reasonable doubt; the Constitution does not obligate a court to further define the standard.” Williams remains good law and forecloses Watkins’s argument.
Drug weight
Watkins says the District Court erred in estimating the drug quantity in the 8,909 seized pills based upon a sample of only 11 pills. But in doing so, the District Court properly relied upon the testing performed by the prosecution’s forensic chemistry expert, which concluded that the 8,909 seized pills contained 2.39 kilograms of eutylone. The expert explained that such sampling is an accepted testing method and allowed him to conclude that each of the 8,909 pills, which were visually consistent and found together in a single parcel, contained eutylone.
Second, Watkins argues that the District Court erred in including the roughly 2 kilograms of eutylone involved in Sanders’s Oct. 16-17 transaction in the drug- quantity calculation. But he cannot identify any error, let alone clear error. Third, the District Court did not err when in applying a 1-to-380-gram drug-conversion ratio to the 4.39 kilograms of eutylone attributed to him.
Sentencing
Finally, Watkins asked the District Court to depart downward. But the court did “not believe that the facts in this case warrant[ed] a departure under 27D for the reasons that [it] previously stated.” “If a District Court is cognizant of its authority to depart, but does not do so, such a refusal to depart downward from the guideline range is simply not appealable.”
Affirmed.
United States v. Watkins, case no. 23-4094, Aug. 2, 2024. 4th Cir. (Richardson), from WDNC at Charlotte (Conrad). Paul Stephen Kish for Appellant. Amy Elizabeth Ray for Appellee. 25 pp.