United States v. Desmond Ollivierre, A/K/A James Franklin Bridges

378 F.3d 412, 2004 U.S. App. LEXIS 16681, 2004 WL 1802160
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 13, 2004
Docket03-4802
StatusPublished
Cited by27 cases

This text of 378 F.3d 412 (United States v. Desmond Ollivierre, A/K/A James Franklin Bridges) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Desmond Ollivierre, A/K/A James Franklin Bridges, 378 F.3d 412, 2004 U.S. App. LEXIS 16681, 2004 WL 1802160 (4th Cir. 2004).

Opinion

*415 OPINION

KING, Circuit Judge:

Desmond Ollivierre appeals Ms conviction and sentence in the District of South Carolina for possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). United States v. Ollivierre, No. 0:97-0726(CMC) (D.S.C. Sept. 29, 2003). Ollivierre maintains on appeal that the prosecutor made an improper and prejudicial closing argument that denied him a fair trial. As explained below, we affirm.

I.

On September 23, 1997, Bridgette Caldwell provided information to the Lancaster County, South Carolina, Sheriffs Office concerning a drug dealer known as “Snoop.” In response, the Sheriff, with Caldwell’s cooperation, arranged for undercover agent Donnie Washington to purchase nine ounces of cocaine base from Snoop for $6,500. That evening, Caldwell and Washington proceeded to an agreed-upon transaction site — the Panhandle Exxon in Lancaster. Snoop and defendant Ollivierre arrived at the Exxon soon thereafter in a GMC Yukon. They exited the Yukon and, along with Caldwell and Washington, entered the Exxon station. Olli-vierre soon left the Exxon and returned to the vehicle. Snoop thereafter also left the station, walked to the Yukon, leaned in toward Ollivierre, and appeared to converse. After retrieving something from the Yukon, Snoop entered Washington and Caldwell’s vehicle. When Snoop was in the passenger’s seat of Washington’s car, Washington advised that they would go to a nearby dirt road to complete the drug deal. Snoop then told Ollivierre to follow them in the Yukon, and Ollivierre complied.

As Snoop, Washington, and Caldwell drove to the dirt road, Snoop showed Washington the drugs. After advising Snoop that he needed to get money from the trunk of his car, Washington exited the vehicle and signaled for other law officers to arrest Snoop and Ollivierre. Ollivierre promptly fled the scene in the Yukon, and a dangerous high-speed chase ensued. The chase, lasting approximately thirty minutes and covering about twenty-five miles, ended on a dead-end road. Olli-vierre then jumped out of the Yukon and continued to flee on foot. He was finally tracked down by a police bloodhound unit and located hiding in a tree. When apprehended, Ollivierre was carrying over $1,700 in cash.

On October 15, 1997, after being charged in a federal complaint, Ollivierre was released by a magistrate judge on a $50,000 secured bond. On October 22, 1997, Ollivierre and Snoop were indicted for a single count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Olli-vierre thereafter absconded, and an arrest warrant was issued on December 24, 1997, charging him with bond jumping. On January 7, 2003, more than five years after jumping bond, Ollivierre was arrested in the Northern District of Georgia. His trial began on May 15, 2003, and it concluded the following day. Ollivierre did not testify in his own defense, and the jury returned a guilty verdict.

The dispute underlying this appeal stems from the prosecutor’s closing argument and the manner in which it was addressed by defense counsel and the trial court. In seeking a new trial in the district court, and again on appeal, Ollivierre complains of fourteen aspects of the argument. At trial, however, he objected to only three of them. The comments and *416 remarks that were subject to objection are the following:

• “I would submit to you, ladies and gentlemen, [Ollivierre] is trying to run today. With the help of his lawyer, he is still trying to hide from you.” (the “Running Remark”).
• “I think sometimes when I am listening to the defense in their case, I am sure this is not their intent but it comes across sometimes as maybe to get you off track, to confuse you.” (the “Off Track Comment”).
• “One of the things [Mr. Ollivierre’s counsel] made mention of was that there was no testimony about the distance between Ms. Caldwell and actually being able to see this leaning. Again, I remember her saying 12 feet, approximately 12 feet but again you recall. I remember her also saying there was nothing obstructing her view. Nothing. He doesn’t remember that. Of course, he has selective amnesia because he is representing his client.” (the “Amnesia Comment”).

Ollivierre objected to these comments and remarks in a timely manner and, except for the Amnesia Comment, his objections were sustained. In response to Olli-vierre’s objection to the Running Remark, a curative instruction was given to the jury. When the court sustained his objection to the Off Track Comment, that line of argument ceased and was not resurrected. Ollivierre’s objection to the Amnesia Comment was overruled.

Ollivierre also complains of a series of eleven other comments made in the prosecutor’s closing argument, as to which no timely objections were made. Indeed, Ol-livierre first raised an issue of impropriety with respect to these comments when he filed his motion for a new trial, seven days after the verdict was returned. These include the following seven comments, which allegedly impugned defense counsel:

• “Mr. Ollivierre wants to now through his lawyer distance himself from the bag [of drugs] as he tried to distance himself from the scene.” (the “Distance Comment”).
• “Again, the defendant is working with his lawyer in the trial of this cases [sic] and he certainly is innocent until proven guilty.”
• “There is an old saying that goes if the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither is on your side, just argue.” (the “Argue Comment”).
• “He quotes so many times in his argument. He quotes the law repeatedly but then he tries to weave in distorted facts to try to make his argument.” (the “Distorted Facts Comment”).
• ‘You may hear that the government met with the witnesses and got them to say what they wanted them to say. We planned and orchestrated their testimony and that kind of thing. You may not hear that argument but you may. We submit to you, ladies and gentlemen, if we wanted to do that, we could have done a better job. We could have simply asked Ms. Caldwell to say ‘absolutely no question, I saw Mr. Ollivierre with the package in his hands and gave it to [Snoop] and [Snoop] came and got in my car’; and for good measure, we could have said Detective Washington I want you to say the very same thing; that you saw Mr. Ollivierre give the package to [Snoop] and [Snoop] came and got in the car.” (the “Suborn Perjury Comment”).
• “One of the things that I have come to, really had to get used to is sitting and listening to defense attorneys *417 make arguments that are what I consider to be so incredible in light of the facts or the evidence presented in the case. This case is no exception.

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Cite This Page — Counsel Stack

Bluebook (online)
378 F.3d 412, 2004 U.S. App. LEXIS 16681, 2004 WL 1802160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desmond-ollivierre-aka-james-franklin-bridges-ca4-2004.