United States v. Jordan

509 F.3d 191, 2007 U.S. App. LEXIS 27985
Court of Appeals for the Fourth Circuit·Decided December 4, 2007·No. 19-1457·Published·Cited by 60 cases

Opinions

Affirmed in part; reversed in part by published opinion. Chief Judge WILLIAMS wrote the majority opinion, in which Judge GREGORY concurred. Judge WILSON wrote a separate opinion concurring in part and dissenting in part.

OPINION

WILLIAMS, Chief Judge:

A jury convicted Arthur Gordon and Peter Jordan of murder while engaged in a drug trafficking offense, in violation of 21 U.S.C.A. § 848(e)(1)(A) (West 1999) and 18 U.S.C.A. § 2 (West 2000); conspiracy to use and carry firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C.A. § 924(o) (West 2000 & Supp.2006); and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.A. §§ 924(c) and 2 (West 2000 & Supp.2006). The jury also [194]*194convicted Jordan of conspiracy to distribute and to possess with intent to distribute crack cocaine and heroin, in violation of 21 U.S.C.A. § 846 (West 1999). On appeal, Gordon argues that his convictions are barred by the unambiguous terms of a November 26, 2002 plea agreement he entered into with the Government. Gordon and Jordan together raise Sixth Amendment and evidentiary challenges to certain testimony admitted at their joint trial, including a challenge to the sufficiency of the evidence.

We affirm in part and reverse in part. Because we conclude that Gordon’s prior plea agreement forecloses his convictions in the Eastern District of Virginia for the crimes charged in the September 7, 2004 indictment, we reverse his convictions. On the other hand, we reject Jordan’s Sixth Amendment and evidentiary challenges and thus affirm his convictions.

I.

This case arose from the “brutal murder” of Dwayne Tabón. United States v. Jordan, 357 F.Supp.2d 889, 891 (E.D.Va.2005). On September 14, 2001, during a drug transaction in an apartment in Richmond, Virginia, Gordon and Jordan forcibly abducted Tabón, took him to another location, and set him on fire. Id. at 891. Suffering from burns over ninety percent of his body, Tabon died ten days later. Id. at 891.

On September 7, 2004, a grand jury sitting in the Eastern District of Virginia returned an indictment against Gordon and Jordan, charging both men with murder while engaged in a conspiracy to distribute and to possess with intent to distribute 50 or more grams of crack cocaine (Count One); conspiracy to use and carry a firearm during and in relation to the same crack cocaine conspiracy (Count Two); and possession of a firearm in furtherance of the crack cocaine conspiracy (Count Three). The indictment also charged Jordan with conspiracy to distribute crack cocaine and heroin from 1999 until June 17, 2004. Counts One, Two, and Three alleged that the offenses occurred on or about September 14, 2001.

On September 17, 2004, Gordon filed a motion to dismiss the indictment, arguing that the terms of his November 26, 2002 plea agreement with the Government did not permit his prosecution for the charged crimes. The district court denied Gordon’s motion to dismiss the indictment, concluding that the plea agreement was unambiguous and proved no bar to the Government’s prosecution of Gordon. United States v. Gordon, 343 F.Supp.2d 514, 518 (E.D.Va.2004).

Gordon’s and Jordan’s trial began on October 27, 2005. At trial, the Government sought to introduce statements made by a deceased alleged co-conspirator, Octavia Brown, to her friend Paul Adams. Gordon and Jordan objected to the admission of the statements, arguing that, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the statements were “testimonial” and thus barred by the Sixth Amendment’s Confrontation Clause. United States v. Jordan, 399 F.Supp.2d 706, 708 (E.D.Va.2005)(“Jordan II”). They also argued that the statements were inadmissible hearsay. Id. The district court rejected these arguments and admitted the statements, concluding that the statements were non-testimonial and admissible under Federal Rule of Evidence 804(b)(3) as statements against interest. Id. at 708-710.

At the close of the Government’s casein-chief, Gordon and Jordan moved for a judgment of acquittal. The district court denied both motions. Gordon and Jordan [195]*195renewed their motions at the close of all the evidence, and the district court again denied both motions.

Ultimately, the jury convicted Gordon and Jordan on all counts, and each was sentenced to life imprisonment. Gordon renewed his motion for judgment of acquittal or, alternatively, for a new trial, but the district court again denied the motion. Both defendants timely appealed. We have jurisdiction over this appeal pursuant to 28 U.S.C.A. § 1291 (West 2006).

II.

We begin with Gordon’s argument that his prosecution for the crimes charged in the 2004 indictment violated the terms of his earlier plea agreement. Gordon had previously been indicted by a grand jury sitting in the Eastern District of Virginia on September 18, 2002, on one count of conspiracy to distribute and to possess with intent to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C.A. § 846, and several counts of distribution of controlled substances. The charged conspiracy began “as early as 2001” and continued “through at least as late as August, 2002.” (J.A. at 73.)1 Gordon entered into a plea agreement with the Government on November 26, 2002.

Under the terms of the plea agreement, Gordon agreed to plead guilty to one count of distribution of a controlled substance, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.2007). In exchange, the Government agreed to dismiss the other counts in the indictment, including the count charging Gordon with the crack cocaine conspiracy. Specifically, Paragraph 5 of the plea agreement stated in pertinent part:

The United States will not further criminally prosecute [Gordon] in the Eastern District of Virginia for the specific conduct described in the indictment or statement of facts. Therefore, [Gordon] does not have immunity for crimes related to, but not specifically set out in the indictment or statement of facts.

(J.A. at 77 (emphasis added).)

We review the district court’s interpretation of a plea agreement de novo. United States v. Wood, 378 F.3d 342, 348 (4th Cir.2004). In interpreting plea agreements, we draw upon contract law as a guide to ensure that each party receives the benefit of the bargain. United States v. Ringling, 988 F.2d 504, 506 (4th Cir.1993). Applying standard contract law, we enforce a plea agreement’s “plain language in its ordinary sense,” United States v. Holbrook, 368 F.3d 415, 420 (4th Cir.2004)(internal quotation marks omitted), vacated on other grounds, 545 U.S. 1125, 125 S.Ct. 2934, 162 L.Ed.2d 863 (2005), and “do not write the contracts of the parties retroactively, but merely construe the terms of the contract the parties have previously signed,” id. (quoting United States v. Race, 632 F.2d 1114, 1119 (4th Cir.1980)).

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United States v. Jordan, 509 F.3d 191, 2007 U.S. App. LEXIS 27985 (4th Cir. 2007).

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