UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4146

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

versus

RONALD PIRTLE,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.

(CR-03-335-MJG)

Submitted: January 6, 2006 Decided: March 29, 2006

Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

David W. Lease, SMITH, LEASE & GOLDSTEIN, L.L.C., Rockville,

Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Paul M. Tiao, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Ronald Pirtle appeals his jury conviction and sentence for one

count of conspiracy to distribute and to possess with the intent to

distribute fifty grams or more of cocaine base (crack), 21 U.S.C.

§§ 841(b)(1)(A) and 846. The district court sentenced Pirtle to

life imprisonment. On appeal, Pirtle presses several claims.

After thoroughly reviewing the record, we affirm Pirtle’s

conviction and sentence.

Pirtle first claims that the district court erred when it

denied his motion to suppress evidence obtained pursuant to two

wiretap orders, one on May 7, 2003, the other on June 11, 2003.

With regard to the May 7 wiretap order, Pirtle contends that the

government failed to exhaust normal, less intrusive investigative

procedures prior to applying for the wiretap order. With regard to

the June 11 wiretap order, Pirtle contends that the wiretap order

was unnecessary because the objectives of the wiretap order had

been obtained.

Turning to the May 7 wiretap order, 18 U.S.C. § 2518(3)(c)

permits a district court to issue a wiretap order only after making

a specific finding that “normal investigative procedures have been

tried and have failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous.” Section 2518(1)(c)

requires a wiretap application to contain “a full and complete

statement as to whether or not other investigative procedures have
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been tried and failed or why they reasonably appear to be unlikely

to succeed if tried or to be too dangerous.”

In discharging its burden, the government cannot rely on

conclusory statements that normal techniques would be unproductive

or that gathering usable evidence has been difficult. United

States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994). However, the

government is not required to show that other methods have been

“wholly unsuccessful,” or that it has exhausted “all possible

alternatives to wiretapping.” Id. at 1298 (citation and internal

quotation marks omitted). Instead, the government need only

present specific factual information sufficient to establish that

it has encountered difficulties in penetrating the criminal

enterprise or in gathering evidence to the point where wiretapping

becomes reasonable given the statutory preference for less

intrusive techniques. Id.

In this case, the affidavit in support of the May 7 wiretap

order explained how numerous normal investigative procedures had

failed, particularly how the use of various informants were

unsuccessful in obtaining meaningful evidence. The affidavit also

set forth the difficulties that were encountered in investigating

Pirtle’s drug activities and the substantial risks involved. In

our view, the affidavit set forth sufficient facts to warrant the

issuance of the May 7 wiretap order.
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With regard to the June 11 wiretap order, the affidavit in

support of the wiretap order explained that normal investigative

procedures were still unsuccessful and that the investigation

continued to face difficulties and involved substantial risks.

Moreover, the record discloses that, as of the date of the

application, the government was aware of some, but not all, of

Pirtle’s sources of crack. Finally, the government had not yet

determined the identity of all the participants on the distribution

side of Pirtle’s organization. Under these circumstances, the

issuance of the June 11 wiretap order was eminently reasonable.

Pirtle next claims that the district court violated his Sixth

Amendment rights when it sentenced him to a mandatory term of life

imprisonment under 21 U.S.C. § 841(b)(1)(A) based on two prior

felony drug convictions that were not alleged in the indictment.

A person that commits a 21 U.S.C. § 841(a)(1) violation is subject

to a mandatory life sentence if they committed the instant

§ 841(a)(1) violation “after two or more prior convictions for a

felony drug offense have become final.” Id. § 841(b)(1)(A). The

term “felony drug offense” means “an offense that is punishable by

imprisonment for more than one year under any law of the United

States or of a State or foreign country that prohibits or restricts

conduct relating to narcotic drugs, marihuana, anabolic steroids,

or depressant or stimulant substances.” Id. § 802(44).
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A district court may enhance a sentence based on the “‘fact of

a prior conviction,’” United States v. Thompson, 421 F.3d 278, 282

(4th Cir. 2005), regardless of whether it was admitted to by the

defendant or found by a jury so long as the facts necessary to

support the enhancement “inhere in the fact of conviction” rather

than being “extraneous to it,” id. at 283. Facts necessary to

support a sentencing enhancement inhere in the fact of conviction

rather than being extraneous to it so long as they come from “the

charging document, the terms of a plea agreement, the plea

colloquy, the statutory definition, or any explicit finding of the

trial judge to which the defendant assented to determine a disputed

fact about a prior conviction.” United States v. Collins, 412 F.3d

515, 521 (4th Cir. 2005).

Our review of the record discloses that the respective

charging documents and certificates of disposition with respect to

Pirtle’s prior drug felony convictions provided the district court

an adequate basis to conclude that Pirtle had two prior convictions

for felony drug offenses. The first conviction (involving conduct

committed in May 1996 for which he was arrested that same month)

was for “CRIMINAL POSSESSION” of “cocaine” in the “5th DEGREE.”

(J.A. 756). The second conviction (involving conduct committed in

September 1996 for which he was arrested in October 1996) was for

the “CRIMINAL SALE” of “cocaine” in the “3rd DEGREE.” (J.A. 762).

Both of these offense are felonies under New York law. See N.Y.
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Penal Law § 220.39 (“Criminal sale of a controlled substance in the

third degree is a class B felony.”); N.Y. Penal Law § 220.06

(“Criminal possession of a controlled substance in the fifth degree

is a class D felony.”); cf. United States v. Brown, 937 F.2d 68,

69-70 (2d Cir. 1991) (holding that a state drug offense that was a

felony under New Jersey common law was a felony drug offense for

purposes of § 841(b)(1)(B)). Accordingly, Pirtle’s prior drug

felony convictions required the court to sentence Pirtle to life

imprisonment.

Pirtle also attacks Special Agent David Shields’ testimony at

trial regarding the meaning of statements made by Pirtle and

several coconspirators during two calls intercepted over the

wiretap on May 9 and June 13, 2003. We find that any error here is

harmless beyond a reasonable doubt. 

Agent Shields testified about the meaning of statements during

two calls and his testimony was consistent with the testimony of

one of Pirtle’s coconspirators who offered a similar interpretation

of the calls. Thus, Agent Shields’ testimony was largely

cumulative to evidence already before the jury. Moreover, these

calls only represented two of the seventeen calls played during the

trial. Finally, the evidence of guilt presented by the government

was nothing short of overwhelming. In short, the admission of

Agent Shields’ testimony played no role in the outcome of the

trial.
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Finally, Pirtle contends that the district court erred when it

declined to define the term “reasonable doubt” after he requested

such an instruction. We review the denial of a proposed jury

instruction for an abuse of discretion. See United States v.

Seidman, 156 F.3d 542, 551 (4th Cir. 1998).

We have consistently expressed disapproval of attempts by

courts to define reasonable doubt. See, e.g., United States v.

Najjar, 300 F.3d 466, 486 (4th Cir. 2002); United States v.

Oriakhi, 57 F.3d 1290, 1300 (4th Cir. 1995). Moreover, we have

held that a court should not attempt to define reasonable doubt

absent a specific jury request. Oriakhi, 57 F.3d at 1300. In this

case, there is no indication that the jury asked the district court

to define reasonable doubt. Therefore, the court did not abuse its

discretion when it declined to give Pirtle’s requested reasonable

doubt instruction.

For the reasons stated herein, we affirm Pirtle’s conviction

and sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED