UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4282

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID EARL WATTS, a/k/a High Gear, a/k/a Driver,

Defendant - Appellant.

10-4283

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES BARNARD HAITHCOCK, a/k/a Boss Hog,

Defendant – Appellant.

Appeals from the United States District Court for the District 

of South Carolina, at Florence. Terry L. Wooten, District 

Judge. (4:08-cr-00372-TLW-1; 4:08-cr-00372-TLW-5)

Argued: September 21, 2011 Decided: November 9, 2011

Before GREGORY, WYNN, and DIAZ, Circuit Judges.
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Affirmed by unpublished opinion. Judge Gregory wrote the 

opinion, in which Judge Wynn and Judge Diaz joined.

ARGUED: Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, 

South Carolina; Gregory Poole Harris, HARRIS & GASSER, LLC, 

Columbia, South Carolina, for Appellants. Jimmie Ewing, OFFICE 

OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for 

Appellee. ON BRIEF: William N. Nettles, United States Attorney, 

Jeffrey Mikell Johnson, Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:

This case is on appeal from appellants’ convictions and 

sentence for one count of conspiring to possess with intent to 

distribute methamphetamine in violation of 21 U.S.C. § 841. 

Appellants present five claims of error to this Court: (1) the 

district court improperly denied appellants’ motion to suppress 

evidence seized in connection with a search of appellant Watts’s 

home after the Government lost the search warrant; (2) the 

district court erroneously denied appellants’ motion for a 

mistrial after the prosecutor improperly relied on statements 

not in evidence during her closing arguments; (3) the prosecutor 

unfairly attacked appellants’ trial attorneys during the 

rebuttal argument, depriving them of a fair trial; (4) there was 

insufficient evidence for the court to attribute 6.3 kilograms

of methamphetamine to Watts; and (5) there was insufficient 

evidence for the court to impose a two-level, “managerial role”

enhancement to Watts’s sentence. After careful review, we 

reject each of these arguments and affirm.

I.

Defendant-appellants David Earl Watts and James Barnard 

Haithcock were, along with several others, indicted, tried, and 

convicted of one count of conspiring to possess with intent to 

distribute methamphetamine, in violation of 21 U.S.C § 841. The 
4

Government alleged that from 1999 up to indictment, Watts and 

Haithcock participated in a conspiracy to produce and sell 

methamphetamine with thirty to fifty other people. The police 

obtained evidence from a number of sources, including two 

searches of Watts’s home.

Before trial Watts joined co-defendant Flint Ratliff’s 

motion to suppress evidence that was obtained pursuant to the 

2003 search of Watts’s home on grounds that it violated Watts’s 

Fourth Amendment rights. At the hearing, the Government 

informed the district court that the search warrant and 

accompanying affidavit had been lost. After hearing the 

testimony of Christopher Page, a narcotics officer with the 

Chesterfield County Sheriff’s Office, the court found that the

search warrant did exist, that there was sufficient evidence to 

support a finding of probable cause, and that the Fourth 

Amendment’s particularity requirement was satisfied.

At trial, the court heard from several witnesses, including 

Watt’s ex-wife, Karen Watts (“Karen”). The Government also 

introduced evidence obtained in a second search of Watts’s home 

conducted in 2005. Appellant Haithcock also took the stand. He 

testified, inter alia, that he was arrested in May 2008 in a 

methamphetamine investigation. After spending several days in 

jail, Haithcock and his attorney met with DEA agents and 

provided a proffer statement about his methamphetamine use. On 
5

cross examination, the prosecutor impeached Haithcock, making 

extensive use of the proffer statement. The Government referred 

to the proffer during its closing arguments, arguing that “just 

based on Mr. Haithcock’s statement . . . to the DEA that you 

could convict each of these defendants . . . .” Also during the 

prosecution’s closing, the Government made several references to 

defense counsel’s argument, calling it a “red herring” defense 

that is “improper” and mere “speculation.” The Government spoke 

about defense counsel, telling the jury, “They don’t want you to 

focus on the testimony. They don’t want you to focus on the 

evidence,” and later, “[L]ook at the way he cross examined every 

one of these witnesses . . . .” The Government also discussed 

the plea agreements it made with several witnesses; it told the 

jury that plea agreements “[are] designed, I submit to you, to 

force truthful cooperation.”

At the sentencing hearing, the district court attributed 

6.3 kilograms of methamphetamine to Watts. The court also 

imposed a two-level enhancement for Watts’s leadership role in 

the conspiracy. Watts was sentenced to 360 months in prison.

II.

We consider each of appellants’ five claims of error in 

turn.
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A. The Lost Search Warrant

Appellant Watts argues that the district court improperly 

denied his motion to suppress evidence after the Government 

admitted that it lost the search warrant. In hearing an appeal 

of a district court’s denial of a motion to suppress, an 

appellate court reviews findings of fact for clear error and 

determinations of probable cause de novo. Ornelas v. United 

States, 517 U.S. 690, 699 (1996); United States v. Richardson, 

607 F.3d 357, 369 (4th Cir. 2010).

The Fourth Amendment generally requires that before 

searching a home, the police must procure a warrant issued by a 

neutral magistrate; this warrant must be supported by probable 

cause and contain a particular description of the place to be 

searched and the items to be seized. U.S. CONST. amend. IV. 

Searches conducted without a valid warrant are presumptively 

unreasonable, Groh v. Ramirez, 540 U.S. 551, 559 (2004), and the 

exclusionary rule bars a prosecutor from introducing evidence 

obtained in violation of the Fourth Amendment during its casein-chief, Davis v. United States, 131 S. Ct. 2419, 2424 (2011). 

However, an officer acting with an objectively reasonable goodfaith belief that the search was in accord with the Fourth 

Amendment overcomes deficits in probable cause and 

particularity. See id. Moreover, the Government may also use 

unconstitutionally obtained evidence to impeach the defendant’s 
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testimony. United States v. Leon, 468 U.S. 897, 910 (1984). If 

an error is found with a district court’s ruling, this Court 

subjects that ruling to harmless error review, asking whether 

the defect “affect[ed] substantial rights.” FED. R. CRIM. P.

52(a). Evidence admitted in violation of the Constitution is 

harmless if the appellate court finds “the constitutional error 

was harmless beyond a reasonable doubt.” United States v. Abu 

Ali, 528 F.3d 210, 256 (4th Cir. 2008) (citing Chapman v. 

California, 385 U.S. 18, 24 (1967)).

In this case, Watts contends that the Government did not 

meet its burden of proof in demonstrating that the lost warrant 

both existed and complied with the Fourth Amendment. The 

Government responds by arguing that it did meet its burden and 

that in any case, the error was harmless. This Circuit has not 

had occasion to address the appropriate standard for searches 

involving a subsequently lost warrant. It is clear that the 

Fourth Amendment’s particularity requirement must be satisfied 

by the contents of the warrant itself, and not by its supporting 

documents. Groh, 540 U.S. at 557 (finding a constitutional 

violation when the affidavit, but not the warrant, was 

sufficiently particular). But Groh left open the question of 

whether any evidence besides the warrant itself can be used to 

prove a missing warrant’s existence or contents. The Eleventh 

Circuit considered this question in United States v. Pratt, 
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where it held that “when a warrant is not in evidence at a 

suppression hearing, a prosecutor must prove, by a preponderance 

of the evidence, the missing search warrant’s exact language 

describing the place to be searched and the persons or items to 

be seized.” United States v. Pratt, 438 F.3d 1264, 1270 (11th 

Cir. 2006).

Without ruling on the appropriate legal standard for cases 

involving lost search warrants, we find that even if the 

Government violated Watts’s Fourth Amendment rights and the 

district court erred in failing to suppress the evidence 

collected from the search, the error was harmless. Because only 

Watts has standing to challenge the search of his home, we do 

not consider the effect the alleged Fourth Amendment violation 

had on Haithcock’s conviction and sentence.

Over an eight-day trial where more than two dozen witnesses 

testified, only two made any mention of the first search of 

Watts’s home.*

 * The search at issue here took place on November 24, 2003; 

a second search occurred at the same location on July 14, 2005.

 One, Investigator Wayne Jordan, told the jury 

that officers found methamphetamine; the other, Christopher 

Page, said the police found “several guns,” a set of scales, and 

two bags containing what was later determined to be 

methamphetamine. None of these facts was necessary to establish 

Watts’s guilt. The fact that Watts possessed methamphetamine 
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was effectively admitted by the defense during closing arguments 

when counsel told the jury there was “no doubt” that Watts used 

methamphetamine. Moreover, the 2005 search of Watts’s home, 

which neither appellant challenges, produced substantially the 

same evidence against Watts and then some: upon arrival, the 

police found Karen and Watts (who was not present at the first 

search) sitting in front of a coffee table with two lines of 

white powder in front of them; the police also recovered 

methamphetamine, plastic baggies, digital scales, a security 

monitor, empty gel caps, empty ephedrine boxes, and a cutting 

agent. And while we register some concern with respect to the 

introduction of evidence that there were guns inside Watts’s 

home, we also note that Watts was not charged with any crime 

relating to the possession of a firearm.

Besides the evidence obtained by the 2005 search, the 

prosecution also put on nine witnesses who testified that they 

purchased or received methamphetamine from Watts. Karen and a 

woman named Jeannie Street both testified that they provided 

Watts with pseudoephedrine pills for the manufacture of 

methamphetamine. Ms. Street also said that she allowed Watts to 

bury tanks of anhydrous ammonia in her yard. Several witnesses 

also told the jury that they saw Watts making methamphetamine, 

and three said that Watts himself showed them how to manufacture 

the drug. In considering the substantial and mostly uncontested 
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evidence admitted into the record against Watts, we find beyond 

a reasonable doubt that any Fourth Amendment violation was 

harmless.

B. The Motion for a Mistrial

Appellants contend that it was improper for the Government 

to refer to Haithcock’s proffer statement to the DEA during its 

closing arguments because that statement was never admitted into 

evidence. The Fourth Circuit reviews a district court’s denial 

of a motion for a mistrial for abuse of discretion. United 

States v. Stockton, 349 F.3d 755, 762 (4th Cir. 2003). When the 

motion concerns the Government’s closing arguments, this Circuit 

requires the application of a two-pronged test: “(1) whether 

the prosecutor’s remarks or conduct was improper, and (2) 

whether such remarks or conduct prejudicially affected the 

defendant’s substantial rights so as to deprive [him] of a fair 

trial.” Id. (citing United States v. Francisco, 35 F.3d 116, 

120 (4th Cir. 1994)). An appellate court also reviews claims of 

improper closing arguments for harmless error. FED. R. CRIM. P.

52(a). To find the error harmless, this Court “need only be 

able to say with fair assurance, after pondering all that 

happened without stripping the erroneous action from the whole, 

that the judgment was not substantially swayed by the error.” 

United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995) 

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
11

A fundamental rule of law is that “argument is limited to 

the facts in evidence.” United States v. Wilson, 135 F.3d 291, 

298 (4th Cir. 1998). Past inconsistent statements cannot 

normally be used as substantive evidence, as Rule 802 bars 

hearsay from being admitted. FED. R. EVID. 802. The defendant’s 

previous statements, however, are not hearsay. FED. R. EVID.

801(d)(2)(A). Relevant, non-hearsay evidence is normally 

admissible. FED. R. EVID. 402. Here, Haithcock’s statement was 

relevant: it directly contradicted several statements he made 

during his direct examination. And of course, any party may 

impeach a witness’s testimony. FED. R. EVID. 607. Thus, the 

statement was straightforwardly admissible. See United States 

v. DiSantis, 565 F.3d 354, 359 (7th Cir. 2009) (finding no error 

where the district court instructed the jury that it may 

consider the defendant’s prior inconsistent statements as 

substantive evidence). The only question is whether it was 

admitted.

The record indicates that the prosecutor mentioned only one 

fact from the proffer that Haithcock did not testify to on 

direct or cross examination: that he had “his attorney, Mr. 

McBratney” with him when he made the statement. However, we 

cannot conclude, based on this one minor detail, that the 

prosecution’s closing arguments were improper under Francisco, 

much less that they prejudicially affected appellants’ 
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substantial rights. “[T]o parse through a prosecutor’s closing 

statement for minor infelicities loses sight of the function of 

our adversary system, which is to engage opposing views in a 

vigorous manner.” United States v. Johnson, 587 F.3d 625, 632-

33 (4th Cir. 2009). The district court’s denial of appellants’ 

motion for a mistrial, therefore, was proper.

C. The Government’s Closing Arguments

Appellants next claim that the prosecution’s comments 

during its closing arguments about defense counsel were improper 

and that the Government bolstered and vouched for its witnesses. 

A district court has broad discretion with respect to oral 

arguments. It will be overturned only for abuse of discretion 

under Stockton’s two-part test. See Stockton, 349 F.3d at 762. 

Appellants did not object to the prosecutor’s comments, a fact 

they concede here. Appellant’s Br. 38. When a defendant fails 

to object at trial, the appellate court reviews only for plain 

error. United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 

2010).

While courts grant counsel great latitude in presenting 

their closing arguments, the “guiding principle is that a 

prosecutor should not strike ‘foul blows.’” United States v. 

Ollivierre, 378 F.3d 412, 418 (4th Cir. 2004), rev’d on other 

grounds, 543 U.S. 1112 (2005). It is therefore “improper for a 

prosecutor to launch a personal attack upon the defense attorney 
13

or upon defense attorneys generally.” Id. Here, the comments 

made by the prosecutor about defense counsel, while pointed, 

were not personal attacks. It is true that the prosecutor 

referred to defense counsel’s theory as a “red herring defense,” 

and made comments like “They don’t want you to focus on the 

testimony you’ve heard in this case,” and at one point during a 

sharp back-and-forth, the Government even commented in reference 

to defense counsel’s actions, “It’s misleading, Your Honor, and 

I object.” But none of these are personal attacks against the 

defendant’s attorney; they reflect a spirited disagreement with 

the arguments made by the opposing party and do not concern the 

attorneys themselves. See Ollivierre, 378 F.3d at 418 (finding 

that the prosecution’s comments, including that defense counsel 

“tries to weave in distorted facts to try to make his argument,” 

were not improper). Moreover, the comments simply were not 

attacks under Ollivierre: litigation at times becomes heated, 

and the comments here do not rise to anything near the level of 

acrimony necessary to reverse a district court on abuse-ofdiscretion grounds.

Similarly, the Government did not impermissibly bolster or 

vouch for its witnesses. Impermissible “[v]ouching occurs when 

a prosecutor indicates a personal belief in the credibility or 

honesty of a witness; bolstering is an implication by the 

government that the testimony of a witness is corroborated by 
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evidence known to the government but not known to the jury.” 

United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). 

However, such improper comments do not always require retrial: 

the issue is whether “the prosecutors’ comments so infected the 

trial with unfairness as to make the resulting conviction a 

denial of due process.” Id. (citing United States v. Mitchell, 

1 F.3d 235, 240 (4th Cir. 1993)). With respect to vouching, 

this Court adopted the Tenth Circuit’s explanation of the types 

of comments that are appropriate with regard to plea agreements 

in closing arguments:

Presenting evidence on a witness’ obligation to 

testify truthfully pursuant to an agreement with the 

government and arguing that this gives the witness a 

strong motivation to tell the truth is not, by itself, 

improper vouching. . . . Use of the ‘truthfulness’ 

portions of [a plea agreement] becomes impermissible 

vouching only when the prosecutors explicitly or 

implicitly indicate that they can monitor and 

accurately verify the truthfulness of the witness’ 

testimony.

United States v. Collins, 401 F.3d 212, 216 (4th Cir. 2005) 

(citing United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 

1990)).

Here, the Government did not improperly vouch. The only 

statement made with respect to the plea agreements is the 

prosecution’s remark, “[I]t’s designed, I submit to you, to 

force truthful cooperation.” This did not suggest the 

prosecution was able to “monitor and accurately verify the 
15

truthfulness” of any testimony; it is instead a general comment 

implying that the witness has “a strong motivation” to tell the 

truth. See also United States v. Celestine, 43 Fed.Appx. 586, 

596 (4th Cir. 2002) (finding the prosecutor’s closing remarks 

were not improper in part because the phrase “I contend to you” 

indicates “routine argument, and not the expression of the 

prosecutor’s personal opinion”). As for the charge of 

bolstering, there is simply no indication the Government ever 

suggested it had evidence not known to the jury that 

corroborated any witness’s testimony. Appellant’s argument, 

therefore, is rejected.

D. The Quantity of Methamphetamine

Turning to his sentence, Watts argues that the district 

court erred in attributing 6.3 kilograms of methamphetamine to 

him. This Court reviews a district court’s drug quantity 

finding for clear error. United States v. Kellam, 568 F.3d 125, 

147 (4th Cir. 2009). That burden is satisfied when the review 

of all of the evidence leaves the court “‘with the definite and 

firm conviction that a mistake has been committed.’” Easley v. 

Cromartie, 532 U.S. 234 (2001) (quoting United States v. United 

States Gympsum Co., 333 U.S. 364, 395 (1948)).

When a defendant objects to a quantity of drugs, the 

district court must make an independent, factual determination 

of the issue. United States v. Williams, 152 F.3d 392, 300 (4th 
16

Cir. 1998). In reaching its decision, the district court must 

find that it is more probable than not that the defendant was 

responsible for at least the quantity of drugs attributable to 

him. United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 

2004). Precise calculations of the amount of drugs are not 

required; the district court may approximate the quantity to be 

used for sentencing. United States v. Uwaeme, 975 F.2d 1016, 

1018 (4th Cir. 1992) (quoting 18 U.S.C. § 3742(e) (2003)). A 

conspirator may be held accountable for all of the drugs 

attributable to the conspiracy as long as it was reasonably 

foreseeable that the drugs would be involved in the conspiracy. 

United States v. Osborne, 345 F.3d 281, 284-85 (4th Cir. 2003) 

(citing United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 

1993)).

In this case, appellants concede that, because of the 

conspiracy charge, Watts is liable for the uncontested 2.607 

kilograms of methamphetamine attributed to his co-conspirators. 

Appellant’s Br. 50. As for the remaining 3.693 kilograms, the 

district court relied heavily on the testimony of Karen. In 

evaluating testimony, “due regard to the opportunity of the 

district court to judge the credibility of the witnesses” shall 

be given. Uwaeme, 975 F.2d at 1018. Here, the district court 

did not err in crediting Karen’s testimony, notwithstanding 

appellants’ arguments that the Wattses had a tumultuous 
17

relationship and that Karen did not have significant contact 

with Watts during part of the conspiracy. The district court 

gave several reasons for finding that Karen’s testimony was 

truthful: it noted that her statements were mostly consistent; 

that she “substantially incriminat[ed]” herself; that the court 

observed her demeanor and found her to be credible; that she had 

a basis to know the facts to which she testified; and that her 

testimony was credited by the jury. Moreover, the presentence 

report attributed 15.3 kilograms of methamphetamine to Watts. 

Rather than taking a heavy-handed approach, the district court 

“err[ed] on the side of caution,” used “every lowest common 

denominator that [it could] use,” and reduced that amount 

substantially. The drug weight attributed to Watts, therefore, 

was not erroneous.

E. The Managerial Role Sentencing Enhancement

Finally, appellant Watts argues that there was insufficient 

evidence for the court to impose a two-level managerial 

enhancement at sentencing because Watts, rather than having a 

leading or supervisory role in the conspiracy, was merely one 

member of a “loose-knit” organization that bought and sold 

methamphetamine. The Fourth Circuit reviews a district court’s 

decision to apply a sentencing adjustment for clear error. 

United States v. Sayles, 296 F.3d 219 (4th Cir. 2002).
18

A district court may impose a two-level enhancement against 

a defendant that it finds acted as “an organizer, leader, 

manager, or supervisor” of the conspiracy. U.S.S.G. § 3B1.1(c). 

In reaching its decision, district courts look to seven factors:

(1) the exercise of decision making authority, (2) the 

nature of participation in the commission of the 

offense, (3) the recruitment of accomplices, (4) the 

claimed right to a larger share of the fruits of the 

crime, (5) the degree of participation in planning or 

organizing the offense, (6) the nature and scope of 

the illegal activity, and (7) the degree of control 

and authority exercised over others.

United States v. Cameron, 573 F.3d 179, 1984 (4th Cir. 2009) 

(citing U.S.S.G. § 3B1.1, cmt. n.4). Here, the factors point in 

favor of a finding that Watts acted in a managerial role. To 

begin with, Watts had significant decision-making authority, 

acting as a supervisor on a number of occasions: He, for 

example, ordered Karen to purchase pseudoephedrine pills and to 

“bubble” liquid methamphetamine and would intermittently forbid 

Karen from entering the house where he and the other coconspirators were cooking methamphetamine. Watts also taught 

several of his co-conspirators how to make the drug, including 

David Flake, Shaun Runyan, and Robert Rowell. Finally, on one 

occasion, a woman named Michelle Goodwin visited Watts to 

purchase methamphetamine; Watts directed a woman to pull up 

Goodwin’s shirt to see whether she had a recording device. In 

looking at the record as a whole, it is clear from the testimony 
19

that Watts acted as an organizer and leader in the conspiracy. 

The district court did not commit clear error in applying the 

two-level managerial enhancement.

III.

For the foregoing reasons, we affirm the judgment of the 

district court.

AFFIRMED