United States v. Parker ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5791
GERALD PARKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-94-73)
Argued: June 7, 1996
Decided: July 10, 1996
Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Earl Whitted, Jr., Goldsboro, North Carolina, for Appel-
lant. John Douglas McCullough, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: D. Lynn Whitted,
Goldsboro, North Carolina; Janice Pilliam-Daye, Durham, North Car-
olina, for Appellant. Janice McKenzie Cole, United States Attorney,
Michael D. Tanner, Third Year Law Student, Duke University,
Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gerald Parker appeals his convictions for conspiring to distribute
marijuana and cocaine, see 21 U.S.C.A. § 846 (West Supp. 1996), and
for maintaining a place for the purpose of distributing marijuana, see
21 U.S.C.A. § 856 (West Supp. 1996). Parker asserts that the district
court erred in denying his motions to suppress evidence, his motion
for a bill of particulars, and his motions for a judgment of acquittal.
We affirm.
I.
After learning that Parker had been involved in drug transactions
with Berry Cordell Bryant, a major drug trafficker, the Drug Enforce-
ment Agency (DEA), along with state authorities, began an investiga-
tion of Parker's activities. As a result, DEA agents learned that Parker
also had been involved in drug transactions with Donald Gaskins.
Gaskins, who was cooperating with the Government, consented to
telephone Parker while DEA agents monitored and recorded the call.
During this conversation, Parker acknowledged his prior participation
in drug transactions with Gaskins. Thereafter, Parker was questioned
by federal and state law enforcement officials at his place of employ-
ment regarding his participation in various drug-related transactions.
Although he initially denied his involvement, Parker later admitted
that he had cooperated with Bryant in arranging a meeting with Gas-
kins to discuss obtaining a new source of drug supplies for Bryant and
that he had permitted his home to be used for the sale of marijuana
on several occasions.
Based on the evidence obtained in this investigation, Parker was
indicted on one count of conspiring to distribute marijuana and
cocaine, see 21 U.S.C.A. § 846; one count of aiding and abetting the
distribution of marijuana, see 18 U.S.C.A.§ 2 (West 1969); 21
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U.S.C.A. § 841(a)(1) (West 1981); and two counts of maintaining a
place for the purpose of distributing marijuana, see 21 U.S.C.A.
§ 856. Parker filed a motion for a bill of particulars, which the magis-
trate judge denied on the basis that the Government had provided full
disclosure of its materials. See 28 U.S.C.A.§ 636(b)(1)(A) (West
1993). Parker also moved to suppress the recording of his telephone
conversation with Gaskins, arguing that it was made in violation of
the Fourth Amendment and that a court order permitting the recording
was not obtained as required by 18 U.S.C.A. § 2518 (West 1970 &
Supp. 1996). And, he moved to suppress any statements he made dur-
ing the visit of the law enforcement officials to his office on the
grounds that the agents failed to inform him of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966). The magistrate judge rec-
ommended that the motions be denied, concluding that the recording
was admissible because Gaskins voluntarily consented to the monitor-
ing and that Miranda warnings were not required during the visit of
the law enforcement officials to Parker's office because he was not
in custody. The district court accepted the recommendation. See 28
U.S.C.A. § 636(b)(1).
At trial, the Government introduced the recording of the conversa-
tion between Gaskins and Parker in which Parker admitted his
involvement in various drug transactions, as well as testimony regard-
ing the admissions Parker made when he was interviewed at his place
of employment. Additionally, Bryant testified that he met with Parker
and Gaskins at Parker's request to discuss prices and quantities of
both cocaine and marijuana that Bryant might obtain. Further, the jury
heard testimony that Parker was present during various drug transac-
tions and that he was compensated for his assistance in two sales of
marijuana that were conducted in Parker's home.
Following the close of the Government's case, the district court
granted Parker's motion for a judgment of acquittal as to the count of
aiding and abetting the distribution of marijuana. After Parker pres-
ented evidence, he again moved for a judgment of acquittal on the
remaining counts, but the motion was denied. The jury acquitted Par-
ker of one count of maintaining a place for the distribution of mari-
juana, but convicted him of the two remaining counts. Parker once
more moved for a judgment of acquittal, but the district court again
denied the motion.
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II.
We conclude that the various allegations of error raised by Parker
are without merit. The district court did not err in denying Parker's
motion to suppress the recording of his telephone conversation with
Gaskins because Gaskins had consented to the electronic interception
by the DEA agents. See 18 U.S.C.A. § 2511(2)(c) (West Supp. 1996);
United States v. Tangeman, 30 F.3d 950, 952 (8th Cir.), cert. denied,
115 S. Ct. 532 (1994). Nor was it error to deny the motion to suppress
statements Parker made during the questioning by law enforcement
agents because the objective circumstances of the interrogation sup-
port the conclusion that Parker was not in custody at the time he made
the statements. See Stansbury v. California, 114 S. Ct. 1526, 1528-29
(1994) (per curiam). It was not an abuse of discretion to deny Parker's
motion for a bill of particulars because the Government satisfied its
obligation to inform him of the charges against him by disclosing the
contents of its files to him. See United States v. Schembari, 484 F.2d
931, 934-35 (4th Cir. 1973). The district court properly denied Par-
ker's motions for a judgment of acquittal because the evidence,
viewed in the light most favorable to the Government, was sufficient
to support the jury's verdict. See Glasser v. United States, 315 U.S.
60, 80 (1942). There was no constructive amendment of the indict-
ment because Parker was not "convicted of an offense omitted from
the indictment." United States v. Fletcher , 74 F.3d 49, 53 (4th Cir.
1996). Finally, any variance between the allegations in the indictment
and the evidence produced at trial was not fatal because the indict-
ment adequately notified Parker of the charges against him and suffi-
ciently defined the offenses so as to permit the assertion of double
jeopardy against any subsequent prosecution for the same offenses.
See United States v. Barsanti, 943 F.2d 428, 438-39 (4th Cir. 1991),
cert. denied, 503 U.S. 936 (1992).
III.
We have reviewed Parker's remaining arguments and determine
that they are without merit. Consequently, we affirm his convictions
for the reasons set forth above.
AFFIRMED
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