United States v. Golden ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4179
WILLIAM D. GOLDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-93-48)
Submitted: June 17, 1997
Decided: August 11, 1997
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Brian A. Glasser, BOWLES, RICE, McDAVID, GRAFF & LOVE,
Charleston, West Virginia, for Appellant. William D. Wilmoth,
United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
William D. Golden appeals his conviction and sentence for con-
spiracy to distribute crack cocaine, in violation of 21 U.S.C. § 846(1994); distribution of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (1994); aiding and abetting, in violation of 18 U.S.C. § 2(1994); and interstate travel to facilitate a business enterprise involv-
ing crack cocaine, in violation of 18 U.S.C. § 1952(a)(3)(A) (1994).
We affirm.
At trial, the Government presented testimony from several wit-
nesses about Golden's drug dealing activities. Although Golden did
not deny selling drugs, he asserted that he suffered from mental ill-
ness that made him delusional. He claimed that he believed himself
to be acting as an informant for the Morgantown, West Virginia, drug
task force, and that the police capitalized on his delusional state. Gol-
den called Detective Joel Smith, who testified that he had, on one
occasion, used Golden as an informant. Smith also testified that Gol-
den approached him about drug dealing activities in Morgantown, and
Smith told Golden to report what he knew. However, Smith denied
that Golden was part of the task force. Smith further testified, on
cross-examination, that Golden tried to use his cooperation with the
task force to secure a more favorable outcome in pending state
charges, threatened to lie before the grand jury, and told his former
attorney that he and a local state judge were under investigation by
the task force. There was no other evidence to support Golden's asser-
tion that his drug dealing activities were occasioned by his participa-
tion on the task force.
Golden first asserts that he did not receive a fair trial because of
extensive misconduct by the prosecutor. Golden claims that the prose-
cutor presented false evidence during the cross-examination of Detec-
tive Smith by eliciting testimony to show that Golden started rumors
about his former attorney, which he claims the prosecutor started, and
cited United States v. Shuck, 705 F. Supp. 1177 (N.D.W. Va. 1989),
rev'd, United States v. Shuck, 895 F.2d 875 (4th Cir. 1990). In Shuck,
the district court vacated the defendant's perjury conviction because
of the actions of the Assistant United States Attorney before the grand
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jury, and noted that the investigation of local attorneys by the United
States Attorney's Office created the erroneous conclusion in the com-
munity that such attorneys were under criminal investigation. Shuck,
705 F. Supp. at 1191-92, 1196. This court reversed the district court's
ruling, noting that the allegedly improper conduct of the United States
Attorney's Office was unrelated to Shuck's conviction. Shuck, 895
F.2d at 967.
Because Golden did not object at trial this Court reviews for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993). The
prosecutor asked the questions at issue in an effort to establish Gol-
den's deceptive and manipulative manner. Although one witness testi-
fied that he did not believe that Golden began the rumors, another
said that Golden did start the rumors. Golden has not shown that the
prosecutor's statements were false. In any event, the prosecutor's
implication that Golden started rumors, however vicious, does not rise
to the level of a false assertion that Golden was convicted of prior
crimes, see Foster v. Barbour, 613 F.2d 59, 60 (4th Cir. 1980), nor
was it likely to mislead the jury. See United States v. Brockington,
849 F.2d 872, 875 (4th Cir. 1988). Thus, the prosecutor's statements
did not deprive Golden of a fair trial.
Golden next claims that the prosecutor made improper statements
during opening and closing arguments. Golden claims that the prose-
cutor improperly blamed the delay of trial on Golden, vouched for the
prosecution witnesses, and improperly argued to the jury that Golden
had an obligation to refute the Government's evidence. Because Gol-
den did not object to the statements at trial, this Court reviews for
plain error. Olano, 507 U.S. at 732. Reading the prosecutor's state-
ments in context, Golden fails to establish that the prosecutor's
remarks were factually untrue or otherwise improper, or that the state-
ments prejudiced him in such a way as to deprive him of a fair trial.
See Brockington, 849 F.2d at 875. Thus, the prosecutor's statements
did not constitute plain error.
Finally, Golden claims that the district court erred in determining
Golden's relevant conduct. Golden claims that the district court
improperly attributed to him for relevant conduct purposes crack
cocaine instead of a combination of crack cocaine and powder
cocaine. The district court's findings of fact at sentencing are
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reviewed for clear error. United States v. D'Anjou, 16 F.3d 604, 614
(4th Cir. 1994). A review of the record shows that the district court
considered the testimony at trial and at the sentencing hearing, and
weighed the credibility of each witness to find that Golden distributed
only crack cocaine. We find that the district court did not err in deter-
mining Golden's relevant conduct.
Accordingly, we affirm Golden's conviction and sentence. We
deny Golden's motion to file a supplemental reply brief. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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