United States v. Brown ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4166
DOVON BROWN, a/k/a Capone,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-95-144-H)
Submitted: September 30, 1997
Decided: November 5, 1997
Before HALL, ERVIN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard L. Cannon, III, Greenville, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Thomas B. Murphy,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dovon Brown appeals from his conviction and sentence for con-
spiring to distribute and to possess with the intent to distribute
cocaine base in violation of 21 U.S.C. § 846 (1994). He was sen-
tenced to life imprisonment and five years of supervised release if
released from imprisonment. For the following reasons, we affirm.
I
The evidence at Brown's trial showed that during the course of
investigating Brown, a detective arrested Kenneth Wilson, who
became a cooperating Government witness. In July 1995, at the direc-
tion of the detective, Wilson made two recorded telephone calls to
Brown, which were submitted into evidence. During the second
phone call, Wilson first spoke to an unknown female, later identified
as Lottie Renee Watts. During the conversation, Brown and Wilson
referred to an individual named Roland, who was later identified as
Roland Pearson, another cooperating Government witness. Although
Brown and Wilson discussed various sums of money for the purchase
of certain items, neither specifically mentioned drugs. Wilson testified
that after the conversation he expected Brown to deliver three ounces
of cocaine to him for $1200 an ounce.
Wilson further testified that he bought cocaine from Brown for his
own drug distribution business. Wilson stated that between April and
July 1995, he had between one and two dozen drug transactions with
Brown and bought between twelve and thirteen ounces of cocaine
base for $1000 to $1300 an ounce.
Watts testified that she sold cocaine for Brown during the summer
of 1995 and there were other people selling cocaine for Brown at that
time. She sold between thirty and thirty-five ounces of cocaine base
for Brown. She further testified that at times Brown would front her
the cocaine for sale and after the sale she would give Brown the pro-
ceeds. Watts stated that she was supplied with cocaine either directly
from Brown or through Frederick Sutton. Watts also observed Brown
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display a gun during an altercation involving drugs. On a second
occasion, she heard a gun shot and ran out of the house, where she
found Brown with a gun. Sutton testified that he also distributed
cocaine for Brown.
Roland Pearson testified that Brown began fronting him cocaine in
April 1995. He sold the drugs and gave Brown the proceeds. Brown
fronted Pearson three or four one-half ounce quantities of cocaine
base a week for eight to ten weeks. Pearson further testified that on
one occasion when Brown was questioning certain individuals about
unaccounted-for cocaine, he saw Brown brandish a firearm when
those present failed to explain the disappearance of the cocaine.
Marvin Johnson testified that in 1995 Brown asked him to help him
start a cocaine base business in Plymouth, North Carolina. In April
1995, Brown fronted three ounces of cocaine to Johnson and Johnson
gave Brown $3000 after he sold the drugs.
II
On appeal, Brown claims that: (1) the evidence was insufficient to
support his conspiracy conviction; (2) the submission of the taped
conversations unfairly prejudiced him; (3) the quantity of drugs attri-
buted to him in determining his base offense level was erroneous; (4)
the evidence was insufficient to sustain a two-level enhancement for
use of a firearm in connection with a drug offense; and (5) the evi-
dence was insufficient to sustain a four-level enhancement for his role
in the offense.
Brown first claims that the evidence was insufficient to support his
conspiracy conviction because it consisted of unrelated isolated trans-
actions with various individuals without any common scheme or
organization. Brown alleges that the Government presented a string
of witnesses who testified to their individual dealings with Brown at
various times prior to and after the commencement of the alleged con-
spiracy but that there was no description of any organization led by
Brown. In essence, Brown contends that the Government failed to
demonstrate the level of agreement necessary to prove a conspiracy
between Brown and any of the named individuals.
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On direct appeal of a criminal conviction, a "verdict must be sus-
tained if there is substantial evidence, taking the view most favorable
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). A conspiracy generally is proved by circumstantial evi-
dence and the context in which the circumstantial evidence is adduced
and may be proved wholly by circumstantial evidence. United States
v. Burgos, 94 F.3d 849, 857-58 (4th Cir. 1996), cert. denied, 65
U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868).
A conspiracy to possess cocaine with intent to distribute is estab-
lished when: "(1) an agreement to possess cocaine with intent to dis-
tribute existed between two or more persons; (2) the defendant knew
of the conspiracy; and (3) the defendant knowingly and voluntarily
became a part of this conspiracy." Id. The conspirator's agreement
and his participation in the conspiracy may both be proved by circum-
stantial evidence. Id. Circumstantial evidence tending to prove a con-
spiracy may consist of a defendant's "relationship with other
members of the conspiracy, the length of this association, [the defen-
dant's] attitude [and] conduct, and the nature of the conspiracy."
United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984). Fur-
ther, a variety of conduct, apart from selling drugs, can constitute par-
ticipation in a conspiracy sufficient to support a conviction. Burgos,
94 F.3d at 859.
The focus of appellate review of the sufficiency of evidence to sup-
port a conspiracy conviction is on the complete picture, viewed in
context and in the light most favorable to the Government, that all of
the evidence portrayed. Id. at 863.
The testimony from Wilson, Watts, Sutton, Pearson, and Johnson
was sufficient to support Brown's conviction. Although the evidence
included uncorroborated testimony and contradictory testimony, it is
well established that the jury, not the appellate court, weighs the cred-
ibility of the evidence and resolves any conflicts in the evidence pres-
ented, and if the evidence supports different, reasonable
interpretations, the jury decides which interpretation to believe. Id. at
862. Likewise, determinations of credibility are within the sole prov-
ince of the jury and are not susceptible to judicial review. Id. at 863.
Brown contends that the evidence merely shows a string of buyer-
seller relationships which is insufficient to support a conspiracy con-
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viction. However, the evidence of repeated buy-sell transactions
involving substantial quantities of drugs supports a reasonable infer-
ence that the parties were co-conspirators. See United States v. Mills,
995 F.2d 480, 485 n.1 (4th Cir. 1993). Further, keeping in mind that
a conspiracy can be loosely-knit, haphazard, or ill-conceived, we
find that, viewing the evidence of the continuing relationships and
repeated transactions in the light most favorable to the Government,
any rational trier of fact could find Brown guilty of conspiracy to dis-
tribute and possess with intent to distribute beyond a reasonable
doubt. See Glasser, 315 U.S. at 80; Burgos, 94 F.3d at 858.
Brown next claims that he was unfairly prejudiced by the admis-
sion into evidence of taped conversations between Brown and Wilson.
Brown contends that because Wilson was acting as a Government
agent during the taped conversations, he could not have been a cocon-
spirator. See United States v. Chase, 372 F.2d 453, 459 (4th Cir.
1967). He further notes that for tape recorded statements of a co-
conspirator to be admitted into evidence and not excluded as inadmis-
sible hearsay, a district court must find that: (1) there was a conspir-
acy involving the declarant and the party against whom admission of
the evidence is sought; and (2) the statements at issue were made dur-
ing the course of and in furtherance of that conspiracy. See United
States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992); see also Fed.
R. Evid. 801(d)(2)(E).
The record reveals that the district court admitted the tape-recorded
conversation as an admission pursuant to Fed. R. Evid. 801(d)(1). The
voices of Watts and Wilson were on the tape. They both testified at
trial and were subject to cross examination. Further, their statements
on the tape were consistent with their testimony and rebutted any
charge that they were testifying under an improper influence or
motive. See id. The evidence showed that prior to Wilson's arrest, he
was a drug-dealing colleague of Brown. During the taped conversa-
tion, Brown agreed to sell and Wilson agreed to buy three ounces of
cocaine. Accordingly, we find that the district court did not abuse its
discretion in admitting the taped conversations. See Benedi v. McNeil-
P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir. 1995) (discussing standard
of review for evidentiary rulings).
Next, Brown contends that the district court improperly found that
Brown was responsible for in excess of 1.5 kilograms or 1500 grams
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of cocaine base. Brown argues that the amount found by the district
court is erroneous.
The Government bears the burden of proving the quantity of drugs
for which a defendant is to be held responsible at sentencing by a pre-
ponderance of the evidence. See United States v. Gilliam, 987 F.2d
1009, 1013 (4th Cir. 1993). The district court's factual determination
concerning the amount of drugs attributable to appellant should be
upheld absent clear error. See United States v. Lamarr, 75 F.3d 964,
972 (4th Cir. 1996), cert. denied, 65 U.S.L.W. 3309 (U.S. Oct. 21,
1996) (No. 95-9398); United States v. D'Anjou , 16 F.3d 604, 614 (4th
Cir. 1994). Furthermore, as a member of the conspiracy, Brown is
accountable for all of the drugs reasonably foreseeable to him. See
United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993); Gilliam, 987 F.2d
at 1012-13. Because the amount of drugs seized did not reflect the
scale of the offense, the district court was allowed to estimate the
amount attributable to Brown. See United States v. Kennedy, 32 F.3d
876, 887 (4th Cir. 1994).
In the present case, there was ample evidence to support the trial
judge's decision. Several coconspirators testified to the amount of
drugs with which Brown was involved. Wilson testified that he pur-
chased twelve to thirteen ounces of cocaine base from Brown. The
conservative estimate of twelve ounces equates to 340 grams of
cocaine base. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(10),
(Measurement Conversion Table) (Nov. 1995) (one ounce equals
28.35 grams). Watts testified that she sold between thirty and thirty-
five ounces of cocaine base for Brown. The conservative estimate of
thirty ounces equates to 850 grams of cocaine base. Brown did not
object to the ninety-five grams of cocaine base attributed to him from
his association with Sutton. Pearson testified that he received two
quarter-ounce quantities of cocaine base from Brown, which equates
to approximately fourteen grams. Pearson further testified that he
received three to four half-ounce packages of cocaine base a week for
about eight to ten weeks. Using a conservative estimate of three half-
ounce quantities a week for eight weeks equates to twelve ounces or
340 grams of cocaine base. Lastly, Johnson testified that he purchased
three ounces or eighty-five grams of cocaine powder from Brown.
Johnson further testified that he saw Brown purchase nine ounces or
255 grams of cocaine powder. Thus, with regard to Johnson, the court
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attributed 340 grams of cocaine powder to Brown, which was reduced
to 299 grams of cocaine base using an eighty-eight percent conversion
ratio. See United States v. Ricco, 52 F.3d 58, 63 (4th Cir. 1995), cert.
denied, 64 U.S.L.W. 3247 (U.S. Oct. 2, 1995) (No. 95-5502). The
amounts add up to be substantially more than 1500 grams of cocaine
base. It is irrelevant that the district court's calculation of the total
amount of cocaine base was higher because under the guidelines any
amount over 1.5 kilograms of cocaine base results in a base offense
level of 38. See U.S.S.G. § 2D1.1(c) (Drug Quantity Table). Thus, we
find that the district court did not clearly err when it determined that
the Government had proven, by a preponderance of the evidence, that
more than 1500 grams of cocaine base were attributable to Brown.
See Lamarr, 75 F.3d at 972.
Brown next alleges that the evidence was insufficient to sustain a
two level enhancement for use of a dangerous weapon during a drug
offense. The sentencing guidelines provide that,"[i]f a dangerous
weapon (including a firearm) was possessed, increase[the offense
level] by 2 levels." See U.S.S.G.§ 2D1.1(b)(1). A defendant "pos-
sesses" a firearm if the weapon was merely "present, unless it is
clearly improbable that the weapon was connected with the offense."
United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994). There is
no requirement that a defendant actively employ a firearm in order to
qualify for the enhancement. See United States v. Hawthorne, 94 F.3d
118, 122 (4th Cir. 1996). Because the determination that a firearm
was present so as to justify an enhancement is a factual question, this
Court reviews the determination for clear error. See United States v.
Rusher, 966 F.2d 868, 880 (4th Cir. 1992). Both Watts and Pearson
testified that they observed Brown with a gun during an altercation
involving drugs. The district court specifically found that this testi-
mony was credible. Therefore, we find that the district court did not
clearly err when it determined that the Government had proven, by a
preponderance of the evidence, that Brown possessed a firearm during
a drug offense.
Lastly, Brown contends that the evidence was insufficient to sus-
tain a four-level enhancement for his role in the offense. The sentenc-
ing guidelines provide for a four-level enhancement where a
defendant was a leader or organizer of criminal activity that involved
five or more participants or was otherwise extensive. See U.S.S.G.
7
§ 3B1.1(a). To qualify for this enhancement, the defendant must have
been a leader or organizer of at least one of the participants to the
criminal activity. See U.S.S.G. § 3B1.1, comment. (n.2). The Govern-
ment was required to prove Brown's role in the offense by a prepon-
derance of the evidence. See McMillan v. Pennsylvania, 477 U.S. 79,
91 (1986). Furthermore, the sentencing court's determination that
Brown is an organizer or leader is subject to the clearly erroneous
standard of review. See United States v. Smith , 914 F.2d 565, 569 (4th
Cir. 1990).
The district court found in this case that Brown was the organizer
or leader of five or more individuals and that there was extensive
activity. Watts testified that "around six" people other than herself
sold cocaine for Brown. Watts further testified that she saw Brown
with pagers, cellular phones, large amounts of cash, and multi-ounce
quantities of cocaine. Sutton and Pearson also testified that they sold
drugs for Brown. Johnson testified that Brown asked him to set up
drug sales in another area. Therefore, we find that the district court
did not clearly err when it determined that the Government had
proved, by a preponderance of the evidence, that Brown was an orga-
nizer or leader of criminal activity that involved five or more partici-
pants, subjecting him to the four-level enhancement.
Accordingly, we affirm Brown's conviction and sentence. We deny
Brown's motions to file supplemental pro se briefs because his coun-
sel's formal brief sufficiently states his claims. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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