United States v. Hall ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4365
MARC PIERRE HALL, a/k/a Marc
Valeriano, a/k/a Fella,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert E. Payne, District Judge, sitting by designation.
(CR-95-5)
Submitted: September 9, 1997
Decided: November 17, 1997
Before HALL and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James Gronquist, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Gretchen C.F. Shappert, Assistant
United States Attorney, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Marc Pierre Hall appeals from a criminal judgment entered against
him after a jury trial. The jury found Hall guilty of conspiracy to pos-
sess with intent to distribute cocaine and cocaine base within 1000
feet of a school or playground, in violation of 21 U.S.C.A. § 846(West Supp. 1997) (count one), use and carry of a firearm during and
in relation to a drug trafficking crime in violation of 18 U.S.C.A.
§ 924(c)(1) & (2) (West Supp. 1997) (counts ten and eleven), and use
and carry of a destructive device and damage and destruction of real
property in and affecting commerce in violation of 18 U.S.C.A.
§ 844(i) (West Supp. 1997) (count twelve). The district court imposed
a life sentence on count one with a four hundred and eighty month
sentence on count twelve to run concurrently with count one, a sixty
month sentence on count ten to run consecutively to counts one and
twelve, and a life sentence on count eleven to run consecutively to
counts one, ten, and twelve. Hall timely noted an appeal. On appeal,
Hall argues that there was not sufficient evidence to convict him of
the charges and that imposition of the second life sentence for count
eleven was error. Finding no error, we affirm.
The Government's evidence tended to show that Hall was part of
a conspiracy that distributed cocaine and cocaine base in the Char-
lotte, North Carolina, area. The organization is referred to as the Mob-
ley organization and was headed by Paul Mobley and his nephew
Darwin Mobley. Hall primarily worked for Darwin Mobley (Mobley).
At trial, Mobley testified that he fronted Hall approximately one kilo-
gram of crack cocaine each week. Hall had several people who would
make sales and delivery of the crack for him. The Government
showed that several members of the conspiracy lived and dealt the
drugs within 1000 feet of a school or playground.
Mobley testified that Hall participated in a "home invasion" or rob-
bery of one of Mobley's suppliers, William Matthews. The invasion
2
was intended to retaliate for Matthews allegedly"shorting" Mobley of
drugs. Mobley testified that he provided firearms, including an SKS
assault rifle, for the Matthews home invasion.
Mobley also testified regarding another retaliatory incident. This
incident stemmed from an episode that occurred when a quantity of
Paul Mobley's drugs disappeared. Allegedly, Paul Mobley's girl-
friend gave eighteen ounces of Paul's crack cocaine to Wesley Hunter
without compensation. Paul wanted someone to harm Hunter in retali-
ation. Darwin Mobley suggested that Hall could take care of it for
Paul. The Government's evidence tended to show that Hall arranged
for his girlfriend, Tracy Rosner, and two juveniles, Maurice Mobley
and Freddie Roseboro, to accompany him to Hunter's residence. The
Government presented evidence that Rosner and the juveniles were
responsible for lobbing a firebomb into Hunter's residence.
Jesse Mobley, Darwin's brother and another member of the con-
spiracy, testified about Hall's involvement in the conspiracy. Jesse
testified about two drug deals that he made with Hall and corrobo-
rated Darwin's testimony regarding Hall's sharing of an apartment
with Darwin, the Matthews robbery, and the Hunter residence fire-
bombing. Paul Mobley also testified about the drug organization. He
stated that he, Jesse, and Darwin had been involved in the drug busi-
ness together. He also testified that he formerly had a girlfriend
named Leslie Hunter, sister of Wesley Hunter, and that he had stored
a half kilogram of cocaine at her residence that disappeared. Paul tes-
tified that Darwin offered Hall to him as a hit man and he had several
conversations with Hall about assaulting Hunter. Hunter also testified
that he was involved in distributing cocaine and that Paul Mobley was
one of his customers. He testified that at the time of the firebombing
he was storing a kilogram of cocaine and had a telephone at his resi-
dence that he used in furtherance of his drug business. Finally, Tracy
Rosner was a reluctant Government witness and testified that Hall
drove Maurice Mobley and Freddie Roseboro to Hunter's house with
the gasoline-filled coke bottles on the night of the firebombing.
Hall challenges the sufficiency of the evidence supporting his con-
spiracy conviction, arguing that "the Government paraded before the
jury a number of drug dealers who had nothing to lose and everything
to gain." On direct review of this issue, we honor the rule that a jury
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verdict "must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it." See United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (quoting Glasser
v. United States, 315 U.S. 60, 80 (1942)), cert. denied, 65 U.S.L.W.
3586 (U.S. Feb. 24, 1997) (No. 96-6868). After reviewing the evi-
dence presented by the Government and Hall at trial, we conclude that
the jury had sufficient evidence to support the conspiracy conviction.
Hall next argues that there was not a sufficient nexus between
interstate commerce and the Hunter private residence, the subject of
the firebombing, as required by 18 U.S.C.A. § 844(i). Section 844(i)
requires that the subject of the damage or destruction be "any build-
ing, vehicle, or other real or personal property used in interstate or
foreign commerce or in any activity affecting interstate or foreign
commerce." 18 U.S.C.A. § 844(i). The Government argues that it
established the required nexus because Hunter testified that he stored
a large quantity of cocaine at the house and used the telephone to con-
duct business in the drug trade.
We have held that section 844(i) applies to private residences. See
United States v. Ramey, 24 F.3d 602, 607 (4th Cir. 1994), cert.
denied, 514 U.S. 1103 (1995) (holding that a trailer's consumption of
electricity from an interstate power grid is a sufficient activity affect-
ing commerce); see also United States v. Stillwell, 900 F.2d 1104,
1111 (7th Cir. 1990) (holding that receipt of natural gas that has trav-
eled through interstate commerce is enough to establish the nexus).
The Seventh Circuit has also found that the use of a computer and a
telephone to make interstate phone calls for business purposes is
enough to establish the nexus. See United States v. Moran, 845 F.2d
135, 138 (7th Cir. 1988). An illegal business, such as Hunter's drug
trade, does not disqualify it from consideration as an activity affecting
interstate commerce. See United States v. Barton , 647 F.2d 224, 232
(2d Cir. 1981) (illegal gambling club run in private home was an
activity affecting interstate commerce). We find that Hunter's use of
his residence to store cocaine and use of the telephone from his home
to conduct drug deals is sufficient to establish the required nexus
under 18 U.S.C. § 844(i), and Hall's conviction was proper on this
count.
Next, Hall argues that the evidence at trial was insufficient to sus-
tain his conviction for operation of the conspiracy within 1000 feet of
4
a school or playground in violation of 21 U.S.C.§ 860 (1994). The
indictment charged that the conspiracy violated 21 U.S.C. § 860because of drug distribution by the conspiracy "within 1,000 feet of
a school and 1,000 feet of a playground." The Government could
prove this count by showing distribution within 1000 feet of a school
or a playground. Although the statute under which count one was
charged is written in the disjunctive, see 21 U.S.C. § 860, it is well-
settled that a charging document may be written in the conjunctive
and be proved in the disjunctive. See United States v. Niederberger,
580 F.2d 63, 67-68 (3d Cir. 1978).
Hall argues that the playground at the Vantage 78 apartment com-
plex was not a public playground as defined by the statute. The dis-
trict court held a hearing to determine whether the Government could
prove distribution within 1000 feet of a school or playground. The
district court determined that the Government could certainly prove
distribution within 1000 feet of the Christian Learner Academy, a pri-
vate elementary school as defined in 21 U.S.C. § 860(a). Hall did not
object to the district court's finding that the Christian Learner Acad-
emy was a private elementary school within 1000 feet of the conspira-
cy's distributions. Therefore we find that the district court did not
plainly err in its determination and we do not need to reach the issue
of whether the adjacent playground was open to the public.
Finally, Hall argues that he did not use the firebomb as use is
defined under Bailey, and therefore the evidence was not sufficient to
support his conviction on count eleven for a violation of 18 U.S.C.A.
§ 924(c). The indictment charged that Hall knowingly used and car-
ried a destructive device and aided and abetted another in the use of
the device.1 Hall argues that the evidence presented at trial does not
demonstrate use or carry by him.2 The evidence at trial established
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1 Hall does not object to the jury instructions given on this count and
does not challenge his conviction on count ten, the other 18 U.S.C.A.
§ 924(c) violation.
2 The Government argues that even if the evidence at trial was insuffi-
cient to demonstrate that Hall used or carried the device, the conviction
is still proper because the use and carry of the device was incident to the
conspiracy and Hall would be guilty of the conduct as a principal despite
the fact that he did not commit the direct act. The Government also
advances the argument that Hall could still be responsible for the act
because he aided and abetted Tracy Rosner. For the reasons that follow,
we find it unnecessary to address these arguments.
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that Hall drove Rosner and the two juveniles to the Hunter residence.
The destructive device was present in the vehicle on the drive to the
Hunter residence.
First, we again note that although the statute under which count
eleven was charged is written in the disjunctive, see 18 U.S.C.A.
§ 924(c), it is well-settled that a charging document may be written
in the conjunctive and be proved in the disjunctive. See Niederberger,
580 F.2d at 67-68. Therefore, if the Government could prove either
use or carry by Hall, the conviction on count eleven and the consecu-
tive sentence imposed would be proper.
With regard to the "carry" prong of § 924(c)(1), we have held that
there must be evidence of "bearing, movement, conveyance, or trans-
portation of the firearm." See United States v. Mitchell, 104 F.3d 649,
653 (4th Cir. 1997). This court has held that knowingly transporting
a weapon in a car during or in relation to a drug transaction satisfies
the carry prong of § 924(c). Id. at 654. We therefore find that the evi-
dence was sufficient to convict Hall on count eleven.
Accordingly, we affirm Hall's convictions and sentence. We deny
Hall's motions to file a pro se supplemental formal brief, for bail
pending appeal, "to protect the record for possible procedural
default," "to protect the record and Constitutional rights against pro-
cedural default," and "to protect against procedural default and consti-
tutional review De Novo." We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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