United States v. Tinsley ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4101
KEVIN TINSLEY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4118
GREGORY MCCORKLE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4119
SERGIO BARRIOS,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-249-A, CR-97-328-A)
Submitted: October 30, 1998
Decided: November 18, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jerome Patrick Aquino, Alexandria, Virginia; Gregory Edward Stam-
baugh, Manassas, Virginia; Edward Blair Brown, Alexandria, Vir-
ginia, for Appellants. Helen F. Fahey, United States Attorney, James
L. Trump, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated cases, Kevin Tinsley, Gregory McCorkle, and
Sergio Barrios appeal their criminal convictions and sentences. Hav-
ing thoroughly reviewed each of their claims, we affirm for the rea-
sons stated below.
I
Gregory McCorkle and Luis Figueroa began selling cocaine
together in 1994, upon McCorkle's suggestion that they pool their
money and buy a larger amount of cocaine than they had been able
to deal separately. The two men cut and packaged the drugs in their
apartments, which were in the same building in Washington, D.C.
Their business increased to the point that, by the summer of 1995,
they were buying kilos of cocaine from New York. McCorkle made
most of the trips to New York. McCorkle sold eighty percent of the
cocaine, and Figueroa sold twenty percent.
2
The clientele for this business consisted mostly of homosexual men
whom Figueroa and McCorkle met at bars and nightclubs in the
Washington, D.C., area. Most of the customers bought cocaine for
individual use, in quantities ranging from one-half gram to one-eighth
ounce. McCorkle delivered to customers at or near their homes, often
in Northern Virginia, or met customers at his apartment.
In 1994, McCorkle met Sergio Barrios. Barrios was soon involved
in the drug business. McCorkle, Figueroa and Barrios distributed both
powder and crack cocaine. They had several other individuals selling
cocaine for them. With the profits from the drug business, McCorkle,
Barrios and Figueroa bought new cars and real estate, including
McCorkle's condominium in Hawaii. McCorkle had several bank and
brokerage accounts. Upon their subsequent arrest, Barrios had over
$115,000 in cash seized from his apartment, and McCorkle had
almost $40,000 seized in Hawaii.
Figueroa had a friend named Kevin Lewis who ran a cleaning busi-
ness. McCorkle devised a plan whereby McCorkle and Figueroa
would appear to work for Lewis, and could receive life and health
insurance through the business. McCorkle laundered drug proceeds
through the company. Barrios later became part of this scheme.
In August 1996, McCorkle and Figueroa sold the drug business to
Barrios for $100,000. Even after this transaction, McCorkle helped
Barrios cut, package and distribute drugs when he was in the area.
In December 1995, McCorkle was stopped for speeding by Mary-
land State Trooper David Hughes. During the stop, Hughes seized a
kilogram of cocaine from the car, and arrested McCorkle. McCorkle
was charged with possession with intent to distribute cocaine, and
released on bond. By the new year, McCorkle began planning to have
Trooper Hughes killed. McCorkle located a house in Abingdon,
Maryland, that he thought belonged to Trooper Hughes, though in fact
it belonged to Trooper Hughes's brother, Michael, who is also a state
trooper, and their parents. McCorkle made at least two reconnaissance
trips with his friend and customer, Norfleet Person, to Abingdon,
Maryland. Person traded McCorkle a Glock 9 mm pistol for drugs and
money. Person also discussed the plan to shoot the trooper with Bar-
3
rios, and made three trips to Abingdon with Barrios to view the troop-
er's house.
McCorkle asked Bruce Woody to find someone to kill Hughes. He
promised a $5000 finder's fee, with the killer to receive $10,000.
Woody introduced McCorkle to Vernon Bryant, and the latter
recruited William Potts. McCorkle took the pair to Abingdon three or
four times, and discussed possible methods of murder, including
using a bomb. McCorkle bought a car for Bryant and provided the
pair with an assault rifle and two pistols. Bryant bailed out of the
scheme, so Woody and Potts attempted to kill Hughes. Potts broke
into the home, armed with a 9 mm pistol he obtained from McCorkle.
The attempt failed. Within the week, McCorkle returned twice more
to Abingdon with the hired killers, but they did not see Trooper
Hughes.
McCorkle, having been introduced to Kevin Tinsley by Woody,
hired Tinsley to kill Hughes. McCorkle drove Tinsley and Jose Fer-
maintt to Abingdon to discuss their plans. Tinsley and Fermaintt
made several other trips to the area. McCorkle gave Fermaintt three
guns and some walkie talkies to use. On August 27, Michael Hughes
was driving down the road on which he lived, when a man came out
of the trees and began firing at him. Several shots were fired, and
Hughes was struck in the left arm, shattering the bone.
McCorkle told Figueroa "they" did the shooting, and that he paid
$10,000. McCorkle later stated that the wrong man was shot, and he
intended to try again to kill David Hughes.
Barrios was arrested as a result of a sting cocaine purchase by an
undercover officer in April 1997. McCorkle returned from Hawaii
and went through Barrios's apartment to dispose of any incriminating
evidence. He took what had been sold to McCorkle as a remote-
controlled bomb and disposed of it in a public trash can.
Tinsley was convicted of conspiracy to travel in interstate com-
merce with intent that a murder be committed as consideration for
promise to pay, in violation of 18 U.S.C.A. § 1958 (West Supp.
1998), and two counts of using and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.A. § 924(c)
4
(West Supp. 1998), 18 U.S.C. § 2 (1994). He was sentenced to forty-
five years imprisonment. McCorkle was convicted of continuing
criminal enterprise, in violation of 21 U.S.C.A.§ 848(a), (c) (West
Supp. 1998); conspiracy to travel in interstate commerce with intent
that a murder be committed, in violation of 18 U.S.C. § 1958; three
counts of using and carrying a firearm in relation to a drug trafficking
offense, in violation of 18 U.S.C. §§ 924(c), 2; money laundering, in
violation of 18 U.S.C.A. § 1956(a)(3)(A), (B) (West Supp. 1998); and
attempting to kill a Maryland State Police Officer with intent to pre-
vent his testimony, in violation of 18 U.S.C.A.§ 1956(a)(1)(A) (West
Supp. 1998). He was sentenced to life plus forty-five years imprison-
ment. Barrios was convicted of continuing criminal enterprise, in vio-
lation of 21 U.S.C. § 848(a), (c); conspiracy to travel in interstate
commerce with intent that a murder be committed, in violation of 18
U.S.C. § 1958; two counts of using and carrying a firearm in relation
to a drug trafficking offense, in violation of 18 U.S.C. §§ 924(c), 2;
six counts of distribution of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (1994); and money laundering, in violation of 18
U.S.C.A. § 1956(a)(3)(A), (B). He was sentenced to life plus twenty-
five years imprisonment.
II
In No. 98-4101, Tinsley raises five issues on appeal. First, he
claims that the evidence was insufficient to support his conviction for
using or carrying a .357 caliber revolver in the conspiracy to kill
David Hughes. Tinsley claims that the jury confused testimony con-
cerning the .357 revolver and a .357 rifle, both of which were
involved in the case.
On direct appeal, the sufficiency of the evidence is viewed in the
light most favorable to the Government to determine whether a ratio-
nal jury could have found each element of the offense beyond a rea-
sonable doubt. United States v. Phan, 121 F.3d 149, 152 (4th Cir.
1997), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3388 (U.S. Feb. 23,
1998) (No. 97-863). Here, there was evidence that McCorkle gave
Fermaintt a .357 pistol, a .357 rifle, and a .45 handgun. Fermaintt dis-
cussed with McCorkle and Tinsley how those guns would be used to
kill Trooper Hughes. Fermaintt gave Morales the same three guns in
a black bag, and asked Morales to give them to Tinsley to be given
5
back to McCorkle. Morales took the .45 out of the bag but gave the
rest of the contents to Tinsley, and later gave the .45 to Tinsley as
well. Thus, there is sufficient evidence that Tinsley received from
Morales and carried the .357 handgun in connection with the conspir-
acy to murder David Hughes. The fact that Tinsley can construct
another scenario, or challenge the evidence supporting this one, is
irrelevant on appeal.
Next, Tinsley argues that the district court should have granted him
a new trial on the basis of after-discovered evidence. McCorkle testi-
fied at trial that Fermaintt and Morales were involved in an unrelated
killing. According to Tinsley, the Government portrayed McCorkle as
a liar on this point during cross-examination. Tinsley claims that the
Government now believes McCorkle was right about the murder, cit-
ing to the Government's response to a post-trial motion to vacate.
Tinsley argues that Morales breached his plea agreement by failing to
disclose his involvement in this murder. He also asserts that the integ-
rity of the judicial process has been impaired because McCorkle was
portrayed as a liar when he was testifying truthfully, and because Fer-
maintt misled the jury. If the jury had been aware of these circum-
stances, according to Tinsley, it might have acquitted Tinsley of all
charges.
In this Circuit, motions for new trial based on after-discovered evi-
dence, Fed. R. Crim. P. 33, must satisfy a five-part test: (1) the evi-
dence is newly discovered; (2) facts are alleged from which the court
can infer due diligence on the movant's part; (3) the evidence is not
just cumulative or impeaching; (4) the evidence is material; and (5)
the evidence would likely result in acquittal if a new trial were
granted. United States v. Christy, 3 F.3d 765, 768 (4th cir. 1993). We
have never granted a new trial unless all five parts of the test were
established. United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.
1995). Here, the district court denied Tinsley's motion for a new trial
based on after-discovered evidence on the grounds that the evidence
in question was impeachment evidence, and would not likely have led
to a new trial. This Court reviews the district court's decision for
abuse of discretion. United States v. Arrington , 757 F.2d 1484, 1486
(4th Cir. 1985).
The evidence that Fermaintt was not truthful about his part in a
murder in Washington, D.C., does not bear directly on his testimony
6
concerning the drug business of McCorkle and Barrios or the conspir-
acy to kill Trooper Hughes. At most, it is impeachment evidence that
might affect the jury's view of his credibility. Thus, this claim lacks
merit.
Tinsley next asserts that the Government did not present sufficient
evidence to sustain his conviction for murder for hire, in violation of
18 U.S.C. § 1958(a). He claims that the Government offered no evi-
dence that he received or was promised anything of pecuniary value
to murder Trooper Hughes.
Section 1958(a) provides, in pertinent part:
Whoever travels in . . . interstate or foreign commerce . . .
with intent that a murder be committed in violation of the
laws of any State or the United States as consideration for
the receipt of, or as consideration for a promise or agree-
ment to pay, anything of pecuniary value, or who conspires
to do so, shall be [fined or imprisoned as provided].
Thus, the elements that must be proved are: (1) travel in interstate
commerce; (2) with the intent that a murder be committed; (3) as con-
sideration for the receipt of or promise to pay something of pecuniary
value. See United States v. Morin, 80 F.3d 124, 127 n.2 (4th Cir.
1996).
Tinsley argues that there was no evidence at trial that he received
anything for his part in the conspiracy to murder Trooper Hughes. He
points to McCorkle's testimony that "I didn't pay Tinsley anything at
any time," and Woody's testimony that Tinsley denied that he had
been paid shortly after the shooting.
Viewing the evidence in the light most favorable to the Govern-
ment, as we must, there is evidence sufficient to support the convic-
tion. Fermaintt testified that Tinsley came to him with a money-
making proposition, saying he knew someone who would pay them
$25,000 to perform a murder. Tinsley later introduced McCorkle as
that person, and the three of them drove to Maryland to assess the
location for the murder. This evidence is sufficient and thus, this
claim lacks merit.
7
Tinsley argues that the district court erred in allowing witnesses to
testify that he had been recently released from jail. The district court
ruled before trial that such references were permissible, because they
were needed to connect certain acts and witnesses to Tinsley. The
court also ruled, however, that no mention was to be made of the
identity of the crime of conviction, and that a cautionary instruction
would be given to the jury when the issue was raised. Tinsley asserts
that the evidence was inadmissible under Fed. R. Evid. 403, 404 and
609. The district court's limited admission of such references for
identification purposes does not constitute an abuse discretion under
Fed. R. Evid. 403 or 404(b). See United States v. Love, 134 F.3d 595,
603 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3790 (U.S.
June 15, 1998) (No. 97-9085); United States v. Queen, 132 F.3d 991,
995 (4th Cir. 1997), cert. denied, #6D6D 6D# U.S. ___, 66 U.S.L.W. 3704(U.S. Apr. 27, 1998) (No. 97-8487). Tinsley's reliance on Fed. R.
Evid. 609 is misplaced, as Tinsley was not a witness and there was
no evidence admitted that he had been convicted of a crime. Mere ref-
erence to his release from jail does not constitute evidence of a con-
viction.
Finally, Tinsley challenges the district court's denial of his motion
for severance, alleging that his trial with McCorkle and Barrios
unfairly prejudiced him because of the extensive testimony about
their drug business, lavish lifestyle, and homosexual relationships.
The district court denied the motion to sever, holding that Tinsley was
involved "squarely in all charges sufficiently that he c[ould] be fairly
and appropriately tried in the one case." The Government argues that,
because Tinsley was charged as a member of the drug conspiracy and
the criminal enterprise, all of the drug-related evidence would have
come in even in a separate trial.
The district court's decision not to grant a motion to sever under
Fed. R. Crim. P. 14 is reviewed for abuse of discretion. United States
v. Roseboro, 87 F.3d 642, 647 (4th Cir. 1996), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3465 (U.S. Jan. 6, 1997) (No. 96-6061). As a gen-
eral rule, defendants who are indicted together are tried together.
United States v. Williams, 10 F.3d 1070, 1079 (4th Cir. 1993). The
movant bears the burden of showing that the prejudicial joinder would
result in a miscarriage of justice. Id. at 1080. We conclude that the
district court did not abuse its discretion in this instance.
8
III
In No. 98-4118, McCorkle asserts seven issues on appeal. First, he
argues that the Government did not sustain its burden of proof to sup-
port his conviction for engaging in a continuing criminal enterprise
(CCE), in violation of 21 U.S.C. § 848.
The Government must prove the following elements to support a
CCE conviction: (1) defendant committed a felony violation of the
federal drug laws; (2) the violation was one of a series of infractions
of the drug laws; (3) the violations were made in concert with five or
more people; (4) defendant was an organizer, supervisor, or held
some management position as to those people; and (5) defendant
received substantial income from the continuing violations. United
States v. Wilson, 135 F.3d 291, 303 (4th Cir.), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3758 (U.S. May 26, 1998) (No. 97-8750). We
uphold the jury verdict if there is substantial evidence, viewed in the
light most favorable to the government, to support it. Id. The manage-
ment element is given a common sense interpretation, bearing in mind
that the statute is intended to reach the leaders of the drug trade. Id.McCorkle challenges the third and fourth elements of the offense.
The Government offered the following facts as support for McCork-
le's role as organizer, supervisor, and manager. McCorkle negotiated
with Kevin Lewis to set up the money laundering scheme. McCorkle
brought Barrios into the drug business, and arranged for him to be
part of the money laundering plan. Before Barrios bought the busi-
ness, McCorkle paid him $1000 to travel to New York to buy cocaine.
McCorkle arranged a new drug source for himself, Figueroa and Bar-
rios. Bruce Woody agreed to work for McCorkle selling cocaine on
consignment. McCorkle recruited Brian Baldwin to work for Barrios.
McCorkle organized the sale of the business from himself and Figue-
roa to Barrios. Todd Tolson sold cocaine for McCorkle. After
McCorkle and Barrios were arrested, McCorkle directed Figueroa and
Person in destroying evidence, wiring money, and paying attorneys.
McCorkle also directed the entire conspiracy to kill Hughes, which
was intended to cover up the drug conspiracy and was financed with
money from the drug conspiracy. That effort involved Bruce Woody,
Vernon Bryant, William Potts, Kevin Tinsley, Jose Fermaintt and oth-
9
ers. McCorkle obtained weapons and walkie talkies, interviewed
potential killers, drove them to Maryland, showed them the Hughes
house, and described Hughes.
Therefore, it is clear that the evidence was sufficient to prove that
McCorkle supervised, managed, and directed five or more people in
the continuing criminal enterprise at issue, and his conviction for that
offense is affirmed.
McCorkle raises four claims challenging the computation of his
sentence. First, he asserts that he is entitled to a two-level reduction
for acceptance of responsibility. Under U.S. Sentencing Guidelines
Manual § 3E1.1(a) (1995), a defendant who clearly shows acceptance
of responsibility for an offense may have his offense level decreased
by two levels. We review the district court's factual findings regard-
ing denial of an acceptance of responsibility adjustment under a
clearly erroneous standard. United States v. Myers, 66 F.3d 1364,
1372 (4th Cir. 1995). The adjustment is not meant to apply where
defendant has put the government to its burden of proof at trial.
USSG § 3E1.1, comment. (n.2); United States v. Castner, 50 F.3d
1267, 1279-80 (4th Cir. 1995). An obstruction of justice enhancement
normally shows that the defendant has not accepted responsibility for
his criminal conduct. USSG § 3E1.1, comment. (n.4); United States
v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).
McCorkle testified at trial and admitted some, but not all, of the
conduct for which he was convicted. However, the Government put
on a lengthy trial, much of which concerned McCorkle's efforts to
obstruct justice by attempting to have a potential witness against him
murdered before trial. Therefore, the district court's finding that
McCorkle is not entitled to an adjustment for acceptance of responsi-
bility is not error.
Next, McCorkle asserts that the district court erred at sentencing in
finding him responsible for over 1.5 kilograms of crack cocaine. The
sentencing court relied on the calculations of the probation officer in
the presentence report. We review the district court's factual findings
as to the amount of drugs attributable to a defendant for clear error.
United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398).
10
McCorkle bears the burden of proving that the information in the pre-
sentence report relied on by the district court is incorrect; mere objec-
tions are inadequate. Love, 134 F.3d at 606.
McCorkle argues that the information in the presentence report is
unreliable because it is based in part on hearsay statements from
Bruce Woody to investigators about the amounts of crack cocaine
Woody bought from McCorkle. In computing drug quantities for sen-
tencing, the district court can consider any reliable evidence, includ-
ing hearsay. United States v. Bowman, 926 F.2d 380, 381 (4th Cir.
1991). Here, the PSR computation is based on Woody's statements
that, from the spring of 1995, he bought one quarter to one half ounce
of crack from McCorkle every week. He increased the amount later
that year to two ounces of crack per week from McCorkle, and con-
tinued to buy one to two ounces of crack per week from Barrios when
he took over the business until the latter's arrest in April 1997.
Woody testified at trial as to these amounts and was subject to cross
examination. Other customers bought crack cocaine as well.
McCorkle asserts nothing that challenges the reliability of this infor-
mation. Therefore, the findings of the district court concerning drug
quantities are not clearly erroneous.
McCorkle next asserts that his two-level enhancement for obstruc-
tion of justice was improper because it was based on the same con-
duct for which he was indicted--interstate murder for hire and
attempted murder of a witness--and therefore constituted double
counting.
The district court's factual findings on obstruction of justice will
be overturned on appeal only if clearly erroneous. Its legal interpreta-
tions are subject to de novo review. United States v. Daughtrey, 874
F.2d 213, 217-18 (4th Cir. 1989). Under USSG § 3C1.1, a defen-
dant's offense level may be increased two levels if he attempted to or
did willfully obstruct or impede the administration of justice during
"investigation, prosecution, or sentencing" of an offense. Application
note 6 provides that, where a defendant is convicted for an obstruction
of justice offense, the adjustment is not to apply except where "a sig-
nificant further obstruction occurred . . . ." This note is intended to
avoid double counting of the offense. United States v. Harris, 104
11
F.3d 1465, 1477 (5th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3256 (U.S. Oct. 6, 1997) (No. 96-9169).
McCorkle is wrong that his obstruction of justice enhancement was
based on the underlying offense conduct. The district court based the
enhancement on the fact that McCorkle's testimony at trial concern-
ing the murder for hire counts was perjurious. This was not double
counting the interstate murder for hire and attempted murder of a wit-
ness, but an enhancement for further attempts at obstruction of justice.
The district court found the testimony to be knowing and materially
false testimony. United States v. Dunnigan, 507 U.S. 87, 94-95
(1993). Thus, this claim lacks merit.
McCorkle received a four-level enhancement to his base offense
level under USSG § 2A2.1(b)(1)(A) (1995), on the ground that
Michael Hughes sustained "permanent or life-threatening bodily
injury." McCorkle argues that he should have received instead a two-
level increase under USSG § 2A2.1(b)(1)(B) for serious bodily injury.
Permanent or life-threatening injury is defined as"injury involving
a substantial risk of death; loss or substantial impairment of the func-
tion of a bodily member, organ, or mental faculty that is likely to be
permanent, or an obvious disfigurement that is likely to be perma-
nent." USSG § 1B1.1, comment. (n.1(h)). In contrast, serious bodily
injury is defined as "injury involving extreme physical pain or the
impairment of a function of a bodily member, organ, or mental fac-
ulty; or requiring medical intervention such as surgery, hospitaliza-
tion, or physical rehabilitation." USSG § 1B1.1, comment. (n.1(j)).
Because of the permanent damage to his arm, Michael Hughes will
not be able to maintain his chosen career as a state trooper. He has
retained enough use of his arm to perform day-to-day activities such
as grooming himself. But he cannot perform the more strenuous activ-
ities required of a state trooper. We hold that this injury is the perma-
nent, substantial impairment of a bodily member contemplated by the
guideline.
Next, McCorkle asserts that all statements and evidence related to
the seizure of cocaine by Trooper David Hughes should be sup-
pressed, as the seizure violated his Fourth Amendment rights. We
12
review de novo whether a seizure is justified based on a particular sit-
uation, but we review factual findings under a clearly erroneous stan-
dard. United States v. Perrin, 45 F.3d 869, 871 (4th Cir. 1995).
An officer who observes a traffic violation has probable cause to
stop the car. Whren v. United States, 517 U.S. 806, 810 (1996). David
Hughes testified that McCorkle was speeding. McCorkle presented an
Illinois driver's license, although the car had Virginia tags and was
not registered to him. McCorkle appeared extremely and unusually
nervous, to the point that his hands and legs were trembling and his
face was twitching. After Hughes asked McCorkle to step into his
cruiser, McCorkle avoided eye contact and was sweating, although it
was a cold night.
Hughes called for backup because of McCorkle's extreme nervous-
ness. In addition, the trooper was concerned that McCorkle might
attempt to flee, because of the way he kept eying the door handle and
seemed to be inattentive to the trooper. McCorkle acknowledged that,
although it was not his car, there might be some marijuana in the car.
When the backup arrived, a canine scan was performed and the dog
alerted to the car. The troopers searched the car and discovered the
kilogram of cocaine.
The trooper was entitled to stop the speeding car, and Hughes then
observed physical actions and responses that could reasonably lead
him to be suspicious. McCorkle admitted to the possibility that the car
held marijuana, and this provided probable cause for the canine
sweep. When the dog alerted, the subsequent search was justified. No
more than fifteen minutes passed in the entire episode. There was no
violation of the Fourth Amendment which would entitle McCorkle to
suppress his statements and the drugs discovered in the car.
Finally, McCorkle challenges the district court's order disqualify-
ing Patrick Hoover as his counsel. Hoover represented McCorkle on
the state charges resulting from the traffic stop and had represented
him previously. Hoover also had previously been counsel for Scott
Johnson, a witness against McCorkle. The prior representation of
Johnson related to drug usage and trafficking. Johnson refused to
waive his Sixth Amendment privilege as to Hoover. The Government
moved to disqualify Hoover because of this conflict of interest, and
13
Hoover acknowledged the conflict. The district court ruled that allow-
ing Hoover to remain in the case would compromise the system, as
Hoover would be "unable to fully and aggressively cross-examine
Johnson" without using knowledge gained by representing Johnson.
McCorkle argues that this ruling violated his Sixth Amendment
right to counsel of his own choosing, and asserts that co-counsel
could have handled Johnson as a witness. The Sixth Amendment right
to choose one's counsel is circumscribed, however."Federal courts
have an independent interest in ensuring that criminal trials are con-
ducted within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them." Wheat v. United
States, 486 U.S. 153, 160 (1988). The district court has wide latitude
in refusing to accept waivers of possible as well as actual conflicts.
Id. at 163. Representation by counsel who had represented a signifi-
cant potential witness for the Government poses a real risk of conflict,
one that might not be eliminated by having co-counsel examine the
witness. United States v. Williams, 81 F.3d 1321, 1325 (4th Cir.
1996). The district court did not abuse its discretion in disqualifying
Hoover.
IV
Barrios raises two claims on appeal. First, he asserts that the Gov-
ernment failed to present sufficient evidence to support his conviction
for using or carrying a .45 caliber semi-automatic pistol, in violation
of 18 U.S.C. § 924(c). To sustain a conviction under § 924(c), the
Government must prove: (1) that the defendant used or carried a fire-
arm; and (2) that he did so during and in relation to a drug trafficking
offense. United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).
The .45 caliber semi-automatic at issue here was sold by Peter
Badalati to Barrios and McCorkle. James Abston brokered the deal,
in which Badalati paid $850 and the gun, valued at $450, in exchange
for an ounce of cocaine. According to Abston, Barrios and McCorkle
both made the deal for the gun. Barrios grabbed the gun from
McCorkle, cocked it, "slammed back the slide," then gave it back to
McCorkle. When the latter could not work the gun, Barrios took it
back and demonstrated again.
"Use" of a firearm to barter for drugs falls within the statutory defi-
nition of § 924(c). Smith v. United States , 508 U.S. 223, 240-41
14
(1993); see Bailey v. United States, 516 U.S. 137, 146 (1995). View-
ing the evidence in the light most favorable to the Government, Bar-
rios was deeply involved in the particular bargain through which he
and McCorkle acquired the .45 in exchange for drugs. He was present
when Abston arrived with the gun, and he handled it and showed
McCorkle how to use it. Therefore, this claim is without merit.
Finally, Barrios asserts, as did McCorkle, that he did not act as an
organizer, manager, or supervisor to five or more people, so that
insufficient evidence sustains his conviction under 21 U.S.C. § 848.
He admits that he supervised several people, "but never as many as
five." Barrios admits he supervised Brian Baldwin and Jeffrey Palsa.
Mimi Latt and Brian Riffey testified at trial that they sold cocaine for
Barrios. Barrios taught Ray Atagan how to cut and package the drug
and keep records, and provided him with a scale and baggies. He
instructed Atagan how and when to dilute the drug.
Barrios hired two people, White and Sills, to kill Trooper Hughes.
He offered them $25,000 for the job, took them to Maryland to see
the officer's house, and suggested ways of accomplishing the deed.
Viewing the evidence in the light most favorable to the Government,
Glasser v. United States, 315 U.S. 60, 80 (1942), sufficient evidence
supports Barrios's conviction for continuing criminal enterprise.
We have thoroughly reviewed the claims of these three Appellants,
and find them to lack merit. Therefore, we affirm their convictions
and sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and oral argument would not aid the decisional process.
AFFIRMED
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