United States v. McDonald ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4432
MICHAEL ANTHONY MCDONALD,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-95-266)
Submitted: April 8, 1997
Decided: April 25, 1997
Before WIDENER and HAMILTON, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William E. Martin, Federal Public Defender, William S. Trivette,
Assistant Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Paul A.
Weinman,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Michael McDonald appeals his conviction and sentence for con-
spiring to distribute crack cocaine, in violation of 21 U.S.C. §
846(1994), distributing crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (1994), and carrying and using a firearm during the
com-
mission of a felony, in violation of 21 U.S.C.A.§ 924(c)(1) (West
Supp. 1996). We affirm.
In 1993, Special Agent Terry Johnson of the North Carolina State
Bureau of Investigation and informant Dale Miller conducted an
undercover operation in the Liberty Street Public Housing develop-
ment. During this time, both Johnson and Miller bought crack from
several drug dealers who said they received the drugs from McDon-
ald. Eventually, Agent Johnson met with McDonald directly to buy
crack cocaine. McDonald, suspecting that Agent Johnson was a police
officer, gave the crack to an associate who then sold the crack to
Agent Johnson and immediately gave the proceeds to McDonald. Fol-
lowing this sale, Agent Johnson made another buy from McDonald's
half-brother who assured Agent Johnson that the crack came from
McDonald.
Following the trial, McDonald moved for a new trial claiming juror
misconduct. The district court denied the motion following a
hearing
and denied the renewed motion at sentencing. On appeal, McDonald
claims that the district court erred in denying his motion for new
trial;
he also claims that there was insufficient evidence to sustain a
convic-
tion and that the district court erred in enhancing his sentence
for
being a leader or organizer of a criminal activity involving five
or
more participants under United States Sentencing Commission,
Guidelines Manual, § 3B1.1 (Nov. 1995).
This court reviews a district court's determination on a motion for
new trial for abuse of discretion. See City of Richmond v. Madison
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Management Group, Inc., 918 F.2d 438, 459 (4th Cir. 1992). A party
moving for new trial because of juror misconduct bears the burden
of
demonstrating that a juror failed to answer a material question,
and
that a truthful response by the juror would have provided a valid
basis
to challenge for cause. See McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984). McDonald fails to establish
that the juror in question failed to answer a material question
giving
him a valid basis to challenge the juror for cause. McDonald does
not
show that the juror was incapable of making a fair and impartial
deci-
sion simply because she had minimal contact with a defense witness
a year and a half before trial and attended the same church as a
prose-
cution witness. McDonald further claims that the district court
erred
in not summoning the juror to the motion hearing. A district court
is
not required to summon a juror to testify when the allegations of
mis-
conduct are unsubstantial. See generally United States v. Easter,
981
F.2d 1549, 1553 (10th Cir. 1992).
McDonald next claims that there was insufficient evidence to sup-
port his conviction. Evidence is sufficient to support a conviction
so
long as, viewing the evidence in the light most favorable to the
prose-
cution, any rational trier of fact could have found the essential
ele-
ments of the crime beyond a reasonable doubt. Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Brewer, 1 F.3d
1430,
1437 (4th Cir. 1993). Viewing the evidence in the light most favor-
able to the Government, the testimony of the individuals "running
sales" for McDonald, and the testimony of the undercover agents as
to the drug transactions with McDonald, provided a sufficient basis
to support McDonald's conviction of conspiring to distribute crack
cocaine, distributing crack cocaine, and carrying and using a
firearm
in the commission of a drug trafficking crime. McDonald's arguments
regarding the relative credibility of the Government's witnesses
and
his own alibi witnesses cannot serve as a basis for appellate
relief as
this Court will not review the jury's credibility determinations.
United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Finally, McDonald claims that the district court erred in enhancing
his sentence under USSG § 3B1.1 for being an organizer or leader.
The determination that a defendant is an organizer or leader in an
offense is essentially a factual question reviewable for clear
error.
United States v. Harriott, 976 F.2d 198, 202 (4th Cir. 1992).
During
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the sentencing hearing, the district court judge heard testimony
from
two individuals who "ran sales" for McDonald and attended a "cane
party" thrown by McDonald to recruit runners and solidify loyalty.
Following this testimony, the district court judge identified six
indi-
viduals who "ran sales" for McDonald and enhanced his sentence. We
find that the district court did not err in determining that
McDonald
had a leadership role in the conspiracy to distribute crack
cocaine.
Accordingly, we affirm the judgment of the district court. We deny
McDonald's motions to file a pro se supplemental brief, a
supplemen-
tal reply brief, and several addendums to the supplemental brief.
We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argu-
ment would not aid the decisional process.
AFFIRMED
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