United States v. Williamson ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5328
ANTHONY D. WILLIAMSON, a/k/a Ant,
a/k/a Sebago,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5329
MELODY ANNETTE NIBLETT,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5334
EMJADIA PORTER, a/k/a Justice, a/k/a
Troy Miller,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5335
GREGORY TODD HARRELL,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CR-94-37-R)
Argued: April 5, 1996
Decided: June 4, 1996
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Irving Ray Byrd, Jr., Salem, Virginia, for Appellant
Niblett; Rhonda Lee Overstreet, Roanoke, Virginia, for Appellant
Harrell; Jonathan Mitcalfe Apgar, DAMICO & APGAR, Roanoke,
Virginia, for Appellant Williamson; William H. Cleaveland, RIDER,
THOMAS, CLEAVELAND, FERRIS & EAKIN, Roanoke, Virginia,
for Appellant Porter. Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Gary L. Lumsden, Roanoke, Virginia, for Appellant Harrell.
Robert P. Crouch, Jr., United States Attorney, Karen B. Peters, Assis-
tant United States Attorney, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
2
OPINION
PER CURIAM:
Anthony D. Williamson, Melody Annette Niblett, Emjadia Porter,
and Gregory Todd Harrell were charged with numerous offenses in
connection with their involvement in a crack cocaine conspiracy in
Roanoke, Virginia. A jury convicted the defendants on the following
counts. Williamson was convicted of conspiracy to possess with
intent to distribute and to distribute crack, aiding and abetting the dis-
tribution of crack, possessing with intent to distribute crack, and aid-
ing and abetting the possession with intent to distribute crack. See 21
U.S.C. §§ 841(a)(1) & 846; 18 U.S.C. § 2. Williamson was also con-
victed of knowingly possessing a firearm with an obliterated serial
number, see 18 U.S.C. § 922(k), and of using or carrying a firearm
in relation to a drug trafficking offense or a crime of violence, see 18
U.S.C. § 924(c). Niblett was convicted on one count of conspiracy
and one count of possession with intent to distribute crack. Harrell
was convicted on one count of conspiracy and one count of aiding and
abetting the distribution of crack. Porter was convicted on one con-
spiracy count, one count of intimidation of a witness, see 18 U.S.C.
§ 1513(a)(2), and one count of using or carrying a firearm in relation
to a drug trafficking offense or a crime of violence. Williamson was
sentenced to 211 months of imprisonment, Niblett to 33 months, Har-
rell to 240 months, and Porter to 270 months. The defendants raise
numerous challenges to their convictions and sentences, but we
affirm.
I.
In October 1993 Williamson and Harrell sold $250 worth of
cocaine to a confidential government informant, Shawn Muse, in the
apartment of Harrell's girlfriend. The following month, Muse drove
Harrell and Williamson to New York City to buy cocaine. In New
York, Harrell gave money to Williamson, who bought a freezer bag
full of powdered cocaine while Harrell and Muse waited for him in
a bar. Muse saw Williamson give the cocaine to Harrell, and Harrell
said that he planned to cook the cocaine into crack and sell it. Harrell
and Muse then drove back to Roanoke, leaving Williamson in New
York.
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Muse's brother, Antwan Muse, was a drug dealer who knew Wil-
liamson and Harrell. In January 1994 Williamson and David "Poo"
Grant accused Antwan Muse of stealing drugs from them at the apart-
ment of Harrell's girlfriend, the site of the earlier sale to Shawn Muse.
Williamson pulled out a chrome 9mm pistol with an extended clip,
"clicked it back," and put it against Antwan Muse's head. Antwan
Muse was with his son at the time, and another child was also in the
room. Antwan Muse testified that Williamson then punched him and
said that "[h]e was going to have some bodies like he was going to
kill up everybody in the house." Williamson left, and later Antwan
Muse filed a criminal complaint against him with the local police.
On January 24, 1994, police stopped Williamson's car because
they saw Porter (for whom they had an arrest warrant) in the passen-
ger seat. The police arrested Porter and asked Williamson if they
could search his car, a 1971 orange Ford Mustang. Williamson con-
sented to the search. The police found two rocks of crack in William-
son's pool cue bag in the trunk of the car. They then arrested
Williamson and searched him. The officers found a pager, $40 in
cash, and 13 grams of crack in a plastic bag in his underwear.
Three days later Porter rented an apartment that Williamson had
earlier considered renting. Williamson had declined renting the apart-
ment because the property manager would have required him to pro-
vide proof of employment. Shortly after Porter signed the lease on the
apartment, Williamson and Poo Grant moved in. Williamson paid the
February rent and asked the property manager to make some repairs.
Williamson was added to Porter's lease as a co-lessee at the end of
March.
Poo Grant and Melody Niblett were boyfriend and girlfriend (they
later married). They were co-owners of a car that had a vanity license
plate reading, "POO-MEL." On the evening of February 19, 1994,
Roanoke police were staking out the Indian Village housing project.
The POO-MEL car was parked on the street in front of some of the
project apartments, and police saw a pickup truck drive up to the car.
Grant got out of the passenger side of the car and walked over to the
pickup. The driver handed money to Grant, who then gave the money
to Niblett through the driver side window. Grant then walked into a
nearby apartment. Grant returned from the apartment a few minutes
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later, walked over to the pickup, and handed the driver a knife. Grant
returned to the POO-MEL car, and the car and the pickup drove off
in opposite directions. Police stopped the car and asked Niblett, who
was driving, for permission to search it. Niblett consented to the
search, but asked if she could first get a pack of cigarettes that had
been lying on the floorboard behind the driver's seat. The officer
asked Niblett if he could search the cigarette pack, and Niblett con-
sented. The officer discovered 11 grams of crack inside the cigarette
pack and arrested Niblett. The officer also found $370 in cash in
Niblett's jacket pocket. A search of the car revealed a small amount
of marijuana, a set of scales, and more cash.
Williamson was arrested on an outstanding warrant on April 5,
1994. Police then obtained a warrant to search his apartment. Niblett
and Grant were in the apartment when police arrived to execute the
warrant. Police found $2,810 in cash and more than 110 grams of
crack in a closet in Williamson's bedroom. In a second closet in Wil-
liamson's bedroom they found a .22 caliber pistol and a loaded 9mm
pistol with a defaced serial number. Under Williamson's mattress
they found an additional $1,178 in cash. In Grant's bedroom the offi-
cers found a small amount of crack and $1,630 in cash. In the kitchen
officers found scales and more than 32 grams of crack.
Less than a week later, Porter saw Shawn Muse and said to him,
"I ought to finish your snitching ass right here." Porter then showed
Muse a 9mm pistol with a long clip. Muse reported the threat to the
police, who obtained a warrant and arrested Porter in a bedroom in
his girlfriend's apartment. When they arrested Porter, the police
seized a loaded 9mm pistol, a pager, and $4,572 in cash.
II.
Defendants first challenge the sufficiency of the evidence.
When reviewing a sufficiency claim, we view the evidence in the
light most favorable to the government. The verdict must stand if
there is substantial evidence to support it. Glasser v. United States,
315 U.S. 60, 80 (1942). If "any trier of fact could have found the
essential elements of the crime beyond a reasonable doubt," the con-
viction must be upheld. Jackson v. Virginia, 443 U.S. 307, 319 (1979)
5
(emphasis in original); United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982).
There was sufficient evidence that all the defendants were guilty of
conspiracy. A defendant need not be aware of every aspect of the con-
spiracy to be convicted for participating in it. The government is
required only to prove that "he join[ed] the conspiracy with an under-
standing of the unlawful nature thereof and willfully join[ed] in the
plan on one occasion . . . even though he had not participated before
and even though he played only a minor part." United States v.
Roberts, 881 F.2d 95, 101 (4th Cir. 1989). The government must only
prove the existence of an agreement, express or implied, between two
or more persons (who are not government agents) to commit an
unlawful act, and it may meet its burden of proof by means of circum-
stantial evidence. See United States v. Morsley , 64 F.3d 907, 919 (4th
Cir. 1995), cert. denied, 116 S. Ct. 749 (1996); United States v.
Heater, 63 F.3d 311, 323-24 (4th Cir. 1995), cert. denied, 116 S. Ct.
796 (1996).
Muse's testimony established that Williamson and Harrell jointly
sold crack and that Williamson and Harrell jointly traveled to New
York to obtain cocaine to be cooked into crack. The defendants argue
that Muse was not a credible witness, but questions of witness credi-
bility are the province of the jury, not of the court of appeals. United
States v. Reavis, 48 F.3d 763, 771 (4th Cir.), cert. denied, 115 S. Ct.
2597 (1995). In any event, Muse's testimony was corroborated by a
surveillance tape of Muse's first undercover buy and by the evidence
seized from Williamson and Harrell. Muse's testimony was further
corroborated by evidence seized from the Williamson-Porter-Grant
apartment.
Porter's connection to the conspiracy is established by the evidence
that he rented the apartment Williamson and Grant used to store
cocaine, cash, and weapons, and that he allowed Williamson and
Grant to use the apartment for illicit purposes. There was also evi-
dence at trial that Porter frequently communicated with the other con-
spirators by means of cellular telephones and pagers. Indeed,
telephone and pager records showed that Porter, Harrell, Niblett,
Grant, and Williamson had been in nearly constant contact between
January and March 1994. Finally, the jury could have inferred that
6
Porter threatened Muse out of a desire to protect his co-conspirators
and further the ends of the conspiracy. See United States v. Balzano,
916 F.2d 1273, 1281 (7th Cir. 1990); United States v. Guerrero, 803
F.2d 783, 785 (3d Cir. 1986).
Niblett was not as tightly connected to the conspiracy as were the
other defendants, but her participation was still proven by substantial
evidence. We say this even though Grant testified that Niblett was not
a member of the conspiracy, and even though Niblett correctly points
out that mere association with individuals in a conspiracy cannot,
without more, give rise to a conspiracy conviction. United States v.
Giunta, 925 F.2d 758, 764 (4th Cir. 1991). In this case, however, the
government has established something more than mere random pres-
ence on one occasion at the scene of criminal activity. Niblett was
arrested with Grant after crack was found in her cigarette pack, she
co-owned a car in which scales and drugs were found, and she was
driving the car when the police stopped it. She also was found in the
Grant-Williamson-Porter apartment when it was raided. A defen-
dant's repeated presence during drug crimes tends to show conscious
participation in a conspiracy. See United States v. Martinez-
Moncivais, 14 F.3d 1030, 1035 (5th Cir.), cert. denied, 115 S. Ct. 72(1994); United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993).
For similar reasons, the evidence was sufficient to convict the
defendants of the substantive drug counts as well. Given the large
amount of crack that was seized, the jury could have properly inferred
the defendants' intent that it be distributed and that they aided and
abetted each other in its possession and distribution. United States v.
Bell, 954 F.2d 232, 235 (4th Cir. 1992).
The evidence was also sufficient on the gun counts. Williamson
was properly convicted on the count of possessing a firearm with an
obliterated serial number because the jury could have inferred that the
gun, which was found in Williamson's bedroom, was the same gun
Williamson pointed at Antwan Muse. Possession may be actual or
constructive and may be proven by circumstantial evidence. See
United States v. Pearce, 65 F.3d 22, 25-26 (4th Cir. 1995); United
States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993). The jury also
could have properly inferred that Williamson knew that the serial
number had been obliterated because the officers who seized the
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weapon testified that it was obvious that the serial number had been
defaced. See United States v. Moore, 54 F.3d 92, 101 (2d Cir. 1995)
(knowledge of defacement may be inferred), cert. denied, 116 S. Ct.
793 (1996). The § 924(c) convictions were valid because Williamson
used a firearm to threaten Antwan Muse when he believed Muse had
stolen drugs from him. Porter used a firearm in his attempt to intimi-
date Shawn Muse. Williamson and Porter brandished firearms in an
effort to scare Antwan and Shawn Muse; this use was"active employ-
ment" within the meaning of Bailey v. United States, 116 S. Ct. 501,
506 (1995). See United States v. Cook, 76 F.3d 596, 603 (4th Cir. 1996).1
Porter claims his conviction for witness intimidation was improper
because he did not know for certain that Shawn Muse was a govern-
ment informant. The version of 18 U.S.C. § 1513(a)(2) in effect when
Porter threatened Muse prohibited threats made "with intent to retali-
ate against any person for [giving] any information relating to the
commission or possible commission of a Federal offense." Porter cal-
led Muse a "snitch," and the jury could have inferred that Porter
threatened Muse because he believed Muse had given information to
the authorities, as Muse had in fact done. See United States v. Cofield,
11 F.3d 413, 419 (4th Cir. 1993), cert. denied , 114 S. Ct. 1125(1994); United States v. Kibler, 667 F.2d 452, 453 (4th Cir.) (defen-
dant told informant, "snitches get hurt . . . even in jail"), cert. denied,
456 U.S. 961 (1982). The jury could have concluded beyond a reason-
able doubt that Porter threatened Muse in retaliation for his giving
information to the police, information that led to Williamson's arrest
and threatened the continuing success of the conspiracy.
III.
The defendants' next challenges relate to the propriety of William-
son's arrest and the search of the Williamson-Porter-Grant apartment.
We hold that the arrest and the search were proper.
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1 The instruction given the jury on the § 924(c) counts was overbroad
in light of Bailey, and the defense did not object to the instruction at trial.
Because of the overwhelming evidence that Williamson and Porter made
active use of their weapons, they are not entitled to a new trial because
the erroneous instruction did not rise to the degree of "plain error"
required under United States v. Olano, 113 S. Ct. 1770, 1777-79 (1993).
8
A.
After Williamson threatened Antwan Muse, a warrant was issued
for his arrest on February 24, 1994. Williamson was not actually
arrested, however, until April 5, 1994. One reason for the delay was
because Antwan Muse was not certain of Williamson's address, and
therefore the police had difficulty finding Williamson. The arresting
officer also testified that even after he learned where Williamson
could be found, he delayed making the arrest because he did not wish
to jeopardize the pending investigation and because he believed that
if he moved too quickly the safety of either Shawn or Antwan Muse
could have been endangered. The warrant was valid, and we believe
the delay in execution was reasonable. See Hoffa v. United States, 385
U.S. 293, 310 (1966) ("There is no constitutional right to be
arrested."); United States v. Hassan El, 5 F.3d 726, 730-31 (4th Cir.
1993) (stop is valid if made on objectively reasonable basis), cert.
denied, 114 S. Ct. 1374 (1994); United States v. Bedford, 519 F.2d
650, 655-56 (3d Cir. 1975) (warrant is not stale if executed within a
reasonable amount of time), cert. denied, 424 U.S. 917 (1976). The
arrest was proper, and evidence taken from Williamson at that time
was properly seized pursuant to a search incident to arrest.
B.
The search of the Williamson-Porter-Grant apartment also was
proper because it was made pursuant to a warrant supported by proba-
ble cause.
The affidavit in support of the warrant contained some false infor-
mation, but the district court considered the sufficiency of the affida-
vit absent the false information.2 The redacted affidavit stated that
when Williamson was arrested he "had in his possession a large
amount of crack cocaine," that a "reliable informant has given infor-
mation to [the detective] that Anthony Williamson stores crack
cocaine inside the residence to be searched [the apartment]," and that
in the past the informant provided "information that has led to sixteen
(16) felony drug charges, with two (2) convictions and fourteen (14)
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2 This procedure was correct. Franks v. Delaware, 438 U.S. 154, 171-
72 (1978).
9
charges pending in court." In determining whether a warrant issued
on probable cause, a court must consider the totality of the circum-
stances identified in the warrant's supporting affidavit. Illinois v.
Gates, 462 U.S. 213, 230 (1983). Where a warrant is supported by the
statements of a confidential informant, both the informant's record of
reliability and his basis of knowledge in the particular case must be
considered when determining whether the report of criminal activity
outlined in the warrant is reliable. Id. at 233. Nevertheless, even if the
affidavit does not adequately describe the informant's basis of knowl-
edge, the warrant may still be upheld if the affidavit as a whole dem-
onstrates probable cause. Id. This affidavit described Shawn Muse's
successful track record. See McCray v. Illinois , 386 U.S. 300, 304
(1967); United States v. Shepherd, 714 F.2d 316, 317 (4th Cir. 1983),
cert. denied, 466 U.S. 938 (1984). Furthermore, a large amount of
crack was found on Williamson's person when he was arrested. This
fact independently corroborated Muse's claim that Williamson was a
drug dealer. See United States v. Lalor, 996 F.2d 1578, 1581 (4th
Cir.), cert. denied, 114 S. Ct. 485 (1993). Viewing the affidavit as a
whole, probable cause existed. See United States v. $149,442.43, 965
F.2d 868, 873-74 (10th Cir. 1992). Thus the evidence seized at the
apartment was properly used and admitted at trial.
IV.
Harrell and Porter challenge their sentence calculations, claiming
that the district court attributed too much cocaine to them. We dis-
agree.
In drug cases, a "defendant is accountable for all quantities of con-
traband with which he was directly involved and, in the case of a
jointly undertaken criminal activity, all reasonably foreseeable quanti-
ties of contraband that were within the scope of the criminal activity
that he jointly undertook." U.S.S.G. § 1B1.3, Commentary (n.2). A
defendant is liable for the acts of his co-conspirator if those acts "fall
within the scope of" the criminal agreement, even if the defendant and
his co-conspirator have not expressly agreed to undertake any particu-
lar act. United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993) (quoting
United States v. Jones, 965 F.2d 1507, 1517 (8th Cir.), cert. denied,
113 S. Ct. 346 (1992)), cert. denied, 114 S. Ct. 1086 (1994). The gov-
ernment must establish by a preponderance of the evidence that a par-
10
ticular amount of drugs may be attributed for sentencing purposes to
a particular defendant. United States v. McDonald, 61 F.3d 248, 255
(4th Cir. 1995). The government may meet its burden by pointing to
evidence adduced at trial, and the sentencing court may consider other
reliable evidence without regard to whether it was or could have been
admitted at trial. Id. On appeal, the sentencing court's determination
of the quantity of drugs attributable to a defendant must be upheld
unless clearly erroneous. Id.The district court attributed the cocaine from the New York trip to
Harrell. Harrell argues that the attribution was erroneous because the
only evidence that Harrell intended to cook the cocaine into crack was
Shawn Muse's testimony that Harrell said he planned to cook it. The
district court's decision to credit Muse's testimony was not clearly
erroneous.
The district court also overruled the probation officer's recommen-
dation and attributed all 307.34 grams of crack involved in the con-
spiracy to Porter, saying "that the pre-sentence report [ ] [ ] didn't
look at the overall involvement of this defendant to the extent that the
court viewed it." The court found that Porter"attempted to make this
overall venture succeed as a member of it, and his attempts to make
the overall venture succeed, not some [discrete] segment of this ven-
ture, leaves me to believe that all of the drugs were reasonably fore-
seeable to him and [ ] [ ] he should be accountable for them. It's that
simple." Porter argues that this finding was clearly erroneous because
Porter was never found with drugs on his person, nor was he ever
present when drugs were sold.
We believe the district court did not clearly err in holding Porter
responsible for the entire conspiracy. Porter rented the apartment for
Williamson and Grant, thus making it possible for them to store
drugs, weapons, and cash there. Porter was with the other conspirators
frequently and was in constant contact with them by means of tele-
phone and pager. Finally, Porter threatened Shawn Muse, the infor-
mant whose testimony eventually brought down the entire conspiracy.
The court reasonably could have concluded that Porter was the
group's enforcer and that he was intimately connected with every
aspect of its operation. As the district court noted, "Quite frequently
in a drug conspiracy the man at the top doesn't line his pockets with
11
the drugs. He is not the one that has the crack cocaine in his under-
wear at the time that he's arrested." The defendants were properly
sentenced.
V.
We have fully considered the defendants' remaining claims of
error, but we find those claims also to be without merit.3 We affirm
the convictions and sentences.
AFFIRMED
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3 Porter has filed a motion to file a supplemental brief and a motion to
modify the record to include the transcript of his September 6, 1994, sup-
pression hearing. The motions are granted. We have fully considered the
new materials, but we believe that Porter's additional claims of error are
meritless.
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