United States v. Williams ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4030
THOMAS LEE WILLIAMS, a/k/a Ty,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4060
MARGARET JONES, a/k/a Barbara
Green,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-95-1)
Submitted: October 31, 1996
Decided: November 20, 1996
Before WILKINS and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Dale T. Cobb, Jr., BELK, COBB, CHANDLER & GOLDSTEIN,
P.A., Charleston, South Carolina; W. E. Jenkinson, III, JENKINSON
& JENKINSON; Lionel S. Lofton, LAW OFFICES OF LIONEL S.
LOFTON, Charleston, South Carolina, for Appellants. J. Rene Josey,
United States Attorney, Mark C. Moore, Assistant United States
Attorney, Scarlett A. Wilson, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants were indicted and tried together. The jury convicted
Appellant Williams of one count each of conspiracy to possess with
intent to distribute and to distribute cocaine and cocaine base
("crack"), possession with intent to distribute cocaine base, distribu-
tion of cocaine and cocaine base, aiding and abetting the possession
and distribution of cocaine, attempted possession of cocaine with
intent to distribute, and possession of a firearm in relation to a drug
trafficking offense. The jury convicted Appellant Jones of one count
each of conspiracy to possess with intent to distribute and to distribute
cocaine and cocaine base ("crack") and aiding and abetting the pos-
session and distribution of cocaine. Appellants filed timely notices of
appeal, and this court consolidated the appeals. On appeal, Appellants
challenge the admission of a suitcase containing cocaine, the denial
of Appellant Jones's motion for severance, the denial of a joint
motion for a mistrial, and the Government's alleged use of perjured
testimony. Finding no errors, we affirm the convictions and sentences.
In June 1994, police officers in Charleston, South Carolina, acting
on a tip from a police officer in Hollywood, Florida, discovered
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approximately four kilograms of cocaine in a suitcase taken off of an
Amtrak train in Charleston. The Government alleged that this same
suitcase was placed on the train in Hollywood by Appellants. Appel-
lants contend that the Government did not present sufficient authenti-
cation evidence, as is required under Fed. R. Evid. 901, to show that
the suitcase discovered in Charleston containing cocaine was the
same suitcase seen in Hollywood, or, alternatively, that the suitcase
was not tampered with along the way. We disagree.
The purpose of Fed. R. Evid. 901 is to ensure that the evidence
presented is what the proponent claims it to be. While the ultimate
question of authenticity is one for the jury, the trial judge performs
an important "gate-keeping" function and must determine whether the
proponent "has offered a satisfactory foundation from which the jury
could reasonably find that the evidence is authentic." United States v.
Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). Resolution of this issue
lies within the discretion of the trial judge.
While Appellants are correct that there are "gaps" in the evidence,
the trial judge correctly ruled that the "gaps" in the evidence went to
the weight which could be accorded to the evidence, not to its admis-
sibility. See United States v. Howard-Arias, 679 F.2d 363, 366 (4th
Cir.), cert. denied, 459 U.S. 874 (1982); see also United States v.
Abreu, 952 F.2d 1458, 1467 (1st Cir.), cert. denied, 503 U.S. 994(1992); United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.),
cert. denied, 491 U.S. 909 (1989). We hold that the evidence, taken
as a whole, was sufficient for the jurors to reasonably find that the
suitcase containing cocaine in Charleston was the same one Williams
and Jones placed on the train in Hollywood. Therefore, the trial judge
did not abuse her discretion in admitting the suitcase.
The trial judge also did not abuse her discretion in denying Appel-
lant Jones's motion to sever or in denying the joint motion for a mis-
trial. Although Jones was only named in two of the nine counts in the
indictment, the general rule is that co-conspirators are tried together.
This is true even where one co-conspirator is charged with more
counts than the other. See United States v. Porter, 821 F.2d 968 (4th
Cir. 1987), cert. denied, 485 U.S. 934 (1988). The trial judge here
gave proper limiting instructions throughout the trial and at the close
of evidence. In addition, Jones's attorney frequently reminded the
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jury that certain witnesses and evidence did not apply to Jones, and
the Government occasionally entered into stipulations to this effect.
Moreover, we hold that sufficient evidence existed to support an inde-
pendent finding of guilty.
Appellants' motion for a mistrial was based on the Government's
cross-examination of Sheriff Theodore McFarlin, in which Sheriff
McFarlin testified that one of Williams's attorneys talked to him
about plea bargaining. Appellants argue that this testimony violated
Fed. R. Crim. P. 11(e)(6) and Fed. R. Evid. 410. We disagree.
For statements to be protected under Fed. R. Crim. P. 11(e)(6) and
Fed. R. Evid. 410, they must be made by the defendant or his attorney
to a prosecuting attorney or someone with authority to enter plea
negotiations, and they must in fact be made in the course of plea
negotiations. United States v. Morgan, 91 F.3d 1193 (8th Cir. 1996);
United States v. Hare, 49 F.3d 447 (8th Cir.), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3246 (U.S. Oct. 2, 1995) (No. 95-5135); United
States v. Davidson, 768 F.2d 1266, 1270 (11th Cir. 1985); United
States v. Bernal, 719 F.2d 1475, 1478 (9th Cir. 1983).
In the present case, there was no evidence that the discussion
between Williams's attorney and Sheriff McFarlin rose to the level of
plea negotiations. There was no evidence that Williams was offering
to plead guilty, or that the discussion was initiated by Williams's
request or even with Williams's knowledge. Moreover, there was no
evidence that McFarlin had any authority to enter into plea negotia-
tions. Succinctly stated, the evidence on this issue, taken as a whole,
reflected that Williams's attorney was simply trying to see if the Sher-
iff's Office would be willing to recommend a more favorable forum
for the handling of Williams's case.
Finally, we hold that Appellants' contention that the Government
knowingly used perjured testimony is without merit. The law in this
circuit is that a "defendant seeking to vacate a conviction based on
perjured testimony must show that the testimony was, indeed, per-
jured." United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987).
Appellants fail to meet this burden.
Appellants make the conclusory argument that one of the Govern-
ment witnesses must have lied because the defense presented contra-
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dictory testimony, and they assert that another Government witness
must have lied simply because there was no evidence to corroborate
his testimony. We find these arguments unpersuasive. Moreover,
Appellants have failed to show any prejudice from the challenged tes-
timony. Williams was acquitted of three of the four counts which
directly related to the testimony, and we find that the testimony linked
to the fourth count was adequately supported by other evidence.
We therefore affirm the findings and sentence of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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