United States v. Marshall ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4414
JOHN MARSHALL,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4518
DANIEL SALEH,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-28)
Submitted: January 14, 1997
Decided: April 17, 1997
Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Alan G. McGonigal, BAILEY, RILEY, BUCH & HARMAN, L.C.,
Wheeling, West Virginia; William C. Gallagher, CASSIDY, MYERS,
COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia,
for Appellants. Paul T. Camilletti, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellants John Marshall and Daniel Saleh were indicted and con-
victed by a jury of conspiracy to possess with intent to distribute mar-
ijuana in violation of 21 U.S.C. § 846 (1994). Marshall and Saleh
received a sentence of twenty-four months and twenty-one months,
respectively. Both Marshall and Saleh appeal their convictions. The
two cases have been consolidated for appellate review.
Marshall contends that the district court erred in denying his
motion for a new trial, excluding relevant expert testimony, and in
denying a two-level reduction in his sentence for being a "minor par-
ticipant." Saleh asserts that the district court erred in denying his
motions for judgment of acquittal and variance between the indict-
ment and proof at trial. Additionally, Saleh maintains that the court
improperly attributed to him under "relevant conduct" certain drug
quantities associated with co-defendant Marshall. We affirm both
convictions and sentences.
I.
The evidence at trial, viewed in the light most favorable to the gov-
ernment, disclosed that Tony Foglio, the government's chief witness,
was involved in a drug-trafficking scheme whereby he received ship-
ments of marijuana from California and distributed the drugs at a
profit in West Virginia. Foglio testified that on three occasions Saleh
provided Foglio a key to a vacant residence for the purpose of receiv-
2
ing marijuana shipments. Saleh then took Foglio to a nearby motel,
where Saleh registered in his name on Foglio's behalf, all in exchange
for monetary compensation. From the motel, Foglio broke down the
shipment of compressed marijuana and negotiated sales. Foglio
admitted that he and Saleh did not discuss the packages. The first
shipment contained approximately four kilograms of marijuana, the
second four or five kilograms, and the third approximately six kilo-
grams.
Foglio further testified that Saleh also drove Foglio to Pittsburgh
to a "head shop" to buy a scale that could weigh large amounts of
marijuana. According to Foglio, Saleh was aware of the express pur-
pose of the trip. On another occasion, Saleh also transferred $6200 in
cash via Western Union to Foglio's supplier in California because
Foglio wanted to keep his name "out of things." In return, Saleh
received further monetary compensation.
Saleh introduced Foglio to Marshall in an effort to assist Foglio
with transportation. According to Foglio, Marshall, on at least two
occasions, rented a car in his own name on behalf of Foglio in
exchange for cash. Additionally, Marshall offered his place of resi-
dence for the receipt of packages for a monetary fee. The first ship-
ment to Marshall's residence contained approximately six to seven
kilograms of marijuana. Foglio arrived after delivery of the package
and opened it in Marshall's presence. Foglio remarked that Marshall
was surprised at the amount of marijuana present. Soon thereafter,
both men drove to a hotel, where Marshall registered under his name,
another service for which he received compensation. Foglio main-
tained at trial that the purpose of renting the room was to "break
down" the marijuana and place phone calls to let others know that he
was "ready to do business again." Two more shipments were received
at Marshall's residence. The three shipments totalled nineteen kilo-
grams.
Following the return of guilty verdicts on the conspiracy charge, a
presentence report was prepared for Marshall, which assigned him a
base offense level of sixteen. See USSG§ 2D1.1(c)(12). The court
sentenced Marshall in accordance with the report, denying Marshall's
motion for a two-level reduction based on his role as a "minor partici-
pant." The court attributed Saleh with thirty-four kilograms of mari-
3
juana, nineteen of which the court assessed against him under relevant
conduct. Although the court assigned Saleh a base offense level of
eighteen, the court gave Saleh a two-level reduction for his role as a
"minor participant" in the conspiracy.
We address each of Appellants' arguments in turn.
II.
Marshall first objects to the court's refusal to grant him a new trial
on the basis that evidence weighed heavily against the verdict.1 Spe-
cifically, Marshall alleges that the exhibits introduced into evidence
by the Government alone are insufficient to sustain a verdict against
him and that the only incriminating evidence came from an incredible
witness.
This Court reviews the denial of a motion for new trial for abuse
of discretion. United States v. Campbell, 977 F.2d 854, 860 (4th Cir.
1992). A district court should grant a new trial if the evidence weighs
so heavily against the verdict that it would be unjust to enter judge-
ment. United States v. Arrington, 757 F.2d 1484, 1485 (1985).
To sustain a conspiracy conviction, the evidence must show only
that the defendant knew of the conspiracy's purpose and took some
action reflecting his participation. United States v. Locklear, 24 F.3d
641, 644 (4th Cir. 1994); United States v. Brooks, 957 F.2d 1138,
1147 (4th Cir. 1992). The Government may use circumstantial evi-
dence to demonstrate a defendant's participation in a conspiracy and
his knowledge of the conspiracy's objectives. United States v.
Glasser, 315 U.S. 60, 80 (1942). If the defendant "joins the conspir-
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1 In its brief, the Government contends that Marshall is procedurally
barred from contesting the court's denial of Marshall's motion for a new
trial on the basis of insufficient evidence because, in his motion, he only
seeks a judgment of acquittal in challenging the sufficiency of evidence.
However, the motion generally sought "Judgment of Acquittal and/or
New Trial," and the memorandum in support of his motion, which the
district court reviewed, specifically sought a new trial as an alternative
to a judgment of acquittal. Therefore, we find that the merits of Mar-
shall's claim are properly before this Court.
4
acy with an understanding of the unlawful nature thereof and willfully
joins in the plan on one occasion, it is sufficient to convict him of
conspiracy." United States v. Bell, 954 F.2d 232, 236 (4th Cir. 1992).
In this case, the Government offered ample evidence that a conspir-
acy existed, and that Marshall knew about it and acted to further it.
Foglio testified that Marshall rented vehicles and motel rooms on his
behalf and on several occasions agreed to receive packages at his resi-
dence. Even assuming Marshall did not initially know the contents of
the packages he received, Foglio testified that he opened the package
in Marshall's presence more than once and that Marshall was sur-
prised at the quantity of marijuana. The Government introduced
exhibits of car rental, shipment, and motel registration records in Mar-
shall's name, generally consistent with Foglio's recitation of events.
To the extent that Marshall's claim regarding the sufficiency of
evidence relates solely to matters of Foglio's credibility, such deter-
minations are within the sole province of the jury and are not suscep-
tible to judicial review. United States v. Lowe , 65 F.3d 1137, 1142
(4th Cir. 1995), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3231 (U.S.
Oct. 7, 1996) (No. 95-1659). Accordingly, we find that the court did
not err in denying Marshall's motion for a new trial.
Marshall also contends that the trial court erred in excluding the
expert testimony of H. Wayne Dickson, a certified addictions coun-
selor, who would have testified regarding the effects of heavy and
sustained drug use on an individual's memory and perception of
events that occurred during the period of drug use. Marshall offered
such testimony in an effort to impeach Foglio, who allegedly used
drugs heavily during the period in question.
An expert may only testify about "scientific, technical, or other
specialized knowledge" that "will assist the trier of fact to understand
the evidence or to determine a fact in issue." Fed. R. Evid. 702. Under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
in order for such expert testimony to be properly admitted under the
Rules, the expert testimony must be supported by appropriate valida-
tion and it must assist the trier of fact in understanding the evidence
or in determining a fact in issue. See United States v. Dorsey, 45 F.3d
5809, 813 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3907(U.S. June 26, 1995) (No. 94-9433).
We find that the court properly refused to admit the proffered
expert testimony because it clearly fails to meet the second part of the
Daubert test. To satisfy Daubert's second prong, the proffered evi-
dence must fall outside the common knowledge of jurors. Dorsey, 45
F.3d at 814-15. Here, assessing the impact of drug use on a witness'
credibility is something that can sufficiently be done by the jury with-
out help from an expert. See id. at 815. Therefore, the trial court prop-
erly excluded the proffered testimony.
Lastly, Marshall argues that he should have received a reduction in
his offense level for being a "minor participant" as defined by USSG
§ 3B1.2. A defendant seeking a mitigating adjustment under § 3B1.2
must convince the district court of its application by a preponderance
of the evidence. United States v. Palinkas, 938 F.2d 456, 460 (4th Cir.
1991). The critical inquiry is not just whether the defendant has done
fewer "bad acts" than his codefendants, but whether the defendant's
conduct is material or essential to committing the offense. Id. Appel-
late review of a district court determination regarding the defendant's
role in the offense is governed by the clearly erroneous standard.
United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).
While Marshall may have been less culpable than others in the con-
spiracy, his acts in furtherance thereof were material and substantial.
The evidence revealed that Marshall provided great assistance to
Foglio by receiving shipments on his behalf knowing that they con-
tained marijuana and by securing transportation and lodging for drug
distribution activity.
Marshall argues that because co-defendant Saleh received a two-
level reduction for his role as a "minor participant" and because they
are equally culpable, he too should have received a similar reduction.
The record reflects that Saleh was held responsible under "relevant
conduct" for six shipments (thirty-four kilograms), only three of
which he was directly responsible. Marshall, however, was held liable
for only those shipments (nineteen kilograms) directly related to his
own actions. Given the greater amount of marijuana attributed to
Saleh as relevant conduct, the court, agreeing with the probation offi-
6
cer, concluded that a minor role reduction for Saleh was appropriate.
Under such circumstances, the court's decision to refuse a reduction
in Marshall's sentence as a "minor participant" is not clearly errone-
ous.
III.
Saleh maintains that the court erroneously denied his motion for
judgment of acquittal. This Court reviews a denial of a motion for
acquittal under a sufficiency of the evidence standard. Fed. R. Crim.
P. 29; see United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.
1992). To sustain a conviction the evidence when viewed in the light
most favorable to the government, must be sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt. United States v. Brewer, 1 F.3d 1430, 1437 (4th
Cir. 1993); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
Court does not weigh the evidence or review credibility of witnesses
in resolving issues of substantial evidence. United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989).
The evidence discloses that on three occasions, Saleh provided
Foglio keys to his vacant home to receive packages in exchange for
$200. Additionally, Saleh registered for Foglio at a motel in exchange
for $30 after Foglio received the first package, drove Foglio to a
"head shop" for the purpose of purchasing digital scales, transferred
large amounts of cash to Foglio's cousin in California, and introduced
Foglio to Marshall. We find that the Government introduced suffi-
cient evidence from which a rational trier of fact could conclude that
Saleh knew of the conspiracy's purpose and actively participated in
it.
Saleh also contends that the amount of marijuana attributed to him
should have been limited to the amount stated in the bill of particulars.2
Because the bill of particulars only attribute to Saleh two marijuana
shipments, totalling nine kilograms, rather than the three for which he
was ultimately held responsible, Saleh maintains that his ultimate
_________________________________________________________________
2 Although Saleh claims a variance between the indictment and proof
at trial, his argument in fact relates to a variance between proof at trial
and the bill of particulars.
7
conviction exceeds the amount of punishment to which he was placed
on notice.
The purpose of a bill of particulars is to fairly apprise the defendant
of the charges against him so that he may adequately prepare a
defense and avoid surprise at trial, not to provide detailed disclosure
of the Government's evidence in advance of trial. United States v.
Fletcher, 74 F.3d 49, 53 (4th Cir.), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9447). A bill of particu-
lars does not constitute a part of the indictment nor does it change or
amend the charges set forth in the indictment; it"merely amplifies the
indictment by providing missing or additional information so that the
defendant can effectively prepare for trial." Id. Moreover, "the quan-
tity of drugs involved in an offense does not become a substantive
element of the crime to be proved at trial simply because an amount
is indicated in the indictment or information." Id.Saleh's contention that the bill of particulars failed to sufficiently
apprise him of the extent of his charges is without merit. Under sec-
tions l, m, and n of "overt acts," the indictment specifically charges
Saleh with receiving three shipments of marijuana from California.
While the bill of particulars may not have specified the third ship-
ment of marijuana that Saleh received, it is clear that the indictment
sufficiently placed Saleh on notice that the Government intended to
present evidence at trial regarding the third shipment. Hence, because
Saleh was not convicted of an offense omitted from the indictment
and there is no evidence of unfair surprise which prevented him from
preparing an adequate defense, any discrepancy between the bill and
the Government's proof at trial was harmless. Fletcher, 74 F.3d at 53-
54. Accordingly, the court properly denied Saleh's motion for a vari-
ance.
Lastly, Saleh alleges that the court erred in attributing to him as rel-
evant conduct the nineteen kilograms of marijuana that were shipped
to co-defendant Marshall. Essentially, Saleh maintains that the Gov-
ernment failed to prove that Marshall's involvement in drug distribu-
tion activity was a reasonably foreseeable consequence of Saleh's
introduction of Marshall to Foglio.
8
In a conspiracy, relevant conduct includes all acts committed by
the defendant and others which are in furtherance of the conspiracy,
reasonably foreseeable to the defendant, and within the scope of the
criminal activity the defendant agreed to undertake. USSG
§ 1B1.3(a). The government must establish the existence of these
other incidents by a preponderance of the evidence. United States v.
Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). Whether the government
has successfully shouldered its burden of proof is a question of fact
reviewed for clear error. Id.In the instant case, the district court found that Saleh was aware of
and actively participated in the conspiracy and encouraged Marshall's
involvement as a co-conspirator. Given Saleh's repeated involvement
with Foglio and his introduction of Foglio to Marshall for the pur-
poses of aiding Foglio in various drug distribution activities, we hold
that the district court did not err in attributing to Saleh for sentencing
purposes the nineteen kilograms of marijuana associated with Mar-
shall.
Accordingly, we affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
9