United States v. Marshall , 78 F. App'x 239 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4432
SCOTT MARSHALL,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-02-226)
Submitted: September 30, 2003
Decided: October 16, 2003
Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Charles R. Hamilton, CHARLES R. HAMILTON, ESQ., Charleston,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
R. Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MARSHALL
OPINION
PER CURIAM:
Following a jury trial, Scott Marshall was convicted on one count
of conspiracy to distribute more than five grams of cocaine base, in
violation of 21 U.S.C. § 846 (2000). The district court sentenced him
to 210 months in prison. Marshall timely appealed. Finding no merit
to his claims, we affirm.
At the trial, Marshall testified that he was in jail in Cabell County,
West Virginia, for several months during the course of the conspiracy
while he awaited trial on a malicious wounding charge stemming
from a bar fight. To impeach Marshall’s testimony, the government
introduced Government Exhibit 5, certified copies of Cabell County,
West Virginia, Magistrate Court records which showed that he spent
a much shorter amount of time in the jail than he had originally repre-
sented. Marshall contends that the district court erred by admitting
this exhibit because it was irrelevant, in that the government had
already introduced other testimony and evidence concerning the dura-
tion of Marshall’s time in the jail, and was highly prejudicial because
Exhibit 5 contained details of the malicious wounding charge.
Government Exhibit 5 was relevant in that it impeached Marshall’s
attempt at a partial alibi that he was incarcerated during several
months of the conspiracy. Fed. R. Evid. 401. Assuming arguendo that
the evidence was improperly admitted as unfairly prejudicial under
Rule 403 of the Federal Rules of Evidence, any error in admitting the
exhibit was mitigated by the testimony of both Marshall and a gov-
ernment witness that the malicious wounding charge against Marshall
had been dropped. Finally, this was not a close case. Absent Govern-
ment Exhibit 5, there was overwhelming evidence of Marshall’s guilt
on the drug conspiracy charge. We therefore find that any error in
admitting Government Exhibit 5 was harmless. United States v. Ince,
21 F.3d 576, 583 (4th Cir. 1994).
Next, Marshall argues that the district court erred by denying his
motion for judgment of acquittal, which he raised at the close of the
government’s case and again at the close of all evidence. Specifically,
Marshall argues that the evidence was insufficient to support his con-
UNITED STATES v. MARSHALL 3
viction because two of the three witnesses who testified about Mar-
shall’s drug trafficking activities during the time of the conspiracy
alleged in the indictment were not named as co-conspirators in the
indictment. However, there is no requirement that a conspiracy indict-
ment name all co-conspirators. United States v. Am. Waste Fibers
Co., 809 F.2d 1044, 1046 (4th Cir. 1987). Second, Marshall argues
that the testimony of the government witnesses was not credible.
However, this Court does not review the credibility of the witnesses
and assumes that the jury resolved all contradictions in the testimony
in favor of the government. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
Viewing the evidence in the light most favorable to the government,
we find that, in light of the overwhelming evidence of Marshall’s
involvement in the drug conspiracy, the district court did not err by
denying Marshall’s motions for judgment of acquittal. Glasser, 315
U.S. at 80.
Finally, Marshall challenges the district court’s refusal to make a
downward departure from the guidelines range. A district court’s
decision not to depart from the Sentencing Guidelines is not subject
to appellate review unless the refusal to depart is based on the mis-
taken belief that the court lacked the authority to depart. United States
v. Edwards, 188 F.3d 230, 238 (4th Cir. 1999); United States v. Wil-
kinson, 137 F.3d 214, 230 (4th Cir. 1998). Marshall argues that the
district court misunderstood its authority to depart under U.S. Sen-
tencing Guidelines Manual § 5K2.0 (2002) based on the totality of the
circumstances. A review of the sentencing hearing transcript reveals
that the district court’s refusal to depart downward was based on the
facts Marshall presented at the sentencing hearing and not on any
misapprehension of the law. The district court’s decision therefore is
not subject to appellate review.
For these reasons, Marshall’s conviction and sentence are affirmed.
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