United States v. Williams ( 1998 )

Filed: March 18, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 96-4648(L)
(CR-95-193)
United States of America,
Plaintiff - Appellee,
versus
Demetrius Marcus Williams, etc., et al,
Defendants - Appellants.
O R D E R
The Court amends its opinion filed March 5, 1998, as follows:
On page 2, section 1 -- the appellant's name is corrected to
read "ROBERT LEE WINFIELD, JR., a/k/a Tubbs."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4648
DEMETRIUS MARCUS WILLIAMS, a/k/a
Meat,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4649
LORENZO LEE WINFIELD, a/k/a Geek,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4650
TAUBARI OLANYAN LATSON, a/k/a
Tabar,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4651
JOHN LEE COBBS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4652
ROBERT LEE WINFIELD, JR., a/k/a
Tubbs,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert E. Payne, District Judge.
(CR-95-193)
Argued: August 14, 1997
Decided: March 5, 1998
Before RUSSELL,* Circuit Judge, HALL, Senior Circuit Judge, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
Norfolk, Virginia; Robert Bryan Rigney, KNIGHT, DUDLEY,
CLARKE & DOLPH, P.L.C., Norfolk, Virginia; Richard William
Zahn, Jr., TAYLOR & WALKER, P.C., Norfolk, Virginia, for Appel-
_________________________________________________________________
* Judge Russell heard oral argument in these cases but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d).
2
lants. Laura P. Tayman, Assistant United States Attorney, Norfolk,
Virginia, for Appellee. ON BRIEF: Keith L. Kimball, SYKES,
CARNES, BOURDON, AHERN & SHAPIRO, Virginia Beach, Vir-
ginia, for Appellant Latson; George A. DuBois, FEDERAL PUBLIC
DEFENDER'S OFFICE, Raleigh, North Carolina, for Appellant
Cobbs.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This case arises out of a cocaine-base conspiracy operating in
Portsmouth, Virginia between 1993 and 1995. A group of individuals
selling crack cocaine in the River's Edge apartment complex worked
as a coherent unit throughout this time. The group sold drugs in the
same general area, deferred to each other when dealing with regular
customers, and referred customers to each other when out of crack
cocaine. The group also worked together to discourage other dealers,
to threaten customers who failed to pay drug debts, and to punish cus-
tomers with whom they had disputes. During the operational years of
the conspiracy, the group was responsible for the shooting of at least
six people, three of whom died of their wounds. Appellants were
indicted in the District Court for the Eastern District of Virginia for
participation in and various offenses arising out of this conspiracy.
At trial, a jury convicted Robert Winfield of participation in a con-
tinuing criminal enterprise, murder and attempted murder during the
course of the continuing criminal enterprise, conspiracy to distribute
cocaine base, and other offenses related to the use of firearms and
cocaine base trafficking. The jury convicted Demetrius Marcus Wil-
liams, Lorenzo Lee Winfield, Taubari Olanyan Latson, and John Lee
Cobbs of conspiring with Robert Winfield and each other to traffic in
cocaine base. The jury also convicted Demetrius Williams on two
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counts of distribution of cocaine base; Taubari Latson and Lorenzo
Winfield of using and/or carrying a firearm during and in relation to
a drug trafficking offense; John Cobbs of a crime of violence, namely
the attempted murder of Darwin Eady, and of possession of cocaine
with intent to distribute. The trial court sentenced Demetrius Williams
and Lorenzo Winfield each to terms of imprisonment of 425 months,
in total. The court sentenced Taubari Latson, John Cobbs, and Robert
Winfield to life imprisonment with consecutive terms imposed for the
firearms convictions. Demetrius Marcus Williams, Lorenzo Lee Win-
field, Taubari Olanyan Latson, John Lee Cobbs, and Robert Winfield
now appeal their convictions. Defendant Latson appeals his sentence
as well.
Defendant Robert Winfield argues that the trial erred in admitting
evidence of the November 4, 1993, murder of William Bales by Rob-
ert Winfield. We review assertions of evidentiary error on the part of
the district court for abuse of discretion. United States v. Queen, 1997
WL 790470, *3 (4th Cir.); United States v. Greenwood, 796 F.2d 49,
53 (4th Cir. 1986). In order to prove a continuing criminal enterprise
under 21 U.S.C. § 848, the United States must demonstrate a continu-
ing series of narcotics violations "undertaken ... in concert with five
or more persons with respect to whom such person occupies a posi-
tion of organizer, a supervisory position, or any other position of
management." (West 1997).
The district court admitted the evidence of the murder of William
Bales for the purpose of demonstrating the leadership role of Robert
Winfield in a continuing criminal enterprise and instructed the jury
that the evidence of the murder was only to be considered as proba-
tive of the continuing criminal enterprise charge. The murder
occurred in a public space in the presence of several witnesses, one
of whom, Desmond Corbett, testified that the murder drew the River's
Edge group closer than before. The evidence of the murder and its
effect on the members of the conspiracy and how they viewed Robert
Winfield is relevant to the issue of whether or not Robert Winfield
operated in a leadership role in the conspiracy. The trial court did not
abuse its discretion in admitting, with proper limiting instructions, the
evidence of the murder of William Bales.
Appellant Latson objects that his sentence was improperly
enhanced for two prior state felony drug convictions because the con-
4
victions were not final before the commission of the instant offense
as required by Section 841(b)(1)(A) of Title 21 of the United States
Code and because one of the convictions is related to the instant con-
spiracy.
We review statutory interpretation de novo. United States v. Phan,
121 F.3d 149, 153 (4th Cir. 1997); United States v. Singh, 54 F.3d
1182, 1189 (4th Cir. 1995). We review factual determinations in sen-
tencing only for clear error. 18 U.S.C. § 3742(d). See United States
v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995).
Section 841(b)(1)(A) states, "If any person commits a violation of
this subparagraph or of section 849, 859, 860, 861 of this title after
two or more prior convictions for felony drug offense have become
final, such person shall be sentenced to a mandatory term of life
imprisonment without release and fined in accordance with the pre-
ceding sentence." (West 1997). A conviction is final and, therefore,
becomes a factor for a sentencing enhancement, when all avenues of
direct appellate review have been exhausted. See United States v.
Campbell, 980 F.2d 245, 251 n. 9 (4th Cir. 1992); United States v.
Morales, 854 F.2d 65, 69 (5th Cir. 1988).1 Under Virginia law, a con-
viction is final thirty days after entry of the judgment of conviction.
Id.If the defendant ceased participation in the instant conspiracy
before a felony conviction became final, that conviction should not be
used for enhancement in the instant case. See, e.g., 21 U.S.C.
§ 841(b)(1)(A). Defendant Latson argues that one of the two prior fel-
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1 "The Third, Fifth, Ninth and Eleventh Circuits have ruled that the
final conviction language of section 841 applies to convictions that are
`no longer subject to examination on direct appeal, including an applica-
tion for certiorari to the United States Supreme Court, either because of
disposition on appeal and conclusion of the appellate process, or because
of the passage, without action, of the time for seeking appellate review.'
Morales, 854 F.2d 65, 69. ... Virginia Supreme Court Rule 5A:6(a) pro-
vides: `No appeal shall be allowed unless, within 30 days after entry of
final judgment or other appealable order or decree, counsel files with the
clerk of the trial court a notice of appeal....'" Campbell, supra, 980 F.2d
at 251.
5
ony drug convictions used by the court to enhance Latson's sentence
did not become final until after the defendant's participation in the
conspiracy ceased. However, a defendant is presumed to remain a
participant of a conspiracy until that defendant takes affirmative
action to withdraw from the conspiracy. See Hyde v. United States,
225 U.S. 347, 369-70 (1912); United States v. Sheffer, 896 F.2d 842,
844 (4th Cir. 1990); United States v. Leavis, 853 F.2d 215, 218 (4th
Cir. 1988). United States v. Walker explains:
A mere cessation of activity in furtherance of the conspiracy
is insufficient. United States v. Goldberg, 401 F.2d 644, 648
(2d Cir.1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21
L.Ed.2d 790 (1969). The defendant must show affirmative
acts inconsistent with the object of the conspiracy and com-
municated in a manner reasonably calculated to reach his
co-conspirators. United States v. United States Gypsum Co.,
438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d
854 (1978). The burden of proving withdrawal rests on the
defendant. United States v. Gillen, 599 F.2d 541, 548 (3d
Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d
89 (1979).
796 F.2d 43, 49 (4th Cir. 1986). Thus, the burden rests on defendant
Latson to show a withdrawal from the instant conspiracy before the
conviction became final.
The district court found that appellant continued active participa-
tion in the conspiracy until his incarceration. Testimony of several
witnesses at trial indicated the defendant's continuous participation in
the conspiracy until incarceration and the defendant offers no evi-
dence of an affirmative action that he took to withdraw from the con-
spiracy. Defendant failed to controvert the evidence of the United
States and to meet his burden of proof. We find no clear error in the
district court's determination that Defendant Latson did not cease par-
ticipation in the conspiracy until his incarceration on April 3, 1995.
Defendant Latson thus had two final drug felony convictions as of
the date of termination of his participation in the instant conspiracy.2
_________________________________________________________________
2 The district court properly did not consider a third felony drug convic-
tion for which the defendant was sentenced on 25 May 1995, at which
point the defendant's participation in the conspiracy had ceased.
6
On January 9, 1995, the state court entered two judgment orders sen-
tencing the defendant in two separate cases for felony drug convic-
tions in state court. The convictions became final thirty (30) days
later, on February 10, 1995. Therefore, we find no error in the district
court's determination that the defendant committed the instant offense
after two prior felony drug convictions and the court's application of
the enhancement required by 21 U.S.C. § 841.
Defendant Latson's allegation of error based on the fact that one
of the offenses for which he had previously been convicted was part
of the instant offense also fails to persuade. The Fourth Circuit has
expressly sanctioned the use of a prior offense both as part of the fed-
eral conspiracy offense and as a sentencing enhancement. See United
States v. Ambers, 85 F.3d 173, 177-78 (4th Cir. 1996).
All of the appellants appeal their convictions for conspiracy to dis-
tribute cocaine base, arguing that the conviction was not supported by
sufficient evidence. Jackson v. Virginia instructs that a conviction
should be upheld if "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
443 U.S. 307, 318 (1979). The testimonial and other evidence
adduced at the trial sufficiently established a basis on which the jury
could have rationally determined that the defendants were guilty of a
conspiracy. A conspiracy may exist in "a loosely-knit association of
members linked only by their mutual interest in sustaining the overall
enterprise or catering to the ultimate demands of a particular drug
consumption market." United States v. Banks, 10 F.3d 1044, 1054
(4th Cir. 1993). The evidence in the instant case indicated a close
interaction between the participants. They prepared the cocaine base
for street sale in the same locations, deferred and referred customers
to each other while selling, and behaved as a group in defending the
prominence of the group in the River's Edge neighborhood. The
defendants' conclusory statements that multiple conspiracies were
proven by the defense finds no support in the record at trial. We,
therefore, uphold the convictions of all of the defendants for a single
conspiracy to distribute crack cocaine.
Defendants Lorenzo Winfield and Taubari Latson also object that
there was insufficient evidence at trial to support their conviction for
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use of a firearm in relation to drug trafficking. Section 924(c) of Title
18 of the United States Code provides, "Whoever, during and in rela-
tion to any ... drug trafficking crime (including a crime of violence or
drug trafficking crime which provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for
which he may be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime, be sentenced to
imprisonment for five years." (West 1997). The conviction under 18
U.S.C. § 924(c) was based primarily on the testimony of Mr. Robert
Hendrix. Defendants argue that the witness was so unreliable that his
testimony must be dismissed as a matter of law, and defendants' con-
victions along with it. However, as the case cited by the defendants
themselves states, "The testimony of one eyewitness, even if he is a
member of the criminal class and has no intrinsic credibility, is
enough to convict in the absence of contrary evidence." United States
v. Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985). The task of assess-
ing the credibility of Mr. Hendrix lay with the jury, not with the court.
United States v. Johnson, 55 F.3d 976, 979 (4th Cir. 1995). The deci-
sion of the jury is supported by sufficient evidence. The convictions
of Messrs. Lorenzo Winfield and Taubari Latson for use of a firearm
in connection with a drug trafficking offense, 18 U.S.C. § 924(c), are
upheld.
The court has considered the other issues raised by the appellants
and finds them to be without merit. Accordingly, for the aforemen-
tioned reasons, the district court's order will be affirmed in its
entirety.
AFFIRMED
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