United States v. Spencer ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4278
ROBERT LEE SPENCER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-95-171)
Submitted: June 24, 1997
Decided: July 16, 1997
Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
John Laishley, Huntington, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, Margaret A. Hickey, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Lee Spencer appeals from his convictions on one count of
conspiracy to distribute and possess with intent to distribute hydro-
morphone ("dilaudid") in violation of 21 U.S.C. § 846 (1994), and
three counts of distribution of dilaudid in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1981 & Supp. 1997). We find no merit to his
claims; consequently, we affirm.
I
Spencer's first claim is that the district court violated his Sixth
Amendment right to confront witnesses by allowing the government
to introduce hearsay testimony through Carolyn Ash. Ash testified
that she delivered drugs to Tammy Adkins and that she saw Adkins
take those drugs into a building identified during the trial as Spencer's
apartment building and then come back with money and other drugs.
Spencer contends that Ash gave hearsay testimony concerning
Tammy Adkins. However, Ash testified only about Adkins' actions--
not her statements--and the government's two attempts to elicit hear-
say testimony from Ash were disallowed by the court. Therefore,
Ash's testimony did not violate Spencer's Sixth Amendment rights.
II
Next Spencer claims that the district court erred by not granting his
motion for judgment of acquittal as to Count One, conspiracy to dis-
tribute and possess with intent to distribute dilaudid. To prove a drug
conspiracy, the prosecution must show: "(1) an agreement to possess
[the drugs] with intent to distribute existed between two or more per-
sons; (2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy." United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (in banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868). Each defendant need not know the details of the conspira-
cy's structure and organization or the identities of every conspirator.
Id. at 858. "[A] loosely-knit association of members linked only by
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their mutual interest in sustaining the overall enterprise of catering to
the ultimate demands of a particular drug consumption market" may
be sufficient to establish the existence of a conspiracy. United States
v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). Once the existence of
a conspiracy is established, only a slight link between a defendant and
the conspiracy is needed to support a conviction. See United States v.
Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992).
Here, the government presented both direct and circumstantial evi-
dence of Spencer's participation in a dilaudid distribution conspiracy.
Carolyn Ash testified that she sold drugs to Tammy Adkins and saw
Adkins take the drugs to what was identified at trial as Spencer's
apartment building, and that Adkins returned from the building with
cash for Ash and dilaudid for herself. The government also presented
recordings of Spencer selling dilaudid to a confidential informant, and
the informant testified about the recorded transactions. Two other wit-
nesses testified that on several occasions they went to Spencer's
apartment and bought dilaudid. Viewing this evidence in the light
most favorable to the government, the evidence was sufficient for a
jury to find beyond a reasonable doubt that Spencer was engaged in
a conspiracy to distribute and possess with intent to distribute
dilaudid. See United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.
1993).
III
Spencer filed a motion to recuse the district court judge on the
grounds that the judge had been named as a party in a 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1997) action where he asked for dam-
ages, and that the judge remarked before trial that Spencer had filed
several habeas actions. The judge assured Spencer that he had not
even realized that Spencer had named him as a party to an action for
damages and that this lawsuit would have no bearing on his trial, and
Spencer expressed his satisfaction that this was true. The judge also
said he merely was stating a fact when he commented about Spen-
cer's prior filings. Spencer subsequently withdrew the recusal motion.
He now argues that the district court erred by failing to recuse itself
pursuant to 28 U.S.C. §§ 144, 455 (1994), after the motion for recusal
was withdrawn. Because he withdrew his motion for recusal, how-
ever, he waived his right to assert that claim on appeal. Moreover, the
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judge's failure to recuse himself did not amount to plain error. See
United States v. Johnson, ___ U.S. #6D6D 6D#, ___, 65 U.S.L.W. 4305, 4307
(U.S. May 12, 1997) (No. 96-203).
IV
During closing arguments, defense counsel said that he failed to
ask the witnesses who testified that they had purchased drugs from
Spencer whether they knew each other and that he wondered what
their answers would have been. The government responded in rebuttal
that the defense attorney deliberately chose not to ask those questions
because he did not want to know the answers. Spencer claims that the
prosecutor's statement amounts to prosecutorial misconduct because
the prosecutor attempted to discredit his attorney's argument by sug-
gesting to the jurors that he had deceived them with his remarks.
This court has established a two-prong test for assessing prosecu-
torial misconduct: "(1) whether the prosecutor's remarks or conduct
was [sic] improper, and (2) whether such remarks or conduct prejudi-
cially affected the defendant's substantial rights so as to deprive [him]
of a fair trial." United States v. Francisco , 35 F.3d 116, 120 (4th Cir.
1994). Because defense counsel failed to raise objections at trial to the
prosecutor's remarks, this court will vacate Spencer's conviction only
if the remarks constituted plain error. See United States v. Mitchell,
1 F.3d 235, 239 (4th Cir. 1993).
Defense counsel invited comment when he told the jury that he for-
got to ask some questions and that he wondered what the witnesses'
answers would have been. Moreover, even if the prosecutor's state-
ments were improper, they did not undermine the fairness of the trial
and lead to a fundamental miscarriage of justice because there was
substantial evidence establishing Spencer's guilt. We find therefore
that the prosecutor's remarks did not amount to plain error.
V
For these reasons, we affirm Spencer's convictions. 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
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