United States v. Douglas ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                               No. 97-4919
    ANTONIO GERARDO DOUGLAS,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                               No. 97-4954
    WILLIAM LEE JOHNSON,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Leonie M. Brinkema, District Judge.
    (CR-97-184-A)
    Submitted: September 30, 1998
    Decided: October 16, 1998
    Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Joseph N. Bowman, Alexandria, Virginia; Richard Carnell Baker,
    LAW OFFICE OF RICHARD CARNELL BAKER, P.C., McLean,
    Virginia, for Appellants. Helen F. Fahey, United States Attorney, W.
    Neil Hammerstrom, Jr., Assistant United States Attorney, Alexandria,
    Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    In these consolidated appeals, Antonio G. Douglas and William
    Lee Johnson appeal their convictions for conspiracy to distribute fifty
    grams or more of cocaine base, in violation of 
    21 U.S.C. §§ 841
    (a)(1)
    & 846 (1994). Specifically, Douglas and Johnson contend that the
    evidence was insufficient to sustain their convictions. Viewing the
    evidence, and the inferences to be drawn therefrom, in the light most
    favorable to the Government,1 we hold that a rational juror could have
    found evidence sufficient to support the conspiracy convictions.
    Accordingly, we affirm.
    Between January 1995 and March 1996, members of a drug gang
    known as the "5-5 Crew" purchased and sold various quantities of
    crack cocaine at locations throughout Prince William County, Vir-
    ginia. The Government called numerous witnesses, most of whom
    were admitted drug dealers, who testified that Johnson regularly sup-
    plied members of the gang with distributable amounts of crack, and
    that Douglas was a member of the "5-5 Crew" who regularly pur-
    chased and sold cocaine. We address, in turn, the evidence adduced
    against Johnson and Douglas.
    With regard to Johnson, six Government witnesses identified him
    as a regular supplier of large amounts of crack cocaine. One of those
    witnesses, Michael Wilkins, an admitted member of the "5-5 Crew,"
    _________________________________________________________________
    1 See Evans v. United States, 
    504 U.S. 255
    , 257 (1992).
    2
    testified that, in the late summer of 1996, he would purchase crack
    cocaine from Johnson several times a week. On occasion, Douglas
    would accompany Wilkins to these drug sales. Wilkins would contact
    Johnson by calling Johnson's pager. To corroborate Wilkins' testi-
    mony, the Government introduced telephone toll records which
    revealed that, within a three-month period, Wilkins placed approxi-
    mately fifty-two calls from his cellular telephone to Johnson's pager.
    Daniel McMahan also corroborated Wilkins' testimony. McMahan
    stated that "[e]verybody used to page [Johnson] to get some `crack.'"2
    He further testified that Johnson would supply Douglas with crack
    cocaine, and that on several occasions, he purchased crack cocaine
    from Johnson through Douglas.
    In addition to Wilkins and McMahan, Government witnesses testi-
    fied that they knew Johnson by his nickname, "Red Man." Moreover,
    several independently established that Johnson drove a gray pickup
    truck and identified photographs of locations where Johnson distrib-
    uted crack cocaine.
    With regard to Douglas, three Government witnesses testified that
    they had personally observed Douglas selling cocaine on a regular
    basis. An additional four witnesses testified that they had sold Doug-
    las crack cocaine. Finally, the Government established that Douglas,
    in the presence of three law enforcement agents, had confessed to pur-
    chasing and selling crack cocaine. This confession identified the indi-
    viduals from whom Douglas purchased drugs, as well as the dates and
    locations of these purchases.
    The jury convicted Douglas and Johnson of conspiracy to distribute
    crack cocaine. The district court sentenced them to 360 months and
    292 months imprisonment, respectively. This appeal followed.
    Douglas and Johnson contest the sufficiency of the evidence to
    support their convictions. In reviewing the sufficiency of the evi-
    dence, "the relevant question is whether, after viewing the evidence
    in the light most favorable to the prosecution, any rational trier of fact
    _________________________________________________________________
    2 J.A. at 213.
    3
    could have found the essential elements of the crime beyond a reason-
    able doubt."3 The reviewing court "may not overturn a substantially
    supported verdict merely because it finds the verdict unpalatable or
    determines that another, reasonable verdict would be preferable."4
    Rather, "appellate reversal on grounds of insufficient evidence . . . [is]
    confined to cases where the prosecution's failure is clear."5 Applying
    these principles, we affirm Douglas' and Johnson's convictions.
    First, Douglas and Johnson claim that, despite a year-long investi-
    gation into the drug gangs' activities, the evidence which the Govern-
    ment relied upon in seeking their convictions was insubstantial. Both
    Douglas and Johnson note that investigators never recovered any
    crack cocaine from them, that they never participated in "controlled
    buys," and that there are no videotapes or audiotapes capturing their
    participation in drug transactions.
    While we agree with Douglas and Johnson that the Government's
    evidence in this case was largely circumstantial, that is in no way fatal
    to the Government's case. Rather, "a conspiracy generally is proved
    by circumstantial evidence and the context in which the circumstan-
    tial evidence is adduced. . . . Indeed, a conspiracy may be proved
    wholly by circumstantial evidence."6 Therefore, the fact that the Gov-
    ernment did not produce videotapes, audiotapes, drug money, or other
    _________________________________________________________________
    3 Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979) (citation omitted).
    4 United States v. Burgos, 
    94 F.3d 849
    , 862 (4th Cir. 1996) (in banc),
    cert. denied, ___ U.S. ___, 
    65 U.S.L.W. 3586
     (U.S. Feb. 24, 1997) (No.
    96-6868).
    5 Burks v. United States, 
    437 U.S. 1
    , 17 (1978) (footnote omitted).
    6 Burgos, 
    94 F.3d at 857-58
     (citations omitted).
    As we noted in Burgos, although circumstantial evidence can suffi-
    ciently support a conspiracy conviction, the Government must still prove
    each element of the crime charged beyond a reasonable doubt. 
    Id.
     John-
    son, in his pro se supplemental brief, argues that the Government proved
    only that he was a drug dealer, not that he was involved in a conspiracy
    to distribute crack cocaine. We disagree. Our reading of the record leads
    us to the conclusion that a wide-reaching conspiracy existed among the
    members of the "5-5 Crew," and that by virtue of his numerous crack
    cocaine sales to the gang members, Johnson participated in this conspir-
    acy.
    4
    tangible evidence does not necessarily result in a finding that a ratio-
    nal trier of fact could not have found Douglas and Johnson guilty of
    the conspiracy charges. Accordingly, we decline to disturb their con-
    victions on this ground.
    Second, Douglas and Johnson attack the credibility of the Govern-
    ment's witnesses. They correctly note that most of the Government's
    evidence consisted of testimony from convicted drug dealers, all of
    whom had received sentences of at least ten years. They are also cor-
    rect in noting that several of the Government's witnesses were alleged
    coconspirators who pled guilty to the conspiracy charges at issue in
    this case. However, Douglas and Johnson are incorrect in stating that
    we should reverse their convictions because the Government "pur-
    chased the testimony of these witnesses"7 and that these witnesses
    "were at the complete mercy of the government prosecutors."8
    We have held that "determinations of credibility`are within the
    sole province of the jury and are not susceptible to judicial review.'"9
    Further, a conspiracy conviction may be predicated on even the
    uncorroborated testimony of an accomplice.10 In the instant case, the
    Government's witnesses were placed before the jury"with all their
    foibles exposed -- their felony records, their drug use, [and] their
    incentives to earn a sentence reduction."11 Ultimately, the jury was
    responsible for assessing the credibility of these witnesses. Therefore,
    we will not disturb the convictions on this ground.
    Finally, Douglas contends that he never confessed to investigators
    that he sold or purchased drugs. To support his argument, he attacks
    the credibility of the two investigators who testified as to the confes-
    _________________________________________________________________
    7 Appellant's Br. at 11.
    8 Id. at 12.
    9 Burgos, 
    94 F.3d at 863
     (quoting United States v. Lowe, 
    65 F.3d 1137
    ,
    1142 (4th Cir. 1995)).
    10 See United States v. Figurski , 
    545 F.2d 389
    , 392 (4th Cir. 1976); see
    generally United States v. Rose, 
    12 F.3d 1414
    , 1425 (7th Cir. 1994) (not-
    ing that witnesses in criminal cases are frequently participants in the
    crimes at issue, and it is for the jury to decide their credibility).
    11 Appellee's Br. at 20-21.
    5
    sion. We reject this argument because, as stated above, such credibil-
    ity determinations are strictly a matter for the jury. Accordingly, we
    decline to disturb Douglas' conviction on this ground.
    We affirm Douglas' and Johnson's conspiracy convictions. We
    grant Johnson's motion to file a pro se supplemental brief, but find
    that the issues he raises therein are without merit. We dispense with
    oral argument because the facts and legal contentions are adequately
    presented in the materials before the court and argument would not
    aid the decisional process.
    AFFIRMED
    6