United States v. Donald Ferebe ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4548
DONALD LEE FEREBE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CR-96-401)
Submitted: July 27, 1999
Decided: September 23, 1999
Before ERVIN,* WILKINS, and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Roland Walker, WALKER, VAN BAVEL, AMARAL & MEAD,
P.A., Baltimore, Maryland; Kreg Paul Greer, LAW OFFICES OF
KREG PAUL GREER, Bel Air, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, James G. Warwick, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
*Judge Ervin participated in this case but died prior to the time the
decision was filed. The decision is filed by a quorum of the panel pursu-
ant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury found Donald Lee Ferebe guilty of committing a violent
crime in the furtherance of racketeering activity, 18 U.S.C.A.
§ 1959(a)(1) (West Supp. 1999), and use of a firearm in the commis-
sion of a violent crime. On appeal, Ferebe alleges there was insuffi-
cient evidence to support his conviction under § 1959(a)(1). For the
reasons that follow, we affirm.
This court reviews challenges to the sufficiency of the evidence by
viewing the evidence at trial in the light most favorable to the prose-
cution, including all reasonable inferences that can be drawn from the
evidence. See Glasser v. United States, 315 U.S. 60, 80 (1942);
United States v. Russell, 971 F.2d 1098, 1109 (4th Cir. 1992). If sub-
stantial evidence exists to support the conviction, the verdict must be
sustained. See Glasser, 315 U.S. at 80. Additionally, this court does
not assess witness credibility on appeal. See Russell, 971 F.2d at
1109.
Ferebe alleges there was insufficient evidence to show he murdered
the victim to maintain or increase his position in the racketeering
enterprise, one of five elements** needed to support a § 1959 convic-
tion. Rather, he argues, that his acts toward the victim were "purely
impulsive."*** We disagree. Viewing the evidence as we must, the
_________________________________________________________________
**The elements of a § 1959 conviction are: (1) that the organization
was a Racketeer Influenced and Corrupt Organization (RICO) enterprise,
(2) that the enterprise was engaged in racketeering activity as defined in
RICO, (3) that the defendant in question had a position in the enterprise,
(4) that the defendant committed the alleged crime of violence, and (5)
that his general purpose in so doing was to maintain or increase his posi-
tion in the enterprise. See United States v. Fiel, 35 F.3d 997, 1003 (4th
Cir. 1994).
***Appellant's Br. at 12.
2
record reveals that Ferebe headed a drug organization which stored
drugs and distributed drugs to street level dealers out of a residence
located at 701 North Rose Street in Baltimore, Maryland. The day of
the murder, a "lieutenant" in the organization, Benjamin Paige, and
Ferebe fronted Richard "Skip" Thomas, Jr., some drugs.
Later that night, Thomas was chased into 701 North Rose by
another drug dealer, Eric "Erke" Cunion. Cunion stated that Thomas
owed him money for drugs and that if he was not paid he would "take
it out on the house."**** After Ferebe confirmed that Thomas also
owed Cunion money, Thomas was chased outside where Ferebe
fatally shot him. Based on this evidence, the jury could properly find
that Ferebe murdered Thomas to protect his drug enterprise against
the threats brought on by Thomas' conduct, and thus,"maintain his
position" as leader of the drug organization. See United States v.
Tipton, 90 F.3d 861, 891 (4th Cir. 1996). Enhancing or retaining his
position in the organization need not be Ferebe's only or primary
motive for the murder, as long as the jury could properly infer that
the defendant committed his violent act in furtherance of that mem-
bership. See id.; see also United States v. Concepcion, 983 F.2d 369,
381 (2d Cir. 1992).
Accordingly, we find Ferebe's issue on appeal unavailing, and
affirm his § 1959(a)(1) conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented
before the court and argument would not aid the decisional process.
AFFIRMED
_________________________________________________________________
****J.A. at 49.
3