United States v. Bradley ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4138
ANTHONY G. BRADLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-96-149)
Submitted: September 8, 1998
Decided: October 6, 1998
Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William R. Wooton, Beckley, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, John L. File, 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Unpublished opinions are not binding precedent in this circuit.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:
A jury convicted Anthony G. Bradley of conspiracy to distribute
and possess with the intent to distribute cocaine base and aiding and
abetting the distribution of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994). The district court sentenced Bradley to a
135-month prison term to be followed by eight years of supervised
release. Bradley appeals his convictions and sentence, challenging a
reasonable doubt instruction given by the court after defense coun-
sel's closing argument, as well as certain evidentiary rulings, the suf-
ficiency of the evidence, and the amount of drugs attributable to him.
Finding no reversible error, we affirm.
I.
Taking the evidence in the light most favorable to the government,
see Glasser v. United States, 315 U.S. 60, 80 (1942), testimony at trial
disclosed that a drug task force in Beckley, West Virginia, used a con-
fidential informant to purchase crack cocaine from Bradley and Paul
Lassinger, Bradley's co-defendant. The informant contacted Lass-
inger at his place of employment, a restaurant in the Beckley area.
Lassinger then attempted to contact his supplier, but the transaction
was not completed.
The next day, the task force provided the informant with $200 in
marked bills to buy crack cocaine. The informant met with Lassinger
at the restaurant and told him he had the money to purchase the drugs.
After Lassinger called his supplier on a cellular telephone, Lassinger
took the money. A short while later, officers saw Bradley drive into
the restaurant parking lot where Lassigner met him and made an
exchange. Lassinger reentered the restaurant and gave the informant
crack cocaine.
As Bradley left the parking lot, officers approached him in an
unmarked car while other officers exited their vehicles and identified
themselves as law enforcement officers. Bradley sped off, forcing one
officer to the ground. After a brief, high-speed chase, Bradley lost
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control of his car. As he fled on foot, Bradley threw things from his
pockets. Officers apprehended Bradley and discovered $1746 in cash
(including the $200 in marked bills provided to the informant to pur-
chase crack) on the ground where Bradley had run.
At the conclusion of the evidence, the court instructed the jury that
"the burden of proof is upon the Government to establish . . . that the
defendant . . . [is] guilty of the commission of the crime beyond a rea-
sonable doubt." J.A. 343. During closing argument, however, Brad-
ley's counsel told the jury on numerous occasions that the
Government had to prove Bradley's guilt "beyond all reasonable
doubt." J.A. 357. After a sidebar with counsel, the court reiterated the
burden of proof to the jury:
[T]he standard of proof for the Government is beyond a rea-
sonable doubt. It is not beyond all reasonable doubt. It is not
beyond any doubt. The standard is beyond a reasonable
doubt. And I feel compelled to instruct you as to what the
law is. And that, I think, has been erroneously stated to you
and I'm correcting it. The standard is beyond a reasonable
doubt, not beyond all reasonable doubt.
J.A. 375-76. The jury convicted Bradley of conspiracy to distribute
and possess with the intent to distribute cocaine base and aiding and
abetting the distribution of cocaine base.
II.
Bradley first challenges the decision of the district court to reiterate
its reasonable doubt instruction after defense counsel's closing argu-
ment, contending that the instruction confused the jury and deprived
him of a fair trial. The decisions of whether to give a jury instruction
and what to include in the instruction are reviewed for abuse of dis-
cretion. See United States v. Ellis, 121 F.3d 908, 923 (4th Cir. 1997)
(quoting United States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996)),
cert. denied, 118 S. Ct. 738 (1998). Jury instructions must be viewed
in their entirety and in the context of the whole trial to determine if
there was an abuse of discretion. See United States v. Park, 421 U.S.
658, 674-75 (1975).
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Bradley asserts that courts freely substitute "any" and "all" for "a"
when discussing the applicable burden of proof. It is well-settled,
however, that the correct standard in a criminal case is "beyond a rea-
sonable doubt." In re Winship, 397 U.S. 358, 364 (1970) (holding that
government must prove beyond a reasonable doubt every element of
a charged offense). And although the supplemental instruction given
by the district court here noted that the standard previously had been
misstated, Bradley's claim fails because "`the[supplemental] charge
was not misleading and contained an adequate statement of the law.'"
United States v. Queen, 132 F.3d 991, 1000 (4th Cir. 1997) (quoting
United States v. United Med. & Surgical Supply Corp. , 989 F.2d
1390, 1407 (4th Cir. 1993)), cert. denied, 118 S. Ct. 1572 (1998).
III.
Bradley next claims on appeal that the district court erred by deny-
ing his motion for judgment of acquittal under Fed. R. Crim. P. 29.
We review the denial of a motion for acquittal under a sufficiency of
evidence standard. See Fed. R. Crim. P. 29; United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998). The relevant question is not
whether we are convinced of guilt beyond a reasonable doubt, but
rather whether the evidence, when viewed in the light most favorable
to the Government, was sufficient for a rational trier of fact to have
found the essential elements of the crime beyond a reasonable doubt.
See United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc), cert. denied, 117 S. Ct. 1087 (1997); Glasser, 315 U.S. at 80.
If substantial evidence exists to support a verdict, the verdict must be
sustained. See Glasser, 315 U.S. at 80.
To prove conspiracy to possess cocaine base with the intent to dis-
tribute, the government must establish: (1) an agreement between
two or more persons to possess cocaine base with the intent to distrib-
ute it; (2) knowledge of the conspiracy by the defendant; and (3) a
knowing and voluntary decision by the defendant to join the conspir-
acy. See Burgos, 94 F.3d at 857. An agreement to participate in a con-
spiracy need not be proved by direct evidence and may be inferred
from circumstantial evidence. See id. at 857-58. And "[a] defendant
is guilty of aiding and abetting if he has `knowingly associated him-
self with and participated in the criminal venture.'" Id. at 873 (quoting
United States v. Winstead, 708 F.2d 925, 927 (4th Cir. 1993)).
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Here, the evidence at trial disclosed that Lassinger called Bradley
several times after the informant expressed an interest in purchasing
crack cocaine. Bradley met Lassinger at the restaurant where they
made an exchange, and Lassinger then handed the crack to the infor-
mant. When officers apprehended Bradley, they discovered $1746 in
cash (including the $200 in marked bills) along the path where Brad-
ley fled. We therefore conclude that the evidence was sufficient to
convict Bradley. See Burgos, 94 F.3d at 857, 873.
Bradley asserts, however, that the evidence was insufficient
because he testified that Lassinger gave him money to repay a loan--
not to purchase drugs--and because Lassinger testified that he had the
crack before he met Bradley in the parking lot. In finding Bradley
guilty, the jury rejected this testimony. We may not weigh the evi-
dence or review the credibility of the witnesses. See United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). We therefore find no error
in the denial of Bradley's Rule 29 motion.
IV.
Bradley also claims that the district court erred in admitting evi-
dence of his and Lassinger's prior drug convictions to impeach their
credibility, admitting evidence of a defense witness' brother's prose-
cution and conviction for impeachment purposes, admitting telephone
and pager records, and excluding evidence that an officer broke his
hand while assaulting Bradley. Assuming, without deciding, that the
admission or exclusion of this evidence was error, any error was
harmless given the overwhelming evidence of Bradley's guilt. See
United States v. Melgar, 139 F.3d 1005, 1016 (4th Cir. 1998) (provid-
ing standard).
V.
Finally, Bradley contends that the district court erred in determin-
ing the amount of drugs attributable to him by converting over $1500
in cash to its crack cocaine equivalent. Conversion of money derived
from drug trafficking to its equivalent drug amount is permissible. See
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1, comment. (n.12)
(1995); United States v. Hicks, 948 F.2d 877, 882-83 (4th Cir. 1991).
At sentencing, the government must establish a connection between
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the money seized and drug-related activity. See Hicks, 948 F.2d at
882-83. Whether the Government has met its burden of proof is a
question of fact reviewed for clear error. See United States v. Self, 132
F.3d 1039, 1042 (4th Cir. 1997), cert. denied , 118 S. Ct. 1573 (1998).
The district court relied on trial testimony to determine whether the
cash was related to drug activity and found that Bradley's explanation
that the money was for rent due his landlord was incredible. Govern-
ment witnesses testified that as Bradley fled the parking lot after com-
pleting the transaction with Lassinger, he discarded $1746 in cash
($200 of which was the money from the informant). After Bradley's
arrest, officers testified that Bradley offered to cooperate by obtaining
two kilograms of crack cocaine for the police. These facts were suffi-
cient to establish a connection between the cash and drug-related
activity. See Hicks, 948 F.2d at 882-83. We therefore find that the
drug amount attributed to Bradley was not clearly erroneous. See Self,
132 F.3d at 1042.
VI.
Accordingly, we affirm Bradley's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately expressed in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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