United States v. Kermit Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 99-4062

KERMIT C. BROWN, a/k/a Brian

Mackey, a/k/a Destruction, a/k/a

Bear,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4063

ROBERT CY MANN, a/k/a B,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4254

PERCELL A. DAVIS, a/k/a King,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CR-98-47)

Argued: January 28, 2000

Decided: July 10, 2000

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mark McRoberts McMillin, THE BEREAN LAW

GROUP, P.C., Norfolk, Virginia; Benjamin Thomas Reed, Norfolk,

Virginia, for Appellants. Fernando Groene, Assistant United States

Attorney, Darryl J. Mitchell, Assistant United States Attorney, Nor-

folk, Virginia, for Appellee. ON BRIEF: Douglas Fredericks, Nor-

folk, Virginia, for Appellant Brown. Helen F. Fahey, United States

Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Robert Mann, Percell Davis, and Kermit Brown (collectively,

Appellants) were convicted by a jury in the United States District

Court for the Eastern District of Virginia of committing various fed-

eral narcotics and firearms violations arising out of a drug conspiracy

of which Appellants were found to be members. Appellants jointly

and individually assert several grounds for reversal on appeal, includ-

ing that the district court erred in denying Appellants' Batson chal-

lenge; that the district court should have severed Mann's trial from

that of his co-defendants; that Mann did not receive a fair trial

because the jury heard evidence relating to a drug conspiracy in

Maryland for which he had already been convicted; that the evidence

did not support Mann's convictions; that the district court erred at

2

sentencing by incorrectly determining the date from which Davis

became involved in the conspiracy; and that the district court erred in

concluding that Davis was on probation during his involvement in the

conspiracy. Finding no error, we affirm.

I.

Mann was a member of a drug conspiracy with, among others,

Richard Thomas Stitt, Davis, and Brown, that existed in Virginia and

other states (the Virginia conspiracy). In March 1996, Mann traveled

to Maryland to buy cocaine for redistribution to Stitt, among others.

Unbeknownst to Mann, however, the seller of this cocaine was coop-

erating with the police. On March 15, 1996, the police arrested Mann

in Maryland and found several kilograms of cocaine on his person, as

well as $53,050 in cash. Some or all of this money belonged to Stitt.

The Government tried Mann in the United States District Court for

the District of Maryland for, among other things, conspiracy to dis-

tribute drugs (the Maryland conspiracy). The indictment alleged that

the Maryland conspiracy existed "[f]rom on or about December 1,

1995, until on or about March 16, 1996, in the State and District of

Maryland and elsewhere." (J.A. at 183.) On February 23, 1997, Mann

pleaded guilty to the Maryland conspiracy, and on June 17, 1997, he

was sentenced to five years imprisonment.

On April 14, 1998, Mann, Davis, Brown, Stitt, and nine other co-

defendants were named in a 31-count indictment in the United States

District Court for the Eastern District of Virginia for various federal

narcotics and firearm violations related to the Virginia conspiracy,

which was alleged to have existed "[f]rom on or about 1990 . . . and

continuously thereafter."1 (J.A. at 95.) Mann was charged with

involvement in the Virginia conspiracy, as well as for the substantive

counts of possession with intent to distribute cocaine base, 21

U.S.C.A. § 841(a)(1) (West 1999) (Count 18), and distribution of

cocaine base, 21 U.S.C.A. § 841(a)(1) (Count 25).2 Davis was

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1 Eight of the other nine co-defendants pleaded guilty, and the ninth

remains a fugitive.

2 Count 18 of the indictment alleged that "[i]n or about March 1995, in

Portsmouth, Virginia," Mann, Stitt, and others"knowingly, intentionally,

3

charged with participating in the Virginia conspiracy, possession with

intent to distribute cocaine base pursuant to 21 U.S.C.A. § 841(a)(1),

distribution of cocaine base pursuant to 21 U.S.C.A.§ 841(a)(1), and

murder. Brown was charged with several counts, including participa-

tion in the Virginia conspiracy, murder in furtherance of a criminal

enterprise, use of a firearm during a crime of violence, and substan-

tive drug offenses.3 The Government tried Mann, Davis, Brown, and

Stitt together.

On May 27, 1998, Mann filed a pretrial motion to sever his trial

from that of his co-defendants. The motion to sever, which Stitt

adopted and joined, argued that severance was appropriate because

Mann would not be able to cross-examine his co-conspirators and

because he would be generally prejudiced by having to stand trial

with fellow co-conspirators. The motion to sever did not raise any

double jeopardy arguments relating to the Maryland conspiracy.

On the same day, Mann also filed a motion in limine to exclude

evidence of his Maryland conviction, arguing that Federal Rule of

Evidence 404(b) barred such evidence. As with his motion for sever-

ance, Mann's motion in limine did not argue that double jeopardy was

a basis for excluding the evidence. On June 23, 1998, at an oral hear-

ing, the district court denied Mann's motion for severance and

deferred ruling on the motion in limine.

At trial, which began on September 8, 1998, the Government

offered evidence relating to Mann's substantive drug counts, as well

as his involvement in the Virginia conspiracy. The evidence showed

that Mann supplied crack to Stitt from the spring of 1995 to the spring

of 1996. It also showed that Mann or his employees delivered crack

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and unlawfully possess[ed] with intent to distribute . . . cocaine base."

(J.A. at 163.) Count 25 of the indictment alleged that "[i]n or about Sum-

mer 1995, in Portsmouth, Virginia," Mann "did knowingly, intentionally,

and unlawfully distribute a quantity of a mixture of. . . cocaine." (J.A.

at 169.)

3 Because Brown's only ground for appeal is a Batson challenge that

he shares with the other Appellants, we will not detail the facts relating

to Brown.

4

to Stitt in restaurant parking lots, and that Mann assisted Stitt in redis-

tributing cocaine to others through couriers. In addition, the Govern-

ment offered Robert Flood as a witness. Flood, an associate of Stitt

and Mann's, testified that he became aware in 1995 that Mann sup-

plied drugs to Stitt for redistribution and that, in the spring of 1995,

Flood personally received cocaine from Mann's courier. The Govern-

ment also offered the testimony of Tyrone Wallace, another associate

of Stitt and Mann's. Wallace testified that he saw Mann distribute

drugs to Stitt.

On October 2, 1998, prior to the testimony of Police Detective Kri-

ete, who was scheduled to testify about the Maryland conspiracy,

Mann reiterated his objection to the admission of evidence relating to

that conviction. Mann argued that Federal Rule of Evidence 404(b)

prohibited admission of that evidence. He also argued, apparently for

the first time, that the evidence of the Maryland conviction raised

double jeopardy concerns. The district court denied Mann's motion to

exclude evidence of the Maryland conviction and allowed Detective

Kriete to testify about the March 1996 controlled drug buy in Mary-

land. On October 8, 1998, approximately one month after the begin-

ning of trial, Mann filed a motion to dismiss the conspiracy charge

against him on the basis of double jeopardy.

At trial, the Government also offered evidence relating to Davis's

involvement in the Virginia conspiracy. Among the primary evidence

against Davis was the testimony of his cousin, Jason Davis (Jason),

who murdered Sinclair Simon on behalf of Stitt on October 27, 1994.

Jason, who was a distributor and enforcer for Stitt, murdered Simon

because Stitt was concerned that Simon would confess to his and

Stitt's involvement in another murder. Jason testified that Davis went

with him to meet Simon under the pretense of picking up drug pro-

ceeds. After Jason and Davis met Simon, Jason drove them to a loca-

tion where drugs were supposed to be buried. Jason left the car with

Simon, shot Simon, and then ran back to the car and ordered Davis

to drive away. Davis drove back to Jason's house and helped him

clean the vehicle after Jason informed Davis that he had killed Simon.

Jason testified that Davis did not know beforehand that Jason planned

to murder Simon. Another Government witness, Shawn Davis, testi-

fied that Davis had indicated to him that Davis was aware that Jason

intended to kill Simon before it happened. The Government offered

5

this evidence to show that Davis was a member of the conspiracy in

October 1994.

The jury found Mann guilty of conspiracy, possession with intent

to distribute cocaine base, and distribution of cocaine base. The jury

acquitted Davis of murder, but it found him guilty of conspiracy, pos-

session with intent to distribute cocaine base, and distribution of

cocaine base. The jury convicted Brown on all four counts with which

he was charged.

Mann, Davis, and Brown were sentenced at separate hearings.4 At

sentencing, the district court granted Mann's motion to dismiss his

conviction for the Virginia conspiracy count, finding that the Virginia

conspiracy was the same as the Maryland conspiracy for which Mann

was earlier convicted in 1997. The district court sentenced Mann to

concurrent 252-month sentences on the remaining counts, to be

served concurrently with his sentence for the Maryland conviction.

The district court sentenced Davis to 432 months imprisonment on the

conspiracy count and to concurrent 240-month sentences on the other

counts. In arriving at Davis's sentence, the district court followed the

recommendation from Davis's presentence report that he receive two

additional criminal history points because Davis was under a criminal

justice sentence during his participation in the conspiracy. The district

court also added one criminal history point based upon Davis's prior

misdemeanor conviction for failure to appear, which, according to the

presentence report, subjected Davis to one year of unsupervised pro-

bation. Brown was sentenced to two life terms and 240 months

imprisonment, each running concurrently, and sixty months imprison-

ment to run consecutively.

On appeal, Appellants jointly and individually raise several issues.

Appellants argue that the district court erred in rejecting their Batson

challenges. Mann argues that the district court erred in failing to sever

his trial from that of his co-defendants,5 and that he was prejudiced

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4 Stitt, who is not a party to this appeal, was found guilty of several

charges, including capital murder, and he was sentenced to death.

5 Mann, in his brief and at oral argument, could not articulate how the

district court's failure to sever the trial specifically prejudiced him. Con-

sequently, at oral argument, we requested that Mann file a supplemental

letter detailing exactly how he was prejudiced by the joint trial.

6

by the district court's decision to admit evidence related to his subse-

quent bad acts arising from the Maryland conspiracy for which he had

already been convicted. Mann also argues that the evidence was so

conflicted that no reasonable jury could have convicted him and that

the district court erred at sentencing in determining the actual weight

of the drugs that should be attributed to him pursuant to U.S. Sentenc-

ing Guidelines Manual § 2D1.1(c) (1998). Davis argues that the dis-

trict court incorrectly determined the date that Davis began his

involvement in the conspiracy, that the district court erred in adding

one criminal history point based upon his misdemeanor conviction for

failure to appear, and that the district court erred in concluding, pursu-

ant to U.S.S.G. § 4A1.2, that Davis was under a criminal justice sen-

tence during his participation in the conspiracy. We address each

issue in turn.

II.

Appellants first argue that the district court erred in denying their

Batson challenge. During jury selection, Appellants raised a Batson

challenge based upon the Government's peremptory strikes, arguing

that the Government struck a disproportionate number of black

veniremen and that the Government's explanations for its strikes were

not credible. We review a district court's denial of a Batson challenge

under the clearly erroneous standard. See United States v. Grimmond,

137 F.3d 823, 833 (4th Cir.), cert. denied, 525 U.S. 850 (1998).

In asserting a Batson challenge, "[a] defendant has the burden of

establishing a prima facie case of discrimination by the prosecutor in

the selection of the jury. If the defendant makes a showing sufficient

to infer discrimination, the burden shifts to the prosecutor to provide

neutral explanations for his use of peremptory challenges."6 United

States v. Lane, 866 F.2d 103, 104 (4th Cir. 1989) (internal citations

omitted). "If the prosecutor satisfies this requirement, the burden

shifts back to the defendant to prove that the explanation given is a

pretext for discrimination. The ultimate burden always rests with the

opponent of the challenge to prove `purposeful discrimination.'"

Grimmond, 137 F.3d at 834 (internal citations omitted). "The Govern-

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6 In the present case, it is undisputed that Appellants established a

prima facie case.

7

ment's explanation need not be persuasive, or even plausible, as long

as it is neutral." Id. (internal quotation marks omitted). The proffered

reason "need not be worthy of belief or related to the issues to be tried

or to the prospective juror's ability to provide acceptable jury ser-

vice." Jones v. Plaster, 57 F.3d 417, 420 (4th Cir. 1995).

In the present case, the jury panel had sixty-six individuals, of

whom sixteen were black. The Government exercised twenty-two

strikes, ten of which were used to strike black veniremen. Appellants

made a Batson challenge, and the district court asked the Government

to justify each of its strikes. The Government responded with expla-

nations for its strikes, several of which are specifically contested in

Appellants' brief.

The gist of Appellants' arguments is that the Government's expla-

nations were not believable and that similarly situated white venire-

men were not struck. The Government's strikes were based, among

other things, upon two venireperson's problems with the death pen-

alty, a venireperson's experience working with troubled children and

teenagers, a spouse's employment in a correctional institution, a

venireperson's previous addiction to drugs, a venireperson's quiet and

soft-spoken demeanor, and addiction in a venireperson's family. Each

of these reasons, on its face, is race-neutral. See Grimmond, 137 F.3d

at 834 (upholding strike based upon the venireperson's age); Mat-

thews v. Evatt, 105 F.3d 907, 918 (4th Cir. 1997) (rejecting Batson

challenge even though the proffered reason -- equivocation about the

venireperson's ability to impose the death penalty-- was shared by

other venirepersons and even though all of the prosecutor's strikes

were used on black persons); United States v. Bynum, 3 F.3d 769, 772

(4th Cir. 1993) (affirming district court's rejection of Batson chal-

lenge where the prosecutor's explanations were that a venireperson

had the same last name as someone the prosecutor had prosecuted

from the same town; that a venireperson was unemployed and had

trouble with transportation to court; and that a venireperson was a

young, single mother who might be too sympathetic with the defen-

dant).

Appellants attempt to show pretext with respect to several of the

strikes on the ground that similarly situated white veniremen were not

struck. Although this type of discrepancy can be evidence of pretext,

8

it certainly does not, by itself, show pretext. See Matthews, 105 F.3d

at 918 (stating that "Batson is not violated whenever two veniremen

of different races provide the same responses and one is excused and

the other is not"); Lane, 866 F.2d at 106 (rejecting argument that "the

facially neutral reason was merely pretextual as evidenced by the fact

that the prosecutor had earlier accepted a white female juror who, like

Lucas, had not finished high school and had struck Robinson, who

had 14 years of education"). The district court, which had the benefit

of seeing the veniremen in person, and, thus, had the ability to assess

the credibility of the Government's explanations, carefully scrutinized

the Government's responses and concluded that they were not pretex-

tual. On the record before us, we find no reason to disagree.7

III.

Mann argues on appeal that the district court abused its discretion

in refusing to sever his trial from that of his co-defendants because,

he asserts, he should not have been tried with members of a conspir-

acy for which he had already been convicted. Mann also argues that

he was prejudiced by having to stand trial with Stitt, a capital murder

defendant, against whom evidence of brutal murders was offered. We

disagree.

The grant or denial of a motion for severance is within the sound

discretion of the district court, and therefore, we review its decision

for abuse of discretion. See United States v. Smith, 44 F.3d 1259,

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7 Appellants argue that the district court appeared skeptical as to some

of the Government's proffered explanations. The district court stated, for

example, that two of the Government's strikes, which were each based

upon opposition to the death penalty, were "marginal" because those

jurors also indicated an ability to sit impartially. (J.A. at 356.) The dis-

trict court stated that "[o]ut of all of these 22 strikes [the Government

has] provided reasons for making these strikes. It's only maybe two of

these strikes here that one might say they were marginal." (J.A. at 365.)

The district court explained, however, that although these particular

strikes were marginal, they nevertheless were supported by race neutral

reasons. The district court explicitly found that Appellants had not shown

pretext, stating that "I don't have any pretext or discrimination here, so

I don't have a basis under Batson to strike or reverse your strikes." (J.A.

at 366.) We cannot say that the district court clearly erred in this finding.

9

1267 (4th Cir. 1995); United States v. Santoni , 585 F.2d 667, 674 (4th

Cir. 1978). Federal Rule of Criminal Procedure 14 provides that "the

court may . . . grant a severance of defendants" if "it appears that a

defendant or the government is prejudiced by a joinder of . . . defen-

dants . . . for trial together." Fed. R. Crim. P. 14. However, "[b]arring

special circumstances, individuals indicted together should be tried

together." United States v. Brugman, 655 F.2d 540, 542 (4th Cir.

1981). There is a presumption that co-defendants indicted together

will be tried together unless "a joint trial would be so unfairly prejudi-

cial that a miscarriage of justice would result." United States v. Wil-

liams, 10 F.3d 1070, 1080 (4th Cir. 1993). In applying this

presumption, the mere fact that evidence against one or more defen-

dants is stronger or more inflammatory than the evidence against

other defendants does not warrant severance. See United States v.

Hall, 93 F.3d 126, 131 (4th Cir. 1996). Moreover, "[a] defendant

making a motion for severance pursuant to Rule 14 has the burden of

demonstrating a strong showing of prejudice, and it is not enough to

simply show that joinder makes for a more difficult defense." United

States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984) (internal cita-

tions omitted).

In the present case, Mann argues that he was prejudiced because

most of the evidence offered at trial -- including evidence relating to

his Maryland conviction, evidence of drug transactions in which he

was not a participant, and evidence relating to Stitt's capital murder

charges -- would not have been admissible against him had the dis-

trict court severed the trial. Our examination of the record, however,

leads us to the conclusion that the district court did not abuse its dis-

cretion in refusing to sever the trial.8 As noted above, "[a] defendant

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8 Mann also contends that the district court erred in refusing to sever

the trial from the beginning on double jeopardy grounds. We note, how-

ever, that this was not a situation in which the district court simply

ignored the double jeopardy issue from the outset in refusing to sever the

trial. Indeed, Mann did not raise the double jeopardy issue until well after

the trial had already begun and over four months after filing his motion

to sever. Mann's arguments for severance, both in his motion and at the

oral hearing before the district court, relied only upon generalized

notions of prejudice stemming from having to stand trial with co-

conspirators, and not from any specific prejudice arising from double

10

making a motion for severance pursuant to Rule 14 has the burden of

demonstrating a strong showing of prejudice." 9 Goldman, 750 F.2d at

1225. Mann fails to satisfy this burden because there is no indication

that the jury could not compartmentalize the evidence as it related to

the different defendants. See United States v. Ford, 88 F.3d 1350,

1361 (4th Cir. 1996). To the contrary, the jury's ability to evaluate the

separate evidence against each co-defendant was demonstrated by its

acquittal of Davis on the murder count. See id. (concluding that the

jury "demonstrated its ability to sift through the evidence and draw

conclusions based on the evidence relevant to each defendant" when

it acquitted some defendants on some counts). Moreover, the district

court explicitly instructed the jury that in order to convict Mann on

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jeopardy grounds. Although "the trial judge has a continuing duty at all

stages of the trial to grant a severance if prejudice does appear," Schaffer

v. United States, 362 U.S. 511, 516 (1960), it is difficult to say that the

district court abused its discretion in weighing concerns of judicial econ-

omy, along with the normal presumption of a joint trial, against Mann's

burden to show specific prejudice when Mann did not articulate any spe-

cific prejudice until after the fact, and, indeed, has struggled to do so

even on appeal.

9 To the extent that Mann argues that the mere fact that the conspiracy

count against him was subsequently dismissed automatically shows that

severance was warranted because of the inherently prejudicial nature of

the proceedings, we disagree. Absent a showing of actual prejudice, the

mere fact of a subsequent dismissal of a conspiracy count, standing

alone, does not necessarily call for severance. We have previously

affirmed substantive convictions following the dismissal of a conspiracy

count after the start of trial. See United States v. Jarvis, 7 F.3d 404, 413-

15 (4th Cir. 1993) (concluding that conspiracy prosecution against Jarvis

constituted double jeopardy but, nevertheless, affirming the defendant's

remaining convictions on substantive drug offenses); see also Schaffer v.

United States, 362 U.S. 511, 513-14 (1960) (affirming district court's

refusal to sever trial after conspiracy count was dismissed for failure of

proof before submission to the jury because appellants could not show

prejudice); cf. United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996)

(affirming district court's refusal to sever trial after jury acquitted defen-

dants on conspiracy charge because there was sufficient evidence for the

jury to consider the conspiracy count and there was no evidence that the

jury could not compartmentalize the evidence as it related to the different

defendants).

11

the substantive drug counts, the Government had to prove each of the

essential elements of those counts beyond a reasonable doubt. See

Zafiro v. United States, 506 U.S. 534, 540-41 (1993) (concluding that

the district court did not abuse its discretion in denying severance

where, among other things, appellants could not show specific preju-

dice and the district court "properly instructed the jury that the Gov-

ernment had the burden of proving beyond a reasonable doubt that

each defendant committed the crimes with which he or she was

charged" (internal quotation marks omitted)). Mann has not given us

any reason to believe that the jury disregarded this instruction by

improperly considering Stitt's capital charges or the separate conspir-

acy count against Mann when it convicted Mann on the substantive

counts.10 See Weeks v. Angelone, 120 S. Ct. 727, 733 (2000) ("A jury

is presumed to follow its instructions.").

Accordingly, because there is no indication in the record that the

jury could not separate the evidence relating to the capital case

against Stitt from the substantive drug offenses against Mann, we can-

not conclude that Mann was unfairly prejudiced from having to stand

trial with his co-defendants.11 We, therefore, conclude that the district

court did not abuse its discretion in refusing to sever the trial.

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10 Mann also fails to articulate any actual prejudice that he suffered

from having to stand trial with a capital co-defendant. Mann relies,

instead, upon broad arguments concerning the generally prejudicial

nature of a capital trial. We decline to adopt a per se rule, as Mann

appears to seek, that every trial involving both capital and non-capital

defendants is so inherently prejudicial as to warrant severance even

absent a showing of any specific prejudice. Cf. United States v. Tipton,

90 F.3d 861, 868 n.1 (4th Cir. 1996) (noting that co-defendant Sandra

Reavis, a non-capital defendant, was tried together with capital defen-

dants Tipton, Johnson, and Roane); United States v. Reavis, 48 F.3d 763,

766-68 (4th Cir. 1995) (affirming district court's refusal to sever trial of

Sandra Reavis from that of co-defendants Tipton, Johnson, and Roane on

the basis that Roane would have offered favorable testimony at a sepa-

rate trial because Reavis failed to make an "affirmative demonstration

that she was deprived of a fair trial by the denial of her severance

motion").

11 Mann maintains that severance was appropriate because "conserva-

tively some 90-95% of the evidence was inadmissible as to Mann, were

12

IV.

Mann next argues that the district court erred by admitting evi-

dence related to his Maryland conviction pursuant to Federal Rule of

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he being tried on only the substantive counts without the conspiracy."

(Appellant's Br. at 27.) See Zafiro v. United States, 506 U.S. 534, 539

(1993) (recognizing that a risk of prejudice "might occur when evidence

that the jury should not consider against a defendant and that would not

be admissible if a defendant were tried alone is admitted against a code-

fendant"). Mann, however, overstates his case. Indeed, much of the evi-

dence supporting his substantive convictions would have been admissible

against him at a separate trial, including Flood's testimony that Flood

received cocaine from Mann's courier in the spring of 1995; Wallace's

testimony that at some point in 1995, he saw Mann give Stitt a duffel bag

that contained two "keys" of cocaine (J.A. at 729.); Ivan Harris's testi-

mony that he, Stitt, Flood, and Sam Hucks went to a go-go bar to procure

drugs, and that Harris observed Mann give Stitt a bag full of cocaine

base; and Jason Ortega's testimony that Mann and Stitt taught him how

to "cook" cocaine powder into cocaine base. Likewise, the evidence

relating to the Maryland conspiracy would also have been admissible at

a separate trial. See infra part IV (concluding that the district court did

not err in admitting evidence against Mann relating to the Maryland con-

spiracy). Accordingly, we cannot agree with Mann's assertion that he

was unfairly prejudiced by the admission of most of the evidence against

him at his joint trial.

Mann, in his supplemental letter, lists both Harris's and Flood's testi-

mony as "evidence which counsel for Mr. Mann believes would not have

been admitted into evidence at trial had this case been severed at trial

from that of the co-defendants." (Letter from Mark M. McMillin to this

Court, dated Feb. 1, 2000.) However, Mann does not articulate any rea-

son why this evidence would be inadmissible at a separate trial, nor can

we see any basis from which to exclude this evidence. Even if we con-

strued Mann's laundry-list reference to this evidence as asserting Federal

Rule of Evidence 404(b) as a ground for exclusion, we believe that the

evidence would be admissible, and, indeed, would not be Rule 404(b)

evidence at all, because it constitutes direct evidence of the conduct

charged. We also note that Mann's letter does not challenge Wallace's

testimony concerning the cocaine in the duffel bag or Ortega's testimony

that Mann and Stitt taught Ortega how to cook powder cocaine into

cocaine base.

13

Evidence 404 because, he asserts, subsequent bad-act evidence is

inadmissible. Mann also contends that the district court erred because

the Government offered evidence relating to his Maryland conviction

only for the improper purpose of showing Mann's bad character. The

Government responds that it offered the evidence not as character evi-

dence, but as evidence of the agreement and relationship between

Mann and Stitt that was intrinsic to the charged offenses. The Govern-

ment also argues that the evidence is of prior bad acts, rather than

subsequent bad acts, because the conspiracy continued beyond the

time period of the Maryland conviction, and, in any case, that evi-

dence of subsequent bad acts is admissible.

We review the district court's admission of evidence pursuant to

Federal Rule of Evidence 404 for abuse of discretion. See United

States v. Powers, 59 F.3d 1460, 1469 (4th Cir. 1995). Federal Rule

of Evidence 404 permits the admission of "[e]vidence of other crimes,

wrongs, or acts" for purposes other than "to prove the character of a

person in order to show action in conformity therewith," such as

"proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Fed. R. Evid. 404(b). The

district court admitted the evidence of Mann's Maryland conviction,

concluding that "it's relevant, it's probative. It may be introduced to

show the state of mind, plan, pattern, any number of things here, so

the court can't find any plausible reason to exclude the testimony."

(Tr. at 3991.)

We have stated that Rule 404(b) evidence is admissible under the

following circumstances:

[W]e hold that evidence of prior acts becomes admissible

under Rules 404(b) and 403 if it meets the following

criteria: (1) the evidence must be relevant to an issue, such

as an element of an offense, and must not be offered to

establish the general character of the defendant. In this

regard, the more similar the prior act is (in terms of physical

similarity or mental state) to the act being proved, the more

relevant it becomes. (2) The act must be necessary in the

sense that it is probative of an essential claim or an element

of the offense. (3) The evidence must be reliable. And (4)

14

the evidence's probative value must not be substantially out-

weighed by confusion or unfair prejudice . . . .

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).12 We con-

clude that the Government properly articulated a basis for admitting

the evidence in question. In the present case, the Government offered

evidence that Mann traveled to Maryland in March 1996 with Stitt's

money to buy drugs on behalf of Stitt. This evidence was relevant to

the substantive drug counts because it established, among other

things, Mann's knowledge and intent to distribute drugs. See United

States v. Whaley, 786 F.2d 1229, 1232 (4th Cir. 1986) ("The mere fact

that the `other acts' at issue occurred after the events charged in the

indictment does not render them irrelevant . . . . Subsequent conduct

may be highly probative of prior intent. That one has thought in a par-

ticular illegal way over a period of time is evidence that one's thought

patterns had already been so developed and were so operating on

another previous occasion."). We have little difficulty concluding that

the evidence relating to Mann's Maryland conviction was probative

and that it was not offered for the impermissible purpose of showing

Mann's bad character. Likewise, this evidence was essential to estab-

lish the elements of Mann's substantive drug charges, which alleged

that Mann "knowingly" and "intentionally" possessed and distributed

drugs.13 This is particularly true in light of Mann's efforts to portray

himself as merely a friend of Stitt's who did not participate in any

drug deals. (See, e.g., Appellant's Br. at 35 (arguing that "Mann only

sold cars to Stitt and was not part of his drug business"); 12 (arguing

that although Mann received a large amount of cash in a shoebox,

Mann did not look to see what was in the box).) Nor can we say that

the district court abused its discretion in determining that the proba-

tive value of this evidence was not substantially outweighed by its

_________________________________________________________________

12 Seizing upon our use of the word "prior acts" in describing Rule

404(b) admissibility, Mann argues that Rule 404(b) does not permit evi-

dence of subsequent acts. However, on several other occasions, we have

admitted evidence of subsequent bad acts and not just prior bad acts. See

United States v. Whaley, 786 F.2d 1229, 1232 (4th Cir. 1986); United

States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982).

13 Mann does not contest the reliability of the evidence. (See Tr. at 3987

(Mann's counsel, stating that "[t]here's no question it would be reli-

able").)

15

prejudicial nature. Having reviewed the record, and given the highly

probative nature of this evidence, we cannot conclude that the district

court abused its discretion in allowing the Government to present this

evidence.

V.

Mann also argues that the evidence was so conflicted that no rea-

sonable jury could have convicted him. In essence, Mann argues that

there was insufficient evidence to sustain his convictions because

there was contradictory evidence. In reviewing the sufficiency of the

evidence against Mann, we will sustain the verdict"if there is sub-

stantial evidence, taking the view most favorable to the Government,

to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).

"[S]ubstantial evidence is evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of a

defendant's guilt beyond a reasonable doubt." United States v. Bur-

gos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

In the present case, there was substantial evidence to support

Mann's convictions. Flood testified, for example, that he became

aware in 1995 that Mann supplied drugs to Stitt for redistribution and

that, in the spring of 1995, Flood received cocaine from Mann's cou-

rier. Similarly, Wallace testified that at some point in 1995, he saw

Mann give Stitt a duffel bag that contained two"keys" of cocaine.

(J.A. at 729.) Ivan Harris testified that, in the summer of 1995, he,

Stitt, Flood, and Sam Hucks went to a go-go bar to procure drugs, and

that Harris observed Mann give Stitt a bag full of cocaine base. And,

Jason Ortega testified that Mann and Stitt taught him how to "cook"

cocaine powder into cocaine base. Viewing this evidence in the light

most favorable to the Government, we find meritless Mann's argu-

ment that this evidence is insufficient to support his convictions.

VI.

Finally, Mann argues that the district court erred in attributing 1.5

kilograms of cocaine base to Mann under Count 18 and ten kilograms

of cocaine under Count 25 for purposes of setting Mann's base

offense level pursuant to U.S.S.G. § 2D1.1. We review the district

court's findings under the clearly erroneous standard. See United

16

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). In reviewing

the district court's application of the Sentencing Guidelines, we give

"due regard to the opportunity of the district court to judge the credi-

bility of witnesses." 18 U.S.C.A. § 3742(e) (West Supp. 2000).

In the present case, Detective Tammy Early testified at Mann's

sentencing that Mann should be responsible for 1.5 kilograms of

cocaine base for Count 18 and ten kilograms of cocaine for Count 25.

The district court attributed these amounts to Mann, overruling

Mann's objection. The district court made explicit findings and

described its reasoning. For example, with respect to Count 18, it

stated that

[t]he court finds that a minimum of three kilograms were

involved in the possession with intent to distribute in count

18. The court does, in fact, credit the testimony that in

March 1995 on at least three separate occasions this defen-

dant was involved in the possession with intent to distribute

of at least three kilograms of crack cocaine.

The government is taking the most conservative view of

the matters here. But even a more conservative view of the

testimony is that at least 1.5 kilograms were in fact pos-

sessed with intent to distribute. The record reflects far more

than that. The presentence report in paragraph 102 reflects

at least nine kilograms of crack cocaine involved. Taking

the most conservative view, the court would find as a matter

of fact that at least 1.5 kilograms or more were certainly

involved in the possession with intent to distribute on that

occasion.

(J.A. at 778-79.) The district court also made explicit findings with

respect to Count 25 in attributing ten kilograms of cocaine to Mann.

Our reading of the sentencing transcript indicates that the court

clearly considered the testimony of the case agent at the sentencing

hearing, heard all of the evidence and testimony at trial, and examined

the presentence report before making its factual findings. For that rea-

son, we cannot conclude that the district court clearly erred in its find-

ings as to the relevant drug weights attributable to Mann.14

_________________________________________________________________

14 Mann, in his brief, does not articulate why or how the district court

might have erred in its findings. He also does not point to any contrary

evidence that would support a lesser amount of drugs.

17

Accordingly, we affirm the district court's findings regarding drug

amounts attributable to Mann.15

VII.

Davis argues on appeal that there is no evidence that he was a

member of the conspiracy before April 1995. In particular, Davis

argues that the district court erred at sentencing in concluding that he

was a member of the conspiracy in October 1994 based upon his par-

ticipation in Simon's murder because the evidence showed that Davis

was unaware that his cousin, Jason, would murder Simon until it hap-

pened. Davis concedes that he was present during that murder and

that he drove Jason from the murder and helped Jason clean the car

after the murder. He argues, however, that he did not know about the

murder beforehand, and that even if he had, mere presence and con-

sent is not enough to sustain his participation in the conspiracy. The

Government responds that the evidence establishes that Davis helped

Jason murder Simon on behalf of Stitt in October 1994 and that this

constitutes participation in the conspiracy. We affirm the district

court's finding that Davis was a member of the conspiracy in October

1994.

We review the district court's factual findings under the clearly

erroneous standard. See United States v. Daughtrey, 874 F.2d 213,

217 (4th Cir. 1989). In reviewing the district court's application of the

Sentencing Guidelines, we give "due regard to the opportunity of the

district court to judge the credibility of witnesses." 18 U.S.C.A.

§ 3742(e) (West Supp. 2000). The district court stated that

_________________________________________________________________

15 Mann appears to argue that the district court was collaterally estop-

ped by the Maryland court's findings as to drug weights for the relevant

conduct, and, therefore, the district court was bound by the Maryland

court's findings as to drug weights. Mann does not, however, articulate

what the Maryland court's findings were as to drug weights, nor does he

indicate how the district court's findings are different from the Maryland

court's findings or how the result might be different if we accepted the

Maryland court's findings. Moreover, it does not appear that Mann raised

the collateral estoppel issue below. (J.A. at 1063 (describing, in presen-

tence report, Mann's objections to drug weight as"all the amounts of

drug weights were simply erroneous and unsupported by the evidence").)

18

[t]he court would find that the defendant was a participant

in this conspiracy as early as October 27th, 1994. The court

has already previously made a finding that the court didn't

find the defendant credible with respect to his role in the

Sinclair Simon murder. So the court would find that as early

as October 27th, 1994 he was a participant, and continu-

ously thereafter during these periods of probation he was

involved in this conspiracy. The court believes that is sup-

ported by the testimony in the record regarding the various

violent acts that took place, his participation in driving Mr.

Davis around.

(J.A. at 928.)

The relevant testimony on this issue came from two witnesses,

Jason and Shawn Davis. Jason testified that he, Davis, and Simon

drove out to the railroad tracks and that he and Simon left the car pur-

portedly to dig for buried drugs. Jason shot Simon, got back in the car

where Davis was waiting, and they drove off. Jason testified that

Davis asked where Simon was, and that Jason told Davis that he

killed him. Upon reaching Jason's home, Davis and Jason cleaned the

inside of the truck, removing paper, bottles and other trash. Shawn

testified that Jason and Davis visited him while he was in prison and

that Davis told Shawn about Simon's death. Davis indicated to Shawn

that he was aware that Jason intended to kill Simon before Jason

pulled the trigger, that Davis witnessed the murder, and that he and

Jason drove away from the murder scene together.

Based upon Jason and Shawn's testimony, it is undisputed that

Davis was present at the murder, that he drove Jason from the murder

scene after being told about the murder, that he helped Jason clean the

car after the murder, and that Jason committed the murder on behalf

of Stitt and the conspiracy. Moreover, Jason's testimony suggests that

even if Davis was otherwise unaware of the pending murder, he at

least believed that he, Jason, and Simon were driving out to retrieve

drug money. (See J.A. at 508 ("I told[Simon that they were going]

to pick up some drug money" while Davis was in the back seat.).)

And, Shawn testified that Davis told him that he knew about the mur-

der in advance. From this testimony, the district court had a sufficient

basis from which to conclude that Davis knew about the murder in

19

advance, that he helped Jason commit the murder by driving him

away from the murder scene, and that this incident constituted an

overt act in furtherance of the conspiracy as of October 27, 1994.

Thus, although "mere knowledge, acquiescence, or approval of a

crime is not enough to establish that an individual is part of a conspir-

acy to distribute drugs," nor is "mere presence at the scene of a distri-

bution of drugs" sufficient, United States v. Pupo, 841 F.2d 1235,

1238 (4th Cir.1988) (en banc), the district court did not clearly err in

finding that Davis's version of events was not credible and that

Davis's conduct was "more consistent with participation than [it was]

with mere acquiescence," id. (stating that the jury could have properly

concluded that the defendant participated in the conspiracy when the

evidence showed that he carried a tote bag that contained drugs and

remained in a motel room with a co-conspirator for three days until

they received a call informing them that the transaction was com-

plete).

VIII.

Davis next argues that the district court erred in concluding that he

was on a term of probation as a result of his May 3, 1996 misdemea-

nor conviction for failure to appear. Davis's sentence reflects a Crimi-

nal History Category III, with four criminal history points.16 The

district court gave Davis one criminal history point for each of his

prior convictions for attempted grand larceny and failure to appear,

and two additional criminal history points based upon the fact that

Davis was under a criminal justice sentence during his participation

in the conspiracy. Davis argues that the district court erred in giving

him a criminal history point based upon his prior misdemeanor con-

viction for failure to appear because, although he was on a twelve-

month term of "good behavior" as a result of that conviction, he was

not under a term of probation that would enable the conviction to be

counted against him under U.S.S.G. § 4A1.2(c). Therefore, Davis

asserts, his sentence should reflect only three criminal history points,

rather than four, and his Criminal History Category should be lowered

to Category II.

_________________________________________________________________

16 The original presentence report reflected five criminal history points,

but it was later revised to reflect only four points.

20

Section 4A1.2 of the Sentencing Guidelines provides that sentences

for some prior convictions, such as contempt of court or failure to

appear, are counted for guideline purposes only if"the sentence was

a term of probation of at least one year or a term of imprisonment of

at least thirty days." U.S.S.G. § 4A1.2(c)(1). In the present case, the

district court adopted the presentence report's conclusion that Davis

was subject to "$50 fine, $29 costs, 60 days suspended with 12

months good behavior" as a result of his conviction for failure to

appear, and, therefore, that Davis was under a "term of probation" for

purposes of § 4A1.2. (J.A. at 973.) Davis objected, arguing that "good

behavior" is not the same as probation.17 We review questions involv-

ing the legal interpretation of the Sentencing Guidelines de novo. See

United States v. France, 164 F.3d 203, 209 (4th Cir. 1998), cert.

denied, 527 U.S. 1010 (1999).

The issue before us is whether a "good behavior" requirement

imposed as a result of a suspended sentence for a misdemeanor con-

viction is a "term of probation" for purposes of U.S.S.G. § 4A1.2.

Under Virginia law, "the court may suspend imposition of sentence

or suspend the sentence in whole or part and in addition may place

the accused on probation under such conditions as the court shall

determine." Va. Code. Ann. § 19.2-303 (Michie 1995). The court

"may at any time before the sentence has been completely served,"

suspend the sentence, place the person on probation, or otherwise

modify the sentence. Id. Virginia law also allows the trial court to

revoke a suspended sentence for any act that occurs within the proba-

tion period, or, if no probation period is listed, within the period of

suspension fixed by the court. See Va. Code Ann. § 19.2-306 (Michie

1995). If no period of suspension is fixed by the court, then the trial

court may revoke the suspended sentence "within the maximum

period for which the defendant might originally have been sentenced

to be imprisoned." Id. For a Class I misdemeanor such as failure to

_________________________________________________________________

17 Davis offered a certified copy of his conviction, in which the box

marked "probation" is not checked; rather, the form states simply that

Davis is sentenced to a $50 fine and a sixty-day suspended sentence

"conditioned upon being of good behavior and keeping the peace." (J.A.

at 219.) The form does not state when the suspension of the sentence will

end, nor does it describe the length of the "good behavior" requirement.

21

appear, the maximum period of imprisonment is one year. See Va.

Code Ann. § 18.2-11 (Michie 1996).

Davis argues that Virginia law distinguishes between a suspension

of sentence and probation, and, therefore, a suspended sentence,

standing alone, is not a "term of probation" for purposes of § 4A1.2.

It is true that Virginia law treats a suspension of sentence as a distinct

concept from probation. See Va. Code Ann.§ 19.2-303 (providing

that the court may suspend a sentence and may also place the defen-

dant on probation). However, the Supreme Court of Virginia, in Dyke

v. Commonwealth, 69 S.E.2d 483 (Va. 1952), has previously indi-

cated that a suspended sentence predicated upon"good behavior" is

functionally the same as unsupervised probation. 18 See id. at 486 (rec-

ognizing that "a distinction is made in both sections 53-273 and 53-

275 between suspension of sentence and probation[because a]

[s]entence may be suspended without putting the defendant on proba-

tion," but noting that "terms and conditions[such as requiring good

behavior as a condition of a suspended sentence] are probation . . .

in the sense that they require the defendant to observe a specified

course of conduct; but they are not the supervised probation referred

to in the statute"); cf. Anderson v. Commonwealth, 490 S.E.2d 274,

277 (Va. Ct. App. 1997) (stating that although "[t]he law of Virginia

distinguishes the suspension of a sentence from the imposition of pro-

bation . . . the conditions imposed in probation and those imposed in

the suspension of sentences need not be analyzed in different con-

texts. The common objective of such conditions is to protect society

and to promote rehabilitation of the convict. Both probation and the

_________________________________________________________________

18 In Dyke v. Commonwealth, 69 S.E.2d 483 (Va. 1952), the Supreme

Court of Virginia addressed whether the trial court had jurisdiction to

revoke the suspension of a sentence based upon the defendant's convic-

tion within twelve months of the suspension where the suspension was

conditioned upon good behavior but did not expressly require probation

or describe the length of the "good behavior" requirement. See id. at 484.

Dyke involved an interpretation of Va. Code§ 53-272, the predecessor

statute to § 19.2-303. See Singleton v. Commonwealth, 400 S.E.2d 205,

207 (Va. Ct. App. 1991) (noting that § 19.2-303 replaced § 53-272). Sec-

tion 53-272 provided that the trial court "may suspend the imposition or

the execution of the sentence . . . and may also place the defendant on

probation under the supervision of a probation officer." Dyke, 69 S.E.2d

at 484.

22

suspension of a sentence involve the trial court's discretionary, and

conditional, release of a convict from the service of a sentence within

the penal system.").

Other courts, addressing the very issue before us, have concluded

that a sentence of unsupervised conditional release, predicated upon

good behavior, constitutes a term of unsupervised probation for pur-

poses of § 4A1.2, notwithstanding the absence of specific language in

the release referring to a term of probation. See Harris v. United

States, 204 F.3d 681, 682 (6th Cir. 2000) (noting that "[a]lthough Mr.

Harris was not sentenced to supervised probation, he was sentenced

to" a suspended sentence that was conditioned upon no further con-

victions, and stating that this form of conditional discharge "is the

functional equivalent of unsupervised probation" (internal quotation

marks omitted)); United States v. Labella-Szuba , 92 F.3d 136, 138 (2d

Cir. 1996) (stating that "[a]lthough defendant's sentence did not

include active supervision, her sentence did include a supervisory

component in that [the court] retained the power to revoke her condi-

tional discharge sentence" and, thus, her conditional discharge was

the functional equivalent to unsupervised probation); United States v.

Caputo, 978 F.2d 972, 976-77 (7th Cir. 1992) (stating that

"[p]robation means that the convicted defendant is not incarcerated

but must comply with various conditions set by the sentencing court

and monitored by a probation officer. . . . Conditional discharge is the

same except that there is no probation officer. . . . It is probation with-

out the probation officer and that is a distinction without a difference

so far as the purposes of the guideline exception is concerned").19 But

cf. United States v. Johnson, 43 F.3d 1211, 1216 (8th Cir. 1995) (con-

cluding that a stay of imposition of sentence conditioned upon the

avoidance of similar offenses under Minnesota law is not the same as

probation because "[a] stay of imposition of sentence with an atten-

dant term of either supervised or unsupervised probation is certainly

_________________________________________________________________

19 Illinois law, which was at issue in United States v. Caputo, 978 F.2d

972 (7th Cir. 1992), defines conditional discharge as a "`conditional and

revocable release without probationary supervision but under such condi-

tions as may be imposed by the court.'" United States v. Miller, 56 F.3d

719, 721 n.1 (6th Cir. 1995) (quoting Ill. Rev. Stat. ch. 38, para 1005-1-

4 (1989)).

23

a more exacting penalty than a like sentence without a term of proba-

tion due to the additional probationary restrictions").

In the present case, it is undisputed that Davis's suspended sen-

tence was revocable if he failed to satisfy the condition of "good

behavior" at any time within twelve months of his conviction for fail-

ure to appear. Although his sentence did not refer explicitly to a term

of probation, we agree that Davis's twelve-month"good behavior"

requirement is the functional equivalent to a term of unsupervised

probation. We, therefore, conclude that the district court did not err

in giving Davis a criminal history point based upon his conviction for

failure to appear.20

IX.

For the reasons discussed, we find no error at the trial or sentencing

phases of the criminal proceedings against Appellants. We therefore

affirm Appellants' convictions and sentences.

AFFIRMED

_________________________________________________________________

20 Davis also argues that, because his involvement in the conspiracy did

not begin in October 1994 and because his conviction for failure to

appear does not count as a prior sentence under U.S.S.G. § 4A1.2, the

district court erred in giving him two additional criminal history points

for being under a criminal justice sentence during his involvement in the

conspiracy. As noted above, however, see supra part VII, we have con-

cluded that the district court did not err in finding that Davis became

involved in the conspiracy in October 1994, only five months after his

May 4, 1994 conviction for attempted grand larceny. Thus, Davis was

still under a term of probation -- and, therefore, a criminal justice sen-

tence -- during his involvement in the conspiracy.

24