United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4166

DOVON BROWN, a/k/a Capone,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-95-144-H)

Submitted: September 30, 1997

Decided: November 5, 1997

Before HALL, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard L. Cannon, III, Greenville, North Carolina, for Appellant.

Janice McKenzie Cole, United States Attorney, Thomas B. Murphy,

Assistant United States Attorney, Raleigh, North Carolina, for Appel-

lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Dovon Brown appeals from his conviction and sentence for con-

spiring to distribute and to possess with the intent to distribute

cocaine base in violation of 21 U.S.C. § 846 (1994). He was sen-

tenced to life imprisonment and five years of supervised release if

released from imprisonment. For the following reasons, we affirm.

I

The evidence at Brown's trial showed that during the course of

investigating Brown, a detective arrested Kenneth Wilson, who

became a cooperating Government witness. In July 1995, at the direc-

tion of the detective, Wilson made two recorded telephone calls to

Brown, which were submitted into evidence. During the second

phone call, Wilson first spoke to an unknown female, later identified

as Lottie Renee Watts. During the conversation, Brown and Wilson

referred to an individual named Roland, who was later identified as

Roland Pearson, another cooperating Government witness. Although

Brown and Wilson discussed various sums of money for the purchase

of certain items, neither specifically mentioned drugs. Wilson testified

that after the conversation he expected Brown to deliver three ounces

of cocaine to him for $1200 an ounce.

Wilson further testified that he bought cocaine from Brown for his

own drug distribution business. Wilson stated that between April and

July 1995, he had between one and two dozen drug transactions with

Brown and bought between twelve and thirteen ounces of cocaine

base for $1000 to $1300 an ounce.

Watts testified that she sold cocaine for Brown during the summer

of 1995 and there were other people selling cocaine for Brown at that

time. She sold between thirty and thirty-five ounces of cocaine base

for Brown. She further testified that at times Brown would front her

the cocaine for sale and after the sale she would give Brown the pro-

ceeds. Watts stated that she was supplied with cocaine either directly

from Brown or through Frederick Sutton. Watts also observed Brown

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display a gun during an altercation involving drugs. On a second

occasion, she heard a gun shot and ran out of the house, where she

found Brown with a gun. Sutton testified that he also distributed

cocaine for Brown.

Roland Pearson testified that Brown began fronting him cocaine in

April 1995. He sold the drugs and gave Brown the proceeds. Brown

fronted Pearson three or four one-half ounce quantities of cocaine

base a week for eight to ten weeks. Pearson further testified that on

one occasion when Brown was questioning certain individuals about

unaccounted-for cocaine, he saw Brown brandish a firearm when

those present failed to explain the disappearance of the cocaine.

Marvin Johnson testified that in 1995 Brown asked him to help him

start a cocaine base business in Plymouth, North Carolina. In April

1995, Brown fronted three ounces of cocaine to Johnson and Johnson

gave Brown $3000 after he sold the drugs.

II

On appeal, Brown claims that: (1) the evidence was insufficient to

support his conspiracy conviction; (2) the submission of the taped

conversations unfairly prejudiced him; (3) the quantity of drugs attri-

buted to him in determining his base offense level was erroneous; (4)

the evidence was insufficient to sustain a two-level enhancement for

use of a firearm in connection with a drug offense; and (5) the evi-

dence was insufficient to sustain a four-level enhancement for his role

in the offense.

Brown first claims that the evidence was insufficient to support his

conspiracy conviction because it consisted of unrelated isolated trans-

actions with various individuals without any common scheme or

organization. Brown alleges that the Government presented a string

of witnesses who testified to their individual dealings with Brown at

various times prior to and after the commencement of the alleged con-

spiracy but that there was no description of any organization led by

Brown. In essence, Brown contends that the Government failed to

demonstrate the level of agreement necessary to prove a conspiracy

between Brown and any of the named individuals.

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On direct appeal of a criminal conviction, a "verdict must be sus-

tained if there is substantial evidence, taking the view most favorable

to the Government, to support it." Glasser v. United States, 315 U.S.

60, 80 (1942). A conspiracy generally is proved by circumstantial evi-

dence and the context in which the circumstantial evidence is adduced

and may be proved wholly by circumstantial evidence. United States

v. Burgos, 94 F.3d 849, 857-58 (4th Cir. 1996), cert. denied, 65

U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868).

A conspiracy to possess cocaine with intent to distribute is estab-

lished when: "(1) an agreement to possess cocaine with intent to dis-

tribute existed between two or more persons; (2) the defendant knew

of the conspiracy; and (3) the defendant knowingly and voluntarily

became a part of this conspiracy." Id. The conspirator's agreement

and his participation in the conspiracy may both be proved by circum-

stantial evidence. Id. Circumstantial evidence tending to prove a con-

spiracy may consist of a defendant's "relationship with other

members of the conspiracy, the length of this association, [the defen-

dant's] attitude [and] conduct, and the nature of the conspiracy."

United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984). Fur-

ther, a variety of conduct, apart from selling drugs, can constitute par-

ticipation in a conspiracy sufficient to support a conviction. Burgos,

94 F.3d at 859.

The focus of appellate review of the sufficiency of evidence to sup-

port a conspiracy conviction is on the complete picture, viewed in

context and in the light most favorable to the Government, that all of

the evidence portrayed. Id. at 863.

The testimony from Wilson, Watts, Sutton, Pearson, and Johnson

was sufficient to support Brown's conviction. Although the evidence

included uncorroborated testimony and contradictory testimony, it is

well established that the jury, not the appellate court, weighs the cred-

ibility of the evidence and resolves any conflicts in the evidence pres-

ented, and if the evidence supports different, reasonable

interpretations, the jury decides which interpretation to believe. Id. at

862. Likewise, determinations of credibility are within the sole prov-

ince of the jury and are not susceptible to judicial review. Id. at 863.

Brown contends that the evidence merely shows a string of buyer-

seller relationships which is insufficient to support a conspiracy con-

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viction. However, the evidence of repeated buy-sell transactions

involving substantial quantities of drugs supports a reasonable infer-

ence that the parties were co-conspirators. See United States v. Mills,

995 F.2d 480, 485 n.1 (4th Cir. 1993). Further, keeping in mind that

a conspiracy can be loosely-knit, haphazard, or ill-conceived, we

find that, viewing the evidence of the continuing relationships and

repeated transactions in the light most favorable to the Government,

any rational trier of fact could find Brown guilty of conspiracy to dis-

tribute and possess with intent to distribute beyond a reasonable

doubt. See Glasser, 315 U.S. at 80; Burgos, 94 F.3d at 858.

Brown next claims that he was unfairly prejudiced by the admis-

sion into evidence of taped conversations between Brown and Wilson.

Brown contends that because Wilson was acting as a Government

agent during the taped conversations, he could not have been a cocon-

spirator. See United States v. Chase, 372 F.2d 453, 459 (4th Cir.

1967). He further notes that for tape recorded statements of a co-

conspirator to be admitted into evidence and not excluded as inadmis-

sible hearsay, a district court must find that: (1) there was a conspir-

acy involving the declarant and the party against whom admission of

the evidence is sought; and (2) the statements at issue were made dur-

ing the course of and in furtherance of that conspiracy. See United

States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992); see also Fed.

R. Evid. 801(d)(2)(E).

The record reveals that the district court admitted the tape-recorded

conversation as an admission pursuant to Fed. R. Evid. 801(d)(1). The

voices of Watts and Wilson were on the tape. They both testified at

trial and were subject to cross examination. Further, their statements

on the tape were consistent with their testimony and rebutted any

charge that they were testifying under an improper influence or

motive. See id. The evidence showed that prior to Wilson's arrest, he

was a drug-dealing colleague of Brown. During the taped conversa-

tion, Brown agreed to sell and Wilson agreed to buy three ounces of

cocaine. Accordingly, we find that the district court did not abuse its

discretion in admitting the taped conversations. See Benedi v. McNeil-

P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir. 1995) (discussing standard

of review for evidentiary rulings).

Next, Brown contends that the district court improperly found that

Brown was responsible for in excess of 1.5 kilograms or 1500 grams

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of cocaine base. Brown argues that the amount found by the district

court is erroneous.

The Government bears the burden of proving the quantity of drugs

for which a defendant is to be held responsible at sentencing by a pre-

ponderance of the evidence. See United States v. Gilliam, 987 F.2d

1009, 1013 (4th Cir. 1993). The district court's factual determination

concerning the amount of drugs attributable to appellant should be

upheld absent clear error. See United States v. Lamarr, 75 F.3d 964,

972 (4th Cir. 1996), cert. denied, 65 U.S.L.W. 3309 (U.S. Oct. 21,

1996) (No. 95-9398); United States v. D'Anjou , 16 F.3d 604, 614 (4th

Cir. 1994). Furthermore, as a member of the conspiracy, Brown is

accountable for all of the drugs reasonably foreseeable to him. See

United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993); Gilliam, 987 F.2d

at 1012-13. Because the amount of drugs seized did not reflect the

scale of the offense, the district court was allowed to estimate the

amount attributable to Brown. See United States v. Kennedy, 32 F.3d

876, 887 (4th Cir. 1994).

In the present case, there was ample evidence to support the trial

judge's decision. Several coconspirators testified to the amount of

drugs with which Brown was involved. Wilson testified that he pur-

chased twelve to thirteen ounces of cocaine base from Brown. The

conservative estimate of twelve ounces equates to 340 grams of

cocaine base. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(10),

(Measurement Conversion Table) (Nov. 1995) (one ounce equals

28.35 grams). Watts testified that she sold between thirty and thirty-

five ounces of cocaine base for Brown. The conservative estimate of

thirty ounces equates to 850 grams of cocaine base. Brown did not

object to the ninety-five grams of cocaine base attributed to him from

his association with Sutton. Pearson testified that he received two

quarter-ounce quantities of cocaine base from Brown, which equates

to approximately fourteen grams. Pearson further testified that he

received three to four half-ounce packages of cocaine base a week for

about eight to ten weeks. Using a conservative estimate of three half-

ounce quantities a week for eight weeks equates to twelve ounces or

340 grams of cocaine base. Lastly, Johnson testified that he purchased

three ounces or eighty-five grams of cocaine powder from Brown.

Johnson further testified that he saw Brown purchase nine ounces or

255 grams of cocaine powder. Thus, with regard to Johnson, the court

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attributed 340 grams of cocaine powder to Brown, which was reduced

to 299 grams of cocaine base using an eighty-eight percent conversion

ratio. See United States v. Ricco, 52 F.3d 58, 63 (4th Cir. 1995), cert.

denied, 64 U.S.L.W. 3247 (U.S. Oct. 2, 1995) (No. 95-5502). The

amounts add up to be substantially more than 1500 grams of cocaine

base. It is irrelevant that the district court's calculation of the total

amount of cocaine base was higher because under the guidelines any

amount over 1.5 kilograms of cocaine base results in a base offense

level of 38. See U.S.S.G. § 2D1.1(c) (Drug Quantity Table). Thus, we

find that the district court did not clearly err when it determined that

the Government had proven, by a preponderance of the evidence, that

more than 1500 grams of cocaine base were attributable to Brown.

See Lamarr, 75 F.3d at 972.

Brown next alleges that the evidence was insufficient to sustain a

two level enhancement for use of a dangerous weapon during a drug

offense. The sentencing guidelines provide that,"[i]f a dangerous

weapon (including a firearm) was possessed, increase[the offense

level] by 2 levels." See U.S.S.G.§ 2D1.1(b)(1). A defendant "pos-

sesses" a firearm if the weapon was merely "present, unless it is

clearly improbable that the weapon was connected with the offense."

United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994). There is

no requirement that a defendant actively employ a firearm in order to

qualify for the enhancement. See United States v. Hawthorne, 94 F.3d

118, 122 (4th Cir. 1996). Because the determination that a firearm

was present so as to justify an enhancement is a factual question, this

Court reviews the determination for clear error. See United States v.

Rusher, 966 F.2d 868, 880 (4th Cir. 1992). Both Watts and Pearson

testified that they observed Brown with a gun during an altercation

involving drugs. The district court specifically found that this testi-

mony was credible. Therefore, we find that the district court did not

clearly err when it determined that the Government had proven, by a

preponderance of the evidence, that Brown possessed a firearm during

a drug offense.

Lastly, Brown contends that the evidence was insufficient to sus-

tain a four-level enhancement for his role in the offense. The sentenc-

ing guidelines provide for a four-level enhancement where a

defendant was a leader or organizer of criminal activity that involved

five or more participants or was otherwise extensive. See U.S.S.G.

7

§ 3B1.1(a). To qualify for this enhancement, the defendant must have

been a leader or organizer of at least one of the participants to the

criminal activity. See U.S.S.G. § 3B1.1, comment. (n.2). The Govern-

ment was required to prove Brown's role in the offense by a prepon-

derance of the evidence. See McMillan v. Pennsylvania, 477 U.S. 79,

91 (1986). Furthermore, the sentencing court's determination that

Brown is an organizer or leader is subject to the clearly erroneous

standard of review. See United States v. Smith , 914 F.2d 565, 569 (4th

Cir. 1990).

The district court found in this case that Brown was the organizer

or leader of five or more individuals and that there was extensive

activity. Watts testified that "around six" people other than herself

sold cocaine for Brown. Watts further testified that she saw Brown

with pagers, cellular phones, large amounts of cash, and multi-ounce

quantities of cocaine. Sutton and Pearson also testified that they sold

drugs for Brown. Johnson testified that Brown asked him to set up

drug sales in another area. Therefore, we find that the district court

did not clearly err when it determined that the Government had

proved, by a preponderance of the evidence, that Brown was an orga-

nizer or leader of criminal activity that involved five or more partici-

pants, subjecting him to the four-level enhancement.

Accordingly, we affirm Brown's conviction and sentence. We deny

Brown's motions to file supplemental pro se briefs because his coun-

sel's formal brief sufficiently states his claims. We dispense with oral

argument because the facts and legal contentions are adequately pres-

ented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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