Petition for Writ of Certiorari — Pennix v. United States

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

Re ee

No. Supreme Court tf

‘TLib

In Che 8 30 1 AUG 17 som

Supreme Court Of Che Hitited: States

OCTOBER TERM, 1997

RONALD LEE PENNIX,

Petitioner,

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Joseph A. Sanzone*

*Counsel of Record

SANZONE & BAKER, P.C.

707 Clay Street

Post Office Box 1078

Lynchburg, Virginia 24504

(804) 846-4691

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond. Virginia 23219 (804) 648-3664

QUESTIONS PRESENTED

The following questions are presented by the

Petition for Writ of Certiorari:

Whether Pennix’s constitutional right to a fair

trial and due process was violated due to the trial

court’s refusal of Pennix’s proposed jury

instruction and by incorrectly instructing the jury

concerning the definition of a _ “single

transaction”?

Whether Pennix’s constitutional right to a fair

trial and due process of law were by the trial

court’s abuse of discretion in refusing to provide

the jury with a copy of the written charge to take

with them during deliberations, in light of the

fact that the court provided the jury with a copy

of the indictment?

TABLE OF CONTENTS

QUESTIONS PRESENTED.............. i

TABLE OF CASES

ATED ALTE PION Fe aos css ccccsedeiseess iil

CaCI Te MEERA OF vas isa cccesacnssuetasevnccest

Pg fe fe 8 . RN Nem eat er

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................... 3

STATEMENT OF THE CASE................ 5

A. T¥ee PAR Teo... .. osc oes secs 5

B. THE ACTION BELOW...... 5

;. The Indictment........ 5

2. ae Si oe 6

3. Pennix’s Appeal...... 6

STATEMENT OF FAG Bais cose kchii oc ncsce 7

REASONS FOR GRANTING

Pe Ry Soi 7. RR ce 10

CEP Ti valcck hehe et 18

i )

Page

APPENDIX:

OPINION, U. S. COURT OF

APPEALS, FOR THE FOURTH

CIRCUIT, MAY 20, 1998,

RECORD NO. 97-4575.......... 20

JUDGMENT ORDER, U.S.

DISTRICT COURT, WESTERN

DISTRICT OF

VIRGINIA (Lynchburg),

DATED JULY 9, 1997,

CASE NO. 96CR-70063-017..... 34

TABLE OF CASES AND AUTHORITIES

CASES:

United States v. Martin,

740 F. 2d 1352,

1361 (6" Cir. 1984.......... 10

United States v. Guinta,

925 F. 2d 758

ago 2e | | eee 11,13

nited States v. er,

567 F.2d 758, 766

(0 Cie 1098)....,...5.-. 13

United States v. Van Dyke,

14 F. 3d 415 (8" Cir. 1991)........... 16

STATUTES:

18 U.S.C.§924(c)(1)..... 5,9

ree a ot | eer 5,9

21 U.S.C.§841(a)(1)..... 5,9

yi RS BO ok SS Fee 5

OTHER: |

U.S. CONST. amend. V.... 3

snes “ey Tm Cerro.

iv ,

PETITION FOR WRIT OF CERTIORARI

Ronald Lee Pennix respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit in this case,

reproduced in the Appendix at Pages 34 - 56 herein.

OPINIONS BELOW

On April 11, 1997, Pennix proffered a jury

instruction regarding the government’s burden of proof in

establishing that he was a member of an alleged conspiracy.

The trial court refused his instruction and gave a less

definitive jury instruction, to which Pennix noted his

objection.

After the jury was charged, Pennix moved that a

written charge be provided to the jury, in light of the fact

that the trial court was allowing a copy of the indictment to

be taken to the jury room. The trial court denied his

motion.

The opinion of the United States District Court for

the Western District of Virginia at Lynchburg, Case Number

96-CR-70063-017, is unreported and reproduced in the

Appendix, herein, at Pages 20 - 33.

Subsequent to his conviction, Pennix appealed this

ruling to the United States Court of Appeals for the Fourth

Circuit, but his claims were rejected and his convictions

were affirmed in an unpublished decision, United States of

America _v, Ronald Lee Pennix, Case No. 97-4575 No

rehearing was requested.

JURISDICTION OF THIS COURT

The jurisdiction of this Court is invoked under the

due process of law clause of Amendment V of the

Constitution of the United States

The judgment of the United States District Court,

Western District of Virginia was entered July 9, 1997, and a

timely petition for appeal to the United States Court of

Appeals for the Fourth Circuit was denied May 20, 1998.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

ARTICLE V: No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger, nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of

law: nor shall private property be taken for public use,

without just compensation.

21 U.S.C.§841(a)(1)

(a) Unlawful acts

Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally -

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute or

dispense, a controlled substance...

21 U.S.C. §846

Any person who attempts or conspires to commit

any offense defined in this subchapter shall be subject to the

same penalties as those prescribed for the offense, the

commission of which was the object of the attempt or

conspiracy

18 U.S.C. §924(c)(1)

Whoever, during and in relation to any crime of

violence or drug trafficking crime (including a crime of

violence or drug trafficking crime which provides for an

enhanced punishment if committed by the use of a deadly or

dangerous weapon or device) for which he may be

prosecuted in a court of the United States, uses or carries a

firearm, shall, in addition to the punishment provided for

such crime of violence or drug trafficking crime, be

sentenced to imprisonment for five years

STATEMENT OF THE CASE

A. The Parties

Petitioner is Ronald Lee Pennix (Pennix).

Respondent is the United States of America.

B. The Action Below

l. The Indictment

Pennix was one of the subjects of a

seventeen-count indictment filed November 22,

1996, by a Grand Jury for the Western District of

Virginia. Three of those counts charged Pennix

with conspiracy to distribute cocaine in violation of

21 U.S.C. §846; distribution of cocaine base in

violation of 21 U.S.C. 841(a)(1), and possession of

a firearm in relation to drug trafficking in violation

of 18 U.S.C. §924(c)(1), as charged in Counts 1, 7,

and 8, respectively, in the indictment. Pennix was

also the subject of a criminal forfeiture pursuant 21

U.S.C. §853; however, the forfeiture proceeding

was later dismissed on the government’s motion,

forfeiture having already taken place in state court.

2. The Trial

During the trial on April 11, 1997, Pennix

raised several objections concerning jury instructions

which were overruled: an instruction regarding the

definition of conspiracy; a statement by the Court to

the jury concerning what consituted a single

transaction. In addition, Pennix requested that the

jury be given a written copy of the jury charge,

which request the Court denied.

3. Pennix’s Appeal

Pennix timely noted his appeal to the United

States Court of Appeals for the Fourth Circuit. In

an unpublished opinion, the Court of Appeals found

that the district court did not err in denying Pennix’s

proposed jury instruction regarding the evidence

necessary to sustain a conspiracy conviction by

holding that the actual jury charge substantially

included Pennix’s proposed instruction. The Court

of Appeals also found that the district court had not

abused its discretion by providing the jury with a

‘cccsniciaiiamaiaemaaitiiiieaaaaaieli

copy of the indictment but not of the jury

instructions.

Pennix did not request rehearing.

STATEMENT OF FACTS

In the latter part of 1995, the FBI and the

Central Virginia Task Force commenced an

investigation of illegal distribution of narcotics in the

area of Lynchburg, Virginia. Their investigation led

them to believe that a conspiracy existed throughout

central Virginia. They believed that Franklin West

was the leader of the conspiracy which involved,

directly or indirectly, many participants, including

Ronald Lee Pennix. It was the conclusion of the

investigators that West was receiving either crack or

powder cocaine from out-of-state and distributing

the drugs to codefendants for further distribution. It

‘was alleged that Pennix was working closely with

West, purchasing drugs from other sources and

using various apartments and houses to cook

powder cocaine into crack and to package and

distribute it.

On June 13, 1996, Lynchburg police,

operating under state authority, executed a search

warrant at Pennix’s residence at 1649 Kirby Street,

Lynchburg, Virginia, based on information they had

received from a confidential informant that Pennix

had sold him cocaine from his residence on two

occasions within a 24-hour period. Pennix was

arrested inside the residence.

As a result of the search of his residence,

police seized a digital pager, a loaded .380 handgun,

a 9 mm. handgun, a briefcase containing $5,810 and

$800 from a dresser drawer. Digital scales,

additional ammunition and additional firearms were

also found in various locations throughout the

house. Outside of the house, near an oil tank, the

officers found a can containing 22.82 grams of

cocaine base.

As a result of his state court arrest, incident

to the search on July 19, 1996, Pennix was charged

in an eight count indictment, which was returned in

the U.S. District Court in the Western District of

Virginia, alleging from January, 1993, to July 19,

ee eee ee eee

1996, that Pennix, along with seventeen others

violated federal drug and firearms laws.

On November 21, 1996, a seventeen-count

superseding indictment was filed in the U.S. District

Court for the Western District of Virginia, charging

in Count One that Pennix, and others, conspired to

pcssess with intent to _ distribute cocaine

hydrochloride and cocaine base in violation of 2]

U.S.C. §846; Count Seven charged Pennix with

distribution of cocaine base on June 13, 1996, in

violation of 21 U.S.C. §841(2)(1). Count Eight

charged Pennix with possession of a firearm in

relation to a drug trafficking crime on June 13,

1996, in violation of 18 U.S.C. §924(c)(1).

The evidence adduced at trial on April 8,

1997, showed that most of the individuals alleged to

have participated in the conspiracy did not know

Pennix and were not working in concert with

Pennix. The evidence linking Pennix to the alleged

conspiracy came from one of the indicted co-

conspirators and two other unindicted

coconspirators who claimed to have individually

purchased cocaine from Pennix on_ several

occasions.

REASONS FOR GRANTING CERTIORARL

PENNIX’S CONSTITUTIONAL RIGHT TO A

FAIR TRIAL AND DUE PROCESS OF LAW

WERE VIOLATED BY THE DISTRICT

COURT’S REFUSAL OF PENNIX’S PROPOSED

JURY INSTRUCTION AND BY INCORRECTLY

INSTRUCTING THE JURY CONCERNING THE

DEFINITION OF A “SINGLE TRANSACTION”.

The United States Court of Appeals for the

Fourth Circuit has entered a decision in this case

which conflicts with the fair trial and due process of

law provisions of the United States Constitution in

such a manner which calls for an exercise of this

Court’s supervisory power. The standard on appeal

for a court’s charge to the jury is whether the

charge, taken as a whole, fairly and adequately

submits the issues and applicable law to the jury.

United States v. Martin, 740 F. 2d 1352, 1361 (6"

Cir. 1984).

The only evidence in this case which linked

Pennix to the other codefendants was the testimony

of a codefendant and two unindicted coconspirators

who stated that they had bought cocaine from

Pennix, individually, on several occasions, but not in

relationship to any conspiracy. These isolated buys

from Pennix, and Pennix’s mere association with a

codefendant was not enough to establish Pennix’s

participation in a conspiracy. This evidence proved

nothing more than an association between them and

Pennix.

Proof of conspiracy requires ah agreement

between at least two persons to take a concerted

action; however, if the purposes of the alleged

coconspirators are different, though both aimed at

unlawful goals, there is no conspiracy. U.S.v.

Guinta, 925 F.2d 758 (4" Cir. 1991).

The evidence that Pennix sold cocaine to

other individuals on several occasions is not enough

to link him to a broader conspiracy.

When the case went to the jury on April 11,

1997, Pennix objected to the misleading nature of

following Jury Instruction given by the Court: “The

Court further tells you that proof of a single buy

relationship standing alone would not be sufficient

evidence to establish a conspiracy to distribute a

controlled substance.”

This instruction implies that if there is more

than one transaction, a conspiracy has been created.

In lieu of this instruction, Pennix requested that the

Jury be given Defendant’s Instruction 3: “A buyer

or seller of illegal substances does not automatically

become a member of a conspiracy. The prosecution

must establish beyond a reasonable doubt that the

Defendant knew the existence and scope of the

conspiracy and sought to promote its success. The

relationship of buyer and seller, absent any prior or

contemporaneous understanding beyond the mere

sales agreement, does not prove a conspiracy."

Even though the Court charged the jury that

proof of a single buy relationship is not sufficient

evidence to convict a person of conspiracy, without

more fully instructing them, as requested by Pennix,

the jury was mislead in how to apply the law to the

facts in this case.

Though the Government adduced evidence

that Pennix was involved in several separate drug

a Se

transactions with one of the named coconspirators in

the indictment, this evidence was not sufficient to

link Pennix to the overall conspiracy. By instructing

the jury that a single transaction was not proof of a

conspiracy, this instruction, without Defendant's

refused Instruction 3, allowed the jury to conclude

that more than one transaction may be proof of a

conspiracy.

The Court’s charge was defective and

prejudicial to Pennix. The charge given to the jury

allowed them to believe that proof of more than one

transaction was proof of conspiracy. The jury

should have been instructed that mere association

with conspirators is not enough to establish

participation in a conspiracy. United States _v.

Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977). A

person should not be convicted of conspiracy solely

for keeping bad company. U.S. v. Guinta, 925 F.2d

758, 766 (4" Cir. 1991).

PENNIX’S CONSTITUTIONAL RIGHT TO A

FAIR TRIAL AND DUE PROCESS OF LAW

WERE VIOLATED BY THE DISTRICT

COURT’S ABUSE OF DISCRETION IN

REFUSING TO PROVIDE THE JURY WITH A

COPY OF THE INSTRUCTIONS TO REVIEW

DURING THEIR DELIBERATIONS IN LIGHT

OF THE FACT THAT THE COURT PROVIDED

THE JURY WITH A COPY OF THE

INDICTMENT.

The district court, concerned that due to the

number of counts in the indictment, the jury may

have difficulty “keeping them straight”, provided a

copy of the indictment to the jury to take to the jury

room. Pennix moved the court, without objection

from the Government, to allow the jury to also have

a copy of the written instructions. The district court

summarily denied Pennix’s motion. The district

court abused its discretion in refusing to provide the

jury with the written charge. The indictment was

not as lengthy or complex as the charge to the jury.

Since the district court provided the jury with the

indictment, reasoning that indictment was too

complex for the jury to deliberate without it, then

the district court’s concern also should also have

been extended to the jury’s need for a copy of the

instruction for guidance in how to appy the law to

the indictment, based on the evidence presented to

them.

Ordinarily, it is not error for the trial court to

refuse to provide the jury with a copy of the written

instructions upon a motion by either party or at the

request of the jury. However, where a case, as in

the one at bar, is complex and involved a multicount

indictment, takes place over a number of days, AND

the court has provided a copy of the indictment to

the jury for its deliberations, the court abuses its

discretion in not providing a copy of written

instrucitons to the jury. Such action places undue

emphasis on the indictment without providing the

jury with guidance on the rules of law they need to

apply to the case.

It would be impossible for a juror to

accurately recall the exacting language of a jury

instruction from memory when multiple instructions

are involved. In the present case, the court’s

decision to allow the jury to possess the indictment

indicated that the court felt the jury might have

difficulty in recalling the language of the three

counts involving Pennix. If this were true one can

Only surmise that the jury would have

insurmountable difficulty in recalling instructions

which were many times more lengthy than the

indictment.

Though the decision whether to give the jury

a written copy of the court’s instructions is

discretionary, this discretion should be reviewed

where a case not only lasts for a period of days and

pertains to a complex series of transactions in a

multi-count indictment, but also where the jury has

been given a copy of the indictment. U.S. v.

VanDyke, 14 F.3d 415 (8" Cir. 1994). The

VanDyke held that court abused its discretion in not

providing the jury with a copy of the jury

instructions. The reasoning for this holding was that

by providing the jury with the government’s formal

charging document (the indictment), the court had

given the jury a one-sided view of the case by not

also providing them with a set of neutral written jury

MEO Khe

OS PN ae

Bi TURE Rae ne NEA ie es

instructions to guide them in their deliberations.

Any case which involves conspiracy is

complex because the definition of conspiracy is

complex. It is not enought to give a jury a general

understanding of conspiracy law. Such general

instruction is all that is given to a jury without a

written charge. When instructions are read for more

than thrity minutes, it is absolutely unreasonable to

assume that a jury can correctly recall the very

exacting language of a conspiracy instruction. No

jury can even be polled to determine their

recollection of the law.

Jury nullification is clearly not allowed for

obvious and well-established reasons. Neither

should the government be allowed to gain

convictions in those cases where a jury is allowed to

rely upon their mere recollection of a small portion

of a very lengthy jury charge.

The court’s acknowledgement that the jury

could not adequately recall the details of an

indictment which was much less detailed than the

charge, clearly shows that the refusal to give a

written charge was arbitrary.

N ION

By failing to properly instruct the jury

regarding what may constitute a transaction

sufficient to find that someorie has been involved in

a conspiracy, the Court encouraged the jury to

wrongfully convict Pennix of being a member of the

conspiracy as alleged in Count One of the

indictment.

By allowing the indictment, but not the

written jury instructions, to accompany the jury to

the jury room during its deliberations, the court

handicapped the jury in applying the law to the case.

The court’s abuse of discretion was prejudicial to

Pennix and cannot be said to be harmless error.

Accordingly, Pennix requests that this Court

should grant certiorar and remand this case for

retrial.

Respectfully submitted,

RONALD LEE PENNIX,

Petitioner

By ~ cR

H A. SANZO

ounsel of record for Ro

Lee Pennix

707 Clay Street, P.O. Box 1078

Lynchb»rg, Virginia 24504

Telephone: (804) 846-4691

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4575

RONALD LEE PENNX

Defendant-Appellant,

UNITED STATES OF AMERICA

Plaintiff-A ppellee,

v. No. 97-4576

FRANKLIN ROOSEVELT WEST, JR.

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Lynchburg.

James C. Turk, District Judge.

(CR-93-63)

Argued: April 9, 1998

Decided: May 20, 1998

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

United States v. Pennix

COUNSEL

aii dic iiecsisd arc Scis ith diy aban earct

United States v. Pennix

ARGUED: Joseph Abraham Sanzone, JOSEPH A.

SANZONE ASSOCIATES, Lynchburg. Virginia. for

Appellant Pennix; . Melissa Windham Friedman,

Roanoke, Virginia for Appellant West. Anthony Paul

Giorno, Assistant United States Attorney, Roanoke,

Virginia, for Appellee. ON BRIEF: Anthony F.

Anderson, Roanoke, Virginia, for Appellant West.

Robert P. Crouch, Jr., United States Attorney, Roanoke,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

OPINION

PER CURIAM:

A jury convicted Franklin Roosevelt West, Jr.

and Ronald Lee Pennix for their participation in a large

scale narcotics conspiracy. The district court sentenced

West to 292 months imprisonment and Pennix to 181

months imprisonment. West and Pennix appeal, asserting

several trial and sentencing errors. Finding no error, we

affirm.

United States v. Pennix

The evidence at trial demonstrated that West and

Pennix participated in a large, loose-knit conspiracy to

distribute crack and powder cocaine between January

1993 and November 1996 United States v. Pennix

in Lynchburg and Campbell County, Virginia. West was

a major supplier of both crack and powder cocaine,

which was then sold by many of West’s underlings,

including Pennix.

On June 13, 1996, Lynchburg police, acting on a

confidential tip that Pennix had twice sold cocaine from

his residence within a 24-hour period, arrested Pennix at

his home. In conjunction with this arrest, police seized a

loaded .380 caliber handgun and a digital pager from

Pennix’s person, 22.82 grams of crack cocaine from his

back yard hidden in a can near an oil tank, a nine

millimeter handgun from his bedroom, $800 from a

dresser drawer and $5,810 of currency stored in a

briefcase. Police also found digital scales and

ammunition in the kitchen, and firearms in other locations

throughout the house.

United States v. Pennix

Based on Pennix’s role in the conspiracy, he was

charged with and convicted of conspiracy to distribute

cocaine in violation of 21 U.S.C.A. §846 (West 1981 &

Supp. 1997), distribution of cocaine base in violation of

21 U.S.C.A.§841(a)(1) (West 1981 & Supp. 1997), and

possession of a firearm in relation to a drug trafficking

offense, in violation of 18 U.S.C.A. §924(c)(1) (West

Supp. 1997). Pennix also forfeited the $6,610 seized

during the search of his home pursuant to 2! US.C.A

§853 (West Supp. 1997).

West was charged with conspiracy to distribute

crack and powder cocaine in violation of 21 US.C.A.

§846, and with engaging in a continuing criminal

enterprise in violation of 21 U.S.C.A. §848 (West 1981

& Supp. 1997). The jury convicted West of the

conspiracy charge but acquitted him of the continuing

criminal enterprise charge.

On appeal, both Pennix and West challenge

their convictions; Pennix also challenges his sentence.

We first turn to Pennix’s arguments, and then to those of

West.

United States v. Pennix

II.

Pennix initially claims that the district court

erred in denying his proposed instruction regarding the

evidence necessary to sustain a conspiracy conviction.

Pennix’s proposed instruction states:

A buyer or seller of illegal substance does

not automatically become a member of a

conspiracy. The prosecution must establish

beyond a _ reasonable doubt that the

|djefendant knew the existence and scope of

the conspiracy and sought to promote its

success. The relationship of buyer and

seller absent any prior or contemporaneous

understanding beyond the mere sales

agreement does not prove a conspiracy.

Pennix argues that the court’s failure to

include this instruction misled the jury into believing that

a simple association with conspirators through several

mere buy-sell transactions is enough to establish

participation in the conspiracy. We reject Pennix’s claim

because the actual jury charge substantially included

Pennix’s proposed instruction.

The district court’s denial of a requested

jury instruction is reviewed only for abuse of discretion.

See United States v. Stotts, 113 F. 3d 493, 496 (4” Cir.

dla ane wea Mani hehehe

1997). A district court abuses its discretion only if the

instruction: “(1) was correct; (2) was not substantially

covered by the court’s charge to the jury; and (3) dealt

with some point in the trial so important. that failure to

give the requested instruction seriously impaired the

defendant’s ability to conduct his defense.” United States

v. Lewis, 53 F. 3d 29, 32 (4" Cir. 1995) (quoting

United States vy. Camejo, 929 F. 2d 610, 614 (11" Cir.

1992).

Here, the district court instructed the jury

that

a conspiracy is a combination or an

agreement of two or more persons to join

together to attempt some unlawful

purpose....{[MJere similarity of conduct

among various persons and the fact that they

may have associated with each other and

may have assembled together and discussed

common aims and interests does not

necessarily establish ted of the existence

of a conspiracy. f_of a sin Vv

i ing _al would not _be

vi lish racy

rn ntroll an

Accordingly, because the district court

correctly conveyed to the jury that evidence of a mere

buy-sell relationship as well as evidence of mere

United States v. Pennix

association does not constitute a conspiracy, no error

occurred.

Pennix next argues that the district court

abused its discretion in providing the jury with a copy of

the indictment but not of the jury instructions. Pennix

claims that in light of the complexity of his case, failure

to give a copy of the instructions to the jury led to unfair

confusion and predisposed the jury to the government’s

case.

We review the district court’s decision to

provide the jury with copies of the indictment and jury

instructions for abuse of discretion. ni a

Polowichak, 783 F. 2d 410, 413 (4" Cir. 1986)

(submission of indictment); United States v. Sotelo, 97 F.

3d 782, 792 (5 Cir.) submission of jury instruction),

cert. denied, 117 S. Ct. 620 (1996). Pennix’s case was

not so complex that the jury would require a copy of the

jury instructions. Pennix was tried with only West and

one other co-defendant, John Martin (who plead guilty

during the trial), on three simple drug and firearms

violations. Moreover, Pennix has not produced any

ores phcaiéi haa

Padilla il thet PR st Os A LEER DT al lO the ws

United States v. Pennix

evidence that the district court’s decision not to provide

the jury a copy of the instructions resulted in unfair

prejudice or confusion. Accordingly, the court did not

abuse its discretion.

Pennix nonetheless claims that the Eighth Circuit's

decision in United States v. VanDvke, 14 F.3d 415 (8”

Cir. 194) compels a finding in his favor. Pennix is

mistaken. Because the trial in Van Dyke pertained to a

complex series of transactions and a multiple count

indictment involving bank fraud, the Eighth Circuit found

that the district court’s failure to provide a copy of the

jury instructions along with a copy of the Pennix

indictment led to a rare instance of reversible error. Id at

422. Numerous other errors at trial, however, also

contributed to reversal in Van Dyke. The district judge

constantly made inappropriate and prejudicial comments

in front of the jury, failed to charge the jury orally with

all of the instructions, and had not reduced any of the

instructions to writing. Id, At 418, 423. Once

deliberations began, the VanDyke_ jury also expressly

requested a copy of the instructions, which the court

initially refused to provide. Id. At 423. Consequently,

the eighth circuit reasoned that “while there is perhaps no

United States v. Pennix

single instance involving error so prejudicial to warrant

reversal, we are convinced that, considered as a whole,

the rights of the defendant were so prejudiced thereby as

to deprive [him] of that fair and impartial trial.” Id. At

424 (emphasis added) (internal quotations and citations

omitted).

Pennix’s trial, by contrast, suffered from

none of these infirmities. As we have stated, Pennix’s

trial was hardly complex, and the trial judge presided

over Pennix’s case with equanimity and decorum,

committing none of the trial errors found in VanDyke.

Thus, Pennix gamers little support from a case so

factually dissimilar to his own as VanDyke.

Pennix finally claims that he district court

erred in converting the currency seized from his home

into its drug equivalent for purposes of calculating his

sentence. Pennix specifically contends that the $6,610

seized from his bedroom dresser and briefcase was not

proceeds from narcotics sales but rather income from

such lawful employment as working at a car wash,

breeding rottweiler dogs, and selling refurbished vehicles.

United States v. Pennix

Pennix, however, provided no evidence that this moncy

derived from lawful sources, and so we reject his claim.

We review the district court’s calculation of drug

amounts only for clear error. United States v. Hicks, 948

F.2d 877, 881 (4° Cir. 1991). When calculating the

amount of narcotics attributable to defendant, the court

should include all relevant quantities of drugs in this

calculation. See U.S.S.G. §2D1.1 comment. 12 (“types

and quantities of drugs not specified in the count of

conviction may be considered in determining the offense

level”); U.S.S.G. §1B1.3(a)(2) (relevant conduct

provision). Seized currency may be converted to its drug

equivalent for purposes of sentencing where the

government furnishes some evidence that the seized

currency derived from the defendant’s drug related

activity. See Hicks, 948 F. 2d at 882 (cash seized from

defendant’s home should be considered as relevant

conduct and used in determining the base offense level),

see also United States v. Otis, 127 F.3d 829, 836 (9” Cir.

1997) (where evidence connects money seized to drug

related activities, conversion is proper), cert. Denied sub

nom., Romo v. United States, 118 S. Ct. 1400 (1998):

United States v. Pennix

United States vy. Rios. 22 F. 3d 1024, 1027-28 (10" Cir.

1994)(same); United States v. Rivera 6 F.3d 431, 446

(7" Cir. 1993) (same).

Here the government demonstrated an adequate

connection between the. seized currency and Pennix’s

drug activity. At least one witness testified that he

regularly purchased narcotics from Pennix for over two

years at the same home where the money was found. The

currency seized was also an unusually large sum for

Pennix’s admitted earning capacity, and was found along

with guns, a scale, and crack cocaine. See United States

v. Jackson, 3 F.3d 506, 511 (1 Cir. 1993)(“When drug

traffickers plossess large amounts of cash in ready

proximity to their drug supply. a reasonable inference

may be drawn that the money represents drug profits”).

Pennix. on the other hand, did not offer an

alternative legitimate explanation for the source of the

drug proceeds. Pennix’s presentencing report notes that

he earned about $200 a week from his most recent job at

a car wash, and that his most sizeable earnings to date

amounted to $2,728 from hi&s eight-month stint in 1992

as a bag boy in a grocery store. Although Pennix

‘

Pee ae

BBN Se sink

United States v. Pennix

claims to have earned the seized currency breeding

rottweiler dogs, only Pennix’s father, who is hardly an

unbiased witness, testified in the vaguest generalities to

Pennix’s alternative sources of income. Because “(t]he

judge present at the sentencing hearing is in the best

position to determine the credibility of the witnesses and

the source of the currency,” the district court did not err

in discrediting Pennix’s “remotely plausible. lawful

explanation for the monies,” and thus converting the

seized currency into its drug equivalent. Jd at 512.

Ill.

Finally, we tum to West’s challenge to his

conviction.

West argues that the district court's Allen charge

impermissibly coerced the jury’s verdict because the

charge did not include a reminder to the jurors in the

majority to consider the view of those in the minority.

We review the district court's decision to give an

Allen charge as well as its contents for abuse of

discretion. United States v. Crop, 127 F. 3d 354, 359 (4"

Cir. 1997), cert. Denied, 118 S. Ct. 898 (1998). For an

Allen charge to be proper, it “must not coerce the jury.

and it must be fair, neutral and balanced.” Id at 359-60.

United States v. Pennix

see also United States v. Burgos. 55 F. 3d 933,936 (4”

Cir. 1995). We have repeatedly noted that “the most

egregious mistake that can be made in the context of an

llen charge is for a district court to suggest, in any way,

that jurors surrender their conscientious convictions.”

Cropp, 127 F. 3d at 360 (quoting Burgos, 55 F. 3d 939);