Petition for Writ of Certiorari — Mabry v. United States

i oth 4 th bt dee h call bb adel die ae b bidrh, ie Ale bo hdd

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er, Supreme Court, U.S.

GPP 1565 FILED

MAR 23 1992

ee ee

IN THE as

Supreme Court of the Hnited Stutes

OCTOBER TERM, 1992

CHARLES BILLY MABRY, a/k/a MAZE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DAVID F. TAMER, Esquire

1336 Westgate Center Drive

Winston-Salem, NC 27103

(919) 760-1273

Counsel for Petitioner

SLI TINT AEN MARCA TS SSSI NNT NN NN AN IMTS, SAINTE

Brief Printing Specialist, 1001 E. Main Street, Suite 210

Richmond, Virginia 23219, (804) 644-0700

“~~! i

QUESTION PRESENTED

1. Did the District Court err in

denying the Petition's Motion to Dismiss at

the Close of the evidence on the ground that

such was insufficient to justify a verdict of

guilty beyond a reasonable doubt by a rational

trier of fact?

PARTIES TO THE PROCEEDING

CHARLES BILLY MABRY, a/k/a Maze,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

TABLE OF CONTENTS

QUESTION PRESENTED .eree-e-eeeveess sueok

PARTIES TO THE PROCEEDING ....--+++++eii

TARTS OF CONTENTS ccccccccccccsecoccvekhad

TABLE OF AUTHORITIES ..-++e+---0> sobeca®

ASSIGNMENT OF ERROR AND

TORISDICTION oc cvcansesss were:

STATEMENT OF THE CASE .....----ee-e-es 2

STATEMENT OF THE FACTS ......--.+--+5% 7

MIS 0 6.6 6s Kae Ke ChE SOKO ROSES SAOEES 19

CONCTTIBIOE © 6.0.6. a ce-e chance ee 6 nts ne ese 25

CERTIFICATE OF SERVICE .ecsccecreveveves 26

ROOUMOEN 6c 666 sb ce da bce tceseeepeeesess 27

iii

TABLE OF AUTHORITIES

CASES:

Hyde vs. United States, 225 U.S. 347, 32 S.Ct.

793, 56 L.Ed.1114 (1912) ... ine ae

V ia, 443 U.S. 307, 99 S.ct.

2781, 61 L.Ed.2d 560 (1979) ....... #19

s, 420 U.S. 770, 95

S.Ct. 1284, 43 L.Ed.2d 616 (1975) .... 21

Pinkerton vs. United States, 328 U.S. 640, 66

S.Ct. 1180, 90 L.Ed. 1489 (1946) .... 22

, ire, 538 F.2d 569

United States vs. Blackshire

(4th Cir.), cert, denied, 429 U.S. 840, 97

S.Ct. 113, 50 L.Ed.2d 108 (1976) .... 22

ed tes vs. , 423 F.2d 681 (6th

Cam. Sever «tN et te 8 <a es ae

vs. » 311 U.S. 205, 61

S.Ct. 204, 85 L.Ed. 128 (1940) ..... 21

, 7O1l F.2d 1095 (4th

United States vs. Harris

Cir.) cert. denied, 463 U.S. 1214, 103 S.ct.

3554, 77 L.Ed.2d 1400 (1983) oe ses « an

es, 508 F.24 1271 (4th

United States ve. Jones

Cir.), cert. denied, 421 U.S. 950 (1975) 20

United States vs. Sneed, 527 F.2d 590 (4th

Cir. 1975) . ° . . ° » . + . ° - . . . - 22

a Ys. ited S$, 354 U.S. 298, 77

S.Ct. 1064, 1 L.Ed.2d 1356 [aware sa ss

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OTHER AUTHORITIES:

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21 U.8.C. 845 (a) 7. 4 -_ 7 . - . = 7. . . > 3

We Le AS 5 cc eee se oe es

Rule 29 of the Federal Rules of Criminal

Proce@ure ...++¢+2e¢+se¢s+ee 19, 30, 38

W. LaFave & A. Scott, Substantive Cripinal lay

Section 6.4 (1986) .,

ASSIGNMENT OF ERROR

The District Court erred in denying the

Petitioner's Motion to Dismiss on the ground

that the evidence was insufficient to justify

a verdict of guilty beyond a reasonabie doubt

by a rational trier of fact.

JURISDICTION

The jurisdiction of this Court is invoked

pursuant to the provisions of 28 U.S.C.

1254(1).

STATEMENT OF THE CASE

On November 28, 1989, the United States

Grand Jury for the Middle District of North

Carolina returned an 11 count indictment

against Defendants Betty Jean Murphy and

Charles Billy Mabry, also known as Maze, as

well as against three additional named

defendants. (App. 2, 14-21)

On December 26, 1989, the Grand Jury

returned a superseding indictment against

Defendants Murphy and Mabry, as well as

against four named co-defendants. (App. 2,

22-29) Count One of the indictment charged

all of the defendants which conspiracy to

distribute quantities of cocaine hydrochloride

and cocaine base, in violation of 21 U.S.C.

841(a) (1). The indictment also charged

Defendant Murphy with distribution of

quantities of cocaine hydrochloride, in

violation of 21 U.S.¢c. 845 (a). (Id. ) The

indictment charged Defendant Mabry with two

counts of distributing quantities of cocaine

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

(b) (1) (B).

Defendant Mabry was arraigned on January

2, 1990, before the Honorable Russell A.

Eliason, United States Magistrate for the

Middle District of North Carolina, sitting in

Winston-Salem. (App. 3) At that time,

Defendant Mabry entered pleas of not guilty to

all counts of the indictment. (Id. )

Defendant Murphy was arraigned on January

2, 1990, before the Honorable Richard Cc.

Erwin, Chief United States District court

Judge for the Middle District of North

Carolina, sitting in Winston-Salen. (App. 8)

At that time, Defendant Murphy entered pleas

of not guilty to all counts of the indictment.

(Id.)

On February 12, 1990, jury selection

began before the Honorable N. Carlton Tilley,

United States District Court Judge for the

Middle District of North Carolina, sitting in

Winston-Salen. (App. 4, 60) At the

conclusion of jury selection on that date,

upon hearing various motions, court adjourned

for the day. (App. 59) Presentation of

evidence by the Government began the next day,

February 13, 1990.

Judge Tilley denied the motions of

defense counsel for judgment of acquittal at

the close of the Government's evidence and at

the close of all the evidence. (App. 4, 816,

866) With regard to the motion of Defendant

Mabry for judgment of acquittal on count one

of the superseding indictment, which charged

him with conspiracy, the court reserved ruling

in both instances. (App. 817, 866)

On February 21, 1990, the jury returned

(

verdicts finding Defendants Mabry and Murphy

guilty, as charged. (App. 4) At that time,

Defendant Mabry renewed his motion for

judgment of acquittal, and such was denied by

order of the Court on April 2, 1990. (App. 4,

5)

Judge Tilley held a sentencing hearing in

Greensboro on April 27, 1990, with regard to

Defendant Mabry. (App. 5) Judge Tilley

sentenced the Defendant to 120 months in

prison, a term of Supervised release of 8

years, and a $150.00 special assessment.

(App. 176-880) On May 2, 1990, Defendant

Mabry gave notice of appeal to the United

States Court of Appeals for the Fourth

Circuit. (App. 881)

Judge Tilley held sentencing hearings in

Greensboro on May 10, 1990, and in Winston-

Salem on July 5, 1990 with regard to Defendant

Murphy. Judge Tilley sentenced Defendant

Murphy to 245 months imprisonment, a special

assessment of $100.00, as well as i2 years

supervised release. (App. 13, 1028-1031) On

July 13, 1990, Defendant Murphy gave notice of

appeal to the United States Court of Appeals

for the Fourth Circuit. (App. 1032)

On December 24, 1991, a panel of the

United States Court of Appeals for the Fourth

Circuit affirmed the Judgment of the District

Court.

STATEMENT OF THE FACTS

At trial, evidence for the Government

tended to show that:

Prior to December 1988, Ophelia Fleming

dealt cocaine and "crack" cocaine for

approximately one and one-half years. In

December 1988, Ophelia Fleming needed a new

source of cocaine, so she met with Homer

McKinley Peak, who arranged a meeting with

Betty Jean Murphy at Murphy's residence, 204

Marvin Boulevard, Winston-Salem, North

Carolina. Initially, Murphy wanted to go

through Peak when distributing cocaine to

Ophelia Fleming. The first transaction

involved 2 ounces of powder cocaine, which

Ophelia Fleming was able to distribute the

first day. Peak made arrangements on two more

occasions for Ophelia Fleming to receive

quantities of 2 ounces or more from Murphy. A

couple of weeks later Murphy began dealing

directly with Ophelia Fleming, who cooked the

powder cocaine into "crack" and had her son,

Steven "Easy" Fleming, then age 16, sell it on

the street.

In December 29, 1988, in the 1100 block

of East 15th Street, Winston-Salem, North

Carolina, Homer McKinney Peak sold .14 grams

of "crack" cocaine contained in a tinfoil

packet for $25.00 to an undercover officer of

the Winston-Salem Police Department. Later

that evening Peak was arrested by police

officers after Peak attempted to flee on foot

and a similar amount of "crack# in a tinfoil

packet was found in Peak's left front jeans

pocket.

Acting on a tip from a confidential

informant on January 13, 1989, vice officers

of the Winston-Salem Police Department stopped

Ophelia Fleming, Gail Fleming, and Shirley

Lewis in a vehicle, but found no drugs.

Ophelia Fleming and Gail Fleming later

testified that Shirley Lewis had hidden 2 1/2

ounces of "crack" cocaine contained in a

Plastic bag in her vagina so officers could

not find it.

During late March and early April 1989,

Gail Fleming and Shirley Lewis made two

flights by commercial airlines for Defendant

Murphy from Greensboro to New York City to

purchase a quantity of cocaine powder. The

second trip on April 6, 1989 was for 12

ounces, but Gail Fleming and Shirley Lewis

refused to bring the cocaine back from New

York to Winston-Salem, North Carolina because

they thought they were being followed. On

April 7, 1989, Louis Jones, Murphy's former

husband, and Jacqueline Colston, who was

pregnant and age 17 at the time, went to New

York to pick up 12 ounces of cocaine. The

ri

trips were arranged and paid for by Defendant

Murphy and Ophelia Fleming, jointly. During

the return trip, Jones and Colston were

arrested by the New Jersey State Police while

in possession of approximately 11 1/2 ounces

of cocaine. Colston agreed to telephone

Murphy and Ophelia Fleming while being

recorded by the New Jersey State Police.

Colston told Murphy and Pleming that she and

Jones were having car trouble on the New

Jersey Turnpike. During the telephone

conversation both Murphy and Ophelia Fleming

told Colston to get "the twelve" {meaning the

12 ounces of cocaine) out of the car.

In May 1989, Donna Martin began working

for Defendant Murphy as a secretary. Later

than month, Martin and Gloria Austin, another

secretary, arrived at Murphy['s residence

while Murphy was "snorting" cocaine.

Defendant Mabry and Ophelia Fleming were

10

——— ————————

present. Martin heard Murphy discussing her

drug business with Mabry and Fleming. On May

29, 1989 Martin heard Murphy talking to

Michelle Davis, Murphy's stepdaughter, by long

distance telephone, at which time Murphy

indicated to Davis that she could get one

kilogram of powder cocaine for $18,000.00

instead of the usual price of $22,00C.00.

Murphy told Davis, "You can't get a better

price, so go ahead and get the groceries".

The same day Martin drove Murphy to a Western

Union station located at Polo Road and

University Parkway in Winston-Salem. Murphy

told Martin she was going to wire transfer

$18,000.00 to Michelle Davis (who was residing

at Englewood, New Jersey) for one kiicgram of

powder cocaine. Of the $18,000.00 of the

money belonged to Mabry, who had brought the

money to Murphy earlier.

On the afternoon of May 30, 1989,

il

| (ceenaincenaeeme atin

Michelle Davis transported by commercial

airlines one kilogram of cocaine from

LaGuardia Airport in New York City, to

Greensboro at Murphy's direction. Davis then

traveled by automobile with the kilogram of

cocaine to Murphy's office/residence on Marvin

Boulevard in Winston-Salem. After Davis

arrived, Murphy had Donna Martin transport

Davis with the cocaine to the Residence Inn,

Room 424, in Winston-Salem. On May 30, 1989,

undercover officers made surveillance

photographs of Ophelia at Room 424 of the

Residence Inn. Murphy had rented that room

for three days. On the same day, Murphy gave

2 ounces of the powder cocaine to Martin and

Davis, who delivered it to Ophelia Fleming at

the Econo Lodge in Winston-Salen.

On the evening of May 30, 1989, vice

officers kept surveillance on a motel room at

the Econo Lodge in Winston-Salem which was

12

occupied by Ophelia Fleming, her daughter,

Felicia Fleming, and 16 year old Christy

McCloud. While there, Ophelia Fleming cooked

a portion of the powder cocaine into "crack",

Pelicia Fleming subsequently left the motel

and was stopped by officers for driving while

license revoked. Felicia Pleming then called

her mother at the motel room to inform Ophelia

Fleming that the motel room was under

surveillance. Ophelia Fleming then gave

Christy McCloud the cooked portion ("crack")

as well as the uncooked portion of the

cocaine. McCloud then took the cocaine to her

(McCloud's) residence.

On May 31, 1989, Christy McCloud took the

"crack" cocaine to Ophelia Fleming's residence

at 1086 East 17th Street, Winston-Salem, but

Fleming was not at home. While at Ophelia

Fleming's residence, McCloud received a

telephone call from Ophelia Fleming, who was

13

at Murphy's house. With Murphy present,

Ophelia Fleming told McCloud over the

telephone to meet her and Murphy with the

"crack" at the Gulf Mart located at 16th and

Liberty streets. Undercover officers, not

knowing at the time that McCloud was going to

meet Fleming and Murphy, arrested McCloud as

she exited the back door of Ophelia Pleming's

residence. Officers seized 49 "rocks" (11.74

grams) of “crack" cocaine.

On June 8, 1989, Defendant Mabry sold

three "rocks" (.8& grams) of "crack" cocaine to

a special agent of the Bureau of Alcohol,

Tobacco, and Firearms who was working in an

undercover capacity. The transaction occurred

near 15th Street and Cleveland Avenue in

Winston-Salem. Mabry had received the powder

cocaine from Defendant Murphy and had cooked

the powder into "crack".

During the first or second week of June,

14

1989, Michelle Davis flew to North Carolina

from New Jersey and brought a quantity of

cocaine to Betty Jean Murphy. Ophelia

Fleming, Charles Billy Mabry, and several

others came by the next day and picked up

cocaine from Murphy at her office at 204

Marvin Boulevard, Winston-Salen, North

Carolina. During the last week of June, 1989,

Michelle Davis, a girl named "Dee Dee", and

Michelle's twin daughters came to Winston-

Salem from Englewood, New Jersey by bus.

Murphy picked them up at the bus station and

transported them to her office. Martin was

present when they brought in all their

luggage. Donna Martin then took Michelle

Davis, her twin daughters, and "Dee Dee" to

the Comfort Inn, University Parkway, Winston-

Salem at Murphy's direction. MThey took all

the luggage except one overnight bag which

Murphy kept. They then proceeded to a house

15

in the 2900 block of Woodland Avenue in

Winston-Salem. Martin served as a lookout

while Mabry cooked the cocaine into "crack".

While there, Martin observed Murphy give "Dee

Dee" approximately 1/8th of an ounce of powder

cocaine and Murphy told "Dee Dee" it was for

making the trip.

On June 30, 1989, Donna Martin and an

unknown Black male named "Robert" flew to

LaGuardia Airport and met Michelle Davis.

Martin spent the night at Davis' residence in

Englewood, New Jersey. The next day, Martin

and "Robert" were unable to get cocaine for

Defendant Murphy, so they returned to Winston-

Salem. That same night, July 1, 1989, Murphy

and Julian Royster flew to New Jersey from

North Carolina and came back the next day with

an undetermined amount of cocaine. When

Murphy returned on July 2, 1989, Martin

observed Murphy "snorting" cocaine. Around

16

—

the middle of July 1989, Murphy and Royster

flew back to New Jersey and brought back an

undetermined quantity of cocaine. Martin quit

working for Murphy on July 17, 1989.

On the evening of August i, 1989,

Defendant Mabry sold 15 "rocks" (5.4 grams) of

"crack" cocaine for $300.00 to a special agent

of the Bureau of Alcohol, Tobacco, and

Firearms who was working in an undercover

capacity. The transaction occurred at the

rear of an apartment building in the Cleveland

Avenue Projects in Winston-Salem.

On August 2, 1989, Ophelia Fleming was

arrested at her residence and was subsequently

convicted on September 12, 1989 as previously

stated. Later, Ophelia Fleming began

cooperating with officers. While wearing an

electronic recording/monitoring device on

November 27, 1989, Ophelia Fleming and

Defendant Murphy discussed past and future

17

XE

drug transactions. Ophelia Fleming testified

that on at least two occasions after her

(Fleming) trial, she obtained 2-ounce

quantities of powder cocaine from Murphy.

18

ARGUMENT

THE DISTRICT COURT ERRED IN DENYING THE

PETITIONER'S MOTION FOR JUDGMENT OF ACQUITTAL

AT THE CLOSE OF THE GOVERNMENT'S EVIDENCE ON

THE GROUND THAT SUCH EVIDENCE WAS INSUFFICIENT

TO JUSTIFY A VERDICT OF GUILTY BEYOND A

REASONABLE DOUBT BY A RATIONAL TRIER OF FACT.

It is well-established that, considering

the sufficiency of the Government's evidence

to withstand a motion for judgment of

acquittal pursuant to the provisions of Rule

29 of the Federal Rules of Criminal Procedure,

the trial court must determine whether there

is substantial evidence which, taken in the

light most favorable to the Government, would

justify a verdict of guilty beyond a

reasonable doubt by any rational trier of

fact. Jackson vs. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2a 560 (1979). It is the

responsibility of the trial judge to ascertain

if the evidence of guilt is so substantial

that it would permit the trier of fact, if it

19

‘ aiemmees

were so convinced, to render a verdict of

guilty. Uni t . Jones, 508 F.2d

1271 (4th Cir.), ¢ d ed, 421 U.S. 950

(1975). Where the question of a defendant's

guilt is merely speculative, a conviction

cannot stand. 538 F.2d 1063 (4th Cir. 1976).

In weighing the sufficiency of the evidence

for the Government, it is the obligation of

the trial court to refrain from speculating on

insubstantial evidence when a man's freedom is

at stake. United States vs. Bradford, 423

F.2d 681 (6th Cir. 1970).

In order to obtain a conviction cn a

charge of conspiracy, the Government must

present evidence to establish three

constituent elements of the offense: (1) an

agreement among the defendants to do something

unlawful; (2) knowing and willing

participation by the defendants in the

agreement; and, (3) an overt act by the

20

defendants in furtherance of the purposes of

the agreement. United States vs. Falcone, 311

U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940).

The agreement among the defendants to do

something unlawful is the essence of the crime

of conspiracy. E.g. lLannell vs. United

States, 420 U.S. 770, 95 S.Ct. 1284, 43

L.Ed.2d 616 (1975); gee generally W-. LaFave &

A. Scott, Substantive Criminal Law Section 6.4

(1986); compare Yates ys, United States, 354

U.S. 298, 77 &.Ct. 1064, 1 L.Ed.2d 1356

(1957). The function of the overt act

requirement in a conspiracy prosecution is to

manifest "that the conspiracy is at work",

rather than being a project resting solely in

the minds of the conspirators or a fully

completed operation no longer in existence.

Yates vs. United States, supra. Once a

conspiracy is established, a defendant can be

found liable for any offense committed in

21

furtherance of the conspiracy while he was a

member, provided that the offense was in the

scope of or was a foreseeable consequence of

the conspiracy. Pinkerton vs. United States,

328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489

(1946): United States vs. Harris, 701 F.2d

1095 (4th Cir.) cert. denied, 463 U.S. 1214,

103 S.ct. 3554, 77 L.Ed.2d 1400 (1983); United

tat vs. Sneed, 527 F.2d 590 (4th Cir.

1975).

Once a conspiracy has been established,

it is presumed to continue until the last

overt act is committed by any of the co-

conspirators, unless the defendant proved that

the conspiracy was terminated or that he had

withdrawn from it. Hyde _ vs. United States,

225 U.&. 347, 32 8&.Ct. 793, 56 L.Ed.1114

(1912); United States vs. Blackshire, 538 F.2d

569 (4th Cir.), cert, denied, 429 U.S. 840, 97

S.Ct. 113, 50 L.Ed.2a 108 (1976).

22

It is the position of Defendant Mabry

that the evidence for the Government was

insufficient to establish that he was part of

the conspiracy headed by Defendant Murphy.

While it is true that there was evidence

tending to show that Defendant Mabry had been

engaged in selling quantities of drugs, there

is little evidence which would implicate him

in any conspiracy headed by Defendant Murphy.

Mere association with individuals who are

engaged in a criminal conspiracy does not, by

itself, justify a finding of guilt on charge

of conspiracy. Close and careful

consideration of the evidence in this cac6e

will establish that, with the exception of

testimony from law enforcement officers of

discrete sales of drugs, evidence implicating

Defendant Mabry in the alleged conspiracy came

from individuals who were actively cooperating

with the Government in the hope that they

23

would receive substantial consideration with

regard to sentencing. Such evidence must be

received with great care and with considerable

scrutiny.

When the decision of the Court of Appeals

is viewed in context of all of the facts and

circumstances surrounding this prosecution, it

is clear that the evidence is insubstantial to

justify a verdict finding the defendant guilty

beyond a reasonable of doubt by a rational

trier of fact.

24

CONCLUSION

Based upon the foregoing discussion, it

is respectfully contended by the Petitioner

that this Court issue its Writ of Certiorari

to the United States Court of Appeals for the

Fourth Circuit for the purpose of allowing

review of this cause.

This the 23 day of March, 1992.

David F. Tamer

Counsel for Petitioner

1336 Westgate Center Dr.

Winston-Salem, NC 27103

(919) 760-1273

25

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he

is an attorney at law licensed to practice in

the State of North Carolina, is an attorney

for the Petitioner and is a person of such age

and discretion as to be competent to serve

process.

That on the 23 day of March, 1992, he

served a copy of the foregoing Writ of

Certiorari by placing said copy in a first

Class post-paid envelope addressed as stated

below, which is the last known address.

ADDRESSEE:

Solicitor General of the us

One First Street NE

Washington, DC 20543

Mr. Paul A. Weinman

Assistant US Attorney

Post Office Box 1858

Greensboro, NC 27402

‘ | { Cres Pe

David F. Tamer

Counsel for Petitioner

26

}

APPENDIX

APPENDIA

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

)

UNITED STATES OF AMERICA)

Plaintiff-Appellee )

No. 90-5490

vs.

)

CHARLES BILLY MABRY, )

a/k/a Maze,

)

saturn cuumrnas

coamenanil

UNITED STATES OF AMERICA)

Plaintiff-Appellee, )

) No. 90-5685

Vs. )

)

BETTY JEAN MURPHY, )

Defendant~-Appellant)

)

Appeals from the United States District Court

for the Middle District of North Carolina, at

Winston-Salem. Norwood Carlton Tilley, Jr.,

District Judge.

(CR-89-280-WS)

Argued: October 4, 1991

Decided: December 24, 1991

28

Before MURNAGHAN, Circuit Judge, HERLONG,

United States District Judge for the District

of South Carolina, sitting by designation, and

MERHIGE, Senior United States District Judge

for the Eastern District of Virginia, sitting

by designation.

Affirmed by published opinion. Judge

Murnaghan wrote the opinion, in which Judge

Herlong and Senior Judge Merhige joined.

COUNSEL

ARGUED: David Ferris Tamer, LAW OFFICES OF

DAVID F. TAMER, Winston-Salem, North Carolina,

for Appellant Mabry; Charles LeRoy White, II,

Greensboro, North Carolina, for Appellant

Murphy. Paul Alexander Weinman, Assistant

United States Attorney, Greensboro, North

Carolina, for Appellee. ON BRIEF: Robert H.

Edmunds, Jr., United States Attorney,

Greensboro, North Carolina, for Appellee.

OPINION

MURHAGHAN, Circuit Judge:

On December 26, 1989, a Grand Jury

returned an indictment against defendants

Charles Billy Mabry and Betty Jean Murphy, as

well as against four named co-defendants.

Count One of the indictment charged all of the

29

——

defendants with conspiracy to distribute

cocaine hydrochloride and cocaine base

("crack") in violation of 21 U.s.c. Sec.

841(a)(1) (1981). "The indictment also charged

Murphy with distribution of cocaine in

violation of 21 U.S.C. Sec. 845(a) (1981).

Mabry was charged with two additional counts

of distributing cocaine in violation of 212

U.S.C. Sec. 841(a)(1) and (b) (1) (B) (1981).

Mabry entered a plea of not guilty to all

charges at his arraignment on January 2, 1990.

Murphy similarly entered a not guilty plea.

The jury found both defendants guilty on all

charges. The district judge denied all Rule

29 motions for acquittal.

Mabry was sentenced to 120 months in

prison, and eight years of supervised release.

Murphy was sentenced to 245 months in prison,

and twelve years ofr Supervised release. Both

defendants gave timely notices of appeal,

39

which we have consolidated for hearing.

I.

The case involved an extensive drug

conspiracy centered around Murphy. There is

ample evidence of the involvement of many

others in the conspiracy, including defendant

Mabry. Beginning as early as December 1988,

Murphy conspired with others, including Homer

Peak and Ophelia Fleming, to purchase cocaine

and distribute it in the Winston-Salem area.

At the beginning of Murphy's relationship with

Fleming, Peak acted as the middleman between

the two, with Murphy supplying him with

quantities of drugs, that he would then give

to Fleming who, with the assistance of her son

Steven "Easy" Fleming, would sell the

substance. After two such arranged transfers,

Murphy began dealing directly with Fleming,

who had proven her ability to sell the drugs

quickly.

31

<< UL

Peak was arrested on December 28, 1988,

for selling .14 grams of orack to an

undercover police officer. Fleming and

members of her family and others were stopped

by police responding to a tip on January 13,

1989. The successfully concealed 2.5 grams of

crack they had in their possession and thus

were not taken into custody.

in March and April of 1989, Fleming and

another woman, Shirley Lewis, made two trips

on commercial airlines and purchased or

attempted to purchase drugs. The trips were

Sponsored and paid for by Murphy. During the

second trip, on april 7, 1989, Fleming and

Lewis refused to bring the cocaine they had

purchased in New York back to North Carolina

because they believed they were being

followed. Murphy sent her former husband and

another woman to New York to pick up the

drugs. On the return trip, New Jersey Police

32

| anil aes

officers arrested them and discovered 11.5

grams of cocaine in the car. One of the

couriers was recorded by New Jersey officials

on the telephone conversing with Murphy. The

courier told Murphy that he was having car

trouble, and Murphy reminded him to "get the

twelve" (referring apparently to the eleven

and one-half grams of cocaine) out of the car.

In May of 1989 Donna Martin, who became

the key witness connecting Mabry to the

conspiracy, began to work for Murphy. Martin

witnessed Murphy ingesting cocaine in the

presence of Mabry on at least one occasion.

She witnessed Mabry at the 204 Marvin

Boulevard office of Murphy, and she often

overheard discussions between the two about

Mabry owing money to Murphy.

On May 29, 1989 Martin heard Murphy

discussing a bargain drug purchase. Murphy

told Martin that she would be purchasing a

33

_

quantity of drugs for $18,000.00, and Martin

testified that $16,000.00 of that had come

from cash provided by Mabry.

On June 18, 1989, Mabry sold three

"rocks" of crack (.8 grams) to a special agent

of the Bureau of Alcohol, Tobacco, and

Firearms. Mabry had received the powder

cocaine from Murphy and had transformed it

into "crack" himself. Later in June, Mabry,

along with others, was witnessed picking up

cocaine from Murphy at her office.

On August 1, 1989, Mabry sold 5.4 grams

of crack to an undercover police officer. The

next day, Fleming was arrested and she called

Murphy from custody. The conversation was

taped, and it included discussion of past and

future drug transactions.

ir.

We turn first to the sufficiency of the

conspiracy testimony. In order to justify a

34

ig

conspiracy conviction, the government must

show, first, that a conspiracy existed; then,

that the defendant had knowledge of the

conspiracy; and finally, that the defendant

voluntarily became a part of the conspiracy.

United States vs. Badalato, 701 F.2d 915, 920

(11th Cir. 1983). Commission of an over act

is not required to prove a drug conspiracy.

United States vs. Goldman, 750 F.2d 1221, 1226

(4th Cir. 1984). "Proof of a conspiracy may

of course be by circumstantial evidence; it

need not and normally will not he by direct

evidence." United States vs. Giunta, 925 F.2d

758, 764 (4th Cir. 1991). Complete knowledge

of all aspects of the conspiracy is not

required:

[O]}ne may become a member of a

conspiracy without full knowledge of

all of its details, but if he joins

the conspiracy with an understanding

of the unlawful nature thereof and

willfully joins in the plan on one

occasion, it is sufficient to

convict him of conspiracy, even

35

oe

through he had not participated

before, and even though he played

t

only a minor part. n

vs. Roberts, 881 F.2d 95, 101 (4th

Cir. 1989).

The totality of the circumstances shown

by the goverament will often suffice to infer

the agreement necessary for a conspiracy

conviction. United States vs. Crockett, 813

F.2d 1310, 1316 (4th Cir. 1987). The standard

for reviewing a conspiracy conviction is that

“the evidence and all reasonable inferences

arising from it must be viewed in the light

most favorable to the government, the

prevailing party”. United States vs.

Laughman, 618 F.2d 1067, 1075 (4th Cir. 1980).

And the issue on review is whether there is

enough evidence so viewed to justify a

conélusion of guilt by a trier of fact beyond

a reasonable doubt. Glasser vs United

States, 315 U.S. 60, 90 (1942).

The conviction of Mabry for conspiracy

36

with Murphy was amply proven. There was

evidence of Murphy's extensive conspiracy, of

Mabry's consistent involvement with Murphy, of

his presence when she ingested drugs, of his

discussions with her about owing her money, of

his providing her $16,000.00 to supplement

drug purchase funds, of his appropriating

drugs from Murphy's office, and of his selling

crack on two occasions (one sample of which

was produced from a quantity of cocaine

obtained by Mabry from Murphy) .

Mabry has argued that "there is little

evidence which would implicate [him) in any

conspiracy." Though there is more than just a

little evidence here, a little evidence is

sufficient to uphold a District Court's denial

of a motion for acquittal. All that the

government must show is that the trier of fact

could reasonably infer from the evidence,

viewed in the light most favorable to the

37

government, that the defendant was a willing

participant in an ongoing conspiracy. There

is more than enough evidence to support such

an inference in this case, and accordingly,

the district court's denial of the Rule 29

motion must be affirmed.

Accordingly, the decisions of the

district court are

AFFIRMED.

38