# Petition for Writ of Certiorari — Mabry v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 914

## Text

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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

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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
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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
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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0418%3A1. Public record. Not legal advice.