Virginia Lawyers Weekly

A defendant who was reputed to be the “biggest dealer” at Shriver’s Motel in Luray, Virginia, a dealer who “never ran out” of cocaine, has his multiple firearms and drug distribution convictions affirmed by the 4th Circuit, despite his several challenges to the sufficiency of the evidence, the district court’s jury instructions and his sentencing proceeding.

Defendant’s contentions on appeal are grouped into five categories. First, he maintains that the district court deprived him of due process by conducting some of the trial proceedings off the record. Defendant is not entitled to rely on the court’s alleged failure to comply with the Court Reporter Act by conducting the jury charge conference “off the record,” thus allegedly denying defendant a verbatim account of his lawyers’ objections to jury instructions. Counsel were responsible for placing their objections on the record.

Second, he contests the firearm offense conviction, asserting the insufficiency of the evidence. Trial evidence linked defendant to multiple firearms during the course of the conspiracy offense. Assessed in the light most favorable to the prosecution, there was substantial evidence that defendant used, carried or possessed a firearm in furtherance of the conspiracy offense charged in this count.

Third, he challenges the jury instructions on multiple grounds. He contends the trial court should have given the jury a multiple-conspiracy, as opposed to a single-conspiracy, instruction on count I. However, there was no instructional error, let alone plain error, on this point. The fact that defendant may have competed with some of his coconspirators did not defeat the prosecution’s theory that they were all members of a single conspiracy. Also, the evidence showed that the multiple drug dealers at Shriver’s Motel engaged in a consistent series of smaller transactions, which comprised a single conspiracy. Nor did the district court commit plain error in instructing the jury that it was entitled to infer consciousness of guilt if it found that defendant had sought to conceal his identity after learning of the indictment, as there was sufficient evidence that defendant sought to conceal himself after the indictment. And overwhelming evidence established that defendant was personally responsible for the conspiracy’s distribution of 50 grams or more of cocaine.

Fourth, defendant contends that the court committed two sentencing errors. We reject both contentions, that the district court erred in attributing 1.5 kilograms of cocaine base to defendant at sentencing, and that the court contravened defendant’s Fifth Amendment rights in imposing a $25,000 fine.

Finally, he asserts that the prosecution engaged in misconduct related to its discovery obligations under both Fed. R. Crim. P. 16 and Brady v. Maryland. Although we hardly approve of the handling of such discovery, we nonetheless reject defendant’s contention.

Defendant claims that in response to his Rule 16 request, the prosecution prepared a binder that “containing all information regarding the numerous controlled buys that make up the heart of the Government’s evidence in this case.” The prosecution, however, refused to provide a copy of the binder’s contents to defendant’s lawyers, notwithstanding repeated requests.

Defendant was merely allowed to have his lawyers inspect the binder’s contents and, even then, the lawyers had to conduct their inspection in the U.S. Attorney’s office.

Put simply, the prosecution failed to comply with its obligations under Rule 16, which allows for inspection and copying.

Nevertheless, defendant fails to show how he was prejudiced by the prosecution’s failure in this regard.

Defendant contends the prosecution violated Brady by not disclosing that tapes of a government witness’s debriefings failed to refer to or incriminate defendant, and therefore constituted exculpatory and impeachment materials. However, defendant is unable to show how the undisclosed evidence was either favorable or material with respect to the two counts of conviction.

We reject each of defendant’s contentions and affirm his convictions and sentences.

Concurrence

Niemeyer, J.: I concur in the court’s opinion. I add, however, my continuing objection to our application of U.S. v. Collins, 415 F.3d 304 (4th Cir. 2005), which remains inconsistent with well established conspiracy law, as defined by 21 U.S.C. § 846 and governing Supreme Court decisions.

U.S. v. Jeffers (King, J.) No. 06-5289, June 17, 2009; USDC at Harrisonburg, Va. (Conrad) Katherine A. Warren for appellant; Jean B. Hudson, U.S. Att’y Office, for appellee. VLW 009-2-110, 23 pp.

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