United States v. Shorter, 4th Cir. (1999)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4822
WILLIAM SHORTER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4823
XAVIER MARCELLUS PAUL, a/k/a
Snap,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-98-192-A)
Submitted: July 7, 1999
Decided: August 19, 1999
Before HAMILTON, LUTTIG, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Suzanne Little, Alexandria, Virginia; Robert W. Mance, III, Washington, D.C., for Appellants. Helen F. Fahey, United States Attorney,
Morris R. Parker, Jr., Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
William Shorter and Xavier Marcellus Paul appeal their convictions for conspiracy to possess with intent to distribute crack cocaine
in violation of 21 U.S.C. 846 (1994). Paul also challenges his sentence. Both Appellants allege that sufficient evidence did not exist to
support their conviction for a single conspiracy, as charged in the
indictment. Shorter challenges the sufficiency of the evidence for conspiracy to possess with intent to distribute crack cocaine and the
court's ruling allowing the grand jury testimony of a witness at trial
to be read into the record. Paul challenges the court's calculation of
the amount of drugs attributable to him and a two-level enhancement
he received for obstruction of justice. Finding no error, we affirm the
judgments.
We conclude that sufficient evidence existed to support Shorter's
conviction for conspiracy to possess with intent to distribute crack
cocaine. To prove a drug conspiracy, the prosecution must show that:
(1) an agreement to possess the drugs with intent to distribute existed
between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part
of the conspiracy. See United States v. Burgos , 94 F.3d 849, 857 (4th
Cir. 1996) (en banc), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3586
(U.S. Feb. 24, 1997) (No. 96-6868). A defendant may be convicted of
2
conspiracy without knowing all the conspiracy's details, as long as he

joins the conspiracy understanding its unlawful nature and willfully
joins in the plan on at least one occasion. See id. at 858. Once the
existence of a conspiracy is established, only a slight link between a
defendant and the conspiracy is needed to support a conviction. See
United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). Several
co-conspirators testified at trial and connected Shorter to the conspiracy. It is evident that Shorter knowingly received his supply from
conspiracy members and relied upon the supply and manufacturing
provided by the conspiracy.
Shorter and Paul argue that the evidence at trial failed to establish
the existence of a single conspiracy of which they were both a part.
A single conspiracy exists where there is one overall agreement or
general business venture, see United States v. Leavis, 853 F.2d 215,
218 (4th Cir. 1988), or where there is a permissible inference that
each actor was aware of his role in a larger organization. See United
States v. Vanwort, 887 F.2d 375, 383-84 (2d Cir. 1989). We find that
the evidence in this case established one overall agreement to distribute crack cocaine. It is not unusual for a conspiracy to exist involving
multiple suppliers. See United States v. Johnson , 54 F.3d 1150, 115455 (4th Cir. 1995) (single conspiracy even though competition for
multiple suppliers and customers); United States v. Banks, 10 F.3d
1044, 1054 (4th Cir. 1993) (single conspiracy even though parallel,
and sometimes competing, suppliers).
Shorter contends that the district court erred in admitting the grand
jury testimony of Maria Wright, a Government witness, as a past recollection recorded because the court did not make evidentiary findings that the incidents were fresh in Wright's memory at the time they
were recorded and that her testimony was an accurate reflection of her
memory. This court reviews evidentiary rulings for an abuse of discretion. See United States v. D'Anjou, 16 F.3d 604, 610 (4th Cir.
1994).
Federal Rule of Evidence 803(5) excepts from the hearsay rule a
recorded recollection. Admission of portions of grand jury testimony
is a proper use of the recorded recollection exception. See United
States v. Barrow, 363 F.2d 62, 67 (3d Cir. 1966). To be admitted, the
Government must establish the foundation requirements that (1) the
3
witness once had knowledge about the matters in the document, (2)
the witness now has insufficient recollection to testify fully and accurately, and (3) the record was made at a time when the matter was
fresh in the witness' memory and reflected the witness' knowledge
correctly. See Fed. R. Evid. 803(5); United States v. Edwards, 539
F.2d 689, 691-92 (9th Cir. 1976).
Shorter only argues that the Government did not demonstrate that
the witness' memory was fresh at the time she testified at the grand
jury proceeding and whether the transcript accurately reflected her
testimony. We conclude, considering the circumstances surrounding
Wright's grand jury and trial testimony, that the court did not abuse
its discretion in admitting the grand jury testimony in accordance with
Fed. R. Evid. 803(5). See United States v. Senak , 527 F.2d 129, 141
(7th Cir. 1975).
Paul argues that the 3598 grams of crack cocaine attributed to him
as the result of his role in the conspiracy is clearly erroneous. The
Pre-Sentence report (PSR) and the court relied upon the testimony of
three witnesses, William Roberts, Darren Brown, and Marie Lebby,
in calculating the amounts. The court reviews the trial court's factual
determinations as to drug quantity for sentencing purposes for clear
error. See United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996).
The court's decision to adopt the PSR calculation was based on the
court's assessment of the evidence at trial, and the court specifically
noted that it relied upon its determination of the witnesses' credibility.
This court is "doubly" reluctant to overturn factual findings of the
trial court when the determination rests upon the demeanor and credibility of witnesses. See D'Anjou, 16 F.3d at 614. We find that the
record does not reveal that the court clearly erred in attributing 3598
grams of crack cocaine to Paul.
Finally, Paul argues that the court erred by increasing his offense
level by two levels for obstruction of justice under U.S. Sentencing
Guidelines Manual 3C1.1 (Nov. 1998), because Paul perjured himself at trial. Perjury is conduct that warrants the enhancement. See id.
at n.3. An enhancement for perjury is sufficient if the court's finding
"`encompasses all of the factual predicates for a finding of perjury.'"
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995) (quoting
United States v. Dunnigan, 507 U.S. 87, 94-95 (1993)). The court
4
must find that a defendant "`gave false testimony concerning a material matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.'" Id.
The court applied the enhancement because Paul testified that he
never sold or dealt with drugs in the conspiracy. The court found
"[Paul's] testimony concerning the drug aspect of the case in dealing
with this was a material matter which was intended to mislead a jury
. . . ." (J.A. 951). Therefore, the district court found that Paul's testimony was willfully false and involved material matters. These findings were sufficient as a matter of law and were not clearly erroneous.
See Castner, 50 F.3d at 1279.
We therefore affirm the judgments. We deny Shorter's motion to
file a pro se supplemental brief. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
5

United States v. Shorter, 4th Cir. (1999)

Uploaded by

Copyright:

Available Formats

United States v. Shorter, 4th Cir. (1999)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Shorter, 4th Cir. (1999)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

conspiracy without knowing all the conspiracy's details, as long as he

You might also like