United States v. Goodson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5904
RODNEY GOODSON, a/k/a Goody,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-6524
RODNEY GOODSON, a/k/a Goody,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-91-189)
Submitted: December 31, 1996
Decided: January 31, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Maria T. Goldcamp, ROBINSON & RICE, L.C., Huntington, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
John L. File, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Rodney Goodson was part of a major drug conspiracy which trans-
ported cocaine from Columbus, Ohio, to Huntington, West Virginia,
where it was turned into crack and sold. Goodson was frequently
employed to transport the drugs, often receiving a small amount of
cocaine or crack for his personal use as payment. Goodson also sold
cocaine and crack, which he obtained from suppliers in Ohio, to deal-
ers and users in West Virginia. Goodson was convicted by a jury of
one count each of conspiracy to distribute and possess with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846(1994), and possession of cocaine and cocaine base with intent to dis-
tribute, in violation of 21 U.S.C. § 841(a)(1) (1994), and sentenced to
concurrent 235-month sentences. During sentencing, the trial court
found Goodson liable for approximately 1900 grams of crack cocaine.
The majority of the evidence against Goodson came from the testi-
mony of co-conspirators. After his conviction, Goodson filed two
motions for a new trial, alleging that one of the witnesses lied, but
both motions were denied. On appeal, Goodson alleges six errors: (1)
that his convictions should be reversed because exempted persons
served on the jury; (2) that the district court's failure to sequester two
witnesses during the trial warrants reversal of his convictions; (3) that
the district court abused its discretion by denying his motion for a
new trial based on newly discovered evidence; (4) that the district
erred in its determination of the amount of drugs attributable to him;
(5) that trial defense counsel rendered ineffective assistance; and (6)
that the trial judge erred in his instructions concerning the elements
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of proof. Finding no error, we affirm Goodson's convictions and sen-
tence and the district court's order denying Goodson's motion for a
new trial.
Goodson waived the issue concerning juror qualification at trial by
failing to make a timely objection. 28 U.S.C. § 1867(a) (1994);
United States v. Webster, 639 F.2d 174, 180 (4th Cir. 1981), modified
on other grounds, 669 F.2d 185 (4th Cir. 1982). Moreover, we find
no plain error. See generally United States v. Olano, 507 U.S. 725,
731-32 (1993) (test for plain error); United States v. Cedelle, 89 F.3d
181, 184-85 (4th Cir. 1996) (same). Goodson's argument concerning
the failure to sequester two witnesses was likewise waived, and there
was no plain error.
This court reviews the district court's decision denying Goodson's
motion for a new trial for an abuse of discretion. United States v.
McMahan, 852 F.2d 337, 339 (4th Cir. 1988). Motions for a new trial
based on newly discovered evidence are not looked upon favorably.
Id. We find that the district court did not abuse its discretion because
Goodson failed to satisfy the requirements set forth in United States
v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993). Goodson is merely
attacking the credibility of one of the primary witnesses against him,
which he also attempted to do at trial.
The district court's factual determination concerning the amount of
drugs attributable to Goodson should be upheld absent clear error.
United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398);
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir.), cert. denied,
___ U.S. ___, 62 U.S.L.W. 3861 (U.S. June 27, 1994) (No. 93-9131).
In the present case, there was ample evidence to support the trial
judge's decision. Several co-conspirators testified that Goodson
played a major role in the conspiracy, was fully aware of the wire
transfers of drug proceeds, and transported large quantities of cocaine
and crack.
As a member of the conspiracy, Goodson is accountable for all of
the drugs reasonably foreseeable to him. United States v. Irvin, 2 F.3d
72, 78 (4th Cir. 1993), cert. denied, 510 U.S. 1125 (1994); United
States v. Gilliam, 987 F.2d 1009, 1012-13 (4th Cir. 1993). Since the
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amount of drugs seized did not reflect the scale of the offense, the dis-
trict court was allowed to estimate the amount attributable to Good-
son. United States v. Kennedy, 32 F.3d 876, 887 (4th Cir. 1994), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No.
94-6500). Goodson's claims that the witnesses against him were not
credible are not sufficient to rebut the findings contained in the pre-
sentence report. United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990).
A claim of ineffective assistance of counsel is not cognizable on
direct appeal unless counsel's deficiency clearly appears on the face
of the record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991). There is no such showing on this record.
Finally, Goodson argues that the trial judge erroneously failed to
instruct the jury that in order to convict him of possession and distri-
bution of cocaine base/crack, the Government must prove that the
substance was prepared with sodium bicarbonate (baking soda) and
that Goodson knew that this was how cocaine base/crack was pre-
pared. This issue was waived at trial by virtue of Goodson's failure
to object to the instructions, and we find no plain error.
We therefore affirm the findings and sentence of the district court
(No. 94-5904), and the district court's order denying Goodson's
motion for a new trial (No. 95-6524). Goodson's motions to file a pro
se supplemental brief in both cases are granted. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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