United States v. Copney ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4095
DOUGLAS WINSLOW COPNEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-132)
Submitted: April 21, 1998
Decided: June 22, 1998
Before WILKINS and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Mark T. Calloway, United States
Attorney, William Boyum, Assistant United States Attorney, Ashe-
ville, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Douglas Winslow Copney was convicted by a jury of conspiracy
to possess with intent to distribute and to distribute cocaine base in
violation of 21 U.S.C. § 846 (1994). He was sentenced to 188
months' imprisonment and five years' supervised release. He timely
appeals both his conviction and sentence. We affirm.
Copney first contends that the evidence was insufficient to estab-
lish that he was part of a conspiracy to distribute narcotics. We review
sufficiency of the evidence claims de novo, sustaining the verdict if
the evidence, when viewed in the light most favorable to the govern-
ment, is such that any rational trier of fact could find guilt beyond a
reasonable doubt. See United States v. Burgos , 94 F.3d 849, 862 (4th
Cir. 1996) (in banc), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3586(U.S. Feb. 24, 1997) (No. 96-6868); United States v. Johnson, 54 F.3d
1150, 1153 (4th Cir. 1995). The appellate court must not analyze each
piece of evidence in isolation, but must base its review on the com-
plete picture that the evidence presents, bearing in mind that credibil-
ity determinations are the province of the jury and are not subject to
review. See Burgos, 94 F.3d at 863.
In a conspiracy prosecution, the government must prove that there
is an agreement between two or more persons, and an intent to do an
unlawful act. See id. at 860. A conspiracy is generally proved by cir-
cumstantial evidence, id. at 857-58, which"may consist of a defen-
dant's ``relationship with other members of the conspiracy, the length
of this association, [the defendant's] attitude [and] conduct, and the
nature of the conspiracy.'" Id. at 858 (quoting United States v.
Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)). A defendant may be
a member of a conspiracy without knowing its full scope, all of its
members, or taking part in all of its activities. See Johnson, 54 F.3d
at 1154 (quoting United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
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1993)). "A defendant need not have had knowledge of his coconspira-
tors, or knowledge of the details of the conspiracy." Brooks, 957 F.2d
at 1147 (citations omitted).
Copney alleges that the evidence did not establish a conspiracy;
rather, he contends that the evidence established that he associated
with co-defendant Richard Darity and sold drugs to two different peo-
ple on several occasions. However, the Government's evidence estab-
lishing the conspiracy consisted of the testimony of several admitted
drug dealers who testified that they bought crack from Darity and
Copney. Government witness Irwin Benjamin testified that he
obtained drugs for distribution from Copney over a time period of
several months, and that he saw Copney at Darity's house multiple
times. Oric Coleman testified that he purchased drugs from Copney
about twice per month and that on two occasions, he purchased drugs
from Copney at Darity's house. Coleman also testified that most of
the times when he went to Darity's house, Copney was there. In addi-
tion, Coleman stated that he heard Copney and Darity talking about
purchasing drugs. Government witness Leroy Darity, Richard Dari-
ty's cousin, testified that he purchased drugs from Darity. He saw
Copney at Richard Darity's house approximately fifteen times and
overheard conversations between Darity and Copney on approxi-
mately ten occasions; in those conversations, Darity instructed Cop-
ney to deliver crack to various people. In light of this evidence, we
find that the evidence was sufficient to convict Copney of conspiracy
to possess with intent to distribute and to distribute cocaine base. See
Burgos, 94 F.3d at 862.
Copney next contends that the district court erroneously admitted
hearsay statements under Fed. R. Evid. 801(d)(2)(E). At trial and over
defense objections, Benjamin testified that alleged drug dealer Fred-
die Hill stated that he had gotten drugs from Darity. Hill did not tes-
tify. Copney contends that admission of this hearsay testimony was
improper because the Government never established a conspiracy
between Hill and Benjamin or between Hill and Copney as required
by Rule 801(d)(2)(E).
We review the district court's evidentiary rulings for an abuse of
discretion. See United States v. Brooks, 111 F.3d 365, 371 (4th Cir.
1997). "In order to find a district court's error harmless, we need only
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be able to say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judg-
ment was not substantially swayed by the error." Id. (citation omit-
ted). Without deciding whether the district court erred by admitting
Benjamin's hearsay testimony into evidence in violation of Rule
801(d)(2)(E), we find that any such error was harmless. There was no
mention of Hill's drug dealings with Darity other than Benjamin's
isolated remark, and there was an overwhelming amount of evidence
establishing that Copney was conspiring with Darity to distribute
drugs. Accordingly, we find that any error was harmless. See Brooks,
111 F.3d at 371.
Next, Copney claims that he should not have been held accountable
at sentencing for 500 grams of cocaine base because the evidence at
trial did not establish that amount. The Government bears the burden
of proving by a preponderance of the evidence the quantity of drugs
for which a defendant is to be held responsible at sentencing. See
United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The
district court's factual determination concerning the amount of drugs
attributable to an appellant should be upheld absent clear error. See
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. 1994). In addi-
tion, the district court is afforded broad discretion as to what informa-
tion to credit in making its calculations. See United States v.
Falesbork, 5 F.3d 715, 722 (4th Cir. 1993). Finally, as a member of
the conspiracy, Copney is accountable for all of the drugs reasonably
foreseeable to him. See United States v. Irvin , 2 F.3d 72, 78 (4th Cir.
1993); Gilliam, 987 F.2d at 1012-13.
Over the objections of defense counsel, the district court found
Copney responsible for possession of more than 500 grams of cocaine
base. The court's decision was based on the testimony at trial and the
testimony at sentencing of an FBI agent. At trial and sentencing, the
agent's testimony established that Copney personally sold: (1) at least
198 grams of crack cocaine to Benjamin; (2) 226.8 grams of crack
cocaine to Oric Coleman; and (3) multiple ounce-quantities of crack
cocaine to Leroy Darity, Freddie Hill, and Dante Mosley, individu-
ally.* Thus, we find that the district court did not clearly err when it
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*The Sentencing Guidelines state that one ounce of crack is equivalent
to 28.35 grams. See U.S. Sentencing Guidelines Manual § 2D1.1(c)
(Measurement Conversion Table) (1997).
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determined that the Government had proven by a preponderance of
the evidence that more than 500 grams of cocaine base were attribut-
able to Copney. See Lamarr, 75 F.3d at 972.
Finally, Copney contends that the Government failed to establish
by a preponderance of the evidence that the substance he distributed
was crack cocaine. See United States v. James , 78 F.3d 851, 857-58
(3d Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3259 (U.S.
Oct. 7, 1996) (No. 95-9224). Although the Government had no drug
samples to test and present into evidence, the Government established
that Copney distributed crack cocaine through the testimony of the
"expert" drug dealers. See United States v. Hall, 109 F.3d 1227, 1236
(7th Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3258 (U.S.
Oct. 6, 1997) (No. 96-9561) (finding sufficient the testimony of
numerous lay witnesses who identified the substance defendants dis-
tributed to them as crack cocaine); United States v. Cantley, 130 F.3d
1371, 1379 (10th Cir. 1997), cert. denied, ___ U.S. ___, 1998 WL
19480 (U.S. Feb. 23, 1998) (No. 97-7468) (finding no error in the dis-
trict court's reliance on the testimony of witnesses concerning their
personal drug transactions with the defendant to identify the sub-
stance as crack cocaine). Benjamin testified that Copney sold crack
cocaine to him. He also stated that he never sold anything but crack
cocaine and that none of his customers ever complained that the sub-
stance Benjamin sold to them was anything other than crack. Cole-
man also testified that he bought crack cocaine from Copney, and
Leroy Darity testified that he bought crack cocaine from Darity and
overheard Darity and Copney discussing delivery of crack cocaine.
Finally, Benjamin and Coleman testified that they bought crack
cocaine from Copney in a large rock and then cut the rock down
themselves for resale. In sum, there was sufficient evidence in the
record to support, by a preponderance of the evidence, that the sub-
stance at issue was crack cocaine, especially considering that there
was no evidence to the contrary. See Hall, 109 F.3d at 1236; Cantley,
130 F.3d at 1379.
Accordingly, we affirm Copney's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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