United States v. Plummer ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4488
TREMAINE F. PLUMMER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-353)
Submitted: March 30, 1999
Decided: April 29, 1999
Before ERVIN and TRAXLER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert E. Walker, Jr., Steven T. Harper, JOHNSON & WALKER,
P.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Stephen W. Miller, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Tremaine F. Plummer appeals his conviction and 300-month sen-
tence for conspiracy to distribute crack cocaine, 21 U.S.C.A. § 846(West Supp. 1998), and distribution of crack, 21 U.S.C.A. § 841(West 1981 & Supp. 1998). Finding no error, we affirm.
I
In late 1994, Plummer became the target of a Drug Enforcement
Administration (DEA) task force investigation of narcotics activity in
the Richmond, Virginia area. Jotannun Lee, a large-scale narcotics
trafficker who had engaged in prior drug dealings with Plummer,
agreed to cooperate with authorities in their investigation of Plummer.
As part of his cooperation, Lee contacted Plummer to negotiate the
purchase from Plummer of one-half kilogram of crack cocaine.
At trial, the government introduced tapes of three telephone con-
versations and one face-to-face discussion between Plummer and Lee
during which the men planned the sale to Lee of the drugs. Addition-
ally, an audio-visual tape of the actual transaction on July 31, 1995,
was introduced. During that transaction, Lee paid Plummer $6,000 for
247.1 grams of crack. Lee and the officer who monitored the conver-
sations and transaction testified about them at trial. Additionally, sev-
eral drug dealers with whom Plummer previously had conducted
business testified. Haile Hopson admitted to selling significant
amounts of crack to Plummer on numerous occasions. James Smith
and Benjamin Boyd testified that Plummer had often sold them large
amounts of crack for resale.
II
Plummer raises four challenges to his convictions. First, he con-
tends that allowing the jury to listen to the tapes through headsets,
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instead of playing the tapes for all in the courtroom to hear, violated
his right to a public trial. Because the use of ear phones, headsets, and
the like does not transform an otherwise public trial into a non-public
one, see D'Aquino v. United States, 192 F.2d 338, 365 (9th Cir.
1951), we reject this contention.
Plummer also complains that the district court erred in permitting
the jury to review transcripts of the tapes. Of particular concern to
Plummer is the district court's failure to preview the transcripts before
the jury used them. We note that the district court cautioned the jury
that the transcripts were not evidence, that what the jurors heard--not
what they read--constituted evidence in the case, and that the jurors
were to ignore any inaudible parts of the tapes. Further, Plummer's
attorney, who had access to the tapes and transcripts prior to trial, did
not object to their accuracy before trial. Finally, both Lee and the offi-
cer who taped the conversations testified to the accuracy of the tran-
scripts. Under these circumstances, we conclude that allowing the
jury to review the transcripts was not an abuse of discretion. See
United States v. Collazzo, 732 F.2d 1200, 1203 (4th Cir. 1984).
Plummer contends that his conviction cannot stand because the dis-
trict court erred in denying his request for a jury instruction that he
could not be convicted of conspiracy to distribute crack because Lee
was acting as a government agent when he bought crack from Plum-
mer on July 31. There was overwhelming testimony that Plummer
engaged in significant drug deals with Boyd, Hopson, and Smith.
Additionally, Lee testified about transactions with Plummer prior to
July 31. Given the substantial evidence of Plummer's widespread
drug dealing prior to July 31, the district court did not abuse its dis-
cretion in denying the requested instruction. See United States v.
Stotts, 113 F.3d 493, 496 (4th Cir. 1997).
Finally, we find no merit to Plummer's claim, which he did not
raise below, that it is a violation of 18 U.S.C.A.§ 201(c) (West Supp.
1998), for the United States to offer witnesses the chance of sentenc-
ing leniency in exchange for their testimony. See United States v.
Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999) (en banc).
III
Plummer's remaining arguments challenge his sentence. He first
argues that the district court erred in sentencing him according to the
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guidelines for crack, rather than powder, cocaine. Because there is
direct evidence in the record that Plummer trafficked in crack
cocaine, we reject this contention. Next, Plummer contends that the
sentencing guidelines discriminate against blacks through different
treatment of crack and powder cocaine. We have previously rejected
this contention and that decision is controlling in this case. See United
States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995). Finally, Plummer
contends that the term cocaine base is void for vagueness. We also
have rejected this contention in a decision that controls here. See
United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997).
IV
We accordingly affirm Plummer's convictions and sentence. We
dispense with oral argument because the facts and legal arguments are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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