United States v. Jones ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5291
ROGER DALE JONES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5292
CYNTHIA DODSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5360
EARL NATHANIEL LOGAN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5361
DONALD EDWARD WOODS, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5370
LITTLE TOM CHILDRESS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5371
TINA MICHELLE REID,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5372
TIMOTHY BAKHARI MOTLEY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5373
LAWSON JACOB DODSON,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-94-106)
2
Argued: April 11, 1997
Decided: April 22, 1998
Before RUSSELL* and WIDENER, Circuit Judges, and DUFFY,
United States District Judge for the
District of South Carolina, sitting by designation.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded with instructions by
unpublished opinion. Judge Widener wrote the opinion, in which
Judge Duffy joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Erwin Wray, Roanoke, Virginia; Mark D. Kidd,
OSTERHOUDT, FERGUSON, NATT, AHERON & AGEE, Roa-
noke, Virginia; Brian H. Turpin, Danville, Virginia; John Stuart
Bruce, FEDERAL PUBLIC DEFENDER'S OFFICE, Greensboro,
North Carolina; Joseph M. Garrett, Sr., William Allan Garrett, Sr.,
GARRETT & GARRETT, Danville, Virginia, for Appellants. Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Vir-
ginia, for Appellee. ON BRIEF: Kirk A. Ludwig, MARTIN, HOP-
KINS & LEMON, P.C., Roanoke, Virginia, for Appellant Logan;
Dorothy P. Dillon, Rocky Mount, Virginia, for Appellant Woods.
Robert P. Crouch, Jr., United States Attorney, George E. Buzzy, Spe-
cial Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
*Judge Russell participated in the hearing of this case at oral argument
but died prior to the time the decision was filed. The decision is filed by
a quorum of the panel. 28 U.S.C. § 46(d).
3
OPINION
WIDENER, Circuit Judge:
This case arises from the prosecution of 27 defendants for operat-
ing a cocaine conspiracy in the Danville, Virginia, area. Eight of the
defendants have joined in this appeal to challenge their convictions on
various grounds. The only assignments of error we find meritorious,
however, are the claims of one defendant that his conviction under 18
U.S.C. § 924(c), for using or carrying a firearm during a drug traffick-
ing crime, should be vacated and he be subject to a new trial in light
of Bailey v. United States, 516 U. S. 137 (1995). We therefore vacate
this § 924(c) conviction and associated sentence but otherwise affirm
the judgment of the district court.
I.
In late August 1994, a grand jury returned an indictment against 25
defendants, including appellants Roger Jones, Cynthia Dodson, Earl
Logan, Donald Woods, Little Tom Childress, Tina Reid,1 and Timo-
thy Motley. A superseding, 71-count indictment was returned in Sep-
tember 1994. This indictment added several offenses and two
defendants, including appellant Lawson Dodson. The indictment's
first count charged the defendants generally with conspiracy to dis-
tribute and to possess with intent to distribute cocaine and crack
cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The remain-
ing counts charged various defendants with substantive drug and fire-
arms violations under Titles 18 and 21, U.S. Code. Defendant Lawson
Dodson was also named in a criminal forfeiture count.
On November 18, 1994, the district divided the defendants into two
groups for trial. The trial of the first group commenced on November
30, 1994. The eight defendants involved in this appeal were placed
into the second group, comprising ten defendants in all. This latter
group stood trial beginning January 23, 1995.
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1 The indictment spells Tina Reid's name "Reid," but other documents
spell the name "Reed." We use Reid since that will be in the style of the
case.
4
The trial record indicates that a large group of people, a number of
whom were surnamed Dodson and were related, conducted an exten-
sive series of crack and powder cocaine sales out of three main loca-
tions in the Danville area for several years. These three locations were
called "the farm," "the fortress," and"Frazier Road." Carroll Dodson,
who is not involved in this appeal, was named as the group's leader.
Defendants Timothy Motley and Lawson Dodson were identified as
individuals who delivered cocaine to the various locations for sale.
Defendants Roger Jones and Little Tom Childress were among the
street-level workers who serviced customers on-site. The group oper-
ated the fortress and Frazier Road locations 24 hours a day, seven
days a week, while sales at the farm ended around 12:00 p.m. each
night. In three years, the group was out of cocaine on just two days.
Police executed two search warrants at the fortress in January
1993, leading to charges against, among others, Little Tom Childress.
An intensive investigation of the group's activities began in Spring
1993 following these raids. As part of this investigation, Francis
Barnwell, sworn in as a deputy sheriff, was placed in a long-term
undercover role. Barnwell made many purchases of crack cocaine at
the farm, the fortress, and Frazier Road using an automobile equipped
with a television camera and recorder. These specific purchases were
charged as substantive counts in the indictment against Jones, Chil-
dress, Motley, and Earl Logan. A search warrant executed December
17, 1993 led to charges of possession of cocaine base with intent to
distribute against Cynthia Dodson, Tina Reid, and Donald Woods.
At the close of the government's evidence, the district court
granted the defendants' motions for judgment of acquittal on some
counts. The jury later returned a verdict of guilty on all remaining
counts. The district court entered judgment against the defendants and
sentenced them in April and May 1995.
Eight defendants now appeal, maintaining that the district court
committed several errors. All of the defendants contend that the dis-
trict court improperly dismissed a juror mid-trial after one of the gov-
ernment's witnesses testified that he was acquainted with the juror.
They also assert that the court made prejudicial remarks to the
remaining jurors after the dismissal. Next, Roger Jones claims that the
case against him should be dismissed because he was tried in viola-
5
tion of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Lawson Dod-
son and Childress argue that the government knowingly used the
perjured testimony of informant Alonza Falden to obtain their
convictions.2 Little Tom Childress contends the evidence is insuffi-
cient to find him guilty of carrying or using a firearm during a drug
trafficking crime under 18 U.S.C. § 924(c) and that the court improp-
erly attributed 33.1 grams of crack cocaine to him for sentencing pur-
poses. Timothy Motley also contests the sufficiency of the evidence
to support his conviction under 18 U.S.C. § 924(c). Tina Reid chal-
lenges the district court's refusal to suppress her post-arrest statement
because she did not receive the statement until one month before trial.
Cynthia Dodson maintains that the denial of her motion for severance
resulted in irreparable prejudice and that the court should have
granted her motion for judgment of acquittal on the substantive pos-
session count of the indictment. In addition, Jones claims that the
government improperly directed the jurors' attention to certain por-
tions of the government's evidence to his prejudice. Jones and Motley
further contend that the district court should not have granted the
jury's request to view them individually. Finally, all defendants
except Childress attack the sufficiency of the evidence to support their
convictions for conspiracy and the remainder of the substantive counts.3
II.
A. Removal of Juror
All defendants in this appeal complain that the district court erred
in dismissing a juror mid-trial. During voir dire, several potential wit-
nesses were named and the court asked the array of jurors whether
_________________________________________________________________
2 In their summary of argument, the defendants state that Lawson Dod-
son and Childress challenge the government's use of allegedly perjured
testimony (defendants' Issue IX). Other places in the brief may indicate
that Childress does not join issue on this point. In an abundance of cau-
tion, we count Childress as joining Issue IX.
3 In their statement of the issues, the defendants exclude Childress from
the challenge to the sufficiency of the evidence (defendants' Issue XIII).
Other places in the brief indicate Childress may have joined issue on
Issue XIII. As with Issue IX, n.2, we count Childress as joining issue on
issue XIII.
6
they knew any of them. Apparently, Francis Barnwell was not named
as a witness at that time. A panel of 14 jurors, including two alter-
nates, was eventually seated. At the end of the third day of trial, gov-
ernment witness Francis Barnwell informed the prosecutor that he
recognized a juror. Out of the jury's presence, Barnwell testified that
he had come into contact with one of the jurors, James Helton, during
an earlier undercover drug investigation in another locality. Barnwell
stated that he had seen Helton in the presence of one of Helton's
friends who was a heavy user of cocaine approximately ten times and
that he had been to the juror's house on one occasion. He knew where
the juror lived and where the juror worked. The government objected
to juror Helton's continued presence on two bases: his asserted
acquaintance with Barnwell and his alleged familiarity with people
who used cocaine. The next morning, after listening to counsel on
both sides of the issue and without calling Helton to testify, the dis-
trict court elected to remove Helton and to seat an alternate juror over
the defendants' objection. The defendants then moved for a mistrial,
which the district court denied.
We are of opinion that if the district court had been aware of all
the relevant facts at the time of voir dire, Helton would have been
excused for cause at that time. Thus, the district court's decision to
excuse Helton as soon as the court became aware of the facts regard-
ing Helton's connection to Barnwell did not constitute error.4 In fact,
the district court's dismissal of Helton was proper in order to avoid
the potential prejudice created by a biased juror. See United States v.
Hayden, 85 F.3d 153, 157 (4th Cir. 1996). Therefore, we affirm the
district court's decision to excuse Helton.
We review a district court's denial of a mistrial for abuse of discre-
tion. United States v. West, 877 F.2d 281, 287-88 (4th Cir.), cert.
denied, 493 U.S. 959 (1989). The district court's decision to substitute
an alternate juror rather than to declare a mistrial is consistent with
Fed. R. Crim. P. 24(c) and the principles set forth in United States v.
Hayden, 85 F.3d 153, 157 (4th Cir. 1996). Before making its decision,
_________________________________________________________________
4 In fact, we note that the district court's refusal to excuse Helton for
cause after becoming aware of all the relevant facts would constitute
reversible error. United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir.
1977).
7
the district court heard argument from counsel and considered the
other available options. We therefore find that the district court did
not abuse its discretion by denying the defendants' motion for a mistrial.5
III. SPEEDY TRIAL
Jones argues that the district court failed to comply with the time
limitations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. We dis-
agree. The Act sets a 70-day limit for bringing a defendant to trial,
but also provides that the speedy trial clock stops when any pretrial
motion is filed until the resolution of that motion. 18 U.S.C.
§ 3161(c)(1) & (h)(1)(F). If the court takes a motion under advise-
ment, the clock stops until the motion is ruled upon or for 30 days,
whichever is shorter. 18 U.S.C. § 3161(h)(1)(J). The Act further pro-
vides that a reasonable period of delay is allowed when the defendant
is joined for trial with a codefendant, which we have construed to
mean that an exclusion for one defendant applies to all defendants. 18
U.S.C. § 3161(h)(7); United States v. Carey, 746 F.2d 228, 230-31
(4th Cir. 1984), cert. denied, 470 U.S. 1029 (1985).
A review of the docket sheets in this case indicates that Jones's
speedy trial clock began to run when the indictment against him was
unsealed on September 2, 1994. 18 U.S.C. § 3161(c)(1). Jones filed
a motion for discovery on September 16, 1994. In mid-October, at
least two of his codefendants also filed motions for discovery. These
pending motions were all decided on November 16, 1994. On Decem-
ber 22, 1994, Jones filed a motion to continue the trial. This motion
was taken under advisement on December 29. Finally, Jones filed a
motion to dismiss the charges on January 20, 1995, which was
resolved on the first day of trial, January 23.
_________________________________________________________________
5 The attorneys and the district court were uncertain as to whether
Barnwell's name had been called as a witness and treated the matter as
if it had not been called. The district court, in excusing Helton, explained
to the jury that Helton was excused because of his acquaintanceship with
a witness which was unknown at the time of the voir dire. These remarks
of the district court were entirely neutral and innocuous and any objec-
tion to them is without merit. Any sought-for inference that Helton was
excused because he was black is entirely without support. The reason for
Helton's excuse being entirely unrelated to race, there is no Batson ques-
tion as the district court correctly recognized.
8
Excluding the time during which the above motions were pending,
Jones's clock had advanced 50 days at the most, i.e., 14 days between
September 2 and September 16 plus 36 days between November 16
and December 22. The parties disagree as to whether the pendency of
a motion for discovery constitutes excludable time under the Act.
However, this court has excluded the time during which such a
motion is pending.6 See United States v. Tinsley, 800 F.2d 448, 449-
50 (4th Cir. 1986). Jones was thus brought to trial within the 70-day
limit. Accordingly, his claim under the Speedy Trial Act fails.
IV. FALDEN'S TESTIMONY
Lawson Dodson alleges that the prosecution knowingly used per-
jured testimony from government witness Alonza Falden to obtain his
conviction. Falden provided testimony on at least three occasions: at
a multi-jurisdictional grand jury proceeding in December 1993, at the
December 1994 trial of three of Dodson's codefendants, and at Dod-
son's trial on January 23, 1995.
Dodson first claims that the government made or inferred promises
of a reduced sentence in exchange for Falden's testimony at the grand
jury proceeding. According to the transcript from the grand jury, the
Commonwealth's Attorney7 conducting the inquiry stated to the grand
jury that Falden "hopes to receive . . . some kind of reduction of his
sentence" from testifying before the grand jury. Later in the appear-
ance, the prosecutor stated that his "impression" was that Falden was
testifying honestly and that "the Judge should give that consideration
when it comes time for your sentence." Based on these comments,
Dodson claims Falden lied at Dodson's trial when he stated that no
_________________________________________________________________
6 We note that several other circuits have also excluded the time during
which a discovery motion is pending for speedy trial purposes. See, e.g.,
United States v. Castle, 906 F.2d 134, 137 (5th Cir. 1990); United States
v. Winfrey, 900 F.2d 1225, 1227-28 (8th Cir. 1990); United States v.
Jorge, 865 F.2d 6, 11-12 (1st Cir.), cert. denied, 490 U.S. 1027 (1989);
United States v. Langford, 802 F.2d 1176, 1178 (9th Cir. 1986), cert.
denied, 483 U.S. 1008 (1987); United States v. Darby, 744 F.2d 1508,
1518 (11th Cir. 1984), cert. denied, 471 U.S. 1100 (1985).
7 George E. Buzzy was also apparently a Special Assistant U. S. Attor-
ney.
9
one had helped him make parole in exchange for his testimony. We,
however, do not believe the government prosecutor's statements
regarding Falden's hopes and the prosecutor's impressions about what
a court should do amount to the promises Dodson claims they are. In
all events, the remarks went to the weight of Falden's testimony
before the grand jury and the government's representation that Fal-
den's mandatory parole date would have released him in time for this
trial is unrefuted.
Dodson also points to inconsistencies in Falden's testimony at the
three proceedings. At the grand jury investigation in December 1993,
Falden stated that "Jake" (presumably the defendant, whose full name
is Lawson Jacob Dodson) was a cousin of Carroll and Timothy Dod-
son and that Jake paid Carroll rent to live in one of the two houses
at the farm. He also claimed that he had seen Dodson sell marijuana
at another house belonging to the Dodsons. He had witnessed only
marijuana sales at this third house. He did not otherwise implicate
Dodson as being involved in the Dodson organization.
At the December 1994 trial, the government's attorney asked Fal-
den to list for the jury the persons named Dodson who supplied Fal-
den with cocaine for sale at the farm, the fortress, and Frazier Road.
Falden named Raleigh Dodson, Timothy Dodson, David Lee Dodson,
and Charles Dodson. At the second trial on January 23, 1995, the
prosecutor asked Falden to give the jury examples of people who Fal-
den knew or saw or people who told Falden they brought cocaine to
the locations to start sales. Falden answered, "Timothy Motley,
Charles Dodson, Jacob Dodson. That's all I see in the courtroom
now." In addition, he testified that he had seen Timothy Dodson and
Jacob Dodson both taking responsibility for a location at the same
time, with people selling for them simultaneously. He further said that
he sold approximately 15 ounces of cocaine for Lawson Dodson over
the years. He also mentioned Charles Dodson as being present during
the Dodsons' negotiations for a new supply of cocaine.
We think any inconsistencies in Falden's testimony fall short of
demonstrating a deliberate attempt on the government's part to elicit
perjured testimony, even if the inconsistencies speak to Falden's cred-
ibility. Two of the defendants' attorneys, including Dodson's,
explored such inconsistencies on cross-examination. The credibility
10
of this witness was for the jury, and we will not disturb the jury's
assessment.
V.
A. Childress's § 924(c) Conviction
Childress challenges his § 924(c) conviction for using or carrying
a firearm during a drug trafficking crime on January 8, 1993, or for
aiding and abetting the same in violation of 18 U.S. C. § 2, as charged
in Count 5 of the indictment. Childress contends that the evidence is
insufficient to support his conviction and that the district court's use
of an erroneous jury instruction in view of Bailey v. United States,
516 U.S. 137 (1995), constitutes reversible error. 8 Applying the pre-
Bailey standard, there can be little or no doubt that the evidence
against Childress was sufficient to support the jury's verdict. How-
ever, Bailey requires active employment in order to convict a defen-
dant of using a firearm in violation of § 924(c). Thus, the effect of the
district court's erroneous instruction requires a closer look.
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8 On the use or carry element of§ 924(c), the district court, quite prop-
erly at the time it was given, instructed the jury as follows:
Now, if a firearm plays any role in the drug felony, if it facili-
tates the crime in any way, it is being used in the sense that has
been charged under this indictment. Moreover, if the firearm's
role is only a passive one, such as being possessed for security
or for contingencies, that would constitute use or possessing dur-
ing a drug trafficking offense, and again, the phrase "use" or
"carries a firearm" means having a firearm or firearms available
to assist or aid in the commission of the alleged drug offense,
and in determining whether the Defendant used or carried a fire-
arm, you may consider all of the factors received into evidence,
including the nature of the underlying drug trafficking crime, as
alleged, the proximity of the Defendant to the firearm in ques-
tion, and the usefulness of a firearm to the crime alleged, and the
circumstances surrounding the presence of the firearm.
The Government is not required to show that the Defendant
actually displayed or fired the weapon. The Government is
required, however, to prove beyond a reasonable doubt that the
firearm was in the Defendant's possession, or under the Defen-
dant's control, at the time of the drug trafficking offense.
11
In evaluating the district court's erroneous instruction as to an ele-
ment of the offense charged, we apply the plain error standard set
forth in United States v. Olano, 507 U.S. 725 (1993). See Johnson v.
United States, 65 U.S.L.W. 4305, 4307-08 (U.S. May 12, 1997) (No.
96-203) (permitting application of plain error test); United States v.
Martinez, ___ F.3d ___ (4th Cir. Feb. 18, 1998) (Nos. 95-5331, 95-
5332) (applying Olano principles to erroneous § 924(c) instruction).
As in Martinez, we are of opinion that under Olano: (1) there is error;
(2) the error is plain; and (3) the error "affect[s] substantial rights."
Olano, 507 U.S. at 732-35. We have the discretion to notice and cor-
rect this error if it "seriously affect[s] the fairness, integrity or public
reputation or judicial proceedings." Olano , 507 U.S. at 732 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)). In applying this
prong of the Olano test, we consider whether the trial evidence on the
element was "overwhelming" and "essentially uncontroverted."
Johnson, 65 U.S.L.W. at 4308.
The record contains little evidence regarding Childress's use or
carrying of a firearm. Childress was present at the fortress on January
8, 1993 and was conducting cocaine sales at that time. Jermaine
Chase and another, unnamed individual were inside the fortress at this
time, playing with two guns. However, there is no evidence in the
record suggesting that Childress ever had contact with, or even
observed, the firearms on January 8. Thus, we cannot say that the
direct evidence on the use or carry element of § 924(c) was "over-
whelming" or "essentially uncontroverted." Johnson, 65 U.S.L.W. at
4308.
Because the indictment also permits a § 924(c) conviction under
the aiding and abetting principles set forth in 18 U.S.C. § 2, we must
also evaluate the evidence in light of this theory of liability. The dis-
trict court instructed the jury that "mere presence at the scene of a
crime and knowledge that a crime is being committed are not suffi-
cient to establish that a Defendant either directed or aided and abetted
the crime unless you find beyond a reasonable doubt that the Defen-
dant was a participant and not merely a knowing spectator." Based on
the record, we cannot say that, under proper instruction, the evidence
that Childress aided or abetted another in using or carrying a firearm
is overwhelming or essentially uncontroverted. Therefore, the district
court's error under Bailey affected the fairness of the trial, and we
12
notice its error in order to avoid a "miscarriage of justice." Olano, 507
U.S. at 732, 736. Accordingly, we vacate Childress's conviction
under § 924(c) and remand that aspect of this case for retrial if the
government be so advised.
B. Motley's § 924(c) Convictions
Motley also appeals his § 924(c) convictions on sufficiency of the
evidence grounds and in light of the erroneous jury instruction.
Counts 32 and 34 of the indictment charged Motley with § 924(c) vio-
lations occurring on September 30 and October 7, 1993, respectively.
The evidence shows that Motley was carrying a gun in his hand on
September 30 when he received money from government witness
Barnwell for a sale of crack cocaine. The record also indicates that
Motley had a gun on his person and in plain view throughout an hour-
long drive with Barnwell on October 7. During the drive, Motley sold
Barnwell $200 worth of crack cocaine.
There can be no doubt that this evidence is sufficient to support the
jury's verdict under the pre-Bailey law. But again, we must also eval-
uate the effect of the district court's failure to charge the Bailey stan-
dard of active employment required for conviction under § 924(c).
Bailey, 516 U.S. at 144. In Bailey, the Court stated that "[t]he active
employment understanding of ``use' certainly includes brandishing,
displaying, bartering, striking with, and, most obviously, firing or
attempting to fire a firearm." Bailey, 516 U.S. at 148. We are of opin-
ion that even under the higher standard set forth in Bailey, the evi-
dence regarding Motley's conduct of displaying the firearm during
drug transactions is overwhelming and essentially uncontroverted evi-
dence of use. We are of opinion that the jury would not have found
Motley anything but guilty of the § 924(c) charges had the proper
instruction been given. Therefore, the district court's misinstruction
constitutes harmless error, and we affirm Motley's§ 924(c) convic-
tions.
VI. CHILDRESS'S SENTENCE
Childress objects to the district court's attributing 33.1 grams of
crack cocaine to him for sentencing purposes.9 He argues that the gov-
_________________________________________________________________
9 A witness testified at trial that he had seen Childress sell drugs over
100 times. Assuming a typical sales unit of .2 grams of crack cocaine,
13
ernment failed to prove he sold crack cocaine rather than powder
cocaine, although he never raised this issue at his sentencing hearing.
In any event, we find that sufficient evidence supports, by a pre-
ponderance of evidence, the district court's conclusion that the sub-
stance at issue was crack cocaine. At trial, witness Falden stated that
he and the Dodsons were involved in preparing and selling crack
cocaine. Regarding the three substantive drug violations for which
Childress was convicted, the evidence indicates that in each instance
the relevant substance was crack cocaine rather than powder cocaine.
Furthermore, the presentence report mentions crack cocaine only. At
the sentencing hearing, counsel for Childress and the government, as
well as the probation officer all referred to the drug under consider-
ation as crack cocaine. In light of the above, and absent a contempora-
neous objection to the district court's finding that the substance was
crack cocaine, Childress's challenge to his sentence on account of the
amount of drugs fails. See United States v. Olano, 507 U.S. 725, 733-
34 (1993).
Because the conviction under § 924(c) of Little Tom Childress is
vacated and sent back for another trial, if the government be so
advised, Childress's sentence for his § 924(c) conviction also must be
vacated. That brings up the question as to whether or not other parts
of his sentence may be affected by the vacation of the § 924(c) con-
viction. We express no opinion on that question, but because there
may be some chance that other parts of Childress's sentence may be
affected by the vacation of his § 924(c) conviction, we vacate his
entire sentence. Upon remand, after the § 924(c) question is disposed
of, the district court will resentence Childress and at that time make
any correction to his sentence it deems appropriate. We express no
opinion on whether or not his sentence should be corrected.
_________________________________________________________________
the district court first attributed 20 grams of crack cocaine to Childress
(100 deals x .2 grams per deal = 20 grams). To this figure, the court
added 11.1 grams of crack cocaine seized from Timothy Dodson on July
29, 1993. Childress had been seen driving Dodson to another person's
house approximately one-half hour earlier that day while Dodson was
carrying a red bank bag in which the drugs were found. The court thus
attributed a total of 33.1 grams of crack cocaine to Childress.
14
VII. POST-ARREST STATEMENT
Miss Reid's claim that the district court should have suppressed her
post-arrest statement to the police or granted a continuance is equally
unavailing. The statement referred to comprises Miss Reid's com-
ments to Special Agent Elizabeth Mantz during the transport of Miss
Reid from custody in Danville to custody in Roanoke.
Miss Reid makes no claim that her statement to Miss Mantz was
involuntary. Rather, she complains that the government disclosed the
statement in an untimely manner to her prejudice. Miss Mantz's syn-
opsis of Miss Reid's statement was dated September 15, 1994 and
marked "filed" in the United States Attorney's Office in September
1994. On November 10, 1994, Miss Reid filed a motion for discovery
requesting the right to inspect and copy any oral or written statement
she had made as well as an opportunity to inspect and copy all books,
papers, documents, and objects to be used by the government at trial.
The district court granted this motion on November 23, 1994. Miss
Reid's attorney reviewed all discovery material that same day, but the
statement was not among the materials made available. Defense coun-
sel first received notice of the statement's existence on December 20,
1994, when Miss Mantz's synopsis of it arrived attached to a pro-
posed plea agreement. The district court denied Miss Reid's subse-
quent motions to suppress or for a continuance.
We first note that the district court's order stated only that it was
denying Miss Reid's motions "for reasons expressed at a hearing on
January 12, 1995." However, neither the appendix nor the record on
appeal provides a transcript of this hearing. We are reluctant to find
the district court's ruling erroneous when the record on appeal fails
to provide the basis for upsetting the district court's decision. Cf.
Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.) (refusing to review issue
when plaintiff failed to include transcript of district court hearing in
record on appeal), cert. denied, 506 U.S. 1025 (1992).
Moreover, even viewing the evidence in the light most favorable
to Miss Reid, we find no indication that the statement's delayed dis-
closure was prejudicial. The record reveals that the government pro-
vided the statement to her attorney approximately one month before
trial began on January 23, 1995. At trial, defense counsel referred to
15
details from the report during cross-examination of Miss Mantz.
Although we do not encourage untimely disclosure of discovery
material, we are of opinion any error, not being prejudicial, is not
reversible.
VIII. MOTION FOR SEVERANCE
We also conclude that the district court did not abuse its discretion
in denying Miss Dodson's motion for severance. Miss Dodson con-
tends that the jury likely used evidence admitted only against code-
fendants but inadmissible or excluded as to her. However, she fails to
identify the particular evidence to which she refers, except to say that
the government introduced some evidence relating only to Miss Dod-
son's codefendants and thus inapplicable to her. Miss Dodson also
asserts that the evidence against her was minimal as compared to her
codefendants and that the jury failed to consider her individually in
determining her guilt or innocence. We are of opinion that Miss Dod-
son has failed to demonstrate any compromise of her specific trial
rights or threat to the jury's ability to make a reliable judgment caused
by her joinder for trial. See Zafiro v. United States, 506 U.S. 534, 539
(1993). The district court thus acted within its discretion in refusing
to sever her case for trial.
IX. OTHER ISSUES
The balance of the defendants' claims do not merit extended dis-
cussion. The district court committed no abuse of discretion when it
complied with the jury's request during deliberations to view Jones
and Motley individually after replaying of a videotape previously
received into evidence. No error occurred with respect to Jones when
the district court allowed the government to identify the counts for
which witness Danny Brabham offered testimony since that testimony
did not relate to any of the defendants before this court.
Regarding Miss Dodson's challenge to the conclusion that she pos-
sessed cocaine with intent to distribute on December 17, 1993, as
charged in Count 42 of the indictment, the record indicates that Miss
Dodson barricaded herself in a tiny bathroom with three other people
during the execution of a search warrant at the farm that night. The
bathroom's commode was overflowing because several bags of
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cocaine, which combined to form a lump the size of a baseball, had
been partially flushed and were blocking it. Floating in approximately
two inches of water on the bathroom floor was $846 in currency.
Officers found an additional $820 in small denominations in Miss
Dodson's coat. We find the evidence sufficient to uphold the verdict
on this count. Finally, the defendants' general contention that the evi-
dence does not support the verdict on any count of the indictment is
not supported by the record.
X.
In sum, all of the convictions except that of Little Tom Childress
on the § 924(c) charge are affirmed.
All of the sentences except those of Little Tom Childress are
affirmed.
The conviction of Little Tom Childress on the § 924(c) charge
(indictment count FIVE) is vacated and that aspect of the case is
remanded for a new trial if the government be so advised.
The sentence of Little Tom Childress is vacated for resentencing
on remand in accordance with part VI of this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS10
_________________________________________________________________
10 We should conclude with a remark that in this complicated case
involving ten defendants, eight of whom have appealed, an indictment of
71 counts, and a jury trial, each of the attorneys, both for the government
and the defendants, not to mention the district court, cooperated to make
an intelligible record. The same applies to the briefs on appeal, which are
remarkably well organized without forfeiting any right or contention.
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