United States v. Ronald Bumpus ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4283
RONALD G. BUMPUS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-98-185)
Submitted: March 20, 2000
Decided: April 27, 2000
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael R. Cline, MICHAEL R. CLINE LAW OFFICES, Charleston,
West Virginia, for Appellant. Rebecca A. Betts, United States Attor-
ney, John J. Frail, Assistant United States Attorney, Charleston, West
Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
After a jury trial, Ronald G. Bumpus was convicted of four counts
of distribution and one count of possession with the intent to distrib-
ute hydromorphone, also known as "Dilaudid." He was sentenced to
236 months imprisonment. Bumpus's attorney has filed a brief pursu-
ant to Anders v. California, 386 U.S. 738 (1967), raising two issues
but indicating that, in his view, there are no meritorious issues for
appeal. Bumpus has filed a pro se supplemental brief raising several
more issues. After a thorough review of the record, we affirm the con-
victions and sentence.
Bumpus first argues that the district court erred in admitting expert
testimony from a law enforcement officer that included an opinion as
to Bumpus's intent, allegedly in violation of Federal Rule of Evidence
704(b). An expert witness may testify about an established practice
among drug dealers, provided that he does not speak directly to the
guilt or innocence of the accused. See United States v. Conyers, 118
F.3d 755, 758 (D.C. Cir. 1997). We find that the officer did not offer
any opinion about Bumpus's intent. He testified only that the packag-
ing used by Bumpus and the number of pills recovered were inconsis-
tent with personal use. Therefore, the district court's admission of the
expert testimony was not an abuse of discretion. See United States v.
Gastiaburo, 16 F.3d 582, 587-88 (4th Cir. 1994) (holding that admis-
sion of expert testimony that twenty-one "hits" of crack cocaine were
"certainly possessed with the intent to distribute" was not plain error).
Next, Bumpus argues that there was insufficient evidence to prove
that he possessed drugs with the intent to distribute. Intent to distrib-
ute may be inferred from possession of a quantity of drugs larger than
needed for personal use. See United States v. Fisher, 912 F.2d 728,
730 (4th Cir. 1990). In this case, when police arrested Bumpus, he
was in possession of twenty-five Dilaudid capsules hidden in a Skoal
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can inside a tool box in the trunk of his car. An expert testified that
possession of twenty-five capsules was not consistent with personal
use.* Furthermore, a police informant testified that Bumpus had pre-
viously made four controlled buys, one of which was in the very car
where officers found the capsules at issue. Based on the foregoing, we
hold that the totality of the circumstances provided substantial evi-
dence supporting the jury's verdict. See United States v. Lamarr, 75
F.3d 964, 973 (4th Cir. 1996) (holding that possession of crack plus
testimony that defendant was a drug dealer supported conviction for
possession with intent to distribute).
Bumpus next challenges the validity of the search warrant for his
home, arguing that the search warrant affidavit contained false allega-
tions of his drug activity. However, he failed to file a motion in the
district court to suppress the evidence obtained from this search, and
therefore, he has waived this issue on appeal. See United States v.
Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Further, because Bum-
pus's conclusory allegations do not prove that the affidavit was false,
Bumpus has failed to show that the district court committed plain
error by admitting into evidence marked money that was found in
Bumpus's home during the search.
Next, Bumpus contends that the district court erred in denying him
the right to view the grand jury testimony. However, the district court
actually granted the Government's motion to disclose the testimony
and entered an order permitting counsel to review the testimony while
forbidding any copies to be made. It appears that Bumpus is com-
plaining that his counsel was permitted to view the testimony but he
was not. However, because Bumpus does not dispute that all the
grand jury testimony was disclosed to his counsel, his claim is really
one of ineffective assistance of counsel. Further, because the record
does not conclusively disclose that Bumpus was denied effective
assistance of counsel, this claim is not properly raised on direct
appeal. See United States v. Williams, 977 F.2d 866, 871 (4th Cir.
1992).
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*Bumpus argues that the expert was not credible because he also testi-
fied that a normal prescription for Dilaudid would consist of 30 capsules.
However, this evidence was before the jury, and the jury was, therefore,
able to adequately judge the officer's credibility.
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Bumpus next complains that the district court improperly canceled
an evidentiary hearing and postponed his trial. However, the motions
hearing was canceled because there were no outstanding pre-trial
motions. In addition, his trial was continued at Bumpus's counsel's
request. Because his counsel either acquiesced to or requested the dis-
trict court's orders, any claim Bumpus has for denial of due process
would have to be raised as an ineffective assistance of counsel claim
in a collateral proceeding.
Finally, Bumpus argues that the district court improperly granted
his first counsel's motion to withdraw. Because his first counsel rep-
resented him only briefly, because new counsel was promptly
appointed, and because Bumpus points to no prejudice arising from
the substitution of counsel, Bumpus's claim provides no basis for
vacating his conviction.
Pursuant to Anders, we have reviewed the record and Bumpus's
other claims for reversible error and found none. We therefore affirm
the convictions and sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, then counsel may move this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof was
served on the client. 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
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