United States v. Graves ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5950
VASHON ALVIN GRAVES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5951
JASON DORIAN JONES,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-95-94-BR)
Argued: December 6, 1996
Decided: February 24, 1997
Before HALL, ERVIN, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Rudolph Alexander Ashton, III, SUMRELL, SUGG,
CARMICHAEL & ASHTON, New Bern, North Carolina, for Appel-
lant Graves; Carl Lewis Tilghman, Beaufort, North Carolina, for
Appellant Jones. J. Frank Bradsher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Jason Jones and Vashon Graves, who are half brothers, were
charged with a three-count indictment: count one charged both with
conspiracy to distribute and possess with the intent to distribute
cocaine, see 21 U.S.C. § 846; count two charged both with distribu-
tion of cocaine and aiding and abetting, see 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2; and count three charged both with possession with
intent to distribute cocaine and aiding and abetting, see 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Jones pled guilty to count three but
pled not guilty to counts one and two. Graves pled not guilty to all
three counts. They were tried jointly. The jury found Jones guilty on
count one but not guilty on count two. It found Graves guilty on count
one but not guilty on counts two and three. The district court sen-
tenced Jones to 235 months' imprisonment and Graves to 121
months. Jones and Graves appeal their convictions and sentences.
Finding no error, we affirm.
I.
On May 10, 1995, Detective Kennon of the Raleigh, North Caro-
lina, police department (acting on a tip) followed Andre Sorrell to
Gold's Gym in the Holly Park Shopping Center in Raleigh. Within 25
to 30 minutes Jason Jones and Vashon Graves arrived outside the
gym in a Chevrolet Blazer. Graves was driving. While Jones waited
in the Blazer, Graves entered the gym and came out with Sorrell.
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Graves returned to the Blazer and waited while Jones and Sorrell met
briefly in Sorrell's Jeep. When Jones and Sorrell finished their meet-
ing, Jones and Graves left the shopping center and Sorrell returned to
the gym.
Detective Kennon continued the surveillance of Sorrell. Kennon
knew that Sorrell was driving on a revoked license, so when Sorrell
left the gym Kennon ordered a marked police car to stop him. When
Sorrell was stopped and searched, approximately 500 grams of crack
cocaine were found in his underwear. Sorrell then agreed to help the
police.
Later the same evening, at Detective Kennon's direction, Sorrell
called Jones and arranged to buy more cocaine. Sorrell told Jones that
he had already sold the half kilo of cocaine and wanted to buy another
half kilo. Jones agreed to another transaction and arranged to meet
Sorrell at a nearby Red Roof Inn. Officers took Sorrell and his Jeep
to the meeting place and set up surveillance. Sorrell then paged Jones,
and within minutes Jones arrived in the same Chevrolet Blazer the
officers had observed earlier in the day. Again, Graves was driving.
Jones was arrested as he approached Sorrell's Jeep. Officers moved
to arrest Graves, who remained in the Blazer. As one officer
approached the Blazer, he saw Graves lean over to the passenger side
floor board. The officers arrested Graves and searched the Blazer
where they found 428.5 grams of crack cocaine inside a brown paper
bag on the passenger side floor board. Jones's fingerprints were on
the paper bag.
Detective Kennon testified that Jones chose to waive his rights and
talk to the police. Based upon Jones's statements and consent, the
police searched his house trailer and his girlfriend's apartment. The
search produced two loaded handguns, $318 in cash, and plastic bags
like those used to package the crack cocaine seized at the Red Roof
Inn. The fruits of the search were introduced at trial.
II.
Jones argues that because of a Miranda violation the district court
erred in denying his pre-trial motion to suppress (1) his post-arrest
statements to officers and (2) the firearms, cash, and plastic bags
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seized as a result of those statements. At the suppression hearing
Jones's account of his interrogation was entirely different from Detec-
tive Kennon's. Jones testified that he was not advised of his Miranda
rights and that he asked for a lawyer. Detective Kennon testified as
follows. Before he questioned Jones, he informed Jones of his rights
by reading a standard police form. After each right was read, Kennon
asked Jones whether he understood. Jones responded each time with
a nod or "uh-huh." After Kennon finished reading the form, he asked
Jones to sign the form and told him that his signature would constitute
a waiver of rights. Jones refused to sign. However, Jones immediately
began asking Detective Kennon questions about his (Jones's) brother.
Kennon responded to Jones's questions with several questions of his
own. As a result, Jones indicated to Kennon that he had two resi-
dences, his trailer and his girlfriend's apartment. Jones consented to
a search of each residence. Although Jones maintains that he asked
for a lawyer, he admitted on cross-examination that when the officers
allowed him to make a telephone call he did not call a lawyer.
The district court determined that Detective Kennon's testimony
was more credible and made the following findings: that Jones had
been advised of his Miranda rights, that Jones refused to sign the
waiver form, and that after being informed of his rights Jones engaged
in a conversation with Kennon that ultimately led to searches, with
Jones's consent, of his trailer and his girlfriend's apartment. We are
satisfied that these findings were not clearly erroneous. See United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
Jones claims that the lack of a written waiver casts doubt on the
district court's waiver determination. In North Carolina v. Butler, 441
U.S. 369 (1979), the Supreme Court noted that a written waiver of the
right to remain silent or to counsel is strong proof of the validity of
that waiver. Id. at 373. However, the Court also noted that a valid
waiver can be established without a writing. "The question is not one
of form, but rather whether the defendant in fact knowingly and vol-
untarily waived the rights delineated in the Miranda case." Id. In this
case Jones was fully advised of his rights, acknowledged those rights,
and then proceeded to ask and answer questions about his case. We
have held that "a defendant's ``subsequent willingness to answer ques-
tions after acknowledging [his] Miranda rights is sufficient to consti-
tute an implied waiver.'" United States v. Frankson, 83 F.3d 79, 82
4
(4th Cir. 1996) (quoting United States v. Velasquez, 626 F.2d 314,
320 (3d Cir. 1980)); United States v. Hines, 605 F.2d 132, 134 (4th
Cir. 1979). Therefore, we conclude that the district court correctly
denied Jones's motion to suppress and properly admitted his state-
ments and the evidence found as a consequence of those statements.
Jones argues that even if we find there was no Miranda violation,
we should still reverse his conviction because the district court erred
when it denied his separate motion to exclude evidence of the fire-
arms seized at his trailer and at his girlfriend's apartment. He argues
that the firearms were not relevant or, in the alternative, that their
prejudicial effect outweighed their probative value. This argument is
without merit. Evidence of firearms possession is relevant in narcotics
conspiracy cases. United States v. Ricks, 882 F.2d 885, 892 (4th Cir.
1989); United States v. Collazo, 732 F.2d 1200, 1206 (4th Cir. 1984).
Here the guns were an important part of the government's conspiracy
case. For example, the officers found one of the loaded guns at
Jones's trailer under his pillow in the bedroom where Jones testified
he had stored cocaine. Additionally, Jones called Sorrell from his
trailer and from his girlfriend's apartment to arrange the details of the
drug deal at the Red Roof Inn. The district court did not abuse its dis-
cretion in ruling that the firearms evidence was relevant. Nor are we
persuaded that the firearms evidence unfairly prejudiced Jones. We do
not believe that it diverted the jury from open-minded consideration
of the case.
Jones also contends that the district court abused its discretion by
admitting prejudicial "other crimes" evidence. During the trial Sorrell
described drug deals that transpired before the charged conspiracy.
Because this testimony described activities that fell outside the
charged conspiracy period, Jones asserts that the testimony should
have been excluded under Federal Rule of Evidence 404(b) as evi-
dence of "other crimes, wrongs, or acts."
Rule 404(b) excludes evidence of prior bad acts offered "to prove
the character of a person in order to show action in conformity there-
with." The challenged testimony from Sorrell was not offered for that
purpose. The evidence of prior dealings between Sorrell and Jones
was evidence of uncharged conduct that arose out of the same course
of dealing as the charged offense. We noted in United States v.
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Kennedy, 32 F.3d 876 (4th Cir. 1994), that evidence of activities "oc-
curring before the charged time frame of the conspiracy does not
transform the evidence into ``other crime' evidence." Id. at 885. Evi-
dence of prior dealings may be admissible to put the drug distribution
scheme in context or to complete the story of the crime charged. Id.
at 885-86.
Jones was charged with conspiring to distribute cocaine from
December 1994 to May 1995. The other dealings Sorrell described
occurred in 1992, 1993 and the spring of 1994. Over an eight-month
period between 1992 and 1993, Sorrell said he bought seven to four-
teen grams of cocaine from Jones every "week to a week and-a-half."
Sorrell testified that he then lost track of Jones. In early 1994 when
Sorrell reestablished contact with Jones, Sorrell asked Jones if he was
still selling cocaine. Jones responded that he was not. Sorrell told
Jones to let him know if he (Jones) started selling again. A few
months later Sorrell said he saw Jones again, and Jones told him he
was "back on." From that point until they were arrested, Jones sold
cocaine to Sorrell. Thus, Sorrell's testimony about prior dealings did
not constitute prohibited testimony about prior bad acts. Instead, the
testimony simply allowed the jury to understand the background of
the case and the extent of the relationship and dealings between Sor-
rell and Jones.
We therefore reject each of the foregoing challenges to Jones's
conviction.
III.
Graves first attacks his conviction by contending that the district
court should not have instructed the jury on willful blindness. "The
willful blindness instruction allows the jury to impute the element of
knowledge to the defendant if the evidence indicates that he purposely
closed his eyes to avoid knowing what was taking place around him."
United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). Graves
argues that there was no direct evidence of "willful blindness" and
therefore the instruction was improper.
Graves testified that on May 10, 1995, he was simply visiting
Jones, his half-brother, and was driving him around because Jones's
6
license had been revoked. Graves said he had no involvement in or
knowledge about the drug deals between Sorrell and Jones. However,
the government offered testimony from Sorrell, who said that Graves
had been present on several other occasions when Jones and Sorrell
met and discussed money or drugs. On at least one of those occasions,
Sorrell said he gave Jones some money and Jones indicated that he
and Graves would be getting more drugs. In light of Sorrell's testi-
mony, Graves's contention that he did not know about the drug deals
made it appropriate for the district court to give the willful blindness
instruction.
Graves also contends that there was insufficient evidence to sup-
port the jury's verdict convicting him of conspiracy to possess and
distribute cocaine. In the alternative, Graves argues that even if there
was sufficient evidence, the jury's verdict was inconsistent and should
therefore be reversed. "``To sustain [a] conspiracy conviction, there
need only be a showing that the defendant knew of the conspiracy's
purpose and some action indicating his participation.'" United States
v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992) (quoting United States
v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984)). On the day (May
10) when Graves and Jones were arrested, Graves fetched Sorrell
from the gym. Later that day, when the police surrounded the Chevro-
let Blazer at the Red Roof Inn, Graves reached for the paper bag that
contained the cocaine. On several other occasions when drugs were
discussed or money was exchanged, Graves accompanied Jones.
Once, when Sorrell delivered money to Jones, Jones said he and
Graves would be getting more drugs. We are satisfied that the evi-
dence was sufficient to link Graves with his half brother, Jones, in a
conspiracy to sell drugs.
The jury found Graves guilty on the conspiracy count but not guilty
on the distribution and possession counts. Graves contends that the
jury's verdict was inconsistent because absent the distribution and
possession evidence, there was no other evidence linking Graves to
a conspiracy between Sorrell and Jones. However, even assuming the
jury's verdict was inconsistent, "[a]n inconsistent verdict in a multi-
count indictment is not grounds for reversal." United States v.
Blankenship, 707 F.2d 807, 810 (4th Cir. 1983); see also United
States v. Tinsley, 800 F.2d 448, 450-552 (4th Cir. 1986).
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Accordingly, each of these challenges to Graves's conviction is
without merit.
IV.
The objections that Jones and Graves raise about their sentences
must also be rejected.
Both contend that the district court erroneously attributed to them
drug quantities from counts for which they were found not guilty. We
have held that "[i]t is well settled that acquitted conduct may properly
be used to enhance a sentence once a requisite finding is made by the
sentencing judge." United States v. Romulus , 949 F.2d 713, 716 (4th
Cir. 1991). This holding was recently ratified by the Supreme Court.
In United States v. Watts, 117 S. Ct. 633, 638 (1997), the Court held
that "a jury's verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long as
that conduct has been proved by a preponderance of the evidence."
Here, the district court determined by a preponderance of the evi-
dence that the drugs in Jones's count of acquittal were attributable to
him and that the drugs in Graves's two counts of acquittal were like-
wise attributable to him. There is no error in this determination.
Jones also contends that the district court erred when it enhanced
his offense level by two for firearm possession. See U.S.S.G.
§ 2D1.1(b)(1). The pre-sentence report recommended a two-level
enhancement because agents seized a loaded handgun from under-
neath Jones's pillow. The district court adopted the factual findings
and the recommended guideline applications in the pre-sentence
report. The district court did not err. Application Note 3 to
§ 2D1.1(b)(1) states that "[t]he adjustment should be applied if the
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense." We cannot say that it was clearly
improbable that the weapon was connected with the offense. Jones
testified that he had stored cocaine in the same bedroom where the
officers found the loaded gun. Additionally, Jones called Sorrell from
his trailer and discussed the drug deal at the Red Roof Inn. Thus, the
evidence provided sufficient support for the district court's decision
to enhance Jones's offense level pursuant to U.S.S.G. § 2D1.1(b)(1).
8
The district court decreased Jones's offense level by two for accep-
tance of responsibility. See § 3E1.1(a). Jones contends that the district
court erred when it refused to give him a further reduction pursuant
to U.S.S.G. § 3E1.1(b)(2) for notifying the authorities of his intention
to enter a plea of guilty as to count three. We said in United States
v. Gordon, 895 F.2d 932 (4th Cir. 1990), that"in order for § 3E1.1
of the guidelines to apply, a defendant must first accept responsibility
for all of his criminal conduct." 895 F.2d at 936 (emphasis added).
Jones failed to accept responsibility for all of his criminal conduct. He
pled guilty to one count, but he was found guilty on an additional
count.*
V.
The convictions and sentences of both Jones and Graves are
affirmed.
AFFIRMED
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*We have reviewed the other claims asserted by Jones and Graves and
find them to be without merit.
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