United States v. Mitchell ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4450
WINSOME MITCHELL,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4451
MICHAEL CHARLES JONES,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Charles H. Haden II, Chief District Judge, sitting by designation.
(CR-96-123-MU)
Submitted: November 18, 1997
Decided: December 5, 1997
Before MURNAGHAN and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Marshall A. Swann, Charlotte, North Carolina; Aaron E. Michel,
Charlotte, North Carolina, for Appellants. Mark T. Calloway, United
States Attorney, Gretchen C.F. Shappert, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Winsome Mitchell appeals her conviction and sentence of conspir-
acy to possess with intent to distribute cocaine and cocaine base (21
U.S.C. § 846 (1994)). Co-defendant Michael Charles Jones appeals
his convictions and sentences of conspiracy to possess with intent to
distribute cocaine and cocaine base, aiding and abetting the posses-
sion of a firearm in relation to a drug trafficking crime (18 U.S.C.
§§ 924(c), 2 (1994)), aiding and abetting the possession with intent to
distribute cocaine base (21 U.S.C. § 846(a)(1), 18 U.S.C. § 2), and
possession of a firearm by a convicted felon (18 U.S.C. § 922(g)
(1994)). We affirm.
Appellants and seven others were indicted on numerous narcotics
and weapons offenses based upon involvement in a crack cocaine dis-
tribution ring. Mitchell transported cocaine from New York City to
be sold in the Charlotte, North Carolina area. Jones distributed some
of the crack cocaine and was also involved with others in robbing
local drug dealers for their drugs and money.
Mitchell attacks the sufficiency of the evidence to support her con-
viction. Her non-custodial statement clearly showed that she was
involved in a conspiracy to distribute crack cocaine. See United States
v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert. denied,
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___ U.S.___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868).
Furthermore, there was substantial corroborative evidence supporting
the essential elements admitted in her statement that would justify an
inference of truth. See Opper v. United States , 348 U.S. 84, 90 (1954).
Accordingly, we find sufficient evidence to support her jury convic-
tion. See Glasser v. United States, 315 U.S. 60, 80 (1942).
Jones likewise challenges the sufficiency of the evidence as to his
convictions. Here, there was substantial evidence, mostly provided by
his co-conspirators, that Jones was involved in a conspiracy to distrib-
ute narcotics, that he possessed narcotics with intent to distribute, and
that he used a gun in furtherance of the conspiracy. Thus, evidence
was sufficient to support Jones's convictions as well.
Jones also contends that Mitchell's extrajudicial statement was
admitted in violation of his rights under the Confrontation Clause as
articulated in Bruton v. United States, 391 U.S. 123 (1986) (holding
that the admission of a non-testifying co-defendant's statement incul-
pating the defendant by name violated the defendant's Confrontation
Clause rights), and that the court erred in not giving the jury a limiting
instruction. The unredacted statement did not refer to Jones by name.
Insofar as Jones contends that the statement physically described him
because it referred to a black man with a gold tooth, there was no evi-
dence that Jones had a gold tooth, nor did he testify. Furthermore,
when the description is considered with other evidence, it is clear that
Mitchell was not referring to him. We conclude the statement could
not be fairly understood to incriminate Jones. See United States v.
Crockett, 813 F.2d 1310, 1315 (4th Cir. 1987). Because there was no
Bruton problem, there was no need to give a limiting instruction.
In addition, we find that the court did not abuse its discretion in
denying a motion for a new trial. See United States v. Singh, 54 F.3d
1182, 1190 (4th Cir. 1995). We also find that the court properly pro-
hibited a defense witness to testify for the purpose of impeaching a
Government witness. The Government witness was never confronted
with the purported impeaching statement during cross-examination.
Furthermore, we find that the court did not err in instructing the jury
on the § 922(g) charge. See United States v. Wells, 98 F.3d 808, 810-
11 (4th Cir. 1996).
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Accordingly, we affirm Mitchell's and Jones's convictions and
sentences. 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 in the decisional process.
AFFIRMED
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