United States v. Jones ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4322
ANTHONY LEMUEL JONES, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-97-343)
Submitted: February 23, 1999
Decided: March 23, 1999
Before WIDENER and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert L. Flax, Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, John S. Davis, Assistant United States Attor-
ney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony Lemuel Jones, Jr. appeals his jury convictions for conspir-
acy to possess with intent to distribute and possession with intent to
distribute cocaine base, in violation of 21 U.S.C.§§ 841(a), 846
(1994), and his resulting seventy-one month sentence. We affirm.
Jones was indicted for drug offenses along with co-defendants Don
Knox and Larell Thomas. Testimony at trial disclosed that Thomas
and Knox sold crack cocaine in the Richmond area along with
Michael Loiseau. Loiseau drove to Jones's house in Richmond to pick
up Thomas there several times in 1997 and also at times picked up
both Thomas and Knox there. Loiseau recalled being inside Jones's
house and seeing him sell drugs and seeing him at the kitchen table
with a razor in his hand.
In October 1997, Loiseau, Thomas, and Knox agreed to combine
their money to purchase two kilograms of cocaine; Loiseau was to
purchase one kilogram for himself and one for Thomas and Knox.
Loiseau picked up Thomas and Knox on October 22, 1997, and they
gave him funds to use for the drug purchase. Loiseau was arrested
that night and immediately agreed to cooperate with law enforcement
officials. Loiseau spoke with Thomas and Knox in a series of
recorded conversations over the next few days. On October 25,
Loiseau (acting under the control of DEA agents) brought fake
cocaine to Thomas and Knox, and the two were arrested.
On the same day, DEA agents executed a search warrant at Jones's
Richmond house. Jones was present during the search, during which
officers recovered a brown leather pouch containing 1.7 grams of
crack cocaine on a nightstand in the master bedroom. The drugs were
packaged in seventeen small baggies, each containing approximately
.1 gram of "rock" crack cocaine. A Richmond detective testified that
possession of that amount so packaged was consistent with conduct
of a "street level" dealer. Officers also recovered a crack pipe, a note-
book apparently used as a drug ledger, a small metal scale, a driver's
license in Jones's name, a plastic bag containing numerous small
glassine baggies, and a razor blade from the bedroom. In the kitchen
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of the home, officers found a brown lunch bag containing baggies and
a single-edged razor blade and two boxes of baking soda (often used
in "cooking" crack cocaine). In a front bedroom, officers found lug-
gage containing documents addressed to Thomas. Upon arresting
Jones, officers recovered two pagers and approximately $300 cash
from his person.
Three officers were involved in interviewing Jones after his arrest.
Jones waived his Miranda rights after being advised of them and
signing a DEA form. Jones acknowledged that Knox and another per-
son had stayed at his house in the front bedroom and that they had
"cooked" crack cocaine in his home several times. Jones also admitted
that he used crack cocaine, that Knox and his companion gave him
small amounts of crack in exchange for use of the house, that he had
purchased drugs from Knox's companion, and that Knox and the
other person helped him pay bills for the house. Jones also stated that
he received some crack for personal use and small amounts for distri-
bution. In addition, he stated that people frequently came to the house
for Knox and the other person and that he had seen the two with
weapons.
At trial, Jones testified he had no idea who owned the leather
pouch, small baggies, or the pipe found on the nightstand. He also tes-
tified that he invoked his right to remain silent in his interview with
the police officers and specifically denied making any of the state-
ments to the officers. Jones also stated he did not use drugs at any
time during the year preceding his arrest.
At sidebar during Jones's testimony, trial court raised the issue of
the voluntariness of Jones's statements to the officers. The prosecu-
tion asserted Jones waived any suppression issue but the jury was to
assess the voluntariness of the statements. Defense counsel responded
"that the statement didn't occur, that what [the DEA agent] is relating
he didn't say." The court responded, "Well, he also said they didn't
read him his rights, and he asked for a lawyer, and then they ques-
tioned him." Defense counsel then stated, "Frankly, that is the first
time I heard that." The court then found the statements voluntary.
On cross-examination, Jones admitted he had known Thomas since
1995. He also testified that he permitted Thomas and Knox to wash
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their clothes at his house as a favor; that he did not know what
Thomas did to earn a living; and that he had both Thomas's and
Knox's pager numbers. Jones explained that he used the scales, the
notebook, and the razor blade for personal purposes unrelated to drug
distribution.
As for the pre-trial statements, Jones denied waiving his Miranda
rights and stated he signed the waiver form only to acknowledge that
the agents read him his rights. He admitted telling the agents that he
knew Thomas and Knox and that he recognized Loiseau, but stated
he made none of the other statements attributed to him.
Jones asserts that the Government failed to notify defense counsel
of the inculpatory statements he allegedly made to the three officers
after his arrest in violation of Brady v. Maryland, 373 U.S. 83 (1963),
and United States v. Bagley, 473 U.S. 667 (1985).* He continues that
the result of the trial would have been different had defense counsel
known of the statements. The trial record discloses that defense coun-
sel possessed a typed report concerning the post-arrest interview with
Jones and at least one DEA agent's handwritten notes concerning the
interview. Therefore, we find no error in regard to disclosure of infor-
mation related to Jones's post-arrest, pre-trial interview with law
enforcement officers.
Jones also asserts he received ineffective assistance of counsel at
trial because of the alleged discovery violation discussed above. Gen-
erally, allegations of ineffective assistance of trial counsel are more
suitable for collateral review rather than direct appeal. See United
States v. Tatum, 943 F.2d 370, 379 (4th Cir. 1991). We may entertain
such a claim only when the ineffectiveness of counsel is apparent
from the trial record and evidentiary hearings are not required. See id.at 380 (citing United States v. Grandison, 783 F.2d 1152, 1156-67
(4th Cir. 1986)). For an ineffective assistance of counsel claim to be
considered on direct appeal, it must conclusively appear in the trial
record itself that the defendant was not provided with effective repre-
sentation. See United States v. Hanley, 974 F.2d 14, 16 n.2 (4th Cir.
1992) (citing United States v. Mandello, 426 F.2d 1021 (4th Cir.
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*Jones's defense counsel withdrew on appeal, and a new attorney was
appointed to represent him in this Court.
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1970)). Because we find no such attorney error in this record, we con-
clude that any allegations of ineffective assistance would be more
properly addressed in a habeas corpus motion filed under 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1998).
For these reasons, we affirm Jones's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
of the parties are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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