United States v. Frazier ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4646
CLEVE WILLIAM FRAZIER, a/k/a Tutu,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4651
WESLEY HODGE,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-96-54-BO)
Submitted: October 30, 1998
Decided: November 13, 1998
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William Henry Barker, New Bern, North Carolina; Sema E. Leder-
man, Raleigh, North Carolina, for Appellants. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Christine Witcover Dean, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Wesley Hodge and Cleve Frazier appeal their convictions after a
jury trial for conspiracy to distribute and possess with the intent to
distribute cocaine and cocaine base in violation of 21 U.S.C. § 846(1994). Defendant Hodge was sentenced to life imprisonment and ten
years of supervised release. Defendant Frazier was sentenced to 360
months of imprisonment and five years of supervised release. Defen-
dants allege that their convictions are not supported by sufficient evi-
dence. They also allege that the Government did not provide
exculpatory evidence and therefore their convictions should be
reversed. Finding no error, we affirm.
Frazier and Hodge were involved in drug distribution rings in
Mansfield, Harlowe, and New Bern, North Carolina. Kenny Spell
established a structured organization that was joined first by Hodge,
and later by Frazier. As the original organization began to deteriorate
due to member arrests and deaths, Frazier and Hodge began to operate
their own organizations made up in part from the original organiza-
tion members. Hodge and Frazier agreed with various co-conspirators
to supply and sell drugs for each other.
At trial, several law enforcement officers testified about the drug
investigations in the area and about the Defendants' arrests. Law
enforcement officers did not discover any drugs or drug paraphernalia
when they arrested the Defendants. The Government relied upon the
testimony of several co-conspirators, and Hodge's cellmate, to prove
the Defendants' involvement in the drug distribution conspiracy.
2
We review challenges to the sufficiency of the evidence by viewing
the evidence at trial in the light most favorable to the prosecution,
including all reasonable inferences that can be drawn from the evi-
dence. See Glasser v. United States, 315 U.S. 60, 82 (1942); United
States v. Russell, 971 F.2d 1098, 1109 (4th Cir. 1992). The district
court's assessment of the witness's credibility is not subject to review.
See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
The Defendants base their argument upon their claim that no rea-
sonable jury could have convicted them on the basis of the testimony
of law enforcement agents because they could not testify to the pres-
ence of any physical evidence of drugs, drug paraphernalia, or drug
distribution. They allege that the jury improperly relied upon the testi-
mony of convicted criminals hoping to reduce their sentences in
exchange for their testimony.
A conspiracy may be proven by circumstantial evidence, without
any physical evidence presented related to drug activity. See United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868). Further, a co-conspirator's uncorroborated testimony is
admissible and sufficient to support a conviction. See United States
v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). The Defendants do not
allege that the evidence was insufficient to support their convictions
if the jury believed the testimony of the co-conspirators. The testi-
mony of nine co-conspirators established that the Defendants took
many actions to further the goal of the conspiracy. They recruited
people to sell for them and obtain drugs for distribution. They
expanded their consumption market by buying and selling in Mans-
field, Harlowe, and New Bern, North Carolina. In addition, the co-
conspirators testified to the agreement by the Defendants to further
the conspiracy. The Defendants' reliance upon United States v. Bell,
954 F.2d 232 (4th Cir. 1992), is misplaced because in Bell, the co-
conspirators did not testify to an agreement. We therefore find that
there was sufficient evidence to support the convictions.
Defendants allege that the district court erred in allowing two Gov-
ernment witnesses to testify regarding the Defendants' involvement in
the drug conspiracy when the Government failed to produce the wit-
nesses' written lists of names of persons with whom they had dealt
3
drugs, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Michael Anderson, an alleged co-conspirator of the Defendants, testi-
fied that in early 1996, he provided a handwritten statement to George
Shaver of the New Bern, North Carolina, Police Department that
included a list of names of persons with whom he had dealt drugs.
Anderson testified that he did not remember if he included Defendant
Hodge's name on the list.
At the conclusion of Anderson's testimony, counsel for Hodge
moved for production of Anderson's handwritten list. The prosecutor
explained to the court that the list had been transcribed in Officer
Shaver's police report. The Government provided the report to
defense counsel during discovery. Hodge's counsel acknowledged
receipt of Shaver's report. During a voir dire examination outside the
presence of the jury, Anderson testified about his list and stated that
Shaver's report contained an accurate transcription of the list. Counsel
for Frazier then moved to dismiss the indictment or for a mistrial
because the Government had not produced Anderson's written list.
Counsel for Hodge moved to dismiss or strike Anderson's testimony
on the same basis. The district court reserved judgment on the issue.
The Government located Anderson's written list during trial. Ander-
son was recalled and both Defendants had the opportunity to cross-
examine Anderson regarding the list. Counsel for Hodge cross-
examined Anderson on the topic, but counsel for Frazier did not.
Government witness Harry Brown also provided a handwritten
statement to Officer Shaver in early 1996 that included a list of per-
sons with whom he dealt drugs. The prosecutor was unable to locate
Brown's handwritten statement upon the Defendants' request and told
the court that it had apparently been destroyed. Brown testified out-
side the presence of the jury that he provided Shaver with a handwrit-
ten document concerning this case. He testified that Defendant Hodge
was not mentioned in the document because he did not know Hodge.
Brown also testified that he did not mention Frazier in the document.
Brown then reviewed Shaver's report and testified that it accurately
reflected the contents of the handwritten document that he gave to
Shaver. Defense counsel asked the court to prohibit Brown from testi-
fying based upon an alleged violation of Brady and the Jencks Act,
18 U.S.C. § 3500 (1994). The court denied the motion because
4
defense counsel would have the opportunity to challenge the accuracy
of Shaver's report and cross-examine Brown about the document.
To determine if failure to provide the defense with favorable evi-
dence is a violation of due process, the defendant must show that the
undisclosed evidence was both favorable and material. See United
States v. Ellis, 121 F.3d 908, 915 (4th Cir. 1997), cert. denied, ___
U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-7095). Evi-
dence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the trial would
have been different. See United States v. Bagley , 473 U.S. 667, 682
(1985). If the evidence is available from other sources, there is no
Brady violation, even if the Government does not produce the evi-
dence. See United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990).
If the impeachment value of the undisclosed evidence is cumulative,
the evidence is not material because it does not alter the trial's out-
come.
The information in the written lists was available to the Defendants
through Officer Shaver's reports, which were produced during dis-
covery. This information was sufficient to allow Defendants to cross-
examine the witnesses about the lists that they gave to police and
question them about omitting the Defendants' names from the list.
Defense counsel also had the opportunity to interview Brown and
Anderson prior to trial; therefore the evidence was available from
other sources. See Wilson, 901 F.2d at 380.
Moreover, the Defendants were not prejudiced by the failure to
produce the witnesses' handwritten lists before Anderson's initial
cross-examination or Brown's cross-examination. The Defendants
had Officer Shaver's reports, which Anderson and Brown testified
were accurate with their handwritten lists. Because the Government
timely produced Shaver's reports, the handwritten lists were cumula-
tive evidence and their production before trial would not have altered
the outcome of the trial. Therefore, the district court did not err in
denying Defendants' motions for a mistrial or dismissal.
Finally, the Defendants contend that the trial court should not have
permitted Brown to testify because the Government was unable to
provide them with the witness's handwritten list of names prior to his
5
testimony and therefore the Government violated the Jencks Act. The
Defendants did have Officer Shaver's report of the contents of the list,
which the witness adopted.1
The failure to preserve potentially useful evidence only results in
a denial of due process if the defendant shows bad faith on the part
of the police. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988).2 A
defendant's due process rights are not violated when evidence is inad-
vertently lost. See United States v. Sanders, 954 F.2d 227, 231 (4th
Cir. 1992). The Defendants did not contend that the Government lost
or destroyed the document in bad faith. They allege only that the
Government's inability to produce the document is suspicious.
The Defendants do not attempt to show any bad faith on the part
of the police, or prejudice resulting from the loss or destruction of
Brown's statement. The prosecutor stated to the court that the police
officers searched all files and could not find the original handwritten
document given by Brown to the police over one year earlier. We find
that the Defendants do not demonstrate anything more than inadver-
tence. In addition, the Defendants do not demonstrate that even
assuming the Government produced Brown's handwritten list, in light
of the overwhelming evidence of their guilt, a reasonable probability
existed that the list would have changed the result of trial. See Bagley,
473 U.S. at 682-83. We therefore find that this claim is without merit.
We therefore affirm the judgments. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
_________________________________________________________________
1 Although Defendant Hodge complains of this error, Brown never tes-
tified about Hodge, except to say that he did not know him. Also, counsel
for Hodge did not cross-examine Brown. It does not appear to the court
that Hodge may allege prejudice from Brown's testimony.
2 The Defendants incorrectly assert that the Government had the burden
of proving that the statement was destroyed in good faith.
6