United States v. Dollard ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4747
RUBY LEE BERNICE DOLLARD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-27)
Submitted: February 24, 1998
Decided: September 21, 1998
Before ERVIN, NIEMEYER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
I. S. Leevy Johnson, Columbia, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Kelly E. Shackelford, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ruby Lee Bernice Dollard appeals her convictions for (1) conspir-
acy to possess with intent to distribute cocaine and cocaine base, 21
U.S.C.A. § 846 (West Supp. 1997), (2) attempted possession of
cocaine with the intent to distribute, 21 U.S.C.§ 841(a)(1) (1994),
and (3) possession of cocaine base (crack), 21 U.S.C. § 841(a)(1).
Finding no merit in the four claims raised on appeal, we affirm.
I
An informant told law enforcement officials that on January 6,
1996, a man transporting cocaine would arrive at the Kingstree, South
Carolina, Amtrak station on the evening northbound train. Agents set
up surveillance at the station and approached Jeffrey Ford. They
noticed a package containing nine ounces of cocaine on the ground
where Ford had been standing. They arrested Ford, who stated that he
had brought the cocaine from Florida and had intended to deliver it
to Dollard. Ford stated that he had previously obtained drugs in Flor-
ida and delivered them to Dollard.
Ford agreed to cooperate with investigators and to participate in a
controlled delivery of cocaine to Dollard. On January 8, officers gave
him a package containing a substance resembling cocaine. Ford was
fitted with a body recording and transmitting device. He then paged
Dollard, and she picked him up in her truck and drove him to her
home in Stuckey, South Carolina.
Agents followed the truck to the Dollard residence. Dollard and
Ford entered the house, and Ford showed her the package of fake
cocaine. Dollard opened the package, tasted the substance, and stated
that it was not cocaine. Agents monitoring the conversation then
entered the home and arrested Dollard. After obtaining a search war-
rant, agents seized from her home the package containing the fake
cocaine and $10,010 in cash. They seized from the front seat of her
truck a cigarette case containing 25.53 grams of crack cocaine.
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Among the witnesses at Dollard's jury trial were Ford and Joe "Bo"
McFadden, who testified that on several occasions he had purchased
crack from Dollard at her home. The jury convicted Dollard on all
three counts of the indictment. Dollard was sentenced to concurrent
terms of ninety months.
II
Dollard complains that there was insufficient evidence to convict
her of possession of cocaine base. We sustain a jury's verdict "if there
is substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
"[S]ubstantial evidence is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (in banc), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868).
To sustain a conviction for possession of a controlled substance
with intent to distribute it, the government must"prove beyond a rea-
sonable doubt that the defendant (1) knowingly (2) possessed a con-
trolled substance (3) with the intent to distribute it." United States v.
Samad, 754 F.2d 1091, 1096 (4th Cir. 1984). Possession may be
actual or constructive. "[T]o establish constructive possession the
government must show ownership, dominion or control over the drug
or the premises or vehicle in which it was concealed." United States
v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993). Actual or constructive
possession may be established by direct or circumstantial evidence.
See United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).
Here, there was sufficient evidence to support Dollard's conviction
under § 841(a)(1). Bo McFadden testified that he had purchased crack
from Dollard at her residence several months earlier. Officers discov-
ered crack inside the truck which Dollard drove when she picked up
Ford and transported him to her home, where she anticipated consum-
mating a drug deal with him. Dollard clearly had the power to exer-
cise dominion and control over the truck, where the crack was
discovered. Under these circumstances, substantial evidence supports
the jury's finding that she possessed the crack with the intent to dis-
tribute it.
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III
Dollard contends that the district court improperly limited the
cross-examination of Ford. We review limitations on cross examina-
tion for abuse of discretion. See United States v. McMillon, 14 F.3d
948, 955-56 (4th Cir. 1994).
The record reveals no abuse of discretion. Defense counsel
inquired extensively about Ford's trips to Florida, where he obtained
cocaine that he delivered to Dollard and others in South Carolina.
Counsel inquired where Ford obtained the cocaine, how much he paid
for it, how he traveled to obtain it, and what profit he made on the
transactions. Only when counsel began asking repetitive questions did
the court limit cross-examination. This was an entirely appropriate
restriction.
IV
Bo McFadden testified that he bought crack from Dollard at her
residence two or three times in the summer of 1995. Dollard asserts
that the district court permitted McFadden's testimony in violation of
Fed. R. Evid. 404(b). We review the district court's decision to admit
this evidence for abuse of discretion. See United States v. Chin, 83
F.3d 83, 87 (4th Cir. 1996).
Rule 404(b) permits evidence of other crimes, wrongs, or acts to
prove motive, opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident. It is an inclusive rule, exclud-
ing only evidence which has no purpose other than to show criminal
disposition. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir.
1997). Under Rule 404(b), evidence which is relevant to any issue
other than character, necessary, and reliable is admissible, provided
it is not more prejudicial than probative. See id. at 195-96.
In United States v. Queen, 132 F.3d 991, No. 96-4085, 1997 WL
790470 (4th Cir. Dec. 29, 1997), we recently held:
that evidence of prior acts becomes admissible . . . if it
meets the following criteria: (1) The evidence must be rele-
4
vant to an issue, such as an element of an offense, and must
not be offered to establish the general character of the defen-
dant. In this regard, the more similar the prior act is (in
terms of physical similarity or mental state) to the act being
proved, the more relevant it becomes. (2) The act must be
necessary in the sense that it is probative of an essential
claim or an element of the offense. (3) The evidence must
be reliable. And (4) the evidence's probative value must not
be substantially outweighed by confusion or unfair prejudice
in the sense that it tends to subordinate reason to emotion in
the fact-finding process.
Id. at *6.
Under these authorities, admission of McFadden's testimony was
not an abuse of discretion. The activity testified to, purchase of crack
from Dollard at her residence, is very similar to the act charged in this
case. It is probative of Dollard's motive and intent to distribute crack.
The evidence was reliable: the jury was aware that McFadden was
testifying in an attempt to receive favorable treatment in connection
with drug charges against him, and evaluated the testimony with this
knowledge. Finally, the testimony was not inflammatory and would
not reasonably be expected to have produced a verdict grounded in
emotion rather than reason.
V
Finally, Dollard asserts that she should have been permitted to
examine certain summaries of interviews prepared by FBI agents. The
district court reviewed these documents in camera and concluded that
only one summary pertained to Dollard. The court ruled the summary
not discoverable because the government did not intend to call the
witness or otherwise use the information contained in the summary at
trial. The district court's ruling was correct; the documents did not
constitute Jencks Act material because the witness did not testify at
Dollard's trial. See United States v. Roseboro , 87 F.3d 642, 645-46
(4th Cir. 1996). The material was therefore not discoverable.
VI
We accordingly affirm Dollard's convictions. We dispense with
oral argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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