United States v. Pennix ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4575
RONALD LEE PENNIX,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4576
FRANKLIN ROOSEVELT WEST, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CR-93-63)
Argued: April 9, 1998
Decided: May 20, 1998
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Joseph Abraham Sanzone, JOSEPH A. SANZONE
ASSOCIATES, Lynchburg, Virginia, for Appellant Pennix; Melissa
Windham Friedman, Roanoke, Virginia, for Appellant West. Anthony
Paul Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: Anthony F. Anderson, Roanoke, Virginia, for
Appellant West. Robert P. Crouch, Jr., United States Attorney, Roa-
noke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted Franklin Roosevelt West, Jr. and Ronald Lee Pen-
nix for their participation in a large scale narcotics conspiracy. The
district court sentenced West to 292 months imprisonment and Pennix
to 181 months imprisonment. West and Pennix appeal, asserting sev-
eral trial and sentencing errors. Finding no error, we affirm.
I.
The evidence at trial demonstrated that West and Pennix partici-
pated in a large, loose-knit conspiracy to distribute crack and powder
cocaine between January 1993 and November 1996 in Lynchburg and
Campbell County, Virginia. West was a major supplier of both crack
and powder cocaine, which was then sold by many of West's under-
lings, including Pennix.
On June 13, 1996, Lynchburg police, acting on a confidential tip
that Pennix had twice sold cocaine from his residence within a
24-hour period, arrested Pennix at his home. In conjunction with this
arrest, police seized a loaded .380 caliber handgun and a digital pager
from Pennix's person, 22.82 grams of crack cocaine from his back
yard hidden in a can near an oil tank, a nine millimeter handgun from
his bedroom, $800 from a dresser drawer and $5,810 of currency
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stored in a briefcase. Police also found digital scales and ammunition
in the kitchen, and firearms in other locations throughout the house.
Based on Pennix's role in the conspiracy, he was charged with and
convicted of conspiracy to distribute cocaine in violation of 21
U.S.C.A. § 846 (West 1981 & Supp. 1997), distribution of cocaine
base in violation of 21 U.S.C.A. § 841(a)(1) (West 1981 & Supp.
1997), and possession of a firearm in relation to a drug trafficking
offense, in violation of 18 U.S.C.A. § 924(c)(1) (West Supp. 1997).
Pennix also forfeited the $6,610 seized during the search of his home
pursuant to 21 U.S.C.A. § 853 (West Supp. 1997).
West was charged with conspiracy to distribute crack and powder
cocaine in violation of 21 U.S.C.A. § 846, and with engaging in a
continuing criminal enterprise in violation of 21 U.S.C.A. § 848(West 1981 & Supp. 1997). The jury convicted West of the conspir-
acy charge but acquitted him of the continuing criminal enterprise
charge.
On appeal, both Pennix and West challenge their convictions; Pen-
nix also challenges his sentence. We first turn to Pennix's arguments,
and then to those of West.
II.
A.
Pennix initially claims that the district court erred in denying his
proposed instruction regarding the evidence necessary to sustain a
conspiracy conviction. Pennix's proposed instruction states:
A buyer or seller of illegal substances does not automati-
cally become a member of a conspiracy. The prosecution
must establish beyond a reasonable doubt that the
[d]efendant knew the existence and scope of the conspiracy
and sought to promote its success. The relationship of buyer
and seller absent any prior or contemporaneous understand-
ing beyond the mere sales agreement does not prove a con-
spiracy.
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Pennix argues that the court's failure to include this instruction
misled the jury into believing that a simple association with conspira-
tors through several mere buy-sell transactions is enough to establish
participation in the conspiracy. We reject Pennix's claim because the
actual jury charge substantially included Pennix's proposed instruc-
tion.
The district court's denial of a requested jury instruction is
reviewed only for abuse of discretion. See United States v. Stotts, 113
F.3d 493, 496 (4th Cir. 1997). A district court abuses its discretion
only if the instruction: "(1) was correct; (2) was not substantially
covered by the court's charge to the jury; and (3) dealt with some
point in the trial so important, that failure to give the requested
instruction seriously impaired the defendant's ability to conduct his
defense." United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (quot-
ing United States v. Camejo, 929 F.2d 610, 614 (11th Cir. 1991)).
Here, the district court instructed the jury that
a conspiracy is a combination or an agreement of two or
more persons to join together to attempt some unlawful pur-
pose. . . . [M]ere similarity of conduct among various per-
sons and the fact that they may have associated with each
other and may have assembled together and discussed com-
mon aims and interests does not necessarily establish proof
of the existence of a conspiracy. . . . [P]roof of a single buy
relationship standing alone would not be sufficient evidence
to establish a conspiracy to distribute a controlled
substance.
Accordingly, because the district court correctly conveyed to the jury
that evidence of a mere buy-sell relationship as well as evidence of
mere association does not constitute a conspiracy, no error occurred.
B.
Pennix next argues that the district court abused its discretion in
providing the jury with a copy of the indictment but not of the jury
instructions. Pennix claims that in light of the complexity of his case,
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failure to give a copy of the instructions to the jury led to unfair con-
fusion and predisposed the jury to the government's case.
We review the district court's decision to provide the jury with
copies of the indictment and jury instructions for abuse of discretion.
See United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986)
(submission of indictment); United States v. Sotelo, 97 F.3d 782, 792
(5th Cir.) (submission of jury instruction), cert. denied, 117 S. Ct. 620(1996). Pennix's case was not so complex that the jury would require
a copy of the jury instructions. Pennix was tried with only West and
one other co-defendant, John Martin (who plead guilty during the
trial), on three simple drug and firearms violations. Moreover, Pennix
has not produced any evidence that the district court's decision not to
provide the jury a copy of the instructions resulted in unfair prejudice
or confusion. Accordingly, the court did not abuse its discretion.
Pennix nonetheless claims that the Eighth Circuit's decision in
United States v. Van Dyke, 14 F.3d 415 (8th Cir. 1994) compels a
finding in his favor. Pennix is mistaken. Because the trial in Van Dyke
pertained to a complex series of transactions and a multiple count
indictment involving bank fraud, the Eighth Circuit found that the dis-
trict court's failure to provide a copy of the jury instructions along
with a copy of the indictment led to a rare instance of reversible error.
Id. at 422. Numerous other errors at trial, however, also contributed
to reversal in Van Dyke. The district judge constantly made inappro-
priate and prejudicial comments in front of the jury, failed to charge
the jury orally with all of the instructions, and had not reduced any
of the instructions to writing. Id. at 418, 423. Once deliberations
began, the Van Dyke jury also expressly requested a copy of the
instructions, which the court initially refused to provide. Id. at 423.
Consequently, the Eighth Circuit reasoned that "while there is perhaps
no single instance involving error so prejudicial to warrant reversal,
we are convinced that, considered as a whole, the rights of the defen-
dant were so prejudiced thereby as to deprive [him] of that fair and
impartial trial." Id. at 424 (emphasis added) (internal quotations and
citations omitted).
Pennix's trial, by contrast, suffered from none of these infirmities.
As we have stated, Pennix's trial was hardly complex, and the trial
judge presided over Pennix's case with equanimity and decorum,
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committing none of the trial errors found in Van Dyke. Thus, Pennix
garners little support from a case so factually dissimilar to his own as
Van Dyke.
C.
Pennix finally claims that the district court erred in converting the
currency seized from his home into its drug equivalent for purposes
of calculating his sentence. Pennix specifically contends that the
$6,610 seized from his bedroom dresser and briefcase was not pro-
ceeds from narcotics sales but rather income from such lawful
employment as working at a car wash, breeding rottweiler dogs, and
selling refurbished vehicles. Pennix, however, provided no evidence
that this money derived from lawful sources, and so we reject his
claim.
We review the district court's calculation of drug amounts only for
clear error. United States v. Hicks, 948 F.2d 877, 881 (4th Cir. 1991).
When calculating the amount of narcotics attributable to defendant,
the court should include all relevant quantities of drugs in this calcu-
lation. See U.S.S.G. § 2D1.1 comment. 12 ("Types and quantities of
drugs not specified in the count of conviction may be considered in
determining the offense level"); U.S.S.G. § 1B1.3(a)(2) (relevant con-
duct provision). Seized currency may be converted to its drug equiva-
lent for purposes of sentencing where the government furnishes some
evidence that the seized currency derived from the defendant's drug
related activity. See Hicks, 948 F.2d at 882 (cash seized from defen-
dant's home should be considered as relevant conduct and used in
determining the base offense level); see also United States v. Otis,
127 F.3d 829, 836 (9th Cir. 1997) (where evidence connects money
seized to drug related activities, conversion is proper), cert. denied
sub nom., Romo v. United States, 118 S. Ct. 1400 (1998); United
States v. Rios, 22 F.3d 1024, 1027-28 (10th Cir. 1994) (same); United
States v. Rivera, 6 F.3d 431, 446 (7th Cir. 1993) (same).
Here the government demonstrated an adequate connection
between the seized currency and Pennix's drug activity. At least one
witness testified that he regularly purchased narcotics from Pennix for
over two years at the same home where the money was found. The
currency seized was also an unusually large sum for Pennix's admit-
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ted earning capacity, and was found along with guns, a scale, and
crack cocaine. See United States v. Jackson, 3 F.3d 506, 511 (1st Cir.
1993)("When drug traffickers possess large amounts of cash in ready
proximity to their drug supply, a reasonable inference may be drawn
that the money represents drug profits").
Pennix, on the other hand, did not offer an alternative legitimate
explanation for the source of the drug proceeds. Pennix's presentenc-
ing report notes that he earned about $200 a week from his most
recent job at a car wash, and that his most sizeable earnings to date
amounted to $2,728 from his eight-month stint in 1992 as a bag boy
in a grocery store. Although Pennix claims to have earned the seized
currency breeding rottweiler dogs, only Pennix's father, who is hardly
an unbiased witness, testified in the vaguest generalities to Pennix's
alternative sources of income. Because "[t]he judge present at the sen-
tencing hearing is in the best position to determine the credibility of
the witnesses and the source of the currency," the district court did not
err in discrediting Pennix's "remotely plausible, lawful explanation
for the monies," and thus converting the seized currency into its drug
equivalent. Id. at 512.
III.
Finally, we turn to West's challenge to his conviction.
West argues that the district court's Allen charge impermissibly
coerced the jury's verdict because the charge did not include a
reminder to the jurors in the majority to consider the views of those
in the minority.
We review the district court's decision to give an Allen charge as
well as its contents for abuse of discretion. United States v. Cropp,
127 F.3d 354, 359 (4th Cir. 1997), cert. denied , 118 S. Ct. 898 (1998).
For an Allen charge to be proper, it "must not coerce the jury, and it
must be fair, neutral and balanced." Id. at 359-60; see also United
States v. Burgos, 55 F.3d 933, 936 (4th Cir. 1995). We have repeat-
edly noted that "the most egregious mistake that can be made in the
context of an Allen charge is for a district court to suggest, in any
way, that jurors surrender their conscientious convictions." Cropp,
127 F.3d at 360 (quoting Burgos, 55 F.3d at 939); see also Carter v.
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Burch, 34 F.3d 257, 265 (4th Cir. 1994). We have also stressed that
a proper Allen charge instructs jurors in the majority to consider the
views of the minority and vice versa. Cropp, 127 F.3d at 360. How-
ever, we have been reluctant to proscribe a set formula for an Allen
charge, but rather "leave to the particular judge the task of formulat-
ing his or her complete instruction." Burgos , 55 F.3d at 941 n.9. Thus,
so long as the specific Allen charge at issue sufficiently conveys the
above principles, we will uphold its validity.
Here, the district court's Allen charge, although not a model of
clarity, was adequate. The court stressed to the jury that "no juror is
expected to yield to a conscientious conviction he or she may have,"
and that each juror must arrive at his or her verdict "without surren-
dering your conscientious convictions." The court also added that "if
a substantial majority . . . are for a conviction, each dissenting juror
ought to consider whether a doubt in his or her own mind is a reason-
able one;" and "on the other hand, if a majority or even a lesser num-
ber of you are for acquittal, the other jurors ought seriously to ask
themselves whether they do not have a reason to doubt the correctness
of [their] judgment" in light of the other juror's views. Accordingly,
the charge was sufficient to withstand Pennix's challenge.
Indeed, "the jur[ors'] own behavior reassures us that they were not
coerced by the instruction." Cropp, 127 F.3d at 360. We have previ-
ously found that a mixed verdict following an Allen charge strongly
suggests that the jury was not coerced. Id. After the Allen charge here,
the jury returned a verdict of guilty on the conspiracy charge but not
guilty on the continuing criminal enterprise charge. This mixed ver-
dict, combined with the charging language itself, sufficiently assures
us that the jury was not coerced by the Allen charge in this case.
AFFIRMED.
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