United States v. Nelson ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4212
CATRA NELSON,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4236
TERRY BOCOOK,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4244
LEROY NELSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Joseph Robert Goodwin, District Judge.
(CR-99-93)
Submitted: December 13, 2000
Decided: January 18, 2001
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
2 UNITED STATES v. NELSON
Affirmed by unpublished per curiam opinion.
COUNSEL
William E. Kiger, KIGER & SHAN, Parkersburg, West Virginia;
Gregory J. Campbell, CAMPBELL & TURKALAY, Charleston,
West Virginia; John R. McGhee, Jr., KAY, CASTO & CHANEY,
Charleston, West Virginia, for Appellants. Rebecca A. Betts, United
States Attorney, Miller A. Bushong, III, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Catra Nelson, Leroy Nelson, and Terry Bocook were charged in a
superseding indictment with conspiracy to distribute and possess with
intent to distribute cocaine, in violation of 21 U.S.C.A. § 846 (West
1999), and one count of aiding and abetting the possession with intent
to distribute cocaine, in violation of 21 U.S.C.A. § 841 (West 1999),
18 U.S.C. § 2 (1994). They were tried together, and the jury convicted
each Defendant on both counts of the indictment. Each Defendant
was sentenced to 121 months in prison. Defendants each filed a
timely appeal. We find no merit to their claims; consequently, we
affirm.
I
Bocook argues that the district court erred by denying his motion
for severance. Generally, defendants who are indicted together should
be tried together, particularly when they have been charged with con-
spiracy. United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996). At
UNITED STATES v. NELSON 3
the pretrial hearing, Bocook argued that severance was warranted
because he planned to call Catra Nelson and Leroy Nelson as wit-
nesses. However, Bocook failed to show that the Nelsons likely
would testify and waive their Fifth Amendment privilege or that their
testimony would be exculpatory. United States v. Parodi, 703 F.2d
768, 779 (4th Cir. 1983). Moreover, although he argued that the bulk
of the evidence concerned the Nelsons, disparity in the evidence
introduced against different defendants is a proper ground for sever-
ance only in extreme circumstances not present in this case. United
States v. Mitchell, 733 F.2d 327, 331 (4th Cir. 1984). Consequently,
we find that the district court did not abuse its discretion in denying
Bocook’s motion for severance.
II
Leroy Nelson argues that the district court erred by failing to sup-
press evidence concerning the cocaine seized from the trunk of his
girlfriend’s car. It is undisputed that Nelson’s girlfriend consented to
the search of her car. Even if, as Nelson contends, his possession of
the car keys gave him an expectation of privacy in the car, it did not
terminate or overcome his girlfriend’s concurrent authority to con-
sent. Cf. United States v. Carter, 569 F.2d 801, 803-04 (4th Cir.
1977). Therefore, the district court properly denied Nelson’s motion
to suppress this evidence. United States v. Raymond, 152 F.3d 309,
311 (4th Cir. 1998) (providing standard of review).
III
Next, Catra Nelson argues that the district court should not have
admitted evidence of $53,050 in cash seized from his backpack at an
airport during the time of the conspiracy. "[E]vidence of unexplained
wealth is relevant in a narcotics prosecution as evidence of illegal
dealings and ill-gotten gains." United States v. Grandison, 783 F.2d
1152, 1156 (4th Cir. 1986). In light of Nelson’s failure to offer any
plausible explanation for his possession of this cash, we find that the
district court did not abuse its discretion by admitting testimony about
this unexplained wealth. United States v. Hassouneh, 199 F.3d 175,
183 (4th Cir. 2000) (stating standard of review).
4 UNITED STATES v. NELSON
IV
Leroy Nelson asserts that the district court erred in calculating the
quantity of drugs attributable to him for sentencing purposes. The evi-
dence presented at trial showed that Leroy Nelson was involved in the
conspiracy from its beginning to when it ended with the arrests of
Catra Nelson and Leroy Nelson. One witness testified that he pur-
chased between fifteen and twenty ounces of cocaine from Leroy Nel-
son during the course of the conspiracy. Another witness testified that
Leroy Nelson sold him cocaine and then introduced him to Catra Nel-
son from whom the witness bought cocaine in one-ounce quantities
about once a week for five or six months. Leroy Nelson was present
at least once or twice during these exchanges. This same witness trav-
eled with the two Nelsons from Parkersburg, West Virginia, to
Zaynesville, Ohio, where they met with Terry Bocook. Leroy Nelson
also was in the car with Catra Nelson for the delivery of approxi-
mately one kilogram of cocaine on the day that both men were
arrested. Moreover, approximately one kilogram of cocaine was
seized from the trunk of a car belonging to Leroy Nelson’s girlfriend
shortly after the men were arrested, and Leroy Nelson had the only
set of keys to that car. We find that, in light of this evidence, the dis-
trict court did not clearly err by attributing to Leroy Nelson 5.81 kilo-
grams of cocaine.
V
Finally, Leroy Nelson and Terry Bocook argue that their sentences
are illegal under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
Neither of these Defendants were sentenced above the statutory maxi-
mum provided in 21 U.S.C.A. § 841(b)(1)(C) (West 1999). Therefore,
their convictions do not implicate the concerns raised in Apprendi.
United States v. Angle, 230 F.3d 113, 123 (4th Cir. 2000), pet. for
reh’g filed (4th Cir. Oct. 26, 2000) (No. 96-4662).
VI
For these reasons, we affirm Defendants’ convictions and sen-
tences. 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 the decisional process.
AFFIRMED