United States v. McDowell ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5605
ORIENTHIA JEROME MCDOWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-94-212)
Submitted: April 9, 1996
Decided: April 23, 1996
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Clifton T. Barrett, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Orienthia Jerome McDowell appeals his conviction and sentence
for conspiracy to possess with intent to distribute cocaine base, § 21
U.S.C.A. § 846 (West Supp. 1995), and carrying or using a firearm
during the commission of a drug crime. 18 U.S.C.A.§ 924(c)(1)
(West Supp. 1995). The court sentenced McDowell to 135 and 60
months, respectively. He now challenges the sufficiency of the evi-
dence, the admission of certain evidence, and the court's calculation
of his base offense level. Finding no error, we affirm.
The Government indicted McDowell for drug activity in the period
"prior to May 19, 1994, up to and including August 9, 1994, the exact
dates to the Grand Jurors unknown," and introduced testimony relat-
ing to his drug activity beginning in October 1993. While two under-
cover agents and another witness testified against McDowell, his
conviction was based primarily on the testimony of his coconspirator,
Brian Williams. Williams testified McDowell sold him cocaine base
approximately twenty to twenty-five times between October 1993 and
August 9, 1994, in half ounce, quarter ounce, and gram amounts. Wil-
liams also testified that he and McDowell planned the robbery of an
undercover agent to whom Williams sold cocaine base. After the
agent paid Williams for the drugs, McDowell robbed the agent while
holding a semi-automatic handgun to the agent's head.
First, McDowell claims the district court erred by denying his FED.
R. CRIM. P. 29 motion for judgment of acquittal. This court reviews
such a denial under a sufficiency of the evidence standard. United
States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505
U.S. 1228 (1992). To sustain a conviction, the evidence viewed in the
light most favorable to the government must be sufficient for a ratio-
nal jury to find the essential elements of the crime beyond a reason-
able doubt. United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.
1993).
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To support a conviction under § 846, the government must show
the existence of a conspiracy and the defendant's knowledge of and
voluntary joinder in that conspiracy. United States v. Bell, 954 F.2d
232, 236 (4th Cir. 1992). To support a conviction under § 924(c)(1),
the government must show the defendant actively employed a firearm
"during and in relation" to a drug trafficking offense. Bailey v. United
States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-
7448, 94-7492).
Looking at the evidence in the light most favorable to the Govern-
ment, Williams's testimony alone was sufficient to support Mc-
Dowell's conviction. The uncorroborated testimony of one witness
may be sufficient to sustain a guilty verdict, United States v.
Arrington, 719 F.2d 701, 705 (4th Cir. 1983), cert. denied, 465 U.S.
1028 (1984), even if the witness is a codefendant. United States v.
Burns, 990 F.2d 1426, 1439 (4th Cir.), cert. denied, ___ U.S. ___, 61
U.S.L.W. 3819 (U.S. June 7, 1993) (No. 92-8621). Williams testified
that McDowell provided him the cocaine base sold to the undercover
agent involved in the planned robbery, helped plan the robbery, and
supplied Williams continuously since October 1993 with cocaine
base. His testimony alone was sufficient to sustain Williams's convic-
tion.
Second, McDowell alleges the district court improperly admitted
Williams's testimony about McDowell's early drug activity. Mc-
Dowell claims the indictment precluded Williams from testifying
about any drug activity preceding May 19, 1994.
This claims fails because the indictment does not preclude such tes-
timony. Rather, it specifies that the criminal events occurred "prior to
May 19, 1994." The indictment specifically includes activity occur-
ring before May 19, thus notifying McDowell that such evidence may
be introduced.
Further, even if the indictment were construed to specify that the
criminal acts started on May 19, 1994, the district court did not abuse
its discretion by admitting Williams's testimony because it "``suffi-
ciently related to the charged offense.'" See United States v. Mark,
943 F.2d 444, 447-48 (4th Cir. 1991) (quoting United States v. Rawle,
845 F.2d 1244, 1247, n.3 (4th Cir. 1988)). Such testimony is admissi-
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ble if it is necessary to complete the story of the crime on trial. United
States v. Kennedy, 32 F.3d 876, 885-86 (4th Cir.), cert. denied, ___
U.S. ___, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No. 94-6500). Wil-
liams's testimony about McDowell's early drug activity completed
the story of the crime on trial by explaining their friendship, which
often centered on their joint drug activities. Williams's testimony
established his long-standing relationship with McDowell and his
knowledge of McDowell's activities which led to the charged offense.
Thus, the district court did not abuse its discretion by admitting the
testimony.
Third, McDowell claims the district court erred by relying on Wil-
liams's testimony to calculate McDowell's relevant conduct for his
base offense level. McDowell claims Williams's testimony was unre-
liable and uncorroborated. However, a district court may rely on the
uncorroborated hearsay testimony of a coconspirator to determine a
defendant's relevant conduct. United States v. Bowman, 926 F.2d 380,
381 (4th Cir. 1991). Further, McDowell offers no proof that the dis-
trict court's factual findings as to relevant conduct were clearly erro-
neous. See United States v. Adams, 988 F.2d 493, 495 (4th Cir. 1993).
McDowell offers only the insufficient conclusory allegations that
Williams was an unreliable witness.
Accordingly, we affirm McDowell's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the material before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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