United States v. Beeks , 55 F. App'x 660 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4574
DAVID LAMONT BEEKS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-01-828)
Submitted: January 30, 2003
Decided: February 7, 2003
Before WIDENER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Falkner Wilkes, MEGLIC & WILKES, L.L.C., Greenville, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attor-
ney, Regan A. Pendleton, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
2 UNITED STATES v. BEEKS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David Lamont Beeks appeals his conviction for conspiracy to pos-
sess with intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 846 (2000). Beeks was convicted following
a jury trial in the District Court of South Carolina and was sentenced
to 325 months of imprisonment, followed by a five-year term of
supervised release. Finding no reversible error, we affirm.
First, Beeks contends that the district court’s failure to take correc-
tive action when the Government made references to the co-
conspirator’s guilty pleas constituted plain error. Because Beeks did
not object to the references at trial, this claim is reviewed for plain
error. Under the plain error standard, Beeks must show: (1) there was
error; (2) the error was plain; and (3) the error affected substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). Even when
these conditions are satisfied, we may exercise our discretion to
notice the error only if the error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Id. (internal
quotation marks omitted).
Guilty pleas or convictions of non-testifying co-defendants or co-
conspirators are not admissible as substantive evidence of the defen-
dant’s guilt. See United States v. Blevins, 960 F.2d 1252, 1260-61 (4th
Cir. 1992). However, when a co-defendant or co-conspirator pleads
guilty and later testifies, evidence of the guilty plea may be intro-
duced to aid the jury in assessing the co-defendant’s credibility as a
witness. See United States v. Withers, 100 F.3d 1142, 1145-46 (4th
Cir. 1996) (noting that in Blevins, 960 F.2d at 1260-61 n.3, this court
"expressed doubt that the mention of a guilty plea by a testifying co-
defendant . . . would be error since the defendant would have the
opportunity to cross-examine the witness").
UNITED STATES v. BEEKS 3
Beeks contends that the Government’s use of the co-conspirator’s
guilty pleas on direct examination clearly exceeded any permissible
purpose. Although the Government asked each co-conspirator about
their guilty plea, we conclude that the Government used this evidence
for the proper purpose of anticipating impeachment. The Government
merely asked whether the co-conspirators had pled guilty to the con-
spiracy charge and whether the Government promised them anything
in return for their guilty plea.
Beeks also argues that the Government improperly emphasized the
co-conspirator’s guilty plea in its closing arguments to the jury. To
constitute reversible error based on prosecutorial misconduct, (1) the
prosecutor’s remarks or conduct must have been improper; and (2) the
remarks or conduct must have prejudicially affected the defendant’s
substantial rights so as to deprive him of a fair trial. United States v.
Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). We have reviewed the
record and conclude that, even if the Government’s comments during
its closing arguments were improper, the comments did not affect
Beeks’ substantial rights so as to deprive him of a fair trial in light
of the overwhelming evidence to support the conspiracy charge.
Testimony from five co-conspirators established that there existed
a large scale drug conspiracy. The leader of the conspiracy testified
that he explained his drug activity to Beeks, invited him to be a party
of that drug activity, and that Beeks accepted the invitation. He fur-
ther testified that Beeks averaged a profit of approximately $7,500 to
$9,000 a week in connection with his drug activity. Other co-
conspirators testified that they personally saw Beeks buy cocaine and
cocaine base from Barnes and sell it. Thus, there was overwhelming
evidence showing that a conspiracy existed, that Beeks knew of this
conspiracy, and knowingly and voluntarily became a part of the con-
spiracy.
Finally, Beeks contends that there was insufficient evidence to find
him guilty beyond a reasonable doubt. We must uphold Beeks’ con-
viction on appeal if there is substantial evidence in the record to sup-
port it. See Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial, we
view the evidence in the light most favorable to the government and
inquire whether there is evidence that a reasonable finder of fact
4 UNITED STATES v. BEEKS
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) (en banc). We conclude that there
was sufficient evidence to support Beeks’ conviction. Accordingly,
we affirm.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED