United States v. Melvin ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5286
KEVIN JERMAINE MELVIN, a/k/a/
Baby-Boy,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-94-139-F)
Submitted: December 14, 1995
Decided: January 5, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Randy L. Havlicak, Special Assistant United States Attor-
ney, Fort Bragg, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kevin Jermaine Melvin appeals his convictions of conspiracy to
distribute cocaine and two counts of distributing cocaine. Melvin
claims that the district court erred by admitting testimony regarding
prior drug dealing and by enhancing his sentence for possession of a
firearm.
In September 1994, the United States Army Criminal Investigation
Division at Fort Bragg, North Carolina, began an investigation into
Melvin's alleged drug dealing. Government agents contacted Nathan-
iel Jackson and arranged for him to make controlled purchases of
crack cocaine from Melvin. Jackson made several such purchases
from Melvin.
At Melvin's trial, Jackson testified that he and Melvin had a drug
buyer/seller relationship for five months prior to the dates charged in
the indictment. Melvin contends that this testimony was inadmissible
under Fed. R. Evid. 404(b) and 403. Under Rule 404(b), a defendant's
prior bad acts are not admissible to show that he acted in conformity
therewith. However, such evidence may be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Fed. R. Evid.
404(b). This list is construed broadly to exclude evidence "which
tends to prove only criminal disposition." United States v. Powers, 59
F.3d 1460, 1464 (4th Cir. 1995) (quoting United States v. Percy, 765
F.2d 1199, 1203 (4th Cir. 1985)). This court permits evidence of a
defendant's prior bad acts if the evidence is relevant to an issue other
than character and if it is both necessary and reliable. United States
v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). The district court's
decision to admit such evidence will not be overturned unless it is
"arbitrary or irrational." Powers, 59 F.3d at 1464.
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Applying these principles, we find that the testimony at issue was
admissible under Rule 404(b). Jackson's testimony regarding his rela-
tionship with Melvin prior to the time charged in the indictment was
relevant to the issues of intent, knowledge and plan. Jackson's testi-
mony puts Melvin's actions in context with the elements of the con-
spiracy charge. There is a direct relationship between the testimony
that Jackson previously had a buyer/seller relationship with Melvin
and the acts charged in the indictment. See United States v. Masters,
622 F.2d 83, 86 (4th Cir. 1980) (holding that evidence is necessary
where it establishes the context of the crime charged); see also United
States v. Smith, 446 F.2d 200, 204 (4th Cir. 1971). Finally, we find
that the testimony was not unduly prejudicial under Fed. R. Evid. 403.
Melvin maintains that the evidence was unreliable because there
was no corroborating evidence to support Jackson's testimony of a
buyer/seller relationship prior to the acts charged in the indictment.
However, there is no requirement for such corroboration. United
States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992). And the
weight and credibility of Jackson's testimony is exclusively a jury
question not subject to review on appeal. United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989).
Melvin also contends that the district court improperly enhanced
his sentence for possession of a firearm because the district court dis-
missed a firearms count in his indictment upon his Fed. R. Crim. P.
29 motion at the close of evidence. United States Sentencing Com-
mission, Guidelines Manual, § 2D1.1(b)(1) (Nov. 1994). This court
has expressly upheld the enhancement of a defendant's sentence
under USSG § 2D1.1(b)(1) for possession of a firearm where the
defendant had been acquitted of the corresponding 18 U.S.C. § 924(c)
(1988) count at trial. United States v. Romulus , 949 F.2d 713, 717
(4th Cir. 1991) ("It is well settled that acquitted conduct may properly
be used to enhance a sentence once a requisite finding is made by the
sentencing judge."), cert. denied, 503 U.S. 992 (1992). The district
court's finding on this issue is reviewed for clear error.
Jackson testified that on his September 24 trip to purchase cocaine
from Melvin, he saw a Glock handgun on the table where Melvin was
sitting and five semi-automatic weapons under the table in the room
with Melvin and some other individuals. We find this evidence suffi-
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cient to sustain the enhancement of Melvin's sentence. Accordingly,
we affirm Melvin's conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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