United States v. Dorsey ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4460
ELROY DORSEY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4492
ANDRE CALVIN BLAKE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4616
DONNELL RICHARD NELSON, a/k/a D,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-00-290-AW)
Argued: May 6, 2002
Decided: October 21, 2002
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
2 UNITED STATES v. DORSEY
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: George Zacharias Petros, Camp Springs, Maryland, for
Appellants. Mythili Raman, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, Greenbelt, Maryland,
for Appellee. ON BRIEF: Jensen E. Barber, LAW OFFICE OF JEN-
SEN E. BARBER, P.C., Washington, D.C., for Appellant Nelson;
Joseph R. Conte, BOND, CONTE & NORMAN, P.C., Washington,
D.C., for Appellant Dorsey.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Elroy Dorsey, Andre Blake, and Donnell Nelson were
convicted of conspiracy to distribute cocaine. Each of the appellants
challenges his conviction, and Blake challenges his 151 month sen-
tence. Finding their contentions to be without merit, we affirm.
I.
The indictment charged that Dorsey, Blake, and Nelson conspired
with eight other named defendants and with "others known and
unknown to the Grand Jury" to distribute and to possess with intent
to distribute cocaine and cocaine base. The jury convicted the appel-
lants on this conspiracy charge, but the appellants contend that a vari-
ance occurred between the allegations in the indictment and the proof
at trial. Specifically, they maintain that Blake did not join the single
drug conspiracy described in the indictment, but rather participated in
a separate drug conspiracy unrelated to the charged conspiracy.
UNITED STATES v. DORSEY 3
At trial, Blake took the stand in his own defense and, although
Blake admitted that he sold drugs to Stephen Langley, one of the co-
conspirators named in the indictment, J.A. at 1132, 1136-39, 1140-41,
Blake volunteered his additional drug activities with James Treem
and Troy Adams, individuals not named in the indictment, in an effort
to characterize his involvement in the drug trade as unrelated to the
organization described in the indictment. J.A. 1101-02. Relying on
Blake’s testimony, each of the appellants asked the district court to
instruct the jury as follows:
You must determine whether the conspiracy charged in the
indictment existed, and, if it did, whether Andre Blake was
a member of it. If you find that the conspiracy charged did
not exist, then you must return a not guilty verdict, even
though you find that some other conspiracy existed. If you
find the defendant Andre Blake was not a member of the
conspiracy charged in the indictment, then you must find
that defendant not guilty, even though that defendant may
have been a member of some other conspiracy.
J.A. 188. The district court refused to give this proposed instruction
on the grounds that the evidence at trial failed to show that Blake was
only involved in a separate conspiracy unrelated to the overall con-
spiracy charged in the indictment. J.A. 1180.
We agree with the district court that the proposed jury instruction
would have been improper. A defendant does not become entitled to
a multiple conspiracy instruction by volunteering at trial his involve-
ment in additional criminal conspiracies that may not have been
charged or described in the indictment. Rather, the evidence at trial
must show that the defendant seeking the multiple conspiracy instruc-
tion participated only in "separate conspiracies unrelated to the overall
conspiracy charged in the indictment." United States v. Kennedy, 32
F.3d 876, 884 (4th Cir. 1994). No multiple conspiracy instruction was
appropriate here because there was ample evidence at trial that Blake
was a conspirator in the organization described in the indictment,
even if we accept his characterization of his activities with Treem and
Adams as outside the scope of the charged conspiracy. Blake himself
admitted that he repeatedly sold cocaine to Langley, J.A. 1131, that
he knew the cocaine was not for Langley’s personal use, J.A. 1147,
4 UNITED STATES v. DORSEY
and that he knew Langley was reselling the drugs to other people, J.A.
1169. Other testimony, including intercepted conversations, demon-
strated Blake’s role as a regular supplier to Langley of powder
cocaine, which would then be converted into crack cocaine and dis-
tributed by the other members of the conspiracy.
For these reasons, we conclude the district court properly refused
to give a multiple conspiracy instruction, and we further reject
Blake’s additional argument that the evidence at trial was insufficient
to support his conviction on the single conspiracy charge.
II.
Nelson raises another challenge to the district court’s jury instruc-
tions, claiming that the district court erred by failing to give his pro-
posed "theory of defense" instruction, which read as follows:
I specifically instruct you that you may not infer that Don-
nell Nelson is guilty of participating in criminal conduct
merely from the fact that he associated with other people
who may be guilty of wrongdoing. As a matter of law, mere
association with conspirators or those involved in a criminal
enterprise is insufficient to prove Mr. Nelson’s participation
or membership in a conspiracy. The fact that Mr. Nelson
lived with Mr. Langley alone is not sufficient evidence for
you to find him guilty of any wrongdoing. Mr. Nelson may
not be found guilty merely because he was present at vari-
ous times during which criminal acts may have been
undertaken.
J.A. 186. Nelson’s proposed instruction is a correct statement of the
law, but redundant in light of the district court’s charge to the jury,
which included the following statement:
I want to caution you, however, that a defendant’s mere
presence at the scene of the alleged crime does not by itself
make him a member of the conspiracy. Similarly, mere
association with one or more members of the conspiracy by
itself does not automatically make the defendant a member.
UNITED STATES v. DORSEY 5
A person may know or be friendly with a criminal without
being a criminal himself.
J.A. 1242. The law of our circuit does not require the information
overload that Nelson seeks, see United States v. Heater, 63 F.3d 311,
326 (4th Cir. 1995) ("We will not reverse a conviction based on
improper jury instructions as long as the instructions given by the dis-
trict court, as a whole, included the substance of the defendant’s
requested conspiracy charge."), and we decline to reverse his convic-
tion on these grounds.
III.
Turning to Blake’s challenge to his 151 month sentence, Blake first
contends that the district court’s finding that he was responsible for
at least 3.5 kilograms of powder cocaine is unsupported by the evi-
dence presented at trial. Blake characterizes the district court’s find-
ing as a violation of his right to a jury trial under Apprendi v. New
Jersey, 530 U.S. 466 (2000), but the argument is frivolous; neither
Apprendi nor its progeny are implicated in this case. Blake was con-
victed of violating 21 U.S.C. § 846 by conspiring to distribute a con-
trolled substance, and the jury found, beyond a reasonable doubt, that
Blake conspired to distribute more than 500 grams but less than 5
kilograms of powder cocaine. J.A. 1262. The conviction and findings
authorized a sentence of not more than 40 years’ (480 months)
imprisonment, see 21 U.S.C. § 841(b)(1)(B), but the district court
sentenced Blake to 151 months — less than the 480 month maximum.
Nothing that influenced the district court’s decision to impose this
sentence can be deemed a fact that increased Blake’s sentence beyond
the statutory maximum. So long as the sentence imposed does not
exceed the maximum punishment authorized by the jury’s verdict,
Apprendi is inapplicable.
In sentencing Blake, the district court found that Blake was
accountable for at least 3.5 kilograms but less than 5 kilograms of
powder cocaine and assigned a base offense level of 30 pursuant to
U.S.S.G. § 2D1.1(c)(5). At trial, Blake was willing to admit that he
had involvement and knowledge of up to 850 grams of powder
cocaine, and uses that concession as the basis for his claim that the
district court’s attribution to him of an amount exceeding 850 grams
6 UNITED STATES v. DORSEY
was clearly erroneous. Blake’s testimony was not the only evidence
admitted at trial, however. Langley testified that Blake sold him two
kilograms of cocaine and that he bought cocaine directly from Blake
on several other occasions, J.A. 768-81, and plastic wrappers found
in Blake’s house were capable of holding at least 3 kilograms of
cocaine. The evidence at trial detailing the size and scope of this con-
spiracy further supports the district court’s finding of drug quantity.
We cannot conclude that the district court clearly erred.
IV.
Blake also argues that the district court erred by imposing an
obstruction of justice enhancement without "specifically identify-
[ing]" the supposedly perjurious statements made by Blake, contrary
to United States v. Akinkoye, 185 F.3d 192, 205 (4th Cir. 1999). In
imposing the obstruction enhancement, the district court explained
that Blake "basically attempted to convince the fact finders, the jury
in this case, that he just wasn’t part and parcel of this thing, that he
may have made a mistake on one incident, but he didn’t know any-
thing." The court concluded that this simply "wasn’t truthful testi-
mony." J.A. 1375. While the district court could have identified the
statements to which it referred more specifically, it is obvious to
which statements the court was referring when it made the obstruction
enhancement. See, e.g., J.A. 1109 ("Q: Did you know anything at all
about Steve Langley and Donald Campbell and what they would do
or not do with cocaine? A: No, sir. Q: Did you know anything at all
about any of the names that you’ve heard throughout this trial with
Mr. Langley and those others and what they might do or not do with
cocaine? A: No, sir.") (emphasis added). Accordingly, we find no
reversible error in the district court’s obstruction enhancement.
The appellants’ remaining arguments do not require discussion.
The judgment of the district court is affirmed.
AFFIRMED