United States v. Sneed , 54 F. App'x 375 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4880
LEONARD D. SNEED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-99-687-3)
Submitted: November 27, 2002
Decided: December 23, 2002
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Kevin Holmes, THE STEINBERG LAW FIRM, L.L.P., Charles-
ton, South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Robert H. Bickerton, Assistant United States Attor-
ney, Charleston, South Carolina, for Appellee.
2 UNITED STATES v. SNEED
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Leonard D. Sneed was convicted on one
count of conspiracy to possess with intent to distribute and to distrib-
ute fifty grams or more of cocaine base ("crack"), in violation of 21
U.S.C. § 846 (2000) (Count 1), and four counts of distribution of less
than five grams of crack on four occasions in August and September
1998, in violation of 21 U.S.C. § 841(a)(1) and (b)(1) (2000), and 18
U.S.C. § 2 (2000) (Counts 5 through 8). The district court sentenced
Sneed to life in prison on Count 1 and imposed concurrent thirty-year
prison terms on Counts 5 through 8. His attorney has filed a brief pur-
suant to Anders v. California, 386 U.S. 738 (1967), stating that in his
opinion there are no meritorious issues for appeal but asserting
numerous issues that were raised at trial or at sentencing or that Sneed
asked him to raise on appeal. Sneed was advised on his right to file
a pro se supplemental brief but declined to do so. For the reasons that
follow, we affirm.
Sneed first contends that the indictment was defective for numer-
ous reasons. His claim that the grand jury foreperson and the govern-
ment attorney failed to sign the indictment is unsupported by the
record. Contrary to Sneed’s next claim, his indictment does not impli-
cate the concerns raised in Apprendi v. New Jersey, 530 U.S. 466(2000). The fifty grams or more drug quantity upon which he was
convicted was charged in the indictment, submitted to the jury with
proper instructions, and proven beyond a reasonable doubt. Sneed
also argues that the indictment was defective because Counts 5
through 8 charged violations of 18 U.S.C. § 2, but none of the counts
contain language alleging that Sneed aided and abetted distribution of
crack. This claim fails because aiding and abetting is implied by an
indictment for any crime and need not be separately specified. United
States v. Duke, 409 F.2d 669, 671 (4th Cir. 1969). In any event, the
evidence presented at trial established that Sneed was a principal in
these offenses rather than an aider and abettor.
UNITED STATES v. SNEED 3
Next, Sneed asserts that the government violated the Federal Rules
of Criminal Procedure and the Jencks Act by failing to produce the
grand jury transcripts. Grand jury testimony may be disclosed to a
defendant "upon a showing that grounds may exist for a motion to
dismiss the indictment because of matters occurring before the grand
jury." Fed. R. Crim. P. 6(e)(3)(C)(ii). Sneed made no such showing
in this case. To the extent that Sneed alleges a Jencks Act violation
because the government did not produce the grand jury testimony of
government witnesses who testified at trial, his claim fails because he
did not move for the production of such statements. See 18 U.S.C.
§ 3500(b) (2000) (where defendant so moves, court shall order gov-
ernment to produce relevant portion of grand jury testimony of gov-
ernment witness).
Sneed argues that he should not have received an enhanced sen-
tence on Count 1 for his prior felony convictions because he did not
receive pretrial notice pursuant to 21 U.S.C. § 851 (2000). This con-
tention is not supported by the record. He also argues that the govern-
ment failed to offer any evidence that the contraband in question was
crack. However, the parties stipulated that the substance Sneed sold
to Wanda Holmes, an informant, during four controlled buys was
crack. Furthermore, the witnesses who testified at trial concerning
drug dealings with Sneed testified that they either distributed crack to
or received crack from Sneed.
The government videotaped the four controlled buys that were the
subject of Counts 5 through 8 of the indictment. Sneed challenges the
admissibility of these recordings. As an informant for the govern-
ment, Holmes was acting under color of law when she cooperated in
the recording of her drug transactions with Sneed. We therefore find
that the evidentiary use of the videotapes was permissible. 28 U.S.C.
§ 2511(2)(c) (2000); United States v. Andreas, 216 F.3d 645, 660 (7th
Cir.), cert. denied, 531 U.S. 1014 (2000); Obron Atlantic Corp. v.
Barr, 990 F.2d 861, 863-65 (6th Cir. 1993); United States v. Hai-
mowitz, 725 F.2d 1561, 1582 (11th Cir. 1984); United States v. Tou-
sant, 619 F.2d 810, 813 (9th Cir. 1980).
Sneed contends that the district court erred in denying his motion
for judgment of acquittal on Count 1, made pursuant to Fed. R. Crim.
P. 29, on the grounds that the evidence was insufficient to support his
4 UNITED STATES v. SNEED
conspiracy conviction. To convict Sneed on the drug conspiracy
count, the government had to prove the existence of an agreement
between Sneed and others to possess with intent to distribute and to
distribute crack, that Sneed knew about the conspiracy, and that he
knowingly and voluntarily joined the conspiracy. United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). A single conspir-
acy exists when it has "the same objective, . . . the same goal, the
same nature, the same geographic spread, the same results, and the
same product." United States v. Capers, 61 F.3d 1100, 1107 (4th Cir.
1995) (internal quotation marks omitted). Further, a single conspiracy
may be found even where there is "a loosely-knit association of mem-
bers linked only by their mutual interest in sustaining the overall
enterprise." Id. (internal quotation marks omitted).
Evidence presented at trial established that Sneed was engaged in
crack distribution within a section of Beaufort County, South Caro-
lina. Sneed was involved with several other individuals who supplied
and obtained crack from each other. This ongoing drug distribution
occurred from 1992 to 1998. Viewing this evidence in the light most
favorable to the government, we find that the evidence was sufficient
to support Sneed’s conspiracy conviction. Glasser v. United States,
315 U.S. 60, 80 (1942).
Sneed contends that the district court erred by instructing the jury
on the lesser included offenses within Count 1. We find that the dis-
trict court did not abuse its discretion in giving the instruction and, in
any event, Sneed suffered no prejudice from this instruction.
Under 21 U.S.C.A. § 841(b)(1)(A), Sneed received a mandatory
life sentence on Count 1 of the indictment based on three prior crack
distribution convictions in South Carolina. Sneed claims that the
§ 851 notice was inadequate because it failed to specify that 21
U.S.C.A. § 841(b)(1)(A) was the provision upon which the govern-
ment was relying for enhancement. However, § 851 only requires that
the information notify the defendant about the particular prior convic-
tions that may be used to enhance his sentence—not the statutory pro-
visions permitting such enhancements. See United States v. Campbell,
980 F.2d 245, 252 (4th Cir. 1992) ("nowhere in section 851 is the
United States Attorney required to specify what subsection he is rely-
ing on for enhancement"). Furthermore, although he was sentenced on
UNITED STATES v. SNEED 5
the same day for the three state crack distribution convictions, Sneed
committed each crime on a separate date and, notwithstanding
Sneed’s claims to the contrary, there is no evidence that these convic-
tions were formally consolidated. We find that the district court prop-
erly treated them as separate offenses for enhancement purposes.
United States v. Ford, 88 F.3d 1350, 1365-66 (4th Cir. 1996); cf.
United States v. Allen, 50 F.3d 294, 297 (4th Cir. 1995).
Finally, Sneed alleges ineffective assistance of trial counsel. We
find that Sneed’s claims of ineffective assistance are not cognizable
on direct appeal because the record does not conclusively show that
he was denied effective assistance of counsel. United States v. King,
119 F.3d 290, 295 (4th Cir. 1997).
For these reasons, we affirm Sneed’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED