United States v. Scearcy ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5920
MICHAEL SCEARCY, a/k/a Michael
Searcy,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-298-P)
Submitted: February 28, 1997
Decided: March 18, 1997
Before HALL, ERVIN, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Claire J. Rauscher, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Kenneth D. Bell, First Assistant
United States Attorney, B. Frederic Williams, Jr., Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Michael Scearcy appeals from his jury conviction for conspiring to
possess with the intent to distribute cocaine, heroin, and cocaine base,
in violation of 21 U.S.C. § 846, and possessing with the intent to dis-
tribute cocaine, heroin, and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). The district court sentenced him to 300 months incarcera-
tion and five years of supervised release.
Scearcy met Norman Williams in late 1991; they subsequently
started a partnership in the drug business. They conducted their drug
business primarily from an apartment leased in Williams' name. They
had several suppliers, including Kamal Osman. On June 5, 1992,
Kamal provided Scearcy and Williams a car for use in their drug busi-
ness. While driving the car on that day, Scearcy led the police on a
car chase during which he threw drugs out of the window of the car.
The police subsequently arrested him and drugs were recovered from
the car and from where Scearcy had thrown drugs during the chase.
Williams bonded Scearcy out of jail. Scearcy and Williams were sub-
sequently arrested on June 8, 1992. A search of their apartment pro-
duced drugs, including cocaine, heroin, and cocaine base, and other
items usually related to a drug business.
Scearcy and Williams were charged in the same indictment which
stated in pertinent part that "[o]n or about June 8, 1992" Williams and
Scearcy conspired and agreed with one another to possess with intent
to distribute cocaine, heroin, and cocaine base. On appeal, Scearcy
claims that the district court erred by: (1) admitting evidence of con-
duct that occurred prior to the date of the charged conspiracy; (2)
instructing the jury that they could consider conduct that occurred
prior to the date of the charged conspiracy; (3) determining the
amount of drugs attributable to him based on Williams' testimony;
and (4) enhancing his sentence by two points for reckless endanger-
ment.
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Specifically regarding his first claim, Scearcy complains that the
court allowed Osman to testify that he fronted drugs to Scearcy and
Williams on numerous occasions prior to June 8. Scearcy also chal-
lenges the admissibility of the June 5 police car chase and subsequent
search of the automobile. Scearcy claims that this evidence consti-
tuted evidence of "other crimes, wrongs, or acts" within the meaning
of Fed. R. Evid. 404(b).
All evidence falling outside the charged conspiracy period, how-
ever, does not necessarily involve a separate, unrelated offense sub-
ject to the strictures of Rule 404(b). See United States v. Kennedy, 32
F.3d 876, 885 (4th Cir. 1994). "[E]vidence of uncharged conduct is
not considered ``other crimes' evidence if it``arose out of the same . . .
series of transactions as the charged offense, . . . or if it is necessary
to complete the story of the crime (on) trial.'" Id. (quoting United
States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989)).
Here, the challenged evidence constituted predicate evidence nec-
essary to provide context to the Scearcy-Williams drug partnership
that took place within the charged time frame. Id. at 885-86. Osman's
testimony showed that he fronted drugs to Scearcy and Williams
together on numerous occasions, and thus, the drugs found in the
apartment on June 8 belonged to both Scearcy and Williams. Simi-
larly, evidence of the car chase and subsequent search of the automo-
bile proved the existence of a drug partnership between Scearcy and
Williams prior to and on June 8. By providing the jury with back-
ground information about Scearcy's activities during the preparatory
stages of the conspiracy, the evidence served to complete the story of
the crime on trial. Id. at 856. Therefore, the district court did not
abuse its discretion in admitting the challenged evidence.
Next, Scearcy challenges the court's instruction that if a defendant
"joins an unlawful scheme on one occasion, that is sufficient to con-
vict him in a conspiracy even though he had not participated in an
early or later stages in the scheme. . . ." Scearcy alleges that this
instruction allowed the jury to consider evidence of conduct that
occurred prior to the time of the charged conspiracy. However, the
court also instructed the jury that Scearcy was not on trial for any act
or conduct or offense not alleged in the indictment. Further, as dis-
cussed above, it was proper for the jury to consider conduct that
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occurred outside the charged conspiracy. Id. at 885-86. Thus, the
instruction taken as a whole was proper. See United States v. Heater,
63 F.3d 311, 326 (4th Cir. 1995), cert. denied , 64 U.S.L.W. 3485(U.S. Jan. 16, 1996) (No. 95-7090).
Scearcy also claims that the court's determination of the amount of
drugs attributable to him and his base offense level under USSG
§ 2D1.1* was not supported by a preponderance of the evidence. The
court found that Scearcy was responsible for ten kilograms of
cocaine, four ounces of heroin, and 7.4 grams of cocaine base. The
court's determination was based on Williams' testimony that he and
Scearcy moved between ten and twelve kilograms of cocaine and four
ounces of heroin during their partnership. Also, the Government
seized 7.4 grams of cocaine base on June 8 from the apartment shared
by Scearcy and Williams. Although Scearcy disputes the veracity of
Williams' testimony because he testified pursuant to his plea agree-
ment, this court does not review a trier of fact's assessment of credi-
bility of witnesses. See United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989). We hold that the court's determination of Scearcy's
base offense level was not clearly erroneous. See United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir.), cert. denied, 65 U.S.L.W. 3260(U.S. Oct. 7, 1996) (No. 95-9447).
Lastly, Scearcy claims the district court erred by enhancing his
offense level by two points pursuant to USSG § 3C1.2 for reckless
endangerment during flight from law enforcement. The enhancement
was based on the June 5 police car chase. Scearcy contends that there
was no nexus between the crime of conviction and the reckless endan-
germent because the car chase occurred three days before the charged
conduct. However, the enhancement under USSG § 3C1.2 is applica-
ble where the act occurred during the preparation for the offense of
conviction or in the course of attempting to avoid detection or respon-
sibility for that offense. USSG § 1B1.3(a)(1). The evidence showed
that on June 5 Scearcy was driving in a drug infested area with drugs
in his automobile. He was clearly attempting to flee from law enforce-
ment so that he could continue his drug conspiracy, which culminated
on June 8. We hold that the police chase was relevant conduct in
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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applying the USSG § 3C1.2 reckless endangerment enhancement.
USSG § 1B1.3(a)(1).
Accordingly, we affirm Scearcy'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
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