United States v. Travis ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4001
ANDRE D. TRAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-95-75)
Submitted: March 11, 1997
Decided: March 26, 1997
Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Wayne D. Inge, Roanoke, Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, Miller A. Bushong, III, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Andre Travis was convicted of conspiracy to distribute crack
cocaine, aiding and abetting the distribution of crack, and three counts
of distributing crack. Travis appeals his convictions as well as his
136-month sentence. We affirm.
I
In late 1993, the West Virginia State Police began investigating a
crack ring that operated out of Calhoun's Grocery in Fayette County.
Calhoun's Grocery was Travis' main distribution point. Customers,
including cooperating witnesses Sherry Gray and Thomas Garrett,
often went to Calhoun's to purchase crack from Travis.
On November 23, 1993, Gray met Travis at Calhoun's. Travis was
driving a Cadillac and was accompanied by a passenger, Holly
Woods. After Gray asked about buying $100 worth of crack, Travis
and Woods showed her drugs. Gray bought the crack from Woods
after Travis suggested she "get it from my boy." An audio tape of the
transaction was played at trial.
On December 1, 1993, Gray approached Travis at another grocery
store and purchased $100 worth of crack from him. On March 29,
1994, an undercover park ranger drove Gray to Calhoun's. The ranger
waited in the car and observed Gray enter the store, then leave with
Travis. Gray and Travis went to the side of the store, where Gray
again bought $100 worth of crack from Travis. An audio tape of this
transaction was introduced at trial.
On November 29, 1994, Travis sold crack to Garrett, who was
working for the police making controlled buys from various drug
dealers at Calhoun's. Travis asked Garrett if he could sell him crack.
Garrett told Travis that he had promised to buy from someone else,
but would return later to buy from Travis. Garrett told officers about
the conversation. The police gave Garrett money and sent him back
to the store to buy from Travis. Travis approached Garrett's car and
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sold him $50 worth of crack. An audio tape of the transaction was
introduced into evidence.
At trial, Gray and Garrett testified, as did indicted coconspirators
Edward Grasty and Clarence Wright, who served as runners, or mid-
dlemen, between Travis and his customers. They performed this func-
tion in exchange for alcohol and cigarettes. Several law enforcement
officers also testified. Travis testified in his own defense at trial, pro-
fessing his innocence and denying that the voice on the tapes was his.
II
Travis first contends that the prosecutor improperly vouched for
Gray and Garrett during closing argument. A prosecutor may not indi-
cate a personal belief in the credibility of a witness. See United States
v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). Here, however, the
prosecutor did not vouch for Gray's and Garrett's credibility. Instead,
he simply responded to Travis' attack on their credibility when he
argued that it would make no sense for either Gray or Garrett to lie.
Such argument is permissible. See United States v. Brainard, 690
F.2d 1117, 1122 (4th Cir. 1982). Further, given the overwhelming
evidence against Travis, and the court's immediate instruction that
argument was not evidence, the remarks could not reasonably be said
to have prejudiced Travis's right to a fair trial. See United States v.
Adam, 70 F.3d 776, 780 (4th Cir. 1996).
III
During cross-examination, the prosecutor inquired whether Travis
had possessed crack. Travis replied that he had not. The prosecutor
then asked Travis to explain his 1994 guilty plea to possession of
crack. Travis replied that he was tricked into the plea. The district
court overruled Travis' objection to further questioning about the
details of the prior conviction. The prosecutor briefly elicited Travis'
testimony that the previous misdemeanor conviction involved two
sales of crack at Calhoun's Grocery. On appeal, Travis concedes that
asking about the conviction was proper but insists that further inquiry
about that conviction violated Fed. R. Evid. 403 and 404.
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A district court may admit evidence of other crimes for the purpose
of proving "motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident," but not "to prove the
character of a person in order to show action in conformity there-
with." Fed. R. Evid. 404(b). To be admissible under Rule 404(b),
prior bad acts must be relevant to an issue other than character, neces-
sary, and reliable. United States v. Aramony, 88 F.3d 1369, 1377-78
(4th Cir. 1996). Evidence that is admissible under Rule 404(b) must
be excluded under Fed. R. Evid. 403 if its probative value signifi-
cantly outweighs its prejudicial value. Id. at 1378.
Evidence of Travis' recent conviction for distributing crack at Cal-
houn's was admissible. The evidence tends to show intent, plan,
scheme, or design. See United States v. Ramey , 791 F.2d 317, 323
(4th Cir. 1986). It was necessary in that it furnished part of the con-
text of the crime and, as it was evidence of a conviction in a court of
law, it was reliable. See United States v. Aramony, 88 F.3d at 1377-
78. And, given the overwhelming case against Travis, the evidence
was not unduly prejudicial.
IV
Travis contends that the evidence was insufficient to support his
conspiracy conviction. We will uphold the jury's verdict if there was
substantial evidence to support it. Glasser v. United States, 315 U.S.
60, 80 (1942). In making this determination, we view the circumstan-
tial and direct evidence in the light most favorable to the Government
to decide whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. United
States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995).
To prove a 21 U.S.C. § 846 (1994) conspiracy, the prosecution
"must establish that: (1) an agreement to possess[the drugs] with
intent to distribute existed between two or more persons; (2) the
defendant knew of the conspiracy; and (3) the defendant knowingly
and voluntarily became a part of the conspiracy." United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (in banc), cert. denied, 1997
WL 73839 (U.S. Feb. 24, 1997) (No. 96-6868). Every conspirator
need not know the details of the conspiracy's structure and organiza-
tion or the identities of every conspirator. Id. at 858. "[A] loosely-knit
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association of members linked only by their mutual interest in sustain-
ing the overall enterprise of catering to the ultimate demands of a par-
ticular consumption market" may be sufficient to establish the
existence of a conspiracy. United States v. Banks, 10 F.3d 1044, 1045
(4th Cir. 1993).
There was ample evidence on which to convict Travis of conspir-
acy to distribute crack. He plainly headed a drug ring which operated
primarily out of Calhoun's Grocery. He employed at least two run-
ners, Grasty and Wright, who were paid for their services with alco-
hol and cigarettes. Additionally, he referred to Holly Woods as "my
boy," when directing Gray to purchase drugs from him. The clear
inference is that Woods was part of Travis' organization.
V
The district court found that at least thirty-five, but fewer than fifty,
grams of crack were attributable to Travis as relevant conduct, with
a resulting base offense level of 30. United States Sentencing Com-
mission, Guidelines Manual, § 2D1.1(c)(5) (Nov. 1995). Travis does
not dispute 23.45 grams included in the calculation. However, he does
dispute twenty grams of crack attributed to him on the basis of Gar-
rett's testimony.
For sentencing purposes, drug quantities attributable to persons
convicted of conspiracy to distribute illegal drugs are determined by
examining "the quantity of narcotics reasonably foreseeable to each
conspirator within the scope of his agreement." United States v. Irvin,
2 F.3d 72, 78 (4th Cir. 1993); see also U.S.S.G. § 1B1.3(a)(1)(B). The
United States bears the burden of establishing by a preponderance of
the evidence the quantity of drugs attributable to a defendant. United
States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990). Determinations
regarding reasonable foreseeability and quantity of drugs are
reviewed for clear error. United States v. Banks , 10 F.3d at 1057.
At Travis' sentencing hearing, Garrett testified that he spent
between $5000 and $7000 on crack he purchased from Travis. Gener-
ally, $50 bought .20 grams of crack. Travis argues that Garrett was
uncertain as to how much he spent. However, the transcript plainly
shows that Garrett was definite as to the minimum amount he spent.
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The district court calculated that Garrett had made 100 $50 purchases,
buying .20 grams each time, for a total of twenty grams. The court's
finding was not clearly erroneous.
VI
We therefore affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before us and argument would not
aid the decisional process.
AFFIRMED
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