United States v. Gadson ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4979
TIMOTHY GADSON, a/k/a Sweet Pea,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4983
DARRON OWENS, a/k/a Dee,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Orangeburg.
Cameron M. Currie, District Judge.
(CR-01-84)
Argued: June 6, 2003
Decided: July 21, 2003
Before WILKINS, Chief Judge, TRAXLER, Circuit Judge,
and Henry E. HUDSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Hudson wrote the opinion,
in which Chief Judge Wilkins and Judge Traxler joined.
2 UNITED STATES v. GADSON
COUNSEL
ARGUED: Richard Dwight Biggs, LAW OFFICE OF MARCIA G.
SHEIN, P.C., Decatur, Georgia, for Appellant Gadson; Cameron
Bruce Littlejohn, Jr., Columbia, South Carolina, for Appellant Owens.
Mark C. Moore, Assistant United States Attorney, Columbia, South
Carolina, for Appellee. ON BRIEF: Marcia G. Shein, LAW OFFICE
OF MARCIA G. SHEIN, P.C., Decatur, Georgia, for Appellant Gad-
son. J. Strom Thurmond, Jr., United States Attorney, Stacey D.
Haynes, Assistant United States Attorney, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
HUDSON, District Judge:
Following a trial by jury, Timothy Gadson ("Gadson") and Darron
Owens ("Owens") were convicted of conspiracy to possess with intent
to distribute and to distribute 50 grams or more of cocaine base and
five kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and 846. Owens was also
convicted of possessing a firearm after having been convicted of a
crime punishable by more than one year imprisonment, in violation
of 18 U.S.C. §§ 922(g) and 924(a). Gadson was sentenced to life
imprisonment. Owens was sentenced to concurrent terms of life and
ten years imprisonment. The appellants raise numerous issues attack-
ing their convictions and sentences. Finding no reversible error, we
affirm.
I.
The evidence at trial disclosed that Gadson and Owens were promi-
nent members of a drug distribution syndicate operating in Orange-
UNITED STATES v. GADSON 3
burg, South Carolina. The Government presented further evidence
that indicated that Gadson was the leader in the organizational hierar-
chy and that Owens was his direct subordinate. Organization insiders
testified that substantial quantities of powder cocaine were trans-
ported from Miami, Florida, Houston, Texas, and other source cities,
to Orangeburg for processing into cocaine base and ultimately for
street sales. Gadson employed a number of street level dealers who
marketed his product in the Orangeburg area. In order to provide legal
cover for their operation, Gadson and Owens operated a car wash,
which also served as a drug distribution point.
II.
Initially, appellants challenge the sufficiency of the evidence as to
the conspiracy count. This Court reviews de novo the district court’s
decision to deny a motion for judgment of acquittal. United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998). To determine whether
there was sufficient evidence, we consider whether the evidence,
viewed in the light most favorable to the Government, was sufficient
for a rational trier of fact to have found the essential elements of the
crime beyond a reasonable doubt. Id.; see United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996) (en banc).
In large part, the Government based its case on the testimony of
cooperating co-conspirators or other associates of the drug organiza-
tion. The appellants contend that because the evidence consisted prin-
cipally of unreliable, uncorroborated testimony of drug dealers, it was
insufficient to show their knowing participation in the charged con-
spiracy. We will not review witness creditability. E.g., Burgos, 94
F.3d at 863. Furthermore, the uncorroborated testimony of a witness
or accomplice may be sufficient to support a conviction. See United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). We therefore
reject this claim.
Pointing to what he perceives to be a material variance in the trial
testimony, Gadson claims the evidence, if believed, established the
existence of multiple, separate conspiracies, rather than one single
conspiracy. The Government bears the burden of proving the single
conspiracy charged in the indictment. United States v. Hines, 717
F.2d 1481, 1489 (4th Cir. 1983). If the evidence shows multiple con-
4 UNITED STATES v. GADSON
spiracies, reversal is only required if Gadson’s substantial rights have
been prejudiced. Id."A single conspiracy exists where there is ‘one overall agreement’
or ‘one general business venture.’" United States v. Leavis, 853 F.2d
215, 218 (4th Cir. 1988) (citations omitted). Critical to the analysis
is the overlap of key actors, as well as methods and goals of the con-
spiracy. See id.; United States v. Crockett, 813 F.2d 1310, 1316-17
(4th Cir. 1987). "If the conspiracy ‘had the same objective, it had the
same goal, the same nature, the same geographic spread, the same
results, and the same product,’ it can be a single conspiracy if it
involved multiple transactions." United States v. Haley, No. 02-4855,
slip op. at 7 (4th Cir. May 23, 2003) (quoting Crockett, 813 F.2d at
1317)). We find the evidence presented at trial sufficient to allow the
jury to have found that the appellants participated in a single conspir-
acy.
III.
The appellants next challenge the district court’s determination that
evidence of a confidential informant’s murder was admissible at trial.
The Government’s evidence revealed that Gadson ordered Owens to
kill Maurice Lott ("Lott") after Lott provided information to law
enforcement that led to the seizure of a drug shipment. The district
court found evidence of Lott’s murder was admissible because it was
an overt act in furtherance of the drug conspiracy undertaken in retri-
bution for Lott’s cooperation with the authorities. Decisions regarding
the admission of evidence are reviewed for abuse of discretion. See
United States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996) (en
banc).
In arguing that evidence of Lott’s murder should have been
excluded, Gadson relies principally on Federal Rules of Evidence 401
and 403. Gadson argues that the evidence was not relevant to any fact
of consequence in the trial and that it was more prejudicial than pro-
bative. When testimony is admitted as to acts intrinsic to the charged
offense, and not admitted only to demonstrate bad character, it is ordi-
narily admissible. United States v. Chin, 83 F.3d 83, 88 (4th Cir.
1996).
UNITED STATES v. GADSON 5
The evidence revealed that the murder of Lott was an integral part
of the conspiracy, committed to facilitate its operation and prevent its
disruption by law enforcement. We find the evidence of Lott’s murder
was properly admitted as an intrinsic act, inextricably intertwined
with proof of the conspiracy itself. Furthermore, we find that its pro-
bative value was not substantially outweighed by its prejudice. See
United States v. Lipford, 203 F.3d 259, 268-69 (4th Cir. 2000). Fur-
ther, we reject Gadson’s contention that the district court abused its
discretion by denying his motion for severance because of the preju-
dice stemming from the evidence of the murder. See United States v.
Tipton, 90 F.3d 861, 892-93 (4th Cir. 1994).
IV.
The appellants raise a number of additional issues concerning the
district court’s application of the Sentencing Guidelines. We review
their arguments in turn.
A.
Appellants contest the district court’s four level enhancement of
their sentences for their role in the offense under United States Sen-
tencing Commission, Guidelines Manual, § 3B1.1 (Nov. 2002)
("U.S.S.G."). Both of the appellants received a four level enhance-
ment, which is appropriate when a defendant is an organizer or leader
of a criminal activity involving five or more participants. U.S.S.G.
§ 3B1.1(a). A district court’s determination of the defendant’s role in
the offense is reviewed for clear error. United States v. Withers, 100
F.3d 1142, 1147 (4th Cir. 1996). Both Appellants’ arguments distill
to a challenge of the creditability of the witnesses.
1.
Despite overwhelming evidence to the contrary, Gadson argues
that there was insufficient evidence that he directed or supervised any
member of the conspiracy or was the organizer or leader of the
alleged operation. The evidence adduced by the Government clearly
demonstrated that Gadson organized the shipments of cocaine into
Orangeburg, South Carolina from other source cities, oversaw its con-
6 UNITED STATES v. GADSON
version into cocaine base for street sales, prepared it for distribution,
and directed the marketing activities of others. The evidence was
more than sufficient to justify the four level enhancement. See United
States v. Bartley, 230 F.3d 667, 673 (4th Cir. 2000). It also appeared
that Maurice Lott was murdered by Owens at the behest of Gadson.
2.
The assessment of the four point enhancement to Owens’ sentence
is a closer issue. Owens was described as Gadson’s second in com-
mand. The organization that Gadson headed had multiple layers of
participants. Anthony Teagle ("Teagle") testified that he worked for
Owens and Gadson at the car wash, sold crack cocaine when asked
to do so, and held guns for Owens. Owens argues that the evidence
taken in the light most favorable to the Government shows only that
Owens was a street dealer who sold small quantities to users and other
dealers. We disagree and find that the trial court’s determination of
Owens’ role in the offense was not clearly erroneous.
It is important to note that even if Owens did not merit an enhance-
ment for his role in the offense, his offense level without the enhance-
ment nevertheless exceeded the maximum level of forty-three (43),
which corresponds to a life sentence. Accordingly, any conceivable
error in this respect was harmless. See 18 U.S.C. § 3742(f)(1)(2000);
United States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992). Conse-
quently, we reject this claim.
B.
Gadson next challenges the district court’s application of the mur-
der cross-reference. Under U.S.S.G. § 2D1.1(d)(1): "If a victim was
killed under circumstances that would constitute murder under 18
U.S.C. § 1111 had such killing taken place within the territorial or
maritime jurisdiction of the United States, apply § 2A1.1 (First
Degree Murder)." A district court’s findings of fact supporting this
enhancement are reviewed for clear error. See United States v.
Crump, 120 F.3d 462, 468 (4th Cir. 1997). If the district court’s find-
ings of fact "may rationally be said to be supported by a preponder-
ance of the evidence, they may not be disturbed on appeal." Id.UNITED STATES v. GADSON 7
The district court, which had the benefit of presiding over two
hearings concerning evidence of Lott’s murder as well as the eight
day trial, heard all the evidence and concluded that Gadson ordered
Owens to murder Lott. Witnesses testified to comments made to Gad-
son, or in his presence, which supported the court’s finding of Gad-
son’s complicity in Lott’s murder. Moreover, the district court’s
specific finding that Gadson ordered the murder was sufficient to
show premeditation. We therefore find that the district court properly
applied the murder cross-reference and that the district court’s finding
that Gadson ordered the murder of Lott was not clearly erroneous.
C.
The appellants next argue that the imposition of an obstruction of
justice enhancement for killing a confidential informant (Lott) consti-
tuted impermissible double counting because the district court also
applied the murder cross-reference under U.S.S.G. § 2D1.1(d)(1) for
the killing of Lott. Double counting is permissible when not expressly
prohibited under the Guidelines. United States v. Crawford, 18 F.3d
1173, 1179 (4th Cir. 1994). Neither U.S.S.G. § 2D1.1(d) nor U.S.S.G.
§ 3C1.1 expressly prohibits double counting under the circumstances
of this case. Consequently, we find no error in the district court’s
assessment of the enhancement.
D.
Gadson finds fault with the trial court’s computation of the amount
of drugs attributed to him. He argues that the quantity gives rise to
a base offense level of no higher than thirty-six (36). Although Gad-
son’s offense level was based upon the murder cross-reference, he
was assigned a base offense level of thirty-eight (38) under U.S.S.G.
§ 2D1.1 based on drug quantity. A court’s determination of drug
quantity is reviewed for clear error. United States v. Lopez, 219 F.3d
343, 348 (4th Cir. 2000). The trial court maintained meticulous notes
during the testimony as to the quantities of the controlled substances
mentioned and attributed to each of the defendants. We have
reviewed the testimony and find the witnesses testified to amounts of
crack cocaine far exceeding that needed for a base level of thirty-eight
(38). Consequently, the district court did not clearly err.
8 UNITED STATES v. GADSON
E.
Gadson also challenges the district court’s finding that he qualifies
for career offender status under U.S.S.G. § 4B1.1. Gadson did not
raise this issue at sentencing before the trial court. Therefore, we
review for plain error. See United States v. Cannady, 283 F.3d 641,
647 n.5 (4th Cir. 2002). To find plain error 1) there must be an error;
2) the error must be plain; and 3) the error must affect substantial
rights. United States v. Olano, 507 U.S. 725, 732-37 (1993). If these
three elements are met, the Court may exercise its discretion to notice
the error only if the error "seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings." Id. at 732 (citation omit-
ted).
Gadson’s base offense level, irrespective of the career offender
provision, was forty-three (43). A level forty-three (43) correlates to
a life sentence regardless of a defendant’s criminal history category.
Therefore, even if Gadson was improperly sentenced as a career
offender, we conclude his substantial rights were not affected.
F.
Lastly, Gadson filed a motion for leave to file a pro se supplemen-
tal brief regarding his claim that counsel provided ineffective assis-
tance due to a conflict of interest. Claims of ineffective assistance of
counsel are generally not considered on direct appeal unless the
record conclusively shows that counsel was ineffective. See United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). This is not such a
case. To allow for adequate development of the record, this claim
should be brought in a 28 U.S.C. § 2255 motion. See id.; United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). We therefore deny
Gadson’s motion for leave to file a pro se brief.
V.
For the foregoing reasons, we affirm Gadson’s and Owens’ convic-
tions and sentences.
AFFIRMED