United States v. Ward ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4365
DESMOND WARD, a/k/a David A.
King,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-29-MU)
Submitted: March 23, 1999
Decided: April 6, 1999
Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Paul Morris, LAW OFFICES OF PAUL MORRIS, P.A., Coral
Gables, Florida, for Appellant. Mark T. Calloway, United States
Attorney, Frank D. Whitney, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Desmond Ward appeals his convictions for one count of
conspiracy to possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 841(a)(1), 846 (1994), and using a communication facil-
ity to facilitate the crime, in violation of 21 U.S.C. § 843(b) (1994).
On appeal, Ward argues that insufficient evidence existed to support
his convictions and that the trial court issued an erroneous supplemen-
tal jury instruction. Finding no error, we affirm.
The evidence at trial showed that on January 26, 1997, Ward
shipped two separate packages of crack cocaine from the Miami area
via Federal Express to Charlotte, North Carolina. One package was
picked up by a contract courier service (AGS Courier Network) from
Ward at his residence. Ward used the alias of "David King" as the
sender of the package. Ward personally delivered the second package
later in the day to a Federal Express office in North Miami, approxi-
mately ten miles away from his home. Ward used the alias "Dale
Riche" as the sender of the second package.
Ward alleges that there was insufficient evidence of an agreement
to conspire to support his conviction because there was no evidence
that he engaged in an agreement to possess with the intent to distrib-
ute drugs. This court must uphold a jury verdict if, viewing the evi-
dence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Glasser v. United States , 315 U.S. 60, 80
(1942); United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992). The
government enjoys the benefit of all reasonable inferences from the
facts proved to facts sought to be established. See United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
To establish a defendant's participation in an illegal drug conspir-
acy, the government must show an agreement between two or more
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persons to undertake conduct that would violate the laws of the
United States relating to controlled substances and the defendant's
willful joinder in that agreement. See United States v. Burgos, 94 F.3d
849, 857 (4th Cir. 1996). The government may use circumstantial evi-
dence to demonstrate a defendant's participation in a conspiracy and
his knowledge of the conspiracy's objectives. See Glasser, 315 U.S.
at 80; Burgos, 94 F.3d at 857-58.
Ward addressed the "David King" package to Terry Crawford, 113
Walnut Avenue in Charlotte, North Carolina. Ward addressed the
"Dale Riche" package to Elliott Johnson at the same Charlotte
address. At trial, the Government introduced evidence connecting
Ward to drug traffickers in Charlotte. On the day that Ward shipped
the two packages, there were two phone calls between Ward's resi-
dence and the cellular phone of Michelle Darby in Charlotte. Darby
testified that the phone was used exclusively by Roscoe McCaskill,
the father of her son. McCaskill asked her to subscribe to the service
and told her that he would reimburse her for it. The DEA caught
Terry Lee Crawford in a controlled delivery of one of the packages.
Crawford entered a guilty plea and cooperated with law enforcement
regarding the conspiracy. At trial, Crawford testified that McCaskill
was a long term acquaintance of his who provided him with rock
cocaine for his personal use. McCaskill agreed to pay Crawford $500
to receive a Federal Express package in the name of"Elliott Johnson."
Crawford testified that while McCaskill never told him that drugs
would be in the package, he knew that the contents were illegal and
that the contents were likely drugs, although he was unaware of the
amount.
Crawford also testified that he knew one of McCaskill's associates,
Christopher Keith Simmons. Crawford knew Simmons only as Keith
from Miami. According to United States Probation Office and hotel
business records, Keith Simmons was staying at the Southpark Suites
Hotel in Charlotte on January 22-24, a few days before the Federal
Express shipments. When an unidentified person arranged for the
same day Federal Express service pickup of the "David King" pack-
age, the phone contact in Charlotte that was given was the phone
number for Simmons' hotel room, and not the phone number for 113
Walnut Avenue, the address on the package. We find that this evi-
dence is sufficient to find an agreement to conspire.
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Ward next alleges that the Government did not prove he knew that
either of the two boxes contained cocaine. The Government produced
the shipping documents and used expert handwriting analysis and the
testimony of both persons receiving the Federal Express packages
prior to shipment. The handwriting expert testified that Ward pre-
pared the set of shipping documents for the same day"David King"
package. The courier testified that Ward signed a document stating
that the contents were visually inspected and matched the shipping
documents. The Federal Express employee testified that Ward pre-
pared the shipping label for the "Dale Riche" package in her presence.
Ward's deceit surrounding the shipping of both packages such as
the use of aliases for both packages, using the address of elderly
neighbors as the shipper's address on one of the packages, and ship-
ping two packages to the same address on the same day is strong cir-
cumstantial evidence that he had knowledge of the content of the
packages. Also, the phone record linking calls from Ward's residence
to the cellular phone of a drug trafficker on the day the packages were
mailed, and using the phone number of a hotel where another drug
dealer was staying for the phone number at the receiving address is
circumstantial evidence that Ward knew that the packages contained
cocaine. We therefore find that sufficient evidence existed to sustain
the convictions.
Ward also attempts to argue that even if the evidence is sufficient
to sustain the convictions, the weight of the evidence dictates that the
case be remanded for a new trial. See Tibbs v. Florida, 457 U.S. 31(1982). Ward argues that he preserved the issues he raises as to the
weight of the evidence by unsuccessfully moving for a new trial on
the same grounds. However, he frames these arguments as a challenge
to the sufficiency of the evidence and does not assign error to the
denial of the motion for a new trial.
Ward raises other pure sufficiency arguments particularly relating
to his knowledge that the packages contained cocaine. Ward also
alleges that the Federal Express clerk's identification of Ward was
suspect, the prosecutor improperly vouched for a witness, and his
counsel did not effectively represent him. Ward's trial counsel did not
object to the identification or the alleged vouching for a witness.
Ward's use of these issues framed as weight of the evidence issues
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is an attempt to raise ineffective assistance of counsel issues. We
decline to review the ineffective assistance of counsel issues Ward
raises on direct appeal because it does not appear conclusively from
the record that counsel did not provide effective assistance. See
United States v. Fischer, 477 F.2d 300, 302 (4th Cir. 1973).
The remaining issues raised by Ward regarding the weight of the
evidence involve credibility choices of the jury. See Tibbs, 457 U.S.
at 37-38 (holding that reversal based upon weight of the evidence is
a credibility determination). We do not weigh the evidence or review
the credibility of witnesses when reviewing the sufficiency of the evi-
dence. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
We therefore decline to remand for a new trial.
Finally, Ward assigns error to the district court's response to a jury
question. In examining a district court's response to a request for clar-
ification from the jury, the issue is whether the court responded to the
jury's inquiry "fairly and accurately without creating prejudice."
United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995) (citing
United States v. United Med. & Surgical Supply Corp. , 989 F.2d
1390, 1407 (4th Cir. 1993)). The decision to give a supplemental
instruction and the specific words chosen are left to the discretion of
the district court. See id. (citing United States v. Horton, 921 F.2d
540, 546 (4th Cir. 1990)). Applying these standards, we consider the
supplemental instruction given by the district court.
During jury deliberations, the jury sent questions regarding the
Government's exhibit 3, the "Network Courier Services Shipper's
Security Notification." The jury asked whether the Defendant's signa-
ture constituted an admission of guilty knowledge of the contents of
the same day delivery box. The defense suggested two alternative
responses: that the jurors rely upon their recollection, or a reading of
the entire testimony of the courier handling the package pick up. The
Government agreed and discouraged the reading of only a selection
of the courier's testimony. The district court instructed the jury that
it is a fact determination for the jury, and that in making the determi-
nation, they must examine all of the evidence. The district court went
on to state, "I'm going to relate what my recollection of the evidence
was. You are to take your recollection, not mine, if yours (sic) differs
from mine, you take yours (sic) . . . ." (J.A. 452). The district court
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related that its recollection of the courier's testimony was that the
courier arrived at Ward's residence, handed him the paperwork to fill
out, waited for Ward to complete it, did not require the production of
a driver's license, and left with the paperwork and package.
We find that the district court did not abuse its discretion in issuing
the supplemental instruction. The district court responded to the jury's
inquiry "fairly and accurately without creating prejudice." See Smith,
62 F.3d at 646. Ward argues that he was prejudiced by the instruction
because the court "unduly emphasized that portion of the courier's
testimony most supportive of the government's argument while omit-
ting the courier's testimony that supported the defense." We disagree.
The district court gave an even-handed and accurate recollection of
the courier's testimony. In addition, the court instructed the jurors to
rely upon their own recollection, even if it differed from that of the
court.
We therefore affirm the criminal judgment. We deny Ward's
renewed motion for remand to the trial court for a hearing on his inef-
fective assistance of counsel issues. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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