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 1999-06

United States v. Malcolm Malik ( 1999 )


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  • UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4392
MALCOLM MALIK, a/k/a Elijah
Prince,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4419
CURTIS WINSLOW FULLER, a/k/a
Curtis Sherrill, a/k/a Winslow
Sherrill,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4424
BETTY REVONDA SHERRILL, a/k/a
"Bonda",
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-96-15-V)
Submitted: May 11, 1999
Decided: June 11, 1999
Before WIDENER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Aaron E. Michel, Charlotte, North Carolina; William E. Loose, Ashe-
ville, North Carolina; Noell P. Tinn, Charlotte, North Carolina, for
Appellants. Mark T. Calloway, United States Attorney, Gretchen C.
F. Shappert, Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals. Appellants Malcolm Malik, Curtis
Winslow Fuller and Betty Revonda Sherrill appeal their convictions
and sentences imposed for conspiracy to possess with intent to distrib-
ute and to distribute cocaine and crack cocaine, in violation of
    21 U.S.C. § 846
     (1994). Finding no error, we affirm.
We find the Government's evidence sufficient to sustain Fuller and
Malik's jury convictions. See United States v. Burgos,
    94 F.3d 849
    ,
2
857-62 (4th Cir. 1996) (en banc); United States v. Johnson,
    54 F.3d 1150
    , 1153 (4th Cir. 1995). We also find the trial court did not abuse
its discretion in admitting non-testifying co-defendant Sherrill's state-
ments regarding Malik being her source of crack cocaine. See Fed. R.
Evid. 801(d)(2)(E); United States v. Shores,
    33 F.3d 438
    , 442 (4th
Cir. 1994). We also note that even if there were error in the state-
ments' admission, it was harmless. See Brown v. United States,
    411 U.S. 223
    , 231-32 (1973); United States v. Eskridge,
    164 F.3d 1042
    ,
1044-45 (7th Cir. 1998). We decline to consider Malik's ineffective
assistance of counsel claim because ineffective assistance does not
conclusively appear from the record before us. See United States v.
Martinez,
    136 F.3d 972
    , 979 (4th Cir.), cert. denied,
    67 U.S.L.W. 3232
     (U.S. Oct. 5, 1998) (No. 97-9399).
In regard to Fuller's double jeopardy claim, we find no violation
of the Double Jeopardy Clause. See Heath v. Alabama,
    474 U.S. 82
    ,
88-89 (1985); In re Kunstler,
    914 F.2d 505
    , 517 (4th Cir. 1990). Nei-
ther did the trial court clearly err in finding that the Government's
strike of an African-American juror was racially neutral. See
Hernandez v. New York,
    500 U.S. 352
    , 358-59 (1991); Jones v.
Plaster,
    57 F.3d 417
    , 421 (4th Cir. 1995). Appellants' argument based
on
    18 U.S.C. § 201
     (1994) also fails. See United States v. Lowery,
    166 F.3d 1119
    , 1122-23 (11th Cir. 1999).
Finally, the court's reliance on the findings of the presentence
investigation report was sufficient for purposes of Fed. R. Crim. P.
32(c)(3)(D). See United States v. Walker,
    29 F.3d 908
    , 911-12 (4th
Cir. 1994). To the extent Fuller and Sherrill raise specific objections
to the amount of crack cocaine for which they were held responsible,
the evidence was sufficient to support the court's findings. See United
States v. Hicks,
    948 F.2d 877
    , 881 (4th Cir. 1991).
We affirm Appellants' convictions and sentences. We grant
Malik's motions to submit a pro se supplemental brief* and to file a
supplemental reply brief. We also grant the Government's motion to
_________________________________________________________________
*Although we grant Malik's motion to file a pro se supplemental brief
and have considered the claims raised therein, we find that they are with-
out merit. There is no showing of prosecutorial misconduct or of a due
process violation.
3
submit the case on the briefs because the facts and legal contentions
are adequately set forth in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
4