United States v. Michael Skipper ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4895
MICHAEL RAY SKIPPER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-97-4)
Submitted: March 9, 1999
Decided: June 8, 1999
Before NIEMEYER and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael Ray Skipper, Jr., Appellant Pro Se. Donald Ray Wolthuis,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Ray Skipper appeals his conviction on one count of con-
spiracy to possess with intent to distribute cocaine and cocaine base,
21 U.S.C. § 846 (1994), and four counts of possession with intent to
distribute or distribution of cocaine base, 21 U.S.C. § 841(a)(1)
(1994). Skipper contends that the Government failed to present ade-
quate evidence to support the conspiracy conviction and that there
were several trial errors. Finding no reversible error, we affirm.
Beginning in 1995 and continuing until January 1997, several law
enforcement agencies conducted a cooperative investigation of drug
and firearm trafficking in the city of Danville and Pittsylvania
County, Virginia. A multi-count indictment was filed in January
1997, charging Skipper and eight other individuals with various nar-
cotics offenses. Skipper and five co-conspirators were jointly tried
before a jury.
We examine challenges to the sufficiency of the evidence by view-
ing the evidence at trial in the light most favorable to the prosecution,
including all reasonable inferences that can be drawn from the evi-
dence. See Glasser v. United States, 315 U.S. 60, 80 (1942). The evi-
dence at trial consisted of testimony from investigators and
confidential informants. Investigators arranged for an informant,
Larry Cunningham, to purchase crack cocaine from Skipper on four
occasions. The transactions were audio recorded and videotaped.
Cunningham testified to the circumstances surrounding the four trans-
actions and led the jury through the videotape recordings. Skipper
told Cunningham that Robert Lee Trent, or "Junior Trent," supplied
him with the crack cocaine. During two of the transactions, Robert
Lee Trent was present and participated in the transaction. On one of
those occasions, Darryl Hoges was also present and participated.
The indictment stated that Darryl Hoges was also known as "Junior
Trent." During the trial another confidential informant, Cathy Ann
Johnson, stated that she knew Junior Trent to be Darryl Hoges and did
not know Robert Lee Trent.
2
Skipper contends that the Government presented insufficient evi-
dence to convict him of conspiracy. When assessing the sufficiency
of the evidence of a criminal conviction on direct review, the jury ver-
dict must be sustained if, "viewing [the evidence] in the light most
favorable to the Government, ``any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.'" United States v. Hudgins, 120 F.3d 483, 486 (4th Cir. 1997)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We afford
the Government all reasonable inferences that flow from the circum-
stantial and direct evidence, see United States v. Burgos, 94 F.3d 849,
858 (4th Cir. 1996) (en banc), and do not weigh the evidence or con-
sider the credibility of witnesses. See United States v. Arrington, 719
F.2d 701, 704 (4th Cir. 1983). The necessary elements to support a
conspiracy conviction include: (1) an agreement among the defen-
dants to do something illegal; (2) knowing and willing participation
in the agreement; and (3) an overt act in furtherance of the purpose
of the agreement. See United States v. Meredith , 824 F.2d 1418, 1428
(4th Cir. 1987). Knowledge and participation in the conspiracy may
be proved by circumstantial evidence. See id.In support of his claim, Skipper places great emphasis on the con-
fusion as to the identity of Junior Trent. He suggests that the name
Junior Trent was created to provide a link between a series of conspir-
acies. We find, however, that the evidence was clearly sufficient to
support the jury's finding that Skipper was involved in a conspiracy.
Cunningham testified as to Skipper's involvement with two other co-
conspirators. His testimony was supplemented by the videotape evi-
dence. Specifically, the evidence showed that Skipper relied on Junior
Trent to provide him with crack cocaine. Cunningham observed Skip-
per getting the crack cocaine from Robert Lee Trent. Furthermore,
there was direct evidence of Skipper, Trent, and Hoges providing
crack cocaine to Cunningham.
Skipper also contends that the district court should have severed his
trial from that of his co-conspirators. Skipper, who did not move for
a severance at trial, contends that severance was warranted because
the court admitted evidence of conspiracies in which he was not
involved and this evidence prejudiced his defense. Skipper also con-
tends that he needed the testimony of co-defendants.
3
Because Skipper did not seek a severance, we review only for plain
error.* See Fed. R. Crim. P. 52(b). To establish plain error, Skipper
must demonstrate that: "(1) the asserted defect in the trial was, in fact,
error; (2) the error was plain; and (3) the error affected his substantial
rights." United States v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997),
cert. denied, ___ U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998)
(No. 97-6989).
It is well established that defendants who are charged in the same
conspiracy should be tried together. See United States v. Reavis, 48
F.3d 763, 767 (4th Cir. 1995). The party seeking severance must
establish that he would be prejudiced from a joint trial, not that he
stood a better chance of acquittal had there been separate trials. See
United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992).
Because Skipper also contends that he needed the testimony of a co-
defendant, he must show: "(1) a bona-fide need for the testimony of
his co-defendant; (2) the likelihood that the co-defendant would tes-
tify at a second trial and waive his Fifth Amendment privilege; (3) the
substance of his co-defendant's testimony; and (4) the exculpatory
nature and effect of such testimony." Reavis , 48 F.3d at 767.
Skipper does not provide any facts supporting his claim that a sev-
erance was necessary. He does not refer to any evidence that preju-
diced his defense. Nor does he specify which co-defendants he
needed to have testify in his defense. Accordingly, we find no plain
error.
Skipper also contends that the district court improperly admitted
evidence of prior bad acts in violation of Fed. R. Evid. 404(b). There
is no indication, however, that evidence of prior bad acts was admit-
ted at all, much less improperly. The only evidence that Skipper states
was improper bad act evidence involved a weapon owned by a co-
defendant that was confiscated by police after a domestic quarrel.
Outside of the jury's presence, the co-defendant's counsel objected to
admission of the weapon. The Government agreed that the weapon
would not be used as direct evidence. Skipper fails to identify any
other evidence of prior bad acts that was improperly admitted. We
thus find this claim is without merit.
_________________________________________________________________
*Two co-defendants' motions for severance were denied.
4
Skipper further argues that the court admitted into evidence
improper hearsay testimony. However, Skipper actually identifies
only one instance of improper hearsay testimony. In that instance, the
district court sustained defense counsel's objection and instructed the
jury to disregard the statement. All other allegedly improper hearsay
evidence actually constituted admissions by Skipper, statements based
upon a witness's personal knowledge, or statements made by co-
conspirators in the course of and in furtherance of the conspiracy.
None of this testimony was erroneously admitted into evidence.
Skipper also contends that the prosecution violated a court order
and the federal rules of criminal procedure by not disclosing the
names of certain witnesses until trial. The prosecutor stated that he
was late in disclosing the names of some of the witnesses because
investigation as to what the witnesses could offer was ongoing. The
court permitted the prosecution to present the witnesses over defense
counsel's objection, but ordered the prosecutor to provide the defense
the substance of the witnesses' testimony before they testified.
We review a court's regulation of discovery matters for an abuse
of discretion. See United States v. Muse, 83 F.3d 672, 675-76 (4th Cir.
1996). Skipper fails to indicate how he was prejudiced by the court's
decision. He does not claim that the untimely disclosure led to his
counsel being unprepared. Nor does he claim with any specificity that
there was impeachment evidence that would have been revealed had
counsel more time to investigate the witnesses. For these reasons, we
find that the district court did not abuse its discretion.
Skipper maintains that the prosecution failed to disclose exculpa-
tory evidence. See Giglio v. United States, 405 U.S. 150 (1972);
Brady v. Maryland, 373 U.S. 83 (1963). This claim is without merit
because Skipper fails to specify any material evidence that was not
disclosed.
Skipper cites United States v. Singleton, 144 F.3d 1343 (10th Cir.
1998), in support of his contention that prosecutors improperly used
paid informants as trial witnesses. In the cited Singleton opinion, a
panel of the Tenth Circuit concluded that the Government violated 18
U.S.C. § 201(c)(2) (1994) by offering leniency to witnesses in
exchange for testimony. The panel opinion in Singleton, however,
5
was vacated by the en banc court, see United States v. Singleton, ___
F.3d ___, 1999 WL 6469 (10th Cir. Jan. 8, 1999) (No. 97-3178). We
decline to follow the now-vacated panel decision.
In addition, Skipper claims the prosecutor suborned perjury by hav-
ing the confidential informants give false testimony. Skipper contends
that because the confidential informants were paid for their testimony
or offered leniency, the testimony was false. He offers no other evi-
dence that the prosecutor knew the testimony was false. The jury
heard evidence regarding the benefits the confidential informants
received in exchange for their testimony. In spite of hearing that evi-
dence, the jury apparently found at least some of their testimony cred-
ible. We will not review the jury's credibility determinations. See
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
Skipper contends that the prosecutor magnified this error by
improperly bolstering Cunningham's and Johnson's testimony during
closing argument. Because there was no objection to the prosecutor's
closing remarks, we review only for plain error. See Mitchell, 1 F.3d
at 239. We find no such error because Skipper fails to point to any
evidence of improper bolstering or vouching for the witnesses' credi-
bility.
Skipper also asserts that evidence concerning the crack cocaine
sold during the four transactions should not have been admitted into
evidence because the Government failed to establish the proper chain
of custody. He makes a conclusory claim that since fifteen months
elapsed between seizure of the crack cocaine and its analysis, the sub-
stance analyzed may have not been the substance that was seized.
Skipper fails to mention that he stipulated not only to the admission
of the drug evidence and laboratory results but also to the chain of
custody. Thus, we find this claim without merit.
Finally, Skipper claims that in light of the denial of the severance
motion, the court should have instructed the jury to view the acts of
each defendant individually. Again, our review is limited to plain
error because there was no objection to the jury instructions at trial.
See United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998). We
find no such error. Because there was considerable evidence of Skip-
per's illegal conduct, we find no indication that the proceedings
6
against him resulted in anything other than a fair and reliable determi-
nation of guilt. See id. at 300.
Accordingly, we affirm Skipper's convictions and sentences. 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 in the decisional process.
AFFIRMED
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