United States v. Drayton , 267 F. App'x 192 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4628
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRADON MARQUEZ DRAYTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:04-cr-00009-JPJ)
Argued: February 1, 2008 Decided: March 4, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Bettye Stephanie Commander, Charlottesville, Virginia, for
Appellant. Anthony Paul Giorno, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: John L.
Brownlee, United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Tradon Drayton of conspiring to possess with
intent to distribute five grams or more of cocaine base (“crack
cocaine”), in violation of 21 U.S.C. § 846 (2000) (“Count Five”);
using and carrying a firearm during and in relation to, and
possessing a firearm in furtherance of, a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1) (2000) (“Count Seven”);
violating § 924(c) while causing the death of a person through the
use of a firearm, in violation of 18 U.S.C. § 924(j) (2000) (“Count
Eight”); possessing a firearm after having been convicted of a
felony, in violation of 18 U.S.C. § 922(g)(1) (2000) (“Count
Nine”); and firing a weapon into a group of two or more persons in
furtherance of a major drug offense, in violation of 18 U.S.C.
§ 36(b)(1) (2000) (“Count Ten”). The district court sentenced
Drayton to concurrent 188-month sentences on Counts Five, Nine, and
Ten. Additionally, the court sentenced Drayton to a consecutive
60-month sentence on Count Seven, see 18 U.S.C. § 924(c)(1)(A)(I)
(2000), and a consecutive 300-month sentence on Count Eight, see 18
U.S.C. § 924(c)(1)(C)(I) (2000). Drayton appeals. Finding no
error, we affirm.
I.
Although Drayton’s convictions include events reaching back to
May 1999, his current claims focus exclusively on the incidents of
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July 16, 1999, so we recount only those facts. On that date,
Drayton and several associates visited an apartment complex on
Poplar Knob Road in Galax, Virginia, because they had earlier heard
that Drayton’s pet snake had met an untimely demise at the hands of
Billy King, the boyfriend of Poplar Knob resident Monica Beamer.
At Beamer’s apartment, a noisy confrontation between Drayton and
King ensued, during which a rival crack cocaine dealer known as
“Big D” entered Beamer’s apartment brandishing a gun and declaring
to all concerned, “Y’all messed up my money.” After an associate
of Big D’s named James Thornton defused the situation, Drayton and
his associates drove away from the apartment complex, only to turn
around on Drayton’s command a short distance away. Drayton exited
the vehicle and waited by the roadside in order to ambush Big D’s
car, which appeared several minutes later. After Drayton fired
several rounds from the side of the road, Big D emerged from the
car, exchanging gunfire with Drayton and inadvertently shooting
Thornton, the car’s driver, in the back of the head. Drayton and
Big D both fled, and when police arrived at the scene, only
Thornton’s body and the car remained.
II.
A.
Drayton first argues the district court erred when it denied
his Fed. R. Crim. P. 29 motion for judgment of acquittal on Count
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Eight. We review a district court’s decision to deny a Rule 29
motion de novo. United States v. Ryan-Webster, 353 F.3d 353, 359
(4th Cir. 2003). When, as here, the motion is based on an
allegation of insufficient evidence, the verdict must be sustained
if there is substantial evidence, taking the view most favorable to
the Government, to support it. See Glasser v. United States, 315
U.S. 60, 80 (1942). “[S]ubstantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc). We review both direct and circumstantial evidence and
permit the Government the benefit of all reasonable inferences from
the facts proven to those sought to be established. United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Witness
credibility is within the sole province of the jury, and we will
not reassess the credibility of testimony. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Drayton contends that the shooting on July 16, 1999, did not
occur “in relation to” a drug trafficking crime, as required under
§ 924(c). Yet at trial the Government introduced substantial
evidence that specifically linked Thornton’s death with Drayton’s
use of a firearm in relation to a drug trafficking crime.
Christopher Dattore testified that on July 16, 1999, he had gone to
the Poplar Knob apartments and purchased crack cocaine from an
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associate of Drayton, J. J. Reeves, as Drayton himself stood by,
holding a quantity of crack cocaine. Drayton then approached
Dattore and inquired why he had started buying drugs from Big D
rather than Drayton. As Dattore excused himself, he observed that
Drayton had an automatic handgun tucked into his front belt.
Furthermore, an eyewitness of the altercation in Beamer’s apartment
testified at trial that Big D’s statement, “Y’all messed up my
money,” meant that Big D was not going to tolerate Drayton
“starting trouble with everybody else” and interfering with Big D’s
“crack” cocaine business. Finally, a 2004 cellmate of Drayton’s,
Randy Rader, testified that Drayton told him that “him and another
person had got into an altercation, and that over a business
transaction,” clarifying that “the only business [Drayton] ever
spoke about was cocaine.” Taking this testimony in the light most
favorable to the Government, we can only conclude that the jury’s
verdict on Count Eight is supported by substantial evidence.
B.
Drayton next argues the district court erred when it denied
his motion to dismiss the indictment. Drayton claims that the
delay between the dates of alleged offense conduct in July 1999 and
his federal indictment in February 2004 prejudiced him.
Specifically, he maintains that the delay deprived him of the
ability to locate alibi witnesses and preserve critical evidence
like Thornton’s automobile, which was disposed of after Drayton’s
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state trial in 2000, in which he was acquitted of shooting at an
occupied vehicle. Drayton alleges that the delay violated his due
process rights.1
To determine whether pre-indictment delay violates the Due
Process Clause, we must examine: (1) whether Drayton can show he
has suffered any actual, substantial prejudice; and (2) if so,
whether the reasons for the delay justify the prejudice to him.
See United States v. Automated Med. Labs., Inc., 770 F.2d 399,
403-04 (4th Cir. 1985); see also Jones, 94 F.3d at 907. Drayton
bears the burden of proving actual prejudice, and he may not rely
on speculation to do so. See Automated Med. Labs., Inc., 770 F.2d
at 403-04. Review of the evidence indicates that Drayton has
failed to demonstrate actual prejudice.
First, regarding the missing witnesses, the testimony of one,
Billy King, would have been at best cumulative because several
other eyewitnesses to the argument in Beamer’s apartment testified
at trial and Drayton failed to assert what, if any, additional
evidence King would have provided. Although Drayton does claim
that his other witness, Cindy Rican, would allegedly have provided
an alibi concerning his whereabouts on July 16, her testimony
1
Drayton also claims that this delay violated his right to a
speedy trial under the Sixth Amendment. However, this right does
not attach until the defendant has been indicted or arrested. See
Jones v. Angelone, 94 F.3d 900, 906 n.6 (4th Cir. 1996)
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remains completely speculative, with nothing more than Drayton’s
own assertions offered as support.
Second, although Drayton alleges that the passage of time has
irreparably altered the scene of the crime, he fails to specify how
such changes have prejudiced his trial in any particular fashion.
We certainly will not speculate on this question given the
photographs and videotape that the Government submitted to the jury
that depicted the scene of the shooting.
Drayton’s third and final due process claim concerns the
destruction of Thornton’s automobile. At trial, Drayton’s
ballistics expert testified that he was unable to determine from
photographs the caliber of gun that caused the bullet holes in the
car door -- Big D’s 9mm or Drayton’s .22 caliber. However, in
light of the extensive other evidence presented at trial, we find
that Drayton has failed to show “that he was meaningfully impaired
in his ability to defend against the state’s charges to such an
extent that the disposition of the criminal proceeding was likely
affected.” Jones, 94 F.3d at 907. Even if the bullet holes could
have been definitively linked to Big D’s gun, it would not have
conclusively demonstrated that Drayton had not fired on Big D, only
that Big D had returned fire -- a fact that no one disputes.
Furthermore, the Government offered substantial evidence at
trial that Drayton fired at Thornton’s vehicle. Two of Drayton’s
own associates, Hans Reeves and Sherrard Gathers, offered
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eyewitness testimony that after driving away from the apartment
complex, Drayton directed Gathers to make a U-turn and pull off the
road, where he waited in ambush for several minutes. Both men
described how Drayton then emerged from the roadside and fired
repeatedly at Big D’s car. Moreover, police recovered four .22
shells at the crime scene in addition to a discarded .22 caliber
pistol that Frederick Voss testified he had sold to Drayton earlier
that July. The Government also introduced ballistics tests
demonstrating that the recovered .22 casings were fired from the
gun sold to Drayton by Voss. In light of this evidence, we
conclude that Drayton has failed to prove that he suffered actual
prejudice as a result of pre-indictment delay.2
C.
Drayton’s final claim is that the district court improperly
sentenced him to a consecutive 300-month term on Count Eight.
Drayton contends the district court should not have treated Count
2
Drayton also contends that the Government’s destruction of
evidence constitutes a due process violation. However, Drayton
fails to demonstrate that the missing vehicle “possess[es] an
exculpatory value that was apparent before the evidence was
destroyed,” California v. Trombetta, 467 U.S. 479, 488-89 (1984),
or that there was “bad faith on the part of the police,” Arizona v.
Youngblood, 488 U.S. 51, 57-58 (1988). Drayton argues that the
Youngblood “bad faith” requirement does not apply in the present
case because the exculpatory value of the car door is clear from
the fact it was preserved throughout Drayton’s state court trial.
But Drayton’s own forensic expert stated that the car door might
also provide inculpatory evidence that Drayton’s gun caused the
bullet holes. For these reasons, Drayton’s failure to preserve
evidence claim also fails.
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Eight as a second or subsequent § 924(c) conviction for sentencing
purposes, because that count charged a violation of the current 18
U.S.C. § 924(j) and relied on the same facts proven in Count Seven.
Drayton claims his conviction under Count Eight does not count as
a second § 924(c) conviction and asserts the sentencing provision
in § 924(c)(1)(C)(I) is inapplicable. Because the jury found him
responsible for manslaughter on Count Eight, Drayton argues that he
should have been sentenced under the federal manslaughter statute.
See 18 U.S.C. § 1112 (2000) (providing ten-year maximum for
voluntary manslaughter).
We agree with the district court’s finding that Counts Seven
and Eight serve as distinct convictions under § 924(c) for the
purpose of sentencing. Cf. United States v. Battle, 289 F.3d 661,
666 (10th Cir. 2002); United States v. Allen, 247 F.3d 741, 769
(8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002).
Drayton’s interpretation “would lead to the odd result that a
defendant convicted under § 924(c) is subject to an additional
consecutive sentence only in situations that do not result in a
death caused by use of the firearm.” Allen, 247 F.3d at 769. We
therefore conclude the district court sentenced Drayton properly.
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III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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