United States v. Felton ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5641
JAMES FELTON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5642
RICHARD MILLAN, a/k/a Richie,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5643
ALBERT SANDERS, a/k/a Bo Bo,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CR-93-88)
Submitted: February 20, 1996
Decided: March 19, 1996
Before HAMILTON and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
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COUNSEL
James J. Angel, Lynchburg, Virginia; J. Patterson Rogers, III, Dan-
ville, Virginia; Grady W. Donaldson, Jr., SCHENKEL & DONALD-
SON, P.C., Lynchburg, Virginia, for Appellants. Robert P.
Crouch, Jr., United States Attorney, Ruth E. Plagenhoef, Assistant
United States Attorney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
James Felton, Richard Millan, and Albert Sanders appeal their con-
victions by a jury on federal cocaine and firearms charges. Felton was
convicted of conspiracy to make false statements to purchase fire-
arms, 18 U.S.C.A. § 371 (West 1966 & Supp. 1995); aiding and abet-
ting the possession of crack cocaine with intent to distribute, 18
U.S.C. § 2 (1988), 21 U.S.C. § 841(a)(1) (1988); carrying a firearm
during a drug trafficking crime, 18 U.S.C.A. § 924(c)(1) (West 1995);
and five counts of aiding and abetting the making of false statements
to purchase a firearm, 18 U.S.C.A. § 924(a)(1)(A) (West 1995). Mil-
lan was convicted of conspiracy to make false statements to purchase
firearms and possession of cocaine with intent to distribute. Sanders
was convicted of conspiracy and aiding and abetting the use of false
statements to purchase a firearm. Felton also appeals the district
court's findings at sentencing that he was responsible for 125 grams
of crack cocaine and that he was an organizer or leader of a conspir-
2
acy involving five or more persons under USSG § 3B1.1(a).1 Finding
no error, we affirm.
Defendants' convictions arose from their association in Felton's
scheme to recruit straw purchasers--Yvonne and Eula Mae Felton,
Pamela Poteat, Eligah Motley, and others--to buy firearms from Vir-
ginia gun dealers. Defendants kept several of the firearms for personal
use and transported the remainder to New York to exchange for
money or crack cocaine. Felton and others then sold the crack cocaine
in Danville, Virginia. Witnesses testified that Felton was a crack
dealer. Eula Mae Felton, one of Felton's straw purchasers, testified
that Felton usually brought one to two ounces of crack back from his
trips to New York. On one occasion, he brought an eighth of a kilogram.2
She testified that Felton was the head of the guns-for-drugs operation.
Appellants claim the evidence at trial was insufficient to support
their convictions. Felton also raises two sentencing issues. We will
address these claims in turn.
I. Sufficiency of the Evidence.
This court will uphold a jury verdict if substantial evidence sup-
ports it. Glasser v. United States, 315 U.S. 60, 80 (1942). The inquiry
on appeal is whether any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt, viewing the evidence in
the light most favorable to the government. Jackson v. Virginia, 443
U.S. 307, 319 (1979). Circumstantial and direct evidence is consid-
ered, and the government enjoys all reasonable inferences which can
be drawn from the facts established. United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982). In resolving substantial evidence
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual, § 3B1.1
(Nov. 1994).
2 Eula Mae Felton testified that Felton bought an "eight," referring to
an eighth of a kilogram or 125 grams. Although Eula Mae did not know
the weight of an "eight," James Felton told her that its street value was
$13,000. Since Felton also told her that the street value of an ounce of
crack was $2500, it is reasonable to infer that"an eight" refers to a quan-
tity between four and five ounces, or an eighth of kilogram.
3
challenges, we do not weigh evidence or review witness credibility.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
A. Richard Millan.
Millan was convicted of conspiracy to make false statements to
purchase firearms, to deliver those firearms to persons known to
reside in another state, and to transport firearms across state lines. See
18 U.S.C.A §§ 371, 922(a)(3), (5), 924(a)(1)(A) (West 1966 & Supp.
1995). "To sustain a conviction for conspiracy under § 371, the gov-
ernment must prove an agreement or understanding between two or
more persons to commit a criminal act and an overt act by one of the
coconspirators in furtherance of the conspiracy." United States v.
Caudle, 758 F.2d 994, 997 (4th Cir. 1985) (citation omitted). A jury
may infer an agreement from the facts and circumstances of the case.
Id. Evidence must show a defendant's knowledge of the agreement
and some expression of his participation therein. Id.We find sufficient evidence to sustain the guilty verdict against
Millan for conspiracy. Eula Mae Felton testified that on August 23,
1992, Millan, Sanders, and another coconspirator, Chino, used her to
purchase firearms for them. Millan accompanied her to the gun store
and pointed out the firearm he wanted her to buy. 3 Nathan Daniels
testified that he was present when James Felton and Millan were
wrapping a gun to take to New York. Millan placed the gun in a duf-
fel bag. Pamela Poteat described Millan as Felton's"flunky." She
recalled an episode in which Millan phoned New York for Felton to
see "if they bought a gun and bullets how much they would get for
it."
Millan was also convicted of possession of cocaine with intent to
distribute. 21 U.S.C. § 841(a)(1). The Government introduced a vid-
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3 Millan claims on appeal that his acquittal on a substantive count of
making a false statement to purchase firearms reflects the jury's disbelief
of Eula Mae Felton's testimony. He asserts, therefore, that the evidence
against him must be reviewed on appeal without reference to her testi-
mony. However, no such inference may be drawn from Millan's acquittal
on the substantive count, even if the verdicts are logically inconsistent.
United States v. Powell, 469 U.S. 57, 62-65, 69 (1984).
4
eotape of Millan packaging a small quantity of crack cocaine from a
mirror as he talked with Felton. Felton was wearing a handgun in a
shoulder holster. As Millan bagged the cocaine, Felton poured beer
into a glass until it overflowed, to represent the size of "our business."
Eula Mae Felton testified that Millan dealt crack cocaine and stored
his supply in the ceiling tiles of her son's bedroom. Yvonne Felton
admitted buying cocaine from Millan in Danville. The Government's
evidence supports the inference that the videotape showed Millan
packaging crack cocaine for sale. See United States v. Harris, 31 F.3d
153, 156-57 (4th Cir. 1994).
B. Albert Sanders.
Sanders was convicted of conspiracy. Evidence at trial showed that
Sanders used Eula Mae Felton and Poteat as straw purchasers and
recruited Eligah Motley to purchase firearms, saying that Sanders and
James Felton were in the same "organization." Moreover, Sanders
took a shipment of firearms to New York to sell at James Felton's
behest. Unable to find a buyer, Sanders telephoned Felton from New
York, and Felton came to New York to complete the sale. We find
the evidence sufficient to show Sanders's participation in the firearms
scheme, his agreement with Felton and others, and numerous overt
acts in furtherance of the conspiracy. See Caudle, 758 F.2d at 997.
Sanders was also found guilty of the substantive crime of aiding
and abetting the making of a false statement to a gun dealer for the
purpose of purchasing a firearm. Sanders accompanied Eula Mae Fel-
ton to a gun store, selected the firearms he wanted, and used her to
purchase the guns on his behalf. Sanders's conduct is sufficient to
sustain a finding of guilt under § 924(a)(1)(A). See United States v.
Hartzog, 983 F.2d 604, 606-07 (4th Cir. 1993); United States v. Ortiz-
Loya, 777 F.2d 973, 981-82 (5th Cir. 1985).
C. James Felton.
We also find sufficient evidence to support the jury's finding that
James Felton conspired with others to buy firearms by means of straw
purchases in Virginia and to take the firearms to New York to
exchange for cash and cocaine. Several of Felton's co-conspirators
described how Felton recruited them to purchase guns for him to sell
5
in New York for crack cocaine. As noted above, Felton often accom-
panied the purchasers to the firearms dealers. Witnesses confirmed
that Felton dealt crack cocaine in Danville.
Felton was convicted of possession of cocaine with intent to dis-
tribute based upon the videotape evidence depicting him and Millan
discussing the size of their "business" while Millan packaged crack
cocaine. The tape showed Felton wearing a holstered 9mm handgun.
Felton claims on appeal that the evidence does not show that he pos-
sessed or intended to distribute Millan's cocaine.
Mere presence at a location where drugs are found or association
with someone possessing drugs is insufficient to establish possession.
United States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984). In this
case, however, witnesses testified concerning Felton's drug dealing
and leadership in the organization. Millan was described as Felton's
subordinate or "flunky." Moreover, as Millan bagged cocaine, Felton
portrayed the scope of their "business" by pouring beer into a glass
until it overflowed. See United States v. Echeverri, 982 F.2d 675, 678
(1st Cir. 1993) ("attendant circumstances" showing more than defen-
dant's mere presence). A reasonable juror could have inferred that
Felton had dominion and control over the cocaine and that he was part
of a group that collectively possessed the cocaine with intent to dis-
tribute. See United States v. Zandi, 769 F.2d 229, 234-35 (4th Cir.
1985); United States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985).
Because the videotape plainly shows Felton wearing a handgun while
meeting with Millan, who was packaging drugs for resale, sufficient
evidence also supports his conviction for carrying a firearm during a
drug trafficking crime. 18 U.S.C.A. § 924(c)(1).
Felton was convicted on five counts of aiding and abetting the use
of false statements to purchase a firearm. 18 U.S.C.§ 2; 18 U.S.C.A.
§ 924(a)(1). Felton's convictions stemmed from the following pur-
chases: (1) Eula Mae Felton's August 15, 1992, purchase for Felton
from Cedar Hill Gun, Skeet, and Swim Club; (2) Pamela Poteat's
November 23, 1991, purchase for Felton from Magun Force Gun
Sales; (3) Pamela Poteat's October 24, 1992, purchase from Raymond
Guns and Supplies; (4) Eligah Motley's October 4, 1993, purchase
from Raymond Guns and Supplies; and (5) Eligah Motley's October
22, 1992, purchase from Raymond Guns and Supplies. At trial, the
6
straw purchasers admitted buying these firearms for Felton. The Gov-
ernment also presented the falsified purchase forms used in the trans-
actions. This evidence is certainly adequate to sustain his convictions.
See Hartzog, 983 F.2d at 606-07; Ortiz-Loya, 777 F.2d at 981-82.
II. Felton's Sentence.
Felton objects to the sentencing court's finding that he was "an
organizer or leader of a criminal activity that involved five or more
participants," under USSG § 3B1.1(a). He also challenges the court's
attribution of 125 grams of crack cocaine to him for sentencing pur-
poses. Because Felton noted his objections at sentencing, the Govern-
ment was required to prove Felton's role in the conspiracy and the
drug amount by a preponderance of the evidence. See McMillan v.
Pennsylvania, 477 U.S. 79, 91 (1986). However, this court reviews
these district court findings only for clear error. United States v.
Hicks, 948 F.2d 877, 881 (4th Cir. 1991); United States v. Vinson, 886
F.2d 740, 742 (4th Cir. 1989), cert. denied, 493 U.S. 1062 (1990).
We find no clear error in this instance. Trial testimony established
that James Felton recruited and directed associates and straw purchas-
ers for his operation, including Yvonne Felton, Eula Mae Felton,
Poteat, Motley, Chino, Sanders, and Millan. Eula Mae Felton's asser-
tion that Felton was the head of the conspiracy is supported by the
testimony of the other witnesses. Similarly, the sentencing court did
not clearly err in crediting her testimony that James Felton sold at
least an eighth of a kilogram of crack cocaine during the conspiracy.
The number of guns purchased and witness testimony that Felton
imported and dealt crack in Danville over a period of years support
the district court's finding.
We affirm the judgments of the district court. 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
7